In Re Parole of Glover

In re PAROLEOF GLOVER April 10, 1997, Lansing. Docket No. 189303.Submitted Decided Decem- 12, 1997, appeal sought. ber at 9:00 A.M. Leave to Mary by appealed granted Ingham Glover leave in the Circuit Court by August parole an 1994 decision the Parole Board to her imprisonment. court, from concurrent sentences of life Brown, J., Board, Thomas L. affirmed the decision of the Parole determining expla- that the was not entitled to a written by parole, nation the Parole Board of the reason for denial of years years the increase from two to five in the interval between parole prisoners parolable interviews of with sentences of life imprisonment provided 791.234(4)(a); as in MCL MSA 28.2304 by (4)(a), 181, 791.234(6)(a); as amended 1992 PA now MCL MSA 28.2304(6)(a), applied appellant, and as to the did not violate the Michigan Ex Post Facto Clauses of the United States and Constitu- tions, Open Meetings and that the Parole Board did not violate the Act, seq.; 4.1800(11) seq., by making MCL 15.261 et et its deci- informal, appellant appealed by sion an closed session. The granted Appeals. leave in the Court of Appeals

The Court of held-. 28.2305(12), requires 1. MCL which the Parole provide explanation Board to a written of the reason for a denial of parole, applies prisoners serving indeterminate sentences and apply prisoner who, appellant, serving does not to a like the a parolable imprisonment. sentence of life process, guaranteed by Const, 2. Due US Am XTVand Const 1, 17, prisoner serving parolable § art entitles a who is a sen- imprisonment expla- tence life and is denied ato written parole. nation the Parole Board of the reason for denial of Such prisoner protectible liberty attaining has a interest in release on balancing interest, depriva- A of that the risk of erroneous through procedures used, govern- tion of that interest and the interests, including ment’s the function at issue and the increased by requiring fiscal and administrative burdens caused such a writ- explanation, ten leads to the conclusion that considerations of fair- process require explanation by ness and due a written the Parole prisoner serving Board of a denial of to a sen- imprisonment. The matter must be remanded to the tence of life of the denial of Parole Board for written jurisdiction appellant. Appeals and holds The Court of retains abeyance of whether denial of constitutes consideration Board. an abuse of discretion the Parole frequency of 3. The decrease in the of Parole Board interviews parolable imprisonment prisoners serving of effected sentences life by represented procedural, substantive, change a not a 1992 PA 181 respect appellant’s rights and does not violate the Ex with to the constitutions, Const, and state US Post Facto Clauses of the federal 10; 1963, 1, I, § art 10. § art Const Open Meetings applies Act to the Board and was 4. The Parole parole violated in this case when the Parole Board denied to the open required by appellant meeting without notice legislative exempt A the Parole Board from the act. clear intent requirements Open Meetings of the Act cannot be discerned 28.2272(2) by from the amendment of MCL 79, required language PA which deleted that had the Parole Board comply Open Meetings Any impairment with the Act. rights public resulting of the from the failure of the Parole Board to comply Open Meetings by furnishing with the Act will be remedied explanation parole a written of the denial of to the appellant. Accordingly, the Parole Board need not reconsider its formal, public meeting. decision Reversed and remanded. J., concurring part dissenting part, stated that the Gage,

possibility subject process pro- is not an interest to due subject requirements tection and that the Parole Board is not to the Open Meetings possibility of the Act. The is no more than hope protected by process, Leg- a mere and cannot be due and the exempt islature manifested its intent to Board from Parole Open Meetings Act when it enacted 1987PA 79. The decision of the circuit court should be affirmed. — — — — Imprisonment

1. Sentences Parole Life Denials of Parole Writ- Explanations ten of Parole Board. process, guaranteed constitutions, Due the federal and state prisoner serving entitles who is sentence of life imprisonment and is denied to a written parole (US Const, XIV; Parole Board of the reason for denial of Am 1963, 1, 17). § Const art — 2. Law Ex Post Constitutional Facto Laws. prosecution disposition A statute that affects the or criminal cases involving crimes committed before the effective date of the statute the Ex Post Facto Clauses of the federal and state consti- violates punishable not, an tutions if it makes that which was makes act a offense, punishment, increases the or allows more serious criminal I, Const, prosecution (US § to convict on less evidence art 1, 10). § art Const Meetings — — Open 3. Statutes Parole Board. Act requirements Open Meetings public meeting and notice Act apply grant Parole Board and its decisions to to the seq.; seq.). (MCL 15.261 et et 4.1800[11] Royal, Mary Neal and John F. for Glover. Bush Kelley, Attorney General, Frank J. Thomas L. Casey, General, Sugierski, Solicitor and Chester S. Attorney General, Jr., Assistant for the Parole Board. Amici Curiae:

Jeanice for American Civil Lib- Dagher-Margosian, Fund of Michigan erties Union and Criminal Defense Attorneys of Michigan. J. and Wahls P.J.,

Before: Michael Kelly, Gage, JJ. Mary appeals by J. P.J. Glover leave Kelly,

Michael granted pursuant 7.205(D) Ingham to MCR an Circuit affirming Court order the Parole Board’s denial of imprisonment. from her sentences of life We decision, reverse circuit court’s and remand for further proceedings.

Appellant three concurrent terms of serving life imprisonment plea-based for her convictions of one count of murder and two counts second-degree In 1994, assault with intent to commit murder. public required by Parole held a hearing Board to determine 791.234(6)(b); 28.2304(6)(b) parole appellant. Appellant’s case might whether many supporters be as a cause celebre. Her described 226 gave testimony submitted letters and at the hearing urging grant parole. the Parole Board to Their testimony appellant put established that her tal- has industry prison. ents and to extensive use while Appellant college degrees high earned with honors prestigious literary received award. She was religious programs prisoners, active in social and for ground-breaking and involved herself in a federal law- opportunities suit that has enhanced for the female inmates of this However, state.1 relatives and friends community victims, members, as well as opposed parole for reasons, various not the least they being tragic experienced loss had as a result appellant’s acts. August 1994, the Parole Board denied appellant with this statement: positions

After full consideration of the taken those testifying public hearing at the and consideration of the adjustment, prisoner, attitude and behavior of the proceeding Board withdraws interest toward at this time. You will next be interviewed years your Parole Board five from most recent interview as indicated in the official date above. appeal, appellant’s

On the circuit court denied motion for reversal and affirmed the decision of the Parole Board. The circuit court held that was not entitled to a detailed written statement of the denying Parole Board’s reason for The circuit statutory court also determined that the amendment increasing the interval between interviews for prisoners sentenced to life terms did not

pertinent Glover v part Johnson, 934 F2d 721 F (CA 1991). Supp 6, (ED Mich, 1989), aff’d in Parole of Glover Opinion Court violate the Ex Post Facto Clauses of the state Also, federal constitutions. the circuit court con- Open cluded that the Parole Board did not violate the Act, seq.) MCL 15.261 et MSA Meetings 4.1800(11) et seq., making its decision an informal, closed session.

i appeal, appellant On first contends that the Parole required sufficiently Board was to make detailed find- ings of fact and conclusions to enable the reviewing court to in an engage adequate, meaningful review of deny parole. the Parole Board’s decision to We agree. MCL 791.234(6); MSA 28.2304(6), so-called law,” governs parole “lifer prison- determinations for ers serving life terms and provides, as pertinent:

(6) prisoner A under sentence for life . . . other than a prisoner degree sentenced for life for murder the first .. . years who has served 10 calendar of the sentence in prisoner case of a sentenced for crime committed before subject jurisdiction October 1992 ... is to the may parole by board and be released on subject board, following to the conditions: (a) One member of the board shall interview the prisoner years at the conclusion of 10 calendar of the sen- every years tence and thereafter until such time as the prisoner paroled, discharged, or deceased. The interview prescribed applies prison- schedule this subdivision to all applicable, ers to whom this subsection is whether sen- before, on, tenced or after the effective date of the 1992 amendatory act that amended this subdivision.

(b) parole granted prisoner A shall not be so sentenced prescribed hearing until after a held in the manner pardons 791.244(2)(f); for and commutations in [MCL 28.2314(2)(f) 791.244(2)(h); 28.2314(2)(h) to MCL App 660 226 Mich 655 Opinion of the Court 791.245; hear- and MCL MSA Notice of the 28.2315]. sentencing judge, judge’s ing given or the shall be office, granted if the successor shall not be office, sentencing judge, judge’s or the successor files objections granting written to the of the within 30 days receipt hearing. The written of the of the notice of objections part prisoner’s file. shall be made of the county In turn, prisoner, prosecutor a prisoner committed, from which the was or victim may county appeal by leave to the circuit court of the prisoner from was the Parole which the committed grant deny parole. Board’s decision to or MCL 791.234(7); 28.2304(7). MSA The Parole Board’s deci- sion is reviewed for an abuse of dis- regarding cretion. 7.104(D)(5)(b); 791.234(7); MCR MSA App 219 28.2304(7); Johnson, re Parole Mich 595, 597-598; Generally, 556 NW2d 899 an (1996). unprejudiced abuse of is found an discretion where person, upon the facts the decision considering which say acted, justification maker would there was no or excuse People Lugo, for the decision made. See Mich App 699, 709; (1995). 542 NW2d 921 This deter- mination light is to be made of the record statutory requirements the Parole Board’s limiting Johnson, supra decision. Co Prosecu- Wayne tor v NW2d Bd, 148, 153; Parole (1995). pivotal question is whether the Parole Board

should required give written, par- be some sort of explanation deny parole ticularized of its decision prisoner sentence, to a with a life some- thing which the board contends it does not have to explicitly pro- do. MCL 791.234(7); 28.2304(7) vides for circuit court review of the Parole Board’s prisoners, concerning such but does not decisions reviewing indicate how the court is to evaluate the upon which the record Parole Board acted. Else- 28.2305(12) where, however, MCL requires provide prisoner the board to with a “writ- parole] [of ten of the reason for denial appropriate, specific and, if recommendations for cor- prisoner may rective action the take to facilitate statutory construction, release.” As rule of statutes subject relating sharing to the same common pari purpose together materia and must be are read they if one, even contain no reference to one and were another enacted on different dates. State App Schuster, 347, 352; Treasurer v 215 Mich object pari (1996). NW2d332 of the “in materia” purpose give Legislature rule is to effect to the of the subject. as derived a from harmonious statutes on Jennings Southwood, 125, 137; v 446 Mich 521 NW2d (1994). If the two lend statutes themselves to avoiding construction conflict, construction supra. Treasurer, should control. State 791.234; Both MCL MSA 791.235; 28.2304 and MCL pertain MSA 28.2305 However, because prisoners 791.235; 28.2305 concerns who eligible serving become for after the minimum prison term of an indeterminate sentence, it is obvi- Legislature ous that has created different processes prisoners serving for life serving sentences and those indeterminate sentences. explanation” requirement The “written of MCL part 28.2305(12) process prisoners serving for who are not fife express sentences. The mention in a statute of one implies thing things. the exclusion of other similar App 226 App Gracey Wayne 412, Clerk, 420; Co 213 Mich (1995). considerations, Mindful of these NW2d 710 pari say are in we cannot that these two statutes together as in view of materia and must be read one persons the classes of the distinction between applies. reject appellant’s Therefore, we whom each explanation argument that she is entitled to written Board’s decision virtue of MCL of the Parole 28.2305(12). 791.235(12); MSA may statutorily not be to a While entitled the Parole written of Board’s decision protection parole, her she is entitled to under the Due Process Clause of the United States Constitu- “applies government deprives tion, which when action liberty property.” person Const, of or See US Am XIV; Greenholtz v Inmates the Nebraska Penal & Complex, 2100; Correctional 442 US 99 S Ct 60 L Appellant protec- (1979). Ed 2d 668 is also entitled to Michigan tion under the Due Process Clause of the provides § Constitution, 1963, 1, Const art which deprived liberty person shall . . . “[n]o life, be property, law.” without due Johnson v Wayne Co, 143, 155; 540 NW2d 66 applicability (1995) (Jansen, J.). To determine the Due situation, the Process Clause to the instant we appellant pro- must first determine whether has a liberty attaining tectible interest in her conditional parole. supra Greenholtz, Next, release on at 7. appellant determine whether is entitled to a written regarding from the Parole Board its process protection, decision as due we must (1) private consider and balance three factors: governmental (2) action, interests affected deprivation private risk of erroneous interest procedures through used, (3) govern- interest, ment’s including the function at issue and the increased fiscal and administrative burdens caused imposition procedural of the additional requirement. Dep’t Lassiter v Services, Social 452 US 18, 27; 101 2153; S Ct 68 L Ed 2d 640 (1981); Mathews v Eldridge, 319, 424 US 335; 893; 96 S Ct 47 L Ed 2d 18 (1976); People Sierb, v App 127, 134; NW2d 728 (1996). We find that considerations of fair- ness and process due appellant entitle to a written explanation by the Parole Board of its decision to parole. her respect

With to the part first inquiiy, our we find appellant has a protectible liberty interest attaining her release on pro- obtain a “[T]o tectible right person ‘a clearly must have more than an abstract need or desire for it. He must [or she] have more than a expectation unilateral of it. He [or must, instead, have a legitimate claim of she] entitle- ” to it.’ Greenholtz, supra at 7 (quoting Bd of ment Regents Roth, US 570-571; 92 S Ct L Ed 2d 548 Greenholtz, supra [1972]). a15, plaintiff case which the argued, inmates much like here, due required Nebraska Parole Board “to specify particular ‘evi- dence’ the inmate’s file or at upon his interview which discretionary rests the determination that an ready inmate is not for release,” major- conditional ity justices rejected the argument plaintiffs that the did not have a legitimate claim of entitlement their attaining release on on the basis that Nebraska provided possibility had for parole by enacting comprehensive statutory parole scheme. Id. majority at 11. The stated:

Opinion of the Court parole provides possibility holds out the That the state hope that the benefit will be obtained. no more than a mere general interests asserted here is no To that extent hope that he will not be substantial than the inmate’s more prison, hope pro- is not to a another which transferred process. (emphasis original; in citations tected due [Id. omitted).] majority distinguished

Thus, Greenholtz parole which remained an amor- release, between hope prisoners, phous eligible rev- to even Supreme pre- regarding which the Court had ocation, viously gained determined that offenders who had their freedom from incarceration conditional liberty parole release had a interest in continued free- dom, which could not be terminated without ade- protection. quate Morrissey See due Brewer, 471, 480-484; 408 US 92 S Ct 33 L Ed 2d (1972). majority find, The Greenholtz went on to unique provision however, that a of Nebraska law— provided “[w]henever which the Board of Parole considers the release of a committed offender who is parole, eligible for release on it shall order his release” unless the Board of Parole determined that any pres- deferring

one of four reasons for was sufficiently particular ent case—created a defi- expectation parole-eligible prison- nite release for protection. ers that was Id. entitled constitutional at 11. Michigan

Here, law, law unlike Nebraska contains provision effectively analogous guarantees no prisoners eligible negative absent certain carefully statutory factors. Pursuant written always Michigan scheme, is, been, and has discretionary highly matter for the Parole Board’s In re Glover Legislature recognized Indeed, determination. potential problems discretionary inherent in such a statutory by allowing scheme for the creation of parole guidelines “govern the exercise of the pris- parole board’s discretion ... as to the release of parole.” 791.233e(l); on See MCL oners 28.2303(6)(1); supra at Johnson, In re Parole 598- of guide- However, 599. even with the enactment of the attempted impart objective lines, which some stan- parole determinations, dards to the Parole Board’s id. “may depart the Parole Board still from the 599, by prisoner parole guideline denying parole a [sic] probability parole high has a of as determined who parole guidelines granting parole to a under the prisoner probability who has a low as deter- parole guidelines.” 791.233e(l); mined under the quite 28.2303(6)(1). clear that is It procedural protection to scant under the entitled existing statutory especially scheme, because a she is lifer. rejected by majority justices,

Although a and fur- disparaged by panel People ther a of this Court in Malmquist, App 155Mich 400 NW2d317 521, 524-525; hereby adopt (1986), reasoning we and conclu- justices minority in Greenholtz, sion of the led Marshall, Justice possess liberty is self-evident that all individuals a inter- [i]t physical Upon being

est free from restraint. conviction crime, course, may deprived for a an individual be of this liberty by penal But when to the extent authorized statutes. system, possibility a State enacts a and creates the upon satisfaction of certain of release from incarceration conditions, necessarily qualifies deprivation. that initial it my system judgment, it is the existence of this which allows prison protected securing inmates to retain their interest 226 prison. freedoms available outside Because release clearly implicate liberty proceedings interest, this retained requires the Fourteenth Amendment that due be observed, irrespective specific provisions in the applicable parole (Marshall, J., statute. US 23 [444 dissenting).2] adopt We this conclusion for several First, reasons. like the Greenholtz minority, we believe that the dif- ference a deprivation between of a liberty interest presently enjoyed denial of a liberty desired constitutionally interest is not significant: currently enjoys particular Whether an individual free- bearing possesses protected dom has no on whether he securing maintaining liberty. interest in The Court acknowledged as much in v McDonnell US [418 Wolff 557-558; 94 Ct (1974)], S 41 L Ed 2d 935 when it held good-time implicates liberty that the loss of credits inter- though only deprived prisoner est even the forfeiture the expected freedom he to obtain sometime hence. US [442 26.]

Further, we see no principled upon basis which to distinguish between the two allegedly different inter- ests because (1) potential the parole results process parole revocation and the process release are concurring opinion Greenholtz, See also Justice PoweE’s supra: adopts parole system appHes general a State [W]hen that stan- eEgibiEty, prisoners justifiably expect parole dards of wiE be granted fairly according and to law whenever those standards are governing states, here, met. This is so whether the statute as granted exist, pro- “shaE” be unless certain conditions making Contrary vides some other standard for decision. [majority’s] presence to the ... I conclusion am convinced that the parole system Eberty interest, pro- of a is sufficient to create a Constitution, parole-release tected in the decision. US [442 (citation omitted).] same, i.e., conditional freedom or incarcer- largely ation; majority the Greenholtz distin- (2) although between the relative levels of discretion exer- guished determining cised the Parole Board in whether to parole, necessarily revoke a decision that involves an essentially fact-based, post analysis, hoc or to grant essentially which involves an parole, predictive, sub- jective analysis, relationship there is no between the nature of the interest involved and the nature of the decisional used to terminate the interest. 444 Lastly, perhaps US 27-28. most significantly, holding majority effectively of the Greenholtz ignored reality that the success of penal sys- the modem tem greatly depends availability on the for prisoners most serving time for offenses. Id. at “Hence, 29-31. ... it is ... specu- unrealistic late that a parole system provides existence of prisoners ‘no more than a hope’ mere of release.” Id. at 31. Accordingly, pro- we find that has a liberty early tected in gaining interest release on Having determination, reached this we must con- process protections sider whether due require the provide appellant, parol- Parole Board to and other lifers, able with a written of the reasons parole. First, for the denial of the balancing test requires private us to evaluate the interest at stake Lassiter, supra Parole Board’s determination. 27. To appellant’s characterize interest less than of the anything greatest importance would improvident. be

Second, we must evaluate the risk of erroneous deprivation appellant’s proce- interest through present dures used. Id. Under the circumstances 226 Opinion Court parole process lifers, we find used for deprivation grave indeed. to be the risk of erroneous Proceduraily, the Parole Board has decided to once parole, public hearing regarding the hold a issue already decided, on the basis of the board has prisoner’s file and an interview with review of the be inmate, that should recommended. 791.234(6)(b); 28.2304(6)(b); Middleton v MCL (On Remand), App 563, 567; Parole Bd (1995). NW2d 791 In the instant case—where the already Parole Board had decided on the basis of objective good parole standards that was a public hearing candidate, held, a contentious was after which the board reversed its assessment of parole prospects appellant’s with no —the potential Additionally, for public is evident. the fact error pursuant hearing conducted evidentiary 791.244(2)(h); rules, relaxed 28.2314(2)(h), that the increases the risk deci- will evidence. sion be influenced unreliable Moreo- by granting parolable prosecu- ver, lifers, victims, and appeal right tors the the decisions of the Parole obviously Legislature recognized Board, potential process sought pro- for error against tect it.

By requiring writing the Parole Board to state its denying parole,3 reasons for the risk of erroneous appellant’s concerning In the face of a mountain of information cor abjured history, any meaningful explana rectional the Parole Board here tion. It indicated that it considered all the information before it and decided to “withdraw” interest in or consideration of In other words, Attorney suggested during argu thumbs down. oral General panel ment before this that we should undertake the review by examining exhibits, reading led the Parole Board to its decision all the testimony, briefs, deciding all the and records and on that basis whether review; the board had abused its discretion. That is not a it invites instead Parole

deprivation parolable lifer’s interest parole will obtaining be reduced. Requiring such an explanation will encourage adherence to and the guidelines objectivity standard of embodied therein. It will that guarantee decision is made on the basis of competent, reliable information. Most importantly, requiring a statement of reasons will greatly proper facilitate review of the board’s decision and guarantee parole process that the is con- ducted with consistency. fairness and This Court has expertise neither nor the resources to conduct review de novo of the reams of documentation gener- pursuant parole process ated to the set forth in MCL 28.2304(6). Once the Parole Board job does its appropriate explication, with meaningful review can follow.

Finally, required we are govern- evaluate the ment’s interests, including the function at issue and the increased fiscal and administrative burden caused imposition of an requirement. additional supra Lassiter, 27. government’s It is inter- require est to the Parole provide Board to a written explanation its decision to lifers who are necessarily denied This conclusion follows from our determinations the written- explanation requirement will enhance the Parole ability Board’s to arrive at determinations public’s interest, are in the best and that such a post justification unqualified facto of a decision that we are to make at 92,” the outset. The Parole Board did indicate a “reason code of which ref- ers to the “lifer law interview.” We take that to mean that the Parole job Board considered its to conduct an interview of the because to, grant parole, gave it had declined to no reasons because it need passes not. We do not think that federal or state due constitu- tional muster. Opinion the Court reviewing greatly requirement aid the courts will administra- Further, the Board’s decisions. the Parole expense presented a written- tive burden great. explanation requirement are not already provide for a written Board must prisoners majority parole to a vast denial of its early imposing release, and this are denied who very parolable requirement will lifers who for the few stage past get will not sub- the initial-interview ever procedural pro- stantially This burden the fisc. merely requires to distill and record the board tection already fully supporting a that it has reasons decision daunting discussed, no means evaluated task.

Accordingly, that, with due we conclude consistent required the Parole Board is considerations, parolable provide lifers who are denied explanation of the reasons for its decision. written appellant’s “adjustment, Simply stating attitude and behavior” militate in favor of a withdrawal of interest in is not sufficient to allow for mean- appellate ingful review of the Parole Board’s decision. explanation available, Until some we are unable to appellant’s appeal, i.e., address second issue on deny whether the decision to her constituted an abuse of the Parole Board’s discretion. Accord- ingly, we this matter to the Parole Board for remand an of its decision to jurisdiction abeyance We retain hold pending consideration of the merits review of the explanation. board’s re Parole

n Next, statutory appellant contends that a amend- ment interval between inter- increasing prisoners sentences, views for life serving 181, 1992 PA MCL 791.234(4)(a); 28.2304(4)(a), now 791.234(6)(a); 28.2304(6)(a), violated the Ex Post Clauses federal Facto of the and state Const, I, 1, constitutions. US art Const 10; 1963, art § 10. agree. § We do not

A prosecution disposition statute that affects the of criminal involving cases crimes committed before the effective date statute violates the Ex Post Facto if it (1) punishable Clauses makes that which not, was an (2) makes act a more serious criminal offense, (3) punishment, increases the or (4) allows prosecution to convict on less evidence. v Riley Bd, Mich App 242, 244; 548 NW2d 686 (1996). Constitutional issues issues are of law that we appeal. People review de novo on Pitts, NW2d 93 (1997). panel

A of this Court considered related issue in Riley, supra here, at 244-245. There, plaintiff the had been convicted and sentenced life imprisonment before the when “lifer law” stated, as relevant:

(4) prisoner A under . .. sentence for life who has served years subject jurisdic- 10 calendar of the sentence is the parole may parole by tion of board and on be released subject board, following to the conditions: (a) One member of the shall board interview the prisoner years at the conclusion of 4 calendar of the sen- biennially tence and thereafter. [MCL 28.2304(4).] 4(a), Legislature subsection amended 1992, the

In 6(a), lifers to state that subsection which became would still come 1, 1992, October before convicted serving jurisdiction ten after the Parole Board’s under provided years sentence, but of their calendar prisoner at shall interview Board member years sentence of the of ten calendar the conclusion changing every years the tim- thereafter, thus five Riley, ing initial interview. Parole Board’s of the timing change holding supra that this at 245. Riley panel post facto, the stated: ex was not changes timing Although amended statute parole hearings, plaintiff’s eligibility for is unaffected timing of the first challenged statute. Because the plaintiff’s rights, we find hearing affect substantive does not that addresses version of the “lifer law” that the amended [] the Ex Post Facto eligibility for does not violate Michigan Constitutions. and United States Clauses of the [Id. 245-246.]

Although whether framed her issue as has frequency Parole Board interviews the decrease years biennially every the Ex five violates from constitu- of the state and federal Post Facto Clauses timing change and not tions, whether Riley panel’s unconstitutional, the interview is first Riley applicable equally reasoning here. As panel were not Ex Post Facto Clauses stated, the legislative remedies and limit control of intended to procedures effect; rather, that have no substantive personal they substantial intended to secure were arbitrary legislation. oppressive rights against Id. procedural changes, though dis- Hence, at 244. mere People post advantageous, Russo, facto. are not ex Riley, (1992); NW2d 698 584, 592-593; 673 Opinion of the Court supra. Despite 1992 of amendment MCL merely 28.2304(6) changed the procedure by which the Parole Board conducts interviews, successive appellant, as before years remained for after eligible serving ten of her life term. legislative Because the change merely was procedural and did not appellant’s affect substantive rights, post it was not ex facto.

Lastly, appellant contends the Parole Board Open violated the et Meetings Act MCL 15.261 (oma), seq.; et seq., 4.1800(11) making its final deci- sion her without notice of the proceedings and in a closed, voting proce- informal agree. dure. We

The OMA “All provides, body decisions a public of shall be at a open public.” made meeting v 4.1800(13)(2); Moore Fennville Bd 15.263(2); MSA Ed, App 196, Mich 566 NW2d lv (1979), pending. purpose provide the OMA public with a fuller disclosure of govern- the acts of ment officials. In light broadly of this purpose, we interpret provisions strictly the oma con- Federated exemptions. strue its Publications, Inc Michigan Trustees, State Bd Univ 221 Mich App 103, 112, 116; 561 NW2d (1997).

The oma “public body” defines a any legislative body, state or governing including local or board, commission, committee, subcommittee, authority, or council, empowered by constitution, statute, which is state charter, ordinance, resolution, govern- rule or to exercise proprietary authority perform governmental mental or or proprietary function, performing or a lessee thereof an public purpose pursuant essential and function to the lease 226 (emphasis 4.1800(12)(a) 15.262(a); agreement. MSA [MCL added).] defines “decision” 4.1800(12)(d)

MCL MSA 15.262(d); as upon vote, disposition motion, determination, action, or a a recommendation, order, ordinance, resolution,

proposal, by public bill, of a on which a vote members or measure body body required by public which a effectuates or and public policy. formulates is clear unam-

Where the of statute and language judicial neither nec- generally construction is biguous, Motor permitted. Co, nor v Ford essary Lorencz By NW2d 844 its clear and 370, (1992). Mich 376; the applies the oma decisions unambiguous terms, body” purposes for the Board, “public the Parole of the or grant OMA, Appellee however, Legislature the man- argues, that exempt its the Parole Board from the ifested intent to MCL requirements amending 791.202(2); of the OMA MCL 1987, MSA Before amendment 28.2272(2). 791.202(2); 28.2272(2) stated: [Michigan

The business which the Corrections Commis- may perform be or the board shall conducted sion] compliance meeting held in with Pub- [the oma]. time, date, place meeting notice of the shall lic required by given be manner the [the oma]. MCL 1987, Legislature 791.202(2); the amended its the deleting language concerning

MSA 28.2272(2), 79. Parole Board. 1987 PA appellee’s contention that the disagree

We with 28.2272(2) amendment effectively Board from the exempted Parole Glover

requirements of OMA. Although Legislature amended MCL 791.202(2); MSA it not 28.2272(2), did enact we changes might interpret OMA requirements. the Parole Board from exempting its Legislative statutory intent is the lodestar of interpre- People Adair, tation. 550 NW2d presume We (1996). had Legislature existing subject laws knowledge regarding a when amended a law. Stevens v Inland it enacted Waters, Inc, App 212, 219; 559 NW2d 61 Thus, (1996). Legislature was aware its that, applied clear terms, to the Parole Board and OMA its decisions, knew that did not OMA explicitly exclude purview. the Parole Board from its See MCL MSA 15.263(7)-(11); 4.1800(13) (7)-(ll). Moreover, the Legislature presumed to have been aware of this broad application Court’s of the OMA and exemptions strict construction of its it when amended MCL 791.202(2); 28.2272(2) merely MSA to exclude v language the Parole Glancy concerning Board. Roseville, App 390, Mich 394; 549 NW2d 78 (1996). light of these considerations, we are una- to ble discern a legislative clear intent exempt the public Parole Board and its decisions from the meet- ing requirements and notice of the OMA from Leg- the islature’s mere amendment 791.202(2); of MCL 28.2272(2). Accordingly, we conclude that the Parole Board violated the OMA when it made its deci- sion a closed meeting providing public without the with notice of its action.

A party seeking an invalidation of a decision a public body violation of allege the must a vio- OMA lation of the act that impaired this violation Wilkins Gagliardi, public. of rights App (1996). The mere recital 275; 556 NW2d public rights alleging language is not a violation of of present plaintiff must factual Rather, sufficient. support rights allegations that the the conclusion impaired public the failure to hold a were of meeting compliance public Id. with oma. request appellant not that we invalidate does Here, deny parole. her Parole Board to the decision this matter to the asks us to remand Rather, she may public formal, Parole Board so it conduct that deny meeting regarding her its decision to necessary agree remand is so While we may supply appellant a written Parole Board with denying its in accor reasons for 28.2305(12), we dance with directing its refrain the board reconsider from public meeting. formal, decision in appellant’s Parole decision on Board reached copious parole, did with the benefit so By testimony against appellant’s both for and release. supplying with a written document mean regard ingfully detailing findings its and conclusions ing parole, Board will its decision to any impairment public rights have result remedied ing make final decision in from its failure to its compliance Board has with the OMA. While the Parole it have a violation of the will served committed OMA, by purpose fully disclosing of the act the reason deny appellant. ing behind its decision to supra; Publications, Wilkins, See see also Federated supra.

The reversed and decision of the circuit court is is action the Parole this matter remanded for Glover of Opinion by Gage, J. opinion. Board consistent with this We retain jurisdiction.

Wahls, J., concurred. part and (concurring dissenting in

Gage, J. respectfully firmly I but i part). parts dissent to and m majority opinion. part of the I concur n. majority notes, appellant As the is serving three imprisonment concurrent terms life for her convic- tions of one of second-degree count murder and two counts assault with intent to commit murder. Not majority evident from the opinion is the fact appellant acted principal as a in the offenses enter- ing money the crime scene alone stealing from the cash register. Moreover, she hid the murder on weapon premises and later retrieved it from its hiding place. people Three shot were in the incident, and two died.

I note, only also because majority fails men- tion it, appellant has also been guilty found some misconduct violations while imprisoned, appar- ently for being place.” In addition, she “[o]ut received two sexual misconduct determinations, appellant although apparently denied these charges.

i Agreeing that appellant sympathetic overall unusual candidate, I must nonetheless write that I adamantly disagree with I part majority opinion. majority finds, first I correctly, believe applicable statutory that the scheme does not entitle to a written of the Parole Board’s decision her parole. However, some- what inexplicably, majority then adopts a dissent 678 655 Opinion by Gage, J. jus- Supreme Court case to States from a 1979United appellant protectible tify lib- has a its that conclusion erty attaining conditional release on her interest gives pro- protectible parole, due rise to interest this therefore entitlements, the Parole Board cess appellant providing awith discretion in not abused its denying explanation for her written more detailed parole. Adding is incredibleness to what I believe the majority’s the that the issue conclusion is fact of process appellant was denied due under whether state constitu- federal constitution either the by the court tion not decided circuit was opin- and whose decision, affirmed the Parole Board’s appellant did not raise review, we because ion now does raise the due before them. Nor she issue question process Rather, before Court. issue this appellant due whether has been denied entirely filed with this to an amicus brief confined Court. appellant’s

Having this chosen decide issue majority process analysis, utilizing favor a due liberty protectible has a must find that attaining interest in majority her release on As the protectible right per- ‘a notes, “[T]o obtain clearly must have more than an abstract need or son have more than a unilateral desire for it. He must expectation legitimate He must, instead, of it. have ” it.’ Greenholtz v Inmates claim entitlement to Complex, Penal & Correctional 442 US Nebraska (quoting (1979) 2100; 99 Ct 60 L Ed 2d Bd 7; S Regents S Ct Roth, 564, 570-571; 408 US majority [1972]). Greenholtz, L Ed 2d justices Supreme “That the concluded, Court state parole provides possibility of no more holds out the Gage, J. Opinion than a mere hope benefit will be obtained, a hope protected by ... which is not due process.” Id. (emphasis at 11 in original). pub- At least one opinion lished of this Court has recognized the view- the Greenholtz point See Peo- expressed majority. ple Malmquist, App 521, 524; 400 NW2d 317 (1986).

Notwithstanding the unambiguous holding from the United States Supreme Court and its recognition by a prior panel Court, of this majority adopts of minority justices conclusion a in Greenholtz if a prison state has enacted a parole system, inmates protected retain a interest in securing their freedom through utilizing system, and therefore pro- due cess must be observed during proceed- release ings. Greenholtz, supra (Marshall, J., dissenting).

I simply agree cannot with adoption. this Although I recognize Malmquist opinion that the is not binding on this panel, good law, it still I and would follow holding its as well as the reasoning and conclusion of majority justices of the in Greenholtz, supra, who held that “there is no constitutional or right inherent aof person convicted to conditionally be released before the a expiration of valid sentence.” Id. at 7.

n I concur in reasoning part and conclusion of n majority opinion. of the

m majority The also finds that the Parole Board vio- Open lated the (oma), MCL 15.261 et Act Meetings seq.; MSA 4.1800(11) seq., by making et its final deci- App Mich Opinion by Gage, J. deny appellant parole without notice of

sion to voting proceedings closed, informal a the procedure. by majority and unam- The finds that clear applies biguous of the terms, the oma decisions deny parole. disagree. grant Board to I exempt Legislature manifested its intent board requirements amending from oma language 28.2272(2) deleting in 1987 and all MSA concerning Moreover, the Parole Board. 1987 PA 79. prisoner right serving a a life sentence has no public hearing the Parole Board’s decision to absent (On Remand), 208 hold Middleton v Parole Bd one. (1995). 563, 568; 528 NW2d 791 not has conclusion, I do believe that statutory pro- mandate or demonstrated either process guarantees due tectible interest covered her more to a detailed entitles behind the Parole Board’s denial reasons decision vio- Nor do I believe that Parole Board’s order, oma. I would affirm the circuit court lated the appellant’s which denies motion reverse Board’s decision.

Case Details

Case Name: In Re Parole of Glover

Court Name: Michigan Court of Appeals

Date Published: Mar 10, 1998

Citation: 575 N.W.2d 772

Docket Number: Docket 189303

Court Abbreviation: Mich. Ct. App.