Public Policy Update from the State Bar of Michigan
November 14–20, 2011
Volume 9 Issue 47

In the Capitol
Session schedule: The Michigan House of Representatives and Senate will not hold session the week of November 21.
House Session Schedule
Senate Session Schedule

The Michigan Senate has announced its schedule for early 2012.
2012 Senate Session Schedule

Committee Meetings of Interest for the Week of 11/21
11/22 State Drug Treatment Court Advisory Committee

11/22 Senate Reforms, Restructuring, and Reinventing
Agenda item of interest: HB 5002 Modify definition of disability and conditions on compensation for covered injuries.
Workers' Compensation Section Position: Amend

Complete Committee Meeting List

New Public Acts

In the Hall of Justice
The Michigan Supreme Court will hold a public administrative hearing on Wednesday, November 30, 2011. The hearing will begin promptly at 9:30 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, MI 48909, or by e-mail at MSC_clerk@courts.mi.gov, no later than November 28, 2011.

Agenda:
2002-24 Amendment of Rule 7.3 of the Michigan Rules of Professional Conduct
MRPC 7.3 has been reformatted and describes the general prohibition regarding a lawyer's solicitation, and also describes the types of communication that are allowed, including a lawyer's general advertising, and a lawyer's targeted communications to possible clients who are facing legal problems (as protected by Shapero v Kentucky Bar Ass'n, 486 US 466 [1988]). The amendment of MRPC 7.3 requires that inclusion of the term "Advertising Material" applies only to written materials, including e-mailed communications, but not to television or radio advertisements. The amendment also requires a 30-day period to pass before an attorney may contact a potential client after a death, injury, or accident.
SBM Position: Oppose
Probate & Estate Planning Section: Oppose

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: Oppose
Criminal Jurisprudence & Practice Committee: Oppose

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: Support

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: Support and Amend

2010-14 Proposed Adoption of New Rule 6.202 of the Michigan Court Rules (and Draft Certificate Published in Conjunction with this Order)
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

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: Support and Concur with Ms. Victoria Katz
Appellate Practice Section: Support and Amend

Other Actions
2011-01 Appointment of Chief Judge of the 15th District Court
Issued: November 16, 2011
Effective: Immediately

2011-01 Appointment of Chief Judges
Issued: November 17, 2011

At the Bar
FOCUS: The Board of Commissioners met on November 18, 2011 at which time the State Bar of Michigan adopted the following Public Policy positions:

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: Support

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: Support

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: Oppose

HB 4844 Civil procedure; personal protection orders; statewide personal protection order registry; create, and provide for law enforcement information network (LEIN) access. Amends secs. 2950 & 2950a of 1961 PA 236 (MCL 600.2950 & 600.2950a) & adds sec. 2950n.
SBM Position: Oppose

HB 4998 Civil procedure; evictions; court procedures; make miscellaneous revisions. Amends secs. 5732 & 5739 of 1961 PA 236 (MCL 600.5732 & 600.5739) & adds sec. 5736.
SBM Position: Oppose

HB 5052 Civil procedure; evictions; persons entitled to appear in eviction proceedings; allow certain individuals to appear for landlord. Amends 1961 PA 236 (MCL 600.101–600.9947) by adding sec. 916a.
SBM Position: Oppose

2010 Economics of Law Practice Desktop Reference

SBM Animal Law Section Members Receive National Albert Schweitzer Award

Judicial Vacancy—15th District Court, Washtenaw County
Hon. Julie Creal has vacated her seat at 15th District Court, Washtenaw County. State Bar members interested in applying for the judgeship should submit an application by December 9, 2011.
View Information

Federal News
When DNA Evidence Suggests 'Innocent,' Some Prosecutors Cling to 'Maybe'
(New York Times, 11/15/11)

Supreme Court Will Hear Obama Health Care Overhaul
(Detroit Free Press, 11/14/11)

State News
Gov. Rick Snyder Wins Major Tax Ruling at Michigan Supreme Court
(Mlive.com, 11/18/11)

No Such Thing as Free Lunch? There is For State Lawmakers in Lansing
(Detroit Free Press, 11/16/11)

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