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Opinion No. 5179

March 16, 1977


Authority of prison warden


Visiting privileges


Adoption of prison rules

An inmate confined to a penal institution upon conviction of a crime cannot enjoy the same rights of personal freedom as other members of society.

In the absence of a showing that a prison warden's discretionary power has been arbitrarily exercised, no objection can be raised to curtailment of visiting privileges of a prison inmate.

Honorable Daniel S. Cooper

State Sentor

The Capitol

Lansing, Michigan

You recently sought my opinion on the following question:

'Does a prison warden have the authority to arbitrarily reduce visting privileges?'

At the outset, it must be recognized that an inmate confined to a penal institution upon conviction of a crime does not enjoy the same rights of personal freedom as other members of society. The problems of security, the obligation of the state to provide a safe and healthy environment and need to enforce an enlightened rehabilitation program must be considered in determining the extent to which the rights of a prison inmate may be curtailed.

This reality is recognized by the courts both in Michigan and throughout the United States. In Green v Correction Department, 30 Mich App 648, 186 NW2d 792 (1971), the court noted that a person 'when incarcerated . . . is prevented, by law, from exercising the rights and privileges he enjoyed as a free member of society.' 30 Mich App 648, 654.

A similar conclusion was stated by the same court in Wojnicz v Corrections Department, 32 Mich App 121, 188 NW2d 251 (1971), which held:

'As a result of petitioner's incarceration within the State Prison, he does not enjoy the full benefit of Federal and State procedural safeguards. . . .' 32 Mich App 121, 125.

A summary of the law in this area, found in Am Jur 2nd, concludes that a prisoner 'has only such rights as can be exercised without impairing the requirements of prison discipline . . . the exercise of rights freely enjoyed by nonprisoners may be abridged in a prison environment when such exercise would pose a threat to internal discipline. . . .' 60 Am Jur 2d Penal and Correctional Institutions Sec. 41.

Turning to your question, it will be noted that a prison warden has only that authority delegated to him by statute, administrative rule or implied from the foregoing powers. Formerly, the powers and duties of a prison warden were prescribed by statute. See MCLA 800.9; MSA 28.1379. This provision was repealed by 1972 PA 179; such repeal does not, however, leave prison authorities without the power to maintain the necessary controls over the conduct of prison inmates.

In LundBerg v Corrections Commission, 57 Mich app 327, 225 NW2d 752 (1975), the court ruled that the Corrections Commission has the authority and the duty to formulate rules regulating the management and control of state penal institutions, MCLA 791.206; MSA 28.2276. In so deciding, the court stated:

'The Commission in its brief has called our attention to the fact that parts of MCLA 800.1 et seq; MSA 28.1371 et seq. dealing with the duties of the warden, clerk and physician have been repealed. This leaves no legislative pronouncement as to the proper functions of their responsibilities. We agree with the plaintiff that this repeal creates a void which can be corrected only by the promulgation of proper rules. The purpose of 1972 PA 179, which repealed the foregoing provisions, as stated in its title was to 'repeal . . . obsolete and inoperative laws'. Thus, the Legislature must have considered that MCLA 791.206; MSA 28.2276 was sufficient in detail to enable the Commission to formulate rules.' (pp 329, 330)

The court then held in LundBerg that the rules of the Commission must be adopted in accordance with the rule-making procedures of the Administrative Procedures Act, MCLA 24.201 et seq; MSA 3.560(101) et seq. (1)

The Corrections Commission is the head of the Department of Corrections and its powers and duties are prescribed by law. MCLA 791.201 et seq; MSA 28.2271 et seq. The commission has the authority to appoint a director who serves at its pleasure and exercises broad authority as its chief administrative officer. The director, subject to approval of the commission, is authorized to promulgate rules which provide for the management and control of state penal institutions, MCLA 791.206(d); MSA 28.2276(d); these rules govern the conduct of prison wardens and determine the limits of their discretionary authority. It is clear, however, that a prison warden may exercise discretion in carrying out his duties. Parshay v Warden of Marquette Prison, 30 Mich App 556; 186 NW2d 859 (1971).

Your specific question, however, is whether a prison warden may arbitrarily reduce visiting privileges. While under our system of justice the authority granted to any public official, including a warden, may not be exercised in an arbitrary fashion, the issue really becomes whether on a case-by-case basis the particular action is arbitrary under the circumstances.

The term 'arbitrary' has been defined to mean 'without adequate determining principle; . . . not done or acting according to reason or judgment; depending on the will alone; . . . capriciously; tyrannical; despotic.' Black's Law Dictionary, Rev. 4th Ed., p 134.

When any public official acts in an arbitrary fashion, the courts will declare such action to be a violation of the legal rights of the person injured by arbitrary action. See 73 CJS, Public Administrative Bodies and Procedure, Sec. 61, p 388. However, before that point is reached there must be a clear showing that the discretionary power involved has been arbitrarily and capriciously exercised. Smith v Wayne County Sheriff, 278 Mich 91; 270 NW 227 (1936) and People v Chapman, 301 Mich 584; 4 NW2d 18 (1942).

Frank J. Kelley

Attorney General

(1) Currently, rules regulating the conduct of inmates and delineating the authority of a warden are in the process of being adopted.