State
Bar of Michigan
Appellate
Practice Section
Newsletter
Volume 2, Number 1 November
1996
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
Photographs on page
21
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. The arguments were preceded
by introductory remarks from law school Dean James K. Robinson,
Mary Massaron Ross, and Kathleen Moro Nesi.
The program also included
a presentation by Sixth Circuit Clerk Leonard Green, a round table
discussion of the arguments among the participants, and a question
and answer session.
Registrants received a packet
of materials which contained, among other things, briefs for the
arguments. Briefs for the civil case (a mock case) were prepared
by Patrick Burkett (Sommers, Schwartz, Silver, & Schwartz,
P.C., brief for appellant) and Jeffrey Gerish (Plunkett &
Cooney, P.C., brief for appellee). Oralists for the civil case
were Joseph A. Golden (Sommers, Schwartz, Silver & Schwartz,
P.C.), for the appellant and Ernest
See Sixth Circuit
page 21
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
See Recent Decisions
page 4
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
Recent Decisions
continued from page 3
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
See Recent Decisions
page 7
A Word From the Chair
Justice Holmes spoke eloquently
of the law as a calling in which "a man may live greatly¼."
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.
See Word from the
Chair page 10
Shannon's
Soapbox
When I handed over the Section
gavel to Mary Massaron Ross on September 20 at the annual business
meeting, the assembled members kindly offered me a holdover tenancy
of this soapbox. As before, the views expressed are personal
and not endorsed by the Section.
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
See Soapbox page
14
Recent Decisions
continued from page 4
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).
See Recent Decisions
page 11
January 10, 1997
Spruce Room, Doubletree Hotel
Novi -- 2:00 p.m. - 4:00 p.m.
February 7, 1997
Site in Novi to be determined
2:00 p.m. - 4:00 p.m.
March 7, 1996
Site in Novi to be determined
2:00 p.m. - 4:00 p.m.
April 10, 1997
Site in Lansing to be determined
5:00 p.m. - 7:00 p.m.
May 9, 1997
Site in Novi to be determined
2:00 p.m. - 4:00 p.m.
June 13, 1997
Site in Novi to be determined
2:00 p.m. - 4:00 p.m.
September 1977
Annual Meeting of the State Bar
Detroit 2:00 p.m. - 5:00 p.m.
Please contact Mary Massaron Ross at (313) 983-4801 if you plan to attend any of the Council meetings .
Michigan
Court of Appeals Seeks Assistance Through
Survey of Litigants'
Attorneys
On October 1, 1996, the
Lansing office of the Court of Appeals embarked on a pilot team
project in which the court will be handling cases in a different
manner than in the past, and in a different manner from the other
site offices. The Court's Comprehensive Screening Committee is
asking you to complete and return the following survey so that
it can get your feedback on your satisfaction of case handling
at the start of the project. The Committee will again ask for
your feedback in one year at the end of the project. The Committee
thanks you for your time and effort.
Please indicate whether
you strongly agree (SA), agree (A), aren't sure
whether you agree or disagree (NS), disagree (D),
or strongly disagree (SD) with the following statements:
1. The Lansing staff is
polite and courteous when I call or come in to the office.
2. The Lansing staff always
gives accurate information in response to my general questions
about the Court of Appeals, such as filing timeliness, hours of
operation, etc.
3. The Lansing staff always
gives accurate information in response to my specific questions
about a specific case on appeal.
4. I know who to call in
the Lansing office when I have a specific question about a specific
case on appeal.
5. I have a good understanding
of how a case flows through the Court of Appeals.
6. The Lansing staff is
knowledgeable about the operation of the entire Court.
7. The Lansing Staff always
gives consistent answers to my questions.
8. I am generally satisfied
with the speed and efficiency in which my cases go through the
Lansing office of the Court of Appeals.
9. The Lansing Staff always
promptly follows through with their promised actions, such as
returning telephone calls, providing additional answers not initially
available, and taking appropriate action on my case(s).
10. The Lansing staff is
always willing to cooperate with me to work out problems with
my appeals.
11. The Lansing staff seems
to care about doing a good job.
12. The Lansing staff always
follows and enforces the court rules.
13. The Lansing staff always
processes my pleadings promptly.
14. The Lansing staff has
a good understanding of how a case flows through the Court of
Appeals.
15. Additional Comments:
____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Please copy this survey,
complete it, and submit your completed survey to:
Hannah Watson, Michigan
Court of Appeals
Washington Square Building
109 W. Michigan Avenue
P.O. Box 30022
Lansing, MI 48909-7522
Word from the Chair
continued from page 5
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
As the Michigan Court Practice
Committee moves forward in its second year, we are seeking new
members who would be
See Join Us page
11
Join Us
continued from page 10
interested in actively participating
in the committee's work. We hope to have a productive year, and
look forward to welcoming new members who wish to help with our
efforts. (Plus, it's a great way to keep informed about matters
that affect your practice!) The committee has a new Chair, Angela
Nicita, and a new Vice-Chair, Susan Zitterman. The committee
meets approximately once a month.
Rosalind Rochkind, the immediate
past chair of the committee, and who has been kind enough to remain
active in the committee, gave a very apt description of what the
work of the Michigan Practice Committee is all about in the February
1996 Section Newsletter:
The Michigan Court Practice
Committee, as its name implies, has decided to pursue projects
that aid appellate attorneys in their "practice" before
the appellate courts under the currently prevailing procedures
of those courts. By compiling and disseminating information about
the practical realities of appellate practice in Michigan, we
hope to inform section members about required procedures that
might be overlooked, as well as provide feedback to the courts
concerning both the positive and negative effects that these procedures
may have on our practices. It is our hope that our projects will
allow attorneys to more efficiently and effectively comply with
the needs and requirements of the courts.
In terms of providing information
to practitioners and feedback to the courts, the committee is
presently working on a report regarding the Court of Appeals'
recently-adopted strict enforcement policy -- how the court is
actually using the policy, its effects on practitioners, and an
analysis of the beneficial and/or negative implications of those
policies for the appellate justice system. The committee is collecting
examples of "defect letters" received by practitioners
and is also interested in any anecdotal information that practitioners
are willing to share regarding their experiences with the strict
enforcement policy. Please send anything you think may be pertinent
to:
Angela Nicita
1490 First National Building
Detroit, MI 48226
Recent Decisions
continued from page 7
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
See Recent Decisions
page 12
Recent Decisions
continued from page 11
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).
1996-1997 Council Meetings