Order Michigan Supreme Court
Lansing, Michigan
May 9, 2008 Clifford W. Taylor,
Chief Justice
135232 & (14) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
In re CONOR MICHAEL WILLIAMS, SC: 135232 Robert P. Young, Jr.
Minor. COA: 279573 Stephen J. Markman,
Justices
Bay CC: 2006-009365-DL
_________________________________________/
On order of the Court, the motion to add issues is DENIED. The application for
leave to appeal the September 28, 2007 order of the Court of Appeals is considered, and
it is DENIED, because we are not persuaded that the question presented should be
reviewed by this Court.
CORRIGAN, J., dissents and states as follows:
I would grant the prosecutor’s application for leave to appeal or remand to the
Court of Appeals for consideration as on leave granted. MCR 3.932, which authorizes a
court to transfer a case to the consent calendar without the approval of the prosecutor,
may violate the separation of powers doctrine.1 MCR 3.932 intrudes upon executive
power belonging to the office of the prosecutor, as well as the Legislature’s power to
1
MCR 3.932(C) provides, in relevant part:
If the court receives a petition, citation, or appearance ticket, and it
appears that protective and supportive action by the court will serve the best
interests of the juvenile and the public, the court may proceed on the
consent calendar without authorizing a petition to be filed. No case may be
placed on the consent calendar unless the juvenile and the parent, guardian,
or legal custodian agree to have the case placed on the consent calendar.
The court may transfer a case from the formal calendar to the consent
calendar at any time before disposition.
***
(7) Upon successful completion by the juvenile of the consent
calendar case plan, the court shall close the case and may destroy all
records of the proceeding. No report or abstract may be made to any other
agency nor may the court require the juvenile to be fingerprinted for a case
completed and closed on the consent calendar.
2
craft substantive law reflecting policy choices. Even in the absence of a separation of
powers problem, however, the trial court abused its discretion in transferring the case to
the consent calendar on the basis of its “philosophy” regarding sex offender registration
requirements for juveniles, a philosophy that is 180 degrees opposite the legislative
choice. MCL 28.724(5). I do not believe that the court’s decision is within the range of
“principled outcomes” when it directly contradicts the statutory language.
The prosecutor charged defendant with four counts of first-degree criminal sexual
conduct (CSC I). The petition alleged that defendant, who was 13 years old, digitally
penetrated his two younger half-sisters, who were 8 and 9 years old. He pleaded guilty in
juvenile court to one count each of second-degree criminal sexual conduct (CSC II) and
third-degree criminal sexual conduct (CSC III) in exchange for dismissal of the CSC I
charges after being advised that he would have to register as a sex offender under the Sex
Offenders Registration Act (SORA), MCL 28.724 et seq. for 25 years. It was later
discovered that defendant would have to register for life under SORA.2 The court
contacted the prosecutor’s office to ask whether it would amend the plea agreement to
remove the lifetime-registration requirement. The prosecutor declined to do so. Failing
to convince the prosecution to change its plea agreement, the trial court transferred the
case to the consent calendar. The prosecution objected to the transfer. Nevertheless, the
court proceeded to undo the plea and place the matter on the consent calendar.
The trial court’s decision to transfer defendant to the consent calendar over the
prosecutor’s objection subverted the prosecutor’s discretion to decide the terms of a plea
agreement and to enforce the statutory requirements under SORA. The Court has
addressed court interference with prosecutorial discretion on two occasions. In Genesee
Prosecutor v Genesee Circuit Judge, 386 Mich 672 (1972) (Genesee Prosecutor I), the
prosecutor challenged the trial court’s ability, over the prosecutor’s objection, to accept a
plea to an offense that was not charged or to a lesser included offense. The defendant
was bound over to the circuit court after a preliminary examination to stand trial on an
information charging possession of a stolen motor vehicle in violation of MCL 257.254.
Id. at 676. On the day of trial, the court granted defendant’s motion to plead guilty of
unlawfully driving away the automobile of another in violation of MCL 750.413, an
offense that was not charged or a lesser included offense of MCL 257.254. Id. Before
accepting the plea, the court asked the prosecutor whether he objected to the plea
agreement. The prosecutor indicated he did object because the facts supported the charge
as originally bound over and that charge was a more serious offense than the typical “joy
riding” case covered by MCL 750.413. Id. The court overruled the prosecutor’s
objection. Id. During the plea taking procedure, after listening to defendant’s recitation
of his criminal actions, the court stated, “Actually, you are really guilty of the higher
offense, but the court will accept your plea to the lesser offense.” Id at 677.
2
MCL 28.725(8)(b) requires lifetime registration for CSC II.
3
The prosecution sought a writ of superintending control from the Court of
Appeals, challenging the trial court’s ability to accept a plea, over the prosecutor’s
objection, to an offense not charged or to a lesser included offense. The Court of Appeals
dismissed for lack of jurisdiction.3 We granted leave, noting that “[w]hether the trial
judge may amend an information and accept a plea sua sponte and over the objection of
the prosecutor raises the question of constitutional separation of powers between the
judicial and executive branch.” Id. at 682. The Court explained that
[t]he prosecutor is a constitutional officer whose duties are provided by
law. The conduct of a prosecution on behalf of the people by the
prosecutor is an executive act. . . . [T]he prosecutor is the chief law
enforcement officer of the county and has the right to exercise broad
discretion in determining under which of two applicable statutes a
prosecution will be instituted. [Id. at 683 (citations omitted).]
A judge may not act as prosecutor, judge and jury. Id. “For the judiciary to claim power
to control the institution and conduct of prosecutions would be an intrusion on the power
of the executive branch of government and a violation of the constitutional separation of
powers. Id. at 684. Concluding its opinion, the Court noted that “[i]n . . . holding that the
judge here acted without authority we express no opinion on the propriety of accepting a
plea over the objection of the prosecutor where both offenses are charged by the
prosecutor, nor do we express an opinion on the propriety of accepting a plea over the
objection of the prosecutor to an offense which is a lesser included offense.” Id. at 684-
685 (emphasis in original).
The Court had the opportunity to address those issues not reached in Genesee
Prosecutor I in Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115 (1974)
(Genesee Prosecutor II). Specifically, the case addressed whether the court, over the
prosecutor’s objection, may accept a plea of guilty to one count of a multi-count
information and whether, over objection, the court may accept a plea of guilty to a lesser
included offense. In Genesee Prosecutor II, an information was filed charging that
defendant did “kill and murder” another person. Over the prosecutor’s objection, the
court accepted the defendant’s plea of guilty of the offense of manslaughter. Id. at 118.
In granting the prosecution’s complaint for superintending control, this Court held
that:
A circuit judge does not enjoy supervisory power over a prosecuting
attorney. He may reverse a magistrate’s decision only for abuse of
3
This Court held that the Court of Appeals had jurisdiction to entertain the complaint for
superintending control for the purpose of determining whether the trial judge acted
without jurisdiction or in excess of jurisdiction. Id. at 682.
4
discretion. He may not properly substitute his judgment for that of the
magistrate or prosecuting attorney as if he were reviewing the magistrate’s
decision de novo or acting in a supervisory capacity with respect to the
prosecuting attorney. He may reverse or revise their decisions only if it
appears on the record that they have abused the power confided in them.
[Id. at 121.]
Because testimony tended to show that the defendant shot the victim once while the
victim was standing and a second time five seconds after he had fallen to the ground, this
Court held that the prosecutor did not exceed his power in refusing to authorize a plea of
guilty of manslaughter. Id. at 122. The Court set aside the defendant’s plea and the
sentence imposed. Id. at 123. It remanded for trial on the information charging him with
the offense of manslaughter and murder. Id.
The present case involves virtually the same problem presented in Genesee
Prosecutor I and Genesee Prosecutor II–interference with prosecutorial discretion, in
violation of the separation of powers doctrine. MCR 3.932 encourages unconstitutional
interference by judges with the executive powers of prosecutors because it allows a trial
court to transfer a case to the consent calendar even when a prosecutor objects to the
transfer. MCR 3.932(C) only provides that “[n]o case may be placed on the consent
calendar unless the juvenile and the parent, guardian, or legal custodian agree to have
the case placed on the consent calendar.” (Emphasis added.) The court rule has no
regard for the charging official’s executive decision. In this case, the trial judge
disregarded the prosecution’s objection to placing defendant’s case on the calendar. This
judicial action, even if allowed under the court rules, improperly encroached on the
executive power vested in the prosecution.
MCR 3.932(C) may well also violate the separation of powers between the judicial
and legislative branches as applied in this case. In McDougall v Schanz, 461 Mich 15
(1999), the Court addressed whether MCL 600.2169 (qualifications for expert witnesses
in medical malpractice claims) impermissibly infringed on the Court’s rule-making
authority to promulgate court rules on practice and procedure. The Court determined that
the Legislature intended that § 2169 would often compel different qualification
determinations than MRE 702. Id. at 25. Because § 2169 and MRE 702 clearly
conflicted, the Court had to determine whether the statute impermissibly infringed on the
court's constitutional authority to enact rules governing practice and procedure. Id. at 26.
The Court concluded that § 2169 was substantive law, and thus it did not impermissibly
infringe on the court's constitutional rule-making authority. Id. at 37.
In so holding, the Court noted that “[i]t is beyond question that the authority to
determine rules of practice and procedure rests exclusively with this Court. Indeed, this
Court’s primacy in such matters is established in our 1963 Constitution.” Id. at 26. At
the same time, the Court is not authorized to enact court rules that “establish, abrogate, or
5
modify the substantive law.” Id. at 27. Therefore, if a court rule contravenes a
legislatively declared principle of public policy, the court rule should yield. Id. at 31.
On its face, MCR 3.932 does not necessarily contravene a legislatively declared
principle of public policy. Nevertheless, in its application, as demonstrated by the
present case, it can impermissibly invade the providence of the Legislature. In MCL
28.721a, the Legislature made a very clear statement regarding the policy considerations
undergirding the requirements of SORA:
The legislature declares that the sex offenders registration act was
enacted pursuant to the legislature's exercise of the police power of the state
with the intent to better assist law enforcement officers and the people of
this state in preventing and protecting against the commission of future
criminal sexual acts by convicted sex offenders. The legislature has
determined that a person who has been convicted of committing an offense
covered by this act poses a potential serious menace and danger to the
health, safety, morals, and welfare of the people, and particularly the
children, of this state. The registration requirements of this act are intended
to provide law enforcement and the people of this state with an appropriate,
comprehensive, and effective means to monitor those persons who pose
such a potential danger.
In order to implement this stated policy, the Legislature enacted MCL 28.725(7)(b),
which requires lifetime registration for CSC II. MCL 28.724(5) expressly applies the
registration requirements to juveniles. Transfer to the consent calendar, however, allows
defendant to avoid SORA requirements by removing him from the adjudicative process.
This thwarts the Legislature’s clear policy that it is in the public’s best interest to require
all sex offenders to register.
The trial court’s decision to transfer defendant’s case to the consent calendar also
circumvents the Legislature’s policy decisions expressed in the Juvenile Diversion Act,
MCL 722.821 et seq. The act allows for the removal of certain types of cases from the
adjudicative process, but specifically provides that CSC I, II and III cases may not be
diverted.4 Placement on the consent calendar similarly removes a defendant from the
adjudicative process, but the consent-calendar rule contains no restriction on the types of
cases to which it might apply. Regardless of whether a defendant commits CSC I, II, or
III, a defendant who successfully completes his consent calendar plan will avoid
conviction and therefore avoid mandatory registration by SORA. The consent calendar
4
MCL 722.823(3) provides that “[a] minor accused or charged with an assaultive offense
shall not be diverted. An assaultive offense is defined as, among other things, an offense
against a person described in MCL 750.520b (CSC I), MCL 750.520c (CSC II), or MCL
750.520d (CSC III).
6
is, in effect, diversion under a different name. The Juvenile Diversion Act, however,
reflects a clear legislative policy that sex offenders, regardless of age, may not avoid the
adjudicative process. The consent-calendar rule circumvents this legislative policy
choice.
By allowing the trial court to transfer a case to the consent calendar and avoid the
limits of the Juvenile Diversion Act and the requirements of SORA, the court rule invites
abrogation of the stated public policy of protecting the public from convicted sex
offenders where the executive charged with the prosecution decision concludes such
regulation is essential. The Court’s rule-making authority, however, is limited to rules of
practice and procedure. When the rules we have crafted invade the province of the
prosecutor’s executive power or the Legislature’s power to enact legislation reflecting
policy considerations, our court rules must yield to the powers exercised by the other
branches of government.
Even if MCR 3.932 does not implicate separation-of-powers problems, the trial
court abused its discretion in transferring defendant to the consent calendar on the basis
of its personal “philosophy” rather than the standards set forth in the rule. The trial court
explained its reasons for undoing the plea and placing the matter on the consent calendar:
The court feels, this is my philosophy, that that kind of—a
punishment for a young man who did some very horrible things, at the age
of 12 and 13, could be cruel and unusual punishment. It’s very—it not only
restricts him, it restricts college, it restricts jobs, it restricts his ability to live
in neighborhoods, it restricts his ability to ever go on school property—
ever. So if he were to marry and have children, he can’t go to his children’s
school activities because sex offenders are not allowed on school property.
They’re not allowed on some church properties. They’re not allowed in
certain neighborhoods.
***
. . . I’m not convinced, at this point, that someone who did an
offense when he was 12 or barely 13, require—requires lifetime registry on
the sex offender internet.
***
So for those reasons, I felt that it was improper or inappropriate to
have this young man pre-judged to be a lifetime member of the sex
offender registry when we don’t know yet whether or not he will make
progress.
7
In further justifying its decision to transfer defendant to the consent calendar, the
trial court made several troubling observations. It noted that “[t]his offense was a family
matter that happened within your family while he was in your supervision. Um, he—as
far as I know, he hasn’t preyed on little girls on buses or anything like that.” The court
did not explain how an offense inside the home by a victim’s family member ameliorates
the severity of the offense. Instead, the trial court explained:
[T]he doctor who evaluated him talked about a sex addiction, that
it’s a budding sex addiction. Those things are treatable. This court has
dealt with dozens, if not scores, of young men sex offenders. And we have
seen many of them, not all, but we have seen very many of them
rehabilitate through intensive counseling and therapy, so that they know
what the triggers are, they know how to avoid it, they do a recycle plan to
show that they know how to avoid those kind of thoughts that lead them to
inappropriate behaviors. They learn appropriate versus inappropriate
sexual behaviors. And it is something that’s treatable. And so we are
going to make sure that [defendant] gets that kind of treatment.
***
But because of the, what I consider to be the draconian requirements
of the sex offender registry for young children, and you know, I’m talking
about a boy who was 12 and 13 when he committed these acts, um to make
that a part of his sentence, and make it something that is um, quite likely,
going to be unable to be changed in the future. Um, it just seems to me to
be not giving him a chance to rehabilitate. And I—I want to give him the
hope that—that he will—you know, that he may not have to register if he
does successfully complete this.
The trial court acted outside the range of principled outcomes in focusing solely
on the damage defendant would suffer if forced to register as a sex offender, rather than
on harm to the public. The trial court’s philosophical disagreement with public policy,
specifically, the appropriateness of applying SORA to juveniles, cannot supersede the
plain language of the court rule. MCR 3.932(C) only allows a trial court to transfer a
case to the consent calendar if such an action “will serve the best interests of the juvenile
and the public.” (Emphasis added.) The Legislature has unequivocally expressed that it
is in the best interest of the public to require all sex offenders to register, notwithstanding
treatment or any other potential for rehabilitation. SORA contains no treatment or
rehabilitation exceptions to the registration requirements.
8
Because I believe that the consent calendar violates separation-of-powers
principles, and because the trial court abused its discretion in placing defendant on the
consent calendar, I would grant the prosecution’s application for leave to appeal or
remand this case to the Court of Appeals for consideration as on leave granted.
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.
May 9, 2008 _________________________________________
d0506 Clerk