             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                             COURT OF APPEALS


 TRUGREEN LIMITED PARTNERSHIP,                                            FOR PUBLICATION
                                                                          April 10, 2020
                 Plaintiff-Appellant,

 v                                                                        No. 344142
                                                                          Court of Claims
 DEPARTMENT OF TREASURY,                                                  LC No. 17-000141-MT

                 Defendant-Appellee.


Before: SHAPIRO, P.J., and GLEICHER and SWARTZLE, JJ.

SWARTZLE, J. (dissenting)

        Some tax cases present questions of byzantine statutory construction. One’s Latin must be
refreshed, venerable treatises and opinions consulted, the warp and woof of the code analyzed, all
in an effort to unearth the meaning of oft-obscure, technical language.

        This is not one of those cases—or, rather, it should not have been one.

         As it must, the legal analysis follows, but the analysis seems superfluous. The reasonable
reader knows what “things of the soil” means, a vegetative entity of some sort (e.g., a wheat plant,
a shrub). This reader knows that every “product” is a thing, but not every “thing” is a product, so
it logically follows that every “product of the soil” (a/k/a agricultural product) is a thing of the soil,
but not every “thing of the soil” is a product of the soil. This reader knows that farmers plant seeds
and care for plants so that agricultural products can be reaped, but this reader also knows that
others plant seeds and care for plants for purposes apart from such reaping. This reader knows
that when the Legislature removes words that were actually in a statute or bill (e.g., “agricultural
product,” “agricultural production,” “agricultural purpose”), it does so for a reason. This reader
knows that an imprecise label like “agricultural-production exemption” does not become more
precise through mere repetition. And last but certainly not least, this reader knows that, under the
separation of powers enshrined in our Constitution, the Executive and Judicial branches are
supposed to defer to the Legislature on matters of public policy like tax law. This is all that a
reasonable reader needs to know to conclude that the taxpayer in this case is entitled to the use-tax
exemption.




                                                   -1-
        The majority and department, however, read things differently. Because I cannot abide
their reading, I respectfully dissent.

                      I. STATUTORY INTERPRETATION IN GENERAL

       Under separation-of-powers principles, courts must give effect to the Legislature’s intent
as expressed in statute absent a particular constitutional constraint. “Courts may not speculate
regarding legislative intent beyond the words expressed in a statute.” Detroit Pub Sch v Conn, 308
Mich App 234, 248; 863 NW2d 373 (2014) (cleaned up).

        Therefore, to determine the meaning of a statute, we must first look to the text. When
doing so, we must consider both the meaning of the particular term or phrase at issue as well as its
statutory context and history. People v Pinkney, 501 Mich 259, 268 & 276-277 n 41; 912 NW2d
535 (2018); 2000 Baum Family Trust v Babel, 488 Mich 136, 175; 793 NW2d 633 (2010). “If the
language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent
and judicial construction is not permitted.” Universal Underwriters Ins Group v Auto Club Ins
Ass’n, 256 Mich App 541, 544; 666 NW2d 294 (2003) (cleaned up). “Only when ambiguity exists
does the Court turn to common canons of construction for aid in construing a statute’s meaning.”
D’Agostini Land Co, LLC v Dep’t of Treasury, 322 Mich App 545, 554-555; 912 NW2d 593
(2018). “A statutory provision is ambiguous only if it irreconcilably conflicts with another
provision, or when it is equally susceptible to more than a single meaning.” Id. at 554 (cleaned
up).

          II. THE TEXT, CONTEXT, AND HISTORY OF “THINGS OF THE SOIL”

        To begin, I focus initially on the actual semantic meaning of the “things of the soil,” then
on the actual syntactic context of that phrase, and finally on the full statutory and legislative history
of the exemption. This approach comports with the “fair reading” school of interpretation: “The
interpretation that would be given to a text by a reasonable reader, fully competent in the language,
who seeks to understand what the text meant at its adoption, and who considers the purpose of the
text but derives purpose from the words actually used.” Scalia & Garner, Reading Law: The
Interpretation of Legal Texts, (St. Paul: Thompson/West, 2012), p 428.

       The Specific Text. The parties agree that TruGreen’s refund claims are subject to the
following exemption from the use tax:

                Property sold to a person engaged in a business enterprise and using and
        consuming the property in the tilling, planting, caring for, or harvesting of the
        things of the soil or in the breeding, raising, or caring for livestock, poultry, or
        horticultural products, including transfers of livestock, poultry, or horticultural
        products for further growth. . . . [MCL 205.94(1)(f), as amended by 2012 PA 474.]

Although the statutory provision can be subdivided in various ways, and some parts have no
relevance to the dispute here (e.g., breeding of livestock), the provision sets forth two conditions
relevant to this dispute that must be satisfied to qualify for the use-tax exemption—(1) the taxpayer
must be engaged in a business enterprise; and (2) the property sold to the taxpayer must be used
by that taxpayer for “planting” or “caring for . . . the things of the soil.” There are no other listed

                                                  -2-
conditions or exceptions found in the text of MCL 205.94(1)(f) that are relevant to TruGreen’s
refund claims. Nor have the parties brought to the Court’s attention any other provision of the tax
code that expressly conditions or otherwise restricts TruGreen’s claims, and my own review has
likewise found none.

         On its face, this provision has a rather straightforward application. If a taxpayer is engaged
in a business enterprise, and if the business activity—with the attendant costs for property used to
engage in the activity—includes planting or caring for “things of the soil,” then the taxpayer
qualifies for an exemption from the use tax. The phrase “things of the soil” is not defined in the
statute, nor has it “acquired a unique meaning at common law” that should be read into the statute.
Pinkney, 501 Mich at 273 (cleaned up). Turning to The Oxford English Dictionary (1933), the
most relevant definitions of “thing” in this context are “An entity of any kind” and “Applied
(usually with qualifying word) to a living being or creature; occasionally to a plant,”1 and the
phrase “of the soil” seems clearly to mean that the living being or entity comes from, lives in, is
connected with, or is otherwise related to soil. And considering that each of the activities listed—
“tilling, planting, caring for, or harvesting”—somehow involves vegetative growth (as opposed to
worms and the like), it is evident that “things of the soil” means some kind of vegetative being or
entity, i.e., beings or entities belonging to the plant kingdom.

        With respect to TruGreen, the record confirms that it is a business enterprise and that it
plants grass seed for some of its customers. More generally, in its brief on appeal, the department
has conceded that TruGreen “cares for its customers’ lawns, trees, and shrubs,” and in the next
sentence the department equates this with “caring for the things of the soil.” The record supports
this concession. Thus, based on a plain reading of the operative language of the tax exemption, it
would appear that TruGreen is off to a good start.

        The Broader Statutory Context. Turning to the broader statutory context, a careful analysis
of the context supports this plain reading. To begin, the operative use-tax exemption language
from the 2012 version can be grammatically outlined as follows:

          The following are exempt from the tax levied under this act,
              o Property sold
              o to a person
              o engaged in a business enterprise and
              o using and consuming the property
                      in the tilling, planting, caring for, or harvesting of the things of the soil
                         or


1
  As explored in greater detail infra, the phrase “things of the soil” was added by our Legislature
in 1949. Accordingly, when considering a particular word, the Court “must look to the meaning
of words at the time they were enacted.” People v Rogers, __ Mich App __, __; __ NW2d __
(2020) (Docket No. 346348); slip op at 6. As indicated in The Oxford English Dictionary, the
meaning of “thing” referenced here derives from various texts, ranging in date from 888 to 1858
to 1910 CE. Apart from the occasional devotee of Martin Heidegger, it is doubted that any
reasonable reader will take umbrage at the definition of “thing” offered here.

                                                 -3-
                          in the breeding, raising, or caring for livestock, poultry, or horticultural
                           products, including transfers of livestock, poultry, or horticultural
                           products for further growth

Several observations flow from analyzing the context. First and most obviously, nowhere in this
operative text is the term “agricultural production” or a similar term even found. This observation
alone cuts against a contrary reading, given how easy it would have been simply to write—
“agricultural products”—if that is what the Legislature had actually intended. (More on this later.)

        Second, diving a bit deeper, structurally there are two wholly separate prepositional
phrases, each beginning with “in,” one ending with “things of the soil” and the other ending with
“for further growth.” The two phrases are separated by “or,” and there is nothing to suggest that
this “or” should be read as anything other than disjunctive. Paris Meadows, LLC v Kentwood, 287
Mich App 136, 148; 783 NW2d 133, 140 (2010). Thus, structurally each phrase stands separate
on its own.

        Flowing from the first and second observations, it is further observed that the only use of
the term “products” in the entire exemption is with respect to the wholly separate phrase dealing
with “livestock, poultry, or horticultural products.” While one must be cautious not to put too
much weight on the canon that “the express mention of one thing implies the exclusion of other
similar things,” People v Garrison, 495 Mich 362, 372; 852 NW2d 45 (2014), it does seem worth
mentioning that this illustrates, at the very least, the Legislature’s ability to limit the exemption
with respect to certain kinds of “products” when it wants to do so, i.e., “livestock, poultry, or
horticultural products.”

        Fourth, the four activities listed in the relevant phrase—“tilling, planting, caring for, or
harvesting of”—are similarly separated by “or” rather than “and.” There is nothing in the statute
to suggest that this “or” should be read as a conjunctive, see Root v Ins Co of North America, 214
Mich App 106, 109; 542 NW2d 318 (1995), and, in fact, it appears quite clear that the exemption
is available to a business enterprise that, for example, uses equipment to till “things of the soil”
but does not also harvest those things. Thus, an entity need not engage in all four activities to be
eligible for the exemption.

        Fifth, the four activities all encompass the life cycle of a vegetative entity, but only a
vegetative entity that involves some human management or involvement. The activities do not
include, for example, the growth of a plant in the middle of a rainforest untouched by human hands.
The activities are human ones (with or without the aid of machinery, chemicals, or other human
technology), and the activities are centered on or otherwise involved in the care and management
of a vegetative entity.

         Sixth and finally, encompassed within the set of activities is certainly agricultural
production. But the object of the activities—“things of the soil”—is not itself limited to
agricultural products, and the four activities are necessarily broader than mere agriculture. One
can certainly plant and care for a vegetative entity without necessarily harvesting something from
it for sale in the future. A contrary reading would necessarily imply that any “thing[] of the soil”
that is tilled, planted, cared for, or harvested would always and everywhere have to result in an


                                                 -4-
agricultural product. In other words, the contrary reading would equate things of the soil that are
tilled, planted, cared for, or harvested with agricultural products.

         But this is question begging and, more critically, it is a false equivalency. Many vegetative
things (e.g., plants, flowers, trees) are planted or otherwise cared for, but do not themselves
produce or otherwise result in a product for sale on the market. While it is not necessary to identify
what “things of the soil” means in every conceivable context, it can be said with some confidence
that “things” is a more expansive concept than “products.” Thus, the set of all “things of the soil”
that are tilled, planted, cared for, or harvested encompasses each and every agricultural product,
but the set of all agricultural products does not encompass each and every “thing[] of the soil”
that is tilled, planted, cared for, or harvested. Simply put, the phrase “things of the soil” in this
context has a logically broader meaning than mere agricultural products.

        The Legislature could have used the phrase “agricultural products” or even “products of
the soil” as the object of the four listed activities, but it eschewed those and similar labels and
instead chose a logically broader one, “things of the soil.” Under the plain meaning and statutory
context of the use-tax exemption, TruGreen remains on solid ground.

         The Lengthy History. Next, statutory and legislative history. With respect to this history,
it should be noted at the outset that (i) the history is lengthy and (ii) not outcome determinative,
but (iii) several pertinent observations can be made. Taking a cue from the majority, I will not
recite the full history of the exemption in exhaustive detail; instead, a few key highlights will
suffice:

          In 1937, the Legislature enacted a use-tax exemption for “tangible personal property”
           used in “agricultural producing.” [1937 PA 94 § 4(g).]

          In 1949, the Legislature revised the exemption by deleting “agricultural producing” and
           replacing the term with “things of the soil.” It also added a certification provision for
           “horticultural or agricultural products.” [MCL 205.94(1)(g), as amended by 1949 PA
           273.]

          The Legislature revised the exemption again in 1970. This time it added a catch-line
           heading (“Agricultural production”) and made other changes not relevant to this
           dispute. [MCL 205.94(f), as amended by 1970 PA 15.]

          The provision remained much the same until 2004, when the Legislature left out the
           catch-line heading and deleted the certification provision, among other revisions. This
           omitted any legislative mention of “agricultural production” with respect to the
           exemption. [MCL 205.94(1)(f), as amended by 2004 PA 172.]

          In 2008 and 2012, the Legislature made further minor revisions to the exemption.
           These are the provisions relevant to the tax years in question. The operative language
           is identical in both versions:




                                                 -5-
                       (1) The following are exempt from the tax levied under this act,
               subject to subsection (2):
                                               * * *
                       (f) Property sold to a person engaged in a business enterprise and
               using and consuming the property in the tilling, planting, caring for, or
               harvesting of the things of the soil or in the breeding, raising, or caring for
               livestock, poultry, or horticultural products, including transfers of livestock,
               poultry, or horticultural products for further growth. [MCL 205.94(1)(f), as
               amended by 2012 PA 474.]

        In 2017, a package of bills amending various tax exemptions was introduced in our House
of Representatives. Two of the bills, HB 4561 and HB 4564, involved exemptions for “things of
the soil.” As introduced, the bills would have made the exemptions expressly limited to
“agricultural purposes”—i.e., the relevant language would have changed to “. . . . things of the soil
for agricultural purposes . . .” (emphasis added). Not surprisingly, the department supported the
change. The House passed the bills with the included express limitation, but the language was
eventually stripped from the bills in the Senate. The Senate passed the bills without the language,
the House concurred, and the Governor signed the bills. See 2018 PA 114. The current exemption
thus reads:

                       (1) The following are exempt from the tax levied under this act,
               subject to subsection (2):
                                               * * *
                       (f) Except as otherwise provided under subsection (3), property sold
               to a person engaged in a business enterprise that uses or consumes the
               property, directly or indirectly, for either the tilling, planting, draining,
               caring for, maintaining, or harvesting of things of the soil or the breeding,
               raising, or caring for livestock, poultry, or horticultural products, including
               the transfers of livestock, poultry, or horticultural products for further
               growth. [MCL 205.94(1)(f), as amended by 2018 PA 114.]

         What can the reasonable reader glean from this history? A few things. The original use-
tax exemption was enacted in 1937 to focus on “agricultural producing,” but then twelve years
later, any mention of “agricultural producing” was omitted and replaced with “things of the soil.”
When the Legislature uses a different word or phrase in revising a statute, absent clear indication
that it was done for purely stylistic reasons, the new word or phrase should signal a change in
meaning. See Bush v Shabahang, 484 Mich 156, 167; 772 NW2d 272 (2009).

        At the same time that the Legislature added “things of the soil,” it also added the term
“agricultural products” in the new certification provision. Yet, as this Court held in William
Mueller & Sons, Inc v Dep’t of Treasury, 189 Mich App 570, 574; 473 NW2d 783 (1991), the
certification provision did not create a requirement related to “agricultural products,” but rather
provided a means for the creation of prima facie evidence in support of an exemption claim. Thus,
the fact that the Legislature added the term “agricultural products” in 1949 is of little moment here.
Moreover, the entire certification provision was omitted from the exemption in 2004.



                                                 -6-
       At first blush, it would seem significant that the Legislature added the catch-line heading
in 1970. The Legislature has long instructed, however, that catch-line headings “shall in no way
be deemed to be a part of the section or the statute, or be used to construe the section more broadly
or narrowly than the text of the section would indicate.” MCL 8.4b. A catch-line heading is
merely for the “convenience to persons using publications of the statutes,” id., and therefore courts
and departments must ignore the heading for purposes of determining what the statute means, In
re Lovell, 226 Mich App 84, 87 n 3; 572 NW2d 44 (1997). In any event, the catch-line heading
was omitted by the Legislature in subsequent amendments. See, e.g., 2004 PA 172.

         This statutory history, while somewhat muddled, does suggest that by at least 2004, the
Legislature had settled on a broad exemption. Specifically, by 2004, (i) the Legislature had
jettisoned the original “agricultural producing” scope and replaced it with “things of the soil”; (ii)
it had added and then removed the narrower catch-line heading; and (iii) it had omitted any mention
of “agriculture” or “agricultural” in the operative part of the exemption (the only references are
later in the provision regarding land tiles). While not conclusive by itself, this history is consistent
with and supports the reading presented here.

         What to make of the recent legislative history, i.e., HB 4561 and 4564? In one respect, it
is not relevant because we are interpreting prior versions of the statute. See In re Certified
Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003). In another respect, however, it is
relevant because this legislative activity shows, at a minimum, that the Legislature knows full well
how to draft a provision that would clearly narrow the exemption to “agricultural purposes.” In
fact, the department supported such a provision, the House (originally) supported such a provision,
but the Senate did not. By the time the Senate sent the legislation back to the House for a
concurrence vote, the proposed provision had been stripped out and replaced with the existing
provision (“things of the soil”), with nary a mention of “agricultural producing,” “agricultural
products,” or “agricultural purposes.”

        The reasonable reader can speculate on why the language was removed as the bills
traversed the Legislature. Maybe, for instance, some of the legislators observed that well-
manicured lawns provide esthetic benefits to third parties, and those legislators wanted to subsidize
the provision of such benefits.2 Or, maybe, other legislators simply supported lower taxes on
businesses like TruGreen. These and other speculations are, however, just that—speculations.
What can be known for certain from the recent legislative activity is that (i) the Legislature was
asked to narrow the exemption at the same time that this dispute was working its way through the


2
  Some have argued that tax laws must further some public good. There is no logical reason that
esthetic goods—which grass, trees, and ornamental plants surely are—cannot be considered public
goods. A public good is one whose benefit inures largely to the public as opposed to a single
person or firm—technically, the good is non-excludable and non-rivalrous. The esthetic values of
well-manicured lawns, parks, and commercial and other public spaces are, by and large, non-
excludable and the enjoyment by one does not diminish the enjoyment by another. Whether the
esthetic values created by TruGreen’s services should qualify as a “public good” for tax purposes
is a policy question for the Legislature, not a judicial one for this Court or an administrative one
for the department.

                                                  -7-
courts, (ii) the Legislature considered narrowing the language, but (iii) the Legislature ultimately
rejected the narrower language. Id. (noting that the “highest quality” of legislative history is that
which includes “actions of the Legislature in considering various alternatives in language in
statutory provisions before settling on the language actually enacted”).

         After considering the text, context, and history of the use-tax exemption, where does this
leave our reasonable reader? A few takeaways seem unavoidable. The meaning of the phrase
“things of the soil” is broader than the phrase “agricultural products” or even “products of the
soil.” The context of the statute supports the plain, broader meaning of the phrase. And while not
itself conclusive, the statutory and legislative history lends support to a broader understanding of
the exemption, especially when the reader compares the phrase chosen and retained by the
Legislature (“things of the soil”) with the phrases rejected and jettisoned by it (“agricultural
producing,” “agricultural products,” “agricultural purposes”). Frankly, one has to wonder how the
Legislature could have more clearly evidenced that a broad meaning was intended. It replaced a
narrow term with a broad one; it reserved the term “products” for a logically separate category in
a grammatically separate phrase; it eschewed any mention of “agriculture” or “agricultural” in the
relevant part of the provision; and, when recently asked to modify “things of the soil” with
“agricultural purposes,” the Legislature said No.

      Given all of this, I submit that the reasonable reader is left with but one conclusion—
TruGreen qualifies for the use-tax exemption.

                                 III. THE MAJORITY OPINION

       The reasonable reader need go no further. My analysis has been set out in detail, and the
reader can compare this with the majority’s analysis and determine on their own who has the
sounder case. For those who want to press on, however, I offer a few additional observations,
none of which are necessary to my analysis.

        Thumb on the Scale. The majority starts out its opinion by placing a collective thumb on
the interpretative scale in favor of the department. In support, the majority references a quote from
Justice Cooley’s treatise on taxation that the grant of an exemption “ ‘must be beyond reasonable
doubt.’ ” Detroit v Detroit Commercial College, 322 Mich 142, 149; 33 NW2d 737 (1948),
quoting 2 Cooley, Taxation (4th ed), § 672, p 1403. But this cannot be taken at face value.
“Beyond reasonable doubt” is the burden needed for the government to take a person’s liberty
(and, in other jurisdictions, possibly even life) away; it cannot plausibly be the burden needed for
a taxpayer to obtain a tax exemption. This rhetorical flourish should remain just that.

        More substantively, while our Supreme Court has stated that courts should strictly construe
tax exemptions, it has also clarified that this does not mean that tax exemptions should be given
“a strained construction adverse to the Legislature’s intent.” Michigan United Conservation Clubs
v Lansing Twp, 423 Mich 661, 665; 378 NW2d 737 (1985). “Like any other governmental
intrusion on property or personal freedom, a tax statute should be given its fair meaning, and this
includes a fair interpretation of any exceptions it contains.” Scalia & Garner, Reading Law, p 362.

       I read our case law to mean that, when construing a tax exemption, a court should—as with
any other statute—start by analyzing the text, context, and history of the exemption using common,

                                                -8-
generally accepted interpretive tools (e.g., definitions, rules of grammar, changes in statutory
language). If the exemption is ambiguous (i.e., it irreconcilably conflicts with another provision
or is equally susceptible to more than one meaning), only then should the court turn to various
interpretive canons of construction, one of which being that when there remains doubt about a tax
exemption’s meaning, the push goes against the taxpayer. It is not at all clear to me how the
majority is using the “strictly construed” canon, but I suspect it is using it more strictly than it
should.

        Bones and Tarot Cards. Even more concerning is the majority’s contextual analysis. From
what I can tell, the majority’s analysis consists of ripping words from their context, jumbling them
together, and then drawing conclusions from the resulting “collection of words and phrases.” Take
this example: “The exemption’s first relevant sentence is a string of participles: tilling, planting,
caring for, harvesting, breeding, and raising. The words describe actions respecting ‘things of the
soil’ or ‘livestock, poultry or horticultural products.’ ” Or take another example: “The words
closely adjoining ‘planting’ and ‘caring for things of the soil’ are: ‘tilling,’ ‘harvesting of things
of the soil,’ ‘breeding,’ ‘raising,’ ‘caring for livestock, poultry, or horticultural products,’ and ‘the
transfers of livestock, poultry, or horticultural products for further growth.’ ” Compare the
majority’s lists with the actual language of the statute set out earlier.

        The majority has indeed identified a “collection of words and phrases” from the
exemption—just not the “collection of words and phrases” as they actually appear in the actual
statutory language. As shown earlier, the grammatical structure of the exemption does not suggest
that “breeding” or “raising” has anything to do with “things of the soil.” Nor does “livestock,
poultry, or horticultural products” or “for further growth” having anything to do with the prior,
separate prepositional phrase. In fact, the use of “products” in the separate phrase argues against
the majority’s reading, but by jumbling everything together into a “collection of words and
phrases,” the majority can infer meanings that are not there. This is a bones-and-tarot-cards
method of contextual analysis.

        An Imprecise Label Does Not Become More Precise by Repetition. The majority seems
also to draw support from several prior decisions of this Court. Under principles of stare decisis,
if our Supreme Court or a panel of this Court had held in a published decision that the department’s
interpretation was the correct one, then I would be bound to follow the holding, notwithstanding
my understanding of the plain meaning of the statute set out earlier. See Associated Builders and
Contractors v Lansing, 499 Mich 177, 191-192; 880 NW2d 765 (2016).

        All parties agree that there is no Supreme Court decision on-point. As for the decisions of
this Court cited by the majority, I readily concede that those decisions have referred to the
exemption as the “agricultural production exemption.” See, e.g., Detroit Edison Co v Dep’t of
Treasury, 498 Mich 28, 49 n 14; 869 NW2d 810 (2015); Sietsema Farms Feeds, LLC v Dep’t of
Treasury, 296 Mich App 232, 234; 818 NW2d 489 (2012); Mich Milk Producers Ass’n v Dep’t of
Treasury, 242 Mich App 486, 491; 618 NW2d 917 (2000). This is not surprising, though, since
the Legislature at one time referred to this exemption by a similar catch-line heading (though no
longer), and end uses of “things of the soil” certainly include (though are not limited to)
agricultural products.



                                                  -9-
         In William Mueller & Sons, 189 Mich App at 571, the taxpayer was assessed a use tax on
fertilizer equipment that it claimed was involved in agricultural production. The Court held that
the taxpayer qualified for the exemption because it was undisputed that the taxpayer was a business
enterprise and the equipment was used in the “tilling, planting, caring for, or harvesting of things
of the soil.” Id. at 573. The Court rejected the department’s position that the taxpayer had to be
“in the business of producing agricultural products” for the exemption to apply. Id. at 573-574.
Importantly for this case, there is no holding or even analysis in William Mueller & Sons related
to what “things of the soil” means.

        Likewise, the Legislature’s intended scope of the phrase “things of the soil” was not at
issue in Mich Milk Producers Ass’n, 242 Mich App 486, or Sietsema Farms, 296 Mich App 232.
In Mich Milk Producers, 242 Mich App at 487-488, 495, there was no question that “milk
production” was within the scope of the exemption, and the question was whether the use of the
equipment was for producing milk (exempt) or marketing milk (not exempt). Similarly, in
Sietsema Farms, 296 Mich App at 240, there was no question that feeding livestock and poultry
fit within the scope of the exemption, and the question was whether the property was actually being
used to feed livestock and poultry.

        While I acknowledge that prior panels have used the term “agricultural production” to refer
to the exemption, this Court is bound by the holdings of prior published decisions, not the
shorthand labels used in those decisions. And an imprecise short-hand label does not become more
precise with mere repetition.

                   IV. THE DEPARTMENT’S REMAINING ARGUMENTS

        In addition to those accepted by the majority, the department offers alternative arguments
in support of its position. Unlike those accepted by the majority, these other arguments have little
to do with the statute’s text. The department asserts, for instance, that use-tax exemptions are
intended to prevent the pyramiding of taxes on commercial products. Tax pyramiding means the
imposition of a tax on a tax, and for those who want their taxes to be transparent, such pyramiding
is generally frowned upon. Because TruGreen’s services do not directly or even indirectly result
in the sale of a taxable agricultural product to an end-user, the department maintains that there is
no risk of pyramiding a sales tax on top of a use tax, and, therefore, the purpose of the exemption
would be undermined if TruGreen received the use-tax exemption.

        Accepting that tax pyramiding is a policy vice to be avoided, the department’s reliance on
this argument has several flaws. Rather than cite to the “highest quality” of legislative history in
support of its argument, such as actual, official activity of the Legislature (e.g., votes and
amendments), In re Certified Question, 468 Mich at 115 n 5, the department points us to a journal
article and a legislative analysis. Neither is particularly reliable in determining whether MCL
205.94(1)(f) was intended, in fact, to eliminate any risk of tax pyramiding with respect to “things
of the soil.”

       Furthermore, although the department couches this as an argument from historical
development, this is really an argument from policy implication. The department has identified a
cogent tax policy—use-tax exemptions are intended to avoid tax pyramiding—and because
TruGreen’s commercial activities purportedly do not run the risk of tax pyramiding, then the

                                               -10-
rationale for the tax policy does not support an exemption for TruGreen. But, as this Court
recognized in D’Agostini, 322 Mich App at 560, “It is not our place to divine why the Legislature”
enacted a tax statute to favor or disfavor a particular taxpayer or taxable activity. “Rather, it is our
place only to determine whether the Legislature did or did not do so . . . .” Id. Similarly, our
Supreme Court made clear in Pinkney, 501 Mich at 285-288, that if the plain meaning of the statute
is clear but a court believes that the Legislature made a mistake that “frustrates [the] purpose” of
the statute, then the court must apply the statute as written and leave it to the Legislature to
determine whether a change is needed.

        In fact, the very concept of tax pyramiding is suspect with respect to agricultural products.
To illustrate, it is important to recognize first that many agricultural products are ultimately sold
to end users as food or food ingredients for human consumption. In Michigan, most food for
human consumption is exempt from sales tax, MCL 205.54g(1)(a), so there is no risk of tax
pyramiding with respect to these food products, at least as it relates to the imposition of a sales tax
on an end-product on top of a use tax on the inputs of production. And yet, even though there is
no risk of tax pyramiding on sweet corn, for example, a Michigan farmer would likely be eligible
for a use-tax exemption when harvesting sweet corn for sale at the local farmers’ market. This is
not the place nor the record for an extensive examination of tax pyramiding with respect to all
agricultural products, but needless to say, the department’s policy-based argument—(i)
TruGreen’s services are not subject to sales tax, (ii) tax pyramiding is not a risk, and therefore (iii)
the use-tax exemption does not apply—has little persuasive force here.

        Finally, the department asks this Court to defer to Rule 205.51, the department’s
administrative rule implementing the use-tax exemption. Unlike the statute itself, the rule
specifically prohibits a taxpayer from claiming a use-tax exemption where the property is for “use
on homes or other noncommercial gardens, lawns, parks, boulevards, and golf courses or for use
by landscape gardeners.” The department promulgated the rule under the administrative
procedures act of 1969, MCL 24.201 et seq., in accordance with authority delegated to it by the
Legislature, MCL 205.3(b), 205.59(2), and 205.100(2). Yet, because the statute is clear that
“things of the soil” is broader than mere agricultural production, the department cannot impose a
requirement that the Legislature did not see fit to add itself. “An administrative rule cannot exceed
the statutory authority granted by the Legislature.” William Mueller & Sons, 189 Mich App at 574.

                                         V. CONCLUSION

         Tax laws have consequences. Some consequences might be thought of as “intended”—
e.g., raising revenue, avoiding pyramiding, cultivating a favored industry—and some might be
thought of as “unintended”—e.g., a “tax loophole” if favoring the taxpayer, a “jobs killer” if
disfavoring the taxpayer. The reasonable reader might surmise that TruGreen was not whom the
Legislature considered when it enacted and subsequently amended (several times) the use-tax
exemption for “things of the soil.”

        But this surmising is outside of the Court’s proper role and institutional competence. See
People v Al-Saiegh, 244 Mich App 391, 399; 625 NW2d 419 (2001). Our role, rather, is to
interpret and apply the statute as-written, and when, as here, the text has a plain meaning, supported
by context and history, then it is that plain meaning that we should apply. Once we have laid the
particular consequence bare, it is up to the Legislature to determine whether it intends the

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consequence to endure or not. With its ruling today, the majority has stepped outside of our proper
role and competency. And finally, speaking of consequences, it will not be lost on the reasonable
reader that, although no doubt unintended by the majority, the unavoidable consequence of today’s
ruling is that the department has gained in the Judiciary what could not be gained in the Legislature.

       For all of these reasons, I cannot join the majority and thus respectfully dissent.

                                           POSTSCRIPT

       There is a certain futility when a dissent responds to a separate concurring opinion. Neither
opinion garnered a majority vote, so it is just one failed opinion responding to another failed
opinion. Frankly, had the concurring opinion concluded with its Part III, this postscript would not
have been written.

        After all, does it really need to be observed that there is a certain disconnect in suggesting,
on the one hand, that a phrase is “most certainly obscure,” but then asserting, on the other hand,
that the phrase is a well-established term of art based on decades of case law—case law without a
single holding to that effect? Does it really need to be pointed out that in the use of context, the
concurring opinion repeats (and compounds) the majority’s error of abusing context by picking a
phrase in one part of the sentence (“horticultural products”) and applying it to a grammatically
separate part? Does it really need to be said that, with respect to the department’s interpretation, I
have given it the same respectful consideration as did its own referee at the outset of this tax
dispute? These hardly seem points worth making in response to the concurring opinion.

         But then we get to Part IV and the so-called “fetishization of dictionaries.” Several
observations are in order. First, that is a rather odd accusation, but let us leave the word choice
alone and get to the substance. Second, for the life of me I cannot find anything in the dissent to
suggest that the use of The Oxford English Dictionary absolves this Court from “reasoned good-
faith discussion, analysis of caselaw and context, and stare decisis.” Maybe I shouldn’t have
summarized my dissenting analysis in the introduction? Maybe I should have moved my
discussion of case law and stare decisis closer to the beginning? I thought these were merely
stylistic choices.

        Third and more substantively, this is not the place for a general defense of the use of
dictionaries to aid with the interpretation of statutes and contracts. There are already two long,
detailed opinions and a separate concurring opinion, so whatever follows after the proverbial
beating of the dead horse, we’re there. So, my concluding observations. A dictionary is a tool for
interpretation, nothing more, nothing less. Just as a hammer is a tool that can be used expertly,
poorly, or even maliciously (just ask Rusty Sabich’s wife in Presumed Innocent), the same can be
said about a dictionary. Scalia & Garner, Reading Law, pp 415-424. And, just as an expert
carpenter may use a hammer and other tools to construct a new kitchen, the expert judge may use
a dictionary and other tools to interpret a statue or contract. Given that the concurring judge has
done precisely this in literally dozens of opinions as recently as October 2019 for such obscure
terms as “should,” Jendrusina v Mishra, 316 Mich App 621, 626 & n 1; 892 NW2d 423 (2016),
“continuing,” People v Carll, 322 Mich App 690, 704-705; 915 NW2d 387 (2018), and “health
care,” People v Anderson, __ Mich App __; __ NW2d __ (2019) (Docket Nos. 343272-343281),
slip op at 7 & n 6, I presume that the concurring judge understands this proper usage, but he just

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wants to make a rhetorical point. Fair enough, but was the concurring judge eschewing his
“constitutional role” in those and scores of other cases when he consulted a dictionary?

        We expect citizens to abide by our government’s laws, and this is right. We use the
government’s police powers to enforce those laws, and this is also right. Is it going too far to
suggest that a citizen should be able to use a good dictionary from the shelf as one tool in the
interpretive toolbox to understand what our government’s laws mean? It seems rather
undemocratic to argue the contrary.




                                                           /s/ Brock A. Swartzle




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