Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  October 8, 2010                                                                       Marilyn Kelly,
                                                                                            Chief Justice

  Rehearing No. 569                                                              Michael F. Cavanagh
                                                                                   Maura D. Corrigan
                                                                                  Robert P. Young, Jr.
                                                                                  Stephen J. Markman
  2 March 2010                                                                    Diane M. Hathaway
                                                                                 Alton Thomas Davis,
                                                                                                 Justices
  138959
  138969

  PEOPLE OF THE STATE OF MICHIGAN,
            Plaintiff-Appellant,
                                                        SC: 138959
  v                                                     COA: 269505
                                                        Saginaw CC: 02-021097-FH
  TOD KEVIN HOUTHOOFD a/k/a TODD                                    04-024765-FH
  KEVIN HOUTHOOFD,                                                  05-025865-FH
             Defendant-Appellee.
  _______________________________________
  PEOPLE OF THE STATE OF MICHIGAN,
             Plaintiff-Appellee,
                                                        SC: 138969
  v                                                     COA: 269505
                                                        Saginaw CC: 02-021097-FH
  TOD KEVIN HOUTHOOFD a/k/a TODD                                    04-024765-FH
  KEVIN HOUTHOOFD,                                                  05-025865-FH
             Defendant-Appellant.
  _______________________________________


        On order of the Court, the motion for rehearing is considered, and it is DENIED.

          KELLY, C.J. (dissenting). I would grant defendant’s motion for rehearing and
  vacate this Court’s opinion of July 31, 2010. In that opinion, the Court held that
  improper venue is not a basis for granting a new trial in a criminal case. Hence, for the
  first time, improper venue is subject to harmless error analysis under MCL 769.26 and
  MCL 600.16451 applies to criminal proceedings.


  1
    MCL 600.1645 states that “[n]o order, judgment, or decree shall be void or voidable
  solely on the ground that there was improper venue.”
                                                                                                                 2


        The effect of this opinion is to contravene years of case law and to absolve
prosecutors from the need to prove venue beyond a reasonable doubt. As I stated in my
dissenting opinion, “the majority opinion suffers from a fundamental defect. It makes
sweeping changes in an important area of the law without considering existing precedent
or the ramifications of the changes.”2
        The opinion is also internally inconsistent. Whereas it subjects venue errors to
harmless error review, it also makes applicable MCL 600.1645, a statute that prohibits
granting a new trial for venue errors, whether harmful or not.
        The points defendant makes in his motion for rehearing only heighten my
concerns about the opinion. Defendant reviews the extent of venerable law that the
opinion changes.3 He notes that law enforcement officers and county prosecutors
henceforth will have free reign to control venue in criminal cases. I agree with defendant
that this transfer of control raises due process concerns that the Court did not adequately
consider when the opinion was written.
        I believe that the Court should grant rehearing and order additional briefing and
oral argument. It should then fully consider the arguments given short shrift in its initial
review of the case, as well as the additional arguments that defendant raises in his
motion.

         CAVANAGH, J., would grant rehearing.

      DAVIS, J., not participating. I recuse myself and am not participating because I
was on the Court of Appeals panel in this case. See MCR 2.003(B).




2
    People v Houthoofd, 487 Mich ___, ___ (2010) (KELLY, C.J., dissenting).
3
  See, e.g., Hill v Taylor, 50 Mich 549, 551 (1883) (“[I]t cannot be seriously claimed that
the prosecution can be had in a county where the crime was not actually or in
contemplation of law perpetrated.”).



                           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.
                           October 8, 2010                     _________________________________________
                                                                               Clerk
