A mail-box rule for inmates?

A state prison inmate will finally be able to mount a circuit-court challenge of an administrative determination that he intentionally kicked a prison guard while trying to escape.

The Michigan Supreme Court, on a 5-2 vote, has ordered the Ionia County Circuit Court to hear the case based on “unique procedural facts.”

Unique, indeed.

Patrick Kinney pleaded guilty to three of the four misconduct charges lodged against him after he attempted to escape from prison. But he was adamant that he did not intentionally kick a guard during the attempt. A Department of Corrections hearing officer found otherwise and later denied a rehearing.

From Chief Justice Marilyn Kelly’s concurring statement in Kinney v. Dep’t of Corrections:

Under MCL 791.255, plaintiff had 60 days from the delivery or mailing of that denial of rehearing, until May 3, 2004, to file an application for direct review by the circuit court. He delivered his application to prison officials on April 14, 2004. The prison records show that plaintiff’s petition was placed in the outgoing mail the next day, April 15. But the Ingham Circuit Court did not date-stamp the application as received until May 10, 2004, ten days after the filing deadline.

The circuit court issued an order allowing plaintiff to resubmit his application within 21 days. Plaintiff’s new deadline was August 4, 2004. He delivered his application to prison officials well in advance of the deadline, on July 20. The prison records indicate that this application was placed in the outgoing mail on July 21. Again, however, the circuit court did not record the application as received until well after the deadline, on August 13, 2004, 25 days after plaintiff delivered it to prison officials.

This time, the circuit court entered an order dismissing plaintiff’s petition as untimely. Plaintiff sought delayed leave to appeal the order, but the Court of Appeals denied it. This Court denied leave to appeal on October 31, 2006.

Almost three full years after filing his application for review of his assault conviction, plaintiff sought superintending control in the Ionia Circuit Court. That court dismissed the complaint, adopting the defendant’s reasoning that plaintiff’s only remedy had been a direct appeal of right to the circuit court. The Court of Appeals affirmed the dismissal.

Nearly five years after plaintiff filed the initial appeal challenging his assault conviction by the DOC hearing officer, this Court is finally granting plaintiff his day in court. The outrageousness of such a lengthy delay is obvious.

Kelly went on to say that that the case is a perfect example of why the MSC needs to adopt a prison-mailbox rule, under which a petition for review would be considered “filed” on the day it is handed to prison authorities for mailing.

No so fast, say Justices Maura Corrigan and Robert Young.

Corrigan, joined by Young, dissented from the court’s action of giving Kinney his day in court.

Corrigan said the appropriate remedy would be to

remand this case to the trial court and order the Department of Corrections (MDOC) to show cause for the consistent delays in transmitting the plaintiff inmate’s legal mail to the courts. First, the delays may have originated from the MDOC’s Baraga Maximum Correctional Facility, where plaintiff is housed. The MDOC is a party both to this suit and to the underlying suit in which plaintiff petitioned for judicial review of an MDOC hearing officer’s decision. The MDOC is also the beneficiary of the delays, which resulted in the dismissal of plaintiff’s petition in the underlying suit. Accordingly, it is appropriate to order the MDOC to explain the delays at a show cause hearing. Second, until the court has additional facts concerning the cause of the delays, providing relief to plaintiff is premature. Finally, the courts will benefit from explicit fact-finding by the trial court in this case. Even if the delays originated with the MDOC, their causes remain a mystery.

The MSC has opened an administrative file on adopting a prison-mailbox rule and will soon be considering the merits of such a rule.

Update 04/13/09: MSC Public Information Officer Marcia McBrien has informed The Michigan Lawyer Blog that the court will take up the prison-mailbox rule at the court’s May public administrative conference.

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SADO chief Neuhard is MiLW’s Lawyer of the Year

James R. Neuhard, director of Michigan’s State Appellate Defender Office, has been selected as the Lawyer of the Year by Michigan Lawyers Weekly.

James R. Neuhard - I cant think of people who have more problems than the convicted.

James R. Neuhard - "I can't think of people who have more problems than the convicted."

Neuhard was chosen this afternoon from a group of lawyers who were given MiLW’s Leaders in the Law Award.

In the words of Glenda Russell, MiLW’s Publisher and Editor-in-Chief:

Jim Neuhard represents those who are poor and imprisoned, those who much of society wishes would just disappear, or, at least, be treated as separate and unequal.

True, many of them are guilty, which does make them separate.

But Jim is that nagging voice inside all of our heads, that voice that says, “Yes, separate, but still protected by the Constitution of the United States of America.”

In other words, equal under the law.

Neuhard will barely have time to bask in the glory of being MiLW’s 2009 Lawyer of the Year. He’s due in Washington, D.C. early tomorrow to attend a Congressional hearing about the sorry state of Michigan’s indigent-defense system.

Our own Carol Lundberg will be there, too, to cover the hearing.

We’ll have more about Neuhard and the hearing in the March 30 issue of Michigan Lawyers Weekly.

COA expands e-filing options

The Michigan Court of Appeals has expanded its electronic filing and service program, E-File&Serve, to include all criminal cases and all civil appeals from the Oakland County Circuit Court that were assigned to that court’s e-filing project.

According to Marcia McBrien, the Michigan Supreme Court’s Public Information Officer, the program had been limited to “civil appeals from Michigan Public Service Commission rulings and appeals by right in criminal cases from Wayne, Oakland, and Macomb counties where the State Appellate Defender Office represents the defendant.”

There are plenty of advantages to using E-File&Serve, says the COA and the program’s service provider, Wiznet, Inc., in a joint statement. Some highlights:

  • The Court of Appeals does not require paper filings of documents submitted through the E-File&Serve system.
  • The system enables attorneys to submit filings electronically to the Court 24-hours a day, 7 days a week from any PC with Internet access.
  • A filing received by 11:59 p.m. on a business day is considered filed that business day under MCR 7.202(2). A filing received on a weekend or holiday is considered received on the next business day.
  • The Clerk’s Office will review documents on a daily basis and has a goal of reviewing documents within one business day of their arrival.
  • Once documents are submitted electronically, you may view the status of those documents on the Wiznet system.

There’s more:

With E-File & Serve, attorneys have the option to immediately e-serve other parties in the case.

  • Documents are electronically served to other parties in a case via email generated by the system.
  • When you opt to use e-service, a service notification email containing a link to the electronic document(s) will be served to other parties in the case.
  • You will be able to use the system to track when each party received and opened the filing.

    The COA has a complete set of E-File&Serve guidelines here.

    Woman wouldn’t remove veil in court, evidence rule amendment considered

    Ginnah Muhammad is a practicing Muslim who wears a hijab, a head scarf and veil that covers her entire head except for her eyes.

    Her refusal to remove it to testify at her small-claims case against a car rental company has prompted the Michigan Supreme Court to consider a proposed amendment of MRE 611.

    Muhammad rented a car from Enterprise Leasing. Enterprise charged her for damage to the car. Muhammad responded by filing a small-claims suit to get her money back.

    Thirty-First District Court Judge Paul J. Paruk, sitting as the small-claims court, told Muhammad she had to remove the veil before she could testify. The judge said he needed to see her face so that he could better assess her credibility.

    Muhammad balked. She told Paruk she would remove the veil only for a female judge.

    Paruk dismissed her case without prejudice.

    Enterprise, in the meantime, filed a small-claims suit against Muhammad. She removed it to the 31st District Court. This set up another confrontation with Paruk, who is that court’s only judge. Muhammad asked Paruk to recuse himself from the case. Paruk denied the request and awarded Enterprise $2,083 in damages. Muhammad’s appeal is pending in Wayne County Circuit Court.

    But it’s not just about the two grand. Muhammad sued Paruk in federal district court. She alleged that Paruk’s insistence that she remove her veil violated her First Amendment right to free exercise of religion and denied her access to the court system. See, Muhammad v. Paruk, 553 F. Supp. 2d 893 (E.D. Mich. 2008).

    U.S. District Court Judge John Feikins declined to exercise jurisdiction over the case. But in doing so, he noted that under Employment Division v. Smith, 494 U.S. 872 (1990), “the right to free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”

    Feikins then explained why he wouldn’t hear the case:

    [I]f Paruk has a valid, neutral and generally applicable policy of requiring witnesses to keep their faces visible while giving testimony, that policy would not violate Muhammad’s right to free exercise of her religion. Determining if Paruk has such a policy and, if he does, deciding whether it is valid, neutral and generally applicable would necessitate a detailed examination of how Paruk manages his court room as a state court judge. Conducting this type of review as a federal judge would undoubtably increase friction in the relationship between our state and federal courts. I find, therefore, that respect for the relationship between our state and federal courts weighs heavily against exercising jurisdiction over Muhammad’s declaratory judgment action for violation of her right to free exercise of her religion.

    The proposed amendment of MRE 611 would give Michigan judges the framework to create the neutral policy Feikins mentioned:

    (b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

    A staff comment to the proposed amendment explains:

    This proposed amendment would clarify that a judge is entitled to establish reasonable standards regarding the appearance of parties and witnesses to evaluate the demeanor of those individuals and to ensure accurate identification.

    The court is accepting comments on the proposed amendment through April 1, 2009. Send them by e-mail to MSC_clerk@courts.mi.gov or by regular mail to Box 30052, Lansing, MI, 48909.