This is our starting text

SB-0448, As Passed Senate, December 13, 2005

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 448

(As amended December 7, 2005)

[A bill to amend 1961 PA 236, entitled

"Revised judicature act of 1961,"

by amending sections 303d, 321, 410, 601, 810, 841, 859, 871, 1701,

8321, 8322, 8331, 8344, and 8507 (MCL 600.303d, 600.321, 600.410,

600.601, 600.810, 600.841, 600.859, 600.871, 600.1701, 600.8321,

600.8322, 600.8331, 600.8344, and 600.8507), section 303d as amended by

2004 PA 448, section 321 as amended by 2005 PA 151, section 410 as added

and sections 601 and 841 as amended by 2002 PA 678, sections 859 and 8331

as amended by 1986 PA 308, section 1701 as amended by 1987 PA 99, section

8322 as amended by 1996 PA 388, section 8344 as amended by 1992 PA 192,

and section 8507 as amended by 1994 PA 5, and by adding sections 411 and

8808; and to repeal acts and parts of acts.]

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Senate Bill No. 448 (H-2) as amended December 7, 2005 (1 of 2)

Sec. 303d. (1) To effectuate the transition from 3 districts

having a total of 24 judges to 4 districts having a total of 28

judges, the following special provisions apply:

(a) The judgeship in district 1 filled on October 13, 1993 by

an incumbent whose term expires January 1, 1995 and who is not

eligible to seek reelection shall terminate January 1, 1995 and

shall not be filled by election in 1994.

(b) To provide 7 judges in districts 3 and 4:

(i) In district 3, 4 new judgeships shall be filled by election

in 1994. The candidate receiving the highest number of votes is

elected for a term of 10 years, the candidates receiving the second

and third highest number of votes are elected for terms of 8 years

each, and the candidate receiving the fourth highest number of

votes is elected for a term of 6 years.

(ii) In district 4, 1 new judgeship shall be filled by election

in 1994. The candidate receiving the highest number of votes is

elected for a term of 6 years.

(2) A judge of the court of appeals who is elected or

appointed to a first term that begins on or after January 1, 1994

shall maintain offices only in the principal court of appeals

offices in the district in which he or she was elected or appointed

or in another office located in the ~~city~~ municipality where the

principal court of appeals facilities are located.

[Sec. 321. (1) The following fees shall be paid to the clerk of the court of appeals and may be taxed as costs where costs are allowed by order of the court:

(a) The sum of $375.00 for an appeal as of right, for an application for leave to appeal, or for an original proceeding. This fee shall be paid only once for appeals that are taken by multiple parties from the same lower court order or judgment and can be consolidated.

(b) Upon the entry of any motion except a motion described in subdivision (c) upon the motion docket, the sum of $100.00. Beginning October 1, 2007, the fee required under this subdivision is $75.00.

(c) Upon the entry of a motion for immediate consideration or a motion to expedite appeal upon the motion docket, the sum of $200.00. This fee shall be paid only once regardless of the number of lower court files involved in the appeal. A prosecuting attorney is exempt from paying a fee under this subdivision when filing a motion for immediate consideration or a motion to expedite appeal with regard to an appeal arising out of a criminal proceeding. Beginning October 1, 2007, the fee required under this subdivision is $150.00.

(2) The clerk of the court of appeals shall be allowed the sum of 50 cents per page for certified copies of entries or papers in any action or proceedings when required for any other purpose than one connected with the progress or disposition of the action or proceeding.

(3) The clerk shall charge the sum of 50 cents per page for all uncertified copies of opinions, except those sent to 1 counsel representing each party in the case, for which no charge shall be made.

(4) If a person is unable to pay the fees required by this section, the person, by motion, accompanied by the person's affidavit stating facts showing that inability, may ask the court to waive the fees and the court or a judge of the court may waive payment of the fees.

(5) Each month the clerk of the court of appeals shall deposit with the state treasurer all fees collected, securing and filing a receipt for the fees deposited.

(6) Costs shall be awarded in the discretion of the court.

~~(7) Upon appeal to the court of appeals, there shall be paid to the clerk of the trial court the sum of $10.00 as an appeal fee.~~]

Sec. 410. A plan of concurrent jurisdiction adopted under this

chapter shall not include a delegation of any of the following:

(a) A power of appointment to a public office delegated by

constitution or statute to the circuit court or a circuit judge.

(b) A power of appointment to a public office delegated by

constitution or statute to the probate court or a probate judge.

appointment to a public office delegated by constitution or statute

to the district court or a district judge.

Sec. 411. A plan of concurrent jurisdiction may provide that a

probate judge of a county described in section 810a has the

jurisdiction, powers, and duties of a district judge within that

county, including jurisdiction over small claims and civil

infraction actions and the power of appointment to a public office

delegated by constitution or statute to the district judge.

Sec. 601. (1) The circuit court has the power and

jurisdiction:

(a) Possessed by courts of record at the common law, as

altered by the state constitution of 1963, the laws of this state,

and the rules of the supreme court.

(b) Possessed by courts and judges in chancery in England on

March 1, 1847, as altered by the state constitution of 1963, the

laws of this state, and the rules of the supreme court.

(2) The circuit court has exclusive jurisdiction over

condemnation cases commenced under the drain code of 1956, 1956 PA

40, MCL 280.1 to 280.630.

(3) In a judicial circuit in which the circuit court is

affected by a plan of concurrent jurisdiction adopted under chapter

4, the circuit court has concurrent jurisdiction with the probate

court or the district court, or both, as provided in the plan of

concurrent jurisdiction, except as to the following matters:

(a) The probate court ~~shall have~~ has exclusive jurisdiction

over trust and estate matters.

(b) ~~The~~ Except as provided in section 411, the district

court ~~shall have~~ has exclusive jurisdiction over small claims and

civil infraction actions.

(4) The family division of circuit court has jurisdiction as

provided in chapter 10.

Sec. 810. Except when section 809 results in an earlier

effective date, a probate court district created under section 808

~~shall become~~ becomes effective upon the ~~date of common expiration~~

~~of the terms of the probate judges in the counties comprising the~~

~~district which~~ beginning date of the term for which an incumbent

probate judge in any county in the district no longer seeks

reelection to that office that occurs not less than 220 days after

the vote on the question. At the general election immediately

preceding that date, ~~of common expiration of terms,~~ 1 probate

judge for the district shall be elected as provided in section

808(5).

Sec. 841. (1) The probate court has jurisdiction and power as

follows:

(a) As conferred upon it under the estates and protected

individuals code, 1998 PA 386, MCL 700.1101 to 700.8102.

(b) As conferred upon it under the mental health code, 1974 PA

258, MCL 330.1001 to 330.2106.

(d) As conferred upon it under another law or compact.

(2) In a judicial circuit in which the probate court is

affected by a plan of concurrent jurisdiction adopted under chapter

4, the probate court has concurrent jurisdiction with the circuit

court or the district court, or both, as provided in the plan of

concurrent jurisdiction, except as to the following matters:

(a) The circuit court ~~shall have~~ has exclusive jurisdiction

over appeals from the district court and from administrative

agencies as authorized by law.

(b) The circuit court ~~shall have~~ has exclusive jurisdiction

and power to issue, hear, and determine prerogative and remedial

writs consistent with section 13 of article VI of the state

constitution of 1963.

to hear and decide matters within the jurisdiction of the court of

claims under chapter 64.

(d) ~~The~~ Except as provided in section 411, the district

court ~~shall have~~ has exclusive jurisdiction over small claims and

civil infraction actions.

Sec. 859. (1) The following testimony before a probate judge

shall be ~~taken by an official court reporter or by an official~~

~~court recorder on a recording device approved by the state court~~

~~administrator~~ recorded:

(a) Testimony in contested matters.

(b) Testimony in matters pertaining to the admission to a

hospital or other facility for mentally ill or developmentally

disabled persons.

contagious disease.

(d) Testimony in other matters if requested by an interested

party.

(e) Testimony and other proceedings required by supreme court

rule.

(2) In matters not governed by subsection (1), testimony

before a probate judge, probate register, or deputy probate

testimony.

(3) The ~~reporter or recorder~~ court shall keep sufficient

index of the testimony and the court shall keep the index and the

original notes for at least 10 years. The reporter or recorder need

not transcribe the testimony ~~, except when~~ unless a transcript is

ordered by the court or a party. Except in those cases in which the

testimony is transcribed and filed with the record of the case,

notes pertaining to a hearing for the admission of any person to a

hospital or other place of detention as a mentally ill or

developmentally disabled person or as a person with a contagious

disease , shall be destroyed only after the discharge of the

person from the hospital or facility.

(4) Notes may not be destroyed until after 10 years after the

date of the hearing or as provided in subsection (3), whichever is

longer.

Sec. 871. (1) In all decedents' estates in which proceedings

are instituted for probate, the probate court shall charge and

collect the following fees as an expense of administration on the

value of all assets, as of the date of death of the decedent, as

follows:

(a) In an estate of value of less than $1,000.00, $5.00 plus

1% of the amount over $500.00.

(b) In an estate of value of $1,000.00 or more, but less than

$3,000.00, $25.00.

$10,000.00, $25.00 plus 5/8 of 1% of the amount over $3,000.00.

(d) In an estate of value of $10,000.00 or more but less than

$25,000.00, $68.75 plus 1/2 of 1% of the amount over $10,000.00.

(e) In an estate of value of $25,000.00 but less than

$50,000.00, $143.75 plus 3/8 of 1% of the amount over $25,000.00.

(f) In an estate of value of $50,000.00 but less than

$100,000.00, $237.50 plus 1/4 of 1% of the amount over $50,000.00.

(g) In an estate of value of $100,000.00 to $500,000.00,

$362.50 plus 1/8 of 1% of the amount over $100,000.00.

(h) For each additional $100,000.00 value, or larger fraction

thereof, over $500,000.00, $62.50.

(i) For each additional $100,000.00 value, or larger fraction

thereof, over $1,000,000.00, $31.25.

(2) The fees in subsection (1), rounded to the whole dollar,

shall be due and payable to the probate court before the filing of

the final account or within 1 year after the commencement of

probate proceedings, whichever occurs first. A final accounting

shall not be accepted by the probate court until the fees are paid

in full and shown as part of the final accounting. An official

receipt shall be issued to the payer when the fees are collected.

Sec. 1701. The supreme court, circuit ~~courts~~ court, and all

other courts of record, have power to punish by fine or

imprisonment, or both, persons guilty of any neglect or violation

of duty or misconduct in all of the following cases:

(a) Disorderly, contemptuous, or insolent behavior, committed

during its sitting, in its immediate view and presence, and

directly tending to interrupt its proceedings or impair the respect

due to its authority.

(b) Any breach of the peace, noise, or disturbance directly

tending to interrupt its proceedings.

coroners, and all other persons in any manner ~~duly~~ elected or

appointed to perform any judicial or ministerial services, for any

misbehavior in their office or trust, or for any willful neglect or

violation of duty, for disobedience of any process of the court, or

any lawful order of the court, or any lawful order of a judge of

the court or of any officer authorized to perform the duties of the

judge.

(d) Parties to actions for putting in fictitious bail or

sureties or for any deceit or abuse of the process or proceedings

of the court.

(e) Parties to actions, attorneys, counselors, and all other

persons for the nonpayment of any sum of money which the court has

ordered to be paid. ~~, in cases where by law execution cannot be~~

~~awarded for the collection of the sum.~~

(f) Parties to actions, attorneys, counselors, and all other

persons for disobeying or refusing to comply with any order of the

court for the payment of temporary or permanent alimony or support

money or costs made in any action for divorce or separate

maintenance.

(g) Parties to actions, attorneys, counselors, and all other

persons for disobeying any lawful order, decree, or process of the

court.

(h) All persons for assuming to be and acting as officers,

attorneys, or counselors of any court without authority; for

rescuing any property or persons ~~which~~ that are in the custody of

an officer by virtue of process issued from that court; for

unlawfully detaining any witness or party to an action while he or

she is going to, remaining at, or returning from the court where

the action is pending for trial, or for any other unlawful

interference with or resistance to the process or proceedings in

any action.

(i) All persons who, having been subpoenaed to appear before

or attend, refuse or neglect to obey the subpoena, to attend, to be

sworn, or when sworn, to answer any legal and proper interrogatory

in any of the following circumstances:

(i) As a witness in any court in this state.

(ii) Any officer of a court of record who is empowered to

receive evidence.

(iii) Any commissioner appointed by any court of record to take

testimony.

(iv) Any referees or auditors appointed according to the law to

hear any cause or matter.

(v) Any notary public or other person before whom any

affidavit or deposition is to be taken.

(j) Persons summoned as jurors in any court, for improperly

conversing with any party to an action which is to be tried in that

court, or with any other person in regard to merits of the action,

or for receiving communications from any party to the action or any

other person in relation to the merits of the action without

immediately disclosing the communications to the court.

(k) All inferior magistrates, officers, and tribunals for

disobedience of any lawful order or process of a superior court, or

for proceeding in any cause or matter contrary to law after the

cause or matter has been removed from their jurisdiction.

(l) The publication of a false or grossly inaccurate report of

~~its~~ the court's proceedings, but no a court shall not punish as

a contempt the publication of true, full, and fair reports of any

trial, argument, proceedings, or decision had in the court.

(m) All other cases where attachments and proceedings as for

contempts have been usually adopted and practiced in courts of

record to enforce the civil remedies of any parties or to protect

the rights of any party.

Sec. 8321. (1) Civil process in the district court shall be

served by a sheriff, deputy sheriff or a court officer appointed by

the judges of the court for ~~such~~ that purpose, except that

officers of the department of state police or conservation officers

of the department of natural resources may serve civil process in

any action to which the state is a party and police officers of an

incorporated city or village may serve civil process in any action

to which the incorporated city or village is a party.

(2) Under rules of the supreme court, any other person may

serve any process or order of the district court ~~which~~ that does

not require the seizure, attachment, or garnishment of property or

the arrest of a person. This section ~~shall apply~~ applies

notwithstanding ~~the provisions of~~ section 1908.

Sec. 8322. (1) A person serving as a bailiff of the common

pleas court of Detroit on August 31, 1981, pursuant to an

appointment under section 23 of former ~~Act No. 260 of the Public~~

~~Acts of 1929~~ 1929 PA 260, shall become a bailiff of the district

court in the thirty-sixth district on September 1, 1981. A bailiff

shall be considered a court officer under section 8321(1) for the

exclusive purpose of serving civil process in a civil action

commenced in the district court in the thirty-sixth district,

except for process issued in a summary proceeding under chapter 57.

All process issued by the district court in civil actions shall be

rotated among the bailiffs pursuant to rules adopted by the court.

A bailiff shall file with the clerk of the court a surety bond in

the amount of $100,000.00 with a surety company. The premium on the

surety bond shall be paid by the district control unit. A bailiff

shall possess only the powers necessary to serve process issued by

the court. A bailiff governed pursuant to this subsection may bear

arms while in office and in the exercise of his or her duties as

bailiff. A bailiff shall hold office until death, retirement,

resignation, or removal from office by the court for misfeasance or

malfeasance in office. A vacancy in the office of bailiff as

established pursuant to this subsection shall not be filled.

(2) A person serving as a bailiff of the common pleas court on

August 31, 1981, pursuant to an appointment under section 31 of

former ~~Act No. 260 of the Public Acts of 1929~~ 1929 PA 260, shall

become a bailiff of the district court in the thirty-sixth district

on September 1, 1981. A bailiff shall be considered a court officer

under section 8321(1) for the exclusive purpose of serving civil

process in summary proceedings commenced under chapter 57 in the

district court in the thirty-sixth district. All process issued by

the district court in summary proceedings shall be rotated among

the bailiffs pursuant to rules adopted by the court, except that a

writ of restitution shall be issued to the bailiff to whom the

summons was issued in the particular proceeding. A bailiff shall

file with the clerk of the court a surety bond in an amount of

$100,000.00 with a surety company. The premium on the surety bond

shall be paid by the district control unit. A bailiff governed

pursuant to this subsection shall be considered a peace officer

only for the purpose of receiving compensation provided by ~~Act No.~~

~~329 of the Public Acts of 1937, being sections 419.101 to 419.104~~

~~of the~~ ~~Michigan~~ ~~Compiled Laws~~ 1937 PA 329, MCL 419.101 to 419.104.

A bailiff shall hold office until death, retirement, resignation,

or removal from office by the court for misfeasance or malfeasance

in office. A vacancy in the office of bailiff established pursuant

to this subsection shall not be filled.

(3) A bailiff governed pursuant to this section shall keep a

written record of the date, amount, and nature of each financial

transaction conducted by the bailiff in the course of his or her

service as bailiff. An audit of each bailiff's financial

transactions shall be conducted annually by the district control

unit and reported immediately to the judges of the district. If the

audit prescribed by this subsection is not conducted by the

district control unit before June 30 of any year, the judges of the

court shall contract with a certified public accountant to perform

the audit. If a certified public accountant is required to perform

the audit, the cost of the audit shall be paid by the district

control unit.

(4) Upon the existence of a vacancy in the office of bailiff

established under this section, the chief judge of the district may

appoint a court officer pursuant to section 8321(1).

(5) A bailiff serving civil process pursuant to subsection (1)

or (2) shall be compensated by salary and the fees and mileage

prescribed in section 8326. A full-time bailiff, as defined by the

employer designated under section 8274(2) or (3), shall receive

from the city of Detroit a $20,000.00 annual salary. For each part-

time bailiff, as defined by the employer designated under section

8274(2) or (3), the employer designated under section 8274(2) or

(3) shall establish a salary which is a pro rata portion of

$20,000.00 based on that portion of a full-time bailiff's workload

to be assigned to the bailiff. A bailiff covered by this subsection

~~shall~~ is not be entitled to any compensation from the city of

Detroit other than that specifically authorized in this subsection.

(6) A bailiff serving civil process pursuant to subsection (1)

or (2) shall not become a member of the state employees' retirement

system created by ~~Act No. 240 of the Public Acts of 1943, being~~

~~sections 38.1 to 38.47 of the Michigan Compiled Laws~~ the state

employees' retirement act, 1943 PA 240, MCL 38.1 to 38.69.

Beginning September 1, 1981, the city of Detroit shall contribute

to the retirement system in which the bailiff is a member on August

31, 1981, an amount equal to the amount which the state would have

contributed to the state employees' retirement system pursuant to

~~Act No. 240 of the Public Acts of 1943~~ the state employees'

retirement act, 1943 PA 240, MCL 38.1 to 38.69, if the bailiff had

become a member of the state employees' retirement system, based on

the salary paid by the city of Detroit pursuant to subsection (5).

Beginning September 1, 1981, each bailiff shall continue to

contribute to the retirement system in which the bailiff is a

member on August 31, 1981, as required by ordinance, based on

salary and fees received pursuant to subsection (5), except

mileage.

(7) From each filing fee collected under section 8371, the

clerk of the court shall pay to the Wayne county retirement system

the sum of $1.00, to be credited to the retirement fund of the

bailiffs of the district court in the thirty-sixth district serving

civil process pursuant to subsection (1). The county of Wayne shall

annually review the retirement fund and shall ensure that the fund

is maintained in an actuarially sound condition. Copies of the

actuarial reports shall be provided to the employer designated

under section 8274(2) or (3) and to the ~~state court administrator~~

chief judge of the thirty-sixth district.

(8) From each filing fee collected for filing a summary

proceeding under section 5756, the clerk of the court shall pay to

the Wayne county retirement system the sum of $1.00 for each

defendant served in the proceeding, to be credited to the

retirement fund of the bailiffs of the district court in the

thirty-sixth district serving civil process pursuant to subsection

(2). However, the amount credited to the retirement fund under this

subsection shall not exceed 1/2 of the fee collected in a

proceeding. The county of Wayne shall annually review the

retirement fund and shall ensure that the fund is maintained in an

actuarially sound condition. Copies of the actuarial reports shall

be provided to the employer designated under section 8274(2) or (3)

and to the ~~state court administrator~~ chief judge of the thirty-

sixth district.

Sec. 8331. All proceedings in the district court, except as

otherwise provided by law or supreme court rule, shall be recorded.

~~as provided in section 8611.~~

Sec. 8344. Except as provided in this section, not less than 6

years after the entry of a judgment in a civil action, including a

summary proceeding, ~~or a civil infraction action,~~ or in an

ordinance violation case or a criminal case in the district court,

the court may dispose of documents, records, recordings, and notes

related to that action, except the register of actions pursuant to

a schedule adopted by the state administrative board. The court may

order the destruction of documents, records, recordings, and notes

related to a civil infraction action not less than 3 years after

the entry of a finding in the action. The court may order the

destruction of notes, tapes, and recordings that have been

transcribed and filed with the court 1 year after the date of the

filing of the transcript. The register of actions shall be in a

form adequate to reveal, in summary fashion, the general nature of

the action and judgment. After the disposal of the documents,

Senate Bill No. 448 (H-2) as amended December 7, 2005

records, recordings, and notes, the register of actions or a

certified reproduction of the register of actions pursuant to the

records media act is the official record of the action and

judgment. The validity and enforceability of a judgment are not

affected by the destruction of the piece of paper upon which the

judgment is entered, but the register of actions itself, or a

certified reproduction of the register of actions pursuant to the

records ~~media~~ reproduction act, 1992 PA 116, MCL 24.401 to

24.406, is a complete replacement of the judgment and the records

of the action. This section applies to judgments of municipal and

common pleas courts abolished after January 1, 1969, if the

judgment was entered or the action disposed of after January 1,

1969. This section applies to actions entered in the small claims

division of the district court, except that a register of actions

need not be preserved or maintained after destruction of the file.

Sec. 8507. (1) Magistrates shall be registered electors in the

county in which they are appointed. All magistrates appointed shall

serve at the pleasure of the judges of the district court. Before

assuming office, persons appointed magistrates shall take the

constitutional oath of office and file a bond with the ~~county~~

treasurer of a [district] funding unit of that district in an amount

determined by the state court administrator. The bond shall also

apply to temporary service in another county under subsection (2),

or (3), or (4), or pursuant to a multiple district plan under

subsection (5).

(2) In a district of the first class that consists of more

than 1 county, if a magistrate is temporarily absent or

incapacitated, the chief or only district judge may direct a

magistrate of another county of the same district to serve

temporarily in the county where the magistrate is temporarily

absent or incapacitated. The district judge shall make his or her

order in writing. A magistrate serving temporarily under this

subsection ~~shall~~ is not be entitled to additional compensation

but shall be reimbursed for actual and necessary expenses incurred

during the authorized temporary service upon certification and

approval by the state court administrator. Upon allowance, the

reimbursement shall be paid by the state treasurer out of the

appropriation for the state court administrative office.

(3) In a district of the first class that consists of more

than 1 county, the chief or only district judge may authorize a

magistrate appointed in 1 county to serve in another county in the

district.

(4) Pursuant to a multiple district plan under section 8320

involving adjoining districts of the first class, a district court

magistrate appointed in a county of 1 district may be authorized to

serve in a county of the adjoining district. While serving in the

adjoining district, the magistrate shall be subject to the

superintending control of the chief or only district judge of that

district.

(5) Pursuant to a multiple district plan under section 8320

involving districts in the same county, a district court magistrate

may be authorized to serve in any participating district of the

county.

Sec. 8808. (1) When a person who is not a resident of this

state is issued a citation for a civil infraction under section

8807, the person may recognize to the law enforcement officer or to

the court for his or her appearance by leaving with the officer or

court a sum of money not to exceed $100.00.

(2) The officer receiving a deposit of money under subsection

(1) shall give a receipt to the person for the money deposited

together with the written citation required under subsection (1).

(3) At or before the completion of his or her tour of duty, a

law enforcement officer taking a deposit of money shall deliver the

deposit of money and the citation either to the court named in the

citation or to the agency chief or person authorized by the agency

chief to receive deposits. The agency chief or person authorized

shall deposit the money and the citation with the court in the same

manner as prescribed for citations in section 8805. A failure to

deliver the money deposited is embezzlement of public money.

(4) If the person who posts a deposit fails to appear as

required in the citation or for a scheduled informal or formal

hearing, the court having jurisdiction and venue over the civil

infraction shall enter a default judgment against the person, and

the money deposited shall be forfeited and applied to any civil

fine or costs ordered under section 8827.

Enacting section 1. Section 8507 of the revised judicature

act of 1961, 1961 PA 236, MCL 600.8507, as amended by this

amendatory act, applies to bonds filed or renewed by district court

magistrates after December 31, 2005.

Enacting section 2. Sections 8555 and 8611 of the revised

judicature act of 1961, 1961 PA 236, MCL 600.8555 and 600.8611, are