Michigan Supreme Court Holds Pardon for Murder Sentence Valid

On June 3rd, 2014, the Michigan Supreme Court held in a criminal case that Former Governor Jennifer Granholm's initial commutation of a murder and armed robbery sentence on behalf of a prisonr must be valid despite the former Governor's subsequent attempted revocation of that same commutation.

In Makowski v Governor, Docket No. 146867, the Michigan Supreme Court addressed an appeal regarding the Governor's commutation and later revocation of a murder and armed robbery sentence.

From the opinion's syllabus:

Matthew Makowski filed an action in the Court of Claims against the Governor and the Secretary of State, seeking a declaratory judgment and injunctive relief to reverse then Governor Jennifer Granholm’s decision to revoke her commutation of plaintiff’s nonparolable life sentence that had been imposed for his first-degree murder and armed robbery convictions. The Governor had signed the commutation on December 22, 2010, after which it was signed by the Secretary of State and affixed with the Great Seal; however, four days later, the Governor decided to revoke the commutation order, and all copies of the commutation certificate were destroyed. Plaintiff alleged that the commutation was final when it was signed, sealed, and delivered to the Department of Corrections, and argued that the Governor lacked the authority to revoke a completed commutation. The court, Richard D. Ball, J., granted defendants’ motion for summary disposition, concluding that it lacked jurisdiction to review the governor’s exercise of discretion over commutation decisions. Plaintiff appealed. The Court of Appeals, O’CONNELL, P.J., and CAVANAGH and DONOFRIO, JJ., affirmed, holding that the Governor’s exercise of the commutation power presented a nonjusticiable political question. 299 Mich App 166 (2012). The Supreme Court granted plaintiff’s application for leave to appeal. 494 Mich 876 (2013). 

In an opinion by Justice CAVANAGH, joined by Chief Justice YOUNG and Justices MARKMAN, KELLY, AND VIVIANO, the Supreme Court held

The interpretation and exercise of the Governor’s powers under Const 1963, art 5, § 14 were justiciable questions properly before this Court. The Constitution did not give the Governor the power to revoke a validly granted commutation. A commutation is complete when it is signed by the Governor and the Secretary of State and affixed with the Great Seal. Because the Governor signed plaintiff’s commutation and delivered it to the Secretary of State, where it was signed and affixed with the Great Seal, plaintiff was granted an irrevocable commutation of his sentence. 

1. The case did not present a nonjusticiable political question. First, while the Constitution grants the Governor absolute discretion regarding whether to grant or deny a commutation, the Constitution also restricts the procedure of a commutation to that which is provided by law. Accordingly, the procedure of a commutation, including its finality, is not wholly committed by the text of the Constitution to the Governor. Second, resolution of the question presented did not demand that the Court move beyond areas of judicial expertise because the case rested on legal questions of constitutional interpretation and the vesting of rights, which are judicial in nature and did not involve determining whether the Governor had exercised sound judgment. Third, there were no prudential considerations that prevented the Court from resolving the issue, given that determining the extent of the Governor’s powers was a matter of constitutional law rather than political discretion. 

2. Reviewing the Governor’s exercise of the commutation power to determine its constitutionality did not violate separation-of-powers principles because determining the extent of the Governor’s powers was not an exercise of the whole power of commutation. 

3. Plaintiff’s sentence was commuted after the commutation had been signed by the Governor, signed by the Secretary of State, and affixed with the Great Seal because the Governor clearly intended to commute the sentence and the last act required of the executive had been completed. 

4. The Constitution did not grant the Governor the power to revoke a commutation. The fact that Const 1963, art 5, § 14 specifically provides that the Governor may grant a commutation implies that the Governor’s power is limited only to that ability, and to interpret this power as implicitly providing the power to revoke would not give the Constitution the sense most obvious to the common understanding because to revoke is the opposite of to grant. Further, the existence of the power to grant a conditional commutation implies that a commutation that is not expressly subject to conditions may not be revoked. Moreover, the Governor’s attempt to revoke plaintiff’s commutation impermissibly impinged on the powers of the parole board because once plaintiff’s sentence was commuted, he was under the parole board’s jurisdiction. Also, should the Governor have the power to revoke a commutation, it is not clear at what point that power would cease. The purpose sought to be accomplished by the pardon power did not counsel a different result.