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### STATE OF MICHIGAN

COURT OF APPEALS

PATRICK NEIL KINNEY,

Plaintiff-Appellant, UNPUBLISHED January 19, 2017

V No. 329588 Ingham Circuit Court DEPARTMENT OF CORRECTIONS, LC No. 15-000144-AA

Defendant-Appellee.

Before: O’C ONNELL , P.J., and M ARKEY and M URRAY , JJ.

P ER C URIAM

.

In this prison-misconduct appeal, plaintiff argues that the pr ison rule under which he was charged and adjudicated is uncons titutionally vague. We disagr ee and affirm.

Plaintiff was charged with violating Michigan Department of Co rrections (MDOC) Prisoner Discipline Policy Di rective 03.03.105, possession of d angerous contraband—escape material. The charge is based on a detailed drawing that plain tiff created that depicts the prison security perimeter from a vantage point inside the prison. The drawing includes the fence, support posts, guard tower, and light posts. Plaintiff claims that he created the drawing as an art project and that he intended on submitting it in a contest in w hich he had previously participated. Following a hearing, the misconduct charge was initially upheld . A hearings’ administrator who ordered a rehearing requested that the next hearing officer det ermine whether the drawing was escape material and whether plaintiff had sufficient notice tha t the drawing could be considered escape material. The hearing officer subsequently determined t hat even though plaintiff likely intended to use the drawing for an art project and not to attem pt to escape, he was nevertheless not authorized by prison staff to create the drawing. The hear ing officer also determined that the drawing was escape material based on the MDOC prisoner mail pol icy directive, which prohibits prisoners from receiving drawings or detailed descriptions of c orrections facilities that depict methods of escape. The hearing o fficer determined that plainti ff had sufficient notice that the drawing could be considered escape material, noting that the pr isoner mail policy clearly defines escape material as including a detailed drawing of a prison fac ility and that the mail policy “adds some of the lacking exemplifications in the pertinent part of t he Prisoner Discipline Policy.” Plaintiff’s initial guilty adjudication was upheld.

Plaintiff filed an appeal in the circuit court, arguing that t he prison rule pro hibiting escape material is unconstitutionally vague and that the hearing offic er’s decision that plaintiff’s-2- drawing was escape material was not supported by substantial ev idence. The circuit court affirmed, noting that the prisone r discipline policy did not de fine escape material but that the “common definitions of escape material would obviously find tha t drawings of prison facilities created with exacting details w ould constitute escape materials .” The court also noted that the mail policy defined escape materials, which put plaintiff on no tice that his drawing was prohibited. Addressing plaintiff’ s argument that other prisone rs had created similar drawings in the past and gone unpunished, the court noted that the other dr awings “were all stylized, artistic depictions,” while plaintiff’s dr awing “is of an identifiable s ection of fencing and includes the fence, support posts, guard towe r, light posts, and even snow b anks.” The court ultimately determined that plaintiff had fair notice that his conduct was prohibited and that the prison rule was not unconstitutionally vague.

When reviewing a decision of an administrative agency, a court must determine whether the decision was authorized by law and whether the agency’s fac tual findings were “supported by competent, material and substantial evidence.” Const 1963, art 6, § 28; MCL 791.255(4). This Court must then decide “whether the lower court applied co rrect legal principles and whether it misapprehended or grossly misapplied the substantial evidence to the agency’s factual findings.” Boyd v Civil Serv Comm , 220 Mich App 226, 234; 559 NW2d 342 (1996). This Court reviews de novo the interp retation of administrative regu lations. In re Petition of Attorney General for Investigative Subpoenas , 274 Mich App 696, 698; 736 NW2d 594 (2007).

Because the principles of statutory interpretation apply equal ly to the construction of administrative rules, City of Romulus v Mich Dep’t of Environmental Quality , 260 Mich App 54, 65; 678 NW2d 444 (2003), this Court should presume the prison r ule involved here to be constitutional, and plaintiff must prove it is invalid. See People v Sadows , 283 Mich App 65, 67; 768 NW2d 93 (2009)(citations omitted )(“A statute is presumed co nstitutional, and the party challenging the statute has the burden of proving its invalidit y.”). A statute may be challenged on vagueness grounds if it “does not provide fair notice of the conduct proscribed.” People v

Noble , 238 Mich App 647, 651; 608 NW2d 123 (1999). Fair notice, req uires that a statute give a person of ordinary intelligence a reasonable opportunity to kno w what is prohibited. Id. at 652. “A statute is sufficiently definite if its meaning can fairly b e ascertained by reference to judicial interpretations, the common law, dictionaries, treatises, or th e commonly accepted meanings of

words.” Id.

If an administrative rule’s language is unambiguous, further j udicial interpretation is not allowed, but where the language is ambiguous, a court may “prop erly go beyond the words of the

statute or administrative rule to ascertain the drafter’s inten t.” Id. An agency’s interpretation of its own administrative rule “is entitled to respectful consider ation and, if persuasive, should not be overruled without cogent reasons.” In re Complaint of Rovas Against SBC Mich , 482 Mich 90, 108; 754 NW2d 259 (2008). While “the agency’s interpretati on cannot conflict with the plain meaning of the statute,” it “can be particularly helpful for ‘doubtful or obscure’ provisions.” Id. (citation omitted).

The prisoner discipline polic y directive lists possession of d angerous contraband as a class I misconduct. According to the directive, dangerous cont raband includes “escape material,” but nowhere in the di rective is that phrase defined. Defendant urges this Court to look at the ordinary dictionary defin ition and the prisoner mail pol icy directive to interpret the phrase.-3- Given these tools of statutory construction, defendant contends , and we agree, it is clear that a detailed drawing of a prison fall s within the prohibited escape material and that plaintiff received fair notice of this prohibition. Plaintiff, on the other hand, suggests that he should not be required to read another policy directive to figure out what co nduct the phrase prohibits, and he contends that a plain reading of the prisoner discipline policy directive would not put him on notice that a drawing of a pris on intended for submission to an art show is prohibited conduct.

Under the doctrine of in pari materia , statutes or rules “that relate to the same subject or that share a common purpose shou ld, if possible, be read togeth er to create a harmonious body of

law.” People v Mazur , 497 Mich 302, 313; 872 NW2d 201 (2015). MDOC policy directive 03.03.105 is entitled prisoner discipline, outlines procedures for prisoner discipline, and lists the levels of misconduct. MDOC policy directive 05.03.118 is entit led prisoner mail, outlines rules regarding the mail system, and de scribes mail content that a pr isoner is prohibited from receiving. Thus, both directives proscribe certain conduct, an d the purpose of each directive is to regulate prisoner conduct and foster a safe environment for the facility. Because they share a common purpose, they shoul d be read together.

“Escape material” is not defined in policy directive 03.03.105 , and none of the listed “common examples” are comparable to the drawing at issue here. 1 MDOC policy directive 05.03.118 expressly prohibits “[m]a il depicting, encouraging, o r describing methods of escape from a correctional facility . . . includ[ing] blueprints, draw ings, or similar detailed descriptions

of correctional facilities. . . .” Id ., ¶ MM(16). Reading the two directives together because they

are in pari materia , one cannot question that “escape material” as used within pol icy directive 03.03.105, includes “blueprints, drawings, or similar detailed descriptions of correctional facilities,” policy directive 05.03.118. While plaintiff posit s that a “person of ordinary intelligence” should not be require d to read multiple policy di rectives to determine what conduct is prohibited, it is not unreasona ble to require prisoners—who are inherently subject to strict regulations—to know and understand all of the policy directives to which they are subject. Because a prisoner is subject to the policy prohibiting incomin g mail depicting escape methods such as drawings of correctional facilities, it is reasonable t o conclude that the policy prohibiting escape material includes the same type of drawings. Thus, we c onclude that plaintiff had fair notice that he was subject to discipline for possessing a detai led drawing of the correctional facility.

Plaintiff also incorporated into his vagueness argument claims that he was not given fair notice because prison staff allowed plaintiff to receive drawin gs of prisons through the mail and allowed other prisoners to make drawings of prisons in the pastwithout punishment. In support of his position, plaintiff relies heavily on Wolfel v Morris , 972 F2d 712 (CA 6, 1992). In Wolfel

, prisoners circulated the signature page of petitions among faci lity inmates. Id. at 714. The facility’s guards and officials seized the pages and charged th e prisoners with “possession of,

1 Both parties note that the policy directive has now been amend ed to include as common examples of escape material “blueprints, drawings, or similar d etailed descriptions of correctional facilities, courthous es, and medical care faciliti es.”-4- conspiracy to possess, or attempt to possess contraband” in vio lation of prison rules. Id. The Wolfelcourt noted that prisoners in the past had been allowed to cir culate numerous petitions without punishment. Id. at 717. Therefore, the court f ound that the prisoners charged in the case

“had no reason to believe that th ey were engaging in activity p rohibited by prison regulations,” noting that their conduct “was ‘v irtually identical to conduct previously tolerated.’ ” Id. , quoting

Waters v Peterson , 161 US App DC 265, 274; 495 F2d 91 (1973). Ultimately, the Wolfelcourt held that the prisoners’ punishment “violated their due process rights since they had no fair warning that they were enga ging in prohibited activity.” Id.

The case at hand is distinguishable from Wolfel . Contrary to plaintiff’s assertion, there is no evidence that prison official s allowed other prisoners to ma ke similar drawings in the past without punishment. The drawings that are included in the agen cy record are substantially different. Some include artistic imagery and are not intended to factually represent the details of an existing prison structure. T hey are not “detailed drawings” that depict the prison perimeter and highlight the intricacies of the prison security system. T he included drawings that do include some detail are from a vantage point outside of the facility. Plaintiff’s drawing depicts in detail a section of the prison perimeter from inside the facility, including the fence, posts, guard tower, lighting, and snow banks. Thus, the fact that these other draw ings did not trigger punishment does not negate the fair-notice analysis above or render the pr ison rule void for vagueness.

Plaintiff also references his intent as a factor to determine whether he had fair notice that his conduct was prohibited. Intent is neither a part of a vagu eness analysis nor a part of the rule under which plaintiff was charge d. A rule provides fair notice if it gives “a person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Noble , 238 Mich App at 652 (emphasis added). The rule at issue states nothing regarding i ntent—it merely prohibits a prisoner from possessing dangerous contraband, including escape material. Thus, even if plaintiff’s only intent were to submit his drawing to an art co mpetition, he was still given fair notice that he could not possess such a detailed drawing of a p rison. And the rule provided fair notice that his intent in possessing the drawing was not releva nt. Therefore, the administrative rule prohibiting escape materi al was not void for vagueness as applied to the facts of this case.

We affirm.

/s/ Peter D. O'Connell /s/ Jane E. Markey /s/ Christopher M. Murray