Michigan Court Changes Due to COVID-19 - Updated 7/13/21

By Rachael M. Sedlacek posted 07-13-2021 09:27

  

Michigan Supreme Court Orders

The Michigan Supreme Court has issued 21 administrative orders in response to the COVID-19 pandemic, which are summarized below by topic.

Many of the administrative orders listed here reference executive orders issued by Governor Whitmer. However, in Midwest Inst of Health, PLLC v Governor of Michigan  (In re Certified Questions from the United States Dist Court)506 Mich 332, 958 NW2d 1 (2020), the court unanimously held that Governor Whitmer did not have the authority under the Emergency Management Act of 1976 (EMA), MCL 30.401 et seq., to declare a “state of emergency” or “state of disaster” based on COVID-19 after April 30, 2020. A majority of the court also held that Governor Whitmer does not have the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (EPGA), MCL 10.31 et seq., because the act unlawfully delegates legislative power to the executive branch and is thus unconstitutional. The court later clarified that the “executive orders issued under [the EPGA] are of no continuing legal effect.” House of Representatives v Governor506 Mich 934, 949 NW2d 276 (2020); see also Midwest Inst of Health, PLLC v Governor  (In re Certified Questions from the United States Dist Court)No 161492, ___ Mich ___, 949 NW2d 274 (Oct 12, 2020).

Note that Midwest Inst of Health, PLLC, deals with executive orders issued by Governor Whitmer. After Midwest Inst of Health, PLLC, epidemic orders pertaining to COVID-19 have been issued by the director of the Michigan Department of Health and Human Services. In addition, several municipalities have passed local ordinances in response to the pandemic that are similar to Governor Whitmer’s executive orders. When analyzing legal issues, be sure to review relevant local ordinances.

July 2021 Bar Exam

AO 2021-2, dated April 21, 2021, details the remote, online format for the July 2021 bar exam. Unlike last July, the 2021 exam will return to the traditional two-day format, with both Multistate Bar Examination and essay components. Although the exam will be administered online, the order provides for an in-person testing possibility for people receiving Americans with Disabilities Act accommodations. Applicants also have the option of transferring to the February 2022 bar exam.

Alternative Procedure for Prison Inmates Seeking Appellate Filings

AO 2020-21, dated November 27, 2020, amended January 5, 2021January 30, 2021February 26, 2021March 29, 2021, and May 3, 2021, allows a pro per inmate to toll their appellate filing deadline by filing a letter with the Michigan Supreme Court or Michigan Court of Appeals. The tolling period expires June 1, 2021, unless extended by the Michigan Supreme Court.

Continuing Order Regarding Court Operations

AO 2020-19, dated June 26, 2020, rescinds AO 2020-2, which limited trial court activity to essential functions and limited the number of people in courtrooms. Courts that are at phase 3 under AO 2020-14 must hold jury trials using standards approved by the SCAO. Courts that are not yet at phase 3 can hold jury trials with the SCAO’s approval. Courts must continue to expand remote participation, and AO 2012-7 (limiting when judges can preside over remote proceedings) is suspended to allow maximum participation by judicial officers. Regarding the temporary rule amendments in AO 2020-9, the following continue until further order of the court:

Time deadlines for the following were temporarily extended 80 days (the period between March 24, 2020, and June 12, 2020):

Time deadlines for the following are extended 76 days (consistent with AO 2020-16):

  • Postjudgment motions filed in trial court
  • Circuit court and agency determination appeals

Trial Court Filing Deadlines Resume

AO 2020-18, dated June 12, 2020, rescinds AO 2020-3, which delayed deadlines for starting a civil or probate case. The rescission is effective June 20, 2020. For cases with time periods that began before AO 2020-3, starting June 20, 2020, filers have the same number of days to file as when the order went into effect on March 23, 2020. All other cases have the full periods for filing starting June 20, 2020.

Although AO 2020-3 entered March 23, 2020, it excluded any day that fell during the state of emergency. A staff comment to AO 2020-18 clarifies that “the practical effect of Administrative Order No. 2020-3 was to enable filers to exclude days beginning March 10, 2020.”

New Landlord-Tenant Case Procedure

AO 2020-17, dated June 9, 2020, amended June 24, 2020October 22, 2020December 29, 2020January 30, 2021March 22, 2021, and April 9, 2021, required courts to handle landlord-tenant actions using a prioritization approach and provided new procedures for landlord-tenant cases. However, due to extended federal response to the COVID-19 pandemic, the prior versions of AO 2020-17 were completely replaced by a new order effective July 2, 2021.

In addition to directing courts to the return-to-full-capacity guidance in AO 2020-14, the July 2, 2021, order requires courts to do the following:

  • comply with MCR 4.201 except when otherwise noted in the order
  • conduct a pretrial hearing and inform defendants of certain rights and options detailed in subsection (B) of the order
  • use remote participation as much as possible, see AO 2020-6, including requiring parties to participate remotely in second and subsequent proceedings; when the court uses remote proceedings, it must “verify that all participants are able to proceed in this manner,” AO 2020-17(D)(F)
  • for summary proceedings cases, include the remote hearing date and time, along with written information about counsel and housing assistance, in the summons for each case
  • adjourn all summary proceeding cases for at least seven days after the pretrial hearing described in subsection (B) of the order unless an exception in subsection (E) applies; a party who fails to appear at the adjourned hearing date will be defaulted
  • process cases that are subject to the Centers for Disease Control and Prevention (CDC) moratorium through entry of judgment; the judgment must allow the defendant to pay or move by the first day after the CDC order expires, or within the statutory period (if later); MCL 600.5744(5) is tolled and MCR 4.201(L)(4)(a) is suspended until the CDC order expires, see 86 Fed Reg 34010 (2021)
  • stay further proceedings after the pretrial hearing in nonpayment of rent cases under MCL 600.5714(1)(a) if the defendant “applies for COVID Emergency Rental Assistance (CERA) and notifies the court of the application,” AO 2020-17(G)see also AO 2020-17(H) (applying stay in subsection (G) to cases filed before March 22, 2021, when party notifies court that it applied for CERA before issuance of writ); the stay in subsection (G) is contingent on
    • a Housing Assessment and Resource Agency eligibility determination within 30 days of pretrial,
    • the defendant’s eligibility to receive rental assistance for the entire amount owed, and
    • the plaintiff receiving full payment from the CERA program within 45 days of the pretrial hearing

    The stay must be lifted if one of the above events does not occur (unless the delay is attributable to the plaintiff). However, the court retains authority to adjourn the case under MCL 600.5732.

The provisions in the July 2, 2021, order also

  • explain that, if the first hearing is held remotely in a summary proceedings case,
    • the court may not enter a default for the defendant’s failure to appear unless they were personally served under MCR 2.105(A) and
    • the court must reschedule the hearing for an in-person proceeding if the defendant was not personally served; “a notice of the rescheduled hearing mailed by the court within 24 hours after the initial hearing date is sufficient notice of the rescheduled hearing, notwithstanding any other court rule,” AO 2020-17(D);
  • suspend local administrative orders requiring a written answer under MCL 600.5735(4); and
  • specify that pretrials may be conducted by “the assigned judge, a visiting judge appointed by SCAO, a magistrate (as long as that magistrate is a lawyer) or a [Michigan Community Dispute Resolution Program] mediator,” AO 2020-17(C).

AO 2020-17 was originally released along with Guidance and two new forms: Consent Order for Conditional Dismissal (DC 508) and Order for Reinstatement of Case and Entry of Judgment (DC 509).

Appellate Deadlines Resume

AO 2020-16, dated June 3, 2020, revives appellate filing deadlines beginning June 8, 2020. The order rescinds AO 2020-4, which temporarily suspended appellate filing deadlines. Filers whose deadlines were tolled by AO 2020-4 have the same number of days to submit their filing as they had before the order went into effect.

July 2020 Bar Exam

AO 2020-15, dated May 18, 2020, details changes to the July 2020 bar exam format. The exam will now be one day (July 28) and will consist of only the essay portion. There is no MBE component. Although the exam will be administered online, the order provides for an in-person testing possibility for people receiving ADA accommodations or for people who are unable to take the exam on a computer. Applicants also have the option of transferring to the next available 2021 bar exam.

Continued Status Quo and Phased Return

AO 2020-14, dated May 6, 2020, advises trial courts to consider expanding in-person operations. Each court’s approach must have “diligent regard for health and safety practices as determined in consultation with local health officials.” The approach must also be approved by the SCAO, which has set guidelines for a phased return to normal operations. Under the guidelines, courts must (among other things):

  • Expand remote hearings and court business online.
  • Keep courtroom access to 10 people or less, including court staff.
  • Impose social distancing practices for court employees and visitors.
  • Limit in-person courtroom activity to essential functions that can’t be done remotely.
  • Use CDC guidance to adopt policies for cleaning and sanitation, screening employees and visitors for illness, and protecting vulnerable individuals.
  • Submit plans to expand operations to the SCAO and maintain the present status quo for operations in the meantime; the guidelines provide four phases of access, and a court’s plan for each phase must be approved by the SCAO before it is implemented.

Before entering any phase of expanded operations, a court must show

  • a lack of COVID-19 symptoms within the court’s facility for a 14-day period (or appropriate deep cleaning and self-quarantine if there are confirmed or suspected cases),
  • a downward trend of COVID-19 cases in the court’s community within a 14-day period, and
  • rescission of state and local orders restricting movement and appropriate heath care system capacity in the court’s community.

The Michigan Supreme Court has established a webpage listing court plans to return to normal operations by county.

Courts Authorized to Collect Contact Information

AO 2020-13, dated April 29, 2020, amended June 26, 2020, by AO 2020-19, allows courts to obtain contact information from parties and witnesses to facilitate remote hearings and case processing. Contact information, which includes mobile phone numbers and email addresses, must be collected on an SCAO-approved form and the form must remain confidential. See MC 505. An attorney’s email address must match the email address on file with the State Bar of Michigan.

Extension of Administrative Orders

AO 2020-12, dated April 27, 2020, extends AO 2020-12020-22020-6, and 2020-9 (discussed below) until further order of the court.

Extension of PPOs

AO 2020-11, dated April 27, 2020, extends all personal protection orders that expire during the state of emergency (between April 27 and June 1) to July 21, 2020. A respondent objecting to the extension may file a motion and request a hearing under MCR 3.707.

Delay of Jury Trials

AO 2020-10, dated April 23, 2020, delays all jury trials through June 22, 2020, or as provided by local order, whichever is later. The order also provides the SCAO with the authority to start pilot projects regarding remote jury trials.

Temporary Rule Amendments and Deadline Extensions

AO 2020-9, dated April 17, 2020, temporarily amends:

Deadlines for the following are suspended as of March 24, 2020, and are extended until Mich Exec Order No 2020-42 (or subsequent related executive order) expires:

Landlord-Tenant Cases

AO 2020-8, dated April 16, 2020, requires that summary proceedings for nonpayment of rent filed before July 25, 2020, include a “verification indicating whether the property is exempt from the moratorium provided for under the CARES Act [Pub L No 116-136].” The verification must be on a SCAO-approved form.

Duration of Orders

AO 2020-7, dated April 10, 2020, extends AO 2020-12020-2, and 2020-6 (discussed below) through April 30, 2020. The extensions are in response to Mich Exec Order Nos 2020-33 and Mich Exec Order No 2020-42 (discussed here), and Senate Concurrent Resolution 24. Note that Mich Exec Order No 2020-42 was rescinded and replaced by several executive orders.

Remote Proceedings

AO 2020-6, dated April 7, 2020, authorizes judicial officers to conduct court business and proceedings remotely using two-way interactive videoconferencing technology or other remote participation tools. Those remote procedures must

  • be consistent with a party’s constitutional rights;
  • enable confidential attorney-client communications;
  • allow public access to the proceedings, either during or immediately after via a video recording, unless the proceeding is closed or limited by statute or rule; and
  • enable the judicial officer to create a recording sufficient to enable a transcript to be produced.

All Michigan judges are required to make a “good faith effort to conduct proceedings remotely whenever possible.”

Effective Dates

AO 2020-5, dated March 27, 2020, extends the effective date of the trial court emergency measures in AO 2020-1, and the limits on courtroom access in AO 2020-2, until April 14, 2020. Both orders are discussed below.

Appellate Deadlines (Rescinded eff. June 8, 2020)

AO 2020-4, dated March 26, 2020, suspends deadlines for all appellate filings beginning March 24, 2020, to correspond with Governor Whitmer’s “Stay Home, Stay Safe” executive order. Deadlines are tolled until the executive order expires on April 13, or until a subsequent executive order “extends the period in which citizens are required to suspend activities that are not necessary to sustain or protect life.” Filers will have the same number of days to file after the executive order expires as they would have before it was effective. The Michigan Supreme Court provided an example of how this would play out in the order.

Trial Court Filing Deadlines (Rescinded eff. June 20, 2020)

AO 2020-3, dated March 23, 2020, amended May 1, 2020, pertains to deadlines for starting a civil or probate case. A deadline that “falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes of MCR 1.108.” The Michigan Supreme Court clarified that the order “is intended to extend all [civil and probate] deadlines pertaining to case initiation and the filing of responsive pleadings.” However, a court may still order “an expedited response to a complaint or motion … to hear and resolve an emergency matter.” See also Mich Exec Order No 2020-58.

Courtroom Access (Rescinded eff. June 26, 2020)

AO 2020-2, dated March 18, 2020, directed “trial courts … to limit access to courtrooms and other spaces to no more than 10 persons, including staff, and to practice social distancing and limit court activity to only essential functions.” The Michigan Supreme Court defined essential functions by court—circuit, district, and probate. All matters that are not listed as an essential function must either be conducted remotely or adjourned until after the order expires. Criminal jury trials must also be adjourned.

Trial Court Emergency Measures

AO 2020-1, dated March 15, 2020, allowed trial courts to implement emergency measures. Chief Justice McCormack discusses the order here. The Michigan Supreme Court detailed nine specific actions courts could take, including adjourning cases, using remote technology, employing electronic filing, and reducing cases being heard and people congregating in and around courtrooms. Courts may even close their buildings to the public. Any emergency measures are, “[s]ubject to constitutional and statutory limitations,” particularly in criminal matters. For example, a case involving a defendant in custody may not be adjourned but the court may use teleconferencing.

Court of Appeals Notices

Effective March 27, 2020, the Court of Appeals will be issuing opinions once a week. The opinions will go to parties on Thursdays and subscribers on Fridays.

Local Court Policies

Links to virtual courtrooms for individual courts, as well as each county’s phased plans for return to full capacity are available through the One Court of Justice MiCOURT Virtual Courtroom Directory.

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