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BlogsPublications | October 2, 2017
4 minute read

COA: It is a violation of the separation of powers for a plea deal to include abstention from public office. MSC denies expedited review.

In a case that involved the competing powers of all three branches of government, the Court of Appeals struck down a plea deal between the prosecutor and the defendant—a Michigan state legislator—that restricted the defendant’s ability to run for public office. In People v. Smith, No. 332288, the appeals court upheld a trial court ruling that a plea deal violated the separation of powers by requiring the legislator to resign his position and abstain from running for office in the future. Further, the court upheld the trial court’s denial of the prosecutor’s request to withdraw the plea agreement and proceed to trial.

In Smith, the defendant was charged with “domestic violence, MCL 750.81(2); malicious destruction of personal property, MCL 750.377a(1)(a)(i); felonious assault, MCL 750.82; and felony firearm, MCL 750.227b.” Prior to trial, “the prosecution and defendant entered into a plea agreement whereby defendant would plead guilty to the charge of malicious destruction of property and agreed both to resign his Senate seat and to refrain from holding public office during his five-year probationary period (which included a ten-month jail term).” The defendant did resign his Senate seat, but he later decided to run for public office. The trial court struck the portion of the plea deal that restricted the defendant from holding public office, and the prosecution appealed.

The Court of Appeals held that the Michigan Constitution expressly provides the qualifications for state legislators, along with the process for their removal from office. Those provisions do not provide for removal by prosecution, the court said. Further, the Michigan Constitution “expressly bars the executive branch of government, of which the prosecution is a member . . . from expelling members from the other two branches of government.” The court also cited persuasive cases in other jurisdictions, along with concerns for public policy, ultimately concluding that “the trial court properly determined that the terms of the plea agreement requiring defendant to resign from his state Senate seat and not seek public officer [sic] for five years were unconstitutional.”

The Court of Appeals then turned to the issue of whether the trial court should have allowed the prosecution to withdraw the plea agreement and proceed to trial. Again citing public policy concerns, the court held that prosecutors should not be permitted to make an unconstitutional offer in a plea deal, test it in court, and then have another bite at the apple if portions of the offer are struck by the trial court. The court rejected the prosecution’s argument for withdrawing the remaining parts of the plea deal. 

The prosecution then immediately appealed to the Michigan Supreme Court, asking for expedited consideration. Because the defendant is again seeking public office, the prosecution asked the court to determine whether the original plea agreement should be reinstated. But the Michigan Supreme Court held that the prosecutor had not provided sufficient reason for the court to immediately take up the issue. Reversing its earlier decision to immediately hear the prosecutor’s appeal, the court said, “[W]e got it 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.”

The court dismissed each of the prosecutor’s arguments, noting both that the relevant election official is not a party to the case (and therefore could not be compelled to remove the defendant’s name from the ballot), and that the deadline to change the ballot had passed. Accordingly, the defendant’s name would remain on the ballot regardless of the court’s decision. Further, the court disagreed with the prosecutor’s argument 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.’” An informed electorate does not provide the court with a proper basis for expedited review, the court said. And, even if such a reason did provide a basis for expedited review, the trial court would still be within its discretion to reject the plea, rendering expedited review essentially pointless.

Ultimately, the court denied the prosecutor’s motion, holding that “expedited consideration is not warranted in this case.” The election will therefore proceed with the defendant’s name on the ballot, and the Michigan Supreme Court will take up the appeal after the election.