Michigan Supreme Court 

Lansing, Michigan 

Chief Justice:	 Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion 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 
_______________________________ 

 

v 

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, 

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 xixii. 

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
 
_______________________________ 

v 

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, 

No. 125436 

GEVON RAMON DAVIS, 

Defendant-Appellee. 

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