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State Bar Positions: Rule Amendments and Administrative Orders
Rule Amendments | Administrative Orders | Proposed Rule Amendments | Other
Rule Amendments (in order of effective date)
Immediately
2009-02 - Amendments of Rules 2.105, 2.612, 3.612, 3.802, 3.903, 3.920, 3.921, 3.929, 3.979, 5.125, 5.128, 6.509, 7.208, 7.210, 7.316, and 8.119 of the Michigan Court Rules and Amendment of Administrative Order No. 2006-3
The above noted changes are minor revisions of the rules that have been recommended to the Court to correct cross references and to reflect other technical changes.
2008-26—Amendment of Rule 4 of the Rules Concerning the State Bar of Michigan
This proposal, submitted by the State Bar of Michigan, would allow for a waiver of bar dues for up to four year for members who are in full-time active-duty status in the United States Armed Forces.
Amendments Effective May 1, 2012
2006-20—Proposed Amendment of Rules 2.403, 2.404, 2.410, 2.411 and 3.216 of the Michigan Court Rules
2005-05—Proposed Amendment of Rules 2.403, 2.404, 2.410, 2.411 and 3.216 of the Michigan Court Rules
The proposed amendments of Rules 2.403, 2.404, 2.410, and 2.411 would revise and update the court rules relating to mediation and case evaluation as recommended by the Dispute Resolution Rules Committee convened by the State Court Administrative Office. View the committee’s report. The proposal also contains proposed changes of MCR 3.216 recommended by staff to reflect the changes suggested by the committee of the other rules in the proposal. Please note that the proposed order contains alternative options for MCR 2.403(M)(1). Alternative A, recommended by the committee, would allow subsequent claims to be raised following disposition pursuant to case evaluation, if the claim had not arisen at the time of case evaluation, including in cases that involve personal protection benefits under MCL 500.3101 et seq. Alternative B would allow subsequent claims to be brought only in PIP cases; in all other cases, the acceptance of a case evaluation award would be deemed to dispose of all claims in a case, including any that might arise after case evaluation.
Civil Procedure & Courts Committee Position: View Position
Justice Initiatives Committee Position: View Position
Amendments Effective January 1, 2012
2011-04—Proposed Amendments of Rule 3.911 and Rule 3.915 of the Michigan Court Rules
The proposed amendment of MCR 3.911 would eliminate the 14-day time frame during which a demand for jury must be made. The proposed revision of MCR 3.915 would clarify that counsel should be appointed for a parent even at the preliminary hearing of a child protective proceeding.
SBM Position: View Position
2010-17—Proposed Amendment of Rule 3.707 of the Michigan Court Rules
This proposal, submitted by the Michigan Judges Association, would clarify that the right to bring a motion to modify or terminate a personal protection order as established by MCR 3.707 applies to ex parte PPOs.
SBM Position: View Position
Criminal Jurisprudence & Practice Committee Position: View Position
2010-11—Proposed Amendment of Rule 2.511 of the Michigan Court Rules
Because MCL 600.1337 requires a court to discharge an unqualified juror regardless whether a party challenges the juror for cause, the proposed amendment of MCR 2.511 would eliminate the provision from the list of challenges that may be made for cause, and instead would clarify that the discharge must be made when the court learns that the juror is not qualified to serve. This clarification would foreclose the possibility that an unqualified juror could be allowed to sit because no one challenged his or her qualification.
SBM Position: View Position
2010-05—Proposed Amendment of Rules 2.112, 7.206, and 7.213 of the MIchigan Court Rules
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.
SBM Position: View Position
Appellate Practice Section: View Position
Amendments Effective September 1, 2011
2010-30—Proposed New Rule 2.412 of the Michigan Court Rules and Proposed Amendments of Rules 2.403, 2.411, and 3.216 of the Michigan Court Rules
Proposed new MCR 2.412 and the proposed amendments of MCR 2.403, 2.411, and 3.216 would consolidate provisions related to mediation confidentiality into one rule and would expand the current exceptions to mediation confidentiality, as recommended by the Mediation Confidentiality and Standards of Conduct Committee convened by the State Court Administrative Office.
SBM Position: View Position
Civil Procedure & Courts Committe Committee: View Position
Domestic Violence Committee: View Position
Family Law Section: View Position
2010-08—Proposed Administrative Order No. 2010-X—Proposal to Rescind Administrative Order No. 2003-7 and Adopt Administrative Order No. 2010-X (Caseflow Management Guidelines)
This proposal would update the guidelines contained in Administrative Order 2003-7. The following list summarizes the changes that would be made by the proposed order.
- Add to the beginning of the order language about good cause for delays and remove related language from specific case categories.
- Move to the beginning of the order language about matters submitted to judge (this language currently exists at the end of the order).
- Eliminate all interim guidelines, leaving only initial and final guidelines.
- Decrease time for adjudicating 90% of mental illness petitions from 14 to 7 days. This time frame would apply to probate and circuit courts.
- Eliminate guidelines for miscellaneous cases in probate court.
- Decrease the percentage for preliminary examinations within 14 days from 100% to 80%. Add a 100% guideline for conclusion within 28 days. Extend the goals to include both commencement and conclusion of the examination.
- Increase the time for adjudicating 90% of divorce cases without children from 91 to 182 days.
- Increase the time for adjudicating 90% of divorce cases with children from 245 to 301 days.
- Eliminate guidelines for responding interstate registration cases.
- Increase the time for adjudicating name change from 91 to 126 days.
- Increase the time for adjudicating 90% of felony cases from 91 to 154 days.
SBM Position: View Position
Criminal Jurisprudence & Practice: View Position
Family Law Section: View Position
2009-29—Proposed Amendment of Rule 5.208 of the Michigan Court Rules
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.
SBM Position: View Position
2009-20—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
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.
2009-19—Proposed Amendments of Rules 6.425, 6.502, 7.204, and 7.205 of the Michigan Court Rules
The amendments proposed in this order would impose time limits for the filing of motions for relief from judgment in criminal cases and would shorten time limits for late appeals in both civil and criminal actions. In proposed amendments of MCR 7.204 and MCR 7.205, alternative provisions are offered, under which, upon a showing of excusable neglect, the Court of Appeals or a trial court may grant an extension of time for filing a late appeal.
SBM Position: View Position
Appellate Practice Section Position: View Position
Criminal Law Section: View Postion
2008-28—Proposed Amendment of Rule 6.005 of the Michigan Court Rules
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.
SBM Position: View Position
Criminal Law Section: View Position
Criminal Jurisprudence & Practice Committee: View Position
2008-11—Proposed Amendment of Rule 2.507 of the Michigan Court Rules
This proposed amendment of MCR 2.507was submitted to the Court to clarify that oral agreements not made in open court to settle a case will not be enforceable. Like an agreement subject to the statute of frauds, agreements to settle a case would be required to be made in open court or in writing to be binding.
SBM Position: View Position
Family Law Section: View Position
2007-17—Proposed Amendment of Rule 8.121 of the Michigan Court Rules
This proposed amendment of MCR 8.121was submitted to the Court to address a situation in which attorneys charge more than the one-third contingency fee that is the allowable fee limit charged in wrongful death and personal injury actions.
SBM Position: Oppose
Negligence Law Section Position: View Position
2006-38—Proposed Amendments of Subchapter 9.100 et seq. and Rules 8.110 and 8.120 of the Michigan Court Rules
2005-19—Amendment of Rules 2.512, 2.513, 2.514, 2.515, 2.516, and 6.414 of the Michigan Court Rules
The amendments in this order reflect the Court’s approval of many of the jury reform principles tested in the Court’s two-year jury reform pilot project that ended in December 2010. Under this order, jury practices for both civil and criminal proceedings are generally incorporated in a new MCR 2.513. The Court will review the efficacy of these amendments in 2014.
SBM Position: View Position
2004-08—Proposed Amendment of Rule 15 and Proposed New Rule 18 of the Rules Concerning the State Bar of Michigan
Admission to the Bar; Pro Hac Vice Temporary Practice
Position: Endorsed in concept
2004-08—Proposed Amendment of Rule 8.126 of the Michigan Court Rules
Michigan’s updated pro hac vice rule, MCR 8.126, has been in place since 2008, and several changes to the rule have been recommended. Those changes include a requirement that the fee be charged for each request for pro hac vice admission, that the court that grants the motion send a copy of the order to the AGC (instead of requiring that the Michigan attorney send the copy to the AGC), that the rule specifically include an attorney’s temporary admission for arbitration proceedings, and that the fee be required to be paid before an order enters.
SBM Position: Support
2002-24—Proposed Amendment of Rule 7.3 of the Michigan Rules of Professional Conduct
The proposed addition of subrule (c) of MRPC 7.3 would require a lawyer who seeks professional employment from a prospective client to designate the writing as an advertisement by prominently displaying the words “Advertising Materials” on the outside envelope (or brochure, pamphlet, or postcard) and at the beginning and end of every written, recorded, or electronic communication.
Committee on Professional Ethics: View Position
Amendments Effective May 1, 2011
Amendments Effective January 1, 2011
2010-09—Proposed Amendments of Rules 3.973, 3.97, and 3.976 of the Michigan Court Rules
This proposal was recommended by a committee of the Michigan Probate Judges Association in consultation with the Foster Care Review Board. It would require a court to maintain a local foster care review board report in the court’s confidential social file, and ensure that all parties have had the opportunity to review the report before the court enters a dispositional order, dispositional review order, or permanency planning order. Courts also could include recommendations from the report in their orders under the proposed language.
SBM Position: View Position PDF
2009-25—Proposed Amendment of Rule 8.120 of the Michigan Court Rules
Under this proposal, a law student or recent law graduate who is a member of a legal aid clinic would be eligible to appear on behalf of a client in the Court of Appeals. The appearance would require the same protections that now exist, i.e., supervision by a licensed attorney who signs all pleadings, and approval by a majority of the judges of the assigned panel.
SBM Position: View Position
2009-06—Proposed Amendment of Rules 1.5, 1.7, 1.8, 3.1, 3.3, 3.4, 3.5, 3.6, 5.4, 5.5, and 8.5 of the Michigan Rules of Professional Conduct, and the addition of Rules 2.4, 5.7, and 6.6
SBM Position: View Position
Committee on Professional Ethics Position: View Position
2008-39—Amendments of Rules 6.425 and 6.610 of the Michigan Court Rules
The amendments of Rules 6.425 and 6.610 of the Michigan Court Rules were submitted by the Representative Assembly of the State Bar of Michigan. The amendments increase the time within which a court is required to provide copies of the presentence report to the prosecutor, the defendant’s lawyer, or the defendant if not represented by a lawyer, to at least two business days before the day of sentencing. If the report is not made available at least two days before sentencing, the prosecutor or defendant’s lawyer, or the defendant, when not represented by a lawyer, is entitled to an adjournment to prepare any necessary corrections, additions, or deletions to present to the court. The revisions of these rules also prohibit the inclusion of specific information in the report about the victim or witness, and require that the court instruct those who review the report that they are precluded from making a copy of the report and must return their copy to the court before or at the defendant’s sentencing. The confidentiality provision is based on MCL 791.229.
Criminal Law Section Position: View Position
2008-38—Proposed Amendment of Rule 6.201 of the Michigan Court Rules
This proposal was submitted to the Michigan Supreme Court by the State Bar of Michigan Representative Assembly. It would require prosecutors to maintain electronic recording evidence made by governmental agencies until the time for all appeals has expired. Failure to preserve evidence would entitle the defendant to a jury instruction that jurors may presume any evidence not produced was adverse to the prosecution.
Amendments Effective September 21, 2010
Amendments Effective September 15, 2010
Amendments Effective September 1, 2010
Amendments Effective May 18, 2010
2009-26—Amendment of Rules 5.105, 5.125, 5.201, 5.501, 5.801, and 5.802 of the Michigan Court Rules and Proposed Adoption of New Rule 5.208 of the Michigan Court Rules (to replace Rules 5.306 and 5.503)
These changes, submitted by the Probate and Estate Planning Council of the State Bar of Michigan and the Michigan Probate Judges Association, have been designed so that the rules conform to recently-enacted statutory changes creating the Michigan Trust Code. The amendments correct and insert cross-references to the applicable statutory provisions, and make other technical changes. In addition, new MCR 5.208 incorporates the notice requirements for both decedent estates and trusts currently contained in MCR 5.306 and MCR 5.503, and replaces those rules.
Amendments Effective May 1, 2010
2009-14—Proposed Amendment of Rules 7.101 and 7.105 of the Michigan Court Rules
This amendment clarifies that briefs filed in cases that involve an appeal to a circuit court from a district court or an appeal of a decision by a state administrative agency, board, or commission may not exceed 50 pages in length, similar to the length restriction for briefs filed in the Court of Appeals.
2009-13—Amendment of Rules 2.112 and 2.118 of the Michigan Court Rules
This amendment clarifies that briefs filed in cases that involve an appeal to a circuit court from a district court or an appeal of a decision by a state administrative agency, board, or commission may not exceed 50 pages in length, similar to the length restriction in cases filed in the Court of Appeals.
SBM Position: View Position
2009-07—Proposed Amendments of Rules 7.105, 7.204, 7.205, and 7.302 of the MIchigan Court Rules
These proposed amendments would create a prison mailbox rule, which would allow a claim of appeal or application for leave to appeal to be deemed filed when a prison inmate acting pro se places the legal documents in the prison’s outgoing mail. The proposed rule would apply to appeals from administrative agencies, appeals from circuit court (both claims of appeal and applications for leave to appeal), and appeals from decisions of the Court of Appeals to the Supreme Court, and would apply prospectively.
2008-43—Amendments of Rules 3.800, 3.802, 3.901, 3.903, 3.920, 3.921, 3.931, 3.935, 3.961, 3.963, 3.965, 3.974, 3.975, 3.976, 3.977, 3.980, 5.125, 5.402, and 5.404 and Proposed New Rules 3.002, 3.807, 3.905, 3.967, and 5.109 of the Michigan Court Rules
MCR 3.002(1)(c) defines “preadoptive placement” to mean the “temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but before or in lieu of adoptive placement, and . . . .” The phrase “in lieu of adoptive placement” is not intended to mean that it is permissible to leave a child in foster care indefinitely, in violation of MCL 712A.19b(6) or (7) or 45 CFR 1355.20, 45 CFR 1356.21, or 45 CFR 1356.50. Rather, it addresses situations where the parental rights to a child have been terminated and there is no permanency plan for adoption of the child. One example is when the child has been placed with a juvenile guardian and the guardianship is subsequently revoked. In this situation, jurisdiction over the child pursuant to MCL 712A.2(b) will be reinstated and the child is placed in foster care.
MCR 3.002(1): The definition of “child custody proceeding” is intended to apply the Indian Child Welfare Act to delinquency proceedings if an “Indian child” is charged with a so-called status offense in violation of MCL 712A.2(a)(2)-(4) or (d). Delinquency proceedings involving an Indian child charged with any other non-status offense are generally not subject to the Indian Child Welfare Act; however, if the initial investigation or subsequent review of a non-status delinquency case reveals that the Indian child involved suffers from child abuse or neglect, a separate child protective proceeding may be initiated, which would be subject to the Indian Child Welfare Act.
The amendment of MCR 3.905(C)(1) states that a court shall consider guidelines established by the Bureau of Indian Affairs (BIA) in determining whether good cause not to transfer exists (Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg No 228, 67590-67592, C.2-C.4. [November 26, 1979]). Some examples of good cause are that the Indian tribe does not have a tribal court or that the Indian child is over 12 years old and objects to the transfer. For additional examples of good cause and relevant case law, see the BIA guidelines cited above and A Practical Guide to the Indian Child Welfare Act. (Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act [Boulder, CO: Native American Rights Fund, 2007], 7.15 and 7.16, p 60.)
American Indian Law Position: View Position
2005-42—Amendment of Rule 3.932 of the Michigan Court Rules
The amendment of MCR 3.932 requires a court to enter a plea for violations of the Michigan Vehicle Code, and requires a court to report to the Secretary of State violations of the Michigan Vehicle Code that are handled on the court’s consent calendar.
2005-13—Proposal to Establish and Require Compliance with Court Collections Program and Reporting Requirements
On order of the Court, this is to advise that the Court is considering adoption of an administrative order that would require the State Court Administrator to establish court collections program and reporting requirements and that would require courts to comply with those requirements
Position: View Position
Amendments Effective March 16, 2010
Amendments Effective January 1, 2010
Amendments Effective September 1, 2009
2008-41—Amendment of Rule 3.101 of the Michigan Court Rules
The amendments of MCR 3.101 add language to protect exempt funds from garnishment and require financial institutions to provide authority stating why certain funds are exempt.
2008-40—Amendments of Juvenile Court Standards and Administrative Guidelines for the Care of Children Administrative Order No. 1985-5
These amendments expand the eligible education categories prospective employees (including administrators, supervisory personnel, county juvenile officers, probation officers, caseworkers, and personnel of court-operated child care facilities) must meet to be considered for employment. In addition, the amendments allow the state court administrator to waive the employment standards if the court provides a reasonable period within which the candidate must meet the education standards, and establish minimum accreditation requirements.
2008-35—Amendment of Rule 8.115 of the Michigan Court Rules (Cell Phone Usage in Court Facilities)
This rule authorizes a court’s chief judge to establish a policy for the use of cell phones and other portable electronic devices in courtrooms, and requires that the policy be posted in a conspicuous location in each courtroom. The amendment also acknowledges that the policy for cell phone and electronic device usage in nonjudicial areas may be set by the operators of the facility in which courtrooms are located. No photographs may be taken of jurors and witnesses, and no photographs are allowed without the judge’s permission. Failure to comply with the judge’s policy may result in a fine (including confiscation of the device), incarceration, or both for contempt of court.
Civil Procedure & Courts Committee Position: View Position
2008-33—Amendment of Rule 2.516 of the Michigan Court Rules
This amendment requires judges to instruct jurors that they are prohibited from using computers or cell phones at trial or during deliberation, and are prohibited from using a computer or other electronic device or any other method to obtain or disclose information about the case when they are not in the courtroom. The instruction shall be given when the jury is empaneled.
The amendment prohibits jurors from reading about or listening to news reports about the case and prohibits discussion among jurors until deliberation. The prohibition on juror discussion does not apply to courts participating in the jury reform pilot project, which specifically allows jurors to discuss a case before the close of evidence.
2008-13—New Rule 1.15A of the Michigan Rules of Professional Conduct
SBM Position: View Position
2007-13—Amendment of Rule 611 of the Michigan Rules of Evidence
This amendment explicitly states that a judge shall establish reasonable standards regarding the appearance of parties and witnesses to evaluate the demeanor of those individuals and to ensure accurate identification.
Amendments Effective July 1, 2009
2008-29—Amendment of Rules 3.901, 3.903, 3.921, 3.965, 3.975, 3.976, 3.977, and 3.978,and New Rule 3.979 of the Michigan Court Rules
The amendments of Rules 3.901, 3.903, 3.921, 3.965, 3.975, 3.976, 3.977, and 3.978, and new rule 3.979 of the Michigan Court Rules reflect the enactment of 2008 PA 199-203.
Amendments Effective May 1, 2009
2008-24—Amendment of Rule 2.614 of the Michigan Court Rules
The amendments of MCR 2.614 conform to recent amendments of MCR 2.119, MCR 7.204, and MCR 7.205, adopted May 28, 2008, which clarified that a party seeking leave to appeal in the Court of Appeals has 21 days after the entry of an order deciding a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the order or judgment appealed to file a claim of appeal or an application for leave to appeal, if the motion is filed within the initial 21-day appeal period, or within further time the trial court has allowed for good cause during that 21-day period.
SBM Position: View Position
Appellate Practice Section: View Position
Civil Procedure & Courts Committee: View Position
2007-42—Proposed Amendments of Rules 7.302, 7.314, and 7.316 of the Michigan Court Rules
These proposals would give the Supreme Court the authority to correct a deficient brief or to strike a nonconforming brief, similar to the authority given the Court of Appeals in MCR 7.212(I). The proposals would also allow the Supreme Court to dismiss a case in which a party failed to pursue the case in conformity with the rules.
SBM Position: View Position
2007-41—Amendment of Rule 2.112 of the Michigan Court Rules
The amendment of MCR 2.112 clarifies that the subrule provisions apply to actions based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death to which MCL 600.2957 and MCL 600.6304 apply, and more closely parallels the statutory provisions on which it is based. A similar change has been made in MCR 2.403(O)(10), which was also based on MCL 600.6304.
SBM Position: View Position
2007-40—Amendment of Rule 7.205 of the Michigan Court Rules
The amendment of MCR 7.205(F)(5) allows a party to file a late application for leave to appeal after the 12-month limitation period in MCR 7.205(F)(3) if the party’s claim of appeal was dismissed for lack of jurisdiction within 21 days before the 12-month period expires or after it expires. A party must file its late application for leave to appeal within 21 days of dismissal of the claim of appeal or within 21 days of denial of a timely filed motion for reconsideration.
SBM Position: View Position
2007-31—Amendment of Rule 4.201 of the Michigan Court Rules
SBM Position: View Position
Civil Procedure & Courts Committee Position: View Position
2005-37—Amendment of Rules 5.105, 5.125, 5.206, 5.302, 5.306, 5.307, 5.309, and 5.403 and New Rule 5.411 of the Michigan Court Rules
These amendments were adopted primarily as a result of submissions by the Michigan Probate Judges Association and the State Bar of Michigan’s Probate and Estate Planning Section. This was a joint effort to increase the oversight of guardianship and conservatorship proceedings, as well as to improve other procedures in probate court.
Amendments Effective January 1, 2009
Amendments Effective October 14, 2008
Amendments Effective September 30, 2008
Amendments Effective September 1, 2008
Amendments Effective January 15, 2008
Amendments Effective January 1, 2008
Administrative Orders
Administrative Order No. 2006-6—File No. 2003-47
Position: No position. Authorization granted to the Civil Procedure and Courts Committee to advocate its position.
Administrative Order 2009-01—File No. 2002-37
SBM Position
Civil Procedure and Courts Committee Position
e-Filing Task Force Position
Justice Initiatives Committee Position
Third Amended Administrative Order No. 2007-2—File Nos. 2002-34, 2002-44
Filing Appeal of Right; Appearance; Record on Appeal; Briefs.
Position: Concerning the amendments relating to intake proceedings only, the Board of Commissioners voted to:
- Support generally the ongoing efforts of the Court of Appeals to reduce appellate delay.
- Support funding for appellate delay reduction initiatives to reduce the "warehouse."
- Oppose the published revisions to MCR 7.212 that eliminate stipulated extensions of time to file briefs and shorten the time for filing briefs and reply briefs.
- Recommend further study and urge attention to the recommendations of the Report of the State Bar of Michigan Task Force on Appellate Delay Reduction.
May 5, 2003, Comments
August 28, 2003, Comments; Tabs A-C
November 5, 2003, Comment
Proposed Rule Amendments
2010-36—Amendment of Rule 3.705 of the Michigan Court Rules
This amendment, submitted to the Court by the State Bar of Michigan Domestic Violence Committee, amends MCR 3.705 to allow sufficient time for a respondent to file a written motion and offer of proof at least 24 hours before a hearing as required by statute. MCL 600.2950a(4) requires that a respondent who wants to introduce evidence covered by the rape shield provision of MCL 750.520j submit a notice and offer of proof at least 24 hours before the hearing. Before adoption of this amendment, the rule’s one-day notice of hearing requirement would not have provided the respondent 24 hours within which to submit the offer of proof, so the SBM Domestic Violence Committee recommended that the rule be amended to change the time provision regarding notice of hearing for a sexual assault PPO to two days instead of one day.
2010-26—Proposed Amendment of Rule 7.210 and Rule 7.212 of the Michigan Court Rules
The proposed amendments of MCR 7.210 and MCR 7.212 would extend the time period in which parties may request that a court settle a record for which a transcript is not available and would clarify the procedure for doing so.
2010-25—Proposed Amendment of Rule 7.210 of the Michigan Court Rules
This amendment was proposed by James Neuhard, former director of the State Appellate Defender Office. The proposed amendment would require trial courts to become the depository for exhibits offered in evidence (whether those exhibits are admitted or not), instead of requiring parties to submit exhibits offered in evidence when a case is submitted to the Court of Appeals on a claim of appeal
2010-20—Proposed Amendment of Rule 6.302 of the Michigan Court Rules
This proposed amendment of MCR 6.302 would reinsert a requirement that a court advise a defendant who pleads guilty that the defendant’s maximum possible prison sentence may be longer than the maximum possible prison sentence for a particular offense if the defendant falls within the parameters of the habitual offender statute (MCL 769.13). The statute allows a prosecutor to notify the defendant that the prosecutor intends to seek an enhanced sentence after the defendant pleads guilty. Thus, the sentence range given by the court may not take into account any sentence enhancement at the plea hearing.
SBM Position: View Position
Criminal Law Section: View Position
2010-19—Proposed Amendment of Subchapter 7.100 of the Michigan Court Rules
This proposal was submitted to the Court in May 2010 by the Circuit Court Appellate Rules Revision Committee. The committee was comprised of appellate practice attorneys and judges (including circuit, district, and Court of Appeals judges). It is published for comment as submitted.
SBM Position: View Position
Appellate Practice Section: View Position
2010-16—Proposed Amendments of Rules 6.302 and 6.610 of the Michigan Court Rules
These proposals were generated following the recent United States Supreme Court decision in Padilla v. Kentucky, ___ US ___; 130 S Ct 1473; 176 L Ed 2d 284 (2010), in which the Court held that defense counsel is required to inform a defendant about the risk of deportation as a potential consequence of a guilty plea. In that case, the Court held that “when the deportation consequence is truly clear, as it was in this case,” counsel must give correct advice. The Court also noted that in “situations in which the deportation consequences of a particular plea are unclear or uncertain, … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 130 S Ct 1483.
Proposal A would require a judge to ask a noncitizen defendant and the defendant’s lawyer if they have discussed possible risk of deportation as a consequence of a guilty plea. The focus of this inquiry is whether the defendant is a noncitizen, and what the defense counsel has told the defendant. Proposal B would require a judge to give general advice to any defendant (whether or not the defendant is represented by counsel) that a guilty plea by a noncitizen may carry immigration consequences. This alternative would obviate the need to determine the defendant’s citizenship status, which the defendant may not know or be willing to divulge.
Criminal Jurisprudence & Practice Committee: View Position
Criminal Issues Initiative: View Position
2010-15—Proposed Amendment of Rule 6.005 of the Michigan Court Rules
This proposed amendment would clarify that trial counsel is required to make a defendant’s file available to an appellate lawyer, and would be required to retain the file for at least five years. This file was prompted by reports of appellate counsel having difficulty obtaining trial materials (especially video or audio materials that were not transcribed as part of the transcript). The five-year period mirrors the five-year retention period contained in MRPC 1.15(b)(2).
SBM Position: View Position
Criminal Law Section: View Position
2010-14—Proposed Adoption of New Rule 6.202 of the Michigan Court Rules
The intent of this proposed new rule is to create a “notice and demand” rule that would allow forensic reports to be admitted into evidence without the forensic analyst’s presence if the defendant does not object. The proposed rule is based on favorable discussion by the United States Supreme Court in Melendez-Diaz v Massachusetts, 557 US ___; 129 S Ct 2527 (2009). Although the Supreme Court struck down the Massachusetts procedure for admitting forensic evidence without attendance by the forensic analyst, it noted that some states have adopted “notice and demand” provisions that create a procedure by which forensic reports may be admitted into evidence if the defendant does not object to the report’s entry.
SBM Position: View Position
Criminal Law Section: View Position
2010-13—Proposed Amendment of Rule 6.001 of the Michigan Court Rules
The intent of this proposed amendment is to clarify that discovery, which is not allowed under subsection (B) in criminal cases cognizable in the district courts, may be allowed after indictment or information following the preliminary hearing.
SBM Position: View Position
Criminal Law Section: View Position
2010-12—Proposed Amendment of Rule 606 of the Michigan Rules of Evidence and Proposed Amendment of Rule 2.512 of the Michigan Court Rules
This proposal is intended to provide guidance (similar to FRE 606[b]) about the scope of inquiry that jurors may be subject to following a verdict and establish a procedure by which postverdict contact with jurors may be sought.
SBM Position: View Position
2008-36—Proposed Amendment of Rule 7.202 of the Michigan Court Rules and Proposed Adoption of Administrative Order No. 2011-XX
Alternative A, the proposed amendment of MCR 7.202 would establish that an order suppressing material and substantial evidence is considered a final order, and therefore subject to an appeal by right. By contrast, Alternative B, a proposed administrative order, would establish a right to a mandatory stay while a prosecutor pursues interlocutory appeal of a trial court’s decision to suppress a prosecutor’s evidence. These proposals were prompted by the Court’s decision in People v Richmond, 486 Mich 29 (2010), in which the Court held that a prosecutor’s decision to move to dismiss the prosecutor’s case makes the case moot on appeal.
SBM Position: View Position
Criminal Jurisprudence & Practice Committee: View Position
Criminal Law Section: View Position
2008-21—Proposed Amendment of Rule 3.932 of the Michigan Court Rules
Alternative A would eliminate the consent calendar provisions of MCR 3.932. Alternative B would require a prosecutor’s consent to the use of the consent calendar and would prohibit the court from placing a case for an assaultive crime as defined in the Juvenile Diversion Act on the consent calendar.
SBM Position: View Position
2007-38—Proposed Amendment of Rule 6.201 of the Michigan Court Rules
SBM Position: View Position
Criminal Jurisprudence & Practice Committee Position: View Position
2007-07—Proposed Amendment of Rule 2.112 of the Michigan Court Rules
2006-43—Proposed Amendment of Rule 2.112 of the Michigan Court Rules
This proposed amendment would clarify the rules regarding affidavits of merit as expressed in Kirkaldy v. Rim, 478 Mich 581 (2007). It would establish a presumption of validity for an affidavit of merit upon filing and would require that a party challenge the sufficiency of an affidavit of merit before it can be determined to be deficient. If a court finds the affidavit deficient, the action would be dismissed. The party would then have the period of time remaining in the statutory limitations period in which to file a complaint with a conforming affidavit of merit.
SBM Position: View Position
2006-16—Proposed Amendment of Rules 6.302 and 6.310 of the Michigan Court Rules
SBM Position: View Position
2006-06—Proposed Amendment of Rule 7.215 of the Michigan Court Rules
Resolution of Conflicts in Court of Appeals Decisions
Family Law Section Position: Support View Position
SBM Position
Civil Procedure & Courts Committee Position: View Position
2005-32—Proposed Amendments of Rules 2.101, 2.102, 2.113, 2.603, 3.101, and 8.119 of the Michigan Court Rules
This proposal, recommended by a workgroup authorized by the Supreme Court, would establish specific rules for court clerks to screen documents that are submitted to a court for filing and return those documents that do not conform to certain minimum filing requirements.
SBM Position: View Position
Civil Procedure & Courts Committee Position: View Position
Consumer Law Section: View Position
Justice Policy Initiatives Committee Position: View Position
2005-25—Proposed Amendment of Rule 2.203 of the Michigan Court Rules
Compulsory Joinder Provisions
2005-11—Proposed Amendments of Canon 4 and Canon 5 of the Michigan Code of Judicial Conduct
The proposal contained in this order seeks to clarify the role a judge may play in fundraising events for law-related and educational, religious, charitable, fraternal, or civic organizations. The proposal would specifically allow a judge to speak, appear, or be a guest or accept an award at a fundraising event of both law-related and educational, charitable, religious, and civic organizations, and must be shielded as much as possible from knowing who has contributed and the amount of contributions.
SBM Position: View Position
2004-55—Proposed Amendment of Rule 3.211 of the Michigan Court Rules
This proposed amendment would eliminate the requirement that the Supreme Court approve changes to the Uniform Support Order forms. Without explicit approval required by the Supreme Court, the forms would be updated like other forms that are revised on a regular basis within the State Court Administrative Office.
SBM Position: View Position
2003-62—Proposed Adoption of New Michigan Rules of Professional Conduct
Michigan Rules of Professional Conduct
SBM Position: View Position
Declined to Adopt and File Closed
2011-05—Proposed Amendments of Rules 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.9, 1.13, 1.14, 1.15, 1.16, 1.17, 3.2, 4.1, 4.3, 5.2, and 8.4 of the Michigan Rules of Professional Conduct
The proposed amendments of MRPC 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.9, 1.13, 1.14, 1.15, 1.16, 1.17, 3.2, 4.1, 4.3, 5.2, and 8.4 would incorporate language from the comments of these rules into the rule itself.
SBM Position: View Position
2010-07—Proposed Amendment of Rule 1.5 of the Michigan Rules of Professional Conduct
The proposed amendment of MRPC 1.5 generally would limit a referral fee to 25 percent of the amount recovered in a case subject to a contingent fee agreement. The maximum fee could be increased if the referring attorney provides substantial input that merits such increased percentage.
SBM Position: View Position
Civil Procedure & Courts Position: View Postion
2008-32—Proposed Amendment of Rule 2.203 of the Michigan Court Rules
This proposed amendment would clarify that summonses must be issued when a counterclaim or cross-claim is filed, and would establish an expiration date identical to the expiration date of summonses issued when a third party is added to an existing case.
SBM Position: Oppose
Litigation Section: Oppose
2008-18—Proposed Amendment of Rule 3.501 of the Michigan Court Rules
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.
SBM Position: View Position
2008-12 – Proposed Amendment of Rule 2.002 of the Michigan Court Rules
2008-10—Proposed Amendments of Rule 6.425 an Rule 7.210 of the Michigan Court Rules
This proposal would require a sentencing judge to prepare and include with the case record a form in which the judge outlines the reason or reasons for departure from the sentencing guidelines. The duty to do so would be in addition to the obligation to state such reasons on the record. The proposal is designed to provide litigants and appellate courts a clear and unambiguous recitation of the reasons for departure by the sentencing court.
SBM Position: Oppose
Appellate Practice Section: Oppose
Criminal Law Section Position: Oppose
2007-18—Proposed Amendment of Rule 2.117 of the Michigan Court Rules
The proposed amendment would revise MCR 2.117 to provide that an attorney-client relationship continues until a final judgment is reached and the period allowed to appeal by right has expired unless the attorney discontinued the relationship before that time. Also the proposal would clarify that follow-up or ministerial actions performed by the attorney following notice of termination do not extend the attorney-client relationship.
SBM Position: Oppose
Civil Procedure & Courts Committee Position: Oppose
Consumer Law Section: Oppose
Family Law Section Position: Oppose
Justice Policy Initiative: Oppose
2002-29—Proposed Michigan Standards for Imposing Lawyer Sanctions
Michigan Standards for Imposing Lawyer Sanctions
SBM Position: View Position 12/4/03; View Position 5/31/05
Other Actions
2009-11—Proposed Amendment of Rule 6.302 of the Michigan Court Rules
On order of the Court, the proposed amendment of Rule 6.302 of the Michigan Court Rules having been published for comment at 483 Mich 1252-1256 (Part 3, 2009), and an opportunity having been provided for comment in writing and at a public hearing on January 27, 2010, the Court declines to modify the court rule. This administrative file is closed without further action.
SBM Position: View Position
Criminal Law Section Position: View Position
2008-09—Proposed Amendment of Rules 3.210 and 3.211 of the Michigan Court Rules
On order of the Court, the proposed amendments of Rules 3.210 and 3.211 of the Michigan Court Rules having been published for comment at 483 Mich 1256-1260 (Part 3, 2009), and an opportunity having been provided for comment in writing and at a public hearing on January 27, 2010, the Court declines to modify the court rules. This administrative file is closed without further action.
SBM Position: View Position
The Court of Appeals ruling in Apsey v. Memorial Hospital has been appealed to the Michigan Supreme Court by the defendant. The State Bar of Michigan supports the filing of an amicus brief with the Michigan Supreme Court consistent with the amicus brief filed by the State Bar in the Court of Appeals.
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