Michigan Supreme Court Hears Arguments About Whether Prosecutor Can Use Voluntary Dismissals to Create Final Orders for Appellate Purposes.

On December 8, 2009, the Michigan Supreme Court will hear oral arguments in People v Richmond, Supreme Court No. 146648. The Supreme Court granted leave to the defense to determine whether a prosecutor who loses a pretrial ruling can create a final order by voluntarily dismissing the prosecution. Traditionally under Michigan law a party could not appeal a consent order. Recently, the prosecuted have done precisely this. The Supreme Court has granted leave to determine whether the State is exempt from this traditional limitation.

For the last twenty years, prosecutors were given the statutory right to appeal adverse rulings to the same extent as a defendant. Double jeopardy precluded them from appealing an acquittal, but in the pretrial context, they were given the right to appeal by leave (permission) to the Court of Appeals. Not content with having to seek permission, the State has recently engaged in a new gambit. They are dismissing the entire prosecution and appeal their voluntary dismissal.

Traditionally, a party cannot appeal a consent order of dismissal. The prosecution seems to be basing its argument on language in one Court of Appeals civil case. In
Dybata v Kistler, 140 Mich App 65, 68; 362 NW2d 891 (1985), the trial court excluded Plaintiff’s dispositive witness. Plaintiff then dismissed the suit stating that without the witness, it had no case. The Plaintiff then appealed the ruling to the Michigan Court of Appeals. The Defendant argued that the Court could not hear the case under this doctrine, the Court of Appeals disagreed stating:

"As a threshold matter, defendant argues that plaintiff cannot appeal from a stipulated order dismissing her claim. Although we agree with the proposition that one may not appeal from a consent judgment, order or decree, Dora v. Lesinski, 351 Mich. 579, 88 N.W.2d 592 (1958), we do not believe a dismissal expressly necessitated by and premised upon a dispositive evidentiary ruling is a 'consent' judgment or order. To require plaintiff to present proofs as a mere prelude to a certain directed verdict in order to preserve the issue would serve no one's interest. The question is properly before us."

Despite the language of
Dybata, the Court of Appeals refuses to allow parties to create final orders for appellate purposes through such tactics. When seven of eight counts of a civil suit are dismissed on summary disposition, the Michigan Court of Appeals will not permit the parties to voluntarily dismiss without prejudice the remaining counts. The dismissals in this case are not with prejudice. The State has failed to give the remaining assurance that it will not rebring the charges should they fail on appeal or if they find new evidence.

Last year, in
People v Richmond, 482 Mich 1041; 757 NW2d 118 (2008) (Kelly, J. dissenting), Justice Marilyn Kelly commented on this practice in her dissent from the denial of leave to appeal. She stated that the situation was not the same as in Dybata. Because the prosecution voluntarily dismissed the case, the case was moot. Even more surprising was the separate opinion of conservative Justice Stephan Markman. Justice Markman wrote: “"This Court cannot ignore its own precedent. The prosecutor's dismissal rendered this case moot, such that neither the Court of Appeals nor this Court any longer has jurisdiction to render a decision. Accordingly, I would vacate the Court of Appeals judgment and dismiss this case.” People v Richmond, 482 Mich 1041; 757 NW2d 118 (2008) (Markman, J. dissenting).