WAYNE COUNTY PROSECUTOR V DEPARTMENT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
WAYNE COUNTY PROSECUTOR,
UNPUBLISHED
October 29, 1999
Plaintiff-Appellant,
v
No. 216270
Wayne Circuit Court
LC No. 98-813465 PC
MICHIGAN DEPARTMENT
OF CORRECTIONS,
Defendant-Appellee,
and
ROBERT JOSEPH OWENS, JR.,
Defendant.
Before: Gribbs, P.J., and Smolenski and Gage, JJ.
PER CURIAM.
This case arises from plaintiff’s complaint for declaratory judgment that the parole guideline rule,
1996 AACS, R 791.7716 is unconstitutional. Plaintiff appeals as of right from an order granting
summary disposition in favor of defendant pursuant to MCR 2.116(I)(2). We affirm.
Plaintiff contends on appeal that the Legislature would have adopted MCL 791.233e; MSA
28.2303(6) if it knew that the rule promulgation requirements of the Administrative Procedures Act
(APA), MCL 24.201 et seq.; MSA 3.560(101) et seq., in particular MCL 24.245-246; MSA
3.560(145)-(146) (sometimes referred to as § § 45 and 46) as indicated in MCL 791.233e(5); MSA
28.2303(6)(5), would be severed from MCL 791.233e; MSA 28.2303(6). We disagree with this
contention.1
We will perform a de novo review of this issue because it involves both a question of statutory
interpretation and a grant of a motion for summary disposition. Oakland Co Bd of Road Comm’rs v
Michigan Property & Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998);
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Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). MCL 8.5; MSA
2.216 provides a statutory rule of construction regarding the severability of statutes:
In the construction of the statutes of this state the following rules shall be
observed, unless such construction would be inconsistent with the manifest intent of the
legislature, that is to say:
If any portion of an act or the application thereof to any person or
circumstances shall be found to be invalid by a court, such invalidity shall not affect the
remaining portions or applications of the act which can be given effect without the
invalid portion or application, provided such remaining portions are not determined by
the court to be inoperable, and to this end acts are declared to be severable.
Generally, portions of acts are severable as long as the remaining portions can operate without the
severed portions. Citizens for Logical Alternatives & Responsible Environment v Clare Co Bd of
Comm’rs, 211 Mich App 494, 498; 536 NW2d 286 (1995). In deciding whether particular language
in a statute can be severed, courts may look to an act’s legislative history to determine whether the
severance of the provision results in an outcome consistent with the Legislature’s intent. See id. at 499.
Thus, severance is appropriate if “the valid portion of the statute can be read and enforced
independently of the invalid portion and remains reasonable in view of the act as originally drafted.” Id.
at 498. One test applied to determine whether the remaining portion of the statute is capable of
separate enforcement is whether the Legislature would have passed the statute had it been aware that
portions therein would be declared to be invalid and excised from the act. Pletz v Secretary of State,
125 Mich App 335, 375; 336 NW2d 789 (1983).
MCL 791.233e; MSA 28.2303(6) provides as follows:
(1) The department shall develop parole guidelines that are c
onsistent with section
33(1)(a) and that shall govern the exercise of the parole board's discretion pursuant to
sections 34 and 35 as to the release of prisoners on parole under this act. The purpose
of the parole guidelines shall be to assist the parole board in making release decisions
that enhance the public safety.
(2) In developing the parole guidelines, the department shall consider factors including,
but not limited to, the following:
(a) The offense for which the prisoner is incarcerated at the time of parole
consideration.
(b) The prisoner's institutional program performance.
(c) The prisoner's institutional conduct.
(d) The prisoner's prior criminal record. As used in this subdivision, "prior
criminal record" means the recorded criminal history of a prisoner, including all
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misdemeanor and felony convictions, probation violations, juvenile adjudications for acts
that would have been crimes if committed by an adult, parole failures, and delayed
sentences.
(e) Other relevant factors as determined by the department, if not otherwise
prohibited by law.
(3) In developing the parole guidelines, the department may consider both of the
following factors:
(a) The prisoner's statistical risk screening.
(b) The prisoner's age.
(4) The department shall ensure that the parole guidelines do not create disparities in
release decisions based on race, color, national origin, gender, religion, or disability.
(5) The department shall promulgate rules pursuant to the administrative procedures act
of 1969, Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.328 of
the Michigan Compiled Laws, which shall prescribe the parole guidelines. The
department shall submit the proposed rules to the joint committee on administrative rules
not later than April 1, 1994. Until the rules take effect, the director shall require that the
parole guidelines be considered by the parole board in making release decisions. After
the rules take effect, the director shall require that the parole board follow the parole
guidelines.
(6) The parole board may depart from the parole guideline by denying parole to a
prisoner who has a high probability of parole as determined under the parole guidelines
or by granting parole to a prisoner who has a low probability of parole as determined
under the parole guidelines. A departure under this subsection shall be for substantial
and compelling reasons stated in writing. The parole board shall not use a prisoner's
gender, race, ethnicity, alienage, national origin, or religion to depart from the
recommended parole guidelines.
(7) Not less than once every 2 years, the department shall review the correlation
between the implementation of the parole guidelines and the recidivism rate of paroled
prisoners, and shall submit to the joint committee on administrative rules any proposed
revisions to the administrative rules that the department considers appropriate after
conducting the review.
After reviewing the statute and associated pre-enactment legislative history, we find that the
Legislature did not intend to actively participate, oversee, or contribute to the promulgation of parole
guideline rules. Rather, the intent of the Legislature was to codify defendant’s responsibility to develop
parole guidelines so that the parole board’s decisions would be based on objective and legally relevant
factors. Because the Legislature did not intend to oversee the promulgation of the parole guidelines, we
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conclude that the Legislature’s inclusion of the rule promulgation requirement provisions of the APA as
set forth in MCL 791.233e(5); MSA 28.2303(6)(5) was merely to conform the statute with the then
existing rule promulgation requirements as detailed in the APA. Therefore, we further conclude that
§ § 45 and 46 of the APA, as related to MCL 791.233e(5); MSA 28.2303(6)(5), are severable
because the statute can be read and enforced independently of those invalid portions and remains
reasonable in view of the statute as originally drafted.
Further, the Legislature is assumed to be aware of administrative interpretations of its acts and,
thus, legislative silence following an agency’s construction is construed as consent to that construction.
Parker v Byron Center Public Schools Bd of Ed, 229 Mich App 565, 570; 582 NW2d 859 (1998).
If the Legislature disapproved of the parole guideline rule because the rule was unauthorized, not within
legislative intent, or inexpedient, pursuant to MCL 24.251; MSA 3.560(151), the Legislature could
have: (1) enacted a bill, passed by a majority of both houses and presented to the Governor, that
revoked the rule; or, (2) adopted a resolution expressing its disapproval of the rule in an effort to
recommend to the promulgating agency to withdraw or amend the rule. Michigan State Employees
Ass’n v Liquor Control Comm, 232 Mich App 456, 465-466; 591 NW2d 353 (1998); Blank v
Dep't of Corrections, 222 Mich App 385, 398-399; 564 NW2d 130 (1997), lv gtd 459 Mich 878
(1998).
The next issue on appeal is whether defendant was required to submit its proposed parole
guideline rules to the Joint Committee on Administrative Rules (JCAR), in conformity with § 45 of the
APA, as provided in MCL 791.233e(5); MSA 28.2303(6)(5), even though this Court, in Blank, supra
at 388-389, explicitly declared that the retention of the JCAR’s veto power was unconstitutional.
Plaintiff argues that the holding in Blank is not applicable to MCL 791.233e; MSA 28.2303(6) because
Blank involved a different underlying issue, i.e., the promulgation of prisoner visitation rules, not parole
guideline rules. We disagree. While the specific rule at issue in Blank involved prisoner visitation, this
Court’s decision involved the broader question of “the constitutionality of [the] statutory scheme that
essentially requires that administrative rules established by the Michigan Department of Corrections
(DOC) and other state administrative agencies be submitted to a joint committee of the Legislature for
approval before becoming effective.” Blank, supra at 388. Therefore, we conclude that defendant
was not required to submit its proposed parole guideline rules to the JCAR, in conformity with § 45 of
the APA, as provided in MCL 791.233e(5); MSA 28.2303(6)(5), because the legislative approval
requirement has been declared unconstitutional.
Next, plaintiff contends that the parole guidelines rule, 1996 AACS, R 791.7716 (sometimes
referred to as “the rule”) does not conform with the requirements of 1992 PA 181.2 We disagree.
The substantive validity of an agency’s rules promulgated pursuant to its statutory authority is
determined by a three-part test: (1) whether the rule is within the subject matter of the enabling statute;
(2) whether it complies with the legislative intent underlying the enabling statute; and, (3) whether it is
arbitrary or capricious. Luttrell v Dep’t of Corrections, 421 Mich 93, 100; 365 NW2d 74 (1984);
Faircloth v Family Independence Agency, 232 Mich App 391, 405 n 7; 591 NW2d 314 (1998).
We find that the rule is explicitly within the subject matter covered by the enabling statute, in particular
MCL 791.233e(5); MSA 28.2303(6)(5). Therefore, the rule meets the first test of validity. Further,
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we find that the rule meets the second test of validity because it substantially mirrors MCL 791.233e;
MSA 28.2303(6) and conforms with the legislative intent that defendant develop parole guidelines so
that the parole board’s decisions would be based on objective and legally relevant factors.
Finally, plaintiff contends that the rule is arbitrary and capricious because it does not designate
the manner in which the factors considered by the parole board are to be weighted and that the scores
or scoring ranges are disproportionate to the significance of the factors. We disagree. The arbitrary
and capricious standard was explained recently in Blank, supra at 407 (citations omitted):
A rule is arbitrary if it was fixed or arrived at through an exercise of will or by
caprice, without giving consideration to principles, circumstances, or significance.. A
rule is capricious if it is apt to change suddenly or is freakish or whimsical. If a rule is
rationally related to the purpose of the statute, it is neither arbitrary nor capricious.
Further, if there is any doubt about the invalidity of a rule in this regard, the rule must be
upheld.
MCL 791.233e(1); MSA 28.2303(6)(1) mandated that defendant develop parole guidelines
that were consistent with MCL 791.233(1)(a); MSA 28.2303(1)(a), which requires the parole board
to have reasonable assurances that the prisoner will not become a menace to society or to the public
safety. MCL 791.233e(1); MSA 28.2303(6)(1) vested broad discretion in defendant to develop and
implement the parole guidelines and did not contain a provision requiring that the parole guidelines be
designed in any particular manner or that the various mandated factors of consideration be quantified or
proportionately weighted. MCL 791.233e(5); MSA 28.2303(6)(5) also mandated that defendant
promulgate rules which “prescribe” the parole guidelines. While plaintiff contends that the rule is simply
a “re-hash” of 1992 PA 181, which “adds nothing,” we note that the word “prescribe” does not mean
“to quantify,” but rather to “lay down authoritatively as a guide, direction, or rule.” See Black’s Law
Dictionary (5th ed), p 1064.
In the present case we conclude that defendant properly prescribed a rule which mandated
quantification, through scoring, of the various factors to be considered in parole decisions. The parole
guideline scores are based on a combination of the length of time the prisoner has been incarcerated for
the offense for which parole is being considered and various aggravating and mitigating factors, with
defendant publishing numeric scores for the aggravating and mitigating factors not less than once every
two years. 1996 AACS, R 791.7716(2) and (3). Such quantification illustrates an effort to standardize
and give some measure of comparison to parole decision making to ensure uniformity and consistency in
parole decisions. Quantification also allows a means to track recidivism rates so that scores assigned to
various factors can be tested for their predictive viability and adjusted accordingly. This Court gives
great deference to an agency’s interpretation of a statute or rule. Tercheck v Dep’t of Treasury, 171
Mich App 508, 512; 431 NW2d 208 (1988). “[R]ules are valid so long as they are not unreasonable;
and, if doubt exists as to their invalidity, they must be upheld.” Sterling Secret Service, Inc v Dep’t of
State Police, 20 Mich App 502, 514; 174 NW2d 298 (1969).
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Accordingly, we find that R 791.7716 is neither arbitrary or capricious, but rationally related to
the Legislature’s purpose to codify defendant’s responsibility to develop and promulgate parole
guidelines so that the parole board’s decisions would be based on objective and legally relevant factors.
Affirmed.
/s/ Roman S. Gribbs
/s/ Michael R. Smolenski
/s/ Hilda R. Gage
1
Plaintiff’s contention arises from this Court’s opinion in Blank v Dep't of Corrections, 222 Mich
App 385, 392-402; 564 NW2d 130 (1997), lv gtd 459 Mich 878 (1998), which held that the
legislative approval requirements for proposed agency rules as set forth in §45 was unconstitutional,
and that the requirement in § 46 that an agency may not file a rule with the Secretary of State without a
certificate of legislative approval was a nullity.
2
1992 PA 181 states: “AN ACT to amend sections 32, 34, 35, and 44 of Act No. 232 of the Public
Acts of 1953, entitled as amended ‘An act to revise, consolidate, and codify the laws relating to
probationers and probation officers, to pardons, reprieves, commutations, and paroles, to the
administration of correctional institutions, correctional farms, and probation recovery camps, to prisoner
labor and correctional industries, and the supervision and inspection of local jails and houses of
correction; to provide for the siting of correctional facilities; to create a state department of
corrections, and to prescribe its powers and duties; to provide for the transfer to and vesting in said
department of powers and duties vested by law in certain other state boards, commissions, and officers,
and to abolish certain boards, commissions, and offices the powers and duties of which are hereby
transferred; to prescribe the powers and duties of certain other state departments and agencies; to
provide for the creation of a local lockup advisory board; to prescribe penalties for the violation of the
provisions of this act; to repeal certain parts of this act on specific dates; and to repeal all acts and parts
of acts inconsistent with the provisions of this act,’ sections 32 and 44 as amended by Act No. 314 of
the Public Acts of 1982 and sections 34 and 35 as amended by Act No. 22 of the Public Acts of 1992,
being sections 791.232, 791.234, 791.235, and 791.244 of the Michigan Compiled Laws; to add
sections 31a and 33e; to repeal certain acts and parts of acts; and to repeal certain parts of the act on
specific dates.”
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