Opinion
Docket No. 118450.
Decided January 9, 1991, at 9:05 A.M.
Mark H. Cousens, for the plaintiff.
Butzel, Long, Gust, Klein Van Zile (by John P. Hancock, Jr., and Robert A. Boonin), for the defendant.
Before: McDONALD, P.J., and HOOD and REILLY, JJ.
Plaintiff appeals from a June 2, 1989, opinion and order granting defendant school district's motion for summary disposition in this suit concerning the application of § 1236 of the School Code, MCL 380.1236; MSA 15.41236, which grants substitute teachers who work at least 120 days in a school year preferential hiring rights to full-time teaching positions. We affirm.
Before its amendment, § 1236(2) provided:
A teacher employed as a substitute teacher for 120 days or more during a school year shall be given first opportunity to accept or reject a contract for which the person is certified, after all other teachers of the school district are reemployed in conformance with the terms of a master contract of an authorized bargaining unit and the employer.
1986 PA 72, effective April 7, 1986, amended subsection (2) and added subsection (3):
(2) A teacher employed as a substitute teacher for 120 days or more during a legal school year of not less than 180 days, or employed as a substitute teacher for 150 days or more by an intermediate school district that operates any program for 220 days or more as required by administrative rule, shall be given during the balance of the school year or during the next succeeding legal school year only, the first opportunity to accept or reject a contract for which the substitute teacher is certified, after all other teachers of the school district are reemployed in conformance with the terms of a master contract of an authorized bargaining unit and the employer.
(3) As used in this section, "day" means the working day of the regular, full-time teacher for whom the substitute teacher substitutes. A quarter-day, half-day, or other fractional day of substitute service shall be counted only as that fraction. However, a fraction of a day that is acknowledged by the school district and paid as a full day shall be counted as a full day for purposes of this section. [Emphasis added.]
These two versions of § 1236(2) are very similar. Both provide that an individual who is employed as a substitute teacher 120 days or more during a school year has a preferential right to be offered an employment contract as a full-time instructor in a position for which the individual was certified once all teachers of the school district are reemployed or recalled from layoff. In other words, a school district has a general obligation to offer regular employment to those who have been employed by the school district 120 days or more as substitute teachers before it can hire someone with no prior work experience with the school district.
The principal difference between the two versions of § 1236(2) is that the current version expressly provides that an individual's preferential hiring rights under the statute last only during the balance of the school year in which the substitute teaching services were performed or during the next succeeding legal school year. It is this difference between the two versions of the statute that lies at the heart of the controversy in the instant case.
Plaintiff, a substitute teacher employed by the defendant school district, worked approximately 146 1/2 days in the 1983-84 school year and 139 1/2 days in the 1984-85 school year. Additionally, plaintiff worked 115 full days and 5 half days during the 1985-86 school year. In August 1986, defendant hired at least two full-time teachers who lacked preferential hiring rights for positions for which plaintiff was qualified and certified.
Plaintiff filed the instant suit, ultimately claiming entitlement under the statute to a full-time teaching position on the basis of the days worked in the 1983-85 school years and the 1985-86 school year. Pursuant to defendant's motions, both theories were dismissed.
At issue on appeal is whether the statute as originally drafted or as amended is determinative of plaintiff's rights to a teaching position with defendant school district. Plaintiff contends that the amendment should not be applied retrospectively to deprive her of rights allegedly earned before the amendment's effective date. Plaintiff argues that at the time she worked more than 120 days during the 1983-84 and the 1984-85 school years, the statute contained no time limit with regard to her eligibility for the next opening for a full-time teaching position for which she is qualified. Thus, plaintiff claims that on the basis of her service during 1983-85, she should be entitled to preferential hiring indefinitely, irrespective of the amendment's later imposition of time limits. We disagree.
Although retrospective application of a law is improper when the law takes away or impairs vested rights acquired under existing laws or attaches a new disability with respect to transactions or consideration already passed, In re Certified Questions (Karl v Bryant Air Conditioning Co), 416 Mich. 558; 331 N.W.2d 456 (1982), plaintiff has failed to establish the existence of a vested right. A vested right has been described by our Supreme Court as an accrued cause of action where all the facts have become operative and are known. Id., p 573. Here, prior to the amendment, plaintiff had no tangible right, only the potential of a future job offer. The cause of action did not accrue until August 1986, the time defendant had available teaching positions, by which time plaintiff's employment preference had been extinguished by the amendment.
The concept of vested rights is explained more fully in Lahti v Fosterling, 357 Mich. 578; 99 N.W.2d 490 (1959), which involved retrospective application of an amendment of the workers' compensation act to allow the plaintiff the benefit of the improved medical care remedy for an injury that occurred, thus triggering the accrual of the cause of action, before the amendment. The majority in Lahti recognized:
The question of determining what is a vested right has always been a source of much difficulty to all courts. The right which defendants claim sprang from the kindness and grace of the legislature. It is the general rule that that which the legislature gives, it may take away. A statutory defense, or a statutory right, though a valuable right, is not a vested right, and the holder thereof may be deprived of it. [ 357 Mich. 588-589.]
Quoting People v Lowell, 250 Mich. 349, 354-356; 230 N.W. 202 (1930), the Lahti Court added:
An amendatory act has a repealing force, by the mechanics of legislation, different from that of an independent statute. Repugnancy is not the essential element of implied repeal of specifically amended sections. The rule is:
"Where a section of a statute is amended, the original ceases to exist, and the section as amended supersedes it and becomes a part of the statute for all intents and purposes as if the amendments had always been there." 25 RCL, Statutes, § 159, p 907.
* * *
Nevertheless, the old section is deemed stricken from the law, and the provisions carried over have their force from the new act, not from the former. 1 Lewis, Sutherland Statutory Construction (2d ed), § 237.
It is plain from the authorities in this State and elsewhere that the effect of an act amending a specific section of a former act, in the absence of a saving clause, is to strike the former section from the law, obliterate it entirely and substitute the new section in its place. The effect is not an arbitrary rule adopted by the courts. It is the natural and logical effect of an amendment "to read as follows." It accomplishes precisely what the words import. Any other construction would do violence to the plain language of the legislature. [ 357 Mich. 587 -588.]
Recently in Ludka v Dep't of Treasury, 155 Mich. App. 250; 399 N.W.2d 490 (1986), a panel of this Court held to be without merit the plaintiffs' claim that they had a vested right to a tax credit which was expressly retroactively restricted by a legislative amendment. Finding that, under Michigan standards, the question almost became one of title, the Court added:
It would seem that a right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another Minty v Bd of State Auditors, 336 Mich. 370, 390; 58 N.W.2d 106 (1953). [ 155 Mich. App. 259.]
The present case involves not a contractual term, but a legislatively created statutory right that was in the nature of a mere expectancy. Until it became vested, the Legislature was free not only to alter, but to extinguish it completely. Plaintiff thus is not entitled to preferential hiring rights on the basis of her 1983-85 service.
We also reject plaintiff's claim that the five half days worked during the 1985-86 school year prior to the April 7, 1986, amendment must be calculated as full days towards the 120-day requirement for that year, for the same reason that her claim based on the 1983-85 school years failed. Plaintiff had not worked 120 days when the statute was amended, nor was there a position available at that time. Her preference, based on days worked in the 1985-86 year at the time of amendment, was nothing more than an inchoate expectancy.
Plaintiff also claims that the trial court improperly relied upon the comments of legislators in finding that the amendment was intended to apply retrospectively. However, it is proper to seek legislative intent where such intent is clearly implied by the language of an amendment or by the circumstances surrounding its enactment. See Priest v Canada Life Assurance Co, 179 Mich. App. 731; 736; 446 N.W.2d 352 (1989), citing Hurd v Ford Motor Co, 423 Mich. 531; 377 N.W.2d 300 (1985). Williamston v Wheatfield Twp, 142 Mich. App. 714; 370 N.W.2d 325 (1985), cited by plaintiff, is inapposite. There, a panel of this Court found improper attempts to impeach a clear and unambiguous statute by the introduction of affidavits of individual legislators to evidence a contrary legislative intent. In the instant case, the trial court considered the Senate analysis of the proposed amendment when it considered the circumstances surrounding its enactment. We find no error.
Lastly, we are aware of no public policy, and plaintiff has provided no evidence of any, which would require a different conclusion. Generally, public policy considerations are matters for the legislative process.
Affirmed. No costs awarded.