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Statutory Interpretation: Sometimes It Is Easier Than It Appears.

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III.     Analysis:

The majority in Hill cleverly manipulates the meaning of § 750.145c by the way that it defines “produce” and “make,” and because of this, it legislated from the bench and inevitably convinced Judge Hathaway to remand her prior holding.111

Richard Posner best described the varing schools of thought on interpretating legislation:

A court has, roughly speaking, a choice between two conceptions[:] . . . [o]ne is narrow [and] formalistic. . . . The other conception is broader, free-wheeling, [and] pragmatice. . . . A court that takes the first route will be included to [a] “narrow,” “literal,” “strict,” “originalist,” or [a] “textualist” interpretation of statutes and constitutions . . . [or] sticks closely to the surface meaning of the text as its authors would have understood that meaning. . . . A court that takes the second route will be inclined to loose construction, recognizing and trying to adjust for the limitations . . . that can make literal interpreation a trap. . . .112

The majority in Hill explained that the legislature cearly intended only those individuals who originally “produce” child sexually abusive material to be guilty of a felony.113 The only amendment that involved § 750.145c(2) occurred in 1987, the legislature deleted the term “commercial” from the statute.114 Therefore, the legislature intended to broaden the scope of § 750.145c(2) by incorporating acts involving personal use.115

Due to the lack of additional information provided by the legislative history, it is best to focus on the plain langauge of § 750.145c(2),116 which states:

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 . . . .117

As explained in People v. Adkinsand in the dissent in Hill, § 750.145c(2) is broken down into three distinct and separate categories.118 Two disjunctive modifiers are found immediately following “a person who persuades, induces, entices, coerces, causes, or knowingly . . . and immediately following “a person who arranges for, produces, makes, or finances. . . child sexually abusive material.119 A disjunctive modifer is used within sentences containing a series and the next to last word or phrase will contain a comma or semicolon followed by an “or.”120

Typically, items within a complex or complicated series are separated by semicolons while internal comas are used within the smaller series.121 The Michigan legislature, on the other hand, incorrectly uses comas between the complex series and the smaller series within the statute.122 However, there is no argument against the fact that § 750.145c(2) contains some kind of a list within a list,123 and thus as stated in Adkins, it contains three separate and distinct categories.124

With that said, the first category within § 750.145c(2) states: “[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 . . . is guilty of a felony.”125 It is clear that Hill did not induce, entice, nor coerce a child to engage in child sexually abusive material for the purpose of producing such material.126

The second category, within § 750.145c(2), states: “a person who arranges for, produces, makes, or finances . . . is guilty of a felony.”127 The Michigan Supreme Court’s holding focused almost entirely on two words “produce” and “make.”128 The Court stated that the definition for “produce” is dependant on “the conduct of those person[s]” that are responsible for “transform[ing] an idea into a reality [while] ‘makes’ should be interpreted in a similar manner as meaning ‘to cause to exist or happen’ or ‘to cause to become.’”129

The words “produce” and “make” are verbs130 and characteristically indicates “the grammatical center of a predicate and expresses an act, occurrence, or mode of being.”131 A “verb is perhaps the most important part of” a sentence because it asserts “something about the subject of the sentence” while expressing an “action, an event, or state . . . of being.”132

“Produce” actually has multiple definitions; however, the most appropriate to consider, based upon the context of § 750.145c(2) and the fact that it is being used as a verb, are the following:

to give birth or rise to[;] to extend in length, area, or volume[;] to make available for public exhibition or dissemination: as to provide funding[, or] . . . to oversee the making of [something[;] to cause to have existence or to happen, to give being, form, or shape[;] to compose, create, or bring out by intellectual or physical effort.133

While “make” is similarly defined as “to cause to exist, occur, or appear[;] to bring into being by forming, shaping, or altering material[;] to lay out and construct[;]”134 “to produce something[;] to produce a film or television programme is to direct, produce it, or act in it[;] or to perform an action.”135

So what is the proper definition for “produce” and “make” when used in the context of § 750.145c(2)? The Michigan Supreme Court construed the definitions of “produce” and “make” by the words surrounding them.136 In other words, the Court used the doctrine of noscitur a sociis, which directs a reader to define or construe unknown words based in light of the language surrounding them.137 The words “produce” and “make” are surrounded by “arranges for” and “finances.”138 The Supreme Court, using noscitur a sociis and its noted definitions, determined that § 750.145c(2) focused on punishing those individuals “who [were] involved in the creation or origination of child sexually abusive material.”139

Even though the Supreme Court’s decision is of valid considersation, it does not adequately represent the scope of “produce” and “make.” Based upon the definitions listed above, the best definition for “produce” is to give rise to, to bring into existence, or make available to the public for dissemination.140 “Make” should be defined as: to cause to happen, exist, appear, or to produce something or perform some action.141

Even if one considers “arranges for” or “finances” when interpreting the meaning for “produce” and “make,” it can be assumed that an individual in question would be assisting in procurring the ability to create child sexually abusive material or paying for the material needed to “produce” the material in question. This argument is maintained by the inference created due to the legislature’s lack of defining “arranges for” or “finances.”142

The question still remains whether Hill’s actions fit within the definition of “produce” and “make.” In essence, Hill created a copy of child sexually abusive material.143Therefore, he gave rise to, brought into existence, and made available for public dissemination something containing child sexually abusive material.144

In order to fully understand and analyze “produce” and “make” under § 750.145c, the phrase “child sexually abusive material” must be consulted, which is defined as:

any depiction, whether made or produced by electronic, mechanical, or other means, including . . . 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 . . . engaging in a listed sexual act; . . . or any reproduction, copy, or print of such a photograph, picture, film, slide, video, . . . book, magazine, computer, or . . . other visual or print or printable medium . . .145

This definition could not be any clearer, § 750.145c(1)(m) applies to “any depicition.”146 By the legislature expanding the definition of child sexually abusive material, it can be assumed that the legislature wanted to incapsolate as many acts as it could without being vague or overbroad.147

Now lets start bringing the pieces together. In order for Hill to be convicted under § 750.145c(2), he must have arranged for, produced, made, or financed “any depiction which is a child or appears to include a child engaging in a listed sexual act;” and includes “a book, magazine, computer, computer storage device or any reproduction, copy, or print of such a photograph, picture, film, slide, video, or electronic visual image.”148 So in essence, all Hill had to do was bring into existence a depiction in order to violate § 750.145c(2).

The Michigan Court of Appeals explained that the definition for child sexually abusive material is inserted into § 750.145c(2),149 and thus it becomes clear that an individual only needs to “make” or “create” some sort of visual depiction in order to be convicted for “production.” The Michigan Supreme Court would argue that when determining whether the acts of the defendant fall within § 750.145c(2), it is proper to first determine whether the material in question falls within the definition of child sexually abusive material, and then determine which section of the statute is applicable.150

The legislature inserts its own definition into a statute in order to add or subtract something from the ordinary meaning of a word or phrase,151 and thus the definition becomes binding on a court unless it is arbitrary or uncertain.152 The purpose of definitions is to not only allow for the reader to easily understand certain words used within the text, but also for drafters to minimize the size of each provision by keeping long and repitious definitions out of the text.153

With that said, there was no reason for the Michigan Supreme Court to hold that, when interpreting § 750.145c, a court must first determine if the material fits within the definition of child sexually abusive material, and then determine what act or subsection that the individual will fall into.154 No where in § 750.145c or legislative history is there any indication of the idea asserted by the Michigan Supreme Court.155Ultimately, the material in question must satisfy the definition of child sexually abusive material while simply falling within one of the specifically indicated criminal acts (albeit it be possessing, distributing, or producing) involving child sexually abusive material.156

There are many states that have a similar and comparable criminal statute, to § 750.145c.157 Some states specifically define the term “produce,” or some variation of “produce,” within its child porngraphy statutes.158 It seems that the legislatures’ intent, in these states, specifically indicate what constitutes a criminal act, and thus a court should have a clearer understanding when applying a statute to individual cases.159

However, other states create a more specific series of words in order to limit the scope of “production” by using noscitur a sociis.160 By specifing in more detail, it seems, that it is easier to determine what acts constitute criminalization and what acts do not. It would seem that courts in these states can easily identify the intent of the legislature by the surrounding words used in the individual statutes.161

One statute that stood above all others was Virgina’s child pornography statute;162 It is very similar to § 750.145c, the Michigan Statute.163 Virgina’s statute states: “[a] person shall be guilty [for the] production of child pornography when: [a person p]roduces or makes or attempts or prepares to produce or make child pornography; or who knowingly takes part in or participates in the filming, photographing, or other production of child pornography by any means.”164 The Eastern District Court of Virgina explained that the Virgina statute criminalizes those individuals who reproduce images by any means, which “includes those computer generated reproduction[s] of any sexually explicit . . . material.”165

The history of these statutes is not technically important because Michigan is not required to follow those states’ precedent; however, they do point out the options that the Michigan legislature had when it was drafted § 750.145c. The Michigan legislature chose to use the words “arranges for, produce, make, [and] finance” for a reason.166Of course the legislative history does not specifically indicate this proposal; however, logic deems it to be true because all anyone (outside of legislature) can do is base his or her opinion on what was done compared to what could have been done or rather what was not done.167

IV.     Conclusion:

A judge is not nor should be a legislature, rather he or she is supposed to interpret and apply the law as it is written. When read plainly and in its entirity, § 750.145c criminalizes an individual who “makes” a copy of child sexually abusive material the same as an individual who originally created the same child sexually abusive material.168 § 750.145c(2) has three distinct and separate acts listed within the provision which, if convicted, is a felony and punishable by a maxmium of twenty-years in prison.169

The second listed act states that an individual who “arranges for, produces, makes, or finances” child sexually abusive material is guilty of a felony. Based upon the dictionary definitions, the definition of child sexually abusive material, and the facts of Hill’s case, it is clear that Hill brought into existence a reproduced depiction of child sexually abusive material.170 The majority’s opinion in Hill has created “additional hurdles [for] the prosecution of those who copy child” sexually abusive material.171  Hill may not have been the original creator of the material; however, he created a new image, a new copy, and a CD-R containing those copied images. Therefore, because he created something, he is guilty of “producing” or “making” child sexually abusive material.

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