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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. 6474 October 21, 1987 JAILS: Private ownership and operation of a jail confining persons violating city ordinances MUNICIPALITIES: Cities--power to confine persons in a jail owned and operated by a private company Cities--power to lease jail for confinement of persons violating city ordinances The Legislature has not authorized a city to confine persons convicted for violation of its ordinances in a jail owned and operated by a private company. A city may lease and operate a jail owned by a private company for the confinement of persons violating city ordinances. Honorable Gary M. Owen State Representative The Capitol Lansing, Michigan 48909 Honorable Teola P. Hunter State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion on the following question: "May cities confine individuals, who are liable for imprisonment as a result of violations of city ordinances, in jail facilities owned and operated by private companies, as an alternative to using the jail of the county in which the city is located?" Cities have the statutory authority to confine persons liable to imprisonment in the county jail, or may provide for and maintain a city prison. MCL 117.4i; MSA 5.2082, provides, in part: "Each city may in its charter provide: "(10) For the punishment of those who violate its laws or ordinances, but no punishment shall exceed a fine of $500.00 or imprisonment for 90 days, or both, in the discretion of the court; said imprisonment may be in the county jail or city prison, or in any workhouse in the state authorized by law to receive prisoners from such city." See also, the fourth class cities act, MCL 90.8; MSA 5.1729, and MCL 93.1; MSA 5.1755. MCL 117.4e; MSA 5.2078, of the home rule cities act also provides, in part: "Each city may in its charter provide: "(1) For the acquisition by purchase, gift, condemnation, lease, construction or otherwise, ... the following improvements including the necessary lands therefor, viz: ... police stations, ... city prisons and workhouses, penal farms, institutions,...." [Emphasis added.] Inasmuch as MCL 117.4e; MSA 5.2078, authorizes the acquisition of a city prison by lease, the part of your question relating to private ownership (as opposed to operation) of a city jail is answered in the affirmative. Compare, State v Doyle & Associates, Inc, 374 Mich 222; 132 NW2d 99 (1965), and Alan v Wayne Co, 388 Mich 210, 310; 200 NW2d 628 (1972), regarding a lease, leaseback and purchase of a facility. With regard to the operation of a local jail, MCL 791.262; MSA 28.2322, provides, in pertinent part: "(1) As used in this section: "(c) 'Jail' means a facility that is operated by a local unit of government for the detention of persons charged with, or convicted of, criminal offenses or ordinance violations; .... [Emphasis added.] "(d) 'Local unit of government' means any ... city,.... "(3) The department shall supervise and inspect jails and lockups that are under the jurisdiction of the county sheriff to obtain facts concerning the proper management of the jails and lockups and their usefulness. The department shall promulgate rules and standards promoting the proper, efficient, and humane administration of jails and lockups that are under the jurisdiction of the county sheriff...." Formerly, this statute provided for the supervision and inspection of "local jails and houses of correction." See, Mitchell v Dep't of Corrections, 113 Mich App 739; 318 NW2d 507 (1982), Young v Ann Arbor, 119 Mich App 512; 326 NW2d 547 (1982), Young v Ann Arbor (On Rehearing), 125 Mich App 459; 336 NW2d 24 (1983), remanded for reconsideration in light of Ross v Consumers Power (On Rehearing), 420 Mich 567, in lieu of granting app, 422 Mich 901; 367 NW2d 333 (1985), and Davis v Detroit, 149 Mich App 249; 386 NW2d 169, lv den 426 Mich 856 (1986). Although the definition of a "jail" in MCL 791.262; MSA 28.2322, remains unchanged and refers to operation by a local unit of government, including a city, the statute was amended by 1984 PA 102 to redefine the term as a jail "under the jurisdiction of the county sheriff" and to take away the supervisory authority of the Department of Corrections over other local detention facilities. See, Davis, supra, 149 Mich App 249, 259. Prior to such amendment, the Court of Appeals stated in Young, supra, 119 Mich App 512, 516-517: "The purpose of the statute authorizing the department to supervise and inspect local penal institutions is to promote proper, efficient, and humane administration of those facilities by drawing upon the experience and expertise of the department.... We hold that the statutory term 'local jail' was meant to encompass any facility operated by a unit of local government for the physical detention of persons charged with or convicted of a criminal offense. This includes, at least, city and county jails and local lockups." [Emphasis added.] In Mitchell, supra, 113 Mich App 739, 743, the court stated: "Home rule cities may provide in their charters for the acquisition and maintenance of city prisons.... Control over a city prison, like control over other city agencies, is vested in a city's governing body." [Statutory citations omitted.] It has been held that home rule cities are authorized to provide separate city prisons. Grand Rapids v Kent County, 96 Mich App 15, 22-23; 292 NW2d 475, lv den 410 Mich 867 (1980). It is my opinion, therefore, that the Legislature has not authorized cities to confine individuals who are liable for imprisonment as a result of city ordinance violations in jail facilities operated by private companies. It is my further opinion that cities may confine such individuals in jail facilities which are privately owned but leased to a city and operated by the city. Frank J. Kelley Attorney General
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