Opinion
363774
12-14-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. ROBERT ARTHUR JOHNSON, JR., Defendant-Appellant.
UNPUBLISHED
Ontonagon Circuit Court LC No. 2019-000043-FH.
Before: GLEICHER, C.J., and GARRETT and MALDONADO, JJ.
PER CURIAM.
Defendant appeals by leave granted his no-contest plea conviction of witness retaliation, MCL 750.122(8). Defendant was sentenced to time served. We affirm.
See People v Johnson, unpublished order of the Court of Appeals, entered January 5, 2023 (Docket No. 363774).
I. BACKGROUND
In 2014, defendant faced multiple convictions and was incarcerated for 12 months following an incident in which his dog got loose then allegedly chased and barked at a 14-year-old boy, and defendant then had an altercation with a police officer. The boy testified at defendant's trial, and after he was released, defendant sent the boy the following message over Facebook:
Hey there you lying pc of sht, I hope yr proud of yourself. Your fkn lies cost me a year in jail, as the video clearly shows u weren't walking to clinic, werent charged by a dog, nor ran as fast as u could into clinic, cuz u were afraid the dog would bite u. U must have been coached by the cops, and were coherced into lying for then. U dont know the difference bwtween right and wrong, and based on ur writing skills, you MUST be fkn retarded. Goes around comes around, and Karma WILL fuck you, for the lies u told, and the harm you caused me from ur choice to
lie. You should be ashamed of yourself, and I hope u suffer an extremely horrible death that causes u and ur family dire pain, like YOU put upon me, and consequences for being a lying little twerp who deserves to have his fkn tongue cut off, cuz if thats the BEST you can do with it, YOU DON'T NEED IT. Fk u and ur family, eat shit and die u lying pc of shit, middle finger high in the air to you, and when ur 18, Id. love to show u how much I and my family appreciates your fkn lies. Fuck you[.]
Defendant was then convicted of witness retaliation, but this conviction was vacated in a published opinion of this Court due to an instructional error. See People v Johnson, 340 Mich.App. 531; 986 N.W.2d 672 (2022).
On remand, defendant entered a no-contest plea to violating MCL 750.122(8). As part of the plea agreement, both parties agreed that "[defendant] preserves facial and as-applied challenges to MCL 750.122(8) on state constitutional grounds." At the plea hearing, in order to preserve the argument for appellate review, the court allowed defendant to address his constitutional issue on the record. Defendant argued (1) that the 1963 Michigan Constitution provides a higher protection for speech than the United States Constitution and (2) that a broad reading of the 1963 Michigan Constitution establishes that an abuse of the right to freedom of speech may only be punished by way of civil damages. The court denied defendant's oral motion to dismiss the case and concluded that Michigan caselaw is clear that, regarding the freedom of speech, the 1963 Michigan Constitution has been interpreted to afford the same protection as the United States Constitution. The court then accepted defendant's plea agreement.
Defendant now appeals, challenging MCL 750.122(8) on state constitutional grounds.
II. DISCUSSION
We "review de novo questions of constitutional law." People v Davis, 337 Mich.App. 67, 74; 972 N.W.2d 304 (2021). "Similarly, the proper application and interpretation of statutes and court rules raise questions of law that this Court reviews de novo." Id.
Defendant raises two challenges to the constitutionality of his conviction. First, defendant argues that his conviction for violating MCL 750.122(8) is unconstitutional because the 1963 Michigan Constitution provides broader protections for free speech than the First Amendment to the United States Constitution. Second, defendant argues that the language of Michigan's free speech clause restricts the state to civil, rather than criminal, penalties.
Published opinions of this Court have held repeatedly that the protections offered for free speech by the Michigan and United States Constitutions are coterminous. People v Burkman, 341 Mich.App. 734, 758; 992 N.W.2d 341 (2022); Truckor v Erie Twp, 283 Mich.App. 154, 162 n 3; 771 N.W.2d 1 (2009); In re Contempt of Dudzinski, 257 Mich.App. 96, 100; 667 N.W.2d 68 (2003); Owosso v Pouillon, 254 Mich.App. 210, 213-214; 657 N.W.2d 538 (2002); Burns v Detroit (On Remand), 253 Mich.App. 608, 620-621; 660 N.W.2d 85 (2002). While none of these cases deal directly with the statute pursuant to which defendant was convicted, their unambiguous statements regarding the conterminous nature of these provisions are equally applicable in this context. Therefore, we are bound to reject defendant's first argument. Defendant's second argument is more specific. The provision in Michigan's 1963 Constitution specifies that every person is "responsible for the abuse of" their right to free speech. Defendant construes this to mean that, even when speech is unprotected, only civil penalties are permitted rather than criminal penalties. However, as noted, we are bound to conclude that Michigan and federal free speech protections are coterminous, and it is undisputed that First Amendment jurisprudence permits criminal sanctions for unprotected speech. Therefore, concluding that Michigan's 1963 constitution allows only civil penalties would be inconsistent with the aforementioned caselaw declaring Michigan and federal free speech protection coterminous.
Affirmed.
MALDONADO, J. (concurring).
I concur fully in the lead opinion. I write separately because this appeal raises an important question, and while the caselaw from this Court answers the question, I do not believe it has ever been given the full consideration that is due. There are valid reasons to believe that the Michigan Constitution offers broader protection for speech than the United States Constitution, and I hope the Supreme Court takes advantage of this opportunity to examine the issue closely.
The lead opinion cites published opinions which state in no uncertain terms that the free speech protections afforded by the Michigan and United States Constitutions are "coterminous." However, these cases all turn on conclusory statements that lack analysis of the question. The earliest binding opinion of this Court in which these free speech protections were described as "coterminous" was Mich Up &Out of Poverty Now Coalition v Michigan, 210 Mich.App. 162, 168-169; 533 N.W.2d 339 (1995). This Court stated: "Our Supreme Court has interpreted the rights to free speech under the Michigan and federal constitutions, U.S. Const, Am I, as coterminous." Id., citing Woodland v Mich. Citizens Lobby, 423 Mich. 188, 202; 378 N.W.2d 337 (1985). However, this statement appears to have stemmed from a misreading of Woodland.
In Woodland, the Michigan Supreme Court examined the relationship between the federal and Michigan free speech provisions. Woodland, 423 Mich. at 202. The Court stated that "[t]he Michigan Constitution has been interpreted as affording broader protection of some individual rights also guaranteed by the federal constitution's Bill of Rights" but then noted that "[t]he Michigan Constitution has never been so interpreted in the free expression and petition context." Id. However, acknowledging that it had never been so interpreted is not the same as saying that the provisions are coterminous. Indeed, in the following sentence the Court said that "it is clear that the Michigan Constitution may afford broader free expression and petition protections against government infringements." Id. (emphasis added). It appears as though this misinterpretation of Woodland resulted in an erroneous, but nevertheless binding, statement of law making its way into a published opinion.
Woodland was again erroneously cited for the proposition that these provisions "are coterminous" in In re Contempt of Dudzinski, 257 Mich.App. 96, 100; 667 N.W.2d 68 (2003). Dudzinski was then cited for this proposition in People v Burkman, 341 Mich.App. 734, 758; 992 N.W.2d 341 (2022) and Truckor v Erie Twp, 283 Mich.App. 154, 162n 3; 771 N.W.2d 1 (2009). In Owosso v Poillon, 254 Mich.App. 210, 214; 657 N.W.2d 538 (2002) as well as Burns v City of Detroit, 253 Mich.App. 608, 620-621; 660 N.W.2d 85 (2002), Up &Out of Poverty was cited for this proposition, and as noted, Up &Out of Poverty cited Woodland. Even the Federal Court of Appeals for the Sixth Circuit has erroneously cited Woodland for the proposition that "the rights to free speech and association under the Michigan Constitution are coterminous with those under the First Amendment." Lucas v Monroe Co, 203 F.3d 964 (CA 6, 2000). In other words, when it comes to the proposition that the Michigan and federal free speech provisions are coterminous, all roads lead back to Woodland even though Woodland makes no such declaration.
"[T]he decisions of lower federal courts and other state courts are not binding on this Court ...." People v Woodward, 321 Mich.App. 377, 385 n 2; 909 N.W.2d 299 (2017).
In People v Lenio, unpublished per curiam opinion of the Court of Appeals, issued February 14, 2019 (Docket No. 339945), p 3, a panel of this Court asserted that "[t]he Michigan Supreme Court determined that the free speech protections of the Michigan Constitution and the United States Constitution are coterminous." However, this assertion was supported with a citation to a 1940 case, Book Tower Garage v Local No 415, Int'l Union, United Auto Workers of America, 295 Mich. 580; 295 N.W. 320 (1940), and Michigan's current constitution was not ratified until 1963.
In a recent case, Justice Zahra appeared to recognize the absence of any authority from the Supreme Court declaring the coterminous nature of these provisions that this Court has taken for granted. See League of Women Voters of Mich. v Secretary of State, 508 Mich. 520; 975 N.W.2d 840 (2022) (ZAHRA, J., concurring). In his concurring opinion, Justice Zahra quoted the free speech, press, assembly, and petition clauses of the First Amendment then followed the sentence with a footnote. Id. at 609. In this footnote, Justice Zahra said:
The individual right to solicit signatures to qualify an initiative petition is protected by the rights of free expression, assembly, and petition, guaranteed in Const 1963, art. 1, §§ 3, 5. While the Michigan Constitution may afford broader free expression and petition protections against government infringements than the United States Constitution, there is no contention here that it does. Accordingly, it is appropriate to review the free-speech rights at issue under both the United States and Michigan Constitutions as coterminous. [Id. at 609 n 83, quoting Woodland, 423 Mich. at 215 (quotation marks, citations, and alteration omitted; emphasis added).]
In other words, Justice Zahra described it as "appropriate" to treat these provisions as coterminous because neither party argued that they were not. Id. Importantly, even though he cited Woodland, Justice Zahra did not say that these provisions are coterminous, only that it was appropriate to treat them so for the purposes of that case. Id.
As defendant thoroughly argues in his brief, which was prepared by the State Appellate Defender Office (SADO), there is ample support for a reasonable jurist to conclude that the framers of Michigan's 1963 Constitution intended that broader protections for free speech be conferred at the state level than the federal level. Indeed, a simple glossing of the texts is sufficient to raise eyebrows. See People v Collins, 438 Mich. 8, 32; 475 N.W.2d 684 (1991) ("[C]ompelling reason for an independent state construction might be found if there were significant textual differences between parallel provisions of the state and federal constitutions ...."). The First Amendment to the United States Constitution provides, in relevant part: "Congress shall make no law . . . abridging the freedom of speech ...." U.S. Const, Am I. On the other hand, Article 1, § 5, of Michigan's 1963 Constitution provides: "Every 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 or of the press." Const 1963, art 1, § 5.
The United States Constitution provides that Congress cannot pass laws "abridging" free speech, while the 1963 Michigan Constitution bars passage of any law "enacted to restrain or abridge" free speech. At the federal level, there is only one statement regarding the freedom of speech, and this statement is the simple declaration that Congress may not pass any laws abridging it. The 1963 Michigan Constitution concludes with the same provision that is written in a more modern form of English; however, even this overlap contains an important difference. Applying normal rules of statutory construction, the addition of "restrain" adds meaning. Moreover, the 1963 Michigan Constitution has two original provisions that precede this analogous one. Michigan's provision opens with a declaration that all people may "freely speak, write, express and publish his views on all subjects," and this statement is then qualified with the statement that people are "responsible for the abuse of such right ...." Const 1963, art 1, § 5. Again, one could reasonably view it as unlikely that the framers of Michigan's 1963 Constitution would create these two original provisions if they were not intended to add meaning. See People v Cunningham, 496 Mich. 145, 154; 852 N.W.2d 118 (2014) ("This Court must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory." (quotation marks and citation omitted)); see also Council 23 American Federation of State, Co and Muni Employees, AFL-CIO v Civil Serv Comm of Wayne Co, 32 Mich.App. 243, 247; 188 N.W.2d 206 (1971) ("As a general rule the principles of statutory construction apply to construction of the Constitution.").
SADO's brief provides additional historical evidence suggesting that these provisions might not have been intended to be conterminous.
While decisions issued before November 1990 should be "considered to be precedent and entitled to significantly greater deference than are unpublished cases," this Court is not "strictly required to follow" such decisions. Woodring v Phoenix Ins Co, 325 Mich.App. 108, 114-115; 923 N.W.2d 607 (2018) (emphasis omitted).
In conclusion, whether the Michigan Constitution confers broader protection for free speech than its federal counterpart is an important question that has yet to be duly considered and deliberated. While this Court is bound by nearly 30 years of precedent to reject defendant's constitutional arguments, I hope that the Supreme Court takes advantage of this opportunity to finally consider this issue and render a definitive answer.