Volume 2, Number 1 November 1996

Court of Appeals Begins Strictly Enforcing Filing Dates for Answers to Motions and Applications for Leave to Appeal

A Notice from Chief Clerk Ella Williams

At the Judicial Conference in August, the judges of the Court of Appeals unanimously voted to enforce all court rules including the timeliness requirements for filing answers to motions and applications for leave to appeal. Consequently, all answers must be timely filed. If an answer is not timely filed, it will be returned. To be sure that your answer is timely filed, the answer must be in the clerk's office on the date the matter is noticed for hearing. It is not sufficient to mail it on that date; it must be filed on or before the date. If the answer is returned, counsel may refile the answer accompanied by a motion to accept the late answer. If the answer cannot be timely filed, counsel may file the late answer together with a motion to accept the late answer. The late answer and motion will be forwarded to the panel for decision, provided no decision has been made on the motion or application. However, if the motion or application has already been decided, the answer and motion to accept the late answer will be returned to the filing party. In that instance, counsel will need to file a motion for rehearing.

Appellate Practice Section's Sixth Circuit Practice

Program a Success
On October 29, 1996, the Appellate Practice Section presented its program "Making Your Case in the Sixth Circuit" at Wayne State University before approximately 250 law students and practitioners. Local specialists in appellate practice presented mock oral arguments for a civil case (Americans With Disabilities Act) and a criminal case (protective search) before judges from the Sixth Circuit and the Eastern District of Michigan.

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.

ELEVENTH CIRCUIT

Options Available to Class Members Who Have Been Dismissed From Class Action Suit
Members of class action suits who have been dismissed from the suit now have several options they may use to protect their right to litigate their claims, according to the Eleventh Circuit. Thirty-two plaintiffs were dismissed from an Age Discrimination in Employment class action suit. More than ninety days later these plaintiffs, and others, filed another ADEA action. Twenty-nine of these plaintiffs were dismissed from the second action because they had failed to file their individual suits within ninety days of receiving notice of their dismissal from the first class action. The court of appeals reversed. It recognized three options available to those dismissed from class actions. Those claimants "may: (1) within the remaining time before the statute of limitations runs, file an individual lawsuit thereby rendering an appeal of their dismissal from the class action moot; or (2) await final judgment in the class action, appeal from that final judgment, and if not successful file an individual lawsuit within the time that remained at the time of their dismissal; or (3) before the running of the statute of limitations, move for an interlocutory appeal." Armstrong v. Martin Marietta Corp., 93 F3d 1505 (CA 11, 1996).

MICHIGAN SUPREME COURT

Clear Error Defined
Looking for a good definition of "clear error?" The Michigan Supreme Court this summer approved of the following statement on the clearly erroneous standard. "To be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week old, unrefrigerated dead fish." People v. Cheatham, 453 Mich 1; 551 NW2d 355 (1996), quoting Parts & Electric Motors, Inc v. Sterling Electric, Inc, 866 F2d 228, 233 (CA 7, 1988).

Standard of Review of Preserved Non-Constitutional Error
The Michigan Supreme Court has partially answered the long-awaited question of what "harmless error" standard to apply to non-constitutional error. The Court held that the "harmless beyond a reasonable doubt" test, used for preserved constitutional error, is not the proper standard to apply to preserved non-constitutional error. The preserved non-constitutional error must be reviewed for its effect on the finder of fact, and reversal is warranted only on a showing of prejudice. The Supreme Court left open for another day the question of the level of confidence a reviewing court must have that a preserved non-constitutional error was harmless. People v. Mateo, 453 Mich 203; 551 NW2d 891 (1996).

Review of Constitutionality of a Confiscatory Ordinance—Ripeness
To challenge the constitutionality of a zoning ordinance as confiscatory in a particular application, finality is required. The initial decision maker must have arrived at a definitive position on the issue which inflicts an actual, concrete injury. Further, the landowner must first pursue an inverse condemnation claim. In this case, the plaintiff purchased undeveloped land that was zoned for single family residential use. The property was adjacent to an operating gravel pit, an industrial zone, and a mobile home zone. The plaintiff asked the defendant city's planning board to rezone the property to a mobile home zone, but the board recommended, and the city council adopted, a denial of the request. The plaintiff then sued, asserting that because of the adjacent uses and poor drainage of the property there was no economically viable use for the property absent the rezoning. However, the plaintiff had never sought a use variance from the zoning board of appeals. The city council's decision was not final absent a denial of a variance. Thus, the plaintiff's claim was not appropriate for adjudication. Paragon Properties, Co v Novi, 452 Mich 568; 550 NW2d 772 (1996).

MICHIGAN COURT OF APPEALS

Standing to Appeal
An appellate court need not review an issue in which the party alleging error lacks standing. "Standing" denotes the existence of a party's interest in the outcome of litigation which will ensure sincere and vigorous advocacy. But, evidence that a party will engage in full and vigorous advocacy is alone insufficient to establish standing. To have standing, a party must have a legally protected interest which is in jeopardy of being adversely affected. Standing requires a demonstration that the party's substantial interest will be detrimentally affected in a manner different from the citizenry at large. The issue of standing applies in criminal as well as civil proceedings. People v. Yeoman (William), 218 Mich App 406; ___ NW2d ___ (1996).

Court Remand to Agency for Decision
When a court remits a matter to an administrative agency, the court retains jurisdiction and reviews the case de novo. Friends of Crystal River v Kiras Properties, 218 Mich App 457; ___ NW2d ___ (1996).

Remand to Trial Court—Scope of Court's Authority
When a matter is remanded to the trial court, the court has the authority to take action consistent with the appellate court's opinion and order. However, the trial court cannot do on remand what the higher court could not do on appeal; that is, it may not consider issues not considered by the appellate court during a prior appeal if the issues could have been raised in the prior appeal. In this case, the trial court awarded the plaintiffs damages plus interest from the date of the filing of the complaint. The plaintiffs appealed the amount of the award. The appellate court increased the award of damages plus interest. On remand, the trial court held that the statutory interest on the increase in damages would not accrue until the date of the appellate opinion, rather than from the date of the complaint. The defendant had not appealed the initial designation of interest from the time of the filing of the complaint, and thus the case was res judicata as to that issue. Therefore, the trial court improperly abrogated the award of interest from the date of the filing of the complaint until the date of the appellate decision. Hadfield v. Oakland Co Drain Comm'r, 218 Mich App 351; ___ NW2d ___ (1996).

Aggrieved Parties/Interested Persons Trust Litigation Under the Revised Probate Code
The Court of Appeals has jurisdiction over an appeal by right filed by an aggrieved party from a final judgment or order of a court or tribunal from which an appeal by right to the Court of Appeals has been established by law. An "aggrieved party" is one whose legal right is invaded by an action, or whose pecuniary interest is directly or adversely affected by a judgment or order. It is a party who has an interest in the subject matter of the litigation. If a person has not been represented at trial, and the judgment of the lower court directly affects his interests, he is an aggrieved party. Under the Revised Probate Code, a law firm that represents the interests of beneficiaries of a trust is not an heir, a devisee, a distributee or a beneficiary. Nor may a lawyer acquire a proprietary interest in a cause of action or the subject matter of litigation. In this case, the appellant law firm represented the interests of two beneficiaries of a trust. The trial court awarded payment of half of the resultant legal fees from the trust; the remaining fees were the obligation of the person who had hired the firm. The firm appealed the order regarding payment of the fees. However, the firm was not an "aggrieved party" and lacked standing to appeal the order. The Court of Appeals also has jurisdiction over appeals of right from final orders of the probate court which affect the rights or interests of any "interested person" in an estate or trust. In the absence of a statute to the contrary, each party in a lawsuit is responsible for paying his own attorney fees. In this case, the person who hired the appellant law firm must pay the fees. Thus, the firm is not adversely affected by an order permitting payment of half of the fees from the trust, and the firm lacks standing to appeal the order. In re Freeman Estate, 218 Mich App 151; 553 NW2d 664 (1996).

Criminal Defendants Timeliness of Motion for New Trial

If a claim of appeal has been filed, a post-judgment motion filed in the trial court is only timely if filed in accordance with certain court rules. A criminal defendant has only 28 days after the commencement of the time for the filing of his appellate brief to file a motion for a new trial. In this case, the defendant did not file his motion for a new trial until more than six weeks after the commencement of the time for filing his appellate brief. The trial court properly concluded that the defendant's motion was untimely. The defendant also filed an untimely motion to remand. However, because the defendant did not learn of the ground for new trial—a recanting witness—until the day before the commencement of the time for filing his appellate brief, remand to the trial court to consider the motion for new trial is warranted under the circumstances. People v. LaPlaunt (Corey), 217 Mich App 733; 552 NW2d 692 (1996).

Harmless Error
In another recent harmless error case, the Court of Appeals held that the trial court's refusal to permit a defendant to testify after his counsel had rested but before final arguments began was error. And, because it infringed on the defendant's right to testify, it was constitutional error. The Court found, however, on the facts of this case, that the error was harmless. The Court held that this was not a structural defect, such as depriving a defendant of the right to counsel, which could never be harmless. The Court did state, however, that this was the "relatively rare case" where such an error could confidently be held harmless beyond a reasonable doubt. People v. Solomon, ___ Mich App ___ (Docket No. 181158, decided 10/15/96).

Law of the Case in Criminal Appeals
The "law of the case" doctrine is usually applied in civil cases, but it does occasionally arise in criminal law as well. The Court of Appeals recently applied the doctrine in refusing to consider a defendant's argument, in a perjury prosecution, that testimony from his deposition in a probate matter was improperly admitted in his criminal trial, since the Court had, in an earlier appeal, ruled that the defendant had waived this issue. People v. Kozyra, ___ Mich App ___ (Docket No. 172275, decided 10/11/96).

Standard of Review— Prosecutor's Charging Decision
The prosecutor has the power to decide under which of several applicable statutes a defendant should be charged. Typically, this is spoken of as a matter within the prosecutor's discretion. Does this mean that review of a prosecutor's charging decision is for an abuse of discretion? The Court of Appeals recently said no. The discretion of the prosecutor in this instance is abused only if the choice of charges is made for reasons that are unconstitutional, illegal, or ultra vires. Courts thus review a charging decision under an "abuse of power" standard, questioning only whether the prosecutor has acted in contravention of the Constitution or the law. People v. Barksdale, ___ Mich App ___ (Docket No. 187328, decided 10/15/96).

Circuit Court May Not Add Mediation Sanctions to Judgment on Appeal
In a case in which the Court of Appeals granted leave to appeal from a summary disposition order that dismissed the plaintiff's complaint before the lower court signed and entered an order amending the judgment to add mediation sanctions, the portion of the modified order imposing mediation sanctions was vacated and the case remanded for reconsideration of the sanctions issue. In the appeal by leave, the dismissal of the plaintiff's complaint was affirmed. The Plaintiff tried to raise several new theories for the first time on appeal, with the usual result. In the appeal of right, the plaintiff had better luck with the argument that the grant of leave divested the circuit court of jurisdiction to modify its order under MCR 7.208. The opinion does not reveal whether the first appeal was by leave because the order dismissing the case was not a final order or because the appeal was late. Nor is it clear whether a separate mediation sanctions order would have run afoul of MCL 7.208, or even have been appealable as a final order under MCR 7.202(8). In vacating and remanding, the panel expressed reservations about the sanctions order on the merits. Muscio v Olde Colony Builders, Inc, (unpublished decision of the Michigan Court of Appeals, Docket No. 171314, Sept. 13, 1996) (MLW No. 26212).

Appellate Practice Section 1996-1997

Officers

Chair: Mary Massaron Ross

Chair-Elect: Joseph H. Firestone

Treasurer: Timothy K. McMorrow

Secretary: Rosemary A. Gordon

Previous Past Chair: Brian G. Shannon

Council Term Expires 1999

Patrick J. Burkett

Rosalind H. Rochkind

Evelyn C. Tombers

Council Term Expires 1998

Donald M. Fulkerson

Frederick J. Griffith

Deborah A. Hebert

Patrick L. Rose

Council Term Expires 1997

Scott G. Bassett

Gary L. Field

Noreen L. Slank

F. Martin Tieber

Committees

Michigan Court Practice: Angela J. Nicita, Chair

Federal Court Practice: Kathleen Moro Nesi, Chair

Court Liason/Rules Comment: Patrick J. Burkett, Chair

Publications: Marcia L. Howe, Chair

Economics of Appellate Practice: Noreen L. Slank, Chair

Bench Bar Conference Liason: Mary Massaron Ross, Co-Chair

APS Newsletter: Evelyn C. Tombers, Editor

A Word From the Chair

Justice Holmes spoke eloquently of the law as a calling in which "a man may live greatly ¼ ." To Holmes, the law was a "magic mirror" in which "we see reflected, not only our own lives, but the lives of all men that have been." Holmes saw the business of lawyers as "thinkers" to "show the rational connection between your fact and the frame of the universe." In his view, the struggle to do so amounted to a heroic effort. As we go about our routine tasks, reviewing a record, researching an issue, writing a brief, arguing a case, it is easy to lose track of the "heroic" aspects of what we do. As lawyers we are privileged to serve in what has been and can be a noble calling.

As appellate lawyers, we are offered a unique opportunity to shape the development of the law, in the arguments we make and the issues that we raise on behalf of our clients. Because the volume of cases before state and federal appellate courts is overwhelming, it is incumbent upon us to act with a special care as appellate advocates and to keep in mind these lofty ideals. Judge Ruggero Aldisert emphasized the importance of competent advocates to a proper development of the law. The American system of justice relies upon "pragmatic, strident and vigorous advocate lawyers" to crystallize the issues and provide the courts with a clear and cogent picture of the conflicting principles that may be implicated in the issues raised by a particular appeal. Absent effective advocacy, Judge Aldisert predicted that decisions would come to be made by "judges ensconced in ivory towers" working with "professional law clerk acolytes."

At our fall program, Justices Mallett, Boyle and Brickley echoed this concern and urged advocates to provide the court with information about the "real-world implications of the case." Critics of appellate courts warn that a system of bureaucratic justice may replace the rule of law that has traditionally been developed by forceful advocacy and thoughtful judicial decision making. If advocates fail in their responsibilities, the court is left to decide cases without the necessary information. The volume of cases before both state and federal appellate courts, particularly our Court of Appeals, makes it difficult for judges to do the advocates' work. If the lawyers fail to effectively argue the case, overlook significant authority, or ignore relevant record facts, the court may miss these points.

In an unpublished opinion, the outcome may simply be a bad result, one inconsistent with prevailing law or wrong on the facts. In a published opinion, the law may develop in a direction that fails to take into account creative arguments and theories that would have led the court in an entirely different direction. An opinion may conflict with prior published opinions or lead to confusion where significant alternative routes to decision have not been discussed or explored. The predictive power of the law, when this occurs with any regularity, is hampered. The court's ability to resolve troubling and previously unsettled questions is impeded.

The court's credibility is weakened. As appellate advocates we bear a responsibility to provide as effective, competent, and forceful an argument as we can muster on those cases we pursue. We also bear a responsibility to encourage our clients to forgo pursuit of those cases that are so weak we can not in good conscience provide an argument. We have the right to expect careful and thoughtful decisions from the courts before whom we appear but we must do our part to ensure that this is possible.

The Section's mission is to help practitioners improve their advocacy skills and to assist them in the efficient and effective operation of an appellate practice. The Section is also dedicated to fostering the productive operation of the appellate courts and advancing the administration of justice. While the prose that describes our mission is more prosaic than Holmes' language, in a real sense, the Section's goal is to help its members serve as effective appellate advocates within a system of justice that can truthfully be characterized as excellent. As we begin the second year of the Appellate Practice Section's existence, it seems appropriate to consider our activities and to ask if we are reaching these goals. In its first year, the Section can point to an impressive set of accomplishments that has moved us toward these goals in significant ways.

The Section has provided many new opportunities for conversation between appellate lawyers, judges, and court staff. The newsletter has provided a forum for the discussion of issues of interest, appellate rules, policies and procedures in the clerk's office, and questions of jurisprudence. The Michigan Practice Committee is studying the impact of the Court of Appeals strict enforcement policy, an effort which we hope will lead to a report that will provide the Court with useful information about the effect of its policies on practitioners. The Court Rules/Liason Committee has studied and commented on numerous proposed changes to state and federal appellate rules. In its first year, the Section has established the framework for continuing discussions between the bench, bar, and court staff about the administration of justice in the appellate courts.

Section programs have been more successful than we had hoped, starting with the "Nitty Gritty of Appellate Fee Agreements" and culminating in the annual meeting program, a standing room only session in which three members of Michigan's Supreme Court shared their insights on applications for leave to appeal to the Michigan Supreme Court. Chief Justice Brickley and Justices Boyle and Mallett gave a candid and thought-provoking discussion of the factors that go into decisions to grant or deny leave to appeal. Chief Clerk Corbin Davis and Chief Commissioner Al Lynch also spoke on the role of the clerk's office and commissioner's office in the process. Recently, the Federal Practice Committee sponsored a program in conjunction with Wayne State University that included two mock oral arguments before Sixth Circuit Judges Suhrheinrich, Moore, Ryan, Nelson, and Guy and federal district court Chief Judge Cook. This year, we will build on these initial successes. We have already begun talking about the educational programs we should put on this year. We will continue speaking with the Michigan Supreme Court, Court of Appeals, and Sixth Circuit Court of Appeals judges and court staff about the policies, procedures, and rules that help to foster effective advocacy and quality judicial decision making. We have sought to provide a strong voice for practitioners so that judges and court staff hear a frank appraisal of the practical effect of their decisions on the practicing bar's ability to provide effective advocacy. We hope that you will get involved and work with us toward these important goals.

Mary Massaron Ross

Shannon's Soapbox

Member Terry Flanagan, the Deputy Administrator of the Michigan Appellate Assigned Counsel System, was prompted by my last soapbox in August to tell me about a group of people thus far denied Supreme Court access because the Court treats the 56-day filing limit in 7.302(C)(3) as though it were jurisdictional, no matter how compelling the extenuating circumstances may be.

In August I wrote about a lawyer whose Court of Appeals rehearing motion was returned to her more than 56 days after the original decision because, it turned out, she had filed one day late. Her subsequent 7.216(B) motion to overlook the tardiness was also returned to her. Fortunately, another party had filed a timely rehearing motion and she was later able to apply for leave to appeal in the Supreme Court.

Not so fortunate were more than 20 clients of a former MAACS roster attorney whose license to practice law was revoked on March 16, 1996. Her neglect included failing to tell clients when the Court of Appeals decided their cases. She is by no means the only lawyer ever to make like an ostrich in the vain hope that bad news would go away if ignored, but she may have set a record for sheer volume.

Terry looked into the plight of these uninformed clients and discovered that occasionally the Supreme Court, when satisfied that an attorney had not received a Court of Appeals opinion within 56 days, grants relief while maintaining the appearance of strict enforcement by directing the Court of Appeals to reissue its opinion, thus restarting the clock. In one such case, Keen v. Thumb Correctional Facility Warden, 444 Mich 871 (1993), Justice Levin points out (as he has for years) that "[t]his circumlocution is stultifying" and that the real solution is to stop treating the 56-day rule as jurisdictional.

Terry explained the situation to the Court of Appeals last year, but was told that the Court deemed itself without authority to reissue opinions that were properly sent to counsel. Ms. Ostrich's misconduct, documented in a series of discipline orders leading up to her license revocation, has barred the door to the Supreme Court to clients who (in this, at least) are without fault.

Justice Levin, in Keen and earlier opinions, makes a good case that the high court should not insulate itself from this kind of messy reality by simply directing its clerk to return all papers filed after the 56-day deadline. This practice, too, has a certain ostrich-like quality.

The MAACS supervising entity, the Appellate Defender Commission, may ask the Supreme Court to amend 7.302(C)(3). But it seems the problem could be solved as arbitrarily as it was created-by simply acknowledging that the 56-day rule is not jurisdictional. The last official word was an administrative order in November 1981 (AO 1981-4, no longer in your rulebook) announcing that the then six-month time limit for delayed applications would be strictly enforced. This much less draconian rule (most out-of-time applications are not nearly so late) is scant support for a drop-dead 56-day rule.

The Court gets around the rule now when it really wants to, using the reissuance dodge. Why not just admit that the rule isn't jurisdictional and permit 7.316(B) motions to allow later applications for good cause shown? The probable answer is a "floodgates" argument. Why should a Court already swimming in paper invite who knows how many motions raising an unresolved factual claim of nonreceipt of an opinion? The answer is: Because it happens. If I were a Supreme Court Commissioner reviewing a stack of these motions, I think I could quickly separate the wheat from the chaff, casting aside most of them as soon as I saw the evidence of nonreceipt was only the movant's say-so. But every so often I'd find a case with hard evidence like an order of discipline to support the claim. If an evidentiary hearing is appropriate, the Supreme Court already feels free to order one (Keen, 444 Mich at 872 n.2). Justice was done in Keen because a prosecutor was creative enough to seek superintending control. A simple MCR 7.316(B) motion would be more direct and provide the same measure of fairness to more citizens.

Brian G. Shannon

Unwritten Rules: The "Attorney of Record"

The clerk's office of the Court of Appeals has experienced a problem with attorneys who have appeared on cases in the Court of Appeals and then leave their firms for another practice. It is the court's policy to consider the attorney who signs the appellate brief to be the attorney of record for that party. When an attorney leaves a firm, he or she should notify the clerk's office immediately of the change of address, as well as advising the office which files are beingtaken with that attorney to the new practice. If a file is retained by the old firm, the clerk's office must be advised of the name of the attorney at the firm who has been assigned to handle the appeal. Compliance with these guidelines will help to assure that the correct attorneys continue to receive communications from he court in a timely fashion.

Angela J. Nicita

Better Left Unsaid

by Noreen L. Slank

Counsel for the plaintiff in a personal injury action used an extra-special, super-duper, secret weapon to oppose the defense motion for summary disposition: The Insult. He receives:

The Winning by Vilification Award
Defendants' motion for summary disposition "suffer[ed] from a lack of objectivity, compassion and understanding." Their treatment of the facts was "nothing more than self-serving biased opinion." In fact, defendants sought relief based only on "their biased, self-serving position, identities and specious attitude." In sum: "The defendants' pedantic attitude patently explains why we are before this Court for this vexatious motion."

A little Latin always helps when you are invoking insult in service of your client's cause. Consider this example. "The Court should rule in favor of the plaintiffs in this matter and the law punishes falsehood, lex bunt madacium." Hands down, plaintiff wins. Judges are always so impressed when legal argument advances by character assassination. When one is on the receiving end of such an effort, it is a special source of comfort to find that the brief is also burdened by unusual spasms of poor grammar. Once the insults died down, plaintiff got to the point and now receives:

The What Language Was This

Translated From Award
"The defendants in this matter knew or should have known of whom this unknown assailant is." Switch gears now to honor another particularly memorable exchange between brief writers who just couldn't get it exactly right:

The Spell Cheque A Ward
Plaintiff consistently referred to her "intentional inflection" tort claim. Defendant responded in kind, relying on the "statue of frauds," the "statue of limitations" and that well-known claim preclusion doctrine "estoppel and res adjudicate."

A pellet attorneys no better than to rely on come pewter spelling aides.

Michigan Appellate Bench Bar Conference Foundation Begins Plans for 1998 Conference

Plans are already underway for the next appellate bench bar conference. At a well-attended meeting hosted by the Appellate Practice Section, the Michigan Bench Bar Conference Foundation's planning committee met on September 20, 1996, in conjunction with the State Bar's annual meeting. The group made several decisions about the conference which is scheduled for April 16-17, 1998. Entitled "An Exhortation to Quality," the conference theme will be quality in appellate advocacy, judicial administration, and decision making. The format for the next conference, like that of the initial conference, will involve workshops with a focus on dialogue and discussion rather than lectures. Participants will be able to select from a number of workshops designed to permit court staff, bench, and bar to discuss issues of mutual interest and concern. Planning committees are now being formed to discuss whether there is an interest in various topics, and if so, the appropriate format and potential topics for discussion. Committees established thus far include:

Court of Appeals policies; Court of Appeals clerk's office and internal operating procedures; Court of Appeals central research staff; General rule making authority, process, and appellate rules; Civil applications for leave to appeal and motions; Settlement procedures; Criminal applications for leave to appeal and motions;

Record production; Family law; Technology; and Legislative and executive involvement in the appellate courts.

These committees will be meeting over the next several months and reporting back to the planning group in January, 1997. If you would like to become involved, please contact Co-Chairs Jim Neuhard (313) 256-9833 or Mary Massaron Ross (313) 983-4801.

Election Results

November 5, 1996, proved to be a good day for all of the incumbent Court of Appeals judges and Michigan Supreme Court Chief Justice running for election as well as for one Court of Appeals Judge who will soon be serving on Michigan's highest court. Chief Justice James H. Brickley was re-elected to the Michigan Supreme Court. And, come January, Court of Appeals Judge Marilyn Kelly will be joining Chief Justice Brickley and the other Supreme Court Justices as Justice Kelly. All of the running incumbents in the Court of Appeals were reelected in this year's elections: From the 1st District—Judge Harold Hood, Judge Maureen P. Reilly and Judge Robert P. Young, Jr.; from the 2nd District—Judge Mark J. Cavanagh, Judge E. Thomas Fitzgerald and Judge Henry W. Saad; from the 4th District—Judge Donald E. Holbrook, Jr., Judge Stephen J. Markman, Judge Richard Allen Griffin and Judge Barbara B. MacKenzie. The Appellate Practice Section extends its congratulations to all of the judges who were elected and re-elected.

Current Work of the Court Liason/Rules Committee

Proposed Amendments to the Michigan Court Rules and Administrative Orders
The function of the Court Liason/Rules Committee is the formulation of proposed Section positions on pending court rule amendments. The committee makes recommendations to the Appellate Practice Section Council, which then decides whether to take action by way of comment to the Michigan Supreme Court and others responsible for rule amendments on pending rule amendment proposals. There are several proposed rules changes that have a direct effect on appellate practice currently under consideration by the committee and the Council. Administrative Order 1994-4

An amendment to Administrative Order 1994-4 has been proposed. The order currently provides that the first published decision by the Court of Appeals governs later decisions in the absence of consideration by a special panel of seven judges of the Court of Appeals or by the Supreme Court. The proposed amendment would provide that the special panel of the Court of Appeals that considers the matter, in the event of conflict, may decline oral argument prior to its resolution of "conflict decisions," and may do so by "published opinion or order. Some members of the committee, and of the appellate bar in general, have expressed concern that oral argument should be granted especially in conflict cases and that they should be resolved by more than merely an order. MCR 1.201(E) Effective Date of Amendments The Council and the committee are also reviewing a proposed amendment to MCR 1.201(E), which would provide that all rule amendments and additions become effective on the following March 1, unless the Supreme Court sets a later date. The reaction to this proposal thus far has been favorable. Practitioners recognize that the intermittent adoption of amendments throughout the year has caused some confusion and problems with filings in the Court of Appeals. MCR 7.204(H) Docketing Statements

Two proposed amendments to MCR 7.204(H) are under review. Under one proposed amendment, the Court would require the appellant to file two copies of the docketing statement with the Court of Appeals. Under the other proposed amendment, the appellant would have to identify any person, corporation, or other entity, not a party to the appeal, that has a substantial financial interest in the litigation. MCR 7.205(E) Additional Requirements

With Regard to Emergency Matters The proposed amendment to MCR 7.205(E) would require additional action by counsel in emergency matters. First, the appellant would be required to alert the Clerk of the Court of Appeals, by prominent notice on the cover sheet or first page of an application for leave to appeal, that action is required or consequences will occur within 56 days of the date the application is filed. The appellant would also be required to include the date "by which action is required" from the Court of Appeals. Second, in a resurrection of a previous proposal that received a negative reaction from the Appellate Practice Section Council, an appellant who requests a hearing on an application in less than 21 days must file the application within 7 days "of the date of the order appealed from or within 7 days after the appellant discovered or should have discovered the need for an emergency application."

MCR 7.212(H) Amicus Curiae Briefs Finally, under the proposed amendment to MCR 7.212(H), amicus curiae briefs could be filed only on a motion "filed no later than 21 days after the appellee's brief is filed." The amicus brief could not "raise issues not raised by the parties." Your comments on these proposed amendments may be sent either directly to the Michigan Supreme Court to the Chairperson of the Court Liason/Rules Committee: Patrick Burkett 2000 Town Center, Suite 900 Southfield, MI 48075 (810) 746-4062

Recommended Reading for the Appellate Lawyer

by Mary Massaron Ross

This issue's book reviews include books on jurisprudential matters in the areas of tort law, corporate law, and criminal law. They serve as a reminder that jurisprudence is not limited to issues of constitutional significance but undergirds judicial decisions in every area of law.

The Economic Structure of Corporate Law Frank H. Easterbrook Daniel R. Fischel Harvard University Press 1991

One writer characterized the law and economics movement as "the most powerful current in American law teaching today." Discussed by such well-known figures as Judge Richard A. Posner, William M. Landes, and others, the movement can be traced to
Ronald Coase, an economist and the director of the University of Chicago Law School's law and economics program. In this theoretical analysis of corporate law, Judge Easterbrook and Professor Fischel provide a well-written, provocative, and important book applying Coase's analysis to corporate law. Coase's thesis can be boiled down to a simple notion: if transaction costs are low, the law's assignment of rights and liabilities will not significantly affect the allocation of societal resources. Intelligent decisions on public intervention into decision making should be based on empirical knowledge about the transaction costs involved and the market result absent intervention. Easterbrook and Fischel take this theorem and apply it to corporate law to arrive at a paradigm for understanding corporate law. The authors "treat corporate law as a standard-form contract, supplying terms most venturers would have chosen but yielding to explicit terms in all but a few instances." They contend that corporate law should contain those terms that the parties would have negotiated for except that the transaction or agency costs were too high. In their view, unless prices are consistently wrong, the market will provide appropriate incentives to corporate managers to act in the investors' best interest in all but limited instances. Corporate law practitioners and judges faced with a corporate law issue will benefit from this readable analysis of corporate law. The authors discuss principles involved in limited liability, corporate voting, fiduciary duty and the business judgment rule, the appraisal remedy, and a host of other significant issues of corporate law. Just out in paperback, it is well worth reading.

The Hidden Holmes: His Theory of Torts in History David Rosenberg Harvard University Press 1995

In a scholarly though brief discussion, Professor Rosenberg revisits Justice Holmes' classic writings to arrive at a fresh perspective on his understanding of tort liability. Disagreeing with much prior academic writing that has interpreted Holmes, Professor Rosenberg criticizes legal scholarship for superimposing mistaken constructs onto the facts so that the theories become more real than the evidentiary details that should provide their underpinnings. Professor Rosenberg sets forth the context for Holmes' theory of torts by describing Holmes' break with the formalism and analytical jurisprudence of his time. Holmes' jurisprudence is based on an appreciation of the normative and interpretive policy choices made by courts, an emphasis on empirical science, and an avoidance of conceptualism and a priori absolutes. Holmes urges courts to candidly discuss the policy considerations that give rise to decisions. Holmes sought to create a general theory of torts that allows for "atop-to-bottom policy review to evaluate the rational fit of rules as means to given policy ends¼ ." This would "get the dragon out of his cave on the plain and in the daylight, [so] you can count his teeth and claws, and see just what is his strength." In arriving at a general theory of tort law, Holmes tried to uncover the "common ground for all liability in tort." Rejecting mere causation as a basis for tort liability, Holmes concludes that absolute liability does not exist in tort law. Holmes contends that the law in operation requires both causation and foresight before it imposes liability. Negligence law imposes liability for negligent conduct in the face of foreseeable harm. Strict liability imposes liability for non-negligent conduct in the face of foreseeable harm. It redistributes losses from the plaintiff who has done nothing to a defendant who chose to act in the face of foreseeable risks. In Holmes' view, no liability can be imposed where non-negligent conduct leads to unforeseeable harm. Holmes points out that to do otherwise runs counter to two important policies embodied in tort law. First, it is contrary to the notion that moral responsibility does not exist where the actor lacks any power of choice in the matter. Second, it does not further the social insurance aspect of the law since the actor is unable to obtain insurance to cover unforeseeable risks. Professor Rosenberg's book provides an excellent discussion of Holmes' theory of jurisprudence, his analysis of important principles in tort law, and legal scholarship and history. The insights into negligence and strict liability will be helpful to practitioners and judges.

Confessions, Truth, and the Law Joseph D. Grano University of Michigan Press 1996

In a lucid discussion of the law governing the admissibility of confessions and other incriminating statements, Professor Grano provides a welcome analysis of constitutional, practical, and theoretical concerns raised by the rules governing police interrogations and criminal procedure. Insisting that the discovery of truth should be seen as a dominant goal in the rules governing criminal procedure, Professor Grano contends that this goal must be "understood in the context of an axiomatic commitment to an adversarial or accusatorial mode of procedure." Professor Grano points out that other values compete with the goal of truth discovery, such as the desire to protect the innocent. He explores Miranda v Arizona in light of the policy considerations it embodies and its doctrinal roots. Professor Grano traces Miranda to its roots in the Fifth Amendment's proscription against self-incrimination and the Sixth Amendment's recognition of a right to counsel for defense of criminal prosecutions, and the Fourteenth Amendment's due process voluntariness rule. In Professor Grano's view, if Miranda is read "as an interpretation of what the Fifth Amendment, even broadly construed, actually requires, ¼ [it] is seriously flawed." Professor Grano also contends that if "read as a prophylactic decision, which is how it is currently read, Miranda reflects an untenable and an alarming understanding of the United States Supreme Court's authority over state courts." Characterizing it as a triumph of formalism, Professor Grano urges its reversal. Whether you agree with his conclusions or not, you cannot help but gain an enhanced appreciation for the policies, constitutional considerations, and history of criminal procedure if you read this book.

Here Come the BAP—But Not in Michigan

On January 1, 1997, a Bankruptcy Appellate Panel (BAP) is scheduled to begin operations in the Sixth Circuit. Proposed rules and internal operating procedures have been released for comment. The judges of each district must vote in favor of the BAP before it can be implemented in that district. Michigan's two districts believe the BAP to be unnecessary. The judges of the Western District unanimously opposed it in November 1995. In the Eastern District, opposition to the BAP has been strong for years. Proposed BAP Rule 8013.2 suggests that BAP decisions (at least if published and not limited by the deciding panel) are precedential, but it is an open question who will be bound by them. The better view in the Ninth Circuit, where this question has received the most attention, is that district courts are not bound by BAP decisions. The harder question is whether bankruptcy courts within the Sixth Circuit will be bound to follow decisions of the new BAP. Compare In re Globe Illumination Co., 149 BR 614 (Bkrtcy CD CA 1993) (BAP is adjunct of circuit court and its decisions bind Ninth Circuit bankruptcy courts) with K. March & R. Obregon, Are BAP Decisions Binding on Any Court?, 18 Cal Bankr J 189 (1990) (the authors' answer is no). Presently, bankruptcy appeals are heard by a district court sitting as a one-judge appellate court. A second appeal of right is available to the Sixth Circuit from final judgments of the district court. The BAP also functions as an intermediate appellate court, with review of its final judgments by the Sixth Circuit. Under the BAP system, authorized by 28 USC §158(b), all appeals initially are routed to the BAP unless the appellant elects a district court appeal at the time of filing. Appellees have 30 days to elect a district court appeal, but must do so before filing any papers other than an appearance (e.g., a notice of cross-appeal). The same "opt out" rights exist for applications for leave to appeal. Under the proposed rules, the BAP initially will consist of five bankruptcy judges, one each from Michigan, Kentucky and Tennessee and two from Ohio. Michigan will be represented by Bankruptcy Judge Steven W. Rhodes of the Eastern District. These judges will continue to handle cases in their own districts, although a caseload reduction is authorized. Individual appeals are submitted to a panel of three judges, none of whom may be from the district in which the appeal originates. The BAP will be headquartered in Cincinnati. Sixth Circuit Clerk Leonard Green will be the clerk of the BAP until further notice. Generally, chapter VIII of the Bankruptcy Rules sets forth the procedure for appeals to district courts and the BAP. There are differences, notably an appendix requirement for BAP appeals. Under Fed R Bankr P 8009(b), the appendix is filed with the appellant's brief. Under the proposed Sixth Circuit rules, briefs will be subject to print-size and cover-color requirements and will include a disclosure of corporate affiliations and financial interest. The Bankruptcy Reform Act of 1978 had contemplated that BAPs would be the exclusive intermediate appellate tribunal in circuits that adopted them, but the Supreme Court in Northern Pipeline Const Co v. Marathon Pipe Line Co., 458 US 50 (1982), held unconstitutional the jurisdiction conferred on non-Article III bankruptcy courts by the 1978 Act. In 1982, only the First and Ninth Circuits had authorized BAPs. Congress revamped the Bankruptcy Code in 1984, attempting to overcome Northern Pipeline objections by making BAP appeals subject to the consent of the parties. Some commentators still express reservations about the constitutionality of the BAP system. The 1994 Bankruptcy Reform Act mandated the establishment of BAP panels in each circuit, with narrow exceptions that the Sixth Circuit has decided do not apply here. At present, about six circuits have or are now implementing BAP panels. Only the two districts in Ohio have voted to use BAP panels thus far. The experience in the Ninth Circuit, the only circuit to have used the BAP extensively, is that the appellant elects a BAP appeal about 60 percent of the time. No figures are available for how frequently the appellee consents to the BAP election.

Brian Shannon

The Appellate Practice Section on the 'Net

Section members and others will soon have access to back issues of the Appellate Practice Section Newsletter on the Internet through the State Bar of Michigan's home page. Appellate Practice Section members will continue to receive the current issue of the Newsletter. Back issues will be sent to the State Bar only after a new issue is published. If you have not visited the State Bar's home page it is certainly worth the time to do so. In addition to information about the various state bar sections and members, the bar's home page includes links to other law-related sites and published opinions of the Michigan Supreme Court and the Michigan Court of Appeals. The State Bar's home page is by no means the only law-related access site. There are many, many other sites out there. In coming months we hope to bring you our opinions of the best.

Nation's Appellate Court Clerks Meet in Iowa

As Iowa celebrated the 100th anniversary of its famous State Fair at Des Moines, the city also hosted the twenty-third annual meeting of the National Conference of Appellate Court Clerks during the week-long period beginning August 2, 1996. Ella Williams, Chief Clerk of the Michigan Court of Appeals, attended from Michigan. Ms. Williams is the immediate past president of the Conference. She continues to serve the Conference as Chair of the Nominating Committee and will participate in the Long Range Planning Committee. The National Conference of Appellate Court Clerks was formed in 1973 under the aegis of the Appellate Judges' Conference of the American Bar Association. It has grown from a nucleus of 28 members to over 200 currently active participants. The annual week-long meeting presented programs and workshops designed to improve the technical and managerial skills of its members in the field of appellate court administration.

Insight Into Applications for Leave to Appeal Process

Before a standing room only crowd three justices of the Michigan Supreme Court, Chief Justice James H. Brickley, and Associate Justices Patricia J. Boyle and Conrad L. Mallett, the Clerk of the Court Corbin R. Davis, and the Court's Chief Commissioner Al Lynch, provided section members and others with a candid look at the Court's leave application process. The discussion, sponsored by the Appellate Practice Section, took place during the State Bar of Michigan's Annual Meeting in September in Grand Rapids. For those of you who were unable to attend, what follows is a synopsis of the flow of an application for leave to appeal through the Court. Michigan Lawyers Weekly provided extensive coverage of the event in its October 14, 1996, edition. Once an application for leave to appeal is received by the clerk's office, it is passed on to the Supreme Court's Commissioner's Office. The commissioners, who are experienced attorneys, prepare a detailed report to the justices on each application that is filed. The report includes the parties' arguments and the applicable law. The report also includes the date by which the justices should decide whether to grant or deny leave to appeal. The justices discuss these applications for leave to appeal at weekly conferences, and, if four of the justices agree, leave to appeal is granted. In addition, the Justices touched on, among other topics, the value of amicus briefs, the quality of the advocacy before the Court, and the availability of peremptory relief. Clerk Davis offered some common sense advice for Supreme Court practice, including a checklist for filing applications in the Court.