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People v. Bruce

Supreme Court of Michigan

July 25, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
TERENCE MITCHELL BRUCE, Defendant-Appellee. PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
STANLEY LYLE NICHOLSON, Defendant-Appellee.

          Argued March 6, 2019 (Calendar No. 1).

         Syllabus

         Terence M. Bruce and Stanley L. Nicholson were convicted following jury trials in the Jackson Circuit Court, Thomas D. Wilson, J., of common-law misconduct in office. Defendants were federal border patrol agents assigned to a Hometown Security Team (HST) task force that included Michigan State Police troopers, border patrol agents, and other officers operating in Jackson County. Defendants had been assigned to ensure perimeter security around a home during the execution of a search warrant and to help search the home and remove confiscated evidence. The task force kept a tabulation of items seized, but defendants took additional property not included on the tabulation. Defendant Nicholson took an antique thermometer and barometer device, insisting that it was junk, and he accidentally ruined the device when he took it home to clean it. Defendant Bruce took a wheeled stool with a leather seat home with him, but he returned it to the police department when asked about it. Defendants were charged with common-law misconduct in office as well as larceny in a building. Defendants moved for directed verdicts, arguing that they were not public officers for purposes of the misconduct-in-office offense. The court denied the motions, and the jury convicted defendants of misconduct in office but acquitted them of larceny in a building. Defendants appealed. In an unpublished per curiam opinion issued on October 5, 2017 (Docket Nos. 331232 and 331233), the Court of Appeals, Servitto, P.J., and Murray, J. (Borrello, J., dissenting), held that defendants were not public officers and vacated the convictions. The prosecution sought leave to appeal in the Supreme Court, and the Supreme Court granted the application. 501 Mich. 1026 (2018).

         In an opinion by Justice Cavanagh, joined by Justices Markman, Zahra, and Bernstein, the Supreme Court held:

         Misconduct in office is corrupt behavior by an officer in the exercise of the duties of his or her office or while acting under color of his or her office. To determine whether a position constitutes a public office, a court considers five factors: (1) the position must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; and (5) it must have some permanency and continuity, and not be only temporary or occasional. Oath and bond requirements are also of assistance in determining whether a defendant is a public officer. Together, these factors are referred to as the Coutu factors.[1] In this case, the central problem was how to categorize defendants for purposes of applying the factors-as border patrol agents or as federal agent HST members enforcing Michigan law. The relevant office to analyze must be determined by which duties defendants were exercising and the color of office under which defendants were acting. Defendants in this case were functioning as federal agent HST members enforcing Michigan law, and application of the Coutu factors showed that defendants, as federal agent members of the HST enforcing Michigan law, were public officers for purposes of the common-law offense of misconduct in office. The first factor was satisfied under MCL 764.15d, which provides that federal law enforcement officers may enforce state law to the same extent as a state or local officer when they are authorized under federal law with arrest powers and to carry a firearm and when they are participating in a joint investigation with a state or local law enforcement agency or acting pursuant to the request of local law enforcement. Defendants operated under the authority of MCL 764.15d in assisting with the execution of the warrant; therefore, the Legislature created defendants' positions. The second factor was satisfied because police officers discharging their duties act for the state in its sovereign capacity, so defendants possessed power delegated by the Legislature that was exercised for the benefit of the public. The third factor was satisfied because under MCL 764.15d, authorized officers may enforce state law to the same extent as a state or local officer and are granted the privileges and immunities of a peace officer of the state. MCL 764.15d also described the officers' duties to be discharged; in this case, the duties of defendants were the obligations of the HST and other duties authorized officers may have under MCL 764.15d. The fourth factor was satisfied because defendants were empowered to act only insofar as they were participating in a joint investigation or acting at the request of state officers; they were under the general control of the HST. The permanence requirement of the fifth factor was satisfied because the statutory delegation of the state's police power to qualifying federal agents used by defendants has been codified since 1999, the HST is an ongoing invocation of the delegated authority, and defendants were on long-term assignments. The additional factor of whether a defendant has taken an oath was not dispositive; that factor is merely used to assist with the determination. However, because federal law enforcement officers take oaths to defend the federal Constitution, MCL 764.15d(1) contemplates an oath as well. Although the parties disagreed about whether all the factors had to be established as elements, or only considered as factors, the disagreement did not need to be resolved because all the factors supported the conclusion that the defendants in this case were public officers. Accordingly, as federal agent HST members enforcing Michigan law, defendants were public officers for purposes of the offense of misconduct in office.

         Reversed and remanded to the Court of Appeals.

         Chief Justice McCormack, dissenting, would have exercised restraint in defining the common-law crime because bedrock principles of fairness demand that a defendant have fair notice of criminal liability, because changing the scope of criminal liability is a role best left to the Legislature, and because expanding the definition of "public officer" in this case causes future uncertainty instead of resolving it. There was no reason to expand this particular common-law crime to restrain conduct like the defendants' when other already-defined crimes exist and when defendants' conduct could have exposed them to civil liability, sanctions for violating federal ethics regulations, or adverse employment consequences. Accordingly, Chief Justice McCormack would have held that the defendants in this case were not public officers for purposes of the common-law offense of misconduct in office. "Public office" is not defined as a mere grant of power; rather, it requires the give and take between authority and obligation-the officer holds the power of the state because the officer needs it to carry out his or her duties. In this case, defendants' duties derived from federal law. Under MCL 764.15d, federal agents receive, like a gift from the state, all the rights and immunities of Michigan peace officers, but they are not obligated to do anything in return. And a grant of power without undertaking a corresponding duty is merely a privilege. Because defendants had the privilege of enforcing state law but lacked the duty to do so, defendants did not hold "public office." Accordingly, Chief Justice McCormack would have affirmed.

         Justice Viviano, dissenting, would have held that the prosecution did not meet its burden of establishing that defendants were public officers for purposes of the offense of misconduct in office because Coutu elements 1, 3, 4, and 5 were not established and because defendants were not required to take an oath as HST members, which Justice Viviano would hold is also requisite to a finding that the position is a public office. Each of the Coutu elements must be established before a court may conclude that a position constitutes a public office for purposes of a misconduct in office charge. The first Coutu element was not met because there is no statute providing for the creation of HSTs, much less authorizing the Michigan State Police to appoint anyone to such a body. While the majority cited MCL 764.15d, that statute does not create a position on any particular task force or outline the duties of task force members, how they are appointed, or their tenure in office. The third element was not met because while the "powers conferred" on federal law enforcement officers working on joint investigations or task forces were defined by the Legislature in MCL 764.15d, the "duties to be discharged" were not defined in MCL 764.15d. The majority's analysis simply conflates statutory authority to perform certain tasks with a statutory duty to do so. MCL 764.15d was intended to allow federal law enforcement officers to enforce Michigan law to the same extent as a state or local officer, but only in limited circumstances and for limited purposes; MCL 764.15d does not purport to create a new office or to prescribe the duties of any such office. The fourth element was not met because MCL 764.15d does not provide for the appointment of members to a joint investigation or task force, create a command structure, or describe how any such joint investigation or task force will be administered. The fifth element was not met because MCL 764.15d does not create a permanent position on any particular task force or outline the duties of a task force member or how a member is appointed. Additionally, a task force is not, by its nature, a permanent or continuing entity; instead, it is organized and implemented to solve a specific problem. Finally, Supreme Court precedent has indicated that an oath is a necessary prerequisite to a finding that a person is a public officer for purposes of the charge of misconduct in office. Defendants were not required to take an oath, and MCL 764.15d, the statute that authorized them to enforce state law, makes no reference to an oath. Accordingly, Justice Viviano would have affirmed.

         Justice Clement, dissenting, would have held that defendants did not hold "public office" under the test articulated in Coutu because defendants' positions as federal agents and as members of the task force were not created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature. Accordingly, Justice Clement would have affirmed.

          Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh Chief Justice: Bridget M. McCormack Chief Justice Pro Tem: David F. Viviano

         BEFORE THE ENTIRE BENCH

          OPINION

          CAVANAGH, J.

         In these consolidated cases we consider whether defendants, who were federal border patrol agents operating as part of a joint task force enforcing Michigan law, are public officers for purposes of the common-law offense of misconduct in office. The crux of this question is how to categorize their offices-solely as border patrol agents or as federal agent task force members enforcing Michigan law. We hold that the categorization depends on the duties exercised by defendants and the color of office under which defendants acted. In these cases, because defendants exercised duties of enforcement of Michigan law and acted under authority granted to them by Michigan statute, they acted as public officers. Accordingly, we reverse the Court of Appeals and remand to that Court for consideration of defendants' remaining issues.

         I. FACTS AND PROCEDURAL HISTORY

         Defendants, Terence Bruce and Stanley Nicholson, were federal border patrol agents assigned to a Hometown Security Team (HST) task force operating in Jackson County in December 2014. The HST is a "criminal intervention team" assigned mostly to freeways and that focuses on drugs and firearms. At the time, the HST consisted of Michigan State Police troopers, border patrol agents, and other officers.

         Defendants were "embedded" with the HST, meaning that they did not have other duty assignments; they worked with the HST every shift. They took orders from superiors in the HST, and defendant Nicholson testified that he considered himself to have "peace officer status," that he adopted the authority of the HST, and that he participated in the law enforcement duties the HST performed. If the HST executed a search warrant, defendants took part.

         On the evening of December 23, 2014, an HST patrol unit consisting of a Michigan State Police trooper and a border patrol agent executed a traffic stop against Benjamin Scott. The trooper searched Scott's car and found marijuana trimmings and proof of his residency. The investigation then incorporated another task force, the Jackson Narcotics Enforcement Team (JNET). HST and JNET obtained a search warrant for two residences Scott was renting and held a joint briefing to prepare to execute the warrant.

         Defendants attended the briefing, which addressed team member assignments for the raid and contingencies such as where to retreat if shots were fired and which hospital to use if necessary. Defendants were assigned to ensure perimeter security during the initial entry and then to help search the homes and remove confiscated evidence. HST and JNET made entry and spent most of the evening and early morning disassembling and removing an elaborate marijuana-growing operation from the basements of the homes. The task forces seized grow lights, ballasts, netting, and marijuana plants. A careful tabulation was kept of every item taken that noted whether it was evidence of a crime or subject to forfeiture as proceeds of a crime. But defendants took additional property not included on the tabulation.

         Defendant Nicholson took an antique thermometer and barometer device. He said that it was rusty and dirty, and he insisted that "it really was junk" when he removed it but that he intended to clean it up. According to defendant Nicholson, he took the device to his workshop where he tried to clean the lens with a rotary tool, but he accidentally burrowed through, making the device useless. After ruining the device, he discarded it and "gave it no other thought, it was trash." But it had not been trash to Scott. The device had been given to Scott by his grandfather, who had received it from his father. It was a family heirloom.

         Defendant Bruce took a wheeled stool with a leather seat home with him and kept it until he was asked about it by the HST team leader. When asked, Bruce admitted that he took the stool. He then returned it to the Michigan State Police post in Jackson.

         Defendants were charged with common-law misconduct in office as well as larceny in a building. Each moved for pretrial dismissal and midtrial directed verdicts, arguing that they were not public officers for purposes of the misconduct-in-office offense. The trial court denied the motions for pretrial dismissal and midtrial directed verdicts in both cases. Ultimately the jury convicted defendants of misconduct in office but acquitted them of larceny in a building.

         Defendants appealed and challenged their convictions on multiple grounds, including that they were not public officers for purposes of the misconduct-in-office offense. The Court of Appeals agreed that defendants were not public officers and vacated the convictions. People v. Bruce, unpublished per curiam opinion of the Court of Appeals, issued October 5, 2017 (Docket Nos. 331232 and 331233). The prosecution sought leave to appeal in this Court, and we granted the application to address "whether the defendant federal border patrol agents were 'public officers' for purposes of the common-law crime of misconduct in office when they assisted-as members of a law enforcement task force that included Michigan State Police and Michigan motor carrier officers-in the execution of a search warrant." People v. Bruce, 501 Mich. 1026, 1026 (2018).

         II. STANDARD OF REVIEW

         Whether defendants are public officers is a question of law that we review de novo. People v. Coutu, 459 Mich. 348, 353; 589 N.W.2d 458 (1999). Interpretation and application of statutes are also questions of law that we review de novo. Id.

         III. ANALYSIS

         Often, appellate consideration of the common-law offense of misconduct in office has been a vertical inquiry into whether a defendant's status was more than that of an "employee," to the point of becoming a "public officer." Defendants argue that although they were executing a search warrant as HST team members, their status as border patrol agents makes this a horizontal problem that allows them to escape sideways from the common-law responsibilities at issue. We hold that the proper perspective of defendants' offices is determined by the duties they exercised and the color of office under which they acted. From that perspective, we see that defendants were public officers.

         The idea that people who wield the power of the state are required to do so responsibly is not new. More than 20 years ago we observed that the common law describes the offense of misconduct in office as" 'corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.'" Coutu, 459 Mich. at 354, quoting Perkins & Boyce, Criminal Law (3d ed), p 543. Public officers had been held accountable under the offense long before, [1] and public officers in Michigan have continued to be held accountable under the offense since.[2]

         In Coutu, 459 Mich. 348, we considered the question whether a deputy sheriff is a public officer. There, we built on the foundation of People v. Freedland, 308 Mich. 449; 14 N.W.2d 62 (1944), in constructing our understanding of who qualifies as an officer. Freedland had considered many authorities, including State v. Hawkins, 79 Mont 506; 257 P 411, 418 (1927), which defined "public office of a civil nature" for purposes of Montana's constitutional prohibition on legislators holding multiple positions. The Hawkins court concluded that "five elements are indispensable" in any such office:

(1) It must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature;
(2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. [Id.]

Freedland quoted these five factors, among other considerations. Freedland, 308 Mich. at 457-458. Coutu noted these same factors and also added that oath and bond requirements are "of assistance" in determining whether a defendant is a public officer. Coutu, 459 Mich. at 355. The parties in this matter agree that Coutu identifies the relevant factors.[3]

         The central problem of this case is how to categorize defendants for purposes of the Coutu analysis. Should we view defendants solely as border patrol agents or as federal agent HST members enforcing Michigan law? Again, defendants were charged with" 'corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office.'" Id. at 354, quoting Perkins & Boyce, p 543. The relevant office to analyze must be determined by which duties defendants were exercising and the color of office under which defendants were acting.

         In some ways the categorization problem here is similar to that in People v. Perkins, 468 Mich. 448; 662 N.W.2d 727 (2003). In Perkins, the defendant was a deputy sheriff who was prosecuted for acts arising from his sexual relationship with a 16-year-old girl. Id. at 450. The charged offenses included misconduct in office. Id. at 449. By then we had already decided that a deputy sheriff was a public officer for purposes of the offense. Id. at 457, citing Coutu, 459 Mich. at 357-358. But in Perkins we held that because there was "no evidence correlating that conduct with defendant's public office," there was no "nexus between defendant's alleged conduct and defendant's status as a sheriff's deputy." Id. at 457-458. Said another way, although the defendant was a public officer in another context, he was not acting under the color of that office when he allegedly committed the offense.

         Defendants have not argued that they were off duty from the HST or at Scott's home solely as border patrol agents. Nor have defendants argued that they were enforcing a federal statute or acting under their power as border patrol agents. There is no dispute that defendants were at Scott's home as federal agent HST members authorized to assist in the execution of the search warrant under MCL 764.15d. Under this section, under certain circumstances, federal law enforcement officers may "enforce state law to the same extent as a state or local officer," MCL 764.15d(1), and enjoy all the "privileges and immunities of a peace officer of this state," MCL 764.15d(2).[4] Defendants were functioning as federal agent HST members enforcing Michigan law, and that is the relevant perspective under Coutu. See Bruce (Borrello, J., dissenting), unpub op at 3.

         Application of the Coutu factors shows that defendants, as federal agent members of the HST enforcing Michigan law, are public officers for purposes of the common-law offense of misconduct in office.[5] The first factor is satisfied by MCL 764.15d. As described earlier, the Legislature provided for positions, such as those defendants held with the HST, in which federal law enforcement officers "may enforce state law to the same extent as a state or local officer . . . ." MCL 764.15d(1). Federal law enforcement officers are vested with this authority if they are authorized under federal law with arrest powers and to carry a firearm, MCL 764.15d(1)(a) and (b), and when they are participating in a joint investigation with a state or local law enforcement agency or acting pursuant to the request of local law enforcement, MCL 764.15d(1)(c)(iii) and (iv). Defendants acknowledged at oral argument that they were operating under the authority of MCL 764.15d in assisting with the execution of the warrant. But for this statute, there would be no federal law enforcement officers who have authority to participate in these types of investigations. The Legislature created their positions, which authorized them to be in

         Scott's home.[6]

         Analysis of the second factor is similar to that of Coutu's analysis of deputy sheriffs because defendants were empowered to "enforce state law to the same extent as a state or local officer . . . ." MCL 764.15d(1). The second factor is satisfied because police officers discharging their duties act for the state in its sovereign capacity, Coutu, 459 Mich. at 355, citing Tzatzken v. Detroit, 226 Mich. 603, 608; 198 N.W. 214 (1924), so necessarily defendants, who were empowered to "enforce state law to the same extent as a state or local officer," MCL 764.15d(1), possessed power delegated by the Legislature that was exercised for the benefit of the public.

         The third factor is also satisfied. Again, in Coutu we stated that" 'the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority[.]'" Coutu, 459 Mich. at 354, quoting Freedland, 308 Mich. at 458. Authorized officers "may enforce state law to the same extent as a state or local officer," MCL 764.15d(1), and they are granted the "privileges and immunities of a peace officer of this state," MCL 764.15d(2). That defendants were vested with broad "powers" is obvious enough. MCL 764.15d also directly or impliedly describes their "duties." A "duty" is commonly understood to be "something that one is expected or required to do by moral or legal obligation." Random House Webster's College Dictionary (2001). In Coutu, we held that this factor was satisfied because "the Legislature defined in part the powers and duties of deputy sheriffs," citing MCL 51.75, MCL 51.76(2), and MCL 51.221. Coutu, 459 Mich. at 355. To the extent that those statutes impose obligations, they impose them on the sheriff and the department, but not on any particular deputy.[7] Additionally, MCL 51.221 states that a deputy "may serve or execute civil or criminal process issued by a court of this state, and have and exercise all the powers and duties of constables." (Emphasis added.) In Coutu, we held that a deputy's duties were the obligations of the sheriff, MCL 51.75, the obligations of the sheriff's department, MCL 51.76(2), and other duties a deputy may have, MCL 51.221. Coutu, 459 Mich. at 355. We see little difference in this case, in which the duties of defendants were the obligations of the HST, MCL 764.15d(1)(c)(iii) and (iv), and other duties authorized officers may have, MCL 764.15d(1) ("A federal law enforcement officer may enforce state law to the same extent as a state or local officer . . . .").[8]

         The fourth factor is also comparable to Coutu. There, we reasoned that although deputy sheriffs do not operate without a superior control other than the law, they are under the control of the sheriff, a "superior officer." Coutu, 459 Mich. at 355. In this case, the situation is much the same. Defendants were operating under MCL 764.15d(1)(c)(iii) and (iv), so they were empowered to act only insofar as they were participating in a joint investigation or acting at the request of state officers. They were under the general control of the HST. Defendant Nicholson testified that border patrol agents embedded in the HST deferred to the knowledge and expertise of the Michigan State Police troopers, followed their lead, and took orders from them.[9]

         The permanence requirement of the fifth factor is satisfied from multiple perspectives. First, the statutory delegation of the state's police power to qualifying federal agents used by defendants has been codified since 1999. 1999 PA 64. There is nothing "temporary or occasional" about the delegation. We think that almost 20 years of delegated authority easily crosses the threshold of "some permanency and continuity." Second, the HST is an ongoing invocation of the delegated authority. The record does not reveal precisely when the HST was established, but the team leader, a Michigan State Police sergeant, had led the team continuously from December 2012 until this trial in September 2015. Therefore, we know that the team was in operation for nearly three years. Third, defendants were on long-term assignments, being "embedded" with the HST. Defendants did not have any other duty assignments. They worked with the HST every shift. Accordingly, there was permanency and continuity to defendants' assignmen t to the H ST.[10]

         Lastly, we note that whether a defendant has taken an oath is "of assistance" in this determination.[11] Coutu, 459 Mich. at 355. The delegation of the state's police power used by these defendants, MCL 764.15d, is not available to everyone. Rather, the delegation may only be used by a "federal law enforcement officer." MCL 764.15d(1). Because federal law enforcement officers take oaths to defend the federal Constitution, MCL 764.15d(1) contemplates an oath as well. At any rate, this factor is not dispositive. Under Coutu, defendants are public officers.

         The Court of Appeals majority concluded that the relevant perspective was that defendants were mere border patrol agents and then observed that the authority that allowed defendants to enforce Michigan law had no bearing on the authority that created the border patrol. Bruce, unpub op at 4. This same argument is offered by defendants, who assert that the position of federal border patrol agent was created by Congress, not the Michigan Constitution or Michigan Legislature. For further support, defendants point out that MCL 15.181(e) defines "public officer" in a way that does not allow for creation of such a public office by Congress. These arguments all err in that they focus on defendants' status as mere border patrol agents rather than on their status as federal agent HST members enforcing Michigan law.[12] If defendants had been operating only as federal border patrol agents, the body which created that position would be relevant. But it was because they were federal agent HST members and because they were enforcing Michigan law that they were in Scott's home. That makes their authority to enforce Michigan law-and their status as federal agent HST members-the relevant perspective.

         Defendants also argue that they were not "law enforcement officer[s]" as defined by MCL 28.602(l).[13] Whether defendants were state law enforcement officers as defined by MCL 28.602(l) has no relevance as to whether they were federal law enforcement officers for purposes of MCL 764.15d.[14] Defendants conceded during oral argument that they were federal law enforcement officers and that they were acting under the authority of MCL 764.15d.

         Finally, defendants argue that MCL 764.15d only governs when federal law enforcement officers can make an arrest for violation of a Michigan state law offense, rather than being a general grant of police powers. The plain language of MCL 764.15d reveals that its scope is significantly broader than defendants suggest. The statute gives federal law enforcement officers the power to "enforce state law to the same extent as a state or local officer," MCL 764.15d(1), and states that federal law enforcement officers enjoy all the "privileges and immunities of a peace officer of this state," MCL 764.15d(2), under certain circumstances. Moreover, we look to the language of the statute to ascertain its meaning; while statutory titles and headings are "useful navigational aids," they "should never be allowed to override the plain words of a text." Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), pp 221-222. See People v. Jaboro, 76 Mich.App. 8, 11; 258 N.W.2d 60 (1977) (" 'The title cannot control the plain words of the statute.' "), quoting 2A Sutherland, Statutory Construction (4th ed), § 47.03, pp 72-73.[15] This same principle regarding statutory titles and headings can be applied to the chapter titles within the statute. Accordingly, while MCL 764.15d is codified within Chapter IV of the Code of Criminal Procedure, which is entitled "Arrest," we look to the language of the statute for its meaning rather than the title of the chapter. At any rate, the relevant analysis is whether defendants satisfied Coutu through their invocation of MCL 764.15d. As discussed earlier, they did.

         IV. CONCLUSION

         We conclude that defendants are public officers, as federal agent HST members enforcing Michigan law, for purposes of the offense of misconduct in office. Accordingly, we reverse the decision of the Court of Appeals and remand to that Court for consideration of defendants' remaining arguments.

          Megan K. Cavanagh Stephen J. Markman Brian K. Zahra Richard H. Bernstein

          McCormack, C.J. (dissenting).

         I respectfully dissent. I share Justice VIVIANO's concerns about the need for restraint in defining common-law crime. Not just because bedrock principles of fairness demand that a defendant have fair notice of criminal liability, but because changing the scope of criminal liability is a role best left to the Legislature and, perhaps most importantly, because expanding the definition of "public officer" causes future uncertainty rather than resolving it.

         I'm not concerned that these defendants suffered unfair surprise. An ordinary, law-abiding citizen in the defendants' position would have known that taking something that doesn't belong to him might be a crime. But I see no reason for us to expand this particular common-law crime to restrain conduct like the defendants' when other already-defined crimes (or noncriminal consequences) will do the job. For example, the defendants were charged with (but acquitted of) larceny in a building. And their conduct could have exposed them to civil liability, sanctions for violating federal ethics regulations, [1] or adverse employment consequences. Although it feels perfectly intuitive to extend the definition of a public officer under the specific facts of this case, that seemingly intuitive principle may have downstream consequences-an overinclusive, indefinite rule "broadcasts to the law-enforcement community a potent message: the limits of official coercion are not fixed; the suggestion box is always open. The result is that lawmaking devolves to law enforcement, and police and prosecutors are invited to play too large a role in deciding what to punish." Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va L Rev 189, 223 (1985). These concerns are only heightened when criminal liability stems from a common-law crime rather than a statute.

         We can largely avoid these hazards by applying settled law to facts. And I would conclude that under our caselaw, the defendants were not public officers for purposes of the common-law offense of misconduct in office. To convict a defendant of common-law misconduct in office, the prosecution must establish that the defendant (1) is a public officer (2) who engaged in corrupt behavior (3) in the exercise of the duties of his office or while acting under color of his office. People v. Coutu, 459 Mich. 348, 354; 589 N.W.2d 458 (1999). At common law, misconduct could entail malfeasance, misfeasance, or nonfeasance. People v. Perkins, 468 Mich. 448, 456; 662 N.W.2d 727 (2003). But nonfeasance has been codified as a misdemeanor. See MCL 750.478 ("When any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, constitutes a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1, 000.00."). And MCL 750.505 provides a catchall provision for "any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state . . . ." (Emphasis added.) Thus, only theories of misfeasance and malfeasance remain as common-law crimes. Misconduct under these theories (in contrast to nonfeasance) is also the most susceptible to existing criminal and noncriminal consequences.

         It is only the first element that causes disagreement-whether the defendant border patrol agents were public officers. The question isn't whether they are public officers in the abstract or public officers under federal law, but whether they are public officers for this court-defined Michigan crime. And the parties agree that Coutu, 459 Mich. at 354, states the relevant test for distinguishing between public officers and mere employees. The prosecution's theory is that the defendant border patrol agents hold "public office" because the Legislature, in effect, deputized certain federal law enforcement officers by authorizing them to enforce the laws of the state and vesting them with the privileges and immunities enjoyed by Michigan peace officers. MCL 764.15d. This theory is appealing-Michigan entrusted these border patrol agents with a sliver of the sovereign power of government, and they abused the public trust by using their privilege to commit misconduct.

         But we have not defined "public office" as a mere grant of power. Rather, it requires the give and take between authority and obligation-the officer holds the power of the state because she needs it to carry out her duties. Under MCL 764.15d, federal agents receive, like a gift from the state, all the rights and immunities of Michigan peace officers, but they are not obligated to do anything in return. And a grant of power without undertaking a corresponding duty is merely a privilege. This distinguishes the position created by MCL 764.15d from the position of deputy sheriff in Coutu. There, the Legislature specifically authorized the sheriff to appoint deputies. MCL 51.70 ("Each sheriff may appoint 1 or more deputy sheriffs at the sheriff's pleasure, and may revoke those appointments at any time."). And it enacted other statutes specifically defining the duties of the sheriff or sheriff's department. E.g., MCL 51.75 and 51.76; MCL 51.221. Without a similar statute that "define[s], directly or impliedly," some set of "duties to be discharged" under MCL 764.15d, I conclude that the third element of the Coutu test is not met.

         The parties dispute whether the test described in Coutu was an all-or-nothing set of elements or a flexible totality-of-the-circumstances standard. But I would end the analysis here under either standard. Even under the more flexible approach, I find that the lack of affirmative duty conveyed by law is fatal. And without a duty, several other elements fail in cascade.

         In sum, the border patrol agents here had the privilege of enforcing state law but no duty to do so. Their duties derived from federal law. And their relationship with Michigan law enforcement was one of mutual agreement, not law. Thus, I cannot conclude that they held "public office" as Coutu used that term. And because I conclude that the lack of duty is fatal, I would affirm.

          Viviano, J. (dissenting).

         Just last term, in a unanimous opinion, our Court reaffirmed our longstanding 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.'" People v. Pinkney, 501 Mich. 259, 268; 912 N.W.2d 535 (2018), quoting People v. Ellis, 204 Mich. 157, 161; 169 N.W. 930 (1918). Because the majority's rendering of the parameters of ...


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