In re Hawley
| Decision Date | 23 February 2000 |
| Docket Number | Docket No. 215699. |
| Citation | 606 N.W.2d 50,238 Mich. App. 509 |
| Parties | In the Matter of Thad Jason HAWLEY, Minor. People of the State of Michigan, Petitioner-Appellant, v. Thad Jason Hawley, Respondent-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John G. McBain, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the petitioner.
Thomas D. Wilson & Associates, P.C. (by Ivan D. Brown), Jackson, for respondent.
Before: MURPHY, P.J., and GAGE and WILDER, JJ.
Petitioner appeals from an order of the circuit court dismissing a charge of first-degree criminal sexual conduct against respondent. We reverse.
Respondent Thad Jason Hawley, a fifteen-year-old minor, was charged with first-degree criminal sexual conduct (sexual penetration of a person under thirteen years of age). MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). He allegedly engaged in "consensual" sexual intercourse with a twelve-year-old minor female. The minor female was not charged in connection with the act, and respondent moved to dismiss his charge, contending that these circumstances evidenced selective prosecution. Respondent argued that petitioner's decision to prosecute only him was a genderbased violation of the Equal Protection Clause. After conducting a hearing regarding respondent's motion, the circuit court dismissed the firstdegree criminal sexual conduct charge. The court found that both respondent and the minor female were similarly situated in that neither could consent to sexual penetration. Consequently, the court held that the decision not to charge the minor female with third-degree criminal sexual conduct, for the same act for which respondent was charged with first-degree criminal sexual conduct, constituted a violation of the equal protection doctrine. The court additionally held that petitioner's decision to charge only respondent was impermissibly based on gender.
Constitutional issues are questions of law that this Court reviews de novo. Mahaffey v. Attorney General, 222 Mich.App. 325, 334, 564 N.W.2d 104 (1997). Equal protection of the law is guaranteed by both the federal and Michigan constitutions. U.S. Const., Am. XIV; Const. 1963, art. 1, § 2; Frame v. Nehls, 452 Mich. 171, 183, 550 N.W.2d 739 (1996). Both guarantees afford similar protection. Doe v. Dep't of Social Services, 439 Mich. 650, 670-671, 487 N.W.2d 166 (1992). The equal protection guarantee requires that persons under similar circumstances be treated alike; it does not require that persons under different circumstances be treated the same. El Souri v. Dep't of Social Services, 429 Mich. 203, 207, 414 N.W.2d 679 (1987); Yaldo v. North Pointe Ins. Co., 217 Mich.App. 617, 623, 552 N.W.2d 657 (1996).
Petitioner charged respondent with first-degree criminal sexual conduct under M.C.L. § 750.520b(1)(a); MSA 28.788(2)(1)(a), which provides:
Although petitioner could not have charged the minor female with first-degree criminal sexual conduct because the respondent was older than thirteen years of age, it could have charged her with third-degree criminal sexual conduct under M.C.L. § 750.520d(1)(a); MSA 28.788(4)(1)(a), which provides:
Petitioner contends that its decision to charge a fifteen-year-old and not a twelve-year-old, when both were involved in the same act of sexual intercourse, was sound and permissible because it was strictly based on the ages and vulnerability of the individuals involved.
The prosecutor is a constitutional officer with discretion to decide whether to initiate charges and what charges to bring. People v. Venticinque, 459 Mich. 90, 100, 586 N.W.2d 732 (1998); People v. Herrick, 216 Mich.App. 594, 598, 550 N.W.2d 541 (1996). The principle of separation of powers restricts judicial interference with the prosecutor's exercise of this executive discretion. Id. This discretion over what charges to file will not be disturbed absent a showing of clear and intentional discrimination based on an unjustifiable standard such as race, religion, or some other arbitrary classification. People v. Oxendine, 201 Mich.App. 372, 377, 506 N.W.2d 885 (1993). In this case, respondent alleges that petitioner's decision to prosecute only him was unjustifiably based on gender, in violation of the Equal Protection Clause. Michigan has adopted a two-pronged test to determine whether a particular prosecution violates the Equal Protection Clause:
First, it must be shown that the defendants were "singled" out for prosecution while others similarly situated were not prosecuted for the same conduct. Second, it must be established that this discriminatory selection in prosecution was based on an impermissible ground such as race, sex, religion or the exercise of a fundamental right. [People...
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...remain silent, thereby violating his right to due process. We disagree. We review constitutional questions de novo. In re Hawley, 238 Mich.App. 509, 511, 606 N.W.2d 50 (1999). It is well settled that a prosecutor may not use a defendant's post-Miranda silence as evidence of guilt or to cast......
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...circumstances be treated alike, but do not demand consistent treatment of persons under different circumstances. In re Hawley, 238 Mich.App. 509, 511, 606 N.W.2d 50 (1999). Courts apply one of three tests when reviewing a party's challenge of a legislative classification as violative of equ......
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...first-degree CSC if he engages in sexual penetration with a person under the age of 13 years. MCL 750.520b(1)(a); In re Hawley, 238 Mich.App. 509, 511, 606 N.W.2d 50 (1999). MCL 750.520a(r) defines "sexual penetration" as sexual intercourse, cunnilingus, fellatio, anal intercourse, or any o......