MSC appoints chief judge, issues rule changes and proposals

In recent orders released by the Michigan Supreme Court, the Court:

The Court amended MCR 6.001 and adopted new MCR 6.202. According to the staff comment accompanying the order, “The revision of MCR 6.001 provides a cross reference to MCR 6.202, a new rule adopted in this order. MCR 6.202 incorporates a ‘notice and demand’ procedure into the Michigan Court Rules with regard to forensic reports. Under the rule, a party could seek to admit a forensic report as evidence if notice requirements are met and no objection is filed. If a party objects to admission of the report, the analyst would be required to testify. The staff comment is not an authoritative construction by the Court.”

The Court approved LCR 3.204 of the Wayne County Circuit Court. According to the staff comment accompanying the order, “These local court rule provisions of the 3rd Circuit Court have been adopted in an effort to better process cases filed with a case-type suffix of ‘DC.’ Subrule (A) requires the use of uniform Child Custody Cover Sheets when an action is filed in a child custody dispute. Subrule (B) requires the use of the most recent local Court Uniform Child Custody Jurisdiction and Enforcement Act forms or the equivalent most recent State Court Administrative Office forms in an action seeking registration, enforcement, or modification of another state’s or a foreign country’s child custody determination. The staff comment is not an authoritative construction by the Court.”

The Court proposed amendments to three Michigan Court Rules.

  • A proposed amendment of MCR 3.616, according to the staff comment, “would provide that the files of a young adult foster care youth are confidential, but may be accessed by the youth and by DHS. The proposal further would eliminate the requirement that the petition and order be served on the previous court in which the youth’s child protection case was disposed because the case is no longer active. This order also corrects numbering of subsection (F)(2)(i)-(iv) so that the subsections are labeled with letters (a)-(c). The staff comment is not an authoritative construction by the Court.”
  • A proposed amendment of MCR 3.925 “would clarify rules and procedures for retention and destruction of various records in juvenile cases,” according to the non-authoritative staff comment.
  • The proposed amendment of MCR 3.976, according the staff comment, “would require a court to indicate on the record the reason that no petition for termination of parental rights need be filed, thus providing a record to future auditors who review the state’s foster care program that the court explicitly chose the option. The staff comment is not an authoritative construction by the Court.”

The Court also extended the public comment period for proposed MCR 1.111 and MCR 8.127. Interested parties have until Nov. 1 to comment on two separate proposed rules that would create a certification and discipline program for court interpreters.

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Judicial officers could preside by video under MSC proposal

The Wizard of Oz

We’re fairly certain it won’t look like this.

Judicial officers could hold court via video conferencing equipment under a proposed Michigan Supreme Court administrative order.

The proposal would allow judicial officers, under certain circumstances, to preside from a remote location without the parties’ consent.

Remote participation by judicial officers shall be limited to the following specific situations:

1) judicial assignments;

2) circuits and districts that are comprised of more than one county and would require a judicial officer to travel to a different courthouse within the circuit or district;

3) district court districts that have multiple court locations in which a judicial officer would have to travel to a different courthouse within the district;

4) a multiple district plan in which a district court magistrate would have to travel to a different district.

The judicial officer who presides remotely must be physically present in a courthouse located within his or her judicial circuit, district, or multiple district area.

Under the proposed administrative order, multicounty circuit and district courts seeking permission to have judicial officers preside via video equipment must submit a proposed local court rule for the State Court Administrator’s approval. The State Court Administrative Office will monitor video equipment use and let the MSC know how things are working out.

The MSC is seeking comments about the proposal through Nov. 1. Refer to the proposal for more information about submitting comments.

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.

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.

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 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.