                             STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    February 19, 2015
               Plaintiff-Appellee,

v                                                                   No. 316806
                                                                    Berrien Circuit Court
EVANS COSTNER, III,                                                 LC No. 2009-004980-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and DONOFRIO and GLEICHER, JJ.

GLEICHER, J. (dissenting).

        The question presented is whether defendant was “more than four years older” than the
complainant when the two engaged in consensual sexual relations. The answer depends on how
“years” are measured. In my view, the Legislature solved this dilemma by enacting MCL 8.3j,
which defines a year as a calendar year. While the majority maintains that application of this
definition creates an “absurd result,” I deem it reasonable and required. Doing so here compels
us to define the disputed phrase in terms of calendar years.

       Were we privileged to simply ignore MCL 8.3j, I would hold that the term “not more
than four years older” is hopelessly ambiguous. And because the statute containing the phrase is
remedial, I believe it should be interpreted in favor of defendant, one of the statute’s intended
beneficiaries. Accordingly, I respectfully dissent.

       In relevant part the statute at issue provides for removal from the sex offender registry as
follows:

               The court shall grant a petition properly filed by an individual under
       subsection (3) if the court determines that the conviction for the listed offense was
       the result of a consensual sexual act between the petitioner and the victim and any
       of the following apply:

               (a)    All of the following:

              (i)      The victim was 13 years of age or older but less than 16 years at
       the time of the offense.



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            (ii)   The petitioner is not more than 4 years older than the victim.
       [MCL 28.728c(14) (emphasis added).]

        Defendant and the complainant had consensual sex when the complainant was 14 years
old and defendant was 18 years old. Defendant is 4 years and 23 days older than the
complainant. I respectfully disagree with the majority’s determination that 23 days makes all the
difference.

        The majority holds that “the commonly understood definition of a ‘year’ as a measure of
time” dictates that a year “is commonly understood as being 12 months in duration.” Thus, the
majority reasons, “one who is even one day” more than four years older is ineligible for relief.
According to the majority’s calculus, defendant therefore falls outside the statute’s embrace.
The majority pronounces the “calendar year” approach an “extremely awkward (and entirely
inaccurate) way to calculate whether someone was more than four years older than someone
else.” But we are not judicial lawmakers. Our role in interpreting the language is to apply
statutes as written. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).

        “Year” is a nontechnical term. Ordinarily, we would interpret it “according to the
common and approved usage of the language.” MCL 8.3a. From that perspective, the majority’s
construction is certainly reasonable, since everyone knows that 4 years and 23 days constitutes a
time period longer than four years. But our Legislature has seen fit to provide a specific
definition for the word “year.” Michigan law dictates that if used in a statute, the word “year”
means “a calendar year.” MCL 8.3j. When the Legislature supplies a definitional rule, common
parlance must give way. And “ ‘[a] statutory definition supersedes the commonly-accepted,
dictionary, or judicial definition.’ ” Erlandson v Genesee Co Employees’ Retirement Comm, 337
Mich 195, 204; 59 NW2d 389 (1953), quoting 50 Am Jur, 262, p 254.

        I respectfully disagree with the majority’s view that we may interpret the term “more than
four years older” on a clean slate of “plain meaning,” for the “[g]eneral rules of [statutory]
construction” promulgated by our Legislature dictate the interpretation of the word “year.” The
Legislature is “ ‘presumed to know of and legislate in harmony with existing laws.’ ” People v
Cash, 419 Mich 230, 241; 351 NW2d 822 (1984), quoting People v Harrison, 194 Mich 363,
369; 160 NW 623 (1916). The “existing law,” MCL 8.3, commands that “[i]n the construction
of the statutes of this state, the rules stated in [MCL 8.3a to 8.3w] shall be observed, unless such
construction would be inconsistent with the manifest intent of the legislature.” I discern no such
inconsistency. Thus, MCL 8.3j’s statutory definition of the word “year” controls. A “calendar
year” is a period of 12 months of time. Defendant was born in 1991, and was 18 years old at the
time of the offense. The complainant was born in 1995, and was 14 years old at the time of the
offense. Between them were four calendar years, and not more than that. Accordingly, I believe
that the trial court erred when it denied defendant’s petition for removal from the sex offender
registry.

       The majority reasons that MCL 8.3j comes into play only “when referencing a particular
date/year, not a unit or measure of time.” (Emphasis in original.) I do not find that language in
either MCL 8.3j or MCL 28.728c(14)(a)(ii), and cannot so readily relegate § 8.3j to the refuse
bin. In my view, the legislative definition of “year” trumps the majority’s definition. I would


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hold that because defendant was not more than four calendar years older than the complainant
when they had sex, defendant was improperly placed on the sex offender registry.1

         Even assuming that we may properly overlook MCL 8.3j, I would reject the majority’s
holding. In everyday parlance, the term “more than four years older” is susceptible to two valid
interpretations. One embraces years and days, while the other refers to whole years. Under the
latter, defendant is “not more than four years” older than the complainant, and therefore entitled
to relief.

         The majority holds that “the commonly understood definition of a ‘year’” represents a
“measure of time” that is “12 months in duration.” “Therefore,” the majority opines, “one who
is even one day past the 4-year or 48-month eligibility limit described in MCL 28.728c(14)(a)(ii)
is ineligible to obtain relief under the statue.” But in ordinary discourse, people refer to age as a
specific number of years rather than as a number of years and months. Colloquially, I would say
that my husband is not more than one year older than I, even though technically he is 1 year, 5
months and 12 days my senior. Adults usually refer to the difference in their ages in terms of
years, not years and months and days.

         Speaking generally, five years is more than four years. Speaking specifically, four years
and one day is more than four years. Should we interpret the term “year” loosely, as we do in
real life—a year means a calendar year? Or should we construe it strictly—a year consists of
months and days? Setting MCL 8.3j aside, the statutory text does not tell us.2

        “A statutory provision is ambiguous if it is equally susceptible to more than a single
meaning.” Klida v Braman, 278 Mich App 60, 65; 748 NW2d 244 (2008). The majority’s
definition of the term “more than four years” as encompassing registrants even 1 day and 4 years
older than the complainant is plausible. So is the notion that the Legislature meant that “more
than four years” requires subtracting the complainant’s age from the defendant’s, and arriving at
a whole number. Viewed through the lens of common meaning, the statutory language is
decidedly ambiguous.

       Resolving the ambiguity requires judicial construction guided by “our duty . . . to
consider the object of the statute, as well as the harm it is designed to remedy, and [to] apply a
reasonable construction that best accomplishes the statute’s purpose.” Id. at 70-71.

       MCL 28.728c was enacted to allow “Romeo and Juliet” offenders to petition for reprieve
from the rigors of the SORA registry. This Court described that an earlier version of this
remedial enactment was motivated “by concerns that ‘the reporting requirements are needlessly



1
  Because our Legislature has defined the term “year,” the cases cited by the majority from other
jurisdictions are inapposite. The legislatures of those jurisdictions have not enacted a
definitional statute.
2
 It seems to me, however, that if the Legislature intended that every month count, it could easily
have drafted the statute in terms of months, not years. See MCL 400.57r and MCL 18.1451a(1).


                                                -3-
capturing individuals who do not pose a danger to the public, and who do not pose a danger of
reoffending.’ ” People v Dipiazza, 286 Mich App 137, 148; 778 NW2d 264 (2009), quoting
House Legislative Analysis, HB 4920, 5195, and 5240, November 12, 2003, at 1. This Court
further observed that “[t]he implied purpose of SORA, public safety, is not served by requiring
an otherwise law-abiding adult to forever be branded as a sex offender because of a juvenile
transgression involving consensual sex during a Romeo and Juliet relationship.” Id. at 149.

       As remedial legislation designed to shield certain youthful offenders from the harsh,
punitive effects of mandatory sex offender registration, MCL 28.728c should be liberally
construed in favor of its intended beneficiaries. See Haynes v Neshewat, 477 Mich 29, 42; 729
NW2d 488 (2007) (KELLY, J., concurring); Spartan Asphalt Paving Co v Grand Ledge Mobile
Home Park, 400 Mich 184, 189; 253 NW2d 646 (1977). “A liberal construction is ordinarily
one which makes the statutory rule or principle apply to more things or in more situations than
would be the case under a strict construction.” 3 Singer & Singer, Sutherland Statutory
Construction § 60.1, p 258 (7th ed, 2008).

        Honoring and implementing the remedial purpose of the statute, I would hold that the
term “more than four years older” should be construed to mean that defendant was not more than
four years older than the complaint when they engaged in consensual sex, and would reverse the
trial court.



                                                          /s/ Elizabeth L. Gleicher




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