Summary
denying appointment of a receiver under traditional rules of equity considering the petitioner did not demonstrate "all less intrusive means . . . were ineffective"
Summary of this case from Crestmark v. First W. Tr. BankOpinion
No. 121995.
September 22, 2006.
Order Entered September 22, 2006.
The motions for appointment of a receiver and for relief from orders are considered, and they are denied, because the Court is not persuaded that it should grant the requested relief. Petitioner Judicial Tenure Commission seeks the appointment of a receiver in its ongoing collection efforts against respondent former judge. Petitioner requests a receivership over respondent's real property but has not shown that all less intrusive means, such as a creditor's examination, were ineffective. Reed v Reed, 265 Mich App 131, 162 (2005). Indeed, petitioner has not exhausted other remedies to pursue payment by respondent. See Petitpren v Taylor School Dist, 104 Mich App 283, 295 (1981). Our cases note that the appointment of a receiver is a "harsh proceeding, which should only be resorted to in extreme cases." People v Israelite House of David, 246 Mich 606, 618 (1929); Michigan. Minerals, Inc v Williams, 306 Mich 515, 525 (1943). The appointment of a receiver at this juncture would be premature.
I concur in the order denying the motion for appointment of a receiver and for relief from orders. I write separately to note that my basis for denial of petitioner's motion is that there is no constitutional authority to assess costs against a judge. Subsection 2 of Const 1963, art 6, § 30 provides that "the supreme court may censure, suspend with or without salary, retire or remove a judge. . . ." As I stated in my concurrence in In re Noecker, 472 Mich 1, 18-19 (2005), "Nothing in this constitutional provision gives this Court any authority to discipline the judge by assessing the judge the costs of the Judicial Tenure Commission proceedings against him or her."
Orders Entered September 26, 2006:
PROPOSED AMENDMENT OF RULE. 3.932 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering an amendment of Rule 3.932 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 be considered at a public hearing by the Court before a final decision is made. The schedule and agendas for public hearings are posted on the Court's website, www.courts. michigan.gov/supremecourt.
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 proposals in its current form.
[The present language would be amended as indicated below]
RULE 3.932 SUMMARY INITIAL PROCEEDINGS.
(A)-(B) [Unchanged.]
(C) Consent Calendar. If the court receives a petition, citation, or appearance ticket, and it appears that protective and supportive action by the court will serve the best interests of the juvenile and the public, the court may proceed on the consent calendar without authorizing a petition to be filed. No case may be placed on the consent calendar unless the juvenile and the parent, guardian, or legal custodian agree to have the case placed on the consent calendar. The court may transfer a case from the formal calendar to the consent calendar at any time before disposition.
(1) Notice. Formal notice is not required for cases placed on the consent calendar except as required by article 2 of the Crime Victim's Rights Act, MCL 780.781 et seq.
(2) Plea; Adjudication. No formal plea may be entered in a consent calendar case unless the case is based on an alleged violation of the Michigan Vehicle Code, in which case the court shall enter a plea., and t The court must not enter an adjudication.
(3) Conference. The court shall conduct a consent calendar conference with the juvenile and the parent, guardian, or legal custodian to discuss the allegations. The victim may, but need not, be present.
(4) Case Plan. If it appears to the court that the juvenile has engaged in conduct that would subject the juvenile to the jurisdiction of the court, the court may issue a written consent calendar case plan.
(5) Custody. A consent calendar case plan must not contain a provision removing the juvenile from the custody of the parent, guardian, or legal custodian.
(6) Disposition. No order of disposition may be entered by the court in a case placed on the consent calendar.
(7) Closure. Upon successful completion by the juvenile of the consent calendar case plan, the court shall close the case and may destroy all records of the proceeding. No report or abstract may be made to any other agency nor may the court require the juvenile to be fingerprinted for a case completed and closed on the consent calendar.
(8) Transfer to Formal Calendar. If it appears to the court at any time that the proceeding on the consent calendar is not in the best interest of either the juvenile or the public, the court may, without hearing, transfer the case from the consent calendar to the formal calendar on the charges contained in the original petition, citation, or appearance ticket. Statements made by the juvenile during the proceeding on the consent calendar may not be used against the juvenile at a trial on the formal calendar on the same charge.
(9) Abstracting. If the court finds that the juvenile has violated the Michigan Vehicle Code. MCL 257.1 et seq., the court must fulfill the reporting requirements imposed by MCL 712 A.2b(d).
(D) [Unchanged.]
Staff Comment; The proposed amendments of MCR 3.932 would allow a court to enter a plea for violations of the Michigan Vehicle Code, and would require a court to report to the Secretary of State violations of the Michigan Vehicle Code that are handled on the court's consent calendar.
The staff comment is not an authoritative construction by the 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 these proposals may be sent to the Supreme Court Clerk in writing or electronically by January 1, 2007, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2005-42. Your comments and the comments of others will be posted at www.courts.mi. gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULE 9.227 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering an amendment of Rule 9.227 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 be considered at a public hearing by the Court before a final decision is made. The schedule and agendas for public hearings are posted on the Court's website, www.courts. michigan.gov/supremecourt.
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 proposals in its current form.
[The present language would be amended as indicated below.]
RULE 9.227. IMMUNITY.
A person is absolutely immune from civil suit for statements and communications transmitted solely to the commissionor its employees, or its agents, or given in an investigation or proceeding on allegations regarding a judge, and no civil action predicated upon the statements or communications may be instituted against a complainant, a witness, or their counsel. Members of the commission,and their employees and agents, masters, and examiners are absolutely immune from civil suit for all conduct in the course of their official duties.
Staff Comment: This proposal would extend immunity from civil suit for statements or communications made to agents of the Judicial Tenure Commission, and would add agents to the individuals who are immune from civil suit for conduct in the course of their official duties with the commission.
The staff comment is not an authoritative construction by the 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 these proposals may be sent to the Supreme Court Clerk in writing or electronically by January 1, 2007, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2006-31. Your comments and the comments of others will be posted at www.courts.mi. gov/supremecourt/resources/administrative/index.htm.
PROPOSED ADOPTION OF RULE 19 OF THE STATE BAR OF MICHIGAN. On order of the Court, this is to advise that the Court is considering proposed new Rule 19 of the Rules Concerning the State Bar of Michigan. 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 be considered at a public hearing by the Court before a final decision is made. The schedule and agendas for public hearings are posted on the Court's website, www.courts.michigan.gov/supremecourt.
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.
[The language that follows is new]
RULE 19. CONFIDENTIALITY OF STATE BAR RECORDS.
Records maintained by the state bar pertaining to certain programs are confidential in nature and not subject to disclosure, discovery, or production unless the state bar is ordered to produce the record by a court after notice and a hearing. The programs to which this confidentiality rule applies include:
1. Ethics Committee and Ethics Hotline programs
2. Practice Management Resource Center program
3. Unauthorized Practice of Law program
4. Client Protection Fund program
5. Lawyers and Judges Assistance program.
Disclosure and production may be made in response to a lawfully issued subpoena from a law enforcement agency in connection with a criminal investigation, proceeding, or trial, or voluntarily by the State Bar of Michigan to a governmental agency that requests the assistance of the State Bar of Michigan in conducting an investigation pertaining to an Unauthorized Practice of Law complaint or a Client Protection Fund claim.
"Records" includes letters, memoranda, draft opinions, notes, applications, medical records, psychological and counseling records, and any other document maintained in whatever form that is not otherwise made public by the state bar in conducting its business.
Except as Michigan Rule of Professional Conduct 8.3(c)(2) provides, this rule does not abrogate an attorney's independent obligation under Michigan Rule of Professional Conduct 8.3(a) to report a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer.
Staff Comment: The proposed new rule codifies the practice of the State Bar of Michigan with regard to confidentiality of records maintained relating to various state bar programs.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the 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 these proposals may be sent to the Supreme Court Clerk in writing or electronically by January 1, 2007, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. All comments will be posted on the Court's website. When filing a comment, please refer to ADM File No. 2005-41.