People v. Smith
Opinion
VIVIANO, J.
**627As part of defendant's plea deal, he agreed to resign his position as a state senator and not seek public office during his five-year probationary term. After reviewing the agreement, the trial court determined that these terms violated the separation-of-powers doctrine and public policy. It struck down the terms but, over the prosecutor's objection, enforced the **628rest of the plea deal. The Court of Appeals affirmed. We took this case to decide whether the resignation and bar-to-office provisions of the plea deal were enforceable, and if not, whether the trial court erred by refusing to allow the prosecutor to withdraw from the deal. We hold that: (1) the question regarding the resignation provision is now moot and we therefore decline to reach it and instead vacate the Court of Appeals' discussion of that issue, (2) the bar-to-office provision is unenforceable as against public policy, and (3) the trial court erred by not permitting the prosecutor to withdraw from the plea agreement under People v. Siebert .1 We would have further held that the validity of the bar-to-office provision must be assessed under the balancing test in Town of Newton v. Rumery .2
I. FACTS AND PROCEDURAL HISTORY
While serving as a state senator, in May 2015, defendant fired his rifle at his ex-wife's car and into the air in her presence. He was charged with felonious assault, MCL 750.82 ; domestic violence, *721MCL 750.81 ; malicious destruction of personal property (worth $20,000 or more), MCL 750.377a ; and felony-firearm, MCL 750.227b. In February 2016 he entered into a plea agreement that required him to plead guilty to malicious destruction of property in exchange for dismissal of the other charges. The plea agreement included a sentence agreement to a sentence of 10 months in the Wayne County Jail and 5 years' probation. Defendant also had to comply with various other **629conditions, including the two at issue here: "Resign position as State Senator" (the resignation provision) and "Cannot hold elective or appointed office during full pendency of probation" (the bar-to-office provision).
The plea agreement was put on the record, and defendant pleaded guilty. At a sentencing hearing on March 14, 2016, the court sua sponte struck the resignation and bar-to-office provisions but otherwise sentenced defendant in accordance with the plea agreement. In an order, the trial court explained that the struck provisions represented "an unconstitutional interference by the Prosecutor with the legislative branch of government and with the rights of the defendant's constituents." Further, the order stated that the provisions "offend[ ] the Constitution of the State of Michigan, [are] contrary to public policy and compromise[ ] the integrity of this court." In all other respects, however, the trial court enforced the plea agreement.
The prosecution moved to vacate the plea, arguing that defendant had not yet resigned and thus had failed to comply with the plea agreement. The prosecutor further contended that because the court failed to enforce the entire original agreement, the prosecutor was entitled to withdraw from the plea. The trial judge rejected the prosecutor's motion, finding that vacation would not serve the interests of justice.
Defendant resigned his position as a state senator on April 12, 2016. In an opinion issued on April 18, 2017, the Court of Appeals dismissed the appeal as moot because Smith had voluntarily resigned and expressed no intention of running for office during his probation period.3 The same day the Court of Appeals issued its opinion, defendant submitted petitions to **630run for Detroit City Council. He came in second place in the August 2017 primary, but he lost the general election in November.
Before the general election, the prosecutor sought leave to appeal in this Court, contending that the case represented an election-related emergency. We remanded to the Court of Appeals,4 which affirmed the trial court in an opinion issued August 22, 2017.5 The Court held that the resignation and bar-to-office provisions were unconstitutional violations of the separation-of-powers doctrine, because only the Legislature could expel its members.6 Further, the plea agreement "invaded the right of defendant's constituents to 'decide upon his moral and other qualifications' when defendant's crimes did not specifically disqualify him" under pertinent constitutional provisions.7 The Court also held that the trial court did not abuse its discretion by denying the prosecution's motion to vacate the plea because defendant had fulfilled *722many of the terms of the plea deal and therefore the prosecution should not be allowed a second opportunity to negotiate.8 Judge RIORDAN dissented, finding no violation of the separation-of-powers doctrine and asserting that the trial court had abused its discretion by not allowing the prosecutor's withdrawal from the plea agreement.9
The prosecutor again appealed, and we ordered oral argument on whether to grant the application, directing the parties to brief:
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VIVIANO, J.
**627As part of defendant's plea deal, he agreed to resign his position as a state senator and not seek public office during his five-year probationary term. After reviewing the agreement, the trial court determined that these terms violated the separation-of-powers doctrine and public policy. It struck down the terms but, over the prosecutor's objection, enforced the **628rest of the plea deal. The Court of Appeals affirmed. We took this case to decide whether the resignation and bar-to-office provisions of the plea deal were enforceable, and if not, whether the trial court erred by refusing to allow the prosecutor to withdraw from the deal. We hold that: (1) the question regarding the resignation provision is now moot and we therefore decline to reach it and instead vacate the Court of Appeals' discussion of that issue, (2) the bar-to-office provision is unenforceable as against public policy, and (3) the trial court erred by not permitting the prosecutor to withdraw from the plea agreement under People v. Siebert .1 We would have further held that the validity of the bar-to-office provision must be assessed under the balancing test in Town of Newton v. Rumery .2
I. FACTS AND PROCEDURAL HISTORY
While serving as a state senator, in May 2015, defendant fired his rifle at his ex-wife's car and into the air in her presence. He was charged with felonious assault, MCL 750.82 ; domestic violence, *721MCL 750.81 ; malicious destruction of personal property (worth $20,000 or more), MCL 750.377a ; and felony-firearm, MCL 750.227b. In February 2016 he entered into a plea agreement that required him to plead guilty to malicious destruction of property in exchange for dismissal of the other charges. The plea agreement included a sentence agreement to a sentence of 10 months in the Wayne County Jail and 5 years' probation. Defendant also had to comply with various other **629conditions, including the two at issue here: "Resign position as State Senator" (the resignation provision) and "Cannot hold elective or appointed office during full pendency of probation" (the bar-to-office provision).
The plea agreement was put on the record, and defendant pleaded guilty. At a sentencing hearing on March 14, 2016, the court sua sponte struck the resignation and bar-to-office provisions but otherwise sentenced defendant in accordance with the plea agreement. In an order, the trial court explained that the struck provisions represented "an unconstitutional interference by the Prosecutor with the legislative branch of government and with the rights of the defendant's constituents." Further, the order stated that the provisions "offend[ ] the Constitution of the State of Michigan, [are] contrary to public policy and compromise[ ] the integrity of this court." In all other respects, however, the trial court enforced the plea agreement.
The prosecution moved to vacate the plea, arguing that defendant had not yet resigned and thus had failed to comply with the plea agreement. The prosecutor further contended that because the court failed to enforce the entire original agreement, the prosecutor was entitled to withdraw from the plea. The trial judge rejected the prosecutor's motion, finding that vacation would not serve the interests of justice.
Defendant resigned his position as a state senator on April 12, 2016. In an opinion issued on April 18, 2017, the Court of Appeals dismissed the appeal as moot because Smith had voluntarily resigned and expressed no intention of running for office during his probation period.3 The same day the Court of Appeals issued its opinion, defendant submitted petitions to **630run for Detroit City Council. He came in second place in the August 2017 primary, but he lost the general election in November.
Before the general election, the prosecutor sought leave to appeal in this Court, contending that the case represented an election-related emergency. We remanded to the Court of Appeals,4 which affirmed the trial court in an opinion issued August 22, 2017.5 The Court held that the resignation and bar-to-office provisions were unconstitutional violations of the separation-of-powers doctrine, because only the Legislature could expel its members.6 Further, the plea agreement "invaded the right of defendant's constituents to 'decide upon his moral and other qualifications' when defendant's crimes did not specifically disqualify him" under pertinent constitutional provisions.7 The Court also held that the trial court did not abuse its discretion by denying the prosecution's motion to vacate the plea because defendant had fulfilled *722many of the terms of the plea deal and therefore the prosecution should not be allowed a second opportunity to negotiate.8 Judge RIORDAN dissented, finding no violation of the separation-of-powers doctrine and asserting that the trial court had abused its discretion by not allowing the prosecutor's withdrawal from the plea agreement.9
The prosecutor again appealed, and we ordered oral argument on whether to grant the application, directing the parties to brief:
**631(1) whether a prosecutor's inclusion of a provision in a plea agreement that prohibits a defendant from holding public office violates the separation of powers, see Const 1963, art 3, § 2 ; see also United States v. Richmond ,550 F.Supp. 605 (E.D.N.Y., 1982), or is void as against public policy, Davies v. Grossmont Union High Sch. Dist. ,930 F.2d 1390 , 1392-1393 (C.A. 9, 1991) ; (2) whether the validity of the provision requiring the defendant to resign from public office was properly before the Court of Appeals since the defendant resigned from the Michigan Senate after the Wayne Circuit Court had struck that part of the plea agreement and, if so, whether it violates the separation of powers or is void as against public policy; and (3) whether the trial court abused its discretion by voiding terms of the plea agreement without affording the prosecutor an opportunity to withdraw from the agreement, see People v. Siebert ,450 Mich. 500 , 504 [537 N.W.2d 891 ] (1995).[10 ]
II. STANDARD OF REVIEW
Questions of law are reviewed de novo.11 Trial court decisions regarding motions to vacate pleas are reviewed for an abuse of discretion.12
III. ANALYSIS
A. THE RESIGNATION PROVISION
The first issue is whether the resignation provision in the plea deal is moot. "It is well established that a court will not decide moot issues."13 A dispute is moot if no controversy exists and any judgment on the matter would lack practical legal effect.14 Courts will not **632entertain such abstract issues unless they are "of public significance" and are "likely to recur, yet may evade judicial review."15 Here, defendant's resignation has already taken effect and cannot be retracted. If we were to strike the provision, our decision on the issue would lack practical legal effect.
The parties have failed to show that this issue is likely to evade review. The trial court struck the resignation provision from the plea deal before defendant voluntarily decided to resign from office. If defendant had not resigned from office, then the *723Court of Appeals could have properly reviewed the validity of the resignation provision. Consequently, we hold that the issue is moot and we will not address it. In addition, we vacate as moot that part of the Court of Appeals' judgment holding the resignation provision to be invalid.
B. THE BAR-TO-OFFICE PROVISION
The second issue is whether the bar-to-office provision violates the separation-of-powers doctrine or is void as against public policy. Since we generally avoid constitutional decisions if nonconstitutional grounds can resolve a case,16 we begin with public policy.
"Although the analogy may not hold in all respects, plea bargains are essentially contracts" and can be subject to the same rules and principles governing contracts.17 One such rule is that contracts contravening public policy are void and unenforceable.18 Public policy can be found "in our state and federal constitutions, **633our statutes, and the common law," among other sources.19 "Plea agreements are subject to the public policy constraints that bear upon the enforcement of other kinds of contracts."20
1. RUMERY 'S BALANCING TEST
The United States Supreme Court has provided a framework for assessing whether certain agreements between prosecutors or government officials and criminal defendants violate public policy. In Town of Newton v. Rumery , the Court explained the "well established" balancing test under which "a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement."21 That case involved a release-dismissal agreement whereby the prosecutor agreed to drop all charges against a criminal defendant in exchange for a waiver by the defendant of his right to pursue any statutory causes of action against the town or its officials.22 The criminal defendant then instituted a civil suit alleging that the agreement violated public policy.23 To determine whether that **634agreement could stand, the Court held that the above balancing test applied; accordingly, the opinion examined whether the interests in enforcing the agreement were outweighed by public policy concerns.24
Rumery 's balancing test was applied to a bar-to-office provision in *724Davies v. Grossmont Union High Sch. Dist. .25 There, the plaintiff had previously settled a civil rights complaint against the defendants, including a school district, in part by agreeing not to run for the district's school board.26 The plaintiff subsequently ran for and won a board position. The United States Court of Appeals for the Ninth Circuit examined whether the provision was unenforceable as a matter of public policy. The court treated the provision as a waiver of rights and looked to Rumery 's balancing test to resolve the case.27 The court determined that the interests favoring nonenforcement, which included the electorate's right to vote, outweighed the interest in enforcement, **635which included the settlement of litigation and the protection of voters.28
We believe Rumery and Davies point the way forward in this case. It is true that we are not dealing with a release-dismissal agreement.29 The prosecutor here has not cut a deal to shield a municipality or its officials from liability, and the bar-to-office provision is ostensibly for the public's good, not the prosecutor's private gain. But the interests at stake in the present case are materially similar to those in Rumery and Davies . Prosecutors have broad charging discretion.30 For this reason, prosecutors are obliged to fulfill the functions of their office without regard to political considerations.31 Giving prosecutors *725unfettered discretion to decide which defendants should be excluded **636from office would allow political considerations to enter into the prosecutor's charging calculus.32
Regardless of the prosecutor's motivations, a plea bargain that prevents an individual from holding public office has the same effect as a release-dismissal agreement that bars an individual from office. In each case, the democratic process is affected in ways that may have nothing to do with the voters' assessment of, or ability to assess, a candidate's fitness for office. As such, we conclude that the Rumery framework should apply to bar-to-office provisions in plea bargains.33
**6372. PUBLIC POLICIES FAVORING NONENFORCEMENT
This case, like Davies , "involves the most important political right in a democratic system of government: the right of the people to elect representatives of their own choosing to public office."34 When the government limits voters' options, the constitutional rights to vote and associate are implicated.35 As the United States Supreme Court has observed in a somewhat different context, "the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters."36 The voters' rights are thus burdened by the exclusion of candidates from office.37 Schemes that affect the "selection *726and eligibility of candidates ... inevitably affect[ ]-at least to some degree-the individual's right to vote and his right to associate with others for political ends."38 The practical effect of enforcing a bar on a willing individual's ability to run is "a limitation on the fundamental right to vote ...."39 "[T]he source of the qualification" on eligibility for office "is of little moment in assessing the qualification's restrictive impact."40
These basic principles, and many related ones, permeate our law. To begin, our Constitution provides that **638"[a]ll political power is inherent in the people."41 "[T]he right to vote is an implicit 'fundamental political right' that is 'preservative of all rights.' "42 The right can be regulated, but not impaired,43 and neither the judiciary nor the Legislature can construct arbitrary exclusions from holding office.44 In Speed v. Common Council of Detroit , we noted that absent laws regulating eligibility for office, "[t]here is no restriction upon the power of the people to elect, or the appointing power to appoint, any citizen to office, notwithstanding his previous character, habits, or official misconduct."45
Moreover, we believe that public offices should not be treated like private property. As Davies observed, "To treat political rights as economic commodities corrupts the political process."46 Such treatment fundamentally misunderstands the nature of public office: the law has long been clear that there is no property interest in holding public office.47 As we have stated, "A public office cannot be called 'property,' within the meaning of" various constitutional provisions protecting property interests, including the Due Process **639Clause.48 Instead, "[p]ublic offices are created for the purposes of government. They are delegations of portions of the sovereign power for the welfare of the public. They are not the subjects of contract, but they are agencies for the State ...."49 Thus, public offices cannot be commoditized *727for the personal benefit of the officeholder or aspiring officeholder.
To enforce these important public policies, courts have closely reviewed deals made by public officials or candidates for office. As we have noted, a contract made by a public officer has been held to be void as against public policy " 'if it interferes with the unbiased discharge of [the officer's] duty to the public ... , or even if it has a tendency to induce him to violate such duty[.]' "50 Our election laws broaden this policy by making it a misdemeanor to, among other things, "solicit any valuable consideration from a candidate for nomination for, or election to, an office described in this act."51 The definition of "valuable consideration"-including, among other things, property, money, prizes, offices, and the like-is sweeping, preventing many types of promises that could be extracted from candidates for public office.52 The statute thus displays the law's hostility to a broad range of deal-making with **640regard to public office, even by mere candidates and even for noneconomic consideration.
In a similar vein, the common law has long held that agreements impairing elections are void as against public policy.53 The reason for this rule was that "[p]ublic offices are public trusts, and should be conferred solely upon considerations of ability, integrity, fidelity and fitness for the position."54 On this basis, agreements procuring a candidate's withdrawal from the pursuit of public office have been found void as against public policy.55 That is, an agreement not to run for office is unenforceable. It is true that many of these cases involved the exchange of money for the candidate's withdrawal or involved candidates who had been officially nominated.56 Nonetheless, they were also undergirded by concerns for the electoral process and voting **641rights. As one court stated, such an agreement "is against public *728policy because it affects the integrity of the elective franchise and puts it in the power of a corrupt person to defeat the will of the people ...."57
Thus, various policies weigh in favor of nonenforcement, including the effect the agreement has on voters' rights and the potential for treating public office as private property.
3. PUBLIC POLICIES FAVORING ENFORCEMENT
Turning to the policies favoring enforcement, we begin by noting that prosecutors have broad charging discretion when pursuing their cases.58 And "plea bargaining [is] 'an essential component of the administration of justice'."59 Consequently, at a general level, public policy supports the plea-bargaining process.60 But these interests are not without limits. A prosecutor has no interest in "enter[ing] into plea agreements at any expense" and regardless of whether the agreement serves the ends of justice.61 Likewise, a prosecutor may not abuse his or her charging discretion by exercising it in an arbitrary manner.62 The prosecutor here also notes that the "public expects lawmakers to uphold the laws, and it is appropriate to punish lawmakers, like other members of the public, when they do not." Additionally, the prosecutor and the dissent contend **642that other defendants can surrender the practice of their professions, and candidates for office should also be able to relinquish their ability to pursue office.
4. APPLICATION
Weighing the interests in this case, we conclude that public policy favors nonenforcement of the bar-to-office provision. As in Davies , "the public interest at stake in this case is of the highest order," as it relates to the heart of the democratic process: voting.63 By restricting the eligibility of defendant to run for office, the bar-to-office provision restricts the foundational right of voters to select their representatives. Further, we disagree with the prosecutor and the dissent that a candidate for office should be treated like any other professional who can, as a bargaining chip, offer to forgo the right to practice his or her profession. The public policies discussed above reject the notion that public office can be commoditized in this fashion for personal gain. Rather, public offices are public trusts. For this reason and the others detailed above, courts have long looked with skepticism on agreements that affect elections for a candidate's personal gain.
Against these specific and compelling policies, the prosecutor and the dissent offer only generalized interests in the enforcement of the plea agreement.64 A **643prosecutor's charging discretion is a background *729principle that does not entitle a prosecutor to impair elections. Nor does the right to enter plea bargains-or the related need for efficient resolution of criminal prosecutions-justify this bar-to-office provision. In every case, the prosecutor wields charging discretion and can enter plea agreements with the court's approval; to say that tells us nothing about whether the prosecutor should be able to enforce a bar-to-office term in this case. Similarly, the need to punish defendant does not mandate this particular form of punishment, which also impairs the rights of voters by limiting their options. These rationales offered by the prosecutor do not justify the imposition that the bar-to-office provision places on the democratic process.
Another important consideration in our analysis is whether a logical connection exists between the charged crimes and the bar-to-office provision. Davies , after weighing the interests at stake, inquired whether the government had a "legitimate reason" for the waiver of the plaintiff's right to run for office.65 According to Davies , a "legitimate reason will almost always include a close nexus-a tight fit-between the specific interest the government seeks to advance in the dispute underlying the litigation involved and the specific right waived."66 Put differently, "[t]he absence of a close nexus will ordinarily show that the government is seeking the waiver of important rights without a legitimate governmental interest that justifies doing so."67
**644In this regard, comparison to our state's laws on eligibility for office is instructive, as they too suggest the need for a nexus. The types of crimes that bar an individual from office typically relate to public office. For example, Const 1963, art 4, § 7 provides that "[n]o person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be eligible for either house of the legislature." More broadly, Const 1963, art 11, § 8, renders individuals ineligible for office if "within the immediately preceding 20 years" they have been convicted of certain crimes involving dishonesty and the convictions were "related to the person's official capacity while the person was holding any elective office ...."68 Thus, the law does not exclude every person convicted of a crime from public office-instead, it allows the voters to determine whether commission of crimes unrelated to public office renders a person unfit for public service.
Here, no "close nexus" exists between the charged offenses and defendant's conduct in office. However egregious defendant's alleged offenses may be, they do not *730directly relate to the duties and responsibilities of public office-he was not charged with misconduct that was in any manner related to public office. Consequently, the prosecutor can point to no legitimate **645reason for the bar-to-office provision.69 Its inclusion in the plea agreement reflects, instead, the prosecutor's own conclusion that defendant should not serve in public office.70 Our laws do not give prosecutors the unilateral authority to make this determination.
For these reasons, we agree with both lower courts that the bar-to-office provision in defendant's plea agreement is void as against public policy.71
**646C. PLEA WITHDRAWAL
The final issue in this case is whether the trial court erred by voiding terms of the plea deal without permitting the prosecutor to withdraw from the agreement. This question need not detain us long. In People v. Siebert , we considered "whether a prosecutor may withdraw from a plea bargain that includes a sentence agreement when the court intends to impose a sentence lower than the agreement calls for."72 We held that "a prosecutor ... is entitled to learn that the judge does not intend to impose the agreed-upon sentence ... and [be] given an opportunity to withdraw from the plea agreement."73 This conclusion stemmed, in part, from the prosecution's constitutional interest in being entrusted with the authority to charge defendants.74 If a court could "maintain its acceptance of the plea over the prosecutor's objection, it would effectively assume *731the prosecutor's constitutional authority to determine the charge or charges a defendant will face."75
In the present case, the trial court did not reject the sentencing provision of the plea agreement, but that fact makes no difference. Siebert instructs that the trial court cannot assume the prosecutor's charging authority by accepting a plea bargain but rejecting its **647sentencing agreement. In the same way, the trial court cannot seek to enforce a plea bargain except for a bar-to-office provision. When it rejects either the sentence or a plea term like a bar-to-office provision, while keeping the rest of the agreement, the trial court essentially imposes a different plea bargain on the prosecutor than he or she agreed to. In such circumstances, the trial court infringes on the prosecutor's charging discretion. This is impermissible. If the trial court wishes to reject a bar-to-office provision, it must give the prosecutor an opportunity to withdraw from the agreement.
The trial court here did not provide such an opportunity and in fact denied the prosecutor's motion vacate the plea. The Court of Appeals upheld this decision on the basis that allowing the prosecutor to withdraw would subvert the ends of justice. But neither the Court nor defendant has cited any authority for the proposition that a trial court may unilaterally modify the terms of a plea bargain in order to serve the court's notions of justice.76 Therefore, we hold that the trial court abused its discretion by refusing to allow the prosecutor to withdraw from the plea agreement.
**648IV. CONCLUSION
In this case, we hold that the bar-to-office provision in defendant's plea agreement is void. We would further hold that when challenged as void against public policy, bar-to-office provisions in plea agreements should be analyzed under the balancing test in Rumery . In the present case, the bar-to-office provision would not survive that test, as the conduct defendant is charged with bears no nexus with his public office. Further, we hold that the trial court erred by voiding the bar-to-office provision but refusing to permit the prosecutor to then withdraw from the plea agreement. Finally, we do not decide whether the resignation provision of the plea agreement is void as against public policy because that question is moot. We thus reverse the Court of Appeals' judgment in part, affirm in part, vacate as moot that part of the Court of Appeals' judgment holding that the resignation provision in the plea agreement was invalid, *732and remand the case to the trial court for further proceedings consistent with this opinion.
David F. Viviano Bridget M. McCormack Richard H. Bernstein
I concur in full with the Court's unanimous conclusion that the Court of Appeals' evaluation of the resignation provision should be vacated because the provision's validity was moot by the time the issue came before that Court. As explained below, however, I concur only in the judgment as to the lead opinion's analysis of the bar-to-office provision's invalidity.1 Given our shared conclusion that the bar-to-office **649provision is invalid, I concur in full with the Court's conclusion that the trial court violated the separation of powers, People v. Siebert ,
The lead opinion invalidates the bar-to-office provision of the plea agreement at issue on the basis of the balancing test established in Town of Newton v. Rumery ,
**650I have no specific objection to the Rumery balancing test, but I do not believe it is necessary to decide this case. I believe this case can be more straightforwardly resolved on the basis that the common law of contracts2 prohibits defendant from bargaining away his ability to run for office for something of value to him: less-punitive criminal charges. As the lead opinion notes, the common law has long held that agreements impairing elections are void as against public policy. I believe this principle, in and of itself, is a complete basis for holding that the plea agreement at issue here was void-defendant could not bargain away his ability to run for public office in exchange for charging considerations *733and expect to have a court endorse such an exchange.3 The lead opinion cites several learned treatises, which I believe accurately **651set out the state of the law on this account.4 Indeed, it long has been the case that a contract's consideration "must be a thing lawful in itself, or else the contract is void." 2 Blackstone, Commentaries on the Laws of England, p *444. Blackstone also remarked that "it is essential to the very being of Parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited[.]" 1 Blackstone, Commentaries on the Laws of England, p *178. Particularly condemned were efforts by public officials to manipulate their offices for private gain:
[T]he greatest danger is that in which [the legislators] co-operate, by the infamous practice of bribery and corruption. ... [N]o candidate shall ... give any money or entertainment to his electors, or promise to give any, either to **652particular persons, or to the place in general, in order to his being elected .... [Id . at *179.]
See also 8 Holdsworth, A History of English Law (1925), p 55 (noting that "tolerance of traffic in offices of trust" was "unintelligible" to the law).
*734It is, of course, true that few cases deal with this exact set of facts.5 But I believe Michigan jurisprudence has not hesitated in the past to extend the concept of invalidating contracts that impinge upon elections and public office to new factual scenarios. For example, in Harris v. Chamberlain ,
I also do not believe it matters whether the prosecutor was seeking personal advantage in this case.7 Our precedents focus on prohibiting the risk of wrongful conduct rather than invalidating only those agreements relating to public officers that actually are the product of corruption. For example, in People ex rel. Plugger v. Overyssel Twp. Bd. ,
*735Actual injury is not the principle the law proceeds on in holding such transactions void. Fidelity in the agent is **654what is aimed at, and as a means of securing it, the law will not permit the agent to place himself in a situation in which he may be tempted by his own private interest to disregard that of his principal. [ Id . at 225-226 (opinion by MANNING, J.).]
The fact that those contractors did not constitute a majority ... , I do not regard as in any respect altering the principle, nor the fact that the contract was let to the lowest bidder. The price alone is but one element embraced in the question, and even this might be affected by their influence, by fixing time and place of the letting, by their right to decide upon the responsibility of the bidders, and by many other circumstances, over which, as members of the board, they might exercise an influence. ... [I]t is manifestly impossible, from the nature of the case, to ascertain and measure the amount of their influence upon the board ....
And though these contractors may, as members of the board, have acted honestly, and solely with reference to the public interest, yet, if they have acted otherwise, they occupy a position which puts it in their power to conceal the evidence of the facts, and to defy detection. [ Id . at 227-228 (opinion by CHRISTIANCY , J.) ].[8 ]
Consequently, I am unpersuaded by the dissent's concern that this "would undermine the effective prosecution and punishment of public corruption." This sort of practical concern seems much the same as the Plugger dissent's observation that "[w]orks of enterprise" "in small and new townships" "cannot usually find many bidders," meaning that "forbidding such contracts [as were at issue] would be equivalent to shutting the best men out from office." Id . at 231 **655(opinion by CAMPBELL, J.). I am as unmoved as the Plugger majority was. Much of our law undermines effective prosecution in one way or another in furtherance of other goods; prophylactically reducing the risk of political figures trading their status for some measure of impunity from the complete consequences of their criminal acts is one such good, just as reducing the risk of manipulating the bidding process justified invalidating the contract in Plugger even when it could not be shown that the contract was anything other than the low bid and the best deal for the public fisc. I also do not believe it matters whether this agreement came, as the dissent states, "in the course of an arm's-length criminal plea proceeding ... overseen by a judicial tribunal." I believe that "the plea bargain cannot be allowed to supersede" the common law's determination that contracts impairing elections and public office are void as against public policy, even where both parties agree to it and a court has approved it. People v. Keefe ,
When courts in other jurisdictions have confronted agreements tending to interfere with who holds public office, they have invalidated them. While no two cases are exactly alike, the common thread is judicial *736unwillingness to assist public officials in leveraging their offices for private benefit. Thus, in Ham v. Smith ,
Public offices are public trusts, and should be conferred solely upon considerations of ability, integrity, fidelity and fitness for the position. Agreements for compensation to procure these tend directly and necessarily to lower the character of the appointments to the great detriment of the public. Hence such agreements, of whatever nature, have always been held void as being against public policy. ... [T]he moral sense revolts at traffic to any extent in the bestowal of public office. It is against good morals as well as against the soundest principles of public policy. If public offices can be sold or procured for money, the purchasers will be sure to reimburse themselves by dispensing the functions of their offices for pecuniary consideration. [ Id . at 457-458,20 S.E. 733 .]
I also do not see the caselaw as standing for the proposition that an economic exchange is the sine qua non of impropriety. For example, in Buck v. First Nat'l Bank of Paw Paw ,
I agree with the lead opinion (and Rumery ) that the common law is the touchstone for our disposition of this case. However, I do not believe that either Blackstone or our predecessors in this Court would have tolerated the arrangement before us if asked, and that there is ample authority *737from common-law jurisdictions invalidating agreements of this sort. Therefore, it seems unnecessary to me to apply Rumery and Davies to the instant case and extend "the modern tendency to make the balance the measure of all things," Releases, Redress, and Police Misconduct , 136 U Pa L Rev at 862, when we can draw upon existing authority to invalidate this agreement per se under the law of contracts. In reaching this conclusion, I am mindful of the risk of "public policy" becoming nothing **658more than "the personal preferences of a majority of this Court," because I agree that "such a policy must ultimately be clearly rooted in the law." Terrien v. Zwit ,
For these reasons, I concur in the Court's judgment that the bar-to-office provision at issue was invalid, meaning that the trial court correctly invalidated this provision of the plea agreement, albeit for the wrong reasons. However, as noted, I concur in full that the trial court violated Siebert in not allowing the prosecutor to withdraw from the agreement in contravention of the separation of powers,9 and I therefore concur in the remand for further proceedings consistent with the Court's judgment.
Elizabeth T. Clement
This case concerns the validity of a plea agreement **659voluntarily entered into by defendant that imposed upon him the obligation to resign from the state senate and to refrain from holding any elective or appointed office for the five-year duration of his probation. The trial court ruled that those two obligations were invalid and denied the prosecutor's subsequent motion to vacate the agreement. After defendant resigned from the Legislature, the Court of Appeals affirmed. I agree with the lead opinion that the Court of Appeals erred by addressing the validity of the resignation obligation of the agreement because that issue was rendered moot by the fact that defendant had already resigned, and I further agree with the decision to vacate that part of the Court of Appeals judgment. Hence, I concur with that part of the lead opinion. However, for the reasons set forth below, I respectfully disagree with the lead opinion and the concurrence that the Court of Appeals correctly held that the "bar to office" obligation of the agreement was invalid. Hence, I dissent from that part of the lead opinion. *738I. FACTS AND HISTORY
In May 2015, defendant Virgil Smith, then a Michigan state senator, was involved in an altercation with his ex-wife during which he apparently fired a gun at her, at her car, and into the air in her vicinity. As a result, the prosecutor charged him with domestic violence, MCL 750.81(2) ; malicious destruction of personal property valued at $20,000 or more, MCL 750.377a(1)(a)(i ) ; felonious assault, MCL 750.82 ; and possession of a firearm during the commission of a felony, MCL 750.227b. On February 11, 2016, the prosecutor and defendant entered into a plea agreement whereby defendant would plead guilty to malicious **660destruction of personal property valued at $20,000 or more, serve a 10-month jail sentence, and be placed on probation for five years. In addition, the agreement provided that defendant must "[r]esign position as State Senator" and "[c]annot hold elective or appointed office during full pendency of probation."1 Defendant agreed that these constituted his obligations under the plea agreement and supplied a factual basis for his guilty plea in court. The trial court accepted the plea and set a sentencing date for March 14, 2016.
At sentencing, the trial court ruled sua sponte that the obligations of the plea agreement requiring defendant to resign from the Legislature and to refrain from public office during his probation were invalid, explaining in relevant part:
So it would be illegal for me to impose as a condition of sentence that he resign from office and that he not hold public office during the pendency of this probation. It would violate the separation of powers [be]cause I'm a member of the judicial branch and the constitution provides for the removal, a way that legislators can be removed.
* * *
This agreement here in this case subverts both the authority of the senate and that of the Defendant's constituents. It's against public policy, as I indicated, by using a technique that has the possibly [sic] of executive or prosecutorial domination of members of the state [legislature] through forced resignation ....
The court then inquired of the attorneys if either would **661request to set aside the plea and the prosecutor responded that she "would have to consult." The court then implied that it would likely deny such a motion, asserting that "it would not be in the interest of justice for me to allow this plea to be withdrawn if the prosecutor were to make that motion." Later that same day, the court entered an order voiding the "portions of the plea agreement that required the defendant to '[r]esign [his] position as State Senator' and '[not] hold elective or appointed office during the full pendency of probation' ...."
The prosecutor then moved to vacate the plea, asserting at the March 28, 2016 motion hearing that "our position is if the Court could not go along with it then you should allow us the opportunity to withdraw the plea because that is not what we bargained for." The court denied the motion, stating:
[G]ranting the prosecution's motion to vacate this plea would compromise the Court's integrity by involving it in an act that violates public policy and offends the constitution. It does not matter that the Defendant voluntarily agreed to this portion of the plea agreement because these constitutional protections exist[ ] not for the Defendant's personal benefit, but to protect the rights of the Defendant's *739constituents and the right of the legislative branch of government.
The court entered a written order denying the prosecutor's motion that same day.
On April 1, 2016, the prosecutor sought leave to appeal in the Court of Appeals, arguing that the trial court erred by voiding the obligations of the plea agreement and abused its discretion by denying the prosecutor's motion to vacate the plea. At about the same time, defendant resigned from the state senate effective April 12, 2016. The Court of Appeals granted **662leave on August 26, 2016, but on April 18, 2017, it dismissed the appeal as moot. People v. Smith , unpublished per curiam opinion of the Court of Appeals, issued April 18, 2017 (Docket No. 332288)
On July 26, 2017, the prosecutor sought leave to appeal in this Court, and on August 15, 2017, we **663remanded to the Court of Appeals as on reconsideration granted. People v. Smith ,
On August 22, 2017, the Court of Appeals issued its opinion affirming the trial court in all respects. People v. Smith (On Remand) ,
The prosecutor again sought leave to appeal in this Court, and we scheduled oral argument on the application with the parties to address the following three issues:
(1) whether a prosecutor's inclusion of a provision in a plea agreement that prohibits a defendant from holding public office violates the separation of powers, see Const 1963, art 3, § 2 ; see also United States v. Richmond ,550 F.Supp. 605 (E.D.N.Y., 1982), or is void as against public policy, Davies v. Grossmont Union High Sch. Dist. ,930 F.2d 1390 , 1392-1393 (C.A. 9, 1991) ; (2) whether the validity of the provision requiring the defendant to resign from public office was properly before the Court of Appeals since the defendant resigned from the Michigan Senate after the Wayne Circuit Court had struck that part of the plea agreement and, if so, whether it violates the separation of powers or is void as against public policy; and (3) whether the trial court abused its discretion by voiding terms of the plea agreement without affording the prosecutor an opportunity to withdraw from the agreement, see People v. Siebert ,450 Mich 500 , 504 [537 N.W.2d 891 ] (1995). [ People v. Smith ,501 Mich. 852 , 852-853,900 N.W.2d 619 (2017).]
II. STANDARD OF REVIEW
"[T]his Court reviews de novo constitutional questions, including those concerning the separation of powers."
**665Debano-Griffin v. Lake Co. ,
III. ANALYSIS
A. SEPARATION OF POWERS
Const 1963, art 3, § 2 sets forth the separation-of-powers principle of our state Constitution:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another *741branch except as expressly provided in this constitution.
"This Court has established that the separation of powers doctrine does not require so strict a separation as to provide no overlap of responsibilities and powers." Judicial Attorneys Ass'n v. Michigan ,
**666Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co. ,
"The conduct of a prosecution on behalf of the people by the prosecutor is an executive act[.]" Genesee Prosecutor v. Genesee Circuit Judge ,
In ruling that the bar-to-office obligation violated the separation-of-powers principle, the Court of Appeals reasoned that the obligation added a qualification **667for public office that is not included within our Constitution. See Smith ,
Each senator and representative must be a citizen of the United States, at least 21 years of age, and an elector of the district he represents. The removal of his domicile from the district shall be deemed a vacation of the office. No person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be *742eligible for either house of the legislature.
However, Const 1963, art 4, § 8 sets forth an additional qualification to serve in the state Legislature:
No person holding any office, employment or position under the United States or this state or a political subdivision thereof, except notaries public and members of the armed forces reserve, may be a member of either house of the legislature.
Const 1963, art 4, § 16 provides further context for the manner in which state legislative qualifications are to be determined:
Each house, except as otherwise provided in this constitution, shall choose its own officers and determine the rules of its proceedings, but shall not adopt any rule that will prevent a majority of the members elected thereto and serving therein from discharging a committee from the further consideration of any measure. Each house shall be the sole judge of the qualifications, elections and returns of its members , and may, with the concurrence of two-thirds of all the members elected thereto and serving therein, expel a member. The reasons for such expulsion shall be entered in the journal, with the votes and names of the **668members voting upon the question. No member shall be expelled a second time for the same cause. [Emphasis added.]
Const 1963, art 6, § 19 similarly sets forth the qualifications of judicial officers in this state:
(1) The supreme court, the court of appeals, the circuit court, the probate court and other courts designated as such by the legislature shall be courts of record and each shall have a common seal. Justices and judges of courts of record must be persons who are licensed to practice law in this state.
(2) To be qualified to serve as a judge of a trial court, a judge of the court of appeals, or a justice of the supreme court, a person shall have been admitted to the practice of law for at least 5 years. This subsection shall not apply to any judge or justice appointed or elected to judicial office prior to the date on which this subsection becomes part of the constitution.
(3) No person shall be elected or appointed to a judicial office after reaching the age of 70 years.
Const 1963, art 11, § 8 sets forth disqualifying characteristics that bar an individual from holding public office and certain other positions of public employment:
A person is ineligible for election or appointment to any state or local elective office of this state and ineligible to hold a position in public employment in this state that is policy-making or that has discretionary authority over public assets if, within the immediately preceding 20 years, the person was convicted of a felony involving dishonesty, deceit, fraud, or a breach of the public trust and the conviction was related to the person's official capacity while the person was holding any elective office or position of employment in local, state, or federal government. This requirement is in addition to any other qualification required under this constitution or by law.
The legislature shall prescribe by law for the implementation of this section.
**669I would conclude that the bar-to-office obligation negotiated by the prosecutor as part of the plea agreement does not violate the separation-of-powers principle. The fundamental reality of the bar-to-office obligation is that it has been entered into voluntarily by defendant, and it has been entered into by defendant as an alternative to a looming criminal conviction that threatens as a practical matter to bar him *743from holding legislative office for a considerably lengthier time than the period of his probation under the plea agreement.6 In other words, defendant himself would hold the key to the avoidance of this obligation, merely by dint of choosing to reject the obligation; if he does so, he is in no way subject any longer to the obligation. See People v. Sarnoff ,
Put simply, defendant here may yet seek to hold legislative office if he is so inclined, and each house of the Legislature will continue to retain its constitutional powers under Const 1963, art 4, § 16 as the "sole judge of the qualifications" of its members, including those of the defendant. See Auditor Gen. v. Bd. of Supervisors of Menominee Co. ,
**671Several cases from other jurisdictions have indicated that bar-to-office obligations as part of probation orders are valid, although these cases have given little consideration to the separation of powers *744implications. See, e.g., State v. Williams ,
On the other hand, I acknowledge that other cases, United States v. Richmond ,
"Although the analogy may not hold in all respects, plea bargains are essentially contracts." Puckett v. United States ,
" 'Contracts contrary to public policy, that is those which tend to be injurious to the public or against the public good, are illegal and void, even though actual injury does not result therefrom.' " Federoff v. Ewing ,
As a general rule, making social policy is a job for the Legislature, not the courts. This is especially true when the determination or resolution requires placing a premium on one societal interest at the expense of another: The responsibility for drawing lines in a society as complex as ours-of identifying priorities, weighing the relevant considerations and choosing between competing alternatives-is the Legislature's, not the judiciary's. [ Id . (quotation marks and citations omitted).]
" 'The public policy of the government is to be found in its statutes, and, when they have not directly spoken, then in the decisions of the courts and the constant practice of the government officials.' " Skutt ,
*746Defendant, as the party challenging the bar-to-office obligation, bears the burden of showing that it is on some grounds void as against public policy. See **675Barton-Spencer v. Farm Bureau Life Ins. Co. of Mich. ,
First, the United States Supreme Court has recognized the public policy in favor of guilty pleas. "For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious-his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated." Brady v. United States ,
Moreover, this Court has recognized the public policy in favor of plea bargaining, which is the principal means of securing guilty pleas:
"Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the **676corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned." [ People v. Killebrew ,416 Mich. 189 , 198,330 N.W.2d 834 (1982), quoting Santobello v. New York ,404 U.S. 257 , 261,92 S.Ct. 495 ,30 L.Ed.2d 427 (1971).]
Put simply, "the general practice of plea bargaining withstands constitutional scrutiny and offers significant benefits to both the defendant and the state." Killebrew ,
Second, even beyond the plea-bargaining context, trial courts are permitted to impose individualized **677sentences for probation, depending on the circumstances of the criminal and the crime itself. Specifically, MCL 771.3(2) lists several obligations that the trial court may impose on the probationer, such as "[e]ngage[ment] in community service." MCL 771.3(2)(e). And MCL 771.3(3) adds that "[t]he court may impose other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment are proper." Thus, MCL 771.3(3) provides the trial court with broad authority to impose unique and highly personal obligations of probation. I see no reason why the bar-to-office obligation stands outside this broad grant of authority.
Third, additional law of this state-in particular, our Constitution and statutes-suggests that the bar-to-office obligation is valid. While Const 1963, art 11, § 8 only disqualifies a person from "election or appointment to any state or local elective office of this state" when he or she "within the immediately preceding 20 years ... was convicted of a felony involving dishonesty, deceit, fraud, or a breach of the public trust and the conviction was related to the person's official capacity while the person was holding any elective office or position of employment in local, state, or federal government," that provision further states that "[t]his requirement is in addition to any other qualification required under this constitution or by law ." (Emphasis added.) Thus, Const 1963, art 11, § 8 expressly contemplates that conduct extending beyond the specifically described felonies involving "dishonesty, deceit, fraud, or a breach of the public trust" while holding "elective office" may operate as an effective limitation upon **678holding public office. For instance, although Const 1963, art 11, § 8 only includes a 20-year bar to office for individuals convicted of such felonies, MCL 750.118 provides that "[a]ny executive, legislative or judicial officer who shall corruptly accept any gift or gratuity ... shall forfeit his office, and be forever disqualified to hold any public office ...." (Emphasis added.) And although the 20-year bar to office of Const 1963, art 11, § 8 only applies when an individual is convicted of one of the specifically described felonies "while the person was holding any elective office," MCL 169.267, which imposes a $2 million limitation on expenditures by a "candidate committee," provides that "[i]f a person who is subject to this section is found guilty, the circuit court, on application by the attorney general, may prohibit that person from assuming the duties of a public office or from receiving compensation from public funds, or both." MCL 169.267(4). That is, an individual convicted of violating MCL 169.267 may be prohibited from holding public office even if the violation did not occur while he or she was holding public office. Simply stated, to the extent that the public policy of this state is derived from its Constitution and statutes, such policy seemingly stands in disfavor of allowing those with serious criminal records to serve in public office.13 *748I further believe that the bar-to-office obligation is consistent with the principle that the rule of law fundamentally "ensures equality of treatment under the law." LSEA ,
Criminal defendants, such as the instant defendant himself, would be placed at a distinct disadvantage if they could not utilize their future potential to hold public office as a bargaining chip on their own behalf in pursuit of reduced criminal penalties, just as all other defendants can similarly avail themselves of their own unique circumstances. I do not doubt that criminal defendants engaged in such bargaining are often faced with extraordinarily difficult options, placed between Scylla and Charybdis as it were, but I also do not doubt that free and uncoerced decision-making can nonetheless emerge from this process and that such decision-making should as a general proposition be respected.
In ruling that the bar-to-office obligation is void as against public policy, the Court *749of Appeals reasoned that "[t]acit permission for prosecutors to engage in such negotiations, even if done innocently at the time, could open the door for the executive branch to use its power of prosecution (and the threat of imprisonment) to remove from elected office those officials who do not align with the political preferences of the executive branch." Smith ,
"We have previously recognized that the decision whether or not to prosecute, and what charge to bring, generally rests in the prosecutor's discretion." People v. Johnson ,
Therefore, I would hold that the bar-to-office obligation is in no way void as *750against public policy and would reverse the Court of Appeals' ruling to the contrary.16
IV. RESPONSE TO LEAD OPINION
In concluding that the bar-to-office obligation is void as against public policy, the lead opinion reasons that "[b]y restricting the eligibility of defendant to run for **683office, the bar-to-office provision restricts the foundational right of voters to select their representatives." Ante at ----. I respectfully disagree because that "foundational right" is not, in my judgment, the proper focus of the required public-policy analysis.
When considering whether to void a contractual obligation on the basis of public policy, the public policy "is to be ascertained 'by reference to the laws and legal precedents and not from general considerations of supposed public interests .' " W.R. Grace & Co. v. Local Union 759 ,
Of course, I agree with the lead opinion that as a broad and general proposition, the people have a "foundational right" in the freedom to vote for individuals of their choice. However, this is largely an aspirational goal that must often give way to contrary interests. In this regard, the people themselves, through their own representative legal processes, have imposed limitations on the universe of individuals from among whom they may elect their public officials. There are minimum,17 and maximum,18 age restrictions on candidates;
*751there are restrictions in terms of a person's criminal history;19 there are restrictions in terms of the process by which candidates must pursue a position on the ballot;20 there are residency restrictions;21 there are **685citizenship restrictions;22 there are restrictions based on the lack of registration as an elector;23 there are educational restrictions;24 there are professional restrictions;25 there are restrictions grounded in the discretion of the Legislature;26 there are restrictions based on the judgments of political conventions;27 there are restrictions based on when a person decides to become a candidate;28 and perhaps most significantly and most pertinently, there is the logical threshold requirement that a person must himself or herself assent to being placed upon the ballot. As such restrictions illustrate, there is no singular "public policy" concerning the right of the voters to elect whomever they choose. I am hard-pressed, in light of these and other restrictions upon the "voters' right" to select representatives of their choice, to understand why today we establish as the "public policy" of this state, after 180 years in which there was no such "public policy," that a bar-to-office obligation, imposed by a court of law, as part of an arm's-length plea agreement, pertaining to a felony offense, and agreed to by both prosecutor and **686defendant, should be rendered void. Once again, the lead opinion has identified no positive law and no specific policy that the bar-to-office obligation allegedly violates.29 It has only identified a broad and generalized public interest in the people voting for persons of their choice that has been limited on many *752occasions in favor of other more particularized interests.30 **687Furthermore, I believe the lead opinion errs by assuming that the bar-to-office obligation would be specifically enforced by the judiciary if defendant decides to seek and hold public office. Ante at 725 ("Regardless of the prosecutor's motivations, a plea bargain that prevents an individual from holding public office has the same effect as a release-dismissal agreement that bars an individual from office."). This, however, is not how the bar-to-office obligation operates. Rather, for the reasons explained earlier in this opinion, defendant fully retains the option of seeking and holding public office, and if he does so, neither the trial court nor the prosecutor possesses the authority to stop him from doing so, or to remove him from public office if elected, because he has violated that obligation of probation. A breach of the bar-to-office obligation does not allow either the prosecutor or the judiciary to specifically enforce the obligation, but simply renders the plea agreement null and void, potentially subjecting the defendant to criminal penalties of which he had been relieved in whole or in part by the agreement.31 Therefore, the bar-to-office obligation does not even restrict the right of voters to elect whomever they choose, including the defendant, but they do not have the right to dragoon into a candidacy a person who views his or her personal interests to lie elsewhere.32 **688*753Of course, as a practical matter, defendant may be less inclined to seek and hold public office because he may want to retain the benefits of his plea agreement, particularly the reduction of his criminal penalties. However, to the extent that defendant is less inclined to seek and hold public office for this reason, this is exclusively a function of his own decision to have, first, engaged in criminal conduct and, secondly, to have agreed upon the bar-to-office obligation. Put simply, he freely decided as part of a plea agreement to forgo his right to hold public office in order to avoid greater criminal penalties, and he is entitled to act in own his best interests in limiting the extent of such exposure. To conclude otherwise would mean that an individual could decide against seeking and holding public office for a variety of self-interested reasons, but could not do so for the single self-interested reason that he or she would be subject to lesser criminal penalties. While the electorate as a general proposition has the right to elect individuals of its own choosing, it does not have the right to elect individuals who themselves choose not to run for public office for their own reasons, whatever these may be.33 **689The lead opinion also identifies a secondary purported "public policy" in voiding the bar-to-office obligation: that public offices "should not be treated like private property." Ante at 726. Once again, while one could hardly disagree that there is such a public interest, this public interest is also too broad and generalized to be considered a genuine "public policy" sufficient to void a bar-to-office provision of a plea agreement; that public offices "should not be treated like private property" is an obvious proposition of good government but because of its very breadth it begs the question whether this interest is best facilitated by disallowing corrupt and criminal politicians from entering into plea agreements not to run for future public office or encouraging them not to do so. It is like most public interests , as opposed to public policies , subject to the normal give-and-take of public and judicial debate. In the end, the lead opinion's "public interest" sounds more as a function of judicial preference than as an actual policy determination undertaken by the people themselves. It is again a merely aspirational goal rather than a concrete and bona fide public policy.34 *754Finally, by concluding that the bar-to-office obligation is void because there is no " 'close nexus' ... between the charged offenses and defendant's conduct in office," ante at 729, I respectfully believe the lead **690opinion fails to give sufficient consideration to the fact that this case is criminal in nature and concerns a voluntary plea agreement. Our law has never before required a "close nexus" between an obligation of probation and the crime committed by the defendant, particularly when the obligation at issue constitutes part of a plea agreement. If a "close nexus" were required by the law, I submit that probation proceedings in general would be transformed. For instance, MCL 771.3(2)(e) provides that "[a]s a condition of probation, the court may require the probationer to ... [e]ngage in community service." And MCL 771.3(2)(q) provides that the court may require the probationer to "[c]omplete his or her high school education or obtain the equivalency of a high school education in the form of a general education development (GED) certificate." I see no reason why a defendant should not be allowed to agree to such obligations of probation, even when the obligations lack a "close nexus" to the crimes that he or she has committed. Such obligations presumably serve the benefit of both the public and the defendant, and it is not the role of this Court to micromanage a novel "close nexus" requirement.
In summary, the bar-to-office obligation is sustained by actual "public policies" grounded in the law of this state, and the allegedly competing "public interests " identified by the lead opinion in voiding that obligation are overly broad, overly generalized, and overly aspirational in nature. The lead opinion has simply not satisfied its burden of showing that the bar-to-office obligation is void as against public policy, and therefore the obligation should be sustained. Accordingly, I respectfully dissent from this part of the lead opinion.
**691V. RESPONSE TO CONCURRENCE
My disagreement with the concurrence is even more substantial. While the lead opinion apparently leaves open the possibility that a defendant could agree to a bar-to-office obligation as part of a plea agreement if there is a "close nexus" between the holding of public office and the crimes committed by the defendant- such as perhaps, when the defendant has accepted bribes while holding public office- the concurrence would establish an unvarying rule that a defendant simply cannot "bargain[ ] away his ability to run for office for something of value to him: less-punitive criminal charges." Ante at 732 (CLEMENT, J., concurring in part). This rule, in my judgment, would undermine the effective prosecution and punishment of public corruption. For example, a public official who violates MCL 750.118 is, by law, "forever disqualified to hold any public office ...." Yet, following the rationale of the concurrence, such an official could never enter into a plea for a reduced charge that included a bar-to-office obligation, as this would constitute "bargaining away his ability to run for office for something of value." While it might well be the case that a plea of any sort is ill-advised in a particular case, I do not understand what "public policy" informs the conclusion that the prosecutor cannot under any circumstance through a voluntary agreement with a defendant seek to ensure that he or she not be returned to public office. This is an entirely judicially manufactured "public policy" that is incompatible *755with this state's actual "public policy," one determined by the elected representatives of the people.
Furthermore, in reciting its rule that a defendant can never "bargain away his ability to run for office,"
**692the concurrence relies on cases that concern corruption or the possibility of corruption in the agreement itself . See, e.g., Benson v. Bawden ,
Defendant voluntarily and with the advice of counsel entered into a plea agreement whereby he agreed to resign from the Legislature and to refrain from holding elected or appointed office for the duration of his five-year probation. He now challenges these obligations while seeking to retain the remainder of the benefit derived from his plea agreement. I agree with the lead opinion that the resignation obligation is moot **694and that the part of the Court of Appeals judgment addressing that issue is properly vacated. However, after consideration of the separation-of-powers principles set forth within our Constitution and the public policy reflected by Michigan law, I would conclude that the bar-to-office obligation of the plea agreement is entirely valid and thus disagree with the lead opinion and the concurrence to the extent they conclude otherwise. Accordingly, I would reverse the Court of Appeals to the extent that it ruled that the bar-to-office obligation was invalid and remand the case to the trial court for further proceedings.
Brian K. Zahra
Kurtis T. Wilder
Footnotes
918 N.W.2d 718 (People v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.