Glover v. Parole Bd., Docket No. 111221, Calendar No. 12.

CourtSupreme Court of Michigan
Citation596 N.W.2d 598,460 Mich. 511
Docket NumberDocket No. 111221, Calendar No. 12.
PartiesMary GLOVER, Petitioner-Appellee, v. MICHIGAN PAROLE BOARD, Respondent-Appellant.
Decision Date13 July 1999

Neal Bush and John F. Royal, Detroit, for plaintiff-appellee.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Chester S. Sugierski, Jr., Assistant Attorney General, Lansing, for defendant-appellant.

Barbara R. Levine, Lansing, Amicus Curiae, for Prisons and Corrections Section, State Bar of Michigan.

Jeanice Dagher-Margosian and Stuart G. Friedman, Detroit, Amicus Curiae, for American Civil Liberties Union Fund of Michigan and Criminal Defense Attorneys of Michigan.

Opinion

BRICKLEY, J.

We granted leave to appeal in this case to review the propriety of the Court of Appeals holdings that (1) an individual serving a parolable life sentence has a federal and state due process right to a written explanation of why parole was denied, and (2) the parole board is subject to the Open Meetings Act.1

Although we reverse the Court of Appeals holding regarding the due process and OMA questions, we affirm the remand to the parole board for a more detailed written explanation on the basis of M.C.L. § 791.235(12); MSA 28.2305(12).

Facts and Proceedings Below

On January 19, 1976, then twenty-one-year-old Mary Glover and her husband decided to steal some money from a gas station in Shiawasee County. While Ms. Glover's husband kept the attendant busy, Ms. Glover removed some money from a cash register. The Glovers were detained by gas station employees when the till was found to be open. Ms. Glover's husband slipped Ms. Glover a handgun he had and asked her to hide it. Ms. Glover hid the gun in the ladies' room toilet. A few minutes later, Ms. Glover's husband asked Ms. Glover to retrieve the gun so they could escape. Ms. Glover retrieved the gun and handed it to her husband. While attempting to escape apprehension, Ms. Glover's husband shot three people. One of the victims died immediately, and two others were seriously wounded. Ms. Glover was charged with one count of felony murder and two counts of assault with intent to commit murder. Pursuant to a plea bargain entered into after two days of trial, Ms. Glover pleaded guilty to one count of second-degree murder and two counts of assault with intent to commit murder.2 The trial court subsequently imposed three concurrent parolable life sentences.3

In 1994, i.e., after eighteen years of incarceration, the parole board voted to move Ms. Glover's request for parole to a public hearing. The successor judge4 declined to exercise his right under M.C.L. § 791.234(6)(b); MSA 28.2304(6)(b) to file a written objection and thereby bar the public hearing that must occur before a parole can be granted.

A public hearing was held on May 25, 1994. As the Court of Appeals stated:

Appellant's case might be described as a cause celebre. Her many supporters submitted letters[5] and gave testimony at the public hearing urging the Parole Board to grant parole. Their testimony established that appellant has put her talents and industry to extensive use while in prison. Appellant earned college degrees with high honors and received a prestigious literary award. She was active in social and religious programs for prisoners, and involved herself in a groundbreaking federal lawsuit that has enhanced opportunities for the female inmates of this state.[1]' However, relatives and friends of the victims, as well as community members, opposed parole[6] for various reasons, not the least being the tragic loss they had experienced as a result of appellant's acts.

1Glover v. Johnson, 721 F.Supp. 808 (E.D.Mich., 1989), aff'd, in pertinent part 934 F.2d 703 (C.A.6, 1991).

[226 Mich.App. 655, 657-658, 575 N.W.2d 772 (1997).]

At the conclusion of the hearing, the chairperson of the parole board stated in pertinent part:

I would be lying to any one of you if I said there's no way she is ever going to get out because we wouldn't be here if it wasn't close.... What will happen at this point in time is the Parole Board will have to weigh this.

On August 1, 1994, the parole board issued the following Notice of Action declining to grant parole:

After full consideration of the positions taken by those testifying at the public hearing and consideration of the adjustment, attitude and behavior of the prisoner, the parole board withdraws interest in proceeding toward parole at this time. You will next be interviewed by the parole board five years from your most recent interview as indicated in the official date above.

Ms. Glover sought judicial review of this denial with the circuit court, complaining that the parole board had not provided a sufficiently detailed statement explaining its decision to deny her parole, that the parole board had violated the OMA because the decision to deny parole was made without public notice, and that a recent statute7 changing the interval of a lifer's parole interview from every two years to every five years violated the Ex Post Facto Clauses of the federal and Michigan Constitutions.8 The circuit court rejected each of Ms. Glover's claims.

The Court of Appeals granted Ms. Glover's application for leave to appeal. The Court of Appeals found the parole board's explanation for denying parole inadequate, stating:

In the face of a mountain of information concerning appellant's correctional history, the Parole Board here abjured any meaningful explanation. It indicated that it considered all the information before it and decided to "withdraw" interest in or consideration of parole. In other words, thumbs down. The Attorney General suggested during oral argument before this panel that we should undertake the review process that led the Parole Board to its decision by examining all the exhibits, reading all the testimony, briefs, and records and deciding on that basis whether the board had abused its discretion. That is not a review; it invites instead a post facto justification of a decision that we are unqualified to make at the outset. The Parole Board did indicate a "reason code of 92," which refers to the "lifer law interview." We take that to mean that the Parole Board considered its job to conduct an interview of the appellant because it had to, declined to grant parole, and gave no reasons because it need not. We do not think that passes federal or state due process constitutional muster. [226 Mich.App. at 668-669, n. 3, 575 N.W.2d 772.]

The Court of Appeals held as follows: (1) no statute required the parole board to provide a written explanation for its decision to deny parole, (2) Ms. Glover nevertheless had a right under the federal and state Due Process Clauses to a written explanation of why she had been denied parole, (3) no ex post facto violation had occurred,9 and (4) the parole board had violated the OMA by making its final decision to deny parole without public notice. The Court remanded the case to the parole board so that it could provide a written explanation and retained jurisdiction, holding in abeyance consideration of the merits pending review of the board's written explanation. Id. at 670, 575 N.W.2d 772.10

We subsequently granted the parole board's application for leave to appeal.11

The Board's "Explanation"

The primary issue in this case is whether Ms. Glover is entitled to a written explanation of the reason the parole board denied her request for parole. Before considering that question, however, we first must determine whether Ms. Glover has already received an adequate explanation. If she has, there is no need to remand or reach the other questions in this case.

The record of the public hearing reveals that there was substantial support for Ms. Glover's request for parole. Numerous letters of support had been submitted. Testimony showed Ms. Glover's educational achievements, her involvement in religious activities while incarcerated, her participation in individual and group psychotherapy, and a psychological report indicating that she did not need further psychotherapy. Moreover, resident unit managers filed positive reports, Ms. Glover had a confirmed offer of employment, and one of the deceased victim's children testified in favor of granting Ms. Glover parole.

Notwithstanding the impressive presentation on behalf of Ms. Glover, the record of the public hearing also establishes that there was significant opposition to a grant of parole. There was testimony from the surviving victim and relatives of the victims, all of whom opposed parole, along with a number of community members expressing similar sentiments. A record was also established showing twenty-nine prison misconduct reports, numerous letters in opposition, and a petition signed by approximately 1,200 people who opposed, as a general matter, any parole for prisoners serving life sentences.

That this was a difficult decision was made clear when the chairperson of the parole board stated at the conclusion of the public hearing "we wouldn't be here if it wasn't close." The parole board, after exercising its discretion to grant or deny parole, was required, pursuant to M.C.L. § 791.234(8); MSA 28.2304(8),12 to provide a sufficient explanation for its decision, thereby allowing meaningful appellate review. The board failed, given the record herein, to provide such an explanation. It stated in its notice of action that it withdrew its interest in proceeding toward parole, citing only that it had considered "the positions taken by those testifying" and had considered the "adjustment, attitude and behavior of the prisoner...." We find that there is a lack of clarity regarding what about these factors compelled the board to act that caused the Court of Appeals to remand to the parole board for explication of its reason for denying parole. The Court of Appeals rightly decided that the board had "abjured any meaningful...

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