Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 2, 2003
JAMES JONES,
Plaintiff-Appellee,
v No. 120991
DEPARTMENT OF CORRECTIONS,
Defendant-Appellant.
__________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We granted leave to appeal in this case to consider
whether plaintiff parolee was properly discharged from prison
where defendant, the Department of Corrections, failed to
conduct a timely fact-finding hearing under MCL 791.240a on
plaintiff’s parole violation charges.1 Because we conclude
1
MCL 791.240a(1) provides in part that “[w]ithin 45 days
after a paroled prisoner has been returned or is available for
return to a state correctional facility under accusation of a
(continued...)
that nothing in the plain language of MCL 791.240a permits the
release of a parole violator under the circumstances of this
case and that the appropriate remedy for the department’s
failure to timely conduct a fact-finding hearing is a writ of
mandamus, we reverse the judgment of the Court of Appeals,
dismiss plaintiff’s complaint for habeas corpus relief and
reinstate the order of the parole board revoking plaintiff’s
parole.
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 1998, plaintiff was paroled from sentences
imposed for controlled substances convictions. Plaintiff
tested positively for cocaine on several occasions after his
release on parole, and his original twenty-four-month parole
term was extended because of various parole violations prior
to those at issue in this case.2 In February 2001, plaintiff
again tested positively for cocaine, and he subsequently
failed to report to his parole officer. These two parole
violation charges were first detailed in a warrant issued
February 13, 2001. A third parole violation charge was added
1
(...continued)
parole violation . . ., the prisoner is entitled to a fact
finding hearing on the charges . . . .”
2
Plaintiff’s prior parole violations included an incident
in which he punched and threatened a woman; cocaine use; and
failure to report to his parole officer.
2
on March 12, 2001, charging plaintiff with fleeing and eluding
police.3
Plaintiff waived his right to a preliminary hearing under
MCL 791.239a. On April 19, 2001, plaintiff appeared before a
Department of Corrections administrative law examiner (ALE)
and received notice of the charges against him and the time,
place, and purpose of the fact-finding hearing as required by
MCL 791.240a(2). Plaintiff admitted that he had used cocaine
and had failed to report to his parole officer. However,
plaintiff denied the third parole violation charge, the
commission of the criminal offense of fleeing and eluding
police. Plaintiff asked to present evidence in mitigation of
the parole violations pursuant to MCL 791.240a(2)(d). He did
not object to the date of the fact-finding hearing, which was
scheduled for May 16, 2001.
At the fact-finding hearing, the ALE noted that the
plaintiff had pleaded guilty of the first two counts alleging
violation of the conditions of parole. The third count,
alleging commission of a criminal offense, was dismissed
pursuant to MCL 791.240a(1) for failure to hold a hearing
within forty-five days of the date of plaintiff’s arrest,
March 11, 2001. Nevertheless, the ALE accepted evidence in
3
Plaintiff was subsequently convicted in the Washtenaw
Circuit Court of fourth-degree fleeing and eluding in
violation of MCL 750.479a(2).
3
mitigation of that offense.4 The ALE determined that
plaintiff was in violation of the conditions of his parole as
charged in the first two counts of the warrant, ruling that
plaintiff’s guilty plea provided a sufficient factual basis to
establish the charged violations by a preponderance of the
evidence. The ALE recommended a revocation of plaintiff’s
parole and continuation of plaintiff’s incarceration for
eighteen months before again considering plaintiff for
parole.5 The parole board adopted the ALE’s recommendation.
Plaintiff filed a complaint for a writ of habeas corpus
in the circuit court, contending that he was entitled to
discharge from prison because the fact-finding hearing was not
held until the sixty-sixth day of his availability for return
to a state correctional facility. The circuit court denied
the requested relief. Plaintiff then filed a complaint for
habeas corpus relief in the Court of Appeals,6 which entered
4
Apparently, plaintiff’s only mitigation evidence
pertained to the dismissed third count of the parole violation
warrant.
5
The ALE noted: “Parolee is a drug offender who has
previously violated his parole on charges of assault, using
cocaine, failing to enter treatment, and absconding. For
these violations, he has been diverted to [the Technical Rules
Violation Center] three times. . . . Parolee has plainly
established that he remains an unwarranted danger to the
community, will likely re-offend, and is not amenable to
parole supervision.”
6
The Court of Appeals treated plaintiff’s complaint as an
(continued...)
4
an order of habeas corpus discharging plaintiff from prison
and returning him to the jurisdiction of the parole board.
Unpublished opinion per curiam, issued November 30, 2001
(Docket No. 236835).
The Attorney General, on behalf of the Department of
Corrections, filed an application for leave to appeal the
judgment of the Court of Appeals. This Court issued a stay of
the Court of Appeals decision and granted defendant’s
application for leave to appeal. 467 Mich 884 (2002).
II. STANDARD OF REVIEW
At issue in this case is whether a parolee accused of a
parole violation is entitled to discharge from prison where a
fact-finding hearing on the charge is not held within forty
five days as required by MCL 791.240a(1). This Court reviews
de novo the interpretation and application of a statute as a
question of law. Cruz v State Farm Mut Automobile Ins Co, 466
Mich 588, 594; 648 NW2d 591 (2002); People v Thousand, 465
Mich 149, 156; 631 NW2d 694 (2001). If the language of the
statute is clear, “no further analysis is necessary or allowed
to expand what the Legislature clearly intended to cover.”
Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644 NW2d 730
6
(...continued)
original action, noting that plaintiff had not appealed from
the circuit court’s denial of habeas corpus relief.
5
(2002).
III. ANALYSIS
A. MCL 791.240a(1)
A prisoner enjoys no constitutional or inherent right to
be conditionally released from a validly imposed sentence.
See Greenholtz v Inmates of Nebraska Penal & Correctional
Complex, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979);
People v Malmquist, 155 Mich App 521; 400 NW2d 317 (1986).7
Furthermore, parole revocation is not a stage of a criminal
prosecution. See Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct
1756; 36 L Ed 2d 656 (1973); Morrissey v Brewer, 408 US 471,
480; 92 S Ct 2593; 33 L Ed 2d 484 (1972). However, pursuant
to Morrissey, limited due process requirements, including
notice and the opportunity to be heard, apply to the loss of
liberty occasioned by parole revocation.
The granting, rescission, and revocation of parole in
Michigan is overseen by the Bureau of Pardons and Paroles
pursuant to MCL 791.231 et seq. This statutory scheme makes
7
A preliminary hearing is required to determine if there
is probable cause to believe that parole conditions have been
violated. However, a paroled prisoner may be arrested and
detained without a warrant. MCL 791.239, 791.239a. This
reflects the conditional nature of the release and the
continuing authority of the Department of Corrections to
maintain the prisoner in custody.
6
clear that, with limited exception,8 matters of parole lie
solely within the broad discretion of the parole board, and
that the freedom enjoyed by a paroled prisoner is a limited
freedom.9 The release of a prisoner on parole “shall be
granted solely upon the initiative of the parole board,” MCL
791.235(1), and a paroled prisoner remains in the legal
custody and under the control of the Department of
Corrections, MCL 791.238(1). A parole is “a permit to the
prisoner to leave the prison,” not a release. MCL 791.238(6).
Furthermore, a parolee may be arrested without a warrant where
there exists reasonable cause to believe that he has violated
parole. MCL 791.239.
The procedural requirements of MCL 791.240a serve to
protect the due process interests, as outlined by Morrissey,
of a parolee whose liberty is at stake by virtue of a charge
of parole violation. However, contrary to the holding of the
Court of Appeals in this case, MCL 791.240a neither deprives
8
See MCL 791.234(1); MCL 791.234a.
9
See Morrissey, supra at 480:
[T]he revocation of parole is not part of a
criminal prosecution and thus the full panoply of
rights due a defendant in such a proceeding does
not apply to parole revocations. . . . Revocation
deprives an individual, not of the absolute liberty
to which every citizen is entitled, but only of the
conditional liberty properly dependent on
observance of special parole restrictions.
[Citation omitted.]
7
the parole board of jurisdiction to revoke parole nor requires
the discharge of a parolee where the required hearing has been
delayed beyond the forty-five-day period prescribed.
MCL 791.240a(1) provides:
Within 45 days after a paroled prisoner has
been returned or is available for return to a state
correctional facility under accusation of a parole
violation other than conviction for a felony or
misdemeanor punishable by imprisonment under the
laws of this state, the United States, or any other
state or territory of the United States, the
prisoner is entitled to a fact-finding hearing on
the charges before 1 member of the parole board or
an attorney hearings officer designated by the
chairperson of the parole board. The fact-finding
hearing shall be conducted only after the accused
parolee has had a reasonable amount of time to
prepare a defense. The fact-finding hearing may be
held at a state correctional facility or at or near
the location of the alleged violation.
The Court of Appeals “reluctantly” held that it was
required, pursuant to this Court’s decision in Stewart v Dep’t
of Corrections, 382 Mich 474; 170 NW2d 16 (1969), to order
plaintiff’s release from prison because the fact-finding
hearing was not held within forty-five days of his
availability for return to the Department of Corrections as
required by MCL 791.240a(1). The panel further opined that
habeas corpus relief was appropriate on the basis of this
Court’s order granting such relief to an alleged parole
violator in In re Lane, 377 Mich 695 (1966), after a Court of
Appeals panel had determined that a writ of mandamus was the
appropriate remedy for the failure to hold a timely parole
8
violation hearing.10 However, the panel urged this Court to
reconsider Stewart and Lane:
In light of these Supreme Court cases, we have
little option but to grant plaintiff’s requested
relief. However, we urge defendant to seek review
in the Supreme Court and for the Supreme Court to
reverse us. We agree with our prior opinion in Lane
[2 Mich App 140; 138 NW2d 541 (1965)] that mandamus
is a more appropriate remedy than habeas corpus. We
see little rational reason to require that plaintiff
be returned to parole status. It would seem to us
that if defendant violates the forty-five-day rule,
it could properly be remedied by mandamus. It might
perhaps even be appropriate to require that a
parolee be released from detention on the forty
sixth day. However, we find nothing in the statute
or in common sense to justify entitling plaintiff to
a return to parole status, particularly in light of
parole violations to which he has admitted. [Slip op
at 2.]
In Stewart, the plaintiff was charged with several
alleged parole violations. The plaintiff admitted his guilt
on some of the charges. Although the plaintiff demanded a
formal hearing under former MCL 791.240, the predecessor of
the current MCL 791.240a,11 in light of the plaintiff’s
10
At issue in Stewart and Lane was former MCL 791.240, the
predecessor of MCL 791.240a. Former MCL 791.240 was repealed
by 1968 PA 192.
11
MCL 791.240, which was substantially similar to the
current MCL 791.240a, provided:
Whenever a paroled prisoner is accused of a
violation of his parole, other than the commission
of, and conviction for, a felony or misdemeanor
under the laws of this state, he shall be entitled
to a fair and impartial hearing of such charges
within 30 days before 2 members of the parole board
(continued...)
9
admission of guilt the parole board denied the request for a
hearing. This Court affirmed the judgment of the Court of
Appeals granting the plaintiff’s writ of superintending
control against the Department of Corrections, holding that
[t]he failure of the parole board to conduct the
hearing provided for by the statute within 30 days
constituted, in effect, a waiver of any claim based
upon these violations since the alleged violations
were not “a felony or misdemeanor under the laws of
this state.”[12] We further conclude that, under
these circumstances, the plaintiff is entitled to
be discharged from prison but he will remain under
the jurisdiction of the parole board as per their
order of December 9, 1966. [Stewart, supra at 479.]
The Stewart Court erred, in our judgment, by engrafting
onto the terms of former MCL 791.240 a remedy that had no
basis in the plain language of the statute. As we have
11
(...continued)
under such rules and regulations as the parole
board may adopt. Upon such hearing such paroled
prisoner shall be allowed to be heard by counsel of
his own choice, at his own expense, and may defend
himself, and he shall have the right to produce
witnesses and proofs in his favor and to meet the
witnesses who are produced against him. . . .
12
The parole board argued in Stewart that because the
plaintiff had been convicted of a crime in Missouri, he was
not entitled to a parole violation hearing because the conduct
underlying the Missouri conviction was a “felony or
misdemeanor under the laws of this state” within the meaning
of former MCL 791.240. One of the primary differences between
former MCL 791.240 and current MCL 791.240a is that the
current statute does not require a fact-finding hearing for
parole violations based on convictions punishable by
imprisonment not only in this state, but in “the United States
. . . or any other state or territory of the United
States. . . .”
10
recently noted on several occasions, “‘our judicial role
precludes imposing different policy choices than those
selected by the Legislature, [and] our obligation is, by
examining the statutory language, to discern the legislative
intent that may reasonably be inferred from the words
expressed in the statute.’” People v Sobczak-Obetts, 463 Mich
687, 694-695; 625 NW2d 764 (2001), quoting People v McIntire,
461 Mich 147, 152; 599 NW2d 102 (1999). In determining that
the parole board had waived its authority and that the
plaintiff was entitled to discharge, the Stewart Court created
a remedy for a violation of former MCL 791.240 that was not
grounded anywhere in the statutory scheme and thus exceeded
its judicial authority.13
We decline to impose the relinquishment of the parole
board’s statutory authority14 to revoke parole as a remedy for
a violation of the forty-five-day limitation period provided
in MCL 791.240a(1). To infer such a legislative intent where
none is indicated either in the text of MCL 791.240a or
elsewhere in the statutory scheme “would be an exercise of
13
The Legislature well knows how to provide remedies for
statutory time limitation violations and has explicitly done
so in other settings. See, e.g., MCL 780.133 (providing that
where the “180-day rule” of MCL 780.131 is violated, the
courts of this state lose jurisdiction and must dismiss the
action with prejudice).
14
MCL 791.240a(6).
11
will rather than judgment.” People v Stevens (After Remand),
460 Mich 626, 645; 597 NW2d 53 (1999) (emphasis in original).
We overrule Stewart to the extent that it conflicts with
today’s holding.15
B. RESPONSE TO THE DISSENT
The dissent, invoking the so-called “reenactment rule,”
asserts that because the post-Stewart revisions to MCL 791.240
and MCL 791.240a do not “clearly show an intention to undo
this Court’s holding in Stewart,” we must assume that the
Legislature intended to adopt the extra-statutory remedy
imposed by the Stewart Court. We decline to impose on the
Legislature any such duty to “clearly show” its intention to
repudiate any judicial construction with which it disagrees.
As we have recently explained in People v Hawkins, 468
Mich ___; ___ NW2d ___ (2003), the reenactment rule cannot be
used as a tool to circumvent the plain and unambiguous
language of a statute. Nothing in the language of MCL
15
The Attorney General cites Hawkins v Mich Parole Bd, 390
Mich 569; 213 NW2d 193 (1973), in which this Court adopted and
affirmed an opinion of the Court of Appeals ordering a parole
revocation hearing de novo on the ground that the allegedly
indigent plaintiff was not accorded a proper hearing because
he was not provided with court-appointed counsel. The
Attorney General essentially argues that Stewart was overruled
sub silentio by this Court’s decision in Hawkins. However,
Hawkins is inapposite because the parties in that case
stipulated that such a hearing would be held. See Hawkins v
Michigan Parole Bd, 45 Mich App 529, 531; 206 NW2d 764 (1973).
Thus, unlike in Stewart and the present case, the consequences
of holding an improper parole revocation hearing were not at
issue in Hawkins.
12
791.240a indicates the Legislature’s intent to adopt the
Stewart Court’s holding that the parole board waives its right
to pursue parole violation charges by failing to conduct a
hearing within the statutory period. While the dissent opines
that the Legislature’s failure to affirmatively limit the
holding in Stewart is indicative of its approval of that
holding, an equally plausible conclusion to be drawn from the
Legislature’s silence is that it intended to reject the
Stewart Court’s analysis. See Hawkins, supra at ___ n 12.
“[O]ur most fundamental principle of statutory
construction [is] that there is no room for judicial
interpretation when the Legislature’s intent can be
ascertained from the statute’s plain and unambiguous
language.” Hawkins, supra at ___. Because there is no clear
indication in the language of MCL 791.240a(1) that the
Legislature intended to either adopt or repudiate the Stewart
Court’s imposition of an extra-statutory remedy for a
violation of that statute, we decline to apply the reenactment
rule in this case.
C. APPROPRIATE REMEDY FOR A VIOLATION OF MCL 791.240a(1)
Where an official has a clear legal duty to act and fails
to do so, the appropriate remedy is an order of mandamus. See
In re MCI, 460 Mich 396, 442-443; 596 NW2d 164 (1999);
Lickfeldt v Dep't of Corrections, 247 Mich App 299, 302; 636
13
NW2d 272 (2001).16 Where, as here, the Legislature has
established a clear, ministerial duty, but has failed to
prescribe any consequence for a violation of that duty, a
plaintiff may seek a writ of mandamus to compel compliance
with the statutory duty. Accordingly, we agree with the
suggestion of the Court of Appeals in this case—and in Lane,
2 Mich App 144—that the proper remedy for the failure to hold
a timely hearing as required by MCL 791.240a(1) is a complaint
for an order of mandamus rather than for a writ of habeas
corpus.17
IV. CONCLUSION
Because nothing in the text of MCL 791.240a or the
remainder of the statutory scheme governing paroles indicates
a legislative intent that a violation of the forty-five-day
time limit established by MCL 791.240a(1) requires the
discharge of a prisoner, we reverse the decision of the Court
of Appeals and reinstate the order of the parole board
16
See Phillips v Warden, State Prison of Southern
Michigan, 153 Mich App 557, 566; 396 NW2d 482 (1986) (“Habeas
corpus is an alternative remedy and may be refused in the
exercise of discretion where full relief may be obtained in
other more appropriate proceedings.”).
17
As noted by the Court of Appeals in this case, this
Court, without comment, granted habeas corpus relief to the
petitioner in Lane. To the extent that any implication arises
from this Court’s terse order in Lane that habeas corpus
relief is appropriate for a violation of MCL 791.240a(1), we
overrule that decision.
14
revoking plaintiff’s parole. The appropriate remedy for a
violation of the forty-five-day requirement is a writ of
mandamus. To the extent that this Court’s decisions in
Stewart and Lane conflict with today’s holding, they are
overruled.
Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor
Stephen J. Markman
15
S T A T E O F M I C H I G A N
SUPREME COURT
JAMES JONES,
Plaintiff-Appellee,
v No. 120991
DEPARTMENT OF CORRECTIONS,
Defendant-Appellant.
__________________________________
WEAVER, J. (concurring).
I join in all but part IIIB of the majority opinion. As
I noted in my concurring opinion in People v Hawkins, 468 Mich
___; ___ NW2d ___ (2003), I believe that the reenactment rule
may be relied on in cases where it is appropriate.
Elizabeth A. Weaver
S T A T E O F M I C H I G A N
SUPREME COURT
JAMES JONES,
Plaintiff-Appellee,
v No. 120991
DEPARTMENT OF CORRECTIONS,
Defendant-Appellant.
____________________________________
CAVANAGH, J. (dissenting).
I respectfully disagree with the majority. Plaintiff is
a prisoner whose parole was revoked by the parole board. The
issue presented is whether the parole-violation charges
against plaintiff must be dismissed because the fact-finding
hearing on the charges was not held within forty-five days, as
required by MCL 791.240a.1 In response to plaintiff’s
complaint for a writ of habeas corpus, the Court of Appeals
1
MCL 791.240a requires that the hearing be held within
forty-five days after a paroled prisoner has been returned or
is available for return to a state correctional facility.
Plaintiff was available on March 11, 2001. The hearing was
held May 16, 2001.
ruled that pursuant to existing case law, plaintiff’s
requested relief must be granted and plaintiff must be
discharged from prison and returned to the jurisdiction of the
parole board. For the reasons articulated below, I would
affirm the decision of the Court of Appeals.
I
Whether the parole-violation charges against plaintiff
must be dismissed because the fact-finding hearing on the
charges was not held within forty-five days, as required by
MCL 791.240a, is a matter of statutory interpretation. A
matter of statutory interpretation is a question of law, which
this Court reviews de novo. People v Morey, 461 Mich 325,
329; 603 NW2d 250 (1999).
MCL 791.240a provides in pertinent part:
(1) Within 45 days after a paroled prisoner
has been returned or is available for return to a
state correctional facility under accusation of a
parole violation other than conviction for a felony
or misdemeanor punishable by imprisonment under the
laws of this state, the United States, or any other
state or territory of the United States, the
prisoner is entitled to a fact-finding hearing on
the charges before 1 member of the parole board or
an attorney hearings officer designated by the
chairperson of the parole board. The fact-finding
hearing shall be conducted only after the accused
parolee has had a reasonable amount of time to
prepare a defense. The fact-finding hearing may be
held at a state correctional facility or at or near
the location of the alleged violation.[2]
2
The statute further provides:
(continued...)
2
2
(...continued)
(2) An accused parolee shall be given written
notice of the charges against him or her and the
time, place, and purpose of the fact-finding
hearing. At the fact-finding hearing, the accused
parolee may be represented by an appointed or
retained attorney and is entitled to the following
rights:
(a) Full disclosure of the evidence against
him or her.
(b) To testify and present relevant witnesses
and documentary evidence.
(c) To confront and cross-examine adverse
witnesses unless the person conducting the fact
finding hearing finds on the record that a witness
is subject to risk of harm if his or her identity
is revealed.
(d) To present other relevant evidence in
mitigation of the charges.
(3) A fact-finding hearing may be postponed
for cause beyond the 45-day time limit on the
written request of the parolee, the parolee’s
attorney, or, if a postponement of the preliminary
hearing has been granted beyond the 10-day time
limit, by the parole board.
(4) If the evidence presented is insufficient
to support the allegation that a parole violation
occurred, the parolee shall be reinstated to parole
status.
(5) If the parole board member or hearings
officer conducting the fact-finding hearing
determines from a preponderance of the evidence
that a parole violation has occurred, the member or
hearings officer shall present the relevant facts
to the parole board and make a recommendation as to
the disposition of the charges.
(6) If a preponderance of the evidence
(continued...)
3
In Stewart v Dep’t of Corrections, 382 Mich 474, 477; 170
NW2d 16 (1969), this Court considered the predecessor of MCL
791.240a, which stated:
“Whenever a paroled prisoner is accused of a
violation of his parole, other than the commission
of, and conviction for, a felony or misdemeanor
under the laws of this state, he shall be entitled
to a fair and impartial hearing of such charges
within 30 days before 2 members of the parole board
under such rules and regulations as the parole
board may adopt. Upon such hearing such paroled
prisoner shall be allowed to be heard by counsel of
2
(...continued)
supports the allegation that a parole violation
occurred, the parole board may revoke parole, and
the parolee shall be provided with a written
statement of the findings of fact and the reasons
for the determination within 60 days after the
paroled prisoner has been returned or is available
for return to a state correctional facility.
(7) A parolee who is ordered to make
restitution under the crime victim’s rights act,
Act No. 87 of the Public Acts of 1985, being
sections 780.751 to 780.834 of the Michigan
Complied Laws, or the code of criminal procedure,
Act No. 175 of the Public Acts of 1927, being
sections 760.1 to 776.21 of the Michigan Compiled
Laws, or to pay an assessment ordered under section
5 of Act No. 196 of the Public Acts of 1989, being
section 780.905 of the Michigan Compiled Laws, as a
condition of parole may have his or her parole
revoked by the parole board if the parolee fails to
comply with the order and if the parolee has not
made a good faith effort to comply with the order.
In determining whether to revoke parole, the parole
board shall consider the parolee’s employment
status, earning ability, and financial resources,
the willfulness of the parolee’s failure to comply
with the order, and any other special circumstances
that may have a bearing on the parolee’s ability to
comply with the order.
4
his own choice, at his own expense, and may defend
himself, and he shall have the right to produce
witnesses and proofs in his favor and to meet the
witnesses who are produced against him.” [MCL
791.240.]
Stewart’s parole agent submitted a parole-violation report
charging that the plaintiff had unlawfully absconded from the
jurisdiction, and a parole-violation warrant was issued.
Subsequently, the plaintiff pleaded guilty to a misdemeanor
charge in St. Louis, Missouri. He was released to the custody
of the Michigan Parole Board, which denied his request for a
formal hearing. The parole board’s reasoning for denying the
hearing was that the evidence Stewart proposed to offer would
be “‘incompetent, immaterial, and unduly repetitious,’” given
that he had already admitted his guilt on some of the charges.
Stewart, supra at 477.
This Court agreed with the Court of Appeals analysis
rejecting defendant’s interpretation of the statute:
“In our [the Court of Appeals] opinion the
parole board misreads the statute. An alleged
parole violator (other than one accused of the
commission of, and conviction for, a felony or
misdemeanor ‘under the laws of this State’) is
entitled to a fair and impartial hearing within 30
days, at such hearing to be heard by counsel and to
produce witnesses and proofs in his favor and to
meet the witnesses produced against him, without
regard to whether he admits his guilt. The statute
provides that all such alleged parole violators,
not merely those that deny guilt, are entitled to
such a hearing. The petitioner asserts he
requested such a hearing which assertion was
neither denied in the affidavit filed in response
to the original petition or in the attorney
5
general’s briefs filed in response to petitioner’s
complaint and our order. Those responses merely
state that the petitioner’s rights were explained
to him, that he freely admitted his guilt, and
therefore it was not necessary to conduct a
hearing.” [Id. at 478.]
The Court further stated:
We agree with the Court of Appeals’ rejection
of defendant’s construction of the statute
applicable to this appeal.
We affirm the [decision of the] Court of
Appeals. The failure of the parole board to
conduct the hearing provided for by the statute
within 30 days constituted, in effect, a waiver of
any claim based upon these violations since the
alleged violations were not “a felony or
misdemeanor under the laws of this state.” We
further conclude that, under these circumstances,
the plaintiff is entitled to be discharged from
prison but he will remain under the jurisdiction of
the parole board as per their order of December 9,
1966. [Id. at 479 (emphasis added).]
The version of the statute at issue in Stewart, MCL
791.240, was repealed by 1968 PA 192.3 However, at the same
time that it was repealed, the substance of that provision was
reenacted in MCL 791.240a. The 1968 version of this provision
stated:
Within 30 days after a paroled prisoner has
been returned to a state penal institution under
accusation of a violation of his parole, other than
the conviction for a felony or misdemeanor
punishable by imprisonment in any jail, a state or
3
Although Stewart was decided in 1969, after the repeal
of MCL 791.240, the issue before the Court at that time was
the proper interpretation of MCL 791.240 because the alleged
parole violations at issue in Stewart occurred in 1967, before
the repeal and subsequent reenactment of the statute.
6
federal prison under the laws of this state, the
United States or any other state or territory of
the United States, he shall be entitled to a
hearing on such charges before 2 members of the
parole board. Hearings shall be conducted in
accordance with rules and regulations adopted by
the director, and the accused prisoner shall be
given an opportunity to appear personally or with
counsel and answer to the charges placed against
him. [1968 PA 192.4]
Subsequent amendments of MCL 791.240a have taken effect in
1982, 1985, and 1994. The 1982 amendments are especially
relevant because they altered the time requirement for the
formal hearing, increasing it from thirty days after a paroled
prisoner has been returned or is available to forty-five days
after a paroled prisoner has been returned or is available.
The 1982 version of MCL 791.240a(1) stated in pertinent part:
Within 45 days after a paroled prisoner has
been returned or is available for return to a state
penal institution under accusation of a violation
of parole, other than the conviction for a felony
or misdemeanor punishable by imprisonment under the
laws of this state, the United States, or any other
state or territory of the United States, the
prisoner is entitled to a fact-finding hearing on
the charges before 1 member of the parole board or
an attorney hearings officer designated by the
chairperson of the parole board. The fact-finding
hearing shall be conducted only after the accused
parolee has had a reasonable amount of time to
prepare a defense. The fact-finding hearing may be
held at a state penal institution or at or near the
location of the alleged violation. [1982 PA 314.]
4
One of the primary differences between the 1968 version
of MCL 791.240a and its predecessor, MCL 791.240, is that the
1968 version of MCL 791.240a also included an exception for
misdemeanor and felony convictions in jurisdictions other than
the state of Michigan.
7
No revisions were made to the statute, as it was
reenacted in 1982, to limit this Court’s conclusion in Stewart
that the failure to conduct the formal hearing within the
requisite time constitutes a waiver of any claim based on the
alleged parole violations, nor have any such revisions been
made in amendments after the 1982 version of MCL 791.240a.
While this Court has disavowed the doctrine of legislative
acquiescence in previous cases,5 this case represents
something more than legislative acquiescence, or discerning
legislative intent from the Legislature’s failure to take any
action. In the present case, the Legislature has acted
several times to reenact and revise the statute, even
increasing the time limit for the fact-finding hearing from
thirty days to forty-five days. However, none of the
subsequent revisions to the statute since Stewart was decided
can be construed as limiting this Court’s conclusion in
Stewart that the failure to conduct the formal hearing within
the requisite time constitutes a waiver of any claim based on
the alleged parole violations. The Legislature is presumed to
know “that when a statute, clause or provision thereof, has
been construed by the court of last resort of this State and
the same is substantially re-enacted the legislature adopts
such construction, unless the contrary is clearly shown by the
5
See Donajkowski v Alpena Power Co, 460 Mich 243, 258
262; 596 NW2d 574 (1999).
8
language of the act.” Jeruzal v Wayne Co Drain Comm’r, 350
Mich 527, 534; 87 NW2d 122 (1957).6 The language used by the
Legislature in subsequent revisions of the provision at issue
does not clearly show an intention to undo this Court’s
holding in Stewart.
Therefore, I would affirm the decision of the Court of
Appeals and order that the stay imposed on February 22, 2002,
be lifted and that plaintiff be discharged from prison and
returned to the jurisdiction of the parole board.
Michael F. Cavanagh
Marilyn Kelly
6
See also Smith v Detroit, 388 Mich 637, 650-651; 202
NW2d 300 (1972) (“‘Even more persuasive is the rule that where
the basic provisions of a statute have been construed by the
courts and these provisions are subsequently reenacted by the
legislature, it may be assumed that the legislature acted with
knowledge of the Court’s decisions and that the legislature
intended the reenacted statute to carry the Court’s
interpretation with it.’” Quoting Breckon v Franklin Fuel Co,
383 Mich 251, 295; 174 NW2d 836 [1970] [Adams, J.,
dissenting]); Sheppard v Michigan Nat’l Bank, 348 Mich 577,
631-632; 83 NW2d 614 (1957) (Chief Justice Dethmers,
concurring, wrote “Where a statutory provision is re-enacted
without change in language, it must be presumed that the
action was taken in the light of prior judicial construction
placed upon it and with the intent to adopt such construction.
When the Supreme Court has placed an interpretation on a
statute over a considerable period of years it may indulge in
the judicial assumption that the legislature has been content
with that interpretation because of its failure to exercise
its independent prerogative to restate the provision.”
[Citations omitted.]).
9