Order Michigan Supreme Court
Lansing, Michigan
October 31, 2008 Clifford W. Taylor,
Chief Justice
136574 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
COREY A. ASKEW, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 136574
COA: 282916
Alger CC: 07-004591-AH
DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
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On order of the Court, the application for leave to appeal the May 8, 2008 order of
the Court of Appeals is considered, and it is DENIED, because we are not persuaded that
the question presented should be reviewed by this Court.
KELLY, J. (dissenting).
The issue in this case is whether the Court of Appeals practice of refusing to allow
prisoners to commence new appeals until they have paid outstanding fees and costs is
constitutional. It appears that the practice is consistent with MCL 600.2963(8), which
provides that “A prisoner who has failed to pay outstanding fees and costs as required
under this section shall not commence a new civil action or appeal until the outstanding
fees and costs have been paid.” However, this statute could be unconstitutional because
it prevents a person from having access to the courts.
Plaintiff claims he is indigent. If indigent, he is unable to pay back fees and costs.
Yet, this statute prevents him from accessing the courts until he pays back fees and costs.
Hence, he is in a Catch-22. He cannot pay the outstanding fees until he acquires the
necessary funds, and he cannot file a new appeal until he pays the outstanding fees.
In an unpublished opinion out of the United States District Court for the Western
District of Michigan, Judge Richard Enslen indicated that he was troubled by this
2
practice.1 I believe this Court should grant leave to appeal. We should consider whether
it is unconstitutional to dismiss an appeal for failure to pay outstanding fees when a
plaintiff can show that he is indigent.
1
Bridges v Collette, 2008 US Dist LEXIS 58, *7 n 3 (2008). “Having determined that
the suit must be dismissed, the Court is nevertheless troubled that this prisoner, and
others like him, appear to be indigent and appear to have lawsuits dismissed due to fee
balances which they cannot cure given their indigency. Should this pattern persist, then
eventually the United States Supreme Court would be obliged to address why the
Defendant Judges are not providing equal access to the courts to indigent prisoners.”
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.
October 31, 2008 _________________________________________
d1028 Clerk