Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathawa y A lton Thomas Davis,
J ustices 

# Order

November 5, 2010

140522

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 140522 COA: 293861 Wayne CC: 09-004275-FC RODNEY CARTER, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the December 10, 2009 order of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we REMAND this cas e to the Wayne Circuit Court to determine

whether a violation of the mootness do ctrine occurred in this case, see People v Richmond, 486 Mich 29 (2010), and, if so , to order proper relief. See id . and People v Richmond, rehearing granted in part , 486 Mich 1041 (2010).

M ARKMAN , J. ( concurring ).

I concur with this Court’s order remanding to the trial court to determine whether

a violation of the mootness doctrine occurred in this case, and, if so, to order the proper

relief. In People v Richmond, 486 Mich 29, 32 (2010), we held that “the prosecution’s voluntary dismissal of the charges rendered its a ppeal moot . . . .” Here, in proceedings that predated Richmond, but which, needless to say, did not predate the mootness doctrine, see, e.g., Anway v Grand Rapids R Co , 211 Mich 592, 610 (1920), the prosecutor voluntarily dismissed the case after a district court suppression ruling, thereby rendering moot his appeal to the circuit cour t. As explained belo w, I see no reason to deviate from the general rule giving Richmond “full retroactive effect.” Pohutski v City of Allen Park , 465 Mich 675, 696 (2002).

First, I am not persuaded by the dissent’s assertion that the prosecutorial practice

at issue here was “routine before Richmond .” If so, it is hard to understand why

Richmond would have been the first case ever to specifically address this practice, and, indeed, in at least my eleven years on this Court, the first case in which the practice was even presented to this Court. Were this a genuinely co mmonplace procedure, it does2

seem as if the obvious mootness question invol ved would have at least been engaged at some previous juncture in the appellate system. Moreover, the prosecutor in Richmond

, representing the largest county in this state, himself has ack nowledged that the “dismissthen-appeal” procedure was employe d on only the “rare occasion.”

Second, our general princi ples of retroactivity su pport the application of Richmond

in this case

. Generally, “judicial decisions are given full retroactive effect.” Pohutski

, 465 Mich at 696. In determining whethe r a judicial decision should be applied retroactively, this Court consid ers: “(1) the purpose to be served by the new rule; (2) the extent of reliance on the old rule; and (3) the effect of retroactivity on the administration of justice.” Id. The purpose of Richmond is to preserve and enforce the long-standing rule that courts do not reach moot ques tions. Whatever its supposed prevalence preRichmond , the “dismiss-then-appeal” procedure wa s never authorized by any judicial decision or court rule of this state, and it clearly violated the mootness doctrine, a wellunderstood doctrine of justicia bility that consid erably preceded Richmond . Thus, I neither believe that the “dismiss-then-appeal ” procedure can fairly be deemed an “old rule,” nor that taking the mootness doctrine seriously can be deemed a “new rule.”

Further, I do not believe that applying Richmond retroactively could in any conceivable way be described as having an adverse effect on the “administration of justice,” especially since, as ou r order on rehearing clarified, People v Richmond , 486 Mich 1041 (2010), the prosecutor under th e instant circumstances can recharge the

defendant. The dissent’s co ncerns in this regard, incl uding its concern about any violation of the Michigan Rules of Professi onal Conduct, are fully addressed in that order, which was joined by the dissenting justices. To furthe r ensure that there is no adverse impact upon the “administration of jus tice,” this Court has determined to review this matter again at a future administrative conference. In light of these facts, in my view, refusing to apply Richmond retroactively would have a far worse impact on the “administration of justice,” by (a) allowi ng the prosecutor to evade the mootness doctrine, (b) by allowing a conviction to stand even though th e underlying case has already been dismissed, and (c) by undermining the author ity and credibility of the precedents of this Court.

In sum, there is no reason to de viate from the general rule giving Richmond “full

retroactive effect.” 1 Because it appears that defendant is entitled to relief under

Richmond and our principles of retroactivity, I fully concur with the Court’s order.

1 The dissent argues that Richmond should be given limited retroactive effect, citing People v Cornell, 466 Mich 335, 367, in which we acc orded limited retroactive effect to cases pending on appe al in which the Cornell issue had been preser ved. However, as the dissent itself appears to recognize, Cornell’s standards are inapt because “as Richmond involves the application of the mootness doctrine, and the mootness doctrine is jurisdictional, prior preserva tion is unnecessary.” The di ssent nevertheless would limit3

C ORRIGAN , J. ( dissenting ).

I respectfully dissent from the Court’s or der remanding to the trial court to

determine whether a violation of the mootness doctrine occurred in light of People v

Richmond , 486 Mich 29 (2010). The conc urring justice supports giving Richmond full retroactive effect, yet the other justices in th e majority have not clarified their view when perhaps they should. As a result, I ask whether this Court intends Richmond to apply

with full retroactive effect or wh ether it is leaving this determin ation to the trial court. In any case, I believe that giving Richmond full retroactive effect is improper under our retroactivity standards and will cause substantial problems for the effective administration of justice. Accordingly, I support limiting the retroactive effect of

Richmond to cases pending on appeal when Richmond was decided. See People v
Cornell , 466 Mich 335, 367 (2002) (applying limited retroactivity to those cases pending on appeal in which the issue ha s been raised and preserved). 2

After an unfavorable evidentiary ruling resulting in the suppression of evidence, the prosecutor, acting under pr ocedures routine before Richmond , moved for dismissal.

The record reflects that the district court assu red the parties that the issues were preserved

under the circumstances. Defense counsel explicitly indicated no objection on the

record. 3 In treating any appeal af ter a voluntary dismissal by the prosecutor as moot, this Court has nullified a routine practice and pla ced prosecutors in an untenable position.

See Richmond , 486 Mich at 42-48 (C ORRIGAN

, J., dissenting). The Richmond majority, in its characterization of this pr actice as a “procedural misstep,” Richmond , 486 Mich at

Richmond’s retroactive effect to case s pending on appeal because Richmond “created a new rule.” For the reasons earlier explaine d, I respectfully disagree that taking the mootness doctrine seriously, and applying it consistently, can in any way be deemed a

“new rule.”

2 As Richmond involves the application of the mootness doctrine, and the mootness doctrine is jurisdictional, prior preservatio n is unnecessary. Nevertheless, because I

believe that Richmond created a new rule, I su pport limiting its retroactive effect to cases pending on appeal when Richmond was decided.

3 Specifically, the following exchange took place:

Prosecutor : Your Honor, if the Court ha s suppressed the evidence we’re unable to proceed in this matter and w ould be forced to dismiss the case.

Defense Counsel : No objection.

The Court : The matter will be dismissed at this time. And I know that issues relative to appeal are pr eserved under the circumstances.

Defense Counsel : Thank you very much. [Preliminary Examination Transcript, July 30, 2007, p 18.]4

40, evidenced disbelief that a ny such practice ever existed. But see Gillespie, Michigan

Criminal Law and Procedur e Practice Deskbook (2d ed, 2010), § 1:36, p 19, and Gillespie, Michigan Criminal Law and Pr ocedure Practice Deskbook (2d ed, 1998), § 1:30, pp 16-17 (acknowledging the use of this practice as pa rt of a stipulated dismissal necessitated by a dispositive evid entiary ruling). Nevertheless, by refusing to grant leave, the majority now forecloses any additional pr oofs about such a pr actice and eliminates the possibility of learning wh ether the rule adopted in Richmond is indeed a new rule.

Beyond the disturbing gamesmanship that Richmond permits for defendants and judges seeking to insulate a suppre ssion decision from appellate review, if Richmond is given full retroactive effect, it likely will encourage numerous motions under MCR 6.500 for relief from judgment from prev iously convicted defendants seeking to challenge their convictions in circumstances where an appeal followed a prosecutor’s dismissal. Such belated challenges, in which the relevant evidence may be missing or may have been destroyed, could result in the wrongful revers al of many otherwise valid convictions. By not taking action to accord Richmond limited retroactive effect, the majority effectively invites future problems.

I. UNDERLYING FACTS

Following the execution of a search warrant for the house where defendant was staying, defendant was charged with possessi on with intent to deliver over 1,000 grams of cocaine, possession of over 1,000 grams of cocaine, and felony-firearm. At the preliminary examination, the district cour t granted defendant’s motion to suppress the

evidence on the basis th at the search warrant was deficien t. The prosecution then moved to dismiss the case. In granting the motion to di smiss, the district court stated that “issues relative to appeal” were preserved under thes e circumstances and defense counsel did not object or otherwise disagree in any way with the district court’s statement.

The prosecution subsequently obtained revi ew of the district court’s evidentiary

decision in the circuit court. The circuit cour t peremptorily reversed the district court’s

decision and remanded the case to the district c ourt. After rehearing the case, the district

court bound defendant over to the circuit cour t for trial. Defendant pleaded guilty to possession with intent to deliver over 1,000 grams of cocaine and felony-firearm. He then filed an application for leave to appeal with the Court of Appeals, which denied leave. Defendant subsequently filed an app lication for leave to appeal in this Court, arguing in part that the prosecu tion waived its right to an ap peal by voluntarily dismissing the case against him.

II. ANALYSIS

Because the relevant proceedings took pl ace before this Court’s opinion in

Richmond , the pertinent question is whether Richmond should be given retroactive effect.5

The general rule is that judicial decisions are give n full retroactive effect. Pohutski v City of Allen Park , 465 Mich 675, 695-696 (2002). Neverthe less, “a more flexible approach is warranted where injustice might result from full re troactivity.” Id . at 696. Three factors to be weighed in determining whether a decisi on should have retroactive application are: “(1) the purpose of the new rules; (2) the ge neral reliance on the old rule[;] and (3) the effect of retroactive appli cation of the new rule on the administration of justice.” People v

Sexton , 458 Mich. 43, 60- 61 (1998), citing People v Hampton , 384 Mich 669, 674 (1971). Other than the concurring justice, the majority does not answer the question of what type of retroactive effect is approp riate here. Regardless, I believe that the retroactivity factors weigh in favor of granting Richmond limited retroactive effect and against full retroactive application of Richmond

.

First, the decision in Richmond , which applies the mootness doctrine in circumstances of a prosecutor’s voluntary dismi ssal, created a new rule in applying this doctrine to a previously routin e practice. The majority in Richmond noted that one option available to prosecutors who op t to voluntarily dismiss in th is scenario is to simply reinstate charges. Richmond , 486 Mich at 36, n 3. Howeve r, this option is “problematic because it implies that the pr osecution could have simply ‘u nmooted’ the case at any time by reinstating the charges,” when, in fact, “M RPC 3.1 provides that ‘[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous.’” Richmond , 486 Mich at 45-46 (C ORRIGAN

, J., dissenting). Thus, the purpose of the new ru le would not be served by full retroactive application because it may place prosecutors wh o relied on the old rule in the untenable situation of either violating the MRPCs by reinstating charges or permitting a valid conviction to be wiped out.

Second, as the facts of this case show, the bench and bar previously relied on the former practice of voluntary dismissals in th e face of an unfavorable evidentiary ruling in criminal cases. See Gillespie , § 1:36, p 19. Here, the dist rict court, in granting the prosecution’s motion to dismi ss, explicitly noted that the issues were preserved for appeal. Although the rule th at courts cannot decide moot questions is longstanding, applying it to the circumstances in Richmond established a new rule. Further, the prior practice had general statutory authorization under MCL 770.12 (1), which explicitly gives the prosecutor an appeal as of right from a final order. Richmond , 486 Mich at 44 (C ORRIGAN

, J., dissenting). Thus, the significant reliance on the prior practice weighs against the full retro active application of Richmond

.

Third, if Richmond is given full retroactive eff ect it will negatively impact the efficient administration of justice. Vacatin g convictions retroactively in circumstances

where Richmond applies will place prosecutors at a d ecided disadvantage. In addition to the already stated issue in volving the MRPCs, because of the passage of time,I, 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 November 5, 2010

p1102 6

prosecutors likely will face significant ch allenges gaining access to the necessary

evidence and witnesse s. Moreover, if Richmond is applied with full retroactive effect, it will place even more of a burden on the alread y stressed resources of prosecutor’s offices and our judiciary, and of course, the wrongf ul release of convicte d criminals endangers our communities. Accordingly, I respectfu lly dissent from the Court’s order remanding

to the trial court to determin e whether a violation of the m ootness doctrine occurred in light of Richmond

.

Y OUNG , J., joins the statement of C ORRIGAN , J.