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.

Chief Justice Young to address House Judiciary Committee

Michigan Supreme Court Chief Justice Robert P. Young Jr. and Michigan State Court Administrator Chad C. Schmucker will give a presentation on the 2011 State Court Administrative Office Judicial Resources Recommendations to the House Judiciary Committee on Thursday, Oct. 20 at 10 a.m..

Earlier this year, the SCAO recommended eliminating 45 trial and four Court of Appeals judgeships. The proposal was backed by Gov. Rick Snyder and the Michigan Judges Association, Michigan Probate Judges Association, Michigan District Judges Association and the Michigan Judicial Conference.

In addition to Young and Schmucker’s presentation, the committee will consider a package of bills that would implement some of the SCAO’s recommendations:

  • HB 5075 would eliminate a circuit court judgeship in the 27th Circuit, which covers Newaygo and Oceana counties. The bill would also eliminate district judgeships in Lake and Mason counties have the probate judges in those counties also serve as district court judges.
  • HB 5071 would eliminate judgeships in districts of Wexford/Missaukee and Grand Traverse/Antrim/Leelanau counties.
  • HB 5072 would eliminate judgeships in districts of Schoolcraft/Alger, Houghton/Keweenaw/Baraga and Ontonagon/Gogebic counties.
  • HB 5073 would eliminate one district judgeship in Ingham County and two in Genesee County.
  • HB 5074 would eliminate one district judgeship in Shiawassee County.
  • SB 416 would eliminated one circuit court judgeship in the 3rd Judicial Circuit (Wayne County), one district court judgeship in the 26th Judicial District (River Rouge and Ecorse) and one district court judgeship in the 85th Judicial District (Manistee and Benzie Counties).

    The bill also would split the existing 85th Judicial District into two distinct districts: the 85th-A and 85th-B. The 85th-A district would consist of Manistee County, while the 85th-B district would consist of Benzie County. In the 85th-A and 85th-B districts, the existing probate judges would take on the powers and duties of district court judges within their respective counties.

Three other bills that would eliminate other probate, district and circuit court judgeships are pending introduction.

House Judiciary Committee mulls mortgage fraud bills

Tomorrow, the Michigan House Judiciary Committee will consider legislation that cracks down on individuals and institutions engaged in residential mortgage fraud.

The committee meets Sept. 8 to consider a bipartisan, 16-bill package for referral to the Committee on Banking and Financial Services.

Sponsors of the legislation are not fooling around.

For example, under HB 4487, lenders face a 15-year felony for fraud during the lending process or when filing mortgage documents afterward, or for failing to disburse funds as promised in a loan commitment.

HB 4488 stiffens penalties for using false pretenses in connection with real estate transactions — the bigger the fraud (as measured by the transaction’s value), the longer the prison term.

Other bills in the package deal with fraud by notaries public and amending sentencing guidelines related to mortgage-fraud crimes.

Listed below are the bills, links to the text and other information, the primary sponsors, and thumbnail descriptions of the legislation.

  • HB 4462 – Rep. Marty Knollenberg (R-Troy) – Crimes; forgery; forging or uttering and publishing a real estate document; prohibit, and provide for penalties and remedies.
  • HB 4478 – Rep. Lisa Lyons (R-Alto) – Criminal procedure; sentencing guidelines; sentencing guidelines for forgery and uttering and publishing of real estate instruments; enact.
  • HB 4487 – Rep. David Nathan (D-Detroit) Financial institutions; generally; residential mortgage fraud; prohibit.
  • HB 4488 – Rep. Brandon Dillon (D-Grand Rapids) – Crimes; fraud; value thresholds for crime of false pretenses; revise.
  • HB 4489 – Rep. George Darany (D-Dearborn) – Criminal procedure; sentencing guidelines; sentencing guidelines for crime of false pretenses; revise to reflect increased penalties.
  • HB 4490 – Rep. Mark Meadows (D-East Lansing) – Criminal procedure; statute of limitations; certain crimes relating to real property; revise statute of limitations.
  • HB 4491 – Rep. Rashida Tlaib (D-Detroit) – Occupations; notaries public; penalties for notary public violations; clarify, and increase.
  • HB 4492 – Rep. Rashida Tlaib (D-Detroit) – Criminal procedure; sentencing guidelines; sentencing guidelines for notary public violations; enact.
  • HB 4495 – Rep. John Walsh (R-Livonia) – Criminal procedure; sentencing guidelines; sentencing guidelines for crime of mortgage fraud; enact.
  • SB 43 – Sen. Tupac Hunter (D-Detroit) – Financial institutions; generally; crime of residential mortgage fraud; establish.
  • SB 44 – Sen. Tupac Hunter (D-Detroit) – Criminal procedure; sentencing guidelines; sentencing guidelines for crime of mortgage fraud; enact.
  • SB 249 – Sen. Darwin Booher (R-Evart) – Crimes; fraud; value thresholds for crime of false pretenses; revise.
  • SB 250 – Sen. Darwin Booher (R-Evart) – Criminal procedure; sentencing guidelines; sentencing guidelines for crime of false pretenses; revise to reflect increased penalties.
  • SB 251 – Sen. Mike Nofs (R-Battle Creek) – Criminal procedure; statute of limitations; certain crimes relating to real property; revise statute of limitations.
  • SB 252 – Sen. James Marleau (R-Lake Orion) – Occupations; notaries public; penalties for notary public violations; increase.
  • SB 253 – Sen. John Gleason (D-Flushing) – Criminal procedure; sentencing guidelines; sentencing guidelines for notary public violations; enact.

AP: State House seeks funding for indigent defense

DETROIT (AP) — Michigan was a 19th century pioneer in providing legal aid to poor criminal suspects.

Now, it has one of the nation’s stingiest and most fragmented systems for representing the 80 percent of defendants who can’t afford a lawyer, a wide range of critics say.

The system often leads to people’s convictions being reversed because of mistakes an adequate legal defense should have caught. And it adds millions of dollars to prison costs for sentences that exceed state guidelines.

"Michigan’s neglect of many years generates large downstream costs," said Dawn Van Hoek, chief deputy director of the State Appellate Defender Office. "We need to connect the dots and adequately fund the system."

The office estimates Michigan would save $132 million a year in prison costs if it eliminated the excessive penalties judges impose because of improper application of state sentencing guidelines.

Of all the filings the State Appellate Defender Office made in 2008, 48 percent cited ineffective assistance of counsel, up from 14 percent in 1981.

With a class-action challenge to the system set for oral arguments next month before the Michigan Supreme Court, the state House Judiciary Committee is drafting a bipartisan proposal to overhaul Michigan’s 153-year-old indigent defense system.

The U.S. Supreme Court established the right to a free public defense in 1963, when it ruled for Florida convict Clarence Gideon that the Sixth Amendment required states to appoint lawyers for felony defendants who can’t afford them.

Michigan was ahead of the game then, having created its own county-level indigent defense system in 1857. Michigan even filed a brief in support of Gideon’s successful plea to the U.S. Supreme Court.

Today, Michigan’s indigent defense system is "failing in nearly every way," former Michigan Supreme Court Justice Dennis Archer told a U.S. House Justice Committee hearing last year. Archer, a former president of the American Bar Association and two-term Detroit mayor, said the state now has "a patchwork of underfunded, unaccountable systems."

Michigan’s annual indigent defense spending of $74.4 million, or $7.35 per capita, is 38 percent below the national average and less than all but six states, the National Legal Aid & Defender Association said in "A Race to the Bottom," a report commissioned by Michigan lawmakers.

Courts in each of Michigan’s 83 counties set their own pay rates and hiring systems, deciding what portion of their state-set budgets to spend on indigent defense.

"The level of justice a poor person receives is dependent entirely on which side of a county line one’s crime is alleged to have been committed," the 115-page report said.

Lawmakers from both parties in the state Legislature recognize the need to act, said Kent County Republican state Rep. Justin Amash, a member of the House Judiciary Committee.

However, bill sponsor Bob Constan, D-Dearborn Heights, acknowledged the measure will be a tough sell at a time when Michigan faces hundreds of millions of dollars of cuts to K-12 schools, universities and health care.

"It’s just the lowest thing people want to fund," Constan said Thursday. He said implementation may have to be spread out over four years.

In place of the current system, House Bill 5675 would create a statewide public defense system to fund and supervise the work of lawyers who represent the poor.

An appointed Public Defense Commission would oversee separate offices for trial and appellate defenders. Appointments would have to be based on experience and skill, case loads would be limited and pay brought in line with that of prosecutors.

The bill also would create statewide standards for deciding who is poor enough to need legal aid and allow for some defendants to pay part of the cost. Regional offices would manage services, which would use a mix of private lawyers and salaried public defenders.

Speaking for the Michigan District Judges Association, Ingham County Judge Tom Boyd acknowledged problems with today’s system but told a Judiciary Committee hearing Tuesday he fears "unintended consequences" from a wasteful bureaucracy.

Should the Michigan Legislature fail to act on its own, the courts may force a change.

In 2007, the American Civil Liberties Union filed a class action lawsuit against the state on behalf of poor defendants in Berrien, Genesee and Muskegon counties. The complaint said court-appointed lawyers in those counties were either too rushed or fear they won’t get more work if they slow down the docket with motions or requests for expert assistance.

National ACLU staff lawyer Robin Dahlberg told the Michigan House committee the passage of House Bill 5676 would go a long way toward fixing the problems.

"Until and unless the state does act, Michigan’s citizens will continue to be wrongfully deprived of their liberty," she testified.

HB 5744: ‘open and obvious’ would be comparative negligence issue only

The Michigan House Judiciary Committee will take up the slippery issue of the open-and-obvious doctrine with a Wednesday hearing on HB 5744.

The bill would amend MCL 600.2959 to make the open and obvious doctrine an element an issue of comparative fault only.

Under the open and obvious doctrine, in its current case-law formulation, premises liability cases must be dismissed as a matter of law when “an average person of ordinary intelligence” would discover the complained-of condition “upon casual inspection” and the condition “does not create an unreasonable risk of harm.”

The Michigan Supreme Court, in Lugo v. Ameritech Corp. 464 Mich. 512 (2001), ruled that the doctrine determines whether a premises owner even owes a duty of care.

Under HB 5744, sponsored by Rep. Andrew Kandrevas (D-Southgate):

whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, and shall not be considered with respect to any other issue of law or fact, including duty.

For a many-a-truth-is-said-in-jest critique of the doctrine, see “Adventures in OpenandObvious Land,” by John A. Braden in the March 2007 Michigan Bar Journal.

House to discuss juvenile competency bills

A Michigan House subcommittee will take another run at a package of bills that some say would help courts deal with youthful offenders. The bills address juvenile competency and culpability.

Supporters of the bills say that they’re long overdue, and would provide a process for minors who are deemed incompetent by the court. But critics have said that it’s unclear how the juvenile offender programs and processes would be funded.

The mental health subcommittee of House Judiciary will discuss the bills at a noon meeting on March 17. On the agenda:

  • HB 5175: Juveniles; criminal procedure; juvenile competency and culpability; clarify.
  • HB 5482: Mental health; forensic; restoration of juvenile to competency to proceed; clarify.
  • HB 5483: Juveniles; criminal procedure; restoration of juvenile to competency to proceed; clarify.
  • HB 5484: Juveniles; criminal procedure; certain statements made during juvenile competency evaluation; clarify.
  • HB 5485: Juveniles; criminal procedure; juvenile competency definitions; clarify.
  • HB 5486: Juveniles; criminal procedure; juvenile competency hearing; require.
  • HB 5487: Juveniles; criminal procedure; juvenile competency and evaluation; clarify.
  • HB 5488: Juveniles; criminal procedure; juvenile competency evaluation; require use of a qualified examiner.
  • HB 5489: Juveniles; criminal procedure; juvenile competency evaluation and report; clarify.

To read Michigan Lawyers Weekly coverage of the bills, click here.

Read the proposed bills here.

House Judiciary Committee takes up molders’ lien measures

A package of bills before the House Judiciary Committee would allow industrial mold and special tool manufactures that haven’t been paid to repossess their products 30 days after asserting a lien and demanding payment from their customers and end users.

The committee will take testimony on HB 4356, 4357, 4358 and 4359 on Wednesday, Feb. 17.

The measures supplement a ruling by the Michigan Court of Appeals in Delta Engineered Plastics v. Autolign Manufacturing Group, that a mold manufacturer’s possessory lien trumped a lender’s secured interest in plastic injection molds.

Check out a Michigan Lawyers Weekly story about the case.