Vernon Lenard Kato v. Department of Corrections ( 2019 )

Order Michigan Supreme Court
Lansing, Michigan
September 13, 2019 Bridget M. McCormack,
Chief Justice
158812 David F. Viviano,
Chief Justice Pro Tem
VERNON LENARD KATO, Stephen J. Markman
Plaintiff-Appellant, Brian K. Zahra
Richard H. Bernstein
v SC: 158812 Elizabeth T. Clement
COA: 344089 Megan K. Cavanagh,
Justices
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
_____________________________________/
By order of May 22, 2019, the Department of Corrections was directed to answer
the application for leave to appeal the November 5, 2018 order of the Court of Appeals.
On order of the Court, the answer having been received, the application for leave to appeal
is again considered, and it is DENIED, because we are not persuaded that the questions
presented should be reviewed by this Court.
CAVANAGH, J., (concurring).
I concur in the denial of leave to appeal for two reasons. First, plaintiff does not
appear to have complied with the requirement in MCR 3.303(A)(2) that his action “be
brought in the county in which the prisoner is detained,” but instead initiated his action in
the Court of Appeals. He may have done so having observed that MCR 7.203(C)(3) allows
the Court of Appeals to “entertain an action” for habeas corpus. However, reading the two
rules together, it appears the Court of Appeals may only “entertain” an action for habeas
corpus if the action was first “brought” in the county in which the prisoner is detained—
presumably in circuit court. Second, even if the action for habeas corpus was correctly
initiated, plaintiff’s argument relies on the factual predicate that he was presented with a
certificate of discharge from parole. If that is true, plaintiff may well have been, and may
yet be, entitled to relief. The Department of Corrections may not cancel a parole discharge
“once the final order of discharge has been entered and the certificate of discharge issued
to the prisoner.” People v Holder, 483 Mich 168, 173 (2009). A discharge from parole is
a “remission of the remaining portion of [a] sentence. . . . After delivery it cannot be
recalled.” In re Eddinger, 236 Mich 668, 670 (1926). Plaintiff has requested an evidentiary
hearing to establish that he was presented with the certificate, but he has made no offer of
proof as to how he would establish this fact at such a hearing.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
September 13, 2019
b0910
Clerk