People of Michigan v. Lonnie James Arnold ( 2021 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
PEOPLE v ARNOLD
Docket No. 160046. Argued March 3, 2021 (Calendar No. 1). Decided July 28, 2021.
Lonnie J. Arnold was convicted following a jury trial of aggravated indecent exposure,
MCL 750.335a(2)(b), and indecent exposure by a sexually delinquent person, MCL
750.335a(2)(c). He was sentenced by the Monroe Circuit Court, Michael A. Weipert, J., as a
fourth-offense habitual offender to 25 to 70 years in prison for indecent exposure by a sexually
delinquent person; his sentence for aggravated indecent exposure was later set aside. At
sentencing, Arnold argued that MCL 750.335a(2)(c) required a sentence of “1 day to life” as
provided in the statute, but the trial court stated that it was prohibited from imposing a sentence
with a minimum penalty of a term of years and a maximum penalty of life. The court’s minimum
sentence of 25 years was calculated to fit within the sentencing guidelines range. Arnold appealed
his sentence. The case eventually made its way to the Supreme Court, which held that the “1 day
to life” sentence for indecent exposure as a sexually delinquent person in MCL 750.335a(2)(c) was
an alternative to the other sentences provided in MCL 750.335a and was not modifiable. People
v Arnold, 502 Mich 438 (2018) (Arnold I). The Supreme Court remanded the case to the Court of
Appeals to resolve the effect of the sentencing guidelines on the sentencing scheme for sexually
delinquent persons in MCL 750.335a(2)(c). On remand, the Court of Appeals, GLEICHER, P.J.,
MURRAY, C.J., and CAVANAGH, J., concluded that the sentencing guidelines provide another
sentencing alternative for persons convicted of indecent exposure as sexual delinquents.
Accordingly, a sentencing court can sentence such defendants to either “1 day to life” or to a
sentence premised on the guidelines. Because the trial court was not aware of this range of
sentencing options, the Court of Appeals vacated Arnold’s sentence and remanded to the trial court
for resentencing. 328 Mich App 592 (2019). Arnold sought leave to appeal in the Supreme Court,
and the Court granted his application for leave to appeal. 505 Mich 1001 (2020).
In an opinion by Justice VIVIANO, joined by Justices ZAHRA, BERNSTEIN, and WELCH, the
Supreme Court held:
MCL 750.335a prohibits indecent exposure and aggravated indecent exposure, establishes
penalties for those offenses, and establishes an alternative sentence that is available when a
defendant commits one of those offenses while being a sexually delinquent person. In Arnold I,
the Supreme Court interpreted the statute to allow a defendant convicted of an indecent-exposure
offense as a sexually delinquent person to be sentenced to either a nonmodifiable sentence of “1
day to life” under MCL 750.335a(2)(c) or to the appropriate penalty in MCL 750.335a(2)(a) or
(b). Under MCL 777.16q of the sentencing guidelines, MCL 750.335a(2)(c) is a Class A felony
punishable by a statutory maximum sentence of life imprisonment. The guidelines grid for Class
A felonies at MCL 777.62 lays out a range of possible minimum sentences for term-of-years
sentences, depending on how the guidelines are scored, in contrast to the “1 day to life” sentence
in MCL 750.335a(2)(c). MCL 777.16q and MCL 777.62 thus appear to allow for sentences that
clash with the “1 day to life” sentence in MCL 750.335a(2)(c). This apparent conflict required a
determination of whether the guidelines create a substantive-penalty provision for MCL
750.335a(2)(c) that authorizes the courts to impose that penalty to the exclusion of the penalty in
MCL 750.335a(2)(c). The guidelines do not purport to trump the substantive penalties in the
statutes that establish the criminal offense; rather, in MCL 769.34(2)(a), the Legislature has
subordinated the guidelines to the applicable penalty provisions in the substantive criminal
statutes. Accordingly, because MCL 750.335a(2)(c) establishes a mandatory minimum sentence
of one day and makes no allowance for variances, the court must impose the sentence in MCL
750.335a(2)(c) or the applicable alternative in MCL 750.335a(2)(a) or (b). The only possible
textual basis for a term-of-years sentence for MCL 750.335a(2)(c) is a reference in MCL 777.16q
to “Life” as the statutory maximum sentence for that offense. But nothing in the text indicates that
the term “Life” can encompass any term of years, such as the 70-year maximum sentence imposed
by the trial court in this case. Interpreting “life” to mean “life or any term of years” would cut
against the meaning of life imprisonment as well as caselaw treating life sentences and term-of-
years sentences as mutually exclusive. Further, while “life” might be the only possible maximum
sentence, it is hard to see how MCL 777.16q imposes this sentence. Such an interpretation would
require a determination that the statute implicitly referred to in MCL 777.16q in the “Stat Max”
(statutory maximum sentence) column is MCL 777.16q itself, rather than the substantive criminal
statute. This conclusion is belied by the fact that all of the other offenses in the relevant sentencing
grids in the guidelines indicate that the statute referred to in the “Stat Max” column is the relevant
Penal Code statute listed in the grid. Thus, the most natural reading of MCL 777.16q confirms
that MCL 750.335a(2)(c) establishes the substantive penalty for indecent exposure as a sexually
delinquent person. Further, the guidelines are part of the Code of Criminal Procedure, MCL 760.1
et seq. The term “procedure” is usually used in contradistinction to “substantive”; the substantive
criminal law generally encompasses the definitions of crimes and the penalties for the crimes.
“Procedure,” by contrast, is the law governing the series of procedures through which the
substantive criminal law is enforced. The titles of the Penal Code, MCL 750.1 et seq., and the
Code of Criminal Procedure support these observations. The Penal Code’s title states that the act’s
purpose is “to define crimes and prescribe the penalties therefor . . . ,” while the title of the Code
of Criminal Procedure provides that its purpose is to “codify the laws relating to criminal
procedure.” The contents of the Code bear this out, as none of its provisions involves the direct
creation of crimes or the imposition of core penalties. Therefore, neither MCL 777.16q or MCL
777.62 mandates a particular sentence or range of sentences, nor do they establish discrete
penalties or supplant the penalties specified in the substantive criminal statute. For these reasons,
MCL 777.16q and MCL 777.62 cannot be read to authorize sentence ranges that are an alternative
to the penalty in MCL 750.335a(2)(c). Therefore, the reference in MCL 777.16q to MCL
750.335a(2)(c) is nugatory, and MCL 777.62 does not apply to individuals convicted under MCL
750.335a(2)(c). Although the general rule when interpreting a statute is to give effect to every
word, phrase, and clause and avoid an interpretation that would render any part of the statute
nugatory, this principle is not absolute, and in this case must give way to the unmistakable
meanings of the statutes. The only way to harmonize the statutes is to interpret the guidelines as
an alternative penalty provision, but this interpretation is not supported by the text. Because the
guidelines do not apply, Arnold I controls the sentencing of individuals convicted of an indecent-
exposure offense as a sexually delinquent person under MCL 750.335a(2)(c). A court may impose
the applicable penalty provision in MCL 750.335a(2)(a) or (b), along with any applicable
sentencing enhancements, or the “1 day to life” sentence in MCL 750.335a(2)(c). Arnold was not
sentenced to either of these options because his sentence reflects the application of the sentencing
guidelines. Because the guidelines are not applicable, he was entitled to resentencing.
Judgment reversed and case remanded for resentencing.
Justice CLEMENT, joined by Chief Justice MCCORMACK and Justice CAVANAGH,
concurring in the judgment, agreed that the trial court’s sentence of 25 to 70 years was invalid
because Arnold had to be sentenced either to a term of years under MCL 750.335a(2)(b) (as
potentially enhanced by being a fourth-offense habitual offender) or to a “1 day to life” sentence
under MCL 750.335a(2)(c). Although the trial court had complied with the sentencing guidelines,
the guidelines could not authorize Arnold’s sentence because to do so would indirectly amend
MCL 750.335a in violation of Const 1963, art 4, § 25. Rather than address the constitutional issue,
the majority instead tried to uncover the ordinary meaning of the sentencing guidelines. MCL
750.335a(2)(c) provided a “1 day to life” sentence, while the term-of-years sentence option in
MCL 750.335a(2)(b) allowed the trial court to sentence Arnold as a fourth-offense habitual
offender to up to a 15-year maximum sentence. By contrast, under MCL 777.16q and MCL 777.62
of the guidelines, Arnold’s recommended minimum sentence range as a fourth-offense habitual
offender was between 135 and 450 months, and the trial court sentenced him to a minimum
sentence of 25 years. The likely reason for these disparate outcomes was a mistake due to the
failure of the Legislature’s institutional memory between the enactment of MCL 750.335a in 1952
and the enactment of the guidelines in 1998. When enacting the guidelines, the Legislature
seemingly concluded that the “1 day to life” language in MCL 750.335a was equivalent to “life or
any term of years” and therefore listed indecent exposure by a sexually delinquent person as a
Class A felony under the guidelines. The majority concludes that the ordinary meaning of MCL
777.16q is that it does not mean what it says, because interpreting the statute’s reference to “Life”
as “life or any term of years” requires a series of inferences. However, such inferences are
commonplace throughout the guidelines. Rather, the Court had to negate the expression of
legislative intent because Michigan constitutional law prevents the adoption of a provision of the
Code of Criminal Procedure (i.e., MCL 777.16q) from indirectly amending a provision of the Penal
Code (i.e., MCL 750.335a(2)(c)). Under the Reenact-Publish Clause of the Michigan Constitution,
Const 1963, art 4, § 25, changes to the law must be in the form of redline edits, i.e., in order to
change the law, the Legislature must edit the text rather than enact some inconsistent provision.
Therefore, the instructions in the Code of Criminal Procedure for how to sentence someone
convicted of an indecent-exposure offense cannot indirectly change the sentencing options in the
Penal Code. Justice CLEMENT agreed however with the majority’s conclusion that Arnold was
entitled to resentencing to either a term-of-years sentence that complied with MCL 750.335a(2)(b)
or to a “1 day to life” sentence under MCL 750.335a(2)(c).
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
OPINION Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch
FILED July 28, 2021
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 160046
LONNIE JAMES ARNOLD,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
VIVIANO, J.
A person charged with a crime should not have to guess at the penalty he or she
faces upon conviction. 1 Yet that is the predicament a defendant faces after being convicted
of indecent exposure as a sexually delinquent person under MCL 750.335a. At an earlier
1
See People v Hall, 499 Mich 446, 461; 884 NW2d 561 (2016) (“Due process requires
‘that a person receive fair notice not only of the conduct that will subject him to
punishment, but also of the severity of the penalty that a State may impose.’ ”) (citation
omitted).
stage of this case, we held that a person found guilty under § 335a(2) of the Penal Code
could be sentenced either to a nonmodifiable term of “1 day to life” or to the other
applicable statutory penalties established by that statute. 2 However, according to the Court
of Appeals’ interpretation on remand, such a person would also have to examine MCL
777.16q and MCL 777.62 of the sentencing guidelines in the Code of Criminal Procedure,
because the guidelines purport to apply to individuals in defendant’s circumstances and
suggest that he could face a radically different penalty—imprisonment for life or any term
of years.
When this case was last before us, we declined to resolve whether § 335a or the
guidelines applied in these circumstances. Today, we must confront the clear conflict
between the “1 day to life” sentence in § 335a(2)(c) of the Penal Code and the sentence in
§§ 16q and 62 of the guidelines. Contrary to the Court of Appeals, we hold that the
guidelines do not create an alternative sentence that can be imposed instead of the “1 day
to life” sentence in § 335a(2)(c). This means that individuals convicted of an indecent-
exposure offense under § 335a as sexually delinquent persons must be sentenced pursuant
to the penalties prescribed in that statute as described in our earlier opinion. Because
defendant did not receive such a sentence, he is entitled to resentencing.
I. FACTS AND PROCEDURAL HISTORY
Our prior opinion in this case laid out the relevant facts:
Defendant Lonnie Arnold masturbated in front of an employee at the
Monroe Public Library in January 2013. He was charged with aggravated
2
People v Arnold, 502 Mich 438, 482-483; 918 NW2d 164 (2018) (Arnold I).
2
indecent exposure, MCL 750.335a(2)(b), indecent exposure by a sexually
delinquent person, MCL 750.335a(2)(c), and also with being a fourth-offense
habitual offender, MCL 769.12. He was convicted after a jury trial on both
substantive indecent-exposure counts.[3]
As discussed more below, § 335a(2) provides a penalty of up to one year of imprisonment
and a fine for indecent exposure, two years of imprisonment and a fine for aggravated
indecent exposure, and an alternative of “1 day to life” imprisonment if the defendant
commits either indecent exposure or aggravated indecent exposure and is deemed to have
been a sexually delinquent person at the time of the offense. 4 At sentencing, defense
counsel argued that § 335a(2)(c) required a sentence of “1 day to life.” The trial court
disagreed, observing that it was prohibited from imposing a so-called “life tail,” under
which the maximum penalty is life in prison and the minimum penalty is a term of years. 5
The trial court sentenced defendant to 25 to 70 years’ imprisonment on the controlling
3
Id. at 444.
4
A “sexually delinquent person” is defined as “any person whose sexual behavior is
characterized by repetitive or compulsive acts which indicate a disregard of consequences
or the recognized rights of others, or by the use of force upon another person in attempting
sex relations of either a heterosexual or homosexual nature, or by the commission of sexual
aggressions against children under the age of 16.” MCL 750.10a.
5
Arnold I, 502 Mich at 450; see also MCL 769.9(2) (“The court shall not impose a sentence
in which the maximum penalty is life imprisonment with a minimum for a term of years
included in the same sentence.”).
3
count of indecent exposure as a sexually delinquent person. 6 The minimum sentence of 25
years was calculated to fit within the sentencing guidelines range. 7
Defendant appealed his sentence, and the case eventually reached our Court. In a
unanimous opinion, we held that the “1 day to life” sentence for indecent exposure as a
sexually delinquent person was an alternative to the other sentences provided in § 335a for
indecent exposure and aggravated indecent exposure. 8 In other words, a defendant
convicted of indecent exposure or aggravated indecent exposure while being a sexually
delinquent person could be sentenced either to “1 day to life” or to “the other statutory
penalties available under the statute . . . .” 9 This scheme remained intact even after § 335a
was amended in 2005. 10 In addition, we held that that the “1 day to life” sentence was not
modifiable. 11 That is, a sentence of “1 day to life” was just that: the minimum was one day
and the maximum was life, neither of which could be changed.
6
Arnold I, 502 Mich at 446. The Court of Appeals set aside defendant’s sentence for
aggravated indecent exposure for reasons that are not relevant to the present appeal. Id. at
446 n 3.
7
Id. at 449 (“The sentencing guidelines list indecent exposure by a sexually delinquent
person as a Class A felony, MCL 777.16q, and the proposed scoring of defendant’s
guidelines variables placed him in cell F-III of the Class A grid, which provides for a
minimum sentence of 135 to 225 months, MCL 777.62, the high end of which was then
doubled to 450 months because defendant was a fourth-offense habitual offender, MCL
777.21(3)(c).”).
8
Id. at 482-483.
9
Id.
10
Id. at 479-480, citing 2005 PA 300.
11
Arnold I, 502 Mich at 469-471.
4
Because our interpretation of the statute did not account for the sentencing
guidelines, we remanded the case to the Court of Appeals to “resolve what effect the
adoption of the legislative sentencing guidelines had on the operation of the sexual-
delinquency scheme as we have construed it . . . .” 12 On remand, the Court of Appeals
phrased the issue as “reconcil[ing] the optional, alternative sentence of ‘1 day to life’
provided in MCL 750.335a(2) . . . with the classification of indecent exposure (and other
designated offenses) by a sexually delinquent person as a Class A felony subject to the
sentencing guidelines as provided in MCL 777.16q of the Code of Criminal Procedure.” 13
The need to reconcile these statutes resulted from the fact that the guidelines provide ranges
of sentences that depart from the “1 day to life” sentence included in § 335a(2)(c).
In attempting to resolve this tension between the sentencing frameworks, the Court
of Appeals observed the interpretive principle that statutes involving the same subject
matter should be read in pari materia, i.e., construed together to avoid conflict. 14 After
determining that the guidelines and § 335a both concerned the same subject matter, the
Court of Appeals concluded that “the sentencing guidelines provide yet another sentencing
alternative for individuals convicted of indecent exposure as a sexual delinquent.” 15
Accordingly, a trial court could sentence a defendant in these circumstances to “(a) one
12
Id. at 481.
13
People v Arnold (On Remand), 328 Mich App 592, 604; 939 NW2d 690 (2019)
(Arnold II).
14
Id. at 606.
15
Id. at 610.
5
day to life for indecent exposure by a sexually delinquent person, MCL 750.335a(2)(c), or
(b) a sentence premised on a scoring of the guidelines, MCL 777.16q, which in this case
could be enhanced under the habitual-offender statute, MCL 777.21.” 16 Because the trial
court “was not aware of its range of sentencing options” when it sentenced defendant, the
Court of Appeals vacated defendant’s sentence and remanded the case for resentencing. 17
Defendant then sought leave to appeal in this Court. We granted the application and
ordered argument on, among other things, whether the offense of “indecent exposure by a
sexually delinquent person . . . is subject to the sentencing guidelines . . . because it is set
forth in MCL 777.16q as a listed felony.” 18
II. STANDARD OF REVIEW
We review issues of statutory interpretation de novo. 19
III. ANALYSIS
The issue presented is whether the guidelines expand on the sentences available for
an individual convicted under § 335a of indecent exposure or aggravated indecent exposure
as a sexually delinquent person. More specifically, we must decide whether, as an
16
Id. The Court of Appeals also rejected defendant’s argument that, under its construction
of the statutes, the sentencing guidelines functioned as an unconstitutional amendment of
§ 335a by amending that statute without reenacting and republishing it as required by Const
1963, art 4, § 25. Id. at 613-614. The Court of Appeals did not read the relevant guidelines
provision, § 16q, as an amendment of § 335a; each was “independent and complete” and
did not necessitate reference to another statute to ascertain its meaning. Id. at 614.
17
Id. at 596.
18
People v Arnold, 505 Mich 1001 (2020) (Arnold III).
19
Arnold I, 502 Mich at 447.
6
alternative to the penalty in § 335a(2)(c), such a defendant can be sentenced under the
guidelines, i.e., whether the guidelines constitute a substantive penalty provision that
allows for a sentence other than an unmodifiable sentence of one day to life. We find that
§ 335a(2)(c) and the guidelines offer conflicting sentences but that the latter do not create
an alternative penalty provision. Thus, the only penalties that can be imposed are those
under § 335a(2), as interpreted by our decision in Arnold I.
A. STATUTORY BACKGROUND
Section 335a defines the offenses of indecent exposure and aggravated indecent
exposure, lays down the penalties for these offenses, and establishes an alternative sentence
that is available when a defendant commits one of these offenses while being a sexually
delinquent person. The statute states, in relevant part:
(1) A person shall not knowingly make any open or indecent exposure
of his or her person or of the person of another.
(2) A person who violates subsection (1) is guilty of a crime, as
follows:
(a) Except as provided in subdivision (b) or (c), the person is guilty of
a misdemeanor punishable by imprisonment for not more than 1 year, or a
fine of not more than $1,000.00, or both.
(b) If the person was fondling his or her genitals, pubic area, buttocks,
or, if the person is female, breasts, while violating subsection (1), the person
is guilty of a misdemeanor punishable by imprisonment for not more than 2
years or a fine of not more than $2,000.00, or both.
(c) If the person was at the time of the violation a sexually delinquent
person, the violation is punishable by imprisonment for an indeterminate
term, the minimum of which is 1 day and the maximum of which is life.[20]
20
MCL 750.335a. When the prosecution seeks to charge an individual for either type of
indecent exposure while being a sexually delinquent person, the individual must be charged
7
As noted above, in Arnold I, we interpreted this language to allow an individual convicted
of an indecent-exposure offense as a sexually delinquent person to be sentenced to either
“1 day to life” under § 335a(2)(c) or to the appropriate penalty in § 335a(2)(a) or (b).21
And, as also mentioned, the sentence under § 335a(2)(c) must be precisely “1 day to life.”
The guidelines, however, contemplate a different range of sentences for an
individual found guilty under § 335a(2)(c). In § 16q, the guidelines specifically refer to
§ 335a(2)(c): “This chapter [that is, Chapter 777 of the Code of Criminal Procedure, which
sets out the sentencing guidelines] applies to the following felonies enumerated in chapter
750 of the Michigan Compiled Laws: . . . [MCL] 750.335a(2)(c) . . . .” 22 The table set
forth in § 16q, shown below in relevant part, indicates that § 335a(2)(c) is a Class A felony
with a statutory maximum of life imprisonment:
with the underlying indecent-exposure offense and charged as a sexually delinquent
person. MCL 767.61a. “Upon a verdict of guilty to the first charge or to both charges or
upon a plea of guilty to the first charge or to both charges the court may impose any
punishment provided by law for such offense.” MCL 767.61a.
21
See Arnold I, 502 Mich at 448-449 (“[I]ndecent exposure is a one-year misdemeanor,
with aggravated circumstances making it a two-year ‘misdemeanor,’ but when committed
by a ‘sexually delinquent person,’ the offense ‘is punishable by imprisonment for an
indeterminate term, the minimum of which is 1 day and the maximum of which is life.’ ”),
quoting MCL 750.335a(2)(c).
22
Formatting altered.
8
M.C.L. Category Class Description Stat Max
Entering horse in race under
750.332 Property H false name 4
Aggravated indecent
750.335a(2)(b) Person G exposure 2
Indecent exposure by
750.335a(2)(c) Person A sexually delinquent person Life
The guidelines “grid” for Class A felonies, set out in § 62 of the guidelines, provides for
various minimum sentence ranges, from 21 months in prison at the low end to life
imprisonment at the high end. 23 In other words, the grid lays out a range of possible
minimum sentences for term-of-years sentences—in contrast to the “1 day to life” sentence
in § 335a(2)(c)—depending on the scoring of the guidelines. For example, an offense
variable score of 40 to 59 points, together with a prior record variable score of 25 to 49
points, results in a recommended minimum sentence range of 108 to 180 months in
prison. 24
The problem presented by §§ 16q and 62 is that they appear to allow for sentences
that clash with the “1 day to life” sentence in § 335a(2)(c). Under our interpretation of the
“1 day to life” scheme in Arnold I, the language in § 335a(2)(c) requires an exact sentence
of “1 day to life,” unless one of the other applicable sentences in § 335a(2)(a) or (b) is
imposed. But if §§ 16q and 62 establish sentences that vary from this scheme, these statutes
cannot be read as simply doing what the other sentencing guidelines do: guiding the
23
MCL 777.62.
24
MCL 777.62.
9
imposition of a penalty established in the Penal Code or elsewhere. 25 That is, §§ 16q and
62 would not merely guide the trial court’s discretion in sentencing an individual pursuant
to the penalty prescribed in the substantive offense statute. For § 335a(2)(c) to be
consistent with the guidelines, the “1 day to life” scheme would need to be modifiable; i.e.,
“1 day to life” would need to mean “ ‘life or any term of years,’ such that a sentencing
court may impose any sentence, including the one imposed here.” Arnold I, 502 Mich at
452. We rejected that interpretation in Arnold I. 26
25
Cf. People v Lockridge, 498 Mich 358, 417-418; 870 NW2d 502 (2015) (MARKMAN, J.,
dissenting) (“Under Michigan’s indeterminate sentencing guidelines, a criminal
defendant’s maximum sentence is prescribed by statute, and upon a guilty verdict the
defendant is made subject to serving this maximum sentence. . . . That is, the jury’s guilty
verdict authorizes punishment of a criminal defendant to the maximum extent allowed by
the statute under which he or she has been convicted.”); People v Hardy, 494 Mich 430,
438; 835 NW2d 340 (2013) (noting that the sentencing guidelines “prescribed detailed
instructions for imposing sentences, thereby reducing” the judge’s exercise of discretion);
People v Drohan, 475 Mich 140, 161; 715 NW2d 778 (2006) (“The maximum sentence is
not determined by the trial court, but rather is set by law. Michigan’s sentencing
guidelines . . . create a range within which the trial court must set the minimum sentence.
However, a Michigan trial court may not impose a sentence greater than the statutory
maximum.”), rev’d on other grounds by Lockridge, 498 Mich 358, 378-379.
26
It is, of course, possible that the Legislature misunderstood the “1 day to life” sentence
in § 335a(2)(c) as meaning “life or any term of years” when—in 2005, before we gave the
statute an authoritative interpretation and discerned its original meaning—it made the last
relevant amendments to § 335a(2) and § 16q. See 2005 PA 300 (amending § 335a by
adding Subsection (2)(c) and moving the “1 day to life” sentence to that subsection); 2005
PA 302 (amending § 16q by adding a reference to § 335a(2)(c) and stipulating that the
amendment would not become effective until 2005 PA 300 took effect). In fact, the
concurrence takes this view further and interprets § 16q as amending the meaning (but not
the text) of the “1 day to life” sentence in § 335(a)(2) so that the latter statute now allows
for sentences of “life or any term of years.” But the concurrence cites no authority for this
conclusion and provides no examples of when this has occurred before. And the 2005
amendment of § 335a(2) made no relevant alterations to the language reflecting a new
understanding of the statute. Arnold I, 502 Mich at 479-480. This strongly indicates that
no change in meaning was intended. See People v Pinkney, 501 Mich 259, 282 n 55; 912
10
The “alternative” penalty the Court of Appeals discerned in the guidelines is thus
independent of any other statutory penalty provision. The only way this penalty can apply,
therefore, is if this provision—unlike any other provision in the sentencing guidelines that
we are aware of—serves as the relevant penalty provision for conduct criminalized in
§ 335a of the Penal Code, and if this is so, it is true despite the fact that § 335a itself appears
to specify all the possible penalties. 27 Stated differently, do the guidelines create a
substantive penalty provision for § 335a(2)(c), authorizing courts to impose that penalty to
the exclusion of the penalty actually set forth in § 335a(2)(c)? 28
NW2d 535 (2018) (“If it is true (and we think it is) that ‘a change in the language of a prior
statute presumably connotes a change in meaning,’ . . . the converse seems even more
obviously true: namely, that no change in the text connotes no change in its meaning.”);
Cooley, Constitutional Limitations (5th ed), pp 76-77 (“[I]f the new instrument re-enacts
in the same words provisions which it supersedes, it is a reasonable presumption that the
purpose was not to change the law in those particulars, but to continue its uninterrupted
operation. This is the rule in the case of statutes . . . .”). Moreover, the Legislature’s
possible misinterpretation of an earlier enacted statute provides “a hazardous basis for
inferring the intent of an earlier” Legislature, even when that misinterpretation plays a role
in the crafting of subsequent legislation. See United States v Philadelphia Nat’l Bank, 374
US 321, 348-349; 83 S Ct 1715; 10 L Ed 2d 915 (1963) (quotation marks and citation
omitted). Thus, the Legislature’s possible misinterpretation of § 335a(2)(c) does not bear
on our interpretation of that statute or how it relates to the guidelines.
27
Section 16q does cover three other gross-indecency crimes that also include a “1 day to
life” alternative sentence similar to that in § 335a(2)(c). See MCL 777.16q (citing MCL
750.338, MCL 750.338a, and MCL 750.338b). As here, those crimes when committed by
a sexually delinquent person are placed on the same Class A felony grid in § 62. Of the
1,120 crimes covered by the sentencing guidelines, these four crimes involving sexual
delinquency appear to be the only offenses for which, according to the Court of Appeals’
interpretation, the guidelines set forth a substantive penalty.
28
Cf. Pinkney, 501 Mich at 269 (defining “penalty provision” as “a provision providing
the penalty for [a] crime”); see generally Black’s Law Dictionary (11th ed) (defining
“penalty” as the “[p]unishment imposed on a wrongdoer, usu[ually] in the form of
11
B. INTERPRETATION OF THE GUIDELINES
To answer this question, we must uncover the ordinary meaning of the guidelines. 29
Critically, the guidelines do not purport to trump the substantive penalties prescribed in the
statutes establishing the criminal offense. In fact, the Legislature has subordinated the
guidelines to the applicable penalty provisions in the substantive criminal statutes. Under
MCL 769.34(2)(a), “If a statute mandates a minimum sentence for an individual sentenced
to the jurisdiction of the department of corrections, the court shall impose a sentence in
accordance with that statute.” Here, as Arnold I establishes, the “1 day to life” scheme in
§ 335a(2)(c) is unmodifiable and serves as an alternative to the penalties in § 335a(2)(a)
and (b). Section 335a(2)(c) establishes a mandatory minimum of one day and makes no
allowance for variances. 30 Accordingly, under MCL 769.34(2)(a), the court must impose
the sentence in § 335a(2)(c) itself or, under Arnold I, the applicable alternative in
§ 335a(2)(a) or (b).
Nothing in the text of § 16 or § 62 suggests otherwise. Indeed, these two sections
contain scarcely any “text” at all in the usual sense. One is primarily a table and the other
primarily a grid. Both statutes contain mostly numbers or citations and short phrases that
refer to other statutes. Neither statute expressly states that individuals found guilty under
§ 335a(2)(c) can be punished by any term of years, as seems to be envisioned by the grid,
or by any other alternative sentence.
imprisonment or fine,” and “statutory penalty” as the “penalty imposed for a statutory
violation”).
29
See Pinkney, 501 Mich at 268.
30
Arnold I, 502 Mich at 469-471, 483.
12
The only possible textual basis for the term-of-years sentence is a reference in § 16q
to “Life” as the “Stat Max” (statutory maximum sentence) for convictions under
§ 335a(2)(c). Nothing in the text indicates that the term “Life” in § 16q can encompass
any term of years, such as the 70-year maximum sentence the trial court dispensed in this
case. One would have to interpret “Life” to mean “life or any term of years.” This would
cut against not only the meaning of “life” imprisonment, but also our caselaw treating life
sentences and term-of-years sentences as mutually exclusive. 31 At best, the reader would
need to work through a series of inferences in order to conclude that “Life” could also mean
“any term of years”: (1) the guidelines grid provides for a minimum term-of-years sentence
for convictions under § 335a(2)(c); (2) but life tails (i.e., sentences of a minimum number
of years with a maximum of life) are prohibited by MCL 769.9(2); (3) therefore, a
defendant may not be sentenced to a minimum term of years with a maximum of life; (4)
it would then follow that the maximum must be “life or any term of years.” In other words,
if the maximum was life, then there could never be a minimum for a term of years, and
31
See Arnold I, 502 Mich at 472-473 (construing the “1 day to life” sentence, as adopted,
“as being an alternative sentencing option that existed alongside other options, such as a
life sentence or a term of years”); see generally People v Johnson, 421 Mich 494, 498; 364
NW2d 654 (1984) (“The sentence concepts ‘life’ and ‘any term of years’ are mutually
exclusive . . . .”).
13
consequently, the grid establishing such a minimum would be superfluous. 32 This would
be an extremely circuitous path for establishing a substantial maximum penalty. 33
While “life” might be the only possible maximum sentence for a violation of
§ 335a(2)(c), it is hard to see how § 16q itself imposes this sentence. Such an interpretation
would require a determination that the phrase “Stat Max” is a self-reference to § 16q. That
is, if § 16q creates and imposes the life maximum sentence, then the “statute” implicitly
referred to in the “Stat Max” column would be that very section, i.e., § 16q. But this
conclusion is belied by the fact that all the other offenses in the § 16q sentencing grid and
all of the offenses in the other relevant sentencing grids in the guidelines indicate that the
“statute” referred to in the “Stat Max” column is the relevant Penal Code statute listed in
the grid. The most natural reading of “Stat Max” is that it refers to the maximum sentence
32
The concurrence points out that the guidelines sometimes use the term “Life” under the
“Stat Max” column to refer to sentences of “life or any term of years.” Post at 7. The
concurrence suggests that “Life,” as used in that column, almost always means “life or any
term of years.” But as the concurrence seems to recognize, this is because the penalty
established by the substantive criminal statute provides for such a penalty. Thus, “Life”
means “life or any term of years” only when the substantive penalty provision establishes
a statutory maximum term of “life or any term of years.” For example, the “Stat Max” for
first-degree arson is listed as “Life,” MCL 777.16c, but the applicable penalty provision
allows for “imprisonment for life or any term of years,” MCL 750.72(3). In such cases,
the concurrence is correct that “Life” is a “shorthand” for the substantive penalty offense.
But this is not one of those cases. Section 335(a)(2) does not provide a “life or any term
of years” penalty. Thus, to interpret the reference to “Life” in § 16q as “life or any term of
years” requires the interpretive leaps spelled out above.
33
Defendants should not be forced to run through such interpretive gymnastics to reveal
the meaning of a criminal statute. See Pinkney, 501 Mich at 268 (“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.’ ”) (citation
omitted; alteration in original).
14
contained in the statute listed in the first column; in this case, that statute is § 335a(2)(c).
Under this reading, § 16q confirms that § 335a(2)(c) establishes the substantive penalty.
Another strong indication that the guidelines did not smuggle a substantive penalty
provision into § 16q is the very title of the act that the guidelines fall within: the “Code of
Criminal Procedure.” 34 The term “procedure” is usually used in contradistinction to
“substantive”; substantive criminal laws are generally thought to encompass the definitions
of the crimes and the penalties for the crimes. A leading treatise states that “[t]he
substantive criminal law is that law which . . . declares what conduct is criminal and
prescribes the punishment to be imposed for such conduct.” 35 Other courts have agreed.36
Indeed, so critical is the penalty to “substantive criminal law” that “conduct cannot be
34
MCL 760.1. The “Code of Criminal Procedure” is the short title of 1927 PA 175, but
the full title similarly makes clear that the Code of Criminal Procedure involves “the laws
relating to criminal procedure . . . .” 1927 PA 175, title. A title is a “permissible indicator[]
of meaning,” provided it is not used to override the statutory text. Scalia & Garner,
Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), pp 221-
222. And we have stated that our Constitution requires “[t]he body of [a] statute [to]
reasonably harmonize” with its title. McKellar v Detroit, 57 Mich 158, 159; 23 NW 621(1885).
35
1 LaFave, Substantive Criminal Law (3d ed), § 1.2, p 11; cf. People v Beck, 504 Mich
605, 640; 939 NW2d 213 (2019) (VIVIANO, J., concurring), quoting Apprendi v New
Jersey, 530 US 466, 479-480; 120 S Ct 2348; 147 L Ed 2d 435 (2000) (noting that
historically, “[t]he substantive criminal law tended to be sanction-specific; it prescribed a
particular sentence for each offense”) (cleaned up).
36
See Kansas v Sheppard, 56 Kan App 2d 1193, 1203; 444 P3d 1006 (2019) (“The penalty
provisions of a criminal offense are substantive and therefore . . . will only operate
retrospectively if the statute’s language expresses a clear legislative intent to do so.”); In
re Hall, 433 SW3d 203, 214 (Tex App, 2014) (“Laws which do not amend substantive law
by defining criminal acts or providing for penalties are procedural in nature.”).
15
called ‘criminal’ unless a punishment is prescribed therefor.” 37 This is why the normal
drafting convention for criminal statutes is to place the penalty as near as possible to the
prohibited conduct. 38 Procedure, by contrast, is “the law governing that series of
procedures through which the substantive criminal law is enforced.” 39
We have taken a similar view, quoting the Penal Code’s title for the proposition that
“the purpose of the Penal Code is ‘to define crimes and prescribe the penalties
therefor . . . .’ ” 40 By contrast, as we have recognized, “[t]he purpose of the Code of
Criminal Procedure is to ‘codify the laws relating to criminal procedure . . . .” 41 The
contents of the Code of Criminal Procedure bear out this observation. The Code of
Criminal Procedure spans 20 chapters in the Michigan Compiled Laws (MCLs), none of
37
1 LaFave, Substantive Criminal Law, § 1.2, p 12; see also id. at § 1.2(d), pp 18-19 (“We
have seen that a crime is made up of two parts, forbidden conduct and a prescribed penalty.
The former without the latter is no crime.”).
38
See generally id. at § 1.2(d), p 19 (“In many cases the section of the statute which
describes the forbidden conduct concludes with a statement of the punishment; or perhaps
one section sets forth the forbidden conduct and the next section the punishment.”); 1A
Singer & Singer, Sutherland Statutory Construction (7th ed), § 20:18, pp 146-147 (noting
the “[c]ommon legislative practice” of “includ[ing] many penalty sections in every statute”
under the theory that the penalty provision should be “set forth immediately” after the
standard of conduct, but advocating for penalty provisions to be placed at the end of the
act and to “provide that any violation of the provisions of the act is punishable according
to the terms of the penalty section”).
39
1 LaFave, Criminal Procedure (4th ed), § 1.1(a), p 3.
40
People v Smith, 423 Mich 427, 442; 378 NW2d 384 (1985), quoting 1931 PA 328, title
(the Smith Court referred to the act’s textual title as a preamble).
41
Smith, 423 Mich at 442, quoting 1927 PA 175, title (the Smith Court referred to the act’s
textual title as a preamble).
16
which involves the direct creation of crimes or the imposition of core penalties. 42 Indeed,
were we to hold that §§ 16q and 62 establish a substantive penalty, it would appear to be
the only such penalty located in the guidelines.
The conclusion that §§ 16q and 62 are not substantive penalty provisions finds
support in caselaw from across the country. As the United States Supreme Court has
observed, the nonstatutory federal guidelines “do not regulate the public by prohibiting any
conduct or by ‘establishing minimum and maximum penalties for [any] crime.’ . . . Rather,
the Guidelines advise sentencing courts how to exercise their discretion within the bounds
established by Congress.” 43 Other courts have agreed. In addressing statutory sentencing
guidelines, the Washington Supreme Court stated, “Sentencing guidelines do not inform
the public of the penalties attached to criminal conduct nor do they vary the statutory
42
Instead, the chapters of the Code of Criminal Procedure encompass “provisions for the
proper procedures to be followed,” Smith, 423 Mich at 442; more specifically, they involve
the powers and duties of the courts in criminal matters (Chapter II; MCL 762.1 et seq.), the
rights of the accused (Chapter III; MCL 763.1 et seq.), provisions for arrests (Chapter IV;
MCL 764.1 et seq.), bail (Chapter V; MCL 765.1 et seq.), examination of offenders
(Chapter VI; MCL 766.1 et seq.), pretrial proceedings (Chapter VII; MCL 767.1 et seq.),
investigative subpoenas and immunity (Chapter VIIA; MCL 767A.1 et seq.), trials
(Chapter VIII; MCL 768.1 et seq.), judgments and sentences (Chapter IX; MCL 769.1 et
seq.), post-trial motions (Chapter X; MCL 770.1 et seq.), probation (Chapters XI and XIA;
MCL 771.1 et seq. and MCL 771A.1 et seq.), crime-prevention proceedings (Chapter XII;
MCL 772.1 et seq.), criminal investigations (Chapter XIII; MCL 773.1 et seq.), jurisdiction
and procedure in justices’ courts (Chapter XIV; MCL 774.1a et seq.), fees (Chapter XV;
MCL 775.1 et seq.), miscellaneous provisions (such as extradition) (Chapter XVI; MCL
776.6 et seq.), and the sentencing guidelines (Chapter XVII; MCL 777.1 et seq.).
43
Beckles v United States, 580 US ___, ___; 137 S Ct 886, 895; 197 L Ed 2d 145 (2017).
Beckles and related cases rejected constitutional vagueness challenges to the sentencing
guidelines. Because that issue is not present in this case, we take no position on it.
17
maximum and minimum penalties assigned to illegal conduct by the legislature.” 44 One of
the Washington court’s rationales applies here as well: the guidelines only “structure
discretionary decisions affecting sentences; they do not specify that a particular sentence
must be imposed.” 45 In a similar vein, neither § 16q nor § 62 mandates a particular
sentence or range of sentences; as discussed above, the guidelines do not establish discrete
penalties and do not supplant the penalties specified in the substantive criminal statute.
For these reasons, §§ 16q and 62 cannot be read to authorize sentence ranges that
serve as an alternative to the penalty laid out in § 335a(2)(c). 46 It follows from this
conclusion that the reference in § 16q to § 335a(2)(c) is nugatory and that § 62 therefore
does not apply to individuals found guilty under § 335a(2)(c). We acknowledge that this
is an unusual result and emphasize it is one we reach only after close scrutiny of the
44
State v Baldwin, 150 Wash 2d 448, 459; 78 P3d 1005 (2003); see also id. (“A citizen
reading the guideline statutes will not be forced to guess at the potential consequences that
might befall one who engages in prohibited conduct because the guidelines do not set
penalties.”); see also State v Rourke, 773 NW2d 913, 918 (Minn, 2009) (agreeing with
federal caselaw holding that sentencing guidelines do not establish the criminal conduct
but simply serve as directions to guide judges during sentencing).
45
Baldwin, 150 Wash 2d at 461.
46
Our decision in People v Buehler, 477 Mich 18, 20, 24; 727 NW2d 127 (2007), held that
probation was not an alternative penalty available for sexually delinquent persons
convicted under § 335a. In our discussion, we stated in dicta that the guidelines controlled
over a prior version of § 335a. But the basis for this conclusion was the Court of Appeals’
observation that although the applicable version of § 335a was the more specific provision,
which usually controls, the sentencing guidelines were enacted after that version. People
v Buehler, 271 Mich App 653, 658-659; 723 NW2d 578 (2006). That is no longer the case,
as the versions of § 335a and the guidelines at issue were enacted together. See 2005 PA
300 and 2005 PA 302. In any event, Arnold I, 502 Mich at 473-477, 481, disavowed our
decision in Buehler and held it was “no longer . . . a binding statement of the proper
interpretation of these statutes.”
18
statutes. 47 “[A]s a general rule, ‘we must give effect to every word, phrase, and clause and
avoid an interpretation that would render any part of the statute surplusage or nugatory.’ ” 48
But this principle is not absolute, and here it must give way to the unmistakable meaning
of the statutes. 49 Sections 16q and 62 clash with § 335a(2)(c). The former statutes
contemplate sentences that are nowhere provided for in the latter. The only way to make
these statutes cohere is to interpret the guidelines as an alternative penalty provision. But
for the reasons above, such an interpretation is unwarranted. 50 In these circumstances, our
duty is to accord the text its ordinary meaning even if that meaning leads us to conclude
that some of the text—the reference in § 16q to § 335a(2)(c) and the resulting application
of § 62 to individuals found guilty under § 335a(2)(c)—is nugatory. 51
47
Of course, the Legislature may, within constitutional bounds, establish whatever penalty
it desires for violation of § 335a. We simply determine today that the Legislature has not
done so through the sentencing guidelines.
48
Pinkney, 501 Mich at 282 (citation omitted).
49
See id. at 283.
50
In an understandable effort to avoid this conclusion, the Court of Appeals relied on the
in pari materia canon, under which we endeavor to read statutes concerning the same
general subject as harmonious, if possible. Int’l Business Machines Corp v Dep’t of
Treasury, 496 Mich 642, 652; 852 NW2d 865 (2014) (opinion by VIVIANO, J.). This canon,
however, aims to uncover a statute’s ordinary meaning and therefore cannot be invoked to
rewrite the statute. See SBC Health Midwest, Inc v Kentwood, 500 Mich 65, 74; 894 NW2d
535 (2017) (declining to use the canon to incorporate terms from one statute into a related
statute). Here, such rewriting is exactly what would be needed to transform §§ 16q and 62
into a substantive penalty provision. The canon cannot do this much work, and thus, we
disagree with the Court of Appeals’ application of it in this case.
51
Pinkney, 501 Mich at 287-288. The rule of lenity offers another potential prism through
which to view our result, although applying this interpretive principle here is unnecessary
and we decline to do so. The rule of lenity stands for the proposition that penal laws are to
be strictly construed, with all doubts resolved in a defendant’s favor. Bell v United States,
19
C. APPLICATION
Because the sentencing guidelines do not apply, our decision in Arnold I controls
the sentencing of individuals convicted of an indecent-exposure offense under § 335a as
sexually delinquent persons. A court may impose (1) the applicable penalty laid out in
§ 335a(2)(a) or (b), along with any applicable sentence enhancements or (2) the “1 day to
life” sentence in § 335a(2)(c). In this case, defendant’s sentence is not to either of these
options. Because we hold that the guidelines are inapplicable, defendant is entitled to
resentencing. 52
349 US 81, 83; 75 S Ct 620; 99 L Ed 905 (1955). The rule applies only when the statutory
text is ambiguous, People v Wakeford, 418 Mich 95, 113-114; 341 NW2d 68 (1983), such
as when “a provision of the law . . . irreconcilably conflicts with another provision . . . .”
Mayor of Lansing v Pub Serv Comm, 470 Mich 154, 166; 680 NW2d 840 (2004) (cleaned
up). The statutes here clash, and defendant certainly believes the penalties in § 335a(2) are
more lenient than those under the guidelines. Whether he is correct is a question we need
not answer. The guidelines do not establish a penalty, they simply (and unsuccessfully)
attempt to describe the penalties authorized by § 335a(2)(c). They therefore give way to
§ 335a.
52
The parties dispute whether § 335a(2)(c) is a distinct felony. It is labeled as such in
§ 16q, but Arnold I, 502 Mich at 479-480, held that it was simply an alternative sentencing
option for a sexually delinquent person who was convicted of an underlying indecent-
exposure offense. We see no reason to reconsider this conclusion and, in any event, the
result we reach would be the same regardless of how § 335a(2)(c) is characterized.
Whether a sentencing option or a chargeable offense, the “1 day to life” scheme in
§ 335a(2)(c) conflicts with the guidelines. Those guidelines do not constitute an alternative
penalty that can be imposed on an individual convicted of an indecent-exposure offense as
a sexually delinquent person.
Our holding today also renders it unnecessary to resolve the constitutional question
raised in our grant order. See Arnold III, 505 Mich at 1001. In addressing the constitutional
issue, the concurrence implies that our order granting leave in this case did not request
briefing on the interpretation of the statutes, which forms the basis for our holding. See
post at 2, 20. But that is simply incorrect. The Court of Appeals below directly addressed
the interpretation of the relevant statutes, and our grant order asked whether the offense of
20
IV. CONCLUSION
This is not a typical criminal case. It has taken defendant two trips to this Court to
get a clear answer on what sentence he faces for his conviction under § 335a(2)(c). The
core confusion has come from the lower courts’ construction of §§ 16q and 62 of the
guidelines as both creating a substantive penalty and guiding its imposition. But we have
never interpreted the sentencing guidelines as establishing substantive penalties. And a
close of reading of §§ 16q and 62 reveals that, contrary to the decisions below, these
guidelines should be interpreted no differently from the rest. While the “1 day to life”
sentence in § 335a(2)(c) is inconsistent with the sentences contemplated by the guidelines
in §§ 16q and 62, these latter provisions fail to establish any substantive penalties. As a
indecent exposure by a sexually delinquent person under § 16q is subject to the guidelines.
Arnold III, 505 Mich at 1001.
In any event, by avoiding this question, we adhere to our well-established principle
of deciding cases on nonconstitutional grounds when possible. See J&J Constr Co v
Bricklayers & Allied Craftsmen, Local 1, 468 Mich 722, 734; 664 NW2d 728 (2003) (“This
Court will not unnecessarily decide constitutional issues, . . . and it is an undisputed
principle of judicial review that questions of constitutionality should not be decided if the
case may be disposed of on other grounds.”). Avoiding unnecessary constitutional issues
protects the separation of powers and is a central component of the concept of judicial
power. See Rescue Army v Muni Court of Los Angeles, 331 US 549, 569-571; 67 S Ct
1409; 91 L Ed 1666 (1947); Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich
608, 614-615; 684 NW2d 800 (2004), rev’d on other grounds by Lansing Schs Ed Ass’n v
Lansing Bd of Ed, 487 Mich 349 (2010). A decision on constitutional grounds—unlike the
one we reach today—places limitations on the Legislature’s power and should not be done
unless necessary to the case. The concurrence fails to show that this course is necessary.
In reaching the constitutional issue, the concurrence assumes that the Legislature intended
some change in meaning but never decides whether the Legislature actually accomplished
that change in the statutory text. Essentially, the concurrence assumes an interpretation of
the statute in order to address whether the statute represents an unconstitutional
amendment. Suffice it to say, this is not our usual approach. See Washtenaw Co v State
Tax Comm’n, 422 Mich 346, 371; 373 NW2d 697 (1985) (“[W]henever possible,
interpretations that result in constitutional invalidity will be avoided.”).
21
result, defendants found guilty under § 335a(2)(c) can be sentenced to the penalties in
§ 335a, along with any applicable enhancements, as discussed in our opinion in Arnold I.
Accordingly, we reverse the Court of Appeals’ judgment to the contrary and remand for
resentencing consistent with this opinion.
David F. Viviano
Brian K. Zahra
Richard H. Bernstein
Elizabeth M. Welch
22
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 160046
LONNIE JAMES ARNOLD,
Defendant-Appellant.
CLEMENT, J. (concurring in the judgment).
I agree with the result reached by the majority—defendant must either be given a
term-of-years sentence under MCL 750.335a(2)(b), or a “1 day to life” sentence under
MCL 750.335a(2)(c). Because his sentence of 25 to 70 years in prison exceeds the
permissible term of years sentence authorized by MCL 750.335a(2)(b) (as potentially
enhanced by being a fourth-offense habitual offender, MCL 769.12(1)(c)), it is invalid.
To reach this result, we must overcome a formidable obstacle: the sentencing
guidelines, 1998 PA 317—a formal expression of legislative intent—amended the Code of
Criminal Procedure, MCL 760.1 et seq., in such a way as to appear to authorize defendant’s
sentence. This Court must provide an answer for why the trial court’s compliance with the
sentencing guidelines is not sufficient to authorize defendant’s sentence. The Michigan
Constitution provides a tool that, although used infrequently, is purpose-built for
overcoming this obstacle: Const 1963, art 4, § 25, which requires that any legislative intent
to change the punishments for this crime be expressed in a particular way to be legally
effective. In the name of constitutional avoidance, the majority refuses to use this tool,
instead asserting that it has “uncover[ed] the ordinary meaning of the guidelines” and, in
doing so, concludes that a portion of MCL 777.16q is “nugatory,” an admittedly “unusual
result” which is still “the unmistakable meaning of” the sentencing guidelines. I prefer to
resolve the case on the basis (1) presented to us by the parties, (2) on which we granted
leave, 1 and (3) which most clearly has the power to nullify the application of a duly enacted
statute: the guidelines cannot authorize defendant’s sentence because that result would
indirectly amend MCL 750.335a in violation of Const 1963, art 4, § 25.
The first problem we confronted in this case was the somewhat-confusing “1 day to
life” sentence the Legislature provided for when it adopted the “sexually delinquent
person” scheme in 1952. As we described when this case was last before us, this option to
impose a “1 day to life” sentence on convicted individuals had an established meaning
when it was adopted. There was a collection of predicate offenses, each of which had
certain term-of-years punishments expressed in the Michigan Penal Code, MCL 750.1 et
seq.; if an individual was convicted of being a sexually delinquent person at the time of
1
The majority insists that I am “simply incorrect” to question whether “the basis for [its]
holding” was in our grant order. We granted leave on “whether indecent exposure by a
sexually delinquent person is a distinct felony ‘enumerated’ in the Michigan Penal Code
and subject to the sentencing guidelines, or whether the offense is subject to the sentencing
guidelines regardless because it is set forth in MCL 777.16q as a listed felony.” People v
Arnold, 505 Mich 1001, 1001 (2020). The majority’s conclusion that MCL 777.16q does
not purport to express a legislative intention of a substantive punishment for this offense is
not, in my view, responsive to that question, and even if a very broad interpretation of our
grant order encompassed the majority’s reasoning, nothing like that reasoning can be found
anywhere in the parties’ briefing. I do not believe we are obliged to confine ourselves to
the parties’ briefs where neither party has presented the Court with arguments the Court
believes are correct—we ought not allow poor party presentation to compel us to make bad
law—but where the parties’ presentation of the case presents a legally proper solution, I
think it is preferable for us to address the case as it has been presented.
2
committing the predicate offense, the individual could also be sentenced to a nonmodifiable
sentence of “1 day to life” at the option of the sentencing court. This “1 day to life”
sentence was nonmodifiable because it was intended to be therapeutic rather than punitive
and thus represented a sort of judicial forfeiture of control over the amount of time a
defendant would serve. Instead, a defendant would be incarcerated until experts
determined he could safely rejoin society. The choice turned on whether, in the judgment
of the sentencing court, the offender suffered from what the law treated as a mental health
problem. See generally People v Arnold, 502 Mich 438; 918 NW2d 164 (2018). Under
this system, the trial court here had the choice of either giving defendant a “1 day to life”
sentence or a term-of-years sentence. If it opted for a term-of-years sentence, the statutory
maximum for defendant’s offense is two years, MCL 750.335a(2)(b), and his status as a
fourth-offense habitual offender would allow the trial court to extend the maximum from
two years to as many as 15 years (180 months), MCL 769.12(1)(c). Under MCL
769.34(2)(b), defendant’s minimum sentence could not be more than 2/3 of the maximum
sentence, making his absolute “maximum minimum” a 120-month minimum sentence.
Defendant’s 25- to 70-year sentence clearly is not a permissible sentence under this regime.
The problem arises when these sentencing options in MCL 750.335a intersect with
how the sentencing guidelines direct trial courts to sentence those convicted of defendant’s
offense. The sentencing guidelines consist of several components. First, there is a massive
series of tables listing essentially every felony in Michigan, its statutory maximum penalty,
and its classification level. The classification level generally corresponds with the
maximum penalty:
3
In general, though there are several hundred exceptions, an offense
punishable by life imprisonment is in class A, a 20-year offense is in class B,
a 15-year offense is in class C and a 10-year offense is in class D. Similarly,
a five-year offense is in class E, a four-year offense is in class F, and two-
year offenses are in class G.[2] There is also a class H. [Hammond, The Top
50 Felonies: Useful Statistics Regarding the Most Frequently Charged
Offenses, 81 Mich B J 20, 22 (December 2002).]
There is also a series of “offense variables” (OVs) and “prior record variables” (PRVs),
which direct the sentencing judge to assess points to the defendant based on various aspects
of the offense and the defendant’s criminal history. Once those OV and PRV scores are
determined, there are a series of grids for each of the A 3 through H classification levels.
The judge uses the OV and PRV scores to determine where the defendant falls on the
appropriate grid, and the cell at the intersection of the defendant’s OV and PRV levels
recommends a range of minimum sentences. That range of sentences is supplemented by
the defendant’s status as a habitual offender, if applicable. MCL 777.21(3). A court may
sentence a defendant to a minimum sentence outside of the recommended range, but as
noted, the minimum sentence imposed still cannot be more than 2/3 of the statutory
maximum, MCL 769.34(2)(b).
When the sentencing guidelines are applied to defendant, they call for a very
different sentence than the choice of either “1 day to life” or a 15-year maximum.
2
The exceptions almost all appear to move downward—making what would otherwise be
a higher-classification offense based on its statutory maximum a lower classification
instead. Perhaps the only contrary exception is CSC-III, which is punishable by a
maximum of 15 years in prison (thus appearing to be a Class C felony), but has been made
a Class B felony. See MCL 777.16y.
3
There is also a special “M2” class for second-degree murder, MCL 777.16p, which is also
a “life or any term of years” offense, MCL 750.317, but it gets its own grid with amplified
minimum sentences, MCL 777.61.
4
Defendant’s indecent-exposure offense is on the master list of “included felonies” and is
listed as a Class A offense with a “Stat Max” (statutory maximum sentence) of “Life.”
MCL 777.16q. The trial court assessed defendant 45 OV points and 140 PRV points.
These scores put him in cell F-III on the Class A grid, which corresponded with a
recommended minimum sentence of between 135 and 225 months. MCL 777.62. Because
defendant is a fourth-offense habitual offender, the high end of that range was doubled,
MCL 777.21(3)(c), meaning the guidelines recommended that the trial court give defendant
a minimum sentence of between 135 and 450 months. The trial court sentenced defendant
consistently with the recommended range to a minimum of 300 months in prison—a 25-
year minimum rather than a 15-year maximum. Indeed, even the lowest minimum sentence
in cell F-III on the Class A grid (135 months) is longer than the maximum minimum
sentence that would otherwise be allowed if defendant’s offense were treated as a two-year
felony with the maximum enhancement for a fourth-offense habitual offender (120 months,
or 2/3 of 180 months).
The most likely cause of these radically disparate outcomes is that in the 46 years
between the “1 day to life” system being enacted in 1952 and the Legislature’s adoption of
the guidelines in 1998, its institutional memory simply failed. It saw the language “1 day
to life” in MCL 750.335a, concluded that it meant the equivalent of “life or any term of
years”—i.e., that any sentence was viable, up to and including “life”—and thus listed
“indecent exposure by a sexually delinquent person” as a Class A felony with a statutory
maximum of “Life.” This was a forgivable mistake; the “1 day to life” scheme is an
unusual one, while “life or any term of years” is the routinely stated punishment in our
5
criminal laws for the most serious crimes. 4 Nevertheless, it was a mistake—MCL 767.61a
describes “1 day to life” as an “alternate sentence,” and decades ago we noted that “the
Legislature introduced language into several previously existing categories of sexual
offenses to allow prosecution for sexual delinquency.” People v Winford, 404 Mich 400,
406; 273 NW2d 54 (1978) (emphasis added). The “sexually delinquent person” system
did not create any new crimes; rather, it added an alternative punishment for certain
preexisting crimes. When the Legislature listed “[i]ndecent exposure by a sexually
delinquent person” in MCL 777.16q, it erroneously listed an offense which, on a proper
reading of MCL 750.335a, did not exist as a distinct crime.
The issue then becomes how we are to react to this failure of the Legislature’s
institutional memory. The lynchpin of the majority’s analysis, it appears to me, is that the
“ordinary meaning” of MCL 777.16q is that it does not mean what it says, and therefore,
the Legislature did not intend to say what it said. The majority asserts:
The only possible textual basis for the term-of-years sentence
[defendant received] is a reference in § 16q to “Life” as the “Stat
Max” . . . for convictions under § 335a(2)(c). Nothing in the text indicates
that the term “Life” in § 16q can encompass any term of years . . . . One
would have to interpret “Life” to mean “life or any term of years.” . . . At
best, the reader would need to work through a series of inferences in order to
conclude that “Life” could also mean “any term of years”: (1) the guidelines
grid provides for a minimum term-of-years sentence for convictions under
§ 335a(2)(c); (2) but life tails (i.e., sentences of a minimum number of years
with a maximum of life) are prohibited by MCL 769.9(2); (3) therefore, a
defendant may not be sentenced to a minimum term of years with a maximum
4
Examples abound and include second-degree murder, MCL 750.317, and armed robbery,
MCL 750.529(2). Some use equivalent variations, such as in the case of assault with intent
to murder, where the punishment is “life or any number of years.” MCL 750.83. The very
most serious crime is first-degree murder, which has a mandatory sentence of life without
the possibility of parole. MCL 750.316(1).
6
of life; (4) it would then follow that the maximum must be “life or any term
of years.”
The problem, in my view, is that this “series of inferences” is commonplace throughout the
sentencing guidelines. As a general matter, Class A felonies are the “life or any term of
years” offenses. 5 When reviewing the guidelines’ list of included felonies, it does not call
for much of an interpretive leap “to interpret ‘Life’ to mean ‘life or any term of years,’ ”
seeing as this is what “Life” in the “Stat Max” column does mean throughout the
guidelines’ list of included felonies. The majority suggests that “Life” in the “Stat Max”
column has a range of meanings, but this is not so—absent these “1 day to life” sexual
delinquency offenses and one objective error, 6 every offense with a “Stat Max” of “Life”
is a “life or any term of years” offense. And the intention to treat listed Class A felonies
with a “Stat Max” of “Life” as “life or any term of years” crimes is clearly communicated
by the recommended minimum sentences on the Class A grid; as noted, the recommended
sentences there cannot be reconciled with a 2- or even a 15-year maximum sentence. 7
“Life” as the “Stat Max” is used throughout the guidelines as shorthand for offenses whose
maximum sentence is “life or any term of years.”
5
Class A also includes some offenses which are not life offenses but have maximum
punishments greater than 20 years. See, e.g., MCL 777.13m (listing as Class A offenses
certain controlled substance offenses with maximum punishments of 25 and 30 years).
6
Using an explosive to facilitate a burglary is a crime with a 15-year minimum and 30-
year maximum, MCL 750.112, but its “Stat Max” is listed as “Life,” MCL 777.16f. Here,
there is no possible argument that the adoption of the sentencing guidelines has indirectly
changed the meaning of existing text in MCL 750.112—“30 years” and “life” simply
cannot be reconciled in the way that “life” and “1 day to life” could be.
7
There is one “life or any term of years” offense listed as a Class B felony: perjury
committed under MCL 767A.9(1)(b). See MCL 777.17f.
7
If we were to accept that the Legislature meant what it said when it adopted MCL
777.16q, the next question would be whether MCL 777.16q can be reconciled with MCL
750.335a. Arguably, it can. The “1 day to life” phrasing the Legislature used in 1952 is
malleable and susceptible to multiple meanings. It is not ungrammatical to read “1 day to
life” as encompassing all possible carceral sentences, including the 25- to 70-year sentence
defendant is serving, inasmuch as 25 years and 70 years both fall within a range of at least
1 day and at most the remainder of the defendant’s natural life. When this case was last
here, we held that this was not the correct reading of that language at the time it was enacted
in 1952 because “1 day to life” is a nonmodifiable sentence. But the question then
becomes, when MCL 777.16q listed defendant’s offense as a distinct felony to be sentenced
on the Class A grid, did that have the effect of changing the meaning of “1 day to life” in
MCL 750.335a? After all, “the legislative power of the State of Michigan is vested in a
senate and a house of representatives.” Const 1963, art 4, § 1. When the state legislates,
it changes the law. Under some circumstances, “the most recent expression of this state’s
public policy” controls. Citizens Ins Co of America v Federated Mut Ins Co, 448 Mich
225, 232; 531 NW2d 138 (1995). Why not here? As the Court of Appeals noted, when
aggravated indecent exposure was added to MCL 750.335a, it was tie-barred to a bill
adding an entry for aggravated indecent exposure to MCL 777.16q which maintained
“indecent exposure by a sexually delinquent person” as an independent offense. People v
Arnold (On Remand), 328 Mich App 592, 604-606; 939 NW2d 690 (2019). This may have
been the Legislature misinterpreting its own work from 1952, but by re-emphasizing that
misinterpretation, can the Legislature have changed the meaning of “1 day to life” to make
it the equivalent of “life or any term of years”?
8
Given that I am concurring in the result reached by the Court, obviously my answer
to this question is “no.” We are required to negate this expression of legislative intent
because Michigan constitutional law prevents the adoption of a provision of the Code of
Criminal Procedure (i.e., MCL 777.16q) from indirectly amending a provision of the
Michigan Penal Code (i.e., MCL 750.335a(2)(c)) in this manner. Since the ratification of
the Michigan Constitution of 1850, statutory reform in Michigan has been boxed in by two
related constraints. First, public acts must not “embrace more than one object,” which must
be expressed in an official title to the statute. Const 1963, art 4, § 24. 8 Second, once a
statute is enacted, it cannot “be revised, altered or amended by reference to its title only”;
to make changes, “[t]he section or sections of the act altered or amended shall be re-enacted
and published at length.” Const 1963, art 4, § 25. 9 These are respectively known as the
“Title-Object” and “Reenact-Publish” clauses of the Michigan Constitution. See Midland
Twp v State Boundary Comm, 401 Mich 641, 651, 657; 259 NW2d 326 (1977). The
combination of the Title-Object and Reenact-Publish clauses forces the Legislature to
organize our law into subject-specific “silos.” These silos can be quite broad, such as the
Michigan Penal Code, 1931 PA 328, and the Code of Criminal Procedure, 1927 PA 175;
or they can be narrow, such as the silo governing work release for inmates in county jails,
1962 PA 60. However, once so organized, changes to the material in each silo must come
8
See also Const 1850, art 4, § 20; Const 1908, art 5, § 21.
9
See also Const 1850, art 4, § 25; Const 1908, art 5, § 21. Although they were five sections
apart in the Constitution of 1850, the Constitutional Convention of 1908 recognized the
close relationship between them and essentially ratified our post-1850 caselaw by
reorganizing both into the same section. In our current Constitution, they are similarly
separate but consecutive sections.
9
in the form of what we might call “redline edits” to that material. A violation of the
Reenact-Publish Clause is generally known as an “amendment by reference.” See Advisory
Opinion re Constitutionality of 1972 PA 294, 389 Mich 441, 475; 208 NW2d 469 (1973).
To understand how we have arrived at this rule, we must understand how the
Reenact-Publish Clause made it into our Constitution. By its terms, it prohibits statutory
enactments in the federal style formerly used in Michigan. Here is an example:
Section 1. Be it enacted by the Senate and House of Representatives
of the State of Michigan, That section one of an act entitled “an act to
incorporate the Detroit and Howell Plank Road Company,” approved April
3, 1848, be and the same is hereby amended, by inserting after the word
“from,” in the eleventh line of said section, the following words: “the west
line of Woodward Avenue in;” and also by inserting after the word
“Oakland,” in the seventeenth line of said section, the words, “Provided, No
toll gate shall be placed within the limits of said city.” [1850 PA 321.]
“Such an amendment requires an examination and comparison of the prior act to
understand what change was effected.” 1A Singer & Singer, Sutherland Statutory
Construction (7th ed), § 22:16, p 304. Thus, in this example, the reader could not tell what
the state of the law was without consulting the 1848 Public Acts. “Such an enactment is
properly termed a ‘blind’ amendment.” Id. 10 The Reenact-Publish Clause requires, instead
of a description of what words are being stricken or inserted, that the finished product be
published and presented to the public. “Most courts apply the constitutional provision only
to those acts which are amendatory in form,” id. § 22:18, p 308, meaning that in most states,
10
Provisions banning this practice in state constitutions are common. “Only the Federal
Congress and the Iowa legislature still employ ‘blind’ amendments.” Sutherland, § 22:16,
p 304 n 21.
10
the reenact-publish requirement goes no further than prohibiting the form of “blind”
amendments.
Michigan and a few other states have interpreted their reenact-publish clauses to go
one step beyond banning the form of blind amendments to require that a statute that amends
some existing law in substance must be enacted as a redline edit to that law. See id. (“[I]n
a minority of jurisdictions, acts not purporting to amend have been held amendatory
because in substance they altered or modified a prior act and were not complete within
themselves.”). 11 “The purpose of art 4, § 25 is to give notice and certainty. Obviously, if
reference to the title only is not enough for notice and certainty, giving no reference at all
is a fortiori not enough.” Advisory Opinion re 1972 PA 294, 389 Mich at 518 (opinion by
WILLIAMS, J.). If it is a problem for the Legislature to acknowledge some earlier law and
only describe the changes being made to that law—without displaying the finished work
product—it is even worse for the Legislature to deliberately ignore the existence of prior
law and pass some new enactment that contradicts it.
Even though an act professes to be an independent act and does not
purport to amend any prior act, still if, in fact, it makes changes in an existing
act by adding new provisions and mingling the new with the old on the same
11
The constitutional language does not require that actual redline be published by
presenting stricken language in strikethrough text and the added language in boldface;
instead, what is required is that the finished, post-amended text be published. As a result,
“[t]he constitutional prohibition against blind amendments may not have achieved its
objective” because “[t]he change of a single word buried in a long and cumbersome section
may be as effectively shielded from legislative and public scrutiny as it would be by blind
amendment.” Sutherland, § 22:16, pp 304-305. When I refer to “redline edits,” I refer to
the requirement in our caselaw that generally requires that the Legislature, to change the
meaning of statutory text, must edit the text to be changed rather than enact some other
inconsistent provision.
11
subject so as to make of the old and the new a connected piece of legislation
covering the same subject, the latter act must be considered as an amendment
of the former and as within the constitutional prohibition. [People v Stimer,
248 Mich 272, 293; 226 NW 899 (1929) (POTTER, J., dissenting) (quotation
marks and citation omitted).][12]
As a result, once the law is in a particular form, changes to it must be redline edits to the
existing law.
Of course, in some sense any new law has an effect on all existing law. If
republication of redline-edited statutory text were required when any arguable change to
existing law were being effected by a new law, vast swathes of the law would need to be
republished every time any new law was adopted. We recognized this long ago:
If, whenever a new statute is passed, it is necessary that all prior statutes,
modified by it by implication should be re-enacted and published at length
as modified, then a large portion of the whole code of laws of the State would
require to be republished at every session, and parts of it several times over,
until, from mere immensity of material, it would be impossible to tell what
the law was. [People ex rel Drake v Mahaney, 13 Mich 481, 496-497
(1865).]
As a result, we have articulated an important exception to the requirement that changes to
existing law come in the form of a redline edit: such edits are not required when a change
comes in the form of a new law that is “complete in itself.”
This constitutional provision must receive a reasonable construction,
with a view to give it effect. The mischief designed to be remedied was the
enactment of amendatory statutes in terms so blind that legislators
themselves were sometimes deceived in regard to their effect, and the public,
from the difficulty in making the necessary examination and comparison,
failed to become apprised of the changes made in the laws. An amendatory
act which purported only to insert certain words, or to substitute one phrase
12
In Alan v Wayne Co, 388 Mich 210, 277; 200 NW2d 628 (1972), we said that the majority
opinion in Stimer “seems to be another case where hard facts (public health and safety)
make bad law” and expressed agreement with Justice POTTER’s dissent.
12
for another in an act or section which was only referred to but not re-
published, was well calculated to mislead the careless as to its effect, and
was, perhaps, sometimes drawn in that form for that express purpose.
Endless confusion was thus introduced into the law, and the constitution
wisely prohibited such legislation. But an act complete in itself is not within
the mischief designed to be remedied by this provision, and cannot be held
to be prohibited by it without violating its plain intent. [Id. at 497.]
This then raises the question: what is “an act complete in itself”? Generally
speaking, “[a] statute is complete within itself when it is not necessary to refer to any other
statute to understand its scope and meaning.” Sutherland, § 22:21, p 316.
The character of an act, whether amendatory or complete in itself, is
to be determined not by its title, alone, nor by the question whether it
professes to be an amendment of existing laws, but by comparison of its
provisions with prior laws left in force, and if it is complete on the subject
with which it deals it will not be subject to the constitutional objection, but
if it attempts to amend the old law by intermingling new and different
provisions with the old ones or by adding new provisions, the law on that
subject must be regarded as amendatory of the old law and the law amended
must be inserted at length in the new act. [Stimer, 248 Mich at 293 (POTTER,
J., dissenting) (quotation marks and citation omitted).]
There is thus an undeniable “know it when you see it” quality to the “act complete in itself”
requirement. “Arguably, no act is an ‘island entire of itself.’ Every act draws on some
other act or acts—perhaps an appropriation act or the Revised Judicature Act or an act
establishing a unit of government. ‘Completeness’, then, is necessarily a flexible concept.”
Advisory Opinion re 1972 PA 294, 389 Mich at 495-496 (LEVIN, J., concurring). “Statutes
to which this phrase has been applied differ greatly in the extent to which reference to prior
statutes is necessary,” and “courts in different jurisdictions have reached inconsistent
results.” Sutherland, § 22:21, pp 317, 318. We must look to our own cases to understand
how this Court has understood the notion of an act being “complete in itself.”
13
Our seminal case on this topic is Mahaney. In that case, the Legislature had enacted
a city charter for Detroit, 1857 PA 55, and had adopted certain amendments to that charter
thereafter, 1861 PA 136. Later yet, it adopted a law providing for a “police government”
for the city. 1865 PA 78. In doing so, the 1865 law “modifie[d] the powers and duties of
sheriffs, constables, water and sewer commissioners, marshals, mayors and justices, and
impose[d] new duties upon the executive and the citizen,” Mahaney, 13 Mich at 497, and
thus made implicit changes to the statement of those powers and duties from the 1861 law.
The 1865 law was alleged to violate the Reenact-Publish Clause. We upheld the 1865 law,
but our rationale in doing so was not that the constitutional language went no further than
prohibiting the form of blind amendments. Rather, we said that the 1865 law was
constitutional because it was an “act complete in itself”—it told the reader everything the
reader needed to know to implement its single object, and while it incidentally affected
other laws, they were reconciled via the normal process of statutory interpretation. Id. Or,
as we put it when the no-fault law was challenged as violating the Reenact-Publish Clause,
“It is a complete act and does not confuse or mislead, but publishes in one act for all the
world to see what it purports to do.” Advisory Opinion re 1972 PA 294, 389 Mich at 476.
An example of a case involving a statute that was not “complete in itself”—and thus
violated the Reenact-Publish Clause—is Mok v Detroit Bldg & Savings Ass’n No. 4, 30
Mich 511 (1875). In Mok, the Legislature had adopted a law “to authorize the formation
of corporations for mining, smelting or manufacturing iron, copper, mineral coal, silver or
other ores or minerals . . . .” 1853 PA 41, title. It then passed a law “to authorize the
formation of corporations for building and leasing houses and other tenements,” 1855 PA
133, title, but this act was only a single paragraph and provided that the 1853 rules for the
14
organization of mining corporations were extended to corporations for leasing houses.
Later yet, the Legislature passed a law “to authorize the incorporation of building and
savings’ associations,” 1869 PA 152, title, which incorporated by reference the 1855
requirements for corporations for leasing houses (and which, in turn, incorporated by
reference the 1853 law for mining corporations). The 1869 law thus “referred parties in
this circuitous manner to . . . [the 1853 law] for the requirements in organization,” but it
also “undertook at the same time to dispense with some things required by [the 1853 law],
and to make some changes” suitable for the type of corporate entity the 1869 law
contemplated creating. Mok, 30 Mich at 521. The result was that
[t]he act of 1853 has been, for the purposes of building and savings
associations, incorporated in and made a part of the act of 1869, but with
several changes and modifications, and these not made by the re-enactment
of the sections changed or modified, but only by indicating the extent of the
changes, leaving the parties concerned to fit the new act to the old as best
they may. It is unfortunate for those who have had occasion to attempt it,
that this case illustrates so forcibly the evils of this species of legislation; for
on many points it is impossible, in seeking for the legislative intent, to get
beyond the regions of pure conjecture. [Id. at 523.]
We held the 1869 law unconstitutional. “While the act of 1853 [was] left untouched as to
the organizations contemplated by its provisions, it is, for the purposes of building and
savings associations, altered in most important particulars in disregard of the constitutional
requirement.” Id. at 529.
What has been attempted here is, to duplicate an act, but at the same time to
accommodate it by indirect amendments to a new class of cases, in disregard
of the constitutional provision which requires each act of legislation to be
complete in itself, and forbids the enactment of fragments which are
incapable of having effect or of being understood until fitted in to other acts
after by construction or otherwise places have been made for them. No such
legislation can be sustained. [Id.]
15
Cases in which a statute survives a constitutional challenge (as in Mahaney), and
cases in which a statute is held unconstitutional (as in Mok), do not exhaust the possibilities
under our caselaw concerning the Reenact-Publish Clause. “The Mahaney and Mok
cases . . . mark two outer boundaries. Between the two, further lines can be drawn.”
Advisory Opinion re 1972 PA 294, 389 Mich at 496 (LEVIN, J., concurring) (citation
omitted). In Alan v Wayne Co, 388 Mich 210; 200 NW2d 628 (1972), we said that one
statute could have an unconstitutional effect on another, even if both statutes were
themselves constitutional. The facts of Alan were convoluted, but the dispute concerned
whether Wayne County could, via a shell game, pledge its full faith and credit to guarantee
payment on bonds that would finance construction of a replacement for Tiger Stadium. To
build the stadium, Wayne County had established a “Stadium Authority” under the building
authority act, 1948 (1st Ex Sess) PA 31. The plan was that the Authority would issue bonds
to pay for the stadium and then lease the new stadium to Wayne County, whose “lease
payments” would cover the costs of the bond payments. However, the Authority would
also sublease the stadium to the Tigers, and these payments, from the Tigers to the
Authority, would cover the Authority’s bond obligations; the lease to and payments from
the county were only a backstop to ensure the bondholders were paid in the event that
revenue from the Tigers was inadequate.
The fundamental inquiry in Alan was whether the Authority was issuing revenue
bonds—which are paid for by revenues generated by the improvement they finance—or
tax bonds, which are guaranteed by the full faith and credit of the government to pay its
obligations as backed by its authority to impose taxes to generate sufficient revenue. The
Authority pointed to the Revenue Bond Act (RBA), 1933 PA 94, and the aforementioned
16
building authority act as sources of its power to issue bonds, but both statutes only allowed
it to issue revenue bonds. If the bonds that it contemplated selling were going to be backed
by the county’s full faith and credit, that would be a tax bond that the Authority did not
have the power to issue, which would scuttle the project. And the ultimate guarantee that
the bond payments would be made in the event that the sublease to the team was inadequate
were the county’s lease payments to the Authority. The Authority therefore needed the
county’s lease payments to be construed as a form of revenue derived from the use of the
stadium and not as a simple promise from the county to use its taxing authority to generate
sufficient funds if the Authority was going to have the power to issue the bonds.
We first analyzed the lawfulness of the arrangement under the RBA. As its name
implies, bonds issued under the RBA must be revenue bonds—they can be satisfied “solely
from the net revenues derived from the operation of the public improvement.” MCL
141.107(2). The RBA therefore does not allow the government’s full faith and credit to be
pledged to pay off bonds issued under it; only revenues derived from the operation of the
public improvement can be so used. We held that the true user of the stadium was the
Tigers, not the county, and therefore the county’s promise of nominal “lease” payments to
the Authority did not satisfy MCL 141.107(2) as “ ‘net revenues derived from the operation
of the public improvement.’ ” Alan, 388 Mich at 247-248. Because the county’s “lease”
payments to the Authority did not qualify as revenue derived from the use of the stadium—
since the county was not, in any realistic sense, the user of the stadium—the RBA did not
authorize the Authority to issue bonds that were backed by those “lease” payments.
The Authority argued that even if the RBA did not authorize the bonds at issue, the
building authority act did. The building authority act authorized the Authority to “ ‘issue
17
self-liquidating revenue bonds in accordance with’ ” the RBA, and as with the RBA,
“ ‘[s]uch bonds” were to be “ ‘payable solely from the revenues of such property.’ ” Alan,
388 Mich at 253-254. The building authority act thus incorporated the RBA by reference,
but there was an important proviso: under the building authority act, the phrase “ ‘revenues
of such property’ ” was to “ ‘be deemed to include payments made under any lease or
contract for the use of such property.’ ” Id. We had already held that the county’s lease
payments did not qualify as “revenue” under the RBA because the county was not the true
user of the stadium. But when dealing with a bond issued under the building authority act,
the statute decreed that such payments were to “be deemed” a form of revenue. In other
words, the Authority argued that even if the county’s “lease payments” could not be treated
as revenue that supported the bonds under the RBA, those same “lease payments” could be
treated as revenue that supported the bonds under the building authority act.
In Alan, 388 Mich at 236, we rejected “[t]his effort to treat tax bonds as revenue
bonds,” recognizing it for the shell game it was. We concluded that any bonds supported
by the county’s “lease” payments to the Authority were, in effect, tax bonds—the county’s
full faith and credit was behind them. Further, we said that the building authority act
incorporated the RBA by reference, meaning it only allowed for bonds that complied with
the RBA. Id. at 265-266. For the building authority act to indirectly give tax bonds the
blessing of the RBA was an unconstitutional amendment by reference of the RBA. What
is notable about Alan is this: while it held that the challenged section of the building
authority act was an amendment by reference of various sections of the RBA in violation
of the Reenact-Publish Clause, it did not hold that the building authority act itself was
18
unconstitutional. It was the building authority act’s effect on the RBA that was
objectionable.
In my view, our caselaw establishes that the Reenact-Publish Clause exists precisely
to prevent the sort of confusion that exists in this case. Statutes may have only a single
purpose, which groups our laws into “silos” whose contents are related; and, once our law
has been organized into those silos, adjustments must be made by redline edit, unless the
adjustment is in the form of an act “complete in itself” that thoroughly treats the subject in
some new way—building some new silo. That is not what we have here. In this case, we
are dealing with two silos established by the Legislature: the Michigan Penal Code and the
Code of Criminal Procedure. As required by the Title-Object Clause, the single object of
the Michigan Penal Code is defining crime—as it says in its title, it is an act “to define
crimes and prescribe the penalties and remedies . . . .” 1931 PA 328, title. The single
object of the Code of Criminal Procedure is to establish the processes by which criminal
cases are to be handled, one aspect of which is pronouncing sentence; as it says in its title,
it is an act “to provide for judgments and sentences of persons convicted of criminal
offenses and ordinance violations . . . .” 13 1927 PA 175, title. The Legislature placed the
13
The majority notes that MCL 777.16q is found in the Code of Criminal Procedure and
points to this as a “strong indication that the guidelines did not smuggle a substantive
penalty provision” into our law. By casting this as a mere matter of statutory interpretation,
however, the majority obscures what I believe is a necessary recourse to the state
Constitution to nullify what the Legislature has enacted. Both the Title-Object and
Reenact-Publish requirements are more than mere guides to reading statutory text; they are
mandatory constitutional requirements. Given the close relationship between the concepts,
however, it seems that defendant here could also have framed his challenge to his sentence
as a violation of the Title-Object Clause rather than an unconstitutional amendment by
reference.
19
definition of indecent exposure in the Michigan Penal Code and provided punishments for
it, including the unmodifiable “1 day to life” sentencing option. The silos having been
constructed, the Legislature could only make changes within each one by amending the
contents of that silo. As a result, the instructions in the Code of Criminal Procedure for
how to sentence someone convicted of this offense cannot indirectly change what the
sentencing options are as provided by the Michigan Penal Code. To the extent that they
do so, that would be an unconstitutional effect of the Code of Criminal Procedure on the
Michigan Penal Code—just as in Alan.
While the boundaries of our “amendment by reference” caselaw are not defined with
precision, I believe this situation is clearly the sort of lawmaking our doctrine prohibits. I
therefore find this constitutional objection to the effect of MCL 777.16q on the meaning of
MCL 750.335a a more compelling rationale for negating the expressed intent of the
Legislature than the majority’s explanation. It also has the benefit of being the issue briefed
by the parties and on which we granted leave. That said, we both come to the same
conclusion: if defendant is to be incarcerated, he must be given either an ordinary term-of-
years sentence that complies with MCL 750.335a(2)(b) (as potentially modified by a
habitual-offender enhancement), or a 1-day-to-life sentence under MCL 750.335a(2)(c).
The sentence he actually received complies with neither of these options, so I concur with
the judgment vacating his sentence and remanding for resentencing to one or the other of
these options at the trial court’s discretion.
Elizabeth T. Clement
Bridget M. McCormack
Megan K. Cavanagh
20