Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  November 10, 2011                                                              Robert P. Young, Jr.,
                                                                                           Chief Justice

  143855-6 & (26)                                                                Michael F. Cavanagh
                                                                                       Marilyn Kelly
                                                                                 Stephen J. Markman
                                                                                 Diane M. Hathaway
                                                                                     Mary Beth Kelly
                                                                                     Brian K. Zahra,
  TRACY NEAL, and All Others Similarly Situated,                                                Justices
           Plaintiffs-Appellees,
  v                                                     SC: 143855-6
                                                        COA: 305186
  DEPARTMENT OF CORRECTIONS, et al,                     Washtenaw CC: 96-006986-CZ
          Defendants-Appellees,
  and
  OAKLAND COUNTY REIMBURSEMENT UNIT,
             Intervenor-Appellant.
  ___________________________________________

  NICOLE ANDERSON, and All Others Similarly
  Situated,
            Plaintiffs-Appellees,
                                                        COA: 305195
  v                                                     Ct of Claims: 03-000162-MZ

  DEPARTMENT OF CORRECTIONS, et al,
          Defendants-Appellees,
  and

  OAKLAND COUNTY REIMBURSEMENT UNIT,
             Intervenor-Appellant.
  ___________________________________________/

        On order of the Court, the motion for immediate consideration is GRANTED.
  The application for leave to appeal the October 6, 2011 order of the Court of Appeals is
  considered, and it is DENIED, because we are not persuaded that the questions presented
  should be reviewed by this Court.

        MARKMAN, J. (dissenting).
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        I respectfully dissent. The Michigan Department of Corrections (MDOC) entered
into a class-action settlement agreement in 2009 to pay $100 million to plaintiffs – an
estimated 800 female prisoners alleging that they had been the victims of sexual
misconduct by state prison personnel. In connection with the settlement, the MDOC also
agreed that it would not publicly disclose the names of individual plaintiffs. As a result,
not only will the public be deprived of knowledge as to whom $100 million in state
revenues is to be disbursed, but the victims of plaintiffs’ crimes, who are owed
restitution, will be deprived of knowledge as to whether those who owe them such
restitution, will be sharing in this settlement. The Oakland County Reimbursement Unit
(OCRU), the agency charged with collecting court-ordered restitution on behalf of
victims from defendants sentenced in Oakland County, asks this Court to stay the
distribution of proceeds until issues it has raised concerning the settlement can be
resolved. I would grant the stay.

      MCL 791.220h provides:

              (1) If a prisoner is ordered to pay restitution to the victim of a crime
      and the department receives a copy of the restitution order from the court,
      the department shall deduct 50% of the funds received by the prisoner in a
      month over $50.00 for payment of restitution. The department shall
      promptly forward the restitution amount to the crime victim as provided in
      the order of restitution when the amount exceeds $100.00, or the entire
      amount if the prisoner is paroled, transferred to community programs, or is
      discharged on the maximum sentence. The department shall notify the
      prisoner in writing of all deductions and payments made under this section.
      The requirements of this subsection remain in effect until all of the
      restitution has been paid.

             (2) Any funds owed by the Michigan department of corrections or to
      be paid on behalf of one or more of its employees to satisfy a judgment or
      settlement to a person for a claim that arose while the person was
      incarcerated, shall be paid to satisfy any order(s) of restitution imposed on
      the claimant that the department has a record of. The payment shall be
      made as described in subsection (1). The obligation to pay the funds,
      described in this section, shall not be compromised. As used in this section,
      “fund” or “funds” means that portion of a settlement or judgment that
      remains to be paid to a claimant after statutory and contractual court costs,
      attorney fees, and expenses of litigation, subject to the court’s approval,
      have been deducted.

             (3) The department shall not enter into any agreement with a
      prisoner that modifies the requirements of subsection (1). Any agreement
      in violation of this subsection is void. [Emphasis added.]
                                                                                          3


MCL 600.5511 provides, in pertinent part:

              (2) Subject to section 220h of 1953 PA 232, MCL 791.220h, and the
       crime victim’s rights act, 1985 PA 87, MCL 780.751 to 780.834, any
       damages awarded to a prisoner in connection with a civil action brought
       against a prison or against an official, employee, or agent of a prison shall
       be paid directly to satisfy any outstanding restitution orders pending against
       the prisoner, including, but not limited to, restitution orders issued under
       the state correctional facility reimbursement act, 1935 PA 253, MCL
       800.401 to 800.406, the prisoner reimbursement to the county act, 1984 PA
       118, MCL 801.81 to 801.93, 1982 PA 14, MCL 801.301, and the crime
       victim’s rights act, 1985 PA 87, MCL 780.751 to 780.834, any outstanding
       costs and fees, and any other debt or assessment owed to the jurisdiction
       housing the prisoner. The remainder of the award after full payment of all
       pending restitution orders, costs, and fees shall be forwarded to the
       prisoner.

              (3) Before payment of any damages awarded to a prisoner in
       connection with a civil action described in subsection (2), the court
       awarding the damages shall make reasonable efforts to notify the victims of
       the crime for which the prisoner was convicted and incarcerated concerning
       the pending payment of damages. [Emphasis added.]

        The OCRU, in my judgment, raises compelling arguments that, pursuant to MCL
600.5511(2) and MCL 791.220h(2), all of the funds received by prisoners owing
restitution should first be disbursed to the victims owed restitution, and that, pursuant to
MCL 600.5511(3), the victims are entitled to notice before any funds are disbursed to
prisoners. However, the MDOC here is disbursing to the victims in each of six yearly
installments (presumably until full restitution has been made) only 50% of the settlement
funds paid to prisoners owing restitution, and the MDOC has refused to provide prior
notice to the victims or to the OCRU as to which prisoners owing restitution are
recipients of the settlement in this case.

        By refusing to stay the Plan of Allocation entered into between plaintiffs and the
MDOC, this Court fails to recognize that the Legislature, in seeking to ensure the fullest
possible restitution for the victims of crime, has also apparently determined that the
attainment of this objective is practically contingent upon compliance with particular
legal procedures established by the Legislature, in particular by legal requirements that
notice be provided to victims before prisoners receive the proceeds of civil settlements,
and that restitution be fully paid before prisoners receive any part of such proceeds. That
is, the procedures established in the law are designed to ensure that victims are fully
                                                                                           4

restituted, and a failure to comply with these procedures may well in some instances
undermine the ability of criminal victims to effectively secure the restitution that they are
owed.

        The majority’s refusal to stay the further distribution of settlement proceeds will,
in my judgment, almost certainly prejudice the ability of some unknown number of
victims to ever receive the full amount of restitution to which they are entitled. And as a
result, some larger portion of the settlement will be disbursed to persons who owe
restitution, and some smaller portion will be disbursed to persons who are owed
restitution, in contravention of what OCRU argues is required by the law.

        First, because the MDOC has agreed under the Plan that neither the public, nor the
OCRU, nor the individual victims of plaintiffs’ crimes are to be apprised beforehand as to
which prisoners have been awarded a share of the settlement, some victims will simply
be unaware of the changed financial circumstances of those who have perpetrated crimes
against them. These persons will be entirely dependent upon the MDOC for an accurate
accounting of who is owed restitution and in what amount. The OCRU – whose principal
mission it is to collect court-ordered restitution – will be unable to assist these victims
and to correct inevitable errors in MDOC’s records because it too is being denied access
to any list of prisoners receiving settlement funds. Any inaccuracies in MDOC’s records
will thus ensure that some victims will never be made aware that the restitution owed
them might have been practically obtainable as a result of the settlement. Moreover, the
OCRU argues that the procedures followed by the MDOC are contrary to MCL
600.5511(3), which is predicated upon the idea that the victim and the OCRU are entitled
to be informed before public funds are disbursed to prisoners from the state treasury, so
that all available efforts can first be undertaken to ensure that restitution in the proper
amount is paid to criminal victims from such funds.

        Second, persons owed restitution in excess of 50% of the total amount of
plaintiffs’ share of the settlement proceeds may well be prejudiced in their ability ever to
secure full restitution. For example, victim Smith is owed $10,000 in restitution from
prisoner Jones, and prisoner Jones is awarded $18,000 in a settlement, to be paid, as here,
in six annual installments of $3000 each. Under the MDOC’s 50% plan, Smith will be
paid 6 x $1500 or a total of $9000. Instead then of being fully restituted, as he could
have been from Jones’ award, Smith will still be owed $1000, and his only recourse will
be to undertake new legal actions to attempt to recover whatever may be left of Jones’
settlement – legal actions replete with attorney’s fees and directed toward a person who
would have had entirely no incentive, or perhaps no self-discipline, to have preserved
settlement proceeds for up to five or six years for the benefit of a victim whose
victimhood she had caused in the first place.
                                                                                                               5


        I would immediately stay any further disbursements to prisoners until the Court of
Appeals has finally determined: (a) whether notice to the victims is required by law to be
provided by the MDOC before any proceeds of a class-action settlement are disbursed to
prisoners; and (b) whether full, and not half, payments of restitution are required by law
to be disbursed to victims of plaintiffs’ crimes before any disbursements are made to
plaintiffs.

      YOUNG, C.J., joins the statement of MARKMAN, J.

       HATHAWAY, J. I am recusing myself from participating because a member of my
family is counsel for one of the parties in this matter. See MCR 2.003(C)(1)(g)(ii).

       MARY BETH KELLY, J. I am recusing myself from this case based on a personal
relationship with one of the plaintiffs which, in my judgment, gives rise to an appearance
of impropriety. MCR 2.003(C)(1)(b).




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         November 10, 2011                   _________________________________________
       h1108                                                                 Clerk
