ICLE Homepage | Other New and Amended MCRs
April 30, 1997
96-13
Amendments of Michigan Court
Rules 7.204, 7.205, 7.211, 7.212,
and 7.215, and Repeal of
Administrative Order 1994-4
___________________________________
On order of the Court, notice of proposed amendments having
been provided, and consideration having been given to the
comments received in response to that notice, the following
amendments of Rules 7.204, 7.205, 7.211, 7.212, and 7.215 of the
Michigan Court Rules are adopted, and Administrative Order 1994-4
is repealed, effective September 1, 1997.
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
The rules are amended as follows:
Rule 7.204 Filing Appeal of Right; Appearance
(A) - (G) [Unchanged.]
(H) Docketing Statement. In all civil appeals within 28 days
after the claim of appeal is filed, the appellant must file
two copies of a docketing statement with the clerk of
the Court of Appeals and serve a copy on the opposing
parties.
(1) Contents. The docketing statement must contain the
information required from time to time by the Court of
Appeals through the office of the Chief Clerk on forms
provided by the Clerk's office and must set forth:
(a) - (e) [Unchanged.]
(2) - (4) [Unchanged.]
Rule 7.205 Application for Leave to Appeal
(A) - (D) [Unchanged.]
(E) Emergency Appeal.
(1) If the order appealed requires acts or will have
consequences within 56 days of the date the
application is filed, appellant shall alert the
clerk of that fact by prominent notice on the
cover sheet or first page of the application,
including the date by which action is required.
(2) When an appellant requires a hearing on an
application in less than 21 days, the appellant
shall file and serve a motion for immediate
consideration, concisely stating facts showing why
an immediate hearing is required. A notice of
hearing of the application and motion or a
transcript is not required. An answer may be
filed within the time the court directs. If a
copy of the application and of the motion for
immediate consideration are personally served
under MCR 2.107(C)(1) or (2), the application may
be submitted to the court immediately on filing.
If mail service is used, it may not be submitted
until the first Tuesday 7 days after the date of
service, unless the party served acknowledges
receipt. In all other respects, submission,
decision, and further proceedings are as provided
in subrule (D).
(F) - (G) [Unchanged.]
Rule 7.211 Motions in Court of Appeals
(A) - (B) [Unchanged.]
(C) Special Motions. If the record on appeal has not been sent
to the Court of Appeals, except as provided in
subrule (C)(6), the party making a special motion shall
request the clerk of the trial court or tribunal to send the
record to the Court of Appeals. A copy of the request must
be filed with the motion.
(1) - (2) [Unchanged.]
(3) Motion to Affirm. After the appellant's brief has been
filed, an appellee may file a motion to affirm the
order or judgment appealed from on the ground that
(a) it is manifest that the questions sought to be
reviewed are so unsubstantial as to need no
argument or formal submission; or
(b) the questions sought to be reviewed were not
timely or properly raised.
The decision to grant a motion to affirm must be
unanimous. An order denying a motion to affirm may
identify the judge or judges who would have granted it
but for the unanimity requirement of this subrule.
(4) Motion for Peremptory Reversal. The appellant may file
a motion for peremptory reversal on the ground that
reversible error is so manifest that an immediate
reversal of the judgment or order appealed from should
be granted without formal argument or submission.
The decision to grant a motion for peremptory
reversal must be unanimous. An order denying a motion
for peremptory reversal may identify the judge or
judges who would have granted it but for the unanimity
requirement of this subrule.
(5) - (7) [Unchanged.]
(D) - (E) [Unchanged.]
Rule 7.212 Briefs
(A) - (B) [Unchanged.]
(C) Appellant's Brief; Contents. The appellant's brief must
contain, in the following order:
(1) - (3) [Unchanged.]
(4) A statement of the basis of jurisdiction of the Court
of Appeals.
(a) The statement concerning appellate jurisdiction
must identify the statute, court rule, or court
decision believed to confer jurisdiction on the
Court of Appeals and the following information:
(i) - (ii) [Unchanged.]
(iii) in cases where appellate counsel is
appointed, the date the request for
appointment of appellate counsel was
filed;
(iv) in cases where appellate counsel is
retained or the party is proceeding in
pro per, the filing date of the
claim of appeal or the date of the order
granting leave to appeal or leave to
proceed under MCR 7.206.
(b) [Unchanged.]
(5) - (9) [Unchanged.]
(D) - (G) [Unchanged.]
(H) Amicus Curiae.
(1) An amicus curiae brief may be filed only on
motion granted by the Court of Appeals.
The motion must be filed within 21 days
after the appellee's brief is filed. If the
motion is granted, the order will state the
date by which the brief must be filed.
[The time for filing the brief corresponds
with the time for filing the brief of the
party whose position the amicus curiae
supports.]
(2) The brief is limited to the issues raised
by the parties. An amicus curiae may not
participate in oral argument except by court
order.
(I) [Unchanged.]
Rule 7.215 Opinions, Orders, Judgments, and Final Process
from Court of Appeals
(A) - (G) [Unchanged.]
(H) [New] Resolution of Conflicts in Court of Appeals
Decisions.
(1) Precedential Effect of Published Decisions. A
panel of the Court of Appeals must follow the rule
of law established by a prior published decision
of the Court of Appeals issued on or after
November 1, 1990, that has not been reversed or
modified by the Supreme Court, or by a special
panel of the Court of Appeals as []provided
in this rule.
(2) Conflicting Opinion. A panel that follows a prior
published decision only because it is required to do so
by subrule (1) must so indicate in the text of its
opinion, citing this rule and explaining its
disagreement with the prior decision. The panel's
opinion must be published in the official reports of
opinions of the Court of Appeals.
(3) Convening of Special Panel.
(a) Poll of Judges. Within 14 days after release of
the opinion indicating disagreement with a prior
decision as provided in subrule (2), the chief
judge must poll the judges of the Court of Appeals
to determine whether a special panel should be
convened to rehear the case for the purpose of
resolving the conflict that would have been
created but for the provisions of subrule (1).
Special panels may be convened to consider
outcome-determinative questions only.
(b) Order. Immediately following the poll, an order
reflecting the result must be entered. The chief
clerk of the Court of Appeals must provide a copy
of the order to the Clerk of the Supreme Court.
The order must be published in the official
reports of opinions of the Court of Appeals.
(4) Composition of Panel. A special panel convened
pursuant to this rule consists of 7 judges of the Court
of Appeals selected by lot, except that judges who
participated in either the controlling decision or the
opinion in the case at bar may not be selected.
(5) Consideration of Case by Panel. An order directing the
convening of a special panel must vacate the prior
opinion in the case at bar. The parties are permitted
to file supplemental briefs, and are entitled to oral
argument before the special panel unless the panel
unanimously agrees to dispense with oral argument.
(6) Decision. The decision of the special panel must be by
published opinion or order and is binding on all panels
of the Court of Appeals unless reversed or modified by
the Supreme Court.
(7) Rehearing; Appeal. There is no appeal from the
decision of the Court of Appeals as to whether to
convene a special panel. As to the decision in the
case at bar, the time limits for moving for rehearing
or for filing an application for leave to appeal to the
Supreme Court run from the date of the order declining
to convene a special panel or, if a panel is convened,
from the date of the decision of the special panel.
STAFF COMMENT: The April 30, 1997, amendments make
various changes regarding procedure in the Court of Appeals.
There are two changes in MCR 7.204(H) regarding the docketing
statement that must be filed in the Court of Appeals. Two copies
would be required, and the Court of Appeals would be authorized
to require that additional information be included on the
docketing statement form.
The amendment of MCR 7.205(E) requires an appellant to notify the
clerk if the order appealed from requires action or will have
consequences within 56 days of the filing of the application.
The amendments of MCR 7.211(C)(3) and (4) require orders granting
motions to affirm or for peremptory reversal to be unanimous.
The amendment of MCR 7.212(C)(4) requires that the jurisdictional
statement in a brief filed in the Court of Appeals include
information about the date of the request for appointment of
counsel, if applicable.
Under the amendment of MCR 7.212(H), a motion for leave to file
an amicus curiae brief may be filed up to 21 days after the
appellee's brief. Amicus briefs are expressly limited to the
issues raised by the parties.
The provisions of Administrative Order 1994-4, dealing with Court
of Appeals conflict resolution panels, are incorporated into the
court rules as new MCR 7.215(H). Also, such panels are
authorized to dispense with oral argument (by unanimous vote),
and their decisions must be published in Michigan Appeals
Reports.
The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.