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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5744 July 23, 1980 ATTORNEYS: Service of parking violation citation on an attorney on the way to or from court MOTOR VEHICLES: Service of parking violation citation upon attorney MUNICIPALITIES: Service of parking violation citation upon attorney The privilege from service of civil process upon an attorney going to, or attending, or returning from court proceedings does not apply to service of civil infraction citations for parking violations. Honorable H. Lynn Jondahl State Representative The Capitol Lansing, Michigan 48909 You have requested my opinion on whether a county or municipality may validly issue parking citations to an attorney who is going to, attending or returning from court proceedings, or does the Revised Judicature Act of 1961, (RJA), MCLA 600.101 et seq; MSA 27A.101, et seq, ch 18, Sec. 1835 exempt the attorney from service of civil process. RJA ch 18, Sec. 1835, supra, in pertinent part, states: 'All persons going to, attending, or returning from, any court proceedings in any action in which their presence is needed are privileged from service of process if service could not have been made on them had they not gone to, attending, or returned from the proceedings.' [Emphasis supplied.] The Committee Comment which accompanies RJA, ch 18, Sec. 1835, supra states: '[t]he statute would change the law in this area by changing exemptions to privileges which could be waived if not exercised in a timely manner. The reason for this change is that compulsory testimony and exemption from testimony go to the very heart of all judicial systems, it being based on the ability to compel witnesses to testify. Social policy will be advanced by making the person exercise his privilege or lose it.' [Emphasis supplied.] The Committee Comment goes on to state that persons defined in section 1835, supra, include parties, witnesses and attorneys, and the statute '. . . is broad enough to include civil and criminal matters.' (1) Therefore, under RJA, ch 18, Sec. 1835, supra, attorneys going to, attending or returning from court proceedings in which their presence is needed are provided a privilege from service of process which would not have been served but for attendance at court proceedings. (2) 1978 PA 510 amended the Michigan Vehicle Code, 1949 PA 300, MCLA 257.1 et seq; MSA 9.1801 et seq to provide that certain violations of the Michigan Vehicle Code, including parking violations under section 675a thereof, are civil infractions. 1949 PA 300, supra, Sec. 6a, defines 'civil infraction' as 'an act or omission prohibited by law which is not a crime . . ., and for which civil sanctions may be ordered.' Thus, service of a civil infraction parking violation citation, as well as other civil infraction violations of the Michigan Vehicle Code, supra, may be deemed 'process' within the ambit of RJA, ch 18, Sec. 1835, supra. However, the privilege statutorily provided attorneys and others by RJA, ch 18, Sec. 1835, supra, does not apply to the issuance or service of a parking citation or civil infraction citation to an attorney or others who are going to, attending, or returning from court proceedings. The Legislature amended RJA, ch 18, supra, by means of 1979 PA 67 (effective August 1, 1979), to add section 1865 thereto, which provides: 'This chapter [18] shall not apply to the issuance or service of a citation pursuant to section 742 of Act No. 300 of the Public Acts of 1949, as amended, being section 257.742 of the Michigan Compiled Laws.' (3) Thus, the legislature has specifically provided that chapter 18 of RJA, supra, which includes Sec. 1835, supra, does not apply to issuance or service of a citation under 1949 PA 300, Sec. 742, supra. (4) 1949 PA 300, Sec. 742, supra, as last amended by 1979 PA 66, provides for issuance and service of civil infraction citations under the Code or a local ordinance substantially corresponding thereto. Therefore, the privilege from service of civil process, legislatively conferred by RJA, ch 18, Sec. 1835, supra, has been determined by the legislature to be inapplicable with respect to the issuance and service of civil infraction citations under 1949 PA 300, Sec. 742, supra, pursuant to RJA, ch 18, Sec. 1865, supra. (5) Accordingly, it is my opinion that the privilege from service of civil process accorded by RJA, ch 18, Sec. 1835, supra, does not apply to civil infraction citations under 1949 PA 300, Sec. 742, supra, by virtue of RJA, ch 18, Sec. 1865, supra. It follows that a county or a municipality may issue and serve civil infraction parking violation citations upon attorneys going to, while attending, or returning from court proceedings. Frank J. Kelley Attorney General (1)
(2)
See also 1961 PA 236, supra, Sec. 1831, which accords certain persons exemption from service of civil process.(3)
MSA 9.2542.(4)
It is noted that section 742 does not apply to RJA, ch 18, supra, Sec. 1821(4), which provides '. . . parties, attorneys, and subpoenaed witnesses . . .' an exemption from arrest on civil process '. . . while going to, attending and returning from the places they are required to attend' since section 742 by its own terms does not apply to civil arrests. See RJA, ch 18, supra, Sec. 1825 (persons privileged from arrest). It is further noted that RJA, ch 18, Sec. 1865, supra, applies to those persons described in RJA, ch 18, Sec. 1831, supra, fn 2, who are accorded exemption from service of civil process.(5)
This opinion does not address the exemption which legislators possess and may invoke with respect to service of civil infraction citations, pursuant to Const 1963, art 4, Sec. 11. See letter opinions to Rep. Charles Mueller (May 29, 1980) and Gerald L. Hough, Director of Department of State Police (June 18, 1980).
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