People v Kaczmarek, ___ Mich ___, (7/3/01), involved an appeal from a guilty plea. The defendant was convicted of an underlying crime which occurred before December 27, 1994, the effective date of Proposal B which had removed the right of an appeal for a defendant convicted after a guilty plea. The defendant was placed on probation. Subsequent to December 27, 1994, the defendant pled guilty to violating his probation. He then sought to appeal from the probation violation. The Supreme Court held that the defendant retained the right to appeal from his probation violation guilty plea, that Proposal B applies only to cases arising out of crimes committed after its effective date, which date was the crime itself and not the date of the acts which gave rise to the probation violation.

People v Nash, 244 Mich App 93, 12/26/00, involved a basic, but often overlooked, preliminary issue: whether there is any ruling to appeal. A witness referred to having taken a lie detector test. The comment was improper. But defense counsel's objection to the reference was sustained, and the trial court instructed the jury to disregard the answer. Defense counsel failed to move for a mistrial. The Court held that the failure to move for a mistrial indicated satisfaction with the trial court's handling of the matter. Since the trial court had sustained the objection, there was no adverse ruling of the trial court from which to appeal. There was still an issue to be reviewed, but only under the more restrictive standards to apply to forfeited error rather than the standards for preserved error. Ironically, the Court of Appeals found that, on the facts, the error did deprive the defendant of a fair trial, even under the issue forfeiture rules, and reversed the conviction.

People v Higuera, 244 Mich App 429, 1/30/01, involved a prosecution of a doctor for violation of the criminal abortion statute. In People v Bricker, 389 Mich 524 (1973), the Michigan Supreme Court had limited the permissible scope of the Michigan abortion statute to comply with Roe v Wade, 410 US 113 (1973). The defense argued that the discussion in Bricker on the constitutionality of the statute was mere dictum. The Court of Appeals rejected this argument, and reiterated the rule that "[w]hen a court of last resort intentionally takes up, discusses and decides a question germane to, though not necessarily decisive of, the controversy, such a decision is not a dictum but is a judicial act of the court which it will thereafter recognize as a binding decision." Higuera, 244 Mich App at 437, quoting Detroit v Michigan Public Utilities Comm, 288 Mich 267, 299-300 (1939), quoting Chase v American Cartage Co, Inc, 186 NW 598 (1922). "A decision of the Supreme Court is authoritative with regard to any point decided if the Court's opinion demonstrates Ôapplication of the judicial mind to the precise question adjudged, regardless of whether it was necessary to decide the question to decide the case.'" Higuera, p 437, quoting People v Benoite, 112 Mich App 167, 171 (1982).

In People v Hawkins, Mich App (4/27/01), the Court observed that, since a claim on appeal that the evidence was insufficient to support the conviction invokes the constitutional right to due process of law, review of the sufficiency of the evidence is de novo.

In People v Taylor, 245 Mich App 439 (4/6/01), a witness improperly mentioned that the defendant, after arrest, invoked his right to counsel and refused to speak. While this was error, it was forfeited for appellate review. The defendant was convicted in a bench trial. The Court held that, since a trial judge is presumed to understand the law, it is also presumed that trial judges can ignore forfeited errors.

In People v Bearss, 463 Mich 623 (4/17/01), the Supreme Court addressed the proper procedure for an appellate court when the court determines that there was insufficient evidence to support a conviction on a charged offense, but sufficient evidence, if believed, to support conviction on a cognate lesser included offense. The defendant was convicted of obtaining money under false pretenses. The Court of Appeals found the evidence insufficient to support that charge, but sufficient on the lesser offense of writing three nonsufficient funds checks within ten days. The jury had been instructed on the latter charge as a lesser offense. The Court of Appeals remanded with instructions for the trial court to enter a verdict on the lesser offense. The Supreme Court found that the Court of Appeals's practice was unconstitutional, because the jury had never specifically found that the defendant had committed the lesser crime. The Supreme Court disavowed the practice of remanding with instructions to enter a conviction on a cognate lesser offenses "with rare exceptions." This practice is permissible only where (1) there was sufficient evidence to support a conviction of the lesser cognate offense, and (2) "the appellate court can unequivocally state that the jury's verdict must have included a specific finding of every element necessary to support a conviction of the cognate offense."

The distinction between waiver and issue forfeiture, a hot topic in recent years, was again presented in People v Adams, 245 Mich App 226 (4/6/01). The defendant moved to change venue based on pretrial publicity, but then withdrew the motion. The defendant then raised the issue on appeal after conviction. The Court held that any claim of error on the venue question was waived, and therefore extinguished for appellate review, and not merely forfeited.

People v Aldrich, ___ Mich App ___ (5/18/01) presented a slight variation on this issue. The defendant alleged on appeal that a witness's testimony was incomplete, but the defendant had specifically waived objection in the trial court. The Court of Appeals held that the defendant could not waive objection to the issue and then raise that issue on appeal.

UNITED STATES SUPREME COURT HABEAS CORPUS DECISIONS
OCTOBER 2000 TERM

In its October 2000 term, filled with remarkable and controversial decisions, the United States Supreme Court also issued several significant opinions involving procedural issues in habeas corpus petitions.

Artuz v Bennett, 121 S Ct 361, 68 CrL 128 (11/7/00) addressed the tolling provision on the limitation period for bringing a federal habeas corpus action. The time period is tolled during the time that a petition for state collateral review is pending. The Court held that a state collateral petition is "properly filed" even if the state court will be required to dismiss the petition as procedurally barred, that "properly filed" only means that the state petition meet applicable laws and rules governing filing.

In a related issue, in Duncan v Walton, 121 S Ct ___; 69 CrL 359 (6/18/01), the Court held that a federal habeas corpus petition is not an "application for state post-conviction or other collateral review" within the meaning of the revised federal habeas corpus statute, and does not toll the limitation period for the filing of a subsequent habeas petition.

In Fiore v White, 121 S Ct 712; 68 CrL 311 (1/9/01), the Court held that when a state issues an opinion that does not establish "new" law, but clarifies the meaning of a statute, the state cannot constitutionally maintain a conviction against a person whose conviction, under the state's interpretation of the law, would be invalid. In this case, the defendant's conviction was affirmed by a state appellate court, and the state supreme court denied leave, but the state supreme court in a later case interpreted the statute in a manner which, if applied to this defendant, would have made his conviction invalid. The Court held that, in these circumstances, the defendant was entitled to have his conviction set aside on habeas corpus review.

Daniels v United States, 121 S Ct 1578; 69 CrL 127 (4/25/01), and Lackawanna Co District Atty v Coss, 121 S Ct 1567; 69 CrL 133 (4/25/01) involved habeas corpus attacks on state court convictions used to enhance a sentence or later offense. The Court held that such offenses may generally not be challenged in federal habeas corpus proceedings. The one remaining exception is that a conviction obtained in violation of the right to counsel may be so challenged.

FEDERAL CASE SUMMARIES FOR 6^TH CIRCUIT ON APPELLATE PROCEDURE IN CIVIL CASES

(1) Becker v Montgomery, 121 S.Ct. 1801 (May 29, 2001)

STATE CASE SUMMARY ON APPELLATE PROCEDURE IN CIVIL CASES

Dykes v William Beaumont Hospital, COA 214284, June 19, 2001.Neff (concurring in part; dissenting in part), Talbot, Sullivan (PC)Consolidated with 218386 Dykes v William Beaumont Hospital

An order of the Supreme Court which constitutes the final disposition of an application for leave to appeal and which contains a concise statement of the applicable facts and reasons for the decision is binding precedent.

CHANGES TO THE INTERNAL OPERATING RULES OF THE MICHIGAN COURT OF RULES

IOP 7.202(3) - "Entry." An order of the Court of Appeals or of another court is "entered"

when it is placed in the file and the records of that court. "Placement in the file" may occur subsequent to the date the judge signed the order. The trial court register of actions will be used to confirm the date of entry where there is a conflict between a date stamped on the face of an order and the date it is actually entered by being "placed in the file and records" of the pertinent court. (Effective 1/01.)

IOP 7.202(5) - "Filing." A document is "filed" when it is delivered to the clerk of the court and accepted by the clerk with the intent to enter it in the record. Upon delivery to any office of the Court of Appeals, a date stamp will be applied as a ministerial act indicating the date, time, and location of receipt of the document. See IOP 7.201(B)(3)-1. (Effective 1/01.)

IOP 7.202(3) - "Entry." An order of the Court of Appeals or of another court is "entered"when it is placed in the file and the records of that court. "Placement in the file" may occur subsequent to the date the judge signed the order. The trial court register of actions will be used to confirm the date of entry where there is a conflict between a date stamped on the face of an order and the date it is actually entered by being "placed in the file and records" of the pertinent court. (Effective 1/01.)

IOP 7.202(5) - "Filing." A document is "filed" when it is delivered to the clerk of the court and accepted by the clerk with the intent to enter it in the record. Upon delivery to any office of the Court of Appeals, a date stamp will be applied as a ministerial act indicating the date, time, and location of receipt of the document. See IOP 7.201(B)(3)-1. (Effective 1/01.)

IOP 7.202-1 - Signatures. Prior to September 1, 1999, MCR 7.202(6) established that any document that was required to be "signed" must bear the original signature of the attorney, or of a party proceeding in propria persona. Effective September 1, 1999, this definition was removed from the court rules. Current clerk's office policy is to accept signatures by consent, signatures by permission, facsimile signatures, block stamps, and signature stamps. The clerk's office will not accept filings with blank signature lines or omitting any symbol that could be construed as a signature. (Effective 1/01.)

In multiple-party cases, all the parties' signatures need not be on the same page. Parties may submit a number of different copies of the signature page, each bearing one or more signatures of multiple attorneys. (Effective 1/01.)

IOP 7.204(A)(1) - Time Requirements. The time for filing a claim of appeal (or any other time-sensitive document) is calculated pursuant to the dictates of MCR 1.108, Computation of Time. While the rule itself should be consulted by anyone making filings in the Court, it may be summarized by noting that (1) the first day of the pertinent time period is the day after the day of the act or event which triggers the time to begin running; (2) the last day of the pertinent time period is included, unless it is a Saturday, Sunday, legal holiday, or holiday on which the Court is closed pursuant to court order, in which case the time ends on the next day that the Court is open. Saturdays, Sundays, etc., that fall within the time period (e.g., not on the last day) are counted the same as any other day.(Effective 1/01.)

IOP 7.204-1 - Claim of Appeal; Assignment of Docket Number. Each claim of appeal is assigned an appellate docket number. Even if a prior claim of appeal or application for leave to appeal has been filed from the same lower court or tribunal case, a new claim of appeal will be assigned a new number. A postcard will be sent to the parties to advise that the appeal has been "received." The Court of Appeals docket number that is stated on this card should be included on all further filings in the matter. (Effective 1/01.)

IOP 7.204-5 - Claim of Appeal; Procedure When All Documents Have Not Been Filed. If the claim of appeal lacks a copy of the final order, the correct entry fee, a conforming proof of service [see MCR 7.204(C)(3)], or the lower court register of actions, a computer-generated letter (a "defect"letter) will be used to advise the appellant that the additional documents must be filed within 21 days. See, MCR 7.201(B)(3). A copy of the letter will be sent to all attorneys or parties who have been served with the claim of appeal. The clerk's office may send an additional letter, either before or after expiration of the 21-day period, if the appellant has made some attempt to correct the defect or if the clerk's office believes that there was an inadvertent failure to correct the defect after the first letter was sent. The additional letter, if sent, sets out the further requirements of the Court. (Effective 1/01.)

IOP 7.204(B)(2)-1 - Claim of Appeal; Entry Fee. The entry fee is set by statute, MCL 600.321; MSA 27A.321. It is presently $250. If the clerk's office determines that an inadequate entry fee was submitted, the outstanding amount will be requested by letter. Fee payment may be made by personal or corporate check or money order. The Court does not accept credit card payments. (Effective1/01.)

In civil appeals filed by incarcerated appellants under MCL 600.2963; MSA 27A.2963, whereas motion to waive entry fee is made, it is sufficient if appellant initially files only an original and one copy of all pleadings and documents. The Court will process such motions to waive fees through the administrative motion docket. If an order is entered that denies the motion and requires the payment of the full fee or the initial payment of a reduced fee (with the remainder to be collected by the Department of Corrections), the original set of pleadings and documents will be returned to the appellant and the copy will be retained by the Court for record keeping purposes. When appellant resubmits the pleadings and documents to the Court with the required entry fee, appellant must file the number of copies required by the court rules or the filing will be deemed defective. The copy retained by the Court in the initial filing will be counted toward satisfaction of the copy requirement upon resubmission. (Effective 1/01.)

By statute, a prisoner who has failed to pay outstanding fees and costs related to an appeal in this Court shall not commence a new appeal until those outstanding fees and costs have been paid. MCL 600.2963(8); MSA 27A.2963(8). If a prisoner who has failed to pay outstanding fees and costs files a new appeal, it will be returned to the prisoner by the Court. (Effective 1/01.)

IOP 7.204(B)(2)-2 - Claim of Appeal; Entry Fee; Multiple Lower Court Numbers. The entry fee of $250 is set by MCL 600.321; MSA 27A.321, which states that "[t]his fee shall be paid only once for appeals that are taken by multiple parties from the same lower court order or judgment and can be consolidated." (Effective 1/01.)

Only a single fee is to be collected from (a) one party appealing a final trial court order or judgment, or from (b) multiple parties filing multiple appeals from a final trial court order or judgment, so long as these multiple filings allow for efficient and purposeful consolidation for processing, hearing and decision as a single appeal. (Effective 1/01.)

The listing of multiple lower court numbers on an order or judgment is by itself of no consequence in determining the number of entry fees to be paid. If it can be and is determined at the time of filing that another party has previously paid the entry fee, the later appeal will be accepted without fee. If it cannot be or is not determined at the time of filing that another party has previously

IOP 7.204(C)(3) - Claim of Appeal; Proof of Service. MCR 7.204(C)(3) requires that all parties be served. The court rule uses the word "parties," not the word "appellees." Thus, all parties who were involved at the lower court level must be served regardless whether they are intended to be appellees. Two exceptions have been carved out, such that appellant need not serve (1) a party that has been dismissed from the trial court proceedings by order pursuant to stipulation; or (2) a party that has been dismissed from the trial court proceedings for lack of service. Proof of service of the claim of appeal is governed by court rule, MCR 2.104 (A), and must state the facts of service, including the manner, time and place of service. Where a party wishes to raise an issue with respect to service of the claim of appeal, it must be done through an appropriate motion filed with this Court. (Effective 1/01.)

IOP 7.204(C)(5) - Claim of Appeal; Docket Entries. MCR 7.204(C)(5) requires docket entries from the trial court or tribunal. This rule is interpreted to mean a copy of the lower court's register of actions (see MCR 8.119(D)(1)(c)) which shows, at a minimum, entry of the order appealed from or the order which gives jurisdiction to the Court of Appeals. (Effective 1/01.)

IOP 7.204(C)(6) - Claim of Appeal; Jurisdictional Checklist. A jurisdictional checklist must be filed with each claim of appeal. The form checklist may be obtained at any of the district offices. (Effective 1/01.)

IOP 7.204-6 - Claim of Appeal; Court Has Jurisdiction and All Documents Filed. If it is concluded that the Court has jurisdiction and all documents have been filed, the file is transferred to the appropriate district clerk's office, see IOP 7.201(B)(2). To facilitate the processing of documents that are subsequently filed in the case, the documents may be mailed directly to the district where the file is located. See IOP 7.201(B)(2) for a list of the counties assigned to each district office. (Effective 1/01.)

IOP 7.204-7 - Claim of Appeal; Court Lacks Jurisdiction or Not All Documents Filed. If a staff attorney determines that the Court lacks jurisdiction or that the defects have not been corrected, the matter is referred for dismissal under MCR 7.201(B)(3) or MCR 7.203(F)(1). The Court does not notify either party that an appeal is considered eligible for dismissal due to lack of jurisdiction. Notice to the parties is conveyed when the order of dismissal is forwarded to them. (Effective 1/01.)

IOP 7.204(G)-2 - Claim of Appeal; Consequences of Appearance. MCR 7.204(G) provides for the filing of an appearance by an appellee within 14 days of service of the claim of appeal. The Court will also accept appearances from parties who may not intend to participate in the appeal. Such parties will be carried in the Court's records as they were carried on the records of the lower court. Where the appeal involves only two parties (one appellant and one appellee), appellant is required to serve all future filings on appellee even if an appearance has not been filed. (Effective 1/01.)

Proof of service of filings in the appeal, and notice from the Court of activity in the appeal, will be directed only to parties appearing in propria persona and to the principal attorney who has signed the appearance for each party. The Court of Appeals has the responsibility to notify only one attorney per party of calendar events in the Court of Appeals. (Effective 1/01.)

Once an attorney has appeared, and before the case has been scheduled for case call, that attorney may be removed from the appeal by stipulation to substitute or by motion to withdraw. After the case has been scheduled for case call, removal may occur only through motion before the Court. A stipulation to substitute will not be accepted after the case has been scheduled for case call. (Effective 6/01.)

IOP 7.204(G)-3 - Claim of Appeal; Signing of Appearance. The Court of Appeals has the responsibility to notify only one attorney per party of calendar events in the Court of Appeals. Regardless of how the attorneys are listed on the appearance, the attorney who actually signs the appearance will be listed as the attorney of record and will be the one who will be sent all notices and letters, unless a different attorney from the same firm signs a subsequently filed brief. In such case, the name of the attorney who signs the brief will be substituted in the records of the Court. (Effective 1/01.)

IOP 7.204(H) - Claim of Appeal; Time for Filing Docketing Statement. MCR 7.204(H) requires that two copies of the docketing statement be filed within 28 days after the claim of appeal or claim of cross appeal was filed in a civil appeal. [The same deadline applies after entry of an order granting an application for leave. MCR 7.205(D)(3).] If the docketing statement copies are not filed, the clerk's office will send a letter to the appellant or cross appellant informing that party that the appeal is subject to dismissal under MCR 7.217 if the docketing statement is not filed within 21 days after the date of the letter. If the docketing statement copies are not filed within that 21-day period, the matter will be referred to the Chief Judge for dismissal or other action under MCR 7.217. Filings received after the 21 st day, but before dismissal, may be accepted, but costs will be assessed. (Effective 1/01.)

An appellee or cross-appellee may file a docketing statement in response to the docketing statement filed by the appellant or cross-appellant. The Court of Appeals will accept a docketing statement from any party at any time during the pendency of the appeal. (Effective 1/01.)

IOP 7.204(G)-3 - Claim of Appeal; Signing of Appearance. The Court of Appeals has the responsibility to notify only one attorney per party of calendar events in the Court of Appeals. Regardless of how the attorneys are listed on the appearance, the attorney who actually signs the appearance will be listed as the attorney of record and will be the one who will be sent all notices and letters, unless a different attorney from the same firm signs a subsequently filed brief. In such case, the name of the attorney who signs the brief will be substituted in the records of the Court. (Effective 1/01.)

IOP 7.204(H) - Claim of Appeal; Time for Filing Docketing Statement. MCR 7.204(H) requires that two copies of the docketing statement be filed within 28 days after the claim of appeal or claim of cross appeal was filed in a civil appeal. [The same deadline applies after entry of an order granting an application for leave. MCR 7.205(D)(3).] If the docketing statement copies are not filed, the clerk's office will send a letter to the appellant or cross appellant informing that party that the appeal is subject to dismissal under MCR 7.217 if the docketing statement is not filed within 21 days after the date of the letter. If the docketing statement copies are not filed within that 21-day period, the matter will be referred to the Chief Judge for dismissal or other action under MCR 7.217. Filings received after the 21 st day, but before dismissal, may be accepted, but costs will be assessed. (Effective 1/01.)

An appellee or cross-appellee may file a docketing statement in response to the docketing statement filed by the appellant or cross-appellant. The Court of Appeals will accept a docketing statement from any party at any time during the pendency of the appeal. (Effective 1/01.)

IOP 7.204(H)(1) - Claim of Appeal; Form of Docketing Statement. As the rule notes, "the docketing statement must contain the information required from time to time by the Court of Appeals through the office of the Chief Clerk." The docketing statement form currently provided by the State Court Administrative Office (SCAO) is the correct form to use. The lower court register of actions is not the docketing statement contemplated by this court rule. (Effective 1/01.)

IOP 7.205-5 - Application for Leave; Assignment of File to Staff Attorney. Once a docket number is assigned to a case, that file is assigned to a staff attorney for review. First, the staff attorney is responsible for insuring that all necessary paperwork and fees have been filed and paid. Second, the staff attorney is responsible for insuring that the Court of Appeals has jurisdiction. (Effective 1/01.)

IOP 7.205(B)(4) - Application for Leave; Transcript. The clerk's office does not delay docketing of an application for leave to appeal once evidence has been presented that the transcript has been ordered. Evidence will either be (1) a certificate signed by the court reporter stating that the transcript has been ordered or (2) a copy of a letter signed by the attorney and sent to the court reporter requesting the transcript. Upon docketing the file, the clerk's office will send a postcard to remind appellant of the responsibility to provide the transcript. If appellant fears that the transcript will not be timely filed, a motion to waive the transcript or to expedite transcript production may be filed. If the appellant fails to provide a copy of the transcript within the time required for the filing of a transcript under MCR 7.210(B)(3)(b), one warning letter will be sent to the appellant requesting the transcript. If a copy is then not provided, the appeal will be subject to dismissal. Further, the Court may deny or dismiss an application for leave to appeal if a subsequent review by a staff attorney leads to the conclusion that a necessary transcript was not ordered and filed. (Effective 1/01.)

IOP 7.205(B)(6) - Application for Leave; Proof of Service. MCR 7.205(B)(6) requires that all parties be served. The court rule uses the word "parties," not the word "appellees." Thus, all parties who were involved at the lower court level must be served regardless whether they are intended to be appellees. Two exceptions have been carved out, such that appellant need not serve (1) a party that has been dismissed from the trial court proceedings by order pursuant to stipulation; or (2) a party that has been dismissed from the trial court proceedings for lack of service. Proof of service of the application is governed by court rule, MCR 2.104 (A), and must state the facts of service, including the manner, time and place of service. Where a party wishes to raise an issue with respect to service of the application, it must be done through an appropriate motion filed with this Court. (Effective 1/01.)

IOP 7.205(B)(7)-1 - Application for Leave; Entry Fee. The entry fee is set by statute, MC 600.321; MSA 27A.321. Presently the fee is $250. When multiple orders on the merits are appealed, the entry fee is $250 for each order being appealed (an order denying rehearing is not an order on the merits). If the clerk's office determines that an inadequate entry fee was submitted, the outstanding amount will be requested by letter. Fee payment may be made by personal or corporate check or money order. The Court does not accept credit card payments. (Effective 1/01.)

In civil appeals filed by incarcerated appellants under MCL 600.2963; MSA 27A.2963, where a motion to waive entry fee is made, it is sufficient if appellant initially files only an original and one copy of all pleadings and documents. The Court will process such motions to waive fees through the administrative motion docket. If an order is entered that denies the motion and requires the payment of the full fee or the initial payment of a reduced fee (with the remainder to be collected by the Department of Corrections), the original set of pleadings and documents will be returned to the appellant and the copy will be retained by the Court for record keeping purposes. When appellant resubmits the pleadings and documents to the Court with the required entry fee, appellant must file the number of copies required by the court rules or the filing will be deemed defective. The copy retained by the Court in the initial filing will be counted toward satisfaction of the copy requirement upon resubmission. (Effective 1/01.)

By statute, a prisoner who has failed to pay outstanding fees and costs related to an appeal in this Court shall not commence a new appeal until those outstanding fees and costs have been paid. MCL 600.2963(8); MSA 27A.2963(8). If a prisoner who has failed to pay outstanding fees and costs files a new appeal, it will be returned to the prisoner by the Court. (Effective 1/01.)

MCR 7.205(B)(7)-2 - Applications; Entry Fee; Multiple Lower Court Numbers. The entry fee of $250.00 is set by MCL 600.321; MSA 27A.321, which states that "[t]his fee shall be paid only once for appeals that are taken by multiple parties from the same lower court order or judgment and can be consolidated." (Effective 1/01.)

IOP 7.205-7 - Application for Leave; Court Has Jurisdiction and All Documents Filed.

An application is generally reviewed for jurisdiction and completeness in the district in which it is filed. If the application is granted, the file is then transferred to the appropriate district office. See IOP 7.201(B)(2). (Effective 1/01.)

IOP 7.205-8 - Application for Leave; Court Lacks Jurisdiction or Not All Documents

Filed. Ifastaff attorney determines that the Court lacks jurisdiction or that the defects have not been corrected, the matter is referred for dismissal under MCR 7.201(B)(3) or MCR 7.203(F)(1). The Court does not notify either party that an appeal is considered eligible for dismissal due to lack of jurisdiction. Notice to the parties is conveyed when the order of dismissal is forwarded to them. (Effective 1/01.)

IOP 7.205(C)-1 - Application for Leave; Time to File Answer. The court rule requires that the answer be filed within 21 days of service of the application. This rule will be strictly enforced. The parties lack the authority to stipulate to an extension of time to file an answer. An extension can only be given by order of the Court pursuant to a motion for extension of time filed with the late answer. See MCR 7.211(E)(2)(e), which gives the Chief Judge the authority to adjourn the hearing date for an application. The clerk's office will return any answer that is filed late without being accompanied by a motion to file the answer. (Effective 1/01.)

IOP 7.205(C)-2 - Application for Leave; Form of Answer. Five copies of the answer must be filed. Answers must conform to MCR 7.212(D). If an answer fails to conform, the appellee will be sent a letter advising that the answer is not in conformity with the rule, with instructions as to what must be done to correct it. Submission of the application will not be delayed pending receipt of the corrected answer. (Effective 1/01.)

IOP 7.205(E)(1) - Emergency Appeal; Notice That Action Required Within 56 Days. If appellant believes that some action by the Court of Appeals is necessary within 56 days of the date the application is filed, appellant should include a prominent notice on the cover sheet or first page of the application alerting the clerk's office to that fact. The notice should include the date by which action is required. See MCR 7.205(E)(1). (Effective 1/01.)

The application will be reviewed by the clerk's office to determine whether action within 56 days is required. If the clerk's office determines that the application should be submitted in more than 21 days but less than 56 days from the date of filing, the application will be designated as a priority." [Note: In this context, the term "priority" is not meant to refer to priority cases under MCR 7.213(C).] If the clerk's office determines that the application should not be treated as a priority, the appellant will be notified as soon as the determination is made. Appellant may then choose to file a motion for immediate consideration. (Effective 1/01.)

If the clerk's office determines that the application requires action in less than 21 days, the clerk's office will contact appellant and request the filing of a motion for immediate consideration. See MCR 7.205(E)(2); IOP 7.205(E)(2)-1. (Effective 1/01.)

IOP 7.205(E)(2)-1 - Emergency Appeal; Application for Leave Filed With Motion for

Immediate Consideration. If appellant believes that some action by the Court of Appeals is necessary within 21 days of the date the application is filed, appellant should file a motion for immediate consideration with the application concisely stating why an immediate hearing is necessary. See MCR 7.205(E)(2). (Effective 1/01.)

The motion and application will be reviewed by the clerk's office to determine whether action within 21 days is required. If the clerk's office determines that the application should be submitted within 21 days from the date of filing, the application will be designated as an "emergency." If it is determined that action within 21 days is not necessary, the clerk's office will notify the parties of that determination and the application will be designated as a priority requiring action within 56 days. See IOP 7.205(E)(1). (Effective 1/01.)

If the motion and application are served on appellee by mail, the matter may not be submitted to the panel until the first Tuesday 7 days after the date of service, unless appellee acknowledges receipt. Where the motion and application are served personally, the application is eligible for immediate submission. (Effective 1/01.)

Practice Note: Where the filing is designated as an emergency (requiring action in less than 21 days), opposing counsel will be telephoned, advised when the motion will be submitted, and asked whether and when an answer will be filed. Submission to a panel of judges will occur as quickly as necessary under the circumstances of the individual case, as outlined above. (Effective 1/01.)

IOP 7.206-1 - Original Proceedings; Same as Application for Leave to Appeal. Original proceedings and answers to original proceedings are treated the same as applications for leave to appeal and their answers. That includes the review by a staff attorney and notification of any defects. The staff attorney also reviews for jurisdiction. Original proceedings can also be dismissed for failure to file in conformity with the rules or for lack of jurisdiction. The entry fee is also set by statute at $250. See the IOPs under 7.205. An answer to the complaint shall be filed within 21 days of service of the complaint. (Effective 1/01.)

Practice Note: Writs of superintending control, mandamus or habeas corpus may not be sought by motion in an existing action. Rather, request for such a remedy must be brought in an original proceeding. (Effective 1/01.)

IOP 7.207-1 - Claim of Cross Appeal; Procedure for Review. Each claim of cross appeal is given to a staff attorney for review. The staff attorney ensures that all required documents have been filed and that the Court of Appeals has jurisdiction. If the claim of cross appeal lacks the order appealed (unless it is the same order appealed by appellant) or proper proof of service, a letter will be sent to cross appellant requiring the additional documents within 21 days. See, MCR 7.201(B)(3). A copy of the letter will be sent to all attorneys or parties served with the claim of cross appeal. The clerk's office may send an additional letter, either before or after expiration of the 21-day period, if the cross appellant has made some attempt to correct the defect or if the clerk's office believes that there was an inadvertent failure to correct the defect after the first letter was sent. The additional letter, if sent, sets out the further requirements of the Court. (Effective 1/01.)

IOP 7.207(B)-1 - Claim of Cross Appeal; Entry Fee. Commencing June 1, 2000, the Court of Appeals will no longer collect entry fees for cross appeals that are filed from the same lower court order or judgment as the direct appeal if an entry fee for the direct appeal has been paid. See MCL 600.321; MSA 27A.321. Note that in this context, a direct appeal by right from a final judgment encompasses all prior orders entered in that same case. However, in a cross appeal to an appeal by leave granted, the filing will be carefully scrutinized to determine whether the same lower court order or judgment is the subject of the cross appeal. If not, an entry fee must be paid. The fee is presently set at $250. See IOP 7.204-2 and 7.204-3. (Effective 1/01.)

IOP 7.207(E) - Delayed Cross Appeal. If a party cannot timely file a claim of cross appeal, an application for leave to file a delayed (cross) appeal should be filed. The application must conform to all the filing requirements of MCR 7.205. If the application is granted, further pleadings on the cross appeal will be docketed in the underlying appeal. The order granting leave will set forth this requirement. (Effective 1/01.)

IOP 7.208(B) - Post-Judgment Motions in Criminal Cases. Post-judgment motions filed under this court rule in the trial court should be copied to the Court of Appeals so that the file is current and the Court is aware that briefing will be delayed while the post-judgment proceedings are ongoing in the lower court. (Published 9/98.)

The Court of Appeals views the list of motions in this court rule as restrictive: new trial; judgment of acquittal, withdrawal of plea; resentencing. No other motions filed in the trial court will be viewed as post-judgment motions under this court rule. (Published 9/98.)

If the motion is timely filed in the trial court, proceedings on appeal are halted until the post-judgment motion is decided and the transcript is filed in the trial court. If the motion is untimely filed in the trial court, the Court of Appeals will generally send a courtesy letter advising that appellate briefing will not be affected by the filing in the lower court. The time for filing the motion in the trial court is jurisdictional and cannot be extended by stipulation between the parties, by motion in the trial court, or by motion in the Court of Appeals. (Effective 1/01.)

Practice Note: In a situation where more than 56 days have elapsed since the commencement of the time for filing the appellant's brief, appointed counsel has filed a brief on appeal and the trial court subsequently allows that attorney to withdraw, the Clerk's policy is that no attorney can file a motion in the trial court that this Court will docket as a post-judgment motion. This policy is unaffected by this Court's decision to allow withdrawal of the previously filed brief, unless otherwise stated in the order. A motion to remand may be filed to seek permission to pursue the matter in the trial court. (Effective 1/01.)

IOP 7.210(B)(3)(b)-2 - Late Transcript. If the transcript is overdue more than 14 days past the date set in the court rule, a 21-day warning letter will be sent to appellant(s) with copies to appellee(s). See MCR 7.217(A). The appellant is then on notice that some action must be taken within the next 21 days or the appeal will be submitted to the Court on the first Tuesday that is 21 days after the date of the letter. Submission will be to the administrative motion docket for dismissal (if counsel is retained), or for remand for the appointment of substitute counsel (if counsel is appointed). Filings received after the 21 st day may be accepted if the matter has not yet been dismissed by the Court, but costs will be assessed. (Effective 1/01.)

Three alternatives are available to appellant upon receipt of a 21-day involuntary dismissal warning letter: (1) secure the filing of the transcript within the 21 days; (2) file a motion to show cause against the court reporter for failing to file the transcript in accordance with the court rule, MCR 7.210(B)(3)(f); or (3) file a motion to extend time for filing the transcript, MCR 7.210(B)(3)(b). Both motions must be served on opposing counsel and on the pertinent court reporter. Failure to take any action will result in submission of the appeal on the involuntary dismissal docket. (Effective 1/01.)

IOP 7.210(F) - Service of Record. Within 21 days after the transcript is filed with the trial court, the appellant in a civil or retained criminal appeal shall serve on each appellee a copy of the entire record on appeal. Proof of service on each appellee shall be filed with the Court of Appeals and is docketed in the file on appeal. (Effective 1/01.)

Simultaneously with the mailing of the record request to the trial court, a postcard notice will be sent to the parties under MCR 7.213(B), notifying them that they will be informed of the time and place of hearing 21 days before the first day of the session at which the matter will be submitted. See IOP 7.213(B). (Effective 1/01.)

IOP 7.211-2 - Defective Motions. During docketing, each motion will be reviewed for conformity to the court rule(s). Defects will be communicated to the filing party (with copies to opposing counsel and propria persona parties) by defect letters requiring that corrected papers be filed within 21 days. Answering parties should note, however, that defects in motions will not automatically toll the time for filing an answer. (Effective 1/01.)

IOP 7.211-3 - Motions; Page Limits. See MCR 7.215(H) for page and other limitations on motions for rehearing of opinions or orders of the Court of Appeals. But note that defects as to page limits do not toll the time for filing an answer. (Effective 6/01.)

IOP 7.211(A)(2) - Entry Fee. Each motion requires submission of an entry fee. The fee is presently set at $75 per motion, except for motions for immediate consideration and motions to expedite which are set at $150. A prosecuting attorney is exempt from paying a fee when filing a motion for immediate consideration or a motion to expedite in an appeal arising out of a criminal proceeding. MCL 600.321; MSA 27A.321. (Effective 1/01.)

IOP 7.211(A)(3) - Motions; Supporting Briefs. Briefs are generally required in support of motions to dismiss, to affirm, or for peremptory reversal. [But see IOP 7.211(C)(3) concerning exceptions to the general rule when filing motions to affirm.] Supporting briefs may be filed in support of other motions. The court rule contemplates that the brief must conform to MCR 7.212(C) as nearly as possible. (Effective 1/01.)

IOP 7.211(B)-1 - Answers to Motions. A party may file an answer to a motion by filing five copies of the answer, together with a proof of service on opposing counsel. The time for filing answers to motions is specifically stated in the court rule. If an answer is accompanied by a brief in support, it must conform to MCR 7.212(D) as nearly as possible. (Effective 1/01.)

Typically, the time for filing an answer is not tolled due to defects in a motion. The answering party may want to contact the clerk's office if there is a question whether the time has been tolled due to a defect. Likewise, a defective answer will not operate to delay submission of the motion to the panel while the defective answer is being cured. (Effective 1/01.)

IOP 7.211(C)(3) - Motion to Affirm. A motion to affirm requires that the issues on appeal be so manifestly insubstantial that the plenary appeal process need not occur, or that the issues were not timely or properly raised. As a consequence, although no time period is specified within which such a motion must be brought, a motion to affirm will have the most practical impact if brought immediately after appellant's brief has been filed and well before the appeal has been placed upon the Court's session calendar. (Effective 1/01.)

A motion to affirm is to be accompanied by a supporting brief that substantially conforms to MCR 7.212(C), unless appellant's principal brief argues that the trial court's findings are clearly erroneous; the trial court erred in applying established law; the trial court abused its discretion; or a sentence that is within the sentencing guidelines is invalid. MCR 7.211(A)(3)(a)-(d). In such a case, the motion itself must include a summary of appellee's position, and appellee need only attach to the motion those portions of the transcript that are pertinent to the issue(s) raised in the motion. See MCR 7.211(A)(3). (Effective 1/01.)

IOP 7.211(C)(5)-1 - Motion to Withdraw. Under Anders v California, 386 US 738, 87 S Ct 1396, 18 L Ed 2d 493 (1967), a criminal appointed attorney may move to withdraw from a frivolous appeal upon production of certain proofs. This rule embodies and implements Anders. The clerk's office will strictly enforce the requirements of the court rule because granting the motion may result in affirmance of the conviction and sentence. Failure to meet all requirements of the court rule will result in the mailing of a 21-day warning letter detailing the defects in the motion. If the defects are not cured within 21 days, the motion will be submitted on the administrative motion docket for striking. The moving party may refile it at a later date as long as it conforms to the court rule. (Published 9/98.)

Preparation of a motion to withdraw must include submission of a brief in support that raises potential issues and illustrates why those issues cannot succeed on appeal.

A motion that requests reversal or remand on the merits is not a proper brief in support of a motion to withdraw. According to Court policy, each Anders motion must be accompanied by the presentence information report, regardless of the issues raised in the brief. (Published 9/98.)

Once the clerk's office determines that a motion to withdraw conforms to the court rule, a letter will be sent to the indigent defendant-appellant advising that the motion will be submitted the first Tuesday that is 56 days from the date defendant was served and alerting defendant to the need to respond to the motion by that date. (Effective 1/01.)

Practice Note: The Court will use the same standard as noted in this IOP for motions to withdraw filed by appointed counsel in cases involving termination of parental rights. (Effective 1/01.)

IOP 7.211(C)(5)-2 - Motion for Guidance. Where the appointed attorney is unable to locate his client or determine from the client whether to pursue the appeal, a motion for guidance may be filed under the authority of MCR 7.216(A)(7). Such motions are required to be served on the client at his or her last known address. If the motion for guidance is granted, the appeal is generally dismissed on the premise that the client has abandoned it. The order granting the motion and dismissing the appeal is mailed to the client as well as to the attorneys of record. Such orders permit the client to seek reinstatement of the appeal by filing a written communication requesting that the appeal be permitted to proceed. This written communication will be treated as a motion for rehearing. (Effective 1/01.)

IOP 7.211(C)(7) - Confession of Error. If a prosecutor concurs in the relief requested by a defendant, a confession of error should be filed. It will be submitted on the administrative motion docket and if the Court accepts the confession of error, an order will be entered that grants the relief. A confession of error should be contained in a separate pleading titled, "Confession of Error," to facilitate speedy processing and disposition of the appeal. A motion fee is not required. (Effective 1/01.)

IOP 7.211(C)(7) - Confession of Error. If a prosecutor concurs in the relief requested by a defendant, a confession of error should be filed. It will be submitted on the administrative motion docket and if the Court accepts the confession of error, an order will be entered that grants the relief. A confession of error should be contained in a separate pleading titled, "Confession of Error," to facilitate speedy processing and disposition of the appeal. A motion fee is not required. (Effective 1/01.)

IOP 7.211(E)(2) - Administrative Motion Docket. The court rules permit the submission of certain specified motions to the Chief Judge or another designated judge acting alone. Unless otherwise stated in the court rule, administrative motions are 7-day motions. (Effective 1/01.)

IOP 7.212(A)(1)-1 - Briefs; Appellant; Time to File. The time to file the appellant's brief starts to run when the last timely ordered transcript has been filed with the trial court. The time does not run from the attorney or party's receipt of the notice of filing or from receipt of the actual transcript. If the transcript is already filed or the appellant decides to file a brief without a transcript, the time starts when the claim of appeal is filed or the application for leave to appeal is granted. The late ordering of a transcript, absent permission from the Court of Appeals, does not extend the time to file the appellant's brief. See IOP 7.210(B)(1)-2. (Published 9/98.)

If the transcript has not been timely filed and an involuntary dismissal warning letter has been sent, appellant must secure the filing of the transcript within 21 days of the date of the warning letter or take some action to ensure filing of the transcript, such as filing a motion to show cause against the court reporter, in order for the brief to be timed from the late filing of the transcript. See IOP 7.210(B)(3)(b)-2. (Effective 1/01.)

IOP 7.212(A)(1)-2 - Briefs; Appellant; Motion to Extend Time When Due in 56 Days.

Extensions of time to file an appellant's brief are allowed by stipulation or by motion before the Court. If the time to file the appellant's brief is 56 days, by policy an extension of an additional 56 days is possible. The extension can be achieved by motion alone or by stipulation of the parties followed by a motion. If a motion for extension of 56 days is granted, a stipulation may not be filed for further extensions. If a stipulation is filed for an extension of 28 days, a motion for extension of an additional 28 days will generally be granted. An extension by stipulation can generally be secured retroactively, such as by filing the stipulation with the brief. However, once a case is on case call an extension of time to file appellant's brief cannot be accomplished by stipulation. Regardless when it is filed, the extension of time will run from the date of the events described in MCR 7.212(A)(1)(a)(iii). (Effective 1/01.)

IOP 7.212(A)(2)-1 - Briefs; Appellee; Time to File. The time to file the appellee's brief starts when the appellant's brief is served on appellee. The brief is served when it is mailed or personally delivered. MCR 2.107(C)(3). Even if the appellant's brief does not comply with MCR 7.212(C), the time to file the appellee's brief will generally not be tolled. The answering party may want to contact the clerk's office if there is a question whether the time has been tolled due to a defect. (Effective 1/01.)

IOP 7.212(A)(2)-2 - Briefs; Appellee; Motion to Extend Time When Due in 35 Days.

Extensions of time to file an appellee's brief are allowed by stipulation or by motion before the Court. If the time to file the appellee's brief is 35 days, by policy an extension of an additional 56 days is possible. The extension can be achieved by motion alone or by stipulation of the parties followed by a motion. If a motion for extension of 56 days is granted, a stipulation may not be filed for further extensions. If a stipulation is filed for extension of 28 days, a motion for extension of an additional 28 days will generally be granted. (Effective 1/01.)

IOP 7.212(A)(4)-1 - Briefs; Appellant Brief Late. Unless an involuntary dismissal warning has been sent, the only penalty for a late brief is the loss of oral argument. If an involuntary dismissal warning has been sent and the 21-day period has expired, but the appeal has not been dismissed, the brief will be accepted for filing and costs will be assessed. (Effective 1/01.)

If the appeal has been involuntarily dismissed or remanded to the trial court for the appointment of substitute counsel (in cases where appellant is represented by appointed counsel), a motion to reinstate the appeal or a motion for rehearing of the order to remand must accompany the filing of the brief. See IOP 7.217 for a complete discussion of the involuntary dismissal procedure. (Effective 1/01.)

IOP 7.212(A)(4)-2 - Briefs; Appellee Brief Late. The only penalty for a late brief is the loss of oral argument. The clerk's office will accept a late appellee's brief as long as an opinion or order has not been entered disposing of the appeal and the brief can be forwarded to the panel for consideration before the panel's opinion or order is filed with the Clerk of the Court. See IOP 7.217(A)-5, paragraph 3, concerning appointed counsel's failure to file an appellee brief on behalf of defendant-appellee in appeals filed by a prosecutor's office. (Effective 1/01.)

IOP 7.212(B) - Briefs; Length and Form. Page 1 of a brief starts with the statement of facts. Neither the appellant's brief nor the appellee's brief may exceed 50 pages unless an order, pursuant to motion, has been entered permitting a longer brief. Motions for leave to file briefs in excess of 50 pages must be filed at least 21 days before the due date of the brief. These motions are disfavored, however, and will be granted only for extraordinary and compelling reasons. An untimely motion for leave to file a brief in excess of 50 pages will be returned. (Effective 1/01.)

The left and right margins together must be at least a total of 2 inches. Each margin may be set at 1 inch, or the two margins may be set at varying sizes so that together they total no less than 2 inches. This policy accommodates the use of paper that has been pre-printed with vertical lines at 1.5 inches and .5 inches on the left and the right margins, respectively. All type must be at least 12-point type, including footnotes. (Published 9/98.)

The top and bottom margins must also be at least a total of 2 inches. It is recommended that a top margin of 1 inch and a bottom margin of 1 inch be used. Page numbers may be included in the 1- inch bottom margin. (Published 9/98.)

IOP 7.212(C) - Briefs; Appellant's Brief. The appellant's brief must conform with all the filing requirements stated in MCR 7.212(C). The clerk's office reviews the brief to insure that it conforms to the court rule. If the appellant's brief does not comply with one or more parts of the rule, a letter will be sent to the appellant, with a copy to the appellee(s), informing the appellant of the non-conforming section(s) of the brief and what the appellant must do to correct the brief. The letter will give appellant 21 days to correct the defect(s). The appellant may only correct the defects; no other changes to the brief will be accepted. Typically, the time to file appellee's brief continues to run while awaiting cure of defects of the appellant's brief. The appellee may want to contact the clerk's office if there is a question whether the time has been tolled due to a defect. (Effective 1/01.)

IOP 7.212(C)(4) - Briefs; Jurisdictional Statement. The jurisdictional statement must include the date of entry of the judgment appealed, the date of any motion and order that tolled the time period for filing the claim of appeal, the date of the request for counsel (where counsel is appointed), or the date the claim of appeal was filed (where counsel is retained or appellant is proceeding in pro per). If the jurisdictional statement is missing, the clerk's office will send a letter informing the appellant of the defect pursuant to IOP 7.212(C). (Effective 1/01.)

IOP 7.212(C)(5) - Briefs; Statement of Questions Involved. If the statement of questions is omitted entirely, or if the statement fails to comply with the court rule in a manner that affects the substantial rights of the parties, the clerk's office will send a letter informing the appellant of the defect pursuant to IOP 7.212(C). (Effective 1/01.)

IOP 7.212(C)(6) - Briefs; Statement of Facts. If the statement of facts fails to include references to the transcript, the pleadings, or other document or paper filed with the trial court, the clerk's office will send a letter advising that the brief is defective. If the statement of facts is not corrected to include references to the transcript, the pleadings, or other document or paper filed with the trial court, the appellant's brief may be stricken in accordance with IOP 7.212(I). (Effective 1/01.)

IOP 7.212(C)(7) - Briefs; Standard of Review. If the appellant fails to include the standard of review for each issue or fails to cite supporting authority, the clerk's office will send a letter informing the appellant of the defect pursuant to IOP 7.212(C). (Effective 1/01.)

IOP 7.212(C)(9) - Briefs; Signature. IOP 7.202-1 details the types of "signature" that will be accepted by the clerk's office. A signature is also required on the proof of service. See MCR 2.114(C). (Effective 1/01.)

IOP 7.212(D)(3)-1 - Briefs; Response to Statement of Questions Involved. If the appellee fails either to respond to the appellant's statement of questions involved or to include its own statement of questions involved, the clerk's office will send a letter informing the appellee of the defect pursuant to IOP 7.212(D). (Effective 1/01.)

IOP 7.212(D)(3)-2 - Briefs; Response to Statement of Facts. If the appellee fails either to respond to the appellant's statement of facts or to include its own statement of facts, the clerk's office will send a letter informing the appellee of the defect pursuant to IOP 7.212(D). If the appellee prepares its own statement of facts, it must contain references to the transcript, the pleadings, or other document or paper filed with the trial court. See IOP 7.212(C)(6). (Effective 1/01.)

IOP 7.212-1 - Adoptive Briefs. A party may adopt a brief filed by another party. The adoptive brief should include a cover sheet with the case information and a text page that states that the party is adopting the brief of ______/appellant or ______/appellee, and include the signature of the attorney. A party may not adopt another party's brief and then file its own brief in addition to the adopted brief. The adopting party's rights to oral argument are not affected by the fact that the brief is adoptive rather than original. (Effective 1/01.)

IOP 7.212(E) - Briefs on Cross Appeal. A party may file a joint brief, such as an appellant/cross-appellee brief or an appellee/cross-appellant brief. A combined appellee/cross-appellant brief filed by the date the appellee's brief is due will be docketed as timely filed. A combined appellant/cross-appellee brief filed by the date the cross-appellee brief is due will be docketed as timely filed. If a party chooses to file a joint brief as described, the brief is subject to the 50-page limit in MCR 7.212(B). The brief must be clearly designated as a joint brief, and the appellee or cross appellee section may only be filed if the appellant or cross appellant has filed its brief. The party may also file separate briefs if that format is preferred. (Effective 1/01.)

IOP 7.212(F)-3 - Briefs; Administrative Order 1981-7, Standard 11. An administrative order of the Michigan Supreme Court provides that indigent defendants represented by appointed counsel may raise issues in this Court that their attorneys decline to raise. Supplemental briefs filed under this authority must indicate that counsel was asked to raise the issue(s) but declined. Only one such brief will be permitted, and the issues raised in it may not overlap in any respect with the initial brief filed by appointed counsel. (Effective 1/01.)

IOP 7.212(G)-1 - Briefs; Reply Briefs; Time to File. The time to file a reply brief starts when the appellee's brief is served. The appellee's brief is served when it is mailed or personally delivered. MCR 2.107(C)(3). Typically, even if the appellee's brief does not comply with MCR 7.212(D), the time to file the reply brief will begin to run. The party filing the reply brief may want to contact the clerk's office if there is a question whether the time has been tolled due to a defect. If the reply brief is not filed (received) within 21 days after service of appellee's brief, the reply brief will be returned by the clerk's office and appellant must file a motion to extend time to file the reply brief. A joint reply brief in response to multiple appellee briefs that is filed within 21 days of the last appellee brief filed will be docketed as timely filed. The parties cannot stipulate to an extension of time to file the reply brief, but the Court's policy is to grant a motion to extend the time an additional 14 days. (Effective 1/01.)

IOP 7.212(I) - Non-Conforming Briefs. If a brief does not comply with the applicable court rules for that brief, the clerk's office will notify the parties by letter of the defects contained within the brief and give the filing party 21 days to correct the defects. If no effort is made to correct the defects within that 21-day period, the matter is placed on the administrative motion docket to have the brief stricken. If an effort is made to correct the defects, but not all the defects have been corrected, the party may be given a further opportunity to correct the defects. (Effective 1/01.)

IOP 7.213(B) - Notice of Calendar Cases. After the appellee's brief has been filed or the time to file that brief has expired, the parties are sent a postcard informing them that the case will be placed on the next available case call session. There may be a time lag between the time this postcard is sent and when the case is actually placed on a case call. During this period the lower court or tribunal record is obtained by the Court and the case is screened by the research division for preparation of a staff report. (Published 9/98.) It is advisable at this stage to inform the Court of any scheduling conflicts a party may have in the next few months. Where possible, the Court will accommodate such conflicts. However, to facilitate the movement of cases onto case call, the Court will not honor notices of unavailability covering more than 28 consecutive days. (Effective 1/01.)

IOP 7.213(C) - Priority Cases. Criminal interlocutory, FOIA, child custody, and termination of parental rights cases are given priority status in scheduling matters on the calendar, as are individual cases in which an order to expedite has been issued. (Effective 1/01.)

IOP 7.213(D) - Arrangement of Calendar. The parties are notified in writing at least 21 days before their case is heard as to the date, location, and panel that will hear the case. The parties are also notified as to the order in which the cases will be heard. See the Court's web site (http://courtofappeals.mijud.net) for the current case call schedules. The letter will state the date by which further motions in such cases should be filed, which date will provide the judges with sufficient time to review the motions and issue orders before the date of oral argument. If necessary, motions for oral argument and motions to adjourn will be submitted to the panel before the proper notice of hearing date. Opposing counsel will be alerted by telephone when this occurs. A party can ensure expedited processing if the motion is accompanied by a personally served motion for immediate consideration. (Effective 1/01.)

IOP 7.214-1 - Media in the Courtroom. The Court of Appeals follows the media procedure outlined in Administrative Order 1989-1. (Effective 1/01.)

IOP 7.214-2 - Tapes of Oral Argument. For a period of one year after oral argument, audio tapes of the arguments are maintained for the Court's internal use. An individual seeking access to a tape of oral argument must file a motion stating the reason(s) for the request, together with a motion fee, proof of service on all attorneys or parties who appeared in the appeal, and a 7-day notice of hearing. (Published 9/98.)

If the motion is granted, the Clerk's Office will arrange a time during which the audiotape of oral argument will be played, and such time will be communicated in a notice that is sent to all parties with this order. The preferred method is to play the tape in a courtroom, on courtroom recording equipment, with a court officer in attendance to enforce the terms of the order. Alternate arrangements (on Court property) can be made where necessary in the discretion of the district clerk. Individuals having notice of the motion and the order will be permitted to attend and take notes. Second-generation audiotape recordings may not be made during the playing of the original audiotape of oral argument. (Effective 1/01.)

IOP 7.214(C) - Action Taken at Oral Argument. If a panel at oral argument gives permission to a party or parties to file additional documents or take other action, the presiding judge is responsible for completing a case call information sheet and giving it to the court officer. That information sheet is then forwarded to the district clerk of the district where the argument was held. The filing of subsequent documents is controlled by that information sheet. Any documents that are received by the clerk's office that are unaccompanied by a motion and that do not comply with the instructions on the case call information sheet will be returned by the clerk's office. (Effective 1/01.)

Parties are never to forward correspondence or pleadings directly to the judges on the panel. If case papers are received by a judge's office, they are withheld from the judge's attention and immediately forwarded to the clerk's office for handling. (Effective 1/01.)

IOP 7.215(E)(2)-1 - Issuance of the Opinion or Order. The opinions and orders are sent to all attorneys of record. A copy is also sent to the trial court or tribunal and the clerk of the trial court or tribunal. If an attorney has moved or the file has been reassigned to another attorney within the firm, it is the responsibility of the original attorney to notify the Court of Appeals of that fact. If the Court of Appeals becomes aware that an attorney has moved, but has not been notified that the case has been reassigned to another attorney, the opinion or order will be sent to the original attorney at the new address. (Effective 6/01.)

IOP 7.215(E)(2)-2- Effect of Crime Victim's Rights Act on Issuance of the Opinion or Order. In a criminal case, MCL 780.768a(1)(d), MCL 780.796(1)(d) and 780.828(1)(d) direct the Court to expedite delivery of certain orders or opinions to the prosecuting attorney if that attorney has filed the appropriate notice with the Court. The notice is to be filed if the victim has asked the prosecuting attorney to communicate the result of the appeal. A form notice is carried on the Court's web site at http://courtofappeals.mijud.net. Under the statute, expedited delivery of the documents is required when the conviction is ordered reversed, the sentence is vacated, the case is remanded for a new trial, or the prosecuting attorney's appeal is denied. (Effective 6/01.)

Service of the prosecuting attorney's notice on all other parties to the appeal is required by the Court. Upon receipt of the prosecuting attorney's notice, any other party to the appeal is entitled to receive a copy of the order or opinion in the same manner as the prosecuting attorney by providing the Court with notice of the facsimile number or electronic mail address where the order or opinion is to be directed. The defendant's request can be made by letter filed with the Court. (Effective 6/01.)

Notification of such a request by either the prosecutor or the defendant must be filed with the Court prior to issuance of an order or opinion that meets the statutory criteria. (Effective 6/01.)

IOP 7.215(F)-1 - Execution of Judgment, Return of Record. Under MCR 7.210(H) the lower court record is returned to the trial court or tribunal clerk after decision. This occurs after expiration of the time in which a timely motion for rehearing could be filed in the Court of Appeals ora timely application for leave to appeal could be filed in the Supreme Court. If neither pleading is filed, the record will then be returned. (Effective 6/01.)

IOP 7.215(F)-2 - Return of Documents. If exhibits or transcripts are received directly from a party, those exhibits or transcripts will be returned to the clerk of the lower court or tribunal, with the lower court record, for distribution, unless the party specifically requested in writing that the documents be returned to the party. If specifically requested, the clerk's office will make every effort to return the exhibits or transcripts to the party who sent them. (Effective 6/01.)

IOP 7.215(H)(1)-1 - Time to File Motion for Rehearing. A motion for rehearing of an opinion or order must be filed within 21 days of the order or opinion sought to be reconsidered. The clerk's office does not accept any motion for rehearing that is not filed within that 21-day period, and any such motion will be returned. The same is true of a motion seeking permission to file a late motion for rehearing. (Effective 6/01.)

IOP 7.215(H)(1)-2 - Form of Motion for Rehearing. A motion for rehearing cannot exceed 10 pages and must be a single document. Because the court rule does not require a separate table of contents or index of authorities, they are included within the 10 pages. If a motion for rehearing exceeds 10 pages, the moving party will be notified in writing that the motion for rehearing does not comply with the page limit and will be given an opportunity to submit a motion for rehearing within 7 days that does not exceed 10 pages. (Effective 6/01.)

IOP 7.215(H)(1)-3 - Attachment of Order or Opinion. All motions for rehearing must be accompanied by a copy of the order or opinion of which rehearing is sought. (Effective 6/01.)

IOP 7.215(H)(2)-1 - Length of Answer to Motion for Rehearing. An answer to a motion for rehearing cannot exceed 7 pages. Because the court rule does not require a separate table of contents or index of authorities, they are included within the 7 pages. If the answer to the motion for rehearing exceeds 7 pages, the answer will not be accepted for filing. The clerk's office will attempt to notify the answering party in a timely fashion that an amended answer not exceeding 7 pages needs to be filed, but the Court will not delay submission of the motion for rehearing while waiting for a conforming answer. (Effective 6/01.)

IOP 7.215(H)(2)-2 - Time to File Answer to Motion for Rehearing. An answer to a motion for rehearing must be filed within 14 days after the motion is served on the party. An answer that is filed after this date will be returned to the filing party. A motion for leave to file a late answer will be required. (Effective 6/01.)

IOP 7.215(I) - Resolution of Conflicts in Court of Appeals Decisions. Panels of the Court of Appeals are not permitted to issue opinions that are in conflict with earlier published opinions of the Court. Rather than issue a conflicting opinion, the second panel's opinion must reach a result consistent with the earlier decision, but the second panel will state in its opinion that it would have reached a different result but for the controlling nature of a prior published decision of this Court. (Effective 6/01.)

Once such an opinion is published, MCR 7.215(I) provides the mechanism by which the conflict will be resolved. Careful note should be taken of the fact that the polling procedure contained in MCR 7.215(I)(3)(a) will not be invoked if the Michigan Supreme Court has granted leave to appeal in the controlling case. Thus, the parties in the second appeal are responsible for monitoring the Supreme Court's orders granting leave to appeal and for understanding the impact of such an order on their time for rehearing or application for leave in the second case. (Effective 6/01.)

IOP 7.216(A)(7)-1 - Miscellaneous Relief. This subsection of MCR 7.216 provides the basis for the filing of a motion for guidance in an appointed counsel case. See IOP 7.211(C)(5)-2. (Effective 1/01.)

IOP 7.216(A)(7)-2 - Bankruptcy of a Party. Any party who becomes aware of a proceeding in bankruptcy that may cause or impose a stay of proceedings of a case pending in this Court should immediately file written notice with the clerk's office. Any bankruptcy stay order should be attached to the notification, and the filing should include an explanation why the bankruptcy proceedings impact the pending case. An opposing statement from any other party to the pending case may be promptly filed. It is recommended that all filings be served on all parties to the appeal, with proof of service provided to the clerk's office. (Effective 1/01.)

If it is concluded that the bankruptcy stay does not apply to the case, the clerk's office will notify the parties by letter and further pursuit of a stay of proceedings must be by formal motion. If it appears that the bankruptcy stay applies to the appeal, the clerk's office will recommend that the Court enter an order directing the administrative closure of the pending case until such time as the bankruptcy stay has been lifted, the bankruptcy proceedings have been dismissed, or a party to the case has obtained relief from the stay. The order will permit the administrative reopening of the case upon the clerk's office receipt of notice of one of the above events. A party who believes that the order was improperly entered may file a motion for rehearing under MCR 7.215(H). If the case is reopened, either on rehearing or after the occurrence of one of the listed events, it will resume where it left off when it was administratively closed. New briefing will not be permitted except upon leave of the Court. (Effective 6/01.)

IOP 7.216(A)(10) - Dismissal for Lack of Jurisdiction or Failure to Pursue Appeal in Conformity with the Rules. This subsection of MCR 7.216 is commonly used by the Court as the basis for administrative dismissals on the Court's own motion. (Effective 1/01.)

IOP 7.217(A)-1 - Dismissal. This rule is employed by the Court to exercise control over its docket. The clerk's office maintains case management lists that are referenced to the filing deadlines for the docketing statement, stenographer's certificate, transcript, and brief of appellant (or cross-appellant). When one of these filings is overdue, the clerk's office will mail to the attorneys or unrepresented parties a letter warning that if the deficiency is not cured within 21 days of the date of the letter, the appeal will be submitted on the involuntary dismissal docket. Where the letter is addressed to appointed counsel, a copy of the letter is mailed to the office of the Michigan Appellate Assigned Counsel Service (where appropriate). [See the Overdue Brief section below for information on appointed counsel's failure to file a brief on behalf of a defendant-appellee in a prosecutor's appeal.] (Effective 1/01.)

IOP 7.217(A)-2 - Overdue Docketing Statement. Filing of the missing docketing statement within the 21 days, in the form required by the Court, will completely cure the deficiency. Filing of the missing docketing statement after the 21 days, but before submission on the involuntary dismissal docket will avoid dismissal but will still result in the assessment of costs. See MCR 7.219(I). The current practice of the Court is to set such costs at $200. Costs are assessed against the attorney. Filing of the missing docketing statement after an order is entered dismissing the appeal will not automatically reinstate the appeal. Appellant will be required to file a 56-day motion for reinstatement following dismissal under MCR 7.217(D). Even if reinstatement is granted, the $200 in costs will generally be assessed. (Effective 1/01.)

IOP 7.217(A)-3 - Transcript Not Ordered. Filing of the certificate that the transcript has been ordered within the 21 days will remove the case from eligibility for submission on the involuntary dismissal docket. Counsel should simultaneously move for an extension of time to order the transcript containing an explanation for the delay so that, when it is filed, the filing date can serve as the starting point for computing when appellant's brief is due. Otherwise, the brief cannot be docketed as timely filed. (Effective 1/01.)

Filing an overdue certificate of ordering transcript after the matter has been submitted on the involuntary dismissal docket is treated in the manner described above for docketing statements. (Effective 1/01.)

IOP 7.217(A)-4 - Overdue Transcript. Filing of the transcript within the 21 days of the involuntary dismissal warning letter and immediately notifying the Court of that filing will remove the case from eligibility for submission on the involuntary dismissal docket and provide the basis for the filing of a timely appellant's brief. (Effective 1/01.)

Filing an overdue transcript after the matter has been submitted on the involuntary dismissal docket is treated in the manner described above for docketing statements. However, because a party is entitled to the effective assistance of appointed counsel on appeal, the Court will not dismiss appeals that are being handled by appointed counsel. Rather, remand for the appointment of substitute counsel is the customary sanction for an appointed attorney's failure to ensure the timely filing of the transcripts in any appeal. (Effective 1/01.)

IOP 7.217(A)-5 - Overdue Brief. Filing of the brief within the 21 days will remove the case from eligibility for submission on the involuntary dismissal docket. The time for filing the brief is not automatically extended, it will be docketed as untimely filed. (Effective 1/01.)

IOP 7.217(C) - Other Action. The Court's authority to remand for the appointment of substitute counsel is based on MCR 7.217(C), which states that the Court may take "such other action as it deems appropriate," in any instance of failure to prosecute an appeal to hearing as required by the court rules. Because such remand orders are not a dismissal, a motion for reinstatement under MCR7.217(D) is inapplicable. Rather, a motion for rehearing under MCR 7.215(H) is applicable and must be brought within 21 days. See IOP 7.217(D). Because there is no means of extending the time to move for rehearing of such an order, it is important to ensure that the appropriate deadline is met. (Effective 6/01.)

IOP 7.217(D) - Reinstatement or Rehearing? A motion for reinstatement is a motion for rehearing as provided in MCR 7.215(H), except that an appellant has more time to seek relief when the case has been dismissed under MCR 7.217. Motions for reinstatement may be filed within 56 days of the date of the order dismissing the appeal. If the dismissal was ordered under a different rule [such as MCR 7.201(B)(3), MCR 7.211(C)(2), or MCR 7.216(A)(10)], the appeal can be reopened only by a motion for rehearing filed within 21 days of the order of dismissal. Further, if the case was closed by order denying an application for leave to appeal, reconsideration of that order may only be obtained by motion for rehearing filed within 21 days of the order denying leave. Because there is no means of extending the time to move for rehearing, appellant must ensure that the appropriate deadline is met. A motion for rehearing of an order denying a motion for rehearing or reinstatement will not be accepted for filing. (Effective 6/01.)

Practice Note: A motion for reinstatement or rehearing under this rule has the most potential for success if it is accompanied by the filing (or evidence of the filing) that was formerly omitted (the missing notice of filing transcript, the missing docketing statement, or the missing brief). Further, the motion for reinstatement must show mistake, inadvertence, or excusable neglect on the part of the moving party. (Effective 1/01.)

IOP 7.218(A) - Dismissal by Appellant. This rule provides the vehicle by which an appellant or plaintiff in an original action may successfully dismiss his or her own case without the necessity of securing the signatures of every opposing counsel or party on a stipulation to dismiss. A motion to withdraw the case under this rule will be held by the clerk's office until the first Tuesday that is 7 days from the date of service of the motion on the other parties. If no answer in opposition is filed, a clerk's order of dismissal will be entered. (Effective 1/01.)

If an answer in opposition is filed within 7 days from the date of service, the matter will be submitted to a panel of three judges for disposition. As with any other motion, a motion fee is required in support of a motion to withdraw. (Effective 1/01.)

IOP 7.218(B) - Stipulation to Dismiss. If the parties agree to dismiss the case, a stipulation to dismiss may be filed under this rule. The stipulation must bear the signature of each attorney or party that is still active in the case (a party that was earlier dismissed or who never appeared is not required to sign). See IOP 7.202-1 for information on the types of "signatures" that are accepted by the clerk's office. Further, if counsel for a party is appointed, that party's signed personal affidavit in support of the stipulation must be filed with the stipulation that is signed by the attorneys. If the party is a minor (as in a delinquency proceeding), the affidavit must be signed by a parent or other legally responsible adult. In all cases, the caption on the stipulation must match the order appealed from, and any lower court number that is stated on the face of the filing must match the lower court number of the appeal being dismissed. (Effective 1/01.)

If the case has not gone to a case call panel, a clerk's order of dismissal will be entered when a conforming stipulation to dismiss the case is filed. The clerk's order will be sent to the parties and to the trial court judge and clerk. The order will reproduce the parties' specifications as to costs and as to dismissal with or without prejudice. If neither subject is addressed in the stipulation, the order will merely state that the dismissal is without costs. (Effective 1/01.)

If the case has gone to a case call panel, it is discretionary with the panel to accept a stipulation to dismiss. If the Court accepts the stipulation, the Court's order of dismissal will typically order that the dismissal is with prejudice, regardless of what the stipulation specifies. (Effective 1/01.)

Partial dismissals by stipulation may be secured by signature of all of the parties. For instance, one of multiple appellants or appellees may be dismissed without dismissing the entire appeal. Or where more than one lower court number is represented in a single appeal, a dismissal of that part of the appeal represented by just one of those numbers may be effected. (Effective 1/01.)

Stipulations to dismiss will not trigger a clerk's order of dismissal if fees are outstanding, if the case involves a class action, or if the case has been submitted on a session calendar. In the latter two instances, an order of a three-judge panel of the Court is required. (Effective 1/01.)

IOP 7.219(I)-2 - Collection of Costs Assessed by the Court. The Court's power to assess costs against attorneys or parties is backed by a carefully monitored and vigorously enforced collection procedure. (Published 9/98.)

Failure to timely pay costs results in (1) the generation of a warning letter sent by first-class mail; followed by (2) the issuance of a personally served order to appear before the Court and show cause why the debtor should not be held in contempt for failure to pay the costs that have been assessed. If the debtor does not appear in response to a show cause order, the Court will enter an order directing the clerk's office to prepare and issue a bench warrant for the arrest of the debtor. If an order to show cause is issued, imposition of additional costs is likely. (Effective 1/01.)

AUTHORS