City of Birmingham v. 48th Dist. Court Judge, Docket No. 24548

• Citation: 255 N.W.2d 760,76 Mich.App. 33
• Decision Date: 06 June 1977
• Docket Number: Docket No. 24548
• Parties: CITY OF BIRMINGHAM, a Municipal Corporation, Plaintiff-Appellant, v. 48TH DISTRICT COURT JUDGE, Defendant-Appellee. 76 Mich.App. 33, 255 N.W.2d 760
• Court: Court of Appeal of Michigan (US)

Page 760

255 N.W.2d 760

CITY OF BIRMINGHAM, a Municipal Corporation, Plaintiff-Appellant, v. 48TH DISTRICT COURT JUDGE, Defendant-Appellee.

Docket No. 24548.

76 Mich.App. 33, 255 N.W.2d 760

Court of Appeals of Michigan.

June 6, 1977.

Released for Publication July 21, 1977.

[76 MICHAPP 35] Hartman, Beier, Howlett, McConnell & Googasian by Eric J. McCann, Bloomfield Hills, for plaintiff-appellant.

Leitman & Roeser by Bruce T. Leitman, Bloomfield Hills, for defendant-appellee.

Before DANHOF, C. J., and T. M. BURNS and JOHN E. McDONALD, ^* JJ.

T. M. BURNS, Judge.

The City of Birmingham appeals from the circuit court's denial of an order of superintending control. ¹

On April 25, 1974, a Birmingham parking enforcement officer placed a ticket on an automobile with the license number KRV 390 for being illegally parked. The owner of the vehicle was Iris G. Schlesinger. Ms. Schlesinger failed to pay the parking ticket. On August 23, 1974, the city filed a complaint against Ms. Schlesinger. A city attorney and the parking enforcement officer appeared before District Court Judge Carl Ingraham and requested that an arrest warrant be issued for Ms. Schlesinger's failure to pay the ticket or appear in court.

At a hearing on the motion for issuance of a warrant, the parking enforcement officer testified that she witnessed the violation and ticketed the vehicle. The city attorney introduced a certified [76 MICHAPP 36] copy of the vehicle registration for the ticketed automobile. The city attorney then requested issuance of an arrest warrant pursuant to 1974 P.A. 78, § 1 (M.C.L.A. § 257.675a; M.S.A. § 9.2375(1)), which provides in relevant part as follows:

"(I)n any proceeding relating to arrest and prosecution for the violation of a local ordinance or state statute relating to the standing or parking of a vehicle, proof that the particular vehicle described in the complaint was parked in violation of the ordinance or state statute, together with proof, by verifying ownership of the vehicle with the secretary of state, that the defendant named in the complaint was at the time of the parking the registered owner of the vehicle, shall be accepted by the court as establishing probable cause for the issuance of a warrant for the arrest of the registered owner, and creates in evidence a presumption that the registered owner of the vehicle was the person who parked or placed the vehicle at the point where, and for the time during which, the violation occurred." (Emphasis added.)

The district court judge found that there was no probable cause for issuance of the warrant as there was no rational relationship between the facts presented to it and probable cause to believe that Ms. Schlesinger committed the offense. The judge further found that the portion of 1974 P.A. 78 which requires the court to accept certain proof as establishing probable cause is unconstitutional as contrary to the separation of powers doctrine established by the Michigan Constitution of 1963.

The city sought an order of superintending control in the Oakland County Circuit Court directing the district court judge to issue the arrest warrant. Circuit Court Judge Frederick Ziem refused to issue the order, ruling that 1974 P.A. 78 is unconstitutional because it violates Mich.Const.1963, art. 3, § 2 [76 MICHAPP 37] by limiting powers which are inherent in the judicial branch of government.

Apparently content to rely upon the brief it submitted in the circuit court, the city does not address the issue which we must answer whether the circuit court erred in finding 1974 P.A. 78 unconstitutional. We address the question, nevertheless, because of its significance to the jurisprudence of this state.

Const.1963, art. 3, § 2 provides:

"The powers of government are divided into three branches; legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution."

"The rule is well settled that under our form of government the Constitution confers on the judicial department all the authority necessary to exercise its powers as a co-ordinate branch of the government. It is only in such manner that the independence of the judiciary can be preserved. The courts cannot be hampered or limited in the discharge of their functions by either of the other 2 branches of government." Gray v. Clerk of Common Pleas Court, 366 Mich. 588, 595, 115 N.W.2d 411, 414 (1962).

Issuance of arrest warrants is a basic judicial function, and the determination of whether sufficient probable cause exists in a particular case is one which can be made only by a judicial officer. People v. Colleton, 59 Mich. 573, 26 N.W. 771 (1886). We agree with Judge Ziem's ruling that "the judiciary never has an absolute, clear duty to issue a warrant of any kind, for any person, unless and until satisfied by a detached, independently neutral judgment of all known facts and circumstances, that probable cause exists".

MCLA 257.675a; MSA 9.2375(1) provides that [76 MICHAPP 38] certain facts must be accepted by the court as establishing probable cause for the issuance of an arrest warrant. This completely removes from the judiciary the power to refuse the issuance of an arrest warrant in certain cases. This the Legislature may not do. ² People v. Colleton, supra.

However, we do not agree with the ruling of the circuit court that the entire act is unconstitutional. That portion of MCLA 257.675a; MSA 9.2375(1) requiring the acceptance of certain facts as establishing probable cause is severable from the remainder of the section establishing an evidentiary rebuttable presumption that the registered owner of an illegally parked vehicle was the [76 MICHAPP 39] person who so parked the vehicle. People v. McQuillan, 392 Mich. 511, 542-543, 221 N.W.2d 569 (1974). We find nothing improper in this latter portion of the statute. See People v. Kayne, 286 Mich. 571, 282 N.W. 248 (1938), and Anno.: Inference or presumption that owner of motor vehicle was its driver at time of traffic, driving, or parking offense, 49 A.L.R.2d 456.

While we uphold the inherent power of the magistrate to exercise discretion in the issuance of arrest warrants, it should be noted that such discretion must not be abused. The reasons given for refusal to issue a warrant in this case are questionable. It appears that the district court judge failed to consider the circumstances of the case, such as the relatively innocuous nature of the offense and the consequence of conviction.

We do not consider whether the judge abused his discretion in this case, however, as the plaintiff did not appeal from the district court decision, nor was an abuse of discretion issue raised in the circuit court.

The...