ICLE Homepage | Other New and
Amended MCRs
June 4, 2002
2001-07
Amendment of Rules 7.202, 7.203 and
7.209 of the Michigan Court Rules
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On order of the Court, notice of the proposed
changes and an opportunity for comment in writing and at a
public hearing having been provided, and consideration
having been given to the comments received, the following
amendments of Rules 7.202, 7.203, and 7.209 of the
Michigan Court Rules are adopted, to be effective
September 1, 2002.
[The present language is amended as indicated below.]
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has
been deleted.
Bold text indicates new text.
Rule 7.202 Definitions
For purposes of this subchapter:
(1)- (6) [Unchanged.]
(7) "final judgment" or "final order" means:
(a) In a civil case,
(i) the first judgment or order
that disposes of all the claims and adjudicates the rights and
liabilities of all the parties, including such an order entered
after reversal of an earlier final judgment or order,
[or]
(ii) an order designated as final
under MCR 2.604(B),
(iii) in a domestic
relations action, a postjudgment order affecting the custody
of a minor,
(iv) a postjudgment order
awarding or denying attorney fees and costs under MCR
2.403, 2.405, 2.625 or other law or court rule,
(v) An order denying
governmental immunity to a governmental party, including
a governmental agency, official, or employee;
(b) [Unchanged.]
Rule 7.203 Jurisdiction of the Court of Appeals
(A) Appeal of Right. The court has jurisdiction of an
appeal of right filed by an aggrieved party from the
following:
(1) A final judgment or final order of the circuit
court[,] or the court of claims, [and
recorder's court,] as defined in MCR 7.202(7), except a
judgment or order of the circuit court [or recorder's
court]
(a) on appeal from any other court or
tribunal;
(b) in a criminal case in which the
conviction is based on a plea of guilty or nolo contendere;
An appeal from an order described in MCR
7.202(7)(a)(iii)-(v) is limited to the portion of the order
with respect to which there is an appeal of right.
(2) A judgment or order of a court or tribunal
from which appeal of right to the Court of Appeals has
been established by law or court rule[;].
[(3) In a domestic relations action, a
postjudgment order affecting the custody of a minor.]
[(4) An order awarding or denying
attorney fees and costs under MCR 2.403, 2.405, 2.625 or
other law or court rule.]
(B) - (F) [Unchanged.]
Rule 7.209 Bond; Stay of Proceedings
(A)-(D) [Unchanged.]
(E) Stay of Proceedings by Trial Court.
(1)-(3) [Unchanged.]
(4) If a government party files a claim of
appeal from an order described in MCR 7.202(7)(a)(v), the
trial court shall stay proceedings regarding that party during
the pendency of the appeal, unless the Court of Appeals
directs otherwise.
(F)-(I) [Unchanged.]
Cavanagh, J., states:
I dissent from the adoption of this amendment as
there are no compelling reasons to do so and, unlike most
other jurisdictions, we currently allow leave to appeal from
all interlocutory orders. In its zeal to further protect
government defendants and their insurers, this Court
divined this amendment on its own hook. Upon publication
of this proposal, comments urging its adoption were
received-surprise, surprise-from our Attorney General and
from the Michigan Insurance Federation. A comment from
the Appellate Practice Section Council of the State Bar of
Michigan recommended against its adoption, "because it
will substantially and unnecessarily increase the number of
appeals filed in cases involving governmental parties."
Because of the availability of an application for leave to
appeal, council members felt the proposal unnecessary and
concluded:
The adoption of the proposed
amendment to MCR 7.203 would
reintroduce wasteful, piecemeal appeals in a
large category of cases. We do not believe it
would improve the administration of
appellate justice in this state.
For these same reasons, I dissent from the adoption
of this amendment.
Kelly, J., joins in the statement of Cavanagh, J.
Weaver, J. (dissenting). I dissent from the adoption
of this amendment because it is unnecessary. Unlike many
states that have taken a similar approach, Michigan already
permits the filing of an application for leave from an
interlocutory order. See MCR 7.203(B).
Moreover, the amendment is one-sided, granting
only a governmental party an appeal as of right from an
adverse decision denying governmental immunity. It does
not grant an appeal as of right to a non-governmental party
desiring to challenge an adverse decision finding that suit is
barred by governmental immunity.1
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1 A non-governmental party may be able to pursue
an appeal as of right from an adverse decision that the suit
was barred by governmental immunity, if such finding was
part of a final order disposing of the entire case. See MCR
7.203(A)(1). However, where other claims and/or other
parties are involved, the non-governmental party may be
unable to pursue such an appeal of right. MCR 7.203(A)(1)
only grants an aggrieved party an appeal of right from a
final judgment or order. Unless the judgment or order
disposes of all the claims and adjudicates the rights and
liabilities of all the parties, it is not a final order. See MCR
7.202(7)(a)(i).
Taylor, J. (concurring with rule changes):
It is lamentable that dissenting Justices Cavanagh
and Kelly, rather than focusing on the merits of MCR
7.203, castigate it because of those who ventured opinions
as to the worth of such a rule. Implicit within their dissent
is a scornful predisposition toward government officials
with views on this as well as those who day in and day out
handle cases of this sort. This is unfortunate as would be
the stark categorization of any definable group. It is likely
they would understand this point better if a similar hostility
were shown to a proposal merely because it was backed by
the trade unions, the Michigan Trial Lawyers Association
or the Irish American Lawyers.
In any event, I believe it is preferable to encourage
the perspectives of all who are willing to consider a rule
because it is consistent with representative government
theories and also assists us in our rule-making capacity. In
short, none should be made to feel unwelcome.
Accordingly, to all the organizations, letter writers,
government officials, editorial page commentators and
presenters before this Court, I tender my appreciation for
the benefit of their insight.
Justice Weaver's dissent is based on her view that
the amendments are "one-sided" in providing for an
expedited appeal of immunity issues. However, as
acknowledged in her own footnote, in the vast majority of
covered cases, the plaintiff sues the government in tort
only. That is, they do not couple that claim with a non-tort
claim. In such cases, upon dismissal, the party suing the
government will have an appeal of right from a final order.
In these cases, there is no "one-sidedness" because the
government and the plaintiff have the same claim of appeal.
In those rare cases in which a party suing the government
would not have an immediate appeal by right, because there
are additional claims pending, I note simply that the
fundamental premise of governmental immunity is that the
government is different. Unlike other litigants, the
government cannot be sued, unless, by legislation, it has
affirmatively allowed a particular type of suit to proceed.
This immunity is an ancient concept in our law, but it is of
considerably diminished value when the government, i.e.
the taxpayer, must incur the costs of extended litigation
before being able to invoke the principle of immunity. By
her reference to "one-sidedness," Justice Weaver evidences
a misapprehension of the premises of governmental
immunity itself.
The instant amendments also address the immunity
of individual governmental employees from lawsuit, again
subject to certain statutory exceptions. By far, the greatest
beneficiary of such individual immunity are law
enforcement officers sued for allegedly negligent conduct
in carrying out their professional duties. At least in part,
we suspect, this reality explains the support for these
amendments by the Attorney General.
Before this exchange as to the wisdom of this rule is
closed, it is well stand back and consider its justification.
The rule is designed to allow an appeal of right regarding
the legal question of whether the law of governmental
immunity bars a suit, even if the facts of the case are as a
plaintiff asserts them. It does this by letting the trial
judge's decision on the law concerning immunity be
appealed without the need for the litigants to have to go
through the rigors of a trial on the facts before the legal
issue is determined at the Court of Appeals.
Finally, the Court was advised that the instant
approach to governmental immunity has protected the
taxpayers interests in other states, and accordingly I am
convinced that it gives promise of doing the same in
Michigan. Indeed, in providing for the expedited
consideration of legal issues of immunity, I believe that
these amendments will also result in reduced legal expenses
for those who sue the taxpayer.
Staff Comment: The June 4, 2002, amendments
of MCR 7.202, 7.203, and 7.209, effective September 1,
2002, involve orders appealable by right to the Court of
Appeals.
The provisions concerning custody orders in domestic
relations cases and orders regarding attorney fees and costs
are moved from MCR 7.203(A)(3) and (4) to MCR
7.202(7)(a)(iii) and (iv). There is also a change in the
language regarding fees and costs, to refer to
"postjudgment" orders.
New MCR 7.202(7)(a)(v) includes as "final" an order
denying immunity to a governmental defendant, as is
provided in many jurisdictions. See, e.g., Mitchell v
Forsyth, 472 US 511; 105 S Ct 2806; 86 L Ed 2d 411
(1985).
Language is added to MCR 7.203(A) to make clear that an
appeal from an order described in MCR 7.202(7)(a)(iii)-(v)
is limited to the portion of the order regarding which there
is an appeal of right. In addition, obsolete references to the
recorder's court are deleted from that subrule.
New MCR 7.209(E)(4) provides for a stay with respect to a
governmental party who takes an appeal of right from an
order denying immunity.
The staff comment is published only for the benefit of the
bench and bar and is not an authoritative construction by
the Court.