News & Notices

From the Michigan Supreme Court November 2023

 

Michigan Bar Journal

 

ADM File No. 2020-21Amendments of the Michigan Rules of Evidence

ADM File No. 2022-03Amendment of Rule 1.109 of the Michigan Court Rules

ADM File No. 2022-19Proposed Amendments of Rules 1.15 and 1.15A and Proposed Additions of Rules 1.15B and 1.15C of the Michigan Rules of Professional Conduct

ADM File No. 2023-24Proposed Amendment of Rule 3.701 and Proposed Additions of Rules 3.715, 3.716, 3.717, 3.718, 3.719, 3.720, 3.721, and 3.722 of the Michigan Court Rules

To read these ADM files, visit www.courts.michigan.gov/rules-administrative-orders-and-jury-instructions/proposed-adopted/administrative-orders/.

ADM File No. 2021-20Amendment of Rule 6.001 and Addition of Rule 6.009 of the Michigan Court Rules

On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendment of Rule 6.001 and addition of Rule 6.009 of the Michigan Court Rules is adopted, effective Jan. 1, 2024.

[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]

Rule 6.001 Scope; Applicability of Civil Rules; Superseded Rules and Statutes

(A) [Unchanged.]

(B) Misdemeanor Cases. MCR 6.001-6.004, 6.005(B) and (C),

6.006(A) and (C)-(E), 6.009, 6.101-6.103, 6.104(A), 6.105-6.106, 6.125, 6.202, 6.425(D)(3), 6.427, 6.430, 6.435, 6.440, 6.441, 6.445, 6.450, 6.451, and the rules in subchapter 6.600 govern matters of procedure in criminal cases cognizable in the district courts.

(C) Juvenile Cases. MCR 6.009 and tThe rules in subchapter 6.900 govern matters of procedure in the district courts and in circuit courts and courts of equivalent criminal jurisdiction in cases involving juveniles against whom the prosecutor has authorized the filing of a criminal complaint as provided in MCL 764.1f.

(D)-(E) [Unchanged.]

[NEW] Rule 6.009 Use of Restraints on a Defendant

(A) Instruments of restraint, such as handcuffs, chains, irons, or straitjackets, cloth and leather restraints, and other similar items, may not be used on a defendant during a court proceeding that is or could have been before a jury unless the court finds, using record evidence, that the use of restraints is necessary due to one of the following factors:

(1) Instruments of restraint are necessary to prevent physical harm to the defendant or another person.

(2) The defendant has a history of disruptive courtroom behavior that has placed others in potentially harmful situations or presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior.

(3) There is a founded belief that the defendant presents a substantial risk of flight from the courtroom.

(B) The court’s determination that restraints are necessary must be made outside the presence of the jury. If restraints are ordered, the court shall state on the record or in writing its findings of fact in support of the order.

(C) Any restraints used on a defendant in the courtroom must allow the defendant limited movement of the hands to read and handle documents and writings necessary to the hearing. Under no circumstances should a defendant be restrained using fixed restraints to a wall, floor, or furniture.

(D) If the court determines restraints are needed, the court must order restraints that reflect the least restrictive means necessary to maintain the security of the courtroom. A court should consider the visibility of a given restraint and the degree to which it affects an individual’s range of movement. A court may consider, but is not limited to considering, participation by video or other electronic means; the presence of court personnel, law enforcement officers, or bailiffs; or unobtrusive stun devices.

Staff Comment (ADM 2021-20): The addition of MCR 6.009 establishes a procedure regarding the use of restraints on a criminal defendant in court proceedings that are or could be before a jury, and the amendment of MCR 6.001 makes the new rule applicable to felony, misdemeanor, and automatic waiver cases.

The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.

Cavanagh, J. (concurring). I concur with this Court’s order amending MCR 6.001 and adopting MCR 6.009. Under the new rule trial courts may order a defendant restrained any time they have record evidence to conclude it is necessary. The only circumstances under which restraining a defendant is prohibited are if a trial court has not considered whether restraining a defendant is necessary or if the trial court has done so and concluded that restraint is unnecessary. Further, the inquiry is required only in proceedings that are before a jury or could have been before a jury. This measure is prudent, narrow, and respectful of the presumption of innocence as well as the formal dignity of the courtroom.

We need not limit our court rules to require only constitutional minimums, but clearly, the constitutional minimum is a relevant consideration. In Deck v. Missouri, 544 US 622, 629 (2005), the United States Supreme Court discussed physical restraints that are visible to a jury because that was the factual circumstance with which the Court was presented. The Court, however, was very clear that there was a “consensus disapproving routine shackling dating back to the 19th century ... .” Id. at 629. Going back to Blackstone and before, courts have observed concerns with restraints beyond just their visibility:

Blackstone wrote that “it is laid down in our antient [sic] books, that, though under an indictment of the highest nature,” a defendant “must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape.” 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted); see also 3 E. Coke, Institutes of the Laws of England *34 (“If felons come in judgement to answer, ... they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will”). [Id. at 626.]

And clearly Deck’s holding is not limited to the presumption of innocence, because the ultimate question the Court was contemplating was the use of restraints in the sentencing phase of a death-penalty case. Deck noted that the presumption of innocence was only one of three “fundamental legal principles” that required the prohibition of routine restraint. Id. at 630. The Court also noted that restraints interfere with the right to counsel and that “judges must seek to maintain a judicial process that is a dignified process.” Id. at 631. On that point, the Court said:

The courtroom’s formal dignity, which includes the respectful treatment of defendants, reflects the importance of the matter at issue, guilt or innocence, and the gravity with which Americans consider any deprivation of an individual’s liberty through criminal punishment. And it reflects a seriousness of purpose that helps to explain the judicial system’s power to inspire the confidence and to affect the behavior of a general public whose demands for justice our courts seek to serve. The routine use of shackles in the presence of juries would undermine these symbolic yet concrete objectives. As this Court has said, the use of shackles at trial “affront[s]” the “dignity and decorum of judicial proceedings that the judge is seeking to uphold.” [Id. (citation omitted).]

Concerns about dignity in court proceedings certainly apply to bench trials as well as jury trials.

The counterbalance to these important legal principles is the vital practical consideration of safety. Sometimes restraints are required. MCR 6.009 allows a trial court to order restraints any time the court finds they are necessary because of one of the factors set forth in MCR 6.009(A)(1) through (3). Among these factors is if “[i]nstruments of restraint are necessary to prevent physical harm to the defendant or another person.” MCR 6.009(A)(1). This broadly worded consideration would seem to allow a trial court to consider any fact specific to the defendant that gives rise to the necessity of restraints.

Of note, requiring consideration of the necessity of restraints in hearings that could not be held before a jury was not discussed in this public-comment process. That requirement might pose greater logistical challenges. To the extent Justice Viviano points out that particular defendants might be restrained for some hearings and not others, I trust our trial courts to navigate those decisions as they see fit.

Viviano, J. (dissenting). The majority adopts a new rule that greatly limits the circumstances in which a criminal defendant can be restrained when appearing in court. It prohibits the use of restraints on a criminal defendant in any “proceeding that is or could have been before a jury” unless the court makes certain findings. Consequently, the rule applies to proceedings that take place in front of a judge without a jury. The new rule is neither constitutionally required nor practically wise. I fear it will needlessly endanger the safety of judges, court staff, attorneys, and members of the public in courtrooms across the state. I therefore dissent.

As Justice Zahra explained when this rule was published for comment, the federal Constitution limits the use of restraints only when those restraints are visible to a jury. The United States Supreme Court’s decision in Deck v. Missouri, 544 US 622, 629 (2005), held that the Constitution “prohibit[s] the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” (Emphasis added.) This reflects our caselaw. Prior to Deck, we held there was no prejudicial error when the jury does not observe the restraints on a defendant. See People v. Dunn, 446 Mich 409, 425 (1994) (“The record does not show, however, that any member of the jury saw or could see the leg irons, and, therefore, the record does not provide a basis for a finding that the use of leg irons deprived Dunn of a fair trial.”). More recently, we have declined to apply Deck’s rule in situations in which the restraints were shielded from the jury’s view and there was no evidence that any juror saw the restraints. People v. Arthur, 495 Mich 861, 862 (2013).

Today, however, the majority effectively extends the rule from Deck to certain proceedings before a judge. Nothing in the Constitution or relevant caselaw requires this result. Indeed, in describing the history of the rule, Deck explained that it “was meant to protect defendants appearing at trial before a jury.” Deck, 544 US at 626. Accordingly, the rule was inapplicable during arraignments “or like proceedings before the judge.” Id.1 There is simply no basis in Deck or historical practice for limiting the use of restraints in nonjury proceedings.2

Not only is the rule constitutionally and historically ungrounded, it is also confusing and imprudent. As Justice Zahra observed, “the published rule would extend Deck even to bench trials held before the very judge who would have earlier made the decision on whether to shackle the defendant.” Proposed Amendment of MCR 6.001 and Proposed Addition of MCR 6.009, 509 Mich 1214, 1216-1217 (2022) (Zahra, J., dissenting). More befuddling still, the rule applies only to certain proceedings in front of the judge — those that could have been held in front of a jury. As such, even if restraints during a bench trial are prohibited under the new rule, the judge could nevertheless order shackles on the defendant during all other proceedings that occur during the trial that would not take place in front of a jury. Thus, for example, if a motion is made during the bench trial, the judge could order the defendant restrained during the argument and decision on the motion.

It strains credulity to believe that the rule has any beneficial effect in these circumstances. It is not clear to me how the same judge who decides whether to shackle the defendant in the first place and sees the defendant in shackles during nonjury proceedings will somehow be biased by knowing that defendant is restrained during the bench trial — as noted, the majority’s enactment today applies not only to visible restraints but more broadly to all restraints. So even if the judge cannot see the restraints, the rule still applies. What purpose could this rule possibly serve?

The rule adopted by the majority treats our trial judges as if they are incapable of using common sense. There is, of course, no basis for the idea that trial judges are unable to set aside the fact that a defendant is restrained in order to make proper and unbiased rulings during the proceedings.3 Indeed, it is not clear that today’s rule provides a solution to any problem whatsoever. No research or even anecdotes have been put forward in support of the notion that using restraints in bench trials or similar proceedings before a judge has resulted in harm to defendants. Certainly, nothing has been offered that would justify changing the default rule from allowing restraints in these circumstances to prohibiting them unless an exception exists.

The real result of the majority’s rule, then, will not be to protect defendants. Rather, the rule’s true effect will be to endanger the safety of court proceedings by limiting the discretion of trial judges, who certainly understand the security needs of their courtrooms far better than the members of this Court do. The rule significantly constricts the factors that a court can consider when determining whether to order restraints. As I noted when the majority imposed a similar rule with regard to juvenile defendants, today’s rule removes from the table various factors that have always been considered in this setting. See Adoption of MCR 3.906, 508 Mich cxxvii, cxxxi-cxxxii (Viviano, J., dissenting). The rule today allows for restraints only if they are necessary to prevent physical harm, if the defendant has a history of “disruptive courtroom behavior” that poses “a substantial risk” of physical harm, or if there is “a founded belief that the defendant presents a substantial risk of flight … .”

This severely limits a court’s discretion. A significant majority of states, historically and into the modern era, has “permitted courts to consider a range of information outside the trial, including past escape, prior convictions, the nature of the crime for which the defendant was on trial, conduct prior to trial while in prison, any prior disposition toward violence, and physical attributes of the defendant, such as his size, physical strength, and age.” Deck, 544 US at 647-648 (Thomas, J., dissenting). Deck allowed courts to continue relying on all these factors and rejected the rule “that courts may consider only a defendant’s conduct at the trial itself or other information demonstrating that it is a relative certainty that the defendant will engage in disruptive or threatening conduct at his trial.” Id. at 648 (Thomas, J., dissenting); see also id. at 630 (opinion of the Court) (noting that judges can “take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial”). As I said with regard to the use of restraints on juveniles, “I can think of no justification for limiting trial courts from full consideration of all factors bearing on the safety and security of court proceedings.” Adoption of MCR 3.906, 508 Mich at cxxxii (Viviano, J., dissenting). I fear that the majority has enacted such a limitation today, in a much larger class of cases and with potentially tragic results.

I would have no objection to a rule that conforms to the constitutional requirements laid out in Deck, which our trial courts must abide by in any event. Today’s rule needlessly goes much further and dangerously limits the ability of our trial judges to ensure that court proceedings are conducted safely and securely. I therefore dissent.

Zahra, J., joins the statement of Viviano, J.

1. Although Deck involved the penalty phase, the penalty was decided by a jury in Deck and the holding was expressly limited to such jury determinations. Id. at 632-633.

2. Justice Cavanagh notes that concerns other than the visibility of restraints help explain the historical ban on restraints. This may be true, but it ignores the ban’s historical limitation to jury proceedings, where the visibility of restraints was thought to potentially harm perceptions of the defendant. While Blackstone’s and Lord Coke’s brief commentaries on the topic suggested a broader ban on restraints, courts quickly thereafter took the position that “their power to order the removal of shackles [w]as limited to trial” and did not extend to pretrial proceedings like arraignments. Lehr, Brought to the Bar: The Constitutionality of Indiscriminate Shackling in Non- Jury Criminal Proceedings, 48 N Ky L Rev 1, 6-7 (2021); see also id. at 7 (noting that early decisions in this country “[w]ithout exception” followed the English rule limiting the presumptive ban on shackles to trial). Part of the rationale was, as “[e]arly English jurists . . . recognized,” that “restraints had the potential to skew perceptions of the criminal defendant” and “harm the public’s perception of the defendant and the court.” Id. at 4-5; see also id. at 8 (noting early caselaw from this country expressing the “concern[] for the effects visible restraints might have on a jury’s perception of the defendant”). Thus, historically, the visibility of the restraints was a key to the development of the rule, and the presumption against restraints applied only in the jury-trial setting. Id. at 9 (noting in light of this history that the common-law rule has been consistent and that the Supreme Court has recognized it as a constitutional rule governing jury proceedings); id. at 37 (noting the longstanding view that nonjury proceedings are fundamentally different from jury proceedings and that restrictions on restraints should not apply).

3. On the contrary, “[o]ur judicial system operates under a fundamental presumption that trial judges are impartial, even when presented with inadmissible or prejudicial information.” Cameron v Rewerts, 841 F Appx 864, 866 (CA 6, 2021), citing, inter alia, Harris v Rivera, 454 US 339, 346 (1981) (“In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions.”); see also People v Wofford, 196 Mich App 275, 282 (1992) (“Unlike a jury, a judge is presumed to possess an understanding of the law, which allows him to understand the difference between admissible and inadmissible evidence or statements of counsel.”); cf. Mahlen Land Corp v Kurtz, 355 Mich 340, 351 (1959) (noting that, when reviewing a trial judge’s actions, the judge “stands in our eyes garbed with every presumption of fairness, and integrity, and heavy indeed is the burden assumed in this Court by the litigant who would impeach the presumption so amply justified through the years”).

ADM File No. 2022-11 Amendments of Rules 2.511 and 6.412 of the Michigan Court Rules

On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having

been provided, and consideration having been given to the comments received, the following amendments of Rules 2.511 and 6.412 of the Michigan Court Rules are adopted, effective Jan. 1, 2024.

[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]

Rule 2.511 Impaneling the Jury

(A)-(B) [Unchanged.]

(C) Examination of Jurors; Discharge of Unqualified Juror. The court may conduct the examineation of prospective jurors or may permit the attorneys for the parties to do so. If the court examines the prospective jurors, it must permit the attorneys for the parties to

(1) ask further questions that the court considers proper, or

(2) submit further questions that the court may ask if it considers them proper.

(D) Discharge of Unqualified Juror. When the court finds that a person in attendance at court as a juror is not qualified to serve as a juror, the court shall discharge him or her from further attendance and service as a juror.

(D)-(H) [Relettered (E)-(I) but otherwise unchanged.]

Rule 6.412 Selection of the Jury

(A)-(B) [Unchanged.]

(C) Voir Dire of Prospective Jurors.

(1) [Unchanged.]

(2) Conduct of the Examination. The court may conduct the examineation of prospective jurors or permit the attorneys for the partieslawyers to do so. If the court conducts the examinesation the prospective jurors, it mustmay permit the attorneys for the partieslawyers to supplement the examination by direct questioning or by submitting questions for the court to ask.

(a) ask further questions that the court considers proper, or

(b) submit further questions that the court may ask if it considers them proper.

On its own initiative or on the motion of a party, the court may provide for a prospective juror or jurors to be questioned out of the presence of the other jurors.

(D)-(F) [Unchanged.]

Staff Comment (ADM File No. 2022-11): The amendments of MCR 2.511(C) and 6.412(C) align with Fed Crim P 24 and Fed Civ R 47 and require the court to allow the attorneys or parties to conduct voir dire in civil and criminal proceedings if the court examines the prospective jurors. The requirement is subject to the court’s determination that the parties’ or attorneys’ questions are proper.

The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.

ADM File No. 2022-24 Proposed Amendments of Rules 6.907, 6.909, and 6.933 of the Michigan Court Rules

On order of the Court, this is to advise that the Court is considering amendments of Rules 6.907, 6.909, and 6.933 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will also be considered at a public hearing. The notices and agendas for each public hearing are posted on the Public Administrative Hearings page.

Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.

[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]

Rule 6.907 Arraignment on Complaint and Warrant

(A) [Unchanged.]

(B) Temporary Detention Pending Arraignment. If the prosecuting attorney has authorized the filing of a complaint and warrant charging a specified juvenile violation instead of approving the filing of a petition in the family division of the circuit court, a juvenile may, following apprehension, be detained pending arraignment:

(1)-(3) [Unchanged.]

If no juvenile facility is reasonably available and if it is apparent that the juvenile may not otherwise be safely detained, the magistrate may, without a hearing, authorize that the juvenile be lodged pending arraignment in a facility used to incarcerate adults. The juvenile must be kept separate from adult prisoners as required by law. Best efforts must be made to avoid placing youthful inmates in isolation to comply with this provision.

(C) [Unchanged.]

Rule 6.909 Releasing or Detaining Juveniles Before Trial or Sentencing

(A) [Unchanged.]

(B) Place of Confinement.

(1)-(3) [Unchanged.]

(4) Separate Custody of Juvenile. The juvenile in custody or detention must be maintained separately from the adult prisoners or adult accused as required by MCL 764.27a. Best efforts must be made to avoid placing youthful inmates in isolation to comply with this provision.

(C) [Unchanged.]

Rule 6.933 Juvenile Probation Revocation

(A)-(F) [Unchanged.]

(G) Disposition in General.

(1) [Unchanged.]

(2) Other Violations. If the court finds that the juvenile has violated juvenile probation, other than as provided in subrule (G) (1), the court may order the juvenile committed to the Department of Corrections as provided in subrule (G)(1), or may order the juvenile continued on juvenile probation and under state wardship, and may order any of the following:

(a)-(h) [Unchanged.]

If the court determines to place the juvenile in jail for up to 30 days, and the juvenile is under 18 years of age, the juvenile must be placed separately from adult prisoners as required by law. Best efforts must be made to avoid placing youthful inmates in isolation to comply with this provision.

(3) [Unchanged.]

(H)-(J) [Unchanged.]

Staff Comment (ADM File No. 2022-24): As a condition for the State’s receipt of federal funds under the Prison Rape Elimination Act, 34 USC 30301 et seq., the conditions of confinement for juveniles must comply with federal regulations promulgated under that act, including the requirement that best efforts be made to avoid placing incarcerated youthful inmates in isolation. See 28 CFR 115.14. The proposed amendments clarify that youthful inmates should not be placed in isolation in order to keep them separate from adults.

The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.

A copy of this order will be given to the secretary of the State Bar and to the state court administrator so that they can make the notifications specified in MCR 1.201. Comments on the proposal may be submitted by Jan. 1, 2024 by clicking on the “Comment on this Proposal” link under this proposal on the Court’s Proposed & Adopted Orders on Administrative Matters page. You may also submit a comment in writing at P.O. Box 30052, Lansing, MI 48909 or via email at ADMcomment@courts.mi.gov. When submitting a comment, please refer to ADM File No. 2022-24. Your comments and the comments of others will be posted under the chapter affected by this proposal.

Zahra, J. and Viviano, J., would have declined to publish the proposal for comment.

ADM File No. 2022-33 Proposed Amendment of Rule 4.303 of the Michigan Court Rules

On order of the Court, this is to advise that the Court is considering an amendment of Rule 4.303 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for each public hearing are posted on the Public Administrative Hearings page. Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.

[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]

Rule 4.303 Notice

(A)-(C) [Unchanged.]

(D) Dismissal for Lack of Progress. On motion of a party or on its own initiative, the court may order that an action in which no progress has been made within 91 days be dismissed for lack of progress. A dismissal under this subrule is without prejudice, unless the court orders otherwise.

Staff Comment (ADM File No. 2022-33): The proposed amendment of MCR 4.303 would allow courts to dismiss small claims cases for lack of progress. The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.

A copy of this order will be given to the secretary of the State Bar and to the state court administrator so that they can make the notifications specified in MCR 1.201. Comments on the proposal may be submitted by Jan. 1, 2024, by clicking on the “Comment on this Proposal” link under this proposal on the Court’s Proposed & Adopted Orders on Administrative Matters page. You may also submit a comment in writing at P.O. Box 30052, Lansing, MI 48909 or via email at ADMcomment@courts.mi.gov. When submitting a comment, please refer to ADM File No. 2022-33. Your comments and the comments of others will be posted under the chapter affected by this proposal.

ADM File No. 2023-01 Supreme Court Appointment to the Attorney Discipline Board

On order of the Court pursuant to MCR 9.110, Kamilia K. Landrum (layperson member) is appointed to the Attorney Discipline Board for a term commencing on Oct. 1, 2023, and ending on Sept. 30, 2026.

ADM File No. 2023-01 Supreme Court Appointments to the Attorney Grievance Commission

On order of the Court, pursuant to MCR 9.108, Kathryn R. Swedlow (attorney member), Alexander Pahany (attorney member), and James Moritz (layperson member) are appointed to the Attorney Grievance Commission for terms commencing on Oct. 1, 2023, and ending on Sept. 30, 2026.

Latoya M. Willis is appointed as chairperson and J. Paul Janes is reappointed as vice-chairperson of the commission for terms commencing on Oct. 1, 2023, and ending Sept. 30, 2024.

ADM File No. 2023-20 Adoption of Administrative Order No. 2023-1 Creation of the Commission on Well-Being in the Law

Administrative Order No. 2023-1 — Commission on Well-Being in the Law

In 2017, the National Task Force on Lawyer Well-Being released its report, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The report highlights the significant struggles faced by legal professionals and law students, including high rates of depression, anxiety, and substance use issues. In May 2022, the Michigan Supreme Court and the State Bar of Michigan launched The Task Force on Well-Being in the Law (Task Force) to answer the National Task Force’s call to action to address the well-being of legal professionals and law students. On Aug. 18, 2023, the Task Force presented a report to the Supreme Court that included a recommendation that the Court create an ongoing interdisciplinary commission to build on the work that has been done to date. The Court recognizes the importance of ensuring Michigan’s legal professionals and law students have the resources and information available to help ensure their well- being. Therefore, on order of the Court, the Commission on Well-Being in the Law is created, effective immediately.

I. Purpose

The purpose of the Commission on Well-Being in the Law is to build upon the good work already accomplished by the Task Force and continue the forward momentum to change the climate of the legal culture by promoting well-being within the legal profession. The Commission will foster an environment that encourages members of the legal profession, law students, and court staff to strive for greater mental, physical, and emotional health.

II. Duties

The Commission will address the recommendations outlined in the report from the Task Force on Well-Being in the Law, and continue to work with stakeholders to identify and implement additional strategies to reduce the stresses to mental health in the legal profession; eliminate the stigma associated with help-seeking behaviors; educate judges and court staff, lawyers, and law students on well-being issues; and take incremental steps to enhance well-being within the profession.

III. Commission Leadership

A. Executive Team — The leadership, direction, and administrative support for the Commission’s activities is provided collaboratively by the State Court Administrative Office, Supreme Court staff, and the State Bar of Michigan. The chair and vice-chair, the State Court Administrator (or designee), the Executive Director of the State Bar of Michigan (or designee), and the Director of the State Bar of Michigan Lawyers and Judges Assistance Program constitute the Executive Team. Duties of the Executive Team include:

1. Preparing meeting agendas;

2. Providing data required for Commission deliberations;

3. Identifying and pursuing third party funding sources for Commission initiatives; and

4. Preparing an annual report for the Supreme Court.

B. Chair and Vice-Chair — A chair and vice-chair are appointed for two-year terms and may be reappointed.

1. Initial appointments — Individuals selected for chair/ vice-chair positions when the Commission is first constituted shall serve their initial two-year term regardless of their continued membership in the groups outlined in Section IV.A.

2. After the initial selection, individuals selected for the chair/vice-chair positions shall be chosen from the membership of the Commission. The Executive Team will provide recommendations for the Court’s consideration.

3. Duties of the chair include:

a. Presiding at all meetings of the Commission;

b. Approving a draft agenda for Commission meetings; and

c. Serving as the official spokesperson of the Commission.

4. The vice-chair will perform the duties of the chair in the chair’s absence.

IV. Commission Membership

A. Membership shall be comprised of 34 members from the following individuals and groups:

1. A sitting justice of the Michigan Supreme Court.

2. The State Court Administrator or designee.

3. The Executive Director of the State Bar of Michigan or designee.

4. The Director of the State Bar of Michigan Lawyers and Judges Assistance Program.

5. Subject to appointment as provided in Section IV.B, one individual representing each of the following, as recommended by the following:

a. the Michigan Indigent Defense Commission;

b. the Prosecuting Attorneys Association of Michigan;

c. the Board of Commissioners of the State Bar of Michigan;

d. the Michigan Tribal State-Federal Judicial Forum;

e. Michigan State University College of Law;

f. University of Michigan Law School;

g. Western Michigan University Cooley Law School;

h. University of Detroit Mercy School of Law;

i. Wayne State University Law School;

j. the Michigan Attorney Discipline Board;

k. the Michigan Attorney Grievance Commission;

l. the Michigan Judicial Tenure Commission.

6. Subject to appointment as provided in Section IV.B, the following individuals:

a. a judge of the Michigan Court of Appeals;

b. a member of the Michigan Judges Association (Circuit Court Judge);

c. a member of the Michigan District Court Judges Association;

d. a member of the Michigan Probate Judges Association;

e. a member of the Association of Black Judges of Michigan

f. a member of the Referees Association of Michigan;

g. a member of the Michigan Association of District Court Magistrates;

h. a member of the Michigan Court Administration Association;

i. a member of the Michigan Association of Circuit Court Administrators;

j. a member of the Michigan Probate and Juvenile Registers Association;

k. two law students currently attending an ABA-accredited law school within Michigan;

l. two mental health professionals licensed in Michigan;

m. four attorneys licensed and practicing in Michigan, with one from each of the following representative groups:

i. has been licensed for less than 5 years;

ii. working in a solo practice;

iii. working at a mid-size law firm, as defined by the Executive Team;

iv. an attorney working at a large law firm, as defined by the Executive Team.

B. Appointments. With the exception of the members who will serve by virtue of their status (See Section IV.A.1 to IV.A.4), the Supreme Court shall appoint all members of the Commission. The Executive Team will provide recommendations for the Court’s consideration.

C. Terms — With the exception of members who will serve by virtue of their status (See Section IV.A.1 to IV.A.4), members of the Commission will be appointed for three-year terms and will be limited to serving two full terms. Initial terms will commence as ordered by the Court and may be less than three years to ensure that the terms are staggered, with initial terms of one-year, two-years, and three- years. All members appointed or reappointed following these initial terms will be appointed for three-year terms. After initial appointment, all terms commence January 1st and end on December 31 of each calendar year. A law student member who graduates during their term may serve until the completion of their term but may not be reappointed to represent that stakeholder group.

The following individuals comprise the initial Executive Team of the Commission on Well-Being in the Law:

Supreme Court Justice Megan K. Cavanagh

State Court Administrator Tom Boyd (or designee)

SBM Executive Director Peter Cunningham (or designee)

Director of the SBM Lawyer and Judges Assistance Program Molly Ranns.

Justice Megan K. Cavanagh and Molly Ranns are appointed as the initial chair and vice-chair, respectively.

D. Vacancy — The Executive Team may declare a vacancy exists if a member resigns from his or her position from the Commission, moves outside of Michigan, is no longer licensed as required for membership, or does not attend two consecutive meetings without being excused by the chair or vice-chair. If the vacancy is from a group identified in Section IV.A.5, that group shall provide the Executive Team a recommendation for appointment of another person to fill the vacancy. The Executive team shall transmit the recommendation of the group to the Court. In the event of other vacancies on the Commission, the Executive Team will recommend to the Court appointment of a replacement member who will serve the remainder of the term of the former incumbent. After serving the remainder of the term, the new member may be reappointed for no more than two full terms.

V. Meetings, Committees, and Workgroups

A. The Commission will establish operating procedures for conducting meetings. The procedures will be available to the public.

B. The Commission may establish Work Groups or Subcommittees as needed to facilitate or accomplish the work of the Commission.

C. The Executive Team may invite individuals whose particular experience and perspective is needed or helpful to assist with the Commission’s work, including participation in Work Groups or Subcommittees.

VI. Staffing and Administration

The State Court Administrative Office and Supreme Court staff will provide administrative support to the Commission.

VII. Compensation

Members of the Commission will serve without compensation.

VIII. Reporting Requirement

A. The Commission will file an annual report with the Michigan Supreme Court about the Commission’s activities and progress during the previous year. The annual report will be available to the public on the Court’s website.

B. The Commission may make additional information, data, presentations, and publications available to the public and may solicit public comment concerning the Commission’s work.