People v. Washington

¶1(dissenting). Because I would deny leave or would affirm the decision of the Court of Appeals, I dissent. This case springs from the relationship between state and federal law. The Court of Appeals correctly vacated the defendant’s state court sentence pursuant to Michigan’s Double Jeopardy Clause,1 MCL 333.7409; MSA 14.15(7409),2 and People v Cooper, 398 Mich 450; 247 NW2d 866 (1976). In *301Cooper, this Court rejected the dual sovereignty doctrine. Instead, Cooperheld that state prosecution is impermissible after federal prosecution if the state and federal statutes at issue are substantially similar. Cooperand MCL 333.7409; MSA 14.15(7409) teach that federal prosecution will satisfy the state’s need ■for prosecution when state and federal interests coincide.

¶2Although today’s opinion per curiam does not expressly overrule Cooper, the Court indirectly assaults Cooperfor the third time in as many years. The first attack occurred in People v Mezy, 453 Mich 269; 551 NW2d 389 (1996). The Mezylead opinion attempted to undermine the validity of Cooper, but four justices refused to attack the Cooperdoctrine. Then, in People v Childers, 459 Mich 216; 587 NW2d 17 (1998), the Court upheld the dual prosecution of a sex offender, stating that the social interests of Michigan would be ignored if state prosecution were prohibited. The Childersmajority erroneously opined that prosecution was permissible under Cooperbecause the state and federal statutes at issue were not substantially similar. I dissented, expressing my fear that Cooperwould soon become a hollow shell. It is clear that today’s decision again chips away at Cooper.

¶3By concluding that the defendant gave up his double jeopardy protections because of his own misconduct, the Court takes another step toward the adoption of dual sovereignty. The opinion makes this stride without citing any supporting legal authority. Nor does the Court account for contrary authority; the opinion completely fails to mention Cooper. Further,

*302the plain language of MCL 333.7409; MSA 14.15(7409) is ignored. Instead, the opinion loosely mentions the statute in conjunction with references to the Double Jeopardy Clause. If the Court intends to dispose of Cooper, it should do so forthrightly, rather than by subtly peppering exceptions throughout Michigan’s case law. This is especially true where the exceptions are not supportable. In my view, both Cooperand the Michigan Constitution support the decision of the Court of Appeals.