                           STATE OF MICHIGAN

                            COURT OF APPEALS



CHEBOYGAN SPORTSMAN CLUB,                                           FOR PUBLICATION
                                                                    October 2, 2014
                Plaintiff-Appellee,

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

                Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and FITZGERALD and WHITBECK, JJ.

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

       I agree that the trial court erred by applying the Sport Shooting Ranges Act. The
majority has ably stated the background facts and procedural history in this case, and I agree that
the Sport Shooting Ranges Act does not confer immunity in this case because this case does not
concern an issue of noise control or noise pollution.

    However, I write separately because I would not address Cheboygan Sportsman Club’s
alternative ground for affirmance and because I strongly 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 RANGES ACT AND IMMUNITY

                          A. THE SPORT SHOOTING RANGES ACT

       The Legislature originally enacted the Sport Shooting Ranges Act in 1989, in response to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 certain 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.


                                                -1-
specifically provides civil and criminal immunity from prosecution or nuisance actions involving
noise control or noise pollution laws or ordinances:

         Notwithstanding any other provision of law, and in addition to other protections
         provided in this act, a person who owns or operates or uses a Sport Shooting
         Ranges that conforms to generally accepted 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 use 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 time of construction or initial operation of the range.[3]

                           B. THE WILDLIFE CONSERVATION ACT

       The Wildlife Conservation Act provides the 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 discharge a firearm within 150 yards of an occupied
building . . . without obtaining the written permission 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 concluding 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 Shooting Ranges Act over the
Wildlife Conservation Act because both statutes involve the discharge of firearms, and thus both
were applicable in this case. However, the 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 safety or a hunting regulation under the Wildlife
Conservation Act. Neither party’s argument concerns noise or noise pollution. Thus, this suit is
plainly not a matter “relating to noise or noise 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 immunity 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).


                                                 -2-
                II. APPLICATION OF THE WILDLIFE 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 hunting, 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 yards of an occupied building. I note that, while
the Cheboygan Sportsman Club made this argument below, 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 purely 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 belief, to the point of reducing the words to a
cliché, that the primary and overriding rule of statutory 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 formula to be more than a little at
odds with reality. The basic premise of the formula 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 legislator action may cast his or her vote for a very, very wide
variety of reasons. For example:

    •   The legislator and his or her staff may analyze 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 for reasons of party loyalty; the legislator’s
        caucus may have taken a position on the bill and the legislator may vote in concert with
        that caucus position without a great deal of further analysis;

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


6
 See, for example, US Fidelity Ins & Guaranty Co v Mich Catastrophic Claims Ass’n (On
Rehearing), 484 Mich 1, 12; 795 NW2d 101 (2009).


                                                  -3-
      •   Or the language of the bill may be the product of amendment and compromise and the
          legislator, while having considerable doubts about the wording in one portion of the bill,
          may nevertheless strongly favor the provisions of another portion and may vote for the
          bill despite having reservations about 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 ranking 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 legislation in which he or she may be more
          interested.

    My point is a simple one: the legislative process is almost infinitely 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 fiction, we have developed over the years certain
conventions designed to lead us to legislative intent. Statutes provide 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 phrases 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 statutory interpretation, some of which have their
basis in logic. For instance, when the Legislature includes language in one part 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 the past and continues or
has been recently completed,9 and that a modifying clause modifies 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).


                                                  -4-
        As I stated above, this Court and the Michigan 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 legislative 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 searching 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 “legislative intent.”

        But whatever label we use—and I acknowledge that the concept of legislative intent is
firmly embedded in our jurisprudence—the problem 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 engage 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 mean 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 the case—that this matter involves a declaratory
judgment holding that the “prohibition against discharging 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 within 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 the 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).


                                                -5-
       This interpretation runs afoul of a number of the conventions—those basic and time-
honored 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 provides 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 ignore 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 for 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 statute dubious. Thus, there is no reason to avoid
giving effect to the word “or.” Were we to give 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 majority’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 majority’s opinion runs afoul of another of our
cherished conventions: that courts must avoid interpretations that render parts 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).


                                                  -6-
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 discharging a firearm.
The majority’s interpretation thus renders “discharging a firearm” surplusage.

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

        In creating this exception, the majority’s reliance on legislative history and legislative
analyses is most troubling. The Michigan Supreme Court has expressed disapproval of reliance
on legislative analyses in the past, particularly when it creates a conflict with an unambiguous
statute’s plain language.22 In no uncertain terms, the Court 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 language of the statute itself to ignore the placement and use of
the word “or” between the phrases “hunt” and “discharge a firearm.” This Court should
particularly not rely on legislative analyses 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.


                                                  -7-
obliged to consider not only the “surrounding statutory framework” but also 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, then 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 legislative history are bound to be false.”25

        Second, the majority categorizes my analysis in this dissent 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 practical reality. Only the most innocent observer
would conclude that the chaos that occurs in the Rotunda of the Capitol on the last day of a
legislative session—with bills flying from one chamber to the other, with every available arm
being twisted and every possible political chit being called in, with compromises being made and
then unmade within a matter of minutes—is capable of producing a rational and understandable
collective legislative intent as to each individual piece of legislation. This is not an academic
observation; it reflects reality as I have seen it.

             Third, the majority states, “Were we to disregard 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 chaos nor do I propose to disregard established legal
principles. Rather, my critique of the majority’s approach is that disregards time-honored
principles of statutory construction 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 means “and” when considered organically, I obviously
disagree.

                                       IV. CONCLUSION

       I agree with the majority that the trial court 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 recognizes that collective entities can be, though
simple and well-understood principles of group dynamics, effectively discrete entities unto
themselves and subject to analysis in their own right.”


                                                -8-
        But I would not graft an interpretation onto the Wildlife Conservation Act (1) that
suggests that a person may not discharge 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 “discharging a firearm” language of the
statute surplusage, (3) that reads 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 target practice contexts, so the act of conducting
target practice shooting on plaintiff’s [Cheboygan Sportsman Club’s] does not violate MCL
324.4011.” Actually, the majority’s opinion is simply that the Wildlife Conservation Act applies
only to hunting and therefore target practice shooting is not prohibited. The clear wording of the
statute is otherwise. I therefore respectfully dissent from the majority’s method of interpretation
of the Wildlife Conservation Act.

                                                              /s/ William C. Whitbeck




                                                -9-
