Wayne County Prosecutor v. Parole Bd., Docket Nos. 147850
| Decision Date | 21 April 1995 |
| Docket Number | 147967,Docket Nos. 147850,155594 |
| Citation | 210 Mich.App. 148,532 N.W.2d 899 |
| Parties | WAYNE COUNTY PROSECUTOR, Plaintiff-Appellee, v. PAROLE BOARD, Defendant, and Charles Shockley, Intervening Defendant-Appellant. WAYNE COUNTY PROSECUTOR, Plaintiff-Appellee, v. PAROLE BOARD, Defendant-Appellant, and Department of Corrections, Martin Makel, Thomas Patten, and Gloria Richardson, Defendants, and Charles Shockley, Intervening Defendant. WAYNE COUNTY PROSECUTOR and Jane Doe, Plaintiffs-Appellees, v. PAROLE BOARD, Department of Corrections, Martin Makel, Thomas Patten, and Gloria Richardson, Defendants, and Charles Shockley, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
John D. O'Hair, Pros. Atty., and George E. Ward, Chief Asst. Prosecutor, Detroit, for Wayne County Prosecutor and the crime victim.
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and Chester S. Sugierski, Jr., Asst. Atty. Gen., for Parole Bd.
ACLU Fund of Michigan by Patricia A. Streeter, Neal Bush, and Goodman, Eden, Millender & Bedrosian by William H. Goodman, Detroit, for Charles Shockley.
Before MARILYN J. KELLY, P.J., and CYNAR * and WILDER, ** JJ.
Inmate Charles Shockley was granted parole by the Parole Board on September 5, 1991, and again on May 14, 1992. 1 In each instance, the prosecutor and the victim of Mr. Shockley's crimes appealed to the circuit court and the parole decisions were vacated. 2 Mr. Shockley and the board appeal as of right from the first decision; Mr. Shockley appeals by delayed leave granted from the second decision. The parties' separate appeals have been consolidated. We reverse and remand.
We first consider whether venue for this case was proper in Wayne County, where defendant was convicted, rather than in Ingham County, where the Parole Board acted. We conclude that venue was properly laid.
In Blue Cross & Blue Shield of Michigan v. Commr. of Ins., 155 Mich.App. 723, 728-729, 400 N.W.2d 638 (1986), this Court held that, in appeals from decisions of administrative agencies, venue is proper either where prescribed by statutes applicable to the agency, or as provided in M.C.L. § 600.631; M.S.A. § 27A.631, or as provided in the Administrative Procedures Act (APA), M.C.L. § 24.201 et seq.; M.S.A. § 3.560(101) et seq. In the case before us, the statutes regarding the agency do not address the question of venue. See M.C.L. § 791.231-791.246; M.S.A. § 28.2301-28.2316. Similarly, because a right to appeal has been specifically provided by law, M.C.L. § 600.631; M.S.A § 27A.631, which controls general appeals from agency decisions, does not apply. See M.C.L. § 791.234(5); M.S.A. § 28.2304(5). Lastly, because this is not a contested case as defined by the court rules and the APA, the venue provisions of the APA do not apply either. See M.C.L. § 24.301; M.S.A. § 3.560(201); see also M.C.L. § 24.303; M.S.A. § 3.560(203); MCR 7.105(A)(2). We also note that the general provision of the Revised Judicature Act regarding actions against government agencies does not apply because this was an appeal and not an original action. See M.C.L. § 600.1615; M.S.A. § 27A.1615.
In the absence of any clearly applicable venue provision, we find that the general venue statute governing appeals from government agency decisions--although not technically applicable--is in pari materia with the parole appeal statute and therefore should apply by analogy. See M.C.L. § 600.631; M.S.A. § 27A.631. Thus, venue was proper either in "the county of which the appellant is a resident or [in] the circuit court of Ingham county." Because appellants reside in Wayne County, venue was proper there.
Appellants next argue that the prosecutor and the victim of Mr. Shockley's crimes had no standing to contest the board's grants of parole. We disagree.
Since the trial court's decisions in these two cases, the parole statute has been amended to specifically allow appeals from a grant of parole by the victim and the prosecutor of the county where the defendant was convicted. See M.C.L. § 791.234(5); M.S.A. § 28.2304(5). The legislative analysis specifically refers to this case and to the board's argument that the victim and the prosecutor lack standing as reasons for enacting the amendment. It is well-settled that when an amendment is enacted soon after controversies arise regarding the meaning of the original act, it is logical to regard the amendment as a legislative interpretation of the original act. Detroit v. Walker, 445 Mich. 682, 697, 520 N.W.2d 135 (1994), and authority cited therein. Thus, the amendment clarifies that, all along, the Legislature intended to give the victim and the prosecutor standing to appeal the Parole Board's decision. See id.
Next, appellants argue that the trial court applied the wrong standard of review when it decided that the board's decision was not supported by substantial evidence. We agree and reverse and remand.
Review of agency decisions "in cases in which a hearing is required" must include the determination whether the decision is "supported by competent, material and substantial evidence on the whole record." Const 1963, art 6, § 28. However, a "hearing" is not required before parole is granted except for prisoners "under sentence for life or for a term of years." See M.C.L. § 791.234(4)(b); M.S.A. § 28.2304(4)(b); see also M.C.L. § 791.235; M.S.A. § 28.2305. Rather, the statutes provide for an "interview" with the prisoner and for consideration of a "statement" by the victim. See M.C.L. § 791.235(1), (4)-(6); M.S.A. § 28.2305(1), (4)-(6); see also M.C.L. § 780.771(1)-(2); M.S.A. § 28.1287(771)(1)-(2). Although the inmate is allowed to "present relevant evidence in support of release," the statute does not provide for cross-examination and specifically prevents the prisoner from being represented by counsel. See M.C.L. § 791.235(6); M.S.A. § 28.2305(6). Finally, the decision whether to grant or deny parole is explicitly entrusted to the Parole Board's discretion. See M.C.L. § 791.234(5); M.S.A. § 28.2304(5).
In light of the provisions quoted above and of the lack of an explicit standard of review in the statute, we conclude that the appropriate standard of review is abuse of discretion. See J & P Market, Inc. v. Liquor Control Comm., 199 Mich.App. 646, 651, 502 N.W.2d 374 (1993). This discretion, however, is not unfettered but, rather, is circumscribed by the many requirements of the statute. See, e.g., M.C.L. § 791.233(1); M.S.A. § 28.2303(1); M.C.L. § 791.235(1), (3), (4), (7)-(9); M.S.A. § 28.2305(1), (3), (4), (7)-(9).
In this case, the trial court vacated the Parole Board's decision by using a higher standard of review than was warranted. Because we cannot guess whether the trial court would have upheld the board's decision had it applied the proper standard of review, we remand for reconsideration. Compare J & P, supra at 649-652, 502 N.W.2d 374 (). On remand, the trial court is to determine whether, in light of the record and of the statutory requirements, the decision to grant parole constituted an abuse of discretion. The trial court is not to substitute its judgment for that of the Parole Board. Marrs v. Bd. of Medicine, 422 Mich. 688, 694-695, 375 N.W.2d 321 (1985).
Next, the board argues that the trial court erred in finding that Mr. Shockley could not be granted parole in the absence of confirmed employment. We agree.
The statute provides that "[t]he grant of a parole shall be subject to all of the following: ... (d) A prisoner shall not be released on parole until the parole board has satisfactory evidence that arrangements have been made for such honorable and useful employment as the prisoner is capable of performing." M.C.L. § 791.233(1)(d); M.S.A. § 28.2303(1)(d) (emphasis added). It is clear from this subsection that the granting of parole is conditioned upon the inmate not being released until satisfactory evidence of useful employment is provided to the board. It would be unreasonable to require a prisoner to obtain employment before parole is granted. On the other hand, it is not unreasonable to withhold releasing a parolee until employment is obtained. The board's long-standing interpretation of the statute is reasonable and should have been upheld. Southfield Police Officers Ass'n. v. Southfield, 433 Mich. 168, 177, 445 N.W.2d 98 (1989).
Mr. Shockley next argues that the trial judge should have been disqualified from hearing the second case because he made public comments regarding his first decision. We disagree.
"A judge is disqualified when the judge cannot impartially hear a case, including a proceeding in which the judge ... (2) is personally biased or prejudiced for or against a party." MCR 2.003(B) (2). Normally, the party seeking disqualification has the burden of proving actual prejudice. People v. Houston, 179 Mich.App. 753, 756, 446 N.W.2d 543 (1989). However, that showing is not required in situations where experience teaches us that the possibility of actual bias is too high to be constitutionally tolerable, such as where the judge has a financial stake in the outcome, has been the target of personal abuse or criticism by a party, is enmeshed in other legal matters involving a party, or may have prejudged the case because of previous participation in the proceedings. Crampton v. Dep't. of State, 395 Mich. 347, 351, 235 N.W.2d 352 (1975).
In this case, Mr. Shockley alleges that the judge's comments to the media show actual bias or prejudice. We disagree. The trial judge told a television reporter:
Once I was acquainted with the facts, the brutal nature of the crime, the amount of time--he had only served some five years (sic) for this horrible crime--his poor prison adjustment, plus the psychological reports, it seemed...
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