scienter requirement in Michigan

2021The United States Supreme Court reversed and held that the prosecution must prove that the defendant knew his weapon was automatic because the criminal-intent presumption required the defendant to “know the facts that make his conduct illegal.” Id. at 605 ; see also United States v X-Citement Video, Inc, 513 US 64, 72 ; 115 S Ct 464 ; 130 L Ed 2d 372 (1994) (“[T]he presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.”).

2021The United States Supreme Court reversed and held that the prosecution must prove that the defendant knew his weapon was automatic because the criminal-intent presumption required the defendant to “know the facts that make his conduct illegal.” Id. at 605 ; see also United States v X-Citement Video, Inc, 513 US 64, 72 ; 115 S Ct 464 ; 130 L Ed 2d 372 (1994) (“[T]he presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct.”).

2021While I agree with Justice ZAHRA that the operation of MCL 205.428(3) plugs in a violation from elsewhere in the TPTA, because of the complexity of the regulatory scheme, I do not agree that his reading of the statute achieves the purpose of the scienter presumption. 4 This statute functions much like the statute at issue in Liparota v United States, 471 US 419 ; 105 S Ct 2084 ; 85 L Ed 2d 434 (1985).

2021While I agree with Justice ZAHRA that the operation of MCL 205.428(3) plugs in a violation from elsewhere in the TPTA, because of the complexity of the regulatory scheme, I do not agree that his reading of the statute achieves the purpose of the scienter presumption. 4 This statute functions much like the statute at issue in Liparota v United States, 471 US 419 ; 105 S Ct 2084 ; 85 L Ed 2d 434 (1985).

2025Further, (4) the person must have known that the statement contained false information, and (5) the statement concerned a fact or thing material to the claim. [Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772, 779-780 ; 910 NW2d 666 (2017).] MCL 500.3173a “unambiguously establishes that the only scienter requirement is mere knowledge that the statement contains false information concerning a fact or thing material to the claim[.]” Bakeman v Citizens Ins Co of the Midwest, 344 Mich App 66 , 74; 998 NW2d 743 (2022) (quotation marks and citation omitted).7 “A statement is material if it

2025Further, (4) the person must have known that the statement contained false information, and (5) the statement concerned a fact or thing material to the claim. [Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772, 779-780 ; 910 NW2d 666 (2017).] MCL 500.3173a “unambiguously establishes that the only scienter requirement is mere knowledge that the statement contains false information concerning a fact or thing material to the claim[.]” Bakeman v Citizens Ins Co of the Midwest, 344 Mich App 66 , 74; 998 NW2d 743 (2022) (quotation marks and citation omitted).7 “A statement is material if it

2025We granted oral argument on the application to consider (1) whether the offense of being a prisoner in possession of a controlled substance (“PPCS”), MCL 800.281(4), is a strict liability offense or should be construed as having a scienter requirement or mens rea element, see MCL 8.9; People v Ramsdell, 230 Mich App 386 (1998); People v Tombs, 472 Mich 446 [; 697 NW2d 494 ] (2005); and People v Magnant, 508 Mich 151 [; 973 NW2d 60 ] (2021); and (2) if PPCS is not a strict liability offense, then what form of scienter requirement or mens rea element applies. [People v Tadgerson, 513 Mich 1119 ,

2023The gravamen of defendant’s argument is that although this Court in People v Ramsdell, 230 Mich App 386 ; 585 NW2d 1 (1998), held that PPCS under MCL 800.281(4) is a strict-liability offense, it should now be construed as having a scienter requirement or mens rea element pursuant to Michigan Supreme Court precedent issued after Ramsdell and in light of MCL 8.9, which was enacted under 2015 PA 250 after Ramsdell was released.

2017In this case, MCL 750.136b(5) includes a scienter requirement, i.e., that the physical harm either be caused “knowingly or intentionally” or be the result of a knowing or intentional act that poses an unreasonable risk of harm or injury; the scienter requirement “alleviate[s] vagueness concerns.” See Carhart, 550 US at 149 .

2017In this case, MCL 750.136b(5) includes a scienter requirement, i.e., that the physical harm either be caused “knowingly or intentionally” or be the result of a knowing or intentional act that poses an unreasonable risk of harm or injury; the scienter requirement “alleviate[s] vagueness concerns.” See Carhart, 550 US at 149 .

2017The existence of good faith is normally a question of fact for the jury . . . .”); Boyer v Tucker & Baumgardner Corp, 143 Mich App 361, 366 ; 372 N.W.2d 555 (1985) (courts should be reluctant to grant summary disposition “in a case . . . which involves a state of mind”); Tumbarella v The Kroger Co, 85 Mich App 482, 492 ; 271 NW2d 284 (1978) (“In cases involving questions of intent, credibility or state of mind, summary judgement is hardly ever appropriate.”); Michigan Nat Bank-Oakland v Wheeling, 165 Mich App 738 , 744– 745, 419 N.W.2d 746 (1988); Rosenberg v Rosenberg Bros Special Account, 13

2017The existence of good faith is normally a question of fact for the jury . . . .”); Boyer v Tucker & Baumgardner Corp, 143 Mich App 361, 366 ; 372 N.W.2d 555 (1985) (courts should be reluctant to grant summary disposition “in a case . . . which involves a state of mind”); Tumbarella v The Kroger Co, 85 Mich App 482, 492 ; 271 NW2d 284 (1978) (“In cases involving questions of intent, credibility or state of mind, summary judgement is hardly ever appropriate.”); Michigan Nat Bank-Oakland v Wheeling, 165 Mich App 738 , 744– 745, 419 N.W.2d 746 (1988); Rosenberg v Rosenberg Bros Special Account, 13

2017The existence of good faith is normally a question of fact for the jury . . . .”); Boyer v Tucker & Baumgardner Corp, 143 Mich App 361, 366 ; 372 N.W.2d 555 (1985) (courts should be reluctant to grant summary disposition “in a case . . . which involves a state of mind”); Tumbarella v The Kroger Co, 85 Mich App 482, 492 ; 271 NW2d 284 (1978) (“In cases involving questions of intent, credibility or state of mind, summary judgement is hardly ever appropriate.”); Michigan Nat Bank-Oakland v Wheeling, 165 Mich App 738 , 744– 745, 419 N.W.2d 746 (1988); Rosenberg v Rosenberg Bros Special Account, 13

2017The existence of good faith is normally a question of fact for the jury . . . .”); Boyer v Tucker & Baumgardner Corp, 143 Mich App 361, 366 ; 372 N.W.2d 555 (1985) (courts should be reluctant to grant summary disposition “in a case . . . which involves a state of mind”); Tumbarella v The Kroger Co, 85 Mich App 482, 492 ; 271 NW2d 284 (1978) (“In cases involving questions of intent, credibility or state of mind, summary judgement is hardly ever appropriate.”); Michigan Nat Bank-Oakland v Wheeling, 165 Mich App 738 , 744– 745, 419 N.W.2d 746 (1988); Rosenberg v Rosenberg Bros Special Account, 13

2017The existence of good faith is normally a question of fact for the jury . . . .”); Boyer v Tucker & Baumgardner Corp, 143 Mich App 361, 366 ; 372 N.W.2d 555 (1985) (courts should be reluctant to grant summary disposition “in a case . . . which involves a state of mind”); Tumbarella v The Kroger Co, 85 Mich App 482, 492 ; 271 NW2d 284 (1978) (“In cases involving questions of intent, credibility or state of mind, summary judgement is hardly ever appropriate.”); Michigan Nat Bank-Oakland v Wheeling, 165 Mich App 738 , 744– 745, 419 N.W.2d 746 (1988); Rosenberg v Rosenberg Bros Special Account, 13

2017The existence of good faith is normally a question of fact for the jury . . . .”); Boyer v Tucker & Baumgardner Corp, 143 Mich App 361, 366 ; 372 N.W.2d 555 (1985) (courts should be reluctant to grant summary disposition “in a case . . . which involves a state of mind”); Tumbarella v The Kroger Co, 85 Mich App 482, 492 ; 271 NW2d 284 (1978) (“In cases involving questions of intent, credibility or state of mind, summary judgement is hardly ever appropriate.”); Michigan Nat Bank-Oakland v Wheeling, 165 Mich App 738 , 744– 745, 419 N.W.2d 746 (1988); Rosenberg v Rosenberg Bros Special Account, 13

2017The existence of good faith is normally a question of fact for the jury . . . .”); Boyer v Tucker & Baumgardner Corp, 143 Mich App 361, 366 ; 372 N.W.2d 555 (1985) (courts should be reluctant to grant summary disposition “in a case . . . which involves a state of mind”); Tumbarella v The Kroger Co, 85 Mich App 482, 492 ; 271 NW2d 284 (1978) (“In cases involving questions of intent, credibility or state of mind, summary judgement is hardly ever appropriate.”); Michigan Nat Bank-Oakland v Wheeling, 165 Mich App 738 , 744– 745, 419 N.W.2d 746 (1988); Rosenberg v Rosenberg Bros Special Account, 13

2017The existence of good faith is normally a question of fact for the jury . . . .”); Boyer v Tucker & Baumgardner Corp, 143 Mich App 361, 366 ; 372 N.W.2d 555 (1985) (courts should be reluctant to grant summary disposition “in a case . . . which involves a state of mind”); Tumbarella v The Kroger Co, 85 Mich App 482, 492 ; 271 NW2d 284 (1978) (“In cases involving questions of intent, credibility or state of mind, summary judgement is hardly ever appropriate.”); Michigan Nat Bank-Oakland v Wheeling, 165 Mich App 738 , 744– 745, 419 N.W.2d 746 (1988); Rosenberg v Rosenberg Bros Special Account, 13

2025Further, (4) the person must have known that the statement contained false information, and (5) the statement concerned a fact or thing material to the claim. [Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772, 779-780 ; 910 NW2d 666 (2017).] MCL 500.3173a “unambiguously establishes that the only scienter requirement is mere knowledge that the statement contains false information concerning a fact or thing material to the claim[.]” Bakeman v Citizens Ins Co of the Midwest, 344 Mich App 66 , 74; 998 NW2d 743 (2022) (quotation marks and citation omitted).7 “A statement is material if it

2025Therefore, the innocent misrepresentation rule eliminates the scienter requirement of fraud, but it adds “the requirements that the misrepresentation be made in connection with making a contract -13- and the injury suffered by the victim must inure to the benefit of the misrepresenter.” Titan Ins Co, 491 Mich at 556 n 5 (quotation marks, citation, and alterations omitted).

2025“Because fraud must be pleaded with particularity, and is not to be lightly presumed, but must be clearly proved, by clear, satisfactory and convincing evidence, trial courts should ensure that these standards are clearly satisfied with regard to all of the elements of a fraud claim.” Cooper v Auto Club Ins Ass’n, 481 Mich 399, 414 ; 751 NW2d 443 (2008) (quotation marks and citations omitted).

2025“Because fraud must be pleaded with particularity, and is not to be lightly presumed, but must be clearly proved, by clear, satisfactory and convincing evidence, trial courts should ensure that these standards are clearly satisfied with regard to all of the elements of a fraud claim.” Cooper v Auto Club Ins Ass’n, 481 Mich 399, 414 ; 751 NW2d 443 (2008) (quotation marks and citations omitted).

2025We granted oral argument on the application to consider (1) whether the offense of being a prisoner in possession of a controlled substance (“PPCS”), MCL 800.281(4), is a strict liability offense or should be construed as having a scienter requirement or mens rea element, see MCL 8.9; People v Ramsdell, 230 Mich App 386 (1998); People v Tombs, 472 Mich 446 [; 697 NW2d 494 ] (2005); and People v Magnant, 508 Mich 151 [; 973 NW2d 60 ] (2021); and (2) if PPCS is not a strict liability offense, then what form of scienter requirement or mens rea element applies. [People v Tadgerson, 513 Mich 1119 ,

2025We granted oral argument on the application to consider (1) whether the offense of being a prisoner in possession of a controlled substance (“PPCS”), MCL 800.281(4), is a strict liability offense or should be construed as having a scienter requirement or mens rea element, see MCL 8.9; People v Ramsdell, 230 Mich App 386 (1998); People v Tombs, 472 Mich 446 [; 697 NW2d 494 ] (2005); and People v Magnant, 508 Mich 151 [; 973 NW2d 60 ] (2021); and (2) if PPCS is not a strict liability offense, then what form of scienter requirement or mens rea element applies. [People v Tadgerson, 513 Mich 1119 ,

2023Regarding the plaintiff’s “intent” argument, this Court held that MCL 500.3173a(4) “unambiguously establishes that the only scienter requirement is mere knowledge ‘that the statement contains false information concerning a fact or thing material to the claim.’ ” Id. at ___; slip op at 4.

2022Tryc v Mich Veterans’ Facility, 451 Mich 129, 135-136 ; 545 NW2d 642 (1996); see also Candler, 321 Mich App at 780 n 6.

2022Tryc v Mich Veterans’ Facility, 451 Mich 129, 135-136 ; 545 NW2d 642 (1996); see also Candler, 321 Mich App at 780 n 6.

2021Thus, we are not only free to consider whether the Legislature has changed the state of the law, we are obligated to do so. “[A] change in the language of a prior statute presumably connotes a change in meaning,” unless the change is merely “stylistic or nonsubstantive.” People v Arnold, 502 Mich 438, 479 ; 918 NW2d 164 (2018). 2014 PA 489 made substantive changes to MCL 500.3113(a), eliminating the Safe Harbor provision, and imposing instead a scienter requirement.10 Under the Safe Harbor provision, a person was not disqualified from eligibility for benefits so long as the person had a reason

2021Thus, we are not only free to consider whether the Legislature has changed the state of the law, we are obligated to do so. “[A] change in the language of a prior statute presumably connotes a change in meaning,” unless the change is merely “stylistic or nonsubstantive.” People v Arnold, 502 Mich 438, 479 ; 918 NW2d 164 (2018). 2014 PA 489 made substantive changes to MCL 500.3113(a), eliminating the Safe Harbor provision, and imposing instead a scienter requirement.10 Under the Safe Harbor provision, a person was not disqualified from eligibility for benefits so long as the person had a reason

2021Thus, “any person who takes a vehicle contrary to a provision of the Michigan Penal Code—including MCL 750.413 and MCL 750.414, informally known as the ‘joyriding’ statutes—has taken the vehicle unlawfully within the meaning of MCL 500.3113(a).” Rambin v Allstate Insurance Co, 492 Mich 503, 537 ; 821 N.W.2d 117 (2014). “[F]or purposes of MCL 500.3113(a), a vehicle is ‘unlawfully taken’ if it is taken without the authority of its owner,’ ” Spectrum Health, 492 Mich at 518 n 25, and thus “requires a threshold determination that a vehicle was ‘unlawfully taken’ from its owner.” Id.

2021Thus, “any person who takes a vehicle contrary to a provision of the Michigan Penal Code—including MCL 750.413 and MCL 750.414, informally known as the ‘joyriding’ statutes—has taken the vehicle unlawfully within the meaning of MCL 500.3113(a).” Rambin v Allstate Insurance Co, 492 Mich 503, 537 ; 821 N.W.2d 117 (2014). “[F]or purposes of MCL 500.3113(a), a vehicle is ‘unlawfully taken’ if it is taken without the authority of its owner,’ ” Spectrum Health, 492 Mich at 518 n 25, and thus “requires a threshold determination that a vehicle was ‘unlawfully taken’ from its owner.” Id.

2004Initially, the Court found that 18 USC 2252 was akin to the “common-law offenses against the ‘state, the person, property, or public morals,’ ” X-Citement Video, Inc, supra, at 71, quoting Morissette v United States, 342 US 246, 255 ; 72 S Ct 240 ; 96 L Ed 288 (1952), “that presume a scienter requirement in the *214 absence of express contrary intent.” X-Citement Video, Inc, supra at 71-72.

2004Initially, the Court found that 18 USC 2252 was akin to the “common-law offenses against the ‘state, the person, property, or public morals,’ ” X-Citement Video, Inc, supra, at 71, quoting Morissette v United States, 342 US 246, 255 ; 72 S Ct 240 ; 96 L Ed 288 (1952), “that presume a scienter requirement in the *214 absence of express contrary intent.” X-Citement Video, Inc, supra at 71-72.

2001Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute was said to be little more than "`a trap for those who act in good faith.'"% Id., p. 395, 99 S.Ct. 675 quoting United States v. Ragen, 314 U.S. 513, 524 , 62 S.Ct. 374 , 86 L.Ed. 383 (1942).

2001Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute was said to be little more than "`a trap for those who act in good faith.'"% Id., p. 395, 99 S.Ct. 675 quoting United States v. Ragen, 314 U.S. 513, 524 , 62 S.Ct. 374 , 86 L.Ed. 383 (1942).

2001Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute was said to be little more than "`a trap for those who act in good faith.'"% Id., p. 395, 99 S.Ct. 675 quoting United States v. Ragen, 314 U.S. 513, 524 , 62 S.Ct. 374 , 86 L.Ed. 383 (1942).

1998This is the statute that deals with possession of controlled substances generally and, as in effect at the time of the Hunten decision and as currently in effect, it contains the “knowingly or intentionally” language referred to above 2 Although the discussion of scienter in Vaughn, supra, evolved from a similar discussion in Hunten , the Hunten Court construed a statute that specifically contained a scienter requirement.

1997Id. at 33 .