Appeal of Right vs Application for Leave to Appeal in Michigan
“You most certainly can appeal that." This is a phrase you will hear a lot from people around you after a trial court judge issues a decision on your case. Friends say it. Family members assume it. And television courtroom dramas make it sound almost automatic. But the Michigan appellate practice tells a different story.
Two people may receive unfavorable trial court rulings on the same day. Yet, one has an appeal of right while the other must file an application for leave to appeal before the appellate court will even consider the issues. This means that some litigants are entitled to an appeal of right, which requires the Court of Appeals to hear their case.
Other litigants, however, must convince the court that their case deserves review. They do this by filing an application for leave to appeal. It's surprising to most people that Michigan's appellate system does not provide the same path to review in every case. And the path that you, the litigant, follow will often shape everything that follows.
Michigan appellate attorney Mark Linton has successfully handled both appeals of right and applications for leave to appeal throughout his career. That experience allows him to identify the correct procedural path early and avoid mistakes that can jeopardize an appeal before it begins.
Here, he explains Appeal of Right vs Application for Leave to Appeal in Michigan, when each path applies, and what you need to know before taking the next step.
If you're unfamiliar with how the Michigan appellate process works, our guide to How Michigan Criminal Appeals Work explains the overall process.
A Brief Overview of Michigan's Appellate System
Michigan appellate courts review the record created in the trial court to determine whether legal errors affected the outcome of the case. They do not conduct new trials or hear new witnesses.
The appellate process exists to ensure that Michigan trial courts correctly interpret and apply the law. Instead of deciding whether appellate judges would have reached a different conclusion, the court examines whether the trial court committed reversible legal error.
This distinction is important. And it's because a party cannot successfully appeal simply because they disagree with the outcome. The appellate court must identify a legal basis for reversing, modifying, or remanding the lower court's decision. The Michigan Supreme Court explained this in the People v. Carines (1999) case.
The Court in that case held that appellate review generally focuses on legal error. And it applies established standards of review rather than reconsidering factual findings made by the trial court or jury. Court rules and statutes create appellate jurisdiction. Therefore, parties must first determine whether they possess an automatic right to appeal or whether appellate review is discretionary.
What is an Appeal of Right?
An appeal of right is exactly what the name suggests. A party has the legal right to have the Michigan Court of Appeals consider the appeal without first requesting permission. This, however, does not mean the appellant automatically wins the appeal. Instead, it means the court must accept the case for review. But the appellant must properly invoke the court's jurisdiction and comply with all applicable procedural rules for them to benefit from the appeal of right.
MCR 7.203(A) principally establishes the Michigan Court of Appeals' jurisdiction over appeals of right. Under this rule, the Court of Appeals has jurisdiction over appeals of right filed from qualifying final judgments and final orders. And these are entered by Michigan circuit courts and other courts or tribunals as provided by law.
MCR 7.202(6) primarily determines whether an order qualifies as “final.” This rule carefully defines what constitutes a final judgment or final order in different categories of cases, including criminal, civil, probate, and family law appeals proceedings.
What is a Final Order?
Generally speaking, a final order is an order that resolves all claims before the trial court and leaves little or nothing further for the court to decide. In many civil cases, a final order is the judge's decision that finishes the entire case. It settles all the issues and decides the rights and responsibilities of everyone involved.
In criminal cases, the final decision is usually the judge's sentencing judgment. Once the sentence is entered, the defendant generally has the right to appeal. Probate and family law proceedings have their own specialized definitions. This is because those proceedings often involve multiple continuing decisions.
Determining whether an order is final can sometimes be surprisingly complex. And Michigan appellate courts have repeatedly emphasized that appellate jurisdiction depends upon satisfying these jurisdictional requirements.
In the Chen v. Wayne State University (2009) case, the Court of Appeals placed emphasis. Appellate jurisdiction depends upon whether the order appealed from qualifies as a final order under the Michigan court rules.
Jurisdiction cannot simply be created by agreement between the parties. Therefore, filing an appeal from a non-final order may result in dismissal regardless of the merits of the underlying legal issues.
Common Examples of Appeals of Right
Many appeals reaching the Michigan Court of Appeals involve appeals of right because they challenge final judgments entered by trial courts. Examples include:
Criminal Convictions After Trial
A defendant convicted following a jury or bench trial typically has an appeal of right from the judgment of sentence entered by the circuit court. And this is subject to the governing court rules. The appellate court may review issues such as improper admission or exclusion of evidence, constitutional violations, prosecutorial misconduct, and incorrect jury instructions.
It may also review sentencing errors and insufficient evidence under the applicable standard of review. The appeal is based entirely on the existing trial record rather than new evidence.
Final Civil Judgments
Businesses and individuals frequently file appeals of right after final judgments resolving civil lawsuits. And examples of these include contract disputes, personal injury cases, business litigation, property disputes, and employment litigation. Once the trial court enters a qualifying final judgment, the losing party generally may seek appellate review as of right.
Certain Family Law Orders
Some family law decisions qualify as final orders under the Michigan Court Rules and, therefore, support an appeal of right. Others require an application for leave. Examples of final orders include:
- A judgment of divorce that resolves all issues between the parties
- A final child custody determination
- A final order establishing paternity and the parties' parental rights and obligations
- An order terminating parental rights
- A final adoption order
Determining which procedure applies requires careful analysis of MCR 7.202 and the specific procedural posture of the case.
Appeals of Right Are Still Highly Technical
While an appeal of right guarantees access to appellate review, it does not excuse compliance with Michigan's procedural requirements. Among other things, appellants must timely file their claim of appeal, required filing fee, docketing statement, trial court record, appellate briefs, and appendix complying with the Michigan court rules.
The filing deadline is particularly important. MCR 7.204 establishes the procedures and time limits for filing a claim of appeal. In civil cases, you generally have only 21 days from the date the final order is entered to file your claim of appeal. In criminal cases, however, you typically have 42 days from the date of sentencing to initiate the process.
For a detailed explanation of filing deadlines and procedural requirements, see our guide to MCR 7.204.
Missing this jurisdictional deadline can cause the court to dismiss the appeal, even if the issues are strong. And Michigan appellate courts have consistently enforced these procedural requirements because appellate jurisdiction depends upon strict compliance with the governing court rules.
For that reason, the foundation of a successful appeal is often laid long before writing the first appellate brief. Experienced appellate counsel evaluates the record, identifies preserved legal issues, ensures jurisdiction exists, and develops a strategy that aligns with the applicable standard of review.
What is an Application for Leave to Appeal?
An application for leave to appeal is a formal request to the Michigan Court of Appeals. It asks the Court to review a lower court's decision. Here, the appellant does not have an automatic right to appeal.
Unlike an appeal of right, an application for leave to appeal does not guarantee that the Michigan Court of Appeals will review your case. Instead, you must persuade the appellate court that the issues presented deserve its attention. The procedures governing applications for leave are primarily found in MCR 7.205. And MCR 7.203(B) establishes the Court of Appeals’ jurisdiction.
The judges essentially review the application, supporting documents, and the legal issues presented. And this review allows them to decide whether to grant or deny leave to appeal. And, in some instances, they grant leave that's limited to specific issues. Here, the court is not deciding whether the appellant should ultimately win the appeal. Rather, it is determining whether the issues raised justify appellate review.
And for that reason, an effective application focuses on certain crucial demonstrations. These include demonstrating why the case presents a significant legal error, an important question of law, or a compelling reason for the Court of Appeals to intervene.
Understanding when leave is required is critical. This is because filing a claim of appeal when only an application for leave delays the appellate process and potentially jeopardizes your legal rights.
When is an Application for Leave Required?
Michigan law requires an application for leave in several situations. These include when you seek review of non-final orders or when no appeal of right exists under the Michigan court rules. Common examples include:
Appeals from Interlocutory (Non-final) Orders
Not every ruling made during a lawsuit ends the case. Trial courts frequently issue orders concerning discovery, motions, evidentiary issues, injunctions, and other procedural matters long before a final judgment is entered. These issues generally do not qualify as final orders under MCR 7.202(6).
This means an application for leave is necessary for these issues to receive appellate review. Michigan appellate courts discourage piecemeal appeals. This is because allowing immediate review of every interim ruling would unnecessarily delay trial proceedings.
That's why most legal errors are reviewed after the final judgment unless exceptional circumstances justify earlier intervention.
Appeals Following Guilty or No Contest Pleas
In criminal cases, the method of appeal often depends on how the conviction occurred. A defendant convicted after a trial may have an appeal of right in many circumstances. However, Michigan Compiled Laws (MCL) 770.3(1)(d) states that defendants who plead guilty or no contest frequently must seek appellate review by filing an application for leave.
And this application is subject to the governing court rules and applicable statutes. The Michigan Supreme Court has made repetitive explanations on this. A guilty plea waives many issues that could otherwise be raised following a trial. This is because the plea represents an admission of the essential elements of the offense.
Nevertheless, important issues may still be reviewed, including:
- Sentencing guideline errors
- Constitutional violations
- Jurisdictional defects
- Challenges to the validity of the plea itself
- Certain claims of ineffective assistance of counsel
Determining which issues survive a guilty plea requires careful legal analysis of both the trial record and Michigan appellate precedent.
Other Orders Requiring Leave
Applications for leave are also common in matters involving probate proceedings, family law disputes, and administrative agency decisions. They are also common in certain post-conviction rulings and orders specifically designated by court rule as requiring discretionary review.
Whether a party must file an appeal of right or an application for leave to appeal depends on the procedural posture of the case—not simply the significance of the underlying issue.
Although both procedures ultimately reach the Michigan Court of Appeals, they follow different procedural paths and are evaluated under different legal standards.
How Does the Court Decide Whether to Grant an Application for Leave to Appeal?
The Michigan Court of Appeals does not grant every application. Instead, it assesses if the application presents issues that warrant appellate review. As mentioned earlier, MCR 7.205 establishes the procedural requirements. However, Michigan appellate decisions guide the types of issues that often justify granting leave.
The Court may consider whether the trial court appears to have committed a significant legal error or whether the issue affects the proper interpretation of Michigan law. The Court also checks whether existing appellate decisions require clarification or whether the issue is likely to affect future cases.
It also considers whether immediate appellate review would promote the efficient administration of justice. An application that merely disagrees with the trial judge's decision, without identifying a meaningful legal error, is far less likely to be granted. That's why experienced appellate advocates spend considerable time identifying the strongest legal issues before filing an application.
Filing Deadlines for Applications for Leave
Applications for leave to appeal are subject to strict filing deadlines established by MCR 7.205. These deadlines vary depending on the type of order being appealed and the nature of the underlying proceeding. For most standard civil cases, agency decisions, or interlocutory appeals, you must file within 21 days of the date the judge signs the order.
If you're appealing an order that terminates parental rights, Michigan gives a specific 63-day window to submit an application. And to protect constitutional rights, criminal defendants generally have up to 6 months from their judgment of sentence to file an application for leave.
When you miss the applicable deadlines, the court may refuse to consider your application despite the merits of the legal arguments. Calculating appellate deadlines can involve post-judgment motions, amended orders, and other procedural considerations. So, parties should seek legal advice promptly after receiving an unfavorable ruling.
As with appeals of right, waiting too long to file an application for leave may permanently eliminate important appellate rights.
Key Differences Between Leave to Appeal and Appeals of Right
Understanding Appeal of Right vs Application for Leave to Appeal begins with jurisdiction, but the differences extend far beyond whether the Michigan Court of Appeals is required to hear the case. The type of appeal you file affects how arguments are presented, what the court expects at the outset, and the strategic decisions that shape the appellate process.
Your First Filing Serves a Different Purpose
One of the most significant differences lies in the objective of the initial filing. In an appeal of right, the appellant's first task is simply to invoke the Court of Appeals’ jurisdiction by timely filing a claim of appeal. The appellant also has to satisfy the procedural requirements established by the Michigan court rules.
The court must hear the appeal if jurisdiction exists. So, the appellant will have a full opportunity to develop legal arguments in the appellate briefs that follow.
An application for leave to appeal serves a much different function.
Before the court agrees to hear the case, the applicant must persuade the judges that appellate review is warranted. The application, therefore, functions as both a jurisdictional filing and an advocacy document. It must explain not only why the trial court may have erred, but also why the Court of Appeals should devote its limited judicial resources to reviewing the case in the first place.
The Court's Initial Focus is Different
The judges reviewing an appeal of right generally know that they will eventually decide the legal issues presented. And their focus initially centers on whether the appeal was properly filed and whether jurisdiction exists.
When reviewing an application for leave, however, the court first checks to see if the case deserves appellate review at all. At this stage, the judges are not conducting a full examination of every legal issue. Instead, they are deciding whether the case presents sufficient reasons to justify further proceedings.
This distinction often influences how appellate counsel frames their arguments.
Denial of Leave is Not the Same as Losing the Appeal
Many litigants mistakenly assume that if the Court of Appeals denies leave to appeal, it has determined that their legal arguments lack merit. And this is not necessarily true. A denial of leave only means that the court has chosen not to exercise its judicial discretion.
And even though the applicant believes the trial court committed legal error, the court may conclude that the issues do not presently warrant appellate review.
By contrast, when the Court of Appeals decides an appeal of right after it has had full briefing and consideration, it issues a decision resolving the merits of the issues properly before it. Understanding this distinction provides a deeper insight.
It explains why a denial of leave should not be automatically viewed as an endorsement of the trial court's reasoning.
The Strategic Burden is Different From the Beginning
Appeals of right and applications for leave also demand different litigation strategies. In an appeal of right, an attorney can generally devote more attention to developing comprehensive legal arguments. This is because the court has already accepted jurisdiction over the case.
In an application for leave, counsel must first convince the court that the case is worthy of review before reaching the merits. This often requires identifying issues that:
- Are particularly significant
- Demonstrate a substantial error of law
- Involve unsettled questions of Michigan law
- Otherwise justify immediate appellate intervention
Based on these different objectives, the most persuasive application for leave may look very different from the opening filings in an appeal of right. This is even when both arise from similar legal disputes.
Frequently Asked Questions About Applications for Leave vs Appeals of Right in Michigan
Can the Michigan Court of Appeals treat my application for leave as an appeal of right?
Yes, in certain situations. If you mistakenly file an application for leave when the order is actually appealable by right, the Court of Appeals may treat the filing as a claim of appeal. Michigan court rules allow this rather than dismissing the case outright. However, you should not rely upon this, as this is through the judge's discretion as per MCR 7216(A)(7).
Can the Court of Appeals grant leave only on some instead of all the issues I raise?
Yes. Filing an application does not obligate the court to consider every issue raised. It may grant leave limited to specific legal questions while declining to review others. That's why it's good to focus your application on the strongest and most significant issues rather than attempting to challenge every unfavorable ruling made by the trial court.
Is it sometimes better to wait for a final judgment instead of immediately seeking leave to appeal?
In some cases, yes. Seeking interlocutory review can increase costs and delay the trial court proceedings. Sometimes, events that occur after the case concludes makes the disputed issue irrelevant. Other times, the issue may become stronger when viewed in the context of a complete record.
Does a denied application for leave make it harder to appeal later?
Not necessarily. If the court denies leave from a non-final order, you may still be able to challenge that ruling after the trial court enters a final judgment. However, this happens only when the issue has been properly preserved. In many cases, appellate courts ultimately review interlocutory rulings as part of a later appeal of right.
Can my appeal fail even when the trial court made a mistake?
Yes. Not every legal error justifies reversal. Michigan appellate courts often ask whether the error actually affected the outcome of the case. If the court concludes that the mistake was harmless under the applicable legal standard, the judgment may still be affirmed despite the existence of the error.
If my appeal is by right, does it mean the court will examine every mistake made by the trial court?
No. An appeal of right guarantees the opportunity for appellate review. It does not guarantee review of every alleged error. The Court generally considers only issues that were properly preserved, adequately briefed, and supported by the record.
Why do two people with nearly identical cases sometimes have different appellate rights?
Because small procedural differences can dramatically affect appellate jurisdiction. The timing of the order, the way the case was resolved, and the court in which it originated may determine whether review is available by right or only by leave. Whether a party pleaded guilty rather than went to trial is also another determining factor.
Don't Lose Your Appeal Before it Begins
Understanding Appeal of Right vs Application for Leave to Appeal in Michigan can determine whether your case reaches appellate review at all. Filing the wrong type of appeal, missing a critical deadline, or misunderstanding your appellate rights can end the case before the Court of Appeals considers its merits.
The Michigan appellate process leaves very little room for procedural mistakes. Choosing the correct appellate path at the outset helps preserve your rights, protects critical filing deadlines, and gives your case the strongest opportunity to be heard on its merits.
And when your future depends on getting it right the first time, experience matters. Contact Mark Linton today to make sure your appeal is decided on its merits, not lost on a technicality.
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