HOUSE BILL No. 5804

 

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.