author: D. C. Riley, P.J.

text:
    GRANO v ORTISI CASTNER v ORTISI
    Docket Nos. 77-2857, 77-2714.
    Submitted June 19, 1978, at Detroit
    Decided October 17, 1978.
    Joseph D. Grano attempted to file the required nominating petitions with the City of Grosse Pointe Park for the municipal judge primary election to be held on August 2, 1977. The city clerk rejected the petitions because Mr. Grano did not meet city charter provisions which require that a candidate for municipal judge be a two-year resident of Grosse Pointe Park and have been licensed to practice law in Michigan for five years prior to filing nominating petitions for that office.
    Joseph Grano then commenced an action against N. J. Ortisi, Clerk of the City of Grosse Pointe Park and the Election Commission for the City of Grosse Pointe Park, seeking to have the two charter provisions declared unconstitutional. Carol J. McCloskey, a Grosse Pointe Park resident who signed Grano’s nominating petition and sought to vote for him in the primary election, was joined as a plaintiff.
    Karen Smith Kienbaum and Robert J. Lech, who also had had their nominating petitions rejected by the city clerk for failure to satisfy the charter requirements, were allowed to intervene by stipulation.
    Daniel Castner instituted a separate lawsuit after his petition had been rejected for failure to satisfy the five-year licensing requirement.
    A judgment was entered for the plaintiffs, ruling the charter provisions to be unconstitutional and ordering the city clerk to accept the petitions and to place the names of the four prospective candidates on the primary ballot, Wayne Circuit Court, Thomas Roumell, J. Defendants appeal. The two cases were consolidated on appeal. Held:

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law § 112.
    [2] 46 Am Jur 2d, Judgments §§ 529-534.
    [3, 6, 7] 46 Am Jur 2d, Judges §§ 7-12.
    63 Am Jur 2d, Public Officers and Employees §§ 47, 48.
    [4] 16 Am Jur 2d, Constitutional Law §§ 496, 497.
    [5] 63 Am Jur 2d, Public Officers and Employees §§ 47, 48.

      1. The issue is not moot, although the election has since been held, because the issue raised is one that is capable of repetition yet may evade review for the reason that the time period between the filing of nominating petitions and the subsequent election is normally too short to allow a case to progress through the appellate system.
    2. The doctrines of res judicata and collateral estoppel should not have been applied by the trial court to bar a review of the merits of the present lawsuits because in the 1973 cases against the city, relied upon by the trial judge, there was a different plaintiff and the present suit does not have the mutuality of parties required to evoke either doctrine.
    3. The fact that the city standards are more rigid than state standards for justices of the Supreme Court or judges of the Court of Appeals does not mean that the standards in question contravene the state standards.
    4. The two-year residency rule does substantially affect the fundamental right of free travel between the states, thus requiring the city to demonstrate that the provision serves a compelling state interest. The city’s purported justification does not meet this strict standard. The flat residency rule is too vague and overreaching to be upheld as the least burdensome method of protecting the city’s interests.
    5. The five-year licensing provision similarly has an adverse affect on the fundamental right of free travel between the states. The city’s restriction is too broad to fulfill its stated objective. Both restrictions are unconstitutional as violative of equal protection.
    Affirmed.
    1. Appeal and Error — Mootness—Municipal Corporations — Elections — Qualifications of Candidate — Municipal Judges.
    A controversy over a city’s charter provisions which list residency requirements and a requirement of state bar membership of a certain duration for candidates for municipal judgeships is not moot, even though the primary election involved in the dispute has since been held, because the issue raised is one that is capable of repetition yet may evade review for the reason that the time period between when nominating petitions are filed and the subsequent election held is normally too short to allow the case to progress fully through the appellate system (Charter for the City of Grosse Pointe Park §§ 5.1, 15.3).

      2. Judgement — Res Judicata — Collateral Estoppel.
    Neither the doctrine of res judicata nor the doctrine of collateral estoppel applies where, in a subsequent case, the plaintiffs are not the same plaintiffs as in an earlier case and are not in privity to the prior parties; a judgment, to constitute a bar to a claim in a subsequent action, must be rendered upon the merits, upon the same matter in issue, and between the same parties or their privies.
    3. Courts — Uniform Municipal Court Act — Standards—Statutes.
    The uniform municipal court act allows individual standards for municipal judges to be set as long as the standards meet certain minimal requirements; therefore, it cannot be said that standards for municipal judges, set forth in a city charter, contravene the state standards just because the particular municipal standard is stricter in its qualifications for municipal judges than the standard which the state has set for justices of the Supreme Court and for judges of the Court of Appeals (MCL 730.501 et seq., MSA 27.3937[1] et seq.; Charter for the City of Grosse Pointe Park §§ 5.1, 15.3).
    4. Constitutional Law — Equal Protection — Fundamental Interest — Suspect Classification — Strict Scrutiny — Traditional Test.
    A two-tiered approach to equal protection cases has been developed and the test to be employed depends upon the nature of the individual interest affected by the legislation; if the interest is "fundamental” or the classification "suspect”, a strict scrutiny test is applied requiring the government to show a compelling interest which justifies the classification; other legislation is subjected to review under the traditional equal protection test and the burden is on the person challenging the classification to show that the classification is without reasonable justification.
    5. Elections — Candidates for Elective Office — Residential Requirements — Constitutional Law — Right to Vote.
    Residential prerequisites for candidates for elective office can be so restrictive that, because they limit the pool of candidates, they intrude upon the traditionally fundamental right to vote.
    6. Judges — Elections—Municipal Judges — Residency Requirements — Constitutional Law — Right of Free Travel — Compelling State Interest.
    A provision in a municipal charter which requires that a candidate for municipal judge be a two-year resident of the municipality substantially affects the fundamental right of free travel between the states; this requires the municipality upon a challenge to the charter provision to demonstrate that the provision serves a compelling state interest; a purported justification for the residency rule, to insure that candidates are knowledgeable about local procedures and laws and known to the electorate, does not meet the strict standard (Charter for the City of Grosse Pointe Park §§ 5.1, 15.3).
    7. Judges — Elections—Municipal Judges — Membership in State Bar — Qualifications of Candidates.
    A restriction in a municipal charter which requires all candidates for the position of municipal judge to be licensed to practice law in Michigan for five years is too broad to fulfill its stated objective, that the candidate be highly proficient in the law, since it does not ensure that all candidates are knowledgeable in the law and at the same time may exclude highly qualified candidates (Charter for the City of Grosse Pointe Park §§ 5.1, 15.3).

      Joseph D. Grano, in propria persona.

      Karen Smith Kienbaum and Robert J. Lech, in propria persona.

      Markle & Markle (by Thomas K. DiPietro), for Daniel E. Castner.

      Bodman, Longley, Bogle & Dahling (by Herold M. Deason), for defendants.
    Amicus curiae: Edward M. Wise, for American Civil Liberties Union.
    Before: D. C. Riley, P.J., and M. F. Cavanagh and B. M. Hensick, JJ.

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

   D. C. Riley, P.J.

The present appeal concerns the constitutionality of the city charter provisions of Grosse Pointe Park setting forth requirements for persons seeking to become candidates for the office of municipal judge. Two provisions of the charter mandate that a candidate must be a two-year resident of Grosse Pointe Park and have been licensed to practice law in Michigan for five years prior to filing nominating petitions.

Plaintiff Grano attempted to file the required petitions with the city for the municipal judge primary election to be held on August 2, 1977. The defendant city clerk rejected the petitions because plaintiff did not meet either requirement of the charter. Plaintiff then instituted the present action in Wayne County Circuit Court, seeking to have the two charter provisions declared unconstitutional. Plaintiff McCloskey, a Grosse Pointe Park resident who signed Grano’s nominating petition and sought to vote for him in the primary election, was joined as a plaintiff. Plaintiffs Kienbaum and Lech, who similarly had their nominating petitions rejected by the city clerk for. failure to satisfy the charter requirements, intervened by stipulation.

Plaintiff Castner instituted a separate lawsuit after he had his petition rejected for failure to satisfy the five-year licensing requirement.

The trial judge, after holding hearings on both actions, ruled the charter provisions to be unconstitutional, and issued an order compelling the city clerk to accept the petitions and place the names of Grano, Keinbaum, Lech and Castner on the primary ballot. The present consolidated appeals are challenges by defendants to the trial court’s orders.

Before discussing the particular constitutional issues raised, we must first speak to several preliminary, nonconstitutional issues that have been variously raised by the parties. The initial such question is mootness. We will state only briefly that the present controversy is not moot, even though the primary election has since been held, since the issue raised is one that is capable of repetition yet may evade review for the reason that the time period between when nominating petitions are filed and the subsequent election held is normally too short to allow the case to progress fully through the appellate system. See Roe v Wade, 410 US 113, 124-125; 93 S Ct 705; 35 L Ed 2d 147 (1973).

The next question concerns the doctrines of res judicata and collateral estoppel. The trial court’s opinions in the present cases relied heavily on the decisions rendered in several prior circuit court cases which involved identical challenges to Grosse Pointe Park’s charter provisions. The trial court held that the city was precluded by the previous cases, under res judicata and collateral estoppel, from relitigating the validity of its candidate requirements.

Although we can sympathize with the trial court’s desire to rely on the previous decisions, we cannot agree that either res judicata or collateral estoppel barred review of the merits of the present lawsuits. In Curry v Detroit, 394 Mich 327, 331; 231 NW2d 57 (1975), the Supreme Court, discussing res judicata, stated:

"In Tucker v Rohrback, 13 Mich 73 (1864), the Court said that 'a judgment, to constitute a bar to a claim in a subsequent action, must be rendered upon the merits, upon the same matter in issue, and between the same parties or their privies’.” (Footnotes omitted.)

The mutuality of parties requirement set forth in Curry applies equally to the doctrine of collateral estoppel. Howell v Vito’s Trucking & Excavating Co, 386 Mich 37; 191 NW2d 313 (1971). In the present cases the plaintiffs are clearly not the same plaintiffs as in the 1973 cases and are not in privity to the prior parties. Even if the trial court felt obligated to follow the prior decisions, the application of res judicata and collateral estoppel to effectuate that purpose was erroneous.

Plaintiffs next argue that the city charter provisions are invalid because they conflict with state law setting forth qualifications for Michigan judges. The Michigan Constitution provides that justices and judges of any court of record must be licensed members of the bar, without mentioning any time period of licensing. Const 1963, art 6, § 19. Plaintiffs assert that the significantly stricter requirements of Grosse Pointe Park invalidly conflict with this provision of state law, contrary to MCL 117.36; MSA 5.2116:

"No provision of any city charter shall conflict with or contravene the provisions of any general law of the state.”

Even though we agree with plaintiffs that it is illogical that a potential judicial candidate must meet more rigid qualifications for election as Grosse Pointe Park municipal judge than as justice of the Supreme Court or judge of the Court of Appeals, we cannot say that the city charter in this case contravenes the state standards. The Uniform Municipal Court Act (MCL 730.501 et seq.; MSA 27.3937(1) et seq.), seemingly allows individual standards for municipal judges to be set as long as the standards meet certain minimal requirements:

"The qualifications, term of office, time and manner of election, compensation, jurisdiction, powers and duties of the judges of the municipal court of any city affected by the provisions of this act, and the practice and procedure in such municipal courts, shall be governed by the provisions of existing laws relating to justices of the peace in such cities, and to the practice and procedure in the courts of such justices of the peace, except so far as the same or any part thereof are expressly repealed by or are inconsistent with any of the provisions of this act: Provided, however, That no person shall be eligible to qualify for judge of any such court who is not a regularly licensed attorney and counselor at law licensed to practice in the state of Michigan: Provided further, That any incumbent justice at the effective date of this act who is not an attorney at law shall be eligible for re-election as municipal judge of such court: Provided further, That no municipal judge, associate municipal judge or any partner of such judge or associate judge shall practice law in the court to which he was elected or appointed.” MCL 730.508; MSA 27.3937(8). (Emphasis added.)

We also note that the Supreme Court has upheld a municipal ordinance that set stricter standards than state law on a particular subject. See Miller v Fabius Twp Board, 366 Mich 250; 114 NW2d 205 (1962).

Having resolved all of the nonconstitutional questions raised by the parties, we now turn to the primary issue of the case, that being whether the city charter requirements of two-year residence and five-year licensing violated plaintiffs’ right to equal protection of the law. US Const, Am XIV; Const 1963, art I, § 2.

In Manistee Bank & Trust Co v McGowan, 394 Mich 655; 232 NW2d 636 (1975), the Supreme Court discussed at length the appropriate tests to be applied in equal protection challenges to particular legislation. The test to be employed depends upon the nature of the individual interest affected by the legislation:

"[T]he United States Supreme Court developed a two-tiered approach to equal protection cases.
"If the interest is 'fundamenta? or the classification 'suspect’, the court applies a 'strict scrutiny’ test requiring the state to show a 'compelling’ interest which justifies the classification. Rarely have courts sustained legislation subjected to this standard of review.
"Other legislation, principally social and economic, is subjected to review under the traditional equal protection test. The burden is on the person challenging the classification to show that it is without reasonable justification. It has been said that '[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it’. A classification will stand unless it is shown to be 'essentially arbitrary’. Few statutes have been found so wanting in 'rationality’ as to fail to satisfy the 'essentially arbitrary’ test.” (Footnotes omitted.) 394 Mich at 668.

Plaintiffs maintain that the candidate requirements burden several fundamental rights, including the right to interstate travel, the right to vote, and the right to freedom of association. Accordingly, plaintiffs assert that the present requirements must satisfy the "compelling state interest” test to survive constitutional attack. Defendants respond that the requirements do not adversely affect fundamental rights, and thus should be reviewed under the less stringent "reasonable basis” standard. Defendants further argue that the city’s rationale for the requirements will satisfy either test.

Our research has led us to several cases out of the Federal courts which have dealt with durational residence requirements imposed by various Michigan communities. These cases effectively analyze the principal arguments raised by the present parties.

In Green v McKeon, 468 F2d 883 (CA 6, 1972), the Sixth Circuit considered the validity of a two-year residency requirement for elective office in Plymouth, Michigan. The Green Court initially discussed the question of whether there was a fundamental right to run for elective office. Citing Bullock v Carter, 405 US 134; 92 S Ct 849; 31 L Ed 2d 92 (1972), the Court held that while there is no recognized constitutional right to become a candidate, the strict scrutiny or compelling state interest test would be applied to residence requirements if it could be shown that the restrictions had "a real and appreciable impact on the exercise of the franchise”. 405 US at 144. At some point, residential prerequisites for candidates can thus be so restrictive that, because they limit the pool of candidates, they intrude upon the traditionally fundamental right to vote. Bullock v Carter, supra.

The Green Court, however, deferred ruling on whether the Plymouth two-year residency rule was so restrictive as to "trigger application of the more stringent standard”, choosing instead to base its decision on a separate ground, that being the effect of the residency rule on the right to travel:

"The durational residency requirement at issue classifies Plymouth residents on the basis of recent travel. That classification alone requires that the requirement be strictly scrutinized because it operates to penalize the exercise of the basic constitutional right to travel. Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 31 L.Ed. 2d 274 (1972). It is not material that the classification denies new residents something that is not a constitutional right, i.e., the right to become a candidate for public office.” 468 F2d at 884.

Arguing that the two-year rule satisfies the strict scrutiny test, the city contended that the requirement was necessary to insure that potential candidates for office in Plymouth be familiar with the problems of the city and the form of the city government. The Court rejected this argument.

"We hold that the two year residence requirement is too broad for the achievement of that objective.
" 'It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means which unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with "precision,” * * * and must be "tailored” to serve their legitimate objectives. * * * And if there are other, reasonable ways to to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose "less drastic means.” ’ Dunn v Blumstein, supra, 405 U.S. at 343, 92 S. Ct. at 1003 (citations omitted).
"The restriction is in no way 'tailored’ to achieve the stated municipal goal. It permits a two year resident of Plymouth to hold public office regardless of his lack of knowledge of the governmental problems of the city. On the other hand, it excludes more recent arrivals who have had experience in local government elsewhere or who have made diligent efforts to become well acquainted with the municipality.” 468 F2d at 885.

The Green Court went on to state that the interest the city was seeking to protect, that candidates be informed and thereby qualified to hold office, would be insured by the elective process itself:

"Further, in our representative form of government, the voters are the arbiters of the suitability of candidates for public office. Whether a candidate has the ability to carry out the duties of a particular city office, even though he arrived in Plymouth less than two years prior to election day, is a matter for consideration by the voters in choosing between candidates running for that office. Opposing candidates undoubtedly will bring this deficiency, if it is one, to the attention of the electorate in the course of campaigning.” 468 F2d at 885.

In three cases out of Federal district courts in Michigan, durational residency requirements were held invalid for reasons substantially identical to those expressed in Green v McKeon, supra. In Alexander v Kammer, 363 F Supp 324 (ED Mich, 1973), the court invalidated the City of Pontiac’s requirement that candidates for city commissioner be residents of Pontiac for five years and residents of the particular commissioner’s district for two years. Citing Bullock, supra, and Dunn, supra, the Alexander court applied the compelling state interest test and concluded, as in Green, supra, that the city’s interest in guaranteeing knowledgeable candidates did not justify the durational residence rule:

"Even assuming that the interests asserted by the City qualify as 'compelling,’ the residency requirement in this case must fail. The fit of means to ends is far too imprecise to satisfy the 'tailoring’ standard. Were this test satisfied, it is still questionable whether the mutual familiarity between candidates and the City which Pontiac wishes to promote is sufficiently compelling to justify any significant infringement upon the right to vote. That right gives rise to a presumption that 'the voters are the arbiters of the suitability of candidates for public office.’ Green v McKeon, 468 F.2d 883, 885 (6th Cir. 1972). That freedom of choice may not lightly be restricted.” 363 F Supp at 327.

Similar results were reached in Mogk v Detroit, 335 F Supp 698 (ED Mich, 1971), and Bolanowski v Raich, 330 F Supp 724 (ED Mich, 1971). In Mogk the court struck down a three-year residency rule for candidates for the city’s charter commission. In Bolanowski, the court found invalid a three-year residence rule for the office of mayor of Warren, Michigan. The equal protection discussions in each of these cases paralleled those in Green and Alexander.

These cases concerning Michigan cities follow the majority of jurisdictions that have considered durational residence requirements. See McKinney v Kaminsky, 340 F Supp 289 (MD Ala, 1972), Draper v Phelps, 351 F Supp 677 (WD Okla, 1972), Smith v Evans, 42 Cal App 3d 154; 116 Cal Rptr 684 (1974), Cowan v Aspen, 181 Colo 342; 509 P2d 1269 (1973), and cases collected in 65 ALR3d 1048. But see Chimento v Stark, 353 F Supp 1211 (D NH, 1973), aff'd without opinion, 414 US 802; 94 S Ct 125; 38 L Ed 2d 39 (1973), Gilbert v State, 526 P2d 1131 (Alas, 1974).

Our review of the cited cases convinces us that both candidate requirements of the Grosse Pointe Park City Charter violate the guarantees of equal protection. In regard to the two-year residency rule, we find that the restriction does substantially affect the fundamental right of free travel between the states, thus requiring defendants to demonstrate that the provision serves a compelling state interest. The city’s purported justification for the residency rule, that being to insure that candidates are knowledgeable about local procedures and laws and known to the electorate, does not meet this strict standard. We agree with the decisions in Green, supra, Alexander, supra, Bolanowski, supra and Mogk, supra, that a flat residency rule is too vague and overreaching to be upheld as the least burdensome method of protecting the city’s interests. We also have confidence, as expressed in the previous opinions, that the normal processes of our elective system will sufficiently insure that only qualified and knowledgeable candidates will gain office.

The five-year licensing provision exhibits similar deficiencies. As with the residency rule, the license requirement will discriminate against formerly out-of-state attorneys who have recently moved to Grosse Pointe Park. In this manner the provision adversly affects the right to travel. The city’s argument that the license rule serves the public’s interest in having only candidates that are experienced in the law likely to be applied in the municipal court is belied by the fact, as pointed out by plaintiffs, that the charter requires only the existence of a license for five years, with no requirement that the candidate ever in fact practiced in a legal capacity. The restriction is too broad to fulfill its stated objective since it does not insure that all candidates are knowledgeable in the law. At the same time it may exclude candidates who are highly qualified and clearly capable of performing to the most exacting standards. Again, free debate between the candidates should point out any defects in a particular candidate’s legal qualifications, thereby allowing the voters to make an informed yet unfettered decision at the polls.

We hold that §§ 5.1 and 15.3 of the Grosse Pointe Park City Charter affect fundamental interests of potential candidates and, the city having failed to demonstrate that the provisions serve a compelling state interest, thus are unconstitutional as violative of equal protection. The judgments of the trial court are affirmed. No costs, a public question being involved.

       Section 5.1 of the Grosse Pointe Park Charter reads in part:
      "No person shall hold any elective office of the city unless he has been a resident of the city or Village for at least two years immediately prior to the last day for filing petitions for such office and is also a qualified and registered elector of the city on such day and throughout his tenure of office.
      "The Municipal Judge (justice of the peace) shall, in addition, have the qualifications for that office prescribed in Section 15.3.”
      Section 15.3 reads:
      "The presiding officer of the Court shall meet the eligibility requirements contained in Section 5.1 and, in addition, shall have been an attorney admitted to practice law in the Supreme Court of this state for a period of five years immediately preceding the date of his appointment or election. Neither he nor his business partners or employees shall have any part in any case before this Court.”

       Plaintiff Grano had become a licensed member of the Michigan Bar in 1977 and had not lived in Grosse Pointe Park for two years prior to his filing date.

       In fact, the incumbent judge (who did not seek re-election) had brought a substantially identical lawsuit challenging the charter requirements in 1973. The trial court (as in the case at bar) found the requirements to be unconstitutional and ordered the petitions to be accepted, culminating in the incumbent’s eventual election victory. Urso v Clerk of the City of Grosse Pointe Park, Wayne County Circuit Court #73-240-526. The city did not appeal the 1973 case.

        Urso v Clerk of the City of Grosse Pointe Park, supra, Grobbel v Clerk of the City of Grosse Pointe Park, Wayne County Circuit Court #73- 241-722 CZ.

        Shapiro v Thompson, 394 US 618; 89 S Ct 1322; 22 L Ed 2d 600 (1969).

        Dunn v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1972), Bullock v Carter, 405 US 134; 92 S Ct 849; 31 L Ed 2d 92 (1972).

        Mancuso v Taft, 476 F2d 187 (CA 1, 1973), Headlee v Franklin County Board of Elections, 368 F Supp 999 (SD Ohio, 1973).

       468 F2d at 884.

       Although it is true that certain nonresident attorneys are licensed to practice law in Michigan and thus could satisfy the five-year rule immediately upon moving to Grosse Pointe Park, this fact merely decreases tjje number of persons in the excluded class by a minimal amount. The vast majority of out-of-state attorneys will be precluded from becoming candidates for some period of time up to five years.


source: Caselaw Access Project

author: N. J. Kaufman, P. J.

license: Public Domain

text:
    PEOPLE v ROCHA
    Docket No. 77-2935.
    Submitted June 12, 1978, at Detroit.
    Decided October 17, 1978.
    Leave to appeal applied for.
    Defendant, Domingo Rocha, was convicted, on his plea of guilty, of possession of heroin and was placed on probation. During the term of his probation he was charged with two counts of possession of heroin with intent to deliver. Prior to trial on these charges a probation revocation hearing was held contrary to defendant’s request for an adjournment pending disposition of the underlying charges. Defendant refused to testify or take part in the proceeding and was found guilty in Recorder’s Court of Detroit, Joseph A. Gillis, J., of violating his probation. Defendant appeals. Held:

    For reasons of public policy the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation and any evidence derived therefrom is inadmissible against the probationer during subsequent proceedings on the related criminal charges, except for purposes of impeachment or rebuttal where the probationer’s revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceedings are só clearly inconsistent as to warrant the trial court’s admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing; the probationer must be advised before he takes the stand at the revocation hearing that his testimony and its fruits will not be admissible against him at a subsequent criminal trial and failure to so advise is reversible error.

      References for Points in Headnotes
    [1] 16 Am Jur 2d, Constitutional Law § 579.
    21 Am Jur 2d, Criminal Law § 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.
    [2, 3] 21 Am Jur 2d, Criminal Law §§ 567, 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.

      Reversed and remanded.
    1. Criminal Law — Constitutional Law — Due Process — Probation —Probation Revocation Hearings.
    A probationer is entitled to certain due process rights at a probation revocation hearing, including the opportunity to be heard in person and to present witnesses and documentary evidence.
    2. Criminal Law — Probation—Probation Revocation Hearings— Evidence — Mitigation Evidence.
    The evidence which a probationer may present and the trier must consider at a probation revocation hearing includes mitigating circumstances because the probation revocation process encompasses a two-step analysis: (1) a factual determination of whether the probationer violated the terms of his probation; and (2) a discretionary determination of whether the violation warrants revocation.
    3. Criminal Law — Probation—Probation Revocation Hearings Alleging Criminal Offense — Probation Revocation Hearing Before Trial — Evidence—Testimony of Probationer— Public Policy.
    For reasons of public policy the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation and any evidence derived therefrom is inadmissible against the probationer during subsequent proceedings on the related criminal charges, except for purposes of impeachment or rebuttal where the probationer’s revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceedings are so clearly inconsistent as to warrant the trial court’s admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing; the probationer must be advised before he takes the stand at the revocation hearing that his testimony and its fruits will not be admissible against him at a subsequent criminal trial and failure to so advise is reversible error.

      Frank J. Kelley, Attorney General, Robert A.

      Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney.

      Markus S. Simon, for defendant.
    Before: N. J. Kaufman, P.J., and Beasley and P. R. Mahinske, JJ.

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

   N. J. Kaufman, P. J.

On December 17, 1976, defendant pled guilty to possession of heroin, contrary to MCL 335.341(4)(a); MSA 18.1070(41)(4)(a). He was sentenced to two years probation. On April 6, 1977, defendant was charged with two counts of possession of heroin with intent to deliver, MCL 335.341(l)(a); MSA 18.1070(41)(1)(a). He pled not guilty to these new charges.

Probation violation proceedings were then instituted and a hearing held on April 22, 1977. At the hearing, defense counsel requested an adjournment pending disposition of the underlying criminal charges. The court denied this request and proceeded with the hearing. Prosecution witnesses testified as to the circumstances of the violation, but defense counsel refused to cross-examine them. Defendant refused to testify in his own behalf, specifically because he feared that any incriminating statements he might make would be used against him at a later trial.

Despite defendant’s objections, the court found him guilty of probation violation and sentenced him to three to eight years in prison on April 29, 1977. Defendant appeals as of right.

At issue in this appeal is the propriety of the prosecution’s timing of the probation revocation hearing prior to the trial on the underlying criminal charges. Our Court has discussed facets of this problem in three recent cases. In People v Baines, 82 Mich App 438; 266 NW2d 839 (1978), the Court saw the issue as whether the trial court’s refusal to delay the probation revocation hearing violated defendant’s Fifth Amendment right against self-incrimination. After noting that the trend of authority favored holding the trial first, the Court declined to reach the substantive issue because the defendant had in fact testified at the probation revocation hearing and later pled guilty to the underlying offense. Thus, the prejudice feared was not thought to be present.

When defendant Baines appealed from his guilty plea conviction, this Court had occasion to consider another aspect of the problem. People v Baines, 83 Mich App 570, 573; 269 NW2d 228 (1978). Baines argued that holding the revocation hearing first created " 'unjustifiable tension’ between the defendant’s rights to due process and the right to be free from duress when he enters a plea”. The Court rejected this argument, viewing it as essentially an attack on the process of plea bargaining itself. Judge D. E. Holbrook, Jr., dissenting, wrote:

"Absent a rule preventing the use of a probationer’s revocation hearing testimony at the subsequent trial, I believe it is fundamentally unfair to hold the revocation hearing prior to the trial on the substantive offense when the sole basis for revoking probation is a finding that the probationer committed the substantive offense. Whether or not constitutionally mandated, such a rule is necessary to prevent a chill on a probationer’s exercise of his right to due process of law and his privilege against self-incrimination.” 83 Mich App at 574.

We agree with the above analysis and, but for the fact that defendant Baines did take the stand at the probation revocation hearing and did not claim any violation of his constitutional rights, we would find the present case indistinguishable from Baines.

The third case to consider the problem of timing was People v Nesbitt, 86 Mich App 128; 272 NW2d 210 (1978). In that case as well, the defendants failed to preserve the issue and suffered no prejudice, because they testified at the hearing without first objecting on Fifth Amendment grounds or requesting an adjournment. The Court implied that there might be Fifth Amendment problems should the prosecutor seek to introduce the hearing testimony at a subsequent trial, but stated that the appropriate proceeding to resolve them would be the trial itself. Despite this, the Court then went on to state, in the context of reviewing a statutory argument presented by defendants, that there was "no reason” why the revocation hearing should not precede the trial. Judge Riley, concurring in the result, wrote that this language was unnecessary to the decision and too broad in scope.

In the case at bar the situation is ripe for decision on the principal issue. Defendant Rocha was deterred from taking the stand at the probation revocation hearing, due to his fear that his testimony would be used in a subsequent trial on the underlying charge.

Although a probation revocation hearing is not a criminal trial, the probationer is entitled to. certain due process rights at that proceeding. These rights include the "opportunity to be heard in person and to present witnesses and documentary evidence”. Morrissey v Brewer, 408 US 471, 489; 92 S Ct 2593; 33 L Ed 2d 484 (1972), Gagnon v Scarpelli, 411 US 778, 786; 93 S Ct 1756; 36 L Ed 2d 656 (1973). At a probation revocation hearing, unlike a criminal trial, the evidence which the defendant may present and the trier must consider includes mitigating circumstances. This is because probation revocation encompasses a two-step analysis: 1) a factual determination of whether the defendant violated the terms of his probation, and 2) a discretionary determination of whether the violation warrants revocation. Morrissey, 408 US at 479-480; Gagnon, 411 US at 784; People v Clements, 72 Mich App 500, 503; 250 NW2d 100 (1976), People v Givens, 82 Mich App 336, 339; 266 NW2d 815 (1978). Upon a finding that the defendant has violated probation, the court still may wish to permit him to retain his conditional liberty if the circumstances of the case so warrant. Clements, supra, pp 504-505.

The importance of the defendant’s right to present evidence in mitigation was stressed by the California Supreme Court in People v Coleman, 13 Cal 3d 867, 874; 120 Cal Rptr 384; 533 P2d 1024 (1975):

"A probationer is by definition a convicted lawbreaker. Insofar as a probationer seeks at a revocation hearing to deny or contradict the evidence of a probation violation, he is generally at a disadvantage in terms of the credibility of his testimony. His testimony is likely to be more readily accepted, and hence more useful to the court, insofar as it adds to rather than detracts from the factual picture presented by the state, through the probationer’s explanation of his actions and account of the circumstances surrounding an alleged probation violation. But such mitigating evidence is just what is most likely to be withheld from the court by virtue of the probationer’s fear of self-incrimination, since mitigating evidence often involves damaging factual admissions coupled with more or less compelling moral excuses.” (Emphasis added.)

The Coleman Court held that the prosecutor must either grant use and derivative use immunity for defendant’s probation revocation hearing testimony, or else hold the violation hearing after the trial on the underlying charge. Rhode Island’s Supreme Court has reached the same result. State v DeLomba, 370 A2d 1273 (RI, 1977). Both Courts were concerned with possible prosecutorial misuse of a fair government-individual balance. As stated in Coleman:

"Indeed, to the extent that the object of the prosecution is simply to secure the probationer’s incarceration, whether by revocation of probation or by conviction and sentencing for the new offense, the prosecution’s instigation of a pretrial probation revocation hearing currently puts it in a 'tails we win, heads you lose’ position vis-a-vis the probationer. Because of the inapplicability of certain evidentiary rules and the lower standard of proof obtaining at a probation revocation hearing, the People are generally more likely to achieve a probationer’s incarceration through the probation revocation process than through the new prosecution and conviction. When a probationer is deterred from testifying at his revocation hearing by fears of self-incrimination at his subsequent trial, the People’s chances of securing his incarceration through the revocation proceeding are further enhanced. And if a probationer does successfully fight revocation by testifying at the hearing, the People’s chances of securing his conviction of a new offense will have been improved by the probationer’s having been forced, in effect, to be one of the prosecution’s principal witnesses in its case in chief at his trial.” Coleman, supra, 13 Cal 3d at 876-878. (Footnotes omitted.)

The present procedure forces upon the probationer a choice which he should not, in the interests of fairness, be required to make. The issue is whether forcing the defendant at a revocation hearing to choose between either testifying and incriminating himself later at trial, or else remaining silent and surrendering a valuable defense, constitutes an impermissible penalty for the exercise of the privilege against self-incrimination. We are certain that to place the defendant in such a dilemma is inconsistent with our notions of substantial justice, but we are not certain that our result is constitutionally-compelled. The United States Supreme Court has not passed upon this precise issue, and lower court cases have reached varying results. In Flint v Mullen, 499 F2d 100 (CA 1, 1974), cert den, 419 US 1026; 95 S Ct 505; 42 L Ed 2d 301 (1974), the Court held that the prosecution need not hold the trial first and need not grant immunity for testimony given at the probation revocation hearing. This result has received criticism from commentators who see the choice forced upon defendant as unconstitutional. Note, 21 Wayne L Rev 1127 (1975); Case Comment, 55 Boston U L Rev 847 (1975). In Melson v Sard, 131 US App DC 102; 402 F2d 653, 655 (1968), the Court apparently agreed, in the context of parole revocation hearings:

"If a parolee is not given the full and free ability to testify in his own behalf and present his case against revocation, his right to a hearing before the Board would be meaningless. Furthermore, his Fifth Amendment rights must not be conditioned 'by the exaction of a price.’ Accordingly, we hold that any self-incriminatory statements made in a parole revocation hearing shall not be used affirmatively against the parolee in any subsequent criminal proceeding.” (Footnotes omitted.)

Several state courts which have considered the problem have found no constitutional violation in timing the probation revocation hearing prior to the trial. See Anno: Comment Note. — Procedural Requirements, Under Federal Constitution, Applicable to Revocation of Probation or Parole, 36 L Ed 2d 1077, § 18; People v Baines, 83 Mich App at 575-576 (D. E. Holbrook, Jr., J., dissenting). As noted above, California and Rhode Island have formulated rules of immunity; however, the rules were based on public policy and not constitutional grounds.

A review of United States Supreme Court cases discloses no clear answer. See Note, 74 Mich L Rev 525 (1976). In one line of decisions, the Court has condemned the imposition of penalties for the exercise of the privilege against self-incrimination. In the first of these, Garrity v New Jersey, 385 US 493, 497-498; 87 S Ct 616; 17 L Ed 2d 562 (1967), police officers being investigated for ticket-fixing were given a "choice” between furnishing possibly incriminatory answers at a hearing, or else losing their jobs for remaining silent. The Court held that any statements thus elicited were involuntarily made and therefore inadmissible in subsequent criminal proceedings. In a companion case, Spevack v Klein, 385 US 511, 515; 87 S Ct 625; 17 L Ed 2d 574 (1967), the Court disallowed the disbarment of an attorney for failure to furnish incriminating records, stating, "In this context, 'penalty’ is not restricted to fine or imprisonment. It means * * * the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly’.”

The reasoning of Garrity and Spevack was followed in later cases involving dismissal of governmental employees following their refusal to testify or waive immunity at hearings investigating alleged criminal conduct. Gardner v Broderick, 392 US 273; 88 S Ct 1913; 20 L Ed 2d 1082 (1968); Uniformed Sanitation Men Ass’n v Comm’r of Sanitation, 392 US 280; 88 S Ct 1917; 20 L Ed 2d 1089 (1968). Finally, in Lefkowitz v Turley, 414 US 70, 85; 94 S Ct 316; 38 L Ed 2d 274 (1973), the Court held unconstitutional the withholding of public contracts from a contractor who refused to waive the Fifth Amendment privilege before a grand jury:

" '[T]he State must recognize what our cases hold: that answers elicited upon the threat of the loss of employment are compelled and inadmissible in evidence. Hence, if answers are to be required in such circumstances States must offer to the witness whatever immunity is required to supplant the privileges and may not insist that the employee or contractor waive such immunity.’ ” .

In all of the above cases, the "penalty” for remaining silent was the certain loss of a tangible benefit — a job, a contract, or the right to practice law. A different type of penalty was considered in Simmons v United States, 390 US 377, 394; 88 S Ct 967; 19 L Ed 2d 1247 (1968), — the surrender of another constitutional right. The Simmons Court held that testimony given in support of a motion to suppress evidence was inadmissible in a subsequent trial on the issue of guilt, finding it "intolerable that one constitutional right should have to be surrendered in order to assert another”.

In the case at bar, the probationer’s dilemma at the revocation hearing could be likened to those faced by the defendants in Simmons, Garrity, and other cases involving a penalty for the exercise of Fifth Amendment rights. However, the choice-of-rights reasoning utilized in Simmons was declared "open to question” in McGautha v California, 402 US 183, 212-213; 91 S Ct 1454; 28 L Ed 2d 711 (1971). McGautha involved a challenge to the state’s procedure whereby both guilt and punishment in a capital case were determined by the jury in a single proceeding. Defendant argued that he had been forced to give up his right to remain silent on the issue of guilt in order to exercise his due process right to address his sentencer (allocution). The McGautha Court agreed that this was a difficult choice, but found no constitutional violation:

"Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshhold question is whether compelling the election impairs to an appreciable extent any of the policies behind the rights involved.” 402 US at 213.

The Court answered the above question in the negative, stating that the choice was no worse than that always present in every criminal case where after hearing the state’s evidence the defendant must decide whether to take the stand.

McGautha’s precedential value appears to have been limited by the decision in Brooks v Tennes see, 406 US 605; 92 S Ct 1891; 32 L Ed 2d 358 (1972), where the Court struck down a statute requiring the defendant to testify, if at all, before any other defense witnesses testified. The Court pointed out that a defendant may not be able to tell if his testimony will be helpful until he has seen how his other witnesses stand up under examination. Tennessee’s procedure did not allow a defendant to make his choice of whether to testify in the "unfettered exercise of his own will”; it cut down on the privilege to remain silent "by making its assertion costly”. 406 US at 610-611, quoting Griffin v California, 380 US 609, 614; 85 S Ct 1229; 14 L Ed 2d 106 (1965).

No standard emerges from the above cases for determining when a restricted choice between constitutional rights is itself unconstitutional, and when it is merely a difficult tactical decision. The only distinguishing feature appears to be the nature of the state’s burden required to effectuate the defendant’s claim. In McGautha, the defendant in effect requested that the traditional form of trial used in several states be abolished and replaced by an entirely different procedure. In Simmons and Brooks, however, no radical departure from legal tradition and no improper exercise of rulemaking power by the Court was necessary. Our case is more similar to Simmons and Brooks in this respect. There already exists a bifurcated procedure for determining probation revocation and guilt on the underlying charge, and all that is necessary to alleviate the burden on defendant’s constitutional rights is a grant of immunity for testimony which should be inadmissible anyway under the Garrity rationale. Thus, the present case could be distinguished from McGautha on its facts.

Alternatively, were we to apply the McGautha standard, we could find that compelling the election between constitutional rights in this case does impair to an appreciable extent the policies behind the rights involved. See our discussion of Coleman, supra.

However, the viability of either of these approaches is questionable, due to the recent decision in Baxter v Palmigiano, 425 US 308; 96 S Ct 1551; 47 L Ed 2d 810 (1976). In Baxter a prison inmate at a disciplinary hearing was informed that he had the right to remain silent, but that his silence would be used against him. No criminal proceedings were then pending on the violation which was the subject of the hearing. The Supreme Court first held that use immunity would be required in a later criminal trial:

"Prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered 'whatever immunity is required to supplant the privilege’ and may not be required to 'waive such immunity.’ ” 425 US at 316, quoting Lefkowitz, supra, 414 US at 85.

The Baxter Court saw no violation of the above principle or the principle of Griffin v California, supra, forbidding the use of a defendant’s silence against him, in the state’s procedure. The Court stated:

"The Rhode Island prison rules do not transgress the foregoing principles. No criminal proceedings are or were pending against Palmigiano. The State has not, contrary to Griffin, sought to make evidentiary use of his silence at the disciplinary hearing in any criminal proceeding. Neither has Rhode Island insisted or asked that Palmigiano waive his Fifth Amendment privilege. * * * [T]his case is very different from the circumstances before the Court in the Garrity-Lefkowitz decisions, where refusal to submit to interrogation and to waive the Fifth Amendment privilege, standing alone and without regard to the other evidence, resulted in loss of employment or opportunity to contract with the State. There, failure to respond to interrogation was treated as a final admission of guilt. Here, Palmigiano remained silent at the hearing in the face of evidence that incriminated him; and, as far as this record reveals, his silence was given no more evidentiary value than was warranted by the facts surrounding his case.” 425 US at 317, 318.

Justice Brennan, joined by Justice Marshall, dissenting, wrote that the penalty imposed — 30 days in punitive segregation — made the assertion of the privilege more costly. "On the whole, the record inspires little confidence that [defendant’s] silence was not the sole basis for the disciplinary conviction.” 425 US at 332, fn 6. Justice Brennan thought the case indistinguishable from Garrity and Lefkowitz:

"The compulsion upon Palmigiano is as obvious as the compulsion upon the individuals in Garrity-Lefkowitz. He was told that criminal charges might be brought against him. He was also told that anything he said in the disciplinary hearing could be used against him in a criminal proceeding. Thus, the possibility of self-incrimination was just as real and the threat of a penalty just as coercive.” (Footnote omitted.) 425 US at 333.

Finally, Justice Brennan saw in the majority’s decision a violation of "one of the fundamental purposes of the Fifth Amendment: to preserve our adversary system of criminal justice by preventing the government from circumventing that system by abusing its powers”. (Emphasis in original.) Id. at 334. There was nothing to indicate that the disciplinary proceeding was not used as a discovery device for later criminal prosecutions; a grant of immunity at trial would be of no value to an uncounselled inmate who at the hearing did not know that such immunity would be forthcoming.

The Baxter decision, like the First Circuit’s decision in Flint v Mullen, supra, has received much criticism. See Note, 29 Baylor L Rev 620 (1977); Note, 55 North Carolina L Rev 254 (1977); Comment, 1976 Utah L Rev 572 (1976). It has also been applied in a situation where criminal proceedings were pending against the inmate. Roberts v Taylor, 540 F2d 540 (CA 1, 1976), cert den, 429 US 1076; 97 S Ct 819; 50 L Ed 2d 796 (1977). The Roberts Court, viewing the "critical factor” in Baxter to be the fact that remaining silent did not automatically result in a finding of guilt, held that the failure to grant immunity at the hearing did not invalidate the disciplinary conviction. Defendant Roberts, like defendant Rocha, had specifically refused to testify at the hearing for fear that his testimony would be used against him at trial. See also, Tinch v Henderson, 430 F Supp 964 (D Tenn, 1977); Morale v Grigel, 422 F Supp 988 (D NH, 1976).

The impact of Baxter on the case at bar is unclear. On the one hand, Baxter could be distinguished because it involved a prison disciplinary hearing at which even the minimum due process rights of Morrissey and Gagnon, supra, do not apply. Wolff v McDonnell, 418 US 539; 94 S Ct 2963; 41 L Ed 2d 935 (1974). This difference can, of course, cut both ways: it could be said that the relative absence of rights at the prison hearing makes the defendant’s testimony even more important there than it is at a probation revocation hearing. See Coleman, supra, 13 Cal 3d at 883-884.

Furthermore, the reasoning employed by the Baxter Court may indicate that a prison-probation hearing distinction is unwise. In both contexts, the final determination cannot be made upon the basis of the accused’s silence alone, and the "penalty” for assertion of the Fifth Amendment privilege is not the certain loss of a tangible benefit as in Lefkowitz and Garrity. This Court views the penalty of loss of liberty as more onerous than that of prison discipline, and as much more onerous than that of the loss of a job or a contract, see Flint v Mullen, 372 F Supp 213, 219 (D RI, 1973), but we are uncertain that Baxter leaves room for such a distinction. Justice Brennan’s dissent in Baxter focused upon the same points which we do here: the importance of the defendant’s testimony at the hearing and the policy of maintaining a fair state-individual balance. These were factors which the Baxter majority apparently found insufficient to invalidate the disciplinary conviction.

For these reasons, we are constrained to base our holding upon public policy rather than constitutional grounds. We adopt the holding of the California Supreme Court in People v Coleman, supra, 13 Cal 3d at 889:

"We accordingly declare as a judicial rule of evidence that henceforth upon timely objection the testimony of a probationer at a probation revocation hearing held prior to the disposition of criminal charges arising out of the alleged violation of the conditions of his probation, and any evidence derived from such testimony, is inadmissible against the probationer during subsequent proceedings on the related criminal charges, save for purposes of impeachment or rebuttal where the probationer’s revocation hearing testimony or evidence derived therefrom and his testimony on direct examination at the criminal proceedings are so clearly inconsistent as to warrant the trial court’s admission of the revocation hearing testimony or its fruits in order to reveal to the trier of fact the probability that the probationer has committed perjury at either the trial or the revocation hearing.”

This rule will eliminate the possibility of illegitimate use of a probation revocation hearing as a discovery device, but will at the same time foster the interests of both the state and the defendant in a prompt, full and truthful disclosure of evidence at the hearing. Coleman, supra; DeLomba, supra, p 1276. We see no prejudice to the prosecution stemming from such a rule.

We also hold, in recognition of the concerns expressed by Justice Brennan in Baxter, supra, that the probationer must be advised before he takes the stand at the revocation hearing that his testimony and its fruits will not be admissible against him at a subsequent criminal trial on the underlying offense. As this was not done in the present case, we must reverse.

Defendant’s conviction for probation violation is reversed and the cause is remanded for further proceedings consistent with this opinion.

       The trial court’s increase in the maximum sentence was based on MCL 335.348; MSA 18.1070(48) which permits doubling the sentence otherwise authorized when defendant is convicted of a "second or subsequent offense” relating to drugs. Reliance on this statute was improper, because the Federal conviction occurred after December 17, 1976, the date of defendant’s conviction on the instant charge.

       "The American Bar Association’s Standards Relating to Probation (Approved Draft, 1970), § 5.3 provides: 'A revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge.’ The commentary points out that a prior revocation hearing with its lower standard of proof and concomitantly greater incentive to present an active defense might 'compromise’ the privilege against self-incrimination. Id., at 63. The Model Penal Code would go further and require a conviction before probation can be revoked for that crime. Model Penal Code, § 301.3, Comment (Tent. Draft No. 2, 1954), pp 150-151. The California Supreme Court, for one, has banned the use of probation revocation hearing testimony in a later criminal trial; the court was acting in its supervisory capacity but the self-incrimination problem was the reason for the rule. People v Coleman, 13 Cal 3d 867; 120 Cal Rptr 384; 533 P2d 1024 (1975).” People v Baines, 82 Mich App at 441, fn 1; 266 NW2d 839 (1978).


author: D. E. Holbrook, J. M. F. Cavanagh, P.J.

text:
    PEOPLE v DAVIS
    Docket No. 77-3286.
    Submitted March 7, 1978, at Grand Rapids.
    Decided October 17, 1978.
    Leave to appeal applied for.
    The Isabella County Prosecuting Attorney petitioned the Isabella Circuit Court for the appointment of a special prosecutor to conduct an investigation into possible criminal activity in the Isabella County Sheriffs Department. The court, Paul F. O’Connell, granted the prosecutor’s petition. The special prosecutor conducted an investigation and thereafter authorized the issuance of warrants charging defendant, Lee H. Davis, with certain criminal activities, both felonies and misdemeanors. A preliminary examination was held on the felony charges and they were dismissed on the grounds of insufficient evidence. The misdemeanor charges were not tried at the time. The defendant then filed a motion in circuit court to set aside the appointment of the special prosecutor. The Isabella Circuit Court, David E. Burrows, J., entered an order setting aside the appointment of the special prosecutor and dismissing the warrants authorized by him. The people appeal. Held:

    The trial court properly ruled that a circuit court judge does not have statutory authority to appoint a special prosecutor to investigate possible criminal activity, issue warrants and initiate prosecution in district court. The judge erred in dismissing the warrants issued by the special prosecutor since the prosecutor had a fair color of title to the office and was, therefore, a de facto officer whose authority could not be attacked collaterally, but required a proceeding initiated directly for that purpose. The circuit court action to set aside the appointment of the special prosecutor satisfied this requirement. The appointment of the special prosecutor was properly set aside. Effective with the trial court’s ruling the de facto status of the special prosecuting attorney ended.

      References for Points in Headnotes
    [1] 46 Am Jur 2d, Judges § 27.
    [2, 3] 63 Am Jur 2d, Public Officers and Employees §§ 516-519.
    [4] 63 Am Jur 2d, Prosecuting Attorneys §§ 24, 29.
    Disqualification of prosecuting attorney on account of relationship with accused. 31 ALR3d 953.
    [5] 63 Am Jur 2d, Public Officers and Employees § 494.
    [6] 63 Am Jur 2d, Prosecuting Attorneys §§ 6-13.
    [7] 63 Am Jur 2d, Public Officers and Employees § 493.

      Affirmed in part, reversed in part.
    M. F. Cavanagh, P.J., dissented and would hold that the prosecutor’s close relationship with the sheriff’s department, in which defendant was a deputy, or the prosecutor’s role as defense counsel in a suit against the sheriff’s department, in which suit defendant was a witness for the plaintiff, did not constitute a disability within the meaning of the statute regarding the right to procure an assistant prosecuting attorney. The prosecutor should not be allowed to abdicate his duties merely because the defendant is a member of a law enforcement agency with which the prosecutor frequently works. The suspect’s identity as a police officer does not present, by itself, a sufficient conflict of interest to constitute a disability to prosecute. Therefore, the circuit court was not authorized to appoint the special prosecutor. Invoking the rule, that a defendant in a criminal proceeding cannot prevail by attacking the authority of one in public office because, as to the public interests, there is no difference between the acts of de facto and de jure officers, cannot be justified where the needs of public justice could be adequately served by recommencing the proceedings with a de jure prosecutor.
    Opinion of the Court
    1. Courts — Circuit Courts — District Courts — Authority—Criminal Law — Special Prosecutors — Appointment—Statutes.
    A circuit court judge does not have statutory authority to appoint a special prosecutor to investigate possible criminal activity, issue warrants and initiate prosecution in district court (MCL 49.160; MSA 5.758).
    2. Appeal and Error — Criminal Law — Warrants—Dismissal—De Facto Officers — Public Policy — Public Justice — Collateral Attack — Authority of De Facto Officer.
    A trial court erred in dismissing warrants issued by a special prosecutor who was a de facto officer when the warrants were issued because the de facto doctrine will validate, on grounds of public policy and to prevent a failure of public justice, the acts of officials who function under color of law; the authority of a de facto officer may not be attacked collaterally but must be attacked in a proceeding instituted directly for that purpose.

      3. District and Prosecuting Attorneys — Special Prosecutors— Criminal Law — Appointment—Judges—Circuit Courts — De Facto Officers.
    A special prosecutor who had been appointed by a circuit judge to investigate possible criminal activity, issue warrants and initiate prosecution in district court may be held to be a de facto officer in instances where he was in possession and exercised the duties of the office, and where he had a fair color of title to the office even though his incumbency was illegal because the circuit judge did not have the power to appoint him for the purposes intended.
    Dissent by M. F. Cavanagh, P. J.
    4. District and Prosecuting Attorneys — Conflicts of Interest— Disability to Prosecute — Statutes.

      A prosecutor’s close relationship with a sheriff’s department, in which a defendant is a deputy, or the prosecutor’s role as defense counsel in a suit against the sheriff’s department, in which suit defendant was a witness for the plaintiff, does not, by itself, present a sufficient conflict of interest to constitute a disability to prosecute within the meaning of the statute regarding the right of a prosecutor to procure assistance (MCL 776.18; MSA 28.1273).

    5. Officers — De Facto Officers — Definition—Official Acts — Challenges.

      A de facto officer is one whose official status is at least colorable or has been assumed or conceded such that his putatively official acts, once acquiesced in, cannot later be challenged as without the power of office.

    6. Criminal Law — Appeal and Error — District and Prosecuting Attorneys — Warrants—Circuit Courts — Challenges to Authority.

      Warrants issued by a special prosecutor who had been erroneously appointed to his office are properly quashed by a circuit court where the appointed prosecutor’s power was attacked at a pretrial conference preceding the preliminary examination and then successfully challenged by motion in the circuit court.

    7. Criminal Law — Officers—Public Officers — De Facto Officers —De Jure Officers — Public Policy — Rule—Necessity.

      The rule that a defendant in a criminal proceeding cannot prevail by attacking the authority of one in public office because, as to the public interests, there is no difference between

      the acts of de facto and de jure officers, is followed upon the high ground of public policy and to prevent a failure of public justice; therefore, invocation of the rule is not justiñed, in an action to set aside the alleged unauthorized appointment of a special prosecutor, where recommencing the proceedings with a de jure prosecutor will adequately serve the needs of public justice.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Joseph T. Barberi', Prosecuting Attorney, and Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service, for the people.

      Starr & Cornell, for defendant.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook and Beasley, JJ.
   D. E. Holbrook, J.

On August 5, 1977, an Isabella County acting circuit judge set aside the previous appointment by an Isabella County circuit judge of a special prosecutor to investigate possible criminal activity in the sheriffs department. The people appeal as of right.

On June 9, 1977, the Isabella County Prosecuting Attorney petitioned the Isabella County circuit court for the appointment of a special prosecutor. The petition states as follows:

"NOW COMES Joseph T. Barberi, Prosecuting Attorney in and for Isabella County, Michigan, and respectfully shows unto this Honorable Court as follows:
"That an investigation needs to be conducted pertaining to the sale of a .38 calibur [sic] S&W Revolver, serial number D138195 previously reported as being stolen, said sale allegedly being made by a Deputy Sheriff.
"That a conflict of interest exists with regard to such investigation for the reason that a close working relationship exists between the Prosecuting Attorney’s Office and the Isabella County Sheriffs Department. The Prosecuting Attorney’s Office also is defending the Sheriffs Department in a civil law suit in which the possible Defendant is one of the alleged witnesses.
"That because of the conflict of interest, your Petitioner prays that a Special Prosecuting Attorney be appointed by the Court to conduct the investigation herein mentioned.
"Accordingly, your Petitioner prays that TIMOTHY J. TAYLOR, Attorney at Law, a member of the Isabella County Bar, be appointed by the Court to act as Special Prosecutor in this matter, with authority to perform all the duties and discharge all the functions of such office in relation to the investigation herein mentioned.”

The prosecutor’s petition was granted by an Isabella County circuit judge as follows:

"The Court having been advised that the duly elected Prosecuting Attorney of Isabella County, Joseph T. Barberi, will not be in a position to serve the People in the matter of the investigation of the sale of a stolen revolver because of a conflict of interest due to the close working relationship between the Prosecuting Attorney’s Office and the Isabella County Sheriffs Department,
"IT IS HEREBY ORDERED that Timothy J. Taylor, a member of the Isabella County Bar, is HEREBY appointed to act as Special Prosecuting Attorney of Isabella County, with authority to perform all the duties and discharge all the functions of the office of Prosecuting Attorney insofar as they pertain to the investigation herein mentioned.”

The special prosecutor conducted an investigation into the matter and on June 13, 1977, authorized the issuance of a warrant which charged the defendant with embezzlement or fraudulent conversion of certain property less than $100 in value. On July 11, 1977, the special prosecutor authorized the issuance of an "amended” warrant which charged defendant with additional counts of forging a public record with intent to defraud, receiving and concealing stolen property less than $100, and a failure to present a firearm for safety inspection.

At the preliminary examination held on July 21, 1977, the forgery and fraudulent conversion counts were dismissed on the grounds of insufficient evidence. The defendant then filed a motion in circuit court to set aside the circuit judge’s appointment of the special prosecutor. This motion was heard by the Isabella County probate judge who was sitting on assignment in the circuit court. On August 9, 1977, the acting judge entered an order setting aside the appointment of the special prosecutor and dismissing the warrants authorized by him. On August 5, 1977, the judge in his opinion wrote:

"In conclusion it is the opinion of this judge, after a careful and exhaustive search of the Michigan law, that while a circuit judge may appoint a special prosecuting attorney to act in Circuit Court, he may not appoint such a special prosecutor to investigate a criminal complaint, authorize warrants, or appear in misdemeanor cases and preliminary examinations in the district court.” (Emphasis in original.)

On August 9, 1977, the judge entered the following order:

"The Court having considered the Motion of the Defendant, Lee Howard Davis, to set aside the Order appointing Timothy J. Taylor Special Prosecuting Attorney and the Court having considered the oral arguments of the parties and having considered the Briefs of the parties and the law, and having determined that the Order should be set aside;
"IT IS HEREBY ORDERED that the Order of June 9, 1977 appointing Timothy J. Taylor Special Prosecuting Attorney be and is hereby set aside.
"IT IS FURTHER ORDERED that the warrants which were authorized by the said Timothy J. Taylor be and are hereby dismissed.”

The first issue raised on appeal is whether the circuit judge has statutory authority to appoint a special prosecutor to investigate possible criminal activity, issue warrants and initiate prosecution in district court.

On appeal the prosecutor asserts that the circuit court has inherent and statutory authority to appoint a special prosecutor for proceedings in district court. The defendant disagrees.

The power of the circuit court to appoint a special prosecutor is provided for in MCL 49.160; MSA 5.758, as follows:

"The supreme court and each of the circuit courts may whenever there shall be no prosecuting attorney for the county or when the prosecuting attorney shall be absent from the court, or unable to attend to his duties, if either of said courts shall deem it necessary, by an order to be entered in the minutes of such court, appoint some other attorney at law to perform, for the time being, the duties required by law to be performed in either of said courts by the prosecuting attorney, who shall thereupon be vested with all the powers of such prosecuting attorney for that purpose.”

A statute (How Stat § 559) which is identical to MCL 49.160; MSA 5.758 was construed by the Michigan Supreme Court in Sayles v Circuit Judge of Genesee County, 82 Mich 84; 46 NW 29 (1890). The acting circuit judge relied on this case when he held that MCL 49.160; MSA 5.758 does not authorize circuit judges to appoint special prosecutors to investigate possible crime, issue warrants and initiate prosecution in the district court.

The facts in the Sayles case indicate that Mr. Mallery wanted Mr. Sayles prosecuted for forgery. The prosecutor issued a warrant, but before the preliminary examination, he went into a copartnership with the attorneys who represented Sayles. The prosecutor disqualified himself in the case and requested that a special prosecutor be appointed. The circuit judge appointed a special prosecutor. The special prosecutor appeared before the justice of the peace who would conduct the preliminary examination and stated that he did not take an enthusiastic interest in prosecuting the case. The justice of the peace then dismissed the case. Mr. Mallery then petitioned the circuit court to appoint a special prosecutor to investigate the facts and institute criminal proceedings, if necessary. The circuit judge felt that the justice of the peace did not act properly when he discharged Mr. Sayles and appointed George Durand as special prosecutor. The defendant appealed this appointment and the Michigan Supreme Court addressed the issue of the power of a circuit judge to make this appointment.

The Court cited the statute, How Stat § 559, which is exactly the same as MCL 49.160; MSA 5.758, and stated: "This section plainly refers to cases arising in or pending in those courts, and not to cases out of such courts”. 82 Mich at 89. (Emphasis supplied.) The Court went on to say at 90:

"But the circuit judge cannot appoint a special prosecuting attorney to investigate a charge of crime, or to conduct an examination before a justice of the peace. The circuit judge is a conservator of the peace, but that does not authorize him to appoint any one to act as a public prosecutor, except in his own court, in cases over which he has jurisdiction. Even then his power is statutory.”

The language of the Supreme Court in Sayles is very specific in its interpretation of a statute which is identical to the statute in the instant case. Thus, we are constrained to hold that the circuit court does not have the power under MCL 49.160; MSA 5.758 to appoint special prosecutors for the purposes here requested. If circuit judges are to have this power, it is up to the Michigan Legislature to so provide or for the Michigan Supreme Court to reconsider the Sayles decision.

The next issue raised on appeal is whether the trial court erred in issuing the order which dismissed the warrants that the special prosecutor ordered.

The plaintiff maintains that the dismissal of the warrants authorized by the special prosecutor was improper because the de facto doctrine will validate them. The defendant alleges that there is no reason to apply the de facto doctrine in the instant case.

The de facto doctrine will validate, on grounds of public policy and prevention of a failure of public justice, the acts of officials who function under color of law. People v Townsend, 214 Mich 267, 270; 183 NW 177 (1921), People v Matthews, 289 Mich 440, 447-448; 286 NW 675 (1939).

In 46 CJ, Officers, § 366, p 1053, it states as follows:

"A person will be held to be a de facto officer when, and only when, he is in possession, and is exercising the duties, of an office; his incumbency is illegal in some respect; he has at least a fair color of right or title to the office, or has acted as an officer for such a length of time, and under such circumstances of reputation or acquiescence by the public and public authorities, as to afford a presumption of appointment or election, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be, to submit to or invoke his action; and, in some, although not all, jurisdictions, only when the office has a de jure existence.” (Footnotes omitted.)

Also see, 67 CJS, Officers, § 135, pp 438-440.

In the instant case, the special prosecutor was in possession and exercised the duties of his office. His incumbency was illegal because the circuit judge did not have the power to appoint him, for the purposes intended. However; he had a fair color of title to the office. Therefore, we apply the de facto doctrine to the instant case and hold that the judge erred in dismissing the warrants issued by the special prosecutor. The authority of the de facto officer in this instance could not be attacked collaterally, but required a proceeding instituted directly for that purpose. The instant circuit court action satisfied this requirement. 46 CJ, Officers, §366, p 1054; 67 CJS, Officers, §135, p 440. In affirming the trial court in this regard, we rule that effective with the trial court’s ruling, the de facto status of the special prosecuting attorney ended.

The case may be continued by the attorney general under MCL 14.28; MSA 3.181, or other appropriate manner.

Our holding finds support in one of our sister states. In State v Bell, 84 Idaho 153; 370 P2d 508 (1962), a special prosecutor was appointed because of the close business and personal relationship the prosecutor had with the defendant which made prosecution difficult of performance. The Court found the special prosecutor’s appointment valid and went on to say at 84 Idaho 160; 370 P2d 511-512:

"In such case, even though the appointment were defective or irregular, so far as the defendant is concerned the special prosecutor nevertheless became a de facto officer, and his appointment, and the prosecution of the action by him, was not subject to collateral attack by the defendant, in the absence of a showing that he was denied a fair trial by reason thereof.”

We need not address plaintiffs remaining issue.

Affirmed in part and reversed in part. No costs, a public question being involved.

Beasley, J., concurred.

M. F. Cavanagh, P.J.

(dissenting). I have no dispute with the majority’s conclusion that Sayles v Circuit Judge of Genesee County, 82 Mich 84, 89; 46 NW 29 (1890), precludes reliance upon MCL 49.160; MSA 5.758 as authority for appointment of a special prosecutor. However, the prosecution also argues that MCL 776.18; MSA 28.1273 provides alternate authority for such an appointment and this argument is not addressed by my brothers.

MCL 776.18; MSA 28.1273 has two clauses, the applicability of which to the case at bar will be considered separately.

The first clause provides as follows:

"The prosecuting attorney may, under the direction of the court, procure such assistance in the trial of any person charged with a felony as he may deem necessary for the trial thereof * * * .”

In what seems to be dictum, the Supreme Court in Sayles v Circuit Judge of Genesee County, supra, intimated that, under its prior decision in Beecher v Anderson, 45 Mich 543, 547-548; 8 NW 539 (1881), this statute did not sanction a circuit court appointment of a private attorney to prosecute a case which the duly elected officer would not prosecute, even where the elected prosecutor requested appointment of a replacement.

Moreover, the clause refers only to appointments to assist in trials of felonies. The appointment in this case reached investigative and other pretrial work on charges including misdemeanors.

Finally, the prosecution’s brief makes no argument that this clause legitimated the appointment here, and argues only that the clause’s limitation to felony cases did not apply to the second clause. That clause reads, in relevant part, as follows:

"* * * the prosecuting attorney may, under the direction of the court, in case of disability of the prosecuting attorney, appoint an assistant to perform his duties during the disability of the prosecuting attorney.”

The question here then is whether the prosecutor’s close relationship with the sheriff’s department (in which defendant was a deputy), or the prosecutor’s role as defense counsel in a suit against the sheriff’s department (in which suit defendant was a witness for the plaintiff), constituted a "disability” within the meaning of the above clause. I am persuaded they do not. I do not believe that the prosecutor should be allowed to abdicate his duties merely because the defendant is a member of a law enforcement agency with which the prosecutor frequently works. It should be the prosecutor’s duty to proceed against all who break the law, including police officers. It might merit a different view if the prosecutor alleged that this was a personal friend of his and that his feelings toward this person would prevent a vigorous prosecution. However, I do not believe that the suspect’s identity as a police officer presents, by itself, a sufficient conflict of interest to constitute a "disability” to prosecute. I see no legitimate prosecutorial interest in not prosecuting police officers who break the law.

Nor is there any conflict of interest in prosecuting a person who happens to be a witness against the prosecutor’s client. As the lower court judge very aptly observed in his opinion "any criminal action commenced against the [deputy] might smack of political overtones”. However, the conflict between the prosecutor’s duty and the adverse political repercussions he might suifer for doing it should not be elevated by this Court to the level of a legitimate disability.

I would thus conclude that, in the present case, the circuit court was not authorized to make the appointment.

It must next be resolved whether the prosecutor’s warrants were properly quashed, given that his appointment was error. My brothers conclude that the warrants here were validated by the de facto doctrine. I cannot agree. A de facto officer is one whose official status is at least colorable or has been assumed or conceded such that his putatively official acts, once acquiesced in, cannot later be challenged as without the power of office. People v Matthews, 289 Mich 440, 447-448; 286 NW 675 (1939). Here, the appointed prosecutor’s power was attacked at a pretrial conference preceding the preliminary examination and then successfully challenged by motion in the circuit court.

The case of People v Townsend, 214 Mich 267, 270-271; 183 NW 177 (1921), cited by both the prosecution and defendant, contains language indicating that a defendant in a criminal proceeding cannot prevail by attacking the authority of one in public office (because, said the Court, as to the public interests, there is no difference between the acts of de facto and de jure officers). However, People v Townsend, supra, at 270, also stated that this rule was to be followed "[u]pon the high ground of public policy and to prevent a failure of public justice”. Hence the rule is, in a sense, a rule of necessity. Invoking such a rule is not justified where, as here, recommencing the proceedings with a de jure prosecutor will adequately serve the needs of public justice.

For the foregoing reasons, I would affirm the decision of the trial court.