ROBERT S KELLY V PAROLE BOARD
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT S. KELLY,
UNPUBLISHED
October 28, 2010
Plaintiff-Appellant,
v
No. 292836
Ingham Circuit Court
LC No. 09-000293-AW
MICHIGAN PAROLE BOARD, and BARB
SAMPSON, Chairperson of Michigan Parole
Board,
Defendants-Appellees.
Before: MURPHY, C.J., and BECKERING and M.J. KELLY, JJ.
PER CURIAM.
Plaintiff appeals by right the circuit court’s order granting of defendants’ motion to
dismiss plaintiff’s complaint for mandamus and order denying plaintiff’s motion for rehearing.1
We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
I
In December 1987, plaintiff was convicted in a bench trial of indecent exposure, MCL
750.335a, and of being a sexually delinquent person, as defined in MCL 750.10a. The circuit
court originally sentenced defendant to life in prison, but this Court remanded for resentencing in
compliance with the applicable statute, see People v Kelly, 186 Mich App 524, 528-529; 465
NW2d 569 (1990), where after plaintiff received a sentence of one day to life. The Board denied
plaintiff parole on several occasions, and he has served 22 years thus far.
1
We reject defendants’ challenge to this Court’s jurisdiction over this appeal as of right.
Plaintiff initiated the circuit court action with the filing of a complaint for mandamus. Such an
action for mandamus is its own original action, not an appeal of the denial by defendant
Michigan Parole Board (“the Board”). See MCR 3.305; Morales v Parole Bd, 260 Mich App 29,
41-42; 676 NW2d 221 (2003). The circuit court’s language characterizing plaintiff’s mandamus
action as an “indirect” appeal of the Board’s decision does not change the fact that a mandamus
action in the circuit court (whether meritorious or not) is its own original action, not an appeal.
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Following a recent parole denial, plaintiff filed a complaint for mandamus in the circuit
court. He argued, among other things, that the reasons given for his denial were not substantial
and compelling, as required by MCL 791.233e(6). Plaintiff sought a writ of mandamus to
compel the Board to explain why the reasons provided were substantial and compelling, or to
compel the Board to grant him parole. He also challenged the Board’s jurisdiction, arguing that
because he was not sentenced to a minimum in terms of years, his sentence falls outside the
Board’s jurisdiction under MCL 791.234.
II
MCL 791.234(1) defines the scope of the Board’s jurisdiction over prisoners and states
that the Board has jurisdiction over prisoners sentenced with “a minimum in terms of years.”
The sentence range for the statute under which plaintiff was convicted, MCL 750.335a, is one
day to life. Therefore, according to plaintiff, because one day is not a term of years, and given
the plain and unambiguous language of MCL 791.234(1), the Board does not have jurisdiction
over plaintiff, and plaintiff is being denied the right to be fairly considered for parole. We
disagree.
Statutory interpretation is an issue of law that we review de novo. Casco Twp v
Secretary of State, 472 Mich 566, 571; 701 NW2d 102 (2005). We review the circuit court’s
decision to issue or deny a writ of mandamus for an abuse of discretion. Id. Similarly, we
review the denial of a motion for rehearing for an abuse of discretion. Ensink v Mecosta Co Gen
Hosp, 262 Mich App 518, 540; 687 NW2d 143 (2004).
“The primary goal of statutory interpretation is to give effect to the intent of the
Legislature. . . . If the statutory language is unambiguous, the Legislature is presumed to have
intended the meaning expressed in the statute and judicial construction is not permissible.”
Casco Twp, 472 Mich at 571.
The elements that establish whether a writ of mandamus should issue are: “(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.” Morales, 260 Mich App at 41. A prisoner may seek a writ
of mandamus to compel compliance with a statutory duty, id.; however, “mandamus is an
extraordinary remedy and it will not lie to review or control the exercise of discretion vested in a
public official or administrative body.” Id. at 41-42. Mandamus can be used to compel the use of
discretion where there is a duty to use discretion, but it cannot be issued to control how that
discretion is used. Teasel v Dep’t of Mental Health, 419 Mich 390, 409-410; 355 NW2d 75
(1984). The decision to grant or deny a prisoner parole is within the discretion of the Board.
Hopkins v Parole Bd, 237 Mich App 629, 637; 604 NW2d 686 (1999).
MCL 791.234(1) establishes the jurisdiction of the Board:
Except as provided in section 34a, a prisoner sentenced to an indeterminate
sentence and confined in a state correctional facility with a minimum in terms of
years other than a prisoner subject to disciplinary time is subject to the
jurisdiction of the parole board when the prisoner has served a period of time
-2-
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.
The express statutory language does include the phrase “term[] of years[,]” and the sentencing
minimum for plaintiff’s offense is one day. However, reading the statute literally, as plaintiff
suggests, would lead to an absurd result because no mechanism would exist for prisoners like
plaintiff to be released from prison aside from pardon or clemency.2 Neither statutes nor case
law indicate that plaintiff’s offense is non-parolable, or falls outside the Board’s jurisdiction.
The only way to avoid this absurd result is to conclude that MCL 791.234(1) grants the Board
jurisdiction over plaintiff and other similarly situated prisoners. See Rafferty v Markovitz, 461
Mich 265, 270; 602 NW2d 367 (1999) (stating that “statutes must be construed to prevent absurd
results”).
Plaintiff was considered for and denied parole by the Board. Therefore, the statutory
discrepancy has not denied plaintiff the right to be properly considered for parole. Consideration
for parole does not guarantee parole because prisoners have no constitutional or inherent right to
parole; it is within the Board’s discretion to deny parole. Morales, 260 Mich App at 39;
Hopkins, 237 Mich App at 637. The fact that plaintiff has been denied parole does not mean that
he has not been properly considered for parole.
MCL 791.233e(6) establishes that a prisoner with a high probability of parole under the
parole guidelines may be denied parole provided that substantial and compelling reasons for this
decision are provided in writing.
In order to establish that the circuit court abused its discretion in dismissing plaintiff’s
complaint for mandamus, plaintiff would first need to demonstrate that the elements that permit
the writ to be issued are met; he has not done so. A writ of mandamus cannot be issued to
control the exercise of the Board’s discretion. Teasel, 419 Mich at 409-410. The grant or denial
of parole is within the discretion of the Board. Hopkins, 237 Mich App at 637. The circuit court
could not have issued a writ compelling the Board to release plaintiff on parole; the circuit court
did not abuse its discretion and properly dismissed plaintiff’s complaint for mandamus.
Moreover, because the facts and circumstances of every parole consideration are
different, it is necessarily the case that the determination of what constitutes substantial and
compelling reasons for denying parole will be within the discretion of the Board. The Board can
only be compelled to provide reasons for denying a prisoner parole in order to fulfill its statutory
duty; however, a writ intended to control the Board’s exercise of this discretion in terms of the
nature of the reasons themselves cannot be issued. Teasel, 419 Mich at 409-410. In this case,
the Board provided reasons for its decision and, therefore, fulfilled this duty. The Board cannot
be compelled to exercise its discretion in a specific way.
2
Plaintiff cites MCL 8.3j, where the Legislature defined the word “year,” but as stated in MCL
8.3, the rules of statutory construction in sections 3a to 3w “shall be observed, unless such
construction would be inconsistent with the manifest intent of the legislature.”
-3-
Plaintiff’s motion for rehearing was properly denied; the relief plaintiff sought could not
be granted because no error occurred that rehearing could remedy.
Affirmed.
/s/ William B. Murphy
/s/ Jane M. Beckering
/s/ Michael J. Kelly
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