Michigan Cases February 10, 2023: Hiser v. Vill. of Mackinaw City

Case Description

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LC Nos. 20-106876-AA; 20-106931-AA

James Robert Redford Presiding Judge Kirsten Frank Kelly Anica Letica Judges

ORDER

These consolidated appeals return to us on remand for reconsideration in light of Saugatuck Dunes Coastal Alliance v Saugatuck Twp, 509 Mich. 561;__N.W.2d__(2022) ('' Saugatuck Dunes"). See Hiser v Village of Mackinaw City,__ Mich__; 979 N.W.2d 849 (2022). Having considered our Supreme Court's remand instructions and the parties' motions and supplemental briefs on remand, we rule as follows.

Pursuant to MCR 7.216(A)(7), the Emmet Circuit Court's August 24, 2020 order is VACATED and this matter is REMANDED to that Court for further proceedings consistent with this order. We retain jurisdiction.

When sitting as an error-correcting appellate court, this Court generally declines to consider and decide an issue that has not yet been ruled upon below, see, e.g., O'Connell v Dir of Elections, 316 Mich.App. 91, 109; 891 N.W.2d 240 (2016), and this is particularly true of fact-dependent issues, see In re Martin, 200 Mich.App. 703, 717; 504 N.W.2d 917 (1993) ("It is not the function of an appellate court to decide disputed questions of fact in the first instance") (quotation marks and citation omitted). Given that Saugatuck Dunes had not yet been decided when the circuit court made the ruling giving rise to this appeal, the circuit court neither could nor did apply the test announced in Saugatuck Dunes when deciding whether appellant Hiser qualified as a "party aggrieved" for purposes of MCL 125.3605. In our view, because it is unclear on the existing record whether the circuit court would have reached the same result had it applied that new test, the most prudent course is to remand this matter to that court for reconsideration in light of Saugatuck Dunes in the first instance. See Saugatuck Dunes, 509 Mich. at 600 (remanding "to the circuit court for reconsideration of [the] appellant's arguments regarding standing under MCL 125.3604(1) and MCL 125.3605" because it was "not clear whether the lower courts would have reached the same result as to standing" under the new test).

On remand, the circuit court should reconsider this matter in light of this order and Saugatuck Dunes and may hold whatever proceedings it deems necessary to that end. After doing so, the circuit court should issue an opinion and order setting forth its ruling and underlying reasoning. The proceedings on remand shall commence within 56 days of the Clerk's certification of this order, and they shall be given priority on remand until they are concluded. The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand. The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings.

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In light of the foregoing, the motions to dismiss pursuant to MCR 7.211(C)(2) and to expand the record on remand are DENIED without prejudice to the parties filing similar motions or raising similar arguments on remand in the circuit court.