Opinion
No. 128161.
March 8, 2007.
Court of Appeals No. 250000.
Order Entered March 8, 2007.
On February 20, 2007, the United States Supreme Court entered an order that vacated this Court's opinion in this case, and remanded this case to this Court for further consideration in light of Cunningham v California, 549 US ___; 127 S Ct 856; 166 L Ed 2d 856 (2007). On order of the Court, this case shall be argued and submitted to the Court together with the cases of People v Burns (Docket No. 131898), and People v Harper (Docket No. 130988), at such future session of the Court as the cases are ready for submission. The parties shall file supplemental briefs by April 4, 2007, addressing the effect, if any, of Cunningham v California on the prison sentence imposed in this case, and on this Court's vacated opinion in this case, People v McCuller, 475 Mich 176 (2006). The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae by April 4, 2007. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae by April 4, 2007.
Order Entered March 14, 2007:
PROPOSED AMENDMENT OF RULE 8.110 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering an amendment of Rule 8.110 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. The notices and agendas for public hearings are posted on the Court's website at 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 present language would be amended as indicated below]
RULE 8.110. CHIEF JUDGE RULE.
(A)-(C) [Unchanged.]
(D) Court Hours; Court Holidays; Judicial Absences.
(1)-(5) [Unchanged.]
(6) Medical Leave. A judge, a judge of the Court of Appeals, or a justice of the Supreme Court must provide medical documentation verifying the need for medical leave if requested by the chief judge or chief justice. A judge in a single-judge court must provide this medical documentation to the state court administrator at the state court administrator's request. The chief judge or chief justice shall report to the state court administrator any judge or justice who uses more than 12 consecutive weeks of medical leave or who provides medical documentation that the chief judge or chief justice deems insufficient. Upon receiving such notification the state court administrator may require that judge or justice to submit to an independent medical examination. (6) (7) [Unchanged]
Staff Comment: The proposed amendment of Rule 8.110 of the Michigan Court Rules would allow a chief judge or the chief justice to request medical documentation verifying the need for a judge's or justice's medical leave. The decision to request medical documentation would be at the discretion of the chief judge or chief justice. Failure to provide sufficient documentation for sick leave or a sick-leave absence that lasts for more than 12 consecutive weeks would require the chief judge or chief justice to report that fact to the state court administrator, who would then be authorized to order an independent medical examination.
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 July 1, 2007, at PO. Box 30052, Lansing, Ml 48909, or MSC_clerk@courts.mi.gov. Your comments and the comments of others will be posted at www. courts.mi.gov/supremecourt/resources/administrative/index.htm. When filing a comment, please refer to ADM File No. 2005-20.
Order Entered March 21, 2007:
PROPOSED AMENDMENT OF RULES 5.207, 5.302, 5.307, AND 5.409 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering amending Rules 5.207, 5.302, 5.307, and 5.409 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. The notices and agendas for public hearings are posted on the Court's website at 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 present language would be amended as indicated below.]
RULE 5.207. SALE OF REAL ESTATE.
(A) Petition. Any petition to approve the sale of real estate must contain the following:
(1) the terms and purpose of the sale,
(2) the legal description of the property,
(3) the financial condition of the estate before the sale, and
(4) an appended copy of the most recent assessor statementor tax statement showing the state equalized value of the property. If the court is not satisfied that the evidence provides the fair market value, a written appraisal may be ordered.
(B) [Unchanged.]
RULE 5.302. COMMENCEMENT OF DECEDENT ESTATES.
(A) Methods of Commencement. A decedent estate may be commenced by filing an application for an informal proceeding or a petition for a formal testacy proceeding. A request for supervised administration may be made in a petition for a formal testacy proceeding. When filing either an application or petition to commence a decedent estate, a copy of the death certificate must be attached. If the decedent's domicile as reflected on the death certificate is different than the domicile alleged on the application or petition, the applicant or petitioner must either file an amended death certificate or file a petition to determine domicile with a petition for a formal testacy proceeding and set the matter for hearing with the court. If the death certificate is not available, the petitioner may provide alternative documentation of the decedent's death. Requiring additional documentation, such as information about the proposed or appointed personal representative, is prohibited.
(B)-(D) [Unchanged.]
RULE 5.307. REQUIREMENTS APPLICABLE TO ALL DECEDENT ESTATES.
(A) [Unchanged.]
(B) Notice to Personal Representative. At the time of appointment, the court must provide the personal representative with written notice of information to be provided to the court. The notice should be substantially in the following form or in the form specified by MCR 5.310(E), if applicable:
"Inventory Information: Within 91 days of the date of the letters of authority, you must submit to the court the information necessary for computation of the probate inventory fee. You must also provide the name and address for each financial institution listed on your inventory at the time the inventory is presented to the court.
"Change of Address: You must keep the court and all interested persons informed in writing within 7 days of any change in your address.
"Notice of Continued Administration: If you are unable to complete the administration of the estate within one year of the original personal representative's appointment, you must file with the court and all interested persons a notice that the estate remains under administration, specifying the reason for the continuation of the administration. You must give this notice within 28 days of the first anniversary of the original appointment and all subsequent anniversaries during which the administration remains uncompleted.
"Duty to Complete Administration of Estate: You must complete the administration of the estate and file appropriate closing papers with the court. Failure to do so may result in personal assessment of costs."
(C)-(D) [Unchanged.]
ALTERNATIVE A:
RULE 5.409. REPORT OF GUARDIAN; INVENTORIES AND ACCOUNTS OF CONSERVATORS.
(A) [No change.]
(B) Inventories.
(1) [No change.]
(2) Filing and Service. Within 56 days after appointment, a conservator or, if ordered to do so, a guardian shall file with the court a verified inventory of the estate of the protected person, serve copies on the persons required by law or court rule to be served, and file proof of service with the court.Property the protected person owns jointly or in common with others must be listed on the inventory along with the type of ownership. (3) Contents. The guardian or conservator must provide the name and address of each financial institution listed on the inventory. Property that the protected individual owns jointly or in common with others must be listed on the inventory along with the type of ownership and value.
(C) Accounts.
(1) Filing, Service. A conservator must file an annual account unless ordered not to by the court. A guardian must file an annual account if ordered by the court. The provisions of the court rules apply to any account that is filed with the court even if the account was not required by court order. The account must be served on interested persons, and proof of service must be filed with the court. The copy of the account served on interested persons must include a notice that any objections to the account should be filed with the court and noticed for hearing. When required, an accounting must be filed within 56 days after the end of the accounting period.
(2)-(3) [Unchanged.]
(4) Exception, Conservatorship of Minor. Unless otherwise ordered by the court, no accounting is required in a minor conservatorship where the assets are restricted or in a conservatorship where no assets have been received by the conservator. If the assets are ordered to be placed in a restricted account, proof of the restricted account must be filed with the court within 14 28 days of the conservator's qualification or as otherwise ordered by the court. The conservator must file with the court an annual verification of funds on deposit with a copy of the corresponding financial institution statement attached.
(5) Contents. The accounting is subject to the provisions of MCR 5.310(C)(2)(c) and (d), except that references to a personal representative shall be to a conservator. An annual verification of funds on deposit reflecting all liquid assets held by a financial institution dated within 30 days after the end of the accounting period must be filed with the court to reflect the value of all liquid A copy of the corresponding financial institution statement for all liquid assets, dated within 30 days of the end of the accounting period, must be presented to the court to verify assets on hand at the end of the accounting period, unless waived by the court for good cause.
(6) [Unchanged.]
(D)-(F) [Unchanged.]
ALTERNATIVE B:
RULE 5.409. REPORT OF GUARDIAN; INVENTORIES AND ACCOUNTS OF CONSERVATORS.
(A) [No change.]
(B) Inventories.
(1) [No change.]
(2) Filing and Service. Within 56 days after appointment, a conservator or, if ordered to do so, a guardian shall file with the court a verified inventory of the estate of the protected person, serve copies on the persons required by law or court rule to be served, and file proof of service with the court.Property the protected person owns jointly or in common with others must be listed on the inventory along with the type of ownership. (3) Contents. The guardian or conservator must provide the name and address of each financial institution listed on the inventory. Property that the protected individual owns jointly or in common with others must be listed on the inventory along with the type of ownership and value.
(C) Accounts.
(1) Filing, Service. A conservator must file an annual account unless ordered not to by the court. A guardian must file an annual account if ordered by the court. The provisions of the court rules apply to any account that is filed with the court even if the account was not required by court order. The account must be served on interested persons, and proof of service must be filed with the court. The copy of the account served on interested persons must include a notice that any objections to the account should be filed with the court and noticed for hearing. When required, an accounting must be filed within 56 days after the end of the accounting period.
(2)-(3) [Unchanged.]
(4) Exception, Conservatorship of Minor. Unless otherwise ordered by the court, no accounting is required in a minor conservatorship where the assets are restricted or in a conservatorship where no assets have been received by the conservator. If the assets are ordered to be placed in a restricted account, proof of the restricted account must be filed with the court within 14 28 days of the conservator's qualification or as otherwise ordered by the court. The conservator must file with the court an annual verification of funds on deposit with a copy of the corresponding financial institution statement attached.
(5) Contents. The accounting is subject to the provisions of MCR 5.310(C)(2)(c) and (d), except that references to a personal representative shall be to a conservator. Either a A copy of the corresponding financial institution statement must be presented to the court or a verification of funds on deposit must be filed with the court reflecting the value of all liquid assets held by a financial institution dated within 30 days after the for all liquid assets, dated within 30 days of the end of the accounting period, must be presented to the court to verify assets on hand at the end of the accounting period, unless waived by the court for good cause.
(6) [Unchanged.]
(D)-(F) [Unchanged.]
Staff Comment: These amendments were proposed by the Probate and Estate Planning Section of the State Bar of Michigan. They are intended to address and clarify practice issues within the amended rules. The proposed amendment of MCR 5.207(A)(4) provides the alternative to include a tax statement to show the state equalized value on property. The proposed amendment of MCR 5.302(A) clarifies the process for courts and petitioners when there is a discrepancy between the domicile of the decedent as noted on the death certificate and the petition or application for probate. The proposed amendments of MCR 5.307(B) and MCR 5.409(B)(3) require the name and address of each financial institution be added to the inventory. The proposed amendment of MCR 5.409(C)(1) requires any account filed with the court to comply with relevant court rules. The proposed amendment of MCR 5.409(C)(4) extends the time in which to file proof of a minor's assets in a restricted account from 14 to 28 days. The proposed amendment of MCR 5.409(C)(5), in Alternative A, requires an annual verification of funds on deposit be filed with each annual account rather than a copy of the financial institution statement. The proposed amendment of MCR 5.409(C)(5), in Alternative B, allows the option of filing an annual verification of funds on deposit or presenting a copy of a financial institution statement with an annual account.
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 July 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. 2006-28. Your comments and the comments of others will be posted at www.courts.mi.gov/ supremecourt/resources/administrative/index.htm.
Order Entered March 27, 2007:
PROPOSED AMENDMENT OF RULE 3.602 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering amending Rule 3.602 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. The notices and agendas for public hearings are posted on the Court's website at 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 present language would be amended as indicated below.]
Rule 3.602. ARBITRATION.
(A) [Unchanged.]
(B) Proceedings to Compel or to Stay Arbitration.
(1) In a pending action an application to the court for an order A request for an order to compel or to stay arbitration or for another order under this rule must be by motion, which shall be heard in the manner and on the notice provided by these rules for motions. An initial application for an order under this rule, other than in a pending action, must be made by filing a complaint as in other civil actions. If there is not a pending action between the parties, the party seeking the requested relief must first file a complaint as in other civil actions.
(2) On application motion of a party showing an agreement to arbitrate that conforms to the arbitration statute, and the opposing party's refusal to arbitrate, the court may order the parties to proceed with arbitration and to take other steps necessary to carry out the arbitration agreement and the arbitration statute. If the opposing party denies the existence of an agreement to arbitrate, the court shall summarily determine the issues and may order arbitration or deny the application motion.
(3) On application motion. the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. If there is a substantial and good-faith dispute, the court shall summarily try the issue and may enter a stay or direct the parties to proceed to arbitration.
(4) An application motion to compel arbitration may not be denied on the ground that the claim sought to be arbitrated lacks merit or is not filed in good faith, or because fault or grounds for the claim have not been shown.
(C) Action Involving Issues Subject to Arbitration; Stay. Subject to MCR 3.310(E), an action or proceeding involving an issue subject to arbitration must be stayed if an order for arbitration or an application motion for such an order has been made under this rule. If the issue subject to arbitration is severable, the stay may be limited to that issue. If an application motion for an order compelling arbitration is made in the action or proceeding in which the issue is raised, an order for arbitration must include a stay.
(D)-(I) [Unchanged.]
(J) Vacating Award.
(1) A request for an order to vacate an arbitration award under this rule must be made by motion. If there is not a pending action between the parties, the party seeking the requested relief must first file a complaint as in other civil actions. A complaint to vacate an arbitration award must be filed no later than 21 days after the date of the arbitration award.
(1 2) On application motion of a party, the court shall vacate an award if:
(a) the award was procured by corruption, fraud, or other undue means;
(b) there was evident partiality by an arbitrator appointed as a neutral, corruption of an arbitrator, or misconduct prejudicing a party's rights;
(c) the arbitrator exceeded his or her powers; or
(d) the arbitrator refused to postpone the hearing on a showing of sufficient cause, refused to hear evidence material to the controversy, or otherwise conducted the hearing to prejudice substantially a party's rights.
The fact that the relief could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
(2 3) An application motion to vacate an award must bemade filed within 21 91 days after delivery of a copy the date of the award to the applicant, except that if it is predicated on corruption, fraud, or other undue means, it must be made filed within 21 days after the grounds are known or should have been known.
(3 4) In vacating the award, the court may order a rehearing before a new arbitrator chosen as provided in the agreement, or, if there is no such provision, by the court. If the award is vacated on grounds stated in subrule (J)(1)(c) or (d), the court may order a rehearing before the arbitrator who made the award. The time within which the agreement requires the award to be made is applicable to the rehearing and commences from the date of the order.
(4 5) If the application motion to vacate is denied and there is no motion to modify or correct the award pending, the court shall confirm the award.
(K) Modification or Correction of Award.
(1) A request for an order to modify or correct an arbitration award under this rule must be made by motion. If there is not a pending action between the parties, the party seeking the requested relief must first file a complaint as in other civil actions. A complaint to correct or modify an arbitration award must be filed no later than 21 days after the date of the arbitration award.
(1 2) On application made motion of a party filed within21 91 days after delivery of a copy of the date of the award to the applicant, the court shall modify or correct the award if:
(a) there is an evident miscalculation of figures or an evident mistake in the description of a person, a thing, or property referred to in the award;
(b) the arbitrator has awarded on a matter not submitted to the arbitrator, and the award may be corrected without affecting the merits of the decision on the issues submitted; or
(c) the award is imperfect in a matter of form, not affecting the merits of the controversy.
(2 3) If theapplication motion is granted, the court shall modify and correct the award to effect its intent and shall confirm the award as modified and corrected. Otherwise, the court shall confirm the award as made.
(3 4) An application motion to modify or correct an award may be joined in the alternative with an application motion to vacate the award.
(L)-(N) [Unchanged.]
Staff Comment: The proposed amendments from the State Bar of Michigan contain two material revisions. First, the proposed changes eliminate the term "application," and substitute the word "motion" or "complaint," depending on whether there is a pending action. "Application" is not a defined term within the Michigan Court Rules or in the Michigan arbitration act, MCL 600.5001— 600.5035.
Second, the proposed revision clarifies that a complaint to stay or compel arbitration, or to vacate, modify, or correct an award must first be filed, and then a motion, consistent with the spirit of MCR 3.602(B)(1), must be filed. The amendment also sets timing deadlines consistent with the time frame allowed under the federal arbitration act, 9 USC 1 et seq. Under the proposal, a motion to vacate, modify, or correct an award would have to be filed within 91 days (except for claims that an award is based on corruption, fraud, or other undue means, in which case the current 21-day filing period after the grounds were known or should have been known would apply). Three months is the period allowed under the federal arbitration act for a party to bring a motion to vacate, modify, or correct an arbitration award. The proponents assert that the three-month period under the federal act and the 21-day period in MCR 3.602(J)-(K) create confusion with regard to the applicable period in cases that may start as state actions but eventually be removed to federal court on petition of one of the parties.
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 July 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. 2005-31. Your comment and the comments of others will be posted at www.courts.mi.gov/ supremecourt/resources/administrative/htm.
Orders Entered April 10, 2007:
PROPOSED NEW RULES 2E.001 ET SEQ. OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the Court is considering a proposal to adopt new rules regarding electronic filing in Michigan courts. 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 notices 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 current form.
[The language that follows is new.]
SUBCHAPTER 2E.000. APPLICABILITY; CONSTRUCTION.
RULE 2E.001. APPLICABILITY; CITATION.
The rules in this chapter govern the electronic filing and service of documents in all courts established by the constitution and laws of the state of Michigan, and may be referred to as "e-filing rules." Citation for these rules is governed by MCR 1.101.
RULE 2E.002. DEFINITIONS.
For purposes of this chapter:
(A) "Authorized user" means a party or a party's attorney who is registered pursuant to Rule 2E.004 and who has satisfied any requirements imposed by the court relating to electronic filing and service procedures.
(B) "Electronic filing" or "e-filing" means the completed electronic transmission of documents to the court and from the court.
(C) "Electronic filing plan" means a plan prepared by a court in a form approved by the state court administrator addressing the electronic filing and service of documents in that court.
(D) "Electronic filing service provider" means a court, or vendor with court approval, that provides for the electronic service of documents through the Internet.
(E) "Electronic service" or "e-service" means the electronic transmission of documents to a party, a party's attorney, or a party's representative. Unless otherwise expressly authorized by a court, electronic service does not include service of process or summons to gain jurisdiction over persons or property.
(F) "Public access terminal" means a publicly accessible computer terminal maintained at or by the court at which documents may be filed or served under this chapter and on which public court records may be viewed.
RULE 2E.003. SCOPE.
(A) A court whose electronic filing plan has been approved by the state court administrator may do any of the following, consistent with the rules of this chapter:
(1) Accept electronic filing and permit electronic service of documents, except as prohibited by Rule 2E.003(B);
(2) Issue electronic filing guidelines consistent with this chapter. The guidelines must be posted prominently on the court's electronic filing portal;
(3) Mandate electronic filing and electronic service of documents in specified cases;
(4) Electronically issue, file, and serve notices, orders, opinions, and other documents, subject to the provisions of these rules.
(B) Unless expressly authorized by a court, the following documents may not be electronically filed or electronically served:
(1) Documents that are sealed by a court under MCR 8.119(F);
(2) Case evaluation awards, acceptances, and rejections;
(3) Documents for in camera review;
(4) Documents that have access restricted by statute, court rule, or court order.
If a court expressly authorizes the filing of such documents, specific requirements regarding service must be completed as prescribed by the court, such as redacting confidential information.
RULE 2E.004. AUTHORIZED USERS.
(A) Only authorized users may engage in electronic filing or service. To become an authorized user, a person must complete registration with an electronic filing service provider and the electronic filing service provider must approve the person's registration.
(B) A court may revoke user authorization for good cause as determined by the court, including but not limited to a security breach or failure to comply with system requirements.
(C) An authorized user must notify the court and the electronic filing service provider of any change in the authorized user's firm name, delivery address, telephone number, fax number, e-mail address, or other required registration information. This notice must occur as soon as practicable but no later than 7 days after the effective date of the change.
RULE 2E.005. SERVICE FEES.
Service fees approved by the court may be assessed by an electronic filing service provider.
RULE 2E.006. SIGNATURES.
(A) A pleading, document, or instrument electronically filed or electronically served under this chapter shall be deemed to have been signed by the judge, court clerk, attorney, or declarant.
(B) Documents containing signatures of third parties (i.e., affidavits, stipulations, etc.) may also be filed electronically by indicating that the original signatures are maintained by the filing party. Signed copies shall be provided to the parties or court upon request.
RULE 2E.007. RETENTION OF DOCUMENTS.
Unless otherwise ordered by the court, copies of all documents filed or served electronically under this chapter shall be maintained by the party filing those documents and shall be made available, upon reasonable notice, for inspection or copying. Parties shall retain such copies until final disposition of the case and the expiration of all appeal opportunities.
RULE 2E.008. TRANSMISSION FAILURES.
(A) In the event of a transmission failure, a party may file a motion requesting that the court enter an order permitting a document to be deemed filed nunc pro tunc on the date it was first attempted to be sent electronically. The moving party must prove to the court's satisfaction that:
(1) the transmission was attempted at the time asserted by the party;
(2) the transmission failed because of the failure of the electronic filing service provider to process the electronic document; and
(3) the transmission failure was not caused, in whole or in part, by any action or inaction of the party.
SUBCHAPTER 2E.100. ELECTRONIC FILING.
RULE 2E.101. TIME AND EFFECT.
(A) A pleading filed electronically shall be considered filed with the court when the transmission to the electronic filing service provider is complete. The court's e-filing plan must state the time by which transmissions must be completed to be considered filed by the close of business on that day.
(B) If the court rejects a submitted document pursuant to court rule, the court shall notify the filer of the rejection and the document shall not become part of the official court record.
RULE 2E.102. E-FILING TRANSACTION RECEIPT.
Upon completion of an electronic filing transmission to an electronic filing service provider, the electronic filing service provider shall issue to the authorized user and to the court a transaction receipt that includes the date and time of the transmission, and the size of the transmission.
RULE 2E.103 ELECTRONIC CASE FILE.
The court may maintain the official case file in electronic format, if it is able to conform to the retention period required in General Schedule 16.
RULE 2E.104. PAYMENT OF FILING FEES.
(A) Authorized users may pay filing fees electronically through an electronic filing service provider.
(B) A filing fee is due and payable at the time of the transmission of the electronic document unless the fee is waived by the court pursuant to court rule. Failure to timely pay a filing fee may result in the rejection of the filing by the court.
RULE 2E.105. PUBLIC ACCESS TERMINALS.
When an e-filing system becomes mandatory for some or all cases in a court, that court must provide a public access terminal that is available during the hours the court is open to enable electronic filings in conformity with this chapter.
SUBCHAPTER 2E.200. ELECTRONIC SERVICE.
RULE 2E.201. GENERAL PROVISIONS.
(A) Except as prohibited by Rule 2E.003(B), if authorized by the court, service of process may be accomplished electronically among authorized users through the electronic filing service provider.
(B) Delivery of documents through the electronic filing service provider in conformity with these rules and any applicable court order shall be considered valid and effective service.
RULE 2E.202. TIME AND EFFECT.
A document served electronically through an electronic filing service provider in conformity with all applicable requirements of this chapter shall be considered served when the transmission from the electronic filing service provider to the recipient's e-mail address is complete, except that for the purpose of computing time to respond, a document filed or served after 5:00 p.m. local court time shall be deemed to have been served on the next day that is not a Saturday, Sunday, or legal holiday.
RULE 2E.203. E-SERVICE TRANSACTION RECEIPT.
Upon completion of an electronic service transaction, the electronic filing service provider shall issue to the authorized user and to the court a transaction receipt that includes the date and time of service. The transaction receipt serves as proof of service.
Staff Comment: In May 2003, this Court adopted an order authorizing several e-filing pilot projects in trial courts, and instructed that an e-filing subcommittee be formed within the Technical Advisory Group (TAG). The subcommittee drafted rules, which were then adopted by the TAG. This proposal is drafted substantially as adopted by the TAG.
Under the proposed rules, an authorized user would file documents with an electronic filing service provider. The draft rules require a court to submit a plan to State Court Administrative Office for approval before implementing an e-filing system. Specified documents would not be allowed to be transmitted, unless expressly authorized by the court.
In the event of transmission failure, the draft rules would allow a party to file a motion with the court asking that the document be deemed filed nunc pro tunc on the date it was first attempted, if the failed transmission was not the filing party's fault. Upon completion of an electronic filing transmission, the electronic filing service provider must issue a receipt to the authorized user that records the date and time of transmission.
Courts would be allowed to maintain the official case file in electronic format under the proposal. Filing fees would be required to be paid at the time of transmission unless the fee is waived by the court. Further, a court that accepts electronic filings would be required to provide a public access terminal to enable electronic filings.
Service of process would also be authorized under the subcommittee's draft rules. Electronic service is defined in the draft rules as "the electronic transmission of documents to a party, an attorney, or a party's representative." However, such service does not include service of process or summons to gain jurisdiction, unless expressly authorized by the court.
This 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 this proposal may be sent to the Supreme Court Clerk in writing or electronically by August 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 submitting a comment, please refer to ADM File No. 2002-37.
PROPOSED AMENDMENT OF RULE 2.107 OF THE MICHIGAN COURT RULES. On order of the Court, this is to advise that the court is considering an amendment of Rule 2.107 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 notices and agendas for public hearings are posted on the Court's website, www.courts.michigan.gov/supremecourt.
Publication of these proposals does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposals in their present form.
[The present language would be amended as indicated below.]
RULE 2.107. SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS.
(A-B) [Unchanged.]
(C) Manner of Service. Service of a copy of a paper on an attorney must be made by delivery or by mailing to the attorney at his or her last known business address or, if the attorney does not have a business address, then to his or her last known residence address. Service on a party must be made by delivery or by mailing to the party at the address stated in the party's pleadings.
(1) Delivery to Attorney. Delivery of a copy to an attorney within this rule means
(a) handing it to the attorney personally;
(b) leaving it at the attorney's office with the person in charge or, if no one is in charge or present, by leaving it in a conspicuous place; or
(c) if the office is closed or the attorney has no office, by leaving it at the attorney's usual residence with some person of suitable age and discretion residing there.
(2) Delivery to Party. Delivery of a copy to a party within this rule means
(a) handing it to the party personally; or
(b) leaving it at the party's usual residence with some person of suitable age and discretion residing there.
(3) Mailing. Mailing a copy under this rule means enclosing it in a sealed envelope with first class postage fully prepaid, addressed to the person to be served, and depositing the envelope and its contents in the United States mail. Service by mail is complete at the time of mailing.
(4) E-mail. Some or all of the parties may stipulate service of papers by e-mail. (a) The stipulation of service by e-mail shall set forth the following: (i) the e-mail addresses of all stipulating attorneys of record and any of their paralegals or assistants charged with receipt of the attorney's e-mail; (ii) a subject line that identifies the case by party name and case number, along with the title or legal description of the document(s) being sent: and (iii) the primary document format through which the parties shall send and receive documents by e-mail. (b) The sending e-mail address shall allow for receipt of a reply e-mail. (c) E-mail transmission after 4:00 p.m. Eastern Time shall be deemed to be served on the next day that is not a Saturday. Sunday or legal holiday.
(D-F) [Unchanged.]
(G) Filing With Court Defined. The filing of pleadings and other papers with the court as required by these rules must be with the clerk of the court, except that the judge to whom the case is assigned may accept papers for filing when circumstances warrant. A judge who does so shall note the filing date on the papers and transmit them forthwith to the clerk. It is the responsibility of the party who presented the papers to confirm that they have been filed with the clerk. The date the pleadings are filed, which includes receipt by mail, shall be noted on the docketing statement if different from the date the pleadings are docketed.
Staff Comment: The proposed amendments were adopted by the State Bar of Michigan Representative Assembly for submission to the Supreme Court. The proposal would allow parties to stipulate to agree to electronic discovery, or service of papers among the parties, by e-mail. The proposal would also require that court clerks note the date pleadings are filed if that date is different from the date the filing is docketed.
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 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 August 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. 2007-12.