People v. McIntire

Young, Jr., P.J.

(concurring in part and dissenting in part). I concur fully with the majority’s affirmance of defendant’s convictions of perjury committed in court, MCL 750.422; MSA 28.664, in Docket No. 194362. However, I must respectfully dissent from my colleagues’ conclusion in Docket No. 194301 that defendant may be tried for first-degree murder, MCL 750.316; MSA 28.548, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Because I do not believe that the statute regarding the granting of immunity to a witness compelled to testify before a one-man grand jury, MCL 767.6; MSA 28.946, conditions its grant of transactional immunity on “truthful” testimony, I *119would affirm the trial court’s order dismissing the charges of first-degree murder and felony-firearm.

I. APPLICATION OF TRADITIONAL PRINCIPLES OF STATUTORY CONSTRUCTION

Because our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. White v Ann Arbor, 406 Mich 554, 562; 281 NW2d 283 (1979). A fundamental principle of statutory construction is that “a clear and unambiguous statute leaves no room for judicial construction or interpretation.” Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993). When a legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need for judicial construction; the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995); Lake Angelus v Oakland Co Road Comm, 194 Mich App 220, 224; 486 NW2d 64 (1992). Finally, in construing a statute, we must give the words used by the Legislature their common, ordinary meaning. MCL 8.3a; MSA 2.212(1).

These traditional principles of statutory construction thus force courts to respect the constitutional role of the Legislature as a policy-making branch of government and constrain the judiciary from encroaching on this dedicated sphere of constitutional responsibility. Any other nontextual approach to statutory construction will necessarily invite judicial speculation regarding the probable, but unstated, *120intent of the Legislature with the likely consequence that a court will impermissibly substitute its own policy preferences. See Cady v Detroit, 289 Mich 499, 509; 286 NW 805 (1939) (“Courts cannot substitute their opinions for that of the legislative body on questions of policy.”). Unfortunately, the majority has abandoned these traditional rules of construction, ignored the plain text of the statute before us, and substituted its own policy preferences for those of our Legislature by finding an unexpressed legislative intent that a witness who lies in a one-man grand jury proceeding forfeits statutory immunity granted under MCL 767.6; MSA 28.946. While I do not question the sincerity of my colleagues’ effort, I view the majority opinion as a herculean, yet ultimately unsuccessful, attempt to create an ambiguity where none exists in order to reach a desired result, albeit one with which I might wholeheartedly agree were I a legislator authorized to enact policy.

The immunity statute, MCL 767.6; MSA 28.946, provides, in relevant part:

No witness shall upon such inquiry be required to answer any questions, or shall be convicted for contempt upon refusal to do so, when the answers might tend to incriminate him. A written order granting to such witness immunity from such incrimination may be entered by said judge pursuant to a written motion by the prosecuting attorney . . . , which order shall set forth verbatim the questions which such witness refused to answer. ... No person required to answer such questions shall thereafter be prosecuted for any offense concerning which such answers may have tended to incriminate him. [Emphasis added.]

The text of the statute is clear and unambiguous. It simply does not condition transactional immunity on *121truthful testimony.1 As I read the immunity statute, there is but one condition that the Legislature has imposed on a grant of transactional immunity: that the witness give answers that “may have tended to incriminate him.” Id. The above-emphasized language of the statute would seem to admit of no contrary intent. It is hard for me to conceive of language the Legislature could have otherwise employed that would more emphatically have proclaimed that, once an immunized witness has provided answers tending to incriminate, no prosecution for offenses touching upon crimes associated with such answers may be had. Indeed, the “tended to incriminate” standard appears to present a rather low threshold that need be met in order to invoke the immunity protections of the statute. See, e.g., People v Joseph, 384 Mich 24, 29; 179 NW2d 383 (1970) (holding that the privilege against self-incrimination extends not only to answers that would in themselves support a conviction, but also to answers that would furnish a link in the chain of evidence needed to prosecute the defendant).

*122The majority, having concluded or conceded that “at least some portion of defendant’s testimony ‘may have tended to incriminate’ him,” ante at 82, n 6, should have, under the plain language of the statute and application of traditional rules of statutory construction, affirmed the trial court’s dismissal of the murder and felony-firearm charges. Instead, the majority today enacts by judicial ukase a new statute requiring truthful testimony as a condition precedent to a grant of transactional immunity. The majority acknowledges that “there is no express requirement that the immunized individual ‘answer’ questions truthfully.” Ante at 86.

H. SINS OF AN UNHOLY TRINITY: THE SO-CALLED “ABSURD RESULT” RULE OF CONSTRUCTION2

*123Significantly, the majority never, with respect to the text of the statute, identifies the terms or phrases it finds to be ambiguous.* *3 Rather, in order to justify its action in looking beyond the text to determine legislative intent, the majority embarks on an “absurd result” analysis in which the majority focuses not on what the Legislature said through the text of the statute, but what the majority believes the Legislature *124must really have meant despite the language it used. The essence of the majority’s position is that it concludes that the Legislature could not have intended a perjury charge to be the sole consequence for testifying falsely before a one-man grand jury. Therefore, in order to avoid what it believes would be an “illogical” result, the majority expends a great deal of interpretative justification to “infer” a legislative intent that the immunity granted by MCL 767.6; MSA 28.946 not apply when a witness gives “materially false testimony.” Ante at 91.

The majority asserts that the “Legislature could not intelligently or rationally deal with immunity and compelled testimony without considering the consequences of a suspect’s failing to truthfully provide such compelled testimony.” Ante at 86. On the basis of that premise, the majority purports to scrutinize “the purpose, the text, and the context of the immunity statute” in search of “a more logical and reasonable result . . . .”4 Ante at 86. However, the logical force of the majority’s argument is entirely eviscer*125ated by the fact that the Legislature did deal with the prospect of false testimony given in a one-man grand jury proceeding. It did so by enacting a separate section of the criminal procedure code expressly prohibiting perjury in any grand jury proceeding. See MCL 767.19d; MSA 28.959(4).5

From the explicit terms of these statutes, two indisputable things are established: (1) that the Legislature did not overlook the “problem” posed by the majority, but was fully aware of the fact that some immunized individuals might give false testimony in grand jury proceedings, hence its enactment of the grand jury perjury statute, and (2) that the Legislature did not fail to indicate its intentions concerning how it wished to deal with false testimony in this context, but instead selected a specific remedy to deal with this problem. From these two facts I am forced to conclude that I need “infer” nothing about the intent that the Legislature made so plain in enacting these two statutes. The Legislature made an express choice to punish otherwise-immunized false swearers by authorizing their prosecution for perjury. This is the policy choice that I believe this Court is obligated to respect and enforce. By contrast, my colleagues in the majority have turned traditional statutory construction principles inside out in order to achieve a different desired result. The majority is able to invoke *126its “implied remedy” of withdrawing defendant’s immunity in this case only by ignoring both the language of the immunity statute itself and the separate statute prohibiting perjury in grand jury proceedings. The majority has the power to do so; it does not have the authority.

It is clear that the majority believes that a perjury prosecution should not be the only consequence when a witness who is given statutory immunity testifies falsely before a one-man grand jury. However, under the clear and unambiguous language of the immunity statute, especially when considered in light of the separate prohibition against perjury in all grand jury proceedings, our Legislature has concluded otherwise and expressly said so. Whether the Legislature’s choice to limit the range of penalties for lying in grand jury proceedings to prosecutions for perjury serves as a sufficient deterrent to perjury in this context is simply not this Court’s concern. “ ‘[I]t is not required that we should be sure as to the precise reasons for [a particular statutory] judgment or that we should certainly know them or be convinced of the wisdom of the legislation.’ ” Cady, supra at 509 (citation omitted); see also Melia v Employment Security Comm, 346 Mich 544, 561; 78 NW2d 273 (1956). To paraphrase the apt observation Justice Riley made in another context, in our democracy, a legislature is free to make inefficacious or even unwise policy choices. The correction of these policy choices is not a judicial function as long as the legislative choices do not offend the constitution. Instead, the correction must be left to the people and the tools of democracy: the “ballot box, initiative, referendum, or consti*127tutional amendment.” Dedes v Asch, 446 Mich 99, 123-124; 521 NW2d 488 (1994) (Riley, J., dissenting).

m. CONCLUSION

It cannot be gainsaid that if the Legislature intended that immunity be forfeited completely upon the giving of false testimony, it could easily have said so.6 However, the Legislature did not, and I believe that the majority mistakenly reads that condition into the statute to further policy concerns that the majority, but apparently not the Legislature, prefers. Because I am unable to reconcile the majority’s analysis with traditional rules of statutory construction and what I believe is a proper reading of MCL 767.6; MSA 28.946, I respectfully dissent from its conclusion that defendant may be tried for murder and felony-firearm. I would, therefore, affirm the trial court’s order in Docket No. 194301.

The majority acknowledges that it was permissible for the prosecutor, as a condition for granting immunity, to add additional terms beyond that imposed by the statute. Ante at 84. Unfortunately, the prosecutor failed in this case to require truthful testimony as one such condition of the grant of immunity given.

It is this omission on the part of the prosecution that my colleagues seek to repair by rewriting the immunity statute. Indeed, despite the fact that the majority purports to be interpreting the immunity statute, the essential thrust of its analysis suggests that the majority believes that it is actually constructing a contractual undertaking. Therefore, the majority writes: “On the basis of these three factors, we conclude that the immunity agreement is void . . . .” Ante at 91 (emphasis added); see also ante at 92, n 10. We would do better by respecting the limitations of the statute and admonishing the prosecutors of this state to impose truthtelling as a condition of any agreement to grant immunity under the statute.

Reference is made here to the infamous case, Church of the Holy Trinity v United States, 143 US 457; 12 S Ct 511; 36 L Ed 226 (1892), that is sometimes recognized as a foundational stone of the “absurd result” rule of statutory construction. See Salas v Clements, 399 Mich 103, 109; 247 NW2d 889 (1976).

In Holy Trinity, the United States Supreme Court was required to determine whether the Holy Trinity Church, which contracted with a resident of England to be its pastor, had therefore violated a federal statute making it unlawful (and punishable by a fine) for any person to “ ‘in any way assist or encourage the importation or migration of any alien . . . into the United States ... to perform labor or service of any kind in the United States ....”’ Id. at 458. Although the Court conceded that the act of the church was “within the letter of [the statute],” and thus proscribed, the Court nonetheless concluded: “we cannot think Congress intended to denounce with penalties a transaction like that in the present case.” Id. at 458459. The Court explained: “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Id. at 459.

In Michigan, this same so-called rule of statutory construction has been stated as follows: “[Departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” Salas, n 2, supra at 109 (emphasis added).

I agree with Justice Scalia’s description of such attempts to divine unexpressed and nontextual legislative intent as “nothing but an invitation to *123judicial lawmaking.” Scalia, A Matter of Interpretation: Federal Courts and the Law (New Jersey: Princeton University Press, 1997), p 21. This nontextual approach to statutory construction has unfortunately led my colleagues away from the task of determining the Legislature’s expressed intent.

My colleagues vehemently deny my charge that they have abandoned traditional rules of construction, but assert that, by using the same tools, they have simply reached a different set of conclusions. Ante at 87, n 7. The majority argues that when the meaning of a statute has been “questioned,” construction must be determined by examining the purpose of the statute and the “statutory context” with which the language is used. Ante at 85. My critique of the majority’s approach to statutory construction is a challenge of the majority’s initial premise: when the language of a statute is internally consistent and not ambiguous, from whence arises the right of the Court to "question” its meaning?

I agree that, when one part of a statute points to one conclusion, while another part points elsewhere, the “contextual” approach of the majority is applicable in order to reconcile the two apparently divergent parts. See Michigan Bell Telephone Co v Dep’t of Treasury, 229 Mich App 200, 212-217; 581 NW2d 770 (1998). However, the majority has never identified why the text of the immunity statute is internally inconsistent or ambiguous, thereby giving rise to the need for interpretation. In sum, I find entirely unpersuasive my colleagues’ effort to “redefine” the commonplace and unambiguous statutory term “answer.”

Second, I specifically repudiate the majority’s notion that the “context” of the immunity statute suggests a basis for ignoring the plain language of the statute. As I argue later, the majority’s resort to nontextual policy bases for discerning the Legislature’s intent to forfeit immunity when false testimony is given in a one-man grand jury proceeding is belied by the fact that the Legislature enacted a separate section of the criminal procedure code specifically to punish such behavior as perjury. Thus, to the extent that this Court is authorized to look beyond the text of the immunity statute — a premise that I dispute — the perjury statute supplies a nearly irrefutable clue that the Legislature intended perjury, not immunity forfeiture, as the penalty for giving false testimony.

I cannot agree with my colleagues that, because the Legislature chose a remedy that the majority finds in this case to be inadequate, the Legislature failed to recognize that the goal of the immunity statute is to obtain “helpful," hence “truthful,” testimony. For the purposes of my analysis, I need not disagree with the majority that the goal of the immunity statute at issue here is to compel truthful testimony. The difference in our approach and respective conclusions is not a disagreement on the goal of the statute, but on whether the Legislature has foreclosed this Court’s right to establish a penalty other than that which the Legislature has chosen.

Thus, while the majority makes compelling arguments that support a rational, but different, policy choice regarding an appropriate penalty for perjury committed by a witness given immunity under the statute, the object of judicial statutory construction is not to determine whether there are valid alternative policy choices that the Legislature may or should have chosen, but to determine from the text of the statute the policy choice the Legislature actually made.

MCL 767.19d; MSA 28.959(4) provides:

A person who wilfully swears falsely under oath in regard to any matter or thing upon which he is being examined is subject to the penalties of perjury as prescribed by law.

I also note that perjury committed in any court proceeding has been prohibited by separate statute since as early as 1846. See MCL 750.422; MSA 28.664.

Considering the fact that, in many cases (such as this one), the punishment for the underlying crime that is the subject of the grand jury testimony will be far greater than that for perjury, I find it particularly troubling to infer without some legislative guidance a provision that would, as a consequence of lying under oath, completely remove a witness’ immunity from prosecution.

Having in effect created such a provision from wholecloth, the majority fails to suggest how to determine in a given case whether a witness’ false testimony is sufficiently false to warrant a finding that immunity has been forfeited. These are, however, mere “practical problems” that our Court is wont to pass off as issues to be addressed on another day. I merely note for the record that it is the majority’s insistence upon creating a new policy not found in the statute that has caused the breach in the damworks.