Cheboygan Sportsman Club v. Cheboygan County Prosecuting Attorney

STATE OF MICHIGAN

COURT OF APPEALS

CHEBOYGAN SPORTSMAN CLUB, FOR PUBLICATION

October 2, 2014

Plaintiff-Appellee,

v No. 313902

Cheboygan Circuit Court

CHEBOYGAN COUNTY PROSECUTING LC No. 12-008331-CZ

ATTORNEY,

Defendant-Appellant.

Before: RONAYNE KRAUSE, P.J., and FITZGERALD and WHITBECK, JJ.

WHITBECK, J (concurring in part and dissenting in part).

I agree that the trial court erred by applying the Sport Shooting Ranges Act. The

majority has ably stated the background facts and procedural history in this case, and I agree that

the Sport Shooting Ranges Act does not confer immunity in this case because this case does not

concern an issue of noise control or noise pollution.

However, I write separately because I would not address Cheboygan Sportsman Club’s

alternative ground for affirmance and because I strongly disagree with the majority’s method of

statutory interpretation to determine that issue. Accordingly, I dissent from that portion of the

majority’s opinion. I would reverse and remand for further proceedings.

I. THE SPORT SHOOTING RANGES ACT AND IMMUNITY

A. THE SPORT SHOOTING RANGES ACT

The Legislature originally enacted the Sport Shooting Ranges Act in 1989, in response to

the conflicts that the development of rural areas created between shooting ranges and new

neighbors.1 The Sport Shooting Ranges Act provides “various forms of protection to shooting

ranges, including providing immunity from certain nuisance actions to shooting ranges that

comply with generally accepted operation practices.”2 The Sport Shooting Ranges Act

1

Ray Twp v B & BS Gun Club, 226 Mich App 724, 727; 575 NW2d 63 (1997).

2

Id.

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specifically provides civil and criminal immunity from prosecution or nuisance actions involving

noise control or noise pollution laws or ordinances:

Notwithstanding any other provision of law, and in addition to other protections

provided in this act, a person who owns or operates or uses a Sport Shooting

Ranges that conforms to generally accepted operation practices in this state is not

subject to civil liability or criminal prosecution in any matter relating to noise or

noise pollution resulting from the operation or use of the range if the range is in

compliance with any noise control laws or ordinances that applied to the range

and its operation at the time of construction or initial operation of the range.[3]

B. THE WILDLIFE CONSERVATION ACT

The Wildlife Conservation Act provides the authority under which the Department of

Natural Resources regulates the taking of game animals.4 The Wildlife Conservation Act

provides in that “[a] person shall not hunt or discharge a firearm within 150 yards of an occupied

building . . . without obtaining the written permission of the owner, renter, or occupant of the

property.”5

C. APPLICATION OF THE SPORT SHOOTING RANGES ACT

The prosecutor contends that the trial court erred by concluding that the Sport Shooting

Ranges Act applied here because this matter does not concern noise or noise pollution. I agree.

The trial court concluded that it must apply the Sport Shooting Ranges Act over the

Wildlife Conservation Act because both statutes involve the discharge of firearms, and thus both

were applicable in this case. However, the Sport Shooting Ranges Act provides shooting ranges

immunity against noise complaints. This case does not involve noise complaints. It requires a

determination of whether a prohibition against discharging a firearm within 150 yards of an

occupied building is an issue of public safety or a hunting regulation under the Wildlife

Conservation Act. Neither party’s argument concerns noise or noise pollution. Thus, this suit is

plainly not a matter “relating to noise or noise pollution,” and the Sport Shooting Ranges Act

does not apply. The trial court erred when it determined that the Cheboygan Sportsman Club

was entitled to immunity from civil suit under the Sport Shooting Ranges Act.

I would therefore conclude that the trial court erred when it determined that the

Cheboygan Sportsman Club was entitled to immunity from prosecution under the Sport Shooting

Ranges Act because this action does not involve noise or noise pollution. I would reverse and

remand on this ground.

3

MCL 691.1542(1) (emphasis added).

4

MCL 324.40105.

5

MCL 324.40111(6).

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II. APPLICATION OF THE WILDLIFE CONSERVATION ACT

A. OVERVIEW

As an alternative ground for affirmance, the Cheboygan Sportsman Club contends that

the Wildlife Conservation Act does not apply because, when read in context, the statute limits

only the discharge of firearms related to hunting, not range shooting. The prosecutor responds

that the plain language of the specific provision is not that specific in scope, and prohibits

anyone from discharging a firearm within 150 yards of an occupied building. I note that, while

the Cheboygan Sportsman Club made this argument below, the trial court failed to address it and

it is not the focus of the parties’ briefs on appeal.

For these reasons, and although the issue is purely legal in nature, I would decline to

interpret Wildlife Conservation Act However, because the majority chooses to address the

interpretation of Wildlife Conservation Act, I will also address the issue in order to dissent from

the majority’s method of interpretation.

B. LEGAL STANDARDS OF STATUTORY INTERPRETATION

We in the legal profession hold firm to the belief, to the point of reducing the words to a

cliché, that the primary and overriding rule of statutory interpretation is that our goal is to give

effect to the intent of the Legislature.6 At the risk of being labelled a judicial heretic, I must say

that I have often found the repeated incantation of this hoary formula to be more than a little at

odds with reality. The basic premise of the formula is that there is some objective, collective

legislative intent that is capable of being ascertained through rational analysis.

But is this really true? Certainly, when a bill passes the Legislature, that passage is the

result of collective action by both houses of that Legislature. But in each house, that collective

action is itself the result of the individual actions of individual legislators, each casting his or her

own vote. And that individual legislator action may cast his or her vote for a very, very wide

variety of reasons. For example:

• The legislator and his or her staff may analyze the bill carefully and reach a conclusion

about the proper way to cast his or her vote. I have no doubt that that this frequently

occurs;

• But the legislator may also vote aye or nay for reasons of party loyalty; the legislator’s

caucus may have taken a position on the bill and the legislator may vote in concert with

that caucus position without a great deal of further analysis;

• Or the legislator may perceive that an important constituency favors or opposes the bill

and may vote accordingly;

6

See, for example, US Fidelity Ins & Guaranty Co v Mich Catastrophic Claims Ass’n (On

Rehearing), 484 Mich 1, 12; 795 NW2d 101 (2009).

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• Or the language of the bill may be the product of amendment and compromise and the

legislator, while having considerable doubts about the wording in one portion of the bill,

may nevertheless strongly favor the provisions of another portion and may vote for the

bill despite having reservations about some of its provisions;

• Or the legislator may simply follow the lead of another legislator who is a recognized

authority—such as a committee chair or a ranking member—in the particular area of the

law with which the bill deals;

• Or, finally, the legislator may think that the bill is unimportant and vote for it just as a

means of clearing the deck for other legislation in which he or she may be more

interested.

My point is a simple one: the legislative process is almost infinitely complex and the reasons

for an individual legislator’s vote on a particular piece of legislation can be almost infinitely

variable. To suppose that a collective intent somehow arises out of this welter of varied

individual motives is to elevate fiction over reality. It may be a useful fiction—perhaps even a

necessary fiction—but it is a fiction nonetheless.

To assist us in dealing with this fiction, we have developed over the years certain

conventions designed to lead us to legislative intent. Statutes provide some of these rules. For

instance, MCL 8.3a provides that common words and phrases should be construed according to

common meanings while technical words and phrases should be construed according to their

particular meanings, and MCL 8.4b provides that catch-line headings are not part of a statute.

The judiciary has created other rules of statutory interpretation, some of which have their

basis in logic. For instance, when the Legislature includes language in one part of a statute that it

omits in another, we make the logical assumption that the omission was intentional.7 Similarly,

we make the equally logical assumption that a more recent statute has precedence over an older

statute.8

Other rules have their basis in grammar. For instance, we conclude that the Legislature’s

use of the present perfect tense indicates that an action was started in the past and continues or

has been recently completed,9 and that a modifying clause modifies only the last antecedent

clause.10

7

See People v Peltola, 489 Mich 174, 185; 803 NW2d 140 (2011).

8

See Malcolm v City of East Detroit, 437 Mich 132, 139; 468 NW2d 479 (1991); Parise v

Detroit Entertainment, 295 Mich App 25, 28; 811 NW2d 98 (2011).

9

See People v Kolanek, 491 Mich 382, 407; 817 NW2d 528 (2012).

10

See Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999).

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As I stated above, this Court and the Michigan Supreme Court state, endlessly and

perhaps even liturgically, that our goal is simply to give effect to the intent of the Legislature.11

Again, this presumes a collective intent when, as I suggest, no such collective intent may exist.

But—fortunately and perhaps because we know we are not really Galahads searching for the

Holy Grail of collective legislative intent—we often follow that statement with a qualifier: the

language of the statute itself is the primary indication of the Legislature’s intent.12 Thus, I

suggest the statement that we are actually searching for a “statutory purpose” that we can glean

from the words expressing that purpose is a better expression of what courts do than relying on

the catch-phrase of “legislative intent.”

But whatever label we use—and I acknowledge that the concept of legislative intent is

firmly embedded in our jurisprudence—the problem lies in how we express the concept rather

than how we apply it. Michigan courts have consistently stated that if the plain and ordinary

meaning of a statute’s language is clear, we will not engage in judicial construction.13 If the

statute’s language is unambiguous, we must enforce the statute as written.14

C. INTERPRETATION OF THE WILDLIFE CONSERVATION ACT

In very simple language, the Wildlife Conservation Act prohibits hunting or discharging

a firearm within 150 yards of an occupied building:

An individual shall not hunt or discharge a firearm within 150 yards of an

occupied building, dwelling, house, residence, or cabin, or any barn or other

building used in connection with a farm operation, without obtaining the written

permission of the owner, renter, or occupant of the property.15

The majority uses the statute’s preamble, legislative history, and legislative analyses to

reach the conclusion that this statute does not mean what it says, but rather only means that a

person may not discharge a firearm within 150 yards of an occupied building while hunting.

Indeed, the majority’s very statement of the case—that this matter involves a declaratory

judgment holding that the “prohibition against discharging firearms within 150 yards of occupied

residences . . . is inapplicable to plaintiff’s shooting range”—illustrates the fundamental problem

here. The statute does not simply prohibit discharging a firearm within 150 yards of an occupied

building. It prohibits hunting or discharging a firearm in such a fashion. By changing the word

“or” to the word “and”—and this is exactly what the majority’s interpretation does—the majority

is able to affirm the trial court’s holding that the Wildlife Conservation Act is inapplicable to the

Cheboygan Sportsman Club.

11

See US Fidelity Ins & Guaranty Co, 484 Mich at 13.

12

Id. at 12.

13

Id. at 13.

14

Id. at 12.

15

MCL 324.40111(6) (emphasis added).

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This interpretation runs afoul of a number of the conventions—those basic and time-

honored rules of statutory interpretation—that we by necessity follow when we pursue the

chimera of collective legislative intent.

Here, as I have noted, the statute provides that an individual may not “hunt or discharge a

firearm within 150 yards of an occupied building . . . .” The Michigan Supreme Court has very

recently emphasized that this Court may not ignore statutory language in favor of a more

“reasonable” interpretation:

It is well established that

[w]e have no authority to treat any part of a legislative enactment,

which is not ambiguous in itself and is capable of reasonable

application, as so far unimportant that it is a matter of indifference

whether it is complied with or not. We must suppose the

legislature saw sufficient reason for its adoption, and meant it to

have effect; and whether the reason is apparent to our minds or

not, we have no discretion to dispense with a compliance with the

statute.[16]

That the statute appears to be inconvenient, unnecessary, or unwise is not a reason for this Court

to avoid the application of plain statutory language.17 The word “or” is a disjunctive term that

prohibits either action.18 Generally, this Court should follow the literal use of the term “or”

unless it renders the statute dubious.19

Here, the word “or” does not render the statute dubious. Thus, there is no reason to avoid

giving effect to the word “or.” Were we to give effect to the word “or,” it would prohibit both

actions—hunting or discharging a firearm within 150 yards of an occupied building—not merely

hunting. Contrary to the majority’s holding, therefore, such an interpretation would mean that

the Wildlife Conservation Act is applicable to the Cheboygan Sportsman Club’s shooting range

and prohibits target shooting on that range.

This distinction also illuminates how the majority’s opinion runs afoul of another of our

cherished conventions: that courts must avoid interpretations that render parts of a statute

16

People v Gaston (In re Forfeiture of Bail Bond), ___ Mich ___, ___; ___ NW2d ___ (2014),

slip op p 17, quoting Hoyt v East Saginaw, 19 Mich 39, 46 (1869).

17

Johnson v Recca, 492 Mich 169, 187; 821 NW2d 520 (2012); Mich Basic Prop Ins Assn v

Office of Fin & Ins Regulation, 288 Mich App 552, 560; 808 NW2d 456 (2010).

18

State of Michigan v McQueen, 293 Mich App 644, 672; 811 NW2d 513 (2011); People v

Kowalski, 489 Mich 488, 499-500; 803 NW2d 200 (2011).

19

Root v Ins Co of North America, 214 Mich App 106, 109; 542 NW2d 318 (1995).

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surplusage.20 By failing to interpret the word “or” as a disjunctive term, the majority limits the

application of the Wildlife Conservation Act only to hunting, and not to discharging a firearm.

The majority’s interpretation thus renders “discharging a firearm” surplusage.

And, by limiting the application of the Wildlife Conservation Act to “hunting contexts

and not to target practice contexts,” the majority’s interpretation runs afoul of yet another basic

rule of statutory interpretation: that this Court may not read provisions into a statute that the

Legislature chose to omit.21 The statute does not provide any exception for target shooting on

one’s own property. The majority instead creates one. But had the Legislature wished to create

such an exception, it could have done so. It did not create such an exception and this Court

should not read such an exception into an unambiguous statue.

In creating this exception, the majority’s reliance on legislative history and legislative

analyses is most troubling. The Michigan Supreme Court has expressed disapproval of reliance

on legislative analyses in the past, particularly when it creates a conflict with an unambiguous

statute’s plain language.22 In no uncertain terms, the Court stated that, “[I]n Michigan, a

legislative analysis is a feeble indicator of legislative intent and is therefore a generally

unpersuasive tool of statutory construction.”23 As the Court has noted, a legislative analysis does

not necessarily reflect the view of the Legislature:

The problem with relying on bill analyses is that they do not necessarily represent

the views of even a single legislator. Rather, they are prepared by House and

Senate staff. Indeed, the analyses themselves note that they do not constitute an

official statement of legislative intent.[24]

There is no reason in the language of the statute itself to ignore the placement and use of

the word “or” between the phrases “hunt” and “discharge a firearm.” This Court should

particularly not rely on legislative analyses to do so. Rather clearly, we are simply not free to

ignore the plain language of the statute and create an exception to remake the statute into a form

we find more reasonable.

III. RESPONSE TO THE MAJORITY’S COMMENTS

The majority makes several comments in its opinion to which I am obligated to respond.

First, the majority asserts that we must read statutes “in context.” I take this to mean that we are

20

Baker v Gen Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980); Johnson, 492 Mich at

177.

21

See In re Hurd-Marvin Drain, 331 Mich 504, 509; 50 NW2d 143 (1951); Mich Basic Prop Ins

Assn, 288 Mich App at 560.

22

People v Davis, 468 Mich 77, 79 n 1; 658 NW2d 800 (2003).

23

Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180 (2001).

24

Id. at 587 n 7.

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obliged to consider not only the “surrounding statutory framework” but also legislative history

and, presumably, legislative analyses. But if I am right, or mostly right, as to the dubious nature

of the concept of a collective legislative intent, then such context is conceptually irrelevant. And

I note that I am not alone in this critique; see Justice Antonin Scalia’s comment that “[W]ith

respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative

intent, so that any clues provided by legislative history are bound to be false.”25

Second, the majority categorizes my analysis in this dissent as “an impressive academic

exercise.” I appreciate the kind words. But I do not regard my analysis to be at all academic in

nature. Rather, I suggest, it is grounded in practical reality. Only the most innocent observer

would conclude that the chaos that occurs in the Rotunda of the Capitol on the last day of a

legislative session—with bills flying from one chamber to the other, with every available arm

being twisted and every possible political chit being called in, with compromises being made and

then unmade within a matter of minutes—is capable of producing a rational and understandable

collective legislative intent as to each individual piece of legislation. This is not an academic

observation; it reflects reality as I have seen it.

Third, the majority states, “Were we to disregard any established legal principle that

could conceivably be thought of—inaccurately in this case, we believe—as a ‘fiction,’ the result

would be chaos.” I am not a proponent of chaos nor do I propose to disregard established legal

principles. Rather, my critique of the majority’s approach is that disregards time-honored

principles of statutory construction to reach a result contrary to the actual words of the statute

construed according to such principles.

Finally, the majority states that, “We prefer an organic approach to what is really an

organic challenge.”26 I am not certain that I understand what this sentence means. But if it means

that the word “or” in a statute actually means “and” when considered organically, I obviously

disagree.

IV. CONCLUSION

I agree with the majority that the trial court erred when it determined that the Cheboygan

Sportsman Club was entitled to immunity from prosecution under the Sport Shooting Ranges Act

because this action does not involve noise or noise pollution. On that basis, I would reverse and

remand for further proceedings.

25

Scalia, A Matter of Interpretation, Princeton University Press, 17 (1997) (emphasis in

original).

26

See, similarly, the majority’s statement that, “ . . . we nevertheless do not share our colleague’s

departure from established precedent that recognizes that collective entities can be, though

simple and well-understood principles of group dynamics, effectively discrete entities unto

themselves and subject to analysis in their own right.”

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But I would not graft an interpretation onto the Wildlife Conservation Act (1) that

suggests that a person may not discharge a firearm within 150 yards of an occupied building

while hunting, (2) that thereby limits the application of the Wildlife Conservation Act only to

hunting, and not to discharging a firearm, rendering the “discharging a firearm” language of the

statute surplusage, (3) that reads provisions into the statute that the Legislature chose to omit,

and (4) that relies on the exceedingly frail reeds of legislative history and legislative analyses to

reach this result.

The majority states that, “We hold only that MCL 234.4011 [the Wildlife Conservation

Act] applies to hunting contexts and not to target practice contexts, so the act of conducting

target practice shooting on plaintiff’s [Cheboygan Sportsman Club’s] does not violate MCL

324.4011.” Actually, the majority’s opinion is simply that the Wildlife Conservation Act applies

only to hunting and therefore target practice shooting is not prohibited. The clear wording of the

statute is otherwise. I therefore respectfully dissent from the majority’s method of interpretation

of the Wildlife Conservation Act.

/s/ William C. Whitbeck

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