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Statutory Interpretation: Sometimes It Is Easier Than It Appears.

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I.              Introduction

Suppose that every morning you woke up and made yourself a pot of coffee. But did you really make that coffee? You put the coffee grounds into the coffee pot, then you poured the water in, and finally you turned on the coffee pot. The water was then siphoned through the coffee grounds and brown (coffee) water inevitably ended up in the pot. You had to be the one that made the coffee, right? Technically, one could argue that it was the coffee machine that made the coffee and you simply helped perpetuate its process.

This conundrum arises because of the word “make” and how society defines it. Typically, if you go into a dictionary, and look up a word such as “make,” there will be a laundry list of sentences explaining its meaning, based upon the context that the word is used within the English language. Of course the coffee scenario above does no more than stir up a little common debate about semantics; however, imagine you were facing a twenty-year prison sentence if it was found that you were the one who made the coffee. In People v. Hill, the Michigan Supreme Court was faced with that decision, yet rather than determining who made the coffee, the Court determined whether someone “made” (or “produced”) child sexually abusive material.1

The Michigan Supreme Court made a massive and elementary error when it held in Hill that the defendant merely possessed child sexually abusive material.2 The decision inevitably limited the applicably of § 750.145c(2), and now it only applies to individuals who originally create child sexually abusive material.3 However, this paper will show that, the Michigan legislators clearly intended § 750.145 to include individuals who reproduce the material, which includes Hill’s acts.4

Section II(i) will outline the history of statutory interpretation, specifically in Michigan. Sections II(i) and II(ii)(1-3) will discuss the legislative history and precedent surrounding § 750.145c. Sections II(iii)(1-2)(a-b) will then walk through the procedural history of People v. Hill, which includes two Court of Appeal decisions, a Federal Court decision, and multiple Supreme Court decisions. Section II(iv) will discuss the most recent Supreme Court opinions influenced by the Hill case. Section III will then explain the proper analysis of Hill and ultimately set-up Section IV, the proper interpretation of § 750.145c(2)

Image Copyright jonasj (Flickr), 2011

II.              Background           

i.     Statute Interpretation

When determining the meaning of words and phrases used within a statute, courts rely on the rules of statutory interpretation.5 The goal of interpretating a “statute is to ascertain and give effect to” the legislature’s intent.6 The first step in interpreting any statute is to review and read the language of the statute, and if the language is clear or unambiguous then no further anaylsis is needed.7 When the statute contains undefined terms they should be given their plain and ordinary meaning while attempting to remain “consistent with the legislative aim [used when] enacting the statute.”8

If the language within a statute is ambigious, a court may go beyond the words provided in the statute in order to ascertain the legislator’s intent.9 An ambiguity exists when the language “used in its particular context has more than one common and accepted meaning.”10 However, an ambiguity is overted when “common words [are] used in their ordinary fashion,” and thus leads to only one reasonable conclusion.11

The rules of statutory interpretation should only “serve as [a] guide . . . to assist the judiciary in determining the intent of the legislature.”12 On the other hand, the words and phrases within a statute are the “most reliable [proof] of the [l]egislature’s intent” and “every word, phrase, and clause” within the statute should be given effect.13 Further, a “[c]ourt must presume that every word has some meaning” within the context of the statute.14 However, it should “avoid a construction that would render any part of a statute surplusage or nugatory” while maintaining the intended “grammatical context, unless it is clear that something different was intended.”15

 ii.     Legislative History

1.    The Early Years -

In 1977, the Michigan legislature drafted the first criminal statute that prohibited the use of children in pornographic material for commercial purposes.16 The legislature, at the time, believed that the law should be tailored to be practical, severe, and to prohibit the exploitation of children in pornographic material.17

A primary concern, in 1987, was whether the statute would continue to keep up with the increase in technology, which at the time was one-hour photo-shops.18 The legislature removed the word “commercial” from § 750.145c,19 and thus the following provisions emerged:

(b) “Child” means a person who is less than [eighteen] years of age, subject to the affirmative defense created in subsection (6) regarding persons emancipated by operation of law . . .

(2) A person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in a child sexually abusive activity for the purpose of producing any child sexually abusive material, or a person who arranges for, produces, makes, or finances, or a person who attempts or prepares or conspires to arrange for, produce, make or finances any child sexually abusive activity or child sexually abusive material is guilty of a felony, punishable by imprisonment for not more than [twenty] years . . . if that person knows, has reason to know, or should reasonably be expected to know that the child is a child . . .

(3) A person who distributes or promotes, or finances the distribution or promotion of, or receives for the purpose of distributing or promoting, or conspires, attempts, or prepares to distribute, receive, finance, or promote any child sexually abusive material or child sexually abusive activity is guilty of a felony, punishable by imprisonment for not more than [seven] years . . . .20

Pursuant to the 1987 amendment, an individual who was found to have in his or her possession 1,100 pictures of 145 under-age children (that he or she “made”) was charged for production even if he or she did not receive any financial compensation for that material.21 Whereas prior to the amendment, an individual had to recieve some sort of compensation for making the materials otherwise he or she could not have been charged under statute.22

It is apparent, after reading § 750.145c(2), that the legislature failed to include an element of intent;23 therefore, courts feared that if “distribute” was construed too broadly, it would inevitably impede criminal liability onto innocent individuals.24The Court of Appeals ultimately held that an individual could be convicted for distribution alone, if he or she had an “intent to disseminate” child sexually abusive material.25 Therefore, a defendant charged for “production” simply had to maintain an intent to “produce” child sexually abusive material.26 There is no mention within the statute that an individual charged for “production” must also intend to take the next step towards “distribution.”27

The Michigan Court of Appeals explained that § 750.145c(2) “clearly and unambiguously imposes criminal liability on three distinct groups of ‘persons.’”28The first category is “‘a person who persuades, induces, entices, coerces, causes, or knowingly allows a child to engage in child sexually abusive activity for the purpose of producing child sexually abusive material.’”29 The second category is separated by a conjunctive “or,” stating that criminal liability is attached to “‘a person who arranges for, produces, makes, or finances any child sexually abusive activity or child sexually abusive material.’”30 The third category is also separated by a conjunctive “or” and states that “‘a person who attempts or prepares or conspires to arrange for, produce, make, or finance any child sexually abusive activity or child sexually abusive material.’”31

Therefore, the legislature omitted from “the second and third [categories] of criminal actors the requirement applicable in the first group that the proscribed actions [be] taken for the purpose of creating child sexually abusive material [or] for the ultimate purpose of creating any child sexually abusive material.”32


2.    The Nineties

The legislature, in 1995, made another dramactic step toward the fight against child pornography by criminalizing the possession of child sexually abusive material.33The new subsection states: “[a] person who knowingly possesses any child sexually abusive material is guilty of a felony punishable by imprisonment for not more than [four] years.”34 This amendment came after the United States Supreme Court held that criminalizing the possession of child pornography did not violate an individual’s Constitutional rights.35

Many members of congress argued that the statute was too broad, and thus infringed upon an individual’s First Amendment Rights to Freedom of Speech and Privacy.36The Michigan Court of Appeals recently decided that § 750.145c was clear and unambiguous; therefore, it was constitutional based upon the United States Supreme Court holdings in Stanley v. Georgia. 37

The Michigan Supreme Court recently determined the scope of § 750.145c(4);38 it explained that “possession” is more than simple physical control over an item, which incorporates both actual and constructive possession.39 The Court explained that the term “possess” or “possession” is based upon whether an individual had the ability to exercise a degree of dominion or control over the material, which will ultimately be determined by a jury.40

A crime occurs when a defendant maintains power and an intent to exercise control or dominion over the item—including the use of a third-party to bring about that control.41 Therefore, “possession” occurs even if the individual does not physically have the item in his or her hands or on his or her premises.42 The Court held that a defendant possesses child sexually abusive material when his computer contains temporary Internet files, revealing that he actually viewed that particular material while on his personal computer.43

3.    The Twenty-First Century

In 2002, the legislature expanded the definition of child sexually abusive material to include the following provisions:

(a) “Appears to include a child” means that the depiction appears to include, or conveys the impression that it includes a person who is less than 18 years of age, and the depiction meets either the following conditions:

(i) It was created using a depiction of any part of an actual person under the age of 18 . . .

(C) The depiction depicts or describes a listed sexual act in a patently offensive way . . .

(m) “Child sexually abusive material” means any depiction, whether made or produced by electronic, mechanical, or other means, including developed or undeveloped photograph, picture, film, slide, video, electronic visual image, computer diskette, computer or computer-generated image, or picture, or sound recording which is of a child or appears to include a child engaging in a listed sexual act; a book, magazine, computer, computer storage device, or other visual or print or pintable medium containing such a photograph, picture, film slide, video, electronic visual image, computer, or computer-generated image, or picture, or sound recording; or any reproduction, copy, or print of such a photograph, picture, film, slide, video, electronic visual image, book, magazine, computer, or computer-generated image, or picture, other visual or print or printable medium, or sound recording . . . .44

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