From the Michigan Supreme Court May 2023

ADM File No. 2019-33
Proposed Rescission of Administrative Order No. 2021-7 and Proposed Adoption of the Michigan Continuing Judicial Education Rules

To read ADM File No. 2019-33 dated March 15, 2023, visit courts.michigan.gov/494784/siteassets/rules-instructions-administrative-orders/proposed-and-recently-adopted-orders-on-admin-matters/proposed-orders/2019-33_2023-03-15_formor_propmcjerules.pdf

ADM File No. 2022-32
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 March 22, 2023, visit courts.michigan.gov/495454/siteassets/rules-instructions-administrative-orders/proposed-and-recently-adopted-orders-on-admin-matters/adopted-orders/2022-32_2023-03-22_formor_amdmcr7.200.pdf

ADM File No. 2021-10
Proposed Amendments of the Michigan Rules of Evidence

To read ADM File No. 2021-10 dated March 22, 2023, visit courts.michigan.gov/49581e/siteassets/rules-instructions-administrative-orders/proposed-and-recently-adopted-orders-on-admin-matters/proposed-orders/2021-10_2023-03-22_formor_propmre.pdf

ADM File No. 2023-01
Assignment of Business Court Judge in the 7th Circuit Court (Genesee County)

On order of the Court, effective immediately, Hon. B. Chris Christenson is assigned to serve as a business court judge in the 7th Circuit Court for a term expiring April 1, 2025.

ADM File No. 2023-01
Supreme Court Appointment to the Committee on Model Civil Jury Instructions

On order of the Court, pursuant to Administrative Order No. 2001-6 and effective immediately, Debra Freid is appointed to the Committee on Model Civil Jury Instructions for a partial term ending Dec. 31, 2024.

ADM File No. 2023-01
Supreme Court Appointments to the Court Reporting and Recording Board of Review

On order of the Court, pursuant to MCR 8.108(G)(2)(a) and effective April 1, 2023:

• Hon. Timothy J. Kelly, district court judge, is reappointed to a second four-year term that will expire on March 31, 2027;
• Hon. Jennifer S. Callaghan, probate court judge, is reappointed to a second four-year term that will expire on March 31, 2027;
• Jessica Jaynes, certified court reporter, is reappointed to a first four-year term that will expire on March 31, 2027; and
• Kris Fuller, certified court recorder, is reappointed to a second four-year term that will expire on March 31, 2027.

ADM File No. 2013-17
Proposed Amendment of Rule 3.206 of the Michigan Court Rules

On order of the Court, the proposed amendment of Rule 3.206 of the Michigan Court Rules having been published for comment at 495 Mich 1227 (2014), and an opportunity having been provided for comment in writing and at a public hearing, the Court declines to adopt the proposed amendment. This administrative file is closed without further action.

ADM File No. 2021-40
Amendment of Rule 5 of the Rules for the Board of Law Examiners

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 5 of the Rules for the Board of Law Examiners is adopted, effective May 1, 2023.

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

Rule 5 Admission Without Examination

(A) Definitions. For purposes of this rule, the following definitions apply.

(a) “Full-time” is 21 or more hours per week.

ADM File No. 2021-49
Amendment of Rule 2.002 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 2.002 of the Michigan Court Rules is adopted, effective May 1, 2023.

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

Rule 2.002 Waiver of Fees for Indigent Persons

(A) Applicability and Scope.

(1)-(2) [Unchanged.]

(3) Waiver of filing fees for prisoners who are under the jurisdiction of the Michigan Department of Corrections is governed by MCL 600.2963 and as provided in this rule.

(3)-(5) [Renumbered (4)-(6) but otherwise unchanged.]

(B) Request for Waiver of Fees. A request to waive fees must accompany the documents the individual is filing with the court. If the request is being made by a prisoner under the jurisdiction of the Michigan Department of Corrections, the prisoner must also file a certified copy of their institutional account showing the current balance and a 12-month history of any deposits and withdrawals. The request must be on a form approved by the State Court Administrative Office entitled “Fee Waiver Request.” Except as provided in subrule (K), no additional documentation may be required. The information contained on the form shall be nonpublic. The request must be verified in accordance with MCR 1.109(D)(3)(b) and may be signed either

(1)-(2) [Unchanged.]

(C)-(F) [Unchanged.]

(G) Order Regarding a Request to Waive Fees. A judge shall enter an order either granting or denying a request made under (E) or (F) within three business days and such order shall be nonpublic. If required financial information is not provided in the waiver request, the judge may deny the waiver. An order denying shall indicate the reason for denial. The order granting a request must include a statement that the person for whom fees are waived is required to notify the court when the reason for waiver no longer exists.

(1) The clerk of the court shall send a copy of the order to the individual. Except as otherwise provided in this subrule, iIf the court denied the request, the clerk shall also send a notice that to preserve the filing date the individual must pay the fees within 14 days from the date the clerk sends notice of the order or the filing will be rejected. If the individual is a prisoner under the jurisdiction of the Michigan Department of Corrections, the clerk’s notice shall indicate that the prisoner must pay the full or partial payment ordered by the court within 21 days after the date of the order, or the filing will be rejected.

(2) De Novo Review of Fee Waiver Denials.

(a) Request for De Novo Review. Except as otherwise provided in this subrule, iIf the court denies a request for fee waiver, the individual may file a request for de novo review within 14 days of the notice denying the waiver. A prisoner under the jurisdiction of the Michigan Department of Corrections may file the de novo review request within 21 days of the notice denying the waiver. There is no motion fee for the request. A request for de novo review automatically stays the case or preserves the filing date until the review is decided. A de novo review must be held within 14 days of receiving the request.

(b)-(c) [Unchanged.]

(H)-(L) [Unchanged.]

Staff Comment (ADM File No. 2021-49): The amendments of MCR 2.002(B) and (G) provide procedural direction to courts regarding prisoner requests for fee waivers in civil actions.

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. 2021-32
Amendment of Rule 6.112 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 6.112 of the Michigan Court Rules is adopted, effective May 1, 2023.

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

Rule 6.112 The Information or Indictment (A)-(E) [Unchanged.]

(F) Notice of Intent to Seek Enhanced Sentence. A notice of intent to seek an enhanced sentence pursuant to MCL 769.13 must list the prior convictions that may be relied upon for purposes of sentence enhancement. The notice must contain, if applicable, any mandatory minimum sentence required by law as a result of the sentence enhancement. The notice must be filed within 21 days after the defendant’s arraignment on the information charging the underlying offense or, if arraignment is waived or eliminated as allowed under MCR 6.113(E), within 21 days after the filing of the information charging the underlying offense.

(G)-(H) [Unchanged.]

Staff Comment (ADM File No. 2021-32): The amendment of MCR 6.112(F) requires that the notice of intent to seek an enhanced sentence contain any mandatory minimum sentence required by law as a result of the enhancement.

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. 2020-29
Amendment of Rule 410 of the Michigan Rules of Evidence

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 410 of the Michigan Rules of Evidence is adopted, effective May 1, 2023.

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

Rule 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) A plea of guilty which was later withdrawn or vacated;

(2) [Unchanged.]

(3) Any statement made in the course of any proceedings under MCR 6.302 or MCR 6.310 or comparable state or federal procedure regarding either of the foregoing pleas; or

(4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn or vacated.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Staff Comment (ADM File No. 2020-29): The amendment in this file adds vacated pleas to the list of guilty pleas that may not be used against defendant. In addition, the amendment adds a reference to MCR 6.310 in subsection (3), which makes inadmissible statements made during a proceeding on defendant’s motion to withdraw his or her plea and statements made during the prosecution’s motion to vacate a plea for failure to comply with the terms of a plea agreement.

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.

ADM File No. 2020-31
Proposed Amendment of Rule 1.8 of the Michigan Rules of Professional Conduct

On order of the Court, this is to advise that the Court is considering an amendment of Rule 1.8 of the Michigan Rules of Professional Conduct. 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 1.8 Conflict of Interest: Prohibited Transactions.

(a)-(d) [Unchanged.]

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that

(1)-(2) [Unchanged.]

(3) provided that the lawyer represents the indigent client pro bono, pro bono through a nonprofit legal services or public interest organization, or pro bono through a law school clinical or pro bono program, a lawyer representing an indigent client may pay for or provide the following types of assistance to the client to facilitate the client’s access to the justice system in the matter: transportation to and from court proceedings; lodging if it is less costly than providing transportation for multiple days; meals during long court proceedings; or clothing for court appearances. The legal services must be delivered at no fee to the indigent client, and the lawyer:

(i) may not promise, assure or imply the availability of such assistance prior to retention or as an inducement to continue the client-lawyer relationship after retention;

(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and

(iii) may not publicize or advertise a willingness to provide such assistance to prospective clients.

Funds raised for any legal services or public interest organization for purposes of providing legal services will not be considered useable for providing assistance to indigent clients, and assistance referenced in this subsection may not include loans or any other form of support that causes the client to be financially beholden to the provider of the assistance.

Assistance provided under (3) may be provided even if the indigent client’s representation is eligible for a fee under a fee-shifting statute.

(f)-(j) [Unchanged.]

Comment:

[Unchanged except for the following proposed additional language]

Humanitarian Exception.

Paragraph (e)(3) serves as a humanitarian exception. The lawyer can assist the client with needs that frustrate the client’s access to the justice system in the specific matter for which the representation was undertaken, while still preserving the nature of the attorney-client relationship. For purposes of this rule, indigent is defined as people who are unable, without substantial financial hardship to themselves and their dependents, to obtain competent, qualified legal representation on their own.

Staff Comment (ADM File No. 2020-31): The proposed amendment of MRPC 1.8 would allow attorneys to provide certain assistance to indigent clients they are serving on a pro bono basis.

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 July 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. 2020-31. Your comments and the comments of others will be posted under the chapter affected by this proposal.

ADM File No. 2023-06
Amendments of Rules 6.001 and 8.119, and Addition of Rule 6.451 of the Michigan Court Rules

On order of the Court, the following amendments of Rules 6.001 and 8.119 and addition of Rule 6.451 of the Michigan Court Rules are adopted, effective April 11, 2023. Concurrently, individuals are invited to comment on the form or the merits of the amendments and addition 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 public hearings are posted at Administrative Matters & Court Rules page.

Immediate adoption of this proposal does not necessarily mean that the Court will retain the amendments in their present form following the public comment period.

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

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(A) and (C)-(E), 6.101, 6.103, 6.104(A), 6.105-6.106, 6.125, 6.202, 6.425(D)(3), 6.427, 6.430, 6.435, 6.440, 6.441, 6.445, 6.450, 6.451, and the rules in subchapter 6.600 govern matters of procedure in criminal cases cognizable in the district courts.

(C)-(E) [Unchanged.]

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)-(8) [Unchanged.]

(9) Set Aside Convictions. Information on set aside convictions is nonpublic and access is limited to a court of competent jurisdiction, an agency of the judicial branch of state government, the department of corrections, a law enforcement agency, a prosecuting attorney, the attorney general, and the governor upon request and only for the purposes identified in MCL 780.623. Access may also be provided to the individual whose conviction was set aside, that individual’s attorney, and the victim(s) as defined in MCL 780.623. The court must redact all information related to the set aside conviction or convictions before making the case record available to the public in any format.

(I)-(L) [Unchanged.]

[NEW] Rule 6.451 Reinstatement of Convictions Set Aside Without Application

A conviction that was automatically set aside by operation of law under MCL 780.621g must be reinstated by the court as provided in MCL 780.621h. The court must:

(A) provide notice and an opportunity to be heard before reinstating a conviction for failure to make a good faith effort to pay restitution under MCL 780.621h(3),

(B) order the reinstatement on a form approved by the State Court Administrative Office,

(C) serve any order entered under this rule on the prosecuting authority and the individual whose conviction was automatically set aside.

An order for reinstatement of a conviction that was improperly or erroneously set aside as provided in MCL 780.621h(2) must advise the individual whose conviction is being reinstated that he or she may object to the reinstatement by requesting a hearing. The request must be filed with the court on a form approved by the State Court Administrative Office.

Staff Comment (ADM File No. 2023-06): The amendment of MCR 8.119 requires courts to restrict access to case records involving set aside convictions similar to how MCL 780.623 restricts access to records maintained by the Michigan State Police. The amendment further requires the court to redact information regarding any conviction that has been set aside before that record is made available. The addition of MCR 6.451 requires the court to provide notice and an opportunity to be heard before reinstating a conviction for failure to make a good faith effort to pay restitution under MCL 780.621h(3) and to order the reinstatement on an SCAO-approved form. The amendment of MCR 6.001 clarifies that MCR 6.451 applies to cases cognizable in the district courts.

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 July 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. 2023-06. Your comments and the comments of others will be posted under the chapter affected by this proposal.

Viviano, J. (concurring).

I concur with the adoption of these revisions and giving them effect prior to the close of public comments and consideration at a public hearing. I write to express my concerns about certain aspects of the revisions that this Court must consider when this matter returns to us to decide whether to retain the amendments we have adopted today. First, we must consider what obligations the new expungement statutory amendments impose on courts. MCL 780.623 does not directly address court records at all. Rather, it pertains to records that the Department of State Police must retain.¹ MCL 780.623(5) makes it a crime for a person other than the defendant whose conviction was set aside or the victim to divulge, use, or publish information concerning a set-aside conviction. But it is not clear to me that this provision applies to court clerks.² Second, if MCL 780.623(5) does pertain to court records and court staff, the constitutionality of the statute must be considered. Is the issue of nonpublic court records one of substantive law, such that it is within the province of the Legislature, or one of practice and procedure, such that it falls within our constitutional authority to determine such rules? See generally McDougall v. Schanz, 461 Mich 15, 26-36 (1999). Third, we should consider what constitutional authority, if any, we have to broadly restrict a class of court records. See In re Leopold, 448 US App DC 77, 79 (2020) (“The public’s right of access to judicial records is a fundamental element of the rule of law.”). These are important and difficult questions that should have been fully addressed prior to any changes to the court rules taking effect.³ It is incumbent on this Court to ensure they are adequately addressed when this matter returns to us at the close of the public comment period and after public hearing.

1. As a matter of practice, courts have treated records relating to set-aside convictions as nonpublic. The State Court Administrative Office has published guidelines for courts addressing nonpublic and limited-access court records, indicating that the existence of records governed by MCL 780.621 and MCL 780.623 cannot be acknowledged. SCAO, Nonpublic and Limited-Access Court Records (Revised Jan 2023) (accessed March 24, 2023) [https://perma.cc/G62C-Z4B8].

2. MCL 780.623(5) broadly prohibits any person, other than the defendant and victim from divulging, using, or publishing information concerning a set-aside conviction and makes it a misdemeanor to do so. I also question whether such a broad prohibition, which appears to criminalize any reference to an expunged conviction unless it is made by the defendant or the victim, runs afoul of the First Amendment. See Volokh, The Volokh Conspiracy, Mass. Trial Court Rejects Right to Be Forgotten (posted April 13, 2021) (accessed March 24, 2023) [https://perma.cc/GF5P-LAG4].

3. I am once again dismayed by the timing of the proposed amendments. The legislation prompting them, 2020 PA 193, was signed into law in October 2020, over two years ago, but the proposed amendments were not provided to us until a few weeks ago. This is not the first time we have been asked to impose significant changes to how our courts operate with little advance notice to judges and court staff and no opportunity for public comment prior to at least some of the changes becoming effective. The delay in this matter is especially concerning given the estimate that 1,250,000 convictions will be automatically set aside on April 11, 2023. These changes will have a very significant and immediate effect on how our courts manage their files and provide public access. The public, judges, court staff, defense attorneys, prosecutors, and victim advocate groups need guidance but should have been given an opportunity to provide public comment prior to these changes taking effect.

ADM File No. 2023-06
Proposed Amendments of Rules 6.110 and 8.119 of the Michigan Court Rules

On order of the Court, this is to advise that the Court is considering amendments of Rules 6.110 and 8.119 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 public hearings are posted at Administrative Matters & Court Rules 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 6.110 The Preliminary Examination

(A)-(F) [Unchanged.]

(G) Return of Examination. Immediately on concluding the examination, the court must certify and transmit to the court before which the defendant is bound to appear the prosecutor’s authorization for a warrant application, the complaint, a copy of the register of actions, the examination return, and any recognizances received, and any motions, responses, or orders entered in the case.

(H)-(I) [Unchanged.]

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)-(9) [Unchanged.]

(10) Circuit Court Bindover. All case records maintained by the district court become nonpublic immediately after the entry of an order binding the defendant over to the circuit court. The circuit court case record remains accessible as provided by this rule.

(I)-(L) [Unchanged.]

Staff Comment (ADM File No. 2023-06): The proposed amendment of MCR 8.119 would require all case records maintained by the district court to become nonpublic immediately after bindover to the circuit court. This proposal would also amend MCR 6.110(G) to expand the types of documents that must be transmitted to the circuit court to ensure appropriate public access in the circuit court. The proposal would consolidate public access in the circuit court case file and would also uniformly ensure that information regarding set aside criminal offenses in the circuit court cannot be separately accessed in the district court case file.

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 July 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. 2023-06. Your comments and the comments of others will be posted under the chapter affected by this proposal.