Mich. Ct. R. 7.312
follow this general form:
IN THE SUPREME COURT
APPEAL FROM THE [COURT OR TRIBUNAL APPEALED FROM]
[JUDGE OR PRESIDING OFFICER]
_[ Name of Party ]________________,
Plaintiff-[Appellant or Appellee],
MSC No. _____[ leave blank ]______
v
COA No. ______________________
Trial Ct No. ____________________
_[ Name of Party ]________________,
Defendant-[Appellant or Appellee].
Brief on Appeal - [Appellant or Appellee]
ORAL ARGUMENT [REQUESTED/NOT REQUESTED]
___________________________________
Attorney for [PL or DF]-[AT or AE]
[Business Address]
_____________________
______________________
_______________________
Mich. Ct. R. 7.312
Staff Comment: The amendment of MCR 7.312 incorporates into the Supreme Court rules the procedure to be followed for cases being argued on the application. These rules have been previously included in orders granting argument on the application. A new subrule (K) alerts parties to the fact that they should argue the merits of the case even for motions being heard on the application.
The staff comment is not an authoritative construction by the Court. In addition, adoption of an amendment in no way reflects a substantive determination by this Court.
[Concurring and dissenting statements begin on next page.]
MCCORMACK, C.J. (concurring). I concur in the order amending MCR 7.312 to incorporate our "mini oral argument on the application" (MOAA) process into the court rules. I write separately to explain why I believe retaining the MOAA procedure improves our administration of justice.
The Court first adopted the MOAA process in 2003, and we have greatly increased its use in recent years. Despite that fact, until today we had not amended our court rules to provide uniform timelines for filing briefs in MOAAs; rather, the Court set such timelines in individual MOAA orders. Today's amendments simplify that process.
The MOAA procedure serves an important purpose independent of granting leave to appeal-it allows the Court to hear oral argument in more cases, including cases that might not otherwise receive closer attention. Or to hear oral argument in a case where the Court of Appeals' decision appears erroneous, but is not so clearly erroneous as to warrant peremptory reversal. It thus broadens the scope of the Court's docket in a way that the grant leave/take peremptory action/deny leave framework did not allow.
I believe the MOAA procedure has served this Court well and will continue to do so in the future. Others think so too. After we published this proposal for public comment, the Court received positive feedback about the MOAA procedure. For example, the State Appellate Defender Office, which represents indigent criminal defendants in their appeals regularly in this Court, had this to say:
An extraordinary number of leave applications the Court receives are from criminal appellants. Having a simpler, less time-consuming avenue of review available gives those parties-most of whom are incarcerated and poor-a better chance at having their cases examined at a level beyond the commissioners' reports or the Court's weekly conferences than the all-or-nothing scenario that previously existed. It gives the Court greater flexibility to order peremptory and more discre[te] forms of relief in individual cases, despite that the Court is not an error-correcting body. And it provides counsel better and more opportunities to educate and enlighten the justices regarding recurring problems and trends within the system. On balance, the Court, the parties, and the system have benefited from the MOAA procedure.
I respectfully disagree with Justice VIVIANO's view that the MOAA process has "diminished" or "devalued" oral argument. In recent years, we have limited most full grants to 20 minutes of argument per side, rather than the traditional 30. Thus, the grant and MOAA processes effectively now allow for roughly the same amount of argument. And we have lots of company in limiting oral arguments to less than 30 minutes. See, e.g., Supreme Court of Ohio, Jurisdiction & Authority https://www.supremecourt.ohio.gov/SCO/jurisdiction/(accessed January 27, 2022) [https://perma.cc/JY37-A6LF] (providing for 15 minutes of oral argument per side except in death penalty cases); Texas Judicial Branch, Supreme Court Oral Arguments https://www.txcourts.gov/supreme/oral-arguments/(accessed January 27, 2022) [https://perma.cc/AA2X-4QMV] (providing for 20 minutes of oral argument per side); Florida Supreme Court, A Visitor Guide to Oral Argument https://www.floridasupremecourt.org/Oral-Arguments/Visitor-Guide-to-Oral-Arguments(accessed January 27, 2022) [https://perma.cc/N6AK-BFPA] (same). Some courts offer even less. See, e.g., State of Nebraska Judicial Branch, Supreme Court Call https://supremecourt.nebraska.gov/courts/supreme-court/call(accessed January 27, 2022) [https://perma.cc/6WES-PDMX] (providing for 10 minutes of oral argument per side). I know of no evidence that our sister courts' processes are diminished or their advocates frustrated by their shorter oral argument times.
Moreover, our court rules allow for the Chief Justice to extend the time for oral argument. MCR 7.314(B)(2). And arguments frequently stretch beyond the time allotted when the Court believes additional time is needed to fully engage all the issues presented. For just one recent example, see Michigan Supreme Court, Oral Arguments in Detroit Caucus v Independent Citizens Redistricting Comm, [https://www.youtube.com/watch?v=HwG2A9ajayUt=58s] (accessed January 27, 2022).
Finally, that other state supreme courts don't have a MOAA process isn't a reason to assume it is a vice rather than a virtue. Merit isn't measured by popularity. I believe that our MOAA procedure, while not without its imperfections, has proven to be a helpful tool in this Court's administration of justice. For these reasons, I am pleased to concur with the Court's amendment of MCR 7.312.
VIVIANO, J. (dissenting). When we published for comment the present changes to MCR 7.312, I suggested that the time had come to reconsider hearing cases argued on the application, or "mini oral arguments on the application" (MOAAs). After receiving thoughtful comments on this topic, I now conclude that we should eliminate our MOAA procedure and return to the traditional practice of either granting or denying leave to appeal and occasionally resolving cases on a peremptory basis.
Proposed Amendment of MCR 7.312, 503 Mich 1303, 1305 (VIVIANO, J., concurring).
As I explained in my earlier statement, the MOAA procedure began in 2003 as a way to expand our consideration of cases. The four justices supporting the procedure envisioned it as a supplementary process that would not detract from our ability to hear and decide cases in which we granted leave to appeal.
MCR 7.302, 469 Mich cxlv, cxlvi (MARKMAN, J., concurring) (predicting that allowing oral argument on the application would "not come at the expense of fuller oral argument, but as an alternative to no oral argument at all.").
But this prediction has not turned out to be true-at least not in recent years. Beginning in our 2014-2015 term, the number of cases in which we have granted leave to appeal has plunged, and starting with our 2015-2016 term, we began to hear many more cases as MOAAs than grants. In the 2016-2017 term, for example, we heard 41 MOAAs as compared to 17 grants. The following term, it was 53 MOAAs to 17 grants. The gap has remained about the same since that time.
In the 2018-2019 term, there were 52 MOAAs and 10 grants; in the 2019-2020 term, there were 34 MOAAs and 18 grants; and in the 2020-2021 term, we heard 50 MOAAs and 18 grants. Thus, during the past five terms, we averaged 46 MOAAs and 16 grants per term. By comparison, during the five terms before that, we averaged 25 MOAAs and slightly over 39 grants per term.
The results have not been good. One of the most significant problems is that we end up denying leave in a substantial portion of cases heard on MOAAs. A MOAA "give[s] the Court the option of disposing of a case after arguments without a decision on the merits by simply denying leave, instead of our traditional practice following a grant of leave to appeal, i.e., entry of an order vacating the grant order and denying leave . . . ."
Proposed Amendment of MCR 7.312, 503 Mich at 1306 (VIVIANO, J., concurring).
As Timothy Baughman, one of the commenters on the present proposal, noted, vacating a grant order on the ground that leave was improvidently granted (LIG) "is essentially viewed as an error in case selection, absent some change in circumstances that causes the LIG." Perhaps because of the perception that a LIG amounts to an admission of error, the prospect of a LIG is generally viewed as less appealing than a simple denial. But our LIG orders do not say that leave was improvidently granted-as noted, we simply vacate the order granting leave and then deny the application. Consequently, the results and even the labels are the same in cases denying leave after MOAAs and initial grants.
Nonetheless, the apparent belief that MOAAs offer an easier exit ramp has unfortunate side effects. It decreases the cost of poor case selection and thereby diminishes the incentive for our Court to be more careful in our initial case selection. This creates a feedback loop in which the ease of denying leave after oral argument leads to us investing more time on cases that will eventually result in denials (and, consequently, less time on those that do not). It should come as no surprise that we deny leave in MOAAs much more frequently than we LIG in grant cases. And as we have heard more cases as MOAAs and denied leave in many of them, our opinion output has plummeted.
In my last statement, I noted that "by one account, the Court has issued denials in 50 of the 150 MOAAs it has considered during the past five terms." Id. at 1306 n 6. In the 2018-2019 term, we denied leave in 17 of the 52 MOAAs and did not issue LIGs in any of the 10 grant cases. In our 2019-2020 term, we denied leave in 10 of the 34 MOAAs, and we issued LIGs in 2 of the 18 grants. Last term, in 2020-2021, we denied leave in 12 of 50 MOAAs and issued one LIG in our 18 grants.
In the 1960s, we issued 194 opinions per year; in the 1980s, we issued 99 opinions per year. Boyle, Michigan Supreme Court: Are We Dancing as Fast as We Can?, 74 Mich B J 24, 27-28 (1995). As Mr. Baughman observes, over roughly the past decade, we have averaged 36 opinions per term. Although there are also other reasons for the diminishing output, see id. at 28, the MOAA procedure undoubtedly is a contributing factor. While more opinions might not always be better, I fear that our limited numbers fail to provide sufficient guidance in all the areas of the law that need our attention.
A related issue is the predicament MOAAs cause for practitioners. For one thing, there has been some understandable confusion about whether the briefing in MOAA cases should focus on the substantive merits of the case or on convincing the Court to hear the case as a grant. The current order attempts to clear that up. Yet ambiguity persists, as there are no standards for determining whether a case deserves a MOAA or a grant order and whether opting for one path over the other reveals the scope of the Court's ambition in a case. Practitioners might well believe that a MOAA order, as opposed to a grant, means we hope not to change or disturb the law in a particular area. Nothing, however, prevents the Court from doing so. For example, the mere fact that we have chosen to hear a case as a MOAA does not necessarily signal that we are unwilling to reexamine our precedent applicable to that case.
With so many MOAAs resulting in denials, the side that won below will, even after the present changes, retain the incentive to argue that we should simply deny leave and let the lower court decision remain in place. Such arguments are often successful. But they do not help us articulate the law in a manner that offers the guidance and finality that only this Court, as the last word on Michigan law, can provide. MOAAs require practitioners and parties to commit considerable resources to a case that has a more than fair chance of simply being denied. The practitioners who come before our Court are dedicated and able, and it does neither them, their clients, nor the Court a service to ask for such an investment when it bears a diminished prospect of advancing the law.
Lastly, the MOAA process has diminished oral argument in our Court. As I noted in my earlier statement, "MOAAs give us the option of hearing a case but limiting oral argument to 15 minutes per side, as opposed to the traditional 30 minutes per side in cases where leave to appeal is granted." Thus, we are giving the parties half the time to cover not only how we should rule on the merits of the case, but also whether we should do so at all or simply deny leave. This, in my view, devalues oral argument in our Court and frustrates practitioners who do not and cannot know where they should focus their argument in this truncated time frame.
Proposed Amendment of MCR 7.312, 503 Mich at 1306 (VIVIANO, J., concurring).
A majority of this Court has further devalued oral argument over the past two years by choosing to hold our regular case calls by Zoom rather than by traditional in-person oral arguments in our vast courtroom at the Hall of Justice. Our poor example in this area has made oral argument during the compressed time we allow for MOAAs even less engaging, less substantive, and more frustrating for practitioners and the members of this Court who believe in-person proceedings are essential to the administration of justice. See generally Administrative Order, Rescission of Administrative Orders, ADM No 2020-08 (July 26, 2021) (VIVIANO and BERNSTEIN, JJ., concurring in part and dissenting in part) (discussing the problems with virtual court proceedings).
No other state supreme court has a MOAA process. While ours may have started as an admirable experiment to increase productivity and give more cases the opportunity for full argument before we resolve them, the MOAA has not achieved these objectives. It has, instead, led to fewer opinions and much seemingly wasted effort. Our reliance on the procedure has nonetheless become an unhealthy addiction, one with seemingly little benefit but substantial costs. I would rip off the band-aid and end the MOAA process today. For these reasons, I dissent.