MDTC Legislative Section
By: Graham K. Crabtree, Fraser Trebilcock Davis & Dunlap, PC
MDTC Legislative Report
As I complete this report on the eve of the Labor Day weekend, the summer recess is drawing to a close and our legislators are expected to be back in Lansing next week to continue their work for a few session days before their next recess in October. Things have remained relatively peaceful and quiet in Lansing throughout the summer months, which have included only two session days – one in July and one in August – since my last report in June. Major controversies have been avoided as many of the candidates for election to the House have focused on performing the delicate dance of running for office while hoping to avoid discussion of their party's candidate at the top of the ticket. Soon the general election of 2016 will be history and most of us will be glad of that, whatever the outcome may be.
2016 Public Acts
As of this writing, there are 280 Public Acts of 2016. The 47 additional Public Acts filed since my last report have resulted from the subsequent approval of bills passed before the summer recess, as no activity of substance occurred during the sessions conducted in July and August. The few which may be of interest include:
2016 PA 235 – House Bill 5442 (Iden – R), to be known as the "Public Threat Alert System Act," will require the State Police to establish and maintain a new public-threat-alert-system plan to rapidly disseminate useful information to radio and television stations and wireless communication devices concerning "public threats"
– defined as "a clear, present, persistent, ongoing, and random threat to public safety," including, but not limited to, acts of terrorism and unresolved mass shooting events. To prevent abuses of the new system, the act provides that a person who intentionally makes a false report of a public threat will be guilty of a felony, punishable by imprisonment for up to 4 years and/or a fine of up to $2,000, and may also be required to pay the costs of the governmental and media responses to the false report. This new act will take effect on September 22, 2016.
2016 PA 242 – Senate Bill 207 (Jones – R) and
2016 PA 243 – Senate Bill 434 (Casperson – R), these acts, which will also take effect on September 22, 2016, will amend the Vehicle Code to add several new sections authorizing the State Police to initiate a program of pilot projects for roadside testing
– a "preliminary oral fluid analysis"
– administered by officers who have been certified as a "drug recognition expert" to detect the presence of controlled substances when the officer has reasonable cause to believe that a person has been operating a vehicle under the influence of a controlled substance. The results of this analysis will be admissible in evidence for limited purposes, and a person refusing a peace officer's request to submit to the preliminary analysis will be responsible for a civil infraction. The pilot projects initiated pursuant to this program will be limited to a period of one year, and the State Police will be required to submit reports to the legislature describing each project and its results within 90 days after the project's completion.
Public Act 242 will also add a new section, MCL 257.625s, regarding admission of evidence of field sobriety tests in general, and the horizontal gaze nystagmus test in particular. That new provision states that "A person who is qualified by knowledge, skill, experience, training, or education, in the administration of standardized field sobriety tests, including the horizontal gaze nystagmus (HGN) test, shall be allowed to testify subject to showing of a proper foundation of qualifications. This section does not preclude the admissibility of a nonstandardized field sobriety test if it complies with the Michigan Rules of Evidence."
Old Business and New Initiatives
The 98th Legislature is entering its final phase, with only 20 more session days scheduled in the House and 23 in the Senate. Thus, it is once again time for interested observers to make their predictions of what may or may not be taken up in the lame duck session
– a process which is always fraught with uncertainty, to say the least. As usual, a great deal may depend upon the outcome of the upcoming election. If the GOP retains control of the House, there will not be any real urgency with respect to most of the pending initiatives, which may be re-introduced in the next session. If the Democrats win control of the House, we may expect a great deal of activity with some long days and a late-night session or two before it's all over, and in that event, most any Republican-sponsored proposal could sprout legs for a sprint to final passage before the last adjournment.
There are a number of bills, in addition to those previously discussed, which could be addressed in the last days of this session. These and other bills of interest include:
House Bill 5503 (Tedder – R), this bill is a necessary companion bill to
Senate Bill 632 (Schuitmaker – R), which was enacted into law as
2016 PA 186 in June, before the summer recess. As discussed in my last report,
2016 PA 186 will amend provisions of the Revised Judicature Act defining the jurisdiction of the Court of Appeals and the probate courts to provide that the Court of Appeals will have jurisdiction over all appeals from final orders and judgments of the probate courts, and provide the statutory authority required for previously-proposed court rule changes which would confer jurisdiction upon the Court of Appeals over all appeals from interlocutory orders of the probate court as well. The amendments will also replace the automatic stay provision of MCL 600.867 with new language consistent with the court rules governing other appeals to the Court of Appeals, providing for an automatic stay of enforcement of the order appealed from for a period of 21 days only, unless a motion for stay is granted.
House Bill 5503 proposes consistent amendments to the Estates and Protected Individuals Code. It was reported by the Senate Judiciary Committee without amendment on August 3, 2016, and awaits consideration by the full Senate on the General Orders Calendar. The effective date of this package remains to be determined by the expected prompt enactment of this tie-barred companion bill.
Senate Bill 982 (Schuitmaker – R) proposes a variety of amendments to the Uniform Fraudulent Transfer Act, MCL 566.31,
et seq. This Bill was introduced on May 24, 2016, and referred to the Senate Judiciary Committee. It has been included on the agenda for the committee's hearing on September 6, 2016.
House Bills 5469 through 5478 (Republicans McBroom, Howrylak, Bizon, Barrett, Chatfield and Sheppard; and Democrats Rutledge, Guerra and Moss), this bipartisan package of bills proposes amendment of the Freedom of Information Act (FOIA) to add a new Part 2, to be known as the "Legislative Open Records Act" (LORA). The new sections would add new provisions, modeled after existing sections of FOIA, requiring disclosure of records of legislators and legislative-branch agencies and employees previously exempted from disclosure under FOIA, subject to specified exclusions and the privileges and immunities provided under Article IV, Section 11, of the State Constitution. The new sections provide for a limited review of decisions of the "LORA Coordinator" denying requests for production of documents by appeal to the Administrator of the Legislative Council. These bills also propose amendments to existing sections of FOIA to eliminate the existing exemptions of the Governor, the Lieutenant Governor, their executive offices, and the employees thereof, from the act's definition of "Public Body," thereby extending the coverage of the act to their records, subject to specified exemptions. These bills were reported by the House Committee on Oversight and Ethics in May, and await consideration by the full House on the Second Reading Calendar.
House Bill 5802 (Singh – D) proposes the creation of a new "Death with Dignity Act," which would establish new procedures to allow terminally-ill persons to end their lives with the assistance of medication prescribed for that purpose under carefully limited circumstances. This bill, modeled after similar legislation enacted in other states and a proposed initiated law rejected by the voters several years ago, is unlikely be taken up this fall, but its introduction may signal the beginning of a new discussion of physician-assisted termination of life.
Senate Bill 993 (Casperson – R), this highly controversial bill, now well known as "the bathroom Bill," proposes to amend the Revised School Code to add a new section, MCL 38.1181, which would require public schools to make reasonable accommodations for the restroom needs of transgendered students while also requiring that public school restrooms, locker rooms, and shower rooms that are designated for use by pupils and accessible for use by multiple pupils at the same time must be designated for and used only by pupils of the same biological sex. It is probably unlikely that this bill will be taken up before the election, but it may well provide an occasion for some spirited discussions in the lame duck session.
What Do You Think?
Our members are again reminded that the MDTC Board regularly discusses pending legislation and positions to be taken on bills and resolutions of interest. Your comments and suggestions are appreciated, and may be submitted to the Board through any officer, board member, regional chairperson or committee chair.