4.4Right to Appointed Counsel Under the Michigan Indigent Defense Commission Act

The Michigan Indigent Defense Commission Act (MIDCA), MCL 780.981 et seq., creating the Michigan Indigent Defense Commission (MIDC) within the Department of Licensing and Regulatory Affairs (LARA),¹ establishes a system for the appointment of defense counsel for indigent defendants.² 

Under the MIDCA, the MIDC is required to “develop[] 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^[3] in this state consistent with the safeguards of the United States constitution, the state constitution of 1963, and [the MIDCA].” MCL 780.989(1)(a). Although the MIDC is within the executive branch (and not the judicial branch), the MIDCA does not violate Const 1963, art 3 § 2, Const 1963 art 6 § 4, or Const 1963 art 6 § 5 because “any sharing or overlapping of functions required by the [MIDCA] is sufficiently specific and limited that it does not encroach on the constitutional authority of the judiciary.” Oakland Co v State of Michigan, 325 Mich App 247, 262 (2018). The MIDCA “does not directly regulate trial courts or attorneys.” Id. Instead, it “regulates ‘indigent criminal defense system[s],’ statutorily defined as funding units, rather than trial courts themselves.” Id. at 262-263. In addition, it “repeatedly recognizes the Michigan Supreme Court’s constitutional authority to regulate practice and procedure and to exercise general superintending control of Michigan courts.” Id. at 263. Further, “the [MIDCA] contains no provision authorizing the MIDC to force the judiciary to comply with the minimum standards, nor does the [MIDCA] purport to control what happens in court.” Id. at 264. Accordingly, the MIDCA is not facially unconstitutional. Id. at 265.

Similarly, a challenge to the MIDC’s minimum standard requirements⁴ that they “violate the separation of powers doctrine and are otherwise not authorized by law . . . lack[ed] merit.” Oakland Co, 325 Mich App at 265-266. Also, rules and procedures established by the MIDC do not violate the Administrative Procedures Act⁵ because they “are merely explanatory and do not contain compulsory provisions.” Id. at 272.

“Approval of a minimum standard proposed by the MIDC is considered a final department action subject to judicial review under [Const 1963, art VI, § 28] to determine whether the approved minimum standard is authorized by law. MCL 780.985(5). “Jurisdiction and venue for judicial review are vested in the court of claims.” Id. “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 [LARA’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.” Id.

“No later than 180 days after a standard is approved by [LARA], each indigent criminal defense system shall submit a plan to the MIDC for the provision of indigent criminal defense services in a manner as determined by the MIDC and shall submit an annual plan for the following state fiscal year on or before October 1 of each year.” MCL 780.993(3). The plan “must include a cost analysis for meeting [the] minimum standards.” Id. The MIDC must approve or disapprove all or any portion of a system’s plan and/or cost analysis within 90 days. MCL 780.993(4).⁶ 

Within 180 days⁷ after receiving grant funding from the MIDC,⁸ “an indigent criminal defense system shall comply with the terms of the grant in bringing its system into compliance with the minimum standards established by the MIDC for effective assistance of counsel.” MCL 780.993(11); see also MCL 780.997.

The standards, rules, and procedures established by the MIDC must address the MIDCA requirements discussed in the following subsections.

A.Advice of the Right to Counsel

The trial court must “assure that each criminal defendant is advised of his or her right to counsel.” MCL 780.991(1)(c). See also MCR 6.005(A), which provides:

“At the arraignment on the warrant or complaint, the court must advise the defendant

(1) of entitlement to a lawyer’s assistance at all court proceedings, and

(2) that the defendant is entitled to a lawyer at public expense if the defendant wants one and is financially unable to retain one.”

“Court rules providing for advising a defendant concerning his right to counsel at subsequent court proceedings . . . do not conflict with the language of [MIDC] Standard 4 providing for representation at the arraignment.” Oakland Co v State of Michigan, 325 Mich App 247, 270-271 (2018) (additionally holding that although the US Constitution does not require the appointment of counsel at arraignment, appointment at this juncture is not constitutionally prohibited, and through the MIDCA, the Michigan Legislature has enacted a protection greater than that secured by the United States Constitution).

B.Screening for Eligibility for Appointed Counsel

“All adults,^[9] except those appearing with retained counsel or those who have made an informed waiver of counsel, must be screened for eligibility under [the MIDCA], and counsel must be assigned as soon as an indigent adult is determined to be eligible for indigent criminal defense services.” MCL 780.991(1)(c). See also MIDC Standard 4.

1.Preliminary Inquiry

“A preliminary inquiry regarding, and the determination of, the indigency of any defendant, including a determination whether a defendant is partially indigent, for purposes of [the MIDCA] must be made as determined by the indigent criminal defense system not later than at the defendant’s first appearance in court.¹⁰ The determination may be reviewed by the indigent criminal defense system at any other stage of the proceedings.” MCL 780.991(3)(a). See also MIDC Standard 4 (“The indigency determination shall be made and counsel appointed to provide assistance to the defendant as soon as the defendant’s liberty is subject to restriction by a magistrate or judge.”).

See also MCR 6.005(A), requiring the court, at arrai gnment, to “ask the defendant whether the defendant wants a lawyer and, if so, whether [he or she] is financially unable to retain one.” “Court rules providing for advising a defendant concerning his right to counsel at subsequent court proceedings and providing for the prompt appointment of a lawyer . . . do not conflict with the language of [MIDC] Standard 4 providing for representation at the arraignment.” Oakland Co v State of Michigan, 325 Mich App 247, 270-271 (2018) (additionally holding that although the US Constitution does not require the appointment of counsel at arraignment, appointment at this juncture is not constitutionally prohibited, and through the MIDCA, the Michigan Legislature has enacted a protection greater than that secured by the United States Constitution).

2.Relevant Factors in Determining Eligibility for Appointment of Counsel

“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.” MCL 780.991(3)(a). See also MIDC Standard 4; Standard for Determining Indigency and Contribution, Indigency Determination. A defendant may be either fully or partially indigent.¹¹ See MCL 780.991(3)(a); MCL 780.991(3)(d)-(e). See Section 4.4(B)(3) for more information on finding a defendant partially indigent.

Trial courts may play a role in determining whether a defendant is entitled to the appointment of counsel. Id.¹² Nothing in the MIDCA prevents a court from making a determination of indigency for any purpose consistent with Const 1963, art VI, § 4. MCL 780.991(3)(a). See also Standard for Determining Indigency and Contribution, Indigency Determination (a) (“[a] plan that leaves screening decisions to the court can be acceptable”).

“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.” MCL 780.991(3)(b). See also MCL 780.983(e). Substantial financial hardship is rebuttably presumed under certain circumstances. MCL 780.991(3)(b). See Section 4.4(B)(3); Standard for Determining Indigency and Contribution, Indigency Determination (b).

In determining eligibility for appointed counsel under the MIDCA, MCL 780.991(3)(a) sets out factors the court may consider, which “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

•the defendant’s level of education.¹³

See also Standard for Determining Indigency and Contribution, Indigency Determination; MCR 6.005(B), providing that a defendant’s “ability to post bond for pretrial release does not make the defendant ineligible for appointment of a lawyer.”

3.Determination of Partial Indigence¹⁴

“A determination that a defendant is partially indigent may only be made if the indigent criminal defense system determines that a defendant is not fully indigent.” MCL 780.991(3)(d). The more rigorous screening process set forth in MCL 780.991(3)(c) must be utilized if the indigent criminal defense system determines that a defendant may be partially indigent. MCL 780.991(3)(d). The screening process applies to defendants who do not fall below the presumptive thresholds described in MCL 780.991(3)(b).¹⁵ See also Standard for Determining Indigency and Contribution, Indigency Determination (b).

“If an indigent criminal defense system determines that a defendant is partially indigent, the indigent criminal defense system shall determine the amount of money the defendant must contribute to his or her defense. An indigent criminal defense system’s determination regarding the amount of money a partially indigent defendant must contribute to his or her defense is subject to judicial review.” MCL 780.991(3)(a). See Section 4.4(G) for more information on collecting contributions and reimbursements from individuals determined to be partially indigent.

4.Rebuttable Presumption of Substantial Financial Hardship

MCL 780.991(3)(b) provides that substantial financial hardship is rebuttably presumed if any of the following apply to 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

•earns an income less than 140% of the federal poverty guideline¹⁶

•is currently serving a sentence in a correctional institution

•is receiving residential treatment in a mental health or substance abuse facility.

“A defendant not falling below the presumptive thresholds described in [MCL 780.991(3)(b)] must 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.” MCL 780.991(3)(c).

See also Standard for Determining Indigency and Contribution, Indigency Determination (b).

5.Burden of Proof

“A defendant is responsible for applying for indigent defense counsel^[17] and for establishing his or her indigency and eligibility for appointed counsel under [the MIDCA]. 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 must be made under oath or an equivalent affirmation.” MCL 780.991(3)(g).

C.Appointment of Counsel

“[C]ounsel must be assigned as soon as an indigent adult is determined to be eligible for indigent criminal defense services.” MCL 780.991(1)(c). See also MCR 6.005(D) (requiring the court to “promptly refer the defendant to the local indigent criminal defense system’s appointing authority for appointment of a lawyer” following a determination of indigency).¹⁸

“The indigency determination shall be made and counsel appointed to provide assistance to the defendant as soon as the defendant’s liberty is subject to restriction by a magistrate or judge.” MIDC Standard 4.¹⁹ “Representation includes but is not limited to the arraignment on the complaint and warrant.” Id. “All persons determined to be eligible for indigent criminal defense services shall also have appointed counsel at pre-trial proceedings, during plea negotiations and at other critical stages, whether in court or out of court.” Id. However, the defendant is not prohibited “from making an informed waiver of counsel.” Id.

“The selection of lawyers and the payment for their services shall not be made by the judiciary or employees reporting to the judiciary. Similarly, the selection and approval of, and payment for, other expenses necessary for providing effective assistance of defense counsel shall not be made by the judiciary or employees reporting to the judiciary.” MIDC Standard 5(A).²⁰ “The court’s role shall be limited to: informing defendants of right to counsel; making a determination of indigency and entitlement to appointment; if deemed eligible for counsel, referring the defendant to the appropriate agency (absent a valid waiver). Judges are permitted and encouraged to contribute information and advice concerning the delivery of indigent criminal defense services, including their opinions regarding the competence and performance of attorneys providing such services.” MIDC Standard 5(B) “Only in rare cases may a judge encourage a specific attorney be assigned to represent a specific defendant because of unique skills and abilities that attorney possesses. In these cases, the judge’s input may be received and the system may take this input into account when making an appointment, however the system may not make the appointment solely because of a recommendation from the judge.” MIDC Standard 5, (staff comment).

In some actions, an appointing authority independent of the judiciary will appoint an attorney to represent a party for the entirety of the action, in which case the attorney must file an appearance with the court. MCR 2.117(B)(3). The appointing authority may appoint an attorney for a single hearing such as an arraignment, in which case the attorney does not need to file an appearance, but should orally inform the court of the limited appointment at the time of the hearing. Id.

The MIDC’s minimum standards, rules, and procedures must generally ensure that “[t]he same defense counsel continuously represents and personally appears at every court appearance throughout the pendency of the case.” MCL 780.991(2)(d).

D.Bond and Right to Counsel

“Where there are case-specific interim bonds set, counsel at arraignment shall be prepared to make a de novo argument regarding an appropriate bond regardless of and, indeed, in the face of, an interim bond set prior to arraignment which has no precedential effect on bond-setting at arraignment.” MIDC Standard 4.²¹

E.Review of Determination of Eligibility

The indigent criminal defense system’s preliminary determination of indigency, including partial indigency, “may be reviewed by the indigent criminal defense system at any other stage of the proceedings.” MCL 780.991(3)(a). See also Standard for Determining Indigency and Contribution, Judicial Review, for more information on a defendant’s right of review and related procedures.

F.Effective Assistance of Counsel

“The MIDC shall implement minimum standards, rules, and procedures to guarantee the right of indigent defendants to the [effective] assistance of counsel as provided under” the state and federal constitutions. MCL 780.991(2). In establishing these standards, rules, and procedures, the MIDC must 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 effective representation. Economic disincentives or incentives that impair defense counsel’s ability to provide effective representation must be avoided. The MIDC 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, indigent criminal defense systems may exempt ministerial, nonsubstantive tasks, and hearings from this prescription.

(e) indigent criminal defense systems employ only defense counsel who have attended continuing legal education relevant to counsels’ indigent defense clients.

(f) indigent criminal defense systems systematically review defense counsel at the local level for efficiency and for effective representation according to MIDC standards.” MCL 780.991(2).

1.No Expansion of Federal or State Constitutional Law

“Nothing in [the MIDCA] shall be construed to overrule, expand, or extend, either directly or by analogy, any decisions reached by the United States [S]upreme [C]ourt or the [Michigan Supreme Court] regarding the effective assistance of counsel.” MCL 780.1003(1).

2.Prohibition of Civil Remedy

“Except as otherwise provided in [the MIDCA], the failure of an indigent criminal defense system to comply with statutory duties imposed under [the MIDCA] does not create a cause of action against the government or a system.” MCL 780.1003(3).

“Statutory duties imposed that create a higher standard than that imposed by the United States constitution or the state constitution of 1963 do not create a cause of action against a local unit of government, an indigent criminal defense system, or this state.” MCL 780.1003(4).

3.Prohibition of Remedy in Criminal Cases

“Violations of MIDC rules that do not constitute ineffective assistance of counsel under the United States constitution or the state constitution of 1963 do not constitute grounds for a conviction to be reversed or a judgment to be modified for ineffective assistance of counsel.” MCL 780.1003(5).

G.Collection of Contribution or Reimbursement from Partially Indigent Individuals

“The court shall collect contribution or reimbursement from individuals determined to be partially indigent[.]” MCL 780.993(17). Reimbursement under MCL 780.993(17) is subject to MCL 775.22, which governs the allocation of funds received by an individual in a criminal case. MCL 780.993(17). One hundred percent of the funds collected by the court must be remitted to the indigent criminal defense system in which the court is sitting. Id. See also Standard for Determining Indigency and Contribution, Determination of Reimbursement.

H.Standard of Review

A trial court’s determination of a defendant’s indigence is reviewed for an abuse of discretion. People v Gillespie, 42 Mich App 679, 681-682 (1972).