Bill Text: MI SB0168 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Civil procedure; remedies; wrongful imprisonment; provide compensation for. Creates new act.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced - Dead) 2009-02-03 - Referred To Committee On Judiciary [SB0168 Detail]

Download: Michigan-2009-SB0168-Introduced.html

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SENATE BILL No. 168

 

January 29, 2009, Introduced by Senators SCOTT, CLARK-COLEMAN, ANDERSON and BRATER and referred to the Committee on Judiciary.

 

 

     A bill to provide compensation to individuals who are

 

wrongfully incarcerated for crimes; to make appropriations for the

 

compensation of wrongfully incarcerated individuals; to provide for

 

the powers and duties of certain state and local governmental

 

officers and entities; and to provide remedies.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1. This act shall be known and may be cited as the

 

"victims of wrongful incarceration compensation act".

 

     Sec. 2. As used in this act:

 

     (a) "Board" means the state administrative board created by

 

section 1 of 1921 PA 2, MCL 17.1.

 

     (b) "Felony", except as defined otherwise in this act, means

 

an offense under the laws of this state that is punishable by

 

imprisonment for more than 1 year.

 

     (c) "Governmental agencies of this state" means this state and

 

political subdivisions of this state, as "state" and "political

 

subdivision" are defined in section 1 of 1964 PA 170, MCL 691.1401.

 

     (d) "Petitioner" means the individual who files an action

 

under section 5.

 

     (e) "Prosecuting attorney" means that term as defined in

 

section 1 of chapter VIIA of the code of criminal procedure, 1927

 

PA 175, MCL 767A.1.

 

     (f) "Sentencing court" means the court that sentenced the

 

petitioner for the felony conviction.

 

     (g) "SOAHR" means the state office of administrative hearings

 

and rules created by Executive Reorganization Order No. 2005-1, MCL

 

445.2021.

 

     Sec. 3. (1) Subject to subsection (2), an individual is

 

eligible for compensation under this act if the individual was

 

convicted of and incarcerated for a felony and both of the

 

following are applicable:

 

     (a) The conviction is vacated by a court.

 

     (b) The individual did not commit the felony or aid, abet, or

 

act as an accomplice or accessory to a person who committed the

 

felony.

 

     (2) An individual is not eligible for compensation under this

 

act if any of the following are true:

 

     (a) Before the individual's incarceration, the individual was

 

convicted of or, regardless of adjudication, pled guilty or nolo

 

contendere to another felony.

 

     (b) During the individual's incarceration, the individual was

 

convicted of or, regardless of adjudication, pled guilty or nolo

 

contendere to another felony.

 

     (c) During the individual's incarceration, the individual was

 

serving a concurrent sentence for another felony for which the

 

individual was not wrongfully convicted.

 

     (d) As part of the individual's sentence for the conviction,

 

the individual was paroled or transferred to a community

 

residential program or electronic monitoring program and committed

 

a felony, resulting in revocation of the parole or transfer from

 

the community residential program or electronic monitoring program

 

to a state correctional facility.

 

     (3) As used in subsection (2), "felony" includes a crime

 

committed in another state, the elements of which would constitute

 

a felony in this state, or a crime designated as a felony under the

 

laws of the United States. As used in subsection (2), felony does

 

not include an offense committed by a juvenile over which a court

 

has jurisdiction under section 2 of chapter XIIA of the probate

 

code of 1939, 1939 PA 288, MCL 712A.2, or a similar law of another

 

state or the United States.

 

     Sec. 5. (1) An individual may bring an action claiming that he

 

or she is eligible for compensation under this act by filing a

 

complaint with the sentencing court. The petitioner shall make the

 

complaint under oath and state all of the following in the

 

complaint:

 

     (a) That there is verifiable and substantial evidence that the

 

individual is entitled to compensation under section 3(1).

 

     (b) With particularity, the nature and significance of the

 

evidence on which the individual relies in making the statement

 

under subdivision (a).

 

     (c) That the individual is not disqualified under section

 

3(2).

 

     (2) The petitioner shall file a complaint under this section

 

within 1 of the following time periods:

 

     (a) If the conviction is vacated by an order that became final

 

on or after the effective date of this act, within 90 days after

 

the order vacating the conviction becomes final.

 

     (b) If the conviction is vacated by an order that became final

 

before the effective date of this act, within 2 years after the

 

effective date of this act.

 

     Sec. 7. A petitioner shall promptly serve a copy of the

 

complaint on the prosecuting attorney who prosecuted the felony

 

case. The prosecuting attorney shall respond to the complaint

 

within 30 days after the prosecuting attorney receives the

 

complaint. The prosecuting attorney shall do 1 of the following in

 

the response:

 

     (a) Certify to the sentencing court that, based on the

 

complaint and verifiable and substantial evidence of actual

 

innocence, no further criminal proceedings in the case can or will

 

be initiated by the prosecuting attorney, that no questions of fact

 

remain as to the petitioner's wrongful incarceration, and that the

 

petitioner is eligible to seek compensation under section 3(2).

 

     (b) Contest the nature, significance, or effect of the

 

evidence of the petitioner's innocence, the facts related to the

 

petitioner's incarceration, or the petitioner's eligibility to seek

 

compensation under section 3(2).

 

     Sec. 9. (1) If the prosecuting attorney makes a certification

 

under section 7(a) and if the sentencing court determines, based on

 

the complaint and the prosecuting attorney's certification, that

 

the petitioner has presented clear and convincing evidence that the

 

petitioner is eligible for compensation under section 3(1), the

 

court shall enter its order certifying to the board that the

 

petitioner is eligible for compensation under section 3(1) and that

 

the prosecuting attorney certifies that the petitioner is eligible

 

for compensation under section 3(2).

 

     (2) If the prosecuting attorney contests the petitioner's

 

claim under section 7(b), the sentencing court shall determine,

 

based on the complaint, the prosecuting attorney's response, and

 

any supporting documentation, whether, by a preponderance of the

 

evidence, the petitioner is eligible for compensation under section

 

3(2), regardless of eligibility under section 3(1). If the court

 

determines that the petitioner is ineligible under section 3(2), it

 

shall dismiss the complaint.

 

     (3) If the sentencing court determines under subsection (2)

 

that the petitioner is eligible for compensation under section

 

3(2), the court shall state its determination in writing and

 

transfer the complaint to SOAHR for findings of fact and a

 

recommendation under section 11.

 

     Sec. 11. (1) An action transferred under section 9 shall be

 

determined by a hearings officer appointed by SOAHR to make a

 

determination of the petitioner's eligibility for compensation

 

under section 3(1). The transferred action shall be conducted under

 

procedures applicable in a contested case under chapter 4 of the

 

administrative procedures act of 1969, 1969 PA 306, MCL 24.271 to

 

24.287, to the extent that the procedures under that chapter do not

 

conflict with this act.

 

     (2) A hearing shall be held in a case under this section

 

within 120 days after the transfer. The prosecuting attorney may

 

appear at the hearing to contest the evidence presented by the

 

petitioner or the significance or effect of the evidence.

 

     (3) In a case under this section, the petitioner has the

 

burden of establishing his or her eligibility for compensation

 

under section 3(1) by clear and convincing evidence.

 

     (4) Within 45 days after the hearing under this section, the

 

hearings officer shall issue an opinion containing findings and a

 

recommendation and shall file the opinion with the sentencing

 

court.

 

     (5) The sentencing court shall review the findings and

 

recommendation contained in the opinion issued under subsection (4)

 

and, within 60 days after the opinion is issued, shall enter its

 

order adopting or declining to adopt the findings and

 

recommendation of the hearing officer.

 

     (6) If, after making its review under subsection (5), the

 

sentencing court concludes that the petitioner is eligible for

 

compensation under section 3(1), the court shall certify all of the

 

following to the board in its order:

 

     (a) Either of the following:

 

     (i) That the opinion of the hearings officer finds that the

 

petitioner has met the burden of establishing by clear and

 

convincing evidence that the petitioner is entitled to compensation

 

under section 3(1) and the court adopts that finding.

 

     (ii) That the court declines to adopt the findings and

 

recommendation of the hearings officer and finds that the

 

petitioner has met the burden of establishing by clear and

 

convincing evidence that the petitioner is entitled to compensation

 

under section 3(1).

 

     (b) That the court has determined that the findings and

 

recommendations on which its order is based are supported by

 

competent, substantial evidence.

 

     Sec. 13. (1) An individual who a sentencing court determines

 

under section 9 or 11 to be eligible for compensation under this

 

act may file an application for compensation with the board as

 

required in this section. A personal representative of the estate

 

of a decedent is not entitled to apply on behalf of the decedent

 

for compensation under this section.

 

     (2) An individual shall apply to the board under this section

 

within 2 years after the sentencing court enters its order under

 

section 9 or 11 determining that the individual is eligible for

 

compensation under this act.

 

     (3) The board may adopt rules regarding the forms and

 

procedures related to applications for compensation under this

 

section.

 

     (4) An application under this section shall include all of the

 

following:

 

     (a) A certified copy of the order vacating the conviction.

 

     (b) A certified copy of the sentencing court's order under

 

section 9 or 11 determining the applicant to be eligible for

 

compensation.

 

     (c) Certified copies of the original judgment and sentence.

 

     (d) Documentation demonstrating the length of the sentence

 

served, including documentation from the department of corrections

 

regarding the applicant's admission into and release from the

 

custody of the department of corrections.

 

     (e) Positive proof of identification, including 2 full sets of

 

fingerprints administered by a law enforcement agency and a current

 

form of photo identification, demonstrating that the applicant is

 

the individual who was wrongfully incarcerated.

 

     (f) Documentation of any fine, penalty, or court costs that

 

were imposed on and paid by the individual.

 

     (g) Documentation of any reasonable attorney fees and expenses

 

described in section 15.

 

     (h) Any other documentation, evidence, or information required

 

by rules adopted by the board.

 

     (5) The board shall forward the fingerprints of the applicant

 

to the department of state police. The department shall conduct a

 

check of the criminal records of this state and shall forward the

 

second set of fingerprints to the federal bureau of investigation

 

for national criminal records checks. The department of state

 

police shall submit results of the state and national criminal

 

records checks to the board.

 

     (6) Within 30 days, after receiving an application under this

 

section, the board shall examine the application and notify the

 

applicant of any error or omission and request any additional

 

information relevant to the review of the application. The

 

applicant may supplement the application within 15 days after

 

notification under this subsection. The board shall not deny an

 

application because the applicant failed to correct an error or

 

omission or supply additional information unless the board timely

 

notified the applicant of the error or omission or requested

 

additional information under this subsection.

 

     (7) The board shall process and review each completed

 

application within 90 days. Within 5 business days after the board

 

determines whether the claim for compensation meets the

 

requirements of this act, the board shall notify the applicant of

 

its determination.

 

     (8) Within 15 days after notifying an applicant under

 

subsection (7) that the applicant's claim meets the requirements of

 

this act, the board shall determine the compensation to which an

 

applicant is entitled under section 15 and shall notify the state

 

treasurer to satisfy the claim of the applicant from appropriations

 

as provided in section 19.

 

     Sec. 15. (1) Except as otherwise provided in this act and

 

subject to the limitations and procedures prescribed in this

 

section, an individual who the board finds to be entitled to

 

compensation under section 13 is entitled to all of the following:

 

     (a) $50,000.00 for each year of wrongful incarceration,

 

prorated as necessary to account for a portion of a year. Beginning

 

as soon as practicable after January 1, 2010 and January 1 of each

 

subsequent year, the state treasurer shall adjust the amount

 

applicable for the preceding year by an amount determined by the

 

state treasurer to reflect the cumulative annual percentage change

 

in the consumer price index. As used in this subsection, "consumer

 

price index" means the most comprehensive index of consumer prices

 

available for this state from the bureau of labor statistics of the

 

United States department of labor.

 

     (b) A waiver of tuition and fees for up to 120 hours of

 

instruction at a community college or state institution of higher

 

education, if the individual meets and maintains the regular

 

admission requirements of the community college or institution,

 

remains registered at the community college or institution, and

 

makes satisfactory academic progress as defined by the community

 

college or institution.

 

     (c) The amount of any fine, penalty, or court costs imposed on

 

and paid by the individual.

 

     (d) The amount of any reasonable attorney fees and expenses

 

incurred and paid by the individual in connection with all criminal

 

proceedings and appeals related to the wrongful conviction.

 

     (2) The total compensation awarded under subsection (1)(a),

 

(c), and (d) shall not exceed $2,000,000.00. This state shall not

 

award an additional amount for attorney fees, lobbying fees, costs,

 

or other similar expenses.

 

     Sec. 17. (1) After receiving notice from the board under

 

section 13, the state treasurer shall draw a warrant on the general

 

fund or another source designated by the legislature in law for the

 

purchase of an annuity for the applicant based on the total amount

 

determined by the board under section 15.

 

     (2) The state treasurer shall purchase an annuity under this

 

section that provides all of the following:

 

     (a) A 10-year term.

 

     (b) A prohibition on the sale, discounting, or use of the

 

annuity as security for a loan or mortgage by the applicant.

 

     (c) Continued disbursement of the annuity to beneficiaries if

 

the applicant dies during the term of the annuity.

 

     (3) Before the state treasurer draws a warrant for the

 

purchase of an annuity under this section, the applicant shall sign

 

a release and waiver on behalf of the applicant and his or her

 

heirs, successors, and assigns forever releasing all governmental

 

agencies of this state from all present or future claims that the

 

applicant or his or her heirs, successors, or assigns may have

 

against any governmental agencies of this state arising out of the

 

conviction for which compensation is being sought under this act.

 

The state treasurer shall not issue a warrant under this section

 

until the release and waiver are provided to the treasurer.

 

     Sec. 19. An amount sufficient to pay compensation awarded

 

under this act during the fiscal year ending September 30, 2009 is

 

appropriated from the general fund for the fiscal year ending

 

September 30, 2009.

 

     Sec. 21. (1) An individual shall not file a complaint or

 

submit an application for compensation under this act if the

 

individual has an action pending against any governmental agencies

 

of this state in state or federal court that requests compensation

 

in relation to the individual's conviction or incarceration.

 

     (2) An individual who files a complaint or application under

 

this act is not entitled to an appeal or other determination of

 

issues decided under this act except as provided in this act.

 

     (3) Payment under this act is not a waiver of a defense of

 

governmental or sovereign immunity and does not increase the

 

liability of this state or any person under 1964 PA 170, MCL

 

691.1401 to 691.1419.