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.

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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.

MSC adopts new foster care court rule

The Michigan Supreme Court has adopted MCR 3.616 to implement the judicial action requirements of 2011 PA 225, the Young Adult Voluntary Foster Care Act, MCL 400.641 et seq.

Yesterday’s adoption of the new court rule makes the Department of Human Services eligible for federal funding of its new continuing voluntary foster care program for youth.

Both the new court rule and the DHS program take effect April 1. The Court has opened a comment period for the new rule, which will allow the Court to consider amending the rule based on comments received.

Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by May 1, 2012, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. Refer to ADM File No. 2012-05.

In other orders released yesterday, the Court:

  • amended MCR 6.005 to clarify that trial counsel is required to make a defendant’s file available to an appellate lawyer, and is required to retain the file for at least five years after disposition of the case in the trial court. This file was prompted by reports of appellate counsel having difficulty obtaining trial materials (especially video or audio materials that were not transcribed as part of the transcript). The five-year period mirrors the five-year retention period contained in MRPC 1.15(b)(2).
  • amended MCR 3.211 to eliminate the requirement that the Supreme Court approve changes to the Uniform Support Order forms. Without explicit approval required by the Supreme Court, the forms will be updated like other forms that are revised on a regular basis within the State Court Administrative Office.
  • proposed amendments to MCR 5.801, 7.102, 7.103, 7.108 and 7.109. The proposed changes would require that all probate court appeals be heard by the Michigan Court of Appeals instead of some orders being appealed to the Court of Appeals and other orders being appealed to the circuit court. The amendments are backed by the State Bar of Michigan Probate and Estate Planning Section in conjunction with the Michigan Judges Association, Michigan Probate Judges Association, and the Michigan Court of Appeals. The Court is accepting comments on the proposed changes. Send comments to the Supreme Court Clerk in writing or electronically by May 1, 2012, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. Refer to ADM File No. 2011-30.
  • appointed Denise M. Kizy to the Court Reporting and Recording Board of Review for the unexpired portion of a term ending on March 31, 2013.

Western District proposes local court amendments

Beginning June 1, 2012, the U.S. District Court for the Western District of Michigan will require electronic filing of civil complaints under a proposed amendment to the court’s local rules.

W.D. Mich. LCivR 5.7(c) and (d)(i) currently allow for, but do not require, electronic filing of complaints and other initial pleadings. According to Administrative Order 11-126:

Over 70% of initial pleadings are now filed electronically, and only a few attorneys are not making use of electronic filing of complaints.

The Court has concluded that electronic filing of complaints should be made mandatory for all attorneys, for cases filed on and after April 1, 2012.

Exceptions will be made on a showing of hardship or other good cause and for cases that are sealed in their entirety, such as qui tam actions.

Unrepresented litigants will continue to file their complaints — and all other documents — on paper.

Under the proposed changes, W.D. Mich. LCrimR 9 would be repealed.

Local Criminal Rule 9.1 (requiring delivery of original arrest warrants to the Marshal) is hereby REPEALED. The rule is no longer necessary, in light of W.D. Mich. LCrimR 49.10(h)(i) which allows the Court to issue and to transmit warrants in electronic form.

Under proposed W.D. Mich LCivR 5.7(d)(ii)(F) and (d)(vii), a 5 MB filing restriction would be lifted.

The Local Rules presently prohibit the electronic filing of any document over 5 MB in size.

Technological changes now allow the filer to divide such oversized documents into parts, each smaller than 5MB, for purposes of electronic filing.

The Local Criminal and Civil Rules are therefore amended to remove this restriction and to require appropriate division of oversized documents.

The Western District has tenatively approved the amendments but is seeking comments on the proposed changes.

All comments should be in writing and must be received by the Court no later than January 27, 2012. Comments should be addressed to:

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

or submitted electronically to ecfhelp@miwd.uscourts.gov. The Court will consider all comments at its March 2012 meeting before promulgating a final version of the proposed rules.

Eastern District Bankruptcy Court amends local rules

A slew of amendments to the Federal Rules of Bankruptcy Procedure, and two brand-new rules, take effect Dec. 1, 2011.

As a result, the Local Court Rules of the Bankruptcy Court for the Eastern District of Michigan are a bit out of kilter and have been amended on an interim basis to conform with the new federal changes.

Local Bankruptcy Rule 2015-5(a) and Local Bankruptcy Rule 3001-2, conflict with new F.R.Bankr.P. 3002.1. The court has issued Administrative Order 11-08, which also takes effect Dec. 1, to bring its local rules into compliance.

There are some new forms to deal with as well.

A copy of the new rules, the amended rules and extensive commentary on their formulation was issued earlier this year by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States.

Proposed MCR amendment: Exhibits would stay with trial court

Trial courts would become the repositories for all trial exhibits, whether admitted into evidence or not, under a proposed amendment to MCR 7.210.

MCR 7.210(C)’s current language would be struck and replaced with the following:

The trial court or tribunal shall retain originals or legible copies of all documentary, photographic, video, or audio exhibits offered in evidence, whether admitted or not.

If no claim of appeal has been filed upon expiration of the time for doing so, the trial court or tribunal may return such exhibits to the parties who offered them.

By stipulation of the parties or order of the trial court or tribunal, exhibits in other forms may be returned to the parties who offered them.

Appellants are entitled to access the exhibits or proposed exhibits that are not in documentary, photograph, video, or audio form upon a showing of good cause and the filing of a motion seeking such access within the time for filing appellant’s brief on appeal.

When the record is returned to the trial court or tribunal, the trial court or tribunal clerk shall return the exhibits to the parties who filed them.

The amendment was proposed by James Neuhard, former director of the State Appellate Defender Office.

See ADM File No. 2010-25 for details and information about submitting comments on the proposed rule change.