Judge Hoort---the assessment of costs.

I obviously cannot speak for other judges, but . . .

The Michigan Supreme Court is requiring an increased effort to collect monies owed in criminal cases, leading to the question what are allowable court costs in a criminal case.  

According to a Memorandum from the State Court Administrator Office, costs are limited to expenses specifically incurred in prosecuting the defendant, providing legal assistance to the defendant, and (in probation cases) supervising the probationer. For costs to be assessed, the costs must bear some direct relation to actual costs incurred in prosecution, and cannot include the costs of the day-to-day functions of the prosecutor, law enforcement, or other governmental unit, even if the functions resulted in arrest and prosecution. People v Barber, 14 Mich App 395 (1968), Saginaw Public Libraries v Judges of the 70th District Court, 118 Mich App 379 (1982).  It would thereby seem that costs can be assessed in a criminal case, as follows:

1. State cost; crime victim rights fee.
2. The expenses of providing legal assistance to the defendant.
3. Any assessment authorized by law.
4. Any costs incurred in compelling the defendant’s appearance.
5. Costs of emergency response and prosecution. 
6. As a condition of probation. If the court requires the probationer to pay costs under MCL 771.3(2), the costs must be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.
7. MCL 769.1k allows the court to impose any cost in addition to the minimum state cost. 

Statutory allowed costs:

State Costs ($68.00); Crime Victim Rights fee ($130.00); Prosecutor’s OWI fee; Probation Oversight fee.

Additional possible costs:

Attorney fees; witness subpoenas; Cost to supply discovery.  (e.g. copy cost, postage); Cost of transcript(s) requested by the defense; Cost for drug test; Actual or estimated cost bearing some direct relation to the actual costs incurred in compelling defendant’s appearance. (e.g. writs, extradition); Actual or estimated cost bearing some direct relation to the actual cost related to an adjournment caused by the defendant; Actual or estimated cost bearing some direct relation to the actual cost caused by the defendant over and above the already existing day-to-day cost for the prosecutor.

What then does this mean?

Procedure for Additional possible costs in my courtroom:

A. Defense expert witness fees will be ordered and added by the court to the amount owed when the bill is received and approved by the court.

B. The People will be responsible for submitting any request at the time of sentencing for costs for prosecution, to-wit: witness subpoenas; cost to supply discovery; adjournment related costs; actual or estimated cost bearing some direct relation to the actual cost for transportation, extradition; and any additional actual or estimated cost bearing some direct relation to the actual cost caused by the defendant over and above the already existing day-to-day cost for the prosecutor.  In the absence of any request for actual costs, the cost for an adjournment caused solely by the defense will be $100.00; the costs of transportation from another county will be $100.00.

C. Probation will be responsible for reporting in the PSI the cost of any Preliminary Exam transcripts requested by the defense; drug tests; attorney fees. In the absence of a request for actual costs, the cost for Attorney fees continues to be $400 for a plea, $1,000 for one day of trial, $500 per day thereafter; cost for drug tests is $25.

Representing your self in court.

I cannot speak for other judges, but the following information may be helpful for persons representing themselves in court.

---------------------

People do have a constitutional right to proceed in propria persona in the courts of this state. Const 1963, art 1, § 13.  However, individuals who represent themselves in Michigan's courts are held to the same standards as members of the state bar. Baird v Baird, 368 Mich 536, 539 (1962).  The Court can not overlook a party's tactical errors or consider documentary evidence that was not submitted to the trial court merely because a party acted in propria persona. Amorello v Monsanto Corp, 186 Mich App 324 (1990).

Judges, clerks and court house staff cannot provide legal advice. Do not ask court employees for legal advice. If you want legal advice, talk to an attorney or consult the Michigan Court Rules and Michigan laws. Court employees are allowed to provide procedural information only.

On the day of your hearing arrive at the assigned judge's courtroom early to allow time for courthouse security measures. Be prepared to spend most of the morning or afternoon in court. Your case may be heard immediately or you may have to wait for other cases to be heard.  Bring with you any documents, records, photographs, audio and/or visual recordings related to your case. Witnesses are generally required if you wish to present evidence to the court.  Subpoenas are available if you need a court order to compel a witness to appear in court.  Without evidence you can loose even if you’re right.

Let the judge’s staff know before the hearing if 1) you need an adjournment because of witness problems or you wish to have an attorney with you or 2) you need an interpreter because you are unable to communicate in English or 3) you are hearing impaired.

Only one person at a time may speak during a court proceeding. This ensures greater accuracy in making a record by our audio recording equipment.  When speaking, talk to the witness or the court, not the opposing party, either from your table or the podium. Stepping away from the microphones reduces the accuracy of the record.  Be respectful of the judge, court staff, attorneys, witnesses and other parties.

Do not interrupt when someone else is talking. Do not talk and stop talking when the judge is talking. The judge will try to give both sides a full opportunity to be heard, but you need to wait your turn.  The judge does get to interrupt you if what you are saying is irrelevant or not material to the issues before the court. 

Please remember that hearsay is generally inadmissible.  Unless there is an exception under the Rules of Evidence, you can tell the judge anything you actually heard the other party say that is relevant to the case, but you can’t tell the judge what somebody else has said even if that other person is a doctor, lawyer, police officer, family member or friend.  You need to have that person appear in court as a witness.  Likewise, police reports, lab reports, medical reports, affidavits, letters are hearsay and not admissible unless there is an exception to the hearsay rule. 

The right to proceed in propria persona.

In Kreis  v Bedford, Unpublished Opinion in the Court of Appeals, (issued 11/10/2011, No. 300183) plaintiff argued that because she acted in propria persona, she should not have been expected to strictly comply with the provisions of the court rules concerning motion practice and motions for summary disposition. She also suggests that the circuit court should have informed her how to conduct discovery and how to properly oppose plaintiff's motion for summary disposition. She claims that she had an absolute right to proceed in propria persona, and that by holding her to the same exacting standards as a practicing lawyer, the circuit court effectively interfered with her right to procedural due process. The Court of Appeals did not agree.

Without question, litigants have a constitutionally guaranteed right to proceed in propria persona in the courts of this state. Const 1963, art 1, § 13; see also Shenkman v Bragman, 261 Mich App 412, 416 (2004).  However, it is well settled that individuals who represent themselves in Michigan's courts are held to the same standards as members of the state bar. Baird v Baird, 368 Mich 536, 539 (1962); Totman v Royal Oak School Dist, 135 Mich App 121, 126 (1984). The Court will not overlook a party's tactical errors or consider documentary evidence that was not submitted to the trial court merely because a party acted in propria persona. Amorello v Monsanto Corp, 186 Mich App 324 (1990); Bachor v Detroit, 49 Mich App 507, 512 (1973). When a litigant elects to proceed without counsel, the litigant is "bound by the burdens that accompany such election." Hoven v Hoven, 9 Mich App 168, 174 (1967).

Costs in a criminal case.

            In People v Dilworth, 291 Mich App 399 (2011) the Court of Appeals remanded to the trial court to set forth the basis for the costs assessed against the defendant.  A trial court must have statutory authority to order a criminal defendant to pay costs. People v Lloyd, 284 Mich App 703, 707 (2009).  In Dilworth neither of the statutes that defendant was convicted of violating provided any such authority, but the Legislature has the “authority to enact a general cost provision . . . .” Id. at 709 n 3.

There are several statutes under which trial courts may impose costs. MCL 771.3 authorizes a trial court to order a defendant to pay costs as a condition of probation; specifically, it authorizes the assessment of costs “incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.” (Emphasis added.) See People v Brown, 279 Mich App 116, 138-139 (2008). Under MCL 769.1k(1)(b)(iii), a trial court may order the defendant to pay “[t]he expenses of providing legal assistance to the defendant.” And under MCL 769.34(6), a trial court may order costs as part of the sentence.

Because the Legislature has set forth specific circumstances under which trial courts may impose costs, a trial court generally has the discretionary authority to order a criminal defendant to pay the costs of prosecution.  When authorized, the costs of prosecution imposed “must bear some reasonable relation to the expenses actually incurred in the prosecution.” People v Wallace, 245 Mich 310, 314 (1929). However, those costs may not include “expenditures in connection with the maintenance and functioning of governmental agencies that must be borne by the public irrespective of specific violations of the law.” People v Teasdale, 335 Mich 1, 6 (1952).

In Dilworth the prosecutor offered to provide the trial court with details of the expenses that were claimed to justify the $1,235 in costs, but that information was never placed into the record. From the transcript of the proceedings that defendant may not have been afforded the opportunity to challenge those costs, and the Court of Appeals could not tell whether the costs were imposed on the basis of appropriate charges, such as expert witness fees, Brown, 279 Mich App at 139, or impermissible charges, such as the assistant prosecutor’s wages, which were set by a board of supervisors pursuant to a statute and independent of any particular defendant’s case, see MCL 49.34.

The Court of Appeals therefore vacated the trial court’s order imposing the costs of prosecution, and remanded the matter to the trial court to make a record of what the costs were, determine whether ordering defendant to pay them was permissible, and, if appropriate, impose or deny them.

Ineffective assistance of defendant’s trial counsel.

In People v Armstrong, __ Mich __ (#142762, 10/26/2011) the ineffective assistance of defendant’s trial counsel in failing to seek the introduction into evidence of cell phone records that would have undermined the complainant’s credibility prejudiced defendant, thereby entitling him to a new trial.

A defendant must meet two requirements to warrant a new trial because of the ineffective assistance of trial counsel. First, the defendant must show that counsel’s performance fell below an objective standard of reasonableness. In doing so, the defendant must overcome the strong presumption that counsel’s assistance constituted sound trial strategy. Second, the defendant must show that, but for counsel’s deficient performance, a different result would have been reasonably probable.

It did make a difference whether the jury saw the cell phone records since it heard their contents read into evidence by the complainant. The complainant acknowledged only a fraction of the numerous communications revealed in the cell phone records. Further, according to the trial court’s instruction, the jury was to disregard the cell phone records because they had not been properly admitted. We presume that a jury follows its instructions. Moreover, even assuming that the jury considered the portion of the cell phone records read into evidence, the jury also heard from the prosecution that defendant or defense counsel might have fabricated the records. We disagree with the Court of Appeals that instructing the jury that the attorneys’ statements and arguments are not evidence cured such a significant and damning accusation.  The failure of defendant’s trial counsel to pursue the introduction of the cell phone records into evidence not only fell below an objective standard of reasonableness, but also prejudiced defendant.

A certificate of mailing to prove notice may be testimonial.

In People v Nunley, __ Mich App __ (#302181, 10/13/2011) defendant was charged with DWLS and challenged the certificate of mailing by the Secretary of State as being testimonial.  The Court of Appeals held that even if the certificate of mailing was prepared in the regular course of the Secretary of State’s business, the certificate of mailing is testimonial because it will be used for the purpose of proving or establishing some fact at trial.

The Confrontation Clause of the United States Constitution provides, “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with all witnesses against him . . . .” US Const, Am VI. The Michigan Constitution provides the same guarantee for criminal defendants. Const 1963, art 1, § 20; Dinardo, ___ Mich App at ___. Testimonial statements of witnesses absent from trial are admissible only when the original declarant is unavailable and the defendant has had a prior opportunity to cross-examine that declarant. Michigan v Bryant, ___ US ___ (2011); Crawford v Washington, 541 US 36, 54, 68; 124 S Ct 1354; 158 L Ed 2d 177 (2004). Ordinarily, whether a statement is testimonial depends on whether it constitutes a “‘declaration or affirmation made for the purpose of proving some fact.’” Crawford, 541 US at 51 (citation omitted). This Court has explained that “[s]tatements are testimonial where the ‘primary purpose’ of the statements or the questioning that elicits them ‘is to establish or prove past events potentially relevant to later criminal prosecution.’” Dinardo, ___ Mich App at ___, quoting People v Lewis (On Remand), 287 Mich App 356 (2010), quoting Davis v Washington, 547 US 813, 822 (2006). If a statement is nontestimonial, then “the Confrontation Clause does not restrict state law from determining admissibility.” People v Garland, 286 Mich App 1 (2009), citing Crawford, 541 US at 68.

In Melendez-Diaz v Massachusetts, ___ US ___; 129 S Ct 2527 (2009) the United States Supreme Court held that the “certificates of analysis” including forensic analysis results for seized controlled substances constituted testimonial statements barred by the Confrontation Clause. Melendez-Diaz, 129 S Ct at 2531-2532. The Melendez-Diaz Court observed that the “certificates” were made under circumstances which would lead an objective person to reasonably believe that the statement would be available for use at trial and that under Massachusetts law their sole purpose was to provide prima facie evidence regarding the analyzed substance. Id., quoting Crawford, 541 US at 52 and Mass Gen Laws, ch 111, § 13. The Court concluded that the analysts who created the “certificates” were witnesses for purposes of the Confrontation Clause and defendants had the right to be “confronted” by them at trial, absent a showing that the analyst was unavailable to testify and defendant had a prior opportunity for cross examination.

In order to convict defendant of DWLS, the prosecutor must prove that defendant’s license had been suspended and that he has been notified of the suspension as provided in MCL 257.212. Like the lab analyst report at issue in Melendez-Diaz, the certificate of mailing here is offered to prove a fact in question. Melendez-Diaz, 129 S Ct at 2532, quoting Crawford, 541 US at 51. Indeed, the certificate of mailing here is offered to prove an element of the offense—proof of the notification required by the plain language of MCL 257.904(1).  Furthermore, in light of the fact that notification is an element of the offense, certainly the certificate of mailing was “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” Id., quoting Crawford, 541 US at 52.  The Secretary of State representative who created the “certificate” was a witness for purposes of the Confrontation Clause and defendant had the right to be “confronted” by him at trial, absent a showing that he was unavailable to testify and defendant had a prior opportunity for cross examination.

Ineffective assistance of counsel.

In People v Gioglio, __ Mich __ (#143136, 9/21/2011) the Michigan Supreme Court reiterated that when claims of ineffective assistance present a mixed issue of fact and constitutional law, the trial court must first determine the facts and then decide whether those facts demonstrate a violation of the defendant’s constitutional right to the assistance of counsel. People v Lewis (On Remand), 287 Mich App 356 (2010). “When a defendant asserts that his assigned lawyer is not adequate or diligent . . . the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.” People v Ginther, 390 Mich 436 (1973).  A trial court’s factual findings are reviewed for clear error and its ultimate determination de novo. People v Petri, 279 Mich App 407 (2008).).

If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance. Id. at 657 n 21, citing Jones v Barnes, 463 US 745 (1983) and Morris v Slappy, 461 US 1 (1983).  In People v Frazier, 478 Mich 231 (2007), the Michigan Supreme Court clarified how to apply the Cronic/Strickland standards: “[t]he Cronic test applies when the attorney's failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.”  In Frazier, the Supreme Court refused to apply Cronic and presume prejudice when the defense counsel advised defendant to waive his right to counsel at the police interrogation and failed to attend the interrogation with the defendant. Id. at 244-245.

In this case, because counsel’s failure to test the prosecution’s case was not complete, the analysis is under the Strickland ineffective assistance of counsel test. The right to effective counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; Strickland, 466 US 686. To establish ineffective assistance of counsel, defendant must show that: (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different, and (3) the resultant proceedings were fundamentally unfair or unreliable. People v Toma, 462 Mich 281, 302 (2000); People v Pickens, 446 Mich 298 (1994). Unlike Cronic, the Strickland test addresses specific errors made by counsel, requiring defendant to show that not only was counsel’s performance deficient but also that the defective performance was prejudicial. Strickland, 466 US at 6; Mitchell, 454 Mich at 157. 

Effective assistance of counsel is presumed and defendant bears a heavy burden of proving otherwise. Rockey, 237 Mich App at 76. Defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy. People v Riley (After Remand), 468 Mich 135, 140 (2003). Decisions as to when to make an opening statement, what evidence to present, whether to call or question witnesses, and on what to focus in closing argument are presumed to be matters of trial strategy, People v Horn, 279 Mich App 31 (2008); People v Dixon, 263 Mich App 393 (2004), and declining to raise objections to procedures, evidence, or argument can also be sound trial strategy, People v Unger, 278 Mich App 210 (2008). “This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251 (2001).

Requests for Attorney fees in domestic relations cases, and maybe otherwise.

In Bowers v Bowers, Unpub per curiam opinion, (9/20/2011, #298268) the Court of Appeals addressed requests for attorney fees in a domestic relations matter.  I am considering requiring a separate (evidentiary) hearing to address any request for attorney fees.

In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13, and court rule, MCR 3.206(C).” Reed v Reed, 265 Mich App 131, (2005). MCR 3.206(C) provides: (1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

MCL 552.13(1), authorizes as follows the imposition of fees and costs in divorce actions: In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.  In addition, this Court has held that attorney fees are “authorized when the party requesting payment of the fees has been forced to incur them as a result of the other party’s unreasonable conduct in the course of litigation.” Stackhouse v Stackhouse, 193 Mich App 437, 445 (1992); Milligan v Milligan, 197 Mich App 665, 671 (1992). “[T]he attorney fees awarded must have been incurred because of misconduct.” Reed, 265 Mich App at 165.

When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services. Miller v Meijer, Inc, 219 Mich App 476, 479-480 (1996); Petterman v Haverhill Farms, Inc,125 Mich App 30, 33 (1983).

The Supreme Court in Smith v Khouri, 481 Mich 519 (2008) set forth a process for how a court should determine the reasonableness of requested attorney fees. The Smith Court first noted that the party requesting fees bears “the burden of proving the reasonableness of the requested fees.” Smith, 481 Mich at 528–529. The trial court should “consider the totality of special circumstances,” applying as appropriate the six factors listed in Wood v Detroit Auto Inter–Ins Exch, 413 Mich 573, 588 (1982), and the eight factors listed in Michigan Rules of Professional Conduct (MRPC) Rule 1.5(a). The factors overlap and include “the professional standing and experience of the attorney,” “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,” and “the expenses incurred.” Id. at 529–530, quoting Wood, 413 Mich at 588, MRPC 1.5(a).  The Smith Court held that, in determining whether requested attorney fees are reasonable, the trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services.... In determining this number, the court should use reliable surveys or other credible evidence of the legal market. This number should be multiplied by the reasonable number of hours expended in the case.... The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee.... [Id. at 530–531.]  The Court “emphasize[d]” that “‘the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’” Id. at 531, quoting Blum v Stenson, 465 US 886, 895 n 11 (1984). This “satisfactory evidence” of customary fees “can be established by testimony or empirical data found in surveys and other reliable reports.” Id. at 531–532. Mere “anecdotal statements” are not sufficient. Id. at 532.

To determine “the reasonable number of hours expended in the case,” the attorney requesting fees “must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness.” Id. The burden of establishing the reasonableness of the hours reported lies with the attorney requesting fees. If the other party raises a factual dispute regarding the reasonableness of the hourly rates or the hours billed, “the party opposing the fee request is entitled to an evidentiary hearing to challenge” the evidence submitted by the attorney requesting fees and to present contrary evidence. Id. Only after the trial court has determined a reasonable fee by multiplying the reasonable hourly rate by a reasonable number of hours billed, should the court “consider the other factors and determine whether they support an increase or decrease in the base number.” Id. at 533.

Judge Hoort sentencings

As a starting point, my ‘norm’ is to impose five years probation if the guidelines allow for a prison sentence, and the person is not going to prison.  If the guidelines are in the x to 17 range, four years probation may be appropriate.  If the guidelines are in the x to 11 range, three years probation may be appropriate.  Two years probation seems appropriate for the significantly less than one year range offender (i.e. x to 9); and one year probation would seem to be appropriate for defendants who really don't have any issues to address on probation; or possibly no probation.  I sometimes use the possible maximum sentence plus the sentence guidelines as a reference point whether somebody should even be on probation.  Unless there are substance abuse, assaultive or sexual conduct issues ‘requiring’ probation, a low sentence guidelines and/or low possible maximum sentence may be a sufficient indicator that probation is not appropriate.

Unless there is significant restitution, I don’t necessarily need to put somebody on probation or have probation extended to collect restitution.  We have pretty good collections programs otherwise in both counties.

I do not like to ‘warehouse’ a defendant in jail for one year.  If probation is imposed that means saving approximately two months jail for sanctions.  Otherwise, if it’s going to be a one year incarceration, my preference is the prison sentence.  Especially now that there are re-entry programs available to parolees and often in excess of what we can offer via probation.

If probation, and there are non-marijuana substance abuse issues I generally require NA meetings at a minimum of 2 or 3 times per week and random drug testing at a minimum of 2 or 3 times per week as directed by the field agent.  If its marijuana, random drug testing two times per month.

I am more and more requiring in all my probationary terms a curfew whereby defendant must be in his/her approved residence between the hours of 11 p.m. and 6 a.m. unless excused by first obtaining written permission from the field agent.  (And I’m wondering if it should start at 10 p.m.) and that a probationer cannot use or possess without a court order any controlled substance or substance for hallucinatory purposes or drug paraphernalia; or be with anyone you know to use or possess these items.  If a medical marijuana exception is actually medically appropriate (and we do have two or three such cases), my ‘norm’ is to require the same to be in tablet form.

I do like to use SCRAM and/or tether as a means of keeping a probationer on the ‘straight and narrow’.

I do not like to do community service if there is any chance the probationer may take advantage of an innocent third party. 

I generally do not mind giving a defendant the benefit of HYTA, 7411 or DSA if through no fault of their own, defendant was not able to comply with all of the terms of probation.  This does require a good faith effort by the defendant to comply with all required terms.  Many times the issue is non-payment.  Unless payment was a 'mandatory requirement' (which I sometimes do), the above rule applies.  What happens then is that if the defendant, through no fault of their own, has made a good faith effort, but been unable to pay off all of the monies owed, s/he will receive a satisfactory discharge, but the case will not be actually dismissed until all monies are paid.

I generally don’t allow a defendant to do community service in lieu of payment unless they are in the

Mental Health Court

.  I do sometimes also make an exception if so convinced by the assigned probation officer.  My philosophy is that if a person can do community service, he/she can also work.  It might be odd jobs or menial labor, but then that is also maybe an appropriate consequence for their actions.

I generally do not allow for an early release from jail except as recommended by the PSI writer or if by sentence agreement, but sometimes to make an exception for my MHC probationers.  The idea being what is in the best interest of this person with mental health issues and what is necessary or appropriate for the protection of the community.

As a general rule before I allow for an early discharge from probation for an offense involving CSC or a crime of violence, I would ask that the victim and prosecutor be given an opportunity for input.

Finally, I can be wrong.

Divorce trial related rules in my court

I try to remember what it was like being a family law practioner by allowing discovery up until seven days before trial; briefs three days before trial; information from the internet; expansion of the seven day order time frame, etc. 

However, the highly contentious nature of divorce proceedings mandates other rules to help me make the right decision.  i.e. If there is going to be a trial, I do have some very specific rules in my scheduling order . . .

If there are more than ten items of disputed property, the parties shall prepare a joint list of disputed property, with any agreed upon values and encumbrances, for entry as court Exhibit #1.  If there is more than ten items of unsecured debt to be divided, the parties shall prepare a joint list of unencumbered debt to be divided, with any agreed upon dollar amount owed, for entry as Court Exhibit #2.

Non-compliance with requested discovery of exhibits or witnesses by this date shall bar introduction of said exhibits or witnesses at trial.

Three (3) days before trial the parties shall file with the judge’s office and opposing party a brief covering all issues to be decided; applicable law; statements to be introduced under MRE 803(24); Court Exhibits (if applicable) and proposed division of property and debt, with proposed findings of fact regarding their assets and incomes, including mathematical calculations.  Exhibits shall be attached to the Judge’s copy and the opposing party’s brief but, to avoid identity theft, shall not be filed with the court.

----------------------

This type of procedural requirements were recently upheld in Engerman v Engerman, unpublished opinion per curiam of the Court of Appeals, issued [7/7/2011] (Docket No. 295687).  In Engerman the Court of Appeals remanded to the circuit court to make specific findings of fact regarding the value of the financial accounts encompassed in the property division.  In do so the Court recommended the trial court order: “both parties to prepare detailed proposed findings of fact regarding their assets and incomes, including mathematical calculations.”

Finally, please remember that non-compliance can result in loss of evidence, costs being assessed, adjournment of the trial or other delay.

Government Liability for its employees under respondeat superior.

In Hamed v Wayne County and Wayne County Sheriff’s Department, __ Mich __ (#139505, 7/27/2011) the Michigan Supreme Court considered the scope of an employer’s vicarious liability for quid pro quo sexual harassment affecting public services under Michigan’s Civil Rights Act (CRA).     In Hamed, the Supreme Court held that Wayne County and its sheriff’s department may not be held vicariously liable for a civil rights claim under MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working hours but plainly beyond the scope of his employment under traditional principles of respondeat superior.

The doctrine of respondeat superior is well established in this state: An employer is generally liable for the torts its employees commit within the scope of their employment.  It follows that “an employer is not liable for the torts . . . committed by an employee when those torts are beyond the scope of the employer’s business.”  This Court has defined “within the scope of employment” to mean “‘engaged in the service of his master, or while about his master’s business.’” Independent action, intended solely to further the employee’s individual interests, cannot be fairly characterized as falling within the scope of employment.  Although an act may be contrary to an employer’s instructions, liability will nonetheless attach if the employee accomplished the act in furtherance, or the interest, of the employer’s business.

The general rule that an employer is not liable for acts of its employee outside the scope of its business, however, does not preclude vicarious liability in every instance.  This Court has consistently recognized that an employer can be held liable for its employee’s conduct if “the employer ‘knew or should have known of [the] employee’s propensities and criminal record’” before that employee committed an intentional tort.  This inquiry involves an analysis of whether an employer had (1) actual or constructive knowledge of prior similar conduct and (2) actual or constructive knowledge of the employee’s propensity to act in accordance with that conduct. Under this two-pronged approach, the conduct at issue may be so close in time to prior similar conduct that knowledge under the first prong gives rise to a valid inference that the conduct was foreseeable under the second prong. Conversely, if an employee’s actions were temporally distant and the employee’s recent record suggested a change in character, foreseeability would not be established.  

In summary, an employer’s liability for the criminal acts of its employees is limited to those acts it can reasonably foresee or reasonably should have foreseen.

Juvenile sentencing hearing.

A juvenile sentencing hearing is required under MCR 6.931 except when an adult sentence is mandatory because the juvenile has been convicted of an offense listed in MCL 769.1(1)(a)-(l).

MCL 769.1(3) provides that unless a juvenile is required to be sentenced in the same manner as an adult the court shall conduct a hearing at the juvenile’s sentencing to determine if the best interests of the public would be served by placing the juvenile on probation and committing the juvenile to an institution or agency described in the youth rehabilitation services act, . . . or by imposing any other sentence provided by law for an adult offender. Except as provided in subsection (5), the court shall sentence the juvenile in the same manner as an adult unless the court determines by a preponderance of the evidence that the interests of the public would be best served by placing the juvenile on probation and committing the juvenile to an institution or agency described in the youth rehabilitation services act . . . .

Under MCR 6.931(C) if a juvenile sentencing hearing is required, the judge must advise the prosecuting attorney, the juvenile, and the attorney for the juvenile on the record immediately following conviction of the juvenile by a guilty plea or verdict of guilty that a hearing will be conducted at sentencing to determine whether to sentence the juvenile as an adult or to place the juvenile on juvenile probation and commit the juvenile to state wardship as though a delinquent. . . .

There is nothing in the statute or court rule that makes an exception for a juvenile who has pleaded guilty as part of a sentencing agreement.

Homeless registration under the SORA

In People v Dowdy, __ Mich __ (#140603, 7/11/2011) the Michigan Supreme Court held that homelessness is not a bar to compliance with the Sex Offender Registration Act (SORA) because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender’s residence or domicile. 

The SORA is a conviction-based registration statute that requires individuals convicted of certain “listed offenses” to register as sex offenders.  An offender’s registration disclosure includes information regarding where the offender lives, identifying information, and a summary of the offender’s convictions. Offenders are also required to sign a form acknowledging their obligations as sex offenders under SORA.

The SORA defines “residence” for “registration and voting purposes” as that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a wife has a residence separate from that of the husband, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act.  Thus, a person’s “residence” under SORA is a combination of three things: that place where a person (1) habitually sleeps, (2) keeps personal effects, and (3) has a regular place of lodging.

It is entirely consistent with the SORA for a sex offender to identify, for example, a vacant house or a park as a “residence” if it is, in fact, “that place at which” the sex offender “habitually sleeps, keeps his or her personal effects, and has a regular place of lodging.”

Unlike “residence,” “domicile” is not defined in SORA. Although this Court has, in several circumstances, treated the terms “residence” and “domicile” as synonymous, the terms were accorded different meanings under the common law.  Michigan courts have defined domicile” as “‘that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.’” Similarly, a domicile is “the place where a person has his home, with no present intention of removing, and to which he intends to return after going elsewhere for a longer or shorter time.” More significant to the instant case is that it has long been the law of this state that “[e]very person must have a domicile somewhere.” A person may have only one domicile, which continues until the person acquires a different one.

Even if a homeless sex offender with transient sleeping arrangements cannot establish a “residence” as SORA defines it, the offender is still capable of reporting sufficient information regarding where the offender lives for purposes of identifying a “domicile.” Although it may be difficult to verify where an offender is domiciled, as noted, difficulties in verifying an offender’s information do not excuse the offender from complying with SORA’s requirements.  Moreover, SORA enables the Michigan State Police to respond to such situations by empowering it to “specify other satisfactory proof of domicile or residence.” Indeed, the Michigan State Police has exercised this

statutory authority by promulgating an order that permits homeless sex offenders to register their domicile as “123 Homeless.” An offender thus satisfies the offender’s statutory obligation by appearing at a law enforcement agency and advising the authorities of where the offender lives. Pursuant to SORA and the Michigan State Police order, the law enforcement agency can accept as “satisfactory proof” of the offender’s “domicile” the state, city, zip code, and county in which the offender lives and must add that information to the “123 Homeless” designation in the registry. Thus, when the homeless sex offender’s “domicile” is registered as “123 Homeless” in the city in which the offender lives, that is the offender’s statutory domicile for purposes of SORA.

MSC amendment of Court Rules pertaining to Jury trials effective 9.1.2011

Rule 2.512 Instructions to Jury

(A) Request for Instructions.

(1) At a time the court reasonably directs, the parties must file written requests that the court instruct the jury on the law as stated in the requests. In the absence of a direction from the court, a party may file a written request for jury instructions at or before the close of the evidence.

(2) In addition to requests for instructions submitted under subrule (A)(1), after the close of the evidence, each party shall submit in writing to the court a statement of the issues and may submit the party’s theory of the case regarding each issue. The statement must be concise, be narrative in form, and set forth as issues only those disputed propositions of fact that are supported by the evidence. The theory may include those claims supported

by the evidence or admitted.

(3) A copy of the requested instructions must be served on the adverse parties in accordance with MCR 2.107.

(4) The court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.

(5) The court need not give the statements of issues or theories of the case in the form submitted if the court presents to the jury the material substance of the issues and theories of each party.

(B) Instructing the Jury.

(1) At any time during the trial, the court may, with or without request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict.

(2) Before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2), that party’s theory of the case.

(C) Objections. A party may assign as error the giving of or the failure to give an instruction only if the party objects on the record before the jury retires to consider the verdict (or, in the case of instructions given after deliberations have begun, before the jury resumes deliberations), stating specifically the matter to which the party objects and the grounds for the objection. Opportunity must be given to make the objection out of the hearing of the jury.

(D) Model Civil Jury Instructions.

(1) The Committee on Model Civil Jury Instructions appointed by the Supreme Court has the authority to adopt model civil jury instructions (M Civ JI) and to amend or repeal those instructions approved by the predecessor committee. Before adopting, amending, or repealing an instruction, the committee shall publish notice of the committee’s intent, together with the text of the instruction to be adopted, or the amendment to be made, or a

reference to the instruction to be repealed, in the manner provided in MCR 1.201. The notice shall specify the time and manner for commenting on the proposal. The committee shall thereafter publish notice of its final action on the proposed change, including, if appropriate, the effective date of the adoption, amendment, or repeal. A model civil jury instruction does not have the force and effect of a court rule.

(2) Pertinent portions of the instructions approved by the Committee on Model Civil Jury Instructions or its predecessor committee must be given in each action in which jury instructions are given if (a) they are applicable, (b) they accurately state the applicable law, and (c) they are requested by a party.

(3) Whenever the committee recommends that no instruction be given on a particular matter, the court shall not give an instruction unless it specifically finds for reasons stated on the record that (a) the instruction is necessary to state the applicable law accurately, and (b) the matter is not adequately covered by other pertinent model civil jury instructions.

(4) This subrule does not limit the power of the court to give additional instructions on applicable law not covered by the model instructions.  Additional instructions, when given, must be patterned as nearly as practicable after the style of the model instructions and must be concise, understandable, conversational, unslanted, and nonargumentative.

Rule 2.513 Conduct of Jury Trial View

(A) Preliminary Instructions. After the jury is sworn and before evidence is taken, the court shall provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case. Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence. The jury also shall be instructed about the elements of all civil claims or all charged offenses, as well as the legal presumptions and burdens of proof.  The court shall provide each juror with a copy of such instructions. MCR 2.512(D)(2) does not apply to such preliminary instructions. By Jury. On motion of either party or on its own initiative, the court may order an officer to take the jury as a whole to view property or a place where a material event occurred. During the view, no person other than the officer designated by the court may speak to the jury concerning a subject connected with the trial. The court may order the party requesting a jury view to pay the expenses of the view.

(B) Court’s Responsibility. The trial court must control the proceedings during trial, limit the evidence and arguments to relevant and proper matters, and take appropriate steps to ensure that the jurors will not be exposed to information or influences that might affect their ability to render an impartial verdict on the evidence presented in court. The court may not communicate with the jury or any juror pertaining to the case without notifying the parties and permitting them to be present. The court must ensure that all communications pertaining to the case between the court and the jury or any juror are made a part of the record.  By Court. On application of either party or on its own initiative, the court sitting as trier of fact without a jury may view property or a place where a material event occurred.

(C) Opening Statements. Unless the parties and the court agree otherwise, the plaintiff or the prosecutor, before presenting evidence, must make a full and fair statement of the case and the facts the plaintiff or the prosecutor intends to prove.  Immediately thereafter, or immediately before presenting evidence, the defendant may make a similar statement. The court may impose reasonable time limits on the opening statements.

(D) Interim Commentary. Each party may, in the court’s discretion, present interim commentary at appropriate junctures of the trial.

(E) Reference Documents. The court may authorize or require counsel in civil and criminal cases to provide the jurors with a reference document or notebook, the contents of which should include, but which is not limited to, a list of witnesses, relevant statutory provisions, and, in cases where the interpretation of a document is at issue, copies of the relevant document. The court and the parties may supplement the reference document during trial with copies of the preliminary jury instructions, admitted exhibits, and other admissible information to assist jurors in their deliberations.

(F) Deposition Summaries. Where it appears likely that the contents of a deposition will be read to the jury, the court should encourage the parties to prepare concise, written summaries of depositions for reading at trial in lieu of the full deposition.  Where a summary is prepared, the opposing party shall have the opportunity to object to its contents. Copies of the summaries should be provided to the jurors before they are read.

(G) Scheduling Expert Testimony. In a civil action, the court may, in its discretion, craft a procedure for the presentation of all expert testimony to assist the jurors in performing their duties. Such procedures may include, but are not limited to: (1) Scheduling the presentation of the parties’ expert witnesses sequentially; or (2) allowing the opposing experts to be present during the other’s testimony and to aid counsel in formulating questions to be asked of the testifying expert on cross-examination.

(H) Note Taking by Jurors. The court may permit the jurors to take notes regarding the evidence presented in court. If the court permits note taking, it must instruct the jurors that they need not take notes, and they should not permit note taking to interfere with their attentiveness. If the court allows jurors to take notes, jurors must be allowed to refer to their notes during deliberations, but the court must instruct the jurors to keep their notes confidential except as to other jurors during deliberations. The court shall ensure that all juror notes are collected and destroyed when the trial is concluded.

(I) Juror Questions. The court may permit the jurors to ask questions of witnesses.  If the court permits jurors to ask questions, it must employ a procedure that ensures that such questions are addressed to the witnesses by the court itself, that inappropriate questions are not asked, and that the parties have an opportunity outside the hearing of the jury to object to the questions. The court shall inform the jurors of the procedures to be followed for submitting questions to witnesses.

(J) Jury View. On motion of either party, on its own initiative, or at the request of the jury, the court may order a jury view of property or of a place where a material event occurred. The parties are entitled to be present at the jury view, provided, however, that in a criminal case, the court may preclude a defendant from attending a jury view in the interests of safety and security. During the view, no person, other than an officer designated by the court, may speak to the jury concerning the subject connected with the trial. Any such communication must be recorded in some fashion.

(K) Juror Discussion. In a civil case, after informing the jurors that they are not to decide the case until they have heard all the evidence, instructions of law, and arguments of counsel, the court may instruct the jurors that they are permitted to discuss the evidence among themselves in the jury room during trial recesses.  The jurors should be instructed that such discussions may only take place when all jurors are present and that such discussions must be clearly understood as tentative pending final presentation of all evidence, instructions, and argument.

(L) Closing Arguments. After the close of all the evidence, the parties may make closing arguments. The plaintiff or the prosecutor is entitled to make the first closing argument. If the defendant makes an argument, the plaintiff or the prosecutor may offer a rebuttal limited to the issues raised in the defendant’s argument. The court may impose reasonable time limits on the closing arguments.

(M) Summing up the Evidence. After the close of the evidence and arguments of counsel, the court may fairly and impartially sum up the evidence if it also instructs the jury that it is to determine for itself the weight of the evidence and the credit to be given to the witnesses and that jurors are not bound by the court’s summation. The court shall not comment on the credibility of witnesses or state a conclusion on the ultimate issue of fact before the jury.

(N) Final Instructions to the Jury.

(1) Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury instructions. Each party must serve a copy of the written requests on all other parties. The court must inform the parties of its proposed action on the requests before their closing arguments. After closing arguments are made or waived, the court must instruct the jury as required and appropriate, but at the discretion of the court, and on notice to the parties, the court may instruct the jury before the parties make closing arguments. After jury deliberations begin, the court may give additional instructions that are appropriate.

(2) Solicit Questions about Final Instructions. As part of the final jury instructions, the court shall advise the jury that it may submit in a sealed envelope given to the bailiff any written questions about the jury instructions that arise during deliberations. Upon concluding the final instructions, the court shall invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate.  If questions arise, the court and the parties shall convene, in the courtroom or by other agreed-upon means. The question shall be read into the record, and the attorneys shall offer comments on an appropriate response. The court may, in its discretion, provide the jury with a specific response to the jury’s question, but the court shall respond to all questions asked, even if the response consists of a directive for the jury to continue its deliberations.

(3) Copies of Final Instructions. The court shall provide a written copy of the final jury instructions to take into the jury room for deliberation. Upon request by any juror, the court may provide additional copies as necessary.  The court, in its discretion, also may provide the jury with a copy of electronically recorded instructions.

(4) Clarifying or Amplifying Final Instructions. When it appears that a deliberating jury has reached an impasse, or is otherwise in need of assistance, the court may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.

(O) Materials in the Jury Room. The court shall permit the jurors, on retiring to deliberate, to take into the jury room their notes and final instructions. The court may permit the jurors to take into the jury room the reference document, if one has been prepared, as well as any exhibits and writings admitted into evidence. 

(P) Provide Testimony or Evidence. If, after beginning deliberation, the jury requests a review of certain testimony or evidence that has not been allowed into the jury room under subrule (O), the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request.  The court may make a video or audio recording of witness testimony, or prepare an immediate transcript of such testimony, and such tape or transcript, or other testimony or evidence, may be made available to the jury for its consideration.  The court may order the jury to deliberate further without the requested review, as long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.

Rule 2.514 Rendering Verdict

(A) Majority Verdict; Stipulations Regarding Number of Jurors and Verdict. The parties may stipulate in writing or on the record that (1) the jury will consist of any number less than 6, (2) a verdict or a finding of a stated majority of the jurors will be taken as the verdict or finding of the jury, or (3) if more than 6 jurors were impaneled, all the jurors may deliberate.  Except as provided in MCR 5.740(C), in the absence of such stipulation, a verdict in a civil action tried by 6 jurors will be received when 5 jurors agree.

(B) Return; Poll.

(1) The jury must return its verdict in open court.

(2) A party may require a poll to be taken by the court asking each juror if it is his or her verdict.

(3) If the number of jurors agreeing is less than required, the jury must be sent back for further deliberation; otherwise, the verdict is complete, and the court shall discharge the jury.

(C) Discharge From Action; New Jury. The court may discharge a jury from the action:

(1) because of an accident or calamity requiring it;

(2) by consent of all the parties;

(3) whenever an adjournment or mistrial is declared;

(4) whenever the jurors have deliberated and it appears that they cannot agree.  The court may order another jury to be drawn, and the same proceedings may be had before the new jury as might have been had before the jury that was discharged.

(D) Responsibility of Officers.

(1) All court officers, including trial attorneys, must attend during the trial of an action until the verdict of the jury is announced. (2) A trial attorney may, on request, be released by the court from further attendance, or the attorney may designate an associate or other attorney to act for him or her during the deliberations of the jury.

Rule 2.515 Special Verdicts

(A) Use of Special Verdicts; Form. The court may require the jury to return a special verdict in the form of a written finding on each issue of fact, rather than a general verdict. If a special verdict is required, the court shall, in advance of argument and in the absence of the jury, advise the attorneys of this fact and, on the record or in writing, settle the form of the verdict. The court may submit to the jury: (1) written questions that may be answered categorically and briefly; (2) written forms of the several special findings that might properly be made under the pleadings and evidence; or (3) the issues by another method, and require the written findings it deems most appropriate.  The court shall give to the jury the necessary explanation and instruction concerning the matter submitted to enable the jury to make its findings on each issue.

(B) Judgment. After a special verdict is returned, the court shall enter judgment in accordance with the jury's findings.

(C) Failure to Submit Question; Waiver; Findings by Court. If the court omits from the special verdict form an issue of fact raised by the pleadings or the evidence, a party waives the right to a trial by jury of the issue omitted unless the party demands its submission to the jury before it retires for deliberations. The court may make a finding with respect to an issue omitted without a demand. If the court fails to do so, it is deemed to have made a finding in accord with the judgment on the special verdict.

Rule 2.516 Motion for Directed Verdict

A party may move for a directed verdict at the close of the evidence offered by an opponent. The motion must state specific grounds in support of the motion. If the motion is not granted, the moving party may offer evidence without having reserved the right to do so, as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury, even though all parties to the action have moved for directed verdicts.

Staff Comment: The amendments in this order reflect the Court’s approval of many of the jury reform principles tested in the Court’s two-year jury reform pilot project that ended in December 2010. Under this order, jury practices for both civil and criminal proceedings are generally incorporated in a new MCR 2.513. The Court will review the efficacy of these amendments in 2014.