Opinion
No. 356600 No. 356602
06-02-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Macauley BURKMAN, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Jacob Alexander Wohl, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Richard L. Cunningham, Assistant Attorney General, for the people. Grabel & Associates, Lansing (by Scott A. Grabeland Timothy A. Doman ) for John M. Burkman. McManus & Amadeo PLLC (by William Amadeo) for Jacob A. Wohl.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Richard L. Cunningham, Assistant Attorney General, for the people.
Grabel & Associates, Lansing (by Scott A. Grabeland Timothy A. Doman ) for John M. Burkman.
McManus & Amadeo PLLC (by William Amadeo) for Jacob A. Wohl.
Before: Letica, P.J., and Redford and Rick, JJ.
Letica, P.J. In these consolidated appeals, defendants, John Macauley Burkman and Jacob Alexander Wohl, appeal as on leave granted the trial court's orders denying their motions to quash and dismiss. Defendants were both charged with attempting to influence, deter, or interrupt electors, MCL 168.932(a), conspiracy to commit that offense, MCL 750.157a, and two counts of using a computer to commit a crime, MCL 752.796.
People v Burkman , unpublished order of the Court of Appeals, entered November 9, 2021 (Docket Nos. 356600 and 356602).
This Court denied defendants’ applications for leave to appeal, People v Burkman , unpublished order of the Court of Appeals, entered May 6, 2021 (Docket No. 356600), and People v Wohl , unpublished order of the Court of Appeals, entered May 6, 2021 (Docket No. 356602), but the Supreme Court remanded to this Court for consideration as on leave granted. People v. Burkman , 508 Mich. 951, 964 N.W.2d 604 (2021 ), People v Wohl , 508 Mich. 951, 964 N.W.2d 585 (2021). We refer to "defendants" to reflect collective action but refer to each defendant by his last name where appropriate to reflect individual activity.
Defendants contend that the charges should have been dismissed because their dissemination of a robocall regarding possible repercussions of mail-in voting did not constitute a menace or use of other corrupt means or device under MCL 168.932(a). We conclude the robocall did involve menace and could also be construed as a corrupt means or device. Defendants further contend that MCL 168.932(a) is unconstitutional both on its face and as applied in this case. However, the phrase "other corrupt means or device" is not unconstitutionally vague. Concerning defendants’ First Amendment arguments, the robocall message was not a "true threat" but is still not subject to First Amendment protections because it was speech integral to criminal conduct. Accordingly, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Derrick Thomas was a retired firefighter, resident of the city of Detroit, and registered voter. As a regular voter, Thomas received "robocalls," i.e., prerecorded phone messages disseminated to a large group of people via a computer or robot. Thomas had telephone service through both a landline at his home and a cell phone. Thomas had placed himself on a do-not-call list several times, but it did not stop unsolicited calls to his home. His landline phone had a 313 area code, caller identification, and the ability to simultaneously record a message and play it aloud as it was recorded. On August 26, 2020, at 11:16 a.m., Thomas did not answer a phone call to his landline from a phone number he did not recognize. Still, he heard the message that was left as it was recorded:
According to the Federal Communications Commission (FCC), "Political campaign-related autodialed or prerecorded voice calls, including autodialed live calls, autodialed texts, and prerecorded voice messages, are prohibited to cell phones, pagers or other mobile devices without the called party's prior express consent." FCC, Rules for Political Campaign Calls and Texts < https://www.fcc.gov/rules-political-campaign-calls-and-texts> (accessed May 31, 2022) [https://perma.cc/Y2AF-5UMK]. However, "[p]olitical campaign-related autodialed or prerecorded voice calls are permitted when made to landline telephones, even without prior express consent." Id.
Hi, this is Tamika Taylor from Project 1599,[ ] the civil rights organization founded by Jack Burkman and Jacob Wohl. Mail-in voting sounds great, but did you know that if you vote by mail your personal information will be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts? The [Centers for Disease Control and Prevention (CDC)] is even pushing to use records from mail-in voting to track people for mandatory vaccines. Don't be finessed into giving your private information to the man. Stay safe and beware of vote by mail.
According to the FCC, Project-1599 is not a registered legal entity, but a branding name used to describe the activities conducted by defendants and JM Burkman & Associates, LLC, an entity providing registered lobbying services. See In re Burkman , 36 FCC Rcd 12979, 12980 n 6 (2021), available at < https://docs.fcc.gov/public/attachments/FCC-21-97A1.pdf> (accessed May 31, 2022) [https://perma.cc/4M9M-CXXH]. Although the FCC proposed a forfeiture of $5,134,500 against defendants and the lobbying entity, the basis of the fine was the unlawful robocalls to wireless numbers without subscribers’ prior express consent. For this reason, the content of the robocall was irrelevant to the proposed forfeiture. Id. at 12970-12980 & n 10.
The message upset Thomas because he believed it was designed to act as "a deter[r]ent from mail-in voting." Although Thomas did not believe that his direct physical safety was threatened, indirectly, he felt concerned about his safety because politics were polarizing. Thomas found the message offensive because it indicated that voting information would be used to allow the police to determine if an individual had any bench warrants, allow credit card companies to learn if an individual had any outstanding debts, and allow the CDC to force an individual to get vaccinated. Thomas felt appalled more than threatened by the message because it deterred mail-in voting during a pandemic when voting in-person was not as safe.
Thomas tried to notify the Detroit Election Commission about the phone call and message but was unable to speak to a person. Thomas then called a local news radio station, and he was interviewed for a story. He played the recorded message for the station employee and gave consent to have the radio station record the message.
As a result of the radio interview, Thomas was contacted by the Department of Attorney General (the Department). Thomas did not have firsthand knowledge about whether there was any truth to the contents of the message. He did not allow himself to be affected by the message and voted by mail.
The Department assigned Jeffrey Campbell the task of investigating the robocall. Campbell learned that the robocall was sent by a company called Message Communications, operated by Robert Mahanian. Additionally, the investigation determined that defendants paid to have the robocall sent by Mahanian's company and were responsible for the robocall's content. Through search warrants, Campbell obtained e-mail exchanges between defendants, and because of the volume of the e-mails, Campbell had not yet reviewed all of them at the time of the preliminary examination. In the e-mails Campbell had read, defendants discussed how to "hijack" this "boring" election. On August 19, 2020, Burkman wrote to Mahanian and copied Wohl that the checks paying for Mahanian's services had been sent in a "two[-]day pouch," and once they arrived, "then we attack." On August 22, 2020, defendants communicated to Mahanian that they were ready to begin the robocalls and that the payment had been mailed.
On August 25, 2020, Wohl e-mailed Burkman that the audio file of the robocall was attached. Wohl further suggested that the robocall be sent "to black neighborhoods in Milwaukee, Detroit, Philadelphia, Charlotte, Richmond, Atlanta and Cleveland." In response, Burkman suggested that the robocall be sent to "[Cleveland], Philadelphia, Minnesota, Chicago, New York City and Detroit." It was determined that the robocalls would be sent in "two waves" consisting of 267,000 calls in each wave.
On August 26, 2020, Mahanian notified defendants that their "campaign is currently running and recording." Defendants exchanged e-mails that the robocalls were being discussed on the Twitter platform. On August 26, 2020, at 12:36 p.m., Burkman wrote to Wohl to comment on the success of the robocalls, stating, "I love these robo calls getting angry black call backs, win or lose, the black robo calls was [sic] a great idea."
On August 27, 2020, Wohl seemingly wrote Burkman that they should deny sending the robocalls because it would generate more written discussion. Indeed, in response to a writer from a political news and opinion website, Burkman wrote, "[W]e have no connection to those robo calls." A short time later, Burkman addressed the same writer, stating:
[C]ouple points, one, no one in their right mind would put their cell [phone number] on [the] robo call. I bet a [George] Soros Group is trying to embarrass us. Thirdly, we have been asked by the Trump Campaign to do robo calls and politely declined. We don't do that stuff.
Additionally, a member of the Associated Press wrote Burkman and asked if defendants were involved in the robocall. Burkman wrote back, "[N]o sir, not at all...." However, on October 26, 2020, Burkman presented at a federal court hearing in New York and acknowledged that defendants had prepared and caused the robocall message to be sent. At the same hearing, Wohl affirmed the statement made by Burkman. Campbell was asked by Burkman's counsel whether there was other evidence that his client desired to deter mail-in voting. Although Campbell had not completed his review of the e-mails, he responded there were "e[-]mails between [defendants] discussing other plans to influence the election by creating false schemes, hiring actors to create false allegations and so forth." When asked to provide an opinion regarding the nature of the e-mail between defendants, Campbell responded that "one of their intentions [was] to influence the election unfairly" and to deter mail-in voting. He acknowledged that the e-mails did not discuss in-person voting.
During the preliminary examination, counsel for both defendants inquired whether Campbell had interviewed their clients. Campbell testified that he had asked to conduct interviews after the charges were issued, but his request was denied.
During Campbell's investigation, he learned that defendants had uploaded the content of the robocall. Furthermore, defendants, not Mahanian, chose the zip codes where the robocall was deployed. Campbell had no evidence that Mahanian altered the content of the robocall presented by defendants, and Mahanian kept detailed records addressing client involvement and content history. Khyla Craine, an attorney, served as the second in command of the Legal Services Administration, which included the Bureau of Elections, within the Michigan Department of State and provided legal and policy consultations. Craine also was the Chief Privacy Officer and addressed data-related questions. Craine described a robocall as "[a]n automated [message] dialed to a group of residents that will encourage them to do something, usually tied to [an] election, but it could be for any purpose[.]" Craine was made aware of this particular robocall in late August or early September 2020. There was an accusation "that it would be [a] voter suppression type of robo call targeted [at] African American citizens in the City of Detroit." Craine heard the robocall in October 2020.
Craine testified that information related to elections was part of a public record. However, there were search limitations on the record. She opined that the robocall's content regarding access to voter records by law enforcement, credit card agencies, or the CDC was false. A state election file contained the voter's name, address, participation in an election, and type of vote cast, i.e., mail-in or in-person. This information could be shared publicly. However, state law prohibits the voter's phone number or e-mail address from being shared. Because the qualified voter file contained limited data that did not include contact information, it did not make sense that law enforcement or credit card agencies would use this compiled material. Moreover, there were other compiled databases that law enforcement and credit card agencies used that contained the information they required for their work. For example, the driver information file provided companies more details than the qualified voter file. The Law Enforcement Information Network system was the database used by police agencies to achieve their objectives. Craine was unaware of any voting information requested by or given to the CDC, and she was unaware of any mandated vaccinations as stated on the robocall. Even Craine did not have access to the qualified voter files because the access was given on a need-to-know basis, and the recipients that received these files were vetted by the Bureau of Elections. Thus, Craine opined that law enforcement did not have access to the qualified voter file unless there was an investigation into an elections-related offense. Further, it was not used by credit card companies to collect outstanding debts. Thousands of entities request information from the driver files, not the qualified voter files. Craine opined that voters had no reason to be concerned about mail-in voting, but she "would have a concern if [voters] listened to this robo call and got misinformation [that affected] whether or not ... they would feel that mail[-]in voting was safe."
On cross-examination, Craine stated that a person or entity could not request the personal information of an individual voter from the qualified voter file. However, a person or entity could request this information for a group of voters, such as those registered in a specific jurisdiction, zip code, or house district. Furthermore, if debt collection was the reason for seeking this information, as implied in the robocall, other databases provided more suitable information. Craine affirmed that she was offended by the robocall because the state had the "responsibility ... to [e]nsure that all of our voters are able to vote without any type of issue and that they're not intimidated or given misinformation about the accuracy or security of their ballot." Also, on cross-examination, Craine again opined that the information contained in the robocall was false. Although Craine did not call the CDC to determine if it would seek to access voter files, there were no mandated vaccinations at that time.
Craine also never sought out defendants to inquire about their reason for the robocall. But, if they were motivated by concern over mail-in ballots, Craine found it curious that defendants only directed the robocall to Detroit residents rather than cautioning citizens across the state of Michigan about mail-in voting. In Craine's experience addressing voter suppression, the robocall fit into the pattern of misinformation that is directed to select individuals in a particular jurisdiction. When it was proffered that defendants’ purchase of information pertaining to the 313 area code of Wayne County included suburban communities that were "highly Caucasian," Craine maintained that Wayne County remained "disproportionately African American." Again, Craine testified that defendants appeared to target a particular group of people, not just general voters, in light of the fact that the robocall was disseminated to a limited area and not the entire state. Further, she opined that the use of phrases such as "mandatory vaccinations" and "the man" was verbiage directed to a particular group of people. Because the robocall attempted to deter mail-in voting and COVID-19 had disproportionately affected African Americans in Detroit, Craine concluded that suppression of the vote was the logical objective of the call in light of the combination of factors. In the 18 months that Craine had worked in her position, the police, credit card agencies, and the CDC had never used the qualified voter files.
At the conclusion of this testimony, defendants opposed the bindover, alleging that the statute did not govern the message at issue or did not clearly define the conduct it governed and that the message at issue contained speech that was protected by the First Amendment. The prosecution asserted that it presented sufficient information to support the elements and that the speech at issue was not protected.
The district court concluded that the crimes alleged were committed in the city of Detroit and that there was probable cause to believe that defendants committed them. The district court noted Craine's testimony that law enforcement, credit card companies, and the CDC did not access the qualified voter files to contact people or to execute their duties. It was also noted that defendants disseminated the call to a particular group of people in light of defendants’ "very strong political views," and the appropriate inquiry was not the effect of the message on the recipient, but defendants’ intent. The district court also stated that the message was directed to a community that was 85% African American, and this community equated the term "the man" to "the white man."
In the circuit court, defendants moved to quash the bindover. First, defendants argued that MCL 168.932(a) did not criminalize their conduct because they did not engage in acts of physical harm. Second, defendants submitted that MCL 168.932(a) was unconstitutional on its face and as applied and that their conduct was protected by the First Amendment. The prosecution opposed the motion, alleging that defendants’ actions were criminal and in violation of MCL 168.932(a) because they sent a threatening message designed to deter individuals from voting and arguing that a threat need not be physical to violate the statute. The prosecution further alleged that the message was not protected by the First Amendment because it was a true threat and there was a need to protect the right to vote. After hearing oral argument, the trial court rejected defendants’ arguments. The trial court concluded that the district court did not abuse its discretion in binding defendants over in light of the content of the message, the e-mails exchanged between defendants regarding their desire to "hijack" the election, the community to which the message was directed, and the circumstances surrounding the pandemic as residents were encouraged to stay home. The trial court also rejected the contention that the prosecution violated defendants’ First Amendment rights, noting that the state had a compelling interest in protecting the right to vote and that the Legislature had narrowly tailored MCL 168.932 to prevent any attempt to influence the vote or deter a vote. Moreover, the trial court characterized the message as not expressing an opinion, but presenting misleading and possibly false information. From this decision, defendants appeal.
II. STANDARDS OF REVIEW
A trial court's ruling regarding a motion to quash the information is reviewed for an abuse of discretion. People v. Zitka , 325 Mich.App. 38, 43, 922 N.W.2d 696 (2018). "An abuse of discretion occurs when a trial court's decision falls outside the range of reasonable and principled outcomes." People v. Burger , 331 Mich.App. 504, 510, 953 N.W.2d 424 (2020) (quotation marks and citation omitted). A trial court necessarily abuses its discretion when it commits an error of law. Id. The bindover decision is reviewed de novo to determine whether the district court abused its discretion without any deference to the circuit court decision. People v. Hawkins , 340 Mich.App. 155, 173, 985 N.W.2d 853 (2022). Similarly, the denial of a defendant's motion to dismiss charges is reviewed for an abuse of discretion. People v. Korkigian , 334 Mich.App. 481, 489, 965 N.W.2d 222 (2020). To determine whether dismissal is appropriate for the failure to demonstrate the defendant's intent, the facts and circumstances or context of the defendant's conduct may be considered. See People v. Gerhard , 337 Mich.App. 680 694-695, 976 N.W.2d 907 (2021) ; People v. Byczek , 337 Mich.App. 173, 187-190, 976 N.W.2d 7 (2021).
Issues involving statutory interpretation are reviewed de novo. People v. Lydic , 335 Mich.App. 486, 490, 967 N.W.2d 847 (2021). The lower court's determination that a defendant's conduct falls within the scope of a penal statute is reviewed de novo. Korkigian , 334 Mich.App. at 489, 965 N.W.2d 222. Further, application of the facts to the law is reviewed de novo. Lydic , 335 Mich.App. at 490, 967 N.W.2d 847. A challenge to the constitutionality of a statute presents a question of law reviewed de novo on appeal. People v. GR , 331 Mich.App. 58, 68, 951 N.W.2d 76 (2020).
III. APPLICATION OF MCL 168.932
Defendants first assert that their conduct does not constitute a violation of the voter-suppression statute. We disagree.
When interpreting a statute, the primary goal is to ascertain and give effect to the intent of the Legislature. People v. Morrison , 328 Mich.App. 647, 651, 939 N.W.2d 728 (2019). If the statutory language is plain and unambiguous, the legislative intent is clearly expressed, and judicial construction is neither permitted nor required. People v. Costner , 309 Mich.App. 220, 224, 870 N.W.2d 582 (2015). When interpreting a statute, the appellate court must give effect to every word, phrase, and clause and not render any part of the statute surplusage or nugatory. People v. Rea , 500 Mich. 422, 427-428, 902 N.W.2d 362 (2017). "When a word or phrase is not defined by the statute in question, it is appropriate to consult dictionary definitions to determine the plain and ordinary meaning of the word or phrase." Id. at 428, 902 N.W.2d 362. "In construing a legislative enactment we are not at liberty to choose a construction that implements any rational purpose but, rather, must choose the construction which implements the legislative purpose perceived from the language and the context in which it is used." In re D. , 329 Mich.App. 671, 688, 944 N.W.2d 180 (2019) (quotation marks and citation omitted).
A. MENACE
MCL 168.932 provides, in pertinent part:
A person who violates 1 or more of the following subdivisions is guilty of a felony:
(a) A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.
Defendants contend that the robocall was not menacing because it did not involve a threat of physical assault. Because the term "menace" is not defined in MCL 168.932, we may consult a dictionary definition to determine the plain and ordinary meaning of the word. Rea , 500 Mich. at 428, 902 N.W.2d 362. "Menace" is defined as "a show of intention to inflict harm"; "one that represents a threat"; "to make a show of intention to harm"; or "to represent or pose a threat to." Merriam Webster's Collegiate Dictionary (11th ed.). The term "menace" as defined in the dictionary does not require an accompanying physical component, but may be established through a threat. Indeed, the plain language of MCL 168.932(a) does not require that the menace be achieved through physical contact as reflected by the Legislature's further qualification that a person shall not attempt by menace, either directly or indirectly , to deter the elector from giving his vote. Thus, the behavior equated with menace may occur either directly or indirectly. The term "directly" is defined as "in a direct manner"; "in immediate physical contact"; and "in the manner of direct variation." Merriam Webster's Collegiate Dictionary (11th ed). Further, the term "indirectly" is defined as "deviating from a direct line or course"; "not straightforward and open"; and "not directly aimed at or achieved." Id. By the Legislature's allowance for the menace to occur in a direct or indirect manner, the menace may be achieved with or without physical contact. This challenge is without merit.
Nonetheless, defendants posit that the term "menace" has acquired a peculiar meaning in the law requiring physical harm, and because the robocall did not threaten physical harm, the motion to quash should be granted. Defendants’ citation of criminal cases involving an assault are not persuasive. There is no indication that the Legislature intended for the term "menace" to have the same meaning in the election statute that it has acquired in criminal-assault caselaw. Further, the interpretation urged by defendants is contrary to the rules governing statutory construction. We are to apply the term "menace" according to the legislative intent as expressed by the statutory language of the election law statute. See Costner , 309 Mich.App. at 225, 870 N.W.2d 582. Thus, the term must be examined in the context in which it is used in election law to implement the legislative purpose as expressed by the plain language. In re D. , 329 Mich.App. at 688, 944 N.W.2d 180. MCL 168.932(a) criminalized the interference with the exercise of the right to vote as well as a breach of the integrity of the process through interference, i.e., the interruption of the elector in giving his or her vote. The requirement of a physical component underlying the term "menace" in MCL 168.932(a), when the statute provides that the menace may occur directly or indirectly, is contrary to the legislative purpose and intent as expressed in the statute's plain language. Accordingly, we decline defendants’ invitation to read a physical component into the voter-suppression statute, MCL 168.932(a).
Moreover, the cases cited by defendants did not examine the precise meaning of menace. See People v. Johnson , 407 Mich. 196, 241, 284 N.W.2d 718 (1979) ( Levin , J., dissenting); People v. Doud , 223 Mich. 120, 123, 193 N.W. 884 (1923) ; Hamlin v. Mack , 33 Mich. 103, 106 (1875) ; People v. Plumsted , 2 Mich. 465, 466 (1853).
B. CORRUPT MEANS OR DEVICE
Alternatively, defendants assert that the robocall message did not constitute a "corrupt means or device" because it was not intrinsically unlawful like bribery or menace. We disagree.
In the discussion of this issue addressing the statute's terms, defendants raise a number of hypothetical circumstances. Because these hypotheticals were raised in the context of a statutory-construction challenge and not First Amendment freedoms, we must focus on the specifics of the case at hand. People v. Lockett , 295 Mich.App. 165, 176, 814 N.W.2d 295 (2012).
Specifically, invoking the statutory canon of construction noscitur a sociis , a doctrine that "stands for the principle that a word or phrase is given meaning by its context or setting," People v. Morris , 314 Mich.App. 399, 410, 886 N.W.2d 910 (2016) (quotation marks and citation omitted), defendants submit that "corrupt means or device" must be interpreted by reference to bribery and menace. Indeed, words in a statute should not be examined in a void, but should be read as a whole to harmonize the meaning and give effect to the whole act. People v. Hill , 486 Mich. 658, 668, 786 N.W.2d 601 (2010). Applying noscitur a sociis , words and clauses are not detached from those which precede and those that follow. Id. Although the meaning of grouped words should be given a related meaning, that does not require that the terms be subsumed or contrived to fall within the same definition. Rather, "it is clear that what a court should do in construing a term in a criminal statute for which there are a variety of potential definitions is to determine from among those definitions which the Legislature most reasonably intended by the specific context in which the term is found." Id. at 669, 786 N.W.2d 601. We decline the request to apply noscitur a sociis in order to achieve defendants’ goal of equating "corrupt means or device" with menace or bribery. To do so, we would fail to give effect to every word, phrase and clause in MCL 168.932(a) and render "corrupt means or device" surplusage or nugatory. Rea , 500 Mich. at 427-428, 902 N.W.2d 362. Further, there is no need to resort to such legal maxims given that this Court has previously explained in the context of misconduct in office that "corrupt behavior" refers to "intentional, purposeful, deliberate, and knowing wrongful behavior." People v. Waterstone , 296 Mich.App. 121, 138, 818 N.W.2d 432 (2012). Our Supreme Court has likewise described "corrupt intent" as a "sense of depravity, perversion or taint." People v. Perkins , 468 Mich. 448, 456, 662 N.W.2d 727 (2003). Additionally, both lay and legal dictionaries provide similar definitions of "corrupt." See Merriam Webster's Collegiate Dictionary (11th ed.) ("morally degenerate and perverted," "characterized by improper conduct (as bribery or the selling of favors)"; Black's Law Dictionary (11th ed.) ("[h]aving unlawful or depraved motives; given to dishonest practices, such as bribery") (emphasis added).
The evidence at the preliminary examination was sufficient to bind over defendants premised on "other corrupt means or device." The prosecution introduced e-mails exchanged between defendants in which they discussed "hi-jack[ing] this boring election." In order to achieve this goal, defendants composed a robocall message stating that mail-in voting "will" allow personal information to become part of a public database. It was then concluded that this database "will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts[.]" Further, the robocall posited that the CDC was "pushing" to use mail-in voting records to "track people for mandatory vaccines." Defendants then arranged to send the robocall message to predominantly African American metropolitan neighborhoods and expressed pleasure when they received "angry black call backs." When defendants were contacted about their participation in the robocall, they initially denied any involvement. Months later, during a separate court proceeding in another state, defendants admitted they were responsible for disseminating the robocall message. Craine opined that the robocall statements were false because the qualified voter files had never been used in the manner suggested by the robocall, nor would it be practical for law enforcement, creditors, or the CDC to use qualified voter files when other publicly available databases provided more personal details. Further, she noted that there were no mandatory vaccinations at the time of the robocall. Thomas, a voter who received the robocall, construed it as trying to deter listeners from mail-in voting and opined that many people may not want to vote at all if they felt that in-person voting during the COVID-19 pandemic was their only option. In light of the content of the robocall and the pandemic, a voter, contingent on his or her circumstances, could have deemed it ill-advised or unsafe to exercise the right to vote either through mail-in or in-person voting. A fact-finder could conclude from this evidence that defendants intentionally disseminated a dishonest message with the depraved motive of deterring voting. Gerhard , 337 Mich.App. at 694-695, 976 N.W.2d 907 ; Byczek , 337 Mich.App. at 187-190, 976 N.W.2d 7. Consequently, the trial court did not abuse its discretion by denying defendants’ motion to quash because there was probable cause to believe that defendants used a corrupt means or device to deter voting, MCL 168.932(a), in light of all the facts and circumstances. See Zitka , 325 Mich.App. at 43, 922 N.W.2d 696.
Campbell testified that he learned the robocall was disseminated by zip code, but did not specify the zip codes on the record. Thomas testified that he received the robocall to his landline in his Detroit residence which had a 313 area code. During the questioning of Craine, defense counsel noted that defendants had purchased information pertinent to the 313 area code in Wayne County. From the record, it is unclear if defendants purchased the qualified voter files of metro Detroiters or some other database and then directed the robocall to specific zip codes premised on race or other factors in light of the data purchased.
Defendants also argue that the bindover should have been quashed because MCL 168.932(a) prohibits influencing, deterring, or interrupting an elector from "giving his or her vote," and the robocall message only deterred one specific method of voting—mail-in voting—without discouraging traditional in-person voting. But as the prosecution points out in response, the timing of the robocall was significant. Our nation was in the midst of the COVID-19 pandemic, such that in-person voting carried with it a serious risk to a voter's health. The message could also deter all voting by robocall recipients who were entirely unable to vote in-person for reasons other than the risk of contracting or spreading COVID-19. Thus, whether defendants influenced, deterred, or interrupted electors from giving their votes under these circumstances is a question of fact. See Gerhard , 337 Mich.App. at 694-695, 976 N.W.2d 907 ; Byczek , 337 Mich.App. at 187-188, 976 N.W.2d 7.
Defendants also contend that there was no evidence that a voter was dissuaded from voting as a result of the robocall. Indeed, Thomas testified that he was appalled by the robocall's message, but it did not deter him from voting. The clear and plainly expressed language of MCL 168.932(a) prohibits the "attempt , by means of ... menace, or other corrupt means or device, either directly or indirectly, to influence ... or deter ... or interrupt the elector in giving his or her vote at any election held in this state." (Emphasis added.) See Costner , 309 Mich. App. at 224, 870 N.W.2d 582. Thus, the plain language punishes, as a felony, the attempt and there is no further requirement that the attempt be successful to punish the conduct.
Defendants contend that the robocall message cannot lead to criminal liability under MCL 168.932(a) because the message asserted opinion, plausibly true facts, or untrue facts defendants did not know to be false. As noted, MCL 168.932 provides, in pertinent part:
A person who violates 1 or more of the following subdivisions is guilty of a felony:
(a) A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.
Defendant's arguments address the intent required by MCL 168.932(a). As noted, for the robocall to be deemed a corrupt means or device, it must be established that defendants deliberately used a wrongful method with a depraved intent to interfere with voting. Regardless of whether the message was worded in the form of an opinion, possibly true, or unknowingly false, if defendants intended to influence, deter, or interrupt an elector in giving his or her vote, MCL 168.932(a) is satisfied. The prosecution presented sufficient evidence to establish probable cause that defendants had the requisite intent, and the trial court did not abuse its discretion by denying defendants’ motion to quash the bindover.
Defendants contend that the content of the robocall was plausibly true because law enforcement and credit card agencies use other databases in the course of their work. However, the robocall's message did not convey that other databases afforded those entities the information created by mail-in voting or that qualified voter files were subject to dissemination. Rather, defendants’ robocall message correlated mail-in voting to the creation of information leading to the possible execution of a bench warrant, adverse consequences for credit card debtors, and possible mandated vaccination. The implication being, that by using mail-in voting, the voter would incur unintended or unwanted consequences. That is, mail-in voting would essentially cause the voter's undoing. The message, its truth or falsity, and its implications as applied to MCL 168.932(a) present a question for resolution by the trier of fact.
Lastly, defendants submit that this Court should apply the rule of lenity because the definition of "other corrupt means or device" is ambiguous. "The rule of lenity provides that courts should mitigate punishment when the punishment in a criminal statute is unclear." People v. Johnson , 302 Mich.App. 450, 462, 838 N.W.2d 889 (2013) (quotation marks and citation omitted). Stated otherwise, "[t]he rule of lenity stands for the proposition that penal laws are to be strictly construed, with all doubts resolved in a defendant's favor," and "[t]he rule applies only when the statutory text is ambiguous[.]" People v. Arnold , 508 Mich. 1, 24 n.51, 973 N.W.2d 36 (2021). Because MCL 168.932(a) is not ambiguous and the Legislature's intent is clear from the statutory language, the rule of lenity has no application here. Id.
IV. FIRST AMENDMENT
Defendants contend that MCL 168.932(a) is unconstitutional on its face and as applied to defendants. We disagree. Rather, we conclude that MCL 168.932(a) is not void for vagueness nor is it unconstitutional as applied to defendants because it criminalizes speech integral to criminal conduct.
A challenge to the constitutionality of a statute presents a question of law reviewed de novo on appeal. GR , 331 Mich.App. at 68, 951 N.W.2d 76. The statute is presumed to be constitutional unless its unconstitutionality is plainly apparent, and when possible, the statute is to be construed as constitutional. Id. "The burden is on the party challenging the statute's constitutionality to prove its invalidity." Id.
"Congress shall make no law ... abridging the freedom of speech[.]" U.S. Const., Am. I. The First Amendment applies to the states through the Fourteenth Amendment, U.S. Const., Am. XIV. J & J Constr. Co. v. Bricklayers & Allied Craftsmen, Local 1 , 468 Mich. 722, 729, 664 N.W.2d 728 (2003). The Michigan Constitution provides the same protection as the First Amendment. Under Const. 1963, art. 1, § 5, "[e]very person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech...." "The rights of free speech under the Michigan and federal constitutions are coterminous." In re Contempt of Dudzinski , 257 Mich.App. 96, 100, 667 N.W.2d 68 (2003). "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." People v. Lawhorn , 320 Mich.App. 194, 198, 907 N.W.2d 832 (2017) (quotation marks and citation omitted). A statute may be deemed unconstitutionally vague for three reasons: "(1) it is overbroad and impinges on First Amendment freedoms; (2) it does not provide fair notice of the conduct proscribed; or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether an offense has been committed." Id. at 199, 907 N.W.2d 832 (quotation marks and citation omitted). Defendants submit that MCL 168.932(a) is void for vagueness because it does not adequately define "other corrupt means or device[s]."
"A statute provides fair notice when it give[s] a person of ordinary intelligence a reasonable opportunity to know what is prohibited." People v. Miller , 326 Mich.App. 719, 738, 929 N.W.2d 821 (2019) (quotation marks and citation omitted; alteration in original). "Fair notice exists when the statute's meaning can be determined by referring to judicial interpretations, common law, dictionaries, treatises, or the common meaning of words." Id. As explained earlier, the key term in the challenged phrase—corrupt—has been interpreted by judicial opinions. "Corrupt behavior" refers to "intentional, purposeful, deliberate, and knowing wrongful behavior," Waterstone , 296 Mich.App. at 138, 818 N.W.2d 432, while "corrupt intent" means a "sense of depravity, perversion or taint," Perkins , 468 Mich. at 456, 662 N.W.2d 727. A person of reasonable intelligence should therefore understand that he or she violates MCL 168.932(a) by using any intentional, purposeful, deliberate, and knowingly wrongful method with the depraved intent to interfere with voting. Defendants also contend that the phrase "corrupt means or device" makes the statute overbroad because it criminalizes protected speech in a manner that is not narrowly tailored to fit a compelling governmental interest. Defendants characterize this argument as a facial challenge, but only present arguments regarding the breadth of the statute as applied specifically to the robocall message. "A facial challenge attacks the statute itself and requires the challenger to establish that no set of circumstances exist under which the [a]ct would be valid. The fact that the ... [a]ct might operate unconstitutionally under some conceivable set of circumstances is insufficient." People v. Johnson , 336 Mich.App. 688, 692, 971 N.W.2d 692 (2021) (quotation marks and citation omitted; alterations in original). "An as-applied challenge alleges a present infringement or denial of a specific right or of a particular injury in process of actual execution of government action." Id. (quotation marks and citation omitted). Because defendants focus on specific application of the statute to the facts at hand, we treat this issue as an as-applied challenge.
In United States v. Stevens , 559 U.S. 460, 470, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010), the United States Supreme Court explained:
The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.
Consequently, the government may not ordinarily restrict speech on the basis of its content, except in a number of well-recognized areas. United States v. Alvarez , 567 U.S. 709, 716, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). "Among these categories are advocacy intended, and likely, to incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; so-called ‘fighting words’; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent ...." Id. at 717, 132 S.Ct. 2537 (citations omitted). The parties here disagree as to whether the prohibition against using corrupt means or devices to interfere with voting falls within the exceptions for true threats or speech integral to criminal conduct.
We agree with defendants that MCL 168.932(a) operates in this case to bar speech beyond the scope of the true-threat exception because it extends to threats of nonviolent harm.
"True threats" encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats "protect[s] individuals from the fear of violence" and "from the disruption that fear engenders," in addition to protecting people "from the possibility that the threatened violence will occur." Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. [ Virginia v. Black , 538 U.S. 343, 359-360, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (citations omitted; alteration in original).]
Relying on the Supreme Court's articulation of a true threat in Black , this Court has likewise stated that true threats involve threats of unlawful violence. TM v. MZ (On Remand) , 326 Mich.App. 227, 239, 926 N.W.2d 900 (2018). The message disseminated by defendants warned of harm to the listener's freedom, financial security, and bodily autonomy, but did not involve a "serious expression of an intent to commit an act of unlawful violence ...." Black , 538 U.S. at 359, 123 S.Ct. 1536. MCL 168.932(a), therefore, cannot avoid constitutional scrutiny in this case under the true-threat exception.
In reaching this conclusion, we are mindful of the decisions rendered in United States v Nguyen , 673 F.3d 1259 (C.A. 9, 2012), and Nat'l Coalition on Black Civic Participation v Wohl , 498 F. Supp. 3d 457 (S.D. N.Y., 2020). In Nguyen , the defendant, a Republican candidate for a seat in the United States House of Representatives, mailed a Spanish-language letter to registered voters with Hispanic surnames who were registered as Democrats or "decline[d] to state[ ]" their party affiliation. Nguyen , 673 F.3d at 1261. He challenged his conviction of obstruction of justice for failing to disclose the full extent of his knowledge regarding the mailing of the letter, which was designed to act as an attempt at voter intimidation. Id. at 1262. In addition to challenging whether there was probable cause to issue a search warrant, defendant alleged that his letter was political speech entitled to First Amendment protection. Id. at 1262, 1266. The Nguyen Court rejected the First Amendment challenge, citing Black , 538 U.S. at 360, 123 S.Ct. 1536, and concluding that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat." Nguyen , 673 F.3d at 1266 (brackets in original). However, the Nguyen Court never examined the additional aspect of Black that the statement communicate an intent to commit an act of unlawful violence to a particular individual or group. See id. at 1266. In Nat'l Coalition , the plaintiffs sued defendants in this case, among others, for sending the same robocall at issue in the present case to minority populations in New York City in violation of the Voting Rights Act, 52 USC 10307(b), and requested injunctive relief. Nat'l Coalition, 498 F. Supp. 3d at 463-466. The Nat'l Coalition Court recognized the Nguyen decision as well as the Black Court's requirement that a threat to commit a violent act accompany a true threat. The Nat'l Coalition Court nonetheless granted the request for injunctive relief despite a First Amendment challenge noting that a nonviolent or illegal per se act may still constitute interference, intimidation or coercion for purposes of the Voting Rights Act. Id. at 477-485. Because Michigan has applied the threat of violence to the true-threat exception to First Amendment protections, TM , 326 Mich. App. at 239, 926 N.W.2d 900, we do not conclude that Nguyen and Nat'l Coalition are dispositive. See MCR 7.215(J)(1) ("A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule.").
However, we conclude that the exception to First Amendment protection for "speech integral to criminal conduct" is applicable. See Alvarez , 567 U.S. at 717, 132 S.Ct. 2537. Giboney v. Empire Storage & Ice Co.. , 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949), the authority commonly cited for this exception, involved an injunction against peaceful picketing at an ice-distribution facility by members of an ice-peddlers union. Id. at 491-492, 69 S.Ct. 684. The union members’ goal was to compel the ice distributor to stop selling to nonunion peddlers, contrary to a state statute prohibiting participation in any "pool, trust, agreement, combination, confederation or understanding with any person or persons in restraint of trade or competition ...." Id. at 491 n 2, 492, 69 S.Ct. 684. Had the distributor agreed to stop selling ice to nonunion members, it too would have been in violation of the state antitrade restraint law. Id. at 493, 69 S.Ct. 684. The union peddlers argued, in part, that the injunction violated their First Amendment right to freedom of speech because they were merely publicizing truthful facts in a peaceful manner. Id. at 497-498, 69 S.Ct. 684. But the Supreme Court disagreed, reasoning that the "sole immediate object of the publicizing adjacent to the premises of [the distributor] ... was to compel [the distributor] to agree to stop selling ice to nonunion peddlers," contrary to state law. Id. at 498, 69 S.Ct. 684. The Court concluded that freedom of speech did not "extend[ ] its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Id. "[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Id. at 502, 69 S.Ct. 684.
Here, the purpose of MCL 168.932(a) is to preserve and protect the right to vote, a compelling state interest. See Burson v. Freeman , 504 U.S. 191, 198-199, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (recognizing protection of right to vote freely as compelling state interest); Mich. Alliance for Retired Americans v. Secretary of State , 334 Mich.App. 238, 257, 964 N.W.2d 816 (2020) (noting the state's compelling interest in preserving the integrity of elections). The statute carries out this goal by prohibiting influencing, deterring, or interrupting an elector from giving his or her vote by way of bribery, menace, or other corrupt means or device. To the extent a fact-finder agrees with the prosecution's theory that defendants spread a dishonest message with the depraved intent to discourage voting, defendants’ dissemination of the message deterred voting through corrupt means. Like the picketing in Giboney , the speech was an integral part of conduct criminalized by MCL 168.932(a) and should not be constitutionally protected merely because the conduct was "carried out by means of language." Giboney , 336 US at 502, 69 S.Ct. 684
Affirmed.
Rick, J., concurred with Letica, P.J.
Redford, J. (concurring in part and dissenting in part).
I concur with the majority's conclusion that the circuit court did not err by denying defendants’ motion to quash their bindover for a violation of MCL 168.932(a) under a theory of culpability alleging "other corrupt means or device." I likewise concur with the majority that the prosecution of defendants’ conduct does not violate defendants’ First Amendment rights to free speech because defendants’ speech was integral to criminal conduct. I dissent from the majority's conclusion that the conduct alleged and proofs offered below support a theory of culpability alleging a "menace" in violation of MCL 168.932(a), and I would reverse the trial court's decision in that regard.
As noted in the majority opinion, in these consolidated appeals, defendants, John Macauley Burkman and Jacob Alexander Wohl, appeal as on leave granted the trial court's orders denying their motions to quash and dismiss. Defendants were both charged with attempting to influence, deter, or interrupt electors, MCL 168.932(a), conspiracy to commit that offense, MCL 750.157a, and two counts of using a computer to commit a crime, MCL 752.796.
Defendants contend that the charges should have been dismissed because their dissemination of a robocall regarding possible repercussions of mail-in voting did not constitute a menace or use of other corrupt means or device under MCL 168.932(a). I conclude the robocall did not involve a menace to the call's recipient; however, it could be construed as a corrupt means or device. Defendants further contend that MCL 168.932(a) is unconstitutional both on its face and as applied in this case. I conclude the phrase "other corrupt means or device" is not unconstitutionally vague. Concerning defendants’ First Amendment arguments, the robocall message was not a "true threat," but is still not subject to First Amendment protections because it was speech integral to criminal conduct. Accordingly, I would reverse in part, affirm in part, and remand to the trial court for further proceedings consistent with this opinion. I generally concur with the majority's description of the basic facts and procedural history of the case, found in Part I of its opinion. I agree with the majority's recitation of the standard of review in Part II, the analysis of MCL 168.932 regarding a corrupt means or device in Part III(B), and the First Amendment analysis in Part IV.
I disagree with the majority's analysis in Part III(A) regarding the menace theory of liability under MCL 168.932.
I. APPLICATION OF MCL 168.932 REGARDING MENACE
Defendants assert that their conduct does not constitute a violation of the voter-suppression statute. I agree that the charged conduct and evidence presented below do not constitute a menace under the statute but disagree that they do not constitute the use or attempted use of a corrupt means or device.
MCL 168.932 provides, in pertinent part:
A person who violates 1 or more of the following subdivisions is guilty of a felony:
(a) A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.
Defendants contend that the robocall was not menacing because it did not involve a threat of physical assault. I agree.
Cases discussing menacing behavior indicate that to "menace" means to make a serious threat of assault by overt conduct that causes the victim to reasonably believe that the person making the threat will do what is threatened. See generally People v . Doud , 223 Mich. 120, 129-131, 193 N.W. 884 (1923) (explaining that Michigan law forbids the "menacing of human life" by threatening an assault with a dangerous weapon); People v . Reeves , 458 Mich. 236, 245, 580 N.W.2d 433 (1998) (describing menacing conduct as the defendant's placement of his hand in a bag and pointing it at the complainant while saying, "What's more important, your job or your life?"). In People v . Braman , 30 Mich. 460, 467-468 (1874), our Supreme Court discussed the proper interpretation of a statute that criminalized threatening to accuse another of a crime as a means of extortion and specifically considered what the Legislature meant regarding a threat:
Do not the expressions which the legislature have here employed fairly denote that the accusation threatened must be signified or indicated as one to proceed from the defendant ?
When the law speaks of his threat "to accuse," when it exclusively alludes to the defendant and the party threatened, and makes no reference to any one else, in the relation we are now considering, can it be supposed that it was intended to include the case of a threat that some third party would accuse?
If such had been the design, we may suppose the legislature would have expressed themselves in terms certainly more appropriate to convey it. Considering the phraseology used, and considering also that it occurs in a provision introducing and defining a criminal offense, I am unable to apply the expression broadly and as though the words imported no limitation. The idea conveyed is, as it seems to me, that the accusation menaced is to be one threatened to come from the party threatening, and not exclusively from some other. Hence, however malicious and wicked the threat, unless it menace a criminal accusation by the author of the threat, the case is not within the offense the legislature have seen fit to mark out:—1 Bish. C. L., § 67; Coe v Lawrence, 16 E. L. & E., 252; Reg v Williams, 1 Den. C. C., 39.
In this case, defendants did not express to recipients of the robocalls that defendants would do the acts threatened but stated that others might do the described offensive acts. Accordingly, defendants’ expression in the robocalls does not fit the jurisprudential concept of a menace or menacing, and therefore, the robocall was not menacing.
II. CONCLUSION
For the reasons set forth in that portion of the majority's opinion with which I concur and for the reasons set forth above, I conclude that the trial court did not err by denying the motion to quash the bindover in this matter on all grounds but for the menace theory of liability. I further conclude that the district court did not abuse its discretion in the decision to bind over defendants to the circuit court for trial for violation of the statute by corrupt means or device. I would affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
This opinion does not stand for the proposition nor should it be understood to express a conclusion that no set of facts or circumstances could be alleged to support a charge under the "menace" provision of MCL 168.932.