Volume 2, Number 3, May 1997

Court of Appeals Holds Voir Dire Transcript Must Be Provided on Appeal

Court Rule Held Unconstitutional

Pursuant to a request from the Michigan Judges Association and over the objection of the criminal appellate defense bar, the Michigan Supreme Court in 1994 altered the court rules (MCR 6.425 (F) (2) and MCR 6.433 (D)) to eliminate automatic preparation of voir dire transcripts on appeal for indigent defendants. Effective July 1, 1994, indigent defendants could obtain voir dire transcripts for appeal purposes only when the jury array had been challenged at trial, all peremptory challenges had been exhausted or the defendant was sentenced to mandatory life without possibility of parole. Indigent defendants could also obtain a copy of the voir dire transcripts by showing "good cause." Defendants with funds retained the ability to pay for preparation of the voir dire transcript without condition.

Since the change, the appellate defense bar has continued to challenge the denial of voir dire transcripts to indigents. In People v. Walker, 450 Mich 917 (1995), the Michigan Supreme Court denied leave on this issue. Justice Levin, however, joined by Justice Cavanagh, published a dissent to the leave denial which held that failure to provide voir dire transcripts to indigent defendants was an equal protection violation, citing Griffin v. Illinois, 351 US 12, 19; 76 S Ct 585; 10 L Ed 891 (1956). The last section of Justice Levin's dissent was an invitation to continue to challenge the rule, despite its adoption by the Supreme Court.

In People v. Bass, ___ Mich App ___ ; ___ NW2d ___ (No. 178342, April 25, 1997) (1997 Mich App Lexis 148), the Court of Appeals accepted this invitation. In a published per curiam opinion, Judges Wahls, Hood and Jansen, while ruling against the equal protection challenge brought by Assistant State Appellate Defender F. Michael Schuck, found Mr. Schuck's ineffective assistance of appellate counsel argument to be "troubling" enough to rule in favor of the defendant on this aspect, effectively declaring the court rules unconstitutional to the extent that they deny voir dire transcripts to indigent defendants.

Stating that the Supreme Court's Administrative Order 1981-7, 412 Mich 1xv (1981), affirmed by Administrative Order 1985-3, 421 Mich 1xvii (1985), adopted minimum standards as proposed by the State Appellate Defender Commission through legislative mandate, the panel noted a conflict with the court rules. The standards demand that appellate counsel request and review all transcripts and lower court records. Citing Hardy v. United States, 375 US 277; 84 S Ct 424, 11 L Ed 2d 331 (1964), the Court held that "[i]n order to faithfully discharge the duties imposed by the Appellate Defender Commission and the Supreme Court, counsel must have access to transcripts of all the proceedings so that he can raise all issues of legal merit." Bass, supra at pre-advance sheet, p. 9. The Court determined that the voir dire transcript "must be provided in all cases where appointed appellate counsel was not the indigent defendant's trial counsel." Id.

F. Martin Tieber

Court Rules Amended Effective September 1, 1997

On April 30, 1997, the Michigan Supreme Court ordered the following court rules amended effective September 1, 1997: MCR 7.204, MCR 7.205, MCR 7.211, MCR 7.212, and MCR 7.215. In addition, the Supreme Court repealed AO 1994-4, also effective September 1, 1997.

MCR 7.204's amendment requires that appellants now file two copies of the docketing statement. In addition, the amendment allows the Court of Appeals to change the docketing statement's required information. Although the new rule mentions "forms provided by the Clerk's office . . . ," it is unknown at this time whether the clerk's office will actually be providing forms when claims of appeal are filed.

The amendment to MCR 7.205 requires an appellant filing an application for leave to appeal to "alert the clerk" if action is required "within 56 days of the date the application is filed . . . by prominent notice on the cover sheet or first page of the application, including the date by which action is required."

MCR 7.211 now requires that motions to affirm or motions for peremptory reversal may only be granted by a unanimous decision of the judges who decided the motion. The order denying either motion may identify any judge wh would have granted the motion.

MCR 7.212 will require the jurisdictional statement in criminal appeals to state "the date the request for appointment appellate counsel was filed. Where appellate counsel in criminal cases is retained, or where the appellant is appearing in pro per, the jurisdictional statement must contain the date on which the claim of appeal was filed or the application for leave to appeal was granted.

The amendment to MCR 7.212 also changes the time frame within which motions for leave to file briefs amicus curiae must be filed. Under the amendment, a motion for leave to file an amicus brief "must be filed within 21 days after the appellee's brief is filed. If the motion is granted, the order will state the date by which the brief must be filed." In addition, amicus briefs are "limited to the issues raised by the parties."

Finally, by adding section H to MCR 7.215, the Supreme Court has codified the provisions of AO 1994-4. MCR 7.215(H) describes the precedential effect of decisions of the Court of Appeals published after November 1, 1990, and prescribes the method to be used for conflict resolution. In addition, the rule allows the Court of Appeals to dispense with oral argument in cases being heard by the conflict resolution panel. Finally, the rule allows the decisions of the panel to be by "by published opinion or order."

Recent Decisions

Some of the decisions of the Michigan Supreme Court and the Michigan Court of Appeals are courtesy of the Michigan Court of Appeals and the Michigan Appellate Digest. They are reproduced under license.

Michigan Supreme Court:

Private Agreement May Not Establish Powers of Circuit Court

An arbitration agreement which calls for an entry of a circuit court judgment must conform to statute and court rule. The pertinent court rule does not permit parties to use the courts as a resource for advisory opinions to guide the arbitrator. In this case, the parties agreed to submit to arbitration a dispute regarding the valuation of stock involved in the purchase of a corporation by the defendant corporation. The arbitration agreement submitted the valuation dispute to an accounting firm, but specified that issues of contract interpretation and discovery were to be submitted to the circuit court for resolution. To the extent that the agreement attempts to fix the responsibilities of the public court in arbitration, it is invalid. However, the matter proceeded through arbitration and court determinations without protest by the parties or the circuit court, and thus no harm to the integrity of the court system or the parties resulted. The prohibition against private agreements establishing the powers of public institutions is prospective only. Brucker v. McKinlay Transport, 454 Mich 8; 557 NW2d 536 (1997).

Prosecutor May Appeal Defendant's Sentence

A prosecutor may appeal any matter not precluded by double jeopardy protections. A sentence is subject to appellate review, and thus a prosecutor may appeal a defendant's sentence. People v. Mitchell (Charlie), 454 Mich 145; 560 NW2d 600 (1997)

Michigan Court of Appeals

Vexatious Appeal Sanctions

A party who grossly disregards the requirements of a fair presentation of the issues to the court on appeal may be sanctioned with the imposition of attorney fees. In this case, the plaintiffs failed to acknowledge the existence of controlling law contrary to their position. Further, the plaintiffs unjustifiably sought relitigation of previously rejected claims. An award of attorneys fees is appropriate on appeal. Energy Reserves, Inc v. Consumers Power Co, 221 Mich App 210; ___ NW2d ___ (1997)

No Appeal By Right Before Order Entered

An appeal by right may be taken after a trial court order is entered, and not before. In this case, an order awarding attorney fees was entered after the claim of appeal on the underlying judgment was taken, and no subsequent claim was filed regarding the order of attorney fees. The defendant's argument that the award of fees was not erroneous was not properly appealed. Morris v. Clawson Tank Co., 221 Mich App 280; ___ NW2d ___ (1997).

Filing Application for Stay Bond Insufficient to Toll Period During Which Writ of Restitution May Not Be Issued

The purpose of a stay bond generally is to protect the appellee from losses which could result from the inability to enforce the judgment while it is stayed pending appeal. For the purpose of tolling the period during which a writ of restitution may not be issued, the filing of an application for bond together with the filing of an appeal does not protect the appellee during the time between expiration of the ordinary stay period and the time the actual bond is filed. The filing of an application for a bond is not sufficient to invoke the tolling of the period. To stay an execution, a bond must be filed before execution. The filing of a claim of appeal together with a bond or escrow order of the court stays all proceedings, including a writ of restitution issued but not executed. Sun Valley Foods Co. v. Ward, 221 Mich App 335; ___ NW2d ___ (1997).

A Word from the Chair

Mary Massaron Ross

Political commentators have been discussing judicial politics with regularity this year. The New York Times reports on Republican efforts to seek greater influence in naming judges to the federal appellate courts. A proposed change in the procedures by which the Senate gives "advice and consent" to presidential nominees to the federal appellate bench would reportedly give a smaller number of senators veto power over nominees that are not sufficiently conservative or unsuitable for another reason. Meanwhile Brian Dickerson, a columnist for the Detroit Free Press, castigates the 9th Circuit Court of Appeals for overturning a federal district court opinion that struck down a California initiative dismantling affirmative action. Dickerson calls the 9th Circuit appellate judges demagogues because they wrote an opinion that overturned the federal district court while cautioning that striking down a democratically enacted initiative "tests the integrity of our constitutional system . . ." Feminists have criticized the California judge who awarded custody of his two children to O.J. Simpson without permitting testimony regarding the claim that he murdered their mother. Campaigns for the Michigan Supreme Court last year involved harsh attacks on judicial opponents for past opinions with much of the debate focused on the result and little discussion of the analysis employed in reaching that result.

These incidents reflect a troubling trend in public discourse about judicial selection and performance. Hyperbole, vitriol, and over-simplification mar the public debate. A soundbite mentality has replaced the thoughtful discussion of complex issues. While these issues are not new, the intensity and animosity with which they are being argued in the media today breeds suspicion of the courts and adds to public misperception of the role of the judiciary in our constitutional system. At the risk of adding to an already overheated and unenlightening debate, I thought I'd take Shannon's soap box approach and use my column to comment on politics and the judiciary.

The proper role for the judiciary in a constitutional democracy has been a source of tension since the Constitution was written (and before). It was a matter of concern to Thomas Jefferson who feared that judges, if freed from a constraining text, would "place us under the despotism of an oligarchy." It was a focus for James Madison who, along with John Marshall, believed in the importance of judicial review with the Supreme Court serving as a guardian of the republic. The need for judicial restraint to ensure principled decision-making under a rule of law is as significant an issue today as when the federalists debated the newly drafted Constitution. The need for an independent judiciary to protect the public (and individuals) from government decisions that are contrary to Constitutional limitations on the exercise of power has likewise remained.

But today's public debate lacks the sense of balance between these two opposed but equally valid views. When F. Scott Fitzgerald said that the "test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function," he might have been commenting on the Founders' genius. Equipoised between a fear of the rabble trampling the rights of minorities and a desire to prevent a judicial oligarchy, the Founders separated the three branches of government, created a federal system with power distributed between a national government and the states, and created a lifetime judiciary to resolve disputes about the meaning of the Constitution. This contrapuntal approach to government represented the Founders' lasting solution to the danger from tyrannies created by a factionalized majority and tyrannies created by a judicial oligarchy that, as Jefferson feared, would "advanc[e]1/4its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped1/4" with liberty lost to the federal courts.

But although the Founders could hold these opposing ideas in their minds, deliberate together, and arrive at a solution that dealt with both, we seldom see such brilliance today. Dickerson's article trivializes the 9th Circuit's concern about a question that is fundamental to a democracy. He misses the point that if judges merely weigh the policy choices of the legislature or strike down initiatives that have been duly enacted by a vote of the people because the measure is a poor public policy, we have become the judicial oligarchy Jefferson feared. Yet the conservatives in the Senate address these issues by further politicizing the appointment process, an approach that is likely to create as many problems as they claim to want to fix. Threatening judges with impeachment for issuing result-oriented opinions calls into question the independence of the judiciary. Holding up judicial appointments for months because the philosophy of the President and his nominees differs from that of the Senate majority only heightens the polarization of the courts and encourages a result-oriented evaluation process.

James Madison wrote that the biggest danger to our republic was factionalism which could tear the country apart by uniting citizens with a common passion antithetical to the interests of the rights of other citizens or the community as a whole. Today's judicial politics has all the hallmarks of the factionalism that Madison feared. Past debates led to the unsuccessful attempt to impeach Justice Chase and Roosevelt's infamous court-packing scheme. Ideologues on both sides fail to search out nominees with a sense of judicial humility, a history of thoughtful restraint, and a sense of integrity to the concept of the rule of law. Judicial moderates might be expected to write opinions that embody the notion that the courts in our Constitutional system serve as a bulwark to protect personal freedoms only so long as the judges adhere to the constitutional balance of powers that calls for deference to legislative enactments. But such moderates have not been sought out by political leaders because their judicial opinions and philosophies are too uncertain to ensure that the ideologues on both sides can reach the result they seek on controversial issues. Madison's antidote to such factionalism was to ensure that the polity was large enough that the factions would have to compromise with each other in order to govern. One hopes that this will be the result as these judicial politics play themselves out over the coming years.

Shannon's Soapbox

"The opinion of the Court of Appeals shall have no precedential force or effect." So says the Michigan Supreme Court when it "depublishes" an opinion of the Michigan Court of Appeals, usually without modifying the decision. Depublication is a creature of the "first out" rule, AO 1994-4, but beyond that it is anybody's guess how lawyers and judges should deal with depublished cases that opine on issues they are advocating or adjudicating. I can report that closer examination sheds little light.

Background

Judge Clifford Taylor and his law clerk, Bruce Edwards, published a list of 20 depublished cases in the August 1996 Appellate Practice Section Newsletter (Vol 1, No 4 at 4). Not long after, Paul Taglia, a practitioner in St. Joseph, Michigan, asked the State Bar's Executive Board to look into the practice because of inconsistencies in how some legal publishers were (or were not) noting the "depublication" event.

The Section, one of the groups asked by the Executive Board to comment, sent a letter as reported in the last Newsletter (Vol 2, No 2 at 8). It also formed an ad hoc committee to look more generally into problems with the first out rule, including nonpublication as well as depublication. A story about a letter the Section recently sent to Chief Justice Mallett and others, suggesting that the first out rule might benefit from a fresh look, appears on page 6 of this Newsletter.

In re Loose

The latest depublished cases are In re Loose, 201 Mich App 361 (1993), and In re Loose (On Remand), 212 Mich App 648 (1995), both depublished at 453 Mich 960 (1996). Antoinette Loose asked the Wayne County Circuit Court to exercise superintending control over the Wayne County Civil Service Commission after it determined that she had failed to give her employer "sufficient notice"=AD a gloss the commission placed on a notice requirement in a collective bargaining agreement =AD of the reason for her absence from work. Her employment was terminated because of her absence.

The circuit court said the commission erred on the law in interpreting the collective bargaining agreement. In the first appeal Judge (now Justice) Marilyn Kelly writing, the Court of Appeals reversed the circuit court, agreeing with the commission that the agreement was ambiguous and needed interpretation, and disagreeing with the trial court that the commission made a clear error of law.

The Supreme Court, without specifically vacating the Court of Appeals' decision, remanded for reconsideration in light of its intervening decision in In re Payne, 444 Mich 679 (1994). The Court of Appeals, dividing 2-1, stuck to its guns on remand.

Two legal questions were discussed in the remand opinions: (i) The application of Payne in this case; and, (ii) how the law-of-the-case doctrine operates on remand from the Supreme Court.

Judge Kelly dissented, reversing her previous view of the case. She thought the majority was wrong on the law-of-the-case question because the Supreme Court had effectively, if not explicitly, vacated the first opinion, leaving no law of the case to defer to.

Applying the Payne standard, which she analyzed at some length, she concluded that the notice requirement in the bargaining agreement was not ambiguous and that the commission's decision was not supported by competent, material and substantial evidence on the whole record. She would have affirmed the trial court.

The Supreme Court, 5-2, denied leave to appeal and depublished both opinions. Justices Levin and Cavanagh would have granted leave and would not have depublished.

Let's say you have a case, as lawyer or judge, involving a Supreme Court remand in-light-of-some-case where the first appellate opinion is not specifically vacated. On remand, what deference is owed to the first opinion after the Court of Appeals considers the in-light-of opinion and finds it harmonious? (Humor me and assume no other authority on the question.)

Perhaps the Supreme Court wasn't thinking of the law-of-the-case issue at all when it depublished these two opinions, since the question didn't exist in the first one. On the other hand, the Payne decision trumps anything the Court of Appeals said about the standard of review of commission decisions (particularly in the first opinion), so why depublish even if the majority got it wrong in the second opinion? And if Justice Kelly got it right in her dissent, why wasn't leave to appeal granted?

Presumably Ms. Loose cared mostly about the outcome and other parties (by the time of the remand an amicus was writing) cared more about the interpretation of the collective bargaining agreement and, perhaps, the standard of review of commission decisions in superintending control actions. My guess is that none of the parties cared much about the finer points of the law-of-the-case doctrine. Still, that doesn't prove the Supreme Court didn't depublish, at least in part, to disapprove of the law-of-the-case discussion.

One can debate the question for hours, but ultimately it is unknowable whether the Supreme Court gave even a passing thought to the law-of-the-case doctrine when it depublished.

Back to my hypothetical case: Our judge or lawyer might treat the second opinion like an unpublished decision, arguing for the persuasive value of either Judge Taylor's or Justice Kelly's opinion on the law of the case. Those favoring Judge Taylor's view would speculate that depublication was unrelated to the law-of-the-case issue; those favoring Justice Kelly's dissent might speculate that depublication tended to support her position.

A different approach is to argue that the opinions are so tainted by depublication that they become untouchables =AD not to be mentioned under any circumstances. This approach seems more popular with judges than advocates, although depublished opinions have been cited for their persuasive value in later cases. My vote is to treat them as MCR 7.215(C)(1) opinions that need a little extra explaining.

People v. Fultz

Depublication is even possible in a calendar case. In People v. Fultz, 211 Mich App 299 (1995), reversed 453 Mich 934 (1996), the Supreme Court decided a calendar case in a two-paragraph order adopting the view of the dissenting judge in the Court of Appeals. But the dissenting judge had agreed with the legal reasoning of the majority, disagreeing only as to the application of the law to the facts.

This prompted the Supreme Court to depublish "that portion of the Court of Appeals opinion resolving the election of forum issue against the prosecutor," even though one might have thought the outright reversal was depublication enough. Justice Levin, who regularly dissented on this issue, called the depublication "gratuitous."

Perhaps the Supreme Court feared that the dissent's agreement with the majority on the election of forum issue, coupled with the Supreme Court's reliance on the dissent, might be viewed as resuscitating the holding.

The Supreme Court said it was "unnecessary" to reach the election of forum issue in light of the finding that the probate court had abused its discretion in denying the prosecutor's motion to waive jurisdiction to the circuit court. Perhaps, but it certainly would have been useful to address the issue.

The issue will arise again and, when it does, the lawyers and the judges in the later case will know only that a majority of the justices felt that prosecutors should not be saddled with the Fultz holding on the issue. If the holding is wrong, the Court with a little more work in a calendar case it had already heard could have put the issue to rest. If the holding is right, the Court has created an obstacle to justice it could have avoided by simply omitting the depublication sentence.

Non-merit Depublications

Interestingly, some depublication orders and some recent expressions of desire to depublish made by fewer than the needed four justices give reasons that reflect, not disagreement with the rationale of the Court of Appeals, but a feeling, in light of some obstacle to Supreme Court review (death, settlement, timing), that it would be better to depublish. Were I a Court of Appeals judge, I'd wonder why this was reason enough to depublish my work.

In In re Deposition of Prange (On Remand), 214 Mich App 268 (1995), app dismissed 451 Mich 921 (1996), the Court of Appeals opinion was depublished because the case was settled in the trial court, mooting the application pending in the Supreme Court.

In People v. Lopez (After Remand), 202 Mich App 437 (1993), app dismissed 447 Mich 427 (1994), the defendant died while the prosecutor's application for leave was pending from the Court of Appeals' second remand for resentencing. The Supreme Court depublished "in light of the death of the defendant," but at least it did so in big print. Most depublications occur in tiny print at the back of Michigan Reports.

In Tiger Stadium Fan Club v. Governor, 21 Mich App 439, lv den 453 Mich 865 (1996), two justices said that, "given the extreme time constraints in which the case is presented in this Court and the significant questions decided by the Court of Appeals," they would depublish.

This case involved an attempt to block a grant of monies for public infrastructure improvements related to the construction of a new baseball stadium. The Court of Appeals decided the case 29 days after submission and the Supreme Court denied leave to appeal 40 days later.

The justices who would have depublished agreed that the right result was reached, but thought it better to nullify a complex, 18-page opinion on two extremely esoteric legal questions in light of the time crunch. Whether right or wrong on the merits, however, this opinion cannot be wrong merely because the author had only a month to write.

In Heinz v. Auto Club Ins Ass'n, 214 Mich App 195 (1995), lv den 453 Mich 911 (1996), reconsideration den 558 NW2d 728 (1997), one justice said in the 1997 order that depublication was warranted because: "(a) There is no breakdown of figures allowable to various services; and (b) the Court of Appeals opinion is binding and will be broadly read to cover all expenses of a personal representative including all attorney fees."

The Court of Appeals, affirming a summary disposition, held that the expenses contemplated by §3107 of the no-fault act were not limited to medical care but included the costs associated with a guardian and conservator appointed for a party incapacitated in an auto accident. Nothing in the opinion suggests that the appellant insurer disputed the amount of the costs.

Should an opinion that correctly decides the only issue raised be depublished because the parties did not raise other issues that might have narrowed or clarified the decision? One would think the clarification should await a later case, as so often happens. Depublication might suggest that §3107 covered only medical care.

Because depublication decisions sometimes are motivated expressly by such considerations of expedience, it seems fair to assume that the more common depublication-without-reason order may sometimes result from similar reasons, at least in the minds of some justices voting to depublish.

This is a strong argument in favor of using depublished cases for their persuasive value, as though they had never been published. For not only is it impossible to know exactly what merit-based concerns may have motivated the Supreme Court to depublish—it is not even possible to be sure that four justices had some merit-based concern.

Brian G. Shannon

Section Urges Reevaluation of First Out Rule

The Council, at its April meeting, approved the report of an ad hoc committee formed to review the "first out" rule, AO 1994-4 (continued indefinitely by AO 1996-4), and related issues of nonpublication and depublication of Court of Appeals decisions. Chairperson Mary Massaron Ross has written to Chief Justice Conrad Mallett and senior bar officials, asking that the first out rule be reevaluated in light of certain unexpected consequences the rule has had since 1990 when it was first implemented by AO 1990-6.

The letter recognizes that the first out rule "certainly has had its intended beneficial impact of providing litigants and the judiciary at both the trial and appellate court levels with much greater certainty about the state of the law." But the procedure also "causes confusion among the bench and bar."

The confusion arises "because generally there is no reason given for exactly what is wrong with the rule applied by the Court of Appeals in a depublished case, or what rule should take its place." This is inconsistent with the view that the Supreme Court should both state what the law is and explain why.

Another consequence of the first out rule is an apparently increased tendency in the Court of Appeals "to release decisions not for publication, notwithstanding that the decision clearly meets the criteria for publication of MCR 7.215(B) which requires publication when those criteria are met." This likely results in part from the ramifications of publication under the first out rule. The problem is exacerbated by the elimination of the right practitioners formerly had to request publication after-the-fact.

Similarly, the first out rule may contribute to the "increased use of summary proceedings and peremptory orders," which the Section believes are more frequently being applied to cases that are not "appropriate subjects for summary treatment."

Noting also that the conflict resolution procedure is "too rarely implemented by the Court of Appeals," the Section's letter concludes "that these are serious and timely issues which warrant further investigation and analysis by the [Supreme] Court." The Section offered to assist the Court.

Opinion Clarifies Retroactivity of Court of Appeals Decisions

A recent published opinion from the Michigan Court of Appeals clarifies the general rule on retroactivity of that court's decisions. The case, In re Hill, ___ Mich App ___; ___ NW2d ___ (Docket No. 195806, February 21, 1997) (1997 Mich App Lexis 63), involves a biological father's appeal from a probate court order terminating his parental rights in a stepparent adoption proceeding.

At issue was interpretation of a portion of the stepparent adoption statute. The panel held that "the general rule in Michigan is that appellate court decisions are to be given full retroactivity unless limited retroactivity is justified." Even if the case involves a question of first impression, "a decision which interprets a pre-existing statute should be given full retroactive effect."

Scott Bassett

Court of Appeals Forms Record Production Committee

On March 14, 1997, Court of Appeals Chief Judge Maura Corrigan convened a new Record Production Committee. Chief Judge Corrigan has asked the Committee to evaluate the most pressing issues of transcript and record production and submit a report by the April 1998 Bench/Bar Conference, offering specific recommendations to improve and streamline the process.

Court of Appeals Judge Michael Smolenski chairs the Record Production Committee. Also serving on the Committee by court appointment are other Court of Appeals Judges and staff, a circuit court judge, representatives of the circuit, recorders and federal courts, a county clerk, court reporters and civil and criminal appellate lawyers.

The Record Production Committee has placed several important issues on its agenda. These include implementing uniform (and complete) trial court record and docket entry production and reforming the "show cause" system of enforcing appellate transcript deadlines.

Judge Smolenski explains that the Committee's goal is not merely to serve the record production needs of the Court of Appeals. He hopes that the Committee's work will make everyone's job easier.

Donald M. Fulkerson

Michigan Court Practice Committee Completes Strict Enforcement Study

For the last year, the Court of Appeals has implemented a policy of strict and literal application of the court rules governing appellate procedure. After months of work, the Michigan Court Practice Committee has completed its preliminary study of the practical impact of the Court's strict enforcement policy. The Committee has submitted the results of that evaluation to the Court of Appeals for its consideration.

For this project, the Committee collected from practitioners many examples of specific application of the strict enforcement policy. The examples were often reflected in the "defect letters" sent out by the court. Defect letters advise that a document submitted fails in some way to comply with the court rules, and usually allow the practitioner one opportunity to correct the problem within a specific period of time.

The Committee evaluated each instance of strict enforcement to determine whether it helped improve the quality and efficiency of the appellate process, or tended to impede the process as an overly strict or literal reading of the court rules. Each instance was evaluated in light of the five "Guiding Principles" adopted by the Appellate practice Section Council, and detailed in the last edition of this newsletter (Vol 2, No 2 at 11).

The Committee concluded that many instances of strict enforcement did in fact promote quality and efficiency, such as requiring that briefs include each item specifically required by the court rules (statement regarding jurisdiction, standard of review, etc.). Other areas caused concern. One example was the policy of rejecting any response to an application or motion not filed before the date for which the hearing should have been noticed, regardless of whether the matter had even been submitted for decision. (See related article on page 17).

The Court of Appeals has expressed great interest in the Committee's project. The Court has promised to get back to the Committee and the Section after it has had an opportunity to consider the results of the study. The Section hopes that such a continuing dialogue between the bench and the bar will go a long way toward ensuring that form does not overwhelm substance, and toward improving the quality and efficiency of the appellate process.

Sue H. Zitterman

Quotable Quotes

Virtually all appellate courts in the United States, both Federal and State, impose a page limitation on appellate briefs. The briefs are required to be printed or typed, essentially "double spaced," although footnotes are permitted to be "single spaced." Some lawyers, quite improperly and unprofessionally, devise various methods in an effort to circumvent the well established page limitation rules of the appellate courts. One such situation surfaced in the United Stated Court of Appeals for the Second Circuit recently, which was dealt with by the Court in this memorable "quotable quote":

"Costs on appeal are routinely awarded to a successful party, 'unless otherwise ordered.' . . . Varda's [the successful party on appeal] brief in this case is a textbook example of where it should be otherwise ordered.

There is a fifty-page limit on briefs in the Court of Appeals. . . . Under Local Rule 32, 'footnotes may be single spaced,' while text must be double spaced. Varda's fifty page brief is packed with fifty-eight footnotes, many over a page long and containing crucial parts of Varda's arguments. Indeed, approximately 75% of Varda's statement of facts and argument appear in footnotes. If Varda had presented its facts and argument in canonical form, i.e., in the text, its brief would have been roughly seventy pages. Varda thus brazenly used 'textual footnotes to evade page limits.' . . .

Although the denial of costs may sting, Varda's counsel are fortunate that they practice law in the late Twentieth Century. Four hundred years ago, an English court imprisoned the pleader of a 120 page replication. Mylward v. Weldon (1596), first reported in 1 G. Spence, Equitable Jurisdiction of the Court of Chancery 375 n.h. (Philadelphia, Lea & Blanchard 1846). In addition, the court ordered a warden to:

Cut a hole in the midst of same engrossed Replication . . . and put the said [pleader's] head through the same hole, and so let the same Replication hang about his shoulder with the written side outward.

The warden was then to:

Lead the said [pleader] bareheaded and barefaced round about Westminster Hall, whilst the Courts are sitting, and . . . show him at the Bar of every of the three Courts within the Hall.

Varda's brief stirs nostalgia for the rigors of the common law."

Varda, Inc. v. Insurance Company of North America, 45 F3d 634 (CA 2, 1995).

This early example of strict enforcement was spotted by section member Hal O. Carroll in Lloyd's Aviation Law, Vol 14, No.4, February 15, 1995 at 6. It has been reprinted with the permission of Lloyds of London Press, Inc.

After the Toaster Exploded: A tongue-in cheek tribute to strict enforcement

On April 1, 1991, the toaster exploded in Sue's kitchen.

On March 31, 1994, Sue filed two suits against Toaster, Inc., seeking damages for personal injury (#001001-NO) and property damage (#001002-NO).

On May 1, 1994, I filed an answer on behalf of Toaster, Inc., denying that Toaster, Inc. had either manufactured or sold Sue's toaster, but asserting that if it did, the toaster was not defective and/or it was rendered defective by Sue and/or Sue had sustained no damage. I also filed a third-party complaint against The Toaster Company, claiming that it was the entity which had sold and/or manufactured Sue's toaster, and that, in any event, it owed my client indemnity, or possibly contribution, but definitely something was owed. Sue's claims against my client were consolidated.

On September 1, 1995, the circuit court denied my motion for summary disposition on behalf of Toaster, Inc., but granted summary disposition of the third-party complaint to The Toaster Company. As an appellate expert, I knew that neither of these orders was appealable by right, and that neither could be certified by the circuit court as final. They would have to wait.

On April 1, 1996, after a 3 day trial, the jury returned a verdict against Toaster, Inc., awarding Sue $25,000 in damages. A judgment was entered on May 1, 1996 and, on May 21, 1996, I filed a motion for new trial which was denied on July 1, 1996. On July 21, 1996, the circuit court awarded $10,000 in attorney fees to Sue as either mediation sanctions or offer of judgment sanctions—I never understood which—even though I had complained that the hourly rate was too high and the number of hours spent was too great.

I decided that it was time to appeal and, not wanting to wait the full 21 days provided by MCR 7.204 (A), I filed my claim of appeal 11 days later on August 1, 1996. I attached the circuit court docket entries, provided evidence of having ordered the transcripts of the pre-trial, trial, and post-trial hearings, and paid my $200 filing fee.

Except . . . on August 8, 1996, the Court of Appeals advised me that, even though there was one explosion, and one trial, and one judgment, and one claim of appeal, since the plaintiff had used up two circuit court docket numbers by filing two separate suits against Toaster, Inc., I had to pay 2 filing fees to the Court of Appeals. I sent in another $200.

I filed the docketing statement, noting that I was appealing from a final judgment, and indicating my intent to raise the propriety of the mediation and/or offer of judgment sanctions awarded to plaintiff.

I dutifully collected the various court reporter certificates and provided them to the court. I sat back and waited for the transcripts to be filed.

I was rolling.

Except . . . on October 1, 1996, I received an order from the Court of Appeals, dismissing my claim of appeal as untimely filed. According to the order, a claim of appeal must be filed within 21 days of the entry of the final order (or within 21 days of the denial of a timely filed post-judgment motion). I thought I did that. But, oh, no. Apparently the "final order" is the first order disposing of all of the claims of all of the parties, not the last order that does so. So, the final order in my case was the May 1, 1996, judgment and the appeal should have been filed within 21 days of the order denying my motion for new trial. In fact, the order granting mediation sanctions will never, standing alone, be the final order from which an appeal of right may be taken. Or so it seems.

I thought that I was early. It turns out that I was too late.

But the Court told me that I was free to file a delayed application for leave to appeal, and I did. I filed it on Tuesday, November 1, 1996, and paid the double filing fee for the two circuit court numbers without being asked. As for the notice of hearing, I knew that Plaintiff's attorney was out of the country and counsel for the third-party defendant called and asked if I would give him an extra week to file his answer since he was in the middle of a long trial. Since I surely would have stipulated to the additional 28 days under MCR 7.212 if my claim of appeal had been granted, and he would have been entitled to the extra week if I waited until Wednesday, November 2, 1996, to file my application, I noticed the application for hearing on Tuesday, November 28, 1996. I am nothing if not courteous.

I settled down to wait.

On November 28, 1996, answers to the application were filed on behalf of Sue and The Toaster Company. On December 21, 1996, the Court of Appeals rejected those answers, and returned the pleadings to counsel, because they were not filed by November 21, 1996, the date on which my application for leave to appeal should have been noticed for hearing pursuant to MCR 7.205 (B) (6). Oh, well.

We (at least the court and me) settled down to wait for the preparation of the transcripts since, pursuant to MCR 7.205 (B) (4), the application could not be considered without them.

Except . . . on December 31, 1996, I received notice that my application for leave to appeal was defective because:

I was, however, given 21 days to correct these defects, which I dutifully (if not cheerfully) did.

The transcripts were filed shortly thereafter and I, again, settled down to wait, confident that the court would grant my delayed application. We would then all be back where we started. Except . . . on April 1, 1997, I received the Court's Order, denying leave to appeal for lack of merit in the grounds presented.

On April 10, 1997, I filed an application for leave to appeal with the Michigan Supreme Court, enclosing a check for the double filing fee. My check was returned because the Supreme Court only wanted a single filing fee.

Rosalind Rochkind

Making the Oral Argument: View from the Inside Out—ABA Video

The American Bar Association Center for Continuing Legal Education and the ABA's Section of Litigation have combined to offer practitioners practical suggestions to enhance the impact of oral argument on those who will determine the outcome of your case.

In Making the Oral Argument, experienced appellate practitioners and judges present a hypothetical oral argument from preparation through post mortem. At every stage, advocates and judges are interviewed regarding their strategies, goals and techniques.

For example, to prepare for an oral argument, Maureen E. Mahoney, who has argued nearly a dozen cases before the US Supreme Court, reveals that she makes notes in her computer of all key facts in the records, outlines the issues using both parties' briefs, rereads all of the cases cited, makes a list of possible questions and answers, and finally, winnows all of the foregoing down to one or two sheets of paper with key words and phrases.

John G. Roberts, also a veteran advocate, adds that he jots down key points on note cards and then shuffles them to develop the ability to move quickly from point to point.

Following the featured argument, the panel of judges offers a critique of the presentations and answers such questions as what to do when a judge interrupts you while you are attempting to answer another judge's question. "Today it is not just hot benches, it is sizzling benches," advises Judge Deanell Reece Tacha of the Tenth US Circuit Court of Appeals. "You have to balance between getting your answers in and listening to the questions. We always tell you, theoretically, never interrupt a judge, but on the other hand, you may never get to say a word. A little feistiness doesn't hurt, but you have to be very, very careful not to go too far and be sure to be responsive."

Judge Gregory Kellam Scott of the Supreme Court of Colorado also suggests at least answering "yes" or "no" to a question, even if a complete answer is impossible.

Making the Oral Argument comes with a 280-page study guide that offers tips for drafting each section of a brief.

Brad Bole, Litigation News, January 1997, Vol 22 No 2. © 1997, American Bar Association. Reprinted with permission.

Better Left Unsaid

An appellant's brief must contain a statement "stating concisely and without repetition the questions involved in the appeal." Each separately numbered question is to be "followed by the trial court's answer to it or the statement that the trial court failed to answer it" with appellant's answer stated, when possible, as a "Yes" or "No." MCR 7.212(C)(5). It has become common for an appellant to also state the appellee's answer. When "questions presented" are argumentatively stated, the answers put forward as being those of the trial court or one's opposition often are not.

This appellant's "Questions Presented" earn an appellate equivalent of the:

SO WHEN DID YOU STOP BEATING YOUR WIFE AWARD

The trial court did not really answer this question, "Yes:"

"Where the premises risk at issue was neither open nor obvious, should the trial court have dismissed plaintiff's claim?"

The appellee did not answer this one, "No:"

"Since the trial court improperly usurped the role of the fact finder, should the grant of summary disposition be reversed?"

One prevailing party's stylish response to its opposition's motion for rehearing made multiple accusations and earns the:

ADDING INSULT TO INJURY AWARD

The Motion for Rehearing "dissimulated." "Red herring" numbers one through three were identified. A "straw man" had been created. There could be "little doubt" that the author of the motion was "an employee of the insurance industry." The motion for rehearing was "wordy and off-point" and "wrong-headed if not down right disingenuous." It was a "sleight of hand" that "should not go unrecognized." In fact, in filing the motion the moving party "hoped" that the Court would "get lost in the shell game of legal arguments created around the straw man."

Jim Gross has submitted this gem from Quick v. Western Michigan Transportation, 294 Mich 402, 410 (1940), reminding us that even the bench can, at times, suffer from fits of confused writing. Justice Wiest's dissenting opinion suggests Michigan should not mourn the death of the Deadman's Statute. It earns the:

DEAD MEN TELL NO TALES AWARD

Defendant's driver testified that the deceased was slumped over the steering wheel but raised his head and stared at him, and was not permitted to testify to what occurred after that on the ground it was equally within the knowledge of the deceased.

Noreen L. Slank

Bad Briefs Urgently Needed

We know that there are some perfectly awful examples of the written word. Ms. Slank is quickly exhausting her supply. This column will reach an untimely end without your help. Please consider supplying your nominations for Better Left Unsaid by sending them to Noreen Slank at Collins, Einhorn, Farrell & Ulanoff, P.C., 4000 Town Center, #909, Southfield, MI, 48075, (810) 355-2277 (fax).

Court of Appeals Establishes Internal Operating Procedures Task Force

Hopes to Publish IOPs by Spring 1988

The Michigan Court of Appeals has established a task force that is preparing internal operating procedures for publication. Chief Judge Corrigan appointed Judge Robert Young to chair the group which is comprised of practicing attorneys, judges, and members of the court staff. Judge Young's opening remarks are reprinted here in an edited version:

I would alike to thank the public members of the Task Force who have agreed to volunteer their time to this project.

The Appellate Bench/Bar Conference, which was my introduction to the court and the Appellate Bar, made clear that the court needed to examine its internal operating procedures and to publish them in order to ensure that the practicing bar was aware of the processing rules we employ in our court.

Both the court and the practicing bar have a common goal here. There is no gain in having secret procedures which affect how appellate papers are processed by the court. The court's goal is to reduce the number of nonconforming papers filed. The practicing bar's goal is to better understand how we review and process those papers in order to avoid delays and rejections. By iterating and publishing our procedures, we hope to serve these common goals.

The Chief has indicated her desire that all of our clerk internal operating procedures be published so that those who appear before us will know precisely what this court requires in processing your papers. It is further our desire that the published IOPs be cross-referenced to the appropriate rules.

This Task Force is not intended as a forum to pursue personal agendas or to promote particular changes in the appellate court rules. However, we are looking to the public members of this task force to provide input on IOPs that create difficulty for the practicing public so that our IOPs can be made as "user friendly" as possible, given the rules and operational imperatives we function under. If, in the course of our review, we discover problems created by the MCR, we will refer these to the appropriate bodies. Our recommendations will be presented to the Chief Judge for her consideration with the Chief Clerk and Bench, as appropriate.

To facilitate our effort, I have asked the internal court members of this Task Force to review our existing IOPs in order to define the operational goal associated with each procedure. This review will help us to ensure that we can justify what and why we are asking lawyers to do things in a particular way. This Task Force should not be compelled to consider IOPs which the clerk's office no longer feels are supportable.

Once we have determined the operational need for a particular procedure, we will need your assistance in determining whether the means we have chosen to vindicate the rule or operational need makes sense or whether there is a more sensible means to accomplish the stated need.

We have as one model, the IOPs published by the Sixth Circuit and other Circuits. The internal members of the Task Force have proposed that our review of IOPs proceed chronologically based upon the rules. This seems as sensible an approach as any, but if you have ideas on an alternate method, I would be interested in your suggestions.

It would be my proposal that, for each set of IOPs to be considered at a particular meeting, the internal members will provide the Task Force the following information:

(1) an outline of each IOP associated with the rules under consideration;

(2) the rule requirement (or operational justification) for each IOP; and, if appropriate,

(3) issues or questions to which the Task Force should pay particular attention.

This material will be mailed to each Task Force member at least two weeks in advance of any meeting to allow sufficient time for considered review. Although I hope that each member of the Task Force will be able to attend every meeting, I recognize that each of us is busy. It is my hope that, in providing materials well in advance of each meeting, members who will be unable to come will, nevertheless, submit written comments that can be considered by those who are in attendance.

Tom Rasdale has been designated our Task Force Reporter and will be responsible for keeping the formal record of our discussions.

Our Chief Judge has indicated that we may take up to two years to complete this review. With all due respect, I feel the need to complete this project in much shorter time and believe that this is both desirable and possible. In fact, I would like to be in a position to distribute - if in only draft form for public comment - a set of Court of Appeals IOPs by the next Appellate Bench/Bar conference in the Spring of 1998. At present, the members of the clerk's office estimate that (depending upon how much time is allocated to each meeting) approximately 5-10 meetings will be needed to accomplish our review. Consequently, my proposal to complete this project by April 1998 will require that we pack those meetings in a twelve month period.

Our first order of business, then, is to discuss our schedule and to determine whether we are willing to devote the time and energy necessary to deliver a draft product by the Bench/Bar Conference and to set the meeting lengths and dates.

Members of the task force include Timothy A. Baughman, Patrick Burkett, Linda Gargarino, Debra Gutierrez, Roz Rochkind, Mary Massaron Ross, Sandra Mengel, Debbie Messer, Tom Rasdale, and Judge Young and Judge Wahls. If you have comments or suggestions regarding areas in need of published operating procedures, please feel free to contact any of the practicing attorneys on the task force with your thoughts.

Strict Enforcement Tips

Timely Responses to Applications for Leave to Appeal

In the November 1996 Newsletter (Vol 2, No 2 at 1), we warned that the Michigan Court of Appeals now requires the timely filing of responses to applications for leave to appeal. Untimely responses will automatically be rejected by the clerk's office unless accompanied by the appropriate motion.

Determining what is a timely response can be tricky. Under MCR 7.205(C), a response must be filed "prior to the date of hearing." Appellees may not, however, rely on the hearing date selected by appellants in the notice of hearing. Despite the seemingly flexible wording of MCR 7.205 (B) (6) requiring appellants to file a notice of hearing for the first Tuesday at least 21 days after service (suggesting that the hearing date could be set further ahead), the court calculates the hearing date as the first Tuesday 21 days after the application has been served. This is the day you should use in determining your response due date.

MCR 7.205(C) requires that a response be filed before the date of the hearing, although the court's current internal policy is to accept responses filed on the hearing date. A word of caution from the Michigan Court Practice Committee: file your responses the day before to guarantee timeliness.

As a final note on applications, the court will not accept reply briefs unless submitted by motion. Replies filed without a motion will be returned.

Deborah Hebert

Recommended Reading for the Appellate Lawyer

This issue's book reviews discuss a book of essays debating constitutional and statutory interpretation and Judge Posner's newly released book on the crisis in federal courts.

A Matter of Interpretation Federal Courts and the Law, Justice Antonin Scalia, Princeton University Press, 1997

According to U.S. Supreme Court Justice Antonin Scalia, statutory and constitutional interpretation have been distorted by a common law mindset that resolves cases by creating a legal rule that the judges think will make for the best resolution as a matter of public policy. Justice Scalia urges renewed attention to the science of statutory and constitutional interpretation. He advocates fidelity to the text and warns against the "practical threat . . . that, under the guise or even self-delusion of pursuing unexpressed legislative intents, common-law judges will in fact pursue their own objectives and desires, extending their lawmaking proclivities from the common law to the statutory field."

Scalia calls his approach textualism. He is not, he announces, a strict constructionist. A good textualist is not a literalist or a nihilist. In Scalia's view, words have a limited range of meanings that should cabin permissible interpretations. Scalia argues that Llewellyn's attack on the canons of construction was overstated and should not "render the entire enterprise a fraud . . . unless the judge wishes to make it so."

Scalia urges against the use of legislative history which he believes is too readily manipulated by members of Congress. He points out that committee reports are so infrequently read that their authoratativeness must be questioned. Scalia disagrees with an evolutionary approach to constitutional interpretation because there is no guiding principle for deciding how it has evolved.

At least as interesting as Scalia's essay are the comments from noted constitutional scholars with differing views. Lawrence Tribe agrees with the primacy of the text but takes the position that the Constitution "speaks across the generations, projecting a set of messages undergoing episodic revisions that reverberate backward as well as forward in time." Tribe rejects originalism in favor of an approach that preserves the core of rights and freedoms recognized when the document was promulgated and ratified while allowing for "a periphery within which a more capacious elaboration of the rights and freedoms in question would remain possible . . . ."

Mary Ann Glendon reflects on the American history of ignoring or overlooking statutory interpretation as a matter for serious study. She contrasts this with civil-law countries such as Germany and France. Glendon concludes that code-based countries employ grammatical and structural methods of interpretation more frequently than do lawyers and judges in this country. Glendon believes that the more rigid forms of textualism stem from their proponents' desire to constrain judges and scholars who have "abandoned the notions of principled judging and objective scholarship . . . ."

Gordon S. Wood, a historian but not a lawyer, describes evolving notions of judicial review from early Colonial days through the nineteenth century. Gordon suggests that during the Revolution, "Americans sought to severely limit . . . judicial discretion." Gordon traces this desire to complaints of colonists against the "extraordinary degree of discretion exercised by royal judges." Gordon then briefly describes the evolution of this view to one in which "the courts became independent entities whose relationship with the sovereign people made them appear to have nearly equal authority with the legislatures in the creation of law."

Ronald A. Dworkin calls Scalia a semantic originalist. To Dworkin, the important question is "what a legislature intended to say in the laws it enacted, which judges applying those laws must answer, and the question of what the various legislators as individuals expected or hoped the consequences of those laws would be. . .." In Dworkin's view, "key constitutional provisions, as a matter of their original meaning, set out abstract principles rather than concrete or dated rules." Dworkin criticizes Scalia for failing to "exercise moral judgment in deciding what" these abstract provisions require.

One reviewer said that Justice Scalia "projects a sanguine humor through a robust prose enlivened by sly sallies against what he sees as gaps in logic of the opposing camp." This small book of essays is lively, informative, and important.

The Federal Courts Challenge and Reform

Judge Richard A. Posner, Harvard University Press, 1996

Judge Posner's empirical study of federal appellate court administration analyzes the unprecedented growth in caseloads and asks whether it has resulted in a sacrifice in quality. Filled with statistics, the book provides a comprehensive evaluation of the federal judiciary. While Posner raises serious concerns about the burgeoning caseload in federal appellate courts, he also carefully distinguishes the caseload from the workload. In Posner's view, "statistics on appellate caseloads are particularly misleading" because they are based on the number of appeals filed, not on the number that are fully briefed, argued, and decided. Posner points out that procedural terminations, summary decisions, and cases disposed of in unsigned unpublished opinions may be easier and less time-consuming.

Posner describes incremental and fundamental reform measures. He disagrees with efforts to curtail oral argument in most cases because he believes that its value is quite high to the judges; but he "has come to feel that few appeals warrant more than fifteen or twenty minutes per side. . . ." Posner suggests that the workload of federal courts of appeals does not permit improving and publishing all of the opinions. The choice is "between preparing but not publishing opinions in many cases and preparing no opinions in those cases." in other words, federal courts can choose to give their reasons in a cursory and less-well-prepared opinion or give no reasons in an order that disposes of the case. They lack time to write quality opinions in every case that must be decided. Posner argues that the trend toward establishing rules rather than standards as a basis for decision and the increasing adoption of deferential standards of review stems in part from the pressure of the growing caseloads.

Posner evaluates the effect of increasing filing fees, limiting or abolishing diversity jurisdiction, and the increased use of alternative dispute resolution, specialized courts, and administrative review the caseload crisis. Posner then turns his attention to more fundamental questions such as federal judicial restraint and the impact of activism on the role of federal courts in American life. Posner believes that problems with the writing of judicial opinions, the methodology of stare decisis, and a judge's institutional responsibilities "have been aggravated by the growth of the caseload . . . ."

Posner's thought-provoking proposals, are worth consideration. Anyone concerned about the judicial administration of appellate courts should read this book. While Posner focuses on federal courts, many of the same problems and issues exist in state appellate courts. His discussion is equally enlightening for those who are concerned about the caseload crisis in Michigan's courts.

Mary Massaron Ross

Section Bylaws Amendments Proposed

Several changes to the Section's bylaws have been proposed, including an increase in the size of the Council, increasing the number of council members required to constitute a quorum, and changing the way in which amendments to the bylaws are proposed. Several reasons exist for the proposed amendments.

The Appellate Practice Section has grown rapidly, and our work has expanded greatly in our first two years. Increasing the size of the Council will allow more people who have expressed interest to participate in Council activities. The proposal to increase the quorum is made in conjunction with the increase in the size of the Council.

The amendment to the manner in which amendments are adopted is proposed because the present method is somewhat cumbersome. The proposal would allow the Council to propose amendments to the membership, but would still require at least ten Council members to approve an amendment before it would be presented to the membership for approval or disapproval. The proposed amendment would retain the right of members who are not on the Council to petition for an amendment to the bylaws.

The following amendments to the Section's bylaws have been proposed:

Art 3, § 2:

Council. There shall be a Council of the Section consisting of the Chairperson, Chairperson Elect, Secretary and Treasurer, together with seventeen (17) at-large members to be elected. In addition, the Council shall include past Chairpersons of the Section, who shall remain voting members of the Council for a period of three (3) years after the end of their term of office as Chairperson.

The terms of office of the members of the Council shall be such that 1/3 of the elected members of the Council will have their terms end in each year.

At the first annual meeting after the effective date of the amendment of the bylaws to increase the at-large members of the Council to seventeen (17), the election of Council members shall be such that the total number of elected at-large members of the Council shall be seventeen (17). The terms of the newly elected members at this meeting shall be set so that a total of six at-large council members will have terms ending the first year, six ending the second year, and five ending the third year. To determine the terms of the newly elected members of the Council at this meeting, three-year terms shall go to the persons receiving the highest number of votes, two-year terms to the persons receiving the next highest number of votes, and one-year terms to the persons elected but receiving the lowest number of votes, computed in such a manner that the terms of the at-large Council members will expire as directed in this paragraph.

Art 5, § 6:

Quorum. Nine (9) voting members of the Council shall constitute a quorum on both regular and special meetings of the Council. Members may attend regular and special meetings in person or by telephonic or electronic means.

This provision shall be effective only if the proposed amendment to increase the number of at-large members of the Council to seventeen (17) is also approved.

Art 8, § 1

Amendments. Amendments to these Bylaws may be submitted as follows:

a) By a vote of the majority of the Council, but in no case less than ten (10), at a regular or special meeting prior to the annual meeting of the Section at which it is to be addressed. If the Council proposes such an amendment, the complete and accurate text of the amendment, and a statement of the basis of the proposal, shall be published in the Michigan Bar Journal or Section newsletter at least 30 days prior to the annual meeting of the Section at which the amendment is to be considered.

b) By a petition signed by at least ten (10) members of the Section. Such a petition shall be considered by the Council at a regular or special meeting prior to the annual meeting of the Section at which it is to be addressed. The Council shall prepare recommendations on the amendment, and those recommendations, together with the complete and accurate text of the amendment, shall be published in the Michigan Bar Journal or Section newsletter at least 30 days prior to the annual meeting of the Section at which the amendment is to be considered.

These proposed amendments will be considered and placed before the membership for a vote at the Appellate Practice Section's annual meeting on September 19, 1997.

Bench-Bar Conference Committee Meeting

The next meeting of the Bench-Bar Conference Committee will be on May 28, 1997, at 3:00 p.m., at the Southfield office of the Michigan Court of Appeals in the library. Section members and others interested in assisting in the planning of the 1998 Bench-Bar Conference should contact Mary Massaron Ross at (313) 983-4801.

Amendments Proposed to MCR 7.213 Fees being considered for participation in pre-argument conferences

The Michigan Supreme Court has proposed amendments to MCR 7.213 that would provide for a $125 fee for participation in the Court of Appeals pre-argument conferences in calendar cases. Under the current pre-argument conference procedure, the court may schedule a pre-argument conference between the parties and either a judge or an attorney the court has selected to discuss "the possibility of settlement, the simplification of the issues, and any other matters which the moderator determines may aid int he handling of or the disposition of the appeal." The proposed amendment would also allow a retired judge to serve as the moderator.

In addition, the proposed amendment sets a $125 fee per party for participation in the conference, and makes participation in the conference mandatory. A party who objects to participation may, through a motion in the Court of Appeals and for good cause, apply to be exempted from the procedure.

If the parties all agree, the parties may select their own moderator for the conference. The moderator may charge a fee which will be shared equally among the parties. The parties may agree to a different apportioning of the special moderator's fee.

Comments on the proposed amendment may be sent to the Clerk of the Michigan Supreme Court within 60 days of the proposal's publication in the Michigan Bar Journal. If members choose to comment on this proposed amendment, they should refer to Supreme Court file No. 97-06.