Duncan v. State

488 Mich. 1011

791 N.W.2d 713

Christopher Lee DUNCAN, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs-Appellees,

v.STATE of Michigan and Governor of Michigan, Defendants-Appellants.

Christopher Lee Duncan, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs-Appellees,

v.State of Michigan and Governor of Michigan, Defendants-Appellants.

Christopher Lee Duncan, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs-Appellees,

v.State of Michigan and Governor of Michigan, Defendants-Appellants.

Docket Nos. 139345, 139346, 139347.

COA Nos. 278652, 278858, 278860.

Supreme Court of Michigan.

Dec. 29, 2010.

Order

On order of the Court, the motion for reconsideration of this Court's November 30, 2010 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously.

CORRIGAN, J. (dissenting).

I dissent from the order denying defendants' motion for reconsideration of this Court's November 30, 2010 order. The majority acts today with troubling yet purposeful haste in denying defendants' motion for reconsideration before the end of the calendar year with the clear intent to prevent the newly constituted Court after January 1, 2011, from considering defendants' motion. Indeed, I anticipated the problematic expediency in which the majority would treat such a motion in my objection to the release of the November 30, 2010 order without my dissent. In particular, I stated that " [t]he Court's decision to suddenly expedite this case seems designed to prevent the new Court after January 1, 2011 from considering a motion for reconsideration." Duncan v. State of Michigan, --- Mich. ----, 790 N.W.2d 695 (2010).¹ Perhaps most troubling is that the denial of defendants' motion for reconsideration comes after defendants were forced to file their motion without the opportunity toconsider my dissenting statement to the November 30 order.² Mydissenting statement was not issued until December 22, 2010, which was one day after defendants were forced into filing their motion for reconsideration on December 21, 2010, in order to satisfy the 21 daydeadline for motions for reconsideration. See MCR 7.313(E). Thus, defendants had to file their motion without having the opportunity to review and assess my dissenting statement. This wrongly deprived them of an opportunity to consider the thinking of the full Court in violation of our state constitution.

Specifically, our state constitution 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. [Const. 1963, art. VI, § 6 (emphasis added).] ³

The majority contravenes this constitutional mandate by deciding a motion filed prior to the issuance of my constitutionally required reasons for dissenting. In my view, that my dissent has since been issued does not satisfy this provision because defendants had to file their motion prior to the issuance of my dissent in order to be timely under MCR 7.313(E). Thus, the majority has diminished the protection of this constitutional provision by implementing a timeline that required defendants to file any motion for reconsideration without the benefit of my dissent. Further, "to act with speed can only be countenanced in situations where [this Court] nonetheless satisfies its duty [under Const. 1963, art. VI, § 6]." Tung Gan Lee v. City of Utica, 83 Mich.App. 679, 684 n. 2, 269 N.W.2d 267 (1978) (Riley, P.J., dissenting) (discussing this Court's use of peremptory orders). The majority's haste has thus undermined our duty under our state constitution.

I believe that counsel for a losing party cannot properly decide whether to file amotion for reconsideration or what to include in such a motion without knowing where the entire Court stands on an issue. This necessarily includes having an opportunity to evaluate each Justice's position. Moreover, such an evaluation can only be made after each Justice has fully enunciated his or her position. Here, the majority's calculated handling of this case deprived the litigants of the reasoning of the full Court.

The majority's lack of restraint is especially troubling given that the electorate already decided on a newly composed Court in the November 2, 2010 election. Undaunted, the majority, now paced by the calendar alone, is content in its attempt to foreclose reconsideration. I believe that the majority's handling of this case belies the way an appellate court should function. Appellate courts should be marked by steadiness and consistency, not gamesmanship in a race against the clock.

Further, I believe that defendants could properly move to file a supplement to their current motion or again move for reconsideration despite the language of MCR 7.313(F). Specifically, MCR 7.313(F) provides that "[t]he clerk shall refuse to accept for filing any motion for reconsideration of an order denying a motion for reconsideration." It is axiomatic that our court rules cannot contravene our state constitution. Thus, the procedural bar in MCR 7.313(F) cannot properly be applied here, where defendants were forced to file their motion for reconsideration without the full thinking of the Court contrary to our state constitution, Const. 1963, art. VI, § 6.

The denial of defendants' motion also wrongly leaves intact the erroneous November 30, 2010 order, which reinstated the April 30, 2010 order, where we erroneously affirmed the result of the Court of Appeals and remanded this case without a governing standard for evaluation of the claims. I continue to believe that the July 16, 2010 order granting defendants' motion for reconsideration of the April 30, 2010 order was properly entered. First, summary disposition is warranted because plaintiffs' claims are not justiciable.⁴ Inaddition, the April 30, 2010 order failed to set forth a governing standard. The majority permits this case tocontinue without providing any guidance to the trial court and the litigants concerning the legal standards that will govern discovery,subsequent motions, as well as the class certification question. ⁵ Moreover,the majorityis content to deny defendants' alternative motion requesting that we clarify the legal standard that governs this case, despite that the continuation of this entire case hinges on the articulation of such a standard. The majority continues to brush this problem aside. I would grant defendants' motion for reconsideration of the November 30, 2010 order.

MARKMAN, J. (dissenting).

I dissent from the order denying defendants' motion for reconsideration, and defendants' motion to deem the December 22, 2010 order as the Court's final order. For the reasons stated in my statements of July 16, 2010 and November 30, 2010, I would grant defendants' motion for reconsideration, vacate this Court's order granting plaintiffs' motion for reconsideration, and reinstate this Court's July 16, 2010 order.

The procedural history of this case is unusual and raises legal issues of first impression. One such issue is whether, as Justice CORRIGAN argues, parties have a constitutional right to have dissents considered before having to file a motion for reconsideration. See Const. 1963, art. 6, § 6 ("When a judge dissents in whole or in part he shall give in writing the reasons for his dissent."). Here, given that Justice CORRIGAN's dissent was not issued until December 22, 2010 (with the issuance of her statement having been expressly contemplated by what this Court issued on November 30, 2010), defendants were never afforded such an opportunity.

Put another way, is a party entitled to assess whether to file a motion for reconsideration, and how most effectively to fashion his or her arguments in support of such a motion, only after having been fully apprised of where the entire "court"stands on the underlying issue, as opposed only to where some individual justices stand? Related to this, before a motion for reconsideration must be filed, is a party entitled to have the arguments of dissenting justices considered by the majority, so that the majority may possibly be persuaded by such arguments? Thus, the decisive issue of first impression were defendants here required to file their motion for reconsideration within 21 days of November 30, 2010, or within 21 days of December 22, 2010?

These questions must be considered both in the context of the constitution, as Justice Corrigan asserts, and in the context of the court rules themselves. See MCR 7.313(E). In addition, assuming that either of these sources of the law afford a party the right to consider dissenting statements before being required to file a motion for reconsideration, what is the proper remedy where this right has not been afforded?

Unlike Justice CORRIGAN (who provides analysis for her position), and the majority (which provides no analysis for its contrary position), I have not yet reached a conclusion concerning what is required by the constitution or the court rules in these regards. I do, however, share Justice Corrigan's concerns about the propriety of the procedures followed by the majority in its determination to resolve these issues by December 31, 2010. See also, MEA v. Sec'y of State, 488 Mich. 18, 793 N.W.2d 568 (Markman, J., dissenting). Therefore, because I believe that defendants' motion, which we just received on December 28, 2010, raises legal issues of first impression, and because there are no emergency circumstances present here that require us to decide these issues within 48 hours of the motion, I would direct the parties to...