ICLE Homepage | Other Proposed Amendments to the
MCRs
September 17, 1996
96-17
Proposed Amendment of Rules 4.101,
4.401, and 6.615 of the Michigan
Court Rules; Addition of Rule 8.125
___________________________________
On order of the Court, this is to advise that the Court
is considering an amendment of Rules 4.101, 4.401, and 6.615 of
the Michigan Court Rules, and the addition of Rule 8.125. Before
determining whether the proposals should be adopted, changed
before adoption, or rejected, this notice is given to afford any
interested person the opportunity to comment on the form or the
merits of the proposals. We welcome the views of all who wish to
address the proposals or who wish to suggest alternatives.
As whenever this Court publishes an administrative
proposal for comment, we emphasize that publication of this
proposal does not mean that the Court will issue an order on the
subject, nor does it imply probable adoption of the proposal in
its present form.
[The present language would be amended as indicated below.]
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
RULE 4.101 CIVIL INFRACTION ACTIONS
(A) Citation; Complaint; Summons; Warrant.
(1) A civil infraction action may be [begun]
initiated
(a) by a law enforcement officer serving a written
citation on the [defendant] alleged
violator, and filing the citation in the
district court;
(b) if the infraction is a parking violation, by an
authorized person
(i) [by] placing a citation securely on
the vehicle and filing the citation in the
district court[;], or
(ii) [by] placing a parking violation
notice securely on the vehicle, mailing a
citation to the registered owner of the
vehicle, and filing the citation in the
district court; or
(c) if the infraction is a municipal
civil infraction, by an authorized
local official
(i) serving a written citation on
the alleged violator, or
(ii) serving a written citation on
the owner or occupant, and sending
a copy of the citation by first-
class mail to the owner, if the
infraction involves the use or
occupancy of land or a building or
other structure.
The citation serves as the complaint in a civil infraction
action. A citation may be filed either on paper or
electronically.
(2) - (4) [Unchanged.]
(B) Appearances; Failure to Appear; Default Judgment.
(1) - (2) [Unchanged.]
(3) A clerk of the court may enter a default after
certifying, on a form to be furnished by the court,
that
[(a)] [the defendant is not in the military
service, and]
([b]a) the defendant has not made a
scheduled appearance, or
(b) the defendant has not answered a
citation within the time allowed by
statute.
(4) If a defendant fails to appear or otherwise to respond
to any matter pending relative to a civil infraction
[traffic] action, the court[:]
(a) - (c) [Unchanged.]
(d) must send the defendant a notice of the entry of
the default judgment and the sanctions imposed;
and
[(e)] [must notify the secretary of state
of the entry of the default judgment, as
required by MCL 257.732; MSA
9.2432;]
[(f)] [must, if the defendant fails to
comply with an order or judgment of the
court, initiate the procedures required
by MCL 257.321a; MSA 9.2021(1); and]
([g]e) may retain the driver's
license of a nonresident as
permitted by statute, if
[it] the court
has received that license
pursuant to statute. The
court need not retain the
license past its expiration
date.
(5) If a defendant fails to appear or
otherwise to respond to any matter pending
relative to a traffic civil infraction, the
court
(a) must notify the secretary of state
of the entry of the default
judgment, as required by MCL
257.732; MSA 9.2432, and
(b) must initiate the procedures
required by MCL 257.321a; MSA
9.2021(1).
(6) If a defendant fails to appear or
otherwise to respond to any matter pending
relative to a state civil infraction, the
court must initiate the procedures required
by MCL 257.321a; MSA 9.2021(1).
(C) Motion to Set Aside Default Judgment.
(1) A defendant may, within 14 days [of the day on
which] after the court sends notice of a
default judgment to the defendant, move to set aside
that judgment. This motion
(a) - (b) [Unchanged.]
(c) must explain the reason for the nonappearance of
the defendant, [and]
(d) must state that the defendant wants to offer a
defense to or an explanation of the complaint,
and
(e) must be accompanied by a cash bond
equal to the fine and costs due at the
time the motion is filed.
(2) - (3) [Unchanged.]
(D) Response.
(1) Except as provided in subrule (4), an
[An] admission without explanation may be
offered to and accepted by
(a) - (b) [Unchanged.]
(c) personnel [in a traffic bureau] in a
district court, as authorized by a judge of
the district.
(2) Except as provided in subrule (4), an
[An] admission with explanation may be written
or offered [verbally] orally to a judge
or district court magistrate, as authorized by
the district judge.
(3) Except as provided in subrule (4), a [A]
denial of responsibility must be made by the defendant
appearing at a time set either by the citation or as
the result of a communication with the court.
(4) If the violation is a trailway municipal
civil infraction, and there has been damage
to property or a vehicle has been impounded,
the defendant's response must be made at a
formal hearing.
(E) Contested Actions; Notice; Defaults.
(1) A contested action may not be heard until a
[complaint] citation is filed with the
court. If the citation is filed electronically, the
court may decline to hear the matter until the citation
is signed by the officer or official who issued it, and
filed on paper. A citation that is not signed
and filed on paper, when required by the court, will be
dismissed with prejudice.
(2) An informal hearing will be held unless
(a) the defendant expressly requests a
formal hearing, or
(b) the violation is a trailway municipal
civil infraction which requires a formal
hearing pursuant to MCL 600.8717(4); MSA
27A.8717(4).
(3) [Unchanged.]
(4) A defendant who obtains a hearing date other than the
date specified in the citation, but who does not appear
to explain or contest [his or her]
responsibility, is in default, and the procedures
established by subrules (B)(4) - (6)
apply.
(F) Post-determination Orders; Sanctions, Fines, and Costs;
Schedules.
(1) [Unchanged.]
(2) Upon a finding of responsibility in a traffic
civil infraction action, the court[:]
(a) must inform the secretary of state of the finding,
as required by MCL 257.732; MSA 9.2432; and
(b) must, if the defendant fails to pay a fine or to
comply with an order or judgment of the court,
initiate the procedures required by MCL
257.321a(1); MSA 9.2021(1)(1).
(3) Upon a finding of responsibility in a
state civil infraction action, the court
must, if the defendant fails to pay a fine or
to comply with an order or judgment of the
court, initiate the procedures required by
MCL 257.321a(1); MSA 9.2021(1)(1).
(4) The court may waive fines, costs, and
fees, pursuant to statute or court rule, or
to correct clerical error.
(G) Appeal; Bond.
(1) An appeal from a [traffic bureau or from a]
district court magistrate, after [any
admission of responsibility or from] an adverse
judgment has been entered at an informal
hearing,
(a) - (b) [Unchanged.]
(c) must be asserted within 7 days of the judgment
[based on the admission or informal
hearing], and
(d) [Unchanged.]
(2) - (4) [Unchanged.]
RULE 4.401 MAGISTRATES
(A) - (C) [Unchanged.]
(D) Appeals. Appeals of right may be taken from a decision of
the magistrate to the district court in the district in
which the magistrate serves by filing a written claim of
appeal in substantially the form provided by MCR 7.101(D)
within 7 days of the entry of the decision of the
magistrate. No fee is required on the filing of the
appeal, except as otherwise provided by statute or court
rule. The action is heard de novo by the district
court.
RULE 6.615 MISDEMEANOR TRAFFIC CASES
(A) - (C) [Unchanged.]
(D) Contested Cases.
(1) A contested case may not be heard until a sworn
[complaint] citation is filed with the
court. If the citation is filed electronically, the
court may decline to hear the matter until the citation
is signed by the officer or official who issued it and
filed on paper. A citation that is not signed and
filed on paper, when required by the court, will be
dismissed with prejudice.
(2) [Unchanged.]
(E) [Unchanged.]
[The following language would be added.]
RULE 8.125 ELECTRONIC FILING OF CITATION
(A) Applicability. This rule applies to all civil infraction
and misdemeanor actions initiated by a Michigan Uniform Law
Citation or a Michigan Uniform Municipal Civil Infraction
Citation.
(B) Citation; Complaint; Filing. A citation may be filed with
the court either on paper or electronically. The filing of
a citation constitutes the filing of a complaint. An
electronic citation must contain all of the information that
would be required if the citation were filed on paper. A
citation that contains the full name of the police officer
or authorized local official who issued it will be deemed to
have been signed pursuant to MCL 257.727c(3), 600.8705(3),
or 600.8805(3); MSA 9.2427(3)(3), 27A.8705(3), or
27A.8805(3).
(C) Contested Actions. If an electronic citation is contested,
the court may decline to hear the matter until the citation
is signed and filed on paper. A citation that is not signed
and filed on paper, when required by the court, will be
dismissed with prejudice.
Staff Comment: The amendment of MCR 4.101,
4.401, and 6.615, and the addition of MCR 8.125, have been
proposed by the Michigan District Judges Association because of
recent statutory changes that created new categories of civil
infractions.
The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.
_____________________________________________
Publication of this proposal does not mean
that the Court will issue an order on the
subject, nor does it imply probable adoption
in its present form. Timely comments will be
substantively considered and your assistance
is appreciated by the Court.
_______________________________________________
A copy of this order will be given to the secretary of
the State Bar and to the State Court Administrator so that they
can make the notifications specified in MCR 1.201. Comments on
this proposal may be sent to the Supreme Court clerk within 60
days after it is published in the Michigan Bar Journal. When
filing a comment, please refer to our file No. 96-17.