ICLE Homepage | Other New and Amended MCRs
October 27, 1998
98-21
98-33
98-39
Proposed Amendments of Michigan
Court Rules 7.201, 7.202, 7.203,
7.210, 7.212, 7.215, 7.217, and 8.105
_____________________________________
On order of the Court, this is to advise that the Court is
considering proposed amendments to Michigan Court Rules 7.201,
7.202, 7.203, 7.210, 7.212, 7.215, 7.217, and 8.105. Before
determining whether the proposals should be adopted, changed
before adoption, or rejected, this notice is given to afford any
interested person the opportunity to comment on the form or the
merits of the proposals. We welcome the views of all who wish to
address the proposals or who wish to suggest alternatives.
The rules would be amended as follows:
ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been
deleted.
Bold text indicates new text.
Rule 7.201 Organization and Operation of Court of Appeals
(A) [Unchanged.]
(B) Court of Appeals Clerk; Place of Filing Papers; Fees.
(1) - (2) [Unchanged.]
(3) If a case is accepted for filing without all of the
required documents, transcripts, or fees, the
appellant, or the plaintiff in an original action under
MCR 7.206, must supply the missing items within 21 days
after the date of the clerk's notice of deficiency.
The chief judge or another designated judge may
dismiss the appeal and assess costs if the deficiency
is not remedied within that time.
(C) - (H) [Unchanged.]
Rule 7.202 Definitions
For purposes of this subchapter:
(1) - (5) [Unchanged.]
[(6) "signed" means the original signature (facsimile
signature is not permitted) of the attorney for a party
or the signature of a party proceeding on the party's
own behalf;]
(6) - (7) [Formerly (7) - (8), redesignated, but otherwise
unchanged.]
Rule 7.203 Jurisdiction of the Court of Appeals
(A) - (E) [Unchanged.]
(F) Dismissal.
(1) The chief judge or another designated judge may,
acting alone, dismiss an appeal or original
proceeding for lack of jurisdiction.
(2) The appellant or plaintiff may file a motion for
reconsideration within 21 days after the date of
the order of dismissal. The motion shall be
submitted to a panel of 3 judges. No entry fee is
required for a motion filed under this subrule.
(3) The clerk will not accept for filing a motion for
rehearing of an order issued by a 3-judge panel
that denies a motion for reconsideration filed
under subrule (2).
Rule 7.210 Record on Appeal
(A) - (G) [Unchanged.]
(H) Transmission of Record. Within 21 days after the briefs
have been filed or the time for filing the appellee's brief
has expired, or when the court requests, the trial court or
tribunal clerk shall send to the Court of Appeals the record
on appeal in the case pending on appeal, except for those
things omitted by written stipulation of the parties.
Weapons, drugs, or money are not to be sent unless the Court
of Appeals requests. The trial court or tribunal clerk
shall append a certificate identifying the name of the case
and the papers with reasonable definiteness and shall
include as part of the record:
(1) a chronological list of docket entries in the
case[;], which shall include
identification of:
(a) the date of "entry" of all orders, judgments,
pleadings or other documents into the file and
records of the trial court or tribunal [see MCR
7.202(2)];
(b) the title of all pleadings and documents
filed with the court or tribunal, including a
designation of which party or person filed
the same;
(c) precise description of all opinions,
findings, orders, and judgments of the court
or tribunal, including the name of the
presiding judge, the result and prevailing
party,
(d) precise description of all courtroom hearings
held on the record, including the name of the
presiding judge, the result and prevailing
party, and the name and number of the
responsible court reporter/recorder or
transcript typist;
(e) precise description of all courtroom hearings
that were scheduled but not heard, with the
notation, "No record made";
(2) all opinions, findings, and orders of the court or
tribunal; and
(3) the order or judgment appealed from.
Transcripts and all other documents which are part of the
record on appeal must be attached in one or more file
folders or other suitable hard-surfaced binders showing the
name of the trial court or tribunal, the title of the case,
and the file number.
(I) - (J) [Unchanged.]
Rule 7.212 Briefs
(A) - (B) [Unchanged.]
(C) Appellant's Brief; Contents. The appellant's brief must
contain, in the following order:
(1) - (5) [Unchanged.]
(6) A statement of facts that must be a clear, concise, and
chronological narrative. All material facts, both
favorable and unfavorable, must be fairly stated
without argument or bias. The statement must contain,
with specific page references to the [record]
transcript, the pleadings, or other document or
paper filed with the trial court,
(a) the nature of the action;
(b) the character of pleadings and proceedings;
(c) the substance of proof in sufficient detail to
make it intelligible, indicating the facts that
are in controversy and those that are not;
(d) the dates of important instruments and events;
(e) the rulings and orders of the trial court;
(f) the verdict and judgment; and
(g) any other matters necessary to an understanding of
the controversy and the questions involved;
(7) The arguments, each portion of which must be prefaced
by the principal point stated in capital letters or
boldface type. As to each issue, the argument must
include a statement of the applicable standard or
standards of review and supporting authorities. Facts
stated must be supported by specific page references to
the [record] transcript, the pleadings, or
other document or paper filed with the trial court.
Page references to the [record must also be given to
show whether the issue was preserved for appeal by
appropriate objection or by other means]
transcript, the pleadings, or other document or
paper filed with the trial court must also be given to
show whether the issue was preserved for appeal by
appropriate objection or by other means. If
determination of the issues presented requires the
study of a constitution, statute, ordinance,
administrative rule, court rule, rule of evidence,
judgment, order, written instrument, or document, or
relevant part thereof, this material must be reproduced
in the brief or in an addendum to the brief. If an
argument is presented concerning the sentence imposed
in a criminal case, the appellant's attorney must send
a copy of the presentence report to the court at the
time the brief is filed;
(8) - (9) [Unchanged.]
(D) Appellee's Brief; Contents.
(1) - (2) [Unchanged.]
(3) Unless under the headings "Statement of Questions
Involved" and "Statement of Facts" the appellee accepts
the appellant's statements, the appellee shall
include:
(a) a counter-statement of questions involved, stating
the appellee's version of the questions involved;
and
(b) a counter-statement of facts, pointing out the
inaccuracies and deficiencies in the appellant's
statement of facts without repeating that
statement and with specific page references to the
[record] transcript, the pleadings, or
other document or paper filed with the trial
court, to support the appellee's assertions.
(E) - (I) [Unchanged.]
Rule 7.215 Opinions, Orders, Judgments, and Final Process
from Court of Appeals
(A) - (G) [Unchanged.]
(H) Resolution of Conflicts in Court of Appeals Decisions.
(1) - (2) [Unchanged.]
(3) Convening of Special Panel.
(a) Poll of Judges. Except as provided in subrule
(3)(b), [W] within [14]
28 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 the particular question is both outcome
determinative and warrants convening 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) Effect of Pending Supreme Court Appeal. No
poll shall be conducted and a special panel shall
not be convened if, at the time the judges are
required to be polled, the Supreme Court has
granted leave to appeal in the controlling case.
(c) [Formerly (b), redesignated but otherwise
unchanged.]
(4) [Unchanged.]
(5) Consideration of Case by Panel. An order directing the
convening of a special panel must vacate only that
portion of the prior opinion in the case at
bar[.] addressing the particular question
that would have been decided differently but for the
provisions of subrule (1). The special panel shall
limit its review to resolving the conflict that would
have been created but for the provisions of subrule (1)
and applying its decision to 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. The special panel shall return to
the original panel for further consideration any
remaining, unresolved issues, as the case may
require.
(6) [Unchanged.]
(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 special
panel is convened, from the date of the decision of the
special panel, except that, if the case is returned
to the original panel for further consideration in
accordance with subrule (5), the time limits shall run
from the date of the original panel's decision, after
return from the special panel.
Rule 7.217 Involuntary Dismissal of Cases
(A) Dismissal. If the appellant, or the plaintiff in an
original action under MCR 7.206, fails to order a
transcript, file a brief, or comply with court rules, the
clerk will notify the parties that the appeal may be
dismissed for want of prosecution unless the deficiency is
remedied within 21 days after the date of the clerk's notice
of deficiency. If the deficiency is not remedied within
that time, the chief judge or another designated
judge may dismiss the appeal for want of prosecution.
(B) [Unchanged.]
(C) Other Action. In all instances of failure to prosecute an
appeal to hearing as required, the [court] chief
judge or another designated judge may take such other
action as [it deems] is deemed appropriate.
(D) [Unchanged.]
Rule 8.105 General Duties of Clerks
(A) [Unchanged.]
(B) Filing of Papers. The clerk shall endorse on every paper
the date on which it is filed. The clerk shall keep a file
folder for each action, bearing the civil action number
assigned to it, in which the clerk shall keep all pleadings,
process, orders, and judgments filed in the action. The
clerk may not permit any record or paper on file in the
clerk's office to be taken from it without the order of the
court, except as permitted by MCR 7.210(E), (F), and
(H).
(C) - (H) [Unchanged.]
Kelly, J., would not publish proposed MCR 7.203(F) for
comment.
STAFF COMMENT:
This group of proposed amendments deal with various matters
regarding appellate procedure. The following rules would be
affected:
MCR 7.201(B), 7.217(A) and (C) -- Permit the Chief Judge, or
another designated judge, acting alone, to enter certain orders
when a party does not proceed in accordance with the rules.
MCR 7.202(6) -- Delete the definition of "signed" from the rule.
New MCR 7.203(F) -- Permit the chief judge, or another designated
judge, acting alone, to dismiss an appeal or original proceeding
for lack of jurisdiction, and create a procedure for the
appellant or plaintiff to seek reconsideration of that decision.
MCR 7.210(H)(1) -- Specify the form and content of the lower
court docket entries that must be supplied with the record on
appeal.
MCR 7.212(C) and (D) -- Clarify the requirement of specific page
references to the record in appellate briefs.
MCR 7.215(H) -- Modify several provisions in the rule governing
resolution of conflicts in Court of Appeals decisions.
MCR 8.105(B) -- Make clear that trial court clerks may permit
records to be removed from the clerk's office for certain
purposes relating to appeals, despite the general prohibition on
removal of files.
The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.
_____________________________________________
Publication of these proposals does not mean
that the Court will issue an order on the
subject, nor does it imply probable adoption
in their present form. Timely comments will
be substantively considered, and your
assistance is appreciated by the Court.
_______________________________________________
A copy of this order will be given to the secretary of the
State Bar and to the State Court Administrator so that they can
make the notifications specified in MCR 1.201. Comments on the
proposals may be sent to the Supreme Court clerk within 60 days
after they are published in the Michigan Bar Journal. When
submitting a comment, please refer to our file Nos. 98-21, 98-33,
and 98-39.