STATE OF MICHIGAN

A Michigan law enforcement agency having custody of a person who signed a prior waiver of extradition in another state may deliver the person to the other state without first taking the person before a judge, provided that all conditions set forth in section 25a of the Uniform Criminal Extradition Act are established.

Opinion No. 7112

June 28, 2002

Mr. John G. McBain
Jackson County Prosecutor
312 South Jackson Street
Jackson, MI 49201

You have asked whether a Michigan law enforcement agency having custody of a person who signed a waiver of extradition may deliver the person to another state without first taking the person before a judge.

The Uniform Criminal Extradition Act (UCEA), 1937 PA 144, MCL 780.1 et seq, was enacted to make uniform the procedure governing interstate extradition. Through 1994 PA 380, the Legislature added new section 25a to provide a mechanism to bypass the lengthy formal extradition process in certain specified circumstances. Section 25a provides that:

Notwithstanding section 3,¹ a law enforcement agency in this state holding an individual who is alleged to have broken the terms of his or her probation, parole, bail, or other release in the demanding state shall immediately deliver the individual to the authorized agent of the demanding state without the requirement of a governor's warrant if all of the following have occurred:

(a) The individual has signed a prior waiver of extradition as a term of his or her current probation, parole, bail, or other release in the demanding state.

(b) The law enforcement agency holding the individual has received a copy of the prior waiver of extradition signed by the individual and confirmed by the demanding agency.

(c) The law enforcement agency has received photographs, fingerprints, or other evidence that properly identify the individual who signed the waiver.

By its terms, the statute does not require a court hearing or judicial determination before the law enforcement agency may act. The omission in the statutory language of any judicial oversight role is the primary indicator of legislative intent. However, since the statute is silent on the issue of a judicial role, there is some ambiguity. In cases of ambiguity, it is appropriate to consult the legislative history as a tool of statutory interpretation. Luttrell v Dep't of Corrections, 421 Mich 93, 103; 365 NW2d 74 (1985).

A study of the legislative history of 1994 SB 1071, which became 1994 PA 380, confirms that the absence of language requiring judicial involvement was not an oversight but a deliberate judgment by the Legislature. On third reading in the Senate, SB 1071 amended section 25a to require as a condition of the waiver of extradition that:

"(1) . . . A JUDGE OF ANY COURT OF RECORD WITHIN THIS STATE FINDS THAT ALL OF THE FOLLOWING HAVE OCCURRED:

(A) THE INDIVIDUAL HAS SIGNED A WRITTEN WAIVER OF EXTRADITION AS A TERM OR CONDITION OF HIS OR HER CURRENT PROBATION, PAROLE, BAIL, OR OTHER RELEASE IN THE DEMANDING STATE.

(B) THE PEACE OFFICER OR LAW ENFORCEMENT AGENCY HOLDING THE INDIVIDUAL HAS RECEIVED A COPY OF THE WRITTEN WAIVER OF EXTRADITION SIGNED BY THE INDIVIDUAL AND THE AUTHENTICITY OF THE COPY HAS BEEN CONFIRMED BY A COURT, AGENCY, OR AUTHORIZED AGENT OF THE DEMANDING STATE.

(C) THE PEACE OFFICER OR LAW ENFORCEMENT AGENCY HOLDING THE INDIVIDUAL HAS RECEIVED PHOTOGRAPHS, FINGERPRINTS, OR OTHER EVIDENCE THAT IDENTIFIES THE INDIVIDUAL BEING HELD AS THE INDIVIDUAL WHO SIGNED THE WRITTEN WAIVER OF EXTRADITION.

(2) IF THE COURT DETERMINES THAT THERE HAS BEEN A WAIVER OF EXTRADITION UNDER SUBSECTION (1), THE COURT SHALL ORDER THE PEACE OFFICER OR LAW ENFORCEMENT AGENCY HOLDING THE INDIVIDUAL TO DELIVER THE INDIVIDUAL INTO THE CUSTODY OF THE AUTHORIZED AGENT OF THE DEMANDING STATE." [Emphasis added.]

As thus amended, the Senate passed SB 1071 by vote of Yeas - 34, Nays - 0. 1994 Journal of Senate 1213-1214. The House, however, approved SB 1071 by enacting House Substitute (H-1) without the above-quoted provision for judicial oversight. 1994 Journal of the House 2578. The Senate concurred in the House Substitute (H-1) to SB 1071. 1994 Journal of Senate 2212. Thus, the legislative history of section 25a confirms the Legislature's intent that a fugitive from another state who is alleged to have broken the terms of probation, parole, bail, or other release and who has executed a prior waiver of extradition in that state may be delivered to a demanding state without first being taken before a judge.

The purpose of amendatory 1994 PA 380 is explained in Senate Legislative Analysis, SB 1071, December 20, 1994, which states that if the three requirements in the statute are satisfied then:

[A] law enforcement agency in this State holding an individual who was alleged to have broken the terms of his or her probation, parole, bail, or other release in the demanding state, immediately would have to deliver the individual to the authorized agent of the demanding state without the requirement of a governor's warrant . . . .

Had the Legislature intended to require judicial involvement in the section 25a procedure, it could have done so. For example, section 25 of the UCEA expressly provides for a waiver of extradition to be executed in this state by a fugitive in the presence of a judge of a court of record, and an explanation by the judge of the fugitive's right to issuance of a warrant of extradition and his or her right to obtain a writ of habeas corpus.

Michigan appellate courts have not addressed whether judicial review is necessary before a law enforcement agency may return a fugitive who has executed a prior waiver of extradition in another state as a condition of his or her release. The issue, however, has been addressed by appellate courts in other states. In Ex Parte Johnson, 610 SW2d 757, 759 (Tex Crim App, 1981), the court held that formal extradition proceedings were unnecessary where the absconding probationer or parolee signed a prior waiver of extradition in another state as a condition of release in that state under the UCEA. In Commonwealth v Green, 581 A2d 544, 556 (Penn, 1990), the Pennsylvania Supreme Court followed the rule in Ex Parte Johnson, and stated:

The vast majority of the decisions we have found reject the view that a waiver before a judge or magistrate is the exclusive and only way in which extradition can be waived.

The court concluded that there was nothing illegal or unconstitutional about this extradition waiver procedure. Green, 581 A2d at 557; See also New Jersey v Maglio, 459 A2d 1209, 1212 (NJ Super, 1983). But see In re Klock, 133 Cal App 3d 726; 184 Cal Rptr 234, 237 (1982), where a divided California Court of Appeals was constrained to follow the earlier California Supreme Court decision in In re Patterson, 64 Cal 2d 357; 411 P2d 897 (1966), holding that the extradition waiver must be signed before a magistrate in the asylum state.

It is my opinion, therefore, that a Michigan law enforcement agency having custody of a person who signed a prior waiver of extradition in another state may deliver the person to the other state without first taking the person before a judge, provided that all conditions set forth in section 25a of the Uniform Criminal Extradition Act are established.

JENNIFER M. GRANHOLM
Attorney General

¹Section 3 of the UCEA specifies the form and content of the papers that must accompany a formal request to the Governor seeking an extradition.