Duncan v. State, Docket Nos. 139345

• Decision Date: 30 November 2010
• Docket Number: 278858,139346,278860.,139347.,COA Nos. 278652,Docket Nos. 139345
• Citation: 488 Mich. 957,866 N.W.2d 407 (Mem)
• Parties: Christopher Lee DUNCAN, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs–Appellees, v. STATE of Michigan and Governor of Michigan, Defendants–Appellants. Christopher Lee Duncan, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs–Appellees, v. State of Michigan and Governor of Michigan, Defendants–Appellants. Christopher Lee Duncan, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs–Appellees, v. State of Michigan and Governor of Michigan, Defendants–Appellants.
• Court: Michigan Supreme Court

488 Mich. 957

866 N.W.2d 407 (Mem)

Christopher Lee DUNCAN, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs–Appellees

v.STATE of Michigan and Governor of Michigan, Defendants–Appellants.

Christopher Lee Duncan, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs–Appellees

v.State of Michigan and Governor of Michigan, Defendants–Appellants.

Christopher Lee Duncan, Billy Joe Burr, Jr., Steven Connor, Antonio Taylor, Jose Davila, Jennifer O'Sullivan, Christopher Manies, and Brian Secrest, Plaintiffs–Appellees

v.State of Michigan and Governor of Michigan, Defendants–Appellants.

Docket Nos. 139345

139346

139347.

COA Nos. 278652

278858

278860.

Supreme Court of Michigan.

Nov. 30, 2010.

Statements filed Dec. 22, 2010.

Order

On order of the Court, the motion for reconsideration of this Court's July 16, 2010 order is considered, and it is GRANTED. We VACATE our order dated July 16, 2010, and we REINSTATE our order in this case dated April 30, 2010, because reconsideration thereof was improperly granted.

We do not retain jurisdiction.

Dissenting statement of CORRIGAN, J., to follow.

DAVIS, J. (concurring).

I agree with Chief Justice Kelly's dissent from the July 16, 2010, order, stating that the prior motion for reconsideration should have been denied because it added nothing new. To the extent the unanimous April 30, 2010, order was reconsidered because of concerns that it could not be complied with, I have reviewed the record thoroughly and I do not agree with those concerns. Furthermore, if those concerns eventually prove warranted, the trial court should, and is in the best position to, make that evaluation. The trial court has not yet had the opportunity to do so. As the April 30, 2010, order stated, this case is at its earliest stages and a decision on its substantive merits is premature, but class certification should be reconsidered in light of Henry v. Dow Chemical Co., 484 Mich. 483, 772 N.W.2d 301 (2009). The original, unanimous order of this Court was correct, and no sufficient basis was presented for this Court to have reconsidered it.

HATHAWAY, J., joins the statement of DAVIS, J.

CORRIGAN, J., states as follows:

I object to the release of the Court's order without my dissenting statement and I reserve the right to file one as soon as I can. The majority has decided to grant the motion for reconsideration, and to reverse our previous order, without affording disagreeing Justices sufficient time to adequately respond to this decision. Instead, the majority has now decided to expedite the release of its order regardless of the fact that I have worked in a timely fashion to prepare a dissenting statement, but have not yet completed such a statement. This is contrary to our practice during the 11 years I have served on this Court. The Court's decision to suddenly expedite this case seems designed to prevent the new Court after January 1, 2011 from considering a motion for reconsideration.

MARKMAN, J. (dissenting).

I dissent from the order granting plaintiffs' motion for reconsideration, vacating this Court's July 16, 2010 order, and reinstating this Court's April 30, 2010 order. The July 16 order vacated the April 30 order and held that “[t]he defendants are entitled to summary disposition because, as the Court of Appeals dissenting opinion recognized, the plaintiffs' claims are not justiciable.” In a concurring statement, I explained that our April 30 order was erroneous for two reasons:

First, as defendants observe, this order vacated the Court of Appeals opinion without articulating any governing standards. Second, it is not premature to decide this case because the precise issue presented is whether plaintiffs have stated a claim on which relief can be granted, and this, as well as the threshold justiciability issues, can be determined on the face of the complaint. [Duncan v. State of Michigan, 486 Mich. 1071, 784 N.W.2d 51 (2010) (Markman, J., concurring).]

In addition, I concluded that defendants are entitled to summary disposition for the following reasons set forth in the Court of Appeals' dissent:

(1) The U.S. Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “was concerned with results, not process. It did not presume to tell the states how to assure that indigent criminal defendants receive effective assistance of counsel.” 284 Mich.App. 246, 357, 774 N.W.2d 89 (2009).

(2) Plaintiffs' claims would have “the judiciary override the Michigan system of local control and funding of legal services for indigent criminal defendants,” despite the absence here of any constitutional violation. Id. at 358, 774 N.W.2d 89.

(3) Plaintiffs' claims are not sufficient to create a presumption of either prejudice, or prejudice per se, that would warrant either declaratory or injunctive relief. Id. at 361, 774 N.W.2d 89.

(4) Plaintiffs lack standing, and, therefore, their claims are not justiciable. Id. at 371, 774 N.W.2d 89.

(5) Plaintiffs' claims are not ripe for adjudication, and, therefore, their claims are not justiciable. Id. at 371, 376, 774 N.W.2d 89.

(6) Plaintiffs' claims are not justiciable and, therefore, the relief they seek should not be granted. Id. at 385, 774 N.W.2d 89.

(7) In finding a justiciable controversy, the Court of Appeals erred in adopting a number of assumptions that are conjectural and hypothetical, including assumptions that plaintiffs and the class they purport to represent will be convicted of the crimes with which they are charged, that such convictions will result from prejudice stemming from ineffective assistance of counsel, that such ineffective assistance will be attributable to the inaction of defendants, and that trial and appellate judges will be unable or unwilling to afford relief for such violations of the Sixth Amendment. Id. at 368–370, 774 N.W.2d 89.

(8) There is no constitutional precedent that “guarantees an indigent defendant a particular attorney” or an “attorney of a particular level of skill” [as long as the attorney is not “so deficient as to cause prejudice”]; that requires a “predetermined amount of outside resources be available to an attorney”; or that requires that there be a “meaningful relationship with counsel.” Id. at 370[, 384, 774 N.W.2d 89].

(9) The Court of Appeals assertions that affording plaintiffs injunctive relief “could potentially entail a cessation of criminal prosecutions against indigent defendants,” id. at 273, 772 N.W.2d 301, and “that nothing in this opinion should be read as foreclosing entry of an order granting the type of relief so vigorously challenged by defendants,” id. at 281, 774 N.W.2d 89, accurately describe the potential consequences of its opinion, which consequences would constitute an altogether unwarranted, improper, and excessive response to plaintiffs' claims.Id. at 380–385, 774 N.W.2d 89.

(10) The Court of Appeals has “issued an open invitation to the trial court to assume ongoing operational control over the systems for providing defense counsel to indigent criminal defendants in Berrien, Genesee and Muskegon counties.” And with that invitation comes a “blank check” on the part of the judiciary to “force sufficient state level legislative appropriations and executive branch acquiescence” in assuming similar control over the systems in every county in this state, while “ifying the provisions” of the criminal defense act and “superseding the authority of the Supreme Court and the State Court Administrator.” Id. at 383–384, 774 N.W.2d 89. [Duncan, 486 Mich. at 1072, 784 N.W.2d 51 (Markman, J., concurring).]

Because plaintiffs have not presented anything in the present motion for reconsideration that causes me to believe that the above reasons do not continue to justify our decision to reverse the Court of Appeals, I would deny plaintiffs' motion for reconsideration.

CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.

Order

This Court's order of November 30, 2010, will be published with the following statements attached.

KELLY, C.J. (concurring).

I concur in the order granting plaintiffs' motion for reconsideration and reinstating our order of April 30, 2010. I write separately to avoid the confusion that I believe is likely given the history of this case and the statements of the dissenting justices.

The dissenters have yet to raise a single argument of which the Court was unaware when it originally decided this case eight months ago. Indeed, Justice Markman's dissenting statement consists almost entirely of a series of quotations from the Court of Appeals dissenting opinion. He also claims that it is not premature to make a final decision on this case because the issues involved are fully laid out on the face of the complaint. We rejected that precise argument in our April order.

Nor are Justices Corrigan, Young and Markman correct that our July 16, 2010 order granting reconsideration was warranted because our April order failed to articulate a governing standard for the trial court. Our April order affirmed only the result reached by the Court of Appeals. Such orders are hardly earth-shattering occurrences;¹ hence, all Justices were clearly aware at the time our April order entered that we were not articulating a governing standard for the trial court.² Yet no one on the Court stated a need for one. Nothing happened between April and July that gave rise to a need for the Court to articulate a governing standard.

Moreover, the thrust of the dissenters' position is that our failure to articulate a standard somehow makes summary disposition for defendants a more suitable outcome. In my view, such a conclusion is tantamount to throwing up one's hands in futility in the face of a thorny legal question. If the dissenters' concerns are genuine, why would not the proper remedy...