Supreme Court Procedure in Michigan

Indiana Law Journal Volume 10 Issue 2 Article 1 11-1934 Supreme Court Procedure in Michigan William H. Potter Supreme Court of Michigan Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Courts Commons, and the Judges Commons Recommended Citation Potter, William H. (1934) "Supreme Court Procedure in Michigan," Indiana Law Journal: Vol. 10 : Iss. 2 , Article 1. Available at: https://www.repository.law.indiana.edu/ilj/vol10/iss2/1 This Symposium is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact [email protected]. INDIANA LAW JOURNAL Volume X NOVEMBER, 1934 No. 2 THE WORK OF THE COURTS: A SYMPOSIUM* I Supreme Court Procedure in Michigan WILLIAm H. POTTER** Indiana and Michigan have much in common. The territory constituting each state was for a century or more under the control of France. By treaty closing the French and Indian war, this territory was ceded to Great Britain. Under British rule each was, for a considerable time, Indian territory, out- side the pale of civil government, which was theoretically extended here by the Quebec Act, bitterly denounced by resolutions of the Continental Con- gress and in the Declaration of Independence. When Captain Hamilton of Detroit surrendered Vincennes to George Rogers Clark, he surrendered at the same time Philip DeJean whom Moses Henry called the "Grand Judge of Detroit." Each was equally exposed to attacks by Indians employed by Great Britain, a practice which drew from Lord Chatham a scathing denun- ciation in the British parliament. After Virginia ceded to Congress her rights, Indiana was governed after its enactment, by the Ordinance of 1787. Michigan was not under American control until 1796 due to the refusal of the British to surrender the north- western posts. After 1796 both were governed by the Ordinance until they passed the territorial stage. When a.legislative assembly of the Northwest Territory was called, representatives from both Detroit and Vincennes sat therein. When Ohio was admitted into the Union as a state, all of what is now Michigan was joined to Indiana territory. Judge Vanderberg of Vin- cennes held court in Detroit October 24, 1804. The records in the office of the clerk of the Supreme Court of Indiana show several suits in which resi- dents of Detroit were parties during the time Michigan constituted a part of Indiana. The Supreme Court of the State of Michigan as organized in 1836 con- sisted of three members. This system continued until 1838 when the number of justices was increased to four and so continued until 1848 when the number was increased to five. The court continued to have five justices until 1852 when the number was increased to eight, and so continued until 1858. The members of the supreme court during all this period, presided in the several circuit .courts, and it was said met together four times a year and per- sisted in the errors made in the trial of cases in the circuit. There are no opinions by the supreme court of Michigan published prior to the January 1843 term. For a period of 15 years after that, that is, until January, 1858, there were but 426 opinions filed and published, a little over 28 opinions The papers constituting this symposium were addresses delivered to the Indiana State Bar Association at its Thirty-eighth Annual Meeting, Lake Wawasee, July 12 and 13. ** Associate Justice, Supreme Court of Michigan. 59 INDIANA LAW JOURNAL a year or 7 opinions a term. Effective January 1, 1858, the old court was abolished and an independent supreme court, consisting of four justices created. These justices did not preside in the circuit courts. During the first 16 years of the independent supreme court, that is, until January 1, 1874, it decided approximately 1,620 cases in which opinions were filed-an average of 107 opinions a year, or about 27 opinions per man a year. Less than 7 at a term. The business of the supreme court gradually increased. The Michigan legislature of 1873 turned out more legislation than any other legislature in Michigan before or since that time. In 1874 the number of cases on the supreme court calendar increased to 322. The population of the state in 1861 was in round numbers 750,000. The number of cases decided by the supreme court in that year was 44. The population in 1871 was approximately 1,200,000 and the number of cases decided that year was 97. The population in 1881 was 1,700,000 and the number of cases decided in the supreme court that year was 377. The population in 1891 was in round numbers, 2,200,000, and the number of cases brought to the supreme court that year, including motions was 829, and the number of cases decided by the supreme court was 469. In addition to these there were 28 opinions on motions, making a total of 497. The population of the state increased approximately 500,000 each decade. The increase in population from 1861 to 1871 was 66 Y2% and the increase in business in the supreme court was 97%. From 1871 to 1881 the increase in population was 41% and the increase in the business of the supreme court was 185%. From 1881 to 1891 the increase in population was 77% and the increase in the business of the supreme court was 129%. The original argument in favor of four justices was that a majority constituted a larger percentage of the whole number than any other number, but on account of an equal division of opinion on the socalled State Tax cases in 1884 the number of justices was increased from four to five. This to some extent cut down the burden upon each judge but it did not satisfactorily take care of the constantly increasing business of the court. In 1891 the legislature passed a bill authorizing the employment of stenographers or copyists by the justices of the supreme court, which bill was vetoed by the Governor because it provided for five new employees at $800 a year and for the appointment of the stenographers by the justices rather than by the Governor. The Michigan State Bar Association was organized in 1891 and some local bar associations were organized soon afterward. At the second meeting of the Michigan State Bar Association in 1892 its president said: "Within the last ten years the business of the supreme court has so far increased that it has been physically impossible to decide all the cases promptly and at the same time give them that consideration which should be given by a court of last resort in a great state and which the litigants have a right to expect." Agitation among the members of the bar for relief of the supreme court had been going on for some time. Bar associations became an effective mouthpiece of the members of the profession. Various suggestions were made. It was proposed that we have three circuit judges to meet in judicial districts as an appellate court. A similar provision had been embodied in the proposed constitution of 1867 but had been decisively defeated. It was suggested' that no appeals should be allowed as a matter of right in cases which did not involve $500. Abolition of the requirement of written opinions in every case, restriction in the use of mandamus to its common law function, the abolition of bills of exceptions, increase in the number of judges of the supreme court, requiring better briefs of counsel and better indexes to the record of the court, were all suggested as methods of relieving-the court. THE WORK OF THE COURTS In 1893 the salary of the justices of the supreme court was raised from $5,000 to $7,000 a year and the justices were required to live in Lansing, This, it was suggested, would give them more time for the consideration of the cases before the court. The Governor, in his message of January, 1895, called attention to the Act of 1893 which required the justices of the supreme court to reside in Lansing, saying, "At the time of the adjournment of the legislature there were upwards of one hundred cases ready for hearing but which could not be reached. In the eighteen months since that time the calendar has been cleared and the court feels that under the present condition of affairs they will be able to keep up with the work." In his January, 1897, message, after referring to the numerous plans proposed by the legislature of 1893 for the relief of the Supreme Court and the one adopted, he added: "The great number of cases coming to this court is unmistakable evidence that some future measures of relief should be taken in the not distant future." In 1899 a proposed constitutional amendment providing for the creation of an intermediate court was submitted to the people, but was defeated at the polls. The Judicature Act of 1915 became effective January 1, 1916, and in 1917 the number of calendar cases in the supreme court reached the highest point between 1912 and 1931. In 1917 it was provided by statute writs of error should be denied except on leave granted in cases where the amount involved did not exceed $500, not- withstanding the number of calendar cases had fallen in 1915 to 477, the lowest number since 1883.

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