AT THE CAPITOL

HB 4384 (Meerman) Criminal procedure: sentencing; Corrections: jails; State agencies (existing): corrections; Criminal procedure: sentencing; duties of the Michigan sentencing commission; provide for. Amends 1927 PA 175 (MCL 760.1 - 777.69) by adding sec. 34b to ch. IX.

POSITION: Support with the following amendments:

• The membership of the commission should be altered to ensure that it is balanced, and representative of the interests and stakeholders involved in, and impacted by, sentencing policy. Similar to the Joint Task Force on Jail and Pretrial Incarceration. The membership is too heavily weighted toward law enforcement and prosecutors, while leaving out or underrepresenting other valuable perspectives.
• The chair of the commission should not be the commission’s “chief of staff,” nor should the chair be a paid position.
• The Legislature should also consider language charging the commission with making recommendations as to the extent to which sentencing guidelines should or should not apply to habitual offenders and the extent to which sentencing guidelines should apply to probation violations or be modified if applied to probation violations.

(Position adopted by non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Christenson, Clement, Detzler, Easterly, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Murray, McGill, Newman, Nyamfukudza, Perkins, Potts, Quick, Reiser, Simmons, Van Dyk, Washington. Commissioner abstaining: Walton.)

HB 4421 (Young) Civil procedure: other; Communications: video services; Consumer protection: privacy; Civil procedure: other; certain public video recordings of court proceedings; allow the victims’ faces to be blurred. Amends secs. 8, 38 & 68 of 1985 PA 87 (MCL 780.758 et seq.).

POSITION: Support HB 4421 with amendments to provide that a victim’s image must be blurred, and that blurring does not apply to contemporaneous streaming.

HB 4624 (Morse) Human services: children’s services; Human services: county services; Children: child care; Human services: children’s services; county child care fund reimbursement rate; increase. Amends sec. 117a of 1939 PA 280 (MCL 400.117a).

POSITION: Support.

HB 4625 (Carter) Juveniles: criminal procedure; Juveniles: juvenile justice services; Juveniles: criminal procedure; use of screening tool for minors eligible for a certain diversion option; require. Amends secs. 2, 3, 6 & 9 of 1988 PA 13 (MCL 722.822 et seq.).

POSITION: Support.

(Position adopted by non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Christenson, Clement, Detzler, Easterly, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Murray, McGill, Newman, Nyamfukudza, Perkins, Potts, Quick, Reiser, Simmons, Van Dyk, Washington. Commissioner voting in opposition of the position: Walton.)

HB 4626 (Hope) Juveniles: other; Juveniles: juvenile justice services; Juveniles: other; length of time youth can be placed on precourt diversion program; limit. Amends secs. 5 & 6 of 1988 PA 24 (MCL 722.825 & 722.826).

POSITION: Support with amendment to eliminate the possibility of restitution being used to exclude eligibility for pre-court diversion and the consent calendar, and to provide adequate criteria for determining when diversion should be extended beyond three months.

(Position adopted by non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Christenson, Clement, Detzler, Easterly, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Murray, McGill, Newman, Nyamfukudza, Perkins, Potts, Quick, Reiser, Simmons, Van Dyk, Walton. Commissioner voting against the position: Washington.)

HB 4627 (Tsernoglou) Courts: family division; Juveniles: criminal procedure; Juveniles: juvenile justice services; Courts: family division; use of risk and needs assessment for juveniles in the juvenile justice system before disposition; require. Amends sec. 18, ch. XIIA of 1939 PA 288 (MCL 712A.18).

POSITION: Support.

HB 4628 (Brabec) Courts: family division; Juveniles: criminal procedure; Juveniles: juvenile justice services; Courts: family division; use of screening tool for minors sought to be placed on the consent calendar; require. Amends sec. 2f, ch. XIIA of 1939 PA 288 (MCL 712A.2f).

POSITION: Support.

(Position adopted by non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Christenson, Clement, Detzler, Easterly, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Murray, McGill, Newman, Nyamfukudza, Perkins, Potts, Quick, Reiser, Simmons, Van Dyk, Washington. Commissioner voting in opposition of the position: Walton.)

HB 4629 (O’Neal) Juveniles: other; Juveniles: juvenile justice services; Criminal procedure: other; Juveniles: other; detention of juveniles in certain circumstances; modify. Amends sec. 15 & 16, ch. XIIA of 1939 PA 288 (MCL 712A.15 & 712A.16).

POSITION: Support with an amendment, consistent with the Board’s position on the underlying Task Force recommendation, that: “Any statements, admissions, confessions, or incriminating evidence obtained from a minor in the course of a screening under this section are not admissible into evidence in any adjudicatory hearing in which the minor is accused and are not subject to subpoena or any other court purpose for use in any other proceeding or for any other purpose.”

HB 4630 (Lightner) Courts: other; Juveniles: juvenile justice services; Courts: other; Michigan indigent defense commission act; expand duties to include indigent defense of youth. Amends title & secs. 3, 5, 7, 9, 11, 13, 15, 17, 21 & 23 of 2013 PA 93 (MCL 780.983 et seq.).

POSITION: Support.

HB 4631 (Lightner) Courts: other; Juveniles: juvenile justice services; Courts: other; duties of the appellate defender; include requirement to defend youth. Amends title & secs. 2, 4, 6 & 7 of 1978 PA 620 (MCL 780.712 et seq.) & adds secs. 1a & 8a.

POSITION: Support with following amendments:

• Add a new subsection (d) to Section 1a, defining “local contribution” in a manner that incorporates proposed new language in the MIDC Act addressing annually compounding inflationary increases to local costs:
• (d) “Local contribution” means an indigent defense system’s average annual expenditure for attorney fees and expenses during the first 3 full fiscal years in which the system has complied with the standard procedure established under subsection 8a(2), excluding expenditures reimbursed under subsection 8a(4). If the Consumer Price Index has increased since November 1 of the prior state fiscal year, the local contribution must be adjusted and compounded annually by that number or 3%, whichever is less.
• Revise Section 8a with reference to the newly defined “local contribution” as follows:
• (4) Subject to appropriation, if an indigent defense system provides payment to locally appointed private counsel under subsection (2) pursuant to the rates and policies established under subsection (3), the state shall reimburse the system for 1/2 of the cost expenditures to the system. After a system has complied with subsection (2) for 3 full fiscal years, the state shall reimburse the system for all costs expenditures exceeding 1/2 of the system’s average annual pre-reimbursement cost during its first 3 years of compliance the system’s local contribution. It is the intent of the legislature to fully fund this reimbursement.

HB 4633 (Breen) Juveniles: other; Juveniles: juvenile justice services; Courts: family division; Juveniles: other; factors in designating or waiving certain juvenile cases; require the court to consider, and place certain limits on consent calendar plans. Amends secs. 2d, 2f & 4, ch. XIIA of 1939 PA 288 (MCL 712A.2d et seq.).

POSITION: Oppose.

(Position adopted by non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Christenson, Clement, Detzler, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Murray, McGill, Newman, Nyamfukudza, Perkins, Quick, Reiser, Simmons, Van Dyk, Walton, Washington. Commissioner voting in opposition of the position: Potts. Commissioner abstaining: Easterly.)

HB 4634 (Hope) Juveniles: other; Juveniles: criminal procedure; Juveniles: other; juvenile fines, fees, and costs; eliminate. Amends secs. 2f, 18, 28 & 29 of 1939 PA 288 (MCL 712A.2f et seq.); adds sec. 29a to ch. XIIA & repeals sec. 18m, ch. XIIA of 1939 PA 288 (MCL 712A.18m).

POSITION: Support.

HB 4635 (Andrews) Juveniles: other; Juveniles: criminal procedure; Criminal procedure: DNA; Juveniles: other; DNA fine for juveniles; eliminate. Amends sec. 6 of 1990 PA 250 (MCL 28.176).

POSITION: Support.

HB 4636 (Dievendorf) Juveniles: other; Juveniles: criminal procedure; Juveniles: other; late fee for juveniles; eliminate. Amends sec. 4803 of 1961 PA 236 (MCL 600.4803).

POSITION: Support.

HB 4637 (Glanville) Juveniles: other; Juveniles: criminal procedure; Juveniles: other; juvenile sentenced as adult fee; eliminate. Amends sec. 1, ch. IX of 1927 PA 175 (MCL 769.1).

POSITION: Support.

HB 4655 (Young) Criminal procedure: bail; Criminal procedure: bail; procedure for pretrial release determinations, criteria a court must consider for pretrial release determination, and reporting of data on pretrial release decisions; provide for. Amends secs. 6 & 6a, ch. V of 1927 PA 175 (MCL 765.6 & 765.6a) & adds sec. 6g to ch. V.

POSITION: Support.

(Position adopted by non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Christenson, Clement, Detzler, Easterly, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Murray, McGill, Newman, Nyamfukudza, Perkins, Potts, Quick, Reiser, Simmons, Van Dyk, Washington. Commissioner voting in opposition of the position: Walton.)

HB 4656 (Hope) Criminal procedure: bail; Criminal procedure: bail; criteria a court must consider before imposing certain conditions of release and due process hearing related to pretrial detention; provide for. Amends sec. 6b, ch. V of 1927 PA 175 (MCL 765.6b) & adds sec. 6f to ch. V.

POSITION: Support.

(Position adopted by non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Christenson, Clement, Detzler, Easterly, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Murray, McGill, Newman, Nyamfukudza, Perkins, Potts, Quick, Reiser, Simmons, Van Dyk, Washington. Commissioner voting in opposition of the position: Walton.)

HB 4662 (VanWoerkom) Criminal procedure: other; Criminal procedure: other; certain definitions in the code of criminal procedure and time period required for disposition of criminal charges; provide for. Amends sec. 1, ch. I & sec. 1, ch. VIII of 1927 PA 175 (MCL 761.1 & 768.1).

POSITION: Support.

(Position adopted by non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Christenson, Clement, Detzler, Easterly, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Murray, McGill, Newman, Nyamfukudza, Perkins, Potts, Quick, Reiser, Simmons, Van Dyk, Washington. Commissioner voting in opposition of the position: Walton.)

SB 0248 (Lauwers) Courts: other; Animals: service animals; Courts: other; age requirement for the use of a courtroom support dog; modify. Amends sec. 2163a of 1961 PA 236 (MCL 600.2163a).

POSITION: Support.

(Position adopted after non-unanimous vote. Commissioners voting in support of the position: Anderson, Bennett, Bryant, Burrell, Christenson, Clement, Cripps, Gant, Hamameh, Heath, Howlett, Larsen, Low, Mantese, Mason, Murray, Newman, Quick, Reiser, Simmons, Simpson, Walton, Washington. Commissioner voting in opposition of the position: Bilowus, Easterly, McGill, Ohanesian, Potts.)

SB 0257 (Runestad) Civil procedure: other; Courts: other; Civil procedure: other; video recordings of court proceedings; provide for availability and review. Amends 1961 PA 236 (MCL 600.101 - 600.9947) by adding sec. 1429.

POSITION: Oppose. The Board strongly supports courtroom transparency but believes that this issue is properly addressed by the court, not the Legislature. SBM stands ready to partner with the court to develop an appropriate, uniform rule governing access to court recordings.

IN THE HALL OF JUSTICE

Proposed Amendment of Rule 1.8 of the Michigan Rules of Professional Conduct (ADM File No. 2020-31) – Conflict of Interest; Prohibited Transactions (See Michigan Bar Journal May 2023, p 55).

STATUS: Comment period expires July 1, 2023; public hearing to be scheduled.

POSITION: Support the proposed amendment to MPRC 1.8 in concept, but not as currently drafted. SBM supports its humanitarian exception proposal as submitted to the Court previously.

Proposed Amendment of the Michigan Rules of Evidence (ADM File No. 2021-10) – Scope; Definitions; Purpose; Rules on Evidence; Preliminary Questions; Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes; Remainder of or Related Writings or Recorded Statements; Judicial Notice of Adjudicative Facts; Judicial Notice of Law; Presumptions in Civil Cases; Presumptions in Criminal Cases; Test for “Relevant Evidence”; General Admissibility of Relevant Evidence; Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons; Character Evidence; Other Crimes, Wrongs, or Acts; Methods of Proving Character; Habit; Routine Practice; Subsequent Remedial Measures; Compromise Offers & Negotiations; Offers to Pay Medical and Similar Expenses; Pleas, Plea Discussions, and Related Statements; Liability Insurance; Privilege in General; Competency to Testify in General; Need for Personal Knowledge; Oath or Affirmation to Testify Truthfully; Interpreters; Judge’s Competency as a Witness; Juror’s Competency as a Witness; Who May Impeach a Witness; A Witness’s Character for Truthfulness or Untruthfulness; Impeachment by Evidence of a Criminal Conviction; Religious Beliefs or Opinions; Mode and Order of Examining Witnesses and Presenting Evidence; Writing or Object Used to Refresh a Witness; Witness’s Prior Statements; Court’s Calling or Examining Witness; Excluding Witnesses; Opinion Testimony by Lay Witnesses; Testimony by Expert Witnesses; Bases of an Expert; Opinion on an Ultimate Issue; Disclosing the Facts or Data Underlying an Expert’s Opinion; Court-Appointed Expert Witnesses; Use of Learned Treatises for Impeachment; Definitions That Apply to Rules 801-807; Exclusion from Hearsay; The Rule Against Hearsay; Exceptions to the Rule Against Hearsay; Hearsay Exception; Child’s Statement About a Sexual Act; Exceptions to the Rule Against Hearsay – When the Declarant is Unavailable as a Witness; Hearsay within Hearsay; Attaching and Supporting the Declarant; Residual Exception; Authenticating or Identifying Evidence; Evidence That Is Self-Authenticating; Subscribing Witness; Definitions That Apply to Rules 1001-1008; Requirement of the Original; Admissibility of Duplicates; Admissibility of Other Evidence of Content; Copies of Public Records to Prove Content; Summaries to Prove Content; Testimony or State of a Party to Prove Content; Functions of the Court and Jury; Applicability of the Rules; Title (See Michigan Bar Journal May 2023, p 52).

STATUS: Comment period expires July 1, 2023; public hearing to be scheduled.

POSITION: Support the amendments of the Michigan Rules of Evidence with a recommendation that the Court add language stating explicitly that the amendments are stylistic, not substantive, changes; and further recommend that the Court reestablish a Standing Committee on Rules of Evidence.

Amendments of Rules 6.001 and 8.119 and Addition of Rule 6.451 of the Michigan Court Rules (ADM File No. 2023-06) – Scope; Applicability of Civil Rules; Superseded Rules and Statutes; Court Records and Reports; Duties of Clerks; Reinstatement of Convictions Set Aside Without Application (See Michigan Bar Journal May 2023, p 56).

STATUS: Comment period expires July 1, 2023; public hearing to be scheduled.

POSITION: Support.

Proposed Amendments of Rules 6.110 and 8.119 (ADM File No. 2023-06) – The Preliminary Examination; Court Records and Reports; Duties of Clerks (See Michigan Bar Journal May 2023, p 58).

STATUS: Comment period expires July 1, 2023; public hearing to be scheduled.

POSITION: Support the proposed amendments to Rule 6.110 and oppose the proposed amendments to Rule 8.119; recommends that the amendment to Rule 8.119 should be rewritten more narrowly for the purpose of ensuring that the public cannot access case records held by district courts related to convictions that have been subsequently set aside, and not in a manner that encompasses all district court case records.