July 26, 2002
The meeting was called to order by President Neckers at 9:30 a.m. on Friday, July 26, 2002, at the State Bar of Michigan, Lansing, Michigan.
Commissioners present were:
John M. Barr
Marjory G. Basile
Scott S. Brinkmeyer, Vice President
Kimberly M. Cahill
Thomas W. Cranmer, Treasurer
Kathryn M. Day
Nancy J. Diehl, Secretary
Evanne L. Dietz
Kim Warren Eddie
James N. Erhart
Hon. Joseph J. Farah
Julie I. Fershtman, Assembly Chair
Dennis P. Grenkowicz
Michael S. Hohauser
Ronald D. Keefe
Daniel M. Levy
Joshua A. Lerner
Craig H. Lubben
Richard D. McLellan
Hon. William B. Murphy
Bruce W. Neckers, President
Edward H. Pappas
Randolph P. Piper
Thomas G. Plunkett
Thomas C. Rombach
Kurt E. Schnelz
Charles R. Toy
Reginald M. Turner, President-Elect
Gregory L. Ulrich
Commissioners W. Anthony Jenkins and Cynthia D. Stephens were absent and excused.
State Bar Staff Present:
John T. Berry—Executive Director
Lisa Allen-Kost—Director, Programs & Services
Nancy Brown—Director, Communications
Thomas K. Byerley—Director, Regulation Counsel
Candace Crowley—Manager, Campaign Development
Gregory Conyers—Program Administrator, Justice Initiatives
Kathleen J. Fox—Director, Employee Services
Marian Frane—Manager of Financial Services
James C. Horsch—Director, Administration & Finance
Victoria Kremski—Assistant Regulation Counsel
William E. Livingston—Program Administrator, Lawyers & Judges Assistance
Roberta M. Lott—Administrative Assistant
Glenna D. Peters—Executive Coordinator
Janet Welch—General Counsel
Karen L. Williams—Committees & Sections
Present for such portions of the meeting as pertained to a specific agenda item were Becky Bechler, Public Affairs Associates; Mary Hiniker, ICLE Director of Publications.
As a result of the State Bar elections in June, Mr. Neckers congratulated the following commissioners on being re-elected; Randy Piper, Kim Warren Eddie, Nancy Diehl, and Hon. Cynthia Stephens. A motion was made and seconded to appoint Elias Escobedo, who won the election in District I, to fill the vacancy created by the resignation of Donald Tucker. He will serve a three-year term expiring in 2005. Motion carried.
A motion was made and seconded to approve the following items on the Consent Agenda:
The Board approved the minutes of the June 14, 2002 Board meeting.
The Board accepted the minutes of the following Executive Committee meetings:
June 3, 2002
July 1, 2002
July 8, 2002
Executive Director's Report—John T. Berry, Executive Director
The Board received the Executive Director's written report and the UPL litigation report.
Awards—Reginald M. Turner and James Steward, Co-Chairs
The Board voted to approve the following awards:
Champion of Justice Award—Henry Baskin, Hon. Robert Holmes Bell, Ann Cooper, Jim Neuhard, and Theodore St. Antoine
Liberty Bell Award—Marguerite Kowaleski
Frank J. Kelley Distinguished Public Servant Award—Senator Dan DeGrow and Saul Green
John W. Cummiskey Pro Bono Award—Margaret A. Costello
Judicial Conference—Hon. David L. Clabuesch, Chair
The Board received a written Presentation to the Michigan Supreme Court Regarding Changes to MCR 9.200 et.seq., as presented June 27, 2002.
Commissioner Liaison Reports— Written reports by the following Commissioner Liaisons were included in the Board agenda packet:
A. Kathryn M. Day: Law Student Section
B. Evanne L. Dietz: Committee on Defender Systems & Services, Committee on Legal Aid; Committee on Pro Bono Involvement of the SBM, Legal Administrator Section
C. James N. Erhart: Committee on American Indian Law, American Indian Law Section
D. Daniel M. Levy: Antitrust, Franchising & Trade Regulation Section
E. Hon. William B. Murphy: Labor & Employment Law Section
F. Gregory L. Ulrich: Committee on Judicial & Professional Ethics, Young Lawyers Section
President's Report—Bruce W. Neckers
Election of SBM Officers—Mr. Neckers opened the floor for nomination for State Bar officers. Mr. Neckers announced that President-elect Reginald M. Turner would succeed him as President of the State Bar and that Scott S. Brinkmeyer would be President-Elect for 2002-2003.
A motion was made and seconded to nominate Nancy J. Diehl as Vice-President for 2002-2003. Motion carried.
A motion was made and seconded to nominate Thomas W. Cranmer as Secretary for 2002-2003. Motion carried.
A motion was made and seconded to nominate Kimberly M. Cahill as Treasurer for 2002-2003. Motion carried.
Mr. Neckers reported that he received correspondence from the Children's Law Section, requesting action on a judicial tenure matter against certain Michigan Supreme Court justices. The letter was released to the media prior to it being seen by Mr. Neckers. He responded to the Section that it was an issue for the Judicial Tenure Commission and that the Bar did not have jurisdiction.
Mr. Neckers further reported that commissioners would be receiving requests for an analysis of John Berry's performance for the year. He noted that the Executive Committee would be working to develop a better process for evaluation and for establishing criteria performance standards in advance of future reviews.
Mr. Neckers also mentioned that comments (both positive and negative) have been received on his Bar Journal article in which he responded to the Chamber of Commerce regarding trial lawyers. President-elect Turner noted that the article was well written, very important for lawyers in the state, and that President Neckers should be commended.
On behalf of the Board, Mr. Neckers welcomed Richard McLellan back following surgery.
President-Elect's Report—Reginald M. Turner
Mr. Turner reported that a letter had been received from Dennis Archer (in his ABA capacity as President-Elect Designate), requesting that the Bar join with other representatives in a discussion regarding the need to improve the tenor and quality of judicial elections around the country. In addition to the State Bar, others included are: Mark Brewer, Chair of the Michigan Democratic Party; Lucille Taylor, Legal Counsel to the Governor; Rusty Hills, Chair of the Republican Party; Alan Helmkamp, President of the Michigan Trial Lawyers Association; Jim Barrett, President and CEO of the Michigan Chamber of Commerce; and Tom Gottschalk, Executive Vice President & General Counsel for the General Motors Corporation.
Following their last meeting, a statement of principle was developed and all parties have been asked to sign the document in support. Mr. Turner noted that the Executive Committee reviewed the statement and discussed the following: 1) Is it within the scope of Administrative Order 93-52) Do we have any prior positions that would encompass this [the Representative Assembly voted last September to urge the Michigan Legislature, Supreme Court, the State Bar, its Board of Commissioners and staff to prioritize programs that educate voters as to the workings of our justice system in regard to judicial elections and de-politicizes judicial selection] and 3) is there any First Amendment issue with regard to the Bar's participation?
Upon consideration of these issues, the Executive Committee recommended that the Board adopt the proposed statement. A motion was made and seconded to approve the language. Discussion followed and several friendly amendments were made. It was determined that the statement would be placed on a plain sheet of paper (rather than letterhead) and the language suggested and adopted, with the amendments indicated in strikeout and italics is as follows:
We, the undersigned, agree that judicial campaigns
for the Michigan Supreme Court should be conducted in a manner that encourages public trust and confidence in the justice system. We further agree that the 2000 campaign for Michigan Supreme Court included advertisements that should be avoided if public trust and confidence in the justice system is to be enhanced. Accordingly, we agree that judicial campaigns, whether conducted on behalf of candidates for judicial office or by others interested in the election of particular judicial candidates, should adhere to the following practices:
1. criminal conduct shall not be attributed to a judicial candidate (unless consistent with the ruling of an official regulatory or judicial body);
2. racial or ethnic bias shall not be attributed to a judicial candidate (unless consistent with the ruling of an official regulatory or judicial body);
3. immoral conduct shall not be attributed to a judicial candidate (unless consistent with the ruling of an official regulatory or judicial body);
4. knowing misrepresentations about a judicial candidate are not appropriate subjects for an advertisement about the judicial candidate; and
5. Professional or judicial misconduct in office shall not be attributed to a judicial candidate directly or by inference (unless consistent with the ruling of an official regulatory or judicial body).
These practices are not meant to be all inclusive but rather to suggest the range of unacceptable campaign practices so that the conduct of the judicial campaign, by the candidates and their supporters, is at a level that is positive, rather than negative and attack oriented. To this end, we agree to encourage positive campaigns and advertising.
And will condemn campaigns and advertising that are negative and detrimental to the effective administration of justice and to public trust and confidence in the justice system.
Representative Assembly Chair's Report—Julie I. Fershtman
Ms. Fershtman reported that 1) the agenda for the Assembly meeting on September 26 was in a state of flux, pending submissions that could be received through August 15 and 2) the internal review by the Assembly Review Committee would be on the agenda.
Executive Director's Report
Mr. Berry reported that Kay Fitzpatrick left her position as the Executive Director of the Detroit Metropolitan Bar.
Mr. Berry introduced Greg Conyers, the new Program Administrator for Justice Initiatives. Candace Crowley provided background information and welcomed Greg to the department.
Mr. Berry congratulated the Bar's communications department for receiving the 2002 Silver Excel Award, a competitive national award for excellence in the e-Journal. Nancy Brown and the staff of the "e-team" were recognized: Sharon Barnes, Carrie Pickett, Lucille Willis, Caroline Gamble, and Amy Ellsworth. Nancy noted that more than 11,000 cases have been summarized to date.
Mr. Berry reported that a Section Summit Advisory Group has been formed to follow up on issues discussed at the section summit, co-chaired by Kim Cahill and Dirk Hoffius. Ms. Cahill reported that the staff is in the process of compiling the information, conference calls have been scheduled, and recommendations will be made at the November board meeting.
Committee Restructuring—Janet Welch
Ms. Welch explained that two steps were required:
1) Amendment of Bylaw Article VI (initially discussed in April with requests for changes). Documents were distributed that reflected the desired changes, to include;
- Specific committees references are eliminated
- Details of reciprocal obligations between the bar and committees are incorporated in the without specifying the committee.
- Modern communication processes are included (online meetings, website notices).
2) Adoption of Resolution
Following adoption of the revised Article VI Bylaw, this resolution provides for an annual process, whereby the Executive Director would report on committee accomplishments from the previous year and make recommendations for the coming year to accomplish the Strategic Plan.
Motion was made and seconded to adopt the amended Bylaw Article VI. Motion carried.
Motion was made and seconded to adopt the proposed resolution. Motion carried. (See attached Addendum II for specific language).
Strategic Planning Implementation was removed from the agenda and deferred to the September Board meeting.
COMMITTEES, COMMISSIONS & TASK FORCES
Finance and Human Resources—Thomas W. Cranmer, Chair
Mr. Cranmer provided a financial update, noting that operating revenues were worse than budgeted, but operating expenses were significantly better. The Tier II Health Care costs remain under negotiation; however, a year-end balanced budget is expected.
Mr. Cranmer reported that the Finance Committee has been examining ways to generate more revenue and a document was distributed regarding the following proposed ancillary fees/dues changes: 1) Late Payment Fee 2) Administrative Reinstatement Fee 3) Age-Based Dues Exemption versus Age-Neutral Dues Structure and 4) Inactive Status.
A motion was made and seconded that the four areas be given further consideration and that there be some increases in either one or all four categories. Following discussion and a friendly amendment made by Reginald Turner, it was determined that the Finance Committee would continue to work on language, but currently the first paragraph of the proposal should read:
The Board of Commissioners would like to investigate whether certain fees and the application of dues criteria would more equitably distribute the cost of operations among practicing and inactive attorneys, and would reduce the magnitude of any future membership dues increase.
In regard to budget amendments, Mr. Brinkmeyer reported that the $164,000 budgeted for e-filing this year would not be spent this year; however, the right is reserved to carry over the funds.
Professional Standards—Nancy J. Diehl, Chair
The appointment of Elias Escobedo in District I was handled at the beginning of the meeting and there was nothing further to report.
Programs and Services—Scott S. Brinkmeyer, Chair
Mr. Brinkmeyer distributed a memo from Judge Donald E. Shelton, Chair of the e-Filing Task Force. In that memo he indicated that while he was stepping down as chair, he would remain a member of the committee and that Washtenaw County would take the lead in developing the e-filing model for the county. Mr. Brinkmeyer made a motion to change the jurisdiction of the task force as follows:
The task force shall monitor, coordinate and encourage e-filing initiatives in Michigan, assist in the development of recommendations for e-filing standards, explore opportunities for State Bar involvement, and review and make recommendations to the Membership Services Committee regarding secure document delivery services. Motion seconded and carried.
National Consortium Report—Lorraine Weber
Ms. Weber provided the following to the Board:
- The First Michigan Conference on Racial and Ethnic Fairness in the Legal System in conjunction with the 15th Annual Meeting of the National Consortium on Racial and Ethnic Fairness in the Courts will be held on April 10-12, 2003, at the Renaissance Center, Marriott in Detroit.
- The National Consortium was founded by four states including Michigan and has been the leading national voice for race and ethnic initiatives and the courts in the country. In partnership with the National Center for State Courts. Current Moderator is the Chief Justice of New Mexico Patricio Serna.
- This conference will bring together leaders at the state and national level from courts, bar associations, academia and community organizations to discuss the challenges and opportunities facing us in these areas and to develop effective strategies for assuring racial and ethnic fairness within the legal and judicial system.
- One of the highlights of the program will be a Thursday night banquet honoring Dennis Archer, President-elect of the American Bar Association, former Mayor of Detroit and Justice of the Michigan Supreme Court. We also hope to have a panel of speakers from all of the major national bar associations representing issues related to people of color.
- The Conference will provide numerous substantive programs as well as a number of social events. It is an opportunity to showcase the work accomplished in Michigan and to also look to the future in terms of innovative programs from around the country. The diverse ethnic communities of Michigan will be highlighted as part of the three-day program.
- As this will be the first statewide Conference on this topic, in Michigan we are hoping to attract broad-based collaboration and involvement from many state and national partners. We have already created a partnership with the Michigan Department of Civil Rights as they are celebrating their 40th anniversary in 2003.
- Sponsors will be invited and will be able to contribute in a variety of ways to the success of this conference, including: 1) Endorsement of the Conference and marketing to their membership to urge attendance 2) Representation of their organization and participation on the Conference Steering Committee 3) Presentation of a substantive program at the Conference 4) General Financial Support 5) Specific sponsorship of a program or event and 6) Donation of in-kind services or materials
Public Policy, Image and Identity—Reginald M. Turner, Chair
Ms. Bechler reported that the legislature adjourned after focusing on the budget and the significant deficit. An agreement was reached and they will be returning on August 14 to clean up the transportation budget that remains unresolved, in addition to two weeks in September. The Engler administration surprised everyone by vetoing significant items.
Mr. Turner asked for comments from the public about the Bar's legislative program, but none were forthcoming.
Mr. Turner provided an update on the Dressel v. Ameribank Amicus Brief. Ms. Welch thanked Commissioners Plunkett and Day for their assistance on behalf of the Public Policy Committee and Mr. Berry complimented all those involved for the team approach an excellent work product.
Michigan Court Rules
MCR 6.445 & 6.610—Criminal Procedure Generally.
Support in Principle.
MCR 7.203, 7.210, 7.211, 7.215, 7.217, 7.219— Jurisdiction of the Court of Appeals
Deferred to September.
MCR 7.302, 7.304, 7.306, 7.309—Application for Leave to Appeal; Briefs in Calendar Cases; Preparation, Filing and Servicing Briefs and Appendixes.
Support in Principle.
MCR 7.205, 7.210, 7.215, 7.302 and 7.316— Application for Leave to Appeal; Record on Appeal, Opinions, Orders, Judgments and Final Process from Court of Appeals.
Support in General with Removal of Discretion.
The proposed amendment would remove all discretion with respect to late applications for leave to appeal.
MCR 6.005 and Proposed New Rule 8.123—Letter Redesignation: Proposed New Rule re Record of Counsel Appointments.
Oppose in Principle.
Proposed new rules inconsistent with the Bar's prior positions. Will review in the future pending President Neckers' committee report to consider issues from the Bar's standpoint.
MCR 9.110— Attorney Discipline Board—Submitting a Quarterly Report Summarizing the Board's Activities.
Support in Principle.
MCR 9.128— Attorney Discipline Board—Allocation of a Greater Share of the Cost of Operating the Discipline System to Those Who Are Disciplined. Among other changes, the new provisions would permit an assessment for basic administrative costs as well as actual expenses and would expressly include investigative costs in actual expenses.
Support in Principle.
SB 1243— Torts, Malpractice, Civil Procedure, Occupations; Health Care Professions; Occupations; Physicians; Health (Relates to expert witnesses in malpractice cases).
Oppose in Principle. Believes that this is a matter better that is better addressed in a Court Rule.
SB 1308— Worker's Compensation; Occupations, Attorneys; State Agencies, Consumer & Industry Services.
Support in Principle.
SB 1328—Courts, District Court; Civil Procedure, Civil Action; Occupations, Attorney.
Support in Principle.
SB 1356— Criminal Procedure, Evidence; Children, Abuse or Neglect; Crimes Against Minors, Family Independence Agency.
Support in Principle with proposed amendment that a copy may be provided to defense counsel by a court order that contains protective conditions.
HB 4765— Criminal Procedure, Evidence, Domestic Violence.
Support in Principle, but matter should be addressed in a Court Rule, consistent with prior position on a similar matter.
Roll Call Vote:
Voting in Favor
Basile; Brinkmeyer; Cahill; Day; Diehl; Dietz; Eddie; Feikens; Fershtman; Grenkowicz; Hohauser; Keefe; Lubben; McLellan; Pappas; Piper; Toy; Turner; Ulrich.
Barr; Erhart; Escobedo; Judge Farah; Lerner; Judge Murphy; Rombach; Schnelz; Neckers.
HB 6139— (Not included in packet—reported by Lerner) Introduced to impose caps on all damages for all personal injury claims.
Deferred to next meeting pending an opinion from general counsel regarding any previous position the Bar has taken in regard to caps, and whether they are within Administrative Order 93.5.
Young Lawyers Section—Evanne Dietz, Chair
Ms. Dietz reported that the section has not met since the last Board meeting. Retreat is scheduled for September 7, 2002. She also provided an update on the section's recent and upcoming activities, including the Race for Justice during the Annual Meeting.
FOR THE GOOD OF THE PUBLIC AND THE PROFESSION
Comments or questions from Commissioners
Mr. Neckers asked for comments or questions from the Commissioners, but there were none.
Comments or questions from the public
Mr. Neckers asked for comments or questions from the public, but there were none.
There was none.
There was none.
The meeting was adjourned at 12:12 p.m.