People v. Blachura

• Decision Date: 20 November 1973
• Docket Number: No. 6,6
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon BLACHURA, Defendant-Appellant. 390 Mich. 326, 212 N.W.2d 182
• Court: Michigan Supreme Court

Page 182

212 N.W.2d 182

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leon BLACHURA, Defendant-Appellant.

No. 6.

390 Mich. 326, 212 N.W.2d 182

Supreme Court of Michigan.

Nov. 20, 1973.

Thomas G. Plunkett, Pros. Atty., Oakland County, by William G. Wolfram, Asst. Pros. Atty., for plaintiff-appellee.

Norman L. Zemke and Richard M. Lustig Zemke & Lustig, P.C., Southfield, for defendant-appellant.

Before the Entire Bench.

COLEMAN, Justice.

Plaintiff was called before an Oakland County grand jury. As a result of his testimony he was indicted on six counts of perjury. The jury trial ended with defendant being convicted on five counts.

In his motion for a new trial, defendant said that he had been denied the right to have counsel present during his examination before the grand jury. The circuit judge agreed finding such denial to be a violation of constitutional and statutory rights. A new trial was ordered as to two counts and the remaining three were dismissed with prejudice.

The prosecutor sought and was granted emergency leave to appeal by the Court of Appeals. Defendant was granted leave to appeal this decision of the Court of Appeals. In his own words, defendant 'is appealing only the narrow issue of whether or not the Court of Appeals has jurisdiction' in this matter.

The resolution of the issue in this case requires an interpretation and meshing of various constitutional and statutory provisions in conjunction with the 1963 General Court Rules.

The matter is a case of first impression as to this Court.

Constitution

As all else herein flows from an interpretation of two sections of the 1963 Const., we begin with that aspect of the problem.

Art. 6, § 4 provides in full:

'The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court. The supreme court shall not have the power to remove a judge.' ¹

The full text of art. 6, § 10 is:

'The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.'

Of primary importance are two basic rules of constitutional construction.

1. Every statement in a state constitution must be interpreted in the light of the whole document.

2. Because fundamental constitutional principles are of equal dignity, none must be so construed as to nullify or substantially impair another.

If art. 6, § 4 and § 10 are not to be in conflict, § 4 must apply to the appellate jurisdiction of the Supreme Court, concerning which it may promulgate rules. § 10 plainly applies to the Court of Appeals and just as plainly states that jurisdiction therein shall be provided by law.

We, therefore, look to the statutes to determine appellate jurisdiction in this matter. Statutes

Two statutes are argued as being in conflict.

A statute last amended in 1942 is quoted often in argument. M.C.L.A. § 770.12, M.S.A. § 28.1109 provides in part:

'A writ of error may be taken by and on behalf of the people of the state of Michigan from any court of record in said state direct to the supreme court thereof, in all criminal cases in the following instances, to wit:

'(a) From a decision or judgment quashing or setting aside any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which such indictment or information is founded.'

This statute was passed and last amended long before the 1963 Const. became effective bringing with it a new court, the Court of Appeals.

Defendant argues that this provision explicitly limits the matters which the prosecution may bring for review to the Court of Appeals. He contends that the quashing of the three counts was not 'based upon the invalidity or construction of the statute' but upon constitutional grounds. (Actually, it was on both grounds.) The prosecutor implies that this statute is outdated and superseded by art. 6, § 10 of the 1963 Const. and by the statute set forth in M.C.L.A. § 600.308, M.S.A. § 27A.308 which provides in full:

'The court of appeals has jurisdiction on appeals from:

'(1) All final judgments from the circuit courts, court of claims, and recorder's court, except judgments on ordinance violations in the traffic and ordinance division of recorder's court. Appeals from final judgments from all other courts an from convictions for ordinance violations in the traffic and ordinance division of recorder's court shall be taken to the circuit courts, upon which further review may be had only upon application for leave to appeal granted by the court of appeals.

'(2) Such other judgments or interlocutory orders as the supreme court may by rule determine.'

(The two statutes set forth above will hereinafter be referred to as 770.12 and 600.308.)

It is pertinent to this analysis to note that 770.12 was last amended in 1942, long before the new constitution established the Court of Appeals and therein directed that its jurisdiction should be established by law.

600.308 was written pursuant to that constitutional direction. GCR 1963, 801, also adopted pursuant to the new constitution, provides § 3 which is headed 'Statutory Jurisdiction of Court of Appeals' and repeats the language of 600.308. It refers to All final judgments.

770.12, on the other hand, predated the 1963 Const. and was addressed to old writs of error coming before the Supreme Court. It cannot logically be said that 770.12 is the answer to the constitutional directive to establish, by law, jurisdiction of the Court of Appeals. This Court finds inapplicable the cases decided by the Court prior to the existence of the Court of Appeals ² and relied upon heavily by defendant. We do not believe this provision, now inapplicable to procedure in this Court, should be judicially rewritten so as to limit jurisdiction in the Court of Appeals.

M.C.L.A. § 600.308 and GCR 1963, 801.3 give the Court of Appeals jurisdiction on appeals from all final judgments of the circuit courts. This obviously does not restrict the right of the people to appeal. GCR 1963, 806.1 says, in part, that in all cases 'an aggrieved party shall have a right to appeal from all final judgments or final orders from the Circuit Courts . . ..' This obviously does not restrict the right of the people to appeal. ³ GCR 1963, 806.2(2) gives the Court of Appeals the discretion to grant leave from any 'judgment, order, act or failure to act by the circuit courts . . . which is not a final judgment appealable as of right.' This obviously does not restrict the right of the people to seek leave to appeal.

We are aware that GCR 1963, 801.1 says that when 'review by the Supreme Court . . . is authorized by law, review shall be had by appeal to the Court of Appeals. . . .' Some argue that this provision renders 770.12 applicable to the lower court. We have expressed our belief that 770.12 constitutionally cannot and does not restrict our jurisdiction. Such review is, therefore, not authorized by law as required by the rule. GCR 1963, 801.1 also 'refers only to the court and method of review and does not restrict, enlarge or change the right or scope of review provided by law, except as explicitly set out in these rules.' The right and scope of review in the Court of Appeals is set down in the constitution and such legislation and court rules as were enacted pursuant to it. We conclude that a statute referring to Supreme Court review and dealing with a now obsolete court structure and using terms of art alien to many modern practitioners should not be viewed as the type of statute envisioned by the drafters of GCR 1963, 801.1. Indeed the contrary must be concluded by the wording of 801.3.

Summary

Art. 6, § 10 provides that the jurisdiction of the Court of Appeals be established by law. Pursuant to this directive the statute set forth in 600.308 was enacted providing in part for Court of Appeals jurisdiction over 'all final judgments.' Thereafter, GCR 1963, 801.3 recognized 600.308 as the statute setting forth the jurisdiction of the Court of Appeals by incorporating the statutory language and designating that section as 'Statutory Jurisdiction of Court of Appeals.'

We conclude that traditional legal reasoning and a common-sense construction of the constitutional provisions, statutes and court rules result in affirming the Court of Appeals' grant of leave to appeal in this case. We remand for a hearing on the merits.

WILLIAMS, BRENNAN and SWAINSON, JJ., concur.

LEVIN, Justice.

The Court of Appeals granted the prosecutor's application for leave to appeal from an order entered on defendant Blachura's motion for a new trial following his conviction by a jury.

The order so appealed provides:

'IT IS HEREBY ORDERED that the defendant be and hereby is granted a new trial herein.

'IT IS FURTHER ORDERED that Counts IV, V, and VI are quashed and dismissed with prejudice (defendant herein having heretofore been acquitted on Count III), and

'IT IS FURTHER ORDERED that the defendant proceed to trial only upon Counts I and II.'

We are of the opinion that so much of the order as grants a new trial on Counts I and II is not appealable to the Court of Appeals, but so much of the order as dismisses Counts IV, V and VI of the indictment is so appealable as an order 'relative to * * * proceedings had or made at any time before the defendant is put in jeopardy.' M.C.L.A. § 770.12; M.S.A. § 28.1109. ¹

We do not agree that M.C.L.A. § 770.12; M.S.A. § 28.1109, providing for prosecutor appeals, has been superseded by M.C.L.A. § 600.308; M.S.A. § 27A.308 and GCR 1963, 801.3, 806.1, 806.2.

I

The Constitution provides that '(t)he jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.' Const.1963, art. 6, § 10.

...