Michigan Supreme Court

[quincy]

Ahhh. I see what you are saying. I guess I just don't hear about those cases where a response is NOT filed.

If a response was not filed prior to the notice date, however, the Justices do not necessarily have to request one at conference, should the case make it that far. They can make a decision based on what is before them.

 

[jci63]

I received Defendants/Appellee Response and opposition to Plaintiff / Appellant's Application for Leave to Appeal today.

3 Questions

1) Can I file a reply brief regarding the arguments in this document.

(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. 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.

2) The docket sheet shows a Notice date of 11-25-08, if I get 21 days to file a reply brief that the proof of service is 11-12-08, that makes the date 12-3-08. Do I have to have this filed on or before 11-25-08?

The notice date is the date in which any response must be filed in order to be heard by the Court.

From Supreme Court website

10/28/2008 77 SCt: Application for Leave to SCt
Supreme Court No. 137568
Notice Date: 11/25/2008
Fee: Paid Check No.:34084
For Party: 1
Filed By Pro Per

3) Can a file a reply brief for each Defendant, (4 defendants in lawsuit) if they file a Defendants/Appellee Response and opposition to Plaintiff / Appellant's Application for Leave to Appeal?

Thanks

jci63

 

[jci63]

Many views......



Please need help.....

 

[quincy]

I am sorry, jci, that I haven't had the opportunity to research this much for you - I may be able to post later tonight - but I didn't want you to think your questions were being ignored.

In the meantime, you may want to check out Supreme Court Processing of Cases and Administrative Matters Disclaimer.

Quite frankly, I have only glanced through this and only think it answers your questions. No guarantees, in other words.

 

[quincy]

Here is what I gather, jci.

You may file a reply brief in response to the appellee's answering brief, but it is not required. Your reply brief is due 21 days after the service of the answering brief, and is limited to 10 pages. So, I too am coming up with the December 3 due date - however I would definitely check with the Court on this, as you do not want to file late. The 25th date is when all answers must be filed by the appellee. Again, check with the Court to verify, and it is always recommended to get the filing done early if possible, as any late filing is not considered.

In your reply brief, you cannot raise any new issue or argument, nor should it be a repeat of your original opening brief (although small snippets of your opening brief may be used for clarification purposes).

The purpose of your response, should you even need to file one, is to respond to any points raised by the appellee's answering brief that you did not address in your opening brief. If you addressed all points in your opening brief, you should not file a response brief.

In addition, you may respond to all answering briefs, should you have more than one filed in response to your original brief. Again, however, you only need to file a response if new points are raised that you did not already address in your opening brief.

If you check out "Michigan Supreme Court appellee reply briefs" and "Michigan Supreme Court appellant reply briefs" online, you can see some of the forms these briefs take. All follow the court rules, but there are variations that are acceptable. I made a note of a couple for you to check - and then totally lost the examples in my mountain of papers here. If I ever locate them, I will post back.


Edit to add: A "nice looking" appellant reply brief can be found at http://courts.michigan.gov/supremecourt/clerk/11-07/131654/131654-index.htm.

 

[Ronin]

Consider mimicking the format of the response if it looks like a properly prepared one.

I agree you should constrain your reply to only answering issues raised in the response not already addressed, or to challenge anything that may be innacurate or misleading. Otherwise a reply is not necessary.

Quincy, is jci63 filing a formal reply brief or merely a reply to appellees response to his application for leave to file? If the Supreme Court grants him leave to file, do they then request briefings on the merits, or do they make their decision based upon what they received prior to granting leave to file? Just comparing notes to my states procedures.

 

[quincy]

I am not sure of all that you are asking, Ronin.

Jci is working on a response to the reply brief submitted by the appellee. This is what must be limited to 10 pages, and it should address only those points that are "new" and not addressed in jci's original application for leave to appeal. The Commissioner assigned to jci's case works from the original application filed, and from all responses to the application (both the appellee and applellant reply briefs), and from the previous court files and appeal files, when preparing his report for the Justices.

All of this is done prior to submitting the application to the Justices for consideration as to whether an order should be issued to grant a leave to appeal or whether other action should be taken. The Justices most often rely on the recommendation made by the Commissioner as to what action should be taken on the application. If they follow the Commissioner's recommended order, then the order automatically enters.

It is the Commissioner's report that is reviewed, in other words, by the Justices. The report is fairly thorough, quoting the issues raised by the appellant, and presenting all supporting information and case cites; it relates all of the facts from the proceedings; it summarizes all arguments made by the parties, and reports on the rulings of the lower courts on each issue argued. Based on his review of all of this, the Commissioner recommends an order that the Court take and he presents this to the Justices along with his report.

Conferences are only scheduled if one or more of the Justices has objected to the Commissioner's recommended order, or if the Commissioner has recommended that there be a conference, or if the Commissioner's recommendation is to grant the leave to appeal.

It is at the conference that the Justices themselves will decide what action to take on the application. They could ask for more review and a greater analysis of the issues or they could place the case on the session calendar for oral arguments to be heard. Oral arguments are heard on only a select few applications. If an application is selected for oral arguments, both parties must then file supplemental briefs. Following oral arguments, the Court will once again consider the application for leave to appeal and make its determination as to whether an appeal will be granted or whether the lower court's decision will stand.

Only one-third of all applications ever make it to the conference stage, fewer still will be selected for oral argument, and the fewest of all will be granted a leave to appeal. Most applications are denied, based on the Commissioner's recommendation. The lower court's decision will stand.

Is that what you wanted to know? Is this different than it is in your state?

 

[Ronin]

Thanks.

In Texas a Petition for Review is filed in the state supreme court to appeal a court of appeals ruling. A response may or may not be filed. However, the court will not grant a petition for review without first requesting a response if one has not been filed.

The petition initially goes through a conveyor type review process by the justices and their staff. Unless one of the justices affirmatively removes it from the 'conveyor' within 31 days, it is automatically denied. A petition may be refused in rare cases, which effectively bestows supreme court precedential value to the court of appeals opinion.

Beyond that the internal procedures for reviewing and disposing of cases appear to be fundamentally the same as in Michigan.

 

[quincy]

So, some differences exist between Michigan and Texas. But the odds of a leave to appeal being granted by the state Supreme Courts are probably about the same.

 

[Ronin]

Yeah, the odds are pretty much the same.

Even so, the statistics are deceiving if they imply fairness. Some types of cases have closer to a zero probability of being heard, regardless of merit.

Given supreme courts have an absolute discretionary right to cherry pick their cases, and justices being the politicians they are, an awful lot of cases are denied review for the wrong reasons.

 

[quincy]

I am not entirely sure that what you say is true, Ronin, however I'll accept your analysis, only for a lack of desire to research the matter.

 

[jci63]

Received another Defendant/Appellees opposing brief to plaintiff/appellant's application for leave to appeal, with a proof of service November 18, 2008.

Time to reply = Date: 12/9/2008 (Tuesday)

This makes 4 defendants and 2 attorneys that have replied to my application for leave to appeal.

2 questions

Question #1

This last brief stated under STATEMENT OF THE BASIS OF JURISDICTION "It is conceded that the Application for Leave to Appeal was timely made, however the applicant failed to provide a statement concerning appellant jurisdiction identifying the statute, court rule or court decision believerd to confer jurisdiction."

Please explain in laymans terms



Question #2

Does having more Defendants/Appellees file answer my brief, increase the odds of being heard by the Supreme Court?

 

[quincy]

First, the number of reply briefs will neither increase nor decrease the odds of the Supreme Court granting your leave to appeal.

Second, the basis of jurisdiction is covered under Chapter 7 Supreme Court. You can check it out at this link:

cache.slQGqv_VGqoJ:coa.courts.mi.gov/rules/documents/1Chapter7AppellateRules.pdf Michigan court rule 7.203 (A) - Google Search

or

look up Rule 7.302 in Michigan's Chapter 7 Supreme Court.

The clerk generally notifies you of anything missing from your application, allowing you time for a correction of any defects, so I am not sure what the reply brief is concerned with here, although I am assuming the appellee's reply brief is a motion to dismiss, and these are the grounds for dismissal? The Supreme Court, however, rarely dismisses an application without review.

Jurisdiction is conferred on the Court by Michigan Court Rule 7.302.

*I transposed the numbers of the Rule - it is 7.302 not 7.203. Sorry. The link, however, will get you where you need to go.

 

[quincy]

I was trying to edit my last post, to add information, but for some reason I couldn't. Hmmm.

Anyway, jurisdiction is, basically, a court's power to issue a decree, decide a case, or review, revise and/or reverse a lower court's decision. Again, this power is conferred upon the court by Michigan's Chapter 7 Court Rule 7.302

If you need further explanation, post back.

 

[jci63]

I did not get a defective letter from the Supreme Court, so does this mean everything with
jurisdiction issue is o.k.?


If not, how do I fix this issue?