HB-5842, As Passed Senate, December 14, 2016

HOUSE BILL No. 5842

September 8, 2016, Introduced by Rep. Heise and referred to the Committee on Criminal Justice.

     A bill to amend 2013 PA 93, entitled

"Michigan indigent defense commission act,"

by amending sections 3, 5, and 11 (MCL 780.983, 780.985, and

780.991).

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     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) "Department" means the department of licensing and

regulatory affairs.

(c) (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.

(d) (c) "Indigent" means meeting 1 or more of the conditions

described in section 11(3).

(e) (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).

(f) (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.

(g) (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.

(h) (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.

(i) (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.established

within the department.

     (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. However, these

minimum standards 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.

     (4) The commission shall convene a public hearing before a

proposed standard is submitted to the supreme court. recommended to

the department. A minimum standard proposed under this subsection

shall be submitted to the supreme court. department for approval or

rejection. Opposition to a proposed minimum standard may be

submitted to the supreme court department 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. department. An indigent criminal

defense system that objects to a recommended minimum standard on

the ground that the recommended minimum standard would exceed the

MIDC's statutory authority shall state specifically how the

recommended minimum standard would exceed the MIDC's statutory

authority. A proposed minimum standard shall be is 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.department. A minimum standard that is approved by the

department is not subject to challenge through the appellate

procedures in section 15. An approved minimum standard for the

local delivery of indigent criminal defense services within an

indigent criminal defense system is not a rule as defined in

section 7 of the administrative procedures act of 1969, 1969 PA

306, MCL 24.207.

     (5) Approval of a minimum standard proposed by the MIDC is

considered a final department action subject to judicial review

under section 28 of article VI of the state constitution of 1963 to

determine whether the approved minimum standard is authorized by

law. Jurisdiction and venue for judicial review are vested in the

court of claims. An indigent criminal defense system may file a

petition for review in the court of claims within 60 days after the

date of mailing notice of the department's final decision on the

recommended minimum standard. The filing of a petition for review

does not stay enforcement of an approved minimum standard, but the

department may grant, or the court of claims may order, a stay upon

appropriate terms.

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

for delivering the effective assistance of counsel to indigent

defendants charged with crimes.

     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 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 Indigent criminal

defense systems employ only defense counsel who have attended

continuing legal education relevant to counsel's counsels' indigent

defense clients.

     (f) Defense counsel is systematically reviewed Indigent

criminal defense systems systematically review defense counsel 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 for purposes of this act shall be

made by the court as determined by the indigent criminal defense

system not later than at the defendant's first appearance in court.

The determination may be reviewed by the court indigent criminal

defense system at any other stage of the proceedings. In

determining whether a defendant is entitled to the appointment of

counsel, the court indigent criminal defense system shall consider

whether the defendant is indigent and the extent of his or her

ability to pay. The court may consider such factors as Factors to

be considered include, but are not limited to, 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. A trial court may play a role in this

determination as part of any indigent criminal defense system's

compliance plan under the direction and supervision of the supreme

court, consistent with section 4 of article VI of the state

constitution of 1963. 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.

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

House Bill No. 5842 as amended September 21, 2016

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.

     (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.

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House Bill No. 5842 as amended September 21, 2016

     Enacting section [1]. This amendatory act does not take effect

unless all of the following bills of the 98th Legislature are

enacted into law:

     (a) Senate Bill No. ____ or House Bill No. 5843 (request no.

06474'16).

     (b) Senate Bill No. ____ or House Bill No. 5844 (request no.

06475'16).

     (c) Senate Bill No. ____ or House Bill No. 5845 (request no.

06476'16).

     (d) Senate Bill No. ____ or House Bill No. 5846 (request no.

06477'16).