PARSHAY
v.
DEPARTMENT OF CORRECTIONS
Docket No. 19374.
Michigan Court of Appeals.
Decided on June 10, 1975.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jann C. Ryan, Assistant Attorney General, for defendant.
*678 Before: D.E. HOLBROOK, P.J., and BRONSON and M.J. KELLY, JJ.
D.E. HOLBROOK, P.J.
Plaintiff, a Marquette Prison inmate proceeding in mandamus, initially in propria persona, but now represented by appointed appellate counsel by order of this Court, seeks an order from this Court requiring the Department of Corrections to restore to him good time forfeited by the department. GCR 1963, 714.1(1); MCLA 600.4401; MSA 27A.4401.
Plaintiff has a substantial prison record and is a frequent litigant in this Court. His appellate proceedings are summarized in Parshay v Warden of Marquette Prison, 30 Mich. App. 556; 186 NW2d 859 (1971).
While an inmate in Jackson State Prison on June 25, 1966, plaintiff was involved in a fight with prison officers. Subsequently, he was convicted of felonious assault arising out of that fight in Jackson County Circuit Court. On September 27, 1966, he was sentenced to a 2 year, 10 month to 4 year sentence to be served consecutively to the sentences he was then serving. On October 5, 1966, the prison warden administratively forfeited 2 years, 8 months and 24 days of plaintiff's accumulated good time pursuant to the statute authorizing such forfeiture, MCLA 800.33; MSA 28.1403.
Under said statute and administrative regulation, BCF Regulation #10 (dated March 1, 1966), such forfeiture was initiated by the prison warden. No hearing was held in this instance, and that omission is the basis of plaintiff's request for relief.
It is our conclusion that there is only one issue raised herein, viz., did the procedures leading to the forfeiture of the prisoner-plaintiff's accumulated good time in 1966 violate constitutional due *679 process requirements and therefore require restoration of his forfeited good time?
Both parties agree that the procedure leading to the 1966 forfeiture action did not comply with the due process requirements recently announced in Wolff v McDonnell, 418 U.S. 539; 94 S. Ct. 2963; 41 L. Ed. 2d 935 (1974). The real argument in the present case is whether Wolff requires the restoration of good time forfeited in 1966, i.e., is that decision retroactive? It would appear that the decision in Wolff v McDonnell, supra, would be dispositive of this issue herein. The Court wrote, at 418 U.S. 573, 574; 94 S. Ct. 2983; 41 L. Ed. 2d 961:
"The Court of Appeals held that the due process requirements in prison disciplinary proceedings were to apply retroactively so as to require that prison records containing determinations of misconduct, not in accord with required procedures, be expunged. We disagree and reverse on this point.
"The question of retroactivity of new procedural rules affecting inquiries into infractions of prison discipline is effectively foreclosed by this Court's ruling in Morrissey [v Brewer, 408 U.S. 471; 92 S. Ct. 2593; 33 L. Ed. 2d 484 (1972)] that the due process requirements there announced were to be `applicable to future revocations of parole,' 408 U.S., at 490 [92 S Ct at 2604; 33 L. Ed. 2d at 499] (emphasis supplied). Despite the fact that procedures are related to the integrity of the factfinding process, in the context of disciplinary proceedings, where less is generally at stake for an individual than at a criminal trial, great weight should be given to the significant impact a retroactivity ruling would have on the administration of all prisons in the country, and the reliance prison officials placed, in good faith, on prior law not requiring such procedures. During 1973, the Federal Government alone conducted 19,000 misconduct hearings, as compared with 1,173 parole revocation hearings, and 2,023 probation revocation hearings. If Morrissey-Scarpelli [Gagnon v Scarpelli, 411 U.S. 778; 93 S. Ct. 1756; 36 L. Ed. 2d 656 (1973)] rules are not retroactive *680 out of consideration for the burden of federal and state officials, this case is a fortiori. We also note that a contrary holding would be very troublesome for the parole system since performance in prison is often a relevant criterion for parole. On the whole, we do not think that error was so pervasive in the system under the old procedures as to warrant this cost or result."
In any event, in the very recent case of Cox v Cook, 420 U.S. 734, 736; 95 S. Ct. 1237, 1238; 43 L. Ed. 2d 587, 590 (1975), it was ruled specifically that Wolff v McDonnell was not to be applied retroactively. The Court wrote:
"In Wolff v McDonnell, supra, we held that a state prisoner was entitled under the Due Process Clause of the Fourteenth Amendment to notice and some kind of a hearing in connection with discipline determinations involving serious misconduct. However, we expressly rejected the holding of the Court of Appeals in that case that
"`the due process requirements in prison disciplinary proceedings were to apply retroactively so as to require that prison records containing determinations of misconduct, not in accord with required procedures, be expunged,' id., at 573; 41 L. Ed. 2d 935; and we expressly held our decision not to be retroactive. The holding was made in the context of a request for expungement of the records of prison discipline determinations."
Inasmuch as Wolff is to be prospective in effect, the requirements therein delineated shall be applicable to forfeiture of good time hearings before our parole board in this state, after the date of decision in Wolff. Also see Gagnon v Scarpelli, 411 U.S. 778; 93 S. Ct. 1756; 36 L. Ed. 2d 656 (1973), Shadbolt v Department of Corrections, 386 Mich. 232; 191 NW2d 344 (1971), Hawkins v Parole Board, 390 Mich. 569; 213 NW2d 193 (1973), and In the Matter of Litton, 30 Mich. App. 281; 185 NW2d 910 (1971).
*681 We rule that the action taken by the prison warden in 1966 in administratively forfeiting plaintiff's accumulated good time as a result of the plaintiff's conviction of a felony was under the law at that time perfectly proper.
The writ of mandamus is denied.