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Opinion No. 5464

March 23, 1979


Prosecution of juvenile state wards who are truant or absent without leave from training schools


Prosecution of juvenile state wards who are truant or absent without leave from training schools

A juvenile state ward may not be prosecuted for violation of Sec. 197c of the Michigan Penal Code which provides that a person lawfully imprisoned who escapes from the place of confinement is guilty of a felony.

John T. Dempsey


Michigan Department of Social Services

300 S. Capitol Avenue

Lansing, Michigan 48926

You have requested my opinion regarding the following questions:

'1. Whether or not MCLA 750.197c is a proper statute under which to prosecute state wards who are truant or absent without leave from training schools or other rehabilitative placements made by DSS.

'2. Whether or not, assuming the statute is not applicable, DSS or the state has the responsibility to represent such youth under a theory of DSS being the legal custodian objecting to abridgement of the wards' rights and the complaint of practice being an indirect challenge on our jurisdiction to maintain custody and control of the ward for purposes of rehabilitation.

'In the event, you answer the above questions in a manner favorable to the ward, will your Office provide legal representation for the ward.

'3. In the event, Department employees, including myself or the Director of the Office of Children and Youth Services, are charged on a criminal negligence theory based upon the Livingston County Prosecutor's interpretation of the penal code, will your Office provide legal representation. If not, are there any legal provisions for us retaining other counsel and representation at state expense.'

Responding to your first question, Section 197c of the Michigan Penal Code, 1931 PA 328; MCLA 750.197c; MSA 28.394(3) provides as follows:

'A person lawfully imprisoned in a jail, other place of confinement established by law for any term, or lawfully imprisoned for any purpose at any other place, including but not limited to hospitals and other health care facilities or awaiting examination, trial, arraignment, sentence, or after sentence awaiting or during transfer to or from a prison, for a crime or offense, or charged with a crime or offense who, without being discharged from the place of confinement, or other lawful imprisonment by due process of law, through the use of violence, threats of violence or dangerous weapons, assaults an employee of the place of confinement or other custodian knowing the person to be an employee or custodian or breaks the place of confinement and escapes, or breaks the place of confinement although an escape is not actually made, is guilty of a felony.' (Emplasis added)

It is a well-established rule of law that penal statutes must be strictly construed. People v Goulding, 275 Mich 353; 266 NW 378 (1936); Lansing v Brown, 172 Mich 50; 137 NW 535 (1912). Further, as the Michigan Court of Appeals noted in People v Willie Johnson, 75 Mich App 221, 225; 255 NW2d 207 (1977), '[t]he rule is most often employed in determining what actions come within the scope of a statutory prohibition. The principle requires that doubtful conduct be found not criminal.'

An examination of the statute in question indicates therein no language referring to the escape of a juvenile state ward from training schools, youth homes or half-way houses. On the contrary, the statute appears to be intended to solely address escapes by criminal defendants and convicted criminals since it refers to imprisonments in jails or other places for a term (1) and confinements for examination, trial, arraignment and sentencing.

Reinforcing such interpretation is the fact other provisions in the Michigan Penal Code, 1931 PA 238 Secs. 185 and 186, MCLA 750.185 and 186; MSA 28.282 and 283, specifically refer to aiding or assisting the escape of a girl or boy from the girl's training school or boys vocational school or from a home in which a youth has been placed by the officers of such school. Thus, the legislature has utilized specific language in another criminal statute detailing a criminal offense involving escapes by juveniles from custodial facilities where they had been placed by the Department of Social Services. Had it so intended, the Legislature could have detailed such an offense in the statute which is the subject of your inquiry. (2)

It is my opinion, therefore, that MCLA 750.197c; MSA 28.394(3), does not encompass the escape of a state ward from a training school or other authorized rehabilitative placement.

Responding to your second question, the Department of Social Services must, pursuant to Sec. 3 of the Youth Rehabilitation Services Act, 1974 PA 150, Sec. 3; MCLA 803.303; MSA 25.399(53), assume responsibility for all juveniles committed to it as state wards. However, nothing in the act or in Chapter XIIA of the Probate Code, 1939 PA 288; MCLA 712A.1 et seq; MSA 27.3178(598.1) et seq, confers upon the Department the status of duties of a full legal guardian of the person. Rather, the Department is given the authority of a special guardian of such a ward for the limited purposes of the youth's care and rehabilitation, including the provision of food, clothing, housing, education and routine medical services. I would note that the determination of a non-routine matter crucial to the ward's welfare, i.e.--the consent to non-emergency elective surgery for the ward, has been expressly reserved to the ward's parents or legal guardian.

Inasmuch as no duty encompassing the representation of the ward is placed upon the Department and since the determination of who the ward's legal representative will be in a criminal proceeding is as crucial a decision as that statutorily reserved to the parents or legal guardian by the legislature, it is my opinion that the Department of Social Services does not have the legal duty to provide representation for a state ward who is the subject of criminal proceedings.

In view of my response to the first question, it is unnecessary to address the second question.

As to your final question concerning whether this office will represent employees of Department of Social Services charged with criminal negligence, the Attorney General has prosecutorial powers and is responsible for supervising the work of the prosecuting attorney, MCLA 14.28; MSA 3.181. In discharging these responsibilities, the Attorney General may not also provide the defense for persons so charged.

I would note, however, that 1978 PA 141, amending 1964 PA 170, Sec. 8, MCLA 691.1408; MSA 3.996(108) authorizes a state agency, in its discretion, to pay for, engage or furnish the services of an attorney in criminal actions where the defendant state officer or employee reasonably believed that he was acting within the scope of his authority at the time of the alleged criminal conduct.

Frank J. Kelley

Attorney General

(1) Juveniles are not committed to the state for any definite term, but rather may be discharged at such time as the Youth Parole and Review Board deems appropriate. MCLA 803.307; MSA 25.399(57).

(2) I would also note that Sec. 6 of the Youth Rehabilitation Services Act, 1974 PA 150, Sec. 6 MCLA 803.306; MSA 25.399(56) provides for the return to a state juvenile facility or residential placement, by a peace officer, of a state ward who is 'absent' without prior approval of the Department of Social Services.