Opinion
December 21, 2010.
MICHIGAN REPORTS.
Orders Entered December 21, 2010:
On order of the Court, this is to advise that the Court is considering amendment of Rules 2'.112, 7.206, and 7.213 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 public hearings are posted on the Supreme Court's website at the following address: www.courts.micmgan.gov/supremecourt/Resources/Administrative/ph.htm.
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 is amended below with additions indicated in underlining and deletions indicated in strikeover.]
RULE 2.112. PLEADING SPECIAL MATTERS.
(A)-(L) [Unchanged.]
(M) Headlee Amendment Actions. In an action brought pursuant to Const. 1963, art 9. § 32. alleging a violation of Const. 1963, art 9, §§ 25-34, the pleadings shall conform to the requirements of MCR 2.111 factual basis for the alleged violation or a defense must be stated with particularity. In an action involving Const 1063, art 9, § 29, the plaintiff must state with particularity the type and extent of the harm and whether there has been a violation of either the first or second sentence of that section. In an action involving the second sentence of Const. 1963, art 9, 820, the plaintiff must state with particularity the activity or service involved. All statutes involved in the ease must be identified, and copies of all ordinances and municipal charter provisions involved, and any available documentary evidence supportive of a claim or defense, must be attached to the pleading. The parties may supplement their pleadings with additional documentary evidence as it becomes available to them.
(N) [Unchanged.]
RULE 7.206. EXTRAORDINARY WRITS, ORIGINAL ACTIONS, AND ENFORCEMENT ACTIONS.
(A)-(C) [Unchanged.]
(D) Actions for Extraordinary Writs and Original Actions.
(1) Filing of Complaint. To commence an original action, the plaintiff shall file with the clerk:
(a) for original actions filed under Const. 1963, art 9, §§ 25-34, 5 copies of a complaint (one signed) that conforms to the special requirements-of MCR 2.112(M), and, which indicates whether there are any factual questions that must be resolved; for all other extraordinary writs and original actions, 5 copies of a complaint (one signed), which may have copies of supporting documents or affidavits attached to each copy;
(b) 5 copies of a supporting brief (one signed) conforming to MCR 7.212(C) to the extent possible;
(c) proof that a copy of each of the filed documents was served on every named defendant and, in a superintending control action, on any other party involved in the case which gave rise to the complaint for superintending control; and
(d) the entry fee.
(2) Answer. The defendant or any other interested party must file with the clerk within 21 days of service of the complaint and any supporting documents or affidavits:
(a) for original actions filed under Const. 1063, art 9, §§ 25-34, 5 copies of an answer to the complaint (one signed) that conforms to the special requirements of MCR 2.112(M) , and which indicates whether there are any factual questions that must be resolved; for all other extraordinary writs and original actions, 5 copies of an answer to the complaint (one signed), which may have copies of supporting documents or affidavits attached to each copy;
(b) 5 copies of an opposing brief (one signed) conforming to MCR 7.212(D) to the extent possible; and
(c) proof that a copy of each of the filed documents was served on the plaintiff and any other interested party.
(3) [Unchanged.]
(E) Actions to Enforce the Headlee Amendment. Pursuant to Const. 1963. art 9. § 32. (1) Filing of Complaint. To commence an action pursuant to Const. 1963. art 9. § 32. the plaintiff shall file with the clerk: (a) 5 copies of the complaint (1 signed) which indicates, inter alia. whether there are any factual questions that are anticipated to require resolution by the court: (b) proof that a copy of each of the filed documents was served on every named defendant and the office of the attorney general; and (2) Answer. The named defendant(s) shall file with the clerk within 21 days of service of the complaint: (a) 5 copies of an answer to the complaint (1 signed) which indicates. inter alia, whether there are any factual questions that must be resolved by the court from the defendant's perspective. (b) proof that a copy of each of the filed documents was served on every named plaintiff. (3) Subsequent proceedings. Following receipt of the answer: (a) the chief judge shall promptly assign a panel of the court to commence proceedings in the suit: (b) the suit may be referred by the panel of the court to a special masto for purposes of pretrial proceedings, conducting a trial to receive evidence and arguments of law, and issue a written report for the court setting forth findings of fact and conclusion of law. The proceedings before the special master shall proceed as expeditiously as due consideration of the facts and issues of law requires; (c) if the panel of the court determines that the issues framed in the parties' pleadings solely present questions of law, the court may elect not to refer the suit to a special master: and (d) following receipt of the report from the special master or upon the panel electing not to refer the suit to a special master, the court shall notify counsel for the parties of the schedule for filing briefs in response to the special master's report or based on the issues framed in the pleadings and setting the date for oral argument, which shall be on an expedited basis. The proceedings shall take precedence over other non-emergency matters pending before the court. (E) (F)[Former (E) has been relettered as (F). but otherwise is unchanged.]
RULE 7.213. CALENDAR CASES.
(A)-(B)[Unchanged.]
(C) Priority on Calendar. The priority of cases on the session calendar is in' accordance with the initial filing dates of the cases, except that precedence shall be given to:
(1) interlocutory criminal appeals;
(2) child custody cases;
(3) interlocutory appeals from the grant of a preliminary injunction;
(4) appeals from all cases involving election issues, including, but not limited to, recall elections and petition disputes;
(5) appeals of decisions holding that a provision of the Michigan Constitution, a Michigan statute, a rule or regulation included in the Michigan Administrative Code, or any other action of the legislative or executive branch of state government is invalid; and
(6) actions brought under sections 29-34 of the Michigan Constitution (Headlee actions): and
(7) cases that the court orders expedited.
(D)-(E) [Unchanged.]
Staff Comment: The proposed amendments of MCR 2.112 and MCR 7.206 were submitted by the Legislative Commission on Statutory Mandates as a way to increase the efficiency with which Headlee actions are considered and disposed in Michigan courts, and to regularize the procedures that relate to Headlee proceedings. The proposed amendment of MCR 7.213 was added to the proposal as a corollary to proposed MCR 7.206 to clarify the prioritization of cases.
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 April 1, 2011, at RO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2010-05. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULE 3.501 OF THE MICHIGAN COURT RULES.
On order of the Court, this is to advise that the Court is considering alternative amendments of Rule 3.501 of the Michigan Court Rules. Before determining whether one of the alternative proposals 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 public hearings are posted at the following website address: www.courts.michigan.gov/ supreme court/resources/administrative/ph.htm.
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 is amended below with additions indicated in underlining and deletions indicated in strikeover.] ALTERNATIVE A
RULE 3.501. CLASS ACTIONS.
(A) [Unchanged.]
(B) Procedure for Certification of Class Action. (1) Motion:Supplemental Motions: Motion for Revocation or Amend.
(a) Within 91 days after the filing of a complaint that includes class action allegations, the plaintiff must move for certification that the action may be maintained as a class action.
(b) The time for filing the motion may be extended by order on stipulation of the parties or on motion for cause shown.
(c) A party may file a supplemental motion for certification of a class if the circumstances surrounding the initial motion for certification have substantially changed following the filing of the initial motion. A supplemental motion must be filed within 21 days of the date when the party knew or should have known of the changed circumstances. (d) A party may file a motion for revocation or amendment of the certification.
(2) Effect of Failure to File Motion. If the plaintiff fails to file a certification motion within the time allowed by subrule (B)(1) (a), the defendant may file a notice of the failure. On the filing of such a notice, the class action allegations are deemed stricken, and the action continues by or against the named parties alone. The class action allegations may be reinstated only if the plaintiff shows that the failure was due to excusable neglect.
(3) Action by Court.
(a) Except on motion for good cause, the court shall not proceed with consideration of the motion to certify until service of the summons and complaint on all named defendants or until the expiration of any unserved summons under MCR 2.102(D).
(b) The court may allow the action to be maintained as a class action, may deny the motion, or may order that a ruling be postponed pending discovery or other preliminary procedures.The court also may consider a supplemental motion for certification, or a motion to revoke or amend the certification.
(c) In an order certifying a class action, the court shall set forth a description of the class.
(d) When appropriate the court may order that
(i) the action be maintained as a class action limited to particular issues or forms of relief, or
(ii) a proposed class be divided into separate classes with each treated as a class for purposes of certifying, denying certification, or revoking a certification.
(e) If certification is denied or revoked, the action shall continue by or against the named parties alone.
(C)-(I) [Unchanged.]
ALTERNATIVE B
RULE 3.501. CLASS ACTIONS.
(A) [Unchanged.]
(B) Procedure for Certification of Class Action.
(1) Motion.
(a) Within 91 days after the filing of a complaint that includes class action allegations, the plaintiff must move for certification that the action may be maintained as a class action. A plaintiff is entitled to file one and only one motion for class certification.
(b) The time for filing the motion may be extended by order on stipulation of the parties or on motion for cause shown.
(2) Effect of Failure to File Motion. If the plaintiff fails to file a certification motion within the time allowed by subrule (B)(1), the defendant may file a notice of the failure. On the filing of such a notice, the class action allegations are deemed stricken, and the action continues by or against the named parties alone. The class action allegations may be reinstated only if the plaintiff shows that the failure was due to excusable neglect.
(3) Action by Court.
(a) Except on motion for good cause, the court shall not proceed with consideration of the motion to certify until service of the summons and complaint on all named defendants or until the expiration of any unserved summons under MCR 2.102(D).
(b) The court may allow the action to be maintained as a class action, may deny the motion, or may order that a ruling be postponed pending discovery or other preliminary procedures.After granting a motion to certify a class action, the court may amend or revoke the certification.
(c) In an order certifying a class action, the court shall set forth a description of the class.
(d) When appropriate the court may order that (i) the action be maintained as a class action limited to particular issues or forms of relief, or
(ii) a proposed class be divided into separate classes with each treated as a class for purposes of certifying, denying certification, or revoking a certification.
(e) If certification is denied or revoked, the action shall continue by or against the named parties alone.
(C)-(I) [Unchanged.]
Staff Comment: The proposed amendment of MCR 3.501(B) in Alternative A would require a change in circumstances to have occurred that would allow a party to file a supplemental motion for certification of a class within 21 days of the party's knowledge of the changed circumstances. The proposed amendment also would allow a party to file a motion for revocation or amendment of the certification. The court as well would be allowed to consider supplemental motions to recertify and revoke or amend the certification. The proposed amendment of MCR 3.501(B) in Alternative B would clarify that only one motion for certification may be brought, and that once granted, the certification may be amended or revoked.
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 April 1, 2011, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2008-18. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULE 6.005 OF THE MICHIGAN COURT RULES.
On order of the Court, this is to advise that the Court is considering an amendment of Rule 6.005 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 public hearings are posted at www.courts.michigan.gov/supreme court/Resources/Administrative/ ph.htm.
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 is amended below with additions indicated in underlining and deletions indicated in strikeover.]
RULE 6.005. RIGHT TO ASSISTANCE OF LAWYER; ADVICE; APPOINTMENT FOR INDIGENTS; WAIVER; JOINT REPRESENTATION; GRAND JURY PROCEEDINGS.
(A)-(G) [Unchanged.]
(H) Scope of Trial Lawyer's Responsibilities. The responsibilities of the trial lawyer appointed to represent the defendant include
(1) representing the defendant in all trial court proceedings through initial sentencing,
(2) filing of interlocutory appeals the lawyer deems appropriate, and
(3) responding to any preconviction appeals by the prosecutor;The defendant's lawyer must either: (i) file a substantive brief in response to a prosecutor's interlocutory application for leave to appeal, or (ii) notify the Court of Appeals that the lawyer will not be filing a brief in response to the application,and
(4) Unless unless an appellate lawyer has been appointed, the trial lawyer appointed to represent the defendant is responsible for filing of postconviction motions the lawyer deems appropriate, including motions for new trial, for a directed verdict of acquittal, to withdraw plea, or for resentencing.
(I) [Unchanged.] Staff Comment: The proposed amendment would revise MCR 6.005(H) to clarify that appointed defense counsel in a criminal proceeding either must file a substantive response to a prosecutor's application for interlocutory appeal or notify the Court of Appeals that the lawyer intends not to submit a pleading.
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 April 1, 2011, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2008-28. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULE 3 OF THE RULES CONCERNING THE STATE BAR OF MICHIGAN AND RULE 8 OF THE RULES FOR THE BOARD OF LAW EXAMINERS.
On order of the Court, this is to advise that the Court is considering amendment of Rule 3 of the Rules Concerning the State Bar of Michigan and Rule 8 of the Rules for the Board of Law Examiners. 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 at http://rourte.niicm'gan.gov/supremecourtyResources/Administrati ve/ph.htm.
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 is amended below with additions indicated in underlining and deletions indicated in strikeover] RULES CONCERNING THE STATE BAR OF MICHIGANRULE 3. MEMBERSHIP CLASSES.
(A)-(D) [Unchanged.]
(E) Resignation. An active or inactive member who is not subject to pending disciplinary action in this state or any other jurisdiction may resign from membership by notifying the secretary of the State Bar in writing. The secretary shall notify the member when the request is accepted, whereupon the member no longer will be qualified to practice law in Michigan and no longer will be eligible to receive any other member benefits. The secretary of the State Bar also shall notify the clerk of the Supreme Court of the resignation. To be readmitted as a member of the State Bar, a person who hasvoluntarily resigned and who is not otherwise eligible for admission without examination under Rule 5 of the Rules for the Board of Law Examiners must reapply for admission, satisfy the Board of Law Examiners that the person possesses the requisite character and fitness to practice law, obtain a passing score on the Michigan Bar Examination, and pay applicable fees and dues. Resignation does not deprive the Attorney Grievance Commission or the Attorney Discipline Board of jurisdiction over the resignee with respect to misconduct that occurred before the effective date of resignation.
(F) Emeritus Membership. Effective October 1, 2004, an active or inactive member who is 70 years of age or older or has been a member of the State Bar for at least 30 years, and who is not subject to pending disciplinary action in this state or any other jurisdiction, may elect emeritus status by notifying the secretary of the State Bar in writing. The secretary shall notify the member when the request is accepted, whereupon the member no longer will be qualified to practice law in Michigan, but will be eligible to receive other member benefits as directed by the Board of Commissioners of the State Bar. The secretary of the State Bar also shall notify the clerk of the Supreme Court when a member is given emeritus status. Members who were age 70 or older as of October 1, 2003, who resigned or were suspended from membership after October 1, 2003, but before September 30, 2004, for nonpayment of dues are to be automatically reinstated as emeritus members, effective October 1, 2004, unless they notify the secretary of the State Bar that they do not wish to be reinstated.
(1) Grievances and Discipline. Emeritus status does not deprive the Attorney Grievance Commission or the Attorney Discipline Board of jurisdiction over the emeritus member.
(2) Readmission. To be readmitted as an active member of the State Bar, an emeritus member a member who has voluntarily elected emeritus status and who is not otherwise eligible for admission without examination under Rule 5 of the Rules for the Board of Law Examiners must reapply for admission, satisfy the Board of Law Examiners that the person possesses the requisite character and fitness to practice law, obtain a passing score on the Michigan Bar Examination, and pay applicable fees and dues.
RULES FOR THE BOARD OF LAW EXAMINERS
RULE 8. RECERTIFICATION.
An applicant for recertification shall file an application and other material required by the Board. After a hearing the Board shall either recertify the applicant or require that the applicant pass the examination described in Rule 3. An applicant may use the Board's subpoena power for the hearing. An applicant who is an inactive State Bar member or who had previously voluntarily resigned from the State Bar or who previously elected emeritus status, and who has been employed in another jurisdiction in one of the ways listed in Rule 5(A)(6) is entitled to recertification by the Board.
Staff Comment: The proposed amendment of SBR 3(E), submitted by the State Bar of Michigan, would clarify that an out-of-state attorney who voluntarily resigned from the Michigan bar would not be required to retake the Michigan Bar Examination if the person meets the criteria for admission without examination under Rule 5 of the Rules for the Board of Law Examiners. A similar change also would be made in SBR 3(F) regarding emeritus members. Finally, Rule 8 of the Rules for the Board of Law Examiners would be amended to reflect that resigned or emeritus members who seek readmission are covered under Rule 8, which allows for recertification.
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 April 1, 2011, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2009-20. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
PROPOSED AMENDMENT OF RULE 5.208 OF THE MICHIGAN COURT RULES.
On order of the Court, this is to advise that the Court is considering amendment of Rule 5.208 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 at http://courts.michigan.gov/supremecourt/Resources/Administrative/ph.htm.
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 is amended below with additions indicated in underlining and deletions indicated in strikeover.]
RULE 5.208. NOTICE TO CREDITORS, PRESENTMENT OF CLAIMS.
(A) Publication of Notice to Creditors; Contents. Unless the notice has already been given, the personal representative must publish, and a special personal representative may publish, in a newspaper, as defined by MCR 2.106(F), in a county in which a resident decedent was domiciled or in which the proceeding as to a nonresident was initiated, a notice to creditors as provided in MCL 700.3801. The notice must include:
(1) The name, and, if known, last known address,the date of death; and date of birth of the decedent;
(2) The name and address of the personal representative;
(3) The name and address of the court where proceedings are filed; and
(4) A statement that claims will be forever barred unless presented to the personal representative, or to both the court and the personal representative within 4 months after the publication of the notice.
(B)-(F) [Unchanged.]
Staff Comment: This proposed amendment of MCR 5.208(A) would remove the requirement to list a decedent's last known address on the Notice to Creditors form. The proposed revision has been published for comment because of a concern that providing such information and publishing it in a newspaper might identify a location where a surviving spouse may be living and may unnecessarily place such a person at risk of harm. 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 April 1, 2011, at PO. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM Pile No. 2009-29. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.