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### STATE OF MICHIGAN

COURT OF APPEALS

CHEBOYGAN SPORTSMAN CLUB,

Plaintiff-Appellee, FOR PUBLICATION October 2, 2014

v No. 313902 Cheboygan Circuit Court CHEBOYGAN COUNTY PROSECUTING ATTORNEY, LC No. 12-008331-CZ

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and F ITZGERALD and W HITBECK , JJ.

W HITBECK , J ( concurring in part and dissenting in part ).

I agree that the trial court erred by appl ying the Sport Shooting Ranges Act. The majority has ably stated the background facts and pr ocedural history in this case, and I agree that the Sport Shooting Ranges Act does not confer imm unity in this case because this case does not concern an issue of noise c ontrol or noise pollution.

However, I write separately because I w ould not address Cheboygan Sportsman Club’s alternative ground for affirmance and because I st rongly 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 RA NGES ACT AND IMMUNITY

A. THE SPORT SHOOTING RANGES ACT

The Legislature originally enacted the S port Shooting Ranges Act in 1989, in response to the conflicts that the development of rural areas created between shooting ranges and new neighbors. 1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 certa in 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

.-2- specifically provides civil and criminal immunity from prosecution or nuisance actions involving noise control or noise pollu tion laws or ordinances:

Notwithstanding any other provision of law, and in addition to other protections provided in this act, a pe rson who owns or operates or uses a Sport Shooting Ranges that conforms to generally accep ted 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 us e 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 ti me of construction or ini tial operation of the range. [3]

B. THE WILDLIFE CONSERVATION ACT

The Wildlife Conservation Act provides th e 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 disc harge a firearm within 150 yards of an occupied building . . . without obtaining the written permissi on 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 conc luding 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 Shooti ng Ranges Act over the Wildlife Conservation Act because both statutes i nvolve the discharge of firearms, and thus both were applicable in this case. However, th e 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 sa fety or a hunting regulation under the Wildlife Conservation Act. Neither party’s argument concer ns noise or noise pollution. Thus, this suit is plainly not a matter “relating to noise or noi se 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 immun ity 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).-3- II. APPLICATION OF THE WI LDLIFE 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 huntin g, 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 yard s of an occupied building. I note that, while the Cheboygan Sportsman Club made this argument be low, 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 pu rely 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 be lief, to the point of reducing the words to a cliché, that the primary and overriding rule of stat utory 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 formul a to be more than a little at odds with reality. The basic premise of the form ula 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 le gislator action may cast his or he r vote for a very, very wide variety of reasons. For example:

• The legislator and his or her staff may anal yze 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 fo r reasons of party loya lty; the legislator’s caucus may have taken a position on the bill an d the legislator may vote in concert with that caucus position without a grea t deal of further analysis;

• Or the legislator may perceive that an im portant constituency favors or opposes the bill and may vote accordingly;

6 See, for example, US Fidelity Ins & Guaranty Co v Mi ch Catastrophic Claims Ass’n (On Rehearing) , 484 Mich 1, 12; 795 NW2d 101 (2009).-4- • Or the language of the bill may be the product of amendment and compromise and the legislator, while having considerable doubts ab out the wording in one portion of the bill, may nevertheless strongly favor the provision s of another portion and may vote for the bill despite having reservations a bout 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 ra nking 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 legisl ation in which he or she may be more interested.

My point is a simple one: the le gislative process is almost infi nitely 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 ficti on, we have developed over the years certain conventions designed to lead us to legislative intent. Statutes pr ovide 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 phras es 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 stat utory interpretation, some of which have their basis in logic. For instance, when the Legislatur e includes language in one pa rt 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 th e past and continues or has been recently completed, 9 and that a modifying clause m odifies 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).-5- As I stated above, this Court and the Mi chigan 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 legislat ive 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 search ing 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 “l egislative intent.”

But whatever label we use—a nd I acknowledge that the concep t of legislativ e intent is firmly embedded in our jurisprudence—the proble m 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 enga ge 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 m ean 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 th e case—that this matter involves a declaratory judgment holding that the “prohibition against disc harging 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 w ithin 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 th e 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).-6- This interpretation runs afoul of a numb er of the conventions—those basic and timehonored 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 prov ides 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 i gnore 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 fo r 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 statut e dubious. Thus, there is no reason to avoid giving effect to the word “or.” Were we to gi ve 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 major ity’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 majo rity’s opinion runs afoul of another of our cherished conventions: that courts must avoid interpretations that render part s 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).-7- 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 di scharging a firearm. The majority’s interpretation thus rende rs “discharging a firearm” surplusage.

And, by limiting the application of the Wildlif e 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 Cour t may not read provisions into a statute that the Legislature chose to omit. 21 The statute does not provide an y exception for target shooting on one’s own property. The majority instead creates one. But had th e 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 excepti on into an unambiguous statue.

In creating this exception, th e majority’s reliance on legisl ative history and legislative analyses is most troubling. The Michigan Supr eme Court has expressed disapproval of reliance on legislative analyses in the past, particularly when it creates a conf lict with an unambiguous statute’s plain language. 22 In no uncertain terms, the Cour t 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 langua ge of the statute itself to ig nore the placement and use of the word “or” between the ph rases “hunt” and “discharge a firearm.” This Court should particularly not rely on legislative analys es 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.-8- obliged to consider not only the “surrounding stat utory framework” but al so 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, th en 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 legi slative history are bound to be false.” 25

Second, the majority categorizes my analysis in this dissen t 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 practi cal reality. Only the most innocent observer would conclude that the chaos th at occurs in the Rotunda of th e Capitol on the last day of a legislative session—with bills flying from one ch amber to the other, wi th every available arm being twisted and every possible po litical chit being called in, w ith compromises being made and then unmade within a matter of minutes—is capable of produc ing a rational and understandable collective legislative inte nt as to each individual piece of legi slation. This is not an academic observation; it reflects real ity as I have seen it.

Third, the majority states, “Were we to di sregard 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 chao s nor do I propose to disregard established legal principles. Rather, my critique of the major ity’s approach is that disregards time-honored principles of statutory construc tion 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 mean s “and” when considered organically, I obviously disagree.

IV. CONCLUSION

I agree with the majority that the trial cour t 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 r ecognizes that collectiv e entities can be, though simple and well-understood princi ples of group dynamics, effec tively discrete entities unto themselves and subject to anal ysis in their own right.”-9- But I would not graft an interpretation ont o the Wildlife Conservation Act (1) that suggests that a person may not di scharge 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 “dischargi ng a firearm” language of the statute surplusage, (3) that read s 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 targ et practice contexts, so the act of conducting target practice shooting on plaintiff’s [Cheboy gan Sportsman Club’s] does not violate MCL 324.4011.” Actually, the majority’s opinion is simply that the W ildlife Conservation Act applies only to hunting and therefore target practice shooting is not pr ohibited. The clear wording of the statute is otherwise. I therefor e respectfully dissent fr om the majority’s me thod of interpretation of the Wildlife Conservation Act.

/s/ William C. Whitbeck