People v. Davis

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED APRIL 7, 2005

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 125436

GEVON RAMON DAVIS,

Defendant-Appellee.

_______________________________

BEFORE THE ENTIRE BENCH

WEAVER, J.

The issue presented is whether our Double Jeopardy

Clause1 prohibits the state of Michigan from prosecuting

defendant for the theft of an automobile from Michigan

after defendant pleaded guilty in Kentucky, where he was

apprehended, to a charge of attempted theft of the

automobile by unlawful taking. We overrule People v Cooper2

and hold that our Double Jeopardy Clause does not bar

1
Const 1963, art 1, § 15.
2
398 Mich 450; 247 NW2d 866 (1976).
defendant’s successive state prosecution in Michigan

because the entities seeking to prosecute defendant in this

case—Kentucky and Michigan—are separate sovereigns deriving

their authority to punish from distinct sources of power.

The decision of the Court of Appeals affirming the trial

court’s order granting defendant’s motion to quash the

information is reversed and the case is remanded to the

trial court for proceedings consistent with this opinion.

Facts

It is not disputed that defendant stole a 1999

Chevrolet Malibu, valued at $8,200, and drove the

automobile from Michigan to Kentucky, where he was

apprehended.

On August 22, 2001, defendant was charged in Kentucky

with theft by unlawful taking or disposition of property

valued at $300 or more.3 On September 4, 2001, defendant

pleaded guilty to an amended charge of attempted theft by

unlawful taking or disposition of property valued at $300

or more.4 He was sentenced to 365 days in jail, to be

suspended during two years’ probation.

On March 22, 2002, defendant was charged in Genesee

County, Michigan, with unlawfully driving away a motor

3
Ky Rev Stat Ann 514.030.
4
Ky Rev Stat Ann 506.010 and 506.020 address criminal
attempt.
2
vehicle and with receiving and concealing stolen property.5

Defendant moved to quash the information on the basis of

double jeopardy, asserting that the double jeopardy

provision of the Michigan Constitution6 and the case People

v Cooper prohibited a second prosecution in Michigan for

the theft of the automobile, unless the interests of

Michigan and Kentucky were substantially different. The

trial court granted defendant’s motion on June 11, 2002,

and dismissed the charges, concluding that the case was

controlled by People v Cooper.

The prosecutor appealed, and the Court of Appeals

affirmed in an unpublished opinion per curiam.7 The Court

of Appeals concluded that Cooper was still the controlling

law because only three justices from this Court would have

overruled Cooper in People v Mezy.8

This Court granted the prosecutor’s application for

leave to appeal.9

5
MCL 750.413 and 750.535(3)(a).

6
Const 1963, art 1, § 15.

7
People v Davis, unpublished opinion per curiam of the

Court of Appeals, issued November 25, 2003 (Docket No.
242207).
8
453 Mich 269; 551 NW2d 389 (1996).
9
470 Mich 870 (2004).
3
 Standard of Review

Whether the information should have been quashed on

the basis of double jeopardy is a question of law that this

Court reviews de novo. People v Nutt, 469 Mich 565, 573;

677 NW2d 1 (2004). In interpreting a constitutional

provision, the primary rule of constitutional

interpretation has been described by Justice Cooley:

“A constitution is made for the people and
by the people. The interpretation that should be
given it is that which reasonable minds, the
great mass of the people themselves, would give
it. ‘For as the Constitution does not derive its
force from the convention which framed, but from
the people who ratified it, the intent to be
arrived at is that of the people, and it is not
to be supposed that they have looked for any dark
or abstruse meaning in the words employed, but
rather that they have accepted them in the sense
most obvious to the common understanding, and
ratified the instrument in the belief that that
was the sense designed to be conveyed.’”[Traverse
City School Dist v Attorney General, 384 Mich
390, 405; 185 NW2d 9 (1971)(quoting Cooley’s
Const Lim 81)(added emphasis omitted).]

Analysis

At issue in the present case is whether our Double

Jeopardy Clause prohibits charging and trying defendant in

Michigan for the theft of an automobile from Michigan after

he pleaded guilty in Kentucky, where he was apprehended, to

attempted theft of the automobile. Answering this question

requires us to determine whether this Court correctly

4

construed our Double Jeopardy Clause and correctly applied

the doctrine of dual sovereignty in People v Cooper.10

Michigan’s Double Jeopardy Clause provides, “No person

shall be subject for the same offense to be twice put in

jeopardy.” Const 1963, art 1, § 15. The federal provision

is substantially similar, providing “nor shall any person

be subject for the same offence to be twice put in jeopardy

of life or limb . . . .” US Const, Am V. In Nutt, supra,

we explained that the protections provided by the Double

Jeopardy Clause include: (1) protection against a second

prosecution for the same offense after acquittal, (2)

protection against a second prosecution for the same

offense after conviction, and (3) protection against

multiple punishments for the same offense. Nutt, supra at

574.

In Nutt, we further concluded that

10
Justice Kelly in dissent asserts that the majority
answers the wrong question when it decides whether this
Court “correctly applied the doctrine of dual sovereignty
in People v Cooper.” “The appropriate question,” she
asserts, “is whether the Cooper decision correctly
interpreted our state’s constitution.” Post at 9. The
dissent is mistaken. There is no difference between the
“question” as phrased by the majority and the “question” as
phrased by the dissent; both are ways of stating the issue
in this case, which is whether Michigan’s Constitution
prohibits charging and trying defendant in Michigan for the
theft of an automobile from Michigan after he pleaded
guilty in Kentucky, where he was apprehended, of attempted
theft of the automobile.

5

 in adopting art 1, § 15, the people of this state
intended that our double jeopardy provision would
be construed consistently with Michigan precedent
and the Fifth Amendment. [Id. at 591.]

This conclusion was based, in part, on an examination of

the record of the constitutional convention in 1961. Id.

at 588-590. In 1835, Michigan’s Constitution, art 1, § 12,

contained language similar to that of the federal

constitution: “No person, for the same offense, shall be

twice put in jeopardy of punishment.” Nutt, supra at 588.

In 1850 and 1908, the language of this provision was

changed to “No person, after acquittal upon the merits,

shall be tried for the same offense.” Const 1850, art 6, §

29; Const 1908, art 2, § 14; Nutt, supra at 588; 1 Official

Record, Constitutional Convention 1961, p 465. At the 1961

constitutional convention, it was proposed that the

provision be revised to once again mirror the language of

the federal constitution. Nutt, supra at 589; 1 Official

Record, Constitutional Convention 1961, p 465. In

discussing the proposed amendment at the constitutional

convention, it was noted by Delegate Stevens that even when

the language differed from the federal provision in 1850

and 1908, this Court had “‘virtually held that this means

the same thing as the provision in the federal constitution

. . . .’” 1 Official Record, Constitutional Convention

1961, p 539. This historical context supports Nutt’s

6

conclusion that Michigan’s double jeopardy provision should

be construed consistently with the Fifth Amendment.

In Bartkus v Illinois,11 the defendant was tried in

federal district court for the robbery of a federally

insured savings and loan association and was acquitted.

After his acquittal, a state grand jury indicted the

defendant on robbery charges from the same robbery. The

defendant was tried, convicted, and sentenced to life

imprisonment. On appeal, the defendant asserted that his

state conviction was barred by double jeopardy. The United

States Supreme Court disagreed, concluding that successive

state and federal prosecutions based on the same

transaction or conduct were not barred by the Double

Jeopardy Clause. 359 US at 122-124.12 The Court reasoned:

11
359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959).
12
Justice Kelly references the more than thirty years
of case law on which Bartkus was based but then asserts
that the foundation for Bartkus is “questionable” and that
it was undermined by Benton v Maryland, 395 US 784; 89 S Ct
2056; 23 L Ed 2d 707 (1969). Post at 3, 5. We disagree.
As noted in Bartkus, the body of precedent on which it
relied provided “irrefutable evidence that state and
federal courts have for years refused to bar a second trial
even though there had been a prior trial by another
government for a similar offense,” and concluded that “it
would be disregard of a long, unbroken, unquestioned course
of impressive adjudication for the Court now to rule that
due process compels such a bar. Bartkus, supra at 136.
Moreover, the Heath case discussed later in this opinion
makes it clear that the United States Supreme Court meant
what it said in Bartkus.
7

 It would be in derogation of our federal
system to displace the reserved power of States
over state offenses by reason of prosecution of
minor federal offenses by federal authorities
beyond the control of the States. [Id. at 137.]

In People v Cooper, the defendant was acquitted in

federal court of attempting to rob a bank. He was then

tried in state court on charges stemming from the same

criminal act. 398 Mich at 453. In addressing the

defendant’s argument that his trial in state court was

barred by double jeopardy, this Court acknowledged the

holding in Bartkus that successive prosecutions were not

barred by double jeopardy, but decided that a “trend in

United States Supreme Court decisions” suggested “that the

permissibility of Federal-state prosecutions as a

requirement of our Federal system [was] open to

reassessment.” Id. at 457. The Court opined that the

trend it perceived required increased scrutiny of the dual

sovereignty doctrine, and that double jeopardy may bar

successive prosecutions. Id. at 459-460.13 The Court

explained:

13
The Cooper Court cited Elkins v United States, 364
US 206; 80 S Ct 1437; 4 L Ed 2d 1669 (1960), and Murphy v
Waterfront Comm of New York Harbor, 378 US 52; 84 S Ct
1594; 12 L Ed 2d 678 (1964), as cases that undermined the
Bartkus decision. But neither case specifically addressed
whether successive prosecutions were barred by double
jeopardy. The issue in Elkins was whether “articles
obtained as the result of an unreasonable search and
seizure by state officers, without involvement of federal
8
 The dual sovereignty notion is predicated on
the belief that state criminal justice systems
should be strong. Additionally, there is the
fear that Federal legislation which covers a
criminal act may involve interests unlike the
interests which state legislation covering the
same criminal act may seek to promote. We agree
that where an individual’s behavior violated
state and Federal laws which are framed to
protect different social interests, prosecution
by one sovereign will not satisfy the needs of
the other sovereign. In such a case, given the
Federal government’s preemptive power, the
inability of the state to vindicate its interests
would truly be an “untoward deprivation of the
historic right and obligation of the States to
maintain peace and order within their confines.
It would be in derogation of our federal system”.
Bartkus, supra, at 137 (Frankfurter, J.).
Therefore, we cannot accept defendant’s proffered
alternative to the dual sovereignty doctrine
which would prohibit all successive prosecutions
by two sovereigns for the same act.

However, the interest of the Federal and
state governments in prosecuting a criminal act
frequently coincide. When state and Federal
interests do coincide, prosecution by one
sovereign will satisfy the need of the other.
[Id. (emphasis in original).]

Thus, the Cooper Court held “that Const 1963, art 1, § 15

prohibits a second prosecution for an offense arising out

of the same criminal act unless it appears from the record

that the interests of the State of Michigan and the

officers, [may] be introduced in evidence against a
defendant over his timely objection in a federal criminal
trial.” 364 US at 208. And the issue presented in Murphy
was “whether one jurisdiction within our federal structure
may compel a witness, whom it has immunized from
prosecution under its laws, to give testimony which might
then be used to convict him of a crime against another such
jurisdiction.” 378 US at 53.
9
jurisdiction which initially prosecuted are substantially

different.” Id. at 461.

Justice Kelly in dissent makes much of the Cooper

Court’s statement that its decision rested on Michigan’s

Constitution. Id. at 461. But simply stating this

conclusion does not make it so. A close examination of

Cooper reveals that it was not decided on the basis of

different language in our Constitution or on the basis of a

different history behind Michigan’s adoption of a double

jeopardy bar. Indeed, no analysis was made at all

regarding any of the text or history of art 1, § 15, and

apart from the conclusory statement at the end of the

Cooper opinion that the decision was based on Michigan’s

double jeopardy provision, there is nothing in the opinion

actually linking this statement to the actual language or

history of Michigan’s double jeopardy provision. Rather,

the case was decided as it was because the Cooper Court

simply questioned Bartkus and mistakenly perceived a

“trend” in United States Supreme Court law.14 Thus,

although the Cooper Court was wrong in its understanding of

federal law, it did look to federal law in construing

14
Similarly, the dissent by Justice Kelly is based on
nothing more that its disagreement with the Bartkus
decision and its desire to substitute its own double
jeopardy policy for the double jeopardy analysis that the
language and history of Michigan’s double jeopardy
provision requires.
10
Michigan’s double jeopardy provision, just as the majority

does in this case.

Nine years after this Court’s decision in Cooper, the

United States Supreme Court decided Heath v Alabama,15 a

case that demonstrates that the Cooper Court was incorrect

about any “trend” narrowing the dual sovereignty doctrine

or the ability of states to prosecute successively. In

Heath, the petitioner hired two men to kill his wife. The

petitioner met the men in Georgia, just over the border

from his Alabama home, and led the men back to his home.

The men kidnapped the petitioner’s wife from the home; her

body was later found on the side of a road in Georgia. The

petitioner pleaded guilty in Georgia to a murder charge in

exchange for a sentence of life imprisonment. He was then

indicted in Alabama for the capital offense of murder

during a kidnapping, convicted, and sentenced to death.

474 US at 83-86. The petitioner asserted that the Alabama

prosecution constituted double jeopardy. The United States

Supreme Court granted certiorari limited to the double

jeopardy issue and “requested the parties to address the

question of the applicability of the dual sovereignty

doctrine to successive prosecutions by two States.” Id. at

87.

15
474 US 82; 106 S Ct 433; 88 L Ed 2d 387 (1985).
11
 The Heath Court determined that the dual sovereignty

doctrine permitted successive prosecutions under the laws

of different states. The Court explained:

The dual sovereignty doctrine, as originally
articulated and consistently applied by this
Court, compels the conclusion that successive
prosecutions by two States for the same conduct
are not barred by the Double Jeopardy Clause.

The dual sovereignty doctrine is founded on
the common-law conception of crime as an offense
against the sovereignty of the government. When
a defendant in a single act violates the “peace
and dignity” of two sovereigns by breaking the
laws of each, he has committed two distinct
“offences.” United States v. Lanza, 260 U.S.
377, 382 (1922). As the Court explained in Moore
v. Illinois, 14 How. 13, 19 (1852), “[an]
offense, in its legal signification, means the
transgression of a law.” Consequently, when the
same act transgresses the laws of two sovereigns,
“it cannot be truly averred that the offender has
been twice punished for the same offense; but
only that by one act he has committed two
offenses, for each of which he is justly
punishable.” Id., at 20.

In applying the dual sovereignty doctrine,
then, the crucial determination is whether the
two entities that seek successively to prosecute
a defendant for the same course of conduct can be
termed separate sovereigns. This determination
turns on whether the two entities draw their
authority to punish the offender from distinct
sources of power. See, e.g., United States v.
Wheeler, 435 U.S. 313, 320 (1978); Waller v.
Florida, 397 U.S. 387, 393 (1970); Puerto Rico v.
Shell Co., 302 U.S. 253, 264-265 (1937); Lanza,
supra, at 382; Grafton v. United States, 206 U.S.
333, 354-355 (1907). Thus, the Court has
uniformly held that the States are separate
sovereigns with respect to the Federal Government
because each State’s power to prosecute is
derived from its own “inherent sovereignty,” not
from the Federal Government. Wheeler, supra, at
320, n. 14. See Abbate v. United States, 359
12

 U.S. 187, 193-194 (1959) (collecting cases);
Lanza, supra. As stated in Lanza, supra, at 382:

“Each government in determining what shall
be an offense against its peace and dignity is
exercising its own sovereignty, not that of the
other.

“It follows that an act denounced as a crime
by both national and state sovereignties is an
offense against the peace and dignity of both and
may be punished by each.”

See also Bartkus v. Illinois, 359 U.S. 121
(1959); Westfall v. United States, 274 U.S. 256,
258 (1927) (Holmes, J.)(the proposition that the
State and Federal Governments may punish the same
conduct “is too plain to need more than
statement”).

The States are no less sovereign with
respect to each other than they are with respect
to the Federal Government. Their powers to
undertake criminal prosecutions derive from
separate and independent sources of power and
authority originally belonging to them before
admission to the Union and preserved to them by
the Tenth Amendment. [Id. at 88-89.]

The Court further explained that in cases where it had

found the dual sovereignty doctrine inapplicable, it had

done so “because the two prosecuting entities did not

derive their powers to prosecute from independent sources

of authority.” Id. at 90. The Court explicitly rejected

the balancing of interests approach adopted by this Court

in Cooper. Id. at 92-93.

The correctness of the Cooper decision, particularly

in light of the United States Supreme Court’s decision in

13

Heath, has already been questioned. In People v Mezy,16

three justices17 stated that they would overrule Cooper and

hold that the double jeopardy provisions of the Michigan

Constitution and the United States Constitution did not bar

successive state and federal prosecutions. 453 Mich at

272. The justices noted that the United States Supreme

Court had consistently held that successive state and

federal prosecutions did not violate double jeopardy. Id.

at 278-280. Further, the justices noted that there was no

“‘compelling’” reason to afford greater protection under

the Michigan double jeopardy provision than the federal and

that the two provisions should be treated as “‘affording

the same protections.’” Id. at 280-281, quoting People v

Perlos, 436 Mich 305, 313 n 7; 462 NW2d 310 (1990).18

Consistent with the United States Supreme Court

decision in Heath and with the reasoning of three justices

of this Court in Mezy, we now overrule People v Cooper.19

16
453 Mich 269; 551 NW2d 389 (1996).
17
The opinion was written by Justice Weaver and signed
by Justices Boyle and Riley.
18
The justices also noted that, contrary to the Cooper
Court’s decision, the majority of states hold that both the
United States Constitution and their constitutions allow
for dual prosecutions by the state and federal governments.
453 Mich at 281 n 14.
19
As recently noted, although we overrule precedent
with caution, the doctrine of stare decisis is not applied
14
As noted in Nutt, the common understanding of the people at

the time that our double jeopardy provision was ratified

was that the provision would be construed consistently with

the federal double jeopardy jurisprudence that then

existed. Applying the reasoning of Bartkus, which was

clearly reaffirmed in Heath, the entities seeking to

prosecute in this case—Kentucky and Michigan—are separate

sovereigns deriving their authority to punish from distinct

sources of power. Therefore, the prosecution of defendant

in Michigan for the theft of the automobile is not barred

by double jeopardy.20

mechanically to prevent the Court from overruling previous
decisions that are erroneous. We may overrule a prior
decision when we are certain that it was wrongly decided
and “‘less injury will result from overruling than from
following it.’” People v Moore, 470 Mich 56, 69 n 17; 679
NW2d 41 (2004), quoting McEvoy v Sault Ste Marie, 136 Mich
172, 178; 98 NW 1006 (1904). The United States Supreme
Court decision in Heath clearly demonstrates that the
Cooper Court was wrong about any “trend” that it thought it
observed in United States Supreme Court case law concerning
dual sovereignty and double jeopardy. Further, the Cooper
Court failed to consider the language of our double
jeopardy provision or its historical context.
Additionally, there are no relevant “reliance” interests
involved and therefore overruling Cooper would not produce
any “practical real-world dislocations.” See Robinson v
Detroit, 462 Mich 439, 466; 613 NW2d 307 (2000).
Therefore, we overrule the erroneous decision made by the
Cooper Court.
20
Justice Kelly in asserts that by looking to federal
law to guide the interpretation of our double jeopardy
provision, we are somehow giving away the people’s
sovereignty. Post at 18. We disagree. Rather, it is the
dissent’s interpretation that would cede this state’s
sovereignty to another state by foreclosing prosecution in
15
 The decision of the Court of Appeals affirming the

trial court’s order granting defendant’s motion to quash is

reversed and the case is remanded to the trial court for

proceedings consistent with this opinion.

Elizabeth A. Weaver
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

Michigan, when there is no evidence in our constitutional
history that the people of Michigan sought, in adopting
Const 1963, art 1, § 15, to cede any of this state’s
sovereignty to the federal government or another state.
Any abrogation based on double jeopardy principles of
Michigan’s sovereign power to prosecute offenders is a
decision properly left to the people by amending the
Constitution, and not to this Court. Further, we note that
the Michigan Legislature has statutorily forbidden
successive prosecutions only with regard to prosecutions
concerning illegal drugs. MCL 333.7409 provides: “If a
violation of this article is a violation of a federal law
or the law of another state, a conviction or acquittal
under federal law or the law of another state for the same
act is a bar to prosecution in this state.”
16
 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 125436

GEVON RAMON DAVIS,

Defendant-Appellee.
_______________________________

KELLY, J. (dissenting).

This Court has granted the prosecutor’s request to

further weaken the Double Jeopardy Clause of the Michigan

Constitution. The majority agrees with the prosecutor that

the state’s Double Jeopardy Clause does not bar this

Michigan prosecution, despite the fact that Kentucky has

already convicted defendant of the same crime.

I dissent. Our decision in People v Cooper1 provides

the appropriate protection against double jeopardy to

Michigan citizens and to others within the state’s

jurisdiction. The majority decision presents yet another

instance in which this Court's majority disagrees with

existing precedent, gives it short shrift, and changes

1
398 Mich 450; 247 NW2d 866 (1976).
Michigan law. I strongly disagree with the majority's

choice to overrule Cooper.

This case does not present one of those rare occasions

that requires reversing a previous decision of the Court.

I would affirm the ruling of the Court of Appeals and, in

doing so, I would follow this Court’s precedent in Cooper.

I. Facts and Status of the Case

Defendant allegedly stole an acquaintance’s car or

acquired it after someone else stole it in Michigan. He

then drove the car to Kentucky, where he was arrested. By

agreement with the Kentucky prosecutor, defendant pleaded

guilty of attempted theft by unlawful taking or disposition

of property valued at $300 or more. Ky Rev Stat Ann

514.030.

Later, defendant was charged in Michigan for the same

car theft. The prosecutor accused him of unlawfully

driving away a motor vehicle (UDAA), MCL 751.413, and

receiving and concealing stolen property with a value of

$1,000 or more but less than $20,000. MCL 750.535(3)(a).

On defendant’s motion, the trial court quashed the

information and dismissed the charges on the basis that

they violated the Double Jeopardy Clause of the Michigan

Constitution. Const 1963, art 1, § 15. The Court of

Appeals affirmed the decision. People v Davis, unpublished

2

opinion per curiam of the Court of Appeals, issued November

25, 2003 (Docket No. 242207).

II. Federal Double Jeopardy Jurisprudence

The United States Supreme Court determined in Bartkus

v Illinois2 that the Fifth Amendment's Double Jeopardy

Clause3 allows successive prosecutions by the federal and

state governments.

But Bartkus rests on a questionable foundation. The

opinion is premised on a concept of dual sovereignty that

the United States Supreme Court began to recognize in dicta

starting in the mid-nineteenth century.4 The doctrine was

not applied at common law. It was first utilized by the

Court in 1922, in United States v Lanza, 260 US 377; 43 S

Ct 141; 67 L Ed 314 (1922).

2
359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959).
3
The relevant portion of the federal Double Jeopardy
Clause reads, "nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb
. . . ." US Const, Am V.
4
See Fox v Ohio, 46 US 410; 12 L Ed 213 (1847) (a
state may prosecute for passing false coin; the federal
government may prosecute for counterfeiting; the former is
a private wrong, while the latter is an offense directly
against the federal government); United States v Marigold,
50 US 560; 13 L Ed 257 (1850) (federal statute and federal
prosecution for uttering false coinage was constitutionally
permissible); Moore v Illinois, 55 US 13; 14 L Ed 306
(1852) (Illinois law and federal fugitive slave law
dissimilar in essential purpose, definition of the
offenses, and type of punishment each statute authorized).

3

 In 1937, the United States Supreme Court held that the

Fourteenth Amendment did not incorporate the Fifth

Amendment's Double Jeopardy Clause against the states.

Palko v Connecticut, 302 US 319; 58 S Ct 149; 82 L Ed 288

(1937), overruled by Benton v Maryland, 395 US 784; 89 S Ct

2056; 23 L Ed 2d 707 (1969). In several earlier cases, the

Court had allowed multiple state and federal prosecutions

for the same offense. It had permitted the federal

government to prosecute an offense for which a state court

had already obtained a conviction. Lanza, supra at 382.

Later, it had allowed states and the federal government to

criminalize the same conduct. Westfall v United States,

274 US 256, 258; 47 S Ct 629; 71 L Ed 1036 (1927).

Then, in 1959, the United States Supreme Court in

Bartkus allowed a state prosecution to proceed after the

defendant had been acquitted of the charged offense in a

federal court. It found that the federal Double Jeopardy

Clause did not prohibit state prosecutions for state

criminal offenses.

The reasoning of these cases was based on the argument

that the Fifth Amendment’s Double Jeopardy Clause was

inapplicable to the states. Indeed, this was explicitly

noted in Bartkus, in which Justice Frankfurter stated his

4

view that the Fourteenth Amendment did not apply the first

eight amendments to the states. Bartkus, supra at 124.

In 1969, the Supreme Court rejected the idea that the

Fifth Amendment did not apply to the states through the

Fourteenth Amendment. In Benton v Maryland,5 the Court held

that the Fifth Amendment protection is “a fundamental ideal

in our constitutional heritage, and that it should apply to

the States through the Fourteenth Amendment.” Benton,

supra at 794. Because Bartkus was based on the belief that

the Fifth Amendment had no application to the states,

Benton undermined the reasoning of Bartkus.6 See Smith v

United States, 423 US 1303, 1307; 96 S Ct 2; 46 L Ed 2d 9

(1975) (Douglas, Circuit Justice).

5
395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).
6
At least one commentator has recognized the paradox
created by the dual sovereignty doctrine:

The doctrine of selective incorporation,
which makes the Double Jeopardy Clause applicable
to the states, . . . depends upon the rationale
that by enacting the Fourteenth Amendment the
states surrendered a part of their sovereignty to
the federal government. Yet, the dual sovereignty
doctrine maintains that both the states and the
federal government, bound by the same Double
Jeopardy Clause because of their shared
sovereignty, are separate sovereigns for purposes
of assessing possible violations of the Clause.
See, e.g., Heath, 474 U.S. [82; 106 S Ct 433; 88
L Ed 2d 387 (1985)]. [McAninch, Unfolding the
law of double jeopardy, 44 SC L R 411, 425 n 104
(1993).]

5

 The weak underpinnings of the Bartkus line of cases is

highlighted when one considers the common law on which our

system of constitutional jurisprudence is based. As Justice

Black noted in his vigorous Bartkus dissent, and as legal

scholars continue to note,7 the English common law did not

recognize the concept of dual sovereignty.

Justice Black pointed out that protection from double

jeopardy is part of the common law of nations. Bartkus,

supra at 154 (Black, J., dissenting), citing Batchelder,

Former Jeopardy, 17 Am L R 735 (1883). In fact,

international law recognizes that multiple prosecutions by

separate nations violate fundamental human rights.8

7
See, for example, Comment, The dual sovereignty
exception to double jeopardy: An unnecessary loophole, 24 U
Balt L R 177, 180 (1994), citing Comment, Successive
prosecution by state and federal governments for offenses
arising out of the same act, 44 Minn L R 534, 537 n 18
(1960); Harrison, Federalism and double jeopardy: A study
in the frustration of human rights, 17 U Miami L R 306
(1963); Grant, Successive prosecutions by state and nation:
Common law and british empire comparisons, 4 UCLA L R 1
(1956).
8
See, e.g., International Covenant on Civil and
Political Rights, art 14(7), 999 UNTS 171, 177 (1976). A
nation may not extradite a person if doing so would expose
that person to subsequent prosecution for the same crime.
1 Restatement Foreign Relations Law of the United States,
3d, § 476(1)(b), p 566. The protection from double
jeopardy has been a part of our western civilization since
at least Greek and Roman times and is a "'universal maxim
of common law.'" Bartkus, supra at 151-153, (Black, J.,

6

 Post-Bartkus cases also raised questions regarding

whether the dual sovereignty doctrine on which Bartkus was

based would survive unscathed. For instance, in Elkins v

United States,9 the Court rejected the dual sovereignty

doctrine in the context of search and seizure. There, the

Court held that where state authorities obtained evidence

during a search that would have violated the Fourth

Amendment, the evidence must be excluded at the federal

level.

Likewise, in Murphy v Waterfront Comm of New York

Harbor,10 the Court refused to apply the dual sovereignty

doctrine. It held that a state may not constitutionally

compel a witness to testify when that testimony might be

used against him in a federal prosecution. These decisions

rejecting the application of the dual sovereignty doctrine

in other contexts, coupled with the Benton decision,

prompted comment by many courts, including the Cooper

Court. The question was whether the dual sovereignty

doctrine would continue to be applied in the double

jeopardy context.

dissenting), quoting 2 Cooley, Blackstone's Commentaries,
(4th ed, 1899), p 1481.
9
364 US 206; 80 S Ct 1437; 4 L Ed 2d 1669 (1960).
10
378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964).

7

 More recently, though, the United States Supreme Court

has held that successive prosecutions by individual states

do not violate the Fifth Amendment's double jeopardy

protection. Heath v Alabama, 474 US 82; 106 S Ct 433; 88 L

Ed 2d 387 (1985). In Heath, the Supreme Court not only

resurrected the dual sovereignty doctrine, it extended the

doctrine to successive prosecutions by different states. No

matter how flawed the reasoning of Bartkus, then, the

Supreme Court has validated it. It has verified that,

under current federal law, the dual sovereignty doctrine

allows for successive prosecutions when they are initiated

by different sovereigns.

This Court clearly does not have the power to overrule

United States Supreme Court precedent in interpreting the

Double Jeopardy Clause of the United States Constitution.

On the other hand, we are not bound to adopt that Court's

analysis of the federal constitution when we interpret the

Michigan Constitution. This is especially true when the

analysis is flawed. While the Court's decision regarding a

similar constitutional provision provides guidance, the

rights of Michiganians are not tied to what the Court chose

to do with a federal constitutional provision.

Although the Michigan Supreme Court commented in

Cooper on the direction it thought the United States

8

Supreme Court was headed, it grounded its decision on an

interpretation of the Michigan Constitution. This was

fitting. When determining the rights guaranteed to people

in Michigan under the Michigan Constitution, our Court is

not bound by later interpretations given the federal

constitution by federal courts.

III. The Michigan Constitution

This case is not about the federal constitution’s

Fifth Amendment double jeopardy protection. It is about the

double jeopardy protection provided by the Michigan

Constitution to those within the jurisdiction of this

state. The majority claims that it must determine whether

we "correctly applied the doctrine of dual sovereignty in

People v Cooper." Ante at 5. The appropriate question is

whether the Cooper decision correctly interpreted our

state's constitution. I assert that it did.

The Cooper Court rejected the United States Supreme

Court's one-sided view of dual sovereignty. The current

majority suggests that the Cooper Court incorrectly applied

dual sovereignty, whereas the Cooper Court specifically

rejected it. Instead, it appropriately adopted a rule that

balances the rights of the state with the fundamental

rights afforded to the accused.

9

 As Justice Denise Johnson of the Vermont Supreme Court

observed, "[W]e do not need a unique state source to

justify our differences with the interpretation of the

federal Constitution. The concept of sovereignty gives

state courts the right and the justification to disagree."

Woltson, ed, Protecting Individual Rights: The Role of

State Constitutionalism, Report of the 1992 State Judges

Forum (1993), p 43, quoted in Shepard, The maturing nature

of state constitution jurisprudence, 30 Val U L Rev 421,

439 (1996).

[O]ur courts are not obligated to accept
what we deem to be a major contraction of citizen
protections under our constitution simply because
the United States Supreme Court has chosen to do
so. We are obligated to interpret our own organic
instrument of government. [Sitz v Dep't of State
Police, 443 Mich 744, 763; 506 NW2d 209 (1993).]

In interpreting the Michigan Constitution, "'the

provisions for the protection of life, liberty and property

are to be largely and liberally construed in favor of the

citizen.'" Lockwood v Comm'r of Revenue, 357 Mich 517, 557;

98 NW2d 753 (1959), quoting United States ex rel Flannery v

Commanding Gen, Second Service Command, 69 F Supp 661, 665

(SD NY, 1946).

The Double Jeopardy Clause in the Michigan

Constitution currently reads, "No person shall be subject

for the same offense to be twice put in jeopardy." Const

10

1963, art 1, § 15. To determine the parameters of this

guarantee, we must examine the history of our state's

constitutional and common-law heritage.

Before reaching statehood, Michigan accepted the

common law of England as part of its legal heritage. The

common law was applied when Michigan was part of the

province of Upper Canada in 1792. At that time, the

legislature of Upper Canada repealed Canadian Law and

declared that "resort should be had to the laws of England

as the rule for the decision of [real property and civil

rights]." 1 Michigan Territorial Laws, Introduction, p

viii (1871). Likewise, the Northwest Ordinance contained a

provision indicating that the territories should apply the

common law. Northwest Ordinance of 1787, art II.11

When the territory that would become Michigan shifted

possession from England to the new United States of

America, the common law remained. "It is a principle of

universal jurisprudence that the laws, whether in writing

or evidenced by the usage and customs of a conquered or

ceded country, continue in force till altered by the new

sovereign. . . . All that occurred here was the mere change

of the sovereign power, which left all rights and laws as

11
The 1783 Treaty of Paris finalized the boundaries
between Canada and the United States.

11

they had been." 1 Michigan Territorial Laws, Introduction,

pp x-xi (1871). Furthermore, in 1795 the Governor and

judges of the territory adopted an act declaring that the

common law of England was the applicable law. Id. at xi-

xii.

The common law of England held that protection from

double jeopardy extended to prosecutions by other

sovereigns. The practice in Great Britain in the

seventeenth and eighteenth centuries was that prosecution

by a different sovereign precluded England from retrying a

defendant. See State v Hogg, 118 NH 262, 265-266; 385 A2d

844 (1978).

Michigan adopted its first constitution in 1835. At

that time, its double jeopardy provision read, "No person

for the same offense, shall be twice put in jeopardy of

punishment." Const 1835, art 1, § 12. In 1850, the state

constitution was expanded and reworded to read, "No person

after acquittal upon the merits shall be tried for the same

offense." Const 1850, art 6, § 29. Constitutional

convention notes from 1850 suggest that the proponent of

12

this change considered it to be simply a clarification of

the provision's language.12

After the 1850 Constitution was ratified, the Michigan

Supreme Court had occasion to interpret this new language.

It determined that the phrase "after acquittal on the

merits" did not mean that jeopardy attached only after a

verdict was rendered. Writing for the Court, Justice COOLEY

stated:

The present Constitution of this State was
adopted in 1850, when all the tendencies of the
day were in the direction of enlarging individual
rights, giving new privileges, and imposing new
restrictions upon the powers of government in all
its departments. This is a fact of common
notoriety in this State; and the tendencies
referred to found expression in many of the
provisions of the Constitution. Many common-law
rights were enlarged, and given the benefit of
constitutional inviolability; and if any were
taken away, or restricted in giving new
privileges, it was only incidentally done in
making the general system more liberal, and, as
the people believed, more just. Such a thing as
narrowing the privileges of accused parties, as
they existed at the common law, was not thought
of; but, on the contrary, pains were taken to see
that they were all enumerated and made secure.
Some were added; and among other provisions
adopted for that purpose was the one now under
consideration. [People v Harding, 53 Mich 481,
485-486; 19 NW 155 (1884).]

12
"Mr. C. [Delegate Crary] said he considered the
language used in the section indefinite, and his amendment
merely proposed language more definite and better
understood." Report of the Proceedings and Debates in the
Convention to Revise the Constitution of the State of
Michigan, p 58 (1850).

13

 The Harding Court, therefore, determined that the

language used in the 1850 Constitution was meant to expand

the rights our state's citizens had at common law. At

common law, a person could be retried after an acquittal on

the merits if the first court lacked jurisdiction. The

language of the 1850 Constitution was intended to preclude

this "great hardship." Id. at 486. "It was meant to give

a privilege not existing at the common law; it had no

purpose to take away any which before existed." Id.

A constitutional convention was next called in 1908,

but that convention left the language of the double

jeopardy provision untouched. During the 1961

constitutional convention, the double jeopardy provision

again received attention. The convention notes suggest

that the delegates were concerned only with the issue of

when jeopardy attached. The actual language of the state

constitution's double jeopardy provision indicated that the

protection did not attach until a verdict of acquittal had

been rendered. Yet, in Harding, the Michigan Supreme Court

had determined that jeopardy attached long before the

rendering of a verdict.

14

 The delegates' discussion revolved solely around

conforming the language regarding when jeopardy attached to

the interpretation the Michigan courts had given it:

Mr. Stevens: Mr. Chairman and delegates, the
original wording of this was: "No person, after
acquittal upon the merits, shall be tried for the
same offense." The Supreme Court of Michigan,
however, has virtually held that this means the
same thing as the provision in the federal
constitution,[13] which is what we have put in: "No
person shall be subject for the same offense to
be put twice in jeopardy."

It is true that in the opinion of some of
the jurists of the state this might make it a
little bit easier for the state to appeal in some
cases. Otherwise it makes no difference except it
brings the provision of the constitution more
clearly into the practice of this state. [1
Official Record, Constitutional Convention 1961,
p 539.]

And later, Delegate Stevens noted:

You would think from reading this, probably—
and that is a matter of clarification—a layman
might think that only after a person has been
acquitted on the merits has he been put in
jeopardy. That is not the fact under the
decisions of the Michigan supreme court. He is
better protected than that. There is nothing in
here that I believe can be construed to in any
way delete or reduce the rights of the defendant.
[1 Official Record, Constitutional Convention
1961, p 540.]

13
Interestingly, while this characterized the Michigan
provision as meaning "virtually . . . the same thing as the
provision in the federal constitution" with regard to when
jeopardy attached, the Harding Court made no reference to
the federal constitution. Its holding was grounded in our
state's unique constitutional history.

15

 Reference was made to the similarity between the

proposed provision and the language of the United States

Constitution, the delegates noting that "[t]he wording

which we propose is that which is found in the vast

majority of state constitutions." 1 Official Record,

Constitutional Convention 1961, p 540 (Delegate Danhof).

However, nothing suggests that they meant by the similarity

in wording that all aspects of the Double Jeopardy Clause

would be construed the same as other sovereigns’ clauses,

either then or afterward.

The only discussion at the convention centered on

conforming the language of Michigan's Double Jeopardy

Clause to the interpretation Michigan courts had given to

that language. Silence regarding other aspects of the

protection should not be construed to mean that the

delegates considered federal case law the definitive

authority regarding the meaning of our state provision.

Rather, this silence should be taken to mean what it more

likely signifies: a lack of consideration of any of the

aspects of double jeopardy protection beyond the question

of when jeopardy attaches.

This specific concern was carried through to the

people when they voted on the new constitution. The Address

to the People contains the following language:

16

 This is a revision of Sec. 14, Article II,
of the present constitution. The new language of
the first sentence involves the substitution of
the double jeopardy provision from the U.S.
Constitution in place of the present provision
which merely prohibits "acquittal on the merits."
This is more consistent with the actual practice
of the courts in Michigan. [Emphasis added.]

In addition, the preface to the Address to the People

states, "Traditional liberties and rights of the people

were carefully reviewed and changes made are in the

direction of clarifying and strengthening them." (Emphasis

added.)

Given the full history of our constitution, and the

history of the 1961 constitutional convention, several

things are clear. First, the sole concern in revising the

Double Jeopardy Clause in our state constitution was to

clarify that jeopardy attaches when a jury is sworn, as our

courts had interpreted. It does not attach when a verdict

is issued, as appeared from the language of the 1908

Constitution. Second, the language regarding the United

States Constitution in the Address to the People simply

informs us from where that language was derived.

The change in the Double Jeopardy Clause in the 1963

Constitution did not signal the people's intent to adopt

the United States Supreme Court's interpretation of all

aspects of double jeopardy protection, past and future.

17

Instead, the people intended to ratify what the Michigan

courts had already held with regard to when jeopardy

attaches.

Despite the history outlined above, the majority in

People v Nutt14 took this language to mean that the people

intended to adopt the federal interpretation of the Double

Jeopardy Clause. It assumed that the people knew what the

United States Supreme Court had interpreted the federal

Double Jeopardy Clause to mean, and that they agreed with

it. It assumed that they were willing to accept all future

interpretations that the federal courts applied to it. It

assumed that they willingly gave away their sovereignty as

a people and as a state by allowing the federal government

to interpret our constitution for us.

I cannot agree with all those assumptions. I do not

presume that the voters of our state intended that

Michigan’s Double Jeopardy Clause would be interpreted

exactly as the federal provision is interpreted.

I have reviewed our common-law history before we

became a state, our state's constitutional history, and the

language in the Address to the People. It has become

obvious to me that the people intended that the language of

14
469 Mich 565; 677 NW2d 1 (2004).

18

the state Double Jeopardy Clause was intended to mean what

Michigan courts had said it means. See Harding, supra.

The holding in Cooper was grounded on the Michigan

Constitution. This was specifically recognized in People v

Gay,15 in which the Cooper decision was reaffirmed and given

retroactive effect. As Justice Levin noted, Cooper was a

“reasoned and careful” analysis of the state constitution.

People v Mezy, 453 Mich 269, 299; 551 NW2d 389 (1996)

(Levin, J, dissenting).

Cooper protects the rights of Michigan's citizens.

Unlike federal jurisprudence, it requires that the

government balance those individual rights with the state's

interest in preserving the public peace and protecting the

public safety. Cooper held that Michigan's rights as a

sovereign were generally vindicated when a defendant was

brought to justice in another jurisdiction. But, it also

recognized that there would be times when another

sovereign's prosecution would not validate Michigan's

interests. In those rare cases, Cooper allowed a successive

prosecution:

Const 1963, art 1, § 15 prohibits a second
prosecution for an offense arising out of the
same criminal act unless it appears from the
record that the interests of the State of

15
407 Mich 681, 710-711; 289 NW2d 651 (1980).

19

 Michigan and the jurisdiction which initially
prosecuted are substantially different. Analysis
on a case-by-case basis cannot be avoided.
[Cooper, supra at 461.]

The balancing test of Cooper protects a person’s

rights "to avoid (1) continued embarrassment, expense and

ordeal; (2) being compelled to live in a continuing state

of anxiety and insecurity; and (3) the possibility that

even though innocent he may be found guilty through

repeated prosecutions." Cooper, supra at 460, citing United

States v Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed 2d

232 (1975), and Green v United States, 355 US 184, 187-188;

78 S Ct 221; 2 L Ed 2d 199 (1957).

The facts that a court should consider in applying the

Cooper balancing test include

whether the maximum penalties of the statutes
involved are greatly disparate, whether some
reason exists why one jurisdiction cannot be
entrusted to vindicate fully another
jurisdiction's interests in securing a
conviction, and whether the differences in the
statutes are merely jurisdictional or are more
substantive. [Cooper, supra at 461.]

The Cooper Court’s rejection of the dual sovereignty

doctrine as a basis for allowing successive prosecutions,

without reference to the defendant's fundamental interest

in being free from double jeopardy, was unanimous.16

16
Justice Coleman concurred in the result, but
believed that Michigan should apply the “same-elements”

20

 The majority uses Heath to attack the holding in

Cooper. But Cooper does not rest on the decisions of the

United States Supreme Court interpreting the federal

constitution. It rests on the Michigan constitution. It

depends on balancing the interest of the state in curbing

criminal activity with the liberty interests of those

within its jurisdiction. Gay, supra at 693-694.

As discussed, this is perfectly consistent with the

intent of the 1961 constitutional convention delegates and

with the intent of the people. Given the rejection of the

Bartkus one-sided approach to dual sovereignty, later cases

such as Heath that apply the same one-sided approach have

no bearing on whether Cooper was correctly decided. The

Cooper rule is necessary to protect the individual's

interest, as well as the state's interest in rare cases

where the state’s interest is not vindicated by another

sovereign’s prosecution.

The defendant here is being forced to undergo multiple

ordeals when he should be able to rely on the finality of

his prosecution in Kentucky. He had an expectation that his

guilty plea in Kentucky would end governmental action

test for determining when successive prosecutions are
brought for the same offense. Cooper, supra at 463 (COLEMAN,
J., concurring). In Gay, the Court unanimously agreed that
the Cooper decision was entitled to retroactive
application.

21

against him involving the car theft. Instead, the Kentucky

guilty plea can now be used against him in the Michigan

proceeding. Defendant will again be punished for the same

activity for which he has already been punished in

Kentucky.

Cooper specifically directs a case-by-case inquiry of

whether the state’s interests have been met. Cooper, supra

at 461. It allows successive prosecutions when the

interests of the two states are substantially different.

The court considers the maximum penalties available, facts

indicating that the other jurisdiction cannot be trusted to

vindicate fully Michigan’s interests, and whether the

statutory differences are substantive or "merely

jurisdictional." Id.

There is no evidence in the record before us that

Michigan’s interests have not been adequately protected by

the proceedings in Kentucky. Defendant pleaded guilty in

Kentucky to attempted theft of property having a value of

more than $300. He was sentenced to one year’s probation.

Defendant is charged in Michigan with UDAA and

receiving stolen property worth $1,000 or more. These

crimes are felonies punishable by not more than five years’

imprisonment. Similarly, the Kentucky statute makes theft

of property with a value of more than $300 a felony

22

punishable by not more than five years’ imprisonment. See

Ky Rev Stat Ann 514.030 and 532.020(1)(a).

To conserve trial resources, Michigan prosecutors

frequently offer a "plea bargain" to a defendant to plead

guilty to a lesser offense. The Kentucky prosecutor’s

willingness to offer defendant a plea to a lesser offense

cannot be said to undermine our state’s interests.

Furthermore, the Michigan prosecutor in this case does not

argue that Michigan’s interests were compromised.

The facts of this case serve to show that Cooper is

not, in fact, unworkable. The interests sought to be

protected by each state's law are not substantially

different. The interests of the state of Michigan are amply

protected, while the interests of the individual are not

ignored. The Double Jeopardy Clause was written not to

protect the state or federal government, but to protect the

individual.

To hold that Michigan will allow prosecution in our

state after a federal or sister state prosecution for the

identical act is to embrace a system of constitutional

duality. It enables a state to pursue a person who either

has been found innocent or has paid the price for his crime

to another sovereignty. To harass the innocent, the

acquitted, or the guilty person who has paid the price for

23

a crime in money or freedom is not compatible with

constitutionally legitimate state action. To the contrary,

it is at just such harassment that our state constitution

takes aim.

The policy that weakens double jeopardy protections is

not validated because both state and federal sovereignties

combine to embrace it. It is incongruous to allow a

state’s basic constitutional policy, one integral to its

sovereignty, to be frustrated as a consequence of the

duality that allows that state to exist. Furthermore, it

is inconsistent and ironic to use that federalism, which

has been justified in the name of protecting freedom, to

obliterate a fundamental right.

Rarely are Michigan's interests not vindicated after

one fair test of guilt. Normally, the cause of justice is

not served in the second pursuit of one who has been

subjected to jeopardy for the same act in a different

jurisdiction. To hold otherwise is to require an accused

either to prove innocence twice or to pay twice for the

same offense. The sole rationale for it is that the acts

complained of took place where two layers of government

coincide.

24

 For almost thirty years, Cooper and its progeny have

protected citizens and others subject to the jurisdiction

of this state from the risk of

(1) continued embarrassment, expense and ordeal;
(2) being compelled to live in a continuing state
of anxiety and insecurity; and (3) the
possibility that even though innocent [we] may be
found guilty through repeated prosecutions.
[Gay, supra at 694, citing Wilson, supra at 343,
and Green, supra at 187-188.]

See also People v Herron, 464 Mich 593, 601; 628 NW2d 528

(2001). Cooper correctly held that Michigan’s Double

Jeopardy Clause protects us from multiple prosecutions for

the same crime. That protection exists as long as the

state’s interest is protected by a prosecution for the

crime in another state or by the federal government. The

Court in Cooper did not need to find a "different history

behind Michigan’s adoption of a double jeopardy bar"17 to

conclude that the Michigan Constitution protects us from

multiple prosecutions for a single crime. As explained,

that protection has been a bedrock principle of our common

law for decades.

IV. Fourteenth Amendment Due Process

The right to be free from double jeopardy is a

fundamental right

17
Ante at 7.

25

 deeply ingrained in at least the Anglo-American
system of jurisprudence . . . . [T]he State with
all its resources and power should not be allowed
to make repeated attempts to convict an
individual for an alleged offense, thereby
subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing
state of anxiety and insecurity, as well as
enhancing the possibility that even though
innocent he may be found guilty. [Green, supra at
187-188.]

As Justice Black once observed, "double prosecutions for

the same offense are so contrary to the spirit of our free

country that they violate even the . . . Fourteenth

Amendment." Bartkus, supra at 150-151 (Black, J.,

dissenting).

Justice Black recognized that, from an individual’s

perspective, multiple punishments inflict the same

injustice whether levied by officers wearing one uniform or

several. "In each case . . . [one] is forced to face

danger twice for the same conduct." Bartkus, supra at 155

(Black, J., dissenting).

It is incompatible with fundamental justice that a

person who has already faced trial in another court system

should again be exposed to jeopardy in Michigan's courts.

The dual threat from the single act is "repugnant to the

conscience of mankind." See Palko, supra at 323. If the

essence of due process, fairness, is to be recognized, one

of its features must be this guarantee: a person may be

26

exposed to the gauntlet of criminal proceedings only once

for the same misconduct.

It does not matter to the individual that two separate

sovereigns are responsible for the proceedings. What

matters is that the government has resources and power the

individual does not. Therefore, the government should not

be

allowed to make repeated attempts to convict an
individual for an alleged offense, thereby
subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing
state of anxiety and insecurity, as well as
enhancing the possibility that even though
innocent he may be found guilty. [Green, supra at
187-188.]

The Due Process Clause of the Fourteenth Amendment of

the United States Constitution requires a recognition that

subjecting an individual to a second trial violates the

fundamental fairness due every citizen of the United

States.

V. The Doctrine of Stare Decisis

"[S]tare decisis 'promotes the evenhanded,
predictable, and consistent development of legal
principles, fosters reliance on judicial
decisions, and contributes to the actual and
perceived integrity of the judicial process.'"
[United States v Int'l Business Machines Corp,
517 US 843, 856; 116 S Ct 1793; 135 L Ed 2d 124,
(1996), quoting Payne v Tennessee, 501 US 808,
827; 111 S Ct 2597; 115 L Ed 2d 720 (1991). See
also People v Petit, 466 Mich 624, 633; 648 NW2d
193 (2002).]

27

To overturn a previous decision of this Court, we must be

convinced that it was wrongly decided. In addition, we

must conclude that greater injury will result from adhering

to it than from correcting it. Petit, supra at 634, citing

McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006

(1904). A departure from precedent must be based on a

"'"special justification."'" Dickerson v United States,

530 US 428, 443; 120 S Ct 2326; 147 L Ed 2d 405 (2000),

quoting Int'l Business Machines Corp, supra at 856, quoting

Payne, supra at 842 (Souter, J., concurring), quoting

Arizona v Rumsey, 467 US 203, 212; 104 S Ct 2305; 81 L Ed

2d 164 (1984).

Nine years ago, Justice Weaver's lead opinion in Mezy

indicated a desire to overrule Cooper. Her position did

not gain the support of a majority of the justices. The

only change that could explain today’s decision to overrule

Cooper is the change in the make-up of this Court. Justice

LEVIN'S criticism in Mezy18 of the lead opinion's desire to

overrule Cooper is just as applicable today as it was when

18
Because three justices indicated that they would
overrule Cooper even though reaching the issue was
unnecessary, three other justices explained why they would
not overrule the case. Justice Brickley simply indicated
that Cooper need not be addressed by the Court.

28

written. There has been no intervening showing that Cooper

was clearly erroneous.

The majority claims that Cooper is bad law. Its

reason is that the Cooper Court did not apply the doctrine

of dual sovereignty as articulated by the United States

Supreme Court and that it misconstrued where the United

States Supreme Court was headed.

Yet, although Cooper alluded to the track the United

States Supreme Court appeared to be taking, it specifically

noted that its decision was based on the Michigan

Constitution. This majority's constrictive reading of the

double jeopardy rights our constitution provides disagrees

with the Cooper approach. It overrules Cooper without

showing in what respect the Cooper analysis of our state

Double Jeopardy Clause is wrong.

This lack of an explanation is understandable when one

considers that there is nothing unworkable about Cooper.

The majority asserts that less injury will result from

overruling Cooper than from allowing it to stand. I

believe that less injury will result only if one assumes

that everyone accused of a crime is guilty. More injury

will result to those our criminal justice system has been

created to protect, those who are falsely accused.

Hereafter, if one sovereign prosecutes and the accused is

29

found not guilty, the sovereign may work with Michigan to

achieve what it could not, secure conviction.

The majority's approach ignores the fact that, by

overruling a dozen or more cases each term, it destablizies

our state's jurisprudence. It suggests to the public that

the law is at the whim of whoever is sitting on the Supreme

Court bench. Surely, it erodes the public's confidence in

our judicial system. Less harm would result from retaining

Cooper than from reversing it.

VI. Conclusion

Because I believe that Cooper provides the correct

framework, based on the Michigan Constitution, for

resolving double jeopardy concerns, I would affirm the

decision of the Court of Appeals.

I disagree with the majority that Cooper must fall.

The Cooper decision was not incorrect when it was decided

or when its holding was unanimously reaffirmed by this

Court in Gay. It is not incorrect today. Greater

injustices will come from its abandonment than from its

retention.

One cannot but wonder if this departure from precedent

will encourage the people of Michigan to "adjust themselves

to all other violations of the Bill of Rights should they

30

be sanctioned by this Court." Bartkus, supra at 163

(Black, J., dissenting).

Overturning Cooper strikes at the integrity of our

justice system. It represents a greater threat to public

security than it does a protection from criminals. The

decisions in Cooper and Gay and the Court of Appeals

decision in this case should be upheld.

Marilyn Kelly

31

 S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 125436

GEVON RAMON DAVIS,

Defendant-Appellee.

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CAVANAGH, J. (dissenting).

I concur with the result reached by Justice Kelly in

her dissent. I also fully concur with the reasoning

articulated in parts IV, Fourteenth Amendment Due Process,

and V, The Doctrine of Stare Decisis, of Justice Kelly’s

opinion.

Michael F. Cavanagh