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Amendment of Rules 2.119, 2005-36

Supreme Court of Michigan
May 28, 2008
ADM File No. 2005-36 (Mich. May. 28, 2008)

Opinion

ADM File No. 2005-36.

May 28, 2008.


On order of the Court, notice of the proposed changes and an opportunity for comment in writing and at a public hearing having been provided, and consideration having been given to the comments received, the following amendments of Rules 2.119, 7.204, and 7.205 of the Michigan Court Rules are adopted, effective September 1, 2008.

[Additions are indicated in underlining and deletions are indicated in strikeover.]

Rule 2.119 Motion Practice

(A)-(E)[Unchanged.]

(F) Motions for Rehearing or Reconsideration.

(1) Unless another rule provides a different procedure for reconsideration of a decision (see, e.g., MCR 2.604[A], 2.612), a motion for rehearing or reconsideration of the decision on a motion must be served and filed not later than 14 21 days after entry of an order disposing of deciding the motion.

(2)-(3)[Unchanged.]

(G) [Unchanged.]

Rule 7.204 Filing Appeal of Right; Appearance

(A) Time Requirements. The time limit for an appeal of right is jurisdictional. See MCR 7.203(A). The provisions of MCR 1.108 regarding computation of time apply. For purposes of subrules (A)(1) and (A)(2), "entry" means the date a judgment or order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal's register of actions.

(1) An appeal of right in a civil action must be taken within

(a) [Unchanged.]

(b) 21 days after the entry of an order denying deciding a motion for new trial, a motion for rehearing or reconsideration, or a motion for other postjudgment relief from the order or judgment appealed, if the motion was filed within the initial 21-day appeal period or within further time the trial court may have has allowed for good cause during that 21-day period;

(c)-(d) [Unchanged.]

If a party in a civil action is entitled to the appointment of an attorney and requests the appointment within 14 days after the final judgment or order, the 14-day period for the taking of an appeal or the filing of a postjudgment motion begins to run from the entry of an order appointing or denying the appointment of an attorney. If a timely postjudgment motion is filed before a request for appellate counsel, the party may request counsel within 14 days after the decision on the motion.

(2) An appeal of right in a criminal case must be taken

(a) [Unchanged.]

(b) within 42 days after entry of an order denying a timely motion for the appointment of a lawyer pursuant to MCR 6.425(F)(G)(1);

(c) [Unchanged.]

(d) within 42 days after the entry of an order denying a motion for a new trial, for judgment directed verdict of acquittal, or for resentencing to correct an invalid sentence, if the motion was filed within the time provided by in MCR 6.419(B), 6.429(B)(1) , or 6.431(A)(1), as the case may be.

A motion for rehearing or reconsideration of a motion mentioned in subrules (A)(1)(b) or (A)(2)(d) does not extend the time for filing a claim of appeal, unless the motion for rehearing or reconsideration was itself filed within the 21-or 42-day period.

(3) [Unchanged.]

(B)-(H)[Unchanged.]

Rule 7.205 Application for Leave to Appeal

(A) Time Requirements. An application for leave to appeal must be filed within

(1) 21 days after entry of the judgment or order to be appealed from or within other time as allowed by law or rule. ; or

(2) 21 days after entry of an order deciding a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the order or judgment appealed, if the motion was filed within the initial 21-day appeal period or within further time the trial court has allowed for good cause during that 21-day period.

For purposes of this rule subrules (A)(1) and (A)(2), "entry" means the date a judgment or order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal's register of actions.

(B)-(E)[Unchanged.]

(F) Late Appeal.

(1)-(2) [Unchanged.]

(3) Except as provided in subrule (F)(4), leave to appeal may not be granted if an application for leave to appeal is filed more than 12 months after the later of:

(a) [Unchanged.]

(b) entry of the order or judgment to be appealed from, but if a motion for new trial, a motion for rehearing or reconsideration, or a motion for other postjudgment relief from the order or judgment appealed was filed within the initial 21-day appeal period or within further time the trial court may have has allowed for good cause during that 21-day period, then the 12 months are counted from the entry of the order denying deciding the motion.

(4) The limitation provided in subrule (F)(3) does not apply to an application for leave to appeal by a criminal defendant if the defendant files an application for leave to appeal within 21 days after the trial court decides a motion for a new trial, for directed verdict of acquittal, to withdraw a plea, or to correct an invalid sentence, if the motion was filed within the 6-month period prescribed time provided in MCR 6.310(C), 6.419(B), 6.429(B), and 6.431(A), or if

(a)-(c) [Unchanged.]

A motion for rehearing or reconsideration of a motion mentioned in subrule (F)(4) does not extend the time for filing an application for leave to appeal, unless the motion for rehearing or reconsideration was itself filed within 21 days after the trial court decides the motion mentioned in subrule (F)(4), and the application for leave to appeal is filed within 21 days after the court decides the motion for rehearing or reconsideration.

A defendant who seeks to rely on one of the exceptions in subrule (F)(4) must file with the application for leave to appeal an affidavit stating the relevant docket entries, a copy of the register of actions of the lower court, tribunal, or agency, or other documentation showing that the application is filed within the time allowed.

(5) [Unchanged.]

(G) [Unchanged.]


The instant amendments would extend from 14 days to 21 days the period for filing an appeal after the entry of an order deciding a motion for new trial, a motion for rehearing or reconsideration, or a motion for other post-judgment relief. I respectfully dissent and would not adopt these amendments. Instead, I agree with the Michigan Judges Association that these amendments will "open the door for more motions, unnecessarily extending the time-period for finality of decisions and orders." Judge Michael Warren of the Sixth Judicial Circuit adds that "extending the deadline 50%" will "only serve to delay the administration of justice in the trial court." Although the staff comment emphasizes the "consistency" between MCR 2.119(F)(1) and MCR 7.204(A)(1)(b) that these amendments would achieve and the elimination of a presumed "conflict" between these rules, these objectives could be realized just as easily at 14 days as at 21 days. In enacting these amendments, this Court loses sight of what ought to be a primary objective of procedural reform by this Court — the expedition of the legal process and the avoidance of prohibitive legal costs for litigants. The instant amendments go in precisely the opposite direction. They signify a willingness to prolong the legal process for what could hardly be less compelling grounds.

Staff Comment: The amendments of MCR 7.204 and MCR 7.205 clarify that a party who seeks to appeal to the Court of Appeals has 21 days after the entry of an order deciding a motion for new trial, a motion for rehearing or reconsideration, or a motion for other relief from the order or judgment appealed to file a claim of appeal or an application for leave to appeal, if the motion is filed within the initial 21-day appeal period. The amendments also limit the ability of the trial court to extend the 21-day period under MCR 7.204(A)(1)(b), MCR 7.205(A)(2), and MCR 7.205(F)(3)(b) to situations in which good cause is shown.

For consistency with the amendments of MCR 7.204 and MCR 7.205, and to eliminate a conflict between MCR 2.119(F)(1) and MCR 7.204(A)(1)(b), the time limit for filing a motion for rehearing or reconsideration in the trial court under MCR 2.119(F)(1) is increased from 14 to 21 days.

The staff comment is not an authoritative construction by the Court.


Summaries of

Amendment of Rules 2.119, 2005-36

Supreme Court of Michigan
May 28, 2008
ADM File No. 2005-36 (Mich. May. 28, 2008)
Case details for

Amendment of Rules 2.119, 2005-36

Case Details

Full title:Amendment of Rules 2.119, 7.204, and 7.205 of the Michigan Court Rules

Court:Supreme Court of Michigan

Date published: May 28, 2008

Citations

ADM File No. 2005-36 (Mich. May. 28, 2008)