If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN COURT OF APPEALS TRUGREEN LIMITED PARTNERSHIP, FOR PUBLICATION April 10, 2020 Plaintiff-Appellant, v No. 344142 Court of Claims DEPARTMENT OF TREASURY, LC No. 17-000141-MT Defendant-Appellee. Before: SHAPIRO, P.J., and GLEICHER and SWARTZLE, JJ. SHAPIRO, P.J. (concurring). I concur fully in Judge Gleicher’s opinion. I write separately only to address some aspects of the dissenting opinion. First, despite its fine prose, the dissent’s analysis rests on a single point i.e., that the phrase “things of the soil” is not a term of art. I disagree. That phrase is plainly a term of art and patching together definitions of its individual component words is not consistent with proper statutory interpretation. Second, the dissent’s approach would greatly expand the scope of this tax exemption beyond what it has been for 70 years. To accomplish that, I suggest that more than a dictionary is required. Third, the dissent does not give respectful consideration to the interpretation by the body charged with applying the statute. I. “THINGS OF THE SOIL” IS A TERM OF ART The dissent rests on its assertion that interpretation of the statute at issue does not require “an effort to unearth the meaning of oft-obscure, technical language.” To the contrary: the origin and meaning of the phrase “things of the soil” is most certainly obscure. I doubt that any member of this Court has ever heard the phrase in conversation or even seen it in a book other than perhaps the Bible.^[1]

A term of art has been defined as “a word or phrase that has a specific meaning or precise meaning within a given discipline or field and might have a different meaning in common usage.”2 Accordingly, we are to construe the term by its established use in the law, not by looking up the individual words in the dictionary. This not a new idea and is mandated by statute. MCL 8.3(a) provides that “[a]ll words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.” (Emphasis added).

Consistent with decades of caselaw, I conclude that the phrase “things of the soil” has an established meaning in Michigan law, i.e., crops grown for harvest and sale. Despite the dissent’s confidence that every reasonable person would know that this phrase includes residential lawns, no case has even suggested such a reading in 70 years. Nor has any taxpayer—until this case— made such a claim.

II. THE CONTEXT

The dissent reads the first sentence of the statute in isolation. For example, the second sentence does not refer to the “caring for horticulture” but to the “caring for horticultural products.” MCL 205.94(1)(f). A product is an object that may be sold to another. TruGreen does not explain how the grass it cares for is a “product” and for good reason. With rare exceptions (which will likely fall within the exemption) private residential plants and lawns are not for sale. They are not “products.” TruGreen does not care for something that will become a product. Rather it provides a service to residential property owners who would never qualify for the exemption themselves. Certainly “products” are used to care for the private lawn but no product, horticultural or otherwise is created.

Reading the rest of the statute leads to the same conclusion. The items specifically listed as falling within the exemption are:

- machinery capable of harvesting grain or other crops or biomass - agricultural land tile or other drainage system “used in the production of agricultural products” - portable grain bins - grain drying equipment - greenhouses. [MCL 205.94(1)(f).]

It would be highly unusual for a private residence to use “portable grain bins,” “grain drying equipment” or any of the other items that were intended to fall within the exemption and exemplify its scope. And of course, the exemplar list does not include anything that would be particularly used to maintain a private lawn or garden.^[3]

The dissent suggests that the Legislature could have made its intention regarding non- agricultural application of the exemption clear by including the terms “for agricultural purposes.” This is a straw man argument—one could just as easily say that the Legislature could simply have added the phrase “including lawn care” or “including services to residential property.”

III. THE DEPARTMENT’S INTERPRETATION

In my view, the agency has not overstepped its authority; rather, it has exercised its lawful authority to apply the law defining the scope of this particular tax exemption and has done so consistent with the statute. It is well-settled that “the construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons.” Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935) (quotation marks and citation omitted). Moreover,

while not controlling, the practical construction given to doubtful or obscure laws in their administration by public officers and departments with a duty to perform under them is taken note of by the courts as an aiding element to be given weight in construing such laws, and is sometimes deferred to when not in conflict with the indicated spirit and purpose of the Legislature. [Id. at 296-297 (quotation marks and citation omitted).]

The Department’s long-standing construction of the statute is not in conflict with “the indicated spirit and purpose” of the statute yet the dissent gives its construction no credence whatsoever, let alone respectful consideration. The dissent reads as though interpretation of this statute did not exist prior to the time its author picked up the dictionary.^[4]

IV. JURISPRUDENCE BY DICTIONARY

The use of dictionaries as sources of law is a very recent phenomenon. For 140 years, from 1845 through 1984, the Michigan Supreme Court cited to a lay dictionary in less than 1% of its cases. From 1985 through 1994, it cited to lay dictionaries in about 8% of cases and from 1995 to 2005 (as the “textualist” era began) in 14%. Since then there has been an explosion in reliance on the dictionary; from 2005 to the present, the Court has cited lay dictionaries in an astonishing 37% of cases.5 More Supreme Court cases were decided using lay dictionaries in the era since 2000 than in the entire 155 years that preceded it. This explosion in courts’ use of dictionaries has occurred in the face of intense criticism from legal scholars, language experts, and even dictionary editors. Critics point out that it allows for dictionary shopping and cherry-picking;6 that it is inconsistent with language theory; and that legislative drafters themselves apparently do not rely on dictionaries to any great extent.^[7] The authors of one exhaustive study of United States Supreme Court opinions concluded that “the image of dictionary usage as . . . authoritative is little more than a mirage.”8

Nevertheless, jurisprudence by dictionary remains tempting; it requires no effort beyond looking up a few words and picking the definition that support the author’s position. More insidiously, it implies that reasoned good-faith discussion, analysis of caselaw and context, and stare decisis are not aids to interpretation, but rather stumbling blocks on the path to the absolute clarity that can only be provided by a dictionary. Dictionary usage has become a fetish by which reasoned analysis, criticism, and concern for actually existing conditions are rendered irrelevant to the judicial process. Despite the ease of deciding cases by dictionary, the question is what the intent of the Legislature was, not what the intent of a dictionary editor is. The Legislature has no official dictionary and has not commanded us to conclusively rely on a particular, or indeed any, dictionary in order to understand its intent.

The fetishization of dictionaries has even led thoughtful jurists like our dissenting colleague to conclude that any attempt by the courts to interpret a statute by means other than a dictionary is “outside of our proper role and competency.” Such an approach dispenses with the constitutional fact that the judiciary is an independent co-equal branch of government and ultimately responsible for the interpretation of statutes and their fair application in individual cases.9 The judiciary is not subservient to the editors of dictionaries and the dictionary is not established by our constitution as the guiding force in jurisprudence. I suggest that it is time we put the dictionary back on the shelf and resume our constitutional role. /s/ Douglas B. Shapiro