People v. Mell, 194892

• Decision Date: 20 October 1998
• Docket Number: No. 194892,194892
• Citation: 586 N.W.2d 745
• Parties: People v. Julie Kim Mell, Michele Lynn Butson NO. 111943. COA
• Court: Michigan Supreme Court

Page 745

586 N.W.2d 745

People v. Julie Kim Mell, Michele Lynn Butson

NO. 111943. COA No. 194892.

Supreme Court of Michigan

October 20, 1998

Prior Report: 227 Mich.App. 508, 576 N.W.2d 428.

Disposition: Leave to appeal is considered. Pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals insofar as the court held that the definition of "lewdness" in State of Michigan ex rel. Wayne County Prosecutor v. Dizzy Duck, 449 Mich. 353, 364, 535 N.W.2d 178 (1995), cannot be applied in this case. Retroactive application of Dizzy Duck to the defendants does not implicate due process or ex post facto concerns because Dizzy Duck did not establish a "new" rule of law in Michigan jurisprudence. People v. Doyle, 451 Mich. 93, 101, 545 N.W.2d 627, cert. den. --- U.S. ----, 117 S.Ct. 192, 136 L.Ed.2d 129 (1996). As we explained in Dizzy Duck, "lewdness" historically has been understood to have a meaning closely related to the word "prostitution." Although the breadth of what might fit the definition of "lewd" cannot be determined, lewdness does include some sexual activities that stop just short of prostitution, "as well as scandalous sexual exhibitions." We concluded that the lap dancing described in Dizzy Duck was unquestionably "lewd." 449 Mich. at 364, 535 N.W.2d 178. The fact that the Court of Appeals had concluded differently in its published decision in Dizzy Duck does not change the analysis. There is a distinction between a decision of this Court that overrules precedent established by this Court and a decision of this Court that overrules a lower court decision. The latter does not invoke the same kinds of due process concerns as the former, in determining whether retroactivity is proper. 451 Mich. at 110-111, 545 N.W.2d 627. This is simply a recognition of the hierarchical nature of the court system. 451 Mich. at 109, 545 N.W.2d 627.

The matter is REMANDED to the Thirty-Sixth District Court for further proceedings consistent with this order.

We do not retain jurisdiction.