Attorney General, In re

• Decision Date: 15 December 1983
• Docket Number: Docket No. 67560
• Citation: 341 N.W.2d 253,129 Mich.App. 128
• Parties: In re ATTORNEY GENERAL. The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James JACKSON, D.O. and James Jackson, D.O., P.C., a Michigan professional corporation, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 253

341 N.W.2d 253

129 Mich.App. 128

In re ATTORNEY GENERAL The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James JACKSON, D.O. and James Jackson, D.O., P.C., a Michigan professional corporation, Defendants-Appellants.

Docket No. 67560.

Court of Appeals of Michigan.

Submitted July 20, 1983.

Decided Sept. 27, 1983.

Released for Publication Dec. 15, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Edwin M. Bladen, Gary L. Finkbeiner and William E. Molner, Asst. Atty. Gen., for the Atty. Gen.

O'Toole, Stevens, Johnson, Knowlton, Potter & Rolf by Thomas J. O'Toole, Muskegon, for James Jackson, D.O., and James Jackson, D.O., P.C.

Before BEASLEY, P.J., and ALLEN and DENEWETH, ^* JJ.

ALLEN, Judge.

James Jackson, D.O. and James Jackson D.O., P.C. (hereinafter defendants) appeal as of right from an order of superintending control, entered by the Ingham Circuit Court on October 12, 1982, dissolving the district court's order of August 6, 1982, changing venue from Ingham County to Muskegon County. We affirm the circuit court order.

On May 3, 1982, a criminal complaint was issued in Ingham County against defendants charging them with 55 counts of filing false Medicaid claims, contrary to M.C.L. Sec. 400.607; M.S.A. Sec. 16.614(7). On June 10, 1982, subsequent to the arraignment in district court, defendants moved for change of venue to Muskegon County, alleging that (1) all of the Medicaid recipients as to whom they were alleged to have filed false claims and all of the witnesses whom defendants would call in their defense resided in Muskegon County, (2) all of the alleged criminal acts took place in Muskegon County, (3) defendants' offices and practice were in Muskegon County, and (4) should defendants be required to defend the action in Ingham county, their patients would be deprived of medical care during the individual defendant's absence and defendants would suffer economic hardship. Defendants' motion for change of venue from the district court in Ingham County to the district court in Muskegon County was granted by District Court 54A in an order dated August 6, 1982.

The Attorney General subsequently filed in Ingham Circuit Court a complaint for superintending control or, in the alternative, a motion for leave to appeal, requesting that the district court's order changing venue be vacated. The circuit court granted the requested relief in an order of superintending control entered October 12, 1982.

The first issue we must address is whether a district court may issue an order changing venue in a felony case.

M.C.L. Sec. 762.7; M.S.A. Sec. 28.850 provides in part:

"Each court of record having jurisdiction of criminal cases upon good cause shown by either party may change the venue in any cause pending therein, and direct the issue to be tried in the circuit court of another county, and make all necessary rules and orders for the certifying and removing such cause, and all matters relating thereto, to the court in which such cause shall be so removed shall proceed to hear, try and determine the same, and execution may thereupon be had in the same manner as if the same had been prosecuted in the court having original jurisdiction of such cause * * *."

While district courts are courts of record, M.C.L. Sec. 600.8101; M.S.A. Sec. 27A.8101, we believe that the statute applies only to circuit courts in felony cases. The statute speaks of changing venue in a "cause pending" and of "direct[ing] the issue to be tried in the circuit court of another county". The terms "trial", "circuit courts" and "issue to be tried" are used throughout the statute.

In Bresnahan v. Cass Circuit Judge, 154 Mich. 491, 492, 117 N.W. 1053 (1908), the Michigan Supreme Court concluded that, based upon similar language of a predecessor statute, an order changing venue before the cause was at issue, i.e., before the preliminary examination, was premature, stating:

"This statute plainly imports that what is to be transferred from one county to another is a case at issue, as it refers to the court to which the case is transferred as the court in which such issue shall be ordered to be tried, and the duty of that court to which the cause is transferred is defined, namely, to proceed to hear, try, and determine the same. There is abundant reason for this. The ground of the application for a change of venue of the present case is the claim that it would be impossible to secure a jury. Unless an issue of fact is made, no jury will be called upon to act in the case. Hence no necessity for a change of venue."

We note that other jurisdictions have reached the same conclusion concerning their criminal venue provisions. See Hudley v. State, 36 Ark. 237, 240 (1880); Ex Parte Livingston, 116 Fla. 640, 156 So. 612 (1939); State v. Burns, 79 R.I. 130, 84 A.2d 801 (1951); 22 C.J.S., Criminal Law, Sec. 202, p. 533.

The district court was without authority to grant a motion for change of venue before the preliminary examination was held in this case. The circuit court's order of superintending control was proper based upon the lower court's having exceeded its powers. East Jordan Iron Works v. Worker's Compensation Appeal Board, 124 Mich.App. 324, 335 N.W.2d 23 (1983).

While we affirm the circuit court, we find it necessary to address the power of the circuit court to change venue due to the convenience of the parties, since this issue is likely to arise if defendants are bound over to circuit court for trial.

Venue in this case would be proper either in Muskegon County or Ingham County, see M.C.L. Sec. 400.611; M.S.A. Sec. 16.614(11) and M.C.L. Sec. 762.8; M.S.A. Sec. 28.851. The prosecution's discretion in choosing which county to bring the action, however, is not inviolate. Venue may be changed by the circuit court for "good cause shown" by either party under M.C.L. Sec. 762.7; M.S.A. Sec. 28.850.

No definition of "good cause" is contained in the statute. It appears from case law that generally the focus is on whether the defendant, or the people where the motion is brought by the prosecution, can secure a fair and impartial trial in the jurisdiction where the action is brought. See generally, 8 Michigan Law and Practice, Criminal Law, Sec. 36, p. 113; 1 Gillespie, Michigan Criminal Law and Procedure (2d ed), Secs. 74-80, pp. 140-146.

We could locate no Michigan authority which specifically addresses whether "good cause" may include the convenience of the parties or the witnesses. Mention was made in the case of People v. Rich, 237 Mich. 481, 486, 212 N.W. 105 (1927), that the prosecution's allegation that a fair and impartial trial could not be obtained in the county where the action was brought without great expenses to the taxpayers was insufficient, standing alone, to justify a change of venue. We note that GCR 1963, 403, which states that venue may be changed for the convenience of the parties or witnesses, applies only to civil cases.

We give no weight to the dicta in People v. Lee, 334 Mich. 217, 54 N.W.2d 305 (1952), relied upon by defendants. ¹ In that case, the Court indicated some willingness to entertain a claim following trial that the venue had deprived the defendants of due process rights, including the rights to compel the attendance of witnesses and to confront witnesses. Here, defendants make no claims that venue in Ingham County will deprive them of these constitutional rights; rather the allegations contained in defendants' motion for change of venue concern the convenience of defendants and their witnesses.

In People v. Peterson, 93 Mich. 27, 30, 52 N.W. 1039 (1892), the Michigan Supreme Court held that a predecessor statute, How Stat 6468,...