Opinion
ADM File No. 2004-24.
July 13, 2005.
On order of the Court, this is to advise that the Court is considering an amendment of Rule 7.211 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter also will be considered at a public hearing. The notices and agendas for public hearings are posted at www.courts.michigan.gov/supremecourt.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[Additions are indicated by underlining and deletions are indicated by strikeover.]
Rule 7.211 Motions in Court of Appeals
(A)-(B)[Unchanged.]
(C) Special Motions. If the record on appeal has not been sent to the Court of Appeals, except as provided in subrule (C)(6), the party making a special motion shall request the clerk of the trial court or tribunal to send the record to the Court of Appeals. A copy of the request must be filed with the motion.
(1) Motion to Remand.
(a) Within the time provided for filing the appellant's brief, the appellant may move to remand to the trial court. The motion must identify an issue sought to be reviewed on appeal and show:
(i) that the issue is one that is of record and that mustshouldbe initially decided by the trial court; or
(ii) that development of a factual record is required for appellate consideration of the issue.
A motion under this subrule must be supported by affidavit or offer of proof regarding the facts to be established at a hearing.
(b)-(d) [Unchanged.]
(2)-(9) [Unchanged.]
(D)-(E) [Unchanged.]
Staff Comment: The proposed change is intended to clarify that where claims that are the subject of motions for remand require development of facts not of record, the motion must be supported by affidavit or offer of proof regarding the facts to be established at a hearing.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the Secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on these proposals may be sent to the Supreme Court Clerk in writing or electronically by November 1, 2005, at P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@courts.mi.gov. When filing a comment, please refer to ADM File No. 2004-24. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.