Opinion
No. 162208
06-10-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Antonya MOSS, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Steven P. Pierangeli, Prosecuting Attorney, for the people. State Appellate Defender (by Jacqueline J. McCann) for defendant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Steven P. Pierangeli, Prosecuting Attorney, for the people.
State Appellate Defender (by Jacqueline J. McCann) for defendant.
BEFORE THE ENTIRE BENCH
Per Curiam.
At issue in this case is whether adopted siblings who do not share a common ancestor are related "by blood" for purposes of the crime of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(d). We hold that such persons are not related "by blood" under the statute. As a result, there was not an adequate factual basis for defendant's no-contest plea. We reverse, in part, the judgment of the Court of Appeals and remand to the circuit court.
We leave undisturbed the Court of Appeals’ conclusion that defendant and the complainant are not related by affinity. See People v. Moss , 333 Mich.App. 515, 524-526, 963 N.W.2d 390 (2020).
I. FACTS AND PROCEDURAL HISTORY
Defendant, John Moss, was charged as a fourth-offense habitual offender with two counts of CSC-III, one for being related to the complainant by blood or affinity to the third degree, contrary to MCL 750.520d(1)(d), and one for using force or coercion, contrary to MCL 750.520d(1)(b). At the time of the offense, defendant was 25 years old, and the complainant for the CSC-III charges, his adoptive sister, was 17 years old. Defendant and the complainant do not have a birth parent in common, but they were both adopted by the same woman. The complainant alleged that in November 2015 she and defendant engaged in sexual acts; the complainant reported that these act were not consensual, while defendant claimed that they were.
He was also charged with resisting and obstructing a police officer and possession of marijuana, second offense.
In exchange for dismissing all other charges against him and the fourth-offense habitual-offender enhancement, defendant pleaded no contest to the CSC-III count under MCL 750.520d(1)(d). The parties agreed with the trial court's suggestion to use the police report to establish a factual basis for the plea. Relying on that report, the court found that defendant and the complainant engaged in sexual intercourse and "that they are related to the third degree by adoption as brother and sister." After being sentenced, defendant moved to withdraw his plea, arguing that he was not related to the complainant by either blood or affinity merely because they were both adopted by the same person. The trial court denied the motion. It found that defendant and the complainant were not related "by blood." With regard to relationship by "affinity," the trial court relied on People v. Armstrong , 212 Mich.App. 121, 128, 536 N.W.2d 789 (1995), for the proposition that the term "affinity" described a relationship by either marriage or " ‘ties other than those of blood.’ " (Citation omitted.) Because defendant and the complainant were adopted by the same woman, the trial court held that they were related by affinity as adoptive brother and sister and that the factual basis for the plea was sufficient. Defendant applied for leave to appeal, and the Court of Appeals denied leave for lack of merit in the grounds presented. People v Moss , unpublished order of the Court of Appeals, entered August 21, 2017 (Docket No. 338877).
Defendant sought leave to appeal that decision in this Court, and after hearing oral argument on the application, in lieu of granting leave, we remanded to the Court of Appeals for it to address:
whether a family relation that arises from a legal adoption, see MCL 710.60(2) ("After entry of the order of
adoption, there is no distinction between the rights and duties of natural progeny and adopted persons") (1) is effectively a "blood" relation, as that term is used in MCL 750.520b — MCL 750.520e ; or (2) is a relation by "affinity," as that term is used in MCL 750.520b — MCL 750.520e, see Bliss v. Caille Bros. Co. , 149 Mich. 601, 608, 113 N.W. 317 (1907) ; People v. Armstrong , 212 Mich.App. 121, 536 N.W.2d 789 (1995) ; People v. Denmark , 74 Mich.App. 402, 254 N.W.2d 61 (1977). [ People v. Moss , 503 Mich. 1009, 925 N.W.2d 206 (2019).]
On remand, the Court of Appeals affirmed the trial court's denial of defendant's motion, reasoning that defendant and the complainant were related by blood. People v. Moss , 333 Mich.App. 515, 519-524, 963 N.W.2d 390 (2020). In doing so, the Court of Appeals relied on MCL 710.60. Id. at 520, 963 N.W.2d 390. After determining that defendant and the complainant were related by blood, the Court of Appeals explained that it did not need to decide whether they were related by affinity but did so anyway because of the remand order, concluding that they were not related by affinity. Id. at 524-526, 963 N.W.2d 390.
Defendant again sought leave to appeal in this Court. We ordered oral argument on the application to consider "whether the Court of Appeals erred in concluding on remand that the defendant and the complainant are effectively related by blood for purposes of MCL 750.520d(1)(d), such that there was an adequate factual basis for the defendant's no-contest plea." People v. Moss , 507 Mich. 939, 957 N.W.2d 822 (2021).
II. STANDARD OF REVIEW AND INTERPRETIVE PRINCIPLES
"We review for an abuse of discretion a trial court's ruling on a motion to withdraw a plea." People v. Brown , 492 Mich. 684, 688, 822 N.W.2d 208 (2012). "A trial court necessarily abuses its discretion when it makes an error of law." People v. Rajput , 505 Mich. 7, 11, 949 N.W.2d 32 (2020) (citation and quotation marks omitted). We review de novo questions of law, such as the interpretation and application of statutes. People v. Kennedy , 502 Mich. 206, 213, 917 N.W.2d 355 (2018). "Our goal in interpreting a statute is to give effect to the intent of the Legislature as expressed in the statute's language." People v. Garrison , 495 Mich. 362, 367, 852 N.W.2d 45 (2014). "Absent ambiguity, we assume that the Legislature intended for the words in the statute to be given their plain meaning, and we enforce the statute as written." Id.
III. ANALYSIS
A court may not accept a guilty plea unless it is convinced that the plea is accurate. MCR 6.302(A). To ensure the accuracy of a plea, a trial court must establish a factual basis for the plea. People v. Pointer-Bey , 321 Mich.App. 609, 616, 909 N.W.2d 523 (2017), citing MCR 6.302(D). The factual basis is insufficient if it does "not establish grounds for finding that defendant committed the crime charged...." People v. Mitchell , 431 Mich. 744, 748, 432 N.W.2d 715 (1988). In the present case, defendant pleaded no contest to CSC-III, contrary to MCL 750.520d(1)(d). The statute, which is part of the Michigan Penal Code, MCL 750.1 et seq. , provides, in relevant part:
(1) A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist:
* * *
(d) That other person is related to the actor by blood or affinity to the third
degree and the sexual penetration occurs under circumstances not otherwise prohibited by this chapter. [ MCL 750.520d.]
The statute does not define the word "blood" or the phrase "related to the actor by blood." We have previously interpreted these terms in the statute criminalizing criminal sexual conduct in the first degree, MCL 750.520b. See People v. Zajaczkowski , 493 Mich. 6, 13, 825 N.W.2d 554 (2012). We noted, "A relationship by ‘blood’ is defined as ‘a relationship between persons arising by descent from a common ancestor’ or a relationship ‘by birth rather than by marriage.’ " Id. , quoting Black's Law Dictionary (8th ed.), p. 182, and Random House Webster's College Dictionary (2001), p. 145. The definitions cited in Zajaczkowski are applicable to this case. A relationship formed by adoption does not arise by descent from a common ancestor or by birth. Therefore, under the ordinary meaning of the statutory language, individuals related by adoption are not related by blood.
Although some of the other elements differ between MCL 750.520b and MCL 750.520d, the relationship elements are sufficiently similar such that Zajaczkowski is relevant to determining the proper definition of the phrase in this case.
Although different in their wording, the definitions have no practical difference because they both focus on a biological relationship. Therefore, it is unnecessary to determine whether "by blood" is a term of art, and it is proper to consult both lay and legal dictionaries. See Sanford v. Michigan , 506 Mich. 10, 21 n 23, 954 N.W.2d 82 (2020).
Instead of first looking at the plain meaning of MCL 750.520d(1)(d), the Court of Appeals in this case looked at MCL 710.60, which states, in relevant part:
We did highlight this statute in our remand order.
(1) After the entry of an order of adoption, if the adoptee's name is changed, the adoptee shall be known and called by the new name. The person or persons adopting the adoptee then become the parent or parents of the adoptee under the law as though the adopted person had been born to the adopting parents and are liable for all the duties and entitled to all the rights of parents.
(2) After entry of the order of adoption, there is no distinction between the rights and duties of natural progeny and adopted persons, and the adopted person becomes
an heir at law of the adopting parent or parents and an heir at law of the lineal and collateral kindred of the adopting parent or parents.
From the statute, the Court of Appeals concluded that "[t]he former biological ties of defendant and complainant were each severed by adoption, and a completely new relationship was substituted." Moss , 333 Mich.App. at 521, 963 N.W.2d 390. For this reason, it determined "that a constructive biological relationship exists between" defendant and the complainant and that the two are "effectively related by blood" for purposes of MCL 750.520d(1)(d). Id.
The Court of Appeals’ analysis is flawed in a number of respects. First, numerous sections in the Adoption Code distinguished and continue to distinguish between relationships by blood and relationships by adoption. The Legislature has also continued this distinction in defining "related" and "relative" since MCL 710.60 was enacted. "As a general rule, we must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory." People v. Arnold , 508 Mich. 1, 23, 973 N.W.2d 36 (2021) (citations, quotation marks, and brackets omitted). The Legislature would have no need to use both by "blood" and "adoption" in defining "relative" or "related" if MCL 710.60 has the effect that the Court of Appeals concluded it does.
See, e.g., MCL 710.22(t) (defining "relative" as someone related "within the fifth degree by marriage, blood, or adoption"); MCL 710.26(2) ("This subsection also applies to ... the adoption of a child related to the petitioner within the fifth degree by marriage, blood, or adoption."); MCL 710.27(6) (stating that the subsection does not apply to the adoption of a child related "within the fifth degree by marriage, blood, or adoption").
See, e.g., MCL 205.27a(12) ("[A] person is related to an individual if that person is a spouse, brother or sister, whether of the whole or half blood or by adoption, ancestor, lineal descendant of that individual or related person...."); MCL 333.21311a(8)(b) (defining "related" as "any of the following personal relationships by marriage, blood, or adoption: spouse, child, parent, brother, sister, grandparent, grandchild, aunt, uncle, stepparent, stepbrother, stepsister, or cousin"); MCL 400.112g(6)(c) (defining "caretaker relative" as "any relation by blood, marriage, or adoption who is within the fifth degree of kinship to the recipient"); MCL 554.524(3) (defining "member of the minor's family" as "the minor's parent, stepparent, spouse, grandparent, brother, sister, uncle, or aunt, whether of the whole or half blood or by adoption").
Second, the Adoption Code can only change the law, not the genetic makeup of an adopted child or his adoptive parents. The Court of Appeals in this case relied on In re Toth , 227 Mich.App. 548, 553, 577 N.W.2d 111 (1998), for the following proposition:
"[T]he effect of [ MCL 710.60(1) ] is to make the adopted child, as much as possible, a natural child of the adopting parents, and to make the adopting parents, as much as possible, the natural parents of the child. The Michigan adoption scheme expresses a policy of severing, at law, the prior, natural family relationship and creating a new and complete substitute relationship after adoption." [ Moss , 333 Mich.App. at 520, 963 N.W.2d 390 (second alteration in original), quoting In re Toth , 227 Mich.App. at 553, 577 N.W.2d 111.]
The Court of Appeals focused on the second sentence, concluding that adoption substitutes a completely new relationship for the old biological relationship. Moss , 333 Mich.App. at 521, 963 N.W.2d 390. In doing so, the Court ignored the first sentence, which recognizes that the effect of MCL 710.60(1) is not to actually make the adopted child a biological child of the adopted parents. Rather, the statute focuses on the rights and duties and not the biological makeup. An adoptee has the same rights and duties as the natural progeny of the adoptive parents. But nothing in MCL 710.60 states that an adopted individual will be subject to criminal prosecutions as if the individual were a blood relative of the individual's adoptive parents.
We certainly do not mean to discount the importance of adoptive relationships. Indeed, we are well aware of the numerous benefits of adoption—not only for the children and parents in adoptive relationships but also for their extended families and for society as a whole. See, e.g., Sharon S. v. San Diego Co. Superior Court , 31 Cal. 4th 417, 438, 2 Cal.Rptr.3d 699, 73 P.3d 554 (2003) (recognizing that there are "nonlegal benefits of adoption for children, parents, and society as a whole"); In re Johnson , 480 B.R. 305, 312 (Bankr ND Ill, 2012) (discussing studies showing the social benefits of adoption).
It bears noting that MCL 710.60(3) refers specifically to orders for grandparenting time, which are governed by MCL 722.27b. MCL 722.27b(5) distinguishes between grandparents who are "the natural or adoptive parent" of the parent of the child in question, which indicates a difference between biological and adoptive relationships. Although MCL 722.27b(13) states that adoption of a child generally terminates the right of a grandparent to commence an action for grandparenting time, it goes on to state that, under certain circumstances, a grandparent may still commence such an action even after an adoption. That MCL 710.60 specifically refers to MCL 722.27b demonstrates that MCL 710.60 also recognizes that there is a difference between biological and adoptive relationships.
The analysis in Zajaczkowski confirms this point. There, the defendant and the victim were not biologically related, but the prosecution argued that they were related because the defendant had been born while his mother was married to the victim's biological father. Zajaczkowski , 493 Mich. at 9, 825 N.W.2d 554. The Court of Appeals had acknowledged the plain meaning of "by blood or affinity," but it went on to apply the civil presumption of legitimacy—i.e., that the child was a product of the marriage—to conclude that the defendant and victim were related "by blood" for purposes of MCL 750.520b. Id. at 14, 825 N.W.2d 554. We reversed, rejecting the use of the presumption to create a blood relationship by legal fiction. DNA evidence showed that the victim's father was not the defendant's biological father; the two did "not share a relationship arising by descent from a common ancestor, and they [were] not related by birth." Id. As a result, we concluded that the defendant was "not related to the victim by blood to the fourth degree." Id. Anticipating the present dilemma, we noted in a footnote:
Specifically, the Court of Appeals had relied on MCL 552.29 (stating with respect to divorce cases that "the legitimacy of all children begotten before the commencement of any action under this act shall be presumed until the contrary be shown") and cases from this Court involving the Paternity Act and Child Custody Act, which stood "for the proposition that a putative biological father lacks standing to even bring an action to establish paternity unless there has been some prior court determination that the child was not the issue of the marriage." Zajaczkowski , 493 Mich. at 11, 825 N.W.2d 554 (citation, quotation marks, and brackets omitted), citing Barnes v. Jeudevine , 475 Mich. 696, 718 N.W.2d 311 (2006), In re KH , 469 Mich. 621, 677 N.W.2d 800 (2004), and Girard v. Wagenmaker , 437 Mich. 231, 470 N.W.2d 372 (1991). Relying on MCL 700.2114(1)(a) and MCL 700.2114(5), which "incorporate the presumption of legitimacy and the standing requirement into intestate-succession disputes," the Court of Appeals concluded that the defendant lacked standing to challenge the presumption of legitimacy, which meant that he and the victim were related by blood as a matter of law. Zajaczkowski , 493 Mich. at 11-12, 825 N.W.2d 554.
The prosecution has raised the argument that this interpretation [of MCL 750.520b(1)(b)(ii ) ] will result in unintended consequences regarding adopted children because if the blood relationship element can only be established through a biological relationship, then a sexual penetration committed by a member of an adoptive family against an adopted minor child may not be punishable under MCL 750.520b(1)(b)(ii ). While we acknowledge that the prosecution raises valid policy concerns, such policy concerns are best left to the Legislature to address. It is this Court's duty to enforce the clear statutory language that the Legislature has chosen. [ Zajaczkowski , 493 Mich. at 14 n 18, 825 N.W.2d 554.]
We rejected the reliance on the civil presumption of legitimacy and criticized the Court of Appeals for going "beyond the statute's language and chang[ing] the ordinary meaning of the statute's terms by adding language that the Legislature did not include." Id. at 14-15, 825 N.W.2d 554.
Finally, we believe the interpretation of MCL 750.520d adopted by the Court of Appeals would create an impermissible constructive crime. A constructive crime is one that is " ‘built up by courts with the aid of inference, implication, and strained interpretation....’ " People v. Olson , 293 Mich. 514, 515, 292 N.W. 860 (1940), quoting Ex parte McNulty , 77 Cal. 164, 167, 19 P. 237 (1888). Michigan does not recognize constructive crimes, and we have previously characterized them as " ‘repugnant to the spirit and letter of English and American criminal law.’ " Olson , 293 Mich. at 515, 292 N.W. 860, quoting Ex parte McNulty , 77 Cal. at 168, 19 P. 237. In the present case, the Court of Appeals did not find that defendant and the complainant were actually related "by blood." Rather, it determined that defendant "effectively " became the biological child of his adoptive mother and that a "constructive biological relationship" existed between defendant and the complainant. Moss , 333 Mich.App. at 522, 963 N.W.2d 390 (emphasis added). By doing so, the Court of Appeals enlarged the CSC-III statute and strained its interpretation, impermissibly creating a constructive crime as applied to this defendant and others similarly situated. Applying this analysis to the present case leads to the conclusion that defendant and the complainant are not related by blood. There is no DNA evidence establishing that defendant and the complainant are related to the third degree. Defendant and the complainant do not share a common ancestor. And they are not related by birth. Just as it was improper to rely on the civil presumption of legitimacy to interpret MCL 750.520b, it was improper for the Court of Appeals to rely on MCL 710.60 in this case. By doing so, "the Court of Appeals went beyond the statute's language and changed the ordinary meaning of the statute's terms by adding language that the Legislature did not include." Zajaczkowski , 493 Mich. at 14-15, 825 N.W.2d 554. As we did in Zajaczkowski , we again acknowledge that there are valid policy concerns that this statute fails to provide adequate protection for adoptive siblings; however, we can only reiterate that those concerns are for the Legislature to address.
See also Black's Law Dictionary (11th ed.), pp. 466-467 (defining the term as "[a] crime that is built up or created when a court enlarges a statute by altering or straining the statute's language, esp. to drawing unreasonable implications and inferences from it").
Other courts have rejected similar attempts to criminalize sexual conduct between persons related by adoption when the statute does not expressly prohibit such conduct between those related by adoption. See 41 Am Jur 2d, Incest, § 17, p. 356, citing In re Adoption of Adult Anonymous , 106 Misc.2d 792, 435 N.Y.S.2d 527 (Fam Ct, 1981), and State v. Bale , 512 N.W.2d 164 (S.D. 1994).
IV. CONCLUSION
For these reasons, we hold that persons who are related by adoption but who otherwise do not share an ancestor in common are not related "by blood" for purposes of MCL 750.520d(1)(d). As a result, there was not an adequate factual basis for defendant's plea of no contest. We reverse, in part, the judgment of the Court of Appeals and remand to the circuit court for further proceedings not inconsistent with this opinion.
We decline to reach the issue addressed by the dissent—i.e., whether defendant and the complainant are related by affinity—because our order directing oral argument on the application only asked the parties to address whether defendant and the complainant are related by blood. Moss , 507 Mich. at 939, 957 N.W.2d 822.
McCormack, C.J., and Zahra, Viviano, Bernstein, Clement, and Cavanagh, JJ., concurred.
Welch, J. (concurring in part and dissenting in part). I concur in the Court's holding that adoptive siblings are not related "by blood" for purposes of MCL 750.520d(1)(d). I write separately because I conclude that the Legislature considered adoptive siblings to be related by "affinity."
The prosecutor did not file a separate application for leave to appeal the Court of Appeals’ holding on the meaning of "affinity." However, this Court has stated that when "a controlling legal issue is squarely before this Court, ... the parties’ failure or refusal to offer correct solutions to the issue [does not] limit[ ] this Court's ability to probe for and provide the correct solution." Mack v. Detroit , 467 Mich. 186, 206-207, 649 N.W.2d 47 (2002). In this case, the issue "squarely before this Court" is whether the relationship between adoptive siblings is sufficient to satisfy MCL 750.520d(1)(d).
MCL 750.520d(1) provides, in relevant part, that a person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and "[t]hat other person is related to the actor by blood or affinity to the third degree and the sexual penetration occurs under circumstances not otherwise prohibited" by Chapter LXXVI of the Michigan Penal Code. Because of its conclusion that adoptive siblings are related "by blood," the Court of Appeals concluded that "it is not necessary that we decide whether a relationship by affinity also exists." People v. Moss , 333 Mich.App. 515, 524, 963 N.W.2d 390 (2020). The Court of Appeals addressed the issue anyway because this Court had remanded for consideration of the definitions of affinity provided by Bliss v. Caille Bros. Co. , 149 Mich. 601, 608, 113 N.W. 317 (1907) ("Affinity is the relation existing in consequence of marriage between each of the married persons and the blood relatives of the other....") and People v. Armstrong , 212 Mich.App. 121, 128, 536 N.W.2d 789 (1995) ("Random House College Dictionary (rev ed.) defines the term ‘affinity’ as a ‘relationship by marriage or by ties other than those of blood.’ "). The Court of Appeals determined that, while Armstrong suggested that "affinity" might have a wider, context-dependent meaning than was recognized in Bliss , Armstrong "nonetheless concluded that stepsiblings were related by affinity ‘because they were family members related by marriage. ’ " Moss , 333 Mich.App. at 526, 963 N.W.2d 390, quoting Armstrong , 212 Mich.App. at 128, 536 N.W.2d 789.
Chapter LXXVI, MCL 750.520a through MCL 750.520o , is the chapter of the Michigan Penal Code that addresses criminal sexual conduct.
The Court of Appeals initially denied defendant's delayed application for leave to appeal his plea-based conviction. People v Moss , unpublished order of the Court of Appeals, entered August 21, 2017 (Docket No. 338877). We heard oral argument on the application for leave to appeal, and in lieu of granting leave to appeal, we remanded the case to the Court of Appeals for consideration as on leave granted. People v. Moss , 503 Mich. 1009, 925 N.W.2d 206 (2019).
In determining that adoptive relationships are relationships "by blood," the Court of Appeals quoted Armstrong at length:
[W]e think it is highly unlikely that the Legislature intended to treat adoptive siblings differently from biological siblings for purposes of the [criminal sexual conduct] statutes. We reached a similar conclusion in Armstrong ..., in which we were tasked with deciding whether stepsiblings were related by affinity under the [criminal sexual conduct] statutes. We reasoned in part:
In looking to the object of the second-degree criminal sexual conduct statute
and the harm it is designed
to remedy, and in applying a reasonable construction that best accomplishes the purpose of that statute in this case, we are persuaded that the term "affinity" encompasses the relation between a stepbrother and a stepsister. If the term were not so construed, then the first- and second-degree criminal sexual conduct statutes would impose a penalty more severe where the perpetrator sexually assaulted a spouse's brother or sister than where the perpetrator sexually assaulted a stepbrother or stepsister. In this time of divorce, remarriage, and extended families, we see no reason why the Legislature would give enhanced protection to a victim related to a perpetrator as an in-law but not to a victim related to a perpetrator as a stepbrother or stepsister. Thus, defining the term "affinity" to encompass the relation between a stepbrother and a stepsister avoids a construction of the second-degree criminal sexual conduct statute that would yield absurd results.
[ Moss , 333 Mich.App. at 523, 963 N.W.2d 390, quoting Armstrong , 212 Mich.App. at 128-129, 536 N.W.2d 789.]
I would hold that Armstrong ’s reasoning dictates that adoptive relationships are covered by MCL 750.520d(1)(d), but I would do so under the "affinity" prong that Armstrong actually addressed and not the "blood" prong to which the Court of Appeals applied Armstrong ’s reasoning. Armstrong noted that "the term ‘affinity’ is not capable of a precise definition. Rather, at common law, whether someone was related to another by affinity depended upon the legal context presented." Armstrong , 212 Mich.App. at 125, 536 N.W.2d 789 (citation omitted). I see no reason to prefer, in the context of a criminal statute, the narrow definition of affinity stated in Bliss —a case interpreting a judicial disqualification statute—to the dictionary definition stated in Armstrong . Expanding upon the reasoning of Armstrong , it would be a patently absurd result to hold that the Legislature intended what is essentially an incest statute to cover relationships between stepsiblings and not adoptive siblings. I therefore conclude that the Legislature did not pass such a statute. Instead, it passed a statute that included a broader term—affinity—to allow for inclusion of both step and adopted relationships.
In Johnson v. Recca , 492 Mich. 169, 193-194, 821 N.W.2d 520 (2012), this Court criticized a dissenting Justice for applying the absurd-results doctrine too liberally:
To properly invoke the "absurd results" doctrine, the burden rests on the dissent to show that it is quite impossible that the Legislature could have intended to exclude replacement services from MCL 500.3110(4), MCL 500.3116(4), MCL 500.3135(3)(c), and MCL 500.3145(1). Rather than shoulder this burden—which might require a serious-minded analysis of the Legislature's policy objectives in enacting the statutes, the political realities and disagreements within the Legislature that adopted the statutes, the necessity for compromise and negotiation leading to enactment of the statutes, and the public impetus behind the statutes—the dissent characterizes our interpretation as "absurd" because the dissent
can see no logical basis to conclude that the Legislature intended this chaotic and arbitrary approach to the collection of no-fault benefits.... The far more reasonable interpretation recognizes that the Legislature intended MCL 500.3135(3)(c) to allow excess expenses for ordinary and necessary services to be recovered in a third-party tort action.
The absurd-results principle has also been criticized by textualists as having "strong intentionalist foundations" inconsistent with "respect for the legislative process," which is characterized by "accommodation, messiness, and compromise." Manning, The Absurdity Doctrine , 116 Harv L Rev 2387, 2390-2391 (2003) ; see also Barnhart v. Sigmon Coal Co., Inc. , 534 U.S. 438, 461, 122 S Ct 941, 151 L Ed 2d 908 (2002) ("The deals brokered during a Committee markup, on the floor of the two Houses, during a joint House and Senate Conference, or in negotiations with the President, however, are not for us to judge or second-guess.").
In other words, the absurd-results doctrine should not be applied merely to question the reasonableness of the Legislature's policy determinations when a plausible, rational basis for the result exists. I agree. But in the present case, it is implausible to suggest that there were any interest groups pressuring the Legislature for a right to engage in sexual conduct with adoptive family members. In 1996, the Legislature amended MCL 750.520d, adding Subdivision (d), to criminalize sexual penetration with another person when "[t]hat other person is related to the actor by blood or affinity to the third degree...." See 1996 PA 155. However, the Legislature had already criminalized, in 1974, sexual penetration and sexual contact with another person when that other person was at least 13 years but less than 16 years of age and the actor was related to the victim by blood or affinity. See MCL 750.520b(1)(b) and MCL 750.520c(1)(b), as enacted by 1974 PA 266. Thus, such conduct was criminalized in 1974—the same year the Legislature adopted a new "effect of adoption" statute , MCL 710.60, that recognized adoption as a total and exclusive replacement of the child's natural family relationships. The reasonable inference from the "messiness" of the Legislative process is that the statute's drafters omitted the word "adoption" in the statutes concerning criminal sexual conduct with the understanding that adoptive relationships would fall within the imprecise term "affinity," the meaning of which "depend[s] upon the legal context presented." Armstrong , 212 Mich.App. at 125, 536 N.W.2d 789.
Commentators at the time the criminal sexual conduct act, 1974 PA 266, was passed stated that "[u]nder increasing pressure from women's rights groups and other reform organizations, the Michigan legislature has re-evaluated its centenarian rape statute, found it inadequate for the realities of the mid-twentieth century, and enacted a new sexual assault act." Legislative Note, Michigan's Criminal Sexual Assault Law , 8 U Mich J L Reform 217 (1974) (citations omitted). That same year, the Legislature replaced the former effect-of-adoption statute—which provided that adoption did not affect a child's right to inherit from "his natural parents"—with current MCL 710.60(2), which provides that "[a]fter entry of the order of adoption, the adopted person shall no longer be an heir at law of his or her natural parents[.]" In re Adolphson Estate , 403 Mich. 590, 592-593, 271 N.W.2d 511 (1978) (emphasis omitted), quoting 1974 PA 296. The criminal sexual conduct act and the new effect-of-adoption provision became effective on the same day, January 1, 1975. 1974 PA 266; 1974 PA 296.
This is not a conclusion from my own policy preferences. Rather, it is a conclusion from defendant's failure to offer even plausible speculation as to a rational basis for enacting a criminal sexual conduct statute that extends to step relationships but not to adoptive relationships.
Compare Chapman v. United States , 500 U.S. 453, 454, 111 S.Ct. 1919, 114 L.Ed. 2d 524 (1991), in which the Supreme Court declined to apply the absurd-results doctrine to a statute that imposed a mandatory minimum sentence for distributing more than one gram of a "mixture or substance" containing LSD. The petitioner emphasized that a dose of LSD weighs almost nothing, leading to the absurd and allegedly unconstitutional result that whether a defendant was subject to a minimum sentence could depend on the arbitrary fact of the weight of the paper on which the illegal substance was placed. Id. at 463-464, 111 S Ct 1919. The Supreme Court held that the sentencing scheme was nonetheless rational because, "[b]y measuring the quantity of the drugs according to the ‘street weight’ of the drugs in the diluted form in which they are sold, rather than according to the net weight of the active component, the statute and the Sentencing Guidelines increase the penalty for persons who possess large quantities of drugs, regardless of their purity." Id. at 465, 111 S Ct 1919.
In Green v. Bock Laundry Machine Co , 490 U.S. 504, 505, 509, 109 S.Ct. 1981, 104 L.Ed. 2d 557 (1989), the Supreme Court addressed a prior version of FRE 609(a)(1), which, when interpreted literally, required prejudice-balancing before a prior conviction could be admitted to impeach a civil defendant, but the rule did not extend the same protection to a civil plaintiff. The majority, in a lengthy analysis of the history of the rule, determined that language extending the benefit of prejudice-weighing to the "defendant" was intended to mean "criminal defendant," leaving neither side of a civil dispute protected by prejudice-weighing. Id. at 513-527, 109 S Ct 1981. Justice Scalia, finding "no reason to believe that any more than a handful of the Members of Congress who enacted Rule 609 were aware of its interesting evolution from the 1942 Model Code," id. at 528, 109 S Ct 1981 (Scalia, J., concurring), emphasized the petitioner's failure to offer any plausible basis for the "absurd, and perhaps unconstitutional, result," id. at 504, 109 S Ct 1981, of a literal interpretation:
(1) The word "defendant" in Rule 609(a)(1) cannot rationally (or perhaps even constitutionally) mean to provide the benefit of prejudice-weighing to civil defendants and not civil plaintiffs. Since petitioner has not produced, and we have not ourselves discovered, even a snippet of support for this absurd result, we may confidently assume that the word was not used (as it normally would be) to refer to all defendants and only all defendants. [ Id. at 528-529, 109 S Ct 1981 ].
Interpreting the word "defendant" as "criminal defendant" easily avoided the absurdity while doing the "least violence to the text." Id. at 529, 109 S Ct 1981. Likewise, in the context of a criminal statute that prohibits sexual conduct between family members, the term "affinity" bears the meaning of familial relationships created by adoption just as easily as it bears the meaning of familial relationships created by marriage. Neither defendant nor this Court has offered even a snippet of a rational basis for a contrary interpretation. Therefore, we can confidently assume that the word "affinity" was not used as it normally would be to refer to relationships created by marriage and only relationships by marriage.