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.