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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

TREVOR KELLY,

Petitioner-Appellee,

UNPUBLISHED

August 3, 2017

v No. 334960

Wayne Circuit Court

PAROLE BOARD, LC No. 16-006014-AA

Respondant-Appellant.

Before: FORT HOOD, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ. 

PER CURIAM. 

Respondent, the Michigan Parole Board (“the Board”), appeals by leave granted1 a 

September 6, 2016 order of the Wayne Circuit Court reversing and remanding the Board’s 

decision to revoke the petitioner’s parole. We affirm. 

“[T]he Parole Board is an administrative body,” Morales v Mich Parole Bd, 260 Mich 

App 29, 34; 676 NW2d 221 (2003), and “[p]arole revocation proceedings are contested cases 

under the Administrative Procedures Act, [MCL 24.201 et seq.],” In re Parole of Bivings, 242 

Mich App 363, 369; 619 NW2d 163 (2000). “This Court has limited review of a trial court’s 

review of an agency determination.” Dana v American Youth Foundation, 257 Mich App 208, 

211; 668 NW2d 174 (2003). “This Court reviews a lower court’s review of an administrative 

decision to determine whether the lower court applied correct legal principles and whether it 

misapprehended or misapplied the substantial evidence test to the agency’s factual findings, 

which is essentially a clearly erroneous standard of review.” Vanzandt v State Employees 

Retirement Sys, 266 Mich App 579, 585; 701 NW2d 214 (2005). “A finding is clearly erroneous 

where, after reviewing the record, this Court is left with the definite and firm conviction that a 

mistake has been made. Id. This Court reviews the circuit court’s legal conclusions de novo. 

Davis v State Employees’ Retirement Bd, 272 Mich App 151, 152; 725 NW2d 56 (2006). “Great 

deference is accorded to the circuit court’s review of the administrative agency’s factual 

findings, however, substantially less deference, if any, is accorded to the circuit court’s 

determinations on matters of law.” Mericka v Dep’t of Community Health, 283 Mich App 29, 

36; 770 NW2d 24 (2009). 

 1 Kelly v Parole Board, unpublished order of the Court of Appeals, entered December 21, 2016 

(Docket No. 334960). 
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I.

On appeal, the Board first alleges that the circuit court improperly applied a de novo

standard of review when it determined that the Board’s revocation was contrary to law. We 

disagree. 

“Whether a circuit court applied the appropriate standard of review is a question of law 

that this Court reviews de novo.” Natural Resources Defense Council v Dep’t of Environmental 

Quality, 300 Mich App 79, 87; 832 NW2d 288 (2013) (NRDC). 

Although the circuit court did not explicitly state which standard of review it employed, 

the Board asserts that the circuit court’s review was de novo because its decision was limited to 

conclusions without legal reasoning, failed to address the decision of the administrative law 

examiner (“ALE”), and invoked the circuit court’s own policy decisions regarding the cost of 

incarceration to substitute for the discretion of the Board. The Board does not challenge any of 

these actions as individual errors on the part of the circuit court, and we need not address them as 

such. The Board argues only that these factors support the conclusion that the circuit court 

exercised its review of the Board’s decision without granting the appropriate deference. 

The Board asserts that the circuit court’s chosen standard of review was de novo, but

provides little argument for its assertion that the circuit court’s standard of review was wrong. 

Therefore we could consider the issue to have been abandoned on appeal. DeGeorge v Warheit, 

276 Mich App 587, 594-595; 741 NW2d 384 (2007) (“It is not enough for an appellant to simply 

announce a position or assert an error in his or her brief and then leave it up to this Court to 

discover and rationalize the basis for the claims, or unravel and elaborate the appellant’s 

arguments, and then search for authority either to sustain or reject the appellant’s position.”) In 

support of its argument, the Board simply quotes Article 6, § 28 of Michigan’s 1963 

Constitution, which sets forth guidelines for the judicial review of administrative actions. Const 

1963, art 6, § 28. Article 6, § 28 of the Michigan Constitution provides, in pertinent part:

This review shall include, as a minimum, the determination whether such final 

decisions, findings, rulings and orders are authorized by law; and, in cases in 

which a hearing is required, whether the same are supported by competent, 

material and substantial evidence on the whole record. [Const 1963, art 6, § 28.]

Based on this provision, the Board suggests that the proper standard for judicial review of 

administrative cases is simply whether the decision was supported by competent, material, and 

substantial evidence on the whole record. However, the Board forgets that a circuit court’s 

review of an agency decision includes evaluating whether the decision was “authorized by law.” 

Indeed, the Administrative Procedures Act (“APA”), MCL 24.201 et seq., sets forth a number of 

circumstances to support the finding that an agency decision was not authorized by law, 

specifically directing trial courts: 

(1) Except when a statute or the constitution provides for a different scope of 

review, the court shall hold unlawful and set aside a decision or order of an 

agency if substantial rights of the petitioner have been prejudiced because the 

decision or order is any of the following:
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(a) In violation of the constitution or a statute.

(b) In excess of the statutory authority or jurisdiction of the agency.

(c) Made upon unlawful procedure resulting in material prejudice to a party.

(d) Not supported by competent, material and substantial evidence on the whole 

record.

(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of discretion.

(f) Affected by other substantial and material error of law. 

(2) The court, as appropriate, may affirm, reverse or modify the decision or order 

or remand the case for further proceedings. [MCL 24.306.]

“[T]he APA’s standards of review coincide with the authorized-by-law standard provided 

in the [C]onstitution[.]” Northwestern Nat Cas Co v Ins Com’r, 231 Mich App 483, 489-490; 

586 NW2d 563 (1998), citing MCL 24.306. The Michigan Constitution therefore sets forth the 

minimum requirements, but the more specific guidelines enunciated in MCL 24.306 govern in a 

contested agency case. Id at 490. Notably, the APA’s language is mandatory, requiring a trial 

court to hold unlawful and set aside an agency decision contrary to law in any of the listed ways. 

MCL 24.306(1). Contrary to the Board’s assertions on appeal, neither the Constitution nor the 

APA’s guidelines permit an inference of necessary discretion to an agency decision when 

matters of law are at issue. “The circuit court’s review of an administrative agency’s decision on 

a matter of law is limited to determining whether the decision was authorized by law.” City of 

Romulus v Mich Dep’t of Environmental Quality, 260 Mich App 54, 64; 678 NW2d 444 (2003). 

However, “[a]n agency’s decision that is in violation of statute [or constitution], in excess of the 

statutory authority or jurisdiction of the agency, made upon unlawful procedures resulting in 

material prejudice, or is arbitrary and capricious, is a decision that is not authorized by law and 

must be set aside.” Id. (quotations and citations omitted.) 

The circuit court rested its ultimate decision on perceived legal errors, including 

“significant due process issues,” concluding that the Board’s revocation decision was “contrary 

to law.” Thus, the Board is incorrect when it argues that the trial court applied the wrong 

standard of review. 

II. 

Next, the Board contends that the circuit court erred when it found that there was 

insufficient evidence to support the ALE’s finding of constructive possession of a firearm. We 

disagree. 

Whether knowing intent to exert control is an element of constructive possession is a 

legal question requiring the interpretation of administrative rules. This Court reviews de novo 

the interpretation and application of unambiguous administrative rules. City of Romulus, 260 

Mich App at 64-65. Regarding unambiguity, “this Court will generally defer to the construction 

of the statute or administrative rule given by the agency charged with administering it.” Id. at 

65. This Court does not defer to the administrative agency’s interpretation of a rule where the 
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language of the rule is unambiguous, or when it is convinced that the agency’s interpretation is 

clearly wrong. Id. at 65-66. 

“The circuit court’s review of an administrative agency’s decision on a matter of law is

limited to determining whether the decision was authorized by law.” City of Romulus, 260 Mich 

App at 64. MCL 24.306 states that a circuit court “shall hold unlawful and set aside a decision 

or order of an agency if substantial rights of the petitioner have been prejudiced because the 

decision or order is . . . [i]n violation of the constitution or a statute,” MCL 24.306(1)(a), or 

“[a]ffected by other substantial and material error of law,” MCL 24.306(1)(f). Generally, a 

lower court reviews an agency’s factual findings to determine if “ ‘the same are supported by 

competent, material and substantial evidence on the whole record.’ ” Detroit Pub Sch v Conn, 

308 Mich App 234, 245; 863 NW2d 373 (2014), quoting Const 1963, art 6, § 28. Substantial 

evidence is defined as “that which a reasonable mind would accept as adequate to support a 

decision, being more than a mere scintilla, but less than a preponderance of the evidence.”

Vanzandt, 266 Mich App at 584. On review, the circuit court may not invade the province of the 

agency as fact-finder, resolve evidentiary disputes, or pass on witness credibility. Id. at 588. 

The Legislature has prescribed a higher standard for the sufficiency of evidence to 

support violations of parole, requiring through MCL 791.240a that a parole violation be 

supported by a preponderance of the evidence before revocation of parole may be considered. 

MCL 791.240a(8)-(10). Because this burden of proof is statutorily mandated, any parole 

violation finding not supported by a preponderance of the evidence violates a statute and is 

therefore not authorized by law. MCL 24.306(a); see Nat’l Wildlife Federation v Dep’t of 

Environmental Quality (No. 2), 306 Mich App 369, 372-373; 856 NW2d 394 (2014). However, 

when there is sufficient evidence, “the circuit court may not substitute its judgment for that of the 

agency, even if the court might have reached a different result.” Vanzandt, 266 Mich App at 

588. Whether the ALE’s parole violation finding was properly supported by a preponderance of 

the evidence first turns on the appropriate definition of “constructive possession.”

“Principles of statutory interpretation apply to the construction of administrative rules.” 

City of Romulus, 260 Mich App at 64-65. This Court’s goal is to ascertain and give effect to the 

intent of the drafter of the administrative rule under review. Colucci v McMillin, 256 Mich App

88, 94; 662 NW2d 87 (2003). This first requires an examination of the plain language of the 

rule. Id. An undefined statutory term is given its plain and ordinary meaning unless it is a term 

of art with a unique legal meaning. Mich AFSCME Council 25 v Woodhaven–Brownstown Sch 

Dist (AFSCME), 293 Mich App 143, 156; 809 NW2d 444 (2011); see also People v Flick, 487 

Mich 1, 11; 790 NW2d 295 (2010), quoting People v Covelesky, 217 Mich 90, 100; 185 NW 770 

(1921), superseded by statute on other grounds as recognized by People v Williams, 491 Mich

164, 171-173; 814 NW2d 270 (2012) (“A well recognized rule for construction of statutes is that 

when words are adopted having a settled, definite and well known meaning at common law it is 

to be assumed they are used with the sense and meaning which they had at common law unless a 

contrary intent is plainly shown.”). When the language of an administrative rule is unambiguous 

on its face, the drafter is presumed to have intended the meaning plainly expressed and further 

judicial interpretation is not permitted. Colucci, 256 Mich App at 94. An administrative rule is 

ambiguous “if it irreconcilably conflicts with another provision or is equally susceptible to more 

than a single meaning.” AFSCME, 293 Mich App at 155. 
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We find that the disputed language in Conditions 07 and 08 related to possession —“you 

must not . . . possess a firearm of any type,” and “you must not possess . . . any ammunition”—is 

unambiguous on its face. The parole conditions do not contain an explicit definition of 

“possession,” and we look to the plain and ordinary meaning of this commonly understood term. 

Merriam-Webster’s Collegiate Dictionary defines “possess” as “to have possession of, take 

possession of,” and “possession” as “the act of having or taking into control; control or 

occupancy of property without regard to ownership.” Merriam-Webster’s Collegiate Dictionary, 

Eleventh Edition (2014). “Possession” is also a legal term of art, but its legal meaning reflects its 

common definition. Relying on Black’s Law Dictionary, our Supreme Court recently defined 

“possession,” as “ ‘1.[t]he fact of having or holding property in one’s power; the exercise of 

dominion over property. 2.[t]he right under which one may exercise control over something to 

the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material 

object.’ ” Flick, 487 Mich at 12, quoting Black’s Law Dictionary (7th ed). Similarly, this Court 

recently defined “possession” as a term signifying dominion or right of control over an object 

with knowledge of its presence and character. People v Norfleet, ___ Mich App ___, ___; ___ 

NW2d ___ (2016), slip op at 4, citing People v Nunez, 242 Mich App 610, 615; 619 NW2d 550 

(2000). The Board has not put forth any other “common and accepted meaning” of the word 

“possess,” and we are not aware of one. Indeed, both parties cite criminal law decisions to 

support their definition of “constructive possession,” acknowledging that it is the legal meaning 

of “possession” that controls in this case. 

On appeal, the Board argues that to prove “possession,” evidence of mere knowledge and 

proximity is sufficient. But this interpretation is contrary to both the common definition and 

accepted legal meaning of “possession,” and simply cannot be accepted. It is true that under 

Michigan law, possession can be either actual or constructive. People v March, 499 Mich 389, 

415; 886 NW2d 396 (2016). Michigan Courts have consistently upheld that the basic 

requirements for constructive possession are knowledge, power or accessibility, and intent to 

exercise dominion or control. See, e.g., People v Minch, 493 Mich 87, 91-92; 825 NW2d 560 

(2012) (stating that a person has constructive possession when he “knowingly has the power and 

the intention at a given time to exercise dominion or control over a thing,” and when “the totality 

of the circumstances indicates a sufficient nexus between [the] defendant and the contraband”); 

Flick, 487 Mich at 14 (noting that although “[d]ominion and control over the object need not be 

exclusive,” the essential question “is whether the defendant had dominion or control”); People v 

Johnson, 293 Mich App 79, 83; 808 NW2d 815 (2011) (stating that constructive possession 

requires “proximity to the article together with indicia of control”). Most recently, in March, 

499 Mich at 415, our Supreme Court explained that “[a] person has constructive possession if he 

knowingly has the power and the intention at a given time to exercise dominion or control over a 

thing, either directly or through another person or persons[.]” (Quotations and citations omitted.) 

To support its disposal of the “control” element, the Board cites only the “sufficient 

nexus” test for constructive possession, often employed by our courts in cases involving 

possession of narcotics. Stated simply, the test permits a finding of constructive possession 

when “the totality of the circumstances indicates a sufficient nexus between the defendant and 

the contraband.” People v Wolfe, 440 Mich 508, 521; 489 NW2d 748, amended 441 Mich 1201 

(1992). This definition of constructive possession contains no explicit element of power or 

control. However, the phrase “sufficient nexus” contains an implicit element of control the 
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Board, quite simply, ignores. In adopting the sufficient nexus language from the Ninth Circuit, 

the Michigan Supreme Court provided the following explanation: 

“We have stated that constructive possession may be demonstrated by direct or 

circumstantial evidence that the defendant had the power to dispose of the drug, 

or ‘the ability to produce the drug . . . ,’ or that the defendant had the ‘exclusive 

control or dominion over property on which narcotics are found . . . ’

Constructive possession may also be proven by the defendant’s participation in a 

‘joint venture’ to possess a controlled substance. The ultimate question is 

whether, viewing the evidence in a light most favorable to the government, the 

evidence establishes a sufficient connection between the defendant and the 

contraband to support the inference that the defendant exercised a dominion and 

control over the substance.” [Wolfe, 440 Mich at 521-522, quoting United States 

v Disla, 805 F2d 1340, 1350 (CA 9, 1986) (emphasis added).] 

In other words, the “sufficient nexus” is a connection between an alleged possessor and 

the item he is alleged to possess sufficient to support the inference that the alleged possessor 

“exercised dominion and control” over the item. The sufficient nexus test, therefore, also 

contains an element of control. Regardless of whether possession is actual or constructive, 

neither the ordinary meaning of “possession” nor its legal counterpart encompasses knowing 

proximity alone. A person’s mere presence near contraband does not prove knowing possession 

or an ability to control it. See Wolfe, 440 Mich at 520 (reiterating the “well established”

principle “that a person’s presence, by itself, at a location where drugs are found is insufficient to 

prove constructive possession.”) We conclude that the Board’s argument for constructive 

possession is based on an inaccurate interpretation of that term, and the appropriate definition of 

“constructive possession” for purposes of petitioner’s parole conditions is the one articulated 

most recently by our Supreme Court in March, 99 Mich at 415, which explicitly incorporates the 

original element of intent to exercise dominion or control and provides that a person “has 

constructive possession if he knowingly has the power and the intention at a given time to 

exercise dominion or control over a thing[.]” 

The circuit court did not err when it concluded that the ALE’s finding of constructive 

possession was contrary to law. The ALE clearly relied on an improper formulation of 

constructive possession when it explicitly stated that it found the ownership of the firearms and 

ammunition and the fact that the guns were inaccessible to petitioner “immaterial.” The ALE 

justified this finding with an explanation that the parole condition did not distinguish between 

“loose” firearms and those secured by a locking mechanism and that, in any case, petitioner had 

access to the room in which the firearms were discovered. Regardless of whether the firearms 

were loose or locked, the parole conditions specifically employed the word “possess.” It simply 

cannot be said, based on this record, that the ALE’s conclusions support a finding of possession

of the firearms. Indeed, the ALE did not make any factual findings at all on the issue of 

petitioner’s knowing power or intention to exercise dominion or control at any given time over 

the firearms or ammunition. 

The ALE’s incorrect interpretation of constructive possession and failure to consider the 

requirements of constructive possession, on its own, is a mistake of law supporting the circuit 

court’s reversal. MCL 24.306(1)(f). We also note that, on this record, the facts and 
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circumstances presented at the revocation hearing do not support the inference that petitioner, by 

a preponderance of the evidence, “knowingly [had] the power and the intention at a given time to 

exercise dominion or control” over the firearms, the ammunition, or their cases. Knowing power 

and intention to exercise dominion and control over an item requires more than simply noticing 

an item, recognizing that it is prohibited, and leaving it alone. Flick, 487 Mich at 18-19. 

Evidence of knowing power and intention to exercise control might consist of, among other 

similar indicators, exclusive control over the premises where the prohibited item was found, an 

attempt to conceal or destroy the prohibited item, knowing transport of the item, or extended 

exposure to the item after determining that possession of the item is prohibited, Wolfe, 440 Mich 

at 521-523. Such evidence does not exist here. 

Although one of the firearms was discovered in an unlocked case, it was unloaded, 

locked with a slide mechanism requiring a key, and according to the agent who discovered the 

weapons, was “inoperable.” The other firearm was never seen by the parole agents during the 

spot check. The agents found a locked hard case next to the unlocked gun case, but could not 

open it without a key. They determined that the case contained a firearm through petitioner’s 

suggestion, as petitioner told them he had once seen a video of his brother, Walter Kelly, with an 

AR-15 on Facebook and thought that the hard case might contain that weapon. There was no 

evidence showing that petitioner had any reasonable means of accessing the weapons. Indeed, 

the agents admitted that they did not search the house for keys after finding that petitioner did 

not have any of the keys on his personal key ring. Walter testified at the parole revocation 

hearing that he had the only keys with him in New York. Petitioner immediately informed the 

agents that the items belonged to his brother. Indeed, there was no evidence to prove that 

petitioner had even seen one of the weapons, the AR-15, outside of a Facebook video. The ALE 

specifically found that there was no evidence to show that petitioner ever attempted, or even 

intended, to utilize any of the weapons or ammunition. Further, petitioner testified that he 

noticed the locked cases under Walter’s bed while he was looking for clothes, and simply left the 

cases there. Petitioner’s statements in this regard were not disputed. 

Undisputedly, the ALE did find evidence to show that petitioner had access to the 

bedroom in which the weapons and ammunition were found. Petitioner led the agents to the 

bedroom when they asked him to see “his room,” he had several items stored in the room, and 

while he later told the agents that the bedroom belonged to Walter, he admitted that he had 

access to the bedroom and slept there sometimes. The ALE incorrectly assumed that because 

petitioner had access to and ability to control the bedroom and its contents, he constructively 

possessed all of the contents of the bedroom. Again, to constructively possess an item, one must 

knowingly have the power and the intention at a given time to exercise dominion or control over 

a thing. The Board repeatedly insists that because the weapons and ammunition were found in 

“petitioner’s bedroom” he must have possessed them. But the ALE declined to specifically find 

that the bedroom containing the weapons, which petitioner’s mother insisted was Walter’s, 

belonged to petitioner, and, in any case, while the location of items in one’s personal living space 

is strong evidence of knowing intent to control those items, it is not dispositive. The ALE failed 

to make any findings of fact to support, by a preponderance of the evidence, the inference that 

petitioner intended to exercise dominion or control over the bedroom or any of its contents, 

including the weapons and ammunition. Petitioner’s violation of parole was not proven by a 

preponderance of the evidence, or even by competent, material, and substantial evidence. We 

remand to the Board for a new hearing on the matter. 
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III. 

Next, the Board argues that the circuit court erred when it concluded that the Board’s 

parole revocation was in violation of petitioner’s due process right to fair notice of prohibited 

conduct. We disagree. 

Whether petitioner was given adequate notice of prohibited conduct to satisfy his right to 

due process is an issue of constitutional law that this Court also reviews de novo. In re Parole of 

Hill, 298 Mich App 404, 410; 827 NW2d 407 (2012). 

On appeal to the circuit court, petitioner argued that the language of Conditions 07 and 08 

regarding prohibitions on possession failed to provide adequate notice that presence in a home 

where lawfully owned firearms were kept constituted a parole violation. Counsel for the Board 

emphasized language in the conditions prohibiting petitioner’s being in the company of anyone 

known to possess prohibited items and argued that it could not have been clearer that to possess 

or even be in the company of someone with firearms, lawfully owned or not, was against the 

terms of petitioner’s parole, an argument the Board repeats on appeal. In response, petitioner 

argued that parolees have a due process right to notice of prohibited conduct and that if the 

prohibition on “possession” required only proximity to support a violation, petitioner had a right 

to be informed of such. The circuit court agreed, concluding that the Board’s parole revocation 

decision was contrary to law because petitioner “was never properly made aware that mere 

presence in a home or [sic, of] a firearm lawfully owned by another subjected him to five years 

in prison.” 

There is no question that petitioner had a due process right to notice of prohibited

conduct. A prisoner has no due process interest in the potential for parole. Jones v Dep’t of 

Corrections, 468 Mich 646, 651; 664 NW2d 717 (2003) (“A prisoner enjoys no constitutional or 

inherent right to be conditionally released from a validly imposed sentence.”); see also Morales, 

260 Mich App at 48, and Greenholtz v Inmates of Nebraska Penal & Correctional Complex, 442 

US 1, 7; 99 S Ct 2100; 60 L Ed 2d 668 (1979). However, although “matters of parole lie solely 

within the broad discretion of the [Board],” Jones, 468 Mich at 652; see also Hopkins v Parole 

Bd, 237 Mich App 629, 637; 604 NW2d 686 (1999); MCL 791.234(11), that discretion is clearly 

restricted by legislative limitations, People v Idziak, 484 Mich 549, 584; 773 NW2d 616 (2009) 

(“An agency such as the [Michigan Department of Corrections] has no inherent authority, and 

the limitations of its power and authority must be measured by the statutory enactments from 

which it is created,” internal quotation marks omitted). For example, by statute, the Board “has 

the discretionary authority to grant or deny parole, MCL 791.233, . . . [and] if a parolee violates 

the terms of his parole, the Parole Board has the authority to revoke parole[,] MCL 791.240a.” 

Id. at 584-585. However, once parole is granted and the prisoner is released from prison on 

parolee status, that parolee gains a protected interest in continued liberty. In re Parole of 

Haeger, 294 Mich App 549, 574; 813 NW2d 313 (2011). “[L]imited due process requirements, 

including notice and the opportunity to be heard, apply to the loss of liberty occasioned by parole 

revocation.” Jones, 468 Mich at 652. 

Once a prisoner is released on parole, the Board retains discretion to revoke parole only 

for cause and in accordance with statutorily proscribed procedural guidelines. MCL 791.240a; 

Jones, 468 Mich at 652-653. In part, these proscribed procedural guidelines require proof that 

petitioner violated a condition of his parole by a preponderance of evidence. MCL 791.241a. 
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They also require that petitioner be given adequate notice of conduct that may be considered a 

violation of parole. Under Mich Admin Code, R 791.7730, a rule promulgated by the Board 

pursuant to its authority to set procedural guidelines for parole revocation under MCL 791.206: 

Each order of parole shall set the parole term and shall contain conditions of 

parole that are reasonably necessary to assist a parolee to lead a law-abiding life. 

There shall be a reasonable relationship between parole conditions and both the 

prisoner’s previous conduct and present capabilities. All conditions shall be 

sufficiently specific to guide both supervision and conduct. [Mich Admin Code, 

R 791.7730(1).] 

The language of the administrative rule closely tracks language used by our courts and 

the United States Supreme Court when considering challenges to the adequacy of enactments to 

provide notice of prohibited behavior. “It is a basic principle of due process that an enactment is 

void for vagueness if its prohibitions are not clearly defined.” Grayned v City of Rockford, 408 

US 104, 108-109; 92 S Ct 2294; 33 L Ed 2d 222 (1972). “ ‘In order to pass constitutional 

muster, a penal statute must define the criminal offense ‘with sufficient definiteness that ordinary 

people can understand what conduct is prohibited and in a manner that does not encourage 

arbitrary and discriminatory enforcement.’ ” People v Boomer, 250 Mich App 534, 538-539; 

655 NW2d 255 (2002), quoting People v Lino, 447 Mich 567, 575; 527 NW2d 434 (1994). 

Petitioner’s argument that the disputed parole condition failed to provide adequate notice 

under the Due Process Clause is an assertion that the parole condition is unconstitutionally 

vague. A constitutional challenge to an enactment based on its failure to provide adequate notice 

of prohibited conduct is brought under the Due Process Clause of the Fourteenth Amendment of 

the United States Constitution. Lino, 447 Mich at 575 n 2. “[T]here are three ways in which an 

enactment may be found unconstitutionally vague: (1) failure to provide fair notice of what 

conduct is prohibited, (2) encouragement of arbitrary and discriminatory enforcement, or (3) 

being overbroad and impinging on First Amendment freedoms.” People of City of Grand Rapids 

v Gasper, 314 Mich App 528, 537; 888 NW2d 116 (2016). “Vagueness challenges that do not 

implicate First Amendment freedoms are examined in light of the facts of each particular case.” 

Lino, 447 Mich at 575. 

The parole conditions at issue here are not unconstitutionally vague on their face. As the 

Board argues, they very clearly prohibit ownership or possession of both firearms and related 

implements, and presence in the company of anyone in possession of such items. The words, as 

used, are not ambiguous. Possession is a legal term with a commonly understood meaning. As 

the Board correctly argues, “it could not have been made any clearer to [petitioner] that to 

possess or even be in the company of someone with firearms, lawfully owned or not, was against 

the terms of his parole.” Employing the commonly understood definition of constructive 

possession, as outlined above, resolves any potential notice issues. 

In this case, the issue is whether the parole conditions are vague as applied to petitioner. 

The answer turns on the practical definition of constructive possession. The Board argues that 

constructive possession includes simple knowledge of and proximity to weapons. The Board 

then suggests that petitioner should have deduced, from the language of the conditions, that he 

was prohibited from simply being around prohibited items. 
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We find that if the parole conditions at issue were intended to dispense with the 

commonly understood legal definition of constructive possession and cover the conduct argued 

by the Board to constitute a parole violation, they are unconstitutionally vague. Again, 

constructive possession requires intent to exercise dominion or control over an item, and mere 

knowledge and proximity are not enough to show legal “possession.” If the petitioner’s conduct 

herebeing present in a home where firearms lawfully owned by another resident are storedis 

prohibited by the parole conditions, it simply cannot be said that the parole conditions were 

written “with sufficient definiteness that ordinary people can understand what conduct is 

prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” 

There is no language in either Condition 07 or Condition 08 “sufficiently specific to guide” a 

parolee’s conduct if the parolee is required to avoid any situation that would place him within 

knowing proximity to firearms or ammunition, or to guide agents in appropriate supervision. 

Counsel for the Board conceded in the lower court that the Board would simply have to exercise 

its discretion in each case to prevent the absurd situations which might result if the conditions 

were construed to prohibit mere knowing proximity to a firearm. The Board essentially admitted 

that the conditions, if construed without regard to plain or legal meaning of the word 

“possession,” were ripe for arbitrary enforcement. The ALE’s conclusion that petitioner violated 

his parole was therefore based on an interpretation of Conditions 07 and 08 that rendered them 

unconstitutionally vague and in violation of the Board’s own administrative rules. 

As previously discussed, “[t]he circuit court’s review of an administrative agency’s 

decision on a matter of law is limited to determining whether the decision was authorized by 

law.” City of Romulus, 260 Mich App at 64. Relevant here, MCL 24.306(1)(a) provides that a 

circuit court “shall hold unlawful and set aside a decision or order of an agency if substantial 

rights of the petitioner have been prejudiced because the decision or order is . . . [i]n violation of 

the constitution or a statute.” The circuit court therefore accurately applied the law when it 

reversed the Board’s revocation decision and remanded for further proceedings after finding that 

the language of Conditions 07 and 08 was unconstitutionally vague as applied to petitioner. 

IV. 

Next, the Board argues that the circuit court erred when it found that the ALE’s failure to 

consider the “momentary innocent possession defense” was an error of law requiring reversal. 

On this, we agree. 

“The circuit court’s review of an administrative agency’s decision on a matter of law is 

limited to determining whether the decision was authorized by law.” City of Romulus, 260 Mich 

App at 64. Under MCL 24.306(1)(f), a circuit court “shall hold unlawful and set aside a decision 

or order of an agency if substantial rights of the petitioner have been prejudiced because the 

decision or order is . . . [a]ffected by other substantial and material error of law.” 

Finding that the ALE made an error of law when it failed to consider the defense of 

momentary innocent possession, the circuit court concluded that the ALE’s decision regarding 

petitioner’s alleged parole violation was unauthorized. Although the circuit court applied the 

appropriate standard of review, the circuit court’s ultimate finding was based on its own 

erroneous conclusion that petitioner was entitled to a “momentary or innocent possession” 

defense. This Court adopted a limited a “momentary or brief possession of a weapon” defense to 

the general intent crime of carrying a concealed weapon (CCW), MCL 750.227, when the 
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momentary possession resulted from “disarming of a wrongful possessor” and “the possessor had 

the intention of delivering the weapon to the police at the earliest possible time,” in the 1986 case 

of People v Coffey, 153 Mich App 311, 315; 395 NW2d 250 (1986), overruled by People v 

Hernandez-Garcia, 477 Mich 1039, 1040; 728 NW2d 406 (2007). Coffey was explicitly 

overruled in Hernandez-Garcia, 477 Mich at 1040, in which our Supreme Court held that 

“momentary innocent possession of a concealed weapon is not a defense to a charge of [CCW.]” 

More recently, in holding that the momentary innocent possession defense was also an invalid 

affirmative defense to a charge of felon in possession of a firearm, MCL 750.224f, our Supreme 

Court cited Hernandez-Garcia and noted that the momentary innocent possession defense was 

“now defunct.” People v Dupree, 486 Mich 693, 711; 788 NW2d 399 (2010). 

Because Michigan law does not recognize the momentary innocent possession defense as 

a valid affirmative defense, the circuit court erred when it concluded that the ALE’s failure to 

consider the defense was a violation of the law. The circuit court therefore failed to apply the 

correct legal principles in this regard. Because the circuit court’s reversal of the parole 

revocation decision as unauthorized was proper for reasons already discussed, supra, the trial 

court’s error in this regard is harmless and reversal is not required. See MCR 2.613(A); see also 

NRDC, 300 Mich App at 89 (explaining that this Court will not overturn a circuit court’s order 

on appeal from an administrative agency decision on the basis of a harmless error. 

V. 

Next, appellant argues that the circuit court erred when it determined that the ALE’s 

refusal to allow petitioner’s presentation of witness testimony at the preliminary hearing violated 

petitioner’s right to due process and required reversal. We agree. 

Petitioner was immediately incarcerated after his arrest for alleged probation violations. 

A preliminary examination was held 11 days after his arrest. In his summary of the proceedings, 

the presiding ALE noted that petitioner’s mother and one of petitioner’s brothers, Roy 

Mackenzie, appeared to testify on petitioner’s behalf but “their testimony was not allowed.” At 

the circuit court hearing on appeal from petitioner’s ultimate parole revocation, the circuit court 

concluded that the examiner’s decision to prohibit testimony from petitioner’s witnesses was 

contrary to law. The circuit court found that the witnesses’ intended testimony was relevant, and 

that the examiner’s refusal to hear it deprived petitioner of his due process right to present 

relevant evidence. 

MCL 791.239a sets forth the procedural requirements for the Board to follow in cases of 

suspected parole violations. In pertinent part, MCL 791.239a provides: 

(1) Within 10 days after an arrest for an alleged violation of parole, the parolee 

shall be entitled to a preliminary hearing to determine whether there is probable 

cause to believe that the conditions of parole have been violated or a fact-finding 

hearing held pursuant to [MCL 791.240a]. 

(2) Prior to the preliminary hearing, the accused parolee shall be given written 

notice of the charges, time, place, and purpose of the preliminary hearing. 
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(3) At the preliminary hearing, the accused parolee is entitled to the following 

rights: 

(a) Disclosure of the evidence against him or her. 

(b) The right to testify and present relevant witnesses and documentary evidence. 

(c) The right to confront and cross-examine adverse witnesses unless the person 

conducting the preliminary hearing finds on the record that a witness may be 

subjected to risk of harm if his or her identity is revealed. [MCL 791.239a, 

citation footnote omitted.] 

Under the plain language of the statute, petitioner had a right to present relevant witnesses at the 

preliminary hearing, and the examiner deprived petitioner of this right. 

The circuit court applied the wrong legal principles to the extent it considered the 

examiner’s error an independent basis for reversal of the parole revocation decision. Reversal of 

an agency decision or order under the APA requires that the “substantial rights of the petitioner 

have been prejudiced” because of the agency’s unlawful action. MCL 24.306(1). Petitioner has 

not addressed this issue on appeal, and has not presented any evidence to support a finding that 

his substantial rights were affected by the examiner’s erroneous prohibition of witness testimony 

at the preliminary hearing. Nor is this Court able to find any evidence in the lower court record 

to support such a conclusion. Both of the witnesses that were denied the opportunity to testify at 

the preliminary hearing were permitted to testify at the full parole violation hearing. The circuit 

court therefore lacked the authority to reverse the Board’s parole revocation decision on this 

ground. 

As previously discussed, the circuit court’s reversal of the parole revocation decision as 

unauthorized by law was otherwise proper. Thus, the circuit court’s error in this regard is 

harmless and reversal is not required. See MCR 2.613(A); see also NRDC, 300 Mich App at 89. 

VI. 

Finally, the Board argues that the circuit court erred when it reversed the Board’s 

decision after determining that the Board’s imposition of a mandatory 60-month continuance in 

cases of firearm possession without consideration of mitigating circumstances constituted an 

abuse of discretion. We disagree. 

Under MCL 24.306(1)(a), a circuit court “shall hold unlawful and set aside a decision or 

order of an agency if substantial rights of the petitioner have been prejudiced because the 

decision or order is . . . [i]n violation of the constitution or a statute,” and under MCL 24.306(e), 

when the decision is “[a]rbitrary, capricious or clearly an abuse or unwarranted exercise of 

discretion.” At the circuit court hearing, petitioner argued that the Board’s application of an

automatic 60-month continuance, without considering mitigating circumstances, was a violation 

of petitioner’s right to due process. Neither this Court nor the Michigan Supreme Court has 

considered a challenge such as the one presented here. On appeal, the Board argues that the 

circuit court’s conclusion was erroneous because (1) the Board no longer applies a zero tolerance 
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policy in firearm possession cases, and (2) there is no evidence to show that the Board failed to 

consider mitigating circumstances in petitioner’s case. 

“There is scant published caselaw analyzing the multipart mechanics of Michigan’s 

current parole process.” In re Elias, 294 Mich App 507, 510; 811 NW2d 541 (2011). 

“Consequently, circuit courts lack useful precedent when called upon to review the propriety of a 

parole decision.” Id. at 510-511. A brief summary of the procedure is useful. “The Legislature 

created the Parole Board as part of the Michigan Department of Corrections (DOC).” Id. at 411, 

citing MCL 791.231a. Pursuant to a Legislative mandate, the DOC promulgated regulations 

outlining factors for the Board to consider before granting parole. Id. at 512-515; see Mich 

Admin Code, R 791.7715-7716. The Legislature, through MCL 791.233e(2) and (3) enumerated 

a list of both mandatory and permissive factors for the Board to consider when developing parole 

guidelines, id. at 512-515; see Mich Admin Code, R 791.7715-7716, and provided through MCL 

791.238 that “[e]ach prisoner on parole shall remain in the legal custody and under the control of 

the department.” When a parolee is suspected to be in violation of his parole, he 

is entitled to a preliminary probable cause hearing within ten days after arrest for 

parole violation, MCL 791.239a(1), and is entitled to a fact-finding hearing before 

a member of the Parole Board or a hearing officer within forty-five days of return 

to prison. MCL 791.240a(1). The parolee is entitled to be represented by counsel 

at the parole revocation hearing. MCL 791.240a(2). Additionally, the parolee is 

entitled to hear the evidence against the parolee, to testify and present evidence, 

and to cross-examine witnesses. Id. A parole violation must be established by a 

preponderance of the evidence. MCL 791.240a(5). 

After the hearing, the hearing officer prepares a report and recommendation for 

disposition by the Parole Board. MCL 791.240a(5). The board then enters an 

order either rescinding parole or reinstating it. MCL 791.41. A rescinding order 

also sets the length of time before the offender will again be eligible for parole. 

That period can range from one day to the maximum sentence imposed for the 

original offense, in the discretion of the board. MCL 791.238(2). [In re Wayne 

Co Prosecutor, 232 Mich App 482, 485-486; 591 NW2d 359 (1998) (citations 

altered).] 

The statutory structure makes clear that a parolee’s freedom is a limited freedom, 2 and with only 

limited exceptions, matters of parole lie within the broad discretion of the Board. Jones, 468 

Mich at 652. The Board’s discretion is not, however, unlimited. “[T]he Legislature has clearly 

imposed certain statutory restrictions on the Board’s exercise of its discretion.” In re Elias, 294 

Mich App at 521-522. By statute, once a prisoner is released on parole, the Board retains 

 2 See Morrissey v Brewer, 408 US 471; 92 S Ct 2593; 33 L Ed 2d 484 (1972), 408 US at 480: 

[T]he revocation of parole is not part of a criminal prosecution and thus the full 

panoply of rights due a defendant in such a proceeding does not apply to parole 

revocations . . . Revocation deprives an individual, not of the absolute liberty to 

which every citizen is entitled, but only of the conditional liberty properly 

dependent on observance of special parole restrictions. [Citation omitted.] 
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discretion to revoke parole only “for cause and in accordance with statutorily proscribed 

procedural guidelines.” Parole of Hill, 298 Mich App at 411, citing Jones, 468 Mich at 652-653

(emphasis added). These procedural guidelines guarantee defendant a right, at his revocation 

hearing, “[t]o present other relevant evidence in mitigation of the charges.” Our Supreme Court 

has acknowledged that the requirements, outlined in MCL 791.240a, “serve to protect the due 

process interests . . . of a parolee whose liberty is at stake by virtue of a charge of parole 

violation,” outlined by the United States Supreme Court in Id. Jones, 468 Mich at 652.

In Morrissey, 408 US at 479-480, 484-487, the Supreme Court delineated a two-step 

process for parole revocations, requiring first a preliminary hearing near the time of arrest to 

determine whether probable cause supports the inference that the parolee violated the conditions 

of his parole. Once probable cause has been found, the Court held that due process required a 

comprehensive revocation hearing, at which the Board would resolve disputed facts and decide 

“whether the facts as determined warrant revocation.” Morrissey, 408 US at 488. Importantly, 

the Morrissey Court explained that at this second hearing, “[t]he parolee must have an 

opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, 

that circumstances in mitigation suggest that the violation does not warrant revocation.” Id. 

Although not binding on this Court, the Sixth Circuit’s opinion in Preston v Piggman, 

496 F2d 270 (CA 6, 1974), provides an informative overview of Morrissey and associated 

United States Supreme Court decisions: 

Parole is no longer a state of administrative grace that may be summarily and 

arbitrarily ended at the whim of a parole board. Gagnon v Scarpelli, 411 US 778, 

782 n 4; 93 S Ct 1756; 36 L Ed 2d 656 (1973)[, superseded by statute on

unrelated grounds as stated in Baldwin v Benson, 584 F2d 953 (CA 10, 1978)]. 

Rather, a parolee has substantial liberty. Although such liberty is not the 

equivalent of that enjoyed by an ordinary citizen, it is greater than that enjoyed by 

one incarcerated for a crime. However this liberty may be restricted, it may not 

be terminated without the rudiments of procedural due process. Morrissey, 408 

US 471. What is at stake is not simply technical legal notions of what steps must 

be followed in a revocation hearing. Instead, there is involved “a profound 

attitude of fairness between man and man, and more particularly between the 

individual and government . . . ” Joint Anti-Fascist Refugee Committee v 

McGrath, 341 US 123, 162-163; 71 S Ct 624, 643; 95 L Ed 817 (1951) 

(FRANKFURTER, J., concurring). [Piggman, 496 F2d at 273 (citations altered).] 

Relying in part on a Seventh Circuit Court opinion holding that “[b]reach of parole conditions is 

a necessary but not sufficient ground for parole revocation, for the board is required to determine 

whether the violator is still a good parole risk, and he may bring extenuating circumstances to the 

board’s attention,” Caton v Smith, 486 F2d 733, 735 (CA 7, 1973), the Piggman Court concluded 

that “due process requires that a parolee who has admitted violating a condition of his parole is 

still entitled to present evidence in mitigation. In consequence, the Board must consider and 

evaluate the mitigating circumstances before it decides whether revocation is appropriate,” 

Piggman, 486 F2d at 274. 
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Piggman and Caton, while dated, are highly persuasive. They support the otherwise 

logical conclusion that if a parolee has a due process right to present mitigating evidence, the 

right necessarily includes the right to have the Board actually consider the mitigating evidence 

presented. This conclusion is also supported by the concept of fundamental fairness, which was 

clearly at the heart of the Morrissey Court’s decision: 

The parolee is not the only one who has a stake in his conditional liberty. Society 

has a stake in whatever may be the chance of restoring him to normal and useful 

life within the law. Society thus has an interest in not having parole revoked 

because of erroneous information or because of an erroneous evaluation of the 

need to revoke parole, given the breach of parole conditions. And society has a 

further interest in treating the parolee with basic fairness: fair treatment in parole 

revocations will enhance the chance of rehabilitation by avoiding reactions to 

arbitrariness. [Morrissey, 408 US at 484.] 

A strictly imposed 60-month continuance in cases involving revocation for firearms possession 

would completely dispense with the Board’s discretion in such cases. This limitation of 

discretion cannot be reconciled with the mandates of Morrissey and subsequent related decisions 

of the Supreme Court. Parolees have a due process right to have a Parole Board consider the 

evidence in mitigation. A complete prohibition on the Board’s ability to hear and actually 

consider such evidence constitutes a violation of due process. 

In its reply brief, the Board concedes the existence of a zero tolerance policy in cases of 

firearms-related parole violations, which mandates a five-year continuance regardless of the 

factual circumstances surrounding the violation. However, the Board insists that “based on 

information and belief, [the Board] hasn’t imposed the strict, zero tolerance, near-automatic 60-

month prison continuances for parolee firearms violations since Governor Granholm’s 

administration,” and the Board now has the discretion to consider anywhere from 24- to 60-

month prison continuances. Although the Board contends that the former “automatic” five-year 

policy is no longer in effect, there has been no factual support for that contention presented to 

this Court. Nor was it raised in the lower court. Indeed, substantial evidence in the lower court 

record supports the inference that the Board continues to apply its unwritten “zero tolerance” 

policy in cases of firearms-related parole violations, and that they applied it in petitioner’s case. 

Perhaps most important is the lack of any reasoning in support of the 60-month 

continuance for petitioner’s violation. Although the Board attached the ALE’s parole revocation 

hearing summary to their notice of revocation, they provided no explanation to support their 

decision, save for a boilerplate statement that “[the Board] lacks reasonable assurance that the 

prisoner will not become a menace to society or to the public safety and revocation of parole is 

warranted[.]” Although not necessarily required to do so,3 the Board failed to provide a specific 

explanation for the Board’s significant departure from the 36-month continuance recommended 

by the ALE, despite the fact that the Board’s continuance was within the permissible realm. The 

 3 The Board is only required to provide a general “written statement of the findings of fact and 

the reasons for the [revocation] determination within 60 days after the paroled prisoner has been 

returned or is available for return to a state correctional facility.” MCL 791.240a(6); Jones, 468 

Mich at 660 n 2. 
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departure seems especially arbitrary, because the ALE informed the Board that she was 

recommending the continuance only because it was a firearms-related offense, and stated that, 

“The ALE does not object to the Board to [sic] exercising its discretion regarding the length of a 

continuance given [petitioner’s] positive parole adjustment and the fact that he was forthcoming 

when questioned about the presence of weapons[.]” We find that the departure without 

explanation is evidence of a standard five-year continuance in cases involving firearms 

possession, and evidences the Board’s failure to contemplate the mitigating circumstances 

presented here. 

Further, while the Board now insists that the zero tolerance policy was eliminated after 

Governor Jennifer Granholm’s tenure, the Board’s counsel conceded the continued application of 

the policy at least twice at the circuit court hearing. Additionally, the MDOC refers to the zero 

tolerance policy in several of its own documents. Upon receiving notification of his charges, 

petitioner signed a notice of his rights which included the following language: “The Parole and 

Commutation Board will make a final determination on the violations which may range from reparole to a 24 month continuance. However, the Parole Board may issue a 60 month 

continuance in the event the violation of parole involves firearm [sic].” In an MDOC document 

titled “Parole Violation Worksheet and Decision,” both a parole agent and her supervisor 

recommended petitioner’s return for a revocation hearing after the preliminary examination “due 

to zero tolerance policy,” “because probable cause was found for weapons.” “It is often the case 

that an agency’s policies and practices will indicate the manner in which it is exercising its 

discretion.” Garner v Jones, 529 US 244, 256-57; 120 S Ct 1362; 146 L Ed 2d 236 (2000). 

“Absent a demonstration to the contrary, we presume the Board follows its statutory commands 

and internal policies in fulfilling its obligations.” Id. 

Equally telling is the Board’s unanimous refusal to reconsider the 60-month continuance 

after Administrator Daphne Johnson at the Office of Legal Affairs suggested that, based on the 

facts of petitioner’s violation, “the Parole Board may want to reconsider [petitioner] for parole 

prior to expiration of the 60[-]month continuance provided his brother removes all weapons from 

his mother’s residence and provided that [petitioner] receives adequate medical care in the 

community.” 

As the appellant, the Board “bore the burden of furnishing the reviewing court with a 

record to verify the factual basis for any argument upon which reversal was predicated.” People 

v Elston, 462 Mich 751, 762; 614 NW2d 595 (2000). An unsupported assertion in a reply brief 

is not enough to rebut the evidence in the lower court record or to prove that the circuit court was 

mistaken about the Board’s imposition of an “automatic” five year penalty. 

VII. 

The Board also argues that the circuit court erred when it determined that the Board 

imposed an arbitrary penalty and abused its discretion when it ordered a 60-month continuance 

in petitioner’s case, because there is no evidence to show that the Board failed to consider the 

mitigating circumstances presented to the ALE and attached to the Board’s notice of decision. 

“A ruling is arbitrary and capricious when it lacks an adequate determining principle, 

when it reflects an absence of consideration or adjustment with reference to principles, 

circumstances, or significance, or when it is freakish or whimsical.” Wescott v Civil Serv Comm, 
-17-

298 Mich App 158, 162; 825 NW2d 674 (2012). “An abuse of discretion occurs when the trial 

court’s decision is outside the range of reasonable and principled outcomes.” Kalaj v Kahn, 295 

Mich App 420, 425; 820 NW2d 223 (2012). “[F]ailure to exercise discretion when called on to 

do so constitutes an abdication and hence an abuse of discretion.” Loutts v Loutts, 298 Mich 

App 21, 24; 826 NW2d 152 (2012). 

There is no evidence to support the inference that the Board considered the mitigating 

circumstances presented here. Petitioner is partially paralyzed, partially blind, and has 

undergone significant brain reconstruction to address a gunshot wound to the head. He takes 

medication for ongoing seizures, and his memory is so poor that his mother has to lay out the 

medication for him and remind him to eat. This was petitioner’s first parole violation, and the 

ALE noted that his adjustment was “otherwise positive.” He had attended mental health 

appointments, taken his medication as prescribed, complied with his curfew, and passed his drug 

tests. He was innocently forthcoming regarding the presence of firearms in his home. Neither 

firearm was accessible to petitioner, as one was in a locked case and the other rendered 

“inoperable” by a slide lock. As the ALE noted, there is “nothing in evidence which suggests 

that [petitioner] ever utilized the weapons for any purpose.” Other than the agent’s belief that 

the room where the weapons were found was petitioner’s bedroom, there is no evidence at all of 

aggravating circumstances in this case. It is simply impossible, given the evidence in the record, 

to believe that the Board gave proper consideration to the factual circumstances presented. The 

circuit court correctly applied the law and found the Board’s decision both arbitrary and an abuse 

of discretion. 

Affirmed.

/s/ Karen M. Fort Hood 

/s/ Mark J. Cavanagh 

/s/ Amy Ronayne Krause