Morales v. Michigan Parole Bd.

• Decision Date: 05 March 2004
• Docket Number: Docket No. 239936,Docket No. 240458.
• Citation: 260 Mich. App. 29,676 N.W.2d 221
• Parties: Rene Jone MORALES, Petitioner-Appellee, v. MICHIGAN PAROLE BOARD Respondent-Appellant, Lawrence C. Meyers, Petitioner-Appellant, v. Department of Corrections, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

676 N.W.2d 221

260 Mich. App. 29

Rene Jone MORALES, Petitioner-Appellee, v. MICHIGAN PAROLE BOARD Respondent-Appellant, Lawrence C. Meyers, Petitioner-Appellant, v. Department of Corrections, Respondent-Appellee.

Docket Nos. 239936, 240458.

Court of Appeals of Michigan.

Submitted October 8, 2002, at Lansing.

Decided December 16, 2003, at 9:00 a.m.

Released for Publication March 5, 2004.

Barbara R. Levine, Grand Ledge, for Rene Jose Morales.

Stuart G. Friedman, Plymouth, for Lawrence C. Meyers.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Charles C. Schettler, Jr., Assistant Attorney General, for the Parole Board.

Before: DONOFRIO, P.J., and SAWYER and O'CONNELL, JJ.

DONOFRIO. P.J.

These consolidated appeals concern conflicting circuit court decisions regarding whether a circuit court may hear appeals under the Revised Judicature Act (RJA), MCL 600.631 et seq., from the denial of parole by the Parole Board.

In Docket No. 239936, the Parole Board appeals by leave granted the circuit court's order granting petitioner Rene Jose Morales leave to appeal and remanding the matter to the Parole Board for rehearing. Respondent board contends the court erred by ruling that an appeal from a determination of the Parole Board may be brought under the RJA.

In Docket No. 240458, petitioner Lawrence C. Meyers appeals by leave granted a different circuit court's order dismissing petitioner's appeal from the Parole Board's denial of parole. Petitioner argues that the circuit court had jurisdiction to hear his appeal under the RJA.

We find that appeals from the Parole Board's denial of parole are not allowed under the RJA, and thus reverse the order of the circuit court in Docket No. 239936, and affirm the order of the circuit court in Docket No. 240458.

INTRODUCTION

These appeals involve two conflicting circuit court decisions regarding the appealability of denials of parole by the Parole Board. In Docket No. 239936, the circuit court granted judicial review under the RJA of the Parole Board's decision denying petitioner Morales parole. Respondent Parole Board appealed by leave granted. In Docket No. 240458, the circuit court denied petitioner Meyers's request for judicial review under the RJA of the Parole Board's denial of his parole. This Court granted petitioner Meyers's application for leave to appeal. The appeals were consolidated in order to facilitate our review of the common issues and to resolve the conflict.

I

Initially we observe that both petitioner Morales and petitioner Meyers were paroled during the pendency of these appeals. Following his parole, petitioner Morales moved to dismiss the case on the ground that it was moot. This Court denied the motion. Petitioner Meyers, instead of moving for a dismissal, argues on appeal that this Court should hear this case because it is of public significance and is capable of repetition and has so far evaded review.

This Court's duty is to consider and decide actual cases and controversies. Federated Publications, Inc. v. City of Lansing, 467 Mich. 98, 112, 649 N.W.2d 383 (2002). "To that end, this Court does not reach moot questions or declare principles or rules of law that have no practical legal effect in the case before us unless the issue is one of public significance that is likely to recur, yet evade judicial review." Id. This Court will entertain cases that are technically moot if the issues involved are of public significance and are likely to recur in the future and yet evade judicial review. In re Wayne Co. Election Comm., 150 Mich.App. 427, 432, 388 N.W.2d 707 (1986). Generally, a case is not moot if the issues sought to be litigated are capable of repetition, yet evade review. Ferency v. Secretary of State, 139 Mich.App. 677, 681, 362 N.W.2d 743 (1984).

While both petitioners in this case have been paroled, there is no guarantee they will remain on parole. If returned to prison and again denied parole, either petitioner could once again initiate the appeal process. Therefore, we find this issue capable of repetition and not moot. Because this issue is of public significance and capable of repetition while evading review, we will hear the case.

II

In Docket No. 239936 the Parole Board first argues that petitioner had no legal ground to seek an appeal of its decision denying petitioner Morales parole. The Parole Board argues that the Legislature, through its amendment of the Department of Corrections act, MCL 791.201 et seq., and the Michigan Supreme Court, through the amendment of its court rule, MCR 7.104(D), eliminated appeals by inmates from denials of parole. Parole eligibility is governed by statute, and interpretations and applications of statutes are questions of law reviewed de novo. Jackson v. Dep't of Corrections, 247 Mich.App. 380, 381, 636 N.W.2d 305 (2001).

This Court in Hopkins v. Parole Bd., 237 Mich.App. 629, 637-638, 604 N.W.2d 686 (1999), stated that,

[g]enerally, three potential avenues of review exist by which an aggrieved party may challenge an administrative body's decision: (1) review pursuant to a procedure specified in a statute applicable to the particular agency, (2) the method of review for contested cases under the Administrative Procedures Act (APA), MCL 24.201 et seq.; MSA 3.560(101) et seq., or (3) an appeal pursuant to § 631 of the Revised Judicature Act, MCL 600.631; MSA 27A.631, and Const 1963, art 6, § 28, in conjunction with MCR 7.104(A).

Since the Parole Board is an administrative body, our analysis focuses on the three avenues enumerated in Hopkins, supra.

A

Regarding the first avenue, petitioner Morales concedes there is no dispute that the 2000 amendment of the Department of Corrections act, MCL 791.201 et seq., effectively barred appeals by inmates from denials of parole. The circuit court stated in its opinion that "[i]n order to bring the Michigan Court Rules into conformity with the law and provide a specific procedure for bringing parole appeals, the Michigan Supreme Court amended MCR 7.104 in 1996 to add subsection D[,] which specifically provides for appeals from decisions of the Michigan Parole Board." The circuit court also stated that our Supreme Court once again amended MCR 7.104(D) in 2000 in conformance with amended MCL 791.234, effective March 10, 2000.

Because of the nature of the case, we find it necessary to engage in a brief discussion of the history of parole appeals in Michigan. Before 1982, inmates had no statutory right to appeal their parole denial unless that denial failed to comply with the law: "The action of the parole board in releasing prisoners shall not be reviewable if in compliance with the law." MCL 791.234(5), amended by 1978 PA 81. In 1982, the Legislature amended subsection 34(5) in 1982 PA 314, and, for the first time, statutorily provided for inmate appeals:

The time of a prisoner's release on parole shall be discretionary with the parole board. The action of the parole board in granting or denying a parole shall be appealable to the circuit court by leave of the court. [MCL 791.234(5), amended by 1982 PA 314.]

Then in 1992, the Legislature amended the statute to include appeals by prosecutors and victims:

[A] prisoner's release on parole shall be discretionary with the parole board. The action of the parole board in granting or denying a parole shall be appealable by the prisoner, the prosecutor of the county from which the prisoner was committed, or the victim of the crime for which the prisoner was convicted. The appeal shall be to the circuit court by leave of the court. [MCL 791.234(5), amended by 1992 PA 181.]

The relevant provision, MCL 791.234(9),¹ since its amendment by 1999 PA 191 states that,

a prisoner's release on parole is discretionary with the parole board. The action of the parole board in granting a parole is appealable by the prosecutor of the county from which the prisoner was committed or the victim of the crime for which the prisoner was convicted. The appeal shall be to the circuit court in the county from which the prisoner was committed, by leave of the court. [Emphasis added.]

The 1999 PA 191 amendment of MCL 791.234, deleting the language allowing inmate appeals of Parole Board decisions by leave granted became effective March 10, 2000. Our Supreme Court amended MCR 7.104(D) on February 29, 2000. This amendment was based on the Legislature's amendment of MCL 791.234, 1999 PA 191. Like 1999 PA 191, the amendment of MCR 7.104(D) became effective March 10, 2000, and eliminated any reference to appeals by inmates of Parole Board decisions.

The Legislature is presumed to have intended the clear meaning it expressed. Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002). Here, the Legislature has provided for an appeal of a Parole Board decision only by the prosecutor or the crime victim. By eliminating the phrase, "shall be appealable by the prisoner," 1999 PA 191, the Legislature clearly intended the meaning expressed: a prisoner's right to appeal by leave granted has been eliminated. Thus, we find, and petitioner Morales concedes, that the Legislature and our Supreme Court eliminated inmate appeals by leave granted of Parole Board decisions under the Department of Corrections act, MCL 791.201 et seq.

B

In his brief on appeal, as it relates to the second avenue of review, petitioner Morales also concedes that an inmate may not appeal under the Administrative Procedures Act (APA), MCL 24.201 et seq., from a decision of the Parole Board. It is well-settled that parole decisions are not "contested cases" and therefore are not appealable under the APA. Hopkins, supra, 237 Mich.App. at 639, 604 N.W.2d 686. Accordingly, the only contested issue before us is whether a prisoner may appeal under the RJA from the denial of parole.

C

Regarding the third avenue, petitioner Morales asserts that the RJA still provides for inmate appeals, because the Legislature only eliminated inmate...