Duncan v. State

488 Mich. 1019

791 N.W.2d 721

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 to deem this Court's release of Chief Justice Kelly's, Justice Corrigan's and Justice Markman's statements on December 22 to be the Court's final order is considered, and it is DENIED.

The motion was untimely because it was filed December 28, 2010. The statements issued on December 22 did not constitute an order and did not modify the substance of the November 30, 2010 order of the Court. Pursuant to MCR 7.313(E), the period for reconsideration expired December 21, 2010, which was 21 days after November 30, 2010, the date of the Court's order. An order is effective on the date it is entered, except in circumstances not applicable here. See MCR 7.317(D).

Defendants' claim that they did not have the benefit of this Court's full reasoning until December 22 is incorrect. Concurring and dissenting statements are not binding authority and do not speak for the Court. They convey the reasoning of the individual justices who sign them, not the reasoning of the Court.

No motion for reconsideration of this order will be entertained.

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 aconstitutional 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, sothat 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,...