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A Better Partnership
June 05, 2014

MSC finds that state constitution does not grant the governor power to revoke a validly granted commutation of plaintiff’s nonparolable life sentence

In Makowski v Governor, the Michigan Supreme Court held that the state constitution did not grant the governor the power to revoke a validly granted commutation. In finding that a commutation is complete when it is signed by the governor and affixed with the Great Seal by the Secretary of State, the Michigan Supreme Court concluded that Makowski, the plaintiff, was granted an irrevocable commutation of his nonparolable life sentence. Accordingly, Makowski is entitled to have his parolable life sentence reinstated.  
In 2010, then Governor Jennifer Granholm (“Granholm”) commuted Makowski’s nonparolable life sentence for his first-degree murder and armed robbery convictions. Four days after the commutation was signed and sealed, Granholm decided to revoke it.  Makowski filed an action in the Court of Claims seeking a declaratory judgment and injunctive relief against Granholm and the Michigan Secretary of State. The Court of Claims granted summary disposition in favor of the defendants, holding that it lacked jurisdiction, and Makowski appealed. The Michigan Court of Appeals affirmed the lower court’s decision, concluding that Granholm’s exercise of the commutation power presented a nonjusticiable political question. Makowski v Governor, 299 Mich App 166; 829 NW2d 291 (2012). The Michigan Supreme Court then granted Makowski’s application for leave to appeal.
On appeal, the Michigan Supreme Court addressed four issues: (1) the extent to which the governor’s exercise of commutation powers under Article 5, Section 14 of the Michigan Constitution was justiciable; (2) whether its review of the commutation power offended the separation-of-powers doctrine; (3) whether the commutation of Makowski’s sentence was complete; and (4) whether Article 5, Section 14 of the Michigan Constitution grants the governor the power to revoke a commutation.
First, the court determined that the case did not present a nonjusticiable political question. In its analysis, the court applied a three-part test derived from House Speaker v Governor, 443 Mich 560; 506 NW2d 190 (1993), which asks:

(1) [d]oes the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (2) Would resolution of the question demand that a court move beyond areas of judicial expertise? (3) Do prudential considerations for maintaining respect between the three branches counsel against judicial intervention? Id. at 574 (citations omitted).

After reviewing the constitutional text and debates from the Constitutional Convention, the court determined that in “the sense most obvious to the common understanding,” (Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 745; 330 NW2d 346 (1982)), and “the circumstances surrounding the adoption of the constitutional provision,” (id.), the governor’s commutation power is limited and the constitution restricts the procedure of a commutation. Due to the limitations and restrictions on the power, the court concluded that this case rested upon its interpretation of the constitution, thus putting before it a justiciable legal question that the court “has the duty to answer.”
Second, based on its analysis of the first issue, the Michigan Supreme Court found that while the constitution grants the commutation power to the governor, the court “may review the Governor’s exercise of that power to ensure that it is constitutional.” In its review, the court did not judge Granholm’s discretion in exercising the commutation power, but rather determined the constitutionality of her actions in this case. In light of this determination, the court resolved that their review did not offend the separation-of-powers doctrine.
Third, the court discussed whether the commutation of Makowski’s sentence was complete.  It its analysis, the court heavily relied on the United States Supreme Court opinion of Marbury v Madison, 5 US 137 (1803). Importantly, Marbury held that a power of an executive officer has been exercised “when the last act, required from the person possessing the power, has been performed.” Id. at 157. Here, the court concluded that the last act of the executive branch was performed and Granholm’s power of commutation was exercised “when the commutation was signed by the Governor, signed by the Secretary of State, and affixed with the Great Seal.” 
Fourth, because it held that Granholm exercised the power of commutation, the court had to address whether Article 5, Section 14 of the Michigan Constitution grants the governor a power to revoke a commutation.  The court reviewed the text of the constitution and interpreted it in “the sense most obvious to the common understanding.” The court noted that the power to “grant” is expressly provided by the provision at issue and that to imply a power to “revoke” would not give the constitution the understanding sought in its interpretations of constitutional text, particularly because the word “revoke” has an exact opposite meaning of the word “grant.” On the basis of this analysis, the court held that the constitution did not provide Granholm the power to revoke a commutation. 
The court reversed the judgment of the court of appeals and ordered the Department of Corrections to reinstate Makowski’s sentence as a life sentence with the possibility of parole. 
Justice Brian K. Zahra filed a concurring opinion in this case, as he would have applied the analysis in Marbury, 5 US 137, and found that Granholm’s power was exercised when she signed the commutation rather than when the affixing of the Great Seal was completed by the Secretary of State. 

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