Preview:

Michigan Supreme Court Lansing, Michigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v EDWIN DEWAYNE RICHMOND, Defendant-Appellant.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED April 30, 2010

No. 136648

BEFORE THE ENTIRE BENCH CAVANAGH, J. We granted leave to appeal to address whether the dismissal of the charges against defendant on the prosecution's motion rendered moot the prosecution's subsequent appeal in the Court of Appeals. People v Richmond, 483 Mich 1115 (2009). We hold that the prosecution's voluntary dismissal of the charges rendered its appeal moot and, as a result, the Court of Appeals erred by reaching the substantive issues of the prosecution's appeal. Accordingly, we vacate the judgment of the Court of Appeals. I. FACTS AND PROCEDURAL HISTORY After receiving an anonymous tip, the police seized a bag of garbage that was left at a curb in front of defendant's home. The bag contained a plant stem that tested positive for marijuana and mail that was addressed to defendant. The police then

obtained a search warrant from a magistrate to search defendant's home. On the basis of evidence gathered during the execution of the search warrant, defendant was subsequently charged with manufacturing 5 kilograms or more but less than 45 kilograms of marijuana, MCL 333.7401(2)(d)(ii), possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and possession of a firearm during the commission of a felony, MCL 750.227b. After defendant was charged and bound over to the circuit court for trial, he moved to quash the bindover and suppress the evidence, arguing, among other things, that the affidavit supporting the warrant was insufficient to establish probable cause and the search was therefore illegal. The circuit court suppressed the evidence, ruling that the examining magistrate had abused her discretion in issuing the warrant. The circuit court's ruling excluded all the evidence against defendant. The prosecutor then moved to voluntarily dismiss the case without prejudice, stating that "[g]iven the Court's decision, it would make more sense for me to dismiss this case at this time since we are not able to go forward since the evidence has been suppressed."1 As a result, the court signed an order of

acquittal/dismissal, which indicated that the case was dismissed without prejudice "on the motion of the People." The prosecution appealed the circuit court's decision to suppress the evidence to the Court of Appeals.

There is a dispute about whether the prosecution's voluntary dismissal of the charges was a nolle prosequi under MCL 767.29. We need not, however, address that dispute because it does not affect our analysis of the issue that is currently before this Court.

1

2

The Court of Appeals reversed the circuit court's suppression order and remanded the case for reinstatement of the charges against defendant. People v Richmond,

unpublished opinion per curiam of the Court of Appeals, issued April 22, 2008 (Docket Nos. 277012 and 277015). Defendant appealed in this Court, arguing that the Court of Appeals erred by reversing the circuit court on the merits. Defendant also argued, for the first time, that the prosecution could not appeal the circuit court's ruling in the Court of Appeals because the issue was moot after the prosecution voluntarily obtained dismissal of the case. After initially denying defendant's application for leave to appeal, People v Richmond, 482 Mich 1041 (2008), we granted defendant's application on reconsideration, limited to the consideration of the mootness issue, Richmond, 483 Mich at 1115. II. ANALYSIS In this case, we must determine whether the dismissal of the charges on the prosecution's motion rendered moot the prosecution's subsequent appeal in the Court of Appeals and, if so, whether the issue was nevertheless justiciable. We hold that the prosecution's voluntary dismissal of the charges rendered its appeal moot and, because a court should not hear moot issues except in circumstances that are not applicable under the facts of this case, the Court of Appeals erred by reaching the substantive issues of the prosecution's appeal. A. OVERVIEW OF THE MOOTNESS DOCTRINE It is well established that a court will not decide moot issues. This is because it is the "principal duty of this Court . . . to decide actual cases and controversies." Federated 3

Publications, Inc v City of Lansing, 467 Mich 98, 112; 649 NW2d 383 (2002), citing Anway v Grand Rapids R Co, 211 Mich 592, 610; 179 NW 350 (1920). That is, "`[t]he judicial power . . . is the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.'" Anway, 211 Mich at 616 (citation omitted). As a result, "this Court does not reach moot questions or declare principles or rules of law that have no practical legal effect in the case before" it. Federated Publications, 467 Mich at 112. Although an issue is moot, however, it is nevertheless justiciable if "the issue is one of public significance that is likely to recur, yet evade judicial review." Id. It is "`universally understood . . . that a moot case is one which seeks to get a judgment on a pretended controversy, when in reality there is none, . . . or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.'" Anway, 211 Mich at 610, quoting Ex parte Steele, 162 F 694, 701 (ND Ala, 1908). Accordingly, a case is moot when it presents "nothing but abstract questions of law which do not rest upon existing facts or rights." Gildemeister v Lindsay, 212 Mich 299, 302; 180 NW 633 (1920). In general, because reviewing a moot question would be a "`purposeless proceeding,'" Stern v Stern, 327 Mich 531, 534; 42 NW2d 737 (1950) (citation omitted), appellate courts will sua sponte refuse to hear cases that they do not have the power to decide, including cases that are moot, In re MCI Telecom Complaint, 460 Mich 396, 434 n 13; 596 NW2d 164 (1999), citing Ideal Furnace Co v Int'l Molders' Union of North

4

America, 204 Mich 311; 169 NW 946 (1918).2 Whether a case is moot is a threshold issue that a court addresses before it reaches the substantive issues of the case itself. In re MCI, 460 Mich at 435 n 13. B. APPLICATION OF THE MOOTNESS DOCTRINE In this case, the prosecution's own action clearly rendered its subsequent appeal moot. After the circuit court suppressed the evidence, the prosecution moved to dismiss the charges against defendant. As a result of the prosecution's voluntarily seeking

dismissal of the charges, the circuit court dismissed the charges without prejudice and any existing controversy between the parties was rendered moot. Once the charges were dismissed, an action no longer existed, and, thus, there was no longer any controversy left for the Court of Appeals to consider. Accordingly, because all the charges against defendant had been dismissed at the time of the prosecution's appeal, the Court of Appeals judgment was based on a "`pretended controversy,'" Anway, 211 Mich at 610 (citation omitted), that did not "rest upon existing facts or rights," Gildemeister, 212 Mich at 302. Because a court cannot "tender advice" on matters that are no longer in litigation, see Anway, 211 Mich at 611-612, quoting Snell v Welch, 28 Mont 482, 482; 72 P 988 (1903) (quotation marks omitted), the Court of Appeals made a determination on a "`mere barren right--a purely moot question,'" which, under this Court's precedent, it

Indeed, because a court should, on its own motion, recognize and reject claims that it does not have the power to decide, defendant's failure to raise the mootness argument at the Court of Appeals is irrelevant to this Court's analysis. See In re MCI, 460 Mich at 434-435 n 13.

2

5

did not have the power to decide, Anway, 211 Mich at 605, quoting Tregea v Modesto Irrigation Dist, 164 US 179, 186; 17 S Ct 52; 41 L Ed 395 (1896).3 Although the prosecution does not have a constitutional right to appeal, the dissent argues that the prosecution may nevertheless appeal because the dismissal was a "final order" and the prosecution has a statutory right under MCL 770.12(1) and MCR 7.202(6)(b) to appeal a final order. The "final order" that the prosecution appealed in this case, however, was the order of acquittal/dismissal that was granted at the prosecution's request. This dismissal rendered the other issues in the case moot,4 including the

evidentiary issue, and the prosecution's statutory right to appeal does not give courts the power to review an otherwise moot issue.5 Thus, in this case, the prosecution, not this

Additionally, under the facts of this case, the Court of Appeals may have encroached on an executive function in violation of the doctrine of separation of powers by remanding for reinstatement of the charges. If the prosecution's voluntary dismissal was a nolle prosequi under MCL 767.29, the prosecution could have reinstated the "original charge on the basis of obtaining a new indictment . . . ." People v Curtis, 389 Mich 698, 706; 209 NW2d 243 (1973). Because the case was dismissed without prejudice, however, the prosecution retained the executive power to reinstate the charges regardless of whether the prosecution's voluntary dismissal was a nolle prosequi.
4

3

As one jurisdiction has noted:

An order to dismiss without prejudice entered at the request of the State is different from an order to dismiss entered on the court's own volition or at the request of the defendant, because the State is actually withdrawing the case as opposed to the court's rendering a decision on its own motion or at the request of the defendant, either of which would vacate, annul, or void the prosecution. [State v Grager, 713 NW2d 531, 534 (ND, 2006).] Given this reasoning, we respectfully disagree with the dissent's assertion that we have failed to provide an answer to its claim that this Court's decision impermissibly
5

6

Court, denied itself appellate review by obtaining dismissal of its own case and, therefore, rendering its appeal moot.6 When the issues raised by a party on appeal are clearly moot, an appellate court should ordinarily decline to address the substantive issues raised in the appeal unless an exception to the mootness doctrine applies. As noted, this Court has held that even though an issue is moot, it is nevertheless justiciable if the issue is one of public significance that is likely to recur, yet may evade judicial review. Federated

Publications, 467 Mich at 112. The facts of this case, however, do not meet this exception. This Court has declined to apply this exception when the party seeking review of an issue on appeal has rendered the issue moot by that party's own volitional conduct and the party could have avoided mooting the issue by seeking an appeal. For example, in Federated Publications, the city denied a newspaper's Freedom of Information Act (FOIA) request. Id. at 103. The newspaper subsequently sued for disclosure under FOIA. The circuit court granted, in part, the newspaper's motion for summary

disposition and ordered the release of certain documents. The city filed an emergency motion in the Court of Appeals to stay the circuit court proceedings. Id. at 104. The prevents the prosecution from pursuing a statutory right to appeal. Contrary to the dissent's assertion, MCL 770.12(1) does not give this Court the power to review an otherwise moot issue. Moreover, because the prosecution appealed the dismissal order that it had requested, the prosecution was not an aggrieved party and likely lacked standing. See Richmond, 482 Mich at 1041 (KELLY, J., dissenting).
6

7

Court of Appeals initially granted the city's emergency motion to stay, but later vacated its order. Id. at 104-105. After the Court of Appeals vacated its order, the city released the documents that were subject to the circuit court's order to the newspaper without taking any additional action. Id. at 105. The city later appealed the circuit court's motion for partial summary disposition as of right, and the Court of Appeals affirmed the circuit court's decision in part. Federated Publications, Inc v City of Lansing, unpublished opinion per curiam, issued November 14, 2000 (Docket Nos. 218331 and 218332). The city appealed in this Court. After this Court determined that the city's release of the documents to the newspaper rendered moot any claimed exemptions for those records, we reasoned that the case did not present an issue that was likely to recur yet regularly evade judicial review because "[q]uite simply, all that the city would have had to do . . . to secure review of [the] issue was to appeal the disclosure order to this Court." Federated Publications, 467 Mich at 112-113. Thus, because the city released the

documents, this Court determined that the issue would not otherwise have evaded review because it had been rendered moot only by the city's own conduct. See id. at 101, 113.7 Like the city's action in Federated Publications, the issue in this case is not likely to recur yet evade judicial review because the prosecution's own conduct rendered the issue moot. The prosecution could have obtained judicial review of the circuit court's Similarly, in Ideal Furnace, this Court declined to reach the substantive issues of an appeal after a defendant was adjudicated guilty of contempt of court and paid a fine. This Court held that the questions on appeal were "purely academic" because the defendant, by his own act of paying the fine, had "discharged the order entered by the court below." Ideal Furnace, 204 Mich at 312-313.
7

8

decision by simply seeking an interlocutory appeal of the suppression order, rather than voluntarily obtaining dismissal of the charges.8 Therefore, by opting to dismiss the charges, the prosecution voluntarily removed from its claim the controversy that would generally have allowed it to seek appellate review.9 As in Federated Publications, we decline to extend the mootness exception on the basis of mere speculation that the issue "could" recur but evade judicial review because of the prosecution's own procedural misstep.10
8

Notably, the dissent fails to recognize that the prosecution did not pursue this potential avenue for relief and instead opted to dismiss its own case and therefore render its appeal moot. Although interlocutory appeals are granted by leave of the Court of Appeals, see MCR 7.205, we note that the prosecution should be able to meet the requirements of the court rule in cases such as this with little difficulty. While granting an interlocutory appeal is reviewed on a case-by-case basis, when an order to suppress evidence effectively eliminates the prosecution's case, the prosecution should be able to show that it "would suffer substantial harm by awaiting final judgment before taking an appeal" because requiring the prosecution to proceed to trial without the suppressed evidence could preclude appellate review given that the prohibition against double jeopardy, see Const 1963, art 1,

Download PEOPLE OF MI V EDWIN DEWAYNE RICHMOND.pdf

Michigan Law