*1 69 1967] re COLACASIDES. Objective. Intent—Construction—Legislative 1. Statutes — meaning from the of a statute must be determined The intended thereof, language, extrinsic evidence statutory absent permissible given with most consistent that construction objectives sought the statute. Jury Term. 2. Grand Juror —Maximum Grand —One-Man juror officer, grand designated a one-man judicial to serve as No investigate allegations of crime do so for specified limiting thereby periods, 6-month more than 2 eonseCutive particular judge may exercise the extraor- time within 1961, 767.4). dinary powers of a (CLj3 § — — — Subsequent Restrictions Juror 3. Same One-Man Grand n Jury. Grand grand year upon inquiry a one-man of 1 The limitation allegations disqualification specific crime and juror into office than appointment or election other inquiry extending following over year termination of for a legislature’s 30'days of the extraordi- evidence awareness juror possessed by grand do not nary power one-man grand into the by another one-man inquiry foreclose ‘ beyond hence, a one-man activity year; criminal same subject investigated grand jury investigation of matter 767.3, (CL 1948, prior permissible § 767.4). 251; PA amended § Beferences for Points in Headnotes seq. Jur, et 50 Am Statutes § '1] ‘2, 3,15-17] Jury Jur, 24 Am Grand 13. § seq. Jur, et Jury Am Grand § A] Jury '5-13,18-20, Jur, 24 Am Grand 37. § testimony Privilege against as to before self-incrimination jury. 38ALB2d.225. Jur, Jury 24 Am 33. Grand [14] [21] 2d, Appeal 5 Am Jur and Error Jury Subsequent Grand 4. Same —One-Man Grand —Rec- Juror — Jury Secrecy. — ords Prior Grand grand juror, investigating speeified allega- subsequent A crime, may permitted properly be access tions of to the records *2 prior grand juror seope subsequent inquiry, aof within of by Supreme Court, subject order transferred to 1948, statutory secrecy provisions (CL 767.3, as amended § by 1965, 251; 1961, 767.4, No 767.6). PA CLS §§ Jury Contempt Jury 5. Grand —Prior Grand —One-Man —Immu- nity. of Conviction of for refusal witness to answer current juror’s grand questions predicated upon tangible one-man evi- initially by prior grand a juror, dence one-man obtained whose by Supreme ordered records were transferred Court to current held, grand juror, one-man not vulnerable to attack because prior been in by evidence had obtained the first instance juror, grand one-man where the current one-man granted immunity has subsequent the witness from all prosecution concerning offense responsive questions may answer to the tend to incriminate the witness (CL 767.3, 1948, by 1965, 251; as amended PA CLS § 767.4, 1961, 767.6). §§ Jury Witness—Immunity. 6. — Grand immunity witness, granted An order of accordance with grand jury statute, the one-man light must be read of interpreted as it by statute has been Supreme (CLS 1961, 767.6). § Witness—Scope Immunity 7. Same — of —Self-Incrimination. Immunity granted grand the State jury pro- one-man ceeding, valid, to be must accord immunity the witness as Pederal guarantees broad as both State constitutional of privilege against (US 5, Const, self-incrimination Ams 14; 1963, 17). Mich 1, Const art . § Witness—Scope Immunity Pendency 8. Same — of — of Prosecu- tion. juror’s grand grant A one-man prosecution from on grant crimes based answers obtained aas result of such prosecutions, including pending prosecution extends to all yet 1961, commenced, (CLS 767.6). but not tried § Witness—Scope Immunity Same — —Order. juror grand required A one-man is not to describe in his order granting immunity every proceeding covered 1961, (CLS 767.6), § Witness—Scope Immunity 10. Same — —License Forfeiture. against privilege The self-incrimination delimited recognized judicature revised aet is extending to answers expose any penalty tend to whieh will witness to or forfeiture subsequent prosecutions; as to criminal hence, as well immu- nity prosecution pursuant on conferred witness to one-man precludes jury statute forfeiture or revocation of alco- beverage gained holic license by grand on basis information testimony given after immunity (US Const, 5, 14; Ams 17; Const art 600.2154, 767.6). §§436.20, Witness—Scope Immunity 11. Same — —Order. scope immunity granted witness order one-man grand jury, and the applies, to whieh it of neces- sity are matters of construction to be determined controversy when arises immunity (CLS as to the extent of 767.6). Witness—Immunity—Order. 12. Same — granted immunity by Witness eompel testimony right does not have the to a demonstration *3 the grand jury subjective to his immunity satisfaction that extends specific proceeding being to a in then or to possible some proceeding (CLS in 1961, 600.2154). the future § Witness—Immunity—Order—Demonstration. 13. Same — grand juror One-man need do than no more in state written order * * * granting immunity granted “immunity that witness is subsequent prosecution from concerning all for offense any responsive questions may whieh answer to such have him,” being required tended to incriminate it not the subjective State demonstrate to the satisfaction of the witness immunity the proceeding offered extended to a specific being possible proceeding or (CLS then to a in the future 1961, 600.2154, 767.6). §§ Investigation — — 14. Law Constitutional of Executive Crime Function. Normally investigating the function of the crime occurrence of performed by government is part the executive branch of duty (Const of 1963, 3, its to enforce 2). the laws art § Investigation Agencies Compulsion 15. Same — Crime —Police — Testimony Immunity. — unwieldy The common-law and the is ineffective investigation especially organized gov- crime, crime 379 69. agencies police do corruption, possess not the ernmental extraordinary compel powers attendance witnesses eompel investigation testimony by and to their extending at an (Const 1963, prosecution 3, 2). art
them § op op Separation Powers —Conservator Peace— 16. Same — op Judges. Investigation Crime —Circuit peace possessed power at eommon law Conservators apprehending purpose offenders; investigate crime for possess .investigatory judges powers such now such circuit Constitution, and, therefore, the State under ex- conservators power as oné-man does not of sueh violate ercise separation powers provision on constitutional State 1963, 3, 2, 6,.§ 29). (Const art art § Judges Witnesses—Subpoena—Immu- Jury — 17. Grand —Circuit nity the Peace. —Conservator subpoena judges properly power can exereise the Circuit compel to witness order to power they and, peace, testimony, are also conservators of the since grand investigate they may as a one-man function violating separation powers activity criminal without (Const 1963, 2, 3, 6, provision of the Constitution art art § 767.6). 600.2154, 29; §§ Jury Witness—Immunity—Re- Contempt Grand — 18. —One-Man - fusal Answer Questions. punish a after he has power to witness been prosecution persists but granted immunity from in re- grand juror, questions by a one-man fusing does to answer juror exercising on depend whether the function, no bar since there is or executive constitutional an 767.6). (CLS imposing such stricture Jury. Same —One-Man Grand judge public other than Contempt conducted witness, granted him subpoenaed who following ques- to answer immunity, and continued refusal held, (Const contempt, proper him for responsively, cited tions 600.2154, 767.6). 3, 2, §'29; CLS 1963, art art §§ *4 § Immunity — — — Jury — Con- Witnesses Process 20. Grand Due tempt. held, process due denial not a of. One-man statute testify subpoenaed to are it concerns witnesses insofar as who n so for failure do subjected contempt proceedings and safeguards immunity, in view of the having granted been after through presence and witnesses assistance of afforded counsel examination, contempt during and conduct other judge, by investigative publie pro- a different limitation ceedings purpose specified scope inquiry, enforced testimony taken, secrecy, presence while privilege against with coextensive self-incrimina- tion, availability transcript and record for and relevant judicial proceeding (US Const, 4, 5, 6, appeal Ams or other 1, 600.2154, 1963, 17; 1961, 14; Const art CLS § §§ 767.4, 767.6; 1948, 767.3, 1965, CL as amended PA No § 251). Jury — (cid:127)— — Law Constitutional One-Man Grand Wit- 21. Costs Contempt. nesses — appeal adjudication allowed on from No eosts are questions put for failure to answer to him was grand jury having granted immunity, after been Const, 4, 5, 6, being (US constitutional issues involved Ams 1963, 3, 2, 6, 29; 1961, 14; art CLS 600- Mich Const art § §§ .2154, 767.4; 767.6; 1948, 767.3, 1965, as amended PA CL 251). No Separate Opinions. T. M. Kelly, Kavanagh, Adams, JJ. Jury Judge. Jury —
22. —One-Man Grand Grand grand jury proceeding judge who conducts a one-man acts A T>y (CL 1948, capacity §767.8, FA as amended 851; 1961, 767.4, 767.6). §§ (Charles), Appeal Wayne; Kaufman J. (Calendar No. 1967. Docket March Submitted April Rehearing 51,721.) 1967. No. Decided July May 21, amended 3, 1967. denied (Gus) convicted of con- Colacasides Costas questions tempt before a one- refusal to answer granted having immu- after been man Appeals nity. Upon denial of bail upon application pending appeal for leave to Supreme appeal granted that Court Court, to the therefrom ordered $50,000 in the amount bail appeal directly merits on the submitted on *5 Mich 69. Judgment of time schedule. on a curtailed briefs contempt affirmed. Kelley, Attorney A. Robert General,
Frank J. Derengoski, G. Robert General, and Solicitor people. Goussy, Attorney the General, for Assistant Barris, & for Louisell defendant. appeal an on This is JJ. O’Hara, Souris granted circuit court the
leave for pursuant this Court county, Appeals Wayne bypassing the to GCR contempt, by guilty
Appellant was found Wayne judge Kaufman, Charles Honorable circuit testify ain one-man refusal to for court, presided Honor- jury proceeding over Wayne judge George also Bowles, E. able circuit court. appellant Judge Kaufman sentenced in the Detroit house confinement months’ six expiration des- above until the correction, or grand jury, ignated purge time he should or until such answering contempt by such himself of pro- questions him in addressed ques- ceeding. Upon to answer the initial refusal his grant to do under ordered so was tions, juror. immunity by of im- subsequent prosecution munity for from all responsive concerning answer offense such ap- questions may incriminate tended to have pellant. contempt challenges
Appellant conviction his multiple grounds. that the He contends on contempt grand jury proceeding con- from which his prior illegal one- of a is an extension resulted viction one-year period grand jury beyond allowed man App Application (On Bail), Colacasides See In re re Court. juries convic- and that statute such also that the He contends therefore, void. tion, granted with his him is coextensive guaranteed against privilege self-incrimination Consti- Amendment to the United States Fifth *6 demon- the failed to furthermore, State tution; that, immunity extent of the to him the nature and strate contempt granted; conviction that, therefore, his juror’s questions grand refusing to answer the rights by guaranteed Fifth him violates his urges Finally, that his he Amendment. it arose out of
conviction is void because grand jury statute under our one-man conducted separation claims violates “the doctrine of which he presume powers”, by that it that it which we he means of § 3, 2, and, well, art as violates Const process Fourteenth the due clause violates Amendment to United Constitution. States put questions by grand all him the to “little black books” seized relate to so-called pur- appellant’s entries appellant restaurant-tavern. are handwriting ported be in money showing payments allegedly to Detroit police presumably as bribes to induce officers enforcing to de- law as refrain from officers to fendant. jury grand an not Bowles conclude that the
We jury; grand illegal preceding one-man extension appellant granted is as broad that the is guarantee required Fifth Amendment’s performed against that the self-incrimination; State obligation advising of its its stat- him; one-man that the our State Constitution’s either ute does violate powers provision separation Fourteenth or the there- process clause; that, due Amendment’s appellant’s contempt fore, conviction for refusal op the Court. questions grand juror’s must be af- answer the firmed.
I. Appellant contends that Bowles Grand Juror ex- permissible scope inquiry ceeded the of his when he put questions appellant relating to the “little previous black jury presided Piggins, seized books” over the Honorable S. Edward judges Wayne another circuit appellant’s court, and that refusal answer those questions, punishable therefore, was not conduct contempt. theory His is that the statute, CLS (Stat 28.911), imposes Ann 1951 Rev upon grand juror inquiry 12-month time limit into subject granted petition matter of for such inquiry subsequent grand juror and that no there- investigate subject after can the same matter. The pertinent portion PA cited added statute, *7 , reads follows: inquiry proceeding “No or hereunder shall con- longer by spe- tinue than 6 months unless extended judge cific order the said his or successor for an period additional not to exceed 6 months.” The record before us discloses that while Grand Piggins conducting inquiry Juror was his certain possession documents came into his on the basis person which this and another in- were conspiracy police dicted for to bribe a Detroit offi- Judge Piggins cer. served for two periods ending August six-month successive Shortly expiration Piggins before of the grand jury, judges Wayne the the circuit court granted petition by attorney general for an- Wayne county grand jury inquiry other and Judge September Bowles thereafter, on 8,1966,. designated colleagues was by to conduct it. On re Oolacasides. Court. Bowles’ this 6, 1967, upon Judge petition, January certain Judge Bowles ordered transferred Court which had Piggins grand jury, of the of the records clerk of this Court pursuant filed with the been (Stat 28.946[1]). Ann 1954 Rev § 767.6a CLS 1961, § full, forth, Our order of set January margin.2 1967, appellant subpoenaed Later January, was asked Grand Bowles and appear before Juror he-was to answer which questions his refusal contempt. cited convicted of and subsequently transferred questions related to certain documents from those our order to Bowles grand jury These with Piggins grand jury. us deposited upon documents were basis the evidentiary this “In the of grand considered, custody “The George Court jury records Matter of petition of E. authorizing petitioner or boxes 1 Bowles, the Petition George from the clerk Grand through 13 Juror E. Bowles, grand juror, for an order of of this member of Judge Edward having his staff to S. been Piggins take duly hereby Court is of this That the elerk Court, “It is Ordered Bowles, member George or a E. Juror to Grand to deliver directed Juror.George E. Bowles designated Grand therefor staff yn of his Piggins Edward S. records of the through 13 of the writing, boxes records; receipt for such take a grand jury and to -George E. Bowles Juror That Grand Ordered, “It is Purther doekets, journals, reporters' testimony, synopses of all obtain shall originals dupli- records, or exhibits, other transcripts, and all by notes, Piggins S. filed the Edward cates, not heretofore Michigan police State hands of the Court, in the whether with persons, person or other police department or Detroit (cid:127)or the receipt therefor inventory of same and an -and shall deliver Court; Supreme the clerk kept pos- be Ordered, That said records is Purther “It iu of this Court further order until the Juror Bowles of Grand session the same secrecy as subject conditions to the same manner and during acquired all records by grand other statute provided are course statute, they that, pursuant jury inquiry and *8 Michigan use for its lawful State of may, to the be made available arising out prosecutions other thereof grand jury. Piggins S. Edward Sgd. John R. Dethmers Chief Justice Dated; January 6, 1967” 379 Mich had been indicted Grand Juror Piggins police to bribe a officer. conspiracy Appellant not yet has been tried on this indictment. do accept appellant’s
We not as correct construc- tion above-quoted provision of the statute, is to that no say, juror may investigate subject matter of a prior one-man grand jury. The quoted added to language the statute PAby not 276, does indicate intrinsically leg- islature’s nor purpose, has our attention di- been rected to anything extrinsic of the amenda- statutory from tory language which we can discern that legislative purpose. We must determine legis- lature’s meaning the statutory language alone, therefore. While it be conceded that the lan- may is guage inconsistent with literally the construc- tion put upon appellant, is not only construction with consistent its nor terms, is it the construction we believe most consistent with the per- missible objectives sought to be achieved one- man grand law.
We construe the above-quoted statutory language to mean that no officer designated to serve to investigate specified onerman allegations of crime do so for more than two (cid:127)consecutive six-month periods. By provision this we believe the legislature manifested its intent limit the within particular judge could time exercise the- extraordinary powers of a grand juror. 'That a grand juror’s powers are extraordinary, a judicial officer, will be considered subsequently . opinion That the legislature was aware of the possible political consequences : power such manifest in that part CL 1948, 767.3, amended, PA 1965, No 251 (Stat Ann 1965 Cum Supp 28.943) quoted margin.3. perceive no rational leg- the. We 3 “Any judge, prosecuting attorney attorney, special prosecuting or attorney general or participating any inquiry this sec- .under *9 re Colacasiees. grand jury foreclosing purpose one-man islative activity beyond particular any inquiry criminal into perceive year, period a do rational but we tbe of one provision above-quoted purpose, by tbe manifested portion 1948, CL of 276, PA tbat 1951, from margin, quoted § limit in tbe to as 767.3, amended, by any particular judge year of to one tbe exercise by powers inquiry extraordinary authorized of tbe construed, our one-man law. Thus § limi- is a time 767.4 1961, time limitation CLS performing upon as duties tbe officer tation grand juror, a limitation not time a specific subject inquiry upon grand juror a into activity. would tbe statute construed, criminal So grand juror’s investigation preclude tbe not juror, investigated prior grand subject matter subject inquiry provided, is tbe course, tbat scope proper inquiry tbe second within the grand juror. affect tbe limitation as
Because we construe time grand inquiry, ing juror, an rather than tbe juror presented: may grand uti one other issue is grand predecessor produced by a tbe lize evidence juror? tbe so-called Pertinent to issue are provisions § secrecy as amended 1948, 767.3, CLof , (Stat 28.943) Supp § Ann 1965 Cum (Stat 28.944), § § Ann 1954Rev and CLS 767.4 (Stat pertinent 28.946), § § Ann 1954 tbe Rev provisions margin.4 are tbe of which italicized in lion held at more termined with his eounsel held. out the entitled disqualified requirements “Any person being right which continues more than than All matters to subject legal time final have eounsel year of the eounsel secrecy all called before the appointment or order of the from date of revealed to matters citation for inquiry. in section present involving delay relative to judge election termination in the room contempt. calendar attorney entered disqualification to part and he prior days shall The witness shall revelation shall at where the office shall to be shall such date.” inquiry, as de subject other than thereafter inquiry discuss all times not extend thereof inquiry to the with- fully have one be he 379 Mich Opinion op the Court. statutory provisions construe the italicized in We margin permit access one subject attorney punishment provided him shall malee testimony given by any except shall be taken or section 4. No witness judge.” (CL 1948, 767.3, presence in PA amended Supp Ann 28.943].) No 251 1965 Cum [Stat prosecutions against “Except perjury or in cases of *10 may judge conducting have been summoned the ivitnesses who such before inquiry, purpose determining testimony or the whether the of for judge a witness examined such is consistent with or of before different given by testimony any the such witness a court in sub before from sequent disciplinary against proceeding, attorneys or in cases action of State, any judge conducting inquiry, any and counselors in this such prosecuting attorney persons may and other who at the discretion judge inquiry, conducting such be admitted such to who shall while of inquiry judge while such services with such or in the services such or of after judge discontinued, publish shall have been utter or any pertaining any to statement or evidence involved information any inquiry, any im such or who shall disclose the indictment fact felony against any person a has been custody not in or found recognizance, any person under or who shall disclose that has been questioned or summoned in inquiry, connection with such or publish published any who shall disclose or pro or cause to be the of ceedings inquiry by issuing executing such otherwise than or of processes prior indictment, disclose, publish to such or shall or cause any comment, published opinion to be or thereto, conclusions related guilty punishable by shall county jail a imprisonment be misdemeanor. in the df year not more than 1 or a not less than $100.00 fine of $1,000.00, nor imprisonment more than or both such fine court, discretion the and such when public committed a of offense shall also Upon constitute the termina official tion malfeasance office. inquiry judge presentment such the shall malee no crime of if of wrongdoing any person persons or apprehension as to or whose or caused, may, removal he discretion, has not so he in his from office person may named, with the consent the who be with the cleric file county inquiry conducted, which such report has been a finding guilt any person persons no such criminal as to or involved in inquiry, otherwise, either as witness or whose involvement inquiry public.” such (CLS 1961, has become Ann [Stat 28.944].) Rev § “No upon inquiry witness shall required such be to answer questions, or shall contempt upon be convieted for so, refusal to do might when the' answers tend to incriminate him. A written order granting to such witness may such incrimination be judge pursuant 'entered said to a written prosecuting motion attorney duly or other representative authorized of the State in such proceeding; which order shall set forth verbatim questions which such. copy witness refused to A answer. true of such motion and order.-shall be delivered to such witness before he shall answer such ; questions. granting immunity The order so made shall thereafter questions exténd to all -related put thereafter be to such judge until such witness longer-applies. advises the witness that said no questions All-such and the answers thereto shall be writing '-reduced to judge under the direction co'py of such a true grand juror upon prior order records of subject secrecy provisions Court, but or which attach all information 1961, 767.4 CLS evidence grand juror’s coming to attention of a requiring predecessor inquiry. perceive no reason for We path to retrace considering availability juror, of the wit- and the desired evidence convenience nesses. foregoing or- this Court entered its basis,
theOn tangible January the basis 6, 1967.5 On der of initially by Piggins obtained evidence questions jury, certain Bowles asked Grand Juror notwithstanding the answer refused to appel- immunity granted him. conclude We for refusal answer lant’s conviction upon predicated attack because is not vulnerable by another first instance obtained evidence grand juror.
II.
A. argument appeal principal Appellant’s on this is immunity granted his answer- to induce him, that the questions put ing not with to coextensive him, is Consti- Fifth Amendment to United States to such witness if rectly may nity beyond secrecy provided such that the witness or such of after transcript.” such witness should such See shall extend inquiry. have motion, be or footnote transcript, prosecuted indirectly growing tended particular questions order and as soon (CLS beyond for to incriminate person required to supra. duly for he in transcript thereafter as privileged section any certified practicable scope out of offense S him. set forth hereof so to disclose he [Stat answer any testimony delivered such concerning prosecuted such thereafter. No such order shall Ann inquiry, in such judge, any to such apply questions same which for such nor shall Rev given hy to granting any to his witness shall motion, provisions such answers all be delivered 28.946].) shall offense copies attorney him extend except immu there order for di in thk Court. therefore, he could not be convicted and tution, invoking legally Fifth for Amend- privilege against He in- self-incrimination. ment’s immunity granted was not coextensive that the sists privilege Amendment because it failed with his Fifth prosecu- specify extended to a that this to tion pending presently court recorder’s prosecution charge possible city on a to of Detroit; theretofore dismissed on which preliminary and as to which he was examination, jeopardy; possible pro- in and to forfeiture ceedings revoking at restaurant and al- aimed prosecutions beverage in coholic recorder’s court are licenses. The conspiracy bribe city bribery police of Detroit officers. immunity granted by Grand
The order Juror pertinent part, follows: reads, Bowles that said Gus Cola- “It therefore Ordered hereby forthwith be and he is directed to oasides questions responsively all answer said related questions put may hereafter be wit- which said with this court ness, and, accordance said statute, hereby does to said Gus Cola- subsequent prosecution any from all of- oasides concerning responsive fense answer questions may such him.” have incriminate tended Appellant argues phrase “subsequent prosecution” scope is too narrow in view of the rights granted by the self-incrimination the State6 people and Federal counter Constitution. The arguing (1940), that In Watson 293 Mich re paralleling case, case with facts this Colacasides ness without due porations shaJl the course of “No not against himself, person l?e infringed.” process legislative voluntary shall be nor law. The Const compelled associations and executive be deprived right art to fair and investigations § criminal all life, 17, individuals, liberty just ease to be a wit- treatment or firms, property, *12 hearings. cor- grant validity in favor of the issue the settles immunity. language Looking order, one notes immunity granted “in accordance with said earlier in the was de- The statute order statute.” pro- case made and “the such scribed as statute (Stat Ann means which vided”, supra, margin, 28.946), set forth in the Rev pp at validity challenge
Appellant of sec- does upon immunity rather, his attack is 767.6; tion statutory pro- pursuant to the was issued order that must read however, be order, vision. That light interpreted turn, it, of the statute as supra. Watson, this Court language in find- used Watson, the broad provision ing con- (p 277): stitutional. the Court Said large is a re- from crime “The public acting sponsibility. legislature, suppression crime, for the detection and interest has lodged extraordinary power in the discre- magistrate, immunity granted ex- and the tion any prosecution by any of- tends to for State may the answers fenses he disclosed testimony offenses to which such witness or may lead.” 276): (p
Earlier the Court had said prosecuted shall “The witness not ‘thereafter he concerning offense answers such him’; have tended to and we construe incriminate protection against prosecution statute to afford provision the securing State as broad the Constitutional privilege against self-incrimination.” (Emphasis added.) *13 379 Mich op Opinion the Court. immunity
Although, present statute differs quoted present Watson, from the one statute parallel language: contains person required questions “No to answer such prosecuted shall thereafter be con- offense cerning which such in- answers have tended to him.” criminate gives
Watson, then, as broad scope against privilege as the Federal self- Malloy Hogan (1964), incrimination. See v. 378US (84 653). L S Ct 1489,12 ed 2d conclude that We following Malloy, principle statement, from is a binding upon (p 8) of law : us against “The Fourteenth Amendment secures privilege State invasion the same the Fifth against guarantees infringe- Amendment Federal right person ment—the of a to remain silent unless speak he chooses to in the unfettered exercise of his penalty, Twining (29 own and to suffer no will, as held [Twining (1908), Jersey v. New 78US S Ct 97)] 14, 53 L ed for such silence.” Michigan’s gives immunity and that Watson statute scope Malloy requires. as broad as the decision being we Watson, Thus “judicial conclude relic”, instead appellant contends, construes section 767.6 to be consistent with our Federal and requirements. immunity State constitutional The explicitly says order is in ac- cordance with the statute, and the statute, as inter- preted by gives Watson, coextensive with privilege. The statute, and the order issued constitutionally thereunder, are thus valid. We only privilege need determine whether the and, thus, granted immunity apply preclude use sought pro- evidence from in criminal ceedings pending subsequent now and in license proceedings. forfeiture Colacasiües. application specific to the has Case Watson
The in that case prosecution, for the defendant pending criminal case already in a when a defendant called testimony. upon Wat- him 1910), (CA Kittle In re referred the Court son “properly announces a case F Judge language following Learned rule.” Hand’s supports opinion our conclusion in Kittle *14 appellant by testimony the taken from that juror pending prosecution the used in not be (p 947): inquiry .subject the is
“I assume that shall laid crime, and, indeed, the crime matter of some questioned, existing the so indictment. When * * * given, when And, witness must answer. protect him from further answer will thereafter good very pend prosecution. It be bar to this will a subject prosecution, pertinent ing it to the mat be if (Emphasis added.) ter.” adopted foregoing decision lan- The Watson application present guage own, as its and its to the by means that situation matter obtained by not or a be usable—either itself would prosecution. pending Appellant’s lead—in the fears concerning pending against him thus are case they on unfounded—at insofar are based least requested. information the has by applied express to Case, terms, The Watson its prosecution pending against the defendant Wat- obligated son. do not we to antic- We believe are ipate judge prosecution pending will that the incorrectly apply we decline case, the law of that immunity, grand juror, granting The do so. every proceeding required is list covered not immunity.for the rather obvious reason apply Case, terms, their the Watsón statute and indirectly directly any prosecution offense, .or 379 Mich growing any given testimony out of him. The prosecution appellant complains is not grant “pending.” covered is “pending” place. it Since is not has taken Since place it quent” nothing has not taken it can be but “subse- grand juror. to the before the The extended to it. question
The next that of is the use of the com- pelled any possible answers in future license forfei- proceedings. following language ture revised judicature upon presumably act, based privileges against Federal and State self-incrimina- point: tion, “Any competent witness in a cause shall be question answering excused relevant to the ground merely
matter in on the issue, that the an- question may establish, swer to such or tend to es- tablish, that such owes or is debt, witness other- subject provision wise to a suit; civil but this shall require give any not be construed to witness to tendency answer which will have a to accuse himself expose crime or or misdemeanor, him to any penalty respect vary or forfeiture, nor *15 respecting or alter other rule the examination (Stat of witnesses.” Ann 1962 27A.2154). §Rev legislature’s understanding This states the statute scope privilege against self-incrimina- Although may tion. the statute not be all-inclusive, according expressly to constitutional standards, prohibits being exposed a witness from to a forfei- required give testimony. ture if he is We draw provision: two conclusions first, that imposed license forfeiture not be because of testimony testimony appellant or leads from such if required testify despite his assertion of the privilege against self-incrimination ,(cid:127) and, second, immunity granted that the under section 767.6must 87 Opinion op the Court. judicature provision, be at least as broad act precluding a thus munity forfeiture of license after im- granted, is,
has been that a forfeiture or- solely dered on basis of information or leads gained by grant after such of im- munity.
B. aspect appellant’s immunity argument Another our merits ness attention. He claims before a wit- granted immunity who has been can be con- contempt questions victed for refusal to answer put apprised him, he must be of “the nature and immunity.” proposition ap- extent said For this pellant upon Raley (1959), v. relies Ohio US (79 1344), Ct L3 S ed 2d and Stevens v. Marks (1966), (86 724). L US S Ct 2d ed He concludes that because he was not advised immunity whether the ex- currently pending prosecution tended to the criminal against beverage him and to alcoholic license for- proceedings, contempt feiture conviction was in- valid. Raley proposi-
Neither nor Stevens stands appellant Raley, tion for which cites them. In legislative hearing not witnesses were advised at a granted immunity. that a State statute them In investigators Stevens, tried to hold the witness immunity. Supreme a waiver of In both cases the convictions, because, reversed appellant asserts, the witnesses were not advised granted of “the nature extent” of the them but, rather, because the witnesses were left they doubt as to whether had what- soever. Colacasides, case of on other orally only hand, was not advised he *16 granted pursuant immunity was but, well, 379 copy requirement,7 granting statutory of the order appellant
immunity given who, all at times, was appellant represented Nor does counsel. was grant immunity. deny advised he that was point that the failed His on this exactly attack scope specify within the what lies to immunity granted. he Furthermore, claims that requirements not met our determina- are Federal scope immunity granted but, tion now the instead, scope have, been “demon- should that its at the time of himto strated” the immunity. grant of authority proposition he on relies
As language following in footnote 11 in Stevens: suggestion remand the case that we should “The finding of whether or York to the New not courts petitioner think, wide is, was we misled affirmatively mark. A must demonstrate State the witness that is his prosecution valid him in for re- hold before questions fusing that would otherwise be to answer incriminating. has its the State met bur- Whether alleged at the time of the den must be measured contempt. A that there was a valid im- declaration munity appeal would for the first time on uttered late.” come too Stevens. course think misreads Of
We at the must be measured time the “burden” alleged contempt. But the “burden” United Supreme to in Stevens was Court alluded States made, fact whether scope, spe- legal of its nor not the construction applied. were which it These cific things necessity the nature and of remain, We do construction. to matters be, have supra. (Stat Ann Rev 28.946), see footnote *17 Í96?j ín re Oolacasídés. Cotjkt. grand jury interpret that a wit- to mean Stevens
not ness can vitiate immunity express terms of the subjective provision declaration the statute juror grand to his “demonstrate” did not that the to offered extended that the satisfaction a pos- being proceeding specific or to some then in argument, proceeding while future. The sible by.the language supported relied ingenious, is not requires Raley upon. more nor Neither Stevens merely that the than done was here— immunity if the existence the witness of advise immunity granted. inbe, fact,
III. Finally, appellant’s that to contentions come we law violates the State’s separation powers doctrine, as set forth Const process clause of art and the due Amendment. Fourteenth
A. normally country the function of not In this is investigate judge of crime. That occurrence a function
normally performed by the executive is duty government part to enforce of its branch of Experience however, demonstrated, laws. has .the agencies regularly constituted law enforcement lawfully effectively to en and are unable sometimes corrupt respect particularly with laws, force the conspiratorial government and conduct officersof continuing organized activity on an and criminal experience also has demonstrated basis. Our unwieldy grand jury and 23-man the common-law investigation in a crimes of such for the ineffective society.8 It has mobile industrialized, and modern, tating Even criticism. in 1850 the common-law See Constitutional grand jury Convention subjected Debates, to devas 1850, re Mich 69. Opinion of the Court. government corruption in also that
demonstrated discovery susceptible organized are crime body power investigative prosecution has the if testify by participants compel therein to some by subpoena enforcing granting witnesses attendance police prosecution, but possess country such ex- agencies in this do power. traordinary The ineffectiveness and absent the considered, common-law testimony, agencies police lawfully compel power *18 society’s safety, frequently, in too thwarted are activity. investigate such criminal their efforts country, extraordinary Traditionally such in this judicial only power officers. entrusted has been authority therefor, es- such constitutional Absent validly power granted judicial sentially cannot be violating separation police agencies the without powers provision of our Constitution. Const of 1963, § 2. 3,
art by been resolved in this This dilemma has State unique comprised grand jury, of a one-man its judicial properly the who can exercise sub-
officer poena power power the testimony. Appellant, compel however, in order to contends that judicial perform officer cannot also investigative violating separa- without duties § powers 3, 1963, art tion mandate of Const provision, contains a however, That constitutional expressly provided significant exception, “except § 6, In article we find 29,10 Constitution.” McLeod marks common-law has Ann 1954 Rev §§ legislative, except one branch shall exercise [9] “The perpetuated “Justices (pp 197-201). expressly powers Delegates executive and grand jury provided in 28.947-28.965].) Sullivan institution. government supreme was deleted powers properly belonging to another branch judicial. constitutional this Constitution.” (pp 54, court, are divided into three (CL judges 55), 1850, 1948, person Pierce language concerning although §§ the court of exercising 767.7-767.25 (pp 55, legislature powers branches; 56) and appeals, [Stat tho judges judicial among that circuit are those officers granted powers peace. conservators peace possessed powers If conservators judges now exercised circuit as one-man jurors, judicial whether in nature, executive or powers 3, exercise of such would not article violate they § 2, either because are in nature or they expressly because, if executive, are authorized exception § article 6, and, thus, within the stated in article 2. find, for reasons to be We peace stated, conservators of at common possessed power investigate law crime purpose apprehending offenders. hold, We judges possess therefore, that circuit now such in- vestigative power, peace, as conservators of the power performance and their exercise of such grand jurors one-man of duties as does not violate Const art power
The nature of the conservator’s was con- Slattery (1945), sidered this Court in In re challenge another unsuccessful to the constitutionality of our law. years (1939), A few earlier, In re Sanderson *19 develop- Mich 165, the Court traced historical peace ment of the officeof conservator of the origin England merger its in to its ultimate justice peace. office of the Little more need be Slattery added to what was written in and Sander- support son in of the reached, conclusions we have conclusions which are consistent with those to be in found two those cases.
Taswell-Langmead’s English Constitutional His- tory (11th Plucknett), ed, Theodore F. T. sum- development: marizes this historical judges judges hy provided circuit and other law shall he con- peaee respective jurisdictions.” servators of the within their 379 Mich peace. appointment In the “Conservators may probably knights be of discerned to receive the oaths germ conservator, of the office peace. justice, were
later pads Custodes assigned from 1285 and and closely with the enforcement of were associated appear They to of afterwards by Statute Winchester. occasionally chosen the landholders have been appointed county, finally to their office but were royal by function Their constant writ or commission. and was to of felonies take indictments until trial and to hold accused misdemeanours, judges. by royal from 1350 1332, 1338, pris they given powers try were their permanent Their and this in 1368. oners, became supervising early functions of the militia were soon array, separate but transferred commissions frequently they after with the Black Death dealt price-control legislation. new labour and the local courts paled them, before the sheriff became (where many parliament servant, their J.P.s constantly Commons) sat the House confided (p 126.) important new and tasks to them.” county principal organ government] [of “The justices peace. fact come to be the Their had history already early mentioned; been as time has immensely went on their were duties increased only sphere statute, of criminal adminis- poor general tration but also in that of law and local legisla- government. A vast and confused mass of analysis very tion which defies conferred wide powers.” (pp 686.) miscellaneous jurisdic- discussing criminal historian, Another reports England, tion in these conclusions about the justice peace: officeof justice remedy in the officeof “The found twelfth-century peace. This office has late important steps origins, were taken in the but the century. provided A statute fourteenth peace ‘worthy’ appointed keep the men were to be *20 re felonies. Further hear and determine statutes and they to hold their four enacted that were sessions worthy year. these these times a men were more tices Before statutes of peace jus- than conservators hearing determining duty ; the and felonies ‘justices peace’, simply them or more made * * * ‘justices’. . powers justices “The were extended somewhat century, greatly in the fifteenth increased * * * century. Thirdly, justices sixteenth preliminary inquiries were instructed to hold into allegations assizes or of might of crime that lead to trial at quarter sessions. This.was in the nature police powers ‘getting up’ really case, in a judicial activity only a-society suitable that adequate police an lacked force. No substantial change century.” place took until the middle of the nineteenth Machinery England, Justice (4th 1964), pp it. M. LLD Ed at Jackson, 92, 93. History weight reasoning to the adds of Justice Slattery. opinion . Conservators Butzel’s peace, historically, empowered were in- to make vestigations “get up” judges, a case. Circuit possessing powers by the conservator’s virtue sep- article no therefore, do violence to our powers aration of doctrine, 3, 2, article exer- cising powers investigation such as one-man grand jurors. recognize Slattery
While we that in this Court judge conducting said that a a one-man proceeding judicial capacity, acts in 310 Mich at necessary 467, we do not believe it to re-examine question in this case. mention the matter We only appellant citing any because asserts, without supporting authority, grand jury if judicial, are not cannot be held con- tempt. judge capacity Whether a circuit acts capacity juror, or in an executive there legislature’s is no constitutional bar *21 Mich 69. 379 op Opinion the Court. that a witness
providing ours has, law, questions himof asked fails to answer who contempt proceed- contempt, punished the be judge public by ings in another to be conducted juror. procedure grand cus- Such the by contempt proc- enforcing tomarily in is followed obey made lawful orders of disclosure ess refusals government. by agencies executive branch the Company v. Securities See Penfield California (67 Exchange (1947), 330 US Commission 1117). 91 L Interstate Com- See, also, S Ct ed (1894), Brimson 154 US merce Commission v. 485, (14 1047). 38 L ed Ct S conven- debates the recent constitutional The produced tion which our Constitution of dis- omitting delegates that the considered from close new all reference to the conserva- the Constitution peace. judiciary Indeed, tors of the the convention’s brought so it was recommended, committee to the but when delegates’ attention that omission debate judges powers might of the of conservator’s adversely validity grand affect the our one-man jury delegates the law, voted to include their proposal language appears final now the which 1963, art record of the Const The official reports following in- convention’s the troductory proposal on comment the “conservator” judiciary the chairman of the convention’s com- : mittee of the President,
“Mr. Danhok: Mr. members we had an exclusion back, time convention, some report provision the 1908 Consti- strike the Supreme judges, tution made justices peace judges of the con- circuit and the juris- respective peace within their servators diction. might I at the time we considered state attorneys nor circuit matter, none of par- serving my judges on committee could see advantage nor research section, did ticular indicate re- reason that it be there was advisory governor’s like- committee tained. we But received its removal. recommended wise letter Joseph Judge Sul- Circuit from Detroit brought our attention one-man case he livan which involving jury validity grand particular Michigan.11 system In this in the State validity question the one- on case, writing man majority ference between and Justice of the Butzel, pointed opinion court, out dif- Michigan and the York, and New *22 why Michigan a sustain one-man could reason why system jury And one York could not. New to con- which referred of the items Justice Butzel opinion pages stantly that circuit authorized to be conservators the fact in was about judges by were of 1908 the Constitution peace and of the that sitting a their duties functions particular Now, the within this section. would be part is that of it that he went on to state even odd sitting spite provision, that this he did not feel nonjudicial grand jury a function. as a one-man was going mem- it with Mr. Joiner and other and But over talking Ford, Mr. staff, with we bers of the not en- came to danger conclusion: that we should this grand jury system; it the one-man that if it abolished abolished, be should be is body agency created the one-man system, grand jury namely, legislature, and that we not be worried if Justice Butzel had not would spent approximately pages opinion pointing- grand jury Michigan out that have one-man could system York we while New could not because had making provision judges conservators this peace. slightly “Now, have it we amended read Su- preme Appeals judges Court, and circuit judges provided by and other that law, so 11 re 310Mich Slattery (1945) 379 Mich Opinion op ti-ie Court.
legislature, deems, if its wisdom, to have the judges jurisdiction courts limited be con- peace, it can servators considered so do. The committee brought at the time it was people. before the committee. hadWe about 14 got 10 We in favor. votes Eleven are needed on a proposal. get I committee did not the 11. However, joined Mr. Ford was absent. He with me in this particular urge adop- amendment. We would tion thereof.” Constitutional Convention 1961 p Record, 2703.
In addition to the chairman of the convention’s judiciary expressed others committee, the view that if system the State’s one-man were changed, accomplished by be it should be legis- approved lature. The convention then the “con- margin. servator” Shortly clause 58-55 after- delegate specifically proposed ward, a clause to be judiciary, added to provide the article on the as follows: grand juries
“One-man hereby are abolished.” proposal The 73-32. defeated, 2 Constitutional pp Convention 1961, Record, 2709, 2710. significance place upon foregoing we ac- tions of the constitutional convention *23 delegates correctly regarded the “conservator” important clause validity to the constitutional of our grand jury one-man law. the When convention and, people approved thereafter, the of this State the document that towas become the Constitution of including “separation 1963, both powers” the of (article 2) clause 3, and the “conservator” clause (article § 29), they legal 6, declared effect that a judge exercising powers the of a conservator of the peace thereby violating was separation of powers clause. 97
B. Rutledge’s upon generally Relying Mr. Justice (1949), opinion concurring 333 US re Oliver 682), (68 our invites L ed 499, 92 257 S Ct constitutionality of Michi- of the reconsideration claim that gan’s It law. concepts incompatible with current law is our due Supreme process, citing recent States United applying guarantees Fourth, decisions12 Court States Amendments United Fifth and Sixth incorporation into Constitution the States process Amendment. of the Fourteenth due clause then Mich- conviction under the In igan grand jury Oliver not on reversed, was but
statute Rutledge. ground for Mr. contended Justice the In opinion suggests Rutledge the uncon- short, stitutionality postulates that the and statute opinion majority how far in that demonstrated case Supreme 280) “departed (p from the Federal Court plan after the Fourteenth when, our constitutional adoption, .permitted de- Amendment’s selective parture of ordered States the scheme personal liberty Rights. the Bill established experi- guise permitting In the States improving justice, ment with the administration spite ‘in left them free substitute, governments,’ their of continental absolutism justice’ place processes and of civil ‘ideas ‘principles com- time-tried institutions Rights. perpetuated mon in the Bill of law’ us Michigan Only by an exercise of this freedom has adopt apply been her scheme enabled done in this case.”
Hogan
(83
(1963),
S Ct
84 ALR2d
(1964),
372 US
Mapp v.
Ohio
9 L ed
933) ;
US
(1961),
(83
2d
Gideon v.
(84
S
After tribute Mr. Justice foresight, urges appellant quoted then that the lan- (or be) guage pres- at least should is considered the yet expressed) (though present ent view not Supreme United States Court. This conclusion, urged, by process is osmosis. can be reached acknowledging orig-
While law as inally enacted, in has been amended 1917, from time potential by to time to correct decisions, poses evils court disclosed contends that the law re- still grand jury in the one-man such “awful author- ity” that we should strike it down our as violative of concepts of current due xorocess. statutory
Judicial declarations of unconstitution- ality we think should be made of sterner stuff. We suggested process, pre- cannot, sumptively strike down legislative
constitutional act. fact The appears is that the one-man law, as it today, very our on statute books is much different from that which heretofore been has reviewed validity constitutional Court and Supreme supra. United States Oliver, Court in In re
Today, a witness called before the is presence entitled assistance counsel being room where he 1948, examined. CL (Stat 767.3, as amended PA 251 Ann 1965, No Supp 28.943). 1965 Cum no longer may magistrate examining act as the at a hearing complaint resulting on a or indictment inquiry,13 may nor he hear motions to dis- quash any complaint indictment; or miss such or any charge contempt arising he hear inquiry,14 except neglect out or refusal McCrea Michigan [13] [14] A See (68 practice (1942), In S Ct State Bar reversed re Oliver the statute 303 Mich 92 L Journal, (1955), (1947), ed 213, 247, allowed p 682), [66] [318] US (vol Mich formerly xxvii, (75 re Murchison See, reversed S Ct 9). also, upheld (1949), September (1954), L People ed 333 US 942). [1948] v. *25 In re Colacasides. 99 op Opinion appear response subpoena to a to issued summons or preside'at
by and him; he a trial inquiry. resulting (Stat from the CLS 767.4 1961, § longer § Ann 1954 Rev does the stat 28.944). permit a ute out search criminal generally15 requires but, conduct instead, authorizing inquiry, complaint order and the upon specific which such order is based, to “be inquiry.” scope common intent of of CL by (Stat PA 1948, 767.3, as amended No 251 1965, § Supp § Ann Cum Moreover, to fore 28.943). 1965 by grand jury person stall abuse witnesses staff prohibits taking any nel, the statute now tes timony grand juror in the absence re and it quires upon response that, arrival of witness subpoena, grand juror ato be notified thereof forthwith and that he forthwith take the witness’ testimony. CL as amended PA 1948, 767.3, § (Stat Supp 1965, No The Ann 1965 Cum 251 §28.943). despite early interpretation,16 statute, an has permitted to a witness who against privilege invokes his self-incrimination and scope immunity granted, as we have noted privilege above, as broad as the itself. CLS (Stat § Finally, Ann 1954 Rev 767.6 § 28.946). damage repu reduce the risk of unwarranted to the appearing tations of witnesses before the juror, well as to enhance the likelihood of inquiry’s proceedings success, before the prohibited person par are from disclosure ticipating therein as an or official or as witness except necessary counsel witness, when judicial proceedings disciplinary or in against attorney, require- an violation of such an 27, 28. 16People [15] equally Another divided court v. practice Willson (1919), the statute People allowed v. St. 28, 43, John formerly 44. (1938), [284] upheld Mich 379 Mich tiie Court. secrecy punish constitutes a misdemeanor
ment imprisonment. fine able 28.944).17 spe (Stat The statute Ann Bev transcript provides cifically that the and record rele- to him when be available witness made following December issued the order On this Court terms, directed, by judges its to all of courts of record “now conduct ing proceedings under our one-man or hereafter authorized to conduct” grand jury law, of the statute: secrecy provisions compliance to assure full with the op Michigan “State Supreme “In the Matter One-Man Proceedings Jury Grand Judges Record: Courts “To All *26 motion, conducting judges own all now or here- this Court’s “On hereby grand proceedings conduct one-man authorized to after grand jury all and other to order members of their staffs are directed fully following inquiries eomply to sueh with the persons admitted Ann provisions of CLS 767.4 1954 Rev 28.944]: § [Stat § “ perjury prosecutions contempt against ‘Except in cases of or may judge con- who have been summoned before the witnesses inquiry, purpose determining ducting sueh or for of wheth- testimony judge of sueh er consistent a witness examined before is testimony given by with or different from the sueh witness any subsequent proceeding, disciplinary in in before a court action or eases of against attorneys state, any judge in and counselors this con- any attorney ducting inquiry, prosecuting persons sueh and other may judge inquiry, who at the discretion of such be admitted to sueh conducting inquiry in who shall while such or while the services of judge judge or after shall sueh discontinued, his services with such have been publish any any pertaining inquiry, utter or statement in- any formation or evidence involved in sueh or who shall any felony diselose the fact indictment for a has been found against any person shall in custody recognizance, or under or who any person questioned has been or diselose summoned inquiry, with publish connection such or who shall diselose or published any inquiry or cause to be of sueh other- by issuing executing processes prior than or indictment, wise to such diselose, publish published comment, or shall or opin- cause to be thereto, guilty ion or conclusions related shall be of a misdemeanor punishable imprisonment county jail not more than 1 year $1,000.00 $100.00 or a fine of not less than nor more than imprisonment eourt, or both sueh fine and in the discretion of the public sueh offense when committed official shall also constitute malfeasance office.’ foregoing compliance “The direction of full with section apply equally judges performing shall Any jurors. to the duties as eontempt violations hereof shall be to be deemed of Court. this Kavanagh Sgd. Thomas M. Chief Justice “Dated: December 1966” Oolacasides. Opinion op the Court. any appeal proceeding. other vant or (Stat 28.946[1]). Ann 767.6a 1954Rev deficient this State’s one-man However against been, when statute once have measured process, recognized now has standards due persuade as now that, failed us written, it process. denies due present statute all
We find meets of the re-' quirements Michigan Constitution and the Constitution United No States. rights appellant guaranteed thereby been have judgment him. The denied entered Wayne imposed the pursuant circuit court and the sentence
thereto are affirmed. costs, constitu- being tional issues involved. J.,C. and Brennan, JJ., Black
Dethmers, concurred Souris and O’Hara, JJ. with (concurring). join opinion I J.
Adams, except Justices section O’Hara Souris III-A opinion. question separation of said As to the powers, I believe that the decision of this Court Slattery (1945), judge in conducting re that a jury proceeding
a acts judicial capacity, controlling-and disposes' question. of
Kelly, J., concurred with J. Adams, (concurring). T. M. Kavanagh, J. I concur in the opinion result reached of Justices Souris except limit such concurrence with O’Hara, I separation powers question to the reference Slattery, the decision of this in In re 310 Mich judge conducting held 458, which that a a one-man proceeding judicial capacity. acts