On November 10, 2016, Michigan Supreme Court Justice McCormack accepted MDTC’s invitation to come to the Board of Directors meeting and answer questions about amicus briefs. Former Chief Justice of the Michigan Supreme Court, Clifford Taylor spoke at the MDTC 2016 Winter Meeting on what the Supreme Court looks for in deciding whether to grant or deny leave to appeal.
Justice McCormack stated that in general, the Michigan Supreme Court appreciates receiving amicus briefs because they tend to present a broader, stepped-back view of the law, rather than focus on the individual facts of the case at hand. She said that an amicus should not bother to waste ink if it is merely reiterating a party’s position. Justice McCormack told the board that the amicus briefs submitted by the MDTC have been thorough, credible, and not a “stretch” position. (So kudos to all our volunteer amicus-brief writers. Keep up the good work. You are doing a fantastic job.)
The Supreme Court rarely, if ever, denies a motion to file an amicus brief if the motion is timely filed. Thus, it behooves the amicus practitioner to timely file the brief. The Michigan Court Rules do not provide a due date for filing an amicus brief at the application stage. However, if the motion and brief are filed before the commissioner is finished reviewing the case and drafting the report, the commissioner will include the amicus arguments in the report. Commissioners may take as much as six months to review an appeal; however, it is better to strive for the 21-day deadline from the date that the answer to the application is filed to ensure review. Amici who consistently file untimely motions and briefs are more likely to have their motions denied.
When asked whether amicus briefs should be submitted at the application stage or only after leave has been granted, Justice McCormack said to definitely submit them at the application stage. She explained that every month, each Justice reviews approximately 200 applications for leave to appeal. The Justices do not receive the actual application briefs but, rather, rely on reports from commissioners who summarize the arguments and the law, and recommend a proposed disposition.
If a commissioner recommends a disposition other than a denial, the case is discussed at a weekly conference. If the commissioner recommends denying leave, and none of the Justices “hold” the case for discussion, the denial order will enter. If a Justice holds a case, then that case is likewise discussed in the weekly conference.
Chief Justice Taylor explained that the Court receives approximately 2,000 applications for leave to appeal each year, but only hears argument on approximately 60 cases either on leave granted or on mini oral argument on the application (MOAA). That means an applicant has about a three percent chance of having his or her appeal heard.
Thus, the importance of properly framing a jurisprudentially significant issue is paramount. Justice McCormack stated that if the issue is significant to the jurisprudence of the state, and if the appellant is having difficulty demonstrating jurisprudential significance, amicus should step in and frame the jurisprudentially significant issue.
Chief Justice Taylor gave an example of proper framing of a jurisprudentially significant issue. The Supreme Court is not concerned with case-specific details pertaining to utilities. However, whether a party can rely on the finalization of a settlement is an issue that would have state-wide impact on the state’s jurisprudence. He gave examples of general categories of issues that would be considered jurisprudentially significant:
• Dual threads of authority in the Court of Appeals
• Court of Appeals misreading or disregarding Supreme Court precedent
• Supreme Court precedent that is inconsistent with statutory language
Chief Justice Taylor provided several tips for applicants to the Supreme Court. He explained that the current Supreme Court is very much a textualist Court. He stated that an appellant should pretend that he or she is arguing to the late United States Supreme Court Justice Scalia. Justice Taylor recommended buying and reading the book, Reading Law, by Scalia and Bryan Gardner. He stated that Justice Zhara frequently asks his clerks what part of Reading Law is implicated in the appeal under review. He recommended having independent eyes review the appellate brief before filing it. He pointed out the importance of reading the MOAA or grant order and doing exactly as the Supreme Court stated.
The MDTC greatly appreciates the time, effort, and advice of Justice McCormack and former Chief Justice Taylor in coming to speak at the Board of Directors meeting and the MDTC 2016 Winter Meeting. The advice provided by them is vitally important to members of the appellate bar. Thank you.