ICLE Homepage | Other Administrative Orders
November 9, 2006
ADM File Nos. 2002-34, 2002-44
Second Amended Administrative Order No. 2004-5
Expedited Summary Disposition
Docket in the Court of Appeals
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[Italicized, bracketed text] indicates text that has been deleted.
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Pursuant to Administrative Order No. 2004-5, this Court adopted an expedited summary
disposition docket in the Court of Appeals to take effect on January 1, 2005, and to expire on
December 31, 2006. On December 21, 2005, Amended Administrative Order No. 2004-5
was adopted to take effect January 1, 2006. We now order that the expedited summary
disposition docket continue in effect, as modified infra, for an additional one-year period to
expire December 31, 2007[twelve-month period].
Although the Court of Appeals has failed to meet the stated objectives for this pilot
program during its existence, the Court is persuaded to approve the extension of the expedited
summary disposition docket because the Court of Appeals Work Group (which consists of
members of the Court of Appeals, Court of Appeals staff members, and members of the Appellate
Practice Section) unanimously recommended the extension in anticipation that the newest
recommended changes will permit the program to meet its goals. The Court of Appeals and
members of the bar should not presume that this extension in any way signals the Court's intention
to eventually make the program permanent, particularly if it does not meet its intended goal of
reducing appellate delay in the Court of Appeals during this additional year of experimentation.
1. Applicability. This second amended administrative order applies to
appeals filed on or after January 1, 2007[6], arising solely from
orders granting or denying motions for summary disposition under MCR 2.116.
Unless otherwise removed by order of the Court of Appeals,
[T]these appeals shall [are to] be placed on an
expedited appeal track under which they shall generally be briefed, argued, and
disposed of within six months of filing. A motion to remove is required for a
party to divert such an appeal[s] to the standard appeal
track.
2. Time Requirements. Appeals by right or by leave in cases covered by this
second amended order must be taken within the time stated in MCR
7.204 or MCR 7.205. Claims of cross-appeal must be filed within the time
stated in MCR 7.207.[14 days after the claim of appeal is filed with the
Court of Appeals or served on the cross-appellant, whichever is later, or within
14 days after the clerk certifies the order granting leave to appeal.
]3. Trial Court Orders on Motions for Summary Disposition. If the trial court
concludes that summary disposition is warranted under MCR 2.116(C), the court
shall render judgment without delay in an order that specifies the subsection of
MCR 2.116(C) under which the judgment is entered.
4. Claim of Appeal—Form of Filing. With the following exceptions, a claim of appeal
filed under this order shall conform in all respects with the requirements of MCR
7.204.
(A) A docketing statement is [will]not [be ]required
[as long as the case proceeds on the summary disposition track
]unless the case is removed by order before the filing of the
appellant's brief.
(B) When the claim of appeal is filed, it shall be accompanied by:
(1) evidence that the transcript of the hearing(s) on the motion for
summary disposition has been ordered, or
(2) a statement that there is no record to transcribe, or
(3) the stipulation of the parties that the transcript has been waived.
Failure to file one of the above three documents with the claim of appeal will not
toll subsequent filing deadlines for transcripts or briefs. Sustained failure to provide
the required documentation may result in dismissal of the appeal under MCR
7.201(B)(3), as long as the Court of Appeals provides a minimum 7-day warning.
5. Application for Leave—Form of Filing. An application for leave to appeal, or an
answer to an application for leave to appeal, filed under this second amended
administrative order shall conform in all pertinent respects with the requirements
of MCR 7.205. At the time an application or an answer is filed, the filing party
must provide the Court of Appeals with 5 copies of that party's trial court
summary disposition motion or response, brief, and appendices.
6. Claim of Cross-Appeal. [Subject to the filing deadline contained in section 2,
a] A claim of cross-appeal filed under this second
amended administrative order shall conform in all [other ]pertinent
respects with the requirements of MCR 7.207. Upon the filing of a claim of
cross-appeal in an appeal proceeding on the summary disposition track, the Court
will remove the case from the track as provided in section 7, if it determines that
the case is no longer appropriate for the track.
7. Removal from Summary Disposition Track. A party may file a motion, or the
Court may act sua sponte, to remove [the] a case from the
summary disposition track to the standard track.
(A) Time to File. A motion to remove may be filed by any party at any time.
[However, filing of the motion most closely in time to discovery of the
basis for removal will maximize the likelihood that the motion will be
granted.]
(B) Form. Motions to remove shall concisely state the basis for removal, and
must be in the form prescribed by the Court of Appeals. [This form
shall include a statement advising whether the appellee is expected to
oppose the motion. ]Factors that weigh in favor of removal
include:
(1) the length of one or more briefs exceeds 25 pages;
removal of the case from the summary disposition track becomes
more likely as the briefs approach the 35-page limit under section
9(C),
(2) the lower court record consists of more than 3
moderately sized files and more than 100 pages of transcripts
from the relevant hearing(s) and deposition(s),
(3) there are more than four issues to be decided, and
(4) one or more of the issues are matters of first
impression, including the first interpretation of a statute, or are
factually or legally complex.
(C) Fee. No fee is required for a motion to remove from the
summary disposition track.
([C ]D) Answer. An answer to a motion to remove must
be filed within 7 days after service of the motion.[ If applicable, the
answer should state whether the appellee is expected to file a claim of
cross-appeal. ]
[(D ]E) Disposition. Motions to remove shall be
liberally granted. Within 14 days after the filing of the motion to
remove, the Court of Appeals shall issue an order disposing of the motion
and setting the time for further filings, if any, in the case. The time
for further filings in the case will commence on the date of certification of
the order on the motion.
([E ]F) Docketing Statement. If the case is removed from
the summary disposition track before the filing of the appellant's
brief, a docketing statement must be filed within 14 days after the
date of certification of the order on the motion.
([F] G) Administrative Removal. The Court of Appeals
will [may ]remove a case from the summary disposition
track [at any time], on its own motion, if it appears to the Court
that the case is not an appropriate candidate for processing under this
second amended administrative order. Such administrative
removal may be made at any time, even after the parties' briefs are
filed.
([G]H) Effect of Removal. If the Court of Appeals
removes a case from the summary disposition track before the filing
of the appellant's brief, the parties are entitled to file briefs in accordance
with the time requirements and page limitations set forth in MCR 7.212.
New or supplemental briefs shall not be permitted in cases removed from
the summary disposition track after the filing of the parties' briefs except
upon motion of a party and further order of the Court. [the order
shall state whether, and the deadlines by which, the parties are entitled to
file briefs in accordance with the time and page limitations set forth in
MCR 7.212.]
8. Transcript—Production for Purposes of Appeal.
(A) Appellant.
(1) The appellant must order the transcript of the hearing(s) on the
motion for summary disposition before or contemporaneously
with the filing of the claim of appeal or application for leave to
appeal, unless there is no record to transcribe or all parties to the
appeal stipulate that the transcript is unnecessary.
(2) Evidence that the transcript was ordered must be filed with the
claim of appeal or application for leave to appeal. Appropriate
evidence of the ordering includes (but is not limited to) the
following:
(a) a letter to the specific court reporter requesting the
specific hearing dates and enclosing any required
deposit[;], or
(b) an "Appeal Transcript, Demand, Order and
Acknowledgment" form, or
(c) a [C]court reporter or recorder's
certificate.
(3) If the transcript is not timely filed, the appellant or an appellee may
file an appropriate motion[s] with the Court of Appeals at
any time. Avoiding undue delay in filing the motion under the
circumstances of the case, and concisely stating the specific basis
for it, will maximize the likelihood that the motion will be granted.
(4) If an appropriate motion is filed, the order disposing of such
motion shall state the time for filing any outstanding brief(s).
(5) Absent an order of the Court of Appeals that resets the time,
[and ]the appellant's brief will be due as provided in
section 9(B)(1), regardless of whether the ordered transcript
is timely filed.[, the time for filing the appellant's brief will
commence on the date the claim of appeal was filed or the order
granting leave was certified. In such event, the appellant's brief
shall be filed within 56 days after the claim of appeal was filed or
28 days after certification of the order granting leave to appeal.
See Section 9(B)(1).]
(B) Appellee.[ ]
(1) If the transcript has been ordered by the appellant but is not filed
by the time the appellant's brief is served on an appellee, the
appellee may file an appropriate motion with the Court of
Appeals. Avoiding undue delay in filing the motion under the
circumstances of the case, and concisely stating the specific basis
for it, will maximize the likelihood that the motion will be granted.
(2) If an appropriate motion is filed, the order shall state the time for
filing any outstanding appellee briefs.
(C) Court Reporter. The court reporter or recorder shall file the transcript with
the trial court or tribunal within 28 days after it is ordered by either the
appellant or the appellee. The court reporter or recorder shall conform in
all other respects with the requirements of MCR 7.210.
(D) Transcript Fee. The court reporter or recorder shall be entitled to the sum
of $3.00 per original page and 50 cents per page for each copy for
transcripts ordered in appeals processed under the expedited docket, if
the transcript is filed within 28 days after it was ordered. If the court
reporter or recorder does not file the transcript within 28 days after it was
ordered, the rate will remain $1.75 per original page and 30 cents per
page for each transcript, as set by MCL 600.2543.
9. Briefs on Appeal.[ ]
(A) With the following exceptions, the parties' briefs shall conform to the
requirements of MCR 7.212.
(B) Time For Filing.
(1) In appeals by right, the appellant's brief shall be filed within 56
days after the claim of appeal is filed, or as ordered by the Court.
In appeals by leave, the appellant's brief shall be filed within 28
days after the order granting leave is certified, or as ordered by
the Court. In appeals by leave, the appellant may rely on the
application for leave to appeal rather than filing a separate brief by
timely filing 5 copies of the application for leave to appeal with a
new cover page indicating that the appellant is relying on the
application in lieu of filing a brief on appeal. The cover page
should indicate whether oral argument is requested or is not
requested. MCR 7.212(C)(1).
(2) The appellee's brief shall be filed within 28 days after the
appellant's brief is served on the appellee, or as ordered by the
Court. In appeals by leave, the appellee may rely on the answer
to the application for leave to appeal rather than filing a separate
brief by timely filing 5 copies of the answer to the application for
leave to appeal with a new cover page indicating that the appellee
is relying on the answer to the application in lieu of filing a brief on
appeal. The cover page should indicate whether oral argument is
requested or is not requested. MCR 7.212(C)(1) and (D)(1).
(3) Time for filing any party's brief may be extended for 14 days on
motion for good cause shown[, filed within the original brief
filing period]. If the motion is filed by the appellant within the
original brief-filing period, the motion will toll the time for any
sanctions for untimely briefs. A motion may include a statement
from opposing counsel that counsel does not oppose the 14-day
extension. A motion to extend the time for filing a brief will be
submitted for disposition forthwith; opposing counsel need not file
an answer.
(4) If the appellant's brief is not filed within 7 days after the date due,
the Court of Appeals shall issue an order assessing costs and
warning the appellant that the case will be dismissed if the brief is
not filed within [14 ]7 days after the clerk's
certification of the order [deadline]. If the brief is not
filed within that [14 ]7-day period, the Court of
Appeals shall issue an order that dismisses the appeal and that
may assess additional costs.
(C) Length and Form. Briefs filed under this second amended
administrative order are limited to 35 pages, double-spaced, exclusive of
tables, indexes, and appendices. At the time each brief is filed, the filing
party must provide the Court of Appeals with that party's trial court
summary disposition motion or response, brief, and appendices. Failure
to file these documents at the time of filing the appellant's brief will not
extend the time to file the appellee's brief.[, however.
Provided such omission is noted appropriately in the appellee's brief, the
appellee may omit these appendices if they were included with the
appellant's brief.] If the appellant filed copies of the appellee's
summary disposition response, brief, and appendices, the appellee may
omit these documents provided that appellee notes the omission
prominently on the title page of the appellee's brief.[
](D) A reply brief may be filed within 14 days after the appellee's brief
is served on the appellant, and is limited to 5 pages, double-spaced,
exclusive of tables, indexes, and appendices.
10. Record on Appeal. The Court of Appeals shall request the record on appeal from
the trial court or tribunal clerk 28 days after jurisdiction has been confirmed and
material filing deficiencies have been corrected. The trial court or tribunal clerk
shall transmit the record as directed in MCR 7.210(G).
11. Notice of Cases. Within 7 days after the filing of the appellee's brief, or after the
expiration of the time for filing the appellee's brief, the clerk shall notify the parties
that the case will be submitted as a "calendar case" on the summary disposition
track.
12. Decision of the Court. The opinion or order of the panel shall be issued no later
than 35 days after submission of the case to, or oral argument before, a panel of
judges for final disposition.
This amended order will remain in effect until December 31, 2007[6],
during which time the Court of Appeals Work Group will monitor the expedited docket
program. If, at any time during that monitoring process, it becomes apparent to the work
group that procedural aspects of the program need to be modified, the group is
encouraged to seek authorization from this Court to implement modifications. The work
group will provide this Court with [written updates on the pilot program ]a
written report by November 1, 2007, for this Court's use in [before the one-year
and eighteen-month anniversaries of the program's implementation. At the end of the two-
year pilot period, this Court will evaluate] evaluating expedited processing
of summary disposition appeals to determine whether the procedure will be discontinued,
changed, or continued.
Cavanagh, J., concurs in the extension.
Original Staff Comment: This is a new procedure requested by the Court of
Appeals for the processing of appeals from orders granting or denying summary disposition. The
new procedure applies to appeals filed after January 1, 2005. The procedure will be in effect for
a two-year pilot period with ongoing monitoring by the delay reduction work group. That group
will provide updates to the Court before the one-year and eighteen-month anniversaries of the pilot
period. The group is authorized, during the two-year pilot period, to seek from the Court
modification of the expedited docket procedures.
The transcript rate is authorized by statute. 2004 PA 328.
The Court of Appeals offered the following explanation of the expedited docket procedure:
The Court of Appeals estimates that summary disposition appeals make up about 50% of
the Court's nonpriority civil cases. The procedure proposed by the Court's Case Management
Work Group and announced in this administrative order is structured to facilitate disposition of
eligible appeals within about 180 days after filing with the Court of Appeals. The work group's
report can be accessed on the Court of Appeals website at
http://courtofappeals.mijud.net/resources/specialproj.htm.
The procedure announced here is intended to apply to appeals arising solely from orders
on motions for summary disposition. Orders that reference other issues between the parties will not
be eligible for this track. If an eligible appeal is deemed to be inappropriate for the expedited
docket, the Court can remove it, either on its own motion or on motion of one or both of the
parties. Such motions must be in the form prescribed by the Court of Appeals. See
http://courtofappeals.mijud.net/resources/forms.htm.
The procedure encourages parties to evaluate whether a transcript of hearing(s) on the
motion would be helpful on appeal. If little was stated on the record, or there is nothing to be
gained from the transcript, it can be waived. In such cases, the appellant's brief (accompanied by
the appellant's trial court motion, brief, and appendices) will be due within 28 days after filing the
claim of appeal or entry of an order granting leave to appeal. If the transcript is ordered, it will be
due within 28 days, with the appellant's brief due 28 days later. The appellee's brief (accompanied
by its trial court motion, brief, and appendices) will be due 21 days from service of the appellant's
brief. Motions to extend the time for filing briefs will be granted only on good cause shown and,
generally, only for a maximum of 14 days. As a general matter, good cause will be limited to
unexpected events that directly affect the ability to timely file the brief. When the motion is premised
on work load considerations, at a minimum the motion should identify the cases and the courts
in which filing deadlines are converging and specify the least amount of time that would be required
to file the brief. Once briefing has been completed, the case will be referred to the Court's
research attorneys for an expedited review and it will then be submitted to a panel of judges for
disposition.
The staff comment is not an authoritative construction by the Court.
Staff Comment for amended order: The amendments require an appellant to
order the transcripts or the preparation of transcripts may be waived by stipulation. Evidence of
ordering the transcripts must be filed with the claim of appeal or application for leave to appeal.
Provisions also are added to allow appropriate motions if ordered transcripts are not timely filed.
If the transcript was not filed by the time the appellant's brief was served on multiple appellees,
only one appellee needs to file an appropriate motion. The order on the motion will state the
deadline for filing any outstanding briefs.
The amendments identify the trial court documents that must be appended to applications
for leave to appeal and answers filed in response.
A party may file a motion to remove a case from the expedited summary disposition docket
at any time, not just within a narrow time period. The amendments require the order of removal to
state whether, and the deadlines by which, parties may file standard briefs.
The amendments provide that an appellant's brief will be due in 56 days from the claim of
appeal or 28 days from the order granting leave to appeal. An appellee's brief will be due in 28
days from service of the appellant's brief.
The amendments allow an appellee to omit appendices if the documents were appended
to the appellant's brief.
The amendments delete many filing deadlines for motion practice under the rule. Instead,
pertinent provisions indicate that filing a motion most closely in time to discovery of the basis for
it will maximize the likelihood that it will be granted.
The staff comment is not an authoritative construction by the Court.
Staff Comment for second amended order: After 18 months' experience with
the expedited track, the Case Management Work Group has reviewed Court data indicating that
the expedited track has attracted substantially more filings than had been projected and that only
29 percent of the expedited track cases are being disposed within 180 days of filing. Court data
also indicates that roughly 30 percent of the cases on the expedited track are quantifiably more
difficult cases than the Work Group had anticipated would be filed on the track.
In the early months of the program, the Court made a significant effort to discourage parties
and attorneys from filing motions to remove cases from the track. Further, although the original and
amended administrative order authorized the Court to administratively remove cases from the track
at any time, in fact the Court rarely exercised that authority because of a perception that it would
be unfair to remove a case that the parties and attorneys had succeeded in briefing on the shortened
timeline. These two policies undoubtedly led to the large number of nonroutine appeals that
continued on the track from filing to disposition.
Now, in an effort to continue to provide practitioners and parties with a properly
functioning expedited track for processing routine appeals from orders granting or denying
summary disposition, the work group proposes to modify the track to facilitate motions to remove
so that cases that are inappropriate for the track can be diverted to the standard track as easily as
possible. Further, the Court also will more actively exercise its existing authority to remove cases
that are too complex for expedited processing.
As standards for determining whether a case should be removed from the track, the second
amended administrative order states that parties and practitioners should focus on markers such
as:
1. Brief Length—one or more of the briefs are more than 25 pages in length.
2. Lower Court Record—there are more than one to three moderately sized lower court files
and more than 100 pages of transcript from the relevant motion hearing(s) and
deposition(s).
3. Issues Raised on Appeal—there are more than four issues and one or more of the issues
involve (i) matters of first impression, including the first-time construction of a Michigan
statute or court rule, and (ii) complex facts or law. Additional issues may be allowed if
they are merely separate factual challenges involving the same general area of law.
Further, the Court of Appeals notes that Case-Type Codes also offer some guidance in this area.
Summary disposition appeals in cases that fall within one of the following case-type codes have
often proven to be factually or legally complex, and thus may be inappropriate for the track: AA,
AS, AW, CB, CD, CH, CL, CP, DE, MK, MM, MT, MZ, ND, NS, NZ, PZ, TI, and TV.
In more specific detail, the following changes are proposed in the second amended administrative
order:
4. It will run for a period of 12 months from January 2007 through December 2007.
5. It will apply to cases filed on or after January 1, 2007. Note, however, that qualifying
summary disposition applications for leave to appeal that are pending on January 1 can
continue to be ordered onto the track by the panel if leave is granted.
6. The time for filing a claim of cross-appeal is changed from 14 days to 21 days to conform
with MCR 7.207.
7. A motion to remove from the track may still be filed by any party, but no motion fee will
be required. As noted above, the second amended administrative order recites specific
criteria to be applied by parties and attorneys in making this request that are derived from
case data gathered in the first 18 months of the experimental program. These criteria
reflect quantifiable differences between routine and nonroutine appeals from orders on
summary disposition motions. Parties and attorneys are urged to carefully apply these
criteria so that nonroutine cases, which are inappropriate for expedited processing by the
Court, are removed from the track as early as possible in each appeal.
8. Absent a party's motion to remove, the Court will exercise its administrative removal
authority at any time, even if the determination cannot be made until after the parties have
filed their briefs. This authority is essential to the Court's ability to manage the expedited
track so that routine summary disposition appeals can be disposed within 180 days of
filing.
9. The time for filing appellant's brief that was previously stated in section 8(A)(5), Transcript
Production, has been replaced with a cross reference to the primary statement of time for
filing in section 9(B)(1), concerning Briefs on Appeal.
10. Under the current administrative order, if appellant's brief is not filed within 7 days after
the due date, and a warning order is issued under Sec. 9(B)(4), the order must direct that
the brief be filed within 14 days of the original deadline, more than 7 days of which have
already elapsed by operation of the provision. The proposed amendment will provide
appellant with 7 days from the date of the order in which to file the brief and avoid
dismissal.
11. Briefs filed under the second amended administrative order are still limited to 35 pages.
However, the Court of Appeals notes that case data gathered in the first 18 months of the
experimental program indicates that appellants' briefs in the bulk of the nonroutine
summary disposition appeals exceeded an average of 20-21 pages in length. The most
complex appeals averaged 35 pages. Thus, one of the removal factors listed in section
7(B) is that the length of one or both briefs exceeds 25 pages. In the Court's view, a case
that cannot be briefed in 25 pages is usually not appropriate for continued placement on
the track.
12. Briefs on appeal must be accompanied by the filing party's trial court summary disposition
documents. Appellee can omit these appendices if they were filed by appellant, but
appellee must note the basis for the omission on the title page of its brief.