August 15, 2012, Introduced by Reps. McMillin, Constan, Heise, Lipton, Haveman, Dillon, Walsh, Irwin, Switalski, Graves, Somerville, Cotter, Muxlow, Jacobsen, Damrow, Greimel, Haines, Hobbs, Liss, Callton, Kandrevas, McCann, Rutledge, Horn, Nesbitt, Lund, Franz, Hughes, Meadows, Cavanagh, Olumba, Tlaib, Geiss, Darany, Haugh, Stapleton, Lane, Ananich, Townsend, Durhal, Santana, LeBlanc, Jackson, Bauer, Howze, Goike, Barnett, Price, Kowall, Rogers, Knollenberg, Forlini, Oakes, Brown, Nathan, Hooker, Bumstead, Yonker, Jenkins, Kurtz, MacMaster, Opsommer, Bledsoe, Slavens, Gilbert, Foster, Ouimet, Womack, Wayne Schmidt, Lyons, Pscholka, Crawford, Shirkey, Stallworth, Stanley and Olson and referred to the Committee on Judiciary.
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 who is charged in
the family division of the circuit court or in the general division
of the circuit court with violating a criminal law under section 4
of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL
712A.4.
(b) "Criminal law" means a law of this state that provides for
the possibility of imprisonment upon conviction.
(c) "Criminal trial defense services" means criminal law
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 establish and enforce minimum standards for
the local delivery of criminal trial defense services providing
constitutionally effective assistance of counsel to indigent adults
throughout this state and shall identify and encourage best
practices for delivering that assistance.
(4) 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.
(c) One member from a list of 3 names submitted by the supreme
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 shall serve as an ex
officio member of the MIDC.
(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 a salary 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 members constitutes a quorum for
the transaction of business at a meeting of the MIDC. A majority of
the 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.
(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 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 charged under section 4 of chapter XIIA of
the probate code of 1939, 1939 PA 288, MCL 712A.4, 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,
and should be adequately funded in order to fulfill their role.
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.
(c) Indigent adults 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.
(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, 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 a
rate of $7.25 per capita, whichever is greater. If additional
funding is necessary in order to bring a local unit of government's
delivery of indigent 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 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.
(3) The MIDC shall directly 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.
(4) If a local unit of government requests a hearing under
subsection (3), 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.
(5) If, after the time allowed under subsection (4), a local
unit of government fails to comply, the MIDC shall provide direct
indigent criminal trial defense services at state cost to that
local unit of government.
(6) 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 the cost of
providing criminal trial defense services to indigent adults from
any state payments to that local unit of government.
(7) 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.