People v. Carlin

571 N.W.2d 742 (1997) 225 Mich. App. 480 PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gerard Leo CARLIN, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Gerard Leo CARLIN, Defendant-Appellee. Docket Nos. 186263, 190563. Court of Appeals of Michigan. Submitted April 9, 1997, at Lansing. Decided September 23, 1997, at 9:10 a.m. Released for Publication December 23, 1997. *744 Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Joyce F. Todd, Chief, Appellate Div., and Anica Letica, Asst. Pros. Atty., for People. Thomas Kizer, Jr., Howell, for defendantappellee. Before MICHAEL J. KELLY, P.J., and WAHLS and GAGE, JJ. *743 WAHLS, Judge. In Docket No. 186263, defendant was charged pursuant to M.C.L. § 750.505; M.S.A. § 28.773 with six counts of the common-law offense of misconduct in office. The district court bound defendant over for arraignment on five counts. The prosecutor appeals as of right the circuit court's order granting defendant's motion to dismiss the five remaining counts. We affirm. In Docket No. 190563, the district court dismissed fourteen counts of misconduct in public office and one count of removal, mutilation, or destruction of official records, M.C.L. § 750.491; M.S.A. § 28.759. The prosecutor appeals by leave granted the circuit court's order affirming the district court's order. The appeals were consolidated. We affirm. I In both appeals, the prosecution argues that the circuit court erred as a matter of law in ruling that defendant was not a public official who could be charged with misconduct in office. We disagree. In reviewing a district court's decision whether to bind over a defendant for trial, the circuit court may not substitute its judgment for that of the district court and may reverse only if it appears on the record that the district court abused its discretion. People v. Selwa, 214 Mich.App. 451, 456, 543 N.W.2d 321 (1995). This Court generally applies the same standard on review as applied by the circuit court in reviewing a district court's decision to bind over a defendant. Id. A defendant must be bound over for trial on the prosecutor's information if the evidence presented at the preliminary examination establishes that a felony has been committed and there is probable cause to *745 believe that the defendant was the perpetrator. Id., pp. 456-457, 543 N.W.2d 321. The prosecutor is not required to prove each element of the offense beyond a reasonable doubt. Id, p. 457, 543 N.W.2d 321. However, there must be evidence regarding each element of the crime charged or evidence from which the elements may be inferred. Id. If the evidence conflicts or raises a reasonable doubt, the defendant should be bound over for resolution of the issue by the trier of fact. Id. Defendant was charged with twenty counts of the common-law offense of misconduct in office pursuant to M.C.L. § 750.505; M.S.A. § 28.773, which provides: Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court. To find a defendant guilty of the common-law offense of misconduct in office, the defendant must be found to be a "public officer," who, while acting "in the exercise of the duties of his office or while acting under color of his office," did "any act which is wrongful in itself—malfeasance," or did "any otherwise lawful act in a wrongful manner—misfeasance," or failed to "do any act which [was] required of him by the duties of his office—nonfeasance." Perkins & Boyce, Criminal Law (3d ed.), p. 540. It is not disputed that defendant was a deputy sheriff in Oakland County at the time of the alleged offenses. Accordingly, the question whether defendant is a public officer is a question of law that this Court reviews de novo. People v. Medlyn, 215 Mich.App. 338, 340, 544 N.W.2d 759 (1996). Misconduct in office applies only to public officers as distinguished from public employees. See Raduszewski v. Superior Court, 232 A.2d 95, 96 (Del., 1967). In Michigan, in order for a position of public employment to be considered a public office, five elements are indispensable: (1) it must be created by the constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the Legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity, and not be only temporary or occasional. Meiland v. Wayne Probate Judge, 359 Mich. 78, 87, 101 N.W.2d 336 (1960); Kent Co Register of Deeds v. Kent Co Pension Bd, 342 Mich. 548, 551-552, 70 N.W.2d 765 (1955). In addition, "`[t]he officer is distinguished from the employee in the greater importance, dignity, and independence of his position; in being required to take an official oath, and perhaps to give an official bond.'" Meiland, supra, p. 87, 101 N.W.2d 336 (citation omitted). In Schultz v. Oakland Co., 187 Mich.App. 96, 101, 466 N.W.2d 374 (1991), this Court held that the statute that created the position of deputy sheriff was not intended to create a "public office." This Court noted that an Oakland County deputy sheriff's employment is governed by a collectively bargained labor contract and that a deputy sheriff must answer to authorities other than the law itself. Id.; accord People v. Leve, 309 Mich. 557, 565, 16 N.W.2d 72 (1944) (director of bureau of investigation of Wayne County not a public officer, in part because he did not perform independently and without control of the county board of auditors). Accordingly, this Court held that an Oakland County deputy sheriff is a public employee and not a public official. Schultz, supra, p. 101, 466 N.W.2d 374. To the extent that Medlyn, supra, can be read to hold that a deputy sheriff *746 is a public official,[1] it conflicts with Schultz. When a panel is confronted with two conflicting opinions published after November 1, 1990, the panel is obligated to follow the first opinion issued. Auto-Owners Ins. Co. v. Harvey, 219 Mich.App. 466, 473, 556 N.W.2d 517 (1996); People v. Young, 212 Mich.App. 630, 639, 538 N.W.2d 456 (1995), remanded on other grounds 453 Mich. 976, 557 N.W.2d 315 (1996). Accordingly, under Administrative Order No. 1996-4, we are obligated to follow Schultz. The circuit court did not err in holding that defendant was not a public officer for purposes of the common-law offense of misconduct in office. Schultz does not contravene People v. Thomas, 438 Mich. 448, 475 N.W.2d 288 (1991). A decision of the Supreme Court is authoritative with regard to any point decided if the Court's opinion demonstrates application of the judicial mind to the precise question adjudged, regardless of whether it was necessary to decide the question in order to decide the case. People v. Brashier, 197 Mich.App. 672, 678, 496 N.W.2d 385 (1992), affirmed in part and reversed in part on other grounds sub nom People v. Lino, 447 Mich. 567, 527 N.W.2d 434 (1994). In Thomas, a footnote in the majority opinion stated: Although this Court has affirmed the quashing of the information regarding the charge of common-law obstruction of justice, the prosecutor is not precluded from moving to amend the information to add an additional count pursuant to M.C.L. § 750.505; M.S.A. § 28.773 (see, e.g., Perkins & Boyce, Criminal Law [3d ed.], p. 543, discussion on the common-law offense of misconduct in office). An information may be freely amended, and any amendment not prejudicial to the defendant may be allowed.... [Thomas, supra, p. 458, n. 8, 475 N.W.2d 288.] We believe that the majority opinion in Thomas does not demonstrate consideration of the precise question that is involved in this case. The precise question that the Supreme Court decided was that the prosecution was free to amend the information to add an additional count of a common-law crime. The majority also appeared to suggest that the prosecution could add the count of misconduct in office. However, the majority does not otherwise discuss the offense of misconduct in office, and did not determine that a police officer fits within the definition of a public official for purposes of that offense. It was Justice Boyle's concurring opinion in Thomas that specifically discussed the types of offenses that had been prosecuted as misconduct in office and concluded that the "defendant's alleged acts were of a type that could be prosecuted under the common-law offense of misconduct in office." Id., pp. 460-461, 475 N.W.2d 288. However, because only two justices signed this concurring opinion, it is not binding on the courts of this state. Cox v. Dearborn Heights, 210 Mich.App. 389, 396, 534 N.W.2d 135 (1995). Accordingly, we do not believe that the Supreme Court's opinion in Thomas is authoritative with regard to the issue in this case. The prosecution argues that other statutes and case law support its position that a sheriff's deputy is a public official. However, both M.C.L. § 51.79; M.S.A. § 5.870 and M.C.L. § 600.5805; M.S.A. § 27A.5805 concern tort actions, and not the common-law crime with which defendant is charged. Similarly, the fact that police officers may be subject to disciplinary sanctions, see M.C.L. § 28.6(3); M.S.A. § 4.436(3), or prosecution for statutory offenses, see People v. Bommarito, 33 Mich.App. 385, 190 N.W.2d 359 (1971), does not alter our conclusion. In addition, other cases cited by the prosecution did not determine whether the position of deputy sheriff is one of public office and are therefore distinguishable. See Bostatter v. Hinchman, 243 Mich. 589, 220 N.W. 775 (1928); Tzatzken v. Detroit, 226 Mich. 603, 198 N.W. 214 (1924); Blynn v. Pontiac, 185 Mich. 35, 151 N.W. 681 (1915); White v. Humbert, 206 Mich.App. 459, 522 N.W.2d 681 (1994), rev'd sub nom White v. Beasley, 453 Mich. 308, 552 N.W.2d 1 (1996); Parker v. West Bloomfield Twp., 60 Mich.App. 583, 231 N.W.2d 424 (1975). *747 The dissent's distinction between a "public officer" and a "public official" is inapposite. Whether a person is termed a "public officer" or a "public official" is not crucial. See People v. Freedland, 308 Mich. 449, 453, 14 N.W.2d 62 (1944). Indeed, Black's Law Dictionary (5th ed.), p. 978, lists "official" as a synonym for "officer." The question at issue here is whether defendant held a public office. See Raduszewski, supra, p. 96; Perkins & Boyce, supra, p. 540. That issue was decided by Schultz, supra, p. 101, 466 N.W.2d 374. The dissent also argues that defendant was a command officer who must be considered a public official. It is true that, as a general rule, "a person who exercises the powers and performs the duties of a public officer cannot shield himself from responsibility for criminal offenses committed by him in the official capacity he assumes by asserting that he was an officer de facto." Anno: De facto status of officer as affecting his criminal responsibility or liability to punishment for contempt, 64 ALR 534, § I(a). However, for a position to be considered one of public office, "`[i]t must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature....'" Meiland, supra, p. 87, 101 N.W.2d 336 (citation omitted); Kent Co Register of Deeds, supra, pp. 551-552, 70 N.W.2d 765; see also anno: De jure office as condition of a de facto officer, 99 ALR 294, § II, p. 295 (as a general rule, "the existence of a de jure office is a necessary condition of a de facto officer"). Here, the prosecution baldly asserted that defendant was the de facto police chief in Rochester Hills. However, the prosecution has not provided any argument whatsoever that a police chief is a public official. Accordingly, it has not sufficiently briefed this position. Dresden v. Detroit Macomb Hosp. Corp., 218 Mich.App. 292, 300, 553 N.W.2d 387 (1996). A party may not leave it to this Court to search for authority to sustain or reject its position. Magee v. Magee, 218 Mich.App. 158, 161, 553 N.W.2d 363 (1996). Because defendant was not a public official, the circuit court did not abuse its discretion in dismissing the charges of misconduct in office. In light of our disposition, the prosecution's remaining arguments concerning these charges are moot. II In Docket No. 190563, the prosecution argues that the circuit court abused its discretion in affirming the district court's dismissal of the charge of destruction of official records. Specifically, the prosecution argues, the circuit court erred in ruling that tally sheets and comp-time slips that defendant allegedly destroyed were not official records. We disagree. Defendant was charged pursuant to M.C.L. § 750.491; M.S.A. § 28.759, which provides in pertinent part: All official books, papers or records created by or received in any office or agency of the state of Michigan or its political subdivisions, are declared to be public property, belonging to the people of the state of Michigan. All books, papers or records shall be disposed of only as provided in ... [M.C.L. § 399.5(2); M.S.A. § 15.1805(2)]. Any person who shall wilfully carry away, mutilate or destroy any of such books, papers, records or any part of the same, ... shall be guilty of a misdemeanor, punishable by imprisonment in the state prison not more than 2 years or by a fine of not more than $1,000.00. The referenced statute, M.C.L. § 399.5(2); M.S.A. § 15.1805(2), provides in relevant part: A record that is required to be kept by a public officer in the discharge of duties imposed by law, that is required to be filed in a public office, or that is a memorial of a transaction of a public officer made in the discharge of a duty is the property of this state and shall not be disposed of, mutilated, or destroyed except as provided by law.... The directing authority of each state, county, multicounty, school, or municipal agency, department, board, commission, or institution of government shall present to the commission a certified *748 schedule governing disposal of, or a certified list or description of, the records that are useless and of no value to the governmental agency and to its duties to the public. The issue whether the comp-time slips and tally sheets at issue here are "official records" is an issue of first impression. The rules of statutory construction are well established. First and foremost, we must give effect to the Legislature's intent. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Id. Further, we are to give statutory language its ordinary and generally accepted meaning. Id., pp. 135-136, 545 N.W.2d 642. Here, we conclude that the comp-time slips and tally sheets at issue were not "official records." The official payroll and time records were kept on a computer. The comp-time slips and tally sheets were merely notes or internal memoranda that were kept until the data was entered into the computer. The substation commanders were not required to make or keep these notes. Under these circumstances, we decline to extend the definition of "official record" to encompass such notes. Accordingly, the circuit court did not abuse its discretion in affirming the district court's dismissal of the charge of destruction of official records. Penokie v. Michigan Technological Univ., 93 Mich.App. 650, 287 N.W.2d 304 (1979), is distinguishable. In that case, the plaintiffs sued to receive the name and salary or wage level of each of the defendant's employees. This Court affirmed the circuit court's finding that the information requested was public information. Id., p. 663, 287 N.W.2d 304. The panel in Penokie did not hold that any particular salary or attendance document pertaining to the defendant's employees was an official record, or even a public record; it merely held that the information was public. Here, where the records in question were not official payroll records, Penokie does not apply. Affirmed. GAGE, J., concurs. MICHAEL J. KELLY, Presiding Judge (dissenting in part). These consolidated appeals by the people involve two orders of dismissal involving charges of misconduct in public office, M.C.L. § 750.505; M.S.A. § 28.773, and one charge of removal, mutilation, or destruction of public records, M.C.L. § 750.491; M.S.A. § 28.759. Essential to the charges of misconduct in public office is the question whether the lower courts were bound by precedent from this Court to the effect that a deputy sheriff is not a public officer or public official within the meaning of the common-law offense of misconduct in office, in such a manner that while acting "in the exercise of the duties of his office or while acting under color of his office" he may be charged with having committed wrongful acts constituting malfeasance or misfeasance. Cf. Perkins & Boyce, Criminal Law (3d ed.), p. 540. I agree this is a question of law reviewed by this Court de novo. After reviewing the record, I conclude that the district and circuit courts erred as a matter of law in holding that defendant is not a public officer and therefore cannot be charged with misconduct in office. I find that defendant was appropriately charged in two separate indictments with twenty counts of misconduct in office pursuant to M.C.L. § 750.505; M.S.A. § 28.773: Any person who shall commit any indictable offense at the common law, for the punishment of which no provision is expressly made by any statute of this state, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $10,000.00, or both in the discretion of the court. In Docket No. 186263, defendant, a captain in the sheriff's office, was a public officer acting in the exercise of his duties when he allegedly misreported overtime hours worked by deputies under his command at the Rochester *749 Hills substation for the purpose of ingratiating himself with city officials. Likewise, in Docket No. 190563, he was acting under color of his office when he allegedly committed acts for which he was charged with fourteen misconduct claims stemming from the ordering of deputies under his command to drive Mr. L. Brooks Patterson, former Oakland County prosecutor, now county executive, and his wife, and Rudy Lozano, then a member of the Oakland County Road Commission, to various locations or events, activities that were arguably outside the scope of the deputies' duties as law officers. Both lower courts expressly relied on this Court's holding in Schultz v. Oakland Co., 187 Mich.App. 96, 466 N.W.2d 374 (1991). The parties seem to use the terms "public official" and "public officer" interchangeably. I believe they are not interchangeable. Schultz declared generically that an Oakland County deputy sheriff was not a "public official" so as to entitle him to withdraw his resignation before its acceptance was manifested in the public record. Id. at 101-102, 466 N.W.2d 374. The first case considered by the Schultz panel was Solomon v. Highland Park Civil Service Comm., 64 Mich.App. 433, 236 N.W.2d 94 (1975), in which this Court found that a city police officer was not a "public official" or "public officer" of the City of Highland Park. Id. at 437-438, 236 N.W.2d 94. Another case relied on by the Schultz panel was Burnett v. Moore, 111 Mich.App. 646, 314 N.W.2d 458 (1981), which held that a state police trooper was not a "state official" for the purpose of determining jurisdiction of the Court of Claims over a civil action in which the trooper was sued for assault and battery in the course of making an off-duty citizen's arrest. Id. at 648-649, 314 N.W.2d 458 The exact determination is that a state trooper is not a "state official" to be included within the exclusive jurisdiction of the Court of Claims pursuant to M.C.L. § 600.6419(1); M.S.A. § 27A.6419(1). I believe the above authorities are wellreasoned and I have no problem with their conclusions that troopers and deputy sheriffs, being akin to ordinary foot soldiers, are officers who are public employees but not public "officials." However, I do not believe that the above holdings extend to command officers, particularly defendant, who was described by Oakland County Sheriff John Nichols as the de facto police chief of Rochester Hills. I suggest an analogy drawn from the military differentiating commissioned officers from ordinary troops. The courts below, though urged to do so, made no differentiation between command officers and noncommand officers. The Schultz panel also considered the Supreme Court's holding in People v. Freedland, 308 Mich. 449, 14 N.W.2d 62 (1944). Freedland set forth guidelines for determining whether a deputy sheriff was a public officer for purposes of applying the criminal bribery statutes. Id. at 457-458, 14 N.W.2d 62. I do not believe for purposes of the application of Administrative Order No. 1990-4 and its successors that Schultz is controlling authority for the proposition that a deputy sheriff acting as the police chief of an incorporated city with command authority over all administrative and executive functioning employees of that police department is not a public official within the meaning of the five elements set forth by the Michigan Supreme Court in Freedland, supra at 457-458, 14 N.W.2d 62. Those elements, which transform a position of public employment into one of public office with its attendant burdens and responsibilities, are as follows: "(1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred, and the duties to be discharged, must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office, created or authorized by the legislature, and by it placed under the general control of a superior officer or body; (5) it must have some permanency *750 and continuity, and not be only temporary or occasional." [Citation omitted.] In People v. Thomas, 438 Mich. 448, 458, n. 8, 475 N.W.2d 288 (1991), then Chief Justice Cavanagh opined that a police officer who made a false statement about an arrest on a police report could be charged under M.C.L. § 750.505; M.S.A. § 28.773 with the common-law offense of misconduct in office. See Thomas, supra at 460, 475 N.W.2d 288 (Boyle, J., concurring). The parties disagree regarding whether that statement is authoritative or merely dicta. Although probably dicta, it should still be entitled to considerable deference. People v. Brashier, 197 Mich.App. 672, 678, 496 N.W.2d 385 (1992). However, the courts below gave it no deference. This Court has held, in the context of determining the applicability of the misdemeanor charge of failure to uphold the law, that a police officer may constitute a public official within the scope of M.C.L. § 752.11; M.S.A. § 28.746(101). See People v. Thomas, 182 Mich.App. 225, 452 N.W.2d 215 (1989). I believe officers, such as defendant, that hold command-level positions are subject to the common-law charges brought for the offense of misconduct in office pursuant to M.C.L. § 750.505; M.S.A. § 28.773. I concur with the circuit court's dismissal of the count charging removal or destruction of official records contrary to M.C.L. § 750.491; M.S.A. § 28.759 in Docket No. 190563 because there is no evidence that the comp-time requests and tally sheets used at the Rochester Hills substation were "official books, papers or records" as contemplated in the statute. I would reverse and remand for further proceedings requiring redetermination of the propriety of the charges in both cases on the basis of this Court's determination that defendant was not a common-law "public official" within the appropriate meaning of that term for purposes of charging the offense of misconduct in office. With regard to the majority's resolution of the second issue presented in this appeal, I concur. NOTES [1] This Court in Medlyn did not decide this issue. Rather, it stated that, "[t]here is no dispute that defendant was a public officer...." Medlyn, supra, p. 341, 544 N.W.2d 759.