House Judiciary Committee meets to consider crime bills

The House Judiciary Committee meets Sept. 27, 2012 to consider a full plate of crime legislation and other matters. The 10 a.m. meeting is in Room 326 of the House Office Building in Lansing.

Listed below are the bills, sponsor and a brief description of the legislation.

• HB 5789 (Rep. LaFontaine) Civil procedure; civil actions; property on which animal fighting is conducted; declare to be a nuisance.
• HB 5692 (Rep. Walsh) Crimes; arson; certain arson violations; revise elements of crimes and provide for increased penalties.
• HB 5693 (Rep. Cotter) Crimes; arson; certain arson violations; revise elements of crimes and provide for increased penalties.
• HB 5694 (Rep. Graves) Crimes; arson; certain arson violations; revise elements of crimes and provide for increased penalties.
• HB 5695 (Rep. Oakes) Criminal procedure; sentencing guidelines; sentencing guidelines for certain arson violations; enact.
• HB 5076 (Rep. Pettalia) Local government; budgets; challenging an approved budget; clarify.
• HB 5664 (Rep. Somerville) Criminal procedure; sentencing guidelines; alcohol content for individuals operating a motor vehicle under the influence of alcoholic liquor in the code of criminal procedure; maintain at 0.08 without reversion to 0.10.
• HB 5665 (Rep. LaFontaine) Crimes; intoxication or impairment; alcohol content for individuals operating a vehicle under the influence of alcoholic liquor; maintain at 0.08 without reversion to 0.10.
• HB 5600 (Rep. Haveman) Juveniles; criminal procedure; set-aside convictions for juvenile adjudications; clarify eligibility.
• HB 4998 (Rep. Heise) Civil procedure; evictions; court procedures; make miscellaneous revisions.
• HB 4263 (Rep. O’Brien) Housing; landlord and tenants; requirement for lawful reentry by landlord; modify.

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.

Active military members could delegate custody or visitation

Service members could delegate their parental visitation or guardianship rights if called to active duty under a proposed amendment of the Child Custody Act.

The House Judiciary Committee will hear testimony tomorrow on House Bill 5163.

In addition to the delegation provision, the bill directs that a service member’s temporary absence due to military obligations cannot be considered as a factor in a court’s decision to grant or deny  custody and visitation petitions or to change existing custody or visitation arrangements.

The bill also includes provisions for electronic participation in hearings when necessary:

Upon a motion by a parent who has been called to active military duty, provided that reasonable advance notice is given and good cause is shown, the court shall allow that parent to present testimony and evidence by electronic means with respect to matters being decided under this section when the parent’s deployment has a material effect on his or her ability to appear in person at a regularly scheduled hearing. As used in this subsection, “electronic means” includes communication by telephone or video conference.

The bill was introduced by Rep. Kurt Damrow (R – Elkton).

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.

Defendant faces computer-snooping charges

Leon Walker, who accessed his estranged wife’s email account without permission and later gained unauthorized access to computerized police records, see People v. Walker,  can be tried on charges arising from those incidents, the Michigan Supreme Court has ruled in a 6-1 decision.

The Court of Appeals, in the email incident, held that defendant was properly bound over for trial under MCL 752.795:

A person shall not intentionally and without authorization or by exceeding valid authorization … [a]ccess or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete, or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network.

Walker worked for Oakland County’s information technology department. After he was charged, his superiors told him he could no longer access police and court databases. Despite the directive, Walker, with the unwitting help of two other Oakland County employees, gained access to a police records database, resulting in a second charge under MCL 752.795.

The COA ruled that Walker was properly bound over on that charge as well.

The MSC agreed in both instances but three justices expressed concern that the statute paints with a very broad brush.

In her dissent, Justice Marilyn Kelly said that Walker raised some arguments that are “worthy” of review:

Defendant argues that the language of MCL 752.795 is ambiguous. Also, he insists that the statute was not intended to criminalize a person’s reading of his or her spouse’s e-mails. He provides examples of innocuous conduct for which a person could be criminally prosecuted under the prosecution’s reading of the statute.

[Footnote 4] For example, defendant argues that a parent could be convicted for monitoring his or her child’s Internet and e-mail usage. He argues that a person could be convicted for using the calculator or word-processing programs on his or her spouse’s computer without permission. [end footnote]

Defendant also raises a significant question about whether Internet-based e-mail accounts fit within the statute’s reference to “a computer program, computer, computer system, or computer network.” …

I note that the Legislature is considering a bill [HB 4532] introduced specifically because of this prosecution that would exempt defendant’s conduct from the scope of MCL 752.795.

Given that this Court has declined to consider the issues involved here, the Legislature would do well to consider whether it intends that MCL 752.795 subject the behavior involved here to criminal penalties.

Justice Stephen Markman, in a concurrence joined by Chief Justice Robert Young Jr., said that Walker’s conduct “unquestionably” fell within MCL 752.795 but wrote “separately to urge the Legislature to consider whether it intends to criminalize the full range of conduct to which the statute potentially extends.”

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.

Bad policy or bad math?

The Detroit Free Press has a good opinion piece on the constitutional spat between Lansing Democrats and Republicans who have taken their battle to the Court of Appeals over immediate effect of some controversial legislation.

The Freep takes Republicans to task for getting a pretty basic elementary school algebra problem wrong: The state constitution requires a two-thirds vote for a bill to get immediate effect. And it’s pretty clear and plain language that spells out the requirement.

But the party has a 63-47 majority, which has been deemed good enough on several occasions.

It will be interesting to see how it all plays out. You can read the story here.

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.

Prosecutors can bypass circuit judges to get more help

Prosecutors can appoint assistant prosecuting attorneys without circuit court approval under legislation signed by Governor Rick Snyder.

2012 PA 73 eliminates an almost century-old requirement that a prosecutor must first obtain the circuit court judge’s consent before appointing assistants.

Snyder also signed related legislation, 2012 PA 72, which eliminates the judicial consent requirement when a prosecutor obtains assistance for a felony trial, or appoints an assistant to perform the prosecutor’s duties “during a period of disability.”

State Sen. Darwin Booher (R-Evart) sponsored the two-bill package, which sailed through both houses of the Legislature on unanimous votes.