Recorder's Court Bar Ass'n v. Wayne Circuit Court

• Decision Date: 03 August 1993
• Docket Number: Docket No. 86099,No. 1,1
• Citation: Recorder's Court Bar Ass'n v. Wayne Circuit Court, 503 N.W.2d 885, 443 Mich. 110 (Mich. 1993)
• Parties: , 62 USLW 2151 In the Matter of the RECORDER'S COURT BAR ASSOCIATION, The Criminal Defense Attorneys of Michigan, The Michigan Trial Lawyers Association, Women Lawyers Association of Michigan, and The Suburban Bar Association, Petitioners, v. WAYNE CIRCUIT COURT and Recorder's Court, Respondents, and Wayne County, Intervening Respondent. Calendar
• Court: Michigan Supreme Court

Page 885

503 N.W.2d 885

443 Mich. 110, 62 USLW 2151

In the Matter of the RECORDER'S COURT BAR ASSOCIATION, TheCriminal DefenseAttorneys of Michigan, The Michigan Trial Lawyers Association, Women Lawyers Association of Michigan and The Suburban Bar Association, Petitioners, v.WAYNE CIRCUIT COURT and Recorder's Court, Respondents and Wayne County, Intervening Respondent.

Docket No. 86099.

Calendar No. 1.

Supreme Court of Michigan.

Argued Nov. 9, 1992.

Decided Aug. 3, 1993.

[443 Mich. 111] Frank D. Eaman, Bellanca, Beattie and DeLisle, P.C., Detroit, for petitioners.

Joseph F. Chiesa, Detroit, for respondent Chief Judge.

Dykema Gossett by Kathleen McCree Lewis, Cheryl A. Fletcher, Detroit, for intervening respondent Wayne County.

Sidney Kraizman, Frederick M. Finn, Detroit, for amicus curiae, Detroit Bar Assoc.

OPINION

MICHAEL F. CAVANAGH, Chief Justice.

We are asked in this case to determine whether the assigned counsel compensation system currently utilized in the Wayne Circuit Court¹ and the Detroit Recorder's Court provides counsel assigned to represent indigent defendants"reasonable compensation" within the meaning of M.C.L. § 775.16;M.S.A. § 28.1253.We hold that it does not.Because we decide this issue in favor of the petitioners, we need not reach the remaining issues raised in this complaint for superintending control.²

I

In June 1988, Chief Judges Dalton A. Roberson of the Detroit Recorder's Court and Richard C. Kaufman of the Third Circuit Court promulgated the fee schedule currently in dispute.Unlike previous fee schedules which compensated counsel on the basis of representational "events" performed by assigned counsel, the new fee schedule operates to pay a "fixed-fee" for the entire representation through sentencing, regardless of events, on the basis of the maximum penalty imposable for the crime charged.This fee schedule became effective July 1, 1988, and remains in effect as of the date of this opinion.The petitioners filed a complaint for superintending control in this Court on May 5, 1989, challenging the reasonableness and constitutionality of the fixed-fee schedule.Specifically, the petitioners asked this Court to invalidate the fixed-fee schedule and to order the Third Circuit Court and the Detroit Recorder's Court to adopt and implement an "event-based" fee schedule developed in 1981 by a committee headed by Recorder's Court Judge Clarice Jobes³ adjusted for inflation.

Unable to resolve this case without the aid of a factual record, we appointed the Honorable Tyrone Gillespie as special master and directed him to conduct an evidentiary hearing and to propose findings of fact to this Court on the following topics:

"(1) the various rates of reimbursement for appointed counsel in Michigan; (2) the amount of overhead and expenses typically incurred by attorneys who accept appointments to represent indigent criminal defendants; (3) the amount of income which may typically be generated by acceptance of appointments; (4) the amount of attorney and staff time spent to generate amounts of income from appointments; (5) instances of pressures to under-represent indigent defendants; and (6) any other topics which any party or the special master thinks will help this Court resolve the issues presented in this case."

Thirty-two witnesses testified during twelve full days of hearings that began January 16, 1990, and ended February 16, 1990.Judge Gillespie issued proposed findings of fact in a 226-page report on April 3, 1991.In his report, Judge Gillespie noted that the assigned counsel compensation systems utilized in this state vary to some degree from circuit to circuit.The Third Circuit Court and Detroit Recorder's Court were, however, the only courts to use a fixed-fee schedule that pays a flat fee to assigned counsel on the basis of the potential maximum sentence that a defendant may face, if convicted.

Judge Gillespie also noted a wide variation in the profitability of accepting indigent defense cases under the fixed-fee system.He cites two primary reasons for this variation: (1) the disparity in attorney overhead ⁴ and expenses, ⁵ and (2) case complexity.Of the two, Judge Gillespie found that perhaps the most determinative factor in the realization of income under the fixed-fee system is the complexity of the assigned case.In this regard, Judge Gillespie observed an "inverse relationship" between effort expended and fees paid under the fixed-fee system.Although noting that the system had the meritorious effect of speeding up the docket, ⁶ Judge Gillespie found that the system tends to encourage assigned counsel to persuade their clients to plead guilty, stating:

"The incentive, if a lawyer is not paid to spend more time with and for the client, is to put in as little time as possible for the pay allowed.Under the current system, a lawyer can earn $100 an hour for a guilty plea, whereas if he or she goes to trial the earnings may be $15 an hour or less.Essential motions are neglected.

"In short, the system of reimbursement of assigned counsel as it now exists creates a conflict between the attorney's need to be paid fully for his services and obtaining the full panoply of rights for the client.Only the very conscientious will do the latter against his or her own interests."⁷

Judge Gillespie ultimately concluded that any benefits derived from the system did not outweigh the negative aspects of paying assigned counsel in such a manner.Accordingly, Judge Gillespie recommended that this Court find the fixed-fee method of compensating assigned counsel based on the seriousness of the crime to be unreasonable, unjust, and a disincentive to due process.⁸

Having considered the record developed at the special hearing, along with the briefs and oral arguments of the parties, we now hold that the fixed-fee system currently utilized in the Third Circuit Court and the Detroit Recorder's Court systematically fails to provide "reasonable compensation" within the meaning of M.C.L. § 775.16;M.S.A. § 28.1253.We decline, however, the invitation to direct the implementation of any specific system or method of compensating assigned counsel, electing instead to leave that determination to the sound discretion of the chief judges of the respective courts.

II

From 1967 to 1988, the Third Circuit Court and the Detroit Recorder's Court utilized an "event-based" fee system to compensate counsel assigned to represent indigent criminal defendants.Under this system, assigned counsel was compensated on the basis of the type and number of representational tasks performed in providing ordinary legal services to indigent criminal defendants.⁹

In an effort to reduce jail overcrowding, a "jail oversight committee," comprised of various county officials, was formed to examine the Wayne County criminal justice system and to make recommendations, concerning how to reduce demand for jail beds.The committee found a direct correlation between jail bed demand and the length of the criminal docket.Given the volume of criminal cases in Wayne County, the committee concluded that a substantial savings in jail bed demand could be recognized by reducing the time between a defendant's arrest and the ultimate disposition of the case.Believing that a large percentage of cases were being pleaded "unnecessarily" late in the criminal judicial process, often on the day of trial, and concerned that the event-based system provided an incentive for assigned counsel to prolong final disposition of cases to earn an enhanced fee, the chief judges sought to develop a fee system that would operate to provide a disincentive to "unnecessarily" delay guilty pleas.

George Gish, Court Administrator and Clerk of the Detroit Recorder's Court, was assigned the task of devising a compensation system that would eliminate "unnecessary delay" and promote docket efficiency without reducing the overall level of compensation paid to assigned counsel.A statistical analysis revealed a direct correlation between the fees paid under the event-based fee system and the maximum sentence imposable for a particular crime under our recommended sentencing guidelines.In other words, the number of "events" performed in representing indigent defendants was found to be directly related to the maximum sentence that a defendant faced.Given this information, Mr. Gish grouped all assigned cases for the previous two years by potential maximum sentence and averaged the fees paid in each group of cases.The fixed-fee schedule therefore represents an average of actual fees paid under the event-based system, broken down by the maximum sentence imposable for any given crime.The fixed rates are:

Offense Category                          Fixed Fee
                 24 month maximum                            $  475
                36 month maximum                                500
                48 month maximum                                525
                60 month maximum                                550
                84 month maximum                                575
                120 month maximum                               600
                168 month maximum                               625
                180 month maximum                               650
                240 month maximum                               675
                Life                                            750
                Second-degree Murder                          1,000
                First-degree Murder                           1,400
                ----------
                

Because the scheduled fees represent an average of the actual fees paid over a two-year period under the event-based fee system, compensation for individual representational tasks such as jail visits, motions, and trial per diem are incorporated into the fixed fees.¹⁰Assigned counsel is entitled to the full fee, regardless whether the case is dismissed at the preliminary examination, ¹¹the defendant pleads guilty at the arraignment on the information, or the case is ultimately disposed of after a three-day jury trial.¹²

The fixed-fee system was designed to...