PEOPLE v PEELER; PEOPLE v BAIRD; PEOPLE v LYON
Docket Nos. 163667, 163672, and 164191
Michigan Supreme Court
Decided June 28, 2022
509 Mich. ___
Chief Justice: Bridget M. McCormack; Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kathryn L. Loomis
PEOPLE v PEELER
PEOPLE v BAIRD
PEOPLE v LYON
Docket Nos. 163667, 163672, and 164191. Argued on application for leave to appeal May 4, 2022. Decided June 28, 2022.
Nancy Peeler (Docket No. 163667), Richard L. Baird (Docket No. 163672), and Nicolas Lyon (Docket No. 164191) were charged with various offenses in the Genesee Circuit Court for actions they took as state employees during the Flint water crisis. The cases did not proceed by the prosecutor issuing criminal complaints and then holding preliminary examinations in open court at which defendants could have heard and challenged the evidence against them. Instead, at the request of the Attorney General‘s office, the prosecutor proceeded under
In a unanimous opinion by Chief Justice MCCORMACK, the Supreme Court, in lieu of granting leave to appeal, held:
- The one-man grand-jury statutes were enacted because (1) law enforcement agencies are sometimes unable effectively and lawfully to enforce the laws, particularly with regard to corruption by government officials and (2) the common-law 23-man grand jury is cumbersome and ineffective in the investigation of those crimes.
MCL 767.3 andMCL 767.4 authorize a judge to investigate, subpoena witnesses, and issue arrest warrants. Specifically,MCL 767.3 provides that whenever by reason of the filing of any complaint, which may be upon information and belief, or upon the application of the prosecuting attorney or attorney general, any judge of a court of law and of record has probable cause to suspect that any crime, offense, or misdemeanor has been committed within their jurisdiction and that any persons may be able to give any material evidence respecting such suspected crime, offense, or misdemeanor, the judge may order that an inquiry be made into the matter and conduct the inquiry. In turn,MCL 767.4 provides that if upon such inquiry the judge shall be satisfied that any offense has been committed and that there is probable cause to suspect any person to be guilty thereof, the judge may cause the apprehension of that person by proper process and, upon the return of the process served or executed, the judge having jurisdiction shall proceed with the case, matter, or proceeding in like manner as upon formal complaint.MCL 767.4 further provides, in relevant part, that the judge conducting the inquiry underMCL 767.3 is disqualified from acting as the examining magistrate in connection with the hearing on the complaint or indictment and from presiding at any trial arising therefrom. MCL 767.4 provides a right to a preliminary examination.MCL 767.4 refers to a “hearing on the complaint or indictment” and disqualifies the judge who conducted the inquiry from being the “examining magistrate” at that hearing. It is unclear what “hearing” that language could be referring to other than a preliminary examination. Moreover, “examining magistrate” is a term of art used in other statutes; it refers to a judge who conducts a preliminary examination. The statute further provides that the judge should treat a one-man-grand-jury-chаrged case the same as a case in which a formal complaint has been filed. Thus, a judge should treat a case brought using a one-man grand jury the same as a case in which a formal complaint is filed: an arrest warrant is issued after the formal complaint is filed, the accused is apprehended, and the court holds a preliminary examination before the information may issue. This conclusion is also supported by historical practice; preliminary examinations have been routinely conducted after a one-person grand jury returned an indictment. The preliminary examination is not redundant in this situation, even though the statute requires the judge to find probable cause to believe the defendant committed the crime, because the probable causе necessary for a bindover is greater than that required for an arrest. In these cases, Peeler and Baird were entitled to a preliminary examination underMCL 767.4 . Accordingly, the Genesee Circuit Court erred by denying Peeler‘s and Baird‘s motions to remand for a preliminary examination.
While the citizens grand-jury statutes, MCL 767.24(1) andMCL 767.23 , specifically authorize grand juries to issue indictments,MCL 767.4 , in its current form, does not. In 1949, the Legislature authorized one-man grand juries to issue indictments, but it later repealed that provision; the current version ofMCL 767.4 cannot be interpreted to authorize what the Legislature has explicitly rejected. Further,MCL 767.4 clearly authorizes a judge to issue an arrest warrant, and it did not explicitly grant that authorization while at the same time implicitly authorizing a judge to issue an indictment. As further evidence that a one-man grand jury cannot initiate charges by issuing indictments, the citizens grand-jury statutes require a jury oath—a hallmark of the jury process—while the one-man grand-jury statutes do not have that requirement. For those reasons,MCL 767.3 andMCL 767.4 authorize a judge to investigate, subpoena witnesses, and issue arrest warrants, but they do not authorize a judge to issue an indictment initiating a criminal prosecution. Judge Newblatt lacked authority underMCL 767.3 andMCL 767.4 to issue indictments. Accordingly, the Genesee Circuit Court erred by denying Lyon‘s motion to dismiss, and there was no need to address Lyon‘s constitutional arguments. Although Peeler and Baird joined in Lyon‘s motion to dismiss in the Genesee Circuit Court, the only relief they requested in the Michigan Supreme Court was the reversal of the circuit court‘s order denying their motions to remand for a preliminary examination.
Genesee Circuit Court orders denying Peeler‘s and Baird‘s motions to remand for a prеliminary examination and denying Lyon‘s motion to dismiss reversed; cases remanded to the Genesee Circuit Court for further proceedings.
Justice BERNSTEIN, concurring, agreed fully with the Court‘s opinion but wrote separately to address the significant procedural interests implicated in these cases. The Attorney General‘s office invoked obscure statutes, specifically—
Justice CLEMENT did not participate due to her prior involvement as chief legal counsel for Governor Rick Snyder.
FILED June 28, 2022
STATE OF MICHIGAN
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v NANCY PEELER, Defendant-Appellant. No. 163667
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RICHARD LOUIS BAIRD, Defendant-Appellant. No. 163672
BEFORE THE ENTIRE BENCH (except CLEMENT, J.)
McCORMACK, C.J.
Nancy Peeler, Richard L. Baird, and Nicolas Lyon were state employees investigated and charged for their roles in the Flint water crisis. But for some reason, they were not charged the way that almost everyone in Michigan is charged—with a criminal complaint issued by a prosecutor and followed by a preliminary examination in open court at which the accused can hear аnd challenge the prosecution‘s evidence. Instead, the prosecution chose to proceed with these cases using what have become known as the “one-man grand jury” statutes,
We consider two questions about the one-man grand-jury statutes. First, if charged by a one-man grand jury, is a defendant entitled to a preliminary examination? Second, can a judge issue an indictment authorizing criminal charges against a defendant?
I. FACTS AND PROCEDURAL HISTORY
These prosecutions have an extremely long procedural history, most of which is not germane to the questions we answer here. Peeler, a former manager of the Early Childhood Health Section of the Michigan Department of Health and Human Services (DHHS), is charged with two counts of misconduct in office (a five-year felony),
In December 2019, the Attorney General‘s office requested the appointment of a one-person grand jury. Genesee Circuit Chief Judge Pro Tem Duncan Beagle granted the motion and appointed Genesee Circuit Judge David Newblatt to act as the one-person grand
In January 2021, Newblatt issued indictments against Peeler and Baird, and the cases were then assigned to Genesee Circuit Judge Elizabeth Kelly. Peeler and Baird moved to remand their cases for a preliminary еxamination, but the trial court denied the motion, holding that “indictees have no right to [a] preliminary examination.” The Court of Appeals denied leave in both applications for lack of merit.
Judge Newblatt also issued an indictment against Lyon in January 2021. Lyon moved to dismiss, raising statutory arguments about the right to a preliminary examination, that the statutes do not confer charging authority upon a one-man grand jury, and that
Peeler and Baird filed applications for leave to appeal in this Court, and Lyon filed a bypass apрlication here, seeking leave to appeal prior to a decision by the Court of Appeals. We ordered oral argument on the application in each case. People v Peeler, 509 Mich ___ (2022); People v Baird, 509 Mich ___ (2022); People v Lyon, 509 Mich ___ (2022). In Peeler and Baird, we allowed further briefing on “whether a defendant charged with a felony after a proceeding conducted pursuant to
(1) whether
MCL 767.3 andMCL 767.4 violate Michigan‘s constitutional requirement of separation of powers,Mich Const 1963, art 3, § 2 ; (2) whether those statutes confer charging authority on a member of the judiciary; (3) whether a defendant charged after a proceeding conducted pursuant toMCL 767.3 andMCL 767.4 is entitled to a preliminary examination; and (4) whether the proceedings conducted pursuant toMCL 767.3 andMCL 767.4 violated due process,Mich Const 1963, art 1, § 17 . [Lyon, 509 Mich 16 (2022).]
II. LEGAL BACKGROUND
Whether
Enacted in 1917,
Despite its nickname, the word “juror” makes no appearance in the statutes, and the term “grand jury” appears only twice. See
Whenever by reason of the filing of any complaint, which may be upon information and belief, or upon the application of the prosecuting attorney or attorney general, any judge of a court of law and of record shall
have probable cause to suspect that any crime, offense or misdemeanor has been committed within his jurisdiction, and that any persons may be able to give any material evidence respecting such suspected crime, offense or misdemeanor, such judge in his discretion may make an order directing that an inquiry be made into the matters relating to such complaint . . . and thereupon conduct such inquiry. [Emphasis added.]
If upon such inquiry the judge shall be satisfied that any offense has been committed and that there is probable cause to suspect any person to be guilty thereof, he may cause the apprehension of such person by proper process and, upon the return of such process served or executed, the judge having jurisdiction shall proceed with the case, matter or proceeding in like manner as upon formal complaint. The judge conducting the inquiry under section 3 shall be disqualified from acting as the examining magistrate in connection with the hearing on the complaint or indictment, or from presiding at any trial arising therefrom, or from hearing any motion to dismiss or quash any complaint or indictment, or from hearing any charge of cоntempt under section 5, except alleged contempt for neglect or refusal to appear in response to a summons or subpoena. [Emphasis added.]
III. ANALYSIS
A. RIGHT TO A PRELIMINARY EXAMINATION
We agree with Peeler and Baird that the statutory language provides a right to a preliminary examination. We have said so before, although in dictum: In People v Duncan, 388 Mich 489, 498-499; 201 NW2d 629 (1972), overruled in part on other grounds by People v Glass, 464 Mich 266 (2001), we identified
There is more evidencе in historical practice. We see in our cases evidence that preliminary examinations were routinely conducted after a one-person grand jury returned an indictment. See, e.g., People v Bellanca, 386 Mich 708, 711-712; 194 NW2d 863 (1972)
The Attorney General‘s office believes that because the statutory scheme requires the judge to make a finding of probable cause that the defendant committed the crime, a preliminary examination would be redundant. After all, a preliminary examination‘s main function is for a court to determine whether there is probable cause. But the argument confuses some basics. Probable cause to arrest (which
The circuit court erred by denying Peeler‘s and Baird‘s motions to remand for a preliminary examination. We therefore reverse the circuit court‘s order denying those motions.2
Lyon brings another challenge to the application of
Thе word “indictment” appears four times in the statute, and its use is important:
The judge conducting the inquiry under section 3 shall be disqualified from acting as the examining magistrate in connection with the hearing on the complaint or indictment, or from presiding at any trial arising therefrom, or from hearing any motion to dismiss or quash any complaint or indictment, or from hearing any charge of contempt under section 5, except alleged contempt for neglect or refusal to appear in response to a summons or subpoena. . . . Except in cases of prosecutions for contempt or perjury against witnesses who may have been summoned before the judge conducting such inquiry, or for the purpose of determining whether the testimony of a witness examined before the judge is consistent with or different from the testimony given by such witness before a court in any subsequent proceeding, or in cases of disciplinary action against attorneys and counselors in this state, any judge conducting the inquiry, any prosecuting attorney and other persons who may at the discretion of the judge be admitted to such inquiry, who shall while conducting such inquiry or while in the services of the judge or after his services with the judge shall have been discontinued, utter or publish any statement pertaining to any information or evidence involved in the inquiry, or who shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, or who shall disclose that any person has been questioned or summoned in connection with the inquiry, who shall disclose or publish or cause to be published any of the proceedings of the inquiry otherwise than by issuing or executing processes prior to the indictment, or shall disclose, publish or cause to be published any comment,
opinion or conclusions related to the proceedings of the inquiry, shall be guilty of a misdemeanor punishable by imprisonment in the county jail not more than 1 year or by a fine of not less than $100.00 nor more than $1,000.00, or both fine and imprisonment in the discretion of the court, and the offense when committed by a public official shall also constitute malfeasance in office. [
MCL 767.4 (emphasis added).]
Perhaps not surprisingly, the statute never says a judge may issue an indictment, in specific contrast to the statutes governing citizens grand juries. Cf.
Indeed, the Legislature amended the statutory scheme to authorize judges to issue indictments, but later removed that authority. In 1949, the Legislature amended the statute to provide for three-judge grand juries and gave them express authority to issue indictments (“Provided, That orders returning Indictments shall be signed by 3 judges.“). See
And the statute is clear about what it does authorize a judge to do. If, after conducting the inquiry, “the judge shall be satisfied that any offense has been committed and that there is probable cause to suspect any person to be guilty thereof, he may cause the apprehension of such person by proper process . . . .”
And while the word “indictment” can be understood narrowly to mean only “[t]he formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person,” Black‘s Law Dictionary (11th ed), as in
“Indictment” means 1 or more of the following:
(i) An indictment.
(ii) An information.
(iii) A presentment.
(iv) A complaint.
(v) A warrant.
(vi) A formal written accusation.
(vii) Unless a contrary intention appears, a count contained in any document described in subparagraphs (i) through (vi).
This definition encompasses much more than a formal indictment—a charging document initiating a сriminal prosecution.
The circuit court and the Attorney General‘s office have emphasized the purported parallels between the one-man grand-jury and the citizens grand-jury procedures. Thus, the argument goes, because the citizens grand-jury statutes authorize the issuance of indictments, so too must
To be sure, judges serving as one-person grand jurors have issued indictments following investigations. See, e.g., Colacasides, 379 Mich at 77-78 (“These documents were the evidentiary basis upon which appellant had been indicted by Grand Juror Piggins for conspiracy to bribe a police officer.“) (emphasis added); Green, 322 Mich App at 681 (“Defendant was indicted by a one-person grand jury . . . .“). But the historical practice has been mixed because the procedure has also been used to authorize warrants. See, e.g., Bellanca, 386 Mich at 711 (“[T]he ‘grand juror’ ordered the issuance of a warrant for the arrest of the defendant so that he might be prosecuted for perjury and such warrant issued on that day.“); People v Dungey, 356 Mich 686, 687, 688; 97 NW2d 778 (1959) (“[D]efendants in this case were tried in the circuit court of Genesee county on an information charging them with conspiracy to violate the laws of the State relating to the suppression of gambling” after “an investigation conducted in said county by a visiting
For these reasons, we conclude that
IV. CONCLUSION
Bridget M. McCormack
Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v NANCY PEELER, Defendant-Appellant. No. 163667
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RICHARD LOUIS BAIRD, Defendant-Appellant. No. 163672
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v NICOLAS LYON, Defendant-Appellant. No. 164191
BERNSTEIN, J. (concurring).
I concur fully with the Court‘s opinion but write separately to address the significant interests implicated in this case. Today, this Court recognizes what we have always known
However, the Attorney General has invoked obscure statutes,
Clearly, and as this Court‘s decision aptly recognizes, a preliminary examination serves a crucial function for criminal defendants in our adversarial system. It allows defendants to learn about the specific criminal charges they face, confront allegedly incriminating evidence, and prepare a defense. The prosecution argues that the Legislature, through the statutes in quеstion, has given it the discretion to opt out of a preliminary examination, as the prosecution did here. This assertion is quite alarming, and were it true, the prosecution would have the power to decide whether to grant a defendant permission to probe and challenge the charges against them before being formally indicted. Such a result runs afoul of the basic notions of fairness that underlie our adversarial system. I do not believe we can tolerate such a procedural offense.
Yet the prosecution of these defendants must adhere to proper procedural requirements because of the magnitude of the harm that was done to Flint residents. Proper procedure is arguably most necessary in cases of great public significance, particularly where the сharged crimes have been characterized as especially heinous and where the court proceedings are likely to be heavily scrutinized by the general public. In such cases, adherence to proper procedure serves as a guarantee to the general public that Michigan‘s courts can be trusted to produce fair and impartial rulings for all defendants, regardless of the severity of the charged crime.
The tenets of our system of criminal procedure are only as strong as our commitment to abide by them. Indeed, there would be little credibility to a criminal process that purports to strike a fair balance between adversaries if the guarantees underpinning that criminal
In the end, such a prominent criminal prosecution will have a significant impact on the public at largе. This criminal prosecution will serve as a historical record. Whether we realize it or not, courts provide historical context to consequential moments in history. See Rhodes, Legal Records as a Source of History, 59 ABA J 635, 635 (June 1973) (“The lawyer unwittingly is an agent of history.“). What is happening before us cannot be understated. Former state officials, some of whom were elected, are being criminally prosecuted for their alleged roles in perpetrating an egregious injustice that resulted in the various ailments and even deaths of the people they served or represented. Future generations will look to this record as a critical and impartial answer to the question: what happened in Flint? For both their sake and ours, we should leave no question unanswered and no stone unturned.
For these reasons, I concur.
Richard H. Bernstein
CLEMENT, J., did not participate due to her prior involvement as chief legal counsel for Governor Rick Snyder.