People v. Blachura

212 N.W.2d 182, 390 Mich. 326, 1973 Mich. LEXIS 145

• Court: Michigan Supreme Court
• Decided: November 20, 1973
• Docket: 6 May Term 1973, Docket No. 54,133
• Status: Published

Opinions

M. S. Coleman, J.

Plaintiff was called before an Oakland County grand jury. As a result of his testimony he was indicted on six counts of perjury. The jury trial ended with defendant being convicted on five counts.

In his motion for a new trial, defendant said that he had been denied the right to have counsel present during his examination before the grand jury. The circuit judge agreed finding such denial to be a violation of constitutional and statutory rights. A new trial was ordered as to two counts and the remaining three were dismissed with prejudice.

The prosecutor sought and was granted emergency leave to appeal by the Court of Appeals. Defendant was granted leave to appeal this decision of the Court of Appeals. In his own words, defendant "is appealing only the narrow issue of whether or not the Court of Appeals has jurisdiction” in this matter.

The resolution of the issue in this case requires an interpretation and meshing of various constitutional and statutory provisions in conjunction with the 1963 General Court Rules.

The matter is a case of first impression as to this Court.

Constitution

As all else herein flows from an interpretation of two sections of the 1963 Const, we begin with that aspect of the problem.

Art 6, § 4 provides in full:

"The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court. The supreme court shall not have the power to remove a judge.”¹

The full text of art 6, § 10 is:

"The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.”

Of primary importance are two basic rules of constitutional construction.

1. Every statement in a state constitution must be interpreted in the light of the whole document.

2. Because fundamental constitutional principles are of equal dignity, none must be so construed as to nullify or substantially impair another.

If art 6, § 4 and § 10 are not to be in conflict, § 4 must apply to the appellate jurisdiction of the Supreme Court, concerning which it may promulgate rules. Section 10 plainly applies to the Court of Appeals and just as plainly states that jurisdiction therein shall be provided by law.

We, therefore, look to the statutes to determine appellate jurisdiction in this matter.

Statutes

Two statutes are argued as being in conflict.

A statute last amended in 1942 is quoted often in argument. MCLA 770.12, MSA 28.1109 provides in part:

"A writ of error may be taken by and on behalf of the people of the state of Michigan from any court of record in said state direct to the supreme court thereof, in all criminal cases in the following instances, to wit:

"(a) From a decision or judgment quashing or setting aside any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which such indictment or information is founded.”

This statute was passed and last amended long before the 1963 Const became effective bringing with it a new court, the Court of Appeals.

Defendant argues that this provision explicitly limits the matters which the prosecution may bring for review to the Court of Appeals. He contends that the quashing of the three counts was not "based upon the invalidity or construction of the statute” but upon constitutional grounds. (Actually, it was on both grounds.) The prosecutor implies that this statute is outdated and superseded by art 6, § 10 of the 1963 Const and by the statute set forth in MCLA 600.308; MSA 27A.308 which provides in full:

"The court of appeals has jurisdiction on appeals from:

"(1) All final judgments from the circuit courts, court of claims, and recorder’s court, except judgments on ordinance violations in the traffic and ordinance division of recorder’s court. Appeals from final judgments from all other courts and from convictions for ordinance violations in the traffic and ordinance division of recorder’s court shall be taken to the circuit courts, upon which further review may be had only upon application for leave to appeal granted by the court of appeals.

"(2) Such other judgments or interlocutory orders as the supreme court may by rule determine.”

(The two statutes set forth above will hereinafter be referred to as 770.12 and 600.308.)

It is pertinent to this analysis to note that 770.12 was last amended in 1942, long before the new constitution established the Court of Appeals and therein directed that its jurisdiction should be established by law.

600.308 was written pursuant to that constitutional direction. GCR 1963, 801, also adopted pursuant to the new constitution, provides § 3 which is headed "Statutory Jurisdiction of Court of Appeals” and repeats the language of 600.308. It refers to all final judgments.

770.12, on the other hand, predated the 1963 Const and was addressed to old writs of error coming before the Supreme Court. It cannot logically be said that 770.12 is the answer to the constitutional directive to establish, by law, jurisdiction of the Court of Appeals. This Court finds inapplicable the cases decided by the Court prior to the existence of the Court of Appeals² and relied upon heavily by defendant. We do not believe this provision, now inapplicable to procedure in this Court, should be judicially rewritten so as to limit jurisdiction in the Court of Appeals.

MCLA 600.308 and GCR 1963, 801.3 give the Court of Appeals jurisdiction on appeals from all final judgments of the circuit courts. This obviously does not restrict the right of the people to appeal. GCR 1963, 806.1 says, in part, that in all cases "an aggrieved party shall have a right to appeal from all final judgments or final orders from the circuit courts * * * .” This obviously does not restrict the right of the people to appeal.³ GCR 1963, 806.2(2) gives the Court of Appeals the discretion to grant leave from any "judgment, order, act or failure to act by the circuit courts * * * which is not a final judgment appealable as of right.” This obviously does not restrict the right of the people to seek leave to appeal.

We are aware that GCR 1963, 801.1 says that when "review by the Supreme Court * * * is authorized by law, review shall be had by appeal to the Court of Appeals * * * .” Some argue that this provision renders 770.12 applicable to the lower court. We have expressed our belief that 770.12 constitutionally cannot and does not restrict our jurisdiction. Such review is, therefore, not authorized by law as required by the rule. GCR 1963, 801.1 also "refers only to the court and method of review and does not restrict, enlarge or change the right or scope of review provided by law, except as explicitly set out in these rules.” The right and scope of review in the Court of Appeals is set down in the constitution and such legislation and court rules as were enacted pursuant to it. We conclude that a statute referring to Supreme Court review and dealing with a how obsolete court structure and using terms Of art alien to many modern practitioners should not he viewed as the type of statute envisioned by the drafters of GCR 1963, 801.1. Indeed the contrary must be concluded by the wording of 801.3.

Summary

Art 6, § 10 provides that the. jurisdiction of the Court of Appeals be established by law. Pursuant to this directive the statute set forth in 600.308 was enacted providing in part for Court of Appeals jurisdiction over "all final judgments”. Thereafter, GCR 1963, 801.3 recognized 600.308 as the statute setting forth the jurisdiction of the Court of Appeals by incorporating the statutory language and designating that section as "Statutory Jurisdiction of Court of Appeals.”

We conclude that traditional legal reasoning and a common-sense construction of the constitutional provisions, statutes and court rules result in affirming the Court of Appeals’ grant of leave to appeal in this case. We remand for a hearing on the merits.

T. E. Brennan, Swainson, and Williams, JJ., concurred with M. S. Coleman, J.

1 Appellee argues the applicability of § 4 to review by the Court of Appeals and cites People v Brundage, 381 Mich 399; 162 NW2d 659 (1968). The case itself concerned appeal to the Supreme Court. Reference is made to the remarks of Justice O’Hara, who said,

"[T]o the extent that [MCLA 770.12; MSA 28.1109] purports to limit our appellate jurisdiction it is constitutionally infirm. Our appellate jurisdiction is constitutional. It can neither be enlarged nor restricted by legislative action.” (p 403.)

Justice Adams, writing for the majority, agreed, saying

"I agree with Justice O’Hara that by virtue of article 6, § 4, Constitution of 1963, the Supreme Court has appellate jurisdiction in criminal cases. Under our present Court Rules (GCR 1963), jurisdiction may be exercised in a given case upon grant of leave whether the decision of a lower court be in favor of or adverse to the State.” (p 407.)

Although this Court affirms the constitutional thrust of Brundage, we do not agree that art 6, § 4 purports to authorize the Supreme Court to provide rules concerning jurisdiction of the Court of Appeals.

2 This Court in People v Ballots, 252 Mich 282; 233 NW 229 (1930) faced

“the question of whether review by writ of error can be had by the people in this case. Without statutory authorization the people cannot review a criminal case by writ of error.”

The statute under consideration was the predecessor to 770.12. Defendant had been convicted in justice court and on appeal the circuit court quashed the complaint. Our Court concluded at 284:

"Clearly, review by the people in this case does not come within the mentioned statute, for decision in the circuit court was not based upon the invalidity or construction of the ordinance upon which the complaint was founded.

"We have no jurisdiction. The writ of error is dismissed.”

Similar results were reached in People v Ballard, 220 Mich 500; 190 NW 242 (1922) and People v Rau, 220 Mich 502; 190 NW 243 (1922).

In People v Woodward, 215 Mich 267; 183 NW 901 (1921), the Court said at 269:

"It is obvious from the provisions of the act that the legislature contemplated the issuance of a writ of error in behalf of the people only when the indictment was attacked upon the ground of the invalidity or construction of the statute upon which the indictment was based. In the present case the indictment was not attacked and the validity of the statute was in no way questioned. The ground upon which the judgment of conviction was attacked was the fact that the conviction was brought about by evidence illegally obtained. It was shown without question that the officers disobeyed the plain provisions of the statute in obtaining the evidence. Without this illegal evidence there was not sufficient proof to sustain the indictment. By reason of this, we think defendant’s point is well taken; that we have no jurisdiction to consider the assignments.”

3 It should be well noted that the people’s ability to appeal as of right is not given the constitutional backing that Const Í963, art 1, § 20 affords the accused in a criminal prosecution. The people’s right is provided by court rule. A conflict between such rule and a constitutional protection afforded an individual in a criminal prosecution generally should be resolved in favor of the latter. We know, however, that leave may not be granted if the defendant’s right against double jeopardy would be violated thereby.