Even if someone were able to devote the time needed to learn all the administrative rules in Michigan, it still might be impossible for that person to know which behavior is criminal and what the penalty for such behavior is. This is because the publicly available records of Michigan’s rules are often outdated and difficult to understand, especially for the nonexpert. The section below provides a few examples.
Michigan administrative rules say that commercial sellers of honey must clearly label their product as either “white,” “amber” or “dark,” and each package must contain the honey’s net weight. These rules indicate they were written in 1979 and refer to Public Act 91 of 1915 and Michigan Compiled Laws section 287.181 as the source of their authority.[12] Unfortunately, based on readily available public documents, it is impossible to tell if these rules still apply to honey producers and what the penalty might be for violating them.
The first problem is that the source of their authority appears to be incorrect. Public Act 91 of 1915, titled “Marketing Conditions,” empowers a state department to write rules about grading farm products and specifies that a violation of these rules is a misdemeanor. However, the law applies to “farm product,” defined as “fresh fruit and vegetables,” and does not mention honey anywhere.[13] Further complicating matters, PA 91 of 1915 created sections 285.31-39 of the compiled laws, not the one cited in the rules. The statutes cited in the rules were created by PA 91 of 1917, titled “Commercial Feed,” and these were repealed in 1960.[14]
It is therefore not certain under what authority a state department may regulate the sale of honey and what the penalty might be for improperly selling it. Adding to the confusion is that other laws seem to apply to honey sellers. For instance, Michigan’s Food Law — Public Act 92 of 2000 — requires producers and sellers of honey who sell less than $15,001 per year to use the same labeling required for “cottage food,” i.e., food produced in someone’s home kitchen and made available for sale.[15] These make no reference to requiring the honey to be labeled “white,” “amber” or “dark.” Anyone who sells more than $15,001 worth of honey presumably needs to obtain a “food establishment” license from the state, which has other labeling requirements.[16] All told, based on the easily obtainable information from the state, it is very difficult to determine the rules for producing and selling honey in Michigan and what the penalty might be for their violation.[*]
Michigan’s rules about bringing in a dog from another state require that “any dog imported into Michigan” have a certificate from a veterinarian from where the dog originated that testifies that it does not have rabies or other communicable diseases. This certificate must then be sent immediately to the state veterinarian of Michigan. In addition, dogs that originate within a 50-mile radius of where a case of rabies was discovered in the previous six months must have been vaccinated within that period.[17]
The rules cite section 45 of Public Act 466 of 1988 as the source of their authority. That is the “Animal Industry Act,” and its stated goal, in part, is “to prevent the importation of certain nonindigenous animals under certain circumstances.”[18] Anyone who violates a rule promulgated under it is guilty of a misdemeanor, punishable with a fine of $300 or imprisonment of not less than 30 days.[19]
The problem is that the act doesn’t seem to have anything to do with dogs — in fact, the only time the word “dogs” appear in the act is where it specifically states that dogs are not included in the definition of “livestock,” to which the vast majority of the act does apply.[20] It does not seem likely that dogs are “nonindigenous animals,” whose importation is meant to be prevented. Finally, the rules were written in 1979, nine years before the law that supposedly authorizes them was passed.[21]
Citing the Animal Industry Act is additionally odd, because there’s another law on the books that appears to be a more sensible source for rules about importing dogs: the Dog Law of 1919.[22] But this law does not appear to authorize any administrative body to promulgate rules about importing dogs, and it mainly pertains to dog licensing requirements, dog kennels and dealing with dogs that cause property damage or endanger humans.[†]
After investigating all of these different rules and laws, probably more than what the typical Michigan resident is willing to do, it is still not clear exactly what the laws are for importing a dog into Michigan.[‡] Since there are criminal sanctions associated with some of these rules, it seems important that residents can reasonably understand what is required of them to avoid prosecution, fines and a criminal record.
The last example concerns rules about horse racing and breeding racehorses. The Michigan Horse Racing Law was passed in 1995, and it empowers a racing commissioner, within the Michigan Department of Agriculture and Rural Development, to promulgate rules to execute this law.[23] Violating these rules is not a crime, but the racing commissioner may issue sanctions of up to $25,000 for violations, and failing to appear before the commissioner, if summoned, is a misdemeanor.[24] The law also empowers the director of MDARD to write rules specifically about the use of the Michigan Agriculture and Equine Industry Development Fund and payments from it to racehorse breeders.[25]
There are five different sets of rules for different breeds of racehorses: thoroughbred, quarter horse, Appaloosa, Arabian and paint horse.[26] The titles of these rules are nearly identical, only differing based on the breed to which they apply, and they contain large sections of identical language. Yet, the cited legislative authority and state department responsible for the administration of these similar rules is varied and confusing.[§]
Two sets of rules say they are administered by the Michigan Department of Agriculture’s Fairs, Exhibitions and Racing Division; two cite the MDA’s Finance and Technology Division; and the other refers to MDARD’s Financial Programs Regulation Section. It is not clear why these very similar rules would be administered by different divisions of the same department. Even more confusing, none of these divisions appear to exist any longer, raising the question of which office of the state actually administers these rules.[27]
These five sets of rules also differ in which state law they cite that authorizes their promulgation. They all cite the director of MDARD as being responsible for their rules, but two sets refer to Public Act 327 of 1980 as their source of authority and two refer to Public Act 279 of 1995.[28] One refers to Public Act 327 of 1995, which is probably an error.[29]
PA 279 of 1995 is probably the correct citation, as it empowers the racing commissioner and MDARD director to promulgate rules.[30] But the two rule sets that cite that public act refer to different sections of the statute: one points to the section empowering the racing commissioner and one to the section empowering the director of MDARD.[31] From all of this, it is nearly impossible to determine which cited authority is the correct one.
There is also a lot of duplication in these rules and the relevant law. For instance, each set of rules for the different breeds of racehorses regulate how “breeders’ awards” should be handled. These are payments to breeders of the horses that win or place in certain races. These rules, which have nearly identical language, stipulate the size of these awards and that they are not inheritable and only payable if the horse was registered with the state prior to the race. But there’s an entirely different rule set, titled “Payment of Breeder’s Awards,” which stipulates exactly the same rules, and it appears to apply to all the different breeds of racehorses.[32] Additionally, some of these same stipulations also appear in statute.[33]
The need for this duplication is not evident, and it is not clear which rules or statutes apply to which horse breeders or races. The cause of this duplication and inconsistency may simply be that neither the Legislature nor the administrative agencies they empower dedicate resources to identifying such rules and correcting them. This may especially be true for rules and laws that do not affect large groups of people. This is the case with horse racing, as the state now has only one operational horse racing track.[34]
In addition, hundreds of new bills are passed each year and perhaps just as many new rules are written or old ones modified. Based on this example, it may be that the Legislature and administrative agencies simply added new regulations to the books without considering how they might duplicate or even conflict with existing laws and rules. While lawmakers, legal experts and the courts might know which rules and laws are current and actively enforced and which can be safely ignored, the average citizen probably does not.
[*] This is especially surprising because Michigan, according to the Department of Agriculture and Rural Development, is the eighth largest producer of honey in the country. “Michigan Agriculture Facts & Figures” (Michigan Department of Agriculture & Rural Development, 2019), https://perma.cc/9GNR-FUEV.
[†] MCL § 287.261 et seq. The Dog Law of 1919 may have once had a section about rabies vaccination and importing dogs: a compiler’s note on the repealed section 287.266a says that it “pertained to proof of vaccination for rabies.” “Dog Law of 1919,” Michigan Public Act 339 of 1919, https://perma.cc/VT64-67C2.
[‡] The MDARD website does not clarify the matter. It says dogs must have a certificate from a government-approved veterinarian from their place of origin, but makes no mention of the need to forward this immediately to the state veterinarian. It states that all imported dogs older than 12 weeks need a rabies vaccine. In addition, the webpage says, “No entry permit is required for interstate importation into Michigan.” What this “entry permit” refers to is not explained. “Bringing Animals into Michigan: Dogs” (Michigan Department of Agriculture & Rural Development, 2019), https://perma.cc/ZTU3-K6XY.
[§] This presents a challenge to anyone attempting to locate these rules. The state website that provides access to Michigan’s administrative rules only allows users to search for them by state department and division or bureau. “MI Administrative Code” (Michigan Department of Licensing and Regulatory Affairs, 2019), https://perma.cc/X4LS-LEKA.