Parole of Roberts, In re
| Decision Date | 20 October 1998 |
| Docket Number | 204516,Docket Nos. 199741 |
| Citation | 591 N.W.2d 259,232 Mich.App. 253 |
| Parties | James Morris ROBERTS, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Respondent-Appellee. Robert Lee, Jr., Petitioner-Appellant, v. Department of Corrections, Respondent-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
National Lawyers Guild by Neal Bush, Detroit, for James M. Roberts.
Robert Lee, Jr., Jackson, in pro. per.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Charles C. Schettler, Jr., Assistant Attorney General, for the Department of Corrections.
Before CORRIGAN, C.J., and DOCTOROFF and FITZGERALD, JJ.
In Docket No. 199741, James Morris Roberts, a prisoner in the custody of respondent Department of Corrections, appeals by leave granted a circuit court order granting respondent's motion to dismiss his application for leave to appeal the Parole Board's decisions to deny him parole and to issue a two-year continuance until his next parole eligibility interview.
In Docket No. 204516, petitioner Robert Lee, Jr., a prisoner in the custody of respondent Department of Corrections, appeals by leave granted a circuit court order affirming respondent's decisions to issue Lee a two-year continuance until his next parole eligibility interview after denying him parole and to forgo issuance of a declaratory ruling regarding the legality of respondent's decision to issue the two-year continuance. The appeals were consolidated.
The pivotal question presented is whether the Parole Board, after denying a prisoner parole, has authority to order a continuance of more than twelve months. A continuance is the period before an inmate will next be considered for parole. Roberts and Lee (petitioners) contend that M.C.L. § 791.235(7); MSA 28.2305(7) mandates that the time between Parole Board interviews may not exceed twelve months.
Subsection 35(7) provides, in pertinent part:
At least 90 days before the expiration of the prisoner's minimum sentence, or the expiration of a 12-month continuance, a parole eligibility report shall be prepared by appropriate institutional staff.
Subsection 35(7) pertains exclusively to the preparation of parole eligibility reports. Neither subsection 35(7) nor any other statute clearly requires parole consideration at twelve-month intervals. Additionally, subsection 35(7) does not limit the Parole Board's discretion to determine when it will reconsider a prisoner's eligibility for parole. Therefore, there exists no statutory impediment to the Parole Board's determination that petitioners' eligibility for parole would not be reconsidered for two years.
Petitioners also rely on 1979 AC, R 791.7710(2)(c), which states that if a parole release is denied, the Parole Board shall furnish the prisoner written notice "setting a new hearing date, to be no more than 12 months from the minimum eligibility date or previous pass-over date." Petitioners assert that this rule entitles prisoners to a parole release interview annually. However, the 1979 version of the rule was superseded by 1988 AACS, R 791.7710, which provides in subrule 710(2) that "[i]f a prisoner is denied parole at his or her minimum parole eligibility date, written notice shall be provided to the prisoner of his or her next parole consideration date, as determined by the parole board." Petitioners argue that M.C.L. § 24.207(k); MSA 3.560(107)(k) makes 1988 AACS, R 791.7710 inapplicable and requires application of 1979 AC, R 791.7710. MCL 24.207(k); MSA 3.560(107)(k) provides, in relevant part, that the following is excluded from the definition of an administrative rule:
Unless another statute requires a rule to be promulgated under this act, a rule or policy that only concerns the inmates of a state correctional facility and does not directly affect other members of the public, except that a rule that only concerns inmates which was promulgated before December 4, 1986, shall be considered a rule and shall remain in effect until rescinded but shall not be amended.
Petitioners contend that because 1979 AC, R 791.7710 was promulgated before December 4, 1986, it could not be amended, making the 1988 change nugatory. We reject this argument. First, nothing indicates that 1988 AACS, R 791.7710 amended, rather than superseded, 1979 AC, R 791.7710. MCL 791.206; MSA 28.2276 provides the Department of Corrections with the authority to promulgate rules controlling the manner in which paroles are considered. Under...
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