Jones v. Department of Corrections

                                                                       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