Kirkeby v. Corrections Dep't

Full title: KIRKEBY v DEPARTMENT OF CORRECTIONS

Court: Michigan Court of Appeals

Date published: Jan 31, 1985

366 N.W.2d 28 (Mich. Ct. App. 1985)

366 N.W.2d 28

Opinion

Docket No. 76736.

Decided January 31, 1985. Leave to appeal granted, 422 Mich ___.

Arthur Kirkeby, in propria persona. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Edgar L. Church, Jr., Assistant Attorney General, for respondent.

Before: CYNAR, P.J., and M.J. KELLY and R.L. EVANS,^_ JJ.

_ Recorder's Court judge, sitting on the Court of Appeals by assignment.

PER CURIAM.

Petitioner appeals as of right from an order by the circuit court which affirmed a Department of Corrections hearing officer's finding of a major misconduct violation.

Petitioner is an inmate at the State Prison of Southern Michigan. On September 27, 1983, he was issued a major misconduct violation after a container of dried bleach was found in his cell. Petitioner brought a petition for judicial review of the final administrative decision in accordance with MCL 24.301 et seq.; MSA 3.560(201) et seq. The circuit court dismissed his petition based in part on lack of jurisdiction.

Petitioner's position is that the directive under which he was charged with misconduct was not promulgated in conformity with the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. We disagree. Not all prison disciplinary directives are subject to the rule-making provisions of the APA. Excluded from the APA are:

"An intergovernmental, interagency or intra-agency memorandum, directive or communication which does not affect the rights of, or procedures and practices available to, the public." MCL 24.207(g); MSA 3.560(107)(g).

In Schinzel v Dep't of Corrections, 124 Mich. App. 217; 333 N.W.2d 519 (1983), this Court noted that, where a policy directive affected the rights of the public, the policy directive in question was required to comply with the APA. Petitioner's case is different than Schinzel. The prison directive in question affects only persons under the jurisdiction of the Department of Corrections. It does not affect members of the general public as the directive at issue in Schinzel did. Because the directive in question does not affect the rights of the public as suggested by the tenor of MCL 24.207(g); MSA 3.560(107)(g), the directive is not subject to the APA. Intra-agency directives need not strictly comply with the rule-making procedures of the APA. The circuit court ruling is affirmed.

Affirmed.