Motion practice in delinquency cases is governed by MCR 2.119. MCR 3.922(D).
Unless a different period is set by the court rules or by the trial court (for good cause), a written motion, notice of the hearing on the motion, and any supporting brief or affidavits must be served as follows:
•at least nine days before the time set for hearing if served by first-class mail.
•at least seven days before the time set for hearing if served by delivery under MCR 2.107(C)(1) (delivery to an attorney), MCR 2.107(C)(2) (delivery to a party),1 or MCR 1.109(G)(6)(a) (electronic service). MCR 2.119(C)(1).
Unless a different period is set by the court rules or by the trial court (for good cause), any response to a motion (including a brief or affidavits) required or permitted by the court rules must be served as follows:
•at least five days before the hearing if served by first-class mail.
•at least three days before the hearing if served by delivery under MCR 2.107(C)(1) (delivery to an attorney), MCR 2.107(C)(2) (delivery to a party),2 or MCR 1.109(G)(6)(a) (electronic service). MCR 2.119(C)(2).
The court may set different times for serving a motion or a response. MCR 2.119(C)(3). “[I]ts authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.” Id.
Unless the court sets a different time, a motion must be filed at least seven days before the hearing, and any response to a motion required or permitted by the court rules must be filed at least three days before the hearing. MCR 2.119(C)(4).
B.Required Form of Written Motions3
Unless a motion is made during a hearing or trial, it must be in writing, state with particularity the grounds and authority on which it is based, state the relief or order sought, and be signed by the attorney or party as set out in MCR 1.109(D)(3) and MCR 1.109(E). MCR 2.119(A)(1).
Committee Tip
Note that only an attorney or party may sign a motion. MCR 1.109(E); MCR 2.119(A)(1). Thus, motions should not be submitted by probation officers or others who are not attorneys of record or parties in a case.
“A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C)[4] regarding citation of unpublished Court of Appeals opinions.” MCR 2.119(A)(2). However, a trial court need not deny a motion if it is filed without a brief, if the motion itself contains citations to legal authority supporting its proposition. Woods v SLB Prop Mgmt, LLC, 277 Mich App 622, 625-626 (2008). “Except as permitted by the court or as otherwise provided in [the Michigan Court Rules], no reply briefs, additional briefs, or supplemental briefs may be filed.” MCR 2.119(A)(2)(b).
Unless the court permits otherwise, the combined length of a motion (or response) and brief may not exceed 20 pages double spaced (exclusive of exhibits and attachments). MCR 2.119(A)(2)(a). Permission to file a motion and brief in excess of the 20-page limit should be requested sufficiently in advance of the hearing on the motion to allow the opposing party adequate opportunity for analysis and response. See People v Leonard, 224 Mich App 569, 578-579 (1997).
The motion and notice of the hearing may be combined into one document. MCR 2.119(A)(3).
Unless specifically required by rule or statute, a pretrial motion need not be verified or accompanied by an affidavit. MCR 1.109(D)(3). Although an affidavit is not required, if one is included with a motion, MCR 2.119(B) sets out its required form. Porter v Porter, 285 Mich App 450, 461 (2009). Under MCR 2.119(B)(1), an affidavit filed in support of or in opposition to a motion must:
“(a) be made on personal knowledge;
(b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and
(c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.”
In addition, an affidavit must:
• be verified by oath or affirmation, MCR 1.109(D)(1)(f) and MCR 1.109(D)(3)(a);
• include sworn or certified copies of any documents it refers to, unless the documents (1) have already been filed; (2) are public record in the county in which the action is pending; (3) are in the adverse party’s possession, and the affidavit or motion states this fact; or (4) it would be unreasonable or impracticable to attach them, and the affidavit or motion states this fact, MCR 2.119(B)(2); and
•be served on the opposing party within the same timeframe as written motions, MCR 2.119(C)(1).5
An evidentiary hearing must be conducted whenever a defendant challenges the admissibility of evidence on constitutional grounds. People v Reynolds (Anthony), 93 Mich App 516, 519 (1979). However, where a defendant fails to substantiate the claim that the evidence is inadmissible on constitutional grounds or it is apparent that the defendant’s allegations do not rise to the level of a constitutional violation, no evidentiary hearing is required. People v Johnson (James), 202 Mich App 281, 285 (1993). A trial court’s decision whether to hold an evidentiary hearing is reviewed for an abuse of discretion. People v Unger, 278 Mich App 210, 216-217 (2008).
At an evidentiary hearing, burdens of proof and presumptions become issues. The phrase “burden of proof” encompasses both the burden of production and the burden of persuasion. McKinstry v Valley Obstetrics-Gynecology Clinic, PC, 428 Mich 167, 178-179 (1987).6
In determining whether the proffered evidence is admissible under the technical requirements of the rules of evidence, the trial court applies a preponderance of the evidence test. Bourjaily v United States, 483 US 171, 175-176 (1987). Whether the technical requirements of the rules of evidence have been met for the admissibility of evidence must be resolved by the trial court. See MRE 103(a).
While the court rules do not require the trial court to make findings of fact with respect to pretrial motions, “it is always preferable for purposes of appellate review that a trial court explain its reasoning and state its findings of fact with respect to pretrial motions[.]” People v Shields, 200 Mich App 554, 558 (1993); MCR 2.517(A)(4).
The parties have the right to a judge at an evidentiary hearing. See MCR 3.912(B) (parties have the right to a judge at a hearing on the formal calendar, which includes evidentiary hearings).
E.Motions for Rehearing or Reconsideration7
1.Requirements
A motion for reconsideration or rehearing must be filed and served 21 days after entry of an order deciding the motion, unless a more specific court rule exists and states otherwise. MCR 2.119(F)(1).
Responses and oral arguments are not permitted unless directed by the court. MCR 2.119(F)(2). “Any response by parties must be in writing and filed with the court and served on the opposing parties within 7 days after notice of the motion.” MCR 3.992(C).
“The moving party must demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error.” MCR 2.119(F)(3).
“‘[R]ehearing [or reconsideration] will not be ordered on the ground merely that a change of members of the bench has either taken place, or is about to occur.’” People v White (Kadeem), 493 Mich 962, 962 (2013) (quoting Peoples v Evening News Ass’n, 51 Mich 11, 21 (1883).
2.Decision
“The purpose of MCR 2.119(F) is to allow a trial court to immediately correct any obvious mistakes it may have made in ruling on a motion, which would otherwise be subject to correction on appeal, but at a much greater expense to the parties. The time requirement for filing a motion for reconsideration or rehearing insures that the motion will be brought expeditiously.” Bers v Bers, 161 Mich App 457, 462 (1987) (internal citation omitted).
Generally, a motion for rehearing or reconsideration that presents the same issue ruled on by the court, either expressly or by reasonable implication, will not be granted. MCR 2.119(F)(3). However, “[MCR 2.119(F)(3)] does not categorically prevent a trial court from revisiting an issue even when [a] motion for reconsideration presents the same issue already ruled on; in fact, it allows considerable discretion to correct mistakes.” Macomb Co Dep’t of Human Servs v Anderson, 304 Mich App 750, 754 (2014), citing In re Moukalled Estate, 269 Mich App 708, 714 (2006); see also People v Walters (Jayne), 266 Mich App 341, 350 (2005) (adherence to the palpable error provision contained in MCR 2.119(F)(3) is not required; rather, the provision merely offers guidance to a court by suggesting when it may be appropriate to grant a party’s motion for reconsideration).
A trial court’s decision to grant or deny a motion for reconsideration is reviewed for an abuse of discretion. Kokx v Bylenga, 241 Mich App 655, 658-659 (2000). “[MCR 2.119(F)] allows the court considerable discretion in granting reconsideration to correct mistakes, to preserve judicial economy, and to minimize costs to the parties.” Kokx, 241 Mich App at 659. The court also has discretion to limit its reconsideration to the issue it believes warrants further consideration. Id.
A motion for reconsideration or rehearing may not be entertained by a court after entry of an order changing venue to another court, unless the order specifies an effective date. Frankfurth v Detroit Med Ctr, 297 Mich App 654, 656, 658, 661-662 (2012) (holding that “once a transfer of venue is made, the transferee court has full jurisdiction over the action [under MCL 600.1651] and, therefore, the transferor court has none[; a]ny motion for rehearing or reconsideration would have to be heard by whichever court has jurisdiction over the action at the time the motion is brought, which, after entry of an order changing venue, would be the transferee court[]”).8