Rule 7.118 Appeals from the Michigan Parole Board

(A)   Scope. This rule governs appeals to the circuit court from the Michigan Parole Board. Unless this rule provides otherwise, MCR 7.101 through 7.115 apply.

(B)   No Appeal of Right. There is no appeal of right from a decision of the parole board.

(C)   Access to Reports and Guidelines. Upon request, the prosecutor, the victim, and the prisoner shall receive the parole eligibility report, any prior parole eligibility reports that are mentioned in the parole board’s decision, and any parole guidelines that support the action taken.

(D)   Application for Leave to Appeal.

(1)   Parties.

(a)   Only the prosecutor or a victim may file an application for leave to appeal.

(b)   The prisoner shall be the appellee.

(c)   The parole board may move to intervene as an appellee.   

(2)   Time Requirements. An application for leave to appeal must be filed within 28 days after the parole board mails a notice of action granting parole and a copy of any written opinion to the prosecutor and the victim, if the victim requested notification under MCL 780.771.

(3)   Manner of Filing. An application for leave must comply with MCR 7.105, must include statements of jurisdiction and venue, and must be served on the parole board and the prisoner. If the victim seeks leave, the prosecutor must be served. If the prosecutor seeks leave, the victim must be served if the victim requested notification under MCL 780.771.

(a)   Service on the parole board, the victim, or the prosecutor must be accomplished by certified mail, return receipt requested, in compliance with MCR 2.105(A)(2).

(b)   Service on a prisoner incarcerated in a state correctional facility must be accomplished by serving the application for leave on the warden or administrator, along with the form approved by the State Court Administrative Office for personal service on a prisoner. Otherwise, service must be accomplished by certified mail, return receipt requested, as described in MCR 2.103(C) and MCR 2.104(A)(2) or in compliance with MCR 2.105(A)(2). In addition to the pleadings, service on the prisoner must also include a notice in a form approved by the State Court Administrative Office advising the prisoner that:

(i)   the prisoner may respond to the application for leave to appeal through retained counsel or in propria persona, although no response is required, and

(ii)   if an order of parole is issued under MCL 791.236 before the completion of appellate proceedings, a stay may be granted in the manner provided by MCR 7.108, except that no bond is required.

(c)   Proof of service must be promptly filed with the clerk of the circuit court and must include a copy of the return receipt and, in the case of the prisoner, a copy of the certificate of service executed by the appropriate prison official.

(4)   Venue. An application for leave to appeal a decision of the parole board may only be filed in the circuit court of the sentencing county under MCL 791.234(11).

(E)   Late Application. A late application for leave to appeal may be filed under MCR 7.105(F).

(F)   Stay of Order of Parole.

(1)   An order of parole issued under MCL 791.236 shall not be executed until 28 days after the mailing of the notice of action.

(2)   If an order is issued under MCL 791.235 before completion of appellate proceedings, a stay may be granted in the manner provided by MCR 7.108, except that no bond is required.

(G)   Decision to Grant Leave to Appeal.

(1)   The circuit court shall make its determination within 28 days after the application for leave to appeal is filed.

(2)   If the court does not make its determination within 28 days, the court shall enter an order to produce the prisoner before the court for a show cause hearing to determine whether the prisoner shall be released on parole pending disposition of the appeal.

(H)   Procedure After Leave to Appeal Granted. If leave to appeal is granted, MCR 7.105(D)(4) applies along with the following:

(1)   Record on Appeal.

(a)   The record on appeal shall consist of the prisoner’s central office file at the Department of Corrections and any other documents considered by the parole board in reaching its decision.

(b)   Within 14 days after being served with an order granting leave to appeal, the parole board shall send copies of the record to the circuit court and the other parties. In all other respects, the record on appeal shall be processed in compliance with MCR 7.109.

(c)   The expense of preparing and serving the record on appeal may be taxed as costs to a nonprevailing appellant, except that expenses may not be taxed to an indigent party.

(2)   Briefs. Briefs must comply with MCR 7.111, except:

(a)   the appellant’s brief is due 28 days after the record is served on the parties, and

(b)   the appellee’s brief, if filed, is due 21 days after the appellant’s brief is served on the appellee.

(3)   Burden of Proof. The appellant has the burden of establishing that the decision of the parole board was

(a)   in violation of the Michigan Constitution, a statute, an administrative rule, or a written agency regulation that is exempted from promulgation pursuant to MCL 24.207, or

(b)   a clear abuse of discretion.

(4)   Remand to the Parole Board. On motion by a party or on the court’s own motion, the court may remand the matter to the parole board for an explanation of its decision.

(a)   The parole board shall hear and decide the matter within 28 days of the date of the order, unless the board determines that an adjournment is necessary to obtain evidence or there is other good cause for an adjournment.

(b)   The time for filing briefs on appeal under subrule (H)(2) is tolled while the matter is pending on remand.

(I)   Subsequent Appeal to the Court of Appeals. An appeal of a circuit court decision is by emergency application for leave to appeal to the Court of Appeals under MCR 7.205(F), and the Court of Appeals shall expedite the matter.

(J)   Parole Board Responsibility After Reversal or Remand.

(1)   If a decision of the parole board is reversed or remanded, the board shall review the matter and take action consistent with the circuit court’s decision within 28 days.

(2)   If the circuit court order requires the board to undertake further review of the file or to reevaluate its prior decision, the board shall provide the parties with an opportunity to be heard.

(3)   An appeal to the Court of Appeals does not affect the board’s jurisdiction to act under this subsection.