Elected Official’s Plea Deal Could Not Keep Him From Seeking Public Office

A plea agreement reached by a former Michigan senator was contrary to public policy because it prohibited the senator from seeking public office during his five-year probationary period, according to the Michigan Supreme Court.

In People v. Smith (Docket No. 156353), criminal charges were filed against State Sen. Virgil Smith after he shot up his ex-wife’s vehicle in May 2015. Smith entered into a plea deal with the Wayne County Prosecutor’s Office, wherein he admitted to malicious destruction of property in exchange for dismissing domestic violence, firearm and felonious assault charges. He was sentenced to 10 months in jail and five years’ probation.

Smith’s plea agreement included a provision that he would resign his Senate seat and not run for public office during his five-year probationary term. However, at sentencing, the trial judge voided those parts of the plea agreement requiring Smith to resign from the Senate and not seek public office during his probation period. The trial judge declared these provisions were unconstitutional and contrary to public policy.

The prosecutor filed a motion to vacate Smith’s entire plea agreement because it was not accepted in its entirety by the trial court. The trial court denied the motion and the prosecutor appealed to the Michigan Court of Appeals.

Meanwhile, on March 31, 2016 - three days after he began serving his jail sentence - Smith resigned from the Michigan Senate.

In April 2017, the Court of Appeals dismissed the prosecutor’s appeal as moot in an unpublished decision (Docket No. 332288). According to the three-judge panel, Smith had resigned his seat and it appeared he had no intention of vying for public office during his probationary term.

However, shortly after the Court of Appeals denied the prosecutor’s appeal as moot, Smith filed a petition to run for Detroit City Council. As a result, the prosecutor filed a motion for reconsideration of the appeal. The Court of Appeals denied the motion.

The prosecutor appealed. The Michigan Supreme Court remanded the case for reconsideration and instructed the Court of Appeals to issue a decision by 5 p.m. on August 25, 2017.  

A split Court of Appeals affirmed its previous decision, finding the plea-agreement provisions violated the constitutional separation of powers doctrine and infringed on the right of Smith’s constituents to determine whether he was qualified to hold office. The Court of Appeals also said the trial court did not abuse its discretion by denying the prosecutor’s motion to vacate the plea. One judge dissented, finding the trial court abused its discretion.

The prosecutor again appealed. In a somewhat fractured decision, the Michigan Supreme Court affirmed in part and reversed in part the Court of Appeals.

No Bar To Holding Office

In an opinion by Justice David Viviano, joined by Justice Bridget McCormack and Justice Richard Bernstein, as well as an opinion by Justice Elizabeth Clement, the Supreme Court said the provision barring Smith from holding office was void because it was against public policy.

According to Viviano, preventing Smith from seeking public office “would allow political considerations to enter into the prosecutor’s charging calculus” and would restrict “the foundational right of voters” to choose their representatives. “A prosecutor’s charging discretion is a background principle that does not entitle a prosecutor to impair elections,” he wrote. “Nor does the right to enter plea bargains - or the related need for efficient resolution of criminal prosecutions - justify this bar-to-office provision.”

Viviano further found the trial court erred by not allowing the prosecutor to withdraw from the plea agreement. He explained that when a trial court rejects certain terms of a plea agreement while keeping other parts intact, “the trial court essentially imposes a different plea bargain on the prosecutor than he or she agreed to.” As a result, the trial court “infringes on the prosecutor’s charging discretion. This is impermissible.”

In a separate opinion, Justice Elizabeth Clement agreed that the bar-to-office provision was invalid. She also agreed the resignation provision was a moot issue and the trial court should have permitted the prosecutor to withdraw from the plea agreement after parts of it were voided.

Chief Justice Stephen Markman dissented in part, joined by Justice Brian Zahra and Justice Kurtis Wilder. The justices disagreed that the bar-to-office provision was improper. Smith “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,” Markman wrote. “He now challenges these obligations while seeking to retain the remainder of the benefit derived from his plea agreement. … 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.”

Meanwhile, the justices agreed the validity of the resignation provision did not need to be addressed. According to the justices, it was a moot issue because Smith had already resigned. Therefore, that part of the Court of Appeals decision holding the resignation provision invalid was vacated.

In conclusion, the case was remanded to the trial court for further consideration of the plea agreement.

New Developments

Since the Supreme Court’s decision was issued, the Smith case has returned to the trial court.

In November, a Wayne County trial judge granted the prosecutor’s request to withdraw the plea agreement. As a result, the original charges against Smith have been reinstated, including felonious assault, a firearms charge, malicious destruction of property and domestic violence.

According to reports, a jury trial is set to take place March 4, 2019.