Pelton reappointed to law examiners board

Eric Pelton of Kienbaum Opperwall Hardy & Pelton PLC, has been reappointed to the State Board of Law Examiners for a five-year term.

The board certifies attorneys for admission to the bar in this state by examination (Rule 2) or, on the basis of admission in another jurisdiction, without examination (Rule 5). The board also recertifies attorneys following periods of inactivity in practice (Rule 8). See generally, Rules for the Board of Law Examiners.

Pelton was renominated by the Michigan Supreme Court. Governor Rick Snyder announced the reappointment earlier this week.

Pelton served on the Michigan Board of State Canvassers from 2002-2005. He currently serves as a member of the labor law section of the State Bar of Michigan, a fellow for the Michigan State Bar Foundation, an executive committee member for the Federalist Society and as a member of the Oakland County Bar Foundation board of trustees.

He holds a bachelor’s degree from Michigan State University, a master’s degree in public administration from the Maxwell School at Syracuse University and a law degree from Syracuse University.

Judicial officers could preside by video under MSC proposal

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.

MSC seeks comment on proposed judicial performance measures

The Michigan Supreme Court is interested in measuring trial court performance and providing public access to the reports.

Proposed Administrative Order No. 2012-XX would authorize the State Court Administrative Office (SCAO) to create standardized methods for evaluating trial court performance.

The proposal is broad in concept but short on details.

The concept:

Performance measurement is a critical means to assess the services provided to the public and the processes used to deliver those services. Performance measurement can assist in assessing and recognizing areas within courts that are working well, and those that require attention and improvement.

Trial court performance measures are not a new concept. The National Center for State Courts first issued the 10 CourTools in 2005; in the 1990s, SCAO formed a task force, including judges and court administrators, to study how to measure a court’s performance. In 2009, the state court administrator convened the Trial Court Performance Measures Committee, which piloted performance measures and offered recommendations. The committee stressed that all trial courts should embrace performance measures as an opportunity to provide high-quality public service in the most efficient way. Further, because transparency and accountability are integral elements of an efficient and effective judiciary, SCAO’s standardized statewide performance measure reports should be readily available to the public.

How might all of this work? That’s largely being left to the SCAO to figure out:

A. The State Court Administrative Office is directed to:

1. Develop a plan for implementation of performance measures in all trial courts.

2. Assist trial courts in implementing and posting performance measures.

3. In conjunction with the Trial Court Performance Measures Committee, assess and report on the effectiveness of the performance measures and modify the measures as needed.

B. Trial courts are directed to:

1. Comply with the trial court performance measures plan developed by the State Court Administrative Office.

2. Report performance measure information to the State Court Administrative Office.

C. SCAO’s standardized statewide performance measure reports shall be made available to the public on the Internet.

Got some thoughts about this? Refer to the proposal for information on submitting comments. The comment period closes Nov. 1.

MSC: The last word on one-year-back and sewage liability

It’s the end of the appellate road for the parties in two Michigan Supreme Court cases decided last month.

The MSC, on a 4-3 vote, with Justices Michael Cavanagh, Marilyn Kelly and Diane Hathaway dissenting, has denied rehearing (Rehearing No. 582) of Joseph v. Auto Club Ins. Ass’n.

Joseph was the latest answer to the frequently asked question of whether the minority/insanity tolling provision in MCL 600.5851(1) tolls the no-fault act’s damage-limiting one-year-back rule, MCL 500.3145(1).

It doesn’t, a divided MSC ruled last month.

Joseph overruled University of Michigan Regents v. Titan Ins. Co., a 2010 decision in which a divided MSC ruled that the minority/insanity tolling provision did indeed toll the one-year-back rule.

Regents, in turn, had overruled Cameron v. Auto Club Ins. Co., the 2006 MSC case that the Joseph Court reinstated last month.

The Court has also put to bed an issue that produced decidedly less appellate fireworks by unanimously denying rehearing (Rehearing No. 584) in Department of Environmental Quality v. Township of Worth.

In that case, a 6-1 majority, with Chief Justice Robert Young Jr. dissenting, ruled that townships can be held responsible when private parties discharge raw sewage.

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.

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.”

MSC approves electronic signatures and notarization

The Michigan Supreme Court has amended MCR 1.109 to provide for electronic signatures and electronic notarization of signatures when necessary.

The Court added new subsection C, which provides:

(C) Signatures.

(1) A signature, as required by these court rules and law, means a written signature as defined by MCL 8.3q or an electronic signature as defined by this subrule.

(2) An electronic signature means an electronic sound, symbol, or process, attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

(3) If a law or court rule requires a signature to be notarized or made under oath, the requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable law or court rule, is attached to or logically associated with the signature.

(4) Retention of a signature electronically affixed to a document that will be retained by the court in electronic format must not be dependent upon the mechanism that was used to affix that signature.

Amended MCR 1.109 takes effect immediately.

The Court also amended MCR 3.204 – Proceedings Affecting Children. Under the amended rule, which takes effect Sept. 1, disputes concerning child support, custody or parenting time will be handled by motion practice whenever possible instead of filing a supplemental complaint.

The goal is to consolidate cases in a way that is more compatible with trial court case management systems.

Under an amendment to MCR 3.616, ex parte voluntary foster care petitions from the Department of Human Services must now indicate the youth’s race. The amendment, which takes effect Sept. 1, makes the rule consistent with MCL 400.655(a).

The Court declined to adopt proposed MCR 3.220, which would have required trial courts to set deadlines in domestic arbitration cases and would have allowed arbitrators to issue interim awards during the arbitration proceedings.

Immigration consequences of plea: No judicial involvement

On a 5-2 vote, the Michigan Supreme Court has declined to adopt court rules that would have required judges to either (a) inquire whether a defendant knows that pleading guilty may have potential immigration consequences or (b) provide an advice of rights to that effect.

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the U.S. Supreme Court held that an attorney provided ineffective assistance by not telling a client that pleading guilty to a drug charge could get him deported.

The MSC didn’t provide a reason why it passed on both versions of proposed amendments to MCR 6.302 and MCR 6.610.

Justices Marilyn Kelly and Michael Cavanagh dissented from the majority’s May 16 decision.