People v. Coutu

• Decision Date: 09 March 1999
• Docket Number: Nos. 3-4,110727,Nos. 110652,s. 110652,s. 3-4
• Citation: People v. Coutu, 589 N.W.2d 458, 459 Mich. 348 (Mich. 1999)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James COUTU, Sr., Arthur Kinney, Gerald Reeves and Hollie Spear, Defendants-Appellees. People of the State of Michigan, Plaintiff-Appellant, v. Gerard Leo Carlin, Defendant-Appellee. , and 110728. Calendar
• Court: Michigan Supreme Court

Page 458

589 N.W.2d 458

459 Mich. 348

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James COUTU, Sr., Arthur Kinney, Gerald Reeves and Hollie

Spear, Defendants-Appellees.

People of the State of Michigan, Plaintiff-Appellant, v. Gerard Leo Carlin, Defendant-Appellee.

Nos. 110652, 110727, and 110728.

Calendar Nos. 3-4.

Supreme Court of Michigan.

Argued Nov. 9, 1998.

Decided March 9, 1999.

[459 Mich. 349] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, Daniel L. Lemisch, Chief, Appellate Division, and Kathryn G. Barnes, Assistant Prosecuting Attorney, Pontiac, MI, for People in Coutu.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, Detroit, MI, for People in Carlin.

Arthur Jay Weiss, Farmington Hills, MI, for defendant-appellee Coutu.

Fieger, Fieger & Schwartz, P.C. (by Michael Alan Schwartz ), Southfield, MI, for defendant-appellee Reeves.

Thomas Kizer, Jr., and Darrell L. Cho, Howell, MI for defendant-appellee Carlin.

O P I N I O N

MARILYN J. KELLY, J.

We granted leave in these cases to determine whether deputy sheriffs are "public officials" for purposes of the common-law offense of misconduct in office. We find that deputy sheriffs are public officials for purposes of these charges when the allegations supporting them arise from the performance of their duties.

I. FACTUAL AND PROCEDURAL BACKGROUND PEOPLE v. COUTU

Defendants, deputy sheriffs with the Oakland County Sheriff's Department, were charged with multiple counts ¹ of misconduct in office and conspiracy to commit misconduct in office. The charges were based on allegations that they afforded work-release inmates preferential treatment in exchange for gifts and favors.

Captain Gerald Reeves was responsible for controlling Oakland County Sheriff's Department prisoners placed outside the main jail facility, including those assigned to the work-release facility. Although Reeves was responsible for its overall functioning, Sergeant James Coutu was responsible for the facility's day-to-day operations. Deputies Arthur Kinney and Hollie Spear were comparatively new employees of the facility.

Inmates of the Oakland County work-release facility were permitted to leave the facility for employment for no more than ten hours a day, six days a week. As a condition of the program, inmates paid rent based on a percentage of their income. The facility also housed trustees, who were inmates with responsibilities inside the facility. However, trustees were not required to pay rent or permitted to leave the facility.

Notwithstanding these conditions, defendants allegedly misrecorded work-release hours, allowing inmates to work additional hours, stay out overnight, and travel out-of-state. Defendants also allegedly permitted certain trustees to leave the facility. In some instances, defendants allegedly drafted letters on official letterhead requesting judges to provide favored inmates with early release or work-release status. In exchange, defendants allegedly accepted gifts and favors from inmates. They included money, alcohol, mountain bikes, concert tickets, basketball tickets, cartons of orange juice, extensive home remodeling, automobile repairs, shrink wrapping service, a "no cost" mortgage, and employment for relatives.

At the conclusion of defendants' preliminary examination, the trial court concluded that the prosecution had failed to establish the element of "quid pro quo" linking the inmates' gifts to defendants' favors. After the district court dismissed the charges against defendants, the circuit court affirmed its ruling. The Court of Appeals affirmed on different grounds. It concluded that the defendant deputy sheriffs held no public office, but were mere employees, ² and, as such, were not capable of engaging in the crime of misconduct in office. It declined to address the remainder of the prosecution's arguments associated with its appeal.

PEOPLE v. CARLIN

Defendant, a captain with the Oakland County Sheriff's Department and commander of its Rochester Hills substation, was charged with six counts of misconduct in office. The charges were based on allegations that he misrepresented overtime hours in order to ingratiate himself with Rochester Hills city officials. Although the district court bound over defendant on five counts, the circuit court concluded that defendant was not a public official and dismissed the remaining counts.

In a separate indictment, defendant was charged with fourteen counts of misconduct in office on the basis of allegations that he ordered deputies to chauffeur prominent Oakland County officials to various locations. However, the district court dismissed all fourteen counts, concluding that defendant was not a public official and there was no malfeasance, misfeasance, or corrupt intent.

Affirming, a divided panel of the Court of Appeals concluded that an Oakland County deputy sheriff is a public employee, not a public official. 225 Mich.App. 480, 485, 571 N.W.2d 742 (1997). The majority found the dissent's distinction between a "public officer" and "public official" inapposite because the issue was whether defendant held a public office. Id., at 488, 571 N.W.2d 742. Therefore, the majority concluded that the circuit and district courts did not abuse their discretion by dismissing the misconduct in office charges. Id., at 489, 571 N.W.2d 742. After finding that defendant was not a public official, the Court dismissed as moot the remainder of the prosecution's arguments. Id.

Dissenting, Judge Kelly explained that the district and circuit courts erred by concluding that defendant was not a public officer. Id., at 492, 571 N.W.2d 742. Concluding that the terms "public officer" and "public official" were not interchangeable, he reasoned that deputy sheriffs, "being akin to ordinary foot soldiers, are officers who are public employees but not public 'officials.' " Id., at 493-494, 571 N.W.2d 742. Judge Kelly concluded that Schultz did not extend to defendant because he was a command officer "described by [the] Sheriff ... as the de facto police chief of Rochester Hills." Id., at 494, 571 N.W.2d 742.

II. ANALYSIS

We agree with the Court of Appeals that a determination whether defendant is a public officer is a question of law that is reviewed de novo. Id., at 484, 571 N.W.2d 742. In addition, interpretation and application of statutes is a question of law, also reviewed de novo. People v. Webb, 458 Mich. 265, 274, 580 N.W.2d 884 (1998).

Defendants were charged with the common-law offense of misconduct in office pursuant to the following statutory catch-all provision:

Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony....[ ³] [MCL 750.505; MSA 28.773.]

At common law, misconduct in office constituted "corrupt behavior by an officer in the exercise of the duties of his office or while acting under color of his office." Perkins & Boyce, Criminal Law (3d ed), p 543. A public officer was distinguished from an employee " 'in the greater importance, dignity and independence of his position; in being required to take an official oath, and perhaps to give an official bond.' " People v. Freedland, 308 Mich. 449, 458, 14 N.W.2d 62 (1944) (citation omitted).

To determine whether a position constituted public office, this Court has examined the following five indispensable elements:

"(1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional." [Id., at 457-458, 14 N.W.2d 62 (citation omitted).]

Oath and bond requirements are also of assistance in determining whether a position is a public office. Id., at 458, 14 N.W.2d 62.

Examination of these elements supports the conclusion that a deputy sheriff is a public official for purposes of the common-law offense of misconduct in office. First, the Legislature provided for the creation of deputy sheriffs at M.C.L. § 51.70; MSA 5.863. ⁴ Second, as law enforcement personnel, deputy sheriffs exercise sovereign power while engaged in the discretionary discharge of their duties. Tzatzken v. Detroit, 226 Mich. 603, 608, 198 N.W. 214 (1924). Third, the Legislature defined in part the powers and duties of deputy sheriffs. See M.C.L. § 51.75; MSA 5.868; ⁵ MCL 51.76(2); MSA 5.868(16)(2); MCL 51.221; MSA 5.881.

Regarding the fourth element, we recognize that deputy sheriffs do not perform their duties independently or without the control of a superior power "other than the law." Freedland, supra at 458, 14 N.W.2d 62. However, this element also encompasses inferior or subordinate offices authorized by the Legislature that have been placed under the control of such a superior office. Id. Because the Legislature has authorized the appointment of deputy sheriffs, an inferior or subordinate office to that of sheriff, we conclude that this element is satisfied. MCL 51.70; MSA 5.863. Fifth, deputy sheriffs are generally positions of permanent employment. Finally, deputy...