People v. Posner

• Decision Date: 11 October 1977
• Docket Number: Docket Nos. 29670,29819
• Citation: 261 N.W.2d 209,79 Mich.App. 63
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel POSNER, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Noel KEANE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 209

261 N.W.2d 209

79 Mich.App. 63

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel POSNER, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Noel KEANE, Defendant-Appellant.

Docket Nos. 29670, 29819.

Court of Appeals of Michigan.

Oct. 11, 1977.

Rehearing Denied Nov. 21, 1977.

Released for Publication Jan. 13, 1978.

Posner, Posner & Posner by Samuel Posner, in pro. per., and Gerald F. Posner, Detroit, for Samuel Posner.

Lippit, Harrison, Perlove, Freidman & Zack by Robert S. Harrison, Southfield, for Keane.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Paul S. Teranes, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and KAUFMAN and BORCHARD, ^* JJ.

KAUFMAN, Judge.

On April 10, 1973, the Wayne County Citizens Grand Jury indicted defendants and others on a charge of conspiracy to solicit personal injury claims in violation of M.C.L.A. § 750.410; M.S.A. § 28.642. Defendants were bound over for trial March 17, 1975.

Defendants filed motions to dismiss the indictments, alleging that the statute under which they were indicted was unconstitutional. Detroit Recorder's Court Judge Henry Heading denied the motions May 28, 1976. Judge Heading also denied defendants' motions for rehearing.

Upon certification of the issues raised by defendants by the trial court, defendants filed application for leave to appeal. This Court granted leave.

The statute challenged by defendants originally provided:

"Sec. 410. Any person, firm, copartnership, association or organization of any kind, either incorporated or unincorporated, or any of the officers, agents, servants, employees, or members of any such person, firm, copartnership, association or organization of any kind, either incorporated or unincorporated, or of any division, bureau or committee of such association or organization, either incorporated or unincorporated, who shall directly or indirectly, individually or by agent, servant, employee, or member solicit any person injured as the result of an accident, his administrator, executor, heirs or assigns, his guardian, or members of the family of the injured person, for the purpose of representing such person in making claim for damages or prosecuting any action or causes of action arising out of any personal injury claim against any other person, firm, or corporation, or to employ counsel for the purpose of such solicitation, shall be guilty of a misdemeanor, and shall upon conviction thereof, if a natural person, be punished by a fine not to exceed $500.00, or by imprisonment in the county jail for a term not to exceed 6 months, or by both such fine and imprisonment, in the discretion of the court. The same penalties shall apply upon conviction to a member of a copartnership, or any officer or agent of any corporation, association or other organization, or any officer or agent, who shall consent to, participate in, or aid or abet any violation of this section upon the part of the copartnership of which he is a member, or of the corporation, association or organization of which he is such an officer or agent. Any contract entered into as a result of such solicitation shall be void: Provided, however, That nothing herein shall affect an unsolicited contract entered into by any person, firm or corporation with an attorney duly admitted to practice law in this state."

That statute was amended in 1975, by the changes indicated by the underscored language:

"Sec. 410. (1) A person, firm, copartnership, association or organization of any kind, either incorporated or unincorporated, or any of the officers, agents, servants, employees, or members of any such person, firm, copartnership, association or organization of any kind, either incorporated or unincorporated, or of any division, bureau or committee of that association or organization, either incorporated or unincorporated, who shall directly or indirectly, individually or by agent, servant, employee, or member, solicit a person injured as the result of an accident, his administrator, executor, heirs or assigns, his guardian, or members of the family of the injured person, for the purpose of representing that person in making a claim for damages or prosecuting an action or cause of action arising out of a personal injury claim against any other person, firm, or corporation, or to employ counsel for the purpose of that solicitation, is guilty of a misdemeanor, and shall upon conviction thereof, if a natural person, be punished by a fine not to exceed $500.00, or by imprisonment * * * for a term not to exceed 6 months, or both. * * * The same penalties shall apply upon conviction to a member of a copartnership, or an officer or agent of a corporation, association or other organization, or an officer or agent, who shall consent to, participate in, or aid or abet a violation of this section upon the part of the copartnership of which he is a member, or of the corporation, association, or organization of which he is such an officer or agent. A contract entered into as a result of such a solicitation is void. This subsection shall not affect an unsolicited contract entered into by a person, firm, or corporation with an attorney duly admitted to practice law in this state.

"(2 ) Except as otherwise provided by law, administrative rule, or valid legal process, any person, firm or corporation who, for any consideration and without the prior written permission of a patient or his personal representative, furnishes, receives, buys, offers to buy, sells, or offers to sell, directly or indirectly, the identity of the patient or any information concerning the treatment of the patient, including but not limited to information contained in the files or records of a health care facility, health care provider or insurance company, is guilty of a misdemeanor punishable by imprisonment for not more than 6 months or by a fine of not more than $500.00, or both."

A preliminary issue that must be dealt with is the question of standing of defendants to challenge the constitutionality of this statute.

The trial court, in denying defendants' motions to dismiss, found that defendants were "assert(ing) the rights of those not in Court". Thus, it noted, "(w)hile it is of paramount importance that precious First Amendment freedoms be given the most careful protection, there will be time enough to erect those barriers when the threat at issue is more substantial * * *". We cannot agree.

In First Amendment cases, the United States Supreme Court has permitted an exception to the traditional doctrine "that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court". (Citations omitted.) Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). The Supreme Court noted:

"It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society. Herndon v. Lowry, 301 U.S. 242, 258, 57 S.Ct. 732, 81 L.Ed. 1066 (1937), Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), Grayned v. City of Rockford, 408 U.S. 104, at 116-117, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)." 413 U.S. at 611-612, 93 S.Ct. at 2915.

Applying that principle to the standing doctrine, the Supreme Court held:

"As a corollary, the Court has altered its traditional rules of standing to permit in the First Amendment area 'attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' Dombrowski v. Pfister, 380 U.S. 479, at 486, 88 S.Ct. (1116), at 1121, 14 L.Ed.2d 22 (1965). Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." 413 U.S. at 612, 93 S.Ct. at 2916.

The holding cited above is not an absolute, however. The Supreme Court noted that "(f)acial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute". ¹413 U.S. at 613, 93 S.Ct. at 2916. Plaintiffs argue that a limiting construction has been placed on the statute, citing Hightower v. Detroit Edison Co., 262 Mich. 1, 247 N.W. 97 (1933), and Kelley v. Judge of Recorder's Court of Detroit, 239 Mich. 204, 214 N.W. 316 (1927). However, we find that amendments to the statute subsequent to Hightower and Kelley have substantially broadened its scope; thus, those two cases cannot be used as authoritative constructional guides. We further hold that we cannot now give a limiting construction to the statute in such a way to deny defendants standing. As noted by this Court in Phillips v. Flint, 57 Mich.App. 394, 399, 225 N.W.2d 780, 782 (1975), "* * * in a First Amendment case, an ex post facto construction cannot vitiate the prior 'chill' of an overbroad law on those who challenge it".

Turning then to the merits of the case, defendants attack the statute as unconstitutionally vague, overbroad, and violative of the Equal Protection Clause of the Fourteenth Amendment. Substantially the same arguments were made in an action before Judge Horace Gilmore of the Wayne County Circuit Court, asking for declaratory and injunctive relief. In Woll v. Kelley (Wayne County Circuit Court, Action No. 76 610 569 CZ), Judge Gilmore ruled...