REID v. DEPARTMENT OF CORRECTIONS, 463 Mich. 954 (2001)

621 N.W.2d 217

No. 116825 (65).Supreme Court of Michigan.
January 26, 2001.

COA: 201810, Court of Claims: 94-015497-CM, 94-015498-CM, 94-015499-CM and 94-015500-CM.

Reported below: 239 Mich. App. 621, 609 N.W.2d 215.

On order of the Court, the motion to waive fees is GRANTED. The application for leave to appeal from the February 8, 2000, decision of the Court of Appeals is considered, and it is DENIED because we are not persuaded that the questions presented should be reviewed by this Court.

Kelly, J., dissents and states as follows:

I would grant leave to determine whether damages for the violation of plaintiff’s state constitutional rights are warranted in this case. Smith v. Dep’t of Public Health, 428 Mich. 540, 410 N.W.2d 749
(1987).

A
On November 15, 1993, the Court of Appeals issued Lowe v Michigan Dep’t of Corrections, Docket No. 138095, 1993 WL 563022 (Lowe I). Lowe I
determined that the Michigan Department of Corrections (MDOC) applied good time credits when not appropriate, resulting in early discharge for prisoners convicted before December 30, 1982.[1] On November 29, 1993, the MDOC

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filed a motion for rehearing, arguing that the interpretation of the disciplinary credit statute in Lowe I violated the constitutional prohibition against ex post facto laws. The Court of Appeals granted the motion for rehearing on February 3, 1994.

Meanwhile, fourteen prisoners had been released under the MDOC’s pre-Lowe I calculations of good time credit. On January 27, 1994, the Director of the MDOC decided to regain custody of them. This cause of action involves four of those prisoners. They were arrested on February 9 and 10, 1994, pursuant to court orders issued after ex parte motions to rescind their discharges.

On February 15, 1994, plaintiff Lowe sought a stay of judgment on the basis of the Court of Appeals grant of a rehearing in Lowe I. A stay was issued on February 17, 1994. The four prisoners were released on February 18, 1994.

In July of 1994, the Court of Appeals upheld the MDOC’s position in a decision known as Lowe II. It held that Lowe I’s application of good time credits to prisoners convicted before December 30, 1982, violated the constitutional prohibition against ex post facto laws.

The four prisoners who had been reincarcerated filed suit against the MDOC, seeking damages for violation of their constitutional rights. The Court of Claims found that their rearrest and reincarceration did violate their constitutional rights, and awarded each plaintiff monetary damages. One was awarded $15,000, two were awarded $25,000 each, and another was awarded $30,000. The Court of Appeals reversed, 239 Mich. App. 621, 609 N.W.2d 215 (2000).

B
To establish a violation of the state constitution meriting damages, plaintiffs must show that the state adopted an official custom or policy that mandated state action violating their constitutional rights. Smith, supra at 544-545, 410 N.W.2d 749. Seizing individuals without probable cause and due process violates their constitutional rights. Smith, supra
at 644-645, 410 N.W.2d 749 (Boyle, J., concurring in part and dissenting in part); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Plaintiffs allege that the defendant’s conduct resulted in a denial of due process in violation of Const 1963, art 1, § 17, a denial of a fair investigation in violation of Const 1963, art 1, § 17, and in double punishment for the same offense in violation of Const 1963, art 1, § 15. Specifically, plaintiffs complain that the MDOC failed to furnish the court with all pertinent information when making its ex parte motion to rescind plaintiffs’ discharges. Also, plaintiffs were not provided with a pre-deprivation hearing before arrest or after, but were put into solitary confinement, without

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access to a lawyer or a phone. Plaintiffs allege that they had no idea why they where returned to prison. They argue a violation of their due process rights. They also argue that defendant did not establish probable cause to arrest them.

After the Court of Claims agreed, the Court of Appeals opined that it was not the MDOC’s actions that resulted in the deprivation of their liberty, but rather, those of the sentencing courts. I believe that the Court of Claims may have been correct when it found that it was the actions of the MDOC that violated plaintiffs’ state constitutional rights.

The Court of Claims found that the ex parte motions presented for each plaintiff left out an important consideration. The motions did not advise the courts that the Court of Appeals had granted the motion for rehearing in Lowe I. One of the judges who granted the MDOC’s ex parte motion and issued an arrest warrant testified that knowledge of the above would have affected his decision. An appellate judgment is not effective while a motion for rehearing is under consideration. MCR 7.215(E). On the basis of the judge’s testimony and the court rule, the Court of Claims determined that the actions of the MDOC violated plaintiffs’ due process rights.

I believe that the actions of the MDOC may have resulted in a deprivation of plaintiffs’ liberty in violation of the Michigan Constitution for the reasons articulated by the Court of Claims. I would grant leave to determine whether the Court of Appeals improperly reversed the Court of Claims verdict in favor of plaintiffs.

Markman, J., not participating.