Special probation condition; MCL 771.3(3); Review of constitutional challenges to probation conditions; Special scrutiny; Restriction on contact with spouse; Freedom of association & privacy of the spousal relationship; Plain error review; Mootness; Exception for issues of public significance likely to recur yet evade judicial review; Adult Recovery Court (ARC)

Applying special scrutiny review to defendant’s constitutional challenges to a probation condition prohibiting contact with her spouse, the court held that she failed to show the trial court plainly erred in imposing and enforcing the condition under the circumstances. Thus, it affirmed the order sentencing her to 12 months in jail after violating the terms of her probation. The court first found that, because she had been discharged from her sentence, her challenge was moot, but the exception for issues of public significance likely to recur yet evade judicial review applied. Further, because the issue was not preserved, plain error review applied. The court held “that when a probation condition implicates a defendant’s constitutional rights, a court must apply special scrutiny to ensure that the condition is reasonably related to the rehabilitation of the defendant and narrowly tailored to avoid unnecessary interference with the constitutional right at issue.” It applied such scrutiny here, where defendant challenged the “condition as an unconstitutional infringement upon her freedom of association and the privacy of her spousal relationship.” Given that the record reflected that her “husband was determined to be the reason why defendant did not comply with her mandated ARC programming requirements, a graduated escalation of restrictions imposed on [her] contact with him was both reasonably related to [her] rehabilitation and narrowly tailored to avoid unnecessary interference with her constitutional rights. The first prong—the reasonable relationship requirement—is satisfied.” The husband had prior convictions for meth possession “and tampering with a monitoring device, and defendant’s probation violations similarly involved relapsed meth[] use and, while spending time with [him], tether violations. [Her] violations of the ARC program’s tether requirements, in turn, undermined her rehabilitation, as the program was” imposed to help steer her away from continued drug involvement. “Thus, there was a reasonable relationship between the no-contact restriction and defendant’s rehabilitation.” The court also found that the second prong was satisfied. The no-contact “condition was evidently an adapted, final attempt to assist defendant in successfully completing the ARC program, imposed only when it was deemed necessary to interfere so significantly in [her] marriage.”