Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

June 28, 2010

Rehearing No. 563

1 December 8

136648

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 136648 COA: 277012 Wayne CC: 06-013878-01 EDWIN DEWAYNE RICHMOND, Defendant-Appellant.

___________________ ___________________

On order of the Court, the prosecution’ s motion for rehearing of this Court’s opinion, 486 Mich 29 (2010), is GRANTED in part. We grant the prosecution’s request for clarification about how it may proceed ag ainst defendant in light of this Court’s

decision.

The prosecution may refile the charges agains t defendant and, if necessary, file an interlocutory appeal to cha llenge the underlying suppression ruling. As the dissent in

Richmond explained, the circuit court’s suppre ssion ruling is subject to correction because of the intervening change in the law occasioned by our decision in People v

Keller , 479 Mich 467 (2007). Slip op at 3-4. See also Freeman v DEC Int'l, Inc , 212 Mich App 34, 38 (1995) (excepti on to law of the case doctrine); People v Johnson , 191 Mich App 222, 225 (1991) (exc eption to collateral estoppel doctrine). This Court’s opinion vacates the Court of Appeals’ decisi on, which corrected the circuit court’s ruling in light of Keller , on jurisdictional grounds, not on the merits.

The prosecutor’s original decision to dism iss the case to seek appellate review was, at most, a procedural misstep that did not reach the merits of her case. Moreover, we note that the prosecutor has non-frivolous arguments such that she can appropriatelyI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk June 28, 2010 2

seek to reinstate her case. The comments to MRPC 3.1 define “fri volous” as “an action taken primarily for the purpose of harassing or maliciously in juring a person.” In light of the intervening cha nge in the law in Keller , in view of the fact that the prosecutor has

received a unanimous Court of Appeals decision in her favor, and in view of the clarifying nature of the instant decision, we believe that reasonable arguments remain available to the prosecutor to explain wh y reinstatement of charges under these circumstances is appropriate.

In all other respects, the mo tion for rehearing is DENIED.

C ORRIGAN , J. ( concurring in part an d dissenting in part ).

I would grant the prosecution’s motion fo r rehearing, and upon rehearing, would

affirm for the reasons stated in my dissenting opinion in People v Richmond , 486 Mich 29, 42 (2010). As the prosecutor suggests in her motion for rehearing, the majority opinion in Richmond creates an absurd situation: a prosecutor may accept a dismissal of charges but may not move for such a dismissal without re ndering the case “moot.” When a prosecutor maintains legally cognizable and live interests that can be vindicated only through appellate review, whether a claim is “moot” does not arbitrarily turn on whether the prosecutor, rather than the defendant or th e trial court, moves to dismiss the case.

I concur in the Court’s order of clarific ation, however, because I agree that the prosecution may proceed in the manner explai ned in the order. The prosecutor clearly has a non-frivolous case that she rightfully wishes to pursue. Thus, where double jeopardy grounds do not bar it, this order preserves a pros ecutor’s statutory right of appeal and ensures that the administration of justice wi ll not be forever thwarted by the

rule created in Richmond

.

K ELLY , C.J. and C AVANAGH , JJ., would deny rehearing.