People v. Lueth

• Citation: 253 Mich. App. 670,660 N.W.2d 322
• Decision Date: 04 February 2003
• Docket Number: Docket No. 226717.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jon Frederick LUETH, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

660 N.W.2d 322

253 Mich. App. 670

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jon Frederick LUETH, Defendant-Appellant.

Docket No. 226717.

Court of Appeals of Michigan.

Submitted September 5, 2002, at Lansing.

Decided November 1, 2002, at 9:30 a.m.

Released for Publication February 4, 2003.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Larry J. Burdick, Prosecuting Attorney, and William E. Molner, Assistant Attorney General, for the people.

John Groves, West Bloomfield, for the defendant on appeal.

Before: MARKEY, P.J., and MARK J. CAVANAGH and R.P. GRIFFIN¹, JJ.

PER CURIAM.

Defendant appeals as of right his convictions, following a jury trial, of larceny by false pretenses of over $100, M.C.L. § 750.218, embezzlement by an agent of over $100, M.C.L. § 750.174, and horse racing violations, M.C.L. § 431.329.² Defendant's convictions were based on charges that he permitted wagering on account, issued vouchers without receiving cash in exchange, wrote "returns" (signifying cash removed and placed in the cash room) and placed them in teller drawers without placing corresponding cash in the cash room, and took cash intended for deposit in the victim's bank, but deposited it in his personal account. Defendant was sentenced to prison for one to ten years for false pretenses, two to twenty years for embezzlement, and one year for the racing violations, to be served concurrently. In addition, defendant was ordered to pay $454,125 in restitution to the victim in this case, Mt. Pleasant Meadows Racetrack (MPM). He appeals his convictions, the order of restitution, and the imposition of both prison terms and restitution for his crimes. We affirm.

I

Defendant challenges the statutes that concern the legality of horse race wagering, M.C.L. § 431.317(1) and M.C.L. § 431.329, as being unconstitutionally vague and overbroad, and claims they violate the doctrine of separation of powers. The relevant statutes read:

The pari-mutuel system of wagering upon the results of horse races as permitted by this act shall not be held or construed to be unlawful. All forms of pari-mutuel wagering conducted at a licensed race meeting shall be preapproved by the racing commissioner pursuant to rule or written order of the commissioner. [MCL 431.317(1)].

A person who willfully aids, assists, or abets the violation of this act or the rules promulgated under this act is guilty of a misdemeanor punishable by a fine of not more than $10,000.00 or by imprisonment for not more than 1 year, or both. For the purpose of this section, each day of racing in violation of this act constitutes a separate offense. [MCL 431.329.]

Statutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent. People v. Rogers, 249 Mich.App. 77, 94, 641 N.W.2d 595 (2001). The presumption of constitutionality may justify a narrow construction or even construction against the natural interpretation of the statutory language. People v. FP Books & News, Inc. (On Remand), 210 Mich.App. 205, 209, 533 N.W.2d 362 (1995); Lowe v. Dep't of Corrections (On Rehearing), 206 Mich.App. 128, 137, 521 N.W.2d 336 (1994).

Defendant asserts the horse racing statutes are vague because they do not specifically identify what conduct is prohibited, but, instead, reference the rules and orders promulgated by the commissioner. A statute can be found vague if (1) it does not provide fair notice of what conduct is prohibited or required, (2) it is overbroad and impinges on First Amendment freedoms, or (3) it is so indefinite that it confers unstructured and unlimited discretion on the trier of fact to determine whether the law has been violated. People v. Noble, 238 Mich.App. 647, 651, 608 N.W.2d 123 (1999). Although the statute "cannot use terms that require persons of ordinary intelligence to guess its meaning and differ about its application", the statute is sufficiently definite if its meaning can fairly be ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words. Id. at 652, 608 N.W.2d 123.

Defendant claims that the statutes do not give proper notice of what acts are illegal because they are not identified directly in the statutes.³ However, a statute is not vague simply because the conduct it proscribes is identified by reference to agency rules rather than directly by the statutory language. See Ray Twp. v. B & BS Gun Club, 226 Mich.App. 724, 732-733, 575 N.W.2d 63 (1997). The reference to the rules of the racing commissioner is clear; furthermore, defendant, as a licensee of the commissioner, had full notice of the rules. Thus, the statute's reliance on the agency's rules is not a basis for finding the statutes vague.

Defendant's assertion that the statutes are overbroad because they "could also extend to legal betting operations" likewise fails. An overbroad statute prohibits protected conduct, primarily conduct protected by the First Amendment. People v. Morey, 230 Mich.App. 152, 164, 583 N.W.2d 907 (1998); People v. McCumby, 130 Mich.App. 710, 714, 344 N.W.2d 338 (1983). The conduct at issue here, wagering on horse races, is not constitutionally protected. See Berry v. Racing Comm'r, 116 Mich.App. 164, 171, 321 N.W.2d 880 (1982). Thus, we examine the challenge in light of the particular facts of this case. Ray Twp., supra at 732, 575 N.W.2d 63. The assertion that the statutes "could also extend to legal betting operations" does not apply to the facts of this case; here, we are concerned with illegal betting. We therefore find the statutes are not overbroad.

Defendant also challenges the statutes as an improper delegation of power to an administrative agency, i.e., the office of racing commissioner. "[L]egislation in which power is delegated to an administrative agency must contain language, expressive of the legislative will, that defines the area within which an agency is to exercise its power and authority." Westervelt v. Natural Resources Comm., 402 Mich. 412, 439, 263 N.W.2d 564 (1978). Thus, to preserve the constitutional separation of powers, the Legislature must provide standards to effectively measure agency compatibility with the legislative will. Id. The constitution permits the Legislature to set forth standards that are flexible and practicable enough so that they can be adapted to conditions with which the Legislature cannot deal practically on an individual basis. Petrus v. Dickinson Co. Bd. of Comm'rs, 184 Mich. App. 282, 294-295, 457 N.W.2d 359 (1990). The criteria used to evaluate whether proper standards have been set are (1) the act must be read as a whole, (2) the act carries a presumption of constitutionality, (3) the standards must be as reasonably precise as the subject matter requires or permits and the preciseness required of the standards will depend on the complexity of the subject, and (4) that the statute satisfies due process requirements. Blue Cross & Blue Shield v. Governor, 422 Mich. 1, 51-52, 367 N.W.2d 1 (1985). "Reasonably precise" does not mean specific language is required; the Legislature may provide standards "`under quite general language, so long as the exact policy is clearly made apparent.'" West Ottawa Pub. Schs. v. Babcock, 107 Mich.App. 237, 243, 309 N.W.2d 220 (1981), quoting GF Redmond & Co. v. Mich. Securities Comm., 222 Mich. 1, 192 N.W. 688 (1923). To ensure satisfaction of due process requirements, a sufficient totality of safeguards, including "standards," must exist to assure that the public will be protected against potential abuse of discretion at the hands of administrative officials. Westervelt, supra at 442-443, 263 N.W.2d 564.

The office of racing commissioner was created by M.C.L. § 431.303:

The office of racing commissioner is created within the department of agriculture. The racing commissioner has the powers and duties prescribed in this act and shall administer the provisions of this act relating to licensing, enforcement, and regulation. The racing commissioner also has those additional powers necessary and proper to implement and enforce this act and to regulate and maintain jurisdiction over the conduct of each licensed race meeting within this state where horse races or pari-mutuel wagering on the results of horse races is permitted for a stake, purse, prize, share, or reward.

In M.C.L. § 431.307, the Legislature set forth standards under which the commissioner is authorized to promulgate rules:

(1) The racing commissioner may promulgate rules pursuant to the administrative procedures act of 1969, 1969 PA 306, M.C.L. § 24.201 to 24.328, for conducting horse racing, pari-mutuel wagering on horse racing results, and simulcasting. The rules promulgated under this section shall be designed to accomplish all the following:

(a) The governing, restricting, approving, or regulating of horse racing, pari-mutuel wagering on the results of horse races, and simulcasting conducted at licensed race meetings within this state.

(b) The promoting of the safety, security, growth, and integrity of all horse racing, pari-mutuel wagering on the results of horse races, and simulcasting conducted at licensed race meetings within this state.

(c) The licensing and regulating of each person participating in, or having to do with, pari-mutuel horse racing and wagering, and simulcasting at licensed race meetings within this state.

Defendant asserts that the Legislature did not provide reasonably precise standards in the statutes and he claims there are no statutory guidelines for enforcement or oversight and no definition of what constitutes legal pari-mutuel wagering. He argues that the jury is left to decide what is a crime under the statutes, then claims that the racing commissioner has unlimited discretion to decide what conduct is criminal, both creating the law and enforcing it. We disagree.

Wagering on...