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Oakland County v. State

Court of Appeals of Michigan

July 17, 2018

OAKLAND COUNTY, Plaintiff-Appellant,

          Court of Claims LC No. 17-000216-MZ

          Before: Ronayne Krause, P.J., and Gleicher and Letica, JJ.

          PER CURIAM.

         Oakland County objected to the Legislature's amendment of an act creating the Michigan Indigent Defense Commission (MIDC), giving authority to the Executive Branch, through the Department of Licensing and Regulatory Affairs (LARA), to set standards for attorneys appointed to represent indigent clients. The bulk of the county's argument revolved around its claim that the MIDC Act and the standards approved by LARA usurped the judiciary's power to manage and control the court system and the legal profession. Although there is some overlap, the limited sharing of powers envisioned by the act does not offend the separation of powers clause of Const 1963, art 3, § 2 and the county is not otherwise entitled to relief. We therefore affirm the Court of Claims' summary dismissal of Oakland County's suit.

         I. BACKGROUND

         In 2011, the governor signed an executive order establishing an advisory commission on the defense of indigent criminal defendants. Based on the commission's report, the Legislature passed 2013 PA 93, the MIDC Act. MCL 780.981 et seq. The act created the MIDC and designated it as an autonomous entity within the judicial branch, tasked with proposing minimum standards for providing effective assistance of counsel for indigent criminal defendants.

         On January 4, 2016, the MIDC submitted its initial set of four standards to the Michigan Supreme Court for its review. The Supreme Court conditionally approved these standards, "subject to and contingent on legislative revision of the MIDC Act to address provisions that the Court deem[ed] to be of uncertain constitutionality." AO No. 2016-2, 499 Mich. xcviii, xcviii-xcix (2016). Specifically, the Court was concerned that the creation of an "autonomous entity" within the judicial branch unconstitutionally usurped its exclusive authority "to exercise general supervisory control" over judicial branch employees. See Const 1963, art 6, §§ 1, 4, and 7. The Court opined that the act's definition of "indigent criminal defense system" (ICDS), combining the trial court with its nonjudicial local government, and allowing the autonomous MIDC to "[d]evelop[] and oversee[] 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," and "to assure compliance with the commission's minimum standards, rules, and procedures" "might contain enforcement mechanisms" that usurp the Supreme Court's control over the court system. Const 1963, art 6, § 4. Moreover, the Court interpreted certain act provisions as "arguably allowing the MIDC to regulate the legal profession, a power granted to the judiciary by Const 1963, art 6, § 5. The Court indicated that its conditional approval would be automatically withdrawn on December 31, 2016 if the Legislature did not act. AO 2016-2, 499 Mich. at xcix-c.]

         The Legislature thereafter amended the MIDC Act, effective January 4, 2017. 2016 PA 439. The Legislature removed the MIDC from the judicial branch and placed it within LARA, an executive branch agency. MCL 780.985(1); MCL 780.983(b). The Legislature also revised the definition of an ICDS to mean only the local unit of government that funds a trial court (the funding unit), rather than the funding unit and the trial court. MCL 780.983(g). The amendments further provided that the minimum standards enacted under the MIDC Act shall not infringe the Supreme Court's authority under Const 1963, art 6, §§ 4 and 5. MCL 780.985(3); MCL 780.991(3)(a).

         State Court Administrator Milton L. Mack, Jr. subsequently advised the state's chief judges that the act's amendments "appear to address issues of uncertain constitutionality that were raised by the Court." However, Mack asserted, because the legislative amendments did not take effect by December 31, 2016, the Supreme Court's conditional approval of the MIDC's proposed standards had expired.

         On May 22, 2017, LARA approved the MIDC's proposed minimum standards for guaranteeing the delivery of indigent criminal defense services (substantively the same standards that had been conditionally approved by the Supreme Court). Standard 1 provided minimum standards for continuing legal education (CLE) and attorney training. Standard 2 set standards for an attorney's initial client interview. Standard 3 described standards for investigations and for certain expert witness matters. Standard 4 provided minimum standards for defense counsel's first appearance and subsequent appearances at critical stages in the proceedings. The act required the ICDSs to submit plans to comply with the act and the standards by November 20, 2017, and gave the MIDC 60 days to review the plans.

         On June 20, the MIDC published "A Guide for Submission of Compliance Plans, Cost Analyses, and Local Share Calculations" "to assist with the preparation of the cost analysis and compliance planning for delivering indigent criminal defense services." The Guide provided that the ICDSs must address "each standard individually" and offered "General Guidelines for Compliance Plans." The MIDC also published a "Compliance Plan for Indigent Standards 1-4" containing further "instructions" and "guidelines" regarding the filing of a plan for compliance with the indigent defense standards.

         II. THE LAWSUIT

         Oakland County filed suit, asserting constitutional challenges to the MIDC Act and the approved indigent criminal defense standards. As the trial court summarized the complaint:

Count I alleges that the MIDC Act is "facially unconstitutional" under Const 1963, art 3, § 2 - the separation of powers clause - because "it empowers LARA to usurp the Michigan Supreme Court's constitutional authority to regulate and enforce minimum qualifications and professional standards for attorneys who represent indigent criminal defendants." Count II alleges that both the MIDC Act and the approved standards . . . are "facially unconstitutional" under Const 1963, art 6, § 5 because "they usurp the Michigan Supreme Court's constitutional authority to promulgate rules governing practice and procedure in Michigan Courts." Count III sounds a similar refrain, with the exception being that it asserts the MIDC Act and the approved standards violate Const 1963, art 6, § 4. Lastly, Count IV alleges that the MIDC promulgated "mandatory rules and procedures" in violation of the [Administrative Procedures Act (APA)]. The complaint sought declaratory relief and a stay of the enforcement of the approved standards.

         In lieu of an answer, defendants sought summary disposition. Defendants denied any conflict between the act and standards and the Supreme Court's constitutional authority. The county asserted that the standards did not regulate the practice and procedure of attorneys and trial courts; rather, the standards regulated the funding units who must pay for ICD services. The act prohibited any minimum standards infringing on the Supreme Court's authority, defendants continued. Likewise, the MIDC's minimum standards regulated the funding unit, not the conduct and qualifications of attorneys, the practice of law, or the administration of justice by courts. Defendants argued that the Guide was not subject to the APA because it was not a mandatory rule. Defendants further contended that Oakland County's challenge to possible future standards was not yet ripe.

         In response to defendants' motion and its own cross-motion for summary disposition, the county contended that the act allows the MIDC to regulate the legal profession, a power granted to the judicial branch, in violation of the separation of powers clause found in Const 1963, art 3, § 2. The act and the LARA-approved minimum standards unconstitutionally allowed an executive branch entity to regulate practice and procedure in the courts, the county asserted. And overall, the act and standards infringed the Supreme Court's exclusive authority to supervise the administration of justice in all state courts under Const 1963, art 6, § 4. The county opined that Standard 4 impermissibly created a new right to appointed counsel at arraignment. The county alleged conflicts between the Michigan Court Rules and the act and standards regarding indigency determinations and counsel appointments. Specifically, the county complained that the act took indigency determinations away from the courts and placed them with the funding units. The county argued that Standard 3 usurped the judiciary's authority to set standards for the appointment of expert witnesses. Finally, the county contended that the guidelines promulgated by the MIDC were more than educational and contained compulsory provisions, requiring the MIDC to follow the APA before adopting them.

         In response, defendants added that Standard 4 did not create a new right to counsel at arraignment or conflict with the Michigan Court Rules. Standard 3, which required ICDSs to fund reasonable requests for experts as required by law, likewise did not conflict with the United States Constitution, criminal statutes, or rules of evidence, defendants contended. Overall, defendants emphasized, the MIDC Act was specifically amended to address the Supreme Court's constitutional concerns.

         As noted, the trial court granted summary disposition in defendants' favor and dismissed Oakland County's suit. The court rejected the county's facial challenge to the constitutionality of the MIDC Act. The trial court recognized the Supreme Court's constitutional authority to regulate the practice of law, the conduct of attorneys, and the conduct of court proceedings. But the court noted that the constitution does not require an absolute separation of powers, allowing some overlapping of functions, responsibilities, and powers between branches. Regarding the county's claim that the MIDC Act improperly permitted LARA to regulate the conduct and minimum qualifications of attorneys who represent indigent criminal defendants, the court noted that the county merely pointed to the minimum standards. However, the standards implemented by LARA do not aid in determining whether the MIDC Act is facially unconstitutional. The county's separation of powers argument lacked merit for that reason alone.

         Moreover, the court continued, the MIDC Act at most provided for a permissibly limited sharing or overlapping of functions. The act regulated the funding units, rather than trial courts themselves, and thus did not encroach on judicial authority. The act expressly recognized the Supreme Court's constitutional authority over court practice and procedure. It did not permit the MIDC to require the judiciary's compliance with the minimum standards and did not attempt to control what happens in court. The MIDC had no authority over who becomes a licensed attorney; the act merely addressed a county-controlled system to ascertain indigency and provide qualified attorneys to indigent defendants. Court precedent, rather than separate MIDC standards, would be used to determine the quality of representation to be required by ICDSs.

         The trial court discerned no conflict between the MIDC Act and the Michigan Court Rules. MCL 780.991(3)(a) provided that nothing in the act "shall prevent a court from making a determination of indigency for any purpose consistent with [Const 1963, art 6]." Further, MCL 780.991(3)(a) stated that "[a] trial court may play a role in this [indigency] determination as part of any [ICDCs's] compliance plan under the direction and supervision of the supreme court. . . ." Accordingly, courts were not prevented from making a determination of indigency for any purpose. In the absence of an inherent conflict between the act and a court rule, the court found it is unnecessary to determine whether judicial authority has been infringed or supplanted.

         The trial court next addressed Oakland County's challenges to the minimum standards. In relation to the county's contention that Standard 4 improperly required a defendant to be represented at arraignment, the court noted that the federal constitution does not require the appointment of counsel at the arraignment, but nothing prohibits it. A state may afford its citizens greater rights than those required at the federal level. The court determined that the Legislature had done exactly this in MCL 780.991(3)(a), by providing that a determination of indigency shall be made "not ...

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