Order Michigan Supreme Court 

Lansing, Michigan 

May 9, 2008 Clifford W. Taylor,

 Chief Justice 

135232 & (14) Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

In re CONOR MICHAEL WILLIAMS, 

 Minor.

SC: 135232 

 COA: 279573

Robert P. Young, Jr. 

Stephen J. Markman,

 Justices Bay CC: 2006-009365-DL 

_________________________________________/ 

On order of the Court, the motion to add issues is DENIED. The application for 

leave to appeal the September 28, 2007 order of the Court of Appeals is considered, and 

it is DENIED, because we are not persuaded that the question presented should be 

reviewed by this Court. 

CORRIGAN, J., dissents and states as follows: 

I would grant the prosecutor’s application for leave to appeal or remand to the 

Court of Appeals for consideration as on leave granted. MCR 3.932, which authorizes a 

court to transfer a case to the consent calendar without the approval of the prosecutor, 

may violate the separation of powers doctrine.1

 MCR 3.932 intrudes upon executive 

power belonging to the office of the prosecutor, as well as the Legislature’s power to 

1

 MCR 3.932(C) provides, in relevant part: 

If the court receives a petition, citation, or appearance ticket, and it 

appears that protective and supportive action by the court will serve the best 

interests of the juvenile and the public, the court may proceed on the 

consent calendar without authorizing a petition to be filed. No case may be 

placed on the consent calendar unless the juvenile and the parent, guardian, 

or legal custodian agree to have the case placed on the consent calendar. 

The court may transfer a case from the formal calendar to the consent 

calendar at any time before disposition. 

* * * 

(7) Upon successful completion by the juvenile of the consent 

calendar case plan, the court shall close the case and may destroy all 

records of the proceeding. No report or abstract may be made to any other 

agency nor may the court require the juvenile to be fingerprinted for a case 

completed and closed on the consent calendar. 
 

 

2 

craft substantive law reflecting policy choices. Even in the absence of a separation of 

powers problem, however, the trial court abused its discretion in transferring the case to 

the consent calendar on the basis of its “philosophy” regarding sex offender registration 

requirements for juveniles, a philosophy that is 180 degrees opposite the legislative 

choice. MCL 28.724(5). I do not believe that the court’s decision is within the range of 

“principled outcomes” when it directly contradicts the statutory language. 

The prosecutor charged defendant with four counts of first-degree criminal sexual 

conduct (CSC I). The petition alleged that defendant, who was 13 years old, digitally 

penetrated his two younger half-sisters, who were 8 and 9 years old. He pleaded guilty in 

juvenile court to one count each of second-degree criminal sexual conduct (CSC II) and 

third-degree criminal sexual conduct (CSC III) in exchange for dismissal of the CSC I 

charges after being advised that he would have to register as a sex offender under the Sex 

Offenders Registration Act (SORA), MCL 28.724 et seq. for 25 years. It was later 

discovered that defendant would have to register for life under SORA.2 The court 

contacted the prosecutor’s office to ask whether it would amend the plea agreement to 

remove the lifetime-registration requirement. The prosecutor declined to do so. Failing 

to convince the prosecution to change its plea agreement, the trial court transferred the 

case to the consent calendar. The prosecution objected to the transfer. Nevertheless, the 

court proceeded to undo the plea and place the matter on the consent calendar. 

The trial court’s decision to transfer defendant to the consent calendar over the 

prosecutor’s objection subverted the prosecutor’s discretion to decide the terms of a plea 

agreement and to enforce the statutory requirements under SORA. The Court has 

addressed court interference with prosecutorial discretion on two occasions. In Genesee 

Prosecutor v Genesee Circuit Judge, 386 Mich 672 (1972) (Genesee Prosecutor I), the 

prosecutor challenged the trial court’s ability, over the prosecutor’s objection, to accept a 

plea to an offense that was not charged or to a lesser included offense. The defendant 

was bound over to the circuit court after a preliminary examination to stand trial on an 

information charging possession of a stolen motor vehicle in violation of MCL 257.254. 

Id. at 676. On the day of trial, the court granted defendant’s motion to plead guilty of 

unlawfully driving away the automobile of another in violation of MCL 750.413, an 

offense that was not charged or a lesser included offense of MCL 257.254. Id. Before 

accepting the plea, the court asked the prosecutor whether he objected to the plea 

agreement. The prosecutor indicated he did object because the facts supported the charge 

as originally bound over and that charge was a more serious offense than the typical “joy 

riding” case covered by MCL 750.413. Id. The court overruled the prosecutor’s 

objection. Id. During the plea taking procedure, after listening to defendant’s recitation 

of his criminal actions, the court stated, “Actually, you are really guilty of the higher 

offense, but the court will accept your plea to the lesser offense.” Id at 677. 

2

 MCL 28.725(8)(b) requires lifetime registration for CSC II. 
 

3 

The prosecution sought a writ of superintending control from the Court of 

Appeals, challenging the trial court’s ability to accept a plea, over the prosecutor’s 

objection, to an offense not charged or to a lesser included offense. The Court of Appeals 

dismissed for lack of jurisdiction.3

 We granted leave, noting that “[w]hether the trial 

judge may amend an information and accept a plea sua sponte and over the objection of 

the prosecutor raises the question of constitutional separation of powers between the 

judicial and executive branch.” Id. at 682. The Court explained that 

[t]he prosecutor is a constitutional officer whose duties are provided by 

law. The conduct of a prosecution on behalf of the people by the 

prosecutor is an executive act. . . . [T]he prosecutor is the chief law 

enforcement officer of the county and has the right to exercise broad 

discretion in determining under which of two applicable statutes a 

prosecution will be instituted. [Id. at 683 (citations omitted).] 

A judge may not act as prosecutor, judge and jury. Id. “For the judiciary to claim power 

to control the institution and conduct of prosecutions would be an intrusion on the power 

of the executive branch of government and a violation of the constitutional separation of 

powers. Id. at 684. Concluding its opinion, the Court noted that “[i]n . . . holding that the 

judge here acted without authority we express no opinion on the propriety of accepting a 

plea over the objection of the prosecutor where both offenses are charged by the 

prosecutor, nor do we express an opinion on the propriety of accepting a plea over the 

objection of the prosecutor to an offense which is a lesser included offense.” Id. at 684-

685 (emphasis in original). 

The Court had the opportunity to address those issues not reached in Genesee 

Prosecutor I in Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115 (1974) 

(Genesee Prosecutor II). Specifically, the case addressed whether the court, over the 

prosecutor’s objection, may accept a plea of guilty to one count of a multi-count 

information and whether, over objection, the court may accept a plea of guilty to a lesser 

included offense. In Genesee Prosecutor II, an information was filed charging that 

defendant did “kill and murder” another person. Over the prosecutor’s objection, the 

court accepted the defendant’s plea of guilty of the offense of manslaughter. Id. at 118. 

In granting the prosecution’s complaint for superintending control, this Court held 

that: 

A circuit judge does not enjoy supervisory power over a prosecuting 

attorney. He may reverse a magistrate’s decision only for abuse of 

3

 This Court held that the Court of Appeals had jurisdiction to entertain the complaint for 

superintending control for the purpose of determining whether the trial judge acted 

without jurisdiction or in excess of jurisdiction. Id. at 682. 
 

4 

discretion. He may not properly substitute his judgment for that of the 

magistrate or prosecuting attorney as if he were reviewing the magistrate’s 

decision de novo or acting in a supervisory capacity with respect to the 

prosecuting attorney. He may reverse or revise their decisions only if it 

appears on the record that they have abused the power confided in them. 

[Id. at 121.] 

Because testimony tended to show that the defendant shot the victim once while the 

victim was standing and a second time five seconds after he had fallen to the ground, this 

Court held that the prosecutor did not exceed his power in refusing to authorize a plea of 

guilty of manslaughter. Id. at 122. The Court set aside the defendant’s plea and the 

sentence imposed. Id. at 123. It remanded for trial on the information charging him with 

the offense of manslaughter and murder. Id. 

The present case involves virtually the same problem presented in Genesee 

Prosecutor I and Genesee Prosecutor II–interference with prosecutorial discretion, in 

violation of the separation of powers doctrine. MCR 3.932 encourages unconstitutional 

interference by judges with the executive powers of prosecutors because it allows a trial 

court to transfer a case to the consent calendar even when a prosecutor objects to the 

transfer. MCR 3.932(C) only provides that “[n]o case may be placed on the consent 

calendar unless the juvenile and the parent, guardian, or legal custodian agree to have 

the case placed on the consent calendar.” (Emphasis added.) The court rule has no 

regard for the charging official’s executive decision. In this case, the trial judge 

disregarded the prosecution’s objection to placing defendant’s case on the calendar. This 

judicial action, even if allowed under the court rules, improperly encroached on the 

executive power vested in the prosecution. 

MCR 3.932(C) may well also violate the separation of powers between the judicial 

and legislative branches as applied in this case. In McDougall v Schanz, 461 Mich 15 

(1999), the Court addressed whether MCL 600.2169 (qualifications for expert witnesses 

in medical malpractice claims) impermissibly infringed on the Court’s rule-making 

authority to promulgate court rules on practice and procedure. The Court determined that 

the Legislature intended that § 2169 would often compel different qualification 

determinations than MRE 702. Id. at 25. Because § 2169 and MRE 702 clearly 

conflicted, the Court had to determine whether the statute impermissibly infringed on the 

court's constitutional authority to enact rules governing practice and procedure. Id. at 26. 

The Court concluded that § 2169 was substantive law, and thus it did not impermissibly 

infringe on the court's constitutional rule-making authority. Id. at 37. 

In so holding, the Court noted that “[i]t is beyond question that the authority to 

determine rules of practice and procedure rests exclusively with this Court. Indeed, this 

Court’s primacy in such matters is established in our 1963 Constitution.” Id. at 26. At 

the same time, the Court is not authorized to enact court rules that “establish, abrogate, or 
 

5 

modify the substantive law.” Id. at 27. Therefore, if a court rule contravenes a 

legislatively declared principle of public policy, the court rule should yield. Id. at 31. 

On its face, MCR 3.932 does not necessarily contravene a legislatively declared 

principle of public policy. Nevertheless, in its application, as demonstrated by the 

present case, it can impermissibly invade the providence of the Legislature. In MCL 

28.721a, the Legislature made a very clear statement regarding the policy considerations 

undergirding the requirements of SORA: 

The legislature declares that the sex offenders registration act was 

enacted pursuant to the legislature's exercise of the police power of the state 

with the intent to better assist law enforcement officers and the people of 

this state in preventing and protecting against the commission of future 

criminal sexual acts by convicted sex offenders. The legislature has 

determined that a person who has been convicted of committing an offense 

covered by this act poses a potential serious menace and danger to the 

health, safety, morals, and welfare of the people, and particularly the 

children, of this state. The registration requirements of this act are intended 

to provide law enforcement and the people of this state with an appropriate, 

comprehensive, and effective means to monitor those persons who pose 

such a potential danger. 

In order to implement this stated policy, the Legislature enacted MCL 28.725(7)(b), 

which requires lifetime registration for CSC II. MCL 28.724(5) expressly applies the 

registration requirements to juveniles. Transfer to the consent calendar, however, allows 

defendant to avoid SORA requirements by removing him from the adjudicative process. 

This thwarts the Legislature’s clear policy that it is in the public’s best interest to require 

all sex offenders to register. 

The trial court’s decision to transfer defendant’s case to the consent calendar also 

circumvents the Legislature’s policy decisions expressed in the Juvenile Diversion Act, 

MCL 722.821 et seq. The act allows for the removal of certain types of cases from the 

adjudicative process, but specifically provides that CSC I, II and III cases may not be 

diverted.

4

 Placement on the consent calendar similarly removes a defendant from the 

adjudicative process, but the consent-calendar rule contains no restriction on the types of 

cases to which it might apply. Regardless of whether a defendant commits CSC I, II, or 

III, a defendant who successfully completes his consent calendar plan will avoid 

conviction and therefore avoid mandatory registration by SORA. The consent calendar 

4

 MCL 722.823(3) provides that “[a] minor accused or charged with an assaultive offense 

shall not be diverted. An assaultive offense is defined as, among other things, an offense 

against a person described in MCL 750.520b (CSC I), MCL 750.520c (CSC II), or MCL 

750.520d (CSC III). 
6 

is, in effect, diversion under a different name. The Juvenile Diversion Act, however, 

reflects a clear legislative policy that sex offenders, regardless of age, may not avoid the 

adjudicative process. The consent-calendar rule circumvents this legislative policy 

choice. 

By allowing the trial court to transfer a case to the consent calendar and avoid the 

limits of the Juvenile Diversion Act and the requirements of SORA, the court rule invites 

abrogation of the stated public policy of protecting the public from convicted sex 

offenders where the executive charged with the prosecution decision concludes such 

regulation is essential. The Court’s rule-making authority, however, is limited to rules of 

practice and procedure. When the rules we have crafted invade the province of the 

prosecutor’s executive power or the Legislature’s power to enact legislation reflecting 

policy considerations, our court rules must yield to the powers exercised by the other 

branches of government. 

Even if MCR 3.932 does not implicate separation-of-powers problems, the trial 

court abused its discretion in transferring defendant to the consent calendar on the basis 

of its personal “philosophy” rather than the standards set forth in the rule. The trial court 

explained its reasons for undoing the plea and placing the matter on the consent calendar: 

The court feels, this is my philosophy, that that kind of—a 

punishment for a young man who did some very horrible things, at the age 

of 12 and 13, could be cruel and unusual punishment. It’s very—it not only 

restricts him, it restricts college, it restricts jobs, it restricts his ability to live 

in neighborhoods, it restricts his ability to ever go on school property— 

ever. So if he were to marry and have children, he can’t go to his children’s 

school activities because sex offenders are not allowed on school property. 

They’re not allowed on some church properties. They’re not allowed in 

certain neighborhoods. 

* * * 

. . . I’m not convinced, at this point, that someone who did an 

offense when he was 12 or barely 13, require—requires lifetime registry on 

the sex offender internet. 

* * * 

So for those reasons, I felt that it was improper or inappropriate to 

have this young man pre-judged to be a lifetime member of the sex 

offender registry when we don’t know yet whether or not he will make 

progress. 
7 

In further justifying its decision to transfer defendant to the consent calendar, the 

trial court made several troubling observations. It noted that “[t]his offense was a family 

matter that happened within your family while he was in your supervision. Um, he—as 

far as I know, he hasn’t preyed on little girls on buses or anything like that.” The court 

did not explain how an offense inside the home by a victim’s family member ameliorates 

the severity of the offense. Instead, the trial court explained: 

[T]he doctor who evaluated him talked about a sex addiction, that 

it’s a budding sex addiction. Those things are treatable. This court has 

dealt with dozens, if not scores, of young men sex offenders. And we have 

seen many of them, not all, but we have seen very many of them 

rehabilitate through intensive counseling and therapy, so that they know 

what the triggers are, they know how to avoid it, they do a recycle plan to 

show that they know how to avoid those kind of thoughts that lead them to 

inappropriate behaviors. They learn appropriate versus inappropriate 

sexual behaviors. And it is something that’s treatable. And so we are 

going to make sure that [defendant] gets that kind of treatment. 

* * * 

But because of the, what I consider to be the draconian requirements 

of the sex offender registry for young children, and you know, I’m talking 

about a boy who was 12 and 13 when he committed these acts, um to make 

that a part of his sentence, and make it something that is um, quite likely, 

going to be unable to be changed in the future. Um, it just seems to me to 

be not giving him a chance to rehabilitate. And I—I want to give him the 

hope that—that he will—you know, that he may not have to register if he 

does successfully complete this. 

The trial court acted outside the range of principled outcomes in focusing solely 

on the damage defendant would suffer if forced to register as a sex offender, rather than 

on harm to the public. The trial court’s philosophical disagreement with public policy, 

specifically, the appropriateness of applying SORA to juveniles, cannot supersede the 

plain language of the court rule. MCR 3.932(C) only allows a trial court to transfer a 

case to the consent calendar if such an action “will serve the best interests of the juvenile 

and the public.” (Emphasis added.) The Legislature has unequivocally expressed that it 

is in the best interest of the public to require all sex offenders to register, notwithstanding 

treatment or any other potential for rehabilitation. SORA contains no treatment or 

rehabilitation exceptions to the registration requirements. 
 _________________________________________ 

 

8 

Because I believe that the consent calendar violates separation-of-powers 

principles, and because the trial court abused its discretion in placing defendant on the 

consent calendar, I would grant the prosecution’s application for leave to appeal or 

remand this case to the Court of Appeals for consideration as on leave granted. 

d0506 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

May 9, 2008 

Clerk