How Cases are Decided at the COA: Part Four

May 19, 2014 § 4 Comments

Continuing with Judge Griffis’s paper …

4. Full Court Consideration

a. Circulation

Each panel opinion is circulated to the non-panel judges (i.e., the “Full Court”) for consideration and vote. The briefs are not circulated with the final panel opinions.

When a panel opinion is in Full Court circulation, each non-panel Judges decides what materials they need to review to vote on the opinion. Each Judge may obtain the briefs, the record, the transcript or any other document filed in the case for their review and consideration. Each Judge may also talk to the panel Judges about the facts, issues, or the panel’s decision. With electronic filing of briefs, the briefs will be available for each non-panel Judge to access.

Each non-panel Judge is expected to vote to concur, specially concur, concur in result only, concur in part and in result, dissent, or concur in part/dissent in part. Just like a panel Judge, each non-panel Judge may also write a separate opinion or ask that the case be considered by the Court’s en banc conference. Each non-panel Judge may also offer suggestions or modifications to the opinion-writer.

b. Separate Opinion

If a non-panel Judge indicates the intent to write a separate opinion, the Judge is expected to prepare a separate opinion promptly. When the separate opinion is finished, it is sent to the majority opinion-writer to allow for revisions in the original opinion. The writing Judges then finalize their opinions.

c. Re-circulation

The majority and separate opinions are then circulated to all Judges for a vote. If the majority does not change, the final opinions are ready to be handed down.

If the majority changes (flips), the author of the separate opinion becomes the opinion-writer and must promptly produce a majority opinion. The other Judge may then change their opinion to a separate opinion. The flipped opinions are again circulated for a final vote to determine the Court’s final opinion.

The circulation and recirculation of opinions are an effort to arrive at a final decision of the Court. Although it does not occur often, an opinion may be circulated three or more times, with three or more opinions.

If the Court’s vote is tied at five-five, the trial court is considered to be the tie breaking vote. On a tie vote, the Court’s decision is to affirm the trial court. The Supreme Court has no obligation to consider a case that resulted in a tie at the Court of Appeals, but this is certainly a reason that favors consideration of the case by the Supreme Court.

5. Hand Down

The Court of Appeals’ final decisions are released or “handed down” every Tuesday at 1:30 p.m. on the Court’s website.

D. Rehearing

A motion for rehearing may be filed within fourteen days of the decision. MRAP 40(a). The motion shall state with particularity the points of law or fact which the court has overlooked or misapprehended and shall contain such argument in support of the motion as movant desires to present. The motion should be used to call attention to specific errors of law or fact which the opinion is thought to contain; the motion for rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court.

A response to the motion for rehearing may be filed within seven days of the motion. The failure to file a response within this time period waives the right to respond but does not confess the arguments made in the motion.

There is no oral argument on a motion for rehearing. A party can only file one motion for rehearing.

A motion for rehearing must be filed before a party may petition the Supreme Court for certiorari review of the Court of Appeals decision.

A motion for rehearing is limited to the consideration of whether the Court (1) overlooked a material fact in the record or controlling authority that would require a different result, and (2) misapplied or erroneously construed controlling authority.

E. Certiorari

The Supreme Court may consider the appeal of a Court of Appeals decision on a writ of certiorari. The grant of certiorari is discretionary and requires the vote of at least four Supreme Court Justices. Certiorari is to be granted to resolve “substantial questions of law of general significance.” MRAP 17(a).

A petition for a writ of certiorari must be filed and served within fourteen days of the Court of Appeals’ decision on the motion for rehearing. The petition can have a maximum of ten pages and must state the “precise basis on which the party seeks review by the Supreme Court.” MRAP 17(b). A response may be filed within seven days.

The Supreme Court must decide whether to grant certiorari within ninety days of the response. MRAP 17(e). 

Note: The second part of Judge Griffis’s paper is “How Opinions are Written and Circulated,” which will be posted soon.

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§ 4 Responses to How Cases are Decided at the COA: Part Four

  • J says:

    ^”A motion for rehearing in the Court of Appeals shall be heard by the panel which rendered the judgment in the matter unless the Court of Appeals shall vote to consider the matter en banc.” MRAP 40

  • Bob Wolford says:

    This process looks incredibly complicated, and the work load on the clerks must be enormous. Also appears that a complete separate staff is needed to keep up with where an opinion is in the overall process.

  • thusbloggedanderson says:

    Had I been at the presentation of this paper, I would have had a couple of questions about motions for rehearing: should there be a time limit for the court to rule on them, and should they be a prerequisite for seeking cert? Also interested in who gets assigned the motions for rehearing … a judge on the original panel?

    301 motions for rehearing filed in the COA in 2013, btw, so 30 per judge.

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