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The Insider's Guide to the Michigan Appellate Courts

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The Insider's Guide to the Michigan Appellate Courts The Insider’s Guide to the Michigan Appellate Courts _____________________________ By Gaëtan Gerville-Réache & John J. Bursch Gaëtan Gerville-Réache is a partner in the Appellate and Supreme Court Practice Group at Warner Norcross & Judd and past-Chair of the Appellate Practice Section for the State Bar of Michigan. He also currently sits on the Military Appeals Tribunal for the Michigan Department of Military and Veterans Affairs. Gaëtan has handled appeals involving more than $100 million in controversy and multi-billion-dollar projects at stake. He has been recognized by his peers as a Michigan Super Lawyer for his experience and acumen in appellate law. John J. Bursch served as Michigan’s 10th Solicitor General and was a longtime partner at Warner Norcross. He now practices as a solo appellate attorney in Caledonia, Michigan. This Guide was originally printed as Chapter 38 of the Council of Appellate Lawyers Appellate Practice Compendium, Published by the American Bar Association in 2012. This online version has been revised to reflect recent rule changes. Current through court rule amendments effective on or before October 25, 2016. The Insider’s Guide to the Michigan Appellate Courts _____________________________ I. Appellate Resources A. Court Websites and Dockets. The official website of the Michigan appellate courts is Hot Tip: For analysis of and links to http://courts.michigan.gov/, where attorneys can find Michigan appellate opinions and opinions, recent and proposed court rule changes, sta- orders, visit the One Court of Justice tistical reports, biographies, and many other sources Blog at www.ocjblog.com. of information divided between two separate web- sites, one for the Michigan Court of Appeals, and one for the Michigan Supreme Court. Attorneys can search dockets online at http://courts.michigan.gov/opinions_orders/case_search/pages/default.aspx by case number, party name, or attorney. Although the online dockets do not yet contain hyperlinks to pleadings, as in PACER, they do contain links to official opinions and orders. In addition, the Michigan Supreme Court posts the briefing in any case where it has scheduled oral argument. Links to the individual cases scheduled for oral argument can be found at http://courts.mi.gov/courts/michigansupremecourt/oral-arguments/pages/default.aspx. B. Practice Guides. Chief among practice guides, the official Michigan Rules of Court (Michigan Court Rules or “M.C.R.”) are available online at http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Pages/current-court-rules.aspx. The Michigan Court of Appeals also publishes online its Internal Operating Procedures (“I.O.P.”), http://courts.mi.gov/courts/coa/clerksoffice/pages/iop.aspx, which provide additional guidance for interpreting the Michigan Court Rules and insight into how the court of appeals processes cases. There are three unofficial guides for advocates practicing in the Michigan appellate courts. The first, titled the Michigan Appellate Handbook, is a treatise published by the Michigan Institute of Continuing Legal Education (“ICLE”), which can be accessed at www.icle.org for a fee. It has a practical focus and is updated annually. The second guide is a Thompson West publication titled Civil Appeals. The West treatise has a more academic focus and is authored by Michigan Supreme Court Justice Stephen J. Markman. The third guide, also published by Thompson West, is called Michigan Court Rules Practice. This treatise includes a useful digest of case authority interpreting and applying the appellate court rules. The Michigan Supreme Court Historical Society has also published the Michigan Supreme Court Historical Reference Guide, available for purchase at http://www.micourthistory.org/publications. C. Contacting the Clerk’s Office. The Michigan Court of Appeals is divided into four districts, each with its own clerk’s office (though any office is available to answer questions, even about cases originally filed in other districts). Contact information is available at http:// courts.mi.gov/courts/coa/clerksoffice/pages/contact.aspx. The Michigan Supreme Court has its - 1 - own clerk’s office; contact information is available at http://courts.mi.gov/courts/ michigansupremecourt/clerks/pages/default.aspx. Neither the Supreme Court nor the court of appeals assigns case managers to individual cases. Advocates will find the personnel in both clerks’ offices to be friendly and extraordinarily helpful. D. Electronic Notices. Both the Michigan Supreme Court and the Michigan Court of Appeals offer an email service for next-day delivery of opinions and orders. Advocates can sign up through the courts’ websites. Analysis of and links to Michigan appellate opinions and orders are also available through the One Court of Justice Blog, http://www.ocjblog.com. E. Legislative History Resources. Michigan’s legislative history is notoriously scant and difficult to find. For a guide to what is available and how to locate it, review the Chapter on Sources of Michigan Legislative Information, in the Legislative Service Bureau’s Michigan Manual, at https://www.legislature.mi.gov/(S(xiewdqe4guoq2tf15xm1emse))/documents/2015- 2016/michiganmanual/2015-MM-P0263-p0266.pdf. F. Rule Amendments. For future rule changes, readers should visit the “Proposed and Recently Adopted Orders” section of the Michigan Supreme Court’s website http://courts.mi.gov/courts/michigansupremecourt/rules/court-rules-admin-matters/. Rules cur- rently in effect can be found at http://courts.mi.gov/courts/michigansupremecourt/rules/. II. Admission to Practice and Representation of Counsel A. General. Attorneys admitted to practice in Michigan need not seek any further admission to appear in the state’s appellate courts. B. Admission Pro Hac Vice. Out-of-state advocates seeking to enter an appearance in a Michigan case or proceeding must comply with Michigan’s pro hac vice rule, M.C.R. 8.126, which provides for an out-of-state advocate’s appearance in a maximum of five Michigan cases in a 365-day period. A Michigan attorney must file a motion and affidavit in the court where admission is sought and submit a copy of both to the Attorney Grievance Commission (“AGC”). The AGC must notify the court, within seven days, whether the out-of-state advocate has sought temporary admission in the past 365 days and, if so, how many times. For the privilege of practice in Michigan, the out-of-state lawyer must pay once annually a fee to the Michigan State Bar of $135, regardless of the number of appearances. Each advocate admitted pro hac vice subjects himself or herself to the jurisdiction of Michigan’s attorney disciplinary system. C. Appearance of Counsel on Appeal. The first pleading filed by an appellant constitutes an appearance by the appellant’s attorney. M.C.R. 2.117. Within 14 days after being served with a claim of appeal, the appellee shall file an appearance in the Court of Appeals and in the court from which the appeal is taken. M.C.R. 7.204(G). An appellee who does not file a timely appearance is not entitled to notice of further proceedings until an appearance is filed. D. Withdrawal and Substitution of Counsel on Appeal. Withdrawal and substitution of counsel require leave of court and may be requested by motion. See generally M.C.R. 7.211 (court of appeals); M.C.R. 7.313 (Supreme Court). E. Ethical Rules and Standards. The Michigan Rules of Professional Responsibility apply throughout Michigan’s courts. There are no ethical rules or standards unique to Michigan appellate practice. - 2 - III. The Appellate Court System A. Structure. Michigan has a traditional, two-tier appellate structure, including an interme- diate court of appeals and the highest court in the state, the Michigan Supreme Court. The court of appeals is divided into four districts: Detroit, Troy, Grand Rapids, and Lansing. Michigan Court of Appeals judges are elected by district but hear cases in all four districts, and opinions do not specify the district from which they originate. B. Mandatory Jurisdiction. The Michigan Court of Appeals has jurisdiction to hear an ap- peal “of right” from a final judgment or order of a circuit court or court of claims, M.C.R. 7.203, and certain decisions of the Michigan probate courts and administrative agencies, Mich. Comp. Laws § 600.308. The Michigan Court Rules generally define a “final judgment” or “final order” in a civil case as “the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all Hot Tip: All final Michigan the parties.” M.C.R. 7.202(6)(a)(i). In other words, “A final trial court orders must state order is an order which, by itself or in conjunction with pre- that the order “resolves the vious orders, disposes of all of the claims of all of the parties last pending claim and closes or is an order which, although otherwise not final, disposes of the case.” M.C.R. 2.602. If at least one claim of one party and is certified as a final order retained before the final order under MCR 2.604(A).” Dean v. Tucker, 182 Mich. App. 27, is entered, ensure this magic 30, 451 N.W.2d 571 (1990). Final orders in a civil case also language is included. include those: designated by a trial court as final in a multi- party action; involving the custody of a minor; awarding or denying attorney fees and costs; or denying governmental immunity. M.C.R. 7.202(6)(a). Note, dismissal for lack of progress under M.C.R. 2.502 is not a final order or judgment, but an order denying a motion to reinstate the action is a final order. Wickings v. Arctic Enters., Inc., 244 Mich. App. 125, 135–37, 624 N.W.2d 197 (2000). Final orders in a criminal case include those dis- missing the case; imposing a sentence following conviction; Hot Tip: A post-judgment imposing a sentence following the grant of a motion for order that is not listed in resentencing; imposing a sentence following remand from an M.C.R.
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