People v. Higuera

• Decision Date: 05 April 2001
• Docket Number: Docket No. 213557.
• Citation: 244 Mich. App. 429,625 N.W.2d 444
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jose Gilberto HIGUERA, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

625 N.W.2d 444

244 Mich. App. 429

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jose Gilberto HIGUERA, Defendant-Appellee.

Docket No. 213557.

Court of Appeals of Michigan.

Submitted June 9, 1999, at Detroit.

Decided January 30, 2001, at 9:00 a.m.

Released for Publication April 5, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Mark E. Blumer, Assistant Attorney General, for the people.

Smith Haughey Rice & Roegge (by Richard C. Kraus), and Butzel Long (by Max R. Hoffman, Jr.), for the defendant, East Lansing, Okemos.

Before MICHAEL J. KELLY, P.J., and JANSEN and WHITE, JJ.

WHITE, J.

The people appeal by leave granted the circuit court's order affirming the district court's dismissal of the district court's charge against defendant of violating the criminal abortion statute, M.C.L. § 750.14; MSA 28.204. The district and circuit courts concluded that the statute is unconstitutionally vague. We reverse and remand for reinstatement of the charge against defendant.

I

The statute, which on its face purports to criminalize all abortions performed at any time during pregnancy, except when necessary to preserve the life of the mother,¹ appears to be in direct contravention of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).² We cannot, however, evaluate the constitutionality of this statute on its face. Rather, we are obliged to read the statute in light of the decision of the Michigan Supreme Court in People v. Bricker, 389 Mich. 524, 208 N.W.2d 172 (1973). Nor are we presented with a broad challenge, in an action for declaratory relief, to the constitutionality of the statute. The question presented is, rather, whether a particular criminal prosecution under the statute would be constitutionally infirm. Under these circumstances, we are constrained to conclude that the circuit court erred in affirming the district court's dismissal of the charge.

II

Defendant, a medical doctor specializing in obstetrics and gynecology, was charged with violating the criminal abortion statute, M.C.L. § 750.14; MSA 28.204, for allegedly inducing the abortion of a fetus of approximately twenty-eight weeks, and altering a patient's medical records in violation of M.C.L. § 750.492a(1)(a); MSA 28.760(1)(1)(a). Defendant filed a motion to dismiss the charge that alleged violation of M.C.L. § 750.14; MSA 28.204, arguing that the statute is unconstitutionally vague, is unconstitutional on its face, and has been repealed by implication, and that the complaint is defective for failing to allege viability of the fetus or lack of necessity to preserve the health of the mother.

The district court determined that the complaint was not defective and that the statute was not unconstitutional on its face, but dismissed the charge on the ground that the statute had been repealed by implication and was void for vagueness. On the people's appeal, the circuit court concluded that the district court erred in finding that the statute had been repealed by implication, but agreed with the district court that the statute was void for vagueness. This Court granted the people's application for leave to appeal.

III

Shortly after the United States Supreme Court decided Roe, supra, the Michigan Supreme Court, in Bricker, supra, addressed the constitutionality of the statute at issue in the instant case. Rather than declare the Michigan statute unconstitutional as irreconcilable with Roe, the Bricker Court construed this criminal abortion statute to conform to the dictates of Roe and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). The Court said:

Now that the United States Supreme Court has spoken concerning the constitutionality of state abortion laws, we seek to save what we can of the Michigan statutes.

The central purpose of this legislation is clear enough—to prohibit all abortions except those required to preserve the health of the mother. The Supreme Court now requires other exceptions. They can properly be read into the statutes to preserve their constitutionality.

* * *

In light of the declared public policy of this state and the changed circumstances resulting from the Federal constitutional doctrine elucidated in Roe and Doe, we construe § 14 of the penal code to mean that the prohibition of this section shall not apply to "miscarriages" authorized by a pregnant woman's attending physician in the exercise of his medical judgment; the effectuation of the decision to abort is also left to the physician's judgment; however, a physician may not cause a miscarriage after viability except where necessary, in his medical judgment, to preserve the life or health of the mother.

* * *

... We hold that, except as to those cases defined and exempted under Roe v. Wade and Doe v. Bolton, supra, criminal responsibility attaches. [Bricker, supra at 529-531, 208 N.W.2d 172.]

See also Larkin v. Cahalan Prosecutor, 389 Mich. 533, 537, 208 N.W.2d 176 (1973), in which the Court stated that the constitutionality of M.C.L. § 750.14; MSA 28.204 "is discussed and decided in [Bricker], decided this day."

IV

Defendant argues that M.C.L. § 750.14; MSA 28.204, which by its express terms prohibits all abortions except those necessary to save the mother's life, was impliedly repealed by the Legislature's subsequent enactment of legislation that regulated, rather than prohibited, abortions. Defendant argues that the district court properly held that there is a clear conflict because the subsequent statutes purport to regulate conduct that M.C.L. § 750.14; MSA 28.204 makes criminal. We disagree.

The subsequent legislative enactments defendant relies on are statutes requiring parental consent,³ informed consent,⁴ and record keeping,⁵ providing immunity for those who refuse to perform abortions,⁶ prohibiting partial-birth abortions,⁷ and prohibiting Medicaid funding for abortions.⁸

Repeals by implication are not favored and will not be indulged in if there is any other reasonable construction. Wayne Co. Prosecutor v. Dep't of Corrections, 451 Mich. 569, 576, 548 N.W.2d 900 (1996). The intent to repeal must very clearly appear, and courts will not hold to a repeal if they can find reasonable ground to hold the contrary. Id. The presumption is always against the intention to repeal where express terms are not used, and the implication, in order to be operative, must be necessary. House Speaker v. State Administrative Bd., 441 Mich. 547, 562, 495 N.W.2d 539 (1993), quoting Attorney General ex rel Owen v. Joyce, 233 Mich. 619, 621, 207 N.W. 863 (1926) (citation omitted). [T]he Legislature is presumed to act with knowledge of appellate court statutory interpretations, Gordon Sel-Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 505, 475 N.W.2d 704 (1991), and ... silence by the Legislature for many years following judicial construction of a statute suggests consent to that construction. Baks v. Moroun, 227 Mich.App. 472, 489, 576 N.W.2d 413 (1998); Craig v. Larson, 432 Mich. 346, 353, 439 N.W.2d 899 (1989).

After Bricker was decided in 1973, the Legislature enacted various statutes regulating the performance of abortions, see ns. 3-8, supra, but did not revise M.C.L. § 750.14; MSA 28.204. The Legislature is presumed to be aware of the Bricker Court's interpretation of M.C.L. § 750.14; MSA 28.204, which construction permits abortions to be performed in accordance with Roe. Gordon Sel-Way, supra at 505, 475 N.W.2d 704; Craig, supra at 353, 439 N.W.2d 899. We think it clear that in enacting those statutes after Bricker, the Legislature intended to regulate those abortions permitted by Roe and Doe, and Bricker, and did not intend to repeal the general prohibition of abortions to the extent permitted by the federal constitution, as construed by the United States Supreme Court. We thus must reject defendant's argument that M.C.L. § 750.14; MSA 28.204 has been repealed by implication.

V

We also must reject defendant's argument that the Bricker Court's discussion of the constitutionality of the criminal abortion statute was mere dictum because Bricker was not a physician and therefore none of the constitutional underpinnings of Roe applied.

Black's Law Dictionary (7th ed.) defines obiter dictum as "[a] judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive)." The Michigan Supreme Court has declared, however, that "`[w]hen a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision.'" Detroit v. Michigan Public Utilities Comm., 288 Mich. 267, 299-300, 286 N.W. 368 (1939), quoting Chase v. American Cartage Co., Inc., 176 Wis. 235, 238, 186 N.W. 598 (1922). A decision of the Supreme Court is authoritative with regard to 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 to decide the case." People v. Bonoite, 112 Mich.App. 167, 171, 315 N.W.2d 884 (1982).

In deciding whether Bricker's preRoe conviction under M.C.L. § 750.14; MSA 28.204 for conspiracy to commit an abortion was lawful, the Bricker Court found it necessary to determine Roe's effect on Michigan's criminal abortion statute. Rather than simply declare that Roe was inapplicable because Bricker was not a physician,⁹ the Court squarely addressed the issue whether Roe and Doe required that Michigan's criminal abortion statute be declared completely void because it is incapable of constitutional construction, or whether the statute, in accordance with the dictates of Roe, could be construed to render it constitutional. The Bricker Court, thus, intentionally...