June 6, 2005 -June 12, 2005
Volume 3 Issue 23

In the Capitol
Committee meetings of interest for the week of 6/13
6/14 House Judiciary Subcommittee
Agenda: HB 4577 Provide for enforcement of medicaid whistleblower protection.

6/15 House Judiciary
Agenda: HB 4797 Eliminate the right to preliminary examination for certain crimes; HB 4799 Eliminate the right to preliminary examination for certain crimes; HB 4800 Eliminate the right to preliminary examination for certain crimes.

Complete Committee Meeting List

Legislation Recently Signed into Public Acts

Legislation Introduced 6/7 – 6/9
Of Interest to the Legal Community
HB 4870 Cemeteries and funerals; burial or cremation; persons entitled to make funeral and burial arrangement for a deceased; establish priority and related procedures. Amends secs. 1104 & 3614 of 1998 PA 386 (MCL 700.1104 & 700.3614) & adds secs. 3206, 3207 & 3208. TIE BAR WITH: HB 4890'05HB 4891'05

HB 4874 Appropriations; zero budget; department of corrections; provide for fiscal year 2005-2006. Creates appropriation act.

HB 4883 Appropriations; zero budget; judiciary; provide for fiscal year 2005-2006. Creates appropriation act.

HB 4890 Cemeteries and funerals; burial or cremation; persons entitled to make funeral and burial arrangements for a deceased; revise language in public health code to reflect changes in estates and protected individuals code. Amends secs. 2851, 2855 & 10108 of 1978 PA 368 (MCL 333.2851 et seq.) & repeals secs. 2651 - 2663 of 1978 PA 368 (MCL 333.2651 - 333.2663). TIE BAR WITH: HB 4870'05

HB 4891 Cemeteries and funerals; burial or cremation; persons entitled to make funeral and burial arrangements for a deceased; revise language in occupational code to reflect changes in estates and protected individuals code. Amends secs. 1801 & 1810 of 1980 PA 299 (MCL 339.1801 & 339.1810). TIE BAR WITH: HB 4870'05HB 4895 Law enforcement; law enforcement information network (LEIN); limit on certain access fees charged within a single county or city; eliminate. Amends sec. 4 of 1974 PA 163 (MCL 28.214).

SB 574 Civil rights; housing discrimination; using "source of income" to discriminate against applicants in real estate transaction; prohibit. Amends title & sec. 502 of 1976 PA 453 (MCL 37.2502). SB 575 Criminal procedure; DNA; samples to be taken from certain individuals awaiting trial; require, and provide penalties for improper disclosure. Amends title & secs. 3a & 6 of 1990 PA 250 (MCL 28.173a & 28.176).

In the Hall of Justice
FOCUS: Apsey v Memorial Hospital. Court of Appeals Affirms Need For Additional Certification For Notarized Out-Of-State Affidavits Of Merit, But Makes Requirement Prospective Only.

Upon reconsideration of its April 19 opinion, a panel of the Court of Appeals has affirmed its holding that out-of-state medical malpractice affidavits of merit prepared in conformity with the general requirements of the Uniform Recognition of Acknowledgements Act (URAA) must also comply with the additional certification requirements of MCL 600.2102. However, citing the injustice and inequity that could result from a retroactive application of this holding, the court applied the holding prospectively, permitting the plaintiff’s claim to proceed and allowing all pending medical malpractice cases to come into compliance by the filing of certification in conformity with MCL 600.2102. As of June 9 (the date of the decision’s filing), affidavits of merit acknowledged by an out-of-state notary without the additional certification required by MCL 600.2102 will not toll the statute of limitations. Acknowledging concerns raised by amici curiae, including the State Bar and its Negligence Section, the court said that the questions raised by the amici are best left for the Legislature. Judge Mark J. Cavanagh in dissent concluded that affidavits of merit filed in compliance with the URAA meet the requirements of 600.2912d(1) and do not require further certification.

Apsey Opinion On Reconsideration

Apsey Dissenting Opinion On Reconsideration

Rule Amendments
2004-33 - Amendment of Rule 9.221 of the Michigan Court Rules
New subrule (A) explains that Judicial Tenure Commission proceedings and investigative files are confidential and privileged from disclosure. The subrule addresses the ruling in Lawrence v Van Aken, 316 F Supp 2d 547 (WD Mich, 2004), which required the commission to disclose its investigative files because the language of MCR 9.221 did not render the files “privileged” from disclosure.
Subrule (B) clarifies that, before it files a formal complaint, the commission is limited in the type of information it can divulge regarding an investigation. New subrule (C) allows the commission to waive confidentiality of its records, in certain specified circumstances, and divulge information related to an investigation. New subrule (D) clarifies when the commission can reveal information about an investigation after the commission files a formal complaint.
New subrule (E) specifies the instances in which the commission can disclose information about the investigation to the grievant. This exception authorizes the commission to disclose threats against a person to the person whose safety is threatened. Subrule (H) allows either the Judicial Tenure Commission or the Attorney Grievance Commission to ask the Supreme Court to resolve a dispute regarding the disclosure of the commission’s investigatory records.
Issued:June 8, 2005
Effective: June 8, 2005
Public Hearing: To be scheduled

Proposed Amendments
2004-42 - Proposed Amendment of Rules 8.103, 8.107 and 8.110 of the Michigan Court Rules
New MCR 8.107(A) would require a judge to decide matters promptly after submission. MCR 8.107 (B) would require a judge to submit quarterly reports that include information on all matter pending during the reporting period that were not decided within 56 days of submission.
The amendments of MCR 8.110(C) would require monthly reports to the state court administrator in felony cases where there has been a delay of more than 154 days between the order binding a defendant over to circuit court and adjudication in felony cases, or a delay of more than 91 days between a defendant’s first appearance on the warrant and complaint, or citation, and adjudication in misdemeanor cases and local ordinance violations that carry criminal penalties.
Issued: June 7, 2005
Comment period expires: September 1, 2005
Public Hearing: To be scheduled

2004-33 - Proposed Amendment of Rule 9.221 of the Michigan Court Rules
New subrule (I) would waive confidentiality and privilege, thus allowing inclusion of the information in the Supreme Court’s decisions regardless of whether a formal complaint has been filed.
Issued: June 8, 2005
Comment period expires: October 1, 2005
Public Hearing: To be scheduled

 

 

 


At The Bar
BOC Seeks Applicants for Agency Vacancies

2005 Circle of Excellence

The Board of Commissioners met on Friday, June 10, 2005. The following public policy positions were adopted by the State Bar of Michigan on a unanimous vote:

ADM File No. 2004-55 - Proposed Amendment of Rule 3.211 of the Michigan Court Rules
In subrule (D), the proposed amendments require that all support orders be entered on a standard form approved by the State Court Administrative Office. SCAO regularly updates the form by adding provisions required by new federal and Michigan statutes. Using the SCAO form order will reduce paperwork and allow the order format to change without further amending this court rule. The current version of this form is available on the Court’s website. In relettered subrule (F), the proposed amendments allow personal information concerning a party to be provided to the friend of the court in a document separate from the court order. This will assure that the friend of the court has all the information that it needs, and that certain confidential information will be provided to the friend of the court without being included in the court order, which is a public document. A draft of the proposed Judgment Information form is available on the Court’s website. The Court invites comments on both the Uniform Support Order form and the draft Judgment Information form.
Issued: March 9, 2005
Comment period expires: July 1, 2005
Public Hearing: To be scheduled
SBM POSITION: The State Bar requests the Court defer action pending with the Michigan Child Support Enforcement System and its 2006 coordinated review process, with the Child Support Program Partnership, and with other interested entities.

ADM File No. 2004-53 - Proposed Amendment of Rules 9.124 of the Michigan Court Rules
The proposed amendments of MCR 9.124(B)(1) would expand the information a petitioner for reinstatement is required to include in or attach to the petitioner’s personal history affidavit. The proposed amendment of subrule (b) would add a requirement that the petitioner, at the grievance administrator’s request, provide authorization for the grievance administrator to obtain a copy of the petitioner’s personnel file regarding any employment held since the time of disqualification. The proposed amendment of subrule (f) would require a petitioner to attach copies of petitioner’s tax returns from the date of disqualification to the date of the petition for reinstatement. The proposed amendment of subrule (l) would add a requirement that a petitioner provide copies of any civil complainants and judgments or orders with respect to any outstanding civil judgments against the petitioner. According to the proposed amendment of subrule (m), a petitioner would be required to provide copies of criminal complaints and judgments of conviction or dismissals for any criminal case in which the petitioner was a defendant or a witness. Subrule (n) would require a petitioner to state on his personal affidavit whether since the date of disqualification the petitioner received treatment for mental or emotional disabilities or substance abuse or gambling addiction. If the petitioner received such treatment, the petitioner would be required to provide a statement from the service providers that contained a diagnosis of the condition and prognosis for recovery.
The proposed amendment of 9.124 (C) simply codifies what already occurs in hearings on petitions for reinstatement and appeals from decisions following those hearings.
Issued: March 9, 2005
Comment period expires: July 1, 2005
Public Hearing: To be scheduled
SBM POSITION: Support a court rule modification which requires disclosure of relevant financial data including conciliation agreements with taxing authorities and complaints for nonfiling of income tax returns or tax evasion, and disclosure of information regarding treatment for a mental or emotional condition where such condition was a basis for disqualification of the lawyer from the practice of law and disclosure of participation as a party in litigation.

HB 4006 (Caswell) Crimes; uttering and publishing; bad check pretrial diversion program; create. Creates new act.
SBM POSITION: Support in Principle

HB 4160 (Pastor)Civil procedure; civil actions; limitation on recovery amount allowed in small claims suits; revise. Amends sec. 8401 of 1961 PA 236 (MCL 600.8401).
SBM POSITION: Oppose in Principle

HB 4163 (Pastor) Crimes; fleeing and eluding; fleeing or eluding a police officer; establish a mandatory minimum 2-year sentence. Amends sec. 479a of 1931 PA 328 (MCL 750.479a).
SBM POSITION: Oppose in Principle

HB 4166 (Pastor) Crimes; disorderly conduct; penalties for participants at a youth athletic event to interfere with the game; provide for. Amends 1931 PA 328 (MCL 750.1 - 750.568) by adding sec. 81e.
SBM POSITION: Oppose in Principle

SB 60 (Cherry)Family law; child custody; custody action by third person; add incapacitated parent as basis for action. Amends sec. 6c of 1970 PA 91 (MCL 722.26c).
SBM POSITION: No position. Authorized the Standing Committee on Justice Initiatives to advocate its position. The Committee opposes the bill.

Sections and Committees
The Animal Law Section submitted the following public policy report:
US Congress House Report 108-576 accompanying H.R. 4754: The Animal Law Section supports (1) the separate reporting of animal cruelty crimes being extended to the existing system; and (2) categorizing these crimes as crimes against society rather than against property.

For a copy of the report, please email elyon@mail.michbar.org.  

Federal News
House Bill Eyes Campaign-Finance Changes
(Washington Times, 6/9/05)

State News
Possible Prison Closing Stirs Row
(Detroit News, 6/12/05)

Some Progress Made To Balance Budget, But Two Sides Far Apart
(Detroit News, 6/11/05)
See Also:
House OKs Bill To Cut State Aid To Thousands
(Detroit News, 6/10/05)
House Passes GOP Budget Plan
(Lansing State Journal, 6/10/05)

Murphy OK'd As U.S. Attorney
(Detroit News, 6/10/05)

Department of Corrections
(Lansing State Journal, 6/9/05)


Links of Interest
Public Policy Resource Center
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