Jordan v. Department of Corrections, Docket No. 91293

• Decision Date: 05 February 1988
• Docket Number: Docket No. 91293
• Citation: 418 N.W.2d 914,165 Mich.App. 20
• Parties: Ronald L. JORDAN, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee. 165 Mich.App. 20, 418 N.W.2d 914
• Court: Court of Appeal of Michigan — District of US

Page 914

418 N.W.2d 914

Ronald L. JORDAN, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

Docket No. 91293.

165 Mich.App. 20, 418 N.W.2d 914

Court of Appeals of Michigan.

Submitted June 25, 1987.

Decided Dec. 8, 1987.

Released for Publication Feb. 5, 1988.

[165 MICHAPP 21] Ronald C. Jordan, in pro. per.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Edgar L. Church, Asst. Atty. Gen., for Dept. of Corrections.

Before WAHLS, P.J., and MAHER and TERRANCE K. BOYLE, ^* JJ.

PER CURIAM.

Plaintiff, a state penal inmate, filed for declaratory relief, asserting that he was entitled[165 MICHAPP 22] to be given a reasonable quantity of postage stamps under the authority of an administrative rule. On February 1, 1983, Ingham Circuit Judge Jack W. Warren granted summary disposition to plaintiff. Defendant was subsequently granted relief from the order when it was shown that plaintiff was not indigent and therefore not entitled to free postage stamps under the language of a Department of Corrections policy directive. Plaintiff's motion for reconsideration was denied, and delayed application for leave to appeal to this Court was granted. We reverse the circuit court's grant of relief to defendant from the February 1, 1983, order on the basis that the relevant policy directive limiting free postage to inmates who are indigent is invalid because it is used by the Department of Corrections in lieu of a properly promulgated administrative rule and both affects the rights of the public and does more than merely explain the law.

I

Our review of the record in this case reveals that on February 24, 1981, plaintiff filed a complaint seeking a declaratory judgment against the Michigan Department of Corrections based on defendant's failure to provide plaintiff with "a reasonable quantity of postage," as required by 1979 AC, R 791.6603(2). Plaintiff also filed a motion to waive costs and fees, and an affidavit stating that he held only $18 in cash and no other assets. Plaintiff's motion for summary disposition was granted by Judge Warren, and plaintiff was declared entitled to a reasonable quantity of postage at no expense as of February 1, 1983, the date of the order. On November 27, 1985, plaintiff filed a motion for an order of contempt and order to show [165 MICHAPP 23] cause, alleging that, despite his requests, he had not received his ten-stamp per month allotment from June to September, 1985. He prayed for an award of four month's worth of postage allowance and $50 in costs, and that defendant be found in contempt of court.

In its answer filed in response to plaintiff's motion, defendant explained that plaintiff had not received his monthly allotment of ten stamps during the months in question due to plaintiff's intervening transfer from the Huron Valley Men's Facility in Ypsilanti to the Marquette Branch Prison in Marquette, and noted that the latter institution had been directed to credit plaintiff's account with $8.80, representing ten first-class postage stamps for each month from June through September, 1985. In addition, defendant filed a motion for relief from the February 1, 1983, order on the basis of the Michigan Department of Corrections policy directive providing that only prisoners who meet the department's definition of indigency must be given a maximum of ten first-class postage stamps per month for each month that the prisoner maintains indigency status. PD-BCF-63.03. Defendant attached to its motion a copy of an order entered on May 22, 1985, by Ingham Circuit Judge Thomas L. Brown denying plaintiff's request in a different case for copies of transcripts at public expense on the basis of indigency. According to Judge Brown's order, plaintiff reported having financial assets in excess of $1,750,000.

On January 2, 1986, Judge Warren denied plaintiff's motion for an order of contempt and order to show cause, but granted defendant's motion for relief from the February 1, 1983, order, finding that, based on Judge Brown's order, plaintiff was not indigent, and clarifying that "this Court never [165 MICHAPP 24] intended to order [that] postage stamps [be] given to a non-indigent inmate." Judge Warren, in granting relief from the order, specifically relied on PD-BCF-63.03, which was signed on May 13, 1983, by then director of the Michigan Department of Corrections Perry M. Johnson and which became effective on June 6, 1983. After plaintiff's motion for reconsideration was denied, we granted plaintiff's motions for delayed application for leave to appeal and for waiver of fees and costs.

II

Plaintiff argues on appeal that the circuit court erred in ruling that the administrative rule requiring free postage for prison inmates applies only to indigent prison inmates pursuant to a Michigan Department of Corrections policy directive. We agree.

The director of the Michigan Department of Corrections may promulgate rules pursuant to the Administrative Procedures Act, M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq.; M.C.L. Sec. 791.206; M.S.A. Sec. 28.2276. The department is an "agency" for purposes of the APA, and thus is subject to its provisions. Martin v. Dep't of Corrections, 424 Mich. 553, 556, 384 N.W.2d 392 (1986); M.C.L. Sec. 24.313; M.S.A. Sec. 3.560(213). Specified procedures must be followed when an agency subject to the APA adopts a rule. See, e.g., M.C.L. Sec. 24.241, 24.242; M.S.A. Secs. 3.560(141), 3.560(142). Substantial noncompliance with certain procedural requirements in the APA works to invalidate a rule. M.C.L. Sec. 24.243; M.S.A. Sec. 3.560(143). Proposed rules are subject to the approval of the Legislature. M.C.L. Sec. 24.245; M.S.A. Sec. 3.560(145). The relevant policy directive in this case was not issued in accordance with the procedural requirements in the APA. That policy directive provides, in pertinent part:

[165 MICHAPP 25] "Prisoners who meet the Department's definition of indigency, as defined by PD-BCF-20.03, shall be provided with a maximum of ten (10) postage-free first class letters (one ounce or less), or the equivalent, each month they have indigency status." PD-BCF-63.03.

In addition, an agency is prohibited from adopting a guideline or policy directive in lieu of a rule. M.C.L. Sec. 24.226; M.S.A. Sec. 3.560(126). Thus, the policy directive at issue in this case is valid only if it is not a rule within the meaning of the APA, which defines "rule" as follows:

" 'Rule' means an agency regulation, statement, standard, policy, ruling or instruction of general applicability, which implements or applies law enforced or administered by the agency, or which prescribes the organization, procedure or practice of the agency, including the amendment, suspension or rescission thereof, but does not include the following:

* * * "(g) An intergovernmental, interagency or intra-agency memorandum, directive or communication which does not affect the rights of, or procedures and practices available to, the public.

"(h) A form with instructions, an interpretive statement, a guideline, an informational pamphlet or other material which in itself does not have the force and effect of law but is merely explanatory." M.C.L. Sec. 24.207; M.S.A. Sec. 3.560(107).

Accordingly, if it can be shown that the policy directive allowing free postage allotments only to inmates who are indigent affects the rights of the public or constitutes more than a mere interpretive statement or explanatory guideline without the force and effect of law, then it is not in fact a policy directive but a rule which, because it should [165 MICHAPP 26] have been promulgated in accordance with the procedures set forth in the APA, is invalid.

A

In Schinzel v. Dep't of Corrections, 124 Mich.App. 217, 333 N.W.2d 519 (1983), this Court found invalid a policy directive of the Michigan Department of Corrections prohibiting inmates' receipt of postage stamps through the mail because "the policy directive directly affects and interferes with the rights and practices available to the [general] public," and therefore had to be promulgated as a rule in accordance with the procedures enunciated in the APA. Id., at p. 219, 333 N.W.2d 519. Specifically not addressed was the question whether prison inmates are members of the "public" under M.C.L. Sec. 24.207(g); M.S.A. Sec. 3.560(107)(g). Thereafter, panels of this Court disagreed on this issue. Cf. Kirkeby v. Dep't of Corrections, 141 Mich.App. 148, 366 N.W.2d 28 (1985) (inmates are not members of the public), with Martin v. Dep't of Corrections, 140 Mich.App. 323, 330, 364 N.W.2d 322 (1985), affd. 424 Mich. 553, 384 N.W.2d 392 (1986); Thompson v. Dep't of Corrections, 143 Mich.App. 29, 31, 371 N.W.2d 472 (1985), conflicts order den. 422 Mich. 1238, 372 N.W.2d 321 (1985) (inmates are members of the public.) In Martin, supra, 424 Mich. at p. 560, 384 N.W.2d 392, the Supreme Court agreed with the prevailing view in this Court that prison inmates are members of the public for purposes of M.C.L. Sec. 24.207(g); M.S.A. Sec. 3.560(107)(g). Thus, since prison inmates have a right to "a reasonable quantity of ... postage" at no expense, 1979 AC, R 791.6603(2), and since prison inmates are members of the public under the APA, Martin, supra, we reject the argument that the policy directive at issue in this case need not be promulgated as a rule under the exception found in M.C.L. Sec. 24.207(g); M.S.A. Sec. [165 MICHAPP 27] 3.560(107)(g), which excludes from the definition of the term "rule," among other things, any intra-agency directive not affecting the rights of the public.

B

We also find that the policy directive at issue in this case does not constitute an "interpretive statement" exempt from the rule promulgation requirements under M.C.L. Sec. 24.207(h); M.S.A. Sec. 3.560(107)(h).

A policy directive cannot be considered an "interpretive statement" of a rule if it is in fact inconsistent with the rule or contains provisions which go beyond...