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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6215

April 5, 1984

CORRECTIONAL INSTITUTION:

Invocation of emergency powers to relieve overcrowded prisons by rescinding previous declaration of emergency

GOVERNOR:

Rescission of declaration of prison overcrowding state of emergency

PRISON OVERCROWDING EMERGENCY POWERS ACT:

Authority of Governor to declare prison overcrowding state of emergency upon rescission or previous declaration

The Governor, upon appropriate certification of the Commission of Corrections, shall formally rescind the previous declaration of prison overcrowding state of emergency before declaring a new prison overcrowding state of emergency.

Honorable Jeffrey D. Padden

State Representative

State Capitol

Lansing, Michigan

You have requested my opinion on a question pertaining to the operation of the Prison Overcrowding Emergency Powers Act, 1980 PA 519; MCLA 800.71 et seq; MSA 28.1437(1) et seq. Your question, in effect, is whether, under a recent amendment to that Act, the Governor may declare a prison overcrowding emergency prior to the formal rescission of a prior declaration of emergency.

OAG, 1983-1984, No. 6182, p 181 (August 30, 1983), considered the question whether the Governor may issue a declaration of a prison overcrowding emergency where a previous declaration has not been rescinded. The opinion concluded:

'(T)he Governor may declare a prison overcrowding state of emergency in the event that the population of the prison system exceeds the rated design for 30 consecutive days upon appropriate certification by Commission of Corrections. It is my further opinion that the formal rescission of the December 22, 1982 declaration is not requisite to a new declaration of emergency.

Thereafter, the Legislature, by 1983 PA 255, amended section 6 of the Prison Overcrowding Emergency Powers Act, supra to read:

'If at any time during the state of emergency, either the population of the female or male prison system, as applicable, is reduced to 95% of the capacity or 180 days have elapsed since the declaration of the state of emergency by the governor pursuant to section 4, the commission shall certify that fact to the governor and request that the governor rescind the state of emergency.' (Emphasis added.)

The clear legislative intent of this amendment is to require, upon appropriate certification by the Commission of Corrections, a formal rescission of a state of prison overcrowding emergency before a new declaration may be entered by the Governor.

It is my opinion, therefore, that the Governor, upon appropriate certification of the Commission of Corrections, shall formally rescind the previous declaration of prison overcrowding state of emergency before declaring a new prison overcrowding state of emergency.

Frank J. Kelley

Attorney General


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