Allen, J. James Jackson, D.O., and James Jackson D.O., P.C.
(hereinafter defendants), appeal as of right from an order of superintending control, entered by the Ingham Circuit Court on October 12, 1982, dissolving the district court’s order of August 6, 1982, changing venue from Ingham County to Muskegon County. We affirm the circuit court order.
On May 3, 1982, a criminal complaint was issued in Ingham County against defendants charging them with 55 counts of filing false Medicaid claims, contrary to MCL 400.607; MSA 16.614(7). On June 10, 1982, subsequent to the arraignment in district court, defendants moved for change of venue to Muskegon County, alleging that: (1) all of the Medicaid recipients as to whom they were alleged to have filed false claims and all of the witnesses whom defendants would call in their defense resided in Muskegon County, (2) all of the alleged criminal acts took place in Muskegon County, (3) defendants’ offices and practice were in Muskegon County, and (4) should defendants be required to defend the action in Ingham County, their patients would be deprived of medical care during the individual defendant’s absence and defendants would suffer economic hardship. Defendants’ motion for change of venue from the district court in Ingham County to the district court in Muskegon County was granted by District Court 54A in an order dated August 6, 1982.
The Attorney General subsequently filed in Ingham Circuit Court a complaint for superintending control or, in the alternative, a motion for leave to
appeal, requesting that the district court’s order changing venue be vacated. The circuit court granted the requested relief in an order of superintending control entered October 12, 1982.
The first issue we must address is whether a district court may issue an order changing venue in a felony case.
MCL 762.7; MSA 28.850 provides in part:
"Each court of record having jurisdiction of criminal cases upon good cause shown by either party may change the venue in any cause pending therein, and direct the issue to be tried in the circuit court of another county, and make all necessary rules and orders for the certifying and removing such cause, and all matters relating thereto, to the court in which such issue shall be ordered to be tried, and the court to which such cause shall be so removed shall proceed to hear, try and determine the same, and execution may thereupon be had in the same manner as if the same had been prosecuted in the court having original jurisdiction of such cause * *
While district courts are courts of record, MCL 600.8101; MSA 27A.8101, we believe that the statute applies only to circuit courts in felony cases. The statute speaks of changing venue in a "cause pending” and of "directing] the issue to be tried in the circuit court of another county”. The terms "trial”, "circuit courts” and "issue to be tried” are used throughout the statute.
In
Bresnahan v Cass Circuit Judge,
154 Mich 491, 492; 117 NW 1053 (1908), the Michigan Supreme Court concluded that, based upon similar language of a predecessor statute, an order changing venue before the cause was at issue,
i.e.,
before the preliminary examination, was premature, stating:
"This statute plainly imports- that what is to be transferred from one county to another is a case at issue, as it refers to the court to which the case is transferred as the court in which such issue shall be ordered to be tried, and the duty of that court to which the cause is transferred is defined, namely, to proceed to hear, try, and determine the same. There is abundant reason for this. The ground of the application for a change of venue of the present case is the claim that it would be impossible to secure a jury. Unless an issue of fact is made, no jury will be called upon to act in the case. Hence no necessity for a change of venue.”
We note that other jurisdictions have reached the same conclusion concerning their criminal venue provisions. See
Hudley v State,
36 Ark 237, 240 (1880);
Ex Parte Livingston,
116 Fla 640; 156 So 612 (1939);
State v Burns,
79 RI 130; 84 A2d 801 (1951); 22 CJS, Criminal Law, § 202, p 533.
The district court was without authority to grant a motion for change of venue before the preliminary examination was held in this case. The circuit court’s order of superintending control was proper based upon the lower court’s having exceeded its powers.
East Jordan Iron Works v Workers’ Compensation Appeal Board,
124 Mich App 324; 335 NW2d 23 (1983).
While we affirm the circuit court, we find it necessary to address the power of the circuit court to change venue due to the convenience of the parties, since this issue is likely to arise if defendants are bound over to circuit court for trial.
Venue in this case would be proper either in Muskegon County or Ingham County. See MCL 400.611; MSA 16.614(11) and MCL 762.8; MSA 28.851. The prosecution’s discretion in choosing which county to bring the action, however, is not inviolate. Venue may be changed by the circuit
court for "good cause shown” by either party under MCL 762.7; MSA 28.850.
No definition of "good cause” is contained in the statute. It appears from case law that generally the focus is on whether the defendant, or the people where the motion is brought by the prosecution, can secure a fair and impartial trial in the jurisdiction where the action is brought. See, generally, 8 Michigan Law & Practice, Criminal Law, § 36, p 113; 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), §§ 74-80, pp 140-146.
We could locate no Michigan authority which specifically addresses whether "good cause” may include the convenience of the parties or the witnesses. Mention was made in the case of
People v Rich,
237 Mich 481, 486; 212 NW 105 (1927), that the prosecution’s allegation that a fair and impartial trial could not be obtained in the county where the action was brought without great expense to the taxpayers was insufficient, standing alone, to justify a change of venue. We note that GCR 1963, 403, which states that venue may be changed for the convenience of the parties or witnesses, applies only to civil cases.
We give no weight to the dicta in
People v Lee,
334 Mich 217; 54 NW2d 305 (1952), relied upon by defendants.
In that case, the Court indicated some willingness to entertain a claim
following trial
that the venue had deprived the defendants of due process rights, including the rights to compel the
attendance of witnesses and to confront witnesses. Here, defendants make no claims that venue in Ingham County will deprive them of these constitutional rights; rather the allegations contained in defendants’ motion for change of venue concern the convenience of defendants and their witnesses.
In
People v Peterson,
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Allen, J. James Jackson, D.O., and James Jackson D.O., P.C.
(hereinafter defendants), appeal as of right from an order of superintending control, entered by the Ingham Circuit Court on October 12, 1982, dissolving the district court’s order of August 6, 1982, changing venue from Ingham County to Muskegon County. We affirm the circuit court order.
On May 3, 1982, a criminal complaint was issued in Ingham County against defendants charging them with 55 counts of filing false Medicaid claims, contrary to MCL 400.607; MSA 16.614(7). On June 10, 1982, subsequent to the arraignment in district court, defendants moved for change of venue to Muskegon County, alleging that: (1) all of the Medicaid recipients as to whom they were alleged to have filed false claims and all of the witnesses whom defendants would call in their defense resided in Muskegon County, (2) all of the alleged criminal acts took place in Muskegon County, (3) defendants’ offices and practice were in Muskegon County, and (4) should defendants be required to defend the action in Ingham County, their patients would be deprived of medical care during the individual defendant’s absence and defendants would suffer economic hardship. Defendants’ motion for change of venue from the district court in Ingham County to the district court in Muskegon County was granted by District Court 54A in an order dated August 6, 1982.
The Attorney General subsequently filed in Ingham Circuit Court a complaint for superintending control or, in the alternative, a motion for leave to
appeal, requesting that the district court’s order changing venue be vacated. The circuit court granted the requested relief in an order of superintending control entered October 12, 1982.
The first issue we must address is whether a district court may issue an order changing venue in a felony case.
MCL 762.7; MSA 28.850 provides in part:
"Each court of record having jurisdiction of criminal cases upon good cause shown by either party may change the venue in any cause pending therein, and direct the issue to be tried in the circuit court of another county, and make all necessary rules and orders for the certifying and removing such cause, and all matters relating thereto, to the court in which such issue shall be ordered to be tried, and the court to which such cause shall be so removed shall proceed to hear, try and determine the same, and execution may thereupon be had in the same manner as if the same had been prosecuted in the court having original jurisdiction of such cause * *
While district courts are courts of record, MCL 600.8101; MSA 27A.8101, we believe that the statute applies only to circuit courts in felony cases. The statute speaks of changing venue in a "cause pending” and of "directing] the issue to be tried in the circuit court of another county”. The terms "trial”, "circuit courts” and "issue to be tried” are used throughout the statute.
In
Bresnahan v Cass Circuit Judge,
154 Mich 491, 492; 117 NW 1053 (1908), the Michigan Supreme Court concluded that, based upon similar language of a predecessor statute, an order changing venue before the cause was at issue,
i.e.,
before the preliminary examination, was premature, stating:
"This statute plainly imports- that what is to be transferred from one county to another is a case at issue, as it refers to the court to which the case is transferred as the court in which such issue shall be ordered to be tried, and the duty of that court to which the cause is transferred is defined, namely, to proceed to hear, try, and determine the same. There is abundant reason for this. The ground of the application for a change of venue of the present case is the claim that it would be impossible to secure a jury. Unless an issue of fact is made, no jury will be called upon to act in the case. Hence no necessity for a change of venue.”
We note that other jurisdictions have reached the same conclusion concerning their criminal venue provisions. See
Hudley v State,
36 Ark 237, 240 (1880);
Ex Parte Livingston,
116 Fla 640; 156 So 612 (1939);
State v Burns,
79 RI 130; 84 A2d 801 (1951); 22 CJS, Criminal Law, § 202, p 533.
The district court was without authority to grant a motion for change of venue before the preliminary examination was held in this case. The circuit court’s order of superintending control was proper based upon the lower court’s having exceeded its powers.
East Jordan Iron Works v Workers’ Compensation Appeal Board,
124 Mich App 324; 335 NW2d 23 (1983).
While we affirm the circuit court, we find it necessary to address the power of the circuit court to change venue due to the convenience of the parties, since this issue is likely to arise if defendants are bound over to circuit court for trial.
Venue in this case would be proper either in Muskegon County or Ingham County. See MCL 400.611; MSA 16.614(11) and MCL 762.8; MSA 28.851. The prosecution’s discretion in choosing which county to bring the action, however, is not inviolate. Venue may be changed by the circuit
court for "good cause shown” by either party under MCL 762.7; MSA 28.850.
No definition of "good cause” is contained in the statute. It appears from case law that generally the focus is on whether the defendant, or the people where the motion is brought by the prosecution, can secure a fair and impartial trial in the jurisdiction where the action is brought. See, generally, 8 Michigan Law & Practice, Criminal Law, § 36, p 113; 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), §§ 74-80, pp 140-146.
We could locate no Michigan authority which specifically addresses whether "good cause” may include the convenience of the parties or the witnesses. Mention was made in the case of
People v Rich,
237 Mich 481, 486; 212 NW 105 (1927), that the prosecution’s allegation that a fair and impartial trial could not be obtained in the county where the action was brought without great expense to the taxpayers was insufficient, standing alone, to justify a change of venue. We note that GCR 1963, 403, which states that venue may be changed for the convenience of the parties or witnesses, applies only to civil cases.
We give no weight to the dicta in
People v Lee,
334 Mich 217; 54 NW2d 305 (1952), relied upon by defendants.
In that case, the Court indicated some willingness to entertain a claim
following trial
that the venue had deprived the defendants of due process rights, including the rights to compel the
attendance of witnesses and to confront witnesses. Here, defendants make no claims that venue in Ingham County will deprive them of these constitutional rights; rather the allegations contained in defendants’ motion for change of venue concern the convenience of defendants and their witnesses.
In
People v Peterson,
93 Mich 27, 30; 52 NW 1039 (1892), the Michigan Supreme Court held that a predecessor statute, How Stat 6468, identical in substance to MCL 762.6, was merely declaratory of the common-law power to change venue vested in the circuit courts. Case law from other jurisdictions, which is cited by the Attorney General, indicates that common law did not permit a change of venue for the convenience of the parties or witnesses.
In
People v Harris,
4 Denio 150, 152 (S Ct NY, 1847), the Court specifically addressed this issue, holding:
"The statute says this [change of venue] may be done in 'special cases;’ but it does not specify what those cases are. (2 RS 733, § 1.) We must look, therefore, to the established practice of the courts on this subject; which is, to allow a suggestion, and make an order, when it clearly appears, that a fair and impartial trial cannot be had in the county where the indictment was found.
The convenience of the prosecutor, the accused, or the witnesses, has never been allowed, either here or in England, as a ground of changing the place of trial in a criminal case; and we do not feel ourselves at liberty to make such a precedent. The statute has not introduced a new rule, the practice has been the same sine 1830, that it was before that time.”
(Emphasis supplied.)
The Court’s statement in
Seaton v State (On Rehearing),
115 Tex Crim 175, 176; 29 SW2d 375
(1930), also indicates that, under common law, the only basis for change of venue in a criminal case is the inability to obtain a fair and impartial trial:
"Venue is not subject to change upon the ground of convenience to witnesses or parties, nor to suit their pleasure; the object of same is to remove a trial from a situation inimical to a fair trial to all parties, and to remove same to another place where such condition does not exist.”
Finally, the courts of West Virginia have held that that state’s constitution and statute, which permit change of venue upon petition by the defendant for "good cause shown”, concerned the defendant’s ability to obtain a fair trial in the county where the offense occurred.
State v Wilson,
157 W Va 566; 202 SE2d 828 (1974);
State v Pratt,
244 SE2d 227, 230 (W Va, 1978).
We are persuaded by the above-cited authorities that "good cause” in MCL 762.7 concerns the ability to obtain a fair trial in the county where the action is brought. No Michigan authority has ever included the convenience of witnesses and parties as a valid ground for changing venue. While the circuit court has discretion to decide motions for change of venue, such discretion must be exercised in accordance with established principles of law.
People v Gage,
188 Mich 635, 641-642; 155 NW 464 (1915). We hold that, in criminal cases, as a matter of law, convenience to parties and witnesses is not within the meaning of the statute.
The circuit court order vacating the district court order changing venue is affirmed. The matter is remanded to the district court for further proceedings.