Opinion
Order Entered April 3, 1998.
On order of the Court, this is to advise that the Court is considering proposed amendments to Michigan Court Rules 7.211, 7.212, and 7.213. Before determining whether the proposals should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposals. We welcome the views of all who wish to address the proposals or who wish to suggest alternatives.
[The present language would be amended as indicated below:]
RULE 7.211. MOTIONS is 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)-(c) [Unchanged.]
(d) If a motion to remand is granted, further proceedings in the Court of Appeals are stayed until completion of the proceedings in the trial court pursuant to the remand, unless the Court of Appeals orders otherwise.
(i) In cases not governed by a briefing schedule order, U unless the Court of Appeals sets another time, the appellant's brief must be filed within 21 days after the trial court's decision or after the filing of the transcript of any hearing held, whichever is later
(ii) If a briefing schedule order has been issued in the case, and under the schedule the appellant's brief would be due less than 21 days after the trial court's decision or after the filing of the transcript of any hearing held, whichever is later, the appellant may, on motion, request a revised briefing schedule order, which motion shall be granted. Otherwise the appellant's brief must be filed within the time provided in the briefing schedule order.
(2)-(7) [Unchanged.]
(D)-(E) [Unchanged.]
RULE 7.212. BRIEFS.
(A) Time for Filing and Service.
(1) Appellant's Briefs in Criminal Cases.
(a) Appellant's Brief Filing and Service. The appellant shall file 5 typewritten, xerographic, or printed copies of a brief with the Court of Appeals within
(i) 28 days after the claim of appeal is filed, the order granting leave is certified, or the transcript is filed with the trial court, whichever is later, in a child custody case or an interlocutory criminal appeal. This time may be extended only by the Court of Appeals on motion; or
(ii) the time provided by MCR 7.205(B)(5)(a), 7.208(B)(6), or 7.211(C)(1), in a case in which one of those rules applies;
(iii) 56 days after the claim of appeal is filed, the order granting leave is certified, or the transcript is filed with the trial court or tribunal, whichever is later, in all other cases. In a criminal case in which substitute counsel is appointed for the defendant, the time runs from the date substitute counsel is appointed or the transcript is filed, whichever is later. The parties may extend the time within which the brief must be filed for 28 days by signed stipulation filed with the Court of Appeals. The Court of Appeals may extend the time on motion. (b) Service. Within the time for filing the appellant's brief, 1 copy must be served on all other parties to the appeal and proof of that service filed with the Court of Appeals and served with the brief.
(2) Appellee's Brief. (a) (b) Appellee's Brief; Filing and Service. The appellee shall file 5 typewritten, xerographic, or printed copies of a brief with the Court of Appeals within
(i)-(ii) [Unchanged.]
(b) Service. Within the time for filing the appellee's brief, 1 copy must be served on all other parties to the appeal and proof of that service must be filed with the Court of Appeals.
(3) (c) Earlier Filing and Service. The time for filing and serving the appellant's or the appellee's brief in a criminal case may be shortened by order of the Court of Appeals on its own motion or for good cause shown on motion of a party showing good cause. (4) (d) Late Filing. Any party in a criminal case falling to timely file and serve a brief required by this rule forfeits the right to oral argument.
(5) (E). Motions. The filing of a motion in a criminal case does not stay the time for filing a brief.
(2) Briefs in Civil Cases. In all civil cases, a briefing schedule order setting the due date of the appellant's brief, the appellee's brief, and any reply brief, together with a date for oral argument, shall be issued by the Court of Appeals as provided in this subrule. (a) Appellant's Brief. Unless an abbreviated briefing schedule is established pursuant to subrule (A)(2)(f), a briefing schedule order shall not require the appellant's brief to be filed on a date earlier than (i) 28 days after the claim of appeal is filed, the order granting leave is certified, or the transcript is filed with the trial court, whichever is later, in a child custody case; or (ii) 56 days after the claim of appeal is filed, the order granting leave is certified, or the transcript is filed with the trial court or tribunal, whichever is later, in all other civil cases. (b) Appellee's Brief and Reply Brief. Unless an abbreviated briefing schedule is established pursuant to subrule (A)(2)(f), the prescribed interval between the date the appellant's brief is served on the appellee and the due date of the appellee's brief shall not be less than 21 days in a child custody case, or less than 42 days in all other civil cases, and the prescribed interval between the date the appellee's brief is served on the appellant and the due date of a reply brief, if any, shall not be less than 21 days in all cases. (c) Filing. The appellant and the appellee shall file 5 typewritten, xerographic, or printed copies of a brief with the Court of Appeals within the time provided in the briefing schedule order (d) Service. Within the time for filing a brief, 1 copy must be served on all other parties to the appeal and proof of that service must be filed with the Court of Appeals. (e) Extensions. In view of the proximity of briefing to oral argument, motions to extend the briefing schedule are disfavored and will be granted only for extraordinarily compelling reasons. (f) Expediting Appeals. The Court of Appeals may, on its own motion or for good cause shown on motion of a party, advance an appeal for hearing and establish an abbreviated briefing schedule. (g) Late Filing. If the appellant falls to file the appellant's brief within the time allowed by the briefing schedule order, the appellee may move to dismiss the appeal or the Court of Appeals may dismiss it on the Courts own motion. If the appellee falls to file a timely answering brief, the Court of Appeals may order the case submitted on the appellant's brief alone. Any party failing to timely file and serve a brief required by this rule forfeits the right to oral argument. (h) Motions. Submission of a motion to exceed the limits on length of briefs or extend the filing time for a brief will not toll the time for compliance with filing requirements. Movants will be expected to meet all filing requirements in the absence of an order granting a waiver. (i) Cross Appeals. If a cross appeal is filed in a case in which a briefing schedule has already been established, a revised briefing schedule shall be issued.
(B)-(F) [Unchanged.]
(G) Reply Briefs. An appellant or a cross appellant may reply to the brief of an appellee or cross appellee within 21 days after service of the brief of the appellee or cross appellee unless a different time has been set pursuant to a briefing schedule order issued under subrule (A)(2). Reply briefs must be confined to rebuttal of the arguments in the appellee's or cross appellee's brief and must be limited to 10 pages, exclusive of tables, indexes, and appendices, and must include a table of contents and an index of authorities. No additional or supplemental briefs may be filed except as provided by subrule (F) or by leave of the Court.
(H)-(I) [Unchanged.]
RULE 7.213. CALENDAR CASES.
(A) [Unchanged.]
(B) Notice of Calendar Cases. Except for those cases in which a briefing schedule order has been issued and an oral argument date already set, A after the briefs of both parties have been filed, 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" at the next available session of the court.
(C)-(E) [Unchanged.]
Staff Comment: The proposed amendments of MCR 7.211, 7.212, and 7.213 were submitted by the Court of Appeals. All relate to a proposed restructuring of the way in which the Court of Appeals briefing schedules in civil cases are managed.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
|------------------------------------------------------| | Publication of this proposal does not mean that the | | Court will issue an order on the subject, nor does | | it imply probable adoption in its present form. | | Timely comments will be substantively considered and | | your assistance is appreciated 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 this proposal may be sent to the Supreme Court Clerk within 60 days after it is published in the Michigan Bar Journal. When submitting a comment, please refer to our file number 97-57.