MSC 143244 PEOPLE OF MI V LARRY JERARD MACK Opinion on Application - Affirm CoA 12/12/2012

PEOPLE v MACK
Docket No. 143244. Decided December 12, 2012.
Larry J. Mack was convicted in the Isabella Circuit Court of felonious assault, MCL
750.82; three counts of fourth-degree child abuse, MCL 750.136b(7); reckless driving, MCL
257.626; and failure to stop at the scene of an accident, MCL 257.620. The charges stemmed
from a car chase in which defendant pursued and, at one point, hit another car containing his
fiancée, her three children, and her parents. The Court of Appeals, M ETER , P.J., and S AAD and
W ILDER , JJ., affirmed in an unpublished opinion per curiam issued April 21, 2011 (Docket No.
295929), and defendant sought leave to appeal.
In a memorandum opinion signed by Chief Justice YOUNG and Justices M ARKMAN ,
M ARY BETH K ELLY, and ZAHRA , the Supreme Court, in lieu of granting leave to appeal and
without hearing oral argument, held:
MCL 768.27b, which in certain instances expands the admissibility of domestic-violence
other-acts evidence beyond the scope permitted by MRE 404(b)(1), does not infringe on the
Supreme Court’s authority to establish rules of practice and procedure under article 6, § 5 of the
1963 Michigan Constitution for the reasons articulated in People v Watkins, 491 Mich 450
(2012), which addressed a very similar issue and controls this case.
Affirmed.
Justice M ARILYN KELLY, joined by Justices C AVANAGH and HATHAWAY , dissenting,
would have granted defendant’s application for leave to appeal in order to reconsider Watkins,
which was wrongly decided. The majority’s extension of the reasoning used in Watkins to this
case rendered this case wrongly decided as well. Because MCL 768.27b is a procedural rule that
conflicts with MRE 404(b), the Legislature overstepped its constitutional authority under the
separation of powers when enacting it.
©2012 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Robert P. Young, Jr.
Justices:
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
John O. Juroszek

-- 1 of 6 --

FILED DECEMBER 12, 2012
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 143244
LARRY JERARD MACK,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
M EMORANDUM O PINION.
At issue is whether MCL 768.27b infringes on this Court’s authority to establish
rules of “practice and procedure” under the Michigan Constitution. The Constitution
provides that “[t]he supreme court shall by general rules establish, modify, amend and
simplify the practice and procedure in all courts of this state.” Const 1963, art 6, § 5.
MCL 768.27b addresses the admissibility of evidence in domestic-violence cases
that a defendant has committed other acts of domestic violence. It provides in part:
(1) Except as provided in subsection (4), in a criminal action in
which the defendant is accused of an offense involving domestic violence,
Michigan Supreme Court
Lansing, Michigan
Opinion Chief Justice:
Robert P. Young, Jr.
Justices:
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

-- 2 of 6 --

2
evidence of the defendant’s commission of other acts of domestic violence
is admissible for any purpose for which it is relevant, if it is not otherwise
excluded under Michigan rule of evidence 403.
* * *
(4) Evidence of an act occurring more than 10 years before the
charged offense is inadmissible under this section, unless the court
determines that admitting this evidence is in the interest of justice. [MCL
768.27b.]
The statute thus in certain instances expands the admissibility of domestic-violence other-
acts evidence beyond the scope permitted by MRE 404(b)(1), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act,
knowledge, identity, or absence of mistake or accident when the same is
material, whether such other crimes, wrongs, or acts are contemporaneous
with, or prior or subsequent to the conduct at issue in the case.
In People v Watkins, 491 Mich 450; 818 NW2d 296 (2012), this Court addressed
an issue very similar to that presented here. The statute at issue in Watkins, MCL
768.27a, addresses the admissibility of evidence that a defendant accused of certain
sexual offenses against a minor has committed other sexual offenses against a minor.
Though that statute also in certain circumstances expanded the admissibility of such
evidence beyond the scope permitted by MRE 404(b)(1), we determined that it did not
infringe on this Court’s authority under Const 1963, art 6, § 5. We hold that the
reasoning of Watkins fully controls in this case. For the reasons articulated in Watkins,
we conclude that MCL 768.27b does not infringe on this Court’s authority to establish
rules of “practice and procedure” under Const 1963, art 6, § 5. Likewise, the dissent’s

-- 3 of 6 --

3
arguments here—the same as those advanced by the dissent in Watkins—are
unpersuasive for the reasons articulated by the Court in Watkins.
In lieu of granting defendant’s application for leave to appeal, we affirm the
judgment of the Court of Appeals. 1
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
1 People v Mack, unpublished opinion per curiam of the Court of Appeals, issued
April 21, 2011 (Docket No. 295929).

-- 4 of 6 --

S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 143244
LARRY JERARD MACK,
Defendant-Appellant.
M ARILYN K ELLY, J. (dissenting).
As noted by the majority, at issue is whether MCL 768.27b infringes on this
Court’s constitutional authority to establish rules of practice and procedure. Relying on
its reasoning in People v Watkins,1 which considered a similar statute, MCL 768.27a, the
majority holds that MCL 768.27b does not infringe on this Court’s constitutional
authority. I disagree. For the reasons stated in my dissenting opinion in Watkins, that
case was wrongly decided. The majority’s extension of the reasoning used in Watkins to
this case renders this case wrongly decided as well.
Our Constitution provides this Court with the express authority to regulate rules of
practice and procedure.2 As I explained in Watkins, statutes like MCL 768.27b infringe
on that authority.3 The majority’s conclusion to the contrary, both in Watkins and in this
1 People v Watkins, 491 Mich 450; 818 NW2d 296 (2012).
2 Const 1963, art 6, § 5 provides the judiciary with the authority to “establish, modify,
amend and simplify the practice and procedure in all courts of this state.”
3 See Watkins, 491 Mich at 499-507 (M ARILYN K ELLY, J., dissenting).

-- 5 of 6 --

2
case, is imbued with the flawed reasoning of McDougall v Schanz.4 McDougall
effectively neutered this Court’s constitutional authority to regulate rules of practice and
procedure.5 Nonetheless, as in Watkins, if McDougall’s analysis were faithfully applied
here, the majority would recognize that MCL 768.27b is a quintessential procedural rule
involving the dispatch of judicial business. Because that statute conflicts with MRE
404(b) and regulates a matter of procedure, the Legislature overstepped its constitutional
authority when enacting it. Thus, the statute is unconstitutional and violates the
constitutional separation of powers. 6
For these reasons, I would grant defendant’s application for leave to appeal in
order to reconsider Watkins.
Marilyn Kelly
Michael F. Cavanagh
Diane M. Hathaway
4 McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999).
5 McDougall held that this Court’s authority over “practice and procedure” does not
include all matters relating to the admission of evidence. Id. at 29. Instead, it held that a
legislatively created rule of evidence does not violate article 6, § 5 of the 1963 Michigan
Constitution unless “no clear legislative policy reflecting considerations other than
judicial dispatch of litigation can be identified . . . .” Id. at 30 (quotation marks and
citations omitted).
6 Const 1963, art 3, § 2 provides that “[t]he 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.”

-- 6 of 6 --