Administrative Order 2004-5

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October 5, 2004

ADM File Nos. 2002-34
2002-44

Administrative Order No. 2004-5

Expedited Summary Disposition
Docket in the Court of Appeals

On order of the Court, notice of the proposed expedited docket 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
proposal is adopted for a two-year period, effective January 1, 2005.

1. Applicability. This administrative order applies to appeals filed on or
after January 1, 2005, arising solely from orders granting or denying
motions for summary disposition under MCR 2.116. These appeals are
to be placed on an expedited appeal track under which they shall
generally be briefed, argued, and disposed of within six months of
filing. A motion to remove is required to divert such appeals to the
standard appeal track.
2. Time Requirements. Appeals by right or by leave in cases covered by
this order must be taken within the time stated in MCR 7.204 or MCR
7.205. Claims of cross-appeal must be filed within 14 days after the
claim of appeal is filed with the Court of Appeals or served on the
cross-appellant, whichever is later, or within 14 days after the clerk
certifies the order granting leave to appeal.
3. Trial Court Orders on Motions for Summary Disposition. If the trial
court concludes that summary disposition is warranted under MCR
2.116(C), the court shall render judgment without delay in an order that
specifies the subsection of MCR 2.116(C) under which the judgment is
entered.
4. Claim of Appeal - Form of Filing. With the following exceptions, a
claim of appeal filed under this order shall conform in all respects with
the requirements of MCR 7.204.
(A) A docketing statement will not be required as long as the case
proceeds on the summary disposition track.
(B) When the claim of appeal is filed, it shall be accompanied by:
(1) evidence that the transcript of the hearing(s) on the motion for
summary disposition has been ordered, or
(2) a statement that there is no record to transcribe, or
(3) a statement that the transcript has been waived.
Failure to file one of the above three documents with the
claim of appeal will [not] toll subsequent filing deadlines
for transcripts or briefs. Sustained failure to provide the required
documentation may result in dismissal of the appeal under MCR
7.201(B)(3), as long as the Court of Appeals provides a minimum 7-
day warning.
5. Application for Leave Form of Filing. An application for leave to
appeal filed under this administrative order shall conform in all
pertinent respects with the requirements of MCR 7.205.
6. Claim of Cross-Appeal. A claim of cross-appeal filed under this
administrative order shall conform in all pertinent respects with the
requirements of MCR 7.207.
7. Removal from Summary Disposition Track. A party may file a motion
to remove the case from the summary disposition track to the standard
track.
(A) Time to File. Motions to remove by the appellant or the cross-
appellant must be filed with the claim of appeal or claim of cross-
appeal, respectively, or within 7 days after the date of certification
of an order granting application for leave to appeal. Motions to
remove by the appellee or cross-appellee must be filed no later than
the time for filing of the appellee's brief.
(B) Form. Motions to remove shall concisely state the basis for
removal, and must be in the form prescribed by the Court of
Appeals. This form shall include a statement advising whether the
appellee is expected to oppose the motion.
(C) Answer. An answer to a motion to remove must be filed within 7
days after service of the motion. The answer should state whether
the appellee is expected to file a claim of cross-appeal.
(D) Disposition. Within 14 days after the filing of the motion to
remove, the Court of Appeals shall issue an order disposing of the
motion and setting the time for further filings in the case. The time
for further filings in the case will commence on the date of
certification of the order on the motion.
(E) Docketing Statement. If the case is removed from the summary
disposition track, a docketing statement must be filed within 14
days after the date of certification of the order on the motion.
(F) The Court of Appeals may remove a case from the summary
disposition track at any time, on its own motion, if it appears to the
Court that the case is not an appropriate candidate for processing
under this administrative order.
(G) Effect of Removal. If the Court of Appeals removes a case from
the summary disposition track, the parties are entitled to file briefs
in accordance with the time and page limitations set forth in MCR
7.212. The time for filing the briefs commences from the date of
certification of the order removing the case from the summary
disposition docket.
8. Transcript Production for Purposes of Appeal.
(A) Appellant.
(1) The appellant may waive the transcript. See section 4(B)(3)
above.
(2) If the appellant desires the transcript for the appeal, the
appellant must order the transcript before or
contemporaneously with the filing of the claim of appeal.
(3) If the transcript is not timely filed, the appellant must file one
of the following motions with the Court of Appeals within 7
days after the transcript is due:
(a) a motion for an order for the court reporter or recorder to
show cause, or
(b) a motion to extend time to file the transcript.
(4) The time for filing the appellant's brief will be tolled by the
timely filing of one of the above motions. The order disposing
of such motion shall state the time for filing the appellant's
brief.
(5) If the ordered transcript is not timely filed, and if the appellant
fails to file either of the above motions within the time
prescribed, the time for filing the brief will commence on the
date the transcript was due. In such event, the appellant's brief
shall be filed within 56 days after the claim of appeal was filed
or 28 days after certification of the order granting leave to
appeal.
(B) Appellee.
(1) The appellee may order the transcript within 14 days after
service of the claim of appeal and notice that the appellant has
waived the transcript.
(2) The appellee's transcript order will not affect the time for
filing the appellant's brief.
(3) If the transcript is not timely filed, the appellee must file one of
the following motions with the Court of Appeals within 7 days
after the transcript is due:
(a) a motion for an order for the court reporter or recorder to
show cause, or
(b) a motion to extend the time to file the transcript.
(4) The time for filing the appellee's brief will be tolled by the
timely filing of one of the above motions. The order disposing
of such motion shall state the time for filing the appellee's
brief.
(5) If the ordered transcript is not timely filed, and if the appellee
fails to file either of the above motions within the time
prescribed, the time for filing the brief will commence on the
date the transcript was due.
(C) Court Reporter. The court reporter or recorder shall file the
transcript with the trial court or tribunal within 28 days after it is
ordered by either the appellant or the appellee. The court reporter
or recorder shall conform in all other respects with the
requirements of MCR 7.210.
(D) Transcript Fee. The court reporter or recorder shall be entitled to
the sum of $3.00 per original page and 50 cents per page for each
copy for transcripts ordered and timely filed in appeals processed
under the expedited docket. If the court reporter or recorder does
not timely file the transcript, the rate will remain $1.75 per original
page and 30 cents per page for each transcript, as set by MCL
600.2543.
9. Briefs on Appeal.
(A) With the following exceptions, the parties' briefs shall conform to
the requirements of MCR 7.212.
(B) Time For Filing.
(1) The appellant's brief shall be filed within 28 days after the
claim of appeal is filed, the order granting leave is certified, or
the timely ordered transcript is timely filed with the trial court,
whichever is later, or as ordered by the Court. In appeals by
leave, the appellant may rely on the application for leave to
appeal rather than filing a separate brief by filing 5 copies of
the application for leave to appeal with a cover letter indicating
that the appellant is relying on the application in lieu of filing a
brief on appeal.
(2) The appellee's brief shall be filed within 21 days after the
appellant's brief is served on the appellee, or as ordered by the
Court.
(3) Time for filing any party's brief may be extended for 14 days
on motion for good cause shown. If the motion is filed by the
appellant within the original 28-day brief filing period, the
motion will toll the time for any sanctions for untimely briefs.
A motion may include a statement from opposing counsel that
counsel does not oppose the 14-day extension. A motion to
extend the time for filing a brief will be submitted for
disposition forthwith; opposing counsel need not file an
answer.
(4) If the appellant's brief is not filed within 7 days after the date
due, the Court of Appeals shall issue an order assessing costs
and warning the appellant that the case will be dismissed if the
brief is not filed within 14 days after the deadline. If the brief
is not filed within that 14-day period, the Court of Appeals
shall issue an order that dismisses the appeal and that may
assess additional costs.
(C) Length and Form. Briefs filed under this administrative order are
limited to 35 pages, double-spaced, exclusive of tables, indexes,
and appendices.
(1) At the time each brief is filed, the filing party must provide the
Court of Appeals with that party's trial court summary
disposition motion or response, brief, and appendices. Failure
to file these documents at the time of filing the appellant's
brief will not extend the time to file the appellee's brief,
however.
(2) The appellant may wish to include a copy of the transcript (if
any) if it was completed after the lower court file was
transmitted to the Court of Appeals.
(D) Reply briefs may be filed within 14 days of the filing of appellee's
brief and are limited to 5 pages, double-spaced, exclusive of tables,
indexes, and appendices.
10. Record on Appeal. The Court of Appeals shall request the record on
appeal from the trial court or tribunal clerk as soon as jurisdiction has
been confirmed and material filing deficiencies have been corrected.
The trial court or tribunal clerk shall transmit the record as directed in
MCR 7.210(G).
11. Notice of Cases. Within 7 days after the filing of the appellee's brief,
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" on the summary disposition track.
12. Decision of the Court. The opinion or order of the panel shall be
issued no later than 35 days after submission of the case to, or oral
argument before, a panel of judges for final disposition.
This order will remain in effect for two years from the date of its implementation,
during which time the Court of Appeals Delay Reduction Work Group will
monitor the expedited docket program. If, at any time during that monitoring
process, it becomes apparent to the work group that procedural aspects of the
program need to be modified, the group is encouraged to seek authorization from
this Court to implement modifications. The work group will provide this Court
with written updates on the pilot program before the one-year and eighteen-month
anniversaries of the program's implementation. At the end of the two-year pilot
period, this Court will evaluate expedited processing of summary disposition
appeals to determine whether the procedure will be discontinued, changed, or
continued.
[ ]Staff Comment:[ ] This is a new procedure requested by
the Court of Appeals for the processing of appeals from orders granting or
denying summary disposition. The new procedure applies to appeals filed after
January 1, 2005. The procedure will be in effect for a two-year pilot period with
ongoing monitoring by the delay reduction work group. That group will provide
updates to the Court before the one-year and eighteen-month anniversaries of the
pilot period. The group is authorized, during the two-year pilot period, to seek
from the Court modification of the expedited docket procedures.
The transcript rate is authorized by statute. 2004 PA 328.
The Court of Appeals offered the following explanation of the expedited docket
procedure:
The Court of Appeals estimates that summary disposition appeals make up about
50% of the Court's nonpriority civil cases. The procedure proposed by the Court's
Case Management Work Group and announced in this administrative order is
structured to facilitate disposition of eligible appeals within about 180 days after
filing with the Court of Appeals. The work group's report can be accessed on the
Court of Appeals website at
http://courtofappeals.mijud.net/resources/specialproj.htm.
The procedure announced here is intended to apply to appeals arising solely
from orders on motions for summary disposition. Orders that reference other
issues between the parties will not be eligible for this track. If an eligible appeal
is deemed to be inappropriate for the expedited docket, the Court can remove it,
either on its own motion or on motion of one or both of the parties. Such motions
must be in the form prescribed by the Court of Appeals. See
http://courtofappeals.mijud.net/resources/forms.htm
The procedure encourages parties to evaluate whether a transcript of hearing(s)
on the motion would be helpful on appeal. If little was stated on the record, or
there is nothing to be gained from the transcript, it can be waived. In such cases,
the appellant's brief (accompanied by the appellant's trial court motion, brief, and
appendices) will be due within 28 days after filing the claim of appeal or entry of
an order granting leave to appeal. If the transcript is ordered, it will be due within
28 days, with the appellant's brief due 28 days later. The appellee's brief
(accompanied by its trial court motion, brief, and appendices) will be due 21 days
from service of the appellant's brief. Motions to extend the time for filing briefs
will be granted only on good cause shown and, generally, only for a maximum of
14 days. As a general matter, good cause will be limited to unexpected events that
directly affect the ability to timely file the brief. When the motion is premised on
work load considerations, at a minimum the motion should identify the cases and
the courts in which filing deadlines are converging and specify the least amount of
time that would be required to file the brief. Once briefing has been completed,
the case will be referred to the Court's research attorneys for an expedited review
and it will then be submitted to a panel of judges for disposition.
The staff comment is not an authoritative construction by the Court.