RECEIVED by MSC 8/24/2018 2:31:53 PM · standards” of criminal defense attorneys. (Ex. A –MSC AO 2016-2 p.1 – 2). The MIDC Act, as amended, moved the MIDC from the judiciary

STATE OF MICHIGAN IN THE SUPREME COURT

_____________________________________________________ Appeal from the Michigan Court of Appeals

Ronayne Krause, P.J., and Gleicher and Letica, J.J. ______________________________________________________

COUNTY OF OAKLAND, Plaintiff-Appellant, Supreme Court No. __________ COA Case No. 341172 -vs- Court of Claims Lower Court No. 17-000216-MZ STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS, AND MICHIGAN INDIGENT DEFENSE COMMISSION Defendants-Appellees, _____________________________________________________________________________/ Keith Lerminiaux (P30190) Oakland County Corporation Counsel Attorney for Plaintiff-Appellant 1200 N Telegraph Rd., Dept. 419 Pontiac, MI 48341-1032 Main: (248) 858-0550 [email protected]

Bridget K. Smith (P71318) Assistant Attorney General Attorney for Defendants-Appellees Licensing and Regulation Division P.O. Box 30758 Lansing, MI 48909 Phone: (517) 373-1146

Mary Ann Jerge (P46574) Oakland County Asst. Corporation Counsel Attorney for Plaintiff-Appellant 1200 N Telegraph Rd., Dept. 419 Pontiac, MI 48341-1032 Main: (248) 858-0550 [email protected]

__________________________________________________________________________/

PLAINTIFF-APPELLANT’S

APPLICATION FOR LEAVE TO APPEAL

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TABLE OF CONTENTS

INDEX TO AUTHORITIES .......................................................................................................... ii

INTRODUCTION AND BASIS OF JURISDICTION ...................................................................1

STATEMENT IDENTIFYING JUDGMENT BEING APPEALED, AND CLAIM OF ERROR ........................................................................................................2

STATEMENT OF QUESTIONS PRESENTED .............................................................................4

STATEMENT OF FACTS ..............................................................................................................6

ARGUMENT .................................................................................................................................12

I. The Michigan Indigent Defense Commission Act (MIDC Act), MCL 780.981 et seq, violates Article 3, §2 of the Michigan Constitution because it transfers constitutional functions of this Court to the executive branch and one hundred thirty-four local funding units without the express delegation of that authority by this Court ..............12

II. MCL 780.1003(1) does not authorize the MIDC from making the arraignment a “critical stage” and creating a right to representation at arraignment ..........................15

III. The MIDC Act bars MIDC Standard 4 from requiring indigency determinations and appointment of counsel occur before arraignments because it conflicts with Michigan Court Rules governing indigency determinations and appointment of counsel ..........19

CONCLUSION AND RELIEF REQUESTED .............................................................................22

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INDEX OF AUTHORITIES

Cases

Attorney General of Michigan v. Michigan Public Service Commission, 243 Mich. App. 487, 491; 625 N.W.2d 16 (2000) ........................................................................................................ 8

Brewer v Williams, 430 U.S. 387, 398-99; 97 S.Ct. 1232, 1239; 51 L.Ed.2d 424 (1977)............ 16 Grievance Administrator v. Lopatin, 462 Mich. 235, 242; 612 N.W.2d 120 (2000) ................... 12 Hoffman v. Otto, 277 Mich. 437, 440/269 N.W. 225 (1936) ........................................................ 14 Hopkins v Parole Bd, 237 Mich App 629,636; 604 NW2d 686 (1999) ....................................... 11 Judicial Attorneys Ass’n v. Michigan, 481 Mich. 291, 586 N.W. 2d 894 (1998).................. passim Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877 (1972) .................................................................. 16 Michigan v Jackson, 475 U.S. 625, 629, n.3; 106 S. Ct. 1404, 1407, n. 3; 89 L.Ed.2d 631 (1986)

................................................................................................................................................... 16 Moran v. Burbine, 475 U.S. 412, 428, 106 S.Ct. 1135 (1986) ..................................................... 16 People v. Antsey, 476 Mich 436 (2006) ........................................................................................ 17 People v. Cameron, 319 Mich. App. 215, 900 N.W.2d 658 (2017) oral argument gtd on the

application ____ Mich____, 907 NW2d 604 (2018) ...................................................... 4, 11, 14 People v. Green, 260 Mich. App 392, 399, 677 N.W. 2d 363 (2004) .......................................... 17 People v. Horton, 98 Mich. App. 62, 72, 296 N.W. 2d 184 (1980) ............................................. 17 People v. Killibrew, 16 Mich. App. 624, 627, 168 N.W. 2d 423 (1969) ...................................... 17 Rothgery v. Gillespie County, 554 U.S. 191, 212-213; 128 S. Ct. 2578, 2592, (2008) .......... 16, 17 Schlossberg v. State Bar Grievance Board, 388 Mich. 389, 395; 200 N. W. 2d 219 (1972) ....... 12 Soap & Detergent Ass’n v. Natural Resources Commission, 415 Mich. 728, 330 N.W. 2d 346

(1982) .......................................................................................................................................... 4 Straus v. Governor, 459 Mich 527, 592 N.W.2d 53 (1999) ........................................................... 4 Turner v United States, 885 F. 3rd 949, 953 (6th Circuit En Banc, 2018) ..................................... 17 UAW v. Green, 498 Mich. 282, 290; 870 N.W.2d 867 (2015) ..................................................... 14 United States v. Gouveia, 467 U.S. 180, 187; 104 S. Ct. 2292 (1984) ......................................... 16

Statutes

MCL 600.1485 .............................................................................................................................. 12 MCL 600.593a .............................................................................................................................. 13 MCL 600.593a (3) – (10) .............................................................................................................. 13 MCL 769.1k .................................................................................................................................. 14 MCL 7691k ................................................................................................................................... 14 MCL 780.1003(1) ............................................................................................................. 3, 4, 6, 15 MCL 780.712 ................................................................................................................................ 12 MCL 780.983(b) ............................................................................................................................. 8 MCL 780.983(f) .............................................................................................................................. 7 MCL 780.983(g) ............................................................................................................................. 6

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MCL 780.983(g)(i) ............................................................................................................. 9, 13, 21 MCL 780.983(h) ............................................................................................................................. 9 MCL 780.985(1) ....................................................................................................................... 6, 21 MCL 780.985(1) and (2) ................................................................................................................. 8 MCL 780.985(1) and (4) ............................................................................................................... 13 MCL 780.985(3) ............................................................................................................. 4, 6, 15, 19 MCL 780.985(4) ....................................................................................................................... 8, 21 MCL 780.989(1) ..................................................................................................................... 13, 21 MCL 780.989(1)(a) ........................................................................................................... 6, 7, 9, 15 MCL 780.989(1)(b)......................................................................................................................... 7 MCL 780.989(1)(f) and (2) ............................................................................................................. 8 MCL 780.991(1)d)(sic) ................................................................................................................. 16 MCL 780.991(2) ........................................................................................................... 8, 13, 15, 21 MCL 780.991(2)(d)....................................................................................................... 3, 11, 18, 19 MCL 780.991(3)(a) ............................................................................................................. 6, 11, 19 MCL 780.991(3)(d)....................................................................................................................... 19 MCL 780.993(2) ............................................................................................................................. 9 MCL 780.993(3) ............................................................................................................................. 9 MCL 780.993(3) and (10) ............................................................................................................. 13 MCL 780.998(3) ........................................................................................................................... 10 MCL780.991(2) .............................................................................................................................. 6

Other Authorities

PA 93 of 2013 ................................................................................................................................. 6

Rules

MCR 6.005(D) .............................................................................................................................. 20 MCR 6.104 ...................................................................................................................................... 4 MCR 6.104 (E)(3) ......................................................................................................................... 17 MCR 6.104(E)(3) .......................................................................................................................... 20 MCR 6.610(D)(2) ......................................................................................................................... 20 MCR 7.203(A)(1) ......................................................................................................................... 11 MCR 7.305(B)(1) ............................................................................................................................ 1 MCR 7.305(B)(2) ............................................................................................................................ 1

Constitutional Provisions

Const 1963, art 3, §2 .............................................................................................................. passim Const 1963, art 6 §1, 4 and 7 .......................................................................................................... 8 Const 1963, art 6, §28 ................................................................................................................... 12 Const 1963, art 6, §5 ................................................................................................................. 9, 14 Const 1963, art 9, §1 ..................................................................................................................... 16

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INTRODUCTION AND BASIS OF JURISDICTION

Oakland County agrees that improving the quality of indigent defense representation in

Michigan is a necessary goal. The legislature, however, cannot erode the separation of powers and

violate the constitution to achieve this goal. This Court ruled that it has the exclusive constitutional

authority to “regulate attorneys” and “establish, implement, and enforce the professional

standards” of criminal defense attorneys. (Ex. A – MSC AO 2016-2 p.1 – 2). The MIDC Act, as

amended, moved the MIDC from the judiciary and placed it within the Department of Licensing

and Regulatory Affairs (LARA). The MIDC Act enables LARA and the MIDC, in the executive

branch, to regulate and set professional standards for criminal defense attorneys. The MIDC Act

requires local funding units to implement and enforce the MIDC Act and minimum standards. As

a result, the executive branch and one hundred thirty-four funding units (cities, villages, townships,

and counties) have taken over exclusive constitutional functions of the judiciary without any

express delegation of that authority by this Court. This is a violation of the separation of powers

under Article 3, §2 of the Michigan Constitution, the most fundamental principle in our system of

government.

Given the significant impact this litigation will have on the criminal justice system and the

trial courts of this state, this Court’s immediate review is essential. Oakland County seeks leave to

appeal for the following reasons: the issue involves a substantial question about the validity of the

MIDC Act (MCR 7.305(B)(1); the issue has significant public interest and the case is one against

the State, LARA and MIDC (MCR 7.305(B)(2)); and the Court of Appeals decision is clearly

erroneous and conflicts with this Court’s decision in Judicial Attorneys Ass’n v. Michigan, 481

Mich. 291, 586 N.W. 2d 894 (1998) (MCR 7.305(B)(5)(b)).

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STATEMENT IDENTIFYING JUDGMENT BEING APPEALED, AND CLAIM OF ERROR

Under MCR 7.303(B)(1), Plaintiff-Appellant Oakland County is appealing from a

published opinion of the Court of Appeals dated July 17, 2018, in Case No. 325802, attached as

Exhibit B. The Court of Appeals affirmed the decision by the Court of Claims (Trial Court),

attached as Exhibit C, that granted Defendants’ motion for summary disposition and dismissed

Oakland County’s claims. The Trial Court and Court of Appeals held that the legislature has the

legal authority to transfer exclusive functions of the judiciary to the executive branch and one

hundred thirty-four funding units without finding any express delegation of authority from the

judiciary to transfer judicial functions. They further held that Article 3, §2 of the 1963 Constitution

is not violated because: 1) LARA and the MIDC do not directly regulate attorneys or directly

enforce the minimum standards on attorneys; and 2) the overlapping of judicial branch functions

with executive branch functions is sufficiently limited and it does not encroach on the

constitutional authority of the judiciary. The Trial Court and Court of Appeals further found that

the MIDC Act gives MIDC the legislative authority to create Standard 4 which requires indigency

determinations and appointment of counsel to be made before the arraignment and creates a right

to representation by counsel at arraignment.

The Court of Appeals and the Trial Court erred in holding that the legislature can delegate

functions of the judiciary to the executive branch (LARA and MIDC), cities, villages, townships

and counties without the express delegation of that authority from the judiciary. The holding

conflicts with the dispositive decisions in Judicial Attorneys Ass’n v. Michigan, 481 Mich. 291,

586 N.W. 2d 894 (1998) (attached as Exhibit D) and People v. Cameron, 319 Mich. App. 215,

900 N.W.2d 658 (2017), oral argument gtd on the application ___ Mich___, 907 NW2d 604 (2018)

(attached as Exhibit E).

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The Court of Appeals also incorrectly held that LARA and the MIDC do not regulate

attorneys or encroach on this Court’s authority. This Court previously ruled that the MIDC

minimum standards do regulate the minimum qualifications, professional standards and duties of

attorneys who represent indigent defendants. (See Ex. A – MSC AO 2016-2). The statutory

“middle-man” enforcement scheme requiring local funding units to implement and enforce the

standards should be disavowed by this Court. Local funding units are encroaching on this Court’s

authority to regulate the professional standard and duties of this class of attorneys without any

express delegation of judicial authority.

The Court of Appeals also incorrectly held that the MIDC Act gave the MIDC the authority

to create a right to counsel at arraignment. First, this holding is contrary to the stated limits of the

MIDC’s authority in MCL 780.1003(1) (“Nothing in this act shall be construed to overrule, expand

or extend, either directly or by analogy, any decisions reached by the United State supreme court

or the supreme court of this state regarding the effective assistance of counsel.”) Second, the Court

of Appeals misinterpreted MCL 780.991(2)(d) as legislative authority for Standard 4. (“The same

defense counsel continuously represents and personally appears at every court appearance

throughout the pendency of the case.”). Finally, Standard 4 requires indigency determinations to

be made before the arraignment, which is not authorized by the MIDC Act and contrary to the

Michigan Court Rules.

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STATEMENT OF QUESTIONS PRESENTED

I. Sharing or transferring powers between branches of government is not constitutionally permissible under Article 3, §2 of the Michigan Constitution of 1963 except in two narrow circumstances: 1) when the constitution itself authorizes the transfer of power;1 and 2) when a branch expressly delegates its own constitutional powers to another branch.2 There is no language in the constitution that authorizes the transfer of the judicial power at issue to the other branches nor has this Court delegated its constitutional authority to regulate the education, training, and professional duties of this class of attorneys to the legislative or executive branch. Does the legislature violate Article 3, §2 of the Michigan Constitution when it transfers constitutional functions of this Court to the executive branch and one hundred thirty-four local funding units without the express delegation of that authority by this Court?

Plaintiff-Appellant Oakland County Answers: Yes Defendants-Appellees Answer: No Trial Court Answer: No Court of Appeals Answer: No

II. The legislature placed limits on the MIDC’s authority by prohibiting the MIDC from creating any standards that would “overrule, expand, or extend, either directly or by analogy, any decisions reach by the United States Supreme Court or the Supreme Court of Michigan regarding the effective assistance of counsel.” MCL 780.1003(1). Longstanding United States Supreme Court and Michigan precedent has held that arraignments are not a critical stage requiring representation at arraignment. MIDC Standard 4 makes the arraignment a “critical stage” of proceedings and creates a right to counsel at arraignment, overruling and expanding longstanding United States and Michigan precedent governing the attachment of right to counsel. Does MCL 780.1003(1) bar the MIDC from making the arraignment a “critical stage” and creating a right to representation of counsel at arraignment?


III. The MIDC Act prohibits the MIDC from interfering with this Court’s constitutional authority over practice and procedure, including the authority to conduct arraignments and make indigency determinations. MCL 780.985(3) and MCL 780.991(3)(a). MCR 6.104(E) and MCR 6.104 require trial courts to make indigency determinations and appoint counsel for representation at post-arraignment proceedings. MIDC Standard 4 requires trial courts

1 Straus v. Governor, 459 Mich 527, 592 N.W.2d 53 (1999) and Soap & Detergent Ass’n v. Natural Resources Commission, 415 Mich. 728, 330 N.W. 2d 346 (1982). 2 Judicial Attorneys Ass’n v. Michigan, 481 Mich. 291, 586 N.W. 2d 894 (1998); and People v. Cameron, 319 Mich. App. 215, 900 N.W.2d 658 (2017) oral argument gtd on the application ____ Mich____, 907 NW2d 604 (2018).

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to make indigency determinations and appoint counsel before the arraignment which conflicts with the Michigan Court Rules. Does the MIDC Act bar the MIDC from requiring indigency determinations and appointment of counsel occur before arraignments?


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STATEMENT OF FACTS

I. Creation of the MIDC

On July 1, 2013, the MIDC was created by the MIDC Act, PA 93 of 2013, MCL 780.981

et seq. The Commission was established within the judicial branch of government.” MCL

780.985(1). “Indigent criminal defense system” was defined as both “the local unit of government

that funds a trial court combined with each and every trial court funded by the local unit of

government.” MCL 780.983(g).

The stated purpose of the MIDC Act was to enable the MIDC to establish standards to

substantially improve the quality of effective assistance of counsel consistent with the United

States and Michigan constitutions. See MCL 780.985(3), MCL 780.989(1)(a) and

MCL780.991(2). The legislature also limited the powers of the MIDC. It expressly restricted the

MIDC from interfering 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.” MCL 780.985(3). The legislature

prohibited the MIDC from interfering with the Michigan Supreme Court’s authority to conduct

arraignments and make indigency determinations under Article VI of the Michigan Constitution.

and MCL 780.991(3)(a). Finally, the legislature expressly restricted the MIDC from creating any

standards that would “overrule, expand, or extend, either directly or by analogy, any decisions

reach by the United States Supreme Court or the Supreme Court of Michigan regarding the

effective assistance of counsel.” MCL 780.1003(1).

On January 4, 2016, the MIDC submitted its initial set of standards to this Court for judicial

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. G – Minimum Standards).

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II. Michigan Supreme Court Administrative Order 2016-2

On June 1, 2016, this Court issued its opinion regarding the constitutionality of the MIDC

Act and the proposed minimum standards. This Court ruled the MIDC standards “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 criminal cases. (See Ex. A, p. 1).

This Court further affirmed its authority to approve the standards and its “ongoing authority to

establish, implement, and impose professional standards” on this class of attorneys. (Ex. A, p.1

and footnote 1). The Court conditionally approved the first set of standards for indigent defense

systems and the proposed amendments to the MIDC Act, subject to multiple constitutional

concerns:

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 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.

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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. A, p. 1-2, emphasis added). This Court also required these 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. A, p. 2, emphasis added). The legislative revisions required by this Court were not enacted

by December 31, 2016, and, as a result, this Court’s approval of the MIDC minimum standards

and the MIDC Act was withdrawn.

III. MIDC Act Amendments

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). LARA is now performing the judicial function of approving the MIDC

minimum standards. MCL 780.985(4).3 Further, the MIDC Act also expressly mandates that the

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

3 Standard 1 (Education and Training), Standard 2 (Initial Interview), Standard 3 (Investigation and Experts), and Standard 4 (Counsel at First Appearance and Other Critical Stages were approved by LARA on May 22 2017. Proposed Standards 5 (Independence of the Judiciary), Standard 6 (Indigent Defense Workloads), Standard 7 (Qualifications and Review) and Standard 8 (Economic Disincentive and Incentives) were submitted to LARA for approval on June 12, 2018.

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780.991(1)(a).4 The term “indigent criminal defense system” was redefined as “the local unit of

government that funds the trial court,” eliminating trial courts from the responsibility to establish,

implement or enforce the minimum standards. MCL 780.983(g)(i). The amended MIDC Act 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 also does not give this Court any

authority to review or approve any future MIDC proposed minimum standards.

The MIDC Act requires one hundred thirty-four cities, villages, townships and counties

that fund trial courts to create the compliance plans and the cost analyses to implement and enforce

the professional standards established by the MIDC on the attorneys who practice indigent criminal

defense 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 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). Within 180 days of receiving funds from

the MIDC, one hundred thirty-four local funding units shall implement and enforce the minimum

standards established by the MIDC the class of attorneys who take indigent criminal defense

appointments. MCL 780.993(10).

4 The MIDC will enforce this legislative provision through a direct regulation. On April 18, 2017, the MIDC approved and published “Standard 5 – Independence of the Judiciary” to enforce MCL 780.991(1)(a). On June 12, 2018, the MIDC conducted its final public hearing on Standards 5 – 8 and closed public comment. Following the hearing, Standards 5 – 8 were submitted to LARA for approval.

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IV. Memo from State Court Administrator Milton Mack

On January 20, 2017, the 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 this Court:

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.

(Ex. F – 01/20/17 SCAO Memo, emphasis added).

The legislative revisions required by this Court were not enacted by December 31, 2016,

and, as a result, this Court’s approval for the MIDC minimum standards was withdrawn.

V. Constitutional Challenges to the MIDC Act and Minimum Standards, and Compliance Plans and Cost Analyses.

On May 22, 2017, LARA approved the MIDC’s first four minimum standards. (See Ex. G

– MIDC 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.

MCL 780.998(3).

On July 18, 2017, pursuant to its rights under MCL 780.985(5) and Const 1963, art 6, §28

of the Michigan Constitution, Oakland County filed a complaint against the State of Michigan,

LARA and the MIDC under the separation of powers doctrine challenging the constitutionality of

the 2017 amendments to the MIDC Act that: 1) removed the MIDC from the judicial branch; 2)

established the MIDC within the executive branch; 3) allowed LARA to approve the MIDC’s

approved minimum standards; and 4) required funding units to regulate the professional standards

and duties of this class of attorneys without any express delegate of judicial authority. Both sides

filed motions for summary disposition and both sides qualified for oral argument.

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

Granting the State of Michigan, LARA and the MIDC Motions for Summary Disposition. On

November 21, 2017, Oakland County filed a Claim of Appeal by Right pursuant to MCR

7.203(A)(1).

VI. Court of Appeals Decision Being Appealed

On July 10, 2018, the parties appeared for oral argument at the Court of Appeals. On July

17, 2018, the Court of Appeals issued its published opinion. Regarding the constitutionality of the

MIDC Act, the Court of Appeals did not make a finding that this Court expressly delegated its

constitutional functions to the executive branch. Despite the fact that the judiciary never expressly

delegated that authority, the Court of Appeals ruled:

…“ ‘if the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible.’ ” People v. Cameron, 319 Mich. App. 215, 900 N.W.2d 658 (2017) oral argument gtd on the application ____ Mich____, 907 NW2d 604 (2018), quoting Hopkins v Parole Bd, 237 Mich App 629,636; 604 NW2d 686 (1999); see also Judicial Attorneys Ass’n, 459 Mich 291, 297, 586 NW2d 635 (1998).

(Ex. B, p. 6). The Court of Appeals held that “any sharing or overlapping of functions required by

the MIDC Act is sufficiently specific and limited that it does not encroach on the constitutional

authority of the judiciary.” The Court of Appeals further held that “the Act does not directly

regulate trial courts or attorneys.” (Ex. B, p. 7).

Finally, the Court of Appeals ruled that the combination of legislative provisions give the

MIDC the authority to create a right to counsel at arraignment:

MCL 780.991(3)(a) provides for a determination of indigency, which will lead to the appointment of counsel “not later than the defendant’s first appearance in court.” (Emphasis added.) In addition, MCL 780.991(2)(d) provides for continuous representation by the same defense counsel “at every court appearance throughout the pendency of the case.”

(Ex. B, p. 10) (emphasis added).

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ARGUMENT

I. The MIDC Act violates Article 3, §2 of the Michigan Constitution because it transfers inherent constitutional functions of this Court to the executive branch and one hundred thirty-four local funding units without the express delegation of that authority by this Court.

This is not a circumstance where different branches of government possess intersecting

responsibilities and some narrowly limited form of sharing of governmental functions between

branches might be constitutional. Never in this state’s history has the legislative or executive

branch shared responsibility with this Court to regulate professional standards for any class of

attorneys. Never in this state’s history have local funding units been mandated to implement and

enforce professional standards on any class of attorneys that practice law in the trial courts of this

state. These functions have always been the constitutionally performed by this Court. 5

This Court alone possesses the exclusive constitutional authority under Article 6, §4-§5 of

the Michigan Constitution to approve, implement and enforce professional standards and duties

on this class of attorneys who provide representation of indigent defendants. (Ex. A, p. 1 - 2 and

footnote 1). See also Schlossberg v. State Bar Grievance 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 Court of Appeals and Trial Court both acknowledged that this Court has the authority under

Article 6, §5 of the Michigan Constitution to regulate attorneys. (Ex. B, p. 6 and Ex. C, p. 6). Local

funding units, on the other hand, have only had the historical responsibility of appropriating public

5 See the Appellate Defender Act, MCL 780.712 (“Appellate Defender Commission is established within the State Court Administrator Office) and MSC Administrative Order 1981 – 7 (Adoption of Michigan Appellate Assigned Counsel System Regulations and Minimum Standards for Indigent Criminal Defense Services.) See also MCL 600.1485 Indigent Civil Legal Assistance, Revised Judicature Act of 1961 (funding “shall be administered by the state court administrator...”).

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dollars for the operations of the trial courts.6 This function does not in any way intersect with the

constitutional function of the judiciary to regulate this class of attorneys.

The MIDC Act, as amended, transfers the function of establishing and approving the

minimum standards for this class of attorneys from this Court to the executive branch (MIDC and

LARA). See MCL 780.985(1) and (4), MCL 780.989(1), and MCL 780.991(2). The MIDC Act

mandates that indigent defense services “shall be independent of the judiciary.” MCL

780.991(1)(a). Finally, the MIDC Act transfers this Court’s function of implementing and

enforcing the minimum standards on this class of attorneys to local funding units. MCL

780.983(g)(i), MCL 780.993(3) and (10). This legislative scheme is constitutionally impermissible

under Article 3, §2 of the Michigan Constitution.

The Court of Appeals and the Trial Court erred in adopting the dissent in Judicial Attorneys

Ass’n v. Michigan, 481 Mich. 291, 586 N.W. 2d 894 (1998). In Judicial Attorneys Ass’n, the

majority held that the legislative branch may take over a constitutional function of the judiciary

only if this Court expressly agrees to it and the delegation of that authority is sufficiently limited.

Without both conditions being met, the Defendants cannot overcome a facial challenge:

The judicial branch may determine on its own authority, for practical reasons, to share with the legislative branch some limited employment-related decision making upon determining that such sharing is in the best interest of the judicial branch and the public as a whole…but the possibility that a court may choose to share decision making in a manner that resembles the legislative scheme of [MCL 600.593a] does not qualify as a set of circumstances that overcomes the facial challenge.

Ex. C – Judicial Attorneys Ass’n, supra at p. 303 (emphasis added). For these reasons, this Court

found the particular section of legislation, MCL 600.593a (3) – (10), unconstitutional on its face.

Id. at p. 304. Concurrent with this decision in a separate order, this Court issued Administrative

Order No. 1998-5 which addressed the various issues the legislature was attempting to address

6 MSC Administrative Order 1997-6.

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(cooperation between trial courts and funding units and managing funding disputes) and affirmed

its exclusive constitutional function of managing court employees. Id. at p. 294.

In a similar ruling, People v. Cameron, the legislature expressly delegated its own

constitutional power to tax to the judiciary. The court analyzed the constitutionality of MCL

769.1k, which expressly allows a trial 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 7691k was a revenue

generating statute. Ex. D – People v. Cameron, 319 Mich. App. 215, 900 N.W.2d 658 (2017) oral

argument gtd on the application ____ Mich____, 907 NW2d 604 (2018). The court acknowledged

that the power to raise revenue “rests exclusively with the Legislature” under Const 1963, art 9,

§1. 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.

Id. at 236.

The Court of Appeals and the Trial Court ignored the dispositive rulings in these two cases:

1) the legislative branch may take over a constitutional function of the judiciary only when this

Court expressly agrees to it; and 2) the legislature only has the authority to delegate its own powers

to the executive branch and local funding units, not those powers of another branch (i.e. the

judiciary). In this case, this Court has not expressly delegated its constitutional authority to regulate

the education, training and professional standards of this class of attorneys to the legislature, the

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executive branch and one hundred thirty-four funding units. On December 31, 2016, this Court

withdrew its approval of the MIDC Minimum Standards and since then has not issued an

Administrative Order allowing the executive branch and funding units to take over its

constitutional function of regulating this class of attorneys. Absent an express delegation of that

authority by this Court, the MIDC cannot overcome a facial challenge.

II. The legislature placed limits on the MIDC’s authority and bars the MIDC from making the arraignment a “critical stage” and creating a right to representation of counsel at arraignment.

The Court of Appeals and the Trial Court erred in finding that the legislature clearly

intended to create a right to counsel at arraignment. Nowhere in the MIDC Act does it clearly state

that an indigent defendant has the right to representation at arraignment. The stated purposed of

the MIDC Act is to improve the quality of representation of indigent defendants consistent with

the constitutional requirements for effective assistance of counsel guaranteed by the United States

and Michigan Constitutions. See MCL 780.985(3), MCL 780.989(1)(a), and MCL 780.991(2).

The legislature was clear, however, that nothing in the MIDC Act should be construed by the

MIDC or this Court to “overrule, expand, or extend … any decisions reached by the United States

Supreme Court or the Supreme Court of this State regarding the effective assistance of counsel.”

MCL 780.1003(1).

MIDC Standard 4 – Counsel at First Appearance and Other Critical Stages – overrules and

expands United States and Michigan precedent regarding when the right to effective assistance of

counsel attaches and what constitutes a “critical stage” of criminal proceedings requiring

representation of counsel. The MIDC mandates that an indigent defendant has the “right to counsel

at every court appearance,” and “representation includes but is not limited to the arraignment on

the complaint and warrant.” (Ex. G – MIDC Standard 4(A) and Comment 1, p. 5) (emphasis

added). The MIDC has erroneously determined that arraignments are a critical stage requiring the

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representation of counsel.7 Standard 4 also requires that indigency determinations and appointment

of counsel be made before the arraignment. Standard 4 proscribes that the appointed arraignment

attorney must meet with a defendant before the arraignment and perform various duties. (See

Argument III). Therefore, Standard 4 overrules precedent in two ways. First, it moves the line of

when the attachment of the right to counsel occurs (from after the arraignment to before the

arraignment). Standard 4 also makes the arraignment a “critical stage” of the proceedings requiring

representation of counsel.

In United States v. Gouveia, the Supreme Court ruled that the Sixth Amendment right to

counsel attaches only after the initiation of criminal proceedings. United States v. Gouveia, 467

U.S. 180, 187; 104 S. Ct. 2292 (1984), citing the plurality opinion in Kirby v. Illinois, 406 U.S.

682, 92 S. Ct. 1877 (1972). This “bright-line” precedent has been affirmed by the Supreme Court

for over four decades. See Moran v. Burbine, 475 U.S. 412, 428, 106 S.Ct. 1135 (1986) (…”the

defendant has the right to the presence of an attorney during any interrogation occurring after the

first formal charging proceeding, the point at which the Sixth Amendment right to counsel

initially attaches.”) (emphasis added). In Rothgery v. Gillespie County, 554 U.S. 191, 212-213;

7 Appellee’s Court of Appeals Response Brief on Appeal at p. 11: “Thus the courts recognize a right to counsel requires, at a minimum, the assistance of counsel at or after the initial stages of the criminal proceedings, including arraignment. Standard 4 is consistent with this interpretation and simply requires that the systems put a process into place to ensure that defendants receive counsel at these critical phases…Standard 4 derives directly from the MIDC Act. MCL 780.991(1)d)(sic).” See also MIDC White Papers-Standard 4 “Counsel at First Appearance and Other Critical Stages” p. 2 (“The United States Supreme Court has repeatedly recognized that the right to counsel is implicated when the defendant’s liberty is jeopardized, which encompasses a criminal defendant’s first appearance in court,” citing Brewer v Williams, 430 U.S. 387, 398-99; 97 S.Ct. 1232, 1239; 51 L.Ed.2d 424 (1977); Michigan v Jackson, 475 U.S. 625, 629, n.3; 106 S. Ct. 1404, 1407, n. 3; 89 L.Ed.2d 631 (1986); Rothgery v Gillespie County, 554 U.S. 191, 194; 128 S.Ct. 2578, 2581-82; 171 L.Ed.2d 366 (2008). Available at http://michiganidc.gov/wp-content/uploads/2017/03/White-Paper-4-Counsel-at-first-appearance-and-other-critical-stages.pdf.

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128 S. Ct. 2578, 2592, (2008), the United States Supreme Court reaffirmed this rule that a

defendant’s first appearance for arraignment “marks the start of adversary judicial proceedings

that trigger attachment of the Sixth Amendment right to counsel.” Rothgery supra at p. 213

(emphasis added). The Rothgery Court stressed the distinction between the trigger of attachment

and what constitutes a “critical stage” entitling a defendant to the presence of counsel:

Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any “critical stage” of the post-attachment proceedings; … Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as the trial itself.

Rothgery supra at p. 211 – 212. Therefore, the appointment and presence of counsel are not

required unless, post-attachment, the defendant is involved in critical stage of the criminal

litigation process. See also Turner v United States, 885 F. 3rd 949, 953 (6th Circuit En Banc, 2018)

(“...the Supreme Court has not extended the Sixth Amendment right to counsel to any point before

the initiation of adversary judicial criminal proceedings…We therefore reaffirm our long-standing

rule that the Sixth Amendment right to counsel does not extend to preindictment plea

negotiations.”)

Michigan case law is consistent with the Supreme Court precedent. The arraignment on

the complaint and warrant is not considered a critical stage of the proceedings in which the right

to counsel attaches. People v. Killibrew, 16 Mich. App. 624, 627, 168 N.W. 2d 423 (1969); People

v. Horton, 98 Mich. App. 62, 72, 296 N.W. 2d 184 (1980); and People v. Green, 260 Mich. App

392, 399, 677 N.W. 2d 363 (2004), overruled on other grounds in People v. Antsey, 476 Mich 436

(2006). Michigan Court Rules are also consistent with the federal and state case law governing the

attachment of the right to counsel. See MCR 6.104 (E)(3) “… the court at the arraignment

must…advise the accused of the right to a lawyer at all subsequent court proceedings, and if

appropriate, appoint a lawyer”; MCR 6.005(A) “Advice of Right. At the arraignment on the

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warrant or complaint, the court must advise the defendant of (1) entitlement to a lawyer’s

assistance at all subsequent court proceedings…”

Furthermore, the Court of Appeals and the Trial Court misinterpreted MCL 780.991(2)(d)

as legislative authority for Standard 4. MCL 780.991(2)(d) provides “The same defense counsel

continuously represents and personally appears at every court appearance throughout the pendency

of the case.” The MIDC’s own published statements repudiates this interpretation:

[Standard 4] 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).

(Ex. G – MIDC Standard 4 Comment 1, p. 5) (emphasis added).

MCL 780.991(2)(d) derives directly from the American Bar Association’s “Ten Principles

of a Public Defense Delivery System” which provides in part: “The same attorney continuously

represents the client until completion of the case. Often referred to as “vertical representation,”

the same attorney should continuously represent the client from initial assignment through the

trial and sentencing.”8 “Vertical representation,” the continuous representation by the same

attorney, is contrasted with “horizontal representation” – a practice whereby one attorney

represents the defendant during one court proceeding before handing off the defendant’s case to

another attorney to cover the next court proceeding. Indigent defendant rights organizations

roundly reject the use of horizontal representation.9 Therefore, it’s clear from the MIDC’s own

8https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf (emphasis added). 9 See the American Bar Association “Criminal Justice Standards” at p. 82 and 83, available at https://www.americanbar.org/content/dam/aba/publications/criminal_justice_standards/providing_defense_services.authcheckdam.pdf. See also the Sixth Amendment Center “Continuous Representation of the defendant by the same attorney – ABA Principle 7” at http://sixthamendment.org/the-right-to-counsel/national-standards-for-providing-the-right-to-counsel/continuous-representation-of-the-defendant-by-the-same-attorney-aba-principle-7/

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published statements that MCL 780.991(2)(d) is designed to prohibit the representational scheme

of horizontal representation; it does not in any way address the creation of a right to counsel at

arraignment.

III. The MIDC Act bars MIDC Standard 4 from requiring indigency determinations and appointment of counsel occur before arraignments because it conflicts with Michigan Court Rules governing indigency determinations and appointment of counsel.

The legislature was also 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 that the MIDC could not interfere with the Michigan Supreme 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 constrained the

MIDC from creating constitutional policies that interfere with the constitutional duties and

business practices of trial courts.

MIDC Standard 4 conflicts with this Court’s rules governing the determination of

indigency, advice of rights, and the appointment of indigent defense counsel. Standard 4 requires

that indigency determinations and appointment of counsel be made before the arraignment.

Standard 4 proscribes that the appointed arraignment attorney must meet with a defendant before

the arraignment and perform the following duties: a) explain the criminal justice process; b) offer

advice on what topics to discuss with the judge; c) gather information to make a “de novo”

argument for pretrial release; and d) determine if the charges could be dismissed or reduced to a

civil infraction. (See Ex. G – Standard 4(A) and Comment 3, p. 5). The MIDC Act requires that

indigent defendants “shall be responsible for applying for indigent defense counsel and for

establishing his or her indigency and eligibility for appointed counsel under this act.” MCL

780.991(3)(d). Indigency determinations, therefore, must occur before this pre-arraignment

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meeting in order for an indigent defendant to be eligible for indigent defense counsel at

arraignment under Standard 4.

Standard 4 interferes with the practice and procedures of trial courts. 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 for 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.

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).

The MIDC Act does not permit the MIDC to change the manner and timing of a trial court’s

indigency determinations and appointment of counsel, or require the judiciary to comply with this

minimum standard. As a result, the legislature did not authorize the MIDC to direct a trial court to

make indigency determinations and appoint counsel before the arraignment as required by

Standard 4.

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CONCLUSION AND RELIEF REQUESTED

Regardless of the important goals the legislature is attempting to achieve, the MIDC Act,

as amended, takes the judicial function of regulating and establishing professional standards for a

class of attorneys and transfers that judicial function to the executive branch. This Court cannot

ignore, as the lower courts have done, that this Court’s inherent authority is being eroded with such

a legislative scheme. Additionally, the legislature did not empower the MIDC to create a new right

to counsel at arraignment, and without clear legislative authority, MIDC Standard 4 is not

authorized by law.

Oakland County asks this Honorable Court to grant this application for leave to appeal,

reverse the decisions of the Court of Appeals and Trial Court, and remand to the Trial Court for

entry of an order consistent with the following:

1. MCL 780.985(1), which establishes the MIDC within LARA, is unconstitutional under

Article 3, §2 of the Michigan Constitution of 1963;

2. MCL 780.989(1) and MCL 780.991(2), which enables the MIDC to regulate the minimum

qualifications, professional standards and duties of defense attorneys who represent

indigent defendants, is unconstitutional under Article 3, §2 of the Michigan Constitution.

3. MCL 780.985(4), which enables LARA to approve professional standards established by

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

4. MCL 780.983(g)(i), MCL 780.993 (3) and (10), which mandates that the cities, villages,

townships and counties that fund trial courts take over the local delivery of indigent defense

services and implement and enforce the MIDC minimum standards, are unconstitutional

under Article 3, §2 of the Michigan Constitution.

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5. MCL 780.991(1)(a), which mandates that the establishment, approval, implementation and

enforcement of the MIDC minimum standards “shall be independent of the judiciary”, is

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

6. The MIDC exceeded its legislative authority and MIDC Standard 4 is not authorized by

law.

Respectfully submitted,

OAKLAND COUNTY CORPORATION COUNSEL Dated: August 24, 2018 /s/ Keith J. Lerminiaux Keith Lerminiaux (P30190) Oakland County Corporation Counsel

Dated: August 24, 2018 /s/ Mary Ann Jerge Mary Ann Jerge (P46574) Oakland County Assistant Corporation Counsel Attorneys for Plaintiff-Appellant 1200 N. Telegraph Rd. Pontiac, MI 48341

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Michigan Supreme Court

Lansing, Michigan

Robert P. Young, Jr., Chief Justice

Stephen J. Markman Brian K. Zahra

Bridget M. McCormack David F. Viviano

Richard H. Bernstein Joan L. Larsen,

Justices

Order June 1, 2016

ADM File No. 2015-27

Administrative Order No. 2016-2

Regulations Governing a System for

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

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).

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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

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

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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.

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.”

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

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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

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).

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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-

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).

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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.

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

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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:

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.

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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

9

Clerk

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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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

OAKLAND COUNTY,

Plaintiff-Appellant,

FOR PUBLICATION July 17, 2018 9:00 a.m.

v No. 341172 Court of Claims

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

LC No. 17-000216-MZ

Defendants-Appellees.

Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

Oakland County objected to the Legislature’s amendment of an act creating the Michigan Indigent Defense Commission (MIDC), giving authority to the Executive Branch, through the Department of Licensing and Regulatory Affairs (LARA), to set standards for attorneys appointed to represent indigent clients. The bulk of the county’s argument revolved around its claim that the MIDC Act and the standards approved by LARA usurped the judiciary’s power to manage and control the court system and the legal profession. Although there is some overlap, the limited sharing of powers envisioned by the act does not offend the separation of powers clause of Const 1963, art 3, § 2 and the county is not otherwise entitled to relief. We therefore affirm the Court of Claims’ summary dismissal of Oakland County’s suit.

I. BACKGROUND

In 2011, the governor signed an executive order establishing an advisory commission on the defense of indigent criminal defendants. Based on the commission’s report, the Legislature passed 2013 PA 93, the MIDC Act. MCL 780.981 et seq. The act created the MIDC and designated it as an autonomous entity within the judicial branch, tasked with proposing minimum standards for providing effective assistance of counsel for indigent criminal defendants.

On January 4, 2016, the MIDC submitted its initial set of four standards to the Michigan Supreme Court for its review. The Supreme Court conditionally approved these standards, “subject to and contingent on legislative revision of the MIDC Act to address provisions that the Court deem[ed] to be of uncertain constitutionality.” AO No. 2016-2, 499 Mich xcviii, xcviii-xcix (2016). Specifically, the Court was concerned that the creation of an “autonomous entity”

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within the judicial branch unconstitutionally usurped its exclusive authority “to exercise general supervisory control” over judicial branch employees. See Const 1963, art 6, §§ 1, 4, and 7. The Court opined that the act’s definition of “indigent criminal defense system” (ICDS), combining the trial court with its nonjudicial local government, and allowing the autonomous 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 “to assure compliance with the commission’s minimum standards, rules, and procedures” “might contain enforcement mechanisms” that usurp the Supreme Court’s control over the court system. Const 1963, art 6, § 4. Moreover, the Court interpreted certain act provisions as “arguably allowing the MIDC to regulate the legal profession, a power granted to the judiciary by Const 1963, art 6, § 5. The Court indicated that its conditional approval would be automatically withdrawn on December 31, 2016 if the Legislature did not act. AO 2016-2, 499 Mich at xcix-c.]

The Legislature thereafter amended the MIDC Act, effective January 4, 2017. 2016 PA 439. The Legislature removed the MIDC from the judicial branch and placed it within LARA, an executive branch agency. MCL 780.985(1); MCL 780.983(b). The Legislature also revised the definition of an ICDS to mean only the local unit of government that funds a trial court (the funding unit), rather than the funding unit and the trial court. MCL 780.983(g). The amendments further provided that the minimum standards enacted under the MIDC Act shall not infringe the Supreme Court’s authority under Const 1963, art 6, §§ 4 and 5. MCL 780.985(3); MCL 780.991(3)(a).

State Court Administrator Milton L. Mack, Jr. subsequently advised the state’s chief judges that the act’s amendments “appear to address issues of uncertain constitutionality that were raised by the Court.” However, Mack asserted, because the legislative amendments did not take effect by December 31, 2016, the Supreme Court’s conditional approval of the MIDC’s proposed standards had expired.

On May 22, 2017, LARA approved the MIDC’s proposed minimum standards for guaranteeing the delivery of indigent criminal defense services (substantively the same standards that had been conditionally approved by the Supreme Court). Standard 1 provided minimum standards for continuing legal education (CLE) and attorney training. Standard 2 set standards for an attorney’s initial client interview. Standard 3 described standards for investigations and for certain expert witness matters. Standard 4 provided minimum standards for defense counsel’s first appearance and subsequent appearances at critical stages in the proceedings. The act required the ICDSs to submit plans to comply with the act and the standards by November 20, 2017, and gave the MIDC 60 days to review the plans.

On June 20, the MIDC published “A Guide for Submission of Compliance Plans, Cost Analyses, and Local Share Calculations” “to assist with the preparation of the cost analysis and compliance planning for delivering indigent criminal defense services.” The Guide provided that the ICDSs must address “each standard individually” and offered “General Guidelines for Compliance Plans.” The MIDC also published a “Compliance Plan for Indigent Standards 1-4” containing further “instructions” and “guidelines” regarding the filing of a plan for compliance with the indigent defense standards.

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II. THE LAWSUIT

Oakland County filed suit, asserting constitutional challenges to the MIDC Act and the approved indigent criminal defense standards. As the trial court summarized the complaint:

Count I alleges that the MIDC Act is “facially unconstitutional” under Const 1963, art 3, § 2 – the separation of powers clause – because “it empowers LARA to usurp the Michigan Supreme Court’s constitutional authority to regulate and enforce minimum qualifications and professional standards for attorneys who represent indigent criminal defendants.” Count II alleges that both the MIDC Act and the approved standards . . . are “facially unconstitutional” under Const 1963, art 6, § 5 because “they usurp the Michigan Supreme Court’s constitutional authority to promulgate rules governing practice and procedure in Michigan Courts.” Count III sounds a similar refrain, with the exception being that it asserts the MIDC Act and the approved standards violate Const 1963, art 6, § 4. Lastly, Count IV alleges that the MIDC promulgated “mandatory rules and procedures” in violation of the [Administrative Procedures Act (APA)]. The complaint sought declaratory relief and a stay of the enforcement of the approved standards.

In lieu of an answer, defendants sought summary disposition. Defendants denied any conflict between the act and standards and the Supreme Court’s constitutional authority. The county asserted that the standards did not regulate the practice and procedure of attorneys and trial courts; rather, the standards regulated the funding units who must pay for ICD services. The act prohibited any minimum standards infringing on the Supreme Court’s authority, defendants continued. Likewise, the MIDC’s minimum standards regulated the funding unit, not the conduct and qualifications of attorneys, the practice of law, or the administration of justice by courts. Defendants argued that the Guide was not subject to the APA because it was not a mandatory rule. Defendants further contended that Oakland County’s challenge to possible future standards was not yet ripe.

In response to defendants’ motion and its own cross-motion for summary disposition, the county contended that the act allows the MIDC to regulate the legal profession, a power granted to the judicial branch, in violation of the separation of powers clause found in Const 1963, art 3, § 2. The act and the LARA-approved minimum standards unconstitutionally allowed an executive branch entity to regulate practice and procedure in the courts, the county asserted. And overall, the act and standards infringed the Supreme Court’s exclusive authority to supervise the administration of justice in all state courts under Const 1963, art 6, § 4. The county opined that Standard 4 impermissibly created a new right to appointed counsel at arraignment. The county alleged conflicts between the Michigan Court Rules and the act and standards regarding indigency determinations and counsel appointments. Specifically, the county complained that the act took indigency determinations away from the courts and placed them with the funding units. The county argued that Standard 3 usurped the judiciary’s authority to set standards for the appointment of expert witnesses. Finally, the county contended that the guidelines promulgated by the MIDC were more than educational and contained compulsory provisions, requiring the MIDC to follow the APA before adopting them.

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In response, defendants added that Standard 4 did not create a new right to counsel at arraignment or conflict with the Michigan Court Rules. Standard 3, which required ICDSs to fund reasonable requests for experts as required by law, likewise did not conflict with the United States Constitution, criminal statutes, or rules of evidence, defendants contended. Overall, defendants emphasized, the MIDC Act was specifically amended to address the Supreme Court’s constitutional concerns.

As noted, the trial court granted summary disposition in defendants’ favor and dismissed Oakland County’s suit. The court rejected the county’s facial challenge to the constitutionality of the MIDC Act. The trial court recognized the Supreme Court’s constitutional authority to regulate the practice of law, the conduct of attorneys, and the conduct of court proceedings. But the court noted that the constitution does not require an absolute separation of powers, allowing some overlapping of functions, responsibilities, and powers between branches. Regarding the county’s claim that the MIDC Act improperly permitted LARA to regulate the conduct and minimum qualifications of attorneys who represent indigent criminal defendants, the court noted that the county merely pointed to the minimum standards. However, the standards implemented by LARA do not aid in determining whether the MIDC Act is facially unconstitutional. The county’s separation of powers argument lacked merit for that reason alone.

Moreover, the court continued, the MIDC Act at most provided for a permissibly limited sharing or overlapping of functions. The act regulated the funding units, rather than trial courts themselves, and thus did not encroach on judicial authority. The act expressly recognized the Supreme Court’s constitutional authority over court practice and procedure. It did not permit the MIDC to require the judiciary’s compliance with the minimum standards and did not attempt to control what happens in court. The MIDC had no authority over who becomes a licensed attorney; the act merely addressed a county-controlled system to ascertain indigency and provide qualified attorneys to indigent defendants. Court precedent, rather than separate MIDC standards, would be used to determine the quality of representation to be required by ICDSs.

The trial court discerned no conflict between the MIDC Act and the Michigan Court Rules. MCL 780.991(3)(a) provided that nothing in the act “shall prevent a court from making a determination of indigency for any purpose consistent with [Const 1963, art 6].” Further, MCL 780.991(3)(a) stated that “[a] trial court may play a role in this [indigency] determination as part of any [ICDCs’s] compliance plan under the direction and supervision of the supreme court. . . .” Accordingly, courts were not prevented from making a determination of indigency for any purpose. In the absence of an inherent conflict between the act and a court rule, the court found it is unnecessary to determine whether judicial authority has been infringed or supplanted.

The trial court next addressed Oakland County’s challenges to the minimum standards. In relation to the county’s contention that Standard 4 improperly required a defendant to be represented at arraignment, the court noted that the federal constitution does not require the appointment of counsel at the arraignment, but nothing prohibits it. A state may afford its citizens greater rights than those required at the federal level. The court determined that the Legislature had done exactly this in MCL 780.991(3)(a), by providing that a determination of indigency shall be made “not later than at the defendant’s first appearance in court.” Hence, there was no conflict between Standard 4 and the pertinent controlling authorities.

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The court found no conflict between Standard 3 and the judiciary’s authority to define and regulate practice and procedure. Standard 3 provided that counsel must request the assistance of experts when reasonably necessary and that reasonable requests must be funded as required by law. Because Standard 3 required funding of experts as required by law, the funding requirement was commensurate with the very authority the county claimed that the MIDC disregarded. Further, Standard 3 did not interfere with the trial court’s gatekeeping function.

The trial court noted that the county had failed to specifically analyze Standards 1 and 2, leaving the court to speculate regarding its argument. In any event, the court found no conflict between those standards and any statutes, court rules, or constitutional principles.

Regarding the county’s argument that the MIDC was then considering granting additional authority to funding units to decide issues regarding the appointment of experts and the determination of indigency, the county had presented no evidence that the MIDC had promulgated standards to implement this strategy. Accordingly, this challenge was not ripe for judicial review. And regarding the county’s claim that the MIDC was required to follow the APA, the court found the minimum standards exempt. The trial court rejected that the MIDC had promulgated compulsory rules and procedures disguised as guidelines, accepting instead that the Guide was explanatory, amounting to an exempt guideline or informational pamphlet.

The county now appeals.

III. FACIAL CONSTITUTIONALITY

The county continues to contend that the MIDC Act is facially unconstitutional because it violates the separation of powers clause of Const 1963, art 3, § 2. The county asserts that the act impermissibly infringes on the constitutional authority of the Michigan Supreme Court by granting an executive branch agency broad authority to regulate the minimum qualifications, professional standards, and duties of attorneys who represent indigent criminal defendants.

We review de novo a trial court’s resolution of a summary disposition motion. Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). We also review de novo “[w]hether a statute is unconstitutional because it violates the separation-of-powers doctrine. . . .” In re Petition of Tuscola Co Treasurer for Foreclosure, 317 Mich App 688, 694; 895 NW2d 569 (2016). Underlying that consideration, we consider de novo the trial court’s interpretation of the challenged statutes. Klooster v City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011).

“Statutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Tuscola Co Treasurer, 317 Mich App at 701 (quotation marks and citations omitted).

We exercise the power to declare a law unconstitutional with extreme caution, and we never exercise it where serious doubt exists with regard to the conflict. Every reasonable presumption or intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity. Therefore, the burden of proving that a statute is unconstitutional rests with the party challenging it . . . . When

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considering a claim that a statute is unconstitutional, the Court does not inquire into the wisdom of the legislation. [In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 307-308; 806 NW2d 683 (2011) (quotation marks, brackets, and citations omitted).]

“To make a successful facial challenge to the constitutionality of a statute, 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, 303; 586 NW2d 635 (1998) (quotation marks, brackets, and citations omitted).

Const 1963, art 3, § 2 provides that “[t]he 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.” It is beyond dispute that our Supreme Court possesses constitutional authority to regulate the practice of law as well as the conduct of attorneys and court proceedings. See Const 1963, art 6, § 4 (“The supreme court shall have general superintending control over all courts . . . .”); Const 1963, art 6, § 5 (“The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state. . . .”). Our Supreme Court “has the power under Const 1963, art 6, § 5, to regulate and discipline the members of the bar of this state[,]” Grievance Administrator v Lopatin, 462 Mich 235, 241; 612 NW2d 120 (2000), and possesses constitutional authority to determine rules of practice and procedure in state courts, McDougall v Schanz, 461 Mich 15, 26-27; 597 NW2d 148 (1999).

It is also recognized, however, that “the separation-of-powers doctrine does not require an absolute separation of the branches of government[.]” People v Cameron, 319 Mich App 215, 232; 900 NW2d 658 (2017), oral argument gtd on the application ___ Mich ___; 907 NW2d 604 (2018).

“While the Constitution provides for three separate branches of government, the boundaries between these branches need not be airtight. In fact, in designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. The true meaning of the separation-of-powers doctrine is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution.” [Id. at 232-233 (brackets omitted), quoting Makowski v Governor, 495 Mich 465, 482; 852 NW2d 61 (2014).]

Therefore, “ ‘[i]f the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible.’ ” Cameron, 319 Mich App at 233, quoting Hopkins v Parole Bd, 237 Mich App 629, 636; 604 NW2d 686 (1999); see also Judicial Attorneys Ass’n, 459 Mich at 297 (“This Court has established that the separation of powers doctrine does not require so strict a separation as to provide no overlap of responsibilities and powers.”).

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It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws. The proper exercise of each of these three great powers of government necessarily includes some ancillary inherent capacity to do things which are normally done by the other departments. [Judicial Attorneys Ass’n, 459 Mich at 297 (quotation marks and citation omitted).]

Here, any sharing or overlapping of functions required by the MIDC Act is sufficiently specific and limited that it does not encroach on the constitutional authority of the judiciary. Importantly, the act does not directly regulate trial courts or attorneys. Rather, the act regulates “indigent criminal defense system[s],” statutorily defined as funding units, rather than trial courts themselves. MCL 780.983(g). In this respect, as the trial court noted, the act “takes care to not encroach on the authority of the judicial branch.” Further, the act repeatedly recognizes the Michigan Supreme Court’s constitutional authority to regulate practice and procedure and to exercise general superintending control of Michigan courts. MCL 780.985(3) provides that the minimum standards proposed by 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 [Const 1963, art 6, § 5].” MCL 780.991(3)(a) further provides:

A trial court may play a role in this [indigency] determination as part of any [ICDS’s] compliance plan under the direction and supervision of the supreme court, consistent with [Const 1963, art 6, § 4]. Nothing in this act shall prevent a court from making a determination of indigency for any purpose consistent with [Const 1963, art 6].

As described by the trial court, the act’s “express recognition of the constitutional role of the judiciary undercuts (but does not preclude) a facial challenge to the constitutionality of the act on separation-of-powers grounds.” See Straus v Governor, 459 Mich 527, 543-544; 592 NW2d 53 (1999) (an executive order’s express inclusion of the requirements of the constitutional provision that the order was said to violate weighed against finding the order unconstitutional).

Reinforcing the conclusion that the MIDC Act does not impermissibly infringe on the constitutional authority of the judiciary is that the act provides for enforcement of the minimum standards only on the ICDSs, not on attorneys or courts. For example, the ICDS, not attorneys or courts, must submit a compliance plan and cost analysis. See MCL 780.993(3). The funding unit, rather than attorneys or courts, is statutorily required to “comply with an approved plan under” the act. MCL 780.997(1). See also MCL 780.995 (providing procedures for resolving a dispute between the MIDC and an ICDS). Further, as the trial court correctly observed, the act contains no provision authorizing the MIDC to force the judiciary to comply with the minimum standards, nor does the act purport to control what happens in court. The MIDC is granted no authority regarding the licensure of attorneys, nor is it afforded any power to censure or sanction attorneys or judges. Instead, the act makes plain that with information provided by, among others, courts, MCL 780.991(1)(a), a county-controlled system is used to determine whether a criminal defendant is indigent and to provide qualified attorneys to represent indigent criminal defendants. See MCL 780.985(3); MCL 780.989(1); MCL 780.991(1). In addition, the act establishes that the quality of representation required of appointed defense attorneys is defined

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by caselaw regarding the effective assistance of counsel, not by statutory or regulatory standards. See MCL 780.983(c); MCL 780.985(3); MCL 780.989(1); MCL 780.1003(1).

The county challenges the language in MCL 780.991(1)(a) stating that “[t]he delivery of [ICD] 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 [ICD] services.” (Emphasis added.) The county contends that this language divests the judiciary of its constitutional authority to establish and enforce minimum standards for delivering effective assistance of counsel to indigent criminal defendants. Again, however, MCL 780.991(3)(a) states in its final sentence that “[n]othing in this act shall prevent a court from making a determination of indigency for any purpose consistent with [Const 1963, art 6].” MCL 780.991(3)(a) also provides that “[a] trial court may play a role in this [indigency] determination as part of any [ICDS’s] compliance plan under the direction and supervision of the supreme court, consistent with [Const 1963, art 6, § 4].” The Legislature has thus recognized the authority of the judicial branch with respect to indigency determinations. Although the exact respective roles of the ICDSs and the trial courts in making indigency determinations is not fully addressed by the parties in this case, it is sufficiently clear from MCL 780.991(3)(a) that the judiciary has not been deprived of its constitutional authority in this area.1 As the MIDC act can be readily harmonized with the judiciary’s powers, the trial court properly rejected Oakland County’s facial attack.

IV. LEGALITY OF MINIMUM STANDARDS

Oakland County also contends that the four minimum standards proposed by the MIDC and approved by LARA violate the separation of powers doctrine and are otherwise not authorized by law.

The county repeatedly points out that the Supreme Court’s conditional approval of the standards was automatically withdrawn on December 31, 2016, because the Legislature’s revisions of the MIDC Act did not take effect by that date. But the expiration of the Supreme 1 The county also refers to the MIDC’s development of a proposed standard to make the management and delivery of ICD services independent of the judiciary. The county acknowledges, however, that LARA has not approved any such standard. A minimum standard proposed by the MIDC must be approved by LARA in order to constitute “a final department action subject to judicial review . . . .” MCL 780.985(5). “The doctrine of ripeness is designed to prevent the adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim is not ripe if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Huntington Woods v Detroit, 279 Mich App 603, 615-616; 761 NW2d 127 (2008) (quotation marks and citation omitted). The county’s challenge is premised on hypothetical future events and is therefore not ripe for judicial review. In addition, it is important to emphasize that actions taken by the MIDC are not pertinent in determining the constitutionality of the act itself. See Judicial Attorneys Ass’n, 459 Mich at 304 (noting that “[t]he constitutionality of an act must rest on the provisions of the act itself[]” rather than on subsequent actions taken by persons or entities that are affected by the act).

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Court’s conditional approval is not dispositive because the MIDC was removed from the judicial branch and placed within the executive branch. See MCL 780.985(1); MCL 780.983(b). It is LARA, rather than the Supreme Court, that now decides whether to approve a minimum standard proposed by the MIDC. See MCL 780.985(4), (5); MCL 780.983(b). It is undisputed that LARA approved the MIDC-proposed standards. Given these developments, the automatic expiration of the Supreme Court’s conditional approval (based on the prior version of the MIDC Act) fails by itself to establish that the minimum standards are not authorized by law.

The county further asserts that the standards “micromanage attorneys who represent indigent defendants, from their education and training to their duties throughout the entire pendency of a case.” But the county fails to flesh out its argument that Standards 1 and 2 are not authorized by law. Instead, the county simply quotes or summarizes portions of each standard and then conclusorily asserts that the standard is unconstitutional under the separation of powers doctrine because it usurps the Supreme Court’s authority. “It is not sufficient for a party simply to announce a position or assert an error and then leave it to up this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (quotation marks and citation omitted). “An appellant’s failure to properly address the merits of his assertion of error constitutes abandonment of the issue.” Houghton ex rel Johnson v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003).

And the trial court correctly concluded that Oakland County failed to establish that Standard 3 not authorized by law. As the court noted, “[t]he purportedly offending section of Standard 3 states that ‘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.’ ” The trial court properly explained:

This standard does not conflict with a trial judge’s discretion to permit the appointment of an expert witness. See MCL 775.15; People v Tanner, 469 Mich 437, 442; 671 NW2d 728 (2003). Rather, the standard notes that experts must be funded “as required by law.” In other words, the request must be funded “as required by” the very authority which Oakland County accuses the MIDC of disregarding. Nor does Standard 3 in any way interfere with the trial court’s gate-keeping functions under MRE 702. There is no evident conflict.

The county’s remaining contentions consist of merely generalized assertions that lack sufficient elaboration. The county again contends that the Supreme Court did not delegate its authority to regulate professional standards and duties of indigent defense counsel to the legislative or executive branches. The county suggests that the obligation to regulate attorneys and courts has been “foisted” onto the funding units, which, according to the county, are being statutorily forced to act as proxies for the MIDC even though the funding units lack constitutional authority to regulate the conduct of attorneys or to implement or enforce the minimum standards. These aspects of the county’s argument, however, challenge the provisions of the act itself and, as already noted, the county’s constitutional challenge lacks merit.

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V. APPOINTED COUNSEL AT ARRAIGNMENTS

The county raises a more specific challenge to Standard 4, asserting that it requires the appointment of counsel at arraignment even though neither the federal nor state constitution demand representation at that stage of criminal proceedings.

Standard 4 provides, in pertinent part:

Counsel shall be assigned as soon as the defendant is determined to be eligible for [ICD] 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. . . .

The county again contends that this standard is not authorized by law and we are again unconvinced. The county asserts that, by enacting Standard 4, “[t]he MIDC and LARA created a new constitutional right to counsel at arraignment . . . .” It is true that the federal constitution does not require the appointment of counsel at arraignment. See People v Green, 260 Mich App 392, 400; 677 NW2d 363 (2004), overruled on other grounds by People v Anstey, 476 Mich 436 (2006); People v Horton, 98 Mich App 62, 72; 296 NW2d 184 (1980). But this does not mean that the appointment of counsel at arraignment is constitutionally prohibited. Absent a state constitutional prohibition, states are free to enact legislative “protections greater than those secured under the United States Constitution . . . .” People v Harris, 499 Mich 332, 338; 885 NW2d 832 (2016). The Legislature did so in the MIDC Act. MCL 780.991(3)(a) provides for a determination of indigency, which will lead to the appointment of counsel, “not later than the defendant’s first appearance in court.” (Emphasis added.) In addition, MCL 780.991(2)(d) provides for continuous representation by the same defense counsel “at every court appearance throughout the pendency of the case.”2 See also MCL 780.991(1)(c) (providing that “[a]ll adults, except those appearing with retained counsel or those who have made an informed waiver of counsel, shall be screened for eligibility under [the MIDC Act], and counsel shall be assigned as soon as an indigent adult is determined to be eligible for [ICD] services.”).

2 MCL 780.991(2)(d) further provides that ICDSs “may exempt ministerial, nonsubstantive tasks, and hearings from” the requirement that the same defense counsel continuously represent and personally appear at every court appearance throughout the case. A comment to Standard 4 states that “an on-duty arraignment attorney” may represent a defendant at an arraignment and that “[t]his 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.”

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The county’s argument that Standard 4 infringes on the Supreme Court’s constitutional authority over practice and procedure also lacks merit. Contrary to the county’s challenge, Standard 4 does not conflict with the Michigan Court Rules. MCR 6.005(B) requires the arraigning court to determine indigency if the defendant requests a lawyer and claims a financial inability to retain a lawyer, and lists factors to consider in determining indigency. MCR 6.104(E)(3) requires the arraigning 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(A)(1) requires the arraigning court to advise the defendant of the right “to a lawyer’s assistance at all subsequent court proceedings,” and § (A)(2) provides “that the court will appoint a lawyer at public expense if the defendant wants one and is financially unable to retain one.” MCR 6.005(D) provides that the court must promptly appoint a lawyer if the defendant is financially unable to retain a lawyer.

The language of MCR 6.005(B), providing for a determination of indigency at the arraignment and listing factors to consider in making the indigency determination, does not expressly conflict with the language of Standard 4, requiring the assignment of counsel as soon as the defendant is deemed eligible for ICD services, that the indigency determination be made and counsel appointed as soon as the defendant’s liberty is subject to restriction, and that representation includes but is not limited to the arraignment. Actual indigency determinations may still be made at the arraignment in conformance with the court rule. It is possible for an on-duty arraignment attorney to represent the defendant but different counsel to be appointed for future proceedings. Court rules providing for advising a defendant concerning his right to counsel at subsequent court proceedings and providing for the prompt appointment of a lawyer likewise do not conflict with the language of Standard 4 providing for representation at the arraignment. Absent an inherent conflict with a court rule, “there is no need to determine whether there was an infringement or supplantation of judicial . . . authority.” Stenzel v Best Buy Co, Inc, 320 Mich App 262, 276; 906 NW2d 801 (2017), lv gtd ___ Mich ___; 909 NW2d 255 (2018); see also Kern v Kern-Koskela, 320 Mich App 212, 222; 905 NW2d 453 (2017) (noting that “this Court should not lightly presume” an intent to create a conflict that calls into question our Supreme “Court’s authority to control practice and procedure in the courts[]”) (quotation marks and citations omitted).3 The county’s challenge thus lacks merit.

VI. ADMINISTRATIVE PROCEDURES ACT

Finally, Oakland County asserts that the MIDC’s “rules and procedures” have no force and effect as the MIDC failed to comply with the promulgation requirements of the APA, MCL 24.201 et seq.

The county acknowledges that the minimum standards established by the MIDC are not subject to the requirements of the APA. See MCL 24.207(r) (excluding from the definition of a “rule” under the APA “[a] minimum standard approved or established under authority granted by the [MIDC Act]”); MCL 780.985(4) (providing that “[a]n approved minimum standard for the 3 In both Stenzel and Kern, this Court addressed a purported conflict between a statute and a court rule, but the principles set forth in those cases apply by analogy here.

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local delivery of [ICD] services within an [ICDS] is not a rule as defined in section 7 of the [APA]”). The county contends, however, that the MIDC has enacted compulsory rules and procedures disguised as guidelines and instructions without complying with the requirements of the APA.

In defining a “rule” subject to the requirements of the APA, the Legislature expressly excluded “[a] form with instructions, an interpretive statement, a guideline, an informational pamphlet, or other material that in itself does not have the force and effect of law but is merely explanatory.” MCL 24.207(h).

The label an agency gives to a directive is not determinative of whether it is a rule or a guideline under the APA. Instead, courts must examine the actual action undertaken by the directive, to see whether the policy being implemented has the effect of being a rule. An agency may not circumvent APA procedural requirements by adopting a guideline in lieu of a rule. [Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich App 563, 582; 609 NW2d 593 (2000), aff’d sub nom Byrne v Michigan, 463 Mich 652 (2001) (quotation marks, brackets, and citations omitted).]

A review of the Guide and the Compliance Plan published by the MIDC reveals that these documents are merely explanatory and do not contain compulsory provisions. In its introductory section, the Guide states, “These guidelines are designed to assist with the preparation of the cost analysis and compliance planning for delivering [ICD] services.” With respect to cost analysis, the Guide states, in relevant part:

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 submission, systems should contact their MIDC Regional Manager, before submissions, to discuss compliance plan costs that pose situations not addressed in guidelines.

The Guide later indicates that “a rate of no more than $25 per credit hour” should be used for annual CLE courses.

The Compliance Plan states that “[t]his document includes instructions and a compliance plan structure for the submission and information on how to calculate your request for state funding.” It continues, “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.” The Compliance Plan indicates that “[r]egistration for CLE hours will be allowed at the rate of $25 per credit hour.” It further provides, “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.” Also, “[e]xpenses for investigators will be considered at hourly rates not to

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exceed $75.” A tiered level of compensation was provided for experts on the basis of education level and area of expertise.

The county mischaracterizes the Guide and the Compliance Plan as creating compulsory provisions. Instead, these documents provide guidance concerning the submission of compliance plans and cost analyses. An emphasis is placed on making the costs reasonable, i.e., not excessive. Although certain amounts are essentially designated as reasonable, it is clear that variations from these amounts will be considered on a case-by-case basis, and ICDSs are encouraged to contact their MIDC regional manager with questions about costs and particular items before submitting their compliance plans and cost analyses. As the trial court noted, “[t]his is indicative of a more flexible, guiding process as is anticipated by MCL 24.207(h), rather than the imposition of ‘rules,’ as that term is used in the APA.” See Kent Co Aeronautics Bd, 239 Mich App at 583 (concluding that certain criteria published by a governmental agency did not create a legal obligation but merely provided advice by way of an explanation and thus did not comprise rules). The APA therefore does not apply.

We affirm.

/s/ Amy Ronayne Krause /s/ Elizabeth L. Gleicher /s/ Anica Letica

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STATE OF MICHIGAN

COURT OF CLAIMS

COUNTY OF OAKLAND,

Plaintiff, OPINION REGARDING PLAINTIFF’S AND DEFENDANTS’ MOTIONS FOR SUMMARY DISPOSITION

v Case No. 17-000216-MZ

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

Hon. Christopher M. Murray

Defendants.

Pending before the Court is defendants’ motion for summary disposition pursuant to

MCR 2.116(C)(4) and (C)(8),1 as well as plaintiff’s competing motion for summary disposition

under MCR 2.116(C)(10).2 For the reasons stated herein, defendants’ motion will be

GRANTED, and plaintiff’s motion will be DENIED. An order will be entered

contemporaneously with this opinion that sets forth the relief awarded to each party. This matter

is being decided without oral argument pursuant to LCR 2.119(A)(5).

I. BACKGROUND

1 The motion also cites MCR 2.116(C)(6), which allows this Court to grant summary disposition if another action has been initiated between the same parties and which involves the same claim. Because defendants have not identified another action or otherwise presented an argument on (C)(6), the Court construes the motion as one brought only under (C)(4) and (C)(8). 2 The motion cites MCR 2.116(C)(9) and (C)(10), but because all of the arguments sound in the nature of (C)(10), the Court construes the motion as being brought only under (C)(10).

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This case involves the constitutionality of the Michigan Indigent Defense Commission

Act (MIDC Act), MCL 780.981 et seq., as well as certain minimum standards established by the

Michigan Indigent Defense Commission (MIDC). On or about January 4, 2016, the MIDC,

which at the time was an autonomous entity created within the judicial branch of state

government, presented to the Michigan Supreme Court for the latter’s approval a set of standards

related to the delivery of effective assistance of counsel for indigent criminal defendants. In an

administrative order—Michigan Supreme Court Administrative Order 2016-2—the Supreme

Court conditionally approved the proposed standards, while at the same time identifying three

potential constitutional areas of concern in the statute. The administrative order urged the

Legislature to address the constitutional concerns by December 31, 2016, or the conditional

approval would be “automatically withdrawn.”

The Legislature amended the MIDC Act in 2016 PA 439, and the amendments took

effect on January 4, 2017. Pertinent to the instant case, the amendments effectuated by 2016 PA

439 removed the MIDC from the judicial branch and placed it within the Department of

Licensing and Regulatory Affairs, which is an agency under the executive branch of government.

See MCL 780.985(1). In addition, 2016 PA 439 changed the statutory definition of “indigent

criminal defense system,” to mean the local unit of government that funded a trial court, and not

the local unit of government and the trial court. See MCL 780.983(g). And, pertinent to this

case, the amendments to the MIDC Act specified that any minimum standards enacted under the

act were not to infringe on the authority of the Michigan Supreme Court, as conferred by Const

1963, art 6, § 5, and Const 1963 art 6, § 4. See MCL 780.985(3); MCL 780.991(3)(a).

On January 20, 2017, State Court Administrator Milton Mack, Jr. wrote a memo to the

state’s chief judges in which he opined that the amendments to the MIDC Act “appear to address

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issues of uncertain constitutionality that were raised by the Court.” Nevertheless, the memo

noted that the Supreme Court’s “conditional approval” expired on December 31, 2016, which

was before the amendments to the statute took effect.

On May 22, 2017, the MIDC implemented four “minimum standards” as set forth in

MCL 780.985(3) and MCL 780.991(1), for guaranteeing the delivery of indigent criminal

defense services. Standard 1 sets forth a minimum standard for the “Education and Training of

Defense Counsel,” while standard 2 concerns a minimum standard for defense counsel’s initial

client interview. Standard 3 contains a minimum standard for investigations by defense counsel

and for certain matters pertaining to expert witnesses, while standard 4 refers to a minimum

standard for defense counsel’s first appearance and subsequent appearances at critical stages in

the proceedings. The standards include the admonition that indigent criminal defense systems

were to submit compliance plans with regard to the standards by November 20, 2017. See MCL

780.993(3) (specifying that, within 180 days of the approval of a standard, “each indigent

criminal defense system shall submit a plan to the MIDC . . .” and such plan “shall specifically

address how the minimum standards established by the MIDC under this act shall be met and

shall include a cost analysis.”).3

Thereafter, the MIDC published a document entitled “A Guide for Submission of

Compliance Plans, Cost Analyses, and Local Share” (“Guide”). According the Guide, the

guidelines were “designed to assist with the preparation of the cost analysis and compliance

planning for delivering indigent criminal defense services.” Among other requirements, the

3 The MIDC is charged with approving or disapproving the plans within 60 days of submission. MCL 780.993(4).

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Guide specifies that any compliance plan was to address “each standard individually,” meaning

the four standards implemented by the MIDC in May 2017. The Guide encourages indigent

criminal defense systems to “contact their MIDC Regional Manager” with questions about

funding and compliance. Also within the Guide is a section entitled “General Guidelines for

Compliance Plans,” which will be discussed within the context of Oakland County’s

Administrative Procedures Act (APA) challenge. The MIDC published additional “Instructions”

and “Guidelines” for compliance plans in July 2017.

Oakland County filed a complaint in this Court4 on July 25, 2017, in which it raised a

number of constitutional challenges. Count I alleges that the MIDC Act is “facially

unconstitutional” under Const 1963, art 3, § 2—the separation of powers clause—because “it

empowers LARA to usurp the Michigan Supreme Court’s constitutional authority to regulate and

enforce minimum qualifications and professional standards for attorneys who represent indigent

criminal defendants.” Count II alleges that both the MIDC Act and the approved standards—

Standards 1-4—are “facially unconstitutional” under Const 1963, art 6, § 5 because “they usurp

the Michigan Supreme Court’s constitutional authority to promulgate rules governing practice

and procedure in Michigan Courts.” Count III sounds a similar refrain, with the exception being

that it asserts the MIDC Act and the approved standards violate Const 1963, art 6, § 4. Lastly,

Count IV alleges that the MIDC promulgated “mandatory rules and procedures” in violation of

the APA. The complaint sought declaratory relief and a stay of the enforcement of the approved

standards.

4 See MCL 780.985(5).

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II. ANALYSIS

A. STATUTORY INTERPRETATION AND CONSTITUTIONAL CONCERNS

The issues raised require an examination of certain provisions of the MIDC Act. When

interpreting a statute, a court is to begin with the statute’s plain language. This Court is to

assume that the Legislature intended the plain and ordinary meaning expressed therein and must

construe the statute as written. Burise v Pontiac, 282 Mich App 646, 650-651; 766 NW2d 311

(2009). Nothing may be read into an unambiguous statute. Mich Ed Ass’n v Secretary of State

(On Rehearing), 489 Mich 194, 217-218; 801 NW2d 35 (2011). Moreover, when construing a

statute, a court must read the pertinent language in context, keeping in mind the purpose of the

statute. CG Automation & Fixture, Inc v Autoform, Inc, 291 Mich App 333, 338; 804 NW2d 781

(2011).

As noted, Oakland County has raised a facial challenge to the constitutionality of the

MIDC Act. A party presenting a constitutional challenge to legislation must overcome a heavy

burden. Judicial Attorneys Ass’n v State, 459 Mich 291, 303; 586 NW2d 894 (1998). Statutes

are presumed constitutional, and this Court “has a duty to construe a statute as constitutional

unless its unconstitutionality is clearly apparent.” In re Forfeiture of 2000 GMC Denali and

Contents, 316 Mich App 562, 569; 892 NW2d 388 (2016) (citation, quotation marks, and

alteration omitted). Indeed, “[t]he court’s power to declare a law unconstitutional is exercised

with extreme caution and is not exercised where serious doubt exists regarding the conflict.”

AFSCME Council 25 v State Employees’ Retirement Sys, 294 Mich App 1, 9; 818 NW2d 337

(2011). And, “[t]o make a successful facial challenge to the constitutionality of a statute, the

challenger must establish that no set of circumstances exists under which the [a]ct would be

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valid.” Judicial Attorneys Ass’n, 459 Mich at 303 (citation and quotation marks omitted;

alteration in original).

The Court will address Oakland County’s constitutional challenges to the MIDC Act

separately from its challenges to the Standards implemented by the MIDC.

B. CHALLENGES TO THE MIDC ACT

1. FACIAL CONSTITUTIONAL CHALLENGE—SEPARATION OF POWERS

Turning first to the constitutionality of the MIDC Act itself, Oakland County argues that

the act violates the separation of powers doctrine by permitting the executive branch, through the

MIDC, to regulate the legal profession by establishing certain minimum qualifications and

professional standards for attorneys who represent indigent criminal defendants. This power,

Oakland County argues, sits solely with the judicial branch.

This state’s guiding document makes clear that “[t]he 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.” Const 1963, art 3, § 2. There is also no dispute that the Supreme Court

possesses explicit constitutional authority to regulate the practice of law and conduct of

attorneys, as well as the conduct of court proceedings. See, e.g., Const 1963, art 6, §§ 4-5;

Grievance Admin v Lopatin, 462 Mich 235, 241; 612 NW2d 120 (2000); McDougall v Schanz,

461 Mich 15, 26-27; 597 NW2d 148 (1999).

That principle, however, does not end the inquiry, as our appellate courts have never

interpreted the separation of powers doctrine to require “an absolute separation of powers.”

People v Cameron, 319 Mich App 215, 235; 900 NW2d 658 (2017). See also Judicial Attorneys

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Ass’n, 459 Mich at 297 (“This Court has established that the separation of powers doctrine does

not require so strict a separation as to provide no overlap of responsibilities and powers.”).

Rather, there can be an overlapping of functions, responsibilities, and powers between branches.

Judicial Attorneys Ass’n, 459 Mich at 297. In this sense, Michigan has adopted the view of

James Madison, expressed in The Federalist No. 47, that “where the whole power of one

department is exercised by the same hands which possess the whole power of another

department, the fundamental principles of a free constitution are subverted.” Soap & Detergent

Ass’n v Natural Resources Comm, 415 Mich 728, 752; 330 NW2d 346 (1982), quoting The

Federalist No. 47 (J. Madison). Stated differently, “[i]f the grant of authority to one branch is

limited and specific and does not create encroachment or aggrandizement of one branch at the

expense of the other, a sharing of power may be constitutionally permissible.” Cameron, 319

Mich App at 233 (citation and quotation marks omitted). Indeed,

It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws. The proper exercise of each of these three great powers of government necessarily includes some ancillary inherent capacity to do things which are normally done by the other departments.” [Judicial Attorneys Ass’n, 459 Mich at 297 (citation and quotation marks omitted).]

The Court first turns to Oakland County’s assertion that the MIDC Act offends the

separation of powers doctrine because it permits LARA to regulate the conduct and minimum

qualifications of attorneys who represent indigent criminal defendants.5 The first “critical

question[ ]” in a separation-of-powers analysis is whether the judicial branch’s powers in

5 Oakland County has submitted affidavits detailing the high costs that could be incurred in complying with certain Standards. But for the Court to delve into whether the act makes good policy in that regard would itself run afoul of the separation of powers clause. King v State, 488 Mich 208, 233; 793 NW2d 673 (2010)(YOUNG, J., dissenting).

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regulating the practice of law and conduct of attorneys and courts include the authority granted

to LARA in the MIDC Act. Judicial Attorneys Ass’n, 459 Mich at 297. Oakland County’s

argument on this point is essentially limited to pointing to the minimum standards that were

implemented by the MIDC. However, the standards implemented by LARA do not aid in

determining whether the MIDC Act is unconstitutional on its face. Indeed, “[t]he

constitutionality of an act must rest on the provisions of the act itself,” and not on subsequent

actions taken by those affected by the act. Id. at 304. For this reason alone the Court finds

Oakland’s separation-of-powers argument to be lacking.

Moreover, even examining the contents of the MIDC Act, and assuming an overlap of

powers occasioned by the act, the pertinent question becomes whether the legislatively

prescribed functions in the MIDC Act are “sufficiently limited and specific so as not to encroach

on the exercise of the constitutional responsibilities of the judicial branch.” Id. at 297. It is so

limited, because what the MIDC Act accomplishes, at most, is a permissibly limited sharing or

“overlapping” of functions.

At the outset, the MIDC Act refers to and imposes burdens on “indigent criminal defense

systems,” which the act defines as a local unit of government that funds a trial court, not the trial

court itself. MCL 780.983(g). Hence, the statute takes care to not encroach on the authority of

the judicial branch. Moreover, the non-encroaching nature of the statute is buttressed by the idea

that the statute expressly recognizes, on more than one occasion, the very constitutional authority

Oakland County claims it flaunts. That is, the statute expressly mandates that any minimum

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standards6 imposed by 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 of 1963.” MCL 780.985(3). See also 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.”). The express recognition of the constitutional role of the

judiciary undercuts (but does not preclude) a facial challenge to the constitutionality of the act on

separation-of-powers grounds. See Strauss v Governor, 459 Mich 526, 543-544; 592 NW2d 53

(1999) (finding, albeit in the context of an executive order, that the express inclusion of the

constitutional provision the order was said to violate weighed against finding the order was

unconstitutional).

Furthermore, the enforcement provisions of the MIDC Act demonstrate that the overlap

of powers at issue is consistent with constitutional principles. To that end, the act only permits

the MIDC to ensure that an “indigent criminal defense system,” i.e., the “local unit of

government,” complies with the standards. See MCL 780.993; MCL 780.995. The act does not

permit the MIDC to force the judiciary to comply with the minimum standards. Nor does the

legislature attempt to control what occurs in court. MCL 780.985(3). And, of course, the MIDC

will have no say on who becomes a licensed attorney in the first instance. Instead, the act’s

provisions address the creation of a county-controlled system to determine (with information

provided by, amongst others, the courts7) an individual’s indigency status and to provide

qualified attorneys to represent indigent defendants See Id; MCL 780.989(1); MCL 6 Again, the standards themselves are not pertinent to a facial challenge to the constitutionality of the MIDC Act. 7 MCL 780.991(1)(a).

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780.991(1)(a)&(c). Importantly, the representation to be required by the indigent criminal

defense systems must be consistent with the decisions of Michigan appellate courts and the

United States Supreme Court on ineffective assistance of counsel. MCL 780.983(c); MCL

780.985(3); MCL 780.989(1)(a); MCL 780.1003(1). Thus, at least with respect to the quality of

representation provided by counsel under this new system, the standards are set by the state and

federal constitutions as interpreted by the courts, not through separate MIDC standards.

In sum, keeping in mind that the Court is to presume a statute’s constitutionality unless

the contrary is readily apparent, and in light of the narrow overlap of authority effectuated by the

MIDC Act, the Court rejects Oakland County’s separation of powers argument as it pertain to the

act.

2. WHETHER THE MIDC ACT’S PROVISIONS CONFLICT WITH THE COURT RULES

Oakland County next argues that the MIDC Act has “multiple provisions that address

indigency determinations” that “directly conflict with the Michigan Court Rules.” With such a

conflict, Oakland County argues, the judicially created court rules must prevail over the rules

promulgated by the executive pursuant to statute. Notably, the county points out that MCL

780.991(1)(a) specifies that the “delivery” of indigent defense services “shall be independent of

the judiciary” and that preliminary inquiries and the determination of indigency “shall be made

as determined by the indigent criminal defense system . . .” MCL 780.991(3)(a). According to

Oakland County, the MIDC Act’s provisions on indigency determinations conflict with MCR

6.005(B) and (D), which give trial court judges responsibility for determining indigency. Such

conflict, the county argues, demonstrates a usurpation of the judiciary’s authority, rendering this

provision of the act unenforceable.

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In general, legislative enactments regarding rules of practice may not conflict with the

court rules. Stenzel v Best Buy Co, Inc, __ Mich App __, __; __ NW2d __ (2017) (Docket No.

328804); slip op at 6. Courts are not to “lightly presume that the Legislature intended a conflict,

calling into question” the Supreme Court’s “authority to control practice and procedure in the

courts.” Kern v Kern-Koskela, __ Mich App __, __; __ NW2d __ (2017) (Docket No. 330183);

slip op at 4 (citations omitted). “Absent an inherent conflict between a court rule and a statute,

there is no need to determine whether there was an infringement or supplantation of judicial or

legislative authority.” Stenzel, __ Mich App at __; slip op at 6.

The Court sees no conflict between these provisions. The last sentence of MCL

780.991(3)(a) provides that “[n]othing 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.” Without the preceding sentence, the Court would tend to agree regarding a potential

conflict between what the statute permits and what the court rules provide. However, this final

sentence in § 991(3)(a) serves to dissipate any potential conflict between MCL 780.991(3)(a) and

MCR 6.005(B) and (D). So too does MCL 780.991(3(a), which provides that a “trial court may

play a role in this [indigency] determination as part of any indigent criminal defense system’s

compliance plan under the direction and supervision of the supreme court . . . .” In short,

whatever role an indigent criminal defense system is to play in indigency determinations under

the MIDC Act, that role cannot, as plainly stated in the act itself, “prevent a court from making a

determination of indigency for any purpose . . .” consistent with the Court’s constitutional

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authority.8 And without an inherent conflict between the statute and court rule, “there is no need

to determine whether there was an infringement or supplantation of judicial . . . authority.”

Stenzel, __ Mich App at __; slip op at 6.

C. CHALLENGES TO MINIMUM STANDARDS

Oakland County also alleges that Standards 3 and 4 “conflict with several sections of the

Michigan Court Rules and interfere with court practice and procedure in judicial proceedings.”

MCL 780.985(5) permits an “indigent criminal defense system” to petition this Court to review

whether the approved minimum standards are “authorized by law.” The statute further declares

that this Court’s review of the standards is to be in the manner of “judicial review [described]

under section 28 of article VI of the state constitution of 1963 . . .” MCL 780.985(5). This

means that the Court is tasked with determining whether the standards are “in violation of statute

[or constitution], in excess of the statutory authority or jurisdiction of the agency, made upon

unlawful procedures resulting in material prejudice, or [are] arbitrary and capricious[.]”

Northwestern Nat’l Cas Co v Ins Comm’r, 231 Mich App 483, 488; 586 NW2d 563 (1998).

1. STANDARD 4

Standard 4 is entitled “Counsel at First Appearance and other Critical Stages,” and

requires that counsel “shall be assigned as soon as the defendant is determined to be eligible for

indigent criminal defense services.” Moreover, it provides that a defendant is to be represented

at arraignment on the complaint and warrant. Oakland County argues that because an indigent

criminal defendant does not have a constitutional right to be represented by counsel at 8 The issues presented by the parties do not give the Court occasion to review what that role might look like. And, as articulated below, the Court will not entertain arguments regarding potential, yet-to-be-enacted standards by MIDC.

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arraignment, and because the court rules do not require representation by counsel at arraignment,

Standard 4 is invalid.

Although Oakland County has correctly pointed out controlling authority that the federal

constitution does not require the appointment of counsel at arraignment, see Rothgery v Gillespie

Co, Tex, 554 US 191, 213; 128 SCt 2578; 171 L Ed 2d 366 (2008), People v Green, 260 Mich

App 392, 400; 677 NW2d 363 (2004), and People v Horton, 98 Mich App 62, 72; 296 NW2d

184 (1980), it has not identified any constitutional authority prohibiting the appointment of

counsel at an arraignment. And fully recognizing that the constitutional right to counsel does not

apply to arraignments does not answer the pertinent question: can a state afford an indigent

defendant greater rights than those guaranteed by the constitution? The answer is, of course, that

a state can (absent a state constitutional prohibition) afford its citizens rights additional to those

protected by the federal constitution, but not fewer. People v Harris, 499 Mich 332, 337; 885

NW2d 832 (2016) (recognizing that states, by legislative enactment, “may provide protections

greater than those secured under the United States Constitution . . .”). And that appears to be

what the legislature granted under MCL 780.991(3)(a), by providing that a determination of

indigency—which will lead to the appointment of counsel—shall occur “not later than the

defendant’s first appearance in court.” MCL 780.991(3)(a). Though not required to do so by

either the state or federal constitution, the Michigan Legislature was free to afford indigent

defendants the right (if deemed appropriate by the MIDC) to counsel at the arraignment.

In sum, on the authorities presented to the Court, there is no conflict between what

Standard 4 requires and what the pertinent controlling authorities allow. As such, the Court

cannot conclude that Standard 4 is not authorized by law and need not consider whether there

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was “an infringement or supplantation of judicial . . . authority.” Stenzel, __ Mich App at __;

slip op at 6.

2. STANDARD 3

Oakland County next argues that Standard 3 conflicts with the judiciary’s authority to

define and regulate practice and procedure. The purportedly offending section of Standard 3

states that “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.” This standard does not conflict with a trial judge’s discretion to permit the

appointment of an expert witness. See MCL 775.15; People v Tanner, 469 Mich 437, 442; 671

NW2d 728 (2003). Rather, the standard notes that experts must be funded “as required by law.”

In other words, the request must be funded “as required by” the very authority which Oakland

County accuses the MIDC of disregarding. Nor does Standard 3 in any way interfere with the

trial court’s gate-keeping functions under MRE 702. There is no evident conflict.9

3. FUTURE STANDARDS

Lastly, Oakland County notes that in certain publications the MIDC has contemplated

granting additional authority to local funding units to decide issues concerning the appointment

9 It is not clear whether Oakland County has directly asserted a challenge to Standards 1 and 2. The county’s brief lists the standards’ requirements and conclusory states that defendants “cannot credibly maintain that LARA and MIDC do not regulate the duties and qualifications of indigent criminal defense counsel given the plain language of the minimum standards.” However, they do not specifically analyze Standards 1 and 2 in the same manner they have briefed Standards 3 and 4, and simply listing the standards’ requirements with a conclusory assertion leaves this Court to speculate regarding the county’s argument. Moreover, on the Court’s review of the standards, the standards, like Standards 3 and 4, do not conflict with any statutes, court rules, or constitutional principles. Accordingly, the Court declines to find that Standards 1 and 2 were not authorized by law. See MCL 780.985(5).

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of experts and in regard to indigency determinations. The county has not, however, provided any

evidence that the MIDC has implemented this strategy by promulgating standards. Thus, at this

point, the county’s concerns are purely hypothetical and are not ripe for decision. See Lansing

Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372 n 20; 792 NW2d 686 (2010). Moreover,

this Court’s review under the MIDC Act does not extend to potential, yet-to-be-enacted

standards. See MCL 780.985(5) (specifying that only an approved minimum standard “is

considered a final department action subject to judicial review . . .”).10

D. COMPLIANCE WITH THE APA

Lastly, Oakland County argues that the MIDC has violated the APA by promulgating

mandatory rules and procedures without complying with the APA’s requirements. As

acknowledged by the county, the minimum standards established by the MIDC are expressly

exempt from the APA’s requirements. MCL 24.207(r); MCL 780.985(4). However, the county

argues that this exemption did not give the MIDC wholesale authorization to ignore the APA.

According to the county, MIDC’s “Guide for Submission of Compliance Plans, Cost Analyses,

and Local Share Calculations,” contain compulsory provisions which amount to “rules” under

the APA.11

10 Related to the issues raised above, Oakland County has asked this Court to declare, in the event of a future conflict between minimum standards and court rules, that the court rules are controlling. Such a request with regard to future, unknown standards is not ripe for review. See Lansing Sch Ed Ass’n, 487 Mich at 372 n 20. 11 To the extent Oakland County’s claim rests on MIDC’s subsequently rescinded interpretation of the term “local share” as is used in MCL 780.983(h), by the county’s own admission, the decision with regard to this interpretation was rescinded.

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Oakland County’s position is meritless. First, the legislative determination that the

standards are not rules for purposes of the APA does indeed end the issue as it concerns the

standards. See Mich Ed Ass’n, 489 Mich at 217-218 (courts are to enforce statutes as they are

written). Second, the Court disagrees with Oakland County’s assertion that the MIDC has been

promulgating “compulsory rules and procedures disguised as ‘guidelines’ without adhering to

the APA.” In defining a “rule” subject to the APA’s procedures, the APA expressly exempts

from the definition of “rule”: “A form with instructions, an interpretive statement, a guideline, an

informational pamphlet, or other material that in itself does not have the force and effect of law

but is merely explanatory.” MCL 24.207(h). Here, the challenged “Guide” is, on its face, not a

“rule” as the APA has defined that term. However, the label assigned to the Guide by the MIDC

is not the determining factor in this Court’s analysis of whether the “Guide” is, in fact, a rule.

Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich App 563, 582; 609 NW2d 593 (2000).

Rather, the Court looks to the substance of the MIDC Guide.

Having reviewed the Guide, the Court agrees with defendants that the Guide is merely

explanatory and does not purport to create “compulsory provisions,” as Oakland County alleges.

The introduction of the document specifies that it is only intended to “assist with the preparation

of the cost analysis and compliance planning for delivering indigent criminal defense services.”

The document then encourages indigent criminal defense systems to come up with their own

“cost effective models” for delivering services. Regarding costs—which makes up the primary

component of the County’s argument—the document specifies that costs “cannot be excessive”

(emphasis omitted). Then, the document goes on to specify guidelines for the types of

compliance plans and particular details in those plans that the MIDC will approve. The Guide

does not impose any obligations on indigent criminal defense systems, nor does it expand on

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Standards 1-4. Rather, the Guide simply advises indigent criminal defense systems what types of

plans and which types of costs will be deemed reasonable or not “excessive.” To that end, pages

6-7 of the Guide specifically encourage indigent criminal defense systems to contact “their

MIDC Regional Manager” with questions about costs and particular items prior to submission.

This is indicative of a more flexible, guiding process as is anticipated by MCL 24.207(h), rather

than the imposition of “rules,” as that term is used in the APA. See Kent Co Aeronautics Bd, 239

Mich App at 583 (explaining that the challenged interpretive document was not a “rule” under

the APA because the criteria described in the interpretive document “do not create any legal

obligation on behalf of the township to propose a site, nor do they enlarge, abridge, or in any

way affect the rights of the public. The criteria simply advise a local governmental unit, by way

of explanation . . .”).

For these reasons, the Court will enter an order granting defendants’ motion for summary

disposition, and denying plaintiff’s motion for summary disposition.

Dated: November 3, 2017 ________________________________ Christopher M. Murray Judge, Court of Claims

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STATE OF MICHIGAN

COURT OF CLAIMS

OAKLAND COUNTY v STATE OF MICHIGAN, et al,

Case No. 17-000216-MZ Hon. Christopher M. Murray

ORDER

At a session of said Court held in the City of Detroit, County of Wayne, State of Michigan.

The Court, having issued an Opinion on the parties’ competing motions for summary disposition, and otherwise being fully advised in the premises;

IT IS HEREBY ORDERED that, for the reasons stated in the accompanying Opinion, defendants’ motion for summary disposition is GRANTED pursuant to MCR 2.116(C)(8) and (C)(10) and plaintiff’s motion for the same is DENIED.

IT IS SO ORDERED.

This order resolves the last pending claim and closes the case.

Dated: November 3, 2017 ________________________________ Christopher M. Murray Judge, Court of Claims

November 3, 2017

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Judicial Attys. Ass'n v. State

Supreme Court of Michigan

October 7, 1998, Argued ; December 28, 1998, Decided ; December 28, 1998, Filed

Nos. 111782, 111785

Reporter459 Mich. 291 *; 1998 Mich. LEXIS 3240 **; 586 N.W.2d 894

JUDICIAL ATTORNEYS ASSOCIATION, Plaintiffs-Appellees, and GOVERNMENT ADMINISTRATORS ASSOCIATION, Plaintiffs-Appellees and Cross-Appellants, v STATE OF MICHIGAN, Governor and Attorney General, Defendants-Appellants, and COUNTY OF WAYNE and WAYNE COUNTY BOARD OF COMMISSIONERS, Defendants-Cross Plaintiffs.

Subsequent History: [**1] Updated Copy December 14, 1999.

Prior History: Wayne Circuit Court, Robert J. Colombo, Jr., J. Court of Appeals, O'CONNELL and SMOLENSKI, JJ., and M. J. Kelly, P.J. Court of Appeals, MCDONALD and FITZGERALD, JJ. and MARKMAN, P.J. (Docket No. 201852). 228 Mich App 386; 579 N.W.2d 378 (1998).

Disposition: Affirmed.

Counsel: Lee R. Franklin [Detroit, MI], for plaintiff-appellee Judicial Attorneys Association.

Gregory, Moore, Jeakle, Heinen, Ellison, Brooks & Lane, P.C. (by Mark L. Heinen) [Detroit, MI], for plaintiff-appellee/cross-appellant Governmental Administrators Association.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Gary P. Gordon and Katherine C. Galvin, Assistant Attorneys General [Lansing, MI], for defendants-appellants and cross-appellees State of Michigan, Governor John Engler, and Attorney General Frank J. Kelley.

Jennifer M. Granholm, Wayne County Corporation Counsel, and Edward Ewell, Jr., Deputy Corporation Counsel [Detroit, MI]; and Fink Zausmer, P.C. (by David H. Fink, Gary K. August, and Amy M. Sitner) [Detroit, MI], for defendants/cross-plaintiffs/appellants, [**2] Wayne County and Wayne County Board of Commissioners.

Judges: BEFORE THE ENTIRE BENCH. Chief Justice Conrad L. Mallett, Jr., Justices James H. Brickley, Michael F. Cavanagh, Patricia J. Boyle, Elizabeth A. Weaver, Marilyn Kelly, Clifford W. Taylor. BRICKLEY, CAVANAGH,BOYLE, WEAVER, and KELLY, JJ., concurred with MALLETT, C.J. TAYLOR, J. (dissenting).

Opinion by: Conrad L. Mallett, Jr.

Opinion

[*293] MALLETT, C.J.

In the case of Judicial Attorneys Ass'n v State of Michigan, we granted leave to determine whether a provision of 1996 PA 374, MCL 600.593a; MSA 27A.593a, violates the Separation of Powers Clause of Const 1963, art 3, § 2, and the rights [*294] of members of the plaintiffs under the public employee relations act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq. 457 Mich. 883, 586 N.W.2d 925 (1998).

We hold that subsections 593a(3)-(10) and the parallel provisions of §§ 591, 837, 8271, 8273 and 8274 of 1996 PA 374, concerning employees of the circuit, probate, and district courts, are unconstitutional. This finding makes the

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issue concerning the PERA moot. Under separate order we enact Administrative Order [**3] No. 1998-5, concerning chief judge responsibilities and local intergovernmental relations.

I

1996 PA 374 provided that, effective October 1, 1996, a local judicial council 1 created pursuant to the act or Wayne County became the employer of the employees of the Third Judicial Circuit and Recorder's Courts, 2 rather than the State Judicial Council abolished by the act.

(3) If the Wayne county judicial council is not created pursuant to subsection (1), the employees of the former state judicial council serving in the circuit court in the third judicial circuit or in the recorder's court of the city of Detroit shall become employees of the county [**4] of Wayne, effective October 1, 1996.

(4) The employer designated under subsection (2) or (3), in concurrence with the chief judge of the appropriate court, has the following authority:

[*295] (a) To establish personnel policies and procedures, including, but not limited to, policies and procedures relating to compensation, fringe benefits, pensions, holidays, leave, work schedules, discipline, grievances, personnel records, probation, and hiring and termination practices.

(b) To make and enter into collective bargaining agreements with representatives of those employees.

(5) If the employer designated under subsection (2) or (3) and the appropriate chief judge are not able to concur on the exercise of their authority as to any matter described in subsection (4)(a), that authority shall be exercised by either the employer or the chief judge as follows:

(a) The employer has the authority to establish policies and procedures relating to compensation, fringe benefits, pensions, holidays, and leave.

(b) The chief judge has authority to establish policies and procedures relating to work schedules, discipline, grievances, personnel records, probation, hiring and termination practices, and [**5] other personnel matters not included in subdivision (a).

On September 26, 1996, the plaintiffs--two unions whose members performed work in the Third Circuit and Recorder's Courts--brought this action challenging the change of employer. The trial court issued a preliminary injunction on September 30, 1996, enjoining the change. On October 9, 1996, the Court of Appeals granted the defendants' motion for a stay of the preliminary injunction. The trial court subsequently issued a permanent injunction against enforcement of § 593a to the extent that it made Wayne County a coemployer of plaintiffs' members, but stayed the injunction pending a final decision by the appellate courts.

On March 3, 1998 the Court of Appeals upheld the trial court's finding that § 593a violated the separation [*296] of powers doctrine. 3 228 Mich. App. 386; 579 N.W.2d 378 (1998). The majority held that the circuit court, as a division of Michigan's one court of justice, "possesses the inherent and exclusive power to manage all its operations," id. at 413, that the court's inherent administrative powers include the authority to manage all personnel matters affecting

1 The option to create a judicial council as employer expired on October 1, 1996.

2 Pursuant to Act 374, Recorder's Court ceased to operate October 1, 1997, because the Third Circuit Court acquired its jurisdiction and functions. As of the date of the issuance of this opinion, federal challenges to the abolition of Recorder's Court are pending.

3 Judge Markman dissented in part, stating that because no controversy had yet arisen concerning § 593a between the Third Circuit or its chief judge and Wayne County, the judiciary's authority had not been undermined and that the dispute was not ripe for adjudication. On the PERA question, Judge Markman found the county and the court to be coemployers under § 593a, and agreed with the trial court that § 593a did not violate the PERA because it did not impair plaintiffs' members' ability to collectively bargain over the terms and conditions of their employment.

459 Mich. 291, *294; 1998 Mich. LEXIS 3240, **2R

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employees [**6] working within its branch, and that a "usurpation of all the court's employees can be viewed as [a] . . . dangerous incursion into the judicial realm" by the legislative branch. 4 Id. at 416. We affirm.

II

Const 1963, art 3, § 2 provides:

The powers of government [**7] 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.

This Court has established that the separation of powers doctrine does not require so strict a separation as to provide no overlap of responsibilities and powers. In re Southard, 298 Mich. 75, 83; 298 N.W. 457 (1941); People v Piasecki, 333 Mich. 122, 146-148; 52 [*297] N.W.2d 626 (1952); Soap & Detergent Ass'n v Natural Resources Comm, 415 Mich. 728, 752; 330 N.W.2d 346 (1982). If the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible. Soap & Detergent Ass'n, 415 Mich. at 752-753; Mistretta v United States, 488 U.S. 361, 382; 109 S. Ct. 647; 102 L. Ed. 2d 714 (1989). For purposes of determining the constitutionality of § 593a, the critical questions are whether the judicial branch's powers necessarily [**8] include the administrative function of controlling those who work within the judicial branch, and, if so, whether the legislatively prescribed sharing of personnel functions delineated in § 593a is sufficiently limited and specific so as not to encroach on the exercise of the constitutional responsibilities of the judicial branch.

That the management of the employees of the judicial branch falls within the constitutional authority and responsibility of the judicial branch is well established. The power of each branch of government within its separate sphere necessarily includes managerial administrative authority to carry out its operations. As this Court explained in Wayne Circuit Judges v Wayne Co, 383 Mich. 10; 172 N.W.2d 436 (1969), superseded by 386 Mich. 1; 190 N.W.2d 228 (1971) (On Rehearing):

It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws. The proper exercise of each of these three great powers of government necessarily includes some ancillary inherent capacity to do things which are normally done by the other departments.

[*298] [**9] Thus, both the legislative department and the judicial department have certain housekeeping chores which are prerequisite to the exercise of legislative and judicial power. And, to accomplish those housekeeping chores both departments have inherently a measure of administrative authority not unlike that primarily and exclusively vested in the executive department. [383 Mich. at 20-21.]

The application of this principle to state-paid employees within each branch of government has long been uncontroversial. The Legislature provides the funding for all state employees, but state employees working for the Legislature are unquestionably under the exclusive control of the Legislature, those working for the executive branch, under the exclusive control of the executive branch, and those working for the Supreme Court and the Court of Appeals, under the exclusive control of the judicial branch.

What has proved to be so obvious in the context of state employees, however, has been more elusive in the context of Michigan's trial courts, whose employees have not always enjoyed the same clarity of status as their state-paid

4 Because the majority found § 593a to be unconstitutional, it reasoned that the claim that the provision violated the public employees relations act was moot.

459 Mich. 291, *296; 1998 Mich. LEXIS 3240, **5R

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counterparts. 5 The explanation for this phenomenon surely [**10] lies in the complicated and diverse history of our trial courts.

There is no public environment in the state of Michigan more complex than the trial court component of the state's "one court of justice." Under art 6, § 4 of the state constitution, the Michigan Supreme Court has general supervisory control of the courts and is constitutionally responsible for the efficient [*299] and effective operation of all courts within the state court system, but the day-to-day operation of the state's trial courts is in the hands of the chief judges of each court. The chief judges in turn are accountable to the Supreme Court and to the public for the operation of [**11] their courts, and are dependent on over 150 separate local governmental units for the bulk of the operational funding for their courts. Const 1963, art 6, §§ 1, 4. MCR 8.110. Grand Traverse Co v Michigan, 450 Mich. 457, 475; 538 N.W.2d 1 (1995). As a further complication, the jurisdiction of some courts is spread across several counties or municipalities, which must share funding responsibilities. Despite the complications of the trial court environment, the case law, taken as a whole, has come to strongly affirm that the fundamental and ultimate responsibility for all aspects of court administration, including operations and personnel matters within the trial courts, resides within the inherent authority of the judicial branch. 6

[**12]

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 [*300] 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 co-ordinate branch of the government. It is only in such a manner that the independence of the judiciary can be preserved. The courts cannot be hampered or limited in the discharge of their functions by either of the other 2 branches of government. To remove bailiffs and other court personnel for cause is an inherent power of the judiciary. [Gray v Clerk of Common Pleas Court, 366 Mich. 588, 595; 115 N.W.2d 411 (1962).]

See also Judges of the 74th Judicial Dist v Bay Co, 385 Mich. 710, 727; 190 N.W.2d 219 (1971), in which this Court found the authority of the district court to set the salaries of its employees to be "wholly consonant with [**13] the constitutionally prescribed functioning of the courts under inherent powers"; Livingston Co v Livingston Circuit Judge, 393 Mich. 265; 225 N.W.2d 352 (1975), in which this Court relied on the inherent powers of the judiciary in holding that the circuit court was the employer of court personnel for purposes of salary negotiations; and Ottawa Co Controller v Ottawa Probate Judge, 156 Mich. App. 594; 401 N.W.2d 869 (1986), which affirmed the authority of the probate court to set the salaries of its employees as long as the court's total budget remains within the total budget appropriation set by the county board.

Defendants argue that the employment functions delegated to the trial court funding units by § 593a are sufficiently specific and limited so as to survive constitutional scrutiny. The Court of Appeals emphatically rejected that assertion.

5 In 1971, Justice Thomas E. Brennan, in a separate opinion in Wayne Co Judges, 386 Mich. 1 at 17, 190 N.W.2d 228, observed that cases from as late as the mid-1950's "cast light on the 'hands off' attitude of former times, in which it was thought that the administration of the courts was a thing distinct and apart from the administration of justice."

6 Over the years, some trial court judges have arrived at agreements under which the trial courts have allowed their funding units to negotiate on their behalf directly with court employees. In those jurisdictions, typically, the terms and conditions of the court employees vary little if at all from those of the funding unit employees. In contrast, in many jurisdictions the funding units have not desired to play any role concerning the terms and conditions of trial court employment. And in a few jurisdictions, from time to time, courts and their funding units have found themselves at loggerheads over employment issues. It is from this category that our case law concerning separation of powers and court employment arises.

459 Mich. 291, *298; 1998 Mich. LEXIS 3240, **9R

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Subsection 593a(3) is an outright takeover of the court's employees, making them employees of the county. From a separation of powers standpoint, it is troubling that persons [*301] working solely within one branch be regarded as employees of another branch of government. Employing and managing [**14] personnel to carry out day-to-day operations is one of the most basic administrative functions of any branch of government. This Court has already suggested that, pursuant to the doctrine of separation of powers, one branch of government should not be subject to oversight by another branch in personnel matters. In Beadling v Governor, 106 Mich. App. 530, 536; 308 N.W.2d 269 (1981), this Court held that it would be a violation of the separation of powers doctrine "if the executive branch was allowed to judge the competency of a discharged employee of the legislative branch and order reinstatement." There, this Court observed that the employee at issue in Beadling held a position that "was one of some sensitivity within the legislative process" and that if executive oversight were allowed it would "allow a dangerous incursion into the legislative realm." Id. Surely a usurpation of all the court's employees can be viewed as an equally dangerous incursion into the judicial realm. Accordingly, we view subsection 593a(3) as a violation of the Separation of Powers Clause. [228 Mich. App. at 415-416.]

We agree with plaintiffs and the Court of Appeals [**15] majority that subsection 593a(3) is not a sufficiently limited exercise by one branch of another branch's power, and therefore that it impermissibly interferes with the judiciary's inherent authority to manage its internal operations. Our reasoning applies not only to subsection 593a(3), but also to subsections 593a(4)-(10) which elaborate on subsection 593a(3). 7 Subsection 593a(3) unequivocally designates the funding unit as the employer of personnel working in the court. [*302] Subsections 593a(4)(a)-(b) gives to the funding unit exclusive authority to establish policies and procedures relating to compensation, fringe benefits, pensions, holidays, and leave of court personnel, and to make and enter into collective bargaining agreements with representatives of those employees.

[**16] Although subsection 593a(5) preserves a limited role for the chief judge of the trial court in those aspects of decision making concerning trial court personnel that the Legislature considered noneconomic, this limited return to the judicial branch of authority over employees is not sufficient to overcome the provision's constitutional flaw: that the fundamental employer role of judicial branch employees is to be exercised by the local legislative branch rather than by the judicial branch itself.

The very framework of subsections 593a(3)-(10), in which the employer function is delegated to the legislative branch and then specific, limited subfunctions returned to the judicial branch, refutes defendant's argument that the encroachment on the judicial branch's powers is specific and limited. The judicial branch is constitutionally accountable for the operation of the courts and for those who provide court services, and must therefore be the employer of court employees. It is, of course, well established, both as a practical and a constitutional matter, that in the exercise of its employment responsibilities the judiciary must take into account the limited dollars appropriated [**17] to it by the legislative branch in the exercise of the Legislature's own constitutional responsibility. See, for example, Bay Co, 385 Mich. at 726-727, and Ottawa Co, supra at 603. The practical necessity for the judiciary to reach accommodation with those who [*303] fund the courts on an annual basis, however, cannot, as a constitutional matter, be used as an excuse to diminish the judiciary's essential authority over its own personnel.

III

In making the determination that § 593a violates the separation of powers doctrine, we are cognizant of the heavy burden that challenges to the constitutionality of a statute must overcome. To make a successful facial challenge to the constitutionality of a statute, the challenger "'must establish that no set of circumstances exists under which the act would be valid.'" Council of Organizations & Others for Ed About Parochiaid, Inc v Governor, 455 Mich. 557, 568, 602; 566 N.W.2d 208 (1997), quoting United States v Salerno, 481 U.S. 739, 745; 107 S. Ct. 2095; 95 L. Ed. 2d 697 (1987). We believe that there is indeed no set of circumstances under [**18] which the statutory assumption

7 Our reasoning also applies to the identical, parallel provisions found in §§ 591, 837, 8271, 8273, and 8274 of 1996 PA 374, concerning employees of the circuit, probate, and district courts. Because we have concluded that subsections 593a(3)-(10) are unconstitutional, the issue of the rights of members of the plaintiffs under the public employee relations act is moot.

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by the legislative branch of the function of employer and the exercise of primary decision making concerning employment of judicial branch employees by the legislative branch does not violate the separation of powers doctrine. The judicial branch may determine on its own authority, for practical reasons, to share with the legislative branch some limited employment-related decision making upon determining that such sharing is in the best interests of the judicial branch and the public as a whole. Such cooperation has in fact occurred and has proven to be beneficial in many jurisdictions, but the possibility that a court may choose to share decision making in a manner that resembles the scheme of § 593a does not qualify as a set of circumstances that overcomes the facial challenge. [*304] The constitutionality of an act must rest on the provisions of the act itself, and not on the compensating actions of those affected by the act. Rassner v Federal Collateral Society, Inc, 299 Mich. 206, 215; 300 N.W. 45 (1941).

For all these reasons, we hold that subsections 593a(3)-(10) and the parallel provisions of §§ 591, 837, 8271, 8273 [**19] and 8274 of 1996 PA 374 concerning employees of the circuit, probate and district courts are unconstitutional and must be stricken. We find that the stricken provisions are severable from Act 374, and see no need to strike down the entire act.

IV

The doctrine of separation of powers is a shield for each of the branches of government to use for the protection of our form of government and for the people it serves; it is not a sword to be used by one branch against another. Security for the balance of powers "consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others." Hamilton, The Federalist, No. 51 (New York: New York Heritage Press, 1945), p 347.

Separation of powers does not preclude what has proven to be the rule rather than the exception in the operation of Michigan's trial courts: cooperation, communication, and accommodation between trial courts and their funding units in their exercise of shared responsibility to the public. The philosophical underpinnings of the separation of powers doctrine, Michigan case law, and common sense all point toward such cooperation. [**20] In Employees & Judge of the Second Judicial Dist Court v Hillsdale Co, 423 Mich. 705, 717; [*305] 378 N.W.2d 744 (1985), this Court observed that "an indispensable ingredient of the concept of coequal branches of government is that 'each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches.' United States v Will, 449 U.S. 200, 228; 101 S. Ct. 471; 66 L. Ed. 2d 392 (1980)."

Lack of respect, cooperation, and communication between chief judges and representatives of local funding units can produce barriers to optimal court operations, and can lead to costly litigation.

V

In the wake of the enactment of Act 374 and the filing of the plaintiffs' complaint, employment issues concerning all the state's 241 trial courts were in an increasingly unstable condition. To help resolve the immediate operational difficulties created by the situation in general, on August 18, 1997, the Supreme Court issued Administrative Order No. 1997-6. 8 The order outlined specific terms of conduct by trial court chief judges designed to maximize cooperation and communication [**21] with funding units over employment issues, within the constraints of the judiciary's fundamental constitutional obligations. In that order, we noted that with the judiciary's responsibility to determine what is reasonable and necessary to administer the courts comes not only the necessity of prudent management, but also the burden of informing, listening to, and attempting to persuade those within the [*306] legislative branch whose own duties include funding the courts.

In enacting the scheme of divided employment responsibilities that today we find to be a violation of separation of powers, we believe that the Legislature was responding to legitimate complaints by some counties that the trial court chief judges in their counties had failed to carry this burden. The clear implication of their testimony was that

8 The order by its explicit terms did not address the employment questions raised by this case for employees of the Third Circuit, Recorder's Court, and the 36th District Court.

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by excluding the counties from [**22] any involvement in or understanding of the courts' employment decisions, the courts had thwarted the counties' ability to carry out their own primary constitutional responsibilities and had unnecessarily frustrated relations with the funding units' own employees, to the detriment of the public. We believe that the testimony offered by counties before the House and Senate Judiciary Committees in the deliberations that led up to the enactment of Act 374 demonstrated the need for some chief judges to be more heedful of the practical needs of the counties in the exercise of their overall funding responsibilities for county and court operations. Therefore, under separate order today, we affirm and extend current provisions of Administrative Order No. 1997-6 that we believe will serve the present, immediate need for structuring more positive relations between chief judges and their funding units in the interest of promoting greater understanding, cooperation, and better service to the public.

Affirmed.

BRICKLEY, CAVANAGH, BOYLE, WEAVER, and KELLY, JJ., concurred with MALLETT, C.J.

Dissent by: Clifford W. Taylor

Dissent

[*307] TAYLOR, J. (dissenting).

I respectfully dissent because I am [**23] convinced that 1996 PA 374 does not, on its face, violate the Separation of Powers Clause.

In this appeal, plaintiffs Judicial Attorneys Association and Government Administrators Association challenge certain provisions of 1996 PA 374, a court reorganization act, on the basis that they violate Const 1963, art 3, § 2 (the Separation of Powers Clause) and the Public Employees Relations Act (PERA), MCL 423.201 et seq.; MSA 17.455(1) et seq. I conclude that Act 374 does not facially violate the Separation of Powers Clause. However, in the interest of providing guidance to avoid potential separation of powers concerns in implementing Act 374, I agree with the Court's issuance of an administrative order that affirms and extends provisions of Administrative Order No. 1997-6. I also conclude that Act 374 does not violate the PERA. I would accordingly reverse the Court of Appeals decision.

According to its title, Act 374 is designed to revise the organization and jurisdiction of the courts. For purposes of this appeal, the relevant feature of Act 374 is that it creates a coemployment relationship between local funding units [**24] and the courts. As recognized in Administrative Order No. 1997-6, both the local funding unit and the chief judge have legitimate constitutional responsibilities regarding the operation of the courts. Act 374 is apparently the Legislature's attempt to delineate a workable, cooperative relationship between these entities and to include both in the [*308] collective bargaining process. Specifically, § 593a provides in pertinent part: 1

(3) If the Wayne county judicial council is not created pursuant to subsection (1), the employees of the former state judicial council serving in the circuit court in the third judicial circuit or in the recorder's court of the city of Detroit shall become employees of the county of Wayne, effective October 1, 1996.

(4) The employer designated under subsection (2) or (3), in concurrence with the chief judge of the appropriate court, has the following authority:

1 I note that other provisions of Act 374, not raised here, similarly provide for a coemployment relationship between the funding unit and court with respect to other courts. See §§ 591, 8271, and 8274.

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(a) To establish personnel policies and procedures, including, but not limited to, policies and procedures relating to compensation, fringe benefits, pensions, holidays, leave, work schedules, discipline, grievances, personnel records, probation, and hiring and termination practices.

(b) To make [**25] and enter into collective bargaining agreements with representatives of those employees.

(5) If the employer designated under subsection (2) or (3) and the appropriate chief judge are not able to concur on the exercise of their authority as to any matter described in subsection (4)(a), that authority shall be exercised by either the employer or the chief judge as follows:

(a) The employer has the authority to establish policies and procedures relating to compensation, fringe benefits, pensions, holidays, and leave.

(b) The chief judge has authority to establish policies and procedures relating to work schedules, discipline, grievances, personnel records, probation, hiring and termination practices, and other personnel matters not included in subdivision (a).

Plaintiffs, bargaining representatives for [**26] employees serving in the Third Circuit Court and Recorder's [*309] Court, filed the present action challenging these provisions of Act 374. The trial court held that Act 374 violated the Separation of Powers Clause and issued a permanent injunction against enforcement of § 593a to the extent that it made Wayne County a coemployer of plaintiffs' members, but stayed this injunction pending a final decision by the appellate courts. The trial court also held that these provisions did not violate the PERA. The Court of Appeals majority affirmed the trial court's finding that § 593a violated the separation of powers and concluded that the PERA challenge was accordingly moot. 228 Mich. App. 386; 579 N.W.2d 378 (1998). In a dissent, Judge Markman concluded that the separation of powers challenge was not ripe, that a facial challenge on separation of powers grounds failed, and that the coemployment relationship did not violate the PERA. We granted leave to determine whether these provisions of Act 374 violate the Separation of Powers Clause or the PERA. 2 457 Mich. 883, 586 N.W.2d 925 (1998).

[**27] A. The Separation of Powers Challenge

In Council of Organizations & Others for Ed About Parochiaid, Inc v Governor, 455 Mich. 557, 568-569; 566 N.W.2d 208 (1997), we set forth the applicable standard of review for facial constitutionality challenges:

The party challenging the facial constitutionality of an act "must establish that no set of circumstances exists under which the act would be valid. The fact that the . . . act [*310] might operate unconstitutionally under some conceivable set of circumstances is insufficient . . . ." [United States v Salerno, 481 U.S. 739, 745; 107 S. Ct. 2095; 95 L. Ed. 2d 697 (1987).] "If any state of facts reasonably can be conceived that would sustain [a legislative act], the existence of the state of facts at the time the law was enacted must be assumed." 16 Am Jur 2d, Constitutional Law, § 218, p 642.

Clearly, a party challenging the facial constitutionality of a statute faces an extremely rigorous standard.

Further, "it is one of the oldest and most well-established tenets of our jurisprudence that legislative enactments enjoy a presumption of constitutionality. [**28] " Gora v City of Ferndale, 456 Mich. 704, 719; 576 N.W.2d 141 (1998). Courts are required to give the "presumption of constitutionality to a statute and construe it as constitutional unless the contrary clearly appears." Caterpillar, Inc v Dep't of Treasury, 440 Mich. 400, 413; 488 N.W.2d 182 (1992).

2 We also granted leave to consider whether Act 374 violates the Headlee Amendment, Const 1963, art 9, § 29. Our decision regarding that issue is separately reported in Docket Nos. 111785, 111786.

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The Separation of Powers Clause is set forth in Const 1963, art 3, § 2:

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 Court of Appeals majority correctly summarized relevant case law regarding the separation of powers at 409-410:

This separation of powers among the three branches of government is designed to preserve the independence of each branch. In re 1976 PA 267, 400 Mich. 660, 662; 255 N.W.2d 635 (1977). [*311]

In [Employees & Judge of the Second Judicial Dist Court v Hillsdale Co, 423 Mich. 705, 717; 378 N.W.2d 744 (1985)], the Michigan Supreme Court explained:

"Each branch [**29] of government has inherent power to preserve its constitutional authority.

"'It was certainly never intended that any one department, through the exercise of its acknowledged powers, should be able to prevent another department from fulfilling its responsibilities to the people under the Constitution.' [O'Coin's, Inc v Worcester Co Treasurer, 362 Mass. 507, 511; 287 N.E.2d 608 (1972).]

"However, an indispensable ingredient of the concept of coequal branches of government is that 'each branch must recognize and respect the limits on its own authority and the boundaries of the authority delegated to the other branches.' United States v Will, 449 U.S. 200, 228; 101 S. Ct. 471; 66 L. Ed. 2d 392 (1980)."

The doctrine of separation of powers "has never been interpreted in Michigan as meaning there can never be any overlapping of functions between branches or no control by one branch over the acts of another." People v Trinity, 189 Mich. App. 19, 22-23; 471 N.W.2d 626 (1991), citing Soap & Detergent Ass'n v Natural Resources Comm, 415 Mich. 728, 752; 330 N.W.2d 346 (1982). [**30] Instead, Michigan has adopted the view of the separation of powers doctrine that James Madison expressed in The Federalist, No. 47: "'Where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.'" Soap & Detergent Ass'n, supra at 752 (emphasis in original).

In his dissenting opinion, Judge Markman aptly added United States Supreme Court discussion of separation of powers to these authorities:

The constitutional separation of powers is concerned with "'the encroachment or aggrandizement of one branch at the expense of the other,'" Mistretta [v United States, [*312] c 488 U.S. 361, 382; 109 S. Ct. 647; 102 L. Ed. 2d 714 (1989)], and with disruptions of the "proper balance" between the branches that prevent one branch from "accomplishing its constitutionally assigned functions . . . ." Morrison v Olson, 487 U.S. 654, 695; 108 S. Ct. 2597; 101 L. Ed. 2d 569 (1988). [228 Mich. App. at 430.]

Despite largely agreeing on the applicable standard of review, presumption [**31] of constitutionality, and parameters of the Separation of Powers Clause, the Court of Appeals majority and dissent came to opposite conclusions about whether Act 374 facially violated the Separation of Powers Clause. This is also true with respect to the majority and dissent in this Court. I am convinced that plaintiffs' facial separation of powers challenge to Act 374 fails when the presumption of constitutionality and relevant standard of review are conscientiously applied.

I begin by summarizing the challenged subsections of § 593a. Subsection 3 states that employees serving in the court are employees of Wayne County (given the failure to timely create a Wayne County Judicial Council). Subsection 4 states that the employer, i.e., Wayne County, "in concurrence with the chief judge" has authority (a) to establish personnel policies and procedures with respect to various topics and (b) to collectively bargain with the employees' representatives. Subsection 5 states that, in the event of an impasse between the employer and the chief judge, the employer retains authority with respect to listed fiscally related subject matters, and the chief judge retains authority over all other personnel [**32] matters.

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The linchpin of the separation of powers challenge to these provisions is that they make Wayne County, which is part of the legislative branch of government, [*313] the "employer" of persons serving in the judicial branch. Whether these provisions violate the Separation of Powers Clause turns on what giving Wayne County "employer" status means.

The presumption of constitutionality requires us to construe Act 374 in a constitutional manner if at all possible. In drafting statutes, legislators are presumed to know the law. Orzel v Scott Drug Co, 449 Mich. 550, 576, n 29; 537 N.W.2d 208 (1995); People v Cash, 419 Mich. 230, 241; 351 N.W.2d 822 (1984). Legislators are also, of course, charged with knowledge of the Michigan Constitution. And, as United States Chief Justice John Marshall pointed out in Marbury v Madison, 5 U.S. 137, 179-180; 2 L. Ed. 60 (1803), legislators, having taken the same oath as we take, surely are as committed to fidelity to the constitution as we are. Accordingly, we must, without reservation, assume that the drafters of Act 374 were aware of the Separation of Powers [**33] Clause and the case law summarized by the Court of Appeals quoted above and that they intended Act 374 not to run afoul of this constitutional requirement (which is simply to say that, notwithstanding a status description of the county as "employer," we must assume, unless the context of the statute makes such impossible, that the Legislature wished to not deprive the judiciary of its well understood necessary powers with regard to its employees).

A full consideration of the challenged provisions of § 593a in context demonstrates that such a constitutionally repugnant meaning of "employer" was not intended. As stated by Judge Markman in his dissent, the designation of Wayne County as "employer" is "merely a declaration of status." 228 Mich. App. at 443. [*314] Despite this designation, "subsections 593a(4)-(9) of Act 374 clearly indicate the court's continuing authority over employees serving in the court"; Act 374 "clearly contemplates a critical role for the judiciary in exercising authority over employees serving in the judiciary, including a role in collective bargaining." 228 Mich. App. at 443, 445. I also agree with the following observations of Judge Markman:

That [**34] Wayne County, in concurrence with the court, has some authority over employees serving in the judiciary becomes potentially problematic only if the two branches disagree over some matter. . . . Although the impasse provisions of subsection 593a(5) appear to place certain subjects relating to employees serving in the court beyond the authority of the court in the event of an impasse, a closer look at this division of authority demonstrates that the subject matters committed to the authority of the local unit are those strictly relating to finances--the legitimate legislative concern of the local unit--while all other authority regarding personnel is committed to the court. These provisions represent a good-faith effort by the Michigan Legislature to roughly restate presently recognized spheres of authority on the part of local units and the judiciary in the operation of the trial courts. [228 Mich. App. at 446-447.]

Accordingly, considered in context, the challenged provisions do not constitute "an outright takeover of the court's employees" as the Court of Appeals majority concluded. 228 Mich. App. at 415. Rather, Act 374 outlines a coemployment relationship between [**35] the local funding unit and the chief judge in which they are to work together cooperatively.

Because both local funding units and the chief judge have legitimate responsibilities relating to the courts, see Administrative Order No. 1997-6, any system will include the potential for separation of powers [*315] violations. Act 374 is no exception; the relationship it delineates between local funding units and the chief judge could potentially lead to overstepping by either entity that would constitute a violation of the Separation of Powers Clause. However, the mere potential of a constitutional violation is insufficient to support a successful facial challenge. If we construe Act 374 in accordance with the presumption of constitutionality and consider its provisions in context, it is clear that plaintiffs have failed to establish that no set of circumstances exist under which Act 374 would be valid. In fact, Judge Markman suggested six examples of circumstances under which Act 374 would not violate the Separation of Powers Clause:

1. The county, pursuant to subsection 593a(6), appoints the chief judge as its agent for collective bargaining, and subsequently ratifies the contract as [**36] negotiated;

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2. The chief judge, pursuant to subsection 593a(6), appoints the county (or the county's representative) as agent for collective bargaining, and subsequently ratifies the contract as negotiated;

3. The county and the chief judge are separately represented, but as each issue for negotiation arises, these agents confer and reach accord regarding the position to be taken;

4. The county and the chief judge are separately represented, and with regard to some noneconomic issue their respective representatives differ; the chief judge prevails under subsection 593a(5)(b), which even the majority concedes must be constitutional (because it identifies a constitutional imperative pursuant to which the chief judge must be able to act unilaterally);

5. The county and the chief judge are separately represented, and with regard to some economic issue their respective representatives differ; if the chief judge can make a compelling case to establish that the funding necessary to implement his position is minimally required for the court to fulfill its constitutional responsibilities, the chief judge prevails under Wayne Circuit Judges [v Wayne Co ( On Rehearing), 386 Mich. 1; [**37] 190 N.W.2d 228 (1971)]; 6. The county and the chief judge are separately represented, and with regard to some economic issue their respective representatives differ; the chief judge is unable to make a compelling case to establish that the funding necessary to implement his position is minimally required for the [*316] court to fulfill its constitutional responsibilities; the county allows the chief judge full leeway to resolve the problem as he chooses within the parameters of a lump sum budget; again, there is no constitutional difficulty. Ottawa Co Controller v Ottawa Probate Judge, 156 Mich. App. 594, 603-604; 401 N.W.2d 869 (1986). [228 Mich. App. at 440, n 10.]

Accordingly, I believe that plaintiffs' facial challenge to Act 374 on separation of powers grounds fails.

In light of the inherent potential for separation of powers violations in the operation of the courts, I agree with the Court's issuance of an administrative order. This administrative order would provide guidance in the implementation of Act 374.

In summary, I believe the mistake the majority makes is to confuse what, in its view, is an unwise or ill-advised law, and [**38] I agree that it might be that, with a facially unconstitutional law. We should always exercise judicial review with great care to be sure that we are not intruding into political questions that are reserved to the Legislature. This venerable rule of judicial prudence is even more important when we intervene into matters that raise questions about the judiciary's inherent powers because of the natural inclination toward self-interest. Indeed, because we are charged with maintenance of the constitutional design so as to preserve separation of powers, we [*317] should be even more sensitive in matters declaring judicial prerogatives in order to avoid compromising our authority to speak and be respected as impartial arbiters of the constitution. I fear that the majority has neglected that important consideration today.

B. PERA Challenge

Plaintiffs also contend that Act 374 violates the PERA. In light of my conclusion that Act 374 does not, on its face, violate the Separation of Powers Clause, I am compelled to address this issue. Initially, I agree with the following observation of the Court of Appeals:

Of course, if 1996 PA 374 is inconsistent with [the PERA] or any [**39] previously enacted statute, then Act 374 is not, on that account alone, invalid. Rather, Act 374 would effect a repeal of such other statute by implication. Washtenaw Co Rd Comm'rs v Public Service Comm, 349 Mich. 663, 680; 85 N.W.2d 134 (1957); Antrim Co Social Welfare Bd v Lapeer Co Social Welfare Bd, 332 Mich. 224, 228; 50 N.W.2d 769 (1952). This notion is a corollary to the principle that one Legislature cannot enact irrepealable legislation or restrict its own power or that of its successors concerning the repeal or amendment of statutes. Atlas v Wayne Co Bd of Auditors, 281 Mich. 596, 599; 275 N.W. 507 (1937). [228 Mich. App. at 393, n 4.]

In his dissent, Judge Markman accurately summarized the parameters of the PERA:

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The PERA is the principal state law regulating public employment relations; it generally prevails over conflicting laws that do not specifically address collective bargaining. Local 1383, Int'l Ass'n of Fire Fighters, AFL-CIO v City of Warren, 411 Mich. 642, 655; 311 N.W.2d 702 (1981). "A primary goal of the [PERA] is to resolve labor-management [*318] [**40] strife through collective bargaining." Port Huron Ed Ass'n v Port Huron Area School Dist, 452 Mich. 309, 311; 550 N.W.2d 228 (1996). Under the PERA, a public employer must bargain collectively with representatives of its employees regarding wages, hours, and other terms and conditions of employment. MCL 423.215(1); MSA 17.455(15)(1); Port Huron, 452 Mich. at 317. [228 Mich. App. at 457.]

In St Clair Prosecutor v AFSCME, Local 1518, 425 Mich. 204, 233; 388 N.W.2d 231 (1986), we recognized the coemployer status in collective bargaining. We noted that this concept is especially useful in the "historically fragmented power structure of county government." Id. We held that the use of the coemployer status, which may require public employees' representatives to bargain with more than one person, "does not appear to impose an undue burden on the collective bargaining process." Id.

In his dissent, Judge Markman aptly stated:

Contrary to plaintiff JAA's assertion, members of different branches of government may be considered coemployers for purposes of the PERA. St. Clair Prosecutor [**41] involved a coemployer relationship between a county prosecutor, who is a member of the executive branch, People v Trinity, supra at 22; People v Potts, 45 Mich. App. 584, 589; 207 N.W.2d 170 (1973) (partial concurrence by Holbrook, P.J.), and a county, which in those circumstances was operating within the legislative sphere, Alan v Wayne Co, 388 Mich. 210, 245; 200 N.W.2d 628 (1972). [228 Mich. App. at 459.]

Here, § 593a makes Wayne County and the chief judge coemployers for purposes of the PERA. Section 593a provides roles for both the local funding unit and the chief in collective bargaining, requires both to [*319] participate in collective bargaining, 3 and binds both to the terms of a collective bargaining agreement. Because Act 374 does not limit plaintiffs' ability to collectively bargain over all the terms and conditions of employment and ensures that both Wayne County and the chief judge will be bound by any collective bargaining agreement, I conclude that it is not inconsistent with the PERA.

[**42] Conclusion

For these reasons, I conclude that Act 374 does not, on its face, violate the Separation of Powers Clause and that it does not violate the PERA. I would accordingly reverse the judgment of the Court of Appeals regarding these issues. I would also separately issue an administrative order to provide guidance in implementing Act 374.

End of Document

3 While subsection 593a(7) states that a chief judge may elect not to participate in collective bargaining, Administrative Order No. 1997-6 (and the new administrative order that will supplant it) require a chief judge choosing not to directly participate to designate a representative of the local funding unit to act on the court's behalf in collective bargaining.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION April 4, 2017 9:00 a.m.

v No. 330876 Washtenaw Circuit Court

SHAWN LOVETO CAMERON, JR., LC No. 13-001315-FH

Defendant-Appellant. Advance Sheets Version

Before: BECKERING, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

In this criminal proceeding, defendant Shawn Cameron, Jr., comes before this Court in an appeal of right for a second time. At issue in the instant appeal is whether the imposition of court costs under MCL 769.1k(1)(b)(iii) constitutes an unconstitutional tax. Defendant is not the first person to challenge the constitutionality of MCL 769.1k(1)(b)(iii) on this basis; however, there are no published opinions on the issue. We conclude that although it imposes a tax, MCL 769.1k(1)(b)(iii) is not unconstitutional, and we affirm the trial court’s assessment of court costs.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Defendant was convicted after a jury trial of assault with intent to do great bodily harm less than murder, MCL 750.84, for his role in an attack on a woman over a dispute regarding the payment of babysitting fees. The trial court sentenced him as a fourth-offense habitual offender, MCL 769.12, to 13 months’ to 20 years’ imprisonment. The court also ordered defendant to pay certain costs and fees, including $1,611 in court costs.

Defendant appealed by right, arguing that the trial court lacked the statutory authority to impose court costs and that the Legislature’s retroactive grant of such authority was unconstitutional. See 2014 PA 352, enacting § 1. Relying on binding precedent, a panel of this Court disagreed. People v Cameron, unpublished opinion per curiam of the Court of Appeals, issued July 28, 2015 (Docket No. 321387). However, the panel remanded the case to the trial court for a determination of whether the court costs imposed were “ ‘reasonably related to the actual costs incurred by the trial court[.]’ ” Id. at 2, quoting MCL 769.1k(1)(b)(iii).

On remand, the trial court explained the basis for the imposition of $1,611 in court costs:

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The Washtenaw County Trial Court previously established a factual basis for the court costs it has imposed on each felony case at the time of sentencing. The costs were computed based on the ten year average annual total court budget of $16,949,292 multiplied by the average annual percentage of all filings which are felonies, i.e., 22%, which revealed the average annual budget for the Washtenaw Trial Court’s handling of all of its criminal felony cases. This amount was then divided by the average annual number of felony filings over [the] last 6 years (2,217) which resulted in the average court costs of handling each felony case as $1,681. The state costs were subtracted ($68) as well as an additional $2, resulting in the sum of $1,611 being assessed per felony case.

On this basis, the trial court concluded that the amount of court costs imposed on defendant was reasonably related to the actual costs incurred by the trial court.

II. ANALYSIS

Defendant argues that the court-cost-assessment provision set forth in MCL 769.1k constitutes a tax, as opposed to a fee, because it raises revenue and criminal defendants do not pay court costs voluntarily. Defendant maintains that the costs cannot be considered a proportionate fee for services because criminal defendants are not being provided a service when they are subjected to prosecution in a court of law. As a tax, defendant contends that MCL 769.1k(1)(b)(iii) is unconstitutional because it violates Const 1963, art 4, § 32, which provides that “[e]very law which imposes, continues or revives a tax shall distinctly state the tax.” Moreover, defendant claims that there is no limit on the amount of costs that might be imposed under the statute. Defendant also argues that MCL 769.1k violates the separation-of-powers provision of Const 1963, art 3, § 2.

A. STANDARDS OF REVIEW

“Whether a charge is a permissible fee or an illegal tax is a question of law.” Dawson v Secretary of State, 274 Mich App 723, 740; 739 NW2d 339 (2007) (opinion by WILDER, P.J.) (quotation marks and citation omitted). This Court reviews constitutional questions de novo.1 People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999). “Statutes are presumed to be constitutional and must be construed as such unless it is clearly apparent that the statute is unconstitutional.” In re RFF, 242 Mich App 188, 205; 617 NW2d 745 (2000). “[T]he burden of proving that a statute is unconstitutional rests with the party challenging it.” In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich 1, 11; 740 NW2d 444 (2007).

1 Defendant concedes that when he was before the trial court he did not challenge as an unconstitutional tax the imposition of court costs under MCL 769.1k. Therefore, the issue is unpreserved. However, this Court may overlook preservation requirements if “an important constitutional question is involved . . . .” People v Gezelman (On Rehearing), 202 Mich App 172, 174; 507 NW2d 744 (1993).

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B. APPLICABLE LAW

The assessment of court costs against a convicted defendant is governed by MCL 769.1k(1), which provides:

(b) The court may impose any or all of the following:

* * *

(iii) Until 36 months after the date the amendatory act that added subsection (7) is enacted into law, any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case, including, but not limited to, the following:

(A) Salaries and benefits for relevant court personnel.

(B) Goods and services necessary for the operation of the court.

(C) Necessary expenses for the operation and maintenance of court buildings and facilities.

As defendant points out in his brief, separate panels of this Court have come to different conclusions in unpublished opinions with respect to whether court costs imposed under MCL 769.1k(1)(b)(iii) constitute a fee or a tax. Upon review of the issue, we agree with the analysis and conclusions set forth in People v Bailey, unpublished opinion per curiam of the Court of Appeals, issued December 15, 2015 (Docket No. 323190).2

C. TAX OR FEE

As this Court in Bailey pointed out, “[t]he first step in examining the constitutional muster of MCL 769.1k(1)(b)(iii) is to determine whether it assesses a ‘governmental “fee” ’ or a tax.” Bailey, unpub op at 3, quoting Dawson, 274 Mich App at 740.3

A tax is an “exaction[] or involuntary contribution[] of money the collection of which is sanctioned by law and enforceable by the courts.” Dukesherer Farms, Inc v Director of the Dep’t of Agriculture (After Remand), 405 Mich 1, 15; 273 NW2d 877 (1979) (quotation marks omitted). “Taxes have a primary purpose of raising revenue, while fees are usually in exchange for a service rendered or a benefit conferred.” Westlake Transp, Inc v Pub Serv Comm, 255 Mich App 589, 612; 662 NW2d 784 (2003), aff’d sub nom American Trucking Ass’ns, Inc v

2 Unpublished opinions are not binding but they may be consulted as persuasive authority. MCR 7.215(C)(1); Paris Meadows, LLC v Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010). 3 The parties to the case at bar agree that “fee” and “tax” are the categories at issue for characterizing the court costs that may be imposed pursuant to MCL 769.1k(1)(b)(iii).

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Mich Pub Serv Comm, 545 US 429; 125 S Ct 2419; 162 L Ed 2d 407 (2005), and Mid-Con Freight Sys, Inc v Mich Pub Serv Comm, 545 US 440; 125 S Ct 2427; 162 L Ed 2d 418 (2005). “Taxes are designed to raise revenue for the general public, while a fee confers benefits only upon the particular people who pay the fee, not the general public or even a portion of the public who do not pay the fee.” Westlake Transp, 255 Mich App at 613 (quotation marks and citation omitted).

When determining whether a charge constitutes a fee or a tax, a court must consider three questions: “(1) whether the charge serves a regulatory purpose rather than operates as a means of raising revenue, (2) whether the charge is proportionate to the necessary costs of the service to which it is related, and (3) whether the payor has the ability to refuse or limit its use of the service to which the charge is related.” Id. at 612. We will consider each of these questions in turn.

1. REGULATORY PURPOSE OR MEANS OF RAISING REVENUE

This factor looks at the purpose of the charge. We agree with defendant that the purpose of MCL 769.1k(1)(b)(iii) is to raise revenue. The plain language of the statute does not reveal a regulatory concern with the public health, safety, and welfare because court costs “are not a form of punishment.” People v Konopka (On Remand), 309 Mich App 345, 370; 869 NW2d 651 (2015). Rather, MCL 769.1k(1)(b)(iii) expressly allows a trial court to impose costs for “the actual costs incurred by the trial court,” including the compensation of court personnel and the recovery of necessary operational expenses. MCL 769.1k(1)(b)(iii)(A) to (C). Thus, MCL 769.1k(1)(b)(iii) focuses on the trial court’s revenue, i.e. “the income of a government from taxation and other sources, appropriated for public expenses.” Random House Webster’s College Dictionary (1996).

Recent caselaw supports the conclusion that MCL 769.1k(1)(b)(iii) functions to raise revenue for the courts. In Konopka, this Court assumed without elaboration that MCL 769.1k served a revenue-generating purpose and rejected the argument that the amended version of MCL 769.1k violated the Due Process and Equal Protection Clauses of the United States and Michigan Constitutions. The Konopka Court’s decision was based, in part, on the ground that “[t]he statute is rationally related to the legitimate purpose of compensating courts for the expenses incurred in trying criminal cases because it provides for the collection of costs from criminal defendants.” Konopka, 309 Mich App at 368, citing MCL 769.1k(1)(b)(iii). The Court further reasoned that

[b]ecause “the state, including its local subdivisions, is responsible for costs associated with arresting, processing, and adjudicating individuals” who commit criminal offenses, the classification scheme imposing costs on criminal defendants but not civil litigants is “rationally related to the legitimate governmental purpose of generating revenue from individuals who impose costs on the government and society.” [Konopka, 309 Mich App at 369, quoting Dawson, 274 Mich App at 738.]

Therefore, in light of the plain language of the statute and this Court’s interpretation of the statute in Konopka, we conclude that MCL 769.1k(1)(b)(iii) is a revenue-generating statute.

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2. PROPORTIONATE TO THE COSTS OF THE SERVICE

This factor looks at whether a court imposed costs that were proportionate to the services it rendered a particular defendant. Defendant argues that the costs imposed were not proportionate to the costs the court incurred because MCL 769.1k(1)(b)(iii) allows the court to impose costs on a party without separately calculating the actual costs incurred by that party. We disagree. Defendant’s argument is unavailing because he misconstrues proportionality as exactitude and because the court costs at issue had a factual basis and related to the actual costs the trial court incurred in felony criminal proceedings.

The test for proportionality is not whether a fee or tax is precisely equal to the actual costs incurred. See Westlake Transp, 255 Mich App at 615. In Westlake Transp, this Court considered whether Michigan’s $100 application fee and $100 annual renewal fee for intrastate truckers amounted to a governmental fee or a tax. Id. at 593. The plaintiffs argued that the fees were not proportional because they exceeded the expense of the related services. Id. at 614. This Court noted that “[a] fee must be proportionate to the cost of the regulation, but its amount is presumed reasonable unless its unreasonableness is established. Where revenue generated by a regulatory ‘fee’ exceeds the cost of regulation, the ‘fee’ is actually a tax in disguise.” Id. (quotation marks, citations, and brackets omitted). The Court considered a senate fiscal report provided by the plaintiffs showing that the agency collecting the fees had a “surplus” in “nearly every year” that the report examined. Id. at 614-615. Nevertheless, the Court concluded that the “aggregate excess” during the years covered by the report “was only 11.7 percent, a relatively small percentage,” and “that the Court of Claims did not clearly err in finding that the fees were not ‘wholly disproportionate.’ ” Id. at 615.

That a court imposes costs that may be more or less than the precise costs incurred in a particular criminal defendant’s prosecution does not mean that the costs are disproportionate or that ways of ensuring proportionality are lacking. MCL 769.1k(1)(b)(iii) requires a relationship between the costs imposed and the services they support by authorizing only costs “reasonably related to the actual costs incurred by the trial court . . . .” Additionally, this Court held in Konopka that a trial court must “establish a factual basis” for the costs imposed pursuant to MCL 769.1k(1)(b)(iii). Konopka, 309 Mich App at 359. As an aid to determining court costs, the State Court Administrative Office has recommended that circuit courts calculate costs for purposes of MCL 769.1k(1)(b)(iii) “by taking the average of actual costs times the percent of [the] workload for [the] criminal [division] divided by the average number of criminal cases disposed.”4 The trial court in the case at bar imposed costs calculated using a substantially similar formula to determine its average cost per felony case. Thus, the court costs at issue have

4 After the enactment of 2014 PA 352, the State Court Administrative Office (SCAO) provided the circuit courts with a memorandum setting forth options for calculating court costs. See SCAO, Memorandum Re 2014 PA 352 (November 6, 2014), available at <http://courts.mi.gov/Administration/SCAO/OfficesPrograms/Documents/collections/MCL769.1k-ImpositionCriminalFinesCostsAssessments.pdf> (accessed March 9, 2017) [https://perma.cc/K4GV-ANH8].

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a factual basis and are grounded in the average of actual costs incurred by the trial court in felony prosecutions. Although the court costs imposed on an individual defendant may vary from the actual expenses incurred in a specific defendant’s prosecution, such variance should not, given the trial court’s method of calculation in the instant case, result in an “aggregate excess” that would render the assessment disproportional. See Westlake Transp, 255 Mich App at 615.5

Defendant further argues that the costs are “not proportionate to the ‘service,’ because the courts confer benefit[s] to the public (justice, fairness, order) not the particular person on whom the costs are imposed.” This argument has merit.

At least one state court has recognized that the penal system benefits the public rather than the person convicted of a crime.6 State v Medeiros, 89 Hawaii 361, 370; 973 P2d 736 (1999). In Medeiros, the Supreme Court of Hawaii held that a local ordinance requiring a convicted person to pay “a service fee of $250.00 for services performed by the city in connection with the arrest, processing, investigation, and prosecution of the convicted person” was an unauthorized tax as opposed to a fee. Id. at 362 n 1. In reaching that conclusion, the court reasoned that “the ‘service’ of being investigated and prosecuted clearly does not ‘benefit’ the payors of the charge, i.e., the persons convicted as a result of the work of the police and the prosecutors; rather, it benefits society at large.” Medeiros, 89 Hawaii at 368. The court was skeptical of the argument that a criminal defendant received a rehabilitative benefit, but it concluded that “[e]ven assuming, arguendo, that a convicted person receives some benefit from his experience with the guiding hand of the law, . . . the principal purpose of the penal system is to benefit society, not those who break the law.” Id. at 370.

We find the reasoning in Medeiros persuasive and conclude that, although the court costs at issue comport with the requirements of MCL 769.1k(1)(b)(iii) and Konopka, they nevertheless are not proportionate to the service provided because any service rendered by the trial court’s role in the prosecution of defendant benefits primarily the public, not defendant.

5 In Bailey, this Court observed, as does plaintiff, that pursuant to MCL 769.1k,

the state court administrative office (SCAO) is tasked with compiling data, which information could be used to determine the proportionality of the costs assessed under the statute. However, trial courts only began collecting and submitting data in January 2015, and the SCAO has until July 1, 2016 to compile its first report. See MCL 769.1k(7), (9). Accordingly, the evidence defendant could present to establish the unreasonableness of costs assessed under the statute simply does not yet exist. [Bailey, unpub op at 5.]

Even assuming the correctness of that analysis and that the report to which it refers currently exists, defendant does not attempt to make any use of it for purposes of this appeal. 6 Caselaw from sister state courts may be considered for its persuasive value. Travelers Prop Cas Co of America v Peaker Servs, Inc, 306 Mich App 178, 188; 855 NW2d 523 (2014), citing Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 221 n 6; 761 NW2d 293 (2008).

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3. PAYOR’S ABILITY TO REFUSE OR LIMIT USE OF THE SERVICE

The last factor requires consideration “whether the payor has the ability to refuse or limit its use of the service to which the charge is related.” Westlake Transp, 255 Mich App at 612. Both plaintiff and defendant agree that, generally speaking, court costs are not voluntarily incurred. As plaintiff conceded: “It is clear that a criminal defendant has no power to ‘pass’ on his or her prosecution and avoid the underlying costs. Even if a defendant chooses to plead and forego [sic] a trial, costs are incurred and assessed.”

In sum, MCL 769.1k(1)(b)(iii) clearly raises revenue rather than regulates behavior. Although the statute was written to ensure that costs imposed on criminal defendants are proportional to the costs incurred by the trial court, the costs lack important hallmarks of a fee. Mainly, the benefactor of a successful felony prosecution is the general public, not the defendant who is paying for that service. Accordingly, court costs do not “confer[] benefits only upon the particular people who pay the fee[.]” Westlake Transp, 255 Mich App at 613 (quotation marks and citation omitted). Rather, court costs confer benefits on “the general public or even a portion of the public who do not pay the fee.” Id. (quotation marks and citation omitted). And once charged with a felony, a defendant lacks “the ability to refuse or limit its use of the service to which the charge is related.” Id. at 612. Considering the factors “in their totality,” the costs at issue should be considered a tax, not a fee.7 Id. In fact, while this Court is not bound by a party’s statement regarding what the law is, we note that the prosecution concedes that MCL 769.1k(1)(b)(iii) “is, in fact, a tax, rather than a governmental fee.” Accordingly, MCL 769.1k(1)(b)(iii) must comply with the Distinct Statement Clause. Const 1963, art 4, § 32; Gillette Commercial Operations North America & Subsidiaries v Dep’t of Treasury, 312 Mich App 394, 447; 878 NW2d 891 (2015).

D. DISTINCT STATEMENT CLAUSE

The Distinct Statement Clause provides that “[e]very law which imposes, continues or revives a tax shall distinctly state the tax.” Const 1963, art 4, § 32. As this Court explained in Gillette: 7 Defendant engages in what amounts to a drive-by citing of the Headlee Amendment, Const 1963, art 9, § 31, and Bolt v City of Lansing, 459 Mich 152, 158-159, 168; 587 NW2d 264 (1998), in support of his contention that the levying of a tax is prohibited without first seeking the approval of the electorate. Defendant’s cited authorities, however, pertain to the activities of local units of government and to controlling the total amount of taxes that may be imposed on state taxpayers in any fiscal year. See, e.g., Airlines Parking, Inc v Wayne Co, 452 Mich 527; 550 NW2d 490 (1996). “It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651 NW2d 756 (2002) (quotation marks and citation omitted). Defendant has not established that either of his cited authorities supports his argument, and thus, he has effectively abandoned this issue.

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The purpose of [the distinct-statement] provision is to prevent the Legislature from being deceived in regard to any measure for levying taxes, and from furnishing money that might by some indirection be used for objects not approved by the Legislature. The Distinct-Statement Clause is violated if a statute imposes an obscure or deceitful tax, such as when a tax is disguised as a regulatory fee. [Gillette, 312 Mich App at 447 (quotation marks and citations omitted).]

Defendant contends that MCL 769.1k(1)(b)(iii) violates the Distinct Statement Clause because it does not reveal that it is creating a tax, does not establish a “rate of calculation,” does not specify or limit the amount a court may charge, and does not clarify what proportion of the court’s operating and maintenance costs criminal defendants will bear. Defendant asserts that these flaws in the statute render the costs it sanctions obscure and deceitful and, therefore, unconstitutional. We disagree.

MCL 769.1k(1)(b)(iii) does not require that a court separately calculate the actual costs in each case, and it does not set or specifically limit the amount of costs a court may impose. However, this is not to say that the statute fails to provide any guidance or limitations. MCL 769.1k(1)(b)(iii) limits the costs to those “reasonably related” to the costs the court incurs, and it provides a nonexclusive list of the types of expenses the court may include in its determination of costs. Implicit in the statute, and made explicit by this Court’s analysis in Konopka, 309 Mich App at 359-360, is the court’s obligation to “establish a factual basis” for the costs imposed.

In addition, the amendments occasioned by 2014 PA 352, which ushered in MCL 769.1k(1)(b)(iii), did not produce an effect that was “obscure or deceitful,” Gillette, 312 Mich App at 447, because the public act stated its purpose clearly as follows:

This amendatory act is a curative measure that addresses the authority of courts to impose costs under section 1k of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.1k, before the issuance of the supreme court opinion in People v Cunningham, 496 Mich 145 (2014). [2014 PA 352, enacting § 2.]

Further, MCL 769.1k(1)(b)(iii) contains provisions ensuring transparency and accountability in connection with the costs imposed, which weigh against a result that is obscure or deceitful. For example, MCL 769.1k(7) requires that “[b]eginning January 1, 2015, the court shall make available to a defendant information about any fine, cost, or assessment imposed under subsection (1), including information about any cost imposed under subsection (1)(b)(iii).” MCL 769.1k also requires that “each year the clerk of the court shall transmit a report to the state court administrative office” revealing the “[t]he total amount of costs that were imposed [and collected] by that court under subsection (1)(b)(iii).” MCL 769.1k(8)(c) and (d). The State Court Administrative Office, in turn, must compile the data and submit an annual report to the governor. MCL 769.1k(9). In addition, MCL 769.1k(1)(b)(iii) contains a sunset clause, authorizing the assessment of costs in the manner set forth in the statute “[u]ntil 36 months after the date the amendatory act that added subsection (7) is enacted into law . . . .”

In sum, MCL 769.1k(1)(b)(iii) was an effort by the Legislature to allow trial courts to impose costs on a convicted defendant in amounts reflecting the court’s actual operational costs

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in connection with criminal cases. While a trial court retains some discretion in calculating the costs, the statutory guidance encourages the court to use a formula to determine the average cost of a criminal case. In any event, the trial court must establish on the record its factual basis for those costs. Konopka, 309 Mich App at 359-360. It is true that MCL 769.1k(1)(b)(iii) does not contain the word “tax.” Nevertheless, defendant has presented no evidence indicating that the Legislature did not intend MCL 769.1k(1)(b)(iii) to raise revenue for the courts or that the court costs collected are directed to a use unintended by the Legislature. Gillette, 312 Mich App at 447. Accordingly, defendant has not carried his burden of proving that the statute violates the Distinct Statement Clause. See In re Request for Advisory Opinion, 479 Mich at 11.

E. SEPARATION OF POWERS

Defendant next argues that MCL 769.1k(1)(b)(iii) violates our Constitution’s separation of powers provision on the ground that “[t]he amended cost statute delegates to the trial court the authority to determine the amount of the tax” when “the power to tax rests solely with the Legislature.” However, other than identifying the pertinent constitutional provisions, defendant cites no authority in support of his argument that MCL 769.1k(1)(b)(iii) violates the separation-of-powers doctrine. Consequently, we could consider defendant’s argument abandoned on the ground that a party may not leave it to this Court to “ ‘unravel and elaborate for him his arguments . . . .’ ” Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Nonetheless, because this issue has been raised by several other defendants and is not yet the subject of a published opinion, we will address it.

Const 1963, art 3, § 2 states that “[t]he 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.” As our Supreme Court has explained, however, the separation-of-powers doctrine does not require an absolute separation of the branches of government:

While the Constitution provides for three separate branches of government, the boundaries between these branches need not be airtight. In fact, in designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. The true meaning [of the separation-of-powers doctrine] is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution. [Makowski v Governor, 495 Mich 465, 482; 852 NW2d 61 (2014) (quotation marks and citations omitted; alteration in original).]

“If the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible.” Hopkins v Parole Bd, 237 Mich App 629, 636; 604 NW2d 686 (1999).

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Regarding the imposition of taxes, the Michigan Constitution provides that “[t]he legislature shall impose taxes sufficient with other resources to pay the expenses of state government,” Const 1963, art 9, § 1, and that “[t]he power of taxation shall never be surrendered, suspended or contracted away,” Const 1963, art 9, § 2. Therefore, the power to tax and appropriate generally rests exclusively with the Legislature. UAW v Green, 498 Mich 282, 290; 870 NW2d 867 (2015).

Nevertheless, a legislature may delegate its powers. Hoffman v Otto, 277 Mich 437, 440; 269 NW 225 (1936) (noting that, “to the extent of public need,” the power of taxation may be delegated to municipal power). To delegate its powers without violating the separation-of-powers doctrine, a legislature must provide guidelines and standards to the body to which power is delegated. McNeil v Charlevoix Co, 484 Mich 69, 102; 772 NW2d 18 (2009) (MARKMAN, J., concurring in part and dissenting in part) (noting, for example, that the Legislature may “delegate a task to an executive branch agency if it provides ‘sufficient standards’ ”). The Legislature’s delegation of authority is proper if the standards it provides are “as reasonably precise as the subject matter requires or permits.” Westervelt v Natural Resources Comm, 402 Mich 412, 438; 263 NW2d 564 (1978) (quotation marks and citation omitted); City of Ann Arbor v Nat’l Ctr for Mfg Sciences, Inc, 204 Mich App 303, 308; 514 NW2d 224 (1994) (“[T]he standards must be sufficiently broad to permit efficient administration so that the policy of the Legislature may be complied with, but not so broad as to give uncontrolled and arbitrary power to the administrators.”).

In accordance with the foregoing principles, the Bailey Court determined that MCL 769.1k(1)(b)(iii) did not violate the constitutional provision mandating the separation of governmental powers. Bailey, unpub op at 5. The panel, assuming that MCL 769.1k(1)(b)(iii) “imposes a tax,” regarded the situation as “akin to the legislative delegation of sentencing discretion to trial courts,” id., and elaborated:

It is well established that the ultimate authority to provide for penalties for criminal offenses is constitutionally vested in the Legislature, and the role of the judiciary is to impose and administer the sentencing statutes as enacted. . . . [M]any sentencing statutes delegate discretion to the trial courts in determining a defendant’s appropriate sentence. However, the Supreme Court has proclaimed that the separation of powers clause . . . is not offended by the Legislature delegating sentencing discretion in part and retaining sentencing discretion in part. [Id. at 5-6 (quotation marks and citations omitted).]

In Bailey, the panel acknowledged that costs assessed under MCL 769.1k(1)(b)(iii) were not imposed as punishment and therefore that authorities addressing sentencing discretion were not directly on point. Id. at 6. However, the panel held that “this delegation, like the delegation of sentencing discretion, was not taken without providing guidance and parameters.” Id. The panel further observed that “the bestowing of such discretion does not become an unconstitutional delegation of a legislative function where its exercise is controlled and guided by adequate standards in the statute authorizing it.” Id. at 6 (quotation marks and citation omitted). The panel outlined the guidance provided by the Legislature in MCL 769.1k(1)(b)(iii) before concluding that there was “no unconstitutional delegation of legislative authority.” Id. We find the analysis in Bailey to be persuasive.

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In sum, even if our Legislature delegated some of its taxing authority to the circuit courts, the Michigan Constitution does not require an absolute separation of powers. Makowski, 495 Mich at 482. In addition, MCL 769.1k(1)(b)(iii) provides adequate guidance to the circuit courts by instructing them to impose “any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case . . . .” Further, it was necessary for the Legislature to provide “sufficiently broad” guidance in order to accommodate the varying costs incurred by the circuit courts. Nat’l Ctr for Mfg Sciences, Inc, 204 Mich App at 308. Although defendant bemoans the lack of a specified methodology for calculating court costs, the plain language of MCL 769.1k(1)(b)(iii) suggests that a court should impose costs in accordance with the costs involved in an average case. This Court’s interpretation of MCL 769.1k(1)(b)(iii) as requiring a factual basis for the assessed costs further ensures that the circuit courts do not exercise unfettered discretion under MCL 769.1k(1)(b)(iii). See Konopka, 309 Mich App at 359. Especially because he has cited no authority in support of his position, defendant failed to carry his burden of proving that MCL 769.1k(1)(b)(iii) operates as an unconstitutional delegation of power. See In re Request for Advisory Opinion, 479 Mich at 11.

III. CONCLUSION

MCL 769.1k(1)(b)(iii) is a revenue-generating measure, and the courts forcibly impose the assessment against unwilling individuals. Therefore, it is a tax rather than a governmental fee. Although the statute does not expressly state that it imposes a tax, the statute is neither obscure nor deceitful, and therefore, it does not run afoul of the Distinct Statement Clause of Michigan’s Constitution. Finally, because a trial court must establish a factual basis for its assessment of costs to ensure that the costs imposed are reasonably related to those incurred by the court in cases of the same nature, 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. We affirm the trial court’s imposition of court costs against defendant.

Affirmed.

/s/ Jane M. Beckering /s/ Peter D. O’Connell /s/ Stephen L. Borrello

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Exhibit FR

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Michigan Indigent Defense Commission SEND COMMENTS TO: 200 N. WASHINGTON SQUARE, 3RD FLOOR, LANSING, MICHIGAN, 48913 | [email protected] (517) 657-3066

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

Minimum Standards for Indigent Criminal Defense Services SPRING 2018

Standards 1, 2, 3, and 4 were approved by the Department of Licensing and Regulatory Affairs on May 22, 2017.

This packet contains the complete text of the approved standards and 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 June 12, 2018.

The MIDC will hold a public hearing on the proposed standards on June 12, 2018 in Lansing.

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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 Michiganand federal law, constitutional law, criminal law, criminal procedure, rules of evidence, ethicalrules and local practices. Counsel has a continuing obligation to have reasonable knowledgeof the changes and developments in the law. “Reasonable knowledge” as used in thisstandard means knowledge of which a lawyer competent under MRPC 1.1 would be aware.

B. Knowledge of scientific evidence and applicable defenses. Counsel shall havereasonable 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 litigatethose issues.

C. Knowledge of technology. Counsel shall be reasonably able to use office technologycommonly used in the legal community, and technology used within the applicable courtsystem. Counsel shall be reasonably able to thoroughly review materials that are provided inan electronic format.

D. Continuing education. Counsel shall annually complete continuing legal educationcourses relevant to the representation of the criminally accused. Counsel shall participate inskills training and educational programs in order to maintain and enhance overall preparation,oral and written advocacy, and litigation and negotiation skills. Lawyers can discharge thisobligation for annual continuing legal education by attending local trainings or statewideconferences. Attorneys with fewer than two years of experience practicing criminal defensein Michigan shall participate in one basic skills acquisition class. All attorneys shall annuallycomplete at least twelve hours of continuing legal education. Training shall be fundedthrough compliance plans submitted by the local delivery system or other mechanism thatdoes not place a financial burden on assigned counsel. The MIDC shall collect or direct thecollection of data regarding the number of hours of continuing legal education offered to andattended by assigned counsel, shall analyze the quality of the training, and shall ensure thatthe effectiveness of the training be measurable and validated. A report regarding these datashall 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

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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 soonas practicable after appointment to represent the defendant in order to obtain informationnecessary to provide quality representation at the early stages of the case and to provide theclient with information concerning counsel’s representation and the case proceedings. Thepurpose of the initial interview is to: (1) establish the best possible relationship with theindigent client; (2) review charges; (3) determine whether a motion for pretrial release isappropriate; (4) determine the need to start-up any immediate investigations; (5) determineany immediate mental or physical health needs or need for foreign language interpreterassistance; and (6) advise that clients should not discuss the circumstances of the arrest orallegations with cellmates, law enforcement, family or anybody else without counsel present.Counsel shall conduct subsequent client interviews as needed. Following appointment, counselshall conduct the initial interview with the client sufficiently before any subsequent courtproceeding so as to be prepared for that proceeding. When a client is in local custody, counselshall 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 communicationso that the client may follow-up and schedule a meeting. If confidential videoconferencefacilities are made available for trial attorneys, visits should at least be scheduled within threebusiness days. If an indigent defendant is in the custody of the Michigan Department ofCorrections (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 andconfidential setting to the extent reasonably possible. The indigent criminal defense systemshall ensure the necessary accommodations for private discussions between counsel andclients in courthouses, lock-ups, jails, prisons, detention centers, and other places whereclients 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 pretrialrelease, and discoverable material.

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D. Client status:

1. Counsel shall evaluate whether the client is capable of participation in his/herrepresentation, understands the charges, and has some basic comprehension of criminalprocedure. Counsel has a continuing responsibility to evaluate, and, where appropriate, raiseas an issue for the court the client’s capacity to stand trial or to enter a plea pursuant to MCR6.125 and MCL 330.2020. Counsel shall take appropriate action where there are any questionsabout a client’s competency.

2. Where counsel is unable to communicate with the client because of language orcommunication differences, counsel shall take whatever steps are necessary to fully explainthe proceedings in a language or form of communication the client can understand. Stepsinclude seeking the appointment of an interpreter to assist with pretrial preparation,interviews, investigation, and in‐ court proceedings, or other accommodations pursuant toMCR. 1.111.

Comments:

1. The MIDC recognizes that counsel cannot ensure communication prior to court with an outof custody indigent client. For out of custody clients the standard instead requires the attorneyto 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 PublicCounsel Services Assigned Counsel Manual requires a visit within three business days forcustody clients; the Supreme Court of Nevada issued a performance standard requiring aninitial interview within 72 hours of appointment).

3. Certain indigent criminal defense systems only pay counsel for limited client visits incustody. In these jurisdictions, compliance plans with this standard will need to guaranteefunding for multiple visits.

4. In certain systems, counsel is not immediately notified of appointments to representindigent clients. In these jurisdictions, compliance plans must resolve any issues with thefailure to provide timely notification.

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

6. The three-business-day requirement is specific to clients in “local” custody because someindigent 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 jurisdictionsrequiring distant client visits compliance plans might provide for visits through confidentialvideoconferencing.

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 interviewsare expected, as necessary.

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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 promptlyas practicable.

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

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

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

Comments:

1. The MIDC recognizes that counsel can make “a reasonable decision that makes particularinvestigations 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 orrepresentations made by the government.

2. The MIDC emphasizes that a client’s professed desire to plead guilty does not automaticallyalleviate 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 tackledin 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

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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 indigentcriminal defense services. The indigency determination shall be made and counsel appointedto provide assistance to the defendant as soon as the defendant’s liberty is subject torestriction by a magistrate or judge. Representation includes but is not limited to thearraignment 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 anappropriate bond regardless of and, indeed, in the face of, an interim bond set prior toarraignment which has no precedential effect on bond-setting at arraignment. Nothing in thisparagraph 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 haveappointed counsel at pre-trial proceedings, during plea negotiations and at other criticalstages, whether in court or out of court.

Comments:

1. The proposed standard addresses an indigent defendant’s right to counsel at every courtappearance and is not addressing vertical representation (same defense counsel continuouslyrepresents) which will be the subject of a future minimum standard as described in MCL780.991(2)(d).

2. One of several potential compliance plans for this standard may use an on-dutyarraignment attorney to represent defendants. This appointment may be a limited appearancefor 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 thecriminal justice process, advice on what topics to discuss with the judge, a focus on thepotential for pre-trial release, or achieving dispositions outside of the criminal justice systemvia civil infraction or dismissal. In rare cases, if an attorney has reviewed discovery and hasan opportunity for a confidential discussion with her client, there may be a criminal dispositionat arraignment.

4. The MIDC anticipates creative and cost-effective compliance plans like representation andadvocacy through videoconferencing or consolidated arraignment schedules between multipledistrict 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 theformal 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, andvoluntary. People v Anderson, 398 Mich 361; 247 NW2d 857 (1976). The uncounseleddefendant must have sufficient information to make an intelligent choice dependent on arange of case-specific factors, including his education or sophistication, the complexity oreasily grasped nature of the charge, and the stage of the proceeding.

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New Standard proposed by MIDC – public comments welcome [email protected] by June 12, 2018

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 toguarantee the integrity of the relationship between lawyer and client. The system andthe lawyers serving under it should be free from political and undue budgetaryinfluence. Both should be subject to judicial supervision only in the same manner andto the same extent as retained counsel or the prosecution. The selection of lawyersand the payment for their services shall not be made by the judiciary or employeesreporting to the judiciary. Similarly, the selection and approval of, and payment for,other expenses necessary for providing effective assistance of defense counsel shallnot 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; makinga determination of indigency and entitlement to appointment; if deemed eligible forcounsel, 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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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 misdemeanors3 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, 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 properfunding for prosecutors to have reasonable caseloads.

2. The MIDC is aware that the problem of excessive caseloads is one that needs to beresolved in tandem with compensation reform, so that attorneys do not need to takeon too many indigent defense assignments to earn a living. The MIDC is concurrentlyproposing a standard on economic disincentives or incentives for representing indigentclients.

3. The MIDC does not believe that caseload pressures should ever create a situation whereindigent clients facing criminal charges do not receive the appointment of counsel.

4. Compliance plans should include a means to account for and audit caseloadcalculations.

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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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 effectiveassistance of counsel to which they are constitutionally entitled, attorneys providingdefense services shall meet the following minimum professional qualifications (hereafter“basic requirements”):

1. Satisfy the minimum requirements for practicing law in Michigan asdetermined by the Michigan Supreme Court and the State Bar of Michigan;and

2. Comply with the requirements of MIDC Standard 1, relating to the Trainingand Education of Defense Counsel.

B. Qualifications. Eligibility for particular case assignments shall be based on counsel’sability, training and experience. Attorneys must meet the following case-typequalifications:

1. Misdemeanor Casesa. Satisfaction of all Basic Requirements; andb. Serve as co-counsel or second chair in a prior trial (misdemeanor, felony,

bench or jury); orc. equivalent experience and ability to demonstrate similar skills.

2. Low-severity Felony Casesa. 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 handleda significant portion of the trial in two criminal cases that havereached 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; andi. Has practiced criminal law for two full years (either as a prosecutor,

public defender, or in private criminal defense practice); andii. Has been trial counsel alone or with other trial counsel and handled

a significant portion of the trial in four criminal cases that have beensubmitted to a jury.

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4. Life Offense Casesa. 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 felonyjury trials that have been submitted to a jury.

C. Review. The quality of the representation provided by indigent defense providers mustbe 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 hasestablished the minimum requirements for eligibility. For attorneys seeking qualificationunder 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 beimproved. In all cases, the evaluation of attorneys must be made by peers in the criminaldefense community, allowing for input from other stakeholders in the criminal justicesystem including judges, prosecutors and clients.

Staff Comments:

1. The Minimum Standard for Qualification and Review applies to all attorneys acceptingassignments to represent defendants charged in adult criminal cases, includingattorneys employed by a public defender office.

2. Misdemeanors, low-severity felonies and high-severity felonies are defined in theMichigan Legislative Sentencing Guidelines. A “life offense” for purposes of thisMinimum Standard includes any case where the offense charged or enhancementsought 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 andexperience. Other non-merit based qualifications that relate to counsel’s membershipin a bar association or maintaining a local business address shall not be given undueweight.

4. The MIDC discourages imposing a geographic limitation on counsel’s practice area, solong as counsel can meet with a client on an as-needed basis without hardship to theclient and can appear in court when required.

5. The appointing authority should maintain a list of qualified counsel, but has thediscretion to reach outside of the list of locally qualified attorneys when required inorder to appoint counsel with the ability, training and experience to match the natureand complexity of the case to be assigned.

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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 benefitsand resources should be provided to indigent defense counsel. The rates paid by the MichiganAttorney General for Special Assistant Attorneys General, or other state offices serve asguidance for reasonable compensation.

B. Compensation and Expenses for Assigned Counsel. Assigned counsel should receiveprompt compensation at a reasonable rate and should be reimbursed for their reasonable out-of-pocket, case-related expenses. Assigned counsel should be compensated for all worknecessary to provide quality legal representation. Activities outside of court appearances,such as directing an investigation, negotiating, or tactical planning, etc., require no less legalskill and expertise than in-court appearances, and are equally important to qualityrepresentation.

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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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 contractshould avoid any actual or apparent financial disincentives to the attorney’s obligation toprovide 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, specifiedin the contract, for compensation to account for increases or decreases in caseloadsize;

(2) They are based on a compensation system that realistically assesses the cost ofproviding competent representation as described above in Section B;

(3) They provide for regular, periodic payments to the indigent defense organization orattorney;

(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 orenhancement sought subjects the indigent defendant to life in prison;

(6) They implement the MIDC required hourly rates; when hourly schemes are notutilized, local systems must demonstrate that compensation is at least equivalent tothese rates.

D. Conflict Counsel. When any conflict of interest is identified by a public defender office orby assigned counsel, that case should be returned for reassignment to the designatingauthority. Payments to conflict counsel (fees or any other expenses incurred during therepresentation) shall not be deducted from the line item or contract negotiated with theprimary providers (public defender office, house counsel, assignment system or through anyagreement with private attorneys or law firms).

E. Reimbursements. Attorneys must be reimbursed for any out-of-pocket expenses theyincur as a result of representation. Mileage should be reimbursed based on prevailing localnorms and should not be less than State of Michigan standard published rates.

F. Payments. Vouchers submitted by assigned counsel and contract defenders should bereviewed by an administrator and/or her and his staff, who should be empowered to approveor disapprove fees. This is efficient, ensures the independence of counsel, and relieves judgesof the burden of this administrative task. It also helps to equalize fees through a centralizedfee-approval system. Vouchers should be approved in a timely manner unless there is causeto believe the amount claimed is unwarranted. In lengthy cases, periodic billing and paymentduring 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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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 IndigentDefense 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 forboth assigned counsel and contract counsel. Attorneys should be directed to submitexplanations for any invoices in which their hours exceed the expected maximum hours.After attorneys submit itemized bills, the administrator and/or staff should review anddetermine whether the case falls into the category of minimal scrutiny, meaning that itfalls within the expected number of allotted hours, or the category of heightenedscrutiny for exceeding an expected hourly threshold, meaning the administrator needsto further investigate the invoice. Bills should not be automatically approved or deniedif 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 explanationsufficient, the administrator should invite further explanation. Upon receivingadditional details, the administrator then makes a final decision. All local systemsshould have policies in place that outline voucher review procedures, including the rightfor attorneys to appeal decisions and the right for administrators to remove attorneysfrom panel lists or terminate contracts for ongoing submissions that exceed thethreshold.

3. Due to the potential to disincentivize quality representation, event based, cappedhourly rates, and flat fee payment schemes will be subjected to increased monitoringand auditing as a condition of receiving MIDC funds.

4. The MIDC will collect data on event based, capped hourly rates, and flat fee paymentschemes for the first year after implementation of this standard and revise the standardif these schemes are disincentivizing quality representation.

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