Parshay v. Buchkoe, Docket No. 7982

• Decision Date: 17 February 1971
• Docket Number: Docket No. 7982,No. 3,3
• Citation: 30 Mich.App. 556,186 N.W.2d 859
• Parties: Fred PARSHAY, Plaintiff-Appellant, v. Raymond BUCHKOE, as Warden of the Branch Prison, Marquette, Michigan,Defendant-Appellee. *
• Court: Court of Appeal of Michigan — District of US

Page 859

186 N.W.2d 859

30 Mich.App. 556

Fred PARSHAY, Plaintiff-Appellant, v. Raymond BUCHKOE, as Warden of the Branch Prison, Marquette,

Michigan,Defendant-Appellee. ^*

Docket No. 7982.

Court of Appeals of Michigan, Division No. 3.

Feb. 17, 1971.

Released for Publication May 20, 1971.

Fred Parshay, in pro. per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert C. Goussy, William J. Mullaney, Dennis Shafer and Ronald Kaplansky, Asst. Attys. Gen., for defendant-appellee.

Before HOLBROOK, P.J., and McGREGOR and T. M. BURNS, JJ.

HOLBROOK, Presiding Judge.

This is an appeal by right from the Circuit Court's grant of accelerated judgment dismissing plaintiff's 'motion for superintending control' for failing to state a claim upon which relief can be granted.

Plaintiff is a state prisoner. See People v. Parshay (1967), 379 Mich. 7, 148 N.W.2d 869; People v. Parshay, Jackson county number X4--408, Court of Appeals number 6463, leave to appeal denied, Supreme Court number 52422 1/2, October 13, 1969; People v. Parshay, Recorder's Court number A--69499, Court of Appeals number 5083, leave to appeal denied, Supreme Court number 52370 1/2, October 13, 1969.

Plaintiff filed his motion in the Circuit Court for Marquette county and complained that he and other inmates were improperly denied their rights to have unlimited mail privileges and freedom to speak as they desired while they are inmates of the prison. These and other restrictions placed upon the inmates by the Warden were sought to be restrained.

The trial court treated the motion as one for Habeas corpus under GCR 1963, 711.2. GCR 1963, 806.2(4) originally required leave to appeal whether an original writ was granted or denied. Under the present rules, final orders granting or denying writs of superintending control, Mandamus, or Quo warranto are appealable as of right as is a final judgment in any civil action. GCR 1963, 806.1. Orders of denial in Habeas corpus proceedings are not appealable as of right. They may be renewed by filing an original complaint in the Court of Appeals.

If this case is treated as founded on Habeas corpus, it is not properly before us. Moreover, no facts are alleged below or are here alleged to justify the granting of any relief under Habeas corpus.

Plaintiff now alleges that his complaint was for Mandamus; it was referred to below as a complaint for writ of Habeas corpus and as a petition for injunction as well as a motion for superintending control.

Plaintiff's motion obviously cannot be grounded in Mandamus for there is no showing of a clear, legal right in the plaintiff or a clear, legal duty to act or desist, requiring no exercise of discretion on the part of the defendant. Taylor v. Ottowa Circuit Judge (1955), 343 Mich. 440, 72 N.W.2d 146.

Treating the motion as one for superintending control as it was entitled by plaintiff, we come to the issue: Is the Warden of a state prison an 'inferior tribunal' within the meaning of GCR 1963, 711.1?* The Warden is granted by statute general superintendence concerning matters of internal discipline. M.C.L.A. § 800.9 (Stat.Ann.1954 Rev. § 28.1379). Defendant is not an inferior tribunal. He is a member of a state administrative agency, the Department of Corrections. The 'other tribunals' referred to in the court rule are administrative agencies which act in judicial or quasi-judicial proceedings. In making rules administering internal discipline at the prison, the Warden is not acting in a judicial or quasi-judicial manner. These actions are purely administrative and therefore not subject to a mandatory order of superintending control.

Plaintiff cannot prevail when we consider his motion as one for superintending control.

There is a method provided by statute whereby the plaintiff may test the validity or proper legal applicability of the rules and orders of the defendant as applied to him. Such action is provided by statute for a declaratory judgment as set forth in the Michigan Administrative Procedures Act. M.C.L.A.1970 Cum.Supp. § 24.201 Et seq. (Stat.Ann.1970 Cum.Supp. § 3.560 (101) Et seq.).

M.C.L.A.1970 Cum.Supp. § 24.264 (Stat.Ann.1970 Cum.Supp. § 3.560 (164)), provides in part:

'Unless an exclusive procedure or remedy is provided by a statute governing the agency, the validity or applicability of a rule may be determined in an action for declaratory judgment when the court finds that the rule or its threatened application interfers with or impairs, or imminently threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The action shall be filed in the circuit court of the county where the plaintiff...