Opinion
No. 97-56.
December 21, 1999.
On order of the Court, this is to advise that the Court is considering an amendment of Rules 2.402 and 3.101 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives. Before adoption or rejection, this proposal will be considered at a public hearing by the Court. The Clerk of the Court will publish a schedule of future public hearings.
As whenever this Court publishes an administrative proposal for comment, we emphasize that 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 2.402 USE OF COMMUNICATION EQUIPMENT
(A) [Unchanged.]
(B) Use. Unless the court orders otherwise, a party may use communication equipment for appearance at a motion hearing, pretrial conference, scheduling conference, or status conference. The party desiring to use communication equipment must provide written notice to the court and all other parties at least 7 days before the day on which the communication equipment is sought to be used, unless good cause is shown to waive the notice requirement. A court may on its own initiative or on the written request of a party, direct that communication equipment be used for a motion hearing, pretrial conference, scheduling conference, or status conference after providing . The court must give notice to the parties before directing on its own initiative that communication equipment shall be used. A party's written request must be made at least 7 days before the day on which the communication equipment is sought to be used, and a copy must be served on the other parties. The court may, with the consent of all parties or for good cause, direct that the testimony of a witness be taken through communication equipment. A verbatim record of the proceeding must still be made.
(C) Burden of Expense. The party who initiates the use of communication equipment shall pay the cost for its use, unless the court otherwise directs. If the use of communication equipment is initiated by the court, [t]he cost for the use of the communication equipment is to be shared equally, unless the court otherwise directs.
Staff comment:
The proposed amendments of MCR 2.402(B) and (C) have been recommended by the Representative Assembly of the State Bar of Michigan to establish a preference for using available technology, and to thus reduce the cost of litigation.
RULE 3.101 GARNISHMENT AFTER JUDGMENT
(A) — (E) [Unchanged.]
(F) Service of Writ.
(1) The plaintiff shall serve the writ of garnishment, a copy of the writ for the defendant, the disclosure form with the case information filled in, and any applicable fees, on the garnishee within 91 days after the date the writ was issued in the manner provided for the service of a summons and complaint in MCR 2.105.
(2) [Unchanged.]
(G) — (I) [Unchanged.]
(J) Payment.
(1) Subject to subrule (J)(8),Aafter 28 days from the date of the service of the writ on the garnishee, the garnishee shall transmit all withheld funds to the plaintiff or the court as directed by the court pursuant to subrule (E)(3)(e) unless notified that objections have been filed.
(2) — (7) [Unchanged.]
(8) If the garnishee is indebted to the defendant for earnings, the garnishee may withhold from transmittal and keep for itself the actual unreimbursed costs that it incurred in filing the disclosure required by subrule (H). The amount shall not exceed 10% of the amount that would otherwise be transmitted, or $75.00, whichever is less. The garnishee may retain this amount only if the garnishee provides to the plaintiff and the defendant, before or at the time of transmittal, and on a form approved by the State Court Administrator, an affidavit setting forth its actual costs. The amount of the unpaid judgment shall not be reduced by the amount of unreimbursed costs retained by the garnishee.(K) — (T) [Unchanged.]
Staff Comment: The proposed amendments of MC R 3.101 (F) and (J) are based on a recommendation from the Representative Assembly of the State Bar of Michigan, in response to complaints about the high, unreimbursed costs incurred by garnishees in filling out forms and responding to writs of garnishment.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
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Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered, and your assistance is appreciated 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 within 60 days after it is published in the Michigan Bar Journal. When filing a comment, please refer to our file No. 97-56.