ADM File No. 2021-41 Amendments of Rules 6.001, 6.003, 6.102, 6.103, 6.106, 6.445, 6.615, and 6.933 and Addition of Rules 6.105, 6.441, and 6.450 of the Michigan Court Rules

To read ADM File No. 2021-41, dated May 18, 2022, visit http://courts.michigan.gov/courts/michigansupremecourt and click “Administrative Matters & Court Rules” and “Proposed & Recently Adopted Orders on Admin Matters.”

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ADM File No. 2002-37 ADM File No. 2017-28 Amendments of Rules 1.109 and 8.119 of the Michigan Court Rules

On order of the Court, this is to advise that the amendments of Rules 1.109 and 8.119 of the Michigan Court Rules are adopted, effective immediately. Concurrently, individuals are invited to comment on the form or the merits of the amendments during the usual comment period. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for each public hearing are posted on the Public Administrative Hearings page.

[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]

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Rule 1.109 Court Records Defined; Document Defined; Filing Standards; Signatures; Electronic Filing and Service; Access

(A)-(C) [Unchanged.]

(D) Filing Standards.

(1)-(8) [Unchanged.]

(9) Personal Identifying Information.

(a) [Unchanged.]

(b) Filing, Accessing, and Serving Personal Identifying Information

(i)-(ii) [Unchanged.]

(iii) Except as otherwise provided by these rules, iIf a party is required to include protected personal identifying information in a public document filed with the court, the party shall file the document with the protected personal identifying information redacted, along with a personal identifying information form approved by the State Court Administrative Office under subrule (i). The personal identifying information form must identify each item of redacted information and specify an appropriate reference that uniquely corresponds to each item of redacted information listed. All references in the case to the redacted identifiers listed in the personal identifying information form will be understood to refer to the corresponding complete identifier. A party may amend the personal identifying information form as of right. Fields for protected personal identifying information may be included in SCAO-approved court forms, and the information will be protected, in the form and manner established by the State Court Administrative Office.

Unredacted protected personal identifying information may be included on Uniform Law Citations filed with the court and on proposed orders presented to the court.

(iv)-(vii) [Unchanged.]

(c)-(e) [Unchanged.]

(10) [Unchanged.]

(E)-(H) [Unchanged.]

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Rule 8.119 Court Records and Reports; Duties of Clerks

(A)-(G) [Unchanged.]

(H) Access to Records. Except as otherwise provided in subrule (F), only case records as defined in subrule (D) are public records, subject to access in accordance with these rules.

(1) The clerk shall not permit any case record to be taken from the court without the order of the court.

(2) A court may provide access to the public case history information through a publicly accessible website, and business court opinions may be made available as part of an indexed list as required under MCL 600.8039. (3) Public access to all electronic documents imported from an electronic document management system maintained by a court or its funding unit to the state-owned electronic document management system maintained by the State Court Administrative Office will be automatically restricted until protected personal identifying information is redacted from all documents with a filed date or issued date that precedes April 1, 2022.

(4) If a request is made for a public record that is maintained electronically, the court is required to provide a means for access to that record. However, the recordsdocuments cannot be provided through a publicly accessible website if protected personal identifying information has not been redacted from those recordsdocuments.

(5) If a public document prepared or issued by the court, on or after April 1, 2022, or a Uniform Law Citation filed with the court on or after April 1, 2022, contains protected personal identifying information, the information must be redacted before it can be provided to the public, whether the document is provided upon request via a paper or electronic copy, or direct access via a publicly accessible computer at the courthouse. Upon receipt by the court on or after April 1, 2022, protected personal identifying information included in a proposed order shall be protected by the court as required under MCR 8.119(H) as if the document was prepared or issued by the court.

(6) The court may provide access to any case record that is not available in paper or digital image, as defined by MCR 1.109(B), if it can reasonably accommodate the request. Any materials filed with the court pursuant to MCR 1.109(D), in a medium for which the court does not have the means to readily access and reproduce those materials, may be made available for public inspection using court equipment only. The court is not required to provide the means to access or reproduce the contents of those materials if the means is not already available.

(1)-(2) [Renumbered (7)-(8) but otherwise unchanged.]

(I)-(L) [Unchanged.]

Staff Comment: The amendments of MCR 1.109 and MCR 8.119 aid in protecting personal identifying information included in Uniform Law Citations, proposed orders, and public documents filed with or submitted to the court.

The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this 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 the proposal may be submitted by September 1, 2022, by clicking on the “Comment on this Proposal” link under this proposal on the Court’s Proposed & Adopted Orders on Administrative Matters page. You may also submit a comment in writing at P.O. Box 30052, Lansing, MI 48909 or via email at ADMcomment@courts.mi.gov. When filing a comment, please refer to ADM File No. 2002-37/2017-28. Your comments and the comments of others will be posted under the chapter affected by this proposal.

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ADM File No. 2021-31 Amendment of Rule 8.110 of the Michigan Court Rules

On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendments of Rule 8.110 of the Michigan Court Rules is adopted, effective immediately.

[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]

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Rule 8.110 Chief Judge Rule

(A)-(C) [Unchanged.]

(D) Court Hours; Court Holidays; Judicial Absences.

(1) [Unchanged.]

(2) Court Holidays; Local Modification.

(a) The following holidays are to be observed by all state courts, except those courts which have adopted modifying administrative orders pursuant to MCR 8.112(B):

New Year’s Day, January 1;
Martin Luther King, Jr., Day, the third Monday in January in conjunction with the federal holiday;
Presidents’ Day, the third Monday in February;
Memorial Day, the last Monday in May;
Juneteenth, June 19;
Independence Day, July 4;
Labor Day, the first Monday in September;
Veterans’ Day, November 11;
Thanksgiving Day, the fourth Thursday in November;
Friday after Thanksgiving;
Christmas Eve, December 24;
Christmas Day, December 25;
New Year’s Eve, December 31;

(b) When New Year’s Day, Juneteenth, Independence Day, Veterans’ Day, or Christmas Day falls on Saturday, the preceding Friday shall be a holiday. When New Year’s Day, Juneteenth, Independence Day, Veterans’ Day, or Christmas Day falls on Sunday, the following Monday shall be a holiday. When Christmas Eve or New Year’s Eve falls on Friday, the preceding Thursday shall be a holiday. When Christmas Eve or New Year’s Eve falls on Saturday or Sunday, the preceding Friday shall be a holiday.

(c)-(e) [Unchanged.]

(3)-(6) [Unchanged.]

Staff Comment: In light of the federal act making Juneteenth a federal holiday (PL 117-17), this amendment similarly requires that courts observe Juneteenth as a holiday.

The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.

Zahra, J. (dissenting). The Michigan court system currently observes 12 paid holidays. This is far more than observed by the private sector. I believe as servants of the people we owe it to them to work diligently and regularly to provide good public service. Accordingly, I would not add an additional day off at the taxpayers’ expense. Juneteenth has been a ceremonial holiday in Michigan to be celebrated on the third Saturday of June each year. I would continue to follow this observance. But since it is the will of the Court to make it a paid holiday, I would cease to recognize one of the other holidays typically not observed by the private sector, such as the Friday after Thanksgiving. For these reasons, I dissent.

Viviano, J. (dissenting). I dissent from the Court’s decision to adopt a proposed amendment adding Juneteenth to the long list of weekday holidays that generally must be observed by all state courts under MCR 8.110. As I indicated in my previous statement when this amendment was proposed for comment, Juneteenth commemorates a historically significant date that, pursuant to statute, our state recognizes and celebrates by encouraging individuals and organizations to pause and reflect. MCL 435.361(1); Proposed Amendment of MCR 8.110, 508 Mich 1206, 1208 (2021) (Viviano, J., dissenting). The Legislature gave this matter thoughtful consideration less than two decades ago, passing the Juneteenth National Freedom Day legislation unanimously and with broad bipartisan support. I would defer to its judgment rather than trying to upstage the Legislature by creating a new holiday of our own.

The Court’s decision to add another holiday comes at a particularly bad time for our courts. As I noted last fall, “[m]any of our trial courts — including some of our largest courts — are confronting a significant backlog of criminal and civil cases resulting from their inability to conduct in-person court proceedings for long stretches of time during the COVID-19 pandemic.” Administrative Order No. 2021-7, 508 Mich xli, lvi (2021) (Viviano, J., concurring in part and dissenting in part). The backlog will only be exacerbated by today’s rule change. And, as if to emphasize that trial court operations are not our primary concern, the Court has decided to give the current amendment immediate effect, meaning it will take effect this June rather than next. The lower courts have undoubtedly already scheduled proceedings for June 20, 2022. See, e.g., MCR 2.501 (requiring 28 days’ notice for trial assignments). Any court that wishes to proceed with an already scheduled trial or other judicial matters on this new holiday as permitted under MCR 8.110(D)(2)(d) will need to show that holding the proceeding on that day is “necessary” and obtain the chief judge’s approval. Thus, the Court has increased the burden on trial courts at a time when many are already having difficulty catching up on jury trials and disposing of cases.

Our courts handle matters that intimately affect the lives of Michigan’s residents. It is therefore imperative that the courts expeditiously process and resolve the cases before them. The rule adopted today adds further delay to an already backlogged system. Because the Court is not acting as a responsible steward of our court system, I respectfully dissent.

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ADM File No. 2021-47 Retention of the Amendment of Rule 3.950 of the Michigan Court Rules

On order of the Court, notice and an opportunity for comment having been provided, the December 29, 2021, amendment of Rule 3.950 of the Michigan Court Rules is retained.

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ADM File No. 2021-45 Retention of the Amendment of Rule 7.306 of the Michigan Court Rules and Rescission of Administrative Order No. 2021-5

On order of the Court, notice and an opportunity for comment at a public hearing having been provided, the October 27, 2021, amendment of Rule 7.306 of the Michigan Court Rules is retained and, effective immediately, is amended further as indicated below. Administrative Order No. 2021-5 is rescinded, effective immediately.

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Rule 7.306 Original Proceedings

(A)-(C) [Unchanged.]

(D) Answer.

(1) A defendant in an action filed under Const 1963, art 4, § 6(19) must file the following with the clerk within 7 days after service of the complaint and supporting brief, unless the Court directs otherwise:

(a)-(c) [Unchanged.]

(2) In all other original actions, the defendant must file the following with the clerk within 28 days after service of the complaint and supporting brief, unless the Court directs otherwise:

(a)-(b) [Unchanged.]

(E)-(I) [Unchanged.]

(J) Decision. The Court may set the case for argument as a calendar caseas on leave granted, grant or deny the relief requested, or provide other relief that it deems appropriate, including an order to show cause why the relief sought in the complaint should not be granted.

Staff Comment: The additional amendment of MCR 7.306 refines the previous amendment by clarifying the timeframe for filing a supporting brief and makes subsection (J) consistent with MCR 7.313(A).

The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this Court.

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ADM File No. 2021-38 Amendment of Administrative Order No. 2022-1 Commission on Diversity, Equity, and Inclusion in the Michigan Judiciary

On order of the Court, the following amendment of Administrative Order No. 2022-1 is adopted, effective immediately.

[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]

Administrative Order No. 2022-1 — Commission on Diversity, Equity, and Inclusion in the Michigan Judiciary

In January 2021, the Michigan Supreme Court and the State Court Administrative Office created a Diversity, Equity, and Inclusion Committee with the initial goal of exploring issues related to the demographics of the workforce that support our judiciary and training within the judicial branches. The committee’s work grew to include exploration of other topics that impact our communities. On October 1, 2021, the committee presented a report to the Supreme Court that included a recommendation that the Court create an ongoing interdisciplinary commission to continue and build on the work that has been done to date. Therefore, on order of the Court, the Commission on Diversity, Equity, and Inclusion in the Michigan Judiciary is created, effective immediately.

I.-III. [Unchanged.]

IV. Commission Membership

A. Membership shall be comprised of 2524 members from the following groups:

1.-4. [Unchanged.]

5. One member each, recommended by the following:

a.-g. [Unchanged.]

h. The Michigan Tribal State Federal Judicial Forum.

6. [Unchanged.]

B.-D. [Unchanged.]

V.-VIII. [Unchanged.]

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ADM File No. 2022-01 Appointment to the Judicial Education Board

On order of the Court, pursuant to Administrative Order No. 2021-7 and effective immediately, Hon. Donna Robinson Milhouse (District Court Representative) is appointed to the Judicial Education Board to fill the remainder of a term ending December 31, 2025.

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ADM File No. 2022-06 Proposed Amendment of Rule 3.101 of the Michigan Court Rules

On order of the Court, this is to advise that the Court is considering an amendment of Rule 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 interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will also be considered at a public hearing. The notices and agendas for each public hearing are posted on the Public Administrative Hearings page.

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.

Comment

[Paragraphs 1-21 unchanged.]

Paragraph (e) is not meant to infringe upon any authorized practice in the federal courts. See, e.g., In re Desilets, 291 F3d 925 (CA 6, 2002). In addition, paragraph (e) does not authorize lawyers who are admitted to practice in other jurisdictions to maintain local contact information (i.e., contact information within the State of Michigan) on websites, letterhead, business cards, advertising, or the like.

Staff Comment: The proposed amendment of Rule 5.5 of the Michigan Rules of Professional Conduct and its accompanying comment would clarify that lawyers may practice remotely in another jurisdiction while physically present in Michigan.

The staff comment is not an authoritative construction by the Court. In addition, adoption of a new rule or amendment in no way reflects a substantive determination by this 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 the proposal may be submitted by September 1, 2022, by clicking on the “Comment on this Proposal” link under this proposal on the Court’s Proposed & Adopted Orders on Administrative Matters page. You may also submit a comment in writing at P.O. Box 30052, Lansing, MI 48909 or via email at ADMcomment@courts.mi.gov. When filing a comment, please refer to ADM File No. 2021-24. Your comments and the comments of others will be posted under the chapter affected by this proposal.

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ADM File No. 2021-20 Proposed Amendment of Rule 6.001 and Proposed Addition of Rule 6.009 of the Michigan Court Rules

On order of the Court, this is to advise that the Court is considering an amendment of Rule 6.001 and an addition of Rule 6.009 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for each public hearing are posted on the Public Administrative Hearings page.

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.

[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]

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Rule 6.001 Scope; Applicability of Civil Rules; Superseded Rules and Statutes

(A) [Unchanged.]

(B) Misdemeanor Cases. MCR 6.001-6.004, 6.005(B) and (C), 6.006, 6.009, 6.101, 6.102(D) and (F), 6.103, 6.104(A), 6.106, 6.125, 6.202, 6.425(D)(3), 6.427, 6.430, 6.435, 6.440, 6.445(A)-(G), and the rules in subchapter 6.600 govern matters in criminal cases cognizable in the district courts.

(C) Juvenile Cases. MCR 6.009 and tThe rules in subchapter 6.900 govern matters of procedure in the district courts and in circuit courts and courts of equivalent criminal jurisdiction in cases involving juveniles against whom the prosecutor has authorized the filing of a criminal complaint as provided in MCL 764.1f.

(D)-(E) [Unchanged.]

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[NEW] Rule 6.009 Use of Restraints on a Defendant

(A) Instruments of restraint, such as handcuffs, chains, irons, or straitjackets, cloth and leather restraints, and other similar items, may not be used on a defendant during a court proceeding that is or could have been before a jury unless the court finds that the use of restraints is necessary due to one of the following factors:

(1) Instruments of restraint are necessary to prevent physical harm to the defendant or another person.

(2) The defendant has a history of disruptive courtroom behavior that has placed others in potentially harmful situations or presents a substantial risk of inflicting physical harm on himself or herself or others as evidenced by recent behavior.

(3) There is a founded belief that the defendant presents a substantial risk of flight from the courtroom.

(B) The court’s determination that restraints are necessary must be made outside the presence of the jury. If restraints are ordered, the court shall state on the record or in writing its findings of fact in support of the order.

(C) Any restraints used on a defendant in the courtroom shall allow the defendant limited movement of the hands to read and handle documents and writings necessary to the hearing. Under no circumstances should a defendant be restrained using fixed restraints to a wall, floor, or furniture.

Staff Comment: The proposed addition of MCR 6.009 would establish a procedure regarding the use of restraints on a criminal defendant in court proceedings that are or could be before a jury, and the proposed amendment of MCR 6.001 would make the new rule applicable to felony, misdemeanor, and automatic waiver cases.

The staff comment is not an authoritative construction by the Court. In addition, adoption of an amendment in no way reflects a substantive determination by this 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 the proposal may be submitted by October 1, 2022, by clicking on the “Comment on this Proposal” link under this proposal on the Court’s Proposed & Adopted Orders on Administrative Matters page. You may also submit a comment in writing at P.O. Box 30052, Lansing, MI 48909 or via email at ADMcomment@courts.mi.gov. When filing a comment, please refer to ADM File No. 2021-20. Your comments and the comments of others will be posted under the chapter affected by this proposal.

Cavanagh, J. (concurring). I concur with this Court’s order publishing for comment the proposed addition of MCR 6.009 regarding the use of restraints on adult criminal defendants. As an initial matter, I’m not sure the constitutional floor set by Deck v Missouri, 544 US 622, 629 (2005), is as low as Justice Zahra claims. Deck reviewed American decisions dating back to 1871 and concluded that, while there was disagreement about the degree of discretion that trial judges possess, those cases “settled virtually without exception on a basic rule embodying notions of fundamental fairness: Trial courts may not shackle defendants routinely, but only if there is a particular reason to do so.” Deck, 544 US at 627. Courts sometimes analyze whether violations of Deck are harmless by inquiring whether jurors saw a defendant’s shackles. See Brown v Davenport, 596 US ; 142 S Ct 1510 (2022). But that speaks to at most one of the three “fundamental legal principles” supporting the prohibition on routine shackling: the presumption of innocence, the right to counsel, and “a judicial process that is a dignified process.” Deck, 544 US at 630-631. Even if the inquiry into whether the shackles were visible to jurors effectively analyzes the question of prejudice from unconstitutional shackling, we should strive to avoid the error in the first place, rather than knowingly commit the error while rendering it unreviewable. But, regardless of where the constitutional floor lies, we are not prohibited from considering more than the constitutional minimum, and at this point we are only publishing the proposed rule for comment. Because I would not deprive the public of the opportunity to comment on this proposal, I concur in the order publishing for comment.

Zahra, J. (dissenting). I dissent from this Court’s order publishing for comment the proposed addition of MCR 6.009 regarding the use of restraints on adult criminal defendants. I would only publish for comment a rule that conforms to the constitutional requirements set by the Supreme Court of the United States’ decision in Deck v Missouri, 544 US 622, 629 (2005) (“[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.”) (emphasis added). See also People v Arthur, 495 Mich 861, 862 (2013) (concluding that, under Deck, no constitutional violation occurred where “the court sought to shield the defendant’s leg restraints from the jury’s view” and “the record on remand ma[de] clear that no juror actually saw the defendant in shackles”). Contrary to Justice Cavanagh’s suggestion, the holding of Deck only applies when the jury sees and is made aware of the restraints; otherwise, the “‘inherent[] prejudic[e]’” the Court described in Deck would not exist. Deck, 544 US at 635 (citation omitted); see also id. at 633 (“The appearance of the offender...in shackles...almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community[.]”); id. at 635 (“[W]here a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation.”). Indeed, the published rule would extend Deck even to bench trials held before the very judge who would have earlier made the decision on whether to shackle the defendant. Because this Court’s order, as written, goes well beyond the constitutional floor set by Deck, I dissent.

Viviano, J., joins the statement of Zahra, J.