Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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**  **Clause 1**  **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 Cooper **2 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 $8,2**  **00, 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 Constitution**  **6 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 t**  **hat 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] b e 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 d ecision 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 Mich igan’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 justices 17**  **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 pre vent 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 Cooper 1 **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 Illinois 2 **that the Fifth A mendment's Double Jeopardy**  **Clause 3**  **allows successive prosecutions by the federal and state governments.** 
**But** Bartkus **rests on a quest ionable 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., dis senting), 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), quotin g 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 fo r the Court, Justice C**  **OOLEY 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 en**  **umerated 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 Nutt 14 **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 (C OLEMAN**  **, 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 a**  **re 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 Co nstitution 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 observ ed, "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**

**L EVIN**  **' S**  **criticism in** Mezy 18 **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**