The Michigan Constitution Podcast: Recent Episodes
Tony Snyder
Tony Snyder is a licensed attorney in the State of Michigan who offers a bi-monthly podcast on the Michigan Constitution. Here you will learn about each Article and its respective Sections, what they mean, and case law that has addressed how those provision are implemented in the day-to-day lives of citizens of Michigan.
Premise liability is the number one money-maker for slip & fall lawyers. Fortunately in Michigan, there is something called the “Open & Obvious” doctrine which is used to help get lawsuit-happy litigants out of our court system. In this one-off podcast, we will discuss what it means and how certain statutes, regulations and codes can play a factor in helping us to determine whether the Open & Obvious doctrine applies.
From time-to-time, I will produce what I will call “One-Off” podcasts, which don’t really address the provisions of the Michigan Constitution…but instead, are cases I think you (the listener) might find interesting to learn about. This podcast is one such case. We’re going to get into the idea of a “Public Duty Doctrine” which is when a police officer will not be held liable for the crimes committed against another person. The theory here is that the police can’t be on the hook for crimes committed by a 3rd party against the victim. The other area of law we will discuss is the governmental immunity doctrine, which gives governmental employees liability protections for actions they did (or did not) take, while performing their responsibilities.
We will continue our conversation about the Right to Bail. In particular, we’ll discuss:
- Pre-Trial Bail versus Post-Conviction Bail
- How bail impacts your ability to leave the police station
- What is the Goldilocks approach to setting bail?
- What happens if the Michigan Constitution changes and caught between the old constitutional provision and the new provision.
§ 16 Bail; fines; punishments; detention of witnesses.
Excessive bail shall not be required; excessive fines shall not be imposed; cruel or unusual punishment shall not be inflicted; nor shall witnesses be unreasonably detained.
There’s been a lot of chatter about the notion of Bail Reform. Realistically, bail doesn’t need to be reformed, certainly not in the State of Michigan. But my guess is most people championing for this “solution in search of a problem” don’t understand how bail actually works. We’ll discuss that in great deal. But here’s a primer:
So what is bail? What’s its purpose and why is “Bail Reform” getting all the press attention these days? To being, and simply put: The primary purpose of offering bail is BOTH to ensure that the defendant appears in court, while also ensuring the safety of the public.
At the defendant’s first appearance before the court, the judge must order that the defendant be held in custody or released on bail. You are “bailed out of jail” with the posting of a financial security, or, in laymen’s terms: posting bond. There are three types of bail for which a bond is required: cash bail (which just means posting 10 percent of that dollar amount), there’s secured bail, and finally, there’s unsecured bail (a/k/a personal recognizance). Complete denial of any bail is permitted only under certain circumstances, discussed in just a bit.
So how does this usually work, you wonder? If the defendant is going to be released while her trial is pending, the court must determine whether or not she will be released on her own recognizance or whether bail will be required. And, if bail is going to be required, the judge must establish an amount of bail the defendant must provide. Generally, the court will order release on a personal recognizance. Alternatively, the court could make specific findings in order to impose conditions on release and thusly order the release of the defendant on money bail. Or, if the court determines for reasons it states on the record that the defendant’s appearance or the protection of the public cannot be otherwise assured, complete denial of bail may be ordered by the Judge.
PERSONAL RECOGNIZANCE
If the defendant is not ordered to be held in custody, the court can order the release of the defendant on her own personal recognizance, with the understanding that the defendant will appear as required to each court hearing, that she will not leave the state without permission of the court, and she will not commit any crime while released.
CONDITIONAL RELEASE
If the court determines that a release on personal recognizance will not reasonably ensure the appearance of the defendant as required, or will not reasonably ensure the safety of the public, then the court may order a pretrial release of the defendant on the condition or combination of conditions that the court determines are appropriate. What are some of those conditions, you may wonder? Think things like: checking in with a probation agent, not using legal or illegal substances such as alcohol and marijuana, obtaining employment, attending treatment programs for dependency, those sort of requirements.
MONEY BAIL
If the court determines for reasons it states on the record that the defendant’s appearance or the protection of the public cannot be otherwise assured, money bail, with or without conditions, may be required. When setting money bail, the court must recognize that there is a constitutional mandate excessive bail shall not be required. Money bail is deemed “excessive” if it is in an amount greater than reasonably necessary to adequately assure that the accused will appear when her presence is required. The court in fixing the amount of the bail shall consider and make findings on the record as to each of the following:
(a) The seriousness of the offense charged.
(b) The protection of the public.
(c) The previous criminal record and the dangerousness of the person accused.
(d) The probability or improbability of the person accused appearing at future court proceedings.
Michigan Constitution/Article 1/Section 15: Double jeopardy; bailable offenses; commencement of trial if bail denied; bail hearing; effective date.
We’re finally bringing this topic in for closure. But before we do, we have a few more critical cases which we need to discuss.
Michigan Constitution/Article 1/Section 15: Double jeopardy; bailable offenses; commencement of trial if bail denied; bail hearing; effective date.
As continue to delve deeper into our right to finality from a criminal trial, we start to look at aspects where multiple jurisdictions bring criminal charges, despite the criminal action occurring (arguably) in only one place. We will also discuss the power a trial court judge has in a criminal case and why WHO YOU VOTE FOR MATTERS for trial court judges. Lastly, we’ll wrap up the podcast by discussing whether a County Prosecutor can bring state law criminal charges against a Defendant, only to have the State bring actions against that Defendant, as well!
Michigan Constitution/Article 1/Section 15: Double jeopardy; bailable offenses; commencement of trial if bail denied; bail hearing; effective date.
In this podcast, we will continue our conversation about Double Jeopardy and how you are protected by the Michigan Constitution. Cases we will discuss will involve:
- What happens when a Prosecutor intentionally throws the case in order to get a mistrial?
- When an Eye Doctor pleads guilty to a misdemeanor, if the Judge doesn’t revoke his medical license, is it Double Jeopardy for the State Licensing Board to take it away from him?
- What is Manifest Necessity? How does it apply against Double Jeopardy?
- Do multiple prison sentences by crimes committed in one transaction, violate Double Jeopardy?
- How does Duel Sovereignty and Double Jeopardy mesh? Or, do they conflict?
Michigan Constitution/Article 1/Section 15: Double jeopardy; bailable offenses; commencement of trial if bail denied; bail hearing; effective date.
I bet you’ve never given this area of constitutional protection much thought. We “get it”, perhaps conceptually. But do you really understand what it means to be put TWICE in jeopardy? When does it attach? How does it get reviewed? When are you truly a “Free Person” and needn’t fear another governmental trial?
Double Jeopardy embodies three separate protections:
- It protects against a second prosecution for the same offense after acquittal;
- It protects against a second prosecution for the same offense after conviction; and
- It protects against multiple punishments for the same offense.
But those three protections are not where most of the litigation against Double Jeopardy allegations occurs. There is, arguably, a 4th protection against Double Jeopardy and that’s the prohibition of a retrial of a defendant after a mistrial occurs. But we’ll get into that later. So why? Why is this protection against Double Jeopardy so important, so vital, that we have it both in the US Constitution and the Michigan Constitution? Well, there are several reasons.
First, to reduce the chance of convicting innocent people. The theory here maintains, if this rule didn’t exist, the State of Michigan would be able to re-try a defendant until they presented just the right case to convince a jury of the Defendant’s guilt. Think of it like if you could re-take a math test over and over, until you Aced the exam. You know where you got things wrong, so when you retake the test, you have the benefit of knowing where you wrong answers were so that you could get them right the next time. A criminal trial is the same concept. We don’t want a County Prosecutor to have the ability to try you for a crime, be found innocent, thus giving the Prosecutor a second bite at the apple to try you again and strengthen the case where it may have lacked originally.
The second reason is to avoid harassing the Defendant. Crime trials are expensive to defend, stressful on the Defendant and his/her family and no Prosecutor should be allowed to repeatedly try the Defendant for an alleged crime
Lastly, we as a society want to ensure the certainty and finality of criminal litigation. When we have a guilty or not-guilty verdict, whichever the outcome may be, the Defendant should have the luxury of moving forward with their life, whether it be as a free person (thanks to a Not Guilty verdict) or in a jail/prison, because they were found Guilty. Regardless the jury decision, the Defendant should know their criminal case is done and over with.
In our concluding episode about the right to a jury trial we will learn more about:-A law firm screwing up their own lawsuit and jury request-When to allege a jury is not of your own peers-Getting thrown out of political office and failing to request a jury to make that decision
As we continue our conversation about when you have the right to a jury trial, we’ll discuss the following aspects:-Withdrawing the request for a jury trial-Jury of your peers and what that means-Right to jury in administrative law matters-Unanimous jury verdict in criminal cases
This time we delve deeper into the right to a jury trial. Specifically, we’ll discuss…-juvenile proceedings in child neglect cases-interest in real property-ejectment vs. quiet title
The right to a jury trial is protected both in our United State Constitution, as well as our Michigan Constitution. But why is the right to a jury trial so important? Why is it imperative we protect that right, both at the federal level, as well as at the state level? There are few reasons and we’ll discuss them over the next four podcasts.
In this podcast we’re going to discuss the following matters:
-Judge influence of the jury-Right to jury at common law-Waiver of right to jury trial-Judge vs. Jury decision making
Now that we’ve established there are three pillars by which a judge must use to determine that an individual wishes to represent himself, the Courts go on to adopt an additional requirement, a Michigan Court Rule, to provide additional protection for BOTH the Defendant and the Judge. After all, what we can’t have is a Defendant represent himself at his trial, lose the court case, and their appeal making the allegation he had “ineffectiveness of counsel”. That would make a mockery of the entire judicial system. So, here we will conclude our conversation about when/why/how a Judge can determine that the Defendant legitimately wishes to act as his own attorney during his criminal trial.
You have a constitutional right, both under the Michigan Constitution and the U.S. Constitution, to hire an attorney; have an attorney appointed to you if you cannot afford one; but also the right to NOT have an attorney and to represent yourself. But what sort of parameters are there for when you want to represent yourself? What about representing yourself during pre-trial hearings? Can you do that? What about representing yourself in appellate courts/litigation, is that okay? We discuss that during Part One of our two-part conversation!
In this 30-minute podcast, we will discuss a search & seizure case which made its way through the Michigan Court of Appeals, to the Michigan Supreme Court and THEN over to the United States Supreme Court. Does the SCOTUS support and uphold the MI COA & Supreme Court? Or does Michigan get smacked down for violating both Article 1, Section 11 of the Michigan Constitution (by way of violating the 4th Amendment of the U.S. Constitution)??
Find out in this case review!
In our last podcast on Search & Seizure case law, regarding Article 1 Section 11 of the Michigan Constitution, we will discuss exigent circumstances by which a police office may AND MAY NOT conduct warrantless searches and seizures. We discuss small cases with a gun in an apartment, drugs flying at 30,000 feet across the country and how much time can elapse between a crime and a warrantless arrest.
Our next smattering of cases we’re going to discuss includes a United State Supreme Court case which took at look at the Michigan Constitution’s Article 1, Section 11 provision by reviewing the requirements of a homeowner to stay with the police (however, without an arrest warrant) during a search of his home for drugs.
Is it considered an ‘unreasonable seizure’ of a person to stay with the police, while they execute a search warrant of your home?
To what extent can a search warrant be issued to a police officer, based on an informant’s credibility to the police?
We’re going to address these two important cases, in greater detail, here in this podcast!
Now, we’ve already established that folks are protected from unreasonable searches & seizures. We discussed the concept of the exclusionary rule and we’ve addressed specific examples of when that may come into play, such as in a vehicle. But now I want to get into even more specifics.
Is it search & seizure if a private person provides something to the police which incriminates a Defendant?
Is it unreasonable to search a pill bottle found in a person’s coat pocket when arrested for driving on a suspended drivers license?
Can the police validly listen to two people’s conversation, when only one person knows they’re being recorded?
We’ll answers this questions, and more, in this podcast!
We’ve got a lot to talk about in this Article and Section of the Michigan Constitution. This provision mirrors the United States Constitution’s 4th Amendment. But the citizens of Michigan have added a 3rd sentence which is NOT part of the U.S. 4th Amendment. What is it? Why is it there? (And is it constitutional in terms of what the US Constitution allows for?) Find out this podcast!
This may be the shortest podcast we’re going to do on the Michigan Constitution. It’s because, honestly, it’s dreadfully boring. But there is one case worth noting: Blue Cross Blue Shield of Michigan versus the Michigan Governor. It sets up a four element test to determine whether the State of Michigan may impair a legally executed contract between two parties. Those four elements are:
- The law must affect a substantial impairment of the contractual relationship; A critical factor in determining the extent of the impairment is a history of past state regulation of the parties to the contract; If the impairment is minimal, there is no constitutional violation;* But if the impairment is severe, then there must be a showing of a significant and legitimate public purpose behind the regulation, and the means adopted by the legislature to achieve the public purpose must be reasonably related to the public purpose.
We will finish our conversation about Ex Post Facto laws and why substantive, versus procedural, rights are the main factor we review to determine if a law change is an ex post facto violation. We have a two prong test, and then (wait for it) a 7-factor test to roll through! Now, don’t skip out. We don’t review all 7, we merely discuss the factors which are most relevant to our cases at hand!
We are continuing our coverage of Article 1, Section 10 of the Michigan Constitution. Remember, there are technically three provisions which make up this one Section. Before, we covered Bills of Attainder. Now we’re going to address Ex Post Facto laws. These laws are prohibited because, by and large, the make actions criminal which were NOT criminal at the time they were committed. But the key to an actual ex post facto law entails 4 designations. We will talk about them and when laws are (but mostly aren’t) Ex Post Facto, thus unconstitutional.
This podcast is Part 1 of 2.
A bill of attainder occurs when the Michigan Legislature criminalizes something you did in the past, when it wasn't illegal to do it, and does not provide you with a judicial trial. This podcast will review situations where individuals believed the Legislature took an action, against them as a Defendant, and attempted to make their behavior a criminal in nature, without the benefit of a trial.
This time around we discuss Article 1, Section 9: “Neither slavery, nor involuntary servitude unless for the punishment of crime, shall ever be tolerated in this state.”
But that doesn’t mean that folks won’t make a distasteful argument that being required to do something (or not being allowed to do something) was involuntary servitude and should be prohibited under the Michigan Constitution. But none of these cases successfully won their argument. Find out WHY in this podcast!
So here’s the thing about Article 1, Section 8…there is no case history, at least not that I could find. And frankly, I find that to be a good thing! We don’t want the State of Michigan forcing citizens to house soldiers, within the person’s home, against their will. So instead, I’m going to give you a little history on this provision, within Michigan, but I’m also going to give you a little history on the United State Constitution’s Third Amendment. It’s the 3rd Amendment upon which our Article 1, Section 8 is based.
We review the Michigan Supreme Court case regarding the Executive Orders issued by Michigan Governor Gretchen Whitmer under the Emergency Powers of the Governor Act (EPGA)
The Michigan Constitution Article 1, Section 7 states:
“Military power subordinate to civil power: The military shall in all cases and at all times be in strict subordination to the civil power.”
What this means, practically, is that during times of peace, the Michigan National Guard is subordinate to the laws of the State of Michigan. We have only one case which has ever addressed this constitutional provision.
We will continue our discussion regarding Article 1, Section 6 in the Michigan Constitution. This provision of the MI Constitution reads as follows:
“Every person has a right to keep and bear arms for the defense of himself and the state“
For our last podcast covering this topic, we will review a hodge-podge of cases which have addressed this specific provision. This includes off-duty deputies and their firearms; a Personal Protection Order (PPO); a Conceal Weapon permit; and the hunting of game animals.
We will continue our discussion regarding Article 1, Section 6 in the Michigan Constitution. This provision of the MI Constitution reads as follows:
“Every person has a right to keep and bear arms for the defense of himself and the state“
This time, however, we will discuss the idea of being a Felony In Possession of a Firearm and whether that runs afoul of the the Michigan Constitution. We will also throw into the mix the notion of self-defense when a Felon is prohibited from possessing a firearm.
This time around we will discuss Article 1, Section 6 in the Michigan Constitution. That provision of the MI Constitution reads as follows:“Every person has a right to keep and bear arms for the defense of himself and the state“
This provision, similar to the 2nd Amendment of the United States Constitution is going to allow for the defense of oneself, their property and the State of Michigan, however, the Legislature’s police power will allow for some restrictions on gun ownership. But we’ll also discuss the restrictions on “arms” and what that means. Similarly, we discuss the right to bear arms while committing a felony (the Felony Firearm statute) and stun gun ownership, all in this podcast!
Defamation traditionally occurs when a newspaper writes a story which harms the reputation of the individual. How do we protect the media yet balance a reputation?
Freedom of speech protects obscenity laws, political contributions, commercial speech and political speech.
This time we discuss the Michigan Legislature suing the Michigan Governor over Executive Orders
We continue the conversation about Michigan’s Constitution; Article 1, Section 5; and the Freedom of Speech. This time, we focus in on how the Michigan Constitution addresses topics like Fighting Words, Freedom of Expression, Freedom of the Press, Trials Closed to the Media, Prior Restraint and Freedom of Speech for State of Michigan Employees.
Although the United States Constitution wraps all our free speech rights into the First Amendment, our Michigan Constitution does not. It breaks it up between Article 1, Section 3 as well as Section 5. In this podcast, I start with a general review of Article 1, Section 5 and the free speech concept, generally. This… Read More »Episode 12: Freedom of Speech (Part 1)
This topic, specifically Article 1, Section 4 is going to be broken up into 4 podcasts. There is a lot of information to share. This is Part 4 of 4.
This topic, specifically Article 1, Section 4 is going to be broken up into 4 podcasts. There is a lot of information to share. This is Part 3 of 4.
This topic, specifically Article 1, Section 4 is going to be broken up into 4 podcasts. There is a lot of information to share. This is Part 2 of 4.
This topic, specifically Article 1, Section 4 is going to be broken up into 4 podcasts. There is a lot of information to share. This is Part 1 of 4.
This time we discuss Article 1, Section 3 which discusses topics such as private versus public free speech, the right to assemble and the right to petition your government.
This week we will discuss Article 1, Section 2 and the equal protection rights afforded to citizens of and visitors to the State of Michigan
This time we discuss life, liberty and the pursuit of happiness. We discuss the authority of democracy and when the Michigan Legislature can wield political power, delegate political power or must defer political power to the federal government.
This time around we review the Michigan Constitution and its authority against the backdrop of the United State Constitution. While the federal government grants rights to the states, the people of those individual states may choose to limit the state's power even further.
The Michigan Constitution Podcast begins with a general introduction and a high-level history of the various constitutions of the State of Michigan.