Woll v. Kelley

Decision Date22 December 1980
Docket NumberDocket Nos. 61257,8,60809,60810,Nos. 7,s. 7
Citation297 N.W.2d 578,409 Mich. 500
PartiesArthur S. WOLL, Plaintiff-Appellant, v. Frank J. KELLEY, Attorney General of the State of Michigan; and William L. Cahalan, Prosecuting Attorney for the County of Wayne, Defendants-Appellees. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Samuel POSNER, Defendant-Appellee, and Noel Keane, Defendant-Appellee. Calendar
CourtMichigan Supreme Court

Ivan E. Barris, Michael H. Golob, David F. DuMouchel, Detroit, for woll.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas L. Casey, Asst. Atty. Gen., Lansing, for defendant-appellee Attorney General.

William L. Cahalan, Pros. Atty., Theodore Stephens, Deputy Chief, Civ. Dept., Rheo C. Marchand, Asst. Pros. Atty., Detroit, for defendant-appellee William L. Cahalan.

William L. Cahalan, Pros. Atty., Patrick J. Foley, Paul S. Teranes, Asst. Pros. Attys., Wayne County Organized Crime, Task Force, Detroit, for the People.

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

Lippitt, Harrison, Perlove, Friedman & Zack by Robert S. Harrison & Bernard Feldman, Southfield, for Keane.

LEVIN, Justice.

A statute makes it a misdemeanor to solicit a person injured as a result of an accident for the purpose of making a claim for damages or prosecuting an action based on the injury. 1 Woll, Posner and Keane, who are lawyers were indicted under the statute. They contend that the statute is void for vagueness and because it deprives them of equal protection of the law. Woll further contends that the statute is inapplicable to workers' compensation cases.

We hold:

1) The Legislature intended that the statute apply to workers' compensation cases, at least where the claim arises out of an accident. Because of ambiguity in the expression the statute did not, however, provide the notice requisite for a criminal statute that workers' compensation claims were within its ambit. We therefore give prospective effect only to our construction that the statute applies to the solicitation of workers' compensation cases arising out of an accident.

2) The limitation to prosecution of personal injury claims does not deny equal protection of the law. The Legislature could properly conclude that solicitation of personal injury claims presents a risk of harm significantly different from solicitation of other legal business, including personal injury defense, and that a special criminal disincentive was needed to discourage such behavior.

3) While the statute may be unconstitutional because of overbreadth, the overbreadth can be cured by a limiting construction. The statute when so construed can be applied retroactively to the complained-of conduct, because, although the statute is overbroad, it provided adequate warning that it proscribed in-person solicitation of the kind that the Legislature can prohibit.

4) The indictments must, however, be dismissed because the grand juries' assessment of the evidence had not theretofore been circumscribed by a construction limiting the grand juries' discretion; the grand juries, applying a literal construction of the statute, may have indicted and an amended indictment may have been filed for conduct protected by the First Amendment. Since the statute provided adequate warning that it proscribed conduct that can be prohibited, dismissal is without prejudice to reindictment after a limiting construction is placed on the statute.

5) None of the parties have considered in their briefs what would constitute a proper limiting construction. Woll sought a declaratory judgment. We remand his case to the Court of Appeals so that it can determine a limiting construction consistent with the First Amendment.


The Court of Appeals held the statute unconstitutional in Posner and Keane and constitutional in Woll. We granted leave to appeal to resolve the conflict, limited to whether the statute is unconstitutionally overbroad in that it infringes protected areas of freedom of speech and expression, and whether it violates the equal protection guarantees of the Michigan and United States constitutions and, in Woll, additionally, to whether the statute applies to workers' compensation cases.

Posner and Keane

Posner and Keane were indicted by a citizens' grand jury on a charge of conspiracy to solicit personal injury claims. After preliminary examination they were bound over for trial and an amended indictment was filed.

The Recorder's Court denied motions to dismiss which alleged that the statute is unconstitutional because it denies equal protection and is vague in failing to give adequate notice of its proscription and in being overbroad.

The Court of Appeals granted interlocutory appeal. Without reaching the equal protection claim, it held that the statute is unconstitutionally overbroad, and dismissed the indictment. 2


Woll filed a complaint for declaratory judgment and injunctive relief against the Attorney General and Wayne County Prosecuting Attorney. He alleged that he is an attorney engaged in a personal injury and workers' compensation practice, that an actual controversy exists because any attorney engaged in such a practice would be liable for prosecution under the statute 3 and, additionally, because there was already underway an inquiry into his activities by a law enforcement agency. 4

Woll claimed that the statute is unconstitutional because it denies equal protection of the law and because it is vague in i) failing to provide adequate notice of the conduct prohibited, ii) infringing on protected areas of speech (overbreadth) and iii) conferring excess discretion on governmental authorities. Woll also sought to have the statute, if constitutional, construed as inapplicable to workers' compensation cases.

Within the month, Woll was indicted by a citizens' grand jury on charges of solicitation of personal injury claims, conspiracy to solicit personal injury claims, obstruction of justice and conspiracy to obstruct justice. The following day the Attorney General filed a counterclaim in Woll's declaratory judgment action asking the court to construe the statute in "a manner consistent" with the constitutions of the United States and Michigan. 5

The circuit court held that the statute denied equal protection of the law and was unconstitutionally overbroad. The Court of Appeals held that the facial overbreadth doctrine is inapplicable to a statute addressed to commercial speech 6 and that the statute as applied to Woll is not unconstitutional on vagueness or equal protection grounds. 7


Woll contends that the statute does not prohibit the solicitation of workers' compensation claims. He argues that it "should be construed in a narrow manner, consistent with the doctrine that penal statutes are to be strictly construed, so that the (statutory) term 'person injured as the result of an accident' does not apply to workers' compensation cases."


The statute applies to "(a) person * * * who shall * * * solicit a person injured as the result of an accident * * * for the purpose of representing that person in making a claim for damages or prosecuting an action or causes of action arising out of a personal injury claim * * *." 8

Woll contends that the Worker's Disability Compensation Act 9 is a specific statute which comprehensively addresses the entire subject matter of workers' compensation claims and a general statute such as the solicitation statute does not apply. This aid to construction is inapplicable 10 where, as here, there is no conflict between the statutes.

Similarly, while a criminal statute is strictly construed, 11 we understand that to mean only that persons are entitled to fair warning that the conduct is proscribed and that the courts will not by construction stretch the meaning beyond the terms of the statute to include conduct outside the legislative intendment. "The rule of strict construction confines an offense to the words of the statute, but it permits the words not only to be read naturally but to be given a meaning in harmony with the purpose and intent of the law as far as may be done without distortion of language." 12 In construing a criminal statute, as any other statute, we seek to determine and implement the legislative purpose.


As originally enacted in 1912, 13 the Worker's Disability Compensation Act covered "accidental" injury. 14 The solicitation statute, enacted in 1925, 15 speaks of solicitation of a person "injured as the result of an accident." Since the workers' compensation statute covered accidental injury, the language of the solicitation statute in terms includes the solicitation of workers' compensation claims. An injury resulting from accident undergoes no transformation when it also arises "out of and in the course of" employment; the "person injured" is nevertheless "injured as the result of an accident."

The term "personal injury claim" describes a workers' compensation claim 16 as well as a claim in tort.

While "action" or "causes of action" sounds in common-law pleading, the alternative phrase of the solicitation statute, "in making a claim for damages," can mean either a claim in tort or for workers' compensation. An injured worker who has suffered a specific loss or who requires medical attention or is disabled from earning wages has suffered "damages" no less than if the workers' compensation act had not been enacted and his claim for recovery could only be asserted in a court of law. Although a worker seeks "compensation" rather than a money judgment, he asserts a "claim for damages."

Woll argues that whatever rationales support the general prohibition, they are inapposite to workers' compensation because attorneys' fees in workers' compensation cases are supervised. 17 But attorney fees have always been subject to judicial supervision...

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