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MICHIGAN PEREMPTORY ORDERS: A SUPREME ODDITY GARY M.

MAVEAL

I. INTRODUCTION ................................................................................... 418 II. THE HISTORY OF THE PEREMPTORY ORDER RULE ........................... 420 A. Summary Decision Practices Before Modern Procedural Reform. .................................................... 422 1. Precursors of Peremptory Orders: Writs of Mandamus and Prohibition ........................................................................ 422 2. 1931-33 Rule Origins: Summary Writs on Applications ...... 424 B. The Reforms of the Revised Judicature Act and the 1963 Court Rules. .................................................................................... 428 1. The Studies for a Court of Appeals and Wholly Discretionary Supreme Court Review ...................................... 428 2. GCR 1963, 806.5 Authorization for Peremptory Orders in Emergencies ............................................................. 434 C. The Courts 1964 Rule for Summary Disposition on Any Application .............................................................................. 436 1. The 1963 Constitution: A Court of Appeals and Criminal Appeals as of Right ................................................... 436 2. The 1964 Emergency Amendments for Peremptory Order on any Application......................................................... 438 III. THE PREVALENCE OF PEREMPTORY ORDERS IN THE RECENT DECADES ................................................................................. 443 A. The Mid-1970s: Expanded Use of Peremptory Orders and Per Curiam Opinions ............................................................... 444 B. Increasingly Common Peremptory Rulings over Dissents ......... 452 IV. MICHIGANS PEREMPTORY RULE AND ORDERS UNIQUE AMONG THE STATES.............................................................................. 456

Professor of Law and Director of Faculty Research & Development, University of Detroit Mercy School of Law. B.A., 1977, Wayne State University; J.D., 1981, University of Detroit. I would like to thank Prof. Carol A. Parker, Associate Dean for Finance and Administration at the University of New Mexico School of Law, and Ann M. Byrne, of Bremer & Nelson LLP, in Grand Rapids, for their insights upon reviewing an early draft of this article. Their suggestions were invaluable. I also had the able contributions of student research assistants on this project over the past four years: Melissa Stamkos (J.D./LL.B. 2010), now of the New York Bar, Alia Nassar (J.D. 2011, now of the Michigan bar), and my current assistant, Laura Gibson, who will graduate this academic year.

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V. CRITIQUE - MICHIGANS RULE AND PRACTICES ARE UNWARRANTED DEPARTURES FROM NORMS FOR STATE SUPREME COURTS ................................................................................. 464 VI. CONCLUSION ................................................................................... 474 APPENDIX .............................................................................................. 475 I. INTRODUCTION Michigan Supreme Court Rule 7.302(H)(1) authorizes summary affirmance or reversal of the court of appeals upon an application for leave to appeal.1 The rule allows the justices to forego the custom of full briefing after granting leave before deciding questions presented to it.2 The frequent use of this peremptory order rule to resolve important legal issues on applications has proven controversial, especially in cases in which one or more of the justices dissent from the summary reversal or affirmance.3 In other states, high courts rarely reach the merits of a question presented in passing on an application for leave to appeal.4 The prevailing custom elsewhere is for the supreme court to vote first on the application for review; if granted, full briefing, oral arguments, and deliberation inform subsequent decision on the merits.5 The preliminary inquiry of whether to hear a case is a critical aspect of judicial administration: is the question presented significant enough to warrant the expense and delay of a second appeal? This core screening function demands a supreme court to use selectivity and restraint in exercising the power of discretionary review. Our supreme court followed this practice throughout most of the twentieth century.6 If the court granted an application for leave to appeal, the parties fully briefed the question presented.7 This deliberative custom was tempered by allowing expedited rulings in cases of emergency or where a partys right to immediate relief is clear, e.g., as in mandamus.8 In 1964, in anticipation of the opening of the Michigan Court of Appeals, the Supreme Court crafted a rule that it might summarily affirm
1. MICH. SUP. CT. R. 7.302(H)(1) (2010). 2. Id. 3. See infra note 358 and accompanying text. 4. See, e.g., People v. Strohl, 458 N.E.2d 1305 (Ill. 1984); In re Sean X, 473 N.E.2d 40 (N.Y. Ct. App. 1984). 5. See material appended to this Article. 6. See infra Part II.A. 7. See infra note 70 and accompanying text. 8. See infra note 81 and accompanying text.

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or reverse any decision of that new court after a review of an application for leave to appealeven when no emergency existed.9 As will be seen, Michigans 1964 peremptory order rule melded rules drawn for mandamus and emergency cases into a blanket authorization to rule summarily on the merits of any application to review the new court of appeals.10 This Article traces the history of the peremptory order rule change and its use since it was enacted. Part II reports the origin and evolution of the current rule, MCR 7.302(H)(1), to the former practice of summary grant of writs of mandamus.11 It reviews the study that informed both the Revised Judicature Act of 1961 and the General Court Rules of 1963.12 That report surveyed practices in the states with and without intermediate courts of appeals as well as our own Supreme Courts work.13 It raised a central concern that Michigans Supreme Court was overburdened with applications for leave to appeal and that it was trying to do too much in reviewing them with limited resources.14 The reports chief recommendations were use of court commissioners and establishing a court of appeals.15 Examining the role and structure of an intermediate court, the study concluded that its success hinged on that new court being the principal court for correcting errors.16 It warned that double appealsreview of rulings of a new court of appealswere a serious hazard and that the delay and expense of successive review could only be justified when needed to settle important questions of state law or to correct a miscarriage of justice.17 Disregarding this study and advice, the supreme court engineered rule changes in 1964 authorizing peremptory rulings on any applicationeven when no emergency existed.18 Part III details how the peremptory order rule has been transformed into a power to summarily rule upon any application.19 It documents the courts acknowledgment of more aggressive use of the power beginning in 1976.20 Under their internal policy adopted in 1983, the justices agreed
9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. See infra Part II.C. See infra Part II.C. See generally infra Part II. See generally infra Part II. See infra note 90 and accompanying text. See generally infra Part II.B.1. See generally infra Part II.B.1. See generally infra Part II.B.1. See generally infra Part II.B.1. See generally infra Part II.C.2. Infra Part III. Infra Part III.

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that five votes (of their seven) were required to issue a peremptory order.21 The court changed the policy in 2003 to effectively allow a simple majority of four to summarily enter final decisions on applications.22 In practice, the court frequently used the peremptory order to summarily affirm or reverse judgments of the court of appeals by perfunctory order over objections of other justices.23 This Part also reviews the implementation of mini-oral arguments on applications, which often serve as a prelude to peremptory orders.24 Part IV surveys rules and practices of other states with intermediate courts of appeal. The Michigan Supreme Courts power to issue summary rulings on applications in run-of-the-mill cases is unique.25 Unlike Michigan, nearly all states rules provide only for granting or denying review of applications for leave to appeal.26 Michigan is the only high court in the United States that regularly disposes of requests for a discretionary appeal in non-emergency cases by ruling on the merits of the question presented.27 Part V is a critique of the courts rule and practices under it.28 It argues that they are extreme departures from the norms of state supreme courts and reflect poorly on the court. It concludes with a recommendation that the supreme court review its practices under M.C.R. 7.302(H)(1), invite the bars input and, at a minimum, (1) amend the rule to refer to such orders as summary, rather than peremptory and (2) restrict their use to cases presenting bona fide emergencies or where the Justices unanimously support summary disposition.29 II. THE HISTORY OF THE PEREMPTORY ORDER RULE The Michigan Supreme Courts current rule on disposition of applications, MCR 7.302(H)(1), authorizes entry of a final decision or a peremptory order: The Court may grant or deny the application, enter a final decision, or issue a peremptory order. There is no oral argument on applications unless ordered by the Court. The clerk shall issue
21. 22. 23. 24. 25. 26. 27. 28. 29. See infra note 233 and accompanying text. See infra note 258 and accompanying text. Infra Part III.B. Infra Part III.B. See infra Part IV. See infra note 265and accompanying text. See generally infra Part IV. See infra Part V. MICH. SUP. CT. R. 7.302(H)(1) (2010).

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the order entered and mail copies to the parties and to the Court of Appeals clerk.30 A typical peremptory order is a terse sentence of affirmance or reversal in lieu of granting the application; it does not specify the issues in the case or provide any reasoning.31 Peremptory dispositions are often referred to as back-of-the-book orders because they are found in the back pages of Michigan Reports. All orders on applications for leave to appealwhether grant, denial, or peremptory orderare published after opinions from the courts docket of calendar cases.32 Peremptory is an odd word to describe a high courts action on an application asking its permission for a discretionary appeal. The word connotes to laymen33 and lawyers34 a dismissive command cutting off debate as unwarranted or futile. Michigan is the only state to use the word in rules or statutes on discretionary appeals; most states rules recognize that grant or denial of an application affords a supreme court sufficient and prudent choices in most cases.35 The history of the peremptory order rule is somewhat tortuous, but its origins can be traced precisely to the Michigan Court Rules of 1931 and 1933 on emergency applications for leave to appeal.36 The drafters of the General Court Rules of 1963 carried forward similar provisions.37

30. Id. 31. The orders typically take the form of one-sentence statements resolving the issue without stating facts or detailing the precise issue presented. See Ann M. Byrne, Peremptorily Deciding State Constitutional Law Issues in Michigan: Cruel or Unusual Decision Making? 11 T.M. COOLEY L. REV. 213, 213 n.4 (1994) (critique of two such orders in criminal cases from 1993). 32. Beginning in 1971 with volume 383, each issue of Michigan Reports tallied the numbers of applications granted or denied in that portion of the term. See generally 383 Mich. 751 (1971) to 411 Mich. 751 (1981). While these statistics did not accurately capture all actions on applications, it is clear that the overwhelming majority of applications were granted or denied outright. Id. The practice of reporting the total number of applications granted or denied ended in 1981 with volume 411. Id. 33. The words common meanings are: 1. putting an end to all debate or action; 2. not allowing contradiction or refusal; imperative; 3. having the nature of or expressing a command; urgent; and 4. offensively self-assured; dictatorial. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 1305 (4th ed. 2006). 34. The words legal definitions are equally dismissive: 1. final, absolute; conclusive; incontrovertible; 2. not requiring any shown cause; arbitrary. BLACKS LAW DICTIONARY 1251 (9th ed. 2009). 35. See e.g., ILL. S. CT. R. 315. 36. MICHIGAN COURT RULES ANNOTATED 122-24 (1931); KELLY S. SEARL, THE 1933 MICHIGAN COURT RULES ANNOTATED 387-91 (4th ed. 1933). 37. MICHIGAN GENERAL COURT RULES OF 1963 AND THE REVISED JUDICATURE ACT 1961 (1962).

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Yet the supreme court appropriated a blanket peremptory power for all applications just before the court of appeals began operations in 1965.38 A. Summary Decision Practices Before Modern Procedural Reform 1. Precursors of Peremptory Orders: Writs of Mandamus and Prohibition Supreme court review in Michigan is strictly statutory, but was originally modeled on the English common law writ system.39 The customary means for reviewing a trial courts judgment at law was a writ of error from the high court.40 The writ of error issued upon a pleading to the supreme court in a second proceeding to examine a lower court record for legal error.41 The court long had jurisdiction to issue writs of error, habeas corpus, and the other original and remedial writs.42 Throughout most of the twentieth century, before Michigan established its court of appeals, review by our supreme court was nearly exclusively by discretionary application.43 Criminal defendants could not appeal their convictions as of right and parties to civil actions could do so only if the judgment exceeded $50044 or had invalidated a state law as unconstitutional.45 Rather than a right of appeal, the former practice invited review under the common law system. Writs of error and extraordinary writs were the primary means to review civil and criminal judgments or to challenge conduct by other public officials.46 In addition, bills of review
38. Infra Part II.B.2 39. Michigans Constitution has authorized the supreme court to issue writs of error since at least 1851. The history and function of the writ of error is discussed in Jones v. Eastern Michigan Motorbuses, 387 Mich. 619 (1939). 40. Id. 41. Id. 42. MICH. COMP. LAWS ANN. 600.217 (West 2012). The statute contains the essence of the language of the 1851 enactment on the supreme courts power to hear writs. 1851 Mich. Pub. Acts 106. 43. Maurice Kelman, Case Selection by the Michigan Supreme Court: The Numerology of Choice, 1992 DET. C. L. REV. 1, 2 (1992); Robert A. Kagan, The Evolution of State Supreme Courts, 76 MICH. L. REV. 961, 977-78 n.40 (1978). 44. 1917 Mich. Pub. Acts 347. See Kagan, supra note 43, at 978 (tracing changes in Michigan Supreme Courts mandatory appellate jurisdiction); Kelman, supra note 43, at 6-8 (detailing shameful twentieth century tradition of granting appeal as of right to losers of civil judgments of $501 while relegating those convicted of serious felonies to a wholly discretionary appeal). 45. 1923 Mich. Pub. Acts 247. 46. CITIZENS RESEARCH COUNCIL OF MICH., A COMPARATIVE ANALYSIS OF THE MICHIGAN CONSTITUTION vii 8 (1961).

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in equity and writs of certiorari, prohibition, and mandamus were customary means of obtaining supreme court jurisdiction.47 Certiorari was long employed in Michigan to review rulings of inferior courts and officers or boards exercising quasi-judicial functions.48 The writ of prohibition was used to check and remedy unauthorized practices by trial courts.49 Mandamus likewise commanded action of a lower court judge or other public official to act as required by law50 or accelerated review of patently erroneous judicial rulings where delayed appeal would frustrate a remedy.51 Mandamus was called a peremptory writ because it concluded the issue authoritatively; as a clear command to perform the duty or do the act indicated, no alternatives [were] given.52 Peremptory mandamus contrasted with alternative mandamus, that writ gave the respondent official the option of complying or showing cause to the court why he should not do so.53 Complaints in mandamus against public officials and agencies in both the supreme court and circuit courts were typically resolved summarily based upon pleadings and affidavits.54 The statute from 1915 authorized a show cause with four-days notice of a hearing to

47. See infra notes 48-51 and accompanying text. 48. Edson R. Sunderland, The Michigan Judicature Act of 1915, 14 MICH. L. REV. 383, 388 (1916). 49. Only the supreme court had power to issue writ of prohibition. MICH. COMP. LAWS 13446 (1915). 50. People ex rel Port Huron & Gratiot R.R. Co. v. Judge of St. Clair Circuit, 31 Mich. 456 (1875) (per curiam opinion on mandamus to command vacating ex parte appointment of corporate receiver). 51. See, e.g., Tawas & Bay Cty. R.R. Co. v. Circuit Judge for Iosco Cnty., 7 N.W. 65 (Mich. 1880) (issuing mandamus to vacate improper injunction; appeal as legal remedy inadequate due to delay in procedure); Dillon v. Shiawassee Circuit Judge, 91 N.W. 1029 (Mich. 1902) (issuing mandamus to vacate contempt citation against husband in divorce action). 52. CHESTER J. ANTIEAU, THE PRACTICE OF EXTRAORDINARY REMEDIES: HABEAS CORPUS AND THE OTHER COMMON LAW WRITS, 2.52 (1987); see also Woodford v. Hull, 7 S.E. 450, 451 (W. Va. 1888) (Mandamus lies to enforce the performance of ministerial duties . . . the awarding of the peremptory writ ends the proceeding). 53. See Harris v. State, 34 S.W. 1017, 1022-23 (Tenn. 1895). 54. For published opinions by circuit judges on mandamus applications a century ago, see Samuels v. Couzens, No. 76093, reprinted in 4 BI-MONTHLY L. REV. 27 (1920-21) (Wayne County Circuit Court, J. Jayne) (jewelers entitlement to business license); Stearns v. Vincent, No. 430, reprinted in 10 BI-MONTHLY L. REV. 158 (1926-27) (Jackson County Circuit Court, J. Dingeman) (addressing justice of the peaces mandamus claim for payment of compensation for trying criminal cases).

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resolve any contested facts.55 If the circuit court denied the writ, application for supreme court review was available by certiorari.56 Mandamus was available against public agencies in the supreme court as a matter of original jurisdiction.57 It was also regularly sought in the supreme court against trial judges to challenge a variety of rulings, typically after trial.58 Modeling Englands Court of Kings Bench, Michigan (like other states) adopted these writs in assigning its supreme court with general supervisory control of public administrators.59 The prerogative writs played an important role in the development of responsible government throughout the United States.60 As will be seen, the supreme courts current peremptory order rule authorizes an analogous summary procedurenot limited to cases presenting clear-cut entitlement to relief. 2. 1931-33 Rule Origins: Summary Writs Upon Applications a. Emergency Applications for Leave to Appeal 1931 Rule 67: If either party claims that a case is of such a character as to entitle him to an early hearing, such as appeals [on] writs of mandamus, he may file for an early hearing.
55. MICH. COMP. LAWS 15184 (1915). 56. Woolman Constr. Co. v. Sampson, 188 N.W. 420, 421 (Mich. 1922) (action to compel four county drain commissioners to make payments to contractor); Jackson v. Vedder, 187 N.W. 702, 702 (Mich. 1922) (action by City of Jackson against its clerk to resolve election dispute concerning authorization to issue bonds); Letourneau v. Davidson, 188 N.W. 462, 465 (Mich. 1922) (certiorari to Industrial Accident Board); Carvey v. W. D. Young & Co., 188 N.W. 392, 392 (Mich. 1922) (certiorari to Department of Labor and Industry). 57. See generally Common Council v. Deland, 189 N.W. 35 (Mich. 1922). 58. For cases of review of a trial judges ruling in mandamus, see Miley v. Grand Traverse Circuit Judge, 186 N.W. 398, 399 (Mich. 1922); Christian v. Wayne Circuit Judge, 188 N.W. 359, 359 (Mich. 1922); Wackenhut v. Washtenaw Circuit Judge, 188 N.W. 352, 359 (Mich. 1922); Flowers v. Wayne Circuit Judge, 188 N.W. 411, 411 (Mich. 1922). 59. Leonard S. Goodman, Mandamus in the Colonies: The Rise of the Superintending Power of American Courts, 2 AM. J. OF LEGAL HIST. 1, 34 (1958) (In every well constituted government the highest judicial authority must necessarily have this supervisory capacity to compel inferior or subordinate tribunals, magistrates, and all others exercising public powers, to perform their duty.). 60. See generally Harold Weintraub, Mandamus and Certiorari in New York from the Revolution to 1880: A Chapter in Legal History, 32 FORDHAM L. REV. 681 (1964); Harold Weintraub, English Origins of Judicial Review by Prerogative Writ: Certiorari and Mandamus, 9 N. Y. L. F. 478 (1963).

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1933 Rule 60, 4: On showing of emergency, immediate consideration of the application may be prayed 1933 Rule 60, 5: Upon such application, the court, in lieu of leave to appeal may, in its discretion, order issuance of the proper original writ. In 1931, rules of appellate practice were first codified to treat mandamus and other writs in the same way as most discretionary appeals.61 The Michigan Supreme Court has had the power to establish and simplify general rules of practice since the Constitution of 1850.62 The court also had the power to prescribe rules on which appeals would be by right or by leave.63 In 1927, serious work on comprehensive court rules began.64 The legislature commissioned the Judicial Council of Michigan to make reports on continuous study of the organization, rules, and methods of procedure and practice of the states judicial system.65 University of Michigan Law School Professor Edson Sunderland led the drafting of rules for law and chancery cases to eliminate the myriad forms of common law pleading and simplify procedural statutes.66 The 1931 rules were designed to simplify appeals.67 Parties seeking review of lower courts and tribunals were to pursue appeal by filing a
61. Edson R. Sunderland, The New Michigan Court Rules, 29 MICH. L. REV. 586, 595 (1931) 62. A History of Michigan Court Rules up to 1945 by Justice North of Supreme Court appears in JASON L. HONIGMAN, MICHIGAN COURT RULES ANNOTATED, atv. (1949). 63. MICH. COMP. LAWS ANN. 600.232 (West 1961). As mentioned previously, neither criminal defendants nor aggrieved parties to a civil judgment less than $500.00 had a right to appeal in 1931. See supra, note 44. 64. 1927 Mich. Pub. Acts 900. See also Charles W. Joiner, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 MICH. L. REV. 623, 639-40 (1957); Charles W. Joiner, The Judicial System of Michigan, 38 U. DET. L. J. 505, 521 (1961). 65. 1929 Mich. Pub. Acts 106, was quoted in preamble to the councils third report to the governor, June 26, 1933. The council was chaired by a supreme court justice and included a circuit judge, three members of the bar, the attorney general, and one member of the faculty of the law school of the University of Michigan. Id. That U.M. faculty member, Prof. Edson Sunderland, was the laboring oar on the Judicial Council in preparing the Michigan Court Rules of 1931 and 1933. Id. 66. See generally Sunderland, supra note 61; J. Honigman, Edson R. Sunderlands Role in Michigan Procedure, 58 MICH. L. REV. 13, 16 (1959) (detailing Sunderlands work as secretary of the statutory commission to revise the rules of practice and procedure in state courts). 67. Sunderland, supra note 61, at 595.

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notice to appeal, rather than by complaint with the supreme court.68 Under the Michigan Court Rules of 1931, parties seeking mandamus or other discretionary writ had to seek leave to appeal.69 Rule 60 prescribed disposition of the application: the supreme court would endorse them as either allowed or denied; if allowed, briefing of the questions would follow as a matter of course.70 If an emergency presented, Rule 67 allowed a party to urge an early hearing on the appeal, and it specified mandamus as a typical case warranting such expediting.71 The court rules were amended in 1933 with their most important changes on appellate procedure.72 The revised Rule 60 required applicants for leave to appeal to the supreme court to specify whether they sought review by general appeal or by prerogative writ, i.e., mandamus, prohibition, or certiorari.73 This new requirement was the reason for adding language to the Rule authorizing something other than simply granting or denying the application. If extraordinary writ was sought and deemed appropriate on the submitted papers, the court had power in lieu of leave to appeal, to simply issue the proper original
68. See MICH. CT. R. 55 (1931). The new rules for appeals effectively replaced fourteen different general means (and thirty other special provisions) of review under common law and statutes. Honigman, supra note 66, at 18. 69. Rule 60, Section 3 provided: Leave to appeal shall be required . . . : (1) Where such leave is expressly required by statute or rule. (2) Where the right of review sought to be exercised is statutory and is conferred only by certiorari, mandamus or other discretionary writ. (3) Where there is no statutory right to review, and certiorari at common law would be the appropriate remedy. (4) Where, in an action at law submitted on the facts to the court or jury, a judgment is rendered for the defendant, unless the trial judge shall certify that the controversy actually involves more than $500.00. MICH. CT. R. 60 (West 1931). 70. Rule 60, Section 2 provided in relevant part: The court to which application is made . . . shall thereupon endorse upon such application Allowed or Denied. MICH. CT. R. 60 (West 1931). 71. Rule 67 of the Michigan Court Rules of 1931 provided: If either party claims that a case pending in the supreme court is of such a character as to entitle him to an early hearing, such as appeals from orders allowing or refusing writs of mandamus, or cases which on any lawful ground ought to be heard without delay, he may at any time after the printed record is filed in the reviewing court, file a motion in said court for an order setting the case down for an early hearing, stating specifically the grounds or reasons upon which he bases his claim for such early hearing, and supporting his application with such citation of authorities and such affidavits as he may deem necessary. MICH. CT. R. 67 (WEST 1931) (emphasis added). 72. SEARL, supra note 36, at iii. 73. Id. at 387. Rule 60, Section 2(a) - Leave to Appeal to the Supreme Court provided in relevant part: [t]he application shall further state whether general appeal or appeal in the nature of mandamus, certiorari, prohibition, etc. is sought. Id.

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writ.74 This summary procedure reflected the substantive standards for mandamus or prohibition: a clear showing that respondent had disregarded a duty to perform or refrain from performing an act justified prompt issuance of the writ.75 Mandamus and prohibition afforded a speedy remedy to enforce citizens rights against their government.76 Rule 60 of the 1933 Rules thus authorized that the application for leave to appeal be granted, denied, or, alternatively, that the proper original writ issue if such were appropriate.77 Under the Rule, applications seeking to appeal criminal or civil judgments were either granted78 or denied.79 If granted, they were then briefed as part of the courts plenary docket.80 If the case was an emergency, the court gave expedited consideration and issued a prompt decree of mandamus or prohibition.81 Honigmans treatise on the rules confirms that Rule 60s allowance for summary issuance of the proper original writ referred to appeals in the nature of mandamus or prohibition, over which the

74. Id. at 389. The new Rule 60, Section 5 provided: Upon such application the court, in lieu of leave to appeal, may, in its discretion, order issuance of the proper original writ. Id.; KELLY S. SEARLE, 3 A TREATISE ON PLEADING AND PRACTICE AT LAW AND IN EQUITY IN THE STATE OF MICHIGAN 1411 (1934). 75. Elec. Park Amusement Co. v. Murphy, 119 N.W. 1095 (Mich. 1909) (citing numerous Michigan cases in refusing writ of mandamus to compel trial judge to vacate order appointing trustee). 76. Twp. of Roscommon Cnty. v. Bd. of Supervisors, 13 N.W. 814, 815 (Mich. 1882). 77. SEARL, supra note 36, at 387, 389. MICH. CT. R. 60 5. The rule also allowed the appellant to seek emergency consideration that could be determined by the court, or a Justice thereof. See MICH. CT. R. 60 4, 7 (emergency ex parte motion for immediate consideration) (single justice). 78. In re Milners Estate, 36 N.W.2d 914, 916 (Mich. 1949). 79. Kirn v. Ioor, 253 N.W. 318, 320 (Mich. 1934) (denial of application for leave to appeal with concurrence of eight Supreme Court justices). 80. See Sunderland, supra note 61, at 595. 81. See, e.g., Streat v. Vermilya, 255 N.W. 604 (Mich. 1934) (application for leave to appeal from order enjoining election in Flint). Upon granting of motion for immediate consideration, the court directed issuance of mandamus to city clerk to conduct election. Id. See also Second Natl Bank & Trust Co. v. Reid, 8 N.W.2d 104 (Mich. 1943) (prohibition and mandamus to circuit judge to dismiss litigation under res judicata); In Jett v. Judge of Recorders Court, 114 N.W.2d 504 (Mich. 1962), in which the criminal accused complained of trial judges pretrial order referring him to a sanity commission, the supreme court treated an emergency application for leave to appeal as an original application for peremptory writ of mandamus and, upon review of the record, its peremptory order stayed the referral. Training the bar to channel complaints for extraordinary writs to applications for leave to appeal instead proved to be a challenging task. Honigmans treatise on the rules suggested that the court would exercise its appellate powers more freely than its powers by way of original proceedings. Honigman, supra note 62, at 598.

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supreme court had original jurisdiction.82 The court clearly had power over such matters independent of general appellate jurisdiction or a grant of discretionary leave to appeal.83 Rule 60 was carried forward unchanged in all essential aspects with the adoption of the Michigan Court Rules of 1945.84 Finally, the 1933 Rules required the court to give notice of new rules and amendments.85 To conclude on the supreme courts practice before our court of appeals, summary decisions on applications for leave to appeal were limited to cases of mandamus, prohibition, or superintending control. While the courts docket of applications for leave to appeal was a significant part of its workload well before 1965, the Justices options under the rules were to grant or deny them.86 The 1950s brought significant growth in the courts workload and thoughtful study on how to handle it. B. The Reforms of the Revised Judicature Act and the 1963 Court Rules 1. The Studies for a Court of Appeals and Wholly Discretionary Supreme Court Review Professor Sunderland, and state bar committees he served on, had examined the idea of creating an intermediate court of appeals for Michigan since at least 1922.87
82. Honigman, supra note 62, at 598. In discussing Section 5, the annotations include several cases confirming the courts practice under the rule to issue such writs rather than granting the application for leave to appeal. Id. at 601-02 (citing Kirn, 36 N.W.2d at 914); see also Fellinger v. Wayne Circuit Judge, 21 N.W.2d 133 (Mich. 1946); Swanson v. Doty, 33 N.W. 2d 110 (Mich. 1948). 83. See MICH. COMP. LAWS 13535 (1929). See also MICH. COMP. LAWS 15184 (1929) (compilers notes to mandamus); MICH. COMP. LAWS 15193 (1929) (compilers notes to prohibition). Id. 84. See Honigman, supra note 62, at 596-604 (reproducing the 1945 Rules with annotations and commentary to Rule 60). 85. SEARL, supra note 36, at 519 (Rule 81). Rule 81 required that proposed new rules be furnished by the supreme court clerks to county clerks for conspicuous posting. Id. The goal was to enlist the bench, the bar, and the general public in commenting on such proposals for at least thirty days. Id. 86. MICH. STATE COURT ADMIN. OFFICE, REPORT OF THE STATE COURT ADMINISTRATOR 8 (1969) (describing justices individual work on applications prior to the summer of 1964, whereby they would recommend grant or denial to their colleagues). 87. See Edson R. Sunderland, Methods for Relieving Courts of Last Resort from the Growing Burden of Appeals, 1 MICH. ST. B. J. at cxxxiv (1921) (Report of the Committee on Legislation and Law Reform); Edward A. Macdonald, et al., Report of the Special Committee on Intermediate Appellate Courts, 10 MICH. ST. B. J. 43 (1930). Both reports examined the idea of dividing the supreme court into two or more divisions, an idea

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In 1933, Professor Sunderland was the chief author of a lengthy report for the Judicial Council examining the ideal structure for an appellate system.88 The Organization and Operation of Courts of Review studied all aspects of appellate procedure in the state courts.89 Comparing practices and statistics, and drawing on the pertinent scholarship, it surveyed methods to improve both the capacity and efficiency of reviewing courts. Innovations in creating intermediate courts of appeals, adding lawyer staffing and deciding cases without opinions were all reviewed. Chief among its findings were the vexing aspects of double appeals in states with intermediate courts of appeal.90 The Sunderland report posited that allowing a discretionary second appeal undermines public confidence because non-lawyers could not understand how courts of substantially equal ability should reach different results on legal questions.91 It questioned double appeals in cases where a unanimous appeals court ruling was later reversed by a bare majority of a states supreme court as spectacle, decided by a minority of the combined number of all appellate judges, and gave illustrations of such a case as a cause clbre.92 It reviewed the practices of discretionary review in seven state supreme courts going back at least a decade and some cases to 1900.93 Reflecting on the merits of discretionary second appeals in other states, the Sunderland Report questioned their true benefit in light of their costs in time and expense.94 Delay in enforcing judgments typically deprives the first winner the use of their money or property.95 Might allowing such successive appeals effectively force winners of the first appeal to settle for a lower figure to avoid the delay of an application to a supreme court? Might systems allowing double appeals deter citizens from turning to the courts in the

which is also examined in a current treatise. ROBERT L. STERN, APPELLATE PRACTICE IN THE UNITED STATES, 50-57 (2d ed. 1981). 88. EDWARD O. CURRAN & EDSON R. SUNDERLAND, UNIV. OF MICH. LEGAL RESEARCH INST., THE ORGANIZATION AND OPERATION OF COURTS OF REVIEW: AN EXAMINATION OF THE VARIOUS METHODS EMPLOYED TO INCREASE THE OPERATING CAPACITY AND EFFICIENCY OF APPELLATE COURTS (1933) (Third Report of the Judicial Council of Michigan). 89. See id. 90. Id. at 186. 91. Id. 92. Id. at 186-87. 93. Id. The states cited in this section of the study included California, New York, and Pennsylvania. 94. CURRAN & SUNDERLAND, supra note 88, at 191. 95. Id.

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first place? Sunderlands Report concluded these answers were unknowable, but were serious concerns.96 It appears that Sunderlands aversion to multiple appeals worked to delay serious consideration of an intermediate appellate court in Michigan. Before and after the 1933 Report, he published articles on the topic in journals urging state supreme courts to sit in divisions instead.97 Dean Roscoe Pound agreed that avoiding double appeals was essential to improve appellate procedure in the state courts: that [a]s a general proposition, one appeal in one case ought to be enough.98 In 1956, a Joint Committee on Michigan Procedural Revision was formed among the bench, the Michigan State Bar, and the Michigan legislature.99 Charles W. Joiner chaired a statewide committee of three
96. Id. 97. Edson R. Sunderland, Intermediate Appellate Courts, 14 J. AM. JUDICATURE SOCY 54, 55-56 (1930) (Advantages of a Single Court of Review, Sitting in Divisions, Impressively Presented by Prof. Edson R. Sunderland); Edson R. Sunderland, Two Appeals are Unjustifiable, 18 J. AM. JUDICATURE SOCY 182 (1935); The Problem of Double Appeals, 17 J. AM JUDICATURE SOCY 116 (1933); Edson R. Sunderland, The Burden of Double Appeals under a System of Intermediate Appellate Courts, 7 OHIO ST. B. ASSN REP. 1 (1934); Edson R. Sunderland, The Problem of Appellate Review, 5 TEX. L. REV. 126, 134 (1927) (Double appeals are an economic waste and a menace to public confidence in the courts.). One of Sunderlands indictments read: It is quite obvious that as a means of administering justice, double appeals are seriously objectionable. In the first place they involve an economic waste of time, money and effort. The allowance of a second appeal is analogous to the granting of a new trial. Every observant lawyer is aware that the whole trend of modern procedure is toward the development of methods which will enable cases to be so prepared before trial, so presented at the trial, and so dealt with on review, that they will not have to be tried again. These are exactly the same reasons why cases should be so reviewed that they need not be reviewed again. Litigants cannot afford either the time or the expense of repeated appeals. The public cannot afford to maintain a judicial establishment for continually doing over again what ought to have been done well enough in the first place. In the second place double appeals discredit the judiciary. Public confidence in the courts is undermined by the spectacle of one appellate court reversing another, particularly when such reversals are by divided courts and the final decision may represent the opinion of the minority of the judges who passed upon the case. In the third place, double appeals introduce a gambling element into litigation, which discourages resort to the courts and thereby impairs their usefulness as instruments of government. Edson Sunderland, The Problem of Double Appeals. 12 Tex. L. Rev. 47, at 49-50 (1933). 98. ROSCOE POUND, APPELLATE PROCEDURE IN CIVIL CASES, 327, 392 (1941) ([D]ouble appeals are to be avoided as far as possible.). See ROBERT A. LEFLAR, INTERNAL OPERATING PROCEDURES OF APPELLATE COURTS, 9-10 (1976) (One appeal is enough, but one should be allowed in almost any case.). 99. See COURT ADMIN. TO THE JUSTICES, ANNUAL REPORT AND JUDICIAL STATISTICS FOR 1956, 5-6 (1957) (announcing project).

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dozen lawyers and judges (including three supreme court justices) to study a comprehensive reorganization to eliminate needlessly duplicative statutes.100 Jason L. Honigman also chaired the State Bar Committee on Civil Procedure that collaborated on that Joint Committees work.101 The work spanned nearly four years and progress reports were published as part of the courts annuals reports from 1956-60.102 The Joint Committees ambitious rewrite of rules of pleading and practice covered the gamut of modern reforms.103 On appeals, and at the request of the chief justice, the Committee also examined the courts decisional practices on applications for leave to appeal, compared them to practices in others states, and studied the desirability of an intermediate appellate court. 104 A major theme of the Joint Committees study was that the supreme court was overworked and that applications for leave to appeal were one of the very real burdens on the justices.105 The report reviewed the justices preparation of summaries and recommended dispositions to be

100. The Revised Judicature Act (RJA) eliminated some 1400 statutory provisions by combining them or incorporating them into the new court rules. JASON L. HONIGMAN, REPORT OF THE COMMITTEE ON CIVIL PROCEDURE, reprinted in the SUPREME COURT ADMINISTRATORS ANNUAL REPORT AND JUDICIAL STATISTICS 1961, 47, 49 (1961). 101. Id. 102. See COURT ADMIN. TO THE JUSTICES, supra note 99, at 5-6 (announcing project); JASON L. HONIGMAN, REPORT OF THE CIVIL PROCEDURE COMMITTEE OF THE JUDICIAL CONFERENCE, ANNUAL REPORT AND JUDICIAL STATISTICS FOR 1958, 45 (1958); CHARLES JOINER, THE REVISION OF MICHIGANS PROCEDURE: A JOINT EFFORT, ANNUAL REPORT AND JUDICIAL STATISTICS FOR 1958, 49 (1958); JASON L. HONIGMAN, REPORT OF THE CIVIL PROCEDURE COMMITTEE OF THE JUDICIAL CONFERENCE OF MICHIGAN, ANNUAL REPORT AND JUDICIAL STATISTICS FOR 1959, 58-59 (1959) (indicating members of the supreme court had been actively working with the Civil Procedure Committee for four years and that reports on the RJA and new court rules were in the justices hands for their review); JOINT REPORT OF THE JOINT COMMITTEE, ANNUAL REPORT AND JUDICIAL STATISTICS FOR 1960, 40 (1960) (summarizing the scope of the final product and status of enactment of the RJA and tentative approval of the proposed rules by the court). 103. Body attachments in debt actions were eliminated, pretrial discovery was liberally expanded, and the rules on pleading and joinder were relaxed to more fully eliminate the procedural distinctions between law and equity. See the Joint Report of the Joint Committee on Michigan Procedural Revision and the Committee on Civil Procedure, 40, MICH. STATE B. J. 24, 68-71 (1961), which is also found in SUPREME COURT ADMINISTRATOR ANNUAL REPORT FOR JUDICIAL STATISTICS FOR 1960, at 40 (1960). The legislature endorsed the project as well and named seven members to serve as legislative members. See H.R. Con. Res., 45, 84th Cong. (1956), which is detailed in the FINAL REPORT OF THE JOINT COMMITTEE ON MICHIGAN PROCEDURAL REVISION, 7 n.3 (1960). 104. N. O. Stockmeyer Jr., Rx for the Certiorari Crisis: A More Professional Staff, 59 A.B.A. J. 846, 849 (1973). 105. CHARLES W. JOINER, JUDICIAL ADMINISTRATION AT THE APPELLATE LEVEL MICHIGAN 9 (1959).

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considered by the entire court in conference.106 Like miscellaneous motions, applications for leave to appeal were referred to as window matters because they were typically stacked on the window sills in the justices conference room.107 The Joint Committee saw that hundreds of applications every year were imposing a very real burden on the court108 and that the volume of work necessarily prevented it from concentrating on systemic improvements to the administration of justice in Michigan.109 The Joint Committees Report revisited the findings of the 1933 Sunderland Report in light of the courts increasing workload. Recall that the court was obliged to hear appeals as of right in civil cases where the judgment exceeded $500.110 The Joint Committee concluded that it was past time for Michigan to establish an intermediate court of appeals.111 At the same time, it warned that failing to guard against double appeals would undermine the value of a new court.112 While the problem of double appeals is its most serious where a second appeal is a matter of right, the Joint Committee saw the danger in routine grant of discretionary review.113
106. Id. 107. Id. at 8-9. 108. Id. The work on these window matters was detailed as follows: [T]he motions and matters involving the courts discretionary jurisdiction have increased rapidly during the past several years and last year reached a height not exceeded in twenty-five years. It is becoming one of the very real burdens on the part of the justices, consuming a substantial amount of each judges time. . . . In 1956, for example, there were almost six hundred such matters presented to the court, or twice as many as cases docketed for formal hearing. *** At the present time motions or petitions are filed with the clerk of the court who enters them on a motion docket. The clerk delivers them to the justices in rotation, in time to permit them to be considered before the scheduled conference of the court . . . . The memoranda, after circulation in advance of conference, sometimes consist of very substantial briefs and careful analysis of complicated facts. The reports comprise a summary of the facts and the question of law and the judges conclusions thereon. Id. at 3-4, 8-11. 109. The report detailed the variety of motions and applications the supreme court handled in the preceding years, extraordinary writs, superintending control, and applications for leave, with statistics on the volume of work they presented for each justice. Id. 110. See Kelman, supra note 43, at 6 n.20 (citing report prepared by Professor Joiner for the delegates of the constitutional convention documenting that supreme court obligatory civil appeals comprised the bulk of its 250 opinions in 1956). 111. See JOINER, supra note 105. 112. Id. 113. Id. at 34.

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The Committee concluded that the supreme court was trying to do the impossible in both (1) leading the administration of justice by authoritative interpretation of law and (2) correcting errors in individual cases.114 Its 1959 report recommended that a court of appeals be created to realize appeal as of right in both civil and criminal cases and to reduce the supreme courts size from eight to five members and its jurisdiction to by-leave only.115 The new court would be the principal arbiter for correcting a trial courts errors.116 The Joint Committees Report also concluded that a system of commissioners might be well-suited to perform this work to assist the court in its screening of cases for review.117 The Joint Committees proposed court rules contained no significant change in the procedure for applications for leave to appeal. Rule 80.6 carried forward the allowance in the former Rule 60 for emergency consideration of an application.118 If an appellant made a showing of the need for immediate consideration, even ex parte, the court in lieu of leave to appeal, could in its discretion issue the appropriate peremptory order.119 The committee comment to the proposed rule cited Rule 60 of
[S]imilar objections could be made to double appeals that occur in the exercise of discretionary review. However, the consideration of requests . . . should be fewer than at the time present time. Indeed, such a system might permit more careful consideration of those requests than is now possible due to the burdens of the court. Such discretionary review power would be exercised only in significant cases made necessary for reasons of supervisory control and the crystallization and development of the law[.] Id. 114. Id. at 44. 115. Id. at 44-47. The supreme court consisted of eight members since 1905. 1903 Mich. Pub. Acts 250. See JOINT COMM. ON MICH. PROCEDURAL REVISION, FINAL REPORT OF THE JOINT COMMITTEE ON MICHIGAN PROCEDURAL REVISION, PART I, COMMITTEE REPORT AND RECOMMENDATIONS, 40, n.73 (1959) (on file with author); see also Joint Committee on Michigan Procedural Revision, 39 MICH. ST. B. J. 22, 52, 55 (summarizing the Committee Report and Recommendations). Both sources identify a second report of the Committee, Judicial Administration at the Appellate Level Michigan. JOINER supra note 105; see also Jason L. Honigman, Procedure - 1963: A Summary of the New Court Rules and Revised Judicature Act, 41 MICH. ST. B. J. 12 (1962). 116. JOINT COMM. ON MICH. PROCEDURAL REVISION, supra note 115, at 35. (The court of appeals would become the court for the correction of errors). 117. Id. at 12-16. 118. See MICH. CT. R. 60 4 (1931). 119. JOINT COMM. ON MICH. PROCEDURAL REVISION, 2 FINAL REPORT: JOINT COMMITTEE ON MICHIGAN PROCEDURAL REVISION, PART 3, PROPOSED COURT RULES AND COMMENTS 290 (1959). Proposed Rule 80.6.4 provided: Emergency Appeal. On showing of emergency, of appellants due diligence, and of the character of injury to him through observance of the above practice on application for leave to appeal, application may be made on ex parte

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the 1931 Rules as its source and nothing in the history suggests it intended major changes in procedure.120 The Joint Committee drafters also introduced orders for superintending control as a means for finally abrogating the extraordinary writs of certiorari, prohibition, and mandamus against judicial officers.121 In short, it is apparent that the former practice for writs of mandamus was the source of the word peremptory in Proposed Rule 80.6. The rules and commentary do not suggest the drafters looked to expand summary decisions on applications. Rather, the evidence suggests proposed rule 80.6 was meant for cases of mandamus against public offices to compel required conduct and similar emergency injunctions. 2. GCR 1963, 806.5 Authorization for Peremptory Orders in Emergencies In 1961, the legislature approved nearly all of the Joint Committees measures as the Revised Judicature Act (RJA) and the supreme court promulgated the General Court Rules (GCR 1963).122 GCR 1963, Rule 806, with minor changes, authorized peremptory order on application only in emergency:

statement of fact, showing of merit, and on proof of such notice to other parties as the circumstances permit, or excuse for lack of notice, an immediate consideration of the application may be prayed. Upon such application the court, in lieu of leave to appeal, may in its discretion issue the appropriate peremptory order. Id. (emphasis added). 120. Id. at 291. The rules and commentary do not suggest that the court was seeking new avenues for deciding cases summarily based upon the application. Rather, all of the evidence suggests the proposed rule 80.6 was meant for cases in the nature of mandamus against public officers to compel required conduct and similar emergency injunctions. Id. 121. Id. at 187. Proposed Rule 70.11.3 provided: The following writs are superseded and an order of superintending control shall be used in their place: (1) Certiorari; (2) Mandamus, when directed to an inferior tribunal or an officer thereof; and (3) Prohibition. Id. Superintending control is a term from the Michigan Constitution of 1908 granting the supreme court jurisdiction over interior courts. MICH. CONST. of 1908 art. VII, 4. An order to show cause procedure was authorized for complaints for superintending control in the supreme court. Proposed Rule 70.10.7(2). Id. 122. Revised Judicature Act of 1961, 1961 Mich. Pub. Acts 418. The RJA also modernized the states statutory approach to personal jurisdiction and venue. John Demeester, Comment, Venue and Jurisdiction Under the Revised Judicature Act and General Court Rules of 1963, 8 WAYNE L. REV. 527 (1962); Jason L. Honigman, Procedural Changes in Michigan, 31 FED. RULES DECISIONS 113 (1962), Honigman, supra note 115, at 12; Robert Meisenholder, The New Michigan Pre-Trial Procedural Rules: Models for Other States?, 61 MICH. L .REV. 1389 (1963).

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Emergency Appeal. On showing of emergency, of appellants due diligence, and of the character of injury to him through observance of the above practice on application for leave to appeal, . . . an immediate consideration of the application may be prayed. Upon such application the court, in lieu of leave to appeal, may in its discretion issue the appropriate peremptory order.123 Accordingly, if an applicant showed good grounds for immediate consideration, the court, in lieu of leave to appeal, could issue the appropriate peremptory order.124 The renumbering of proposed rule, and numerous changes not relevant here, confirm the supreme court scrutinized the proposed rules.125 The court also adopted the rules on extraordinary writs in a separate chapter.126 With the Joint Committees re-ordering ratified by the court, the RJA and the General Court Rules would be effective January 1, 1963.127 The adopted rules included procedures for amending them. GCR 1963, 933 required reasonable notice to the State Bar and its committees for comments, except in cases where the supreme court found a need for immediate action.128 Mr. Honigman reported that enlisting the bar and Judicial Conference was a significant innovation129 that would change
123. GCR 1963 806.5 provided in full: Emergency Appeal. On showing of emergency, of appellants due diligence, and of the character of injury to him through observance of the above practice on application for leave to appeal, application may be made on ex parte statement of fact, showing of merit, and on proof of such notice to other parties as the circumstances permit, or excuse for lack of notice, an immediate consideration of the application may be prayed. Upon such application the court, in lieu of leave to appeal, may in its discretion issue the appropriate peremptory order. MICH. GEN. CT. R. 806.5 (1962) (on file with author). 124. Id. 125. Papers of Charles W. Joiner, Memorandum from Supreme Court Reporter Hiram Bond to the Justices upon Re-Read of the Proposed Court Rules (November 1, 1961) (on file with the University of Michigan Bentley Historical Library); Papers of Charles W. Joiner, Memorandum from Jason L. Honigman Approving the Courts Changes to the Rules (November 16, 1961) (on file with author). 126. MICH. GEN. CT. R. 710-718 (1962) (covering superintending control, habeas corpus, mandamus, quo warranto, and injunctions). 127. MICHIGAN GENERAL COURT RULES OF 1963 AND THE REVISED JUDICATURE ACT 1961 (1962). 128. Rule 933 also required the Supreme Court Administrator to notify relevant committees of the Judicial Conference. MICH. GEN. CT. R. 933 (1962). 129. HONIGMAN, supra note 100, at 49-50. (The Court has thus imposed restrictions on its own conduct as well as the circuit judges to guard against hasty or ill-conceived changes in procedural laws.).

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previous practice on proposed rules.130 Though he noted the forthcoming court of appeals would necessitate new rules for appeals to the supreme court,131 Mr. Honigman could not have foreseen the justices would see the advent of the intermediate court as a reason to expand Rule 806.5 on emergency cases into an unlimited power of peremptory action on any application. C. The Courts 1964 Rule for Summary Disposition on Any Application The many changes of the RJA and the GCR were followed by the creation of the court of appeals in 1964. The supreme court used this as an emergency to adopt its peremptory order rule which continues as the basis for the current rule. As we will see, the court used Rule 933s authorization for emergency rule-making to radically expand its power to summarily act on applications. 1. The 1963 Constitution: A Court of Appeals and Criminal Appeals as of Right When Michigan convened its constitutional convention in April 1961, a key proposal was to create a court of appeals.132 As discussed earlier, the prospect of an intermediate court had been studied continually for at least seventy years133 before concrete proposals were
130. Honigman, supra note 115, at 28. 131. COMM. ON CIVIL PROCEDURE, REPORT OF COMMITTEE ON CIVIL PROCEDURE: ANNUAL REPORT AND JUDICIAL STATISTICS FOR 1961, 47, 50 (1961): Like all living organisms, the task of improvement of laws for the administration of justice can never be ended. Currently our state faces the prospect of adoption of a new constitution which provides for creation of an intermediate appellate court. Should this constitution be adopted, a new set of appellate rules will be needed as well as major changes in the practice and procedure of appeals to the Supreme Court. Id. 132. Delegates differed sharply on the value and wisdom of Art VI, 6, which required the supreme court to give written reasons for each decision, including those simply denying leave to appeal. See Ann E. Donnelly, An Analysis of Proposed Article VI and the State Bar Poll, 41 MICH. ST. B. J. 41, 43 (1962). Art. VI, 6 provides: Decisions of the supreme court, including all decisions on prerogative writs, shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal. When a judge dissents in whole or in part he shall give in writing the reasons for his dissent. MICH. CONST. art. VI, 6. See Ann E. Donnelly, An Analysis of Proposed Article VI and the State Bar Poll, 41 MICH. ST. B. J. 41, 43 (1962). 133. CURRAN & SUNDERLAND, supra note 88, at 202-04 (detailing Michigan state and local bar association reports consistently opposing the idea since 1892).

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presented to the Constitutional Convention of 1961 and ratified by Michigan voters in April of 1963.134 The new court of appeals was to commence hearing cases on January 1, 1965 as the court of last resort for most litigants.135 As the tribunal for appeals of right in Michigans one court of justice, its decisions would be final, excepting for such review as prescribed by supreme court rule.136 The new constitution also gave criminal defendants an appeal as of right upon conviction.137 This new right would take effect March 1, 1964, but the new court of appeals would not be available to hear them until 1965.138 Substantial resources were invested into equipping the new court to serve as the primary appellate tribunal.139 While the supreme courts jurisdiction would become wholly discretionary in 1965, it was obliged to hear criminal appeals throughout 1964. Some legislators and judges voiced concerns that as the new court would not be operational by 1965, the supreme court might be overrun by criminal appeals.140 In January 1964, the urgent need to constitute the new court prompted the justices to issue an advisory opinion that the court of appeals judges had to be elected from districts drawn along county
134. The constitution was submitted at the election of April 1, 1963, and was adopted. A recount established the vote as 810,860 to 803,436. The effective date of the Constitution of 1963 was January 1, 1964. See MICH. CONST. 1963, Schedule 16. The background of the establishment of the Michigan Court of Appeals by the Constitution of 1963 has been well chronicled. Charles W. Joiner, The Judicial System of Michigan, 38 U. DET. L. J. 505, 529 (1961) (overview by Professor Joiner, who had served as Chairman of the Joint Committee on Procedural Revision since 1956). 135. CHARLES E. HARMON, A MATTER OF RIGHT A HISTORY OF THE MICHIGAN COURT OF APPEALS, 5 (2002). 136. 1964 Mich. Pub. Act 281 14 (codified at MICH. COMP. LAWS ANN. 600.314 (West 1964)). See MICH. CONST. art. VI, 1 (The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court . . .). See William J. Fleener Jr., Its a Dirty Job But Somebody Has to do it: Resolution of Conflicts and Law-Making in the Michigan Court of Appeals, 10 T. M. COOLEY L. REV. 149, 151-52, n.28 (1993) (quoting constitutional convention delegate Professor Harold Norris: [f]or many people this appellate court would be the court of last resort.). 137. MICH. CONST. art. I, 20. See Jensen v. Menominee Circuit Judge, 170 N.W.2d. 836 (Mich. 1969). The state bar had for many years recommended that a right to appeal be extended to criminal defendants. Carol A. Parker, Should the Michigan Supreme Court Adopt a Non-Majority Vote Rule for Granting Leave to Appeal?, 43 WAYNE L. REV. 345, 347 n.10 (1996) (citing Charles W. Joiner, The Judicial System of Michigan, 38 U. DET. L. J. 505, 529 (1961)). 138. See Parker, supra note 137. 139. See HARMON, supra note 135. 140. C. Rudow, Prod Legislature on Appeals Court, DETROIT NEWS, Jan. 19, 1964, at 13-B (naming state representatives and fact that unnamed [j]udges in Detroit and elsewhere have expressed alarm) (copy on file with author).

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lines.141 The high courts sua sponte ruling drew praise from the Detroit Free Press.142 However, its editorial hoped the supreme court would fully deliberate matters before it after the new intermediate court was created.143 While the justices unsolicited advice to the legislature was welcomed given the public exigency, the Free Press cautioned the court not to forego appellate process regularly: In other cases, in which facts and arguments are developed in the lower courts, the long and slow trail is a better one. The Supreme Court needs to have everything at hand before it rules. With the discretion expected of it, we feel sure the Court will know the difference.144 Yet just a few days before the Free Press editorial, the court had given itself unlimited power to overrule virtually any court of appeals decision without the long and slow trail of briefing the merits of the legal question.145 2. The 1964 Emergency Amendments for Peremptory Order on any Application On January 21, 1964, with no notice to the bar under GCR 1963, Rule 933, the court signed amended Rule 806.7, that upon any application for leave to appeal, the court may, in lieu of leave to appeal, issue an appropriate peremptory order.146 The Rules broad expansion of the courts peremptory power to all applications was announced without any prior notice to the bar of the proposal.147 Ironically, the expedited rules operative wording of the hurriedly adopted rule was lifted directly from GCR 1963, 806.5,
141. See In re Court of Appeals, 125 N.W. 719, 719 (Mich. 1964) (explaining the supreme courts sua sponte directive, a letter to the governor and legislature on the meaning of the 1963 Constitutions provisions for imminently requisite election of court of appeals judges). 142. Editorial, Michigans High Court Eliminates a Detour, DETROIT FREE PRESS, Jan. 25, 1964 (copy on file with author). 143. Id. 144. Id. 145. MICH. GEN. CT. R. 806.7 was adopted on January 21, 1964. See infra Part II.C.2. 146. MICH. GEN. CT. R. 806.7 (emphasis added). Upon any application for leave to appeal, the court may, in lieu of leave to appeal, issue an appropriate peremptory order. Id. (adopted Jan. 21, 1964) (reprinted in Thomas M. Kavanagh, Supreme Court of Michigan, Resolution of Adoption, 43 MICH. ST. B. J. 34, 37 (1964)). 147. MICH. GEN. CT. R. 806.7, reprinted in 372 Mich. at xxiii. The courts resolution for the emergency rule change eliminated the notice requirements of GCR 1963, 933 because criminal defendants appeals as of right were already coming before it. MICH. CONST., art. I, 20. See Jensen, 170 N.W. 2d. at 836. The resolution provided that in cases of difficulty caused by the amendments, counsel might apply for solutional instructions. MICH. GEN. CT. R. 806.7, reprinted in 372 Mich. at xxiii.

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allowing peremptory order only in emergencies.148 New rules also addressed the timing of criminal appeals to the supreme court before the court of appeals was operational.149 In particular, they set standards for granting leave to hear delayed appeals where appeal as of right had not been timely taken.150 It is unclear what motivated the court to give itself such an expansive peremptory order power. Concerns about delayed applications in criminal cases would seem to be the obvious explanation. There were no doubt concerns about the high number of criminal appeals coming before the supreme court, both by right and by delayed application for leave. Yet I found no record of the courts discussion of recasting GCR 1963, Rule 806.5 on emergency appeals to apply to all applications.151 The idea for such a rule was not identified by the justices on their agenda to address major policy questions posed by the coming court of appeals.152 The rules in all other state supreme courts authorized either granting or denying permission to review an intermediate courts judgment.153 As several justices were members of the Joint Committee and no doubt privy to its final report,154 it is surprising that they engineered such a drastic rule change without debate. The State Bar Committee on Civil Procedure, chaired by Professor Joiner and which included Mr. Honigman, complained in fall of 1964 about the courts adoption of rules in the preceding year without notice required by Rule 933.155
148. ROGER A. NEEDHAM, REVISED JUDICATURE ACT: SPECIAL PROCEEDINGS AND APPEALS 138 12.300 (1962 & Supp.1964 ) (copy on file with author). New Rule 806.7 was originally a part of the emergency appeal rule. Id. 149. See Jason L. Honigman, Appellate Practice 1965, 43 MICH. ST. B. J. 11, 12 (1964) (discussing resolution of adoption of amendments to GCR 1963, 518, 803, 803, and 807) (copy on file with author). 150. See MICH. GEN. CT. R. 803 (1963) (Time for Taking Appeal to the Supreme Court); MICH. GEN. CT. R. 806 (1963) (Appeals to Supreme Court By Right and By Leave) (adopted Jan. 21, 1964), reprinted in Kavanagh, supra note 146, at 37. 151. Professor Joiners voluminous papers on his intensive work (along with Mr. Honigman) on the rules during the period are conspicuously silent on this aspect of the 1964 rule changes. 152. See agenda of Major Policy Questions for the new court of appeals. Papers, Justice Otis Smith, Supreme Court Papers, Intermediate Court of Appeals 1963, Box 4, (on file at the University of Michigan Bentley Historical Library) (on file with author). 153. See, e.g., ILL. S. CT. R. 302 (2012). 154. Professor Joiner mailed Justice Dethmers a copy of the Joint Committees Final Report on August 27, 1963. Letter from Professor to Justice Dethmers, Papers 19601966, Box 5 (on file with the Bentley Historical Library at the University of Michigan), (copy on file with author). 155. See Report of the Committee on Civil Procedure, 43 MICH. ST. B. J. 27, 28 (1964) (The committee believes that the drafting of a number of the rules could been improved if the membership of the bar had been invited to comment . . . .).

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However it came about, the new peremptory rule was a radical departure from prior rules and practices, as well as the recommendations of those who had studied other state courts. In addition to the State Bar Journal, the new rule on applications for leave to appeal was published in the Detroit Legal News.156 The front page notice reproduced the new rules in full, but tellingly printed in bold only the text of the new rule: 7. Upon any application for leave to appeal, the court may, in lieu of leave to appeal, issue an appropriate peremptory order.157 Later in 1964, the court again promulgated rules on an emergency basis for the new court of appeals and standards for granting of leave to appeal from its judgments.158 With the new court taking the Chapter 80 rules on appeals, the supreme court recast its peremptory order rule as Rule 853.159 Both sets of rules granted power of peremptory order on applications for leave to appeal to the new court of appeals and the supreme court.160 In drawing its own rules, Rule 853 provided that leave to appeal a judgment of the court of appeals would be allowed only if the matter was of major significance to the states jurisprudence, was clearly erroneous and would cause material injustice, or conflicted with another precedent or other court of appeals decisions.161 In summary, the new rules were professedly drawn to retain as much of the former practice as could be maintained in the face of changes requisite to the creation of the court of appeals.162 Yet they broke new ground in extending the power of summary decision beyond those seeking relief by extraordinary writ. The power of peremptory decision, including outright reversal, applied to all cases by amendments to GCR 1963, 852 (by-pass applications) and 853 (applications for leave to appeal).163 Rule 853.2(4) now provided Upon any application for leave to appeal, the court on its own motion or by stipulation of the

156. Supreme Court Rule 806.7, DETROIT LEGAL NEWS, Feb. 13 and 15, 1964, at 1. These front page notices did not include the Justices emergency resolution. 157. Id. (emphasis in original). 158. See MICH. GEN. CT. R. 806.7 (1963) (court of appeals); MICH. GEN. GT. R. 852.2(4)(g) (1963) (by-pass application to supreme court); MICH. GEN. CT. R. 853.2(4) (1963) (application for leave to the supreme court). 159. MICH. GEN. CT. R. 853.2(4). 160. Id. 161. MICH. GEN. CT. R. 853.1 (1963). In addition to the jurisdiction to review the court of appeals upon leave granted, the supreme courts rule permitted it to entertain emergency by-pass applications for leave to appeal prior to consideration by the intermediate court. MICH. GEN. CT. R. 852.1 (1963). 162. Honigman, Procedure 1963, supra note 115, at 12. Curiously, the Honigman Article does not mention the expansion of the peremptory order power. 163. MICH. GEN. CT. R. 852 (1963); MICH. GEN. CT. R. 853 (1963).

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parties, may in lieu of leave to appeal enter a final decision or issue an appropriate peremptory order.164 As with the January 1964 rule, no rationale for Rule 853.2(4) appears in any reports on the proposed rules or other sources from the period.165 The rules primary authorization is for entry of a final decision on the application including affirmance, reversal, or remand to a lower court.166 An appropriate peremptory order no doubt referenced summary determination of what were formerly prerogative writs. This construction is confirmed by cases from 1964 and 1965, in which at least three of the justices used the term peremptory writs or orders in discussing mandamus.167 Michigans treatise on the General Court Rules confirmed for the bench and bar that peremptory orders were to be reserved for the rare case.168 The 1972 edition of the Honigman & Hawkins treatise explained the power would of course be used sparingly - only where it was clear that the matter was controlled by settled legal principles.169 The treatise cited only two cases: one granting mandamus to compel a scheduled election to proceed170 and another to review an injunction against a strike by public school teachers.171 Both cases involved bona fide emergencies; they were heard on applications to by-pass the court of appeals because of the clear need for prompt decision.172 Both rulings also took the form of per curiam opinions (not orders) setting forth their reasoning.173
164. MICH. GEN. CT. R. 853.2(4) (1963) (adopted Oct. 9, 1964), reprinted in Kavanagh, supra note 146, at 51). Rule 852.2(8), carrying a similar power for by-pass appeals was identical to Rule 853.2(4), except the word judgment was used in place of decision. MICH. GEN. CT. R. 852.2(8) (1963). The complete rules were set out as Chapter 80 of the General Court Rules of 1963 and were published in 373 Mich. xix-cxii. The rules were referred to by one author as hastily rewritten. See John J. Hensel, Appeals to the Court of Appeals and the Supreme Court, 63 MICH. B. J. 953 (1984). 165. I have reviewed the Bentley Historical Librarys extensive collection of papers of Professor Charles Joiner as well as collections of two supreme court justices who were on the court in 1964, Paul Adams and Otis Smith. 166. MICH. GEN. CT. R. 854.4 (1963). 167. See Superx Drugs Corp. v. State Bd. of Pharmacy, 125 N.W.2d 13, 21 (Mich. 1964); on rehg 134 N.W.2d 678, 681 (If it is, no peremptory writ or order should issue as a matter of policy (GCR 1963, 711.2)[.]). 168. 6 JASON L. HONIGMAN & CARL HAWKINS, MICHIGAN COURT RULES ANNOTATED 256 (2d Ed. West 1972). 169. Id. at 256 (Of course, such peremptory power will be exercise sparingly and only in those cases in which it is quite clear on the face of the application for leave to appeal that the disposition of the case will be controlled by settled legal principles.). 170. OBrien v. Detroit Election Commn, 179 N.W.2d 19 (Mich. 1970). 171. Crestwood Sch. Dist. v. Crestwood Educ. Assn., 170 N.W.2d 840 (Mich. 1969). 172. OBrien, 179 N.W.2d at 19; Crestwood Sch. Dist., 170 N.W.2d at 841. 173. OBrien, 179 N.W.2d at 19; Crestwood Sch. Dist., 170 N.W.2d at 841.

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The Honigman & Hawkins commentary tempered the Rules expansive language for some years.174 A review of orders on applications from the late 1960s and early 1970s suggests that the court was restrained in using it.175 Peremptory rulings were issued only to expedite relief upon where the proper result was obvious (due to settled law or otherwise) or in emergencies.176 Peremptory orders accompanied grants of applications and were used to exercise supervisory powers, such as superintending control and mandamus, and to enforce procedural rights of the accused where the violation was apparent from the application.177 Occasionally the court would adopt the dissenting opinion in a published court of appeals decision as the appropriate summary disposition.178 Some cases saw sua sponte affirmance or reversal by the court immediately after it granted leavebefore briefing and argument.179 The orders often cited former G.C.R. 1963, 865.1(7), which authorized the

174. The 1977 edition of ICLEs manual on appellate practice did not even advert to peremptory decision except in the context of emergency applications and implied the courts options were to grant or deny applications. See generally JOHN J. HENSEL, APPEALS IN THE MICHIGAN COURTS (1977) (in particular, 13.05, et seq.). 175. Id. 176. One also finds a few cases during this period where no reference is made to the fact that the application for leave to appeal was being resolved summarily and no detail as to underlying trial court and unreported court of appeals rulings are given. See, e.g., Leinonen v. Houghton Circuit Judge, 384 Mich. 793 (1970) and Walli v. Houghton Circuit Judge, 384 Mich. 793 (1970) (separate applications with same attorneys for all parties summarily reversed trial court and dismissed cases); People v. Lorentzen, 384 Mich. 806, 806-07 (1971) (granting leave for defendant to appeal denial of bail bond pending appeal and ordering [t]he Oakland Country Circuit Court . . . to admit the defendant and appellant Eric Lorentzen to bail pending the determination of the appeal to this court.). 177. See, e.g., People v. Rolston, 291 N.W.2d 920 (Mich. 1974) (affirmance of double jeopardy dismissal); People v. Hopper, 381 Mich. 784 (1968) (pro se application granted and matter remanded to trial court for determination of indigency to warrant appointment of counsel); People v. Tanner, 199 N.W.2d 202 (Mich. 1972) (same grounds for grant and remand to Recorders Court for the City of Detroit); Collins v. Muskegon Circuit Judge, 384 Mich. 813 (1971) (remand to consider defendants belated appeal as of right to the court of appeals if it be shown that he had timely notified his lawyer of his desire to appeal his conviction). 178. See Travelers Indem. Co. v. Duffin, 184 N.W.2d 739, 740 (1971), revg, 184 N.W.2d 229 (Mich. Ct. App. 1970) (Decision of the Court of Appeals is reversed for the reasons given by Judge Levin in his dissenting opinion in that court, and the cause is remanded to the St. Clair County Circuit Court for jury trial within 30 days from the date of this order.). In Duffin, the trial judge had inappropriately denied the plaintiffs right to jury trial. Id. at 231-232 (Levin, J., dissenting). 179. See People v. Andriacci, 379 Mich. 791 (1967) (leave to appeal considered December 12, 1967. On its own motion, the Court directs that the Court of Appeals vacate its order of September 8, 1967. GCR 1963, 865.1(7)).

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court to issue all manner of miscellaneous relief at any time.180 (Rule 865 is subsumed into the current M.C.R. 7.316). In most cases, these summary rulings were without recorded dissents.181 In 1967, Professor Maurice Kelman noted the anomaly of peremptory orders reversing the court of appeals.182 He critiqued the supreme courts unexplained reversal in Williams v. Benson for failing to convey reasoning to the parties and the lower courts.183 In Williams, the intermediate courts published opinion wrestled with authorities from other state courts on the extent of a home-sellers obligation to disclose history of termite conditions.184 Professor Kelman wrote that the Justices had rejected out of hand . . . one of the most extensive opinions rendered to date by the immediate court. A sharper blow to the amourpropre of a court of appeals judge is unimaginable.185 The peremptory order rule was carried forward to the Michigan Court Rules of 1985 and remains in force as MCR 7.302(H)(1).186 III. THE PREVALENCE OF PEREMPTORY ORDERS IN THE RECENT DECADES After ten years of restraint in using the peremptory power from the 1964 rule changes, the court began regularly invoking it in cases where
180. MICH. CT. R. 7.316 carried forward the operative language and provides in pertinent part: The Supreme Court may, at any time, in addition to its general powers: . . . (7) enter any judgment or order that ought to have been entered, and enter other and further orders and grant relief as the case may require[.] 181. See, e.g., Burdick v. Hartwig, 196 N.W.2d 144 (Mich. 1972). 182. Maurice Kelman, Some Aspects of Discretionary Review in the United States and Michigan Supreme Courts, 46 MICH. ST. B. J. 15 (1967). 183. Id. at 21-22, (citing Williams v. Benson, 378 Mich. 721 (1966)). 184. Williams v. Benson, 141 N.W.2d 650 (Mich. Ct. App. 1966), revd, 378 Mich. 721 (1966). 185. Kelman, supra note 117, at 22. The French term amour-propre refers to ones concern for how he or she compares to others. JEAN-JACQUES, EMILE, OU DE LIEDUCATION, (ditions Sociales, 1958). Indeed, Justice John Fitzgerald, who wrote the court of appeals opinion in Williams while a judge on that court, publicly reflected years later on the sting of the supreme courts reversal without opinion. See Justice John Fitzgerald, Remarks of the Presentation of the Portrait of the Honorable Thomas Giles Kavanagh (August 30, 1994), reprinted in 447 Mich. clxxxviii (2004). 186. MICH. CT. R. 7.302 carries forward the peremptory order rule for appeals to the supreme court either before or after a court of appeals decision: (H) Decision [on application for leave to appeal]. (1) Possible Court Actions. The Court may grant or deny the application, enter a final decision, or issue a peremptory order. There is no oral argument on applications unless ordered by the Court. The clerk shall issue the order entered and mail copies to the parties and to the Court of Appeals clerk. Id.

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no emergency existedeven where the justices disagreed whether summary action was prudent.187 A. The Mid-1970s: Expanded Use of Peremptory Orders and Per Curiam Opinions Beginning in the mid-1970s, the court acted more frequently in summary fashion to reverse upon applications.188 Its rulings often carried dissents and triggered calls of foul from the bar.189 One lawyer suffered similar reversals of fortune in two of his cases.190 Having prevailed by unanimous rulings in the court of appeals in both cases, he saw them summarily reversed by the Michigan Supreme Court upon its granting the application for leave to appeal.191 Here again the orders cited G.C.R. 1963, 865.1(7).192 The losing lawyer filed motions for reconsideration in both cases, urging that the summary reversals worked a denial of due process; both were denied by unpublished orders.193 It is unclear whether this challenge to the courts authority played any role, but peremptory orders displacing the customary practice of granting leave before acting on an application quickly became a tradition of the supreme court.194 Still, the courts routine use of the peremptory power in 1975 was usually in cases where the justices were unanimous.195

187. See, e.g., infra note 234 and accompanying text. See also Kirk A. Randazzo, Informal Decision Making on the Michigan Supreme Court: Assessing Partisan Cleavages, MICH. LAWYERS WKLY. at 8, n.5 (2000) (Program for Law and Judicial Politics 2000) (citing Michigan Supreme Court Annual Reports, 1990-1999) (copy on file with author). 188. Baskin v. Boone, 223 N.W.2d 294 (Mich. 1975) (reversal on laches defense). 189. See On Appeal Applications: To the Editor, 56 MICH. ST. B. J. 742 (1977) (letters from (now-federal district judge) Avern Cohn to the editor of the Michigan State Bar Journal); J. Patrick Martin, More on Leave to Appeal: To the Editor, 56 MICH. ST. B. J. 900 (1977). 190. See, e.g., Melick v. Nauman Vandervoort, Inc., 220 N.W.2d 748 (Mich. Ct. App. 1974), revd 224 N.W.2d 280 (Mich. 1974); Sec. Systems, Inc. v. Detroit Auto. InterIns. Exch., 228 N.W.2d 779 (Mich. 1979). 191. One case involved whether the record on accelerated judgment demonstrated an accord and satisfaction. See Melick, 224 N.W.2d 280 (Mich. 1974), revg 220 N.W.2d 748 (Mich. Ct. App. 1974). The other concerned whether a corporate automobile liability insurance policy extended to a vehicle owned by an officer named in that policy. See Sentry, 228 N.W.2d 779 (Mich. 1975), revg 223 N.W.2d 708 (Mich. Ct. App. 1974). 192. See supra, note 180. 193. Defendant-Appellees Supplemental Motion for Reconsideration, at 1-2, Melick v. Nauman, Vandervoort, Inc., No. CR 13-316 (Mich. 1975). 194. See, e.g., STATE COURT ADMIN., MICH., 1975-76 REPORT 7 (1976). 195. See, e.g., People v. Lumkin, 231 N.W.2d 637 (Mich. 1975). It is possible that the court simply did not report dissenters votes.

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In 1975-1976, the courts administrator reported the justices chose to accelerate their use of peremptory orders.196 It cited a backload of applications due to growing numbers each year since the court of appeals was created: from 272 (in 1966) to 991 (in 1976).197 The report explained the courts 166 peremptory orders that year as its response to cope with the backlog: First, in lieu of granting leave to appeal and engaging in the appellate process of briefing, oral arguments and opinion writing, which is an extremely time and effort-consuming process, the Court found it necessary to adopt the practice of issuing final or peremptory orders . . . . As a consequence, the second action of the court was to request funds from the legislature to employ two more staff attorneys.198 Again in its 1976-1977 Report, the court purported to explain its move toward the aggressive use of peremptory orders.199 Citing the growth of applications (over 1000 in 1976-77) and a mounting backlog, it said that similar problems were a principal cause of the creation of the court of appeals in 1963.200 It then professed that the intermediate court had provided an immediate but not a lasting solution.201 The court announced that a change in the judicial system must be initiated to avoid a backlog of intolerable proportions and that an abbreviated procedure, authorized by Court Rule had to be employed.202 This report
196. STATE COURT ADMIN., MICH., supra note 194. 197. Id. 198. Id. 199. STATE COURT ADMIN. OFFICE 1976-77 REPORT, STATE COURT ADMINISTRATOR, MICHIGAN 8 (1977). 200. Id. 201. Id. 202. Id. The paragraph from which these quotes are drawn reads in full: Now, a further change in the judicial system must be initiated or a backlog of intolerable proportions will result. Those are the only alternatives because the Court has exhausted or come close to exhausting the means within its authority to increase its production. First, the Courts staff has been substantially enlarged to assist the Justices to the maximum extent in research, drafting and administrative tasks. What cannot be delegated is an enormous amount of reading, analysis of the facts, considerations of the assertions of the parties, and a determination of the law which is applicable in each case. Second, an abbreviated procedure, authorized by Court Rule, is used selectively to finally decide cases, whenever that is possible, consistent with the interests of justice. In this procedure cases are decided, at the initial stage, either by orders which state the reason for the decision or by per curiam opinions. This procedure avoids the time-consuming requirements for printed briefs and appendices, oral

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gave no explanation of any alternatives it claimed it had exhausted or come close to exhausting to increase its production.203 Although the report said the court had balanced interests in the matter, it did not identify the interests or how they had been weighed, or any alternatives it had considered.204 However, both of these reports did reveal how the courts commissioner helped it issue 166 peremptory dispositions in 1976 (15.6% of the courts work product) and 103 in 1977 (8.9%).205 The 1975-76 term began a period of rapid growth in the commissioners staff, more than doubling from four to ten attorneys by 1980.206 It was apparent that the commissioner had assumed a prominent role in proposing and drafting peremptory orders for the justices.207 Unlike the new court of appeals, the office of Supreme Court Commissioner was a little-known creation of the 1963 constitution.208 A series of articles over the last thirty-five years document the commissioners growing role in proposing summary orders on applications.209 The first, by clerk of the court Harold Hoag, noted that in the mid-1970s, the court was processing nearly 100 applications each month.210 The commissioners staff helped the court keep pace with its

arguments and the necessity for writing an opinion in every case. Parties and their attorneys are less satisfied with this abbreviated procedure, mainly because they do not have an opportunity to orally argue their cases to the Court. The necessitous circumstances described in this report, and a balancing of the interests the Court serves, forces the Court to its use. Id. (emphasis added). 203. Id. 204. Id. 205. Report from Corbin R. Davis, Court Clerk, on Michigan Supreme Courts Activity from 1968-83 (Aug. 1, 1983), from Papers, G. Mennen Williams, Box 28-N, (on file with the University of Michigan Bentley Historical Library) (on file with author) (including statistical summary of Michigan Supreme Courts activity from 1968-83). 206. DEPT. OF MGMT. & BUDGET, MICHIGAN MANUAL 1979-80, 164 (1980). 207. Id. 208. The new constitution required appointment of an administrator and other assistants of the Supreme Court as may be necessary. MICH. CONST. art. VI 3. In April 1964 the supreme court advertisement for the position announced its principle job duties would be reporting on applications for leave to appeal, as well as original proceedings seeking writs of mandamus and superintending control. See Advertisement for Supreme Court Commissioner, 43 MICH. ST. B. J. 23 (1964). See Thomas C. Marvin, Ignore the Men Behind the Curtain: The Role of Commissioner in the Michigan Supreme Court, 42 WAYNE L. REV. 375, 385-86 (1997) (detailing history of use of commissioners in Michigan). 209. Harold Hoag, How the Supreme Court Handles Applications for Leave to Appeal, 56 MICH. ST. B. J. 546, 546-48 (1977). 210. Id. at 546.

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growing annual workload of 2800 applications (in 1989)211 and more than 3000 (in both 1994 and 1995).212 The process for the commissioners report and recommended disposition of applications has remained basically the same since 1977.213 A report summarizes the parties positions and includes a recommended order of disposition - grant, denial, or a peremptory order or per curiam opinion.214 The reports are routed to all of the justices and if none specifically objects to the proposed order prior to its specified deadline to do so, the dispositive order issues as a matter of course.215 Upon any objection to a proposed order, the case becomes an item for the justices conference of commissioners reports.216 As a result of these articles, the critical role of commissioners in shaping peremptory orders for the court is now an open secret among appellate attorneys.217 Besides peremptory orders, summary disposition of applications frequently took the form of unsigned per curiam or memorandum
211. Patricia J. Boyle, The Michigan Supreme Court; Are we Dancing as Fast as we Can?, 74 MICH. B. J. 24, 25 (1995). Justice Boyles article took issue with another article by Professor Kelman, which criticized the low volume of opinions from the court compared to other states. Id. For Professor Kelmans article, see Maurice Kelman, Case Selection by the Michigan Supreme Court: The Numerology of Choice, 1992 DET C. L. REV. 1. When factoring in peremptory dispositions on applications, she suggested there was no disparity and that Michigan had one of the hardest working and productive supreme courts. Boyle, supra note 211, at 27-28. 212. 1995 STATE COURT ADMIN. OFFICE, MICHIGAN STATE COURTS ANNUAL REPORT & STATISTICAL SUPPLEMENT 3 (1995) (on file with author). 213. Shari M. Oberg & Daniel C. Brubaker, Supreme Court Review: Insights on the Michigan Supreme Courts Consideration of Applications for Leave to Appeal, 87 MICH. ST. B. J. 30, 31 (2008) (article by two supreme court commissioners on their role in drafting proposed orders); Marvin, supra note 208, at 385-86 (also detailing order-toenter protocol). See Theodore E. Troff, Supreme Court Commissioner, 47 MICH. ST. B. J. 17 (1968). This OTE procedure uses the work peremptory in another sense, a command to perform an act by a date certain. 214. Oberg & Brubaker, supra note 213, at 31-32. 215. Id.; Marvin, supra note 213, at 385-86; Troff, supra note 213, at 17. 216. Oberg & Brubaker, supra note 213, at 31-32. 217. See How a Case is Decided, MICH. SUPREME COURT, CLERKS OFFICE (Sept. 26, 2012, 2:30 P.M.), http://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Pages/How-a-Case-isDecided.aspx. (last visited Sept. 26, 2012) (Applications are decided by the Court on the basis of the written materials submitted by the parties . . . . Because of the large number of applications . . . an application generally remains pending for several months before a decision is reached.) Id. Another page, About the Court, Operating Procedures, describes the role of the commissioners in much the same detail as appears in the Oberg & Brubaker article, supra note 213. About the Court, Operating Procedures, MICH. SUPREME COURT, http://courts.michigan.gov/supremecourt/2003-48_02-03-05.pdf (last visited Sept. 26, 2012).

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opinions also prepared by the courts commissioner.218 These opinions are not relegated to the back of the book and their peremptory aspect may not be immediately apparent to the reader.219 These cases typically involved a unanimous court ruling on matters of injunctive relief.220 Throughout the 1970s, the court continued routine use of per curiam opinions and peremptory orders to summarily resolve applications often by reversals. On average, peremptory orders made up over 10% of the courts dispositions between 1976-1986.221 This small-but-consistent percentage reported the aggregate of all final orders unaccompanied by an opinion, i.e., including affirmances, reversals, and orders of remand; the Justices Annual Reports claimed that each such order included statements of specific reasons for the peremptory action.222 The total numbers of peremptory orders during the period were:223 1977 103 (8.9%) 1978 130 (8.7%) 1979 175 (11.6%) 1980 205 (13.5%) 1981 249 (14.5%) 1982 226 (12.5%) 1983 200 (9%) 1984 327 (13.1%) 1985 218 (9.4%) 1986 189 (7.9%)

218. Oberg & Brubaker, supra note 213, at 31-32. 219. The justices often referred to per curiam opinions as peremptory orders. Howard v. White, 523 N.W.2d 220, 225 (Mich. 1994) (Levin, J., dissenting) (dissenting from reversal of published court of appeals ruling, Justice Levin refers to majority per curiam opinion as peremptory order.). 220. See, e.g., Teamsters, State, Cnty., & Mun. Workers, Local 214, Law Enforcement Div v. Genesee Cnty. Bd. of Commrs, 258 N.W.2d 55 (Mich. 1977) (unanimous per curiam opinion finding trial courts order of reinstatement of public employee improper). 221. CORBIN R. DAVIS, REPORT FROM CORBIN R. DAVIS, COURT CLERK, ON MICHIGAN SUPREME COURTS ACTIVITY FROM 1976-1986 (1986) from Papers of G. Mennen Williams, Box 28-N (on file with the University of Michigan Bentley Historical Library) (on file with author) (including a ten year statistical summary of the supreme courts activity). 222. The courts annual reports for the period confirm this consistent statistic methodology. See, e.g., STATE COURT ADMIN. OFFICE, 1978-79 REPORT OF THE STATE COURT ADMINISTRATOR, MICHIGAN 14-15 (1979) (details on statistics which are totaled in the text above); STATE COURT ADMIN. OFFICE, 1979-80 REPORT OF THE STATE COURT ADMINISTRATOR, MICHIGAN 12-13 (1980); STATE COURT ADMIN. OFFICE, 1981-82 REPORT OF THE STATE COURT ADMINISTRATOR, MICHIGAN 9 (1982). All these reports characterized peremptory orders as stating specific reasons for the courts action. 223. See generally STATE COURT ADMIN. OFFICE, 1985 REPORT OF THE STATE COURT ADMINISTRATOR, MICHIGAN (1985); STATE COURT ADMIN. OFFICE, 1986 ANNUAL REPORT OF THE STATE COURT ADMINISTRATOR & STATISTICAL SUPPLEMENT, MICHIGAN (1986).

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The courts annual public reports confirm these orders were all in response to applications for leave to appeal, either before or after the court of appeals had ruled. The reports boasted that the more summary procedure saved twelve to twenty months time consumed by decision upon leave granted.224 But apparently some of the justices grew concerned that the peremptory orders might be an aberration among state high courts. As new chief justice in 1983, G. Mennen Williams chaired an internal debate whether peremptory rulings ought to require more than a simple majority vote.225 At an administrative conference in early 1983, the justices voted that per curiam opinions and peremptory orders would be released only when votes to issue them were unanimous.226 The Courts resolution (in March 1983) also directed the chief commissioner to report on the standards used in other states on peremptory dispositions. Apparently no such report was delivered to the Justices.227 Yet a comprehensive survey of state supreme court practices had indeed been prepared only two years before, with input from the Michigan Supreme Court.228 The National Center for State Courts published an exhausted survey of all of the states with intermediate appellate courts in 1980.229 The survey of state supreme court certiorari procedures revealed that Michigans peremptory order rule was unlike any other in the country; the invariable norm elsewhere was grant or denial of a discretionary application.230 While many other states reported using commissioners

224. See, e.g., STATE COURT ADMIN., MICH., supra note 194, at 7 (at least one year time saving). 225. Minutes, Conferences of the Justices of March 23, 1983, Item 4, 2, reprinted in Papers of G. Mennen Williams, Box 29, (on file with University of Michigan Bentley Historical Library) (on file with author). 226. Motion made and carried that [per curiam] opinions and peremptory order dispositions be released only when the vote on the case is unanimous, and that the chief commissioner report on standards in other states relating to peremptory disposition of cases. Id. 227. The courts chief commissioner confirms an extensive search for this report revealed nothing and clearly suggests the matter was not pursued. Letter from Michigan Supreme Court Chief Commissioner, to Gary M. Maveal, Professor of Law and Director of Faculty Research, University of Detroit Mercy School of Law (Apr. 7, 2010) (on file with author). 228. NATL CTR. FOR STATE COURTS, SURVEY OF STATES SUPREME COURTS WITH INTERMEDIATE APPELLATE COURTS (1980) (on file with author). 229. Id. 230. Id.

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and other staff to report on applications, not a single one authorized summary dispositions on the merits.231 In April 1983, the justices reaffirmed their new unanimity rule, confirming that commissioners would continue drafting per curiam opinions.232 Yet just months later, in August 1983, the court revisited the issue and voted that peremptory orders could be entered upon the concurrence of five justices, providing that the dissenting Justice or Justices agree that the disposition may be released over their dissent.233 In the late 1980s, Justice Levin began openly disagreeing with the courts routine peremptory rulings, frequently dissenting from such orders and per curiam opinions. He urged that summary disposition was appropriate only where the law is settled and factual assessment is not required.234 While some of these rulings affirmed of the court of appeals, Justice Levin nonetheless challenged the propriety and wisdom

231. The only state variant remotely meriting reference would be Idaho. Id. at 35. Staff attorneys there reportedly screened applications for single-issue appeals and could recommend expedited hearings where the court unanimously agreed. Id. This practice is apparently no longer followed in Idaho. See infra, Part IV. 232. Motion made and carried to continue to assign to the Commissioners the preparation of per curiam opinions disposing of [commissioner reports on applications], but only when the Justices are unanimously agreed upon the disposition. Minutes, Conferences of the Justices of Apr. 20, 1983, supra note 225, at 2. 233. Minutes, Conferences of the Justices of Aug. 17-1983, Item 1, 1, reprinted in Papers, G. Mennen Williams, supra note 205. It appears this awkwardly phrased measure was never literally read to confer a veto power to prevent a majority of fives order. 234. The following is a partial list of Justice Levins dissents from scores of such cases: People v. Wright, 479 N.W.2d 631, 631 (Mich. 1992); Roek v. Bd. of Educ. of the Chippewa Valley Sch. Dist., 422 N.W.2d 680, 688 (Mich. 1988); Grames v. Amerisure Ins. Co., 451 N.W.2d 304, 311 (Mich. 1990); People v. Little, 456 N.W.2d 237, 254 (Mich. 1990); People v. Wrenn, 452 N.W.2d 469, 470 (Mich. 1990); Harkins v. Nw. Activity Ctr. Inc., 453 N.W.2d 677, 670 (Mich. 1990); Dept of Soc. Servs. v. Am. Commercial Liab. Ins. Co., 460 N.W.2d 194, 201 (Mich. 1990); Yahr v. Garcia, 461 N.W.2d 363 (Mich. 1990); Universal Underwriters Ins. Co. v. Vallejo, 461 N.W.2d 364 (Mich. 1990); People v. Stephens, 465 N.W.2d 561 (Mich. 1991); People v. Berkey, 467 N.W.2d 6, 20 (Mich. 1991); Turner v. Washtenaw Co. Road Comm., 467 N.W.2d 4, 7 (Mich. 1991); Lepior v. Venice Twp., 467 N.W.2d 811, 812 (Mich. 1991); Rochester Hills v. Se. Oakland Cnty. Res. Recovery Auth., 486 N.W.2d 678, 679 (Mich. 1992); In re Reinstatement of Eston (Grievance Admr v. Eston), 487 N.W.2d 755,755-56 (1992); In re Reinstatement of Callanan, 487 N.W.2d 750, 750 (Mich. 1992); McFadden v. Civil Serv. Commn of Monroe, 487 N.W.2d 763, 764 (Mich. 1992); Twp. of Holly v. Holly Disp. Inc., 487 N.W.2d 753, 755 (Mich. 1992); Marzonie v. Auto Club Ins. Assn., 495 N.W.2d 788, 805 (Mich. 1992); People v. Waleed, 496 N.W.2d 284, 284 (Mich. 1992); People v. Hardison, 494 N.W.2d 740, 742 (Mich. 1993); People v. Justice, 495 N.W.2d 376, 377 (Mich. 1993); People v. Fex, 479 N.W.2d 625, 631 (Mich. 1992); People v. Morton, 377 N.W.2d 798, 806 (Mich. 1985).

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of the high courts perfunctory treatment of the issues.235 Justice Levin said that such orders belittled the court of appeals236 and that he wondered why the majority was so bent on fixing perceived errors.237 Nevertheless, the justices continued to issue nearly 200 peremptory orders each year throughout the 1990s.238 The past decade also saw the court continue to use its peremptory order power regularly on the 2000-plus applications it receives each year.239 Annual reports document that its peremptory reversals have averaged over thirty per year: 240 2002 2003 2004 2005 2006 25 32 16 35 54 2007 43 2008 40 2009 23 2010 22

Unlike their precursors before and immediately following adoption of the 1964 rule, these orders were not limited to emergency cases or mandamus claims. The peremptory tool had become a means of summary action on the merits of all applications.241
235. Justice Levin even disagreed from the practice in a case where he joined the per curiam opinion of peremptory reversal. People v. Hastings, 373 N.W.2d 533, 539 (Mich. 1985). 236. Howard v. White, 523 N.W.2d 220, 231 (Mich. 1994) (Levin, J., dissenting) (peremptory reversal of the decision of the Court of Appeals belittles its efforts, in the disposition of this case, as reflected in its carefully written published opinion[.]) (citing Howard v. White, 491 N.W.2d 625 (Mich. Ct. App. 1994)). 237. Grames v. Amerisure Ins. Co., 451 N.W.2d 304, 311 (Mich. 1990): It is perplexing that the Court should intervene in this ordinary case to send a delphic and, in light of the true basis of the circuit courts decision, an incorrect message. We see many errors-many clear errors-at the trial and appellate level that arguably have caused material injustice. . . . I do not understand what it is about this case that has aroused the Court to grant this extraordinary relief. 238. Randazzo, supra note 187, at 8 n.5. 239. Id. 240. STATE COURT ADMIN. OFFICE, supra note 212, at 3. 241. It has been noted elsewhere that peremptory orders mock the Constitutional requirement for written decisions. MICH. CONST. art. VI, 6. See Katheryn A. Watts, Constraining Certiorari Using Administrative Law Principles, 160 U. PA. L. REV. 1, 5255 (2011) (detailing history of 1962 Constitutional Convention debate on provision and citing Maurice Kelman, supra note 43). Though such a conclusory statement pays the

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B. Increasingly Common Peremptory Rulings over Dissents As the courts use of commissioners and the peremptory order rule has increased, so too have the number of published dissents to them. Summary orders and per curiam opinions on applications regularly issue over dissents of one or more justices. Per curiam opinions242 and peremptory orders243 have purported to settle difficult legal issues without consensus among the Justices. Many of these non-unanimous peremptory orders involve cases where all three members of the intermediate courts panel agreed in opinions that were published244 or unpublished.245 In such cases where the supreme courts reversal is on a 4-3 vote, the losing party had persuaded a majority of the appellate judges of the justness of his appeal. Even where the lower court
thinnest lip service to the constitutional command, the court deems its peremptory orders to be precedent. People v. Crall, 510 N.W.2d 182, 183, n.8 (Mich. 1993) (memorandum opinion rejecting the argument that a previous peremptory order was not binding precedent). The possibility for confusion in such a regime is virtually unlimited. A recent case saw a Supreme Court denial of leave to appeal carry its disavowal of prior cases, suggesting that it viewed orders denying leave as somehow precedential. People v. Washington, 772 N.W.2d 342 (Mich. 2009). 242. See, e.g,, Wilson v. Newman, 617 N.W.2d 318, 324 (Mich. 2000) (memorandum opinion). In Wilson, the losing party on the courts summary reversal, who prevailed in the court of appeals, had not filed a response to application for leave to appeal. Id. 243. See, e.g., People v. Fisher, 476 N.W.2d 889 (Mich. 1991) (J. Boyle and J. Riley dissenting) (reversing a husbands murder conviction the court of appeals had affirmed, holding victims diary ought not have been admitted under the state of mind hearsay exception). 244. See, e.g., Adama v. Doehler-Jarvis Div. of NL Indus., Inc., 353 N.W.2d 438 (1984) revg 320 N.W.2d 298 (Mich. Ct. App. 1982) (order based upon error in excluding evidence as hearsay; reversal more than two years after publication of unanimous court of appeals decision); Estate of McDowell v. Stubbs, 564 N.W.2d 463 (Mich. 1977), revg 553 N.W.2d 634 (Mich. Ct. App. 1996); Janson v. Sajewski Funeral Home, Inc., 782 N.W.2d 201 (Mich. 2010), revg 775 N.W.2d 148 (Mich. Ct. App. 2009); Berkeypile v. Westfield Ins. Co., 779 N.W.2d 793 (Mich. 2010), revg 760 N.W.2d 624 (Mich. Ct. App. 2008); People v. Kirkland, 560 N.W.2d 638 (Mich. 1997); Jones v. Chrysler Corp., 793 N.W.2d 242 (Mich. 2011), revg 792 N.W.2d 425; (Mich. Ct. App. 2010); People v. Labelle, 732 N.W.2d 114 (Mich. 2007), revg 729 N.W.2d 525 (Mich. Ct. App. 2006). 245. See, e.g., Kachudas v. Invaders Self Auto Wash, Inc., 781 N.W.2d 806 (Mich. 2010), revg No. 281411, 2009 WL 2767303 (Mich. Ct. App. May 21, 2010); People v. Kirkland, 560 N.W.2d 638 (Mich. 1997); Gee v. Arthur B. Myr Indus., Inc., 746 N.W.2d 612 (Mich. 2008); Mich. Dept. of Civil Rights v. Fashion Bug of Detroit, 702 N.W.2d 154 (Mich. 2005); Bandit Indus., Inc. v. Hobbs Intl, Inc., 620 N.W.2d 531 (Mich. 2001); Ramanathan v. Wayne State Univ. Bd. of Gov., 745 N.W.2d 115 (Mich. 2008). This last case is highly unusual: the minority of three justices in Ramanathan would have peremptorily affirmed the court of appeals ruling in all respects. Ramanathan, 480 Mich. at 1091.

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was not unanimous, reversals issued over dissents urging the majority to devote the time and trouble of granting leave before resolving significant legal questions.246 The supreme court regularly issues its terse reversals of published247 or unpublished248 court of appeals decisions by adopting the dissenting opinion below without stating what the issues were. Sometimes per curiam opinions issue over the minoritys urging that the court instead grant leave to appeal to allow full briefing of the issues. 249 Peremptory reversals frequently resolve fact-specific legal conclusions. Examples of such bare supreme court majorities reversing court of appeals findings on legal questions infused with factual nuance include: (1) Whether evidence was sufficient to support a criminal conviction;250 (2) Whether a civil rights plaintiff had established a prima facie case of employment discrimination; 251
246. See, e.g., Genaw v. Genaw, 782 N.W.2d 208 (Mich. 2010). 247. See, e.g., Dean v. Childs, 705 N.W.2d 344 (Mich. 2005) (details of fatal house fire and claims against local fire authorities not revealed by order; two justices would have granted leave and one dissented). 248. See, e.g., Manzella v. State Farm Mut. Auto. Ins. Co., 745 N.W.2d 770 (Mich. 2008); Magee v. Daimler Chrysler, 693 N.W.2d 166 (Mich. 2005), (reversing unanimous unpublished opinion of the court of appeals that plaintiff had satisfied statute of limitations, No. 243847, 2004 WL 385397 (Mich. Ct. App. Mar. 2, 2004)); Burris v. Allstate Ins. Co., 745 N.W.2d 101 (Mich. 2008) (4-sentence opinion over three dissents ruled that physician prescribed attendant care delivered by family members of insured was not an expense incurred under no-fault statute absent evidence that family members expected to be compensated for services; reversing unanimous per curiam opinion of the Court of Appeals, No. 261505, 2006 WL 2708599 (Mich. Ct. App. Mar. 7, 2008); Chambers v. Wayne Cnty. Airport Auth., 758 N.W.2d 302 (Mich. 2008), vacated 765 N.W.2d 890 (Mich. 2009); People v. Adams, 547 N.W.2d 663 (Mich. 1996); Cook v. Hardy, 708 N.W.2d 115 (Mich. 2006) (two sentence order over objections of two justices urging denial of leave to appeal); Behnke v. Auto Owners Ins. Co., 708 N.W.2d 102 (Mich. 2006). 249. See, e.g., Providence Hospital v. Morrell, 427 N.W.2d 531 (Mich. 1988). 250. See, e.g., People v. Quasarano, 512 N.W.2d 317, 317 (Mich. 1993) (The evidence was sufficient to show that the defendant carried the pistol in a motor vehicle.); People v. Pacheco, 473 N.W.2d 67, 67 (Mich. 1991) (non-unanimous order stating: A review of the record discloses sufficient evidence that the defendants conduct aided and abetted the codefendants sexual assaults upon the victim named in Count IV of the information.); People v. Mihlfield, 462 N.W.2d 752, 753 (Mich. 1990) (Our review of the record leads us to conclude that there was sufficient evidence to support the defendants conviction for negligent homicide.); People v. Wrenn, 452 N.W.2d 469, 469 (Mich. 1990) (Taken in the light most favorable to the prosecution, the proofs were sufficient to establish, beyond a reasonable doubt, that the defendant committed firstdegree criminal sexual conduct.).

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(3) Whether a pedestrian had slipped on black ice that was an open and obvious hazard;252 (4) Whether motorists had suffered a severe impairment of bodily function under the No Fault Act.253 (5) Whether there was sufficient evidence to warrant trial of a dram shop claim against a licensed establishment.254 These peremptory decisions chiefly issue in civil cases and most frequently review pretrial grant of defendants motions for summary disposition.255 The typical case is a personal or property injury action in which the trial judge grants the defendants motion for dismissal, plaintiff wins reversal in the court of appeals, and a divided supreme courts peremptorily reverses in the defendants favor.256 Non-unanimous summary decisions have frequently been even more divided with the advent of mini-oral arguments on the applications serving as a basis for per curiam opinions by a simple majority of the justices.257

251. Mich. Dept. of Civil Rights v. Fashion Bug of Detroit, 702 N.W.2d 154 (Mich. 2005) (reversing findings of racial discrimination by agency and circuit court, as well as the court of appeal affirmance based on those findings, in a six sentence peremptory opinion). 252. See Kachudas v. Invaders Self Auto Wash, Inc., 781 N.W.2d 806 (Mich. 2010), revg No. 281411, 2009 WL 2767303 (Mich. Ct. App. May 21, 2010); Janson v. Sajewski Funeral Home, Inc., 782 N.W.2d 201 (Mich. 2010), revg 775 N.W.2d 148 (Mich. Ct. App. 2009); Kenny v. Kaatz Funeral Home, Inc., 697 N.W.2d 526 (Mich. 2005). 253. Jones v. Olson, 747 N.W.2d 250 (Mich. 2008), revg No. 268929, 2006 (Mich. Ct. App. Sept. 21, 2006); Cook v. Hardy, 708 N.W.2d 115 (Mich. 2006); Behnke v. Auto Owners Ins. Co., 708 N.W.2d 102 (Mich. 2006). 254. See, e.g., Salt v. Gillespie, 777 N.W.2d 431 (Mich. 2010). 255. See generally supra notes 250-254 and accompanying text. 256. See supra notes 250-251; see also Khan v. City of Flint, 800 N.W.2d 600 (Mich. 2011) (homeowners claim of unconstitutional taking by city demolition with notice); Manzella, 745 N.W.2d at 770 (claim for uninsured motorist benefits). 257. See Cmty. Res. Consultants, Inc. v. Progressive Mich. Ins. Co., 745 N.W.2d 123, 124 (Mich. 2008). In Progressive two justices dissented and a third would have denied leave; the case involved the one-year limitation of first-party claims for no-fault automobile insurance. Id.; see also In re Estate of Raymond, 764 N.W.2d 1 (Mich. 2009). In Raymond three justices per curiam affirmed the court of appeals interpretation of language of will; two justices dissented and another concurred in the result, writing that she would have denied leave to appeal in the case. Id.

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In 2003, the court revised its internal procedures to allow summary rulings on applications by a simple majority.258 Its previous practice (since at least 1983) was that five votes were required.259 The changes to the courts internal procedures and to M.C.R. 7.302 combined to authorize the court to issue peremptory per curiam opinions by a simple majority after oral argument on an application.260 The changes also authorized peremptory orders by that mere majority if it concluded that emergency circumstances warranted.261 A sizeable part of the courts work now consists of mini-oral arguments on applications (MOAA)262 and peremptory orders or per curiam opinions regularly issued thereafter.263 One striking example saw a single-sentence peremptory
258. Michigan Supreme Court Amendment of Rules 7.302, 7.304, and 7.315 of the Michigan Court Rules, 82 MICH. B. J. 69, 69 (2003). 259. Id. 260. See id. at 69-70. The court was bitterly divided on adopting the so-called MOAA (mini-oral arguments on application) procedure. Id. Its proponents claimed it was giving parties further opportunity to inform the justices on the question of leave and any peremptory decision. Id. at 69. Justice Weaver, joined by two others, dissented from the changes, arguing that allowing simple majority rule on applications would loosen judicial restraint, facilitate judicial activism, and blur the distinction between peremptory orders and calendar cases. Id. at 70. Justice Weaver also argued the changes were unnecessary since the majority had issued increasingly large numbers of per curiam opinions on applications since 1998 under the previous procedure. Id. Justice Cavanaghs dissent accused the majority of engineering the changes to allow it to fast track applications to its desired result, the new rules would be better described as an Order to Show Cause procedure to allow the party destined to lose to argue why the trains destination is incorrect. Id. 261. Id. at 71. 262. Graham Bateman, A New Style of Oral Advocacy: Oral Argument on the Application for Leave to Appeal, 11 MICH. ST. B. APP. PRAC. SEC. NEWSL., 7, 8 (2007), available at http://www.michbar.org/appellate/pdfs/spring07.pdf (detailing statistics for the courts three preceding terms in which MOAAs resulted in summary reversal in 49% of cases). The court has began the practice of holding these arguments at courthouses around the state as a part of its public education function See Historic Centrevill Courthouse Setting for Michigan Supreme Court Oral Argument; St. Joseph Country High School Students to Study Case, Attend Oral Argument, MICH. SUPREME COURT OFFICE OF PUB. INFO. (Feb. 24, 2012), http://courts.michigan.gov/supremecourt/Press/May%2013St.JosephCountyoral.pdf (detailing application in Roberts v. Saffell, MSC No. 137749). 263. See, e.g., Burris v. Allstate Ins. Co., 745 N.W.2d 101 (Mich. 2008) (4-3 order concluding that No-Fault plaintiff had not proven that he incurred attendant care prescribed by physician but furnished by family members); Bukowski v. City of Detroit, 732 N.W.2d 75 (Mich. 2007) (court construing (5-2) in a memorandum opinion the exemption under the state Freedom of Information Act for frank communications preliminary to agency action and reversing a unanimous per curiam opinion of the court of appeals); Miller v. Chapman Contracting, 730 N.W.2d 462 (Mich. 2007) (4-3 per curiam opinion affirming dismissal of personal injury action on grounds that plaintiffs bankruptcy filing failed to name the bankruptcy trustee as the proper plaintiff, therefore

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order of reversal that failed to acknowledge how or why the appellate panels two published opinions (spanning twenty pages) were in error.264 IV. MICHIGANS PEREMPTORY RULE AND ORDERS UNIQUE AMONG THE STATES Michigans peremptory order rule is contrary to the norms of state supreme courts with intermediate courts of appeals. 265 Other high courts do not typically allow non-unanimous rulings on the merits of an
amending complaint to name trustee would not relate-back to date of original filing and thus would be futile); Sazima v. Shepherd Bar & Rest., 758 N.W.2d 270 (Mich. 2008), vacated, 762 N.W.2d 924 (Mich. 2009). 264. Dept of Transp. v. Initial Trans. Inc., 748 N.W.2d 239 (Mich. 2008) (partial summary reversal upon oral argument). In Initial Transport. Inc. two justices would have granted leave and a third dissented. Id. The issue was the effect of the federal Motor Carrier Safety Act on Michigans No-Fault Act. Id. 265. With the exception of an article focusing on two particular criminal cases, scant attention has been paid to the Michigan Supreme Courts peremptory decisions. See generally Byrne, supra note 31 (critiquing the courts peremptory orders in People v. Fluker, 498 N.W.2d 431 (Mich. 1993) and People v. Lopez, 498 N.W.2d 251 (Mich. 1993)). The bulk of academic attention has been given to analysis of the decisional practices of federal appellate courts, rather than state supreme courts. See Stephen Wasby & Martha Humphries Ginn, Triage in Appellate Courts: Cross-level Comparison, 88 JUDICATURE 216 (2005) (analogizing U.S. Supreme Court denial of certiorari and federal courts of appeals decisions not to publish opinions as similar tools to relieve docket pressures); Martha J. Dragich, Will the Federal Courts of Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 AM. U. L. REV. 757 (1995); William M. Richman & William L. Reynolds, Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition, 81 CORNELL L. REV. 273 (1996) (urging an increase in the size of the federal judiciary to reduce reliance on staff and end trends limiting oral argument and authored opinions). Of the few articles on the state level, only one compares practices among state courts. See Gerald B. Cope, Discretionary Review of the Decisions of Intermediate Appellate Courts: A Comparison of Floridas System with Those of the Other States and the Federal System, 45 FLA. L. REV. 21 (1993) (comparative analysis of discretionary review in Floridas Court of Appeals that does not touch on the question of summary decisions on applications). See Lawrence Baum, Policy Goals in Judicial Gatekeeping: A Proximity Model of Discretionary Jurisdiction, 21 AM. J. POLIT. SCI., 13 (1977) (studying U.S. and California Supreme Courts discretionary jurisdiction and concluding that justices votes on screening applications reveals ideological preferences); Ira P. Robbins, Concurring in Result Without Written Opinion: A Condemnable Practice, 84 JUDICATURE 118 (2000) (critiquing Pennsylvania and Mississippi Supreme Courts use of concurring opinions that do not endorse the result, but do not provide reasoning of lead opinion, thus depriving the public of common law development). LAURA LANGER, JUDICIAL REVIEW IN STATE SUPREME COURTS: A COMPARATIVE STUDY 19-33 (2002) (examining state supreme courts decision making with focus on judicial review of legislative enactments); John L. Sobieski, Jr., The Theoretical Foundations of the Proposed Tennessee Rules of Appellate Procedure, 45 TENN. L. REV. 161 (1978).

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application except in an emergency or obvious entitlement warranting summary action. 266 Only in such cases is it appropriate to conflate the issues of appealability and the merits.267 Most states had similar experiences in creating their intermediate courts of appeals to accommodate the criminal defendants entitlement to an appeal as of right.268 At the same time, states sought to relieve their high courts of the burden of increased volumes of criminal appeals and moved to make their supreme courts docket wholly discretionary (or nearly so).269 The National Center for State Courts documented that the new courts were to reduce the caseloads of supreme courts270 and to allow them to focus on centralized law-making and administration of justice.271 To that end, states prescribed presumptive finality to their intermediate courts decisions absent compelling grounds for supreme

266. MARTIN M. SHAPIRO, COURTS 49-53 (1981) (exploring societal uses of appeals and different roles of state intermediate and supreme courts). This is so even while heavy dockets in those courts have been cited to justify shortcuts such as rationing oral argument and published opinions. See Carl Tobias, The New Certiorari and a National Study of the Appeals Courts, 81 CORNELL L. REV. 1264, 1267-68 (1996). 267. Tobias, supra note 266. 268. William L. Reynolds, The Court of Appeals of Maryland: Roles, Work and Performance Part I, 37 MD. L. REV. 1 (1977) (recounting studies informing establish of intermediate court); Paul E. Wilson, The Kansas Court of Appeals: A Response to Judicial Need, 25 U. KAN. L. REV. 1 (1976); Kerri L. Klover, Order Opinions the Publics Perception of Injustice, 21 WM. MITCHELL L. REV. 1225, 1233-34 (1996) (expressing dissatisfaction with Minnesota Supreme Courts former practice of issuing summary affirmance on appeals as of right was background for establishment of its court of appeals in 1982, in which new court would fulfill principal role of error correction). See also Robert E. Allard, Court Reorganization Reform 1962, 36 J. AM. JUDICATURE SOCY. 110 (1962-1963) (examining methods of effecting reforms in Michigan and six other states). 269. N. O. Stockmeyer, Jr., Michigans New Court of Appeals: An Introduction, 43 MICH. ST. BAR J. 49, 49 (1964) (new court of appeals would be court of last resort for the majority of litigants); R. Groot, The Effects of an Intermediate Appellate Court on the Supreme Court Work Product: The North Carolina Experience, 7 WAKE FOREST L. REV. 548, 55354 (1971). 270. See Martin Shapiro, Appeals, 14 LAW & SOCY REV., 629, 634 (1980); G. ALAN TARR, JUDICIAL PROCESS AND JUDICIAL POLICYMAKING 43 (5th ed. 2010); PAUL D, CARRINGTON ET AL., JUSTICE ON APPEAL 150 (1976); Byrgen P. Finkleman, Further Appellate Review in Civil Cases: How the Court Decides What Cases to Take, 69 MASS. L. REV. 116, 122 (1984) (The Appeals Court was not meant to add another level to the appellate process. The Appeals Court was added to decrease the [Massachusetts Supreme Judicial Courts] case-load). 271. MARLIN O. OSTHUS, THE AM. JUDICATURE SOCY, INTERMEDIATE APPELLATE COURTS 44-70 (1976).

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court review.272 Despite this shared history, Michigans rule stands in sharp contrast with prevailing practices in the United States.273 The Appendix hereto charts the rules and statutes of the thirty-nine other states with intermediate courts of appeal. Other states invariably prescribe supreme court power only to grant or deny applications for discretionary review.274 It shows that the typical rule authorizes a simple grant or denial.275 Some state rules have allowed grant of leave by nonmajority vote of justices.276 Many allow for accelerated decision in emergency or where an extraordinary writ is justified from the application.277 Californias Supreme Court still authorizes peremptory mandamus in the rare case of genuine emergency and clear entitlement to the applicant.278 Ohios statute similarly retains peremptory mandamus.279 It appears that only one other uses the term peremptory in its rules.280 Most of those states have an all writs statute or rule, which is read to impliedly authorize summary rulings where the circumstances warrant.281 Even without such a provision, most states claim the inherent
272. This paradigm is often referred to as the Kagan model, based on Robert Kagans empirical studies of supreme courts. See Robert A. Kagan et al., The Evolution of State Supreme Courts, 76 MICH. L. REV. 961, 982-83 (1978) (documenting decrease in Michigan and other supreme courts dockets after creation of their courts of appeals); Robert A. Kagen et al., The Business of State Supreme Courts, 1870-1970, 30 STAN. L. REV. 121, 154 (1977) (tracing history of intermediate appellate courts and rise of state supreme court discretion to choose cases as important structural changes). 273. See material appended to this Article. 274. Id. 275. I had originally labeled all such grant or deny rules on the chart with the acronym NOTGOD to denote that their prescribed options are Nothing Other Than Grant Or Deny. See Charles A. Wright, The Doubtful Omniscience of Appellate Courts, 41 MINN. L. REV. 751, 779-81 (1957) (arguing that the unintended cost of increased appellate review to review justice in individual cases may be public dissatisfaction with courts); Adam M. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 TENN. L. REV. 245 (2002). 276. In New Yorks Court of Appeals, leave may be granted by votes of merely two of seven justices. N.Y. C.P.L.R. 5602(a) (McKinney 1986). Moreover, if a ruling of that states appellate division carried two justices dissenting on a point of law, the losing party has appeal as of right to the court of appeals. N.Y. C.P.L.R. 5601(a) (McKinney 1986). 277. See COLO. APP. R. 21 (2012) (authorizing show cause procedure for extraordinary writs). 278. See CAL. CIV. PROC. CODE 1088 (West 2011). See Lewis v. Superior Court, 970 P.2d 872, 893 (1999) (peremptory ruling reserved for truly exceptional casesprimarily those in which a compelling temporal urgency requires an immediate decision . . . [and] where the petitioners entitlement to relief is obvious and entirely clear under wellsettled principles of law and undisputed facts[.]). 279. OHIO REV. CODE ANN. 2731.06.10 (West 2011). 280. LA. SUP. CT. R. X(8) (2011). 281. See FLA. CONST. art. V, 3.

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supervisor power to order pre-emptive remand of a petition for discretionary review to direct a lower court to reconsider its ruling in light of a recent ruling from the supreme court.282 Kansas prescribes the remand option by rule.283 However, no other states rules emulate Michigans approach to summary decision on the merits of non-emergency application as an alternative to its grant or denial.284 While Ohio, New Jersey, and Texas rules are somewhat akin to Michigans, they are sparingly used by those courts, if at all.285 New Jerseys rule on discretionary applications plainly prescribes grant or denial as the courts options.286 Two other rules, for both of New Jerseys appellate courts, authorize summary disposition upon the grant of an application for leave to appeal287 or on appeal as of right.288 In practice however, summary dispositions are chiefly employed by the intermediate court, the Appellate Division of the Superior Court of New Jersey, where an issue is clear-cut and the lower courts ruling is patently in error.289 The cases I found where the supreme court invoked

282. The Illinois Supreme Court issues orders vacating court of appeals judgments in the exercise of its supervisory power in a wide number of criminal cases: see 863 N.E.2d 257 (Ill. 2007) (containing sixty-four orders entered on March 28, 2007 denying leave to appeal, but exercising courts supervisory authority and directing vacating of judgments and reconsideration in light of People v. Jones, 861 N.E.2d 967 (Ill. 2006)). A similar phenomenon is found at 873 N.E.2d. 931 (Ill. 2006), which begins a listing of twentyeight cases where the court similarly denied leave, but vacated the court of appeals ruling with directions to reconsider its judgments in light of People v. Vincent, 871 N.E.2d 17 (Ill. 2007). 283. KAN. R. APP. P. 8.03(i) (2012). 284. See, e.g., ALA. R. APP. P. 21 and 39 (West 1939); see generally materials appended to this Article. 285. See infra notes 286-301. 286. N. J. R. APP. P. 2:12-10 (Granting or Denial of Certification). 287. N.J. R. APP. P. 2:11-2 (Determination of Appeal on Motion for Leave to Appeal). 288. N. J. R. APP. P. 2:8-3 (Motion for Summary Disposition). 289. See GE Capital Mortg. Serv., Inc. v. N.J. Title Ins. Co., 754 A.2d 553, 560 (N.J. Super. Ct. 2000) (The summary disposition procedure is reserved for appeals whose ultimate outcome is so clear as not to require further briefs or a full record for decision. The procedure is intended to provide a pre-transcript, pre-argument opportunity for the screening of those cases involving issues which are clear-cut or which demonstrate that the decision on appeal was patently in error. Sylvia B. Pressler, CURRENT N.J. COURT RULES, R. 2:8-3(b) cmt. 2 (2000)). See also Edwin H. Stern, The 2008 Chief Justice Joseph Weintraub Lecture: Frustrations of an Intermediate Appellate Judge (And the Benefits of Being One in New Jersey), 60 RUTGERS L. REV. 971 (2008) (discussion of summary practices of intermediate courts nationally and in New Jersey).

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the rule in a non-emergency application for leave to appeal were unanimous opinions.290 Ohio Supreme Court Rule 3.6, covering discretionary applications, similarly authorizes the court to enter judgment upon the grant of jurisdiction instead of ordering briefing on the merits. 291 This rule apparently dates to 1994, but it does not appear to be cited in any published decision.292 A small handful of cases found the Ohio Supreme Court summarily reversing its court of appeals judgment upon a grant of leave in light of a recent supreme court ruling.293 Texas Rule 59.1 authorizes summary disposition upon granting a petition for further review if six of nine supreme court justices agree.294 However, the rule requires a written opinion and the court may, and apparently regularly does, order briefs on the merits before it rules.295 The Texas Supreme Courts options on petitions are different in another way: if the court believes the court of appeals judgment and statement of legal principles are correct, it is allowed to rule the petition refused,

290. In GMAC v. Pitella, 17 A.3d 177 (N.J. 2011), the court summarily modified and affirmed a decision of the intermediate court denying arbitration of a consumer class action and in A v. B, 726 A.2d 924 (1977), the court granted leave to review an order compelling disclosure of confidential information. In a third case, the supreme court cited (but did not employ) its Rule 2:11-2 in passing on a criminal appeal as of right to the supreme court, which New Jersey affords a defendant whose first appeal garners a dissent. State v. Marrero, 691 A.2d 293, 298-99 (N.J. 1997). New Jersey also uses its Rule 2:98 for expediting review in cases of bona fide emergency. See Twp. of Bridgewater v. Yarnell, 314 A.2d 367, 364 (N.J. 1974) (summary ruling on emergency review of denial of stay of proceedings) and Fields v. Hoffman, 520 A.2d 751 (N.J. 1987) (emergency election dispute where lower courts refused to place plaintiffs name on ballot, one justice dissenting). 291. OHIO S. CT. PRAC. R. 3.6(B)(2)(b) (2010) (felonies) and OHIO S. CT. PRAC. R. 3.6(3)(b) (2010) (question of public or great general interest). 292. Searches on both LEXIS and Westlaw databases turn up no such citing references and none appear in Andersons Annotated Rules Governing the Courts of Ohio 2011-12 Edition. 293. See Gray v. SK Constr. Co., 719 N.E.2d 548 (Ohio 1999) (reversing and remanding to consider new authority); Cross v. A-Best Prods. Co., 921 N.E.2d 88 (Ohio 2001) (same); Klein v. Streicher, 755 N.E.2d 88 (Ohio 2001) (same). 294. TEX. R. APP. P. 59.1 (West 1997) (If at least six members of the Court so vote, a petition may be granted and an opinion handed down without oral argument.). 295. TEX. R. APP. P. 55.1 (West 1997) (A brief on the merits must not be filed unless requested by the Court. With or without granting the petition for review, the Court may request the parties to file briefs on the merits.). See STATE BAR OF TEX. APPELLATE SECTION ,PRO BONO COMM., A GUIDE TO PRACTICE BEFORE THE SUPREME COURT OF TEXAS, 12 (2007), available at http://www.tex-app.org/sct_probono_practice_guide.pdf (After full briefing, the Court will decide whether or not to hear the case.). The Guide is found on the Texas Supreme Court website. Frequently Asked Questions, THE SUPREME COURT OF TEX. (Sept. 2012), www.supreme.courts.state.tx.us/court/faqs.asp.

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with the effect of affirming that judgment.296 Under Rule 56.1, such refusal confers the court of appeals opinion the precedential effect of a supreme court opinion.297 As a result, Texas Rule 59.1 is chiefly reserved for cases in which the court is inclined to reverse.298 In any event, summary dispositions on petitions under its Rule 59.1 are usually unanimous.299 Indeed, all thirty such reversals in 2011 were without dissents.300 These per curiam opinions of reversal are very much unlike those in Michigan in another aspect as well. In the rare case of a summary reversal upon a grant, Texas Supreme Court dissenters do not typically write opinions,301 but instead simply note their dissent. 302
296. TEX. R. APP. P. 56.1 (WEST 1997). 297. See In re Smith Barney, Inc., 975 S.W.2d 593, 596 (Tex. 1998). 298. Id. 299. See, e.g., Galveston Indep. Sch. Dist. v. Jaco, 303 S.W.3d 699 (Tex. 2010); Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Brinson Ford, Inc. v. Alger, 228 S.W.3d 161 (Tex. 2007); Flour Bluff Indep. Sch. Dist. v. Bass, 133 S.W.3d 272 (Tex. 2004); City of Arlington v. State Farm Lloyds, 145 S.W.3d 165 (Tex. 2004); Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003); K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (Tex. 2000); Yanes v. Sowards, 996 S.W.2d 849 (Tex. 1999); Koch Refining Co. v. Chapa, 11 S.W. 3d 153 (Tex. 1999); Geary v. Tex. Commerce Bank, 967 S.W.2d 836, 837 (Tex. 1988); Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex. 1998). 300. Ryland Enter. v. Weatherspoon, 355 S.W. 3d 664 (Tex 2011); Lowell v. City of Baytown, 356 S.W.3d 499 (Tex. 2011); Americo Life, Inc. v. Myer, 356 S.W.3d 496 (Tex 2011); Rolling Plains Groundwater Conservation Dist. v. City of Aspermont, 353 S.W.3d 756 (Tex. 2011); Tex. Dept of Tansp. v. Sefzik, 355 S.W.3d 618 (Tex. 2011); Hemyari v. Stephens, 355 S.W.3d 623 (Tex. 2011); Barnes v. Mathis, 353 S.W.3d 760 (Tex. 2011); Marino v. King, 355 S.W. 3d 629 (Tex. 2011); G&H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011); St Davids Healthcare Pship., LLP v. Esparza, 348 S.W.3d 904 (Tex. 2011); Barth v. Bank of Am., N.A., 351 S.W.3d 875 (Tex. 2011); Austin State Hosp. v. Graham, 347 S.W.3d 298 (Tex. 2011); AEP Tex. Cent Co. v. Pub. Util. Commn of Tex., 345 S.W.3d 60 (Tex. 2011); LTTS Charter Sch., Inc. v. Palasota, 344 S.W.3d 378 (Tex. 2011); Ganim v. Alattar, 54 Tex. Sup. J. 1260 (2011) (opinion withdrawn Mar. 30, 2012); Illoh v. Carroll, 351 S.W.3d 862 (Tex. 2011); Turtle Healthcare Grp., L.L.C. v. Linan, 337 S.W.3d 865 (Tex. 2011); Ellis v. Schlimmer, 337 S.W.3d 860 (Tex. 2011); Mitchell v. Methodist Hosp., 335 S.W.3d 610 (Tex. 2011); In re Commitment of Hill, 334 S.W.3d 226 (Tex. 2011); Burlington N. & Santa Fe R.R. v. Natl Union Fire Ins. Co., 334 S.W.3d 217 (Tex. 2011); In re C.H.C., 331 S.W.3d 426 (Tex. 2011); Nealon v. Williams, 332 S.W.3d 364 (Tex. 2011); Clark v. Sell, 332 S.W.3d 366 (Tex. 2011); Escalante v. Rowan, 332 S.W.3d 365 (Tex. 2011); Leonard v. Glenn, 332 S.W.3d 403 (Tex. 2011); Rosemond v. Al-Lahiq, 331 S.W.3d 764 (Tex. 2011); Romero v. Jacob Lieberman ex rel. Estate of Lieberman, 332 S.W.3d 403 (Tex. 2011); Reedy v. Pompa, 332 S.W.3d 402 (Tex. 2011); Pearson v. Fillingim, 332 S.W.3d 361 (Tex. 2011). 301. See Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 410-13 (Tex. 2006) (ONeil, J., dissenting). 302. See, e.g., Geochem Tech Corp. v. Verseckes, 962 S.W.2d 541 (Tex. 1998) (one dissent noted); Boyd v. American Indem. Co., 958 S.W.2d 379 (Tex. 1997) (three dissents noted).

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While the United States Supreme Courts Rule 16 allows summary disposition on petitions for writ of certiorari, such summary reversals usually enter upon its grant of certiorari and typically command a substantial majority of the Justices.303 The heyday of U.S. Supreme Court summary dispositions, which occurred during the 1960s and 1970s, has been extensively critiqued elsewhere304 and recent years have seen them used infrequently.305 Unlike Michigans practice, the U.S. Supreme Courts practice does not derive from the perversion of a rule drawn for emergencies in rules drawn to implement an intermediate court. The Michigan Supreme Courts use of peremptory orders is doubtless fueled by Michigan being one of very few courts with rules specifying error correction as a basis for its discretionary review.306 In
303. SUSAN L. BLOCH, ET AL, INSIDE THE SUPREME COURT: THE INSTITUTION AND ITS PROCEDURES 367 (2d ed. 2008); ROBERT L. STERN & EUGENE GRESSMAN, SUPREME COURT PRACTICE: FOR PRACTICE IN THE SUPREME COURT OF THE UNITED STATES 250-54 (7th ed. 1993). 304. See Ira P. Robbins, Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions, 86 TUL. L. REV. 1197 (2012); Arthur D. Hellman, Error Correction, Error Correction, Lawmaking, and the Supreme Courts Exercise of Discretionary Review, 44 U. PITT. L. REV. 795, 809-12, 821-25 (1983) (reviewing high number of summary reversals in the 1960s was chiefly under the Warren Court and analyzing forms of peremptory orders still occasionally used); Ernest J. Brown, Process of Law: Forward to Supreme Court 1957 Term, 72 HARV. L. REV. 77 (1958) (analyzing and critiquing many summary reversals based upon clearly erroneous grounds); Laura K. Ray, The Road to Bush v. Gore: The History of the Supreme Courts Use of the Per curiam Opinion, 79 NEB. L. REV. 517 (2000) (documenting much more restrained used of summary disposition by the Rehnquist Court); Stephen Wasby, The Per Curiam Opinion: Its Nature and Functions, 76 JUDICATURE 29, 32, 37-38 (1992). Justice Stevens of the U.S. Supreme Court also admitted to being convinced that summary dispositions without full briefs and oral argument were fraught with the danger of mistake. Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152-53 (1984). Justice Stevens believed summary dispositions carry a danger of short-circuiting full deliberation of the issues. See John Paul Stevens, Learning on the Job, 74 FORDHAM L. REV. 1561, 1564 (2006) (detailing cases where U.S. Supreme Court justices changed their minds on merits after having initially voted for summary dispositions). Justice Marshall wrote that they gave lawyers the wrong incentives in seeking certiorari. Montana v. Hall, 481 U.S. 400, 405-410 (1987). 305. See Michelle Friedland et al., Supreme Court Watch: Opinions of the Court by Anonymous, 34 S. F. ATTY. 38, 41-42 nn.6-7 (quoting statistics of U.S. Supreme Court summary reversals: ten in the 2005 term and four in 2006). 306. MICH. CT. R. 7.302(B)(5). Bernard G. Barrow, The Discretionary Appeal: A CostEffective Tool of Appellate Justice, 11 GEO. MASON U. LAW REV. 31, 42 n.74 (1988-89) (survey citing M.C.R. 7.302(B)(5)s erroneous and will cause material injustice as the only such error correction rule among state supreme courts with intermediate courts of appeal); Carol A. Parker, Note, Should the Michigan Supreme Court Adopt a NonMajority Rule for Granting Leave to Appeal?, 43 WAYNE L. REV. 345, 353-55 (1996) (summarizing prevailing state supreme court standards for exercise of discretionary jurisdiction).

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addition, the courts mini-oral arguments on applications seem to have been designed to facilitate more aggressive scrutiny of the intermediate court.307 While some states rules authorize review of serious legal errors, M.C.R. 7.302(B)(5) is unusual in authorizing review on clearly erroneous grounds.308 Focus on error correction is arguably not compatible with a state supreme courts role. ABA Standards for appellate courts provide that a party seeking further review beyond a first-tier appellate court should have it only if the case is one of first impression, is subject to conflicting authorities within that jurisdiction, or is important to the general public or the administration of justice.309 This distinctive aspect of Michigan practice was recently critiqued.310 Finally, Michigan Supreme Courts heavy reliance on commissioners sets it apart from other state supreme courts.311 The growth of the MSC Commissioner has been steady since 1964, when it had only two, until 1995-96, when it had nineteen.312 Since that time, the staff has been maintained at between eighteen and twenty commissioners.313 While the National Center for State Courts has not reported on the role that MSC Commissioners play, its 1998 survey suggested that only Wisconsins high court saw commissioners involved in the review and grant of

307. Victor S. Valenti, Michigan Supreme Court Mini-Oral Argument on the Application: Is This Error Correction Procedure Here to Stay?, 14 MICH. APP. PRAC. J. 3 (2010). 308. Gerald B. Cope, Jr., Discretionary Review of the Decisions of Intermediate Appellate Courts: A Comparison of Floridas System with Those of the Other States, 45 FLA. L. REV. 21, 52 n. 200 (1993) (citing five states rules, including MCR 7.302(B)(5). See John L. Sobieski, The Theoretical Foundations of the Proposed Tennessee Rules of Appellate Procedure, 45 TENN. L. REV. 161, 232-33 n. 392 (1978) (citing former G.C.R. 1963, 853.1 as one of only several authorizing double appeals for court of appeals ruling which conflict with supreme court precedents). 309. JUDICIAL ADMIN. DIV, ABA 3 STANDARDS OF JUDICIAL ADMINISTRATION, STANDARDS RELATED TO APPELLATE COURTS, 3.10(c) (1994). 310. Dawn Yeaton, Does the Michigan Supreme Court Need a Midnight Visit from the Ghost of Chief Justice William Howard Taft?, 86 U. DET. MERCY L. REV. 303 (2009). 311. The offices staff are listed by name in the following volumes of the Michigan Manual: MICHIGAN MANUAL 1965-1966 139 (1966) (two commissioners); MICHIGAN MANUAL 1969-1970 147 (1970) (three commissioners); MICHIGAN MANUAL 1975-1976 151 (four commissioners); MICHIGAN MANUAL 1979-1980 164 (1980) (ten commissioners); MICHIGAN MANUAL 1981-1982 92 (1982) (12 commissioners); MICHIGAN MANUAL 1983-1984 93 (1984) (14 commissioners); MICHIGAN MANUAL 19891990 569 (1990) (15 commissioners); MICHIGAN MANUAL 1995-1996 576 (1995) (19 commissioners). 312. See supra note 310 and accompanying text. 313. Id.

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discretionary review applications.314 Michigans nineteen supreme court commissioners dwarf the numbers of such staffs elsewhere; only Minnesota315 and Washington316 employ more than three commissioners. Despite their low profile, Michigans commissioners are a prominent feature compared to other states. V. CRITIQUE - MICHIGANS RULE AND PRACTICES ARE UNWARRANTED DEPARTURES FROM NORMS FOR STATE SUPREME COURTS Michigans unique peremptory order rule and practices are aberrations rife with potential for mischief and unfairness. Summary rulings on an applications merits, where no emergency exists, violates norms that promote judicial restraint. Given the vision for our court of appeals as a court of last resort for most litigants, there was no principled reason for the supreme court to arrogate such a broad power in 1964, or to use the word peremptory to describe it. The courts rule unwisely displaces traditions of deliberative discretionary review. The customs of full briefing, argument, and deliberation are manifestly designed to ensure soundly-reasoned judgments.317 Karl Llewellyns classic work on appellate decision-making identified the features which lend steadiness to the judicial system; chief among these are group decision making and signed opinions.318 The requirement also derives from the notion that the legitimacy of decisions is found only in the soundness of their logic and reasoning. The written opinion has long been recognized as a structural check against arbitrary authority.319 To Llewelyn, the deliberative process and resulting written
314. See CAROL R. FLANGO & DAVID B. ROTTMAN, NATL CTR. FOR STATE COURTS, APPELLATE COURT PROCEDURES 111-15 (1998) (Table 3.2 Granting of Discretionary Petitions). 315. Telephone Interview with Richard S. Slowes, Commissioner (June 21, 2011). Minnesotas Supreme Court Commissioner has a staff of four and one-half attorneys who report on applications as well as other motions, matters of attorney and judicial discipline, and workers compensation appeals. Id. 316. Washingtons counterpart has a staff of six lawyers supporting the commissioners office. See Washington State Court Directory: Supreme Court, WASH. COURTS, http://www.courts.wa.gov/court_dir/orgs/112.html (last visited Oct. 23, 2012). 317. Delmar Karlen, Appeals in England and the United States, 78 LAW. Q. REV. 371 (1962) (detailing differing emphasis on written and oral submissions in appellate courts in the U.S. and in England to promote correct legal conclusions); Burton Atkins, Interventions and Power in Judicial Hierarchies: Appellate Courts in England and the United States, 24 LAW & SOCY REV., 71, 71, 91-92 (1990) (reviewing practice before House of Lords). 318. KARL LLEWELYN, THE COMMON LAW TRADITION: DECIDING APPEALS 26-32 (1960). 319. Id. at 26.

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opinions are at the heart of the legitimacy of appellate courts, that opinions furnish an essential reckonability to the law.320 Opinions, not orders, speak to the public on the rightness (and perhaps wisdom) of the ruling and assuage parties that they have received a fair break.321 Indeed, [t]he entire appellate process is traditionally thought of as ending in a conjunction of three eventsan oral argument, a set of briefs, and a judicial opinion.322 A modern hornbook for appeals calls these features process imperatives which ensure full party participation and foster respect for judgments.323 For a court with discretionary jurisdiction, these processes also promote judicial restraint. Rules for permissive appeals do so by structuring the consideration of such applications: deliberating grant or denial is rigidly divorced from appraising the merits of the issues to be reviewed. The question whether to hear a case focuses the courts internal debate: how compelling is the applicants claim to be heard on a second appeal? 324 What should be on its agenda for decision?325 Only if leave is granted is the question presented, briefed, and decided. This twostage sequence of discretionary review separates the political question of
320. Id. at 18. 321. Id. at 26-27. 322. Frank M. Coffin, Research for Efficiency and Quality: Review of Managing Appeals in Federal Courts, 138 U. PA. L. REV. 1857, 1862 (1990) (federal circuit court of appeals judges review of book by the Federal Judicial Center). 323. CARRINGTON, supra note 270, at 7-11 (citing LLEWELLYN, supra note 318). 324. See Roger J. Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. CHI. L. REV. 211, 214 (1957) (consideration of discretionary review is major task for state supreme court); CARRINGTON, supra note 270, at 2-4, 150; DANIEL J. MEADOR ET AL., APPELLATE COURTS STRUCTURES, FUNCTIONS, PROCESSES, AND PERSONNEL (1994), DELMAR KARLEN & CHARLES W. JOINER, TRIALS AND APPEALS: CASES AND MATERIALS 450 (1971) (Chapter 11 Appeal, Part (A) - Function and Nature of Appellate Review). 325. See H. W. PERRY, DECIDING TO DECIDE: AGENDA SETTING IN THE U.S. SUPREME COURT (1991). Professors Carrington and Cramton have examined the group dynamic in the U.S. Supreme Court on certiorari deliberations as unlike a group deliberating the merits: The Court generally exercises its power to choose cases without any of the amenities of a judicial process, that is without collegial deliberation, welldefined rules, precedential constraint, or public accountability. It is widely observed that the process of case selection is hopelessly indeterminate and unilluminating. This unrestrained power is exercised largely in the privacy of chambers; ideological and strategic considerations abound. For all these reasons, the process bears scant resemblance to the traditional judicial task of actually deciding cases on their merits. Paul D. Carrington & Roger C. Cramton, Judicial Independence in Excess: Reviving the Judicial Duty of the Supreme Court, 94 CORNELL L. REV. 587, 606 (2009) (proposing Congress constitute separate judicial body to decide petitions for certiorari).

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agenda setting from the subsequent engagement of the merits of the issue presented. In Michigan on the other hand, the supreme court is open to ruling on the merits of applications. Its peremptory order rule collapses consideration of the two discrete questions: appeal-worthiness of an issue and the outcome upon deciding that issue. This summary process would surely confound those who had worked for decades designing Michigans One Court of Justice.326 The courts practice on applications for leave to appeal by grant or denial had followed the prevailing model before the peremptory order rule was adopted in 1964.327 Since their first codification in 1931, well before most parties had a right of appeal, the courts rules authorized simple grant or denial as its options on an application. Emergency cases and prerogative writs were exceptions to the custom of restricting the courts initial consideration to the importance of the issue to be reviewed. The Sunderland Report had documented that other state supreme courts burden with hundreds of applications and the report from Professor Joiners Joint Committee had shown a similar burden on our own court had with them on top of its mandatory docket of appeals in the 1950s.328 Both studies contemplated the court would assume a new role upon the creation of the court of appeals. As discussed in Part II, the blueprint for a three-tiered system in Michigan anticipated that the new courts handling of appeals as of right would free the supreme court to selectively review only the most important issues of state law.329 The discretionary jurisdiction would restrict the supreme court to the most important cases and protect litigants from their costly impulse to continue litigation beyond the point necessary to assure that the imperatives of appellate justice have been obeyed.330 Court of appeals judgments ought be final unless they satisfy one of the grounds warranting a second appeal.

326. MICH. CONST, art. 6, 1. 327. See supra note 69 and accompanying text. 328. See supra Part II.B. In 1956, 346 applications were filed with the Michigan Supreme Court and 276 were disposed of. See also Stockmeyer, supra note 104, at 849; FINAL STATE BAR OF MICH., REPORT: JOINT COMMITTEE ON MICHIGAN PROCEDURAL REVISION, JUDICIAL ADMINISTRATION AT THE APPELLATE LEVEL MICHIGAN 9-10 (1959). 329. See infra Part II.B.1. 330. CARRINGTON, supra note 270, at 150.

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A broad rule for summary decision for an application is patently inconsistent with their design.331 Professor Sunderland had warned that establishing an intermediate appellate court would require a commitment to entrust its rulings as final in most cases.332 The justices generally abided by this critical systemic concern in the first years of the court of appeals existence: If a bi-level appellate system is to work, it is necessary for the Supreme Court to resist the temptation, always present among men trained in the law, to become involved in the fascinating work of the trial and intermediate appellate courts . . . [T]he Supreme Court has the power to reconsider every intermediate appellate court decision, but it does not have the capacity to do so in terms of manpower and time limitations.333 Obviously, this temptation to revisit the issues through a second appeal is present in many applications to the Michigan Supreme Court which urge the clear error and material injustice standard suffices for discretionary review.334 But why ought the supreme courts deliberation whether or not to review a judgment of the new appeals court carry a power to resolve the underlying question without briefing? Such a truncated process would hardly improve on the supreme courts former practices and process afforded parties who, before 1965, had no first appeal as of right. Consideration for the new intermediate courts role surely counseled that summary decisions on the merits of an application continue to be reserved for those cases presenting emergencies, injunctions, and the like.335
331. The only relevant passage from the record of the 1961 Constitutional Convention suggests that peremptory rulings were not at all contemplated to be a part of applications for leave to appeal. One delegate to the Convention spoke to the issue this way: Now another misapprehension is that the supreme court is going to give a decision on the merits in one paragraph. They would have to be absolutely asinine to do that. They will not give a decision on the merits for the reason that it hasnt got to the merits yet. All they will do is decide whether they are going to hear the case. That is the only decision they will make. See Yeaton, supra note 310, at 315 (quoting Delegate Melvin Nord). 332. CURRAN & SUNDERLAND, supra note 88, at 186. 333. People v. Tyrer, 189 N.W.2d 226, 227-29 (Mich. 1971) (T.E. Brennan, J.) (dismissing grant of leave to appeal as improvident for a unanimous court). 334. MICH. SUP. CT. R. 7.302(B)(5). 335. As noted earlier, that committees proposed rules included a peremptory order provision only for emergency appeals. STATE BAR OF MICH., FINAL REPORT OF THE JOINT COMMITTEE ON MICHIGAN PROCEDURAL REVISION, PART III, PROPOSED RULE 80.6.4 290 (1960) (on file with author).

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By appropriating the emergency grounds into an all-purpose power to summarily reach the merits of all applications in 1964, the supreme court abandoned its own tradition of judicial restraint. The court may have expanded its powers out of anxiety about an increasing workload. Or were the justices skeptical of the intermediate courts abilities before it even began its work? Whatever the reasons for the rule, there was no precedent or apparent logic supporting such broadened authority. It could not rationally be seen as a necessary adjunct for the nascent court of appeals. More fundamentally, peremptory action on the merits has no legitimate place in a rule on non-emergency application for discretionary review. The word peremptory conveys (at the least) self-assurance and authority plainly inconsistent with the expectation that cases presented for discretionary review present plausible grounds for debate. Peremptory judgment traditionally referred to the finality of prerogative writs.336 Peremptory mandamus was reserved for cases where the claimants right to it was apparent, where the case is free and clear from doubt or is so obvious that no purpose could reasonably be served by plenary consideration of the issue.337 In all legal usage, the term connotes commanding with finality, e.g., a partys unfettered challenge to a juror338 or a trial courts power to direct jurors to return a certain verdict under pain of contempt.339 The word is awkward at best in describing the non-emergency exercise of discretionary power in cases that have already had a full airing on a first appeal as of right. By whatever name, summary action on an application is doubtless legitimate in some cases, e.g., to rebuke and restrain a public official (including a lower court judge) from acting contrary to law. It is also proper to address an urgent cause or where the error presented is obvious. For example, challenge to a scheduled election or ballot question may present an easy case for dispatching with the ordinary
336. The most prominent statutory usage of the term peremptory mandamus predated the Revised Judicature Act of 1961 by over 100 years. See MICH. COMP. LAWS 15188, 15191, 15145 (1929); MICH. COMP. LAWS 636.5, 636.8, 647.27 (1929). State officers were long subject to the supreme courts peremptory mandamus and to pay costs to the plaintiff procuring the same. See MICH. COMP. LAWS 1929, 15188, 15191, 15145 (1929); MICH. COMP. LAWS, 636.5, 636.8, 647.27 (1929). The term dates to at least 1857. MICH. COMP. LAWS 5321 (1857). 337. 52 AM JUR 2D, Mandamus 456 (2011) (citation omitted). 338. See George C. Christie, An Essay on Discretion, 1986 DUKE L. J. 757 (1986) (detailing history of peremptory challenges in the United States). 339. See The Power of a Court to Compel a Jury to Render Its Verdict in Accordance with a Peremptory Instruction, 10 MICH. L. REV. 300 (1912); Commander v. Provident Relief Assn, 102 S.E. 89 (Va. 1920), reprinted in 6 VA. L. REG. 264.

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customs of full dress treatment to an appeal.340 Similarly, challenges to settled law should not delay the start of fall classes, despite pending appeals by school teachers whose strike violates state statute.341 Indeed, urgent public questions can justify peremptory ruling even where the justices are not unanimous. In addition, peremptory orders of remand are also a valuable tool to resolve cases that have been stayed pending the supreme courts decision of an identical issue342 or to remand a case with directions for reconsideration in light of a recent precedent on the same or related issue.343 Such orders are customarily unanimous, but not always so.344 A review of rules of other state supreme courts confirm that unless summary action is justified in one of these ways, it is inconsistent with the courts role on an application for discretionary appeal. Honigman & Hawkins treatise said the 1964 peremptory order rule was to be read narrowly, i.e., necessarily qualified as limited to exigent or one-sided case.345 They did so because its literal meaning was so plainly at odds with Michigan practice and fraught with potential for abuse. From 1965-74, the courts restrained use of the power was an acknowledgement that the authors had correctly identified the rationale for the rules language. The courts announcement in 1976 of its new aggressive use of such orders furnished no detail, beyond volume of applications, why it had concluded that the court of appeals was not a permanent solution to alleviate its own workload. As a tool that largely abandons briefing and subordinates deliberative processes, such a use of peremptory power impairs a core aspect of supreme review. Resolving

340. OBrien v. City of Detroit Election Commn, 179 N.W.2d 19 (1970), overruled by Young v. Edwards, 207 N.W.2d 126 (Mich. 1973). 341. See Crestwood Sch. Dist. v. Crestwood Educ. Assn., 170 N.W.2d 840 (Mich. 1969). 342. Detroit Bldg. Auth. v. Wayne Cnty. Treasurer, 738 N.W.2d 766 (Mich. 2007), rehg den, 745 N.W.2d 781 (Mich. 2008), cert. denied sub nom, Mich. Fin. Invs., L.L.C. v. Detroit Bldg. Auth, 555 U.S. 828 (2008) (peremptory reversal after decision in In re Petition by Treasurer of Wayne Cnty. for Foreclosure, 732 N.W.2d 458 (Mich. 2007). 343. See, e.g., Richard v. Schneiderman & Sherman, P.C., 807 N.W.2d 324 (Mich. 2012) (remand in light of Residential Funding Co., LLC v. Saurman, 805 N.W.2d 183 (Mich. 2011)); Mitchell v. State Emps. Ret. Sys., 807 N.W.2d 311 (Mich. 2012) (remand in light of Nason v. State Emps. Ret. Sys., 801 N.W.2d 889 (Mich. Ct. App. 2010)); McGee v. City of Warren, 807 N.W.2d 315 (Mich. 2012). 344. But see, e.g., Schneiderman & Sherman, P.C., 807 N.W.2d at 325 (Justice Marilyn Kelly stating she would have granted leave to appeal). 345. HONIGMAN & HAWKINS, supra note 168, at 256.

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merits on an application without group consensus is a short-cut that violates the basic tenets of a deliberative court.346 Indeed, Chief Justice Colemans State of the Judiciary Message admitted as much in 1979.347 She confessed that in coping with docket pressures, the court had cut some procedural corners in using peremptory orders.348 The court has too often compounded its abuse of the peremptory order rule where a simple majority of justices summarily resolve the merits of an application. If a party has not persuaded all seven justices that the issues presented are so obviously meritorious (or meritless), that further briefing would be superfluous, there is no principled reason to depart from appellate process designed to restrain intervention after an appeal as of right. Where the intermediate court has struggled to a conclusion on an issue, there is no systemic interest in a divided supreme court summarily substituting its majoritys views. In cases where the court reverses a unanimous court of appeals decision,349 it often illustrates the spectacle Professor Sunderland had described: a losing party whose argument had nonetheless persuaded the majority of all appellate judges to hear it.350 Peremptory orders by a simple majority of justices raise an irrational double standard between our two appellate courts. By separate rule, the
346. See Christopher J. Peters, Adjudication as Representation, 97 COLUM. L. REV. 312, 336 (1997) (describing value of deliberation in democratic government generally: clash of differing, even opposing interests and ideas in the process of decisionmaking); JOHN RAWLS, POLITICAL LIBERALISM 6, 231-38 (1993) (viewing U.S. Supreme Courts examination of constitutional issues as critical government function of public reasoning). 347. MICH. STATE COURT ADMIN. OFFICE, STATE COURT ADMINISTRATOR, FINAL REPORT 10 (1978-1979). 348. Id. In explaining the supreme courts work to stay abreast of filings and administrative work, the Chief Justice said: We have enlarged staff, cut some procedural corners, resorted to such expediencies as seemed proper and consistent with our concept of duty . . . . Id. In its context this message prefaced the courts report two pages later citing G.C.R. 1963, 852.2(4)(g) and 853.2(4) and their more summary procedure than granting leave on an applicationthe reference to practices under the peremptory order rule is unmistakable. Id. at 12. 349. See supra notes 242-243. 350. See supra Part II.B.1. Professor Robert Leflar likewise warned against routine review of courts of appeals rulings that were not unanimous: [A] loserss simple objection that the intermediate decision is wrong does not constitute a valid ground for additional review . . . [A]ssuming that the nature of the issue does not call for top-court determination, the pragmatic answer is that from the point of view of the loser one appellate court is as likely to be wrong as another. ROBERT A. LEFLAR, INTERNAL OPERATING PROCEDURES OF APPELLATE COURTS, 76 (1976).

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Michigan Court of Appeals cannot itself grant a motion for peremptory reversal, with or without full briefing, unless its three members are unanimous.351 This provision was added in 1977 as a prophylactic measure to protect the parties from a too hasty resolution by the court of appeals of an appeal as of right.352 Other than an urgent need for a ruling, what possible rationale would justify a less-than-unanimous reversal by the supreme court of a court of appeals ruling? Where the peremptory ruling takes the form of a non-unanimous per curiam opinion, it is a truly incongruous device. The phrase per curiam literally means by the court, i.e., by the entire court as opposed to a single judge or justice.353 Per curiam opinions were traditionally reserved for cases that were so clear-cut under existing law that extended discussion is not considered necessary.354 In addition, it was long restricted to cases where the judges were unanimous that there was only one outcome on the question.355 Intermediate appellate courts have long since adopted per curiams as a necessary device to deal with reaching decisions on increasing caseloads.356 Yet traditional limits have been ignored here as well; the Michigan Supreme Court per curiam opinions with dissents are now commonplace. The courts peremptory practices occasionally moved Justice Levins colleagues to dissent as well357 and nearly all recent justices have
351. MICH. CT. R. 7.211(C)(4) (West 2010) (authorizing appellant in the court of appeals to file a motion for peremptory reversal on the ground that reversible error is so manifest that an immediate reversal of the judgment or order appealed from should be granted without formal argument or submission). The rules requirement of unanimity was added by amendment in 1997. See Supreme Court Administrative Order 96-13; MICH. CT R. 7.204, 7.205, 7.211, 7.212, 7.215, amends.; Repeal of Administrative Order 1994-4 (1997). 352. See Brian Shannon, Shannons Soapbox, 6 MICH. ST. B. APP. PRAC. SEC. NEWSL., 6, 9 (2000), available at http://www.michbar.org/appellate/pdfs/fall00.pdf. 353. BLACKS LAW DICTIONARY (5th ed. 1979). See Robbins, supra note 304. 354. 21 C.J.S. Courts 170 (1990). 355. See 20 AM. JUR. 2D Courts 39 (1995) (Where all the judges of a court agree on the opinion and the question involved is clear, the court may issue a per curiam opinion with limited discussion of the issue in the opinion). 356. B.E. WITKIN, MANUAL ON APPELLATE COURT OPINIONS 254 (1977) (such opinions proper and desirable to enable appellate courts to reach common ground among diverse views of judges). 357. Justice Boyle frequently dissented from peremptory reversals, citing the jurisprudential significance of the questions presented. See Gruet v. Total Petroleum, Inc., 463 N.W.2d 711 (Mich. 1990) (dissenting from peremptory reversal of court of appeals); People v. Fisher, 476 N.W.2d 889, 890 (Mich. 1991) (dissenting from peremptory reversal of court of appeals and award of new trial). Justice Griffin adopted Justice Levinss aversion for the practice in Maner v. Ford Motor Co., 502 N.W.2d 197, 198-99 (Mich. 1993). See also Brigham v. Marks, 409 N.W.2d 209, 209 (1987) (Archer, J., dissenting), Mills v. Frank Food Equip., Inc. 414 N.W.2d 888, 888 (Mich. 1987) (Archer,

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expressed reservation in dissenting from peremptory orders of vacatur or reversal or in urging the court to simply grant or deny an application. Their critiques have cited the imprudence of summary action without full briefing358 and the unfairness and lack of principle in unexplained orders.359

J., dissenting); State v. Campbell, 405 N.W.2d 879, 879 (Mich. 1987) (Archer, J., dissenting). As a court of appeals judge, Justice Reilly condemned such orders. See, e.g., Lee v. City of Utica, 269 N.W.2d 267, 269 n.2 (Mich. Ct. App. 1977) (Riley, J., dissenting) (such terse orders risk running afoul of constitutional requirement for written decisions and reasons; [o]therwise, justice unexplained is surely justice denied.). 358. See Wilson v. Newman, 617 N.W.2d 318, 322 (Mich. 2000) (Cavanaugh, J., dissenting) (Perhaps argument and briefing would lead me to the conclusion that the restatement is inconsistent with existing Michigan law, but at this point, I see only a number of cases that can be distinguished. The question is not well settled, and should not be resolved so summarily.); Genaw v. Genaw, 782 N.W.2d 208, 209 (Mich. 2010) (Kelly, J., dissenting) (The majority has hastily accepted the dissenting opinion [of the court of appeals] as correct without the benefit of full briefing or oral argument); Shields v. Shell Oil Co., 621 N.W.2d 215, 216 (Mich. 2000) (Markman, J., dissenting) (In my view, this case is a significant one and merits a grant so that we may more thoroughly and deliberately consider these unaddressed and unanswered questions.); Martin v. Rapid Inter-Urban Transit Pship., 740 N.W.2d 657, 658-59 (Mich. 2007) (Corrigan, J., dissenting, Taylor, J., concurring in dissent) (arguing that peremptory order did not adequately address question presented); People v. Sessions, 712 N.W.2d 718, 719 (Mich. 2006) (Weaver, J., dissenting) (I would grant leave to appeal to hear full argument on this question of major significance to the states jurisprudence.); Sessions, 712 N.W.2d at 719 (Kelly, J., dissenting) (Despite having considered this case for nearly a year, the Court is unable to resolve the issue raised by the parties. Hence, the majority has resorted to peremptorily reversing the court of appeals judgment on an issue on its own creation. The parties never raised this issue and have not been given the opportunity to address it.); Findley v. Daimler Chrysler Corp., 805 N.W.2d 833, 834 (Mich. 2011) (Hathaway, J., dissenting) (Having reviewed the limited briefing and having heard limited oral argument, I would grant leave to appeal because I believe that the Court would benefit from plenary review of the issues before rendering a decision.). 359. See, e.g., People v. Waterstone, 783 N.W.2d 314, 315-19 (Mich. 2010) (Young, J., dissenting) (The order . . . is intentionally and artfully obscure. It cursorily reverses the Court of Appeals decision and fails to offer a scintilla of rationale for the majoritys decision . . . [it] does not explain why the court of appeals analysis was erroneous); Jones v. Olson, 747 N.W.2d 250, 250-51 (Mich. 2008) (Cavanagh, J., dissenting, Weaver, J. and Kelly, J. concurring in the dissent) (I must also note my disagreement with this Courts recently evidence proclivity for reaching out to overturn this states lower courts, especially when they diligently and faithfully apply this Courts binding precedent as the Court of Appeals did in this case. . . . The majority order simplistically states the basis for its holding . . . The order contains no further discussion or analysis supporting or explaining its conclusion.); Davis v. Forest River, 760 N.W.2d 215, 21516 (Mich. 2008) (Cavanagh, J., dissenting), vacated, 764 N.W.2d 278 (Mich. 2009) (I dissent from the majoritys hasty dispatch of this case through an order. I find this disposition wholly inadequate given the complexity of the jurisprudentially significant

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This Articles focus is on the history and comparative aspects of the rule. It leaves for another a thorough statistical and qualitative assessment of peremptory decisions and their consequences. What are the effects of peremptory orders on the administration of justice in Michigan? Assessing the costs and benefits of the courts rule and practices requires thorough examination of some obvious concerns. First, by inviting routine motions for peremptory reversal, has the court contributed to its increasing caseload? Since the supreme court explicitly acknowledged more aggressive use of such orders in 1975, motions seeking peremptory reversal have become a common part of applications. The open invitation to parties to pursue a second appeal by application for leave adds cost, delay, and uncertainty to all concerned. While the cost of this second appeal to a loser on the appeal as of right is nominal, its burden on the justices is not.360 Although the supreme court has continually cited the court of appeals existence as the source of its full docket of applications, it may be that the supreme courts routine use of peremptory reversal makes a second appeal much more attractive to litigants. The courts regular use of peremptory orders may actually exacerbate its own workload. Relatedly, peremptory orders may hamper the court of appeals in fulfilling its role by undermining its deliberative processes and the finality of its decisions. By routinely engaging in error-correcting peremptory orders, the court has departed from its professed selectivity and encouraged attorneys to counsel clients to seek further appeal rather than abide by a court of appeals mandate.361 It may also be that intermediate court judges may be less inclined to strive for unanimity in decision where the supreme court actively cites dissenting opinions as the basis for its peremptory orders.362 In the worst of all possible cases,

issues on which this Court granted leave to appeal. The order is so unclear that I am unable to detect whether I disagree with its holdings, let alone its reasoning.). 360. Some justices read each and every application for leave to appeal in addition to the reports on them. As Chief Justice, Marilyn Kelly stated that she personally reviewed each application for leave to appeal and, with the help of her clerks pour[ed] over each one. Interview with Chief Justice Marilyn Kelly, Michigan Supreme Court (May 12, 2009), available at http://www.ocjblog.com/?p=1259. Chief Justice Young introduced a session of a MOAA in People v. Richardson, 794 N.W.2d 830 (2011) on the application by telling the audience the justices were so prepared. 361. See Richard Nobles & David Schiff, The Right to Appeal and Workable Systems of Justice, 65 MOD. L. REV. 676, 681 (2002) (examining English practice and inherent tension between dual goals of: (1) enabling intermediate courts by conferring finality on their decisions; and (2) reserving effective supervisory controls to the high court). 362. See Andrew F. Daughety, Speaking up: A Model of Judicial Dissent and Discretionary Review, 14 SUP. CT. ECON. REV. 2 (2006).

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summary decisions may lead to public perception that the courts accelerated judgments are motivated by politics or ideology. VI. CONCLUSION The Michigan Supreme Courts 1964 rule on peremptory orders unjustifiably arrogated an extraordinary power. Summary action upon a request to review court of appeals decisions was never recommended as a desirable feature of Michigans appellate system.363 Sound tradition limited peremptory decision-making to cases presenting genuine emergencies or legal errors obvious to the full court at first blush.364 In practice, peremptory orders have too frequently been used as a tool for simple majorities of the court to short-circuit the process of discretionary review.365 Perfunctory reversals by peremptory order (over dissent) carry the obvious danger that they be perceived as overreaching by the justices. Debate on the wisdom of the peremptory rule did not precede its emergency adoption in 1964. In addition, the court did not articulate a cogent rationale for its expanded use of the rule beginning in the mid1970s.366 The court should engage in a debate on its rule and the bar should urge it to candidly study the practical effects of peremptory orders on the administration of justice. Other states have not seen the rule as a desirable feature to emulate for their supreme courts.367 National norms suggest that, at a minimum, the Michigan Supreme Court should revise the rule by deleting the word peremptory and to allow instead summary reversal on an application only in cases of bona fide emergencies or upon unanimous vote of the justices.

363. 364. 365. 366. 367.

Supra Part II.B. See supra notes 352-54 and accompanying text. See supra note 257 and accompanying text. See supra notes 196-204 and accompanying text. See supra notes 272-73 and accompanying text. See also Appendix.

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SUPREME COURT RULES ON GRANT OR DENIAL OF APPLICATIONS, EMERGENCY AND WRIT PROVISIONS

Alabama

Alaska

Arizona

Arkansas

California

ALA. R. APP. P. 39(a), (f): Petitions for writ of certiorari ALA. R. APP. P. 21, 39(J): (mandamus and emergency) ALASKA R. APP. P. 303-305: Petitions for Hearing ALASKA R. APP. P. 403(f): Petitions for Review ALASKA R. APP. P. 405: (writs of mandamus, etc.) ALASKA STAT. 22015.010(e): (all writs provision) ARIZ. R. CIV. APP. P. 23(f), (h)-(i): Petition for Review; ARIZ. R. CIV. APP. P. 29(f) Accelerated review ARIZ. R. CRIM. P. 31.19 (f), (h)-(i): Petition for Review 17A ARIZ. REV. STAT. ANN., SUP. CT. R. 1 (original writs) ARK. SUP. CT. R. 1-2(e), 2-4: Petition for review ARK. SUP. CT. R. 6-1: Extraordinary writs; expedited consideration CAL. R. CT. 8.500, 8.512: Petition and Orders for Review, respectively CAL. R. CT. 8.485, et seq: (writ procedures) CAL. CIV. PROC. CODE 1088: (peremptory writ of mandate)

476 Colorado

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Connecticut

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Kansas

COLO. APP. R. 54: Orders Granting or Denying Petition for Certiorari COLO. APP. R. 21: (mandamus, injunction, etc.) CONN. R. APP. P. 84-1, 84-8: Petition and Certification for Review CONN. GEN. STAT. ANN. 51-199(d): (all writs provision) FLA. R. APP. P. 9.120: Discretionary Proceedings to Review FLA. R. APP. P. 9.030(a)(2), 9.100 (original writ procedures) GA. CT. APP. R. 34: Applications for Discretionary Appeal GA. CT. APP. R. 40: Certiorari GA. CODE ANN. 5-6-35: Grant or denial of application for review HAW. R. APP. P. 40.1(g)-(h): A pplication / Determination of Writ of Certiorari HAW. REV. STAT. ANN. 602-5: (all writs provision) IDAHO APP. R. 118: Petition for review by the Supreme Court IDAHO APP. R. 120: Review on initiative of Supreme Court IDAHO CONST. art. V, 9; IDAHO CODE ANN. 1203: (writs necessary or proper) ILL. SUP. CT. R. 315: Petitions for leave to appeal ILL. SUP. CT. R. 383: Motions for supervisory orders IND. R. APP. P. 58: Grant or denial of petition for transfer IND. ORIGINAL ACTION RULE 5: Mandamus IOWA R. APP. P. 6.106(f), (g): Applications for discretionary review (2010) IOWA R. APP. P. 6.107: Original certiorari proceeding IOWA R. APP. P. 6.1001: (necessary and proper writs) KAN. R. APP. P. 8.03(f)-(g), (i): Petition for Discretionary Review

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MICHIGAN PEREMPTORY ORDERS KAN. STAT. ANN. 60-801-803: (writs including mandamus)

477

Kentucky

Louisiana

Maryland Ct. of Appeals

Massachusetts

Michigan Minnesota

Mississippi

Missouri

Nebraska

KY. R. CIV. P. 76.20(9): Motion for Discretionary Review KY. CONST. 110: (all writs provision) LA. SUP. CT. GEN. ADMIN. R. PT. G. 10: Applications for Writ of Review (Section 8(a): At time writ granted, court may order peremptory relief LA. CONST. art. 5, 2 (all needful writs provision) MD. R. A. CT. & SPEC. A. 8-303(f): Petition for writ of certiorari - Disposition MD. CODE ANN. CTS. & JUD. PROC. 12-201, 202 & 203: Certiorari grant or deny MASS. R. APP. P. 27.1(e): Application for Further Appellate Review MASS. GEN. LAWS ANN. ch. 212 5: Discretionary Jurisdiction MCR 7.302(H)(1), 7.316 MINN. R. CIV. APP. P. 117: Petition for Review of court of appeals decisions MINN. R. CIV. APP. P. 120: Mandamus and prohibition MINN. STAT. ANN. 480A.10: Authorization for further review MINN. STAT. ANN. 480.04: All writs MINN. R. CIV. APP. P. 120: Suspension of rules MISS. R. APP. P 17(e): Review of Decision by Court of Appeals on Certiorari MISS. R. APP. P 21: Mandamus, prohibition, and other writs MO. SUP. CT. R. 83.04: Transfer to Supreme Court after opinion by ct. of appeals MO. SUP. CT. R. 84.24: Writ procedures NEB. APP. R. 2-102(f)-(g): Petitions for further review in the Supreme Court

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New Mexico

New York

North Carolina North Dakota Ohio

Oklahoma

Oregon

Pennsylvania

South Carolina

N.J. R. APP. PRAC. 2:12 Appeals on Certification to the Supreme Court N.J. R. APP. PRAC. 2:12-10: Granting of Denial of Certification N.J. R. APP. PRAC. 2:9-8: Temporary Relief in Emergent Matters N.M. R. APP. P. 12-502: Certiorari to the Court of Appeals N.M. STAT. ANN. 34-5-214: Review by certiorari to the Court of Appeals N.M. APP. R. 12-504: Extraordinary writs 22 N.Y.C.R.R. 500.20: Criminal leave applications (referred to single judge) 22 N.Y.C.R.R. 500.22: Motions for permission to appeal in civil cases 22 N.Y.C.R.R. 500.25: Emergency matters; Orders to show cause N.C. R. APP. P. 15: Discretionary Review on Certification N.C. R. APP. P. 21: Certiorari N.D. CENT. CODE 27-02.1-06 N.D. R. APP. P. 21: Supervisory Writs OHIO SUP. CT. PRAC. R. 3.6(3): Determination of Jurisdiction on discretionary appeals OHIO SUP. CT. PRAC. R. 10: Original actions, including mandamus OHIO REV. CODE. ANN. 2731.01-.16: Mandamus OKLA. SUP. CT. R. 1.178 - 1.181: Review by the Supreme Court on Certiorari OKLA. CONST. art. 7, 4: Supreme Court omnibus writs provision OR. R. APP. P. 9.05 9.20: Petitions for Supreme Court review OR. R. APP. P. 11.05: Mandamus PA. R. APP. P. 1112-1123: Petition for allowance of appeal PA. STAT. ANN. 726: Extraordinary jurisdiction (immediate public importance) S.C. APP. CT. R. 242: Certiorari to the Court of Appeals S.C. CODE ANN. 14-3-310 (omnibus writs provision)

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Texas

Utah

Virginia

Washington

Wisconsin

TENN. R. APP. P. 11: Appeal by Permission to the Supreme Court TENN. R. APP. P. 11: Extraordinary appeals TENN. CODE ANN. 16-3-201: (all necessary orders provision) TEX. R. APP. P. 53, 56: Petitions for Review and orders thereon TEX. R. APP. P. 67-68: Order on Petition for Review (criminal) TEX. R. APP. P. 52: Original proceedings (including mandamus) TEX. R. APP. P. 59.1: Upon grant, summary order with 6 of 9 justices. UTAH R. APP. P. 45 and 46: Petition for review on certiorari UTAH CODE ANN. 78-2-2(5) VA. SUP. CT. R. 5.17A: Petition for review VA. SUP. CT. R. 5:20: Denial of appeal; petition for rehearing VA. CONST. art. 6, 1-2: Discretionary Jurisdiction WASH. R. APP. P. 13.1: Method of Seeking Review: discretionary WASH. R. APP. P. 13.4: Discretionary review of decision; terminating review WASH. REV. CODE ANN. 2.04.010: Discretionary Review WIS. R. APP. P. 809.62: Petition for Review WIS. R. APP. P. 809.71: Supervisory writs WIS. STAT. ANN. 751.07: All writs provisions