Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Smith

Supreme Court of Michigan

September 11, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
VIRGIL SMITH, Defendant-Appellee. COA 332288

         Wayne CC: 15-005228-FH

          Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder, Justices

          ORDER

         On order of the Court, the motion for immediate consideration is DENIED. No party is requesting an order to remove the defendant from the ballot, nor could we enter such an order since the relevant election official is not a party to this case. Therefore, we are not persuaded that this case requires expedited consideration. The application for leave to appeal the August 22, 2017 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other action. MCR 7.305(H)(1). The parties shall file supplemental briefs within 42 days of the date of this order addressing, among other issues: (1) whether a prosecutor's inclusion of a provision in a plea agreement that prohibits a defendant from holding public office violates the separation of powers, see Const 1963, art 3, § 2; see also United States v Richmond, 550 F.Supp. 605 (ED NY, 1982), or is void as against public policy, Davies v Grossmont Union High Sch Dist, 930 F.2d 1390, 1392-1393 (CA 9, 1991); (2) whether the validity of the provision requiring the defendant to resign from public office was properly before the Court of Appeals since the defendant resigned from the Michigan Senate after the Wayne Circuit Court had struck that part of the plea agreement and, if so, whether it violates the separation of powers or is void as against public policy; and (3) whether the trial court abused its discretion by voiding terms of the plea agreement without affording the prosecutor an opportunity to withdraw from the agreement, see People v Siebert, 450 Mich. 500, 504 (1995). The parties should not submit mere restatements of their application papers.

         Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

          McCormack, Viviano, Bernstein, and Larsen, JJ. (concurring).

         We write to explain why, in our view, the prosecutor's motion for immediate consideration is properly denied.

         MCR 7.311(E), which governs motions for immediate consideration or to expedite proceedings, requires that "[t]he motion or an accompanying affidavit . . . explain why immediate consideration of the motion or expedited scheduling of the proceeding is necessary."

         In her first motion for immediate consideration, filed on August 10, 2017, the prosecutor asserted as follows:

A decision from this Court is necessary by August 22, 2017, so that defendant may make an informed decision whether he will continue to run for office and, if he chooses to run, the voters casting ballots will be aware whether defendant will be violating the plea agreement if elected and that a special election would be necessary in the event defendant resigns or is removed from office.

         She repeats this basic argument in her second motion for immediate consideration, which is presently before the Court.[1] Although we were initially taken by this argument, upon closer examination and for the reasons that follow, it is entirely without merit.[2]

         The obvious implication of the prosecutor's initial assertion that a decision was "necessary by August 22, 2017, " was that a final decision on the issues raised in the prosecutor's application was needed from this Court before the deadline for the printing of the ballots.[3] We accepted this representation at face value, and we ordered expedited consideration as on reconsideration granted by the Court of Appeals. People v Smith, ___Mich ___; 899 N.W.2d 407 (2017). But we got that wrong: expedited action was not warranted because no decision from the Court of Appeals, or from this Court today, could affect whether defendant's name appears on the general-election ballot. No party requests that defendant's name be removed from the ballot, nor could we grant such relief since the relevant election official is not a party to this action (nor could she be).

         We are also unpersuaded that an expedited ruling from this Court is necessary to give defendant an opportunity to "make an informed decision whether he will continue to run for office . . . ." Indeed, it is not entirely clear to us what the prosecution's representation means. However, to the extent the prosecutor is suggesting that an expedited ruling is necessary so that defendant can take some action to have his name removed from the ballot, it is not clear to us how, short of expiring (see MCL 168.326), defendant could accomplish this. Section 3-106 of the Detroit City Charter provides that, except as otherwise provided by the charter or a city ordinance, "state law applies to . . . the filing for office by candidates . . . ." Under MCL 168.322a, the state law governing election to city offices, a candidate for a city office is only permitted to withdraw if he or she files the appropriate notice within 3 days after the filing deadline (here that deadline was April 25, 2017). Thus, it appears the deadline for defendant to withdraw from the race has long since passed. And notably, while the prosecutor's concern that defendant be left with a full range of options is admirable, defendant himself has not expressed a similar concern or made any request for expedited review.

         Next, the prosecutor's concern for the quality of information available to the general-election voters, a concern our colleagues in partial dissent apparently share, rings hollow. As an initial matter, it is not clear to us why, if the prosecutor believes this information is essential to the voters, she did not seek an expedited ruling in advance of the primary election so those voters, too, would have the benefit of it. The only difference now is not the voters' need for information, but that defendant came in second in the primary election and will therefore be on the general-election ballot. Moreover, the prosecutor represented to this Court that the voters need to be aware that "a special election would be necessary in the event defendant resigns or is removed from office." But that, like the ballot-access issue, seems to be a red herring since it appears that no special election would occur if defendant were to win the election, and were then to resign or be removed from his seat. Instead, under Section 3-105 of the Detroit City Charter, a replacement would be appointed by a vote of the Detroit City Council, and the election to fill the vacant position would occur at the next general election that is more than 180 days after the vacancy occurs.[4]

         That leaves only the prosecutor's assertion that an expedited ruling from this Court is necessary so that "the voters casting ballots will be aware whether defendant will be violating the plea agreement if elected . . . ." However, we are not aware of any precedent for the notion that a court should expedite a ruling for such a purpose.[5] We are hesitant to conclude that courts and prosecutors should concern themselves with the quality or quantity of information available to voters, outside of enforcing the election laws and any attendant constitutional concerns. But even if such were our proper concern, it is not clear to us what information an expedited decision in this case would provide, beyond that which is already available to the voters, i.e., that this case might affect defendant's ability to complete his term. Even if we were to grant immediate consideration, peremptorily reverse the Court of Appeals, and hold that the plea agreement does not violate the Constitution or public policy, it is far from clear that the trial judge would be under any obligation to accept the plea agreement. Judges have wide discretion to reject any sentencing agreement, including this one. See People v Siebert, 450 Mich. 500, 509 (1995) (opinion by Boyle, J.) ("In the context of plea and sentence agreements, the court's interest in imposing a just sentence is protected by its right to reject any agreement, except that which invades the prosecutor's charging authority."). We would also need to consider whether to direct the trial court on remand to consider the dissenting Court of Appeals judge's assertion that the trial court failed to comply ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.