Michigan Advisory Opinions October 16, 1979: AGO 5583 (October 16, 1979)

Michigan Attorney General Opinions

1979.

AGO 5583.

You have requested my response to several questions dealing with 1978 Initiated Law that appeared on the ballot of the general election of 1978 as Proposal B. This act, as amended, prohibits granting a parole to a prisoner convicted of any one of certain specified crimes prior to service of the minimum sentence imposed by the court. Your questions are:

1. When did this law take effect?

2. Does this law apply to a prisoner sentenced before the law took effect?

3. Does this law apply to a prisoner sentenced after its effective date where the crime was committed before the law became effective?

4. Does this law apply to a person originally sentenced under the Holmes Youthful Trainee Act, or who was put on probation, prior to its effective date and then, subsequent to the effective date, is sentenced to a prison term due to a violation of the term of his/her probation?

5. The wording of Proposal B, as it appeared on the ballot, stated that it affects 'certain crimes involving violence or injury to person or property.' However, the list of crimes in section 33B of the Act included crimes which do not involve violence or injury to person or property. Should this law be applied to all of the crimes listed or only those which are violent or involve injury to persons or property?

6. The list of crimes in the Act includes the attempt statute. Should the law be applied to an attempt to commit a crime if the crime itself is not listed in the Act?

7. What effect, if any, does this law have on the 'Lifer' law, MCLA 791.234, which allows parole after ten years for a prisoner sentenced to life imprisonment?

8. When an individual is given a lengthy sentence, the maximum sentence less special good time may expire before the minimum sentence without good time. In such a case, may the prisoner be credited with good time off the maximum sentence?

9. Would a prisoner given a sentence for a flat term for one of the crimes listed in Proposal B be able to earn good time and special good time?

1953 PA 232, Sec. 33(1)(b), MCLA 791.233; MSA 28.2303, as amended by 1978 Initiated Law, provides:

'A parole shall not be granted to a prisoner until the prisoner has served the minimum term imposed by the court less allowances for good time or special good time to which the prisoner may be entitled to by statute, except that prisoners shall be eligible for parole prior to the expiration of their minimum terms of imprisonment whenever the sentencing judge or the judge's successor in office gives written approval of the parole of the prisoner prior to the expiration of the minimum terms of imprisonment.

1953 PA 232, supra, Sec. 33(1)(c), as added by 1978 Initiated Law, further provides:

'Notwithstanding the provisions of subsection (b), a parole shall not be granted to a prisoner sentenced for the commission of a crime described in section 33b until the prisoner has served the minimum term imposed by the court, which minimum term shall not be diminished by allowances for good time, special good time, or special parole.'

The questions will now be answered in the order presented.

1. When did the law take effect?

This question is answered by Const 1963, art 2, Sec. 91, which provides:

'Any law submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon at any election shall take effect ten days after the date of the official declaration of the vote. . . .'

In the case of Proposal B, the State Board of Canvassers certified the approval on November 30, 1978. Accordingly, the law took effect on December 10, 1978 at 12:01 a.m.

2. Does this law apply to a prisoner sentenced before the law took effect?

3. Does this law apply to a prisoner sentenced after its effective date where the crime was committed before the law became effective?

4. Does this law apply to a person originally sentenced under the Holmes Youthful Trainee Act, or who was put on probation, prior to its effective date and then, subsequent to the effective date, is sentenced to a prison term due to a violation of the term of his/her probation?

Your second, third and fourth questions were answered by the Supreme Court's Order in State Appellate Defender, et al v Director of Elections, State Board of Canvassers, et al, 405 Mich 815; ---- NW 2d ---- (1979), which states:

'[W]e hold the initiative law amending MCL 791.233; MSA 28.2303, . . . applies exclusively to persons who have committed the certain enumerated offenses on or after its effective date.'

It is therefore clear that 1978 Initiated Law has no effect on individuals who committed the enumerated offenses prior to December 10, 1978.

5. The wording of Proposal B, as it appeared on the ballot, stated that it affects 'certain crimes involving violence or injury to person or property.' However, the list of crimes in section 33B of the Act included crimes which do not involve violence or injury to person or property. Should this law be applied to all of the crimes listed or only those which are violent or involve injury to persons or property?

Laws enacted by initiative are controlled by the terms of Const 1963, art 2, Sec. 9. This section mandates the Legislature to implement the provisions of the Constitution and legislative implementation was accomplished by enactment of 1954 PA 116, Sec. 474; MCLA 168.474; MSA 6.1474, which provides that it shall be the duty of the state director of elections to prepare a true and impartial 'statement of the purpose' of any proposed question to be submitted to the electors. This statement must consist of no more than 100 words.

Section 484 of the Election Law, supra, provides:

'Any questions submitted to the electors of this state or the electors of any subdivision of this state shall, to the extent that it will not confuse the electorate, be worded in the following manner: a 'yes' vote will be a vote in favor of the subject matter of the proposal or issue, and a 'no' vote will be a vote against the subject matter of the proposal or issue. Questions shall be worded so as to apprise the voters of the subject matter of the proposal or issue, but need not be legally precise. The language used shall create no prejudice for or against the issue or proposal.' [Emphasis added]

By these provisions, the Legislature sought to identify the proposition appearing on the ballot. 1954 PA 116, supra, Sec. 480, contains an additional requirement that the exact text of the proposal be posted conspicuously along with the ballot language in the voting rooms.

Inasmuch as the descriptive ballot language used with respect to Proposal B provided a fair description of the impact of the proposal, it is my opinion that the 1978 Initiated Law was validly adopted and is applicable to all of the offenses enumerated. It may be further noted that this issue was briefed and presented to the Michigan Supreme Court in a motion for rehearing of State Appellate Defender v Director of Elections, supra, and the court rejected argument that the ballot proposal was improperly presented.

6. The list of crimes in the Act includes the attempt statute. Should the law be applied to an attempt to commit a crime if the crime itself is not listed in the Act?

1931 PA 328, Sec. 92; MCLA 750.92; MSA 28.287, one of the crimes specified in the Act, provides in pertinent part:

'Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows: . . .' [Emphasis added]

The Supreme Court has held that this statute is declaratory of the common law rule as to what conduct constitutes an attempt to commit an offense. People v Webb, 127 Mich 29; 86 NW 406 (1901); People v Youngs, 122 Mich 292; 81 NW 114 (1898).

At common law, an attempt to commit a felony was a misdemeanor. Elliott v VanBuren, 33 Mich 49; 20 AR 668 (1875). The purpose of this section, therefore, was to impose greater punishment for certain attempts than that provided at common law.

It is, therefore, my opinion that an attempt to commit a crime which is not included in the list of offenses enumerated in 1953 PA 232, Sec. 33B as added by 1978 Initiated Law; MCLA 791.233B; MSA 28.2303(2), does not fall within its scope.

7. What effect, if any, does this law have on the 'Lifer' law, MCLA 791.234, which allows parole after ten years for a prisoner sentenced to life imprisonment?

1953 PA 232, Sec. 34; MCLA 791.234; MSA 28.2304, provides in pertinent part:

'Any convict who now is, or hereafter may be imprisoned in any one of the prisons or reformatories of this state under sentence for life or for any term of years, other than those so sentenced for life for murder in the first degree, and who shall have served 10 calendar years of such sentence, shall be subject to the authority and jurisdiction of the parole board and may be released on parole in the discretion of the parole board. . . .'

Thus, 1953 PA 232, Sec. 34, supra, in certain cases established parole board jurisdiction earlier than was provided for in 1953 PA 232, Sec. 33 in effect prior its amendment by 1978 Initiated Law, the only other source of parole board jurisdiction.

As amended by 1978 Initiated Law, 1953 PA 232, Sec. 33(1)(c), supra, states in pertinent part:

'. . . [A] parole shall not be granted to a prisoner sentenced for the commission of a crime described in section 33B until the prisoner has served the minimum term imposed by the court, which term shall not be diminished by allowances for good time, special good time, or special parole.'

As added by 1978 Initiated Law, 1953 PA 253, Sec. 33B, supra, states:

'A person convicted and sentenced for the commission of any of the following crimes shall not be eligible for parole until the person has served the minimum term imposed by the court which minimum term shall not be diminished by allowances for good time, special good time, or special parole.' [Emphasis added]

In construing statutory provisions, each must be given effect and reconciled with other whenever possible. People v Johnson, 270 Mich 622; 259 NW 373 (1935). There is a presumption against repeals by implication and, if possible, earlier and later statutes must be construed together and, if possible, each given effect. Covert Township Assessor v State Tax Commission, 53 Mich App 300, 304; 218 NW2d 807 (1974); Lansing School District v School District No 3, 327 Mich 436, 440; 42 NW2d 132 (1950). 1978 Initiated Law is amendatory legislation. Its subject matter modifies 1953 PA 232, Sec. 34, supra, by eliminating the possibility for special parole authorized therein for inmates who have received sentences which have a minimum term in excess of ten years. In such cases, the amendatory 1978 Initiated Law operates to deny parole consideration until after the minimum sentence imposed has been served.

In the case of a sentence for life imprisonment, a minimum term of years is therefore precluded by 1927 PA 175, ch IX, Sec. 9 as amended by 1957 PA 193; MCLA 769.9; MSA 28.1081, which provides in pertinent part:

'. . . In no case can a valid sentence be hereafter made in which the maximum penalty shall be life imprisonment with a minimum for a term of years included in the same sentence.'

In such cases, the minimum term imposed by the court is, in effect, life imprisonment. Thus, 1978 Initiated Law precludes parole consideration for a prisoner with a life sentence.

8. When an individual is given a lengthy sentence, the maximum sentence less special good time may expire before the minimum sentence without good time. (fn1) In such a case, may the prisoner be credited with good time off the maximum sentence?

1978 Initiated Law does not terminate a prisoner's entitlement to good time and special good time, but rather prohibits good time credit for parole eligibility until the minimum sentence is served. However, when earned by good behavior, good time reduces the maximum sentence and a parole is not granted. A prisoner must be discharged when the sentence is served. Therefore, since discharge is required at the time that the prisoner has completed serving his or her sentence, the prisoner must be discharged even though he or she has served less than the minimum sentence.

9. Would a prisoner given a sentence for a flat term for one of the crimes listed in Proposal B be able to earn good time and special good time?

Because of 1927 PA 175, ch IX, Secs. 8 and 9; MCLA 769.8 and 769.9; MSA 28.1080 and 28.1081, as construed by the court in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972), the possibility for imposition of a prison sentence without minimum and maximum exists in the case of a second or subsequent felony charge brought under one of the habitual offender provisions.

Therefore, because 1978 Initiated Law does not permit the use of good time to reduce the minimum sentence, where a sentence for a fixed term of years is imposed upon an habitual offender, the offender must serve the full number of years imposed by the court.

Frank J. Kelley

Attorney General

1. As an actual example, a prisoner sentenced to serve a 20-40 year sentence will have completed the 40 year maximum less time off for good behavior in 15 years, 10 months and 15 days. I have been informed that in the one year's commitment for 1977 more than 150 prisoners were in a situation in which the maximum less good time is less than the calendar minimum.