Mich. Admin. Ord. Administrative Order No. 2004-5 (Second Amended)
Pursuant to Administrative Order No. 2004-5, this Court adopted an expedited summary disposition docket in the Court of Appeals to take effect on January 1, 2005, and to expire on December 31, 2006. On December 21, 2005, Amended Administrative Order 2004-5 was adopted to take effect January 1, 2006. We now order that the expedited summary disposition docket continue in effect, as modified infra, for an additional one-year period to expire December 31, 2007.
Although the Court of Appeals has failed to meet the stated objectives for this pilot program during its existence, the Court is persuaded to approve the extension of the expedited summary disposition docket because the Court of Appeals Work Group (which consists of members of the Court of Appeals, Court of Appeals staff members, and members of the Appellate Practice Section) unanimously recommended the extension in anticipation that the newest recommended changes will permit the program to meet its goals. The Court of Appeals and members of the bar should not presume that this extension in any way signals the Court's intention to eventually make the program permanent, particularly if it does not meet its intended goal of reducing appellate delay in the Court of Appeal during this additional year of experimentation.
1. Applicability. This amended administrative order applies to appeals filed on or after January 1, 2007, arising solely from orders granting or denying motions for summary disposition under MCR 2.116. Unless otherwise removed by order of the Court of Appeals, these appeals shall be placed on an expedited appeal track under which they shall generally be briefed, argued, and disposed of within six months of filing. A motion to remove is required for a party to divert such appeals to the standard appeal track.
2. Time Requirements. Appeals by right or by leave in cases covered by this second amended order must be taken within the time stated in MCR 7.204 or MCR 7.205. Claims of cross-appeal must be filed within the time stated in MCR 7.207.
3. Trial Court Orders on Motions for Summary Disposition. If the trial court concludes that summary disposition is warranted under MCR 2.116(C), the court shall render judgment without delay in an order that specifies the subsection of MCR 2.116(C) under which the judgment is entered.
4. Claim of Appeal - Form of Filing. With the following exceptions, a claim of appeal filed under this order shall conform in all respects with the requirements of MCR 7.204
(A) A docketing statement is not required unless the case is removed by order before the filing of the appellant's brief.
(B) When the claim of appeal is filed, it shall be accompanied by:
(1) evidence that the transcript of the hearing(s) on the motion for summary disposition has been ordered, or
(2) a statement that there is no record to transcribe, or
(3) the stipulation of the parties that the transcript has been waived.
Failure to file one of the above three documents with the claim of appeal will not toll subsequent filing deadlines for transcripts or briefs. Sustained failure to provide the required documentation may result in dismissal of the appeal under MCR 7.201(B)(3), as long as the Court of Appeals provides a minimum 7-day warning.
5. Application for Leave - Form of Filing. An application for leave to appeal, or an answer to an application for leave to appeal, filed under this second amended administrative order shall conform in all pertinent respects with the requirements of MCR 7.205. At the time an application or an answer is filed, the filing party must provide the Court of Appeals with 5 copies of that party's trial court summary disposition motion or response, brief, and appendices.
6. Claim of Cross-Appeal. A claim of cross-appeal filed under this second amended administrative order shall conform in all pertinent respects with the requirements of MCR 7.207. Upon the filing of a claim of cross-appeal in an appeal proceeding on the summary disposition track, the Court will remove the case from the track as provided in section 7, if it determines that the case is no longer appropriate for the track.
7. Removal from Summary Disposition Track. A party may file a motion, or the Court may act sua sponte to remove a case from the summary disposition track to the standard track.
(A) Time to File. A motion to remove may be filed by any party at any time.
(B) Form. Motions to remove shall concisely state the basis for removal, and must be in the form prescribed by the Court of Appeals. Factors that weigh in favor of removal include:
(1) the length of one or more briefs exceeds 25 pages; removal of the case from the summary disposition track becomes more likely as the briefs approach the 35-page limit under section 9(C),
(2) the lower court record consists of more than 3 moderately sized files and more than 100 pages of transcripts from the relevant hearing(s) and deposition(s),
(3) there are more than four issues to be decided, and
(4) one or more of the issues are matters of first impression, including the first interpretation of a statute, or are factually or legally complex.
(C) Fee. No fee is required for a motion to remove from the summary disposition track.
(D) Answer. An answer to a motion to remove must be filed within 7 days after service of the motion.
(E) Disposition. Motions to remove shall be liberally granted. Within 14 days after the filing of the motion to remove, the Court of Appeals shall issue an order disposing of the motion and setting the time for further filings, if any, in the case. The time for further filings in the case will commence on the date of certification of the order on the motion.
(F) Docketing Statement. If the case is removed from the summary disposition track before the filing of the appellant's brief, a docketing statement must be filed within 14 days after the date of certification of the order on the motion.
(G) Administrative Removal. The Court of Appeals will remove a case from the summary disposition track, on its own motion, if it appears to the Court that the case is not an appropriate candidate for processing under this second amended administrative order. Such administrative removal may be made at any time, even after the parties' briefs are filed.
(H) Effect of Removal. If the Court of Appeals removes a case from the summary disposition track before the filing of the appellant's brief, the parties are entitled to file briefs in accordance with time requirements and page limitations set forth in MCR 7.212. New or supplemental briefs shall not be permitted in cases removed from the summary disposition track after the filing of the parties' briefs except upon motion of a party and further order of the Court.
8. Transcript - Production for Purposes of Appeal.
(A) Appellant.
(1) The appellant must order the transcript of the hearing(s) on the motion for summary disposition before or contemporaneously with the filing of the claim of appeal or application for leave to appeal, unless there is no record to transcribe or all parties to the appeal stipulate that the transcript is unnecessary.
(2) Evidence that the transcript was ordered must be filed with the claim of appeal or application for leave to appeal. Appropriate evidence of the ordering includes (but is not limited to) the following:
(a) a letter to the specific court reporter requesting the specific hearing dates and enclosing any required deposit; or
(b) an "Appeal Transcript, Demand, Order and Acknowledgment" form, or
(c) a court reporter or recorder's certificate.
(3) If the transcript is not timely filed, the appellant or an appellee may file an appropriate motion with the Court of Appeals at any time. Avoiding undue delay in filing the motion under the circumstances of the case, and concisely stating the specific basis for it, will maximize the likelihood that the motion will be granted.
(4) If an appropriate motion is filed, the order disposing of such motion shall state the time for filing any outstanding brief(s).
(5) Absent an order of the Court of Appeals that resets the time, the appellant's brief will be due as provided in section 9(B)(1) regardless of whether the ordered transcript is timely filed.
(B) Appellee.
(1) If the transcript has been ordered by the appellant but is not filed by the time the appellant's brief is served on an appellee, the appellee may file an appropriate motion with the Court of Appeals. Avoiding undue delay in filing the motion under the circumstances of the case, and concisely stating the specific basis for it, will maximize the likelihood that the motion will be granted.
(2) If an appropriate motion is filed, the order shall state the time for filing any outstanding appellee briefs.
(C) Court Reporter. The court reporter or recorder shall file the transcript with the trial court or tribunal within 28 days after it is ordered by either the appellant or the appellee. The court reporter or recorder shall conform in all other respects with the requirements of MCR 7.210.
(D) Transcript Fee. The court reporter or recorder shall be entitled to the sum of $3.00 per original page and 50 cents per page for each copy for transcripts ordered in appeals processed under the expedited docket, if the transcript is filed within 28 days after it was ordered. If the court reporter or recorder does not file the transcript within 28 days after it was ordered, the rate will remain $1.75 per original page and 30 cents per page for each transcript, as set by MCL 600.2543.
9. Briefs on Appeal.
(A) With the following exceptions, the parties' briefs shall conform to the requirements of MCR 7.212.
(B) Time For Filing.
(1) In appeals by right, the appellant's brief shall be filed within 56 days after the claim of appeal is filed, or as ordered by the Court. In appeals by leave, the appellant's brief shall be filed within 28 days after the order granting leave is certified, or as ordered by the Court. In appeals by leave, the appellant may rely on the application for leave to appeal rather than filing a separate brief by timely filing 5 copies of the application for leave to appeal with a new cover page indicating that the appellant is relying on the application in lieu of filing a brief on appeal. The cover page should indicate whether oral argument is requested or is not requested. MCR 7.212(C)(1).
(2) The appellee's brief shall be filed within 28 days after the appellant's brief is served on the appellee, or as ordered by the Court. In appeals by leave, the appellee may rely on the answer to the application for leave to appeal rather than filing a separate brief by timely filing 5 copies of the answer to the application for leave to appeal with a new cover page indicating that the appellee is relying on the answer to the application in lieu of filing a brief on appeal. The cover page should indicate whether oral argument is requested or is not requested. MCR 7.212(C)(1) and (D)(1).
(3) Time for filing any party's brief may be extended for 14 days on motion for good cause shown. If the motion is filed by the appellant within the original brief-filing period, the motion will toll the time for any sanctions for untimely briefs. A motion may include a statement from opposing counsel that counsel does not oppose the 14-day extension. A motion to extend the time for filing a brief will be submitted for disposition forthwith; opposing counsel need not file an answer.
(4) If the appellant's brief is not filed within 7 days after the date due, the Court of Appeals shall issue an order assessing costs and warning the appellant that the case will be dismissed if the brief is not filed within 7 days after the clerk's certification of the order. If the brief is not filed within that 7-day period, the Court of Appeals shall issue an order that dismisses the appeal and that may assess additional costs.
(C) Length and Form. Briefs filed under this second amended administrative order are limited to 35 pages, double-spaced, exclusive of tables, indexes, and appendices. At the time each brief is filed, the filing party must provide the Court of Appeals with that party's trial court summary disposition motion or response, brief, and appendices. Failure to file these documents at the time of filing the appellant's brief will not extend the time to file the appellee's brief. If the appellant filed copies of the appellee's summary disposition response, brief, and appendices, the appellee may omit these documents provided that appellee notes the omission prominently on the title page of the appellee's brief.
(D) A reply brief may be filed within 14 days after the appellee's brief is served on the appellant, and is limited to 5 pages, double-spaced, exclusive of tables, indexes, and appendices.
10. Record on Appeal. The Court of Appeals shall request the record on appeal from the trial court or tribunal clerk 28 days after jurisdiction has been confirmed and material filing deficiencies have been corrected. The trial court or tribunal clerk shall transmit the record as directed in MCR 7.210(G).
11. Notice of Cases. Within 7 days after the filing of the appellee's brief, or after the expiration of the time for filing the appellee's brief, the clerk shall notify the parties that the case will be submitted as a "calendar case" on the summary disposition track.
12. Decision of the Court. The opinion or order of the panel shall be issued no later than 35 days after submission of the case to, or oral argument before, a panel of judges for final disposition.
This amended order will remain in effect until December 31, 2007, during which time the Court of Appeals Work Group will monitor the expedited docket program. If, at any time during that monitoring process, it becomes apparent to the work group that procedural aspects of the program need to be modified, the group is encouraged to seek authorization from this Court to implement modifications. The work group will provide this Court with a written report by November 1, 2007, for this Court's use in evaluating expedited processing of summary disposition appeals to determine whether the procedure will be discontinued, changed, or continued.
Mich. Admin. Ord. Administrative Order No. 2004-5 (Second Amended)