Makowski v. Governor
| Decision Date | 17 September 2014 |
| Docket Number | Docket No. 146867.,Calendar No. 4. |
| Citation | 495 Mich. 465,852 N.W.2d 61 |
| Parties | MAKOWSKI v. GOVERNOR. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Paul D. Reingold and Charles L. Levin, Detroit, for plaintiff.
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, and A. Peter Govorchin, Assistant Attorney General, for defendants.
This case requires us to consider the extent to which the Governor's exercise of the pardon powers conferred by Const. 1963, art. 5, § 14 is justiciable; whether our review of the pardon powers offends the separation-of-powers doctrine; whether the commutation of plaintiff's sentence was complete; and whether Const. 1963, art. 5, § 14 grants the Governor the power to revoke a commutation. We hold that the extent of the Governor's pardon powers is a justiciable question and our review does not violate the separation-of-powers doctrine. We also hold that the Michigan Constitution does not grant the Governor the power to revoke a valid commutation, and that plaintiff's commutation was valid and irrevocable when it was signed by the Governor and the Secretary of State and affixed with the Great Seal. Accordingly, we reverse the judgment of the Court of Appeals, order the Department of Corrections to reinstate plaintiff's sentence to a parolable life sentence, and remand plaintiff to the jurisdiction of the parole board.
In 1988, plaintiff was a manager at a Dearborn health club. Plaintiff gave cash to one of his employees to act as a courier and sent the courier to a bank to obtain a money order. Plaintiff then conspired with a second employee and that employee's roommate to have the roommate rob the courier en route to the bank. During the attempted robbery, the courier fought back and the roommate stabbed the courier, resulting in the courier's death. Plaintiff was charged with and convicted of first-degree felony murder and armed robbery and sentenced to life in prison without the possibility of parole.
Plaintiff was a model prisoner, receiving only two minor misconduct tickets while in prison. In January 2010, plaintiff filed an application for commutation. Plaintiff's application was considered by the parole board, which recommended that the case proceed to a public hearing. The parole board sent notice of the hearing to the Wayne County Prosecutor and to the successor Wayne County Circuit Judge. Notice was not sent to the victim's family because the family members failed to register as victims as required for notice under the Crime Victim's Rights Act. See MCL 780.769. A hearing was scheduled for October 21, 2010, and the Michigan Department of Corrections posted public notice of the hearing on its website in early October. At the hearing, neither the prosecutor nor the victim's family appeared or opposed commutation. Following the hearing, the parole board sent the commutation application to then Governor Jennifer Granholm with a favorable recommendation.
On December 22, 2010, the Governor signed the commutation. The Governor's office sent the signed commutation to the Secretary of State, who affixed the Great Seal and autopenned the Secretary of State's signature to the commutation. At 1:52 p.m., the Governor's deputy legal counsel sent an e-mail to several state officials announcing that “[t]he Governor has approved the commutation request of [plaintiff].” Early December 23, 2010, the Governor's legal counsel received a call from a lawyer representing the victim's family, who expressed the family's opposition to the commutation and the family's unhappiness with the lack of notice.
On December 27, 2010, the Governor's deputy legal counsel delivered a letter from the Governor to the parole board chair officially directing the chair to halt all commutation proceedings and indicating that the Governor intended to revoke the commutation. The Governor's deputy legal counsel obtained and destroyed all copies of the certificate of commutation. On December 31, 2010, Governor Granholm left office and on January 1, 2011, newly elected Governor Rick Snyder assumed office. On March 25, 2011, the parole board reconsidered plaintiff's commutation, voted against recommending plaintiff for commutation, and notified the newly elected Governor of its negative recommendation. On April 15, 2011, the Governor denied plaintiff's commutation.
Plaintiff brought suit on May 19, 2011, alleging that the commutation of his sentence was final on December 22, 2010, when it was signed, sealed, and delivered to the Department of Corrections. Plaintiff also alleged that the Governor lacked authority to revoke a completed commutation and that the revocation increased plaintiff's sentence in violation of the Double Jeopardy Clauses and plaintiff's due process rights. The parties filed cross-motions for summary disposition, and on November 15, 2011, the trial court granted the state's motion for summary disposition, ruling that the court lacked jurisdiction to consider the issue. Plaintiff appealed, and the Court of Appeals affirmed. Makowski v. Governor, 299 Mich.App. 166, 168, 829 N.W.2d 291 (2012). We granted leave to appeal.
Questions of constitutional and statutory interpretation are reviewed de novo. Midland Cogeneration Venture Ltd. Partnership v. Naftaly, 489 Mich. 83, 89, 803 N.W.2d 674 (2011).
We must first consider whether this case presents a nonjusticiable political question. The concept of a nonjusticiable political question was introduced in the seminal United States Supreme Court case Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). When considering whether the United States Supreme Court had the power to review the questions posed in Marbury, the Court explained that “[b]y the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion” and “[i]n such cases, ... whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.” Id. at 165–166. Accordingly, courts may not inquire into how the executive or his officers perform their duties in which they have discretion. Id. at 170. The Court held that questions that by their nature are political or that are submitted only to the executive by the Constitution cannot be reviewed by courts. Id. However, “it is, emphatically, the province and duty of the judicial department, to say what the law is.” Id. at 177. The Court held that whether the executive act of granting a commission vested a legal right in the appointee was a legal question, properly determinable by the courts. Id. at 171.1
In House Speaker v. Governor, 443 Mich. 560, 506 N.W.2d 190 (1993), we addressed the political-question doctrine and considered whether under Const. 1963, art. 5, § 2 the Governor had the power to transfer all powers and duties from a legislatively created department of the executive branch responsible for environmental protection to a gubernatorially created department that had the same purpose. House Speaker, 443 Mich. at 564, 506 N.W.2d 190. One of the arguments in House Speaker, as in this case, was that the Governor's exercise of power was not properly reviewable by this Court. Id. We applied a three-part test to determine whether the question presented was a nonjusticiable political question:
[1] [d]oes the issue involve resolution of questions committed by the text of the Constitution to a coördinate branch of Government? [2] Would resolution of the question demand that a court move beyond areas of judicial expertise? [3] Do prudential considerations for maintaining respect between the three branches counsel against judicial intervention? [Id. at 574, 506 N.W.2d 190, citing Goldwater v. Carter, 444 U.S. 996, 998, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (brackets and quotation marks omitted).]
First, we consider whether the issue involves the resolution of questions that the text of the Constitution commits to a coordinate branch of government. Id. In addressing this question, the United States Supreme Court has stated that “the courts must, in the first instance, interpret the text in question and determine whether and to what extent the issue is textually committed.” Nixon v. United States, 506 U.S. 224, 228, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993). Therefore, we must begin by interpreting the text of the constitutional provision in question.
“In interpreting the constitution, this Court has developed two rules of construction.” Soap & Detergent Ass'n v. Natural Resources Comm., 415 Mich. 728, 745, 330 N.W.2d 346 (1982). First, the interpretation should be “the sense most obvious to the common understanding; the one which reasonable minds, the great mass of people themselves, would give it.” Id. (citations and quotation marks omitted). Second, in previous cases we have considered “the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished[.]” Id. (citations and quotation marks omitted). The Constitution provides that the Governor may grant commutations “subject to procedures and regulations prescribed by law.” Const. 1963, art. 5, § 14 (emphasis added).2 Thus, the sense most obvious to the common understanding of article 5, § 14 is that it clearly places a limit on the Governor's pardon power by allowing the Legislature to enact laws that determine the necessary procedures and regulations surrounding commutations. Therefore, while the Michigan Constitution provides the Governor the power to grant commutations, the Governor is not given sole control of the pardon power.
Next, we consider “the circumstances surrounding the adoption of the constitutional provision and the purpose sought to be accomplished [...
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