Michigan Supreme Court Tosses Out Election-Law Forgery Conviction

MCL 168.937, which is part of the state’s Election Law, is a penalty provision that does not create a substantive offense, the Michigan Supreme Court has ruled in a unanimous decision.

As a result, §937 could not be used as the basis to prosecute the defendant in People v Pinkney (Docket No. 154374), for alleged election-law forgery, the Supreme Court held.

The defendant in Pinkney was convicted of five counts of election-law forgery under §937, which says: “Any person found guilty of forgery under the provisions of this act shall, unless herein otherwise provided, be punished by a fine not exceeding $1,000.00, or by imprisonment in the state prison for a term not exceeding 5 years, or by both such fine and imprisonment in the discretion of the court.”

The Court of Appeals upheld the defendant’s convictions.

The Supreme Court reversed the convictions, finding the defendant could not be prosecuted under §937 because the plain language of the statute does not set forth a crime. “As a result, defendant was not properly charged under §937 with the substantive offense of election-law forgery,” the justices wrote. “Therefore, his convictions must be vacated and the charges dismissed.”

Justice David F. Viviano wrote the opinion. Justice Elizabeth T. Clement did not participate in the case.

Election Recall Effort

In late 2013, the defendant participated in a recall effort against the mayor of Benton Harbor. To force a recall, the defendant had to obtain 393 petition signatures. He had 60 days to collect the required signatures.

On January 8, 2014, the defendant presented the Berrien County Clerk’s Office with 62 petitions that included 728 signatures supporting the recall election. The clerk certified 402 of the signatures and scheduled the recall election. The clerk sent the petitions to the Berrien County Sheriff’s Department, so perceived irregularities in the signatures could be examined. Upon reviewing the petitions, the Sheriff’s Department identified several signatures where the dates appeared altered, to make it appear they fell within the 60-day window for valid signatures. The Michigan State Police Crime Lab then examined the petitions and confirmed that several petitions included signatures with altered dates.

The defendant was charged with five counts of election-law forgery under §937 and six counts of making a false statement under MCL 168.957. The defendant filed a motion to quash, arguing that §937 is a penalty provision and not a substantive, chargeable offense. The Berrien County Circuit Court denied the motion and the case went to trial.

A jury found the defendant guilty on the five election-law forgery counts and not guilty on the false statement counts. The defendant moved for a directed verdict, again arguing that §937 is only a penalty provision. The trial court denied the motion and the defendant was sentenced to concurrent prison terms of 30 to 120 months.

The defendant appealed. The Court of Appeals affirmed in a published decision (Docket No. 325856), finding that §937 created the substantive offense of election-law forgery. In reaching this conclusion, the Court of Appeals relied on its unpublished decision in People v Hall (Docket No. 321045), where the panel found that §937 created a substantive offense because interpreting §937 as a penalty provision would 1) render it surplusage and 2) contravene the Legislature’s intent in enacting the Election Law.

Looking to Hall, the Court of Appeals in Pinkney wrote, “If we were to accept defendant’s argument and interpret MCL 168.937 as merely a penalty provision, it would have no effect in light of MCL 168.935.” Moreover, §937 “does not violate the vagueness doctrine or the rule of lenity,” the panel noted. “Stated simply, the meaning of MCL 168.937 can be fairly ascertained by reference to the common law.”

‘Inoperative Penalty Provision’

The Michigan Supreme Court disagreed and reversed, finding the Court of Appeals erred in its analysis. “The Court of Appeals … adopted the Hall panel’s reasoning and again held that §937 constitutes a substantive offense,” the Supreme Court pointed out. “The Court [of Appeals] further noted that interpreting §937 solely as a penalty provision would create an absurd result.”

After reviewing the plain language of §937, along with its context and history, “we are convinced that §937 does not create a substantive crime,” the Supreme Court stated. “Instead, it is an inoperative penalty provision.”

According to the Supreme Court, §937 is not a chargeable offense. “Contrary to the Court of Appeals’ conclusion that §937 clearly sets forth the offense of forgery under the Election Law, nothing in the plain language of §937 suggests that the Legislature intended it to be a chargeable offense. Instead, … it reads like a penalty provision - i.e., a provision providing the penalty for the crime of forgery enumerated elsewhere in the Election Law.”

Moreover, §937 “does not set forth or describe any conduct that is prohibited,” the Supreme Court explained. “Instead, the Legislature’s use of the past tense verb ‘found’ (in the phrase ‘found guilty of forgery under the provisions of this act’) presupposes that an individual has already been convicted of the crime of forgery under the Election Law. Consequently, by its clear terms, the provision does nothing more than provide the punishment for that already-committed offense. A review of its surrounding provisions further indicates that §937 does not create a chargeable offense, but is instead one of a series of penalty provisions for offenses delineated elsewhere in the Election Law.”

The Supreme Court also observed that §936 of the Election Law is most like §937, although §936 specifies a penalty for perjury and not forgery. “Yet the Legislature described how an individual commits ‘perjury’ in MCL 168.933,” the Supreme Court noted. Thus, the only “reasonable reading” of these two provisions is that the Legislature intended §933 to be the substantive offense of perjury and §936 to set forth the punishment for a conviction of perjury, the justices said. “And, since it contains language nearly identical to §936, it would be exceedingly odd to assume that the Legislature intended §937 to operate not as a penalty provision like §936, but as a provision creating the substantive offense of forgery under the Election Law.”

Therefore, the plain language of §937, in context with the surrounding provisions in the Election Law, “strongly indicates that it is only a penalty provision,” the Supreme Court held. “We determine the scope of a statute based on its plain language - here, the words of §937 give no indication that it was intended to cover all possible election-related forgery crimes. … We hold that §937, by its plain language, does not set forth a substantive offense.”