SB-0291, As Passed Senate, June 9, 2016

SUBSTITUTE FOR

SENATE BILL NO. 291

     A bill to provide compensation and other relief for

individuals wrongfully imprisoned for crimes; to prescribe the

powers and duties of certain state and local governmental officers

and agencies; 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

"wrongful imprisonment compensation act".

     Sec. 2. As used in this act:

     (a) "Charges" means the criminal complaint filed against the

plaintiff by a county prosecutor or the attorney general on behalf

of the people of this state that resulted in the conviction and

imprisonment of the plaintiff that are the subject of the claim for

compensation under this act.

     (b) "New evidence" means any evidence that was not presented

in the proceedings leading to plaintiff's conviction, including new

testimony, expert interpretation, the results of DNA testing, or

other test results relating to evidence that was presented in the

proceedings leading to plaintiff's conviction. New evidence does

not include a recantation by a witness unless there is other

evidence to support the recantation or unless the prosecuting

attorney for the county in which the plaintiff was convicted or, if

the department of attorney general prosecuted the case, the

attorney general agrees that the recantation constitutes new

evidence without other evidence to support the recantation.

     (c) "Plaintiff" means the individual making a claim for

compensation under this act. Plaintiff does not include the estate

of an individual entitled to make a claim for compensation under

this act, the personal representative of the estate, or any heir,

devisee, beneficiary, or other person who is entitled under other

law to pursue a claim for damages, injury, or death suffered by the

individual.

     (d) "State correctional facility" means a correctional

facility maintained and operated by the department of corrections.

     (e) "This state" means the state of Michigan and its agencies,

departments, commissions, and courts. This state does not include a

county, township, city, village, school district, district, state

authority, or a combination of 2 or more of these entities.

     Sec. 3. An individual convicted under the law of this state

and subsequently imprisoned in a state correctional facility for 1

or more crimes that he or she did not commit may bring an action

for compensation against this state in the court of claims as

allowed by this act.

     Sec. 4. (1) In an action under this act, the plaintiff shall

attach to his or her verified complaint documentation that

establishes all of the following:

     (a) The plaintiff was convicted of 1 or more crimes under the

law of this state, was sentenced to a term of imprisonment in a

state correctional facility for the crime or crimes, and served at

least part of the sentence.

     (b) The plaintiff's judgment of conviction was reversed or

vacated and either the charges were dismissed or on retrial the

plaintiff was found to be not guilty.

     (c) New evidence demonstrates that the plaintiff was not the

perpetrator of the crime or crimes and was not an accessory or

accomplice to the acts that were the basis of the conviction and

resulted in a reversal or vacation of the judgment of conviction,

dismissal of the charges, finding of not guilty, or gubernatorial

pardon.

     (2) A complaint filed under this section must be verified by

the plaintiff.

     (3) A copy of a complaint filed under this section must be

served on the attorney general and on the prosecuting attorney for

the county in which the plaintiff was convicted. The attorney

general and the prosecuting attorney may answer and contest the

complaint.

     (4) If the plaintiff's conviction was for an assaultive crime

or a serious misdemeanor, the prosecuting attorney shall notify the

victim of the assaultive crime or serious misdemeanor of the

application in the same manner as is required for an application to

have a conviction set aside under section 22a or 77a of the William

Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.772a

and 780.827a. The prosecuting attorney shall give the victim notice

under this subsection by first-class mail sent to the victim's last

known address. The victim or victim's representative has the right

to appear at any proceeding under this act concerning the complaint

and to make a written or oral statement.

     (5) The plaintiff, the attorney general, and the prosecuting

attorney for the county in which the plaintiff was convicted may

conduct discovery in an action under this act.

     Sec. 5. (1) In an action under this act, the plaintiff is

entitled to judgment in the plaintiff's favor if the plaintiff

proves all of the following by clear and convincing evidence:

     (a) The plaintiff was convicted of 1 or more crimes under the

law of this state, was sentenced to a term of imprisonment in a

state correctional facility for the crime or crimes, and served at

least part of the sentence.

     (b) The plaintiff's judgment of conviction was reversed or

vacated and either the charges were dismissed or the plaintiff was

determined on retrial to be not guilty. However, the plaintiff is

not entitled to compensation under this act if the plaintiff was

convicted of another criminal offense arising from the same

transaction and either that offense was not dismissed or the

plaintiff was convicted of that offense on retrial.

     (c) New evidence demonstrates that the plaintiff did not

perpetrate the crime and was not an accomplice or accessory to the

acts that were the basis of the conviction, results in the reversal

or vacation of the charges in the judgment of conviction or a

gubernatorial pardon, and results in either dismissal of all of the

charges or a finding of not guilty on all of the charges on

retrial.

     (2) Subject to subsections (4) and (5), if a court finds that

a plaintiff was wrongfully convicted and imprisoned, the court

shall award compensation as follows:

     (a) Fifty thousand dollars for each year from the date the

plaintiff was imprisoned until the date the plaintiff was released

from prison, regardless of whether the plaintiff was released from

imprisonment on parole or because the maximum sentence was served.

For incarceration of less than a year in prison, this amount is

prorated to 1/365 of $50,000.00 for every day the plaintiff was

incarcerated in prison.

     (b) Reimbursement of any amount awarded and collected by this

state under the state correctional facility reimbursement act, 1935

PA 253, MCL 800.401 to 800.406.

     (c) Reasonable attorney fees incurred in an action under this

act. All of the following apply to attorney fees under this act:

     (i) The court shall not award attorney fees unless the

plaintiff has actually paid the amount awarded to the attorney.

     (ii) It is not necessary that the plaintiff pay the attorney

fees before an initial award under this act. The court may award

attorney fees on a motion brought after the initial award.

     (iii) The attorney fees must not exceed 10% of the total

amount awarded under subdivisions (a) and (b) or $50,000.00,

whichever is less, plus expenses.

     (iv) An award of attorney fees under this act may not be

deducted from the compensation awarded the plaintiff, and the

plaintiff's attorney is not entitled to receive additional fees

from the plaintiff.

     (3) An award under subsection (2) is not subject to a limit on

the amount of damages except as stated in this act.

     (4) Compensation may not be awarded under subsection (2) for

any time during which the plaintiff was imprisoned under a

concurrent or consecutive sentence for another conviction.

     (5) Compensation may not be awarded under subsection (2) for

any injuries sustained by the plaintiff while imprisoned. The

making of a claim or receipt of compensation under this act does

not preclude a claim or action for compensation because of injuries

sustained by the plaintiff while imprisoned.

     (6) In the discretion of the court, the total amount awarded

under subsection (2)(a) and (b) may be paid to the plaintiff in a

single payment or in multiple payments. If the court orders the

compensation to be paid in multiple payments, the initial payment

must be 20% of the total amount awarded or more and the remainder

of the payments must be made over not more than 10 years.

     (7) An award of compensation under this act is not a finding

of wrongdoing against anyone. An award of compensation under this

act is not admissible in evidence in a civil action that is related

to the investigation, prosecution, or conviction that gave rise to

the wrongful conviction or imprisonment.

     (8) The acceptance by the plaintiff of an award under this

act, or of a compromise or settlement of the claim, must be in

writing and, unless it is procured by fraud, is final and

conclusive on the plaintiff, constitutes a complete release of all

claims against this state, and is a complete bar to any action by

the plaintiff against this state based on the same subject matter.

     (9) A compensation award under subsection (2) may not be

offset by any of the following:

     (a) Expenses incurred by this state or any political

subdivision of this state, including, but not limited to, expenses

incurred to secure the plaintiff's custody or to feed, clothe, or

provide medical services for the plaintiff while imprisoned,

including expenses required to be collected under the state

correctional facility reimbursement act, 1935 PA 253, MCL 800.401

to 800.406. The attorney general is specifically excused from

complying with the state correctional facility reimbursement act,

1935 PA 253, MCL 800.401 to 800.406.

     (b) The value of any services awarded to the plaintiff under

this section.

     (c) The value of any reduction in fees for services awarded to

the plaintiff under this act.

     (10) An award under subsection (2) is not subject to income

taxes.

     (11) A compensation award under this act is subject to the

payment of child support, including child support arrearages, owed

by the plaintiff. The plaintiff remains liable for any child

support or arrearage under the office of child support act, 1971 PA

174, MCL 400.231 to 400.240, and the support and parenting time

enforcement act, 1982 PA 295, MCL 552.601 to 552.650, except for

any child support or arrearage that erroneously accrued while the

plaintiff was imprisoned. Child support must be deducted from an

award under this act before the plaintiff receives any of the money

from the award. This subsection does not affect any ongoing child

support obligation of the plaintiff.

     (12) This act does not impair or limit the right of a state or

local government to collect a debt of a plaintiff from the

plaintiff's award of compensation under this act.

     (13) An award of compensation under this act is subject to

setoff or reimbursement for damages obtained for the wrongful

conviction or imprisonment from any other person.

     (14) If a court determines that a plaintiff was wrongfully

convicted and imprisoned, the court shall enter an order that

provides that any record of the arrest, fingerprints, conviction,

and sentence of the plaintiff related to the wrongful conviction be

expunged from the criminal history record. A document that is the

subject of an order entered under this subsection is exempt from

disclosure under the freedom of information act, 1976 PA 442, MCL

15.231 to 15.246.

     Sec. 6. (1) The wrongful imprisonment compensation fund is

created as a separate fund in the state treasury.

     (2) The state treasurer may receive money or other assets from

any source for deposit into the wrongful imprisonment compensation

fund.

     (3) The state treasurer shall direct the investment of the

wrongful imprisonment compensation fund. The state treasurer shall

credit to the fund interest and earnings from fund investments.

     (4) The department of treasury is the administrator of the

wrongful imprisonment compensation fund for auditing purposes.

     (5) The state treasurer shall expend money from the wrongful

imprisonment compensation fund only for the purpose of paying

claims authorized under this act and costs of administration. The

state treasurer shall pay money from the fund in amounts and at the

times as ordered by the courts under this act.

     (6) Money in the wrongful imprisonment compensation fund at

the close of the fiscal year must remain in the fund and not lapse

to the general fund.

     (7) If there is insufficient money in the wrongful

imprisonment compensation fund to pay claims as ordered under this

act, the state treasurer shall pay claims that are ordered but not

paid if money becomes available in the fund, and pay those claims

before subsequently ordered claims. The state treasurer shall

develop and implement a process to notify the legislature that

money in the fund may be insufficient to cover future claims when

the state treasurer reasonably believes that within 60 days the

money in the fund will be insufficient to pay claims. The process

shall, at a minimum, do all of the following:

     (a) Identify a specific date by which the money in the fund

will become insufficient to pay claims.

     (b) Outline a clear process indicating the order in which

claims pending with the fund will be paid.

     (c) Outline a clear process indicating the order in which

claims that were pending with the fund when money became

Senate Bill No. 291 as amended June 9, 2016

insufficient will be paid, if money subsequently becomes available.

     (8) Any compensation under this act must be paid from the

wrongful imprisonment compensation fund and not from any state

department's or agency's annual budget or current funding.

     Sec. 7. An action for compensation under this act must be

commenced within 3 years after entry of a verdict, order, or

judgment as the result of an event described in section 4(1)(b).

Any action by this state challenging or appealing a verdict, order,

or judgment entered as the result of an event described in section

4(1)(b) tolls the 3-year period. An individual convicted,

imprisoned, and released from custody before the effective date of

this act must commence an action under this act within 18 months

after the effective date of this act.

     Enacting section 1. This act takes effect 90 days after the

date it is enacted into law.

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