            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



GARY JACKSON,                                                      FOR PUBLICATION
                                                                   August 13, 2019
               Plaintiff-Appellant,                                9:05 a.m.

v                                                                  No. 342882
                                                                   Ingham Circuit Court
DIRECTOR OF DEPARTMENT OF                                          LC No. 17-000853-AA
CORRECTIONS,

               Defendant-Appellee.


Before: M. J. KELLY, P.J., and BOONSTRA and RIORDAN, JJ.

BOONSTRA, J.

       Plaintiff appeals by delayed leave granted1 the trial court’s order dismissing for lack of
subject-matter jurisdiction his appeal of a Michigan Department of Corrections (MDOC)
misconduct ruling. We reverse and remand for further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Plaintiff is an inmate confined at Ojibway Correctional Facility. In 2017, MDOC
employees concluded that plaintiff had received an unauthorized transfer of funds to his prisoner
account by another prisoner, in violation of MDOC policy. Plaintiff was charged with Class II
misconduct. After an informal hearing at which plaintiff pleaded not guilty, an MDOC hearing
officer found plaintiff guilty of Class II misconduct and sanctioned plaintiff with a loss of
privileges for 15 days and the confiscation of $250 from his prisoner account.2 Plaintiff appealed
the ruling to the deputy warden, arguing in part that plaintiff’s right to procedural due process
had been violated and that the violation resulted in his loss of property. The deputy warden


1
 Jackson v Dep’t of Corrections, unpublished order of the Court of Appeals, entered August 22,
2018 (Docket No. 342882).
2
  MDOC represents that, in accordance with Mich Admin Code, R 791.6639, the funds were
confiscated and placed in a prisoner benefit fund.



                                               -1-
denied his appeal. Plaintiff then appealed to the trial court, again asserting that his constitutional
right to due process had been violated and that the violation had unconstitutionally deprived him
of property. The trial court dismissed plaintiff’s appeal for lack of subject-matter jurisdiction,
stating that only Class I misconduct findings were subject to judicial review, citing an
unpublished opinion of this Court. The trial court denied plaintiff’s motion for reconsideration.

       This appeal followed.

                                  II. STANDARD OF REVIEW

        We review de novo as a question of law whether a trial court has subject-matter
jurisdiction over a claim. Harris v Vernier, 242 Mich App 306, 309; 617 NW2d 764 (2000).

                                          III. ANALYSIS

        Plaintiff’s argues that the trial court erred by concluding that it lacked subject-matter
jurisdiction over his appeal. We agree.

       “Subject-matter jurisdiction refers to a court’s power to act and authority to hear and
determine a case.” Forest Hills Co-operative v Ann Arbor, 305 Mich App 572, 617; 854 NW2d
172 (2014). Michigan’s circuit courts are courts of general jurisdiction. Okrie v Michigan, 306
Mich App 445, 467; 857 NW2d 254 (2014).

         The trial court held that it lacked subject-matter jurisdiction because Class II prisoner
misconduct rulings are not subject to judicial review. Citing an unpublished decision of this
Court, the trial court reasoned that plaintiff’s loss of privileges for 15 days did not amount to the
loss of good time or disciplinary credits, which are judicially reviewable. The trial court did not
consider, however, plaintiff’s claimed loss of property or whether the circumstances of this case
gave rise to a constitutional right of judicial review; nor did the unpublished decision on which
the trial court relied have occasion to address those issues.3

       The Michigan Constitution provides for judicial review of administrative decisions:

               All final decisions, findings, rulings and orders of any administrative
       officer or agency existing under the constitution or by law, which are judicial or
       quasi-judicial and affect private rights or licenses, shall be subject to direct review
       by the courts as provided by law. 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.]



3
  The unpublished decision cited by the trial court related to a loss of privileges; it did not
involve a confiscation of property.


                                                 -2-
As this Court explained in Martin v Stine, 214 Mich App 403, 407-408; 542 NW2d 884 (1995),
three statutes effectuate this right to judicial review as it relates to a prisoner misconduct appeal:
(1) MCL 791.255, which relates specifically to judicial review of MDOC hearing officer
decisions, (2) MCL 24.301 of the Administrative Procedures Act of 1969 (APA), MCL 24.201 et
seq., and (3) MCL 600.631 of the Revised Judicature Act of 1961 (RJA), MCL 600.101 et seq.,
which states:

       An appeal shall lie from any order, decision, or opinion of any state board,
       commission, or agency, authorized under the laws of this state to promulgate rules
       from which an appeal or other judicial review has not otherwise been provided for
       by law, to the circuit court of the county of which the appellant is a resident or to
       the circuit court of Ingham county, which court shall have and exercise
       jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made
       in accordance with the rules of the supreme court.

In Martin, this Court held that a prisoner was not entitled to judicial review of a minor
misconduct sanction under MCL 791.255 because “minor misconduct charges that would not
result in a loss of good time or disciplinary credits, or placement in punitive segregation, are
specifically excluded from those matters in which a prisoner is entitled to a hearing . . . .”
Martin, 214 Mich App at 408-409. Moreover, he was not entitled to judicial review of the minor
misconduct sanction under the APA because the prisoner did not have a right to a formal
evidentiary hearing with respect to his minor misconduct charge and there was therefore not a
“contested case.” Further, in the circumstances of that case, he was not entitled to judicial
review under the RJA because the Legislature was entitled to “preclude judicial review where
constitutional rights are not implicated,” Martin, 214 Mich App at 411, and because it had in fact
done so.

        The Court in Martin stressed, however, that “[i]n rendering this decision, we are mindful
of the constitutional right to the review of agency decisions under Const 1963, Art 6, § 28,” id. at
414. But it concluded under the circumstances of that case that the constitutional right was
inapplicable because the plaintiff’s “minor misconduct charge did not ‘affect private rights or
licenses.’ ” Id.

        The MDOC in Martin had confiscated merchandise from the plaintiff’s cell that he had
purchased and possessed in violation of MDOC policy. But unlike in this case, the confiscated
property had been mailed to the plaintiff’s home, not permanently taken from him. Under those
circumstances, the Martin Court concluded that the confiscation of property that was mailed to
the prisoner’s home did not trigger the constitutional jurisdictional provision, Const 1963, art 6,
§ 28. Id. at 414-415.

         The Due Process Clause applies to prisoners, and “[t]hey may not be deprived of life,
liberty, or property without due process of law.” Wolff v McDonnell, 418 US 539, 556; 94 S Ct
2963; 41 L Ed 2d 935 (1974). This right, however, is “subject to restrictions imposed by the
nature of the regime to which they have been lawfully committed.” Id. The protected interest at
stake must be rooted in state law. Meachum v Fano, 427 US 215, 226; 96 S Ct 2532; 49 L Ed 2d
451 (1976), reh den 429 US 873; 97 S Ct 191; 50 L Ed 2d 155 (1976).


                                                 -3-
        Martin did not address whether the permanent confiscation of funds in a prisoner account
implicated a property right. However, in Wojnicz v Dep’t of Corrections, 32 Mich App 121, 123,
125; 188 NW2d 251 (1971),4 this Court did recognize a prisoner’s right to funds in his prisoner
account, holding that the confiscation of funds from that account without notice and hearing
deprived the prisoner of due process of law. Since Wojnicz, this Court and the Legislature have
recognized that a prisoner has a protected right to funds in his prisoner account in the context of
state claims for reimbursement. See, e.g., State Treasurer v Snyder, 294 Mich App 641, 643-
644, 650; 823 NW2d 284 (2011); see also the State Correctional Facility Reimbursement Act,
MCL 800.401 et seq. (requiring the state to give an inmate notice and the opportunity to respond
to the state’s complaint for reimbursement). The Michigan Administrative Code also provides
support for the idea that a prisoner has a property interest in the funds in his account. See Mich
Admin Code, R 771.6639.

        We conclude that plaintiff possessed a right to the funds in his account in such a nature as
would afford to the trial court subject-matter jurisdiction to review administrative decisions
affecting the loss of that right. See Const 1963, Art 6, § 28. Although plaintiff was not found
guilty of Class I misconduct, the sanctions nonetheless resulted in the permanent deprivation of
property; unlike the prisoner in Martin, his property was not merely removed from his cell and
returned to his home; nor was he subject to the mere loss or suspension of privileges that we
have found to be unreviewable. Our decision in Martin resulted not merely from the label given
to the misconduct charge, but was informed by the generally transitory nature of the sanctions for
minor misconducts and the absence in that case of any deprivation of constitutional rights.
Martin, 214 Mich App at 411, 414 (noting that judicial review of an administrative decision may
be precluded “where constitutional rights are not implicated” and concluding that the minor
misconduct charge at issue “did not affect private rights or licenses”), citing Const 1963, Art 6,
§ 28.5 Consequently, we conclude that the trial court erred by applying the major-minor conduct
distinction too formulaically and without consideration of the constitutional issues presented.

        For these reasons, we reverse the trial court’s order dismissing plaintiff’s appeal and
remand for further proceedings. We express no opinion regarding the ultimate success or failure
of plaintiff’s appeal before the trial court, but only conclude that the trial court possessed subject-
matter jurisdiction over the appeal.




4
 Opinions from this Court issued before November 1, 1990 are not binding upon this Court, but
may be persuasive. See MCR 7.215(J)(1).
5
  We note that plaintiff does not argue specifically that he was denied due process in connection
with his loss of privileges for 15 days; nor, under Martin, is that sanction subject to judicial
review. Martin, 214 Mich App at 408-409. Consequently, on remand, any relief that the trial
court may grant to plaintiff would only relate to the confiscation of funds from his prisoner
account.


                                                 -4-
        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                         /s/ Mark T. Boonstra
                                                         /s/ Michael J. Kelly
                                                         /s/ Michael J. Riordan




                                             -5-
