Michigan Cases June 02, 2022: People v. Burkman

Case Description

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Wayne Circuit Court LC Nos. 20-004636-01-FH, 20-004637-01-FH

Before: Letica, P.J., and Redford and Rick, JJ.

James Robert Redford, J. (concurring in part and dissenting in part).

I concur with the majority's conclusion that the circuit court did not err in denying defendants' motion to quash their bindover for a violation of MCL 168.932(a) under a theory of culpability alleging other corrupt means or device. I likewise concur with the majority that the prosecution of defendants' conduct does not violate defendants' First Amendment rights to free speech because defendants' speech was integral to criminal conduct. I dissent from the majority's conclusion that the conduct alleged and proofs offered below support a theory of culpability alleging a menace in violation of MCL 168.932(a), and I would reverse the trial court's decision in that regard.

As noted in the majority opinion, in these consolidated appeals, defendants, John Macauley Burkman and Jacob Alexander Wohl, appeal as on leave granted the trial court's orders denying

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their motions to quash and dismiss. Defendants were both charged with attempting to influence, deter, or interrupt electors, MCL 168.932(a), conspiracy to commit that offense, MCL 750.157a, and two counts of using a computer to commit a crime, MCL 752.796.

Defendants contend that the charges should have been dismissed because their dissemination of a robocall regarding possible repercussions of mail-in voting did not constitute a menace or use of other corrupt means or device under MCL 168.932(a). I conclude the robocall did not involve a menace to the call's recipient; however, it could be construed as a corrupt means or device. Defendants further contend that MCL 168.932(a) is unconstitutional both on its face and as applied in this case. I conclude the phrase "other corrupt means or device" is not unconstitutionally vague. Concerning defendants' First Amendment arguments, the robocall message was not a "true threat," but is still not subject to First Amendment protections because it was speech integral to criminal conduct. Accordingly, I would reverse in part, affirm in part, and remand to the trial court for further proceedings consistent with this opinion.

I generally concur with the majority's description of the basic facts and procedural history of the case, found in § I of its opinion. I agree with the majority's recitation of the standard of review in § II, the analysis of MCL 168.932 regarding a corrupt means or device in § III (B) and the First Amendment analysis in § IV.

I disagree with the majority's analysis in § III (B) regarding the menace theory of liability under MCL 168.932.

I. APPLICATION OF MCL 168.932 REGARDING MENACE

Defendants assert that their conduct does not constitute a violation of the voter suppression statute. I agree that the charged conduct and evidence presented below does not constitute a menace under the statute but disagree that it is not the use or attempted use of a corrupt means or device.

MCL 168.932 provides, in pertinent part:

A person who violates 1 or more of the following subdivisions is guilty of a felony:

(a) A person shall not attempt, by means of bribery, menace, or other corrupt means or device, either directly or indirectly, to influence an elector in giving his or her vote, or to deter the elector from, or interrupt the elector in giving his or her vote at any election held in this state.

Defendants contend that the robocall was not menacing because it did not involve a threat of physical assault. I agree.

Cases discussing menacing behavior indicate that to "menace" means to make a serious threat of assault by overt conduct that causes the victim to reasonably believe that the person making the threat will do what is threatened. See generally, People v Doud , 223 Mich. 120, 129-131; 193 N.W. 884 (1923) (explaining that Michigan law forbids a defendant from menacing of human life by threatening an assault with a dangerous weapon); People v Reeves , 458 Mich. 236, 245; 580 N.W.2d 433 (1998) (describing menacing conduct as the defendant's placement of his

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hand in a bag and pointing it at the complainant while saying, "What's more important, your job or your life?"). In People v Braman , 30 Mich. 460, 467-468 (1874), our Supreme Court discussed the proper interpretation of a statute that criminalized threatening the accusation of a crime as a means of extortion, and specifically considered what the Legislature meant regarding a threat:

Do not the expressions which the legislature have here employed fairly denote that the accusation threatened must be signified or indicated as one to proceed from the defendant ?

When the law speaks of his threat " to accuse," when it exclusively alludes to the defendant and the party threatened, and makes no reference to any one else, in the relation we are now considering, can it be supposed that it was intended to include the case of a threat that some third party would accuse?

If such had been the design, we may suppose the legislature would have expressed themselves in terms certainly more appropriate to convey it. Considering the phraseology used, and considering also that it occurs in a provision introducing and defining a criminal offense, I am unable to apply the expression broadly and as though the words imported no limitation . The idea conveyed is, as it seems to me, that the accusation menaced is to be one threatened to come from the party threatening, and not exclusively from some other. Hence, however malicious and wicked the threat, unless it menace a criminal accusation by the author of the threat, the case is not within the offense the legislature have seen fit to mark out: 1 Bish. C. L., § 67; Coe v Lawrence , 16 E. L. & E., 252; Reg v Williams , 1 Den. C. C., 39. [Emphasis in original.]

In this case, defendants did not express to recipients of the robocalls that defendants would do the acts threatened but stated that others might do the described offensive acts. Accordingly, defendants' expression in the robocalls does not fit the jurisprudential concept of a menace or menacing, and therefore, the robocall was not menacing.

II. CONCLUSION

For the reasons set forth in that portion of the majority's opinion with which I concur, and the reasons set forth above, I conclude the trial court did not err in denying the motion to quash the bindover in this matter on all grounds but the menace theory of liability, nor did the district court abuse its discretion in the decision to bind over defendants to the circuit court for trial for

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violation of the statute by corrupt means or device. I would affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.