Duncan v. State, Docket No. 278652.

CourtCourt of Appeal of Michigan (US)
Citation774 N.W.2d 89,284 Mich. App. 246
Docket NumberDocket No. 278858.,Docket No. 278652.,Docket No. 278860.
PartiesDUNCAN v. STATE of Michigan.
Decision Date11 June 2009
774 N.W.2d 89
284 Mich. App. 246
STATE of Michigan.
Docket No. 278652.
Docket No. 278858.
Docket No. 278860.
Court of Appeals of Michigan.
Submitted December 9, 2008, at Detroit.
Decided June 11, 2009, at 9:00 a.m.

[774 N.W.2d 97]

American Civil Liberties Union Fund of Michigan (by Michael J. Steinberg, Mount Clemens, Kary L. Moss, and Mark P. Fancher), Detroit and by Mark Granzotto, P.C. (by Mark R. Granzotto, Royal Oak), Frank D. Eaman PLLC (by Frank D. Eaman), Harper Woods, and Cravath, Swaine & Moore LLP (by Julie A. North and Elizabeth Kennedy), and American Civil Liberties Union Foundation (by Robin Dahlberg and Emily Chiang), for the plaintiffs.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Denise C. Barton, Margaret A. Nelson, Ann M. Sherman, and Jason R. Evans, Assistant Attorneys General, for the defendants.

Before: MURPHY, P.J., and SAWYER and WHITBECK, JJ.


At its core, this case involves a claim that the named plaintiffs, along with members of the certified class, i.e., present and future indigent defendants subject to felony prosecutions in the trial courts of Berrien, Genesee, and Muskegon counties, have been, are being, and will be denied their state and federal constitutional rights to counsel and the effective assistance of counsel, Const. 1963, art. 1, § 20, and U.S. Const., Am. VI, directly as a result of the court-appointed, indigent defense systems currently being employed by those counties. According to plaintiffs, even though the counties and the circuit court chief judges have been statutorily delegated the duties associated with providing representation for indigent criminal defendants, the state of Michigan and the Governor, defendants in this suit, ultimately remain legally responsible for securing and protecting the constitutional rights at issue. And plaintiffs assert that the constitutionally deficient county systems were born out of and created by defendants inadequate funding and lack of fiscal and administrative oversight. They further allege that the systemic constitutional deficiencies in regard to indigent representation continue to infect the judicial process and are directly attributable to defendants constitutional failures, which can and must be redressed by court action.

In Docket No. 278652, defendants appeal as of right the trial courts order denying under MCR 2.116(C)(7) their motion for summary disposition based on governmental immunity. In Docket No. 278858, defendants appeal by leave granted the trial courts order denying their motion for summary disposition on numerous theories, including various justiciability doctrines. Finally, in Docket No. 278860, defendants appeal by leave granted the trial courts order granting class certification. The appeals were consolidated.

We affirm, holding that defendants are not shielded by governmental immunity, that defendants are proper parties, that

774 N.W.2d 98

the trial court, not the Court of Claims, has jurisdiction, and that the trial court has jurisdiction and authority to order declaratory relief, prohibitory injunctive relief, and some level of mandatory injunctive relief, the full extent of which we need not presently define. We further hold that, on the basis of the pleadings and at this juncture in the lawsuit, plaintiffs have sufficiently alleged facts that, if true, establish standing, establish that the case is ripe for adjudication, and state claims upon which declaratory and injunctive relief can be awarded. Finally, we hold that the trial court properly granted the motion for class certification.

We preface our opinion by observing that the role of the judiciary in our tripartite system of government entails, in part, interpreting constitutional language, applying constitutional requirements to the given facts in a case, safeguarding constitutional rights, and halting unconstitutional conduct. For state and federal constitutional provisions to have any meaning, we may and must engage in this role even where litigation encompasses conduct by the executive and legislative branches. We cannot accept the proposition that the constitutional rights of our citizens, even those accused of crimes and too poor to afford counsel, are not deserving and worthy of any protection by the judiciary in a situation where the executive and legislative branches fail to comply with constitutional mandates and abdicate their constitutional responsibilities, either intentionally or neglectfully. If not the by courts, then by whom? We are not ruling that a constitutional failure has in fact occurred here, but it has been alleged and needs to be judicially addressed. This, however, does not mean that we may set public policy, make political judgments, or demand that more efficient or desirable means be utilized by the political branches in carrying out their constitutional obligations. But if a chosen path taken by the executive and legislative branches in an effort to satisfy their constitutional obligations allegedly fails to meet minimum constitutional requirements, the judiciary must examine the allegations and adjudicate the dispute. The judiciary by so intervening is not acting with a lack of judicial modesty or in violation of the separation of powers; it is acting in accordance with its constitutional obligations, duties, and oaths of office. See Boumediene v. Bush, 553 U.S. ___, ___, 128 S.Ct. 2229, 2259, 171 L.Ed.2d 41, 77 (2008); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-180, 2 L.Ed. 60 (1803). Failing to do so results in the political branches' effectively deciding "what the law is," Boumediene and Marbury, supra, impinging on the judiciary's role in violation of the separation of powers. Judicial modesty does not equate to ignoring constitutional obligations. Constitutional compliance is our only concern; matters regarding the method and the manner by which the executive and legislative branches effectuate constitutional demands are not our concern, nor can they be, as long as the branches abide by the state and federal constitutions. In that same vein, and with respect to the particular issues raised in this action, concerns about costs and fiscal impact, concerns regarding which governmental entity or entities should bear the costs, and concerns about which governmental body or bodies should operate an indigent defense system cannot be allowed to prevail over constitutional compliance, despite any visceral reaction to the contrary. We take no position on the validity of plaintiffs' allegations and claims, nor are the underlying motivations of any party relevant. We simply and merely hold that plaintiffs have alleged facts sufficient to survive a motion for summary disposition.

774 N.W.2d 99


In a highly detailed complaint, plaintiffs allege that the indigent defense systems now in place in Berrien, Genesee, and Muskegon counties are underfunded, poorly administered, and do not ensure that the participating defense attorneys have the necessary tools, time, and qualifications to adequately represent indigent defendants and to put the cases presented by prosecutors to the crucible of meaningful adversarial testing. Plaintiffs assert that the county systems are wholly lacking with respect to the following: client eligibility standards; attorney hiring, training, and retention programs; written performance and workload standards; the monitoring and supervision of appointed counsel; conflict of interest guidelines; and independence from the judiciary and prosecutorial offices. Plaintiffs claim harm in the form of improperly denied representation, wrongful convictions, unnecessary or prolonged pretrial detentions, factually unwarranted guilty pleas, lengthy pretrial delays, and the introduction of inadmissible evidence that could have been excluded had pretrial motions been filed. Plaintiffs claim further harm in the form of representation by counsel who have conflicts of interest, sentences that are harsher than warranted or legally unsound, and hearing and trial failures due to unprepared counsel and the lack of inquiry, investigation, investigatory tools, and access to expert witnesses. The complaint provides numerous examples in support of these contentions.

The complaint proceeds to provide specific instances of alleged deficient and inadequate performances by various court-appointed attorneys with respect to the eight named indigent plaintiffs. As an overview, these alleged instances include: counsel speaking with plaintiffs, for the first time, in holding cells for mere minutes before scheduled preliminary examinations while in full hearing range of other inmates; counsel advising plaintiffs to waive preliminary examinations without meaningful discussions of case-relevant matters; counsel failing to provide plaintiffs with police reports; and counsel generally neglecting throughout the entire course of criminal proceedings to discuss with plaintiffs the accuracy and nature of the charges, the circumstances of the purported crimes, and any potential defenses. Further alleged instances include: counsel entering into plea negotiations without client input or approval; counsel perfunctorily advising plaintiffs to plead guilty as charged absent meaningful investigation and inquiry; counsel improperly urging plaintiffs to admit facts when pleas were taken; and counsel neither preparing for hearings and trials nor engaging in any communications with plaintiffs concerning trials. The complaint alleges that other indigent defendants being prosecuted or who will be prosecuted in the future face the same prospects of receiving inadequate and ineffective assistance of counsel as that received by the named plaintiffs.

With respect to all the named plaintiffs, as well as all those persons fitting within the class, the complaint alleges that the inadequacies and ineffectiveness of counsel in handling indigent cases ultimately result from failures...

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