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A Better Partnership
December 28, 2012

COA Opinion: Challenge to commutation revocation is nonjusticiable political question

In Makowski v. Governor, the Michigan Court of Appeals concluded that challenges to the governor's decisions regarding whether to commute a prisoner's sentence are nonjusticiable questions outside the scope of judicial review. After Governor Jennifer Granholm purportedly commuted the plaintiff's nonparolable life sentence to parolable life but before the sealed and signed commutation certificate was processed by the Department of Corrections, she revoked the commutation. The plaintiff claimed that the revocation exceeded the governor's constitutional authority and violated his due process rights. The trial court dismissed the plaintiff's claim, concluding that it lacked jurisdiction over questions regarding a governor's commutation powers. The Court of Appeals affirmed.

Under the separation of powers doctrine, the judiciary may not decide a political question. Whether an issue is a political question is determined by a three part test that asks whether the power in question is specifically granted to another branch of government by the Constitution, whether the question would require a court to go beyond areas of judicial expertise, and whether the interest in maintaining respect between the branches of government weighs against judicial intervention.

The Court of Appeals determined that all three prongs of the test were met with respect to the governor's commutation powers. Under the Michigan Constitution, power over commutations is expressly granted to the governor without any limitations. Furthermore, resolution of the commutation issues presented in this case would require mere speculation rather than judicial expertise, would imply a lack of respect for the executive branch of government, and could coerce an outcome contrary to the governor's clear intentions. Therefore, the Court of Appeals confirmed that challenges related to the governor's authority to commute a sentence are outside the scope of judicial review and affirmed the trial court's summary dismissal of the plaintiff's claims.

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