Order Michigan Supreme Court
Lansing, Michigan
April 2, 2010 Marilyn Kelly,
Chief Justice
139307(82)(83) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
JEWISH ACADEMY OF METROPOLITAN Stephen J. Markman
DETROIT, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 139307
COA: 283885
Oakland CC: 2004-058811-CZ
MICHIGAN HIGH SCHOOL ATHLETIC
ASSOCIATION,
Defendant-Appellant,
and
SOUTHFIELD CHRISTIAN, INKSTER PUBLIC
SCHOOLS, FRANKLIN ROAD CHRISTIAN, and
OAKLAND CHRISTIAN,
Defendants.
_________________________________________/
On order of the Court, the motion for reconsideration of this Court’s January 8,
2010 order is considered, and it is DENIED, because it does not appear that the order was
entered erroneously. The motion for stay is DENIED.
CAVANAGH, J., would grant reconsideration and, on reconsideration, would
remand this case to the Court of Appeals for consideration of the issues briefed by the
defendant that the Court of Appeals did not consider because those issues were not
included in the defendant’s statement of questions involved.
MARKMAN, J. (dissenting).
In Communities for Equity v Michigan High School Athletic Association, 178 F
Supp 2d 805 (2001), aff’d 459 F 3rd 676 (CA 6, 2006), the United States District Court
for the Western District of Michigan held that defendant, Michigan High School Athletic
Association’s, scheduling of high school athletic seasons violated the United States
Constitution, as well as both federal and state civil rights law, and directed the MHSAA
to reconfigure this scheduling. In the instant case, the trial court, concluding that the
MHSAA has again violated the United States constitution and state law, as well as the
Michigan constitution, now enjoins the MHSAA from maintaining an array of rules that
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define the conditions under which member schools may participate in interscholastic
sports competition, and again requires that defendant’s policies be revamped. Thus, in
yet one more realm of activity, the decisions of judges have preempted the decisions of
those who have been authorized by either contract or the representative processes of
government to undertake such decisions.
Perhaps, in the end, such preemption may be required by the law or the
constitution, but, if so, it will be no thanks to this Court, or the Court of Appeals, that this
will be known. For defendant here has been deprived even of the opportunity to attempt
to justify its policies on the grounds that these are in the best interests of hundreds of high
schools throughout this state, and in the best interests of hundreds of thousands of high
school athletes, as well as their families and friends. Specifically, defendant has been
denied the opportunity to seek to justify its policies on the grounds that these policies are
in the practical interests of administering statewide tournaments, that these policies
minimize the loss of classroom time for student athletes, that these policies effectively
manage available athletic facilities, that these policies minimize security concerns, that
these policies maximize community involvement, that these policies optimize athletic
revenues, that these policies promote consistent and predictable conditions under which
schools from widely varying geographic and other circumstances can engage in athletic
competition, and that these policies promote competitive equity. Neither the Court of
Appeals, nor this Court, will even deign to hear such arguments, and as a result the scope
of decision-making of judges will be enhanced and the scope of decision-making of other
public and private institutions will be diminished.
Instead, the majority enables the Court of Appeals to affirm the trial court’s
assertion of authority purely on the grounds that defendant’s brief on appeal failed to
contain a summary statement setting forth all of the questions involved in the appeal,
MCR 7.212(C)(5), and therefore that the omitted issues were waived. To clearly
understand, the Court of Appeals does not argue that any issues were not raised and
argued in defendant’s brief, or that any such issues were not argued thoroughly, or that
plaintiff did not equally thoroughly respond to these issues in its own brief, or that any
harm inured to plaintiffs as a result of the absent summary. Instead, the Court of Appeals
argues only that defendant failed to set forth a separate summary. Apparently concluding
that such a summary-less brief did not “substantially comply” with the court rules, MCR
7.212(I), and that a “supplemental brief” would also not “correct[] the deficiencies,” the
Court of Appeals effectively dismissed this appeal.
While acknowledgedly a matter within the Court of Appeals’ discretion, MCR
7.216(A)(10), I believe that this particular exercise constituted an abuse of discretion. In
virtually every previous decision in which an appeal has been effectively dismissed under
this rule, there were additional reasons why issues raised in an appellate brief were not
considered, such as a failure to support a claim with proper legal authority, that a claim
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was not presented to or ruled upon by the trial court, or that a claim implicated matters of
jurisdiction. Indeed, I am unaware of any previous decision that suggests that an
appellate court may refuse to consider fully-briefed issues — issues constituting the
principal issues in an appeal — for the sole reason that such issues were inadvertently not
included in the appellant’s summary statement of questions involved. Moreover, I am
unaware of any opinion that suggests that a brief of the instant sort does not
“substantially comply” with MCR 7.212. For these reasons, I would grant the motion for
reconsideration, and reverse and remand to the Court of Appeals for that court to fully
consider the substantive arguments raised by both parties.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 2, 2010 _________________________________________
d0330 Clerk