- DeRosier, Phillip J.
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By Phillip J. DeRosier1
While the procedure has been in use since 2003, many practitioners have not yet had occasion to participate in a Michigan Supreme Court “mini oral argument on the application,” or MOAA (pronounced “mō-ah”).
Overview of the MOAA Process
MCR 7.305(H)(1) provides that in response to an application for leave to appeal, the Supreme Court may “grant or deny the application for leave to appeal, enter a final decision, direct argument on the application, or issue a peremptory order.” Of course, in the vast majority of cases the Court will deny the application. While the Court will sometimes grant relief by peremptory order, in only a handful of cases does the Court grant leave to appeal and order full briefing and argument.
In some cases, the Court needs additional assistance from the parties before making its determination, and will direct the Court Clerk “to schedule oral argument on whether to grant the application or take other action.” As explained in the Supreme Court’s Internal Operating Procedures, a MOAA “allows the Court to explore the issues in a case without the full briefing and submission that apply to a grant of leave to appeal.” MSC IOP 7.305(G). The granting of a MOAA requires a majority vote, just like granting leave to appeal. Id.
When the Court orders a MOAA, it typically directs the filing of supplemental briefs, usually due 42 days after entry of the MOAA order. Oftentimes the order will identify specific issues that the Court wants the parties to address. MSC IOP 7.305(G)[a]. Supplemental briefs are subject to the same requirements as merits briefs, and “should address the issues specified by the Court in its order.” Id.
The Court’s “Guide for Counsel In Cases To Be Argued in the Michigan Supreme Court” advises practitioners to “keep in mind that if the Court has ordered a MOAA, it is likely interested in a specific issue that it considers important, but it is unsure whether that issue warrants a full grant.” Thus, any such issues should be fully addressed, as they will “likely be regarded as controlling by the Court.”
Because MOAAs are “usually scheduled relatively soon after the briefing period ends,” the Court discourages motions to extend time to file supplemental briefs. MSC IOP 7.305(G)[b]. And because the Court contemplates the parties’ supplemental briefs being filed at the same time, “[i]f one party moves to extend the filing date and it is granted, the Court’s order will sua sponte provide the same extension to the other party, keeping with the mutual due date specified in the MOAA order.” Id. Reply briefs are “rarely permitted,” and are accepted “only upon order of the Court.” Id.
While the court rules only address the filing of amicus briefs in calendar cases, the Supreme Court does permit them to be filed at the MOAA stage. MSC IOP 7.305(G)[c]. The Court applies the same deadlines as in calendar cases: “That is, an amicus brief, along with a motion to accept the brief if required by MCR 7.312(H), is due within 21 days after the last timely filed supplemental brief is submitted or the time for filing the supplemental briefs has expired, whichever is earlier. Id.
MOAA cases are scheduled and argued alongside calendar cases, but there are important differences in how arguments in MOAAs are conducted. As explained in the Supreme Court’s “Guide for Counsel”:
"First, each side is limited to 15 minutes of argument. Second, counsel is given only two minutes of uninterrupted argument. As a practical matter, however, the Justices frequently begin questioning counsel prior to the expiration of the two minutes. In addition, while it is possible to reserve time for rebuttal, it will likely be a practical impossibility. Given the limited time for argument, it is imperative to be clear and concise when making your arguments and answering questions."
After the MOAA, the Court will consider “a range of options to address the case, including granting or denying leave to appeal, issuing a peremptory order, or issuing an opinion.” See “Guide for Counsel,” p 11. The Court’s “Guide for Counsel” explains that it is “important to recognize that, in MOAA cases, the Court is less likely to issue a full opinion following argument.” Id. Thus, practitioners should “[t]hink carefully about what you would like the Court to do” and be prepared to “discuss and defend” that position at oral argument. Id. If the goal is to obtain a peremptory order, it is important to “tell the Justices precisely what the order should accomplish.” Id. On other hand, “[i]f your goal is to convince the Court to grant leave to appeal, tell the Court why denying leave or issuing a peremptory order is insufficient.” Id.
1 A version of this article was previously published in the Michigan Defense Quarterly.
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