Michigan Court Of Appeals Holds Parole Board Must Consider Release

On October 20, 2015, the Michigan Court of Appeals held in a complaint for a writ of mandamus that the Michigan Parole Board is required to consider complainant's request that the Parole Board consider whether he should be released from prison on parole.

In Hayes v Parole Board, Docket No. 321547, the Michigan Court of Appeals addressed the issue of whether the trial court erred in denying complainant's action for a writ of mandamus to force the Parole Board to consider whether or not to grant complainant parole.  Complainant is currently incarcerated in prison under the custody of the Michigan Department of Corrections. A writ of mandamus is a legal action brought in court to force a party to comply with a clear, preexisting legal duty to perform some action.

The Court first recited the facts of the case:

In January 1996, a jury found Hayes guilty of armed robbery, conspiracy to commit armed robbery, and possession of a firearm during the commission of a felony. The trial court sentenced Hayes as a habitual offender to serve concurrent terms of 20 to 30 years in prison for his armed robbery and conspiracy convictions, which were to be served consecutive to a two- year term for his felony-firearm conviction.

The “calendar minimum date” for Hayes’ release is July 5, 2017. However, his “net minimum date”—his calendar minimum date less disciplinary credits—for release is October 2, 2013. There is no dispute as to whether Hayes has earned his disciplinary credits or concerning his net minimum date for release.

As early as 2008, Hayes began asking the Board to consider him for parole, but the Board repeatedly denied his requests. Hayes then asked Kalamazoo Circuit Court Judge Gary C. Giguere, Jr., who is the successor to Hayes’ sentencing judge, to grant the Board jurisdiction to consider him for parole. Judge Giguere concluded that he did not have the authority to grant jurisdiction because the Board is automatically vested with jurisdiction. Notably, the Board was not involved in those proceedings.

Hayes then sued for a writ of mandamus. Specifically, he asked the trial court to order the Board to consider him for parole. The Board argued that mandamus was improper. It asserted that Hayes was not eligible for parole under MCL 769.12, that it did not have a clear legal duty to consider Hayes for parole, and that Hayes’ proper avenue for relief was to appeal Judge Giguere’s opinion and order. Hayes ultimately argued that the Board must consider him for parole after his net minimum date without the need for approval from his sentencing judge because it is only once that consideration has been made that the Board must obtain judicial approval. The trial court denied Hayes’ request for a writ of mandamus and dismissed his complaint.

Hayes now appeals in this Court . . . .

The Court's analysis of whether the trial court erred in denying complainant's request for a writ of mandamus to force the Parole Board to consider whether he should be paroled or not followed:

Under MCL 769.12(4)(a), an offender is generally “not eligible for parole until” the expiration of the “minimum term fixed by the sentencing judge at the time of sentence unless the sentencing judge or a successor gives written approval for parole at an earlier date authorized by law.” MCL 791.234(1) provides that the parole board acquires jurisdiction over “a prisoner sentenced to an indeterminate sentence and confined in a state correctional facility” when that prisoner “has served a period of time equal to the minimum sentence imposed by the court for the crime of which he or she was convicted, less good time and disciplinary credits, if applicable.” Under MCL 791.235(1), the Board has an obligation to interview a prisoner before rejecting his or her parole: “a prisoner shall not be denied parole without an interview before 1 member of the parole board. The interview shall be conducted at least 1 month before the expiration of the prisoner’s minimum sentence less applicable good time and disciplinary credits . . . .” Additionally, under MCL 791.235(7), “[a]t least 90 days before the expiration of the prisoner’s minimum sentence less applicable good time and disciplinary credits . . . a parole eligibility report shall be prepared by appropriate institutional staff.”

The Board claims that it has no obligation to review Hayes’ request for parole because he is not “eligible for parole” under MCL 769.12(4)(a) until his sentencing judge or the judge’s successor provides written approval. While it is true that MCL 769.12(4)(a) provides that Hayes will not be eligible for parole until the proper judge gives written approval, that by itself does not establish that the Board has no obligation to consider Hayes as a possible candidate for parole. The grant of parole generally means the grant of permission to leave confinement with certain restrictions. See People v Armisted, 295 Mich App 32, 42; 811 NW2d 47 (2011). The Board reads MCL 769.12(4)(a) as setting forth the necessary requirements for a prisoner to become eligible to be considered for release on parole; however, nothing in MCL 769.12(4)(a), or any other statute for that matter, requires written approval from the sentencing judge or his or her successor for a prisoner to be considered for release on parole. MCL 769.12(4)(a) requires written approval before a prisoner otherwise selected for parole will become eligible for the actual grant of parole. It does not require, as the Board suggests, written approval before a prisoner can even be considered for conditional release.

To adopt the Board’s understanding would require us to ignore the unambiguous provisions of MCL 791.234 and MCL 791.235. Under MCL 791.234(1), Hayes became “subject to the jurisdiction of the parole board when [he had] served a period of time equal to the minimum sentence imposed by the court for the crime of which he or she was convicted, less good time and disciplinary credits[.]” No judicial approval was required. Consequently, at that point, the Board had a duty to consider whether he was a proper candidate for parole. At the very least, he was entitled to “an interview before 1 member of the parole board” unless the parole board concluded that he had “a low probability of being paroled[.]” MCL 791.235(1) and MCL 791.235(2). Additionally, he was entitled to have, and the parole board was required to create, “a parole eligibility report[.]” MCL 791.235(7). That did not happen despite the fact that Hayes’ net minimum date has passed.

Under MCL 791.234 and MCL 791.235, the Board had to consider Hayes for parole before the expiration of his net minimum sentence. It is Hayes’ right in conjunction with the Board’s clear duty that renders mandamus proper. “Mandamus is an extraordinary remedy that may lie to compel the exercise of discretion, but not to compel its exercise in a particular manner.” Vorva, 230 Mich App at 655-656. Once that consideration is complete, if the Board decides that parole is proper, then it must obtain the successor judge’s approval before granting parole, as required under MCL 769.12(4)(a). Accordingly, Hayes is entitled to a writ of mandamus . . . .