1.7Statutory Construction and Interpretation
“The rules of statutory construction apply to both statutes and administrative rules.” Airgas Specialty Prod v Mich Occupational Safety and Health Admin, 338 Mich App 482, 495 (2021) (quotation marks and citation omitted). The rules of statutory construction also apply to “provisions of a home rule city charter[.]” Save Our Downtown v City of Traverse City, 343 Mich App 523, 534 (2022).
“In the construction of the statutes of this state, the rules stated in sections [MCL 8.3a to MCL 8.3w] shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature.” MCL 8.3. “All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” MCL 8.3a. MCL 8.5 provides for severability of a portion of an act found to be invalid by a court.
The Michigan Penal Code contains its own rule of construction: “The rule that a penal statute is to be strictly construed shall not apply to this act or any of the provisions thereof. All provisions of this act shall be construed according to the fair import of their terms, to promote justice and to effect the objects of the law.” MCL 750.2.
“When construing a statute, [a court’s] primary obligation is to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute.” People v Hill, 486 Mich 658, 667-668 (2010) (quotation marks and citation omitted). Courts must “construe a statute in light of the circumstances existing at the date of its enactment, not in light of subsequent developments. . . . The words of a statute must be taken in the sense in which they were understood at the time when the statute was enacted.” Cain v Waste Mgt, Inc (After Remand), 472 Mich 236, 246-247, 258 (2005) (quotation marks and citations omitted) (holding that where the statute at issue did not define the term “loss,” the court had to “ascertain the original meaning the word ‘loss’ had when the statute was enacted in 1912”); Daher v Prime Healthcare Services-Garden City, LLC, ___ Mich ___, ___ (2024) (“When interpreting a statute, [the Court’s] purpose is to ascertain and effectuate the legislative intent at the time it passed the act.”).1
“If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted.” Id. at ___ (quotation marks and citation omitted). “Because context is a primary determinant of meaning, [the Court] must always read the text as a whole, in view of its structure and of the physical and logical relation of its many parts.” Id. at ___ (cleaned up). “This critical word context embraces not just textual purpose but also (1) a word’s historical associations acquired from recurrent patterns of past usage, and (2) a word’s immediate syntactic setting[.]” Id. at ___ n 7 (quotation marks and citation omitted). “A statute’s history—the narrative of the statutes repealed or amended by the statute under consideration—properly forms part of its context[.]” Id. at ___ (cleaned up). “Indeed, courts must pay particular attention to statutory amendments, because a change in statutory language is presumed to reflect either a legislative change in the meaning of the statute itself or a desire to clarify the correct interpretation of the original statute.” Id. at ___ (quotation marks and citation omitted). “[T]his type of statutory history is . . . categorically different from ‘legislative acquiescence,’ in which the Legislature takes no action in response to a decision from [the Supreme Court].” Id. at ___ n 8. “Interpreting a statute through inaction is a highly disfavored doctrine of statutory construction; sound principles of statutory construction require that Michigan courts determine the Legislature’s intent from its words, not from its silence.” Id. (quotation marks and citation omitted).
“In discerning legislative intent, a court must give effect to every word, phrase, and clause in a statute, . . . [and] consider both the plain meaning of the critical word or phrase as well as its placement and purpose in the statutory scheme. The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended. If the language of a statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written.” Shinholster v Annapolis Hosp, 471 Mich 540, 549 (2004) (quotation marks and citations omitted). “A necessary corollary . . . is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 72 (2017) (quotation marks and citation omitted).
“A provision of law is ambiguous only if it irreconcilably conflict[s] with another provision or when it is equally susceptible to more than a single meaning.” In re Application of Indiana Mich Power Co for a Certificate of Necessity, 498 Mich 881, 881 (2015) (alteration in original; quotation marks and citation omitted). See Section 1.7(B)(2) for more information on ambiguity.
Courts must “avoid an interpretation that would render any part of the statute surplusage or nugatory.” State Farm Fire and Cas Co v Old Republic Ins Co, 466 Mich 142, 146 (2002). A court “may not rewrite the plain statutory language or substitute its own policy decisions for those decisions already made by the Legislature.” Slis v Michigan, 332 Mich App 312, 336 (2020).
While a statute “must be read as a whole,” “there is no reason its subsections cannot overlap.” Miller v Dep’t of Corrections, ___ Mich ___, ___ (2024). “Indeed, it is clear that they sometimes do.” Id. at ___. “Sometimes drafters do repeat themselves and do include words that add nothing of substance, either out of a flawed sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders approach.” Id. at ___ (cleaned up). “Or perhaps repetition might occur when drafters adopt language solely to comply with a federal mandate.” Id. at ___. “In such circumstances, any redundancies are properly viewed more in the nature of a belt-and-suspenders approach than as an indication that the Legislature intended to implicitly narrow the scope of the pre-existing provisions of the [statute].” Id. at ___.
“When a statute specifically defines a given term, that definition alone controls.” People v Butka, ___ Mich ___, ___ (2024) (quotation marks and citation omitted). “On the other hand, when terms are not expressly defined anywhere in the statute, they must be interpreted on the basis of their ordinary meaning and the context in which they are used.” Id. at ___ (quotation marks and citation omitted). “Additionally, when a term is not defined in a statute, the dictionary definition of the term may be consulted or examined because this assists the goal of construing undefined terms in accordance with their ordinary and generally accepted meanings.” Id. at ___. “A legal term of art, however, must be construed in accordance with its peculiar and appropriate legal meaning.” Id. at ___. When considering “a legal term of art, courts should ordinarily use a dictionary that is contemporaneous with the statute’s enactment.” Id. at ___ (cleaned up).
“[U]ndefined statutory terms are to be given their plain and ordinary meaning, unless the undefined word or phrase is a term of art.” People v Thompson, 477 Mich 146, 151-152 (2007); see also MCL 8.3a. A lay dictionary may be consulted “when defining common words or phrases that lack a unique legal meaning.” Thompson, 477 Mich at 151-152. “This is because the common and approved usage of a nonlegal term is most likely to be found in a standard dictionary, not in a legal dictionary.” Id. at 152. “[I]t is best to consult a dictionary from the era in which the legislation was enacted.” In re Certified Question, 499 Mich 477, 484-485 (2016). Additionally, in interpreting a word “as used in [a statute] ‘according to the common and approved usage of the language,’” as required under MCL 8.3a, courts may consult the Corpus of Contemporary American English, which is “a tool that can aid in the discovery of ‘how particular words or phrases are actually used in written or spoken English.’” People v Harris, 499 Mich 332, 347 (2016) (citation omitted).
When construing a statute that “was the result of a voter initiative, [the] goal is to ascertain and give effect to the intent of the electorate, rather than the Legislature, as reflected in the language of the law itself.”People v Kolanek, 491 Mich 382, 397 (2012). “Initiative provisions are liberally construed to effectuate their purposes and facilitate rather than hamper the exercise of reserved rights by the people.” Save Our Downtown, 343 Mich App at 534. “The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters.” Id. at 534 (quotation marks and citation omitted). A court must presume “the voters intended the meaning plainly expressed in the initiative.” Id. at 534.
B.Conflict, Ambiguity, and Rules of Statutory Construction
1.Conflict
Conflict Between Statute and Rule. “Generally, if a court rule conflicts with a statute, the court rule governs when the matter pertains to practice and procedure.” People v Watkins, 277 Mich App 358, 363 (2007). “However, to the extent that the statute, as applied, addresses an issue of substantive law, the statute prevails.” Id. See Rose v May, ___ Mich App ___, ___ (2025) (concluding that MCL 722.714(12) takes precedence over MCR 3.204(A)(2) “because MCL 722.714 addresses the public policy of providing support for children born out of wedlock, and more specifically requires that a paternity action is to be filed in the county where the mother or child resides[; therefore,] the mandatory venue provision of the statute is most appropriately categorized as a substantive rule dictating the proper venue for a paternity complaint”).
“[W]hen a statute and an administrative rule conflict, the statute necessarily controls.” Grass Lake Improvement Bd v Dep’t of Environmental Quality, 316 Mich App 356, 366 (2016). However, “it is equally well settled . . . that agencies are bound to follow their own duly promulgated rules.” Id. at 366-367 (finding that the administrative law judge did not abuse his discretion in following the administrative agency’s own rules where there was undeniable tension between the court rule and the agency rule, and the agency’s “legal position was sufficiently grounded in law as to have at least some arguable merit”).
Conflict Between Statute and Local Ordinance. “[A]n ordinance is preempted if it is in direct conflict with the state statutory scheme[.]” RPF Oil Co v Genesee Co, 330 Mich App 533, 538 (2019) (quotation marks and citation omitted). “A local regulation directly conflicts with a state statute if the regulation permits what the statute prohibits or prohibits what the statute permits.” Id. at 538-539 (quotation marks and citation omitted) (“[a] county–like a city–may not enact an ordinance that conflicts with state law”). “State law may preempt a local government’s law either through a direct conflict or through occupying the field of regulation which the municipality seeks to enter.” Id. at 538 (quotation marks and citation omitted). “[A]n ordinance is not conflict preempted as long as its additional requirements do not contradict the requirements set forth in the statute.” DeRuiter v Byron Twp, 505 Mich 130, 147 (2020) (holding that a local ordinance was not preempted by statute where restrictions imposed by the ordinance “add[ed] to and complement[ed] the limitations imposed by the [statute]” and the restrictions did not effectively prohibit the activity permitted by the statute).
Doctrine of In Pari Materia. Statutory language, unambiguous on its face, “can be rendered ambiguous through its interaction with and its relation to other statutes.” People v Valentin, 457 Mich 1, 6 (1998) (quotation marks and citation omitted). Under the doctrine of in pari materia, “statutes that relate to the same subject or that share a common purpose should, if possible, be read together to create a harmonious body of law.” People v Mazur, 497 Mich 302, 313 (2015) (holding that “[a]n act that incidentally refers to the same subject is not in pari materia if its scope and aim are distinct and unconnected.”)
When “it is impossible ‘to give each [statute] full force and effect,’ and neither statute expressly references the other, one statute must be construed as a de facto amendment of, or limitation upon, the other.” Milne v Robinson, ___ Mich ___, ___ (2024) (citation omitted; alteration in original). If “statutes conflict, the more specific provision governs over the more general one.” Id. at ___. “[C]ourts generally presume that the Legislature gave more deliberate consideration to the specific issue when enacting the more specific statute and therefore treat this provision as an exception to the general act or provision that would otherwise govern to avoid rendering the more specific provision nugatory.” Id. at ___ (quotation marks and citation omitted). “However, like any canon of statutory interpretation, this framework should not be used mechanically, and it does not apply in every situation.” Id. at ___.
“When two statutes seemingly conflict, the controlling question is how the Legislature intended for those statutes to interact.” Id. at ___. “General rules of statutory construction—including the canon that a specific statute applies over a general one—are tools that may assist in this endeavor, but they are not straitjackets.” Id. at ___. Indeed, “the general/specific analysis is most likely to be probative of legislative intent when (1) two statutes relate to the same subject or share a common purpose such that they should be read together in pari materia, and/or (2) one statute addresses a broader topic while the other statute addresses a subset of situations within that broader topic.” Id. at ___ (cleaned up). The fact that two statutes “may incidentally both apply in a limited set of circumstances does not mean that they relate to the same subject matter or share a common purpose such that they should be read together in pari materia.” Id. at ___. In Milne, the Michigan Supreme Court held that the doctrine of in pari materia was not helpful because the statutes at issue (a) did not address a subset of situations more broadly covered by the other, (b) can—and generally did—apply independently of each other, and (c) were narrow and broad in their own ways such that determining which provision was more specific entirely turned on how the subject matter was defined. Id. at ___ (“discern[ing] no principled basis for determining which provision [was] more specific than the other” or “how [that] inquiry illuminate[d] how the Legislature intended for these statutes to interact”).
“The application of in pari materia is not necessarily conditioned on a finding of ambiguity.” SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 73 n 26 (2017) (holding that the Court of Appeals “erred in its narrow utilization of the in pari materia canon of construction,” and noting that in Int’l Business Machines Corp v Dep’t of Treasury, 496 Mich 642, 651-653 (2014) (plurality opinion), “the [Michigan Supreme] Court suggested the application of in pari materia to resolve a patent conflict between two unambiguous statutes”).
The general/specific canon “applies when two statutes conflict, and to resolve the conflict, the more specific provision prevails over the more general one.” Miller v Dep’t of Corrections, ___ Mich ___, ___ (2024). “If the application of different subsections in a given case dictated different results—that is, if one subsection indicated certain conduct was prohibited while a different subsection said the same conduct was not prohibited—then there would be a conflict between the subsections.” Id. at ___. However, where “the subsections overlap and lead to the same result—the defendant engaged in prohibited conduct—there is no conflict to resolve.” Id. at ___ (holding that “multiple subsections may apply to the same conduct, and a single retaliatory act may violate the [Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq.] in multiple ways”).
3.Rules of Statutory Construction
“[T]he ultimate goal in questions of statutory interpretation is to ascertain and give effect to the Legislature’s intent.” Miller v Dep’t of Corrections, ___ Mich ___, ___ (2024) (quotation marks and citation omitted). Courts “should endeavor to read potentially conflicting provisions of a statute harmoniously if possible.” Id. at ___. “One part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.” Id. at ___ (cleaned up). “In doing so, [courts] sometimes use canons of statutory interpretation, being mindful that they are tools that may assist in this endeavor, but they are not straitjackets.” Id. at ___ (quotation marks and citation omitted).
Canon of Ejusdem Generis. “Ejusdem generis provides that in a statute in which general words follow a designation of particular subjects, the meaning of the general words will ordinarily be presumed to be and construed as restricted by the particular designation and as including only those things of the same kind, class, character or nature as those specifically enumerated.” People v Burkman, ___ Mich ___, ___ (2024) (quotation marks and citation omitted).
Doctrine of Noscitur a Sociis. “Contextual understanding of statutes is generally grounded in the doctrine of noscitur a sociis: ‘it is known from its associates.’ This doctrine stands for the principle that a word or phrase is given meaning by its context or setting.” Burkman, ___ Mich at ___ (cleaned up). “Under noscitur a sociis, when several nouns or verbs or adjectives or adverbs—any words—are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar.” Id. at ___ (cleaned up). See In re LaFrance, 306 Mich App 713, 725 (2014) (holding that a subparagraph of a statute “must be interpreted in the context of its sister subparagraphs”).
Expressio Unius est Exclusio Alterius Canon. “[T]he canon expressio unius est exclusio alterius, which states that the express mention of one thing implies the exclusion of other similar things, . . . [should not be applied] to overcome the plain meaning of the words [of a statute].” People v Garrison, 495 Mich 362, 372 (2014).
Last Antecedent Rule. “[T]he last antecedent rule[ is] a rule of statutory construction that provides that ‘a modifying or restrictive word or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent, unless something in the statute requires a different interpretation.’” Hardaway v Wayne Co, 494 Mich 423, 427 (2013), quoting Stanton v Battle Creek, 466 Mich 611, 616 (2002). “[T]he last antecedent rule should not be applied blindly”; for example, it should not be applied if it would render a portion of the statute redundant. Hardaway, 494 Mich at 428-429. “Moreover, the last antecedent rule does not mandate a construction based on the shortest antecedent that is grammatically feasible; when applying the last antecedent rule, a court should first consider what are the logical metes and bounds of the ‘last’ antecedent.” Id. at 425, 427-429, 429 n 10 (noting that “[t]he last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence,” and holding that “the Court of Appeals . . . improperly applied the last antecedent rule” in construing the unambiguous text of the defendant’s resolution where application of the rule “[took] what [was] grammatically an essential clause . . . and effectively render[ed] it a nonessential clause”) (citations omitted).
Legislative Silence. In general, “‘courts presume a different intent when a legislature omits words used in a prior statute on a similar subject.’” People v English, 317 Mich App 607, 616 (2016) (citation omitted). This rule of construction “is only applicable when the ‘related statute’ is a prior enactment.” Id.; see also People v Watkins, 491 Mich 450, 482 (2012) (noting that “[i]t is one thing to infer legislative intent through silence in a simultaneous or subsequent enactment, but quite another to infer legislative intent through silence in an earlier enactment, which is only ‘silent’ by virtue of the subsequent enactment”); People v Mullins, 322 Mich App 151, 165-166 (2017) (noting that “[t]here are likely many reasons—policy and nonpolicy alike—why the Legislature would choose to amend one section of law without at the same time amending a related section, including interest, resources, politics, attention, etc.”).
Legislative History. “[R]esort[ing] to legislative history of any form is proper only where a genuine ambiguity exists in the statute. Legislative history cannot be used to create an ambiguity where one does not otherwise exist.” In re Certified Question, 468 Mich 109, 115 n 5 (2003) (the Court also “emphasize[d] that not all legislative history is of equal value, a fact that results in varying degrees of quality and utility of legislative history”).
Implied Repeal. “It is axiomatic that repeals by implication are disfavored.” Miller v Dep’t of Corrections, ___ Mich ___, ___ (2024) (quotation marks and citation omitted). “Findings of implied repeal are rare, but implied repeal may be accomplished (1) by the enactment of a subsequent act inconsistent with a former act or (2) by the occupancy of the entire field by a subsequent enactment.” Id. at ___ (quotation marks and citation omitted). “Courts must determine if there is any other reasonable construction that would harmonize the two statutes and avoid a repeal by implication.” Id. at ___ (quotation marks and citation omitted).
Revival. “[R]evival occurs when an amendment of a statute is repealed and the former version of the statute is revived by the repeal of the amendatory provision. Revival also applies when, instead of a legislative repeal of a statutory amendment, the courts find the amendment unconstitutional. When the amendment is constitutionally invalid, the statute behaves as if the amendment never existed.” People v Betts, 507 Mich 527, 571 (2021) (citation omitted). “Michigan has a legislative preference against revival, MCL 8.4, but it refers only to the legislative context of revival wherein the Legislature has acted to repeal an amendatory provision, not necessarily to the context wherein the courts have struck a provision down as unconstitutional.” Betts, 507 Mich at 533, 572-574 (finding revival was an inappropriate tool to remedy a constitutional violation regarding a 2011 amendment to the Sex Offenders Registration Act, which has since been amended by the Legislature several times, “altering both the nature of the registry and the requirements imposed by it”).
Rule of Lenity. “The ‘rule of lenity’ provides that courts should mitigate punishment when the punishment in a criminal statute is unclear.” People v Denio, 454 Mich 691, 699 (1997). “The rule of lenity applies only if the statute is ambiguous or ‘“in absence of any firm indication of legislative intent.”’” People v Johnson, 302 Mich App 450, 462 (2013), quoting Denio, 454 Mich at 700 n 12 (holding that “the rule of lenity does not apply when construing the Public Health Code[, MCL 333.1101 et seq.,] because the Legislature mandated in MCL 333.1111(2) that the code’s provisions are to be ‘liberally construed for the protection of the health, safety, and welfare of the people of this state’”) (additional citations omitted). See also Hall, 499 Mich at 458, 464 (noting that the rule of lenity is a “tie-breaking canon[] of statutory interpretation” that “[does] not apply unless . . . seemingly conflicting statutes are in fact ambiguous”).
In determining “whether the Legislature intended a single criminal transaction to give rise to multiple convictions,” if “no conclusive evidence of legislative intent can be discerned, the rule of lenity requires the conclusion that separate punishments were not intended.” People v Perry, 317 Mich App 589, 602, 604 (2016) (citations and quotation marks omitted). However, if there is a “clear indication of legislative intent and absence of ambiguity, the rule of lenity does not apply.” Id. at 605-606.
C.Statutory Constitutional Challenges
“Statutes are presumed to be constitutional, and the party challenging a statute has the burden of showing the contrary.” People v Burkman, ___ Mich ___, ___ (2024). “A facial challenge alleges that a statute is unconstitutional on its face, meaning that, in general, the challenger must establish that no set of circumstances exists under which the statute would be valid.” Id. at ___ (noting that “in the First Amendment context, a facial challenge may be sufficient if it establishes that the statute prohibits constitutionally protected speech or conduct and is thus overbroad”) (cleaned up). “An as-applied challenge, on the other hand, alleges a present infringement or denial of a specific right or of a particular injury in process of actual execution of government action.” Id. at ___ (quotation marks and citation omitted).
“When a dispute arises regarding whether a properly enacted statute violates the Constitution, that dispute must be resolved by the courts, not by a single individual within the executive branch.” League of Women Voters of Mich v Secretary of State, 331 Mich App 1, 12 n 5 (2020) (noting the Legislature and the Governor do have a role “to play in resolving such a dispute if they choose to do so by repealing or amending the statute at issue”). “[J]ust as a legislative body cannot legitimately enact a statute that is repugnant to the Constitution, nor can an executive-branch official effectively declare a properly enacted law to be void by simply conceding the point in litigation.” Id. at 11.
“Generally, a criminal defendant may not defend on the basis that the charging statute is unconstitutionally vague or overbroad where the defendant’s conduct is fairly within the constitutional scope of the statute.” People v Rogers, 249 Mich App 77, 95 (2001). “In determining whether a statute is unconstitutionally vague or overbroad, a reviewing court should consider the entire text of the statute and any judicial constructions of the statute.” Id. at 94.
“The void for vagueness doctrine is derived from the constitutional guarantee that the state may not deprive a person of life, liberty, or property without due process of law.” Exclusive Capital Partners, LLC v Royal Oak, ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Id. at ___ (quotation marks and citations omitted). “Vague laws implicate three related, core concerns:
First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Id. at ___ (quotation marks and citation omitted).
Accordingly, “a statute or ordinance may be void for vagueness if (1) it is overbroad and impinges on First Amendment freedoms, (2) it does not provide fair notice of the conduct it regulates, or (3) it gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated.” Id. at ___ (cleaned up). “At its core, the void-for-vagueness doctrine is concerned that laws provide fair notice and prevent arbitrary enforcement rather than with the deprivation of a claimant’s property or liberty interests; the doctrine applies regardless of whether a property or liberty interest is clearly established.” Id. at ___ (rejecting “the [c]ity’s argument that the void-for-vagueness doctrine [was] inapplicable because [plaintiff] lack[ed] a valid property interest as a first-time license applicant”).
“The vagueness doctrine incorporates notions of fair notice or warning and requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement.” People v Burkman, ___ Mich ___, ___ (2024) (quotation marks and citation omitted). “Accordingly, a statute may be considered unconstitutionally vague if it fails to provide fair notice of the conduct proscribed or encourages arbitrary and discriminatory enforcement.” Id. at ___ (cleaned up).
“To afford proper notice of the conduct proscribed, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. A statute cannot use terms that require persons of ordinary intelligence to speculate regarding its meaning and differ about its application. For a statute to be sufficiently definite, its meaning must be fairly ascertainable by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words.” People v Sands, 261 Mich App 158, 161 (2004) (citations omitted). See also Burkman, ___ Mich at ___ (“A statute provides fair notice when it gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and such knowledge may be acquired by referring to judicial interpretations, common law, dictionaries, treatises, or the common meaning of words.”) (cleaned up). “A statute is not vague if the meaning of the words in controversy can be fairly ascertained by referring to their generally accepted meaning.” People v Harris, 495 Mich 120, 138 (2014).
“When a defendant's vagueness challenge does not implicate First Amendment freedoms, the constitutionality of the statute in question must be examined in light of the particular facts at hand without concern for the hypothetical rights of others. The proper inquiry is not whether the statute may be susceptible to impermissible interpretations, but whether the statute is vague as applied to the conduct allegedly proscribed in [the] case.” People v Newton, 257 Mich App 61, 66 (2003).
“A statute is unconstitutionally vague where people of common intelligence must guess at the statute’s meaning and differ with regard to how it applies.” Exclusive Capital Partners, ___ Mich App at ___ (quotation marks and citation omitted). “When determining whether a statute inappropriately delegates unstructured and unlimited discretion to a decision maker, the court examines whether the statute provides standards for enforcing and administering the laws in order to ensure that enforcement is not arbitrary or discriminatory . . . .” Id. at ___ (quotation marks and citation omitted).
In Exclusive Capital Partners, the plaintiff asserted that a recreational marijuana licensing ordinance was unconstitutionally vague because it gave unfettered discretion to the city manager and failed to give license applicants notice of how the ordinance would be applied. Id. at ___. The licensing ordinance indicated that “certain competitive criteria” applied to the process of selecting license recipients, “including the likelihood of success in harmony with surrounding properties along with [other] criteria that implicate[d] an applicant’s tax history, criminal history, financial history, operational history, and sustainability [plans].” Id. at ___. “Ultimately, the city manager reviewed all the applications, considered each in relation to the competitive criteria of the marijuana ordinance, compared the applicants to one another, and independently ranked the applicants into three categories consisting of the two successful applicants, applicants put on standby, and applicants who were rejected.” Id. at ___. “The ordinance undoubtedly allow[ed] the city manager some leeway and discretion in administering the licensing process. But it [did] not do so to the extent that it render[ed] the ordinance constitutionally infirm.” Id. at ___. “Due process does not preclude a city from giving vague or ambiguous directions to officials who are authorized to make recommendations.” Id. at ___ (cleaned up). “The relevant inquiry is whether the ordinance is so lacking in standards as to give those charged with implementing it carte blanche to follow their personal predilections.” Id. at ___. “Even assuming that the city manager was confused with respect to implementation of the ordinance’s competitive process, this alleged fact, if established, would not necessarily indicate that the city manager acted with unbridled discretion.” Id. at ___.
“Facial overbreadth challenges to statutes have been entertained where a statute (1) attempts to regulate by its terms only spoken words, (2) attempts to regulate the time, place, and manner of expressive conduct, or (3) requires official approval by local functionaries with standardless, discretionary power.” People v Rogers, 249 Mich App 77, 95-96 (2001).
“The overbreadth doctrine exists to prevent the chilling of speech, but this doctrine may not be casually employed and has been considered, manifestly, strong medicine.” People v Burkman, ___ Mich ___, ___ (2024) (cleaned up). “The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge; instead, a challenger must prove a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Id. at ___ (cleaned up). “Stated differently, where conduct and not merely speech is involved, a court must first determine whether the law reaches a substantial amount of constitutionally protected conduct.” Id. at ___ (cleaned up). “The statute’s overbreadth must be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” Id. at ___ (holding that MCL 168.932(a) “regulates substantially more political speech than its plainly legitimate sweep allows”) (cleaned up).
“However, a statute may be saved from being found to be facially invalid on overbreadth grounds where it has been or could be afforded a narrow and limiting construction by state courts[.]” Burkman, ___ Mich at ___ (quotation marks and citation omitted). “Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” Id. at ___ (quotation marks and citations omitted). Courts “are duty bound under the Michigan Constitution to preserve the laws of this state and to that end to construe them if [a court] can so that they conform to federal and state constitutional requirements.” Id. at ___ (cleaned up). The Burkman Court held that “when the charged conduct is solely speech and does not fall under any exceptions to constitutional free-speech protections, MCL 168.932(a)’s catchall phrase operates to proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote.” Burkman, ___ Mich at ___. “This limiting construction cures the serious and realistic danger that MCL 168.932(a)’s catchall provision infringes constitutional free-speech protections by limiting the statute’s reach to areas where government regulation is constitutionally provided or has been historically upheld.” Burkman, ___ Mich at ___ (concluding that MCL 168.932(a) was overbroad and “offer[ing] a limiting construction of the statute’s catchall phrase”). See People v Burkman (On Remand), ___ Mich App ___ (2024), where the Court of Appeals analyzed the Supreme Court’s limiting construction of MCL 168.932(a) in light of the specific facts at issue in the matter.
D.Retroactivity of Statutes2
“Statutes are intended to apply prospectively absent clear legislative intent to the contrary.” McLain v Roman Catholic Diocese of Lansing, ___ Mich ___, ___ (2024). “In determining whether a statute should be applied retroactively or prospectively only, the primary and overriding rule is that legislative intent governs.” Id. at ___ (cleaned up).“All other rules of construction and operation are subservient to this principle.” Buhl v Oak Park, 507 Mich 236, 244 (2021) (quotation marks and citation omitted). “Whether a statute applies retroactively presents a question of statutory construction[.]” People v Conyer, 281 Mich App 526, 528 (2008). “A statute is presumed to operate prospectively ‘unless the Legislature has expressly or impliedly indicated its intention to give it retrospective effect.’” Id. at 529, quoting People v Russo, 439 Mich 584, 594 (1992).
“Amendments of statutes are generally presumed to operate prospectively unless the Legislature clearly manifests a contrary intent.” Conyer, 281 Mich App at 529 (cleaned up). “However, an exception to this general rule is recognized if a statute is remedial or procedural in nature.” Id. “A statute is remedial if it is designed to correct an existing oversight in the law or redress an existing grievance, or if it operates in furtherance of an existing remedy and neither creates nor destroys existing rights.” Id. “A statute that affects or creates substantive rights is not remedial, and is not given retroactive effect, absent clear indication of legislative intent otherwise.” Id. “[A] statute or amendment may not be applied retroactively if doing so would take away or impair vested rights acquired under existing laws, or create a new obligation and impose a new duty, or attach a new disability with respect to transactions or considerations already past. Buhl, 507 Mich at 246 (cleaned up). “Conversely, then, a newly enacted statue or amendment should not be retroactively applied if doing so would relieve a party of a substantive duty.” Id. at 247.
When conducting an inquiry into the Legislature’s intent, courts should consider the following framework:
“‘First, . . . consider whether there is specific language providing for retroactive application. Second, in some situations, a statute is not regarded as operating retroactively merely because it relates to an antecedent event. Third, in determining retroactivity, . . . keep in mind that retroactive laws impair vested rights acquired under existing laws or create new obligations or duties with respect to transactions or considerations already past. Finally, a remedial or procedural act not affecting vested rights may be given retroactive effect where the injury or claim is antecedent to the enactment of the statute.’” Buhl, 507 Mich at 244, quoting LaFontaine Saline, Inc v Chrysler Group, LLC, 496 Mich 26, 38-39 (2014).
“Retroactive application of legislation presents problems of unfairness because it can deprive citizens of legitimate expectations and upset settled transactions.” McLain, ___ Mich at ___ (cleaned up). Courts “have therefore required that the Legislature make its intentions clear when it seeks to pass a law with retroactive effect.” Id. at ___ (quotation marks and citation omitted). In McLain, the Michigan Supreme Court held that “MCL 600.5851b(1)(b) creates a discovery rule for measuring the accrual date for the limitations period for claims of criminal sexual conduct occurring after its passage.” McLain, ___ Mich at ___ (noting that plaintiff’s claims were barred by the statute of limitations unless the statute applied retroactively).
With respect to the first LaFontaine principle, the McLain Court held that “[t]he plain language of the statute does not clearly indicate that the discovery rule accrual method described in [MCL 600.5851b(1)(b)] should apply retroactively to resuscitate stale claims.” McLain, ___ Mich at ___. Indeed, MCL 600.5851b(1)(b) ”does not include the past tense ‘was,’ which could support a backward-looking application of the statute.” McLain, ___ Mich at ___ (stating that the statute’s “use of the present-tense term ‘is’ suggests prospective-only application.”) “Importantly, the statute does not state whether it applies to a cause of action that already accrued before its effective date.” McLain, ___ Mich at ___ (observing that “the statute was given immediate effect without further elaboration”). “In stark contrast, neighboring [MCL 600.5851b(3)] sets forth retroactive intent in pellucid terms.” McLain, ___ Mich at ___. The Court stated that “the Legislature clearly knows how to signal its intent that a statute apply retroactively, and it did so in [MCL 600.5851b(3)], but not in [MCL 600.5851b(1)(b)].” McLain, ___ Mich at ___. Courts “presume prospective intent unless rebutted by clear intent for retroactive application, not the other way around.” Id. at ___. Accordingly, the Court held that the statute evidenced “the Legislature’s intent to create a discovery rule for accrual of claims,” but did not “indicate an intent for the statute to retroactively revive already-expired claims or undermine our earlier analysis concluding that the plain language of the statute does not support retroactive application.” Id. at ___.
The McLain Court determined that the second LaFontaine principle did not apply because MCL 600.5851b(1)(b) did not “relate to measuring the amount of entitlement provided by a subsequent statute in part by services rendered pursuant to a prior statute.” McLain, ___ Mich at ___ (cleaned up). The third LaFontaine principle required the Court to “consider whether defendants have a vested right in not being sued for criminal sexual conduct committed in the past for which the statute of limitations has already expired.” Id. at ___ (“declin[ing] to resolve . . . contradictory caselaw because [the] principle [was] not dispositive when the statute [did] not clearly demonstrate retroactive intent under the first LaFontaine inquiry”). Next, the Court addressed the final LaFontaine principle, which “states that a remedial or procedural act not affecting vested rights may be given retroactive effect where the injury or claim is antecedent to the enactment of the statute.” Id. at ___ (quotation marks and citation omitted). The McLain Court determined that this consideration did not apply, stating that “regardless of whether this case involves a vested right, a statute of limitations that has lapsed does not fall into the remedial-procedural exception to prospective application because substantive rights are affected when causes of action can be lost as a result of becoming time-barred.” McLain, ___ Mich at ___ (holding that plaintiff’s claim was untimely because MCL 600.5851b(1)(b) did “not apply retroactively to revive limitations periods that have already expired”) (quotation marks and citation omitted).
Issues of statutory interpretation are reviewed de novo. People v Babcock, 469 Mich 247, 253 (2003).
1 See Section 1.7(B) for information on legislative history.
2 See Section 1.4(I) for information on retroactivity of judicial decisions.