Stephen Markman

Michigan Supreme Court Justice Stephen Markman wants state lawmakers to clarify statutes that criminalize administrative offenses. Offenders are often surprised when they are charged with a “strict liability public welfare offense” because it is not obvious the act is a crime.

Michigan has a number of such statutes on the books, such as driving a snowmobile that is too loud or modifying private property that a regulator may view as a protected wetland. The acts are often misdemeanors punishable by a fine, but if convicted the offenders have a criminal record, impeding their ability to find a job or get a loan.

Justice Markman made note of such statutes in the case, People of the State of Michigan v. Alan N. Taylor, which was decided this year.

“Our Legislature might wish to take care in defining critical terms and elements with as much specificity as possible and in terms that are as accessible to ordinary citizens as possible so that they might readily understand what course of conduct it is lawful, and unlawful to pursue,” wrote Justice Markman.

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The case involved Alan Taylor, who owns a medical-device company in Sparta. Taylor wanted to expand a parking lot for his growing business. When he was done, the Department of Environmental Quality informed him that his expanded lot encroached on a wetland, which was not apparent at the time of construction. There was no nearby stream and the DEQ’s lead investigator admitted it was not clear the site was a protected wetland. The DEQ wanted Taylor to demolish the lot and restore the site.

Taylor refused and was charged with a crime. He was found guilty and ordered to pay $8,500 in fines and costs. Taylor appealed and the Supreme Court eventually denied his complaint, but Justice Markman felt the case highlighted the issue of “mens rea,” the Latin legal term for “guilty mind,” and spelled out specific action the Legislature should take.

“It is the responsibility of our Legislature to determine the state of mind required to satisfy the criminal statutes of our state, and the judiciary is ill-quipped when reviewing increasingly broad and complex criminal statutes to discern whether some mens rea is intended, for which elements of an offense it is intended, and what exactly that mens rea should be,” Justice Markman wrote.

One lawmaker is listening. Representative Mike Shirkey, R-Clarklake, has introduced House Bill 5807 which would require “a culpable mental state that the person act purposely, knowingly or recklessly” for any criminal offense laws after Jan. 1, 2015.

In a policy brief from December 2013, Mackinac Center Executive Vice President Michael J. Reitz argues for a “default” mens rea provision for public welfare offenses.

This “would have a moderating influence on unwarranted prosecutions and would concentrate the potency of criminal sanctions on truly culpable behavior,” Reitz wrote.

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See also:

Not so Criminal Minds: Government Convicts People Who do not Knowingly Commit a Crime

Vague Criminal Laws Threaten Individual Liberty and Burden the Justice System 

Michigan's Craziest Laws: Don't Seduce An Unmarried Woman Or Dance To the National Anthem

Property Doesn't Commit Crimes, People Do

Mackinac Center Study: Government Property Seizures Threaten the Rights of All

New Bill Would Shed Light On Asset Forfeiture In Michigan


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