Royster named as COA chief clerk

Larry Royster, a 24-year veteran at the Michigan Court of Appeals, has been appointed as the court’s chief clerk, effective Jan. 31.

COA Chief Judge William B. Murphy said the Royster will serve both as the chief clerk and in his current position as the COA’s research director.

According to Murphy:

The judges of this court are delighted to have someone of Mr. Royster’s talent and experience ready to assume the responsibilities of Chief Clerk.

He has served with distinction in past positions he has held in this Court’s administration and was the clear choice of our judges.

Royster will replace Chief Clerk Sandra Schultz Mengel.

Mengel is retiring from the court with high praise from Murphy:

[She] has served this Court as Chief Clerk in an exemplary fashion for almost 10 years and will be sorely missed. Her administrative leadership has been a critical component of this Court’s success.

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Appellate workhorse

The Michigan Court of Appeals has docketed a lot of cases in its 45-year history.

A state constitution that guarantees, with a few exceptions, an appeal as of right also guarantees a hefty workload for the COA.

The court recently docketed case number 300,000.

The COA did some justifiable boasting to mark the occasion:

Although it is one of the highest-volume appellate courts in the country, the Court of Appeals has an annual clearance rate of at least 100 percent — it decides as many appeals as are filed in any given year. And the Court of Appeals decides roughly 90 percent of its cases within 18 months of filing.

Despite budget cuts and staff reductions, the Court has maintained these high disposition rates by implementing cost-effective processes and technologies, such as e-filing. E-filing also benefits the parties to an appeal by allowing them to file documents electronically, rather than having to travel to one of the Court’s four district offices.

Chief Judge William B. Murphy provided some context about what 300,000 cases represents:

This milestone is a reminder of the importance the Michigan Court of Appeals plays in the Michigan judicial system. Importantly, behind these numbers are individuals, families, and governmental and business interests that turn to our judicial system for peaceful resolution of disputes.

I am grateful to the judges and staff, past and present, who have served the public with integrity, competence and dedication.

Robbing Peter to pay Paul?

Later this week, the Michigan House Judiciary Committee is taking testimony on HB 5371.

The bill exempts prosecuting attorneys from paying some fees in the Michigan Court of Appeals and the circuit courts.

The legislation is undoubtedly intended to ease the strain on county prosecutors’ budgets, which are being pinched along with the budgets of all other governmental agencies.

But, in at least as the COA is concerned, this may be akin to passing a (nonexistent) buck.

Last month, COA Chief Judge William B. Murphy appeared before the Judiciary Subcommittee of House Appropriations to plead for an honest budget from the Legislature. See, Michigan Lawyers Weekly, “Judges begging for budgets.”

The problem, Murphy told the lawmakers, is that for a number of years, part of the COA’s budget, nearly $2 million, has been based on anticipated fee revenue. But the court never collects what’s anticipated.

In fact, for 2009, there was a $500,000 shortfall. Murphy said budget assumptions based on fee revenue have not been adjusted to reflect what’s actually collected.

If HB 5371 becomes law, it will affect COA fee revenue.

And if the Legislature is to take Murphy’s complaint seriously, it will need to allocate even more real dollars to the COA to make up for the imaginary ones being collected in the clerk’s office.

In their opinions . . .

“Because I question defendant’s right to appellate relief while she is in contempt of the trial court’s orders, and to avoid the harsh sanction of outright dismissal, I would explore the approach of the Arizona Supreme Court in Stewart v Stewart, 91 Ariz 356 (1962), and condition the grant of any relief this Court concludes is otherwise appropriate on defendant’s compliance with the trial court’s orders.”

– Michigan Supreme Court Justice Maura Corrigan, concurring in the MSC’s leave granted order in Friend v. Friend.

Exactly. The fugitive disentitlement doctrine is based on the notion that an appellate court can boot an on-the-run criminal defendant’s appeal.

The MSC is mulling whether to adopt some version of the doctrine in civil settings and has asked the parties in this hotly contested divorce case for briefs on the issue.

* * *
“It cannot reasonably be disputed that, in general, senior citizens and the elderly are more susceptible to falls and injuries from falls, especially where there is some defect present in a walking surface, considering natural frailities and the loss of agility and balance that unfortunately come with age.”

– Michigan Court of Appeals Judge William B. Murphy, dissenting in Ford v. Nat’l Church Residences, Inc.

Everyone needs to watch their step. Ford, an 88-year-old woman, tripped on a cracked sidewalk leading to her senior-citizens’ apartment.

The majority turned aside Ford’s argument that her landlord breached the covenant in MCL 554.139(1)(a) or (1)(b) “[t]hat the premises and all common areas are fit for the use intended by the parties” and “[t]o keep the premises in reasonable repair.”

The majority noted that the crack was “open and obvious.”

Murphy acknowledged

that, in the context of the open and obvious danger doctrine, an objective standard is used and that the fact-finder must consider the condition of the premises, “not the condition of the plaintiff.”

But, Murphy continued, under MCL 554.139(1)(a)

defendant had a legal obligation to keep the sidewalk “fit for the use intended by the parties.” (emphasis added.)

The express language of the statute has a subjective component to it, where the language refers to the parties’ intent as to use. The parties’ intent here, clearly and necessarily, was that the sidewalks would be used to walk on for purposes such as ingress and egress relative to the apartments.

But encompassed within that intent and the parties’ knowledge was the fact that the sidewalks would be used to a great extent by the elderly.

Murphy argued that a jury should decide whether the sidewalk was fit for the use intended by the parties.

MSC appoints new chief judges

Judge William B. Murphy has been named as the new chief judge of the Michigan Court of Appeals.

The Michigan Supreme Court approved the appointment last week with votes for Murphy from Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Stephen Markman and Diane Hathaway.

Murphy was appointed to the court in 1988. Previously, he was a member of the East Grand Rapids City Commission, a law clerk for the Michigan Court of Appeals, and he worked as an attorney in private practice. Judge Murphy received his bachelor’s degree from Michigan State University and his law degree from Wayne State University.

The MSC also approved a slew of chief judges for the state’s circuit and district court.

The court released three appointment lists: chief judges of multiple-judge courts, chief judges of single-judge courts and appointments discussed individually at the public conference.