PEOPLE OF MI V GEVON RAMON DAVIS
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED APRIL 7, 2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 125436
GEVON RAMON DAVIS,
Defendant-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
The
issue
presented
is
whether
our
Double
Jeopardy
Clause1 prohibits the state of Michigan from prosecuting
defendant
for
the
theft
of
an
automobile
from
Michigan
after defendant pleaded guilty in Kentucky, where he was
apprehended,
to
a
charge
of
automobile by unlawful taking.
and
hold
that
our
Double
attempted
theft
of
the
We overrule People v Cooper2
Jeopardy
Clause
1
Const 1963, art 1, § 15.
2
398 Mich 450; 247 NW2d 866 (1976).
does
not
bar
defendant’s
successive
state
prosecution
in
Michigan
because the entities seeking to prosecute defendant in this
case—Kentucky and Michigan—are separate sovereigns deriving
their authority to punish from distinct sources of power.
The decision of the Court of Appeals affirming the trial
court’s
order
granting
defendant’s
motion
to
quash
the
information is reversed and the case is remanded to the
trial court for proceedings consistent with this opinion.
Facts
It
is
Chevrolet
not
disputed
Malibu,
automobile
from
that
defendant
valued
at
$8,200,
Michigan
to
stole
and
Kentucky,
a
drove
where
he
1999
the
was
apprehended.
On August 22, 2001, defendant was charged in Kentucky
with theft by unlawful taking or disposition of property
valued at $300 or more.3
On September 4, 2001, defendant
pleaded guilty to an amended charge of attempted theft by
unlawful taking or disposition of property valued at $300
or more.4
He was sentenced to 365 days in jail, to be
suspended during two years’ probation.
On March 22, 2002, defendant was charged in Genesee
County,
3
4
Michigan,
with
unlawfully
driving
away
a
motor
Ky Rev Stat Ann 514.030.
Ky Rev Stat Ann 506.010 and 506.020 address criminal
attempt.
2
vehicle and with receiving and concealing stolen property.5
Defendant moved to quash the information on the basis of
double
jeopardy,
asserting
that
the
double
jeopardy
provision of the Michigan Constitution6 and the case People
v Cooper prohibited a second prosecution in Michigan for
the
theft
of
the
automobile,
unless
the
interests
Michigan and Kentucky were substantially different.
of
The
trial court granted defendant’s motion on June 11, 2002,
and dismissed the charges, concluding that the case was
controlled by People v Cooper.
The
prosecutor
appealed,
and
the
Court
affirmed in an unpublished opinion per curiam.7
of
Appeals
The Court
of Appeals concluded that Cooper was still the controlling
law because only three justices from this Court would have
overruled Cooper in People v Mezy.8
This Court granted the prosecutor’s application for
leave to appeal.9
5
MCL 750.413 and 750.535(3)(a).
6
Const 1963, art 1, § 15.
7
People v Davis, unpublished opinion per curiam of the
Court of Appeals, issued November 25, 2003 (Docket No.
242207).
8
453 Mich 269; 551 NW2d 389 (1996).
9
470 Mich 870 (2004).
3
Standard of Review
Whether the information should have been quashed on
the basis of double jeopardy is a question of law that this
Court reviews de novo.
People v Nutt, 469 Mich 565, 573;
677
In
NW2d
1
provision,
(2004).
the
interpreting
primary
rule
of
a
constitutional
constitutional
interpretation has been described by Justice Cooley:
“A constitution is made for the people and
by the people. The interpretation that should be
given it is that which reasonable minds, the
great mass of the people themselves, would give
it. ‘For as the Constitution does not derive its
force from the convention which framed, but from
the people who ratified it, the intent to be
arrived at is that of the people, and it is not
to be supposed that they have looked for any dark
or abstruse meaning in the words employed, but
rather that they have accepted them in the sense
most obvious to the common understanding, and
ratified the instrument in the belief that that
was the sense designed to be conveyed.’”[Traverse
City School Dist v Attorney General, 384 Mich
390, 405; 185 NW2d 9 (1971)(quoting Cooley’s
Const Lim 81)(added emphasis omitted).]
Analysis
At issue in the present case is whether our Double
Jeopardy Clause prohibits charging and trying defendant in
Michigan for the theft of an automobile from Michigan after
he pleaded guilty in Kentucky, where he was apprehended, to
attempted theft of the automobile.
requires
us
to
determine
whether
4
Answering this question
this
Court
correctly
construed our Double Jeopardy Clause and correctly applied
the doctrine of dual sovereignty in People v Cooper.10
Michigan’s Double Jeopardy Clause provides, “No person
shall be subject for the same offense to be twice put in
jeopardy.”
Const 1963, art 1, § 15.
The federal provision
is substantially similar, providing “nor shall any person
be subject for the same offence to be twice put in jeopardy
of life or limb . . . .”
US Const, Am V.
In Nutt, supra,
we explained that the protections provided by the Double
Jeopardy Clause include:
prosecution
protection
offense
for
the
against
after
(1) protection against a second
same
a
offense
second
conviction,
after
prosecution
and
(3)
acquittal,
for
protection
multiple punishments for the same offense.
the
(2)
same
against
Nutt, supra at
574.
In Nutt, we further concluded that
10
Justice Kelly in dissent asserts that the majority
answers the wrong question when it decides whether this
Court “correctly applied the doctrine of dual sovereignty
in People v Cooper.”
“The appropriate question,” she
asserts,
“is
whether
the
Cooper
decision
correctly
interpreted our state’s constitution.”
Post at 9.
The
dissent is mistaken.
There is no difference between the
“question” as phrased by the majority and the “question” as
phrased by the dissent; both are ways of stating the issue
in this case, which is whether Michigan’s Constitution
prohibits charging and trying defendant in Michigan for the
theft of an automobile from Michigan after he pleaded
guilty in Kentucky, where he was apprehended, of attempted
theft of the automobile.
5
in adopting art 1, § 15, the people of this state
intended that our double jeopardy provision would
be construed consistently with Michigan precedent
and the Fifth Amendment. [Id. at 591.]
This conclusion was based, in part, on an examination of
the record of the constitutional convention in 1961.
at 588-590.
contained
Id.
In 1835, Michigan’s Constitution, art 1, § 12,
language
constitution:
similar
to
that
of
the
federal
“No person, for the same offense, shall be
twice put in jeopardy of punishment.”
Nutt, supra at 588.
In
this
1850
and
1908,
the
language
of
provision
was
changed to “No person, after acquittal upon the merits,
shall be tried for the same offense.”
Const 1850, art 6, §
29; Const 1908, art 2, § 14; Nutt, supra at 588; 1 Official
Record, Constitutional Convention 1961, p 465.
constitutional
convention,
it
was
proposed
At the 1961
that
the
provision be revised to once again mirror the language of
the federal constitution.
Record,
Constitutional
discussing
the
proposed
Nutt, supra at 589; 1 Official
Convention
amendment
1961,
at
p
the
465.
In
constitutional
convention, it was noted by Delegate Stevens that even when
the language differed from the federal provision in 1850
and 1908, this Court had “‘virtually held that this means
the same thing as the provision in the federal constitution
. . . .’”
1961,
p
539.
1 Official Record, Constitutional Convention
This
historical
6
context
supports
Nutt’s
conclusion that Michigan’s double jeopardy provision should
be construed consistently with the Fifth Amendment.
In Bartkus v Illinois,11 the defendant was tried in
federal
district
insured
savings
After
his
court
and
for
loan
acquittal,
a
the
robbery
association
state
grand
of
and
a
federally
was
jury
acquitted.
indicted
defendant on robbery charges from the same robbery.
defendant
was
imprisonment.
tried,
convicted,
and
sentenced
to
the
The
life
On appeal, the defendant asserted that his
state conviction was barred by double jeopardy.
The United
States Supreme Court disagreed, concluding that successive
state
and
transaction
federal
or
Jeopardy Clause.
11
12
prosecutions
conduct
were
not
based
barred
359 US at 122-124.12
on
by
the
the
same
Double
The Court reasoned:
359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959).
Justice Kelly references the more than thirty years
of case law on which Bartkus was based but then asserts
that the foundation for Bartkus is “questionable” and that
it was undermined by Benton v Maryland, 395 US 784; 89 S Ct
2056; 23 L Ed 2d 707 (1969). Post at 3, 5. We disagree.
As noted in Bartkus, the body of precedent on which it
relied provided “irrefutable evidence that state and
federal courts have for years refused to bar a second trial
even though there had been a prior trial by another
government for a similar offense,” and concluded that “it
would be disregard of a long, unbroken, unquestioned course
of impressive adjudication for the Court now to rule that
due process compels such a bar.
Bartkus, supra at 136.
Moreover, the Heath case discussed later in this opinion
makes it clear that the United States Supreme Court meant
what it said in Bartkus.
7
It would be in derogation of our federal
system to displace the reserved power of States
over state offenses by reason of prosecution of
minor federal offenses by federal authorities
beyond the control of the States. [Id. at 137.]
In People v Cooper, the defendant was acquitted in
federal court of attempting to rob a bank.
He was then
tried in state court on charges stemming from the same
criminal
act.
defendant’s
barred
by
398
Mich
at
453.
argument
that
his
trial
double
jeopardy,
this
In
in
Court
addressing
state
the
court
was
acknowledged
the
holding in Bartkus that successive prosecutions were not
barred by double jeopardy, but decided that a “trend in
United States Supreme Court decisions” suggested “that the
permissibility
requirement
of
reassessment.”
of
our
Federal-state
Federal
Id. at 457.
prosecutions
system
[was]
as
open
a
to
The Court opined that the
trend it perceived required increased scrutiny of the dual
sovereignty
successive
doctrine,
and
prosecutions.
that
Id.
double
at
jeopardy
459-460.13
may
The
bar
Court
explained:
13
The Cooper Court cited Elkins v United States, 364
US 206; 80 S Ct 1437; 4 L Ed 2d 1669 (1960), and Murphy v
Waterfront Comm of New York Harbor, 378 US 52; 84 S Ct
1594; 12 L Ed 2d 678 (1964), as cases that undermined the
Bartkus decision.
But neither case specifically addressed
whether successive prosecutions were barred by double
jeopardy.
The issue in Elkins was whether “articles
obtained as the result of an unreasonable search and
seizure by state officers, without involvement of federal
8
The dual sovereignty notion is predicated on
the belief that state criminal justice systems
should be strong.
Additionally, there is the
fear that Federal legislation which covers a
criminal act may involve interests unlike the
interests which state legislation covering the
same criminal act may seek to promote. We agree
that where an individual’s behavior violated
state and Federal laws which are framed to
protect different social interests, prosecution
by one sovereign will not satisfy the needs of
the other sovereign.
In such a case, given the
Federal
government’s
preemptive
power,
the
inability of the state to vindicate its interests
would truly be an “untoward deprivation of the
historic right and obligation of the States to
maintain peace and order within their confines.
It would be in derogation of our federal system”.
Bartkus,
supra,
at
137
(Frankfurter,
J.).
Therefore, we cannot accept defendant’s proffered
alternative to the dual sovereignty doctrine
which would prohibit all successive prosecutions
by two sovereigns for the same act.
However, the interest of the Federal and
state governments in prosecuting a criminal act
frequently coincide.
When state and Federal
interests
do
coincide,
prosecution
by
one
sovereign will satisfy the need of the other.
[Id. (emphasis in original).]
Thus, the Cooper Court held “that Const 1963, art 1, § 15
prohibits a second prosecution for an offense arising out
of the same criminal act unless it appears from the record
that
the
interests
of
the
State
of
Michigan
and
the
officers, [may] be introduced in evidence against a
defendant over his timely objection in a federal criminal
trial.” 364 US at 208.
And the issue presented in Murphy
was “whether one jurisdiction within our federal structure
may compel a witness, whom it has immunized from
prosecution under its laws, to give testimony which might
then be used to convict him of a crime against another such
jurisdiction.” 378 US at 53.
9
jurisdiction which initially prosecuted are substantially
different.”
Id. at 461.
Justice
Kelly
in
dissent
makes
much
of
the
Cooper
Court’s statement that its decision rested on Michigan’s
Constitution.
Id.
at
461.
But
conclusion does not make it so.
simply
stating
this
A close examination of
Cooper reveals that it was not decided on the basis of
different language in our Constitution or on the basis of a
different history behind Michigan’s adoption of a double
jeopardy
bar.
Indeed,
no
analysis
was
made
at
all
regarding any of the text or history of art 1, § 15, and
apart
from
the
conclusory
statement
at
the
end
of
the
Cooper opinion that the decision was based on Michigan’s
double jeopardy provision, there is nothing in the opinion
actually linking this statement to the actual language or
history of Michigan’s double jeopardy provision.
Rather,
the case was decided as it was because the Cooper Court
simply
“trend”
questioned
in
United
Bartkus
States
and
mistakenly
Supreme
Court
perceived
law.14
a
Thus,
although the Cooper Court was wrong in its understanding of
federal
14
law,
it
did
look
to
federal
law
in
construing
Similarly, the dissent by Justice Kelly is based on
nothing more that its disagreement with the Bartkus
decision and its desire to substitute its own double
jeopardy policy for the double jeopardy analysis that the
language
and
history
of
Michigan’s
double
jeopardy
provision requires.
10
Michigan’s double jeopardy provision, just as the majority
does in this case.
Nine years after this Court’s decision in Cooper, the
United States Supreme Court decided Heath v Alabama,15 a
case that demonstrates that the Cooper Court was incorrect
about any “trend” narrowing the dual sovereignty doctrine
or the ability of states to prosecute successively.
In
Heath, the petitioner hired two men to kill his wife.
The
petitioner met the men in Georgia, just over the border
from his Alabama home, and led the men back to his home.
The men kidnapped the petitioner’s wife from the home; her
body was later found on the side of a road in Georgia.
The
petitioner pleaded guilty in Georgia to a murder charge in
exchange for a sentence of life imprisonment.
indicted
in
during
kidnapping,
a
Alabama
474 US at 83-86.
for
the
capital
convicted,
and
offense
of
murder
sentenced
to
death.
The petitioner asserted that the Alabama
prosecution constituted double jeopardy.
Supreme
Court
He was then
granted
certiorari
The United States
limited
to
the
double
jeopardy issue and “requested the parties to address the
question
of
the
applicability
of
the
dual
sovereignty
doctrine to successive prosecutions by two States.”
Id. at
87.
15
474 US 82; 106 S Ct 433; 88 L Ed 2d 387 (1985).
11
The Heath Court determined that the dual sovereignty
doctrine permitted successive prosecutions under the laws
of different states.
The Court explained:
The dual sovereignty doctrine, as originally
articulated and consistently applied by this
Court, compels the conclusion that successive
prosecutions by two States for the same conduct
are not barred by the Double Jeopardy Clause.
The dual sovereignty doctrine is founded on
the common-law conception of crime as an offense
against the sovereignty of the government.
When
a defendant in a single act violates the “peace
and dignity” of two sovereigns by breaking the
laws of each, he has committed two distinct
“offences.”
United States v. Lanza, 260 U.S.
377, 382 (1922). As the Court explained in Moore
v. Illinois, 14 How. 13, 19 (1852), “[an]
offense, in its legal signification, means the
transgression of a law.”
Consequently, when the
same act transgresses the laws of two sovereigns,
“it cannot be truly averred that the offender has
been twice punished for the same offense; but
only that by one act he has committed two
offenses, for each of which he is justly
punishable.” Id., at 20.
In applying the dual sovereignty doctrine,
then, the crucial determination is whether the
two entities that seek successively to prosecute
a defendant for the same course of conduct can be
termed separate sovereigns.
This determination
turns on whether the two entities draw their
authority to punish the offender from distinct
sources of power.
See, e.g., United States v.
Wheeler, 435 U.S. 313, 320 (1978); Waller v.
Florida, 397 U.S. 387, 393 (1970); Puerto Rico v.
Shell Co., 302 U.S. 253, 264-265 (1937); Lanza,
supra, at 382; Grafton v. United States, 206 U.S.
333, 354-355 (1907).
Thus, the Court has
uniformly held that the States are separate
sovereigns with respect to the Federal Government
because each State’s power to prosecute is
derived from its own “inherent sovereignty,” not
from the Federal Government.
Wheeler, supra, at
320, n. 14.
See Abbate v. United States, 359
12
U.S. 187, 193-194 (1959) (collecting cases);
Lanza, supra. As stated in Lanza, supra, at 382:
“Each government in determining what shall
be an offense against its peace and dignity is
exercising its own sovereignty, not that of the
other.
“It follows that an act denounced as a crime
by both national and state sovereignties is an
offense against the peace and dignity of both and
may be punished by each.”
See also Bartkus v. Illinois, 359 U.S. 121
(1959); Westfall v. United States, 274 U.S. 256,
258 (1927) (Holmes, J.)(the proposition that the
State and Federal Governments may punish the same
conduct
“is
too
plain
to
need
more
than
statement”).
The States are no less sovereign with
respect to each other than they are with respect
to the Federal Government.
Their powers to
undertake
criminal
prosecutions
derive
from
separate and independent sources of power and
authority originally belonging to them before
admission to the Union and preserved to them by
the Tenth Amendment. [Id. at 88-89.]
The Court further explained that in cases where it had
found the dual sovereignty doctrine inapplicable, it had
done
so
“because
the
two
prosecuting
entities
did
not
derive their powers to prosecute from independent sources
of authority.”
Id. at 90.
The Court explicitly rejected
the balancing of interests approach adopted by this Court
in Cooper.
Id. at 92-93.
The correctness of the Cooper decision, particularly
in light of the United States Supreme Court’s decision in
13
Heath, has already been questioned.
In People v Mezy,16
three justices17 stated that they would overrule Cooper and
hold that the double jeopardy provisions of the Michigan
Constitution and the United States Constitution did not bar
successive state and federal prosecutions.
453 Mich at
272.
The justices noted that the United States Supreme
Court
had
state
and
federal prosecutions did not violate double jeopardy.
Id.
at 278-280.
consistently
held
that
successive
Further, the justices noted that there was no
“‘compelling’” reason to afford greater protection under
the Michigan double jeopardy provision than the federal and
that the two provisions should be treated as “‘affording
the same protections.’”
Id. at 280-281, quoting People v
Perlos, 436 Mich 305, 313 n 7; 462 NW2d 310 (1990).18
Consistent
with
the
United
States
Supreme
Court
decision in Heath and with the reasoning of three justices
of this Court in Mezy, we now overrule People v Cooper.19
16
453 Mich 269; 551 NW2d 389 (1996).
17
The opinion was written by Justice Weaver and signed
by Justices Boyle and Riley.
18
The justices also noted that, contrary to the Cooper
Court’s decision, the majority of states hold that both the
United States Constitution and their constitutions allow
for dual prosecutions by the state and federal governments.
453 Mich at 281 n 14.
19
As recently noted, although we overrule precedent
with caution, the doctrine of stare decisis is not applied
14
As noted in Nutt, the common understanding of the people at
the time that our double jeopardy provision was ratified
was that the provision would be construed consistently with
the
federal
existed.
clearly
double
Applying
jeopardy
the
reaffirmed
in
jurisprudence
reasoning
Heath,
the
of
Bartkus,
entities
that
then
which
was
seeking
to
prosecute in this case—Kentucky and Michigan—are separate
sovereigns deriving their authority to punish from distinct
sources of power.
Therefore, the prosecution of defendant
in Michigan for the theft of the automobile is not barred
by double jeopardy.20
mechanically to prevent the Court from overruling previous
decisions that are erroneous.
We may overrule a prior
decision when we are certain that it was wrongly decided
and “‘less injury will result from overruling than from
following it.’” People v Moore, 470 Mich 56, 69 n 17; 679
NW2d 41 (2004), quoting McEvoy v Sault Ste Marie, 136 Mich
172, 178; 98 NW 1006 (1904).
The United States Supreme
Court decision in Heath clearly demonstrates that the
Cooper Court was wrong about any “trend” that it thought it
observed in United States Supreme Court case law concerning
dual sovereignty and double jeopardy. Further, the Cooper
Court failed to consider the language of our double
jeopardy
provision
or
its
historical
context.
Additionally, there are no relevant “reliance” interests
involved and therefore overruling Cooper would not produce
any “practical real-world dislocations.”
See Robinson v
Detroit,
462 Mich 439, 466; 613 NW2d 307 (2000).
Therefore, we overrule the erroneous decision made by the
Cooper Court.
20
Justice Kelly in asserts that by looking to federal
law to guide the interpretation of our double jeopardy
provision, we are somehow giving away the people’s
sovereignty. Post at 18. We disagree. Rather, it is the
dissent’s interpretation that would cede this state’s
sovereignty to another state by foreclosing prosecution in
15
The decision of the Court of Appeals affirming the
trial court’s order granting defendant’s motion to quash is
reversed and the case is remanded to the trial court for
proceedings consistent with this opinion.
Elizabeth A. Weaver
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Michigan, when there is no evidence in our constitutional
history that the people of Michigan sought, in adopting
Const 1963, art 1, § 15, to cede any of this state’s
sovereignty to the federal government or another state.
Any abrogation based on double jeopardy principles of
Michigan’s sovereign power to prosecute offenders is a
decision properly left to the people by amending the
Constitution, and not to this Court. Further, we note that
the
Michigan
Legislature
has
statutorily
forbidden
successive prosecutions only with regard to prosecutions
concerning illegal drugs.
MCL 333.7409 provides: “If a
violation of this article is a violation of a federal law
or the law of another state, a conviction or acquittal
under federal law or the law of another state for the same
act is a bar to prosecution in this state.”
16
S T A T E
M I C H I G A N
O F
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 125436
GEVON RAMON DAVIS,
Defendant-Appellee.
_______________________________
KELLY, J. (dissenting).
This
Court
has
granted
the
prosecutor’s
request
to
further weaken the Double Jeopardy Clause of the Michigan
Constitution.
the
state’s
The majority agrees with the prosecutor that
Double
Jeopardy
Clause
does
not
bar
this
Michigan prosecution, despite the fact that Kentucky has
already convicted defendant of the same crime.
Our decision in People v Cooper1 provides
I dissent.
the
appropriate
Michigan
protection
citizens
jurisdiction.
double
jeopardy
others
within
the
to
to
state’s
The majority decision presents yet another
instance
in
existing
precedent,
1
and
against
which
this
Court's
gives
it
majority
short
disagrees
shrift,
398 Mich 450; 247 NW2d 866 (1976).
and
with
changes
Michigan
law.
I
strongly
disagree
with
the
majority's
choice to overrule Cooper.
This case does not present one of those rare occasions
that requires reversing a previous decision of the Court.
I would affirm the ruling of the Court of Appeals and, in
doing so, I would follow this Court’s precedent in Cooper.
I. Facts and Status of the Case
Defendant
allegedly
stole
an
acquaintance’s
car
or
acquired it after someone else stole it in Michigan.
He
then drove the car to Kentucky, where he was arrested.
By
agreement with the Kentucky prosecutor, defendant pleaded
guilty of attempted theft by unlawful taking or disposition
of
property
valued
at
$300
or
more.
Ky
Rev
Stat
Ann
514.030.
Later, defendant was charged in Michigan for the same
car
theft.
driving
away
The
a
prosecutor
motor
vehicle
accused
him
(UDAA),
MCL
of
unlawfully
751.413,
and
receiving and concealing stolen property with a value of
$1,000 or more but less than $20,000.
On
defendant’s
motion,
the
trial
MCL 750.535(3)(a).
court
quashed
the
information and dismissed the charges on the basis that
they violated the Double Jeopardy Clause of the Michigan
Constitution.
Const 1963, art 1, § 15.
Appeals affirmed the decision.
2
The Court of
People v Davis, unpublished
opinion per curiam of the Court of Appeals, issued November
25, 2003 (Docket No. 242207).
II. Federal Double Jeopardy Jurisprudence
The United States Supreme Court determined in Bartkus
v
Illinois2
that
the
Fifth
Amendment's
Double
Jeopardy
Clause3 allows successive prosecutions by the federal and
state governments.
But Bartkus rests on a questionable foundation. The
opinion is premised on a concept of dual sovereignty that
the United States Supreme Court began to recognize in dicta
starting in the mid-nineteenth century.4
not applied at common law.
The doctrine was
It was first utilized by the
Court in 1922, in United States v Lanza, 260 US 377; 43 S
Ct 141; 67 L Ed 314 (1922).
2
359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959).
3
The relevant portion of the federal Double Jeopardy
Clause reads, "nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb
. . . ." US Const, Am V.
4
See Fox v Ohio, 46 US 410; 12 L Ed 213 (1847) (a
state may prosecute for passing false coin; the federal
government may prosecute for counterfeiting; the former is
a private wrong, while the latter is an offense directly
against the federal government); United States v Marigold,
50 US 560; 13 L Ed 257 (1850) (federal statute and federal
prosecution for uttering false coinage was constitutionally
permissible); Moore v Illinois, 55 US 13; 14 L Ed 306
(1852) (Illinois law and federal fugitive slave law
dissimilar
in
essential
purpose,
definition
of
the
offenses, and type of punishment each statute authorized).
3
In 1937, the United States Supreme Court held that the
Fourteenth
Amendment
Amendment's
Double
did
not
Jeopardy
incorporate
Clause
against
the
the
Fifth
states.
Palko v Connecticut, 302 US 319; 58 S Ct 149; 82 L Ed 288
(1937), overruled by Benton v Maryland, 395 US 784; 89 S Ct
2056; 23 L Ed 2d 707 (1969).
In several earlier cases, the
Court had allowed multiple state and federal prosecutions
for
the
same
offense.
It
had
permitted
the
federal
government to prosecute an offense for which a state court
had already obtained a conviction.
Lanza, supra at 382.
Later, it had allowed states and the federal government to
criminalize the same conduct.
Westfall v United States,
274 US 256, 258; 47 S Ct 629; 71 L Ed 1036 (1927).
Then,
in
1959,
the
United
States
Supreme
Court
in
Bartkus allowed a state prosecution to proceed after the
defendant had been acquitted of the charged offense in a
federal court. It found that the federal Double Jeopardy
Clause
did
not
prohibit
state
prosecutions
for
state
criminal offenses.
The reasoning of these cases was based on the argument
that
the
Fifth
inapplicable
to
Amendment’s
the
states.
Double
Indeed,
Jeopardy
this
was
Clause
was
explicitly
noted in Bartkus, in which Justice Frankfurter stated his
4
view that the Fourteenth Amendment did not apply the first
eight amendments to the states. Bartkus, supra at 124.
In 1969, the Supreme Court rejected the idea that the
Fifth Amendment did not apply to the states through the
Fourteenth Amendment.
In Benton v Maryland,5 the Court held
that the Fifth Amendment protection is “a fundamental ideal
in our constitutional heritage, and that it should apply to
the
States
through
supra at 794.
the
Fifth
the
Fourteenth
Amendment.”
Benton,
Because Bartkus was based on the belief that
Amendment
had
no
application
to
Benton undermined the reasoning of Bartkus.6
the
states,
See Smith v
United States, 423 US 1303, 1307; 96 S Ct 2; 46 L Ed 2d 9
(1975) (Douglas, Circuit Justice).
5
395 US 784; 89 S Ct 2056; 23 L Ed 2d 707 (1969).
6
At least one commentator has recognized the paradox
created by the dual sovereignty doctrine:
The doctrine of selective incorporation,
which makes the Double Jeopardy Clause applicable
to the states, . . . depends upon the rationale
that by enacting the Fourteenth Amendment the
states surrendered a part of their sovereignty to
the federal government. Yet, the dual sovereignty
doctrine maintains that both the states and the
federal government, bound by the same Double
Jeopardy
Clause
because
of
their
shared
sovereignty, are separate sovereigns for purposes
of assessing possible violations of the Clause.
See, e.g., Heath, 474 U.S. [82; 106 S Ct 433; 88
L Ed 2d 387 (1985)].
[McAninch, Unfolding the
law of double jeopardy, 44 SC L R 411, 425 n 104
(1993).]
5
The weak underpinnings of the Bartkus line of cases is
highlighted when one considers the common law on which our
system of constitutional jurisprudence is based. As Justice
Black noted in his vigorous Bartkus dissent, and as legal
scholars continue to note,7 the English common law did not
recognize the concept of dual sovereignty.
Justice Black pointed out that protection from double
jeopardy is part of the common law of nations.
Bartkus,
supra at 154 (Black, J., dissenting), citing Batchelder,
Former
Jeopardy,
17
Am
L
R
735
(1883).
In
fact,
international law recognizes that multiple prosecutions by
separate nations violate fundamental human rights.8
7
See, for example, Comment, The dual sovereignty
exception to double jeopardy: An unnecessary loophole, 24 U
Balt L R 177, 180 (1994), citing Comment, Successive
prosecution by state and federal governments for offenses
arising out of the same act, 44 Minn L R 534, 537 n 18
(1960); Harrison, Federalism and double jeopardy: A study
in the frustration of human rights, 17 U Miami L R 306
(1963); Grant, Successive prosecutions by state and nation:
Common law and british empire comparisons, 4 UCLA L R 1
(1956).
8
See, e.g., International Covenant on Civil and
Political Rights, art 14(7), 999 UNTS 171, 177 (1976).
A
nation may not extradite a person if doing so would expose
that person to subsequent prosecution for the same crime.
1 Restatement Foreign Relations Law of the United States,
3d, § 476(1)(b), p 566.
The protection from double
jeopardy has been a part of our western civilization since
at least Greek and Roman times and is a "'universal maxim
of common law.'"
Bartkus, supra at 151-153, (Black, J.,
6
Post-Bartkus
cases
also
raised
questions
regarding
whether the dual sovereignty doctrine on which Bartkus was
based would survive unscathed. For instance, in Elkins v
United
States,9
the
Court
rejected
the
dual
sovereignty
doctrine in the context of search and seizure.
There, the
Court held that where state authorities obtained evidence
during
a
search
that
would
have
violated
the
Fourth
Amendment, the evidence must be excluded at the federal
level.
Likewise,
in
Murphy
v
Waterfront
Comm
of
New
York
Harbor,10 the Court refused to apply the dual sovereignty
doctrine.
It held that a state may not constitutionally
compel a witness to testify when that testimony might be
used against him in a federal prosecution.
These decisions
rejecting the application of the dual sovereignty doctrine
in
other
contexts,
prompted
comment
Court.
The
doctrine
would
coupled
by
question
with
the
Benton
decision,
many
courts,
including
the
was
whether
the
sovereignty
continue
to
be
applied
dual
in
the
Cooper
double
jeopardy context.
dissenting), quoting 2 Cooley, Blackstone's Commentaries,
(4th ed, 1899), p 1481.
9
364 US 206; 80 S Ct 1437; 4 L Ed 2d 1669 (1960).
10
378 US 52; 84 S Ct 1594; 12 L Ed 2d 678 (1964).
7
More recently, though, the United States Supreme Court
has held that successive prosecutions by individual states
do
not
violate
the
Fifth
Amendment's
double
jeopardy
protection. Heath v Alabama, 474 US 82; 106 S Ct 433; 88 L
Ed 2d 387 (1985).
In Heath, the Supreme Court not only
resurrected the dual sovereignty doctrine, it extended the
doctrine to successive prosecutions by different states. No
matter
how
flawed
the
reasoning
Supreme Court has validated it.
of
Bartkus,
then,
the
It has verified that,
under current federal law, the dual sovereignty doctrine
allows for successive prosecutions when they are initiated
by different sovereigns.
This Court clearly does not have the power to overrule
United States Supreme Court precedent in interpreting the
Double Jeopardy Clause of the United States Constitution.
On the other hand, we are not bound to adopt that Court's
analysis of the federal constitution when we interpret the
Michigan
Constitution.
analysis is flawed.
similar
This
is
especially
true
when
the
While the Court's decision regarding a
constitutional
provision
provides
guidance,
the
rights of Michiganians are not tied to what the Court chose
to do with a federal constitutional provision.
Although
Cooper
on
the
the
Michigan
direction
Supreme
it
8
thought
Court
the
commented
United
in
States
Supreme Court was headed, it grounded its decision on an
interpretation
fitting.
of
the
Michigan
Constitution.
This
was
When determining the rights guaranteed to people
in Michigan under the Michigan Constitution, our Court is
not
bound
by
later
interpretations
given
the
federal
constitution by federal courts.
III. The Michigan Constitution
This
case
is
not
about
the
federal
constitution’s
Fifth Amendment double jeopardy protection. It is about the
double
jeopardy
Constitution
state.
to
protection
those
provided
within
the
by
the
jurisdiction
Michigan
of
this
The majority claims that it must determine whether
we "correctly applied the doctrine of dual sovereignty in
People v Cooper."
whether
the
Ante at 5.
Cooper
The appropriate question is
decision
correctly
interpreted
our
state's constitution. I assert that it did.
The Cooper Court rejected the United States Supreme
Court's
one-sided
view
of
dual
sovereignty.
The
current
majority suggests that the Cooper Court incorrectly applied
dual
sovereignty,
whereas
the
Cooper
Court
specifically
rejected it. Instead, it appropriately adopted a rule that
balances
the
rights
of
the
state
rights afforded to the accused.
9
with
the
fundamental
As Justice Denise Johnson of the Vermont Supreme Court
observed,
"[W]e
do
not
need
a
differences
with
the
justify
our
federal
Constitution.
The
unique
state
source
interpretation
concept
of
of
sovereignty
to
the
gives
state courts the right and the justification to disagree."
Woltson,
ed,
Protecting
Individual
Rights:
The
Role
of
State Constitutionalism, Report of the 1992 State Judges
Forum (1993), p 43, quoted in Shepard, The maturing nature
of state constitution jurisprudence, 30 Val U L Rev 421,
439 (1996).
[O]ur courts are not obligated to accept
what we deem to be a major contraction of citizen
protections under our constitution simply because
the United States Supreme Court has chosen to do
so. We are obligated to interpret our own organic
instrument of government. [Sitz v Dep't of State
Police, 443 Mich 744, 763; 506 NW2d 209 (1993).]
In
interpreting
the
Michigan
Constitution,
"'the
provisions for the protection of life, liberty and property
are to be largely and liberally construed in favor of the
citizen.'" Lockwood v Comm'r of Revenue, 357 Mich 517, 557;
98 NW2d 753 (1959), quoting United States ex rel Flannery v
Commanding Gen, Second Service Command, 69 F Supp 661, 665
(SD NY, 1946).
The
Double
Jeopardy
Clause
in
the
Michigan
Constitution currently reads, "No person shall be subject
for the same offense to be twice put in jeopardy." Const
10
1963, art 1, § 15. To determine the parameters of this
guarantee,
we
must
examine
the
history
of
our
state's
constitutional and common-law heritage.
Before
reaching
accepted
the
common law of England as part of its legal heritage.
The
common
of
the
time,
the
Law
and
law
province
was
of
applied
Upper
legislature
of
statehood,
when
Canada
Upper
in
Canada
Michigan
Michigan
1792.
was
At
repealed
part
that
Canadian
declared that "resort should be had to the laws of England
as the rule for the decision of [real property and civil
rights]."
1
viii (1871).
Michigan
Territorial
Laws,
Introduction,
p
Likewise, the Northwest Ordinance contained a
provision indicating that the territories should apply the
common law.
Northwest Ordinance of 1787, art II.11
When the territory that would become Michigan shifted
possession
from
England
to
the
new
United
States
of
America, the common law remained. "It is a principle of
universal jurisprudence that the laws, whether in writing
or evidenced by the usage and customs of a conquered or
ceded country, continue in force till altered by the new
sovereign. . . . All that occurred here was the mere change
of the sovereign power, which left all rights and laws as
11
The 1783 Treaty of Paris finalized the boundaries
between Canada and the United States.
11
they had been."
pp x-xi (1871).
1 Michigan Territorial Laws, Introduction,
Furthermore, in 1795 the Governor and
judges of the territory adopted an act declaring that the
common law of England was the applicable law.
Id. at xi-
xii.
The common law of England held that protection from
double
jeopardy
sovereigns.
The
extended
to
prosecutions
practice
in
Great
Britain
by
other
in
the
seventeenth and eighteenth centuries was that prosecution
by a different sovereign precluded England from retrying a
defendant. See State v Hogg, 118 NH 262, 265-266; 385 A2d
844 (1978).
Michigan adopted its first constitution in 1835. At
that time, its double jeopardy provision read, "No person
for the same offense, shall be twice put in jeopardy of
punishment." Const 1835, art 1, § 12. In 1850, the state
constitution was expanded and reworded to read, "No person
after acquittal upon the merits shall be tried for the same
offense."
Const
1850,
art
6,
§
29.
Constitutional
convention notes from 1850 suggest that the proponent of
12
this change considered it to be simply a clarification of
the provision's language.12
After the 1850 Constitution was ratified, the Michigan
Supreme Court had occasion to interpret this new language.
It
determined
that
the
phrase
"after
acquittal
on
the
merits" did not mean that jeopardy attached only after a
verdict was rendered. Writing for the Court, Justice COOLEY
stated:
The present Constitution of this State was
adopted in 1850, when all the tendencies of the
day were in the direction of enlarging individual
rights, giving new privileges, and imposing new
restrictions upon the powers of government in all
its departments. This is a fact of common
notoriety in this State; and the tendencies
referred to found expression in many of the
provisions of the Constitution. Many common-law
rights were enlarged, and given the benefit of
constitutional inviolability; and if any were
taken
away,
or
restricted
in
giving
new
privileges, it was only incidentally done in
making the general system more liberal, and, as
the people believed, more just. Such a thing as
narrowing the privileges of accused parties, as
they existed at the common law, was not thought
of; but, on the contrary, pains were taken to see
that they were all enumerated and made secure.
Some were added; and among other provisions
adopted for that purpose was the one now under
consideration. [People v Harding, 53 Mich 481,
485-486; 19 NW 155 (1884).]
12
"Mr. C. [Delegate Crary] said he considered the
language used in the section indefinite, and his amendment
merely
proposed
language
more
definite
and
better
understood." Report of the Proceedings and Debates in the
Convention to Revise the Constitution of the State of
Michigan, p 58 (1850).
13
The
Harding
Court,
therefore,
determined
that
the
language used in the 1850 Constitution was meant to expand
the
rights
our
state's
citizens
had
at
common
law.
At
common law, a person could be retried after an acquittal on
the
merits
if
the
first
court
lacked
jurisdiction.
The
language of the 1850 Constitution was intended to preclude
this "great hardship."
a
privilege
not
Id. at 486.
existing
at
the
"It was meant to give
common
law;
purpose to take away any which before existed."
it
had
no
Id.
A constitutional convention was next called in 1908,
but
that
jeopardy
convention
provision
constitutional
again
left
received
the
language
untouched.
convention,
attention.
the
The
of
double
double
the
During
the
1961
jeopardy
convention
provision
notes
suggest
that the delegates were concerned only with the issue of
when jeopardy attached.
The actual language of the state
constitution's double jeopardy provision indicated that the
protection did not attach until a verdict of acquittal had
been rendered.
had
determined
Yet, in Harding, the Michigan Supreme Court
that
jeopardy
rendering of a verdict.
14
attached
long
before
the
The
delegates'
discussion
revolved
solely
around
conforming the language regarding when jeopardy attached to
the interpretation the Michigan courts had given it:
Mr. Stevens: Mr. Chairman and delegates, the
original wording of this was: "No person, after
acquittal upon the merits, shall be tried for the
same offense." The Supreme Court of Michigan,
however, has virtually held that this means the
same thing as the provision in the federal
constitution,[13] which is what we have put in: "No
person shall be subject for the same offense to
be put twice in jeopardy."
It is true that in the opinion of some of
the jurists of the state this might make it a
little bit easier for the state to appeal in some
cases. Otherwise it makes no difference except it
brings the provision of the constitution more
clearly into the practice of this state. [1
Official Record, Constitutional Convention 1961,
p 539.]
And later, Delegate Stevens noted:
You would think from reading this, probably—
and that is a matter of clarification—a layman
might think that only after a person has been
acquitted on the merits has he been put in
jeopardy. That is not the fact under the
decisions of the Michigan supreme court. He is
better protected than that. There is nothing in
here that I believe can be construed to in any
way delete or reduce the rights of the defendant.
[1 Official Record, Constitutional Convention
1961, p 540.]
13
Interestingly, while this characterized the Michigan
provision as meaning "virtually . . . the same thing as the
provision in the federal constitution" with regard to when
jeopardy attached, the Harding Court made no reference to
the federal constitution. Its holding was grounded in our
state's unique constitutional history.
15
Reference
was
made
to
the
similarity
between
the
proposed provision and the language of the United States
Constitution,
which
we
the
delegates
propose
majority
of
is
state
noting
that
which
that
is
constitutions."
"[t]he
found
1
in
wording
the
Official
vast
Record,
Constitutional Convention 1961, p 540 (Delegate Danhof).
However, nothing suggests that they meant by the similarity
in wording that all aspects of the Double Jeopardy Clause
would be construed the same as other sovereigns’ clauses,
either then or afterward.
The
only
conforming
the
discussion
at
the
convention
language
of
Michigan's
centered
Double
on
Jeopardy
Clause to the interpretation Michigan courts had given to
that
language.
protection
delegates
authority
Silence
should
not
considered
regarding
regarding
be
construed
federal
the
other
case
meaning
of
to
law
our
aspects
mean
of
the
that
the
the
definitive
state
provision.
Rather, this silence should be taken to mean what it more
likely signifies:
a lack of consideration of any of the
aspects of double jeopardy protection beyond the question
of when jeopardy attaches.
This
specific
concern
was
carried
through
to
the
people when they voted on the new constitution. The Address
to the People contains the following language:
16
This is a revision of Sec. 14, Article II,
of the present constitution. The new language of
the first sentence involves the substitution of
the double jeopardy provision from the U.S.
Constitution in place of the present provision
which merely prohibits "acquittal on the merits."
This is more consistent with the actual practice
of the courts in Michigan. [Emphasis added.]
In
addition,
states,
were
the
preface
"Traditional
carefully
to
liberties
reviewed
and
the
and
Address
to
the
People
rights
of
the
people
changes
made
are
in
the
direction of clarifying and strengthening them." (Emphasis
added.)
Given the full history of our constitution, and the
history
of
the
1961
things are clear.
constitutional
convention,
several
First, the sole concern in revising the
Double Jeopardy Clause in our state constitution was to
clarify that jeopardy attaches when a jury is sworn, as our
courts had interpreted.
is
issued,
as
Constitution.
It does not attach when a verdict
appeared
Second,
from
the
the
language
language
of
regarding
the
the
1908
United
States Constitution in the Address to the People simply
informs us from where that language was derived.
The change in the Double Jeopardy Clause in the 1963
Constitution did not signal the people's intent to adopt
the
United
aspects
of
States
Supreme
double
jeopardy
Court's
interpretation
protection,
17
past
and
of
all
future.
Instead, the people intended to ratify what the Michigan
courts
had
already
held
with
regard
to
when
jeopardy
attaches.
Despite the history outlined above, the majority in
People v Nutt14 took this language to mean that the people
intended to adopt the federal interpretation of the Double
Jeopardy Clause.
United
States
It assumed that the people knew what the
Supreme
Court
had
interpreted
the
federal
Double Jeopardy Clause to mean, and that they agreed with
it.
It assumed that they were willing to accept all future
interpretations that the federal courts applied to it.
It
assumed that they willingly gave away their sovereignty as
a people and as a state by allowing the federal government
to interpret our constitution for us.
I cannot agree with all those assumptions.
presume
that
Michigan’s
the
Double
voters
of
Jeopardy
our
state
Clause
would
I do not
intended
be
that
interpreted
exactly as the federal provision is interpreted.
I
have
reviewed
our
common-law
history
before
we
became a state, our state's constitutional history, and the
language
in
the
Address
to
the
People.
It
has
become
obvious to me that the people intended that the language of
14
469 Mich 565; 677 NW2d 1 (2004).
18
the state Double Jeopardy Clause was intended to mean what
Michigan courts had said it means. See Harding, supra.
The holding in Cooper was grounded on the Michigan
Constitution.
This was specifically recognized in People v
Gay,15 in which the Cooper decision was reaffirmed and given
retroactive effect. As Justice Levin noted, Cooper was a
“reasoned and careful” analysis of the state constitution.
People
v
Mezy,
453
Mich
269,
299;
551
NW2d
389
(1996)
(Levin, J, dissenting).
Cooper
Unlike
protects
federal
the
rights
jurisprudence,
of
Michigan's
it
citizens.
requires
that
the
government balance those individual rights with the state's
interest in preserving the public peace and protecting the
public
safety.
Cooper
held
that
Michigan's
rights
as
a
sovereign were generally vindicated when a defendant was
brought to justice in another jurisdiction. But, it also
recognized
sovereign's
that
there
would
be
prosecution
would
not
times
when
validate
another
Michigan's
interests. In those rare cases, Cooper allowed a successive
prosecution:
Const 1963, art 1, § 15 prohibits a second
prosecution for an offense arising out of the
same criminal act unless it appears from the
record that the interests of the State of
15
407 Mich 681, 710-711; 289 NW2d 651 (1980).
19
Michigan and the jurisdiction which initially
prosecuted are substantially different. Analysis
on a case-by-case basis cannot be avoided.
[Cooper, supra at 461.]
The
balancing
test
of
Cooper
protects
a
person’s
rights "to avoid (1) continued embarrassment, expense and
ordeal; (2) being compelled to live in a continuing state
of anxiety and insecurity; and (3) the possibility that
even
though
innocent
he
may
be
found
guilty
through
repeated prosecutions." Cooper, supra at 460, citing United
States v Wilson, 420 US 332, 343; 95 S Ct 1013; 43 L Ed 2d
232 (1975), and Green v United States, 355 US 184, 187-188;
78 S Ct 221; 2 L Ed 2d 199 (1957).
The facts that a court should consider in applying the
Cooper balancing test include
whether the maximum penalties of the statutes
involved are greatly disparate, whether some
reason exists why one jurisdiction cannot be
entrusted
to
vindicate
fully
another
jurisdiction's
interests
in
securing
a
conviction, and whether the differences in the
statutes are merely jurisdictional or are more
substantive. [Cooper, supra at 461.]
The
Cooper
Court’s
rejection
of
the
dual
sovereignty
doctrine as a basis for allowing successive prosecutions,
without reference to the defendant's fundamental interest
in being free from double jeopardy, was unanimous.16
16
Justice Coleman concurred in the result, but
believed that Michigan should apply the “same-elements”
20
The
Cooper.
United
majority
uses
Heath
to
attack
the
holding
in
But Cooper does not rest on the decisions of the
States
constitution.
Supreme
It
rests
Court
on
the
interpreting
Michigan
the
federal
constitution.
It
depends on balancing the interest of the state in curbing
criminal
activity
with
the
within its jurisdiction.
liberty
interests
of
those
Gay, supra at 693-694.
As discussed, this is perfectly consistent with the
intent of the 1961 constitutional convention delegates and
with the intent of the people.
Given the rejection of the
Bartkus one-sided approach to dual sovereignty, later cases
such as Heath that apply the same one-sided approach have
no bearing on whether Cooper was correctly decided.
Cooper
rule
is
necessary
to
protect
the
The
individual's
interest, as well as the state's interest in rare cases
where the state’s interest is not vindicated by another
sovereign’s prosecution.
The defendant here is being forced to undergo multiple
ordeals when he should be able to rely on the finality of
his prosecution in Kentucky. He had an expectation that his
guilty
plea
in
Kentucky
would
end
governmental
action
test for determining when successive prosecutions are
brought for the same offense. Cooper, supra at 463 (COLEMAN,
J., concurring). In Gay, the Court unanimously agreed that
the
Cooper
decision
was
entitled
to
retroactive
application.
21
against him involving the car theft.
Instead, the Kentucky
guilty plea can now be used against him in the Michigan
proceeding.
activity
Defendant will again be punished for the same
for
which
he
has
already
been
punished
in
Kentucky.
Cooper specifically directs a case-by-case inquiry of
whether the state’s interests have been met.
at
461.
It
allows
successive
Cooper, supra
prosecutions
when
the
interests of the two states are substantially different.
The court considers the maximum penalties available, facts
indicating that the other jurisdiction cannot be trusted to
vindicate
fully
statutory
Michigan’s
differences
interests,
are
and
substantive
whether
or
the
"merely
jurisdictional." Id.
There is no evidence in the record before us that
Michigan’s interests have not been adequately protected by
the proceedings in Kentucky.
Defendant pleaded guilty in
Kentucky to attempted theft of property having a value of
more than $300.
Defendant
receiving
He was sentenced to one year’s probation.
is
stolen
charged
property
in
Michigan
worth
$1,000
with
or
UDAA
more.
and
These
crimes are felonies punishable by not more than five years’
imprisonment.
of
property
Similarly, the Kentucky statute makes theft
with
a
value
of
22
more
than
$300
a
felony
punishable by not more than five years’ imprisonment.
See
Ky Rev Stat Ann 514.030 and 532.020(1)(a).
To
conserve
trial
resources,
Michigan
prosecutors
frequently offer a "plea bargain" to a defendant to plead
guilty
to
a
lesser
offense.
The
Kentucky
prosecutor’s
willingness to offer defendant a plea to a lesser offense
cannot
be
said
to
undermine
our
state’s
interests.
Furthermore, the Michigan prosecutor in this case does not
argue that Michigan’s interests were compromised.
The facts of this case serve to show that Cooper is
not,
in
fact,
protected
by
unworkable.
each
The
state's
interests
law
are
sought
not
to
be
substantially
different. The interests of the state of Michigan are amply
protected, while the interests of the individual are not
ignored.
The
Double
Jeopardy
Clause
was
written
not
to
protect the state or federal government, but to protect the
individual.
To hold that Michigan will allow prosecution in our
state after a federal or sister state prosecution for the
identical
act
is
to
embrace
a
system
of
constitutional
duality.
It enables a state to pursue a person who either
has been found innocent or has paid the price for his crime
to
another
sovereignty.
To
harass
the
innocent,
the
acquitted, or the guilty person who has paid the price for
23
a
crime
in
money
or
freedom
is
not
constitutionally legitimate state action.
compatible
with
To the contrary,
it is at just such harassment that our state constitution
takes aim.
The policy that weakens double jeopardy protections is
not validated because both state and federal sovereignties
combine
to
embrace
it.
It
is
incongruous
to
allow
a
state’s basic constitutional policy, one integral to its
sovereignty,
to
be
frustrated
as
a
consequence
duality that allows that state to exist.
of
the
Furthermore, it
is inconsistent and ironic to use that federalism, which
has been justified in the name of protecting freedom, to
obliterate a fundamental right.
Rarely are Michigan's interests not vindicated after
one fair test of guilt.
not
served
subjected
in
to
jurisdiction.
the
Normally, the cause of justice is
second
jeopardy
for
pursuit
the
of
same
one
act
who
in
a
has
been
different
To hold otherwise is to require an accused
either to prove innocence twice or to pay twice for the
same offense.
The sole rationale for it is that the acts
complained of took place where two layers of government
coincide.
24
For almost thirty years, Cooper and its progeny have
protected citizens and others subject to the jurisdiction
of this state from the risk of
(1) continued embarrassment, expense and ordeal;
(2) being compelled to live in a continuing state
of
anxiety
and
insecurity;
and
(3)
the
possibility that even though innocent [we] may be
found
guilty
through
repeated
prosecutions.
[Gay, supra at 694, citing Wilson, supra at 343,
and Green, supra at 187-188.]
See also People v Herron, 464 Mich 593, 601; 628 NW2d 528
(2001).
Cooper
correctly
held
that
Michigan’s
Double
Jeopardy Clause protects us from multiple prosecutions for
the same crime.
state’s
That protection exists as long as the
interest
is
protected
by
a
prosecution
for
crime in another state or by the federal government.
the
The
Court in Cooper did not need to find a "different history
behind Michigan’s adoption of a double jeopardy bar"17 to
conclude that the Michigan Constitution protects us from
multiple prosecutions for a single crime.
As explained,
that protection has been a bedrock principle of our common
law for decades.
IV. Fourteenth Amendment Due Process
The
right
to
be
free
from
fundamental right
17
Ante at 7.
25
double
jeopardy
is
a
deeply ingrained in at least the Anglo-American
system of jurisprudence . . . . [T]he State with
all its resources and power should not be allowed
to
make
repeated
attempts
to
convict
an
individual
for
an
alleged
offense,
thereby
subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing
state of anxiety and insecurity, as well as
enhancing
the
possibility
that
even
though
innocent he may be found guilty. [Green, supra at
187-188.]
As Justice Black once observed, "double prosecutions for
the same offense are so contrary to the spirit of our free
country
that
Amendment."
they
violate
Bartkus,
even
supra
the
at
.
.
150-151
.
Fourteenth
(Black,
J.,
dissenting).
Justice Black recognized that, from an individual’s
perspective,
multiple
punishments
inflict
the
same
injustice whether levied by officers wearing one uniform or
several.
"In each case . . . [one] is forced to face
danger twice for the same conduct."
Bartkus, supra at 155
(Black, J., dissenting).
It
is
incompatible
with
fundamental
justice
that
a
person who has already faced trial in another court system
should again be exposed to jeopardy in Michigan's courts.
The dual threat from the single act is "repugnant to the
conscience of mankind."
See Palko, supra at 323.
If the
essence of due process, fairness, is to be recognized, one
of its features must be this guarantee:
26
a person may be
exposed to the gauntlet of criminal proceedings only once
for the same misconduct.
It does not matter to the individual that two separate
sovereigns
are
responsible
for
the
proceedings.
What
matters is that the government has resources and power the
individual does not.
Therefore, the government should not
be
allowed to make repeated attempts to convict an
individual
for
an
alleged
offense,
thereby
subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing
state of anxiety and insecurity, as well as
enhancing
the
possibility
that
even
though
innocent he may be found guilty. [Green, supra at
187-188.]
The Due Process Clause of the Fourteenth Amendment of
the United States Constitution requires a recognition that
subjecting an individual to a second trial violates the
fundamental
fairness
due
every
citizen
of
the
United
States.
V. The Doctrine of Stare Decisis
"[S]tare decisis 'promotes the evenhanded,
predictable, and consistent development of legal
principles,
fosters
reliance
on
judicial
decisions, and contributes to the actual and
perceived integrity of the judicial process.'"
[United States v Int'l Business Machines Corp,
517 US 843, 856; 116 S Ct 1793; 135 L Ed 2d 124,
(1996), quoting Payne v Tennessee, 501 US 808,
827; 111 S Ct 2597; 115 L Ed 2d 720 (1991). See
also People v Petit, 466 Mich 624, 633; 648 NW2d
193 (2002).]
27
To overturn a previous decision of this Court, we must be
convinced that it was wrongly decided.
In addition, we
must conclude that greater injury will result from adhering
to it than from correcting it.
Petit, supra at 634, citing
McEvoy v Sault Ste Marie, 136 Mich 172, 178; 98 NW 1006
(1904).
A departure from precedent must be based on a
"'"special justification."'"
Dickerson v United States,
530 US 428, 443; 120 S Ct 2326; 147 L Ed 2d 405 (2000),
quoting Int'l Business Machines Corp, supra at 856, quoting
Payne,
supra
at
842
(Souter,
J.,
concurring),
quoting
Arizona v Rumsey, 467 US 203, 212; 104 S Ct 2305; 81 L Ed
2d 164 (1984).
Nine years ago, Justice Weaver's lead opinion in Mezy
indicated a desire to overrule Cooper.
Her position did
not gain the support of a majority of the justices.
The
only change that could explain today’s decision to overrule
Cooper is the change in the make-up of this Court.
Justice
LEVIN'S criticism in Mezy18 of the lead opinion's desire to
overrule Cooper is just as applicable today as it was when
18
Because three justices indicated that they would
overrule Cooper even though reaching the issue was
unnecessary, three other justices explained why they would
not overrule the case. Justice Brickley simply indicated
that Cooper need not be addressed by the Court.
28
written.
There has been no intervening showing that Cooper
was clearly erroneous.
The
majority
claims
that
Cooper
is
bad
law.
Its
reason is that the Cooper Court did not apply the doctrine
of dual sovereignty as articulated by the United States
Supreme Court and that it misconstrued where the United
States Supreme Court was headed.
Yet, although Cooper alluded to the track the United
States Supreme Court appeared to be taking, it specifically
noted
that
its
Constitution.
decision
was
based
on
the
Michigan
This majority's constrictive reading of the
double jeopardy rights our constitution provides disagrees
with
the
Cooper
approach.
It
overrules
Cooper
without
showing in what respect the Cooper analysis of our state
Double Jeopardy Clause is wrong.
This lack of an explanation is understandable when one
considers that there is nothing unworkable about Cooper.
The
majority
overruling
asserts
Cooper
that
than
less
from
injury
allowing
will
it
to
result
stand.
from
I
believe that less injury will result only if one assumes
that everyone accused of a crime is guilty.
More injury
will result to those our criminal justice system has been
created
to
protect,
those
who
are
falsely
accused.
Hereafter, if one sovereign prosecutes and the accused is
29
found not guilty, the sovereign may work with Michigan to
achieve what it could not, secure conviction.
The
majority's
approach
ignores
the
fact
that,
by
overruling a dozen or more cases each term, it destablizies
our state's jurisprudence.
It suggests to the public that
the law is at the whim of whoever is sitting on the Supreme
Court bench. Surely, it erodes the public's confidence in
our judicial system.
Less harm would result from retaining
Cooper than from reversing it.
VI. Conclusion
Because
framework,
resolving
I
believe
based
double
on
that
Cooper
the
Michigan
jeopardy
provides
concerns,
the
correct
Constitution,
I
would
affirm
for
the
decision of the Court of Appeals.
I disagree with the majority that Cooper must fall.
The Cooper decision was not incorrect when it was decided
or
when
Court
its
in
holding
Gay.
It
was
is
unanimously
not
reaffirmed
incorrect
today.
by
this
Greater
injustices will come from its abandonment than from its
retention.
One cannot but wonder if this departure from precedent
will encourage the people of Michigan to "adjust themselves
to all other violations of the Bill of Rights should they
30
be
sanctioned
by
this
Court."
Bartkus,
supra
at
163
integrity
of
our
(Black, J., dissenting).
Overturning
justice system.
Cooper
strikes
at
the
It represents a greater threat to public
security than it does a protection from criminals.
decisions
in
Cooper
and
Gay
and
the
Court
decision in this case should be upheld.
Marilyn Kelly
31
of
The
Appeals
S T A T E
M I C H I G A N
O F
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 125436
GEVON RAMON DAVIS,
Defendant-Appellee.
_______________________________
CAVANAGH, J. (dissenting).
I concur with the result reached by Justice Kelly in
her
dissent.
I
also
fully
concur
with
the
reasoning
articulated in parts IV, Fourteenth Amendment Due Process,
and V, The Doctrine of Stare Decisis, of Justice Kelly’s
opinion.
Michael F. Cavanagh
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