MSC jury reform project honored by Nat’l Center for State Courts

The Michigan Supreme Court and 12 judges who took part in a two-year pilot project to test various jury reform proposals are receiving 2012 G. Thomas Munsterman Award for Jury Innovation.

The award, conferred by the National Center for State Courts, is given annually to recognize significant improvements or innovations for juries, NCSC President Mary C. McQueen said.

The jury reform effort, initiated by the MSC in 2005, resulted in amendments to the Michigan Court Rules last year.

Some of the more significant changes: judges may allow discussion among jurors about evidence during trial recesses and note taking. Juries may request views of crime scenes or other relevant locations. Judges are required to provide copies of the jury instructions to jurors when they retire for final deliberations.

NCSC Vice President and General Counsel Robert Baldwin will present the award to the Court and pilot project judges following the Court’s first oral argument on October 9. The ceremony will take place at 10:45 a.m. in the old Supreme Court courtroom in the state Capitol building.

The judges participating in the 2009-2010 pilot project include:

• Judge Thomas P. Boyd, 55th District Court, Mason, Ingham County
• Judge William J. Caprathe (retired) and Judge Kenneth W. Schmidt, 18th Circuit Court, Bay County
• Judge Richard J. Celello, 41st Circuit Court, Dickinson/Iron/Menominee counties
• Judge Beth Gibson, 92nd District Court, Newberry, Luce/Mackinac counties
• Judge Timothy G. Hicks, 14th Circuit Court, Muskegon County
• Judge Richard W. May, 90th District Court, Charlevoix/Emmet counties
• Judge Wendy L. Potts, 6th Circuit Court, Oakland County
• Judge Donald L. Sanderson, 2B District Court, Hillsdale County
• Judge Paul E. Stutesman, 45th Circuit Court, St. Joseph County
• Judge David Viviano, 16th Circuit Court, Macomb County
• Judge Peter J. Wadel, Lake County Trial Court/79th District Court, Ludington

Latest court rule orders from the MSC

Late last month, the Michigan Supreme Court unanimously ruled in People v. Cole, that a defendant who pleaded guilty to sex crimes could withdraw his plea because the trial court neglected to tell him that along with a 5- to 15-year prison sentence would come a lifetime of electronic monitoring.

Justice Michael Cavanagh’s opinion stated::

MCR 6.302 and constitutional due process require a trial court to inform a defendant pleading guilty or no contest to first-degree criminal sexual conduct (CSC-I) or second-degree criminal sexual conduct (CSCII) that he or she will be sentenced to mandatory lifetime electronic monitoring, if required by MCL 750.520b(2)(d) or MCL 750.520c(2)(b).

Yesterday, the Court amended MCR 6.302 to explicitly reflect the holding in Cole. The added language is underscored in the block quote below.

MCR 6.302(B)(1) now provides:

(B) An Understanding Plea. Speaking directly to the defendant or defendants, the court must advise the defendant or defendants of the following and determine that each defendant understands:

(1) the name of the offense to which the defendant is pleading; the court is not obliged to explain the elements of the offense, or possible defenses;

(2) the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring under MCL 750.520b or 750.520c[.]

The amendment is effective immediately, although the Court will take comments until Oct. 1, and will consider the matter at a later public hearing.

In a proposed amendment of MCR 2.105,  plaintiffs seeking a court order for substituted service of process would be required, as part of the “diligent inquiry” to locate the defendant, to use the Internet.

The proposed amendment is underscored in the block quote below.

MCR 2.105(I)(2) would provide:

A request for an order under the rule must be made in a verified motion dated not more than 14 days before it is filed. The motion must set forth sufficient facts to show that process cannot be served under this rule and must state the defendant’s address or last known address, or that no address of the defendant is known. If the name or present address of the defendant is unknown, the moving party must set forth facts showing diligent inquiry to ascertain it. For purposes of this rule, “diligent inquiry” shall include an online search if the moving party has reasonable access to the Internet. A hearing on the motion is not required unless the court so directs.

To submit comments concerning the changes to either rule, follow the appropriate link for information.

MSC and COA: More visibility?

A proposed amendment of Michigan Supreme Court Administrative Order 1989-1 would expand the standards for allowing film or electronic coverage of MSC and Michigan Court of Appeals proceedings.

Under the proposal, a new section, AO-1981(2)(b) would provide the following:

(2) (b) In the Court of Appeals and the Supreme Court.

(i) Film or electronic media coverage shall be allowed upon request in all court proceedings except for good cause as determined under MCR 8.116(D). Requests by representatives of media agencies for such coverage must be made in writing to the clerk of the particular court not less than three business days before the proceeding is scheduled to begin. A judge has the discretion to honor a request that does not comply with the requirements of this subsection. The court shall provide that the parties be notified of a request for film or electronic media coverage. An order denying permission to film or otherwise provide electronic media coverage must state with particularity the reasons for the denial.

(ii) A judge may terminate, suspend, limit, or exclude film or electronic media coverage at any time upon a finding, made and articulated on the record, that good cause requires such action or that rules established under this order or additional rules imposed by the judge have been violated.

(iii) If a judge terminates, suspends, limits, or excludes film or electronic media coverage, the person who requested permission to film or otherwise provide for electronic media coverage may appeal that decision to the Chief Judge of the Court of Appeals. If the Chief Judge affirms the judge’s decision, the requester may appeal by leave to the Supreme Court.

Refer to ADM Fine No. 2011-09 for information on how to submit comments concerning the proposal. The comment period closes Oct. 1.

MSC approves electronic signatures and notarization

The Michigan Supreme Court has amended MCR 1.109 to provide for electronic signatures and electronic notarization of signatures when necessary.

The Court added new subsection C, which provides:

(C) Signatures.

(1) A signature, as required by these court rules and law, means a written signature as defined by MCL 8.3q or an electronic signature as defined by this subrule.

(2) An electronic signature means an electronic sound, symbol, or process, attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

(3) If a law or court rule requires a signature to be notarized or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law or court rule, is attached to or logically associated with the signature.

(4) Retention of a signature electronically affixed to a document that will be retained by the court in electronic format must not be dependent upon the mechanism that was used to affix that signature.

Amended MCR 1.109 takes effect immediately.

The Court also amended MCR 3.204 – Proceedings Affecting Children. Under the amended rule, which takes effect Sept. 1, disputes concerning child support, custody or parenting time will be handled by motion practice whenever possible instead of filing a supplemental complaint.

The goal is to consolidate cases in a way that is more compatible with trial court case management systems.

Under an amendment to MCR 3.616, ex parte voluntary foster care petitions from the Department of Human Services must now indicate the youth’s race. The amendment, which takes effect Sept. 1, makes the rule consistent with MCL 400.655(a).

The Court declined to adopt proposed MCR 3.220, which would have required trial courts to set deadlines in domestic arbitration cases and would have allowed arbitrators to issue interim awards during the arbitration proceedings.

Immigration consequences of plea: No judicial involvement

On a 5-2 vote, the Michigan Supreme Court has declined to adopt court rules that would have required judges to either (a) inquire whether a defendant knows that pleading guilty may have potential immigration consequences or (b) provide an advice of rights to that effect.

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme Court held that an attorney provided ineffective assistance by not telling a client that pleading guilty to a drug charge could get him deported.

The MSC didn’t provide a reason why it passed on both versions of proposed amendments to MCR 6.302 and MCR 6.610.

Justices Marilyn Kelly and Michael Cavanagh dissented from the majority’s May 16 decision.

MSC considering MCR amendments

The Michigan Supreme Court has released for comment proposed amendments to the Michigan Court Rules.

Summary Disposition: A change to MCR 2.116(C)(7) would clarify the procedure for bringing a motion for summary disposition on the grounds of a forum selection clause.

Attorney Discipline: MCR 9.113 would be revised to clarify that the grievance administrator is required to disclose an answer in a Request for Investigation to the complainant, but may decline to disclose supporting documents if there is good cause not to do so.

Criminal Law: A proposed amendment of MCR 6.419 (Motion for Directed Verdict of Acquittal) contains two alternatives. Alternative A would revise MCR 6.419 to be similar to the federal corollary of this rule (FR Crim P 29[b]). Under this language, the trial court would be entitled to reserve judgment on a motion for directed verdict. Alternative B would allow a trial court to reconsider its decision to grant a directed verdict. This language was proposed based on the United States Supreme Court decision of Smith v Massachusetts, 543 US 462 (2005).

Parole Board Appeals: The concept for a proposed revision of MCR 7.118 was submitted by the State Bar of Michigan Prisons & Corrections Section. The section asserts that if a prosecutor or victim files an appeal of a decision of the Michigan Parole Board to grant parole, the appellee (the prisoner) should be entitled to be represented by counsel if the prisoner is indigent. The proposed amendments would require a prisoner to request representation within 14 days of notice of the appeal, and establish other procedural steps.

Foreign Language Interpreters: A proposed amendment of MCR 1.111 and MCR 8.127 includes two separate proposed rules that relate to foreign language interpreters. The first proposed rule, MCR 1.111, would establish the procedure for appointment of interpreters, and establish the standards under which such appointment would occur. The proposed rule includes alternative language for subrules (B) and (F)(4).

The second proposed rule, MCR 8.127, would create a board to oversee certification of interpreters and other interpreter-related functions, and provide a procedure for imposing discipline upon interpreters who commit misconduct. The board’s structure and responsibilities are similar to those of the Court Reporting and Recording Board of Review described in MCR 8.108.

The comment period for these proposals closes Sept. 1, 2012. Please refer to the link for each proposal for instructions on submitting comments.

Guardianship and default court rule changes proposed

A proposed court rule amendment, if adopted by the Michigan Supreme Court, would clear the way for the state to receive federal funding for a program that extends foster care services for qualifying youths.

Two new laws, 2011 PA 225 and 2011 PA 229, spell out the circumstances under which youths who left the foster care program at age 18 can re-enter the program and receive additional services until they are 21.

The proposed amendment of MCR 3.979 would implement judicial oversight of a youth’s continuing eligibility for the extended services:

If extended guardianship assistance has been provided to a youth pursuant to MCL 400.665, the court shall conduct an annual review hearing at least once every 12 months after the youth’s eighteenth birthday to determine that the guardianship meets the criteria under MCL 400.667.

Notice of the hearing shall be sent to the guardian and the youth as provided in MCR 3.920(D)(1). The court shall issue an order to support its determination and serve the order on the Department of Human Services, the guardian, and the youth.

According to the staff comment accompanying the proposed amendment, “Adoption of the proposed amendment will enable Michigan to receive federal Title IV-E funding for the post-18 guardianship program.”

The MSC is also proposing a change to MCR 2.603 (Default and Default Judgments).

“The proposed amendment of MCR 2.603 would clarify that a court clerk could enter a default judgment if the requested damages are less than the amount claimed in the original complaint, to reflect payments that may have been made or otherwise credited,” according to the staff comment.

The comment period for the proposals closes Aug. 1, 2012. Please refer to the link for each proposal for information to submit comments.

MSC expands Wayne e-filing project, amends MCRs

The Michigan Supreme Court has ordered a significant expansion of its e-filing project in Wayne County Circuit Court.

The project, which has been underway since Jan. 1, 2011, was originally limited to cases coded “CK” (contract disputes not otherwise coded).

Yesterday, the MSC expanded, effective immediately, the types of cases that may be included in the project:

CB (business claims)
CC (condemnation)
CD (employment discrimination)
CE (environment)
CF (forfeiture claims)
CH (housing and real estate)
CL (labor relations)
CP (antitrust, franchising, and trade regulations)
CR (corporate receivership)
CZ (general civil)
PZ (miscellaneous proceedings, except tax foreclosure cases, which are currently assigned to the chief judge’s docket)

In two months, no-fault and related automobile cases will be part of the project:

ND (property damage, auto negligence)
NE (no-fault auto insurance)
NI (personal injury auto negligence)

In other MSC orders released yesterday, the court amended MCR 7.210 and 7.212 to extend the time period in which parties may request that a court settle a record for which a transcript is not available and clarify the procedure for doing so. The amendments take effect May 1.

The court also adopted a concurrent jurisdiction plan for Saginaw County’s circuit, district and probate courts, effective Aug. 1.

The court has also extended the comment period for proposed amendments of many court rules relating to the use of electronic technology in the way courts process court records. Comments on the proposed amendments will be accepted through Sept. 1.

Western District may nix court-annexed arbitration

The Western District of Michigan is taking comments on a proposed local court rule amendment that would eliminate court-annexed arbitration as a means of alternative dispute resolution.

Administrative Order No. 12-028 explains:

[T]his Court hereby gives notice of its consideration of amendments to Local Civil Rule 16, to eliminate reference to court-annexed arbitration.

The Court’s experience with alternative means of dispute resolution in this district shows that attorneys and clients rarely resort to court-annexed arbitration, as they prefer other methods of dispute resolution, especially voluntary facilitative mediation.

After consulting with this Court’s Standing VFM/ADR Advisory Committee, the Court has concluded that court-annexed arbitration should no longer be offered as a method of alternative dispute resolution in this district.

Send comments by April 23 to:

Tracey Cordes, Clerk
United States District Court
399 Ford Federal Building
110 Michigan, N.W.
Grand Rapids, MI 49503
ecfhelp@miwd.uscourts.gov

The court will act on the matter at its June 2012 meeting.

MSC nixes change to MCR 6.302

Judges advising defendants of their potential sentences at a plea hearing need not mention that the actual sentence may be longer than stated if a defendant is a habitual offender.

The Michigan Supreme Court yesterday declined to adopt an amendment to MCR 6.302, which would have imposed the requirement.

Under the habitual offender statute, MCL 769.13, prosecutors may advise defendants after a plea hearing that they intend to seek an enhanced sentence. This could create a discrepancy between the sentencing range announced at the plea hearing and the actual sentencing range that could be imposed.

The proposed amendment would have required judges to make defendants aware of that circumstance at the plea hearing.

The MSC turned down the proposed amendment on a 5-2 vote. Justices Michael Cavanagh and Marilyn Kelly would have adopted the amendment.