Top court to hear Virgil Smith case, but not right away

Jonathan Oosting
Detroit News Lansing Bureau

Former state Sen. Virgil Smith could already be a member of the Detroit City Council when the Michigan Supreme Court decides whether a criminal plea deal should have kept him from holding public office.

The state’s highest court said Monday it will hear oral arguments in Smith’s case but denied Wayne County Prosecutor Kym Worthy’s request for immediate consideration.

Worthy is seeking to void a plea deal Smith agreed to after he was arrested in May 2015 for firing an assault rifle at his ex-wife’s Mercedes-Benz.

The deal required Smith to resign from the state Senate, which he did, and precluded him from holding office during his five-year probationary period, a provision lower courts struck down as an unconstitutional restriction on the people’s right to choose their elected officials.

Smith is now running for city council and finished second in the August primary, beating out council president pro-tem George Cushingberry to advance to the November general election.

“No party is requesting an order to remove the defendant from the ballot, nor could we enter such an order since the relevant election official is not a party to this case,” Justices Bridget Mary McCormack, David Viviano, Richard Bernstein and Joan Larsen wrote in the majority opinion. “Therefore, we are not persuaded that this case requires expedited consideration.”

Instead of granting immediate consideration, the court ordered attorneys to file supplemental briefs within 42 days, or by late October. Oral arguments would be scheduled for a later date.

Chief Justice Stephen Markman disagreed with the decision to deny Worthy’s request for immediate consideration and was joined by two of his colleagues in a partial dissent.

“I view this as a highly time-sensitive matter,” Markman wrote.

Delaying a ruling in the case could be problematic for Worthy, Smith and the people of Detroit, he said, adding that “had the case been resolved by this Court today, they would have been fully apprised as to whether one of the candidates on their ballot might be unable to serve in office and would have to be replaced after election (by an appointment of the Council) as the result of either a plea bargain or a successful criminal prosecution, thereby depriving the people of their right to directly choose their own Council member.”

Last month, Worthy asked the state Supreme Court, for the second time in as many months, to take to decide if Smith 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 last month by the prosecutor’s office with the court.

Worthy’s office went back to the state’s highest court after the Michigan Court of Appeals ruled that Smith could run for office after it received the case back from the state high court last month.


Orlandar Brand-Williams contributed.