People v. Joker

• Decision Date: 14 August 1975
• Docket Number: Docket No. 22154
• Citation: 234 N.W.2d 550,63 Mich.App. 421
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lindsay JOKER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 550

234 N.W.2d 550

63 Mich.App. 421

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lindsay JOKER, Defendant-Appellant.

Docket No. 22154.

Court of Appeals of Michigan.

Aug. 14, 1975.

Released for Publication Nov. 5, 1975.

Leave to Appeal Denied Nov. 12, 1975.

Lippitt, Perlove, Varga & Zack by Norman L. Lippitt, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, Appellate Chief Asst. Pros. Atty., Neil H. Fink, Special Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Before T. M. BURNS, P.J., and CAVANAGH and O'HARA, ^* JJ.

O'HARA, Judge.

We accept the statement of facts as set forth in Judge Cavanagh's opinion. We, however, arrive at a different legal conclusion.

The Constitution of 1963, art. 6, § 5 provides in relevant part:

'The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state.'

Amongst the reports of our Supreme Court the cases are cohort if not legion which recognize that this state's highest court has broad powers to promulgate rules to assist in the efficient administration of justice. For example, see Perin v. Peuler, 373 Mich. 531, 130 N.W.2d 4 (1964), and Buscaino v. Rhodes, 385 Mich. 474, 189 N.W.2d 202 (1971). That such rules take precedence over and supercede inconsistent legislation in the area of practice and procedure is hardly open to question. Perin v. Peuler and Buscaino v. Rhodes, supra.

GCR 1963, 927(1) expressly authorizes certain courts to make local rules of practice with respect to matters not covered by nor in conflict with the Michigan General Court Rules.

Section 1 of Rule 9 of the Recorder's Court Rules, enacted pursuant to GCR 927, Supra, provides:

'Sec. 1. Issuance of Warrants. Requests for arrest warrants, and search warrants in cases of alleged felonies and high misdemeanors shall be presented to, and The warrant shall issue in the name of the Examining Magistrate. In his absence such warrants may be issued and signed by any available regular Judge of this Court. Bench warrants and capias writs shall be signed by the Judge who ordered their issuance.' (Emphasis supplied).

In contradistinction to Recorder's Court Rule 9 are various statutes such as M.C.L.A. § 766.2; M.S.A. § 28.920 and M.C.L.A. § 764.1; M.S.A. § 28.860 which authorize All Recorder's Court judges to issue warrants.

What then of this conflict, real or imagined? This necessitates a review of one Supreme Court case and two other cases out of our own Court.

As to the first of these cases, we have no quarrel with the basic proposition as set forth in Krell v. Wayne Circuit Judge, 246 Mich. 412, 224 N.W. 392 (1929), which holds that a local court rule cannot govern the same subject matter as that governed by a statute. Krell is simply inapposite since that case involved a local court rule as to which the Supreme Court had taken no action. Per contra, the Supreme Court has specifically approved Rule 9 of the Recorder's Court Rules. See People v. Mordell, 55 Mich.App. 462, 463, 223 N.W.2d 10 (1974), Lv. den. 393 Mich. 771 (1974).

People v. Williams #2, 45 Mich.App. 630, 207 N.W.2d 180 (1973), presents a closer case to the situation herein. While Williams does state that only the Supreme Court can supercede a legislative enactment pursuant to its broad constitutional prerogatives under the 1963 Constitution, art. 6, § 5, at no place does the Williams opinion directly discuss the extremely sticky situation as to whether or not a local court rule approved by the Supreme Court takes precedence over a conflicting statutory provision concerned solely with matters of practice and procedure.

In the last of these cases, People v. Mordell, supra, the defendant attacked the validity of a search warrant issued by a Recorder's Court judge other than the examining magistrate. This Court did not resolve the alleged conflict between the Supreme Court--approved local rule, the same Recorder's Court Rule 9 involved herein, and the statute, but held that even If Rule 9 did take precedence, failure to follow it did not affect defendant's Fourth Amendment rights. The Court reached this decision by balancing the interests of the defendant against the interests of protecting the public. No claim was made as to the search being unreasonable or improper. In effect the Court applied a harmless error standard and held the trial judge erred in suppressing the evidence and dismissed the case.

Since none of the cited cases are controlling decisionally we feel free to write to the issue as one of apparent first impression in this state.

In the instant case we have a situation where the Supreme Court has approved a local court rule requiring Inter alia all arrest warrants to issue in the name of the examining magistrate, subject to limited exceptions, even though this contravenes specific statutory authority permitting all Recorder's Court judges to issue warrants. Parenthetically, we further hold that should Judge Cavanagh be correct in his view that the involved court rule was never formally approved by the Supreme Court that it in no manner affects the result which we reach. This because the Supreme Court in effect Implicitly placed its stamp of approval on Rule 9 of the Recorder's Court Rules by its silence or failure to affirmatively reject the rule when proposed. Now it is true in the case of GCR 1963, 927 that it merely provides for the method to be followed by the particular court in adopting local rules and specifically states that the Supreme Court shall be notified in writing 10 days in advance of a rule's adoption. ¹ Nowhere, we concede, does it expressly state that this procedure constitutes formal approval, or that the local rule is given the dignity of a rule originally promulgated by the Supreme Court or that such a rule takes precedence over a statute. But the irrefutable fact remains that GCR 927 expressly requires proper notice and additionally states that '(t)he adoption or continuance of any local court rules shall be subject to the superintending control of the Supreme Court'. Read in a common sense manner this implies none too subtlely that the purpose of the notice provision is to permit the state's highest court to make a threshold determination as to whether a proposed court rule or modification thereof should be promulgated at all. Since the local rule's adoption or continuance is expressly made subject to the superintending control of the Supreme Court, it is stretching credulity a bit to say that initial promulgation and continued existence of such a rule does not stand as mute testimony to the fact that the Supreme Court has already given its tacit 'approval' of the involved rule.

Since the Supreme Court has by its action or inaction raised the local rule to the dignity of a rule initially promulgated by the highest court itself and since the subject matter of the court rule relates to both 'practice and procedure', we are constrained to hold that the statutes authorizing all Recorder's Court judges to issue warrants must give way to the extent that they are inconsistent with Rule 9 of the Recorder's Court Rules. See generally, Buscaino v. Rhodes, and Perin v. Peuler, supra.

Because of certain highly unusual circumstances involved in the present case we cannot see applying a 'harmless error' or 'manifest injustice' standard as did the Court in People v. Mordell, supra. The Mordell opinion took the rather sensible view that the issuance of search warrants was a common procedure which could be handled as well by one judge as by another member of the judiciary and that it would unduly frustrate effective law enforcement to require that police delay obtaining warrants which could result in apprehension of narcotics dealers merely to comply with an 'in-house court rule' intended for the convenience of the local judiciary. After balancing the interest of the defendant in a strict, literal compliance with the local court rule as against the interest of the public in ridding the streets of drug traffickers, Mordell concluded that the policy underlying the exclusionary rule did not dictate suppressing evidence obtained by a search and seizure which was unchallenged as to reasonableness.

The instant case is distinguishable from Mordell. Here we are dealing with a truly extraordinary statutory procedure, M.C.L.A. § 764.1; M.S.A. § 28.860, providing for the issuance of an arrest warrant by a judge upon complaint of a private citizen who is prepared to file security for costs. That such is not the usual manner of obtaining an arrest warrant need not be gainsaid. We see no reason why judicial notice may not be taken of the fact that the prosecutor is the public official entrusted under applicable statutory and case authority with the basic and fundamental decision as to whether a warrant will in fact issue. In the case at bar the Wayne County Prosecutor had discharged the duties of his office by investigating the charges made against defendant Lindsay Joker and declining to take any further action. Quite obviously the prosecutor found insufficient merit in the charges to justify initiation of criminal proceedings. Only then did Judges Ravitz authorize the issuance of an arrest warrant not signed by the examining magistrate in direct contravention of Rule 9 of the Recorder's Court Rules. This action constituted reversible error. Where there has been resort to such an extraordinary artifice to commence criminal proceedings following the good faith refusal of the prosecutor to act after investigation of a complainant's story, basic fairness, if not due process, would seem to require that we adhere to fundamental principles by requiring that there be strict compliance with the applicable procedures. Should we do less do we not invite seriously the possibility, nay the likelihood, of frivolous proceedings...