Makowski v. Governor

• Decision Date: 27 December 2012
• Docket Number: Docket No. 307402.
• Citation: 829 N.W.2d 291,299 Mich.App. 166
• Parties: MAKOWSKI v. GOVERNOR.
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 166

829 N.W.2d 291

MAKOWSKI

v.GOVERNOR.

Docket No. 307402.

Court of Appeals of Michigan.

Submitted Dec. 4, 2012, at Lansing.

Decided Dec. 27, 2012, at 9:10 a.m.

Paul D. Reingold and Charles L. Levin, Detroit, for Matthew Makowski.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and A. Peter Govorchin, Assistant Attorney General, for the Governor and the Secretary of State.

Before: O'CONNELL, P.J., and CAVANAGH and DONOFRIO, JJ.

CAVANAGH, J.

Plaintiff appeals by right the summary dismissal of his request for declaratory judgment and injunctive relief on his claim that former Governor Jennifer Granholm ¹ exceeded her constitutional authority when she revoked or rescinded her purported commutation of his nonparolable life sentence. We affirm.

On February 2, 1989, plaintiff was sentenced by the Wayne Circuit Court to mandatory life in prison withoutthe possibility of parole after being convicted of first-degree murder and armed robbery. In January 2010, plaintiff filed an application for commutation of his sentence, requesting that his sentence be commuted to parolable life. In May 2010, the application was reviewed by the parole board and resulted in a “no merit” recommendation to the Governor. The Governor then referred the matter to the Executive Clemency Advisory Council for further review and recommendation. Apparently after a favorable recommendation, the parole board again reviewed plaintiff's application and recommended that the matter continue to public hearing. Following the scheduled hearing, the parole board recommended to the Governor that plaintiff's application for commutation be granted and that his sentence be commuted to a parolable life sentence.

Subsequently, the Governor signed a commutation certificate. On December 22, 2010, the commutation certificate was delivered to the Office of the Great Seal where the Great Seal was affixed, and the document signed by the Secretary of State. It was then forwarded to the Michigan Department of Corrections (MDOC), but not processed. Thereafter, the victim's family contacted the Governor's office with objections. It appears that several e-mails were then transmitted between the Governor's office, a parole board member, and the MDOC regarding the purported commutation. Referenced in the e-mails were the facts that the commutation certificate was not processed by the MDOC and would be returned to the Governor's office.

On December 27, 2010, the former Governor issued a written directive to the Parole and Commutation Board to “halt all commutation proceedings,” “prohibit [t]he release of [plaintiff],” and “rescind any and all certificates relating to the commutation.” The directive furtherprovided that “it is my intention, as previously communicated, to revoke the commutation of [plaintiff's] sentence before fully effectuated.” On December 29, 2010, the signed and sealed commutation certificate was retrieved from the Secretary of State's office by the Governor's office and it was subsequently destroyed. ²

On May 19, 2011, plaintiff filed this lawsuit seeking a declaratory judgment and injunctive relief, alleging that the former Governor had officially commuted his sentence, that she lacked the power to revoke the commutation, and that the manner of revocation violated his due process rights. After the completion of discovery, defendants moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that plaintiff's claim was unenforceable as a matter of law because the former Governor's actions were consistent with her constitutional powers and the commutation never became effective. Plaintiff responded to the motion, arguing that the signed and sealed commutation certificate was final and irrevocable. Further, plaintiff argued, once his request for commutation was granted, he acquired a liberty interest and was entitled to due process.

On November 15, 2011, the trial court issued a written opinion and order holding “that [the trial court] has no authority, i.e. no jurisdiction, to examine and/or approve the exercise by the governor of her constitutional authority to commute a prison sentence.” That is, “because the federal and Michigan constitutions grant to the executive branch the authority to grant sentencing pardons, reprieves, and commutations, that [sic] the courts have no jurisdiction or authority to question the manner in which reprieves or commutations are granted or, for that matter, rescinded or revoked.” Accordingly, the trial court concluded that plaintiff failed to state a cause of action and that dismissal was proper under both MCR 2.116(C)(4) and (C)(8). This appeal followed. Plaintiff challenges the trial court's holding that it lacked jurisdiction to decide the matter and further argues that the former Governor commuted his sentence through a final and irrevocable official act.

I. STANDARD OF REVIEW

We review de novo a trial court's decision on a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law. Auto Club Group Ins. Co. v. Burchell, 249 Mich.App. 468, 479, 642 N.W.2d 406 (2001). Questions of law in declaratory judgment actions are also reviewed de novo, Green Oak Twp. v. Munzel, 255 Mich.App. 235, 238, 661 N.W.2d 243 (2003), as are jurisdictional questions, Travelers Ins. Co. v. Detroit Edison Co., 465 Mich. 185, 205, 631 N.W.2d 733 (2001), and constitutional issues, including whether the separation of powers doctrine applies. Harbor Tel. 2103, LLC v. Oakland Co. Bd. of Comm'rs, 253 Mich.App. 40, 50, 654 N.W.2d 633 (2002).

II. JUSTICIABILITY

The first issue we must consider is whether the trial court properly concluded that it lacked jurisdiction to consider this matter. It appears the trial court concluded that plaintiff's claim challenging the former Governor's commutation power was nonjusticiable because it involved a political question implicating the separation of powers doctrine. We agree.

The separation of powers doctrine is explicitly established in Michigan's Constitution, Const. 1963, art. 3, § 2, which 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 three branches of our government are separate and coequal, a design that preserves the independence of the three branches of government. Straus v. Governor, 459 Mich. 526, 536, 592 N.W.2d 53 (1999). In Kyser v. Kasson Twp., 486 Mich. 514, 535, 786 N.W.2d 543 (2010), our Supreme Court explained:

The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct or restrain the action of the other. [Id., quoting Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923).]

That is, “[b]y separating the powers of government, the framers of the Michigan Constitution sought to disperse governmental power and thereby to limit its exercise.” Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 613, 684 N.W.2d 800 (2004), overruled on other grounds by Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed., 487 Mich. 349, 352, 792 N.W.2d 686 (2010).

In Michigan, the executive power is vested in the Governor. Const. 1963, art. 5, § 1. At issue in this case is the Governor's commutation power. A decision to commute a prisoner's sentence is within the scope of the Governor's authority as set forth in Michigan's Constitution. Const. 1963, art. 5, § 14 provides:

The governor shall have power to grant reprieves, commutations and pardons after convictions for all offenses, except cases of impeachment, upon such conditions and limitations as he may direct, subject to procedures and regulations prescribed by law. He shall inform the legislature annually of each reprieve, commutation and pardon granted, stating reasons therefor.

As the trial court noted in this case, a challenge to the Governor's commutation power naturally merits consideration of justiciability limitations. “Courts are bound to take notice of the limits of their authority, and a court may, and should, on its own motion ... recognize its lack of jurisdiction and act accordingly....” In re Fraser's Estate, 288 Mich. 392, 394, 285 N.W. 1 (1939). “Judicial power” cannot be used to usurp the power of a coordinate branch of government or to inappropriately interfere with its business. Const. 1963, art. 3, § 2; United States v. Munoz–Flores, 495 U.S. 385, 394, 110 S.Ct. 1964, 109 L.Ed.2d 384 (1990). Accordingly, “[t]he nonjusticiability of a political question is primarily a function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). As the United States Supreme Court held in Baker, “[i]n determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” Id. (quotation marks and citation omitted; alteration in Baker ).

In Michigan, whether a case is nonjusticiable because it involves a political question is determined through a three-part inquiry:

(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the questiondemand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations [for maintaining respect between the...