Public Policy Update from the State Bar of Michigan
January 11-17, 2010
Volume 8 Issue 3

In the Capitol
Committee Meetings of Interest for the Week of 1/18
1/19 Senate Judiciary
Agenda: SB 616 Amend initiated law dispensing of medical marihuana by a licensed pharmacist to conform with public health code; SB 617 Enact sentencing guideline for violations to initiated Michigan medical marihuana act; SB 618 Provide for regulation of medical marihuana as a schedule 2 controlled substance to require dispensing by a pharmacist and require department to license medical marihuana growing facilities.

1/19 Senate Families and Human Services
Agenda Items of Interest: SB 568 Allow court to take court review of arbitrator's decision on custody as additional evidence; SB 569 Require courts to resolve child custody disputes that have been arbitrated in accordance with domestic relations arbitration provisions of the RJA.
Family Law Section Position on SB 0568 and SB 0569

1/20 House Appropriations: Human Services, Joint Meeting with Senate Appropriations: Department of Human Services
Agenda: Review of U.S. Department of Justice Special Report on Sexual Victimization in Juvenile Facilities.

1/20 House Tax Policy
Agenda Item of Interest: Presentation by Mitch Bean regarding the Revenue Estimating Conference.

1/20 House Appropriations
Agenda Item of Interest: Consensus Revenue Estimating Conference—Update by Mitch Bean, Director, House Fiscal Agency.

1/20 House Judiciary
HB 4314 Require appointment of attorney to represent a juvenile in certain proceedings; HB 5175 Clarify juvenile competency and culpability; HB 5482 Clarify restoration of juvenile to competency to proceed; HB 5483 Clarify restoration of juvenile to competency to proceed; HB 5484 Clarify certain statements made during juvenile competency evaluation; HB 5485 Clarify juvenile competency definitions; HB 5486 Require juvenile competency hearing; HB 5487 Clarify juvenile competency and evaluation; HB 5488 Require use of a qualified examiner for juvenile competency evaluation; HB 5489 Clarify juvenile competency evaluation and report; And any business before this committee.
State Bar Position on HB 4314: Support

Complete Committee Meeting List

New Public Acts

Legislation Introduced 1/13–1/14
Of Interest to the Legal Community
HB 5744 Torts; defenses; openness and obviousness of condition; establish as issue of comparative fault only. Amends sec. 2959 of 1961 PA 236 (MCL 600.2959).

HB 5745 Torts; medical malpractice; cap on damages; provide exception if defendant falsifies medical records. Amends sec. 1483 of 1961 PA 236 (MCL 600.1483).

SB 1056 Courts; district court; places where district court is required to sit; revise for districts of the second class and clarify authority of presiding judges in districts of the second class. Amends sec. 8251 of 1961 PA 236 (MCL 600.8251).

Of General Interest
HJR RR Legislature; legislators; vacancy in state senate or house of representatives; allow governor to appoint successor in certain circumstances. Amends sec. 13, art. V of the state constitution.

HJR SS Legislature; other; two-year fiscal period; require. Amends sec. 31, art. IV, secs. 11, 14, 24, 26, 27, 28, 35, 35a & 40, art. IX & sec. 5, art. XI of the state constitution.

HB 5736 Elections; registration; registering to vote on day of election and voting at that election; allow. Amends secs. 491, 497 & 497a of 1954 PA 116 (MCL 168.491 et seq.) & adds sec. 499e.

HB 5739 Children; child care; definition of child placing agency; expand to include certain unlicensed providers. Amends sec. 1 of 1973 PA 116 (MCL 722.111).

In the Hall of Justice
Child Pornography Charges Challenged in Cases Before Michigan Supreme Court in Oral Arguments Last Week

The Michigan Supreme Court will hold a public administrative hearing on Wednesday, January 27, 2010, in the Supreme Court courtroom located on the sixth floor of the Michigan Hall of Justice, 925 W. Ottawa Street, Lansing, Michigan 48915. The hearing will begin promptly at 9:30 a.m. and adjourn no later than 11:30 a.m. To reserve a place on the agenda, please notify the Office of the Clerk of the Court in writing at P.O. Box 30052, Lansing, Michigan 48909, or by e-mail at, no later than Monday, January 25, 2010.

Following the public administrative hearing, the Michigan Supreme Court will hold a public administrative conference.

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.
State Bar Position: Support

2008-09—Proposed Amendment of Rules 3.210 and 3.211 of the Michigan Court Rules
This proposal, submitted by the Michigan Judges Association, is intended to clarify and simplify the procedures courts use to grant judgments in domestic relations cases.
State Bar Position: Oppose
Family Law Section Position: Oppose

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.
State Bar Position: Oppose

2008-39—Proposed Amendments of Rules 6.425 and 6.610 of the Michigan Court Rules
The proposed 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 and would 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 two business days before the day of sentencing. If the report is not made available at least two days before sentencing, the defendant's lawyer, or the defendant, if not represented by a lawyer, would be entitled to adjournment to prepare necessary corrections, additions, or deletions to present to the court. The proposed revisions of these rules also would prohibit the inclusion of specific information in the report about the victim or witness.
Criminal Law Section Position: Support

2008-43—Proposed 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
These proposed amendments were recommended by the Indian Child Welfare Act subcommittee in an effort to incorporate the specific provisions of the Indian Child Welfare Act into the relevant rules that relate to adoption and guardianships. The proposal incorporates provisions of the Indian Child Welfare Act into specific provisions within various rules relating to child protective proceedings and juvenile status offenses. The proposal is designed to make the rules reflect a more integrated approach to addressing issues specific to Indian children.

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.

The proposed 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 Committee Position: Support

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.
Criminal Issues Initiative Position: Support

2009-11—Proposed Amendment of Rule 6.302 of the Michigan Court Rules
The proposed amendment of MCR 6.302 would require all discussions regarding a defendant's plea agreement to occur in open and on the record to reduce the possibility that a defendant would be coerced into agreeing to a particular sentence.
State Bar Position: Oppose
Criminal Law Section Position: Oppose

At the Bar
Nominations Due April 2 for Major State Bar Awards

Nominations Due Feb. 19 for State Bar Representative Assembly Awards

State News
Granholm OKs Clemency for 100 Inmates in 2 Years
(Detroit Free Press, 1/17/10)

Polls Say Michiganians Back Higher Taxes
(Detroit News, 1/15/10)

Michigan Legislature Election Adds Hurdle in Efforts to Fix Budget
(Lansing State Journal, 1/13/10)

Business Leaders Present State Turnaround Plan
(Detroit News, 1/13/10)

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