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July 26, 2018

Michigan Supreme Court declares plea agreement provision barring pursuit of public office unenforceable as against public policy

A helpful reader alerted me to an interesting decision today by the Michigan Supreme Court in Michigan v. Smith, No. 156353 (Mich. July 26, 2018) (available here). Here is how the court's majority opinion gets started:

As part of defendant’s plea deal, he agreed to resign his position as a state senator and not seek public office during his five-year probationary term.  After reviewing the agreement, the trial court determined that these terms violated the separation-of-powers doctrine and public policy.  It struck down the terms but, over the prosecutor’s objection, enforced the rest of the plea deal.  The Court of Appeals affirmed.

We took this case to decide whether the resignation and bar-to-office provisions of the plea deal were enforceable, and if not, whether the trial court erred by refusing to allow the prosecutor to withdraw from the deal.  We hold that: (1) the question regarding the resignation provision is now moot and we therefore decline to reach it and instead vacate the Court of Appeals’ discussion of that issue, (2) the bar-to-office provision is unenforceable as against public policy, and (3) the trial court erred by not permitting the prosecutor to withdraw from the plea agreement under People v Siebert.  We would have further held that the validity of the bar-to-office provision must be assessed under the balancing test in Town of Newton v Rumery. [FN: Town of Newton v Rumery, 480 US 386; 107 S Ct 1187; 94 L Ed 2d 405 (1987). Because the partial concurrence did not join this portion of the opinion, adoption of the Rumery test failed to garner majority support.]

And here is a key passage in the court's discussion:

However egregious defendant’s alleged offenses may be, they do not directly relate to the duties and responsibilities of public office — he was not charged with misconduct that was in any manner related to public office. Consequently, the prosecutor can point to no legitimate reason for the bar-to-office provision.  Its inclusion in the plea agreement reflects, instead, the prosecutor’s own conclusion that defendant should not serve in public office.  Our laws do not give prosecutors the unilateral authority to make this determination.

July 26, 2018 at 08:29 PM | Permalink

Comments

In prior Comments, I suggested public, elected office was one of the few occupations still fully open to convicted felons. If a criminal record is preventing hiring, why not run for elected office? I suggest running for an office with jurisdiction over the little tyrants that put the felon in prison. Then, defund the agency, and get the jerks fired.

Posted by: David Behar | Jul 26, 2018 9:39:12 PM

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