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People v. Smith

Supreme Court of Michigan

July 26, 2018

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

          Argued on application for leave to appeal January 11, 2018.

          Chief Justice: Stephen J. Markman, Justices: Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Kurtis T. Wilder, Elizabeth T. Clement

         State Senator Virgil Smith pleaded guilty in the Wayne Circuit Court to malicious destruction of property, MCL 750.377a(1)(a)(i). Smith's plea agreement included the dismissal of three charges against him-domestic violence, MCL 750.81(2); felonious assault, MCL 750.82; and carrying a firearm during the commission of a felony, MCL 750.227b. Smith was sentenced to a 10-month jail term and 5 years of probation. As part of the plea agreement, Smith agreed to resign from his Senate seat and to refrain from running for public office during his 5-year probationary period. At sentencing, the court, Lawrence S. Talon, J., sua sponte declared that the parts of the plea agreement requiring Smith to resign from office and to refrain from seeking public office during his probationary period were void because they offended Michigan's constitutional separation of powers, infringed the public's right to elect the representatives of their choice, were contrary to public policy, and compromised the integrity of the court. In all other respects, the court approved the plea agreement and sentenced Smith as previously indicated. The prosecutor moved to vacate Smith's plea, arguing that she was entitled to withdraw from the plea agreement if the trial court would not approve it in its entirety. The court denied the prosecutor's motion, concluding that allowing the prosecutor to renegotiate the plea agreement would harm the interests of justice. The prosecutor appealed. The Court of Appeals, Riordan, P.J., and Fort Hood and Servitto, JJ., initially dismissed the appeal as moot in an unpublished per curiam opinion issued April 18, 2017 (Docket No. 332288), because defendant had voluntarily resigned his seat and appeared to have no intention of running for public office during his term of probation. Shortly after this opinion was issued, defendant filed petitions to run for a seat on the Detroit City Council. In response, the prosecutor moved for reconsideration. After a majority of the Court of Appeals panel voted to deny the motion, the prosecutor appealed in the Supreme Court, which remanded the case to the Court of Appeals for consideration as on reconsideration granted. 501 Mich. 851 (2017). On remand, the Court of Appeals, Servitto and M. J. Kelly, JJ. (Riordan, P.J., dissenting), affirmed, holding that the resignation and bar-to-office provisions violated the constitutional separation of powers and that the plea agreement infringed the right of defendant's constituents to determine whether defendant was qualified to hold the office. The Court also held that the trial court had not abused its discretion by denying the prosecutor's motion to vacate the plea. The prosecutor appealed. The Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 852 (2017).

         In an opinion by Justice Viviano, joined by Justices McCormack and Bernstein, and an opinion by Justice Clement, the Supreme Court held:

         The provision of the plea agreement that barred defendant from holding office was void as against public policy. The trial court abused its discretion by not permitting the prosecutor to withdraw from the plea agreement after determining that some of its provisions were void. The question regarding the validity of the resignation provision was moot and therefore was not reached. The part of the Court of Appeals judgment holding that the resignation provision in the plea agreement was invalid was vacated as moot.

         Court of Appeals' judgment affirmed in part and reversed in part; case remanded to the trial court for further proceedings.

         Justice Viviano held that the resignation provision in the plea deal was moot because, given that defendant's resignation had already taken effect and could not be retracted, any judgment on the matter would lack practical legal effect and the parties failed to show that the issue was likely to evade review, which justified vacating the part of the Court of Appeals judgment addressing that issue. Justice Viviano concluded that it was unnecessary to reach the question whether the bar-to-office provision of the plea agreement violated the constitutional separation of powers because the matter could be resolved on nonconstitutional grounds, specifically, that the provision was unenforceable as a matter of public policy. He also held that the trial court had erred by voiding terms of the plea deal without permitting the prosecutor to withdraw from the agreement under People v Siebert, 450 Mich. 500 (1995), stating that when a court rejects either the sentence in a plea agreement or an agreement term like a bar-to-office provision, while keeping the rest of the agreement, the trial court essentially imposes a different plea bargain on the prosecutor than he or she agreed to, thereby infringing the prosecutor's charging discretion. Justice Viviano also expressed the view that the test for determining whether the plea agreement violated public policy should be that set forth in Town of Newton v Rumery, 480 U.S. 386 (1987), under which a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement, and he concluded that the bar-to-office provision in this case failed that test.

         Justice Clement, concurring in part and concurring in the judgment in part, agreed that the Court of Appeals' evaluation of the resignation provision should be vacated because the provision's validity was moot by the time the issue came before that Court and that the bar-to-office provision was invalid as a matter of public policy; however, she disagreed that the applicable test in this case was the one set forth in Rumery, which involved a release-dismissal agreement rather than a plea agreement. She would instead have relied on the common law of contracts to conclude that defendant was prohibited from bargaining away his ability to run for office in exchange for less-punitive criminal charges because agreements impairing elections are void as against public policy. Justice Clement agreed that the trial court violated Siebert by not allowing the prosecutor to withdraw from the agreement in contravention of the separation of powers, and she therefore concurred in the remand for further proceedings consistent with the Court's judgment.

         Chief Justice Markman, joined by Justices Zahra and Wilder, concurring in part and dissenting in part, agreed that the Court of Appeals had erred by addressing the validity of the resignation obligation of the agreement because that issue was rendered moot by the fact that defendant had already resigned, and he further agreed with vacating that part of the Court of Appeals judgment. However, he disagreed that the bar-to-office obligation of the agreement was invalid, noting that defendant had entered into it voluntarily as an alternative to a criminal conviction that threatened as a practical matter to bar him from holding legislative office for longer than the provision in the plea agreement would have. He stated that the bar-to-office obligation did not violate the separation-of-powers principle because it did not add a qualification for office or infringe the power of a branch of government to determine the qualifications of its own members. He further stated that defendant had failed to show that the bar-to-office obligation was void as against public policy and that the preponderance of public policy actually weighed in favor of upholding that obligation. Chief Justice Markman would have reversed the Court of Appeals to the extent that it ruled that the bar-to-office obligation was invalid and remanded the case to the trial court for further proceedings.

         BEFORE THE ENTIRE BENCH

          OPINION

          VIVIANO, J.

         As part of defendant's plea deal, he agreed to resign his position as a state senator and not seek public office during his five-year probationary term. After reviewing the agreement, the trial court determined that these terms violated the separation-of-powers doctrine and public policy. It struck down the terms but, over the prosecutor's objection, enforced the rest of the plea deal. The Court of Appeals affirmed. We took this case to decide whether the resignation and bar-to-office provisions of the plea deal were enforceable, and if not, whether the trial court erred by refusing to allow the prosecutor to withdraw from the deal. We hold that: (1) the question regarding the resignation provision is now moot and we therefore decline to reach it and instead vacate the Court of Appeals' discussion of that issue, (2) the bar-to-office provision is unenforceable as against public policy, and (3) the trial court erred by not permitting the prosecutor to withdraw from the plea agreement under People v Siebert.[1] We would have further held that the validity of the bar-to-office provision must be assessed under the balancing test in Town of Newton v Rumery.[2]

         I. FACTS AND PROCEDURAL HISTORY

         While serving as a state senator, in May 2015, defendant fired his rifle at his ex-wife's car and into the air in her presence. He was charged with felonious assault, MCL 750.82; domestic violence, MCL 750.81; malicious destruction of personal property (worth $20, 000 or more), MCL 750.377a; and felony-firearm, MCL 750.227b. In February 2016 he entered into a plea agreement that required him to plead guilty to malicious destruction of property in exchange for dismissal of the other charges. The plea agreement included a sentence agreement to a sentence of 10 months in the Wayne County Jail and 5 years' probation. Defendant also had to comply with various other conditions, including the two at issue here: "Resign position as State Senator" (the resignation provision) and "Cannot hold elective or appointed office during full pendency of probation" (the bar-to-office provision).

         The plea agreement was put on the record, and defendant pleaded guilty. At a sentencing hearing on March 14, 2016, the court sua sponte struck the resignation and bar-to-office provisions but otherwise sentenced defendant in accordance with the plea agreement. In an order, the trial court explained that the struck provisions represented "an unconstitutional interference by the Prosecutor with the legislative branch of government and with the rights of the defendant's constituents." Further, the order stated that the provisions "offend[] the Constitution of the State of Michigan, [are] contrary to public policy and compromise[] the integrity of this court." In all other respects, however, the trial court enforced the plea agreement.

         The prosecution moved to vacate the plea, arguing that defendant had not yet resigned and thus had failed to comply with the plea agreement. The prosecutor further contended that because the court failed to enforce the entire original agreement, the prosecutor was entitled to withdraw from the plea. The trial judge rejected the prosecutor's motion, finding that vacation would not serve the interests of justice.

         Defendant resigned his position as a state senator on April 12, 2016. In an opinion issued on April 18, 2017, the Court of Appeals dismissed the appeal as moot because Smith had voluntarily resigned and expressed no intention of running for office during his probation period.[3] The same day the Court of Appeals issued its opinion, defendant submitted petitions to run for Detroit City Council. He came in second place in the August 2017 primary, but he lost the general election in November.

         Before the general election, the prosecutor sought leave to appeal in this Court, contending that the case represented an election-related emergency. We remanded to the Court of Appeals, [4] which affirmed the trial court in an opinion issued August 22, 2017.[5]The Court held that the resignation and bar-to-office provisions were unconstitutional violations of the separation-of-powers doctrine, because only the Legislature could expel its members.[6] Further, the plea agreement "invaded the right of defendant's constituents to 'decide upon his moral and other qualifications' when defendant's crimes did not specifically disqualify him" under pertinent constitutional provisions.[7] The Court also held that the trial court did not abuse its discretion by denying the prosecution's motion to vacate the plea because defendant had fulfilled many of the terms of the plea deal and therefore the prosecution should not be allowed a second opportunity to negotiate.[8]Judge Riordan dissented, finding no violation of the separation-of-powers doctrine and asserting that the trial court had abused its discretion by not allowing the prosecutor's withdrawal from the plea agreement.[9]

         The prosecutor again appealed, and we ordered oral argument on whether to grant the application, directing the parties to brief:

(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).[10]

         II. STANDARD OF REVIEW

         Questions of law are reviewed de novo.[11] Trial court decisions regarding motions to vacate pleas are reviewed for an abuse of discretion.[12]

         III. ANALYSIS

         A. THE RESIGNATION PROVISION

         The first issue is whether the resignation provision in the plea deal is moot. "It is well established that a court will not decide moot issues."[13] A dispute is moot if no controversy exists and any judgment on the matter would lack practical legal effect.[14] Courts will not entertain such abstract issues unless they are "of public significance" and are "likely to recur, yet may evade judicial review."[15] Here, defendant's resignation has already taken effect and cannot be retracted. If we were to strike the provision, our decision on the issue would lack practical legal effect.

         The parties have failed to show that this issue is likely to evade review. The trial court struck the resignation provision from the plea deal before defendant voluntarily decided to resign from office. If defendant had not resigned from office, then the Court of Appeals could have properly reviewed the validity of the resignation provision. Consequently, we hold that the issue is moot and we will not address it. In addition, we vacate as moot that part of the Court of Appeals' judgment holding the resignation provision to be invalid.

         B. THE BAR-TO-OFFICE PROVISION

         The second issue is whether the bar-to-office provision violates the separation-of-powers doctrine or is void as against public policy. Since we generally avoid constitutional decisions if nonconstitutional grounds can resolve a case, [16] we begin with public policy.

         "Although the analogy may not hold in all respects, plea bargains are essentially contracts" and can be subject to the same rules and principles governing contracts.[17] One such rule is that contracts contravening public policy are void and unenforceable.[18]Public policy can be found "in our state and federal constitutions, our statutes, and the common law," among other sources.[19] "Plea agreements are subject to the public policy constraints that bear upon the enforcement of other kinds of contracts."[20]

         1. RUMERY'S BALANCING TEST

         The United States Supreme Court has provided a framework for assessing whether certain agreements between prosecutors or government officials and criminal defendants violate public policy. In Town of Newton v Rumery, the Court explained the "well established" balancing test under which "a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement."[21] That case involved a release-dismissal agreement whereby the prosecutor agreed to drop all charges against a criminal defendant in exchange for a waiver by the defendant of his right to pursue any statutory causes of action against the town or its officials.[22] The criminal defendant then instituted a civil suit alleging that the agreement violated public policy.[23] To determine whether that agreement could stand, the Court held that the above balancing test applied; accordingly, the opinion examined whether the interests in enforcing the agreement were outweighed by public policy concerns.[24]

         Rumery's balancing test was applied to a bar-to-office provision in Davies v Grossmont Union High Sch Dist.[25] There, the plaintiff had previously settled a civil rights complaint against the defendants, including a school district, in part by agreeing not to run for the district's school board.[26] The plaintiff subsequently ran for and won a board position. The United States Court of Appeals for the Ninth Circuit examined whether the provision was unenforceable as a matter of public policy. The court treated the provision as a waiver of rights and looked to Rumery's balancing test to resolve the case.[27] The court determined that the interests favoring nonenforcement, which included the electorate's right to vote, outweighed the interest in enforcement, which included the settlement of litigation and the protection of voters.[28]

         We believe Rumery and Davies point the way forward in this case. It is true that we are not dealing with a release-dismissal agreement.[29] The prosecutor here has not cut a deal to shield a municipality or its officials from liability, and the bar-to-office provision is ostensibly for the public's good, not the prosecutor's private gain. But the interests at stake in the present case are materially similar to those in Rumery and Davies. Prosecutors have broad charging discretion.[30] For this reason, prosecutors are obliged to fulfill the functions of their office without regard to political considerations.[31] Giving prosecutors unfettered discretion to decide which defendants should be excluded from office would allow political considerations to enter into the prosecutor's charging calculus.[32]

         Regardless of the prosecutor's motivations, a plea bargain that prevents an individual from holding public office has the same effect as a release-dismissal agreement that bars an individual from office. In each case, the democratic process is affected in ways that may have nothing to do with the voters' assessment of, or ability to assess, a candidate's fitness for office. As such, we conclude that the Rumery framework should apply to bar-to-office provisions in plea bargains.[33]

         2. PUBLIC POLICIES FAVORING NONENFORCEMENT

         This case, like Davies, "involves the most important political right in a democratic system of government: the right of the people to elect representatives of their own choosing to public office."[34] When the government limits voters' options, the constitutional rights to vote and associate are implicated.[35] As the United States Supreme Court has observed in a somewhat different context, "the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters."[36] The voters' rights are thus burdened by the exclusion of candidates from office.[37] Schemes that affect the "selection and eligibility of candidates . . . inevitably affect[]-at least to some degree-the individual's right to vote and his right to associate with others for political ends."[38] The practical effect of enforcing a bar on a willing individual's ability to run is "a limitation on the fundamental right to vote . . . ."[39] "[T]he source of the qualification" on eligibility for office "is of little moment in assessing the qualification's restrictive impact."[40]

         These basic principles, and many related ones, permeate our law. To begin, our Constitution provides that "[a]ll political power is inherent in the people."[41] "[T]he right to vote is an implicit 'fundamental political right' that is 'preservative of all rights.' "[42]The right can be regulated, but not impaired, [43] and neither the judiciary nor the Legislature can construct arbitrary exclusions from holding office.[44] In Speed v Common Council of Detroit, we noted that absent laws regulating eligibility for office, "[t]here is no restriction upon the power of the people to elect, or the appointing power to appoint, any citizen to office, notwithstanding his previous character, habits, or official misconduct."[45]

         Moreover, we believe that public offices should not be treated like private property. As Davies observed, "To treat political rights as economic commodities corrupts the political process."[46] Such treatment fundamentally misunderstands the nature of public office: the law has long been clear that there is no property interest in holding public office.[47] As we have stated, "A public office cannot be called 'property,' within the meaning of" various constitutional provisions protecting property interests, including the Due Process Clause.[48] Instead, "[p]ublic offices are created for the purposes of government. They are delegations of portions of the sovereign power for the welfare of the public. They are not the subjects of contract, but they are agencies for the State . . . ."[49] Thus, public offices cannot be commoditized for the personal benefit of the officeholder or aspiring officeholder.

         To enforce these important public policies, courts have closely reviewed deals made by public officials or candidates for office. As we have noted, a contract made by a public officer has been held to be void as against public policy" 'if it interferes with the unbiased discharge of [the officer's] duty to the public . . ., or even if it has a tendency to induce him to violate such duty[.]' "[50] Our election laws broaden this policy by making it a misdemeanor to, among other things, "solicit any valuable consideration from a candidate for nomination for, or election to, an office described in this act."[51] The definition of "valuable consideration"-including, among other things, property, money, prizes, offices, and the like-is sweeping, preventing many types of promises that could be extracted from candidates for public office.[52] The statute thus displays the law's hostility to a broad range of deal-making with regard to public office, even by mere candidates and even for noneconomic consideration.

         In a similar vein, the common law has long held that agreements impairing elections are void as against public policy.[53] The reason for this rule was that "[p]ublic offices are public trusts, and should be conferred solely upon considerations of ability, integrity, fidelity and fitness for the position."[54] On this basis, agreements procuring a candidate's withdrawal from the pursuit of public office have been found void as against public policy.[55] That is, an agreement not to run for office is unenforceable. It is true that many of these cases involved the exchange of money for the candidate's withdrawal or involved candidates who had been officially nominated.[56] Nonetheless, they were also undergirded by concerns for the electoral process and voting rights. As one court stated, such an agreement "is against public policy because it affects the integrity of the elective franchise and puts it in the power of a corrupt person to defeat the will of the people . . . ."[57]

         Thus, various policies weigh in favor of nonenforcement, including the effect the agreement has on voters' rights and the potential for treating public office as private property.

         3. PUBLIC POLICIES FAVORING ENFORCEMENT

         Turning to the policies favoring enforcement, we begin by noting that prosecutors have broad charging discretion when pursuing their cases.[58] And "plea bargaining [is] 'an essential component of the administration of justice'."[59] Consequently, at a general level, public policy supports the plea-bargaining process.[60] But these interests are not without limits. A prosecutor has no interest in "enter[ing] into plea agreements at any expense" and regardless of whether the agreement serves the ends of justice.[61] Likewise, a prosecutor may not abuse his or her charging discretion by exercising it in an arbitrary manner.[62] The prosecutor here also notes that the "public expects lawmakers to uphold the laws, and it is appropriate to punish lawmakers, like other members of the public, when they do not." Additionally, the prosecutor and the dissent contend that other defendants can surrender the practice of their professions, and candidates for office should also be able to relinquish their ability to pursue office.

         4. APPLICATION

         Weighing the interests in this case, we conclude that public policy favors nonenforcement of the bar-to-office provision. As in Davies, "the public interest at stake in this case is of the highest order," as it relates to the heart of the democratic process: voting.[63] By restricting the eligibility of defendant to run for office, the bar-to-office provision restricts the foundational right of voters to select their representatives. Further, we disagree with the prosecutor and the dissent that a candidate for office should be treated like any other professional who can, as a bargaining chip, offer to forgo the right to practice his or her profession. The public policies discussed above reject the notion that public office can be commoditized in this fashion for personal gain. Rather, public offices are public trusts. For this reason and the others detailed above, courts have long looked with skepticism on agreements that affect elections for a candidate's personal gain.

         Against these specific and compelling policies, the prosecutor and the dissent offer only generalized interests in the enforcement of the plea agreement.[64] A prosecutor's charging discretion is a background principle that does not entitle a prosecutor to impair elections. Nor does the right to enter plea bargains-or the related need for efficient resolution of criminal prosecutions-justify this bar-to-office provision. In every case, the prosecutor wields charging discretion and can enter plea agreements with the court's approval; to say that tells us nothing about whether the prosecutor should be able to enforce a bar-to-office term in this case. Similarly, the need to punish defendant does not mandate this particular form of punishment, which also impairs the rights of voters by limiting their options. These rationales offered by the prosecutor do not justify the imposition that the bar-to-office provision places on the democratic process.

         Another important consideration in our analysis is whether a logical connection exists between the charged crimes and the bar-to-office provision. Davies, after weighing the interests at stake, inquired whether the government had a "legitimate reason" for the waiver of the plaintiff's right to run for office.[65] According to Davies, a "legitimate reason will almost always include a close nexus-a tight fit-between the specific interest the government seeks to advance in the dispute underlying the litigation involved and the specific right waived."[66] Put differently, "[t]he absence of a close nexus will ordinarily show that the government is seeking the waiver of important rights without a legitimate governmental interest that justifies doing so."[67]

         In this regard, comparison to our state's laws on eligibility for office is instructive, as they too suggest the need for a nexus. The types of crimes that bar an individual from office typically relate to public office. For example, Const 1963, art 4, § 7 provides that "[n]o person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be eligible for either house of the legislature." More broadly, Const 1963, art 11, § 8, renders individuals ineligible for office if "within the immediately preceding 20 years" they have been convicted of certain crimes involving dishonesty and the convictions were "related to the person's official capacity while the person was holding any elective office . . . ."[68]Thus, the law does not exclude every person convicted of a crime from public office- instead, it allows the voters to determine whether commission of crimes unrelated to public office renders a person unfit for public service.

         Here, no "close nexus" exists between the charged offenses and defendant's conduct in office. However egregious defendant's alleged offenses may be, they do not directly relate to the duties and responsibilities of public office-he was not charged with misconduct that was in any manner related to public office. Consequently, the prosecutor can point to no legitimate reason for the bar-to-office provision.[69] Its inclusion in the plea agreement reflects, instead, the prosecutor's own conclusion that defendant should not serve in public office.[70] Our laws do not give prosecutors the unilateral authority to make this determination.

         For these reasons, we agree with both lower courts that the bar-to-office provision in defendant's plea agreement is void as against public policy.[71]

         C. PLEA WITHDRAWAL

         The final issue in this case is whether the trial court erred by voiding terms of the plea deal without permitting the prosecutor to withdraw from the agreement. This question need not detain us long. In People v Siebert, we considered "whether a prosecutor may withdraw from a plea bargain that includes a sentence agreement when the court intends to impose a sentence lower than the agreement calls for."[72] We held that "a prosecutor . . . is entitled to learn that the judge does not intend to impose the agreed-upon sentence . . . and [be] given an opportunity to withdraw from the plea agreement."[73] This conclusion stemmed, in part, from the prosecution's constitutional interest in being entrusted with the authority to charge defendants.[74] If a court could "maintain its acceptance of the plea over the prosecutor's objection, it would effectively assume the prosecutor's constitutional authority to determine the charge or charges a defendant will face."[75]

         In the present case, the trial court did not reject the sentencing provision of the plea agreement, but that fact makes no difference. Siebert instructs that the trial court cannot assume the prosecutor's charging authority by accepting a plea bargain but rejecting its sentencing agreement. In the same way, the trial court cannot seek to enforce a plea bargain except for a bar-to-office provision. When it rejects either the sentence or a plea term like a bar-to-office provision, while keeping the rest of the agreement, the trial court essentially imposes a different plea bargain on the prosecutor than he or she agreed to. In such circumstances, the trial court infringes on the prosecutor's charging discretion. This is impermissible. If the trial court wishes to reject a bar-to-office provision, it must give the prosecutor an opportunity to withdraw from the agreement.

         The trial court here did not provide such an opportunity and in fact denied the prosecutor's motion vacate the plea. The Court of Appeals upheld this decision on the basis that allowing the prosecutor to withdraw would subvert the ends of justice. But neither the Court nor defendant has cited any authority for the proposition that a trial court may unilaterally modify the terms of a plea bargain in order to serve the court's notions of justice.[76] Therefore, we hold that the trial court abused its discretion by refusing to allow the prosecutor to withdraw from the plea agreement.

         IV. CONCLUSION

         In this case, we hold that the bar-to-office provision in defendant's plea agreement is void. We would further hold that when challenged as void against public policy, bar- to-office provisions in plea agreements should be analyzed under the balancing test in Rumery. In the present case, the bar-to-office provision would not survive that test, as the conduct defendant is charged with bears no nexus with his public office. Further, we hold that the trial court erred by voiding the bar-to-office provision but refusing to permit the prosecutor to then withdraw from the plea agreement. Finally, we do not decide whether the resignation provision of the plea agreement is void as against public policy because that question is moot. We thus reverse the Court of Appeals' judgment in part, affirm in part, vacate as moot that part of the Court of Appeals' judgment holding that the resignation provision in the plea agreement was invalid, and remand the case to the trial court for further proceedings consistent with this opinion.

          Clement, J. (concurring in part and concurring in the judgment in part).

         I concur in full with the Court's unanimous conclusion that the Court of Appeals' evaluation of the resignation provision should be vacated because the provision's validity was moot by the time the issue came before that Court. As explained below, however, I concur only in the judgment as to the lead opinion's analysis of the bar-to-office provision's invalidity.[1] Given our shared conclusion that the bar-to-office provision is invalid, I concur in full with the Court's conclusion that the trial court violated the separation of powers, People v Siebert, 450 Mich. 500; 537 N.W.2d 891');">537 N.W.2d 891 (1995), and that this matter must therefore be remanded to the trial court to give the prosecutor an opportunity to withdraw from the plea agreement.

         The lead opinion invalidates the bar-to-office provision of the plea agreement at issue on the basis of the balancing test established in Town of Newton v Rumery, 480 U.S. 386; 107 S.Ct. 1187; 94 L.Ed.2d 405 (1987), rev'g 778 F.2d 66 (CA 1, 1985), which was applied to facts somewhat like the ones here in Davies v Grossmont Union High Sch Dist, 930 F.2d 1390 (CA 9, 1991). But as the lead opinion notes, Rumery and Davies involved release-dismissal agreements, which are different from the instant plea bargain. In Rumery, the prosecutor agreed to dismiss certain charges against a criminal defendant in exchange for the defendant's releasing any claims under 42 USC 1983 he may have had against the municipality stemming from the prosecution. When the criminal defendant filed his § 1983 action anyway, the town raised the release-dismissal agreement as a defense. The United States Court of Appeals for the First Circuit held that such agreements were per se invalid, and the Supreme Court of the United States reversed, instead developing a balancing test to guide the determination of when such agreements could be upheld and concluding that the agreement in Rumery was valid. In Davies, a § 1983 plaintiff's settlement with the defendant school district included an agreement not to run for a seat on the district's board; the United States Court of Appeals for the Ninth Circuit applied the Rumery test and invalidated this provision when the plaintiff later ran for and won a seat on the board.

         I have no specific objection to the Rumery balancing test, but I do not believe it is necessary to decide this case. I believe this case can be more straightforwardly resolved on the basis that the common law of contracts[2] prohibits defendant from bargaining away his ability to run for office for something of value to him: less-punitive criminal charges. As the lead opinion notes, the common law has long held that agreements impairing elections are void as against public policy. I believe this principle, in and of itself, is a complete basis for holding that the plea agreement at issue here was void-defendant could not bargain away his ability to run for public office in exchange for charging considerations and expect to have a court endorse such an exchange.[3] The lead opinion cites several learned treatises, which I believe accurately set out the state of the law on this account.[4] Indeed, it long has been the case that a contract's consideration "must be a thing lawful in itself, or else the contract is void." 2 Blackstone, Commentaries on the Laws of England, p *444. Blackstone also remarked that "it is essential to the very being of Parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited[.]" 1 Blackstone, Commentaries on the Laws of England, p *178. Particularly condemned were efforts by public officials to manipulate their offices for private gain:

[T]he greatest danger is that in which [the legislators] co-operate, by the infamous practice of bribery and corruption. . . . [N]o candidate shall . . . give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected . . . . [Id. at *179.]

         See also 8 Holdsworth, A History of English Law (1925), p 55 (noting that "tolerance of traffic in offices of trust" was "unintelligible" to the law).

         It is, of course, true that few cases deal with this exact set of facts.[5] But I believe Michigan jurisprudence has not hesitated in the past to extend the concept of invalidating contracts that impinge upon elections and public office to new factual scenarios. For example, in Harris v Chamberlain, 126 Mich. 280, 282-283; 85 N.W. 728 (1901), the parties agreed "that $200 should be paid at all events as soon as [the plaintiff] should cause the defendant to be appointed postmaster," an agreement which "was illegal and made the contract wholly void."[6] In support we cited Snyder v Willey, 33 Mich. 483, 493-494 (1876), in which we held that it was a valid defense to a promissory note "that part of the consideration of the note was the suppression of the criminal prosecutions against" the note's issuer. Though Snyder was not precisely the same as Harris, Harris reasonably drew upon and extended Snyder.

         I also do not believe it matters whether the prosecutor was seeking personal advantage in this case.[7] Our precedents focus on prohibiting the risk of wrongful conduct rather than invalidating only those agreements relating to public officers that actually are the product of corruption. For example, in People ex rel Plugger v Overyssel Twp Bd, 11 Mich. 222 (1863), several townships along Lake Michigan voted to borrow money to improve harborage along the lakeshore, with each appointing "freeholders" to decide how to spend the money. The combined group of "freeholders" from the several townships awarded a contract to contractors who were themselves "freeholders" and members of the board. When some townships refused to pay, the contractors sued, but we invalidated the agreement even though there was no indication that the contract awarded was for anything other than the low bid and there were enough votes in favor of the contractors awarded the bid to give it to them even if the member-contractors had abstained from participating in the vote. We elaborated:

Actual injury is not the principle the law proceeds on in holding such transactions void. Fidelity in the agent is what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal. [Id. at 225-226 (opinion by Manning, J.).]
The fact that those contractors did not constitute a majority . . ., I do not regard as in any respect altering the principle, nor the fact that the contract was let to the lowest bidder. The price alone is but one element embraced in the question, and even this might be affected by their influence, by fixing time and place of the letting, by their right to decide upon the responsibility of the bidders, and by many other circumstances, over which, as members of the board, they might exercise an influence. . . . [I]t is manifestly impossible, from the nature of the case, to ascertain and measure the amount of their influence upon the board . . . .
And though these contractors may, as members of the board, have acted honestly, and solely with reference to the public interest, yet, if they have acted otherwise, they occupy a position which puts it in their power to conceal the evidence of the facts, and to defy detection. [Id. at 227-228 (opinion by Christiancy, J.)].[8]

         Consequently, I am unpersuaded by the dissent's concern that this "would undermine the effective prosecution and punishment of public corruption." This sort of practical concern seems much the same as the Plugger dissent's observation that "[w]orks of enterprise" "in small and new townships" "cannot usually find many bidders," meaning that "forbidding such contracts [as were at issue] would be equivalent to shutting the best men out from office." Id. at 231 (opinion by Campbell, J.). I am as unmoved as the Plugger majority was. Much of our law undermines effective prosecution in one way or another in furtherance of other goods; prophylactically reducing the risk of political figures trading their status for some measure of impunity from the complete consequences of their criminal acts is one such good, just as reducing the risk of manipulating the bidding process justified invalidating the contract in Plugger even when it could not be shown that the contract was anything other than the low bid and the best deal for the public fisc. I also do not believe it matters whether this agreement came, as the dissent states, "in the course of an arm's-length criminal plea proceeding . . . overseen by a judicial tribunal." I believe that "the plea bargain cannot be allowed to supersede" the common law's determination that contracts impairing elections and public office are void as against public policy, even where both parties agree to it and a court has approved it. People v Keefe, 498 Mich. 962, 965 (2015) (Markman, J., concurring). Whether the source of the rule is the Legislature (as in Keefe) or the common law, I believe it must be abided by without regard to whether a court has approved it or a party prefers it.

         When courts in other jurisdictions have confronted agreements tending to interfere with who holds public office, they have invalidated them. While no two cases are exactly alike, the common thread is judicial unwillingness to assist public officials in leveraging their offices for private benefit. Thus, in Ham v Smith, 87 Pa. 63 (1878), the court refused to enforce a contract to pay a candidate to withdraw from a race so his opponent could be substituted on the party's ticket. In Martin v Francis, 173 Ky. 529; 191 S.W. 259 (1917), a candidate for office gave his opponent a promissory note in exchange for his opponent not running and being appointed the victor's deputy instead. The note "was immoral, illegal and against public policy" because it "affect[ed] the integrity of the elective franchise," id. at 533, and the promise to appoint, made "without reference to his fitness or qualifications for the place, . . . was part of an agreement entered into not for the benefit of the public but pursuant to a corrupt bargain detrimental to the public," id. at 534. In Basket v Moss, 115 N.C. 448; 20 S.E. 733 (1894), the defendant was a local postmaster who advised the plaintiff that he would leave his office and see to it that the plaintiff was appointed as his successor if the plaintiff would execute a promissory note to the defendant. When it came time to enforce the agreement, the court said:

Public offices are public trusts, and should be conferred solely upon considerations of ability, integrity, fidelity and fitness for the position. Agreements for compensation to procure these tend directly and necessarily to lower the character of the appointments to the great detriment of the public. Hence such agreements, of whatever nature, have always been held void as being against public policy. . . . [T]he moral sense revolts at traffic to any extent in the bestowal of public office. It is against good morals as well as against the soundest principles of public policy. If public offices can be sold or procured for money, the purchasers will be sure to reimburse themselves by dispensing the functions of their offices for pecuniary consideration. [Id. at 457-458.]

         I also do not see the caselaw as standing for the proposition that an economic exchange is the sine qua non of impropriety. For example, in Buck v First Nat'l Bank of Paw Paw, 27 Mich. 293 (1873), Buck robbed a bank, and his relatives gave promissory notes to the bank to pay off what he robbed from the bank on the understanding that if his debt was paid off, the bank would use its influence to see to it that he was not prosecuted. When he was prosecuted anyway, his relatives refused to pay. We noted that "[t]he theory of criminal punishment is that it should be graduated to the heinousness of the crime . . . ." Id. at 298. "Other considerations are not admissible, and whatever tends . . . to cause the penalty to be imposed on other grounds, may be said to be opposed to public policy." Id. I take from this that while what was involved happened to be a pecuniary exchange, that was not essential to our reasoning. Instead, what was essential was that a court was being asked to enforce an agreement that related to inducing public officials to act on the basis of something other than what they thought was in the public interest. I agree that "[t]he standards of commerce do not govern, and should not govern, the administration of criminal justice," People v Reagan, 395 Mich. 306, 314; 235 N.W.2d 581 (1975), but I see no principled reason to conclude that defendant would be barred from escaping the full consequences of his conduct in exchange for money, but can do so in exchange for his political future.

         I agree with the lead opinion (and Rumery) that the common law is the touchstone for our disposition of this case. However, I do not believe that either Blackstone or our predecessors in this Court would have tolerated the arrangement before us if asked, and that there is ample authority from common-law jurisdictions invalidating agreements of this sort. Therefore, it seems unnecessary to me to apply Rumery and Davies to the instant case and extend "the modern tendency to make the balance the measure of all things," Releases, Redress, and Police Misconduct, 136 U Pa L Rev at 862, when we can draw upon existing authority to invalidate this agreement per se under the law of contracts. In reaching this conclusion, I am mindful of the risk of "public policy" becoming nothing more than "the personal preferences of a majority of this Court," because I agree that "such a policy must ultimately be clearly rooted in the law." Terrien v Zwit, 467 Mich. 56, 67; 648 N.W.2d 602');">648 N.W.2d 602 (2002). But "the boundaries of public policy . . . are reflected in our state and federal constitutions, our statutes, and the common law." Id. at 66-67. This decision will not allow judges "to substitute their own personal preferences for those of the public expressed through the regular processes of the law," id. at 68 n 13, because it is grounded in a longstanding common-law tradition.

         For these reasons, I concur in the Court's judgment that the bar-to-office provision at issue was invalid, meaning that the trial court correctly invalidated this provision of the plea agreement, albeit for the wrong reasons. However, as noted, I concur in full that the trial court violated Siebert in not allowing the prosecutor to withdraw from the agreement in contravention of the separation of powers, [9] and I therefore concur in the remand for further proceedings consistent with the Court's judgment.

          Markman, C.J. (concurring in part and dissenting in part).

         This case concerns the validity of a plea agreement voluntarily entered into by defendant that imposed upon him the obligation to resign from the state senate and to refrain from holding any elective or appointed office for the five-year duration of his probation. The trial court ruled that those two obligations were invalid and denied the prosecutor's subsequent motion to vacate the agreement. After defendant resigned from the Legislature, the Court of Appeals affirmed. I agree with the lead opinion that the Court of Appeals erred by addressing the validity of the resignation obligation of the agreement because that issue was rendered moot by the fact that defendant had already resigned, and I further agree with the decision to vacate that part of the Court of Appeals judgment. Hence, I concur with that part of the lead opinion. However, for the reasons set forth below, I respectfully disagree with the lead opinion and the concurrence that the Court of Appeals correctly held that the "bar to office" obligation of the agreement was invalid. Hence, I dissent from that part of the lead opinion.

         I. FACTS AND HISTORY

         In May 2015, defendant Virgil Smith, then a Michigan state senator, was involved in an altercation with his ex-wife during which he apparently fired a gun at her, at her car, and into the air in her vicinity. As a result, the prosecutor charged him with domestic violence, MCL 750.81(2); malicious destruction of personal property valued at $20, 000 or more, MCL 750.377a(1)(a)(i); felonious assault, MCL 750.82; and possession of a firearm during the commission of a felony, MCL 750.227b. On February 11, 2016, the prosecutor and defendant entered into a plea agreement whereby defendant would plead guilty to malicious destruction of personal property valued at $20, 000 or more, serve a 10-month jail sentence, and be placed on probation for five years. In addition, the agreement provided that defendant must "[r]esign position as State Senator" and "[c]annot hold elective or appointed office during full pendency of probation."[1]Defendant agreed that these constituted his obligations under the plea agreement and supplied a factual basis for his guilty plea in court. The trial court accepted the plea and set a sentencing date for March 14, 2016.

         At sentencing, the trial court ruled sua sponte that the obligations of the plea agreement requiring defendant to resign from the Legislature and to refrain from public office during his probation were invalid, explaining in relevant part:

So it would be illegal for me to impose as a condition of sentence that he resign from office and that he not hold public office during the pendency of this probation. It would violate the separation of powers [be]cause I'm a member of the judicial branch and the constitution provides for the removal, a way that legislators can be removed.
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This agreement here in this case subverts both the authority of the senate and that of the Defendant's constituents. It's against public policy, as I indicated, by using a technique that has the possibly [sic] of executive or prosecutorial domination of ...

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