Woll v. Attorney General

Mich 500 409 GENERAL WOLL ATTORNEY v POSNER PEOPLE v KEANE PEOPLE Nos. 7, 8). (Calendar 3, 1979 60809, Argued April 61257, 60810. Docket Nos. rehearing for on motion 1980. Order Decided October Decided post, 551. personal Lawyers indicted for solicitation who have been challenge constitutionality of the statute claims applica- imposes liability act criminal for that and compensation workers’ tion of statute claims. against Attorney brought General an action S. Woll Arthur Attorney seeking Prosecuting Wayne County a declara- and the unconstitutionally tory judgment the solicitation statute prohibited, infringes adequate give notice of the conduct fails to speech, protected discre- and confers excessive areas of free on Woll, alleged governmental he who authorities. tion on represent clients in matters firm and his law compensation grand jury. including claims and that workers’ activities, sought inquiring to have the into his also was then compensation inapplicable to workers’ construed as grand jury plaintiff for solicita- The was indicted claims. claims, claims, conspiracy personal injury to solicit such tion of justice. justice, conspiracy The to obstruct obstruction J., Gilmore, Court, granted judgment Wayne W. Circuit Horace plaintiff ground him the statute denied for application equal protection to solicitation its law ^[2] [1, [3, [4, [8-13] [14-18] 73 Am Jur 16 Am Jur 4, 7,15-18] 6] 5] cases action. 21 Am Am "Ambulance 16 Am Jur Am Jur 2d Jur 67 ALR2d 859. Jur ground 2d, 2d, 2d, References Am 2d, Constitutional Statutes § Statutes § 2d, (Rev),Attorneys at chasing” or Jur 2d Criminal Law 17.§ Constitutional disbarment, (Rev), 295 et for Points 296. similar Law 746§ Attorneys seq. Law 223. suspension, Law solicitation of in Headnotes § et 63.§ at Law §§ seq. other 62-66. personal injury disciplinary Woll personal injury actions, other actions but not to solicitation of unconstitutionally it was and that overbroad. Court of Walsh, P.J., JJ., Appeals, Beasley, D. F. V. J. Brennan reversed, holding that "facial doctrine the overbreadth” inapplicable speech to a to statute addressed commercial and plaintiff applied that the statute as to Woll is not unconstitu- grounds vagueness protection equal tional on of or denial of (Docket 30051). 29914, appeals. Nos. Plaintiff Woll Posner, Keane, charged Noel Samuel and others were with con- personal spiracy to solicit claims. The Recorder’s Court Detroit, J., Henry Heading, by of L. denied motions defendants ground Keane to the Posner and dismiss indictments on the unconstitutionally equal that the solicitation statute denies laws, protection give adequate of the to notice fails of its proscription, Appeals, and is overbroad. The Court of R. M. Maher, P.J., JJ., Borchard, and N. J. and Kaufman reversed on (Docket of the of the issue overbreadth the statute Nos. 29819). people appeal. The Held: statute, general 1. The rule that a such as the solicitation statute, apply specific does not where there is a statute which matter, comprehensively subject addresses the the here Work- Act, Disability Compensation er’s is an aid to construction inapplicable which is where there is no between conflict the strictly statutes. The rule that a criminal statute is to be only persons warning means construed are entitled fair proscribed not, by that the conduct is and will that the courts construction, meaning beyond stretch the terms the legislative include statute to conduct outside of the statute, construing intendment. In a criminal courts seek to implement legislative purpose. determine and An offense is statute, may they confined the words of the but be read given meaning naturally harmony purpose with the and intent the law as far as be done without distortion language. language 2. The of the solicitation statute includes the solici- compensation resulting tation of workers’ An claims. undergoes from accident no it also transformation when arises employment; “person injured” "out of in the course of’ "injured is nevertheless An as result of an accident”. injured specific requires who worker has suffered a loss or who wages earning medical attention or from suf- is disabled has "damages” Disability fered no less than if the Com- Worker’s pensation enacted; although Act had not seeks "com- been he asserts, pensation” money judgment, rather in the than a he statute, damages”. words solicitation a "claim for 409 Mich plaintiff argument by Woll that the statute should attorneys’ compensation apply to claims because not workers’ regulated persuasive, is not such cases are statute fees in subject attorneys’ always judicial fees been because have contingent personal injury supervision, are fees suits regulated by court The solicitation automobile now rule. precise appears negligence been have evil which claims However, legisla- statute. the enactment of the occasioned protection appears to the tion also to have been directed importuning, protection injured persons against defen- claims, up protec- against and the those who would drum dants being with claims which tion of the courts from overloaded presented. appli- not be These concerns are as otherwise would compensation they general cases are to to workers’ cable contempo- injury litigation. some evidence or a Absent Legislature construction that did intend raneous claims, compensation workers’ should include provide them. statute must fair to include A criminal construed proscribed persons warning so that affected of the conduct statutory requirement; to the their conduct conform can make requires pro- the statute fairness construction compensation given claims solicitation of workers’ scribes only. prospective effect equal 3. It is contended the solicitation statute denies singles protection of law in that out solicitation of the claims, personal leaving injury other of of all forms solicitation urged attorneys employment by Court is to untouched. The interest”) scrutiny” ("compelling apply test on the "strict state ground with First Amendment the that the statute interferes charges grew rights. in of The of solicitation these cases out involving rights proposed of the commercial transactions expression. political or The Court of association against application hasty First States of United has cautioned precedents Although speech. Amend- to such First Amendment protection to forms of ment has been extended some solicitation by attorneys, in-person is in a commercial context solicitation hence, and, protection right not accorded as a fundamental require regulating scrutiny” such does not "strict of statute then, statute, applied test to The is the conduct. test legislation generally: classification chal- economic whether the legitimate lenged rationally The related a state interest. consumers, regulat- legitimate protecting has in state interests among transactions, maintaining ing standards commercial profession, protecting of licensed and defendants members a litigation. Because from the fomentation of courts Woll there such are one more interests which would be furthered challenged this and the sufficiently classification is interest, related to the of furtherance each there is no need to attempt particularize which interest was in the forefront of legislative decision. have, class, injury distinguishing 4. Personal claims as a justify special light characteristics which treatment of greater the state interests involved. There of likelihood personal harm to the client as the of result of solicitation injury litiga- claims than as the result of solicitation of other injury universally tion. Personal claims are almost handled on contingent fee and there is no fixed value for the claimant’s injuries. opportunities combination these factors creates taking advantage Also, high of the client. volume of personal claims, injury coupled contingent system, with the fee courts, pressures contributes overload to settle impractical disposition claims make it to insist on a on the Barring personal injury merits of of them. all the solicitation of discourages litigation claims the fomentation and is ration- ally legitimate discouraging to a related state interest bringing marginal and nuisance claims. is the It coincidence many distinguishes personal injury factors that claims from litigation; pointing particular other risks of harm from personal of other solicitation claims or solicitation of defense of injury claims does not render the classification irrational. 5. penalty The Revised Judicature Act creates a civil for all by voiding agreement, Legislature but the could properly liability conclude that the added deterrent of criminal necessary discourage personal injury the solicitation of presence potential gain, claims. The aof for an indeterminate high cases, volume of and the absence of a fixed value of the claims, make civil sanction of invalidation the solicited agreement personal less efficacious Most matters. injured persons, they hospitals because are taken to and identi- fied, readily litigants are more solicited than other civil generally they legal do not have retained counsel. The limita- tion of the criminal solicitation statute to objects sought claims bears a rational relation to the to be furthered; lawyers equal the in these cases are not denied protection the of law. argued prohibition 6. It is that the of blanket the statute against "directly soliciting” vague indirectly or it is because overbroad, impinging on First Amendment freedoms under decisions of the Court of the United That court States. application has held the that overbreadth has to doctrine no 409 Mich professional speech the kind involved in cases of of commercial challenge may advertising. as also be raised to overbreadth An political protected by conduct the activities associational well solicitation involves conduct as Amendment because First as those speech. the to activities The overbreadth of statute substantial, in relation whether it is real and be tested must legitimate sweep. appears plainly It that the statute’s to the challenged is not real and substantial because the overbreadth present to the kind of threat solicitation statute does excep- justifies expression that this market in ideas and free approach adjudication. tional constitutional Any of the statute can be 7. "facial” overbreadth solicitation limiting by a a construction does not cured construction. Such rather, but, stating rewriting exceptions to involve the statute statute, prohibition. The when otherwise blanket statute’s enacted, exceptions, of the Su- admitted of no but decisions require preme the United States now that some be Court of Therefore, light legislative purposes of in the made. statute, apply only it is construed solicitations pecuniary primarily to interest of are done advance lawyer com- or in whose interest solicitation is who solicits mitted. seriously they lawyers cannot contend did 8. The here proscription. Their conduct fair notice of the statute’s not have adequate punished, they legitimately had notice be could due-process punish Legislature had chosen it. retrospective application judicial interpretation of a bar on the only operates is an issue of where there a criminal statute, notice, i.e., vague ambiguous its fair where an before guidance gave inadequate interpretation, to the individual However, process rights regulated. due would

whose conduct applied limiting before be unless a construction is violated prosecution lawyers, of a because without benefit these might statute, person limiting construction of the solicitation statute which be convicted for acts within terms cannot, by Supreme Court of the reason decisions States, proscribed. fact has been United Unless the trier of construction, properly apprised limiting be said cannot finding its that either its assessment of the evidence or addition, guided by there is the risk the construction. In may deprive opportunity a defendant of belated construction charging Posner The indictment make out a valid defense. merely the solicitation statute and Keane with violation of conclusion, gives grand jury’s no indication states the proba- grand jury found the nature of the activities which Attorney Woll Therefore, believe had ble cause to occurred. that indictment quashed, prejudice be must without to reindictment of Posner Keane as it and basis of the statute is now construed. application The of the statute as to solicitation of workers’ compensation given prospective only; claims has effect been therefore, dismissed, indictment of Woll should also be but prejudice per- without his for to reindictment compensation sonal claims other than workers’ claims. apply 9. The solicitation statute does not to truthful advertis- ing by only partial limiting lawyer, but this is a construction. previously prophylactic The Court has decided that the mea- in-person prohibiting pecuniary gain sure of solicitation for prohibit lawyers cannot be so broad as all solicitation for remuneration; disciplinary against rule solicitation cannot significant danger reach conduct where there is no of over- However, reaching. scope regula- determination of the of state in-person pecuniary gain tion solicitation for should be argument briefing made without the benefit of and parties. Attorney interested vWoll General is remanded Appeals proceedings. Court of for further against dismissed; The indictments Posner and Keane are Attorney Appeals. Woll v General is remanded Court of (1978) App 80 Mich NW2d affirmed. (1977) App 79 Mich 261 NW2d 209 reversed. — — 1. Law Criminal Statutes Construction. strictly The rule that a criminal is to construed means only persons warning are entitled fair that the conduct proscribed not, by construction, and that the courts will meaning beyond stretch terms the statute to include legislative conduct which was outside of the intendment. — — 2. Criminal Law Statutes Construction. construing Courts a criminal statute seek must to determine and implement legislative purpose; an offense is confined statute, given they may naturally words of the but be read meaning harmony purpose with the intent the law as far as language. be done without distortion Barratry — — — 3. and Client Solicitation Personal Injury — Compensation — Claims Workers’ Words Phrases. language imposes liability of the statute which criminal for solicitation of claims includes solicitation of compensation injured workers’ cases because worker who specific requires has suffered a loss or medical attention or is 409 Mich 500 earning wages "person injured”, is a and he has from

disabled Disability "damages” if no than the Worker’s less suffered enacted; although Compensation the worker had not been Act judgment money compensation, for his than rather seeks (MCL damages” seq., injury, 418.101 et he asserts a “claim 28.642). 750.410; seq., et 17.237[101] MSA Champerty Barratry — — — Attorney 4. Solicitation Client Liability Legisla- Injury — — — Claims Criminal Personal Purpose. tive imposes liability criminal for solicitation of statute which precise personal injury which not limited to the evil claims is enactment, apparently the solicitation of automo- occasioned its agreements; contingent negligence the stat- for fee bile claims injured persons protection of ute was also directed to potential importuning, protection against of defendants protection up against and the of those who would drum claims being otherwise with claims which the courts from overloaded 28.642). (MCL750.410; presented be MSA would not Barratry — — — Attorney 5. Solicitation Personal and Client Compensation. Injury — Workers’ Claims imposes liability for solicitation of criminal The statute construed, injury personal some evi- claims should be absent construction, legislative contrary judicial intent or dence of a compensation claims be- of workers’ include the solicitation statute; underlying policy risks it is within cause litigation importuning are as and fomentation of clients gen- compensation they applicable cases as are to workers’ (MCL 750.410; seq., litigation et 418.101 eral 28.642). seq., MSA et 17.237[101] — — 6. Law Statutes Notice. Criminal warning provide the conduct A must fair criminal statute persons proscribed it can their conduct so that affected make requirement. statutory conform to — Attorney Barratry — — Solicitation 7. Personal and Client Liability — Injury — — Con- Statutes Claims Criminal struction. requires statutory that the solicita- construction Fairness that the compensation subject to criminal claims tion workers’ liability given prospective construc- effect different be because (MCL placed upon the could have been solicitation tion 28.642). 750.410;MSA Attorney Woll Attorney — — Equal 8. Constitutional Law Protection Barratry Rights — — — — Client Solicitation Civil First Speech. — Amendment Commercial imposes liability The contention that the statute which criminal claims, personal injury for solicitation of but which does not prohibit employment by attorneys, other solicitation of denies equal protection of the law should tested whether the statutory rationally legitimate classification related to a state interest; although protection First Amendment has been ex- by attorneys, in-person tended to some forms solicitation protection solicitation a commercial context is not accorded and, right hence, require as a fundamental does not strict regulating scrutiny of a statute such conduct where has been (US challenged protection grounds Const, equal I, Am Am 28.642). XIV; 1, 2; 750.410; Const art MCL MSA § — — Equal 9. Constitutional Law Protection — — Injury Client Solicitation Personal Claims. Attorneys charged liability per- with criminal solicitation equal protection by sonal claims are not denied statutory prohibit classification which does not other forms of rationally legitimate it is because related to the consumers, protecting regulating interests state com- transactions, maintaining among mercial standards members of profession, protecting a licensed and defendants and the courts (US Const, litigation XIV; from the of fomentation Am Const 1, 28.642). 1963, 750.410; art MCL § MSA — — — 10. Constitutional Equal Law Protection State Statutes Interest. challenge statutory equal Decision aof to a classification on protection grounds requires of the identification state interest sought is, challenged statute; by to be advanced there however, particularize attempt no to of need several legitimate legislative state interests inwas the forefront of the judgment where the state interests would all be furthered challenged sufficiently the statute and the classification is (US Const, XIV; related to the furtherance each of interest Am 2). 1963, 1, Const art § — — Attorney 11. Constitutional Equal Law and Protection Barratry Injury — — — Client Solicitation Personal Claims. have, class, distinguishing Personal claims character- special justify prohibiting istics which treatment a statute light solicitation of such claims in of the state interests in- Mich 500 distinguishes volved; many of factors because coincidence litigation, personal injury the fact that one claims from other point particular of of other risks harm from solicitation personal injury does not render claims claims or defense (US Const, XTV; statutory Am Const classification irrational 28.642). 750.410; 1963, 1, 2; MCL MSA art § Attorney — — Equal 12. Constitutional and Law Protection Champerty Barratry — — — — Solicitation Crimi- Client Liability Injury — Claims. Personal nal Legislature properly deterrent of could conclude any liability penalty to a civil which voids criminal addition agreement professional employment for the solicited discourage attorney necessary to legal business; the solicitation of other claims but not agreement is civil sanction of invalidation of the solicited matters, poten- personal injury which have a less efficacious in gain, high injured most volume and indeterminate tial persons readily are more identified and solicited than other legal litigants generally do have retained counsel civil (US 600.919, Const, 1, XIV; §2; Am Const art MCL 28.642). 750.410; 27A.919, MSA — — — 13. First Constitutional Law Statutes Overbreadth Speech — — Commercial and Client Amendment — Solicitation. prohibi- imposes A the statute which a blanket contention that soliciting” against indirectly personal injury "directly tion face, impinging upon Amend- on its First claims is overbroad in-person protection given advertising truthful solici- ment pecuniary gain, rejected must over- tation for because speech application no commercial breadth doctrine has (US 750.410; Const, I; kind in such Am MCL involved acts 28.642). MSA — — — 14. Criminal Law Statutes Construction Constitutional Law. power Legislature It for a court is no intrusion on the excep- prohibition engraft statute’s broad statement limiting tions does no violence where construction exceptions Legislature’s such central intent and where without (US being unconstitutionally overbroad must fall as I). Const, Am Liability — Attorney — — 15. and Client Solicitation Criminal — — — Statutes Constitutional Law First Amendment Overbreadth. imposes liability prohibition for criminal of the statute which Attorney Woll personal injury apply only solicitation of claims is construed to primarily pecuni- to solicitations which are done to advance the ary lawyer interest of a who solicits or whose interest committed; solicitation is the statute when enacted admitted of exceptions, concerning pro- no but decisions First Amendment political expression tection of associational interests and now (US require Const, exceptions I; that some be made MCL Am 28.642). 750.410;MSA — — — — 16. Criminal Law Statutes Due Construction Process Attorney — Client Solicitation. imposes liability The statute which criminal for solicitation of claims, although it must be construed to avoid overbreadth, provides adequate warning proscribes it in- person Legislature prohibit of solicitation the kind can States; under decisions of the Court of the United applied statute when construed to cure the can overbreadth be retroactively in-person to such within the bounds of process, attorneys charged due because with solicitation cannot they contend that did not have fair notice the statute’s (US Const, I, 1, proscription XIV; 1963, Am Am Const art § 28.642). 750.410; MCL MSA — — — — 17. Criminal Law Statutes Construction Due Process Indictment and Information. requires may attorney The Due Clause Process that before prosecuted personal for solicitation claims he must be limiting indicted for acts fall within the construction proscribes only the solicitation statute certain kinds solicitation; apprised unless the trier fact has been construction, limiting properly it cannot be said that either its finding guided by assessment evidence or its limiting construction, and there is the risk that a belated limiting deprive opportu- construction a defendant of an nity (US Const, I, XIV; out make a valid defense Am Am 1, 28.642). 750.410; Const art MCL § MSA Barratry — Champerty — — 18. and Client Solicita- —tion Constitutional Law. measure, may, prophylactic prohibit in-person The state as a pecuniary gain lawyers solicitation of clients for there where overreaching, evils; is a risk of undue how- influence other ever, prophylactic pro- measure cannot be so broad sis to by lawyers remuneration, hibit all solicitation present courts must define what circumstances can be said to Mich attempt legitimately the state

risks of the evils 28.642). 750.410; (US I, XIV; Const, Am Am MSA MCL avoid P.C., DuMouchel, Barns, & Golob for plaintiff Woll. Kelley, A. Robert

Frank J. General, Attorney Derengoski, L. and William Ca- General, Solicitor halan, Prosecuting Attorney. Organ- Foley, Wayne Director,

Patrick J. County Teranes, Force, and Paul S. ized As- Task Crime Prosecuting Attorney, people. for the sistant Casey, General, Thomas L. Attorney Assistant for General. Attorney defendant Stephens, Chief,

Theodore Depart- Deputy Civil Marchand, and Rheo C. ment, Assistant Prosecut- County Prose- ing Attorney, Wayne for defendant cutor.

Posner, & Posner Posner for defendant Posner. Lippitt, Perlove, Harrison, Zack Friedman & (by Feldman) Bernard S. Harrison Robert for Keane. defendant makes it a J. A statute misdemeanor

Levin, as a result an accident person injured solicit a damages for making a claim or purpose for the Woll, on the prosecuting injury.1 an action based firm, organization any person, copartnership, association or "A officers, unincorporated, any kind, incorporated or or either firm, any person,- agents, servants, employees, copartnership, such or members kind, any incorpo- organization of either or association division, any unincorporated, or bureau or committee or rated that incorporated unincorpo- organization, or either association or by agent, rated, indirectly, individually directly or who or shall person servant, member, injured employee, the result of solicit executor, guard- accident, administrator, assigns, his heirs or his Woll lawyers, Keane, who are -Posner were indicted They under statute. that the contend statute is vagueness deprives void and because them of equal protection of the law. Woll further contends inapplicable the statute is to workers’ com- pensation cases.

We hold:

1) Legislature intended that the statute apply compensation cases, to workers’ at least where claim arises out anof accident. Because ambiguity expression not, of in the did the statute provide requisite however, the notice a crimi- compensation nal statute that workers’ claims give prospec- were within its ambit. We therefore only tive effect to our construction that the statute applies compensa- to the solicitation of workers’ arising tion cases out anof accident.

2) prosecution personal The limitation injury deny equal protection claims does not of the Legislature properly law. The could conclude that personal presents solicitation of claims a ian, family person injured purpose or members of the for the representing ing person making damages prosecut- that a claim for or arising an or personal injury action causes of out action of a claim against any person, corporation, employ other firm or or to counsel purpose solicitation, misdemeanor, for the guilty of that of a upon thereof, person, punished by shall conviction if a natural a $500.00, by imprisonment not fine exceed 6 to exceed or for a term not months, penalties apply upon or both. The same shall copartnership, agent conviction corporation, ato member of a or an officer or aof organization, in, agent, association or other or officer or to, participate who shall consent or or aid abet a violation of this upon part member, copartnership section of which he ais corporation, or organization of the association or he which is such agent. an officer or A contract a of such entered into as result solicitation is void. This subsection shall not unsolicited affect an firm, by person, corporation contract entered into a with an attorney duly practice 750.410(1); admitted to law in this state.” MCL 28.642(1). MSA foregoing by The reflects amendments made 1975 PA appear indicted for violation stylistic to be and not substantive. Posner and Keane were of, to, complaint speaks and Woll’s the statute as it read before the 1975 amendments. 409 Mich different from solicita- significantly of harm

risk business, including legal of other tion defense, special that criminal disin- discourage such behavior. centive was needed 3) may While the be unconstitutional statute overbreadth, can be the overbreadth because of The statute construction. when by limiting cured to the applied can be retroactively so construed conduct, because, although the stat- complained-of overbroad, provided adequate warning it ute is solicitation of the kind proscribed in-person that it can Legislature prohibit. 4) however, must, be dismissed indictments grand juries’ assessment evi- because circumscribed dence had theretofore been discretion; limiting grand juries’ construction construction grand applying a literal juries, statute, have indicted and an amended may pro- filed for conduct indictment have been the First Amendment. Since tected con- adequate warning proscribed provided dismissal is without prohibited, duct can be limiting a after construc- prejudice reindictment placed on the statute. tion

5) in their parties None of the have considered limiting proper briefs what would constitute a sought declaratory Woll judgment. construction. Appeals his case to the Court of so We remand con- limiting it can determine construction with the sistent First Amendment.

I the statute unconsti- Appeals Court held in Posner and Keane and constitutional in tutional Woll. We granted appeal leave to resolve Attorney Woll General conflict, limited to whether the statute is unconsti- infringes protected tutionally overbroad in it speech expression, freedom areas of and equal protection guaran- whether violates the Michigan tees of the and United States constitu- additionally, and, Woll, tions to whether applies compensation to workers’ cases. Posner and Keane Posner and Keane were indicted citizens’ grand jury charge conspiracy on a to solicit personal preliminary claims. After exami- they nation were bound over for trial and an amended indictment filed.

The Recorder’s Court denied motions dismiss alleged the statute is unconstitutional equal protection vague because it denies and is failing give adequate proscription notice of its being and in overbroad. Appeals granted interlocutory ap

The Court of peal. reaching equal protection claim, Without unconstitutionally it held that the statute is over- broad, and dismissed the indictment.2

Woll complaint judgment declaratory Woll filed a injunctive against relief Wayne County Prosecuting Attorney. He al- leged attorney engaged that he is an a compensation practice, and workers’ that an controversy attorney any actual exists because engaged practice in such a liable for would be Posner, People App 79 Mich 261 NW2d 209 409 Mich and, additionally, the under statute3 prosecution an underway inquiry already there was because agency.4 law enforcement activities aby into his is unconstitutional that the statute Woll claimed law protection of the and equal it denies because i) adequate failing provide to it is in vague because ii) infringing on prohibited, of the conduct notice iii) (overbreadth) and speech protected areas of governmental discretion on au- conferring excess statute, sought Woll the if thorities. also have constitutional, inapplicable work- construed compensation ers’ cases. month,

Within Woll was indicted citi- grand charges zens’ of solicitation of jury per- claims, conspiracy sonal solicit claims, of justice conspiracy and obstruction justice. following day obstruct declaratory in filed a Woll’s counterclaim asking action the court to construe judgment plaintiff controversy between the and the "That an actual exists Michigan any attorney herein in that in State who defendants is personal injury representation of actions in the clients involved cases, is, compensation plaintiff would liable and as the workers’] statute, prosecution irrespective of for scrupulously the infringes the reasonable the solicitation how under attempt attorney would to conform his conduct to statute, overbroad, vague, is so said expression protected speech upon to of areas freedom person impossible virtually it for a extent makes intelligence ordinary to conform his conduct to the * * * fully statute as is more described infra.” plaintiff controversy between an additional actual exists "That last of the that within the several and defendants reason fact be, weeks, been, ongoing inquiry by a an there has and continues to existence, body, and areas law nature certain state enforcement beyond herein which known to the defendants activities of are well presumptively peradventure, protected by involving plaintiff, matters are Michigan secrecy provisions of Criminal Code 28.944(1), plaintiff Procedure, 767.4a; namely, will MSA so MCL complaint, detailing activities in this the nature of such refrain from thereof, course, will, scope as known insofar but disclose him, deny existence to the court camera should defendants complaint.” controversy to this in their answers actual Attorney Woll v 515 in "a manner consistent” with statute the consti Michigan.5 of tutions the United States and held circuit court that statute denied equal protection of the law and was unconstitu tionally Appeals overbroad. The Court of held that inapplicable facial overbreadth doctrine is to a speech6 addressed commercial statute and that applied statute as to Woll is not unconstitu equal vagueness protection grounds.7 tional on or

II prohibit Woll that the contends statute does not compensation the solicitation of workers’ claims. argues He that it "should be construed in a nar- manner, row consistent with the doctrine that penal strictly construed, statutes to be are so that [statutory] 'person injured term as the result apply compen- anof accident’ does to workers’ sation cases”.

A * * * applies person The statute to "[a] who * * * person injured shall an accident a solicit of the result * * * purpose representing for the person making damages claim or 5 assuming arguendo plaintiff standing "That has and this jurisdiction, respectfully urged court has this honorable court is construe the solicitation statute in a manner consistent with both Michigan, constitutions of the United States and the State that the may applied impinge upon protected solicitation statute not be speech expression, applied prohibit areas of free but persons injured purpose representing the solicitation of for the person making damages prosecuting any such claim for action arising any personal injury or causes of out action claim.” 6 General, App Woll v 80 Mich NW2d

7 Id., p 736. Mich arising prosecuting action an action or causes of * * personal injury *”.8 claim out Disability Worker’s Com that the Woll contends compre specific pensation hensively is a statute which Act9 subject entire matter addresses general compensation claims and a stat workers’ apply. the solicitation statute does not ute such as inapplicable10 where, as This aid to construction here, no the statutes. there is conflict between strictly Similarly, criminal while a only construed,11 that to mean we understand warning persons that fair the con are entitled to proscribed will not the courts duct construction terms meaning beyond the stretch the statute to include conduct outside legislative "The con intendment. rule of strict an offense to the words of the struction confines statute, permits only the words not to be but given meaning naturally in har but to be read mony purpose as and intent of law with lang done without distortion of far as uage.”12 construing any statute, In a criminal as implement statute, we seek to determine and other legislative purpose.

B originally 1912,13 Worker’s As enacted 8 only applies judge The circuit in Woll declared the statute person injured. reject actually We that construction solicitation of a as we Legislature sought proscribe persuaded are injury groundless as solicitation of the as well meritorious claim. 9 17.237(101) seq.; seq. MCL 418.101 et MSA et Controller, 337; City Highway 331 Mich 10 State Detroit Comm’r v (1951). 49 NW2d 318 11 (1936). 353; People Goulding, 275 Mich NW v Co, Hightower 262 Mich 247 NW v Detroit Edison (1933). 175, 189-190; People Hall, Similarly, 391 Mich ALR 509 see 215 NW2d 166 (1st Sess) 13 1912 PA 10. Ex Woll Disability Compensation Act covered "accidental” injury.14 speaks statute, 1925,15 The solicitation enacted person "injured of a as the compen result of an accident”. Since the workers’ injury, the lan covered accidental sation statute guage in terms includes of the solicitation statute compensation of workers’ claims. the solicitation resulting undergoes An from accident no it also arises "out of and in transformation when the course of’ employment; "person injured” "injured the result nevertheless accident”. "personal The term claim” describes a compensation claim16as well as a claim workers’ in tort. sounds in

While "action” or "causes action” phrase pleading, the alternative common-law making statute, "in claim for the solicitation damages”, can mean either a claim tort or for compensation. injured An who workers’ worker specific requires has suffered a loss or who medical earning wages attention or is disabled from has "damages”

suffered no than if less the workers’ compensation act had not been enacted and his recovery only claim for court of law. could be asserted in a

Although "compensa- a worker seeks judgment, money tion” rather than a he asserts a damages”. "claim for

argues support

Woll that whatever rationales general prohibition, inapposite they are compensation attorneys’ workers’ fees in because compensation supervised.17 workers’ But cases are Works, 157; 148 Adams v Acme White Lead & Color 182 Mich NW 485 151925 PA 280. compensation provides compensation The workers’ statute payable respect employee, personal shall be who receives a "[a]n * * injury arising employment out of and in the course of his 17.237(301X1) 418.301(1); supplied). (emphasis MCL MSA 17.237(858). 418.858; 17 MCL MSA 409 Mich subject judicial attorney always have been fees personal contingent supervision fees in regulated by now court rule.18 suits are contemporaneous legislative history There is no question or whether construction a court applies compen- workers’ the solicitation appears it been cases. Because to have sation primarily to the solicitation of directed claims meaning brought its in a court of law could be of such claims. confined to solicitation larger legislative pur- perceive, however, a We protection pose, injured directed to the one protection persons against importuning, against up who drum defendants those would protection system judicial and the claims from being with claims other- overloaded scope presented. If wise would precise to the evil which statute were limited apparently (the its enactment solicita- occasioned claims), negligence arguably tion of automobile apply cases which would not to the litigation major or the entitle- were not sources exist at

time of ments for which did not its product liability malpractice e.g., enactment, against cases and no-fault automobile actions

insurer. importuning fomenta-

The risks of of clients and litigation com- tion of are as real the workers’ litiga- pensation general personal injury area as in problem tion. in the work- Crowded dockets are per- compensation general well ers’ field as as litigation. As with sonal other compensation injury claims, insubstantial workers’ suits”. claims have coercive value "nuisance persuaded that, absent evidence We are some Legislá- contemporaneous construction that gcr 1963, 928. Woll v not ture did personal injury intend to include the solicitation of recovery

claims for which could be sought compensation statute, under the workers’ should construe the we solicitation statute to in- they clude solicitation of such claims because policy underlying are within the the statute.

While we conclude that the statute is directed to compensation the solicitation of workers’ claims as claims, well as tort we concede that a different placed upon construction could be especially It statute. important pro that a criminal statute warning proscribed vide fair of the conduct so that persons affected can their conform conduct to the statutory requirement. requires Fairness construction that the solicitation of workers’ com pensation given prospective claims is included be only.19 effect

Ill We address next the contention that the solicita equal protection tion statute denies of the law20in singles out solicitation of leaving claims, all other forms of solicitation of employment by attorneys untouched.

A challenged equal protection When a statute is

grounds, and, said, the first have some the decisive question, ality, appropriate is the test —minimum ration- scrutiny scrutiny.

means or strict (the Appeals The Court of in Woll issue was Keane) applied reached in Posner and the tradi- 19People Dempster, (1976); People 396 Mich 242 NW2d 381 Neumayer, 341, 368; (1979); People 405 Mich 275 NW2d 230 v Bloss (On Remand), 79, 394 Mich NW2d 20 Const, 1963, XIV; US Am Const art 2.§ Mich 500 judges rationality did test tional minimum challenge. Under that test first considered who a statute challenged upheld classifi if the will be legitimate relation to a a rational bears cation urged apply to the "strict We are interest.21 state scrutiny” ("compelling interest”) test,22 state ground that the statute interferes with First rights. Amendment scrutiny” is not contended "strict is

It regulates speech triggered or whenever a statute scope Amendm within First conduct Rather, it is that the classification claimed ent.23 represents protected with direct interference the content of the based on freedoms because speech is representation provide proposal in to —a prosecuting personal injury banned, is but claim representation any proposal provide in other permitted. is sort of lawsuit Chicago Mosley24 Dep’t of the United

In Police 21" challenged solely regulation as violat local economic 'When Clause, consistently ing legislative Equal this Court defers Protection particular desirability statutory as to the determinations * * * Unless a classification trammels fundamental discriminations. personal rights as ality classification suspect upon inherently distinctions such or is drawn race, alienage, presume religion, the constitution our decisions require statutory only discriminations and challenged rationally legitimate to a be related state ” Rogers, 1, 17; 887; 99 S Ct 59 L 2d Friedman v 440 US Ed interest.’ (1979), Dukes, 297, 303; quoting US 96 Ct New Orleans v 427 S 100 (1976). 2513; 49 L Ed 511 2d 22 test, necessary this to further a Under the classification must Note, Equal compelling Developments in the Law: state interest. See (1969). Protection, 82 L Rev Harv 1065 23 Act”, argument surely "Hatch Such an would fail. Oklahoma’s prohibiting ity, engaging partisan political employees activ- state from 607, Oklahoma, 5; challenged in 413 US fn Broadrick v (1973), protection ground equal 93 2d S Ct 37 L Ed on the prohibition applied employees. only state classified footnote, legislature saying challenge in a "the Court dismissed must have some positions employment leeway determining its leeway” hardly require "some restrictions”. A standard of scrutiny”. "strict 92, 95; Dep’t Chicago Mosley, 92 S Ct Police 408 US L Ed 2d Woll v

States Court indicated that the state compelling justify must show a state interest activity discrimination based on content.25 But the regulated Mosley protest through peaceful — picketing near the core of First Amendment —lies 25Mosley sought enjoin prohib enforcement of an ordinance that picketing any session, ited within 150 feet of school while it is in but exempted "peaceful picketing any school involved in a labor dispute”. ordinance subject problem The Court Chicago’s noted that central "[t]he with permissible picketing is that it describes in terms of its matter”, id., 95, p and held that: public exclusions from a carefully "[Selective forum must be scruti- picketing plainly expressive nized. Because the pickets est.” involves conduct within * * * protection of the First among Amendment discriminations governmental must be tailored to serve a substantial inter- Id., pp 98-99. might Mosley announcing per One even read se rule of invalidity: regulation slip[s] time, "The neutrality 'thus from the place, and circumstance into a concern about content.’ This is never permitted.” not, however, Id. It has been so read. Young Theatres, In 65-66; v American Mini 427 US 96 S Ct 2440; 2d 155 (1976), 49 L Ed 2d 310 reh den 429 US 97 S Ct 50 L Ed (1976), upheld the United States Court a Detroit regulating ordinance the location of movie theaters based on the displayed Stevens, content of the ing speak- films at the theaters. Justice plurality Court, for a following of the made the observations regarding Mosley decision: statement, effect, "This and others literally made, to the same read regard without for the facts-of the case in which it was would absolutely preclude any regulation expressive activity predicated part whole or in on the content of the communication. But we learned long ago that principle, broad statements of no matter how correct made, they the context in which qualified by are are sometimes contrary decisions principle before the absolute limit of the stated reached. When we adjudications review this Court’s actual in the area, First Amendment we find this to have been the case with the principle stated sive expres- there be no restriction whatever on activity because of its content.” Powell, Justice the fifth majority, join member of the Court did not that though, opinion. section of concurring opinion, Justice Stevens’ In his Mosley he also found that did not control: "Respondents mechanically would apply have us the doctrines developed in analogous other contexts. But this situation is not to involving expression public cases involving forums or to those expression or, indeed, individual any prior unique other case. The presented by calls, situation often State this ordinance as cases in this area so do, inquiry competing a careful into the concerns protected guarantee and the expression.” interests of free Id., p (emphasis supplied). 409 Mich government guarantees. Court’s concern about of ideas was central flow interference with free decision: the Court’s building politics and permit of our "To the continued culture, for each individ and to assure self-fulfillment people express any ual, guaranteed right our are thought, government censorship. The free from essence censorship, Any is content control. this forbidden of restriction on its expressive activity content because 'profound national com completely undercut would mitment public principle on issues debate ’,26 uninhibited, robust, wide-open.’ should be simply implicate not does The solicitation the Mosley. protected in the Court interests citing urged, Trainmen,28 Button,27 United It is Transportation Workers,29 and United Uni Mine equally important on,30 First Amendment regulation attorney interests involved in are rights litigation In Button the civil solicitation. political expression. itself a form of solicited was rights of

In the three the associational other cases unions, in clients, of labor were that the volved. members

apparent Here, however,

charges proposed grew out of commer solicitation cial transactions or

involving rights

not associational

political expression. speech, speaker

In commercial "does subject, philo- any cultural, wish editorialize report sophical, political. He does not wish 26Mosley, pp supra, 95-96. 27 Button, People National Ass’n for the of Colored v Advancement (1963). 415; 328; L 371 US 83 S Ct 9 Ed 405 2d 28 Bar, Virginia US Railroad v State 377 Brotherhood of Trainmen (1964). 1; 1113; 84 S Ct 12 L Ed 2d 89 29 Ass’n, 389 Bar United Mine Workers of America v Illinois State (1967). 217; 353; US 88 S Ct 19 L Ed 2d 426 30 Michigan, Transportation 401 US United v State Bar of Union (1971). 576; 1076; 91 S Ct 28 L Ed 2d 339 523 Woll v gener particular newsworthy

any fact, or to make even alized observations about commercial matt has cau United States Court ers.”31 against hasty application of First Amend tioned precedents to such It ment has also indi speech.32 in-person that cated protection solicitation merits even less

than other forms of commercial speech.33 light protection given In of the lesser to solicita Mosley require tion, we that conclude does not scrutiny” of "strict the solicitation Al statute.34 though protection First Amendment has been ex by attorneys, tended in-person some forms of solicitation a commercial context protection not accorded as a fundamental right35 trigger scrutiny and, hence, not does strict of a regulating such conduct when it has been challenged equal protection grounds. on We hold against the statute should be tested the ra- 31Virginia Pharmacy Virginia State Board Consumer Citizens Council, 748, 761; 1817; 425 US 96 S L Ct 48 Ed 2d 346 32 special speech "Because of the character of commercial and the novelty speech, protection relative of First Amendment for such we confronting challenges act with caution in First Amendment legislation legitimate regulatory economic decisions serves Our interests. dealing problems with more traditional First Amendment do See, automatically yet e.g. not extend to this as uncharted area. Ass’n, 447, 462, 20; 1912; v Ohio State Bar 436 [Ohralik US fn 98 S Ct (overbreadth (1978)] analysis applicable 56 L 2dEd not to com- speech). dealing speech mercial When with restrictions commercial 'allowing narrowly, regulation we frame our decisions modes of [of speech] might impermissible commercial in the realm of ” 11, expression.’ Rogers, supra, p noncommercial 9. fn Friedman v fn 21 33"|T]n-person professional lawyer employment by solicitation of par advertising does stand on a with truthful about the availabil- ity legal services, speech and terms of routine alone let with forms traditionally more within the concern of First Amendment.” Ass’n, 1912; 455; Ohralik Ohio State Bar 436 US 56 L S Ct (1978), Ed 2d 444 (1978). reh den 439 US S Ct Ed 2d 58 L Young Theatres, supra. See discussion of v American Mini fn 25 35Ohralik, supra. 409 Mich 500 524 relationship applicable to economic tional standard "the is whether legislation generally: inquiry to a rationally related challenged classification [is] interest”.36 legitimate state

B It is asserted that solicitation protection stan- any equal under unconstitutional special treatment because the dard capricious. We con- arbitrary claims is and rationally related to that classification is clude ad- may legitimately interests which state vance. interests turn to an identification

We first solicitation sought to be advanced statute. Ass’n, State Bar Ohralik Ohio

In 436 US (1978), L 460; 98 Ct Ed 2d S said that addi United States Court "[i]n general protecting interest consumers tion to its transactions, the State regulating and commercial maintaining for stan special responsibility bears among profess members of the licensed dards public that protection ions”.37 It continued "fraud, involving those of solicitation aspects from influence, intimidation, and overreaching, undue ” other forms of 'vexatious conduct’ a legitimate supra, Rogers, p Friedman v fn 21 17. particularly implicated case "The state in this are interests strong. general protecting and In addition its consumers interest transactions, respon- special regulating State bears commercial among maintaining licensed sibility professions. members standards "[A]ppellant legitimate and has a the State has conceded 'compelling’ preventing aspects those of solicitation indeed interest intimidation, overreaching, fraud, influence, involve undue * * * agree protection of We other forms 'vexatious conduct.’ legitimate public aspects from is a these Ass’n, pp supra, important Bar state State interest.” Ohralik Ohio 460, 462. Woll v interest.38

state The Court said that in-person solic may "provide itation presentation” a one-sided "encourage and speedy perhaps uninformed deci sionmaking” compari without "an for opportunity son or reflection” and "critical of comparison the nature, and 'availability, prices’ legal of services.”39 Court also said there a risk that the lawyer’s pecuniary self-interest will interfere with his judgment exercise of on of behalf his client.40

In Kelley Judge Detroit, of Court Recorder’s of 204, 212-213; 316; 239 Mich 214 NW 53 ALR 273 (1927), in rejecting equal protection challenge statute, to the solicitation specif- this Court did not sought ically identify the interest to be advanced by indicate, however, the statute. It did that per- sonal claims were "inviting litigation and exploitation”. Co,

Hightower v Detroit Edison 7-8; 262 Mich 247 86 (1933), NW ALR 509 subsequently listed the following with evils associated "ambulance "(1) chasing”: fomenting litigation with resultant (2) purse, burdens the courts and public subor- 38Id., p 462.

39Id., pp 457-458. lawyer engages may "A who solicitation of clients be inclined to subordinate the best of interests the client his own pecuniary unintentionally, ability lawyer’s interests. if Even legal evaluate merit of his client’s claims when falter lawyer’s might conclusion will affect the income. A valid claim quickly, pursued beyond settled too or a with of claim merit little point representation, lapses judgment any legal of reason. These can occur in say pecuniary but we cannot of that the motivation lawyer particular representation who solicits does create special problems Id., 461, p of of conflict interest.” fn 19. Hightower Co, (1933), In v Detroit Edison 262 Mich NW chasing we observed that one of the evils with ambulance associated was: "[Djefrauding action, injured persons having proper of causes of but ignorant legal rights procedure, by of and court of contracts means illegal percentages recovery charges which retain exorbitant of and expenses by quick for court and costs and settlements made for against just rights injured persons.” return of fees and of 409 Mich (3) persons mulcting perjury, innocent of nation of upon by judgments, of manufactured causes action buy testimony, perjured and settlements and (4) defrauding persons having peace, injured and ignorant legal proper action, but causes procedure, rights by means of contracts and court percentages recovery retain exorbitant illegal charges expenses for court and and costs quick return of fees settlements made and rights pers against just injured ons.”41 Supreme Court, sum, States

In the United protecting Ohralik, state identified as interests regulating consumers, commercial transactions maintaining among members of the standards Hightower, professions, Court, this licensed impact spoke of solicitation on as well judicial resulting system from defendants and drummed-up litigation. equal Hightower nor was an

Neither Ohralik challenge protection case; in was on Ohralik Hightower pre- grounds First Amendment and protec-

equal a constructional issue. While sented tion

analysis requires identify us to the state challenged sought by to interest statute, be advanced are or more since we decide that there one legitimate fur- which would be state interests challenged thered this statute and that sufficiently related to the further- classification attempt interest, each need ance of we see no particularize protection of which interest —the against overreaching by soliciting lawyers or client protection justice system of defendants and litigation in the from the fomentation of —was legislative decision. forefront Ohralik, supra, p also 461. See Woll v C question turn to the the limitation We whether personal injury sufficiently claims is to the furtherance related the state interests involved. personal injury as

We conclude claims distinguishing jus- class have characteristics which special light tify treatment in of the state interests involved. Kelley Judge

In Court, v Recorder’s Court this rejecting equal protection challenge to this concerning special statute, made observations personal injury attributes pertinent claims which are also today: exists a injuries marked difference between "[T]here person injuries

inflicted on the plainly recognizable able in law. property, and done to distinguish and reasonably fact Property, fairly personal real, whether has as some suscepti rule determinable market value proof, ble of definite within beyond limits which neither expectation range. evidence nor can Market value personal injuries damages is unknown. The measure of proof and rules of property distinctly are different in suffering, Pain cases. disfiguration, permanency, per humiliation and other foreign sonal elements to property which have no dis tinct elements of does in the minds money standard of permissible measurement are damages the latter. This and often give great expecta many rise tions and surrounds such tempting claims with a atmos phere inviting known and so actions speculation to property unknown to tort actions litigation exploitation generally proportion indicated such crowding our courts.”42 persuaded greater

We are likeli- there is hood of harm to of the client as the result 42 Kelley Judge Detroit, 204, 213; of Recorder’s Court of 239 Mich 214 NW ALR 409 Mich personal injury than of other claims injury claims, in contrast with Personal claims. litigation defense, general and civil contingent universally a fee handled almost are for the dollar value there is no fixed and basis injuries. fac- combination these The claimant’s advantage taking opportunities for tors creates the client. a a fixed dollar value allows

The absence of prom- lawyer client with to the mind of the cloud Expectations may large be created ises of awards. thereby realized, be and client that cannot exploited. prom- reality there is to the Even when gain potential ise, ab- allure of the obligation may create the sence of client financial nothing everything to lose and that there is belief entering arrangement. gain by into the to compari- may reflection and do so without client pressured may to for fear do so son. He even feel losing opportunity presented lawyer. opportunity for better a result he lose As representation. litigation general less civil are

Claimants expecta- likely exploited by to be creation they and, that cannot realized because tions obligation lawyer, generally have a financial

compare likely, defendants, are more are accepting lawyer’s proposal reflect before

representation. practice personal injury

Also characteristic of

substantially high volume of claims which has

overloading justice sys- contributed problems presents tem also for defendants system large of claims. The faced with depends upon number dispose negotiated settlement plain- puts defendants, as well as most cases and pressure tiffs, settle; defense under the cost of Woll v puts pressure on also defendants to settle. This personal injury claims, of characteristic combi- contingent encourage may fee, with nation the lawyers emphasize quantity some rather than quality representation, of to settle claims less for. prepare their than full value and trial less adequately; the absence of a fixed dollar value prevents evaluating often clients from the result detecting representation. Discourag- and ing deficient of

solicitation claims which would add to the improve repre- quality volume tend to of High contingent coupled sentation. volume with compensation lawyers fee of is not characteristic of general litigation personal injury civil defense. persuaded greater

We are also there is justice system likelihood of harm to the and defen- personal dants as result of the injury claims than of other claims. The same personal injury prac- characteristics claim high contingent volume, fee, absence tice— fixed encourage bringing of mar- standard — ginal imposition claims, and nuisance an on the justice system especially defendants, insurers deep pocket pressures defendants. The to set- impractical disposition tle make it to insist on a the merits of all such claims. Where claimant lawyer likely out seeks it is less that the claim marginal lawyer or nuisance than where

Barring seeks out the claimant. the solicitation of personal injury discourages claims fomentation litigation legiti- rationally and is related to a discouraging bringing mate state interest marginal and nuisance claims. arguing

In the risks of solicitation are not personal specific limited to claims, some points are made:

(1) depends undue influence on the circum- Mich 500 solicitation, type not on the stances prohibit does not being solicited —the claim person to approaching injured lawyer from action, damage in a property representation solicit from his recuperated who has person but a in- regarding approached not be may claim; jury

(2) possible is fomenting litigation any interest, context, bring public lawyers and who instigate actions civil and consumer class rights brought; be that would not otherwise lawsuits (3) claims, arson and such as other sorts claims, susceptible to equally are property damage brought fraudulently; being

(4) readily unwarranted settlements derivative and consumer stockholder procured actions. class litiga- if personal injury

It further claimed that is prohibition then the should distinguishable, tion is to defense as well. injury extend respond: We (absence

(1) fee contingent Because of the poten- obligation lawyer) financial to award, solicited healthy tial even a large of a make informed decision person likely is less to property claim rather than personal when a injury involved; general litigation civil damage other (2) interest, rights and The volume of civil public less than is considerably consumer class actions such ac- personal that of claims. Because injury issues, present important tions novel and often than settle. likely defendant is more defend the client large gain prospect pecuniary participation her is not the basis which his or While some such actions the action is solicited. large legal brought are a view justifying with encourage fees, policy and state federal Woll v enforcing such actions as a means of statutes practices at contrary aimed commercial and other public to the interest.

(3) damage property While claims can be brought fraudulently, the volume of such claims pressures has personal created the same to settle as persons claims; also, who have readily such claims are less found than injury claimants and the value of such claims is more certain.

(4) imposition There is little risk of on the claimant in a stockholder derivative or consumer they clog action, class do not the dockets. many sum,

In it is the coincidence of factors that distinguishes personal pointing claims; particular litigation, risks of harm in other includ- ing personal injury defense, does not render the classification irrational. provision

It contended, is also based on a Revised Judicature Act43which voids all solicited agreements, Legislature that “if the has seen fit to equal treat all forms of solicitation as in the civil arena, charged then a criminal defendant with given solicitation should be the same evenhanded treatment”. legal

While that any statute bars solicitation of business and renders contracts, solicited contin- gent or otherwise, void, it does not follow that the classification of the solicitation statute is invalid singling personal injury out the solicitation of penalties claims for the additional of a criminal Legislature properly statute. could conclude that an necessary added deterrent was to discour- age personal injury the solicitation of claims. A depends part decision to solicit on an assess- 27A.919(2). 600.919(2); MCL MSA Mich gain likely risk of loss. In most and ment of the invalidating litigation the the of threat areas of discourage the solici- sufficient to contract presence personal injury the of area In tation. the gain, high potential a volume indeterminate a single any making invalidation cases the important, fixed absence a contract less encourage might clients value which dollar representation, quality police make In less efficacious. addi- of invalidation sanction tion, hospitals injured persons are taken because most injury personal identified, claimants general readily liti- more solicited than civil are gants. claimants, in contrast with com- Also such personal litigants defendants, mercial generally legal have retained counsel. We do not Legislature properly de- could conclude that of solicited contracts was cide the invalidation special adequate deterrent and that crim- not an discourage necessary to inal disincentive was personal injury claims. disparage

played by We do not mean role we conclude bar. Still must Legislature appropriately could find prevent necessary special solici- measure was tation that field. personal injury claims bears

The limitation to

sought interests to be rational relation to state lawyers solicitation statute. The furthered protection equal in these are denied cases the law.

IV statute We turn to the contention vagueness. void for 533 vWoll challenged vagueness

A be on grounds that it impinging overbroad, —is on First Amendment freedoms, or provide

—does not fair notice of the conduct proscribed, or

—is so indefinite confers unstructured unlimited discretion the trier of fact to determine whether an offense has been committ ed.44

A challenge primary ground is on the of over- breadth.

It is asserted that prohibition against —the solicitation would al application low of the statute to activities meant to advance valid associational interests found to be protected Transportation in the United Union45 political expres and other cases46and to a form of protected sion found to In re Primus47 and

National Ass’n for the Advancement of Colored People Button, 415; 371 US 83 328; S Ct 9 L Ed (1963), 2d 405 and_ 44Grayned Rockford, 104, 108-109; 2294; 408 US 92 S Ct 33 L Ed (1972). 2d 222 Transportation Michigan, United Union v State Bar of 401 US 576; 1076; (1971), 91 S Ct 28 L Ed 2d 339 where the United States injunction Court invalidated an based on the solicitation help right statute because of the union members’ First Amendment securing legal representation. and advise each other effective argued It the UTU decision was a declaration of the invalidity. proscribing only statute’s unconstitutional cally total We read UTU as application specifi- of the statute. The Court did not constitutionality consider the of the solicitation statute. Virginia, supra; Brotherhood of Railroad Trainmen v fn 28 Ass’n, United Mine Workers of America v fn 29 Illinois State Bar

supra. Primus, In re US S Ct 56 L Ed 2d 417 500 409 Mich indirectly against "directly prohibition or —the advertising given soliciting” could reach truthful protection State Bar in Bates v First Amendment Arizona,48and of in-person

—in the context prohibition gain, pecuniary is too blanket Ohralik,49 such activities can under broad because only proscribed when done circumstances be that overreaching significant danger present or undue influence. challenge require that does not

An overbreadth challenger injured the overinclu- is show he rights rely on the the statute. He can siveness of persons may hypothetical obtain a third non-enforceability the statute’s declaration showing the conduct he himself en- that without gaged protected. constitutionally An over- in is depend challenge does not on the thus breadth factual context of It is irrelevant the case at hand. charged litigant under himself expression than or conduct different statute with overinclusively pro- those he asserts scribes. challenge permits thus

A overbreadth successful person charged speech or conduct violative with escape punishment on the based of a statute impinged upon rights First of others Amendment although prop- narrower, under a the statute speech erly punished statute, could be his or conduct drawn protected. it not so Accord- because ingly, challenge overbreadth be no answer to the would

represented the solicitations here danger overreaching significant undue influ- or to advance valid associa- ence were not meant Arizona, 2691; 350; 53 L Ed 97 S Ct v State Bar of US Bates (1977). 2d 810 Ass’n, S 56 L Bar 436 US 98 Ct Ohralik v Ohio State Ed 2d 444 Woll v political interests and were not a tional form of expression advertising. and were not truthful judicial prediction assump

It is of a "because or very tion that the statute’s existence cause others tutionally protected speech before the court to refrain from consti expression”, inquire litigant’s the Court does not whether the rights expression "own free are violated”.50 every right supports But not First Amendment challenge. an overbreadth In Bates the United Supreme States Court held that the overbreadth apply professional doctrine does not ing, "to advertis necessary it a context is where not to further objective”. its intended The Court reasoned that advertising "[s]ince to is linked commercial well- being, unlikely speech partic it seems that such is ularly susceptible being to crushed overbroad regulation”.51 Supreme

In Ohralik the United States Court lawyer declared that could not "make a suc- argument cessful overbreadth in view Bates”, Court’s observation in and said: "Commer- speech likely cial is not as to be deterred as speech, noncommercial and therefore does not re- Oklahoma, supra, pp Broadrick v fn 610-612. exception general principle The Court declared that this to the that person may applied "a constitutionally whom a statute be will not challenge heard ground may be ably that statute on the that conceiv- applied others, unconstitutionally be in other situations not rights before the Court” and that "constitutional and are may vicariously”, not be asserted area "carved out in the recognition First Amendment” "that the First Amendment needs breathing space attempting and that statutes or burden restrict rights narrowly exercise of First Amendment be must drawn and represent legislative judgment particular considered that a mode expression give way compelling society”. has to other needs of Arizona, supra, Bates p Bar of State 381. disseminating The Court added that an advertiser information product provides presumably about service that he "can deter- readily speech mine more protected”. them his truthful others whether 409 Mich 500 the over-breadth afforded protection the added

quire appro ach”.52 challenge here the overbreadth

Accordingly, rejected and Ohralik must be based on Bates has held States Court the United because application doctrine has no overbreadth that the kind those speech of involved to commercial cases. whether an over- question still leaves

This based on the challenge be advanced breadth Transpor- in United rights protected associational expression tation Union and the rights political Button. Primus protected Oklahoma, 601, 615-616; 413 US Broadrick In (1973), 2908; 37 L Ed 2d 830 the United 93 S Ct "where con Supreme Court declared States involved, duct not we believe merely speech a statute only the overbreadth of must well, real, in relation to judged but substantial (Emphasis plainly legitimate sweep”. the statute’s test, real and substantial supplied.) Applying the there pre the statute the Court concluded and that "not overbroad substantially sented was be cured may exist should whatever overbreadth the situations fact through analysis case-by-case sanctions, may not be assertedly, its applied”.53 case,

In the indicated that subsequent a Court as well pictures the of motion is conduct exhibition 462, Ass’n, supra, p 20. Bar fn Ohralik Ohio State explained unprotected the behavior "moves The Court that as expres- speech’ if 'pure and from toward conduct that conduct —even scope that criminal laws sive—falls within the of otherwise valid maintaining comprehensive legitimate con- reflect interests in state conduct”, harmful, constitutionally unprotected func- the trols over predic- uncertain tion of the overbreadth "attenuates”. The doctrine speech protected broadly "may the deter tion that worded statute Court, give point, way said the some unknown extent” must at some against “enforcing conduct that to the admittedly interest in state’s proscribe.” (Emphasis supplied.) power within its Woll v speech. It concluded that the deterrent effect of prohibiting showing an ordinance of films containing nudity a drive-in movie theater public its when screen is visible from street or place substantial”, "both real and that was void for the statute overbreadth.54 Recently, challenge rejecting in to the consti tutionality zoning theaters, of an ordinance adult emphasized the Court still another factor in decid ing challenge that the overbreadth was insubstan exception tial. Court said that to the standing” "justified by "traditional rules of overriding importance maintaining free (Em open interchange market for the of ideas". phasis supplied.) It concluded the ordinance "significant would not have a deterrent on effect protected by the exhibition films the First Amendment”. It said that there is "a vital less interest the uninhibited exhibition of material pornography that is the borderline between expression artistic than in free dissemination political significance”. ideas social and This was not "the kind of threat free market expression justifies exceptional ideas and approach adjudication recog to constitutional nized” some of its earlier cases.55 protected The associational activities in United Jacksonville, 205, 216; Erznoznik v 422 US 45 L S Ct Ed 2d 125 55Young Theatres, pp supra, American Mini 61. For the reasons accompanying stated in the text and "the because uncertainty susceptible easily limited amount of of a in the ordinances is narrowing construction” the Court "we think this is an said inappropriate adjudicate hypothetical case in which to claims of persons Finally, not before the Court Court”. declared that an "exhibitor’s doubts as to whether a film shown in borderline theater, presentations, his as well inas theaters licensed for adult [did the kind of threat free involve] to the market in ideas and expression justifies exceptional approach to constitutional adjudication recognized” in some of its earlier cases. 409 Mich political Transportation form of and the Union protected expression and Button in Primus involve speech of cli- solicitation conduct as well ents, —the solicita- kind conduct the same regulate. tion seeks obliged Accordingly the over- are assess we test substantial enunci- real and breadth in Broadrick. ated to the view that the are inclined

We represent threat "the kind of statute does expression justi- free market ideas the fies the exceptional approach to constitutional ad- recognized” judication in some of the decisions States Court. the United Transportation in United That Court’s decision holding injunction on this that an based Union very unconstitutional, and solicitation statute principle here involved that "the its observation case”,56 to the facts of this makes cannot be limited unlikely any highly union would be det engaging found there in the activities erred from protected. to be

imagine a in which strain to case

One must prosecuting from an acci- based claim political expression dent would be a form of protected in Primus and Button. kind appears chal- therefore that the overbreadth It Transportation lenges Union, on United based Primus,

Button are not real and substantial. holding place however, not, on that do our We

ground.

B Any statute can of the solicitation overbreadth limiting cured construction._ Michigan, fn Transportation Union v State Bar of United supra, p 585. 539 Woll v Supreme

In Broadrick the United States Court "[application that of the said overbreadth doctrine strong manifestly, is, in this manner medicine. It employed by sparingly has been the Court only as a last resort. Facial overbreadth has. limiting invoked when a been construction has placed challenged been could on the statute.” (Emphasis supplied.)57 unpersuaded by argument

We are limiting placed construction should not be on the rewriting solicitation statute because so much necessary intruding would be that we would be legislative function. Our construction does not rewriting but, rather, involve ceptions a statement of ex- prohibi-

to the statute’s otherwise blanket power Legis- tions. It is no intrusion on the engraft exceptions prohibition lature to to a broad Legislature’s when no violence is done to exceptions central intent and when without such the statute must fall. analogous People

We find this case v Bricker prosecuted Bricker, .58 under criminal abor prosecution ground statute,59 tion resisted on the although prohibited the statute all abortions Supreme the United States Court had held that prohibit the state could not abortions in certain circumstances.60 We said we are bound to preserve constitutionality of statutes con possible, prior struction, if and that constructions

controlling. are not We concluded that a construc

legislative tion consistent with the intent could be

applied:_ 57 Oklahoma, supra, p v Broadrick 613. 58People Bricker, 524; (1973). 389 Mich 208 172 NW2d 59 750.14; MCL MSA 28.204. 60 Wade, 113; 705; (1973); Roe v 410 L US 93 S Ct 35 Ed 2d 147 Doe Bolton, 179; 739; 410 US S93 Ct 35 L 201 Ed 2d 409 Mich prohibit- Legislature adopted the statutes ’’When no little or reason

ing there was most abortions constitutionality. The medical and other their question United States Su- influenced the developments which Wade, 113; S Roe 410 US preme to decide [v Court Bolton, and Doe (1973)] [v 705; 35 2d Ct US were far ahead. L Ed (1973)] it did 35 L Ed 2d 201 Ct 93 S ^{[*] [*] [*]} legislation is clear purpose this "The central required except those prohibit all abortions enough —to the health of the mother. preserve exceptions. They other properly can requires now Court preserve to their constitution- the statutes read into ality. ^{[*] [*] [*]} policy of this state light public "In of the declared [to changed re circumstances and the prosecute abortion] doctrine eluci constitutional sulting from the federal Doe, penal 14 of the in Roe we construe § dated code mean not shall prohibition of this section to the 'miscarriages’ by pregnant authorized a apply to the of his attending physician in exercise woman’s medical judgment; effectuation of the decision the however, judgment; physician’s left to the abort also viability miscarriage after may not physician cause judgment, his necessary, in medical except where preserve the life (Emphasis mother.” or health of the supplied.)61 statute, there was

So, too, with the solicitation constitutionality question its little or no reason exceptions, inception.62 but the It admitted of no at Bricker, People supra, pp 529-530. v 341; The People Neumeyer, 275 NW2d 230 Cf. 405 Mich v present here. The is not the Court that case issue that divided Court’s not case, by was power, proper construction in a to save a statute dissenting questioned by Justices. the Legislature having the for set fault For this reason we cannot Reese, 214; L23 large” v 92 US in United States "too net. The statute (1875), Ed 563 ab initio. void applies can be suggestion construction whenever the The that Reese Woll Supreme requires United States Court now some be made. opinion protection

Earlier in this we identified against overreaching by lawyers the client protection and the justice system

of defendants litigation possible legis- from fomentation of as purposes lative of the solicitation statute. The exception engraft which we now onto the statute requirements to meet Supreme of the United States purposes. Court is consonant with both We construe the solicitation statute to mean accomplished only "adding simplistic. words” to statute is See, also, Bricker "added words” to statute. United States v Harriss, (1954) 612; 808; (adding 347 US 74 S Ct L98 Ed 989 qualification the applied only statute, requiring registration expenditures purpose influencing passage legislation, any or defeat of congressmen); to direct communication with United Congress 106; Organizations, States v of Industrial 335 US 68 S Ct (1948) (statute prohibiting making any 92 L Ed 1849 union from expenditure inapplicable in connection with an election held money spent publishing endorsements). organ political union house that contained York, 507, 514; In v New US Winters 68 S Ct (1948), Appeals 92 L Ed 840 York New Court of had construed a punishing possession state statute criminal of written material devoted to applicable only of lust deeds stories and bloodshed as massing way the crimes that such stories such a as to incite the reader to against person. The United States Court held interpretation by Appeals puts the Court of “[t]he these words in definitely legisla- as if it had been so amended (Emphasis supplied.) ture.” situation Marchetti United States, 39, 59-60; (1968), 390 US S L 88 Ct 19 Ed 2d 889 was altogether different: imposition directly preclude of "[T]he use-restrictions would effectu- significant Congress’ purposes adopting ation of a element of in the wagering necessarily Moreover, imposition taxes. the of such would restrictions oblige prosecuting state in authorities to establish each with by case information obtained as a federal any that their evidence was untainted connection taxes; consequence wagering of the the requirements protected only would thus be at the cost of hampering, perhaps seriously, prohibitions of enforcement state against gambling. Congress We cannot know how assess the would competing treasury gambling demands of the federal and of state prohibitions; however, entirely we are certain that the Constitution Court, Congress, striking has entrusted to and not to the of this task appropriate among an balance such We impose values. therefore must decide improper that it would be for the Court to of the restrictions urged by supplied.) (Emphasis kind the United States.” 409 Mich only prohibition applies to solicitations its

that which pecuni primarily the to advance are done ary lawyer inor whose a who solicits interest of is committed.63 interest solicitation 438, Primus, supra, p Supreme In re fn 47 in Court observed The speaker 32, purpose is not "[n]ormally of the the or motive fn central distinction "expression” protection, it bear on the but does Amendment to First aspect of is 'an associational conduct between ’ * * * plenary regulation activity subject to and other * * * Ass’n, [supra], the by government. v State Bar In Ohralik engaged activity lawyer for the advancement not in associational was ideas; purpose the advancement his own his of beliefs line, part the on the motive of The based interests. commercial always expressive activity, speaker will not of the and the character * * * avoiding draw, easy for the under but that is no reason to be omitted.) (Citations taking.” reading is text based our announced the limitation designed and is States Court decisions of the United remove protected prohibition of statute those activities from the the through by of cases. the Button Primus line object bringing of the solicitation the lawsuit which the If the political expression, is, lawyer organization, a for or his form purpose primary is not the advancement then of it. interest, apply pecuniary lawyer’s so the statute would legal operates Similarly, an association a bona Bde assistance where program, resulting solicitations sure done advance or referral or its interests of that association First Amendment associational the members, pecuniary primarily lawyer’s not done advance a and therefore are participates interests; attorney Bde in a bona who program First sort shares the association’s Amendment of this participates solely pecuni- personally protection his own even if he gain. ary organization ultimately purpose unifying of an Even if interests, legal pecuniary programs of its members’ advancement See, e.g., beyond sponsors be United the reach of statute. still Automobile, Union, Agricultural Aerospace & International Legal Right National to Work Implement Workers America v Foundation, Inc, App 590 F2d 192 US DC Defense & Educational (1978) Foundation, (Right sponsors litigation to Work represent against Foundation contrib- members unions that union utor’s organization). legal independent employees may aid still a bona Bde however, apply, would association The statute " nothing actually than an sham to cover what is more 'is mere * * * attempt’ against 20 group attorneys rule to evade a valid state Primus, supra, p pecuniary fn gain”. In re solicitation for (citations omitted). right their to work for Union members have a First Amendment protection, of a this the activities mutual aid union and because of acting and attor- liaison between union members official 543 Woll v C The here cannot contend that lawyers seriously have fair they did not notice statute’s we find Bricker Again, proscription.64 controlling. in defendant that case was not a physician therefore the Roe and Doe65 abortion decisions no gave protection his conduct. His conduct legitimately punished, could be he had ade quate Legislature notice that had chosen to it. punish His conviction therefore affirmed.66 People v on Dempster67 Reliance is misplaced. case That concerned construction of the words in paper” "commercial the Uniform Securities Act.68 We paper exemption read commercial light of purpose Act, the Uniform Securities exemption and concluded that applied to a smaller class documents than encompassed by the definition of paper” "commercial 3-805 § the Uniform held, Commercial Code. We though, this new construction could have prospective application only, saying: able,

"This Court is not within the bounds of due neys scope chosen the union are within the statute even performed. if the official is so remunerated services United Trans- portation Union, supra. fn 45 But the activities of all those who can point to necessarily beyond affiliation with a labor union are not pecuniary statute’s reach: where the official’s involvement over- so representative whelms his properly role as union that he be can agent solely attorney union, termed an not of the claims rights might based pretext. First Amendment associational dismissed 64 rejected properly The trial court the claim that the is so poorly utterly incomprehensible drafted that it is to a man of reason- intelligence. able 65 60, supra. fn See People Howell, 16, 24-29; (1976), 66 In 396 Mich 238 NW2d we antedating previously affirmed a conviction for acts construction of a vague allege statute. Defendants in Howell also could not vagueness adequate resulted lack of notice. People Dempster, 396 Mich 242 NW2d 381 19.776(101) seq.; seq. MCL et 451.501 MSA et 409 Mich statute which contains 'interpret’ a criminal process, to exemption that it results convic ambiguous such an tion of the defendant is not the 'fair ion.”69 That charged specific case. warning’ by Constitut demanded operates on retrospective application That the bar there issue of "fair notice” when is an only is Freund, The made the Court’s citation of clear Liberties, 4 L Vand Rev Supreme Court Civil (1951):70 533, 541 inadequate is vagueness twofold: objection "The regulated, is guidance the individual whose conduct to guidance the triers of inadequate to fact. by a retrospectively could not be cured objection

former court, appellate ruling though might tive of the trial court either for the future an authorita- be cured supplied.) judicial gloss.” (Emphasis issue, not an notice” is retroactive Where "fair application permitted.71 is

D however, find, rights process due We do limiting construction would be violated unless supra, p People Dempster, 715. 70See, also, York, pp supra, fn "We Winters v New 514-515: defendant, acted, chargeable with the time he was assume that the knowledge at scope subsequent interpretation.” where a The United States Court has indicated that limiting placed on a to eliminate overbreadth construction statute applied retrospectively occurring may be to conduct before the the Pfister, limiting added. See Dombrowski v construction was 479, (1965); 491, 7; 1116; 85 S Ct 14 L Ed 2d 22 United States US fn 363, Thirty-Seven Photographs, 28 L fn 91 S Ct 402 US Ed 2d 822 applied separate question retroac- It is a a statute whether give proscription tively still notice its when it fails fair limiting question applied so where a another construction is whether it can be overbreadth, added, but eliminate to cure indefiniteness. Woll v prosecution. applied It before was noted at species vagueness outset are three there challenges.72 rejected have claim We this give statute, construction, even absent fails to proscribed.. adequate notice of the conduct We challenge, have also held that the overbreadth upon Transportation based United extent Un Button, ion and Primus and failed because limiting place construction we on the statute. No limiting necessary construction address the challenge overbreadth based Bates and Ohralik apply because overbreadth doctrine does not speech. commercial making limiting

Nonetheless, construction, expressly inapplicable pro- to activities by necessary pre- Ohralik, tected Bates and due-process right vent violation of a akin to that protects application one from of a law so indefinite that it confers unstructured and unlim- ited discretion the trier of fact determine whether an offense has committed. been prosecution proceed

If were to without benefit of limiting person might construction, a a con- be victed acts within the literal terms of the by cannot, statute which reason of proscribed. Ohralik, Bates be Unless trier apprised limiting of tion, has fact been of the construc- properly it cannot that said either its finding assessment of the evidence or its was guided by such construction. Birmingham73

In Shuttlesworth the United Supreme States Court reversed based a conviction prohibiting persons standing on an ordinance from way on a sidewalk in such a as to free obstruct 72 44, supra, accompanying See fn text. 73 Birmingham, Shuttlesworth v S Ct Ed 2d 382 US 15 L 409 Mich standing passage, after on a sidewalk or from having requested any police by officer to been written, suffered from move on. As an obvious constitutional defect.74 the ordinance

The Alabama Supreme subsequently ordi construed the Court showing require always the ac nance that passage. The States cused free United blocked although that, the ordi Court concluded construed, unconstitutional as nance was not reversed: defendant’s conviction should be event, any present "In the trial in the case was court guidance any appellate from state court as without meaning of the ordinance. findings made of fact and ren "The trial court no appears, all opinion. dered no For court petitioner guilty only by applying have found the literal —and unconstitutional —terms of the ordinance. * * * say are unable to Alabama Because we petitioner judge case did not courts unconstitutional titioner’s this ordinance, pe construction of under 1142 cannot stand.”75 conviction § applied in Ashton Kent Shuttlesworth ucky.76 The defendant was convicted common- judge charged law criminal libel. trial publication any the writing offense is committed “calculated create disturbances read, therefore, "Literally part says of this ordinance second only person may public Birmingham that the whim of so broad government at stand on sidewalk police any city. vice of officer of that The constitutional provision provide for no It 'does needs demonstration. laws, government by clearly defined but rather opinions policeman on his Cox v moment-to-moment of a beat.’ (1965)] Louisiana, 536, 453; 13 L Ed 471 379 US 579 S Ct 2d [85 Black). ever-present (separate opinion of Mr. Justice Instinct with its liberties, potential arbitrarily suppressing that for- Amendment First police kind of law hallmark state.” Shuttlesworth bears the Birmingham, supra, pp 90-91. 75Id., p 92. 1407; 195; Kentucky, 2d 469 Ashton v 384 US 86 S Ct 16 L Ed Woll v corrupt public peace, any morals, or lead to act, which, done, when The Ken- indictable”. tucky Appeals conviction, Court of affirmed the publication but redefined the crime as of a defama- tory falsehood, malice; with it ruled that criminal predicated liability could not be on a breach of peace. Reversing conviction, the United States propo- Court cited Shuttlesworth for the sition that

"where an accused is tried and convictedunder a broad construction of an act which would make it unconstitu appeal by tional, the conviction cannot be sustained on limiting construction which eliminates the unconsti place act, tutional features of the as the trial took under the unconstitutional construction the act.”77 might

In addition to the risk that a defendant finding engaged convicted without a that he prohibited conduct there is the risk that a belated deprive oppor construction a defendant of an tunity to out make a valid defense.78 charging

The indictment Posner and Keane with merely violation of the solicitation statute states grand jury’s gives conclusion, and no indica- grand jury tion of the nature of the activities the probable found cause to believe had occurred. For appears, grand jury may only all that have they engaged found conduct, albeit within scope the literal statute, too innocuous to prohibit consistent with Ohralik. We believe that the concerns voiced in Shuttlesworth and Ashton

77Id., p 198. any shifting "In underlying charge, case the theories conviction, appeal, and the decision on as to leave considerable doubt precise Royal’s proof legal nature of offense and of the arguments might Royal have been able to establish innocence." Superior Hampshire, Rockingham County, Court of New 531 F2d (CA 1, 1976), cert den 429 US 97 S Ct 50 L Ed 2d (1976) (emphasis supplied). 500 Mich being prevent from forced to and Keane Posner having grand jury found trial without a stand probable statute, a violation cause believe reason, the in construed, For this occurred.79 as prejudice quashed, without must be dictment con of the statute as on the basis reindictment strued. charges conspiracy I indictment of Woll’s

Count personal injury II claims and Count to solicit personal charges claims. The paragraph Count I describes some activi second particularity; activity so all the described ties with compensa of workers’ centers on the solicitation application that have held tion claims. We compensation to workers’ statute the solicitation prospective only. extent, all, if at To the will be the solicitation of non- indictment concerns personal compensation claims it workers’ give any of the nature of fails to indication also probable grand jury cause found the activities should Woll’s indictment to believe occurred. again preju dismissed, without therefore also non- for the solicitation of to reindictment dice compensation injury claims.80 workers’ 1979) (D DC, Conlon, (giving Supp 481 F Cf. United States dismissing preju- indictment without statute narrow construction and reindictment). also, Cf., Royal, supra, p 1088: "And while the dice narrowing might danger on to others be cured construction arrest, prosecution appeal, Royal’s the unfairness of standardless (Emphasis supplied.) is thus trial could not.” not The Ashton rationale findings of to the trier’s fact. limited say that a under a statute whose 80 This not subsequently conviction People vagueness appeal never stand. In cured can gross Howell, supra, convicted of fn 66 defendant Helzer was gross indecency” indecency. unconstitu We "act of held vague tionally gave the trier of fact excessive discretion affirming was committed. Prior decisions determine whether crime for acts identical to those with convictions under defendants were their conduct was charged provided with fair notice that defendants proscribed. term We construed the therefore prohibiting specific only nonethe certain acts. Helzer’s conviction was certainty jury say less we able to with affirmed because were Woll v

E sought declaratory judgment Woll and the seeking General counterclaimed a limit- ing parties construction the statute. The limited argument invalidity, their to the issue of facial question did not address of how the stat- properly argument ute should be read should that fail. provide only partial

At this time we can a limiting Bates, construction. Because of we hold apply the solicitation statute does not advertising by lawyer. truthful Supreme The United States Court held Ohra- in-person pecuniary gain lik that solicitation for prohibited prophylactic could be as a measure in circumstances in which there is a risk of over- reaching, influence, undue or other evils. implication holding of the Court’s is that punished

such solicitation cannot be unless oc- presenting curs circumstances such risks. The committing specifically proscribed convicted Helzer for one of the acts. The United States Court could not be so assured in Birmingham, supra, p Shuttlesworth v 92: "Upon him, judge the evidence before the trial as finder of the facts might easily petitioner have determined that had created an obstruction, tively tion, subsequently might but had moved on. The court alterna- petitioner have found that the himself had created no obstruc- simply disobeyed Byars’ but had Patrolman instruction to move on. In either circumstance the literal terms of the ordinance would apply; in applicable neither circumstance would the ordinance be as Appeals.” now construed the Alabama Court of Although offending publication part of the record in Kentucky, supra, Ashton v jury there was no assurance that defamatory found it of merely likely to be rather than to cause a breach peace. (CA Thompson Gaffney, 1976), Cf. 540 F2d 251 den cert 1078; (1977), 960; 429 US 97 S Ct 50 L Ed 2d 798 reh den 430 US (1977) (saving S Ct 51 L disorderly Ed 2d 811 construction of conviction; years corpus conduct ordinance came three after habeas transcript court, presumption denied because trial was not before so regularity prevented finding charged judge improperly that trial jury). 409 Mich 500 can be then, task, to define what circumstances may present that the state risks of the evils said legitimately attempt to avoid. prophy previously have

We determined prohibit broad as to measure cannot be so lactic lawyer In State for remuneration. all (On Jaques Rem Grievance Administrator Bar and),81 approach directly potential

Jaques did instead, clients; he was found to have asked a his services to others. union official to recommend disciplinary reach that the rule could not We held in that situation there was conduct because such no danger overreaching. significant might allowing prohi still read Ohralik potential all with clients communications bition by acting lawyer solely him, or someone proscription.82 be too broad but even this example, Consider, for a runner who distributes might pro say that cards. One Ohralik business potential client has such conduct because the tects calling lawyer. opportunity to reflect before overreaching

hand, of the other there is a risk On

representations undue influence —untrue and might by some runner. risk that made might might representations runners make untrue thought justify of on the distribution be business ban prophylactic

cards as measure. scope The determination the allowable regulation light not be should state Ohralik briefing argument. made without benefit of and We against and Posner

—dismiss the indictments prejudice reindictment, Keane without and 81 (On Remand), Jaques State Bar Administrator Grievance (1979). 26; 281 Mich NW2d 469 Comment, Scope Regula- Attorney See Solicitation: The of State 144, Ohralik, L 165-166 After 12 U Mich J Reform tion Primus and Woll v Appeals

—remand cause to the Court of Woll’s with the direction that it modify judgment court consistent opinion the circuit with this and argument briefing proper for limiting Posner, construction the solicitation statute. Keane, the State Bar and appropriate other inter- briefs amicus ested shall be allowed to file persons curiae Appeals. the Court of costs, question. a public

No C.J., Coleman, Kavanagh, Williams, Fitz- JJ., gerald, Ryan, Moody, Jr., and Blair con- J. Levin, with curred Rehearing

Order on Motion for 22, December Court, order On a motion rehearing filed defendant is Attorney General treated as a motion for clarification of this Court’s opinion and and, order of treated, October so granted. hereby It the Court’s intent that only I Counts and II of the against plaintiff indictment Woll are to be dismissed and that remaining counts the indictment are unaffected this opinion Court’s and order.

Case Details

Case Name: Woll v. Attorney General

Court Name: Michigan Supreme Court

Date Published: Oct 3, 1980

Citation: 297 N.W.2d 578

Docket Number: Docket Nos. 61257, 60809, 60810. (Calendar Nos. 7, 8)

Court Abbreviation: Mich.