Public Policy Update from the State Bar of Michigan
January 10–16, 2011
Volume 9 Issue 3

Mark Your Calendar! Governor Snyder’s First State of the State Address
Governor Rick Snyder will give his first State of the State Address this Wednesday, January 19, at 7 p.m. before both the Michigan House of Representatives and the Senate.

FOCUS: Estimates from the Consensus Revenue Estimating Conference
On January 14, a Consensus Revenue Estimating Conference was held to determine projections for the current budget and for the next fiscal year. The projected FY 2011-2012 budget deficit is between $1.84 billion and $1.92 billion for the fiscal year starting October 1, 2011.
See Fiscal Reports:
Department of Treasury
House Fiscal Agency
Senate Fiscal Agency
See Related:
Balancing Budget Will be Problem into 2012
(Lansing State Journal, 1/15/11)
Michigan Recovery Battles with $1.8B Deficit
(Detroit News, 1/15/11)

In the Hall of Justice
Justice Maura Corrigan Ends Supreme Court Tenure; Praised by Chief Justice Young for "Lasting Achievements"

Did Rap Tour Promoters Violate State Eavesdropping Law? Issue Before Michigan Supreme Court in Oral Arguments This Week

Matthew Schneider Named Michigan Supreme Court Counsel; Will Also Serve as High Court's Chief of Staff

The Michigan Supreme Court will hold a public administrative hearing on Wednesday, January 26, 2011, in the Supreme Court courtroom located on the sixth floor of the Michigan Hall of Justice, 925 W. Ottawa Street, Lansing, MI 48915. The hearing will begin promptly at 9:30 a.m. and adjourn no later than 11:30 a.m. Persons who wish to address the Court regarding matters on the agenda should notify the Office of the Clerk of the Court in writing at P.O. Box 30052, Lansing, MI 48909, or by e-mail at MSC_clerk@courts.mi.gov, no later than Monday, January 24, 2011.

The State Bar of Michigan, State Bar sections, and committees took positions on the following matters to be discussed:
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.
Negligence Law Section Position: Oppose
State Bar Committee on Professional Ethics Position: Oppose

2008-12 Proposed Amendment of MCR 2.002 to Allow a Court to Deny Indigency Status for Vexatious Filers
This proposed amendment would update MCR 2.002 to clarify that if a party files a frivolous or malicious action, a court may deny the indigent party's ability to proceed in forma pauperis. The rule is similar to the Rules of the Supreme Court of the United States, Rule 39.8.
SBM Position: Oppose

2009-22—Proposed Amendments of Rules 7.212 and 7.215 of the Michigan Court Rules
These proposed amendments of MCR 7.212 and MCR 7.215, submitted by the State Bar of Michigan Appellate Practice Section, would eliminate the requirement to provide a copy of an unpublished Court of Appeals decision if that decision was issued after July 1, 1996, and a case number is provided.
SBM Position: Support

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.
State Bar Criminal Jurisprudence & Practice Committee Position: Support Alternative B
State Bar Criminal Issues Initiative Position: Support Alternative B

2010-18 Proposed Amendment of Rule 6.1 of the Michigan Rules of Professional Conduct
Alternative A is the current version of MRPC 6.1 with the addition of proposed language that would clarify that lawyers would not be subject to disciplinary action or any other process to enforce their responsibility to provide pro bono services. Alternative B, modified slightly by the Court for publication, was submitted by the State Bar of Michigan's Representative Assembly, and is based largely on the American Bar Association's Model Rule of Professional Conduct 6.1. The proposed amendments would clarify that each lawyer has a responsibility to provide pro bono legal services, and would establish in the Michigan Rules of Professional Conduct an aspirational goal for a lawyer to donate 30 hours or handle 3 cases per year, and/or make a financial donation of $300 or $500 per year. The requirements are similar to the existing standard adopted by the SBM's representative assembly in 1990, which recommends Michigan lawyers provide civil legal services to three clients, provide 30 hours of service, or contribute $300 to programs providing civil legal services to the poor. The proposal would create a professional responsibility for lawyers that would require them to provide legal services to those of limited means, but would state in the rule that the responsibility to do so is voluntary and not intended to be enforced through a disciplinary process or by any other means.
SBM Position: Support Alternative B

2010-21—Proposed Amendment of Rule 8.110 of the Michigan Court Rules
This proposal would exclude cases that are stayed during an interlocutory appeal from being included in the group of cases that a chief judge must report to the State Court Administrator that are delayed beyond the time guidelines.
Appellate Practice Section: Support and Amend
SBM Position: Support

In the Capitol
1/19 House Appropriations
Agenda: Organizational Meeting; Presentation by Mitch Bean, Director, House Fiscal Agency.

1/20 House Judiciary
Agenda: Organization of Committee; Presentation on Sentencing Guidelines.

Complete Committee Meeting List

New Public Acts

Legislation Introduced 1/13
Of Interest to the Legal Community

HB 4038 State financing and management; other; implementation of section 29 of article IX of the state constitution; provide for, and repeal 1979 PA 101. Creates new act & repeals 1979 PA 101 (MCL 21.23121.244).

HB 4041 Civil procedure; other; procedures for actions under sections 25 to 32 of article IX of the state constitution; revise. Amends sec. 308a of 1961 PA 236 (MCL 600.308a) & adds secs. 308b, 308c, 308d, 308e, 308f & 308g.

HB 4066 Campaign finance; contributions and expenditures; expenditures by candidate committees to defend certain officials in criminal actions; prohibit. Amends sec. 21a of 1976 PA 388 (MCL 169.221a).

HB 4074 Corrections; prisoners; certain prisoner reentry programs, including issuance of identification card and copies of other identifying documents; require, and require prisoners to obtain certain records. Amends secs. 35, 37 & 67 of 1953 PA 232 (MCL 791.235 et seq.) & adds sec. 34b.

HB 4075 State; identification cards; forms of identification necessary to apply for a state identification card; include corrections identification card and allow access to certain department of corrections data. Amends sec. 1 of 1972 PA 222 (MCL 28.291).

HB 4076 Traffic control; driver license; forms of identification necessary to apply for driver license; include corrections identification card. Amends sec. 307 of 1949 PA 300 (MCL 257.307).

HB 4077 Criminal procedure; sentencing; certain records necessary to obtain identification documents; assist convicted persons in obtaining. Amends sec. 14, ch. XI of 1927 PA 175 (MCL 771.14).

Of General Interest
HJR E Legislature; other; budget process; provide for presentation of two fiscal period budgets, modify fiscal year date, revise amount appropriated in a fiscal year, and establish certain policies for revenue estimating conferences. Amends sec. 31, art. IV & sec. 18, art. V of the state constitution.

HB 4001 Michigan business tax; surcharge; surcharge tax; repeal. Repeals sec. 281 of 2007 PA 36 (MCL 208.1281).

HB 4039 Administrative procedure; rules; delegation of legislative authority that violates constitutional prohibition against unfunded mandates; nullify under certain circumstances. Amends secs. 3, 5, 7a, 40, 44, 45 & 45a of 1969 PA 306 (MCL 24.203 et seq.) & adds sec. 9.

HB 4040 Legislature; committees; local government mandate panel; create and prescribe its duties. Amends 1986 PA 268 (MCL 4.11014.1901) by adding ch. 7C.

HB 4046 Michigan business tax; surcharge; phaseout; provide for. Amends sec. 281 of 2007 PA 36 (MCL 208.1281).

HB 4047 Michigan business tax; repeal; Michigan business tax; repeal. Repeals 2007 PA 36 (MCL 208.1101208.1601).

At the Bar
The State Bar of Michigan's Public Policy, Image, and Identity Committee and the Board of Commissioners will meet on January 21, 2011. For more information, please contact pcunningham@mail.michbar.org.

State News
Michigan's Budget Director: State's Woes Tough But Manageable
(Lansing State Journal, 1/18/11)

GOP Warns: Painful Cuts Coming to Fix State Deficit
(Lansing State Journal, 1/13/11)

The New Legislature is Now in Session
(Detroit Free Press, 1/13/11)
See Related:
Republicans Take Over Lansing
(Detroit News, 1/13/11)
House Dems to Focus on Creating Jobs
(Detroit News, 1/13/11)
Members of Michigan's House, Senate Prepare for Oath
(Detroit News, 1/12/11)

Snyder Names Zahra to State Supreme Court
(Lansing State Journal, 1/11/11)

Links of Interest
Public Policy Resource Center | Michigan Supreme Court | Michigan Legislature | MCL Search Engines