ADM File No. 2022-32 Proposed Amendments of Rules 7.201, 7.202, 7.203, 7.204, 7.205, 7.206, 7.207, 7.208, 7.209, 7.210, 7.211, 7.212, 7.213, 7.215, 7.216, 7.217, and 7.219 of the Michigan Court Rules
To read ADM File No. 2022-32, dated October 26, 2022, visit https://www.courts.michigan.gov/courts/supreme-court/ and click “Administrative Matters & Court Rules” and “Proposed & Recently Adopted Orders on Admin Matters.”
ADM File No. 2022-06 Amendment of Rule 3.101 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 amendment of Rule 3.101 of the Michigan Court Rules is adopted, effective Jan. 1, 2023.
[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]
Rule 3.101 Garnishment After Judgment
(A)-(E) [Unchanged.]
(F) Service of Writ.
(1) The plaintiff shall serve the writ of garnishment, a copy of the writ for the defendant, the disclosure form, and any applicable fees, on the garnishee within 182 days after the date the writ was issued in the manner provided for the service of a summons and complaint in MCR 2.105, except that service upon the state treasurer may be made in the manner provided under subrule (3).
(2) [Unchanged.]
(3) Unless service is subject to electronic filing under MCR 1.109(G), service upon the state treasurer or any designated employee may be completed electronically in a manner provided under guidelines established by the state treasurer. Guidelines established under this subsection shall be published on the Department of Treasury’s website and shall identify, at a minimum, each acceptable method of electronic service, the requirements necessary to complete service, and the address or location for each acceptable method of service. For purposes of this subsection:
(i) Electronic service authorized under the guidelines shall include magnetic media, e-mail, and any other method permitted at the discretion of the state treasurer.
(ii) Service in the manner provided under this subsection shall be treated as completed as of the date and time submitted by the plaintiff, except that any submission made on a Saturday, Sunday, or legal holiday shall be deemed to be served on the next business day.
(G)-(T) [Unchanged.]
Staff Comment (ADM File No. 2022-06): The amendment of MCR 3.101 allows writs of garnishment to be served electronically on the Department of Treasury, subject to current e-filing requirements and guidelines established by the Department of Treasury.
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.
ADM File No. 2020-13 Amendment of Rule 6.005 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 amendment of Rule 6.005 of the Michigan Court Rules is adopted, effective Jan. 1, 2023.
[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]
Rule 6.005 Right to Assistance of Lawyer; Advice; Appointment for Indigents; Waiver; Joint Representation; Grand Jury Proceedings
(A)-(G) [Unchanged.]
(H) Scope of Trial Lawyer’s Responsibilities.
(1) The responsibilities of the trial lawyer who represents the defendant include
(a1) representing the defendant in all trial court proceedings through initial sentencing,
(b2) filing of interlocutory appeals the lawyer deems appropriate, and
(c3) responding to any preconviction appeals by the prosecutor. Unless an appellate lawyer has been appointed or retained, tThe defendant’s trial lawyer must either:
(i) file a substantive brief in response to anythe prosecutor’s interlocutory application for leave to appeal, appellant’s brief, or substantive motion; or
(ii) notify the Court of Appeals in writing that the defendant has knowingly elected not to file a responsethat the lawyer will not be filing a brief in response to the application.
(24) [Renumbered but otherwise unchanged.]
(35) Wwhen an appellate lawyer has been appointed or retained, the trial lawyer is responsible for promptly making the defendant’s file, including all discovery material obtained and exhibits in the trial lawyer’s possession, reasonably available for copying upon request of the appellatethat lawyer. The trial lawyer must retain the materials in the defendant’s file for at least five years after the case is disposed in the trial court.
(I) [Unchanged.]
Staff Comment (ADM File No. 2020-13): The amendment of MCR 6.005 clarifies the duties of attorneys in preconviction appeals.
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.
Welch, J. (concurring). I fully support the Court’s efforts to clarify a criminal defense trial attorney’s responsibilities regarding preconviction appeals. The importance of representation for defendants at the early stage of criminal proceedings cannot be overstated. However, many of the concerns that I previously raised when this rule was published for comment remain. See Proposed Amendment of MCR 6.005, 507 Mich __ , __ (2021) (Welch, J., concurring). Under the amended rule, unless separate appellate counsel has been retained or appointed, a trial attorney is required to respond to any preconviction appeal filings submitted by a prosecutor, MCR 6.005(H)(1)(c)(i), or “notify the Court of Appeals in writing that defendant has knowingly elected not to file a response,” MCR 6.005(H)(1)(c)(ii). These options are likely sufficient in most circumstances. But what if no competent appellate attorney is willing to take the case and the trial attorney does not believe they are sufficiently competent in appellate practice or believes that their busy trial schedule will make it unreasonably difficult to provide effective representation in the Court of Appeals? In such circumstances, MRPC 1.1 might require the attorney to consider asking to withdraw as counsel for the accused. Courts generally have broad discretion to decide whether to allow counsel to withdraw. See, e.g., People v Williams, 386 Mich 565 (1972); People v Echavarria, 233 Mich App 356 (1999). If the trial court grants a request to withdraw, then the attorney’s ethical conundrum is solved, but the accused will need a new attorney. If the trial court denies a request to withdraw, then that could increase the likelihood of ineffective-assistance-of-counsel concerns before the Court of Appeals. Additionally, if a client is unable or unwilling to pay any additional fee that a retained trial attorney charges for a preconviction appeal, is the retained attorney now required to work for free? If so, what effect would that have on the attorney-client relationship? While attorney ethics rules have been modified to allow for unbundled representation in civil litigation, similar modifications have not been made in the criminal context. Thus, I question whether criminal defense trial attorneys can solve the challenges I have raised by entering into limited-scope representation agreements with their clients. See MCR 6.005(H)(1) (scope of trial lawyer’s responsibilities); MCR 2.117 (effect of appearance by attorney in an action); MRPC 1.1 (duty to provide competent representation); and MRPC 1.2 (scope of representation). Although in most cases a transition to or partnership with appellate counsel will likely occur, it also seems predictable that there will be situations where one of the scenarios I have outlined could arise. My concerns cause me to believe that we should state explicitly in this rule that trial attorneys are permitted to withdraw if they reasonably believe that they are unable to represent the accused competently and ethically before the Court of Appeals. In summary, while the adopted amendments are an important improvement, I remain concerned that lingering ambiguity in the court rule will lead to situations that we may be required to address in the future.
ADM File No. 2021-50 Proposed Addition of Rule 2.421 of the Michigan Court Rules
On order of the Court, this is to advise that the Court is considering an addition of Rule 2.421 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.
[NEW] Rule 2.421 Notice of Bankruptcy Proceedings
(A) Applicability. This rule applies to all pending state court actions in which a party is either:
(1) a named debtor in a bankruptcy proceeding; or
(2) an officer, director, or majority equity holder of a named debtor in a bankruptcy proceeding.
(B) Party Subject to Bankruptcy Proceeding. Any party in a pending state court action who is or becomes subject to a bankruptcy proceeding as provided in subrule (A) must file notice of the bankruptcy proceeding in the pending state court action no later than 7 days after becoming subject to bankruptcy proceedings.
(C) Other Parties. If a party to a pending state court action learns of a bankruptcy proceeding described in subrule (A) and notice of the bankruptcy proceeding has not previously been filed and served, the party that learned of the bankruptcy proceeding may file notice of the bankruptcy proceeding in the pending state court action.
(D) Notice Contents. Notice of a bankruptcy proceeding filed under this rule must, at a minimum, include all of the following:
(1) name(s) of the party described in subrule (A) and his or her designation as the named debtor, officer, director, or major equity holder of a named debtor;
(2) the court name and case number of the bankruptcy proceeding; and, if available,
(3) the name, telephone number, physical address, and email address for the debtor’s attorney in the bankruptcy proceeding.
(E) Service of Notice. Notice of a bankruptcy proceeding filed under this rule must be served on all parties to the pending state court action as provided in MCR 2.107.
(F) Effect of Notice. If a notice is filed under this rule, the court may, on the motion of a party or on its own initiative, order the administrative closure of the state court action or set the matter for a status conference to determine if the case is subject to an automatic stay. If the state court action has been administratively closed under this subrule or otherwise, it may be reopened if, on the motion of a party or on the court’s own initiative, the court determines that the automatic bankruptcy stay has been lifted, removed, or otherwise no longer impairs adjudication.
Staff Comment (ADM File No. 2021-50): The proposed addition of MCR 2.421 would address notice of a bankruptcy proceeding that affects a pending state court action.
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 Feb. 1, 2023 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 submitting a comment, please refer to ADM File No. 2021-50. Your comments and the comments of others will be posted under the chapter affected by this proposal.
ADM File No. 2022-05 Proposed Amendments of Rules 3.977, 3.993, 7.311, and 7.316 of the Michigan Court Rules
On order of the Court, this is to advise that the Court is considering amendments of Rules 3.977, 3.993, 7.311, and 7.316 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.
[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]
Rule 3.977 Termination of Parental Rights
(A)-(J) [Unchanged.]
(K) Review Standard. The clearly erroneous standard shall be used in reviewing the court’s findings on appeal from an order terminating parental rights. On application in accordance with Chapter 7 of these rules, the Supreme Court may consider a claim of ineffective assistance of appellate counsel, and the Court will review such a claim using the standards that apply to criminal law.
Rule 3.993 Appeals
(A)-(B) [Unchanged.]
(C) Procedure; Delayed Appeals.
(1) [Unchanged.] (2) Ineffective Assistance of Appellate Counsel Claims. In accordance with MCR 7.316(D), the Supreme Court may consider a claim of ineffective assistance of appellate counsel in cases involving termination of parental rights.
(2) [Renumbered (3) but otherwise unchanged.]
(D)-(E) [Unchanged.]
Rule 7.311 Motions in Supreme Court
(A)-(G) [Unchanged.]
(H) Motion to Expand Record in Cases Involving Termination of Parental Rights. In a case involving termination of parental rights, a respondent who claims ineffective assistance of appellate counsel under MCR 7.316(D) may file a motion to expand the record to support that claim if appellate counsel’s errors are not evident on the record. The motion must be filed no later than the date the application is due.
Rule 7.316 Miscellaneous Relief
(A)-(C) [Unchanged.]
(D) Ineffective Assistance of Appellate Counsel Claims in Appeals Involving Termination of Parental Rights. If a respondent’s application for leave to appeal raises the issue of ineffective assistance of appellate counsel, the Court may consider the claim. In making its determination and in addition to any other action allowed by these rules or law, the Court may take the following actions:
(1) order the trial court to appoint new appellate counsel under MCR 3.993(D),
(2) allow the respondent time to retain new appellate counsel,
(3) grant a motion to expand the record under MCR 7.311(H), or
(4) remand the case to the Court of Appeals for a new appeal.
Staff Comment (ADM File No. 2022-05): The proposed amendments of MCR 3.977, 3.993, 7.311, and 7.316 would establish a procedure for assessing whether a respondent in a termination of parental rights case was denied the effective assistance of appellate counsel, and if so, provide relief.
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 Feb. 1, 2023 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 submitting a comment, please refer to ADM File No. 2022-05. Your comments and the comments of others will be posted under the chapter affected by this proposal.
ADM File No. 2022-01 Assignment of Business Court Judge in the 3rd Circuit Court (Wayne County)
On order of the Court, effective Jan. 1, 2023, Hon. Annette J. Berry is assigned to serve as a business court judge in the 3rd Circuit Court for a term expiring April 1, 2025.
ADM File No. 2022-34 Proposed Amendments of Rules 3.913, 3.943, 3.977, and 3.993 and Proposed Addition of Rule 3.937 of the Michigan Court Rules
On order of the Court, this is to advise that the Court is considering amendments of Rules 3.913, 3.943, 3.977, and 3.993 and a proposed addition of Rule 3.937 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.
[Additions to the text are indicated in underlining and deleted text is shown by strikeover.]
Rule 3.913 Referees
(A)-(B) [Unchanged.]
(C) Advice of Rights to Review of Referee’s Recommendations.
(1) During a hearing held by a referee, the referee must inform the parties of the right to file a request for review of the referee’s recommended findings and conclusions as provided in MCR 3.991(B). (2) At the conclusion of a hearing described in MCR 3.937(A), the referee must provide the juvenile with advice of appellate rights in accordance with MCR 3.937. When providing this advice, the referee must state that the appellate rights do not attach until the judge enters an order described in MCR 3.993(A).
[NEW] Rule 3.937 Advice of Appellate Rights
(A) At the conclusion of a dispositional hearing under MCR 3.943 or any delinquency hearing at which the court orders that the juvenile be removed from a parent’s care and custody, the court must advise the juvenile on the record that:
(1) The juvenile has a right to appellate review of the order.
(2) If the juvenile cannot afford an attorney for appeal, the court will appoint an attorney at public expense and provide the attorney with the complete transcripts and record of all proceedings.
(3) A request for the appointment of an appellate attorney must be made within 21 days after notice of the order is given or an order is entered denying a timely-filed postjudgment motion.
(B) An advisement of rights must be made in plain, age-appropriate language designed to ensure the juvenile’s understanding of their rights. After advising a juvenile of their rights, the court must inquire whether the juvenile understands each of their rights.
(C) The court must provide the juvenile with a request for appointment of appellate counsel form containing an instruction that the form must be completed and filed as required by MCR 3.993(D) if the juvenile wants the court to appoint an appellate attorney.
Rule 3.943 Dispositional Hearing
(A)-(E) [Unchanged.]
(F) Advice of Appellate Rights. At the conclusion of the dispositional hearing, the court must provide the juvenile with advice of appellate rights in accordance with MCR 3.937.
Rule 3.977 Termination of Parental Rights
(A)-(I) [Unchanged.]
(J) Respondent’s Rights Following Termination.
(1) Advice. Immediately after entry of an order terminating parental rights, the court shall advise the respondent parent orally or in writing that:
(a)-(b) [Unchanged.]
(c) A request for the assistance of an attorney must be made within 2114 days after notice of the order is given or an order is entered denying timely filed postjudgment motion. The court must then give a form to the respondent with the instructions (to be repeated on the form) that if the respondent desires the appointment of an attorney, the form must be returned to the court within the required period (to be stated on the form).
(d)-(e) [Unchanged.]
(2) [Unchanged.]
(K) [Unchanged.]
Rule 3.993 Appeals
(A)-(C) [Unchanged.]
(D) Request and Appointment of Counsel.
(1) A request for appointment of appellate counsel must be made within 2114 days after notice of the order is given or an order is entered denying a timely filed postjudgment motion.
(2)-(3) [Unchanged.]
(E) [Unchanged.]
Staff Comment (ADM File No. 2022-34): The proposed amendments of MCR 3.913 and 3.943 and proposed addition of MCR 3.937 would provide greater due process protections for juveniles in the justice system by ensuring that they are fully advised of their appellate rights at appropriate times and in a manner that is designed to ensure understanding of those rights. The proposed amendments of MCR 3.977 and 3.993 would extend the timeframe for requesting appointment of appellate counsel to 21 days, which mirrors the timeframe for filing a claim of appeal in cases subject to those rules.
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 March 1, 2023, 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 submitting a comment, please refer to ADM File No. 2022-34. Your comments and the comments of others will be posted under the chapter affected by this proposal.