Public Policy Update from the State Bar of Michigan
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October 2, 2017
Volume 15, Issue 38

In the Capitol

10/3 House Law & Justice, 9:00 a.m. MORE
HB 4536 Require expunction of all information in arrest record when individual is wrongly accused under certain circumstances;
HB 4537 Require promulgation of rules to effectuate expunction and destruction of all arrest record information from LEIN and other databases by C.J.I.S. under certain circumstances;
HB 4538 Eliminate certain exceptions for expunction and destruction of biometric data;
HB 4585 Prohibit public office and officers from and provide penalties for targeting a victim based on his or her actual or perceived employment criteria;
HB 4590 Expand protected individuals against intimidation or hate crimes to include law enforcement officers, firefighters, and emergency medical services personnel;
HB 4591 Enact guidelines for crime of targeting law enforcement officer or emergency medical personnel as victim;
SB 435 Require certification of drug treatment courts by the state court administrative office;
SBM Position: Support.
Criminal Law Section Position: Support.
SB 436 Amend the vehicle code to reflect certification of DWI/sobriety court by the state court administrative office;
SBM Position: Support.
Criminal Law Section Position: Support.
SB 437 Require certification of mental health courts by the state court administrative office;
SBM Position: Support.
Criminal Law Section Position: Support.
SB 438 Require certification of veterans courts by the state court administrative office.
SBM Position: Support.
Criminal Law Section Position: Support.

10/3 House Judiciary, 12:00 p.m. MORE
HB 4410 Allow decedent in wills and estates to exclude adult child by written instrument;
Elder Law & Disability Rights Section Position: Support with Recommended Amendments.
Probate & Estate Planning Section Position: Support the Position Adopted by the Council on September 10, 2016 Related to HB 5638.
HB 4756 Revise abstract of court record for certain violations of the minor in possession of alcohol statute;
SB 381 Modify service of notices to surety bonds;
SB 524 Provide for requirement by the Michigan commission on law enforcement standards for fingerprinting and background checks as prerequisite to certain law enforcement training academy;
HB 4218 Modify qualifications for direct care worker of a juvenile court-operated residential care facility.

10/3 Senate Health Policy, 12:30 p.m. MORE
Agenda Item of Interest:
HB 4170 Allow physician orders for scope of treatment forms;
Elder Law & Disability Rights Section Position: Support with Recommended Amendments.
HB 4171 Authorize a guardian to sign physician orders for scope of treatment form;
Elder Law & Disability Rights Section Position: Support with Recommended Amendments.
HB 4173 Establish procedure if adult foster care facility is unwilling to comply with the physician orders for scope of treatment form;
Elder Law & Disability Rights Section Position: Support with Recommended Amendments.
HB 4174 Revise procedure for complying with a do-not-resuscitate order to reflect physician orders for scope of treatment forms.
Elder Law & Disability Rights Section Position: Support with Recommended Amendments.

10/3 Senate Judiciary, 3:00 p.m. MORE
HB 4716 Require termination of parental rights for subjecting child to undergo female genital mutilation.

10/4 Criminal Justice Policy Commission, 9:00 a.m. MORE

Complete Committee Meeting List

Legislative Action Last Week:
Summary of legislative action on all bills that the State Bar or sections of the State Bar have taken positions.
Substitute H-1 for HB 4463 (Revised Judicature Act of 1961, Allow Members of LLCs and Others with Personal Knowledge to Represent in Certain Situations) passed the House 64 to 43 on 9/26
State Bar of Michigan Position: Oppose
Business Law Section Position: Oppose
Real Property Law Section Position: Oppose

HB 4616 (An Act To Prohibit Local Units Of Government From Imposing Certain Restrictions On The Ownership, Registration, Purchase, Sale, Transfer, Transportation, Or Possession Of Pistols, Other Firearms) passed the House 69 to 39 on 9/27.

SB 525 (Revised Judicature Act of 1961, Reorganization of Courts and Number of Judgeships) was reported out of Senate Judiciary on 9/28.

Legislation Introduced 9/26–9/28
Last week bills were introduced in the following areas of law:

In the Hall of Justice

Justice Wilder Helps to Launch Eastern U.P. Regional Mental Health Court

More Judicial Reductions Recommended to Increase Efficiency, Save Money

Rule Amendments
2016-40: Amendments of MCR 2.625 and 3.101
The amendments of MCR 2.625 and 3.101, submitted by the Michigan Creditor’s Bar Association, address recent amendments of MCL 600.4012, clarify the authority and process for recovering postjudgment costs, and provide clearer procedure for garnishment proceedings.
Issued: September 27, 2017
Effective: May 1, 2018

2017-06: Amendment of MCR 7.300 et seq.
The amendment of MCR 7.300 et seq. would clarify certain practices and procedures in the Supreme Court, especially as they pertain to electronic filing by parties and electronic notification of the Court’s opinions and orders, as well as require only the signed originals of documents to be filed in hard copy.
Issued: September 27, 2017
Effective: January 1, 2018

At the Bar

Donald G. Rockwell Sworn in as State Bar President
Joseph P. McGill Sworn in as SBM Representative Assembly Chair

The Board of Commissioners met on September 27, 2017 at which time the State Bar of Michigan adopted the following public policy positions:

ADM File No. 2015-20 – Proposed Amendment of Rules 8.110 and 8.111 of the Michigan Court Rules
The proposed amendments would explicitly provide that corrective action may be taken by the State Court Administrator, under the Supreme Court’s direction, against a judge whose actions raise the question of the propriety of the judge’s continued service. Such corrective action may include relieving a judge of the judge’s caseload, and reassigning such cases to another judge or judges. The proposed amendments also would provide explicit authority for a chief judge (with approval from the state court administrator) to order a judge to submit to an independent medical examination if there is a good faith doubt as to the judge’s fitness that prompted the chief judge’s report. 
SBM Position: Oppose.

ADM File No. 2017-04 – Proposed Amendment of Code of Judicial Conduct Canon 4(E)(4)(a) and (c)
The proposed amendment would increase the acceptable value for a gift given incident to a public testimonial, and likewise would increase the threshold amount for disclosure of a gift. This proposed increase would be the first revision since the $100 value threshold was adopted in 1974.
The threshold amount for reporting gifts is widely variable among the states and federal government. The disclosure threshold for reporting gifts in other states, established by statute or court rule, ranges from $50 to $500. Many states do not have a threshold amount at all; instead, such states may prohibit the acceptance of gifts from certain classes of donors, or alternatively allow judges to accept a certain class of gifts without regard to value for specific events, such as a wedding, or 25th or 50th wedding anniversary. In considering whether to publish for comment a proposed change, the Court also considered the increase in the value of money since the $100 threshold was adopted. According to the American Institute for Economic Research, the value of $100 in today’s economy is $495.92.
In settling on a structure for purposes of publication, the Court used the federal disclosure rule and threshold as its model. For federal judges, the gift disclosure amount is $375, as established by the Judicial Conference. The instructions for submitting the annual disclosure report require a federal judge to:
Report information on gifts aggregating more than $375 in value received by the filer, spouse and dependent child from any source other than a relative during the reporting period. Any gift with a fair market value of $150 or less need not be aggregated to determine if the $375 reporting threshold has been met.
Thus, similar to the federal rule, the proposed amendment would increase the disclosure threshold to $375, but would require gifts to the judge and his family members from a single source to be aggregated for purposes of reporting. Gifts with value less than $150 would not need to be included in this aggregate amount. Further, the proposed amendment would not change the restriction that a gift may be accepted under this subsection only if the donor is not a party or other person whose interests have come or are likely to come before the judge.
SBM Position: Support.

HB 4666 (Runestad) Civil procedure; service of process; provisions relating to service of process; amend. Amends sec. 1910 of 1961 PA 236 (MCL 600.1910).
SBM Position: Oppose.

SB 0385 (Stamas) Occupations; collection practices; engagement of staff attorneys by licensed debt collection agencies; allow. Amends sec. 915a of 1980 PA 299 (339.915a).
SBM Position: Oppose.

Independence from the Judiciary
1. The indigent criminal defense system (“the system”) should be designed to guarantee the integrity of the relationship between lawyer and client. The system and the lawyers serving under it should be free from political and undue budgetary influence. Both should be subject to judicial supervision only in the same manner and to the same extent as retained counsel or the prosecution. The selection of lawyers and the payment for their services shall not be made by the judiciary or employees reporting to the judiciary. Similarly, the selection and approval of, and payment for, other expenses necessary for providing effective assistance of defense counsel shall not be made by the judiciary or employees reporting to the judiciary.
2. The court’s role shall be limited to: informing defendants of right to counsel; making a determination of indigency and entitlement to appointment; if deemed eligible for counsel, referring the defendant to the appropriate agency (absent a valid waiver); and contributing information and advice concerning the system.
SBM Position: Support the Standard with amendment to make it clear that the court has the obligation and responsibility to rule on the defense’s request on the use of investigators and/or experts in accordance with Michigan law.

Indigent Defense Workloads
The caseload of indigent defense attorneys shall allow each lawyer to give each client the time and effort necessary to ensure effective representation. Neither defender organizations, county offices, contract attorneys, nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation.
These workloads will be determined over time through special Michigan specific weighted caseload studies. Until the completion of such studies, defender organizations, county offices, public defenders, assigned counsel, and contract attorneys should not exceed the caseload levels adopted by the American Council of Chief Defenders – 150 felonies or 400 non-traffic misdemeanors per attorney per year. If an attorney is carrying a mixed caseload which includes cases from felonies and misdemeanors, or non-criminal cases, these standards should be applied proportionally.
These caseload limits reflect the maximum caseloads for full-time defense attorneys, practicing with adequate support staff, who are providing representation in cases of average complexity in each case type specified.
SBM Position: Support the Standard with the proviso that the interim standard is presumptive not absolute.

Qualification and Review
A. Basic Requirements. In order to assure that indigent accused receive the effective assistance of counsel to which they are constitutionally entitled, attorneys providing defense services shall meet the following minimum professional qualifications (hereafter “basic requirements”): Satisfy the minimum requirements for practicing law in Michigan as determined by the Michigan Supreme Court and the State Bar of Michigan; and Comply with the requirements of MIDC Standard 1, relating to the Training and Education of Defense Counsel.
B. Qualifications. Eligibility for particular case assignments shall be based on counsel’s ability, training and experience.
C. Review. The quality of the representation provided by indigent defense providers must be monitored and regularly assessed. Productivity is a component of the review process. Review is a process to evaluate the quality of the representation after an attorney has established the minimum requirements for eligibility. For attorneys seeking qualification under sections B(1)(c) or B(2)(a)(iii), the review process can be used for that purpose. In some cases, the review will give notice to an attorney whose performance can be improved. In all cases, the evaluation of attorneys must be made by peers in the criminal defense community, allowing for input from other stakeholders in the criminal justice system including judges, prosecutors and clients.
SBM Position: Support the Standard with an amendment that "equivalent experience and ability to demonstrate similar skills" be extended to High-severity Felony Cases and Life Offense Cases.

M Crim JI 5.4
The Committee proposes a new jury instruction, M Crim JI 5.14, to explain the presence of support persons or animals in the courtroom. See MCL 600.2163a(4) and People v. Johnson, 315 Mich App 163 (2016). The instruction is entirely new.
SBM Position: Support.

Links of Interest

SBM Public Policy Resource Center
Public Acts
Michigan Supreme Court
Michigan Legislature
MCL Search Engines