Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

April 10, 2009

136728

PATRICK KINNEY, Plaintiff-Appellant,

v SC: 136728 COA: 277809 Ionia CC: 06-025197-AS DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the May 29, 2008 judgment of the Court of Appeals is consid ered and, pursuant to MCR 7.302(G)(1), we VACATE the judgment of the Court of Appe als and we REMAND this case to the Ingham Circuit Court. In light of the unique procedural f acts of this case, the circuit court shall afford the plaintiff direct review of his challenge to the defendant’s hearings officer’s decision, as presente d in File No. 04-001149-AA.

K ELLY , C.J. ( concurring ).

I concur in the order remanding this case to the circuit court and directing that court to consider plaintiff’s appeal of his assa ult conviction as an appe al of right. I write separately only to highlight the extraordinar y delays that occurred in this case and the

role that this Court should take in preventing such de lays in future cases.

F ACTS AND P ROCEDURAL B ACKGROUND

Plaintiff is an inmate in a state prison. He attempted an escape in 2003. Plaintiff

kicked a corrections officer who prevented his escape. Th e escape attempt led to four misconduct charges. Plaintiff pleaded guilty of three charges, but denied the fourth, a charge of assault and battery of a corrections officer. Plaintiff asse rted that he did not kick the officer intentionally, bu t was simply trying to break out of the officer’s grasp. A Department of Corrections (DOC) hearings officer found plaintiff guilty of the assault charge and later denied rehearing.2

Under MCL 791.255, plaintiff had 60 da ys from the delivery or mailing of that denial of rehearing, until May 3, 2004, to file an applica tion for direct review by the

circuit court. 1 He delivered his application to pr ison officials on Ap ril 14, 2004. The prison records show that plaintiff’s petition wa s placed in the outgoi ng mail the next day, April 15. But the Ingham Ci rcuit Court did not date-stamp the application as received until May 10, 2004, ten days after the filing deadline.

The circuit court issued an order allo wing plaintiff to resubmit his application within 21 days. Plaintiff’s new deadline was August 4, 2004. He delivered his application to prison officials well in advan ce of the deadline, on July 20. The prison records indicate that this app lication was placed in the outgoi ng mail on July 21. Again, however, the circuit court did not record the application as received until well after the deadline, on August 13 , 2004, 25 days after plaintiff deliv ered it to prison officials.

This time, the circuit court entered an order dismissing pl aintiff’s petition as untimely. Plaintiff sought delayed leave to appeal the order, but the Court of Appeals

denied it. This Court denied leav e to appeal on October 31, 2006.

Almost three full years after filing his application for review of his assault conviction, plaintiff sought supe rintending control in the Ionia Circuit Court. That court dismissed the complaint, adop ting the defendant’s reasoning that plaintiff’s only remedy had been a direct appeal of right to the circ uit court. The Court of Appeals affirmed the

dismissal.

Nearly five years after plaintiff filed the initial appeal challenging his assault conviction by the DOC hearing o fficer, this Court is finally granting plaintiff his day in court. The outrageousness of such a lengthy delay is obvious.

T HE P RISON -M AILBOX R ULE

This case strongly demonstrates the need for this Court to adopt a prison-mailbox rule. I have repeatedly advocated the adoption of such a rule in the past. 2 Here, the five-

1 MCL 791.255(2) provides:

Within 60 days after the date of delivery or mailing of notice of the decision on the motion or applicati on for rehearing, if the motion or application is denied or within 60 days after the decision of the department or hearing officer on the rehearing, a prisoner aggrieved by a final decision or order may file an application for dir ect review in the ci rcuit court in the county where the pe titioner resides or in the circ uit court of Ingham county.

2 People v Calbert , 480 Mich 1146, 1147 (2008) (Kelly, J., dissenting from denial of3

year delay would have been prevented had plaintiff’s pe tition been considered “filed” on the date he first handed it to prison authorities. 3 Fortunately, the Co urt recently opened

an administrative file on this issue and will soon be considerin g the merits of such a rule. 4

leave to appeal); Pugh v Dep’t of Corrections , 475 Mich 852-853 (2006) (Kelly, J., dissenting from denial of leave to appeal).

3 Justice Corrigan’s concern that “[w]e can make an informed administrative decision concerning a potential mailbox rule only with more specific information concerning the reasons for delay in cases such as this one” misse s the point. Certainly, it would be helpful to know the reasons for the delays in plaintiff’s maili ngs in this case. However, a prison-mailbox rule is not intend ed to enable courts to identify the cause of filing delays. Rather, it is intended to permit prisoners’ appeals to be heard if the necessary pleadings are put in the hands of prison authorities before the filin g deadline has expired. Granting plaintiff an appeal of his a ssault conviction is t hus not “premature,” as Justice Corrigan asserts, because plaintiff did everything possible to get his paperwork to the court clerk on time. This simple fact makes the polic y rationale behind the prison-mailbox rule applicable to this case, regardless of the cause of the delays.

My conclusion is consistent with the Un ited States Supreme Court’s reasoning in

Houston v Lack , 487 US 266 (1988) . In that case , the inmate also “had done all that could reasonably be expected” to ge t his application filed on time. Id. at 270, quoting

Fallen v United States , 378 US 139, 144 (1964). Theref ore, as here, the policy behind adopting a prison-mailbox rule centers around the fact th at “the moment at which pro se prisoners necessarily lose control over and c ontact with their notices of appeal is at delivery to prison authorities, not receipt by the clerk.” Id. at 275.

Finally, Justice Corrigan’s reference to a possi ble third delay in plaintiff’s mailings in support of her contention that a mailbox rule may be difficu lt to apply is misguided. First, the two delays in plaintiff’s mail discussed in this co ncurrence were both substantiated by DOC Disbursement Author ization Forms. The date and time the documentation was placed in the outgoing mail is shown on the forms. It is without dispute that the third mailing c ited by Justice Corrigan was timely. Hence, the form did not need to be included as part of plaintiff’s filings. There is no reason to believe another

DOC Disbursement Authorizati on Form is unavailable to show when plaintiff’s notice to the Court of Appeals was actually placed in the outgoing mail. Th e supposed third delay

is a distraction from the real issue and does not, as Justice Corrigan asserts, illustrate a situation “that would prevent the easy applic ation of a mailbox rule for prison inmates.”

4 Even if Justice Corrigan’s concerns were valid, I disagree that they should delay or prevent this Court from formulating a pris on-mailbox rule and su bmitting it for public comment. I believe the potential problems Justice Corrigan’s dissenting statement references could adequately be identifie d and rectified throu gh our administrative process. Approximately 20 states have ad opted the rule in so me form, see anno: Application of “prison mailbox rule” by stat e courts under state statutory and common4

C ONCLUSION

I fully concur in the order remanding this case to the circuit court to grant plaintiff a direct appeal as of right from his assault co nviction. This case re presents an egregious violation of plaintiff’s right to his day in court. This Court can prevent future such violations by adopting a versi on of the prison-mailbox rule di scussed in the United States Supreme Court’s opinion in Houston v Lack

. 5 I once again call upon this Court to do so.

C ORRIGAN , J. ( dissenting ).

I would remand this case to the trial cour t and order the Department of Corrections (MDOC) to show cause for the consistent de lays in transmitting the plaintiff inmate’s legal mail to the courts. First, the delays may have originated from the MDOC’s Baraga Maximum Correctional Facility, where plaintiff is housed. The MDOC is a party both to this suit and to the underlying suit in which plaintiff petitioned for judicial review of an MDOC hearing officer’s decision. The MDOC is also the beneficiary of the delays, which resulted in the dismissal of plaintiff’s petition in the underlying suit. Accordingly, it is appropriate to order the MDOC to expl ain the delays at a show cause hearing. Second, until the court has additional facts con cerning the cause of the delays, providing relief to plaintiff is premature. Finally, the courts will benefit from explicit fact-finding by the trial court in this case. Even if the delays originated with the MDOC, their causes remain a mystery. For example, in addition to the delays in mail to the trial court noted by Chief Justice Kelly, the record contains a notice mailed to the Court of Appeals and received by that court on June 23, 2008. The meter stamp from Baraga, Mich igan, on the face of the envelope suggests that the no tice was mailed over a m onth earlier, on May 19,

2008. Yet the back of the envelope reveals a second me ter stamp dated June 19, 2008. Accordingly, it is not clear whether this partic ular piece of mail was delayed at all; if its timeliness was at issue, the unexplained multiple meter stam ps presumably would prevent the easy application of a mailb ox rule for prison inmates, as described by Chief Justice Kelly, for this piece of mail. Thus, fact -finding in this case c oncerning the causes

law, 29 ALR 6th 237 § 4. I ha ve found nothing to suggest that states that adopted a prison-mailbox rule have encountered any of the problems raised by Justice Corrigan. Rather, the trend in courts across the country has been toward expansion of their prisonmailbox rules. See, e.g., Sulik v Taney Co, Missouri , 316 F3d 813 (CA 8, 2003) (joining

the other circuits that have considered the issue and holding that the prison-mailbox rule governs the determination of when a prison er’s civil complaint has been filed).

5 Houston v Lack , 487 US 266 (1988).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk April 10, 2009

0407 5

for the delays to plaintiff’s mail will shed light on whether a mailbox rule is necessary

and desirable. We can make an informed administrative decision concerning a potential mailbox rule only with more specific inform ation concerning the reasons for delay in

cases such as this one.

Y OUNG , J., joins the statement of C ORRIGAN , J.