Makowski v. Governor
299 Mich. App. 166
Mich. Ct. App.2012Background
- Plaintiff seeks declaratory judgment and injunction challenging former Governor Granholm's revocation of a purported commutation of his nonparolable life sentence.
- On Feb 2, 1989, plaintiff was sentenced to mandatory life without parole for first-degree murder and armed robbery.
- In Jan 2010, plaintiff applied for commutation to parolable life; May 2010 parole board gave a no-merit recommendation.
- Governor referred the matter to the Executive Clemency Advisory Council; after favorable recommendations, parole board again reviewed and recommended continued public hearing.
- Governor signed a commutation certificate; Dec 22, 2010 certificate delivered to Great Seal and forwarded to MDOC but not processed; objections arose.
- On Dec 27, 2010, Governor issued a directive to halt commutations and rescind certificates; Dec 29, 2010 the cert. was retrieved and destroyed; May 19, 2011 plaintiff filed suit; trial court dismissed for lack of jurisdiction; appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the case justiciable or a political question? | Plaintiff argues for judicial review of commutation power. | Defendants contend issue is nonjusticiable under separation of powers. | Nonjusticiable political question. |
| Did the Governor exceed constitutional power in revoking the commutation? | Plaintiff asserts final, irrevocable commutation existed. | Governor's power to commute is exclusive and not subject to judicial review. | Governor's actions are within exclusive executive power; no final, irrevocable act established. |
| Did plaintiff acquire a liberty interest requiring due process? | Plaintiff claims entitlement and due process protections. | No liberty interest because commutation statutes lack enforceable procedural rules. | No cognizable liberty interest; due process not triggered. |
Key Cases Cited
- Nixon v United States, 506 U.S. 224 (1993) (textual commitment of authority; political question considerations)
- Baker v Carr, 369 U.S. 186 (1962) (political question framework for justiciability)
- Kyser v Kasson Twp, 486 Mich 514 (2010) (separation of powers; executive authority under article five)
- National Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608 (2004) (nonjusticiability and separation of powers)
- In re Fraser Estate, 288 Mich 392 (1939) (court may recognize lack of jurisdiction)
- Johnson v Kramer Bros Freight Lines, Inc., 357 Mich 254 (1959) (judicial power does not legislate)
- Adair v Michigan, 486 Mich 468 (2010) (statutory interpretation and purpose questions)