Kirkeby v. Department of Corrections, Docket No. 76736
| Decision Date | 01 May 1985 |
| Docket Number | Docket No. 76736 |
| Citation | 141 Mich.App. 148,366 N.W.2d 28 |
| Parties | Arthur KIRKEBY, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Respondent-Appellee. 141 Mich.App. 148, 366 N.W.2d 28 |
| Court | Court of Appeal of Michigan — District of US |
[141 MICHAPP 149] Arthur Kirkeby, Jackson, in pro. per.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Edgar L. Church, Jr., Asst. Atty. Gen., for respondent-appellee.
Before CYNAR, P.J., and KELLY and R.L. EVANS, * JJ.
Petitioner appeals as of right from an order by the circuit court which affirmed a Department of Corrections hearing officer's finding of a major misconduct violation.
Petitioner is an inmate at the State Prison of Southern Michigan. On September 27, 1983, he was issued a major misconduct violation after a container of dried bleach was found in his cell. Petitioner brought a petition for judicial review of the final administrative decision in accordance with M.C.L. Sec. 24.301 et seq.; M.S.A. Sec. 3.560(201) et seq. The circuit court dismissed his petition based in part on lack of jurisdiction.
Petitioner's position is that the directive under which he was charged with misconduct was not promulgated in conformity with the Administrative Procedures Act (APA), M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. We disagree. Not all prison disciplinary directives are subject to the rule-making provisions of the APA. Excluded from the APA are:
"An intergovernmental, interagency or intra-agency memorandum, directive or communication which does [141 MICHAPP 150] not affect the rights of, or procedures and practices available to, the public." M.C.L. Sec. 24.207(g); M.S.A. Sec. 3.560(107)(g).
In Schinzel v. Dep't of Corrections, 124 Mich.App. 217, 333 N.W.2d 519 (1983), this Court noted that where a policy directive affected the rights of the public, the policy directive in question was required to comply with the APA. Petitioner's case is different than Schinzel. The prison directive in question affects only persons under the jurisdiction of the Department of Corrections. It does not affect members of the general public as the directive at issue in Schinzel did. Because the directive in question does not affect the rights of the public as suggested by the tenor of M.C.L. Sec. 24.207(g); M.S.A. Sec. 3.560(107)(g), the directive is not subject to the APA. Intra-agency directives need not...
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Martin v. Department of Corrections
...counsel at oral argument stated that plaintiff was disciplined for possession of one marijuana "joint."2 In Kirkeby v. Dep't of Corrections, 141 Mich.App. 148, 366 N.W.2d 28 (1985), another panel of the Court of Appeals reached the opposite conclusion. Pursuant to Administrative Order No. 1......
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Jordan v. Department of Corrections, Docket No. 91293
...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 ......
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Collins v. Department of Corrections
...prisoners were members of the general public. Another panel of this Court reached the opposite conclusion in Kirkeby v. Dep't of Corrections, 141 Mich.App. 148, 366 N.W.2d 28 (1985). ...
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Jensen v. Little
...Adjustment Committee is not governed by the provisions of the Administrative Agencies Practice Act]. Cf. Kirkeby v. Dept. of Corrections, 141 Mich.App. 148, 366 N.W.2d 28 (1985) [prison disciplinary directives which do not affect members of the general public are not subject to the Administ......