HB-5033, As Passed Senate, December 2, 2010
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 5033
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 2431, 5838a, and 5851 (MCL 600.2431,
600.5838a, and 600.5851), section 5838a as amended by 1993 PA 78
and section 5851 as amended by 1993 PA 283, and by adding section
177; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 177. (1) Effective February 1, 2011, the indigent defense
counsel commission is created as an advisory body in the department
of technology, management, and budget. The indigent defense counsel
commission shall conclude its work by December 31, 2011.
(2) The indigent defense counsel commission shall consist of
the following members:
(a) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the supreme
court.
(b) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the Michigan
judges association.
(c) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the Michigan
district judges association.
(d) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the Michigan
probate judges association.
(e) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the senate
majority leader.
(f) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the speaker
of the house of representatives.
(g) The attorney general or the attorney general's designee.
(h) The director of the state budget office or the director's
designee.
(i) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the
prosecuting attorneys association of Michigan.
(j) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the criminal
defense attorneys association of Michigan.
(k) One member appointed by the governor from a list
consisting of the names of 3 individuals nominated by the state bar
of Michigan.
(l) One member appointed by the governor as a representative of
crime victims' rights groups.
(m) One member appointed by the governor as a representative
of local funding units.
(3) Members appointed to the indigent defense counsel
commission shall reasonably reflect the population, geographic, and
rural and urban diversity of this state. A sitting judge shall not
be appointed to the indigent defense counsel commission, except
that an individual appointed from a list submitted by the supreme
court, the Michigan judges association, the Michigan district
judges association, or the Michigan probate judges association may
be a sitting judge.
(4) If a vacancy occurs on the indigent defense counsel
commission, the indigent defense counsel commission shall make an
appointment for the unexpired term in the same manner as the
governor made the original appointment.
(5) The governor may remove a member of the indigent defense
counsel commission for incompetency, dereliction of duty,
malfeasance, misfeasance, or nonfeasance in office, or any other
good cause.
(6) The indigent defense counsel commission shall study and
make recommendations regarding providing a flexible, cost-
effective, and fiscally responsible indigent defense delivery
system that is responsive to and respectful of jurisdictional
variations and local community needs and interests. The committee
recommendation should ensure that the public defender system is
free from undue political interference and free of conflicts of
interests and that the right to counsel is delivered by qualified
and competent counsel in a manner that is fair and consistent
throughout the state at each critical stage of the proceeding.
(7) The first meeting of the indigent defense counsel
commission shall be called by the attorney general. At the first
meeting, the indigent defense counsel commission shall elect from
among its members a chairperson and other officers as it considers
necessary or appropriate. After the first meeting, the indigent
defense counsel commission shall meet at least quarterly, or more
frequently at the call of the chairperson or if requested by a
majority or more of the members.
(8) A majority of the members of the indigent defense counsel
commission constitute a quorum for the transaction of business at a
meeting of the indigent defense counsel commission. A majority of
the members present and serving are required for official action of
the indigent defense counsel commission.
(9) The business that the indigent defense counsel commission
may perform shall be conducted at a public meeting of the indigent
defense counsel commission held in compliance with the open
meetings act, 1976 PA 267, MCL 15.261 to 15.275.
(10) A writing prepared, owned, used, in the possession of, or
retained by the indigent defense counsel commission in the
performance of an official function is subject to the freedom of
information act, 1976 PA 442, MCL 15.231 to 15.246.
(11) By December 31, 2011, the indigent defense counsel
commission shall report its recommendations to the governor,
supreme court, senate majority leader, senate minority leader,
speaker of the house of representatives, house minority leader,
chairs of the senate and house standing committees on
appropriations and judiciary, secretary of the senate, clerk of the
house of representatives, and the public.
(12) The department of technology, management, and budget
shall provide staff and support to the indigent defense counsel
commission as necessary for the commission to perform its duties
under this section.
(13) The indigent defense counsel commission may, as
appropriate, make inquiries, studies, and investigations, hold
hearings, and receive comments from the public. The commission may
also consult with outside experts in order to perform its duties,
including experts in the private sector, organized labor, and
government agencies and at institutions of higher education.
(14) Members of the indigent defense counsel commission shall
serve without compensation.
(15) A department, committee, commissioner, or officer of this
state, or of any political subdivision of this state, shall give to
the indigent defense counsel commission any necessary assistance
required by the commission or a member or representative of the
commission in performance of the duties of the commission so as far
as the assistance is compatible with the duties of the department,
committee, commissioner, or officer. The department, committee,
commissioner, or officer shall also provide the commission or
member or representative of the commission free access to any
books, records, or documents in the department's, committee's,
commissioner's, or officer's custody that relate to matters within
the scope of inquiry, study, or review of the commission.
(16) This section is repealed effective January 1, 2012.
Sec.
2431. (1) The expenses of foreclosing any a mortgage by
advertisement shall be taxed in the circuit court as in civil
actions, upon
on the request of any person paying who pays the
expenses, thereof,
and upon such against the party liable to pay
the
same expenses.
(2)
Where If an attorney is employed to foreclose a mortgage
by
advertisement, an attorney's attorney
fee, not to exceed any
amount
which may be provided for in the mortgage, may be included
as
a part of the expenses in the amount bid upon such at the sale
for
principal and interest due thereon on the mortgage in the
following amounts:
(a)
for all sums of If the
amount of principal and interest is
$1,000.00 or less, $25.00.
(b)
for all sums over If the
amount of principal and interest
is more than $1,000.00 but less than $5,000.00, $50.00.
(c)
for all sums of If the
amount of principal and interest is
$5,000.00 or more, $75.00.
(3) But
if If payment of
all amounts then due under an
acceleration
provided for in the mortgage is made
after foreclosure
proceedings to foreclose a mortgage by advertisement are commenced
and
before the sale is made, only 1/2 of such attorney's
fees the
attorney fee under subsection (2) shall be allowed. Both the
principal
and the interest due thereon on
the principal shall be
included
in the sum on which the attorney's attorney fee is
computed.
(4) If a mortgage is reinstated before the sale under a
foreclosure by advertisement is made, the party foreclosing the
mortgage may include an attorney fee, not to exceed any amount
provided for in the mortgage, in the payment required to reinstate
the mortgage. The limitations on attorney fees under subsections
(2) and (3) do not apply to an attorney fee under this subsection.
Sec. 5838a. (1) For purposes of this act, a claim based on the
medical malpractice of a person or entity who is or who holds
himself or herself out to be a licensed health care professional,
licensed health facility or agency, or an employee or agent of a
licensed health facility or agency who is engaging in or otherwise
assisting in medical care and treatment, whether or not the
licensed health care professional, licensed health facility or
agency, or their employee or agent is engaged in the practice of
the health profession in a sole proprietorship, partnership,
professional corporation, or other business entity, accrues at the
time of the act or omission that is the basis for the claim of
medical malpractice, regardless of the time the plaintiff discovers
or otherwise has knowledge of the claim. As used in this
subsection:
(a) "Licensed health facility or agency" means a health
facility or agency licensed under article 17 of the public health
code,
Act No. 368 of the Public Acts of 1978, being sections
333.20101
to 333.22260 of the Michigan Compiled Laws1978 PA 368,
MCL 333.20101 to 333.22260.
(b) "Licensed health care professional" means an individual
licensed or registered under article 15 of the public health code,
Act
No. 368 of the Public Acts of 1978, being sections 333.16101 to
333.18838
of the Michigan Compiled Laws 1978
PA 368, MCL 333.16101
to 333.18838, and engaged in the practice of his or her health
profession in a sole proprietorship, partnership, professional
corporation, or other business entity. However, licensed health
care professional does not include a sanitarian or a veterinarian.
(2) Except as otherwise provided in this subsection, an action
involving a claim based on medical malpractice may be commenced at
any time within the applicable period prescribed in section 5805 or
sections 5851 to 5856, or within 6 months after the plaintiff
discovers or should have discovered the existence of the claim,
whichever is later. However, except as otherwise provided in
section 5851(7) or (8), the claim shall not be commenced later than
6 years after the date of the act or omission that is the basis for
the claim. The burden of proving that the plaintiff, as a result of
physical discomfort, appearance, condition, or otherwise, neither
discovered nor should have discovered the existence of the claim at
least 6 months before the expiration of the period otherwise
applicable to the claim is on the plaintiff. A medical malpractice
action that is not commenced within the time prescribed by this
subsection is barred. This subsection does not apply, and the
plaintiff is subject to the period of limitations set forth in
subsection (3), under 1 of the following circumstances:
(a) If discovery of the existence of the claim was prevented
by the fraudulent conduct of the health care professional against
whom the claim is made or a named employee or agent of the health
professional against whom the claim is made, or of the health
facility against whom the claim is made or a named employee or
agent of a health facility against whom the claim is made.
(b) There has been permanent loss of or damage to a
reproductive organ resulting in the inability to procreate.
(3) An action involving a claim based on medical malpractice
under circumstances described in subsection (2)(a) or (b) may be
commenced at any time within the applicable period prescribed in
section 5805 or sections 5851 to 5856, or within 6 months after the
plaintiff discovers or should have discovered the existence of the
claim, whichever is later. The burden of proving that the
plaintiff, as a result of physical discomfort, appearance,
condition or otherwise, neither discovered nor should have
discovered the existence of the claim at least 6 months before the
expiration of the period otherwise applicable to the claim is on
the plaintiff. A medical malpractice action that is not commenced
within the time prescribed by this subsection is barred.
Sec. 5851. (1) Except as otherwise provided in subsections (7)
and (8), if the person first entitled to make an entry or bring an
action under this act is under 18 years of age or insane at the
time the claim accrues, the person or those claiming under the
person shall have 1 year after the disability is removed through
death or otherwise, to make the entry or bring the action although
the period of limitations has run. This section does not lessen the
time provided for in section 5852.
(2) The term insane as employed in this chapter means a
condition of mental derangement such as to prevent the sufferer
from comprehending rights he or she is otherwise bound to know and
is not dependent on whether or not the person has been judicially
declared to be insane.
(3) To be considered a disability, the infancy or insanity
must exist at the time the claim accrues. If the disability comes
into existence after the claim has accrued, a court shall not
recognize the disability under this section for the purpose of
modifying the period of limitations.
(4) A person shall not tack successive disabilities. A court
shall recognize only those disabilities that exist at the time the
claim first accrues and that disable the person to whom the claim
first accrues for the purpose of modifying the period of
limitations.
(5) A court shall recognize both of the disabilities of
infancy or insanity that disable the person to whom the claim first
accrues at the time the claim first accrues. A court shall count
the year of grace provided in this section from the termination of
the last disability to the person to whom the claim originally
accrued that has continued from the time the claim accrued, whether
this disability terminates because of the death of the person
disabled or for some other reason.
(6) With respect to a claim accruing before the effective date
of
the age of majority act of 1971, Act No. 79 of the Public Acts
of
1971, being sections 722.51 to 722.55 of the Michigan Compiled
Laws,
1971 PA 79, MCL 722.51 to
722.55, the disability of infancy
is
removed as of the effective date of Act No. 79 of the Public
Acts
of 1971 1971 PA 79, MCL
722.51 to 722.55, as to persons who
were at least 18 years of age but less than 21 years of age on
January 1, 1972, and is removed as of the eighteenth birthday of a
person who was under 18 years of age on January 1, 1972.
(7) Except as otherwise provided in subsection (8), if, at the
time a claim alleging medical malpractice accrues to a person under
section 5838a the person has not reached his or her eighth
birthday, a person shall not bring an action based on the claim
unless the action is commenced on or before the person's tenth
birthday or within the period of limitations set forth in section
5838a, whichever is later. If, at the time a claim alleging medical
malpractice accrues to a person under section 5838a, the person has
reached his or her eighth birthday, he or she is subject to the
period of limitations set forth in section 5838a.
(8) If, at the time a claim alleging medical malpractice
accrues to a person under section 5838a, the person has not reached
his or her thirteenth birthday and if the claim involves an injury
to the person's reproductive system, a person shall not bring an
action based on the claim unless the action is commenced on or
before the person's fifteenth birthday or within the period of
limitations set forth in section 5838a, whichever is later. If, at
the time a claim alleging medical malpractice accrues to a person
under section 5838a, the person has reached his or her thirteenth
birthday and the claim involves an injury to the person's
reproductive system, he or she is subject to the period of
limitations set forth in section 5838a.
(9)
If a person was serving a term of imprisonment on the
effective
date of the 1993 amendatory act that added this
subsection
April 1, 1994, and that person has a cause of action to
which the disability of imprisonment would have been applicable
under the former provisions of this section, an entry may be made
or an action may be brought under this act for that cause of action
within
1 year after the effective date of the 1993 amendatory act
that
added this subsection April
1, 1994, or within any other
applicable period of limitation provided by law.
(10) If a person died or was released from imprisonment at any
time
within the period of 1 year preceding the effective date of
the
1993 amendatory act that added this subsection April 1, 1994,
and that person had a cause of action to which the disability of
imprisonment would have been applicable under the former provisions
of this section on the date of his or her death or release from
imprisonment, an entry may be made or an action may be brought
under this act for that cause of action within 1 year after the
date of his or her death or release from imprisonment, or within
any other applicable period of limitation provided by law.
(11) As used in this section, "release from imprisonment"
means either of the following:
(a) A final release or discharge from imprisonment in a county
jail.
(b) Release on parole or a final release or discharge from
imprisonment in a state or federal correctional facility.