Legislative Report

By: Graham K. Crabtree, Fraser Trebilcock Davis & Dunlap, PC

gcrabtree@fraserlawfirm.com

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With the Memorial Day holiday behind us, summer has now arrived and our Legislature is entering into the last two weeks of scheduled sessions before the summer recess. With no election looming in the fall, our legislators may have an opportunity to enjoy some more time off if they are able to complete their work on the fiscal year 2017-2018 budget before the recess, as planned. That process has been complicated somewhat this year by a shortfall in the projected General Fund balance and disagreements between the Governor and the Republican leadership about spending for infrastructure improvements and legislative proposals to eliminate unfunded liability in the teacher’s retirement system by modification of the benefits available to new hires. But there is hope on all sides that these differences can be resolved so that Governor Snyder’s new tradition of completing the budget in June can continue.

In addition to their work on the budget, our legislators have focused their attention upon a number of the majority party’s priorities, and the pundits have been watching with great interest to see who is lining up to replace Governor Snyder in next year’s election. Although several familiar and unfamiliar potential candidates have expressed interest, at present most expect that the race will ultimately come down to a contest between Attorney General Bill Schuette and former Senate Minority Leader Gretchen Whitmer. It is interesting to note that Lieutenant Governor Brian Calley, who has also tossed his hat into the ring, has recently proposed a constitutional amendment to make the Legislature part-time. I have not yet heard where the smart money is coming down on that proposal and have not pledged any of my own, but we shall see.

New Public Acts

As of this writing on June 1st, there are 42 Public Acts of 2017. Nearly half of these address issues concerning probation, parole and other matters of criminal procedure. The few that may be of any interest to our members as civil litigators include:

2017 PA 39 – Senate Bill 118 (Hansen – R), which will amend the Natural Resources and Environmental Protection Act (NREPA) to provide railroads with immunity from civil liability for injuries suffered by persons while present on a former railroad right-of-way which has been dedicated for use as a public trail during the time when the former right-of-way is in use for that purpose. This amendatory act will also extend the currently existing limited immunity from liability for injuries suffered by persons using a Michigan Trailway or other public trail or land improvement for recreational purposes without compensation to persons, other than a for-profit entity, that have contracted with the owner or tenant of the property for construction, maintenance or operation of a trail or other land improvement. With respect to those persons, there will be no liability for such injuries unless caused by gross negligence or “willful and wanton misconduct.” Public Act 39 will take effect on August 21, 2017.

2017 PA 29 – House Bill 4063 (Barrett – R), which will amend the Penal Code to establish new criminal penalties for the idiots who deliberately shine lasers or similar devices producing a “beam of directed energy” at an aircraft or into the path of an aircraft or a moving train. Violation will be a felony, punishable by imprisonment for up to 5 years and/or a fine of up to $10,000. This act will take effect on August 8, 2017.

Old Business and New Initiatives of Interest

As I mentioned in my last report, SJR F (Bieda – D) and HJR G (Vaupel – R) each propose an amendment of 1963 Const, art 6, § 19, to eliminate subsection (3), which currently provides that: “No person shall be elected or appointed to a judicial office after reaching the age of 70 years.” If either of these joint resolutions is approved by the requisite two-thirds vote in each house of the Legislature, the proposed amendment will be presented to the voters for approval at the next general election. SJR F was reported by the Senate Judiciary Committee without amendment on March 9, 2017, and now awaits consideration by the full Senate on the General Orders calendar. HJR G was reported by the House Judiciary Committee without amendment on April 25, 2017, and now awaits consideration of the full House on the Second Reading calendar. Further consideration of both resolutions appears to be on hold, as discussions of alternative options continue.

HJR C (Runestad – R) proposes an amendment of 1963 Const, art 1 § 11, to specifically extend Michigan’s constitutional protections against unreasonable searches and seizures to electronic data and electronic communications. This joint resolution was passed by the House on May 17, 2017, and has now been referred to the Senate Government Operations Committee.

Senate Bill 349 (Colbeck – R) proposes the creation of a new “campus free speech act” that would prohibit a “public institution of higher education” (a community college or state university) from restricting “expressive conduct” (including peaceful forms of assembly, protest, speech, distribution of literature, carrying signs and circulating petitions) in public areas of their campuses unless a restriction: 1) is necessary to achieve a compelling state interest; 2) is the least restrictive means for furthering that interest; 3) leaves open ample alternative opportunities to engage in the expressive conduct; and 4) allows for spontaneous assembly and distribution of literature. An action for enforcement could be brought by an individual aggrieved by a violation, or by the Attorney General, to obtain damages, injunctive relief and attorney fees. Senate Bill 350 (Colbeck – R) proposes amendments of the State School Aid Act of 1979 which would require community colleges and public universities receiving state appropriations to participate in the formation and direction of a Higher Education Committee on Free Expression in the Department of Education, and strongly encourage those institutions to develop and adopt a policy, with specified content, to protect the right of free expression on college campuses, and for discipline of those who would seek to prevent it.

These bills were introduced in response to recent incidents on college campuses in which persons wishing to publicly express unpopular political viewpoints have been prevented from doing so by official action or intimidation from individuals wishing to silence them. The Senate Judiciary Committee heard testimony on the bills on May 16, 2017, which included opposition expressed by representatives of the state universities based, in part, upon their claim that the proposed requirements would violate their constitutional autonomy. These criticisms prompted a deferral of further consideration, and the bills have not been rescheduled. The alleged infringement of constitutional autonomy has now been addressed by HJR P (Runestad – R), which proposes amendments of Article VIII of the state constitution to provide specific constitutional authorization for the Legislature to provide, by law, for the protection of free speech, expression, and rights of assembly at public institutions of higher education.

HJR Q (Barrett – R) proposes an amendment of Const 1963, art 4 § 13, to transform our Legislature from full to part-time. The amendments would provide that, unless called to convene on extraordinary occasions, the Legislature would meet only for one weekend each month, and for two sessions which would each consist of two consecutive weeks – the first session being conducted in January, February or March, and the second occurring in July, August or September. This joint resolution was introduced on May 31, 2017, and referred to the House Committee on Government Operations. This writer is not going to bet any money that this idea will ever be brought to a vote by the politicians across the street. But as previously discussed, Lieutenant Governor Calley has suggested a separate ballot proposal to accomplish this change, the details of which have not yet been disclosed. The success of that effort remains to be seen.

Senate Bill 333 (Jones – R) proposes amendments of the Revised Judicature Act, MCL 600.8031 to refine the statutory definition of “business or commercial disputes” included within the jurisdiction of the business courts. The amendments would clarify that the existing reference to “members” of a business enterprise is limited to members of a limited liability company or similar business organization, and that the list of parties included in a “business or commercial dispute” would also include guarantors of a commercial loan. The list of specifically excluded actions under subsection 8031(3) would be expanded to include supplementary hearings for enforcement of judgments, actions for foreclosure of construction and condominium liens, and actions for enforcement of condominium and homeowners association governing documents. The legislation also proposes an amendment of MCL 600.8035 to clarify that the business court has jurisdiction over business and commercial disputes in which equitable or declaratory relief is sought. This Bill was passed by the Senate on May 16, 2017. It was reported by the House Judiciary Committee on May 30, 2017, and now awaits consideration by the full House on the Second Reading calendar.

House Bills 4148 through 4157 (Republicans Chatfield, VanderWall, Allor, LaFave, Hauck, Iden and Bellino; and Democrats Moss, Lasinski and Guerra) 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 would 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, but would not create a private cause of action for violations. 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, a reintroduction of a package passed by the House last September, were passed by the House on March 16, 2017, and have now been referred to the Senate Government Operations Committee.

House Bill 4461 (Cochran – D) proposes the creation of a new “death with dignity act.” The new act would establish detailed procedures to permit a physician to prescribe medication which would allow a patient suffering from a terminal disease to end his or her life in a humane and dignified manner, and provide immunity from civil and criminal liability for actions taken in good faith in accordance with those provisions. The act would define “terminal disease” as “an incurable and irreversible disease or progressive pathological condition that has been medically confirmed and will, within reasonable medical judgment, produce death within 6 months.” The required procedures are designed to ensure that a patient’s request for life-ending medication would be based upon an informed and voluntary decision. The proposed act is very similar to the “assisted suicide” ballot proposal which was rejected by the voters several years ago after a campaign featuring a well-organized and intense opposition. HB 4461 was introduced on March 30, 2017, and referred to the House Committee on Health Policy, but has not been scheduled for hearing as of this writing.

To ensure greater freedom to be armed as one chooses, House Bill 4416 (Hoitenga – R) would amend the Penal Code, MCL 750.227, to eliminate the existing prohibition of carrying a pistol concealed on or about one’s person, or in a vehicle, without a license for carrying a concealed weapon. Approval of this change would effectively eliminate the present requirement that a concealed pistol license be obtained in order to carry a pistol concealed or in a vehicle within Michigan, although the current prohibition would be maintained with respect to persons who are prohibited by state or federal law from possessing a firearm. And with the elimination of the licensing requirement, the firearm training required for issuance of a concealed pistol license would no longer be required as a prerequisite for concealed carrying. This bill was reported by the House Judiciary Committee with a Substitute H-1 on May 30, 2017, and now awaits consideration by the full House on the Second Reading calendar.

And for those who prefer knives, Senate Bill 245 (Jones – R) proposes the repeal of MCL 750.226a, which currently provides a criminal penalty of imprisonment for up to a year and/or a fine of up to $300 for possession of a switchblade. This bill was passed by the Senate on April 20, 2017. It was reported by the House Judiciary Committee without amendment on May 23, 2017, and now awaits consideration by the full House on the Second Reading calendar.

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.

Categories: Volume 8-1

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