Asked and Answered


 By Steve Thorpe
The Michigan Legislature recently approved SB 652, which will move Court of Claims cases from their current home in Ingham County Circuit Court to selected jurists from the Michigan Court of Appeals. The new Court of Claims will consist of four judges of the Court of Appeals, chosen from at least two of the four current Court of Appeals districts. Graham K. Crabtree of Fraser Trebilcock Davis & Dunlap PC in Lansing is an appellate specialist and is active in the Appellate Practice Section of the State Bar of Michigan. Before joining Fraser Trebilcock in 1996, he specialized in appellate practice for 10 years as an Assistant Prosecuting Attorney in Oakland County, followed by five years of service in state government as Majority Counsel and Policy Advisor to the Judiciary Committee of the Michigan Senate.
Thorpe: Do you anticipate that these changes will have an impact on how long it takes for an appeal to conclude in the Court of Appeals?

Crabtree: I anticipate that the changes effected by Senate Bill 652 may have a significant impact on the amount of time required for disposition of appeals in the Court of Appeals, although it is difficult to predict the extent of that impact at this time. There is cause for concern that this legislation will place additional burdens upon the Court of Appeals and its staff, and that this increased burden, coupled with a previously-legislated reduction of its size, will increase the time required for appellate dispositions. Court of Appeals Judges are best equipped and trained to handle disposition of appellate matters, and thus, there is concern that it will be inefficient to require four of them to serve in a dual role as both appellate and trial court judges. This new potential for inefficiency will coincide with a substantial increase in the caseload of the Court of Claims resulting from a very substantial expansion of that court’s jurisdiction. At the same time, the number of Court of Appeals judges will be reduced by attrition from 28 to 24 judges over the next few years pursuant to legislation (2012 PA 40) enacted last year. For these reasons, it may be expected that diverting the attention of four Court of Appeals judges from the business of the Court of Appeals will adversely affect that court’s ability to decide its cases in a timely manner.
Thorpe: Is there any situation, other than this one, where the Court of Appeals judges act as the trier of fact?

Crabtree: There are a few types of cases, such as complaints for mandamus and actions for enforcement of the Headlee Amendment, in which the Court of Appeals exercises original, rather than Appellate jurisdiction. But the Court of Appeals is not set up for conducting trials or evidentiary hearings on disputed factual issues, and thus, when factual development and findings of fact are required in these cases, the Court of Appeals typically remands the matter to a circuit court or administrative tribunal for the taking of proofs and submission of proposed findings. Senate Bill 652 would allow the reconfigured Court of Claims to appoint and utilize special masters for this purpose.  
Thorpe: How do you expect that appeals as of right from the newly-sited Court of Claims will be handled?

Crabtree: An appeal of right from a final judgment or order of the newly-sited Court of Claims will be taken to the Court of Appeals, and thus, the decisions of Court of Appeals judges sitting as Court of Claims judges will be reviewed by fellow Court of Appeals judges - a scenario which opponents of Senate Bill 652 have criticized as peculiar and problematic. The legislation does not provide any additional specifics as to how these appeals will be decided. Presumably, a Court of Appeals judge will not be permitted to sit on a hearing panel reviewing his or her own decision as a judge of the Court of Claims, as this would be unseemly at best, and most likely, a denial of procedural due process. The legislation does not address the question of whether a Court of Appeals judge who sits as a judge of the Court of Claims would also be disqualified from hearing an appeal from the decision of another Court of Appeals judge sitting as a judge of the Court of Claims.

Thorpe: Do you expect that the Legislature is going to have to enact any additional legislation to make this work?

Crabtree: Yes. During the brief committee hearings conducted before the Senate Judiciary Committee and the House Government Operations Committee, witnesses opposed to Senate Bill 652 voiced numerous objections and proposed a variety of changes.  All of the proposed amendments, including at least one acknowledged to be meritorious, were rejected in favor of an expedited final passage without amendment. I have heard from a knowledgeable source that there will probably be another bill — a “trailer bill” as they are sometimes called — to address some of the problems which have been, or will be, identified. 

Thorpe: Do you think that the Supreme Court is going to have enact any new court rules?

 Crabtree: I would expect that the Supreme Court will need to propose, and quickly adopt, new court rules addressing a number of unanswered questions. I would expect that these might include new rules addressing questions as to when and where the newly reconfigured Court of Claims will sit; how its administrative business will be conducted; how practice and procedure will be conducted in the Court of Claims, to the extent that existing statutes and court rules cannot be adapted for use by the selected Court of Appeals judges; and how appeals from decisions of Court of Appeals judges sitting as judges of the Court of Claims will be heard and decided by fellow Court of Appeals judges. 


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