Petition for Writ of Certiorari — Joel Howard James, Petitioner v. Michigan

Supreme Court briefSep 30, 2019

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IN THE

Supreme Court of the United States

_____________________

JOEL HOWARD JAMES,

Petitioner,

PEOPLE OF THE STATE OF MICHIGAN,

Respondent.

_____________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

MICHIGAN COURT OF APPEALS

________________________________________________

PETITION FOR WRIT OF CERTIORARI

________________________________________________

Matthew J. Wojda

Counsel for Petitioner

White, Wojda and Curtis

313 N. Second Avenue

Alpena, MI 49707

989-354-4104

mjwojda@dwwhitelaw.com

Dated: September 30, 2019

QUESTIONS PRESENTED FOR REVIEW

1. Based on a “class of one” analysis, does the

Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution

bar application of the nonresident tolling

provision of MCL 767.24(10) where, although a

person did not usually and publicly reside

within the State of Michigan during the

limitations period, no crime was reported nor

any investigation initiated until years after the

statute of limitations would otherwise have

run?

2. Does the nonresident tolling provision of MCL

767.24(10) violate the Privileges and

Immunities Clause in Section 1 of the

Fourteenth Amendment to the United States

Constitution insofar as it creates a distinction

between

residents

Michigan

and

nonresidents?

LIST OF PRIOR PROCEEDINGS

Alpena County District Court

Case No. 15-0337 FY

People of the State of Michigan

v Joel Howard James

08/12/15

Opinion and Order Denying Motion to

Dismiss Re: Statute of Limitations

Alpena County Circuit Court

Case No. 15-006730-FH

People of the State of Michigan

v Joel Howard James

09/08/15

Opinion and Order Affirming District

Court’s Denial of Motion to Dismiss

re: Statute of Limitations

01/18/18

Opinion and Order Dismissing Case/ on

Basis that Tolling Provision of Statute

of Limitations Violates Equal

Protection Clause

Michigan Court of Appeals, Case No. 342504

People of the State of Michigan, Plaintiff/Appellee,

v Joel Howard James, Defendant/Appellant.

10/11/2018 Opinion - Authored - Published

Dismissal Reversed and Remanded for

Further Proceedings

Michigan Supreme Court Case No. 158719

People of the State of Michigan, Plaintiff/Appellee,

v Joel Howard James, Defendant/Appellant.

07/02/19

Order Denying Application for Leave

to Appeal

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR

REVIEW……………………………………………i

LIST OF PRIOR

PROCEEDINGS……....…………………………ii

TABLE OF

CONTENTS…………………….………………..iii

TABLE OF

AUTHORITIES…………………………………..vi

OPINIONS AND ORDERS BELOW

AND BASIS FOR JURISDICTION……………1

PERTINENT PROVISIONS OF LAW………..1

STATEMENT OF THE

CASE……………………………………………….2

REASONS FOR GRANTING THE

PETITION………………………………………..10

I. The steps in a criminal investigation

do not presume criminal activity…..11

II. As applied to James as a class of one,

MCL 767.24(10) constitutes a violation

of his rights to equal protection of

the laws…….…………………………..14

iii

III.James is similarly situated to other

individuals neither accused of nor

under investigation for crimes until

after the statute of limitations had

run, regardless of state of

residence………………………….…..16

IV. Courts have previously held that

speculative or hypothetical

Interests are not constitutionally

actionable……………………………..20

V. There is no rational basis for the

difference in treatment……………...21

VI. The difference in treatment as between

James and similarly situated Michigan

residents violates his Fourteenth

Amendment right to the privileges and

immunities of citizenship…………….34

CONCLUSION…………………………………..35

APPENDIX

APPENDIX A – Michigan

Court of Appeals Opinion ………………....1A

APPENDIX B – Michigan

Supreme Court Order….………………....17A

APPENDIX C – 26th Circuit Court

Opinion and Order Dated

September 8, 2015….……………………...18A

APPENDIX D – 26th Circuit Court

Opinion and Order Dated

January 18, 2018….……………………….24A

APPENDIX E – Michigan

Compiled Laws 767.24 .…………………..30A

APPENDIX F – 14th Amendment

United States Constitution……………...34A

APPENDIX G – Michigan

Model Criminal Jury Instructions….….36A

TABLE OF AUTHORITIES

Cases

Allegheny Pittsburgh Coal Co. v. Comm'n of Webster

Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688

(1989)………………………………………………..…...14

Board of Regents v Roth, 408 U.S. 564, 92 S.Ct. 2701,

33 L.Ed.2d 548 (1972)………………………………….20

Burns v Lafler, 328 F.Supp.2d 711 (E.D. Mich

2004)………………………………………...............19, 31

Danuel v State, 262 Ga 349 (1992)………..…..…22, 23

Engquist v Or. Dep’t of Agric., 553 U.S. 591, 602; 128

S.Ct 2146; 170 L.Ed.2d 975 (2008)………………..….21

Heitman v State, 627 N.E.2d 1307 (1994)……..…….23

JDC Mgmt, LLC v Reich, 644 F.Supp.2d 905, 927

(W.D. Mich 2009)……………………………………….15

Kuznar v Raksha Corp., 481 Mich. 169; 750 N.W.2d

121 (2008)…………………………………………….….13

Lima Twp v Bateson, 302 Mich.App 483, 503; 838

N.W.2d 898 (2013)………………………………………15

McDonald v Village of Winnetka, 371 F.3d 992, 1002

(7th Cir. 2004)……………………………………...……15

New Mexico v Cawley, 110 NM 705; 1990 N.M.S.C.

088; 799 P.2d 574 (1990)……………………….....27, 28

People v Allen, 192 Mich. App. 592, 602; 481 N.W.2d

800 (1992)………………………………………….….…12

People v Blackmer, 309 Mich.App 199; 870 N.W.2d

579 (2015)………………………………………………..29

People v Budnick, 197 Mich.App 21; 494 N.W.2d 778

(1992)…………………………………………………..7, 12

People v Crear, 242 Mich.App 158; 618 N.W.2d 91

(2000)…………………………………………….....6, 7, 28

People v Kasben, 500 Mich. 948, 890 N.W.2d 354

(2018, for publication)……………………………….....31

People v Laughlin, 293 Ill.App.3d 194, 687 N.E.2d

1162, 227 Ill.Dec. 680 (Ill App.Ct. 1998)…….….32, 33

People v McCausey; 65 Mich. 72, 73; 31 N.W. 770

(1887)……………………………………………………..12

People v McIntire, 232 Mich.App 71, 105; 591 N.W.2d

231 (1998), reversed on other grounds 461 Mich 147

(1999)…………………………………………...…..6, 7, 29

People v Miller, 482 Mich. 540, 759 N.W.2d 850

(2008)…………………………………………………....6, 7

People v Olszewski, 2004 Mich.App LEXIS 3224

(unpublished 2004)………………………….………….30

vii

People v Rapp (Docket Number 333613, unpublished

November 2017)……………………………………...….29

Richardson v Township of Brady, 218 F.3d 508 (6th

Circ. 2000)……………………………………………….20

RRI Realty Corp. v. Inc. Vill. of Southhampton, 870

F.2d 911, 918 (2d Cir. 1989)……………………...……20

Saenz v Roe, 526 U.S. 489, 503; 119 S.Ct 1518; 143

L.Ed.2d 689 (1999)……………………………….........34

Sector Enterprises, Inc. v. DiPalermo, 779 F.Supp.

236, 246–47 (N.D.N.Y.1991) ……………………...…..16

Scherling v Superior Court, 22 Cal.3d 493; 585 P.2d

219 (1978)…………………………………...12, 26, 32, 33

Sioux City Bridge Co. v. Dakota Cty., 260 U.S. 441, 43

S.Ct. 190, 67 L.Ed. 340 (1923)…………………………15

Slaughter-House Cases, 83 U.S. 36 (1873).…….34, 35

Smith v. Atlanta Indep. Sch. Dist., 633 F. Supp. 2d

1364, 2009 U.S. Dist. LEXIS 37767, 2009 WL

1259209, (N.D. Ga. May 4, 2009)…………………..…15

State v March, 395 SW3d 738, 788 (Tenn Crim App,

2011)………………...………………………………..11, 18

State v Sher, 149 Wis.2d 1; 437 N.W.2d 878 (1989)

………………………………………………...11,19, 26, 27

viii

Toussie v. U.S., 397 U.S. 112 (1970)………………….12

United States v Brown, 959 F.2d 63 (6th Cir. 1992)..32

United States v MacDonald, 456 U.S. 1, 71 L.Ed.2d

696, 102 S.Ct. 1497 (1982)…………….………………32

United States v Moore, 543 F.3d 891, 899 (7th Cir.

2008)………………………………………………………15

United States v Norris, 780 F.2d 1207 (5th Cir.

1986)………………………………………………………32

United States v Udell, 109 F.Supp 96, 97-98 (D. Del

1952)………………………………………………………33

Village of Willowbrook v. Olech, 528 U.S. 562, 564,

120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)….…….14, 21

Michigan Attorney General Opinions

Op Atty Gen, 1928-1930 p582………………….………6

Michigan Court Rules

MCR 2.116(C)(7)……………………………….………..13

Michigan Statutes

MCL 767.24……….….………...1, 2, 4, 8, 29, 30, 31, 36

MCL 767.24(3)………..………………….…………….3, 8

MCL 767.24(10)……………………….4, 6, 8, 11, 14, 17

MCL 767.24(8)…………………………….…………….18

United States Constitution

United States Constitution, Fifth Amendment……31

United States Constitution, Sixth Amendment…...31

United States Constitution, Fourteenth Amendment

………………………………………….2, 4, 10, 17, 32, 34

Federal Statutes

28 USC §1257(1)…………………………………………1

Federal Rules of Civil Procedure

12(b)(6)…………………………………………….……..13

Georgia Statutes

OCGA §17-3-2(1)…………………………...…………..23

Indiana Statutes

I.C. 35-41-4-2(g)(1)……………………………..………24

Other Authorities

Mich. Crim. Jur. Inst. 1.8…………………………….12

Mich. Crim. Jur. Inst. 1.9…………………………….12

Mich. Crim. Jur. Inst. 3.2…………………………….12

Petitioner Joel Howard James prays this Court

will issue to the Michigan Court of Appeals a writ of

certiorari to review that Court’s attached opinion

reversing the decision of the 26th Circuit Court in

Alpena County, Michigan to dismiss the charges

against him

OPINIONS AND ORDERS BELOW

AND BASIS FOR JURISDICTION

Petitioner’s basis for seeking dismissal at the

trial court level included claims that, as applied to

him, the State of Michigan lacked a rational basis

under the equal protection clause of the United States

Constitution to differentiate between residents of the

state and nonresidents under the state’s nonresident

tolling provision, MCL 767.24. The state Circuit

Court dismissed the case after finding that, as applied

to Petitioner, the state lacked a rational basis for

distinguishing between residents and nonresidents.

The text of that opinion is located in the Appendix at

pp. 24A – 29A. The Court of Appeals reversed in a

published decision. The Court of Appeals’ decision is

located in the Appendix at pp. 1A – 16A. Leave to

appeal to the Michigan Supreme Court was timely

sought, but was denied on July 2, 2019. The Order

denying leave to appeal is located in the Appendix at

p. 17A. Accordingly, this Court has jurisdiction of this

case pursuant to 28 U.S.C. §1257(a).

PERTINENT PROVISIONS OF LAW

The provisions of federal law pertinent to this

petition are the Equal Protection Clause and the

Privileges and Immunities Clause, which are both

found in Section 1 of the Fourteenth Amendment to

the Constitution of the United States. Also pertinent

to resolving the federal question of this case is

Michigan’s nonresident tolling provision, MCL

767.24. Although both are concise and readily

quotable here, those provisions are, for ease of

reference, reproduced in the Appendix at 34A – 35A

and 30A – 33A, respectively.

STATEMENT OF THE CASE

Recent years have seen increasing instances of

allegations levelled against individuals—both

celebrity and ordinary citizen—involving claimed

sexual misconduct from years (or even decades)

earlier. Often, these accusations—which all too

frequently are accompanied by great public outcry—

surface for the first time long after any criminal

statute of limitations has expired. Many such cases

are impacted by nonresident tolling provisions.

Under such provisions, a citizen who, unaware of the

existence of any claim of wrongdoing and untainted

by any type of formal or informal complaint or report

to a governmental representative, allows his

employment to take him outside the state of

Michigan.1 Such was the case with Petitioner Joel

Howard James (“James”).

From the early 1990s until 2013, Petitioner

James primarily lived and worked in Alaska. During

that time, he made regular return trips to Michigan,

Although there are many other examples, cases involving

decades old claims of sexual misconduct against Catholic priests

and various celebrities come to mind.

where he owned a large tract of land. Until 2012,

James had never been under criminal investigation of

any sort, and Kristy Bartlett, the alleged victim in

this case, had never reported any sort of alleged

sexual misconduct by James. Then, in 2012, police

officers initiated an investigation into James’ alleged

sexual misconduct.2 As part of the investigation,

officers spoke with Bartlett, who claimed that James

had sexually assaulted her in 1996 or 1997.

At the culmination of the initial investigation

in 2013, James was at a worksite in Alaska when he

was approached by a group of police officers, placed

under arrest, and transported to a local jail where he

would be held for extradition to Michigan. When he

had gone to work that day, he had no way of knowing

that he would soon be facing charges with underlying

allegations that were substantially more than 10

years old.

As the initial cases involving other alleged

victims proceeded toward trial with Bartlett ready to

serve as an “other acts” witness under Michigan

statute, the People on June 1, 2015 filed additional

charges naming Bartlett as the complaining witness

alleging four counts of Criminal Sexual Conduct in

the Third Degree (“CSC 3rd”). At all relevant times

CSC 3rd was subject to a 10-year statute of limitations

under MCL 767.24(3).3

The initial investigation was centered on two other women but

would grow to include Bartlett. The cases involving other

women are not relevant to this appeal.

3 The statute further provides that the period of limitations

remains open until the victim’s twenty-first birthday, but this

provision is inapplicable since Bartlett was born in 1982.

Because the sexual events were alleged to have

occurred in 1996 or 1997, the applicable 10-year

statute of limitations would have run in 2006 or 2007

if James were a Michigan resident.

However,

although he continuously owned property in the State

of Michigan and routinely returned for periods of time

in most years, it is undisputed that James’ legal

residence remained in Alaska until the time he was

extradited to Michigan to face the current charges.

Logically, no police investigation as to

Bartlett’s allegations could have begun until after she

had made them and, indeed, no police investigation of

any sort involving James was commenced until

approximately November 2012, shortly after Bartlett

first reported the alleged sexual abuse. The People

did not file charges until 2015.

This case hinges upon analysis of the Equal

Protection Clauses of the Fourteenth Amendment as

it relates to MCL 767.24, the nonresident tolling

provision relevant to this matter:

“Any period during which the party

charged did not usually and

publicly reside within this state is

not part of the time within which

the respective indictments may be

found and filed.” MCL 767.24(10).

Petitioner initially moved to dismiss on

different grounds while this case was in the 88th

District Court. The District Court issued a written

opinion dated August 12, 2015 that the case was not

untimely under the applicable statute of limitations

and that the statute, if read literally, did not produce

an “absurd and unjust result” inconsistent with the

purposes and policies of the act.

Petitioner filed an interlocutory appeal to the

26th Circuit Court, which affirmed the District Court’s

decision. In doing so, though, the Circuit Court made

a number of factual determinations (which the parties

do not dispute) relevant to this appeal (Opinion and

Order Dated September 8, 2015 see Appendix pp. 18A

– 23A):

¾ James was, in 1996, a resident of Alaska

and remained so until being extradited.

(Appendix p. 19A).

¾ A ten-year statute of limitations applies

to the charges. (Appendix p. 19A).

¾ Had James been a constant resident of

Michigan, the statute of limitations

would have expired. (Appendix p. 20A).

The case involving Bartlett has been tried on

two occasions4 resulting in acquittal as to two counts

and hung juries as to the other two. When the People

gave notice of their intent to try the case a third time,

James filed a different motion on December 5, 2017.

This time, James did not directly attack the statute,

but instead claimed that it violated his right to equal

protection and the privileges and immunities of

First from September 29, 2015 through October 2, 2015, then

May 11, 2016 through May 13, 2016.

citizenship under the state and federal constitutions

as applied.

In an Opinion and Order dated January 18,

2018, the Circuit Court agreed, stating:

“MCL 767.24(10) provides that the

limitations period is tolled for “any

period during which the party

charged did not usually and

publicly reside within this state…”

In interpreting this language,

courts have consistently held that

nonresident tolling “applies only in

those situations where a suspect is

no longer a resident of this state.”

People v Crear, 242 Mich.App 158;

618 N.W.2d 91 (2000); overruled in

part on other grounds by People v

Miller, 482 Mich. 540, 759 N.W.2d

850 (2008) (emphasis added); see

also People v McIntire, 232

Mich.App 71, 105; 591 N.W.2d 231

(1998), reversed on other grounds

461 Mich 147 (1999).

These

holdings corroborate a former

attorney general opinion that

determined

the

statute

limitations will not run against an

accused while not usually and

publicly residing within the state.

Op Atty Gen, 1928-1930 p582.

Logically,

then,

the

tolling

provision advances a state interest

in permitting later prosecution in

cases where a suspect or accused no

longer resides in Michigan.

In comparison, it is undisputed

that defendant was not a suspect

until after the statute of limitations

had expired. This is because he

was not accused of any wrongdoing

until 2012, and no investigation

commenced until that time. The

Court is aware of no case in

Michigan jurisprudence where

nonresident tolling has been

applied

under

such

circumstances. Rather, the tolling

provision seems to have only been

applied in limited situations where

a suspect was a nonresident during

the limitations period. See People

v Crear, 242 Mich.App 158; 618

N.W.2d 91 (2000); overruled in part

on other grounds by People v

Miller, 482 Mich. 540, 759 N.W.2d

850 (2008); see also People v

McIntire, 232 Mich.App 71, 105;

591 N.W.2d 231 (1998), reversed on

other grounds 461 Mich 147 (1999);

and People v Budnick, 197

Mich.App 21; 494 N.W.2d 778

(1992); The Court sees no rational

basis for the tolling provision to be

extended to this case.

The Court is mindful that this is an

exceptionally limited, fact-driven

circumstance

involving

MCL

767.24(10).

Nonetheless,

defendant, as a class of one, has

sufficiently demonstrated that the

statute violates equal protection in

this manner.” (Appendix p. 29A).

The People appealed the Circuit Court’s

decision, claiming that application of the nonresident

tolling provision of MCL 767.24 to James violates

neither the equal protection clauses nor the Privileges

and Immunities clause of the Michigan or United

States Constitution and that, in finding that the

tolling provision did not apply to James, the Court

abused its discretion.

James responded that he was (and remains)

presumed innocent of any wrongdoing and denies

even the occurrence of any of the incidents alleged to

have transpired in 1996 or 1997. Moreover, because

Bartlett did not make any complaint, allegation, or

assertion or any kind against James until 2012; and

because nobody—governmental entity or otherwise—

commenced any sort of inquiry or investigation into

Bartlett’s claims until 2012, the government had no

rational

basis

for

distinguishing

between

nonresidents and residents until at least five years

after the statute of limitations should have run.

Accordingly, as applied to the unique circumstances

of this case, application of the nonresident tolling

provision of MCL 767.24 to James would violate his

right to equal protection under the laws. Thus, the

Circuit Court, having determined that the

nonresident tolling provision was unconstitutional as

applied to James, correctly concluded that it had no

choice but to dismiss as untimely the claims against

him.

The Michigan Court of Appeals, in a published

decision and a matter of first impression dated

October 11, 2018, reversed the Circuit Court’s

decision, stating:

“If a crime occurs, but no one

reports it, is it still a crime? To ask

the question is to answer it. The

state of Michigan has an interest in

discovering previously unreported

crimes, and this interest serves as

rational

basis

for

the

Legislature’s tolling of the statute

of limitations with respect to

nonresidents charged with a crime

that remained unreported until

after the untolled limitations

period had lapsed.” (Appendix p.

2A).

James next sought leave to appeal the Court of

Appeals’ decision with the Michigan Supreme Court

because, he contended, the Court of Appeals created a

domino effect of errors in assuming that a crime

occurred. Rather than presume that criminal activity

has occurred when hindsight of more than a decade is

the only tool of analysis, James maintains that the

test in determining whether the state has a rational

basis for distinguishing between residents and

nonresidents is whether some triggering event—a

report, complaint, or investigation of some kind—

occurs prompting the government to exercise its

interest. Under that test, the claims against James

would be time barred because, for the entirety of the

ten-year limitations period (and indeed, for an

additional five or more years), the government had no

notice that there was any sort of allegation to

consider.5

The Michigan Supreme Court denied James’

Application for Leave to Appeal in an Order dated

July 2, 2019 (Appendix p. 17A).

REASONS FOR GRANTING THE PETITION

Given the current political climate with regard

to claims of sexual misconduct from the distant past,

this is a situation that is likely to be often repeated in

the coming years. Accordingly, this is an issue of

great public interest and, because it goes directly to

the heart of Constitutional protections afforded

individuals, it involves principles of major legal

significance. Finally, this Court has not yet spoken

on this issue, and there exists a conflict between state

courts as to the application of nonresident tolling

provisions.

The crucial overarching issue for consideration

is this: whether James’ rights as a “class of one”

The Court of Appeals seems to conclude that if a tree falls in

the forest (despite the presumption that it is innocent of falling),

the government has an inherent interest in it even though the

event may not be reported for decades. Petitioner James

maintains that until there is a report of some sort, the state not

only has no reason to know that a tree may have fallen, it is

unaware even of the possibility of the existence of a forest in

which it may be interested.

under the equal protection clause of both the

Michigan and United States Constitutions are

violated through the application of the nonresident

tolling provision at MCL 767.24(10). For the reasons

set forth below, the nonresident tolling provision, as

applied to him, violated his rights to equal protection

and the Court of Appeals erred in reversing the

Circuit Court’s earlier decision.

The steps in a criminal investigation

do not presume criminal activity.

The Court of Appeals concludes without

analysis that criminal activity has occurred in this

case where no such finding has been made:

“We point out the obvious—an

unreported crime is still a crime,

and the victim of an unreported

crime is still a victim. There may

be any number of reasons why a

crime is not initially reported,

including

victim’s

age,

vulnerability, or fear, or the lack of

corroborating witnesses or physical

evidence. The state certainly has

interest

discovering

previously unreported crimes, as

well as subsequently investigating

and prosecuting them. Cf March,

395 SW3d at 787 (holding that “the

State’s interest in detecting crime

and

punishing

offenders

compelling” (emphasis added));

Sher, 149 Wis 2d at 16 (observing

that the “statute is substantially

related to the state’s interests in

detection of crimes, and the

identification and apprehension of

criminals

(emphasis

added));

Scherling v Superior Court of

Santa Clara County, 22 Cal 3d 493,

503; 585 P2d 219 (Cal 1978)

(concluding that “the Legislature

could have determined that the

detection of the crime and

identification of the criminal are

more likely if the criminal remains

in the state than if he departs”

(emphasis added)).” (emphasis in

original).

While it is obvious that an actual crime, though

unreported, is still a crime, it is similarly obvious that

the mere report of a crime does not gain actuality

until the suspect defendant’s presumption of

innocence is burst by virtue of a conviction. See, e.g.,

Michigan Crim. Jury Instr. 1.8, 1.9, and 3.2(1)

(Appendix pp. 36A – 40A). Indeed, a statute of

limitations is blind to the ultimate truth or falsity of

criminal allegations as its concern relates instead to

the passage of time and its effect upon the accuracy of

testimony and unfairness that may result from stale

evidence and dull memories. People v McCausey; 65

Mich. 72, 73; 31 N.W. 770 (1887); People v Budnick,

197 Mich. App. 21; 494 N.W.2d 778 (1992); People v

Allen, 192 Mich. App. 592, 602; 481 N.W.2d 800

(1992). This Court discussed the purpose of statutes

of limitations in Toussie v. U.S.:

“The purpose of a statute of

limitations is to limit exposure to

criminal prosecution to a certain

fixed period of time following the

occurrence of those acts the

legislature has decided to punish

by criminal sanctions. Such a

limitation is designed to protect

individuals from having to defend

themselves against charges when

the basic facts may have become

obscured by the passage of time

and to minimize the danger of

official punishment because of acts

in the far-distant past. Such a time

limit may also have the salutary

effect

encouraging

law

enforcement officials promptly to

investigate suspected criminal

activity.” 397 U.S. 112 (1970).

In determining whether a statute of limitations

has been violated, the Court has no power to consider

the merits of the underlying claim, the factual

development of the case, or the strength of the

potential testimony against a defendant.6

The

calculation is a simple one: has more time passed

than has been permitted by the legislature for filing a

complaint against a defendant? Thus, the Court of

6 Consider that in civil cases, motions for summary disposition

pursuant to MCR 2.116(C)(7) in Michigan and Rule 12(b)(6)

federally accept the pleadings as true and look only into

additional documentary evidence that sheds light onto the

timeliness of the complaint. See, e.g. Kuznar v Raksha Corp,

481 Mich 169, 175-176; 750 NW2d 121 (2008).

Appeals, in focusing on the supposed existence of

crime, is at once making both a constitutionally

impermissible “leap” and delving into matters not

relevant to a statute of limitations analysis.

II.

As applied to James as a class of one,

MCL 767.24(10) constitutes a violation

of his rights to equal protection of the

laws.

Claims under the equal protection clause may

either be made on behalf of a protected class or under

a “class of one” theory. While protected classes are

afforded heightened levels of scrutiny, class of one

claims are subject to rational basis review. 7

This Court has “recognized successful equal

protection claims brought by a ‘class of one,’ where the

plaintiff alleges that [he or] she has been intentionally

treated differently from others similarly situated and

that there is no rational basis for the difference in

treatment.” Village of Willowbrook v. Olech, 528 U.S.

562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)

(citing Allegheny Pittsburgh Coal Co. v. Comm'n of

Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d

The recognized suspect classes are race, national origin,

religion and alienage. Although state citizenship has not been

recognized as a suspect class, it bears many traits similar to the

national origin class. That is, there is not a significant difference

between treating a person differently because he or she is from

India or Indiana. If the Court finds state citizenship to be a

suspect class, it should measure conduct under the strict

scrutiny standard. However, Defendant James contends that

the application of the statute at issue here fails to meet even the

less rigid rational basis standard.

688 (1989) and Sioux City Bridge Co. v. Dakota Cty.,

260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923)).

The extent to which individuals must be

similarly situated to maintain a class of one claim is

still an underdeveloped area of law. See McDonald v

Village of Winnetka, 371 F.3d 992, 1002 (7th Cir.

2004). However, as the Circuit Court noted, in order

to be similarly situated, the challenger and his

comparators must be “prima facie identical in all

relevant respects or directly comparable…in all

material respects.” United States v Moore, 543 F.3d

891, 899 (7th Cir. 2008); Lima Twp v Bateson, 302

Mich.App 483, 503; 838 N.W.2d 898 (2013) (emphasis

added).8

“[I]n order to prove that they are being treated

differently than other people who are similarly

situated, [the person claiming the violation] must

obviously be able to identify a class of persons to

whom they are similarly situated but less favorably

While it is true that the issue of whether individuals are

similarly situated is a factual question for a jury, here there is

no factual dispute for a jury to decide. Instead, the parties agree

as to the basic underlying facts and, although summary

disposition is not an available avenue in a criminal proceeding,

this Court has the ability to decide the underlying legal issue

given the lack of factual dispute: Whether individuals or entities

are similarly situated is generally a question of fact for the jury;

"however, where there is no genuine issue of fact that such a

comparator exists, the court may decide this matter on summary

judgment." JDC Mgmt, LLC v Reich, 644 F.Supp.2d 905, 927

(W.D. Mich 2009) citing Smith v. Atlanta Indep. Sch. Dist., 633

F. Supp. 2d 1364, 2009 U.S. Dist. LEXIS 37767, 2009 WL

1259209, (N.D. Ga. May 4, 2009).

treated.” Sector Enterprises, Inc. v. DiPalermo, 779

F.Supp. 236, 246–47 (N.D.N.Y.1991).

III.

James is similarly situated to other

individuals neither accused of nor

under investigation for crimes until

after the statute of limitations had run,

regardless of state of residence.

Rather than presume governmental interest in

the hypothetical possibility that someone could come

forward at a future time, it seems far more sensible—

and constitutionally sound—to distinguish between

citizens only when such distinction becomes relevant.

Here, there exists a clear group of similarly situated

individuals: individuals who, though clothed in the

presumption of innocence, may have engaged in

illegal activity as to which (a) no objectively

undeniable event (such as a stolen item or a burned

down building) occurred, (b) no allegation was made

during the term of the applicable statute of

limitations and (c) no investigation had been

commenced by any governmental agency during the

term of the applicable statute of limitations.

Under this analysis, the distinction between

residents of Michigan and nonresidents is wholly

irrelevant and immaterial because nothing had been

reported and there was nothing to investigate. Thus,

because there had been no identifiable event, nothing

had been reported, and there was no investigation

underway, residents and nonresidents of Michigan

are precisely the same—citizens equally bound by the

laws of the State of Michigan and of the United States

but not sought for questioning or under suspicion of

any kind. Moreover, the comparators, as citizens of

the United States and beneficiaries of its

Constitution, are equally protected by the equal

protection clause whose breadth ignores state lines

when applied to the circumstances of this case. 9

And, equally importantly, there was no

“victim” to protect or for whom to seek justice because

none had come forward. Thus, there was neither a

“wrong” to avenge nor a wrongdoer to seek. Indeed,

any distinction between residents and nonresidents

would be entirely insignificant and purely conjectural

until an identifiable event occurs triggering a

complaint, investigation, or inquiry of some sort.

The Court of Appeals began its equal protection

analysis by finding that James was not similarly

situated to Michigan residents. It found that because

a person must be similarly situated in all material

respects, and because state of residency is a material

respect, residents and nonresidents should not be

paired together for equal protection analysis:

“As explained, defendant argues

that he should be compared to

Michigan residents who were not

identified as a suspect for a

reported crime within the untolled

limitations periods.10

This protection is enhanced by James’ entitlement to the

privileges and immunities of citizenship under the 14th

amendment as later discussed.

10 This is not an accurate description. Indeed, James argues that

he should be compared with individuals to which both of the

following apply: (1) no “triggering event”—such as a criminal

…

There is, however, a flaw in

Defendant’s argument. The set of

similarly situated persons must be

comparable to defendant in all

material aspects. On its face, the

tolling provision applies to all

persons who commit a crime in

Michigan and then no longer reside

usually and publicly in the state.11

MCL 767.24(8). Following this, the

most natural comparison set for

defendant’s claim would be those

persons who do not usually and

publicly reside here. See e.g. State

v March, 395 SW3d 738, 788 (Tenn

App 2011) (“The tolling statute on

its face applies equally to all

persons who commit a crime in this

State and then depart.”).

The inherent flaw in the Court of Appeals’

analysis lies in its assumption that there is something

to investigate prior to a triggering event:

complaint, 911 call, report to counselor, etc.—occurred to initiate

governmental action and (2) Defendant was never identified as

a suspect. In James’ analysis, state of residency does not matter

because, until the “triggering event” occurs, any distinction

between residents and nonresidents is purely irrelevant.

11 Under this analysis, James should be immune from

prosecution because he resided in Alaska before AND after the

supposed criminal event occurred. Thus, the out of state

residency did not follow the alleged criminal conduct, it preceded

it.

“Yet, with respect to a state’s police

power, there is a material

distinction between someone who

resides within the state and

someone who does not. A state’s

power to investigate and prosecute

a person is severely diminished

when that person does not reside

within its borders. State and local

law enforcement resources are not

infinite, and such resources will

often be insufficient to investigate,

question, or prosecute someone

who resides in a different state.

See Burns v Lafler, 328 FSupp 2d

711, 721 (ED Mich 2004). Choices

need to be made about how best to

allocate finite law enforcement

resources and rarely will those

resources best be used pursuing

out-of-state persons. Moreover, as

laboratories for public policy, other

states may not share Michigan’s

priorities with respect to criminal

law, and a case that is important in

this state may receive less

attention from authorities in

another state. See State v Sher,

149 Wis2d 1, 14; 437 NW2d 883

(Wis 1989). For these and other

reasons, courts have held that

residents and nonresidents are not

similarly situated for equalprotection purposes.

See, e.g.

Burns, 328 F Supp 2d at 721

(collecting cases).

Petitioner James agrees with the cited cases

concerning governmental interest in distinguishing

between residents and nonresidents. There is no

question that, in a criminal investigation, the

government’s efforts are frustrated by a suspect or

witness being absent from the state. But there is a

crucial distinction between the cases cited by the

Court of Appeals and James’ case. In the cases cited,

there was a complaint to investigate, whereas in

James’ case, the government was not expending any

resources, its purposes were not frustrated, and its

ability to investigate and prosecute was in no way

diminished because no complaint had been made, no

investigation initiated.

IV.

Courts have previously held that

speculative or hypothetical interests

are not constitutionally actionable.

As applied to individuals, Courts have

routinely held that “an abstract need or unilateral

expectation” does not give rise to constitutional

protection. See, e.g., Richardson v Township of

Brady, 218 F.3d 508 (6th Circ. 2000), Board of Regents

v Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548

(1972), RRI Realty Corp. v. Inc. Vill. of Southampton,

870 F.2d 911, 918 (2d Cir. 1989).

These cases highlight the fact that “damages”

perceived through the distorted lens of speculation,

hypothesis or untamed imagination stand outside the

door inside which constitutional protection resides.

Indeed, were the door to constitutional protection to

be opened to the supposed impairment of a nonexistent complaint and investigation as requested by

the People and condoned by the Court of Appeals, a

fundamental freedom against governmental intrusion

would be forced to exit.

Such is the case here. No investigation was

commenced, no allegations made, no charges filed,

and no case filed until over five years after the statute

of limitations should have run.

As there can be no dispute that James would be

treated differently than a similarly situated person

through application of the nonresident tolling

provision, the next issue is whether there exists a

rational basis for the different treatment.

There is no rational basis for the

difference in treatment.

When those who appear similarly situated are

nevertheless treated differently, the Equal Protection

Clause requires at least a rational reason for the

difference, to ensure that all persons subject to

legislation or regulation are indeed being "treated

alike, under like circumstances and conditions."

Thus, when it appears that an individual is being

singled out by the government, the specter of

arbitrary classification is fairly raised, and the Equal

Protection Clause requires a "rational basis for the

difference in treatment." Engquist v Or. Dep’t of

Agric., 553 U.S. 591, 602; 128 S.Ct 2146; 170 L.Ed.2d

975 (2008); citing Village of Willowbrook v Olech, 528

U.S. 562, 564, 120 S. Ct. 1073, 145 L. Ed. 2d 1060

(2000).

And in considering whether there is a rational

basis for different treatment, courts must bear in

mind the purpose behind a statute of limitations,

namely, the potential for an unjust result due to the

passage of time.

The Court of Appeals began its rational basis

analysis with its conclusion that an unreported crime

is still a crime. It found that “the state certainly has

an interest in discovering previously unreported

crimes, as well as investigating and prosecuting

them.” This rationale is indisputable as far as it goes.

Certainly, one can imagine many circumstances

where there would exist rational bases for treating

those residing in another state differently than those

residing in Michigan. Leaving the state knowing one

is a suspect or even a “person of interest” to a fledgling

investigation are prime examples, but when an

individual’s residency alone imparts no impact on a

criminal investigation, as here, the Court of Appeals

rationale is at once illogical and irrelevant.

In at least two published cases, state courts

have rejected the prosecution’s contention that

residence in and of itself constitutes a rational basis

for dissimilar treatment. In Danuel v State, 262 Ga

349 (1992), the Georgia Supreme Court analyzed a

nonresident tolling provision similar to Michigan’s.

In that case, the defendant had moved across state

lines shortly after the crimes had occurred, and both

the victim and witnesses knew exactly where he was.

The victim, defendant’s daughter, reported the

conduct shortly after the defendant refused to pay the

level fees for the victim’s divorce and custody dispute.

There, the Court held:

‘The state urges that OCGA § 17-32 (1) should be construed to mean

that whether the applicable statute

of limitation is tolled depends

solely upon the legal residence of

the alleged offender. On the other

hand, Danuel contends that such

an interpretation violates the equal

protection clause of both the U.S.

and the Georgia Constitutions.

Assuming, without deciding, that

Danuel is correct in this regard, we

will not interpret OCGA § 17-3-2

(1) in a manner which causes it to

be unconstitutional when there is

another interpretation for the

statute which is long standing,

logical,

and

constitutionally

sound.” Id. at 352.

Similarly, in Heitman v State, 627 N.E.2d 1307

(1994), the Indiana Court of Appeals stated in the face

of the state’s “residents only” defense of a similar

tolling provision:

“Were we to enforce the State's

interpretation of the statute of

limitations, the absence of a fair

and substantial relation between

the classification of residence and

the purpose of bringing criminals

to justice would render I.C. 35-414-2(g)(1) unconstitutional. If a

suspect has left Indiana and is

evading extradition or is otherwise

avoiding authorities, there would

be reason to toll the statute of

limitations. If a suspect has left

Indiana but cooperates fully with

Indiana authorities, and returns

voluntarily to Indiana to face the

charges against him, there would

be no reason to toll the statute of

limitations.” Id. at 1309-1310.12

In this case—the first of its kind in Michigan—

the Court of Appeals chose to paint with a broad

brush the state’s supposed interest:

“Moreover,

certainly

conceivable that an unreported

crime will more likely be discovered

when the guilty party resides

within the state where the crime

occurred.

A chance encounter

between the guilty party and the

victim, a casual conversation

between the guilty party and

someone with knowledge of the

victim or circumstances, or a

relatively minor traffic infraction

The Court ultimately held the statute constitutional as its

specific language, properly interpreted, classified suspects based

on their “amenability to process” rather than residence location.

leading to a confession, are just

several circumstances in which

residing in the same state where

the crime occurred could increase

the chance of local law enforcement

discovering an unreported crime.

Proximity often leads to discovery.”

(Appendix at p. 14A).

Then, in the next breath, the Court of Appeals

identifies what is perhaps the strongest argument for

reversal of its ultimate conclusion:

“Defendant is correct that a

“purely hypothetical” criminal

act cannot serve as a rational

basis

for

distinguishing

between

residents

and

nonresidents.

Yet,

the

prosecutor’s case here does not rest

on a “purely hypothetical claim.

Rather, the prosecutor presented

sufficient evidence to establish that

there was probable cause to believe

that defendant sexually assaulted

the complainant.” (Appendix at p.

14A. emphasis added).

The flaw in the Court of Appeals’ conclusion is

that it considered evidence acquired after the statute

of limitations had already run—the equivalent of

counting a basket scored years after the final buzzer

has sounded. Indeed, throughout the limitations

period, the existence of a crime, or even of an

allegation of a crime, against Joel James was purely

hypothetical.

In support of its identified rational basis, the

Court of Appeals relied upon a number of nonprecedential cases—each at least 28 years old—from

outside the State of Michigan, including Scherling v

Superior Court, 22 Cal.3d 493; 585 P.2d 219 (1978).

There, the defendant alleged an equal protection

violation where he was charged in 1976 for burglaries

committed in 1966 and 1967 despite a three-year

statute of limitations. Although the People claim that

the crime was not reported until 1976, the court’s

opinion declares otherwise, outlining an investigation

beginning as early as 1967 and well within the period

of limitations.

Regarding the impact of the defendant’s

change of residence from California to Idaho, the

Court declared:

“It is not unreasonable to find that

he would have been a target of

suspicion sooner if he had

remained in California.” Id. at 14.

Next, the Court considered the Wisconsin case

of State v Sher, 149 Wis.2d 1; 437 N.W.2d 878 (1989)

regarding whether a nonresident tolling provision is

related to a number of legitimate state objectives.

The Sher court identified “the identification of

criminals, the detection of crimes, and the

apprehension of criminals.” Id. at 14.

Unlike in the instant case, the Sher court

considered a situation where a boat was stolen from a

marina, reported as such, and investigated while the

period of limitation was still running. The defendant

was not charged until eight years later, in violation of

the statute of limitations but for the nonresident

tolling provision. Under those circumstances, the

state had a legitimate interest in detecting what was

clearly a crime because it had located and identified

the corpus delicto. And it had an interest in

identifying and apprehending the criminals because,

once an investigation reveals a suspect, the next

logical step is to charge the suspect with a crime.

But the world of equal protection, especially

class of one equal protection, depends upon the

specific factual scenarios of a case as its lifeblood.

And here, none of the circumstances present in Sher

existed. Instead, the proverbial radar was silent until

years after the statute of limitations should have run.

In New Mexico v Cawley, 110 NM 705; 1990

N.M.S.C. 088; 799 P.2d 574 (1990), a criminal sexual

conduct case, the defendant was alleged to have raped

his ten-year-old stepdaughter in May 1968. After the

alleged incident occurred and before a criminal

complaint was filed, the defendant left New Mexico

for Texas. It is not at all clear when the alleged

incident was reported. However, the defendant

resided in Texas for approximately eleven years,

returning to New Mexico only occasionally for

business and personal matters. Defendant was

charged in 1988, ten years after the applicable statute

of limitations would have run.

In affirming the conviction, the New Mexico

Supreme Court held that the legislature “intended

the tolling statute to foreclose the barring of a

prosecution due to the voluntary absence from the

state by a criminal offender.” Id. at 577. In holding

that a rational basis existed for the different

treatment, the court relied on the state’s concern that

“the process of investigation and prosecution of a

crime become more complex when a suspect leaves

the jurisdiction.” Id.

There is at least one crucial distinction

between Cawley and the instant case. Where in

Cawley, the defendant was deemed a suspect during

his period of absence from the state, James was not so

identified until at least five years after the statute of

limitations would have otherwise run. Thus, the

Cawley court’s identified interest in keeping

“suspects” within the jurisdiction for ease of

investigation and prosecution has no bearing on

James.

And other Michigan cases are uniformly

distinguishable from the circumstances set forth in

this case. A number of cases identify a state interest

in permitting later prosecutions in cases where a

suspect or accused no longer resides in Michigan. But

in each of those cases, the incidents had been reported

and an investigation was underway well before the

statute of limitations had run.

Moreover, no

Michigan case analyzes the factual scenarios under a

class of one equal protection analysis.

In People v Crear, 242 Mich.App 158; 618

N.W.2d 91 (2000), the court considered a sexual

assault alleged to have occurred in 1984 that was

indisputably reported to school officials and police in

that same year, though charges were not filed at that

time. People v Blackmer, 309 Mich.App 199; 870

N.W.2d 579 (2015) involved an alleged sexual assault

at gunpoint in 1981 that was reported and

investigated immediately. Police closed the file in

1982 without having identified a suspect. Meanwhile,

in People v Rapp (Docket Number 333613,

unpublished November 2017), the alleged 1986 sexual

assaults committed by defendant, a Catholic priest,

had been reported to the church around the time of

the events, and the defendant had been treated for

pedophilic tendencies and shifted from parish to

parish for years because of his sexual issues.

Meanwhile, People v McIntire, 232 Mich.App

71; 591 N.W.2d 231 (1998) involved a murder

investigation commenced in 1982 with obvious

distinguishing factors. The Defendant was aware of

the ongoing investigation having been summoned to

testify at an inquiry as a witness. In 1984, with the

murder still unsolved and the investigation still

incomplete, the Defendant moved to South Carolina.

In, 2004 Mich.App LEXIS 3224 (unpublished

2004), the Court of Appeals considered the claim of a

Catholic priest alleged to have sexually abused an

altar boy from 1971 until 200013 where the incidents

were not reported until 2002. Defendant claimed

that, despite moving to Florida in 1976, the

13 The evidence suggested an ongoing sexual relationship

between the two despite the priest’s eventual change in

residence.

approximate 30-year delay in reporting and filing

charges violated MCL 767.24 because it was

“fundamentally unfair” to toll the limitation period

where he was “residing openly in Florida, the

complainant knew his whereabouts, and he did not

leave the state to avoid prosecution.” Olszewski at 16

- 17.

The Court, finding the language of the statute

plain and unambiguous, found:

“Defendant

admits

that

transferred to Florida and left

Michigan in 1976, and resided

there continuously until he was

charged in this case. Because there

is no dispute that defendant had

not usually and publicly resided in

Michigan since 1976, the trial court

did not err in concluding that the

period of limitations was tolled

and, consequently, that the charges

in this case were timely filed.”

Olszewski at 16 - 17.

Olszewski is consistent with the District

Court’s earlier decision and the Circuit Court’s earlier

affirmance in the instant case. Simply put, the court

examined the language of MCL 767.24, found it to be

clear and unambiguous, and found it to apply to all

nonresidents—not only those who fled the jurisdiction

to avoid prosecution. What the court didn’t do—and

this Court has not yet done—is examine the statute

through a Constitutional lens.14

Such a challenge, however, is not without

federal precedent. In Burns v Lafler, 328 F.Supp.2d

711 (E.D. Mich 2004), the Court considered such a

challenge in an action arising out of an arson charge,

and its “rational basis” analysis under equal

protection confirms the accuracy of the Circuit Court’s

decision in this case.

In Lafler, the Adrian Auto Auction house was

burned to the ground in 1991. An investigation

started immediately thereafter and, although the

defendant was identified as a suspect within two

weeks of the fire, there was not sufficient evidence to

authorize charges. In 1998, one of the defendant’s coconspirators spoke to police and implicated him in an

actionable way. Between the time of the incident and

the filing of charges, the defendant lived in Ohio.

When charges were filed against him

approximately 7 years later, the defendant contended

that the statute of limitations was violated and that,

in any event, the nonresident tolling provision of MCL

767.24 violated his constitutional rights to Due

14 Most recently, this Court considered the nonresident tolling

provision in People v Kasben, 500 Mich 948, 890 N.W.2d 354

(2018, for publication), but as that case involved numerous

legislative extensions of the statute of limitations which

ultimately allowed prosecution at any time, and as the court did

not consider an equal protection analysis, it is not relevant to the

case at hand.

Process, Speedy Trial, and Equal Protection under

the 5th, 6th and 14th Amendments.15

In considering the equal protection claim under

a rational basis test, the Court concluded that:

“A rational basis exists for

provisions of the statute of

limitations which exclude from the

limitations period any time in

which a criminal defendant was not

a resident of the prosecuting state,

because nonresidents are not

similarly situated to residents,

in that investigating, charging,

and prosecuting an individual

with a crime is generally more

difficult when the suspect is

not within the state.” Id. at 721

(emphasis added), citing People v

Laughlin, 293 Ill.App.3d 194, 687

N.E.2d 1162, 227 Ill.Dec.680

(Ill.App.Ct. 1998) and Scherling v

Superior Court, 22 Cal.3d 493, 585

P.2d 219, 149 Cal. Rpter 597 (Cal.

15 The federal court found that the due process claim was without

merit because Defendant could not show either substantial

prejudice to his right to a fair trial or that the delay was an

intentional device by the government to gain a tactical

advantage, both of which were required under United States v

Brown, 959 F.2d 63 (6th Cir. 1992) and its progeny. And, because

speedy trial rights are not implicated until charges are pending,

his claim that the delay resulted in a violation of his right to a

speedy trial similarly lacked merit. See United States v

MacDonald, 456 U.S. 1, 71 L.Ed.2d 696, 102 S.Ct. 1497 (1982);

United States v Norris, 780 F.2d 1207 (5th Cir. 1986)

1978); and United States v Udell,

109 F.Supp 96, 97-98 (D. Del 1952).

In Laughlin, the defendant, a teacher, resigned

following a timely investigation into his alleged

sexual abuse of students. In Udell, the defendant

filed a falsified tax return with the Internal Revenue

Service which that agency immediately began looking

into. And in Scherling, police immediately began

investigating a string of burglaries and quickly

interviewed the defendant as a suspect. In each of

these four cited cases, unlike here, the State had an

immediate and identifiable interest in investigating,

charging, and prosecuting a crime that had been

reported and of which there was tangible evidence.

During the limitations period in this case—

from 1997 to 2007—it would not have mattered if

James was in Alaska, Alabama, Albania, Algeria or

even Alpena inhabiting a tent pitched on the

courthouse lawn. Indeed, James could have been

employed by the Alpena County Sheriff’s

Department—the very agency that eventually

investigated him—and have passed every background

check, qualified under every ethical standard, and not

aroused an ounce of suspicion from his coworkers or

any other law enforcement officials.

VI.

The difference in treatment as between

James and similarly situated Michigan

residents violates his Fourteenth

Amendment right to the privileges and

immunities of citizenship.

Although the extent of coverage of the

Privileges and Immunities Clause is sometimes

disputed, there is very little debate that one of the

fundamental rights it protects is a right to travel:

“Despite fundamentally differing

views concerning the coverage of

the Privileges or Immunities

Clause

the

Fourteenth

Amendment,

most

notably

expressed in the majority and

dissenting

opinions

the Slaughter-House Cases (1873),

it has always been common ground

that this Clause protects the third

component of the right to travel.

Writing for the majority in

the Slaughter-House Cases, Justice

Miller explained that one of the

privileges conferred by this Clause

"is that a citizen of the United

States can, of his own volition,

become a citizen of any State of the

Union by a bona fide residence

therein, with the same rights as

other citizens of that State." Saenz

v Roe, 526 U.S. 489, 503; 119 S.Ct

1518; 143 L.Ed.2d 689 (1999).

The Court continued:

"A citizen of the United States has

a perfect constitutional right to go

to and reside in any State

he chooses, and to claim citizenship

therein, and an equality of rights

with every other citizen; and the

whole power of the nation is

pledged to sustain him in that

right. He is not bound to cringe to

any superior, or to pray for any act

of grace, as a means of enjoying all

the rights and privileges enjoyed by

other citizens." Id. at 503-504,

citing Slaughter-House Cases, 83

U.S. 36, 112-113; 16 Wall. 36; 21

L.Ed 394 (1873).

Where, as here, a nonresident tolling provision

draws

distinctions

between

residents

and

nonresidents, a court must cast a wary eye and closely

examine the circumstances at issue lest there remain

untended a violation of the Privileges and Immunities

Clause. In this instance, a tolling provision whose

sole basis in reason is residency regardless of its

actual impact on the state’s interest in investigating

and prosecuting crimes presents a constitutional

violation times two lying directly in plain sight.

CONCLUSION

Our federal constitution stands as the finest

example of governmentally protected individual

rights known to mankind. The rights implicated in

this case are among its most important: the right to

be presumed innocent until proven guilty beyond a

reasonable doubt; the right to be treated the same as

other similarly situated individuals; and the right to

enjoy the same privileges and immunities as other

citizens. It is only when governmental interests

outweigh those precious rights that they must stand

aside.

And while there are certainly instances where

the State’s interest in investigating, interrogating,

charging, and convicting a criminal defendant is

sufficient to outweigh the protections of privileges

and immunities and equal protection, such is not the

case where no complaint has been made, no

investigation commenced, and no charges sought. In

such an instance, the possibility of criminality is

nothing more than mere conjecture. And where an

otherwise legitimate governmental interest is purely

a matter of abstract possibility, it cannot serve as a

basis to differentiate between citizens and noncitizens, residents and nonresidents.

The simple fact is this: Joel James bore exactly

the same odds of being criminally charged until 2007

as any resident of the state of Michigan. Thereafter,

based solely upon the identifier “Alaska” on his

driver’s license and without an ongoing investigation

or complaint, his odds became infinitely higher than

those of a Michigan resident thanks solely to the

nonresident tolling provisions of MCL 767.24. Its

application under these circumstances is offensive to

the United States Constitution.

Accordingly,

Defendant Joel James respectfully requests that this

Court issue a Writ of Certiorari to the Michigan Court

of Appeals.

Respectfully Submitted,

Matthew J. Wojda

Counsel for Petitioner

White, Wojda and Curtis

313 N. Second Avenue

Alpena, MI 49707

989-354-4104

mjwojda@dwwhitelaw.com

Date: September 30, 2019

APPENDIX

APPENDIX A

STATE OF MICHIGAN

COURT OF APPEALS

__________________________________/

PEOPLE OF THE

STATE OF MICHIGAN,

Plaintiff-Appellant,

FOR PUBLICATION

October 11, 2018

9:00 a.m.

No. 342504

Alpena Circuit Court

LC No. 15-006730-FH

JOEL HOWARD JAMES,

Defendant-Appellee.

_____________________________________/

Advance Sheets Version

Before: MURPHY, P.J., and

SWARTZLE, JJ. SWARTZLE, J.

SAWYER

and

If a crime occurs, but no one reports it, is it still

a crime? To ask the question is to answer it. The state

of Michigan has an interest in discovering previously

unreported crimes, and this interest serves as a

rational basis for the Legislature’s tolling of the

statute of limitations with respect to nonresidents

charged with a crime that remained unreported until

after the untolled limitations period had lapsed.

Defendant, a resident of Alaska, allegedly

sexually assaulted a female minor while visiting

Michigan in the 1990s. The statute of limitations

periods expired in 2006 and 2007 absent any tolling,

but the purported victim did not report the crime until

2012. The prosecutor charged defendant with

criminal sexual conduct (CSC) III, a crime for which

the statute of limitations is tolled while the person

charged resides outside of Michigan. The charges

were subsequently dismissed by the trial court on

equal-protection grounds because, had defendant

been a resident, the limitations period would have

expired before the crime was reported. Finding this to

be a distinction without a difference, we reverse.

I. BACKGROUND

Born in Michigan in 1955, defendant served in

the military and eventually moved to Alaska. From

the early 1990s until 2013, defendant worked

primarily for construction companies in Alaska,

although he periodically returned to Alpena County,

where he still owned property. Beginning in 1992,

during these trips to Michigan, defendant sexually

assaulted his then 11-year-old niece, and later,

beginning in the early 2000s, defendant allegedly

sexually assaulted his niece’s minor daughter.

Neither the niece nor her daughter reported the

matter to authorities until 2012, and during the

ensuing investigation, a third person disclosed to

police that defendant sexually assaulted her multiple

times in 1996 and 1997 when she was 13 and 14 years

old.

Defendant was extradited to Michigan in 2013

to face CSC charges involving the niece and her

daughter, and in 2015, the prosecutor filed similar

charges against defendant involving the third person.

Defendant was bound over on the various charges. A

jury subsequently found defendant not guilty on

charges related to the niece’s daughter, but a second

jury found defendant guilty of CSC-I with regard to

the niece. The jury deadlocked on the charges

involving the third person, and the prosecutor

subsequently refiled a new information charging

defendant with two counts of CSC-III involving this

third person. The current appeal solely involves these

refiled CSC-III charges.

Defendant moved to dismiss the refiled charges

based on the statute of limitations. The statute of

limitations for CSC-III in effect at the time stated

that a charge had to be filed within 10 years after the

offense occurred or before the alleged victim’s twenty3A

first birthday, whichever is later. MCL 767.24(3)(a).1

Given the person’s age at the time of the alleged

assaults, the latest periods would have expired in

2006 and 2007, well before defendant was extradited

and charged with CSC-III in 2015. Yet, the

Legislature also included a tolling provision

applicable to any limitations period that had not yet

expired: “Any period during which the party charged

did not usually and publicly reside within this state is

not part of the time within which the respective

indictments may be found and filed.” MCL 767.24(8).

2 In other words, the statute of limitations period is

effectively “paused” during the time the party resides

outside of Michigan or is otherwise “not usually and

publicly” residing in this state. There is no question

that defendant “did not usually and publicly reside”

in Michigan from at least the 1990s until 2013, so if

the tolling provision applies, the 10-year limitations

MCL 767.24 has been amended several times since the charges

in this case were filed. Most recently, MCL 767.24 was amended

to provide that a charge involving a minor victim of third degree

sexual assault has to be filed “within 15 years after the offense

is committed or by the alleged victim’s twenty-eighth birthday,

whichever is later.” MCL 767.24(4)(a), as amended by 2018 PA

182. Because defendant was charged in 2015 with committing

the instant offenses, however, the 2018 amendment is

inapplicable to this case.

“An out-of-state tolling provision has been part of MCL 767.24

for the entire time frame captured by this case.” People v

Kasben, 324 Mich App 1, 4 n 2; 919 NW2d 463 (2018). The outof-state tolling provision codified in MCL 767.24(8) at the time

the charges were filed in this case is now codified at MCL

767.24(11).

periods on the CSC-III charges would not have lapsed

by the time defendant was charged.

In his motion, defendant argued that the

tolling provision was unconstitutional as-applied to

him, both under the Equal Protection Clause and the

Privileges and Immunities Clause of the Fourteenth

Amendment. The trial court agreed with defendant,

reasoning that “the tolling provision seems to have

only been applied in limited situations where a

suspect was a nonresident during the limitations

period.” The trial court could find “no rational basis

for the tolling provision” to apply when no crime was

reported and the party charged was not a suspect

before the untolled limitations period had expired.

Concluding that the tolling provision violated

defendant’s right to equal protection, the trial court

dismissed the CSC-III charges.

This appeal followed.

II. ANALYSIS

There are two issues on appeal—does the

tolling provision in MCL 767.24 violate defendant’s

constitutional right to interstate travel or his right to

equal protection under the law? While defendant

argues that these are fact-based inquiries, the

pertinent facts are not in doubt. Accordingly, with

respect to the constitutional and statutory issues

applicable here, we review them de novo. People v

Harris, 499 Mich 332, 342; 885 NW2d 832 (2016).

A. TOLLING A LIMITATIONS PERIOD DOES NOT

VIOLATE THE RIGHT TO TRAVEL

We begin with defendant’s argument that the

tolling provision violates his constitutional right to

travel. Under the federal Fourteenth Amendment’s

Privileges and Immunities Clause, a person has the

fundamental right to travel across the United States.

US Const, Am XIV, § 1; Jones v Helms, 452 US 412,

418; 101 S Ct 2434; 69 L Ed 2d 118 (1981). This

fundamental right is not without qualification, and,

in the criminal context, the right is subject to the

legitimate interests of states. See Jones, 452 US at

419.

We find little merit in defendant’s argument.

The tolling provision here only applies when a party

is not usually and publicly residing in Michigan and,

therefore, it does not restrict in any way a person’s

right to travel within, across, or outside of Michigan’s

borders. Although the provision does create a

negative consequence for someone who resides

outside of Michigan and becomes a suspect in a crime

that occurred within the state, this Court has already

held that “the tolling provision advances a compelling

state interest in permitting later prosecutions in

cases where a defendant no longer resides in the

jurisdiction.” People v Crear, 242 Mich App 158, 166;

618 NW2d 91 (2000), overruled in part on other

grounds by People v Miller, 482 Mich 540 (2008); cf.

Commonwealth v Lightman, 339 Pa Super 359, 372;

489 A2d 200 (1985) (Spaeth, P.J., concurring and

writing for the majority) (holding that “appellant’s

right to travel was qualified, if at all, not by an

arbitrary distinction drawn by the government, but

by his own criminal conduct”). Although Crear was

subsequently overruled on other grounds and

therefore the decision is not binding, Dunn v Detroit

Auto Inter-Ins Exch, 254 Mich App 256, 262; 657

NW2d 153 (2002); MCR 7.215(J)(1), we agree with its

analysis and come to the same conclusion—the tolling

provision of MCL 767.24 does not violate the right to

travel found in the Privileges and Immunities Clause

of the Fourteenth Amendment.

B. THE TOLLING PROVISION

VIOLATE EQUAL PROTECTION

DOES

NOT

This leaves us to consider defendant’s primary

claim before the trial court and now on appeal—

whether defendant’s “rights as a ‘class of one’ under

the equal protection clause of both the Michigan and

United States Constitutions are violated through the

application of the nonresident tolling provision.” The

scope of Michigan’s Equal Protection Clause is

coextensive with that of its federal counterpart, so the

provisions will be considered together in analyzing

defendant’s claim. Const 1963, art 1, § 2; US Const,

Am XIV, § 1; see Crego v Coleman, 463 Mich 248, 258;

615 NW2d 218 (2000). In essence, equal protection

requires that persons be treated alike with respect to

“certain, largely innate, characteristics that do not

justify disparate treatment.” Crego, 463 Mich at 258.

Defendant concedes that the tolling provision

is constitutional on its face, but he argues that the

provision is unconstitutional as-applied to him

because he was never a suspect in a crime reported

before the statute of limitations period would have

run absent any tolling. Only after the untolled

limitations periods would have lapsed did the women

come forward and report that they had been sexually

assaulted by defendant years before. If he had been a

resident 3 throughout this period, then the limitations

periods would have expired in 2006 and 2007 before

any sexual assault was reported or he had become a

suspect, and, as a result, he would now be beyond

prosecution. To apply the tolling provision in this case

would be to treat him unequally to those residents

who are similarly situated, according to defendant.

Defendant presents his claim as an as-applied,

“class of one” equal-protection challenge. 4 To prevail

As noted, the tolling provision applies to those who did “not

usually and publicly reside” in Michigan, MCL 767.24(8), and

this encompasses more than just those who did not physically

reside in the state. For our purposes, we will refer to the

distinction between “residents” and “nonresidents,” but the

latter term should be understood to include those who physically

lived in Michigan, though not “customarily and openly.” Kasben,

324 Mich App at 9 (cleaned up).

A “facial” challenge and an “as-applied” challenge can share

some overlapping features. As the Sixth Circuit observed in

Green Party of Tennessee v Hargett, 791 F3d 684, 692 (CA 6,

2015), an as-applied claim “can challenge more than just the

plaintiff’s particular case without seeking to strike the law in all

its applications.” If successful, then defendant’s legal position

on the claim, defendant must show both that (1) he

“has been intentionally treated differently from

others similarly situated,” and (2) “there is no rational

basis for the difference in treatment.” Willowbrook v

Olech, 528 US 562, 564; 120 S Ct 1073; 145 L Ed 2d

1060 (2000). To be similarly situated to an identified

group, defendant must show that he is comparable in

all material respects to the members of that group. If

he cannot establish that he was treated unequally in

some material way, then there is no violation of equal

protection. Lima Twp v Bateson, 302 Mich App 483,

503; 838 NW2d 898 (2013).

As for the rational-basis inquiry, it is a highly

deferential one. Defendant must negate “every

conceivable reason for the government’s actions” or

show “that the actions were motivated by animus or

ill-will.” Loesel v Frankenmuth, 692 F3d 452, 462 (CA

6, 2012) (cleaned up). With respect to a claim based

on legislation, the Legislature need not have actually

articulated a particular rationale, and it is sufficient

if the Court can identify an interest that may have

reasonably been the rationale. TIG Ins Co, Inc v Dep’t

of Treasury, 464 Mich 548, 561- 562; 629 NW2d 402

(2001). “Rational-basis review does not test the

wisdom, need, or appropriateness of the legislation, or

whether the classification is made with mathematical

nicety, or even whether it results in some inequity

would presumably apply to all nonresidents who were charged

under similar factual circumstances.

when put into practice.” Crego, 463 Mich at 260

(cleaned up). Given this, there is a strong

presumption that the statute is constitutional. People

v Conat, 238 Mich App 134, 154; 605 NW2d 49 (1999).

Nonresidents Are Not Similarly Situated to

Residents. As explained, defendant argues that he

should be compared to Michigan residents who were

not identified as suspects for reported crimes within

the untolled limitations periods. Had defendant been

a resident, the limitations periods would not have

been tolled, the periods would have expired in 2006

and 2007, and he would have been immune from

prosecution. But because he was a nonresident, he

was extradited and charged with CSC-III. Defendant

contrasts this purportedly similarly situated group

with those persons (resident or not) who were

identified as suspects in reported crimes prior to the

expiration of the untolled limitations periods.

There is, however, a flaw in defendant’s

argument. The set of similarly situated persons must

be comparable to defendant in all material aspects.

On its face, the tolling provision applies to all persons

who commit a crime in Michigan and then no longer

reside usually and publicly in the state. MCL

767.24(8). Following this, the most natural

comparison set for defendant’s claim would be those

persons who do not usually and publicly reside here.

See, e.g., State v March, 395 SW3d 738, 788 (Tenn

Crim App, 2011) (“The tolling statute on its face

10A

applies equally to all persons who commit a crime in

this State and then depart.”).

Defendant disagrees and instead compares

himself to residents. Yet, with respect to a state’s

police power, there is a material distinction between

someone who resides within the state and someone

who does not. A state’s power to investigate and

prosecute a person is severely diminished when that

person does not reside within its borders. State and

local law enforcement resources are not infinite, and

such resources will often be insufficient to investigate,

question, or prosecute someone who resides in a

different state. See Burns v Lafler, 328 F Supp 2d 711,

721 (ED Mich, 2004). Choices need to be made about

how best to allocate finite law enforcement resources,

and rarely will those resources best be used pursuing

out-of-state persons. Moreover, as laboratories for

public policy, other states may not share Michigan’s

priorities with respect to criminal law, and a case that

is important in this state may receive less attention

from authorities in another state. See State v Sher,

149 Wis 2d 1, 14; 437 NW2d 878 (1989). For these and

other reasons, courts have held that residents and

nonresidents are not similarly situated for

equalprotection purposes. See, e.g., Burns, 328 F

Supp 2d at 721 (collecting cases).

The State Has an Interest in Discovering

Previously Unreported Crimes. Defendant rejoins that

his situation is factually distinguishable from Burns

and similar cases, because in each of those cases there

was at least a crime reported, if not a suspect

11A

identified, within the untolled limitations period.

According to defendant, the state has no legitimate

interest in tolling a limitations period for which there

has not been a crime reported or suspect identified.

As he sums up in his brief, “there was no ‘victim’ to

protect or for whom to seek justice because none had

come forward” and “the State has absolutely no

interest in distinguishing between residents and

nonresidents for purposes of a purely hypothetical

future claim.”

Defendant’s position is without support in law

or reason. With respect to law, nowhere in the statute

is there a requirement that “the party charged” has to

have been an actual suspect in an identified crime

prior to the expiration of the untolled limitations

period. The term “party charged” simply refers to the

party, here defendant, who was charged with a crime

to which the limitations and tolling provisions of MCL

767.24 apply. There is no qualification placed on the

“party charged” for the tolling provision to apply other

than that the party must not have “usually and

publicly reside[d] within this state.” We will not read

into the statute a term that the Legislature did not

put there. D’Agostini Land Co, LLC v Dep’t of

Treasury, 322 Mich App 545, 557; 912 NW2d 593

(2018).

Similarly, the authority that the trial court

relied upon for the proposition that, for the tolling

provision to apply, defendant must have been a

“suspect” or an “accused” prior to the expiration of the

12A

untolled limitations period, is inapposite. See Crear,

242 Mich App 158; People v McIntire, 232 Mich App

71; 591 NW2d 231 (1998), rev’d on other grounds 461

Mich 147 (1999); OAG, 1928-1930, p 582 (September

16, 1929). While these authorities do indeed use terms

such as “suspect” and “accused,” in none of these cases

was the court or attorney general faced with the

question presented here. It is clear that the terms

were used in those cases merely as generic

descriptions, not as specific limitations on who may

be subject to tolling while residing out of state.

With respect to reason, we point out the

obvious—an unreported crime is still a crime, and the

victim of an unreported crime is still a victim. There

may be any number of reasons why a crime is not

initially reported, including a victim’s age,

vulnerability, or fear, or the lack of corroborating

witnesses or physical evidence. The state certainly

has an interest in discovering previously unreported

crimes, as well as subsequently investigating and

prosecuting them. Cf. March, 395 SW3d at 787

(holding that “the State’s interest in detecting crime

and punishing offenders is compelling”) (emphasis

added); Sher, 149 Wis 2d at 16 (observing that the

“statute is substantially related to the state’s

interests in the detection of crimes, and the

identification and apprehension of criminals”)

(emphasis added); Scherling v Superior Court of

Santa Clara Co, 22 Cal 3d 493, 503; 585 P2d 219

(1978) (concluding that “the Legislature could have

determined that the detection of the crime and

13A

identification of the criminal are more likely if the

criminal remains in the state than if he departs”)

(emphasis added).

Moreover, it is certainly conceivable that an

unreported crime will more likely be discovered when

the guilty party resides within the state where the

crime occurred. A chance encounter between the

guilty party and the victim, a casual conversation

between the guilty party and someone with

knowledge of the victim or circumstances, or a

relatively minor traffic infraction leading to a

confession, are just several circumstances in which

residing in the same state where the crime occurred

could increase the chance of local law enforcement

discovering an unreported crime. Proximity often

leads to discovery.

Defendant is correct that a “purely

hypothetical” criminal act cannot serve as a rational

basis for distinguishing between residents and

nonresidents. Yet, the prosecutor’s case here does not

rest on a “purely hypothetical” claim. Rather, the

prosecutor presented sufficient evidence to establish

that there was probable cause to believe that

defendant sexually assaulted the complainant.

Whether the passage of time or delay in reporting

undermines the prosecutor’s case is a question for the

jury, not for this Court on appeal.

Finally, we do recognize that there is some

tension between applying the tolling provision in this

14A

case and the general interests served by a statute of

limitations. As explained by the federal Supreme

Court, “Such a limitation is designed to protect

individuals from having to defend themselves against

charges when the basic facts may have become

obscured by the passage of time and to minimize the

danger of official punishment because of acts in the

far-distant past.” Toussie v United States, 397 US

112, 114-115; 90 S Ct 858; 25 L Ed 2d 156 (1970). By

tolling the limitations period for nonresidents in cases

like this one, there is an increased risk that basic facts

might become obscured with the passage of time. Yet,

this is an increased risk faced in all situations

involving nonresidents. In the face of this risk, the

Legislature has seen fit to draw a distinction between

residents and nonresidents and, for the reasons set

forth earlier, it had a rational basis for doing so. As

there is no suggestion that the Legislature or

prosecutor was motivated by animus or ill-will,

defendant’s as-applied, “class of one” equal-protection

claim must fail.

III. CONCLUSION

The

Legislature distinguishes

between

Michigan residents and nonresidents for purposes of

tolling the statute of limitations for certain crimes.

There are rational grounds for doing so, including the

investigation, prosecution, and, indeed, the very

discovery of previously unreported crimes. Given this,

it is not a violation of defendant’s right to interstate

travel or equal protection to charge him with CSC-III

15A

related to alleged criminal conduct not reported until

after the untolled limitations periods had expired.

Accordingly, we reverse the trial court and remand for

further proceedings consistent with this opinion. We

do not retain jurisdiction.

/s/ Brock A. Swartzle

/s/ William B. Murphy

/s/ David H. Sawyer

16A

APPENDIX B

Order

Michigan Supreme Court Lansing, Michigan

July 2, 2019

Bridget M. McCormack,

158719

Chief Justice

David F. Viviano,

SC: 158719

Chief Justice Pro Tem

COA: 342504

Stephen J. Markman

Alpena CC: 15-006730-FH Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

JOEL HOWARD JAMES,

Defendant-Appellant.

_________________________________________/

On order of the Court, the application for leave to

appeal the October 11, 2018 judgment of the Court of

Appeals is considered, and it is DENIED, because we

are not persuaded that the question presented should

be reviewed by this Court.

I, Larry S. Royster, Clerk of the Michigan Supreme

Court, certify that the foregoing is a true and

complete copy of the order entered at the direction of

the Court.

July 2, 2019

Larry S. Royster, Clerk

17A

APPENDIX C

STATE OF MICHIGAN

IN THE 26th CIRCUIT COURT

FOR THE COUNTY OF ALPENA

PEOPLE OF THE STATE OF MICHIGAN

Plaintiff,

Circuit Court File No.: 15-006753-AP

Lower Court File No.: 15-0337-FY

JOEL HOWARD JAMES

Defendant.

______________________________________/

K. Edward Black (P64056)

Alpena County Prosecuting Attorney

719 W. Chisholm Street, Ste. 2

Alpena, MI 49707

(989) 354-9738

Daniel W. White (P27738)

White and Wojda

Attorneys for Defendant

313 North Second Avenue

Alpena, MI 49707

(989) 354-4104

_________________________________________/

OPINION AND ORDER

PRESENT: HON. MICHAEL G. MACK, CIRCUIT

COURT JUDGE

18A

This Court granted defendant’s interlocutory

application for leave to appeal. On September 4,

2015, oral argument was heard on the matter. The

sole issue placed under advisement was whether the

nonresident tolling provision of MCL 767.34(8)

produces an “absurd and unjust result.” The 88th

District Court held that it does not. For the reasons

provided herein, I affirm.

I. BACKGROUND

Defendant has been charged with criminal

sexual conduct that allegedly occurred in 1996. At

that time, he was a resident of Alaska and remained

so until being extradited. A ten-year statute of

limitations applies to the charges.

II. APPLICABLE STATUTE

Any period during which the party

charged did not usually and publically

reside within this state is not part of the

time within which the respective

indictments may be found and filed.

MCL 767.24(8).

III. STANDARD OF REVIEW

Questions of statutory construction are

reviewed de novo. People v Danto, 294 Mich App 596;

822 NW2d 600 (2011).

IV. ANALYSIS

Statutes that are plain and unambiguous are

to be applied as written, and are not open to judicial

interpretation.

However, a departure from an

unambiguous statute is permitted where a literal

19A

construction would produce an “absurd and unjust

result” inconsistent with the purposes and policies of

the act, People v Brewersdorf, 438 Mich 55; 475 NW2d

231 (1991). In this matter, the allegations did not

surface until 2012. Had defendant been a constant

resident of Michigan, the statute of limitations would

have expired. However, the limitations period was

tolled because he resided in Alaska. See MCL

768.24(8). Defendant now argues this produces an

“absurd and unjust result.”

At oral argument, defendant referred this

Court to the decision in People v Budnick, 197 Mich

App 21; 494 NW2d 778 (1992). In Budnick, the

defendant was charged with first degree criminal

sexual conduct. The act was alleged to have occurred

in October of 1975. The complainant was ten years

old at the time of the offense and reached her twentyfirst birthday on March 2, 1986. The defendant had

lived continuously in Wisconsin since 1978. He

moved to quash on the ground that prosecution was

barred by the statute of limitations.

Defendant’s reliance on Budnick is misplaced.

When Budnick was decided, the applicable statute of

limitations was MCL 767.24. The statute provided:

(1)…Except as otherwise provided in

subsection (2), all…indictments [other

than for certain offenses not at issue

here] shall be found and filed within 6

years after the commission of the

offense. However, any period during

which the party charged did not usually

20A

and publicly reside within this state

shall not be considered part of the time

within which the respective indictments

shall be found and filed.

(2) Notwithstanding subsection (1), if an

alleged victim was under 18 years of age

at the time of the commission of the

offense, an indictment for an offense

under section 145c or 520b to 520g of the

Michigan penal code, Act No. 328 of the

Public Acts of 1931, being sections

750.145c and 750.520b to 750.520g of the

Michigan Compiled Laws, may be found

and filed with 6 years after the

commission of the offense or by the

alleged victim’s twenty-first birthday,

whichever is later.

This Court held that the nonresident tolling

provision of subsection (1) had equal application to

the prosecution of offenses that fell within subsection

(2). Id. At 26. Therefore, if the defendant did not take

up residence in Michigan after 1978, the six-year

statute of limitations remained tolled. Id. At 27. This

holding, which is consistent with the intent of

legislature, does not support defendant’s current

position.

The prosecution has cited People v McIntire,

232 Mich App 71, 94; 591 NW2d 231 (1998), rev’d on

21A

other grounds, 461 Mich 147 (1999). 5 In McIntire, the

Court held that the limitations period could be tolled

even though the defendant was living openly in South

Carolina, it was easy for authorities to locate him, he

did not leave the state to avoid prosecution, and the

defendant’s absence did not prevent prosecutors from

going forward with the case. Id. at 98. The Court

concluded that applying the tolling provision under

such circumstances was what the Legislature

intended. Id. at 97-99. The Court also rejected the

views of other states where tolling provisions were

applied only when a suspect had absconded or was not

amenable to process. Id. at 100. Although the

defendant in McIntire may have been aware of a

possible

ongoing investigation,

the

present

circumstances are otherwise substantially similar.

Consequently, unless the defendant took up residence

in Michigan during the period in question, the statute

of limitations would be tolled. This does not create an

“absurd and unjust result.”

This court also acknowledges that factual

disputes involving MCL 767.24 should be submitted

to a jury. People v Artman, 218 Mich App 236; 553

NW2d 673 (1996). Here, defendant has presented

some evidence tending to show that he may have

resided in this state during the period in question. He

owns property in Lachine, Michigan; regularly visited

that property; and has maintained contacts in this

state. The question of whether this demonstrates

residence is for a jury to decide.

5 Although McIntire was reversed on other grounds, the Court’s

analysis regarding the statute of limitations has still been found

to be persuasive.

22A

For these reasons, in addition to the reasons

stated on the record, the district court is

AFFIRMED.

Dated: September 8, 2015

Hon. Michael G. Mack, Circuit Judge

I hereby certify that I served a copy of the foregoing

document upon all attorneys/parties of record.

Date: 9/8/15

Joan M. LaMarre

Clerk

23A

APPENDIX D

STATE OF MICHIGAN

IN THE 26th CIRCUIT COURT

FOR THE COUNTY OF ALPENA

PEOPLE OF THE STATE OF MICHIGAN

Plaintiff,

File No.: 15-006730-FH

JOEL HOWARD JAMES

Defendant.

______________________________________/

K. Edward Black (P64056)

Alpena County Prosecuting Attorney

719 W. Chisholm Street, Ste. 2

Alpena, MI 49707

(989) 354-9738

Daniel W. White (P27738)

White and Wojda

Attorneys for Defendant

313 North Second Avenue

Alpena, MI 49707

(989) 354-4104

_________________________________________/

OPINION AND ORDER

PRESENT: HON. MICHAEL G. MACK, CIRCUIT

COURT JUDGE

24A

Defendant Joel James is charged with thirddegree criminal sexual conduct which allegedly

occurred in 1996 and 1997. During the period in

question, the defendant owned property in Michigan

but was a continuous resident of Alaska. He now

moves to dismiss. According to defendant, the

nonresident tolling provision in MCL 767.24(10) 6 is

unconstitutional as applied to him because it

impermissibly infringes on his constitutional right to

equal protection.

I. Timeliness

The prosecution contends the present motion is

untimely for essentially raising a previously rejected

argument. The Court does not agree. While the

defendant used substantially similar verbiage in prior

motions, he now advances an entirely different

constitutional challenge, i.e., that MCL 767.24 is

unconstitutional as applied to the facts of this case.

As such, the Court cannot conclude that the motion is

untimely.

II. Equal Protection

Equal protection of the law is guaranteed by

the United States and Michigan constitutions. U.S.

Const, AM XIV; Const 1963. Both afford similar

protections and require that all persons similarly

situated be treated alike under the law. Doe v Dept of

Social Services, 439 Mich 650; 487 NW2d 166 (1992).

6 The Court notes that Public Act 2017, No. 79 (effective October

9, 2017) recently changed the nonresident tolling provision in

MCL 767.24 to subsection (10).

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While a facial challenge is extremely rigorous, an asapplied challenge is less stringent and requires a

court to analyze the constitutionality of the statute

against a backdrop of the facts developed in the

particular case. Kennan v Dawson, 275 Mich App

671, 680; 739 NW2d 681 (2007).

Defendant’s equal protection argument is

premised on a “class-of-one” theory. 7 The United

States Supreme Court and Michigan Supreme Court

have recognized that a class-of-one may advance an

equal protection claim where (1) an individual has

been intentionally treated differently from others

similarly situated, and (2) there is no rational basis

for the difference in treatment. Sioux City Bridge Co

v Dakota Co, 260 U.S. 441; 43 S Ct 190; 67 L Ed 340

(1923); Village of Willowbrook v Olech, 528 US 562,

564; 120 S Ct 1073; 145 L Ed 2d 1060 (2000);

Shepherd Montessori Ctr Milan v Ann Arbor Charter

Twp, 486 Mich 311; 783 NW2d 695 (2010). The Court

will address each factor in turn.

A. Similarly Situated

Courts have yet to define the extent to which

individuals must be similarly situated to others in

order to maintain a class-of-one claim. McDonald v

Village of Winnetka, 371 F3d 992, 1002 (7th Cir. 2004).

Federal appellate courts have held that to be

considered similarly situated, the challenger and his

comparators must be “prima facie identical in all

Although such claims are typically presented in civil

proceedings, they have also been pursued in criminal cases. See

United States v Green, 654 F3d 637, 651; (6th Cir. 2011).

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relevant respects or directly comparable…in all

material respects.” United States v Moore, 543 F3d

891, 899 (7th Cir. 2008); Lima Twp v Bateson, 302

Mich App 483, 503; 838 NW2d 898 (2013). This is

because equal protection ensures that people under

similar circumstances will be treated alike, but does

not require a person under different circumstances to

be treated the same. Yaldo v North Point Ins Co, 217

Mich App 617, 623; 552 NW2d 657 (1996).

Defendant asserts that he is similarly situated

to a resident charged under identical circumstances.

The Court agrees.

And under this scenario, a

resident would be entitled to dismissal pursuant to

the statute of limitations, while he is not. Therefore,

the issue becomes whether there is a rational basis for

this difference of treatment.

B. Rational Basis

Under the rational basis test, courts will not

overturn government action unless the varying

treatment is so unrelated to the achievement of any

combination of legitimate purposes that the court can

only conclude that the government’s actions were

irrational. Kimel v Fla Bd of Regents, 528 U.S. 62;

120 S Ct 631; 145 L Ed 2d 522 (2000). “A rational

basis shall be found to exist if any set of facts

reasonably can be conceived to justify the alleged

discrimination.”

Syntex Laboratories v Dept of

Treasury, 233 Mich App 286, 290; 590 NW2d 612

(1998).

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MCL 767.24(10) provides that the limitations

period is tolled for “any period during which the party

charged did not usually and publicly reside within

this state…” In interpreting this language, courts

have consistently held that nonresident tolling

“applies only in those situations where a suspect is no

longer a resident of this state.” People v Crear, 242

Mich App 158; 618 NW2d 91 (2000), overruled in part

on other grounds by People v Miller, 482 Mich 540;

759 NW2d 850 (2008) (emphasis added); see also

People v McIntire, 232 Mich App 71, 105; 591 NW2d

231 (1998), reversed on other grounds 461 Mich 147

(1999). These holdings corroborate a prior attorney

general opinion that determined the statute of

limitations will not run against an accused while not

usually and publicly residing within the state. Op

Atty Gen, 1928-1930, p 582. Logically, then, the

tolling provision advances a state interest in

permitting later prosecutions in cases where a

suspect or accused no longer resides in Michigan.

In comparison, it is undisputed that the

defendant was not a suspect until after the statute of

limitations had expired. This is because he was not

accused on any wrongdoing until 2012, and no

investigation commenced until that time. The Court

is aware of no case in Michigan jurisprudence where

nonresident tolling has been applied under such

circumstances. Rather, the tolling provision seems to

have only been applied in limited situations where a

suspect was a nonresident during the limitations

period. See People v Crear, 242 Mich App 158; 618

NW2d 91 (2000), overruled in part on other grounds

by People v Miller, 482 Mich 540; 759 NW2d 850

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(2008), People v McIntire, 232 Mich App 71, 105; 591

NW2d 231 (1998), reversed on other grounds 461

Mich 147 (1999); and People v Budnick, 197 Mich App

21; 494 NW2d 778 (1992); The Court sees no rational

basis for the tolling provision to be extended to this

case. 8

The Court is mindful that this is an

exceptionally limited, fact-driven circumstance

involving MCL 764.24(10). Nonetheless, defendant,

as a class-of-one, has sufficiently demonstrated that

the statute violates equal protection in this matter.

The motion to dismiss is GRANTED.

It Is So ORDERED.

Dated:1/18/18 Hon. Michael G. Mack, Circuit Judge

I hereby certify that I served a copy of the foregoing

document upon all attorneys/parties of record.

Date: 1/18/18

Clerk Vicki Hamilton

8 In so finding, the Court need not reach the question whether

MCL 767.24(10) infringes on defendant’s constitutional right to

travel.

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APPENDIX E

MCR 767.24

Indictment; crimes; "Theresa Flores's Law";

definitions; Brandon D'Annunzio's law; findings

and filing; exceptions for victims under 18;

extension or tolling.

Sec. 24.

(1) An indictment for any of the following crimes may

be found and filed at any time:

(a) Murder, conspiracy to commit murder, or

solicitation to commit murder, or criminal sexual

conduct in the first degree.

(b) A violation of chapter XXXIII of the Michigan

penal code, 1931 PA 328, MCL 750.200 to 750.212a,

that is punishable by imprisonment for life.

penal code, 1931 PA 328, MCL 750.462a to 750.462h,

that is punishable by imprisonment for life.

(d) A violation of the Michigan anti-terrorism act,

chapter LXXXIII-A of the Michigan penal code, 1931

PA 328, MCL 750.543a to 750.543z, that is

punishable by imprisonment for life.

(2) An indictment for a violation or attempted

violation of section 13, 462b, 462c, 462d, or 462e of the

Michigan penal code, 1931 PA 328, MCL 750.13,

750.462b, 750.462c, 750.462d, and 750.462e, may be

found and filed within 25 years after the offense is

committed. This subsection shall be known as

"Theresa Flores's Law".

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(3) Except as provided in subsection (4) for a

violation of section 520c or 520d of the Michigan penal

code, 1931 PA 328, MCL 750.520c and 750.520d, in

which the victim is under 18 years of age, an

indictment for a violation or attempted violation of

section 136, 136a, 145c, 520c, 520d, 520e, or 520g of

the Michigan penal code, 1931 PA 328, MCL 750.136,

750.136a, 750.145c, 750.520c, 750.520d, 750.520e,

and 750.520g, may be found and filed as follows:

(a) Except as otherwise provided in subdivision (b),

an indictment may be found and filed within 10 years

after the offense is committed or by the alleged

victim's twenty-first birthday, whichever is later.

(b) If evidence of the offense is obtained and that

evidence contains DNA that is determined to be from

an unidentified individual, an indictment against

that individual for the offense may be found and filed

at any time after the offense is committed. However,

after the individual is identified, the indictment may

be found and filed within 10 years after the individual

is identified or by the alleged victim's twenty-first

birthday, whichever is later.

(4) An indictment for a violation of section 520c or

520d of the Michigan penal code, 1931 PA 328, MCL

750.520c and 750.520d, in which the victim is under

18 years of age may be found and filed as follows:

(a) Except as otherwise provided in subdivision (b),

an indictment may be found and filed within 15 years

after the offense is committed or by the alleged

victim's twenty-eighth birthday, whichever is later.

(b) If evidence of the offense is obtained and that

evidence contains DNA that is determined to be from

an unidentified individual, an indictment against

that individual for the offense may be found and filed

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at any time after the offense is committed. However,

after the individual is identified, the indictment may

be found and filed within 15 years after the individual

is identified or by the alleged victim's twenty-eighth

birthday, whichever is later.

(5) As used in subsections (3) and (4):

(a) "DNA" means human deoxyribonucleic acid.

(b) "Identified" means the individual's legal name is

known and he or she has been determined to be the

source of the DNA.

(6) An indictment for kidnapping, extortion, assault

with intent to commit murder, attempted murder,

manslaughter, armed robbery, or first-degree home

invasion may be found and filed as follows:

(a) Except as otherwise provided in subdivision (b),

an indictment may be found and filed within 10 years

after the offense is committed.

(b) If the offense is reported to a police agency within

1 year after the offense is committed and the

individual who committed the offense is unknown, an

indictment for that offense may be found and filed

within 10 years after the individual is identified. This

subsection shall be known as Brandon D'Annunzio's

law. As used in this subsection, "identified" means the

individual's legal name is known.

(7) An indictment for identity theft or attempted

identity theft may be found and filed as follows:

(a) Except as otherwise provided in subdivision (b),

an indictment may be found and filed within 6 years

after the offense is committed.

(b) If evidence of the offense is obtained and the

individual who committed the offense has not been

identified, an indictment may be found and filed at

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any time after the offense is committed, but not more

than 6 years after the individual is identified.

(8) As used in subsection (7):

(a) "Identified" means the individual's legal name is

known.

(b) "Identity theft" means 1 or more of the following:

(i) Conduct prohibited in section 5 or 7 of the identity

theft protection act, 2004 PA 452, MCL 445.65 and

445.67.

(ii) Conduct prohibited under former section 285 of

the Michigan penal code, 1931 PA 328.

(9) An indictment for false pretenses involving real

property, forgery or uttering and publishing of an

instrument affecting an interest in real property, or

mortgage fraud may be found and filed within 10

years after the offense was committed or within 10

years after the instrument affecting real property was

recorded, whichever occurs later.

(10) All other indictments may be found and filed

within 6 years after the offense is committed.

(11) Any period during which the party charged did

not usually and publicly reside within this state is not

part of the time within which the respective

indictments may be found and filed.

(12) The extension or tolling, as applicable, of the

limitations period provided in this section applies to

any of those violations for which the limitations

period has not expired at the time the extension or

tolling takes effect.

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APPENDEX F

14TH AMENDMENT

UNITED STATES CONSTITUTION

Section 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they

reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the

several states according to their respective numbers,

counting the whole number of persons in each state,

excluding Indians not taxed. But when the right to

vote at any election for the choice of electors for

President and Vice President of the United States,

Representatives in Congress, the executive and

judicial officers of a state, or the members of the

legislature thereof, is denied to any of the male

inhabitants of such state, being twenty-one years of

age, and citizens of the United States, or in any way

abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall

be reduced in the proportion which the number of

such male citizens shall bear to the whole number of

male citizens twenty-one years of age in such state.

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Section 3.

No person shall be a Senator or Representative in

Congress, or elector of President and Vice President,

or hold any office, civil or military, under the United

States, or under any state, who, having previously

taken an oath, as a member of Congress, or as an

officer of the United States, or as a member of any

state legislature, or as an executive or judicial officer

of any state, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion

against the same, or given aid or comfort to the

enemies thereof. But Congress may by a vote of twothirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States,

authorized by law, including debts incurred for

payment of pensions and bounties for services in

suppressing insurrection or rebellion, shall not be

questioned. But neither the United States nor any

state shall assume or pay any debt or obligation

incurred in aid of insurrection or rebellion against the

United States, or any claim for the loss or

emancipation of any slave; but all such debts,

obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

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APPENDIX G

MICHIGAN MODEL CRIMINAL

JURY INSTRUCTIONS

1.8

M Crim JI 1.8 Reading of Information

(1) This is a criminal case. The paper used to charge

the defendant with a crime is called an information*.

The information in this case charges the defendant,

_______________________, with the crime of

_____________________________, and reads as follows:

[Read information.]

(2) The defendant has pled not guilty to this charge.

You should clearly understand that the information I

have just read is not evidence. An information is read

in every criminal trial so that the defendant and jury

can hear the charges. You must not think it is

evidence of [his / her] guilt or that [he / she] must be

guilty because [he / she] has been charged.

Use Note

*The judge should say “indictment” or “complaint”

where appropriate.

History

M Crim JI 1.8 (formerly CJI2d 1.8) was CJI 1:2:191:2:20; amended January, 1991.

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Reference Guide

Case Law

Tot v United States, 319 US 463 (1943).

1.9

M Crim JI 1.9 Presumption of Innocence, Burden of

Proof, and Reasonable Doubt

(1) A person accused of a crime is presumed to be

innocent. This means that you must start with the

presumption that the defendant is innocent. This

presumption continues throughout the trial and

entitles the defendant to a verdict of not guilty unless

you are satisfied beyond a reasonable doubt that [he /

she] is guilty.

(2) Every crime is made up of parts called elements.

The prosecutor must prove each element of the crime

beyond a reasonable doubt. The defendant is not

required to prove [his / her] innocence or to do

anything.* If you find that the prosecutor has not

proven every element beyond a reasonable doubt,

then you must find the defendant not guilty.

(3) A reasonable doubt is a fair, honest doubt growing

out of the evidence or lack of evidence. It is not merely

an imaginary or possible doubt, but a doubt based on

reason and common sense. A reasonable doubt is just

that a doubt that is reasonable, after a careful and

37A

considered

examination

circumstances of this case.

the

facts

and

Use Note

This instruction must be given in every case.

*For some affirmative defenses, a defendant must

produce evidence. The court should instruct the jury

on the defendant’s burden of production of evidence

where it is most appropriate to do so. The committee

recommends that this be done when the court

instructs on the nature and requirements of the

affirmative defense itself.

History

M Crim JI 1.9 (formerly CJI2d 1.9) was CJI 1:2:21

and 1:2:24. Amended November, 1990; January, 1992.

3.2(1)

M Crim JI 3.2 Presumption of Innocence, Burden of

Proof, and Reasonable Doubt

(1) A person accused of a crime is presumed to be

innocent. This means that you must start with the

presumption that the defendant is innocent. This

presumption continues throughout the trial and

entitles the defendant to a verdict of not guilty unless

you are satisfied beyond a reasonable doubt that [he /

she] is guilty.

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Use Note

This instruction must be given in every case.

*For some affirmative defenses, a defendant must

produce evidence. The court should instruct the jury

on the defendant’s burden of production of evidence

where it is most appropriate to do so. The committee

recommends this be done when the court instructs on

the nature and requirements of the affirmative

defense itself.

History

M Crim JI 3.2 (formerly CJI2d 3.2) was CJI 3:1:023:1:05. Amended November, 1990; January, 1992.

Reference Guide

Case Law

Victor v Nebraska, 511 US 1, 5 (1994); Martin v Ohio,

480 US 228 (1987); Sandstrom v Montana, 442 US

510, 517-524 (1979); County Court of Ulster County v

Allen, 442 US 140, 156-157 (1979); Kentucky v

Whorton, 441 US 786, 789 (1979); Taylor v Kentucky,

436 US 478, 487-488 (1978); In re Winship, 397 US

358, 364 (1970); Davis v United States, 160 US 469,

486-487 (1895); People v Allen, 466 Mich 86, 643

NW2d 227 (2002); People v Nowack, 462 Mich 392,

400, 614 NW2d 78 (2000); People v Konrad, 449 Mich

263, 273, 536 NW2d 517 (1995); People v Murphy, 416

Mich 453, 463-464, 331 NW2d 152 (1982); People v

Wright, 408 Mich 1, 19-26, 289 NW2d 1 (1980); People

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v Gallagher, 404 Mich 429, 437-439, 273 NW2d 440

(1979); People v D’Angelo, 401 Mich 167, 182-183, 257

NW2d 655 (1977); People v Bagwell, 295 Mich 412,

419, 295 NW 207 (1940); People v Williams, 208 Mich

586, 594-595, 175 NW 187 (1919); People v Ezzo, 104

Mich 341, 342-343, 62 NW 407 (1895); People v Potter,

89 Mich 353, 355, 50 NW 994 (1891); People v Macard,

73 Mich 15, 26, 40 NW 784 (1888); People v DeFore,

64 Mich 693, 701, 31 NW 585 (1887); People v

Steubenvoll, 62 Mich 329, 334, 28 NW 883 (1886);

People v Finley, 38 Mich 482, 483 (1878); Hamilton v

People, 29 Mich 173 (1874); People v Hill, 257 Mich

App 126, 667 NW2d 78 (2003); People v Snider, 239

Mich App 393, 420-421, 608 NW2d 502 (2000); People

v Cooper, 236 Mich App 643, 656, 601 NW2d 409

(1999); People v Hubbard (After Remand), 217 Mich

App 459, 487, 552 NW2d 493 (1996), overruled in part

on other grounds by People v Harris, 495 Mich 120,

___ NW2d ___ (2014) and People v Bryant, 491 Mich

575, 822 NW2d 124, cert denied, 133 S Ct 664 (2012);

People v Sammons, 191 Mich App 351, 372, 478 NW2d

901 (1991), cert denied, 505 US 1213 (1992); People v

Jackson, 167 Mich App 388, 390-391; 421 NW2d 697

(1988).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.