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).
B.Screening for Eligibility for Appointed Counsel
MCL 780.991(1)(c) provides, in relevant part:
“All adults,[1] 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.” See also MIDC Standard 4; Standard for Determining Indigency and Contribution, Indigency Determination.2
MCL 780.991(3)(a) provides, in relevant part:
“A preliminary inquiry regarding, and the determination of, the indigency of any defendant, including a determination regarding whether a defendant is partially indigent, for purposes of [the MIDCA] must be made as determined by the indigent criminal defense system[3] not later than at the defendant’s first appearance in court.[4] The determination may be reviewed by the indigent criminal defense system at any other stage of the proceedings. . . . 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 [Michigan Supreme Court], consistent with [Const 1963, art 6, § 4].[5] Nothing in [the MIDCA] shall prevent a court from making a determination of indigency for any purpose consistent with [Const 1963, art 6].”
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.” Id. “Representation includes but is not limited to the arraignment on the complaint and warrant.”6 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.
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.7 See MCL 780.991(3)(a); MCL 780.991(3)(d)-(e). See Section 17.2(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.8 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.” See also MCL 780.983(e). Substantial financial hardship is rebuttably presumed under certain circumstances. MCL 780.991(3)(b). See Section 17.2(B)(3).
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”; and
•“[the defendant’s] level of education.” MCL 780.991(3)(a).
3.Determination of Partial Indigence9
“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).10
“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 also Standard for Determining Indigency and Contribution, Contribution. See Section 17.2(G) for more information on collecting contributions and reimbursements from individuals determined to be partially indigent.
4.Rebuttable Presumption of Substantial Financial Hardship
Substantial financial hardship is 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[;]”
•“earns an income less than 140% of the federal poverty guideline[;]”
•“is currently serving a sentence in a correctional institution[;]” or
•“is receiving residential treatment in a mental health or substance abuse facility.” MCL 780.991(3)(b). See also Standard for Determining Indigency and Contribution, Indigency Determination.
If the defendant does not “fall[] below [these] presumptive thresholds,” he or she “must be subjected to a more rigorous screening process to determine if his or her particular circumstances . . . would result in a substantial hardship if he or she were required to retain private counsel.” MCL 780.991(3)(c). Relevant “particular circumstances” include:
•“the seriousness of the charges being faced[;]
•[the defendant’s] monthly expenses[;] and
•local private counsel rates[.]” Id.
5.Burden of Proof
“A defendant is responsible for applying for indigent defense counsel[11] 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]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).
“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. “Representation includes but is not limited to the arraignment on the complaint and warrant.”12 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).13 “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).
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).
“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 4.14
E.Review of Determination of Eligibility
The 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
MCL 780.1003(3)-(4) provide:
“(3) 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.
(4) 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.”
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 under MCL 780.993(17) must be remitted to the indigent criminal defense system in which the court is sitting. Id. See also Standard for Determining Indigency and Contribution, Contribution; Standard for Determining Indigency and Contribution, Determination of Reimbursement.
For additional discussion of requirements under the MIDCA, see the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 1, Chapter 4.
1 As used in the MIDCA, “‘[a]dult’” includes “[a]n individual less than 18 years of age at the time of the commission of a felony” who is the subject of a traditional waiver, designated, or automatic waiver proceeding. MCL 780.983(a)(ii). Note that the MIDCA does not appear to apply to court-designated cases after designation. See MCL 780.983(a)(ii)(C). It is unclear whether this was intentional or an oversight.
2 Although the federal 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. Oakland Co v State of Michigan, 325 Mich App 247, 269 (2018).
3 An indigent criminal defense system is “[t]he local unit of government that funds a trial court.” MCL 780.983(h)(i). Alternatively, “[i]f a trial court is funded by more than 1 local unit of government,” an indigent criminal defense system is “those local units of government, collectively.” MCL 780.983(h)(ii).
4 The MIDC must “promulgate objective standards for indigent criminal defense systems to determine whether a defendant is indigent or partially indigent,” which must include “prompt judicial review, under the direction and review of the supreme court[.]” See MCL 780.991(3)(e); Standard for Determining Indigency and Contribution, Judicial Review. The MIDC has set out a minimum standard for determining indigency and contribution “for those local funding units that elect to assume the responsibility of making indigency determinations and for setting the amount that a local funding unit could require a partially indigent defendant to contribute to their defense”; however, “[a] plan that leaves screening decisions to the court can be acceptable.” Standard for Determining Indigency and Contribution, Indigency Determination (a).
5 This statute recognizes “the authority of the judicial branch with respect to indigency determinations,” and “it is sufficiently clear from MCL 780.991(3)(a) that the judiciary has not been deprived of its constitutional authority in this area.” Oakland Co, 325 Mich App at 265. See Chapter 17 for more information on the constitutionality of the MIDCA.
6 The requirement that counsel be appointed at arraignment under MIDC Standard 4 does not conflict with the United States Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co, 325 Mich App at 269 (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). “Absent a state constitutional prohibition, states are free to enact legislative ‘protections greater than those secured under the United States Constitution[.]’” Id., quoting People v Harris, 499 Mich 332, 338 (2016).
7 The MIDC must “promulgate objective standards for indigent criminal defense systems to determine whether a defendant is indigent or partially indigent,” which must include “prompt judicial review, under the direction and review of the supreme court[.]” See MCL 780.991(3)(e); Standard for Determining Indigency and Contribution, Judicial Review. The MIDC has set out a minimum standard for determining indigency and contribution “for those local funding units that elect to assume the responsibility of making indigency determinations and for setting the amount that a local funding unit could require a partially indigent defendant to contribute to their defense”; however, “[a] plan that leaves screening decisions to the court can be acceptable.” Standard for Determining Indigency and Contribution, Indigency Determination (a).
8 This statute recognizes “the authority of the judicial branch with respect to indigency determinations,” and “it is sufficiently clear from MCL 780.991(3)(a) that the judiciary has not been deprived of its constitutional authority in this area.” Oakland Co v State of Michigan, 325 Mich App 247, 265 (2018). See Chapter 17 for more information on the constitutionality of the MIDCA.
9 The MIDC must “promulgate objective standards for indigent criminal defense systems to determine the amount a partially indigent defendant must contribute to his or her defense. The standards must include availability of prompt judicial review, under the direction and supervision of the Supreme Court[.]” MCL 780.991(f). See also Standard for Determining Indigency and Contribution, Judicial Review.
10 See Section 17.2(B)(3) for more information regarding rebuttable presumption of substantial financial hardship and the screening process required in certain circumstances.
11 Note, however, that MCL 780.991(1)(c) requires the screening of “[a]ll adults, except those appearing with retained counsel or those who have made an informed waiver of counsel, . . . for eligibility under [the MIDCA]” (emphasis supplied).
12 The requirement that counsel be appointed at arraignment under MIDC Standard 4 does not conflict with the US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co, 325 Mich App at 269 (although the US Constitution does not require the appointment of counsel at arraignment, appointment at this juncture is not constitutionally prohibited). “Absent a state constitutional prohibition, states are free to enact legislative ‘protections greater than those secured under the United States Constitution[.]’” Id., quoting People v Harris, 499 Mich 332, 338 (2016).
13 See the MIDC’s Frequently Asked Questions About Standard 5 for more information. The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
14 The requirement that counsel be appointed for arraignment under MIDC Standard 4 does not conflict with the US Constitution, the Michigan Constitution, or the Michigan Court Rules. Oakland Co, 325 Mich App 247, 269 (2018) (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). “Absent a state constitutional prohibition, states are free to enact legislative ‘protections greater than those secured under the United States Constitution[.]’” Id., quoting People v Harris, 499 Mich 332, 338 (2016).