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156353 - People v Virgil Smith

The People of the State of Michigan,
Jason W. Williams
(Appeal from Ct of Appeals)
(Wayne – Talon, L.)
Virgil Smith,
Katherine L. Marcuz


In May 2015, State Senator Virgil Smith was charged with domestic violence, malicious destruction of personal property, felonious assault, and felony-firearm. The Wayne County Prosecutor entered into a plea agreement with Smith that required him to resign from office and not hold elective or appointed office during a five-year probationary term. The circuit court accepted the plea and sentenced Smith to serve five years of probation with the first ten months in jail, but then struck the provisions that barred Smith from holding elective or appointed office as violating the state constitution’s separation of powers clause. See Const 1963, art 3, § 2. The circuit court also denied the prosecutor’s motion to vacate the plea. The Court of Appeals dismissed the prosecutor’s appeal as moot because Smith had since resigned his Senate seat, and the panel presumed that Smith would not run for office. When Smith chose to run for the Detroit City Council, the prosecutor moved for reconsideration, which the Court of Appeals denied. In the August 2017 primary election, Smith finished in second place and advanced to the November general election. The prosecutor filed an application for leave to appeal in the Supreme Court, asserting the need for an immediate decision to timely prepare the ballots. The Supreme Court ordered the case remanded to the Court of Appeals for expedited consideration as on reconsideration granted. On remand, in a split published opinion, the Court of Appeals majority upheld the circuit court’s invalidation of the plea agreement provisions that required Smith to resign from office and to forgo holding public office during his probationary term. The dissenting judge asserted that elected officials may voluntarily resign from office as a result of a plea agreement without implicating separation of powers. The Supreme Court has denied the motion for immediate consideration, and directed oral argument on the prosecutor’s application for leave to appeal to address: (1) whether a prosecutor’s inclusion of a provision in a plea agreement that prohibits a defendant from holding public office violates the separation of powers, see Const 1963, art 3, § 2; see also United States v Richmond, 550 F Supp 605 (ED NY, 1982), or is void as against public policy, Davies v Grossmont Union High Sch Dist, 930 F2d 1390, 1392-1393 (CA 9, 1991); (2) whether the validity of the provision requiring defendant to resign from public office was properly before the Court of Appeals because defendant resigned from the Senate after the circuit court struck that part of the plea agreement and, if so, whether it violates the separation of powers or is void as against public policy; and (3) whether the trial court abused its discretion by voiding terms of the plea agreement without affording the prosecutor an opportunity to withdraw from the agreement, see People v Siebert, 450 Mich 500, 504 (1995).