                                                                                       Michigan Supreme Court
                                                                                             Lansing, Michigan
                                                                    Chief Justice:         Justices:



Syllabus                                                            Robert P. Young, Jr.   Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                           Stephen J. Markman
                                                                                           Diane M. Hathaway
                                                                                           Mary Beth Kelly
                                                                                           Brian K. Zahra
This syllabus constitutes no part of the opinion of the Court but has been                 Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.                   John O. Juroszek


                                                PEOPLE v MACK

       Docket No. 143244. Decided December 12, 2012.

              Larry J. Mack was convicted in the Isabella Circuit Court of felonious assault, MCL
       750.82; three counts of fourth-degree child abuse, MCL 750.136b(7); reckless driving, MCL
       257.626; and failure to stop at the scene of an accident, MCL 257.620. The charges stemmed
       from a car chase in which defendant pursued and, at one point, hit another car containing his
       fiancée, her three children, and her parents. The Court of Appeals, METER, P.J., and SAAD and
       WILDER, JJ., affirmed in an unpublished opinion per curiam issued April 21, 2011 (Docket No.
       295929), and defendant sought leave to appeal.

              In a memorandum opinion signed by Chief Justice YOUNG and Justices MARKMAN,
       MARY BETH KELLY, and ZAHRA, the Supreme Court, in lieu of granting leave to appeal and
       without hearing oral argument, held:

              MCL 768.27b, which in certain instances expands the admissibility of domestic-violence
       other-acts evidence beyond the scope permitted by MRE 404(b)(1), does not infringe on the
       Supreme Court’s authority to establish rules of practice and procedure under article 6, § 5 of the
       1963 Michigan Constitution for the reasons articulated in People v Watkins, 491 Mich 450
       (2012), which addressed a very similar issue and controls this case.

               Affirmed.

               Justice MARILYN KELLY, joined by Justices CAVANAGH and HATHAWAY, dissenting,
       would have granted defendant’s application for leave to appeal in order to reconsider Watkins,
       which was wrongly decided. The majority’s extension of the reasoning used in Watkins to this
       case rendered this case wrongly decided as well. Because MCL 768.27b is a procedural rule that
       conflicts with MRE 404(b), the Legislature overstepped its constitutional authority under the
       separation of powers when enacting it.




                                             ©2012 State of Michigan
                                                                               Michigan Supreme Court
                                                                                     Lansing, Michigan
                                                         Chief Justice:          Justices:



Opinion                                                  Robert P. Young, Jr. Michael F. Cavanagh
                                                                              Marilyn Kelly
                                                                              Stephen J. Markman
                                                                              Diane M. Hathaway
                                                                              Mary Beth Kelly
                                                                              Brian K. Zahra

                                                                FILED DECEMBER 12, 2012

                              STATE OF MICHIGAN

                                     SUPREME COURT


 PEOPLE OF THE STATE OF MICHIGAN,

               Plaintiff-Appellee,

 v                                                                No. 143244

 LARRY JERARD MACK,

               Defendant-Appellant.


 BEFORE THE ENTIRE BENCH

 MEMORANDUM OPINION.

        At issue is whether MCL 768.27b infringes on this Court’s authority to establish

 rules of “practice and procedure” under the Michigan Constitution. The Constitution

 provides that “[t]he supreme court shall by general rules establish, modify, amend and

 simplify the practice and procedure in all courts of this state.” Const 1963, art 6, § 5.

        MCL 768.27b addresses the admissibility of evidence in domestic-violence cases

 that a defendant has committed other acts of domestic violence. It provides in part:

              (1) Except as provided in subsection (4), in a criminal action in
        which the defendant is accused of an offense involving domestic violence,
      evidence of the defendant’s commission of other acts of domestic violence
      is admissible for any purpose for which it is relevant, if it is not otherwise
      excluded under Michigan rule of evidence 403.

                                         * * *

            (4) Evidence of an act occurring more than 10 years before the
      charged offense is inadmissible under this section, unless the court
      determines that admitting this evidence is in the interest of justice. [MCL
      768.27b.]

The statute thus in certain instances expands the admissibility of domestic-violence other-

acts evidence beyond the scope permitted by MRE 404(b)(1), which states:

             Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity therewith. It
      may, however, be admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, scheme, plan, or system in doing an act,
      knowledge, identity, or absence of mistake or accident when the same is
      material, whether such other crimes, wrongs, or acts are contemporaneous
      with, or prior or subsequent to the conduct at issue in the case.

      In People v Watkins, 491 Mich 450; 818 NW2d 296 (2012), this Court addressed

an issue very similar to that presented here. The statute at issue in Watkins, MCL

768.27a, addresses the admissibility of evidence that a defendant accused of certain

sexual offenses against a minor has committed other sexual offenses against a minor.

Though that statute also in certain circumstances expanded the admissibility of such

evidence beyond the scope permitted by MRE 404(b)(1), we determined that it did not

infringe on this Court’s authority under Const 1963, art 6, § 5.        We hold that the

reasoning of Watkins fully controls in this case. For the reasons articulated in Watkins,

we conclude that MCL 768.27b does not infringe on this Court’s authority to establish

rules of “practice and procedure” under Const 1963, art 6, § 5. Likewise, the dissent’s



                                            2
arguments here—the same as those advanced by the dissent in Watkins—are

unpersuasive for the reasons articulated by the Court in Watkins.

      In lieu of granting defendant’s application for leave to appeal, we affirm the

judgment of the Court of Appeals.1



                                                       Robert P. Young, Jr.
                                                       Stephen J. Markman
                                                       Mary Beth Kelly
                                                       Brian K. Zahra




1
 People v Mack, unpublished opinion per curiam of the Court of Appeals, issued
April 21, 2011 (Docket No. 295929).



                                            3
                              STATE OF MICHIGAN

                                      SUPREME COURT


PEOPLE OF THE STATE OF MICHIGAN,

                Plaintiff-Appellee,

v                                                             No. 143244

LARRY JERARD MACK,

                Defendant-Appellant.


MARILYN KELLY, J. (dissenting).

         As noted by the majority, at issue is whether MCL 768.27b infringes on this

Court’s constitutional authority to establish rules of practice and procedure. Relying on

its reasoning in People v Watkins,1 which considered a similar statute, MCL 768.27a, the

majority holds that MCL 768.27b does not infringe on this Court’s constitutional

authority. I disagree. For the reasons stated in my dissenting opinion in Watkins, that

case was wrongly decided. The majority’s extension of the reasoning used in Watkins to

this case renders this case wrongly decided as well.

         Our Constitution provides this Court with the express authority to regulate rules of

practice and procedure.2 As I explained in Watkins, statutes like MCL 768.27b infringe

on that authority.3 The majority’s conclusion to the contrary, both in Watkins and in this

1
    People v Watkins, 491 Mich 450; 818 NW2d 296 (2012).
2
 Const 1963, art 6, § 5 provides the judiciary with the authority to “establish, modify,
amend and simplify the practice and procedure in all courts of this state.”
3
    See Watkins, 491 Mich at 499-507 (MARILYN KELLY, J., dissenting).
case, is imbued with the flawed reasoning of McDougall v Schanz.4                McDougall

effectively neutered this Court’s constitutional authority to regulate rules of practice and

procedure.5 Nonetheless, as in Watkins, if McDougall’s analysis were faithfully applied

here, the majority would recognize that MCL 768.27b is a quintessential procedural rule

involving the dispatch of judicial business. Because that statute conflicts with MRE

404(b) and regulates a matter of procedure, the Legislature overstepped its constitutional

authority when enacting it.      Thus, the statute is unconstitutional and violates the

constitutional separation of powers.6

        For these reasons, I would grant defendant’s application for leave to appeal in

order to reconsider Watkins.


                                                         Marilyn Kelly
                                                         Michael F. Cavanagh
                                                         Diane M. Hathaway




4
    McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).
5
  McDougall held that this Court’s authority over “practice and procedure” does not
include all matters relating to the admission of evidence. Id. at 29. Instead, it held that a
legislatively created rule of evidence does not violate article 6, § 5 of the 1963 Michigan
Constitution unless “no clear legislative policy reflecting considerations other than
judicial dispatch of litigation can be identified . . . .” Id. at 30 (quotation marks and
citations omitted).
6
  Const 1963, art 3, § 2 provides that “[t]he 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 branch except as expressly provided
in this constitution.”



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