December 13, 2000




99-35
99-56

                         
Amendments of Rules 7.202 
and 7.215 of the Michigan 
Court Rules
__________________________________


          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 and
7.215 of the Michigan Court Rules are adopted, to be effective
April 1, 2001.


      [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)  [Unchanged.]

          (b)  In a criminal case,

               (i)   (iii) [Unchanged.]

              (iv)  a sentence imposed, or order entered,
by the trial court following a remand from an appellate court
in a prior appeal of right; or

                    (v)  [Unchanged.]


Rule 7.215     Opinions, Orders, Judgments, and Final Process for
Court of Appeals 

(A)  Opinions of Court.  An opinion must be written and bear the
writer's name or the label "per curiam" or "memorandum" opinion. 
An opinion of the court that bears the writer's name shall be
published by the Supreme Court reporter of decisions.  A
memorandum opinion shall not be published.  A per curiam opinion
shall not be published unless one [The Supreme Court
reporter of decisions shall not publish a per curiam or
memorandum opinion unless a majority] of the
judges deciding the case directs the reporter to do so at the
time it is filed with the clerk.  A copy of an opinion to be
published must be delivered to the reporter no later than when it
is filed with the clerk.  The reporter is responsible for having
those opinions published as are opinions of the Supreme Court,
but in separate volumes containing opinions of the Court of
Appeals only, in a form and under a contract approved by the
Supreme Court.

(B)   (C) [Unchanged.]

(D)  Requesting Publication.

     (1)  Any party may request publication of an authored or per
curiam opinion not designated for publication by

          (a)  filing with the clerk 4 copies of a letter stating
why the opinion should be published, and

          (b)  mailing a copy to each party to the appeal not
joining in the request, and to the clerk of the Supreme Court.

          Such a request must be filed within 21 days after
release of the unpublished opinion or, if a timely motion for
rehearing is filed, within 21 []days after the denial of
the motion.

     (2)  Any party served with a copy of the request may file a
response within 14 days in the same manner as provided in subrule
(D)(1).

     (3)  Promptly after the expiration of the time provided in
subrule (D)(2), the clerk shall submit the request, and any
response that has been received, to the panel that filed the
opinion.  Within 21 days after submission of the request, the
panel shall decide whether to direct that the opinion be
published.  The opinion shall be published only if the panel
unanimously so directs. Failure of the panel to act within 21
days shall be treated as a denial of the request.

     (4)  The Court of Appeals shall not direct publication if
the Supreme Court has denied an application for leave to appeal
under MCR 7.302.

(E)   (I) [Formerly (D)   (H), redesignated, but otherwise        
           unchanged.]


          Kelly, J. dissents in part and states:  I would adopt
proposed MCR 7.215(D) as published for comment, but modified to
allow a request for publication to be filed by anyone within 42
days of release of the opinion and to permit two judges on the
panel to grant the request.

Staff Comment: 

The December 13, 2000, amendments of MCR 7.202 and 7.215,
effective April 1, 2001, make several changes regarding procedure
in the Court of Appeals.

The amendment of MCR 7.202(7)(b)(iv) makes certain orders entered
by the trial court on remand from an appellate court appealable
by right.

The amendment to MCR 7.215(A) permits a single judge of the Court
of Appeals panel to designate an opinion for publication.

New MCR 7.215(D) re-establishes a procedure under which a party 
may request publication of a Court of Appeals opinion that was
not initially designated for publication.  The former provision 
was deleted in 1995.

  
The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.