MIM Legal Notes 174
Double Jeopardy in Michigan: Double Standards
by a Michigan prisoner, member of the Political Prisoners of War Coalition
printed in MIM Notes no. 174

The 1963 Michigan Constitution Art. I, 15 double jeopardy provision provides that: "No person shall be subject for the same offense to be twice put in jeopardy."

Similarly, the United States Constitution Amendment V double jeopardy clause states "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb."

Supposedly, the Michigan Constitution double jeopardy provision provides greater protection from double punishment for the same offense than the federal constitution double jeopardy clause does,(1) however, where Michigan prisoners are concerned, the state and federal proscriptions against double jeopardy punishment are illusionary and amount to nothing more than meaningless prose; the worst kind of free-verse doggerel imaginable. The Michigan Supreme Court and Michigan Court of Appeals have all but admitted that prison disciplinary hearings are kangaroo courts. Of course they don't come right out and say so, but anyone with a fourth grade reading level can see through the hyperbole in their unjust decisions and arrive at the proper conclusion.

In People v. Powers, 272 Mich.303,307 (1935), the Michigan Supreme Court stated: "A person is in jeopardy when he is put upon trial in a court of justice charged with a violation of law." (emphasis supplied.) Twelve years later in the case of People v. Tillard, 318 Mich 619,623 (1947) the Court quoted the 'court of justice' language from Powers, supra. Needless to say, such lewd language does not bode well for the convict. The Court determined that a prisoner is not subjected to double jeopardy when his good time credits are forfeited after a criminal prosecution for escape in In re Evans, 352 Mich 185 (1953). It is interesting to note that the Evans opinion does not reveal whether the Court relied on the Michigan double jeopardy provision or the federal double jeopardy clause in reaching its holding. Evidently, the Court just took for granted that a convict is not entitled to state and/or federal constitutional protections when he is twice punished for the same offenses: something it should not have done. The Court had long held that litigants could not make a mere statement of position without an argument or citation of authority to support the issue. (See Neilands v. Wright, 134 Mich 77 (1903)). (2) A holding they should have applied to themselves.

In People v. Wilson, 6 Mich App 474 (1967), the Michigan Court of Appeals held that a prisoner who escaped from the State Prison of Southern Michigan and had his good time forfeited, who was then charged with the criminal offense of escape was not subjected to double jeopardy. The Court held that under either the 1963 Constitutional Article I, 15 or the Fifth Amendment there are two elements in the prohibition against double jeopardy: (1) There must be successive subjection to 'jeopardy,' and (2) in each instance the offense must be the same. Id. at 476. The Court deemed escape as constituting a violation of prison rules evoking the relevant good-time statute forfeiture provisions in addition to being a punishable felony offense. "The Michigan Supreme Court has consistently held that 'jeopardy' requires criminal prosecution in a court of justice." Id. at 477 (citing Powers and Tillard, supra). The Court ruled that there was no successive subjection to jeopardy because "the defendant's good time was forfeited [as] the statute requires, in an administrative proceeding and not in a criminal proceeding in a court of justice." Id.

In People V. Shastal, 26 Mich App347 (1970), a prisoner who was prosecuted for escaping from the Michigan Reformatory contended that he had been subjected to double jeopardy because his good-time was forfeited as a result of his escape and he was later convicted at a jury trial of the "same offense." Id. at 349. The Court of Appeals relied upon its holding in Wilson at 477 and found the defendant's jeopardy assertion meritless. Id. at 350.

The Court of Appeals held in yet another prison escape case, People v. Alexander, 39 Mich App 607 (1972) that it was in complete accord with the Wilson, supra decision, i.e., good-time forfeiture and subsequent prosecution for the same offense do not constitute double jeopardy. Id. at 609. However, the Court also held that if the defendant was in fact illegally incarcerated due to an improper method of time computation at the time he escaped, then he should not have been prosecuted under People v. Hamaker, 92 Mich 11 (1892) (holding that one cannot be convicted of escape if the incarceration is illegal,) and remanded the matter back to the trial court for further fact-finding with respect to the "legality of defendant's incarceration." Id. at 610-611.

Once again, the People v. Browns, 39 Mich App 424 (1972), the Court of Appeals relied upon In re Evans; Wilson; and Shastal, supra, in determining that defendant's contention that forfeiture of his earned good-time by Michigan Department of Corrections prior to his felony conviction for the same offense of escape amounted to double jeopardy was without merit. Id. at 425.

Being convicted at a bench trial for carrying a concealed weapon, to wit: a homemade knife at Jackson Prison subjected him to double jeopardy because his accumulated good-time was confiscated for the same crime at an administrative hearing was the contention in People v. Lewis, 42 Mich App 121 (1972). The Court of Appeals found that nothing in the record disclosed that the defendant had in fact had his good-time confiscated, or if it was actually confiscated, whether it was for possessing the knife. Nonetheless, the Court relied on Wilson and Shastal and stated that "the forfeiture of 'good-time' in an administrative proceeding does not amount to double jeopardy. In order to violate the constitutional prohibition against double jeopardy the double sentencing must occur in a criminal prosecution in a court of justice and not an administrative proceeding." Id. at 124. (See also People v. Bachman, 60 Mich App 682 (1973), Iv.den. 392 Mich 776 (1974) (same).

All of the foul decisions cited supra were decided prior to the landmark United States Supreme Court decision in Wolff v. McDonnell, 418 U.S. 539, 556-59; 94 S. Ct. 2963 (1974), which held that prisoners are entitled to safeguards of due process in disciplinary proceedings. The Court ruled that procedural due process affords prisoners facing forfeiture of statutory good-time to minimal precaution and identified five basic requirements prisoners are entitled to before they can be punished for violating prison rules. Id. at 563-71. (See e.g. Manville, Prisoners' Self-Help Litigation Manual (3rd ed 1995) (3) Ch. IV, D, pp.260-76; Columbia Human Rights Law Review, A Jailhouse Lawyer's Manual (4th ed 1995) (4) Ch. 27, C, pp. 829-32. However, the Wolff decision did not change the scope of the double jeopardy application, nor did a series of Michigan cases which hold that state prisoners receive far greater procedural protections than those mandated by Wolff. See e.g., 1963 Mich Const Art. VI, 28 (requiring judicial review of admin. Agency decisions); MCL 791.251 et seq.; MSA 28.2320 (51) te seq (statue for review of MDOC prison disciplinary hearings); Meadows v. Marquette Prison Warden, 117 Mich App 794 (1982); Campbell v. Marquette Prison Warden, 119 Mich Ap 377 (1982); Tocco v. Marquette Prison Warden, 123 Mich App 395 (1983) (standard of review requires "competent, material and substantial evidence on the whole record" to uphold prison disciplinary conviction), cf.with Superintendent v. Hill, 472 U.S. 445, 457; 105 S. Ct. 2768 (1985). Federal due process clause standard of review only requires "some evidence" to uphold prison disciplinary conviction. As far as prisoners are concerned, based solely on Michigan jurisprudence, laissez faire is the standard the courts really apply when upholding prison officials' violations of prisoners' rights, as evinced by post-Wolff double jeopardy cases, infra.

In PFefferle v. Corrections Commission, 86 Mich App 366 (1976), plaintiff sought a writ of mandamus(5) to compel the Commission to restore two years worth of accumulated good-time credits which had been confiscated after his escape from Jackson Prison. Nine months after the Warden entered an order forfeiting Pfefferle's good-time, Pfefferle initiated grievance proceedings and was granted a hearing. The Court of Appeals granted issuance of the writ on the basis that the procedures employed by the Warden to seize Pfefferle's good-time failed to comport with the due process requirements erected by the United States Supreme Court in Wolff 418 U.S. at 563-70 and ordered defendants to conduct a hearing which conforms to Wolff. Id. at 371-72. The Court also noted that "because the issue may arise again, we note that plaintiff's double jeopardy and/or equal protection arguments concerning loss of good-time have been previously rejected" and cited to Bachman, supra, and cases cited therein. Id. at 373.

Likewise, in People v. Bellafont, 105 Mich App 788 (1981), the Court of Appeals depended on Pfefferle and Bachman, supra, in finding that defendant's bench trial conviction for assaulting a prison guard after having already been required to relinquish earned good-time as a result of the very same offense did not constitute double jeopardy. Id. at 790.

Prisoners George C. Couch and Ronald L. Jordan at the Marquette Branch Prison brought a tort action against prison guard Timothy P. Schultz, asserting that he defamed them when he filed a major misconduct report charging them with sodomy. See Couch c. Schultz, 193 Mich App 292 (1992). The sole issue on appeal was one of first impression in Michigan; whether a disciplinary proceeding is a 'judicial proceeding' in which witnesses are afforded an absolute privilege from liability for defamation? Id. at 293. As would be expected, the Court of Appeals easily answered the question in the defendant's favor, holding that: "a prison disciplinary hearing is a 'judicial proceeding' and statements made in relation to such hearings are absolutely privileged." Id. at 294. The Court cited to a leading treatise, Prosser & Keeton, Torts (5th ed 1984) 114 Defamation and footnotes cited therein at pp.816-21, as authority for the proposition that " 'judicial proceedings' may include any hearing before a tribunal or administrative board that performs a judicial function." Id.

Further, the Court observed that the United States Court of Appeals for the Sixth Circuit in Shelly v. Johnson, 849 F. 2d 288, 230 (6th Cir. 1988) held that in Michigan "prison hearing officers are in fact professional hearing officers in the nature of administrative law judges" and entitled to absolute judicial immunity. The Shelly decision was primarily based on five factors:
(1)the statutory requirements that hearing officers be licensed attorneys under MCL 791.251(5); MSA28.2320(51)(5);
(2)the hearing officer's duties and roles are explained in detail in MCL 791.252; MSA28.2320(52);
(3)at the request of a prisoner upon a showing of bias or for legitimate reasons the hearing officer is required to recuse (disqualify) himself pursuant to MCL 791.252(i); MSA28.2320(52)(i);
(4)a hearing officer's decision must be in writing and include findings of fact in accordance with MCL 791.252(k); MSA28.2320(52)(k); and,
(5)MCL 791.255; MSA28.2320(55) mandates that a prisoner is entitled to judicial review of a hearing officer's decision (as noted, this last determinant is required under the Michigan constitution.)

After reviewing MCL 791.251 et seq,; MSA28.2320(51) et seq., the statutory scheme concerning Michigan prison disciplinary hearings, the Court found it supported the proposal that a prison disciplinary hearing is a judicial proceeding.(6) Id. at 296.

If a prison disciplinary hearing is a "judicial proceeding" for liability purposes in the civil context, then why is it not "a court of justice" for double jeopardy purposes in the quasi-criminal context? Inquiring convicts want to know! The answer begs the question.

Like its federal counterpart, the Michigan Constitution is not and never has been a static document.(7) Further, Michigan - like the other 49 states - is free to reject the method used by the U.S. Supreme Court and inferior federal tribunals in preference of a differentiated assay of its analogous constitutional guarantees, or to read its own constitutional provisions more expansively than the federal constitution is read by the U.S. Supreme Court.(8) Currently the Michigan courts make no pretense of being engaged in warfare on prisoners' rights as their vile published opinions indicate. One might justifiably assume the state tribunals are attempting to outperform the federal courts (who have long held there is no double jeopardy for disciplinary and criminal punishment for the same offense)(9) in divesting prisoners of their diminished constitutional rights.

Perhaps one day an outstanding jailhouse lawyer will be able to convince the Michigan Supreme Court to expand the Couch decision to encompass disciplinary hearings in prison to be "a court of justice" for double jeopardy purposes. After all, "justice must satisfy the appearance of justice." In re Murchison, 349 U.S. 133.136; 75 S. Ct. 623, 625 (1955). In the meantime - don't hold your breathe!!(10)

Notes:
1. See People v. Carter, 415 Mich 588,582, n. 26 (1982) "Michigan unlike some other states, has its own specific constitutional protection against double jeopardy. Const 1963, art.1, 15. Although the language of the state provision is nearly the same as that of the federal constitution, there are certain important differences between the state and federal tests used to establish a constitutional violation. Significantly, the Michigan rules offer broader double jeopardy protection than do the federal standards. Compared to federal interpretations, Michigan is more protective of defendants' double jeopardy rights with respect to multiple prosecution as well as multiple punishment. See People v. White, 390 Mich 245; 212 NW2d 222 (1973)."
2. See also Dolby v. State Highway Commission, 283 Mich 609 (1938); Arrand v. Graham, 297 Mich 559 (1941); Mitchell v. City of Detroit, 355 Mich 182 (1959); Goolsby v. Detroit, 419 Mich 651, 655, n.1 (1984); Kuzinski v. Boretti, 182 Mich App 177, 180 (1989); Alpena FOC v. Durecki, 195 Mich App 635, 639 (1992). On this point the list is endless.
3. The Prisoners' Self-Help Litigation Manual (3rd ed 1995) costs $29.95 and is available from Oceana Publications Inc. 75 Main Street Dobbs Ferry, NY 10522 USA (914) 693-8100.
4. A Jailhouse Lawyer's Manual (4th ed 1995) costs $13 and is available from Columbia Human Rights Law Review, Box B-25, Columbia University School of Law, 435 West 116th Street, New York, NY USA 10027.
5. See Michigan Court Rule (MCR) 3.305 and MCL600.4401 et seq.; MSA 27.4401 et seq. for court rule and statue on mandamus. As a general rule, mandamus will issue only to compel the performance of a ministerial act to which the plaintiff has a clear legal right and the defendant has a clear legal duty to perform. See e.g. Pillon v. Attorney General, 345 Mich 536 (1956); Lundberg v. Corrections Commission, 57 Mich App 327 (1975); Schweitzer v. Polygraph Examiners, 77 Mich App 749, 752-53 (1977) (collecting cases). See also Khan v. Warden, Jackson Prison, 128 Mich App 224 (1983) (good discussion on difference between mandamus and habeas corpus.
6. It should be noted that Michigan courts are not bound by a federal court's decision construing a Michigan statute. See Continental Motors Corp. v. Muskegon Twp., 365 Mich 191 (1961); Hardy v. Maxheimer, 429 Mich 422, 432 (1987). Michigan courts are not bound by U.S. Supreme Courts decisions. The Michigan Supreme Court is the final arbitrator in purely state questions. See Paley v. Coca Cola Co., 39 Mich App 379, 384 (1972). When there is no conflict, state courts are bound by the holdings of federal courts on federal questions; when an issue has divided the federal circuits, the state courts are free to choose the most appropriate view. See Schueler v. Weintrob, 360 Mich 621, 634 (1960); Kocsis v. Pierce, 192 Mich App 92, 98 (1991); Abdur-Ra'oof v. Dept. of Corrections, 221 Mich App 585, 589, (1997).
7. See Scholle v. Secretary of State, 360 Mich 1, 107 (1960) Black. J., dissenting).
8.See People v. Thompson, 424 Mich 118, 125 (1985); City of Mesquite v. Alladin's Castle, Inc., 455 U.S. 283,293; 102 S. Ct. 74, 81; 100 S. Ct. 2035 (1980). cf. With People v. Nash, 418 Mich 196 (1983); People v. Collins, 438 Mich 8 (1991); People v. Bullock, 440 Mich 15,30(1992); People v. Pickens, 446 Mich 298, 308-27 (1994); Sitz v. State Police (On Rem), 193 Mich App 690, 696 (1992).
9.See Manville, The Prisoners' Self-Help Litigation Manual (3rd ed 1995) Ch. IV, D, 1(s) pp.311-12 (collecting cases.)
10. See Couch, supra. I say this because there can be no doubt that a misconduct/disciplinary hearing which has been termed a "judicial proceeding" is not "a court of justice." See e.g. Trimble v. Morrish, 152 Mich 624, 627 (1908) where the Michigan Supreme Court stated "[a] communication absolutely privileged - as, for instance words spoken by a judge in his judicial capacity in a court of justice - is not actionable, even though spoken maliciously."(emphasis supplied)