# 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, th e motion to add issues is DENIED. The application for leave to appeal the Septemb er 28, 2007 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the ques tion presented should be reviewed by this Court.

C ORRIGAN , J., dissents and states as follows:

I would grant the prosecuto r’s application for leave to appeal or remand to the Court of Appeals for consideration as on leav e granted. MCR 3.932, which authorizes a

court to transfer a case to the consent calend ar without the approval of the prosecutor, may violate the separati on of powers doctrine. 1 MCR 3.932 intr udes 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, cita tion, or appearance ticket, and it appears that protective and supportive ac tion 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 pe tition to be filed. No case may be placed on the consent calendar unless th e juvenile and the parent, guardian, or legal custodian agree to have th e case placed on the consent calendar. The court may transfer a case from th e 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 proceed ing. No report or abstract may be made to any other agency nor may the court require the j uvenile to be fingerprinted for a case completed and closed on the consent calendar.2

craft substantive law reflecting policy choices. Even in the absen ce of a separation of powers problem, however, the trial court ab used its discretion in transferring the case to the consent calendar on the basis of its “ph ilosophy” regarding sex offender registration requirements for juveniles, a philosophy that is 180 degrees oppos ite 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 defen dant with four counts of first-degree criminal sexual conduct (CSC I). The petition alleged that d efendant, who was 13 years old, digitally penetrated his two younger half-s isters, who were 8 a nd 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 dism issal 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 o ffice to ask whether it would amend the plea agreement to remove the lifetime-registration requirement. The prosecutor d eclined to do so. Failing to convince the prosec ution 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 d efendant to the cons ent calendar over the prosecutor’s objection subverted the prosecutor’s discretion to decide the terms of a plea agreement and to enforce the statutory requ irements under SORA. The Court has
addressed court interference w ith prosecutorial discreti on 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 incl uded offense. The defendant was bound over to the circuit court after a prelim inary 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 moti on to plead guilty of unlawfully driving away the au tomobile of another in viol ation of MCL 750.413, an offense that was not charg ed or a lesser included o ffense of MCL 257.254. Id . Before accepting the plea, the court asked the pros ecutor whether he obj ected to the plea agreement. The prosecutor indi cated he did object because the facts suppor ted the charge as originally bound over and th at charge was a more serious o ffense 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 d efendant’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 lifet ime registration for CSC II.3

The prosecution sought a writ of s uperintending control from the Court of Appeals, challenging the trial court’s ab ility to accept a plea, over the prosecutor’s objection, to an offense not ch arged or to a lesser included offense. The Court of Appeals dismissed for lack of jurisdiction. 3 We granted leave, noti ng that “[w]hether the trial judge may amend an info rmation and accept a plea sua sponte and over the objection of the prosecutor raises the ques tion of constitutional separati on of powers between the judicial and execu tive branch.” Id. at 682. The Court explained that

[t]he prosecutor is a constitutional o fficer whose duties are provided by law. The conduct of a prosecutio n on behalf of the people by the prosecutor is an executive act. . . . [T]he prosecutor is the chief law enforcement officer of the county a nd has the right to exercise broad discretion in determining under whic h of two applicab le statutes a prosecution will be instituted. [ Id. at 683 (citations omitted).]

A judge may not act as pros ecutor, 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 Cour t noted that “[i]n . . . holding that the judge here acted withou t 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 expre ss an opinion on th e propriety of accepting a plea over the objection of the prosecuto r 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 addre ssed whether the court, over the prosecutor’s objection, may accept a plea of guilty to one coun t 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 pers on. 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 s upervisory power over a prosecuting attorney. He may reverse a magist rate’s decision only for abuse of

3 This Court held that the C ourt of Appeals had jurisdiction to entertain the complaint for superintending control for th e purpose of determining wh ether the trial judge acted without jurisdicti on or in excess of jurisdiction. Id. at 682.4

discretion. He may not properly subs titute 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 res pect to the prosecuting attorney. He may reverse or revise their decisions only if it appears on the record that they have abused the power c onfided 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 se conds after he had fallen to the ground, this Court held that the prosecutor did not exceed his po wer in refusing to authorize a plea of guilty of manslaughter. Id. at 122. The Court set asid e 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 3.93 2 encourages unconstitutional interference by judges with the executive powers of pr osecutors because it allows a trial

court to transfer a case to the consent calen dar even when a pros ecutor 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 th e parent, guardian, or legal custodian agree to have the case placed on the consent calendar.” (E mphasis added.) The court rule has no regard for the charg ing official’s executive decision. In this case, the trial judge disregarded the prosecution’s ob jection to placing d efendant’s case on the calendar. This judicial action, even if allowed under th e court rules, improp erly encroached on the executive power vested in the prosecution.

MCR 3.932(C) may well also violate the se paration of powers be tween the judicial and legislative branches as applied in this case. In McDougall v Schanz , 461 Mich 15 (1999), the Court addressed wh ether MCL 600.2169 (qualifications for expert witnesses in medical malpractice claims) impermissi bly infringed on the Court’s rule-making authority to promulgate court rules on practice and procedure. The Co urt determined that the Legislature intended th at § 2169 would often co mpel 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 di d not impermissibly infringe on the court's constituti onal rule-making authority. Id. at 37.

In so holding, the Court noted that “[i]t is beyond que stion that the authority to determine rules of practice and procedure rests exclusively with this Court. Indeed, this Court’s primacy in such matters is es tablished in our 1963 Constitution.” Id. at 26. At the same time, the Court is not authorized to enact court rules that “establish, abrogate, or5

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 necess arily contravene a legislatively declared principle of public policy. Nevertheless, in its application, as demonstrated by the present case, it can impermissibly invade th e providence of the Le gislature. In MCL 28.721a, the Legislature made a very clear statement regarding the policy considerations undergirding the req uirements of SORA:

The legislature declares that the sex offenders registration act was enacted pursuant to the legislature's ex ercise of the police power of the state

with the intent to better assist law enforcement officers a nd 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 potentia l 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 peopl e of this state w ith 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. Trans fer to the consent calend ar, however, allows

defendant to avoid SO RA requirements by re moving him from the ad judicative process. This thwarts the Legislature’s cl ear policy that it is in the pub lic’s best interest to require all sex offenders to register.

The trial court’s decision to transfer d efendant’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 CS C I, II and III ca ses may not be
diverted

. 4 Placement on the consent calendar si milarly removes a defendant from the adjudicative process, but the consent-calendar ru le 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 successf ully completes his consen t calendar plan will avoid
conviction and therefore avoid ma ndatory registration by SO RA. The consent calendar

4 MCL 722.823( 3) provides that “[a] mi nor accused or charged w ith an assaultive offense

shall not be diverted. An a ssaultive 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 Divers ion Act, however, reflects a clear legislative policy that sex offenders, regardless of age, may not avoid the adjudicative process. The consent-calendar rule circumve nts this legislative policy

choice.

By allowing the trial court to transfer a case to the consent calendar and avoid the
limits of the Juvenile Diversio n Act and the requirements of SORA, the court rule invites abrogation of the stated pub lic policy of protecting the public from convicted sex
offenders where the ex ecutive charged with the prosecution decision concludes such regulation is essential. The Co urt’s rule-making authority, howe ver, 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 yi eld 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 undoi ng the plea and placing the ma tter on the consent calendar:

The court feels, this is my phi losophy, that that kind of—a punishment for a young ma n who did some very horri ble 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 restr icts 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 m arry 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 pr operties. 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 wheth er 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 w ithin 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 anyt hing like that.” The court did not explain how an offense inside the ho me by a victim’s fami ly member ameliorates the severity of the offense. In stead, 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 offend ers. And we have seen many of them, not all, but we have seen very many of them rehabilitate through intens ive counseling and therapy, so that they know what the triggers are, they know how to avoid it, th ey do a recycle plan to show that they know how to avoid those kind of thou ghts that lead them to inappropriate behaviors. They learn appropriate versus inappropriate
sexual behaviors. And it is somethi ng that’s treatable. And so we are going to make sure that [defendant] gets that kind of treatment.

* * *

But because of the, what I consid er to be the draconian requirements of the sex offender registr y for young children, an d 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—y ou 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 ph ilosophical disagreement with public policy, specifically, the appropriatene ss of applying SORA to juveniles, cannot supersede the plain language of the court ru le. MCR 3.932(C) only allows a trial court to transfer a

case to the consent calendar if such an action “will serve the be st interests of the juvenile and the public .” (Emphasis added.) The Legislatu re has unequivocally expressed that it

is in the best interestof the public to require all sex offenders to register, notwithstanding treatment or any other potential for rehabilita tion. SORA contains no treatment or rehabilitation exceptions to the reg istration requirements._______________________________________ __ 8

Because I believe that the consent calendar violates se paration-of-powers principles, and because the tria l court abused its discretion in placing defendant on the consent calendar, I would grant the prosecu tion’s application for leave to appeal or remand this case to the Court of Appeal s for consideration as on leave granted.

d0506 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.

May 9, 2008

Clerk