HB-4529, As Passed Senate, June 19, 2013

SUBSTITUTE FOR

HOUSE BILL NO. 4529

A bill to create the Michigan indigent defense commission and

to provide for its powers and duties; to provide indigent

defendants in criminal cases with effective assistance of counsel;

to provide standards for the appointment of legal counsel; to

provide for and limit certain causes of action; and to provide for

certain appropriations and grants.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the

"Michigan indigent defense commission act".

Sec. 3. As used in this act:

(a) "Adult" means either of the following:

(i) An individual 17 years of age or older.

(ii) An individual less than 17 years of age at the time of the

commission of a felony if any of the following conditions apply:

(A) During consideration of a petition filed under section 4

of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

712A.4, to waive jurisdiction to try the individual as an adult and

upon granting a waiver of jurisdiction.

(B) The prosecuting attorney designates the case under section

2d(1) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

712A.2d, as a case in which the juvenile is to be tried in the same

manner as an adult.

attorney under section 2d(2) of chapter XIIA of the probate code of

1939, 1939 PA 288, MCL 712A.2d, that the court designate the case

as a case in which the juvenile is to be tried in the same manner

as an adult.

(D) The prosecuting attorney authorizes the filing of a

complaint and warrant for a specified juvenile violation under

section 1f of chapter IV of the code of criminal procedure, 1927 PA

175, MCL 764.1f.

(b) "Effective assistance of counsel" or "effective

representation" means legal representation that is compliant with

standards established by the appellate courts of this state and the

United States supreme court.

described in section 11(3).

(d) "Indigent criminal defense services" means local legal

defense services provided to a defendant and to which both of the

following conditions apply:

(i) The defendant is being prosecuted or sentenced for a crime

for which an individual may be imprisoned upon conviction,

beginning with the defendant's initial appearance in court to

answer to the criminal charge.

(ii) The defendant is determined to be indigent under section

11(3).

(e) Indigent criminal defense services do not include services

authorized to be provided under the appellate defender act, 1978 PA

620, MCL 780.711 to 780.719.

(f) "Indigent criminal defense system" or "system" means

either of the following:

(i) The local unit of government that funds a trial court

combined with each and every trial court funded by the local unit

of government.

(ii) If a trial court is funded by more than 1 local unit of

government, those local units of government, collectively, combined

with each and every trial court funded by those local units of

government.

(g) "Local share" or "share" means an indigent criminal

defense system's average annual expenditure for indigent criminal

defense services in the 3 fiscal years immediately preceding the

creation of the MIDC under this act, excluding money reimbursed to

the system by individuals determined to be partially indigent.

(h) "MIDC" or "commission" means the Michigan indigent defense

commission created under section 5.

Sec. 5. (1) The Michigan indigent defense commission is

created in the judicial branch of state government.

(2) The MIDC shall retain as an autonomous entity all

statutory authority, powers, duties, functions, records, personnel,

property, unexpended balances of appropriations, allocations, and

other functions, including the functions of budgeting, personnel,

locating offices, and other management functions. Any portion of

funds appropriated to the MIDC that is not expended in a state

fiscal year shall not lapse to the general fund but shall be

carried forward in a work project account that is in compliance

with section 451a of the management and budget act, 1984 PA 431,

MCL 18.1451a, for use in the following state fiscal year.

(3) The MIDC shall propose minimum standards for the local

delivery of indigent criminal defense services providing effective

assistance of counsel to adults throughout this state. These

minimum standards shall be designed to ensure the provision of

indigent criminal defense services that meet constitutional

requirements for effective assistance of counsel. The commission

shall convene a public hearing before a proposed standard is

submitted to the supreme court. A minimum standard proposed under

this subsection shall be submitted to the supreme court. Opposition

to a proposed minimum standard may be submitted to the supreme

court in a manner prescribed by the supreme court, but a minimum

standard that is approved by the supreme court is not subject to

challenge through the appellate procedures under section 15. A

proposed minimum standard shall be final when it is approved by the

supreme court. If the supreme court neither approves nor

disapproves a proposed minimum standard within 180 days of its

submission, then the standard is not approved.

(4) The MIDC shall identify and encourage best practices for

delivering the effective assistance of counsel to indigent

defendants charged with crimes.

Sec. 7. (1) The MIDC includes 15 voting members and the ex

officio member described in subsection (2). The 15 voting members

shall be appointed by the governor for terms of 4 years, except as

provided in subsection (4). Subject to subsection (3), the governor

shall appoint members under this subsection as follows:

(a) Two members submitted by the speaker of the house of

representatives.

(b) Two members submitted by the senate majority leader.

court chief justice.

(d) Three members from a list of 9 names submitted by the

criminal defense attorney association of Michigan.

(e) One member from a list of 3 names submitted by the

Michigan judges association.

(f) One member from a list of 3 names submitted by the

Michigan district judges association.

(g) One member from a list of 3 names submitted by the state

bar of Michigan.

(h) One member from a list of names submitted by bar

associations whose primary mission or purpose is to advocate for

minority interests. Each bar association described in this

subdivision may submit 1 name.

(i) One member from a list of 3 names submitted by the

prosecuting attorney's association of Michigan who is a former

county prosecuting attorney or former assistant county prosecuting

attorney.

(j) One member selected to represent the general public.

(k) One member selected to represent local units of

government.

(2) The supreme court chief justice or his or her designee

shall serve as an ex officio member of the MIDC without vote.

(3) Individuals nominated for service on the MIDC as provided

in subsection (1) shall have significant experience in the defense

or prosecution of criminal proceedings or have demonstrated a

strong commitment to providing effective representation in indigent

criminal defense services. Of the members appointed under this

section, the governor shall appoint no fewer than 2 individuals who

are not licensed attorneys. Any individual who receives

compensation from this state or an indigent criminal defense system

for providing prosecution of or representation to indigent adults

in state courts is ineligible to serve as a member of the MIDC. Not

more than 3 judges, whether they are former judges or sitting

judges, shall serve on the MIDC at the same time. The governor may

reject the names submitted under subsection (1) and request

additional names.

(4) MIDC members shall hold office until their successors are

appointed. The terms of the members shall be staggered. Initially,

4 members shall be appointed for a term of 4 years each, 4 members

shall be appointed for a term of 3 years each, 4 members shall be

appointed for a term of 2 years each, and 3 members shall be

appointed for a term of 1 year each.

(5) The governor shall fill a vacancy occurring in the

membership of the MIDC in the same manner as the original

appointment, except if the vacancy is for an appointment described

in subsection (1)(d), the source of the nomination shall submit a

list of 3 names for each vacancy. However, if the senate majority

leader or the speaker of the house of representatives is the source

of the nomination, 1 name shall be submitted. If an MIDC member

vacates his or her commission before the end of the member's term,

the governor shall fill that vacancy for the unexpired term only.

(6) The governor shall appoint 1 of the original MIDC members

to serve as chairperson of the MIDC for a term of 1 year. At the

expiration of that year, or upon the vacancy in the membership of

the member appointed chairperson, the MIDC shall annually elect a

chairperson from its membership to serve a 1-year term. An MIDC

member shall not serve as chairperson of the MIDC for more than 3

consecutive terms.

(7) MIDC members shall not receive compensation in that

capacity but shall be reimbursed for their reasonable actual and

necessary expenses by the state treasurer.

(8) The governor may remove an MIDC member for incompetence,

dereliction of duty, malfeasance, misfeasance, or nonfeasance in

office, or for any other good cause.

(9) A majority of the MIDC voting members constitute a quorum

for the transaction of business at a meeting of the MIDC. A

majority of the MIDC voting members are required for official

action of the commission.

(10) Confidential case information, including, but not limited

to, client information and attorney work product, is exempt from

disclosure under the freedom of information act, 1976 PA 442, MCL

15.231 to 15.246.

Sec. 9. (1) The MIDC has the following authority and duties:

(a) Developing and overseeing 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 consistent with the safeguards of the United

States constitution, the state constitution of 1963, and this act.

(b) Investigating, auditing, and reviewing the operation of

indigent criminal defense services to assure compliance with the

commission's minimum standards, rules, and procedures. However, an

indigent criminal defense service that is in compliance with the

commission's minimum standards, rules, and procedures shall not be

required to provide indigent criminal defense services in excess of

those standards, rules, and procedures.

appropriate number of staff needed to accomplish the purpose of the

MIDC consistent with annual appropriations.

(d) Assigning the executive director the following duties:

(i) Establishing an organizational chart, preparing an annual

budget, and hiring, disciplining, and firing staff.

(ii) Assisting the MIDC in developing, implementing, and

regularly reviewing the MIDC's standards, rules, and procedures,

including, but not limited to, recommending to the MIDC suggested

changes to the criteria for an indigent adult's eligibility for

receiving criminal trial defense services under this act.

(e) Establishing procedures for the receipt and resolution of

complaints, and the implementation of recommendations from the

courts, other participants in the criminal justice system, clients,

and members of the public.

(f) Establishing procedures for the mandatory collection of

data concerning the operation of the MIDC, each individual attorney

providing indigent criminal defense services, each indigent

criminal defense system, and the operation of indigent criminal

defense services.

(g) Establishing rules and procedures for indigent criminal

defense systems to apply to the MIDC for grants to bring the

system's delivery of indigent criminal defense services into

compliance with the minimum standards established by the MIDC.

(h) Establishing procedures for annually reporting to the

governor, legislature, and supreme court. The report required under

this subdivision shall include, but not be limited to,

recommendations for improvements and further legislative action.

(2) Upon the appropriation of sufficient funds, the MIDC shall

establish minimum standards to carry out the purpose of this act,

and collect data from all indigent criminal defense systems and

individual attorneys providing indigent criminal defense services

to adults. The MIDC shall propose goals for compliance with the

minimum standards established under this act consistent with the

metrics established under this section and appropriations by this

state.

(3) In establishing and overseeing the minimum standards,

rules, and procedures described in subsection (1), the MIDC shall

emphasize the importance of indigent criminal defense services

provided to juveniles under the age of 17 who are tried in the same

manner as adults or who may be sentenced in the same manner as

adults and to adults with mental impairments.

(4) The MIDC shall be mindful that defense attorneys who

provide indigent criminal defense services are partners with the

prosecution, law enforcement, and the judiciary in the criminal

justice system.

(5) The commission shall establish procedures for the conduct

of its affairs and promulgate policies necessary to carry out its

powers and duties under this act.

(6) Commission policies shall be placed in an appropriate

manual, made publicly available on a website, and made available to

all attorneys and professionals providing indigent criminal defense

services, the supreme court, the governor, the senate majority

leader, the speaker of the house of representatives, the senate and

house appropriations committees, and the senate and house fiscal

agencies.

Sec. 11. (1) The MIDC shall establish minimum standards,

rules, and procedures to effectuate the following:

(a) 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.

(b) If the caseload is sufficiently high, indigent criminal

defense services may consist of both an indigent criminal defender

office and the active participation of other members of the state

bar.

advised of his or her right to counsel. 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.

(2) The MIDC shall implement minimum standards, rules, and

procedures to guarantee the right of indigent defendants to the

assistance of counsel as provided under amendment VI of the

constitution of the United States and section 20 of article I of

the state constitution of 1963. In establishing minimum standards,

rules, and procedures, the MIDC shall adhere to the following

principles:

(a) Defense counsel is provided sufficient time and a space

where attorney-client confidentiality is safeguarded for meetings

with defense counsel's client.

(b) Defense counsel's workload is controlled to permit

effective representation. Economic disincentives or incentives that

impair defense counsel's ability to provide effective

representation shall be avoided. The MIDC may develop workload

controls to enhance defense counsel's ability to provide effective

representation.

the nature and complexity of the case to which he or she is

appointed.

(d) The same defense counsel continuously represents and

personally appears at every court appearance throughout the

pendency of the case. However, indigent criminal defense systems

may exempt ministerial, nonsubstantive tasks, and hearings from

this prescription.

(e) Defense counsel is required to attend continuing legal

education relevant to counsel's indigent defense clients.

(f) Defense counsel is systematically reviewed at the local

level for efficiency and for effective representation according to

MIDC standards.

(3) The following requirements apply to the application for,

and appointment of, indigent criminal defense services under this

act:

(a) 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. The

determination may be reviewed by the court at any other stage of

the proceedings. In determining whether a defendant is entitled to

the appointment of counsel, the court shall consider whether the

defendant is indigent and the extent of his or her ability to pay.

The court may consider such factors as income or funds from

employment or any other source, including personal public

assistance, to which the defendant is entitled, property owned by

the defendant or in which he or she has an economic interest,

outstanding obligations, the number and ages of the defendant's

dependents, employment and job training history, and his or her

level of education.

(b) A defendant is considered to be indigent if he or she is

unable, without substantial financial hardship to himself or

herself or to his or her dependents, to obtain competent, qualified

legal representation on his or her own. Substantial financial

hardship shall be rebuttably presumed if the defendant receives

personal public assistance, including under the food assistance

program, temporary assistance for needy families, medicaid, or

disability insurance, resides in public housing, or earns an income

less than 140% of the federal poverty guideline. A defendant is

also rebuttably presumed to have a substantial financial hardship

if he or she is currently serving a sentence in a correctional

institution or is receiving residential treatment in a mental

health or substance abuse facility.

described in subdivision (b) shall be subjected to a more rigorous

screening process to determine if his or her particular

circumstances, including the seriousness of the charges being

faced, his or her monthly expenses, and local private counsel rates

would result in a substantial hardship if he or she were required

to retain private counsel.

(d) A defendant shall be responsible for applying for indigent

defense counsel and for establishing his or her indigency and

eligibility for appointed counsel under this act. Any oral or

written statements made by the defendant in or for use in the

criminal proceeding and material to the issue of his or her

indigency shall be made under oath or an equivalent affirmation.

Sec. 13. (1) All indigent criminal defense systems and, at the

direction of the supreme court, attorneys engaged in providing

indigent criminal defense services shall cooperate and participate

with the MIDC in the investigation, audit, and review of their

indigent criminal defense services.

(2) An indigent criminal defense system may submit to the MIDC

an estimate of the cost of developing the plan and cost analysis

for implementing the plan under subsection (3) to the MIDC for

approval. Upon approval, the MIDC shall award the indigent criminal

defense system a grant to pay the approved costs for developing the

plan and cost analysis under subsection (3).

(3) No later than 180 days after a standard is approved by the

supreme court, each indigent criminal defense system shall submit a

plan to the MIDC for the provision of indigent criminal defense

services in a manner as determined by the MIDC and shall submit an

annual plan for the following state fiscal year on or before

February 1 of each year. A plan submitted under this subsection

shall specifically address how the minimum standards established by

the MIDC under this act shall be met and shall include a cost

analysis. The standards to be addressed in the annual plan are

those that the supreme court approved not less than 60 days before

the annual plan submission date. This cost analysis shall include a

statement of the funds in excess of the local share, if any,

necessary to allow its system to comply with the MIDC's minimum

standards.

(4) The MIDC shall approve or disapprove a plan or cost

analysis, or both a plan and cost analysis, submitted under

subsection (3), and shall do so within 60 calendar days of the

submission of the plan and cost analysis. If the MIDC disapproves

the plan, the cost analysis, or both the plan and the cost

analysis, the indigent criminal defense system shall consult with

the MIDC and submit a new plan, a new cost analysis, or both within

30 calendar days of the mailing date of the official notification

of the MIDC's disapproval. If after 3 submissions a compromise is

not reached, the dispute shall be resolved as provided in section

15.

(5) The MIDC shall submit a report to the governor, the senate

majority leader, the speaker of the house of representatives, and

the appropriations committees of the senate and house of

representatives requesting the appropriation of funds necessary to

implement the plan for each system approved by the MIDC. The

information used to create this report shall be made available to

the governor, the senate majority leader, the speaker of the house

of representatives, and the appropriations committees of the senate

and house of representatives.

(6) Except as provided in subsection (8), an indigent criminal

defense system shall maintain not less than its local share. If the

MIDC determines that funding in excess of the indigent criminal

defense system's share is necessary in order to bring its system

into compliance with the minimum standards established by the MIDC,

that excess funding shall be paid by this state. The legislature

shall appropriate to the MIDC the additional funds necessary for a

system to meet and maintain those minimum standards, which funds

shall be provided to indigent criminal defense systems through

grants as described in subsection (7).

(7) An indigent criminal defense system shall not be required

to provide funds in excess of its local share. The MIDC shall

provide grants to indigent criminal defense systems to assist in

bringing the systems into compliance with minimum standards

established by the MIDC.

(8) An indigent criminal defense system is not required to

expend its local share if the minimum standards established by the

MIDC may be met for less than that share, but the local share of a

system that expends less than its local share under these

circumstances is not reduced by the lower expenditure.

(9) This state shall appropriate funds to the MIDC for grants

to the local units of government for the reasonable costs

associated with data required to be collected under this act that

is over and above the local unit of government's data costs for

other purposes.

(10) Within 180 days after receiving funds from the MIDC under

subsection (7), an indigent criminal defense system shall comply

with the terms of the grant in bringing its system into compliance

with the minimum standards established by the MIDC for effective

assistance of counsel.

(11) If an indigent criminal defense system is awarded no

funds for implementation of its plan under this act, the MIDC shall

nevertheless issue to the system a zero grant reflecting that it

will receive no grant funds.

(12) The MIDC may apply for and obtain grants from any source

to carry out the purposes of this act. All funds received by MIDC,

from any source, are state funds and shall be appropriated as

provided by law.

Sec. 15. (1) If a dispute arises between the MIDC and an

indigent criminal defense system concerning the requirements of

this act, including a dispute concerning the approval of an

indigent criminal defense system's plan, cost analysis, or

compliance with section 13 or 17, the parties shall attempt to

resolve the dispute by mediation. The state court administrator, as

authorized by the supreme court, shall appoint a mediator agreed to

by the parties within 30 calendar days of the mailing date of the

official notification of the third disapproval by the MIDC under

section 13(4) to mediate the dispute and shall facilitate the

mediation process. The MIDC shall immediately send the state court

administrative office a copy of the official notice of that third

disapproval. If the parties do not agree on the selection of the

mediator, the state court administrator, as authorized by the

supreme court, shall appoint a mediator of his or her choosing.

Mediation shall commence within 30 calendar days after the mediator

is appointed and terminate within 60 calendar days of its

commencement. Mediation costs associated with mediation of the

dispute shall be paid equally by the parties.

(2) If the parties do not come to a resolution of the dispute

during mediation under subsection (1), all of the following apply:

(a) The mediator may submit his or her recommendation of how

the dispute should be resolved to the MIDC within 30 calendar days

of the conclusion of mediation for the MIDC's consideration.

(b) The MIDC shall consider the recommendation of the

mediator, if any, and shall approve a final plan or the cost

analysis, or both, in the manner the MIDC considers appropriate

within 30 calendar days, and the indigent criminal defense system

shall implement the plan as approved by the MIDC.

the final plan, cost analysis, or both, may bring an action seeking

equitable relief as described in subsection (3).

(3) The MIDC, or an indigent criminal defense system may bring

an action seeking equitable relief in the circuit court only as

follows:

(a) Within 60 days after the MIDC's issuance of an approved

plan and cost analysis under subsection (2)(b).

(b) Within 60 days after the system receives grant funds under

section 13(7), if the plan, cost analysis, or both, required a

grant award for implementation of the plan.

indigent criminal defense system has breached its duty to comply

with an approved plan.

(d) The action shall be brought in the judicial circuit where

the indigent criminal defense service is located. The state court

administrator, as authorized by the supreme court, shall assign an

active or retired judge from a judicial circuit other than the

judicial circuit where the action was filed to hear the case. Costs

associated with the assignment of the judge shall be paid equally

by the parties.

(e) The action shall not challenge the validity, legality, or

appropriateness of the minimum standards approved by the supreme

court.

(4) If the dispute involves the indigent criminal defense

system's plan, cost analysis, or both, the court may approve,

reject, or modify the submitted plan, cost analysis, or the terms

of a grant awarded under section 13(7) other than the amount of the

grant, determine whether section 13 has been complied with, and

issue any orders necessary to obtain compliance with this act.

However, the system shall not be required to expend more than its

local share in complying with this act.

(5) If a party refuses or fails to comply with a previous

order of the court, the court may enforce the previous order

through the court's enforcement remedies, including, but not

limited to, its contempt powers, and may order that the state

undertake the provision of indigent criminal defense services in

lieu of the indigent criminal defense system.

(6) If the court determines that an indigent criminal defense

system has breached its duty under section 17(1), the court may

order the MIDC to provide indigent criminal defense on behalf of

that system.

(7) If the court orders the MIDC to provide indigent criminal

defense services on behalf of an indigent criminal defense system,

the court shall order the system to pay the following amount of the

state's costs that the MIDC determines are necessary in order to

bring the indigent criminal defense system into compliance with the

minimum standards established by the MIDC:

(a) In the first year, 10% of the state's costs.

(b) In the second year, 20% of the state's costs.

(d) In the fourth year, 40% of the state's costs.

(e) In the fifth year, and any subsequent year, not more than

the dollar amount that was calculated under subdivision (d).

(8) An indigent criminal defense system may resume providing

indigent criminal defense services at any time as provided under

section 13. When a system resumes providing indigent criminal

defense services, it is no longer required to pay an assessment

under subsection (7) but shall be required to pay no less than its

share.

Sec. 17. (1) Except as provided in subsection (2), every local

unit of government and every trial court that is part of an

indigent criminal defense system shall comply with an approved plan

under this act.

(2) A system's duty of compliance with the terms of the plan

as prescribed under subsection (1) is contingent upon receipt of a

grant in the amount contained in the plan and cost analysis

approved by the MIDC.

(3) The MIDC may proceed under section 15 if an indigent

criminal defense system breaches its duty of compliance under

subsection (1).

Sec. 19. The MIDC shall publish and make available to the

public on a website its annual report, its budget, and a listing of

all expenditures. Publication and availability of the listing of

expenditures shall be on a quarterly basis, except for the annual

report and salary information, which may be published and made

available on an annual basis. As used in this section,

"expenditures" means all payments or disbursements of MIDC funds,

received from any source, made by the MIDC.

Sec. 21. Both of the following apply to the MIDC:

(a) The freedom of information act, 1976 PA 442, MCL 15.231 to

15.246, except as provided in section 7(10).

(b) The open meetings act, 1976 PA 267, MCL 15.261 to 15.275.

Sec. 23. (1) Nothing in this act shall be construed to

overrule, expand, or extend, either directly or by analogy, any

decisions reached by the United States supreme court or the supreme

court of this state regarding the effective assistance of counsel.

(2) Nothing in this act shall be construed to override section

29 or 30 of article IX of the state constitution of 1963.

(3) Except as otherwise provided in this act, the failure of

an indigent criminal defense system to comply with statutory duties

imposed under this act does not create a cause of action against

the government or a system.

(4) Statutory duties imposed that create a higher standard

than that imposed by the United States constitution or the state

constitution of 1963 do not create a cause of action against a

local unit of government, an indigent criminal defense system, or

this state.

(5) Violations of MIDC rules that do not constitute

ineffective assistance of counsel under the United States

constitution or the state constitution of 1963 do not constitute

grounds for a conviction to be reversed or a judgment to be

modified for ineffective assistance of counsel.