Bill Text: MI HB5842 | 2015-2016 | 98th Legislature | Enrolled

---

Bill Title: Courts; appointed counsel; Michigan indigent criminal defense commission; reestablish within the department of licensing and regulatory affairs. Amends secs. 3, 5 & 11 of 2013 PA 93 (MCL 780.983 et seq.).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2016-12-31 - Assigned Pa 439'16 With Immediate Effect [HB5842 Detail]

Download: Michigan-2015-HB5842-Enrolled.html

---

Introduced by Rep. Heise

STATE OF MICHIGAN 98TH LEGISLATURE

REGULAR SESSION OF 2016

ENROLLED HOUSE BILL No. 5842

AN ACT to amend 2013 PA 93, entitled “An act to create the Michigan indigent defense commission and to provide for its powers and duties; to provide indigent defendants in criminal cases with effective assistance of counsel; to provide standards for the appointment of legal counsel; to provide for and limit certain causes of action; and to provide for certain appropriations and grants,” by amending sections 3, 5, and 11 (MCL 780.983, 780.985, and 780.991).

The People of the State of Michigan enact:

Sec. 3. As used in this act:

1. “Adult” means either of the following:

   1. An individual 17 years of age or older.

   2. An individual less than 17 years of age at the time of the commission of a felony if any of the following conditions apply:

      1. During consideration of a petition filed under section 4 of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.4, to waive jurisdiction to try the individual as an adult and upon granting a waiver of jurisdiction.

      2. The prosecuting attorney designates the case under section 2d(1) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2d, as a case in which the juvenile is to be tried in the same manner as an adult.

      3. During consideration of a request by the prosecuting attorney under section 2d(2) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2d, that the court designate the case as a case in which the juvenile is to be tried in the same manner as an adult.

      4. The prosecuting attorney authorizes the filing of a complaint and warrant for a specified juvenile violation under section 1f of chapter IV of the code of criminal procedure, 1927 PA 175, MCL 764.1f.

2. “Department” means the department of licensing and regulatory affairs.

3. “Effective assistance of counsel” or “effective representation” means legal representation that is compliant with standards established by the appellate courts of this state and the United States supreme court.

4. “Indigent” means meeting 1 or more of the conditions described in section 11(3).

5. “Indigent criminal defense services” means local legal defense services provided to a defendant and to which both of the following conditions apply:

   1. The defendant is being prosecuted or sentenced for a crime for which an individual may be imprisoned upon conviction, beginning with the defendant’s initial appearance in court to answer to the criminal charge.

   2. The defendant is determined to be indigent under section 11(3).

6. Indigent criminal defense services do not include services authorized to be provided under the appellate defender act, 1978 PA 620, MCL 780.711 to 780.719.

7. “Indigent criminal defense system” or “system” means either of the following:

   1. The local unit of government that funds a trial court.

   2. If a trial court is funded by more than 1 local unit of government, those local units of government, collectively.

8. “Local share” or “share” means an indigent criminal defense system’s average annual expenditure for indigent criminal defense services in the 3 fiscal years immediately preceding the creation of the MIDC under this act, excluding money reimbursed to the system by individuals determined to be partially indigent.

9. “MIDC” or “commission” means the Michigan indigent defense commission created under section 5.

Sec. 5. (1) The Michigan indigent defense commission is established within the department.

1. 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. Any portion of funds appropriated to the MIDC that is not expended in a state fiscal year shall not lapse to the general fund but shall be carried forward in a work project account that is in compliance with section 451a of the management and budget act, 1984 PA 431, MCL 18.1451a, for use in the following state fiscal year.

2. The MIDC shall propose minimum standards for the local delivery of indigent criminal defense services providing effective assistance of counsel to adults throughout this state. These minimum standards shall be designed to ensure the provision of indigent criminal defense services that meet constitutional requirements for effective assistance of counsel. However, these minimum standards shall not infringe on the supreme court’s authority over practice and procedure in the courts of this state as set forth in section 5 of article VI of the state constitution of 1963.

3. The commission shall convene a public hearing before a proposed standard is recommended to the department. A minimum standard proposed under this subsection shall be submitted to the department for approval or rejection. Opposition to a proposed minimum standard may be submitted to the department in a manner prescribed by the department. An indigent criminal defense system that objects to a recommended minimum standard on the ground that the recommended minimum standard would exceed the MIDC’s statutory authority shall state specifically how the recommended minimum standard would exceed the MIDC’s statutory authority. A proposed minimum standard is final when it is approved by the department. A minimum standard that is approved by the department is not subject to challenge through the appellate procedures in section 15. An approved minimum standard for the local delivery of indigent criminal defense services within an indigent criminal defense system is not a rule as defined in section 7 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.207.

4. Approval of a minimum standard proposed by the MIDC is considered a final department action subject to judicial review under section 28 of article VI of the state constitution of 1963 to determine whether the approved minimum standard is authorized by law. Jurisdiction and venue for judicial review are vested in the court of claims. An indigent criminal defense system may file a petition for review in the court of claims within 60 days after the date of mailing notice of the department’s final decision on the recommended minimum standard. The filing of a petition for review does not stay enforcement of an approved minimum standard, but the department may grant, or the court of claims may order, a stay upon appropriate terms.

5. The MIDC shall identify and encourage best practices for delivering the effective assistance of counsel to indigent defendants charged with crimes.

   
   

   Sec. 11. (1) The MIDC shall establish minimum standards, rules, and procedures to effectuate the following:

   1. The delivery of indigent criminal defense services 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 defense services.

   2. If the caseload is sufficiently high, indigent criminal defense services may consist of both an indigent criminal defender office and the active participation of other members of the state bar.

   3. Trial courts shall assure that each criminal defendant is advised of his or her right to counsel. All adults, except those appearing with retained counsel or those who have made an informed waiver of counsel, shall be screened for eligibility under this act, and counsel shall be assigned as soon as an indigent adult is determined to be eligible for indigent criminal defense services.

1. The MIDC shall implement minimum standards, rules, and procedures to guarantee the right of indigent defendants to the assistance of counsel as provided under amendment VI of the Constitution of the United States and section 20 of article I of the state constitution of 1963. In establishing minimum standards, rules, and procedures, the MIDC shall adhere to the following principles:

   1. Defense counsel is provided sufficient time and a space where attorney-client confidentiality is safeguarded for meetings with defense counsel’s client.

   2. Defense counsel’s workload is controlled to permit effective representation. Economic disincentives or incentives that impair defense counsel’s ability to provide effective representation shall be avoided. The MIDC may develop workload controls to enhance defense counsel’s ability to provide effective representation.

   3. Defense counsel’s ability, training, and experience match the nature and complexity of the case to which he or she is appointed.

   4. The same defense counsel continuously represents and personally appears at every court appearance throughout the pendency of the case. However, indigent criminal defense systems may exempt ministerial, nonsubstantive tasks, and hearings from this prescription.

   5. Indigent criminal defense systems employ only defense counsel who have attended continuing legal education relevant to counsels’ indigent defense clients.

   6. Indigent criminal defense systems systematically review defense counsel at the local level for efficiency and for effective representation according to MIDC standards.

2. The following requirements apply to the application for, and appointment of, indigent criminal defense services under this act:

   1. A preliminary inquiry regarding, and the determination of, the indigency of any defendant for purposes of this act shall be made as determined by the indigent criminal defense system not later than at the defendant’s first appearance in court. The determination may be reviewed by the indigent criminal defense system at any other stage of the proceedings. In determining whether a defendant is entitled to the appointment of counsel, the indigent criminal defense system shall consider whether the defendant is indigent and the extent of his or her ability to pay. Factors to be considered include, but are not limited to, income or funds from employment or any other source, including personal public assistance, to which the defendant is entitled, property owned by the defendant or in which he or she has an economic interest, outstanding obligations, the number and ages of the defendant’s dependents, employment and job training history, and his or her level of education. A trial court may play a role in this determination as part of any indigent criminal defense system’s compliance plan under the direction and supervision of the supreme court, consistent with section 4 of article VI of the state constitution of 1963. Nothing in this act shall prevent a court from making a determination of indigency for any purpose consistent with article VI of the state constitution of 1963.

   2. A defendant is considered to be indigent if he or she is unable, without substantial financial hardship to himself or herself or to his or her dependents, to obtain competent, qualified legal representation on his or her own. Substantial financial hardship shall be rebuttably presumed if the defendant receives personal public assistance, including under the food assistance program, temporary assistance for needy families, medicaid, or disability insurance, resides in public housing, or earns an income less than 140% of the federal poverty guideline. A defendant is also rebuttably presumed to have a substantial financial hardship if he or she is currently serving a sentence in a correctional institution or is receiving residential treatment in a mental health or substance abuse facility.

   3. 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 her particular circumstances, including the seriousness of the charges being faced, his or her monthly expenses, and local private counsel rates would result in a substantial hardship if he or she were required to retain private counsel.

   4. A defendant shall be responsible for applying for indigent defense counsel and for establishing 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 criminal proceeding and material to the issue of his or her indigency shall be made under oath or an equivalent affirmation.

Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 98th Legislature are enacted into law:

1. House Bill No. 5843.

2. House Bill No. 5844.

3. House Bill No. 5845.

4. House Bill No. 5846.

This act is ordered to take immediate effect.

Clerk of the House of Representatives

Secretary of the Senate

Approved Governor