My question involves court procedures for the state of: MI
Although one or more replies might be like "ask a lawyer", I should say that at this point I have more appellate experience than the opposing counsels (of my appeals) taken together. Besides, I also know of many Michigan attorneys who don't even make it to the COA.
Short version: While my appeal is pending, the trial judge keeps violating the Court Rules (MCR 7.208) by entering orders without a hearing. I need to know whether (1) a Writ of Phohibition would be the appropriate remedy since the judge is abusing/exceeding jurisdiction, or (2) the Court Of Appeals is likely deny my Writ Complaint with the argument that the new order by the trial court is (or upon remand will be) appealable.
Long version:
New evidence unexpectedly surfaced while my appeal as of right is pending. In fact, I had pursued that evidence during discovery but the judge precluded it. The defendant constantly gets in trouble everywhere, and at some point she impliedly waived the protective relief during her recent activity, which led to the newly discovered evidence. Although I'm confident about my position/appeal, the new evidence is dispositive on its own and non-cumulative.
Since the Court Of Appeals has jurisdiction over my case, I initially filed there a motion to expand the record with the newly discovered evidence (I actually started a thread about that in this forum). The COA denied my motion without stating any reason(s) for the denial. As a result, I filed the new evidence by motion in the trial court and within the time constraints in MCR 2.612(C).
In my motion at trial court, I stated very clearly all of the following:
1. That, absent leave of the court, the Court Rules prohibit the trial judge to alter the record while the case is in the COA.
2. That I reported to the COA the judge's former/similar violation, and that I submitted to the COA evidence (also available in the record on appeal) that disproves the false statements in that violation. I attached to my trial-motion the COA's receipt of my notification.
3. That the judge's violation of the Court Rules constitutes abuse of jurisdiction.
4. That Michigan and other states contemplate the Writ of Prohibition as a civil remedy for when a judge abuses or exceeds jurisdiction. To that effect, I cited Michigan [published] case law.
5. That upon completion of appellate review I will schedule a hearing for the motion "for relief from judgment", and for the time being the judge ought to refrain from renewedly altering the record.
Now the trial judge has denied my motion basically regurgitating my argument #1 (see above) and evidently ignoring #5. To top it off, the judge made additional incoherent excuses for why she has been violating the Court Rules. These new falsities can be disproved by the record on appeal.
Dilemma:
One aspect that makes me hesitate to pursue a Writ of Prohibition is that other writs (for mandamus or for superintending control) are denied when there exist other types of remedies. But here the remedy is no longer clear: both courts are declining to even consider the newly discovered evidence. On the other hand, if I do nothing at this point and assume the new order is appealable upon remand/affirming, I'm afraid that later the COA would say "Too late, you should have filed for a Writ back then". Which of these two paths is most adequate?
I've read Writ opinions from other states, but their subject matter is too different to shed any light to this. Therefore, I will appreciate any insight you might have.
Thanks
Although one or more replies might be like "ask a lawyer", I should say that at this point I have more appellate experience than the opposing counsels (of my appeals) taken together. Besides, I also know of many Michigan attorneys who don't even make it to the COA.
Short version: While my appeal is pending, the trial judge keeps violating the Court Rules (MCR 7.208) by entering orders without a hearing. I need to know whether (1) a Writ of Phohibition would be the appropriate remedy since the judge is abusing/exceeding jurisdiction, or (2) the Court Of Appeals is likely deny my Writ Complaint with the argument that the new order by the trial court is (or upon remand will be) appealable.
Long version:
New evidence unexpectedly surfaced while my appeal as of right is pending. In fact, I had pursued that evidence during discovery but the judge precluded it. The defendant constantly gets in trouble everywhere, and at some point she impliedly waived the protective relief during her recent activity, which led to the newly discovered evidence. Although I'm confident about my position/appeal, the new evidence is dispositive on its own and non-cumulative.
Since the Court Of Appeals has jurisdiction over my case, I initially filed there a motion to expand the record with the newly discovered evidence (I actually started a thread about that in this forum). The COA denied my motion without stating any reason(s) for the denial. As a result, I filed the new evidence by motion in the trial court and within the time constraints in MCR 2.612(C).
In my motion at trial court, I stated very clearly all of the following:
1. That, absent leave of the court, the Court Rules prohibit the trial judge to alter the record while the case is in the COA.
2. That I reported to the COA the judge's former/similar violation, and that I submitted to the COA evidence (also available in the record on appeal) that disproves the false statements in that violation. I attached to my trial-motion the COA's receipt of my notification.
3. That the judge's violation of the Court Rules constitutes abuse of jurisdiction.
4. That Michigan and other states contemplate the Writ of Prohibition as a civil remedy for when a judge abuses or exceeds jurisdiction. To that effect, I cited Michigan [published] case law.
5. That upon completion of appellate review I will schedule a hearing for the motion "for relief from judgment", and for the time being the judge ought to refrain from renewedly altering the record.
Now the trial judge has denied my motion basically regurgitating my argument #1 (see above) and evidently ignoring #5. To top it off, the judge made additional incoherent excuses for why she has been violating the Court Rules. These new falsities can be disproved by the record on appeal.
Dilemma:
One aspect that makes me hesitate to pursue a Writ of Prohibition is that other writs (for mandamus or for superintending control) are denied when there exist other types of remedies. But here the remedy is no longer clear: both courts are declining to even consider the newly discovered evidence. On the other hand, if I do nothing at this point and assume the new order is appealable upon remand/affirming, I'm afraid that later the COA would say "Too late, you should have filed for a Writ back then". Which of these two paths is most adequate?
I've read Writ opinions from other states, but their subject matter is too different to shed any light to this. Therefore, I will appreciate any insight you might have.
Thanks
Appeals: Lc Entered New Order Despite Pending Appeal. is a Writ of Prohibition Appropriate
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