The theme for 2011? Show me the money!

By John Minnis

Legal News

As 2010 came to a close, two cases from the past year continued to be unfinished business in 2011: Third Judicial Circuit Court v. County of Wayne and Duncan et al v. State of Michigan.

In Third Judicial Circuit case, St. Clair County Circuit Judge Peter J. Deegan handed down a Halloween trick or treat, depending on your point of view, ordering Wayne County to provide adequate funding, personnel, facilities and technology for Wayne County Third Circuit Court to fulfill its judicial mandate.

The Wayne County suit was triggered when County Executive Robert Ficano, in a budget balancing act, cut the staffs of the clerk and sheriff. The cuts would have resulted in the court not being able to open the majority of the courtrooms due to lack of personnel, according to Wayne County Chief Judge Virgil Smith.

Deegan agreed and ordered the county to provide funding for an additional court personnel, sheriff deputies, janitors and contract employees to work to catch up on its court filings.

He ordered the court to "either rebuild, clean-up and secure those facilities... In the alternative, the county may secure or build new court facilities which the Third Circuit would have to approve." Deegan also ruled that all Wayne County court facilities be brought into compliance the Americans with Disabilities Act.

Lastly, Deegan hired retired, at Wayne County expense, Oakland County Circuit Judge Fred Mester as special master to facilitate his order.

Not surprisingly, Ficano was livid. In a statement titled "Judge's Outrageous Order Cripples Wayne County Government," Ficano called the ruling "outrageous," accusing Deegan "and his fellow judges" of wanting "to continue to spend without limits while everyone else pays for it."

Ficana interpreted Deegan's ruling as an attempt to give Wayne County judges more than $500 million to shore up "their massive deficit and move to a new site that is 'equal to (the judges') noble purpose.' ... Should the ruling stand, county operations will be completely crippled, and the county would become insolvent."

While Ficano accused the judges of seeking nicer digs appropriate to their "noble purpose," Judge Deegan took exception to the fact that the Wayne County executive spent $36 million to purchase and renovate the Guardian Building in downtown Detroit in order to provide "palatial offices to its executive staff."

I am told that Ficano has "backed off" his $500 million estimate of complying with Deegan's order, but the question remains: Where is the money going to come from? Without taking a stand on the merits of the case, one wonders how the county can afford to comply with the judge's order. The county is broke. The state is broke. Hell, everyone's broke.

The Duncan case also has financial ramifications to the affected counties and the state.

In February 2007, the ACLU filed Duncan, a class action suit 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.

In May 2007, Ingham County Circuit Judge Laura Baird rejected the state's motion to dismiss the case. In June 2009, the Court of Appeals rejected the state's appeal as well. On April 30 of this year, the Michigan Supreme Court unanimously upheld the appellate court's decision, but three months later, on July 16, the court ruled 4-3 on a motion to reconsider to vacate its April 30 decision and to reverse the Court of Appeals. On Nov. 30, a new Democratic majority on the court (due to the resignation of Republican Elizabeth Weaver and the subsequent appointment Democrat Alton T. Davis) voted 4-3 to undo the Republican court's July 16 decision and reinstated the Duncan case.

Since the Dec. 21 deadline to reconsider lapsed without action, one would think the Duncan case is now free to go to trial, but some court watchers are not so sure. With a new Republican majority taking over the court in January (due to Davis' failure to get elected in November), some fear Duncan may yet be revisited by the state's high court.

Again, without taking a position on Duncan, one wonders, if the case prevails and counties have to provide more funding for indigent defense, where is the money going to come from?

Further, there is a statewide effort -- the Michigan Campaign for Justice -- to provide a statewide public defender system in Michigan. And while it is a noble effort, who's going to pay for it?

There is nothing wrong with Michigan's legal system that money can't fix. The problem is finding it.

Published: Thu, Jan 6, 2011

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