April 30 - May 6, 2007
Volume 5 Issue 18

FOCUS: SBM Applauds Michigan Supreme Court Apsey Decision
The State Bar of Michigan applauds the decision of the Michigan Supreme Court in Apsey v. Memorial Hospital, released May 1.

The Apsey decision overturned a 2005 Michigan Court of Appeals judgment holding that signatures on out-of-state documents filed in a Michigan court must be certified by an out-of-state notary and the notarization itself must be certified by the clerk of a court within the notary’s county.

State Bar President Kimberly M. Cahill welcomed the decision. “The State Bar of Michigan pursued a response to the ruling in Apsey v. Memorial Hospital as a top public policy priority, and is very gratified that the Supreme Court has removed this senseless barrier to access to justice.”

The Court of Appeals decision was unexpected for several reasons.  It was based on an 1879 provision that had not been used for many decades and was reasonably believed by both plaintiff and defense lawyers to have been rendered moot by subsequent enactments of the legislature.  No evidence was offered of problems with out-of-state notarizations, and the requirement of additional certification by the county clerk of the court was impossible in at least 24 states and the District of Columbia.

Michigan protects against the filing of improper or false documents in court in several ways. Documents must be signed, affidavits must be verified by oath or affirmation, and a person who knowingly makes a false declaration may be required to pay the opposing party reasonable expenses and may even be held in contempt of court.  Also, for medical malpractice cases since 1986, Michigan requires that patients intending to sue, as well as the medical professionals who are the subject of the lawsuit, sign a notarized affidavit stating the opinion of a qualified health professional before the case begins.  The point of notarization is to certify that the signature of the health professional is valid.  Notarizing a document does not and cannot validate the merit of the affidavit.
Read the Position Statement

In the Capitol
Committee meetings of interest for the week of 5/7
5/8 Senate Appropriations Subcommittee: Judiciary and Corrections

Agenda: The FY 2007-08 Budget for the Department of Corrections; Michigan Prisoner Re-Entry Initiative; Policy Reform & Budgetary Savings

5/9 House Judiciary
Agenda: HB 4259 Provide for second parent adoption.
Family Law Section Position: Support with recommended amendments

5/9 House Tax Policy
Agenda: HB 4433 Provide for certification of mediators and mediation process in tax tribunal; HB 4434 Provide for issuance of proposed decisions and determination of fees in tax tribunal; HB 4435 Remove restriction on number of members from same occupation in tax tribunal; HB 4436 Modify small claims hearings in tax tribunal; HB 4437 Repeal requirement for evening hearing in the small claims division if requested in tax tribunal. 

5/9 House Agriculture
Agenda item of interest: HB 4643 Clarify liability for certain legal expenses of a drainage district. 

5/9 Senate Appropriations Subcommittee: Judiciary and Corrections
Agenda: The FY 2007-08 Budget for the Department of Corrections; Policy Reform & Budgetary Savings 

Complete Committee Meeting List

Legislation Introduced 5/1 – 5/3
Of Interest to the Legal Community

HB 4708 Civil procedure; evidence; introduction of evidence of an expression of sympathy as an admission of liability in a civil action; prohibit. Amends 1961 PA 236 (MCL 600.101 - 600.9947) by adding sec. 2155.

HB 4715 Counties; other; limitation on fines; allow charter counties to establish. Amends sec. 15a of 1966 PA 293 (MCL 45.515a).

SB 476 Family law; child custody; court review of arbitrator's decision on custody; allow court to gather additional evidence. Amends sec. 5080 of 1961 PA 236 (MCL 600.5080).

SB 477 Family law; child custody; child custody disputes that have been arbitrated; require courts to resolve in accordance with domestic relations arbitration provisions of the RJA. Amends sec. 4 of 1970 PA 91 (MCL 722.24).

In the Hall of Justice
The Michigan Supreme Court will hold an administrative public hearing on Wednesday, May 16, 2007, from 9:30 a.m. to 11:30 a.m. in the Supreme Court courtroom located on the sixth floor of the Michigan Hall of Justice, 925 W. Ottawa Street, Lansing, Michigan 48915.
Public Hearing Agenda
To reserve a place on the agenda, please notify the Office of the Clerk of the Court in writing at P.O. Box 30052, Lansing, Michigan 48909, or by e-mail to MSC_clerk@courts.mi.gov, no later than Monday, May 14, 2007.

Michigan Law Day 2007 Resolution

Administrative Orders
Third Amended Administrative Order No. 2007-2 - File Nos. 2002-34, 2002-44
Expedited Summary Disposition Docket in the Court of Appeals
The expedited summary disposition track was created at the request of the Court of Appeals to deal more quickly with cases that were appealed following a grant or denial of summary disposition by the trial court. It was intended to assess the questions whether parties and the court could brief, argue, and dispose of cases within six months of filing. While parties generally have been able to meet the stricter briefing requirements under the program, the court’s serious budget constraints have prevented it from meeting the expedited timelines, which the court believes places practitioners at a disadvantage. Rather than continue to be unable to comply with the time requirements of the expedited summary disposition track, the Court believes it is more advisable to suspend the operation of the expedited track indefinitely.

Issued: May 2, 2007
Effective: May 7, 2007
Suspended Indefinitely: Second Amended Administrative Order No. 2004-5 - File Nos. 2002-34 and 2002-44
Issued: November 9, 2006
Effective: January 1, 2007

At the Bar
FOCUS: The Board of Commissioners met on Friday, May 4, 2007. The State Bar of Michigan adopted the following public policy position:

ADM File No. 2005-37 - Proposed Amendment of Rules 5.101, 5.105, 5.113, 5.125, 5.206, 5.302, 5.306, 5.307, 5.309, and 5.403 of the Michigan Court Rules and Proposed Adoption of Rules 5.410 and 5.411 of the Michigan Court Rules
These amendments are published in response to a proposal submitted by the Michigan Probate Judges Association and the State Bar of Michigan's Probate and Estate Planning Section. This was a joint effort to increase the oversight of guardianship and conservatorship proceedings, as well as to improve other procedures in probate court.
SBM Position: Authorize the Committee on Justice Initiatives to advocate its position of support for ADM File No. 2005-37, proposed amendments to 5.403 (C) and (D).

Sections and Committees
The Family Law Section reported the following public policy positions:
Support with recommended amendments: HB 4174 (Pearce) Family law; parenting time; electronic visitation; allow court to order for parents and grandparents. Amends secs. 7a, 7b & 11 of 1970 PA 91 (MCL 722.27a et seq.).

Support with recommended amendments: HB 4259 (Condino) Children; adoption; second parent adoption; provide for. Amends secs. 24 & 51 of 1939 PA 288 (MCL 710.24 & 710.51).

Support with recommended amendments: HB 4521 (Byrum) Family law; marriage and divorce; certain inclusion of personal information in judgment; prohibit unless required by law. Amends 1846 RS 84 (MCL 552.1 - 552.45) by adding sec. 40; HB 4522 (Byrum) Family law; paternity; inclusion of personal information in order of filiation; prohibit unless required by law. Amends sec. 2 of 1956 PA 205 (MCL 722.712); HB 4523 (Byrum) Family law; child support; inclusion of personal information in an order under the family support act; prohibit unless required by law. Amends sec. 2 of 1966 PA 138 (MCL 552.452).

Oppose: HB 4564 (Steil) Family law; child custody; joint custody; mandate in every custody dispute between parents except in certain circumstances. Amends sec. 6a of 1970 PA 91 (MCL 722.26a).

Oppose: HB 4566 (Stakoe) Family law; child support; repayment of child support; allow under certain circumstances. Amends sec. 3 of 1982 PA 295 (MCL 552.603) & adds sec. 20.

Support with recommended amendments: SB 476 (Jansen) Family law; child custody; court review of arbitrator's decision on custody; allow court to gather additional evidence. Amends sec. 5080 of 1961 PA 236 (MCL 600.5080).

Support: SB 477 (Jansen) Family law; child custody; child custody disputes that have been arbitrated; require courts to resolve in accordance with domestic relations arbitration provisions of the RJA. Amends sec. 4 of 1970 PA 91 (MCL 722.24).

For a copy of these reports, please contact Elizabeth Lyon.

State News
Poll: Voters Support Tax Hike
(Detroit News, 5/7/07)

State Budget Woes to Curtail Speeding Up Some Court Cases
(Lansing State Journal, 5/5/07)

Differences Between House and Senate Business Tax Plans
(AP/Mlive.com, 5/4/07)

Michigan Senate Approves Business Tax Plan
(Lansing State Journal, 5/4/07)

House OKs Business Tax Plan
(Booth Newspapers/Mlive.com, 5/2/07)

Fair-tax Bill to be Introduced in Michigan Legislature
(AP/Mlive.com, 5/2/07)

Granholm Vows to Fill Flint Bench
(The Flint Journal, 4/30/07)

Links of Interest
Public Policy Resource Center | Michigan Supreme Court | Michigan Legislature | MCL Search Engines