STATE OF MICIDGAN

IN THE 7TH JUDICIAL CIRCUIT COURT FOR THE COUNTY OF GENESEE

PEOPLE OF TIIE STATE OF :MfCHIGAN,

Plaintiff, Case No. 21-047372-FH (Agen)

21-047373-FH (Ambrose)
21-047374-FH (Ambrose)
V 21-047375-FH (Baird)
21-047376-FH (Earley)
-21-047378-FH (Lyon)
JARRODAGEN 21-047379-FH (Peeler)
GERALD AMBROSE 21-047380-FH (Wells)
RICHARD BAIRD
DARNELL EARLEY
NICOLAS LYON
NANCY PEELER
EDEN WELLS, HON. ELIZABETH A. KELLY

Defendants.
_ _ __ _ _ _ _ _ _ __ _ __ __ _ _ __ _ _ _ _ __ _!

ORDER GRANTING DISMISSAL OF FELONY FLINT WATER CASES

At a session of said Court held at the Courthouse

In the City of Flint, County of Genesee, State ofMichigan
Tuesday, October 04, 2022:

PRESENT: THE HONORABLE ELIZABETH A. KELLY

I. INTRODUCTION

Jarrod Agen, Gerald Ambrose, Richard Baird, Darnell Earley, Nicolas Lyon, Nancy Peeler,

and Eden Wells (hereinafter "Defendants") are before this Court on felony cases surrounding the

Flint Water Crises. On June 16, 2021, this Court denied motions to dismiss filed by Nancy Peeler

and Richard Baird. Likewise on February 16, 2022, this Court denied a motion to dismiss filed by

Nicolas Lyon. Subsequently, the Michigan Court of Appeals denied Defendants' applications for

ATRUECOPY I

Genesee County Clerk

leave to appeal. On June 28, 2022, the Michigan Supreme Court held that Defendants are entitled

to a preliminary examination and reversed this Courts denial of their motions to dismiss and

remanded their cases to this Court for further proceedings consistent with their decision.

Following remand from the Michigan Supreme Court, on July 1, 2022, the People filed a

"Motion to Remand or Transfer to the District Court to Proceed as Upon Formal Complaint." On

July 25, 2022, Nicolas Lyon filed a response to the People's motion. Likewise, Eden Wells, Gerald

Ambrose, Nancy Peeler, and Darnell Earley subsequently filed responses in opposition of the

People's motion.

Per the Michigan Supreme Court's decision, one-person grand juries have the power to

investigate, subpoena witnesses, and issue arrest warrants, but are not authorized to issue

indictments. As a result, the Michigan Supreme Court issued an opinion both reversing this Court's

orders denying Defendants' earlier motions to remand for preliminary examination and motions

to dismiss the indictments. The Court then remanded the cases to this Court "for further

proceedings consistent with this opinion." People v Peeler, No 163667, 2022 WL 2335397 (Mich

Sup Ct Jun 28, 2022). In other words, the Michigan Supreme Court ordered this Court to remand

the Flint Water Cases for preliminary examination and to simultaneously dismiss the same cases.

Since these commands are incompatible, this Court must interpret the true meaning and intent of

the Michigan Supreme Court's opinion and decide whether the felony Flint Water Cases should

be remanded for preliminary examination or dismissed in their entirety.

II. THE MICIDGAN SUPREME COURT OPINION'

In Peeler, the Michigan Supreme Court held that defendants charged by a one-person grand

jury have the right to a preliminary examination. Peeler, slip op at 10. In doing so, the Court stated,

"the judge should treat the one-man-grand-jury-charged case the same as a case in which a formal

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complaint has been filed." Id at 8. In other words, when an individual is charged by a one-person

grand jury, "an arrest warrant is issued, the accused is apprehended, and the court holds a

preliminary examination." Id ''Thus, for a case to proceed 'in like manner as upon formal

complaint,' MCL 767.4, a preliminary examination must be held unless waived by the defendant."

Id. Ultimately, the Court held that this Court "erred by denying Peeler's and Baird's motions to

remand for a preliminary examination" and reversed this Court's orders denying those motions.

Id. at 10.

Next, the Michigan Supreme Court held that MCL 767.3 and 767.4 do not authorize the

one-person grand jury the power to issue indictments. Id. at 15. More specifically, the Court stated,

"MCL 767.3 and MCL 767.4 authorize a judge to investigate, subpoena witnesses and issue

warrants. But they do not authorize the judge to issue indictments." Id. Likewise, the Court

concluded, "MCL 767.4 does not authorize a judge to issue an indictment initiating a criminal

prosecution." Id.

III. ANALYSIS

It is undisputed that the scope of this Court's duty 01:1 remand is ''to comply strictly with

the mandate of the.appellate court according to its true intent and meaning." People v Blue, 178

Mich App 537, 539 (1989). In other words, this Court is bound by the Michigan Supreme Court's

decision as a matter of law. See People v Mitchell 428 Mich 364 (1987). Essentially, here, the

People and Defendants disagree on true meaning and intent of the Michigan Supreme Court's

opinion. More specifically, the Michigan Supreme Court ordered this Court to remand the felony

Flint Water Cases for both preliminary examination and dismissal. As such, this Court mµst decide

whether the cases should be remanded for preliminary examination or dismissed in their entirety.

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 A. THE INDICTMENTS ARE VomA.B INl110

As mentioned above, in Peeler:, the Michigan Supreme Court held that MCL 767.3 and

767.4 do not authorize the one-person grand jury the power to issue indictments. Peeler, slip op at

15. The Court explained, "MCL 767.3 and MCL 767.4 authorize a judge to investigate, subpoena

witnesses and issue warrants. But they do not authorize the judge to issue indictments/' Id. To

support this conclusion, the Court stated:

It seems that the power of a judge conducting an inquiry to issue an indictment was
simply an unchallenged assumption until now .... For these reasons, we conclude
MCL 767.4 does not authorize an indictment instituting a prosecution. The trial
court therefore erred by denying Lyon's motion to dismiss.

Id. at 15. To summarize, the Court concluded, "MCL 767.4 does not authorize a judge to issue an

indictment initiating a criminal prosecution." Id. at 15

As earlier stated, this Court is bound by the Michigan Supreme Court's decision in Peeler.

Because the one-person grand jury does not ~ve the power to issue indictments, the indictments

issued in . Flint Water Cases were void ab initio. Therefore, anything arising out of the
. the felony
invalid indictments are irreconcilably tainted from inception.

B. DEFENDANTS HAVF. A RIGHT TO PRELIMINARY EXAMINATION WHEN CHARGED

BY COM-PLAINT OR TRADITIONAL GRAND JL'RY INDICTMENT

The Michigan Supreme Court held that MCL 767 .4 ''provides a right to a preliminary

examination." Id at 7. The Court stated, "the judge should treat the one-man-grand-jury-charged

case the same as a case in which a formal complaint has been filed." Id. at 8. After the one-person

grand jury finishes their investigation and makes their charging recommendation, the case must

proceed in like manner as upon a fonnal complaint. The Court outlined the proper charging process

by stating:

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 [A] formal complaint is filed, an arrest warrant is issued, the accused is
apprehended, and the court holds a preliminary examination before an information
may issue. See MCL 764.la(l) ("A magistrate shall issue a warrant or summons
upon presentation of a proper complaint alleging the commission of an offense and
a finding of reasonable cause to believe that the individual accused in the complaint
committed that offense. The complaint must be sworn to before a magistrate or
clerk."); MCL 767.42(1) ("An information shall not be filed against any person for
a felony until such person has had a preliminary examination therefor, as provided
by law, before an examining magistrate, unless that person waives his statutory
right to an examination."). Thus, for a case to proceed "in like manner as upon
formal complaint," MCL 767.4, a preliminary examination must be held unless
waived by the defendant, MCL 767.42(1).

Id. Likewise, when discussing the history of the one-person grand jury, the Court looked to

committee reports regarding the one-person grand jury. See Committee Reports (Special

Committee to Study and Report Upon the One-Man Grand Jury Law) (Hereinafter Committee

Reports), 26 Mich St BJ 11, 59 (1947). Notably, the pertinent Committee Reports indicated:

Before there can be a trial there. must be an accusation, and in Michigan this may
come in either of the following three ways: a. An Indictment voted by a 23-Man
Grand Jury; or b. A complaint and warrant issued in the customary way by a justice
of the peace or other magistrate; or c. A complaint and warrant issued by a 'One-
Man Grand Juror.

Id. (emphasis added). In other words, when charged by one-person grand jury, a valid complaint

or traditional grand jury indictment must issue. After the issuance of a valid complaint or

indictment, an arrest warrant is issued, the accused is apprehended, and then a preliminary

examination is held.

Here, the Defendants were not charge by complaint or by a traditional grand jury

indictment. Instead, the one-person issued an invalid indictment, which was the basis for the

issuance of an arrest warrant. Therefore, the charging process was invalid from its inception and

issuance of an arrest warrant following an invalid indictment is irrelevant to our consideration.

Since the charging procedure in this matter was invalid, remand for preliminary examination

would be improper. Simply put, there are no valid charges to remand for preliminary examination.

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Therefore, this Court must dismiss the charges against Defendants. If the People seek future

charges against Defendants. they must follow one of the proper charging procedures outline by the

Supreme Court.

IV. STATUTE OF LIMITATIONS

Defendants also assert that certain future charges would be barred from prosecution

because of the statute of limitations outlined in the applicable criminal statutes. As such,

Defendants seek a determination from this Court that the People may not bring certain future

charges against Defendants. More specifically, Defendants seek dismissal with prejudice. This

Court holds that any determination and/or review of the statute oflimitations is premature because

Defendants' request is anticipating future charges, which may or may not be brought by the People.

Therefore, ·this Court reserves its ruling on the statute oflimitation for when, if at all, future charges

are brought against Defendants. Thus, this Court does not find that dismissal with prejudice is

proper.

V. CONCLUSION

The indictments issued against Defendants are invalid and the charging process was void

ab initio. As a result, this Court must DISMISS the felony .Flint Water Cases.

NOW THEREFORE, IT IS SO ORDERED: For the reasons stated above, the above•

captioned cases are dismissed without prejudice.

Dated: 10 l"1. 1U,'Z'Z..

ELIZ ETH A. KELLY {
7th Circuit Court Judge

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