Opinion
99-35, 99-56.
December 13, 2000.
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 7.202 and 7.215 of the Michigan Court Rules are adopted, to be effective April 1, 2001.
[The present language is amended as indicated below.]
Rule 7.202 Definitions
For purposes of this subchapter:
(1) — (6) [Unchanged.]
(7) "final judgment" or "final order" means:
(a) [Unchanged.]
(b) In a criminal case,
(i) — (iii) [Unchanged.]
(iv) a sentence imposed, or order entered, by the trial court following a remand from an appellate court in a prior appeal of right; or
(v) [Unchanged.]
Rule 7.215 Opinions, Orders, Judgments, and Final Process for Court of Appeals
(A) Opinions of Court. An opinion must be written and bear the writer's name or the label "per curiam" or "memorandum" opinion. An opinion of the court that bears the writer's name shall be published by the Supreme Court reporter of decisions. A memorandum opinion shall not be published. A per curiam opinion shall not be published unless one The Supreme Court reporter of decisions shall not publish a per curiam or memorandum opinion unless a majority of the judges deciding the case directs the reporter to do so at the time it is filed with the clerk. A copy of an opinion to be published must be delivered to the reporter no later than when it is filed with the clerk. The reporter is responsible for having those opinions published as are opinions of the Supreme Court, but in separate volumes containing opinions of the Court of Appeals only, in a form and under a contract approved by the Supreme Court.
(B) — (C) [Unchanged.]
(D) Requesting Publication.
(1) Any party may request publication of an authored or per curiam opinion not designated for publication by
(a) filing with the clerk 4 copies of a letter stating why the opinion should be published, and
(b) mailing a copy to each party to the appeal not joining in the request, and to the clerk of the Supreme Court.
Such a request must be filed within 21 days after release of the unpublished opinion or, if a timely motion for rehearing is filed, within 21 days after the denial of the motion.
(2) Any party served with a copy of the request may file a response within 14 days in the same manner as provided in subrule (D)(1).
(3) Promptly after the expiration of the time provided in subrule (D)(2), the clerk shall submit the request, and any response that has been received, to the panel that filed the opinion. Within 21 days after submission of the request, the panel shall decide whether to direct that the opinion be published. The opinion shall be published only if the panel unanimously so directs. Failure of the panel to act within 21 days shall be treated as a denial of the request.
(4) The Court of Appeals shall not direct publication if the Supreme Court has denied an application for leave to appeal under MCR 7.302.
(E) — (I) [Formerly (D) — (H), redesignated, but otherwise unchanged.]
I would adopt proposed MCR 7.215(D) as published for comment, but modified to allow a request for publication to be filed by anyone within 42 days of release of the opinion and to permit two judges on the panel to grant the request.
Staff Comment:
The December 13, 2000, amendments of MCR 7.202 and 7.215, effective April 1, 2001, make several changes regarding procedure in the Court of Appeals.
The amendment of MCR 7.202(7)(b)(iv) makes certain orders entered by the trial court on remand from an appellate court appealable by right.
The amendment to MCR 7.215(A) permits a single judge of the Court of Appeals panel to designate an opinion for publication.
New MCR 7.215(D) re-establishes a procedure under which a party may request publication of a Court of Appeals opinion that was not initially designated for publication. The former provision was deleted in 1995.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.