Order                                                                        Michigan Supreme Court
                                                                                   Lansing, Michigan

  November 5, 2010                                                                         Marilyn Kelly,
                                                                                               Chief Justice

  140522                                                                            Michael F. Cavanagh
                                                                                      Maura D. Corrigan
                                                                                     Robert P. Young, Jr.
                                                                                     Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                   Diane M. Hathaway
            Plaintiff-Appellee,                                                     Alton Thomas Davis,
                                                                                                    Justices
  v                                                       SC: 140522
                                                          COA: 293861
                                                          Wayne CC: 09-004275-FC
  RODNEY CARTER,
           Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the December 10, 2009
  order of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of
  granting leave to appeal, we REMAND this case to the Wayne Circuit Court to determine
  whether a violation of the mootness doctrine occurred in this case, see People v
  Richmond, 486 Mich 29 (2010), and, if so, to order proper relief. See id. and People v
  Richmond, rehearing granted in part, 486 Mich 1041 (2010).

         MARKMAN, J. (concurring).

          I concur with this Court’s order remanding to the trial court to determine whether
  a violation of the mootness doctrine occurred in this case, and, if so, to order the proper
  relief. In People v Richmond, 486 Mich 29, 32 (2010), we held that “the prosecution’s
  voluntary dismissal of the charges rendered its appeal moot . . . .” Here, in proceedings
  that predated Richmond, but which, needless to say, did not predate the mootness
  doctrine, see, e.g., Anway v Grand Rapids R Co, 211 Mich 592, 610 (1920), the
  prosecutor voluntarily dismissed the case after a district court suppression ruling, thereby
  rendering moot his appeal to the circuit court. As explained below, I see no reason to
  deviate from the general rule giving Richmond “full retroactive effect.” Pohutski v City
  of Allen Park, 465 Mich 675, 696 (2002).

         First, I am not persuaded by the dissent’s assertion that the prosecutorial practice
  at issue here was “routine before Richmond.” If so, it is hard to understand why
  Richmond would have been the first case ever to specifically address this practice, and,
  indeed, in at least my eleven years on this Court, the first case in which the practice was
  even presented to this Court. Were this a genuinely commonplace procedure, it does
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seem as if the obvious mootness question involved would have at least been engaged at
some previous juncture in the appellate system. Moreover, the prosecutor in Richmond,
representing the largest county in this state, himself has acknowledged that the “dismiss-
then-appeal” procedure was employed on only the “rare occasion.”

        Second, our general principles of retroactivity support the application of Richmond
in this case. Generally, “judicial decisions are given full retroactive effect.” Pohutski,
465 Mich at 696. In determining whether a judicial decision should be applied
retroactively, this Court considers: “(1) the purpose to be served by the new rule; (2) the
extent of reliance on the old rule; and (3) the effect of retroactivity on the administration
of justice.” Id. The purpose of Richmond is to preserve and enforce the long-standing
rule that courts do not reach moot questions. Whatever its supposed prevalence pre-
Richmond, the “dismiss-then-appeal” procedure was never authorized by any judicial
decision or court rule of this state, and it clearly violated the mootness doctrine, a well-
understood doctrine of justiciability that considerably preceded Richmond. Thus, I
neither believe that the “dismiss-then-appeal” procedure can fairly be deemed an “old
rule,” nor that taking the mootness doctrine seriously can be deemed a “new rule.”

        Further, I do not believe that applying Richmond retroactively could in any
conceivable way be described as having an adverse effect on the “administration of
justice,” especially since, as our order on rehearing clarified, People v Richmond, 486
Mich 1041 (2010), the prosecutor under the instant circumstances can recharge the
defendant. The dissent’s concerns in this regard, including its concern about any
violation of the Michigan Rules of Professional Conduct, are fully addressed in that
order, which was joined by the dissenting justices. To further ensure that there is no
adverse impact upon the “administration of justice,” this Court has determined to review
this matter again at a future administrative conference. In light of these facts, in my
view, refusing to apply Richmond retroactively would have a far worse impact on the
“administration of justice,” by (a) allowing the prosecutor to evade the mootness
doctrine, (b) by allowing a conviction to stand even though the underlying case has
already been dismissed, and (c) by undermining the authority and credibility of the
precedents of this Court.

       In sum, there is no reason to deviate from the general rule giving Richmond “full
retroactive effect.”1 Because it appears that defendant is entitled to relief under
Richmond and our principles of retroactivity, I fully concur with the Court’s order.

1
  The dissent argues that Richmond should be given limited retroactive effect, citing
People v Cornell, 466 Mich 335, 367, in which we accorded limited retroactive effect to
cases pending on appeal in which the Cornell issue had been preserved. However, as the
dissent itself appears to recognize, Cornell’s standards are inapt because “as Richmond
involves the application of the mootness doctrine, and the mootness doctrine is
jurisdictional, prior preservation is unnecessary.” The dissent nevertheless would limit
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         CORRIGAN, J. (dissenting).

       I respectfully dissent from the Court’s order remanding to the trial court to
determine whether a violation of the mootness doctrine occurred in light of People v
Richmond, 486 Mich 29 (2010). The concurring justice supports giving Richmond full
retroactive effect, yet the other justices in the majority have not clarified their view when
perhaps they should. As a result, I ask whether this Court intends Richmond to apply
with full retroactive effect or whether it is leaving this determination to the trial court. In
any case, I believe that giving Richmond full retroactive effect is improper under our
retroactivity standards and will cause substantial problems for the effective
administration of justice. Accordingly, I support limiting the retroactive effect of
Richmond to cases pending on appeal when Richmond was decided. See People v
Cornell, 466 Mich 335, 367 (2002) (applying limited retroactivity to those cases pending
on appeal in which the issue has been raised and preserved).2

        After an unfavorable evidentiary ruling resulting in the suppression of evidence,
the prosecutor, acting under procedures routine before Richmond, moved for dismissal.
The record reflects that the district court assured the parties that the issues were preserved
under the circumstances. Defense counsel explicitly indicated no objection on the
record.3 In treating any appeal after a voluntary dismissal by the prosecutor as moot, this
Court has nullified a routine practice and placed prosecutors in an untenable position.
See Richmond, 486 Mich at 42-48 (CORRIGAN, J., dissenting). The Richmond majority,
in its characterization of this practice as a “procedural misstep,” Richmond, 486 Mich at

Richmond’s retroactive effect to cases pending on appeal because Richmond “created a
new rule.” For the reasons earlier explained, I respectfully disagree that taking the
mootness doctrine seriously, and applying it consistently, can in any way be deemed a
“new rule.”
2
  As Richmond involves the application of the mootness doctrine, and the mootness
doctrine is jurisdictional, prior preservation is unnecessary. Nevertheless, because I
believe that Richmond created a new rule, I support limiting its retroactive effect to cases
pending on appeal when Richmond was decided.
3
    Specifically, the following exchange took place:
         Prosecutor: Your Honor, if the Court has suppressed the evidence we’re
         unable to proceed in this matter and would be forced to dismiss the case.
         Defense Counsel:    No objection.
         The Court: The matter will be dismissed at this time. And I know that
         issues relative to appeal are preserved under the circumstances.
         Defense Counsel: Thank you very much. [Preliminary Examination
         Transcript, July 30, 2007, p 18.]
                                                                                            4

40, evidenced disbelief that any such practice ever existed. But see Gillespie, Michigan
Criminal Law and Procedure Practice Deskbook (2d ed, 2010), § 1:36, p 19, and
Gillespie, Michigan Criminal Law and Procedure Practice Deskbook (2d ed, 1998),
§ 1:30, pp 16-17 (acknowledging the use of this practice as part of a stipulated dismissal
necessitated by a dispositive evidentiary ruling). Nevertheless, by refusing to grant leave,
the majority now forecloses any additional proofs about such a practice and eliminates
the possibility of learning whether the rule adopted in Richmond is indeed a new rule.

        Beyond the disturbing gamesmanship that Richmond permits for defendants and
judges seeking to insulate a suppression decision from appellate review, if Richmond is
given full retroactive effect, it likely will encourage numerous motions under MCR 6.500
for relief from judgment from previously convicted defendants seeking to challenge their
convictions in circumstances where an appeal followed a prosecutor’s dismissal. Such
belated challenges, in which the relevant evidence may be missing or may have been
destroyed, could result in the wrongful reversal of many otherwise valid convictions. By
not taking action to accord Richmond limited retroactive effect, the majority effectively
invites future problems.

                                 I. UNDERLYING FACTS

       Following the execution of a search warrant for the house where defendant was
staying, defendant was charged with possession with intent to deliver over 1,000 grams
of cocaine, possession of over 1,000 grams of cocaine, and felony-firearm. At the
preliminary examination, the district court granted defendant’s motion to suppress the
evidence on the basis that the search warrant was deficient. The prosecution then moved
to dismiss the case. In granting the motion to dismiss, the district court stated that “issues
relative to appeal” were preserved under these circumstances and defense counsel did not
object or otherwise disagree in any way with the district court’s statement.

       The prosecution subsequently obtained review of the district court’s evidentiary
decision in the circuit court. The circuit court peremptorily reversed the district court’s
decision and remanded the case to the district court. After rehearing the case, the district
court bound defendant over to the circuit court for trial. Defendant pleaded guilty to
possession with intent to deliver over 1,000 grams of cocaine and felony-firearm. He
then filed an application for leave to appeal with the Court of Appeals, which denied
leave. Defendant subsequently filed an application for leave to appeal in this Court,
arguing in part that the prosecution waived its right to an appeal by voluntarily dismissing
the case against him.

                                       II. ANALYSIS

     Because the relevant proceedings took place before this Court’s opinion in
Richmond, the pertinent question is whether Richmond should be given retroactive effect.
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The general rule is that judicial decisions are given full retroactive effect. Pohutski v City
of Allen Park, 465 Mich 675, 695-696 (2002). Nevertheless, “a more flexible approach is
warranted where injustice might result from full retroactivity.” Id. at 696. Three factors
to be weighed in determining whether a decision should have retroactive application are:
“(1) the purpose of the new rules; (2) the general reliance on the old rule[;] and (3) the
effect of retroactive application of the new rule on the administration of justice.” People v
Sexton, 458 Mich. 43, 60-61 (1998), citing People v Hampton, 384 Mich 669, 674
(1971). Other than the concurring justice, the majority does not answer the question of
what type of retroactive effect is appropriate here. Regardless, I believe that the
retroactivity factors weigh in favor of granting Richmond limited retroactive effect and
against full retroactive application of Richmond.

        First, the decision in Richmond, which applies the mootness doctrine in
circumstances of a prosecutor’s voluntary dismissal, created a new rule in applying this
doctrine to a previously routine practice. The majority in Richmond noted that one option
available to prosecutors who opt to voluntarily dismiss in this scenario is to simply
reinstate charges. Richmond, 486 Mich at 36, n 3. However, this option is “problematic
because it implies that the prosecution could have simply ‘unmooted’ the case at any time
by reinstating the charges,” when, in fact, “MRPC 3.1 provides that ‘[a] lawyer shall not
bring or defend a proceeding, or assert or controvert an issue therein, unless there is a
basis for doing so that is not frivolous.’” Richmond, 486 Mich at 45-46 (CORRIGAN, J.,
dissenting). Thus, the purpose of the new rule would not be served by full retroactive
application because it may place prosecutors who relied on the old rule in the untenable
situation of either violating the MRPCs by reinstating charges or permitting a valid
conviction to be wiped out.

       Second, as the facts of this case show, the bench and bar previously relied on the
former practice of voluntary dismissals in the face of an unfavorable evidentiary ruling in
criminal cases. See Gillespie, § 1:36, p 19. Here, the district court, in granting the
prosecution’s motion to dismiss, explicitly noted that the issues were preserved for
appeal. Although the rule that courts cannot decide moot questions is longstanding,
applying it to the circumstances in Richmond established a new rule. Further, the prior
practice had general statutory authorization under MCL 770.12(1), which explicitly gives
the prosecutor an appeal as of right from a final order. Richmond, 486 Mich at 44
(CORRIGAN, J., dissenting). Thus, the significant reliance on the prior practice weighs
against the full retroactive application of Richmond.

       Third, if Richmond is given full retroactive effect it will negatively impact the
efficient administration of justice. Vacating convictions retroactively in circumstances
where Richmond applies will place prosecutors at a decided disadvantage. In addition to
the already stated issue involving the MRPCs, because of the passage of time,
                                                                                                               6

prosecutors likely will face significant challenges gaining access to the necessary
evidence and witnesses. Moreover, if Richmond is applied with full retroactive effect, it
will place even more of a burden on the already stressed resources of prosecutor’s offices
and our judiciary, and of course, the wrongful release of convicted criminals endangers
our communities. Accordingly, I respectfully dissent from the Court’s order remanding
to the trial court to determine whether a violation of the mootness doctrine occurred in
light of Richmond.

      YOUNG, J., joins the statement of CORRIGAN, J.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         November 5, 2010                    _________________________________________
       p1102                                                                 Clerk
