By Matt Smith
Amidst the September 1, 2018 e-filing uniformity revisions to MCR 1.109, the Michigan Supreme Court inched a bit closer to providing Michigan state court litigators a tool previously reserved for federal practice – the unsworn, un-notarized declaration. For those unfamiliar with this creature of federal statute, please check out the prior post here: https://altiorlaw.com/well-i-declare-of-affidavits-and-declarations/.
Generally, MCR 1.109(D) sets forth “filing standards” for court documents. Within this rule now lies MCR 1.109(D)(3), which provides:
(3) Verification. Except when otherwise specifically provided by rule or statute, a document need not be verified or accompanied by an affidavit. If a document is required or permitted to be verified, it may be verified by
(a) oath or affirmation of the party or of someone having knowledge of the facts stated; or
(b) except as to an affidavit, including the following signed and dated declaration:
“I declare under the penalties of perjury that this _________ has been examined by me and that its contents are true to the best of my information, knowledge, and belief.” Any requirement of law that a document filed with the probate court must be sworn may be also met by this declaration.
While this rule stops short of permitting an unsworn declaration where a rule or statute specifically requires an affidavit per se (i.e., when responding to a motion for summary disposition under MCR 2.116), it permits use of an unsworn, un-notarized declaration in circumstances where “a document is required or permitted to be verified.”
So what, you may ask? Flexibility and convenience for starters. Put yourself in your client or witness’ shoes. When an affidavit is not required, the option of simply signing a declaration without having to locate a notary is convenient. This is doubly true for some international clients where having a signature notarized can be cumbersome. Additionally, a declaration may be used where a verification is required, such as a motion for alternate service (MCR 2.105(I)), a bill of costs (MCR 2.625(G)), and verified complaints requesting the issuance of a temporary restraining order (MCR 3.310(B)). While affidavits were commonplace to satisfy or support such requests, MCR 1.109(D)(3) now makes clear that a declaration will suffice.
While perhaps not as useful as in federal practice – where an unsworn declaration can serve in place of an affidavit – MCR 1.109(D)(3) now places the unsworn declaration in a Michigan state court litigator’s tool box.