Indigent defense bill clears House Judiciary Committee

A bill that addresses sweeping problems in the state’s indigent defense system has cleared the House Judiciary Committee.

HB 5804, would establish the Michigan Indigent Defense Commission Act and create a comprehensive approach to providing constitutionally effective assistance of counsel to indigent criminal defendants.

The legislation creates the Michigan Indigent Defense Commission (MIDC). The 14-member board would consist of 13 individuals appointed by the governor from nominations submitted by legislative leaders, the State Bar of Michigan, the Criminal Defense Attorney Association of Michigan, bar associations representing minority interests, judges’ associations and the chief justice of the Michigan Supreme Court, who would also serve as the commission’s 14th member.

Among the bill’s key features:

• Delivery of indigent criminal trial defense services (includes selection, funding, and payment of defense counsel) independent of the judiciary yet ensuring that judges are permitted and encouraged to contribute information and advice concerning the delivery of indigent criminal trial defense services.
• Active participation of other members of the Bar with an indigent criminal defender office when indigent criminal trial defense services caseloads are sufficiently high.
• Screening indigent adults for eligibility and assigning counsel as soon as feasible after formal charges are filed.

HB 5804 aims to:

• provide defense counsel with sufficient time and space where confidentiality is safeguarded for meetings with clients; control workload to permit high-quality representation;
• match the defense counsel’s ability, training, and experience with the nature and complexity of cases to which he or she is appointed;
• have the same defense counsel continuously represent the client, with some exceptions, at every court appearance throughout the pendency of the case;
• provide with and require defense counsel to attend relevant continuing legal education; and
• [provide for] the systematical review of defense counsel for quality and efficiency of representation according to MIDC standards.

The measure now moves to the full House for further consideration.

Vehicle Code changes on House Judiciary Committee agenda

The House Judiciary Committee meets on Wednesday, Sept. 19, to take testimony on proposed changes to the Michigan Vehicle Code.

Update: The bill cleared the committee on Wednesday and now goes to the full House for consideration.

SB 809 would amend the code to do the following:

• Prohibit a Secretary of State (SOS) hearing officer from issuing an unrestricted license to a person who received a restricted license following drunk driving violations, until the person met all requirements for a driver license (or other conditions were met).
• Require the SOS to postpone considering issuance of an unrestricted license to a person who completed a sobriety court program, for three months for each “minor violation” during an ignition interlock monitoring period.
• Require a restricted license to be suspended, revoked, or denied if the person who was issued the license, with a requirement for an ignition interlock device, committed a “major violation.”
• Require a mandatory 120-day license suspension period to be served consecutively to a 60-day suspension period imposed for two serious traffic violations within 36 months, and revise the definition of “serious traffic violation.”
• Delete a requirement of a one- or three-year license suspension for a six-point violation while operating a commercial motor vehicle.
• Increase the length of a license suspension for operating a commercial vehicle during certain out-of-service periods.

– SB 809 Analysis from the Senate Fiscal Agency

The committee meets in Room 521 House Office Building, Lansing at 9 a.m.

Rule governing bar admission by motion amended

Lawyers seeking admission to the State Bar of Michigan without taking the Michigan bar examination will no longer be required to state a good-faith intention to maintain an office in the state under a rule change approved by the Michigan Supreme Court.

The Michigan Supreme Court, with one partial dissent, has amended Rule 5 of the Rules for the Board of Law Examiners to eliminate the requirement effective Jan. 1, 2013.

However, there’s a possible snag. The rule amendment is at odds with MCL 600.946, which has not been amended to mirror the newly amended rule.

That’s why Janet Welch, the state bar’s executive director, had asked the MSC to adopted the Jan. 1, 2013, effective date, “to allow the Legislature to act on a corresponding statutory change consistent with the proposed amendment.” Welch submitted the request on behalf of the bar’s Executive Committee.

Chief Justice Robert Young Jr. complained that the MSC majority acted too quickly.

I concur with amending Rule 5 of the Rules for the Board of Law Examiners to eliminate the requirement that an application for admission without examination assert the intent to maintain an office in Michigan for the practice of law.

However, I dissent from giving this change effect prior to the amendment of MCL 600.946, which provides the identical requirement. Therefore, until MCL 600.946 is amended, the adopted rule change will not solve the problem it is designed to cure and amounts to no more than a gesture by this Court.

Young didn’t identify the “problem” to which he referred.

But Welch, in her comments to the MSC, noted that at least one other jurisdiction has found an in-state office requirement unconstitutional, and that the U.S. Supreme Court has spoken on the matter.

We believe that proposed change is supported by federal case law, In Fraizer v. Heebe,  a 1987 U.S. Supreme Court case, [the Court] struck down a U.S, District Court local rule requiring either residency in the state where the court sat or the maintenance of an office in the state without reaching any of the constitutional questions, by concluding that the residency requirement was “unnecessary and arbitrarily discriminates against out-of-state lawyers” and that the in-state office requirement is “unnecessary and irrational.”

In September 2011, New York’s in-state office requirement was ruled unconstitutional in Schoenefeld v. New York. The opinion held that the rule was a violation of the privileges and immunities clause.

So, the MSC has amended a rule governing admission to the bar, presumably to eliminate a provision of questionable legality. Young has gone out of his way to opine that the MSC’s action doesn’t mean a thing until the Legislature brings the statute into line.

In the meantime, the Legislature is preparing for its summer break, so if anything is going to happen, it won’t be until later in the year.

Lest you think this is an academic point, the Michigan Board of Law Examiners gets more than 100 applications a year for admission under Rule 5.

If the Legislature doesn’t act until after Jan. 1, or decides to simply ignore the matter, the bar examiners will have an interesting choice to make when processing Rule 5 applications in 2013 and beyond.

No-fault mini-tort limit increased

At-fault drivers face increased liability in small claims court for damages not covered by the other driver’s no-fault insurance policy.

The no-fault act’s so-called mini-tort limit will increase from $500 to $1,000 under PA 158 of 2012, MCL 500. 3135(3)(e), signed into law yesterday by Gov. Rick Snyder.

The law also provides that mini-tort damages cannot be assessed if the damaged vehicle was being operated without the required insurance coverage.

Under MCL 500.3135(4), in a mini-tort action for damages:

(a) Damages shall be assessed on the basis of comparative fault, except that damages shall not be assessed in favor of a party who is more than 50% at fault.

(b) Liability is not a component of residual liability, as prescribed in section 3131, for which maintenance of security is required by this act.

(c) The action shall be commenced, whenever legally possible, in the small claims division of the district court or the municipal court. If the defendant or plaintiff removes the action to a higher court and does not prevail, the judge may assess costs.

(d) A decision of the court is not res judicata in any proceeding to determine any other liability arising from the same circumstances that gave rise to the action.

(e) Damages shall not be assessed if the damaged motor vehicle was being operated at the time of the damage without the security required by section 3101.

Dems gather today to introduce patient safety bills

House and Senate Democrats led by Sen. Bert Johnson (D- Detroit) and Rep. Jeff Irwin (D-Ann Arbor) will host a press conference at noon today to discuss the details of a new package of Patient Safety bills.

The bills will be introduced hours before the Senate Insurance Committee convenes to discuss a package of Republican-sponsored bills that would reform medical malpractice by giving physicians greater immunity if they are acting in the best interest of the patient and using professional judgment.

This Democrats’ legislation seeks to increase penalties for doctors who commit certain offenses such as practicing while under the influence of drugs or alcohol, acting with the intent to harm a patient, or intentionally prescribing unnecessary medication. The bills would also create new reporting requirements and administrative disciplinary action within the Department of Community Health to better monitor doctors who are proven to be bad actors. The lawmakers will be joined by individuals who are victims of medical malpractice.

The conference will be noon today in Room 403 of the Capitol Building in Lansing.

Bill would increase small claims court jurisdiction

The House Judiciary Committee is considering a bill that ups the ante in small claims court from $3,000 to $8,000.

In its original form, SB 269, introduced by Sen. Tonya Schuitmaker (R-Lawton), gave small claims courts jurisdiction to hear cases where up to $10,000 was at stake.

It was not smooth sailing in the Senate.

The Senate Judiciary Committee whittled the jurisdictional limit down to $8,000. The Senate defeated proposals to further lower the amount to $5,000 or to create a two-tiered limit — $8,000 where a credit union or financial institution was involved and $3,000 for everyone else.

The House Judiciary Committee will take up the bill tomorrow.

Legislative analyses from the House and Senate Fiscal Agencies reveal the bill’s pros and cons.

The legislative analysts say that increasing the jurisdictional amount could result in more cases being filed as small claims, which would give district courts the capacity to handle larger claims and more complex cases. Financial institutions and businesses are looking to save on litigation costs when dealing with defaulted loans, overdrawn accounts and fraud.

The downside, according to legislative analysts, is that small claims court staff could wind up with a lot more to do. As it stands, court workers frequently find themselves explaining many things to folks who have never been to court before. More small claims cases could compound the problem. And, unlike the general civil division courts, where parties handle their own service of process, small claims courts are responsible for delivering the goods to defendants.

Opponents also claim the proposed increase is excessive. The Senate Fiscal Agency analysis summarizes the argument this way:

In 1999, it made sense to raise the limit from $1,750 to $3,000 because the district court’s jurisdictional ceiling had been increased from $10,000 to $25,000 a year earlier. That factor is not present now.

Nevertheless, it would be appropriate to adjust the jurisdiction of the small claims court based on inflation, since the current limit has been in place for nearly 12 years. An inflation-based adjustment would bring the limit to approximately $3,800. Also, providing for an annual inflationary adjustment would enable the court’s jurisdiction to keep pace with cost increases.

Expect a big debate about small claims in the House.

Will conservatives resolve to make government leaner and meaner in 2012?

Lansing Republicans are toasting the close of what was certainly a banner year for them. Lawmakers were able to blast through a wish list that had eluded them for years.

They’re high-fiving each other for having made reforms to local and municipal revenue sharing, business tax cuts, reforming K-12 education and teacher tenure, cutting the number of weeks the unemployed can collect benefits and limiting the number of months families can receive public assistance. They’ve made what some call Draconian changes to the state’s Workers’ Compensation system, and passed legislation to tax pensions.

It was a long list of pent-up wishes conservatives had wanted for years — even decades. What in the world is left for them to do?

Well, the conservative Mackinac Center’s “Michigan Capital Confidential” newsletter has a few ideas.

In today’s edition, the Center ticks off the items still left undone. Many of the initiatives have enough steam to be reintroduced next year. Among them: the repeal of prevailing wage laws, and what the Center calls “stealth unionization.” The “right to teach” bill was also tabled. It would have stopped school districts from making agreements with the Michigan Education Association to require union membership as a condition of employment. The Center suggests that while there was some support for the ideology, the bill was a poorly written attempt at political payback, and may not have enough legs to be re-introduced in 2012.

Certainly for the upcoming year, workers and employers alike will be waiting to see whose resolutions stick, and whose fall by the wayside like a “forgotten by April” gym membership.

HB 4651: Judges would review most foreclosures

Hot on the heels of yesterday’s State Court Administrative Office recommendation to cut 49 trial and appellate judgeships comes news of legislation that would require judicial review of most foreclosures on residential properties.

The Lansing State Journal reports that HB 4651

introduced in May by [Rep. Jim] Ananich, a Flint Democrat, and seven other Democratic state representatives, would require a judge to review all foreclosures on owner-occupied residential properties.

Ananich and Ingham County Register of Deeds Curtis Hertel Jr. are touting the legislation. Said Hertel, as quoted by The LSJ:

We need something to make sure banks play by the rules in these foreclosures and also put in an incentive to give people reasonable modifications.

He acknowledged that the bill, if enacted, would bring additional pressure to the court system.

AG: No marijuana growers’ cooperatives

Michigan Attorney General Bill Schuette has taken a narrow view of how marijuana can be legally cultivated under the Michigan Medical Marihuana Act.

The act authorizes licensed caregivers to grow up to 12 plants for each of five patients.

Schuette has issued Opinion 7259, which states:

The Michigan Medical Marihuana Act, Initiated Law 1 of 2008, MCL 333.26421 et seq, prohibits the joint cooperative cultivation or sharing of marihuana plants because each patient’s plants must be grown and maintained in a separate enclosed, locked facility that is only accessible to the registered patient or the patient’s registered primary caregiver.

Schuette’s opinion was issued in connection with Rep. John Walsh’s (R-Livonia) announcement of a package of bills “that will ensure public safety by clarifying the many ambiguities in the Medical Marihuana Act.”

All of this comes on the heels of the Michigan Supreme Court’s decision to take up several issues regarding affirmative defenses provided by the MMA. See “MSC will hear medical marijuana appeals.”

Of note in the Legislature: Divorce property divisions and COA filing fees

Statutory presumption for marital property splits proposed: Property acquired during a marriage, regardless of how the title is held, would be presumed to be marital property under HB 4672 and HB 4673.

The presumption could be rebutted by evidence to the contrary. The presumption would apply to real property and stocks.

HB 4673 also contains a list of factors courts must consider when untangling commingled marital and nonmarital assets, and another list of factors to determine how marital property should be divided.

The bills are currently in the House Judiciary Committee.

Bill would nix lower COA filing fees: Two statutory motion fees in the Court of Appeals would remain intact under HB 4731. The standard $100 motion fee and $200 fee for expedited appeals, see MCL 600.321, would have dropped to $75 and $150, respectively, on Oct. 1, 2012.

The bill is in the House Appropriations Committee. A hearing is set for June 22.