TRACY NEAL V DEPARTMENT OF CORRECTIONS (Authored Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
TRACY NEAL, and All Others Similarly Situated,
Plaintiffs-Appellees,
v
FOR PUBLICATION
August 7, 2012
9:00 a.m.
No. 305142
Washtenaw Circuit Court
LC No. 96-006986-CZ
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee,
Advance Sheets Version
and
WAYNE COUNTY PROSECUTOR,
Intervening-Appellant,
and
OAKLAND COUNTY REIMBURSEMENT
UNIT/FISCAL SERVICES DIVISION and
DEPARTMENT OF HUMAN SERVICES,
Intervening-Appellees.
TRACY NEAL, and All Others Similarly Situated,
Plaintiffs-Appellees,
v
No. 305186
Washtenaw Circuit Court
LC No. 96-006986-CZ
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee,
Advance Sheets Version
-1-
and
OAKLAND COUNTY REIMBURSEMENT
UNIT/FISCAL SERVICES DIVISION,
Intervening-Appellant,
and
WAYNE COUNTY PROSECUTOR and
DEPARTMENT OF HUMAN SERVICES,
Intervening-Appellees.
NICOLE ANDERSON, and All Others Similarly
Situated,
Plaintiffs-Appellees,
v
DEPARTMENT OF CORRECTIONS,
No. 305195
Court of Claims
LC No. 03-000162-MZ
Defendant-Appellee,
and
Advance Sheets Version
OAKLAND COUNTY REIMBURSEMENT
UNIT/FISCAL SERVICES DIVISION,
Intervening-Appellant,
and
WAYNE COUNTY PROSECUTOR and
DEPARTMENT OF HUMAN SERVICES,
Intervening-Appellees,
-2-
TRACY NEAL, and All Others Similarly Situated,
Plaintiffs-Appellees,
v
No. 305225
Washtenaw Circuit Court
LC No. 96-006986-CZ
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee,
Advance Sheets Version
and
DEPARTMENT OF HUMAN SERVICES,
Intervening-Appellant,
and
WAYNE COUNTY PROSECUTOR and
OAKLAND COUNTY REIMBURSEMENT
UNIT/FISCAL SERVICES DIVISION,
Intervening-Appellees,
NICOLE ANDERSON, and All Others Similarly
Situated,
Plaintiffs-Appellees,
v
No. 305226
Court of Claims
LC No. 03-000162-MZ
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee,
Advance Sheets Version
-3-
and
DEPARTMENT OF HUMAN SERVICES,
Intervening-Appellant,
and
OAKLAND COUNTY REIMBURSEMENT
UNIT/FISCAL SERVICES DIVISION and
WAYNE COUNTY PROSECUTOR,
Intervening-Appellees,
NICOLE ANDERSON, and All Others Similarly
Situated,
Plaintiffs-Appellees,
v
No. 305288
Court of Claims
LC No. 03-000162-MZ
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee,
Advance Sheets Version
and
WAYNE COUNTY PROSECUTOR,
Intervening-Appellant,
and
OAKLAND COUNTY REIMBURSEMENT
UNIT/FISCAL SERVICES DIVISION and
DEPARTMENT OF HUMAN SERVICES,
Intervening-Appellees.
Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ.
SAWYER, J.
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In these consolidated cases, intervenors appeal by leave granted the trial court order 1
denying their discovery requests to learn the identities of the plaintiff class. We affirm in part,
reverse in part, and remand.
The underlying class actions in this case were brought by women convicted of felonies
and incarcerated at facilities operated by the Department of Corrections (DOC). Plaintiffs filed
these actions against the DOC, past and current directors and various wardens, as well as
corrections officers. Plaintiffs alleged that they were the victims of systematic sexual
harassment, sexual assault and retaliation inflicted by male corrections personnel. See Neal v
Dep’t of Corrections, 230 Mich App 202; 583 NW2d 249 (1998).
That litigation ultimately resulted in a settlement agreement in which DOC agreed to pay
$100 million in installments over a six-year period paid into an escrow account and then
distributed to the attorneys and class members according to an allocation plan. 2 DOC also
agreed to waive the prohibition on prisoners maintaining accounts at financial institutions outside
their DOC institutional account. The trial court also entered a protective order that prohibited the
disclosure of the names of class members other than to necessary DOC and Attorney General
employees. The purpose of the protective order was to prevent retaliation against the class
members.
Thereafter, the Wayne County Prosecutor and the Oakland County Reimbursement
Unit/Fiscal Services Division, intervened seeking to discover the names of the class members to
ensure that any outstanding orders of restitution, court costs, and court-appointed attorneys fees
arising from judgments of sentence were paid from the proceeds of the settlement agreement.
The Department of Human Services (DHS) intervened, seeking to ensure the payment of any
outstanding child support obligations.
Plaintiffs’ counsel responded that it was her
understanding that all applicable laws regarding these payments were being complied with and
the protective order precluded the release of the identity of the class members. DOC similarly
refused to comply with the discovery requests due to the protective order.
The trial court attempted to resolve the matter by having intervenors submit a list of the
names of any female prisoner with an outstanding obligation who might have been a member of
the class. Plaintiffs’ counsel was to then compare those lists against the names of class members
to determine if any class member had an outstanding obligation. This failed to resolve the
dispute, however, because intervenors determined that it was logistically impossible for them to
generate a comprehensive list of all potential claimants. They continued to maintain that they
needed the list of names of the class members to check that list against their own records.
Ultimately, the trial court declined to order the parties to disclose to intervenors the identities of
the class members and this appeal followed.
1
Though separate class actions were brought in the Washtenaw Circuit Court and the Court of
Claims, the actions were consolidated below.
2
The installments are due each October from 2009 through 2014. Approximately one-third of
the disbursements have already been made and two-thirds remain to be paid.
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We agree with intervenors’ general proposition that there are constitutional and statutory
provisions that support victims’ rights to recover restitution, as well as the government’s right to
recover fines, costs and fees imposed as part of a judgment of sentence. And we also agree that,
to the extent that the settlement agreement between the parties is inconsistent with applicable
statutes, those provisions are unenforceable. But that does not equate to intervenors having a
right to discover the identities of the class members. On the other hand, we are not in agreement
with the trial court’s approach of putting the burden on intervenors to produce a list of prisoners
who owe an obligation and are potentially a member of the class. Nor are we convinced that it
was appropriate to put the burden on plaintiffs’ counsel to determine if a potential obligor was a
member of the class because that places on counsel a serious conflict of interest between
protecting the interests of the client and the efforts of intervenors to collect the obligations owed.
In resolving this matter, we must begin by looking at the relevant statutory provisions.
We review de novo questions of statutory interpretation. People v Swafford, 483 Mich 1, 7; 762
NW2d 902 (2009). In doing so, we discover the general resolution to this issue. At issue are the
provisions of MCL 791.220h and MCL 600.5511.
MCL 791.220h provides as follows:
(1) If a prisoner is ordered to pay restitution to the victim of a crime and
the department receives a copy of the restitution order from the court, the
department shall deduct 50% of the funds received by the prisoner in a month
over $50.00 for payment of restitution. The department shall promptly forward
the restitution amount to the crime victim as provided in the order of restitution
when the amount exceeds $100.00, or the entire amount if the prisoner is paroled,
transferred to community programs, or is discharged on the maximum sentence.
The department shall notify the prisoner in writing of all deductions and payments
made under this section. The requirements of this subsection remain in effect until
all of the restitution has been paid.
(2) Any funds owed by the Michigan department of corrections or to be
paid on behalf of one or more of its employees to satisfy a judgment or settlement
to a person for a claim that arose while the person was incarcerated, shall be paid
to satisfy any order(s) of restitution imposed on the claimant that the department
has a record of. The payment shall be made as described in subsection (1). The
obligation to pay the funds, described in this section, shall not be compromised.
As used in this section, “fund” or “funds” means that portion of a settlement or
judgment that remains to be paid to a claimant after statutory and contractual
court costs, attorney fees, and expenses of litigation, subject to the court’s
approval, have been deducted.
(3) The department shall not enter into any agreement with a prisoner that
modifies the requirements of subsection (1). Any agreement in violation of this
subsection is void.
Much of the dispute related to victim restitution can be resolved by reference to this statute.
First, it clearly puts the burden on DOC to withhold money from the settlement and forward to
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the victims any restitution ordered. Second, DOC has such an obligation only if a copy of the
restitution order has been sent to the department.
We note that it should be unnecessary for intervenors to identify potential class members
who have outstanding restitution obligations because all restitution orders relating to defendants
that have been sentenced to the custody of the DOC should have been forwarded to the DOC for
collection from prisoners’ funds. Because MCL 791.220h(1) does not, by its terms, apply only
to the proceeds of lawsuits against DOC, but to any prisoners funds, we would expect that all
restitution orders would be automatically forwarded for any defendant sentenced to prison.
And by the clear mandate of the statute, the DOC must collect from prisoner funds any
outstanding restitution obligation. Therefore, the DOC should already have been withholding
from the disbursements funds allocated to any prisoner who had an outstanding restitution
obligation until that obligation was satisfied.
We should note that attention must be paid to the differences between subsections (1) and
(2). Subsection (1) only applies to prisoners and it limits the amount that can be deducted (50%
of the funds received in excess of $50 in any given month). Subsection (2), on the other hand,
applies to a “person” who receives money from a judgment or settlement against the DOC or a
DOC employee. It is not limited to current prisoners, nor is there a limit to the amount that can
be withheld. That is, all of the funds owed to a person arising from a settlement or judgment
against the DOC or its employees are to be withheld until restitution is satisfied. 3 Therefore, the
DOC should already have been withholding from the three previous disbursements any amounts
that would be paid to a class member who had an outstanding restitution obligation (of which the
DOC had a record) and should continue to do so in the three remaining disbursements until the
restitution obligation is satisfied.
Plaintiffs argue that the protective order does not interfere with the enforcement of the
statute for two reasons. First, once a prisoner is released from incarceration, her name is released
to the DOC, which can then determine if any restitution needs to be paid. Second, for those class
members who remain incarcerated, when the money is transferred into their institutional prison
accounts, the DOC would automatically deduct the money to pay the restitution pursuant to
subsection (1). While there is some logic to these arguments, they fail because they are premised
on a third argument, which is flawed. That argument is that MCL 791.220h does not mandate
that restitution be satisfied before settlement proceeds are distributed. As we discussed earlier,
the clear meaning of subsection (2) is that the proceeds from a judgment or a settlement in
3
The reference in subsection (2) to subsection (1) is only in regard to how the payment to the
victim is made, not in reference to how the funds are withheld. That is, the DOC does not have
to make payments to the victim until the accumulated amount exceeds $100 or the prisoner is
released from incarceration.
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litigation against the DOC must first be used to satisfy any outstanding restitution order filed
with the DOC before any proceeds may be distributed to a prisoner. 4
Accordingly, to the extent that the protective order does not allow for the disclosure of
names to the DOC or its employees in order for the DOC to comply with its statutory
obligations, or provide for some alternative method that ensures the DOC’s compliance, that
provision is invalid. The DOC has a clear statutory obligation to disburse the funds to the
victims in payment of restitution obligations and an agreement in violation of law is
unenforceable. Wilkie v Auto-Owners Ins Co, 469 Mich 41, 51; 664 NW2d 776 (2003). And the
fact that this agreement takes the form of a stipulated order does not change this basic principle
because a stipulated order that does not conform to the law is void. Miller v Miller, 264 Mich
App 497, 507 n 12; 691 NW2d 788 (2004), rev’d on other grounds 474 Mich 27; 707 NW2d 341
(2005). Simply put, the parties could not stipulate to an order that relieves the DOC of its
statutory obligations or that precludes the DOC from being able to fulfill its statutory obligations.
MCL 791.220h only resolves the question of restitution. With respect to court costs, etc.,
we must turn to MCL 600.5511, which provides in pertinent part as follows:
(2) Subject to section 220h of 1953 PA 232, MCL 791.220h, and the crime
victim’s rights act, 1985 PA 87, MCL 780.751 to 780.834, any damages awarded
to a prisoner in connection with a civil action brought against a prison or against
an official, employee, or agent of a prison shall be paid directly to satisfy any
outstanding restitution orders pending against the prisoner, including, but not
limited to, restitution orders issued under the state correctional facility
reimbursement act, 1935 PA 253, MCL 800.401 to 800.406, the prisoner
reimbursement to the county act, 1984 PA 118, MCL 801.81 to 801.93, 1982 PA
14, MCL 801.301, and the crime victim’s rights act, 1985 PA 87, MCL 780.751
to 780.834, any outstanding costs and fees, and any other debt or assessment
owed to the jurisdiction housing the prisoner. The remainder of the award after
full payment of all pending restitution orders, costs, and fees shall be forwarded to
the prisoner.
(3) Before payment of any damages awarded to a prisoner in connection
with a civil action described in subsection (2), the court awarding the damages
shall make reasonable efforts to notify the victims of the crime for which the
prisoner was convicted and incarcerated concerning the pending payment of
damages.
4
The concern that DOC is not fully meeting this obligation is reflected in plaintiffs’ brief on
appeal when they indicate that it was DOC’s clear intent in reaching the settlement to not be
involved in the identification of class members and the allocation of settlement funds. While the
DOC’s desire to stay out of that process is understandable, it is not feasible given its statutory
duty to collect restitution before the distribution of the proceeds.
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This statute, if applicable, would not only resolve the restitution issue, it would also resolve the
issues relative to outstanding court costs and fees (but not the child-support issue). This statute
clearly provides that any damage award to a prisoner arising out of a claim against the
department or its employees must first be utilized to pay any outstanding restitution, costs and
fees, or other assessments owed to the jurisdiction housing the prisoner. Only after full payment
of restitution, costs and fees may any money be paid to the prisoner.
Plaintiffs’ primary argument against the application of MCL 600.5511 to this dispute is
that it was not enacted until three years after the filing of these actions and, therefore, does not
apply. We disagree. First, we note that this is true only for some of the claims. The Neal case
was filed in 1996. But the Anderson case was not filed until 2003 and was consolidated with
Neal. Therefore, even if we agree that the statute does not apply to cases filed before the statute
was enacted, it would still apply to the Anderson claims. But we do need to resolve the issue
with respect to the Neal claims.
The retroactivity issue was addressed in a prior appeal in this case. Neal v Dep’t of
Corrections, unpublished opinion per curiam of the Court of Appeals, issued February 23, 2006
(Docket Nos. 253543 and 256506). But we are not persuaded that that opinion controls here.
Initially, because it is unpublished it is not precedentially binding. MCR 7.215(C)(1).
Furthermore, neither are we persuaded that the law of the case doctrine applies. First,
intervenors were not a party to the prior appeal. Second, while the prior appeal considered the
retroactive application of the prison litigation reform act, MCL 600.5501 et seq., it considered it
in relation to a different aspect of the act. Specifically, it considered whether the requirement of
MCL 600.5503(1) that a prisoner exhaust all administrative remedies before filing suit, barred
claims that had accrued before the enactment of the statute. Neal, unpub op at 3. This Court
concluded that the requirement only applied to those claims that had accrued after the effective
date of the act.
In this appeal we deal not with the question whether a claim is barred by the statute, but
with how the proceeds of a settlement are to be disbursed. The settlement was reached after the
effective date of the act, when all parties would be aware of the provisions of the law. Thus,
while applying MCL 600.5503(1) retroactively to bar the claim itself would impair or abrogate a
vested right, directing the distribution of settlement proceeds does not. In other words, the
application of MCL 600.5511(2) to this case would not retroactively impair or abrogate
plaintiffs’ rights, but merely ensure the payment of their preexisting financial obligations from
proceeds to which they became entitled after the enactment of the statute. Furthermore, we view
this portion of the statute as being remedial or procedural in nature and, therefore, it may be
applied retroactively. See Tobin v Providence Hosp, 244 Mich App 626, 661-662; 624 NW2d
548 (2001).
Accordingly, we conclude that the DOC may not disburse any funds to any plaintiff class
member until there has been “full payment of all pending restitution orders, costs, and fees” as
required by MCL 600.5511(2) for that particular plaintiff class member. Because disbursement
should not have been made until the obligations had been satisfied, the DOC should seek to
recover those payments to any particular class member if the future payments owed that
particular class member will prove inadequate to meet the obligations under the statute.
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While these statutes resolve the obligations of the DOC with respect to the disbursement
of the settlement proceeds, it does not itself directly resolve the question whether the identities of
the class members must be disclosed. Initially, we note that nothing in these statutes gives
intervenors any particular right to know the identity of the class members. While intervenors
certainly have an interest in ensuring that the statutes are complied with and the restitution, fees
and costs are properly paid, that does not equate with the right to receive the names of the class
members. If the trial court is able to fashion a method to ensure that the DOC is meeting its
statutory obligations with respect to the proper disbursement of the proceeds of the settlement
without the necessity of disclosing the names of the class members, it is certainly free do so.
We leave it initially to the trial court to determine an appropriate method of doing so.
Perhaps the trial court will find it appropriate to appoint a Special Master who will have access
to the names of the class members and the DOC records to determine which class members have
outstanding obligations and which do not. Or maybe the answer lies in modifying the protective
order to allow the release of names, even those currently incarcerated, to a limited number of
DOC employees who will oversee compliance with the statutes. We offer these only as
suggestions and not as directions. Our only directions are these: (1) the DOC must comply with
the statutory provisions to ensure that the restitution, fees and costs required to be paid by a class
member are, in fact, paid before any disbursement to that class member, (2) plaintiffs’ counsel is
not to be the gatekeeper to determine compliance or otherwise to identify which class members
have such an obligation, and (3) there must be some oversight mechanism to confirm that the
DOC does, in fact, discharge its obligations. We also direct that any future disbursement of
funds is to be suspended until a satisfactory method is in place to ensure compliance with the
statute.
We do note, however, a statutory provision that may preclude complete concealment of
the names of the class members. As intervenors point out, MCL 600.5511(3) obligates the trial
court in this matter to make reasonable efforts to notify the victims of the pending payment of
damages before any payment may be made to the prisoner. Of course, the notification does not
have to disclose that any such damage payment is coming from the proceeds of this particular
lawsuit. Nor is the trial court obligated to make public the identity of the victims to whom the
notices are sent. But because the notices must be sent, it is conceivable that the identity of a
currently incarcerated class member might become known. Nonetheless, the trial court is
obligated to comply with this statute. According to intervenors, the trial court has failed to
comply with its statutory duty to provide notice. Indeed, if in fact the trial court has not been
supplied with a list of names of the class members, then it presumably would be impossible for
the trial court to have complied with this duty.
Next, intervenors argue that the trial court lacked the authority to issue a protective order
because MCR 2.302(C) requires a motion and this order was entered by stipulation. This issue
was not raised below and, therefore, is not preserved for review. Keenan v Dawson, 275 Mich
App 671, 681; 739 NW2d 681 (2007).
In a similar argument, intervenors argue that the protective order is invalid because it
does not meet the requirements of MCR 8.119(F) regarding sealed records. This argument is
without merit because it does not appear that the names of the class members were ever part of
the court record. In short, the protective order does not, in fact, seal the court records.
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It is also argued that plaintiffs are obligated to disclose their names in the caption of the
complaint under MCR 2.113(C)(1)(b). We do not read that rule as requiring that all members of
a class in a class action suit be named in the caption of a complaint. As MCR 3.501(A)(1) states,
in class actions there are one or more representative parties from the class. Reading these two
rules together, we conclude that only the representative parties must be named in the caption of
the complaint, not all class members.
Finally, we turn to the issue of the collection of child support by intervenor DHS. MCL
791.220h and MCL 600.5511 do not resolve this issue because they do not deal with the
collection of child support, but MCL 552.625a does. That statute provides for an automatic lien
on the assets, including settlements and judgments arising from a civil action, of any person
obligated to pay child support once that support becomes due and unpaid. MCL 552.625a(1).
While this statute is somewhat more procedurally complex than the other two statutes involved
in this case, it nonetheless provides a statutory basis under which the DOC may be obligated to
withhold funds from the settlement disbursements and remit them in payment of child support
obligations.
We note that DHS is taking a very flexible and reasonable approach to this issue. While
DHS is not opposed to merely lifting the protective order, it is willing, and indeed had suggested,
a method designed to maximize the security of the identity of the class members and to protect
the privacy of those members who do not have support obligations. It proposed that a limited
number of individuals in the State Court Administrative Office should have access to the names
of the class members, determine which have outstanding support obligations, and institute the
necessary procedures to collect those support obligations from the settlement amount. This
would appear to be a feasible method of ensuring that DHS can exercise its obligations to collect
child support, while maintaining the highest degree of security over the identities of the class
members. It would certainly be more secure and less intrusive than that which DHS is already
empowered to do by statute. Under MCL 400.234(1), DHS’s Office of Child Support is
empowered to request any information or record that assists in implementing the Office of Child
Support Act, MCL 400.231 et seq. from any public or private entity or financial institution. This
would presumably authorize the office to obtain the class member list from the DOC and the
financial institution serving as the escrow agent, and possibly the trial court itself 5 and plaintiffs’
counsel. But we need not decide the scope of DHS’s authority under the statute as it does not
appear that it has invoked its authority under the statute.
In any event, as with our suggestions regarding the oversight of the collection of
restitution, fees and costs, we are not requiring the trial court to adopt the proposed method. If
the parties are able to agree on a different method, they are free to do so. And in the absence of
an agreement, the trial court is free to adopt DHS’s suggestion, or to develop its own method as
long as that method is consistent with this opinion. That is to say, the method must permit DHS
5
Even if the trial court does not currently possess the list of names it is obligated to send notice
to the victims of the class members. This presumably means that at some point, the trial court
will have to possess the names in order to comply with this requirement.
-11-
to effectively collect as much of the support obligation owed by class members as possible from
the proceeds of the settlement and to do so before any further proceeds are distributed.
Finally, we are aware that we are placing on the trial court an unusual burden in
overseeing the collection of the various financial obligations involved in this case, a burden
greater than that which would normally be placed on a trial court that oversees a civil case where
the plaintiff receives an award and happens to owe one or more of the obligations involved in
this case. But the trial court in essence took this burden on itself when it entered the protective
order. We do not disparage the actions of the trial court in doing so as we recognize the reasons
for the protective order. But just as the unique circumstances of this case necessitated the
protective order, they also necessitate greater involvement by the trial court to ensure that the
order does not impede the DOC and DHS from meeting their statutory duties. 6 Moreover, these
unique circumstances do not shield plaintiffs from meeting their financial obligations.
In summary, the DOC is obligated to meet its obligations under MCL 791.220h and MCL
600.5511 to pay from the settlement proceeds any restitution, fees and costs that any class
member is obligated to pay under a judgment of sentence before any future disbursement may be
made to such a class member. If the future amounts due to such a class member are inadequate
to meet those obligations, the DOC shall make reasonable efforts to recover any of the proceeds
previously paid to such a class member to satisfy those obligations. To the extent that the
protective order prevents the DOC from meeting its statutory duty in this respect, the trial court
shall modify the protective order in such a manner that the DOC is able to fulfill its duty.
Similarly, the trial court shall make any necessary modifications to the protective order to ensure
that DHS is able to discharge its duty to collect any outstanding support from class members.
We encourage the parties to arrive at a mutually agreeable method to implement these
requirements. But if the parties are unable to do so, the trial court shall fashion such a method.
In doing so, the trial court shall be guided by the principle that the statutory duties of the DOC
and DHS take priority over the protective order. That is, a settlement agreement cannot relieve a
party (or a nonparty) of a duty imposed by statute. Any agreement must be consistent with the
laws of this state. Furthermore, plaintiffs’ counsel shall not serve as the gatekeeper to determine
which members of the class owe such obligations. While the confidentiality of the identities of
the class members should be maintained to the extent possible, oversight must be provided by
some entity not associated with plaintiffs or the DOC. Finally, if it has not already done so, the
trial court shall promptly send notice to the victims of the class members as required by MCL
600.5511(3).
To ensure that there are no future disbursements in violation of defendant’s and the
intervenor’s statutory duties, we order that any future disbursements under the settlement
agreement are stayed until a procedure is in place that ensures that any outstanding child support,
restitution, costs and fees are collected from the settlement proceeds before the proceeds are
6
And it requires adequate third-party oversight to ensure that those duties are properly
discharged since the normal oversight is hampered by the secrecy imposed by the protective
order.
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disbursed to any class members owing such an obligation. This stay provision shall be given
immediate effect. MCR 7.215(F)(2).
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. No
costs.
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
/s/ Henry William Saad
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