Opinion
SC 166194 COA 366449
06-21-2024
JORDAN ENGLEHART and DOMINIC VASQUEZ, Plaintiffs-Appellants, v. STATE COURT ADMINISTRATIVE OFFICE, Defendant-Appellee.
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the application for leave to appeal the August 22, 2023 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Clement, C.J. (concurring).
I concur with this Court's decision to deny the application of plaintiffs, Jordan Englehart and Dominic Vasquez, for leave to appeal. I write separately to address Justice Zahra's claim that our State Court Administrative Office (SCAO) failed to perform a clear legal duty under our court rules.
Plaintiffs, two officers with the Saginaw Police Department, were present for an arrest during which another officer from the Michigan State Police struck a resisting arrestee several times. Plaintiffs did not strike the arrestee, but they allegedly failed to stop the other officer from doing so. After this incident, the Attorney General (AG) filed a misdemeanor complaint in the Saginaw District Court against plaintiffs. The complaint charged plaintiffs with "willful neglect of duty" in violation of MCL 750.478, a misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $1,000. The complaint alleged that plaintiffs neglected their duties by failing to comply with MCL 28.586(1)(c)(i). Plaintiffs moved to quash and dismiss the complaint, arguing that MCL 28.586(1)(c)(i) did not confer any legal duty upon them, and so the complaint failed to allege that plaintiffs violated an independent duty under law.
As Justice Zahra notes, to show willful neglect of duty under MCL 750.478, the prosecution must show that officers violated an independent duty under law. See People v Parlovecchio, 319 Mich.App. 237, 241 (2017).
After plaintiffs moved to quash the complaint, all the district court judges on the Saginaw District Court recused themselves. MCR 2.003(D)(4)(a) says that, when no other judge of the same court is available to preside over a case, SCAO must assign another judge to hear the case. The Chief Judge of the Saginaw District Court therefore asked SCAO to assign a visiting judge to the case per MCR 2.003(D)(4)(a), and SCAO assigned the case to Midland County District Court Judge Michael Carpenter.
MCR 2.003(D)(4)(a) says: "For courts other than the Supreme Court, when a judge is disqualified, the action must be assigned to another judge of the same court, or, if one is not available, the state court administrator shall assign another judge."
In response to plaintiffs' motion to quash, the AG filed an amended complaint with Judge Carpenter, alleging that plaintiffs violated a duty under "federal law, state law, or local ordinance[.]" The amended complaint, however, had not been sworn to by the complainant, and no affidavits were attached to show facts to support reasonable cause as required by MCL 764.1a. Finding that the original complaint did not allege an actual crime and that the amended complaint failed to comply with MCL 764.1a, Judge Carpenter entered an order dismissing the complaints without prejudice.
Rather than appeal Judge Carpenter's order or refile the amended complaint with the required signatures and affidavits, the AG filed a new misdemeanor complaint in the Saginaw District Court. The complaint was identical to the amended complaint filed with Judge Carpenter, again charging plaintiffs with willful neglect of duty and alleging that plaintiffs violated a duty under "federal law, state law, or local ordinance . . . ." All the Saginaw District Court judges again recused themselves, so the Chief Judge of the Saginaw District Court again asked SCAO to assign a visiting judge to the case per MCR 2.003(D)(4)(a). This time, SCAO assigned the case to Isabella County Circuit Court Judge Sara Spencer-Noggle, before whom the case remains pending.
After SCAO assigned their case to Judge Spencer-Noggle, plaintiffs filed a complaint for a writ of mandamus in the Court of Appeals, asking the Court of Appeals to order SCAO to reassign Judge Carpenter to their case. The Court of Appeals entered an order denying plaintiffs' complaint, and so plaintiffs now seek leave to appeal in this Court.
A plaintiff may bring an action for mandamus against a state officer in the Court of Appeals. See MCR 3.305(A)(1); MCL 600.4401.
To be entitled to a writ of mandamus, a plaintiff must show "(1) the plaintiff has a clear, legal right to performance of the specific duty sought, (2) the defendant has a clear legal duty to perform, (3) the act is ministerial, and (4) no other adequate legal or equitable remedy exists that might achieve the same result." Taxpayers for Mich. Constitutional Gov't v Michigan, 508 Mich. 48, 82 (2021) (quotation marks and citation omitted). In Justice Zahra's view, MCR 8.111(D)(1) imposes a clear legal duty on SCAO to assign all criminal actions "arising out of the same transaction or occurrence" to the same judge. I disagree.
Initially, it is unclear whether the requirements of MCR 8.111 apply to SCAO at all. MCR 8.111(A) specifies that MCR 8.111 "applies to all courts defined in subrule 8.110(A), regardless whether the court is acting in the capacity of a trial court or an appellate court." (Emphasis added.) See also MCR 8.101 ("The administrative rules of subchapter 8.100 apply to all courts established by the constitution and laws of Michigan, unless a rule otherwise provides.") (emphasis added). Given that MCR 8.111 expressly says that it applies to all courts, this reasonably implies that it does not apply to entities that are not courts, such as SCAO. See Comerica, Inc v Dep't of Treasury, 509 Mich. 204, 218 (2022) (noting that under the negative-implication canon, the express mention of one thing implies the exclusion of other similar things).
Besides, even if MCR 8.111 does apply to SCAO, MCR 8.111(D)(1) would not clearly require the refiled criminal action here to be assigned to Judge Carpenter. In my view, MCR 8.111(D)(1) requires an action arising out of the same transaction or occurrence as an earlier action to be assigned to the same judge only if the earlier action is still pending before that judge. See Pickering v Pickering, 253 Mich.App. 694, 702 n 3 (2002) ("Second, if a divorce or custody proceeding already exists when the [personal protection order (PPO)] is filed, the PPO will be assigned to the judge presiding over the custody or divorce proceeding.") (emphasis added). First, MCR 8.111(D)(1) says, "[I]f one of two or more actions arising out of the same transaction or occurrence has been assigned to a judge, the other action or actions must be assigned to that judge[.]" Because MCR 8.111(D)(1) uses the present perfect tense, "has been," this suggests that Subrule (D)(1) applies only if "one of two or more actions" is still pending before the same judge. See Girard v Wagenmaker, 437 Mich. 231, 242 (1991) ("The present perfect tense generally indicates action that was started in the past and has recently been completed or is continuing up to the present time or shows that a current action is logically subsequent to a previous recent action.") (cleaned up). Second, if Subrule (D)(1) required an action arising out of the same transaction or occurrence as an earlier action to be assigned to the same judge no matter if the earlier action were still pending, there would have been no need for MCR 8.111(D)(2) to specify that an action arising out of "the same transaction or occurrence as a civil action previously dismissed or transferred" should be assigned to the same judge. See South Dearborn Environmental Improvement Ass'n, Inc v Dep't of Environmental Quality, 502 Mich. 349, 361 (2018) ("When interpreting a statute, we must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.") (quotation marks and citation omitted).
In re Sanders, 495 Mich. 394, 404 (2014) (noting that this Court uses the same principles that govern statutory interpretation when interpreting court rules).
In the end, whether a refiled criminal action should be assigned to the same judge who presided over the first action is a matter that we left to SCAO's discretion. In MCR 2.003(D)(4)(a), we directed SCAO to "assign another judge" when no judges of a court are available to preside over a case by reason of disqualification, and we included nothing in our court rules limiting SCAO's discretion over which judge to assign. If this Court wishes to limit SCAO's discretion moving forward, the appropriate way to do so would be either to direct SCAO to change its judicial assignment procedures internally or to amend our court rules. Accordingly, I concur with this Court's decision to deny leave to appeal.
In exercising this judgment, SCAO considers multiple factors when deciding which judge to assign a case to, including: (1) proximity of the visiting judge to the court in which an action was filed; (2) each judge's caseload; (3) whether a judge has filed all required reports with SCAO; (4) the cost to the public; and (5) any another factors deemed appropriate by SCAO. SCAO, Judicial Assignment Procedures (February 2021), pp 2-3.
Zahra, J. (dissenting).
I would grant defendants the relief they seek and order their cases reassigned to District Judge Michael Carpenter.
The criminal complaints at issue were filed against Michigan State Police Officer Zachary Tebedo and Saginaw Police Officers Jordan Englehart and Dominic Vasquez. The officers are collectively referred to as defendants for consistency and convenience. They remain defendants in the relevant and ongoing prosecution. However, the dispute before us is in a posture of superintending control and mandamus, whereby the officers are identified as plaintiffs.
The Attorney General (AG) criminally charged defendants (law enforcement officers) in Saginaw County under a theory of "willful neglect of duty" and correspondingly, a violation of MCL 28.586(1)(c)(i) governing written policies of certain police departments. The Saginaw County bench recused in full. Therefore, case assignment was removed from the processes and administration of local courts and placed under the administration of the State Court Administrative Office (SCAO), which transferred the case to Midland County, where Judge Michael Carpenter heard arguments regarding dismissal. After a conference with all parties, it was understood that any decision on whether to dismiss the charges would be appealed by the losing party and that the proceedings would be stayed pending the appeal. Judge Carpenter dismissed the criminal complaints without prejudice, concluding that MCL 28.586(1)(c)(i) did not impose a duty on the police officer defendants. The AG attempted to file amended complaints to resolve this issue. Specifically, the AG removed any description or statements as to what legal "duty" the officers actually violated. But surprisingly, the AG failed to sign the complaint as required by law.
MCL 750.478; People v Parlovecchio, 319 Mich.App. 237, 241 (2017) (explaining that as a necessary element of the charges, the prosecution must establish that the officers violated an independent duty under law).
See MCR 2.003(D)(4)(a). Generally, case reassignments are made by local courts. MCR 2.003(D)(3) and (4) (discussing the predominant role of local courts in disqualification and the narrow circumstances of SCAO involvement); MCR 8.111(B) and (C) (explaining how most decisions on reassignment are made by local courts).
The amended complaints simply asserted in broad and general terms that defendants violated a duty under "federal law, state law, or local ordinance[.]"
No attorney had actually signed the complaint, and an affidavit was not attached, as required to establish factual predicates for a summons. MCL 764.1a; see also MCR 6.101(B).
In lieu of filing an appeal-as contemplated by the parties before Judge Carpenter made his ruling-or refiling the amended complaints with a signature, the AG filed a new but nearly identical case in the Saginaw Circuit Court. This new case involved the same defendants, the same allegations, and the same criminal violation; the complaints in the new case were the same as the amended complaints filed before Judge Carpenter that the AG did not sign, i.e., the complaints that identified no specific legal duty. Notably, the time for the AG to file an appeal of Judge Carpenter's order had not yet expired. Therefore, under Michigan constitutional law, jurisdiction of the initial case still rested with Judge Carpenter or the Court of Appeals, if the AG filed an appeal. In addition, the amended complaints serving as the basis for the "new" case were signed on the same date as the order dismissing the initial case without prejudice.
Const 1963, art 6, § 13 (stating that circuit courts have "original jurisdiction in all matters not prohibited by law"); MCL 600.601 (describing circuit court jurisdiction); People v Washington, 508 Mich. 107, 122, 126 (2021) (holding that jurisdiction is held in appellate courts after appeal of a final order and explaining that the trial court "undoubtedly had subject-matter jurisdiction over defendant's case" but "the Court of Appeals had appellate jurisdiction over defendant's appeal of right from the trial court's judgment"); MCR 7.202(6)(b)(i) (including in the definition of "final order" an "order dismissing the case" in a criminal proceeding).
Upon refiling of the prosecutions, the Saginaw County judges again recused; however, for this action, SCAO did not assign the case to Judge Carpenter, who had already been assigned the case, was acquainted with the facts, and had resolved a motion to quash mere days prior. Instead, SCAO assigned the refiled case to a new court with a new judge in an entirely different county. The refiled case proceeded before the Honorable Sara Spencer-Noggle in Isabella County.
Defendants challenged this assignment away from Midland County and Judge Carpenter, who had previously reviewed, managed, and issued an opinion in the same case. Defendant Zachary Tebedo filed a writ of superintending control in Docket No. 165811,while defendants Jordan Englehart and Dominic Vasquez filed a writ of mandamus in Docket No. 166194.
See In re Tebedo, Mich. (2024) (Docket No. 165811).
In assigning the refiled case to a new jurisdiction, SCAO apparently premised this new assignment on its interpretation of the basic and brief rules for reassignment stated in the Michigan Court Rules and its internal policies. My review of our reassignment rules does not support the action of SCAO. "[A]ctions arising out of the same transaction or occurrence" must be assigned to the same judge, and there is no daylight between this "new" case and the initial case, which was assigned to Judge Carpenter and remains ongoing. The case presents a continuing prosecution involving a single, intermingled process, whereby the AG made slight amendments to complaints contemporaneously and in response to a court order. It should not be a surprise that the rules on preliminary examinations expressly state that, after quashing an indictment for lack of probable cause, a subsequent examination for a refiled case "must be held before the same judicial officer" absent disqualification or good cause. And in this case, the trial court granted a motion to quash and ordered dismissal without prejudice, noting that a directed verdict would be required upon presentation of evidence if the case proceeded to trial.
Like local courts, SCAO provides certain factors it considers when it assigns cases, such as the expenditure of judicial resources and caseload. SCAO, Judicial Assignment Procedures (February 2021), pp 2-3. In so doing, SCAO policy expressly cites reassignment rules that govern judicial proceedings throughout the state. Id. at 9, citing MCR 2.003 and MCR 8.111. This makes sense given that when SCAO makes assignments, it steps into the shoes of local courts and court administrators. MCR 2.003(A) and (D)(4)(a). Reassignments inherently involve cases filed in one court that are transferred to another court. See MCR 8.111(D) (discussing "actions" that are "assigned" to judges). Basic rules on general administrative orders, including rules on recordkeeping, local rules, and reassignments, generally apply to "all courts," notwithstanding any administrative assistance performed by SCAO. MCR 8.101; MCR 8.110(A); MCR 8.111(A); MCR 8.112; MCR 8.119(A).
MCR 8.111(D)(1). In addition, the rules provide that the chief judge of a court, whom SCAO replaces in the case of court-wide recusal, can reassign cases if a judge for "good cause cannot undertake" the case. MCR 8.111(C)(1).
See, e.g., People v Perkins, 468 Mich. 448, 453 (2003) (analyzing the legal requirements of a criminal sexual conduct charge when deciding a bindover question from a preliminary examination).
In sum, my understanding is the assignment rules in Michigan clearly contemplate assignment to the initial judge where a case was proceeding in the past. That makes abundant sense, given the real possibility of prosecutorial abuse, whether intentional or incidental, in refiling the same criminal case after having received an adverse decision and obtaining an entirely new forum. It also prejudices defendants by forcing them to restart their defense before a different court in a different jurisdiction. Therefore, it is of little surprise that reassignment of a refiled case to the initially assigned judge is basic criminal procedure in local state and federal courts throughout Michigan. In this instance, however, SCAO failed to follow this rule, and its failure to do so implicates basic concerns of undue prosecutorial advantage and prejudice to the defense.
The interests in promoting continuity, consistency, and judicial efficiency-and in limiting abuse and unwarranted burdens on the opposing party-are embodied in the practice of reassignment to the initially assigned judge in the civil context. These interests have even greater importance in the context of criminal prosecutions. The refiling procedure gives the prosecution the ability to selectively dismiss and refile a case to obtain a judge or proceeding they believe is most favorable. Refiling before judges who may or may not have ruled in the prosecution's favor undermines the independence and objectivity of the judicial branch, given that the prosecution can "spin the wheel" again to move their case away from a judge who has ruled against the prosecution and toward potentially favorable tribunals rather than advancing their case through neutral and standard adjudicative processes. But moreover, forum "sorting" can be done unintentionally. As a natural progress of litigation and random assignment, when prosecutors refile dismissed cases, the cases move away from judges that ruled against them and toward judges that do not dismiss the case. Refiling criminal charges after adverse decisions or seeing the name of the assigned judge risks vital public respect for the judicial process. See MCR 2.003 (setting out recusal rules focusing on the public perception of bias or improper behavior).
Automatic reassignment in the middle of a criminal proceeding to a new forum upon refiling of the same case impacts the ability of the defendant to secure and develop a competent and consistent defense. The defendant is subject to the choices and authority of the prosecution and the prosecution's charging decision. By condoning repeated charges only to be dropped and brought before an entirely different jurisdiction and judge, resources, consistency, strategy, and overall expense for the defense undoubtedly increase. There can be no doubt that while judges are impartial, the strategy and approach toward litigating before different judges, in different communities, and in different courts can be materially distinct, if for no other reason than different courtroom procedure and practice. See also People v Turmon, 128 Mich.App. 417, 421, 423 (1983) (noting the due-process interest in protecting against "repeated prosecutions of a defendant for the same offense" and holding that refiling after an adverse ruling violated due process); United States v Ashrafkhan, 821 F Appx 428, 437-438 (CA 6, 2020) (collecting federal caselaw and stating that prosecutorial action to get before a different judge could implicate due process but noting that such a violation has not been found without a clear demonstration of prejudice such as through a judge lacking impartiality); United States v Pearson, 203 F.3d 1243 (CA 10, 2000) (reasoning that prosecutorial action to assign the case to judges the prosecution prefers does not violate due process without more but does raise serious concerns of proper judicial administration and fairness); People v Webbs, 263 Mich.App. 531, 533-534 (2004) (discussing the due-process implications of court venue and the interests in assigning the proper court to "minimize the costs of litigation not only by reducing the burdens on the parties, but also by considering the strains on the system as a whole") (quotation marks and citation omitted).
See, e.g., Oakland County Administrative Order No. 2022-16, § IV(B)(2)(d) (stating that previously dismissed criminal cases are assigned to the same judge on refiling); Kent County Administrative Order No. 2022-02, § III(C)(7) (indicating the same and placing a duty on the prosecution to inform the court); ED Mich. LR 83.11(c); WD Mich. LCrR 56.4. Defendants also assert, without dispute, that standard practice in Saginaw County is to reassign refiled cases to the initial judge.
While the prosecution removed the reference to MCL 28.586(1)(c)(i) governing written policies of certain police departments from its criminal complaint as the duty defendants allegedly violated, there remain serious and unresolved questions posed by Judge Carpenter's conclusion that the AG had failed to state a valid claim. Now, the complaint does not even specify the "duty" that the defendants allegedly violated. Such a question should be resolved by the judge who has already reviewed the same nonobvious legal question involving the same case and the same parties. It is perhaps not to the point of violating basic principles of fairness so as to indicate an abuse of the system; proof of a due-process violation is a high bar. See People v Dunbar, 463 Mich. 606, 617-618 (2001) (holding that any due-process prohibition against judge-shopping, to the extent it existed, was not violated when a prosecutor provided an alternative justification and there was no direct evidence proving pretext). However, it does not go without notice that this case presents a highly disputed and legally uncertain prosecution in which the prosecutor is refiling the case after an adverse ruling on a dispositive motion and obtaining a new judge in a different jurisdiction.
For these reasons, I would grant defendants relief and reassign their cases to Judge Michael Carpenter.