People v. Pinkney

501 Mich. 259

912 N.W.2d 535

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Edward PINKNEY, Defendant-Appellant.

No. 154374

Supreme Court of Michigan.

Argued on application for leave to appeal November 7, 2017

Filed May 1, 2018

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Michael J. Sepic, Prosecuting Attorney, and Aaron J. Mead, Assistant Prosecuting Attorney, for the people.

Timothy M. Holloway for defendant.

Richard D. Friedman, Mark P. Fancher, and Michael J. Steinberg, amicus curiae, for the American Civil Liberties Union of Michigan.

BEFORE THE ENTIRE BENCH (except Clement, J.)

Viviano, J.

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

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