COMMENTARY: District court appeals--a glitch and a fix

By Laurie Longo It's the first of the month and an envelope arrives from district court. You've waited weeks for this opinion and order, which your client plans to appeal. You open the envelope and see to your surprise that it was signed more than three weeks earlier. You think "that can't be right" and check the postmark--it's dated three days ago. You call the court clerk to check the date the order was entered and learn that, according to the register of actions, it was "entered" the same day it was signed, more than three weeks ago. Your heart begins to race and your cortisol levels rise: the appeal period has passed before the order was even received. Not to worry--this is a glitch for which there is a fix. The Backstory Effective May, 2012, Chapter 7.100 of the Michigan Court Rules, which governs appeals from district to circuit court, was substantially amended to correspond to Chapter 7.200, which governs appeals from circuit court to the Michigan Court of Appeals. Although the amendments substantially reduced the variability in appellate practice across courts, important glitches remain. One such glitch arises from the application of MCR 7.204(A) in light of district court recordkeeping protocols which have not yet been fully coordinated with the 2012 amendments. The 21-day period for filing an appeal as of right begins with the date of the signing or the entry of the final order. MCR 7.204(A) states that: "'entry' means the date a judgment of order is signed, or the date that data entry of the judgment or order is accomplished in the issuing tribunal's register of actions." This rule clearly anticipates that if the actual dates are different both dates will be accurately identified in the register of actions. Under MCR 7.102(7), MCR 7.204(A) was incorporated by reference into Chapter 7.100 which also requires that the district court's register of actions be filed with a claim of appeal so the date of "entry" listed in the register of actions can be used by the circuit court to determine whether the appeal was timely and the circuit court has jurisdiction. MCR 7.104(D)(6). The Glitch Given the above, the district court register of actions should contain both the date the order was signed as well as the actual date the data regarding the order was entered into the district court's information system. The Michigan Court Administration Reference Guide, however, instructs district court administrators that the register of actions "shall be dated with not only the date of filing, but with the date of entry and shall indicate the person recording the action." Because this instruction does not identify "entry" as "data entry" it may appear to reference MCR 2.602(A)(2) which, contrary to MCR 7.204(A), states that the date of "entry" is the date the order was signed--one order, one date. This latter approach--one order, one date--appears to have been adopted by some district court administrators, rendering the register of actions useless for determining the start of the appeal period under MCR 7.204(A). As a practical matter, a signed order can linger for weeks before data entry and mailing by court staff. When this occurs and the actual date of "data entry" is omitted, the appeal period can be inadvertently cut short or eliminated altogether, along with the time for post-judgment settlement negotiations and the time for the parties to obtain appellate counsel. The Fix The most important action that you can take to protect your client and yourself is to obtain the register of actions immediately upon receipt of the order. If the register of actions shows only the date of signing and you are confronted with a dramatically shortened appeal period as a result, you may be able to resolve the problem without filing a motion. This fix depends upon the cooperation of district court staff above and beyond the normal call of duty, so plan ahead and plan to be patient because you will need to obtain additional documentation from the court clerk beyond the register of actions. The JIS computer program, widely used in district courts, permits a senior or deputy administrator to access a page within the program, which is entirely separate from the register of actions and not normally available to the public. This page will show the actual date the data regarding a particular order was entered into the district court's information system. You will need to obtain a printout of the screen shot for that page which you can then attach as a supplement to your claim of appeal along with the register of actions. You also may wish to have court staff explain the specifics of the printout because the page showing the internal data may not be entirely clear to you--or to your appellate judge--without additional explanatory information. The staff at SCAO has been notified of the above problem and has indicated that the new MiCS case management system will address this issue. In the meantime, while the above approach requires a little extra vigilance and a few extra hoops, it should work to ensure your client the benefit of the full appeal period. ---------------- Laurie Longo is an Ann Arbor attorney specializing in appellate work. For additional information, visit www.JustAppeals.com. Published: Fri, Aug 23, 2013