People v. Thompson

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 1, 2007

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 130825

KEITH DEMOND THOMPSON,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

TAYLOR, C. J.

The issue in this case is whether MCL 333.7405(1)(d), which, among other

things, forbids a person from knowingly “keep[ing] or maintain[ing]” a vehicle

that is used for keeping or selling controlled substances, requires for a conviction

that the prosecutor show, as was stated in People v Griffin, 235 Mich App 27, 32;

597 NW2d 176 (1999), that the defendant’s actions occurred “continuously for an

appreciable period.”

We reject the Griffin Court construction of the statute and hold that while

the statute precludes a conviction for an isolated incident without other evidence

of continuity, the statute does not require the prosecution to show that a

defendant’s actions occurred “continuously for an appreciable period.” Because
the Court of Appeals reversed defendant’s conviction for maintaining a drug

vehicle on the basis of the Griffin Court’s construction of the statute, we vacate the

judgment of the Court of Appeals and remand this case for reconsideration in light

of the test we adopt today.

I. FACTS AND PROCEEDINGS BELOW

Acting on a tip that defendant, who had the nickname of “Doughboy,” was

going to deliver some drugs at a parking lot of a restaurant, several law

enforcement officers went to that location. A white van fitting the description of

the vehicle “Doughboy” was expected to be driving entered and parked. A woman

who appeared to have been waiting for the white van got out of a nearby red sedan

and got into the van through its rear passenger door. A few minutes later she

stepped out of the van, got back into the sedan, and started to back up the sedan in

order to drive away. After the police stopped the sedan, they found four rocks of

crack cocaine on the floorboard of the driver’s side of the sedan, and a crack pipe

and lighter were found on the floor near the backseat. A passenger hiding in the

back of the sedan was found to be in possession of a small amount of marijuana.

As one of the officers approached the white van, defendant started getting

out of the van with a cell phone in his hand and he turned toward the van so that

the officer could not see his hands.1 Another officer observed a man in the

1
The prosecutor argued in his closing argument that defendant likely had
cocaine in his possession or on the driver’s seat and that he threw the drugs to the
passenger and told him to get rid of them.

2

passenger seat of the van remove a piece of plastic from his mouth and toss it to

the floor. This man was later taken to the hospital when, with increasingly slurred

speech, he told an officer that he had swallowed some cocaine. While no drugs

were found in the van or on the defendant, a $50 bill was found on the console of

the van as well as an empty and ripped plastic bag that had been twisted in a

manner typical of drug packaging. As for the woman who had entered the van, a

detective testified that defendant said that the woman had owed him money and

had paid him the $50 she owed him, and that he had then given her a $20 rock of

crack cocaine.2

After a jury trial, defendant was convicted of delivery of less than 50 grams

of cocaine, MCL 333.7401(2)(a)(iv), and maintaining a drug vehicle, MCL

333.7405(1)(d).3

2
Neither the passenger in the van, the woman in the sedan, nor the man in
the back of the sedan testified at trial. Defendant, however, did testify. He
admitted that his nickname was “Doughboy” but he denied selling any cocaine or
making the statement the detective attributed to him. Although one officer
indicated that the white van was the vehicle Doughboy usually drove, and
defendant acknowledged driving the van, there was no evidence that defendant
owned or leased the van.
3
MCL 333.7405(1)(d) provides that a person

[s]hall not knowingly keep or maintain a store, shop, warehouse,
dwelling, building, vehicle, boat, aircraft, or other structure or place,
that is frequented by persons using controlled substances in violation
of this article for the purpose of using controlled substances, or that
is used for keeping or selling controlled substances in violation of
this article.

3

 The Court of Appeals affirmed the cocaine delivery conviction but reversed

the conviction of maintaining a drug vehicle for the reason that there was

insufficient evidence to support the conviction.4 The Court of Appeals, relying on

Griffin, summarized its holding as follows:

The prosecution did not present evidence that defendant
exercised authority or control over the white van for an appreciable
period of time for the purposes of making the van available for
selling or keeping drugs. The prosecution only presented evidence
that defendant used the van for selling or keeping drugs on the night
of April 9, 2003. Because defendant’s conviction is not supported
by sufficient evidence, we reverse defendant’s conviction for
maintaining a drug vehicle.[5]

The prosecutor filed an application for leave to appeal regarding the

reversal of the conviction for maintaining a drug vehicle, and defendant filed an

application for leave to file a cross-appeal regarding the affirmance of his delivery

conviction. We granted the prosecutor’s application for leave to appeal, but

denied defendant’s cross-application.6

We limited the grant of leave to appeal to the issues whether a defendant

must “keep or maintain” a vehicle used for the purpose of selling a controlled

substance “continuously for an appreciable period of time” as required by Griffin,

supra at 32-33, in order to sustain a conviction under MCL 333.7405(1)(d) and

4
Unpublished opinion per curiam, issued February 23, 2006 (Docket No.
258336).
5
Id. at 2 (emphasis added).
6
475 Mich 907 (2006).

4

whether the evidence presented in this case was sufficient to sustain the

defendant’s conviction for keeping or maintaining a drug vehicle.

II. STANDARD OF REVIEW

Whether MCL 333.7405(1)(d) requires the prosecutor to show that a

defendant’s actions occurred “continuously for an appreciable period” is a legal

question, and we review legal questions de novo. People v Morey, 461 Mich 325,

329-330; 603 NW2d 250 (1999). Our fundamental obligation when interpreting

statutes is “to ascertain the legislative intent that may reasonably be inferred from

the words expressed in the statute.” Koontz v Ameritech Services, Inc, 466 Mich

304, 312; 645 NW2d 34 (2002). Pursuant to MCL 8.3a, undefined statutory terms

are to be given their plain and ordinary meaning, unless the undefined word or

phrase is a term of art.7 We consult a lay dictionary when defining common words

or phrases that lack a unique legal meaning. Robinson v Detroit, 462 Mich 439,

456; 613 NW2d 307 (2000). This is because the common and approved usage of a

nonlegal term is most likely to be found in a standard dictionary, not in a legal

dictionary. Horace v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762 (1998).

7
MCL 8.3a provides:
All words and phrases shall be construed and understood
according to the common and approved usage of the language; but
technical words and phrases, and such as may have acquired a
peculiar and appropriate meaning in the law, shall be construed and
understood according to such peculiar and appropriate meaning.

5

 III. ANALYSIS OF THE STATUTE

We have not previously had the occasion to construe MCL 333.7405(1)(d).

The Court of Appeals, however, has issued two published opinions addressing it in

the context of a charge of maintaining a drug house. First, in People v Bartlett,

231 Mich App 139, 147; 585 NW2d 341 (1998), the panel, citing Wahrer v State,

901 P2d 442, 444 (Alas App, 1995), explained, “Alas Stat 11.71.040(a)(5), which

mirrors MCL 333.7405(d); MSA 14.15(7405)(d), requires proof that the defendant

knew that the premises were being used for continuing illegal drug activity . . . .”

The Court rejected the defendant’s claim that the jury instructions were erroneous

when the trial court refused to tell the jury that “keep or maintain” required

“general supervisory control” rather than merely control or “general control.”

Second, in Griffin, supra, another panel, without reference to Bartlett, considered

a defendant’s claim that the prosecution failed to present evidence sufficient to

support his conviction of maintaining a drug house. The defendant did not contest

the fact that the house at issue was a drug house; he only challenged whether there

was evidence that he had kept or maintained it. The Court of Appeals determined

that the prosecution had presented sufficient evidence. In its opinion the panel

stated:

We hold that to “keep or maintain” a drug house it is not
necessary to own or reside at one, but simply to exercise authority or
control over the property for purposes of making it available for
keeping or selling proscribed drugs and to do so continuously for an
appreciable period. [Griffin, supra at 32 (emphasis added).]

With this in mind, we turn to an analysis of the proper meaning of this phrase.

6

 MCL 333.7405(1)(d) provides, as relevant here, that a person “[s]hall not

knowingly keep or maintain a . . . vehicle . . . that is used for keeping or selling

controlled substances in violation of this article.” To determine the proper

meaning of “keep or maintain” we first examine the statute itself. As with most

statutory phrases, neither the individual word “keep” or “maintain” nor the phrase

“keep or maintain” is defined in the statute.

Random House Webster’s College Dictionary (1991) defines “keep” as

“to maintain . . . , to cause to continue in a given position, state, course, or action.”

(Emphasis added.) It defines “maintain” as “to keep in existence or continuance.”

Id. (emphasis added).8 “Keep” is defined as “to maintain” and “maintain” is

defined as “to keep.” Thus, it appears that the terms “keep” and “maintain” are

synonyms. The dissent contends that these two terms must be given distinct

meanings because they are separated by the word “or.” We respectfully disagree.

The word “keep” is commonly understood to mean “maintain” and the word

“maintain” is commonly understood to mean “keep.” We cannot define these

terms in a manner that is inconsistent with how they are commonly understood

just because they are separated by the word “or.” In other words, the fact that

these two terms are separated by the word “or” does not give us the authority to

8
We note that the definitions found in Black’s Law Dictionary are
consistent with the definitions found in Random House Webster’s College
Dictionary. Black’s Law Dictionary (6th ed) defines “keep” as “[t]o maintain
continuously,” and it defines “maintain” as “keep in existence or continuance.”

7

give these two terms distinct meanings when they are commonly understood to

have the same meaning. If two words have the same meaning, then we must give

them the same meaning even where they are separated by the word “or.”

As discussed above, “keep” is defined as “to cause to continue” and

“maintain” is defined as “to keep in existence or continuance.” Id. (emphasis

added). The words “keep” and “maintain” both contain an element of

“continuity.” Even the dissent’s definitions of these terms contain an element of

“continuity.” The dissent defines “maintain” as “to keep in an existing state.”

Post at 3, quoting Webster’s Ninth New Collegiate Dictionary (1987). Keeping

something in an existing state necessarily requires some degree of continuity. The

dissent defines “keep” as “to retain in one’s possession.” Post at 4, quoting

Webster’s Ninth New Collegiate Dictionary (1987). “Retain” is defined as “to

continue to use.” Random House Webster’s College Dictionary (1991) (emphasis

added). Accordingly, some degree of “continuity” is an element even under the

dissent’s definition of “keep or maintain.” Therefore, even assuming that the

words “keep” and “maintain” have distinct meanings because they are separated

by the word “or,” the words “keep” and “maintain” both contain an element of

continuity. That is, regardless of how one defines the words “keep” and

“maintain,” one cannot avoid a definition that requires some degree of continuity.

Finding that evidence of continuity is required to convict a person of

“keeping or maintaining” a drug vehicle is consistent with this Court’s decision in

People v Gastro, 75 Mich 127; 42 NW 937 (1889). In Gastro, supra at 133-134,

8

this Court held that “[a] single act of lewdness or prostitution would not constitute

the offense [of keeping and maintaining a house of ill fame] which the statute

prohibits and punishes. . . .” Just as one does not keep and maintain a house of ill

fame by engaging in an isolated act of lewdness or prostitution in the house, one

does not keep or maintain a drug vehicle by engaging in an isolated act of selling

drugs out of the vehicle.

The phrase “keep or maintain” implies usage with some degree of

continuity that can be deduced by actual observation of repeated acts or

circumstantial evidence, such as perhaps a secret compartment or the like, that

conduces to the same conclusion.

We note that the Legislature has twice indicated9 that it desires MCL

333.7405(1)(d) to be interpreted in the same way similar acts in other states have

been interpreted.

9
First, MCL 333.7405(1)(d) was drawn from § 402(a)(5) of the Uniform
Controlled Substances Act of 1970. 9 ULA, part IV, § 402(a)(g), p 682. MCL
333.7121(2) is applicable to the statute at issue and states: “This article shall be
applied and construed to effectuate its general purpose to make uniform the law
with respect to the subject of this article among those states which enact laws
similar to it.”

Further, MCL 333.7405(1)(d) is part of the Public Health Code and §
1111(1) of this code provides: “This code is intended to be consistent with
applicable federal and state law and shall be construed, when necessary, to achieve
that consistency.” MCL 333.1111(1).

The interpretation that we adopt today is dependent on the language of the
statute. We do not interpret MCL 333.7121(2) and MCL 333.7405(1)(d) as
(continued…)

9

 In states with statutes substantially similar to MCL 333.7405(1)(d) there is

remarkable uniformity in giving meaning to “keep or maintain.”10 One of the

most encyclopedic discussions of the cases is found in Dawson v State, 894 P2d

672, 674 (Alas App, 1995), where the Alaska Court of Appeals, after canvassing

the other states, concluded that in virtually all other states the requirement to “keep

or maintain” requires “‘some degree of continuity’” id. at 676 (citation omitted),

and, fleshing that out, concluded that “courts have uniformly adopted the position

that the prosecution is required to prove, and the jury to find, ‘something more

than a single, isolated instance of the proscribed activity.’” Id., quoting Barnes v

State, 255 Ga 396, 402; 339 SE2d 229 (1986). The Alaska court then summarized

the prevailing law with respect to the keeping or maintaining element of drug-

house statutes as follows:

The state need not prove that the property was used for the
exclusive purpose of keeping or distributing controlled substances,
but such use must be a substantial purpose of the users of the
property, and the use must be continuous to some degree; incidental
use of the property for keeping or distributing drugs or a single,
isolated occurrence of drug-related activity will not suffice. The
purpose [for] which a person uses property and whether such use is
continuous are issues of fact to be decided on the totality of the

(…continued)

admonitions that we follow constructions placed on similar statutes in other

jurisdictions if those rulings are inconsistent with the words used in our statutes.

10
See, generally anno: Validity, construction, and application of state or
local law prohibiting maintenance of vehicle for purpose of keeping or selling
controlled substances, 31 ALR5th 760 (1995); anno: Validity and construction of
state statutes criminalizing the act of permitting real property to be used in
connection with illegal drug activities, 24 ALR5th 428 (1994).

10

 evidence of each case; the state is not required to prove more than a
single specific incident involving the keeping or distribution of drugs
if other evidence of continuity exists. [Dawson, supra at 678-679.]

We find this interpretation persuasive and consistent with the interpretation

that we have adopted after analyzing the words of the statute.11

With regard to the Court of Appeals Griffin test, which held that MCL

333.7405(1)(d) requires a showing that the defendant’s actions occurred

“continuously for an appreciable period,” we believe it likely that the panel was

attempting to draw from Dawson but mistakenly utilized only one part of the

Dawson formulation, i.e., that the defendant’s actions “must be continuous to

some degree.” Dawson, supra at 678-679. The difficulty with this truncated

Griffin definition is that it unwarrantedly establishes a higher burden of proof than

is justified by the statutory language. While the Dawson court’s formulation,

“continuous to some degree,” would be satisfied by a showing of intermittent use,

the Griffin Court’s language, “continuously for an appreciable period,” seems to

suggest a longer period of use with few or no interruptions. Having said that, we

11
The prosecutor concedes that only one state, Delaware, has adopted a test
that would allow a conviction upon proof of a single incident without more. Priest
v State, 879 A2d 575 (Del, 2005). The Delaware court acknowledged that “most,
if not all” other states with similar statutes reject the single-occurrence approach.
Id. at 580 n 22. The Delaware court’s approach is not persuasive because its
decision was driven by policy and did not trace the words of the statute. Thus, as
we have explained, we reject the Delaware construction and abide by the
overwhelming majority view that proof of a single incident, without some other
evidence of continuity, is not enough to establish a violation of MCL
333.7405(1)(d). We would not, as would Justice Corrigan, have Michigan join the
(continued…)

11

reiterate that “keep or maintain” is not synonymous with “use.” Hence, if the

evidence only shows that defendant used a vehicle to keep or deliver drugs on one

occasion, and there is no other evidence of continuity, the evidence is insufficient

to establish that defendant kept or maintained a drug vehicle in violation of MCL

333.7405(1)(d).

Having clarified the correct construction of MCL 333.7405(1)(d), and

because the Court of Appeals analyzed defendant’s claim regarding the evidence

that he kept or maintained a drug vehicle under language we have rejected today,

we find it appropriate to have the Court of Appeals determine in the first instance

whether the evidence supporting defendant’s conviction of maintaining a drug

vehicle was sufficient in light of the interpretation of the statute set forth in our

opinion today. The parties shall be allowed to file supplemental briefs.

IV. RESPONSE TO THE DISSENT

Justice Corrigan’s partial dissent accuses us of giving offenders a free pass

to use a vehicle to keep or sell drugs. We, of course, have done no such thing.

Rather, we have simply determined, on the basis of the words of the statute and

consistently with the overwhelming majority of other courts that have construed

similar statutes, that the Legislature did not intend a conviction for knowingly

keeping or maintaining a drug vehicle to obtain if there was only evidence of a

(…continued)

Delaware interpretation because we find the majority view accurately interprets

our similarly worded statute.

12

single use. Defendants who possess or deliver controlled substances are already

subject to felony prosecution for possession or delivery independent of evidence

of a vehicle’s use. There is no free pass.

IV. CONCLUSION

For the reasons set forth in this opinion, we vacate the judgment of the

Court of Appeals and remand the case to the Court of Appeals for reconsideration

of defendant’s sufficiency of the evidence argument in light of this opinion.

Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Stephen J. Markman

KELLY, J. I concurr in the result only.

Marilyn Kelly

13

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 130825

KEITH DEMOND THOMPSON,

Defendant-Appellee.

MARKMAN, J. (concurring).

I fully join the majority opinion but write separately only to address two

provisions of law that are referenced in the majority’s analysis, see ante at 9 n 9.

First, MCL 333.7121(2) states:

This article shall be applied and construed to effectuate its
general purpose to make uniform the law with respect to the subject
of this article among those states which enact laws similar to it.

Second, MCL 333.1111(1) states:

This code is intended to be consistent with applicable federal
and state law and shall be construed, when necessary, to achieve that
consistency.

In light of these provisions, the majority opinion reasonably surveys the decisions

of foreign courts that have interpreted the dispositive phrase in this case, “keep or

maintain,” but concludes that this Court does not construe §§ 7121(2) and 1111(1)

as “admonitions that we follow constructions placed on similar statutes in other

jurisdictions if those rulings are inconsistent with the words used in our statutes.”
Ante at 9 n 9. I agree with this observation, but also note that if these provisions

are, in fact, understood as “admonitions” to that effect, they would be beyond the

authority of the Legislature.

This Court has said on innumerable occasions that it is obligated to defer to

legislative judgments, even when such judgments are far afield from our own.

This is because the legislative power is the power to undertake policy judgments

and to set forth the law. Few judicial bodies have been more deferential toward

legislative judgments than this Court.

However, when the Legislature purports to exercise its legislative power to

dictate a rule of interpretation to this Court, as some might read §§ 7121(2) and

1111(1) as doing, the Legislature exceeds its authority and impinges on the

judicial power, which is the power to interpret the law and say what that law

means. It is this Court’s responsibility to exercise the judicial power and to give

reasonable meaning to the law by examining its language, structure, organization,

and purpose. I do not believe that the Legislature can impose any different rules

of interpretation upon this Court. Although on occasions I have acquiesced in the

application of legislative rules of interpretation, I am increasingly of the view that

such rules are not only incapable of coherent application, but that they trespass

upon the authority of the judiciary.

Concerning §§ 7121(2) and 1111(1) in particular, there is certainly no

harm, and perhaps value, in our Legislature encouraging this Court to assess the

decisions of foreign courts that have interpreted “keep or maintain.” However, the

2

limitation of such provisions is manifest in the following questions: Must this

Court construe Michigan law to make it uniform with the laws of another state that

have been misinterpreted? May this Court take into consideration dissimilarities

between the law of Michigan and those of another state? How does this Court

render “uniform” its interpretations if there are disagreements to this effect among

the other states? Can “uniformity” or “consistency” in the interpretation of the

law be practically achieved by the judiciaries of 50 sovereign jurisdictions?

If it is the Legislature’s intent that the law be interpreted in a particular

manner, the most reliable means of securing this result is for the Legislature to

write the law in that manner. Although I do not doubt that an ancient law that has

been given meaning over the centuries by courts of other jurisdictions can

sometimes helpfully be referenced by the Legislature, in the final analysis, the

constitutional rule must be that the Legislature either say clearly what it intends or

else recognize that its less clearly stated intentions will be discerned through

traditional methods of interpretation. A court cannot be obligated to say that the

law states something other than what it states. This is no less true where a court of

another jurisdiction has reached a contrary conclusion.

Stephen J. Markman

3

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 130825

KEITH DEMOND THOMPSON,

Defendant-Appellee.

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

I concur with the majority’s ruling that MCL 333.7405(1)(d), which forbids

a person from “keep[ing] or maintain[ing]” a vehicle that is used for keeping or

selling controlled substances, does not require the prosecution to show that the

defendant’s actions occurred “continuously for an appreciable period,” as stated in

People v Griffin, 235 Mich App 27, 32; 597 NW2d 176 (1999).

I part company with the majority because it has violated a cardinal rule of

statutory construction. Fundamentally, the majority has disregarded the

Legislature’s choice of the disjunctive term “or” (“keep or maintain”) and

effectively substituted the conjunction “and” (“keep and maintain”). It has

achieved this override of the Legislature’s choice by defining the common terms

“keep” and “maintain” as synonymous when they also have different and distinct

dictionary definitions.
 I also dissent from the majority’s holding that “the statute precludes a

conviction for an isolated incident without other evidence of continuity . . . .”

Ante at 1. By requiring “evidence of continuity” to prove the crime, the majority

has essentially adopted the Court of Appeals holding in Griffin that the

prosecution must show that the defendant’s actions occurred “continuously for an

appreciable period.” It has merely deleted the “appreciable period” component of

the continuity requirement. In my view, the majority continues to give offenders a

“free pass.” Instead, I would hold that evidence of an isolated incident of using a

vehicle for keeping or selling controlled substances is sufficient to give rise to

criminal liability under the unambiguous language of the statute if the offender

keeps the vehicle by retaining it in his possession or power.

The first step we take in determining the Legislature’s intent is to examine

the plain language of the statute. People v Anstey, 476 Mich 436, 442-443; 719

NW2d 579 (2006). MCL 333.7405(1)(d) provides, in pertinent part, that a person

“[s]hall not knowingly keep or maintain a . . . vehicle . . . that is used for keeping

or selling controlled substances in violation of this article.” The words “keep” and

“maintain” are common words that can be given distinct meanings. Therefore, a

lay dictionary should be used to define these words. See Horace v City of Pontiac,

456 Mich 744, 756; 757 NW2d 762 (1998) (“[W]hen considering a nonlegal word

or phrase that is not defined within a statute, resort to a layman’s dictionary such

as Webster’s is appropriate. This is because the common and approved usage of a

nonlegal term is most likely to be found in a standard dictionary and not a legal

2

dictionary.”) In ascertaining the common and ordinary meaning of a statutory

term, a court should determine the meaning of the term at the time the statute was

enacted, and may consult dictionaries from that time to determine that meaning.

Cain v Waste Mgt, Inc (After Remand), 472 Mich 236, 247; 697 NW2d 130

(2005).

The majority avoids the plain meaning of the text of the statute by declaring

that the words “keep” and “maintain” are synonymous. The lay dictionary

definition of “maintain” is “to keep in an existing state.” Webster’s Ninth New

Collegiate Dictionary (1987), p 718.1 The majority selects one definition of

“keep” from the many available dictionary definitions, and declares that the word

“keep” is synonymous with the word “maintain.” But construing the terms as

synonymous disregards the Legislature’s use of the disjunctive term “or.”2 By

using the disjunctive, the Legislature defined two separate ways of committing this

crime.3 In order to give meaning to the term the Legislature employed, the statute

must be construed to give the words “keep” and “maintain” distinct meanings. To

hold otherwise violates “‘the fundamental rule of [statutory] construction that

1
None of the other definitions of “maintain” is appropriate in the context of
the statute.
2
Webster’s Ninth New Collegiate Dictionary (1987), p 829, offers the
following relevant definition of “or”: “used as a function word to indicate an
alternative.”
3
Had the Legislature intended that the words “keep” and “maintain” have
one meaning, it would not have used two words separated by “or,” but instead
would simply have used one word or the conjunctive word “and.”

3

every word should be given meaning and no word should be treated as surplusage

or rendered nugatory if at all possible.’” Pittsfield Charter Twp v Washtenaw Co,

468 Mich 702, 714; 664 NW2d 193 (2003), quoting Feld v Robert & Charles

Beauty Salon, 435 Mich 352, 364; 459 NW2d 279 (1990). By holding that the

words “keep” and “maintain” are interchangeable, the majority fails to give

meaning to the Legislature’s clear intent to give variant meaning to the two words.

Additionally, by using synonymous definitions of “keep” and “maintain,” the

majority renders one of these two words mere surplusage.4

The dictionary also defines “keep” as “to retain in one’s possession or

power.” Webster’s Ninth New Collegiate Dictionary (1987), p 658. This

definition of “keep” is not synonymous with “maintain,” is a commonly

understood meaning of the word, and is appropriate in the context of the statute.

4
This is one of the reasons why cases from sister states, including Dawson
v State, 894 P2d 672 (Alas App, 1995), are not particularly helpful. These cases,
like the majority in the instant case, fail to apply the plain language of the statute
and fail to differentiate between the words “keep” and “maintain.” Further, many
cases from other states also require the prosecution to show that the defendant kept
or maintained the vehicle or house for the purpose of keeping or selling controlled
substances. See, e.g., Barnes v State, 255 Ga 396, 402; 339 SE2d 229 (1986)
(“[I]n order to support a conviction under § 16-13-42 (a) (5) for maintaining a
residence or other structure or place used for keeping controlled substances, the
evidence must show that one of the purposes for maintaining the structure was the
keeping of the controlled substance.”) No language in our own statute requires the
prosecution to prove that the vehicle was used for the purpose of keeping or
selling controlled substances. The only mention of “purpose” in MCL
333.7405(1)(d) refers to the preceding clause of the statute providing that a person
may not maintain a vehicle “that is frequented by persons using controlled
substances in violation of this article for the purpose of using controlled
substances . . . .” That clause is not at issue in the instant case.

4

Thus, we should employ this definition in interpreting the statute. Using this

definition of “keep,” the majority correctly concludes that the Court of Appeals, in

Griffin, supra at 32, added an element to the statutory language by requiring the

prosecution to show that the defendant’s actions occurred “continuously for an

appreciable period.” But the majority incorrectly holds that the word “keep”

requires the prosecution to provide some evidence of continuity. I disagree that

the word “keep,” as defined above, “implies usage with some degree of continuity

that can be deduced by actual observation of repeated acts or circumstantial

evidence . . . .” Ante at 9. In arguing that the above definition of “keep” requires

continuity, the majority consults Random House Webster’s College Dictionary

(1991), which defines “retain” as “to continue to use.” But Webster’s Ninth New

Collegiate Dictionary (1987) defines “retain” as “1 a: to keep in possession or use

. . . 2: to hold secure or intact.” Id. at 1006. Neither of these definitions from

Webster’s Ninth New Collegiate Dictionary (1987) requires continuity. Thus, I

cannot agree with the majority that “keep” or “retain” requires continuity.

Under the above definition of “keep,” the prosecution need only show that

the defendant retained a drug vehicle in his possession or power. This could

mean, for instance, that the defendant just began using the vehicle to keep drugs

earlier that day. The focus should not be on how long the defendant kept drugs in

the vehicle or sold the drugs from the vehicle; if a defendant uses a vehicle even

one time for such a purpose, he has retained a drug vehicle in his possession, i.e.,

“kept” a drug vehicle. The focus should instead be on the degree of the

5

defendant’s control or use of the vehicle in connection with the storage or selling

of drugs. See People v Bartlett, 231 Mich App 139, 152; 585 NW2d 341 (1998)

(a person may be deemed to keep or maintain a drug house if that person has the

ability to exercise control or management over the house).

I further disagree with the majority’s reliance on People v Gastro, 75 Mich

127; 42 NW 937 (1889), for the proposition that “keep or maintain” in MCL

333.7405(1)(d) requires more than an isolated incident. In Gastro, the defendant

was convicted of unlawfully keeping a house of ill fame. In holding that a single

act of prostitution will not always be sufficient to support a conviction under the

statute, the Gastro Court did not even cite the statutory language, let alone engage

in an analysis of the meaning of the word “keep.”5 Rather, the Court discussed the

meaning of the statutory phrase “resorted to” and the purpose of the statute. Id. at

133. Further, MCL 333.7405(1)(d) is an almost verbatim adoption of a provision

of the Uniform Controlled Substances Act (UCSA) effective at the time. It is

doubtful that the Legislature considered a nineteenth century case involving a

conviction for keeping a house of ill fame when it adopted the UCSA provision

that prohibits keeping or maintaining a drug vehicle.

The majority also relies heavily on other states’ interpretations of their own

similar statutes. By doing so, the majority is distracted from the text of our own

5
In fact, the Court referred to the crime as “unlawfully keeping and
maintaining a house of ill fame,” id. at 128 (emphasis added), although the statute
did not use the words “and maintaining.” 1887 PA 34.

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statute and led astray by other states’ interpretations of their own similar statutes.

The majority defends its reliance on cases from other states by pointing to two

provisions of the Public Health Code that require other provisions of the code to

be construed to achieve uniformity and consistency with other states. MCL

333.7121(2);6 MCL 333.1111(1).7 But these statutes do not require us to conform

to other states’ interpretations of statutes with different language when such

interpretations would be contrary to the plain language of our own statute. Nor do

they require us to adopt other states’ erroneous interpretations of their own

substantially similar statutes. If this were the case, we would simply do a “head

count” of decisions from other states and follow the majority of states regardless

of whether those decisions are correct. MCL 333.7121(1) or MCL 333.1111(1)

does not require such a result.

Further, “[o]nly where the statutory language is ambiguous may a court

properly go beyond the words of the statute to determine legislative intent.”

People v Borchard-Ruhland, 460 Mich 278, 284-285; 597 NW2d 1 (1999). If the

language of the statute is unambiguous, this Court applies the statute as written,

and judicial construction is neither necessary nor permitted. Id. at 284. MCL

6
MCL 333.7121(2) provides: “This article shall be applied and construed
to effectuate its general purpose to make uniform the law with respect to the
subject of this article among those states which enact laws similar to it.”
7
MCL 333.1111(1) provides: “This code is intended to be consistent with
applicable federal and state law and shall be construed, when necessary, to achieve
that consistency.”

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333.7121(1) and MCL 333.1111(1) govern judicial construction of statutes in the

Public Health Code, which is not permitted when the statute at issue is

unambiguous.8 The majority does not identify an ambiguity in MCL

333.7405(1)(d). Because the language of MCL 333.7405(1)(d) is unambiguous,

the above “uniformity” statutory provisions do not apply, and this Court must

apply the plain language of MCL 333.7405(1)(d) as written, without regard to how

other states have construed their similarly worded statutes.9

In addition to failing to apply the plain language of the statute, the majority

creates practical problems by giving defendants a “free pass” from conviction for

keeping or maintaining a drug vehicle. The obvious purpose of the statute is to

prevent the use of vehicles to transport or sell drugs. That purpose is not served

by exempting individual violations. Under the majority opinion, as long as the

suspect is careful not to carry any other drug paraphernalia or other indications of

8
I offer no opinion regarding whether MCL 333.7121(2) or MCL
333.1111(1) violates the separation of powers doctrine by effectively instructing
courts regarding how to exercise their judicial power to construe statutes.
9
The “uniformity” statutory provisions of MCL 333.7121(1) and MCL
333.1111(1) are similar to statutory provisions requiring that a statute be broadly
or liberally construed. For example, MCL 333.1111(2) provides that the Public
Health Code “shall be liberally construed for the protection of the health, safety,
and welfare of the people of this state.” This type of statutory provision does not
allow courts to interpret statutes in a manner inconsistent with the plain statutory
language, but acts only as a legislative guide to help resolve ambiguous statutory
language. See Paschke v Retool Industries, 445 Mich 502, 511; 519 NW2d 441
(1994) (“Where the statutory language is clear, the courts should neither add nor
detract from its provisions. Nevertheless, where ambiguity exists, and judicial
(continued…)

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continuity, the suspect need not fear that he will be convicted of keeping or

maintaining a drug vehicle if caught for the first time. The majority opinion will

encourage the police to allow the use of a vehicle to store or sell drugs until the

officers decide that they have enough evidence to sustain a conviction under MCL

333.7401(1)(d) for continuous activity. The language of the statute makes clear

that the Legislature did not intend such a result. Rather, the Legislature intended

to permit the police to arrest a suspect for violating MCL 333.7405(1)(d) without

fear that the arrest came too soon for them to accumulate evidence to support such

a conviction.

By holding that the prosecution must show “evidence of continuity,” the

majority largely reiterates the Court of Appeals holding in Griffin, supra at 32,

that the prosecution must show that the defendant’s actions occurred

“continuously for an appreciable period” but without the “appreciable period”

component. The Griffin standard similarly requires evidence of continuity, so how

is the majority’s standard meaningfully different?10 I question why this Court has

granted leave to appeal and overruled Griffin just to reach a legal conclusion

almost identical to the case it is overruling. The majority correctly recognizes that

(…continued)

interpretation is needed, the act should be liberally construed . . . . [emphasis

added].)

10
The dictionary definition of “continuity” is, in pertinent part, as follows:
“1. the state or quality of being continuous. 2. a continuous or connected whole.”
Webster’s Universal College Dictionary (1997), p 176.

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Griffin was wrongly decided and strikes the erroneous language of that decision,

but then falls into the trap of repeating the Griffin panel’s mistake.

Because evidence of an isolated incident of using a vehicle to keep or sell

drugs is sufficient to support a conviction for keeping or maintaining a drug

vehicle when the defendant retains the vehicle in his possession or power, and the

prosecution clearly presented evidence that defendant kept the vehicle and used it

for selling or keeping drugs, there was sufficient evidence to support defendant’s

conviction. I would vacate the judgment of the Court of Appeals and reinstate

defendant’s conviction for keeping or maintaining a drug vehicle under MCL

333.7405(1)(d).

Maura D. Corrigan
Robert P. Young, Jr.

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