16.4Initiation of Automatic Waiver Proceedings
A.Prosecutorial Charging Discretion
Whether to proceed in the Family Division or a court of general criminal jurisdiction with respect to a specified juvenile violation is a matter of prosecutorial discretion. MCL 764.1f(1) provides:
“If the prosecuting attorney has reason to believe that a juvenile 14 years of age or older but less than 18 years of age has committed a specified juvenile violation, the prosecuting attorney may authorize the filing of a complaint and warrant on the charge with a magistrate concerning the juvenile.”
A uniform prosecutorial policy to authorize complaints and warrants in all cases involving juveniles over the age of 15 who were charged with certain specified juvenile violations was consistent with MCL 764.1f and did not violate the defendants’ right to due process or represent an abuse of prosecutorial discretion. People v Rode, 196 Mich App 58, 65-66 (1992) (noting that “[a] prosecutor has broad discretion in determining which charges to bring and when to bring them” and that “review of a prosecutor’s exercise of charging discretion is generally precluded by the constitutional separation of powers absent unconstitutional, illegal, or ultra vires acts or an abuse of power”), rev’d on other grounds by People v Hana, 447 Mich 325 (1994).9, 10
A prosecutor was not prohibited from dismissing a juvenile proceeding and immediately thereafter filing a complaint in the circuit court under the automatic waiver provisions. People v Dilling, 222 Mich App 44, 47-50 (1997). Because the juvenile was neither detained nor prejudiced by any delay, there was no denial of due process, and there was no evidence that the prosecutor acted in bad faith; moreover, “[the d]efendant had no absolute right to be treated as a juvenile, MCL 764.1f.” Dilling, 222 Mich App at 48-49. “The dismissal of the [juvenile] petition did not taint the subsequent circuit court proceeding, which was a proceeding that could have been initiated [under MCL 600.606] in the first instance.” Dilling, 222 Mich App at 50.
If a petition has been filed in the Family Division alleging that a juvenile between 14 and 18 years of age has committed an offense that would constitute a specified juvenile violation, the prosecutor may request a “special adjournment” of the preliminary hearing in order to decide whether to continue in the Family Division or to instead authorize the filing of a criminal complaint and warrant under MCL 764.1f. MCR 3.935(A)(3)(a) provides, in part:
“On a request of a prosecuting attorney who has approved the submission of a petition with the [Family Division], conditioned on the opportunity to withdraw it within 5 days if the prosecuting attorney authorizes the filing of a complaint and warrant with a magistrate, the [Family Division] shall . . .[:]
“(i) . . . adjourn the preliminary hearing for up to 5 days to give the prosecuting attorney the opportunity to determine whether to authorize the filing of a criminal complaint and warrant charging the juvenile with an offense as though an adult pursuant to MCL 764.1f, instead of unconditionally approving the filing of a petition with the [Family Division].”
During the special adjournment, the juvenile must be released or detained in accordance with MCR 3.935(D) and MCR 3.935(E).12 MCR 3.935(A)(3)(a)(iii).
urt, an arraignment must be held within 24 hours. If the prosecuting attorney files a complaint and warrant in district coMCR 6.907(A)(2).13 Following the arraignment, the district court must set a date for a probable cause conference and a date for the preliminary examination. MCL 766.4(1).
9.For more information on the precedential value of an opinion with negative subsequent history, see our note.
10. When Rode, 196 Mich App 58, was decided, MCL 764.1f authorized automatic waiver for juveniles “15 years of age or older but less than 17 years of age.” Effective January 1, 1997, 1996 PA 255 amended MCL 764.1f to lower to 14 the minimum age for automatic waiver. Effective October 1, 2021, 2019 PA 106 amended MCL 764.1f to authorize automatic waiver for juveniles “14 years or older but less than 18 years of age[.]”
11. See Section 6.3(B) for discussion of special adjournments in the Family Division.
12. See Section 6.3(H) and Section 6.3(I) for discussion of detention and conditional release under MCR 3.935(D) and MCR 3.935(E).
13. See Section 16.6 for discussion of the arraignment in automatic waiver proceedings.
. At arraignment for a felony charge, the court must schedule “a probable cause conference to be held not less than 7 days or more than 14 days after the date of the arraignment” and a preliminary examination to be held “not less than 5 days or more than 7 days after the date of the probable cause conference.” MCL 766.4(1); see also 2014 PA 123, enacting section 1.
MCR 6.907(C)(2) requires the judge in an automatic waiver proceeding to “set a date for the juvenile’s preliminary examination within . . . 14 days[ after arraignment], less time given and used by the prosecuting attorney under special adjournment pursuant to MCR 3.935(A)(3), up to three days’ credit”; however, MCR 6.907, and the other court rules governing automatic waiver proceedings, have not been amended to reflect the requirements of MCL 766.4. See Section 16.8 for additional discussion of MCL 766.4.