*1 App 532 100 Mich PENN v DEPARTMENT OF CORRECTIONS 1980, 7, Lansing. May 46568. at No. Submitted Docket Decided 7, appeal applied for. Leave to 1980. October attempted larceny person from a Patrick Penn was convicted of parole prison. on sentenced He was released was Following parole subsequently a was arrested violation. parole hearipg, parole Plaintiff then violation his was revoked. challenging parole decision. brought board’s an action Noble, Court, J., the suit Russell E. dismissed Jackson Circuit subject jurisdiction. ground Plain- that it lacked matter on the dismissing alleging appeals, the trial court erred in tiff jurisdic- subject complaint matter on the lacked tion, of Corrections which conducted the since apply- hearing "agency” purposes is an revocation Act, ing which act endowed him the Administrative Procedures right appeal circuit court. Held: with a to the holding subject that it matter trial court erred in lacked jurisdiction of Correc- over defendant’s case. purposes applying "agency” an Administra- tions is Act, right of tive which for a review of dealing agency with the determina- decisions contested cases legal right, privilege. duty, tion A of a case, liberty being, parolee’s at interest is such a privilege, potential of which an termination Thus, process guarantees. to due adherence jurisdiction in the circuit over matter vested court the Administrative Procedures Act. and remanded. Reversed Kelly, J., separately, noting problem M. J. concurred [4] [5, 2 Am Jur [7, 2 Am Jur [2-4] [8] [1] 73 Am Jur 2 Am Jur 8] 6] Effect 2 Am Jur 1 Am Jur 2 Am of court review administrative Jur 2d, 2d, 2d, 2d, 2d, 2d, 2d, References Administrative Law 204. Administrative Law 8.§ Administrative Law 206. Statutes 145. Administrative Law Administrative Law 556. § for Points in Headnotes Law § § § §§ § 204. decision. 78 ALR2d 732. 1141. parallel both under the Administra- tive Procedures Act and the Revised Judicature Act. He would exemption consider the from circuit court review afforded the agencies those from or other *2 judicial by has review otherwise been for law the Revised Act Judicature and would hold that since the Adminis- provides trative Procedures Act for review of decisions of the Department Corrections, provided by of circuit court review as the is any Revised Judicature Act not available for case which Department the decided after the enactment of the Administra- tive Procedures Act.
Opinion Court — — 1. Administrative Law Administrative Procedures Act De- partment — — of Corrections Criminal Law Statutes. Department purposes of Corrections is an (MCL 24.203[2]; Act Administrative Procedures of 1969 MSA 3.560[103][2]). — — 2. Administrative Law Administrative Procedures Act Disciplinary Proceedings — — Prison Stat- Criminal Law utes. disciplinary proceedings Prison are contested cases under the provisions of the Administrative Procedures Act of re- quiring Department of Corrections make a determination duties, legal rights, privileges, of an inmate’s or and due process requires given opportunity that the inmate be for an (MCL evidentiary 24.203[3]; 3.560[103][3]). MSA — — 3. Administrative Law Administrative Procedures Pa- Act Proceedings — — role Revocation Criminal Law Statutes. parolee’s liberty privilege, potential A interest is at least a Department termination of which of Corrections re- quires and, thus, process guarantees, adherence due case, proceeding revocation as a characterized contested triggering application Administrative Procedures Act (MCL24.203[3]; 3.560[103][3]). — — 4. Law Administrative Administrative Procedures Act Judi- Legislative — cial Review of Administrative In- Decisions — — tent Criminal Law Statutes. Legislature portion intended that that of the Administrative pertaining judicial Procedures Act review of administrative hearings decisions should Correc- (MCL24.301, seq.; seq.). 3.560[201], tions et et App — — 5. Administrative De- Procedures Act Administrative Law — — partment Judicial Review Decisions —Law Statutes. Criminal prisoner aggrieved by decision order A a final petition file a officer of the judicial to that section of the decision providing judicial Act review of Procedures Administrative (MCL 24.301, 791.255; 3.560[201], administrative decisions 28.2320[55]). — — Pa- Procedures Act 6. Law Administrative Administrative Proceedings — — Process Judicial Due role Revocation — Review Criminal Law. availability process, Due at a proceedings, Administra- review of proper for such framework tive Procedures Act review. — —
7. Administrative Pa- Law — — — Law Judi- Jurisdiction Criminal role Revocation — cial Review Statutes. *3 a trial court with the Procedures Act vests The Administrative entirety seeking necessary jurisdiction to hear in its a cause judicial review of a decision (MCL parole 24.303[1]; revoking MSA a defendant’s 3.560[203][1]). M. J. — — De- Procedures Act 8. Administrative Law — partment — Judicial Review of Corrections Decisions —Law Statutes. Criminal applies to decisions The Administrative Procedures Act Corrections, and, thus, Department of that section of the Re- provides for circuit court review of vised Judicature Act which from which decisions administrative bodies other review has not otherwise been Department of Correc- law to decisions of the does tions, alter- since Administrative Procedures review, exempting thereby nate of the Administrative Corrections made after the enactment provided by the Act from the circuit court 27A.631, (MCL 600.631, 791.255;MSA Revised Judicature Act 28.2320[55j). Penn Opinion op the Court Bennett, P. E. Assistant Appellate State De- fender, for plaintiff.
Frank J. Kelley, Attorney General, Robert A. Derengoski, General, Solicitor and Thomas L. Ca- sey, General, Attorney Assistant for defendant. Kelly Cynar, P.J.,
Before: and M. J. and T. Gillespie,* JJ.
Cynar, Plaintiff, P.J. seeking judicial review of parole, the revocation of brought this action in Jackson County Circuit Court to MCL 3.560(101) seq.; seq. et 24.201 et and MCL 600.631; Following hearing, MSA 27A.631. the suit on the trial court dismissed lacked over matter appeals right. Plaintiff the action. Plaintiff had attempted been convicted of lar- ceny person, from a 750.357; 28.589, 28.287, and MCL and was sentenced to 1-1/2 5 years imprisonment. Approximately six months after being incarcerated, plaintiff was parole released on to Jackson less County. Slightly than months being after on parole, released plaintiff was arrested for parole violation. Three arrest, weeks after his a parole violation held, following was board issued revoking decision plaintiff’s parole. sought Plaintiff challenge board’s decision grounds: on three
1. The prelimi- board’s failure to hold prompt nary hearing after *4 to a plaintiff’s arrest amounted process denial of due equal protection. and 2. Since only two board the members attended hearing, the did not the require- meet judge, sitting Appeals assignment.
* Circuit on the Court of App 100 Mich Opinion op the Court Pro- process of due and ments cedures Act. two plaintiff guilty of
3. the board found Since supported by parole violations which were to the board’s ex- contrary evidence were im- fact, parole findings plaintiff’s was pressed of properly revoked. that the trial court erred agrues
Plaintiff first complaint on the that dismissing matter court lacked con- Specifically, plaintiff parole board decision. is an that tends the Administra- purposes applying of "agency” therefore, (APA), that, tive governed of the are proceedings addition, APA plaintiff In contends that APA. of review of right cases, pro- revocation in contested dealing with the determina- ceedings type, are one privilege legal right, duty, tion contends that MCL parolee. Alternatively, plaintiff right 27A.631 endowed him with a court. pro- that argues Defendant cases, no since there is ceedings are not contested and, moreover, pa- actions right parole, Finally, exclusively discretionary. board are role proper remedy plaintiff’s claims defendant was mandamus. is beyond question
It "agency” purposes Corrections, APA. Lawrence lv den (1979), 167, 169-170; NW2d 554 App (1979), In an Mich 909 and the cases cited therein. Lawrence context, held analogous the Court prison "contested disciplinary proceedings are APA, stating: provisions cases” under the *5 537 of Corrections Opinion or the Court "The definition of a 'contested case’ is clear and unambiguous. statutory provision in which we find requires neither construction interpretation. Ap- nor plication of plain language of the statute leads unalterably prison to the conclusion disciplinary that a hearing squarely fits within the terms of the definition. certainly Such a is proceeding a in which the Department of required is a make deter- as legal mination leges to an rights, inmate’s privi- duties or question process and there is no due requires given that tiary hearing. the inmate opportunity be an an eviden- McDonnel, 539; vWolff 418 US 94 S Ct 2963; (1974), L41 Ed 2d Wong Yang 935 Sung v McGrath, 33; (1950).” 445; US 70 S Ct L94 Ed 616 Id., 171. distinguish Defendant seeks to Lawrence on the prisoner right parole. basis that a has no As argues proceeding such, defendant in question here not a "contested case” under MCL 3.560(103)(3). 24.203(3); MSA We Con- disapee. rights, tested cases are those which determine privileges party. duties, or of a named 3.560(103)(3). 24.203(3); Morrissey Under Brewer, 471; 2593; US 92 S Ct 33 L Ed 2d (1972), beyond peradventure parolee’s it is that a liberty privilege, is, interest at potential termination of which process adherence to due guarantees. opinion, In our this is sufficient to proceeding characterize the a application triggering case, contested of the APA. It should also be in noted that the Court Law- part McDonnel, rence relied in on Wolff v 418 US (1974), 539; 2963; 94 Ct S 41 L Ed 2d for the proposition prison disciplinary proceeding that a legal rights, privileges duties, determined prisoner. Morrissey The Court in Wolff discussed distinguished the earlier case on the App 532 100 Mich op Opinion Court controlling interest greater had a state controlling a Court parolee. than in prisoner range procedures suggested full stated that need alleged violator Morrissey of miscon- accused prisoners adopted not be that, anything, plain- if appears It duct. therefore stronger argument plain- than here has the *6 tiff duties, or legal rights, his Lawrence in that tiff at the revocation being were determined privileges hearing. the existence trial relied on hear- parole revocation governing statute
specific 28.2310(1), 791.240a; and held that MSA MCL ings, repeal that expressly implicitly or the APA did not provides: The statute statute. parole prisoner has been days after
"Within penal institution under accusation to a state returned parole, other than conviction of a violation punishable by imprison- felony or misdemeanor for a prison jail, state or federal under any ment state, any States or other state of this United laws States, to he entitled territory United shall be or charges members of hearing a parole on such before Hearings shall conducted accor- be board. regulations adopted by the direc- dance with rules tor, given opportu- prisoner and the accused shall be to personally to counsel and answer nity appear with placed against him.” charges speak appellate review. The statute does power promulgate clear whether It is not regulations for the conduct of rules and to the complementary with or is inconsistent Legislature provisions. APA’s contested case has, began, since clarified matters this action 139, MCL 1979 PA which amended passage 3.560(215) 24.315; to read as follows: MSA Dep’t of Corrections Opinion op the Court "Chapters 4 apply shall not to the bureau of disability compensation worker’s or the worker’s dis- compensation ability board created Act No. 1969, amended, 317 of the being Public Acts 418.101 to Michigan sections Laws. by 418.941 of Compiled Chapter apply 4 shall not to a conducted corrections to chapter IIIA 1953, of Act 232 of being No. the Public Acts of sections 791.251 to Laws.” Michigan 791.255 of the Compiled 4, 3.560(171)
Chapter 24.271; MCL through 24.287; 3.560(187), MCL regulates procedures for hearings in contested Chapter cases. MCL 3.560(201) 24.301; MSA through 3.560(206), provides of contested cases. Legislature While the chap- ters and 6 not apply do disability worker’s compensation proceedings, only provided chapter 4 did not of Correc- hearings. tions Defendant would have this Court infer from chapter statute 6 never ap- plied to the Department hearings, *7 apparently on the that theory otherwise the Legis- lature would have it longer ap- that no plied. However, the Legisla- better view is that the ture thought chapter 6 applied and wanted it to continue to apply.
Moreover, 140, of 1979 PA MCL §55 28.2320(55), enacted to the trial subsequent matter, court’s decision in this provides: prisoner "A aggrieved aby final decision or order of a petition of officer or the file a for judicial the decision order chapter 6 of Act No. 306 the Public Acts of as amended, being Michigan section 24.301 to 24.306 of the added.) Compiled (Emphasis Laws.” Section 55 by applies its terms to final decisions of App 532 100 Mich M.J. Therefore, under Corrections. the law, 6 review available current chapter Lawrence, supra, the Court In parole revocation. its Legislature clarify invited the expressly APA. The applicability to the intentions some compromise: Legislature’s response was do not. Its APA and others parts what it had necessarily reflect actions did thus, mean; subsequent prior law intended scope as to legislation equivocal is at best of 1979 prior to the passage APA’s application PA 139. conclude, however, that consonant with
We supra, at a Morrissey, process, due dictates re- availability and that proceedings view in therefor proper framework APA provisions. 6 of chapter its finding we are constrained to In with this accord holding the trial court erred conclude matter of jurisdiction it over the lacked 24.303(1); find MCL dispute. We 3.560(203X1) in this action vests lower to hear the cause necessary jurisdiction with the thus, We, unnecessary find entirety. its 600.631; MSA 27A.631 would decide whether if APA invest the lower court with did not. below and
We the decision of the court reverse issues on the remand case for trial substantive invitation plaintiff. plaintiff’s raised We decline in this in the first instance to decide these issues Court.
Reversed and remanded. Gillespie, J.,
T.
concurred.
*8
(concurring).
Kelly,
I
M.
J.
concur
J.
Dep’t
by
M. J.
opinion,
majority
but write separately
to address
problem
of parallel
circuit court
jurisdiction
under both the Administrative
600.631;
MCL
MSA 27A.631. This statute
in its
form,
1975, provides:
amended
effective in
appeal
any order, decision,
"An
lie
shall
from
or
opinion
authorized under the laws of this
rules from which an
board, commission,
of any state
agency,
or
promulgate
state to
appeal
or
judicial
other
review has
law,
not
provided
otherwise been
to the circuit
county
appellant
court of the
of which the
is a resident
or to the circuit
shall have and
as in
Ingham
court of
County, which court
jurisdiction
respect
exercise
with
thereto
nonjury
appeals
Such
cases.
shall
made in
be
supreme
with
accordance
the rules of the
court.”
terms,
This provision,
its own
specifically ex-
empts from
court
review
those
agencies
from which an
other
review has
otherwise been
for by law.
Since the
enactment
the Administrative
Proce-
Act, however,
dures
its judicial
procedures
have applied to decisions of the Corrections,
Corrections. Lawrence v
den
167;
(1979),
Mich App
lv
I would unqualifiedly dismiss without consid- 600.631; eration the exemption embodied do 27A.631. To so lead to further im- proper assertions of circuit un- der statute in arising prior cases enact- 28.2320(55), ment of MCL provides: *9 App 100 J. M. order of by a final decision or prisoner aggrieved "A petition file a of the officer or to decision or order 1969, as of the Public Acts chapter 6 of Act No. 306 the Michi-
amended, 24.301 to 24.306 of being sections gan Compiled Laws.” above, this Court have found noted
As applicable Procedures prior of Corrections decisions even specific Administrative inclusion of application procedures. Due Act review MSA 27A.631 procedures, MCL provide available Adminis- after enactment case decided
any Procedures Act. trative