For those who don’t do appellate work, you may not want to spend your time reading this. For this who do ….
The Michigan Supreme Court has published proposed changes to the Court Rules relating to unpublished opinions. Click here to read the proposed rules. The purpose of the proposal seems to be to further shelter these opinions from being the product of the legal rigor one would expect from a state appellate court. This would be accomplished by making the citation of unpublished opinions in appellate briefs “disfavored.”
I found that Justice Markman’s concurrence and dissent nicely articulates the problems with this concept. As he notes, unpublished opinions should be unpublished only because they rely on prior cases which more thoroughly rationalize the controlling rule of law. They should not be perceived “second class” cases. We have already drifted into a arena where the Court of Appeals seems to believe they can issue an opinion that allows for the result they want in a particular case, and by leaving the opinion unpublished, offer something less than solid legal ground on which the result is based. This proposed change to the Court Rules would only exacerbate that bad situation.