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Speaker Law

Ruminations on the Delayed Application Court Rule

Posted on Wednesday, May 16, 2018

Under MCR 7.205(G)(3), appellate counsel has always assumed that there was a 6 month absolute deadline for filing an application for leave in the Court of Appeals (subject to specific jurisdictional and criminal exceptions). MCR 7.205(G)(3) states:


[L]eave to appeal may not be granted if an application for leave to appeal is filed more than 6 months after the later of: 

(a) entry of a final judgment or other order that could have been the subject of an appeal of right, or 

(b) entry of the order or judgment to be appealed from....


However, upon close examination, the court rule states only that the Court may not grant leave, it does not say that an application may not be filed. This leads to the question:


Can the Court of Appeals grant other forms of relief when an application is filed after the 6 month mark?


Under MCR 7.216(A) and (B), it appears the answer could be yes. MCR 7.216(A)(7) authorizes the Court to “enter any judgment or order or grant further or different relief as the case may require.” Further, MCR 7.216(B) states,


When any nonjurisdictional act is required to be done within a designated time, the Court of Appeals may permit it to be done after expiration of the period on motion showing that there was good cause for delay or that it was not due to the culpable negligence of the party or attorney.


Accordingly, it appears that the Court could grant relief after the cutoff date for filing has expired, so long as the delay is not the fault of the party or counsel. MCR 7.205(G)(3) simply prohibits the Court of Appeals from granting leave when the application is filed after 6 months, not granting other relief, such as a peremptory reversal.


Warning, this theory has not been tested, but it is an interesting argument to raise if a client is beyond the 6 month deadline.

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