Bannan v. City of Saginaw

420 Mich. 376 (1984)

BANNAN
v.
CITY OF SAGINAW

Docket Nos. 70703-70705. (Calendar No. 6).

Supreme Court of Michigan.

Argued May 9, 1984. Decided December 28, 1984. Released January 17, 1985.

van Benschoten, Hurlburt & van Benschoten, P.C. (by Harvey E. van Benschoten and Lawrence A. Hurlburt), for the plaintiffs.

Braun, Kendrick, Finkbeiner, Schafer & Murphy (by Bruce L. Dalrymple and Timothy L. Curtiss) for the defendant.

Released January 17, 1985. Rehearing denied 421 Mich. 1202.

RYAN, J.

The plaintiffs in this case are three retired fire fighters who are eligible for both duty disability pensions under Saginaw's Policemen and Firemen Retirement System,^[1] and workers' compensation benefits. We are called upon to decide two issues. The first is whether the plaintiffs' duty disability pensions are subject to the offset provision found in § 129.1 of the Saginaw pension ordinance, so that their pension benefits can be reduced by the amount of workers' compensation benefits they receive. Both the Saginaw Circuit Court and the Court of Appeals held that the plaintiffs' pensions are not subject to such an offset. We agree.

The second issue presented for review is whether § 161 of the Michigan Worker's Disability Compensation Act, MCL 418.161; MSA 17.237(161), which allowed police or fire fighters to waive the provision of the WDCA in lieu of "like benefits" prescribed in a municipality's charter, is applicable to the facts of these cases. We hold that it is not, because the pension plan here was not prescribed in Saginaw's charter, but rather was provided by ordinance. Vasser v Muskegon, 415 Mich. 308; 329 NW2d 690 (1982) (opinion by WILLIAMS, J.).

All three plaintiffs in this case, James H. Bannan, George J. Kaufman, and Raymond J. Hale, were employed as fire fighters by the City of Saginaw. In 1978, each plaintiff filed a complaint against the city in the Saginaw Circuit Court, contesting the city's practice of deducting from his disability pension benefits the full amount of weekly workers' compensation benefits he received. The deductions were made pursuant to § 129.1 of the Saginaw City Ordinance. The consolidated actions involve similar facts, all of which were stipulated in the trial court.

Mr. Bannan was employed by the city from 1942 until 1967. Since March 1, 1967, he has received weekly workers' compensation benefits of $69 or $3,588 annually, pursuant to a decision of the Bureau of Workers' Disability Compensation. Mr. Bannan became 55 years of age^[2] on March 1, 1969, and was retired by the city on May 23, 1969, under the duty disability retirement provision of the city's pension ordinance. Ord. No. D-1, ch 5, art 1, § 123.1. At this time, he became entitled to an annual pension of $3,479.06. However, since May 23, 1969, the city has deducted the full amount of weekly workers' compensation benefits paid to Mr. Bannan from the amount of pension benefits to which he is entitled as a disability retirant. Since the amount of his workers' compensation benefits exceeded his pension benefits, he has received no money from the Policemen and Firemen Retirement System of Saginaw. The amount of offsets in controversy totals $26,383.65.

Mr. Kaufman worked for the city from 1938 until 1973. He became 55 years of age on May 20, 1971. On November 21, 1974, the city voluntarily began paying Mr. Kaufman weekly workers' compensation benefits, paid retroactively to September 20, 1973, of $104 per week or $5,408 annually. The parties stipulated in the trial court that Mr. Kaufman is entitled to duty disability retirement status as of September 20, 1973. The annual pension to which he is entitled is $10,408.84. Mr. Kaufman's pension benefits have also been offset by the amount of workers' compensation benefits received, and the amount in controversy is $33,040.65.

Mr. Hale worked as a Saginaw fire fighter from 1949 until 1974. On March 9, 1974, the city voluntarily began paying him workers' compensation benefits in the amount of $106 per week, or $5,512 annually. He became 55 years of age on September 14, 1974, and was granted a duty disability pension on that date, in the amount of $8,035.30 annually. As with Messrs. Bannan and Kaufman, the city deducted the full amount of Mr. Hale's workers' compensation benefits from his pension benefits. The accumulated offset in controversy is $28,254.65.

In a consolidated opinion, the circuit court found in favor of the plaintiffs. Applying established rules of statutory construction, it concluded that § 129.1 of the city's pension ordinance, which mandates the offset of workers' compensation benefits against pension benefits, is not applicable to a duty disability retirant after he attains 55 years of age. The judgments entered in favor of each of the plaintiffs required the city to reimburse the plaintiffs for pension payments wrongfully withheld, awarded interest on the amount due, and enjoined the city from deducting workers' compensation benefits paid or payable from future pension benefits payable to the plaintiffs. The Court of Appeals affirmed in a per curiam opinion decided October 7, 1982. Bannan v City of Saginaw, 120 Mich. App. 307; 328 NW2d 35 (1982). The city's application for rehearing was denied on November 18, 1982. We granted leave to appeal. 418 Mich. 880 (1983).

I

APPLICATION OF OFFSET PROVISION (§ 129.1) OF SAGINAW PENSION ORDINANCE TO OVER-55 DUTY-DISABLED RETIREES

Saginaw's pension ordinance, which contains the city's Policemen and Firemen Retirement System, provides for an offset of workers' compensation benefits against pension benefits:

"Any workmen's compensation which may be paid or payable to a member retirant or beneficiary on account of his city employment shall be offset against any pensions payable to such member, retirant or beneficiary. In case the present value of the workmen's compensation is less than the pension reserves for the pension payable under this ordinance, the present value of such workmen's compensation shall be deducted from such pension reserves and such pensions as may be provided by the pension reserves so reduced shall be payable under the provisions of this article." Ord. No. D-1, ch 5, art 1, § 129.1.

The plaintiffs retired under §§ 123-124, which provide for work-related disability pensions. Section 123 provides, in part:

"A member who becomes physically or mentally totally incapacitated for duty, as a policeman or fireman in the employ of the city, by reason of a personal injury or disease, which the board of trustees finds to have occurred as the natural and proximate result of causes arising out of and in the course of his employment with the city, and the medical director, after a physical examination of such member, certifies to the board that such member is physically or mentally totally incapacitated to perform the duties of a policeman or fireman in the employ of the city, shall be retired by the board upon written application filed with the board by the said member or his department head. * * * [Appeal procedure omitted] * * * Upon his retirement he shall be entitled to a pension provided in Section 124." Ord. No. D-1, ch 5, art 1, § 123.1.

Section 124 provides:

"124.1 A member, who retires at or after his attainment of age 55 years on account of disability, as provided in Section 123, shall receive a disability pension computed according to Section 118. Upon his retirement he shall have the right to elect, in lieu of his straight life disability pension, to receive his disability pension under an option provided for in Section 120.

"124.2 A member who retires prior to his attainment of age 55 years on account of disability, as provided in Section 123, shall receive a disability pension computed according to Subsections 118.1 and 118.3. For the exclusive purpose only of computing his disability pension his credited service shall be increased by the number of years, and fraction of a year, in the period from the date of his disability retirement to the date he would attain age 55 years. Upon his attainment of age 55 years his disability pension shall be recomputed using a final average salary determined according to the salaries at the time he attains age 55 years for the ranks used in computing his final average salary at the time of his disability retirement. In no event shall such recomputed disability pension be less than the disability pension he received prior to his attaining age 55 years. Upon his retirement he shall have the right to elect, in lieu of a straight life disability pension, to receive his disability pension under an option provided for in Subsection 120. To his attainment of age 55 years his disability pension shall be subject to Sections 128 and 129." Ord. No. D-1, ch 5, art 1, §§ 124.1, 124.2 (emphasis added).

Each of the plaintiffs retired at or after age 55 pursuant to § 124.1. Section 124.1 contains no reference to the workers' compensation benefits offset provision of § 129.1. In contrast, § 124.2, which applies to members who retire before age 55, expressly provides that the § 129.1 offset provision is applicable to duty disabled retirees until they reach 55 years of age.^[3] The question, therefore, is whether the § 129.1 offset provision applies to duty disabled retirees who retire under § 124.1, as did these plaintiffs.

Finding an ambiguity in the pension ordinance, the Court of Appeals employed three familiar rules of statutory construction and applied them to the ordinance to interpret its meaning. Bannan, supra, pp 319-321. Firstly, applying the rule that specific provisions control over general ones in the same statute, the Court of Appeals found that "the last sentence of § 124.2 took precedence over the more general provision of § 129." Bannan, supra, p 320. Secondly, the Court of Appeals noted that all language in a statute is presumed to have meaning and no part of a statute should be treated as surplusage. In response to the city's argument that the purpose of the last sentence of § 124.2 is merely to emphasize that under-55 duty disabled retirees are subject to the § 129 offset, the Court of Appeals stated that such an interpretation would render the last sentence of § 124.2 surplusage. Bannan, supra, p 320. The Court therefore concluded that the logical interpretation of § 124 is that the offset applies to duty disabled retirees until age 55, but does not apply thereafter. Bannan, supra, p 320. Thirdly, the Court of Appeals construed the ordinance as a whole, finding that § 129 is expressly cross-referenced in three different sections: "(1) in § 122.1 relating to a retirant taking a nonduty disability retirement; (2) in §§ 127.1(b)-127.1(e) pertaining to pensions payable to widows, children, and dependents; and (3) in § 124.2, as previously noted, pertaining to a duty-disabled retiree up to 55 years of age." Bannan, supra, p 320. The Court concluded that, since § 124.1 does not refer to § 129, the general offset language of § 129 "only applies when expressly cross-referred." Bannan, supra, p 321. Therefore, the Court of Appeals held that the trial court correctly determined that the § 129 offset does not apply to the plaintiffs, duty disabled retirees who retired after attaining age 55 under § 124.1. Bannan, supra, p 321.

Appellant, City of Saginaw, contends that the same rules of statutory construction employed by the Court of Appeals compel the opposite conclusion.

We are satisfied that the Court of Appeals interpretation of the pension ordinance is the correct one, and we agree with the reasoning and result of that portion of its opinion. Moreover, this interpretation is consistent with the policy behind the pension system involved in this case, which is funded in part by mandatory wage contributions. Ord. No. D-1, ch 5, art 1, § 131.2. Members of the system do not participate in the federal social security system. They may take a voluntary retirement at age 55. See footnote 2. We agree with the plaintiffs' contention that to deprive duty disabled retirees of their earned retirement income, after they have become 55 years of age, is contrary to the underlying purpose of the pension ordinance.

Our holding that the § 129.1 offset does not apply to these plaintiffs is also consistent with the policy of liberally construing pension laws in favor of the intended beneficiaries. O'Connell v Dearborn Pension Board, 334 Mich. 208, 214-215; 54 NW2d 301 (1952). For these reasons, we hold that the pension benefits of duty disabled retirees who retire pursuant to § 124.1 of Saginaw's pension ordinance, Ord. No. D-1, ch 5, art 1, are not subject to the § 129.1 offset of workers' compensation benefits.

II

APPLICABILITY OF § 161 OF WORKER'S DISABILITY COMPENSATION ACT

The second issue presented is whether § 161 of Michigan's Worker's Disability Compensation Act, MCL 418.161; MSA 17.237(161), is applicable to the facts of this case. In pertinent part, § 161 provided:^[4]

"Policemen, firemen, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof such like benefits as are prescribed in the charter but shall not be entitled to like benefits from both. Nothing contained in this act shall be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees." MCL 418.161; MSA 17.237(161). (Emphasis added.)

Saginaw's City Charter contains the following language:

"A complete retirement system shall be provided for policemen and firemen of the city by general ordinance." Ch XVI, § 1, amended effective January 1, 1965.

The Policemen and Firemen Retirement System is set forth in the city's ordinances, as discussed above. The issue, then, is whether the "like benefits" provision contained in § 161 of the WDCA is applicable where the retirement plan is provided by ordinance, adopted pursuant to a general provision in the charter.

In its discussion of this issue, the Court of Appeals distinguished Johnson v Muskegon, 61 Mich. App. 121; 232 NW2d 325 (1975), in which a different panel of the Court of Appeals held that benefits received under a disability retirement plan prescribed in Muskegon's City Charter were "like benefits" under § 161. The Court found that Johnson was distinguishable from this case, in part because the pension benefits in Johnson were set forth in the city charter. Bannan, supra, p 322. The Court further held that the disability benefits in this case are "primarily retirement benefits," and therefore not "like benefits" under § 161. Visiting Judge R.B. MARTIN concurred in the per curiam opinion below, but found it unnecessary to decide whether the pension and workers' compensation benefits were "like benefits" because the pension benefits are provided by ordinance and, therefore, § 161 is inapplicable.

After the Court of Appeals released its decision in this case, we decided Vasser v Muskegon and Plough v Muskegon, 415 Mich. 308; 329 NW2d 690 (1982). In those companion cases, we were confronted with the precise issue presented here. Vasser and Plough involved facts similar to these. A fireman and policeman employed by the City of Muskegon were granted duty disability pensions. Muskegon's retirement plan had previously been prescribed in the city charter, but, in 1973, the charter was amended to read as follows:

"A complete retirement system shall be provided for policemen and firemen of the City of Muskegon, by general ordinance." Vasser, supra, p 312.

In both Vasser and Plough, the Workers' Compensation Appeal Board affirmed the hearing referee's decision that the plaintiffs were required to elect between pension benefits and workers' compensation benefits pursuant to § 161 and Johnson v Muskegon, supra. The Court of Appeals affirmed the WCAB. Vasser, supra, p 318.

In Vasser, this Court was equally divided on the issue of the applicability of § 161 to cases in which the benefits are prescribed in an ordinance adopted pursuant to a general provision in the charter. Justice WILLIAMS, in an opinion joined by Chief Justice FITZGERALD and Justice RYAN, held that "the language clearly states that the like benefits must be prescribed in the charter, and, thus, there is no room for judicial interpretation." Vasser, supra, p 320. The opinion states:

"We are bound by the clear statutory language and thus conclude that like benefits must be prescribed in the charter itself for MCL 418.161; MSA 17.237(161) to be applicable. We hold that the pension benefits in these cases being received pursuant to an ordinance do not satisfy the statutory language, even though the ordinance was enacted pursuant to the charter." Vasser, supra, p 321 (emphasis added).

In response to Muskegon's contention that § 161 is applicable because the city charter refers to the retirement plan, Justice WILLIAMS stated that such a reference fails to satisfy the clear language of the statute. Vasser, supra, p 321. Moreover, the distinction between a charter pension plan and a plan provided by ordinance "is more than a matter of form," since a home-rule city's charter may only be amended with the electorate's approval, while the enactment of an ordinance is a much simpler procedure.^[5]Vasser, supra, p 321. Justice WILLIAMS' opinion concluded that, under the clear and unambiguous language of the statute, the plaintiffs, if entitled, could receive both the pension benefits and workers' compensation benefits. Vasser, supra, p 323.

In an opinion authored by Justice LEVIN, however, three members of the Court were "of the opinion that the details of ``like benefits' need not be set forth in the charter." Vasser, supra, p 326.^[6] Instead, they construed the words "having charter provisions prescribing like benefits" as meaning the charter may direct, authorize, or provide for "like benefits." Holding that the reference to a policemen and firemen retirement system in the Muskegon charter satisfied the relevant language of § 161, Justice LEVIN went on to conclude that the benefits provided by the Muskegon ordinance were "like benefits." Vasser, supra, pp 326-327. Thus, the Court of Appeals decision was affirmed by an equally divided Court.

For the reasons given by Justice WILLIAMS in his opinion in Vasser, we are persuaded that § 161 is not applicable to the case before us. Where the language of a statute is clear and unambiguous, the court's role is to apply it as written. Dussia v Monroe County Employees Retirement System, 386 Mich. 244, 248-249; 191 NW2d 307 (1971).

Our resolution of this issue makes it unnecessary for us to determine whether the pension benefits in this case are "like benefits" under § 161 of the WDCA, MCL 418.161; MSA 17.237(161).

The decisions of the Court of Appeals and the circuit court are affirmed.

WILLIAMS, C.J., and BRICKLEY, CAVANAGH, and BOYLE, JJ., concurred with RYAN, J.

LEVIN, J. (dissenting).

This Court granted leave to appeal to resolve a controversy concerning the construction of the provision of the workers' compensation act providing that police or fire department employees, or their dependents, in municipalities or villages "having charter provisions prescribing like benefits, may waive the provisions of this act and accept in lieu thereof such like benefits as are prescribed in the charter but shall not be entitled to like benefits from both." MCL 418.161(1)(a); MSA 17.237(161)(1)(a). (Emphasis supplied.)

In Vasser v City of Muskegon, 415 Mich. 308, 311; 329 NW2d 690 (1982), this Court was evenly divided on the question whether duty disability pension benefits provided under Muskegon's ordinance were encompassed within the meaning of "having charter provisions prescribing like benefits." (Emphasis supplied.)

The opinion of the Court in the instant case adopts the view of three justices in Vasser that benefits are not prescribed by the charter "even though the ordinance was enacted pursuant to the charter"; "the like benefits must be prescribed in the charter itself." Vasser, supra, pp 321, 313 (WILLIAMS, J.). We adhere to the view we expressed in Vasser that where, as in Vasser and here, the charter provided that a "complete retirement system shall be provided for policemen and firemen of the city by general ordinance"^[1] (emphasis supplied), benefits provided in an ordinance, adopted pursuant to such a charter direction to provide therefor, are prescribed by the charter although the details of the benefits are set forth in an ordinance and not in the charter itself.

We would construe the words "charter provisions prescribing like benefits" (emphasis supplied), as meaning benefits authorized, provided for, or directed to be provided for in the charter. "We believe this construction is consistent with and implements the apparent legislative purpose of barring double recovery." Vasser, supra, p 326 (LEVIN, J.).

Within seven months after our 3-3 indecision in Vasser, the Legislature clarified its intention by amending the statute to eliminate the word "charter"; the operative language is now "providing like benefits."^[2]

Our 3-3 division in Vasser indicated an unresolved controversy concerning the construction of the statute. In such circumstances, a legislative change has been regarded as a "clarification," and the meaning resulting from the clarification as the originally intended meaning. See Detroit Edison Co v Dep't of Revenue, 320 Mich. 506, 520-521; 31 NW2d 809 (1948), where this Court said:

"In 1 Sutherland Statutory Construction (3d ed 1943), p 418, § 1931, it is said:

"``If the amendment was enacted soon after controversies arose as to the interpretation of the original act, it is logical to regard the amendment as a legislative interpretation of the original act — a formal change — rebutting the presumption of substantial change.'

"See, also, Attorney General v Lewis, 151 Mich. 81 [1908]; Hambel v Lowry, 264 Mo 168 (174 S.W. 405) [1915]; John Morrell & Co v Unemployment Compensation Commission, 69 SD 618 (13 NW [2d] 498) [1944].

"In view of the factual situation existing at the time of the amendment it is a logical conclusion that the primary purpose of the legislature was, as above indicated, to clarify the statute because of the differences of opinion existing between the department of revenue and the board of tax appeals. Plaintiff's claim as to the force and effect to be given the amendment is not tenable. The presumption on which such claim is based does not obtain."

The parties have not discussed whether the 1983 amendment, which substituted the amendatory language for the former language, has retroactive effect.

The conclusion of the opinion of the Court that benefits provided in an ordinance are not within the intendment of the statute makes it unnecessary for the majority to address the question whether the benefits in the instant case are "like benefits." Since the majority does not reach that question, we also express no opinion thereon.

KAVANAGH, J., concurred with LEVIN, J.

NOTES

[1] Ordinance No. D-1 (Saginaw Administrative Code), ch 5, art 1 (hereinafter "pension ordinance").

[2] Saginaw fire fighters may take a voluntary retirement at age 55. Ord. No. D-1, ch 5, art 1, § 102.1(u).

[3] Two other provisions of the pension ordinance also contain express references to the § 129.1 offset. Ord. No. D-1, ch 5, art 1, § 122.1 (nonduty disability retirees); §§ 127.1(b)-127.1(e) (pensions payable to widows, children, and dependents).

[4] This statute was amended, immediately effective July 24, 1983, to read as follows:

"Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state providing like benefits, may waive the provisions of this act and accept like benefits that are provided by the municipality or village but shall not be entitled to like benefits from both the municipality or village and this act; however, this waiver shall not prohibit such employees or their dependents from being reimbursed under section 315 for the medical expenses or portion of medical expenses that are not otherwise provided for by the municipality or village. This act shall not be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees." MCL 418.161; MSA 17.237(161).

The parties apparently agree that, since the plaintiffs' complaints were filed and the decisions of the circuit court and Court of Appeals rendered before this amendment was enacted, it does not apply to this case. Therefore, we express no opinion as to its meaning or applicability.

[5] In Cichecki v Hamtramck, 382 Mich. 428, 435; 170 NW2d 58 (1969), we stated that "``[l]ike benefits' must be legally enforceable rights dependent on the charter and not reliant on the good will of the city council."

[6] Justice KAVANAGH and Justice COLEMAN concurred. Justice RILEY took no part in the decision.

[1] Saginaw City Charter, Ch XVI, § 1. In Vasser, the words "of Muskegon" follow the word "city." See Vasser v Muskegon, 415 Mich. 308, 326; 329 NW2d 690 (1982) (WILLIAMS, J.). Muskegon City Charter, Ch XIX, § 1.

[2] 1983 PA 162, approved July 24, 1983, with immediate effect; MCL 418.161(1)(a); MSA 17.237(161)(1)(a) reads in relevant part:

"Police officers, fire fighters, or employees of the police or fire departments, or their dependents, in municipalities or villages of this state providing like benefits, may waive the provisions of this act and accept like benefits that are provided by the municipality or village but shall not be entitled to like benefits from both the municipality or village and this act; however, this waiver shall not prohibit such employees or their dependents from being reimbursed under section 315 for the medical expenses or portion of medical expenses that are not otherwise provided for by the municipality or village. This act shall not be construed as limiting, changing, or repealing any of the provisions of a charter of a municipality or village of this state relating to benefits, compensation, pensions, or retirement independent of this act, provided for employees."