Appeals court: Smith can run for Detroit council

Richard Burr
The Detroit News

Wayne County Prosecutor Kym Worthy said Wednesday she will appeal a court's decision to allow former state Sen. Virgil Smith to run for Detroit City Council over her objections.

In a statement, she said her office would appeal the decision by a state Court of Appeals panel and that its legal brief is due Aug. 28.

In a 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, who finished second in the Aug. 8 City Council primary and is headed to the general election ballot, resigned from the state Senate in March 2016 after shooting at his ex-wife’s Mercedes-Benz. He negotiated a plea deal with Prosecutor Kym Worthy’s office that included requirements that he resign and not hold public office, provisions struck down by a Wayne County trial judge as an unconstitutional restriction on the people’s right to choose their elected officials.

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.

The Michigan Supreme Court ordered the Court of Appeals panel to revisit the earlier decisions from April and June.

“While the prosecution argues that the voluntary nature of defendant’s decision to agree to the plea agreement rendered it constitutional,” Servitto and Kelly argued in the ruling released Tuesday, Worthy’s office is an extension of the executive branch, and the Michigan Constitution “specifically bars the executive branch from removing members of the legislative branch.”

But Judge Michael J. Riordan rejected the argument by saying the Wayne County “trial court abused its discretion.”

“…the majority draws upon a Pandora’s Box of imaginary issues which it hypothesizes could arise if we allow the defendant the freedom to choose to resolve the very real criminal charges he faces through plea negotiations,” Riordan wrote in his dissenting opinion. “In turn, the majority rejects the notion that a public office holder should be afforded the same freedom of choice enjoyed by every other person in Michigan who is the subject of a criminal indictment or charges.”

Absentee ballots for the Detroit general election are expected to start going out in late September.

If Smith is eventually ruled ineligible to run for Detroit’s City Council, it is unclear whether the third-place primary finisher, City Council President Pro-Tem George Cushingberry, would be allowed to run in the general election or whether top primary vote-getter Roy McCalister Jr. would run unopposed in Council District 2.