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The Wayne County Prosecutor’s Office is asking the Michigan Supreme Court for a second time to decide if former state senator Virgil Smith Jr. is violating a plea agreement in his criminal case by running for Detroit City Council.

“This case presents two jurisprudentially significant issues ... whether provisions of a plea agreement requiring an elected official to resign from office and not hold office during the probationary period violate the separation of powers clause or are against public policy, and ... whether a circuit court may decline to vacate a plea on the prosecutor’s motion after the court voided provisions of a plea agreement,” according to legal brief filed by the prosecutor’s office with the Michigan Supreme Court. “This Court must address these issues and remedy the errors of the circuit court and the Court of Appeals.”

Earlier this week, the Michigan Court of Appeals ruled that Smith can run for office after it received the case back from the state high court two weeks ago.

In the 2-1 ruling Tuesday, Judges Deborah Servitto and Michael J. Kelly said, based on federal court precedents, that “that it is improper for a public official to voluntarily resign or voluntarily forebear public office as part of a negotiated criminal plea agreement.”

Smith finished second in the Aug. 8 City Council primary and is headed to the general election ballot against Roy McCalister Jr. He resigned from the state Senate in March 2016 after his guilty plea for shooting at his ex-wife’s Mercedes-Benz in May 2015.

Smith and his attorney negotiated a plea deal with the Wayne County Prosecutor’s Office but Third Circuit Court Judge Lawrence Talon struck down the part of the agreement that would have prevented Smith from being elected or appointed to public office during his five-year probation term. Smith also had to serve 10 months in the Wayne County Jail.

Talon said it was unconstitutional to enforce the election part of the plea deal, saying that the public has a right to choose elected officials.

In its pleadings, the prosecutor’s office argued that “only after imposing that term of probation and incarceration did the court question the parties’ agreement regarding the resignation and bar-to-office provisions.”

An initial three-judge Court of Appeals panel dismissed the prosecutor’s original appeal because Smith resigned from the state Senate while the appeal was pending, and the court believed Smith did not intend to run for office while on probation. The panel dismissed the case and declined to reconsider despite Smith’s city council run.

In its pleading to the state Supreme Court, the prosecutor’s office argued that both the appeals court and circuit court erred in ruling that the plea agreement provisions violated the separation of powers.

“An elected official’s voluntary decision not to hold office neither infringes on the Legislature’s authority to remove an elected official from office nor hinders a citizen’s right to choose among candidates who voluntarily seek public office,” according to the pleadings.

bwilliams@detroitnews.com

(313) 222-2027

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