Shields v. Department of Corrections, Docket No. 62808

• Decision Date: 16 November 1983
• Docket Number: Docket No. 62808
• Citation: 128 Mich.App. 380,340 N.W.2d 95
• Parties: Milton M. SHIELDS, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee. 128 Mich.App. 380, 340 N.W.2d 95
• Court: Court of Appeal of Michigan — District of US

Page 95

340 N.W.2d 95

Milton M. SHIELDS, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

Docket No. 62808.

128 Mich.App. 380, 340 N.W.2d 95

Court of Appeals of Michigan.

Submitted June 22, 1983.

Decided Aug. 31, 1983.

Released for Publication Nov. 16, 1983.

[128 MICHAPP 381] Steven M. Jentzen, P.C. by Steven M. Jentzen, Ypsilanti, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Eric J. Eggan, Asst. Atty. Gen., Corrections Div., for defendant-appellee.

Before J.H. GILLIS, P.J., and HOLBROOK and ERNST, ^* JJ.

HOLBROOK, Judge.

Plaintiff is an inmate serving a life term in the State Prison of Southern Michigan for assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. On April 3, 1981, plaintiff filed a complaint in the circuit court for Ingham County for judicial review of the parole board's decision not to recommend him for parole, alleging that defendant, acting through its parole board, [128 MICHAPP 382] denied him certain due process rights under the Administrative Procedures Act and state and federal constitutions. Plaintiff prayed, inter alia, for an order directing defendant to hold a public hearing pursuant to M.C.L. Sec. 791.234 et seq.; M.S.A. Sec. 28.2304 et seq. Defendant filed a motion for accelerated judgment on the ground that the circuit court lacked subject matter jurisdiction to review the denial of parole. The circuit court held a hearing on the motion on January 26, 1982, and granted accelerated judgment thereon for lack of subject matter jurisdiction, GCR 1963, 116.1(2), "or summary judgment under 117.2(1)". On June 17, 1982, this Court granted plaintiff's application for delayed appeal from the circuit judge's order of dismissal.

Plaintiff was sentenced to life imprisonment on February 2, 1967. On October 9, 1976, he became eligible for parole under the so-called "lifer law", M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4).

The aforesaid law sets forth a two-stage process for a determination of parole for life sentences. The initial stage begins ten calendar years after sentencing. The first part thereof consists of an informal hearing where the inmate is interviewed by one or more of the parole board members. Thereafter, in October of each year, the entire parole board reviews the applicant's record to determine if parole is appropriate. If this preliminary review process results in the board's concluding that parole is a possibility, a second stage consisting of a formal public hearing commences. It is the initial stage of the parole process under M.C.L. Sec. 791.234(4) which is contested in this case.

During February of 1980 plaintiff received a letter from defendant informing him that defendant would conduct an informal parole hearing at [128 MICHAPP 383] some point in March of the same year. Plaintiff received no further notice of the hearing until the morning it was conducted. Plaintiff attended and was interviewed. On January 13, 1981, plaintiff received a letter informing him that the parole board had decided not to take action, following the initial review of his case "during the week of October 28, 1980". Plaintiff was not given an opportunity to attend or present evidence on his behalf at the October session of the parole board.

Plaintiff first contends that the decision of the parole board at the initial stage of said proceedings is reviewable as a "contested case" under the Administrative Procedures Act. We disagree.

The right to judicial review under the APA is governed by M.C.L. Sec. 24.301; M.S.A. Sec. 3.560(201):

"When a person has exhausted all administrative remedies available within an agency, and is aggrieved by a final decision or order in a contested case, whether such decision or order is affirmative or negative in form, the decision or order is subject to direct review, by the courts as provided by law." (Emphasis supplied.)

The act defines "contested case" in M.C.L. Sec. 24.203(3); M.S.A. Sec. 3.560(103)(3):

" 'Contested case' means a proceeding, including rate-making, proce-fixing, and licensing, in which a determination of the legal rights, duties, or privileges of a named party is required by law to be made by an agency after an opportunity for an evidentiary hearing. When a hearing is held before an agency and an appeal from its decision is taken to another agency, the hearing and the appeal are deemed to be a continuous proceeding as though before a single agency."

This Court has held that parole revocation and prison disciplinary proceedings may each be characterized[128 MICHAPP 384] as a "contested case", subject to judicial review. Penn v. Dep't of Corrections, 100 Mich.App. 532, 298 N.W.2d 756 (1980); Lawrence v. Dep't of Corrections, 88 Mich.App. 167, 276 N.W.2d 554 (1979). In Penn, supra, p. 538, 298 N.W.2d 756, the Court noted that the statute governing parole revocation "does not speak to appellate review". In contrast, the statute governing the initial granting of parole provides as follows:

"The time of a person's release on parole granted in compliance with this act shall be discretionary with the parole board. The action of the parole board in releasing prisoners shall not be reviewable if in compliance with law." M.C.L. Sec. 791.234(5); M.S.A. Sec. 28.2304(5) (prior to amendment by 82 P.A. 314, immediately effective October 15, 1982.) (Emphasis supplied.)

In this case, the parole board decided not to hold a public hearing on the question of plaintiff's parole. As stated above, said board initially found parole was not yet appropriate. The "lifer law" does not require a public hearing unless the prisoner is to be considered for parole. The APA "applies to all agencies and agency proceedings not expressly exempted". M.C.L. Sec. 24.313; M.S.A. Sec. 3.560(213). We find that the language of M.C.L. Sec. 791.234(5), expressly exempts the parole board's decision on whether to consider a prisoner for parole from judicial review, so long as the decision is made in compliance with M.C.L. Sec. 791.234(4). This is so regardless of whether the decision falls within the formal definition of a "contested case". The trial court's decision was proper.

Plaintiff additionally claims that denial of judicial review of a decision denying a prisoner consideration for parole violates due process rights under [128 MICHAPP 385] federal or state law. This contention is without merit.

In its consideration of the due process rights of inmates and parolees, this Court has not hesitated to follow the guidance of the United States Supreme Court. In Greenholtz v. Inmates of the Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979), it held that "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence". The Court upheld the Nebraska procedure for discretionary parole determinations, which is quite similar to the procedure at...