Appellate Practice Report

MDTC Appellate Practice Section

By: Phillip J. DeRosier, Dickinson Wright PLLC, and Trent B. Collier, Collins Einhorn Farrell P.C.

pderosier@dickinsonwright.com, trent.collier@ceflawyers.com

Appellate Practice Report

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Superintending Control in Michgan's Appellate Courts

Michigan's appellate courts can exercise superintending control over lower courts. Although it's rare for an appellate court to do so, superintending control can be an effective and even necessary remedy under the right circumstances. To determine whether superintending control is a possible remedy, however, it's important to understand the difference between superintending control in the Michigan Supreme Court and in the Court of Appeals.

In the Michigan Supreme Court

Article VI of the Michigan Constitution establishes the Michigan Supreme Court's authority to entertain requests for superintending control:

The supreme court shall have general superintending control over all courts; power to issue, hear and determine prerogative and remedial writs; and appellate jurisdiction as provided by rules of the supreme court. The supreme court shall not have the power to remove a judge.[[1]]

The power of superintending control is "separate, independent and distinct from [the Court's] original jurisdiction and appellate powers…."[2] This superintending authority has "great breadth":

The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise. As new instances of these occur, it will be found able to cope with them. Moreover, if required, the tribunals having authority to exercise it will, by virtue of it, possess the power to invent, frame, and formulate new and additional means, writs, and processes whereby it may be exerted. This power is not limited by forms of procedure or by the writ used for its exercise. Furthermore, it is directed primarily to inferior tribunals, and its relation to litigants is only incidental.[[3]]

Though its scope is broad, superintending control is available only when an "application for leave to appeal cannot be filed."[4] In other words, if an application for leave is an option, superintending control isn't.

Superintending-control procedures in the Michigan Supreme Court begin with Michigan Court Rule 7.306. Parties invoke the Court's superintending-control authority by filing a complaint. Parties must submit a brief with their complaint, along with a proof of service and the filing fee.[5] The responding party's answer is due in 21 days, and the petitioner can file a reply brief up to 21 days after receiving the answer.

Michigan Court Rule 7.306(H) lists various actions that the Court may take in response to a complaint for a writ of superintending control. The Court may "set the case for argument as on leave granted, grant or deny the relief requested, or provide other relief that it deems appropriate, including an order to show cause why the relief sought in the complaint should not be granted."[6]

In the Court of Appeals

The Court of Appeals' authority to grant superintending control is more limited than the Michigan Supreme Court's authority.[7] The Court of Appeals' superintending control authority "has nothing to do with the general supervisory superintending control over all courts given to the Supreme Court by art. 6, § 4 of the 1963 Constitution or the supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the Supreme Court …."[8]

The Michigan Supreme Court recognized the more limited nature of the Court of Appeals' superintending control authority when it drafted Michigan Court Rule 7.203. This rule states that the Court of Appeals may exercise "superintending control over a lower court or a tribunal immediately below it arising out of an action or proceeding which, when concluded, would result in an order appealable to the Court of Appeals …."[9]

The bolded language has important implications. It means that the Court of Appeals can exercise superintending control only "in an actual case."[10] In other words, the Court of Appeals doesn't exercise superintending control to oversee Michigan's judiciary but to correct specific errors in specific cases. This distinction explains Lapeer County Clerk, where the Michigan Supreme Court held that the Court of Appeals "lacked jurisdiction to issue an order of superintending control to the circuit court regarding its plan for the implementation of the family division."[11]

Although superintending control in the Court of Appeals serves a different purpose than in the Supreme Court, it looks much the same as a procedural matter. Michigan Court Rule 7.206 states that the rules governing superintending control in the Supreme Court also apply to the Court of Appeals. So a party seeking superintending control in the Court of Appeals should file a complaint, accompanying brief, and proof of service as Michigan Court Rule 7.306 directs.

Citing Unpublished Opinions

While only published decisions have precedential value, it may sometimes be appropriate to cite an unpublished opinion – such as if there are no applicable published decisions, or if an unpublished opinion contains a particularly helpful discussion of an issue. The practice of citing unpublished opinions differs depending on whether you are in the Sixth Circuit or the Michigan Supreme Court or Court of Appeals.

Sixth Circuit

The Sixth Circuit's local rules broadly permit the citation of "any unpublished opinion, order, judgment, or other written disposition."[12] But if such a decision is "not available in a publicly accessible electronic database, the party must file and serve a copy as an addendum to the brief or other paper in which it is cited."[13]

Michigan Supreme Court and Court of Appeals

The rule governing the citation of unpublished opinions in the Michigan Supreme Court and Court of Appeals is more restrictive. Until recently, there was no express limitation on citing unpublished Court of Appeals' opinions. Effective March 23, 2016, however, the Supreme Court amended MCR 7.215(C) to clarify the circumstances under which unpublished opinions may be cited.

The rule now provides that "[u]npublished opinions should not be cited for propositions of law for which there is published authority."[14] In addition, "[i]f a party cites an unpublished opinion, the party shall explain the reason for citing it and how it is relevant to the issues presented."[15] The Staff Comment provides examples of when "an unpublished [opinion] may be cited," such as "if there is no published authority on a given legal proposition or if it is necessary to demonstrate a conflict in interpretation of the law."

As under prior practice, "[a] party who cites an unpublished opinion must provide a copy of the opinion to the court and to opposing parties with the brief or other paper in which the citation appears."[16]

Submitting Supplemental Authority

As there can often be a delay of several months between the time that briefs are filed and oral argument is held, there are times when a party may want to supplement the authorities in its brief with a decision that came out after briefing was completed. The Michigan Supreme Court, Court of Appeals, and Sixth Circuit all have specific procedures for doing just that.

Michigan Supreme Court and Court of Appeals

Submitting supplemental authority in the Michigan Supreme Court and Court of Appeals is governed by MCR 7.212(F).[17] The rule explains that without leave of court, a party may submit a one-page "communication" titled "supplemental authority," subject to certain conditions. First, it must be for the purpose of "call[ing] the court's attention to new authority released after the party filed its brief."[18] Second, a supplemental authority "may not raise new issues."[19] Third, it "may only discuss how the new authority applies to the case, and may not repeat arguments or authorities contained in the party's brief."[20] Finally, a supplemental authority "may not cite unpublished opinions."[21]

As further explained in the Court of Appeals' Internal Operating Procedures (IOPs):

Such a filing may only cite and discuss new published authority released subsequent to the date the party filed its last brief or supplemental authority. New issues may not be raised in a supplemental authority. The body of the supplemental authority cannot exceed one page. The caption may be on a preceding page and the signature block alone may be on a subsequent page. But the text of the supplemental authority cannot exceed one page.[[22]]

Should a party seek to exceed the one-page limit or cite newly-discovered authority that was released before the party filed its brief, then a motion is required:

Unless accompanied by a motion, a supplemental authority will be returned if it (1) fails to comply with the requirement that it not exceed one page, (2) cites other than new published authority.[[23]]

Finally, the IOPs provide one last word of caution. A supplemental authority must include all new authorities that the party wishes to raise. In other words, multiple supplemental authorities are not permitted, unless "a party files a supplemental authority after the filing of the brief, and then another new case is released after filing of the first supplemental authority."[24] In that case, "the subsequent supplemental authority will be accepted."[25]

Note that neither MCR 7.212(F) nor the IOP specifically provide for a response to a supplemental-authority filing. Doing so, however, is simply a matter of the opposing party filing its own "supplemental authority" addressing the new case.

Sixth Circuit

Supplemental authority filings in the Sixth Circuit are governed by Rule 28(j) of the Federal Rules of Appellate Procedure. The rule provides that a party may send a "letter to the circuit court clerk" advising the court of any "pertinent and significant authorities [that] come to a party's attention after the party's brief has been filed—or after oral argument but before decision." Thus, a party is not limited to decisions issued after the party's brief has been filed. The letter must "state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally." The "body of the letter must not exceed 350 words." A party wishing to respond must do so "promptly" in a letter that it is "similarly limited."



[1] Const 1963, art 6, § 4.

[2] Matter of Probert, 411 Mich 210, 229-30; 308 NW2d 773 (1981), citing In re Huff, 352 Mich 402; 91 NW2d 613 (1958).

[3] Probert, 411 Mich at 229-30 (emphasis added).

[4] MCR 7.306.

[5] Id.

[6] Id.

[7] Lapeer County Clerk v Lapeer Circuit Judges, 465 Mich 559, 567-568; 640 NW2d 567 (2002).

[8] Id. at 569.

[9] MCR 7.203(C) (emphasis added).

[10] Lapeer County Clerk, 465 Mich at 569.

[11] Id. at 574.

[12] 6th Cir R 32.1(a).

[13] 6th Cir R 32.1(a).

[14] MCR 7.215(C)(1).

[15] Id.

[16] Id.

[17]MCR 7.302(F), which governs supplemental authority in the Supreme Court, provides that "a party may file a supplemental authority as provided in MCR 7.212(F)."

[18] MCR 7.212(F).

[19] MCR 7.212(F)(1).

[20] MCR 7.212(F)(2).

[21] MCR 7.212(F)(3).

[22] IOP 7.212(F)-1 (emphasis in original).

[23] Id.

[24] Id. (emphasis in original).

[25] Id.

Categories: Volume 7 #1

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