(CN) – A former Michigan state senator accused of shooting at his ex-wife’s car cannot be barred from seeking public office, a divided state appeals court ruled, clearing the way for him to run for a seat on the Detroit City Council this fall.
Virgil Smith had an altercation with his ex-wife on Mother’s Day 2015, during which he fired a gun at her car as she drove away after she reportedly entered his Detroit home and found him with another woman, according to a Southgate News-Herald report.
He was initially charged with felony assault, domestic violence, felony firearm possession and malicious destruction of personal property.
Smith, 37, took a plea agreement in February 2016. He agreed to a 10-month sentence for the property-destruction charge, with the other charges dismissed.
As part of the deal, Smith also agreed to resign his state senate seat and refrain from running for elected office for five years.
However, the trial court ruled at Smith’s sentencing hearing that the part of the plea deal pertaining to his senate seat and ban on running for office violated the separation of powers doctrine and infringed on the people’s right to choose their representatives.
The prosecutor moved to strike the entire plea deal, but the trial court denied the motion.
The state appealed, but the Michigan Court of Appeals upheld the decision Tuesday in an opinion written by Judge Deborah Servitto.
“The Michigan Constitution…expressly bars the executive branch of government, of which the prosecution is a member, from expelling members of the other two branches of government,” she wrote for the court’s 2-1 majority.
Servitto disagreed with the prosecution’s argument that Smith voluntarily resigned his seat.
“Such a view would serve to allow the prosecution, as a member of the executive branch, to do, indirectly, an act which it is specifically prohibited from doing directly,” she wrote.
The plea deal “violated the Michigan Constitution, which specifically sets out what crimes can disqualify an individual from seeking public office,” the judge added, noting that Smith was not convicted of any of those disqualifying crimes.
Servitto also found that Smith’s willingness to resign his seat and refrain from seeking public office is “entirely irrelevant to the issue presented here.”
“Defendant did not have the constitutional right to use his elected office as a bargaining chip, because the constitutional rights associated with his office were not for his individual benefit but for the benefit of the people who elected him,” she wrote.
In addition, Servitto upheld the trial court’s denial of the prosecutor’s motion to void the entire plea deal.
“If a prosecutor is aware in the future that using the threat of criminal charges against a member of the legislative branch will only be punished by allowing them to go back to the negotiating table after the courts discover their wrongdoing, there will be little impetus to stop the practice,” the ruling states.
Servitto was joined in the three-judge panel’s majority by Judge Michael J. Kelly.
Judge Michael Riordan wrote a dissenting opinion, saying the trial court abused its discretion by denying the prosecution’s request to vacate Smith’s plea deal.
“The majority draws upon a Pandora’s Box of imaginary issues which it hypothesizes could arise if we allow the defendant the freedom to choose to resolve the very real criminal charges he faces through plea negotiations,” he wrote.
Riordan added, “In turn, the majority rejects the notion that a public office holder should be afforded the same freedom of choice enjoyed by every other person in Michigan who is the subject of a criminal indictment or charges.”
According to local news reports, Wayne County Prosecutor Kym Worthy will appeal Tuesday’s decision.
Smith is running for a seat on the Detroit City Council. The election will be held Nov. 7.