ROBERT C HICKS V DEPT OF CORRECTIONS
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT C. HICKS,
UNPUBLISHED
July 23, 2002
Plaintiff-Appellee,
v
No. 225518
Ingham Circuit Court
LC No. 98-089013-AW
MICHIGAN DEPARTMENT OF
CORRECTIONS,
Defendant-Appellant.
Before: Bandstra, P.J., and Hoekstra and O’Connell, JJ.
PER CURIAM.
Defendant Michigan Department of Corrections (MDOC) appeals as of right from an
order granting summary disposition for plaintiff, an inmate in the custody of the MDOC, under
MCR 2.116(I)(2) and ordering the MDOC either to enroll plaintiff in its group sex offender
therapy program pursuant to the program classification report prepared for plaintiff or remove
the therapy program requirement from his classification report and dispense with his
participation in the program. We reverse.
In 1993, plaintiff was convicted of first-degree criminal sexual conduct and sentenced to
8 to 30 years’ imprisonment. As part of his MDOC orientation, he underwent a reception center
psychological evaluation that resulted in a recommendation in his program classification report
that he participate in sex offender therapy during his incarceration. Plaintiff subsequently sought
participation in a sex offender therapy program but the MDOC refused to allow him to
participate. The apparent basis for the decision was a sex offender program statement providing
that the MDOC no longer considered the reception center recommendations as binding, but
would evaluate sex offenders for participation pursuant to certain screening criteria. Under these
criteria, individuals who denied committing a sex offense were deemed ineligible to participate
in the program. Plaintiff has at all times maintained his innocence.
Plaintiff filed a complaint for mandamus and declaratory relief alleging that the MDOC’s
refusal to allow him to participate in the therapy program diminished his chance of parole once
he became eligible in October 1999. He sought either the removal of the recommendation of sex
offender therapy or participation in therapy despite his claim of innocence. Following a hearing,
the trial court granted summary disposition for plaintiff, ruling that it was improper for the
MDOC to require participation in a therapy program as a condition of being paroled and then
deny him participation in such a program.
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On appeal, the MDOC contends that mandamus was improper because plaintiff did not
have a right to participate in any type of therapy or other programs offered by the MDOC. We
agree.
The issuance of a writ of mandamus is proper where (1) the party seeking the writ
has a clear legal right to performance of the specific duty sought, (2) the
defendant has the clear legal duty to perform the act requested, (3) the act is
ministerial and involves no exercise of discretion or judgment, and (4) no other
remedy exists, legal or equitable, that might achieve the same result. [Lickfeldt v
Dep’t of Corrections, 247 Mich App 299, 302; 636 NW2d 272 (2001).]
This Court reviews a trial court’s decision regarding a writ of mandamus for abuse of discretion.
Id.
No statute, rule, or constitutional requirement provides a basis for plaintiff’s claim to a
clear legal right to sex offender therapy or to any other program that might improve his chances
of being paroled.1 A prisoner has no right or constitutionally protected right to parole, only a
hope or expectation of it. Hurst v Dep’t of Corrections, 119 Mich App 25, 28-29; 325 NW2d
615 (1982). Plaintiff also has no due process liberty interest that would require defendant to
facilitate his participation in group therapy or other programs designed to enhance his parole
chances. Sweeton v Brown, 27 F3d 1162, 1164-1165 (CA 6, 1994). In the absence of a clear
right to participate in the sex offender therapy program or to be excused from the therapy
requirement, plaintiff was not entitled to mandamus. Lickfeldt, supra. The trial court therefore
abused its discretion in granting summary disposition for plaintiff.
We reverse.
/s/ Richard A. Bandstra
/s/ Peter D. O’Connell
I concur in result only.
/s/ Joel P. Hoekstra
1
Plaintiff’s reliance on policy directive 04.01.105(O) is misplaced. That directive is not a “rule”
with the force of law as it “does not affect the rights of, or procedures and practices available to
the public.” MCL 24.207(g). Further, no statute requires that such a policy directive regarding
treatment programs be promulgated. MCL 24.207(k). Even if policy directive 04.01.105(O) had
the force of law, it does not guarantee plaintiff the right to participate in the treatment program
by his own rules, i.e., while maintaining his innocence. Finally, the record shows that this policy
directive is no longer in effect.
-2-
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