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Approved, Michigan Court of Appeals

LOWER COURT Electronically Filed CASE NO.


Lower Court 17-000216-MZ
Michigan Court of Claims BRIEF COVER PAGE Court of Appeals 341172

(Short title of case)


Case Name: COUNTY OF OAKLAND v STATE OF MICHIGAN et al

1. Brief Type (select one): ✔ APPELLANT(S) APPELLEE(S) REPLY


CROSS-APPELLANT(S) CROSS-APPELLEE(S) AMICUS
OTHER [identify]:

2. This brief is filed by or on behalf of [insert party name(s)]: County of Oakland

3. This brief is in response to a brief filed on by .

4. ORAL ARGUMENT: ✔ REQUESTED NOT REQUESTED

5. THE APPEAL INVOLVES A RULING THAT A PROVISION OF THE CONSTITUTION, A STATUTE, RULE
OR REGULATION, OR OTHER STATE GOVERNMENTAL ACTION IS INVALID.
[See MCR 7.212(C)(1) to determine if this applies.]

6. As required by MCR 7.212(C), this brief contains, in the following order: [check applicable boxes to verify]
✔ Table of Contents [MCR 7.212(C)(2)]
✔ Index of Authorities [MCR 7.212(C)(3)]
✔ Jurisdictional Statement [MCR 7.212(C)(4)]

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✔ Statement of Questions [MCR 7.212(C)(5)]
✔ Statement of Facts (with citation to the record) [MCR 7.212(C)(6)]
✔ Arguments (with applicable standard of review) [MCR 7.212(C)(7)]
✔ Relief Requested [MCR 7.212(C)(9)]
✔ Signature [MCR 7.212(C)(9)]

7. This brief is signed by [type name]: /s/ Keith Lerminiaux


Signing Attorney’s Bar No. [if any]: P30190

(9/10) E-File Brief Cover Page MCR 7.212(C)


STATE OF MICHIGAN
IN THE COURT OF APPEALS

COUNTY OF OAKLAND,

Appellant,
COA Case No. 341172
-vs- Lower Court No. 17-000216-MZ

STATE OF MICHIGAN, MICHIGAN


DEPARTMENT OF LICENSING AND
REGULATORY AFFAIRS, AND MICHIGAN
INDIGENT DEFENSE COMMISSION

Appellees,
_____________________________________________________________________________/
Keith Lerminiaux (P30190) Bridget K. Smith (P71318)
Oakland County Corporation Counsel Assistant Attorney General
Attorney for Appellant Attorney for Appellees
1200 N Telegraph Rd., Dept. 419 Licensing and Regulation Division
Pontiac, MI 48341-1032 P.O. Box 30758
Main: (248) 858-0550 Lansing, MI 48909
lerminiauxk@oakgov.com Phone: (517) 373-1146

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Mary Ann Jerge (P46574)
Oakland County Asst. Corporation Counsel
Attorney for Appellant
1200 N Telegraph Rd., Dept. 419
Pontiac, MI 48341-1032
Main: (248) 858-0550
jergem@oakgov.com

__________________________________________________________________________/

APPELLANT’S BRIEF ON APPEAL

ORAL ARGUMENT REQUESTED


TABLE OF CONTENTS

I. Table of Contents ................................................................................................................. i

II. Index of Exhibits ................................................................................................................. ii

III. Index of Authorities ........................................................................................................... iii

IV. Statement of Jurisdiction.................................................................................................... vi

V. Statement of Questions Presented .................................................................................... vii

VI. Introduction ..........................................................................................................................1

VII. Statement of Facts ................................................................................................................2

VIII. Standard for Review ........................................................................................................... 9

IX. Argument .......................................................................................................................... 10

A. The Michigan Indigent Defense Commission Act, MCL 780.991 et seq, is an


unconstitutional enabling act that violates the separation of powers doctrine under
Article 3, §2 of the Michigan Constitution of 1963 .....................................................10

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B. The Michigan Indigent Defense Commission’s Minimum Standards 1-4 are not
authorized by law and are unconstitutional under the separation of powers doctrine of
Article 3, §2 of the Michigan Constitution of 1963 .....................................................18

C. The Michigan Indigent Defense Commission has no legal authority to create a new
constitutional right to counsel at arraignment ..............................................................24

D. MIDC established compulsory rules and procedures are invalid and do not have the
force and effect of law because MIDC is not compliant with the procedural
requirements of the Administrative Procedures Act (APA), MCL 24.201 et seq .......31

X. Conclusion and Relief Request ..........................................................................................36

i
INDEX OF EXHIBITS

Exhibit A. Minimum Standards for Indigent Criminal Defense Services – Set 1 (May 22, 2017)

Exhibit B. Michigan Supreme Court Administrative Order No. 2016-2 (June 1, 2016)

Exhibit C. Memo from SCAO Milton Jack, Jr. (January 20, 2016)

Exhibit D. Guide for Submission of Compliance Plans, Cost Analyses, and Local Share
Calculations (Summer 2017)

Exhibit E. Compliance Plan for Indigent Defense Standards 1 – 4 Instructions (August 2017)

Exhibit F. Email from MIDC Exec. Dir Jonathon Sacks (July 26, 2017)

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ii
INDEX OF AUTHORITIES

Cases
Adkins v. Michigan Dept. of Civil Service Commission, 140 Mich. App. 202, 213; 362 N.W.2d
919 (1985) ................................................................................................................................. 26
Attorney General of Michigan v. Michigan Public Service Commission, 243 Mich. App. 487,
491; 625 N.W.2d 16 (2000) ........................................................................................................ 4
Blank v. Department of Corrections, 461 Mich. 103, 113 – 114; 611 N.W.2d 530 (2000) ... 25, 27
Cardinal Mooney High School v. High School Athletic Assoc., 437 Mich. 75, 80; 457 N.W.2d 21
(1991) .......................................................................................................................................... 9
Coalition for Rights v. DSS, 431 Mich. 172, 177; 428 N.W.2d 335-178 (1988).......................... 32
County of Delta v. Michigan Dept. of Natural Resources, 118 Mich. App. 458, 468; 325 N. W.
2d. 455 (1982) ........................................................................................................................... 32
Dance Corp. v. City of Madison Heights, 466 Mich. 175, 183; 644 N.W.2d 721 (2002) ............ 32
Detroit Base Coalition for Human Rights v. Dir. Dept. of Social Svs., 431 Mich. 172, 183; 428,
N.W. 2d 335 (1988) .................................................................................................................. 32
DNR v. Seaman, 396 Mich. 299, 308-309; 240 N.W.2d 206 (1976); ........................................... 26
Faircloth v. Family Independence Agency, 232 Mich. App. 391, 401; 591 N.W. 2d 314 (1998).. 9
Goins v. Greenfield Jeep Eagle, 449 Mich. 1, 9-10; 534 N.W.2d 467 (1995) ............................. 33
Grievance Administrator v. Lopatin, 462 Mich. 235, 242; 612 N.W.2d 120 (2000) ................... 11
Hoffman v. Otto, 277 Mich. 437, 440/269 N.W. 225 (1936) ........................................................ 13
In Re Southard, 298 Mich. 75, 77; 298 N.W. 457 (1941) ............................................................ 11
INS v. Chadha, 462 U.S. 919; 103 S. Ct. 2764 (1983) ................................................................. 25
Judicial Attorneys Ass’n v. Michigan, 459 Mich. 291, 298; 586 N.W. 2d 635 (1998) .................. 3

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Judicial Attorneys Ass’n v. Michigan, 459 Mich. 291, 302-304; 586 N.W. 2d 894 (1998) .. 10, 11,
13, 23
Krohn v. Board of Medicine, 98 Mich. App. 129, 133; 296 N.W.2d 57 (1980) ........................... 26
McDougall v. Schanz, 461 Mich. 15; 597 N.W.2d 148 (1999) ...................................................... 9
Osius v. St. Clair Shores, 344 Mich 693, 697; 75 N.W. 2d 25 (1956) ......................................... 25
People v. Cameron, 319 Mich. App. 215, 224; 900 N.W.2d 658 (2017) ............................... 12, 13
People v. Green, 260 Mich. App. 392, 399-400; 677 N.W.2d 363 (2004)................................... 25
People v. Horton, 98 Mich. App. 62, 72; 296 N.W.2d 184 (1980) .............................................. 25
People v. Kennedy, 384 Mich. 339, 343; 183 N.W.2d 297 (1971) ......................................... 15, 23
People v. Killibrew, 16 Mich. App. 624, 627; 168 N.W.2d 423 (1969) ....................................... 24
People v. O’Neal, 122 Mich.App. 370, 373; 333 N.W. 2d 56 (1983) .......................................... 25
Rothgery v. Gillespie County, 554 U.S. 191, 212-213; 128 S. Ct. 2578, 2592, (2008) ................ 24
Schlossberg v. State Bar Grievance Board, 388 Mich. 389, 395; 200 N. W. 2d 219 (1972) ....... 11
Soap & Detergent Ass’n v. Natural Resources Commission, 415 Mich. 728, 752; 330 N.W.2d
346 (1982) ........................................................................................................................... 11, 12
Strauss v. Governor, 459 Mich. 526; 592 N.W.2d 53 (1999) ...................................................... 18
UAW v. Green, 498 Mich. 282, 290; 870 N.W.2d 867 (2015) ..................................................... 13
United States v. Salerno, 481 U.S. 739, 745; 107 S. Ct. 2095 (1987) .......................................... 10
Statutes
MCL 24.201 .................................................................................................................................... 1
MCL 24.207 .................................................................................................................................. 32
MCL 24.207 (a) – (r) .................................................................................................................... 32
iii
MCL 24.207 (r) ............................................................................................................................. 32
MCL 24.226 .................................................................................................................................. 32
MCL 24.231 .................................................................................................................................. 33
MCL 24.264 .................................................................................................................................. 33
MCL 330.2020 .............................................................................................................................. 21
MCL 769.1k ............................................................................................................................ 12, 13
MCL 780.981 ......................................................................................................................... passim
MCL 780.983 (b) ................................................................................................................ 4, 13, 15
MCL 780.983 (f) ............................................................................................................................. 3
MCL 780.983 (g)(i) ............................................................................................................ 4, 14, 15
MCL 780.983 (h) ............................................................................................................................ 5
MCL 780.985 (1) ................................................................................................................ 2, 13, 15
MCL 780.985 (1) and (2) ................................................................................................................ 4
MCL 780.985 (1), (3) and (6) ................................................................................................. 10, 14
MCL 780.985 (3) .............................................................................................................. 17, 27, 28
MCL 780.985 (4) .......................................................................................................................... 33
MCL 780.985 (5) .................................................................................................................. 6, 9, 17
MCL 780.987 (1) ............................................................................................................................ 2
MCL 780.987 (k) ............................................................................................................................ 2
MCL 780.989 (1)(a) ........................................................................................................ 3, 5, 10, 14
MCL 780.989 (1)(b)........................................................................................................................ 3
MCL 780.989 (1)(f) and (2) ...................................................................................................... 4, 17
MCL 780.989 (1)(g)...................................................................................................................... 33
MCL 780.989 (d)(ii) ..................................................................................................................... 33

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MCL 780.989 (g) .......................................................................................................................... 33
MCL 780.991 (1) - (2) .................................................................................................................. 33
MCL 780.991 (1) – (2)............................................................................................................ 10, 14
MCL 780.991 (1)(a) ............................................................................................................... passim
MCL 780.991 (2) ...................................................................................................................... 4, 17
MCL 780.991 (2)(a) – (f) .............................................................................................................. 15
MCL 780.991 (3)(a) ............................................................................................................... passim
MCL 780.993 (2) ............................................................................................................................ 5
MCL 780.993 (3) ........................................................................................................................ 5, 7
MCL 780.993 (3) and (10) ...................................................................................................... 14, 15
MCL 780.993 (4) ................................................................................................................ 8, 33, 35
MCL 780.997 (2) ............................................................................................................................ 8
MCL 8.123 (B).............................................................................................................................. 29
Other Authorities
PA 93 of 2013 ................................................................................................................................. 2
Rules
MCR 1.111.................................................................................................................................... 21
MCR 6.005.................................................................................................................................... 29
MCR 6.005 (B) ....................................................................................................................... 28, 29
MCR 6.005 (D) ............................................................................................................................. 29
MCR 6.104 (E).............................................................................................................................. 29
MCR 6.104 (E)(3) ......................................................................................................................... 29
iv
MCR 6.124.................................................................................................................................... 21
MCR 6.610 (D)(2) ........................................................................................................................ 30
MCR 8.123 (D) and (F) ................................................................................................................ 29
Constitutional Provisions
Article 3, §2 of the Michigan Constitution of 1963……………… ..... ……………….3, 10, 13, 17
Article 4, §26 of the Michigan Constitution of 1963 ........................................................ 25, 26, 27
Article 4, §33 of the Michigan Constitution of 1963 .................................................................... 27
Article 5, §2 of the Michigan Constitution of 1963 ................................................................ 12, 18
Article 6 of the Michigan Constitution of 1963 …………………………………………………28
Article 6, §1, 4 and 7 of the Michigan Constitution of 1963 .......................................................... 3
Article 6, §5 of the Michigan Constitution of the Michigan Constitution of 1963 …...4,17, 28, 37
Article 6, §4-§5 of the Michigan Constitution of 1963 ................................................................ 19
Article 6, §4-§5 of the Michigan Constitution of 1963 .......................................................... 10, 15
Article 6, §28 of the Michigan Constitution of 1963 ...................................................................... 9
Article 9, §1 of the Michigan Constitution of 1963 ...................................................................... 13

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v
STATEMENT OF JURISDICTION

Appellant brings an appeal of right pursuant to MCR 7.203(A). Appellant is appealing the

Trial Court’s Order granting defendants’ motion for summary disposition entered on November 3,

2017.

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vi
STATEMENT OF QUESTIONS PRESENTED

I. Did the legislature violate Article 3, §2 of the Michigan Constitution of 1963 in the
Michigan Indigent Defense Commission Act, MCL 780.991 et seq, when it delegated
power to the executive branch to take over constitutional functions of the judiciary without
express judicial authorization or constitutional authorization?

Plaintiff-Appellant answers YES


Defendants-Appellees answer NO
Trial Court answered NO

II. Can the Department of Licensing and Regulatory Affairs (LARA) and the Michigan
Indigent Defense Commission (MIDC) legally regulate the minimum education, training,
qualifications and duties of indigent defense counsel without the express authorization of
the judicial branch when the Michigan Supreme Court has the exclusive constitutional
authority under Article 6, §4-§5 of the Michigan Constitution of 1963 to establish
professional standards for attorneys and regulate the conduct and duties of attorneys?

Plaintiff-Appellant answers NO
Defendants-Appellees answer YES
Trial Court answered YES

III. A. Was the MIDC authorized in the Michigan Indigent Defense Commission Act, MCL
780.991 et seq, to mandate that arraignments are a “critical stage” of criminal proceedings
and create the right to counsel at arraignment?

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Plaintiff-Appellant answers NO
Defendants-Appellees answer YES
Trial Court answered YES

B. Does the MIDC interfere with the Michigan Supreme Court’s exclusive constitutional
authority to establish practice and procedure of conducting arraignments under Article VI,
§5 of the Michigan Constitution of 1963 in violation of the separation of powers doctrine
under Article 3, §2 of the Michigan Constitution of 1963?

Plaintiff-Appellant answers YES


Defendants-Appellees answer NO
Trial Court answered NO

IV. Do the MIDC’s established rules and procedures have the force and effect of law when
the MIDC is not compliant with the procedural requirements of the Administrative
Procedures Act (APA), MCL 24.201 et seq?

Plaintiff-Appellant answers NO
Defendant-Appellant answers NO
Trial Court answered NO

vii
INTRODUCTION

The Michigan Indigent Defense Commission Act (MIDC Act) as amended, MCL 780.981

et seq, is a statutory scheme that unconstitutionally enables the Department of Licensing and

Regulatory Affairs (LARA), a department in the state executive branch of government, to

impermissibly regulate and set professional standards for criminal defense attorneys. For three

years, the Michigan Indigent Defense Commission (MIDC) operated within the judicial branch of

government because the judiciary alone has the constitutional responsibility to regulate the legal

profession and set professional standards for attorneys. However, on January 4, 2017 the

legislature stripped the Michigan Supreme Court of its constitutional authority to regulate the

minimum qualifications and professional standards for attorneys who represent indigent criminal

defendants. The legislature established the MIDC within LARA and gave LARA the responsibility

to regulate minimum indigent defense counsel standards. The legislature further required that local

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funding units take over the implementation and enforcement of the MIDC standards. The

legislature does not have the legal authority to delegate constitutional functions of the judiciary to

the executive branch and local funding units. Therefore, the amendments to the MIDC Act are

unconstitutional under the separation of powers doctrine in Article 3, §2 of the Michigan

Constitution of 1963.

With no apparent oversight by LARA, the MIDC repeatedly promulgates compulsory

funding cap rates, allowable and disallowable expenses, and compulsory hiring requirements under

the guise of “guidelines” and “instructions” without complying with the notice and hearing

requirements under the Administrative Procedures Act (APA), MCL 24.201 et seq. While the

approved minimum standards are exempt from the APA, this exemption does not give the MIDC

wholesale authorization to ignore the APA when establishing compulsory rules.

1
STATEMENT OF FACTS

A. History of the Legislation

On October 31, 2011, Governor Rick Snyder signed Executive Order 2011-12 establishing

the Michigan Advisory Commission on Indigent Defense. On June 22, 2012, the Report by the

Michigan Advisory Commission on Indigent Defense was finalized and provided to the Governor

and the Michigan Legislature. The Advisory Commission recommended the creation of a

“permanent commission” to “establish and enforce minimum standards statewide for the delivery

of constitutionally effective assistance of counsel to indigent criminal defendants” and that the

commission be established “within the judicial branch of state government.” 1

On July 1, 2013, the MIDC was created by the MIDC Act, PA 93 of 2013. The MIDC was

established within the judicial branch of government. PA 93 of 2013, MCL 780.985 (1). The MIDC

is comprised of fifteen voting members. MCL 780.987 (1). Only one member of the MIDC is

“selected to represent local funding units.” 2 MCL 780.987 (k).

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On January 4, 2016, the MIDC submitted its initial set of standards to the Michigan

Supreme Court for review. The first set of standards required local funding units and trial courts

to plan, fund, implement, enforce and collect tracking data for the following four areas: 1)

Education and Training of Defense Counsel; 2) Initial Interview; 3) Investigation and Experts; and

4) Counsel at First Appearance and Other Critical Stages. (See Ex. A – Minimum Standards).

1
6/12/12 Report of the Michigan Advisory Commission on Indigent Defense Recommendation 5
http://www.michigan.gov/documents/snyder/Indigent_Defense_Advisory_Comm_Rpt_390212_
7.pdf) (emphasis added).
2
Currently, the only local unit of government representative, Derek King, is a business owner in
Battle Creek and a Calhoun County Commissioner. Calhoun County is approximately 10% of the
population of Oakland County. See MIDC commission member information at
http://michiganidc.gov/michigan-indigent-defense-commission/#toggle-id-15 and Michigan
county census data at https://www.census.gov/prod/cen2010/cph-2-24.pdf.
2
At the time of that submission, the definition of “indigent criminal defense system” was

“the local unit of government that funds a trial court combined with each and every trial court

funded by the local unit of government.” 3 Furthermore, the MIDC was created within the judicial

branch of state government.” 4

On June 1, 2016, the Michigan Supreme Court affirmed its “ongoing authority to establish,

implement, and impose professional standards” and conditionally approved the first set of

standards for indigent defense systems and proposed amendments to the MIDC Act, (Ex. B –

Michigan Supreme Court AO No. 2016-2 p. 1), subject to multiple constitutional issues:

1. MCL 780.985 creates MIDC as an “autonomous entity” and places it with “the
judicial branch.” Employees of the judicial branch are subject to this Court’s
exclusive constitutional authority to exercise general supervisory control. See
Const 1963, art 6 §1, 4 and 7; Judicial Attorneys Ass’n v. Michigan, 459 Mich.
291, 298; 586 N.W. 2d 635 (1998). We are concerned that placing the MIDC
within the judicial branch, while denying the Court the ability to supervise and
direct the commission’s activities and employment, may contravene the
general separation of powers under the Michigan Constitution, Const 1963, art

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3, §2, and impinge upon the specific constitutional function of this Court to
supervise the judicial branch.

2. MCL 780.983 (f) defines “indigent criminal defense system,” an entity


subject to the authority of the MIDC, in a manner that includes trial courts and
combines trial courts with non judicial local governments. In addition, MCL
780.989 (1)(a) allows the MIDC to “develop and oversee the implementation,
enforcement, and modification of minimum standards, rules, and procedures to
ensure that indigent criminal defense services providing effective assistance of
counsel are consistently delivered to all indigent adults in this state”; and MCL
780.989 (1)(b) allows the MIDC “to assure compliance with the commission’s
minimum standards, rules, and procedures.” We are concerned that these
provisions might contain enforcement mechanisms that present an
unconstitutional usurpation of this Court’s authority under Const 1963, art 6, §
4, which provides that the Supreme Court “shall have general superintending
control over all courts.” They also raise general separation of powers concerns
under Const 1963, art 3, §2.

3
House Bill 5842 of 2016 Sec. 3 (G) (1).
4
House Bill 5842 of 2016 Sec. 5 (1) (emphasis added).
3
3. MCL 780.989 (1)(f) and (2) and MCL 780.991 (2) arguably allow the MIDC to
regulate the legal professional. The Constitution exclusively assigns
regulation of the legal professional to the judiciary. See Const 1963, art 6, §5;
Grievance Administrator v Lopatin, 462 Mich 235; 612 NW2d 120 (2000);
Attorney General v Michigan Public Serv Comm, 243 Mich App 487, 517;
625NW2d 16 (2000).

(Ex. B at p. 1-2, emphasis added). The Michigan Supreme Court also required the constitutional

concerns to be addressed by December 31, 2016 by stating the following:

If this Court determines before December 31, 2016, that legislative revisions of the
MIDC Act have sufficiently addressed our concerns, the standards approved
conditionally by this Court today will then take full effect. Otherwise this Court’s
conditional approval of these standards will be automatically withdrawn on
December 31, 2016. The Court will then determine what, if any, further action it
may take to preserve its constitutional authority.

(Ex. B at p. 2, emphasis added).

The legislative revisions required by the Michigan Supreme Court were not enacted by

December 31, 2016, and, as a result, the Michigan Supreme Court’s approval for the MIDC

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minimum standards was withdrawn.

B. Enacted Legislation and LARA Minimum Standards

On January 4, 2017, several substantive amendments to the MIDC Act, MCL 780.981 et

seq, were enacted. First, the MIDC was moved from the judicial branch to the executive branch

within the Department of Licensing and Regulatory Affairs (LARA). MCL 780.983 (b) and MCL

780.985 (1) and (2). Second, the term “indigent criminal defense system” was redefined as “the

local unit of government that funds the trial court,” thus, trial courts were eliminated from any

responsibility or authority under the MIDC Act. MCL 780.983 (g)(i). The MIDC Act also

expressly mandates that the “delivery of indigent criminal defense services shall be independent

4
of the judiciary.” MCL 780.991 (1)(a). 5 Consequently, the amended MIDC Act does not give the

judiciary any ability to enforce the minimum standards and only allows the judiciary to “contribute

information and advice” regarding indigent defense services. MCL 780.989 (1)(a) and MCL

780.991 (1)(a).

The MIDC Act further requires cities, villages, townships and counties that fund trial courts

to create the compliance plans and the cost analyses required to take over and deliver indigent

defense services in compliance with the four approved MIDC standards within 180 days of

approval by LARA. MCL 780.993 (3). The MIDC Act requires all funding units to determine their

“local share,” defined as the funding unit’s average annual expenditures for indigent defense

services for Fiscal Years 2010, 2011, and 2012, “excluding money reimbursed to the system by

individuals determined to be partially indigent.” MCL 780.983 (h). Local funding units must

estimate the cost of developing the compliance plans and create a cost analyses for implementing

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the plan. MCL 780.993 (2). “The cost analysis shall include a statement of the funds in excess of

the local share, if any, necessary to allow its system to comply with the MIDC’s minimum

standards.” MCL 780.993 (3).

On January 20, 2017, Michigan Supreme Court State Court Administrator Milton Mack,

Jr., sent a memo to all chief judges of the state which stated in part that while the “amendments to

the Act appear to address issues of uncertain constitutionality that were raised by the Court,” the

MIDC Act amendments and the minimum standards do not have the approval of the Michigan

Supreme Court:

5
On April 18, 2017, the MIDC approved and published “Standard 5 – Independence of the
Judiciary” to enforce this statutory standard. Public Comment on Standard 5 ended on October 6,
2017. Then the MIDC reopened Public Comments through February 1, 2018.

5
Finally, please note that Administrative Order 2016-2 conditionally approved four
minimum standards only on the condition that legislative amendments were in place
on or before December 31, 2016. That did not occur and, as a result, the conditional
approval of the standards expired without taking full effect.

(Exhibit C – 01/20/17 SCAO Memo, emphasis added).

On May 22, 2017, LARA approved the MIDC’s first four minimum standards. Local

funding units were required to have their compliance plans and cost projections for developing

and implementing the plans submitted by November 20, 2017.

On June 20, 2017, the MIDC approved its “Guide for Submission of Compliance Plans,

Cost Analyses, and Local Share Calculations” which contains multiple compulsory provisions.

(Exhibit D). MIDC established funding caps to local funding units for continuing legal education

at a “rate of no more than $25 per credit hour.” (Id.) MIDC limits funding to local units for

webinars at an “annual rate of $20/per criminal defense attorney.” (Ex. D p.10). Finally, local

funding units are prohibited from hiring a non-lawyer for the administration of the indigent defense

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system. (“A funding unit must use a licensed attorney in good standing… for all duties involving

management or oversight of attorneys or cases within the system.” Ex. D p. 8).

On July 18, 2017, Appellant Oakland County filed a complaint against the State of

Michigan, LARA and the MIDC challenging the constitutionality of both the 2017 amendments

to the MIDC Act and the MIDC’s four minimum approved standards pursuant to MCL 780.985

(5). On July 31, 2017, the MIDC held a special commission meeting and approved more

multiple compulsory rules in its “Compliance Plan Application Instructions” document. This

document contained capped funding rates and allowable/disallowable expenditure rules. Prior to

that commission meeting, on July 26, 2017, Oakland County requested that the MIDC provide the

“Compliance Plan Application Instructions” document in advance of the MIDC meeting, but the

MIDC denied the request for that document and informed Oakland County it would not be allowed

6
to address the MIDC on any “individual agenda items” including the “Compliance Plan

Application Instructions.” (Ex. F – 7/26/17 Email from MIDC Exec. Dir Jonathon Sacks).

On August 16, 2017, the MIDC published its Compliance Plan Application for Indigent

Defense Standards 1 – 4 Instructions on its website. 6 First, the MIDC capped hourly rates for

investigators at a not to exceed amount of $75/hour. (Ex. E p. 2). The MIDC also capped funding

for experts. The MIDC set maximum levels of hourly rate not to exceed compensation from

$30/hour to $200/hour for various categories of experts based on their education levels. Id. The

MIDC further capped the total amount of funding for investigators and experts based on a per case

tiered classification formula. (Ex. E p. 2-3). The MIDC also approved limiting capital renovation

project reimbursements to $25,000. Any requests exceeding $25,000 to create confidential space

will be subjected to heightened funding scrutiny and no rationale was provided by the MIDC for

limiting renovation costs to $25,000. (See Ex. E p. 9 –10).

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On August 23, 2017, Appellees State of Michigan, LARA, and the MIDC filed a Motion

for Summary Disposition in lieu of an answer to the Complaint. On August 31, 2017, Appellant

Oakland County filed both a response to Respondents’ Motion for Summary Disposition and its

own Motion for Summary Disposition. All parties requested oral argument.

On November 3, 2017, without oral argument, the Trial Court issued an Opinion and Order

granting the Appellees’ Motion for Summary Disposition.

On November 17, 2017, as required by MCL 780.993 (3) , Oakland County submitted its

one hundred fifty-page compliance plan and cost analysis application to the MIDC. Oakland

6
See August 16, 2017 announcement at http://michiganidc.gov/midc-publishes-compliance-plan-
application-instructions-submission-sample-plans/ and the link to the document can be found at
http://michiganidc.gov/wp-content/uploads/2017/08/Compliance-Plan-Application-and-
Instructions-and-portal-screenshots.pdf.
7
County submitted the compliance plan without waiving any of the issues raised in this claim of

appeal and preserving its statutory and constitutional right to challenge the MIDC Act and the

approved minimum standards:

Oakland County is filing this Compliance Plan with the Michigan Indigent Defense
Commission (“MIDC”) without waiving the constitutional and statutory issues
raised in the lawsuit Oakland County filed in the Court of Claims against the State
of Michigan (“State”), the Department of Licensing and Regulatory Affairs
(“LARA”) and the Michigan Indigent Defense Commission (“MIDC”). Oakland
County hereby continues and preserves those constitutional and statutory issues.
Furthermore, Oakland County does not waive and preserves any issues regarding
violation of the Headlee Amendment, which arise from, inter alia, the State’s
obligation to fund this Compliance Plan and all of the costs set forth herein under
the MIDC Act (MCL 780.981 et seq and more specifically MCL 780.997 (2)) and
the Headlee Amendment. The County’s Compliance Plan assumes full funding by
the State. 7
The MIDC has 60 days from the date of Oakland County’s submission to approve or disapprove

the compliance plan and cost analysis. MCL 780.993 (4).

On November 21, 2017, Appellant Oakland County filed a Claim of Appeal of the

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November 3, 2017 Order by the Trial Court.

7
11/17/17 Oakland County Compliance Plan – Applicant Information p.1.
8
STANDARD FOR REVIEW

This action arises out of Oakland County’s statutory right to challenge the constitutionality

of the MIDC Act as amended, MCL 780.981et seq, and the statutorily authorized minimum

standards approved by LARA. MCL 780.985 (5) and Article 6, §28 of the Michigan Constitution.

The Court reviews the constitutionality of statutes de novo. McDougall v. Schanz, 461 Mich. 15;

597 N.W.2d 148 (1999). The constitutionality of the MIDC Act and the LARA approved standards

presents a question of law. Cardinal Mooney High School v. High School Athletic Assoc., 437

Mich. 75, 80; 457 N.W.2d 21 (1991). Finally, whether the MIDC’s rules are invalid because they

were not promulgated pursuant to the procedures of APA is a question of law. Faircloth v. Family

Independence Agency, 232 Mich. App. 391, 401; 591 N.W. 2d 314 (1998).

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9
ARGUMENT

I. THE MIDC ACT, MCL 780.991 et seq, IS AN UNCONSTITUIONAL ENABLING


ACT THAT VIOLATES THE SEPARATION OF POWERS DOCTRINE UNDER
ARTICLE 3, §2 OF THE MICHIGAN CONSTITUTION OF 1963.

The MIDC Act, MCL 780.991 et seq, calls for the sweeping regulation of every attorney

who represents indigent criminal defendants in this state in violation of the separation of powers

doctrine under Article 3, §2 which provides:

The powers of government are divided into three branches: legislative, executive
and judicial. No person exercising powers of one branch shall exercise powers
properly belonging to another branch except as expressly provided in this
constitution.

The MIDC Act gives an executive branch agency and commission, LARA and the MIDC, the

broad authority to take over the regulation of the minimum qualifications, professional standards

and duties of attorneys who represent indigent criminal defendants. See MCL 780.985 (1), (3) and

(6), MCL 780.989 (1)(a) and MCL 780.991 (1) – (2). The legislature also expressly mandates that

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the “delivery of indigent criminal defense services shall be independent of judiciary.” MCL

780.991 (1)(a).

A. Controlling Legal Authority

To make a successful facial challenge to the constitutionality of the statute under the

separation of powers doctrine, the challenger “must establish that no set of circumstances exists

under which the act would be valid.” Judicial Attorneys Ass’n v. Michigan, 459 Mich. 291, 302;

586 N.W. 2d 894 (1998), citing United States v. Salerno, 481 U.S. 739, 745; 107 S. Ct. 2095

(1987). It is well settled law, and acknowledged by the Trial Court, that the judiciary has the

explicit constitutional authority under Article 6, §4-§5 of the Michigan Constitution of 1963 to

establish professional standards for attorneys and regulate the conduct and duties of attorneys. See

11/03/17 Order p. 6; Ex. B – MSC AO No. 2016-2, p. 1 – 2; Schlossberg v. State Bar Grievance

10
Board, 388 Mich. 389, 395; 200 N. W. 2d 219 (1972); Grievance Administrator v. Lopatin, 462

Mich. 235, 242; 612 N.W.2d 120 (2000). The Michigan Supreme Court has held:

The judiciary is an independent department of the State, deriving none of its judicial
powers from either of the other 2 departments. This is true although the legislature
may create courts under the provisions of the Constitution. The judicial powers are
conferred by the Constitution and not by the act creating the court. The rule is well-
settled that under our form of government the Constitution confers on the judicial
department all the authority necessary to exercise its powers as a coordinate branch
of the government. It is only in such a manner that the independence of the judiciary
can be preserved.

Judicial Attorneys, supra at 300. Accordingly, the judiciary cannot be hampered or limited in the

discharge of its constitutional functions by either the legislative or executive branches of

government. Id. at 300.

The legislature can only take over these constitutional functions of the judiciary in very

limited circumstances. First, the legislature and executive branch may take over constitutional

functions of the judiciary if expressly authorized in the Michigan Constitution of 1963. See In Re

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Southard, 298 Mich. 75, 77; 298 N.W. 457 (1941). “Where the constitution explicitly grants

powers of one branch to another, there can be no separation of powers problem.” Soap &

Detergent Ass’n v. Natural Resources Commission, 415 Mich. 728, 752; 330 N.W.2d 346 (1982).

Second, the judicial branch may determine “on its own authority” to allow some “limited”

sharing of a constitutional function with the legislative branch if “such sharing is in the best

interests of the judicial branch and the public as a whole.” Judicial Attorneys, supra at 303.

However, the legislature cannot overcome a facial challenge under the separation of powers

doctrine if no express authority by the judiciary exists. The mere “possibility” that a court may

choose to share its constitutional responsibilities “does not qualify as a set of circumstances that

overcomes the facial challenge.” Id., supra at 303 (emphasis added). The assumption by the

legislative branch of constitutional functions of the judicial branch without express authorization

11
by the judiciary substantiates a finding that there is no set of circumstances under which a statute

would be constitutionally valid. Id., at 303. In sum, when the legislature or executive branch take

over constitutional functions of the judiciary without express judicial authorization or

constitutional authorization, the statute is facially unconstitutional under Article 3, §2 of the

Michigan Constitution of 1963.

The Trial Court erred in its ruling the MIDC Act only “narrowly” overlaps with the

judiciary’s constitutional duties and in its analysis that the legislature had the legal authority to

take over “limited” functions of the judiciary. (12/3/17 Opinion p. 8 – 10). First, the wholesale

takeover of the regulation of the minimum qualifications, professional standards and duties of

attorneys who represent indigent criminal defendants, which the MIDC Act enables the MIDC to

do, cannot reasonably be considered “limited” or “narrow.” (12/3/17 Opinion p. 8 - 10). Second,

each case cited by the Trial Court involved the existence of either a constitutional provision

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authorizing the limited overlapping function between branches or the express delegation by one

branch to another of its’ own constitutional powers. For example, in Soap & Detergent Ass’n v.

Natural Resources Commission, Article 5, §2 of the Michigan Constitution of 1963 granted the

Governor the legislative authority to reorganize executive department functions, a legislative

function. Soap & Detergent Ass’n, supra at 752. The Michigan Supreme Court found that it was

not unconstitutional for the Governor to exercise the legislative power to transfer functions

between executive branch agencies, given Article 5, §2 granted the Governor “a very limited and

specific legislative power.” Consequently, the Governor’s actions did not violate the separation of

powers doctrine. Id.

In People v. Cameron, the legislature delegating its own constitutional power to tax to the

judiciary. The court analyzed the constitutionality of MCL 769.1k, which expressly allows a trial

12
court to impose costs on convicted defendants for “the actual costs incurred by the trial court,”

including the compensation of court personnel and the recovery of necessary operational expenses.

The court determined that MCL 769.1k was a revenue generating statute. People v. Cameron, 319

Mich. App. 215, 224; 900 N.W.2d 658 (2017). The court acknowledged that the power to raise

revenue “rests exclusively with the Legislature” under Article 9, §1 of the Michigan Constitution

of 1963. Id. at p. 233, citing UAW v. Green, 498 Mich. 282, 290; 870 N.W.2d 867 (2015). The

court ruled, however, that the legislature may delegate its own powers to the judiciary. Id. at p.

233, citing Hoffman v. Otto, 277 Mich. 437, 440/269 N.W. 225 (1936). The court held that the

statute did not violate separation of powers provision of Article 3, §2 of the Michigan Constitution

of 1963:

… the legislative delegation to the trial court to impose and collect the tax contains
sufficient guidance and parameters so that it does not run afoul of the separation-
of-powers provision of Const 1963, art 3 §2.

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Id. at 236. Contrary to findings of the trial court, the court in People v. Cameron does not allow
the legislature even the limited takeover of constitutional judicial functions without express
authorization of the judiciary. Stated another way, the legislature only has the authority to delegate
its own powers, not those of another branch of government.

B. Provisions of the MIDC Act where the legislature delegates judicial powers to the
executive branch without express authorization allowing it to do so are facially
unconstitutional under Article 3, §2 of the Michigan Constitution of 1963.

This Court has the authority to strike specific provisions and sever them from the MIDC

Act if it determines that those provisions are unconstitutional and need to be stricken. Judicial

Attorneys, supra at 304. The unquestionable purpose of the MIDC Act is to establish and enforce

minimum standards statewide for the delivery of constitutionally effective assistance of counsel to

indigent criminal defendants. The legislature established the MIDC within LARA, an executive

branch agency. MCL 780.983 (b) and MCL 780.985 (1). The MIDC Act also mandates that the

13
cities, villages, townships and counties that fund the trial courts (local executive branch entities)

take over the local delivery of indigent defense services and implement and enforce the MIDC’s

minimum standards. MCL 780.983 (g)(i), MCL 780.993 (3) and (10).

In the MIDC Act, the legislature gives the MIDC the broad authority to regulate the

minimum qualifications, professional standards and duties of attorneys who represent indigent

criminal defendants. See MCL 780.985 (1), (3) and (6), MCL 780.989 (1)(a) and MCL 780.991

(1) – (2). In addition to the delegation of that broad authority, the statute also codifies specific

standards for the MIDC to develop and implement:

The MIDC shall implement minimum standards, rules, and procedures to guarantee
the right of indigent defendants to the assistance of counsel as provided under
Constitution and section 20 of article I of the state constitution of 1963. In
establishing minimum standards, rules, and procedures, the MIDC shall adhere to
the following principles:
(a) Defense counsel is provided sufficient time and a space where attorney-client
confidentiality is safeguarded for meetings with defense counsel’s client.

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(b) Defense counsel’s workload is controlled to permit effective representation.
Economic disincentives or incentives that impair defense counsel’s ability to
provide effective representation shall be avoided. The MIDC may develop
workload controls to enhance defense counsel’s ability to provide effective
representation.
(c) Defense counsel’s ability, training, and experience match the nature and
complexity of the case to which he or she is appointed.
(d) The same defense counsel continuously represents and personally appears at
every court appearance throughout the pendency of the case. However, indigent
criminal defense systems may exempt ministerial, non-substantive tasks, and
hearings from this prescription.
(e) Indigent criminal defense systems employ only defense counsel who have
attended continuing legal education relevant to counsels’ indigent defense clients.
(f) Indigent criminal defense systems systematically review defense counsel at the
local level for efficiency and for effective representation according to MIDC
standards.

14
MCL 780.991 (2)(a) – (f). These specific statutory standard guidelines clearly regulate the

qualifications, experience, continuing legal education, and duties of defense counsel who represent

indigent criminal defendants.

The Michigan Supreme Court has the exclusive constitutional authority under Article 6,

§4-§5 of the Michigan Constitution of 1963 to establish professional standards for attorneys and

regulate the conduct and duties of attorneys. (See above “Controlling Authority”). The Michigan

Supreme Court speaks through its orders. People v. Kennedy, 384 Mich. 339, 343; 183 N.W.2d

297 (1971). The Michigan Supreme Court did not delegate any of its authority to the legislature to

regulate the minimum qualifications and professional standards for attorneys who represent

indigent criminal defendants. (See Ex. B and Ex. C) Therefore, the legislature cannot delegate

these exclusive powers of the judicial branch to the executive branch (LARA and the MIDC).

Furthermore, the legislature has no authority to delegate the powers of the judicial branch to every

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city, village, township and county in the state that fund the trial courts. For these reasons, the

provisions of the MIDC Act, MCL 780.983 (b), MCL 780.983 (g)(i), MCL 780.985 (1) and MCL

780.993 (3) and (10), are unconstitutional on their face and violate the separation of powers

doctrine under Article 3, §2 of the Michigan Constitution of 1963.

C. Requiring indigent criminal defense services to be independent of the judiciary is


unconstitutional under Article 3, §2 of the Michigan Constitution of 1963.

The MIDC Act expressly requires that the “delivery of indigent criminal defense services

shall be independent of judiciary.” MCL 780.991 (1)(a). This statutory section gave LARA and

the MIDC the clear direction that they must create and enforce this standard, divesting the judiciary

of its constitutional responsibility to establish and enforce minimum standards statewide for the

delivery of constitutionally effective assistance of counsel to indigent criminal defendants.

Pursuant to the authority cited above, the judiciary alone has the constitutional authority to
15
establish professional standards and regulate the conduct and duties of attorneys, which is the very

purpose of the MIDC Act. Because the judiciary has not expressly divested itself of these

constitutional authorities, the legislature has no authority to mandate that the activities under the

MIDC Act “shall be independent of the judiciary.” Accordingly, MCL 780.991 (1)(a) is

unconstitutional pursuant to the separation of powers doctrine contained in Article 3, §2 of the

Michigan Constitution of 1963.

As a result of the unconstitutionality of MCL 780.991 (1)(a), the MIDC has no valid legal

authority to plan for, establish or publish any standard that addresses the “independence of the

judiciary.” 8 It is certainly true that the MIDC does not allow a judicial review of standards before

8
Shortly after the passage of the amendments to the MIDC Act on January 4, 2017, the MIDC
began to work on establishing an enforcement standard to make the management and delivery of
indigent criminal defense services independent of the judiciary. In March of 2017, the MIDC
promulgated “White Papers To Accompany Standards 1, 2, 3 and 4” where they warned courts
and local funding units to prepare to take over an essential functions of the court:

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The court approval process presents several potential problems… Counties should
strongly consider a process for approval of experts and investigators independent
of the trial court judge… An independent process here is not yet required – the
MIDC will pursue independence from the judiciary in a future standard…

(See MIDC White Papers, Standard 3 “System Should Consider the Creation of an Independent
Review Process for the Request,” p. 5, March 2017 (emphasis added) available at
http://michiganidc.gov/wp-content/uploads/2017/03/White-Papers_Complete-Set-with-
Standards.pdf. ). Then on April 18, 2017, the MIDC approved a minimum standard to enforce this
statutory provision (Standard 5 – Independence of the Judiciary). The MIDC mandated that the
selection and approval of lawyers who will be representing indigent defendants in court shall be
made by the local funding unit. (Standard 5(A), Ex. A p. 7). The MIDC also dictates the limited
role that the courts will be allowed to take:

The court’s role shall be limited to: informing defendants of right to counsel;
making a determination of indigency and entitlement to appointment; if deemed
eligible for counsel, referring the defendant to the appropriate agency (absent a
valid waiver); and contributing information and advice concerning the system.

(Standard 5(B), Ex. A p. 7). This standard is awaiting approval from LARA.

16
LARA approval under MCL 780.985 (5). However, the very statutory authority under which the

MIDC is actively establishing and attempting to enforce the “independence of the judiciary” policy

is unconstitutional.

The Trial Court erred in two significant ways in reaching its decision that the MIDC Act

does not violate the separation of powers contained in Article 3, §2. First, as previously noted, the

Trial Court erred in finding that the MIDC Act involves only a “narrow overlap” of the judiciary’s

constitutional duties. (12/3/17 Opinion p. 10). However, the delivery of indigent criminal defense

counsel for every misdemeanor and felony defendant in the State of Michigan cannot be reasonably

considered “narrow” when it significantly affects the operation of every trial court and the

representation of a significant portion of criminal defendants in this state. The plain language of

the MIDC Act and the minimum standards heavily regulate the activities of indigent defense

counsel from the start of the case through sentencing, both in and out of court. Notably, the

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Michigan Supreme Court recognized the same:

MCL 780.989 (1)(f) and (2) and MCL 780.991 (2) arguably allow the MIDC to
regulate the legal profession. The Constitution exclusively assigns regulation of the
legal profession to the judiciary.

(Ex. B p. 2).

Second, the Trial Court found that the MIDC Act has constitutional fail-safe provisions in

MCL 780.985 (3) (the MIDC “shall not infringe on the supreme court’s authority over practice

and procedure in the courts of this state as set forth in section 5 of article VI of the state

constitution”) and MCL 780.991 (3)(a) (“Nothing in this act shall prevent a court from making a

determination of indigency for any purpose consistent with article VI of the state constitution of

1963.”) (12/3/17 Opinion p. 9). The Trial Court relied on Strauss v. Governor, 459 Mich. 526; 592

17
N.W.2d 53 (1999). But again, that case involved express constitutional authority of the Governor's

power under Article 5, §2 of the Michigan Constitution of 1963. Unlike the Governor, the

legislature has no express constitutional authority to make indigent criminal defense services

“independent of the judiciary” and divest the judiciary of its constitutional authority to establish

and enforce minimum standards regarding assistance of counsel to indigent criminal defendants.

The legislature’s lip-service recognitions of the authority of the judicial branch, while

directly empowering the MIDC to divest the judiciary of its constitutional authority, does not

render the “independence of the judiciary” statutory provision constitutional. In other words,

merely stating in the MIDC Act that the MIDC shall not infringe on the judicial branch’s power

and authority does not save any of the provisions of the MIDC Act that do infringe on the judicial

branch’s constitutional power and authority. As explained in the previous section, the MIDC Act

divests the judiciary of their constitutional authority by compelling local funding units to take over

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the responsibility of implementing and enforcing the minimum standards in clear violation of the

Michigan Constitution. This is clear from the plain reading of the MIDC Act and by the expressed

intent of the MIDC. 9 For these reasons, the provision of the MIDC Act, MCL 780.991 (1)(a), is

unconstitutional on its face and violates the separation of powers doctrine under Article 3, §2 of

the Michigan Constitution of 1963.

II. THE MIDC MINIMUM STANDARDS 1 – 4 ARE NOT AUTHORIZED BY LAW


AND ARE UNCONSTITUTIONAL UNDER THE SEPARATION OF POWERS
DOCTRINE IN ARTICLE 3, §2 OF THE MICHIGAN CONSTITUTION OF 1963.

LARA and the MIDC should not be permitted to regulate the minimum education, training,

qualifications and duties of indigent defense counsel without the express authorization of the

9
See footnote 7.
18
judicial branch. The Michigan Supreme Court has the exclusive constitutional authority under

Article 6, §4-§5 of the Michigan Constitution of 1963 to establish professional standards for

attorneys and regulate the conduct and duties of attorneys. The Michigan Supreme Court

determined that the MIDC minimum standards both directly regulate attorneys and directly

regulate the judicial function and practice of appointing counsel:

…[the proposed standards] would regulate the manner in which counsel would be
appointed to represent indigent defendants in criminal cases, and would further
impose specific training, experience and continuing legal education requirements
on attorneys who seek appointment as counsel in these types of cases.

(Ex. B – MSC AO No. 2016-2 p. 1). Since the MIDC minimum standards regulate professional

standards for attorneys, the Michigan Supreme Court ruled it has the ongoing constitutional

authority to review and approve the minimum standards established by the MIDC under the MIDC

Act. Id, footnote 1. Furthermore, the Michigan Supreme Court’s conditional approval of all four

proposed standards was automatically withdrawn on December 31, 2016 and the authorization of

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the four MIDC minimum standards did not take effect. (Ex B p. 2, and Ex. C – Memo from SCAO).

Therefore, the MIDC has no judicial authorization to establish, implement or enforce the four

LARA approved minimum standards.

A review of each individual standard confirms that the MIDC regulations micromanage

attorneys who represent indigent defendants, from their education and training to their duties

throughout the entire pendency of a case. MIDC Standard 1 clearly establishes minimum education

and training as well as continuing legal education requirements for indigent defense attorneys:

A. “Counsel shall have reasonable knowledge of substantive Michigan and federal


law, constitutional law, criminal law, criminal procedure, rules of evidence,
ethical rules and local practices. Counsel has a continuing obligation to have
reasonable knowledge of the changes and developments in the law.”
B. “Counsel shall have reasonable knowledge of the forensic and scientific issues
that can arise in a criminal case, legal issues concerning defenses to a crime,
and be reasonably able to effectively litigate those issues.”

19
C. “Counsel shall be reasonably able to use office technology commonly used in
the legal community, and technology used within the applicable court system.
Counsel shall be reasonably able to thoroughly review materials that are
provided in an electronic format.”
D. “Counsel shall annually complete continuing legal education courses relevant
to the representation of the criminally accused. Counsel shall participation in
skills training and educational programs in order to maintain and enhance
overall preparation, oral and written advocacy, and litigation and negotiation
skills. Attorneys with few than two years of experience practicing criminal
defense in Michigan shall participate in one basic skills acquisition class. All
attorneys shall annually complete at least twelve hours of continuing legal
education…”

(Ex. A Standard 1(A) – (D), p. 2, emphasis added). MIDC Standard 1 is unconstitutional under

the separation of powers doctrine, Article 3, §2, because it usurps the Michigan Supreme Court’s

exclusive constitutional authority to regulate the minimum qualifications and professional

standards for attorneys who represent indigent criminal defendants.

MIDC Standard 2 requires indigent defense attorneys to perform multiple duties at the

initial interview with a client:

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• “Counsel shall conduct a client interview as soon as practicable after
appointment to represent the defendant in order to obtain information necessary
to provide quality representation at the early stages of the case and to provide
the client with information concerning counsel’s representation and the case
proceedings.”

• “The purpose of the interview is to”:

 Establish a relationship with the defendant;


 Review charges with the defendant;
 Determine the need for a motion for pretrial release;
 Determine the need for independent investigations;
 Determine the immediate mental or physical health needs of the
defendant;
 Determine if a defendant needs the assistance of an interpreter;
 Advise the defendant to refrain from discussing the case with
anyone, including family, without counsel present.

• “Counsel shall conduct the initial interview with the client sufficiently before
any subsequent court proceeding so as to be prepared for that proceeding. When

20
a client is in local custody, counsel shall conduct an initial client intake
interview within three business days after appointment.”
• “Counsel shall conduct subsequent client interviews as needed.”
• “Counsel shall obtain copies of any relevant documents which are available,
including copies of any charging documents, recommendations and reports
concerning pretrial release, and discoverable material.”
• “Counsel shall evaluate whether the client is capable of participation in his/her
representation, understands the charges, and has some basic comprehension of
criminal procedure.”
• “Counsel has the continuing responsibility to evaluate, and, where
appropriate, raise as an issue for the court the client’s capacity to stand trial or
to enter a plea pursuant to MCR 6.124 and MCL 330.2020. Counsel shall take
appropriate action where there are any questions about a client’s competency.”
• “Where counsel is unable to communicate with the client because of language
or communication differences, counsel shall take whatever steps are necessary
to fully explain the proceedings in a language or form of communication the
client can understand. Steps include seeking the appointment of an interpreter
to assist with pretrial preparation, interviews, investigation, and in-court
proceedings, or other accommodations pursuant to MCR 1.111.”

(Ex. A Standard 2(A) – (D), p. 3 – 4). MIDC Standard 2 is also unconstitutional under the

separation of powers doctrine, Article 3, §2, because it usurps the Michigan Supreme Court’s

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exclusive constitutional authority to regulate the minimum duties of attorneys who represent

indigent criminal defendants.

MIDC Standard 3 also regulates the minimum duties of attorneys who represent indigent

criminal defendants. MIDC Standard 3 requires indigent defense attorneys to conduct

investigations and seek expert assistance when necessary:

A. “Counsel shall conduct an independent investigation of the charges and offense


as promptly as practicable.”
B. “When appropriate, counsel shall request funds to retain an investigator to
assist with the client’s defense.”
C. “Counsel shall request the assistance of experts where it is reasonably
necessary to prepare the defense and rebut the prosecution’s case.”
D. “Counsel has a continuing duty to evaluate a case for appropriate defense
investigations or expert assistance. Decisions to limit investigation must take
into consideration the client’s wishes and the client’s version of the facts.”

21
(Ex. A. p.5). The MIDC also requires defense counsel to keep their clients informed “on the

progress of investigations pertaining to their case.” (Ex. A. p. 5). Pursuant to the previous authority

cited, Standard 3 – Investigations and Experts is unconstitutional pursuant to the separation of

powers doctrine under Article 3, §2 of the Michigan Constitution of 1963.

Similarly, MIDC Standard 4 similarly regulates the duties of defense counsel during

arraignments. Standard 4 requires counsel to meet with the defendant prior to the arraignment to

gather information to make an informed bond argument during the arraignment. MIDC Standard

4(A). (Ex. A at p. 6). The MIDC requires arraignment attorneys to perform the following duties

during pre-arraignment interviews with defendants: 1) explain the criminal justice process; 2)

advise the defendant on what topics will be discussed with the judge; 3) discuss the potential for

release on bond; and 4) discuss potential for plea negotiations. MIDC Standard 4 Comment 3 (Ex.

A at p. 6). The MIDC requires that arraignment attorneys need to “familiarize himself or herself

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with the allegations underlying the complaint…and gather information relevant to pretrial release

including ties to the community, support within the community, work and education history,

physical and mental health and prior criminal history.” 10 Finally, the Standard 4 states that

“counsel at arraignment shall be prepared to make a de novo argument regarding an appropriate

bond…” (Ex. A at p. 6). Pursuant to the authority cited above, Standard 4 – Counsel at First

Appearance is unconstitutional pursuant to the separation of powers doctrine under Article 3, §2

of the Michigan Constitution of 1963.

10
MIDC White Papers-Standard 4 “Counsel at First Appearance and Other Critical States” p. 7 at
http://michiganidc.gov/wp-content/uploads/2017/03/White-Papers_Complete-Set-with-Standards.pdf

22
In sum, the Michigan Supreme Court ruled that the MIDC was regulating attorneys which

is the constitutional responsibility of the judiciary. (Ex. B – MSC AO No. 2016-2). A simple

reading of the standards shows that the MIDC is regulating attorneys, regardless of their statutory

scheme to require local funding units to act as its proxy. The Michigan Supreme Court withdrew

its conditional approval of the minimum standards on December 31, 2016. Therefore, LARA and

MIDC are violating the separation of powers under Article 3, §2 of the Michigan Constitution of

1963.

The Michigan Supreme Court’s “conditional approval” in its Administrative Order 2016-

2 does not give LARA or the MIDC the authority to regulate the minimum education, training,

qualifications and duties of defense counsel. As stated previously, the Michigan Supreme Court

speaks through its orders. Kennedy supra at 343. The Michigan Supreme Court automatically

withdrew its authorization of the four minimum standards on December 31, 2016 pursuant to its

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Administrator Order 2016-2. Moreover, the legislature’s subsequent amendments to the MIDC

Act did not address the constitutional problems raised by the Michigan Supreme Court, and

actually exacerbated the problem by transferring the MIDC to the executive branch of government.

Therefore, the Michigan Supreme Court did not delegate its authority to regulate professional

standards and duties of indigent defense counsel to the legislature or the executive branch.

LARA and the MIDC claim that they do not “directly regulate” attorneys or the courts, and

that the obligation to do so has been foisted onto the local funding units. However, this Court

cannot ignore the fact that the local funding units, who are being statutorily forced to act as proxies

for the MIDC, also have no constitutional authority to regulate the conduct of attorneys or to

engage in the implementation and enforcement of the minimum standards. Judicial Attorneys,

supra at p. 303.

23
III. THE MICHIGAN INDIGENT DEFENSE COMMISSION HAS NO LEGAL
AUTHORITY TO CREATE A NEW CONSTITUTIONAL RIGHT TO COUNSEL
AT ARRAIGNMENT.

The MIDC and LARA created a new constitutional right to counsel at arraignment in

Standard 4 – Counsel at First Appearance and Other Critical Stages. The MIDC proclaims that an

indigent defendant has the “right to counsel at every court appearance.” (Ex. A at p. 5). The MIDC

further stated:

The indigency determination shall be made and counsel appointed to provide


assistance to the defendant as soon as the defendant’s liberty is subject to restriction
by a magistrate or judge. Representation includes but is not limited to the
arraignment on the complaint and warrant.

MIDC Standard 4(A) (Ex. A at p. 5) (emphasis added). The MIDC developed this “minimum”

standard because it erroneously maintains that the federal and state constitutions have declared

that arraignments are a “critical stage” and as such, defendants have the right to counsel at

arraignment. Under this erroneous assumption, the MIDC believes it is authorized by statute to

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follow and implement federal and state constitutional law. 11 But, as the Trial Court correctly noted,

indigent defendants do not have a federal or state constitutional right to counsel at arraignment.

12/3/17 Order p. 13. Federal and state precedents have determined that arraignments are not a

“critical stage” of proceedings requiring the right to counsel. See 11/2/17 Order p. 13; Rothgery

v. Gillespie County, 554 U.S. 191, 212-213; 128 S. Ct. 2578, 2592, (2008); People v. Killibrew,

16 Mich. App. 624, 627; 168 N.W.2d 423 (1969); People v. Horton, 98 Mich. App. 62, 72; 296

11
See MIDC Standard 4 Comment 1 (“The proposed standard addresses an indigent defendant’s
right to counsel at every court appearance”); and MIDC White Papers-Standard 4 “Counsel at
First Appearance and Other Critical States” p. 2 (“The United States Supreme Court has repeatedly
recognized that the right to counsel is implicated at a criminal defendant’s first in appearance in
court”) available at
http://michiganidc.gov/wp-content/uploads/2017/03/White-Paper-4-Counsel-at-first-appearance-
and-other-critical-stages.pdf.

24
N.W.2d 184 (1980); and People v. Green, 260 Mich. App. 392, 399-400; 677 N.W.2d 363 (2004).

The MIDC, in promulgating Standard 4, has essentially overruled long-standing judicial

precedents regarding the substantive constitutional rights of indigent defendants. In doing so, the

MIDC has yet again usurped the power of the judicial branch to interpret constitutional law.

The separation of powers doctrine under Article 3, §2 of the Michigan Constitution of 1963

precludes the Michigan legislature from delegating its constitutional power to make law to the

executive branch of LARA and the MIDC. Osius v. St. Clair Shores, 344 Mich 693, 697; 75 N.W.

2d 25 (1956); People v. O’Neal, 122 Mich.App. 370, 373; 333 N.W. 2d 56 (1983). Without the

clear legislation action creating such a right, the Michigan legislature cannot delegate the creation

of a substantive legal right to LARA and the MIDC. In addition, LARA and the MIDC cannot

assume the authority to create a substantive legal right.

The Michigan Supreme Court has adopted a federal test to determine what types of agency

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regulations are fundamentally legislative action and unconstitutional under the separation of

powers doctrine. Blank v. Department of Corrections, 461 Mich. 103, 113 – 114; 611 N.W.2d 530

(2000). This federal test consists of several criteria. First, the regulation must have “the purpose

and effect of altering … legal rights, duties and relation of persons.” Id. at 113 – 114, citing INS

v. Chadha, 462 U.S. 919; 103 S. Ct. 2764 (1983). Second, the regulation supplants legislative

action. Id. at p. 114. Finally, the regulation involves “determinations of policy.” Id. When an

administrative agency or the legislature engages in legislative action, “it must do so by enacting

legislation.” Id. When an administrative agency acts in an “inherently legislative matter” without

legislation and without adhering to enactment and presentment requirements of Article 4, §26 of

the Michigan Constitution of 1963 (approval by the Governor), the agency violates Michigan’s

separation of powers clause.” Id. at p. 120.

25
A. The MIDC Act does not grant LARA and the MIDC the authorization to create a
new constitutional right to counsel at arraignment.

This new constitutional right to counsel at arraignment was not expressly created by the

Michigan legislature in the MIDC Act or presented to the Governor pursuant to the enactment and

presentment requirements of Article 4, §26 of the Michigan Constitution of 1963. In reading the

MIDC Act as a whole, the Michigan legislature did not clearly and unambiguously create a new

constitutional right to counsel at arraignment. The legislature cannot delegate the policy decision

to create a constitutional right to counsel at arraignment without adhering to constitutional due

process requirements. Substantive due process requires that statutory standards to be utilized by

administrative agencies be “as reasonably precise as the subject matter requires or permits.” Krohn

v. Board of Medicine, 98 Mich. App. 129, 133; 296 N.W.2d 57 (1980). See also DNR v. Seaman,

396 Mich. 299, 308-309; 240 N.W.2d 206 (1976); Adkins v. Michigan Dept. of Civil Service

Commission, 140 Mich. App. 202, 213; 362 N.W.2d 919 (1985). “The preciseness of the standard

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will vary with the complexity and/or the degree to which the subject regulated will require

constantly changing regulation.” DNR v. Seaman at p. 309.

A new right to representation of counsel at arraignment is not a complicated concept nor

does it require “constantly changing regulation.” If the legislature intended to overrule

longstanding federal and state case law interpreting the Sixth Amendment right to counsel and

clearly create the policy of a right to counsel at arraignment, the legislature would be required to

write “reasonably precise” statutory language that mandates indigent defendants to have the right

to counsel at arraignment. Nowhere in the MIDC Act does the legislature expressly create a law

that gives indigent defendants the right to representation at the arraignment and enable the MIDC

to create administrative rules governing that new right.

26
Furthermore, because the legislature did not create an unambiguous right to counsel at

arraignment in the MIDC Act, the right to counsel was not presented to the Governor pursuant to

the enactment and presentment requirements of Article 4, §33 of the Michigan Constitution.

(“Every bill passed by the legislature shall be presented to the governor before it becomes law…”).

Clearly, the MIDC establishment of Standard 4’s right to counsel at arraignment alters the “legal

rights, duties and relations” of indigent criminal defendants. See Blank, supra p. 113-114. Second,

the establishment of a right to counsel at arraignment is a determination of policy that is a

fundamentally legislative that cannot be established through administrative rule-making by the

MIDC. Blank, supra at p. 114.

Significantly, the legislature was clear that the MIDC could not interfere with the “supreme

court’s authority over practice and procedure…. as set forth in section 5 of article VI of the state

constitution of 1963” and was clear that the MIDC could not interfere with the Michigan Supreme

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Court’s authority to conduct arraignments and make indigency determinations under Article VI of

the Michigan Constitution. MCL 780.985 (3) and MCL 780.991 (3)(a). The legislature clearly

intended to constrain the MIDC from creating constitutional policies that interfere with the

constitutional duties of the judiciary. Therefore, the MIDC acted in an “inherently legislative

matter” without legislative authorization in establishing the Standard 4 right to counsel at

arraignment. When the MIDC acts in an “inherently legislative matter” without clear legislation

and without adhering to enactment and presentment requirements of Article 4, §26 of the Michigan

Constitution of 1963 (approval by the Governor), the MIDC has violated Michigan’s separation of

powers clause.” Id. at p. 120.

27
B. The MIDC infringes on the Michigan Supreme Court’s authority over practice
and procedure and takes over essential functions of the judiciary in violation of
Article 3, §2 of the Michigan Constitution of 1963.

The Michigan Supreme Court has the exclusive constitutional authority to establish

practice and procedure under Article VI, §5 of the Michigan Constitution of 1963. As stated

previously, not only did the legislature fail to precisely create the new right to counsel at

arraignment, the legislature clearly placed limits on the MIDC’s authority to do so and expressly

mandated:

… any minimum standard shall not infringe on the supreme court’s authority over
practice and procedure in the courts of this of this state as set forth in section 5 of
article VI of the state constitution of 1963.

MCL 780.985 (3). The legislature further mandated that the LARA and MIDC could not interfere

with the Michigan Supreme Court’s authority to process indigency determinations under Article

VI of the Michigan Constitution. MCL 780.991 (3)(a). The Trial Court correctly noted that the

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legislature “does not permit the MIDC to force the judiciary to comply with the minimum

standards.” (11/3/17 Order p. 9).

Contrary to the Trial Court’s findings that the MIDC standards do not conflict with the

Michigan Court Rules, 12 MIDC Standard 4 expressly conflicts with the Michigan Supreme Court’s

numerous areas of practice and procedure developed to address its constitutional duties under the

Sixth Amendment of the United States Constitution to determine indigency and appoint indigent

defense counsel. First, the Michigan Supreme Court has developed rules governing the

determination of indigency. MCR 6.005 (B) requires the arraigning court to determine indigency

if a defendant requests an attorney and claims financial inability to retain an attorney. MCR 6.005

(B) lists several factors that the court needs to consider when determining indigency:

12
12/3/17 Opinion p. 11.
28
1) present employment, earning capacity and living expenses;
2) outstanding debts and liabilities, secured and unsecured;
3) whether the defendant has qualified for and is receiving any form of public
assistance.
4) availability and convertibility, without undue financial hardship to the
defendant and the defendant’s dependents, of any personal or real property
owned; and
5) any other circumstances that would impair the ability to pay a lawyer’s fee as
would ordinarily be required to retain competent counsel.

MCR 6.005 incorporated the indigency standards and criteria set forth in Michigan Supreme Court

Administrative Order No. 1972-4. Additionally, the State Court Administrators Office developed

SCAO Form MC 222 – Request for Court-Appointed Attorney and Order which also incorporates

the indigency guidelines set forth in MCR 6.005 (B). MCL 8.123 (B) requires trial courts to adopt

a local administrative order that describes the court’s procedures for the delivery of indigent

defense counsel. Finally, MCR 8.123 (D) and (F) requires trial court to collect data and file annual

electronic reporting to SCAO on indigent defense attorney appointment practices in the trial court.

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Standard 4 also conflicts with the Michigan Supreme Court’s procedures on appointing

indigent defense counsel. MCR 6.104 (E) proscribes the advice of rights the trial court must

explain to a criminal defendant. At arraignment, MCR 6.104 (E)(3) specifically requires the trial

court to advise the defendant of “the right to a lawyer at all subsequent court proceedings, and if

appropriate, appoint a lawyer.” MCR 6.005 proscribes the trial court’s responsibility to determine

indigency and appoint indigent defense counsel at all post-arraignment proceedings:

(A) Advice of Right. At the arraignment on the warrant or complaint, the court
must advise the defendant of (1) entitlement to a lawyer’s assistance at all
subsequent court proceedings; and (2) that the court will appoint a lawyer at public
expense if the defendant wants a lawyer and, if so, whether the defender is
financially unable to retain one.

(Emphasis added). MCR 6.005 (D) contains the procedure for appointing counsel:

If the court determines that the defendant is financially unable to retain a lawyer, it
must promptly appoint a lawyer and promptly notify the lawyer of the appointment.

29
The Michigan Court Rules also provide that an indigent defendant in district court cases has a right

to an appointed attorney only when the offense charged requires on conviction a minimum term in

jail or the court determines its sentence may include a term of incarceration, even if suspended.

MCR 6.610 (D)(2). In sum, Standard 4 is in direct conflict with multiple areas of the judiciary’s

rules governing the practice and procedure of conducting arraignments.

Second, the MIDC is taking over and directing essential functions of the trial court without

any legal authority. MIDC Standard 4 requires that indigency determinations and appointment of

counsel be made before the arraignment. 13 The legislature is contradictory on who bears the

responsibility to conduct these indigency determinations before the arraignment. First, the MIDC

Act requires indigency to be determined by the local funding units. MCL 780.991 (3)(a) (“…the

determination of the indigency of any defendant…shall be made as determined by the indigent

criminal defense system…”) Next, the MIDC Act contains a provision that permits, but does not

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require a local funding unit to allow the trial court to play a role in indigency determinations:

A trial court may play a role in this determination as part of any indigent criminal
defense system’s compliance plan under the direction and supervision of the
supreme court, consistent with section 4 of article VI of the state constitution of
1963.

MCL 780.991 (3)(a) (emphasis added). However, the legislature then contradicts itself in the very

next sentence by recognizing the constitutional authority of the Michigan Supreme Court to

determine indigency:

Nothing in this act shall prevent a court from making a determination of indigency
for any purpose consistent with article VI of the state constitution of 1963.

13
Standard 4 requires an appointed arraignment attorney to meet with the defendant before the
arraignment and perform various duties before going on the record. See Argument II above and
Ex. A at p. 6.
30
MCL 780.991 (3)(a). Despite these contradictions, the legislature clearly recognizes that the

judiciary has the authority to determine indigency. This is problematic for the MIDC because, as

the trial court correctly noted, “the MIDC Act does not permit the MIDC to force the judiciary to

comply with the minimum standards.” (11/03/17 Order p. 9). As a result, the legislature does not

authorize the MIDC to direct the trial court to make indigency determinations and the appointment

of counsel before the arraignment as required by Standard 4.

In conclusion, the MIDC clearly infringes on the Michigan Supreme Court’s authority over

the practice and procedure of conducting arraignments. Contrary to the Trial Court’s assertion that

the MIDC Act and the minimum standards do not “attempt to control what occurs in court,” 14 the

MIDC is exerting control over the trial courts by requiring that courts accelerate indigency

determinations and appoint counsel before arraignment. The MIDC is further requiring trial courts

to create the space for pre-arraignment interviews, and create changes in the docket schedule to

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allow for pre-arraignment interviews and “de novo” bond arguments during the arraignment. The

MIDC Act does not authorize the MIDC to interfere with a trial court’s responsibility under the

Michigan Court Rules or the federal and state constitution. Therefore, MIDC is usurping the

Michigan Supreme Court’s exclusive constitutional authority to establish practice and procedure

in violation of the separation of powers under Article 3, §2 of the Michigan Constitution of 1963.

IV. MIDC COMPULSORY RULES AND PROCEDURES ARE INVALID AND


DO NOT HAVE THE FORCE AND EFFECT OF LAW BECAUSE THE MIDC HAS
FAILED TO COMPLY WITH THE ADMINISTRATIVE PROCEDURES ACT,
MCL 24.201 et seq.

The Michigan Supreme Court has recognized that the legislature prescribed through the

Administrative Procedures Act (APA) “an elaborate procedure for rule promulgation in order to

14
11/03/17 Order p. 9.
31
ensure that none of the essential functions of the legislative process are lost in the course of the

performance by agencies of many law-making functions once performed’ by the Legislature.

Dance Corp. v. City of Madison Heights, 466 Mich. 175, 183; 644 N.W.2d 721 (2002), citing

Coalition for Rights v. DSS, 431 Mich. 172, 177; 428 N.W.2d 335-178 (1988). In the absence of

“clear legislative intent to waive the requirements of the APA,” the MIDC must comply with the

“legislatively designed protections of the APA.” Id. at p. 184.

A rule requiring APA compliance is defined as “any regulation, statement, standard, policy,

ruling, or instruction of general applicability that implements or applies law enforced or

administered by the agency...” MCL 24.207. The Michigan Supreme Court has held:

The legislature has defined ‘rule’ broadly so as to defeat the inclination of agencies
to label as ‘bulletins,’ ‘announcements,’ ‘guides’...which, in legal operation and
effect, really amount to rules.

Detroit Base Coalition for Human Rights v. Dir. Dept. of Social Svs., 431 Mich. 172, 183; 428,

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N.W. 2d 335 (1988) (citing Cooper 1 State Administrative Law, p. 108). “An agency shall not

adopt a guideline in lieu of a rule.” MCL 24.226. A “guideline” becomes a rule if provisions of

the guideline are binding.” County of Delta v. Michigan Dept. of Natural Resources, 118 Mich.

App. 458, 468; 325 N. W. 2d. 455 (1982). A compulsory guideline that does not comply with the

APA is invalid and does not have the force of law. Id.

There are several enumerated exceptions to the APA requirements outlined in MCL 24.207

(a) – (r). The APA only narrowly exempts the “minimum standards” from the notice and public

hearing requirements of the APA. MCL 24.207 (r). The MIDC Act also contains the same clear

exemption language:

…An approved minimum standard for the local delivery of indigent criminal
defense services within an indigent defense system is not a rule as defined in section
7 of the administrative procedures act of 1969,1969 PA 306, MCL 24.207.

32
MCL 780.985 (4) (emphasis added). The legislature, however, clearly did not intend to exempt the

MIDC’s compulsory rules and procedures from requirements of the APA. The MIDC Act contains

several references to both “minimum standards,” and “rules and procedures.” 15 The MIDC Act

amendments, however, did not exempt MIDC “rules and procedures” from the APA. Therefore,

the MIDC must comply with the APA notice and hearing requirements in MCL 24.231 through

MCL 24.264 for any established rules and procedures to have the force and effect of law. Goins v.

Greenfield Jeep Eagle, 449 Mich. 1, 9-10; 534 N.W.2d 467 (1995).

The MIDC does have the authority to establish “rules and procedures for indigent criminal

defense systems to apply to the MIDC for grants to bring the system’s delivery of indigent criminal

defense services into compliance with the minimum standards…” MCL 780.989 (g). The

legislature, however, did not give the MIDC the authority to establish rules and procedures without

adhering to the APA. The MIDC has also declared that the “costs expenditures, and rates

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proposed” by the MIDC “are presumed reasonable.” (Ex. E. p. 1). The legislature did not authorize

the MIDC to establish “reasonable” rates for costs and expenditures, and did not authorize them

to set rates without complying with the APA. 16

The MIDC has been promulgating compulsory rules and procedures disguised as

“guidelines” and “instructions” without adhering to the APA. The “Guide for Submission of

15
See MCL 780.989 (d)(ii) (The MIDC Act enables the MIDC executive director to “assist the
MIDC in developing, implementing, and regularly reviewing the MIDC’s standards, rules and
procedures…”); MCL 780.989 (1)(g) (MIDC is also empowered to establish “rules and
procedures for indigent criminal defense systems to apply to the MIDC for grants…”); MCL
780.991 (1) - (2) (the phrase “minimum standards, rules and procedures” is mentioned three
times).
16
The MIDC recognizes it has no authority to set “reasonable rates” for costs and expenditures.
The MIDC is currently seeking a legislative amendment to MCL 780.993 (4) to add the language
“The costs, expenditures, and rates proposed by the MIDC are presumed reasonable.”
33
Compliance Plans, Cost Analyses, and Local Share Calculations” approved by the MIDC contains

multiple compulsory provisions which are enumerated in the Statement of Facts. The Trial Court

erred when it found that this is a “flexible, guiding” document that does not contain rules, yet

found that the MIDC was clearly determining “what types of plans and which types of costs will

be deemed reasonable…” (12/3/17 Opinion p. 17). These “guidelines” and “instructions” are not

flexible if the MIDC clearly sets rates on costs and expenditures that they deem “reasonable”

without any legislative authority to do so and without complying with the APA.

The MIDC has set funding caps for continuing legal education “of no more than $25 per

credit hour” ($300 per attorney) which is a rule. (Ex. D p. 9). Second, the “guideline” dictates that

local funding units must hire an attorney to administer or manage the local indigent defense system.

(Ex. D p. 8). There is no “flexibility” in those rules.

Similarly, the MIDC continues to engage in more overt rule-making in its Compliance Plan

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Application for Indigent Defense Standards 1 – 4 Instructions. First, the MIDC capped hourly rates

for investigators at a not to exceed amount of $75/hour. (Ex. E p. 2). The MIDC also capped

funding for experts and set maximum levels of hourly rate not to exceed compensation from

$30/hour to $200/hour for various categories of experts based on their education levels. Id. The

MIDC further limited funding units to a “capped amount of funds for investigators and experts”

per case based on a tiered classification formula. (Ex. E Compliance Plan Application p. 2-3). The

MIDC also approved limiting capital renovation project funding to $25,000 for confidential space,

which was clearly arbitrary since no rationale was provided by the MIDC for limiting renovation

costs to $25,000. (See Ex. E p. 9 –10). Any requests exceeding $25,000 to create confidential

space will be subject to higher scrutiny and require documented justification. (See Ex. E p. 9 –10).

Regardless of the Trial Court’s opinion that these costs are “reasonable,” the MIDC Act does not

34
give the MIDC authority to set reasonable rates of costs and expenditures. 17 Moreover, the

legislature did not give the MIDC the authority to do any rule-making without complying with the

APA.

The Appellees’ agree that the “Guide for Submission of Compliance Plans, Cost Analyses,

and Local Share Calculations” does not have the force and effect of law. (Respondent’s August

23, 2017 Brief in Support p. 15). However, the MIDC is operating like they do have the force and

effect of law. It is evident from the “guideline” and “instruction” documents that local funding

units must adhere to the multiple capped funding rates to gain approval for their MIDC compliance

plans and cost analyses required MCL 780.993 (4). Moreover, local funding units must comply

with the multiple capped funding rates to be eligible for funding under MCL 780.993(9). Appellees

cannot credibly argue that these documents are “merely explanatory” when the MIDC is conveying

to every funding unit that funding requests cannot exceed capped rates.

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Most egregiously, the MIDC is not transparent in its promulgation of compulsory rules and

procedures. The APA was designed to prevent this very kind of back-door rule-making. Despite

requests by Appellant, the MIDC does not provide the proposed rules to local funding units before

commission meetings. The MIDC summarily approves funding caps and other rules during

commission meetings, labels them as “guidelines” or “instructions”, disseminates them by email

to local funding units after the commission meeting, puts the rules on their website, and expects

compliance. The APA requires an agency to give notice of proposed rules or rule changes to

affected parties, to hold a public hearing, and to submit the proposed rule to the Legislature’s Joint

Committee on Administrative Rules for review and approval. MCL 24.241- MCL 24.242. None

of that happened in this case. Therefore, the MIDC approved “Guide for Submission of

17
See footnote 13.
35
Compliance Plans, Cost Analyses, and Local Share Calculations” and all the multiple rule-making

actions contained in the Compliance Plan Application for Indigent Defense Standards 1 – 4 cannot

be enforced by the MIDC.

In short, the MIDC is trying to pull a bait and switch. For the purposes of this lawsuit, the

MIDC wants the “Guide for Submission of Compliance Plans, Cost Analyses, and Local Share

Calculations,” and presumably also its “Compliance Plan Application for Indigent Defense

Standards”, to be considered merely explanatory and thus not subject to the APA, while in reality

the MIDC is requiring local funding units to comply with multiple provisions contained therein,

thus expecting all the established capped funding rules and compulsory hiring rules to have the

force and effect of law. However, they cannot have it both ways. If the court finds that these

documents are merely explanatory and do not contain mandated rules, then the Court is stating that

none of the local funding units must comply with these guidelines and the MIDC cannot use any

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of the guidelines to penalize local funding units for failing to comply. If the Court finds these

documents contain compulsory rules, then this Court is stating that the LARA and the MIDC must

comply with the APA when promulgating any “guideline” or “instruction” documents.

CONCLUSION AND RELIEF REQUESTED

Appellant respectfully requests that the Court find the Michigan Indigent Defense

Commission Act, MCL 780.981 et seq, as amended violates the separation of powers doctrine in

Article 3, §2 of the Michigan Constitution of 1963. Appellant further requests that the Court find

the LARA and MIDC approved minimum standard regulations are unconstitutional pursuant to

the separation of powers doctrine in Article 3, §2 of the Michigan Constitution of 1963. Appellant

further respectfully requests that the Court find that MIDC Standard 4 – Counsel at First

Appearance and Other Critical Stages was not authorized by statute and usurps the constitutional

36
function of the judiciary under Article VI, §5 of the Michigan Constitution of 1963. Appellant

further requests the Court to rule that the multiple compulsory provisions in the guidelines and

compliance plan application identified above are binding rules that have no force and effect of law

because the MIDC failed to comply with the APA. Appellant further requests the Court to order

that any failure by local funding units to adhere to the compulsory provisions cannot be a basis for

denial of compliance plans and cost analyses required by the MIDC Act. Appellant finally requests

that the Court order the MIDC to comply with the APA in the future when promulgating any

funding caps, hiring requirements, cost and expenditure rates, and any other compulsory rules.

Respectfully submitted,

OAKLAND COUNTY CORPORATION COUNSEL

Dated: December 15, 2017 /s/ Keith J. Lerminiaux


Keith Lerminiaux (P30190)

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Oakland County Corporation Counsel

Dated: December 15, 2017 /s/ Mary Ann Jerge


Mary Ann Jerge (P46574)
Oakland County Assistant Corporation Counsel

Attorneys for Appellant


1200 N. Telegraph Rd.
Pontiac, MI 48341

37
Exhibit A

Minimum Standards
for Indigent Criminal
Defense Services

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FALL 2017

Standards 1, 2, 3, and 4 were approved by the Department of Licensing and


Regulatory Affairs on May 22, 2017. All indigent defense delivery systems in
Michigan are required to submit compliance plans and cost projections for the
first standards to the MIDC no later than November 20, 2017.

This packet also contains the next set of standards which have been proposed by
the Commission. The MIDC invites comments on proposed Standards 5, 6, 7 and
8 from all members of the public and the criminal justice community through
February 1, 2018.

Michigan Indigent Defense Commission


SEND COMMENTS TO: 200 N. WASHINGTON SQUARE, 3RD FLOOR, LANSING, MICHIGAN, 48913 |
COMMENTS@MICHIGANIDC.GOV
(517) 657-3066

FOR MORE INFORMATION, VISIT OUR WEBSITE AT WWW.MICHIGANIDC.GOV


Standard 1 Education and Training of Defense Counsel
The MIDC Act requires adherence to the principle that “[d]efense counsel is required to attend
continuing legal education relevant to counsel’s indigent defense clients.” MCL 780.991(2)(e).
The United States Supreme Court has held that the constitutional right to counsel guaranteed
by the Sixth Amendment includes the right to the effective assistance of counsel. The mere
presence of a lawyer at a trial “is not enough to satisfy the constitutional command.”
Strickland v Washington, 466 US 668, 685; 104 S Ct 2052, 2063; 80 L Ed 2d 674 (1984).
Further, the Ninth Principle of The American Bar Association’s Ten Principles of a Public
Defense Delivery System provides that a public defense system, in order to provide effective
assistance of counsel, must ensure that “Defense counsel is provided with and required to
attend continuing legal education.”

The MIDC proposed a minimum standard for the education and training of defense counsel.
The version conditionally approved by the Court and submitted by the MIDC and approved by
the department is as follows:

A. Knowledge of the law. Counsel shall have reasonable knowledge of substantive Michigan
and federal law, constitutional law, criminal law, criminal procedure, rules of evidence, ethical
rules and local practices. Counsel has a continuing obligation to have reasonable knowledge
of the changes and developments in the law. “Reasonable knowledge” as used in this
standard means knowledge of which a lawyer competent under MRPC 1.1 would be aware.

B. Knowledge of scientific evidence and applicable defenses. Counsel shall have


reasonable knowledge of the forensic and scientific issues that can arise in a criminal case,
the legal issues concerning defenses to a crime, and be reasonably able to effectively litigate
those issues.

C. Knowledge of technology. Counsel shall be reasonably able to use office technology

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commonly used in the legal community, and technology used within the applicable court
system. Counsel shall be reasonably able to thoroughly review materials that are provided in
an electronic format.

D. Continuing education. Counsel shall annually complete continuing legal education


courses relevant to the representation of the criminally accused. Counsel shall participate in
skills training and educational programs in order to maintain and enhance overall preparation,
oral and written advocacy, and litigation and negotiation skills. Lawyers can discharge this
obligation for annual continuing legal education by attending local trainings or statewide
conferences. Attorneys with fewer than two years of experience practicing criminal defense
in Michigan shall participate in one basic skills acquisition class. All attorneys shall annually
complete at least twelve hours of continuing legal education. Training shall be funded
through compliance plans submitted by the local delivery system or other mechanism that
does not place a financial burden on assigned counsel. The MIDC shall collect or direct the
collection of data regarding the number of hours of continuing legal education offered to and
attended by assigned counsel, shall analyze the quality of the training, and shall ensure that
the effectiveness of the training be measurable and validated. A report regarding these data
shall be submitted to the Court annually by April 1 for the previous calendar year.

Comment:

The minimum of twelve hours of training represents typical national and some local county
requirements, and is accessible in existing programs offered statewide.

Page 1 of 12
Standard 2 Initial Interview
The MIDC Act requires adherence to the principle that “[d]efense counsel is provided sufficient
time and a space where attorney-client confidentiality is safeguarded for meetings with
defense counsel’s client.” MCL 780.991(2)(a). United States Supreme Court precedent and
American Bar Association Principles recognize that the “lack of time for adequate preparation
and the lack of privacy for attorney-client consultation” can preclude “any lawyer from
providing effective advice.” See United States v Morris, 470 F3d 596, 602 (CA 6, 2006) (citing
United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984)). Further, the
Fourth Principle of The American Bar Association’s Ten Principles of a Public Defense Delivery
System provides that a public defense system, in order to provide effective assistance of
counsel, must ensure that “Defense counsel is provided sufficient time and a confidential
space within which to meet with the client.”

The MIDC proposed a minimum standard for the initial client interview. The version
conditionally approved by the Court and submitted by the MIDC and approved by the
department is as follows:

A. Timing and Purpose of the Interview: Counsel shall conduct a client interview as soon
as practicable after appointment to represent the defendant in order to obtain information
necessary to provide quality representation at the early stages of the case and to provide the
client with information concerning counsel’s representation and the case proceedings. The
purpose of the initial interview is to: (1) establish the best possible relationship with the
indigent client; (2) review charges; (3) determine whether a motion for pretrial release is
appropriate; (4) determine the need to start-up any immediate investigations; (5) determine
any immediate mental or physical health needs or need for foreign language interpreter
assistance; and (6) advise that clients should not discuss the circumstances of the arrest or

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allegations with cellmates, law enforcement, family or anybody else without counsel present.
Counsel shall conduct subsequent client interviews as needed. Following appointment, counsel
shall conduct the initial interview with the client sufficiently before any subsequent court
proceeding so as to be prepared for that proceeding. When a client is in local custody, counsel
shall conduct an initial client intake interview within three business days after appointment.
When a client is not in custody, counsel shall promptly deliver an introductory communication
so that the client may follow-up and schedule a meeting. If confidential videoconference
facilities are made available for trial attorneys, visits should at least be scheduled within three
business days. If an indigent defendant is in the custody of the Michigan Department of
Corrections (MDOC) or detained in a different county from where the defendant is charged,
counsel should arrange for a confidential client visit in advance of the first pretrial hearing.

B. Setting of the interview: All client interviews shall be conducted in a private and
confidential setting to the extent reasonably possible. The indigent criminal defense system
shall ensure the necessary accommodations for private discussions between counsel and
clients in courthouses, lock-ups, jails, prisons, detention centers, and other places where
clients must confer with counsel.

C. Preparation: Counsel shall obtain copies of any relevant documents which are available,
including copies of any charging documents, recommendations and reports concerning pretrial
release, and discoverable material.

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D. Client status:

1. Counsel shall evaluate whether the client is capable of participation in his/her


representation, understands the charges, and has some basic comprehension of criminal
procedure. Counsel has a continuing responsibility to evaluate, and, where appropriate, raise
as an issue for the court the client’s capacity to stand trial or to enter a plea pursuant to MCR
6.125 and MCL 330.2020. Counsel shall take appropriate action where there are any questions
about a client’s competency.

2. Where counsel is unable to communicate with the client because of language or


communication differences, counsel shall take whatever steps are necessary to fully explain
the proceedings in a language or form of communication the client can understand. Steps
include seeking the appointment of an interpreter to assist with pretrial preparation,
interviews, investigation, and in‐ court proceedings, or other accommodations pursuant to
MCR. 1.111.

Comments:

1. The MIDC recognizes that counsel cannot ensure communication prior to court with an out
of custody indigent client. For out of custody clients the standard instead requires the attorney
to notify clients of the need for a prompt interview.

2. The requirement of a meeting within three business days is typical of national requirements
(Florida Performance Guidelines suggest 72 hours; in Massachusetts, the Committee for Public
Counsel Services Assigned Counsel Manual requires a visit within three business days for
custody clients; the Supreme Court of Nevada issued a performance standard requiring an
initial interview within 72 hours of appointment).

3. Certain indigent criminal defense systems only pay counsel for limited client visits in

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custody. In these jurisdictions, compliance plans with this standard will need to guarantee
funding for multiple visits.

4. In certain systems, counsel is not immediately notified of appointments to represent


indigent clients. In these jurisdictions, compliance plans must resolve any issues with the
failure to provide timely notification.

5. Some jurisdictions do not have discovery prepared for trial counsel within three business
days. The MIDC expects that this minimum standard can be used to push for local reforms to
immediately provide electronic discovery upon appointment.

6. The three-business-day requirement is specific to clients in “local” custody because some


indigent defendants are in the custody of the Michigan Department of Corrections (MDOC)
while other defendants might be in jail in a different county from the charging offense.

7. In jurisdictions with a large client population in MDOC custody or rural jurisdictions


requiring distant client visits compliance plans might provide for visits through confidential
videoconferencing.

8. Systems without adequate settings for confidential visits for either in-custody or out-
ofcustody clients will need compliance plans to create this space.

9. This standard only involves the initial client interview. Other confidential client interviews
are expected, as necessary.

Page 3 of 12
Standard 3 Investigation and Experts
The United States Supreme Court has held: (1) “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland v Washington, 466 US 668, 691; 104 S Ct 2052, 2066; 80 L Ed 2d
674 (1984); and (2) “[c]riminal cases will arise where the only reasonable and available
defense strategy requires consultation with experts or introduction of expert evidence,
whether pretrial, at trial, or both.” Harrington v Richter, 562 US 86, 106; 131 S Ct 770, 788;
178 L Ed 2d 624 (2011). The MIDC Act authorizes “minimum standards for the local delivery
of indigent criminal defense services providing effective assistance of counsel…” MCL
780.985(3).

The MIDC proposed a minimum standard for investigations and experts. The version
conditionally approved by the Court and submitted by the MIDC and approved by the
department is as follows:

A. Counsel shall conduct an independent investigation of the charges and offense as promptly
as practicable.

B. When appropriate, counsel shall request funds to retain an investigator to assist with the
client’s defense. Reasonable requests must be funded.

C. Counsel shall request the assistance of experts where it is reasonably necessary to prepare
the defense and rebut the prosecution’s case. Reasonable requests must be funded as
required by law.

D. Counsel has a continuing duty to evaluate a case for appropriate defense investigations or
expert assistance. Decisions to limit investigation must take into consideration the client’s
wishes and the client’s version of the facts.

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Comments:

1. The MIDC recognizes that counsel can make “a reasonable decision that makes particular
investigations unnecessary” after a review of discovery and an interview with the client.
Decisions to limit investigation should not be made merely on the basis of discovery or
representations made by the government.

2. The MIDC emphasizes that a client’s professed desire to plead guilty does not automatically
alleviate the need to investigate.

3. Counsel should inform clients of the progress of investigations pertaining to their case.

4. Expected increased costs from an increase in investigations and expert use will be tackled
in compliance plans.

Standard 4 Counsel at First Appearance and other Critical Stages


The MIDC Act provides that standards shall be established to effectuate the following: (1) “All
adults, except those appearing with retained counsel or those who have made an informed
waiver of counsel, shall be screened for eligibility under this act, and counsel shall be assigned
as soon as an indigent adult is determined to be eligible for indigent criminal defense
services.” MCL 780.991(1)(c); (2) “A preliminary inquiry regarding, and the determination of,
the indigency of any defendant shall be made by the court not later than at the defendant's
first appearance in court. MCL 780.991(3)(a); (3) …counsel continuously represents and

Page 4 of 12
personally appears at every court appearance throughout the pendency of the case.” MCL
780.991(2)(d)(emphasis added).

The MIDC proposed a minimum standard on counsel at first appearance and other critical
stages. The version conditionally approved by the Court and submitted by the MIDC and
approved by the department is as follows:

A. Counsel shall be assigned as soon as the defendant is determined to be eligible for indigent
criminal defense services. The indigency determination shall be made and counsel appointed
to provide assistance to the defendant as soon as the defendant’s liberty is subject to
restriction by a magistrate or judge. Representation includes but is not limited to the
arraignment on the complaint and warrant. Where there are case-specific interim bonds set,
counsel at arraignment shall be prepared to make a de novo argument regarding an
appropriate bond regardless of and, indeed, in the face of, an interim bond set prior to
arraignment which has no precedential effect on bond-setting at arraignment. Nothing in this
paragraph shall prevent the defendant from making an informed waiver of counsel.

B. All persons determined to be eligible for indigent criminal defense services shall also have
appointed counsel at pre-trial proceedings, during plea negotiations and at other critical
stages, whether in court or out of court.

Comments:

1. The proposed standard addresses an indigent defendant’s right to counsel at every court
appearance and is not addressing vertical representation (same defense counsel continuously
represents) which will be the subject of a future minimum standard as described in MCL
780.991(2)(d).

2. One of several potential compliance plans for this standard may use an on-duty

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arraignment attorney to represent defendants. This appointment may be a limited appearance
for arraignment only with subsequent appointment of different counsel for future proceedings.
In this manner, actual indigency determinations may still be made during the arraignment.

3. Among other duties, lawyering at first appearance should consist of an explanation of the
criminal justice process, advice on what topics to discuss with the judge, a focus on the
potential for pre-trial release, or achieving dispositions outside of the criminal justice system
via civil infraction or dismissal. In rare cases, if an attorney has reviewed discovery and has
an opportunity for a confidential discussion with her client, there may be a criminal disposition
at arraignment.

4. The MIDC anticipates creative and cost-effective compliance plans like representation and
advocacy through videoconferencing or consolidated arraignment schedules between multiple
district courts.

5. This standard does not preclude the setting of interim bonds to allow for the release of in-
custody defendants. The intent is not to lengthen any jail stays. The MIDC believes that case-
specific interim bond determinations should be discouraged. Formal arraignment and the
formal setting of bond should be done as quickly as possible.

6. Any waiver of the right to counsel must be both unequivocal and knowing, intelligent, and
voluntary. People v Anderson, 398 Mich 361; 247 NW2d 857 (1976). The uncounseled
defendant must have sufficient information to make an intelligent choice dependent on a
range of case-specific factors, including his education or sophistication, the complexity or
easily grasped nature of the charge, and the stage of the proceeding.

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New Standard proposed by MIDC – public comments welcome
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Standard 5 - Independence from the Judiciary

The MIDC Act requires the agency to establish minimum standards, rules, and procedures to
adhere to the following: “The delivery of indigent criminal defense services shall be
independent of the judiciary but ensure that the judges of this state are permitted and
encouraged to contribute information and advice concerning that delivery of indigent criminal
defense services.” MCL 780.991 (1)(a).

The United States Supreme Court addressed the issue of independence in Polk v Dodson, 454
US 312, 321-322; 102 S Ct 445, 451; 70 L Ed 2d 509 (1981):

First, a public defender is not amenable to administrative direction in the same


sense as other employees of the State. Administrative and legislative decisions
undoubtedly influence the way a public defender does his work. State decisions
may determine the quality of his law library or the size of his caseload. But a
defense lawyer is not, and by the nature of his function cannot be, the servant
of an administrative superior. . . Second, and equally important, it is the
constitutional obligation of the State to respect the professional independence
of the public defenders whom it engages. (Emphasis added.)

The MIDC proposes a minimum standard to ensure that indigent criminal defense services are
independent of the judiciary:

A. The indigent criminal defense system (“the system”) should be designed to


guarantee the integrity of the relationship between lawyer and client. The system and
the lawyers serving under it should be free from political and undue budgetary
influence. Both should be subject to judicial supervision only in the same manner and
to the same extent as retained counsel or the prosecution. The selection of lawyers

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and the payment for their services shall not be made by the judiciary or employees
reporting to the judiciary. Similarly, the selection and approval of, and payment for,
other expenses necessary for providing effective assistance of defense counsel shall
not be made by the judiciary or employees reporting to the judiciary.

B. The court’s role shall be limited to: informing defendants of right to counsel; making
a determination of indigency and entitlement to appointment; if deemed eligible for
counsel, referring the defendant to the appropriate agency (absent a valid waiver);
and contributing information and advice concerning the system.

Staff Comment:

Only in rare cases may a judge encourage a specific attorney be assigned to represent a
specific defendant because of unique skills and abilities that attorney possesses. In these
cases, the judge’s input may be received and the system may take this input into account
when making an appointment, however the system may not make the appointment solely
because of pressure from the judge.

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New Standard proposed by MIDC – public comments welcome
comments@michiganidc.gov by February 1, 2018

Standard 6 - Indigent Defense Workloads

The MIDC Act provides that “[d]efense counsel's workload is controlled to permit effective
representation.” MCL 780.991(2)(b). The United States Supreme Court has held that the
constitutional right to counsel guaranteed by the Sixth Amendment includes the right to the
effective assistance of counsel. The mere presence of a lawyer at a trial “is not enough to
satisfy the constitutional command.” Strickland v Washington, 466 US 668, 685; 104 S Ct
2052, 2063; 80 L Ed 2d 674 (1984). Further, the Fifth Principle of The American Bar
Association’s Ten Principles of a Public Defense Delivery System provides that a public defense
system, in order to provide effective assistance of counsel, must ensure that “[d]efense
counsel’s workload is controlled to permit the rendering of quality representation.”

The MIDC proposes a minimum standard for indigent defense workloads:

The caseload of indigent defense attorneys shall allow each lawyer to give each client the time
and effort necessary to ensure effective representation. Neither defender organizations,
county offices, contract attorneys, nor assigned counsel should accept workloads that, by
reason of their excessive size, interfere with the rendering of quality representation. 1

These workloads will be determined over time through special Michigan specific weighted
caseload studies. 2 Until the completion of such studies, defender organizations, county offices,
public defenders, assigned counsel, and contract attorneys should not exceed the caseload
levels adopted by the American Council of Chief Defenders – 150 felonies or 400 non-traffic
misdemeanors 3 per attorney per year. 4 If an attorney is carrying a mixed caseload which
includes cases from felonies and misdemeanors, or non-criminal cases, these standards
should be applied proportionally. 5

These caseload limits reflect the maximum caseloads for full-time defense attorneys,

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practicing with adequate support staff, who are providing representation in cases of average
complexity in each case type specified.

Staff comments:

1. The MIDC is mindful of caseload pressures on the prosecution and fully supports proper
funding for prosecutors to have reasonable caseloads.
2. The MIDC is aware that the problem of excessive caseloads is one that needs to be
resolved in tandem with compensation reform, so that attorneys do not need to take
on too many indigent defense assignments to earn a living. The MIDC is concurrently
proposing a standard on economic disincentives or incentives for representing indigent
clients.
3. The MIDC does not believe that caseload pressures should ever create a situation where
indigent clients facing criminal charges do not receive the appointment of counsel.
4. Compliance plans should include a means to account for and audit caseload
calculations.

1
Language parallels Supreme Court of Washington, In the Matter of the adoption of new standards for indigent
defense and certification of compliance, Standard 3.2, June 15, 2012.
2
See e.g. Guidelines for Indigent Defense Caseloads, Texas Indigent Defense Commission, January 2015; The
Missouri Project: A Study of the Missouri Public Defender System and Attorney Workload Standards, American Bar
Association, June 2014. The MIDC has issued a Request for Proposals for a Michigan study.
3
Non-traffic misdemeanors include offenses relating to operating a motor vehicle while intoxicated or visibly
impaired. MCL 257.625.
4
American Council of Chief Defenders Statement on Caseloads and Workloads, Resolution, August 24, 2007. “Per
year” refers to any rolling twelve-month period, not a calendar year.
5
Id. An example of proportional application might be 75 felonies and 200 non-traffic misdemeanors in a caseload.

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New Standard proposed by MIDC – public comments welcome
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Standard 7 - Qualification and Review

The MIDC Act calls for a standard establishing that “Defense counsel’s ability, training, and
experience match the nature and complexity of the case to which he or she is appointed.”
MCL 780.991(2)(c). Further, the Act requires that “Defense counsel is systematically
reviewed at the local level for efficiency and for effective representation according to
MIDC standards.” MCL 780.991(2)(f). The MIDC’s conditionally approved Standard 1 sets
forth the requirements for the Education and Training of assigned counsel, and should be
considered a prerequisite to, and means to achieve, the standard for qualification and review
of criminal defense attorneys appointed to represent indigent accused defendants. The United
States Supreme Court has held that the constitutional right to counsel guaranteed by the
Sixth Amendment includes the right to the effective assistance of counsel. Strickland v
Washington, 466 US 668, 685; 104 S Ct 2052, 2063; 80 L Ed 2d 674 (1984). The right to
effective assistance of counsel applies equally whether counsel was appointed or retained.
Cuyler v Sullivan, 446 US 335, 344–45; 100 S Ct 1708, 1716; 64 L Ed 2d 333 (1980).

The MIDC proposes a minimum standard for qualification and review:

A. Basic Requirements. In order to assure that indigent accused receive the effective
assistance of counsel to which they are constitutionally entitled, attorneys providing
defense services shall meet the following minimum professional qualifications (hereafter
“basic requirements”):
1. Satisfy the minimum requirements for practicing law in Michigan as
determined by the Michigan Supreme Court and the State Bar of Michigan;
and
2. Comply with the requirements of MIDC Standard 1, relating to the Training
and Education of Defense Counsel.

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B. Qualifications. Eligibility for particular case assignments shall be based on counsel’s
ability, training and experience. Attorneys must meet the following case-type
qualifications:
1. Misdemeanor Cases
a. Satisfaction of all Basic Requirements; and
b. Serve as co-counsel or second chair in a prior trial (misdemeanor, felony,
bench or jury); or
c. equivalent experience and ability to demonstrate similar skills.
2. Low-severity Felony Cases
a. Satisfaction of all Basic Requirements; and
i. Has practiced criminal law for one full year (either as a prosecutor,
public defender, or in private criminal defense practice); and
ii. Has been trial counsel alone or with other trial counsel and handled
a significant portion of the trial in two criminal cases that have
reached a verdict, one of which having been submitted to a jury; or
iii. Have equivalent experience and ability to demonstrate similar skills.
3. High-severity Felony Cases
a. Satisfaction of all Basic Requirements; and
i. Has practiced criminal law for two full years (either as a prosecutor,
public defender, or in private criminal defense practice); and
ii. Has been trial counsel alone or with other trial counsel and handled
a significant portion of the trial in four criminal cases that have been
submitted to a jury.

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New Standard proposed by MIDC – public comments welcome
comments@michiganidc.gov by February 1, 2018

4. Life Offense Cases


a. Satisfaction of all Basic Requirements; and
i. Has practiced criminal law for five full years (either as a prosecutor,
public defender, or in private criminal defense practice); and
ii. Has prior experience as lead counsel in no fewer than seven felony
jury trials that have been submitted to a jury.

C. Review. The quality of the representation provided by indigent defense providers must
be monitored and regularly assessed. Productivity is a component of the review process.
Review is a process to evaluate the quality of the representation after an attorney has
established the minimum requirements for eligibility. For attorneys seeking qualification
under sections B(1)(c) or B(2)(a)(iii), the review process can be used for that purpose.
In some cases, the review will give notice to an attorney whose performance can be
improved. In all cases, the evaluation of attorneys must be made by peers in the criminal
defense community, allowing for input from other stakeholders in the criminal justice
system including judges, prosecutors and clients.

Staff Comments:

1. The Minimum Standard for Qualification and Review applies to all attorneys accepting
assignments to represent defendants charged in adult criminal cases, including
attorneys employed by a public defender office.
2. Misdemeanors, low-severity felonies and high-severity felonies are defined in the
Michigan Legislative Sentencing Guidelines. A “life offense” for purposes of this
Minimum Standard includes any case where the offense charged or enhancement
sought subjects the accused defendant in a criminal case to life in prison.
3. The MIDC Act focuses on qualifications that relate to counsel’s ability, training and

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experience. Other non-merit based qualifications that relate to counsel’s membership
in a bar association or maintaining a local business address shall not be given undue
weight.
4. The MIDC discourages imposing a geographic limitation on counsel’s practice area, so
long as counsel can meet with a client on an as-needed basis without hardship to the
client and can appear in court when required.
5. The appointing authority should maintain a list of qualified counsel, but has the
discretion to reach outside of the list of locally qualified attorneys when required in
order to appoint counsel with the ability, training and experience to match the nature
and complexity of the case to be assigned.

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New Standard proposed by MIDC – public comments welcome
comments@michiganidc.gov by February 1, 2018

Standard 8 - Economic Disincentives or Incentives

Attorneys must have the time, fees, and resources to provide the effective assistance of
counsel guaranteed to indigent criminal defendants by the United States and Michigan
Constitutions. The MIDC Act calls for a minimum standard that provides: “Economic
disincentives or incentives that impair defense counsel's ability to provide effective
representation shall be avoided.” MCL 780.991(2)(b). Fair compensation for assigned counsel
may optimally be achieved through a public defender office, and the MIDC recommends an
indigent criminal defender office be established where assignment levels demonstrate need,
together with the active participation of a robust private bar. MCL 780.991(1)(b). In the
absence of, or in combination with a public defender office, counsel should be assigned
through a rotating list and be reasonably compensated. Contracted services for defense
representation are allowed, so long as financial disincentives to effective representation are
minimized. This standard attempts to balance the rights of the defendant, defense attorneys,
and funding units, recognizing the problems inherent in a system of compensation lacking
market controls.

The MIDC proposes the following minimum standard regarding economic incentives and
disincentives:

A. Rates of Payment for Salaried Public Defenders. Reasonable salaries and benefits
and resources should be provided to indigent defense counsel. The rates paid by the Michigan
Attorney General for Special Assistant Attorneys General, or other state offices serve as
guidance for reasonable compensation.

B. Compensation and Expenses for Assigned Counsel. Assigned counsel should receive
prompt compensation at a reasonable rate and should be reimbursed for their reasonable out-

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of-pocket, case-related expenses. Assigned counsel should be compensated for all work
necessary to provide quality legal representation. Activities outside of court appearances,
such as directing an investigation, negotiating, or tactical planning, etc., require no less legal
skill and expertise than in-court appearances, and are equally important to quality
representation.

Attorney hourly rates shall be at least $100 per hour for misdemeanors, $110 per hour for
non-life offense felonies, and $120 per hour for life offense felonies. These rates must be
adjusted annually for cost of living increases consistent with economic adjustments made to
State of Michigan employees’ salaries. Counsel must also be reimbursed for case-related
expenses as specified in Section E.

To protect funding units, courts and attorneys alike, local systems should establish expected
hourly thresholds for additional scrutiny. Assigned counsel should scrupulously track all hours
spent preparing a case to include with invoice submission. All receipts or documentation for
out-of-pocket and travel-related expenses actually incurred in the case qualifying for
reimbursement should be preserved. Fee requests which exceed expected hourly thresholds
should not be paid until an administrative review indicates that the charges were reasonably
necessary.

Event based, capped hourly rates, and flat fee payment schemes are discouraged unless
carefully designed to minimize disincentives and provide compensation reasonably expected
to yield an hourly rate of compensation equivalent to the required minimum rate. If utilized,
these alternative schemes must be based on a compensation system that realistically
assesses the cost of providing competent representation, including the costs of trial,

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New Standard proposed by MIDC – public comments welcome
comments@michiganidc.gov by February 1, 2018

investigation, expert assistance, and extraordinary expenses, and should take into
consideration objective standards of representation consistent with those set forth in other
minimum standards for indigent defense. They should also follow all expense reimbursement
guidelines in Section E.

C. Contracting for Indigent Defense Services. The terms of any indigent defense contract
should avoid any actual or apparent financial disincentives to the attorney’s obligation to
provide clients with competent legal services. Contracts may only be utilized if:

(1) They are based on reliable caseload data, and in conjunction with a method, specified
in the contract, for compensation to account for increases or decreases in caseload
size;
(2) They are based on a compensation system that realistically assesses the cost of
providing competent representation as described above in Section B;
(3) They provide for regular, periodic payments to the indigent defense organization or
attorney;
(4) They include a mechanism to seek reimbursement for case-related expenses;
(5) They include a provision allowing for counsel to petition for additional compensation
for the assignment of co-counsel in any case where the offense charged or
enhancement sought subjects the indigent defendant to life in prison;
(6) They implement the MIDC required hourly rates; when hourly schemes are not
utilized, local systems must demonstrate that compensation is at least equivalent to
these rates.

D. Conflict Counsel. When any conflict of interest is identified by a public defender office or
by assigned counsel, that case should be returned for reassignment to the designating
authority. Payments to conflict counsel (fees or any other expenses incurred during the
representation) shall not be deducted from the line item or contract negotiated with the

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primary providers (public defender office, house counsel, assignment system or through any
agreement with private attorneys or law firms).

E. Reimbursements. Attorneys must be reimbursed for any out-of-pocket expenses they


incur as a result of representation. Mileage should be reimbursed based on prevailing local
norms and should not be less than State of Michigan standard published rates.

F. Payments. Vouchers submitted by assigned counsel and contract defenders should be


reviewed by an administrator and/or her and his staff, who should be empowered to approve
or disapprove fees. This is efficient, ensures the independence of counsel, and relieves judges
of the burden of this administrative task. It also helps to equalize fees through a centralized
fee-approval system. Vouchers should be approved in a timely manner unless there is cause
to believe the amount claimed is unwarranted. In lengthy cases, periodic billing and payment
during the course of representation should be allowed.

Expenditure of public dollars should be subject to control mechanisms and audits that verify
expenditure accuracy. This should be accomplished by following generally accepted
procedures that separate staff duties; establish billing policies; and ensure thorough review
of vouchers, including benchmark setting and investigation where necessary. The approval
process should be supported by an efficient dispute resolution procedure.

Sources and Authority for Proposed Standard 8:


A Race to the Bottom: Speed & Savings Over Due Process: A Constitutional Crisis, National
Legal Aid & Defender Association (2008).

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New Standard proposed by MIDC – public comments welcome
comments@michiganidc.gov by February 1, 2018

U.S.C.A. Const. Amend. 6; Mich. Const. 1963 Art. 1, § 20.


ABA 10 Principles of a Public Defense Delivery System (Principle 8).
American Bar Association Criminal Justice Standards for Providing Defense Services, Standard
5-2.4.
Position Paper on Reasonable Fees After the Passage of the MIDC Act, Michigan Indigent
Defense Commission (Summer 2016).
In re Atchison, No. 292281, 2012 WL 164437 (Mich. Ct. App. Jan. 19, 2012).

Staff Comments:
1. Attorneys should be reimbursed for expenses for investigators, expert witnesses,
transcripts, and any out-of-pocket expenses incurred in the course of representation.
2. For hourly payments, local systems should establish protocol through which indigent
defense administrators oversee the submission, review and approval of invoices for
both assigned counsel and contract counsel. Attorneys should be directed to submit
explanations for any invoices in which their hours exceed the expected maximum hours.
After attorneys submit itemized bills, the administrator and/or staff should review and
determine whether the case falls into the category of minimal scrutiny, meaning that it
falls within the expected number of allotted hours, or the category of heightened
scrutiny for exceeding an expected hourly threshold, meaning the administrator needs
to further investigate the invoice. Bills should not be automatically approved or denied
if they fall too far above or below the expected threshold, but rather the attorneys’
explanations should be reviewed, and if the administrator does not find the explanation
sufficient, the administrator should invite further explanation. Upon receiving
additional details, the administrator then makes a final decision. All local systems
should have policies in place that outline voucher review procedures, including the right
for attorneys to appeal decisions and the right for administrators to remove attorneys
from panel lists or terminate contracts for ongoing submissions that exceed the

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threshold.
3. Due to the potential to disincentivize quality representation, event based, capped
hourly rates, and flat fee payment schemes will be subjected to increased monitoring
and auditing as a condition of receiving MIDC funds.
4. The MIDC will collect data on event based, capped hourly rates, and flat fee payment
schemes for the first year after implementation of this standard and revise the standard
if these schemes are disincentivizing quality representation.

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Exhibit B
Order Michigan Supreme Court
Lansing, Michigan

June 1, 2016 Robert P. Young, Jr.,


Chief Justice

ADM File No. 2015-27 Stephen J. Markman


Brian K. Zahra
Bridget M. McCormack
Administrative Order No. 2016-2 David F. Viviano
Richard H. Bernstein
Joan L. Larsen,
Regulations Governing a System for Justices
Appointment of Counsel for Indigent
Defendants in Criminal Cases and
Minimum Standards for Indigent
Criminal Defense Services

Pursuant to the Michigan Indigent Defense Commission Act, 2013 PA 93, the
Michigan Indigent Defense Commission submitted to this Court proposed standards that
would regulate the manner in which counsel would be appointed to represent indigent
defendants in criminal cases, and would further impose specific training, experience and
continuing legal education requirements on attorneys who seek appointment as counsel in
these types of cases. The Court published the proposed standards for comment, and after
due consideration, conditionally approves the standards as set forth below.1

This approval is subject to and contingent on legislative revision of the MIDC Act

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to address provisions that the Court deems to be of uncertain constitutionality. These
provisions include:

1. MCL 780.985 creates the MIDC as an “autonomous entity” and places it


within “the judicial branch.” Employees of the judicial branch are subject
to this Court’s exclusive constitutional authority to exercise general
supervisory control. See Const 1963, art 6, §§ 1, 4, and 7; Judicial
Attorneys Ass’n v Michigan, 459 Mich 291, 298; 586 NW2d 635 (1998).
We are concerned that placing the MIDC within the judicial branch, while
denying the Court the ability to supervise and direct the commission’s
activities and employment, may contravene the general principle of
separation of powers under the Michigan Constitution, Const 1963, art 3, §
2, and impinge upon the specific constitutional function of this Court to
supervise the judicial branch.

2. MCL 780.983(f) defines “indigent criminal defense system,” an entity


subject to the authority of the MIDC, in a manner that includes trial courts,
and combines trial courts with nonjudicial local governments. In addition,

1
The conditional approval reflects the Court’s ongoing authority to establish, implement,
and impose professional standards. See Administrative Order No. 1981-7 (approving
regulations and standards for the appellate indigent defense system); Administrative
Order No. 2004-6 (altering the standards of AO No. 1981-7).
2

MCL 780.989(1)(a) allows the MIDC to “[d]evelop[] and oversee[] the


implementation, enforcement, and modification of minimum standards,
rules, and procedures to ensure that indigent criminal defense services
providing effective assistance of counsel are consistently delivered to all
indigent adults in this state;” and MCL 780.989(1)(b) allows the MIDC “to
assure compliance with the commission’s minimum standards, rules, and
procedures.” We are concerned that these provisions might contain
enforcement mechanisms that present an unconstitutional usurpation of this
Court’s authority under Const 1963, art 6, § 4, which provides that the
Supreme Court “shall have general superintending control over all courts.”
They also raise general separation of powers concerns under Const 1963,
art 3, § 2.

3. MCL 780.989(1)(f) and (2) and MCL 780.991(2) arguably allow the MIDC
to regulate the legal profession. The Constitution exclusively assigns
regulation of the legal profession to the judiciary. See Const 1963, art 6, §
5; Grievance Administrator v Lopatin, 462 Mich 235; 612 NW2d 120
(2000); Attorney General v Michigan Public Serv Comm, 243 Mich App
487, 517; 625 NW2d 16 (2000).

To promote the goal of providing effective assistance of counsel for indigent


defendants in criminal cases without disruption, the Court urges legislative revision of the
MIDC Act to address the constitutional concerns raised herein by this Court. If this

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Court determines before December 31, 2016, that legislative revisions of the MIDC Act
have sufficiently addressed our concerns, the standards approved conditionally by this
Court today will then take full effect. Otherwise, this Court’s conditional approval of
these standards will be automatically withdrawn on December 31, 2016. The Court will
then determine what, if any, further action it may take to preserve its constitutional
authority.

The conditionally approved standards and requirements, together with the


commentary of the MIDC and the MIDC’s description of the principles governing the
creation of the standards, are as follows:

Minimum Standards for Appointed Counsel under the MIDC Act

Standard 1

Education and Training of Defense Counsel

The MIDC Act requires adherence to the principle that “[d]efense counsel is required to
attend continuing legal education relevant to counsel’s indigent defense clients.” MCL
780.991(2)(e). The United States Supreme Court has held that the constitutional right to
3

counsel guaranteed by the Sixth Amendment includes the right to the effective assistance
of counsel. The mere presence of a lawyer at a trial “is not enough to satisfy the
constitutional command.” Strickland v Washington, 466 US 668, 685; 104 S Ct 2052,
2063; 80 L Ed 2d 674 (1984). Further, the Ninth Principle of The American Bar
Association’s Ten Principles of a Public Defense Delivery System provides that a public
defense system, in order to provide effective assistance of counsel, must ensure that
“Defense counsel is provided with and required to attend continuing legal education.”

The MIDC proposed a minimum standard for the education and training of defense
counsel. The version conditionally approved by the Court is as follows:

A. Knowledge of the law. Counsel shall have reasonable knowledge of substantive


Michigan and federal law, constitutional law, criminal law, criminal procedure, rules of
evidence, ethical rules and local practices. Counsel has a continuing obligation to have
reasonable knowledge of the changes and developments in the law. “Reasonable
knowledge” as used in this standard means knowledge of which a lawyer competent
under MRPC 1.1 would be aware.

B. Knowledge of scientific evidence and applicable defenses. Counsel shall have


reasonable knowledge of the forensic and scientific issues that can arise in a criminal
case, the legal issues concerning defenses to a crime, and be reasonably able to
effectively litigate those issues.

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C. Knowledge of technology. Counsel shall be reasonably able to use office technology
commonly used in the legal community, and technology used within the applicable court
system. Counsel shall be reasonably able to thoroughly review materials that are provided
in an electronic format.

D. Continuing education. Counsel shall annually complete continuing legal education


courses relevant to the representation of the criminally accused. Counsel shall participate
in skills training and educational programs in order to maintain and enhance overall
preparation, oral and written advocacy, and litigation and negotiation skills. Lawyers can
discharge this obligation for annual continuing legal education by attending local
trainings or statewide conferences. Attorneys with fewer than two years of experience
practicing criminal defense in Michigan shall participate in one basic skills acquisition
class. All attorneys shall annually complete at least twelve hours of continuing legal
education. Training shall be funded through compliance plans submitted by the local
delivery system or other mechanism that does not place a financial burden on assigned
counsel. The MIDC shall collect or direct the collection of data regarding the number of
hours of continuing legal education offered to and attended by assigned counsel, shall
analyze the quality of the training, and shall ensure that the effectiveness of the training
be measurable and validated. A report regarding these data shall be submitted to the
Court annually by April 1 for the previous calendar year.
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Comment:

The minimum of twelve hours of training represents typical national and some local
county requirements, and is accessible in existing programs offered statewide.

Standard 2

Initial Interview

The MIDC Act requires adherence to the principle that “[d]efense counsel is provided
sufficient time and a space where attorney-client confidentiality is safeguarded for
meetings with defense counsel’s client.” MCL 780.991(2)(a). United States Supreme
Court precedent and American Bar Association Principles recognize that the “lack of
time for adequate preparation and the lack of privacy for attorney-client consultation” can
preclude “any lawyer from providing effective advice.” See United States v Morris, 470
F3d 596, 602 (CA 6, 2006) (citing United States v Cronic, 466 US 648; 104 S Ct 2039;
80 L Ed 2d 657 (1984)). Further, the Fourth Principle of The American Bar Association’s
Ten Principles of a Public Defense Delivery System provides that a public defense
system, in order to provide effective assistance of counsel, must ensure that “Defense
counsel is provided sufficient time and a confidential space within which to meet with the
client.”

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The MIDC proposed a minimum standard for the initial client interview. The version
conditionally approved by the Court is as follows:

A. Timing and Purpose of the Interview: Counsel shall conduct a client interview as
soon as practicable after appointment to represent the defendant in order to obtain
information necessary to provide quality representation at the early stages of the case and
to provide the client with information concerning counsel’s representation and the case
proceedings. The purpose of the initial interview is to: (1) establish the best possible
relationship with the indigent client; (2) review charges; (3) determine whether a motion
for pretrial release is appropriate; (4) determine the need to start-up any immediate
investigations; (5) determine any immediate mental or physical health needs or need for
foreign language interpreter assistance; and (6) advise that clients should not discuss the
circumstances of the arrest or allegations with cellmates, law enforcement, family or
anybody else without counsel present. Counsel shall conduct subsequent client
interviews as needed. Following appointment, counsel shall conduct the initial interview
with the client sufficiently before any subsequent court proceeding so as to be prepared
for that proceeding. When a client is in local custody, counsel shall conduct an initial
client intake interview within three business days after appointment. When a client is not
in custody, counsel shall promptly deliver an introductory communication so that the
client may follow-up and schedule a meeting. If confidential videoconference facilities
5

are made available for trial attorneys, visits should at least be scheduled within three
business days. If an indigent defendant is in the custody of the Michigan Department of
Corrections (MDOC) or detained in a different county from where the defendant is
charged, counsel should arrange for a confidential client visit in advance of the first pre-
trial hearing.

B. Setting of the interview: All client interviews shall be conducted in a private and
confidential setting to the extent reasonably possible. The indigent criminal defense
system shall ensure the necessary accommodations for private discussions between
counsel and clients in courthouses, lock-ups, jails, prisons, detention centers, and other
places where clients must confer with counsel.

C. Preparation: Counsel shall obtain copies of any relevant documents which are
available, including copies of any charging documents, recommendations and reports
concerning pretrial release, and discoverable material.

D. Client status:

1. Counsel shall evaluate whether the client is capable of participation in his/her


representation, understands the charges, and has some basic comprehension of criminal
procedure. Counsel has a continuing responsibility to evaluate, and, where appropriate,
raise as an issue for the court the client’s capacity to stand trial or to enter a plea pursuant
to MCR 6.125 and MCL 330.2020. Counsel shall take appropriate action where there are

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any questions about a client’s competency.

2. Where counsel is unable to communicate with the client because of language or


communication differences, counsel shall take whatever steps are necessary to fully
explain the proceedings in a language or form of communication the client can
understand. Steps include seeking the appointment of an interpreter to assist with pre‐
trial preparation, interviews, investigation, and in‐ court proceedings, or other
accommodations pursuant to MCR. 1.111.

Comments:

1. The MIDC recognizes that counsel cannot ensure communication prior to court with
an out of custody indigent client. For out of custody clients the standard instead requires
the attorney to notify clients of the need for a prompt interview.

2. The requirement of a meeting within three business days is typical of national


requirements (Florida Performance Guidelines suggest 72 hours; in Massachusetts, the
Committee for Public Counsel Services Assigned Counsel Manual requires a visit within
three business days for custody clients; the Supreme Court of Nevada issued a
performance standard requiring an initial interview within 72 hours of appointment).
6

3. Certain indigent criminal defense systems only pay counsel for limited client visits in
custody. In these jurisdictions, compliance plans with this standard will need to
guarantee funding for multiple visits.

4. In certain systems, counsel is not immediately notified of appointments to represent


indigent clients. In these jurisdictions, compliance plans must resolve any issues with the
failure to provide timely notification.

5. Some jurisdictions do not have discovery prepared for trial counsel within three
business days. The MIDC expects that this minimum standard can be used to push for
local reforms to immediately provide electronic discovery upon appointment.

6. The three-business-day requirement is specific to clients in “local” custody because


some indigent defendants are in the custody of the Michigan Department of Corrections
(MDOC) while other defendants might be in jail in a different county from the charging
offense.

7. In jurisdictions with a large client population in MDOC custody or rural jurisdictions


requiring distant client visits compliance plans might provide for visits through
confidential videoconferencing.

8. Systems without adequate settings for confidential visits for either in-custody or out-of-

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custody clients will need compliance plans to create this space.

9. This standard only involves the initial client interview. Other confidential client
interviews are expected, as necessary.

Standard 3

Investigation and Experts

The United States Supreme Court has held: (1) “counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
unnecessary.” Strickland v Washington, 466 US 668, 691; 104 S Ct 2052, 2066; 80 L Ed
2d 674 (1984); and (2) “[c]riminal cases will arise where the only reasonable and
available defense strategy requires consultation with experts or introduction of expert
evidence, whether pretrial, at trial, or both.” Harrington v Richter, 562 US 86, 106; 131 S
Ct 770, 788; 178 L Ed 2d 624 (2011). The MIDC Act authorizes “minimum standards for
the local delivery of indigent criminal defense services providing effective assistance of
counsel…” MCL 780.985(3).
7

The MIDC proposed a minimum standard for investigations and experts. The version
conditionally approved by the Court is as follows:

A. Counsel shall conduct an independent investigation of the charges and offense as


promptly as practicable.

B. When appropriate, counsel shall request funds to retain an investigator to assist with
the client’s defense. Reasonable requests must be funded.

C. Counsel shall request the assistance of experts where it is reasonably necessary to


prepare the defense and rebut the prosecution’s case. Reasonable requests must be funded
as required by law.

D. Counsel has a continuing duty to evaluate a case for appropriate defense investigations
or expert assistance. Decisions to limit investigation must take into consideration the
client’s wishes and the client’s version of the facts.

Comments:

1. The MIDC recognizes that counsel can make “a reasonable decision that makes
particular investigations unnecessary” after a review of discovery and an interview with
the client. Decisions to limit investigation should not be made merely on the basis of
discovery or representations made by the government.

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2. The MIDC emphasizes that a client’s professed desire to plead guilty does not
automatically alleviate the need to investigate.

3. Counsel should inform clients of the progress of investigations pertaining to their case.

4. Expected increased costs from an increase in investigations and expert use will be
tackled in compliance plans.

Standard 4

Counsel at First Appearance and other Critical Stages

The MIDC Act provides that standards shall be established to effectuate the following:
(1) “All adults, except those appearing with retained counsel or those who have made an
informed waiver of counsel, shall be screened for eligibility under this act, and counsel
shall be assigned as soon as an indigent adult is determined to be eligible for indigent
criminal defense services.” MCL 780.991(1)(c); (2) “A preliminary inquiry regarding,
and the determination of, the indigency of any defendant shall be made by the court not
later than at the defendant's first appearance in court. MCL 780.991(3)(a); (3) …counsel
8

continuously represents and personally appears at every court appearance throughout the
pendency of the case.” MCL 780.991(2)(d)(emphasis added).

The MIDC proposed a minimum standard on counsel at first appearance and other critical
stages. The version conditionally approved by the Court is as follows:

A. Counsel shall be assigned as soon as the defendant is determined to be eligible for


indigent criminal defense services. The indigency determination shall be made and
counsel appointed to provide assistance to the defendant as soon as the defendant’s
liberty is subject to restriction by a magistrate or judge. Representation includes but is not
limited to the arraignment on the complaint and warrant. Where there are case-specific
interim bonds set, counsel at arraignment shall be prepared to make a de novo argument
regarding an appropriate bond regardless of and, indeed, in the face of, an interim bond
set prior to arraignment which has no precedential effect on bond-setting at arraignment.
Nothing in this paragraph shall prevent the defendant from making an informed waiver of
counsel.

B. All persons determined to be eligible for indigent criminal defense services shall also
have appointed counsel at pre-trial proceedings, during plea negotiations and at other
critical stages, whether in court or out of court.

Comments:

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1. The proposed standard addresses an indigent defendant’s right to counsel at every
court appearance and is not addressing vertical representation (same defense counsel
continuously represents) which will be the subject of a future minimum standard as
described in MCL 780.991(2)(d).

2. One of several potential compliance plans for this standard may use an on-duty
arraignment attorney to represent defendants. This appointment may be a limited
appearance for arraignment only with subsequent appointment of different counsel for
future proceedings. In this manner, actual indigency determinations may still be made
during the arraignment.

3. Among other duties, lawyering at first appearance should consist of an explanation of


the criminal justice process, advice on what topics to discuss with the judge, a focus on
the potential for pre-trial release, or achieving dispositions outside of the criminal justice
system via civil infraction or dismissal. In rare cases, if an attorney has reviewed
discovery and has an opportunity for a confidential discussion with her client, there may
be a criminal disposition at arraignment.
9

4. The MIDC anticipates creative and cost-effective compliance plans like representation
and advocacy through videoconferencing or consolidated arraignment schedules between
multiple district courts.

5. This standard does not preclude the setting of interim bonds to allow for the release of
in-custody defendants. The intent is not to lengthen any jail stays. The MIDC believes
that case-specific interim bond determinations should be discouraged. Formal
arraignment and the formal setting of bond should be done as quickly as possible.

6. Any waiver of the right to counsel must be both unequivocal and knowing, intelligent,
and voluntary. People v Anderson, 398 Mich 361; 247 NW2d 857 (1976). The
uncounseled defendant must have sufficient information to make an intelligent choice
dependent on a range of case-specific factors, including his education or sophistication,
the complexity or easily grasped nature of the charge, and the stage of the proceeding.

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I, Larry S. Royster, 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.
June 1, 2016
Clerk
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Exhibit C
Exhibit D

A GUIDE FOR SUBMISSION OF


COMPLIANCE PLANS,

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COST ANALYSES,
AND LOCAL SHARE
CALCULATIONS

Summer 2017
Table of Contents
Applicable Statutes ............................................................. 3
Local Share Definition ....................................................... 3
MIDC Creates Rules and Procedures for Compliance Plans for
Indigent Criminal Defense Systems ..................................... 3
Indigent Criminal Defense System Creates Compliance Plan .... 3
Approval of Compliance Plans ............................................. 4
Compliance After Funding .................................................. 4
Introduction ....................................................................... 5
Compliance Plan Components ............................................. 6
Local Share ................................................................... 7
Funding Process ............................................................. 7
General Guidelines for Compliance Plans ................................ 8
Cross-Standard Principles .................................................. 8
Administrator for Delivery Systems ................................... 8

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Defense Attorneys – Direct Service Providers ..................... 8
Non-Lawyers – Direct Service Providers and Interdisciplinary
Defense Teams .............................................................. 8
Public Defender and Managed Assigned Counsel Systems ..... 8
Regional Cooperation ...................................................... 8
Travel .......................................................................... 9
Standard 1 – Training and Education ................................... 9
Standard 2 – Initial Interview ............................................ 10
Standard 3 – Investigation and Experts .............................. 10
Standard 4 – Counsel at First Appearance and other Critical
Stages ........................................................................... 11
Resources and Contact Information ...................................... 12

2
Applicable Statutes

Local Share Definition


"Local share" or "share" means an indigent criminal defense
system's average annual expenditure for indigent criminal defense
services in the 3 fiscal years immediately preceding the creation of
the MIDC under this act, excluding money reimbursed to the
system by individuals determined to be partially indigent.” MCL
§780.983(g).

MIDC Creates Rules and Procedures for Compliance Plans for


Indigent Criminal Defense Systems
“Establishing rules and procedures for indigent criminal defense
systems to apply to the MIDC for grants to bring the system’s
delivery of indigent criminal defense services into compliance with
the minimum standards established by the MIDC.” MCL
§780.989(1)(g).

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Indigent Criminal Defense System Creates Compliance Plan
“Except as provided in subsection (2), every local unit of
government that is part of an indigent criminal defense system
shall comply with an approval plan under this act.” MCL
§780.997(1).

A system’s duty to comply under the terms of its proposed plan as


prescribed under subsection (1) is contingent upon receipt of a
grant in the amount contained in the plan and cost analysis
approved by the MIDC. MCL 780.997(2).

“No later than 180 days after a standard is approved by the


department, each indigent criminal defense system shall submit a
3
plan to the MIDC for the provision of indigent criminal defense
services in a manner as determined by the MIDC and shall submit
an annual plan for the following state fiscal year on or before
February 1 of each year. A plan submitted under this subsection
shall specifically address how the minimum standards established
by the MIDC under this act shall be met and shall include a cost
analysis. The standards to be addressed in the annual plan are
those approved not less than 60 days before the annual plan
submission date. This cost analysis shall include a statement of
the funds in excess of the local share, if any, necessary to allow its
system to comply with the MIDC's minimum standards.” MCL
§780.993(3).

Approval of Compliance Plans

“The MIDC shall approve or disapprove a plan or cost analysis, or


both a plan and cost analysis, submitted under subsection (3), and
shall do so within 60 calendar days of the submission of the plan

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and cost analysis. If the MIDC disapproves the plan, the cost
analysis, or both the plan and the cost analysis, the indigent
criminal defense system shall consult with the MIDC and submit a
new plan, a new cost analysis, or both within 30 calendar days of
the mailing date of the official notification of the MIDC’s
disapproval.” MCL §780.993(4).

Compliance After Funding


“Within 180 days after receiving funds from the MIDC under
subsection (7), an indigent criminal defense system shall comply
with the terms of the grant in bringing its system into compliance
with the minimum standards established by the MIDC for effective
assistance of counsel.” MCL §780.993(10).

4
Introduction
On May 22, 2017, the Department of Licensing and Regulatory
Affairs approved the first four minimum standards for indigent
criminal defense systems in the State of Michigan. Systems,
defined as trial court funding units or a collaboration of trial court
funding units in certain circumstances, have until November 20,
2017, to submit to the MIDC their plans for addressing the
implementation of the standards. These guidelines are designed
to assist with the preparation of the cost analysis and compliance
planning for delivering indigent criminal defense services. Efficient
and cost effective models for delivering indigent criminal defense
services are encouraged wherever possible.
The system should identify its desired delivery method. Multiple
models ranging from a defender office, an assigned counsel list,
contract attorneys, or a mix of systems are available. New public
defender offices or managed assigned counsel systems are
encouraged where appropriate. In some areas, more than one
delivery method will need to be in place to comply with the

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minimum standards and to provide the highest quality of indigent
defense to people who are poor and accused of crimes.
The MIDC Act states that if an indigent caseload is sufficiently high,
then a mixed system combining a public defender office and an
appointment system may be used. For more information about
creating a new system, please see Delivery System Reform Models:
Planning Improvements in Public Defense (MIDC, December 2016)
available on the MIDC’s website: http://bit.ly/midcguide Whether
implementing a new model, or maintaining an existing delivery
system, the compliance plans must address how the minimum
standards will be met. Efficient models of indigent defense delivery
systems that can partner with multiple court funding units where
feasible are desired.
Systems are encouraged to include all relevant stakeholders in
addressing the new standards, proposing changes to existing

5
systems, and analyzing the cost of meeting the new standard
requirements. Suggestions for stakeholders include, but are not
limited to: representatives from the trial court funding unit’s
administration (i.e. county administrators/controllers, city
managers, township supervisors, or their designees), trial court
judges, court administrators, members of the local defense bar and
local prosecutors. In the case where the system’s funding unit is a
county, it is strongly recommended that plans submitted are
inclusive of the indigent defense services in both the circuit and all
of the district courts of the county.

Compliance Plan Components


All compliance plans will need to address the following general
information;
o The local system contact for the submitted plan (phone,
email, address)
o A local financial contact for the post award fiscal

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administration
o Trial court funding unit(s) and court(s) included in the plan
o The identification of stakeholders or committee members
involved in the planning process
o Collaborative plans must list all systems and trial courts
associated with the plan
The submitted plan will address each standard individually. A
statement is required to identify and expand on the current or
existing state of the system’s process or work in subject the area
of the standard. The submission will then need to highlight the
changes or enhancements needed to achieve the standard, if any.
A cost analysis for the implementation issues related to each
standard is required. Reasonableness will be stressed and a list or
guideline for allowable costs will be provided. Costs cannot be
excessive. It will be difficult for this guideline to be exhaustive of
all possible financial scenarios. To minimize rejections after official

6
submission, systems should contact their MIDC Regional Manager,
before submissions, to discuss compliance plan costs that pose
situations not addressed in guidelines.
Local Share
The MIDC Act requires maintenance of a certain level of funding by
the local system(s), defined as the local share. The calculation of
the local share involves the capture of expenditures for adult
indigent defense costs for the three fiscal years preceding
enactment of Public Act 93 of 2013. The costs are then offset by
the corresponding collections or payments for court appointed
counsel services in the same time period on behalf of defendants
made by either an individual or an agency.
The submission shall identify a methodology employed to achieve
the local share. A certification of the local share calculation,
acknowledged through local official authorization, shall be a
requirement of the plan. Awards will then be calculated as the sum
of the approved cost analysis per standard offset by the local share.

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Funding Process
A condition of award to the local system(s) shall include the
grantee securing and supplying to the MIDC a resolution from the
local legislative branch (board of commissioners, city council) for
the creation of a new fund within the local chart of accounts. The
sole purpose of this fund shall be for accepting the grants funds
from the MIDC and charging all plan-related costs to this fund. As
a condition or assurance upon accepting the award, this fund will
allow for better management of the grant funds and monitoring by
the local and state interested parties. The local fund description
shall allow for any fund balance not to revert to the general fund
at the close of a fiscal year. Rollover funds will be used for
expenditures that cross fiscal years as well as unexpended funds
to be used for future compliance expenditures.

7
General Guidelines for Compliance Plans

Cross-Standard Principles
Administrator for Delivery Systems
A funding unit considering the use of a managed assigned counsel
system or public defender administrator must use a licensed
attorney in good standing with the State Bar of Michigan for all
duties involving management or oversight of attorneys or cases
within the system.
Defense Attorneys – Direct Service Providers
All attorneys identified by the funding unit to provide direct
representation to indigent defendants must be licensed attorneys
in good standing with the State Bar of Michigan and are bound by
the Michigan Rules of Professional Conduct. Until approval of
Minimum Standard 8, Economic Disincentives or Incentives,
funding unit employees or contract providers shall be given
reasonable compensation.
Non-Lawyers – Direct Service Providers and Interdisciplinary

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Defense Teams
Provided they are used to comply with minimum standards, grant
funds can be used to hire employees or independently contract with
licensed private investigators, or experts in any field recognized in
the criminal justice community, to assist the defense.
Public Defender and Managed Assigned Counsel Systems
Systems may choose to set up regional or local delivery system
reform models such as public defender offices or managed
assigned counsel programs to meet the minimum standards. Set-
up and operational costs should be included.
Regional Cooperation
The Commission urges efficient models of providing indigent
defense. In some communities, multiple funding units may
collaborate to deliver indigent defense services. The statutory
authority for multiple counties cooperating in a regional delivery
8
system model can be found in the Urban Cooperation Act of 1967,
at M.C.L. § 124.501 et. seq.
Travel
Any travel related expenses requested for compliance planning
shall not exceed the allowable rates provided by the “Schedule of
Travel Rates” and the general policies for reimbursement of travel
adopted by the State of Michigan. Rates can be found online at
http://www.michigan.gov/dtmb/0,5552,7-150-9141_13132---
,00.html
Absent extraordinary circumstances, no grant funds for out-of-
state travel will be awarded for compliance plans.
Standard 1 – Training and Education
Pursuant to MIDC Standard 1.D, system practices that require
assigned counsel to subsidize mandatory training will not be
approved. Training shall be funded through compliance plans
submitted by the local delivery system or other mechanism that
does not place a financial burden on assigned counsel.

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In the compliance plan, provide the names and P#s of all attorneys
who will provide indigent defense in the year covered by the
compliance plan. Further identify in that category how many of
those attorneys have practiced criminal defense for two years or
less.
In the plan and cost analysis, describe whether the training is part
of the 12 hours of annual continuing legal education (CLE) and/or
skills training for new lawyers.
For new training programs, identify the cost of set-up and
implementation including personnel, contractors, equipment,
supplies, and operating expenses. For existing training
programs, identify the number of attorneys to be trained, the
courses or programs that will be attended with a cost of
registration/tuition (using a rate of no more than $25 per credit
hour), travel, and other expenses.

9
For webinars, such as the National Association for Public Defense,
use an annual rate of $20/per criminal defense attorney for
membership and access to programming.
For the Michigan State Appellate Defender Office’s (Criminal
Defense Resource Center) online resources, use an annual rate of
$50/per criminal defense attorney for membership and access to
programming.

Standard 2 – Initial Interview


If public defender offices need additional attorneys to comply with
the initial interview standard, funding units may seek grant funds
for personnel.
Other systems may need to change contracting or assigned counsel
compensation policies. Funding units, using a contract or rotating
assignment system, shall pay attorneys for the initial interview in
all assigned criminal cases. Attorneys shall be compensated a
reasonable fee for the initial interview. Confidential video visits are

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permissible for initial interviews with in-custody defendants.
Efficient use of technology (such as the use of PolyCom systems)
and existing space in courthouses and jails in lieu of construction
projects is encouraged to ensure and facilitate confidential
interview space. Equipment can be included in the cost analysis of
the compliance plan.

Standard 3 – Investigation and Experts


Funding units may seek grant funds to employ licensed
investigators as needed to comply with Standard 3, and/or seek
grant funds to contract with investigators or any expert witness
identified as necessary to assist with the defense of an indigent
client. Funding Units may seek grant funds for a line item
expense for this purpose. A forthcoming MIDC publication on

10
allowable expenses will describe the maximum funding for this
purpose.

Standard 4 – Counsel at First Appearance and other Critical


Stages
Funding Units with public defender systems may seek grant funds
to hire defense attorneys to comply with the standard for counsel
at first appearance.
Funding units using a contract or rotating assignment system shall
pay attorneys for the first appearance in a criminal case. A flat-
rate can be paid to an attorney to be available on an on-call basis;
until the approval of Standard 8 providing more specific guidelines,
counsel shall be paid a reasonable fee.

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11
Resources and Contact Information

MIDC website: www.michiganidc.gov


MIDC main office: 200 N. Washington Sq, 3rd Floor, Lansing
517-657-3066
Questions, anytime: email info@michiganidc.gov

Information about standards http://michiganidc.gov/standards/


White Papers to assist with compliance planning:
http://michiganidc.gov/wp-content/uploads/2017/03/White-
Papers_Complete-Set-with-Standards.pdf

Delivery System Reform Models: Planning Improvements in Public


Defense (MIDC, December 2016): http://bit.ly/midcguide

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To schedule a meeting with a Regional Manager,
see the attached map for details and contact
information, also available online at:
http://michiganidc.gov/midc-regional-consultant-assignment-
and-contact-information/

12
Michigan Indigent Defense Commission
Regional Manager Assignments

Contact: Marla McCowan


Director of Training, Outreach & Support
mmccowan@michiganidc.gov
(517) 388-6702

KEWEENAW

HOUGHTON

ONTONAGON BARAGA

LUCE
MARQUETTE
GOGEBIC ALGER CHIPPEWA
IRON SCHOOLCRAFT
MACKINAC
DICKINSON DELTA

MENOMINEE
EMMET
CHEBOYGAN

Jana Mathieu CHARLEVOIX PRESQUE ISLE

jmathieu@michiganidc.gov LEELANAU
ANTRIM
MONTMORENCY
OTSEGO ALPENA

(231) 492-2427 KALKASKA OSCODA


BENZIE GRAND ALCONA
TRAVERSE CRAWFORD

MANISTEE MISSAUKEE OGEMAW IOSCO

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WEXFORD ROSCOMMON
ARENAC

Barbara Klimaszewski MASON LAKE OSCEOLA CLARE GLADWIN


HURON
bklimaszewski@michiganidc.gov OCEANA
ISABELLA BAY
MECOSTA MIDLAND
(989) 280-9498 NEWAYGO
TUSCOLA SANILAC
MONTCALM SAGINAW
MUSKEGON GRATIOT
LAPEER
KENT SHIAWASSEE
IONIA ST. CLAIR
OTTAWA CLINTON GENESEE
MACOMB
Christopher Dennie ALLEGAN BARRY EATON
INGHAM
LIVINGSTON
OAKLAND

cdennie@michiganidc.gov VAN BUREN


CALHOUN
(616) 446-4080 KALAMAZOO JACKSON
WASHTENAW WAYNE

CASS BRANCHHILLSDALE MONROE


BERRIEN ST. JOSEPH LENAWEE

Ashley Carter Kelly McDoniel Tanya Grillo


acarter@michiganidc.gov kmcdoniel@michiganidc.gov tgrillo@michiganidc.gov
(517) 582-2427 (313) 319-4431 (586) 638-6546

13
Exhibit E

Compliance Plan for Indigent Defense Standards 1 – 4

INSTRUCTIONS
Local indigent defense systems have until November 20, 2017, to submit to the Michigan Indigent
Defense Commission (MIDC) a plan for compliance with the first four approved minimum standards for
indigent criminal defense services. This document includes instructions and a compliance plan structure
for the submission and information on how to calculate your request for state funding. All application
questions must be answered within the requirements, and all attachments and signatures included for
a complete application. Failure to submit a complete application will result in the application being
disapproved and returned, per MCL 780.993(4). Applications should be submitted through the MIDC’s
web portal at http://portal.michiganidc.gov/.
The application document includes the following sections: Applicant Information, Compliance Plan
Narrative, Cost Analysis, Local Share Calculation, Data Collection, and Grant Calculation. The MIDC
website, http://michiganidc.gov, hosts helpful information for compliance planning including additional

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guidelines, detailed white papers on each of the four standards and several model plans including sample
cost analyses for different local indigent defense delivery systems.

Guidelines for the Cost Analysis and Local Share in the Compliance Plan
All proposed, estimated, or actual expenditures reported in either the Cost Analysis or the Local Share
should be reflective of direct indigent defense system activities. For any funding requests for ancillary
agencies, the claimed expense must be reasonably and directly related to the indigent defense function,
with a clear justification and compelling rationale. The Local Share calculation – which acts as a baseline
for continued funding unit contribution to the indigent defense system – may be reported as an estimate
if the actual funding level cannot be calculated. If an estimate is provided for the Local Share, the
methodology to calculate the estimate must be reported. All Local Share calculations must be certified
by the authorizing official on the application. The following instructions provide general guidance for
the Cost Analysis and, specifically, the enhanced costs to meet the provisions of the four standards. The
costs, expenditures, and rates proposed are presumed reasonable; variations will be considered on a
case-by-case basis.

Page 1 of 12
Standard 1 - Indigent defense systems may achieve this standard by having attorneys register for a
specific training or by facilitating a local or regional training program. Registration for CLE hours will be
allowed at the rate of $25 per credit hour. Instructors for training programs will be reimbursed at
reasonable consultant rates commensurate with the local market. A guideline for illustrative purposes
may be up to $75/hr with allowance for program development and preparation time for the training.
Travel expenses for the attorneys to attend training or instructors for training programs will be
reimbursed at current State of Michigan travel rates for mileage, meals, and lodging, if needed.

Standard 2 - Attorney time to meet this standard will be reimbursed according to reasonable local
attorney rates, whether salaried, contract, or assigned attorneys. To facilitate early communication,
practical use of technologies available for digital face-to-face communication may be employed.
Supplies and equipment needed for technology-based communications will be considered. If it is
necessary to create or alter building space to provide a confidential setting for attorneys and their clients,
renovation expenses are allowed up to a maximum of $25,000 per location. Requests exceeding $25,000
will be reviewed with higher due diligence and considered with accompanying documentation for
justification.

Standard 3 - Expenses for investigators will be considered at hourly rates not to exceed $75. Expenses
for expert witnesses will follow a tiered level of compensation based on education level and type of
expert,* not to exceed these amounts:

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High School or Equivalent $30/hr
Associate’s Degree $50/hr
Bachelor’s Degree $70/hr
Master’s Degree $85/hr
Crime Scene and Related Experts $100/hr
CPA/Financial Expert $100/hr
Pharmacy/PharmD $125/hr
Information Technology Experts $150/hr
Ph.D./Licensed Doctor $200/hr

*The table of expert hourly rates is adopted from the guidelines published by the North Carolina Indigent Defense Services
Commission. Variations will be considered on a case-by-case basis.

Each indigent defense system will be limited to a capped amount of funds for investigators and experts
based on the total new circuit adult criminal filings within the jurisdiction in the most recent calendar

Page 2 of 12
year, as reported and certified with the State Court Administrative Office. Systems within district courts
of the 3rd class are considered in Tier I unless special circumstances are presented.
0 - 499 cases/year = Tier I - $10,000
500 - 999 cases/year = Tier II - $25,000
1,000 – 9,999 cases/year = Tier III - $50,000
Over 10,000 cases/year = Tier IV – To be determined bases on further discussion
and review of records of the system(s)

Standard 4 - Attorney time to meet this standard should be reimbursed according to reasonable attorney
rates, whether salaried, contract, or assigned attorneys. Methods for implementation can include on-
call or appointed attorney systems, or other efficient models.

APPLICANT INFORMATION
Applicant Funding Unit(s):
Trial Courts Included in this Compliance Plan Submission:
Fiduciary Funding Unit:
Federal ID Number:

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Street Address/City/Zip Code:

AUTHORIZED OFFICIAL (Person Authorized to Enter into Agreements):


Name and Title

Street Address/City/Zip

Telephone Email Address

Signature Date

Page 3 of 12
CONTACT INFORMATION
PRIMARY CONTACT
(Person Responsible for Oversight and Reporting of Standards Implementation):
Name and Title

Street Address/City/Zip

Telephone Email Address

Signature Date

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FINANCIAL CONTACT
(Person Responsible for Grant Accounting):
Name and Title

Street Address/City/Zip

Telephone Email Address

Signature Date

Page 4 of 12
COMPLIANCE PLAN NARRATIVE
Briefly describe the indigent defense delivery system(s) – contract, assigned counsel, or public defender
– that the funding unit(s), for which this application is being considered, employed to deliver services
before the MIDC Act took effect (July 1, 2013).

Generally, how does the system(s) intend to comply with the MIDC standards 1-4? Please address
whether you will continue with the model in place above, whether you have already made a transition
to a new delivery system, or whether you intend to transition to a new delivery system.

Please identify the name and position held (e.g., county administrator, judge, defense attorney, etc.) for
each person involved in the compliance planning process for this delivery system.

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Provide an attachment with the names, license or P#’s, and years of criminal defense experience for all
attorneys the funding units(s) intends to have deliver services as part of the local indigent defense
system.

Standard 1 – Training and Education


Attorneys with fewer than two years of experience practicing criminal defense in Michigan shall
participate in one basic skills acquisition class. Do any of the attorneys included in this plan have fewer
than the required experience and require this training? How many?

Page 5 of 12
All attorneys shall annually complete at least 12 hours of continuing legal education. How many
attorneys require training in this plan?

How will the funding unit(s) ensure that the attorneys satisfy the 12 hours of continuing legal education
during the plan year?

Standard 2 – Initial Interview


When a client is in local custody, counsel shall conduct an initial client intake interview within three
business days after appointment. When a client is not in custody, counsel shall promptly deliver an
introductory communication so that the client may follow-up and schedule a meeting. To be successful,
this requires immediate notification of appointment and client contact information.
How does the plan facilitate immediate attorney assignment and notification of new cases? How will
the system ensure attorneys are completing their interviews within three business days? How will the
initial interview be accomplished?

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This standard further requires a confidential setting be provided for all client interviews.
Does the jail have confidential space for attorney-client interviews? Describe the space available for the
interviews or the plan to provide confidential space.

Does the courthouse have confidential space for attorney-client interviews? Describe the space available
for the interviews or the plan to provide confidential space.

Page 6 of 12
Standard 3 – Experts and Investigators
This standard requires counsel to conduct an independent investigation. When appropriate, counsel
shall request funds to retain an investigator to assist with the client’s defense. Counsel shall request the
assistance of experts where it is reasonably necessary to prepare the defense and rebut the
prosecution’s case. Counsel has a continuing duty to evaluate a case for appropriate defense
investigations or expert assistance.
How will this standard be complied with by the delivery system?

Standard 4 – Counsel At First Appearance and Other Critical Stages of the


Case
Counsel shall be appointed to provide assistance to the defendant as soon as the defendant’s liberty is
subject to restriction by a magistrate or judge. All persons determined to be eligible for indigent criminal

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defense services shall also have appointed counsel at pre-trial proceedings, during plea negotiations and
at other critical stages, whether in court or out of court.
How will this standard be complied with by the delivery system?

Page 7 of 12
COST ANALYSIS
The MIDC Act requires funding unit(s) to provide a cost analysis as part of a request for state funding.
The cost analysis should include all total indigent criminal defense services costs for compliance with
minimum standards and the amount of funds in excess of the local share necessary to comply with the
standards.
Refer to the instructions guide for grant allowances.
Personnel
Include staff, if any, whose work is or will be reasonably and directly related to the indigent defense
function.

Name Position Computation Total

Total

Describe the duties of the positions listed (whether full-time or part-time) the number of hours worked,
and rate of pay. Identify whether the positions will be a new cost as a result of the compliance plan.

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Fringe Benefits Percentage Total
Employer FICA
Retirement
Hospital Insurance
Dental Insurance
Vision Insurance
Unemployment
Worker’s Compensation
Life Insurance
Other
Other
TOTAL

Describe the fringe benefits listed here with the positions above.

Page 8 of 12
Contractual
For assigned counsel, you may group all attorney contracts in one line item. You may list the
computation as “various” to indicate various rates of pay and provide detail below for the pay structure.
List contractors for training programs. Also, list contractors who will be providing construction services
for confidential space, if needed. Confidential space costs should be discussed in detail below but costs
cannot exceed $25,000 per location. Requests exceeding $25,000 will be reviewed with higher due
diligence and considered with accompanying documentation for justification. List contracts for
investigators and experts here.

CONTRACTOR COMPUTATION SERVICES TO BE TOTAL


PROVIDED

TOTAL

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Provide detail for the types of contractors listed above, rates and hours, and services to be provided.
Identify if the contractor will be a new cost or includes cost enhancements for implementation of the
compliance plan.

Travel and Training


Include registrations for continuing legal education hours and training. Travel expenses should adhere
to local funding unit travel policies, not to exceed State of Michigan standardized travel rates.

TYPES OF TRAVEL/TRAINING COMPUTATION TOTAL

TOTAL

Provide detail for the types of travel and training expenses with applicable rates. Identify whether the
expense is new as a result of the compliance plan.

Page 9 of 12
Supplies and Other
Include all other expenses not provided elsewhere in the cost analysis.
ITEM COMPUTATION TOTAL

TOTAL

Provide details for supplies and other expenses. Identify whether the expense is new as a result of the
compliance plan.

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Total Cost Analysis (sum of all expenditure sections) $

The MIDC Act, MCL 780.993(2), allows for an indigent defense system to request reimbursement as part
of the total grant for the cost of developing the compliance plan. If submitting a claim for this expense,
provide an explanation and calculation with details of all plan development costs. Attach a separate
document with the compliance plan submission if needed.

GRANT CALCULATION

TOTAL COST ANALYSIS $


COMPLIANCE PLANNING COSTS + $
LOCAL SHARE - $

COMPLIANCE PLAN GRANT REQUEST $

Page 10 of 12
LOCAL SHARE CALCULATION
The Local Share is defined as an indigent criminal defense system’s average annual direct expenditures for adult
criminal defense services for three fiscal years preceding the creation of the MIDC Act (effective July 1, 2013).
Collections or reimbursements made to the system for partially indigent defendants are applied to the calculation.

Expenditures to be included in the calculation:

• Payments to criminal defense attorneys (contracts, public defenders, appointed systems, hybrid systems)
for providing indigent adult criminal defense services including services for expedited docket programs,
criminal contempt, juveniles waived into adult court, appeals from district to circuit court or eligible
interlocutory appeals to the Court of Appeals
• Payments to experts and investigators
• Other expenses including attorney supplies, travel, or training
Services not included as expenditures:

• Post-sentencing appeals
• Probate, Juvenile Delinquency, Abuse and Neglect cases
• Civil Contempt
• Counsel at lineup (before charges are filed)
Reimbursements:

• Fees paid by or on behalf of a defendant for indigent criminal defense services including payments by the

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Michigan Department of Corrections and grant payments that include indigent defense services as eligible
grant expenditures (i.e. expedited docket programs)

If the actual expenses and reimbursements cannot be calculated as exact, identify that you are providing estimates
and discuss the methodology for determining the estimated local share.

FISCAL YEAR TOTAL EXPENSES REIMBURSMENTS NET EXPENSES

Average of Three
Fiscal Years

Certification: I certify to the best of my knowledge and belief that the calculation of the local share is correct and complete and that all fiscal
details included are direct indigent defense system expenditures and reimbursements in the given fiscal years.

Authorizing Official Name _______________________________ _____________________________

(Printed) (Signature)

Title __________________________________ Date ______________________________

Page 11 of 12
Data Collection
In the future, the MIDC expects to collect data on the following topics related to the first four standards. Data
points include “system-wide data” (pertaining to each indigent defense system), “attorney-level data” (pertaining
to each attorney) and “case-level data” (pertaining to each individual court case). This list is not exhaustive but
offers guidance on the types of data that will be critical to demonstrating standards compliance.

System-Wide Data Points

• Local requirements for training


• Existence of local training options
• Structure of any local administrative bodies responsible for identifying training needs and implementing
training
• Mechanism(s) and timeline for notifying attorneys of new appointments
• Existence of confidential space for attorney-client interviews in holding facilities and courthouses
• Mechanism(s) by which attorneys request investigators or expert witnesses
• Delivery models for provision of counsel at first appearance

Attorney-Level Data Points

• P numbers and contact information


• Total number of annual completed CLE credits
• Location, date and content of all completed training courses

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Case-Level Data Points

• Defendant request for appointed counsel


• Court appointment of counsel and date
• Date of attorney notification of appointment
• Date of initial client interview
• Request for investigator, date granted or denied
• Request for expert witness, date granted or denied
• Presence of counsel at first appearance
• Mechanism by which counsel at first appearance was provided
• Type and amount of bail issued, if any

The MIDC Act, MCL 780.993 (9), requires the state to appropriate funds for the reasonable costs associated with
data required to be collected by the MIDC in excess of the local government’s data costs for other purposes. Costs
associated with data collection are not required to be submitted with this compliance plan submission but will be
addressed at a future date and are remarked here for informational purposes.

Page 12 of 12
Part I, Registration
Step 1: Visit http://portal.michiganidc.gov/.
Step 2: Select Request Access which is located below the Welcome to the MIDC message.

Step 3: Complete the User Registration form. When selecting Position, please choose the
position that best describes your role in the indigent defense system. Once you have

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completed the form, click the Submit button.

Step 4: After submitting the registration form you will receive a confirmation email that
details the user verification process. Once your account has been verified, you will
receive additional instructions for establishing a password.
Part II, Compliance Plans
Step 1: Visit http://portal.michiganidc.gov/.
Step 2: Select Login Here which is located below the Welcome to the MIDC message.

Step 3: Enter your Username (this is your email address) and your Password. Select

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Login.
Step 4: After you have logged in, you will be directed to the User Summary page. From
here click on the My Compliance Plans tab.

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Step 5: From the My Compliance Plans tab select Start New.
Step 6: Once you select Start New a popup will appear. Select the down arrow on the
right-hand side of the selection box. This will give you a list of forms. Select the form
titled Compliance Plans 2017 (Standards 1-4). Next, click the Start button.

Step 7: Complete the Compliance Plans 2017 (Standards 1-4) form. Be sure to upload all
required documents. Once you have completed the form select Submit.

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Exhibit F

From: Jonathan Sacks [mailto:jsacks@michiganidc.gov]


Sent: Wednesday, July 26, 2017 4:28 PM
To: Brown, Malcolm D
Cc: Tanya Grillo
Subject: RE: MIDC meeting

Good afternoon –

1. Yes, “Compliance plan application and instructions” is on the agenda.


2. The Commission meeting has a public comment period. Generally the Commission does not
take questions on individual agenda items.
3. Once draft documents have been approved by the Commission, they will be released to the
public.

Thanks,
Jonathan

From: Brown, Malcolm D [mailto:brownm@oakgov.com]


Sent: Wednesday, July 26, 2017 4:14 PM
To: Jonathan Sacks <jsacks@michiganidc.gov>
Cc: Tanya Grillo <tgrillo@michiganidc.gov>
Subject: MIDC meeting

Mary Ann Jerge forwarded me a copy of your email to her this afternoon. I would like to know if the

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Commission will be discussing the topic of “Compliance Plan and Instructions” on 7-31-17 and whether
the public can ask questions and seek clarification on this issue during the Commission discussions.
Please advise.

Further, I would appreciate it if someone could email a copy of the “Compliance Plan and Instructions”
and the other agenda items so I can review them in advance.

Thank you.

Malcolm

Malcolm D. Brown
Deputy County Executive

Oakland County Executive Office


2100 Pontiac Lake Road, Bldg 41W
Waterford MI 48328
248.858.0485 Office
248.892.1346 Cell
248.452.9215 Fax
brownm@oakgov.com
From: Jonathan Sacks [mailto:jsacks@michiganidc.gov]
Sent: Wednesday, July 26, 2017 2:31 PM
To: Jerge, Mary A <jergem@oakgov.com>
Cc: Tanya Grillo <tgrillo@michiganidc.gov>; Marla McCowan <mmccowan@michiganidc.gov>
Subject: Commission meeting

Hi Mary – Tanya forwarded me your e-mail. The agenda item on “Compliance Plan and Instructions” will
include some approved and disapproved expenses.

Thanks,
Jonathan

Jonathan Sacks
Executive Director
Michigan Indigent Defense Commission
(517) 657-3063
www.michiganidc.gov

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