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146867 - Makowski v Governor, et. al.

Matthew Makowski,
Paul D. Reingold
(Appeal from Ct of Appeals)
(Ingham – Ball, R.)
Governor and Secretary of State,
A.    Peter Govorchin


​In 1988, 20-year-old Matthew Makowski was a manager at a Dearborn health club when he arranged for another young health club employee, Pietro Puma – whom Makowski sent with cash on a bank errand – to be robbed en route to the bank. Makowski planned to split the money with the robber. Puma resisted, and the robber pulled out a knife and stabbed Puma, killing him.


A jury convicted Makowski of first-degree felony murder (murder committed during the commission of a serious felony) and armed robbery. He was sentenced to life in prison without the possibility of parole.


In January 2010, Makowski filed paperwork for a commutation of his nonparolable life sentence; the Michigan parole board, after holding a hearing on Makowski’s application, sent the application to then-Governor Jennifer Granholm, recommending that she grant Makowski’s request. Granholm was then near the end of her final term as governor. On December 22, 2010, Granholm signed the formal commutation document declaring, “I do hereby commute the sentence of Matthew Makowski,” thereby making him immediately eligible for consideration for parole. That same day, the signed commutation was sent to the Secretary of State’s office, where the gold-foil Great Seal of the State and auto-penned signature of the Secretary of State were affixed to the document. The document was accepted for filing by the Secretary of State, and the original was returned to the Granholm for delivery to the Michigan Department of Corrections. An e-mail was sent by Granholm’s deputy legal counsel to, among others, the chief legal counsel, the chair of the parole board, and the director of the Michigan Department of Corrections, announcing the commutation. The commutation was delivered to and accepted by the MDOC. Makowski, his family, and his lawyer were informed of the commutation, and the commutation was reported by the media.


But Puma’s family, on learning of Granholm’s decision, protested; because the family had not registered with the parole board or the prosecutor, they had not been notified of the public hearing on Makowski’s commutation application. (Under MCL 791.244, “each victim who requests notice pursuant to the Crime Victim’s Rights Act” must be sent written notice of a commutation hearing.)


Two days after the commutation was signed and filed, Granholm’s staff took steps to withdraw the commutation: MDOC’s public information officer e-mailed the parole board chair, saying, “I just got off the phone with the Governor’s Office. They will be announcing that they’re pulling back this commutation.” At the request of the Governor’s legal counsel, the parole board chair informed the board administrator that the commutation was being “withdrawn.” On December 27, the Governor’s deputy legal counsel went to the Secretary of State’s office, retrieved all copies of the commutation, and destroyed them. The original commutation document was destroyed as well. (Although Makowski’s request came before the parole board again after Governor Rick Snyder took office, that board recommended against commuting Makowski’s sentence.)


On May 11, 2011, Makowski sued the governor and secretary of state in Ingham Circuit Court, seeking declaratory judgment and injunctive relief. The circuit judge, citing the separation of powers, ruled that he lacked the authority to determine whether Granholm exceeded her constitutional authority in attempting to revoke or rescind the commutation: “This court is of the opinion . . . that it has no authority, i.e. no jurisdiction, to examine and/or approve the exercise by the governor of her constitutional authority to commute a prison sentence.”


In a published decision, the Court of Appeals affirmed, ruling that Granholm’s action presented a political question that the court lacked the power to review. In Michigan, the executive power is vested in the Governor, and a decision to commute a prisoner’s sentence is within the scope of the governor’s authority as set forth in Article V, section 14 of the Michigan Constitution, the appellate court explained. “Plaintiff contends, however, that the former governor granted his application for commutation and, by changing her decision, she exceeded her constitutional power. We conclude that a resolution of the issue by the trial court, or this Court, would constitute mere guess and speculation, not the application of judicial expertise. There are no judicially discoverable and manageable standards of review regarding the matters of how and precisely when a commutation application is considered ‘granted,’ including the procedural formalities required for a commutation decision to become final and irrevocable…. The judiciary power does not include the power to legislate how and when a commutation decision becomes final and irrevocable…. Nor can the judiciary dictate to the governor what actions are proper and necessary in the exercise of commutation power.”


After the Court of Appeals denied his motion for reconsideration, Makowski appealed to the Supreme Court. Among other matters, he argued that Michigan courts do have the power to determine whether Granholm exceeded her constitutional authority when she attempted to revoke or rescind her commutation of his sentence. Article V, section 14 does not grant the governor the power to revoke or rescind a commutation after it has been issued; because Granholm tried to exercise a power she did not have, Michigan courts could properly rule on the issue and overturn her efforts, Makowski argued.


In a July 5, 2013 order, the Supreme Court granted leave to appeal: “The parties shall include among the issues to be briefed: (1) what authority, if any, the courts of this State have to review actions taken by the Governor under the authority conferred by 1963 Const, Art V, § 14; (2) how the separation of powers doctrine and the principle of nonjusticiable political questions relate to that constitutional authority; (3) whether the commutation of the plaintiff’s sentence was completed before the Governor took steps to revoke it and whether the Court has the authority to address this question; (4) whether the power to grant clemency under the cited constitutional provision also includes the power to rescind, revoke or otherwise overturn a decision to grant clemency; and (5) to the extent the courts have the authority to address the question, whether the Governor in this case exceeded the authority granted by the constitution by revoking the commutation of sentence given to the plaintiff after it was signed by the Governor, sealed by and filed with the Secretary of State, and delivered to the Michigan Department of Corrections.”