The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



 

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

PROSECUTING ATTORNEYS:

COUNTIES:

CONFLICT OF INTEREST:

Process for appointing special prosecuting attorney based on disqualifying conflict of interest or other inability to serve

If a county prosecuting attorney determines that he or she is disqualified by reason of a conflict of interest or is otherwise unable to perform his or her duties, the prosecuting attorney has a duty to file a petition with the Attorney General requesting the appointment of a special prosecuting attorney under MCL 49.160(1).

Regardless of whether a petition is filed under MCL 49.160(1), the Attorney General has authority under MCL 49.160(2), other statutes including MCL 14.28, MCL 14.30, and MCL 14.101, and the common law, to make an independent determination regarding whether a prosecuting attorney is disqualified or otherwise unable to serve in a matter. If the Attorney General determines that a prosecuting attorney is disqualified or is otherwise unable to serve, the Attorney General may elect to proceed in the matter or may appoint a special prosecuting attorney to perform the duties of the prosecuting attorney in the matter.

Opinion No. 7221

November 7, 2008

Honorable Robert Jones
State Representative
The Capitol
Lansing, MI

You have asked a series of related questions concerning appointment by the Attorney General of a special prosecuting attorney in a situation where the county's prosecuting attorney has a conflict of interest or is otherwise unable to attend to the duties of the office. Your questions relate specifically to MCL 49.160(1), which provides a procedure by which a county prosecuting attorney who determines himself or herself unable to attend to the duties of office shall petition the Attorney General to appoint a special prosecuting attorney, and to MCL 49.160(2), which provides that if the Attorney General determines that a prosecuting attorney is unable to serve, the Attorney General may proceed in the matter or appoint a special prosecuting attorney.1

Paraphrasing your first question, you ask whether the Attorney General's authority under MCL 49.160(2) to appoint a special prosecuting attorney is dependent upon a prosecuting attorney first filing a petition under MCL 49.160(1).2  In order to fully analyze your questions, it is necessary to examine the present text of MCL 49.160(1) and (2), the text of these provisions before their most recent amendment in 2003, other statutes pertaining to the Attorney General's role as chief law enforcement officer of the State, and historical traditions of practice.

The Michigan Supreme Court has made clear that, when construing a statute, the foremost obligation is to discern and effectuate the intent of the Legislature as expressed in the statutory language. Halloran v Bhan, 470 Mich 572, 576-578; 683 NW2d 129 (2004); Massey v Mandell, 462 Mich 375, 380-381; 614 NW2d 70 (2000). If the statute's language is clear and unambiguous, it must be assumed that the Legislature intended its plain meaning and the statute must be enforced as written.

These principles must be applied when examining the present text of MCL 49.160, adopted in 2002 PA 706, which involves appointment of a special prosecuting attorney by the Attorney General. MCL 49.160 states in its entirety:

(1) If the prosecuting attorney of a county determines himself or herself to be disqualified by reason of a conflict of interest or is otherwise unable to attend to the duties of the office, he or she shall file with the attorney general a petition stating the conflict or the reason he or she is unable to serve and requesting the appointment of a special prosecuting attorney to perform the duties of the prosecuting attorney in any matter in which the prosecuting attorney is disqualified or until the prosecuting attorney is able to serve.

(2) If the attorney general determines that a prosecuting attorney is disqualified or otherwise unable to serve, the attorney general may elect to proceed in the matter or may appoint a prosecuting attorney or assistant prosecuting attorney who consents to the appointment to act as a special prosecuting attorney to perform the duties of the prosecuting attorney in any matter in which the prosecuting attorney is disqualified or until the prosecuting attorney is able to serve.

(3) A special prosecuting attorney appointed under this section is vested with all of the powers of the prosecuting attorney for the purpose of the appointment and during the period of appointment, including the power to investigate and initiate charges. The cost of prosecution, other than personnel costs, in any matter handled by a special prosecuting attorney shall be borne by the office of the prosecuting attorney who has been determined to be disqualified or otherwise unable to serve.

(4) This section does not apply if an assistant prosecuting attorney has been or can be appointed by the prosecuting attorney pursuant to section 18 of chapter 16 of the code of criminal procedure, 1927 PA 175, MCL 776.18, to perform the necessary duties within the constraints of that section or if an assistant prosecuting attorney has been otherwise appointed by the prosecuting attorney pursuant to law and is not disqualified from acting in place of the prosecuting attorney.

MCL 49.160(1) provides that a prosecuting attorney who determines himself or herself to be disqualified by reason of a conflict of interest or who is otherwise unable to attend to the duties of the office3 "shall file" with the Attorney General a petition requesting the appointment of a special prosecuting attorney. This imposes a mandatory duty on the prosecuting attorney. "The phrases 'shall' and 'shall not' are unambiguous and denote a mandatory, rather than discretionary action." Roberts v Mecosta County Gen Hosp, 466 Mich 57, 65; 642 NW2d 663 (2002).

Significantly, there is nothing in the text of MCL 49.160(2) that cross-references any other provision of the section, unlike subsections (3) and (4), or that requires a petition to be filed before the Attorney General is empowered to determine that a prosecuting attorney is disqualified or is otherwise unable to serve. See Lansing Mayor v Public Service Comm, 470 Mich 154, 168; 680 NW2d 840 (2004). Nothing may be read into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Mecosta County General Hosp, 466 Mich at 63. Notwithstanding that these are subsections of one provision, the plain text of MCL 49.160(2) states that the Attorney General's power to appoint arises when the Attorney General "determines that a prosecuting attorney is disqualified or otherwise unable to serve"; the Attorney General's authority is not dependent upon the filing of a petition under MCL 49.160(1).

MCL 49.160(2) provides that the Attorney General may "appoint a prosecuting attorney or assistant prosecuting attorney who consents to the appointment to act as a special prosecuting attorney," but it further plainly states that the Attorney General "may elect to proceed in the matter" himself or herself. This latter reference to the broader authority possessed by the Attorney General calls into play well-recognized principles of statutory construction that support a comprehensive approach in analyzing the authority of the Attorney General with respect to appointment of a special prosecuting attorney.

For example, "statutes having a common purpose must be construed in pari materia to give the fullest effect to each provision. We must examine all the relevant provisions of the statutes with the goal of producing a consistent and harmonious result." Eyde Bros Dev Co v Eaton County Drain Comm'r, 427 Mich 271, 292-293; 398 NW2d 297 (1986) (citations omitted). As the Michigan Supreme Court explained in Apsey v Mem Hosp, 477 Mich 120, 129 n 4; 730 NW2d 695 (2007), quoting Detroit v Michigan Bell Tel Co, 374 Mich 543, 558; 132 NW2d 660 (1965):

It is the rule that in construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although enacted at different times, and containing no reference one to the other.

Words of a statute "must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute, construed in the light of history and common sense." Arrowhead Dev Co v Livingston County Rd Comm, 413 Mich 505, 516; 322 NW2d 702 (1982).

A review of earlier versions of MCL 49.160 dating back to at least 1846 reveals that they provided for the appointment of special prosecuting attorneys by the courts rather than by the Attorney General. For example, in 1890 the Supreme Court in Sayles v Genesee County Circuit Judge, 82 Mich 84, 89-90; 46 NW 29 (1890), considered the then current predecessor to MCL 49.160 (How. Stat. 559), which provided:

"The Supreme Court, and each of the circuit courts, may, whenever there shall be no prosecuting attorney for the county, or when the prosecuting attorney shall be absent from the court, or unable to attend to his duties, if either of said courts shall deem it necessary, by an order to be entered in the minutes of such court, appoint some other attorney at law to perform, for the time being, the duties required by law to be performed in either of said courts by the prosecuting attorney, who shall thereupon be vested with all the powers of such prosecuting attorney for that purpose."

In Sayles, the Supreme Court construed this statute as permitting a circuit court to appoint a special prosecuting attorney only for cases that were pending; it did not empower a circuit court to appoint a special prosecuting attorney to investigate a charge of crime or for other purposes. The text adopted in 1846 remained unchanged until 1978 and was again under review in People v Davis, 86 Mich App 514; 272 NW2d 707 (1978). Relying upon Sayles, the Court in Davis was constrained to conclude that, even when the prosecuting attorney alleged a conflict of interest, a circuit court lacked the authority to appoint a special prosecuting attorney to conduct a criminal investigation. The Court explained that, "[i]f circuit judges are to have this power, it is up to the Michigan Legislature to so provide." 86 Mich App at 522.

Later that year, MCL 49.160 was broken into four subsections by 1978 PA 535. Subsection (1) pertained to appointments by the Supreme Court, Court of Appeals, and circuit court and subsection (2) pertained to appointments by the circuit court to the probate court, district courts, and other courts in the county:

(1) If the prosecuting attorney of a county is disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office, the supreme court, the court of appeals or the circuit court for that county, upon a finding to that effect by the court, may appoint an attorney at law as a special prosecuting attorney to perform the duties of the prosecuting attorney in the respective court in any matter in which the prosecuting attorney is disqualified or until such time as the prosecuting attorney is able to serve.

(2) If the prosecuting attorney of a county is disqualified by reason of conflict of interest or is otherwise unable to attend to the duties of the office, the circuit court for that county, upon a finding to that effect by the court, may appoint an attorney at law as a special prosecuting attorney to perform the duties of the prosecuting attorney in the probate court, the district court, or any other court within the county in any matter in which the prosecuting attorney is disqualified or until such time as the prosecuting attorney is able to serve.

In In re Petition for Appointment of Special Prosecutor, 122 Mich App 632; 332 NW2d 550 (1983), the Court of Appeals interpreted these 1978 amendments but also emphasized the limitations that the constitutionally mandated separation of powers doctrine4 imposed in this area. The Court held that, like its predecessor, the statute did not confer on the circuit court the power to appoint a special prosecuting attorney except for matters pending "in" the courts. The Court then cautioned, however, that because decisions regarding the initiation of criminal charges are discretionary executive acts, deference to separation of powers principles requires that "judicial interference with the exercise of this discretion is severely limited." 122 Mich App at 636 (emphasis added). According to the Court, the 1978 version of MCL 49.160(1) and (2) "[did] not allow the circuit court to appoint a special prosecutor to perform the duties of the prosecuting attorney in any matters outside of the aforementioned courts, including the investigation of complaints of a crime or for the purpose of initiating criminal charges." 122 Mich App at 635-636.

Thus, prior to its most recent amendment in 2002 PA 706, MCL 49.160 limited judicial appointment of special prosecutors to matters pending "in court," raised issues about compliance with the separation of powers doctrine, and did not require the special prosecutor to have any prosecutorial experience. As quoted earlier, 2002 PA 706 significantly changed the appointment process. It expanded the circumstances under which a special prosecutor could be appointed to include the investigating and other stages of "any matter" and not simply those already pending "in court," and it vested the authority to appoint a special prosecutor in cases of conflicts of interest or where the prosecutor is unable to attend to his or her duties exclusively with the Attorney General.

By vesting this authority in the Attorney General alone, MCL 49.160 is consistent with Michigan's long-standing common law tradition and numerous other statutory provisions that recognize the Attorney General's unique constitutional role as the State's chief legal advisor and law enforcement officer. For example, MCL 14.28 broadly defines the Attorney General's duty to protect the State's interests in court and expressly grants the Attorney General the right to intervene in matters affecting Michigan's citizens:

The attorney general shall prosecute and defend all actions in the supreme court, in which the state shall be interested, or a party . . . and may, when in his own judgment the interests of the state require it, intervene in and appear for the people of this state in any other court or tribunal, in any cause or matter, civil or criminal, in which the people of this state may be a party or interested.

Similarly, MCL 14.101 reinforces and amplifies the Attorney General's intervention power in any action in any court:

The attorney general of the state is hereby authorized and empowered to intervene in any action heretofore or hereafter commenced in any court of the state whenever such intervention is necessary in order to protect any right or interest of the state, or of the people of the state. Such right of intervention shall exist at any stage of the proceeding, and the attorney general shall have the same right to prosecute an appeal, or to apply for a re-hearing or to take any other action or step whatsoever that is had or possessed by any of the parties to such litigation.

And MCL 14.30 directly addresses the Attorney General's general supervisory and advisory role with respect to Michigan's county prosecutors: "The attorney general shall supervise the work of, consult and advise the prosecuting attorneys, in all matters pertaining to the duties of their offices."

Michigan's common law tradition with respect to the Attorney General's authority is consistent with this statutory history. For example, the Michigan Supreme Court has long recognized that "the office of attorney general is ancient in its origin and history, and it is generally held by the States of the Union that the attorney general has a wide range of powers at common law. These are in addition to his statutory powers." Mundy v McDonald, 216 Mich 444, 450-451; 185 NW 877 (1921). The Attorney General's statutory powers have been broadly construed, as they involve matters of public policy and discretionary action by the State's "chief law officer." In re Certified Question (Wayne County v Philip Morris, Inc), 465 Mich 537, 543-544; 638 NW2d 409 (2002); People v O'Hara, 278 Mich 281, 293-294; 270 NW 298 (1936).

This common law tradition extends to the courts' recognition of the Attorney General's role as the State's chief law enforcement officer and his related duties with respect to prosecuting attorneys. In People v Bussey, 80 Mich 501, 502; 45 NW 594 (1890), the Court examined a court rule and several statutes, including the predecessor to MCL 14.30 that required the Attorney General to "consult and advise" the prosecuting attorneys but did not yet include express reference to "supervis[ing]." The Court held that "it was always the practice, as it was the duty, of the Attorney General, to conduct and control all criminal cases in this Court," and emphasized that, even after adoption of another statute conferring authority on the prosecuting attorney to appear in criminal cases, "the management of criminal cases is still under his [the Attorney General's] control." 80 Mich at 503. Indeed, because criminal prosecutions are brought in the name of the People of the State of Michigan, the State is a party in all criminal cases and the Attorney General, as "the official representative of the plaintiff in all criminal cases," is not obligated to separately intervene in order to appear. People v Monaco, 475 Mich 1222; 716 NW2d 587 (2006); People v Foster, 377 Mich 233, 234-235; 140 NW2d 513 (1966). The courts have held that the Attorney General possesses all the powers of a prosecuting attorney in criminal matters unless specifically withdrawn by the Legislature, Fieger v Cox, 274 Mich App 449, 453 n 2; 734 NW2d 602 (2007), may bring an original criminal action, People v Karalla, 35 Mich App 541, 544; 192 NW2d 676 (1971), and, in the exercise of his supervisory authority, is ultimately the "exclusive representative" of the people in criminal cases in Michigan's courts if there is a disagreement with the local prosecutor over a case. Foster, 377 Mich at 234-235 n 1; MCL 14.30. Similarly, "[t]he authority of the Attorney General to appoint special assistant attorneys general is well established." Attorney General v Michigan Public Service Comm, 243 Mich App 487, 490; 625 NW2d 16 (2000).

Returning to your questions, the text of MCL 49.160(2) does not require that a petition be filed before the Attorney General is empowered to determine that a prosecuting attorney is disqualified and to appoint a special prosecuting attorney, and no words may be added to the statute to reach such a conclusion where the Legislature has not elected to include them. Moreover, to read MCL 49.160(2) as being limited by MCL 49.160(1), under which a prosecuting attorney may initiate a disqualification, would be contrary to the other governing principles of statutory interpretation and inconsistent with the long-established history and practice with which the Legislature is deemed to be familiar. In addition, it would fail to read MCL 49.160 in harmony with the common law and other statutes, including MCL 14.30, that expressly recognize the Attorney General's authority to supervise prosecuting attorneys and to unilaterally address issues of concern to the State and the people of this State. Under the in pari materia doctrine, all these matters must be considered together as constituting one law in order to distill the Legislature's intent. Doing so discloses a clear meaning. While statutes had initially granted courts limited powers to appoint special prosecuting attorneys in pending cases only, present procedures allow the Attorney General to exercise control in a broad array of circumstances, including where a prosecutor submits a petition under MCL 49.160(1) or where the Attorney General determines that the State or the people have an interest. MCL 14.28, MCL 14.30, and MCL 14.101. The Attorney General may either proceed in the matter himself or herself, or may appoint a special prosecuting attorney to perform the duties of the prosecuting attorney in the matter.

It is my opinion, therefore, that if a county prosecuting attorney determines that he or she is disqualified for reasons of a conflict of interest or is otherwise unable to perform his or her duties, the prosecuting attorney has a duty to file a petition with the Attorney General requesting the appointment of a special prosecuting attorney under MCL 49.160(1).

It is my further opinion that, regardless of whether a petition is filed under MCL 49.160(1), the Attorney General has authority under MCL 49.160(2), under other statutes including MCL 14.28, MCL 14.30, and MCL 14.101, and under the common law, to make an independent determination regarding whether a prosecuting attorney is disqualified or otherwise unable to serve in a matter. If the Attorney General determines that a prosecuting attorney is disqualified or is otherwise unable to serve, the Attorney General may elect to proceed in the matter or may appoint a special prosecuting attorney to perform the duties of the prosecuting attorney in the matter.
 

MIKE COX
Attorney General

1 Your question does not ask about the circumstance where a vacancy arises in the elective office of prosecuting attorney.  Under Const 1963, art 6, 14, the "judges of the circuit court may fill a vacancy in an elective office of . . . prosecuting attorney within their respective jurisdictions."

2 Your second question asks whether a court may order a prosecuting attorney to file a petition under MCL 49.160(1).  Attorneys have ethical obligations under the Michigan Rules of Professional Conduct, and courts have broad inherent power to control the conduct of attorneys appearing before them.  But, as explained in In re Petition for Appointment of Special Prosecutor, 122 Mich App 632; 332 NW2d 550 (1983), there are constitutional principles involving the separation of powers that must be considered when a prosecuting attorney's discretionary authority is involved.  The full exploration of these considerations is beyond the scope of this opinion.  The answers to your third and fourth questions are contained in the answer to your first question.

3 It is worth emphasizing that subsection (4) of MCL 49.160 makes clear that the section does not apply if an assistant prosecuting attorney has been otherwise appointed pursuant to law and is not disqualified from acting in place of the prosecuting attorney.  See MCL 49.32, which provides: 

 The prosecuting attorney shall designate 1 assistant prosecuting attorney as chief assistant prosecuting attorney, who shall in case of the absence, disability or sickness of the prosecuting attorney discharge all the functions and perform all the duties of the office of prosecuting attorney, and in case of the absence, disability or sickness of both the prosecuting attorney and the chief assistant prosecuting attorney, next ranking assistant shall discharge all the functions and perform all the duties of the office of prosecuting attorney.
 

4  Const 1963, art 3, 2 states:  "The 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."