Reid v. DOC, STATE

• Decision Date: 19 April 2000
• Docket Number: Docket No. 201810.
• Citation: 609 N.W.2d 215,239 Mich. App. 621
• Parties: Larry REID, Edward Grant, Emma Perrymon, Personal Representative of the Estate of Phillip Miller, deceased, and Willie Thomas, Jr., Plaintiffs-Appellees, v. Department of Corrections and STATE OF MICHIGAN, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

609 N.W.2d 215

239 Mich. App. 621

Larry REID, Edward Grant, Emma Perrymon, Personal Representative of the Estate of Phillip Miller, deceased, and Willie Thomas, Jr., Plaintiffs-Appellees, v. Department of Corrections and STATE OF MICHIGAN, Defendants-Appellants.

Docket No. 201810.

Court of Appeals of Michigan.

Submitted January 5, 1999, at Detroit.

Decided February 8, 2000, at 9:00 a.m.

Released for Publication April 19, 2000.

Amos E. Williams, P.C. (by Amos E. Williams and Thomas E. Kuhn), Detroit, for the plaintiffs.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Chester S. Sugierski, Jr., Assistant Attorney General, for the defendants.

Before MARKMAN, P.J., and JANSEN and J.B. SULLIVAN¹, JJ.

JANSEN, J.

Defendants appeal as of right from a judgment in plaintiffs' favor following a bench trial. Specifically, defendants appeal from the trial court's previous order denying their motion for summary disposition. We reverse and remand for entry of judgment in favor of defendants.

This case² arises out of the Department of Corrections' (DOC) interpretation of M.C.L. § 800.33; MSA 28.1403, which governs prisoners' entitlement to sentence credits, as they relate to Proposal B offenders, M.C.L. § 791.233b; MSA 28.2303(3). Plaintiffs had all been convicted of Proposal B offenses before December 30, 1982, and were all under the jurisdiction of the DOC. Kenneth McGinnis was the director of the DOC, Marjorie Van Ochten was the administrator of the DOC's office of policy and hearing, and Richard McKeon was McGinnis' administrative assistant.

Before December 30, 1982, Proposal B offenders could earn good-time credits, which accrued at a rate of five to fifteen days a month, toward their maximum terms but not toward their minimum terms. After December 30, 1982, Proposal B offenders could not earn any good-time credits; however, they could earn disciplinary credits, which accrued at a rate of five days a month, toward their minimum and maximum sentences. On April 1, 1987, good-time credits were eliminated and all new offenders after that date could earn disciplinary credits only. The DOC interpreted the statutes as allowing Proposal B offenders sentenced before January 1, 1983, to earn disciplinary credits toward their minimum sentences as of January 1, 1983, and good-time credits toward their maximum sentences dating back to the time of the sentencing. See Lowe v. Dep't of Corrections (On Rehearing), 206 Mich.App. 128, 131-133, 521 N.W.2d 336 (1994) (Lowe II).

The DOC's calculation of good-time and disciplinary credits led to the plaintiff in Lowe to request a writ of mandamus to compel the DOC to grant disciplinary credits against his maximum sentence. This Court ruled in Lowe v. Dep't of Corrections (After Remand), an opinion of the Court of Appeals originally designated "for publication" but later withdrawn from publication, issued November 15, 1993 (Docket No. 138095) (Lowe I),³ that the DOC's interpretation was incorrect and that

Proposal B offenders incarcerated for crimes committed prior to January 1, 1983, are eligible for traditional good time and special good time credits on their maximum sentence for the period up to December 30, 1982; and, they are eligible for regular and special disciplinary credits on their maximum and minimum terms beginning January 1, 1983. Proposal B offenders are not eligible for any regular or special good time credits on their minimum sentences; nor are they eligible for any regular or special good time credits on their maximum terms after December 30, 1982.

The Attorney General, acting on behalf of the DOC, subsequently moved for rehearing of this Court's decision in Lowe I, arguing that this Court's interpretation of M.C.L. § 800.33(5); MSA 28.1403(5) violated the constitutional prohibition against ex post facto laws. Because of the pending motion for rehearing and the DOC's inability to determine whether the motion stayed the effect of Lowe I, the DOC continued to calculate sentence credits as it had done in the past. Under that interpretation, fourteen prisoners (including these four plaintiffs) had earned sufficient credits to be released, whereas under this Court's interpretation in Lowe I, those prisoners did not have sufficient credits to be released. As a result, the DOC released the fourteen prisoners. Plaintiffs in this matter were released between November 1993 and January 1994.

In January 1994, McGinnis determined that he was obligated to enforce Lowe I after discussions with assistant attorneys general regarding the effect of Lowe I, despite the pending motion for rehearing, and, therefore, the released prisoners should be taken back into custody. McGinnis so advised the Attorney General's office, which filed ex parte motions in each of the sentencing courts to rescind the discharges and for arrest warrants so that the prisoners could be brought before the court to show cause why they should not be returned to prison to serve the remainder of their sentences. Warrants were obtained on February 7, 1994, and plaintiffs were arrested on February 9 and 10, 1994. The circuit court that authorized the warrants for plaintiffs Larry Reid and Phillip Miller declined to hold a show cause hearing, although another circuit court, which had authorized the warrant for plaintiff Edward Grant, scheduled a hearing for February 18, 1994.

However, on February 3, 1994, this Court issued an order granting the motion for rehearing of Lowe I. The order stated that "a revised opinion will be issued in due course if the Court determines that such an opinion is appropriate," but was otherwise silent regarding the effect of the decision in Lowe I pending release of a revised opinion, if any. On February 17, 1994, however, this Court issued another order staying the effect of its decision in Lowe I. Once the DOC was notified of the order staying the effect of Lowe I, it released the prisoners who had previously been arrested and taken back into custody. Plaintiffs were all released on February 18, 1994. Ultimately, on July 5, 1994, this Court issued its decision on rehearing, concluding that Lowe I was incorrect and that the DOC's interpretation of the law "conforms to the legislative scheme in a way that is consistent with the intent behind M.C.L. § 800.33(5); MSA 1403(5), as well as the constitutional prohibition against ex post facto laws." Lowe II, supra at 135-136, 521 N.W.2d 336.

Plaintiffs filed this suit in the Court of Claims on August 18, 1994. Plaintiffs alleged claims of abuse of process, false arrest, false imprisonment, denial of due process under the state constitution, and violation of the constitutional protection against double jeopardy. This case was then consolidated with Thomas v. McGinnis, 239 Mich.App. 636, 609 N.W.2d 222 (2000), in the Wayne Circuit Court. The Court of Claims, in an order dated July 24, 1996, granted summary disposition in favor of the state defendants with regard to the claims of abuse of process, false arrest, and false imprisonment. Thus, only the constitutional tort claims survived.

This case was tried before the Court of Claims, acting in the Wayne Circuit Court. The Court of Claims issued its opinion on the record on February 19, 1997. The court stated, "The sole remaining issue after trial is whether or not the defendants MDOC and State of Michigan violated the plaintiff [s'] consti[tu]tional rights and if so the amount of damages if any." The court found that plaintiffs' constitutional tort claims had been established at trial in that plaintiffs successfully proved that defendants adopted an official custom or policy that mandated the action and deprived the plaintiffs of their rights protected by the state constitution. The court also found that this policy and its implementation violated the plaintiffs' constitutional rights to be free from arrest and imprisonment without probable cause and deprived them of due process of law.

With regard to damages, the Court of Claims found that plaintiff Reid had been discharged from prison on December 3, 1993, was rearrested on February 9, 1994, and was incarcerated until February 18, 1994. Reid was awarded $25,000. The court found that plaintiff Grant was discharged on January 13, 1994, rearrested on February 9, 1994, and incarcerated until February 18, 1994. Grant was awarded $30,000. Plaintiff Miller was discharged from prison on November 24, 1993, rearrested on February 9, 1994, and incarcerated until February 18, 1994. The court awarded Phillip Miller $15,000.⁴ Plaintiff Thomas was discharged from prison on December 31, 1993, rearrested on February 10, 1994, and incarcerated until February 18, 1994. The court awarded plaintiff Thomas $25,000.

On appeal, defendants argue, through the Attorney General, that the Court of Claims' decision must be reversed because the DOC has a duty to follow a decision of this Court (the decision in Lowe I), that the Court of Claims improperly imposed legal duties on defendants regarding the manner in which the plaintiffs were arrested, and that plaintiffs failed to establish a constitutional tort because they failed to establish the existence of an official custom or policy mandating the officials' actions.

In Smith v. Dep't of Public Health, 428 Mich. 540, 544, 410 N.W.2d 749 (1987), a majority of our Supreme Court held that "[w]here it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action." The Court further held that a "claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases." Id. Although an appropriate analysis for determining whether a constitutional tort had been established did not garner a majority opinion, Justice Boyle's extensive analysis of this issue has generally been utilized by this Court. Thus, ...