Parole of Glover, In re

• Decision Date: 12 December 1997
• Docket Number: Docket No. 189303
• Citation: 226 Mich.App. 655,575 N.W.2d 772
• Parties: In re PAROLE OF GLOVER. Mary GLOVER, Appellant, v. MICHIGAN PAROLE BOARD, Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 772

575 N.W.2d 772

226 Mich.App. 655

In re PAROLE OF GLOVER.

Mary GLOVER, Appellant, v. MICHIGAN PAROLE BOARD, Appellee.

Docket No. 189303.

Court of Appeals of Michigan.

Submitted April 10, 1997, at Lansing.

Decided Dec. 12, 1997, at 9:00 a.m.

Released for Publication March 10, 1998.

Neal Bush and John F. Royal, Detroit, for Mary Glover.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Chester S. Sugierski, Jr., Assistant Attorney General, for Parole Board.

Jeanice Dagher-Margosian, amici curiae, for American Civil Liberties Union Fund of Michigan and Criminal Defense Attorneys of Michigan.

Before MICHAEL J. KELLY, P.J., and WAHLS and GAGE, JJ.

MICHAEL J. KELLY, Presiding Judge.

Mary Glover appeals by leave granted pursuant to MCR 7.205(D) an Ingham Circuit Court order affirming the Parole Board's denial of parole from her sentences of life imprisonment. We reverse the circuit court's decision, and remand for further proceedings.

Appellant is serving three concurrent terms of life imprisonment for her plea-based convictions of one count of second-degree murder and two counts of assault with intent to commit murder. In 1994, the Parole Board held a public hearing as required by M.C.L. § 791.234(6)(b); M.S.A. § 28.2304(6)(b) to determine whether to parole appellant. Appellant's case might be described as a cause celebre. Her many supporters submitted letters 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 ground-breaking 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 for various reasons, not the least being the tragic loss they had experienced as a result of appellant's acts.

In August 1994, the Parole Board denied parole to appellant with this statement:

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.

On appeal, the circuit court denied appellant's motion for reversal and affirmed the decision of the Parole Board. The circuit court held that appellant was not entitled to a detailed written statement of the Parole Board's reason for denying parole. The circuit court also determined that the statutory amendment increasing the interval between parole interviews for prisoners sentenced to parolable life terms did not violate the Ex Post Facto Clauses of the state and federal constitutions. Also, the circuit court concluded that the Parole Board did not violate the Open Meetings Act, M.C.L. § 15.261 et seq.; M.S.A. § 4.1800(11) et seq., by making its parole decision in an informal, closed session.

I

On appeal, appellant first contends that the Parole Board was required to make sufficiently detailed findings of fact and conclusions to enable the reviewing court to engage in an adequate, meaningful review of the Parole Board's decision to deny parole. We agree.

M.C.L. § 791.234(6); M.S.A. § 28.2304(6), the so-called "lifer law," governs parole determinations for prisoners serving parolable life terms and provides, as pertinent:

(6) A prisoner under sentence for life ... other than a prisoner sentenced for life for murder in the first degree ... who has served 10 calendar years of the sentence in the case of a prisoner sentenced for a crime committed before October 1, 1992 ... is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions:

(a) One member of the parole board shall interview the prisoner at the conclusion of 10 calendar years of the sentence and every 5 years thereafter until such time as the prisoner is paroled, discharged, or deceased. The interview schedule prescribed in this subdivision applies to all prisoners to whom this subsection is applicable, whether sentenced before, on, or after the effective date of the 1992 amendatory act that amended this subdivision.

(b) A parole shall not be granted a prisoner so sentenced until after a public hearing held in the manner prescribed for pardons and commutations in [M.C.L. § 791.244(2)(f); M.S.A. § 28.2314(2)(f) to M.C.L. § 791.244(2)(h); M.S.A. § 28.2314(2)(h) and M.C.L. § 791.245; M.S.A. § 28.2315]. Notice of the public hearing shall be given to the sentencing judge, or the judge's successor in office, and parole shall not be granted if the sentencing judge, or the judge's successor in office, files written objections to the granting of the parole within 30 days of the receipt of the notice of hearing. The written objections shall be made part of the prisoner's file.

In turn, the prisoner, the prosecutor of the county from which the prisoner was committed, or a victim may appeal by leave to the circuit court of the county from which the prisoner was committed the Parole Board's decision to grant or deny parole. M.C.L. § 791.234(7); M.S.A. § 28.2304(7). The Parole Board's decision regarding parole is reviewed for an abuse of discretion. MCR 7.104(D)(5)(b); M.C.L. § 791.234(7); M.S.A. § 28.2304(7), In re Parole of Johnson, 219 Mich.App. 595, 597-598, 556 N.W.2d 899 (1996). Generally, an abuse of discretion is found where an unprejudiced person, considering the facts upon which the decision maker acted, would say there was no justification or excuse for the decision made. See People v. Lugo, 214 Mich.App. 699, 709, 542 N.W.2d 921 (1995). This determination is to be made in light of the record and the statutory requirements limiting the Parole Board's decision. Johnson, supra at 598, 556 N.W.2d 899; Wayne Co. Prosecutor v. Parole Bd., 210 Mich.App. 148, 153, 532 N.W.2d 899 (1995).

The pivotal question is whether the Parole Board should be required to give some sort of written, particularized explanation of its decision to deny parole to a prisoner with a parolable life sentence, something which the board contends it does not have to do. M.C.L. § 791.234(7); M.S.A. § 28.2304(7) explicitly provides for circuit court review of the Parole Board's decisions concerning such prisoners, but does not indicate how the reviewing court is to evaluate the record upon which the Parole Board acted. Elsewhere, however, M.C.L. § 791.235(12); M.S.A. § 28.2305(12) requires the board to provide a prisoner with a "written explanation of the reason for denial [of parole] and, if appropriate, specific recommendations for corrective action the prisoner may take to facilitate release." As a rule of statutory construction, statutes relating to the same subject or sharing a common purpose are in pari materia and must be read together as one, even if they contain no reference to one another and were enacted on different dates. State Treasurer v. Schuster, 215 Mich.App. 347, 352, 547 N.W.2d 332 (1996). The object of the "in pari materia" rule is to give effect to the purpose of the Legislature as derived from the harmonious statutes on a subject. Jennings v. Southwood, 446 Mich. 125, 137, 521 N.W.2d 230 (1994). If the two statutes lend themselves to a construction avoiding conflict, that construction should control. State Treasurer, supra.

Both M.C.L. § 791.234; M.S.A. § 28.2304 and M.C.L. § 791.235; M.S.A. § 28.2305 pertain to parole. However, because M.C.L. § 791.235; M.S.A. § 28.2305 concerns prisoners who become eligible for parole after serving the minimum term of an indeterminate prison sentence, it is obvious that the Legislature has created different processes for prisoners serving parolable life sentences and those serving indeterminate sentences. The "written explanation" requirement of M.C.L. § 791.235(12); M.S.A. § 28.2305(12) is part of the parole process for prisoners who are not serving life sentences. The express mention in a statute of one thing implies the exclusion of other similar things. Gracey v. Wayne Co. Clerk, 213 Mich.App. 412, 420, 540 N.W.2d 710 (1995). Mindful of these considerations, we cannot say that these two statutes are in pari materia and must be read together as one in view of the distinction between the classes of persons to whom each applies. Therefore, we reject appellant's argument that she is entitled to a written explanation of the Parole Board's decision by virtue of M.C.L. § 791.235(12); M.S.A. § 28.2305(12).

While appellant may not be statutorily entitled to a written explanation of the Parole Board's decision to deny her parole, she is entitled to protection under the Due Process Clause of the United States Constitution, which "applies when government action deprives a person of liberty or property." See U.S. Const., Am. XIV; Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Appellant is also entitled to protection under the Due Process Clause of the Michigan Constitution, Const. 1963, art. 1, § 17, which provides that "[n]o person shall be ... deprived of life, liberty or property, without due process of law." Johnson v. Wayne Co., 213 Mich.App. 143 155, 540 N.W.2d 66 (1995) (Jansen, J.). To determine the applicability of the Due Process Clause to the instant situation, we must first determine whether appellant has a protectible liberty interest in attaining her conditional release on parole. Greenholtz, supra at 7, 99 S.Ct. at 2104. Next, to determine whether appellant is entitled to a written explanation from the Parole Board regarding its parole decision as a...