Jones v. Department of Corrections 468 Mich. 646

*648Young, J.

We granted leave to appeal in this case to consider whether plaintiff parolee was properly discharged from prison where defendant, the Department of Corrections, failed to conduct a timely fact-finding hearing under MCL 791.240a on plaintiffs parole violation charges.1 Because we conclude that nothing in the plain language of MCL 791.240a permits the release of a parole violator under the circumstances of this case and that the appropriate remedy for the department’s failure to timely conduct a fact-finding hearing is a writ of mandamus, we reverse the judgment of the Court of Appeals, dismiss plaintiff’s complaint for habeas corpus relief and reinstate the order of the parole board revoking plaintiff’s parole.

I. FACTUAL AND PROCEDURAL BACKGROUND

In October 1998, plaintiff was paroled from sentences imposed for controlled substances convictions. Plaintiff tested positively for cocaine on several occasions after his release on parole, and his original twenty-four-month parole term was extended because of various parole violations prior to those at issue in this case.2 In February 2001, plaintiff again tested positively for cocaine, and he subsequently failed to report to his parole officer. These two parole violation charges were first detailed in a warrant issued February 13, 2001. A third parole violation charge was *649added on March 12, 2001, charging plaintiff with fleeing and eluding police.3

Plaintiff waived his right to a preliminary hearing under MCL 791.239a. On April 19, 2001, plaintiff appeared before a Department of Corrections administrative law examiner (ale) and received notice of the charges against him and the time, place, and purpose of the fact-finding hearing as required by MCL 791.240a(2). Plaintiff admitted that he had used cocaine and had failed to report to his parole officer. However, plaintiff denied the third parole violation charge, the commission of the criminal offense of fleeing and eluding police. Plaintiff asked to present evidence in mitigation of the parole violations pursuant to MCL 791.240a(2)(d). He did not object to the date of the fact-finding hearing, which was scheduled for May 16, 2001.

At the fact-finding hearing, the ale noted that the plaintiff had pleaded guilty of the first two counts alleging violation of the conditions of parole. The third count, alleging commission of a criminal offense, was dismissed pursuant to MCL 791.240a(l) for failure to hold a hearing within forty-five days of the date of plaintiffs arrest, March 11, 2001. Nevertheless, the ale accepted evidence in mitigation of that offense.4 The ale determined that plaintiff was in violation of the conditions of his parole as charged in the first two counts of the warrant, ruling that plaintiff’s guilty plea provided a sufficient factual basis to establish the charged violations by a preponderance *650of the evidence. The ale recommended a revocation of plaintiff’s parole and continuation of plaintiff’s incarceration for eighteen months before again considering plaintiff for parole.5 The parole board adopted the ale’s recommendation.

Plaintiff filed a complaint for a writ of habeas coipus in the circuit court, contending that he was entitled to discharge from prison because the fact-finding hearing was not held until the sixty-sixth day of his availability for return to a state correctional facility. The circuit court denied the requested relief. Plaintiff then filed a complaint for habeas corpus relief in the Court of Appeals,6 which entered an order of habeas corpus discharging plaintiff from prison and returning him to the jurisdiction of the parole board. Unpublished opinion per curiam, issued November 30, 2001 (Docket No. 236835).

The Attorney General, on behalf of the Department of Corrections, filed an application for leave to appeal the judgment of the Court of Appeals. This Court issued a stay of the Court of Appeals decision and granted defendant’s application for leave to appeal. 467 Mich 884 (2002).

*651II. STANDARD OF REVIEW

At issue in this case is whether a parolee accused of a parole violation is entitled to discharge from prison where a fact-finding hearing on the charge is not held within forty-five days as required by MCL 791.240a(l). This Court reviews de novo the interpretation and application of a statute as a question of law. Cruz v State Farm Mut Automobile Ins Co, 466 Mich 588, 594; 648 NW2d 591 (2002); People v Thousand, 465 Mich 149, 156; 631 NW2d 694 (2001). If the language of the statute is clear, “no further analysis is necessary or allowed to expand what the Legislature clearly intended to cover.” Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644 NW2d 730 (2002).

in. ANALYSIS

A. MCL 791.240a(l)

A prisoner enjoys no constitutional or inherent right to be conditionally released from a validly imposed sentence. See Greenholtz v Inmates of Nebraska Penal & Correctional Complex, 442 US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979); People v Malmquist, 155 Mich App 521; 400 NW2d 317 (1986).7 Furthermore, parole revocation is not a stage of a criminal prosecution. See Gagnon v Scarpelli, 411 US 778, 782; 93 S Ct 1756; 36 L Ed 2d 656 (1973); Morissey v Brewer, 408 US 471, 480; 92 S Ct 2593; 33 L Ed 2d 484 *652(1972). However, pursuant to Morrissey, limited due process requirements, including notice and the opportunity to be heard, apply to the loss of liberty occasioned by parole revocation.

The granting, rescission, and revocation of parole in Michigan is overseen by the Bureau of Pardons and Paroles pursuant to MCL 791.231 el seq. This statutory scheme makes clear that, with limited exception,8 matters of parole lie solely within the broad discretion of the parole board, and that the freedom enjoyed by a paroled prisoner is a limited freedom.9 The release of a prisoner on parole “shall be granted solely upon the initiative of the parole board,” MCL 791.235(1), and a paroled prisoner remains in the legal custody and under the control of the Department of Corrections, MCL 791.238(1). A parole is “a permit to the prisoner to leave the prison,” not a release. MCL 791.238(6). Furthermore, a parolee may be arrested without a warrant where there exists reasonable cause to believe that he has violated parole. MCL 791.239.

The procedural requirements of MCL 791.240a serve to protect the due process interests, as outlined by Morrissey, of a parolee whose liberty is at stake by virtue of a charge of parole violation. However, *653contrary to the holding of the Court of Appeals in this case, MCL 791.240a neither deprives the parole board of jurisdiction to revoke parole nor requires the discharge of a parolee where the required hearing has been delayed beyond the forty-five-day period prescribed.

MCL 791.240a(l) provides:

Within 45 days after a paroled prisoner has been returned or is available for return to a state correctional facility under accusation of a parole violation other than conviction for a felony or misdemeanor punishable by imprisonment under the laws of this state, the United States, or any other state or territory of the United States, the prisoner is entitled to a fact-finding hearing on the charges before 1 member of the parole board or an attorney hearings officer designated by the chairperson of the parole board. The fact-finding hearing shall be conducted only after the accused parolee has had a reasonable amount of time to prepare a defense. The fact-finding hearing may be held at a state correctional facility or at or near the location of the alleged violation.

The Court of Appeals “reluctantly” held that it was required, pursuant to this Court’s decision in Stewart v Dep’t of Corrections, 382 Mich 474; 170 NW2d 16 (1969), to order plaintiff’s release from prison because the fact-finding hearing was not held within forty-five days of his availability for return to the Department of Corrections as required by MCL 791.240a(l). The panel further opined that habeas corpus relief was appropriate on the basis of this Court’s order granting such relief to an alleged parole violator in In re Lane, 377 Mich 695 (1966), after a Court of Appeals panel had determined that a writ of mandamus was the appropriate remedy for the failure *654to hold a timely parole violation hearing.10 However, the panel urged this Court to reconsider Stewart and Lane\

In light of these Supreme Court cases, we have little option but to grant plaintiffs requested relief. However, we urge defendant to seek review in the Supreme Court and for the Supreme Court to reverse us. We agree with our prior opinion in Lane [2 Mich App 140; 138 NW2d 541 (1965)] that mandamus is a more appropriate remedy than habeas corpus. We see little rational reason to require that plaintiff be returned to parole status. It would seem to us that if defendant violates the forty-ñve-day rule, it could properly be remedied by mandamus. It might perhaps even be appropriate to require that a parolee be released from detention on the forty-sixth day. However, we find nothing in the statute or in common sense to justify entitling plaintiff to a return to parole status, particularly in light of parole violations to which he has admitted. [Slip op at 2.]

In Stewart, the plaintiff was charged with several alleged parole violations. The plaintiff admitted his guilt on some of the charges. Although the plaintiff demanded a formal hearing under former MCL 791.240, the predecessor of the current MCL 791.240a,11 in light of the plaintiffs admission of guilt the parole board denied the request for a hearing.

*655This Court affirmed the judgment of the Court of Appeals granting the plaintiffs writ of superintending control against the Department of Corrections, holding that

[t]he failure of the parole board to conduct the hearing provided for by the statute within 30 days constituted, in effect, a waiver of any claim based upon these violations since the alleged violations were not “a felony or misdemeanor under the laws of this state.”[12] We further conclude that, under these circumstances, the plaintiff is entitled to be discharged from prison but he will remain under the jurisdiction of the parole board as per their order of December 9, 1966. [Stewart, supra at 479.]

The Stewart Court erred, in our judgment, by engrafting onto the terms of former MCL 791.240 a remedy that had no basis in the plain language of the statute. As we have recently noted on several occasions, “ ‘our judicial role precludes imposing different policy choices than those selected by the Legislature, [and] our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute.’ ” People v Sobczak-Obetts, 463 Mich 687, 694-695; 625 NW2d 764 (2001), quoting People v McIntire, 461 Mich 147, 152; 599 NW2d 102 (1999). In *656determining that the parole board had waived its authority and that the plaintiff was entitled to discharge, the Stewart Court created a remedy for a violation of former MCL 791.240 that was not grounded anywhere in the statutory scheme and thus exceeded its judicial authority.13

We decline to impose the relinquishment of the parole board’s statutory authority14 to revoke parole as a remedy for a violation of the forty-five-day limitation period provided in MCL 791.240a(l). To infer such a legislative intent where none is indicated either in the text of MCL 791.240a or elsewhere in the statutory scheme “would be an exercise of will rather than judgment.” People v Stevens (After Remand), 460 Mich 626, 645; 597 NW2d 53 (1999) (emphasis in original). We overrule Stewart to the extent that it conflicts with today’s holding.15

*657b. response to the dissent

The dissent, invoking the so-called “reenactment rule,” asserts that because the post-Stewart revisions to MCL 791.240 and MCL 791.240a do not “clearly show an intention to undo this Court’s holding in Stewart,” we must assume that the Legislature intended to adopt the extra-statutory remedy imposed by the Stewart Court. We decline to impose on the Legislature any such duty to “clearly show” its intention to repudiate any judicial construction with which it disagrees.

As we have recently explained in People v Hawkins, 468 Mich 488; 688 NW2d 602 (2003), the reenactment rule cannot be used as a tool to circumvent the plain and unambiguous language of a statute. Nothing in the language of MCL 791.240a indicates the Legislature’s intent to adopt the Stewart Court’s holding that the parole board waives its right to pursue parole violation charges by failing to conduct a hearing within the statutory period. While the dissent opines that the Legislature’s failure to affirmatively limit the holding in Stewart is indicative of its approval of that holding, an equally plausible conclusion to be drawn from the Legislature’s silence is that it intended to reject the Stewart Court’s analysis. See Hawkins, supra at 502-503 n 12.

“[0]ur most fundamental principle of statutory construction [is] that there is no room for judicial interpretation when the Legislature’s intent can be ascertained from the statute’s plain and unambiguous language.” Hawkins, supra at 510. Because there is no clear indication in the language of MCL 791.240a(l) that the Legislature intended to either adopt or repu*658diate the Stewart Court’s imposition of an extra-statutory remedy for a violation of that statute, we decline to apply the reenactment rule in this case.

C. APPROPRIATE REMEDY FOR A VIOLATION OF MCL 791.240a(l)

Where an official has a clear legal duty to act and fails to do so, the appropriate remedy is an order of mandamus. See In re MCI, 460 Mich 396, 442-443; 596 NW2d 164 (1999); Lickfeldt v Dep’t of Corrections, 247 Mich App 299, 302; 636 NW2d 272 (2001).16 Where, as here, the Legislature has established a clear, ministerial duty, but has failed to prescribe any consequence for a violation of that duty, a plaintiff may seek a writ of mandamus to compel compliance with the statutory duty. Accordingly, we agree with the suggestion of the Court of Appeals in this case— and in Lane, 2 Mich App 144 — that the proper remedy for the failure to hold a timely hearing as required by MCL 791.240a(l) is a complaint for an order of mandamus rather than for a writ of habeas corpus.17

IV. CONCLUSION

Because nothing in the text of MCL 791.240a or the remainder of the statutory scheme governing paroles indicates a legislative intent that a violation of the *659forty-five-day time limit established by MCL 791.240a(l) requires the discharge of a prisoner, we reverse the decision of the Court of Appeals and reinstate the order of the parole board revoking plaintiffs parole. The appropriate remedy for a violation of the forty-five-day requirement is a writ of mandamus. To the extent that this Court’s decisions in Stewart and Lane conflict with today’s holding, they are overruled.

Corrigan, C.J., and Taylor and Markman, JJ., concurred with Young, J.

Weaver, J.

(concurring).

I join in all but part iii(b) of the majority opinion. As I noted in my concurring opinion in People v Hawkins, 468 Mich 488; 688 NW2d 602 (2003), I believe that the reenactment rule may be relied on in cases where it is appropriate.

Cavanagh, J.

I respectfully disagree with the majority. Plaintiff is a prisoner whose parole was revoked by the parole board. The issue presented is whether the parole-violation charges against plaintiff must be dismissed because the fact-finding hearing on the charges was not held within forty-five days, as required by MCL 791.240a.1 In response to plaintiff’s complaint for a writ of habeas corpus, the Court of Appeals ruled that pursuant to existing case law, plaintiff’s requested relief must be granted and plaintiff must be discharged from prison and returned to the jurisdiction of the parole board. For the reasons *660articulated below, I would affirm the decision of the Court of Appeals.

i

Whether the parole-violation charges against plaintiff must be dismissed because the fact-finding hearing on the charges was not held within forty-five days, as required by MCL 791.240a, is a matter of statutory interpretation. A matter of statutory interpretation is a question of law, which this Court reviews de novo. People v Morey, 461 Mich 325, 329; 603 NW2d 250 (1999).

MCL 791.240a provides in pertinent part:

(1) Within 45 days after a paroled prisoner has been returned or is available for return to a state correctional facility under accusation of a parole violation other than conviction for a felony or misdemeanor punishable by imprisonment under the laws of this state, the United States, or any other state or territory of the United States, the prisoner is entitled to a fact-finding hearing on the charges before 1 member of the parole board or an attorney hearings officer designated by the chairperson of the parole board. The fact-finding hearing shall be conducted only after the accused parolee has had a reasonable amount of time to prepare a defense. The fact-finding hearing may be held at a state correctional facility or at or near the location of the alleged violation.[2]

*661In Stewart v Dep’t of Corrections, 382 Mich 474, 477; 170 NW2d 16 (1969), this Court considered the predecessor of MCL 791.240a, which stated:

*662“Whenever a paroled prisoner is accused of a violation of his parole, other than the commission of, and conviction for, a felony or misdemeanor under the laws of this state, he shall be entitled to a fair and impartial hearing of such charges within 30 days before 2 members of the parole board under such rules and regulations as the parole board may adopt. Upon such hearing such paroled prisoner shall be allowed to be heard by counsel of his own choice, at his own expense, and may defend himself, and he shall have the right to produce witnesses and proofs in his favor and to meet the witnesses who are produced against him.” [MCL 791.240.]

Stewart’s parole agent submitted a parole-violation report charging that the plaintiff had unlawfully absconded from the jurisdiction, and a parole-violation warrant was issued. Subsequently, the plaintiff pleaded guilty to a misdemeanor charge in St. Louis, Missouri. He was released to the custody of the Michigan Parole Board, which denied his request for a formal hearing. The parole board’s reasoning for denying the hearing was that the evidence Stewart proposed to offer would be “ ‘incompetent, immaterial, and unduly repetitious,’ ” given that he had already admitted his guilt on some of the charges. Stewart, supra at 477.

This Court agreed with the Court of Appeals analysis rejecting defendant’s interpretation of the statute:

“In our [the Court of Appeals] opinion the parole board misreads the statute. An alleged parole violator (other than one accused of the commission of, and conviction for, a felony or misdemeanor ‘under the laws of this State’) is entitled to a fair and impartial hearing within 30 days, at such hearing to be heard by counsel and to produce witnesses and proofs in his favor and to meet the witnesses produced against him, without regard to whether he admits his guilt. The statute provides that all such alleged parole violators, *663not merely those that deny guilt, are entitled to such a hearing. The petitioner asserts he requested such a hearing which assertion was neither denied in the affidavit filed in response to the original petition or in the attorney general’s briefs filed in response to petitioner’s complaint and our order. Those responses merely state that the petitioner’s rights were explained to him, that he freely admitted his guilt, and therefore it was not necessary to conduct a hearing.” [Id. at 478.]

The Court further stated:

We agree with the Court of Appeals’ rejection of defendant’s construction of the statute applicable to this appeal.

We affirm the [decision of the] Court of Appeals. The failure of the parole board to conduct the hearing provided for by the statute within SO days constituted, in effect, a waiver of any claim based upon these violations since the alleged violations were not “a felony or misdemeanor under the laws of this state.” We further conclude that, under these circumstances, the plaintiff is entitled to be discharged from prison but he will remain under the jurisdiction of the parole board as per their order of December 9, 1966. [Id. at 479 (emphasis added).]

The version of the statute at issue in Stewart, MCL 791.240, was repealed by 1968 PA 192.3 However, at the same time that it was repealed, the substance of that provision was reenacted in MCL 791.240a. The 1968 version of this provision stated:

Within 30 days after a paroled prisoner has been returned to a state penal institution under accusation of a violation of his parole, other than the conviction for a felony or mis*664demeanor punishable by imprisonment in any jail, a state or federal prison under the laws of this state, the United States or any other state or territory of the United States, he shall be entitled to a hearing on such charges before 2 members of the parole board. Hearings shall be conducted in accordance with rules and regulations adopted by the director, and the accused prisoner shall be given an opportunity to appear personally or with counsel and answer to the charges placed against him. [1968 PA 192.4]

Subsequent amendments of MCL 791.240a have taken effect in 1982, 1985, and 1994. The 1982 amendments are especially relevant because they altered the time requirement for the formal hearing, increasing it from thirty days after a paroled prisoner has been returned or is available to forty-five days after a paroled prisoner has been returned or is available. The 1982 version of MCL 791.240a(l) stated in pertinent part:

Within 45 days after a paroled prisoner has been returned or is available for return to a state penal institution under accusation of a violation of parole, other than the conviction for a felony or misdemeanor punishable by imprisonment under the laws of this state, the United States, or any other state or territory of the United States, the prisoner is entitled to a fact-finding hearing on the charges before 1 member of the parole board or an attorney hearings officer designated by the chairperson of the parole board. The fact-finding hearing shall be conducted only after the accused parolee has had a reasonable amount of time to prepare a defense. The fact-finding hearing may be held at a state penal institution or at or near the location of the alleged violation. [1982 PA 314.]

*665No revisions were made to the statute, as it was reenacted in 1982, to limit this Court’s conclusion in Stewart that the failure to conduct the formal hearing within the requisite time constitutes a waiver of any claim based on the alleged parole violations, nor have any such revisions been made in amendments after the 1982 version of MCL 791.240a. While this Court has disavowed the doctrine of legislative acquiescence in previous cases,5 this case represents something more than legislative acquiescence, or discerning legislative intent from the Legislature’s failure to take any action. In the present case, the Legislature has acted several times to reenact and revise the statute, even increasing the time limit for the fact-finding hearing from thirty days to forty-five days. However, none of the subsequent revisions to the statute since Stewart was decided can be construed as limiting this Court’s conclusion in Stewart that the failure to conduct the formal hearing within the requisite time constitutes a waiver of any claim based on the alleged parole violations. The Legislature is presumed to know “that when a statute, clause or provision thereof, has been construed by the court of last resort of this State and the same is substantially re-enacted the legislature adopts such construction, unless the contrary is clearly shown by the language of the act.” Jeruzal v Wayne Co Drain Comm’r, 350 Mich 527, 534; 87 NW2d 122 (1957).6 The language used by the *666Legislature in subsequent revisions of the provision at issue does not clearly show an intention to undo this Court’s holding in Stewart.

Therefore, I would affirm the decision of the Court of Appeals and order that the stay imposed on February 22, 2002, be lifted and that plaintiff be discharged from prison and returned to the jurisdiction of the parole board.

Kelly, J., concurred with Cavanagh, J.