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Ottawa Public Defender Plan - Approved

Public Defender Plan - Approved C20 2015-041; rescinds 2003-06J 058 2015-09J; rescinds 2003-03J P70 2015-02J; rescinds 2003-02J

This is to advise that we have reviewed the above referenced administrative order and find that it confonns to the requirements of MCR 8. I 12(B). This order is being accepted and filed until advised by your court of any change.

Jill Booth Region V Administrator P.O. Box 30048 Lansing, MI 48909 517-373-8679

This message has been prepared on computer equipment and resources owned by the Michigan Supreme Court. It 1s subject to the terms and conditions of the Court's Computer Acceptable Use Policy.

12/15/2015

EDWARD R. POSTCHIEF CIRCUIT JUOGE- TRIAI DMSION

JON HULSINGCIRCUIT JUDGE - TRAL DIVBION

STATE OF MICHIGAN

JON A. VAN ALLSBURGCIRCUIT JUOGE. FATILY DMSION

XENT D. ENGLECIRCUIT JUOGE - FA{ILY OMSION

ARK A. FEYENCHIEF PROAAIE JUDGE - FAf,ILY DMSION

TWENTIETH JUDICIAL CIRCUIT COURTOTTAWA COUNTY

tiq,*

'#IKEVIN J. BOWLING, JD

CIRCUIT COURT AOTIINISIRAIOR

Local Administrative Order

20n Circuit Court 2015-04J58n District Courr 2015-09J

Ottawa County Probate Court 2015-02J

PUBLIC DEFENDER PLAN(Rev. 10/15)

Rescinds: LAO C20 2003-061; D58 2003-03J; P70 2003-021

Principle l: The public defense functions, including the selection, funding, and payment ofdefense counsel is independent.

Due to the size and current caseload ofthe Ottawa County Courts an independently Iirnded andoperated public defender office is not warranted. To ensure the public defense function isindependent from political influence and subject to judicial supervision only in the same mannerand to the same extent as retained counsel, public defender appointments shall be made by thePublic Defender Coordinator in a process which is independent of the judiciary. The actualappointment process implemented by the Public Defender Coordinator will be designed to ensurefair and impartial distribution of cases to appropriately qualified attomeys.

Attomeys interested in representing indigent parties may submit a cover letter and resume to the

Public Defender Coordinator. The cover letter should indicate the attomey's interest inappointment in the Circuit Court, District, and/or Probate Court. The cover letter should also

state the Ottawa County court locations where the attomey desires appointments (i.e., Grand

Haven, West Olive, Hudsonville, and Holland). The resume should clearly indicate counsel's

ability; training and experience to provide quality indigent representation (see Principle 6). Ifadditional information is required the Public Defender Coordinator may interview the interested

attomey.

O{tawaCountyCourfiouso.4l4washingtonstrresqSu[o:]00'GrandHaYen,l{lchlgar49it'17Pione: 815{,16{320 . Fax: 616816{179 Wobolt : www.mlottewa.org

IT IS ORDERED:This administrative order is issued in accordance with Michigan Court Rule 8.123, with thepurpose ofdescribing the 206 Circuit, 58s District, and Ottawa County Probate Courts'procedures for appointing and compensating counsel who represents indigent parties in OttawaCounty. The Public Defender Plan, described below, is structued in accordance withthe ElevenPrinciples ofa Public Defense Delivery System as adoptedby the State Bar of MichiganRepresentative Assembly, April 2002 (Attachment 1) and is consistent with 93 PA2013,Michigan Indigent Defense Commission Act (Attachment 2). Further procedural direction forimplementation ofthis plan is contained in the Ottawa County Public Defender Procedures.

Annually, during the September quarterly judges meeting the Public Defender Coordinator willseek the advice and consent of all judges regarding the addition and retention of attomeys to thepublic defender roster. In preparation for the September quarterly judges meeting, it isanticipated the judges may choose to interview attomey applicants ifnecessary to determinequalifications. Thisjudicial participation is specifically authorized by 93 PA 2013, Sec. 11. ThePublic Defender Coordinator may seek the advice and consent ofthejudges more frequently ifnecessary to maintain an adequate roster of attomeys.

In addition to the public defender roster maintained for criminal cases, the Family Division oftheCircuit Court will negotiate contracts with a lawyer or law firm for the representation of childrenin delinquency cases, as well as children and parents in child protective proceedings.Representation ofchildren in child protective proceedings may be provided by an attomeyGuardian Ad Litem. The competitive bidding process for Family Division contracts will followOttawa County policy.

Funding for the public defense function will be provided through the standard Ottawa Countybudgeting process with a general fund appropriation to each trial court. Payment of defensecounsel will be handled by the Public Defender Coordinator in accordance with the OttawaCounty Public Defender Procedures.

Plirei@: ll/here the caseload is sulJiciently high, the public defense delivery systemconsists of both a defender ofJice and the active participation of the private bar.

Due to the current caseload size in Ottawa County it is neither cost effective nor necessary tomaintain both a public defender office and a roster of private attomeys to provide publicdefender services. As noted above, necessary public defender services can be adequatelyprovided by appointment or conffactual anangement through the Public Defender Coordinator.

Princiole 3: Clients arc screened for eligibility, and defense coansel is assigned and notiJiedof appointment, as soon as feasible afler clients'arrest, detention, or requestfor counsel

The defendant will be advised ofhis right to counsel and opportunity will be provided for a

defendant to request court appointed counsel, for a court determination ofindigency andappointment ofcounsel no later than arraignment on the charge(s) and early enough forappointed counsel to render effective assistance to the defendant at all subsequent critical stages

of the criminal proceedings. Counsel will be immediately notified of the appointment and the

next court date and, if defendant remains incarcerated, instructed to meet in a timely fashion as

set forth in this order. . Once an appointment is made, financial screening is completed by courtstaff to determine the client's ability to reimburse all or part of court appointed counsel expenses.

P-tlUiMt Delense counsel k provided sufficient time and a conJidential space with which

to meet $'ith the client.

Considering counsel appointments are made upon request (see Principle 3) there is sufficient

time for counsel to meet with clients prior to any scheduled hearings/trials. Each court location

also has identified attomey/client meeting space, which is confidential while being in close

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proximity to assigned courftooms. In addition, the Ottawa County Jail has confidentialattomey/client meeting space that is available to court appointed counsel.

AireiM: Defense counsel's workload is controlled to permit the rendering of qualityrqnesentation,

To ensure court appointed counsel is able to render quality representation, the Public DefenderCoordinator will monitor all appointments so that total appointments to any single attomey doesnot exceed the National Advisory Commission Standards regarding public defender workload.These limitations are frrther described in Standard 13.12 Workload ofPublic Defenders. seebelow.

Standard l t2 ndersr

The caseload ofa public defender ofiice should not exceed the following: felonies perattorney per year: not more than 150; misdemeanors (excluding trffic) per attorney peryear: not more than 100; juvenile court cases per attorney per year: not more than 200;Mental Health Act cases per attorney per year: not more than 200; and appeals perdttorney per yedr: not more than 25.

For purposes of this standard, the term csse means a single charge or set of chargesconcerning a defendant (or other client) in one court in one proceeding. An appeal orother actionfor postjudgment review is q separate case. If the public defenderdetermines that because ofexcessive workload the assumption ofadditional cases orcontinued representdtion in previously accepted cases by his ffice might reasonably beexpected to lead to inadequate representqtion in cases handled by him, he should bringthis to the attention of the court. If the court accepts such assertions, the court shoulddirect the public defender to refuse to accept or retain additional cases for representationby his ffice.

Princiole 6: Defense counsel's ability, training, and experience match the complexily of thecdse.

Minimum standards and qualifications for misdemeanor and non-capital felony court appointedcounsel include the following (See Principle 6):

o Licensed to practice law in the State of Michigan;. Demonstrated skill and knowledge to adequately represent clients;o Ability to dedicate required time for scheduled court appearances;

o Available office facilities in or near Ottawa County where appointed counsel can meet

with clients;o Understands the obligation to refuse appointment if unable to provide ethical, high

quality representation: and

o Accept electronic service and communication ftom the courts.

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In addition to the minimum qualifications, attorneys appointed to capital cases shall demonstratecounsel's ability, training and experience to match the complexity ofthose cases as required byPrinciple 6.

Princiole 7: The same attorney continuously represents the client until completion of the case.

As appointments are made, the Public Defender Coordinator will ensure vertical representationin all cases unless there is a valid reason for disqualification or substitution of attorney. All courtappointed counsel must understand that except for emergencies, substitute counsel should not beused as a routine method to handle assigned cases.

Pjrel@: There is parity between defense counsel and the prosecution with respect toresources and defense counsel is included as an equal partner in the justice system"

Historically, defense counsel has been treated as an equal partner in thejustice system as

evidenced by hourly rates of reimbursement, which are among the highest in the state ofMichigan. In addition, judges have reported that requests for reimbursement of extraordinaryexpenses (e.g., expert and investigative services) are routinely granted. In addition to the rosterattomeys, contract attomeys have reasonable expenses and CLE included in their contracts.

Princiole 9: Defense counsel is provided with and required to afrend continuing legaleducation.

Since most defense counsel included on the criminal, family division and probate rosters areindependent legal professionals it is assumed they will be responsible for their own professionaldevelopment. Neither the State Bar of Michigan nor the Michigan Supreme Court has institutedcompulsory continuing legal education requirements. Consequently, individual attomeys areexpected to determine what CLE will be most beneficial to their practice and will schedule aminimum of eight training hours per year. Currently, there are CLE programs available fordefense counsel through a number of organizations, including CDAM, ICLE, State Bar ofMichigan, MSU Chance at Childhood Program, SCAO, etc. The Ottawa County Courts willsupport CLE for defense counsel through schedule flexibility that will allow individualparticipation in appropriate courses. To monitor CLE participation, the Public DefenderCoordinator will annually survey all defense counsel regarding continuing education and willmaintain records regarding program attendance as part of the attomey evaluation.

Due to the minimum qualification requirements for appointment and the Public DefenderCoordinator's annual evaluation process ofeach attorney (including CLE hours), all attomeyslisted on the approved roster will necessarily demonstrate the required knowledge ofthe law,

forensic and scientific issues, technology and advocacy to provide effective assistance ofcounsel.

Principle 10: Defense counsel is supemised and systematically reviewed lor quality andefliciency according to nationally and locally adopted standards.

The Public Defender Coordinator \ rill, on a regular basis, informally solicit feedback fromjudges and court staff regarding appointed attomey performance. In addition, the Public

befinder Coordinator will conduct a formal annual evaluation ofall assigned counsel including:

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questions regarding timeliness, adequacy ofpreparation, legal knowledge, communicationability, adherence to court scheduling policies, adequacy of client contact, and efficiency. At aminimum judicial feedback is required for appointed counsel evaluations; however, the PublicDefender Coordinator is encouraged to seek additional evaluative comments from otherattomeys, court staff, and court users who regularly interact with appointed counsel. The annualevaluation will also include notations regarding any client complaints received by the PublicDefender Coordinator within the past year.

This evaluation data will be presented to the judiciary during the regular quarterly judgesmeeting held in September. Based on evaluation results and the advice/consent ofthejudges thePublic Defender Coordinator may prep,re a summary of an attomey's evaluation suggestingimprovements and/or comments about performance.

In addition to the evaluation process described above, the Public Defender Coordinator mayfollow the Public Defender Procedures (Sec. 2.f.) to suspend or remove an attomey from a courtappointed counsel roster or a court contract ifthe attomey no longer meets the qualificationstandards required by this local administative order. Any such removal may only be made withthe majority approval ofthe chiefjudges. Specific causes for removal of an attomey from theroster or contractual service include, but are not limited to, the following:

o Violations of the Michigan Rules of Professional Conduct (as determined by theAttomey Grievance Commission);

o Inappropriate advances or comments ofa sexual nature to clients, other attomeys orcou( staff;

. Inappropriate anger directed to clients, other attomeys or court staff;o Substance abuse that effects the attomey's ability to represent clients;o Soliciting payment from clients for professional services paid for by the Court; and. Poor performance and./or consistent refusal of court appointments.

Pjre,lM: lYhen there is a defender ofJice, one function of the ollice will be to *plore andadvocate for programs that improve the system and reduce recidivkm-

Since a public defender office is not envisioned in this plan, this principle is not directlyapplicable. However, the Ottawa County Community Corrections Advisory Board (whichincludes court, prosecutor, and public defender members) regularly explores and advocates forprograms that improve the criminal justice system and aim at reducing recidivism.

In addition to the details outlined in the Eleven Principles noted above, this Public Defender Plan

is intended to fully comply with Michigan Court Rule 8.123, including the maintenance ofelectronic reports of "total public funds paid to each attomey for appointments by that court",which will be available at the trial court for inspection by the public, without charge'

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Effective Date:

Date: lL-,) -t{Hon. Edward R. Post, Chief Judge20th Circuit Court

Date: lZ,/'/f

ox", J2-ft45

Hon.5gth District Court

Hon. Mark A. Feyen,Ottawa County Probate

Chief Judge

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Attachments

1 . SMB, Eleven Principles of a Public Defense Delivery System, April2002

2. 93 PA 2013, Michigan Indigent Defense Commission Act

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Attachment 1

SBM, Eleven Principles of a Public DefenseDelivery System, April 2002

8

E,Ltr,Vtr,NPRINCIPLtr,Sof a Public Defense Delivery System

Adopted fu tbe State Bar of Michigan Rtpnsentatiue Assemb!, April 2002

NIII

9

State Bar of Michiganww.v.michbar.org

Michigan Public I)cfcnse'lhskforcervrvrv. m ipu b I i cdc t-cn s e. org

Oampaign frrr-f usticc-lO3 Sclmour, Suitc 2Ol

l.rnsing, \ll {8933inf<>(t rni jtrsticc.org

rvrvs . miiusticc.org

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I,llcrcn Principlcs of a Public l)cfcnsc l)clivcry S1'stcmr

1 .I}," prbl.i. d.f"nse function,

includiug the selection, funding, andpaymcnt ofdefense counsel,: is

indcpendent.

aZ \\here the caseload is

sufficientlv high,' the prrblic dcferrscdeliven svstem consists ofbotlr a

defender office and the actireparticipation of the privetc bar.

3 ,r["n,. arc scrcened for

cligibiliw,ir end defense counsel isassigned and notificd ofxppoirtment, as soou as feasibleafter clieuts' arrest, detention, orrequest for counscl.

4 ,r.r",r." ..r.rn."l is pro'ided

srrfficicnt tirnc arxl a c<>rfidcntialspacc vith s'hich to rncct s ith thcclicnt.

5 ,r"r.,'r." .,r,,n."I's s'orkload is

conlrolled to pennit thc renderingof qualitt rcprcsctrtatiol.

6 ,r"f"r." .,run."l's abilitv,

training, and cxpcricrrce match tlrccomplesitv of thc case.

7 *" .^-" attomev continuousll

rrpresents the client untilcompletion of the cese.

8 .ll".. i, parity between defense

counsel and the prosecution rvithrespect to rcsourccs and deGnsecounsel is included as an equalpartner in the iustice svstem.

9 ,"f",rr. ..ru,rr.l is provided

s'ith and rcquircd to attendcontinuing legal cducation.

L 0 ,r"r"nr" ..,u,rscl is supcniscd

and systematicallv reviewed forqualitr and efficiency according tonationdlv and locallv adoptedstandards.

L 1 t*run thcrc is a defendcr

olfice, one fturction of the officen'ill be to explorc and advocate forprrlgrams that impmve the svstcmend rcducc recidirism.

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Eleven Principles of a Public Defense l)elivery S)'ste-,

With (onrntentaty

l. Thc public dcfcnsc funcion, including rhc sclcction, frrnding, end prymcnr of dcfrnrccounscl,r is indcpcndenr, The public deEnsc lirncton should be indcpendcnt trom polrricalintluerrce and subject to judiciel supcrvisron only in thc seme manncr and to thc sarnc cx(cnt as

retarned counsel.r To sefegrard indeptn&nce end to promotc cflicicncy and qurlity ofservices, nnindependent boerd composcd oirnomeys end non attorneys should ovcrsec dcfendcr, csrigncdcounsel. or contrect systems.t Removing ovcrsight from thc iudiciary cnsurcs iudicil indcpcn&nccfrorn undue politicalpressurcs rnd is an importaot meenr ofirnhcring tlrc indcpcndcncc ofpublicdcfense.r !(,tere there rs r &fender otlrce, thc sclcction of the chrfdefendcr rnd rrrffshould bcmadc on the besis ofrnerit, end recnrirnent ofattomcys shouH involv€ spccul cfforts rimcd.tnchicving dive rsitl in rnomey steff.'Since thc rcrponsibility to provi& &fensc scn'iccs rcsrr wrththe state, there should be state funding nnd a stete*ide stnrcnrre responsible for ensuring unilormquality statewrde.;

2. Vhcrc thc cecclord is sufficicnrly high,' thc public dcfcnrc dclivcry ryrtcm conriro ofborh e dcfcnder offcct end thc ective prnicipation ofthc privatc b.r,Historically, i\'lichigrn's privnte bnr penicipation her inchrdcd pan tunc dcfenders, rssigncd counselphn. or contracts for sen'ices.1' l{owevrr. e "nrixcd sysrcm" ofe dcfendcr otlice rnd an eppointcdcounsel systcrn provrdcs the most rffccdvc .nd steble svstcm over time. The defendcr offrcc cenprovidc e basc for treining progrems, rnoton banks. invcstigltors, end other suppon servrccs.Strbstantial invoh'ement ofthc pnvntc ber increrses indcpcndcncc, provi&s support for lndinformation about thc systcm outside thc &fendcr of6ce, end is e tlicf velve for conflrcts rndoverloed in the systmr. 1'tre appointrncnt process ofthr ,ttorne)r should ncvcr be ld hoc,t' brrtshould b< accordurg to e coordilrtcd phn directcd by l ldministntor who rs rlso ,n attorneyfnmilier with thc vancd rcqui..mcnts ofp.rctice in thc jurisdicuon.':

.i. (llicnrs erc scrccncd for eligibility,s end dcfcnsc counscl is essigncd end notificd ofappointmcnt, as soon as fcasiblc aficr clicntsr arresa, dctcntion, or rcquc3t for courllcl.(lorrnscl shorrld bc lirrrrrshcd an<l counstl notiticd ol'rhc apporntrncnt, rrsrrally u'rthin l.l hours ol-"tlrt. rrrtst. <lt.trrrtiorr or rt'r1rk st.:r

.1. Defcnsc counscl is providcd sufficicnr timc .nd r confidcrriel rpec-c wirh whieh ro mcerwith rhc clicnr, Counsel should inten'iew thc clien( as soon ns practrcrbk beforc thc prclunrnrryexeminrtion or thr rirl(hte.:i G'un3el shotrld hlvc con 6&nticl lcc.ss to the clirnt for thc fullcxchangc oflegll, proccdtrrrl end factual inlormatron betv't'cn counsrl and cLent." To cosureconfrdentiel comrnunicatrons, prilrlc mc.nirrg spacc should be aveilablc in lails. prisons. courthourcsr d other phccs whrrc &tindnnts must confer $ith counsel.rs

5. Defcnsc counsclrs lr'orkloed is conrrollcd to pcrmit lhc rcndcring ofquelitv,!prcacnt.tion, CoUnscl's workloed, rrrcluding eppointed end other work, should netcr bc to lcrgc

as ro rntrrfeft \'th the rendenngofqualq reprcsenmtion or lced to thc brenchofcthrcrloblgrtions, and counscl s obhgatrd ro decl e rppointrncnts ,bovt such levcls.r' ln dre abscnce of

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locel standerds, nstional caseloed strnderds should not be cxcecded,' brrt the concept ofworkload(i.e., ceselord edlusted by factoas nrh rs cr5e complexity, suppon servicer. rnd rn rttomey'snonrepresenririonrl duties) is e more rccurate mensurement.rr

6. Dcfcnsc counrcl'r ebiliry, tnining, end .o.pcri.occ m.ach thc complcxiry ofrhc cerc.Counscl shotrld n<ver bc rssigned r crsc thrt counscl lacks th€ rxpcncnce or training to hendhcompetently,.nd counscl is obligrted to tfus. eppointmcnt ifunrblc to provdc ethtel, hrgh qualityrePrcscnlatron."

i- Thc semc rttomcy cordnuourly rcprc3cnr thc clicnr undl conplction ofthc crrc. Oftcnreferrcd to as "verticrl rcprcscntltion," thc sarnc cttomcy rhould continuously rcprcscnt thc clintfrom initirl essignment through the toel end rcntenciflg.ri Thc .ttomcy essgncd for thc direct eppcrlshould represent lhc clint throughout drc dircct eppeal. Exccpt for cmrrgcncas, substitutc orstlnd in counsel should not bc uscd es s routinc mcthod to hendlc .ddition.l c.rcs. Thc clicnt rndthe courl ere entitlcd lo heve the rpproved e(omey prcp.(c.nd hendle thc clsc.

8. Thcrc is parity bct*ccn dcfcnrc couttlcl end thc prorccution with rcrpccr to rcrourccsrnd dcfcnsc couo.el i. includcd .r err cqual panna. in rha iurticr ryrrcm. l\rbhc dcfcnscshould penicipate as ro cquel parmcr in unproving thc justice systcm."' There shouH be prnty of$orkload, sslarics cnd other resourc.. lxtwecn prosccution rnd dcfcnse rn cnminllcgses in whichthe eccused hes becn provided counscl .t public cxpcnre.rl .i\ssigncd counrcl shor.rld bc peid rreasoneble fcc. tnkingoverhc.d into considcrrtion, .nd shouH b( rcinburscd tbr cxpenscs.tt Whcrethey esist, conrncts vith priv.te .ttorneys tbr public &fcnrc sca'ices must ncvcr bc ler primenly onthe basis ofcost; lnd should speci$ pcrform.ncc rcquirements rnd the nntripnted workloed, andprovide for conringencies such es €xcess c.scs, high profrle or complex casrs;' cnd funding forc:rpe n rnd rntestrgetrve scn'iccs.3

9, Dcfcnsc counsel is providcd wirh end rcquircd to .ttcrrd condnuing lcgal cducaaion,Corrnsrlend stetT providrng defensc scrvres should h.vc system.tr and comprchcnsive rrrrnirg.ppropflatc to their arers ofprrctice end rt lcrst equel to thet rcceivcd by prosecutors.N

10. Deferrsc counrel is iupe ircd .nd svstcm{ic.ll!, .!r'ic*cd for quelity end eflicicncyecc.onding to netionelly end locelly edoptcd srandards. 'l'hc dcfendrr ot'ficr (roth profcssionclxod suppo( sMfl), assrgncd counrcl. or contrxcl dct'ende.s should be strpcn iscd and pcriodicrllyer.ahrnlcd for cofirpetence aod effrciency.r

I l. Vhcn rhcrc is a dcfcndcr ofticc, onc fuoction of rhc omcc $'ill bc ro cxplorc end e&ocercfor progremr rher irnprovc thc 3tltcm .nd rcducc rccidivism. The delinsc rnomey ir in a

unlque phcc to nssist clients, cornrnunitics and thc syrtcm by bccoming involvcd in the desgn,rmplerDcrrution rnd revrcw oflocel progrenrs surrd to both rrpodog thr hamr and rertoring thcdrli-rrdrnt to e productrtc. crrme titc lli rn socrn.

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NO'I'I,,SI Th. Rcp.6.nt t!! Ari.nbly of dE sr.rc B.r of Midligm .ddpr.d rh. bold Lft., of dE 'EL!.i l@r' (i.<., DorindudirB c6rurrnl.ly) @ April ,, 2(x)2.

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4 E.dr bor.d 3hodd b. @Bi,rar rith arirrl !r.rd.r&. NSC, 'zpz norc 1 cuiLl;G :. lo-2. 13; ABA '4r,

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t4

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l5

Attachment 293 PA 2013, "Michigan Indigent Defense

Commission Act"

16

ActNo.93Public Acts of 2013

Approved by the GovemorJuly 1,2013

Filed with the Secretary of StateJuly 1,2013

EFFECTIVE DATE: July l, 2013

STATE OF MICHIGAN97TH LEGISLATURE

REGULAR SESSION OF 2013

Introduced by Reps. McMillin, Lipton, Heise, Lyons, Haveman, Yonker,Muxlow, Walsh, Callton, Cavanagh, Roberts, Townsend, Darany, Irwin, Singh,Howrylak, Somerville, Dillon, Hovey-Wright, Brown, Ananich, Hobbs, Durhal,Switalski and Oakes

ENROLLED HOUSE BILL No. 4529

AN ACT to create the Michigan indigent defense commission and to provide for itspowers and duties; to provide indigent defendants in criminal cases with effectiveassistance ofcounsel; to provide standards for the appointment of legal counsel; toprovide for and limit certain causes of action; and to provide for certain appropriationsand grants.

The People of the State of Michigan enact:

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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:(l) An individual 17 years ofage or older.(ll) An individual less than 17 years of age at the time of the commission of a felony ifany 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, }l4CL712A.4, to waive jurisdiction to try the

individual as an adult and upon granting a waiver ofjurisdiction.(B) The prosecuting attomey designates the case under section 2d(l ) of chapter XIIAof the probate code of 1939, 1939 PA 288, MCL 712A.2d, as a case in which thejuvenile is to be tried in the same manner as an adult.

(C) During consideration ofa request by the prosecuting attomey under section 2d(2)of chapter XIIA of the probate code of 1939,1939 PA 288, },lCL7l2A.2d. that thecourt designate the case as a case in which the juvenile is to be tried in the samemanner as an adult.(D) The prosecuting attomey authorizes the filing of a complaint and warrant for aspecified juvenile violation under section I f of chapter IV ofthe code of criminalprocedure, 1927 P A 17 5, ,}dCL 7 64.1f.(b) "Effective assistance ofcounsel" or "effective representation" means legalrepresentation that is compliant with standards established by the appellate courts ofthis state and the United States supreme court.(c) "Indigent" means meeting I or more of the conditions described in section 11(3).(d) "Indigent criminal defense services" means local legal defense services providedto 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 individualmay be imprisoned upon conviction, beginning with the defendant's initial appearancein court to answer to the criminal charge.(li) The defendant is determined to be indigent under section 11(3).(e) Indigent criminal defense services do not include services authorized to beprovided under the appellate defender act, 1978PA 620, MCL 780.71 I to 780.719.(f) "Indigent criminal defense system" or "system" means either of the following:(l) The local unit of govemment that funds a trial court combined with each and everytrial court funded by the local unit of govemment.(il) If a trial court is funded by more than I local unit of govemment, those local unitsof govemment, collectively, combined with each and every trial court funded by thoselocal units of govemment.(g) "Local share" or "share" means an indigent criminal defense system's averageannual expenditure for indigent criminal defense services in the 3 fiscal yearsimmediately preceding the creation of the MIDC under this act, excluding moneyreimbursed to the system by individuals determined to be partially indigent.(h) "MIDC" or "commission" means the Michigan indigent defense commissioncreated under section 5.Sec. 5. (1) The Michigan indigent defense commission is created in the judicialbranch of state govemment.(2) The MIDC shall retain as an autonomous entity all statutory authority, powers,duties, functions, records, personnel, property, unexpended balances ofappropriations, allocations, and other functions, including the functions of budgeting,personnel, locating offices, and other management functions. Any portion of fundsappropriated to the MIDC that is not expended in a state fiscal year shall not lapse tothe general fund but shall be carried forward in a work project account that is incompliance with section 451a of the management and budget act, 1984 PA 431, MCL18.1451a, for use in the following state fiscal year.

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(3) The MIDC shall propose minimum standards for the local delivery of indigentcriminal defense services providing effective assistance ofcounsel to adultsthroughout this state. These minimum standards shall be desigrred to ensure theprovision of indigent criminal defense services that meet constitutional requirementsfor effective assistance of counsel. The commission shall convene a public hearingbefore a proposed standard is submitted to the supreme court. A minimum standardproposed under this subsection shall be submitted to the supreme court. Opposition toa proposed minimum standard may be submitted to the supreme court in a mannerprescribed by the supreme court, but a minimum standard that is approved by thesupreme court is not subject to challenge through the appellate procedures undersection 15. A proposed minimum standard shall be final when it is approved by thesupreme court. If the supreme court neither approves nor disapproves a proposedminimum standard within 180 days of its submission, then the standard is notapproved.(a) The MIDC shall identiff and encourage best practices for delivering the effectiveassistance ofcounsel to indigent defendants charged with crimes.Sec. 7. (1) The MIDC includes 15 voting members and the ex officio memberdescribed in subsection (2). The 15 voting members shall be appointed by thegovemor for terms of4 years, except as provided in subsection (4). Subject tosubsection (3), the govemor 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 chiefjustice.(d) Three members from a list of 9 names submitted by the criminal defense attomeyassociation 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 judgesassociation.(g) One member from a list of 3 names submitted by the state bar of Michigan.(h) One member from a list of names submitted by bar associations whose primarymission or purpose is to advocate for minority interests. Each bar associationdescribed in this subdivision may submit I name.(i) One member from a list of 3 names submitted by the prosecuting attomey,sassociation of Michigan who is a former county prosecuting attomey or formerassistant county prosecuting attomey.O One member selected to represent the general public.(k) One member selected to represent local units of government.(2) The supreme court chiefjustice or his or her designee shall serve as an ex officiomember of the MIDC without vote.(3) Individuals nominated for service on the MIDC as provided in subsection (1) shallhave significant experience in the defense or prosecution of criminal proceedings orhave demonstrated a strong commitnent to providing effective representation ii

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indigent criminal defense services. Of the members appointed under this section, thegovemor shall appoint no fewer than 2 individuals who are not licensed attomeys.Any individual who receives compensation from this state or an indigent criminaldefense system for providing prosecution ofor representation to indigent adults instate 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 sametime. The governor may reject the names submitted under subsection (1) and requestadditional names.(4) MIDC members shall hold office until their successors are appointed. The terms ofthe members shall be staggered. Initially, 4 members shall be appointed for a term of4 years each, 4 members shall be appointed for a term of 3 years each, 4 membersshall be appointed for a term of2 years each, and 3 members shall be appointed for aterm of 1 year each.(5) The govemor shall filI a vacancy occurring in the membership of the MIDC in thesame manner as the original appointment, except if the vacancy is for an appointmentdescribed in subsection (1)(d), the source of the nomination shall submit a list of 3

names for each vacancy. However, if the senate majority leader or the speaker of thehouse of representatives is the source of the nomination, I name shall be submitted. Ifan MIDC member vacates his or her commission before the end of the member'sterm, the govemor shall fiIl that vacancy for the unexpired term only.(6) The govemor 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 uponthe vacancy in the membership of the member appointed chairperson, the MIDC shallannually elect a chairperson from its membership to serve a 1-year term. An MIDCmember shall not serve as chairperson of the MIDC for more than 3 consecutiveterms.(7) MIDC members shall not receive compensation in that capacity but shall bereimbursed for their reasonable actual and necessary expenses by the state treasurer.(8) The govemor may remove an MIDC member for incompetence, dereliction ofduty, malfeasance, misfeasance, or nonfeasance in office, or for any other good cause.(9) A majority of the MIDC voting members constitute a quonrm for the transactionof business at a meeting of the MIDC. A majority of the MIDC voting members arerequired for official action of the commission.(10) Confidential case information, including, but not limited to, client informationand attomey work product, is exempt from disclosure under the freedom ofinformation act, 1976PA 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 ofminimum standards, rules, and procedures to ensure that indigent criminal defenseservices providing effective assistance ofcounsel are consistently delivered to allindigent adults in this state consistent with the safeguards of the United Statesconstitution, the state constitution of 1963, and this act.

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(b) Investigating, auditing, and reviewing the operation of indigent criminal defenseservices to assure compliance with the commission's minimum standards, rules, andprocedures. However, an indigent criminal defense service that is in compliance withthe commission's minimum standards, rules, and procedures shall not be required toprovide indigent criminal defense services in excess ofthose standards, rules, andprocedures.(c) Hiring an executive director and determining the appropriate number of staffneeded to accomplish the purpose of the MIDC consistent with annual appropriations.(d) Assigning the executive director the following duties:(l) Establishing an organizational chart, preparing an annual budget, and hiring,disciplining, and firing staff.(li) Assisting the MIDC in developing, implementing, and regularly reviewing theMIDC's standards, rules, and procedures, including, but not limited to, recommendingto the MIDC suggested changes to the criteria for an indigent adult's eligibility forreceiving criminal trial defense services under this act.(e) Establishing procedures for the receipt and resolution of complaints, and theimplementation of recommendations from the courts, other participants in the criminaljustice system, clients, and members of the public.(f) Establishing procedures for the mandatory collection ofdata concerning theoperation of the MIDC, each individual attomey providing indigent criminal defenseservices, each indigent criminal defense system, and the operation of indigent criminaldefense services.(g) Establishing rules and procedures for indigent criminal defense systems to apply tothe MIDC for grants to bring the system's delivery of indigent criminal defenseservices into compliance with the minimum standards established by the MIDC.(h) Establishing procedures for annually reporting to the govemor, legislature, andsupreme court. The report required under this subdivision shall include, but not belimited to, recommendations for improvements and further legislative action.(2) Upon the appropriation of sufficient funds, the MIDC shall establish minimumstandards to caxry out the purpose ofthis act, and collect data from all indigentcriminal defense systems and individual attorneys providing indigent criminal defenseservices to adults. The MIDC shall propose goals for compliance with the minimumstandards established under this act consistent with the metrics established under thissection and appropriations by this state.(3) In establishing and overseeing the minimum standards, rules, and proceduresdescribed in subsection (l), the MIDC shall emphasize the importance of indigentcriminal defense services provided to juveniles under the age of 17 who are tried inthe same manner as adults or who may be sentenced in the same manner as adults andto adults with mental impairments.(4) The MIDC shall be mindful that defense attorneys who provide indigent criminaldefense services are partners with the prosecution, law enforcement, and the judiciaryin the criminal justice system.

2t

(5) The commission shall establish procedures for the conduct of its affairs andpromulgate policies necessary to carry out its powers and duties under this act.(6) Commission policies shall be placed in an appropriate manual, made publiclyavailable on a website, and made available to all attomeys and professionals providingindigent criminal defense services, the supreme court, the govemor, the senatemajority leader, the speaker of the house of representatives, the senate and houseappropriations committees, and the senate and house fiscal agencies.Sec. 11. (1) The MIDC shall establish minimum standards, rules, and procedures toeffectuate the following :

(a) The delivery of indigent criminal defense services shall be independent ofthejudiciary but ensure that the judges of this state are permitted and encouraged tocontribute information and advice conceming that delivery of indigent criminaldefense services.(b) If the caseload is sufficiently high, indigent criminal defense services may consistofboth an indigent criminal defender office and the active participation of othermembers of the state bar.(c) Trial courts shall assure that each criminal defendant is advised ofhis or her rightto counsel. A1l adults, except those appearing with retained counsel or those who havemade 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 eligiblefor indigent criminal defense services.(2) The MIDC shall implement minimum standards, rules, and procedures toguarantee the right of indigent defendants to the assistance of counsel as providedunder amendment VI of the constitution of the United States and section 20 of article Iof the state constitution of 1963. In establishing minimum standards, rules, andprocedures, the MIDC shall adhere to the following principles:(a) Defense counsel is provided suffrcient time and a space where attomey-clientconfidentiality is safeguarded for meetings with defense counsel's client.(b) Defense counsel's workload is conholled to permit effective representation.Economic disincentives or incentives that impair defense counsel's ability to provideeffective representation shall be avoided. The MIDC may develop workload controlsto enhance defense counsel's ability to provide effective representation.(c) Defense counsel's ability, training, and experience match the nature andcomplexity of the case to which he or she is appointed.(d) The same defense counsel continuously represents and personally appears at everycourt appearance throughout the pendency ofthe case. However, indigent criminaldefense systems may exempt ministerial, nonsubstantive tasks, and he-arings from thisprescription.(e) Defense counsel is required to attend continuing legal education relevant tocounsel's indigent defense clients.(f)^Defense counsel is systematically reviewed at the local level for efficiency and foreffective representation according to MIDC standards.

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(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 anydefendant shall be made by the court not later than at the defendant's first appearancein court. The determination may be reviewed by the court at any other stage of theproceedings. In determining whether a defendant is entitled to the appointment ofcounsel, the court shall consider whether the defendant is indigent and the extent ofhis or her ability to pay. The court may consider such factors as income or funds fromemployment or any other source, including personal public assistance, to which thedefendant is entitled, property owned by the defendant or in which he or she has aneconomic interest, outstanding obligations, the number and ages of the defendant'sdependents, employment and job training history, and his or her level of education.(b) A defendant is considered to be indigent if he or she is unable, without substantialfinancial hardship to himself or herselfor to his or her dependents, to obtaincompetent, qualified legal representation on his or her own. Substantial financialhardship shall be rebuttably presumed ifthe defendant receives personal publicassistance, including under the food assistance program, temporary assistance forneedy families, medicaid, or disability insurance, resides in public housing, or earnsan income less than l40o/o of the federal poverty guideline. A defendant is alsorebuttably presumed to have a substantial financial hardship if he or she is currentlyserving a sentence in a correctional institution or is receiving residential treatment in amental 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 herparticular circumstances, including the seriousness ofthe charges being faced, his orher monthly expenses, and local private counsel rates would result in a substantialhardship if he or she were required to retain private counsel.(d) A defendant shall be responsible for applying for indigent defense counsel and forestablishing 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 criminalproceeding and material to the issue of his or her indigency shall be made under oathor an equivalent affirmation.Sec. 13. (1) A11 indigent criminal defense systems and, at the direction of the supremecourt, attomeys engaged in providing indigent criminal defense services shallcooperate and participate with the MIDC in the investigation, audit, and review oftheir indigent criminal defense services.(2) An indigent criminal defense system may submit to the MIDC an estimate of thecost of developing the plan and cost analysis for implementing the plan undersubsection (3) to the MIDC for approval. Upon approval, the MIDC shall award theindigent criminal defense system a grant to pay the approved costs for developing theplan and cost analysis under subsection (3).

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(3) No later than 180 days after a standard is approved by the supreme court, eachindigent criminal defense system shall submit a plan to the MIDC for the provision ofindigent criminal defense services in a manner as determined by the MIDC and shallsubmit an annual plan for the following state fiscal year on or before February 1 ofeach year. A plan submitted under this subsection shall specifically address how theminimum standards established by the MIDC under this act shall be met and shallinclude a cost analysis. The standards to be addressed in the annual plan are those thatthe supreme court approved not less than 60 days before the annual plan submissiondate. This cost analysis shall include a statement of the funds in excess of the localshare, if any, necessary to allow its system to comply with the MIDC's minimumstandards.(a) The MIDC shall approve or disapprove a plan or cost analysis, or both a plan andcost analysis, submitted under subsection (3), and shall do so within 60 calendar daysof the submission of the plan and cost analysis. If the MIDC disapproves the plan, thecost analysis, or both the plan and the cost analysis, the indigent criminal defensesystem shall consult with the MIDC and submit a new plan, a new cost analysis, orboth within 30 calendar days of the mailing date of the official notification of theMIDC's disapproval. If after 3 submissions a compromise is not reached, the disputeshall be resolved as provided in section 15.(5) The MIDC shall submit a report to the govemor, the senate majority leader, thespeaker ofthe house of representatives, and the appropriations committees ofthesenate and house ofrepresentatives requesting the appropriation of funds necessary toimplement the plan for each system approved by the MIDC. The information used tocreate this report shall be made available to the govemor, the senate majority leader,the speaker ofthe house of representatives, and the appropriations committees ofthesenate and house of representatives.(6) Except as provided in subsection (8), an indigent criminal defense system shallmaintain not less than its local share. If the MIDC determines that funding in excessof the indigent criminal defense system's share is necessary in order to bring itssystem into compliance with the minimum standards established by the MIDC, thatexcess funding shall be paid by this state. The legislature shall appropriate to theMIDC the additional funds necessary for a system to meet and maintain thoseminimum standards, which funds shall be provided to indigent criminal defensesystems through grants as described in subsection (7).(7) An indigent criminal defense system shall not be required to provide funds inexcess of its local share. The MIDC shall provide grants to indigent criminal defensesystems to assist in bringing the systems into compliance with minimum standardsestablished by the MIDC.(8) An indigent criminal defense system is not required to expend its local share if theminimum standards established by the MIDC -uy b. met foi less than that share, butthe local share ofa system that expends less than its local share under thesecircumstances is not reduced by the lower expendifure.

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(9) This state shall appropriate funds to the MIDC for grants to the local units ofgovemment for the reasonable costs associated with data required to be collectedunder this act that is over and above the local unit of govemment's data costs for otherpurposes.(10) Within 180 days after receiving funds from the MIDC under subsection (7), anindigent criminal defense system shall comply with the terms of the grant in bringingits system into compliance with the minimum standards established by the MIDC foreffective assistance of counsel.(11) If an indigent criminal defense system is awarded no funds for implementation ofits plan under this act, the MIDC shall nevertheless issue to the system a zero gtarfireflecting that it will receive no grant funds.(12) The MIDC may apply for and obtain grants from any source to carry out thepurposes of this act. All funds received by MIDC, from any source, are state fundsand shall be appropriated as provided by law.Sec. 15. (l) If a dispute arises between the MIDC and an indigent criminal defensesystem conceming the requirements of this act, including a dispute conceming theapproval of an indigent criminal defense system's plan, cost analysis, or compliancewith section 13 or 17, the parties shall attempt to resolve the dispute by mediation.The state court administrator, as authorized by the supreme court, shall appoint amediator agreed to by the parties within 30 calendar days of the mailing date of theofficial notification of the third disapproval by the MIDC under section l3(4) tomediate the dispute and shall facilitate the mediation process. The MIDC shallimmediately send the state court administrative office a copy of the official notice ofthat third disapproval. If the parties do not agree on the selection ofthe mediator, thestate court administrator, as authorized by the supreme court, shall appoint a mediatorof his or her choosing. Mediation shall commence within 30 calendar days after themediator is appointed and terminate within 60 calendar days of its commencement.Mediation costs associated with mediation of the dispute shall be paid equally by theparties.(2) If the parties do not come to a resolution of the dispute during mediation undersubsection (1), all of the following apply:(a) The mediator may submit his or her recommendation of how the dispute should beresolved to the MIDC within 30 calendar days of the conclusion of mediation for theMIDC's consideration.(b) The MIDC shall consider the recommendation of the mediator, if any, and shallapprove a final plan or the cost analysis, or both, in the manner the uloc considersappropriate within 30 calendar days, and the indigent criminal defense system shallimplement the plan as approved by the MIDC.(c) The indigent criminal defense system that is aggrieved by the final plan, costanalysis, or both, may bring an action seeking equiiable relief as descrited insubsection (3).

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(3) The MIDC, or an indigent criminal defense system may bring an action seekingequitable relief in the circuit court only as follows:(a) Within 60 days after the MIDC's issuance of an approved plan and cost analysisunder subsection (2Xb).(b) Within 60 days after the system receives grant fi.rnds under section 13(7), if theplan, cost analysis, or both, required a grant award for implementation of the plan.(c) Within 30 days of the MIDC's determination that the indigent criminal defensesystem has breached its duty to comply with an approved plan.(d) The action shall be brought in the judicial circuit where the indigent criminaldefense service is located. The state court administrator, as authorized by the supremecourt, shall assign an active or retired judge from ajudicial circuit other than thejudicial circuit where the action was filed to hear the case. Costs associated with theassignment ofthejudge shall be paid equally by the parties.(e) The action shall not challenge the validity, legalify, or appropriateness of theminimum standards approved by the supreme court.(4) If the dispute involves the indigent criminal defense system's plan, cost analysis,or both, the court may approve, reject, or modifu the submitted plan, cost analysis, orthe terms of a grant awarded under section 13(7) other than the amount of the grant,determine whether section l3 has been complied with, and issue any orders necessaryto obtain compliance with this act. However, the system shall not be required toexpend more than its local share in complying with this act.(5) Ifa party refuses or fails to comply with a previous order of the court, the courtmay enforce the previous order through the court's enforcement remedies, including,but not limited to, its contempt powers, and may order that the state undertake theprovision of indigent criminal defense services in lieu of the indigent criminal defensesystem.(6) If the court determines that an indigent criminal defense system has breached itsduty under section 17(l), the court may order the MIDC to provide indigent criminaldefense on behalf of that system.(7) If the court orders the MIDC to provide indigent criminal defense services onbehalfofan indigent criminal defense system, the court shall order the system to paythe following amount of the state's costs that the MIDC determines are necessary inorder to bring the indigent criminal defense system into compliance with theminimum standards established by the MIDC:(a) In the first year, l0% ofthe state's costs.(b) In the second year, 20%o ofthe state,s costs.(c) In the third year, 30% ofthe state's costs.(d) In the fourth year, 40Yo ofthe state,s costs.(e) In the fifth year, and any subsequent year, not more than the dollar amount thatwas calculated under subdivision (d).(8) An indigent criminal defense system may resume providing indigent criminaldefense services at any time as provided under section 13. when a slstem resumes

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providing indigent criminal defense services, it is no longer required to pay anassessment under subsection (7) but shall be required to pay no less than its share.Sec. 17. (1) Except as provided in subsection (2), every local unit of govemment andevery trial court that is part of an indigent criminal defense system shall comply withan approved plan under this act.(2) A system's duty of compliance with the terms of the plan as prescribed undersubsection (1) is contingent upon receipt ofa grant in the amount contained in theplan and cost analysis approved by the MIDC.(3) The MIDC may proceed under section 15 if an indigent criminal defense systembreaches its duty of compliance under subsection (l).Sec. 19. The MIDC shall publish and make available to the public on a website itsannual report, its budget, and a listing of all expenditures. Publication and availabilityofthe listing of expenditures shall be on a quarterly basis, except for the annual reportand salary information, which may be published and made available on an annualbasis. As used in this section, "expenditures" means all payments or disbursements ofMIDC funds, received from any source, made by the MIDC.Sec. 21. Both of the following apply to the MIDC:(a) The freedom of information act, 1976PA442, MCL 15.231 to 15.246, except asprovided in section 7(10).(b) The open meetings act, 1976PA267,MCL 15.261 to 15.275.Sec. 23. (l) Nothing in this act shall be construed to ovemrle, expand, or extend,either directly or by analogy, any decisions reached by the United States supremecourt or the supreme court of this state regarding the effective assistance ofcounsel.(2) Nothing in this act shall be construed to override section 29 or 30 ofarticle IX ofthe state constitution of 1963.(3) Except as otherwise provided in this act, the failure of an indigent criminal defensesystem to comply with statutory duties imposed under this act does not create a causeof action against the govemment or a system.(4) Statutory duties imposed that create a higher standard than that imposed by theUnited States constitution or the state constitution of 1963 do not create a cause ofaction against a local unit of govemment, an indigent criminal defense system, or thisstate.(5) Violations of MIDC rules that do not constitute ineffective assistance of counselunder the United States constitution or the state constitution of 1963 do not constitutegrounds for a conviction to be reversed or a judgment to be modified for ineffectiveassistance of counsel.This act is ordered to take immediate effect.

Clerk of the House of RepresentativesSecretary ofthe Senate

ApprovedGovernor

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