Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  April 3, 2015                                                                     Robert P. Young, Jr.,
                                                                                               Chief Justice

                                                                                     Stephen J. Markman
                                                                                         Mary Beth Kelly
  149718                                                                                  Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano
                                                                                    Richard H. Bernstein,
  BEDFORD PUBLIC SCHOOLS,                                                                           Justices
           Respondent-Appellee,
  v                                                      SC: 149718
                                                         COA: 314153
                                                         MERC: 11-000642
  BEDFORD EDUCATION ASSOCIATION
  MEA/NEA,
           Charging Party-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the June 10, 2014
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        BERNSTEIN, J. (concurring).

        I write to express my concerns regarding the problematic drafting of MCL
  423.215b(1).

         Appellant teachers’ wages can be increased in two ways: by a “step increase,”
  which is a wage increase based on seniority, or by a “lane change,” an increase in the
  level of graduate education. MCL 423.215b(1), as amended by 2014 PA 322, states in
  relevant part:

               Except as otherwise provided in this section, after the expiration date
        of a collective bargaining agreement and until a successor collective
        bargaining agreement is in place, a public employer shall pay and provide
        wages and benefits at levels and amounts that are no greater than those in
        effect on the expiration date of the collective bargaining agreement. The
        prohibition in this subsection includes increases that would result from
        wage step increases. Employees who receive health, dental, vision,
        prescription, or other insurance benefits under a collective bargaining
        agreement shall bear any increased costs of maintaining those benefits that
        occur after the expiration date. [Emphasis added.]

  The issue presented here is whether the statute’s bar on wage increases applies to a lane
  change wage increase, which is not expressly listed in the statute.
                                                                                          2

       When applying the traditional rules of statutory interpretation to MCL
423.215b(1), it appears that the statute does not apply to pay increases as a result of a
lane change. First, “ ‘[i]n interpreting a statute, we [must] avoid a construction that
would render part of the statute surplusage or nugatory.’ ” Robinson v City of Lansing,
486 Mich 1, 21 (2010) (citation omitted) (alterations in original). To interpret the statute
to bar lane change wage increases would render the language specifying that wage step
increases are included in the statutory bar unnecessary. It seems clear that a step increase
is a wage increase; therefore, in order to give meaning to the Legislature’s explicit
inclusion of the phrase “step increase,” it must be that the statute does not bar all wage
increases. Although the mere use of the word “includes” does not give much guidance
about whether the list following is inclusive or exclusive, the doctrine of expressio unius
est exclusio alterius suggests the latter. The specific inclusion of “step increase” can be
read to imply the exclusion of a “lane change” wage increase. See Hoerstman Gen
Contracting, Inc v Hahn, 474 Mich 66, 74-75; 711 NW2d 340 (2006).

       However, some text in MCL 423.215b(1) supports the determination that a lane
change wage increase is also barred. The statute states that “a public employer shall pay
and provide wages and benefits at levels and amounts that are no greater than those in
effect on the expiration date of the collective bargaining agreement.” MCL 423.215b(1)
(emphasis added). As explained earlier, a teacher’s wage is determined by both lane
changes and step increases. Any lane change is ultimately an increase in the teacher’s
wages. Under the clear language of the statute, a teacher’s wage cannot increase while a
collective-bargaining agreement is not in place. Therefore, it would appear that any
change in a teacher’s status that would increase that teacher’s wage is barred by MCL
423.215b(1). Indeed, that interpretation makes sense considering that the statute even
requires teachers to bear any increased costs of insurance benefits while a collective-
bargaining agreement is not in place. Further, the legislative history of MCL 423.215b(1)
supports the contention that the Legislature sought to bar any and all increases to
teachers’ pay. 1 An explanation of the fiscal impact of House Bill 4152, which added




1
  I recognize that this Court will not consult legislative history when a statute is
unambiguous. See, e.g, In re Certified Questions from United States Court of Appeals for
the Sixth Circuit, 468 Mich 109, 116 (2003). However, I think that the legislative history
of 2011 PA 54, which enacted MCL 423.215b, is illustrative of the problem that this
statute presents.
                                                                                                                3

MCL 423.215b, explains that it would “prevent[] any wage increases (e.g., automatic
‘step increases’) . . . .” Senate Legislative Analysis, HB 4152 (H-2), March 16, 2011.
The inclusion of the phrase “e.g., . . . ‘step increases’ ” signifies an intent to make wage
“step increases” merely an example of the types of wage increases that are barred by
MCL 423.215b(1).

       The lack of clarity displayed by this statute demonstrates the danger posed by the
use of nonspecific lists in legislation. When lists do not expressly identify their scope—
whether the list is merely illustrative and inclusive or limited and exclusive—they can
lead to uncertainty, forcing the courts to step in. Had the Legislature in MCL
423.215b(1) stated that “[t]he prohibition in this subsection includes, but is not limited to,
increases that would result from wage step increases,” the Legislature’s intent would
have been clear. I encourage the Legislature in the future to be clearer in order to better
inform not only the courts of its intent, but the general public as well.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          April 3, 2015
        0331
                                                                              Clerk
