Opinion
Docket No. 149561. COA No. 321601.
2014-08-11
Robert HEXIMER, Plaintiff–Appellant, v. CHIPPEWA CORRECTIONAL FACILITY WARDEN, Defendant–Appellee.
Prior report: 496 Mich. 862, 849 N.W.2d 27.
Order
On order of the Chief Justice, the motion for reconsideration is DENIED. The holding in Smith v. Bennett, 365 U.S. 708, 710, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961), was based in part on the U.S. Supreme Court's earlier decision in Burns v. Ohio, 360 U.S. 252, 253, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959), which held that a state cannot “constitutionally require that an indigent defendant in a criminal case pay a filing fee before permitting him to file a motion for leave to appeal in one of its courts.” [Emphasis added.] Although Smith v. Bennett precludes a court from refusing to docket and decide a habeas corpus action because of the inability to pay the filing fee, nothing in the decision mandates that there be a complete waiver of court fees. Accordingly, the Clerk shall retain plaintiff's pleadings for an additional 21 days to allow plaintiff to comply with the Court's July 21, 2014 order.