PEOPLE v ARNOLD
Docket No. 160046
Michigan Supreme Court
July 28, 2021
Argued March 3, 2021 (Calendar No. 1). Decided July 28, 2021.
Syllabus
Chief Justice: Bridget M. McCormack
Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kathryn L. Loomis
PEOPLE v ARNOLD
Docket No. 160046. Argued March 3, 2021 (Calendar No. 1). Decided July 28, 2021.
Lonnie J. Arnold was convicted following a jury trial of aggravated indecent exposure,
In an opinion by Justice VIVIANO, joined by Justices ZAHRA, BERNSTEIN, and WELCH, the Supreme Court held:
Judgment reversed and case remanded for resentencing.
Justice CLEMENT, joined by Chief Justice MCCORMACK and Justice CAVANAGH, concurring in the judgment, agreed that the trial court‘s sentence of 25 to 70 years was invalid because Arnold had to be sentenced either to a term of years under
OPINION
FILED July 28, 2021
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v LONNIE JAMES ARNOLD, Defendant-Appellant.
No. 160046
BEFORE THE ENTIRE BENCH
A person charged with a crime should not have to guess at the penalty he or she faces upon conviction.1 Yet that is the predicament a defendant faces after being convicted of indecent exposure as a sexually delinquent person under
stage of this case, we held that a person found guilty under § 335a(2) of the Penal Code could be sentenced either to a nonmodifiable term of “1 day to life” or to the other applicable statutory penalties established by that statute.2 However, according to the Court of Appeals’ interpretation on remand, such a person would also have to examine
When this case was last before us, we declined to resolve whether § 335a or the guidelines applied in these circumstances. Today, we must confront the clear conflict between the “1 day to life” sentence in § 335a(2)(c) of the Penal Code and the sentence in §§ 16q and 62 of the guidelines. Contrary to the Court of Appeals, we hold that the guidelines do not create an alternative sentence that can be imposed instead of the “1 day to life” sentence in § 335a(2)(c). This means that individuals convicted of an indecent-exposure offense under § 335a as sexually delinquent persons must be sentenced pursuant to the penalties prescribed in that statute as described in our earlier opinion. Because defendant did not receive such a sentence, he is entitled to resentencing.
I. FACTS AND PROCEDURAL HISTORY
Our prior opinion in this case laid out the relevant facts:
Defendant Lonnie Arnold masturbated in front of an employee at the Monroe Public Library in January 2013. He was charged with aggravated indecent exposure,
MCL 750.335a(2)(b) , indecent exposure by a sexually delinquent person,MCL 750.335a(2)(c) , and also with being a fourth-offense habitual offender,MCL 769.12 . He was convicted after a jury trial on both substantive indecent-exposure counts.3
As discussed more below, § 335a(2) provides a penalty of up to one year of imprisonment and a fine for indecent exposure, two years of imprisonment and a fine for aggravated indecent exposure, and an alternative of “1 day to life” imprisonment if the defendant commits either indecent exposure or aggravated indecent exposure and is deemed to have been a sexually delinquent person at the time of the offense.4 At sentencing, defense counsel argued that § 335a(2)(c) required a sentence of “1 day to life.” The trial court disagreed, observing that it was prohibited from imposing a so-called “life tail,” under which the maximum penalty is life in prison and the minimum penalty is a term of years.5 The trial court sentenced defendant to 25 to 70 years’ imprisonment on the controlling count of indecent exposure as a sexually delinquent person.6 The minimum sentence of 25 years was calculated to fit within the sentencing guidelines range.7
Because our interpretation of the statute did not account for the sentencing guidelines, we remanded the case to the Court of Appeals to “resolve what effect the adoption of the legislative sentencing guidelines had on the operation of the sexual-delinquency scheme as we have construed it . . . .”12 On remand, the Court of Appeals phrased the issue as “reconcil[ing] the optional, alternative sentence of ‘1 day to life’ provided in
In attempting to resolve this tension between the sentencing frameworks, the Court of Appeals observed the interpretive principle that statutes involving the same subject matter should be read in pari materia, i.e., construed together to avoid conflict.14 After determining that the guidelines and § 335a both concerned the same subject matter, the Court of Appeals concluded that “the sentencing guidelines provide yet another sentencing alternative for individuals convicted of indecent exposure as a sexual delinquent.”15 Accordingly, a trial court could sentence a defendant in these circumstances to “(a) one
day to life for indecent exposure by a sexually delinquent person,
Defendant then sought leave to appeal in this Court. We granted the application and ordered argument on, among other things, whether the offense of “indecent exposure by a sexually delinquent person . . . is subject to the sentencing guidelines . . . because it is set forth in
II. STANDARD OF REVIEW
We review issues of statutory interpretation de novo.19
III. ANALYSIS
The issue presented is whether the guidelines expand on the sentences available for an individual convicted under § 335a of indecent exposure or aggravated indecent exposure as a sexually delinquent person. More specifically, we must decide whether, as an
alternative to the penalty in § 335a(2)(c), such a defendant can be sentenced under the guidelines, i.e., whether the guidelines constitute a substantive penalty provision that allows for a sentence other than an unmodifiable sentence of one day to life. We find that § 335a(2)(c) and the guidelines offer conflicting sentences but that the latter do not create an alternative penalty provision. Thus, the only penalties that can be imposed are those under § 335a(2), as interpreted by our decision in Arnold I.
A. STATUTORY BACKGROUND
Section 335a defines the offenses of indecent exposure and aggravated indecent exposure, lays down the penalties for these offenses, and establishes an alternative sentence that is available when a defendant commits one of these offenses while being a sexually delinquent person. The statute states, in relevant part:
(1) A person shall not knowingly make any open or indecent exposure of his or her person or of the person of another.
(2) A person who violates subsection (1) is guilty of a crime, as follows:
(a) Except as provided in subdivision (b) or (c), the person is guilty of a misdemeanor punishable by imprisonment for not more than 1 year, or a fine of not more than $1,000.00, or both.
(b) If the person was fondling his or her genitals, pubic area, buttocks, or, if the person is female, breasts, while violating subsection (1), the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both.
(c) If the person was at the time of the violation a sexually delinquent person, the violation is punishable by imprisonment for an indeterminate term, the minimum of which is 1 day and the maximum of which is life.20
The guidelines, however, contemplate a different range of sentences for an individual found guilty under § 335a(2)(c). In § 16q, the guidelines specifically refer to § 335a(2)(c): “This chapter [that is, Chapter 777 of the Code of Criminal Procedure, which sets out the sentencing guidelines] applies to the following felonies enumerated in chapter 750 of the Michigan Compiled Laws: . . . [MCL] 750.335a(2)(c) . . . .”22 The table set forth in § 16q, shown below in relevant part, indicates that § 335a(2)(c) is a Class A felony with a statutory maximum of life imprisonment:
| M.C.L. | Category | Class | Description | Stat Max |
|---|---|---|---|---|
| 750.332 | Property | H | Entering horse in race under false name | 4 |
| 750.335a(2)(b) | Person | G | Aggravated indecent exposure | 2 |
| 750.335a(2)(c) | Person | A | Indecent exposure by sexually delinquent person | Life |
The guidelines “grid” for Class A felonies, set out in § 62 of the guidelines, provides for various minimum sentence ranges, from 21 months in prison at the low end to life imprisonment at the high end.23 In other words, the grid lays out a range of possible minimum sentences for term-of-years sentences—in contrast to the “1 day to life” sentence in § 335a(2)(c)—depending on the scoring of the guidelines. For example, an offense variable score of 40 to 59 points, together with a prior record variable score of 25 to 49 points, results in a recommended minimum sentence range of 108 to 180 months in prison.24
The problem presented by §§ 16q and 62 is that they appear to allow for sentences that clash with the “1 day to life” sentence in § 335a(2)(c). Under our interpretation of the “1 day to life” scheme in Arnold I, the language in § 335a(2)(c) requires an exact sentence of “1 day to life,” unless one of the other applicable sentences in § 335a(2)(a) or (b) is imposed. But if §§ 16q and 62 establish sentences that vary from this scheme, these statutes cannot be read as simply doing what the other sentencing guidelines do: guiding the
imposition of a penalty established in the Penal Code or elsewhere.25 That is, §§ 16q and 62 would
The “alternative” penalty the Court of Appeals discerned in the guidelines is thus independent of any other statutory penalty provision. The only way this penalty can apply, therefore, is if this provision—unlike any other provision in the sentencing guidelines that we are aware of—serves as the relevant penalty provision for conduct criminalized in § 335a of the Penal Code, and if this is so, it is true despite the fact that § 335a itself appears to specify all the possible penalties.27 Stated differently, do the guidelines create a substantive penalty
B. INTERPRETATION OF THE GUIDELINES
To answer this question, we must uncover the ordinary meaning of the guidelines.29 Critically, the guidelines do not purport to trump the substantive penalties prescribed in the statutes establishing the criminal offense. In fact, the Legislature has subordinated the guidelines to the applicable penalty provisions in the substantive criminal statutes. Under
Nothing in the text of § 16 or § 62 suggests otherwise. Indeed, these two sections contain scarcely any “text” at all in the usual sense. One is primarily a table and the other primarily a grid. Both statutes contain mostly numbers or citations and short phrases that refer to other statutes. Neither statute expressly states that individuals found guilty under § 335a(2)(c) can be punished by any term of years, as seems to be envisioned by the grid, or by any other alternative sentence.
The only possible textual basis for the term-of-years sentence is a reference in § 16q to “Life” as the “Stat Max” (statutory maximum sentence) for convictions under § 335a(2)(c). Nothing in the text indicates that the term “Life” in § 16q can encompass any term of years, such as the 70-year maximum sentence the trial court dispensed in this case. One would have to interpret “Life” to mean “life or any term of years.” This would cut against not only the meaning of “life” imprisonment, but also our caselaw treating life sentences and term-of-years sentences as mutually exclusive.31 At best, the reader would need to work through a series of inferences in order to conclude that “Life” could also mean “any term of years“: (1) the guidelines grid provides for a minimum term-of-years sentence for convictions under
consequently, the grid establishing such a minimum would be superfluous.32 This would be an extremely circuitous path for establishing a substantial maximum penalty.33
While “life” might be the only possible maximum sentence for a violation of § 335a(2)(c), it is hard to see how § 16q itself imposes this sentence. Such an interpretation would require a determination that the phrase “Stat Max” is a self-reference to § 16q. That is, if § 16q creates and imposes the life maximum sentence, then the “statute” implicitly referred to in the “Stat Max” column would be that very section, i.e., § 16q. But this conclusion is belied by the fact that all the other offenses in the § 16q sentencing grid and all of the offenses in the other relevant sentencing grids in the guidelines indicate that the “statute” referred to in the “Stat Max” column is the relevant Penal Code statute listed in the grid. The most natural reading of “Stat Max” is that it refers to the maximum sentence
contained in the statute listed in the first column; in this case, that statute is § 335a(2)(c). Under this reading, § 16q confirms that § 335a(2)(c) establishes the substantive penalty.
Another strong indication that the guidelines did not smuggle a substantive penalty provision into § 16q is the very title of the act that the guidelines fall within: the “Code of Criminal Procedure.”34 The term “procedure” is usually used in contradistinction to “substantive“; substantive criminal laws are generally thought to encompass the definitions of the crimes and the penalties for the crimes. A
called ‘criminal’ unless a punishment is prescribed therefor.”37 This is why the normal drafting convention for criminal statutes is to place the penalty as near as possible to the prohibited conduct.38 Procedure, by contrast, is “the law governing that series of procedures through which the substantive criminal law is enforced.”39
We have taken a similar view, quoting the Penal Code‘s title for the proposition that “the purpose of the Penal Code is ‘to define crimes and prescribe the penalties therefor . . . .‘”40 By contrast, as we have recognized, “[t]he purpose of the Code of Criminal Procedure is to ‘codify the laws relating to criminal procedure . . . .‘”41 The contents of the Code of Criminal Procedure bear out this observation. The Code of Criminal Procedure spans 20 chapters in the Michigan Compiled Laws (MCLs), none of
which involves the direct creation of crimes or the imposition of core penalties.42 Indeed, were we to hold that §§ 16q and 62 establish a substantive penalty,
The conclusion that §§ 16q and 62 are not substantive penalty provisions finds support in caselaw from across the country. As the United States Supreme Court has observed, the nonstatutory federal guidelines “do not regulate the public by prohibiting any conduct or by ‘establishing minimum and maximum penalties for [any] crime.’ . . . Rather, the Guidelines advise sentencing courts how to exercise their discretion within the bounds established by Congress.”43 Other courts have agreed. In addressing statutory sentencing guidelines, the Washington Supreme Court stated, “Sentencing guidelines do not inform the public of the penalties attached to criminal conduct nor do they vary the statutory
maximum and minimum penalties assigned to illegal conduct by the legislature.”44 One of the Washington court’s rationales applies here as well: the guidelines only “structure discretionary decisions affecting sentences; they do not specify that a particular sentence must be imposed.”45 In a similar vein, neither
For these reasons,
C. APPLICATION
Because the sentencing guidelines do not apply, our decision in Arnold I controls the sentencing of individuals convicted of an indecent-exposure offense under
Our holding today also renders it unnecessary to resolve the constitutional question raised in our grant order. See Arnold III, 505 Mich at 1001. In addressing the constitutional issue, the concurrence implies that our order granting leave in this case did not request briefing on the interpretation of the statutes, which forms the basis for our holding. See post at 2, 20. But that is simply incorrect. The Court of Appeals below directly addressed the interpretation of the relevant statutes, and our grant order asked whether the offense of indecent exposure by a sexually delinquent person under
In any event, by avoiding this question, we adhere to our well-established principle of deciding cases on nonconstitutional grounds when possible. See J&J Constr Co v Bricklayers & Allied Craftsmen, Local 1, 468 Mich 722, 734; 664 NW2d 728 (2003) (“This Court will not unnecessarily decide constitutional
IV. CONCLUSION
This is not a typical criminal case. It has taken defendant two trips to this Court to get a clear answer on what sentence he faces for his conviction under
David F. Viviano
Brian K. Zahra
Richard H. Bernstein
Elizabeth M. Welch
CLEMENT, J. (concurring in the judgment).
I agree with the result reached by the majority—defendant must either be given
To reach this result, we must overcome a formidable obstacle: the sentencing guidelines, 1998 PA 317—a formal expression of legislative intent—amended the Code of Criminal Procedure,
The first problem we confronted in this case was the somewhat-confusing “1 day to life” sentence the Legislature provided for when it adopted the “sexually delinquent person” scheme in 1952. As we described when this case was last before us, this option to impose a “1 day to life” sentence on convicted individuals had an established meaning when it was adopted. There was a collection of predicate offenses, each of which had certain term-of-years punishments expressed in the Michigan Penal Code,
The problem arises when these sentencing options in
In general, though there are several hundred exceptions, an offense punishable by life imprisonment is in class A, a 20-year offense is in class B, a 15-year offense is in class C and a 10-year offense is in class D. Similarly, a five-year offense is in class E, a four-year offense is in class F, and two-year offenses are in class G.2 There is also a class H. [Hammond, The Top 50 Felonies: Useful Statistics Regarding the Most Frequently Charged Offenses, 81 Mich B J 20, 22 (December 2002).]
There is also a series of “offense variables” (OVs) and “prior record variables” (PRVs), which direct the sentencing judge to assess points to the defendant based on various aspects of the offense and the defendant’s criminal history. Once those OV and PRV scores are determined, there are a series of grids for each of the A3 through H classification levels. The judge uses the OV and PRV scores to determine where the defendant falls on the appropriate grid, and the cell at the intersection of the defendant’s OV and PRV levels recommends a range of minimum sentences. That range of sentences is supplemented by the defendant’s status as a habitual offender, if applicable.
When the sentencing guidelines are applied to defendant, they call for a very different sentence than the choice of either
The most likely cause of these radically disparate outcomes is that in the 46 years between the “1 day to life” system being enacted in 1952 and the Legislature’s adoption of the guidelines in 1998, its institutional memory simply failed. It saw the language “1 day to life” in
The issue then becomes how we are to react to this failure of the Legislature’s institutional memory. The lynchpin of the majority’s analysis, it appears to me, is that the “ordinary meaning” of
The only possible textual basis for the term-of-years sentence [defendant received] is a reference in § 16q to “Life” as the “Stat Max” . . . for convictions under § 335a(2)(c). Nothing in the text indicates that the term “Life” in § 16q can encompass any term of years . . . . One would have to interpret “Life” to mean “life or any term of years.” . . . At
best, the reader would need to work through a series of inferences in order to conclude that “Life” could also mean “any term of years“: (1) the guidelines grid provides for a minimum term-of-years sentence for convictions under § 335a(2)(c); (2) but life tails (i.e., sentences of a minimum number of years with a maximum of life) are prohibited by MCL 769.9(2); (3) therefore, a defendant may not be sentenced to a minimum term of years with a maximum of life; (4) it would then follow that the maximum must be “life or any term of years.”
The problem, in my view, is that this “series of inferences” is commonplace throughout the sentencing guidelines. As a general matter, Class A felonies are the “life or any term of years” offenses.5 When reviewing the guidelines’ list of included felonies, it does not call for much of an interpretive leap “to interpret ‘Life’ to mean ‘life or any term of years,’ ” seeing as this is what “Life” in the “Stat Max” column does mean throughout the guidelines’ list of included felonies. The majority suggests that “Life” in the “Stat Max” column has a range of meanings, but this is not so—absent these “1 day to life” sexual delinquency offenses and one objective error,6 every offense with a “Stat Max” of “Life” is a “life or any term of years” offense. And the intention to treat listed Class A felonies with a “Stat Max” of “Life” as “life or any term of years” crimes is clearly communicated by the recommended minimum sentences on the Class A grid; as noted, the recommended sentences there cannot be reconciled with a 2- or even a 15-year maximum sentence.7 “Life” as the “Stat Max” is used throughout the guidelines as shorthand for offenses whose maximum sentence is “life or any term of years.”
If we were to accept that the Legislature meant what it said when it adopted
Given that I am concurring in the result reached by the Court, obviously my answer to this question is “no.” We are required to negate this expression of legislative intent because Michigan constitutional law prevents the adoption of a provision of the Code of Criminal Procedure (i.e.,
To understand how we have arrived at this rule, we must understand how the Reenact-Publish Clause made it into our Constitution. By its terms, it prohibits statutory enactments in the federal style formerly used in Michigan. Here is an example:
Section 1. Be it enacted by the Senate and House of Representatives of the State of Michigan, That section one of an act entitled “an act to incorporate the Detroit and Howell Plank Road Company,” approved April 3, 1848, be and the same is hereby amended, by inserting after the word “from,” in the eleventh line of said section, the following words:
“the west line of Woodward Avenue in;” and also by inserting after the word “Oakland,” in the seventeenth line of said section, the words, ”Provided, No toll gate shall be placed within the limits of said city.” [1850 PA 321.]
“Such an amendment requires an examination and comparison of the prior act to understand what change was effected.” 1A Singer & Singer, Sutherland Statutory Construction (7th ed), § 22:16, p 304. Thus, in this example, the reader could not tell what the state of the law was without consulting the 1848 Public Acts. “Such an enactment is properly termed a ‘blind’ amendment.” Id.10 The Reenact-Publish Clause requires, instead of a description of what words are being stricken or inserted, that the finished product be published and presented to the public. “Most courts apply the constitutional provision only to those acts which are amendatory in form,” id. § 22:18, p 308, meaning that in most states, the reenact-publish requirement goes no further than prohibiting the form of “blind” amendments.
Michigan and a few other states have interpreted their reenact-publish clauses to go one step beyond banning the form of blind amendments to require that a statute that amends some existing law in substance must be enacted as a redline edit to that law. See id. (“[I]n a minority of jurisdictions, acts not purporting to amend have been held amendatory because in substance they altered or modified a prior act and were not complete within themselves.“).11 “The purpose of art 4, § 25 is to give notice and certainty. Obviously, if reference to the title only is not enough for notice and certainty, giving no reference at all is a fortiori not enough.” Advisory Opinion re 1972 PA 294, 389 Mich at 518 (opinion by WILLIAMS, J.). If it is a problem for the Legislature to acknowledge some earlier law and only describe the changes being made to that law—without displaying the finished work product—it is even worse for the Legislature to deliberately ignore the existence of prior law and pass some new enactment that contradicts it.
Even though an act professes to be an independent act and does not purport to amend any prior act, still if, in fact, it makes changes in an existing act by adding new provisions and mingling the new with the old on the same subject so as to make of the old and the new a connected piece of legislation covering the same subject, the latter act must be considered as an amendment of the former and as within the constitutional prohibition. [People v Stimer, 248 Mich 272, 293; 226 NW 899 (1929) (POTTER, J., dissenting) (quotation marks and citation omitted).]12
Of course, in some sense any new law has an effect on all existing law. If republication of redline-edited statutory text were required when any arguable change to existing law were being effected by a new law, vast swathes of the law would need to be republished every time any new law was adopted. We recognized this long ago:
If, whenever a new statute is passed, it is necessary that all prior statutes, modified by it by implication should be re-enacted and published at length as modified, then a large portion of the whole code of laws of the State would require to be republished at every session, and parts of it several times over, until, from mere immensity of material, it would be impossible to tell what the law was. [People ex rel Drake v Mahaney, 13 Mich 481, 496-497 (1865).]
As a result, we have articulated an important exception to the requirement that changes to existing law come in the form of a redline edit: such edits are not required when a change comes in the form of a new law that is “complete in itself.”
This constitutional provision must receive a reasonable construction, with a view to give it effect. The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation. But an act complete in itself is not within the mischief designed to be remedied by this provision, and cannot be held to be prohibited by it without violating its plain intent. [Id. at 497.]
This then raises the question: what is “an act complete in itself“? Generally speaking, “[a] statute is complete within itself when it is not necessary to refer to any other statute to understand its scope and meaning.” Sutherland, § 22:21, p 316.
The character of an act, whether amendatory or complete in itself, is to be determined not by its title, alone, nor by the question whether it professes to be an amendment of existing laws, but by comparison of its provisions with prior laws left in force, and if it is complete on the subject with which it deals it will not be subject to the constitutional objection, but if it attempts to amend the old law by intermingling new and different provisions with the old ones or by adding new provisions, the law on that subject must be regarded as amendatory of the old law and the law amended must be inserted at length in the new act. [Stimer, 248 Mich at 293 (POTTER, J., dissenting) (quotation marks and citation omitted).]
There is thus an undeniable “know it when you see it” quality to the “act complete in itself” requirement. “Arguably, no act is an ‘island entire of itself.’ Every act draws on some other act or acts—perhaps an appropriation act or the Revised Judicature Act or an act establishing a unit of government. ‘Completeness’, then, is necessarily
Our seminal case on this topic is Mahaney. In that case, the Legislature had enacted a city charter for Detroit, 1857 PA 55, and had adopted certain amendments to that charter thereafter, 1861 PA 136. Later yet, it adopted a law providing for a “police government” for the city. 1865 PA 78. In doing so, the 1865 law “modifie[d] the powers and duties of sheriffs, constables, water and sewer commissioners, marshals, mayors and justices, and impose[d] new duties upon the executive and the citizen,” Mahaney, 13 Mich at 497, and thus made implicit changes to the statement of those powers and duties from the 1861 law. The 1865 law was alleged to violate the Reenact-Publish Clause. We upheld the 1865 law, but our rationale in doing so was not that the constitutional language went no further than prohibiting the form of blind amendments. Rather, we said that the 1865 law was constitutional because it was an “act complete in itself“—it told the reader everything the reader needed to know to implement its single object, and while it incidentally affected other laws, they were reconciled via the normal process of statutory interpretation. Id. Or, as we put it when the no-fault law was challenged as violating the Reenact-Publish Clause, “It is a complete act and does not confuse or mislead, but publishes in one act for all the world to see what it purports to do.” Advisory Opinion re 1972 PA 294, 389 Mich at 476.
An example of a case involving a statute that was not “complete in itself“—and thus violated the Reenact-Publish Clause—is Mok v Detroit Bldg & Savings Ass’n No. 4, 30 Mich 511 (1875). In Mok, the Legislature had adopted a law “to authorize the formation of corporations for mining, smelting or manufacturing iron, copper, mineral coal, silver or other ores or minerals . . . .” 1853 PA 41, title. It then passed a law “to authorize the formation of corporations for building and leasing houses and other tenements,” 1855 PA 133, title, but this act was only a single paragraph and provided that the 1853 rules for the organization of mining corporations were extended to corporations for leasing houses. Later yet, the Legislature passed a law “to authorize the incorporation of building and savings’ associations,” 1869 PA 152, title, which incorporated by reference the 1855 requirements for corporations for leasing houses (and which, in turn, incorporated by reference the 1853 law for mining corporations). The 1869 law thus “referred parties in this circuitous manner to . . . [the 1853 law] for the requirements in organization,” but it also “undertook at the same time to dispense with some things required by [the 1853 law], and to make some changes” suitable for the type of corporate entity the 1869 law contemplated creating. Mok, 30 Mich at 521. The result was that
[t]he act of 1853 has been, for the purposes of building and savings associations, incorporated in and made a part of the act of 1869, but with several changes and modifications, and these not made by the re-enactment of the sections changed or modified, but only by indicating the extent of the changes, leaving the parties concerned to fit the new act to the old as best they may. It is unfortunate for those who have had occasion to attempt it, that this case illustrates so
forcibly the evils of this species of legislation; for on many points it is impossible, in seeking for the legislative intent, to get beyond the regions of pure conjecture. [Id. at 523.]
We held the 1869 law unconstitutional. “While the act of 1853 [was] left untouched as to the organizations contemplated by its provisions, it is, for the purposes of building and savings associations, altered in most important particulars in disregard of the constitutional requirement.” Id. at 529.
What has been attempted here is, to duplicate an act, but at the same time to accommodate it by indirect amendments to a new class of cases, in disregard of the constitutional provision which requires each act of legislation to be complete in itself, and forbids the enactment of fragments which are incapable of having effect or of being understood until fitted in to other acts after by construction or otherwise places have been made for them. No such legislation can be sustained. [Id.]
Cases in which a statute survives a constitutional challenge (as in Mahaney), and cases in which a statute is held unconstitutional (as in Mok), do not exhaust the possibilities under our caselaw concerning the Reenact-Publish Clause. “The Mahaney and Mok cases . . . mark two outer boundaries. Between the two, further lines can be drawn.” Advisory Opinion re 1972 PA 294, 389 Mich at 496 (LEVIN, J., concurring) (citation omitted). In Alan v Wayne Co, 388 Mich 210; 200 NW2d 628 (1972), we said that one statute could have an unconstitutional effect on another, even if both statutes were themselves constitutional. The facts of Alan were convoluted, but the dispute concerned whether Wayne County could, via a shell game, pledge its full faith and credit to guarantee payment on bonds that would finance construction of a replacement for Tiger Stadium. To build the stadium, Wayne County had established a “Stadium Authority” under the building authority act, 1948 (1st Ex Sess) PA 31. The plan was that the Authority would issue bonds to pay for the stadium and then lease the new stadium to Wayne County, whose “lease payments” would cover the costs of the bond payments. However, the Authority would also sublease the stadium to the Tigers, and these payments, from the Tigers to the Authority, would cover the Authority’s bond obligations; the lease to and payments from the county were only a backstop to ensure the bondholders were paid in the event that revenue from the Tigers was inadequate.
The fundamental inquiry in Alan was whether the Authority was issuing revenue bonds—which are paid for by revenues generated by the improvement they finance—or tax bonds, which are guaranteed by the full faith and credit of the government to pay its obligations as backed by its authority to impose taxes to generate sufficient revenue. The Authority pointed to the Revenue Bond Act (RBA), 1933 PA 94, and the aforementioned building authority act as sources of its power to issue bonds, but both statutes only allowed it to issue revenue bonds. If the bonds that it contemplated selling were going to be backed by the county’s full faith and credit, that would be a tax bond that the Authority did not have the power to issue, which would scuttle the project. And the ultimate guarantee that the bond payments would be made in the event that the sublease to the team was inadequate were the county’s lease payments to the Authority. The Authority therefore needed the county’s lease payments to be construed as a form of revenue derived from the use of the stadium and not as a simple promise from the county to use its taxing authority to generate sufficient funds if the
We first analyzed the lawfulness of the arrangement under the RBA. As its name implies, bonds issued under the RBA must be revenue bonds—they can be satisfied “solely from the net revenues derived from the operation of the public improvement.”
The Authority argued that even if the RBA did not authorize the bonds at issue, the building authority act did. The building authority act authorized the Authority to ” ‘issue self-liquidating revenue bonds in accordance with’ ” the RBA, and as with the RBA, ” ‘[s]uch bonds” were to be ” ‘payable solely from the revenues of such property.’ ” Alan, 388 Mich at 253-254. The building authority act thus incorporated the RBA by reference, but there was an important proviso: under the building authority act, the phrase ” ‘revenues of such property’ ” was to ” ‘be deemed to include payments made under any lease or contract for the use of such property.’ ” Id. We had already held that the county’s lease payments did not qualify as “revenue” under the RBA because the county was not the true user of the stadium. But when dealing with a bond issued under the building authority act, the statute decreed that such payments were to “be deemed” a form of revenue. In other words, the Authority argued that even if the county’s “lease payments” could not be treated as revenue that supported the bonds under the RBA, those same “lease payments” could be treated as revenue that supported the bonds under the building authority act.
In Alan, 388 Mich at 236, we rejected “[t]his effort to treat tax bonds as revenue bonds,” recognizing it for the shell game it was. We concluded that any bonds supported by the county’s “lease” payments to the Authority were, in effect, tax bonds—the county’s full faith and credit was behind them. Further, we said that the building authority act incorporated the RBA by reference, meaning it only allowed for bonds that complied with the RBA. Id. at 265-266. For the building authority act to indirectly give tax bonds the blessing of the RBA was an unconstitutional amendment by reference of the RBA. What is notable about Alan is this: while it held that the challenged section of the building authority act was an amendment by reference of various sections of the RBA in violation of the Reenact-Publish Clause, it did not hold that the building authority act itself was unconstitutional. It was the building authority act’s effect on the RBA that was objectionable.
In my view, our caselaw establishes that the Reenact-Publish Clause exists precisely to prevent the sort of confusion that exists in this case. Statutes may have only a single purpose, which groups our laws into “silos” whose contents are related; and, once our law has been organized into those silos, adjustments must be made by
While the boundaries of our “amendment by reference” caselaw are not defined with precision, I believe this situation is clearly the sort of lawmaking our doctrine prohibits. I therefore find this constitutional objection to the effect of
Elizabeth T. Clement
Bridget M. McCormack
Megan K. Cavanagh