Tesmer v. Granholm
| Citation | 114 F.Supp.2d 603 |
| Decision Date | 31 March 2000 |
| Docket Number | No. 00-10082.,00-10082. |
| Parties | John Clifford TESMER, Charles Carter, and Alois Schnell, on behalf of themselves and all similarly situated individuals, and Arthur M. Fitzgerald and Michael D. Vogler, Plaintiffs, v. Jennifer GRANHOLM, Attorney General of the State of Michigan, in her official capacity; and Judge John F. Kowalski, Judge William A. Crane and Judge Lynda Heathscott, in their official capacity, individually and as representatives of a class of similarly situated circuit court judges, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Kary L. Moss, Mark Granzotto, Detroit, MI, Jeanice Dager-Margosian, Ann Arbor, MI, for Plaintiffs.
Thomas R. Wheeker, Michigan Department of Attorney General, Lansing, MI, for Defendants.
This 42 U.S.C. § 1983 matter is before the Court on Defendants' Motion to Dismiss and Plaintiffs' Motion for Preliminary Injunction. The Complaint, filed March 2, 2000, further requests that this Court issue an Order declaring that P.A.1999 No. 200, violates the Plaintiffs' rights to due process and equal protection as guaranteed by the United States Constitution, and further declaring that the judicial officer Defendants acted under color of law, in violation of § 1983, in denying indigents the appointment of counsel to prepare original appeals from their plea-based convictions.
For the reasons stated below, the Court grants in part and denies in part Defendants' Motion to Dismiss. Further, while the Court finds that the judicial officer Defendants acted under color of law in denying indigents' requests for the appointment of counsel, § 1983 does not permit injunctive relief against a judicial officer for action taken in that officer's judicial capacity, unless such officer has violated a declaratory decree or declaratory relief was unavailable. Hence, this Court denies Plaintiffs' Motion For Preliminary Injunction.
However, pursuant to the Plaintiffs' request for relief in their complaint, the Court finds this case to be an appropriate one for declaratory relief under Fed. R.Civ.P. 57 and 28 U.S.C. § 2201. Accordingly the Court declares the practices of the judicial officer Defendants and other similarly situated state circuit court judges, of denying indigents who have pleaded guilty or nolo contendere the right to appointed appellate counsel in preparing applications for leave to appeal, to be in violation of the indigents' equal protection and due process rights guaranteed under the United States Constitution.
Additionally, the Court declares that 1999 P.A. 200, scheduled to take effect on April 1, 2000, is unconstitutional in that it denies equal protection and due process to indigent individuals who have pleaded guilty or nolo contendere.
In November 1994, Michigan's constitution was amended to eliminate appeals of right for criminal defendants who pled guilty or nolo contendere. Specifically, MI. Const.1963, Art. 1, § 20 was amended to provide that criminal defendants may:
appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.
Plaintiffs allege that after the amendment to § 20, a number of Michigan circuit court judges began to routinely deny the requests of indigent Defendants for the appointment of appellate counsel to prepare applications for leave to appeal their plea-based convictions and sentences. This practice is especially prevalent in the 10th Circuit Court in Saginaw, according to Plaintiffs (Cmpt. at ¶ 18).
Three Plaintiffs allege that, consistent with this practice, the named judicial officer Defendants denied them appellate counsel. Plaintiff John Clifford Tesmer pled guilty to a charge of home invasion in 1999. After Defendant Judge John F. Kowalski of the 26th Circuit Court of Alcona sentenced Plaintiff, the judge denied Tesmer's request for appointed appellate counsel (Cmpt. at ¶¶ 19-22). After his 1999 guilty plea and sentencing for the charge of attempted murder, Plaintiff Charles Carter was denied appointed appellate counsel by Defendant Judge William A. Crane of the 10th Circuit Court (Cmpt. at ¶¶ 23-26). Likewise, Plaintiff Alois Schnell was denied appellate counsel by Defendant Judge Lynda L. Heathscot of the 10th Circuit after Schnell's pled guilty to operating a vehicle under the influence of liquor (Cmpt. at ¶¶ 27-30). (Hereinafter, Judges Kowalski, Crane and Heathscott will be referred to as "the Judges," and Mr. Tesmer, Mr. Carter and Mr. Schnell will collectively be referred to as "the Indigents.")
The practice of denying appellate counsel to indigent Defendants who plead guilty or nolo contendere has now been codified. P.A.1999, No. 200 provides:
Sec. 3a. (1) Except as provided in subsections (2) and (3), a defendant who pleads guilty, guilty but mentally ill, or nolo contendere shall not have appellate counsel appointed for review of the defendant's conviction or sentence.
(2) The trial court shall appoint appellate counsel for an indigent defendant who pleads guilty, guilty but mentally ill, or nolo contendere if any of the following apply:
(a) The prosecuting attorney seeks leave to appeal.
(b) The defendant's sentence exceeds the upper limit of the minimum sentence range of the applicable sentencing guidelines.
(c) The court of appeals or the supreme court grants the defendant's application for leave to appeal.
(d) The defendant seeks leave to appeal a conditional plea under Michigan Court Rule 6.301(C)(2) or its successor rule.
(3) The trial court may appoint appellate counsel for an indigent defendant who pleads guilty, guilty but mentally ill or nolo contendere if all of the following apply:
(a) The defendant seeks leave to appeal a sentence based upon an alleged improper scoring of an offense variable or a prior record variable.
(b) The defendant objected to the scoring or otherwise preserved the matter for appeal.
(c) The sentence imposed by the court constitutes an upward departure from the upper limit of the minimum sentence range that the defendant alleges should have been scored.
(4) While establishing that a plea of guilty, guilty but mentally ill, or nolo contendere was made understandingly and voluntarily under Michigan Court Rule 6.302 or its successor rule, and before accepting the plea, the court shall advise the defendant that, except as otherwise provided in this section, if the plea is accepted by the court, the defendant waives the right to have an attorney appointed at public expense to assist in filing an application for leave to appeal or to assist with other post conviction remedies, and shall determine whether the defendant understands the waiver. Upon sentencing, the court shall furnish the defendant with a form developed by the state court administrative office that is nontechnical and easily understood and that the defendant may complete and file as an application for leave to appeal.
(Hereinafter, the "Act").
Plaintiffs allege that, although the appointment of appellate counsel is authorized under the circumstances set forth in subsections 2 and 3, the Act will prohibit circuit court judges from appointing counsel to indigent defendants in most plea-based applications for leave to appeal (Cmpt. at ¶ 32).1
The other two Plaintiffs are attorneys. Arthur M. Fitzgerald and Michael D. Vogler allege that they earn a portion of their incomes taking assigned appeals for trial and plea based convictions. Fitzgerald is on a list of qualified attorneys to take such assignments in the 10th Circuit while Vogler is on the 26th Circuit Court's list. Plaintiffs allege that the present practice of denying appellate counsel after plea-based convictions has adversely affected the attorneys' incomes and the Act will do the same (Cmpt at ¶¶ 33-36). "Mr. Fitzgerald and Mr. Vogler also assert, under the doctrine of jus tertii, the constitutional rights of the indigent criminal defendants who will plead guilty or nolo contendere after April 1, 2000 and who will request, but be denied, the appointment of appellate counsel, based on the operation of P.A.1999, No. 200." (Cmpt. at ¶ 37). (Hereinafter, Mr. Fitzgerald and Mr. Vogler will be referred to as "the Attorneys.")
In addition to the Judges, Plaintiffs also name Michigan Attorney General Jennifer Granholm, in her official capacity, as a Defendant (Cmpt. at ¶ 11).
Plaintiffs' Complaint is filed pursuant to § 1983. They allege that the practice of the Judges violates Plaintiffs' due process and equal protection rights and that the Act will do the same (Cmpt. at ¶¶ 38-45). They assert their claims on behalf of a putative Plaintiff class consisting of all indigent Defendants who have pled or will plead guilty or nolo contendere in a Michigan court and who have or will request the appointment of appellate counsel (Cmpt. at 46). Plaintiffs' claims are asserted against the named Defendants as well as against a putative Defendant class consisting of all Michigan circuit court judges and their successors (Cmpt. at ¶ 48).
Plaintiffs' Motion for Preliminary Injunction focuses on the alleged illegality of the offending practice and the Act, while Defendants' Motion to Dismiss primarily challenges Plaintiffs' standing to bring this action and this Court's jurisdiction. Since standing and jurisdiction are threshold matters, this Opinion begins with those issues and ends with the merits of Plaintiffs' constitutional claims.
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