People v. Hubbard, Docket No. 49865

• Decision Date: 11 June 1982
• Docket Number: Docket No. 49865
• Citation: 320 N.W.2d 294,115 Mich.App. 73
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theresa HUBBARD, Dill Prenzler, Steve Grose, Tom Van Hammen, George Keramaris, Jay Hoover, Chuck Will, Harry Moldenhaven, Kathryn Tracy, Patrick Barnett, Pam Peterson, Tim Ransom, John Navin, and Mike Pride, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 294

320 N.W.2d 294

115 Mich.App. 73

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Theresa HUBBARD, Dill Prenzler, Steve Grose, Tom Van Hammen George Keramaris, Jay Hoover, Chuck Will, Harry Moldenhaven Kathryn Tracy, Patrick Barnett, Pam Peterson, Tim Ransom John Navin, and Mike Pride, Defendants-Appellants.

Docket No. 49865.

Court of Appeals of Michigan.

Submitted June 10, 1981.

Decided April 7, 1982.

Released for Publication June 11, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Scott T. Beatty, Pros. Atty., and Frank G. Hoffman, Asst. Pros. Atty., for the People.

James M. Olson and William Rastetter, Traverse City, for defendants-appellants.

Before WALSH, P. J., and MacKENZIE and ERNST ^*, JJ.

PER CURIAM.

Defendants were arrested for criminal trespass on property belonging to the Consumers Power Company, M.C.L. Sec. 750.552; M.S.A. Sec. 28.820(1). At the time of their arrest, defendants were taking part in a demonstration at the site of the Big Rock Point Nuclear Power Plant located in Charlevoix County, Michigan. Defendants declared the purpose for the assembly was to inform the operators of the plant, employees working at the plant, and the citizens of the area and of Michigan of an allegedly imminent danger to health and property incident to the operation of the nuclear power facility. Defendants notified Consumers Power Company, the State Police and the Charlevoix County Sheriff of their intention to demonstrate. They acknowledge their presence on Consumers Power Company property, that company officials requested them to leave, and that they failed to comply.

Before trial, the prosecutor requested the trial court to deny the right to raise the common law defense of necessity and the constitutional defense of the right to free speech and assembly. The motion in limine was granted.

Thereafter, defendants entered pleas of nolo contendere in district court to the trespass charge, with the express stipulation of the Charlevoix County Prosecuting Attorney that defendants would be in the same position for appeal as if they had been convicted by a jury without benefit of either of the defenses previously denied by the preliminary order of the district court. The district court also acknowledged and approved the conditional nature of the pleas.

Upon appeal the Charlevoix County Circuit Court affirmed defendants' convictions. The circuit court held that defendants, by pleading nolo contendere, had waived their right to raise those issues on appeal which they sought to have reviewed, i.e., the defenses denied to them by the district court in its decision to grant the prosecutor's motion in limine. The attorney, the district court and defendants could not vest it with jurisdiction to review a plea conviction which waived the defenses sought to be reviewed.

Defendants, having been granted leave to appeal, are now before this Court.

We find it unnecessary to consider whether either of the issues which defendants seek to raise on appeal would have been waived by an unqualified guilty plea, People v. Alvin Johnson, 396 Mich. 424, 240 N.W.2d 729 (1976), or by an unqualified nolo contendere plea, People v. Riley, 88 Mich.App. 727, 279 N.W.2d 303 (1979). In the absence of a uniform policy either by court rule or by Supreme Court decision, we believe the only viable alternative to enforcing a qualified plea and considering the issues would be to set the plea aside and remand for the taking of an unqualified plea or for trial, at the parties' option. For those same considerations of judicial economy discussed by this Court in People v. Ricky Smith, 85 Mich.App. 32, 270 N.W.2d 697 (1978), we proceed to review those issues which defendants sought to preserve by qualified plea.

We are aware of no Michigan case in which necessity was allowed as a defense to a criminal trespass action. The defense of duress has been recognized in other circumstances. See People v. Merhige, 212 Mich. 601, 180 N.W. 418 (1920). This Court in People v. Hocquard, 64 Mich.App. 331, 337 n.3, 236 N.W.2d 72 (1975), concluded that the courts of this state have impliedly recognized the defense of necessity, stating:

"The difference between the defenses of duress and necessity is that the source of compulsion for duress is the threatened conduct of another human being, while the source of compulsion for necessity is the presence of natural physical forces. * * * Since compulsion includes necessity this is not a recognition of a new defense in Michigan."

We are of the opinion that, in an appropriate factual situation, a defense of necessity may be interposed to a criminal trespass action. However, there must be some evidence from which each element of such defense may be inferred before the defense may be considered by a trier of fact. See People v. Hocquard, supra; People v. Spalding, 17 Mich.App. 73, 169 N.W.2d 163 (1969).

Citing 16 Corpus Juris, Criminal Law, Sec. 59, p. 91, the Court in People v. Merhige, supra, 212 Mich. at pp. 610-611, 180 N.W. 418, reiterated the frequently applied rule:

" 'An act which would otherwise constitute a crime may also be excused on the ground that it was done under compulsion or duress. The compulsion which will excuse a criminal act, however, must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough.' " ¹

Unlike self-defense, for which an "honest, but mistaken" apprehension of impending harm is sufficient, the defense of necessity requires a "well-grounded apprehension" or "reasonable" fear of harm.

We recognize that both the United States and the State of Michigan have enacted legislation and adopted exhaustive regulations governing the construction and operation of nuclear power facilities. The United States Supreme Court has recognized that Congress has made a deliberate choice with regard to nuclear energy:

"Nuclear energy may some day be a cheap, safe source of power or it may not. But Congress has made a choice to at least try nuclear energy, establishing a reasonable review process in which courts are to play only a limited role. The fundamental policy questions appropriately resolved in Congress and in the state legislatures are not subject to reexamination in the federal courts under the guise of judicial review of agency action. Time may prove wrong the decision to develop nuclear energy, but it is Congress or the States within their appropriate agencies which must eventually make that judgment." (Emphasis in original.) Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 557-558, 98 S.Ct. 1197, 1218-19, 55 L.Ed.2d 460 (1978).

The necessity defense is unavailable in an area where there has been exhaustive legislative debate and legislation. The law, by allowing the application of a necessity defense, cannot permit an individual to substitute his own convictions for those of a reasoned and democratic decision-making process. To do so would subvert the very process by which a democracy functions.

In rejecting the applicability of the necessity defense to defendants convicted of trespass growing out of a nuclear protest, the Supreme Court of Vermont has held:

"Determination of the issue of competing values and, therefore, the availability of the defense of necessity is precluded, however, when there has been a deliberate legislative choice as to the values at issue. * * *

"Both the State of Vermont and the federal government have given their imprimatur to the development and normal operation...