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People v. Pinkney

Supreme Court of Michigan

May 1, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
EDWARD PINKNEY, Defendant-Appellant.

          Argued on application for leave to appeal November 7, 2017.

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Syllabus

         Edward Pinkney was charged in Berrien County with five felony counts of election forgery under MCL 168.937 and six misdemeanor counts of making a false statement in a certificate-of-recall petition under MCL 168.957 for having submitted petitions with falsified dates in connection with an effort to recall the mayor of Benton Harbor. After defendant was bound over to the Berrien Circuit Court for trial, he moved to quash the charges, arguing that MCL 168.937 was a penalty provision and not a substantive, chargeable offense. The court, Sterling R. Schrock, J., denied the motion. Defendant was convicted following a jury trial in the Berrien Circuit Court of all five counts of election forgery but acquitted of all six counts of making a false statement in a certificate-of-recall petition. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 30 to 120 months. The Court of Appeals, O'Brien, P.J., and K. F. Kelly and Fort Hood, JJ., upheld defendant's convictions, holding that MCL 168.937 created the substantive offense of election-law forgery. 316 Mich.App. 450 (2016). Defendant applied for leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other peremptory action. 500 Mich. 990 (2017).

         In a unanimous opinion by Justice Viviano, the Supreme Court, in lieu of granting leave to appeal, held:

         MCL 168.937, by its plain language, is only a penalty provision; it does not set forth a substantive offense. As a result, defendant was not properly charged under that provision with the substantive offense of election-law forgery. Therefore, his convictions must be vacated and the charges dismissed.

         1. MCL 168.937 provides that any person found guilty of forgery under the provisions of the Election Law, MCL 168.1 et seq., shall, unless otherwise provided, be punished by a fine not exceeding $1, 000, or by imprisonment in the state prison for a term not exceeding 5 years, or by both such fine and imprisonment in the discretion of the court. Nothing in the plain language of § 937 suggests that the Legislature intended it to be a chargeable offense; instead, the language indicates that it provides the penalty for the crime of forgery enumerated elsewhere in the Election Law. Section 937 does not set forth or describe any conduct that is prohibited, and the Legislature's use of the past tense verb "found" presupposes that an individual has already been convicted of the crime of forgery under the Election Law. Consequently, by its clear terms, the provision does nothing more than provide the punishment for that already-committed offense. A review of the surrounding provisions further indicates that § 937 does not create a chargeable offense, but is instead one of a series of penalty provisions for offenses delineated elsewhere in the Election Law.

         2. The statutory text of MCL 168.937 contains no evidence that the Legislature intended to incorporate the common-law definition of forgery when the previous version of § 937 was first enacted or when it was recodified. The term "forgery" is not used to describe a type of conduct that is prohibited. Instead, it describes the punishment for someone who has already committed the crime of forgery. In other statutes that have been found to codify a common-law crime, the commission of the common-law crime itself is the subject of the statute, which generally expressly criminalizes the crime; the common-law term is simply a shorthand for how the crime is committed. By contrast, the subject of MCL 168.937 is an individual found guilty of a crime, and § 937 itself merely prescribes the punishment for such an individual; it does not mention the commission of forgery or state that a person who forges is guilty of a crime. Simply plugging the common-law definition of "forgery" into § 937 does not transform the provision into a substantive offense. While the common law can provide the definition of "forgery, " the common law cannot supply the elements of "forgery under the provisions of this act"; rather, a reasonable person would believe that "forgery under the provisions of this act" suggests that one could only be found guilty of a forgery crime defined elsewhere under the Election Law.

         3. The statutory history of the Election Law provides further support for the conclusion that MCL 168.937 is a penalty provision. For more than 80 years, the only statute in Michigan criminalizing election-related forgery was narrowly drawn to prohibit falsification of a "register of electors" (later called a "registration book"). In this statute, the Legislature confusingly combined two offenses in one statute: the first was labeled "larceny, " and the second was labeled "forgery." The penalty for these crimes was included at the end of the section, making both crimes felonies. Notably, the statute was designed to protect a document that was in the custody of election officials. In 1917, the Legislature made two changes to this statute that are of note: it dropped the "larceny" label from the first grouping of prohibited conduct and instead provided that a person who violated that clause "shall be deemed guilty of a felony, " and it deleted the penalty provision from the statute defining these substantive offenses and created a separate penalty provision for the crime of election-related forgery. The latter provision was nearly identical to § 937, the present-day penalty provision at issue in this case. In 1948, these provisions were recodified as 1948 CL 195.8 and 1948 CL 198.3, respectively. During a rewrite of the Election Law in 1954, the Legislature enacted MCL 168.932(c), which essentially combined the two offenses from 1948 CL 195.8 into one. But MCL 168.932(c) explicitly focused on the actions of election officials and those who have custody of election records. In addition, instead of applying only to a registration book or copy thereof filed for preservation like its predecessor, the new offense was expanded to cover any record, election list of voters, affidavit, return, statement of votes, certificates, poll book, or of any paper, document, or vote of any description, which pursuant to this act is directed to be made, filed, or preserved. Finally, the new statute dropped the reference to "forgery, " presumably because the newly combined statute also included some of the former so-called "larceny" activities. The statute also made it clear that a person who violates § 932(c) is guilty of a felony. This obviated the need for § 937, given that the general felony penalty provision, § 935, applies as the penalty provision. Despite these changes, however, the 1954 amendments recodified 1948 CL 198.3 as MCL 168.937. Thus, in 1954 the Legislature retained the forgery penalty as the new § 937, but the Legislature omitted the only provision in the Election Law to which that penalty pertained. At the same time, the Legislature enacted yet another statute, MCL 168.957, with potential applicability to the conduct at issue in this case. The Legislature also recodified a provision making it unlawful to affix a forged name to an initiative or referendum petition, MCL 168.484. Finally, in 1995, the Legislature added another narrow forgery offense to the Election Law, MCL 168.759(8), which provides that a person who forges a signature on an absent voter ballot application is guilty of a felony. It would be unreasonable to conclude that the Legislature would have made these changes if it considered § 937 an omnibus forgery offense covering all election-related documents, and it would also be unreasonable to conclude that the Legislature would have chosen to create such a vast and far-reaching offense out of an existing penalty provision by making no substantive changes to its language.

         4. Generally, courts must give effect to every word, phrase, and clause of a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory. However, the canon against surplusage is not an absolute rule. Rather, it assists only when a competing interpretation gives effect to every clause and word of a statute. In this case, construing MCL 168.937 as creating the separate offense of forgery would appear to render all or part of two other statutory provisions surplusage. Both MCL 168.932(c) and MCL 168.759(8) prohibit forgery of certain Election Law documents. Section 932(c), in particular, prohibits forgery of an expansive list of documents by certain election officials or other persons having custody of such documents. Had the Legislature intended § 937 to be a general forgery provision prohibiting forgery of any document in the Election Law, there would have been no need to include two other forgery provisions describing how forgery is committed. Therefore, reading § 937 as creating a substantive offense of forgery renders all or part of §§ 932(c) and 759(8) surplusage. Furthermore, using the surplusage canon-or any rule of construction-to create a criminal offense is impermissible.

         Court of Appeals' judgment reversed; case remanded to the trial court for further proceedings.

          OPINION

          VIVIANO, JUDGE.

         The issue in this case is whether defendant can be convicted of election-law forgery under MCL 168.937. The Court of Appeals upheld defendant's convictions under that provision, holding that MCL 168.937 creates the substantive offense of election-law forgery. We disagree and hold that MCL 168.937 is nothing more than a penalty provision-it does not create a substantive offense. Because defendant cannot be convicted under a statute that does not set forth a crime, we reverse and remand for further proceedings not inconsistent with this opinion.

         I. FACTS AND PROCEDURAL HISTORY

         Between November 2013 and January 2014, Edward Pinkney participated in a recall effort against the mayor of Benton Harbor, James Hightower. In order to force a recall election, defendant Pinkney needed to obtain 393 signatures on petitions supporting the recall. Defendant had a 60-day window within which to collect the required number of signatures.[1] On January 8, 2014, defendant presented the Berrien County Clerk's office with 62 petitions containing 728 signatures supporting the recall election. The clerk's office certified 402 of these signatures and scheduled the recall election.

         Prior to the election, the clerk's office transferred the petitions to the Berrien County Sheriff's Department for examination of perceived irregularities in the signatures on the petitions. After reviewing the petitions, the sheriff's department identified several signatures for which the dates appeared to have been altered. The Michigan State Police Crime Laboratory also examined the petitions and confirmed that five of the petitions contained signatures with altered dates. In each case, the dates had been altered so as to fall within the 60-day window for valid signatures.

         Defendant was charged with five counts of election-law forgery under MCL 168.937 and six counts of making a false statement in a certificate-of-recall petition under MCL 168.957. After being bound over to the Berrien Circuit Court on these charges, defendant filed a motion to quash arguing, inter alia, that § 937 is a penalty provision, not a substantive, chargeable offense. The circuit court denied the motion to quash, and the case proceeded to trial. After an eight-day trial, the jury returned verdicts of guilty on the five felony counts and not guilty on the six misdemeanor counts. In a motion for a directed verdict, defendant again argued that § 937 is a penalty provision and not a substantive offense. The circuit court denied the motion and sentenced defendant to concurrent prison terms of 30 to 120 months.

         On appeal, defendant argued, among other things, that § 937 does not create a substantive offense and that the admission of certain evidence under MRE 404(b) was improper and requires reversal.[2] The Court of Appeals unanimously upheld defendant's convictions.[3] Regarding § 937, the Court of Appeals held that the statute does create the substantive offense of election-law forgery.[4] In reaching this conclusion, the panel relied heavily on the reasoning of People v Hall, [5] which considered the same issue.

         The Court of Appeals in Hall concluded that § 937 created a substantive offense for two reasons. First, the Court explained that interpreting § 937 as a penalty provision would render it surplusage because another provision, MCL 168.935, [6] already sets forth an identical penalty for felonies under the Michigan Election Law, MCL 168.1 et seq.[7]Second, the Court reasoned that interpreting § 937 as a penalty provision would contravene the Legislature's intent in enacting the Election Law, which the Court described as "ensur[ing] the fairness and purity of the election process in part by proscribing misconduct that would foster such unfairness and impurity."[8] Based on this reasoning, the Hall Court determined that § 937 creates a substantive offense and is not merely a penalty provision.[9]

         The Court of Appeals in the present case adopted the Hall panel's reasoning and again held that § 937 constitutes a substantive offense.[10] The Court further noted that interpreting § 937 solely as a penalty provision would create an absurd result.[11] The Court explained:

[U]nder defendant's interpretation of MCL 168.937, only "[a]n inspector of election, clerk, or other officer or person having custody of any record, election list of voters, affidavit, return, statement of votes, certificates, poll book, or of any paper, document, or vote of any description, " MCL 168.932(c), or "[a] person who is not involved in the counting of ballots as provided by law and who has possession of an absent voter ballot mailed or delivered to another person, " MCL 168.932(e), could be guilty of election forgery. There is simply nothing-express, implied, or otherwise-in the Michigan Election Law to support the idea that the Legislature intended such a peculiar result. People v Stephan, 241 Mich.App. 482, 503; 616 N.W.2d 188 (2000) (explaining that this Court will not read anything into a statute that is "not plainly expressed" by the Legislature). Furthermore, interpreting MCL 168.937 in that manner, that is, as only a penalty provision, would create an absurd result by permitting individuals who do not meet the definitions set forth in MCL 168.932 to commit common-law forgery in the election process without recourse under the Michigan Election Law. People v Lewis, 302 Mich.App. 338, 341-342; 839 N.W.2d 37 (2013), quoting People v Tennyson, 487 Mich. 730, 741; 790 N.W.2d 354 (2010) (" 'Statutes must be construed to prevent absurd results.' ").[12]

         The Court concluded that it could not interpret § 937 in a way that would render the provision surplusage and create such an absurd result.[13]

         The panel went on to reject defendant's arguments that § 937 violates the vagueness doctrine and the rule of lenity.[14] The statute is not unconstitutionally vague, the panel explained, because it can be clearly understood by reference to the common-law definition of forgery. Similarly, the panel concluded that the statute does not implicate the rule of lenity because it is not ambiguous.[15]

         Defendant has now sought leave to appeal in this Court. We scheduled oral argument on the application, directing the parties to address:

(1) whether the trial court abused its discretion when it admitted evidence under MRE 404(b) that related to the defendant's political and community activities other than the mayoral recall effort for the purpose of showing the defendant's motive to commit the instant crimes, and (2) whether the Court of Appeals erred in determining that MCL 168.937 creates the substantive offense of election forgery and is not merely a penalty provision for the specific forgery offenses set forth in other provisions of the Michigan election law.[16]

         II. STANDARD OF REVIEW

         This Court reviews questions of statutory interpretation de novo.[17]

         III. ANALYSIS

         It has long been our rule that "[a] criminal statute ought to be so plain and unambiguous that 'he who runs' may read, and understand whether his conduct is in violation of its provisions."[18] In this case, after reviewing the plain language of § 937, together with its context and history, we are convinced that § 937 does not create a substantive crime. Instead, it is an inoperative penalty provision. We reach this unusual conclusion for the reasons that follow.

         A. ANALYSIS OF MCL 168.937

         When interpreting a statute, "our goal is to give effect to the Legislature's intent, focusing first on the statute's plain language."[19] "In so doing, we examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme."[20] "When a statute's language is unambiguous, . . . the statute must be enforced as written. No further judicial construction is required or permitted."[21]

         The prosecution charged defendant with six counts of violating § 937, which reads:

Any person found guilty of forgery under the provisions of this act shall, unless herein otherwise provided, be punished by a fine not exceeding $1, 000.00, or by imprisonment in the state prison for a term not exceeding 5 years, or by both such fine and imprisonment in the discretion of the court.

         Contrary to the Court of Appeals' conclusion that § 937 clearly sets forth the offense of forgery under the Election Law, nothing in the plain language of § 937 suggests that the Legislature intended it to be a chargeable offense. Instead, as defendant argued below, it reads like a penalty provision-i.e., a provision providing the penalty for the crime of forgery enumerated elsewhere in the Election Law. Section 937 does not set forth or describe any conduct that is prohibited. Instead, the Legislature's use of the past tense verb "found" (in the phrase "found guilty of forgery under the provisions of this act") presupposes that an individual has already been convicted of the crime of forgery under the Election Law. Consequently, by its clear terms, the provision does nothing more than provide the punishment for that already-committed offense.[22]

         A review of its surrounding provisions further indicates that § 937 does not create a chargeable offense, but is instead one of a series of penalty provisions for offenses delineated elsewhere in the Election Law. The three sections of the Election Law immediately preceding § 937 provide as follows:

Any person who shall be found guilty of a misdemeanor under the provisions of this act shall, unless herein otherwise provided, be punished by a fine of not exceeding $500.00, or by imprisonment in the county jail for a term not exceeding 90 days, or both such fine and imprisonment in the discretion of the court.[23]
Any person found guilty of a felony under the provisions of this act shall, unless herein otherwise provided, be punished by a fine not exceeding $1, 000.00, or by imprisonment in the state prison for a term not exceeding 5 years, or by both such fine and imprisonment in the discretion of the court.[24]
Any person found guilty of perjury under the provisions of this act shall, unless herein otherwise provided, be punished by a fine not exceeding $1, 000.00, or by imprisonment in the state prison for a term not exceeding 5 years, or by both such fine and imprisonment in the discretion of the court.[25]

         One treatise describes these provisions, along with § 937, as "penalties for offenses where no other penalty is provided by the Act[.]"[26]

         Certainly, no one would suggest that § 934 and § 935 create chargeable offenses for misdemeanors and felonies under the Election Law. Instead, they merely define the punishment for misdemeanor and felony offenses under the Election Law, where no penalty is "otherwise provided." Section 937 is nearly identical to §§ 934 and 935, except for the use of the word "forgery" in place of "misdemeanor" and "felony, " respectively, thereby leaving no room to distinguish the provisions.

         Section 936 is most akin to § 937, in that it specifies a penalty for a recognized type of crime-"perjury" rather than "forgery." Yet the Legislature described how an individual commits "perjury" in MCL 168.933, which reads:

A person who makes a false affidavit or swears falsely while under oath under section 848 or for the purpose of securing registration, for the purpose of voting at an election, or for the purpose of qualifying as a candidate for elective office under section 558 is guilty of perjury.

         The only reasonable reading of these two provisions is that the Legislature intended § 933 to be the substantive offense of perjury and § 936 to set forth the punishment for a conviction of perjury under the Election Law. And, since it contains language nearly identical to § 936, it would be exceedingly odd to assume that the Legislature intended § 937 to operate not as a penalty provision like § 936, but as a provision creating the substantive offense of forgery under the Election Law. In short, the plain language of § 937, in context with its surrounding provisions in the Election Law, strongly indicates that it is only a penalty provision.

         In reaching the contrary conclusion, the Court of Appeals erred by first looking to the purpose of the Election Law instead of focusing on its plain language.[27] After noting that the purpose of the Election Law is "to regulate primaries and elections, provide for the 'purity' of the election process, and guard against abuse, " the Court summarily concluded that interpreting § 937 as a substantive offense would further that purpose.[28]The Court then made the rather remarkable assertion that it would be "peculiar" or "absurd" if someone could only be found guilty of election-related forgery if they engaged in conduct specifically prohibited by two other statutory subsections, MCL 168.932(c) and (e).[29] However, "[t]he Court of Appeals' reliance on the perceived purpose of the statute runs counter to the rule of statutory construction directing us to discern legislative intent from plain statutory ...


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