Order Michigan Supreme Court
Lansing, Michigan
May 29, 2009 Marilyn Kelly,
Chief Justice
137879 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 137879
COA: 277370
Jackson CC: 06-003887-FC
IAN ALBERT ANDERSON,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the November 18, 2008
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J. (dissenting).
I would grant leave to consider the Court of Appeals interpretation of MCL
750.85. Enacted as 2005 PA 335, effective March 1, 2006, MCL 750.85 established
torture as a new felony in Michigan. An assailant commits torture if, “with the intent to
cause cruel or extreme physical or mental pain and suffering, [he or she] inflicts great
bodily injury or severe mental pain or suffering upon another person within his or her
custody or physical control . . . .” MCL 750.85(1). MCL 750.85(2)(b) provides:
“‘Custody or physical control’ means the forcible restriction of a person’s movements or
forcible confinement of the person so as to interfere with that person’s liberty, without
that person’s consent or without lawful authority.” The Court of Appeals interpreted the
final clause of this definition to require a prosecutor to prove that the victim was confined
either “without that person’s consent” or “without lawful authority,” but not both.
Defendant argues that the statute requires proof of both lack of consent and lack of lawful
authority. He states that, otherwise, the distinction would be largely meaningless because
those with lawful authority to restrain others—such as parents or prison guards—will
rarely have the consent of their charges. He further claims that the Legislature intended
to exempt from the statute those with lawful authority to restrain others. Accordingly, he
argues that the statute’s use of the word “or” is ambiguous in this context and was
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misused as a conjunctive. See People v Gatski, 260 Mich App 360, 365 (2004) (“It is
well-established that the word ‘or’ is often misused in statutes and it gives rise to an
ambiguity in the statute because it can be read as meaning either ‘and’ or ‘or.’”). He
claims that the context here suggests that the Legislature meant the statute to apply only
to those who restrain another “without that person’s consent and without lawful
authority.” In light of defendant’s arguments, I would grant leave to appeal to consider
the meaning of the statute. Indeed, although the prosecution favors the result reached by
the Court of Appeals, it appears to concede that the statute is difficult to interpret.
Because a majority of this Court has denied leave in this case, I urge the Legislature to
provide guidance to the courts concerning the proper application of this relatively new
statute, perhaps by reconsidering the statute’s wording.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 29, 2009 _________________________________________
0526 Clerk