Duncan et al v. State of Michigan --Democratic court reinstates indigent counsel case

By John Minnis

Legal News

Like children in a divorce, indigent defendants have become pawns in the ongoing political whipsawing of the Michigan Supreme Court.

The latest decision Nov. 30 went to the ACLU of Michigan and supporters who believe the State of Michigan, under federal and state constitutions, has an obligation to provide adequate defense counsel. Something, they believe, that is not being provided.

The decision reinstates an earlier unanimous decision by the court that was reversed by a 4-3 decision just three months later.

"The original case was filed in 2007," said lead attorney Frank D. Eaman, "and here we are in 2011, and it is still held up in appeals."

In February 2007: the ACLU filed a class action suit -- Duncan et al v. State of Michigan and Gov. Jennife Ganholm -- on behalf of all indigent criminal defendants in Berrien, Muskegon and Genesee Counties. The suit, filed in Ingham County, called on the court to declare the public defense systems in the three counties unconstitutional and compel the state to provide indigent representation consistent with national standards and constitutional norms.

May 2007: Ingham County Circuit Judge Laura Baird rejected the state's motion to dismiss the case.

June 2009: The Court of Appeals rejected the state's appeal as well.

April 30, 2010: The Michigan Supreme Court unanimously upheld the appellate court's decision.

July 16, 2010: The Michigan Supreme Court ruled 4-3 on a motion to reconsider to vacate its April 30 decision and to reverse the Court of Appeals. The court's majority based its reversal on the appellate court's dissenting opinion.

Writing for the majority, Markman said, "There is no constitutional precedent that 'guarantees an indigent defendant a particular attorney' or an 'attorney of a particular level of skill'; that requires a 'predetermined amount of outside resources be available to an attorney'; or that requires that there be a 'meaningful relationship with counsel.'"

Dissenting, Chief Justice Marilyn J. Kelly countered, "The majority's decision to grant reconsideration and reverse the Court of Appeals judgment rests on no new information and on no 'palpable error.'"

The ACLU of Michigan and indigent defense attorneys and associations were dismayed by the reversal. Eaman filed his own motion for reconsideration.

September 23, 2010: In the meantime, Republican Justice Elizabeth Weaver, one of the four justices in the July 16 reversal of the Court of Appeals decision, resigned from the court. Gov. Jennifer Granholm appointed Judge Alton T. Davis, a Democrat, to fill Weaver's vacancy.

November 2, 2010: In the general election, Davis fails to keep Weaver's seat. Challenger Mary Beth Kelly and incumbent Robert A. Young, both Republicans, were elected to the court, restoring a GOP majority beginning Jan. 1, 2011.

November 30, 2010: The lame duck Democratic majority on the Michigan Supreme Court votes 4-3 on Eaman's motion for reconsideration and vacated the court's July 16 decision and reinstated its April 30 unanimous decision upholding the appellate court's refusal to dismiss the case, thus sending the Duncan case back to Ingham County for trial on its merits.

This time it was Republican Justices Maura Corrigan, Stephen Markman and Robert P. Young Jr. who took umbrage.

Justice Corrigan objected to the court's releasing its Nov. 30 order before she had a chance to write her dissenting statement.

January 1, 2011: Republican majority to be restored on Michigan Supreme Court

"The court's decision to suddenly expedite this case seems designed to prevent the new court after Jan. 1, 2011, from considering a motion for reconsideration," Justice Corrigan wrote. Markman dissented the Nov. 30 decision on the grounds that "the plaintiffs' claims are not justiciable." Corrigan and Young joined Markman in his dissent.

While Markman relied on the appellate court's dissenting opinion, Davis concurring in the Nov. 30 decision relied on Chief Justice Kelly's dissenting opinion in the July 16 flip-flop.

"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," Davis wrote. "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. ... The original, unanimous order of this court was correct, and no sufficient basis was presented for this court to have reconsidered it."

"Of course," Eaman said, "I agree with Chief Justice Kelly. The original motion presented nothing new."

The ACLU applauded the Michigan Supreme Court's latest reversal, allowing its lawsuit to proceed in order "to fix Michigan's system for providing defense to poor people in criminal cases."

"The unanimous Supreme Court decision was correct in April and is correct again today," said Michael J. Steinberg, ACLU of Michigan legal director. "It is widely accepted that Michigan's criminal justice system is broken for poor people accused of crimes. When the indigent defense system is broken, everyone suffers. Innocent men and women end up in prison while the perpetrators are left on the streets to commit more crimes."

The Michigan Campaign for Justice, a broad-based organization fighting for a fair and effective public defense system in Michigan, was thrilled with court's Nov. 30 decision.

"As the nonpartisan coalition working with state lawmakers to reform Michigan's failing public defense system, we are very pleased that the Supreme Court has reversed course and ruled once again to allow the Duncan case to move forward," said Laura Sager, executive director of the Michigan Campaign for Justice. "The court's decision is a call to action for new state lawmakers preparing to come to Lansing in January that, as they develop their Michigan reform agenda, public defense reform is an important constitutional problem that requires their attention."

Of course, what one majority decides, the next can reconsider.

"I hope it doesn't come to that," Eaman said. "Michigan is one of the worst states in the country as far as indigent defense. We just want to have a chance to have this tried on its merits."

Published: Thu, Dec 9, 2010

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