In Re Petition for Appointment of Special Prosecutor , 122 Mich. App. 632 ( 1983 )

122 Mich. App. 632 (1983) 332 N.W.2d 550

In re PETITION FOR APPOINTMENT OF SPECIAL PROSECUTOR

Docket No. 60665.

Michigan Court of Appeals.

Decided January 20, 1983.

Klimaszewski & Street (by Barbara A. Klimaszewski and William T. Street), for petitioners.

Annette M. Gray, for Saginaw County Prosecuting Attorney.

Before: D.E. HOLBROOK, JR., P.J., and ALLEN and R.L. TAHVONEN,^[*] JJ.

PER CURIAM.

Petitioners appeal as of right from an October 13, 1981, order of the trial court dismissing their petition, brought pursuant to MCL 49.160; MSA 5.758, on the ground that the trial court had no jurisdiction to grant the relief requested.

On April 22, 1981, Oliver Bruce Moorer was fatally shot by Saginaw police officers during the execution of a search warrant for marijuana. The Saginaw County prosecutor filed a petition in district court on May 27, 1981, requesting an inquest concerning the shooting incident. This inquest was held July 14 through July 24, 1981.

On July 28, 1981, the Saginaw County prosecutor issued a press release indicating his decision that no criminal charges would be brought against any person or persons concerning the death of Moorer. The release further stated that his decision was based on a review of the facts and the advisory verdict of the inquest jury which found the death was caused by lawful means.

On July 30, 1981, petitioners filed a petition in the circuit court seeking the appointment of a special prosecutor to review the evidence and initiate and prosecute charges arising from the shooting incident. Petitioners specifically alleged that during the district court inquest, the prosecutor acted to defend the police involved rather than to probe for evidence of criminal violations.

The sole issue on appeal is whether the trial court erred in determining that it had no jurisdiction to appoint a special prosecutor as requested by petitioners.

The ability of a court to appoint a special prosecutor to act in lieu of a county prosecutor is governed by statute. People v Johnston, 326 Mich. 213, 217; 40 NW2d 124 (1949). The statutory language in effect at all times during the proceedings below was MCL 49.160; MSA 5.758, as amended by 1978 PA 535, which took effect on December 21, 1978. This Court has not yet had an opportunity to consider an application of the revised statute to a set of facts similar to those in the instant case. Under MCL 49.160; MSA 5.758 prior to its 1978 amendment, however, our question has been considered. See People v Davis, 86 Mich. App. 514; 272 NW2d 707 (1978); Sayles v Genesee Circuit Judge, 82 Mich. 84; 46 N.W. 29 (1890). It is clear that under the old statute, as interpreted by Davis and Sayles, the circuit court would not have the power to appoint a special prosecutor under the circumstances herein. Said cases interpreted the old statutory language as referring to cases arising in or pending in the courts referred to and not to cases out of such courts. By limiting appointment of a special prosecutor to cases which had already come to court, the old statute precluded appointment for the purpose of investigation or initiation of criminal prosecutions.

We must now consider the language of the statute as amended to see if its scope would encompass the proposed appointment herein. Subsections (1) and (2) of the amended statute limit the appointment of a special prosecutor to the purpose of performing the duties of the prosecuting attorney "in the respective court in any matter in which the prosecuting attorney is disqualified" and "to perform the duties of the prosecuting attorney in the probate court, the district court or any other court within the county in any matter in which the prosecuting attorney is disqualified". (Emphasis supplied.) MCL 49.160, subds (1) and (2); MSA 5.758, subds (1) and (2), as amended by 1978 PA 535. We agree with the trial court that the above subsections do not allow the circuit court to appoint a special prosecutor to perform the duties of the prosecuting attorney in any matters outside of the aforementioned courts, including the investigation of complaints of a crime or for the purpose of initiating criminal charges.

Decisions regarding the initiation of criminal charges are discretionary executive acts. In deference to principles of separation of powers, judicial interference with the exercise of this discretion is severely limited. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672; 194 NW2d 693 (1972); People v Thomas, 118 Mich. App. 667; 325 NW2d 536 (1982). If the amended statute were interpreted as allowing the appointment of a special prosecutor to initiate criminal charges, even for legitimate reasons such as conflict of interest, the court's appointment of a special prosecutor would constitute a judicial second-guessing of the prosecutor's actions. Because such an action by the courts is suspect under constitutional principles, we hesitate to make such an interpretation of this statute, since the statute does not explicitly provide for that kind of judicial power. Once a case is brought to court, the substitution of a special prosecutor does not constitute such an obvious interference with prosecutorial discretion.

Additionally, plaintiffs argue that subsection (3) of the statute allows the circuit court to appoint a special prosecutor for matters outside of the aforementioned courts. This argument is without merit, since subsection (3) is clearly controlled by subsections (1) and (2), which we have already held limit the appointment of the special prosecutor to those instances where the duties are to be performed in court.

Finally, since the circuit court judge has no jurisdiction to make such appointment other than by statute, clearly jurisdiction cannot be based upon general equitable jurisdiction, or upon GCR 1963, 521, which governs declaratory judgments.

The recommended remedy herein is for petitioners to request the Attorney General to review their complaint and rule on same pursuant to the authority granted under MCL 14.28; MSA 3.181 and MCL 14.30; MSA 3.183.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.