April 10, 2013, Introduced by Reps. McMillin, Lipton, Heise, Lyons, Haveman, Yonker, Muxlow, Walsh, Callton, Cavanagh, Roberts, Townsend, Darany, Irwin, Singh, Howrylak, Somerville, Dillon, Hovey-Wright, Brown, Ananich, Hobbs, Durhal, Switalski and Oakes and referred to the Committee on Criminal Justice.
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; 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.
(C) During consideration of a request by the prosecuting
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
appellate courts of the United States.
(c) "Indigent" means meeting 1 or more of the conditions
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. The
supreme court shall approve or disapprove a proposed minimum
standard within 180 days of its submission. A proposed minimum
standard shall be final when it is approved by the supreme court.
If the supreme court neither approves nor disapproves, 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.
(c) One member from a list of 3 names submitted by the supreme
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.
(c) Hiring an executive director and determining the
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.
(c) Trial courts shall assure that each criminal defendant is
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.
(c) Defense counsel's ability, training, and experience match
the nature and complexity of the case to which he or she is
appointed.
(d) The same defense counsel continuously represents and
personally appears at every court appearance throughout the
pendency of the case. However, indigent criminal defense systems
may exempt ministerial, 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 facility.
(c) A defendant not falling below the presumptive thresholds
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) A local unit of government 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 local unit of
government 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. 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. 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 may 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
60 calendar days of the new submission. If after 3 submissions a
compromise is not reached, the state court administrative office
shall appoint a mediator agreed to by the MIDC and the indigent
criminal defense system within 30 calendar days to mediate the
dispute as provided under subsection (5). Any mediation costs
associated with mediation of the dispute shall be paid equally by
the parties.
(5) Mediation of the dispute shall commence within 30 calendar
days after the mediator is appointed and finish within 60 calendar
days of its commencement. If the parties do not come to a dispute
of the dispute, both 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 for the MIDC's consideration.
(b) The MIDC shall consider the recommendation of the
mediator, if any, and shall determine the final parameters of the
plan or the cost analysis, or both within 30 calendar days, and the
indigent criminal defense system shall implement the plan and cost
analysis as determined by the MIDC.
(6) If an indigent criminal defense system fails to comply
with the requirements of subsection (5)(b), the MIDC shall proceed
under section 15.
(7) 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.
(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
(9).
(9) Except as provided in section 15, 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.
(10) 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.
(11) Within 180 days after receiving funds from the MIDC under
subsection (9), 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.
(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 an indigent criminal defense system fails to
comply with section 13 within 60 calendar days, the MIDC shall
undertake the administration of indigent criminal defense services
for the indigent criminal defense system, and in addition to paying
its local share, the indigent criminal defense system shall pay the
following assessments as 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.
(c) In the third year, 30% of the state's costs.
(d) In the fourth year, or any subsequent year, 40% of the
state's costs.
(2) An indigent criminal defense system may resume the
administration of indigent criminal defense services at any time
upon approval by the MIDC of its plan for the provision of indigent
crime defense services and cost analysis. When a system resumes
that administration, it is no longer required to pay an assessment
under subsection (1) but shall be required to pay no less than its
share.
Sec. 17. 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. 19. 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. 21. (1) Nothing in this act should 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) 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 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.