A statute from 1917 gave Michigan judges the power to investigate, subpoena, and arrest. It said nothing about issuing indictments. For more than a century, judges issued them anyway, and the reason the practice survived is that nobody with standing and resources ever made a court examine it.
MCL 767.3 and MCL 767.4 authorize a judge to investigate criminal offenses, subpoena witnesses, and issue arrest warrants. They do not authorize a judge to issue an indictment. Michigan judges issued them regardless, and the Michigan Supreme Court in 2022 described the charging power as an unchallenged assumption rather than a settled holding. The assumption survived a 1972 decision that would have limited its effect and a 2001 decision that removed the limit.
Is a one-person grand jury the same as a citizen grand jury?
No. A citizen grand jury under Michigan law is composed of thirteen to seventeen grand jurors and an indictment requires the concurrence of at least nine of them. A one-person grand jury is a single sitting judge. The statutes are different, the composition is different, and the Peeler court noted the historical lineage is different as well.
Why would a prosecutor choose this route?
The proceedings are closed, the evidence is not disclosed at the charging stage, and after Glass no preliminary examination followed. Committee testimony on the repeal bill indicated the mechanism was understood to be used mainly in sensitive felony matters.
Did courts ever address the indictment power directly before 2022?
Not squarely on the question Peeler answered. The Peeler court framed the issue as whether the statutes confer charging authority on a member of the judiciary, and treated it as a question of first impression in substance, describing the prior state of affairs as an assumption rather than a resolved holding.
How many people were charged this way?
Unknown. The Robinson court stated that the exact number of defendants subjected to the errors identified in Peeler is unknown, while noting the practice appears to have been used with some regularity over many decades in some courts.
What Interests Me About Dormant Rules
The thing I keep returning to in this story is not that Michigan judges exceeded their statutory authority for a century. It is that doing so was uncontroversial.
A rule that is openly violated tends to generate friction. Somebody objects, a court rules, and either the rule or the practice gives way. What happened here is different and stranger. The practice and the statute coexisted without contact. Lawyers read the statute, watched judges do something the statute did not describe, and drew the reasonable inference that the authority came from somewhere.
That inference is what the Supreme Court eventually called an unchallenged assumption, and the phrase is doing a great deal of work. An assumption is not a holding. It has no reasoning behind it that can be tested. It persists because nobody has occasion to look at it, and the longer it persists the more obviously settled it appears.
What the Statutes Say
The provisions now codified at MCL 767.3 and MCL 767.4 date to 1917 and were carried into the Code of Criminal Procedure enacted as 1927 PA 175. The Peeler opinion notes that the scheme quickly acquired its nickname.
The grant of authority is specific. A judge may inquire into criminal offenses, compel witnesses to appear and testify, and issue warrants for arrest. Those are investigative and coercive powers, and they are considerable.
What the statutes do not contain is any language authorizing a judge conducting such an inquiry to issue an indictment initiating a criminal prosecution. That absence is the whole case, and it sat there in the published statutes, readable by anyone, for one hundred and five years.
MCL 767.4 contains a provision that only makes sense if a hearing was contemplated. It refers to a hearing on the complaint or indictment, and disqualifies the judge who conducted the inquiry from serving as the examining magistrate at that hearing. A statute that bothers to specify who may not preside at a hearing is a statute that assumes the hearing will occur.
Duncan, 1972
The first significant judicial engagement with that language came in People v Duncan.
The underlying facts illustrate the mechanism in operation. In October 1970, Pat Duncan and fourteen others were arrested and charged with first-degree murder and conspiracy. A preliminary examination was adjourned over defense objection. Before it could be held, a Wayne County citizens grand jury issued an indictment charging the same crimes. The complaint and warrant were dismissed. No preliminary examination ever occurred. The defendants moved to quash the indictment or for a preliminary examination and were denied.
The Michigan Supreme Court held in 1972 that the defendants were entitled to a post-indictment preliminary examination. It described the preliminary examination as having become recognized as a fundamental right in most criminal cases, and exercised its inherent power to require one. In doing so it identified MCL 767.4 as a statute containing specific statutory language providing for a preliminary examination.
Duncan did not address whether a judge sitting alone could issue an indictment. But its practical effect was to make that question far less consequential, because whatever the charging instrument, the defendant would get a hearing at which the evidence had to be produced.
For twenty-nine years, the defect in the charging power was survivable because a hearing followed regardless. Duncan was not a ruling about the one-person grand jury. It was the thing that made the one-person grand jury tolerable, and almost nobody understood it that way at the time.
The Field Kit includes the Clutch Justice guides and templates for statutory research, docket retrieval, and building a documented chronology from primary legal sources.
Open the Field KitGlass, 2001
In People v Glass (After Remand), 464 Mich 266, the Michigan Supreme Court concluded that the Duncan court had erred.
The holding was that there is no federal constitutional, state constitutional, or statutory requirement for a preliminary examination on top of a grand jury indictment. Michigan law provides that criminal prosecutions may be initiated by either complaint and information or grand jury indictment, and there is no state constitutional right to indictment by grand jury. An information may not be filed until a defendant has had or waived a preliminary examination, but an indictee has no such right. The grand jury indictment was characterized as a procedural alternative to the preliminary examination.
Read on its own terms, Glass is a defensible piece of statutory reasoning. Two charging routes exist, each with its own screening step, and the court declined to graft the screening step of one route onto the other.
Read against the practice actually occurring in Michigan, it did something else. It removed the hearing from cases charged by a judge sitting alone behind closed doors, in reliance on the premise that such a judge was validly issuing an indictment in the first place. That premise was the unchallenged assumption.
| The mechanism, before and after 2001 | |
|---|---|
| Charging authority | Judge sitting alone under MCL 767.3 and 767.4, evidence considered in closed session |
| Statutory basis for indictment power | None identified in the statutes; treated as assumed |
| Before Duncan, to 1972 | No guaranteed post-indictment hearing |
| 1972 to 2001, under Duncan | Preliminary examination required, providing disclosure and cross-examination |
| 2001 to 2022, under Glass | No right to preliminary examination following indictment |
| After Peeler, 2022 | Judge may not issue the indictment; if the process begins with a one-man grand jury, the accused is entitled to a preliminary examination before trial |
Why It Took Until 2022
Three features of the arrangement explain its durability, and each is a mechanism in its own right.
Committee testimony on the repeal legislation indicated the mechanism was understood to be reserved largely for sensitive felony matters, and the Robinson court noted it was used with some regularity over many decades in some courts.
A device used narrowly generates few challenges, and the challenges it does generate come from defendants in the hardest cases.
The inquiry occurs behind closed doors and the material presented is restricted by statute. A defendant challenging the charging process is arguing about a proceeding they did not attend.
Examined further in Part V, which takes up MCL 767.4 and what cannot be seen.
A practice in continuous use since 1917 carries the appearance of settled law. Counsel evaluating whether to raise the issue must weigh a textual argument against a century of unbroken practice.
The absence of adverse precedent is read as support, when it is in fact an absence of examination.
Notice what the third factor does. The assumption’s own persistence became the strongest argument for its validity. That is the same structure documented in the forensic context, where a discipline’s repeated admission into evidence substituted for the validation research that had never been done. A practice that survives long enough stops being questioned, and the reason it stopped being questioned gets forgotten.
No mechanism existed by which the question could reach a court except through an individual defendant with counsel willing to litigate a novel statutory argument against a century of practice, in a case serious enough to have been routed through the one-person grand jury in the first place. That combination is rare by design, and it is the reason the argument did not prevail until three former state officials with substantial resources raised it on interlocutory appeal.
Why This Matters
There is a version of this installment that reads as a story about lawyers failing to notice something. I do not think that is right, and it matters for what follows.
The statutory argument that won in 2022 was available in 1972, in 2001, and every year in between. It did not win earlier because winning required a defendant charged through the mechanism, represented by counsel with the resources and appetite to litigate a novel question, in a posture allowing interlocutory review, before a court willing to disturb a century of practice.
Each of those conditions is itself a mechanism. Together they constitute a filter, and the filter had been running for a hundred and five years.
When it finally cleared, the people who cleared it were three former state officials in the most heavily resourced criminal defense effort in recent Michigan history. That is not a criticism of them. It is a description of what it took.
Part III takes up People v Peeler itself: what the court actually held, why the widespread description of the decision as a constitutional ruling is wrong, and what it means that a prosecution over lead-contaminated water in Flint ended without any determination of whether the allegations were true.
Continue Your Investigation
If this reporting raised more questions, use the Clutch Justice ecosystem to keep going.
