Edmond v. Department of Corrections

• Citation: 116 Mich.App. 1,321 N.W.2d 817
• Decision Date: 21 July 1982
• Docket Number: 56020,Docket Nos. 52779
• Parties: Percy EDMOND, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee. Brenda S. LUTTRELL and Francis Garnica, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellant. 116 Mich.App. 1, 321 N.W.2d 817
• Court: Court of Appeal of Michigan — District of US

Page 817

321 N.W.2d 817

Percy EDMOND, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

Brenda S. LUTTRELL and Francis Garnica, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellant.

Docket Nos. 52779, 56020.

116 Mich.App. 1, 321 N.W.2d 817

Court of Appeals of Michigan.

Submitted Nov. 5, 1981.

Decided May 4, 1982.

Released for Publication July 21, 1982.

[116 MICHAPP 3] John W. Davis, Lansing, for Percy A. Edmond.

Martin Geer and William Burnham, Detroit, for Brenda S. Luttrell and Francis Garnica.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Thomas L. Casey, Asst. Atty. Gen., for defendant-appellee in No. 52779 and defendant-appellant in No. 56020.

Before BRONSON, P. J., and T. M. BURNS, and CORDEN, ^* JJ.

BRONSON, Presiding Judge.

This appeal is a consolidation of two lower court cases involving the Department of Corrections' authority to exclude "drug traffickers", as defined by the department, from consideration for eligibility in community placement programs. By M.C.L. Sec. 791.265a; M.S.A. Sec. 28.2325(1), the Legislature empowered the director of the Department of Corrections to create community placement programs for prisoners who, it is reasonably believed, would "honor his trust". The department adopted a rule, 1979 AC, R 791.4410, and a departmental policy directive which precluded even the consideration of so-called drug traffickers for community placement eligibility.

In Docket No. 52779, plaintiff Edmond petitioned the circuit court, seeking a permanent injunction enjoining the department from designating him as a "drug trafficker". The Ingham County Circuit Court found the designation "drug trafficker" to be neither arbitrary nor capricious and denied him any relief. He appeals as of right.

Plaintiffs Luttrell and Garnica in Docket No. [116 MICHAPP 4] 56020 brought a class action suit in the Ingham County Circuit Court asserting, among other things, that the Department of Corrections' blanket preclusion of consideration of "drug traffickers" from participation in community placement programs exceeded the department's statutory authority to promulgate rules pursuant to M.C.L. Sec. 791.265a(2); M.S.A. Sec. 28.2325(1)(2). The lower court agreed that the blanket exclusion violated the intent of the Legislature and was arbitrary and capricious. Defendant brings a delayed appeal on leave granted by order of this Court.

The fundamental issue for our resolution in this appeal is whether the Department of Corrections has exceeded its rule-making authority by precluding "drug traffickers", as it defines the term, from consideration for eligibility in community placement programs. In Chesapeake & Ohio R. Co. v. Public Service Comm., 59 Mich.App. 88, 98-99, 228 N.W.2d 843 (1975), lv. den. 394 Mich. 818 (1975), this Court formulated the following test to ascertain the validity of an administrative or departmental rule:

"Where an agency is empowered to make rules, courts employ a three-fold test to determine the validity of the rules it promulgates: (1) whether the rule is within the matter covered by the enabling statute; (2) if so, whether it complies with the underlying legislative intent; and (3) if it meets the first two requirements, when it is neither arbitrary nor capricious."

In the instant case, it is undisputed that the rule and policy directive is within the matter covered by the enabling statute. The gist of the dispute centers on whether the department's policy of blanket refusal to consider "drug traffickers" for community placement programs comports with the [116 MICHAPP 5] underlying legislative intent in enacting the statute.

Pursuant to M.C.L. Sec. 791.265a(2); M.S.A. Sec. 28.2325(1)(2), the Department of Corrections promulgated 1979 AC, R 791.4410, which provides as is pertinent:

"Rule 410. (1) A resident is eligible for consideration for community status when the head of the institution at which he or she is confined reasonably believes that the resident will honor this trust, that release would not undermine public confidence in the program, and that the resident meets all of the following criteria:

* * *

"(c) Has no involvement in organized crime, professional criminal activities, or narcotics traffic. Residents with histories of substance abuse are eligible so long as there is no history of involvement in narcotics traffic beyond personal use and limited sale to support the resident's own addiction."

Pursuant to this rule, the director of the department issued a policy directive defining "drug trafficker" (note, however, that the administrative rule actually refers to "narcotics" traffickers). The policy directive has been amended and in its present form defines "drug trafficker" as follows:

"a. A conviction for delivery or possession of a controlled substance that involved:

"1. 7 grams or more of any substance containing heroin or cocaine, or

"2. One pound or more of marijuana, or

"3. 100 units (pills, capsules, etc.) of any other controlled substance.

"b. That local law enforcement officials (police or prosecutor) confirm on the basis of reliable evidence that the individual is considered by them to be a significant trafficker in controlled substances in the community.

"c. Conviction for delivery or possession with intent [116 MICHAPP 6] to deliver controlled substances without any history of personal controlled substance use." ¹

The primary obligation of the courts in construing a statute is to ascertain and effectuate the intent of the Legislature. Melia v. Employment Security Comm., 346 Mich. 544, 562, 78 N.W.2d 273 (1956), Avon Twp. v. State Boundary Comm., 96 Mich.App. 736, 743, 293 N.W.2d 691 (1980). Applying accepted rules of statutory construction, we are unable to agree with the Department of Corrections that the legislation authorizing community placement evinces an intent to either: (a) exclude "drug traffickers" from consideration for participation in the program or (b) give the department unfettered discretion to consider or fail to consider any class of offenders it deems appropriate.

The Legislature has explicitly provided for the ineligibility of certain classes of prisoners from community placement as is evinced by M.C.L. Sec. [116 MICHAPP 7] 791.265a(5) and (6); M.S.A. Sec. 28.2325(1)(5) and (6), which provide:

"(5) Prisoners convicted of a crime of violence or any assaultive crime shall not be eligible for the releases provided in this section (1) until such time as the minimum sentence imposed for the crime has less than 180 days remaining, except that where the reason for the release is to visit a critically ill relative, attend the funeral of a relative, or obtain medical services not otherwise available, the director may allow the release under escort for a period not to exceed 30 days.

"(6) Prisoners serving a sentence for murder in the first degree shall not be eligible for the releases under this section prior to initiation of official processing for commutation, and in no case prior to service of 15 calendar years with a good institutional adjustment."

Given that the Legislature severely restricted eligibility for community placement for prisoners convicted of violent or assaultive crimes and first-degree murder, but imposed no comparable restrictions on "drug traffickers", it seems unlikely that the Legislature did intend the Department of Corrections' blanket preclusion. This conclusion is supported by the doctrine of expressio unius est exclusio alterius, that is, that the express mention in a statute of one group or class implies the exclusion of other unnamed groups or classes. See, People v. Lange, 105 Mich.App. 263, 266, 306 N.W.2d 514 (1981), and cases cited therein.

We further note that M.C.L. Sec. 791.265a; M.S.A. Sec. 28.2325(1) is based upon 18 U.S.C. Sec. 4082(c) and (d). The language used in the federal provision has been adopted virtually verbatim in M.C.L. Sec. 791.265a(1); M.S.A. Sec. 28.2325(1)(1). M.C.L. Sec. 791.265a(1)(a); M.S.A. Sec. 28.2325(1)(1)(a) is a near verbatim rendition of 18 U.S.C. Sec. 4082(c)(1). M.C.L. Sec. 791.265a(1)(b); M.S.A. Sec. 28.2325(1)(1)(b) is taken directly from the federal [116 MICHAPP 8] code, except the state provision excludes a proviso appearing in the federal statute. M.C.L. Sec. 791.265a(3); M.S.A. Sec. 28.2325(1)(3) is practically identical to 18 U.S.C. Sec. 4082(d), with certain cross-references to the federal code replaced by references to Michigan statutes.

Where a legislative body enacts a statute based upon the laws of another jurisdiction, it is assumed that the borrowing state's Legislature intended any judicial construction of the statute rendered in the other jurisdiction to the extent that the enactments are analogous. Detroit Fire Fighters Ass'n, Local 344, IAFF v. Detroit, 96 Mich.App. 543, 545, 294 N.W.2d 842 (1980). In construing a statute, legislative history may be considered to ascertain the legislative intent. Hutter v. Ingham County, 8 Mich.App. 719, 723, 155 N.W.2d 250 (1967). In the instant matter, there are no analogous federal decisions to rely on. The reason why this is so is that eligibility for community placement under the federal code contains no blanket preclusions by statute or rule. Even violent criminals may be considered for community placement under the federal code, although they must undergo an additional level of review before they may participate in the program. See, 28 CFR Sec. 570.16 (1981), and the official comment to the rule, 45 Fed Reg 75127, 75132 (1980). Michigan compiles no legislative histories as such. However, given the similarities between the Michigan and federal statutes, it is fair to consider the federal legislative history in determining what the Michigan Legislature envisioned by enactment of M.C.L. Sec. 791.265a; M.S.A. Sec. 28.2325(1).

In 1973, the federal code was amended to provide for...