Opinion
July 27, 2010.
Order Entered July 27, 2010.
On order of the Court, this is to advise that the Court is considering amendments of Rules 7.212 and 7.215 of the Michigan Court Rules. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford interested persons the opportunity to comment on the form or the merits of the proposal or to suggest alternatives. The Court welcomes the views of all. This matter will be considered at a public hearing by the Court before a final decision is made. The schedule and agendas for public hearings are posted on the Court's website: http://courts.michigan.govsupremecourt/Resources/Administrative/index.htm.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[Additions are indicated in underlining and deletions are indicated in strikeover.]
RULE 7.212. BRIEFS.
(A)-(B) [Unchanged.]
(C) Appellant's Brief; Contents. The appellant's brief must contain, in the following order:
(1)-(6) [Unchanged.]
(7) The arguments, each portion of which must be prefaced by the principal point stated in capital letters or boldface type, As to each issue, the argument must include a statement of the applicable standard or standards of review and supporting authorities. Facts stated must be supported by specific page references to the transcript, the pleadings, or other document or paper filed with the trial court. Page references to the transcript, the pleadings, or other document or paper filed with the trial court must also be given to show whether the issue was preserved for appeal by appropriate objection or by other means. If determination of the issues presented requires the study of a constitution, statute, ordinance, administrative rule, court rule, rule of evidence, judgment, order, written instrument, or document, or relevant part thereof, this material must be reproduced in the brief or in an addendum to the brief. If an argument is presented concerning the sentence: imposed in a criminal case, the appellant's attorney must send a copy of the presentence report to the court at the time the brief is filed. Any unpublished judicial opinion, order, or other written disposition must be attached to the brief unless it is an unpublished decision of this court released after July 1, 1996 (the date after which all Court of Appeals opinions are available on the Court, of Appeals website), and the citation in the brief includes the Court of Appeals case number:
(8)-(9) [Unchanged.]
(D)-(I) [Unchanged.]
RULE 7.215. OPINIONS, ORDERS, JUDGMENTS, AND FINAL PROCESS FROM COURT OF APPEALS.
(A)-(B) [Unchanged.]
(C) Precedent of Opinions.
(1) An unpublished opinion is not precedentially binding under the rule of stare decisis. A party who cites an unpublished opinion must provide a copy of the opinion to the court and to opposing parties with the brief or other paper in which the citation appears, except that unpublished decisions of this court released after July 1, 1996 (the date after which all Court of Appeals opinions are available on the Court of Appeals website), need not be provided if the citation includes the Court of Appeals case number.
(2) [Unchanged.]
(D)-(J) [Unchanged.]
Staff Comment: These proposed amendments of MCR 7.212 and MCR 7.215, submitted by the State Bar of Michigan Appellate Practice Section, would eliminate the requirement to provide a copy of an unpublished Court of Appeals decision if that decision was issued after July 1, 1996, and a case number is provided.
The staff comment is not an authoritative construction by the Court.
A copy of this order will be given to the secretary of the State Bar and to the state court administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court Clerk in writing or electronically by November 1, 2010, at RO. Box 30052, Lansing, MI 48909, or MSC_clerk courts.mi.gov. When filing a comment, please refer to ADM File No. 2009-22. Your comments and the comments of others will be posted at www.courts.mi.gov/supremecourt/resources/administrative/index.htm.
I support the publication of this amendment to Rules 7.212 and 7.215, which would remove the requirement that parties citing an unpublished Court of Appeals opinion provide copies of the opinion to the court and other parties if the opinion is available online. However, I write separately to note that this proposed modification should not be construed as a change representing support for the authority to rely on unpublished opinions.
Our court rules explicitly provide that "[a]n unpublished opinion is not precedentially binding under the rule of stare decisis." MCR 7.215(C)(1). This standing admonition should serve generally to discourage the citation of unpublished opinions, which often do little more than tell the parties to a particular case why they win or lose on the facts and circumstances of that case without offering an extensive examination of the law typically found in published Court of Appeals decisions. Unpublished opinions simply are not intended to be applied beyond the facts raised in the case. This point is made more emphatic by virtue of the fact that this Court has provided a mechanism for requesting that a decision initially issued as an unpublished decision be reissued as a published opinion. See MCR 7.215(D). Under this rule, the panel that issued the unpublished decision can determine whether its original decision is worthy of being reissued as a published opinion.
Simply because technology has made access to unpublished opinions easier does not make reliance on them as authority more justifiable. I do not consider relaxing the obligation to attach physical copies of such opinions to a party's court filings as a relaxation of the caution against using nonprecedential decisions in court practice.