Order                                                                  Michigan Supreme Court
                                                                             Lansing, Michigan

  January 13, 2011                                                            Robert P. Young, Jr.,
                                                                                        Chief Justice

  139345-7 (121)                                                              Michael F. Cavanagh
                                                                                    Marilyn Kelly
                                                                               Maura D. Corrigan
                                                                              Stephen J. Markman
  CHRISTOPHER LEE DUNCAN, BILLY JOE                                           Diane M. Hathaway
  BURR, JR., STEVEN CONNOR, ANTONIO                                              Mary Beth Kelly,
  TAYLOR, JOSE DAVILA, JENNIFER                                                              Justices
  O’SULLIVAN, CHRISTOPHER MANIES, and
  BRIAN SECREST,
              Plaintiffs-Appellees,
  v                                                   SC: 139345
                                                      COA: 278652
                                                      Ingham CC: 07-000242-CZ
  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                                                   SC: 139346
                                                      COA: 278858
                                                      Ingham CC: 07-000242-CZ
  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                                                   SC: 139347
                                                      COA: 278860
                                                      Ingham CC: 07-000242-CZ
  STATE OF MICHIGAN and GOVERNOR OF
  MICHIGAN,
             Defendants-Appellants.
  _________________________________________/

         This Court’s order of December 29, 2010 denying the defendants’ motion to deem
  will be published in the Michigan Reports as follows:
                                                                                           2

      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.

        MARILYN KELLY, C.J. (concurring in part and dissenting in part). Justice
CORRIGAN’s dissenting statement repeats her belief that “counsel for a losing party
cannot properly decide whether to file a motion for reconsideration or [decide] what to
include in such a motion without knowing where the entire Court stands on an issue.” I
disagree. Although knowing how all the justices stand is sometimes helpful, often it is
not. And, regardless of whether it is or is not helpful, parties often must decide whether
to file a motion for reconsideration without such knowledge.

       For example, consider cases in which blanket denial orders enter, stating only that
“we are not persuaded that the question presented should be reviewed by this Court.” We
often issue such orders without additional comment irrespective of the fact that the vote
in favor of the order is not unanimous. Indeed, only a minority of our orders disposing of
cases include statements. And even when they do, the statements do not speak for the
Court.

        Moreover, Justice CORRIGAN’s argument that releasing an order without a
justice’s statement contravenes art 6, § 6 of the Michigan Constitution cannot be correct.
First, taken to its logical conclusion, her interpretation would require a dissenting justice
to write a statement of his or her reasons for dissenting in every case in which the Court
lacks unanimity. This would include every case in which the Court’s vote is split, but the
justices whose views did not prevail decline to have their position shown on the order.
Given the inevitable frequent disagreement among the justices on our Court, we would be
quickly bogged down writing statements if Justice CORRIGAN’s interpretation of our
Constitution were correct.
                                                                                          3

       Second, nothing in art 6, § 6 requires that the reasons for a dissent must be issued
simultaneously with the Court’s order. It does not “benefit” a losing party to have the
reasoning in any one justice’s statement in order to persuade the other justices because
they have already had an opportunity to consider those arguments. In this case, Justice
CORRIGAN’s statement of December 22 and her statement issued today are an almost
verbatim restatement of the reasoning set forth in defendants’ briefing to this Court; they
do not provide independent reasoning to support defendants’ position. Thus, defendants
were themselves already aware of, and had already set forth, the arguments advanced in
Justice CORRIGAN’s dissenting statements.

       Finally, no precedent exists for updating an order’s entry date to the date of later-
issued statements about that order. Always in the past, the statements have been treated
as amendments or additions to the original order. The order became effective on the date
it was entered, and later-issued statements have not affected that date. See People v
Limmer, 461 Mich 974 (2000); MCR 7.317(D).

       In Limmer, we issued an order on March 8, 2000 denying leave to appeal but
stating that then-Chief Justice WEAVER and Justices CORRIGAN and MARKMAN would
grant leave to appeal and dissenting statements would follow. On April 18, 2000, a
dissenting statement by Justice CORRIGAN, joined by then-Chief Justice WEAVER and
Justice MARKMAN was issued. The effective date of the denial order continued to be
March 8. 1

      For these reasons, we should not treat the date of issuance of our December 29
order as having been changed by today’s issuance of Justice CORRIGAN’s dissenting
statement.

       CORRIGAN, J. (dissenting).

       I dissent from the order denying defendants’ motion to deem the December 22,
2010 order as this Court’s final order. Defendants filed this motion on December 28,
2010, after the Court issued Chief Justice KELLY’s concurring statement and Justice
MARKMAN’s and my dissenting statements to the Court’s November 30, 2010 order
granting plaintiffs’ motion for reconsideration on December 22, 2010. The majority
summarily denied defendants’ motion to deem on December 29, 2010, without my
dissenting statement. On the same day, the majority also denied defendants’ motion for
reconsideration of the November 30, 2010 order, to which I also dissented. See Duncan v
State of Michigan, ___ Mich ___ (2010).
1
  See also ADM Order No. 2006-08, 477 Mich clii (2006) (stating that the order was
entered December 6, 2006 and became effective immediately and stating that dissenting
statements would follow. Then-Justice WEAVER’s dissenting statement entered on
December 20, 2006, but, as in Limmer, did not affect the effective date of the order).
                                                                                           4


        In my dissenting statement to the denial of defendants’ motion for reconsideration
of the November 30, 2010 order, I opined that the majority erroneously denied
defendants’ motion for reconsideration because that motion had been filed without the
full reasoning of the Court. Specifically, I stated:

               My dissenting 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 day
       deadline 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. [Duncan, ___ Mich at ___ (CORRIGAN, J. dissenting).]

Recognizing this error, defendants asked that the December 22, 2010 order serve as the
final order granting plaintiffs’ motion for reconsideration and that the 21 day time period
for filing a motion for reconsideration run from December 22, 2010. They also sought to
withdraw their December 21, 2010 motion for reconsideration and submit a new filing or
supplement to their motion. Defendants argue that because of the release of additional
statements on December 22, 2010, they lacked the complete reasoning of the Court and
the opportunity to review the basis for the decision by each justice.

        I agree with defendants’ argument. I would grant their requested relief. Our court
rules cannot control this situation because defendants were forced to file their motion for
reconsideration without the full reasoning of this Court, contrary to our state constitution.
It is axiomatic that our court rules cannot contravene our state constitution. As I stated in
my dissent to the order denying defendants’ motion for reconsideration of the November
30, 2010 order:

              [O]ur 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).]

              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).
                                                                                         5

       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 (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 a motion 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. [Id.]

       I disagree with the majority’s assertion that because “[c]oncurring and dissenting
statements are not binding authority and do not speak for the Court,” defendants
incorrectly posit that they lacked the reasoning of the full Court until December 22, 2010.
Although such statements are not binding, this does not absolve the majority of the
constitutional error described above. Further, to remedy this Court’s noncompliance, we
should deem our December 22, 2010 order as the final order and permit defendants to
supplement their current motion or file an additional motion.
                                                                                         6


       Lastly, regarding the majority’s pronouncement that “No motion for
reconsideration of this order will be entertained,” I agree with Justice MARKMAN, who
properly stated in his dissenting statement:

             [W]e remind the majority that, while it may bind this Court by its
      substantive decisions, it does not bind by its pronouncements as to
      controversies that have not yet been presented to the Court, i.e., motions for
      reconsideration that have not yet been filed. That is not how this Court’s
      “judicial power” is exercised.
Although the majority provided no authority whatsoever for its pronouncement, MCR
7.313(E) would not bar defendants from filing a motion for reconsideration of this order.
The court rule bars “motions for reconsideration of an order denying a motion for
reconsideration.” Because the order at issue does not deny a motion for reconsideration,
the procedural bar of MCR 7.313(E) is simply irrelevant. Accordingly, I would grant
defendants the relief they requested.

      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?
                                                                                         7


       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, ___Mich ___, Section VI (2010)
(Docket No. 137451) (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 brief these issues and direct the Clerk to schedule oral argument at the earliest
opportunity.

       Concerning the majority’s assertion that “no motion for reconsideration of this
order will be entertained,” we remind the majority that, while it may bind this Court by
its substantive decisions, it does not bind by its pronouncements as to controversies that
have not yet been presented to the Court, i.e., motions for reconsideration that have not
yet been filed. That is not how this Court’s “judicial power” is exercised.

       Finally, with regard to the underlying motion for reconsideration in this case, I
reaffirm my concern in allowing plaintiffs’ class action to proceed. In particular, I
reaffirm my concern that plaintiffs’ claims: (a) threaten to have the judiciary override,
and assume ongoing control, of Michigan’s system of local control and funding of legal
services for indigent defendants, despite the absence here of any constitutional violation;
(b) threaten, in the words of the Court of Appeals, “a cessation of criminal prosecutions
against indigent defendants,” Duncan v Michigan, 284 Mich App 246, 273, 281 (2009);
and (c) extend an open invitation to Michigan trial courts to assume ongoing operational
control over the systems for providing defense counsel to indigent defendants in Berrien,
Genesee and Muskegon counties, and with that an invitation to compel state legislative
                                                                                                               8

appropriations, and executive branch acquiescence in such appropriations, in assuming
similar judicial control over the criminal justice systems in every county of this state,
while nullifying provisions of the criminal defense act and superseding the authority of
the Supreme Court and the State Court Administrator.

      YOUNG, J., joins the statement of MARKMAN, J.

      MARY BETH KELLY, J., states as follows:

       Pursuant to MCR 2.003(D)(3)(b), I am not participating in this decision because it
involves the republication of an order that has already been issued.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         January 13, 2011                    _________________________________________
       0112                                                                  Clerk
