People v. Herrick , 216 Mich. App. 594 ( 1996 )

550 N.W.2d 541 (1996) 216 Mich. App. 594

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Debra (Parmentier) HERRICK, Defendant-Appellant.

Docket No. 182634.

Court of Appeals of Michigan.

Submitted December 6, 1995, at Grand Rapids. Decided May 14, 1996, at 9:15 a.m. Released for Publication July 12, 1996.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and James M. Hunt, Special Prosecuting Attorney, for People.

Rosi, Senger & Harrison, P.C. by John Michael Senger, Traverse City, for defendant.

Before SMOLENSKI, P.J., and GRIFFIN and GARBRECHT,^[*] JJ.

PER CURIAM.

Defendant appeals by leave granted an order denying her motion to dissolve the appointment of a special prosecutor. The appointment had been made after the Grand Traverse County Prosecutor decided not to prosecute defendant.

We reverse and remand for further proceedings. In doing so, we hold that a prosecutor's decision to refrain from prosecuting is not, in itself, a conflict of interest authorizing the appointment of a special prosecutor pursuant to M.C.L. § 49.160; M.S.A. § 5.758.

I

In 1988, defendant was a principal prosecution witness in a murder trial in Otsego County. See generally People v. Canter, 197 Mich.App. 550, 496 N.W.2d 336 (1992); People v. Moore, 189 Mich.App. 315, 472 N.W.2d 1 (1991). In March 1988, an attorney representing one of the defendants in the trial received a handwritten death threat. The man who was convicted for writing the threat had allegedly implicated defendant as an aider and abettor in the crime.

In July 1993, the recipient of the death threat and other defense attorneys involved in the Otsego County murder cases (hereafter complainants) asked the Grand Traverse County Prosecutor to prosecute defendant for her role in the death threat. In a letter dated July 12, 1993, the county prosecutor informed complainants that he had decided not to prosecute. In support of his decision, the county prosecutor cited a lack of evidence to corroborate the allegation that defendant played a role in writing the death threat and the prosecutor's reluctance to intervene in a case principally affecting Otsego County. A third reason was given in an affidavit that was attached to defendant's motion to quash the appointment of the special prosecutor. In the affidavit, the county prosecutor testified that the recipient of the death threat had stated to him that the "real reason" he wanted defendant prosecuted was so that she would "turn on the prosecutor in Otsego County." This allegation was vehemently denied by complainants.

Later, in July 1993, complainants sought and obtained in the district court a "citizen's warrant" for the arrest of defendant for her alleged role in the death threat. The Grand Traverse County Prosecutor refused to prosecute the warrant for the reasons he had stated earlier. Thereafter, complainants successfully petitioned the circuit court to appoint a special prosecutor to execute the warrant and prosecute defendant for obstruction of justice. In authorizing the appointment of a special prosecutor, the circuit court ruled that the county prosecutor "is disqualified from acting in this matter by reason of a conflict of interest arising due to the unwillingness of the Grand Traverse County Prosecuting Attorney to act in this matter."

Thereafter, the special prosecutor moved to amend the felony information by changing the charge to extortion. The amended felony complaint (which was brought under a new file number because of an alleged clerical error) was coauthorized by the Attorney General, Frank J. Kelley. On February 24, 1994, the circuit court allowed the amendment.

Defendant moved to dissolve the appointment of the special prosecutor. At a hearing, defendant argued that the circuit court invaded the prosecutor's executive discretion by appointing a special prosecutor to overcome the prosecutor's decision not to prosecute.

The circuit court denied defendant's motion. In its ruling, the court stated that it had not instructed a special prosecutor to initiate a charge against defendant, but had instead given effect to a citizen's warrant. The court reasoned that, under the circumstances, its refusal to appoint a special prosecutor would nullify the statute that provides citizens the ability to request the issuance of an arrest warrant.^[1] Further, the circuit judge stated that he "dramatically disagrees with defendant in the argument that any lawfully elected or appointed prosecutor has within his or her discretion the ability to ignore a citizen warrant."

This Court granted defendant's application for leave to appeal limited to the issues raised in defendant's application.

II

On appeal, defendant argues that the circuit court erred as a matter of law in ruling that the prosecutor's decision not to prosecute constitutes a conflict of interest authorizing the appointment of a special prosecutor pursuant to M.C.L. § 49.160; M.S.A. § 5.758. We agree.

The county prosecutor is a constitutional officer with discretion to decide whether to initiate criminal charges. Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 683, 194 N.W.2d 693 (1972); In re Special Prosecutor, 122 Mich.App. 632, 636, 332 N.W.2d 550 (1983);Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 380 (C.A.2 1973); Moses v. Kennedy, 219 F.Supp. 762, 764 (D.D.C.1963). The principle of separation of powers restricts judicial interference with a prosecutor's exercise of executive discretion. Special Prosecutor, supra at 636, 332 N.W.2d 550; People v. Bolton, 112 Mich.App. 626, 630, 317 N.W.2d 199 (1981); Inmates of Attica Correctional Facility, supra at 379-380; see generally Const.1963, art. 3, § 2.

M.C.L. § 49.160; M.S.A. § 5.758 is the exclusive source of the judiciary's authority to appoint a special prosecutor in lieu of a county prosecutor. The statute permits such an appointment only when (1) the prosecuting attorney "is disqualified by reason of conflict of interest," or (2) "is otherwise unable to attend to the duties of his office."^[2] See People v. Johnston, 326 Mich. 213, 217, 40 N.W.2d 124 (1949); Special Prosecutor, supra at 634, 332 N.W.2d 550.

Case law involving the disqualification of prosecutors because of a conflict of interest falls into two main subject categories. People v. Doyle, 159 Mich.App. 632, 641, 406 N.W.2d 893 (1987), modified on rehearing, 161 Mich.App. 743, 411 N.W.2d 730 (1987). The first involves disqualification for conflicts arising from a professional attorney-client relationship, such as when the prosecutor has become privy to confidential information. Id. The second encompasses those situations where the prosecutor has a personal, financial, or emotional interest in the litigation or with the accused. Id.; People v. Fitzsimmons, 183 Mich. 284, 149 N.W. 976 (1914); People v. Cline, 44 Mich. 290, 6 N.W. 671 (1880). A prosecutor's decision not to prosecute a suspected criminal falls into neither category. Nor does the decision fall within any other standard definition of "conflict of interest." See MRPC 1.7-1.9. Therefore, upholding the decision of the circuit court would require the creation of an entirely new category to be included within the definition of "conflict of interest."

We are unwilling to create a definition of "conflict of interest" that would include a prosecutor's decision not to prosecute. In effect, such a construction would divest prosecutors of their executive discretion by making a particular exercise thereof grounds for the appointment of a special prosecutor. In our view, such a result would constitute a clear violation of the principle of separation of powers by permitting the judiciary to overrule the prosecutor's exercise of executive discretion. See Special Prosecutor, supraat 635-636, 332 N.W.2d 550; People v. Davis, 86 Mich.App. 514, 521-522, 272 N.W.2d 707 (1978).

For these reasons, we hold that the trial court erred as a matter of law in ruling that the prosecutor's decision not to prosecute constituted a conflict of interest within the meaning of M.C.L. § 49.160; M.S.A. § 5.758. Because there was no other basis to authorize the appointment of a special prosecutor in this case, we reverse.

III

The fact that complainants had acquired a citizen's warrant against defendant does not affect our conclusion. The statutory provision, M.C.L. § 49.160; M.S.A. § 5.758, is the only authority by which a court may appoint a special prosecutor. It provides no exception for a situation where the prosecutor has decided not to pursue a citizen's warrant.

Nor does the statute that authorizes citizens to seek an arrest warrant grant a corresponding right to have charges filed and prosecuted pursuant to the warrant. See, e.g., Sayles v. Newton, 82 Mich. 84, 90-91, 46 N.W. 29 (1890); see also Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973) ("in American jurisprudence... a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another"); Anderson v. Norfolk & W.R. Co., 349 F.Supp. 121, 122 (W.D.Va.1972) ("criminal statutes can neither be enforced by civil action ... nor by private parties"); Manning v. Municipal Court of Roxbury Dist., 372 Mass. 315, 317-318, 361 N.E.2d 1274 (1977) (same). Serious constitutional questions would arise regarding the judiciary's ability to initiate criminal charges if the court-approved issuance of a citizen's warrant were to trigger the appointment of a special prosecutor.^[3] We cannot accept such a construction because it would be inconsistent with our duty "to give the presumption of constitutionality to a statute and construe it as constitutional unless the contrary clearly appears." Caterpillar, Inc. v. Dep't of Treasury, 440 Mich. 400, 413, 488 N.W.2d 182 (1992), quoting People v. McQuillan, 392 Mich. 511, 536, 221 N.W.2d 569 (1974).

IV

Finally, the special prosecutor argues that if his appointment is found to be invalid, the case may nevertheless be continued by the Attorney General. In the present appeal, this issue is not before us. We acknowledge that the Attorney General has the authority to initiate criminal charges in any jurisdiction in the state. In re Lewis' Estate, 287 Mich. 179, 183, 184, 283 N.W. 21 (1938); People v. Karalla, 35 Mich.App. 541, 543-544, 192 N.W.2d 676 (1971). Thus, the Attorney General acts as a check on the discretion of the county prosecutor. Further, we note that in the present case the Attorney General coauthorized the extortion complaint. However, the Attorney General has not filed an appearance or participated in these proceedings. Accordingly, it is unclear whether the Attorney General has made a decision to prosecute defendant.

Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Allen L. Garbrecht, 37th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

[1] M.C.L. § 764.1; M.S.A. § 28.860 provides in part:

(1) For the apprehension of persons charged with a felony, misdemeanor, or ordinance violation, a magistrate may issue processes to implement [an arrest], except that a magistrate shall not issue warrants for other than minor offenses until an order in writing allowing the issuance of the warrant is filed with the magistrate and signed by the prosecuting attorney, or unless security for costs is filed with the magistrate.

See also MCR 6.101. This Court has interpreted this statute to allow a private citizen who is prepared to file security for costs to ask for the issuance of an arrest warrant. People v. Joker, 63 Mich.App. 421, 427, 234 N.W.2d 550 (1975).

[2] M.C.L. § 49.160; M.S.A. § 5.758 provides in part:

(1) If the prosecuting attorney of a county is disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office, the supreme court, the court of appeals or the circuit court for that county, upon a finding to that effect by the court, may appoint an attorney at law as a special prosecuting attorney to perform the duties of the prosecuting attorney in the respective court in any matter in which the prosecuting attorney is disqualified or until such time as the prosecuting attorney is able to serve.

(2) If the prosecuting attorney of a county is disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office, the circuit court for that county, upon a finding to that effect by the court, may appoint an attorney at law as a special prosecuting attorney 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 or until such time as the prosecuting attorney is able to serve.

[3] In Sayles, supra at 89-90, 46 N.W. 29, our Supreme Court held that a circuit court may appoint a special prosecutor only in cases that are currently pending within its jurisdiction. See also People v. Davis, 86 Mich.App. 514, 521-522, 272 N.W.2d 707 (1978). Despite some minor changes in the statutory language, this Court has recently construed M.C.L. § 49.160; M.S.A. § 5.758 in a similar fashion. Special Prosecutor, supra at 635-636, 332 N.W.2d 550. In each case, it was held that a special prosecutor could not be appointed to investigate or initiate a criminal charge. Sayles, supra at 90, 46 N.W. 29; Special Prosecutor, supraat 635-636, 332 N.W.2d 550. Thus, it appears that the authority to appoint a special prosecutor is limited to those cases where charges have been brought and it is later discovered that the prosecutor is unable to act or is disqualified by reason of conflict of interest. Sayles, supra at 90, 46 N.W. 29; Special Prosecutor, supraat 635-636, 332 N.W.2d 550; Davis, supraat 521-522, 272 N.W.2d 707.