Opinion

Walker-Bey v. Department of Corrections

  • 222 Mich. App. 605
  • 564 N.W.2d 171
Court
Michigan Court of Appeals
Filed
Jun 16, 1997
Status
Published
Author
White
On the bench
Reilly, White, Schaefer
Cited by
8 cases
Authority
More cited than 7.7%

The opinion

White, J.

(concurring). While I am sympathetic to the views expressed by the majority in Houston v Lack, 487 US 266 ; 108 S Ct 2379 ; 101 L Ed 2d 245 (1988), 1 I concur on the basis that the court rule requires that filing be with the court clerk. While the Michigan Supreme Court could, by rule amendment or decision, provide that a prisoner’s appeal need not be filed directly with the clerk, it is not within the power of this Court to so amend the court rule.

[PJrisoners cannot take the steps other litigants can take to monitor the processing of their notices to appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped “filed” or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk’s process for stamping incoming mail, but only the pro se prisoner is forced to do so by his situation. . . . [T]he pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped “filed” on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, because his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities that slow mail service or the court clerk’s failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access — the prison authorities — and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice. [ 487 US 270 -271 (emphasis in original).]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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