Order Michigan Supreme Court
Lansing, Michigan
October 31, 2008 Clifford W. Taylor,
Chief Justice
136648 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
PEOPLE OF THE STATE OF MICHIGAN, Stephen J. Markman,
Plaintiff-Appellee, Justices
v SC: 136648
COA: 277012
Wayne CC: 06-013878-01
EDWIN DEWAYNE RICHMOND,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the April 22, 2008
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
KELLY, J. (dissenting.)
In this criminal case, following the trial court’s suppression of the prosecution’s
key evidence, the prosecution moved to dismiss the case, and the judge entered a nolle
prosequi order. The prosecution then appealed the adverse evidentiary ruling and the
Court of Appeals reversed the ruling, permitting reinstatement of the charges against
defendant. Defendant has now appealed that decision to this Court, arguing that the
Court of Appeals lacked jurisdiction to hear the appeal because the issue is moot.
The prosecution lacked standing to appeal in the Court of Appeals. It failed to
obtain a stay of the proceedings, appealing instead from a dismissal that it had requested.
Hence, it was not “an aggrieved party” and, for that reason, lacked standing.1 Indeed, the
prosecutor admits that “it is the better practice” for the prosecutor to “obtain a motion to
dismiss from the defense or a dismissal on the court’s own motion so as to avoid a claim
that the prosecutor cannot appeal that which itself has obtained . . . .”
1
MCL 770.3.
2
It is beyond argument that the evidentiary issue is moot, and that this Court does
not hear moot issues except under exceptional circumstances not applicable here. Detroit
v Ambassador Bridge Co.2
The prosecution has relied on Dybata v Kistler3 for the proposition that a claim of
appeal may be taken from a stipulated dismissal necessitated by an evidentiary ruling.
Dybata is inapposite here, given that it was a civil case and the parties had stipulated to
the dismissal. The Court should abide by the precedent on mootness that it set in
Ambassador Bridge and the law on standing established by the Legislature in MCL
770.3.
For these reasons, I would vacate the Court of Appeals judgment and dismiss the
case for mootness.
CAVANAGH, J., joins the statement of KELLY, J.
MARKMAN, J. (dissenting.)
I respectfully dissent. “This ‘Court does not reach moot questions or declare
principles or rules of law that have no practical legal effect in the case before us . . . .’”
Detroit v Ambassador Bridge, 481 Mich 29, 50 (2008), quoting Federated Publications v
City of Lansing, 467 Mich 98, 112 (2002). This is because the judiciary is constrained by
our constitution to exercise only the “judicial power.” Const 1963, art 3, § 2; Nat’l
Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 637 (2004). “Perhaps the
most critical requirement of the ‘judicial power’ has been its requirement of a genuine
case or controversy between the parties, one in which there is a real, not a hypothetical,
dispute . . . .” Id. at 615 (citation omitted). “We are to decide questions arising and
undetermined in a case pending, and we may not tender advice upon matters not in
litigation.” Anway v Grand Rapid R Co, 211 Mich 592, 611-612 (1920) (citation and
internal quotation marks omitted).
Any existing “controversy” between the parties in this matter was rendered moot
when the case was dismissed on the prosecutor’s motion. At that time, the action no
longer existed and there was no outstanding controversy for the Court of Appeals or this
Court to consider. It is of no moment, in my judgment, that the prosecutor may now
refile the charges and, assuming the trial court makes the same ruling, appeal that ruling
and end up in the exact same position as we are in now. “‘When the judgment appealed
from cannot be affected by the decision of the appellate court the case becomes a moot
one and the appeal should be dismissed; hearing and deciding such an appeal
2
Detroit v Ambassador Bridge Co, 481 Mich 29, 50-51 (2008).
3
Dybata v Kistler, 140 Mich App 65, 68 (1988).
3
for the purpose of establishing a rule of observance in cases subsequently arising is not an
exercise of judicial power.’” Id. at 614-615 (citation omitted).
This Court cannot ignore its own precedent. The prosecutor’s dismissal rendered
this case moot, such that neither the Court of Appeals nor this Court any longer has
jurisdiction to render a decision. Accordingly, I would vacate the Court of Appeals
judgment and dismiss this case.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 31, 2008 _________________________________________
p1028 Clerk