MSC orders amendments to MCRs

In orders released late yesterday, the Michigan Supreme Court took the following action on amendments to the Michigan Court Rules, the Rules Concerning the State Bar of Michigan and the Rules for the Board of Law Examiners:

Amendment of MCR 5.208
Notice to Creditors, Presentment of Claims

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of MCR 5.208 removes the requirement to list a decedent’s last known address on the Notice to Creditors form.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2009-29

Amendment of MCR 6.005
Right to Assistance of Lawyer; Advice; Appointment for Indigents; Waiver; Joint Representation; Grand Jury Proceedings

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of MCR 6.005(H) revises the rule to clarify that appointed and retained defense counsel in a criminal proceeding either must file a substantive response to a prosecutor’s application for interlocutory appeal or notify the Court of Appeals that the lawyer intends not to submit a pleading.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2008-28

Amendment of Rule 3 of the Rules Concerning the State Bar of Michigan and Rule 8 of the Rules for the Board of Law Examiners
Rule 3 Membership Classes; Rule 8 Recertification

Issued: 5/17/11
Effective: 9/01/11

Staff Comment: The amendment of SBR 3(E), submitted by the State Bar of Michigan, would clarify that an out-of-state attorney who voluntarily resigned from the Michigan bar would not be required to retake the Michigan Bar Examination if the person meets the criteria for admission without examination under Rule 5 of the Rules for the Board of Law Examiners. A similar change also is made in SBR 3(F) regarding emeritus members.

Finally, Rule 8 of the Rules for the Board of Law Examiners is amended to reflect that resigned or emeritus members who seek readmission are covered under Rule 8, which allows for recertification.

The staff comment is not an authoritative construction by the Court.
ADM File No. 2009-20

Proposed Amendment of MCR 3.501
Class Actions

Issued: 5/17/11
Action: Court declined to adopt either proposal; file closed.

The proposed amendment of MCR 3.501(B) in Alternative A would have required a change in circumstances to have occurred that would allow a party to file a supplemental motion for certification of a class within 21 days of the party’s knowledge of the changed circumstances. The proposed amendment also would have allowed a party to file a motion for revocation or amendment of the certification. The court as well would have been allowed to consider supplemental motions to recertify and revoke or amend the certification. The proposed amendment of MCR 3.501(B) in Alternative B would have clarified that only one motion for certification may be brought, and that once granted, the certification may be amended or revoked.
ADM File No. 2008-18.

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But all I did was sell it

“Well, that’s not where we’re making our money.”

– Defendant Joe Swafford, explaining to a methamphetamine cook who bought large quantities of iodine from him, why so much of the other stock in Swafford’s store was out of date.

Swafford operated a store called Broadway Home and Garden, which, as it turned out, was a front for his high-volume iodine sales business. Twenty meth cooks testified at his trial that they routinely bought iodine from him to use in their recipes.

Swafford was convicted of selling more than 3,000 gallons of the stuff. He complained that his 30-year sentence was too stiff because it was based, in part, on a sentencing guidelines cross reference that treated his iodine sales as conduct involving meth manufacturing.

I wasn’t convicted of cooking meth, Swafford protested. You didn’t have to be, replied 6th Circuit Judge Jeffrey S. Sutton in United States v. Swafford. You just needed to be “involved.” And, oh brother, were you ever:

Swafford purchased large amounts of iodine from wholesalers, well beyond any amount that reasonably could be sold for legitimate purposes. He in turn sold the same volume of iodine to known methamphetamine cooks. And he accepted only cash for the iodine purchases, though he accepted credit cards or checks for other purchases.

The pattern of sales to methamphetamine cooks cements this conclusion. They came to Swafford on a regular basis, up to three times a week, to buy the iodine. …

When a police officer was in the store just as one methamphetamine cook entered, Swafford met the customer at the door, directed him to read literature about dog shampoo, then sold him iodine after the officer left.

Swafford made deliveries as well, Sutton noted.

One methamphetamine cook, Brian Storey, testified that the two had the kind of ongoing “relationship” that “[w]hen he sees me, he knows what I’m there for.” …

Storey wanted to stay out of Tennessee due to pending gun charges, so once or twice a month Swafford would meet Storey at a convenience store in neighboring Alabama, where people “very seldom ever see[ ] any police,” and Storey would hand Swafford up to $3,500 in cash for a box of 10–18 pounds of iodine out of the back of
Swafford’s truck.

The 6th Circuit had no trouble affirming Swafford’s sentence.

Swafford would have had no trouble at all had he just stuck with selling household sundries.

And keeping fresh stock on the shelves.

SCOTUS vacates MSC Confrontation Clause ruling

The U.S. Supreme Court has ruled, in Michigan v. Bryant, that the Confrontation Clause was not violated when police testified at trial that a gunshot victim identified his shooter in response to police questioning.

The Court, in a 6-2 decision, vacated the Michigan Supreme Court’s contrary conclusion (People v. Bryant).

Covington was shot outside of Bryant’s house and managed to drive himself to a gas station. Someone called the police, who arrived before the medical responders. The police asked Covington, who was in great pain and having trouble breathing, who shot him. Covington named Bryant as the shooter. Covington died a few hours later.

The police testified at Bryant’s trial that Covington identified Bryant. Bryant was convicted of second-degree murder.

The MSC reversed the conviction, ruling that Covington’s statements were inadmissible testimonial hearsay.

The U.S. Supreme Court ruled that the statements were not testimonial, and vacated the MSC’s decision.

The Court, citing Davis v. Washington, 547 U. S. 813 (2006), said the circumstances, viewed objectively, showed that

Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose … to enable police assistance to meet an on-going emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant’ s trial did not violate the Confrontation Clause.

When Covington responded to questions from the police

he was lying in a gas station parking lot bleeding from a mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive.

Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” …

For their part, the police responded to a call that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter’s location; or anything else about the crime.

They asked exactly the type of questions necessary to enable them “to meet an ongoing emergency.” …

“Nothing in Covington’s responses indicated to the police that there was no emergency or that the emergency had ended. …

The officers all arrived at different times; asked, upon arrival, what had happened; and generally did not conduct a structured interrogation.

“The informality suggests that their primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements.

The Court vacated the MSC’s decision.

We leave for the Michigan courts to decide on remand whether the statements’ admission was otherwise permitted by state hearsay rules.

MSC proposes MCR amendments, appoints new chief for 48th Circuit

In a series of orders released late yesterday, the Michigan Supreme Court has proposed amending several court rules dealing with class certification, appointed counsel in criminal cases, decedents’ estates and Headlee amendment proceedings.

The MSC also proposed rule changes concerning the recertification of attorneys who have voluntarily resigned from the State Bar of Michigan.

The Court also named Judge Margaret Bakker as the new chief judge of the 48th (Allegan County) Circuit Court.

The following summaries of the Court’s proposals are the staff comments accompanying each order. As always, the staff comments are not the Court’s authoritative constructions of the proposals. Information for submitting comments about the proposals is contained in the Court’s orders.

  • 2008-18 Proposed Amendment of MCR 3.501: The proposed amendment of MCR 3.501(B) in Alternative A would require a change in circumstances to have occurred that would allow a party to file a supplemental motion for certification of a class within 21 days of the party’s knowledge of the changed circumstances. The proposed amendment also would allow a party to file a motion for revocation or amendment of the certification. The court as well would be allowed to consider supplemental motions to recertify and revoke or amend the certification. The proposed amendment of MCR 3.501(B) in Alternative B would clarify that only one motion for certification may be brought, and that once granted, the certification may be amended or revoked. ADM File No. 2008-18.
  • Proposed Amendment of MCR 6.005: The proposed amendment would revise MCR 6.005(H) to clarify that appointed defense counsel in a criminal proceeding either must file a substantive response to a prosecutor’s application for interlocutory appeal or notify the Court of Appeals that the lawyer intends not to submit a pleading. ADM File No. 2008-28.
  • Proposed Amendment of MCR 5.208 of the Michigan Court Rules: This proposed amendment of MCR 5.208(A) would remove the requirement to list a decedent’s last known address on the Notice to Creditors form. The proposed revision has been published for comment because of a concern that providing such information and publishing it in a newspaper might identify a location where a surviving spouse may be living and may unnecessarily place such a person at risk of harm. ADM File No. 2009-29.
  • Proposed Amendment of MCR 2.112, 7.206, and 7.213: The proposed amendments of MCR 2.112 and MCR 7.206 were submitted by the Legislative Commission on Statutory Mandates as a way to increase the efficiency with which Headlee actions are considered and disposed in Michigan courts, and to regularize the procedures that relate to Headlee proceedings. The proposed amendment of MCR 7.213 was added to the proposal as a corollary to proposed MCR 7.206 to clarify the prioritization of cases. ADM File No. 2010-05.
  • Proposed Amendment of Rule 3 of the Rules Concerning the State Bar of Michigan and Rule 8 of the Rules for the Board of Law Examiners: The proposed amendment of SBR 3(E), submitted by the State Bar of Michigan, would clarify that an out-of-state attorney who voluntarily resigned from the Michigan bar would not be required to retake the Michigan Bar Examination if the person meets the criteria for admission without examination under Rule 5 of the Rules for the Board of Law Examiners. A similar change also would be made in SBR 3(F) regarding emeritus members. Finally, Rule 8 of the Rules for the Board of Law Examiners would be amended to reflect that resigned or emeritus members who seek readmission are covered under Rule 8, which allows for recertification. ADM File No. 2009-20.
  • Appointment of Chief Judge of the 48th Circuit Court: Effective January 1, 2011, the Honorable Margaret Bakker is appointed chief judge of the 48th Circuit Court for a term ending December 31, 2011. ADM File No. 2010-01.

Michigan Medical Marihuana Act: Perfectly unclear

The rulings by Court of Appeals Judges Patrick M. Meter and Donald S. Owens in People v. Redden are clear enough:

  • defendants charged with manufacturing marijuana can invoke the Michigan Medical Marihuana Act as an affirmative defense even though they weren’t registered under the act when the police raided their home.
  • the prosecutor can take them to trial and try to prove that their patient relationships with the doctor who authorized their marijuana use were too tenuous to be bona fide, they possessed an unreasonable amount of marijuana and that their medical conditions didn’t warrant the doctor’s authorization.

“I concur,” said Judge Peter D. O’Connell.

And most folks would concur with what O’Connell went on to say: the MMMA is perfectly unclear.

O’Connell notes that the law is “inartfully drafted,” creates “much confusion,” is internally contradictory, and also contradicts the state Public Health Code and federal drug laws.

The police, prosecutors, defense attorneys and trial judge wrestling with the MMMA, through no fault of their own, don’t know which end is up.

And “healthy recreational marijuana users incorrectly view the MMMA as a de facto legalization of the drug, seemingly unconcerned that marijuana use remains illegal under both state and federal law.”

O’Connell’s 30-page concurrence exhaustively dissects the MMMA and makes a cogent case for legislative and administrative officials to issue a comprehensive set of administrative rules to implement the act.

It’s required reading for anyone who has an interest, academic or otherwise, in issues arising under the MMMA.

In their opinions

“[I]f there ever was an area in which … disinfectant is the most needed, it is in the conducting of elections.”

Court of Appeals Judge William C. Whitbeck, writing for the majority in Practical Political Consulting v. Land.

“[M]any voters may wish to avoid the perceived annoyance and hassle of receiving large amounts of junk mail and solicitations that would result from the disclosure of their particular political convictions.”

Court of Appeals Judge Kirsten Frank Kelly, dissenting.

Whitbeck and Kelly were discussing the competing rationales for and against Freedom of Information Act disclosure of voters’ names, addresses and the political parties’ ballot the voters requested in the 2008 presidential primary.

Joined by Judge Stephen L. Borrello, Whitbeck prevailed on his view that disclosure was necessary to make sure that election officials had complied with a now-unconstitutional statute.

The law required the Secretary of State and other election officials to collect voter information in the 2008 primary and supply it exclusively to the state’s two major political parties.

A political consulting company made a FOIA request for the same information and prevailed in last week’s split-panel decision.

***
“[A] defendant’s perjury at trial is not exceptional. If it were, ‘a departure might be warranted every time a defendant testified and was found guilty.'”

Court of Appeals Judges Joel P. Hoekstra, Cynthia Diana Stephens and Michael J. Kelly, in the unpublished per curiam decision of People v. Baker, quoting People v. Kahley, 277 Mich. App. 182 (2007).

The panel explained that a defendant’s admitted perjury is not reason enough to exceed the sentencing guidelines.

However, in this case, the trial court found that the defendant was a pedophile. The Baker panel said that was a great reason to ignore the guideline’s 9- to 15-year recommendation instead impose a 25- to 75-year sentence.

More lead time for presentence reports

The Michigan Supreme Court has amended MCR 6.425 and 6.610 to require courts to give defense attorneys and prosecutors presentence reports at least two business days ahead of sentencing.

A court’s failure to timely provide the report entitles either party to an adjournment to prepare any necessary corrections, additions or deletions.

The amendments also provide a measure of confidentiality for victims and witnesses.

The presentence reports shall not include the following information about any victim or witness: home address, home telephone number, work address, or work telephone number, unless an address is used to identify the place of the crime.

A staff comment to the amendments states that a court must

instruct those who review the report that they are precluded from making a copy of the report and must return their copy to the court before or at the defendant’s sentencing.

The confidentiality provision is based on MCL 791.229.

The amendments take effect May 1.