People v. Sierb

• Decision Date: 17 March 1998
• Docket Number: Docket No. 107551,No. 9,9
• Citation: 456 Mich. 519,581 N.W.2d 219
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Steven SIERB, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 219

581 N.W.2d 219

456 Mich. 519

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. James Steven SIERB, Defendant-Appellee.

Docket No. 107551.

Calendar No. 9.

Supreme Court of Michigan.

Argued Oct. 8, 1997.

Decided March 17, 1998.

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

Magill & Szymanski (by Duncan M. Szymanski), for the defendant.

Opinion

BOYLE, Justice.

The trial court granted defendant's motion to dismiss with prejudice charges of burning real and insured property following the second declaration of a mistrial because of jury inability to agree on a verdict. We granted leave to appeal to determine whether the trial court correctly inferred this remedy from the substantive Due Process Clause of the constitution. We hold that the due process guarantees of the Michigan and United States Constitutions, Const. 1963, art. 1, § 17, and U.S. Const., Am. XIV, do not create a right to preclude retrial of this defendant in these circumstances. We reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.

I

The defendant was charged and bound over on one count of burning real property, M.C.L. § 750.73; M.S.A. § 28.268, and one count of burning insured property, M.C.L. § 750.75; M.S.A. § 28.270, following a fire that damaged his business in Garden City in June, 1990. Trial began in June, 1993, and a mistrial was declared after the jury was unable to reach a verdict. In February, 1994, a second trial was commenced against the defendant in which substantially the same evidence was offered. Again, the jury was unable to reach a verdict, and a mistrial was declared. ¹

The defendant moved for dismissal of the charges. Acknowledging that the earlier mistrials had not been the result of procedural or substantive errors in the trial process, defendant contended that retrial after two hung juries would be so fundamentally unfair that it would violate the constitutional guarantee of due process. The trial court agreed and dismissed the charges with prejudice. ²

The Court of Appeals affirmed in a two-to-one decision. ³ It reasoned that the emotional and financial strain of a third trial would weigh so heavily on defendant that it would violate the defendant's right to due process. ⁴ We granted leave to appeal. ⁵

II

On appeal, defendant argues only that the due process guarantees of the state and federal constitutions preclude a third trial on these charges. ⁶ The standard of review is de novo with regard to questions of law. People v. Carpentier, 446 Mich. 19, 521 N.W.2d 195 (1994).

The Fourteenth Amendment to the United States Constitution and the Const. 1963, art. 1, § 17 guarantee that no state shall deprive any person of "life, liberty or property, without due process of law." ⁷ Textually, only procedural due process is guaranteed by the Fourteenth Amendment; however, under the aegis of substantive due process, individual liberty interests likewise have been protected against " 'certain government actions regardless of the fairness of the procedures used to implement them.' " Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992), quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). ⁸ The underlying purpose of substantive due process is to secure the individual from the arbitrary exercise of governmental power. ⁹ The defendant has failed to distinguish between the Michigan and federal due process provisions and has not argued that the Michigan provision should be interpreted differently from its federal counterpart. We interpret the state provision as coextensive with the federal provision for purposes of this appeal. Absent definitive differences in the text of the state and federal provision, common-law history that dictates different treatment, or other matters of particular state or local interest, courts should reject the "unprincipled creation of state constitutional rights that exceed their federal counterparts." Sitz v. State Police, 443 Mich. 744, 763, 506 N.W.2d 209 (1993). ¹⁰

III

The defendant relies on five cases in support of the contention that retrial would violate the substantive guarantees of due process: United States v. Ingram, 412 F.Supp. 384 (D.D.C., 1976), State v. Witt, 572 S.W.2d 913 (Tenn., 1978), State v. Moriwake, 65 Haw. 47, 647 P.2d 705 (1982), State v. Abbati, 99 N.J. 418, 493 A.2d 513 (1985), and People v. Thompson, 424 Mich. 118, 379 N.W.2d 49 (1985). However, none of these cases except Thompson addresses the Due Process Clause in the context of a retrial after a properly declared mistrial, ¹¹ and Thompson does so only in dicta. ¹² The prosecutor may not abort a trial over a defendant's objection absent manifest necessity, People v. Dawson, 431 Mich. 234, 252, 427 N.W.2d 886 (1988), retry a defendant on higher charges after mistrial in an effort to penalize the defendant, People v. Ryan, 451 Mich. 30, 545 N.W.2d 612 (1996), nolle prosequi charges at trial without leave of court, M.C.L. § 767.29; M.S.A. § 28.969, or retry a defendant after having one full and fair opportunity at obtaining a conviction. Dawson, supra at 250, 427 N.W.2d 886.

Neither the cases cited nor our independent research supports the proposition that the protections of substantive due process require recognition of a remedy for the harm incident to one or more mistrials. ¹³ Some courts have declared the inherent authority to preclude retrials following mistrials attributable to jury deadlock. However, we reject the rationale that the administration of justice confers authority on this Court to allocate resources available to law enforcement, Abbati, supra at 429, 493 A.2d 513, or to assess the relative priority of discrete charges in a given community.

IV

The United States Supreme Court has declined to expand substantive due process as an independent source of limitation on government.

In Hurtado v. California, 110 U.S. 516, 527, 4 S.Ct. 111, 28 L.Ed. 232 (1884), it was held that the Fourteenth Amendment Due Process Clause did not make applicable to state governments the Fifth Amendment's requirement of indictment and presentment to a grand jury. The Court posited that Fourteenth Amendment due process encompassed only those safeguards not specifically found in the Bill of Rights. 1 LaFave & Israel, Criminal Procedure (2d ed.), § 2.4(b), p. 55. However, the Court eventually concluded that the Fourteenth Amendment incorporated and made applicable to the states numerous protections contained in the Bill of Rights. ¹⁴

Other than in matters relating to marriage, family, procreation, and the right to bodily integrity, the Court has been reluctant to expand the scope of substantive due process beyond the explicit textual source of constitutional protection. Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). Rather than approaching issues of restriction of government authority in areas of criminal proceedings from the unstructured perspective of "whether, in the view of the Court, the governmental action in question was 'arbitrary,' " id., the Court has deemed restriction of government authority appropriately encompassed by the remedy the framers of the Bill of Rights created.

Although it is unclear at this stage whether the Court will ultimately conclude that substantive due process has been supplanted by specific provisions of the Bill of Rights, see Lewis v. Sacramento Co., 98 F.3d 434 (C.A.9, 1996), cert. gtd. --- U.S. ----, 117 S.Ct. 2406, 138 L.Ed.2d 173 (1997), it is clear that the Court will not rely on substantive due process to sanction new remedies that duplicate the protections of specific constitutional provisions. Thus, in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court refused to recognize a constitutional remedy under 42 U.S.C. § 1983 on the basis of the assertion that the use of excessive force in making an arrest constituted a violation of substantive due process. The Court held that the remedy for a claim of excessive force during arrest must be determined with reference to the Fourth Amendment as the explicit constitutional standard protecting the asserted interest, rather than the abstract claim of a violation of substantive due process. ¹⁵

In Collins v. Harker Heights, supra, the Court again underscored its reluctance to expand the doctrine of substantive due process, explaining:

As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.... The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field. [Id. at 125, 112 S.Ct. 1061.] ¹⁶

In Albright v. Oliver, supra at 268-271, 114 S.Ct. 807, the Court similarly declined to recognize a substantive right of due process to be free from criminal prosecution except upon probable cause. Because the first step in alleging a constitutional violation is to identify the specific right infringed, the Court began by reiterating that substantive due process rights have for the most part accorded to "matters relating to marriage, family, procreation, and the right to bodily integrity." Id. at 272, 114 S.Ct. 807. Although the lead opinion was signed by only a plurality of the justices, a majority of the Court joined in the rationale limiting the scope of substantive due process on the ground that

[w]here a particular amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of 'substantive due process' must be the guide for...