At the CDRC, we regularly receive questions from defense attorneys and incarcerated individuals around the state. In this column, we will reprint our answers to common or interesting questions (with any case identifying details omitted or modified) that might be helpful to a wider audience.

In this issue we answer a reader’s question about what questions must be asked in an appellate brief’s statement of questions presented to avoid an unintentional ‘waiver’ of issues presented in the brief’s argument. 

Question. I’ve been an appellate attorney for nearly a decade but have recently been confused and concerned about what to include in the statement of questions presented in my appellate briefs

Last month, the Court of Appeals issued an opinion saying that I “waived” an alternative theory supporting relief because it was not included in my statement of questions. My brief argued that the trial court violated Beck when it assessed points for an offense variable based on acquitted conduct and argued in the alternative that counsel was ineffective in failing to object. After explaining why my argument failed on the merits, the Court of Appeals wrote that even if Beck did apply and my client’s guidelines were incorrect, trial counsel “waived” the issue by agreeing that the guidelines were scored correctly at sentencing and I “waived” the ineffective assistance of counsel claim by not including in my statement of questions presented.

I’m familiar with the text of the Court Rule but am very confused about what it means and how it is being applied.

You are not alone. Many appellate practitioners have felt exactly the same way after receiving a Court of Appeals opinion stating that an issue that was fully developed in their brief’s argument was ‘waived’ or ‘abandoned’ because it was not explicitly set forth in the brief’s statement of questions presented. Although there may have been an uptick in recent Court of Appeals decisions deeming certain arguments waived or abandoned on this basis, the requirement’s apparently uneven or rigid enforcement is not new.

In 1930, the Michigan Supreme Court adopted a rule requiring that appellate briefs include a statement of questions presented based on the recommendation of the Michigan Procedure Commission.¹ The Commission wrote that the requirement was “designed to enable the court to obtain an immediate view of the nature of the controversy,” and urged the Court to treat the requirement as mandatory and deem any appeals described in non-conforming briefs as ‘non prossed’ without exception.²

A year after adopting the rule, the Michigan Supreme Court acted on the Commission’s recommendation when it wrote that certain defenses to a breach of contract claim “appear to have been waived, as they are not included in the statement of questions involved and will not be considered.”³ However, just two years after this initial decision, the Court wrote that it had examined other “points,” even though they were “not covered in the statement of questions,”⁴ and a year after that, Justice Fead criticized the majority opinion for granting relief on an issue that was not raised in the statement of questions.⁵  

The current version of the Rule requires every appellate brief filed in the Michigan Court of Appeals and Supreme Court to include “[a] statement of questions involved, stating concisely and without repetition the questions involved in the appeal.”⁶ The rule requires that “[e]ach question must be expressed and numbered separately and be followed by the trial court's answer to it.”⁷ 

The Court of Appeals’ refusal to consider an issue that was fully developed in brief’s argument because it was not specifically described in the statement of questions can feel arbitrary, formalistic, and contrary to the Court Rules’ stated purpose, which is “to secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties.”⁸ But it does not matter whether the Court’s application of the Rule is consistent or correct. What matters is you properly present all meritorious issues on your clients’ behalf, so the Court does not have the option of deeming a winning issue ‘waived’ by an unintentional omission or a misunderstanding of what the Court Rule requires. 

The Staff Comments to the Court Rule do not provide clear guidance on the level of detail an appellant must include the issue in the statement of questions to comply with the requirement and there are no foundational appellate decisions examining the level of detail that must be included to avoid an unintended waiver. However, it is clear from nearly 100 years of caselaw that the statement of questions must ask more than just whether a party is entitled to the relief being sought but is not required to parse every issue into granular sub-issues that all must be answered in the affirmative to entitle your client to relief. 

The best advice that we’ve received about satisfying the requirement is to draft the statements of questions presented alongside each argument’s statement regarding issue preservation. A separate question should be asked for each theory, and each alternative theory, you argue your client is entitled to relief. For example, if the trial court overruled a hearsay objection to the admission of testimonial hearsay, and you intend to argue that the evidence’s admission violated the Rules of Evidence and the Confrontation Clause, there are two distinct questions being asked that have two different answers. The trial court “did not answer” whether the evidence’s admission violated your client’s constitutional right to confrontation, but answered “no,” when asked whether its admission violated MRE 802. If you also intend to raise the argument as a separate ineffective assistance of counsel claim based on the attorney’s failure to properly preserve the constitutional claim, the argument asks a third question about whether your client’s right to the effective assistance of counsel was violated by their attorney’s failure to make a proper objection to the admission of testimonial hearsay.

Treating the statement of questions as a checklist has helped us avoid an inadvertent ‘waiver’ of a portion of our client’s argument, but has also made it more difficult to follow the best advice we’ve received about drafting the statement of questions presented, which is to use this section of the brief to begin telling our client’s story and persuading the reader of their entitlement to relief.

The approach we most often use to accomplish both goals is to include a short paragraph describing the factual background necessary to understand the issue and then list each question the argument raises. In the hearsay example above, before asking any questions, you might posit the following facts under Question 1:

“The prosecution admitted the recording of a 911 call made by a non-testifying witness, who said the shooter had blue eyes and blonde hair. Trial counsel objected to the admission of the recording as hearsay but was overruled. Although counsel sought to exclude the recording from evidence, counsel did object to the violation of [defendant’s] constitutional right to confrontation."

MCR 7.215(B) does not prohibit parties from including assertions in their statement of questions presented, and we have never seen the Court of Appeals or Supreme Court reject a brief or refuse to consider an argument because the statement of questions describing the issue contained too many details or asked too many questions. And by including a brief factual introduction to each set of questions you can ensure that the requirement is satisfied while providing the reader the context they need to know what the right answer is and understand why the lower court’s incorrect answer (or non-answer) entitles your client to the relief they are seeking.

Subscriber Comments

• You must be a subscriber to view comments