HB-5804, As Passed House, November 8, 2012

SUBSTITUTE FOR

HOUSE BILL NO. 5804

A bill to create the Michigan indigent defense commission and

to provide for its powers and duties; to provide for

constitutionally effective assistance of counsel to represent

indigent defendants in criminal cases; to provide standards for the

appointment of legal counsel; and to provide for certain

appropriations.

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, and the individual is arraigned on a felony charge

in circuit court.

(b) "Criminal law" means a law of this state that provides for

the possibility of imprisonment upon conviction.

defense services other than those authorized to be provided under

the appellate defender act, 1978 PA 620, MCL 780.711 to 780.719.

(d) "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.

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

delivery of criminal trial defense services providing

constitutionally effective assistance of counsel to indigent adults

throughout this state. A minimum standard proposed under this

subsection takes effect upon the supreme court's approval or 120

days after submission to the supreme court for review, whichever

occurs first, unless the supreme court rejects the proposed minimum

standard.

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

delivering that assistance.

(5) Local units of government shall comply with the standards

established by the MIDC under this act and shall cooperate with the

MIDC in carrying out its duties under this act.

Sec. 7. (1) The MIDC consists of 14 members, 13 of whom shall

be appointed by the governor for terms of 4 years. 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) Two members from a list of 6 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 names submitted by bar associations whose

primary mission or purpose is to advocate for minority interests.

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

(j) 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 shall have

significant experience in the defense or prosecution of criminal

proceedings or have demonstrated a strong commitment to high-

quality representation in indigent criminal trial defense matters.

Of the members appointed under this section, the governor shall

appoint no fewer than 2 individuals who are not licensed attorneys.

An individual who receives compensation from this state or a local

unit of government for providing 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, 3 members

shall be appointed for a term of 3 years each, 3 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 that the source of the nomination shall submit

a list of 3 names for each vacancy. 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 voting members present and serving 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 criminal trial defense services providing effective

assistance of trial 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

local indigent criminal trial defense delivery systems to assure

compliance with the commission's 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 and enforcing the MIDC's standards, rules, and

procedures, including, but not limited to, determining 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

representing indigent criminal trial defense services, and each

local indigent criminal trial defense services system.

(g) 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

hire staff, establish minimum standards to carry out the purpose of

this act, and begin collecting data from all local units of

government and individual attorneys providing criminal trial

defense services to indigent adults. To the extent feasible, the

MIDC shall establish metrics for determining the resources

necessary for each local unit of government to comply with the

minimum standards established by the MIDC and for the MIDC to

fulfill its role. The MIDC shall establish a timeline for local

units of government to comply 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 requirements,

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

emphasize the importance of criminal trial 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 indigent adults with mental impairments.

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

represent indigent adults are equal partners with the prosecution,

law enforcement, and the judiciary in the criminal justice system.

The MIDC shall also be mindful that the local indigent criminal

trial defense systems should be adequately funded in order to

fulfill their roles.

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

rules, and procedures to effectuate the following:

(a) The delivery of indigent criminal trial defense services,

including, but not limited to, the selection, funding, and payment

of defense counsel, 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 trial defense services.

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

trial defense services shall 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 indigent 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 feasible after

formal charges are filed against the indigent adult.

(2) In establishing minimum requirements, 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 high-

quality representation. A local unit of government shall not create

economic disincentives or incentives that may impair defense

counsel's ability to provide effective representation, and 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, local units of government may exempt

ministerial, nonsubstantive tasks, and hearings from this

prescription.

(e) Defense counsel is provided with and required to attend

relevant continuing legal education.

(f) Defense counsel is systematically reviewed for quality and

efficiency of representation according to MIDC standards.

(3) The MIDC shall permit a local indigent criminal trial

defense service system to continue to operate if it complies with

the principles listed in subsection (2).

Sec. 13. (1) It is the duty of this state to ensure criminal

trial defense services providing constitutionally effective

assistance of counsel to indigent adult defendants through this

state. All local units of government shall cooperate and

participate in the investigation, audit, and review of their local

indigent criminal trial defense systems conducted by the MIDC under

section 11.

(2) A local unit of government shall maintain not less than

the level of funding for indigent criminal trial defense services,

adjusted for inflation as reported by the Detroit consumer price

index, as its average annual expenditure in the 3 fiscal years

immediately preceding the creation of the MIDC under this act, or

the statewide average annual expenditure in the 3 fiscal years

immediately preceding the creation of the MIDC under this act,

whichever is greater. If additional funding is necessary in order

to bring a local unit of government's delivery of criminal trial

defense services into compliance with the standards established by

the MIDC, that additional funding shall be paid by this state. The

legislature shall appropriate the additional funds necessary to a

local unit of government to allow that local unit of government to

meet the demonstrated and quantified requirements of a local unit

of government to meet those standards. The statewide average annual

expenditure in the 3 fiscal years immediately preceding the

creation of the MIDC shall be determined by the MIDC on an

expenditure per capita basis after input from and consultation with

the house fiscal agency, the senate fiscal agency, and the state

court administrative office. For purposes of this section, average

annual expenditure shall be calculated as follows:

(a) A county shall count all funds expended for the provision

of indigent criminal trial defense services for adults by the

county together with all funds expended by other units of

government within that county for the provision of indigent

criminal trial defense services for adults, including, but not

limited to, funds expended through district court districts of the

third class as that term is defined in section 8103 of the revised

judicature act of 1961, 1961 PA 236, MCL 600.8103.

(b) A local unit of government operating or participating in

the operation of a district court district of the third class shall

count all funds expended for the provision of indigent criminal

trial defense services for adults through or in that district of

the third class as that term is defined in section 8103 of the

revised judicature act of 1961, 1961 PA 236, MCL 600.8103.

(3) A local indigent criminal trial defense system may request

that the MIDC review its current or proposed system to determine

its compliance with the standards established under this act. The

MIDC shall conduct a review as necessary to determine its level of

compliance. If the MIDC determines that the local indigent criminal

trial defense system is in compliance, the maintenance of funding

provisions of this section requiring a minimum expenditure of the

minimum statewide average shall not apply and no state funds shall

be used to support that local indigent criminal trial defense

system.

(4) The MIDC shall provide criminal trial defense services to

indigent adults if, or to the extent that, a local indigent

criminal trial defense system fails or is unable to meet the

minimum standards necessary for the delivery of constitutionally

effective assistance of counsel established by the MIDC under

section 11. Upon request, a local unit of government shall be

afforded an opportunity to be heard by the MIDC prior to the MIDC's

determination that it is not in compliance.

(5) If a local unit of government requests a hearing under

subsection (4), the MIDC shall identify the local unit of

government's areas of noncompliance and allow sufficient time for

the local unit of government to come into compliance.

(6) If, after the time allowed under subsection (5), a local

unit of government fails to comply, the MIDC shall provide indigent

criminal trial defense services at state cost to that local unit of

government.

(7) Upon the MIDC's determination that a local unit of

government has failed or is unable to meet the minimum standards

established by the MIDC under this act, the MIDC shall direct the

state treasurer to withhold an amount equal to that local unit of

government's maintenance of the funding requirement prescribed

under subsection (2) from any state payments to that local unit of

government. No action shall be taken against a local unit of

government providing adult indigent criminal trial defense services

for failing to maintain funding under section 13(2) prior to the

approval of the first minimum standard by the supreme court.

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

to carry out the purposes of this act.

Sec. 15. (1) 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.

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

proposed policy becomes effective.

(3) Commission policies shall be placed in an appropriate

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

all attorneys and professionals providing public defense services,

the supreme court, the senate and house appropriations committees,

and the senate and house fiscal agencies.

Sec. 17. Both of the following apply to the MIDC:

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

15.246.

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

Sec. 19. Nothing in this act should be construed to overrule,

expand, or extend, either directly or by analogy, the decision

reached by the United States supreme court in Strickland v

Washington, 466 US 688 (1984), or its progeny in the supreme court

of this state.