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In People v Brashier, 197 Mich App 672; 496 NW2d 385 (1992), aff'd in part, rev'd in part sub nom People v Lino, 447 Mich 567 (1994), a special panel of this Court was convened to address the conflict.
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Docket No. 150311.
Decided December 29, 1992, at 9:30 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Richard Thompson, Prosecuting Attorney, Michael J. Modelski, Chief, Appellate Division, and Robert C. Williams, Assistant Prosecuting Attorney, for the people.
Theodore H. Friedman, for the defendant on appeal.
Before: DOCTOROFF, C.J., and MURPHY, HOLBROOK, JR., WAHLS, HOOD, SAWYER, WEAVER, McDONALD, BRENNAN, CAVANAGH, NEFF, REILLY, and CONNOR, JJ.
This appeal is considered pursuant to the special panel conflict resolution provisions of Administrative Order No. 1990-6, 436 Mich. lxxxiv (1990), which were continued in effect by Administrative Order No. 1991-11, 439 Mich. cxliv (1991). On May 20, 1992, we granted the petition of the Oakland County Prosecutor to convene a special panel of this Court, identifying the question in conflict to be resolved as:
Whether the definition of gross indecency of MCL 750.338; MSA 28.570 is the "common sense of society" definition from People v Dexter, 6 Mich. App. 247; 148 N.W.2d 915 (1967), or the definition in People v Lino, 190 Mich. App. 715; 476 N.W.2d 654 (1991), adopted from People v Howell, 396 Mich. 16; 238 N.W.2d 148 (1976).
See, also, People v Emmerich, 175 Mich. App. 283; 437 N.W.2d 30 (1989), and People v Lynch, 179 Mich. App. 63; 445 N.W.2d 803 (1989). [ 194 Mich. App. 413.]
We resolve the conflict in favor of the Dexter definition, because we find that Howell did not overrule binding Supreme Court precedent defining gross indecency.
The definition of gross indecency in terms of the "common sense of society" has a long pedigree. In People v Carey, 217 Mich. 601; 187 N.W. 261 (1922), an information charged violation of 1915 CL 15511, which prohibited gross indecency between males with language very similar to that at issue here, MCL 750.338; MSA 28.570. Citing People v Hicks, 98 Mich. 86, 90; 56 N.W. 1102 (1893), the Supreme Court held that an information charging gross indecency was sufficient even though it did not describe the particular acts the defendant allegedly committed. The Supreme Court held that the information was sufficient without such description, because "the indelicacy of the subject" explains the lack of a definition of "gross indecency" in the statute, and because a court "will never allow its records to be polluted by bawdy and obscene matters," quoting from Hicks and People v Girardin, 1 Mich. 90 (1848). In coming to this conclusion, the Court in Carey, supra at 602-603, quoted the following language from the opinion in Hicks, supra at 90, which in turn quoted it from a Vermont decision, State v Millard, 18 Vt. 577 (1846):
The common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it.
At issue in People v Szymanski, 321 Mich. 248; 32 N.W.2d 451 (1948), was a statute that made criminal "indecent and improper liberties" by an adult male against a female child. Citing earlier cases construing the same statute, the Supreme Court held that the "statute penalizes conduct that is of such character that the common sense of society regards it as indecent and improper." Id. at 252.
In People v Dexter, 6 Mich. App. 247, 252-253; 148 N.W.2d 915 (1967), this Court rejected a claim that the present gross indecency statute is unconstitutionally vague. Relying on Hicks, Carey, and Szymanski, the Court held that statutes regarding indecent liberties or gross indecency penalize "conduct that is of such character that the common sense of society regards it as indecent and improper," quoting from Szymanski.
The present controversy may be said to have begun with People v Howell, 396 Mich. 16; 238 N.W.2d 148 (1976). In Howell, two defendants argued that the gross indecency statute is unconstitutionally vague. Six justices participated in deciding the case. All six agreed with part I of the opinion, which held that the term "act of gross indecency," standing alone, fails to give adequate notice of the conduct proscribed. However, part I also held that neither defendant could claim that he did not know that acts of forced fellatio or fellatio with a minor were subject to prosecution under the statute, given prior decisions applying the statute to such conduct. The Court therefore affirmed one defendant's conviction and remanded the other defendant for trial.
In part II of the Howell opinion, the construction of the gross indecency statute that defined gross indecency in terms of the "common sense of society" was rejected because it was found to vest unstructured discretion in the trier of fact to determine whether a crime had been committed. Part II of the Howell opinion states that there is no "common sense of society" regarding sexual behavior between consenting adults in private, or indeed regarding many other practices that could be prosecuted as gross indecency. The Dexter interpretation of the statute was rejected, and "act of gross indecency" was construed "to prohibit oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public." 396 Mich. 24.
Part II of the Howell opinion was supported by only three of the six justices participating. For this reason, panels of this Court continued to follow the Dexter-Carey-Hicks definition of gross indecency. However, in People v Emmerich, 175 Mich. App. 283, 286; 437 N.W.2d 30 (1989), and People v Lynch, 179 Mich. App. 63, 66; 445 N.W.2d 803 (1989), panels of this Court followed the definition given in part II of the Howell opinion. Finally, in Lino, a panel of this Court reviewed the split of authority and decided to follow Howell. Lino, supra at 719-720.
Defendant, in separate informations, was charged with four counts of gross indecency between males in violation of MCL 750.338; MSA 28.570. Testimony at the preliminary examination showed that defendant would approach juvenile males and ask them if they wanted to earn some money by beating up the codefendant. The juveniles would then accompany defendant to a hotel room where both they and defendant were paid to verbally and physically abuse the codefendant while he masturbated.
Defendant's motion to quash the charges was denied, and he appealed by leave granted. This Court reversed. Unpublished opinion per curiam, decided February 27, 1992 (Docket No. 134343). Judges HOLBROOK, JR., and GRIFFIN held that preliminary examination testimony did not establish the offense of gross indecency under the restrictive definition adopted in Lino, which is binding precedent pursuant to Administrative Order No. 1990-6. They therefore reversed and remanded with instructions to the circuit court to quash the counts of gross indecency, but did so only because required to pursuant to Administrative Order No. 1990-6. Judge MARILYN KELLY, concurring in part and dissenting in part, agreed that Lino required reversal, but stated that Lino should be followed not only because it is binding, but also because it was correctly decided.
By an order dated May 20, 1992, we granted the prosecutor's petition to convene a special panel to resolve the implicit conflict.
Although a three to two decision of the Supreme Court is binding on the Court of Appeals and the trial courts until overruled by a later decision of the Supreme Court, plurality decisions in which no majority of the justices participating agree concerning the reasoning are not authoritative interpretations under the doctrine of stare decisis. Negri v Slotkin, 397 Mich. 105, 109-110; 244 N.W.2d 98 (1976); People v Anderson, 389 Mich. 155, 170-171; 205 N.W.2d 461 (1973).
Part II of the Howell decision, which supplies the definition of gross indecency adopted in Lino, was supported by only three of the six justices participating. It is therefore a plurality opinion that does not bind this Court.
If Carey defined gross indecency to mean conduct that the common sense of society regards as indecent and improper, then this Court is not free to ignore such binding precedent and choose instead to follow the plurality opinion in Howell. It has been argued that Carey is not binding precedent. At issue in Carey was the question whether an information charging gross indecency was defective because it did not describe the acts complained of. The Supreme Court held that it was not defective, but did so by referring in part to the "indelicacy of the subject" and the rule that a court should not allow its records to be polluted by bawdy and obscene matters. Because the gross indecency statute was not being challenged for vagueness in Carey, it is arguable that references to the "common sense of society" are dicta. Similarly, in Szymanski vagueness was not an issue. Moreover, the statute in Szymanski was a different one referring to "indecent and improper liberties" with a minor female. If those Supreme Court cases do not supply an authoritative definition of "gross indecency," then the Lino panel was free to reject the Dexter panel's interpretation and adopt instead the definition given in part II of Howell.
We note, however, that even dictum of the Michigan Supreme Court is entitled to considerable deference. The Supreme Court has explained that a decision is authoritative on any point decided if the Court's opinion demonstrates application of the judicial mind to the precise question adjudged, regardless of whether it was necessary to decide the question in order to decide the case. Detroit v Michigan Public Utilities Comm, 288 Mich. 267, 299-300; 286 N.W. 368 (1939). Although the Court in Carey was not concerned with a vagueness challenge, the opinion shows an application of the judicial mind to the question whether a defendant was adequately informed of the charge against him when the information did not describe the acts of gross indecency that allegedly occurred. The Court cited with approval the statement from Hicks that the "common sense of the community, as well as the sense of decency, propriety, and morality which most people entertain, is sufficient to apply the statute to each particular case, and point out what particular conduct is rendered criminal by it." 217 Mich. 602-603. We therefore conclude that Carey established an authoritative interpretation of the meaning of "gross indecency" and that the panel in Lino was not free to adopt the definition given in part II of Howell.
Affirmed.
We concur in resolving the conflict in favor of the Dexter definition, because we would also find that Howell did not overrule binding Supreme Court precedent defining gross indecency. However, having leapt into the brier patch, we believe we should take this opportunity to express our belief that Carey was wrongly decided or is no longer viable. People v Mitchell, 428 Mich. 364, 370; 408 N.W.2d 798 (1987).
It has become increasingly clear that the "common sense of society" test is too vague and imprecise to provide fair notice of the conduct proscribed. We should align this Court with the Howell plurality and note our agreement that there is no longer any "common sense of society" regarding sexual behavior between consenting adults in private and that defining gross indecency in terms of the "common sense of society" vests unstructured discretion in the trier of fact to determine whether a crime has been committed.
The Howell definition, which construed the statute to prohibit "oral and manual sexual acts committed without consent or with a person under the age of consent or any ultimate sexual act committed in public," is clear, concise, and sufficiently inclusive to include defendant Brashier's grossly indecent conduct.
The principal, Goike, performed manual sex acts, masturbation, while defendant encouraged and assisted several persons under the age of consent to abuse Goike until he experienced orgasm. Defendant paid the juveniles; he threatened them; he scripted their actions; he participated in the abuse. He aided and abetted the commission of gross indecency as defined by Howell. See MCL 767.39; MSA 28.979; CJI2d 8.1.