As part of its statutory charge to examine current judicial decisions for the purpose of discovering defects in the law and to recommend needed reform, the Michigan Law Revision Commission undertook a review of six Michigan Court of Appeals opinions that identify statutes and common law rules as potential candidates for legislative reform.
The Commission recommends that the Legislature take action with regard to two of those cases, Walker-Bey v. Dept of Corrections, 222 Mich. App. 605, 564 N.W.2d 171 (1997)(timely filing of prisoners petitions under M.C.L. § 791.255(2), M.S.A. § 28.2320-(55)(2)); and Joerger v. Gordon Food Service, Inc., 224 Mich. App. 167, 568 N.W.2d 365 (1997)(taxation of paralegal costs under M.C.L. § 600.2405, M.S.A. § 27A.2405).
The Commission makes no recommendation with respect to the other four decisions, Torrico v. Detroit-Macomb Hospital Corp., 1997 WL 51581, 73 Fair Empl. Prac. Cas. (BNA) 447 (1997)(prohibition against the use of MESC records in collateral proceedings, M.C.L. § 421.11(b)(1), M.S.A. § 17.511(b)(1)); Halbrook v. Honda Motor Co., 1997 WL 392647, Prod. Liab. Rep. (BNA) P 15,034 (1997)(tort reform affecting motor vehicles); Resteiner v. Sturm, Ruger & Co., 223 Mich. App. 374, 566 N.W.2d 53 (1997)(tort reform affecting handguns); and In the Matter of the Estate of Henderson, 1997 WL 433790 (1997)(government tort liability for injuries to passengers in a fleeing vehicle).
II. Adoption of the Prison Mailbox Rule.
Prisoners appearing pro se must rely on prison authorities to have pleadings and other court correspondence mailed. In Houston v. Lack, 487 U.S. 266 (1988), a prisoner filed a pro se petition for a writ of habeas corpus. The petition was dismissed. The petitioner drafted a notice of appeal and deposited it with prison authorities for mailing. The notice was stamped filed by the court clerk one day after expiration of the 30-day filing period for taking an appeal under Rule 4(a)(1) of the Federal Rules of Appellate Procedure.
The U.S. Supreme Court examined the relevant court rules and concluded that they were not dispositive of the question when filing has occurred. The Court held that for pro se prisoners a notice of appeal is deemed filed the moment it is delivered to prison authorities for forwarding. The exception created by the Court is known as the prison mailbox rule.
B. The Walker-Bey Decision.
In Walker-Bey v. Dept of Corrections, 222 Mich. App. 605, 564 N.W.2d 171 (1997), the Michigan Court of Appeals was asked to adopt the Houston prison mailbox rule. M.C.L. § 791.255(2), M.S.A. § 28.2320(55)(2), provides that a prisoner aggrieved by a final decision of the Department of Corrections must file an application for direct review in the circuit court. Such application must be filed with the court within 60 days after the decision. M.C.R. 2.107(G) provides that filing of pleadings and other papers must be with the court clerk.
In the Walker-Bey case, the prisoner presented his petition for review to prison authorities for mailing to the circuit court within the applicable 60 days, but the petition was not filed with the court within that time period. The Court of Appeals declined to adopt the prison mailbox rule, stating that [i]n the absence of ambiguity in the court rules and statute, we are precluded from adopting a ?prison mailbox rule. . . . If a statute is clear, it is inappropriate for us to speculate regarding the probable intent of the Legislature. 222 Mich. App. at 609-10. Because the statute and court rules unambiguously require that the petition for review be filed with the court clerk within the 60-day period, [t]he decision to adopt the prison mailbox rule belongs to the Legislature and to the Supreme Court which, if they see fit, are empowered to rewrite the statute and the court rules, respectively. Id. at 610.
In the context of filing court documents in a timely manner, pro se prisoners are at a disadvantage vis-a-vis prisoners with legal representation. Pro se prisoners must rely on prison authorities to handle their mail in an expeditious manner. If prison authorities are a day late, that delay inures to the detriment of the prisoner who has no legal recourse.
As the concurring opinion in Walker-Bey points out, if a prison mailbox rule is to be adopted in Michigan, it could be done by the Legislature by amending M.C.L. § 791.255(2), M.S.A. § 28.2320(55)(2), or by the Supreme Court either by amending the current court rules or by interpreting the existing court rules to provide for a prison mailbox exception.
Should the Legislature amend M.C.L. § 791.255(2), M.S.A. § 28.2320(55)(2), to create a prison mailbox rule for pro se prisoners?
The Michigan Law Revision Commission recommends that the Legislature amend M.C.L. § 791.255(2), M.S.A. § 28.2320(55)(2), to create a prison mailbox rule for pro se prisoners.
III. Paralegal Expenses As Taxable Costs in Civil Litigation.
M.C.L. § 600.2405, M.S.A. § 27A.2405 provides that the following six items may be taxed and awarded as costs in civil litigation: (1) witness fees, (2) matters made taxable elsewhere in the statutes or court rules, (3) the legal fees for any newspaper publication required by law, (4) the reasonable expenses of printing briefs filed with the Supreme Court, (5) the reasonable costs of any bond required by law, and (6) any attorney fees authorized by statute or court rule. Paralegal costs are not expressly mentioned as an item of recoverable costs.
Similarly, M.C.R. 2.403(O)(6), dealing with recoverable costs in connection with a rejected mediation evaluation, does not list paralegal costs as an item of recoverable costs either.
B. The Joerger Decision.
In Joerger v. Gordon Food Service, Inc., 224 Mich. App. 167, 568 N.W.2d 365 (1997), the circuit court included in its award of mediation sanctions the costs of paralegal services. The Court of Appeals reversed this part of the sanction, concluding that no Michigan statute or court rule provides for an award of such costs. The Court encouraged the Legislature to amend the statute or the Supreme Court to amend the court rule to include paralegal expenses as an item of recoverable costs in civil litigation.
Several states permit an award of paralegal or legal assistant expenses, either pursuant to court rule, statute, or case law.¹ See Annot., Attorneys Fees: Costs of Services Provided by Paralegals or the Like as Compensable Element of Award in State Court, 73 A.L.R.4th 938, § 3. The Court of Appeals in Joerger found that the growing practice of allowing an independent recovery of paralegal time has merit, especially when a paralegal performs work that has traditionally been done by a lawyer. When recovery of such expenses is otherwise authorized, to qualify for such recovery, the following factors have been used in making the award: (1) the paralegal must be qualified by education, training, or work experience to perform substantive legal work; (2) the substantive legal work was performed under an attorneys direction and supervision; (3) the nature of the legal work performed; (4) the hourly rate charged by the paralegal; and (5) the number of hours expended by the paralegal.
Should the Legislature amend M.C.L. § 600.2405, M.S.A. § 27A.2405 to include paralegal expenses as an item of recoverable costs in civil litigation?
The Commission recommends that the Legislature amend M.C.L. § 600.2405, M.S.A. § 27A.2405 to include paralegal expenses as an item of recoverable costs in civil litigation.
¹ Alaska, Arizona, California, the District of Columbia, Florida, Illinois, Indiana, Massachusetts, Minnesota, Missouri, Montana, North Carolina, Oregon, Texas, and Wisconsin.