Penn v. Department of Corrections, Docket No. 46568
| Decision Date | 07 October 1980 |
| Docket Number | Docket No. 46568 |
| Citation | 100 Mich.App. 532,298 N.W.2d 756 |
| Parties | Patrick PENN, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee. 100 Mich.App. 532, 298 N.W.2d 756 |
| Court | Court of Appeal of Michigan — District of US |
[100 MICHAPP 535] James R. Neuhard, State Appellate Defender, P. E. Bennett, Asst. State Appellate Defender, for plaintiff-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas L. Casey, Asst. Atty. Gen., for defendant-appellee.
Before CYNAR, P. J., and KELLY and GILLESPIE, * JJ.
Plaintiff, seeking judicial review of the revocation of his parole, brought this action in Jackson County Circuit Court pursuant to M.C.L. § 24.201 et seq.; M.S.A. § 3.560(101) et seq. and M.C.L. § 600.631; M.S.A. § 27A.631. Following a hearing, the trial court dismissed the suit on the ground that the court lacked subject matter jurisdiction over the action. Plaintiff appeals as of right.
Plaintiff had been convicted of attempted larceny from a person, M.C.L. § 750.357; M.S.A. § 28.589, and M.C.L. § 750.92; M.S.A. § 28.287, and was sentenced to 11/2 to 5 years imprisonment. Approximately six months after being incarcerated, plaintiff was released on parole to Jackson County. Slightly less than fifteen months after being released on parole, plaintiff was arrested for parole violation. Three weeks after his arrest, a parole violation hearing was held, following which the parole board issued a decision revoking plaintiff's parole.
Plaintiff sought to challenge the parole board's decision on three grounds:
1. The board's failure to hold a prompt preliminary hearing after plaintiff's arrest amounted to a denial of due process and equal protection.
2. Since only two board members attended the hearing, the hearing did not meet the requirements[100 MICHAPP 536] of due process and the Administrative Procedures Act.
3. Since the board found plaintiff guilty of two parole violations which were not supported by the evidence and were contrary to the Board's expressed findings of fact, plaintiff's parole was improperly revoked.
Plaintiff first argues that the trial court erred in dismissing his complaint on the ground that the court lacked subject matter jurisdiction to review a parole board decision. Specifically, plaintiff contends that the Department of Corrections is an "agency" for purposes of applying the Administrative Procedures Act (APA), and that, therefore, proceedings of the department are governed by the APA. In addition, plaintiff contends that the APA provides for a right of review of agency decisions in contested cases, of which parole revocation proceedings are one type, dealing with the determination of a legal right, duty, or privilege of the parolee. Alternatively, plaintiff contends that M.C.L. § 600.631; M.S.A. § 27A.631 endowed him with a right of appeal to the circuit court.
Defendant argues that parole revocation proceedings are not contested cases, since there is no right to parole, and, moreover, actions of the parole board are exclusively discretionary. Finally, defendant claims that plaintiff's proper remedy was mandamus.
It is beyond question that the Department of Corrections is an "agency" for purposes of the APA. Lawrence v. Dep't. of Corrections, 88 Mich.App. 167, 169-170, 276 N.W.2d 554 (1979), lv. den. 407 Mich. 909 (1979), and the cases cited therein. In an analogous context, the Court in Lawrence held that prison disciplinary proceedings are "contested cases" under the provisions of the APA, stating:
[100 MICHAPP 537] Id., 171, 276 N.W.2d 554.
Defendant seeks to distinguish Lawrence on the basis that a prisoner has no right to parole. As such, defendant argues that the proceeding in question here is not a "contested case" under M.C.L. § 24.203(3); M.S.A. § 3.560(103) (3). We disagree. Contested cases are those which determine rights, duties, or privileges of a named party. M.C.L. § 24.203(3); M.S.A. § 3.560(103)(3). Under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), it is beyond peradventure that a parolee's liberty interest is, at a minimum, a privilege, the potential termination of which by the Department of Corrections requires adherence to due process guarantees. In our opinion, this is sufficient to characterize the parole revocation proceeding as a contested case, triggering application of the APA.
It should also be noted that the Court in Lawrence relied in part on Wolff v. McDonnel, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), for the proposition that a prison disciplinary proceeding determined legal rights, duties, or privileges of the prisoner. The Court in Wolff discussed Morrissey and distinguished the earlier case on the ground [100 MICHAPP 538] that the state had a greater interest in controlling a prisoner than in controlling a parolee. The Court stated that the full range of procedures suggested in Morrissey for an alleged parole violator need not be adopted for prisoners accused of misconduct. It therefore appears that, if anything, plaintiff here has the stronger argument than the plaintiff in Lawrence that his legal rights, duties, or privileges were being determined at the revocation hearing.
The trial court relied on the existence of a specific statute governing parole revocation hearings, M.C.L. § 791.240a; M.S.A. § 28.2310(1), and held that the APA did not expressly or implicitly repeal that statute. The statute provides:
The statute does not speak to appellate review. It is not clear whether the power to promulgate rules and regulations for the conduct of hearings is inconsistent with or complementary to the APA's contested case provisions. The Legislature has, since this action began, clarified matters by the passage of 1979 P.A. 139, which amended M.C.L. § 24.315; M.S.A. § 3.560(215) to read as follows:
Chapter 4, M.C.L. § 24.271; M.S.A. § 3.560(171) through M.C.L. § 24.287; M.S.A. § 3.560(187), regulates procedures for hearings in contested cases. Chapter 6, M.C.L. § 24.301; M.S.A. § 3.560(201) through M.C.L. § 24.306; M.S.A. § 3.560(206), provides for judicial review of contested cases. While the Legislature provided that chapters 4 and 6 do not apply to worker's disability compensation proceedings, it only provided that chapter 4 did not apply to Department of Corrections hearings. Defendant would have this Court infer from this statute that chapter 6 never applied to the Department of Corrections hearings, apparently on the theory that otherwise the Legislature would have provided that it no longer applied. However, the better view is that the Legislature thought chapter 6 applied and wanted it to continue to apply.
Moreover, section 55 of 1979 P.A. 140, M.C.L. § 791.255; M.S.A. § 28.2320(55), enacted subsequent to the trial court's decision in this matter, provides:
"A prisoner aggrieved by a final decision or order of a hearings officer or of the department may file a petition for judicial review of the decision or order pursuant to chapter 6 of Act No. 306 of the Public Acts of 1969, as amended, being section 24.301 to 24.306 of the Michigan Compiled Laws." (Emphasis added.)
Section 55 by its terms applies to final decisions of [100 MICHAPP 540] the Department of Corrections. Therefore, under current law, chapter 6 review is available for parole revocation. In Lawrence, supra, the Court expressly invited the Legislature to clarify its intentions as to the applicability of the APA. The Legislature's response was a compromise: some parts of the APA apply and others do not. Its actions did not necessarily reflect what it had intended prior law to mean; thus, the subsequent legislation is at best equivocal as to the scope of the APA's application prior to the passage of 1979 P.A. 139.
We conclude, however, that consonant with the dictates of Morrissey, supra, due process, at a minimum, requires the availability of judicial review of parole revocation proceedings and that the APA provides the proper...
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