2 STATE BAR OF MICHIGAN
3 MEETING of the REPRESENTATIVE
4 ASSEMBLY of the STATE BAR OF MICHIGAN
10 Proceedings had by the Representative Assembly of the
11 State Bar of Michigan at Kellogg Hotel and Conference
12 Center, Big Ten Room A, East Lansing, Michigan, on Saturday,
13 March 27, 2004, at the hour of 10:00 a.m.
16 AT HEADTABLE:
17 DANIEL M. LEVY, Chair
18 ELIZABETH A. JAMIESON, Vice-Chair
19 LORI A. BUITEWEG, Clerk
20 JOHN T. BERRY, Executive Director
21 HON. ARCHIE C. BROWN, Parliamentarian
22 GLENNA PETERS, Staff Member
25 METROPOLITAN REPORTING, INC.
1 CALENDAR ITEMS PAGE
2 Call to order 3
3 Certification of quorum 3
4 Adoption of proposed calendar 3
5 Summary of 11-14-03 proceedings approved 4
6 Filling of vacancies 4-5
7 Remarks by Daniel M. Levy, Chair 5-14
8 Remarks by Scott S. Brinkmeyer, President 15-23
9 Remarks by John T. Berry, Executive Director 24-30
10 Report on Administrative Order 2004-01 by 31-39
11 Report of Reapportionment by James C. Horsch 40-41
12 Michigan Law Online report by Lisa Allen-Kost 42-55
13 and Lynn P. Chard
14 Representative Assembly Liaison Reports 57-61
Law Practice Management Section by
15 Vincent A. Romano
16 Representative Assembly Committee Reports
Assembly Review Committee by Terri L. Stangl 62-65
17 Nominating and Awards by Thomas C. Rombach 66-69
Special Issues Committee by Ed Haroutunian 70-77
18 Consideration of Proposed Amendment to 78-104
19 MCR 2.112(K) (Non-Party Fault Issue)
20 Consideration of Proposed Revision to the 104-120
Juvenile Guardianship Court Rule
21 Motion to adjourn 121
1 East Lansing, Michigan
2 Saturday, March 27, 2004
3 10:19 a.m.
4 R E C O R D
5 CHAIR LEVY: Good morning, all. With
6 apologies for the traffic and for the fact that
7 apparently we don't have enough high school basketball
8 fans to know about such things in advance. I call on
9 the clerk to certify a quorum is present.
10 CLERK BUITEWEG: Quorum is present.
11 CHAIR LEVY: Call the meeting to order.
12 You have the proposed calendar in front of you.
13 Having had nobody contact me about possible
14 amendments, do I hear a motion to adopt it?
15 VOICE: So move.
16 VOICE: Second
17 CHAIR LEVY: All in favor.
18 Any opposed.
19 Without objections, the calendar is adopted.
20 You have before you the summary of
21 proceedings from the November 14th meeting. I have
22 not been contacted by anybody with amendments. Did
23 somebody want to move to adopt?
24 VOICE: So move.
25 VOICE: Support.
1 CHAIR LEVY: All in favor.
2 Any opposed.
3 Without objection, the summary is adopted.
4 Call upon the chair of the Nominating and
5 Awards Committee, Tom Rombach, to address item number
7 MR. ROMBACH: Mr. Chair, Tom Rombach, 16th
8 circuit. On behalf of the Nominating and Awards
9 Committee, I would like to move for the admission to
10 this august group three individuals, first being from
11 the 6th judicial circuit, that being Marcia Cynthia
12 Ross of Farmington Hills, for an immediate vacancy and
13 balance of the term expiring in 2005. Marcia, could
14 you please stand up so people can judge your fitness
15 for office.
17 MR. ROMBACH: From the 23rd judicial circuit
18 our next contestant for an immediate vacancy, the
19 balance of the term expiring 2006, is David Rifle of
20 Tawas. Is David here today? Okay, but he is going to
21 be in here anyway hopefully.
22 30th judicial circuit has two immediate
23 vacancies, balance of term expiring in 2004, Stephen
24 Gobbo of Lansing and Monique Pointer of Lansing are our
25 two nominees. If they could stand to be recognized.
1 There is Steve I see. There is Monique. Thank you
2 very much. I would like to move for their admission
3 to the Assembly.
4 VOICE: Support.
5 CHAIR LEVY: All in favor.
6 Any opposed.
7 Without opposition, they are currently
8 members. Welcome.
10 CHAIR LEVY: A couple of more
11 housekeeping matters, one housekeeping, one matter of
12 personal privilege, before I go into formal remarks.
13 In terms of housekeeping, some of you apparently have
14 already received, others of you will be receiving a
15 letter shortly -- I just misplaced my copy of it --
16 from Frank Lawrence regarding some litigation that the
17 Bar is involved with. I just wanted to assure you
18 that that matter is on the closed session agenda of
19 every Board of Commissioners meeting, which is where
20 it belongs, and we have Assembly members, myself and
21 Elizabeth, present at the executive meetings, with the
22 addition of Lori at the general board meetings, and we
23 are monitoring it. Feel free to look at it on your
24 own, but because it's litigation, that's about as far
25 as I can go at this point.
1 On a matter of personal privilege, before we
2 proceed any further, I was just informed by one of our
3 members of Clinton County that sometime over the
4 evening hours last night, or early hours this morning,
5 while on active duty in this neighborhood just a
6 little bit north of here, Clinton County Sheriff's
7 Department Deputy Perry Fillmore was killed in the
8 line of duty, and I would like if everybody would just
9 please stand for a moment of silence in his honor and
10 those who are protecting us and serving us each day.
11 (Moment of silence.)
12 CHAIR LEVY: Thank you, and thank you
13 on behalf of our Clinton County representatives as
15 Some of you will know, some of you won't know
16 what I mean when I say Bartamaus taught us to look at
17 things a new way. It will tell you the people who are
18 laughing have been here more than three years.
19 Three years ago chair stood in this position
20 and taught us about instructiveness and informed us
21 about educators, about a character in the Bible, blind
22 individual who taught us that there are different ways
23 to look at things and that there are times when we
24 should stop and look at things anew.
25 And I wanted to sort of carry on from that
1 point of view based upon what the Assembly has done
2 since that point, since we started to look at things
3 that way. And I think that when we took a look at
4 things anew we learned that we needed to be, as an
5 Assembly, we needed to be seeking out issues, not
6 simply waiting for issues to find us, and that we
7 needed to be seeking out membership input, not waiting
8 for those members to find us.
9 We also needed to be speaking to the Board of
10 Commissioners and to the Bar staff, not waiting for
11 them to come and say what are you thinking and to earn
12 the respect of the court, of our fellow Bar members,
13 of the Board of Commissioners, of Bar officers. And,
14 if at that point in time we needed to look to the
15 Bible and look to Bartamaus for a little bit of
16 guidance, I think at this point in time, oddly enough,
17 maybe we ought to be looking at Alcoholics Anonymous,
18 and what I am referring to is the oath. I am not
19 quoting it absolutely, because I don't, fortunately,
20 have a coin in my pocket, but give us the strength to
21 change the things we can, give us the patience to
22 accept the things we cannot change, give us the wisdom
23 to know the difference, and to that I would want to
24 add give us the discretion to the client to go where
25 we should not go, no matter how tempting it may be.
1 We have earned the respect and we have the
2 respect now of the Supreme Court, in part because of
3 what we did at the November meeting with the ethics
4 rules, in part because of what we did prior to that
5 with the question of dues and what dues should be with
6 the strategic plan. We have that respect. That's
7 given us the strength. That's given us the strength
8 to have impact, that's given us the strength to cause
9 change. But because it's a respect and a power that
10 we have earned, it's one that we very quickly could
12 Not long ago, in fact, people thought the
13 Representative Assembly was probably on it's way out.
14 It was probably on it's last legs. It had become, in
15 many people's opinions, not a relevant body, not a
16 body that was representing membership interests, one
17 that was incapable of addressing very tough issues and
18 coming up with resolutions.
19 We proved them wrong, but the truth is, when
20 I ran for clerk, when I was elected clerk, not very
21 long ago, two and a half years ago, I figured it was
22 about 75 to 80 percent sure that I would finish the
23 year as a chair, because the Assembly had that many
24 people saying, you know, what is its value, and we
25 have shown them what the value is, and I don't think
1 that there is any concern that the Assembly is going
2 anywhere as a body in a negative sense in the
3 immediate future. And I think that's a very good
5 I think the role of the Assembly, the role
6 that we are supposed to be carrying out, the role that
7 we have been carrying out in recent years is critical
8 to the existence of the Bar itself. The Bar is a
9 mandatory dues organization, but it is a
10 representative organization. It is not something that
11 can be run by a small and somewhat arguably elite
12 group of people. There needs to be this bigger,
13 unwieldy though it may be, body that can actually
14 truly represent as best as possible the interests of
15 the larger Bar membership.
16 But we need to remember, as we approach that
17 responsibility, we need to remember several things. I
18 think we need to remember why we are here, we need to
19 remember what we can do, we need to remember what we
20 cannot do, and then we should add that we always need
21 to remember what we should not do.
22 We are here to represent the Bar membership,
23 to set policy for the Bar, as the rules state our job,
24 essentially to shepherd the direction the Bar is
25 taking, to shepherd where the Board of Commissioners
1 is going to set those broad policy concerns about the
2 direction that this Bar will be taking, to make sure
3 that it remains a body that is answering to the needs
4 of the membership, that is serving the interest of
5 lawyers throughout the state, and that it is serving
6 the interests of the justice system we are each sworn
7 to protect.
8 We can do each of those things. What we
9 cannot do, based upon our size, based upon Supreme
10 Court Rules, we cannot micro manage, we cannot as a
11 body of this size be involved in every indecision or
12 every facet of Bar activities. We need to focus on
13 those larger policy concerns. We cannot be involved,
14 over a hundred of us meeting three times a year, in
15 every day-to-day decision.
16 And we should not try to do what we cannot
17 do, because if we do we fail, and if the Assembly
18 fails, the Bar membership loses its ability to be
19 represented in discussions with the court and
20 discussions amongst the Board of Commissioners. But I
21 think the most important things are that we should not
22 ever go where the Bar has no business.
23 Again, we are a mandatory dues organization.
24 We should not be taking positions on behalf of the
25 State Bar on items that affect -- well, we should be
1 taking positions on items that affect our members
2 professionally as lawyers. We should be talking about
3 items that relate to the public, to Access to Justice,
4 to issues of that sort.
5 The Supreme Court has told us, Keller
6 decision, two administrative orders since then, one
7 which we will be discussing briefly later on, that
8 because we are a mandatory dues organization we need
9 to, we are required to stay to those areas to some
11 I think we need to understand that truthfully
12 if we are a representative body the Keller decision is
13 our friend, not our enemy, that there are things that
14 we should not be trying to claim that the State Bar
15 has an opinion on because we can create a 55 percent
16 majority on a given day in this body. We are here to
17 represent the Bar, we are here to represent all Bar
18 members, and there are items on which the Bar is
19 divided and that we should acknowledge that the Bar is
20 divided and leave it up to sections who can take
21 positions on those sorts of issues, leave it up to
22 individual Bar members to represent themselves, but
23 not pretend that there is a Bar policy, and we should
24 also be careful never to represent, even in an issue
25 where we belong, that we are speaking for the entire
1 Bar if that is not the case.
2 Had dues past by a majority of one, it would
3 have been inappropriate for us to go to the Supreme
4 Court and say this is the Bar's position. And we need
5 to be cautious of that. We need to remember that we
6 represent all members of the Bar.
7 And it's for this reason that I believe that
8 the Bar needs to sometimes refrain from addressing
9 what might be the big hot issues of the day, and while
10 we can take on some items, there are other items that
11 even if we could take on we should not, and it's for
12 that reason you don't see before you on the agenda
13 something I would hold very close, something that I
14 think does relate to some extent to the system of
15 justice, and that's the so-called civil rights
17 As strongly as I believe that you cannot
18 solve a complex problem with a simplistic response and
19 as strongly as I believe that solving problems isn't
20 really the goal of that initiative, that ignoring
21 problems is the goal of that initiative, it is not
22 something that I am putting on the agenda today, it is
23 not something I have asked Rules and Calendar to put
24 on the calendar today, because it is something on
25 which there is no unified Bar. It is something, even
1 though it may have an impact on justice, on access to
2 the courts, it is something on which I believe the
3 Assembly needs to be cautious about not representing
4 the fact that there is a Bar opinion and leaving to
5 the members their ability to speak.
6 I say this to you today because we had the
7 vision not that many years ago to see where we could
8 go, and I think now we need to have the vision to see
9 where we should go and where we shouldn't go. We need
10 to be worried about maintaining the respect that we
11 have earned, maintaining our authority as a
12 Representative Assembly, as a representative body.
13 Getting to where we are from where we were five, seven
14 years ago was tough. Staying here may prove to be
16 And it is with those thoughts in mind that,
17 also on a more housekeeping sort of subject, I would
18 call each person's attention to the 2004 election
19 notice. You have an amended version loose. For most
20 of you the version that's in your agenda is correct.
21 Look for your names. If your name is there and you
22 don't have a star next to it, your term is up this
23 year, you are eligible to run, and you will find a
24 nominating petition on the table also. Today is a
25 good day for most of you to start filling it out and
1 start using it.
2 More importantly though, for those of you who
3 don't see your name there because your term is not up
4 or for those of you who see your name but see other
5 spots are available or see spots in other counties,
6 people who are not eligible, places where there are
7 openings, one of our responsibilities is to think of
8 people that we would like to have representing us and
9 to go back to our communities, go back to our
10 circuits, and convince those people that this is an
11 important body, a body that could benefit from their
12 wisdom and encourage them to run.
13 Our ability to serve as a Representative
14 Assembly depends upon us having representatives from
15 each of the circuits present, people who are here,
16 people who, like you, care about the issues that we
17 are addressing, and I would urge each of you, if
18 eligible, to start filling out that petition so that
19 you can be here with us -- well, be here without me,
20 but with the rest of you -- next year and for the time
21 in the future. We have very, very important work
22 ahead of us.
23 With that I would end my remarks. I would
24 ask that Scott Brinkmeyer, who is the State Bar
25 president who was kind enough to join us this morning,
1 take the microphone and address us.
2 PRESIDENT BRINKMEYER: Thank you, Dan. The
3 first thing I want to do is to thank each and every
4 one of you in this room for showing up today. I
5 remember when I first ran for this body back in the
6 early '90s and my first term of office I was convinced
7 to run for Representative Assembly by Jon Muth,
8 frankly the longest sitting and one of the best
9 presidents I think we have ever had in the State Bar,
10 and at the end of that first term I told him I was
11 going to quit. I said, I am bored to death. They are
12 not doing anything there. It's not interesting.
13 Everybody wants to leave by lunchtime. People don't
14 want to show up, and they don't want to stay when they
15 get here.
16 I think a lot of that has changed. I am very
17 proud to be a member of this organization. I hope
18 each and every one of you are, and I think the fact
19 that you are here shows that you are. What you have
20 done over the past few years is to be applauded. Your
21 leadership, at least since I left, has been
22 outstanding, possible exception of Rombach, but we
23 will forgive him for that. He is always running for
24 office or he has other things to attend to. We hope
25 he wins. He did a great job. But you are to be
2 I am halfway through this year. We are
3 halfway through this year, so you will be rid of me in
4 about six months, but I am going to tell you in the
5 meantime I am having one heck of a good time.
6 I spent yesterday with Mark Brissette and his
7 circuit in Bay City. I have gotten around to a lot of
8 your circuits, to John Dewane's and others. I was
9 down for Al Butzbaugh's swearing in, another great
10 leader of the State Bar, and I am having a blast. I
11 wouldn't trade it for anything. I wish I could get
12 paid for this job. Otherwise I am having a very good
14 Dan asked me to talk to you about the ABA
15 meeting this year. As you may or may not know, as
16 president, any president is automatically a member of
17 the House of Delegates in Michigan. There are
18 different ways you can designate who are your
19 representatives, but our president is always a member
20 of the House of Delegates, and I went back and I
21 looked over the agenda and what was done in
22 San Antonio. John and I were out there and others.
23 There were about seven or eight of us there,
24 delegates, and I confirm that truly this was the most
25 boring ABA House of Delegates meeting in memory, so I
1 am not going to share that with you. If you want to
2 talk about what went on there, we can, but I don't
3 think it would be of interest to you.
4 I would just like to share with you for a
5 couple of minutes part of what I have written about in
6 this month's Bar Journal. When you get back to your
7 offices on Monday, go out to the reception room,
8 retrieve it from the coffee table, take it to your
9 office, it looks like this. And there is an article
10 in there that I think may have some meaning to you.
11 You won't think so at first when you are reading
12 through it, but there are some very important points
13 that I thought about and that led me to write this
14 article. And it has to do with our profession and
15 what's happening nationally in terms of our
17 We are, again, a profession under attack, and I
18 want to underscore that, we are under attack. The
19 United States Chamber of Commerce has taken out
20 advertisements throughout the country on the basis of
21 a study that was done that rates the judicial systems
22 of our 50 states and basically is critical of those
23 judicial systems and the tort systems in those states
24 for the frivolous lawsuit type of points that have
25 been made politically in the recent past.
1 Our ABA president, Dennis Archer, has written
2 a letter to the Chamber president, and he has asked
3 that that letter be published in the papers of the
4 states in which these advertisements are being run.
5 This time they are not directly critical of lawyers as
6 they were in the last election. They are critical of
7 judges and judicial decisions, and they claim to have
8 data that supports the notion that every citizen of
9 the United States is paying $806 per person to support
10 this allegedly inept and inappropriate tort system of
11 ours, and Dennis takes them to task for that because,
12 as he suggests, when you look at the data behind that
13 study, it is full of flaws.
14 If you want to get that information and
15 peruse it for yourselves, merely e-mail me at
16 sbrinkmeyer@MMBJlaw.com, and I will send that to you.
17 It's being pandered through at least the states that
18 they feel are the worst. Michigan is in the middle,
19 by the way, so we are probably not getting -- we are
20 about 23rd, if I recall correctly. We are not getting
21 as much of this as many of the other states are.
22 But we are under attack, and one of the
23 reasons we are is probably to be laid at our doorstep,
24 not entirely, of course, but some, because, you know,
25 our brethren have done some things in terms of major
1 victories, if you will, tobacco suits, asbestos,
2 et cetera, that have drawn the attention of a lot of
3 businesses, and whether you support or oppose these
4 notions, there is a lot of money involved, and
5 wherever there is money, there is politics, as we all
6 know, and there is going to be people for and against,
7 and we are again at the forefront of this battle
8 ongoing Unites States-wide.
9 Why is it important to you, and I ask that
10 question, and I try to answer it in this article.
11 It's important to you because we remain today a
12 self-regulated profession. That is critical that we
13 retain self regulation, but there are more and more
14 efforts at a national level to have federal
15 intervention in the regulation of what we do, and not
16 only will that impact the rules on the practice of law
17 and our ethics rules, but they will also impact more
18 and more in the future who will be allowed to practice
19 in our states and under what circumstances.
20 We are, as you know, a global society and a
21 global economy today, at least we think 10,000 lawyers
22 are now making their living abroad, and we are allowed
23 to practice in other countries. They are like
24 different states, but each country is a country unto
25 itself. They don't have 50 states where you have a
1 different set of rules in every state.
2 I want to applaud today your efforts in
3 reviewing and making recommendations to the Supreme
4 Court on our ethics rules. That, as you know, was an
5 outgrowth of the ABA Ethics 2000 initiative. We are
6 at the forefront of that. It is critical, what you
7 did here is critical and will have an impact
8 nationwide on what happens in the future because, as
9 this economy grows more and more global, more and more
10 attorneys from other countries are going to want to
11 come in to this country and our states and to practice
13 As you know, every politician from the top to
14 the bottom wants to make sure that our economies are
15 robust, and, therefore, they want the impediments to
16 those robust economies to be reduced. The only way
17 they are going to do that for international lawyers is
18 to make sure that they can move from state to state
19 with relative ease. That was part of why the ABA
20 endorsed states looking at their rules and to make
21 them relatively equivalent so that the interstate and
22 international economies could remain robust and
23 lawyers could move around.
24 Now, we resist that by nature, we don't want
25 the competition, but it's here, and it's coming more
1 and more, and what will happen if we don't remain
2 vigilant as we have been, as you have been, on behalf
3 of our members is that more and more national level,
4 federal level policy makers will seek to impose rules
5 upon us, and we will have less and less to say about
6 how we practice law, who practices among us, and what
7 we do and how we handle those who don't practice
9 So I am here today really to applaud what you
10 have done, to thank you for doing it on behalf of all
11 of our members, and to encourage you to keep doing it.
12 I know it's difficult. We have got some folks from
13 the U.P., from Northern Michigan, from the thumb, from
14 the west who come, they came yesterday. One of them I
15 talked to got here at 2:00 in the morning and started
16 looking at his materials, naturally, when he got into
17 the hotel this morning.
18 But I really applaud you for this type of
19 commitment to the profession, and I am seeing that
20 around the state. When John and I and Lisa and others
21 talk to your circuits, your members, be encouraged.
22 When you show up here, don't lose sight of the fact
23 that you represent your constituencies and those
24 lawyers around this state, 35,000 plus strong, who
25 need your voice here, and don't fail to recognize how
1 important what you do is to the profession.
2 This is going to be a fight. Our profession
3 remains under attack. It will continue to remain
4 under attack. Don't get discouraged because you hear
5 this, whether it's at the Rotary Club or the country
6 club or the Lion's Club or wherever it may be that you
7 hear it socially and you hear the lawyers jokes and
8 those types of things. Frankly, I have spoken to a
9 lot of nonlawyer groups, and I have told them that I
10 think that a lot of this comes from jealousy.
11 We really are at the forefront. You can't
12 open a newspaper, a magazine, you can't turn on a TV
13 set and not hear of lawyers doing something. It may
14 not always be cast in the best light, but the fact is
15 that we are representing the rights of all of the
16 citizens of America every day in every state and every
17 city of the country, and we can't forget how important
18 that is, how important this rule of law is to all of
19 us, and you are emblematic of the best of our
21 If you do go and read the article, and I hope
22 you will, you will see at the end that there is
23 something I point out and remind you all of, and I
24 just want to leave you today with just one little bit
25 of that to remember, and I wonder how recently you
1 have recalled this to mind, but I ask you in the
2 article to recall, and I will just read the last part
3 of it. I will in all other respects conduct myself
4 personally and professionally in conformity with the
5 high standards of conduct imposed on members of the
6 Bar as conditions for the privilege to practice law in
7 this state.
8 Each and every one of us swore that when we
9 got a license to practice law. Go back and revisit
10 that often and remind yourself what you swore and how
11 important it is. Thank you.
13 CHAIR LEVY: I want to personally thank
14 Scott. He mentioned his leadership. He didn't point
15 out, though, in the detail I would like the fact that
16 he is one of those leaders who early on saw where we
17 could be going and started to point us in the right
18 direction. For that we owe him a debt of gratitude,
19 but more so throughout his years on the Board of
20 Commissioners and now this year as president, he has
21 not forgotten where he came from in terms of our
22 Assembly, and he has always spoken out to make sure
23 that the Assembly's views are heard, and we thank you
24 for that.
25 I would then like to introduce John Berry,
1 the executive director, and thank him before he speaks
2 just for understanding what the Assembly could do and
3 for expecting us to lead, not to follow, which had
4 been what was expected of us not all that long ago,
5 but to expect us to be given the facts and trusting us
6 to do with them what was right rather than telling us
7 where we should be going.
8 MR. BERRY: Well, I have got to lead off, I
9 have got one compliment and one question for our
10 chair. The positive comment I want to say is I have
11 gotten the opportunity to spend some time with our
12 chair over the last, since the last meeting, and I
13 have been so impressed not only with his leadership
14 but his thoughtfulness about everything that he deals
15 with, whether it's this organization or the Bar,
16 serving the public. Never from a standpoint of
17 protecting turf or from sticking the cord in the way
18 you are supposed to do it, but every issue that comes
19 in front of him looking at it. Now that's your
21 The comment or question I have is whose idea
22 was it to follow comments as strong as yours and the
23 president's and put me up third. I would like to -- I
24 would like next time to try to figure out how we can
25 work that out in another way. But it's interesting,
1 as I listen to both, we did not talk about our
2 presentations. At least I did not talk with our
3 president, I did not talk to our chair, but it's
4 amazing how all three of our comments are
5 interconnected and are very similar.
6 As the executive director of this Bar, I have
7 a lot of roles, but one of the roles that I think is
8 the most important is to connect our strategic plan,
9 the Bar's strategic plan, what was approved by this
10 Rep Assembly, Bar, and Board to every generation of
11 new leadership to continually, until the leadership
12 changes it, to remind us and keep us focused on that
13 and to go forward with that role.
14 And this strategic plan is dramatic in its
15 change. Both the chair and president spoke of that
16 change, dramatic change, within the last three years,
17 and I want to comment just briefly about that as well.
18 As we walked into this meeting we were met by
19 a number of partisan political folks. Some of you may
20 wish that you had gotten stickers put on, and others
21 may have avoided it like the plague, but it
22 reminded me of a Bar Journal article I wrote, one of
23 the first ones I wrote, before I knew too much about
24 this state, and it was called Wolverines or Spartans.
25 Now, I don't know how many of you read that
1 article, but it reminded me -- the purpose of that
2 article was to say our new strategic plan is about a
3 Bar which should welcome and people should feel
4 comfortable in, whether they are democrats or
5 republicans, whether or not they are conservatives or
6 liberals, and I added whether or not they were
7 Wolverines or Spartans.
8 I got a number of comments that said they
9 were with me up until the last part of that, and
10 obviously I needed to spend more time in the state
11 before I started writing articles about Wolverines and
12 Spartans. So this is, forget the last part of it, but
13 the first part of it, and that's what our president
14 was talking about, which is focusing on our
15 profession, focusing on making it more competent,
16 ethical, professional, dealing with these dramatic,
17 dramatic changes that are going on, some of which are
18 not bad.
19 Change can be good. Moving from Florida to
20 Michigan was a good thing. It was one of the best
21 things my wife and I ever did, but it's scary, and
22 sometimes you worry about it, sometimes you think
23 about it.
24 But change necessarily is not good or bad.
25 You have to look at each part of it, and I think part
1 of what's going on right now is that sort of reaction.
2 That's why this is an exciting and important time for
3 all of us.
4 Just briefly, to report to you how your Bar
5 is keeping on focus about that new Wolverine and
6 Spartan attitude and with that new attitude of making
7 sure we stay within Keller, and as your chair pointed
8 out, even within Keller our plan says that we should
9 be a Bar focused on those things that unite us not
10 divide us on a regular basis. It doesn't means at
11 times we aren't going to disagree, but the focus of
12 our money, our resources should be focused on those
13 things which draw us together to make the profession
14 better, and let us do the political battles somewhere
15 else in this world. That's what the strategic plan is
16 about, and what I report to you today is, and what you
17 are going to hear from other staff members and from
18 Lynn Chard is that's what we are focused on.
19 I am not going to steal the thunder.
20 Michigan online, fantastic. This is helping members
21 become more efficient. It's providing services
22 directly to them. Our public resource center
23 developed to help with legislation. Not to tell our
24 members where to go, but to give the information so
25 that they on their own can work through sessions and
1 then through the Bar can make decisions about where
2 they are going to go.
3 I want to report to you about our ethics
4 school. I mentioned this once to you before. We had
5 our second ethics diversion program, and Tom Byerley
6 heads up our program with that. This is a program,
7 instead of prosecuting lawyers who are getting into
8 minor difficulties because of stress or because maybe
9 their law office management techniques are not the
10 best, maybe their interpersonal skills could be
11 improved, maybe they are strong advocates but maybe
12 they just don't have that warm, fuzzy feeling with
13 their clients and they are causing difficulties and
14 complaints. We bring them into a room like this --
15 and let me ask you, how many people here have taught
16 either in school or seminar or programs, raise your
17 hands. Almost everyone.
18 You have never taught a class like walking
19 into a group of lawyers who have been initially
20 prosecuted for minor offenses and who look you in the
21 face and probably want to rip your heart out at the
22 moment at the beginning of class, but by the end of
23 the class understand what this Bar is about now, and
24 by the end of the class uniformly they say everyone of
25 you should be mandated to go to that class, because it
1 takes every possible problem that could happen between
2 a lawyer at the beginning of the representation to the
3 end, and it says how can you make that a positive
4 situation, how can you avoid complaints, even if they
5 are not legitimate complaints, how can you work better
6 with your clients, and by the end of the program,
7 that's what we are talking about with our new Bar. We
8 are putting our resources to helping them be able to
9 serve the public better. And, you know what, if we do
10 that, then that future that our president is trying to
11 lead us to and our chair is leading to and all of the
12 leaders will, that will be protected, because the
13 public will want to come to lawyers because they will
14 understand that lawyers are the place to go, and I
15 think that's what our Bar is devoting its time to.
16 Good news for you, we did hire a new UPL
17 counsel and we are going forward in looking at that
18 issue. But our future is to decide and to look even
19 more on how this profession has changed and what
20 lawyers can do, should do, what others can do or should
21 do and where we draw the line in the sand, and we have
22 to make sure that the public is protected in its
23 future action.
24 One last work that we are working on with the
25 deans in this state, and I chair the American Bar
1 Association's Professional Committee. We for the next
2 two years will be working with every law school in
3 this country to try to develop new ways to educate
4 students for the actual preparation of the practice of
5 law. The mind, the hands, the heart, and the
6 understanding of what they are going to face with this
7 new profession. We are excited about that work as
9 So with those comments I just want to tell
10 you again what a pleasure it is to be your executive
11 director. I appreciate a few moments to make a few
12 comments to you, and if you looked at all of the theme
13 of the three people that spoke to you, that theme is
14 one that I believe we are on the right path, we are
15 heading in the right direction, and it's a pleasure to
16 be part of it. Thank you very much.
18 CHAIR LEVY: I think everyone has met
19 Janet Welch. Janet Welch is general counsel for the
20 State Bar. We asked her to come and speak to us today
21 with a specific question in mind. The Supreme Court
22 recently, as most of you probably know, issued a
23 follow-up administrative order to Keller decision and
24 the administrative order, and the question we put to
25 her was does this change anything and, if so, how.
1 MS. WELCH: Good morning. I knew I was going
2 to have three tough acts to follow, so I really tried
3 to come up with a Keller joke and I failed. Instead
4 we have a Power Point.
5 Administrative Order 2004-1 was adopted by
6 the Michigan Supreme Court in February at our request
7 to modernize the Keller order of 1993. The heart of
8 the administrative order is the court's response to
9 issues relating to the State Bar's public policy
10 procedures and efficacy based on the U.S. Supreme
11 Court decision Keller V. California, and because
12 that's the heart of the order I thought it would be a
13 good idea to review what Keller is.
14 Keller arose in the late '80s when Eddie
15 Keller and 20 of his fellow members of the State Bar
16 of California sued the Bar claiming that the
17 Bar expended their mandatory dues to advance political
18 and ideological causes to which they did not subscribe
19 and that their compelled financial support of these
20 activities violated their First and Fourteenth
21 Amendment rights to freedom of speech and association.
22 They were unsuccessful in front of the
23 California Supreme Court and appealed to the U.S.
24 Supreme Court, which heard the case in June of 1990
25 and gave them partial satisfaction with the decision
1 issued in June of 1990.
2 The court said that the compelled association
3 and integrated Bar are justified by the state's
4 interest in regulating the legal profession and
5 approving the quality of legal services. The State
6 Bar may constitutionally fund activities germane to
7 those goals out of the mandatory dues of all members.
8 It may not, however, in such a manner fund activities
9 of an ideological nature which fall outside of those
10 areas of activity, and they also said that the guide
11 and standard must be whether the challenged
12 expenditures are necessarily or reasonably incurred
13 for the purpose of regulating the legal profession or
14 improving the quality of the legal service available
15 to people of the state.
16 In response to the Keller decision, which
17 sent shock waves through mandatory state bars
18 throughout the country, the State Bar of Michigan
19 asked the Michigan Supreme Court to adopt an order
20 regulating ideological activities in consonance with
21 the Keller order. And the order that they adopted
22 addressed ideological activity generally, activities
23 intended to influence legislation, which is really
24 where the most particular provisions of the order lie,
25 challenges regarding State Bar activities that might
1 not be in consonance with the order, and other State
2 Bar activities. All four of those categories had been
3 maintained for ten years.
4 The fourth category I think which addressed
5 lawyers auxiliary issues, I think historically was
6 probably the State Bar saying, well, we have your
7 attention, can you just address this issue about
8 funding of Law Day.
9 That provision has dropped off in the revised
10 order, and I have had questions about that, and the
11 Supreme Court itself says they are trying to make the
12 order consistent, keep it to the Keller purposes.
13 The heart of administrate order 1993-5, now
14 2004-1, is the list of activities for which the State
15 Bar can expend mandatory dues, and they include, and
16 this is the entire universe, the regulation and
17 discipline of attorneys, the improvement of the
18 functioning of the courts, the availability of legal
19 services to society, the regulation of attorney trust
20 accounts, the regulation of the legal profession,
21 including the education, the ethics, the competency,
22 and the integrity of the profession.
23 I am going to go through each of those one by
24 one to give you a sense of how we have responded to
25 interpreting what each of those categories allows us
1 to do. I am putting the regulation on discipline of
2 attorneys together and the regulation of the legal
3 profession, including the education, the ethics,
4 competency and integrity of the profession, because we
5 are interpreting those as essentially the same
7 And our responses to those have included
8 court rule and statutory provisions concerning
9 admissions, character and fitness and discipline,
10 ethics rules, ideological activities concerning legal
11 education and license restrictions and revocation,
12 including those that are in statute.
13 The improvement of the functioning of the
14 courts we interpret as allowing us to spend mandatory
15 dues on ideological activities addressing judicial
16 resources, court funding, court organization processes
17 and structure, and all court rules.
18 The availability of legal services to
19 society we have interpreted as allowing ideological
20 activities concerning programs for indigent civil
21 legal representation, identification of barriers to
22 access in legislation, pro bono activity, and
23 economics of the legal profession that affect the
24 availability of legal services to society,
25 potentially, for example, any tax on legal services,
1 loser pay legislation, and contingency fee proposals.
2 And, finally, the regulation of attorney trust
3 accounts is pretty self evident. IOLTA addresses that
4 in the ethics rules.
5 2004-1, as 1993-5, specifically exempts
6 sections because they are funded by mandatory dues.
7 The need to distinguish between the positions of
8 sections and those of the State Bar as a whole has
9 always been recognized in the State Bar bylaws. And
10 we have in our bylaws a statement that says that only,
11 the State Bar policy may be adopted and declared only
12 by the Board of Commissioners and Representative
13 Assembly, of course, and that no section or other
14 entity of the State Bar can represent the State Bar
15 without being authorized to do so. And the State Bar
16 bylaws have also contained rules for how sections can
17 communicate their public policy provisions.
18 Because the State Bar's ideological
19 activities are limited and the sections are not, the
20 need to distinguish between the positions of the State
21 Bar as a whole and the sections really have acquired
22 added significance since Keller, and there has been
23 increasing complaint over the last ten years about the
24 inability of legislators and sometimes even the court
25 to distinguish between whether a position was being
1 advocated by a section or whether it was being
2 advocated by the Bar as a whole.
3 Part of what the Supreme Court did in the
4 revised order is to attempt to address that confusion.
5 In 2003 the State Bar amended its bylaws to help
6 address that, to modernize and strengthen its public
7 policy provisions, including communications of
8 sections and committees, and we asked the Supreme
9 Court to modify the order in accordance with these
11 The new Keller order did everything that we
12 asked it to do and a little bit more. It permits the
13 State Bar to provide notice of pending public policy
14 actions by website posting, which allows us to act a
15 little bit faster. It eliminates the provision for
16 compulsory arbitration of member challenges in favor
17 of appeals to the Michigan Supreme Court.
18 In the entire 11 years since Keller was,
19 since the Keller order was adopted we had two
20 challenges, none of which required arbitration, and we
21 decided that it would be better to jettison that
22 fairly cumbersome provision, and it also rescinded the
23 provision concerning the lawyers auxiliary. 24 The Supreme Court also added the following
25 requirements for sections communicating public policy
1 provisions, and this is an area of the order that went
2 a little farther than we asked the Supreme Court to go
3 in putting requirements on sections to communicate,
4 and this may be something that you have heard from
5 sections about.
6 Whenever a section engages in any ideological
7 activities, it must include on the first page of each
8 submission before the text begins and in print larger
9 than the statement's text a disclosure indicating, and
10 here are the provisions of what sections now must say,
11 that the section is not the State Bar of Michigan but
12 rather a section whose membership is voluntary; that
13 the position expressed is that of the section only,
14 and that the State Bar has no position on the matter,
15 or if the State Bar has a position on the matter what
16 that position is, the total membership of the section,
17 the process used by the section to take an ideological
18 position, the number of members of the decision-making
19 body, and the number who voted in favor and opposed to
20 the position.
21 All of these the Supreme Court has told us
22 are, they feel will help address the confusion
23 between, the possible confusion between a position
24 expressed by a section of the State Bar and the State
25 Bar as a whole.
1 And, finally, the order says that if a section
2 is communicating orally it must also communicate the
3 substance of what is required in written
5 These provisions, as I said, go a little bit
6 beyond what we thought was needed, but we want to help
7 sections respond appropriately, conform to the order's
8 requirements, and the way that we are hoping to do
9 this is through our Public Policy Resource Center.
10 The Public Policy Resource Center has a
11 number of new tools that help not only sections but
12 all members be more effective in their public policy
13 advocacy. Has electronic links -- if you haven't
14 visited the site, visit it -- to all bills of interest
15 to the profession by practice category, which helps
16 sections really see what it is that's going on on a
17 weekly basis.
18 We have a weekly public policy newsletter
19 which highlights section positions. We have internal
20 operating procedures that expedite state court action
21 on public policy items. And, finally, and this is the
22 most important thing for sections in response to the
23 new order, we have a template onsite that sections can
24 use to fill out to report their public policy
1 This shows you a little bit what the Public
2 Policy Resource Center looks like. We will just spin
3 through what it looks like and get to the template.
4 When a section enters this information, what
5 we will do at the Bar is take that information and
6 generate a cover letter for each section that responds
7 specifically to the requirements of Administrative
8 Order 2004-1.
9 I want you to know that I didn't coordinate
10 what I put together with what Dan had to say, but I
11 want to end with something that reinforces what Dan
12 says, which is that we have to put all of these
13 requirements in the context of our strategic plan,
14 which is that the State Bar of Michigan will
15 aggressively advocate for issues that support its
16 statement of purpose, minimize divisiveness and are
17 achievable. And I think what we are doing to respond
18 to what the Supreme Court has told us to do really
19 advances that goal. Thank you.
21 CHAIR LEVY: Those of you familiar with
22 the court rules and the Bar rules governing us are
23 familiar with the fact that every six years we
24 reapportion the Board of Commissioners and the
25 Representative Assembly. The Assembly is not a
1 process that takes a lot of individual input. It is a
2 little bit more routine, but what we did ask Jim
3 Horsch, who has got a long title that I have always
4 translated as CFO, but I guess includes administrative
5 responsibilities like whatever computer process it is
6 that does this, to at least clue us in as to how it
7 was done and what changes there are.
8 MR. HORSCH: Thank you, Dan. In your
9 advanced materials under reapportionment there is an
10 exhibit that shows the reapportionment, and that has
11 been updated with an exhibit to correct a
12 transposition at your tables, and basically this was a
13 mathematical calculation that looked at the number of
14 members in each circuit and compares that to the total
15 population, and as a result of that there are changes
16 in the seats that are assigned to each circuit that
17 make up the 142 members of this body.
18 There were five circuits that were impacted
19 after looking at that proportion of the attorney
20 population and each circuit to the total, and I will
21 read those to you. Wayne County, which is 3rd
22 Circuit, went from 22 seats to 20, so they went down
23 by two seats. The 6th Circuit, Oakland County,
24 increased by one seat from 26 to 27. Circuit 30,
25 Ingham County, went from eight seats to seven seats,
1 so they reduced one seat. Lenewee County, Circuit 39,
2 increased from one seat to two seats, so they gained
3 one seat, and finally Ingham County -- excuse me,
4 Eaton County, Circuit 56, increased from one seat to
5 two seats, so they went up by one also.
6 And, Dan, I am available for questions if
7 anyone has any questions on this mathematical
9 CHAIR LEVY: Seeing no questions, I
10 just wanted to add, and the reason I had my name down
11 here too, is that in addition to doing the
12 mathematical computations that determine the number of
13 seats, we looked at, as the rule required us to do, we
14 looked at the apportionment within the circuit of the
15 election cycles, and discovered that, for example,
16 places like Wayne had 22 seats, becoming 20 seats, but
17 of those 20 seats exactly one was up this year, and
18 the rules require that they be staggered so that one
19 third is up each year in a circuit of that size.
20 So what we have done is listed on occasion in
21 a few places election cycles where we will be electing
22 people for two years rather than three in order to
23 bridge those gaps and try and level things out so that
24 in the next couple of years you will see once in a
25 while in the larger circuits that what was the end of
1 a three-year term is now going to be elected for a
2 two-year term, and the purpose of that is just so we
3 have some of the balance that's required as we go
5 We talked a lot about -- thank you, Jim.
7 CHAIR LEVY: We have talked a lot about
8 the fact that the Bar needs to be attentive to its
9 membership and provide its membership with tools and
10 with services, but what we have, while we have been
11 talking, other people have actually been doing it, and
12 I would like to recognize and thank Lisa Allen-Kost
13 and Lynn Chard, who are two of those people who have
14 actually been coming up with ways that we as a Bar can
15 be serving our membership and will be presenting one
16 that I think is a pretty spectacular method of doing
18 MS. ALLEN-KOST: Good morning. I have the
19 pleasure of talking to you today about something that
20 is very near and dear to my heart, and that is the
21 State Bar's relationship with ICLE and Michigan Law
22 Online. I am going to tell you a little bit about the
23 historic background behind the creation of this
24 product and our continued relationship with ICLE, and
25 I am going to turn you over to Lynn, who is really
1 going to walk you through the product.
2 When I came to the Bar seven years ago I had
3 the question, What is ICLE? It was one of the first
4 questions I remember asking, and somebody said, That's
5 our education provider, and they are one of our
6 competitors. And that perplexed me, because I had
7 been working for the Dairy Association before that,
8 and the education component of our association was
9 very, very important to us and helped us create value
10 for the organization, so I had trouble understanding
11 why anyone would consider ICLE a competitor and not a
12 partner. And over the last seven years we have worked
13 very hard at the State Bar of Michigan to treat ICLE
14 as a partner rather than a competitor.
15 Four years ago we started a conversation with
16 Lynn -- I think you probably recall this, Lynn -- in
17 Brighton where I was really pleased to discover that
18 ICLE also saw the positive value in partnership, and
19 Lynn and I spent about an hour outside of a restaurant
20 talking about the possibilities.
21 Three years ago I had a breakfast meeting
22 with Lynn that actually turned into a lunch meeting,
23 if you will recall, and we talked more about it and
24 what the possibilities were for our relationship.
25 Three years ago our organization did some
1 research with new members, and we were surprised to
2 discover that new members didn't really have a clear
3 distinction between ICLE and the State Bar of
4 Michigan. In fact, they thought many of the materials
5 that the State Bar was sending them were from ICLE and
6 vice versa.
7 Three years ago we also placed in our
8 strategic plan a goal of improving our relationship
9 with ICLE, and we are pleased to discover that ICLE
10 had also placed into its strategic plan the exact same
12 One year ago we began working on specific
13 joint projects. We developed this year a cobranding
14 agreement with ICLE which assures that both
15 organizations are branding each organization, and you
16 will see now on all of your ICLE materials that there
17 will be a tag line that says the educational provider
18 for the State Bar of Michigan.
19 We also instituted or incorporated ICLE
20 financially and structurally into the organization.
21 We added Lynn to the Membership Services Committee,
22 and she has been a vital part of that committee for
23 over a year. We added Lynn to our Meeting Planning
24 and Events Committees, and we have been working
25 jointly with ICLE to develop the annual meeting, Bar
1 leadership forum. They have been instrumental and
2 will continue that work over this next year.
3 And last but not least, we developed a really
4 great product called Michigan Law Online, and that was
5 really based on a conversation, a long conversation
6 with John Berry and Lynn, about the creation of this
7 product and the possibilities of offering a free
8 primary legal research product to Michigan State Bar
10 We believe and ICLE believes that the
11 partnership between our two organizations increases
12 the value of State Bar membership to all of our
13 members, and I am really excited to turn this over to
14 Lynn, who is going to tell you more about the product.
15 Thank you.
17 MS. CHARD: Thank you, Lisa. I would like to
18 say that ICLE really has been honored to be working on
19 this product on behalf of Bar members, and it's really
20 been a pleasure to work with John Berry and Lisa
21 Allen-Kost, Nancy Brown, and their staffs. It's been
22 a very rewarding experience.
23 Now, with respect to Michigan Law Online,
24 let's get started with looking at what is available
25 there. You are going to have lots of cases, thousands
1 of cases, all the published cases from Court of
2 Appeals as well as the unpublished cases going
3 forward. We started with 2003 and going forward.
4 For the Michigan Supreme Court we are going
5 cases back to 1942 and orders back since 1966, which
6 is the beginning of when the Supreme Court issued
8 With respect to rules, we have the Michigan
9 Court Rules, the Michigan Rules of Evidence, and the
10 Rules of Professional Conduct.
11 Now, with respect to who will get this
12 service, all Michigan Bar members in good standing.
13 That will be both active and inactive members who have
14 paid their dues, because, as you know, there was a
15 change in the dues structure.
16 In order to access the service, you are going
17 to need a user name and password, and we are going to
18 start sending the notices out this week, starting
19 Monday. We are going to be sending notices to Bar
20 members. The first wave will be in batches by e-mail,
21 so everybody that has given the Bar their e-mail
22 address should be getting a notice over the next week
23 that gives you a user name and password that you can
25 In addition, we will be publishing a lot of
1 notices, certainly it will be in the Bar Journal and
2 e-journal, to let people know about this. In case
3 they haven't gotten a password via e-mail, they can
4 simply call up ICLE and ask to get one, and they will
5 be given one. And I believe the Bar also plans to
6 follow up with letters to people who do not have
7 e-mail addresses on file.
8 Now, how do you get started with using the
9 service? The database itself, the database of cases
10 and rules, resides on the server at ICLE, but you can
11 access it by going to the State Bar site or ICLE site.
12 The State Bar site, I believe in their left-hand
13 column there will be a link to the service, so you
14 just click on that and you would get to the log-in
16 You would need to type in your user name and
17 password and then also a screen will appear that will
18 ask you -- I think your basic information about your
19 address and P number should come right up, I believe,
20 as long as we have you on record. If not, then you
21 would type that in, indicate areas of practice, and
22 also read a licensing agreement, because you are
23 basically getting a license to use all of this
24 information. And the licensing agreement would say
25 you agree to use it, use it in your practice, that
1 anybody working with you, support staff, can use it.
2 They need to use your user name and password, because
3 it is only Bar members who are going to be getting
4 this, and you are agreeing not to copy it or sell it
5 or give it to others.
6 So you click an agreement to that, and then
7 you are into it, and you only see all that information
8 the first time. Once you log in, once you have got
9 your user name and password and logged in and then you
10 use it from the same computer, it will remember it, so
11 that's just a one-time process.
12 Once you get in, this is what you are going
13 to see. You can see at the top we have the
14 cobranding of the State Bar of Michigan and ICLE. You
15 are probably starting to get familiar with the new
16 logo use of the SBM for the State Bar of Michigan.
17 They are above the screen buttons at the top there
18 that can take you quickly back to the State Bar site
19 or to ICLE's website.
20 On the left-hand column there is an ad for
21 ICLE's partnership, there is a browse button where you
22 can simply browse, select different collections and
23 browse if you want to do that, and there are links to
24 other primary, free primary information that is very
25 good, like the legislative services site that has the
1 MCL. But it's in the main area, the main search area
2 there, that is the heart of the service.
3 If you know the citation to a case that you
4 want, one of the quickest ways to get it is to simply
5 use that top area and type in your citation using the
6 format that's indicated right below to use.
7 Next, down there by search by keyword or
8 phrase, which is what you are going to often use, you
9 can search across all the collections or limit your
10 search to one collection of cases. If you just want
11 Court of Appeals or you just want Supreme Court orders
12 or something, if you simply would type in your search
13 phrase. At the bottom there are some search tips, and
14 I also handed out a sheet that has search tips.
15 This is a service that's been developed on a
16 budget. We are not Lexus or West. It's not a, you
17 know, several million dollar search engine. It's a
18 good search engine, it's standard, but it's important
19 to read the instructions about how to do the searches,
20 you know, using your ands, your ors, and connectors.
21 If you follow those directions, you are going to get
22 excellent search results.
23 One features is that you can also do an
24 advanced opinion search, so in there, if you wanted
25 to simply look for things with a particular party
1 name, you can do that. If you want to find the
2 opinions of a particular, that are written by a
3 particular judge, you can do that. You have a docket
4 number, a specific citation, and then at the very end
5 you can limit the range of your search to a particular
6 year range of time, maybe you just want to see things
7 since the year 2000. You can do that. So I think the
8 advanced search gives you a lot of the functions that
9 you are used to in some of the high level research
11 Now let's take a look at what the search
12 results are going to look like. There is term
13 highlighting. You can turn that off if you want, but
14 if you want term highlighting, if you put in, in this
15 case we put in the search term highway exception, you
16 will get the citations to the case with a little
17 snippet of the case surrounding the first area where
18 your term, the term that you searched for, appeared,
19 and then you are also getting the citation for the
20 case and an indication of whether it's a Supreme Court
21 or the Court of Appeals. This should help you quickly
22 look through the results and know whether this is
23 something you want to go to and look at further or if
24 it's not really what you are looking for.
25 Now let's see what an actual opinion looks
1 like. Here is how the opinions are going to be set
2 up. Again you see at the top the cobranding so that
3 your members are going to be seeing that this is
4 brought to you by the State Bar and ICLE.
5 We put all the key information right at the
6 top in terms of the name, the citation. There is a
7 link for full name in cases where there are multiple
8 defendants. The name that appears that's printed
9 there, is the one in the book, but often there is a
10 longer name to the case. You can click and you can
11 get that clearly, quickly you can see when it was
12 decided, the docket numbers, the disposition, whether
13 it was reversed or affirmed. You see the names of the
14 counsel and the judges. We really tried to set it up
15 so that just at a glance you had all the key
16 information that you needed.
17 And we also built in some sort of nifty
18 features. I think up at the top the underlined stuff
19 that's right below the blue bar, there is view
20 opinions. You can jump to the majority of concurring
21 or the dissent opinions. They are just quick ease of
22 access. There is print this case, and that's like a
23 print friendly version of the case, so if you want to
24 include it in your briefs or your motions, you can
25 just click that and it's going to automatically
1 download it and print it out for you on just blank
2 paper. You are not going to have any, see any of the
3 surrounding information.
4 Then one of the nicest features is view
5 Michigan decisions that cite this case, and that's up
6 at the top left there, and next slide. When you click
7 back, here is a list of all the other Michigan cases
8 in the state, so it would all be things going forward
9 from -- these cases only go back to '42, so everything
10 that's subsequently citing cases that are here that
11 are Michigan cases are going to show up on this list.
12 Now, what you are not going to get is if a
13 federal court has cited this case, that's not going to
14 be on the list, or an out-of-state case citing this,
15 but it's going to give you the Michigan history.
16 There is one other caveat, and that is in a
17 few cases a case goes back on remand and it changes
18 its docket number, and we haven't figured out how to
19 catch those. So that's not very often, but that is
20 not here, and we are going to work on that. If we can
21 figure out a way to tell the machine to find it, we
22 are going to find it, but right now that's not there.
23 Now, another feature is we have a feature
24 that says cite this case, and we have simply converted
25 all the citations to the official citation format with
1 parallel sites and so on, so it complies with the
2 court rule or court order that tells you what the
3 official citation needs to be in your briefs.
4 So you click on that, you get this, and you
5 just copy it and have it right there for your briefs
6 and opinions.
7 Then I also want to take a look at another
8 picture of a case that's just to show you that within
9 the case itself there is also term highlighting. Any
10 term that you searched for is going to be highlighted.
11 There is a limitation. If the case is 80 pages long,
12 the term highlighting dies. I mean it doesn't go past
13 80 pages, and that's just for reasons of speed if it
14 were doing that.
15 And then there is another feature right in
16 the middle of that page, Nancy, it says page 462 is
17 underlined. We are providing you in all these
18 opinions when you are citing the cases, you are going
19 to be able to get pinpoint cites. You are going to
20 know what the official page, is because everything
21 below that is on page 462 in the regular printed
22 opinion, and, again, that's underlined, and if you
23 clicked on that, you would see the official pinpoint
24 cite. Doesn't give you the pinpoint to Northwest,
25 just the first page of the Northwest cite, and that
1 complies with Court Rule.
2 So those are the features. We welcome your
3 feedback. This is a service that is being developed
4 by your State Bar and ICLE for you, for your members.
5 We don't have millions of dollars, but we do have a
6 lot of energy. We have staff who are excited, who are
7 dedicated, who are intelligent who are working on
9 If you have ideas about content, additional
10 things that you would like to see, additional features
11 that you would like to see, ICLE and the State Bar are
12 sitting down and talking about reviewing this service
13 once a year where we will discuss, hey, are there
14 features that our members would really like to have,
15 we will consider the cost, we will consider the
16 interest in those and decide what to do, when to
17 enhance the service.
18 Problems and support. Over the next couple
19 of weeks I would ask for your patience. There is
20 going to be a tremendous amount of activity and phone
21 calls to us in the next couple of weeks about these
22 user names and passwords and just people getting
23 familiar with the service and learning the ropes and
24 how to search. So I won't be surprised -- we have
25 scheduled Monday, we have got 12 front line people on
1 the phones. We have alerted the whole staff that they
2 might be called upon to answer the phones, but we've
3 still got a limited number of lines coming in, and so
4 we are expecting a lot of activity as people get on
5 board, and I am sure, as with any software product,
6 there might be some wrinkles or glitches. Send us an
7 e-mail, we can fix it. I mean, there can be always
8 broken links and things or something get out of
9 kilter, but we will get the wrinkles ironed out.
10 I have used it in test periods. Our staff,
11 our legal staff had a week of doing rigorous testing
12 of it, testing their searches, comparing them to the
13 same search on Lexus and West Law. We feel real good
14 about the reliability of it, but you have to follow
15 the search rules. You do have to take the time to
16 look at those search tips, and we will keep -- again,
17 if things come up that we haven't thought of in terms
18 of explanations of how to do searches to get the best
19 results, we are expecting feedback from our users to
20 help us to improve those search tips. I mean, again,
21 the nice thing about the web is when we have new
22 information we can put it right into the search tips,
23 post those right away, and it will be available to
25 So we are excited and if you have questions I
1 can field those if we have time. Thank you very much.
3 CHAIR LEVY: Like I say, we have been
4 talking about making services available to members.
5 They have been working at it, and I think they have
6 succeeded more than admirably.
7 I want to bribe everybody by telling you a
8 little bit about lunch, but if you want to stretch in
9 place without leaving the room while I do so, this
10 would be a good time to just stand up and stretch your
11 legs. But I wanted to let you know that what we are
12 waiting for here is not a boxed lunch with a cold
13 sandwich and a little plastic thing full of cold slaw
14 as we are kind of accustomed to. You may have noticed
15 that the breakfast buffet did not have the fresh fruit
16 and some of the things that have been here in the
18 What we decided to try, based upon input
19 after we had a hot lunch at the law school, was to cut
20 back on the breakfast and to put the money towards
21 lunch. So for lunch -- and we will find out, if
22 necessary, if we can grab it there and bring it here
23 or if we will indeed eat it there, but for lunch
24 today, wild mushroom bisque followed by two types of
25 salad, antipasto platter, penne pasta, chicken
1 parmesan vegetable lasagna, squash, two types of
2 bread, crispy Italian, and then that other Italian
3 with that long F word that I am afraid to pronounce in
4 public, jumbo cookies, fudge brownies, coffee and tea.
5 So hang on, hang in there. We are working
6 towards something that should be worthwhile, and I
7 would invite you each afterwards to give us feedback
8 as to whether you think for the future that was a good
9 decision to cut back here and add it to there and get
10 us something that we could really call a lunch or if
11 you've got some other idea, but we can't have a whole
12 lot of extra money, but we can move around the money
13 we do have.
14 With that, I would like to introduce, and I
15 think what I will do is I will have them, I will
16 introduce them both at once and have them take the
17 mike separately, Dustin Ordway and Vince Romano, two
18 of our members who have been asked to serve as
19 liaisons to sections who we have asked today to come
20 to us and briefly let us know what it is those
21 sections are up to. So if Dustin will take the
22 microphone first, either come up here or grab one on
23 the floor, whichever is more comfortable for you. Did
24 Dustin not make it today? I thought I saw him
25 earlier. Okay, Vince.
1 MR. ROMANO: Are we still morning? Good
2 morning, everyone. Nice to meet you. I have been
3 involved with the Law Practice Management Section for
4 about ten years now, a member of its counsel for that
5 length of time. I am the current vice chair. I guess
6 that puts me two heartbeats away from chair, and
7 section treasurer, so I have been involved with this
8 section for quite some time. I can tell you a bit
9 about what we do.
10 We typically market ourselves as being every
11 Michigan lawyers' other section. Just as you might
12 belong to one of the substantive sections to, you
13 know, reap that valuable expertise that your
14 colleagues can provide, so can we provide a lot of
15 valuable resources and materials to help make your
16 practice more efficient, more economical, more
17 economic and more profitable.
18 We do that by providing an awful lot of
19 resources and materials. Some of the resources
20 include regular programming at the annual meeting, and
21 that will frequently include both the expertise that
22 our counsel and our section can bring to the floor,
23 but also recognize national experts. We have had some
24 excellent programs at the annual meeting, and those
25 materials are still available. Most of it is still
1 current stuff and is available on the section site.
2 We also provide, we developed a seminar that
3 we have taken around the state called the Nuts and
4 Bolts of Successful Law Practice, and we have the
5 program materials and so forth. We have done that
6 particular presentation throughout southeast Michigan,
7 we have done it in Ingham County, Genesee County,
8 Grand Rapids, and, as I look about and see some
9 familiar faces from those presentations, let me
10 mention that any of you that are involved in your
11 local Bar associations and would be interested in
12 having that program, you can reach me online,
13 Vinceromano@aol.com. I would be happy to, you know, put
14 that kind of planning in motion. We will bring that
15 particular show to you. I am sure you would be happy
16 with it.
17 You have heard -- well, I was happy to see
18 Lynn here just before me. We are also a co-sponsor,
19 you have these programs, this announcement in front of
20 you regarding ICLE's new solo and small practice
21 institute. You will see we are co-sponsor of that in
22 providing some of the expertise.
23 As most of our sections, State Bar sections
24 do, the Law Practice Management Section publishes
25 quarterly newsletter addressing practice management
1 issues, and then I would be remiss if I didn't tell
2 you what really becomes our big piece every three
3 years. Every three years for the past 28 years, that
4 makes it one of the longest section activities,
5 longest lived section activities in the State Bar, we
6 have conducted a survey of the economics of law
7 practice in Michigan, and it's really the source for
8 information for planning, planning and reference tool
9 for those of you involved in the management of your
11 Basically the survey allows -- you will find
12 yourself and your circumstances in that survey
13 portrayed in such a way that you can compare those
14 circumstances to your colleagues in virtually any
15 setting. If it's an economic issue involving the
16 practice of law, it's covered in this survey. We
17 cover the demographics of the practice, income -- I am
18 just giving you the highlights. Each of these areas
19 is broken down -- income, billing rates, what people
20 are paying for staff, what people are paying
21 attorneys, associates, what they are earning, a
22 thorough picture of the economics of law practice.
23 You would have seen part of that in the
24 November issue of the Bar Journal which has several
25 articles resulting from the survey. You can now see
1 it in an excellent compilation that is for sale
2 through the State Bar. You know, you can go online
3 and find it. Again, it's an excellent resource tool.
4 We renew this survey every three years.
5 We are in the process of doing some of our
6 own strategic planning to better, let me say,
7 coordinate our section, you know, with what we need to
8 be and how we need to accomplish our goals and mission
9 relative to the reorganization of the State Bar and so
10 forth to keep ourselves, you know, relevant to that.
11 That strategic planning effort has involved John and
12 Tom Byerley. They were kind enough to join us for
13 most of a Saturday several months back. That process
15 So the Law Practice Management Section I am
16 very happy to report to you is very alive, very
17 healthy, we have a lot to offer to our colleagues.
18 You have my e-mail address if you perceive any way
19 that we can, you know, deliver those kinds of
20 services, facilitate that mission in your bailiwick,
21 give me a call. We would be happy to do that.
23 CHAIR LEVY: I am going to have to look
24 later and see if I excused Dustin. I apologize for
25 pronouncing his name wrong. Nobody tell him.
1 Moving on to Assembly Committee reports. We
2 have several standing committees that serve the
3 Assembly. We have asked the chairs of several of
4 those committees to report to you what they have been
5 up to. Terri Stangl is here from Assembly Review, Tom
6 Rombach from Nominating, which he has already reported
7 on for the most part but wants to talk about awards,
8 and then Ed Haroutunian, Special Issues. So if Terri
9 would begin.
10 MS. STANGL: Good morning. On my way here I
11 heard about the astronomical event where all the
12 planets were aligning the next few days, you may have
13 read about that, and I felt like after hearing the
14 remarks from our earlier leaders that there is an
15 alignment, because what I am going to tell you about
16 the Representative Assembly fits in very nicely.
17 For those of you who don't know, the Assembly
18 Review Committee is charged with reviewing and making
19 recommendations about how to improve the operations of
20 this body to serve you and to help you serve the
21 circuits that you represent.
22 This morning I am going to tell you about
23 three topics that we are currently working on and then
24 also ask for your help so we can do our business
1 The first topic that we are working on is
2 looking at how the Representative Assembly
3 communicates with you, how your leadership
4 communicates with you, and how you might want to
5 communicate with each other in between our meetings.
6 We are trying to find out what kinds of
7 information would be helpful for you to receive
8 between meetings and whether there is any kind of
9 dialogue or discussion that may be useful to have
10 before you actually get to these meetings.
11 So we are very curious about your thoughts
12 about what some of those needs may be, or you may say,
13 I already get enough information, please don't send me
14 more, and that would be useful to know as well.
15 Once we know what kinds of information you
16 would like, we are also looking at what would be the
17 best ways to provide it to you, whether that would be
18 through electronic means, bulletin boards, or some
19 other method, so we would like to hear about that.
20 And then once we have this information we
21 will be looking at the cost of meeting any needs that
22 seem to be there and coming back to you with any
24 The next topic we have been looking at is a
25 perennial one for the Assembly, and that's the
1 question of dealing with vacancies. As you know,
2 looking through our list, there are periodically
3 vacancies that we are trying to struggle with filling,
4 frequently, but not always, from the more remote
5 areas, and so the Review Committee is asking ourselves
6 are there things we could do to better recruit and
7 support and help people recognize how important it is
8 to be a part of the Assembly and support them so they
9 really might want to join.
10 So you all are here. It's like preaching to
11 the choir, but you may know what would help you be
12 here and stay here and what might recruit other
13 members in the Bar to join us.
14 There is a survey of a nice, bright pink
15 document that was in your packet this morning. We
16 would really welcome any thoughts, ideas you have.
17 There is a box with a bright pink sign on the back
18 where you can put it in, and if you want to think
19 about it and would like to submit something later -- I
20 hope you do it today, it's always easier to do it the
21 same day -- you could fax it in to Glenna or you can
22 send ideas to me by e-mail.
23 The third topic that we are going to be
24 working on in the committee is one variation on
25 vacancies, which is the question of what happens when
1 an Assembly member who was involved in the military or
2 national service is called up, and once in a while
3 this does happen. And increasingly in our current day
4 and age we don't know how long that's going to be.
5 They could be gone months or a year or more.
6 So the question is should that position be
7 left vacant, should that position be refilled in some
8 way, or should we consider some kind of an interim
9 appointment so the circuit could have representation?
10 And there is a work group of the committee looking at
11 this, and if you do have any thoughts on those, please
12 feel free to send it to me.
13 All the committee members are up on the
14 website with our names and e-mail. Also, my name is
15 on the back page for another item, on item 12, if you
16 want to pull it off from there.
17 So thank you very much for helping us, and we
18 hope to bring you back some thoughts based on your
21 CHAIR LEVY: I just wanted to thank
22 Matt Abel, who is responsible for making sure that we
23 didn't forget the communication issue and that people
24 are looking for a way to reach each other between
25 meetings and kept us from letting that slip away, so
1 thank you.
2 MR. ROMBACH: Two topics I would like to
3 cover today, the first being the vacancies, becomes
4 semi-redundant here with Dan's comments and Terri's as
6 It's always an ongoing cause for concern and
7 certainly one of the unfulfilled items that I had left
8 over from my chairmanship. I think the fairest method
9 that we could come up with for filling the vacancies
10 in the Representative Assembly is by recruiting
11 candidates right this moment to run for positions in
12 the upcoming elections. That way we don't have to go
13 about nominating people that are friends and relatives
14 to fill the seats here. Again, I would like to
15 recruit friends and relatives, of course, to fill the
17 Our committee will contact all the
18 Representative Assembly members that are eligible for
19 reelection to determine their intentions, and then
20 would try to recruit the lawyers to fill the vacancies
21 here in April. In front of you, you have got a list, I
22 believe, of the members that are up for reelection.
23 As Dan said, also included is the petition. So if you
24 appear on this list, we expect you to fill out this
25 petition, and if you see vacancies in your particular
1 area, we would be particularly interested in hearing
2 from you. And also for the term limited members, for
3 instance I know the 31st circuit both of our members
4 are leaving the same year, and I would like to make
5 sure that you can replicate yourselves, because that's
6 always a particularly difficult mission when we don't
7 have any remaining members.
8 As you can see, sometimes it's in those areas
9 where we only have one member that we can't find that
10 person to replace a retiring member or somebody that's
11 term limited. So we would like to have you take
12 particular note of these opportunities.
13 If you have any discussions after reviewing
14 that list, please, by all means, contact me or another
15 member of the committee with these suggestions.
16 Certainly all of them are welcome. And if you have
17 some intentions as far as not rerunning for your seat,
18 please see me before you leave here today. Otherwise
19 we may be replacing you nonetheless, so we wouldn't
20 want to do that.
21 Secondly, the other item I want to touch
22 upon, and, again, this is going to be a bit redundant.
23 You may have in front of you a Michael Franck Award
24 and the Unsung Hero Award as far as a handout. There
25 is additionally those items replicated in the awards
1 and nominations booklet.
2 Now, these two items, and there is
3 applications in here, these two items are specific to
4 the Representative Assembly. We have given out the
5 Michael Franck Award for a number of years. It's been
6 very good at gaining attention for the Assembly and
7 also recognizing those members of our profession that
8 have made an outstanding contribution to its
10 Last year, in fact, Wally Riley, our past
11 State Bar president and ABA president received the
12 award, along with Justice Marilyn Kelly for her
13 contributions to our profession as an Assembly member
14 and also through the appellate court system.
15 New this year, however, is the Unsung Hero
16 Award. In evaluating some of the applications in
17 years past we have come across the fact that there is
18 a lot of dignitaries that get nominated by a number of
19 different groups, but then there also seems to be
20 other lawyers that have been working diligently behind
21 the scenes, certainly been a credit to the profession
22 and that have really made an extraordinary commitment
23 to benefit others, both in our profession through
24 mentoring and also outside the profession, and since
25 they always seem to be overlooked by the big names
1 that get the Michael Franck Award, we felt this year
2 we would try to recognize these people in the trenches
3 that serve with us each and every day.
4 So, again, that's a new award. We have had
5 nominations in the past that we thought were
6 particularly meritorious but couldn't pigeonhole them
7 into something that we already had, so we created it.
8 So I would be particularly interested in any
9 nominations that the folks here may have with regards
10 to this role.
11 And, finally, I just want to recognize the
12 members of the committee that would be particularly
13 busy in this month to come, because we are going to
14 have to put all this together in fairly short order.
15 I would note, however, that the nominations for the
16 awards aren't due until July 26, but we would prefer
17 them to be in a little bit early, otherwise we start
18 making up the nominees ourselves on July 27th.
19 The Nominating Awards Committee consists of,
20 aside from myself, Shawn Davis from Muskegon, Tom
21 Evans from Hastings, Gary Giguere from Kalamazoo,
22 Dennis Grenkowicz, former commissioner from Alpena,
23 and Steven Taratuta from Detroit. So, again, please
24 buttonhole them as well if you have any ideas.
25 Thank you very much or your rapt attention.
2 CHAIR LEVY: I would like to thank Tom
3 and note we are still working on the question of who
4 you name an award after if you are only going to give
5 it to people that nobody has ever heard of.
6 MR. HAROUTUNIAN: Thanks, Mr. Chair. The
7 Special Issues Committee of the Representative
8 Assembly really, as Dan Levy indicated, deals with
9 some of the larger policy concerns, and, as Scott
10 Brinkmeyer mentioned, we also took a look at the
11 boring ABA meeting of this past August 2003, and we
12 also took a look at, in part, at the kind of general
13 comment of putting, as John Berry said, putting the
14 resources of the Bar and those things that affect the
16 We are going to use a -- and the Special
17 Issues Committee has had a chance to meet on several
18 occasions, really by telephone conference. We have
19 had a chance to review some things, and let's, by
20 Power Point presentation, let's go through some of
21 those kinds of issues that we have talked about in our
22 analysis, and this is really in the form of a report.
23 We took a look at three kinds of items, the
24 ABA Justice in Jeopardy Report, which was a lengthy,
25 lengthy report out of the ABA that was adopted in
1 August of 2003, Michigan Senate Joint Resolution G,
2 and also issues concerning the Michigan delegates to
3 the ABA House of Delegates.
4 The Justice In Jeopardy Report, again, was
5 adopted in August of 2003, set forth certain
6 principles for judges and essentially concluded that
7 the judiciary and the other branches of government
8 should really interact effectively. There were two
9 primary recommendations coming out. One was to
10 preserve the judiciary's institutional legitimacy, and
11 the second was to improve judicial selection.
12 On those two recommendations, the first was
13 preserve the judiciary's institutional legitimacy, and
14 this was through qualification, training, and
15 evaluation with regard to those judges' ethics and
16 discipline, diversity in the bench, and court
17 community relations.
18 The second was improving judicial selection,
19 and this was based on the commission-based appointment
20 system, as well as there were other alternatives set
21 forth, but that was the primary thrust.
22 The analysis that the Special Issues
23 Committee went through with regard to that ABA report
24 really focused on the kinds of things that we here in
25 the Representative Assembly or at the Board of
1 Commission level have kind of already addressed, and
2 in April, on April 27 of 1996, the Representative
3 Assembly had adopted ten basic goals with regard to
4 the State Bar of Michigan's Long-Range Committee, and
5 they included efficiency of the justice system,
6 independence of the Bench and Bar, professionalism and
7 competence of the Bench and Bar, public understanding
8 of and respect for the justice system and the legal
10 The Representative Assembly also approved the
11 State Bar of Michigan's long-range plan on
12 September 12th, and at that particular -- at the
13 Representative Assembly meeting in 2001, September,
14 the Representative Assembly urged that the Michigan
15 Legislature, the Supreme Court, the State Bar, its
16 Board of Commissioners, the staff prioritize certain
17 programs that educate voters as to the workings of the
18 judicial system and the background, experience,
19 qualifications of the candidates, and in addition, and
20 this is kind of a point of contention with regard to
21 the ABA's position, the State Bar endorsed a system
22 for the election of judges in all Michigan state
23 courts which reduces to the greatest degree possible
24 the politics of the judicial selection process, and, as
25 I say, that particular point is contrary to the ABA
2 In addition, on April 27 of 2002 the Rep
3 Assembly resolved that the governor should call upon
4 the State Bar to assist in screening candidates for
5 judicial appointments when vacancies occur and that no
6 judicial appointment should be made by the governor
7 unless the State Bar has received adequate time and
8 opportunity to really screen each of those candidates,
9 and the State Bar should dedicate sufficient resources
10 to continue its process of screening candidates for
11 judicial appointments in the manner that's fair and
13 The analysis of the Special Issues Committee
14 in this regard was that really no action was needed.
15 The ABA report, to be sure, is informative, but it is
16 not binding on State Bar associations, and, in addition,
17 the State Bar through the Representative Assembly has
18 really taken a good number of positions already on the
19 issues that have been presented.
20 We went on -- let's move on to the second
21 particular point, which was Senate Joint Resolution G.
22 This was presented in the Michigan Legislature in
23 February of this year. The proponent was Senator Mike
24 Switalski, democrat out of Roseville. He proposed
25 that a constitutional amendment be put forward where
1 the governor would appoint Supreme Court Justices for
2 a single 14-year term. The Senate must approve the
3 gubernatorial appointment by a two-thirds vote.
4 In the case of a vacancy due to an expired
5 term, the governor shall appoint a judicial nominee 60
6 days prior to the vacancy or within 60 days if the
7 vacancy is due to death, removal, or resignation. If
8 the governor fails to make that appointment within
9 that 60 days, then the Senate will make the
10 appointment by a two-thirds vote.
11 The analysis that the Special Issues
12 Committee wanted to bring to this was that, in fact,
13 the State Bar, again on September 13th, 2001, urged
14 the Michigan Legislature, the Supreme Court, et
15 cetera, et cetera, to really prioritize its programs
16 and to educate voters, and, in addition, that the
17 State Bar endorses a system for the election of judges
18 in all Michigan state courts. So to that extent the
19 State Bar of Michigan's policy is contrary to the
20 position being put forward.
21 Again, the Special Issues Committee felt that
22 no action was needed on this particular Resolution G,
23 one, because the State Bar has already taken a
24 position on the issue, and, secondly, Resolution G is
25 unlikely to succeed.
1 The history is that Senator Switalski has
2 unsuccessfully proposed the same resolution last year,
3 and, in addition, Senator Ken Sikkema, and in the
4 interest of full disclosure, Senator Sikkema is a
5 Republican, just to make sure I made that disclosure,
6 unsuccessfully proposed similar resolutions in 1999
7 and 2001.
8 To date there are no co-sponsors for this
9 Resolution G. It requires a two-thirds vote of both
10 houses to pass, and Resolution G has been referred to
11 the Senate Committee on Government Relations, and no
12 other activity has been anticipated nor to my
13 knowledge been scheduled.
14 Finally, it's pretty tough to amend the
15 constitution and at the same time take away people's
16 rights to vote, and so that's kind of where that
17 particular issue is.
18 The last issue was the issue of the Michigan
19 delegates of the ABA House of Delegates. The Michigan
20 ABA delegates are essentially the State Bar President,
21 State Bar Executive Director, a member from the Young
22 Lawyers Section, four lawyers appointed by the Board
23 of Commissioners, and then there are other folks who
24 come from affinity Bar associations. As an example,
25 the Greater Detroit Metropolitan Bar Association, the
1 Federal Bar Association, and others. But the ones
2 that we have placed asterisks by are the ones that
3 essentially represent the State Bar of Michigan.
4 There is a policy with regard to the ABA
5 delegates in terms of positions taken by the State Bar
6 and how that's to be interacted. In April of 1990 the
7 Board of Commissioners indicated that it was the
8 policy of the State Bar not to instruct its appointees
9 to the ABA House of Delegates as to how to vote, and
10 the committee felt that this was an issue that perhaps
11 between now and the next meeting of the Representative
12 Assembly, that this was something that we really ought
13 to perhaps take a look at and at least talk about in
14 terms of advising delegates to the ABA of the
15 relevant, existing State Bar of Michigan provisions,
16 resolutions. On the other hand, requiring a vote
17 consistent with the existing policy or require
18 accountability and reporting back of the ABA delegates
19 to come back to the Representative Assembly and report
20 in terms of what it is that's gone on and what kind of
21 votes occurred.
22 Again, these are not positions that we have
23 really taken at this time. These are positions that
24 we are going to talk about and hopefully come back to
25 you at the next meeting with recommendations with
1 regard to that.
2 Finally, I want to thank the committee
3 members who really have been very, very helpful.
4 Their names are listed there, as well as the officers,
5 and everyone on the committee has been very, very
7 I want to give a special note of thanks to
8 Elizabeth Jamieson for her assistance in putting
9 together this Power Point presentation.
10 And, finally, here is the punch line to all
11 this. If you are interested in any of the issues that
12 we have talked about or if you have other kinds of
13 issues that you believe the Special Issues Committee
14 ought to be considering, please don't hesitate to
15 contact any of the members, any of the folks' names
16 that you see there on the screen, including myself, so
17 that we can take that and we can present it, talk
18 about it, and determine whether or not we should go
19 forward, because that's what this is all about, and in
20 that regard, Mr. Chair, I thank you.
22 CHAIR LEVY: Thanks, Ed. In terms of a
23 gubernatorial appointment process, totally coincidence
24 that it was republicans up until two years ago that
25 were introducing the legislation and now it's
2 MR. HAROUTUNIAN: One never knows, Dan.
3 CHAIR LEVY: On to, believe it or not,
4 reports with recommendations, positions presented to
5 us. Item 11 on the agenda is consideration of
6 proposed amendment to MCR 2.112(K) dealing with the
7 non-party fault issue that I am sure they will explain
8 better than I could, so I will introduce Victoria
9 Valentine, who is the chair of the section,
10 Civil Procedures and Courts Committee, who is
11 presenting it to us.
12 MS. VALENTINE: Good morning. Again, I am
13 Victoria Valentine. As an outsider, not a member of
14 the Representative Assembly, I would like to commend
15 all of you on this important and impressive
16 organization. This is the first time I have been to
17 one of your meetings, and I can say that I am
18 absolutely thrilled with the support and the
19 attendance and the organization of this committee. I
20 commend you all.
21 I do have one complaint. Mr. Levy previewed
22 lunch, and I have lost focus of the issues today. I
23 am thinking mushroom barley, bread, salad. Did you
24 say there was a brownie? That was the worst.
25 I am here today as a visitor on behalf of the
1 State Bar of Michigan Civil Procedure and Courts
2 Committee, and specifically we would like to present
3 to you the issue of nonparty fault.
4 I would like to take this opportunity to
5 explore the conflict between MCR 2.112(K) and the
6 statutory provisions. The subject of these provisions
7 deal with the nonparty fault and the empty chair
9 In 1995 Michigan underwent a transformation
10 of tort law. The tort reform for the most part
11 abolished joint and several liability. In concert
12 with the abolition of the joint and several liability,
13 the legislature enacted statutory laws to give notice
14 of nonparty fault so that parties that shared in
15 liability could be identified and joined in suit.
16 Subrule K of MCR 2.112 was necessitated by the change
17 in tort law and was designed to protect parties from
18 undue surprise and unfair tactics in litigation.
19 There are, however, several conflicts between the
20 statutes and court rule.
21 I believe that if you turn to the section
22 that is identified as MCR 2.112 in your handout you
23 will see what the Civil Procedure and Courts Committee
24 has passed as their proposal to the State Bar of
25 Michigan for the amendment to the court rule.
1 The first change would be under Section
2 2.112(K)(3)(a) and it strikes "against whom a claim is
3 asserted." The elimination takes out the variance
4 between the rule and MCL 600.2957(2). The court rule
5 states "against whom a claim is asserted," whereas the
6 statute does not have such language.
7 The second section, MCR 2.112(K)(3)(b), takes
8 out "shall designate the nonparty and set forth," and
9 instead change that to must contain the following,"
10 and number one would be, The nonparty's name and last
11 known address, or the best identification of the
12 nonparty that is possible, and, two, which is a
13 completely new section that was added, A factual and
14 legal basis sufficient to enable a party to plead a
15 claim against the nonparty for liability on account of
16 the nonparty's fault.
17 These changes require more detail, and
18 general notice is insufficient in identifying a
19 nonparty fault.
20 The person -- this needs to be more
21 specifically identified so that as to the party at
22 fault as to why that person is at fault. Otherwise
23 it's unfairly prejudiced the plaintiff.
24 Under Section 2.112(K)(3)(c), again a new
25 section, A party giving notice under this subrule must
1 act in good faith. And what we have done is added a
2 reference to MCR 2.114(C)-(E), which is the sanction
3 rule. I am sure most of us have references to this
4 rule as it relates to opponents, but this provides for
5 sanctions for persons who sign a pleading or paper
6 with regard to where there is no cause for such to be
7 an asserted.
8 You will note that this court rule does not
9 assess punitive damages, so it's not as strong a tool
10 as some would like.
11 The next section is just a renumbering of
13 The next section would be 2.112(K)(e), which
14 states, On a motion of a party, the court must strike
15 a notice that does not comply with subrule (b) or (c),
16 and Section 2.112(K)(4) states, Amendment adding
17 party, and now is changed to, Upon motion of a party
18 or submission of a stipulated order within 91 days
19 after service of the first notice complying with
20 subrule (3)(b) identifying a nonparty, the court shall
21 grant leave to the moving party to file and serve an
22 amended pleading alleging one or more causes of action
23 against that nonparty.
24 This does two things. Number one, it adds
25 the alternative of submitting a stipulated order
1 rather than filing a motion, and, second, provides that
2 the 91-day time period begins to run after service of
3 the first notice complying with subrule (3)(b)
4 identifying a nonparty rather than after
5 identification of a nonparty.
6 I did ask Mr. Levy for privileges to bring a
7 motion. I am not sure if I was granted those
9 CHAIR LEVY: Yes, as a chair you have.
10 You don't get to vote, you just get to move.
11 MS. VALENTINE: Come on. Is there any
13 CHAIR LEVY: First off, do I hear a
15 VOICE: Second.
16 CHAIR LEVY: Are there questions about
17 the proposal itself? Sections and committees were
18 asked to speak too if they have comments.
19 MR. ABEL: Matt Abel, 3rd circuit. I have a
21 CHAIR LEVY: Okay.
22 MR. ABEL: Much as I hate going to court when
23 I don't have to, isn't there a way to prevent this
24 upon motion of a party and just to make it automatic
25 where you are entitled to file an amended complaint
1 and add the party without leave of court? It seems to
2 me that this requires you to either get a stipulated
3 order or to seek and obtain permission of leave of
4 court, which shall be granted. Maybe there is a way
5 to make that automatic.
6 MS. VALENTINE: I can't speak to what the
7 court procedures would be, but if it's an unopposed
8 motion some courts and some judges do not require you
9 to come to the courthouse.
10 MR. ABEL: That would be nice. I don't do
11 that here. I just do criminal defense, so it doesn't
12 affect me, but that's my opinion. Thanks.
13 CHAIR LEVY: Do we have comments from
14 sections or committees? Comments from members of the
16 MR. MILLER: Thank you, Mr. Chair. Randall
17 Miller, 6th circuit. Picking up on what Mr. Abel
18 said, and he hit it right on the head, right now under
19 the rules you have 90 days to file an amended pleading
20 as of right. I happen to love everything that was
21 done by the committee, what was proposed here, except
22 for number four. It is now shifting the burden back
23 to the plaintiff to file an amended -- or to file a
24 motion to get something done that as of right now is
25 automatic. We are now imposing something on the party
1 that's not moving to add these nonparties. I don't
2 see what the point of forcing a motion upon plaintiffs
3 in the situation accomplishes.
4 I would propose a friendly amendment to
5 remove that and shift it back to the current standard,
6 which is you have 90 days as of right to file the
7 amended pleading.
8 CHAIR LEVY: Is there a second to the
9 motion to amend?
10 VOICE: Second.
11 CHAIR LEVY: You now have the choice of
12 accepting it as a friendly amendment or we have a
14 MS. VALENTINE: I would like to comment, if I
15 could. With regard to MCR 2.112(K)(3)(a), you will
16 notice that a party, that one of the amendments to the
17 section is that a party against whom a claim is
18 asserted has been stricken, so that this would no
19 longer just be against a person who a claim has been
20 asserted. Okay.
21 With regard to section four that you pointed
22 out, the motion to file the amended pleading adding a
23 person identified as a nonparty at fault is identified
24 MCL 600.2957(2), which the statute requires upon a
25 motion by a party within 91 days after identification.
1 We are trying to make them consistent.
2 CHAIR LEVY: Does that address your
4 MR. MILLER: Not exactly. We are still in
5 the same boat.
6 MS. VALENTINE: He said you need to be at a
8 MR. BARTON: Bruce Barton, 4th circuit. I
9 want to speak to the proposed amendment, if I may.
10 The way this proposal reads, apparently, is that if the
11 plaintiff -- if an amendment is not granted, then the
12 plaintiff in the trial might not say there is another
13 party at fault but certainly is going to hint at it,
14 is going to tell the jury, the defendant rather is
15 going to tell the jury we are not at fault, and you
16 may get tied into a situation where the judge has
17 ruled that you can't add the third party, but the
18 third party is very much in the trial.
19 I would suggest that if the plaintiff, if the
20 parties feel that there is a third party, it should be
21 automatic that he can be brought in.
22 CHAIR LEVY: You were speaking in favor
23 or against the amendment?
24 MR. BARTON: In favor.
25 CHAIR LEVY: Any other discussion on
1 the amendment?
2 MR. DEWANE: John Dewane, 3rd circuit. I
3 understood the prior speaker to say it was automatic
4 that you got to file it. As I understand the case law
5 currently, it's not automatic, you have to file a
7 CHAIR LEVY: So that would be opposed
8 to the --
9 MR. DEWANE: Amendment.
10 CHAIR LEVY: -- amendment.
11 Other comments on the amendment? As the
12 moving party, do you want to speak to the amendment
13 itself before I put it to a vote?
14 MS. VALENTINE: I also would be in favor of
15 the amendment.
16 VICE CHAIR JAMIESON: In favor?
17 MS. VALENTINE: In favor of the amendment.
18 With regard to -- the problem is that we have
19 a ruling on the Staff versus Johnson 242 Mich App 521,
20 and an issue might be the conflict between the statute
21 and the court rule. That law does currently state to
22 my understanding that the court will prevail as it
23 governs practice and procedure. I do believe that the
24 amendment would cover practice and procedure and not
25 something substantive.
1 CHAIR LEVY: So the question becomes
2 whether we want to ask the court to overrule itself.
3 MS. VALENTINE: And by amending the court
4 rules, I believe that that would be --
5 PRESIDENT BRINKMEYER: Point of order.
6 Scott Brinkmeyer, 17th circuit. Do I understand then
7 that this has been accepted as a friendly amendment?
8 CHAIR LEVY: No.
9 VICE CHAIR JAMIESON: That was my
11 CHAIR LEVY: My understanding, please
12 correct me if I am wrong, was that they like the idea
13 of it but that they wrote the rule to conform with the
14 current case law in hopes that the court would grant
15 what they felt was more important rather than opposing
16 the current case law which says you need to make the
18 PRESIDENT BRINKMEYER: But the proponent
19 would be in support of the proposed amendment, is that
20 what I understand?
21 MS. VALENTINE: Yes.
22 CHAIR LEVY: So you want it voted on,
23 you accept the amendment?
24 MS VALENTINE: Can you tell me --
25 CHAIR LEVY: The amendment itself
1 was --
2 MS. VALENTINE: Can you tell me the specific
3 language of your amendment, please.
4 MR. MILLER: Randall Miller from the 6th
5 circuit, and, again, I want to thank Mr. Abel.
6 Criminal defense or not, he has a very keen eye for
7 this issue, and he actually drafted this for me, so I
8 appreciate that.
9 Take a look at number four, if you start with
10 the word "within," right before "91 days," it would read,
11 Within 91 days after service of the first notice
12 complying with subrule (3)(b) identifying a nonparty,
13 remove the words "the court shall grant leave,"
14 picking back up with "the moving party may file,"
15 remove the word "to," add the word "may," may file and
16 serve an amended pleading alleging one or more causes
17 of action against that nonparty.
18 MR. ABEL: Those other words, "to the moving
19 party," also go. So it would say, A party may file
20 and serve an amendment.
21 MS. VALENTINE: Now that I understand what
22 your amendment is, I cannot agree to the friendly
23 amendment due to the case law of Williams versus
24 Arbor Home, hence the provision of the statute which
25 we are trying to make it consistent with, which is
1 600.2957(2), which requires upon a motion filed within
2 91 days after identification.
3 CHAIR LEVY: So the amendment is still
4 not accepted as friendly?
5 MS. VALENTINE: Correct.
6 CHAIR LEVY: So we will be putting the
7 amendment -- the amendment is correctly on the board
9 MR. MILLER: We have to remove the words "the
10 moving party" to "a party," or at least "moving," because
11 we are not moving any longer.
12 VICE CHAIR JAMIESON: Remove "the" and
13 insert "a."
14 MR. MILLER: Correct.
15 CHAIR LEVY: Now that we have had
16 everybody's input, the moving party, that is correctly
17 what you were proposing?
18 MR. MILLER: It looks that way, yes.
19 CHAIR LEVY: We are done with this
20 discussion on the amendment. Does everybody
21 understand a vote in favor of the amendment would be
22 to change the language as to what it appears?
23 MR. MILLER: Before we do that, it's been
24 pointed out the phrase should start "Within 91 days."
25 Everything before that should be removed. It was off
1 the screen a moment ago, but upon motion of a party or
2 submission of a stipulated order, correct, then the "W"
3 would become capitalized.
4 MR. DYER: I think, if I understand the
5 amendment that's being proposed, what could occur is
6 you could have a party served a nonparty fault
7 notice -- James Dyer from the 37th circuit.
8 CHAIR LEVY: Discussion is closed. We
9 are just --
10 MR. DYER: Concerning the amendment.
11 CHAIR LEVY: Discussion on the
12 amendment is closed.
13 MR. DYER: I am sorry.
14 VOICE: That's not fair.
15 CHAIR LEVY: Call a motion to reopen
16 and we can take it up.
17 MR. BARTON: Point of order. As I understand
18 it, you are going to have the notice of a third party.
19 You still have to have a motion, the motion from the
20 defendant to add the third party, so you still want to
21 leave that language upon motion of a party or
22 submission of a stipulated order.
23 CHAIR LEVY: I mean, that's addressing
24 the amendment.
25 MR. BARTON: Otherwise you have a situation
1 where the adding of the third party is automatic upon
2 filing of the third party notice. And it -- I suggest
3 that if the defendant doesn't want a third party in
4 for some reason, he should have that option.
5 CHAIR LEVY: Hang on one second. Did
6 we have consensus to reopening the discussion on --
7 VOICES: Yes.
8 CHAIR LEVY: Because otherwise we
9 couldn't be doing that. So then further discussion on
10 the amendment as it's currently proposed.
11 MR. DYER: If I understand the amendment --
12 James Dyer, 37th circuit. You could have a party that
13 identifies a nonparty at fault and at that point the
14 amendment would then automatically open up for any
15 party, whether they have moved to add a nonparty at
16 fault or not. An automatic right to amend the
17 complaint, that makes no sense.
18 MR. MILLER: If I may, the defendant
19 certainly has no right to amend the complaint. If a
20 defendant serves a notice of nonparty fault, the
21 plaintiff would have the right automatically to simply
22 submit an amended pleading without filing a motion.
23 That's what the point of my friendly amendment is. It
24 alleviates tying up the courts and having to file a
25 motion when you already know that you have made the
1 decision as a plaintiff that you want to amend the
2 complaint and incorporate that nonparty into your
4 CHAIR LEVY: Can I make a suggestion,
5 that the two of you sit down and see if there is
6 language you can come up with. We will take up the
7 next item on the agenda and come back to this one.
8 All in favor, hearing no opposition.
9 MR. LARKY: Yes, I oppose. Let's vote.
10 MR. DYER: Call the question on the
12 MS. ROSS: Move to call the question.
13 CHAIR LEVY: I hear support.
14 VOICE: Support.
15 CHAIR LEVY: Question is called. We
16 will take a vote on the amendment, which is as it
18 All in favor of changing the language on the
19 proposal to what appears on the board, please say aye.
20 All opposed.
21 The nays have it.
22 We are back to discussion on the proposal as
23 originally drafted.
24 MR. HOHENSTEIN: Richard Hohenstein, the 6th
25 circuit. Speaking --
1 VOICE: You are the 7th.
3 MR. HOHENSTEIN: I appreciate that. Oh, my.
4 On the rule itself, going to the very
5 beginning, the proposed change indicates a desire to
6 change the language from a party against whom a claim
7 is asserted to just a party, and I don't get the
8 rationale for that, because the only people who would
9 want to file a notice of nonparty at fault, it seems
10 to me, would be defendants. If the plaintiffs wanted
11 to do that, they would just sue them, so I don't
12 understand why you had that.
13 And then if you are going to add that, you
14 have got a problem with subpart D, because it
15 indicates that the notice has to be filed within 91
16 days after the party files his first response to
17 pleading, and only defendants really file responsive
18 pleadings. So at the very least that's going to need
19 to be reconciled, but I don't see the motivation for
20 enabling plaintiffs to file motions of nonparty at
22 Going to subpart (b)(2), I strongly oppose
23 this because you are imposing a requirement that the
24 party that files the notice of fault, rather than
25 doing what's required now, which is to provide a brief
1 statement of the basis for believing the nonparty is
2 at fault, providing a factual basis and a legal basis
3 sufficient to enable the opposite party, the plaintiff
4 in other words, to plead a claim, and it seems then an
5 anomaly in our adversary system to have the opposition
6 giving advice and assistance to its opposition, and
7 how are you going to provide a legal basis sufficient
8 to enable a party to plead a claim against somebody
9 who, in fact, you can't plead a claim against, such as
10 a parent for negligent supervision or a claim that
11 would get around governmental immunity when there
12 isn't any basis for avoiding governmental immunity,
13 because the statute itself says that the individual
14 can be denominated as being a nonparty at fault if
15 one, regardless of whether the person was or could
16 have been named as a party.
17 So I think that's too high a level to impose
18 on the opposition, and, in fact, in some cases my be
19 an impossible level.
20 And the last comment I have has to do with
21 subpart (c), (3)(c), which I think is superfluous or
22 redundant, making a statement in there that the notice
23 has to be given in good faith, because the rules are
24 replete with that requirement. One of the
25 consequences of signing the thing in the first place
1 is to certify that it's well grounded in facts of law
2 under Rule 2.114, so I don't think that's necessary
3 language, and adding things that aren't necessary I
4 think is cumbersome.
5 CHAIR LEVY: Please just indicate
6 at the beginning whether you are speaking in support
7 or opposed as well.
8 MR. POWERS: Barry Powers from the 6th
9 circuit. I am going to speak in favor of the motion
10 to propose that this amendment be submitted, that this
11 amendment to the rule be submitted.
12 As I understand, I think you have to
13 understand the proposal and the context or the
14 purpose, the context of it, which is that you had the
15 status quo of the law prior to tort reform, which was
16 that there was joint and several liability, then you
17 had the statutory framework that modified that
18 substantially, and I think the point is that that
19 modification may be interpreted in this rule as it
20 exists prior to the amendment as providing perhaps an
21 excessive remedy, some sort of an overstatement of
22 that statute. So I think what the committee is trying
23 to do here is to bring them back to equilibrium.
24 In other words, if a defendant is going to
25 say, listen, I am only 50 percent at fault, it's up to
1 the plaintiff to bring in another party to apportion
2 that liability, then it does seem fair to put the onus
3 on that defendant then not to be able to just sort of
4 throw it on a trump card but also to give the
5 plaintiff a basis upon which to bring in another
7 So I think that's what the point of this is
8 trying to accomplish, and so I don't see that it goes
9 too far in putting too much of an onus on the party
10 giving notice. I think what it is, is it sort of
11 balances that out.
12 If the party is going to give notice and play
13 that trump card, then it's only fair that it should
14 have to give something back to the plaintiff just to
15 insure the equilibrium of the system. So I think
16 that's the point of it, and I think it's a skillfully
17 drafted modification, so I would vote in favor of it.
18 CHAIR LEVY: Thank you.
19 MR. GARRISON: Scott Garrison, 6th circuit.
20 I am against the amendment. It is substantive. It's
21 not procedural. If the complaint, if the underlying
22 original complaint in the auto neg, for example, is
23 filed on the day before the statute of limitations
24 runs, 91 days later you have notice of nonparty at
25 fault. You have affected that nonparty's substantive
1 right because the statute has run against that party.
2 To argue that it is procedural and not
3 substantive I think is erroneous, and when you are
4 arguing that it's substantive, then you have to follow
5 the statute.
6 Our Supreme Court has made it abundantly
7 clear that they will follow the statutory law and not
8 necessarily the existing case law. All you have to do
9 is -- my brother counsel, Mr. Abel, is aware -- is
10 look to the criminal law issue of People versus
11 Cornell where they said, yeah, we know, for example, that
12 the case law said you had to give a second degree jury
13 instruction on all first degree murder charges, but
14 the statue from the early 30s or 40s says you can't.
15 We are now saying we are following the statute, old
16 case law be damned.
17 The Supreme Court will follow the statute.
18 The court rules, therefore -- any proposal we make
19 regarding the court rules, therefore, must follow the
20 statute, and I think that this amendment should be
21 changed, because the statute requires a motion;
22 therefore, the court rule should require a motion.
23 CHAIR LEVY: Other comments as to the
24 proposal as presented?
25 MR. HAROUTUNIAN: Mr. Chair, Ed
1 Haroutunian from the 6th circuit.
2 I speak in opposition to the referenced
3 paragraph, which is (3)(b)(ii) where it sets out that
4 instead of the party setting forth a brief statement
5 of the basis for believing the nonparty is at fault,
6 this provision says that a factual and legal basis
7 sufficient to enable a party to plead a claim.
8 I think that, as someone else has spoken in
9 this same vein, but I just wanted to add my comments
10 to it. I believe that to do that is too high a
11 burden. I think that burden is placing that burden on
12 the party that thinks that really the plaintiff has
13 not directed the arrows in the correct direction. I
14 think that that's too high a burden, and I believe
15 that the language that is set forth, which is a brief
16 statement of the basis for believing the nonparty is
17 at fault, is sufficient.
18 But I would also, having made that comment, I
19 would also ask, have there been any problems, that is,
20 that have come up, that would suggest that this
21 amended language is best, or is that the committee's
22 or the section's belief in that regard, or is there
23 something else that's come up that would suggest that,
24 yes, this is a better approach to take?
25 MS. VALENTINE: With regard to the committee,
1 there are several judges on the committee, as well as
2 practitioners, who have been on the Bar for several
3 years. It is the belief, we wouldn't have redrafted
4 it if we didn't think there were problems with it. So
5 my understanding is that on behalf of the Civil
6 Procedure and Courts Committee that we believe that
7 these amendments will help facilitate a more useful
8 use of the tool and court rule, and that's why the
9 amendments are suggested.
10 MR. BUCHANAN: Rob Buchanan from the 17th
11 circuit. I am a civil practitioner. I run into this
12 rule frequently, and I think that -- I am in favor of
13 the amendment. I think that the amendment is an
14 important issue.
15 As a plaintiff, we see defendants use the
16 nonparty fault frequently. I think it's abused. As
17 the original rule states, all they have to do is give
18 a brief statement and they don't ever provide enough
19 information for you to identify who this supposed
20 nonparty is. So I think the amendment is sufficient.
21 If you are going to raise that issue and say
22 someone else is at fault, you have to give enough
23 information so the plaintiff can act upon it, so I am
24 in favor of the amendment.
25 CHAIR LEVY: Do you want to respond to
1 that directly?
2 MS. VALENTINE: As a further comment, what we
3 have noticed happening in the court -- what
4 discussions have been in the Civil Procedure and
5 Courts Committee is that, and you will read in Lawyers
6 Weekly and probably hear about it in practice, is that
7 the plaintiff files a lawsuit, the defendant goes and
8 says, We have a bunch of people who are nonparty
9 fault. They can name seven people from Taiwan, China,
10 Japan, and what happens is the plaintiff comes in and
11 says, Well, I don't have sufficient enough basis to
12 file an amended complaint. You are not giving me
13 enough information. Then the plaintiff comes into
14 court and says, I want a motion to strike, and we are
15 really clogging the court system by not having proper
16 procedures in place to be able to properly identify a
17 nonparty and file a lawsuit on the plaintiff's behalf
18 with regard to these nonparty defendants.
19 MR. DYER: James Dyer from the 6th circuit.
20 I opposed the amendment --
21 CHAIR LEVY: I just want to make it
22 clear, when we say amendment, we are talking about the
23 proposed amendment to the court rule, the entire --
24 the proposal here.
25 MR. DYER: I do, and I would, first of all,
1 would reiterate the comments that -- 37th circuit. I
2 am not good enough for you guys.
3 I oppose it for a number of reasons.
4 Comments have already been made, and I won't repeat
5 them, but the matter that concerns me is the notion
6 that we will get into, under (3)(e), it will get into
7 a situation where the court will strike a notice, not
8 because the party may actually be at fault but because
9 I have not provided a sufficient or adequate basis for
10 the legal, a legal basis for the person to be held at
12 I think the concerns that you have expressed
13 are certainly appropriate, that if I hadn't provided
14 you how to identify that party, that's one thing, but
15 to force me as a defendant to say here is the claim
16 that you are asserting against that party or can
17 assert against that party is an unreasonable burden to
18 place on a person representing a defendant.
19 I have been confronted on numerous cases of
20 where I have had cases that have been filed against my
21 clients where I believe summary disposition is
22 appropriate, yet that places me in the position of
23 having to identify a party that is potentially
24 responsible and then essentially give you the legal
25 basis or support your reply to my motion for summary
1 disposition. That doesn't make any sense to impose
2 that burden.
3 I think legally identifying the person makes
4 sense, but providing a legal basis for the claim does
6 MR. DEWANE: John Dewane, 2nd circuit. I
7 speak in opposition to the amendment for the reasons
8 that many of the previous speakers have already
9 articulated, and, in addition, I think we are going
10 about this the wrong way. I think this is basically a
11 question of the statute controlling over the court
12 rule, and that's what I think that needs to be
13 changed. If there is going to be a change, it's the
14 statute, not the court rule, because I think the court
15 is going to follow what the statute says.
16 MR. REISING: Bill Reising, a proud
17 practitioner from the 7th circuit. I concur in what
18 my brother just said. If you look at the underlying
19 statute which forms the basis for what we are talking
20 about here today, the proposed amendment is
21 inconsistent with the statute, and to that extent, if
22 it's going to be changed, it should be changed by the
23 legislature of this great state, because the Supreme
24 Court is going to follow the statute, and it doesn't
25 matter what the court rule says if it contravenes what
1 the statute says. So I think it's a matter of
2 legislative change if there is going to be one.
3 I have been doing this kind of work for only
4 35 years now. Notice of nonparty at fault has been
5 around for the last few. It hasn't really changed
6 substantially my practice that's virtually hundred
7 percent civil litigation on the defense side, and,
8 believe me, if my worthy opponent thinks there is a
9 reasonable basis to challenge my nonparty at fault,
10 that motion is heard and sometimes granted, sometimes
11 not, and I don't think it's ever going to clog any
12 docket up. It's not going to happen.
13 VOICE: Call the question.
14 CHAIR LEVY: Question has been called.
15 VOICE: Support.
16 CHAIR LEVY: All in favor of calling
17 the question -- I am being told that we need a
18 two-thirds majority.
19 All in favor of calling the question say aye.
21 I am going to go out on a limb and call that
22 two thirds.
23 We will take a vote on the proposal as it was
24 originally presented in the materials.
25 All in favor of adopting that proposal,
1 please say aye.
2 All opposed.
3 I would say that the nays have it. Sorry,
4 but I would encourage the section to consider pursuing
5 the legislative fix.
6 MS. VALENTINE: Okay.
7 CHAIR LEVY: Or if you think you can
8 meet the concerns, coming back to us.
9 MS. VALENTINE: Okay. Thank you for your
12 CHAIR LEVY: We have got two choices.
13 Lunch is set at actual tables with silver and tea cups
14 and things like that. We can go and fetch all that
15 and try and bring it back in or we can press ahead.
16 VOICE: Press ahead.
17 CHAIR LEVY: Okay. Again I am going to
18 go on a limb and say we press ahead.
19 Item 12, I would call Terri Stangl and Miriam
20 Aukerman to present the position. Miriam is chair of
21 a committee's committee. I am not quite sure that
22 that gives her floor privileges. So without
23 objection, I would just like to extend privileges of
24 the floor. Thank you.
25 MS. STANGL: This is Terri Stangl here both
1 in my capacity as Legal Aid chair and also from the
2 10th circuit.
3 This is the last item in your agenda book.
4 This matter came before the Legal Aid Committee where
5 we were looking at the issue of certain juvenile
6 guardianship matters, areas, not abuse and neglect,
7 the process that is used, and it came to our attention
8 that in some areas that judges were not -- were
9 entering ex parte orders without necessarily
10 scheduling a hearing.
11 So Miriam Aukerman of the committee put
12 together a proposal which we, even before it came to
13 this body, we sent out to a number of the sections and
14 committees for comments, and it has been sent out at
15 the same time it went to you.
16 So I am going to turn it over to Miriam to
17 cover the substance of this proposal.
18 MS. AUKERMAN: Thank you, Terri, and thank
19 you all for pressing on. We will try to keep this
20 brief so you can get to lunch.
21 The genesis of this proposal, as Terri
22 mentioned, came out of conversations within the Legal
23 Aid Committee. We had sort of two realizations, the
24 first of which is that the process of issuing ex parte
25 minor guardianships varies widely throughout the
1 state. In some parts of the state ex parte
2 guardianships are granted in virtually every
3 guardianship case. The parents then have to wait
4 weeks or months to get a court hearing to contest the
5 allegations that led to the issuance of the
7 In other parts of the state ex parte
8 guardianships are almost never issued, very rarely, and
9 are promptly followed by hearings. The rule that we
10 are proposing codifies this latter practice.
11 The second realization that the Legal Aid
12 Committee had is that parents whose children are taken
13 from them in guardianship proceedings receive less due
14 process than parents whose children are taken from
15 them in abuse and neglect proceedings.
16 As Terri said, we are not concerned here with
17 abuse and neglect proceedings which are brought by the
18 State but rather by guardianship proceedings which are
19 brought at the request of a nonparent.
20 Unlike an abuse and neglect proceeding, the
21 issuance of a guardianship doesn't require a finding
22 that the parent is unfit. The bases for guardianship
23 have a lot more to do with parental unavailability, if
24 the parent is incarcerated, or has died, or
25 disappeared. It has to do with parents who allow
1 their children to reside with someone else without
2 legal authority, so if you let your kids stay with
3 grandma for a week and grandma decides to go in and
4 get a guardianship, that would be a basis, or with the
5 death of a custodial parent, if the parents were never
6 married, the relatives of the custodial parent may go
7 in and try to get a guardianship over the child in
8 preference to the noncustodial parent.
9 What struck us on the Legal Aid Committee is
10 that a parent can be accused of doing horrible things
11 to their children, abusing them, neglecting them, they
12 get notice and a prompt hearing, but a noncustodial
13 parent who has been involved in the child's life won't
14 necessarily get the same notice and a hearing or
15 someone who lets their child stay with grandma for a
16 week won't necessarily get the same notice and hearing
17 when they are deprived of their parental rights, their
18 parental rights are suspended. We felt that was quite
20 The proposed changes are, the primary change
21 is to MCR 5.403(B). The current rule allows the court
22 to shorten or dispense with notice altogether for good
23 cause. What the proposal does is it allows notice to
24 be shortened for a good cause, but it limits ex parte
25 guardianships where there is no notice at all to
1 emergency situations.
2 Moreover, when notice is shortened or
3 eliminated, the court has to state what justifies
4 shortening or dispensing with notice. It has to
5 explain what's the emergency, what's the good cause.
6 And, finally, when an ex parte guardianship is
7 issued, the court has to hold an automatic follow-up
8 hearing within 28 days.
9 The proposed changes also make two minor
10 changes to, first to MCR 5.104(A)(1). This basically
11 closes a loophole in requiring that ex parte motions
12 and orders and filings are, that there is a proof of
13 service found, that we sometimes see ex parte orders
14 or motions that aren't filed for weeks or months on
15 the parent whose parental rights are suspended.
16 Parents don't even necessarily know that this has
18 Then the other is a minor change to
19 MCR 5.402(C), simply requiring personal service on the
20 parent when there is a minor guardianship. This is
21 where the parents can be located. It simply reflects
22 the importance of the parent/child relationship in the
23 requirement for personal service.
24 What are the reasons for why this change is
25 necessary? Some highlight four points. First of all,
1 the current language of MCR 5.403(B) conflicts with
2 the underlying statute, which is MCL 7005213.
3 MCL 7005213 requires notice and an opportunity to be
4 heard in guardianship cases. As I have explained,
5 that doesn't necessarily happen under the
6 interpretation of the court rule. Part of the reason
7 for this conflict may be that the court rule actually
8 predates the statute and hasn't been amended to
9 reflect the statutory change.
10 The second issue is that the existing good
11 cause language is quite vague. It's obviously being
12 interpreted very differently in different parts of the
13 state and also conflicts with what courts have
14 interpreted parents' constitutional rights to be when
15 their parental rights are suspended.
16 The case law is pretty clear that only an
17 emergency justifies dispensing with due process when
18 you deprive a parent of his or her parental rights,
19 yet, as I said, in some cases this happens pretty much
20 in all guardianship cases. So the rules need to be
21 clearer that ex parte guardianships are really only
22 appropriate in emergency situations.
23 The third reason for the change is that the
24 current rule doesn't provide a lot of guidance about
25 what to do when you do have an ex parte guardianship,
1 when it is warranted. In some cases some counties are
2 following these up pretty automatically with hearings,
3 in other counties that's not happening. It should be
4 clear that there is a hearing that's required when
5 there is an ex parte guardianship. The time frame and
6 the procedures for those hearings should also be
8 And, finally, the requirement that we put in
9 that there be this automatic hearing is an important
10 one. Hearings are critical to identifying story
11 contested facts. I mean, that's true in any area in
12 which we practice, the court should hear both sides of
13 a story before making up its mind, particularly true
14 in a family law area. For those of you practicing
15 family law, you know that there are a lot of wild
16 allegations being thrown around by parties in those
17 sorts of cases, and there is a real risk of error if
18 the court relies on the allegations of only one side
20 So when there is -- sometimes, of course, there
21 is going to be sufficient allegations to warrant an
22 emergency guardianship that's issued ex parte, but
23 when that happens there needs to be a prompt follow-up
25 Just to mention, procedurally we sent this
1 out to -- invited comments from the Family Law
2 Section, Children's Law Section, Elder Law Section,
3 Probate Section, Judicial Conference, and the Probate
4 Judges Association, and so I have gotten not a whole
5 lot of comment back but support for that from a few
6 people and no comment from others.
7 Just to summarize, the proposed rules that
8 are designed to ensure that parents receive adequate
9 due process when their parental rights are suspended,
10 and that's the intention behind the changes that we
11 are proposing.
12 MS. STANGL: In my capacity as representative
13 of the 10th circuit, I would like to move then for the
14 adoption of the resolution that you have before you.
15 VOICE: Support.
16 CHAIR LEVY: Any discussion on the
17 motion, and I would, while you are going to the
18 microphone --
19 MS. KIRSCH-SATAWA: I would like to propose
20 two friendly amendments. Lisa Kirsch-Satawa.
21 CHAIR LEVY: I just want to clarify a
22 question that's coming from our parliamentarian. If I
23 understand correctly, the proposed resolution is just
24 the be it resolved language. The actual language of
25 the court rule changes is suggested, but it is not
1 part of the -- or other language consistent.
2 MS. STANGL: In the resolution it does say --
3 the specific language would be sent to the court, but
4 recognizing that the court may make changes. So we
5 would certainly entertain suggestions.
6 MS. KIRSCH-SATAWA: Then I guess it would be
7 a suggestion as opposed to a friendly amendment.
8 Lisa Kirsch-Satawa, 6th circuit.
9 I am suggesting two things. First of all
10 would be at the end, second to the last sentence where
11 it says, Personal service shall be required, unless
12 the parents cannot be located, in which case, ta-dah,
13 ta-dah, end of the sentence. It says, "or by
14 publication when necessary." I would suggest that
15 that be "and by publication" in that that is what is
16 routinely done in these matters when there is
17 alternate service is that it would just automatically
18 be, all of these forms of alternate service are all
19 big ors, but there is always publication, and that
20 further would ensure that there was something out
22 MS. AUKERMAN: That's friendly. That's
24 MS. KIRSCH-SATAWA: I did that one first
25 because I was more certain that one would be friendly.
1 If you go back to the, what is now the first,
2 beginning of the second sentence where it says "in an
3 emergency," comma, my suggestion would be that you
4 include, that after the comma you put "or at the
5 request of law enforcement or any investigating social
6 service agency," because that would allow a court to
7 have the authority to grant legal authority to a
8 person with whom a child has been placed to avoid a
9 foster care situation, and quite often in
10 circumstances where there is an abuse investigation or
11 a criminal investigation by the police or by the
12 Family Independence Agency they will say to the
13 parents, Have your child go live here while we sort
14 all of this out or we are going to have to put your
15 children in foster care, and so this just gives the
16 court another vehicle to use to avoid placing children
17 in foster care.
18 MS. AUKERMAN: Could we see the language? I
19 think our concern is about private parties, not so
20 much about -- private parties. It sounds like the
21 line you are proposing would not be about private
22 parties but would be about law enforcement or social
24 MS. KIRSCH-SATAWA: It's at the beginning. I
25 believe the "in an emergency" is where the private
1 parties are asking for an ex parte guardianship, but I
2 think there are circumstances when a private party may
3 not be able to adequately --
4 CHAIR LEVY: So you are suggesting
5 after "in an emergency," comma, insert what language or
6 at the request of law enforcement or any investigating
7 social service agency, which would include the Family
8 Independence Agency.
9 MS. AUKERMAN: I guess the "any investigating
10 social service agency" seems broad to me, any
11 investigating social service agency. I guess there is
12 a lot of private parties, private social workers out
14 MS. KIRSCH-SATAWA: We can change it to the
15 Family Independence Agency. I just wouldn't want to
16 preclude a situation where you had a contract agency
17 of FIA, such as Catholic Social Services.
18 CHAIR LEVY: So it's or FIA.
19 MS. KIRSCH-SATAWA: I guess I would ask for
20 suggestions from others. What I was trying to
21 accomplish is if you had a situation, if it just says
22 or Family Independence Agency, FIA, and it doesn't kind
23 of leave it a little more broad than that, then you
24 have a situation where you have, let's say, Catholic
25 Social Services is already involved with the family,
1 they wouldn't have the authority to act if it only
2 said FIA.
3 I have a good suggestion, FIA or its
4 designated agents.
5 MS. STANGL: That's fine.
6 MS. AUKERMAN: That's fine.
7 CHAIR LEVY: And then losing the "any
8 investigating social service."
9 MS. KIRSCH-SATAWA: Take that out.
10 CHAIR LEVY: That was accepted as
12 MS. AUKERMAN: Yes.
13 CHAIR LEVY: Any other discussion?
14 VOICE: Call the question.
15 MS. ROSS: I am Marcia Ross from the 6th
16 circuit. I believe that your requirement on personal
17 service, which is at the bottom of MCR 5.403(B), you
18 talk about return receipt requested and delivery
19 restricted to the addressee. Isn't that personal
20 service currently under our court rules, so isn't it
21 kind of redundant? That would be a form of personal
22 service, the acceptance of something addressed only to
23 me that I sign for.
24 And with regard to the second, this language
25 up above, I believe that that was requested to be
1 designed for in abuse and neglect cases, and this
2 specific requirement is in cases other than
3 specifically neglect and abuse cases, so is it still
4 friendly then? Isn't it other than?
5 MS. AUKERMAN: To address the second, yeah, to
6 address the second question, I think these are not
7 abuse and neglect proceedings, but sometimes what
8 happens in abuse and neglect proceedings is that
9 instead of placing a child in foster care Child
10 Protective Services will say you can go stay with
11 grandma, but grandma needs to have a guardianship in
12 order to get medical treatment, enroll the child in
13 school, various other sorts of things to keep the kid
14 out of foster care, you have a guardianship while you
15 have a simultaneous abuse and neglect hearing going on
16 separately. There are two separate proceedings, but
17 you have a private party who becomes the guardian
18 rather than the child going into foster care.
19 MS. ROSS: I understand, but I think you are
20 providing for a temporary placement in what you have
21 already proposed and an automatic hearing to address
22 that, so I don't see the problem. In other words, if
23 it's an emergency, in some courts they appoint a
24 guardian ad litem and they have a hearing in three
25 days on the temporary guardianship, and then what they
1 do is have an automatic hearing at the appropriate
2 deadline date now statutorily and give notice to
3 everybody as well, so there is only a temporary issue.
4 So I think there is already a mechanism for that.
5 CHAIR LEVY: I am sorry, are you
6 proposing language?
7 MS. ROSS: I am speaking in opposition to
8 this amendment, because I don't think it applies,
9 because I think there are other rules for abuse and
10 neglect cases.
11 CHAIR LEVY: Thank you. You will get
12 the last word. Other comments, but, again, I want to
13 remind people and caution people that the proposal is
14 essentially the first paragraph, be it resolved that,
15 and that language, the suggested language, the way
16 it's suggested, the suggested changes to the MCR
17 specifically are to be consistent with that, so that
18 if there is a portion that's redundant or small
19 corrections, those things are anticipated to get made
20 later. We are adopting, as is our function, the broader
21 policy concern here and would urge people to try and
22 stick to that. Tom.
23 MR. ROMBACH: Tom Rombach from the 16th
24 circuit. At the risk of getting into group drafting,
25 which I abhor, but at the same time because I have
1 great pride in the work product of the Representative
2 Assembly, you have got some grammatical problems here.
3 After agency, you have to have a comma there, because
4 it's essentially a parenthetical reference where you
5 have a flashing item there, and then instead of
6 dispensing with, essentially a slang term with a
7 preposition, you probably would need in the fourth
8 line eliminated, in the fifth line eliminating,
9 instead of dispensing with, two lines later dispensed
10 with should be again replaced by eliminated. You have
11 some other problems in here.
12 I would feel most comfortable if we refer
13 this, even upon its adoption, not to slow it down, but
14 to our Drafting Committee to make sure that it's
15 consistent with the Representative Assembly action,
16 that we don't end up with some real problems, and that
17 was just a cursory viewpoint.
18 The other things you have, like about the 9th
19 line down, you have fully notice. It's an adverb
20 modifying an adjective. You don't need a hyphen
21 there. There is a whole slew of these things. So,
22 again, if we are going to submit this to the Michigan
23 Supreme Court, I would be much more comfortable if the
24 Drafting Committee has a look at it. I propose those
25 as friendly amendments.
1 MS. STANGL: That's why it's nice to have a
2 Drafting Committee.
3 VOICE: Is that a motion, Mr. Rombach?
4 MR. ROMBACH: I would move in fact an order
5 upon, if this does pass, I would like to put in a
6 reference that we send this to Drafting before we send
7 it to the Supreme Court, but I would note that they
8 are not to do any substantive changes, just for
9 grammatical touch-up.
10 CHAIR LEVY: Essentially it's just
11 inserting in the initial be it resolved appendix A as
12 reviewed by drafting?
13 MS. STANGL: Following review by drafting.
14 CHAIR LEVY: Following review by
15 drafting, something like that.
16 MR. ROMBACH: That's great.
17 VOICE: Support.
18 CHAIR LEVY: And that was accepted as
19 friendly, so that is now the proposal on the floor.
20 Any discussion as the proposal on the floor continues?
21 MR. GOBBO: Stephen Gobbo from the 30th
22 district. I guess I would just like to reemphasize
23 Tom's concern about some of the language. I get
24 concerned with the court rules putting in
25 abbreviations for State agencies that the name may
1 change the next day and it's not defined. So if you
2 come up with some other drafting language that would
3 incorporate that possibility, I think I would feel a
4 lot more comfortable, and knowing the State agencies
5 can't go into court and represent themselves, I think
6 representation on behalf of I guess an agent of the
7 agency coming in probably covers Dan's agency in terms
8 of the attorney general.
9 CHAIR LEVY: Other discussion to the
11 MR. HARON: David Haron, 6th circuit. The
12 spirit of this is very important, and I don't think we
13 should get bogged down today with all the commas and
14 periods and all the other things. That's why you have
15 the Drafting Committee, but let's not lose sight of
16 the focus of the spirit of this is very important, so,
17 therefore, I am in favor of the spirit of this whole
18 concept. Thank you.
19 VOICE: Call the question.
20 CHAIR LEVY: Question has been called.
21 I see nobody at the microphone, so I will ask all in
22 favor of the proposal as presented, please signify by
23 saying aye.
24 Any opposed.
25 The proposal passes.
2 A couple, very few last minute things. One
3 is my apologies to the court reporter. I made up for
4 our late start due to traffic by talking fast, and
5 that's good for us but not so good for her.
6 Again, don't forget attendance slips. If you
7 are eligible, don't forget your petition to run again.
8 If you are not eligible, if you are term limited,
9 please remember that that does not take place until
10 after the September annual meeting so that you should
11 still be planning on coming to the next meeting.
12 There is the survey that we would ask that
13 you fill out today. The baskets to turn those slips
14 in will be in the back on your way out.
15 If you are thinking about the possibility of
16 running for clerk, please talk to one of us so that we
17 can encourage that, and last and most important,
18 before I ask for a motion to adjourn, lunch is in
19 Big Ten C, which is to the left and then on your left.
20 Motion to adjourn.
21 VOICE: Motion to adjourn.
22 VOICE: Second.
23 CHAIR LEVY: No opposition, the motion
24 is granted. Thank you very much.
25 (Proceedings concluded at 1:10 p.m.)
1 STATE OF MICHIGAN )
2 COUNTY OF CLINTON )
3 I certify that this transcript, consisting
4 of 121 pages, is a complete, true, and correct transcript
5 of the proceedings and testimony taken in this case on
6 March 27, 2004.
7 April 14, 2004 ___________________________________
8 Connie S. Coon, CSR-2709
5021 West St. Joseph, Suite 3
9 Lansing, Michigan 48917