Makowski v. Governor

Makowski v Governor v GOVERNOR MAKOWSKI 4). (Calendar 11,2013 Argued No. Decided December No. 146867. Docket 3, 2014. June against the an action in the Court of Claims Matthew Makowski filed State, declaratory judg- seeking Secretary a of Governor and injunctive Jennifer then Governor ment and relief to reverse plaintiffs of to revoke her commutation Granholm’s decision imposed first- nonparolable had been for his life sentence that robbery had degree convictions. The Governor murder and armed 2010, 22, after it was signed on December which the commutation Seal; signed by Secretary affixed of State and with Great however, days later, decided to revoke the four the Governor order, copies of the commutation certificate commutation and all alleged destroyed. was final Plaintiff that the commutation were sealed, Department signed, and delivered to the when it was authority Corrections, argued and that the Governor lacked Ball, J., court, completed The Richard D. revoke a commutation. concluding summary disposition, granted defendants’ motion for jurisdiction governor’s exercise of it lacked to review appealed. The over commutation decisions. Plaintiff discretion Cavanagh JJ., PJ., Appeals, and Donofrio, Court of O’Connell, affirmed, holding that the exercise of the commutation Governor’s nonjusticiable political question. App power presented 299 Mich a (2012). granted plaintiffs application Supreme The Court appeal. leave to joined by opinion Chief Justice In an Justice Cavanagh, Young Supreme and Justices Markman, Kelly, Viviano, Court held: powers interpretation and exercise of the Governor’s justiciable properly questions § 14 were under Const give The Constitution did not the Governor before this Court. validly granted A revoke a commutation. Secretary signed by complete and the it is the Governor when Because the Governor State and affixed with the Great Seal. Secretary signed plaintiffs it to the commutation and delivered Seal, plaintiff State, signed with the Great where it was and affixed commutation of his sentence. an irrevocable 495 Mich 465 present nonjusticiable political question. 1. The case did not First, grants while the Constitution the Governor absolute discre- regarding grant deny commutation, tion whether to or procedure Constitution also restricts the of a commutation to that provided by Accordingly, procedure which is law. the of a commu- tation, including finality, wholly its is not committed the text of Second, ques- Constitution to the Governor. resolution of the presented tion beyond did not demand that the Court move areas judicial expertise legal of questions because the case rested on of interpretation vesting constitutional rights, and the of which are judicial determining in nature and did not involve whether the judgment. Third, Governor had exercised sound there were no prudential prevented resolving considerations that the Court from issue, given determining the extent of the Governor’s powers political was a matter of constitutional law rather than discretion. Reviewing the Governor’s exercise of the commutation power constitutionality to determine separation- its did not violate of-powersprinciples determining because the extent of the Gover- powers nor’s power was not an exercise of the whole of commuta-

tion. 3. Plaintiffs sentence was commuted after the commutation signed by Governor, signed by had been Secretary State, and affixed with the clearly Great Seal because the Governor intended to commute the required sentence and the last act of the completed. executive had been grant 4. The Constitution power did not the Governor the to revoke a 5, commutation. The § fact that Const art specificallyprovides may grant that the Governor a commutation implies power only that the Governor’s ability, is limited to that interpret power implicitly to providing power as to give revoke would not the Constitution the sense most obvious to understanding the common opposite because to revoke is the of to grant. Further, power grant the existence of the a conditional implies commutation expressly that a commutation that is not subject may Moreover, to conditions not be revoked. the Gover- attempt plaintiffs nor’s impermissibly revoke impinged powers parole on the plain- of the board because once commuted, parole tiffs sentence was he was under the board’s jurisdiction. Also, power should the Governor have the to revoke a commutation, point power it is not clear at what would cease. purpose sought accomplished by pardon to be did not counsel a different result. v Makowski Governor Opinion the Court reversed; Department Appeals judgment of Correc- Court of parolable plaintiffs sentence as a life to reinstate tions ordered jurisdiction parole sentence; plaintiff remanded to the board. concurring, separately because he would Justice wrote ZAHRA, (1 Madison, Marbury analysis 5 US

have adhered to the Craneh) (1803), been exercised which stated that a required person possessing the last act from when performed, became to conclude that the commutation has been signed the ministe- final it rather than when when Secretary duty affixing completed rial the Great Seal was of State. part took no in the decision because of her Justice McCormack

prior involvement in the case. — — — Justiciability Guberna- 1. Constitutional Law Political Questions — torial Powers Commutation Decisions. governor’s power grant Determining or revoke a the extent of the present a criminal does not commutation after conviction 14). (Const 1963, nonjusticiable § political question — — — Separation Powers 2. Constitutional Law of Powers Gubernatorial — by Commutation Decisions Review Courts. constitutionality governor’s of the exercise of Judicial review of the separation-of-powers the commutation does not violate 14). (Const 1963, 5, § principles art — — Powers Commutation Decisions 3. Constitutional Law —Gubernatorial Finality Revocability. — complete of a criminal sentence becomes after it The commutation secretary state, signed by governor, signed by the has been Seal; governor not have the and affixed with the does Great (Const 1963, validly completed art to revoke 14). 5, § plaintiff. Paul D. and Charles L. Levin for Reingold Lindstrom, Schuette, General, Aaron D. Attorney Bill General, Govorchin, Assistant Solicitor and A. Peter General, Attorney for defendants. us to consider the requires J. his case

Cavanagh, pardon exercise of the extent to which Governor’s 495 MICH465 1963, powers 5, § conferred Const art justi- ciable; whether our review of the pardon powers offends doctrine; the separation-of-powers whether the commu- plaintiffs tation of sentence complete; was and whether 5, § Const grants Governor the power to revoke a commutation. We hold that the extent of the Governor’s pardon powers justiciable is a question and our review does not violate the separation-of-powers doctrine. We also hold that the Michigan Constitution grant does not Governor the to revoke a valid commutation, and that plaintiffs commutation was valid and irrevocable when it signed was Gover- nor and the Secretary of State and affixed with Great Seal. Accordingly, we reverse the judgment of the Court of Appeals, order the Department of Corrections to reinstate plaintiffs sentence to a parolable life sen- tence, and remand plaintiff jurisdiction parole board.

I. FACTS AND PROCEDURAL HISTORY In plaintiff manager was at a Dearborn health club. Plaintiff gave cash to one of his employees to act as a courier and sent the courier to a bank to obtain a money order. Plaintiff then conspired with a second employee that employee’s roommate to have the roommate rob courier en route to the bank. During the attempted robbery, the courier fought back and the roommate courier, stabbed the resulting the courier’s death. Plaintiff charged with and convicted of first-degree felony murder and robbery armed and sentenced to life in prison without the possibility of parole.

Plaintiff was a prisoner, model receiving only two minor misconduct tickets in while In prison. January 2010, plaintiff filed an application for commutation. Plaintiffs application was considered by board, the parole which Makowski v Governor hearing. to a proceed public recommended that the case Wayne to the hearing The board sent notice parole County Wayne Prosecutor and to the successor County to the Judge. family Notice was not sent victim’s Circuit as register members as victims family because failed.to Act. Rights notice under the Crime Victim’s required A was scheduled for Octo- hearing See MCL 780.769. Michigan and the Corrections 21,2010, Department ber hearing early notice of the on its website public posted nor the hearing, prosecutor At the neither the October. commutation. Follow- family opposed or appeared victim’s the commutation hearing, parole board sent ing Jennifer Granholm with a to then Governor application recommendation. favorable 22, 2010, signed December the Governor

On the signed The Governor’s office sent commutation. State, affixed the Secretary commutation to the who of State’s autopenned Secretary Seal and Great p.m., to the commutation. At 1:52 the Gover- signature sent an e-mail to several deputy legal nor’s counsel announcing “[t]he state officials Governor request [plaintiff].” Early the commutation approved re- 23, 2010, legal the Governor’s counsel December the victim’s lawyer representing ceived a call from a family, expressed family’s opposition who family’s unhappiness commutation and the with lack of notice. 27, 2010, deputy legal

On December the Governor’s a letter from the Governor to the counsel delivered the chair to halt officially directing board chair parole indicating proceedings all commutation intended to revoke the commutation. destroyed counsel obtained and deputy legal Governor’s all of the certificate of commutation. On Decem- copies left office and on 31, 2010, Governor Granholm ber 495 Mich 465 1, 2011, January newly elected Snyder Governor Rick 25, 2011, assumed office. On March parole board plaintiffs commutation, reconsidered against voted rec- ommending plaintiff commutation, and notified the newly elected negative Governor of its recommenda- 15, 2011, tion. On April Governor denied plaintiffs commutation.

Plaintiff brought suit on May 2011, alleging that the commutation of his sentence was final on December 22, 2010, signed, sealed, when it was and delivered to the Department of Corrections. Plaintiff also alleged the Governor lacked authority to revoke a com- pleted commutation and that the revocation increased plaintiffs sentence in violation of the Double Jeopardy Clauses and plaintiffs due process rights. parties filed cross-motions for summary disposition, and on 15, 2011, November the trial granted court the state’s motion for summary disposition, ruling that the court lacked jurisdiction to consider the issue. Plaintiff ap- pealed, and the Court of Appeals affirmed. Makowski v Governor, 299 Mich App 166, 168; 829 NW2d 291 (2012). We leave to appeal.

II. STANDARD OF REVIEW Questions of constitutional and statutory interpreta- tion are reviewed de novo. Midland Cogeneration Ven- ture Ltd v Partnership Naftaly, 489 Mich 89; 803 (2011). NW2d 674

III. ANALYSIS A. POLITICAL QUESTION DOCTRINE We must first consider whether this presents case nonjusticiable political question. The of a concept non- justiciable political question was introduced in the v Governor Makowski Opinion op the Court Marbury case Supreme Court United States seminal (1 Cranch) 137; 2 L Ed 60 When Madison, 5 US Court Supreme States the United considering whether in Mar- posed the questions to review had the constitution “[b]y Court explained bury, certain with States, is invested president the United he is of which in the exercise political powers, important cases, . . . such “[i]n his own discretion” to use of the manner be entertained may opinion whatever there used, still may be executive discretion which that discre- exist, no to control exists, can and not in- may courts Accordingly, Id. at 165-166. tion.” perform executive or his officers into how the quire Id. at 170. have discretion. they in which their duties nature are by that their held that questions The Court by the executive only to or that are submitted political courts. Id. reviewed cannot be the Constitution duty and province However, is, “it emphatically, Id. at the law is.” say what judicial department, act of the executive held that whether The Court in the legal right a commission vested granting determinable legal question, properly awas appointee Id. at 171.1 by the courts. 560; 506 Governor, 443 Mich Speaker

In House (1993), political-question addressed the 190 we NW2d 1963, art under Const whether doctrine and considered all powers to transfer § 2 had the Governor created legislatively department duties from a for environmental responsible executive branch department created to a gubernatorially protection Mich at 564. Speaker, House purpose. had the same jurisdiction because the Ultimately, Marbury for lack of was dismissed Court, Supreme which did not brought in the United States case was Marbury, case. original jurisdiction to hear a writ-of-mandamus have US at 175-176. 495 MICH 465

One of the in arguments House Speaker, case, as was that the Governor’s exercise of was not properly reviewable by this Court. Id. We applied test to three-part determine whether question pre- sented was a nonjusticiable political question: [1] [d]oes the issue questions involve resolution of commit

ted the text of the Constitution to a coordinate branch of Government? question [2] Would resolution of the demand beyond judicial a court move expertise? areas of [3] Do prudential maintaining respect considerations for between the three against judicial branches counsel intervention? 574, citing Carter, [Id. at Goldwater v 998; 444 US (1979) 553; (brackets S Ct 62 L Ed 2d 428 quotation omitted).] marks First, we consider whether the issue involves the resolution of questions that the text of the Constitution commits to a coordinate branch of government. Id. In addressing this question, the United States Supreme Court has stated that “the must, courts in the first instance, interpret text in question and determine whether and to what extent the issue is textually committed.” Nixon v States, United 224, 228; 506 US 732; 113 S Ct 122 L Ed 2d 1 Therefore, we must begin by interpreting the text of the constitutional provision in question.

“In interpreting the constitution, this Court has developed two rules of construction.” &Soap Detergent Ass’n v Natural Comm, Resources 415 Mich 728, 745; 330 NW2d 346 First, the interpretation should be “the sense most obvious to the common understand- ing; the one which minds, reasonable the great mass of (citations people themselves, give would it.” Id. and omitted). quotation marks Second, in previous cases we have considered “the circumstances the surrounding adoption of the constitutional provision and the pur- (citations pose sought to be accomplished^]” Id. and Makowski v Governor 473 omitted). provides The Constitution marks quotation “subject to commutations may grant Governor that the law.” Const prescribed by regulations and procedures added).2 Thus, the sense 5, § 14 (emphasis art 1963, of article 5, understanding the common most obvious to a limit on the Governor’s clearly places that it 14 § to enact laws by allowing Legislature the power pardon regula and necessary procedures determine the Therefore, the commutations. while surrounding tions the the Governor Michigan provides Constitution commutations, the Governor is not power grant to power. control of the given pardon sole Next, surrounding “the circumstances we consider constitutional provision adoption House sought accomplished[.]” Speaker, to be purpose adoption 443 Mich at 580. We conclude the Governor’s article 14 also indicates that 5, § limited. The debates in the to commutations is grant record, not determina Constitutional Convention while of article tive, interpretation our 5, clearly support 443 Mich at 580-581. The § 14.3 See House Speaker, at the surrounding pardon power debate considered two Constitutional Convention Michigan should be main whether questions: and whether ability delegate power, to granted limit the should be Legislature provides: § Const grant reprieves, governor commuta- shall have offenses, except pardons for all cases of tions and after convictions may impeachment, upon he such conditions and limitations as direct, prescribed by subject procedures regulations He law. annually reprieve, legislature commuta- of each shall inform stating pardon granted, reasons therefor. tion and noted, previously convention the constitutional As this Court debates, controlling, illuminating, affording a “are sometimes while Speaker, Mich at . ..House sense direction 495 MICH465

pardon process. Record, See Official Constitutional Convention 579-585. The Executive Branch Com mittee originally proposed that Governor’s overall duties were too strenuous to require Governor to personally handle each individual pardon commu tation. at Thus, Id. the Committee favored a constitutional provision that allowed the Governor to delegate pardon However, duties. Id. the delegates expressed discomfort with allowing the Governor to delegate the pardon power, 579-580, id. at and the Hutchinson Amendment removed the Governor’s abil ity to do so inserting the word “exercise” instead of the word “delegate” when referring to the Governor’s pardon powers, id. at 583.4 The debate makes it clear that the convention delegates were uncomfortable with anyone other than the chief executive exercising pardon power. Id. at 579-580.

The later debate surrounding the Hutchinson Amendment considered whether the Legislature should have regulate the Governor’s pardon power. Id. at 585-587. There was support for the con- cept that Legislature could control the procedures for a pardon, but there was concern that the Legislature could make the process so difficult that the Governor’s grant a pardon could nearly be eliminated. Id. at 586-587. Nevertheless, the limitations on the pardon power were ultimately incorporated, and the provision was referred to the Committee on Style and Drafting reading that the pardon power was “subject to regula- tions provided by law relative to the manner of applying 4 The ultimately Hutchinson adopted, and, Amendment was in stead, provision was returned to committee in order to better craft language. Record, Official pp Constitutional Convention However, amendment, 586-587. Amendment, a later the Faxon adopted placed pardon power solely with the Governor. Id. at 587-588. Makowski Opinion the Court committee, returning After Id. at 588. pardon.” edited to power provision of the pardon the text “regulations” after procedures” “and phrase insert the for applying the manner of “relative to and to strike Record, Convention Constitutional Official pardon.” the introduc- concerning The comments 1961, 2740. p that the intent of the clarify text tion of the revised that the to reflect the convention’s view alteration was as consistent procedure, control the Legislature could Indeed, at the debate. Id. 2740-2741. previous with the the the to control Legislature power of the with vesting not surpris- and is pardons of commutations procedures legislative a recognized have this as ing long because we 441; Chamberlain, Rich v power. See (1895) Constitution, in that “the (explaining NW 584 terms, lodges pardoning power with express gov- and with it the co-ordinate branches governor, do, legislature as the nothing except ernment have to be applications may how may by provide law ....”). Thus, our of Const interpretation made 5, § the conclusion that the Gover- 14 leads us to limited those nor’s to commute sentence is power that the enacts. regulations Legislature procedures Accordingly, the distribution of between Legislature regarding and the Governor commutations that this Court must answer. In legal question creates a Nixon, Court held that the Supreme the United States judge process by impeaches which Senate However, keya consideration Nixon’s nonjusticiable. gives holding was that the United States Constitution try impeachments. the Senate the “sole” all indicated “sole” Nixon held use word the Senate and nowhere authority that the resided with Alternatively, House Nixon, else. 506 US at did not the fact that the Constitution relied on Speaker effectuating legislation pro- place responsibility 495 MICH465 tecting natural resources within the “sole control” of Legislature. Speaker, House 443 Mich at (quo- omitted). tation marks Whether Governor had the constitutional to create department his own transfer powers department from the existing created legislatively did department present a non- justiciable question and, instead, only required that the Court apply rules of constitutional interpretation. Id. at 575-576.

In case, the fact that the Constitution provides Legislature the power regulate the process by which commutations are means that the Gov- ernor does not have “sole control” over the pardon power. The Court of Appeals held that the Governor’s absolute discretion was not limited the statutory provisions that set forth procedural requirements of Makowski, commutations. 299 Mich at App 175. How- ever, the Court of Appeals’ analysis misses the mark because the Governor’s to grant commutations is limited statutory provisions. Therefore, inas House Speaker, only we need to apply the rules of constitutional interpretation and interpret the relevant statutes to determine at what point complete. House Speaker, 443 Mich at 574. We do not examine the exercise of the discretion, Governor’s as the held; instead, Court of Appeals we interpret extent of the Governor’s power. The Constitution in- grants deed the Governor absolute discretion regarding whether to grant deny commutation; or a however, the Constitution restricts the procedure of a commutation to that which is provided by Thus, law. the Constitution does not grant “absolute power” Governor, Ma- kowski, 175, 299 Mich App at and we therefore conclude the procedure commutation, of a including its finality, is not wholly committed by the text of the Constitution to the Governor. Makowski v Governor question, House

Considering Speaker the second in this case does question presented resolution beyond areas of the Court move not demand that Mich at Speaker, House judicial expertise, judicially ‘lack of discoverable because “there is no case; nor is a resolving’ for manageable standards an initial determi- policy ‘without impossible decision ” nonjudicial discretion.’ clearly a kind nation of (Powell, J., concurring), Goldwater, 444 US at 999 691; Carr, 186, 217; 82 S Ct Baker v 369 US quoting held that Appeals L 2d The Court Ed guess mere this case “would constitute resolution of judicially and that there were no and speculation” standards that would manageable discoverable and precisely to determine “how and have allowed a court is considered application when a commutation Makowski, App 299 Mich at 176. How- ....’” ‘granted stated, rests ever, ultimately this case previously as legal Constitution —a of our upon interpretation duty say Court’s “what it is this question —and “ ‘[D]eciding 5 US at 177. whether Marbury, law is.” in measure been committed any matter has government, branch of or Constitution to another exceeds whatever the action of branch whether committed, is itself a delicate exer- authority has been interpretation, responsi- and is a cise constitutional Speaker, House at bility of this Court....’” 211. And the extent Baker, 369 US at quoting actions must consider whether the Governor’s that we commutation, question “[t]he granted plaintiff nature, in not, is, or its right whether a has vested by judicial authority.” tried judicial, and must be Marbury, 5 US at 167. 791.234(1), Legislature pro- MCL our

Through a mini- serving that a a sentence with prisoner vided subject jurisdiction to the of years mum term of “is 495 Mich 465 parole board when the prisoner has served a period of time equal to the minimum sentence imposed by the court for the crime of he which or she was convicted... .” The assumed language plaintiffs commutation provided that his sentence was commuted “to [time served in months, years, and days as calculated by the Depart- ment of minimum Corrections] to life maximum, thereby him making eligible for parole [a on date some months earlier than the date of the commutation].”5 Therefore, a validly executed commutation brought plaintiff within the jurisdiction of the parole board pursuant 791.234(1), to MCL him making eligible for and, parole, thus, granted him the right to parole consideration. A person eligible for parole is not entitled parole 791.234(11) aas matter of right. See MCL (stating that “a prisoner’s release on parole is discre- tionary with the parole board”); Russell, Adams v (1912) 608; 135 NW 658 (holding similarly when considering previous version of parole statute); Greenholtz v Inmates the Nebraska Penal & Corr Complex, 1, 7; 442 US 2100; 99 S Ct 60 L Ed 2d (1979) (holding that “[t]here is no constitutional or right inherent of a convicted person to be conditionally released sentence”). before the expiration of a valid However, under 791.234(1), MCL a person who eli- gible for parole is nonetheless differently situated from a person serving a nonparolable life sentence. This change allegedly status conferred the commuta- tion granted plaintiff the right parole consideration. (4 Wall) Cf. Ex Garland, Parte 71 US 380-381; L18 (1866) (“[I]f Ed 366 conviction, after pardon] [a destroyed Plaintiffs commutation pursuant certificate was Governor’s command after the decision to revoke the commutation. However, all commutations issued the Governor contained the same language components, standard and the state does not contest the language plaintiff assumed s commutation. Makowski v Governor Opinion of the Court removes the penalties and disabilities and restores him to all rights; his civil it. . . him gives a new credit and capacity.”).

Therefore, case, in this inas a Marbury, legal docu- ment was signed by an granting executive a person a right. The executive then attempted to right revoke the granted by Thus, the document. as in Marbury, at issue is the ability Court’s to determine whether the docu- ment granting plaintiffs commutation was effective despite lack of a codified procedure, and whether the commutation, if validly granted, may be revoked. The similarities between this case and Marbury are notable, and the fact that the United States Supreme Court reached the merits Marbury persuasive. In Marbury, President Adams commissioned multiple jus- tices of the peace for Washington, D.C.Marbury, 5 US at However, the commissions were not delivered to the newly justices commissioned of peace before the change of presidential administrations. After the new administration office, took Madison, James the new Secretary State, refused to deliver the commissions. The commissioned justices of the peace brought suit in the United States Supreme Court a seeking writ of mandamus requiring Madison to deliver the commis- sions. Id. at 153-154.

Similar to the situation in Marbury, the Michigan grants Constitution the Governor a power without providing explicit procedural requirements for its exer- cise. The lack procedural requirements for commu- tations does not foreclose this Court’s ability consider the validity and finality Indeed, commutations. Court has in the past considered whether gubernato- rial pardon valid, holding that a pardon bearing the Great Seal and the signatures of the Governor and Secretary of State was sufficient despite defects on the 495 Mich 465 Judge, v Benzie Circuit Spafford

face of document. (1904). In 25, 27; Spafford, NW legislatively pre- requirements pardon were nevertheless, scribed; reached the merits.6 this Court Id. case, controlling statutes in this

Turning 791.244, for MCL and MCL applications under 791.243 parole must first to the presented commutation be Further, MCL for a recommendation. under board be 2.44(d), great seal shall impression “[a]n not Legislature on” has placed commutations. is for a guidance required as to what provided express require- commutation the Great Seal completed beyond However, ment found MCL 2.44. our review within has been merely Legislature not foreclosed because the surrounding largely proper procedures silent on hold- Contrary to the Court Appeals’ commutations. a commu- ing, “legislating] we are not how when Ma- tation decision becomes final irrevocable.” kowski, must App point at “Some of time 176. taken, . .. must be when the of the executive cease,” and, therefore, at 157, simply 5 US we Marbury, Thus, must determine when that time is. whether the a to commu- right Governor’s actions plaintiff Spafford provision provided that the The constitutional in considered offenses, “may grant... except ... for all trea Governor commutations impeachment, upon such son and cases of such conditions and with subject may proper, regulations limitations as he restrictions and think provided applying pardons.” Const law relative manner Arguably, previous provision § 9. commutation regarding provided greater Constitution the Governor discretion Constitution, powers of than because the commutation the current process Legislature’s power governing in limited to the commutation Therefore, application. although Spafford expressly did not consider case, justiciability, merits it is because the Court reached the in that may logical merits See that also reach the in this case. Court Spafford, 136 Mich at Makowski Governor op Opinion the Court and, so, tation of if his sentence whether revoke a may commutation under the Michigan Consti- are are questions only tution not well within this Court’s are expertise, they this questions Court the duty to answer. This need Court not determine whether the Governor judgment exercised sound in granting and revoking plaintiffs commutation; we merely must determine whether the Governor com- pleted all the steps legally required plaintiff to grant commuted sentence and whether Constitution af- fords the Governor the revoke valid commu- Therefore, tation. we beyond need not move the areas of in judicial expertise deciding this case. the third

Addressing Speaker question, House there are no prudential that prevent considerations from resolving Court the issue. House Speaker, 443 Mich at 574. The Court Appeals erroneously exam- ined whether “Michigan’s Constitution empowers the Governor, solely, to exercise judgment Makowski, matters.” 299 Mich atApp 178-179 (empha- added). But, sis again, once we do review the merits underlying the Governor’s discretionary exercise of rather judgment but the extent of the Governor’s pow- ers. “The of decisionmaking issue authority must be law, resolved as a matter of political constitutional not discretion; it accordingly, competence falls within the of the courts.” 444 Goldwater, US at (Brennan, J., 1007 added). dissenting) (emphasis Nor are we an “coerc[ing] outcome is contrary that . . the. Governor’s clear Makowski, . intention .. .” App 299 Mich at 179. “In- terpreting the constitution does not a imply lack of respect for another of government, branch even when interpretation that differs from that of the other branch.” Speaker, House 443 Mich at And 575. while case certainly presents a politically charged issue, the mere fact a question political involves issues Mich 465

482 495 Opinion the of Court at Id. it a “political question.” not make does “ fide as law suit” a bona reject cannot “no ‘The courts action denominated controversy some as whether ” Id., authority.’ quot- exceeds constitutional “political” “the mere fact that Baker, Indeed, at 217. 369 US ing not right of a does political protection [a] suit seeks objection Such an political question. it a presents mean ” Baker, US 369 upon ‘is little more than words.’ play 536, 540; Herndon, 273 47 209, at Nixon v US quoting (1927). sum, nothing 446; 71 L Ed In there S Ct 759 in this the merits case. reaching us from precludes OP POWERS B. SEPARATION the of powers exercise of Our review Governor’s impermissible is not an violation of provides of Constitution separation powers. While 1963, 3, government, three branches of Const separate need be § these branches 2, the boundaries between (On Co v Kent Co “airtight,” Kent Prosecutor Sheriff 314, (1987), 322; Mich 409 NW2d 202 Rehearing), 428 Serus, 433 US quoting vAdministrator Gen Nixon (1977). 2777; fact, Ed 2d In 443; “[i]n S Ct 53 L dividing our the structure of Government designing power among co-equal three allocating sovereign branches, sought the Framers of Constitution powers system, separate but provide comprehensive absolute operate indepen- were not intended to with Prosecutor, 322, quoting Kent Co at dence.” 707; 3090; 41 Nixon, US 94 S Ct United States v [of “The meaning L Ed 2d true doctrine] is that whole separation-of-powers not be one of these should exercised departments of either of the possess same hands which whole and that such exercise of whole departments; other Local subvert the a free Constitution.” principles would Makowski v Governor 321, State, & Muni v City Co Workers America of of (1945) (cita- Dearborn, 674, 677; 19 NW2d 140 omitted). tion and quotation marks power While the Constitution reserves the pardon Governor, may Court review Governor’s of exercise to ensure that it is constitutional. Governor, 209, Cf. 217-219; Buback v 380 Mich (1968) J.) NW2d 549 (opinion by ADAMS, (stating that may Court review the Governor’s removal it ensure is exercised within the confines of Clause). Due Process It is true that the not may courts commute a People 306, sentence. 334 Mich Freleigh, 310; 54 NW2d However, we are not com- sentence, muting plaintiffs rather, as the argues; state we are the extent determining of the Governor’s power 5, § under Const art 14. The Governor ordered plaintiffs commutation of sentence and the revoca- tion of commutation. We judge do not the Gover- discretion, nor’s nor do we usurp Governor’s power and direct plaintiffs merely commutation. We deter- mine what if rights, any, the Governor granted plaintiff upon delivery plaintiffs certificate of com- mutation to the Department Corrections, it whether was within the Governor’s power to revoke

any rights granted. As previously explained, our review of whether may revoke a commutation in this case is an exercise of the power” “whole Instead, commutation. it is a deter- mination of the extent of the powers Governor’s under Therefore, Constitution. our review this case does not offend separation-of-powers principles.

C. FINALITY OF THE COMMUTATION grant Governor’s commutations under 5, § Const 14 is limited “to those procedures 495 Mich 465 Opinion of the Court law.” Const regulations prescribed by earlier, the facts § As stated the similarities between 14. Marbury in this case and presented and the questions Supreme Court’s Thus, the United States striking. are in where we Marbury helpful in is this case analysis Marbury, In the commis- guidance. have little otherwise Senate, the by signed by sions were confirmed the President, and affixed the seal of the United States with Marbury, the of 5 US at 155. Secretary State. However, the the commissions were not delivered to justices peace, of the James newly commissioned their Id. sought appointment. Specifi- Madison to block analysis regarding justices the cally,Marbury’s whether peace of the were entitled the commissions necessar- effective, ily were appointments considered whether the id., particularly analysis and is relevant our here. justices the of the considering peace When whether commissions, Marbury determined were entitled the signed commission, the that once the President the act commission as that was the last complete, was Marbury it. making Importantly, of the required person taken, point stated that of time must be when “[s]ome officer, an of the executive over remov- be, will, of time point able at his must cease. That must been appointment when constitutional has held has Marbury exercised.” Id. at that the act, required “when the from the been exercised last person possessing power, performed,” been which of the Id. signing commission. instructive. In the defen-

Spafford Spafford, also manslaughter, pardoned dant was convicted of but was he filed a motion before was sentenced. The defendant county denied the judge for his but discharge, motion, effective claiming that was not pardon defects on the face of the document. multiple because of Makowski v Governor Spafford, 136 Mich at 26-27. This Court determined that none defects rendered the pardon invalid because the pardon’s “substance left no doubt of the intention of the Governor to extend executive clem- ency.” Further, at 27. Id. the Court stated that it had “no validity doubt of the instrument when signed by the Governor . . . and signature attested secretary of state and great State, seal of the if otherwise regular form and substance.” Id.

The text of the commutation makes it clear that the commutation was I, final: Therefore, “Now Jennifer M. Granholm, of the State of Michigan, do hereby commute the sentence of . . .” [plaintiff] . (Emphasis added). Soap Detergent Ass’n, See & 415 Mich at 757 (discussing the for rules interpretation of executive acts and explaining that “[t]he executive intends the mean- ing that is clearly expressed”). “Hereby” is defined as “[b]y document; by very these words[.]” Black’s (8th ed). Dictionary Thus, Law we conclude that the commutation’s substance “left no doubt of the inten- tion of the governor to extend executive clemency.” Spafford, 136 Mich at 27. Indeed, it is clear that the Governor herself considered the commutation com- pleted. signed The letter by the Governor ordering the parole board to refrain from effectuating the commuta- stated, tion “[I]t is my intention ... to revoke the commutation of [plaintiffs] fully sentence before effec- added.) tuated.” (Emphasis The Governor’s use of the word “revoke” indicates that the Governor herself believed that the commutation had been granted. More- over, e-mails among explicitly executive officers stated that the commutation was “[g]ranted and certificates [were] delivered” in response to an inquiry whether the already Governor had commutation, the sug- gesting that the executive branch believed that the commutation had been granted. 495 MICH465

Opinion of Court explained, point at some Marbury as Additionally, have been a sentence must to commute executive had been that executive Marbury held exercised. act, person from the required last “when the exercised which, in performed,” has been power, possessing Mar of the commission. case, signature that grant the discretion 5 US at 157. While bury, Governor, Legis our solely lies with commutation be affixed a commutation must provided lature considering Indeed, Marbury, Seal. with the Great required statute that congressional similar is sealed, that “when the seal stated commissions be affixed, made, and the commission is is appointment law; no solemnity by is other required valid. No other government.” part be on the performed act of added). After (emphasis at 158-159 Marbury, US was delivered to the commutation being signed, Seal, as affixation of the Great of Secretary State commuta Therefore, when the by MCL 2.44. required Governor, signed the Secre signed tion was Seal, the last State, with the Great tary and affixed per had been of the executive branch required act had formed and Governor’s it was both the clear intent been exercised. Because and the plaintiffs to commute sentence the Governor for a commutation had act of the executive required last hold that once the commutation completed, been we Secretary affixed the Great Seal with State, plaintiffs sentence had been commuted. POWER TO REVOKE A COMMUTATION

D. THE GOVERNOR’S plaintiff we hold that the Governor Because commutation, must next determine whether Const we 1963, 5, power § 14 to grants art Governor stated, we con- previously a commutation. As revoke 487 Makowski v Governor Opinion op the Court sider two questions when interpreting Constitution: the interpretation must be “the sense most to obvious the common understanding” “the circumstances surrounding adoption of the constitutional provi- sion and the purpose sought to be accomplished^]” (citations Speaker, House 443 Mich at omitted). quotation marks

The language of the Constitution only confers power to grant commutations. The fact that the Con- stitution specifically provides that may Governor grant a implies commutation that the Governor’s is limited to only ability. interpret To the expressly provided power “grant” to implicitly provide the power to “revoke” would not give the Constitution “the sense most obvious to the common understanding” because the meaning the word “revoke” is the exact opposite of the word “grant.” See Merriam-Webster’s (2011) Collegiate Dictionary (defining “grant” as “to or bestow formally” transfer and “revoke” as “to annul back”). or recalling taking Notably, the Constitution permits the Governor grant conditional pardons and commutations.7 When a Governor has granted a conditional commutation, if the conditions are fulfilled, may revoke the commutation. See People Marsh, 410; NW 472 Given that to grant a conditional exists, it logically follows that a commutation that is not expressly subject to condi- tions and may limitations not be revoked.

Moreover, it is well established that a trial judge does not have the change a valid sentence because judge’s authority over the prisoners passed once 5, § Const may grant pardons states that the Governor “upon and commutations conditions and limitations as he such may Emphasis direct.” added. 495 Mich 465 Opinion op the Court 577; Fox, People see imposed,

the sentence is increasing validly a (1945), and that 20 NW2d 732 Lange, Ex Parte impermissible, sentence is imposed Wall) (18 Similarly, 21L Ed 163,173; US a commutation was to revoke valid attempt Governor’s authority prisoner’s her over the because impermissible plaintiffs Once sentence passed. had commutation jurisdiction commuted, he was transferred of life longer no one board and his sentence was parole 791.234(7). See MCL parole. possibility without to Therefore, attempt plaintiffs revoke Governor’s upon parole impermissibly impinged commutation from its wresting away powers by plaintiff board’s jurisdiction.

Further, should the to revoke a power that would exist, point power it is not clear at what under powers pardon cease. Because the Governor’s grant reprieves, § 14 include the to power article commutations, pardons, interpretation and our similarly grant to commutations power Governor’s grant pardons to the Governor’s applicable that if Thus, it is to consider reprieves. important and 5, § 14 to revoke grants article the Governor commutations, grant it would also Governor reprieves, raising revoke serious pardons ability to direct the regarding the Governor’s concerns person. of a free Under state’s reincarceration able to revoke a com- a Governor would be argument, that long so as granted by mutation Governor office, thereby returning pris- remains in years potentially to a life sentence nonparolable oner that the drafters agree a commutation. We do not after broad give powers: intended to the Governor such liberty pardon under the person has been set at When executive, he of his sentence or the commutation MAKOWSKIV GOVERNOR citizen, becomes once more a full clothed with all the rights, privileges, prerogatives belong any other freeman. He cannot be sent out half free and half slave. He body, were, rope is not to be let out with a around his as it warden, with one end in the hands of the to be hauled back man, caprice go at the of that officer. He must out a free and remain a free man until he breaks the condition of his pardon. enjoy blessings He must the and benefits that belong to an until the American citizen he has violated law may of his release. His character be tarnished and his reputation by imprisonment, rights a soiled his but his as Moore, 496, 500; unimpaired. [People citizen are 62 Mich (1886).] 29 NW 80 considerations, the it foregoing On the basis of is the understanding sense most obvious to the common provide the Constitution does not the Governor the power to revoke an unconditional commutation.

Moreover, sought by the to be purpose accomplished pardon power the does not counsel a different result. Speaker, See House 443 Mich at 580. We have explained are clem- “[c]ommutations acts individualized ency, typically prisoner’s personal motivated jail characteristics and behavior in and are prison” or “aimed at benefiting prisoner.” the released Kent Co Prosecutor, 323, Similarly, at Chamber- “ lain that a explained pardon grace, ‘is an act of from the proceeding power intrusted with the execution laws, which the individual on it exempts whom is the punishment bestowed from the law inflicts for a ” Chamberlain, crime he has committed.’ 104 Mich at (7 Pet) 441, Wilson, quoting 150, United States v 32 US 150; L8 Ed 640 purposes provide These no indication that the pardon power grant was intended to the Governor such wide discretion that a commutation could any be revoked at time upon Governor’s whim. Accordingly, neither “the sense most obvious to the common understanding” purpose sought nor “the Opinion 495 Mich the Court 577, Mich at House Speaker, be accomplished,”

to 5, grants § art 580, indicates that Const There- a commutation. revoke Governor fore, may hold that the Governor revoke we commutation.8 completed

IV CONCLUSION interpretation conclude that the and exercise of We 5, § 14 are under Const powers Governor’s before this Court. The justiciable questions properly given grant is commutations 5, 14; however, § does not under article Constitution validly give the Governor revoke a commutation is Additionally, complete commutation. Governor, it signed by signed when Secretary State, and affixed with the Great Seal. Therefore, signed because the Governor com- plaintiffs Secretary State, mutation and it to the delivered Seal, signed where it was and affixed with the Great an irrevocable commutation of his plaintiff judgment sentence. we reverse the of the Accordingly, Court of order the of Corrections Appeals, Department sentence to a life sen- plaintiffs parolable to reinstate tence, jurisdiction and remand of the plaintiff board. parole

Young, C.J., Markman, JJ., Kelly, and Viviano con J. Cavanagh, curred with J., took no in the decision because part McCORMACK,

of her involvement in the case. prior revoke Because we hold that the Governor does not have the commutation, plaintiffs argument completed we need not address that jeopardy the revocation of his commutation was a violation of the double clauses, Const, 1963, 1, 15, plaintiffs § Am V and Const art due US rights, Const, § process US Am XTVand Const Makowski Governor Opinion Concurring Zahra, J. con- majority opinion J. ZAHRA, (concurring). a justiciable presents this case correctly cludes endeavoring interpret I that our issue, agree offend the does not commutation of the bounds with the agree I also doctrine. separation-of-powers com- irrevocably Granholm majority that Governor her to undo trying before muted the sentence plaintiffs however, disagree I because separately, I write decision. the moment at which regarding the majority with majority con- becomes final. While be until it is may that a commutation revoked cludes I Michigan, of the State of with the Great Seal affixed becomes final when conclude that a commutation it. governor signs in the seminal country law student reads

Every Marbury v Madi- Supreme United States Court case son,1 ably Marbury majority opinion explains, As the of nine commissions issued to validity concerned the he was President John Adams as justices peace their intended leaving office that were not delivered to use professors typically Marbury While recipients. in case judiciary’s government, on the role expound Marbury the rare situation in which is rel- presents . of an execu- holding regarding finality evant for its in tive act. to Chief Justice John Marshall According exercised, Marbury, a has been when the last “power act, person power, from the required possessing It cannot be performed[.]”2 gainsaid been and, power,3 alone the commutation possesses last act .. .”4 Marbury, signature. “[t]his as (1 Cranch) 137; Madison, Marbury 2 L 5 US Ed 60 2 Id. at 157. 5, § Const 4 Marbury, 5 US at 157. 495 Mich 465 Concurring Opinion by Zahra, J.

Thus, had Governor Granholm exercised commuta- tion as soon as she her on placed signature plaintiffs commutation. majority holds that a commutation becomes secretary

irrevocable once the of state affixes the Great Seal. It reaches this conclusion it because attaches particular weight Legislature’s to the command in MCL 2.44 that the Great Seal be applied commutations number of other documents. But the majority fails to the Marbury consider Court’s discussion of the Seal, United States which had to be applied justices commissions for the of the peace. Chief Justice wrote, Marshall signature “[t]he is a warrant affix- commission; ing great seal to and the great seal to be only to an instrument which is com- affixed words, In plete.”5 other Chief Justice opined Marshall that the United States Seal authenticates a document that has become final upon receiving the president’s signature. I attach the same significance Michigan’s Seal, Great but no more.

In reaching his conclusion in Marbury, Chief Justice Marshall attached particular significance to the man- date imposed secretary on the of state: “The commis- sion being signed, subsequent of duty secretary law, of state is prescribed by and not to be guided by the will of the president.”6 The United Secretary States duty ministerial; State’s he had no discretion to do anything other than seal the commission and deliver it. Likewise, MCL 2.44 Michigan’s orders secretary state affix commutation;7 the Great Seal to a it added). Id. at 158 (emphasis 6 Id. 2.44(d) (“An impression placed great seal shall be MCL on sentences.”) following documents but no others: .. . Commutations added). (emphasis v Governor Makowski by Concurring Opinion Zahra, J. secretary of state to the discretion no further provides a commuta- once emphasis: This bears governor. or the secretary requires 2.44 signed, MCL tion has been not Seal, statute does and the to affix the Great of state Justice Marshall it. Chief stop the governor empower act, “a ministerial the seal affixing the act of called for a officer enjoins particular on a the law which imposes In the law Michigan, purpose.”8 particular state, and he or she secretary of on the duty ministerial exercises his governor once the the task complete must discretion.9 or her an distinction important Court drew Marbury the document’s finality act’s an executive

between said, is, “It there- Marshall Chief Justice completion. court, that when a fore, decidedly opinion president, signed commission has been is com- made; and that the commission is appointment of the United States been when the seal plete, our again, of state.”10 Once secretary affixed to it effective the commutation became case is on all fours: pen as Governor Granholm’s and irrevocable as soon made. The docu- left the commutation was page—the 8 Marbury, 5 US at 158. upon concluding discretion- that an executive act is final After discretion, proceeded to exercise of that Chief Justice Marshall

holder’s being necessary complete possibility a of the seal’s discuss necessity, if the commissions document. He said that even the seal was supposed, final facts before him: “If it should he were still under the necessary, only validity solemnity affixing of the seal is still, commission, completion appointment, an but even to the made, appointment and the commission is the seal is affixed the is when by law; solemnity required no other act is to he valid. No other part government.” Marbury, performed US at 158-159. We are on the presented of this case does not turn with the same situation. The outcome receiving governor’s signa upon is final on whether accomplished both were or when the Great Seal is affixed because ture attempted revoke the commutation. Granholm before Governor 10Marbury, 5 US at 162. 495 Mich 465 Concurring Opinion by Zahra, J.

ment evidencing the commutation requires the Great Seal for completion, but the executive’s discretion has already been exercised.

The majority’s reliance on 2.44, MCL rather than Marbury’s “last act” analysis, can be traced to differ- ences between the state and federal constitutions. Spe- cifically, the Michigan Constitution the gover- makes nor’s clemency power “subject to procedures regulations prescribed by law.”11The majority suggests that the requirement in MCL 2.44 that the Great Seal be applied to commutations constitutes a procedure or regulation prescribed by law and that a commutation is incomplete and ineffective without the seal. I conclude, however, that MCL 2.44 is not the type procedure or regulation contemplated by that constitutional provi- sion.

Drawing from the Constitutional Convention de- bates, the majority opinion explains at length how the “practice and procedure” language came to exist 5, § article 14 of the Michigan Constitution. The “practice procedure” and language reflects the del- egates’ concern governor that the could not deal with an unfiltered influx of clemency applications. As a solution, the delegates proposed ways that the Legis- lature could regulate the application process. In fact, an earlier draft of the language stated that pardon power was “subject to regulations provided by law relative to the manner applying pardon.”12 for Thus, the “practice procedure” language refers to the Legislature’s control of the application process, not to the Legislature’s ability to create a point of finality different from the “last analysis act” that had stood for 160 years. 5, § Const 14. Record, 1 Official 1961, p Constitutional Convention Makowski v Governor Concurring Opinion by J. Zahra,

Significantly, Legislature up has taken the con- by enacting stitutional invitation several provision’s a procedures that candidate must before be- complete for coming eligible any MCL type clemency. 791.243 and MCL 791.244 all for require applications pardons, reprieves, and to be the parole commutations filed with board and a prescribe lengthy hearing interview and procedure any in- applicant. provisions then struct the board parole to transmit a recommendation governor for a final Thus, Legisla- decision. ture has provided practice procedure through which clemency all applicants pass, must which is consistent with the Constitutional Convention del- egates’ that clemency concern applications should not reach the governor unfiltered.

Finally, I am concerned that the majority’s holding leaves our jurisprudence very with the problem that the majority opinion identifies as a flaw in the defendants’ argument. Namely, if a governor commutes sentence but the seal is not affixed to the commutation before that governor office, leaves then nothing stops the incoming governor from revoking commutation as soon as he or she takes office. The same be would true for any of acts requiring Great Seal under MCL 2.44, including appointments, commissions, and extra- hand, ditions. On the other remaining faithful to Mar- bury’s principled holding prevents governor new from reversing revoking or a prior governor’s unsealed ex- ecutive actions.

In sum, I would adhere to Marbury’s “last act” analysis and conclude that the been act, exercised “when the last from the required person possessing the power, performed[.]”13 has been required The last act from the Governor —the holder of ^[13] Marbury, 5 US at 495 Mich Opinion Concurring Zahra, J. commuta- signing the commutation —was exercised point, At that

tion. life. parolable commuted sentence was plaintiffs

Case Details

Case Name: Makowski v. Governor

Court Name: Michigan Supreme Court

Date Published: Jun 3, 2014

Citation: 852 N.W.2d 61

Docket Number: Docket 146867

Court Abbreviation: Mich.