Martin v. Department of Corrections, Docket No. 71040

• Citation: 140 Mich.App. 323,364 N.W.2d 322
• Decision Date: 01 May 1985
• Docket Number: Docket No. 71040
• Parties: Morris MARTIN, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee. 140 Mich.App. 323, 364 N.W.2d 322
• Court: Court of Appeal of Michigan (US)

Page 322

364 N.W.2d 322

Morris MARTIN, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

Docket No. 71040.

140 Mich.App. 323, 364 N.W.2d 322

Court of Appeals of Michigan.

Submitted Feb. 16, 1984.

Decided Jan. 23, 1985.

Released for Publication April 1, 1985.

Leave to Appeal Granted May 1, 1985.

[140 MICHAPP 324] Morris Martin, in pro per.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and J. Peter Lark, Asst. Atty. Gen., Corrections Div., Criminal Appeals Section, for defendant-appellee.

Before DANHOF, C.J., and HOOD and SHEPHERD, JJ.

PER CURIAM.

Plaintiff, in pro per, appeals as of right from the circuit court order which granted defendant's motion for summary judgment.

[140 MICHAPP 325] Plaintiff is an inmate of the State Prison of Southern Michigan. He filed this action with a complaint for declaratory judgment. Apparently, defendant disciplined plaintiff for "substance abuse", an offense defined as a major misconduct in defendant's Policy Directive 60.01. That directive sets out the guidelines and procedures to be used by defendant for disciplinary actions within Michigan's prisons. Plaintiff alleged that defendant failed to promulgate directive 60.01 as a rule pursuant to the Administrative Procedures Act (APA), M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq.

Both parties filed motions for summary judgment. Plaintiff argued that Policy Directive 60.01 is a "rule" as defined by the APA but was not properly promulgated as such. Defendant argued that Policy Directive 60.01 need not be promulgated pursuant to the APA because it is not a "rule" as defined in the APA. Defendant argues that state agencies need not promulgate rules if they do not affect the public, M.C.L. Sec. 24.207(g); M.S.A. Sec. 3.560(107)(g), and prison inmates are not members of the public.

In a short opinion and order, the trial court agreed with defendant that prisoners in defendant's custody were not members of the general public. Therefore, the court found that the major misconduct violations found in defendant's policy directive need not be promulgated in accord with the APA. We disagree and reverse.

By statute, defendant's director shall promulgate rules pursuant to the APA which shall provide for the management and control of state penal institutions. M.C.L. Sec. 791.206; M.S.A. Sec. 28.2276. A "rule" is defined in the APA as follows:

" 'Rule' means an agency regulation, statement, standard, policy, ruling or instruction of general applicability,[140 MICHAPP 326] 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 intraagency memorandum, directive or communication which does not affect the rights of, or procedures and practices available to, the public." M.C.L. Sec. 24.207; M.S.A. Sec. 3.560(107).

The defendant has indeed heeded the above statutory mandates by promulgating some general rules pursuant to the APA which do affect only inmates. See 1979 AC, R 791.5501--R 791.5515. Rule 501(2) defines a major misconduct:

"(2) A resident alleged to have committed the following behavior shall be charged with major misconduct:

"(a) Escape or attempt to escape.

"(b) Behavior that constitutes a felony under state or federal law.

"(c) Serious insubordination as defined in resident guide book.

"(d) Assault or threat of violence.

"(e) Repeated rule violations as defined in resident guide book.

"(f) A violation of rules that clearly jeopardizes facility security or safety as defined in resident guide book."

"Substance abuse", without further definition, is not included as a major misconduct in the above rule.

Plaintiff relies upon Schinzel v. Marquette Prison Warden (Schinzel II), 123 Mich.App. 763, 333 N.W.2d 348 (1983), modified in part and lv. den. 419 Mich. 865, 348 N.W.2d 5 (1984). In Schinzel II, the plaintiff inmate alleged that the defendant failed to allow him, as promised, to take all his property and papers when he was transferred to another [140 MICHAPP 327] prison facility. Defendant's policy directive allowed a prisoner to take only one duffel bag and one foot locker when the prisoner was transferred. Plaintiff argued, as here, that the policy directive was not properly promulgated as a rule in accordance with the APA. This Court said:

"[W]e find merit in plaintiff's claim that the circuit court erroneously relied upon the Department of Corrections policy directive. The policy directive was not promulgated as a rule within the meaning of the Administrative Procedures Act as defined in MCL 24.207; MSA 3.560(107), or that of a properly adopted guideline pursuant to MCL 24.224; MSA 3.560(124). The trial court erred in relying upon the policy directive as a departmental rule when it has not been officially adopted as a rule or even a guideline.

According to MCL 791.206; MSA 28.2276, the director of the Department of Corrections, with the approval of the commission, 'shall promulgate rules and regulations' to provide 'for the management and control of state penal institutions'. Because the policy directive was not properly promulgated pursuant to the Administrative Procedures Act, it is without legal authority.' Schinzel II, p. 765, 333 N.W.2d 348.

This Court then stated that, in the absence of a validity promulgated rule prohibiting plaintiff from taking all his property, plaintiff was entitled to take the property when transferred. On appeal to the Supreme Court, the Court said:

"[I]n lieu of grant of leave to appeal, the judgment of the Court of Appeals is modified in the following respect: on an appeal from summary judgment it was error for the Court of Appeals to state 'plaintiff is entitled to take all of his legal materials with him when he is transferred from one prison to another.' A determination that defendant could not rely upon an informal policy directive as a defense, if correct, does not resolve whether plaintiff has stated a cause of action [140 MICHAPP 328] requiring a transfer of the property. The question whether plaintiff is entitled to relief remains open. In all other respects leave to appeal is denied." 419 Mich. 865, 348 N.W.2d 5.

Despite the rule in Schinzel II, supra, stating that defendant's policy directive was a rule within the meaning of the APA, defendant argues that the issue remains open. Defendant relies upon Schinzel v. Dep't of Corrections (Schinzel I ), 124 Mich.App. 217, 333 N.W.2d 519 (1983). In that case, the same panel that decided Schinzel II was faced with a similar issue. Defendant, by intra-agency memorandum, prohibited inmates from receiving postage stamps sent to them through the mail. In Schinzel I, as here, defendant argued that APA Sec. 7(g) excepted the promulgation of its directive as a rule. This Court said:

"Defendants argue that the policy directive restricting the inmates' receipt of postage stamps through the mail does not affect the rights, procedures, or practices available to the public. We disagree. The inmates must have been receiving their postage stamps mainly from members of the general public, i.e., families and friends, rather than solely from inmates in other facilities. ¹ The effect of the new prohibition is to deny members of the general public their legal right to send postage stamps to inmates. As such, the policy directly affects and interferes with the rights and practices available to the public.

Defendant argues that in this case, unlike Schinzel II, its policy directive does not affect anyone other than inmates. Thus, subsection (g) should apply.

In Green v. Dep't of Corrections, 30 Mich.App. [140 MICHAPP 329] 648, 186 N.W.2d 792 (1971), aff'd 386 Mich. 459, 192 N.W.2d 491 (1971), this Court determined that penal institutions were public buildings within the meaning of the statutory public building exception to the governmental immunity statute, MCL 691.1406; MSA 3.996(106). This Court also said of the plaintiff inmate:

"Similarly, plaintiff is a member of the public community whether in or out of jail. The difference being that when incarcerated, he is prevented, by law, from exercising the rights and privileges he enjoyed as a free member of society. ⁷ The Supreme Court adopted verbatim the Court of Appeals language that held that the plaintiff inmate was a member of the public community whether in or out of jail. 386 Mich. 464, 192 N.W.2d 491. We find that Green controls our decision in this case.

[140 MICHAPP 330] The APA does not define the word "public" as it is used in M.C.L. Sec. 24.207(g); M.S.A. Sec. 3.560(107)(g). Thus, we consider the word "public" defined by its ordinary meaning. People v. Powell, 280 Mich. 699, 703, 274 N.W. 372 (1937). Based upon the...