CHRISTOPHER LEE DUNCAN V STATE OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
CHRISTOPHER LEE DUNCAN, BILLY JOE
BURR, JR., STEVEN CONNOR, ANTONIO
TAYLOR, JOSE DAVILA, JENNIFER
O’SULLIVAN, CHRISTOPHER MANIES, and
BRIAN SECREST,
FOR PUBLICATION
June 11, 2009
9:00 a.m.
Plaintiffs-Appellees,
v
STATE OF MICHIGAN and GOVERNOR OF
MICHIGAN,
No. 278652
Ingham Circuit Court
LC No. 07-000242-CZ
Defendants-Appellants.
CHRISTOPHER LEE DUNCAN, BILLY JOE
BURR, JR., STEVEN CONNOR, ANTONIO
TAYLOR, JOSE DAVILA, JENNIFER
O’SULLIVAN, CHRISTOPHER MANIES, and
BRIAN SECREST,
Plaintiffs-Appellees,
v
STATE OF MICHIGAN and GOVERNOR OF
MICHIGAN,
Defendants-Appellants.
CHRISTOPHER LEE DUNCAN, BILLY JOE
BURR, JR., STEVEN CONNOR, ANTONIO
TAYLOR, JOSE DAVILA, JENNIFER
O’SULLIVAN, CHRISTOPHER MANIES, and
BRIAN SECREST,
Plaintiffs-Appellees,
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No. 278858
Ingham Circuit Court
LC No. 07-000242-CZ
v
STATE OF MICHIGAN and GOVERNOR OF
MICHIGAN,
No. 278860
Ingham Circuit Court
LC No. 07-000242-CZ
Defendants-Appellants.
Before: Murphy, P.J., and Sawyer and Whitbeck, JJ.
MURPHY, P. J.
At its core, this case involves a claim that named plaintiffs, along with members of the
certified class, i.e., present and future indigent defendants subject to criminal 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 US 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 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 constitutionallydeficient 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 court’s order denying their
motion for summary disposition on the ground of governmental immunity under MCR
2.116(C)(7). In Docket No. 278858, defendants appeal by leave granted the trial court’s 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 court’s order granting class certification.
We affirm, holding that defendants are not shielded by governmental immunity, that
defendants are proper parties, that 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
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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 courts, then 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 separation of powers; it is acting in accordance with its constitutional
obligations, duties, and oaths of office. See Boumediene v Bush, __ US __; 128 S Ct 2229, 2259;
171 L Ed 2d 41 (2008); Marbury v Madison, 5 US (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 separation of
powers. Judicial modesty does not equate to ignoring constitutional obligations. Constitutional
compliance is our only concern; matters regarding the method and 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 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 trump constitutional compliance, despite any visceral reaction to the contrary. We
take no position on the validity of plaintiffs’ allegations and claims, nor are underlying
motivations of any party relevant. We simply and merely hold that plaintiffs have alleged facts
sufficient to survive summary disposition.
I. The Complaint
In a highly-detailed complaint, plaintiffs allege that the indigent defense systems now in
place in Berrien, Genesee, and Muskegon Counties are under-funded, 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
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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 prior to scheduled preliminary examinations
while in full hearing range of other inmates; counsel advising plaintiffs to waive preliminary
examinations without meaningful discussions on 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
not 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 of the named plaintiffs, as well as all of those persons fitting within
the class, the complaint alleges that the inadequacies and ineffectiveness of counsel in handling
indigent cases ultimately results from failures by the State and Governor to adequately provide
funding and fiscal and administrative oversight. According to plaintiffs, it is the failures by the
State and Governor that have caused, are causing, and will continue to cause a denial of
constitutionally adequate legal representation within the systems employed by the counties.
Count I of the complaint, which pertains only to the Governor, alleges a Sixth Amendment
violation of the right to effective or adequate representation and seeks declaratory and injunctive
relief for the constitutional violation under 42 USC 1983. Count II of the complaint, which also
pertains only to the Governor, alleges a Fourteenth Amendment violation of the right to due
process and seeks declaratory and injunctive relief for the constitutional violation under 42 USC
1983. Count III of the complaint, which pertains to the Governor and the State, alleges a
violation of the right to the effective assistance of counsel under 1963 Const, art 1, § 20 and
seeks declaratory and injunctive relief. Count IV of the complaint, which also pertains to the
Governor and the State, alleges a violation of due process under 1963 Const, art 1, § 17 and
seeks declaratory and injunctive relief.
In the prayer for relief, plaintiffs seek a court declaration that defendants’ conduct, failure
to act, and practices are unconstitutional and unlawful, consistent with the four alleged counts,
and plaintiffs seek to enjoin defendants from subjecting class members to continuing
unconstitutional practices. Plaintiffs also request an order requiring defendants "to provide
indigent defense programs and representation consistent with the requirements of the United
States and Michigan Constitutions."
II. Class Certification and Summary Disposition
Pursuant to MCR 3.501(B), plaintiffs moved for class certification, contending that the
class was sufficiently numerous such that joinder would be impractical, that factual and legal
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issues raised by the named plaintiffs were common to, and typical of, prospective class members,
that the named plaintiffs and prospective class members share or will share similar harms and
constitutional deprivations, and that the named plaintiffs would fairly and adequately protect the
interests of the class through maintenance of a class action, which would be superior to any other
method of adjudication.
Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(4), (7),
and (8). Defendants maintained that plaintiffs lacked standing, the case was not ripe for
adjudication, the trial court lacked jurisdiction on a variety of grounds, there was a failure to state
a claim upon which declaratory and injunctive relief could be granted, the wrong parties were
sued, and that governmental immunity shielded defendants from liability. The nature of each
particular argument will be discussed below in our analysis, given that defendants’ arguments are
renewed on appeal.
At a hearing in which the trial court addressed plaintiffs’ motion for class certification as
well as defendants’ motion for summary disposition, the court granted class certification and it
rejected all of the grounds raised by defendants in support of the summary disposition motion.
We shall discuss below the court’s reasoning when we examine each of the appellate issues
raised by defendants.
III. Analysis
A. Standards of Review
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Also reviewed de novo are issues
of constitutional law, Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004),
statutory interpretation, Feyz v Mercy Mem Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006),
governmental immunity, Bennett v Detroit Police Chief, 274 Mich App 307, 310-311; 732
NW2d 164 (2007), jurisdiction, Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d 249
(2003), and matters concerning justiciability, Michigan Chiropractic Council v Comm'r of the
Office of Financial & Ins Services, 475 Mich 363, 369; 716 NW2d 561 (2006).
“A trial court's ruling regarding certification of a class is reviewed for clear error,
meaning that the ruling will be found clearly erroneous only where there is no evidence to
support it or there is evidence but this Court is nevertheless ‘left with a definite and firm
conviction that a mistake has been made.’” Hill v City of Warren, 276 Mich App 299, 310; 740
NW2d 706 (2007), quoting Zine v Chrysler Corp, 236 Mich App 261, 270; 600 NW2d 384
(1999).
B. Underlying Constitutional Principles
1. The Right to Counsel Generally
“In all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance
of counsel for his defence.” US Const, Am VI. The right to counsel under the Sixth
Amendment is made applicable to the states pursuant to the Due Process Clause of the
Fourteenth Amendment. People v Williams, 470 Mich 634, 641; 683 NW2d 597 (2004), citing
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Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963). Under the Michigan
Constitution, “[i]n every criminal prosecution, the accused shall have the right to . . . have the
assistance of counsel for his or her defense.” Const 1963, art 1, § 20. Gideon made clear that the
poor and indigent are constitutionally entitled to be represented by counsel when criminally
prosecuted by the state, even though they lack the financial means to hire an attorney, and that
the state has an obligation to provide them counsel. Gideon, supra at 344. We wholeheartedly
agree with the following wise sentiments articulated by the United States Supreme Court in
Gideon:
The assistance of counsel is one of the safeguards of the Sixth Amendment
deemed necessary to insure fundamental human rights of life and liberty. . . . The
Sixth Amendment stands as a constant admonition that if the constitutional
safeguards it provides be lost, justice will not . . . be done.
[R]eason and reflection require us to recognize that in our adversary
system of criminal justice, any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless counsel is provided for him. This
seems to us to be an obvious truth. Governments, both state and federal, quite
properly spend vast sums of money to establish machinery to try defendants
accused of crime. Lawyers to prosecute are everywhere deemed essential to
protect the public's interest in an orderly society. Similarly, there are few
defendants charged with crime, few indeed, who fail to hire the best lawyers they
can get to prepare and present their defenses. That government hires lawyers to
prosecute and defendants who have the money hire lawyers to defend are the
strongest indications of the widespread belief that lawyers in criminal courts are
necessities, not luxuries. The right of one charged with crime to counsel may not
be deemed fundamental and essential to fair trials in some countries, but it is in
ours. From the very beginning, our state and national constitutions and laws have
laid great emphasis on procedural and substantive safeguards designed to assure
fair trials before impartial tribunals in which every defendant stands equal before
the law. This noble ideal cannot be realized if the poor man charged with crime
has to face his accusers without a lawyer to assist him. [Id. at 343-344
(parenthesis, citations, and all quotations omitted; second ellipsis added).]
2. The Right to the Effective Assistance of Counsel
The constitutional right to counsel encompasses the right to the effective assistance of
counsel. Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In
United States v Cronic, 466 US 648, 654-656; 104 S Ct 2039; 80 L Ed 2d 657 (1984), the
Supreme Court explained:
The special value of the right to the assistance of counsel explains why
“[i]t has long been recognized that the right to counsel is the right to the effective
assistance of counsel.” The text of the Sixth Amendment itself suggests as much.
The Amendment requires not merely the provision of counsel to the accused, but
“Assistance,” which is to be “for his defence.” Thus, “the core purpose of the
counsel guarantee was to assure ‘Assistance’ at trial, when the accused was
confronted with both the intricacies of the law and the advocacy of the public
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prosecutor.” If no actual “Assistance” “for” the accused's “defence” is provided,
then the constitutional guarantee has been violated. To hold otherwise “could
convert the appointment of counsel into a sham and nothing more than a formal
compliance with the Constitution's requirement that an accused be given the
assistance of counsel. The Constitution's guarantee of assistance of counsel cannot
be satisfied by mere formal appointment.”
***
The substance of the Constitution's guarantee of the effective assistance of
counsel is illuminated by reference to its underlying purpose. “[T]ruth,” Lord
Eldon said, “is best discovered by powerful statements on both sides of the
question.” This dictum describes the unique strength of our system of criminal
justice. “The very premise of our adversary system of criminal justice is that
partisan advocacy on both sides of a case will best promote the ultimate objective
that the guilty be convicted and the innocent go free.” It is that “very premise”
that underlies and gives meaning to the Sixth Amendment. It “is meant to assure
fairness in the adversary criminal process.” Unless the accused receives the
effective assistance of counsel, “a serious risk of injustice infects the trial itself.”
[Citations omitted.]
3. The Right to Counsel at Critical Stages of the Proceedings including Pretrial Stages
“The Sixth Amendment safeguards the right to counsel at all critical stages of the
criminal process for an accused who faces incarceration.” Williams, supra at 641. A critical
stage of the proceedings is any stage where the absence of counsel may harm a defendant’s right
to a fair trial and “applies to preliminary proceedings where rights may be sacrificed or defenses
lost.” People v Green, 260 Mich App 392, 399; 677 NW2d 363 (2004), overruled on other
grounds People v Anstey, 476 Mich 436, 447 n 9; 719 NW2d 579 (2006). Critical stages include,
in part, the preliminary examination, Coleman v Alabama, 399 US 1, 9; 90 S Ct 1999; 26 L Ed
2d 387 (1970), a pretrial lineup, People v Frazier, 478 Mich 231, 249-250 n 20; 733 NW2d 713
(2007), and the entry of a plea, People v Pubrat, 451 Mich 589, 593-594; 548 NW2d 595 (1996).
In Maine v Moulton, 474 US 159, 170; 106 S Ct 477; 88 L Ed 2d 481 (1985), the United States
Supreme Court observed:
[T]he Court has . . . recognized that the assistance of counsel cannot be
limited to participation in a trial; to deprive a person of counsel during the period
prior to trial may be more damaging than denial of counsel during the trial itself.
Recognizing that the right to the assistance of counsel is shaped by the need for
the assistance of counsel, we have found that the right attaches at earlier,
“critical” stages in the criminal justice process “where the results might well settle
the accused's fate and reduce the trial itself to a mere formality.” And,
“[w]hatever else it may mean, the right to counsel granted by the Sixth and
Fourteenth Amendments means at least that a person is entitled to the help of a
lawyer at or after the time that judicial proceedings have been initiated against
him. . . . .” This is because, after the initiation of adversary criminal proceedings,
“‘the government has committed itself to prosecute, and . . . the adverse positions
of government and defendant have solidified. It is then that a defendant finds
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himself faced with the prosecutorial forces of organized society, and immersed in
the intricacies of substantive and procedural criminal law.’” [Citations omitted;
emphasis and initial ellipsis added.]
When read together, the authorities cited above make abundantly clear that representation
by counsel, and thus effective representation by counsel, is crucial in serving to protect Sixth
Amendment rights not only at trial but also during pretrial proceedings.
4. Ineffective Assistance of Counsel Claims in Criminal Appellate Proceedings
In the context of criminal cases and appeals, our Supreme Court in People v Carbin, 463
Mich 590, 599-600; 623 NW2d 884 (2001), enunciated the basic and well-established principles
involving a claim of ineffective assistance of counsel:
To justify reversal under either the federal or state constitutions, a
convicted defendant must satisfy the two-part test articulated by the United States
Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed
2d 674 (1984). See People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797
(1994). “First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that counsel
was not performing as the ‘counsel’ guaranteed by the Sixth Amendment.”
Strickland, supra at 687. In so doing, the defendant must overcome a strong
presumption that counsel’s performance constituted sound trial strategy. Id. at
690. “Second, the defendant must show that the deficient performance prejudiced
the defense.” Id. at 687. To demonstrate prejudice, the defendant must show the
existence of a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different. Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. Because the
defendant bears the burden of demonstrating both deficient performance and
prejudice, the defendant necessarily bears the burden of establishing the factual
predicate for his claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999).
Counsel's performance is deemed deficient or ineffective when the "representation [falls]
below an objective standard of reasonableness." Strickland, supra at 687-688; People v Toma,
462 Mich 281, 302; 613 NW2d 694 (2000). The two-part Strickland test, cited in Carbin, takes
center stage in addressing the justiciability claims, where defendants vigorously argue for its
application in this civil suit seeking declaratory and prospective injunctive relief. In our
justiciability analysis, we will also explore the circumstances in which the prejudice prong of the
Strickland test is inapplicable.
C. Discussion
1. Governmental Immunity
Defendants argue that governmental immunity bars plaintiffs’ “tort” claims against the
State because they do not come within an exception to the broad grant of immunity afforded
under MCL 691.1407(1). Defendants also contend that absolute immunity bars plaintiffs’ claims
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against the Governor under MCL 691.1407(5). The trial court ruled that governmental immunity
is not available in a state court action alleging constitutional violations.
Under MCR 2.116(C)(7), summary disposition in favor of a defendant is proper when the
plaintiff’s claim is “barred because of . . . immunity granted by law.” See Odom v Wayne Co,
482 Mich 459, 466; 760 NW2d 217 (2008). The moving party may submit affidavits,
depositions, admissions, or other documentary evidence in support of the motion if substantively
admissible. Id. The contents of the complaint must be accepted as true unless contradicted by
the documentary evidence. Id.
a. The State
The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides a broad
grant of immunity from “tort liability” to government agencies, absent the applicability of a
statutory exception,1 when they are engaged in the discharge or exercise of a governmental
function. MCL 691.1407(1); Maskery v Univ of Michigan Bd of Regents, 468 Mich 609, 613;
664 NW2d 165 (2003); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 595; 363
NW2d 641 (1984). The state of Michigan is a “governmental agency” entitled to immunity as
granted under the GTLA. MCL 691.1401(c) and (d). An activity that is expressly or impliedly
authorized or mandated by constitution, statute, local charter, ordinance, or other law constitutes
a governmental function for purposes of the GTLA. Maskery, supra at 613-614, quoting MCL
691.1401(f). This Court gives the term “governmental function” a broad interpretation, but the
statutory exceptions must be narrowly construed. Maskery, supra at 614. The “immunity
protects the state not only from liability, but also from the great expense of having to contest a
trial.” Odom, supra at 478. The party that seeks to impose liability on a governmental entity has
the burden of pleading in avoidance of governmental immunity. Mack v Detroit, 467 Mich 186,
198; 649 NW2d 47 (2002).
Here, there can be no reasonable dispute that the State was engaged in a governmental
function when it delegated the representation of indigent defendants to the various counties.2
1
The statutory exceptions to governmental immunity consist of the highway exception, MCL
691.1402, the proprietary-function exception, MCL 691.1413, the governmental-hospital
exception, MCL 691.1407(4), the motor-vehicle exception, MCL 691.1405, the public-building
exception, MCL 691.1406, and the sewage-disposal-system-event exception, MCL 691.1417(2).
Odom, supra at 478 n 62.
2
MCL 775.16 provides:
When a person charged with having committed a felony appears before a
magistrate without counsel, and who has not waived examination on the charge
upon which the person appears, the person shall be advised of his or her right to
have counsel appointed for the examination. If the person states that he or she is
unable to procure counsel, the magistrate shall notify the chief judge of the circuit
court in the judicial district in which the offense is alleged to have occurred, or the
chief judge of the recorder's court of the city of Detroit if the offense is alleged to
(continued…)
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Moreover, it is the State that is ultimately mandated to ensure that indigent defendants are
provided their constitutional right to counsel. Gideon, supra; Williams, supra at 641.
Our Supreme Court has “observed that nontort causes of action are not barred by
immunity if a plaintiff successfully pleads and establishes such a cause of action.” Borg-Warner
Acceptance Corp v Dep’t of State, 433 Mich 16, 19; 444 NW2d 786 (1989). Further, in Smith v
Dep’t of Public Health, 428 Mich 540, 544; 410 NW2d 749 (1987), aff’d sub nom Will v
Michigan Dep’t of State Police, 491 US 58; 109 S Ct 2304; 105 L Ed 2d 45 (1989), the Michigan
Supreme Court held:
Where it is alleged that the state, by virtue of custom or policy, has
violated a right conferred by the Michigan Constitution, governmental immunity
is not available in a state court action.
[A] claim for damages against the state arising from violation by the state
of the Michigan Constitution may be recognized in appropriate cases. [See also
Jones v Powell, 462 Mich 329, 336; 612 NW2d 423 (2000).]
State policies are at the forefront of this litigation. “‘Governmental immunity is not
available in a state court action where it is alleged that the state has violated a right conferred by
the Michigan Constitution.”’ Honojosa v Dep’t of Natural Resources, 263 Mich App 537, 546547; 688 NW2d 550 (2004), quoting Burdette v Michigan, 166 Mich App 406, 408; 421 NW2d
185 (1988). An action that establishes unconstitutional conduct “may not be limited except as
provided by the Constitution because of the preeminence of the Constitution.” Honojosa, supra
at 546, citing Smith, supra at 641. In Smith, id., Justice Boyle observed:
MCL 691.1407; MSA 3.996(107) does not, by its terms, declare immunity
for unconstitutional acts by the state. The idea that our Legislature would
indirectly seek to “approve” acts by the state which violate the state constitution
by cloaking such behavior with statutory immunity is too far-fetched to infer from
the language of MCL 691.1407; MSA 3.996(107). We would not ascribe such a
result to our Legislature.
The Burdette panel reiterated those sentiments from Smith in addressing a due process
challenge, further reasoning:
Plaintiffs' claim alleged that defendant violated plaintiffs' due process
rights under Const 1963, art 1, § 17. Plaintiffs have stated a prima facie claim. . . .
[D]efendant cannot claim immunity where the plaintiff alleges that defendant has
(…continued)
have occurred in the city of Detroit. Upon proper showing, the chief judge shall
appoint or direct the magistrate to appoint an attorney to conduct the accused's
examination and to conduct the accused's defense. The attorney appointed by the
court shall be entitled to receive from the county treasurer, on the certificate of the
chief judge that the services have been rendered, the amount which the chief
judge considers to be reasonable compensation for the services performed.
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violated its own constitution. Constitutional rights serve to restrict government
conduct. These rights would never serve this purpose if the state could use
governmental immunity to avoid constitutional restrictions. [Burdette, supra at
408-409.]
The instant claims against the State are based solely on alleged violations of the Michigan
Constitution and concern custom and policy matters with respect to the representation of indigent
defendants. Moreover, plaintiffs’ lawsuit against the State is not a “tort liability” action.
Accordingly, the State is not shielded by immunity granted by law in this suit seeking
declaratory and injunctive relief for constitutional violations. The State, however, characterizes
plaintiffs’ claims as “constitutional tort” claims for money damages and thus governmental
immunity bars the action. The State argues that plaintiffs are actually seeking appropriations or
money from the state treasury, making plaintiffs’ action one for money damages or monetary
relief. A cause of action seeking money damages for a violation of state constitutional rights has
been coined a “state constitutional tort action.” See Jones v Sherman, 243 Mich App 611, 612613; 625 NW2d 391 (2000). Typically, a constitutional tort claim arises when a governmental
employee, exercising discretionary powers, violates constitutional rights personal to a plaintiff.
Reid v Dep’t of Corrections, 239 Mich App 621, 629; 609 NW2d 215 (2000).
We initially note that, as indicated above, “a claim for damages against the state arising
from violation by the state of the Michigan Constitution may be recognized in appropriate
cases.” Smith, supra at 544; see also Jones, supra at 336. Regardless, defendants inaccurately
characterize plaintiffs’ claims, where the gravamen of the lawsuit concerns the adequacy of
representation for indigent defendants and prays for equitable relief; this is not a tort liability
action for money damages, nor do plaintiffs request an appropriation of state funds. Plaintiffs
seek a court declaration that defendants’ practices are unconstitutional, seek to enjoin continuing
unconstitutional practices, and seek to compel the State and Governor to provide indigent
defendants representation consistent with the state and federal constitutions. Assuming that the
State would incur an unfavorable fiscal impact as the ultimate result of the proceedings, it does
not magically transform the case, for purposes of the GTLA, from an equitable action into a tort
liability action seeking a money judgment or monetary relief. See, e.g., Edelman v Jordan, 415
US 651, 666-668; 94 S Ct 1347; 39 L Ed 2d 662 (1974) (a fiscal consequence to state treasuries
resulting from compliance with equitable decrees, which by their terms are prospective in nature,
is an ancillary effect and does not mean that a money judgment had been entered). The State has
cited no convincing or even relevant authority making the GTLA applicable in this equitable
action. Accordingly, the trial court properly concluded that governmental immunity is not
available to the State.
b. The Governor
With respect to the Governor, MCL 691.1407(5) provides:
A judge, a legislator, and the elective or highest appointive executive
official of all levels of government are immune from tort liability for injuries to
persons or damages to property if he or she is acting within the scope of his or her
judicial, legislative, or executive authority. [Emphasis added.]
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“The executive power is vested in the governor[,]” Const 1963, art 5, § 1; therefore, there
can be no dispute that the Governor is the highest executive official in regard to the state level of
government. Additionally, this lawsuit necessarily relates to duties within the scope of the
Governor’s executive authority, given that “[t]he governor shall take care that the laws be
faithfully executed[,]” Const 1963, art 5, § 8. Further, in regard to the scope of executive
authority, this suit potentially affects issues of state funding, and Const 1963, art 5, § 18 provides
that “[t]he governor shall submit to the legislature at a time fixed by law, a budget for the
ensuing fiscal period setting forth in detail, for all operating funds, the proposed expenditures
and estimated revenue of the state.” However, for the reasons stated above with respect to the
State, this is not a tort liability action seeking money damages. Accordingly, MCL 691.1407(5)
affords no immunity protection for the Governor.
2. Jurisdiction and Authority to Order Various Forms of Injunctive Relief
a. Mandamus and the Governor
Defendants argue, in cursory fashion, that the trial court lacks jurisdiction to order
injunctive relief with respect to the Governor. On this issue, the trial court ruled that Michigan
law cannot immunize the Governor from federal claims under preemption principles and that the
Governor is not immune from state law claims because the suit does not entail tort liability. As
is evident, the trial court somewhat treaded on governmental immunity principles discussed
above.
In support of its contention that injunctive relief cannot issue against the Governor,
defendants cite only Straus v Governor, 459 Mich 526, 532; 592 NW2d 53 (1999), in which the
Court, quoting and adopting this Court’s opinion in the case, stated:
We would also note that, because a court at all times is required to
question sua sponte its own jurisdiction (whether over a person, the subject matter
of an action, or the limits on the relief it may afford), we have some doubt with
respect to the propriety of injunctive relief against the Governor. It is clear that
separation of powers principles, Const 1963, art 3, § 2, preclude mandatory
injunctive relief, mandamus, against the Governor. Whether similar reasoning
also puts prohibitory injunctive relief beyond the competence of the judiciary
appears to be an open question that need not be resolved in this case. We do note
that the Supreme Court has recently recognized that declaratory relief normally
will suffice to induce the legislative and executive branches, the principal
members of which have taken oaths of fealty to the constitution identical to that
taken by the judiciary, Const 1963, art 11, § 1, to conform their actions to
constitutional requirements or confine them within constitutional limits. Only
when declaratory relief has failed should the courts even begin to consider
additional forms of relief in these situations. The need for utmost delicacy on the
part of the judiciary, and respect for the unique office of Governor, [has been] . . .
recognized [by this Court.] [Citations omitted.]
In part, plaintiffs seek declaratory relief, and the quoted passage from Straus makes clear
that the courts have the authority to issue a declaratory judgment against the Governor, which
should be the first course of action before even contemplating injunctive relief. Plaintiffs also
-12-
seek to enjoin continuing unconstitutional practices or, stated otherwise, prohibitory injunctive
relief. Such a remedy could potentially entail a cessation of criminal prosecutions against
indigent defendants absent constitutional compliance with the right to counsel. Straus indicates
that the Court was not resolving the question whether the judiciary is constrained from ordering
prohibitory injunctive relief against the Governor and, given that defendants do not present any
additional arguments on the issue, we decline to find that the trial court lacks authority or
jurisdiction to enjoin the Governor from continuing unconstitutional practices. In regard to the
issue of mandatory injunctive relief (mandamus), plaintiffs do seek to compel the Governor to
provide indigent defendants representation consistent with the state and federal constitutions. As
will be discussed below, we believe that there may exist a basis to subject the Governor to a
mandamus order under Michigan law in regard to state constitutional violations, where this case,
if proven, would reflect the existence of impediments in the ability of the judiciary to carry out
its duties in compliance with constitutional principles relative to indigent defendants being
prosecuted in state courtrooms. However, we need not specifically answer the question because
the Governor is also being sued for alleged federal constitutional violations under 42 USC 1983,
which allows for mandatory injunctive relief.3 A review of Straus reveals that it did not involve
a claim brought under 42 USC 1983, alleging a violation of a federal constitutional right. 42
USC 1983 provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer's judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable. . . .
[Emphasis added.]
Even though a state official is a “person” in the literal sense, “a suit against a state official
in his or her official capacity is not a suit against the official but rather is a suit against the
official's office[, and,] [a]s such, it is no different from a suit against the State itself.” Will v
Michigan Dep’t of State Police, 491 US 58, 71; 109 S Ct 2304; 105 L Ed 2d 45 (1989)(citations
omitted). However, “a state official in his or her official capacity, when sued for injunctive
relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief
are not treated as actions against the State.’” Id. at 71 n 10, quoting Kentucky v Graham, 473 US
3
“[T]he Michigan Constitution does not afford greater protection than federal precedent with
regard to a defendant’s right to counsel when it involves a claim of ineffective assistance of
counsel.” People v Pickens, 446 Mich 298, 302; 521 NW2d 797 (1994). Plaintiffs’ request for
mandamus-type relief encompasses, without distinction, both the alleged state and the alleged
federal constitutional deprivations; therefore, considering that the federal constitutional rights
parallel those under the Michigan Constitution, if there is a state violation, there would be a
federal violation, implicating relief under 42 USC 1983.
-13-
159, 167 n 14; 105 S Ct 3099; 87 L Ed 2d 114 (1985), citing Ex parte Young, 209 US 123, 159160; 28 S Ct 441; 52 L Ed 714 (1908); see also Hafer v Melo, 502 US 21, 27; 112 S Ct 358; 116
L Ed 2d 301 (1991). The suit against the Governor qualifies as an official-capacity suit, id. at
24, 27, and the action seeks equitable relief in the form of a declaratory judgment and an
injunction, thereby providing prospective relief. The Governor can thus be sued for injunctive
relief under 42 USC 1983, which makes clear that equitable relief is available for a federal
constitutional violation and that, if there is any limitation on granting injunctive relief, the
limitation pertains only to judicial officers. See Van Orden v Perry, 545 US 677; 125 S Ct 2854;
162 L Ed 2d 607 (2005)(Texas resident commenced § 1983 action against the governor and other
state officials, seeking declaratory relief and an injunction that would require the removal of the
Ten Commandments from the capitol on the basis of an Establishment Clause violation). There
is no language in 42 USC 1983 suggesting that equitable relief in the form of a mandatory
injunction or mandamus is not available against the Governor, or that there is a distinction to be
made between prohibitory injunctive relief and mandatory injunctive relief.
In Felder v Casey, 487 US 131, 139; 108 S Ct 2302; 101 L Ed 2d 123 (1988), the United
States Supreme Court made clear the broad reach of a § 1983 action, stating:
Section 1983 creates a species of liability in favor of persons deprived of
their federal civil rights by those wielding state authority. As we have repeatedly
emphasized, “the central objective of the Reconstruction-Era civil rights statutes .
. . is to ensure that individuals whose federal constitutional or statutory rights are
abridged may recover damages or secure injunctive relief.” Thus, § 1983 provides
“a uniquely federal remedy against incursions . . . upon rights secured by the
Constitution and laws of the Nation,” and is to be accorded “a sweep as broad as
its language.”
Any assessment of the applicability of a state law to federal civil rights
litigation, therefore, must be made in light of the purpose and nature of the federal
right. This is so whether the question of state-law applicability arises in § 1983
litigation brought in state courts, which possess concurrent jurisdiction over such
actions, or in federal-court litigation, where, because the federal civil rights laws
fail to provide certain rules of decision thought essential to the orderly
adjudication of rights, courts are occasionally called upon to borrow state law.
Accordingly, we have held that a state law that immunizes government conduct
otherwise subject to suit under § 1983 is preempted, even where the federal civil
rights litigation takes place in state court, because the application of the state
immunity law would thwart the congressional remedy, which of course already
provides certain immunities for state officials. [Citations omitted; omissions in
original.]
Accordingly, any state law (statutory, constitutional, or common) that can be read to
exclude the Governor from being compelled to act, or otherwise subjected to any type of
injunction, is preempted when suit for equitable relief is brought against the Governor pursuant
to 42 USC 1983 for violation of the federal constitution, regardless of the fact that the suit is
litigated in state court.
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b. Appropriations from the State Treasury
Defendants also argue that only the Legislature, as opposed to the trial court or any court,
has the authority or jurisdiction to appropriate funds from the state treasury. In support of their
position, defendants rely on Musselman v Governor, 448 Mich 503; 533 NW2d 237 (1995). In
Musselman, the plaintiffs, current and retired public school employees who were members of the
Michigan Public School Employees Retirement System, alleged that the state had failed to fund
retirement healthcare benefits being earned by employees, thereby violating Const 1963, art 9,
§ 24. The plaintiffs sought a “writ of mandamus ordering the appropriate official to transfer
funds from the school aid fund to the reserve for health benefits.” Id. at 521. Our Supreme
Court held that the state was constitutionally “obligated to prefund health care benefits under art
9, § 24.” Id. at 524. The Court, however, denied mandamus, ruling that it had “no authority to
order the Governor or the Legislature to appropriate funds[.]” Id. The Musselman Court
reasoned:
Given that the plaintiffs have failed to show that there is a pool of funds
available to be transferred to the reserve for health benefits, the requested relief
necessarily involves funds from the state treasury. The only defendant with
authority to appropriate funds from the treasury is the Legislature. “No money
shall be paid out of the state treasury except in pursuance of appropriations made
by law.” Const 1963, art 9, § 17.
In this context, this Court lacks the power to require the Legislature to
appropriate funds. This was the understanding of the drafters of art 9, § 24, who
likewise did not contemplate that the prefunding requirement could be enforced
by a court. They expected that the decision to comply rested ultimately with the
Legislature, whom the people would have to trust[.] [Id. at 522.4]
It appears to us that equally problematic would be a court order directing the enactment
of legislation or administrative rules, or the issuance of executive or administrative orders, in
order to correct any constitutional deficiencies in the court-appointed, indigent defense systems.
See Const 1963, art 4, § 1 (“The legislative power of the State of Michigan is vested in a senate
and a house of representatives.”); Const 1963, art 5, § 17 (“The governor shall communicate by
message to the legislature at the beginning of each session and may at other times present to the
4
The Supreme Court subsequently granted rehearing and issued Musselman v Governor (On
Rehearing), 450 Mich 574, 576-577; 545 NW2d 346 (1996), wherein the former majority of four
in the case lost Chief Justice Brickley who now decided that it was unnecessary to construe
Const 1963, art 9, § 24 because mandamus could not ultimately issue to order the appropriation
or transfer of funds. Thus, while there was no longer a majority regarding interpretation of Const
1963, art 9, § 24, there still remained a majority rejecting a mandamus remedy. See Studier v
Michigan Pub School Employees’ Retirement Bd, 472 Mich 642, 650-659; 698 NW2d 350
(2005)(discussing the Musselman cases and resolving the open issue regarding construction of
Const 1963, art 9, § 24).
-15-
legislature information as to the affairs of the state and recommend measures he considers
necessary or desirable.).5
Here, again, plaintiffs seek a court declaration that defendants’ practices are
unconstitutional, seek to enjoin continuing unconstitutional practices, and seek to compel
defendants to provide indigent defendants representation consistent with the state and federal
constitutions. In the prayer for relief, plaintiffs are not expressly seeking an appropriation or
transfer of state funds, nor expressly demanding the enactment of legislation. We acknowledge
that plaintiffs allege that the systemic constitutional deficiencies have been caused by inadequate
state funding and the lack of fiscal and administrative oversight. We further recognize that,
should plaintiffs prevail, funding and legislation would seemingly appear to be the measures
needed to be taken to correct constitutional violations. However, we are not prepared to rule on
the issue whether the trial court has the authority to order appropriations, legislation, or
comparable steps. It is unnecessary to do so at this juncture in the proceedings.
There is no dispute that declaratory relief is an available remedy falling within the trial
court’s jurisdiction and authority. As indicated in Straus, supra at 532, “[o]nly when declaratory
relief has failed should the courts even begin to consider additional forms of relief[.]” With
respect to the state constitutional claims, which are the only claims brought against the State,
should plaintiffs prevail, declaratory relief alone needs to be initially contemplated. And if the
State takes corrective action without further need for intervention by the trial court, injunctive
relief and the authority to issue constitutionally questionable forms of such relief would no
longer be at issue. Additionally, while 42 USC 1983 does not place a limit on a court to first
attempt resolution through a declaratory judgment alone, it is possible that upon entry of a
declaratory judgment, the Governor would take corrective measures to comply with
constitutional requirements.6 Accordingly, the issue of injunctive relief may never come to
fruition.
Furthermore, defendants do not argue that the trial court lacks authority or jurisdiction to
enjoin them from continuing unconstitutional practices; therefore, there is the potential that
constitutional compliance could occur through issuance of prohibitory injunctive relief, without
reaching questions concerning mandatory injunctive relief or mandamus or compelling
defendants to act by way of appropriations or legislation.
Additionally, other than defendants’ argument that injunctive relief can never issue
against the Governor, which argument we rejected above, defendants do not contend that the
judiciary lacks the authority or jurisdiction to enter an order compelling, in broad and general
terms, compliance with constitutional mandates. Defendants’ argument merely decries court
5
“While strong arguments can be made that state funding would be a more desirable system of
court financing, it is for the Legislature to determine whether to adopt such a system.” Grand
Traverse Co v Michigan, 450 Mich 457, 472; 538 NW2d 1 (1995).
6
The trial court would necessarily enter a declaratory judgment before, or contemporaneous
with, entry of an order granting injunctive relief.
-16-
intervention in the appropriation of funds from the state treasury. However, the entry of an order
simply compelling the State and Governor to provide indigent defendants representation
consistent with the state and federal constitutions does not necessarily mean that the State is
being required by the court to appropriate funds to come into compliance. Theoretically, there
may be creative alternatives available to satisfy constitutional mandates concerning the right to
counsel.
We can only speculate at this time regarding the measures ultimately needed to be taken
in order to come into compliance with the state and federal constitutions, assuming plaintiffs
establish their case.7 Only when all other possibilities are exhausted and explored, as discussed
above, does there arise issues regarding appropriations and legislation, the separation of powers,
and the full extent of court jurisdiction and authority. Therefore, we find no need at this time for
this Court to conclusively speak to the questions posed. That being said, we wish to make clear
that nothing in this opinion should be read as foreclosing entry of an order granting the type of
relief so vigorously challenged by defendants. We take that stand for two reasons. First, unlike
Musselman, federal constitutional violations are alleged here and brought pursuant to 42 USC
1983. In the context of federal law, and keeping in mind the broad reach of a § 1983 action, we
note the following passage from the United States Supreme Court’s decision in Edelman, supra
at 667-668:
As in most areas of the law, the difference between the type of relief
barred by the Eleventh Amendment and that permitted under Ex parte Young will
not in many instances be that between day and night. The injunction issued in Ex
parte Young was not totally without effect on the State's revenues, since the state
law which the Attorney General was enjoined from enforcing provided substantial
monetary penalties against railroads which did not conform to its provisions.
Later cases from this Court have authorized equitable relief which has probably
had greater impact on state treasuries than did that awarded in Ex parte Young. In
Graham v Richardson, 403 US 365, 29 L Ed 2d 534, 91 S Ct 1848 (1971),
Arizona and Pennsylvania welfare officials were prohibited from denying welfare
benefits to otherwise qualified recipients who were aliens. In Goldberg v Kelly,
397 US 254, 25 L Ed 2d 287, 90 S Ct 1011 (1970), New York City welfare
officials were enjoined from following New York State procedures which
authorized the termination of benefits paid to welfare recipients without prior
7
The dissent indicates that this litigation will inevitably superimpose a statewide and statefunded system for the representation of indigent criminal defendants. There is, however, no
certainty that this will occur, even if it may be a goal sought to be achieved by plaintiffs. The
dissent jumps ahead to an envisioned remedy, where plaintiffs have not proven, nor even tried
their case yet, where legislative or congressional action on the issue, which has received much
attention as of late, could conceivably occur before and regardless of this litigation, and where
other avenues of constitutional compliance have not been explored, given the stage of the
proceedings. Ultimately, and again assuming plaintiffs are successful, constitutional compliance
could come in any variety or combination of forms. Our overriding concern is constitutionality,
not the chosen path by which constitutional compliance is achieved.
-17-
hearing. But the fiscal consequences to state treasuries in these cases were the
necessary result of compliance with decrees which by their terms were
prospective in nature. State officials, in order to shape their official conduct to the
mandate of the Court's decrees, would more likely have to spend money from the
state treasury than if they had been left free to pursue their previous course of
conduct. Such an ancillary effect on the state treasury is a permissible and often
an inevitable consequence of the principle announced in Ex parte Young, supra.
[Emphasis added.]
Our second reason for not accepting outright defendants’ arguments is the Michigan
Supreme Court’s decision in 46th Circuit Trial Court v Crawford Co, 476 Mich 131; 719 NW2d
553 (2006). The case involved “a conflict between the legislative branch’s exercise of the
‘legislative power’ to appropriate and to tax, and the judicial branch’s inherent power to compel
sufficient appropriations to allow the judiciary to carry out its essential judicial functions.” Id. at
134. The plaintiff circuit court sought to compel “counties to appropriate funding for the
enhanced pension and retiree health care plans it deem[ed] necessary to recruit and retain
adequate staff to allow it to carry out its essential judicial functions.” Id.
The Supreme Court indicated that the judiciary has the extraordinary and inherent power
to compel funding, which power is derived from the separation of powers set forth in Const
1963, arts 4-6 and Const 1963, art 3, § 2. Id. at 140-141. The Court explained:
[J]ust as it is implicit in the separation of powers that each branch of
government is empowered to carry out the entirety of its constitutional powers,
and only these powers, it is also implicit that each branch must be allowed
adequate resources to carry out its powers. Although the allocation of resources
through the appropriations and taxing authorities lies at the heart of the legislative
power, and thus belongs to the legislative branch, in those rare instances in which
the legislature's allocation of resources impacts the ability of the judicial branch
to carry out its constitutional responsibilities, what is otherwise exclusively a part
of the legislative power becomes, to that extent, a part of the judicial power.
***
In order for the judicial branch to carry out its constitutional
responsibilities as envisioned by Const 1963, art 3, § 2, the judiciary cannot be
totally beholden to legislative determinations regarding its budgets. While the
people of this state have the right to appropriations and taxing decisions being
made by their elected representatives in the legislative branch, they also have the
right to a judiciary that is funded sufficiently to carry out its constitutional
responsibilities.
Thus, the judiciary's “inherent power” to compel appropriations sufficient
to enable it to carry out its constitutional responsibilities is a function of the
separation of powers provided for in the Michigan Constitution. The “inherent
power” does not constitute an exception to the separation of powers; rather, it is
integral to the separation of powers itself. What is exceptional about the
judiciary's “inherent power” is its distinctiveness from more traditional exercises
-18-
of the judicial power, involving as it does determinations that directly implicate
the appropriations power.
However, in order to accommodate this distinctive, and extraordinary,
judicial power with the normal primacy of the legislative branch in determining
levels of appropriations, the “inherent power” has always been sharply
circumscribed. The “inherent power” contemplates only the power, when an
impasse has arisen between the legislative and judicial branches, to determine
levels of appropriation that are “reasonable and necessary” to enable the
judiciary to carry out its constitutional responsibilities. However, levels of
appropriation that are optimally required for the judiciary remain always
determinations within the legislative power. [Id. at 142-144 (emphasis added).]
If indeed there exist systemic constitutional deficiencies in regard to the right to counsel
and the right to the effective assistance of counsel, it is certainly arguable that 46th Circuit Trial
Court lends authority for a court to order defendants to provide funding at a level that is
constitutionally satisfactory. The state of Michigan has the obligation under Gideon to provide
indigent defendants with court-appointed counsel, and the “state” is comprised of three branches,
including the judiciary. Const 1963, art 3, § 2. Ultimately, it is the judiciary, on a day-in-dayout basis, that is integrally involved with ensuring that, before prosecutions go forward, indigent
defendants are provided counsel, without which the court could not carry out its constitutional
responsibilities. Musselman did not entail the constitutional implications that arise here, which
include the ability of the judicial branch to carry out its functions in a constitutionally sound
manner.
In sum, we reiterate that we decline at this time to define the full extent of the trial court’s
equitable authority and jurisdiction beyond that recognized and accepted above.8
3. Jurisdiction – Court of Claims versus the Circuit Court
Defendants contend that the Court of Claims has exclusive jurisdiction over this case.
The trial court found that defendants relied on cases involving tort claims for money damages in
making this jurisdictional argument and, because plaintiffs are seeking prospective relief that is
purely equitable, the case did not belong in the Court of Claims.
8
We have ruled that declaratory relief is available and we have ruled that prohibitory injunctive
relief is available, assuming establishment of plaintiffs' case, both remedies being requested by
plaintiffs. It is true that we have not set boundaries with respect to mandatory injunctive relief;
however, as indicated above, Straus dictates that restraint be exercised if and until declaratory
relief fails to accomplish constitutional compliance. Moreover, the decision not to set the
parameters relative to mandatory injunctive relief, or even had we chosen not to speak to the
issue at all, would not serve as a basis to dismiss the action, given that other relief is available.
-19-
MCL 600.6419 provides in pertinent part:
(1) Except as provided in sections 6419a and 6440, the jurisdiction of the
court of claims, as conferred upon it by this chapter, shall be exclusive. . . . The
court has power and jurisdiction:
(a) To hear and determine all claims and demands, liquidated and
unliquidated, ex contractu and ex delicto, against the state and any of its
departments, commissions, boards, institutions, arms, or agencies.
***
(4) This chapter shall not deprive the circuit court of this state of
jurisdiction over . . . proceedings for declaratory or equitable relief, or any other
actions against state agencies based upon the statutes of this state in such case
made and provided, which expressly confer jurisdiction thereof upon the circuit
court . . . .
To interpret MCL 600.6419 correctly, it must be read in conjunction with MCL
600.6419a, which provides in full:
In addition to the powers and jurisdiction conferred upon the court of
claims by section 6419, the court of claims has concurrent jurisdiction of any
demand for equitable relief and any demand for a declaratory judgment when
ancillary to a claim filed pursuant to section 6419. The jurisdiction conferred by
this section is not intended to be exclusive of the jurisdiction of the circuit court
over demands for declaratory and equitable relief conferred by section 605.
In Parkwood Ltd Dividend Housing Ass’n v State Housing Dev Auth, 468 Mich 763, 775;
664 NW2d 185 (2003), our Supreme Court construed these provisions and held:
Today we hold that pursuant to the plain language of § 6419(1)(a), the
Court of Claims has exclusive jurisdiction over complaints based on contract or
tort that seek solely declaratory relief against the state or any state agency. We
disavow any contrary statements found in our prior case law that have seemingly
interpreted § 6419(1)(a) as granting the Court of Claims jurisdiction over claims
for money damages only.
Consistent with our discussion earlier in this opinion, plaintiffs’ complaint is not based on
tort, and it is indisputable that it is not based on contract. The Parkwood Court interpreted MCL
600.6419(4) “as maintaining the jurisdiction of the circuit court over those declaratory claims
against the state that do not involve contract or tort.” Parkwood, supra at 774 (emphasis added).
The Court further stated:
This jurisdiction of the circuit court is concurrent with the jurisdiction of
the Court of Claims over such claims in the circumstances set out in § 6419a, see
n 7. That is, when such a declaratory action is ancillary to another claim within
the Court of Claims exclusive jurisdiction under § 6419, the circuit court and the
-20-
Court of Claims have concurrent jurisdiction over the declaratory action. [Id. at
774 n 10.]
Footnote 7 in Parkwood, id. at 772, referenced above, provides:
We construe the enactment of § 6419a as having added to this jurisdiction
by clarifying that the Court of Claims also has jurisdiction over other declaratory
and equitable claims, specifically, those that relate neither to contract nor tortover which the circuit court would otherwise have exclusive jurisdiction-when
those claims are ancillary to a claim within the court's exclusive jurisdiction under
§ 6419.
Thus, the Court of Claims, while having exclusive jurisdiction over complaints based on
contract or tort that seek solely declaratory relief against the state, also has concurrent
jurisdiction over complaints seeking declaratory and equitable relief not based on tort or contract
if ancillary to a contract or tort claim. Because there is no contract or tort claim whatsoever here,
the Court of Claims has neither exclusive nor concurrent jurisdiction. The trial court did not err
in ruling that the instant case does not belong in the Court of Claims.
4. Proper Parties to the Litigation
Defendants argue that the action should have been filed against the judiciary and the
counties that administer the indigent criminal defense systems. The trial court found that even
though defendants have essentially delegated their constitutional duties to the counties, it does
not ultimately relieve defendants of their constitutional responsibilities.
Under MCL 775.16, a circuit court’s chief judge is made responsible for procuring
representation for indigent defendants and county treasurers are obligated to pay reasonable
compensation to appointed attorneys. In re Recorder’s Court Bar Ass’n v Wayne Circuit Court,
443 Mich 110, 122; 503 NW2d 885 (1993). However, it would be erroneous to assume “that the
statutory purpose underlying assigned counsels' right to reasonable compensation was to assure
that indigent criminal defendants received effective assistance of counsel.” Id. at 123.
“Appointed counsel had a statutory right to reasonable compensation for services provided to
criminal indigent defendants long before indigent criminal defendants had a right, statutory or
otherwise, to appointed counsel.” Id. at 123-124.
In Frederick v Presque Isle Co Circuit Judge, 439 Mich 1, 15; 476 NW2d 142 (1991),
our Supreme Court stated that the courts are part of Michigan’s one court of justice under Const
1963, art 6, § 1; however, “the Legislature retains power over the county and may delegate to the
local governments certain powers,” which it did by enacting a statute that directs certain actions
of chief judges and county treasurers, MCL 775.16. Thus, the counties do not have any
independent constitutional obligation, apart from the state, in paying for the representation of
indigent defendants. Rather, their obligations arise solely out of state statute and, as indicated in
In re Recorder’s Court, supra at 123-124, the purpose of the statute was not to secure the
constitutional right to counsel. The counties could be sued for failure to comply with MCL
775.16; however, that is not the basis or thrust of the instant suit, nor do defendants cite any
joinder rules or law requiring plaintiffs to include the counties as parties. Indeed, defendants
themselves have not sought to join the counties as parties to the suit under the court rules, MCR
-21-
2.204 to 2.206. Regardless, we agree with the trial court's assessment that, even though the
counties have been given responsibility for the operation and funding of trial courts through the
Legislature’s delegation powers, including payment of court-appointed counsel for indigent
defendants, it does not relieve defendants of their constitutional duties under Gideon. Even were
we to assume that the counties are necessary parties, it does not form a basis to dismiss the suit
against defendants.
With respect to the judiciary, a circuit court’s chief judge plays the main role in obtaining
legal services for indigent defendants as reflected in MCL 775.16. Additionally, MCR 8.123(B),
which applies to all trial courts,9 provides that the courts “must adopt a local administrative order
that describes the court’s procedures for selecting, appointing, and compensating counsel who
represent indigent parties in that court.” An order must be submitted to the State Court
Administrator for review, and the Administrator must approve the plan “if its provisions will
protect the integrity of the judiciary.” Moreover, the judiciary is of course a branch of state
government. See Grand Traverse Co v Michigan, 450 Mich 457, 473; 538 NW2d 1 (1995)
(“courts have always been regarded as part of state government” despite county funding).
Accordingly, the judiciary or the courts in the three counties could have been named as
defendants in this action. However, again, defendants cite no joinder rules or laws that required
plaintiffs to include the courts in the suit; it was a matter of choice for plaintiffs. And, once
again, defendants are not somehow relieved of their constitutional duties and entitled to dismissal
even if the courts were or should have been sued.
5. Justiciability and Statement of a Claim for Declaratory and Injunctive Relief
Defendants argue that plaintiffs lack standing and that their claims are not ripe for
adjudication because the pre-conviction ineffectiveness claims are too remote, speculative, and
abstract to warrant the issuance of declaratory and injunctive relief. Defendants also contend
that plaintiffs failed to state a claim upon which relief may be granted, considering that they have
an adequate remedy at law in the form of individual criminal appeals. Defendants rely chiefly on
Strickland and its two-part test relative to claims of ineffective assistance of counsel. Defendants
posit that the need to show injury or harm, relative to justiciability, necessarily equates to
establishing deficient performance of counsel and satisfying the prejudice prong of an ineffective
assistance claim typically applicable in criminal appeals, which prejudice, and therefore
justiciable harm, can only be based on the rendering of an unreliable verdict, compromising the
right to a fair trial. Pre-conviction ineffectiveness, standing alone, is simply insufficient to
establish a case. Stated otherwise, defendants assert that a Sixth Amendment violation does not
occur until there is a deficient performance by counsel and prejudice arising out of an unfair
trial. Therefore, in the context of this civil suit claiming a Sixth Amendment infringement, the
injury or harm needed to make the case justiciable requires satisfaction of the same two elements
and that has not been shown.
9
MCR 8.123(A).
-22-
The trial court found that plaintiffs had standing and that their claims were ripe for
adjudication, rejecting the argument that convictions or the complete denial of counsel were
necessary to litigate the case. With respect to Strickland, the court indicated that it was unsure
whether Strickland had any application to plaintiffs’ pretrial claims of inadequate representation;
however, the court was of the opinion that it would not have to delve into the circumstances of
each particular criminal case. Thus, the trial court concluded that plaintiffs had stated a claim
upon which relief could be granted.
a. Justiciability Generally
Both the state and federal constitutions confer only “judicial power” on the courts, US
Const, art III, § 1 and Const 1963, art 3, § 2, and the United States Constitution expressly
provides that judicial power is limited to cases and controversies, US Const, art III, § 2.
Michigan Chiropractic, supra at 369. In order to prevent the judiciary from usurping the power
of coordinate branches of government, our Supreme Court and the federal courts have developed
justiciability doctrines to ensure that lawsuits filed in the courts are appropriate for judicial
action, and these “include the doctrines of standing, ripeness, and mootness.” Id. at 370-371.
Federal courts have held that standing and mootness are constitutionally derived doctrines and
jurisdictional in nature, given that failure to satisfy the elements of these doctrines implicates the
constitutional authority of the courts to only exercise judicial power and to solely adjudicate
actual cases or controversies. Id. at 371. Michigan case law has similarly viewed the
justiciability doctrines as affecting judicial power, “the absence of which renders the judiciary
constitutionally powerless to adjudicate [a] claim.” Id. at 372.
In Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 614-615; 684
NW2d 800 (2004), our Supreme Court explained the concept of “judicial power,” stating:
The “judicial power” has traditionally been defined by a combination of
considerations: the existence of a real dispute, or case or controversy; the
avoidance of deciding hypothetical questions; the plaintiff who has suffered real
harm; the existence of genuinely adverse parties; the sufficient ripeness or
maturity of a case; the eschewing of cases that are moot at any stage of their
litigation; the ability to issue proper forms of effective relief to a party; the
avoidance of political questions or other non-justiciable controversies; the
avoidance of unnecessary constitutional issues; and the emphasis upon
proscriptive as opposed to prescriptive decision making.
With respect to the proper exercise of the “judicial power,” the most critical element is
the mandate that there exist a genuine case or controversy between the parties, meaning that the
dispute between the parties is real, not hypothetical. Michigan Citizens for Water Conservation v
Nestlé Waters North America Inc, 479 Mich 280, 293; 737 NW2d 447 (2007).
b. Standing Principles
On the doctrine of standing, the Supreme Court in Michigan Citizens, id. at 294-295,
quoting Nat’l Wildlife, supra at 628-629, quoting Lee v Macomb Co Bd of Comm’rs, 464 Mich
726, 739; 629 NW2d 900 (2001), quoting Lujan v Defenders of Wildlife, 504 US 555, 560-561;
112 S Ct 2130; 119 L Ed 2d 351 (1992), stated that the following three elements must be proven:
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First, the plaintiff must have suffered an injury in fact - an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of - the injury has to
be fairly traceable to the challenged action of the defendant, and not the result [of]
the independent action of some third party not before the court. Third, it must be
likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision. [External and internal quotations and ellipsis omitted.]
c. Ripeness Principles
With regard to the doctrine of ripeness, it precludes the adjudication of hypothetical or
contingent claims before an actual injury has been sustained, and an action is not ripe if it rests
on contingent future events that may not occur as anticipated or may not occur at all. Michigan
Chiropractic, supra at 371 n 14. Although standing and ripeness are both justiciability doctrines
that assess pending claims to discern whether an actual or imminent injury in fact is present, they
address different underlying concerns. Id. at 378-379. The standing doctrine “is designed to
determine whether a particular party may properly litigate the asserted claim for relief.” Id. at
379. On the other hand, the ripeness doctrine “does not focus on the suitability of the party;
rather, ripeness focuses on the timing of the action.” Id.
d. Declaratory Relief
With respect to declaratory judgment actions, MCR 2.605(A)(1), (C), and (F)
respectively provide as follows:
In a case of actual controversy within its jurisdiction, a Michigan court of
record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought
or granted.
***
The existence of another adequate remedy does not preclude a judgment
for declaratory relief in an appropriate case.
***
Further necessary or proper relief based on a declaratory judgment may be
granted, after reasonable notice and hearing, against a party whose rights have
been determined by the declaratory judgment.
The “actual controversy” requirement found in MCR 2.605(A)(1) has been described as
“‘a summary of justiciability as the necessary condition for judicial relief.’” Associated Builders
& Contractors v Dep’t of Consumer & Industry Services Director, 472 Mich 117, 125; 693
NW2d 374 (2005), quoting Allstate Ins Co v Hayes, 442 Mich 56, 66; 499 NW2d 743 (1993). A
court cannot declare the obligations and rights of parties regarding an issue if the issue is not
justiciable, meaning that it does not entail a genuine, live controversy between interested persons
-24-
who are asserting adverse claims, which, if decided, can affect existing legal relations.
Associated Builders, supra at 125, quoting Allstate Ins, supra at 66.
e. Injunctive Relief
Finally, in regard to injunctive relief, an injunction constitutes an extraordinary remedy
that may be issued only when justice requires it, there is an absence of an adequate remedy at
law, and there exists the danger of irreparable injury that is real and imminent. Pontiac Fire
Fighters Union Local 376 v City of Pontiac, 482 Mich 1, 8; 753 NW2d 595 (2008).
f. Justiciability Framework
In constructing the broad analytical framework for addressing the justiciability issues in
connection with the particular allegations made by plaintiffs, we find guidance in Lewis v Casey,
518 US 343; 116 S Ct 2174; 135 L Ed 2d 606 (1996). In Lewis, the respondents were 22 inmates
imprisoned in various facilities operated by the Arizona Department of Corrections (ADOC), and
they filed a class action lawsuit on behalf of all adult prisoners who were currently or will be
incarcerated by the ADOC, alleging deprivations of their fundamental constitutional right of
access to the courts. Id. at 346. The action was brought in reliance on Bounds v Smith, 430 US
817, 828; 97 S Ct 1491; 52 L Ed 2d 72 (1977), in which it was held that “the fundamental
constitutional right of access to the courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law.” See Lewis, supra at 346.
Following a three-month bench trial in Lewis, the federal district court ruled in favor of the
respondents, concluding that the respondents had a constitutional right of access to the courts
that is meaningful, adequate, and effective, and that the ADOC’s system failed to comply with
these constitutional standards. The district court tailored an injunctive remedy that was sweeping
in scope, ensuring that the ADOC would provide meaningful court access. The United States
Court of Appeals for the Ninth Circuit affirmed, with minor exceptions related to the terms of the
injunction. Id. at 346-348.
On certiorari granted, the petitioners argued that, in order to establish a Bounds violation,
an inmate needed to show that any alleged inadequacy of a prison’s law library facilities or legal
assistance programs caused an actual injury, or in other words, “‘actual prejudice with respect to
contemplated or existing litigation, such as the inability to meet a filing deadline or to present a
claim.’” Id. at 348. The petitioners further argued that the district court failed to find sufficient
instances of actual injury that would warrant systemwide relief. Id. The Supreme Court held:
We agree that the success of respondents' systemic challenge was
dependent on their ability to show widespread actual injury, and that the court's
failure to identify anything more than isolated instances of actual injury renders
its finding of a systemic Bounds violation invalid. [Id. at 349.]
The United States Supreme Court then proceeded to provide the underlying rationale and
reasoning for its holding:
The requirement that an inmate alleging a violation of Bounds must show
actual injury derives ultimately from the doctrine of standing, a constitutional
-25-
principle that prevents courts of law from undertaking tasks assigned to the
political branches. It is the role of courts to provide relief to claimants, in
individual or class actions, who have suffered, or will imminently suffer, actual
harm; it is not the role of courts, but that of the political branches, to shape the
institutions of government in such fashion as to comply with the laws and the
Constitution. In the context of the present case: It is for the courts to remedy past
or imminent official interference with individual inmates' presentation of claims
to the courts; it is for the political branches of the State and Federal Governments
to manage prisons in such fashion that official interference with the presentation
of claims will not occur. Of course, the two roles briefly and partially coincide
when a court, in granting relief against actual harm that has been suffered, or that
will imminently be suffered, by a particular individual or class of individuals,
orders the alteration of an institutional organization or procedure that causes the
harm. But the distinction between the two roles would be obliterated if, to invoke
intervention of the courts, no actual or imminent harm were needed, but merely
the status of being subject to a governmental institution that was not organized or
managed properly. If - to take another example from prison life - a healthy inmate
who had suffered no deprivation of needed medical treatment were able to claim
violation of his constitutional right to medical care simply on the ground that the
prison medical facilities were inadequate, the essential distinction between judge
and executive would have disappeared: it would have become the function of the
courts to assure adequate medical care in prisons. [Id. at 349-350 (citations
omitted).]
We derive much from this passage. It indicates that inmates do not incur harm, for
purposes of justiciability analysis and the constitutional right of access to the courts, simply
because of their status as inmates in the prison system and their exposure to the possibility of
being denied meaningful court access because of the institution's lack of proper management and
organization. There needs to be interference with the presentation of a claim to the court, just as
inmates must first be ill and in need of prison medical treatment before being able to claim
deprivation of a constitutional right to medical care. By analogy, here criminal defendants do
not incur harm, for purposes of justiciability analysis and the constitutional right to the effective
assistance of counsel, simply because of their status as indigent defendants with court-appointed
counsel subject to prosecutorial proceedings in a system with presumed existing deficiencies.
There needs to be an instance of deficient performance or inadequate representation, i.e.,
"representation [falling] below an objective standard of reasonableness." Strickland, supra at
687-688; Toma, supra at 302. Lewis does not indicate that the harm must include, besides
interference with the right of access to the courts, a showing that the inmate would have been
successful in court had access been made available. This proposition is further reflected in the
Lewis Court's subsequent observations with respect to actual harm:
Because Bounds did not create an abstract, freestanding right to a law
library or legal assistance, an inmate cannot establish relevant actual injury simply
by establishing that his prison's law library or legal assistance program is subpar
in some theoretical sense. That would be the precise analog of the healthy inmate
claiming constitutional violation because of the inadequacy of the prison
infirmary. Insofar as the right vindicated by Bounds is concerned, “meaningful
-26-
access to the courts is the touchstone,” and the inmate therefore must go one step
further and demonstrate that the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim. He might show,
for example, that a complaint he prepared was dismissed for failure to satisfy
some technical requirement which, because of deficiencies in the prison's legal
assistance facilities, he could not have known. Or that he had suffered arguably
actionable harm that he wished to bring before the courts, but was so stymied by
inadequacies of the law library that he was unable even to file a complaint.
[Lewis, supra at 351 (citation omitted).]
There is no suggestion in the two examples that the hypothetical inmate had to show that
the dismissed or un-filed complaint would likely have resulted in a favorable court outcome
following litigation; the lack of or interference with court access itself to one non-frivolously
seeking access sufficed for establishing harm. See id. at 353.10
The Lewis Court went on to find that the district court had identified only two instances
of actual injury, and the Court then turned to the issue of whether those two injuries justified the
remedy ordered by the district court. Id. at 357. The Court noted that the remedy has to be
“limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Id.
The Court further explained that this principle is just as applicable with respect to class actions.
Id. According to Lewis, standing is necessary in class actions and named plaintiffs representing
the class must allege and show personal injury. Id. The Lewis Court concluded that there was a
failure to show that the constitutional violations were systemwide; therefore, granting a remedy
beyond what was necessary to provide relief to the two injured inmates was improper. Id. at 360.
Nevertheless, the message that flows from Lewis, which is that in cases where systemwide
constitutional violations are proven, prospective equitable relief to prevent further violations is a
proper remedy.
The absence of widespread and systemic harm in Lewis was the downfall of the case
presented by the inmate respondents. Here, if plaintiffs are to succeed, they must prove
widespread and systemic constitutional violations that are actual or imminent, constituting the
harm necessary to establish justiciability. In addressing this appeal and the justiciability issues,
we find that, on the basis of the posture of the lower court proceedings, our attention needs to be
directed solely at the allegations in plaintiffs' complaint. In Lewis, supra at 357-358, the
Supreme Court, quoting Lujan, supra at 561, made the following observations:
The general allegations of the complaint in the present case may well have
sufficed to claim injury by named plaintiffs, and hence standing to demand
remediation, with respect to various alleged inadequacies in the prison system,
including failure to provide adequate legal assistance to non-English-speaking
10
While we look to Lewis to provide a general framework, we are examining a different
constitutional right and one that is expressly provided for in the state and federal constitutions.
Our harm analysis later in this opinion is additionally shaped by case law directly addressing the
same constitutional right at stake here.
-27-
inmates and lockdown prisoners. That point is irrelevant now, however, for we
are beyond the pleading stage.
“‘Since they are not mere pleading requirements, but rather an
indispensable part of the plaintiff's case, each element [of standing] must be
supported in the same way as any other matter on which the plaintiff bears the
burden of proof, i.e., with the manner and degree of evidence required at the
successive stages of the litigation. At the pleading stage, general factual
allegations of injury resulting from the defendant's conduct may suffice, for on a
motion to dismiss we presume that general allegations embrace those specific
facts that are necessary to support the claim. In response to a summary judgment
motion, however, the plaintiff can no longer rest on such mere allegations, but
must set forth by affidavit or other evidence specific facts, which for purposes of
the summary judgment motion will be taken to be true. And at the final stage,
those facts (if controverted) must be supported adequately by the evidence
adduced at trial.’” [Alteration in original.]
Here, the justiciability and Strickland issues were raised under both MCR 2.116(C)(4)
(summary disposition for lack of subject-matter jurisdiction) and MCR 2.116(C)(8) (summary
disposition for failure to state a claim). “In reviewing a motion under MCR 2.116(C)(4), it is
proper to consider the pleadings and any affidavits or other documentary evidence submitted by
the parties to determine if there is a genuine issue of material fact.” Toaz v Dep’t of Treasury,
280 Mich App 457, 459; 760 NW2d 325 (2008); see also Cork v Applebee’s of Michigan, Inc,
239 Mich App 311, 315; 608 NW2d 62 (2000)(Under MCR 2.116(C)(4), “this Court must
determine whether the pleadings demonstrate that the defendant was entitled to judgment as a
matter of law, or whether the affidavits and other proofs show that there was no genuine issue of
material fact.”). MCR 2.116(C)(8) provides for summary disposition where “[t]he opposing
party has failed to state a claim on which relief can be granted.” A motion for summary
disposition under MCR 2.116(C)(8) tests the legal sufficiency of a complaint. Beaudrie v
Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). The trial court may only consider the
pleadings in rendering its decision. Id. All factual allegations in the pleadings must be accepted
as true. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380-381; 563 NW2d
23 (1997).
As opposed to the circumstances in Lewis, we are addressing matters of justiciability at a
very early stage in the proceedings and not in the context of completed trial proceedings or a
summary disposition motion involving the submission of documentary evidence. The lower
court record reveals that defendants’ justiciability-related arguments were set forth without
reliance on documentary evidence. And the argument that plaintiffs failed to state a claim for
declaratory and injunctive relief, which only implicated MCR 2.116(C)(8), couched defendants'
entire Strickland analysis. Defendants did not engage in an effort to show an absence of a
genuine factual dispute with respect to whether plaintiffs’ claims were justiciable; their argument
was purely legal in nature and attacked the alleged inadequacy of the pleadings. Even though
defendants could have taken a “documentary evidence” approach for purposes of MCR
2.116(C)(4), as indicated in Toaz and Cork, supra, they chose not to do so, attempting instead to
dispose of the case in quick fashion without being buried in the discovery process. Accordingly,
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the focus in addressing the justiciability issues under the principles articulated above must be on
the allegations in plaintiffs’ highly detailed complaint.11
g. Defining Justiciable Harm for Purposes of this Suit
Plaintiffs seek a declaratory judgment and prohibitory and mandatory injunctions, which
remedies are prospective in nature, in an effort to stop alleged ongoing constitutional violations
and to prevent future violations. As we view it, plaintiffs would be entitled to declaratory relief,
in the context of this case and assuming establishment of causation, if they can show widespread
and systemic instances of actual harm. The right to any prospective injunctive relief tends to
concern the question of whether the harm sought to be avoided in the future is imminent, and we
conclude that harm is imminent if plaintiffs can show widespread and systemic instances of
actual harm that have occurred in the past under the current indigent defense systems being
employed by the counties. Accordingly, regardless of whether the focus is on declaratory relief
or on injunctive relief, the proofs will require a showing of widespread and systemic instances of
actual harm, thereby making the action justiciable.12 The next step, therefore, is for us to define
“harm” for purposes of this action.
We hold that, in the context of this class action civil suit seeking prospective relief for
alleged widespread constitutional violations, injury or harm is shown when court-appointed
counsel's representation falls below an objective standard of reasonableness (deficient
performance) and results in an unreliable verdict or unfair trial, when a criminal defendant is
actually or constructively denied the assistance of counsel altogether at a critical stage in the
proceedings, or when counsel's performance is deficient under circumstances in which prejudice
would be presumed in a typical criminal case. We further hold that injury or harm is shown
when court-appointed counsel's performance or representation is deficient relative to a critical
stage in the proceedings and, absent a showing that it affected the reliability of a verdict, the
deficient performance results in a detriment to a criminal defendant that is relevant and
11
In Nat’l Wildlife, supra at 631, our Supreme Court stated:
[A] plaintiff must include in the pleadings “general factual allegations”
that injury will result from the defendant's conduct. If the defendant brings a
motion for summary disposition, the plaintiff must further support the allegations
of injury with documentation, just as he has to support the other allegations that
make up his claim. Finally, when the matter comes to trial, the plaintiff must
sufficiently support his claim, including allegations of injury, to meet his burden
of proof.
While here there was a motion for summary disposition, it was confined by the parties to
the pleadings and the allegations, and it was entertained by the trial court shortly after the filing
of the complaint. The case was truly at a pleading-assessment level.
12
Of course, plaintiffs are not precluded from introducing other evidence that has a tendency to
show that future harm is imminent.
-29-
meaningful in some fashion, e.g., unwarranted pretrial detention. Finally, we hold that, when it
is shown that court-appointed counsel's representation falls below an objective standard of
reasonableness with respect to a critical stage in the proceedings, there has been an invasion of a
legally protected interest and harm occurs. Plaintiffs must additionally show that instances of
deficient performance and denial of counsel are widespread and systemic and that they are
caused by weaknesses and problems in the court-appointed, indigent defense systems employed
by the three counties, which are attributable to and ultimately caused by defendants'
constitutional failures.13 If the aggregate of harm reaches such a level as to be pervasive and
persistent (widespread and systemic), the case is justiciable and declaratory relief is appropriate,
as well as injunctive relief to preclude future harm and constitutional violations that can
reasonably be deemed imminent in light of the existing aggregate of harm. See Milliken, supra
at 282 (remedies ordered by court, while usually not the province of the judiciary, were proper
where designed to counter pervasive and persistent constitutional violations within the school
system).
Plaintiffs will no doubt have a heavy burden to prove and establish their case, but for now
we are only concerned with whether plaintiffs have sufficiently alleged supportive facts. While
we leave it to the trial court to determine the parameters of what constitutes "widespread,"
"systemic," or “pervasive” constitutional violations or harm, the court must take into
consideration the level or degree of any shown harm, giving more weight to instances of
deficient performance that resulted in unreliable verdicts and instances where the right to counsel
was denied, with less weight being given where there is mere deficient performance. We find
that the allegations in plaintiffs’ complaint are sufficient to establish the existence of a genuine
case or controversy between the parties, reflecting a dispute that is real, not hypothetical.
In summation of the approach to be taken on remand, plaintiffs must show the existence
of widespread and systemic instances of actual or constructive denial of counsel and instances of
deficient performance by counsel, which instances may have varied and relevant levels of
egregiousness, all causally connected to defendants' conduct. Furthermore, because the proofs
could be so wide ranging, it would reflect poor judgment on our part to set a numerical threshold
with respect to the courts determination of whether the instances of harm, if shown, are
sufficiently “widespread and systemic” as to justify relief. The trial court is in a better position
to first address this issue, subject of course to appellate review.
13
In its discussion of class action certification, the dissent states, "Unlike the majority, I am
unwilling to presume that every alleged deficiency in every indigent criminal defendant's case is
the result of the alleged deficiencies in the county indigent defense systems." Post at 47. We
agree with the dissent that no presumption should exist, but are at a loss in regard to why the
dissent concludes that we are making such a presumption. Throughout this opinion, we indicate
that plaintiffs will have to establish a causal connection between deficient performance and the
indigent defense systems being employed. There will likely be occasions in which counsel for
an indigent defendant acted below an objective standard of reasonableness, yet the deficient
performance cannot be attributed to problems in an indigent defense system; some attorneys may
be lacking in skills, and no amount of money, time, and resources will make a difference. Again,
proving their case will be a mountainious undertaking for plaintiffs.
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We glean from the dissenting opinion that our colleague is of the position that the only
avenue, judiciary-wise, to address problems in the indigent defense systems employed by the
three counties is through a standard criminal appeal as reflected in Strickland. The dissent also
contends that a claim of ineffective assistance of counsel requires a conviction and deprival of a
fair trial as reflected in an unreliable verdict, even in this class action civil suit, given the holding
in Strickland. Because of the dissent's position, it is concluding that we are necessarily making a
per se finding of prejudice, and thereby a per se finding of justiciability, relative to the claims of
pre-conviction ineffectiveness. Stated otherwise, the dissent finds that we are assuming that the
individual plaintiffs and class members will be convicted, that defendants' actions caused the
convictions, that the courts addressing the criminal cases will not correct any constitutional
deficiencies, and that this action will redress their injuries. We are not making any such
assumptions, and we respectfully conclude that the dissent simply fails to appreciate the nature
and character of this civil action brought by a fluid class of plaintiffs that seeks a declaration of
unconstitutionality and prospective, system-wide relief to prevent ongoing and future
constitutional violations.
It is our view that Strickland and its many progeny, which demand deficient performance
by counsel and, generally speaking, prejudice in order to entitle a criminal defendant to relief
under the Sixth Amendment, have to be understood and viewed in context. The fundamental
flaw in defendants’ and the dissent's position on the justiciability issues is that the argument is
grounded on principles intended to be applied in the context of postconviction criminal appeals
that is not workable or appropriate to apply when addressing standing, ripeness, and related
justiciability principles in this type of civil rights lawsuit. We cannot properly foist the
framework of the criminal appellate process upon the justiciability analysis that governs this civil
case simply because state and federal constitutional rights related to the right to counsel are
implicated. We reject the argument that the need to show that this case is justiciable necessarily
and solely equates to showing widespread instances of deficient performance accompanied by
resulting prejudice in the form of an unreliable verdict that compromises the right to a fair trial.
It is entirely logical to generally place the decisive emphasis in a court opinion on the
fairness of a trial and the reliability of a verdict when addressing a criminal appeal alleging
ineffective assistance because the appellant is seeking a remedy that vacates the verdict and
remands the case for a new trial. Indeed, it can instantly be gleaned from the opening paragraph
in Strickland that it has little relevance here, wherein the Court stated:
This case requires us to consider the proper standards for judging a
criminal defendant's contention that the Constitution requires a conviction or
death sentence to be set aside because counsel's assistance at the trial or
sentencing was ineffective. [Strickland, supra at 671.]
In the case sub judice seeking prospective relief to prevent future harm, we are not
judging whether a conviction or sentence should be set aside because of the ineffective assistance
of counsel. Applying the two-part test from Strickland here as an absolute requirement defies
logic, where the allegations concern widespread, systemic instances of constitutionally
-31-
inadequate representation, and where the requested remedy in the form of prospective relief
seeks to curb and halt continuing acts of deficient performance. What is essentially harmlesserror analysis14 is being confused with justiciability analysis in a case involving an altogether
different remedy. The right to counsel must mean more than just the right to an outcome.
A simple hypothetical illustrates the inappropriateness of applying, solely, the two-part
Strickland test and in taking a position that the only avenue of relief is a criminal appeal.
Imagine that, in 100 percent of indigent criminal cases being handled by court-appointed
counsel, it could be proven that the proceedings were continuously infected with instances of
deficient performance by counsel, yet the trial verdicts were all deemed reliable, assuming all
cases went to trial. As often the case, appellate courts affirm guilty verdicts despite inadequate
representation and deficient performance because there existed strong and untainted evidence of
guilt. In our scenario, under defendants' and the dissent's reasoning, court intervention in a class
action suit such as the one filed here would not be permitted on justiciability grounds despite the
constitutionally egregious circumstances. This is akin to taking a position that indigent
defendants who are ostensibly guilty are unworthy or not deserving of counsel who will perform
at or above an objective standard of reasonableness. The holding set forth in Gideon becomes
empty and meaningless under such a rationale. Widespread and systemic instances of deficient
performance caused by a poorly equipped appointed-counsel system will not cease and be cured
with a case-by-case examination of individual criminal appeals, given that prejudice is generally
required and often not established. Even though a criminal appeal may occasionally result in a
new trial, it has no bearing on eradication of continuing systemic constitutional deficiencies.
Thus, contrary to defendants' argument and the dissent's position, there is no adequate legal
remedy for the harm that plaintiffs are attempting to prevent.15
Contrary to the dissent's contention, we are not engaging in any per se findings of
prejudice, standing, justiciability, or otherwise. Rather, we are merely indicating that if it is
proven, as alleged, that there have been widespread and systemic instances of deficient
performance and denial of counsel, along with proof of the requisite causation,
unconstitutionality can be declared and harm in ongoing and future criminal prosecutions of
indigent defendants can be deemed imminent, thereby giving rise to a right to an equitable
remedy. Concluding that an invasion of a legally protected interest is imminent will always
carry with it some modicum of speculation; however, there is no case law of which we are aware
which suggests that a showing of imminent harm is insufficient to permit judicial intervention.
Indeed, the case law is to the contrary. See, e.g., Michigan Citizens, supra at 294-295. The
dissent also fails to acknowledge that plaintiffs have alleged wrongful convictions.
14
Harmless-error analysis mirrors the analysis governing review of the prejudice prong of an
ineffective assistance claim and also implicates a new trial remedy. See MCL 769.26; People v
Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999).
15
We are assuming, for purposes of this issue and in contemplation of the elements necessary to
merit injunctive relief, that a criminal appeal constitutes a “legal remedy.” Generally, “[a]ctual
damages is a legal, rather than an equitable, remedy[.]” Anzaldua v Band, 457 Mich 530, 541;
578 NW2d 306 (1998).
-32-
We additionally find that defendants' and the dissent's position ignores the reality that
harm can take many shapes and forms. Consistent with the concept of prejudice as employed in
criminal appeals, we would agree that justiciable injury or harm is certainly evidenced by a
showing that there existed a reasonable probability that, but for an error by counsel, the result of
a criminal proceeding would have been different. See Carbin, supra at 599-600. But injury or
harm also occurs when there are instances of deficient performance by counsel at critical stages
in the criminal proceedings that are detrimental to an indigent defendant in some relevant and
meaningful fashion, even without neatly wrapping the justiciable harm around a verdict and trial.
Such harm arises, for example, when there is an unnecessary prolonged pretrial detention, a
failure to file a dispositive motion, entry of a factually unwarranted guilty plea, or a legally
unacceptable pretrial delay.16 And as indicated above, simply being deprived of the
constitutional right to effective representation at a critical stage in the proceedings, in and of
itself, gives rise to harm.
Further, even in criminal appeals there are situations in which the prejudice prong need
not be satisfied. In Strickland, supra at 692, the Supreme Court stated that “[a]ctual or
constructive denial of the assistance of counsel altogether is legally presumed to result in
prejudice.” The Cronic Court similarly observed that constitutional error exists without a
showing of prejudice when counsel is “prevented from assisting the accused during a critical
stage of the proceeding.” Cronic, supra at 659 n 25. The concept of constructive denial of
16
It is not difficult to conceive of scenarios in which a criminal defendant suffers a detriment or
“harm” as a result of an attorney’s deficient performance, absent consideration of any trial.
Effective assistance of counsel at a preliminary examination can potentially result in a dismissal
of the prosecutor’s case, as opposed to the case being bound over to the circuit court if counsel's
performance was instead deficient. Effective assistance of counsel at a pretrial hearing can
potentially result in the exclusion of a confession or an identification, leading to a nolle prosequi
or dismissal, whereas a deficient performance by counsel, including a failure to even file a
motion challenging the confession or identification, could leave the prosecution's case intact and
strong. Effective assistance of counsel in plea negotiations can potentially produce a guilty plea
on a warranted charge much less serious than the one initially brought by the prosecution that
was factually unwarranted, but an ineffective attorney in comparable circumstances might have
his or her client plead guilty to the more serious and overcharged offense. Effective assistance of
counsel at a bail hearing might result in a defendant being able to bond out prior to trial, whereas
ineffective assistance at the same hearing could leave the defendant sitting in a jail cell pending
trial. An effective attorney may win a dismissal of a prosecutor’s case for failure by the state to
provide a speedy trial to a defendant, as opposed to a situation involving ineffective
representation, where the lawyer fails to recognize a speedy trial issue. These are but a few
examples in which the effective assistance of counsel would either end the case prior to trial and
conviction or otherwise benefit a defendant in some favorable fashion; deficient performance, on
the other hand, results in a detriment to the defendant. Under a scenario in which an unfiled
pretrial motion would have precluded a trial from taking place, a criminal defendant still suffers
some level of harm or injury by having his or her life unnecessarily put on hold by the trial
process even in a situation where the defendant proceeds to trial and is acquitted. Plaintiffs’
complaint encompasses performance deficiencies during the pretrial stages mentioned in this
footnote.
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counsel was explored in Cronic, wherein the Court stated that “if counsel entirely fails to subject
the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth
Amendment rights that makes the adversary process itself presumptively unreliable.” Id. at 659.
The Strickland Court made clear that where there is actual or constructive denial of counsel
“prejudice . . . is so likely that case-by-case inquiry into prejudice is not worth the cost.”
Strickland, supra at 692. Strickland also provided “that prejudice is presumed when counsel is
burdened by an actual conflict of interest.” Id. Taking into consideration this precedent for the
purpose of analyzing justiciability, it is reasonable to conclude that justiciable harm or injury
exists when there is an actual denial of counsel, there is an overwhelmingly deficient
performance by counsel equating to constructive denial of counsel, or when counsel with
conflicting interests represents an indigent defendant. As will be detailed below, plaintiffs'
complaint contains allegations that fit within the categories of actual and constructive denial of
counsel, as well as allegations that encompass other situations in which prejudice is presumed.
Our conclusion that the two-part test in Strickland should not control this litigation is
generally consistent with case law from other jurisdictions addressing comparable suits.17
A case heavily cited on the topic at hand is Luckey v Harris, 860 F2d 1012 (CA 11,
1988). Luckey was an action commenced “on behalf of a bilateral class consisting of all indigent
persons presently charged or who will be charged in the future with criminal offenses in the
courts of Georgia and of all attorneys who represent or will represent indigent defendants in the
Georgia courts[.]” Id. at 1013. The plaintiffs alleged systemic deficiencies with respect to the
appointment of counsel for indigent defendants that resulted in deprivations of various
constitutional rights, including the Sixth Amendment right to counsel. The alleged deficiencies
included delays in the appointment of counsel, pressure on attorneys to enter guilty pleas or to
hurry cases to trial, and inadequate resources. Relying on Strickland, the federal district court
dismissed the action for, in part, failure to state a claim. Id. at 1013, 1016. The United States
Court of Appeals for the Eleventh Circuit reversed, ruling,
[The Strickland] standard is inappropriate for a civil suit seeking
prospective relief. The [S]ixth [A]mendment protects rights that do not affect the
outcome of a trial. Thus, deficiencies that do not meet the “ineffectiveness”
standard may nonetheless violate a defendant's rights under the [S]ixth
[A]mendment. In the post-trial context, such errors may be deemed harmless
17
In summary of our position regarding the applicability and relevance of Strickland, we note the
following points. We reject the conclusion that Strickland only allows for judicial intervention
by way of a criminal appeal, and not the type of action pursued here, to address issues
concerning the right to counsel and the effective assistance of counsel. We reject the conclusion
that Strickland requires us to find that justiciability, for purposes of this action, can only be
established by showing deficient performances, coupled with convictions that are unreliable or
resulting from unfair trials. However, with respect to general underlying principles espoused in
Strickland, and repeated in hundreds if not thousands of cases across the country, e.g., deficient
performance equates to representation falling below an objective standard of reasonableness, we
have no qualms.
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because they did not affect the outcome of the trial. Whether an accused has been
prejudiced by the denial of a right is an issue that relates to relief - whether the
defendant is entitled to have his or her conviction overturned - rather than to the
question of whether such a right exists and can be protected prospectively. . . .
Where a party seeks to overturn his or her conviction, powerful
considerations warrant granting this relief only where that defendant has been
prejudiced. The Strickland [C]ourt noted the following factors in favor of
deferential scrutiny of a counsel's performance in the post-trial context: concerns
for finality, concern that extensive post-trial burdens would discourage counsel
from accepting cases, and concern for the independence of counsel. These
considerations do not apply when only prospective relief is sought.
Prospective relief is designed to avoid future harm. Therefore, it can
protect constitutional rights, even if the violation of these rights would not affect
the outcome of a trial. [Id. at 1017.]
We fully agree with the statements and observations made in this passage, and they
mirror our thoughts voiced above. Petitions for rehearing and suggestions of rehearing en banc
were denied. Luckey v Harris, 896 F2d 479 (CA 11, 1989), cert den 495 US 957; 110 S Ct 2562;
109 L Ed 2d 744 (1990). Eventually, the plaintiffs’ case was dismissed on unrelated abstention
grounds. Luckey v Miller, 976 F2d 673 (CA 11, 1992).18 Defendants and the dissent here favor
the approach twice rejected in the Luckey cases. We choose not to give weight to a dissenting
judge's analysis that failed to convince a majority of judges on the Eleventh Circuit of its
correctness.
In Platt v Indiana, 664 NE2d 357, 362 (Ind App, 1996), a civil suit was brought seeking
injunctive relief premised on the contention “that the system for providing legal counsel for
indigents in Marion County lacks sufficient funds for pretrial investigation and preparation
which inherently causes ineffective assistance of counsel at trial.” The plaintiffs alleged that the
public defender system violated the fundamental right to effective pretrial assistance of counsel
under the Sixth Amendment. Id. The appellate court first cited principles from Strickland and
Cronic and then ruled:
18
The court, citing Younger v Harris, 401 US 37; 91 S Ct 746; 27 L Ed 2d 669 (1971), stated
that “abstention from interference in state criminal proceedings served the vital consideration of
comity between the state and national governments.” Luckey, supra, 976 F2d at 676. Comity is
defined as “[c]ourtesy among political entities (as nations, states, or courts of different
jurisdictions), involving esp. mutual recognition of legislative, executive, and judicial acts.”
Black’s Law Dictionary (7th ed). The Luckey Court invoked abstention because of concerns
regarding the possibility that, if relief were granted to the plaintiffs, the federal court would have
to force the state to promulgate uniform standards related to prosecutions and that the federal
court would have to review and interrupt ongoing state proceedings. Luckey, supra, 976 F2d at
678-679. Thus, it was the potential of a federal court intermeddling in state prosecution practices
that served as the basis of the abstention ruling. Here, abstention issues have no relevance.
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Here, Platt seeks to enjoin the Marion County public defender system
because it effectively denies indigents the effective assistance of counsel.
However, a violation of a Sixth Amendment right will arise only after a defendant
has shown he was prejudiced by an unfair trial. This prejudice is essential to a
viable Sixth Amendment claim and will exhibit itself only upon a showing that
the outcome of the proceeding was unreliable. Accordingly, the claims presented
here are not reviewable under the Sixth Amendment as we have no proceeding
and outcome from which to base our analysis. [Platt, supra at 363 (citation
omitted).]
This cursory analysis is flawed for all the reasons that we expressed earlier in this
opinion. Moreover, the opinion is essentially silent with respect to any particular allegations of
deficient performance and harm, and it indicates that the court was not presented with any
criminal proceedings and outcomes. In the instant case, plaintiffs allege wrongful trial
convictions, instances wherein prejudice would be presumed, and situations in which counsel
was actually or constructively denied. We find Platt wholly unpersuasive.
There is also the case of Kennedy v Carlson, 544 NW2d 1 (Minn, 1996), in which the
chief public defender brought suit. The Minnesota Supreme Court noted that the public defender
claimed “that his clients have been exposed to the possibility of substandard legal
representation[.]” (Emphasis added.) The court, without any reference whatsoever to Strickland
and its two-part test, stated:
We note that appellants cite a number of decisions by other courts
addressing the issue of public defense funding. In those cases where courts have
found a constitutional violation due to systemic underfunding, the plaintiffs
showed substantial evidence of serious problems throughout the indigent defense
system. By comparison, Kennedy has shown no evidence that his clients actually
have been prejudiced due to ineffective assistance of counsel. To the contrary, the
evidence establishes that Kennedy's office is well-respected by trial judges, it is
well-funded when compared to other public defender offices, and its attorneys
have faced no claims of professional misconduct or malpractice. [Id. at 6-7.]
The Minnesota court then proceeded to cite several cases in which courts from other
jurisdictions have adjudicated matters related to systemic constitutional deficiencies arising out
of the right to effective counsel. Id. at 7-8. The court then ruled:
The majority of the cases discussed above cite evidence of substandard
representation by court appointed defense counsel, generally supplied by a
particular defendant, as contributing to the court's decision to intervene. Kennedy,
however, has not shown that his attorneys provide substandard assistance of
counsel to their clients. . . .
In short, Kennedy's claims of constitutional violations are too speculative
and hypothetical to support jurisdiction in this court. The district court did not
find that Kennedy's staff had provided ineffective assistance to any particular
client, nor did it find that Kennedy faced professional liability as a result of his
office's substandard services. Nor do any of Kennedy's clients join him in
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attacking the statutory funding scheme at issue here by presenting evidence of
inadequate assistance in particular cases. In light of Kennedy's failure to provide
more substantial evidence of an “injury in fact” to himself or his clients, we hold
that the district court erred in granting Kennedy's summary judgment motion. [Id.
at 8.]
Here, we have a class of plaintiffs who have been, are being, or will be subjected to the
court-appointed, indigent defense systems employed in Berrien, Muskegon, and Genesee
Counties. Further, we have extensive allegations of substandard representation and ineffective
assistance of counsel. Thus, given the distinctions between Kennedy and the instant action, the
ultimate holding in Kennedy is simply inapposite and its underlying discussion tends to supports
our ruling.
In New York Co Lawyers’ Ass’n v New York, 192 Misc2d 424, 430-431; 745 NYS2d 376
(2002), the New York court rejected a Strickland approach, reasoning:
Prejudice, as an aspect of the Strickland test, is examined more generally
under the State Constitution in the context of whether defendant received
meaningful representation. See, People v. Hobot, 84 N.Y.2d 1021, 1022, 646
N.E.2d 1102, 1103, 622 N.Y.S.2d 675, 676 (1995) (the test is whether counsel's
errors seriously compromise a defendant's right to a fair trial). . . . The purpose is
to ensure that a defendant has the assistance necessary to justify society's reliance
on the outcome of the proceedings. Notably, New York is concerned as much
with the integrity of the judicial process as with the issue of guilt or innocence,
and therefore this court finds the more taxing two-prong Strickland standard used
to vacate criminal convictions inappropriate in a civil action that seeks
prospective relief premised on evidence that the statutory monetary cap provisions
and compensation rates currently subject children and indigent adults to a severe
and unacceptable risk of ineffective assistance of counsel. This court further finds
Strickland’s reliance on post-conviction review provides no guarantee that the
indigent will receive adequate assistance of counsel under the New York
Constitution in the context of this action. Accordingly, because the right to
effective assistance of counsel in New York is much more than just the right to an
outcome, threatened injury is enough to satisfy the prejudice element and obtain
prospective injunctive relief to prevent further harm.
In Quitman Co v Mississippi, 910 So2d 1032 (Miss, 2005), the county itself commenced
a civil action for declaratory and injunctive relief, alleging that by imposing an obligation on the
county to fund the representation of indigent defendants, the state of Mississippi breached its
constitutional duties to provide adequate representation for indigent criminal defendants.
Consistent with our opinion, the Mississippi Supreme Court stated:
In [the first appeal], this Court held that the County would be entitled to
the prospective statewide relief it seeks if it established the cost of an effective
system of indigent criminal defense, the county's inability to fund such a system,
and the failure of the existing system to provide indigent defendants in Quitman
County with the tools of an adequate defense. The circuit judge ruled that the
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County failed to establish these facts . . . . The County asserts that “[t]he evidence
at trial established each of these elements.”
The State correctly points out that “[c]ommon sense suggests that if
Quitman County claims there is widespread and pervasive ineffectiveness, the
most probative evidence to support that claim would be testimony about specific
instances when the public defenders' performance fell below ‘an objective
standard of reasonableness' as measured by the professional norms.” [Citing
Strickland.] The State also asserts that the circuit judge expected to hear such
testimony at trial since the County alleged in its complaint that requiring each
county to pay for its own public defenders did not satisfy the constitutional
requirements for effective assistance of counsel. The record reflects that no such
evidence was presented at trial. . . . .
***
The County did not present any evidence on any one of the central factual
allegations in its complaint, and the County did not try to show specific examples
of when the public defenders' legal representation fell below the objective
standard of professional reasonableness. [Quitman, supra at 1037.]
The Mississippi Supreme Court allowed the case to go forward on the basis of the
allegations in the complaint, Mississippi v Quitman Co, 807 So2d 401 (Miss, 2001), which is all
that we are doing, and our plaintiffs must ultimately prove their case to obtain relief, which the
county in Quitman failed to accomplish.
We finally note Benjamin v Fraser, 264 F3d 175 (CA 2, 2001), which was a suit that
involved the question of whether pretrial detainees had demonstrated the existence of current and
ongoing constitutional violations and the need for the continuation of prospective relief with
respect to impediments to attorney-client jail visitations. The United States Court of Appeals for
the Second Circuit stated that “[i]n considering burdens on the Sixth Amendment right to
counsel, we have not previously required that an incarcerated plaintiff demonstrate ‘actual
injury’ in order to have standing.” Id. at 186. The court further asserted that “[i]t is not clear to
us what ‘actual injury’ would even mean as applied to a pretrial detainee’s right to counsel.” Id.
Read in context, the Benjamin Court was simply indicating, consistent with our position, that a
Strickland-like prejudice requirement, arising out of a trial and conviction, is not applicable if the
right to counsel has been violated.
Having set the analytical framework, including the appropriate standard for justiciable
harm, we now move on to applying the allegations in plaintiffs’ complaint to the framework.
h. Application of Complaint Allegations to Justiciability Principles
(i) Harm and the Named Plaintiffs
Plaintiff Duncan alleges that he pled guilty to an overcharged crime that was factually
unwarranted because of his attorney's inadequate representation. Plaintiff Burr alleges that he
had to endure a delay before an acceptable misdemeanor plea was offered to him, which only
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occurred after counsel advised him to plead guilty to the charged felony and after Burr demanded
that counsel speak further to the prosecutor. Plaintiff Connor alleges that there was a basis to
suppress a warrantless search that was ignored by counsel. Plaintiff Taylor alleges that there
existed a valid defense predicated on forensic evidence and witness accounts had counsel
bothered conducting an investigation and inquiry. Plaintiff Davila alleges that counsel failed to
discuss the charges with Davila, lied to the court about it, and failed to challenge a revision of the
charges. Plaintiffs O’Sullivan, Manies, and Secrest allege that counsel had effectively gone
missing in action, despite the fact that they faced serious charges and that hearings and trials
were pending. A common thread that runs through all of the allegations concerning the named
plaintiffs is the failure of counsel to converse with plaintiffs in a meaningful manner. The named
plaintiffs allegedly experienced conduct that included: counsel speaking with plaintiffs, for the
first time, in holding cells for mere minutes prior to scheduled preliminary examinations while in
full hearing range of other inmates; counsel advising plaintiffs to waive preliminary
examinations without meaningful discussions on 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. They further complain of the
following: 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
not preparing for hearings and trials, nor engaging in any communications with plaintiffs
concerning trials. In sum, the allegations by the named plaintiffs include instances of
representation by counsel that fell below an objective standard of reasonableness in regard to
critical stages in the criminal proceedings.19
(ii) Harm and Class Members Generally
Plaintiffs devote an entire section of the complaint to allegations of harm suffered by
class members. Plaintiffs allege that class members "are detained unnecessarily or for prolonged
periods of time before trial." As examples, they cite to contract defenders and indigent counsel
who rarely seek bail reductions, despite circumstances calling for reductions, and who fail to
appear at court proceedings, resulting in frequent postponements and rescheduling. Plaintiffs
refer to one class member who "was forced to sit in the county jail for months because an
attorney he never met missed several consecutive court dates, including three scheduled circuit
19
We recognize that much has transpired in the criminal prosecutions related to the named
plaintiffs since the filing of the instant complaint. In class actions, while there must be a case or
controversy with respect to a named plaintiff at the time the complaint was filed in a case, the
controversy may continue to exist “between a named defendant and a member of the class
represented by the named plaintiff, even though the claim of the named plaintiff has become
moot.” Sosna v Iowa, 419 US 393, 402; 95 S Ct 553; 42 L Ed 2d 532 (1975). The overall case,
however, must still present a case or controversy at the time of court review. Id. In our
discussion regarding class certification, we return to the issue of mootness and explain why the
doctrine compels a conclusion that certification was proper.
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court hearings." These allegations include instances of deficient performance, which also
resulted in the harm of unwarranted, unnecessary, and prolonged delays and detentions.
Plaintiffs next allege that class members are compelled into taking inappropriate pleas,
often to the highest charged crimes, even "when they have meritorious defenses." Plaintiffs
assert that counsel routinely encourage guilty pleas "without a proper factual basis for guilt" and
absent "even a cursory investigation into potentially meritorious defenses." They further
complain of counsel pressuring class members to take "open pleas," which promise no particular
sentence, and which "often result in punishment that is disproportionate to the facts of the case."
Plaintiffs refer to one case in which counsel permitted a client to plead guilty to failure to pay
restitution even though he had already paid restitution. Plaintiffs indicate that class members are
so fearful that counsel will not adequately prepare for trial that they forgo their right to trial and
plead guilty to factually unwarranted offenses. These allegations regarding pleas include
instances of deficient performance that inflicted a detriment to indigent defendants.
Plaintiffs allege that indigent defendants who insist on going to trial are subjected to
punitive charges or lengthy pretrial delays. As an example, plaintiffs refer to an indigent
defendant who sat in the Muskegon County jail for ten months before he finally pled guilty to
various charges. Plaintiffs allege that the indigent defendant's court-appointed counsel "refused
to enforce his right to a speedy trial and instead told the client that if he did not plead, the
prosecutor would drop the charges against him before the speedy trial period ran and re-arraign
him on the same charges." Plaintiffs contend that there had been no evidence connecting the
defendant to the crime and that the defendant "had three alibi witnesses who would have testified
that he was nowhere near the crime scene." Justiciable harm could be found from these
allegations.
Plaintiffs additionally allege that class members face harsher sentences than warranted by
the facts. They refer to a case in which a criminal defendant received a sentence of 12 to 24
months' imprisonment despite the fact that the plea agreement recommended no incarceration.
Plaintiffs note that "[w]hen the sentence was imposed, [the defendant’s] attorney said nothing.
Instead, it was the prosecutor who reminded the court of its obligation to allow the client to
withdraw her plea if the court did not intend to follow the plea agreement." Plaintiffs allege that
"[a]n attorney in Genesee County told a client trying to decide whether to plead guilty to
tampering with a parking meter that if he were convicted at trial, he would face a sentence of 15
years. According to Michigan's sentencing guidelines, however, the sentencing range for the
crime with which the client was charged was 0 to 34 months." Plaintiffs point to a Berrien
County incident where a defendant was sentenced to 37 days in jail for an offense that had a 30day statutory maximum; counsel said nothing, but the court clerk noticed the error. Plaintiffs
also assert that "[c]ounsel . . . often fail to provide meaningful representation at sentencings,”
with “[s]ome attorneys offer[ing] information during sentencing proceedings that is detrimental
to their clients' cases.” Other attorneys, according to plaintiffs, “often fail to catch sentencing
errors and do not read the pre-sentencing reports prior to the sentencing hearings." Plaintiffs
further allege that inadequate representation results in indigent defendants being improperly
assessed fees, which they have no ability to pay, and they assert that failures by counsel to
explore otherwise available alternatives to incarceration result in access being denied to
alternatives such as drug treatment programs. These allegations include instances of deficient
performance detrimental to indigent defendants.
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Plaintiffs next maintain that "[c]ounsel are unable to file necessary motions for pre-trial
suppression, discovery, [and] speedy trial, motions to quash circuit court bind-over, or motions
in limine[, and] [t]hey often fail to challenge illegal identifications, illegal searches and seizures,
or illegally obtained confessions." Plaintiffs complain that "some attorneys refuse to provide
their clients with copies of court files and police records." These allegations include instances of
deficient performance detrimental to indigent defendants.
With respect to trials, plaintiffs allege:
Counsel cannot prepare adequately for court hearings and trial. Many do
not call witnesses to testify on their clients' behalf, do not call experts to challenge
the prosecution, and do not perform meaningful cross-examinations. Others do
not make opening or closing statements at trial. In fact, many do not put on any
meaningful defense case at all.
Plaintiffs do allege that wrongful convictions have occurred, which suggests satisfaction of the
Strickland prejudice requirement typically applicable in criminal appeals.
(iii) Presumed Prejudice and Harm
Plaintiffs allege that the three challenged court-appointed, indigent defense systems
"fail[] to provide counsel to all eligible indigent defendants." Plaintiffs claim that "[s]ome
members . . . must represent themselves because they are wrongfully denied defender services."
In that same vein, plaintiffs allege that “indigent defendants who are constitutionally eligible for
state-appointed counsel are denied counsel.” As an example, plaintiffs contend that “[o]ne
Berrien County judge . . . routinely refuses to appoint counsel to defendants who have made
bail[.]” On this same topic, plaintiffs maintain that "[t]he Muskegon law firm holding the
indigent defense contract advises its lawyers to move to be discharged from representing clients
who have full-time jobs, regardless of how little those jobs pay." And "[o]ne attorney in
Genesee County refuses to represent indigent defendants assigned to him if he considers them to
be financially ineligible. Instead, he offers to represent them as a private attorney, at a discount
from his normal rate." Plaintiffs further contend that, as a result of a failure to abide by national
performance standards, class members are "constructively denied, or threatened with the
constructive denial of counsel." These allegations concern the actual or constructive denial of
counsel, which would ordinarily give rise to a presumption of prejudice in a criminal appeal, and
which would constitute justiciable harm. Strickland, supra at 692; Cronic, supra at 659.
Plaintiffs also allege that “attorneys routinely represent clients in situations in which
conflicts of interest exist.” According to plaintiffs, “[m]any indigent defense counsel also serve
as prosecutors, often in the same courtrooms before the same judges. Some are assigned to
defend individuals they previously prosecuted.” As an example, plaintiffs allege that “a Berrien
County attorney does both felony defense work and abuse and neglect work. He has no system
for screening conflicts despite the possibility of defending a parent under the felony contract who
is also the subject of an abuse and neglect proceeding under the other contract.” Prejudice is
presumed when an attorney is burdened by an actual conflict of interest. Strickland, supra at
692.
(iv) Widespread Harm, Causation, and Redressing of Injury
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We first find that the allegations discussed in the preceding sections reflect widespread
and systemic instances of violations of the constitutional right to counsel and the effective
assistance of counsel.
Plaintiffs allege that an absence of standards, training,20 programs, supervision,
monitoring, guidelines, and independence from the judicial and prosecutorial functions has
resulted in indigent counsel having too many cases,21 insufficient support staff, no or insufficient
resources to hire experts and investigators,22 and a lack of skills and experience to properly
handle assigned cases. Plaintiffs further maintain that these problems have created severe
obstacles in putting cases presented by the prosecution to the crucible of meaningful adversarial
testing. They additionally contend:
As a result of the[] systemic deficiencies, indigent defense counsel do not
meet with clients prior to critical stages in their criminal proceedings;[23]
investigate adequately the charges against their clients or hire investigators who
can assist with case preparation and testify at trial; file necessary pre-trial
motions; prepare properly for court appearances; provide meaningful
representation at sentencings; or employ and consult with experts when necessary.
In addition, the systemic deficiencies provide no method for ensuring that
attorneys are representing clients free from conflicts of interest.
20
According to plaintiffs, "many indigent defense counsel are unable adequately to advise their
clients because they are unaware of key aspects of criminal law and procedure, such as the notice
requirement for the use of an alibi defense or appropriate objections."
21
Plaintiffs claim:
[I]n Berrien County, 6 of the 12 contract holders in 2004 received a
collective total of 4,479 felony and misdemeanor cases, for an average of over
746 cases per attorney. One attorney doing contract work regularly had a
caseload of 1,000 cases a year (700 misdemeanors and 300 felonies) in addition to
200 private cases. One attorney in Muskegon County handled 700 felony cases
per year; another routinely handled 15 felonies per week.
22
Plaintiffs allege that "[i]ndigent defense counsel are unable adequately to investigate the
charges against their clients or to hire investigators who can assist with case preparation and
testify at trial." They note that "[i]n 2004, the trial court administrator in Berrien County did not
receive a single request for an expert or an investigator." (Emphasis added.)
23
Plaintiffs allege:
Most indigent defense counsel do not speak with their clients before they
arrive at the courthouse for the probable cause hearing. Attorneys in the Counties
routinely enter into plea negotiations without clients' permission and before initial
client interviews. One Genesee County attorney has stated that he only meets
with incarcerated clients prior to a preliminary examination if they are charged
with felonies punishable by more than five to ten years of imprisonment.
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We have recited above the numerous harms claimed by plaintiffs and, ultimately,
plaintiffs allege a nexus or causal connection between the widespread and systemic deficiencies
and defendants, asserting:
As a direct result of Defendants' failure to ensure that indigent defense
providers have the tools necessary to provide constitutionally adequate indigent
defense in the three Counties, indigent defense services in the Counties, and
elsewhere in the State, are operated at the lowest cost possible and without regard
to the constitutional adequacy of the services provided. The result is that the
indigent defense provided in each of the three Counties does not meet - and does
not attempt to meet - the ABA's Ten Principles, Michigan's Eleven Principles, or
commensurate safeguards; and does not meet or even attempt to meet the
constitutional minimums required by the United States and Michigan
Constitutions.24
24
We note that the complaint contains numerous additional paragraphs alleging the necessary
causal connection. The dissent, citing Ashcroft v Iqbal, __ US __; 129 S Ct 1937; __ L Ed 2d __
(2009), argues that the causation allegations in plaintiffs’ complaint fail because they constitute
mere legal conclusions and because the allegations implausibly assert causation and are
incapable of being proven or disproven. The dissent contends that it is impossible for plaintiffs
to prove that the alleged inaction and failures by defendants caused the asserted constitutional
violations. To the extent that Ashcroft, a case interpreting the Federal Rules of Civil Procedure
and cases construing those rules, even has application to the case at bar, which is controlled by
the Michigan Rules of Court, it does not support summary dismissal of plaintiffs’ complaint.
With respect to the argument that the allegations of causation are legal conclusions, we first note
that any allegation of causation, whatever the context, carries with it some tinge of a legal
conclusion. Regardless, the extensive complaint sets forth numerous factual allegations that bear
on the issue of causation, including those cited by us above. We initially reiterate the principle so
long ago announced in Gideon that it is the state that ultimately has the affirmative constitutional
obligation to implement a system that safeguards the right to counsel for indigent defendants,
which right, under Strickland and Cronic, includes the right to the effective assistance of
counsel. If a county system is constitutionally inadequate under the standards we have set today,
i.e., a finding of widespread and systemic instances of deprivation of counsel and deficient
performance resulting from a flawed county system of providing indigent representation, yet, at
the same time, the county is in full compliance with existing state law and mandates, the cause of
the constitutional deficiencies will necessarily flow from failures by the State. The complaint
alleges that the State has provided little or no funding, nor fiscal or administrative oversight,
opting to continue a centuries-old practice of delegating to the counties the responsibility for
funding and administering indigent defense services. It is alleged that defendants have done
nothing to ensure that the counties have in place the necessary funding, policies, standards,
qualifications, programs, training, guidelines, and other resources that would enable attorneys to
provide constitutionally adequate representation. The complaint goes into particularized factual
detail on each of these matters, e.g., “Neither the Berrien nor Muskegon County programs have
written job descriptions or qualifications.” It is further alleged that the lack of fiscal oversight,
administrative oversight, funding, policies, standards, programs, qualifications, training,
guidelines, and other resources results in defense providers who have too many cases, lack
sufficient support staff, are unable to obtain investigators and experts, lack the tools necessary to
(continued…)
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This case involves indigent criminal defendants who were, are, and will be subjected to
the court-appointed, indigent defense systems employed by the relevant counties. And there are
extensive allegations concerning detrimental and harmful effects on these criminal defendants, as
they pass through the systems, caused by ineffective attorneys, which, in turn, is allegedly the
result of the State’s and Governor’s failure to protect the constitutional rights of indigent
defendants. Accordingly, there are sufficient allegations of a causal connection between the
injuries and the complained of conduct, and plaintiffs have also indicated that the injuries would
be redressed by a favorable court decision granting the prayed for equitable relief. See Michigan
Citizens, id. at 294-295. We 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. Stated otherwise, the case is presently justiciable, as a case or controversy exists.
Whether plaintiffs can ultimately prove their allegations and establish their case is a matter for
another day.
6. Class Certification
Defendants maintain that the trial court erred in granting plaintiffs’ motion to certify the
class. Defendants contend that plaintiffs failed to show that a class action is the superior manner
by which to litigate the claims. In support of the superiority argument, defendants assert that a
“class action serves no useful purpose because the requested relief may be obtained from an
individual action and would automatically accrue to the benefit of others similarly situated.” As
part of the superiority argument, defendants also argue that a class action suit is inconvenient,
impractical, and unmanageable under the applicable Strickland standard, which requires
examination of individual proofs. In further support of the superiority argument, defendants
argue that the class is unmanageable because the three counties are too factually disparate, that
the class creates practical problems in litigating the claims, that indigent criminal defendants will
(…continued)
do their jobs, are wanting in skills and experience to handle assigned cases, and who essentially
cannot put a prosecutor’s case to the crucible of meaningful adversarial testing. As an example,
plaintiffs allege that, as a result of inadequate training, “many indigent defense counsel are
unable adequately to advise their clients because they are unaware of key aspects of criminal law
and procedure, such as the notice requirement for the use of an alibi defense or appropriate
objections.” Plaintiffs then allege that these systemic problems result in the wrongful denial of
counsel, deficient performance, wrongful convictions, unnecessary or prolonged pre-trial
detentions, inappropriate guilty pleas, and unwarranted harsh sentences. In other words,
defendants have violated plaintiffs’ constitutional rights. Well-pleaded factual allegations
relative to causation have been presented and not solely mere legal conclusions. The paragraphs
in the complaint that are conclusory form the framework of the complaint and are more than
sufficiently supported by factual allegations. See Ashcroft, supra at __ (“While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court should assume their
veracity[.]”). Further, the allegations plausibly suggest unconstitutional conduct and practices by
defendants and entitlement to relief, and while the causation allegations may be difficult to prove
and establish, we cannot conclude that it is impossible to prove causation. We, as an appellate
court, should not engage in trying the case, nor deny plaintiffs the opportunity to present their
proofs.
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suffer no adverse impact if this Court decertifies the class, and that plaintiffs have adequate
remedies at law. Finally, defendants maintain that plaintiffs failed to demonstrate commonality,
where the alleged systemic violations will require individualized proof and the relief would not
be the same for all class members. The trial court, on the basis of the pleadings, ruled contrary to
each one of defendants’ arguments, finding that plaintiffs established commonality, superiority,
and typicality.
In Neal v James, 252 Mich App 12, 15-16; 651 NW2d 181 (2002), this Court articulated
some general principles applicable in determining whether a class should be certified:
Because there is limited case law in Michigan addressing class
certifications, this Court may refer to federal cases construing the federal rules on
class certification. When evaluating a motion for class certification, the trial court
is required to accept the allegations made in support of the request for
certification as true. The merits of the case are not examined. The burden is on
the plaintiff to show that the requirements for class certification exist. [Citations
omitted.]
“The five factors a court must consider when deciding whether to certify a class are
found in MCR 3.501(A)(1), and a plaintiff seeking to certify a class must show that all five
enumerated requirements are satisfied.” Hill, supra at 310, citing A&M Supply Co v Microsoft
Corp, 252 Mich App 580, 597-598; 654 NW2d 572 (2002). MCR 3.501(A)(1) provides:
One or more members of a class may sue or be sued as representative
parties on behalf of all members in a class action only if:
(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class
that predominate over questions affecting only individual members;
(c) the claims or defenses of the representative parties are typical of the
claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect
the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other
available methods of adjudication in promoting the convenient administration of
justice.
a. Number of Class Members and Practicality of Joinder
The first requirement for class certification is that the class must be “so numerous that
joinder of all members is impracticable.” MCR 3.501(A)(1). In the complaint, plaintiffs
indicate:
The Class is defined as all indigent adult persons who have been charged
with or will be charged with felonies in the District and Circuit Courts of Berrien,
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Genesee, and Muskegon Counties and who rely or will rely on the Counties to
provide them with defense services. The Class includes all indigent adults against
whom felony criminal charges will be brought in Berrien, Genesee, and
Muskegon Counties during the pendency of this action.
We agree with plaintiffs that the class, as defined in the complaint, is sufficiently
numerous so as to make joinder of each class member impractical. We also reject the dissent's
argument challenging this ruling under Zine, supra. In Zine, this Court was concerned with
lemon law booklets issued by Chrysler that were distributed to purchasers of new vehicles and
that were allegedly misleading. We find Zine distinguishable because it did not entail the type of
prospective, system-wide relief sought here, it did not involve a fluid class of plaintiffs such as
exists in the case at bar, and because it did not present allegations of widespread and systemic
instances of harm, as we have defined the term "harm" above.
b. Commonality of Legal and Factual Questions
The second requirement for class certification is that there must be “questions of law or
fact common to the members of the class that predominate over questions affecting only
individual members.” MCR 3.501(A)(1)(b). While this action will require contemplation of
specific instances of deficient performance and instances of the actual or constructive denial of
counsel, the ultimate broad factual questions common to all members in the class, given the type
of relief sought, is whether there have been widespread and systemic constitutional violations,
whether the violations were and are being caused by deficiencies in the county indigent defense
systems, and whether the system deficiencies were and are attributable to or resulted from the
action or inaction of defendants. Any evidence concerning individual prosecutions has no
bearing on those particular criminal cases and the available appellate remedies, except to the
extent of any effect on a pending case caused by a system-wide remedy resulting from an order
or judgment rendered in this action. The evidence pertaining to individual prosecutions merely
constitutes a piece in the larger puzzle relative to establishing a basis for prospective, systemwide relief. In the context of this type of civil rights action, unlike the situation in Zine, the
factual question that will be of any relevance to all class members revolves around the
establishment of widespread and systemic instances of deficient performance and denial of
counsel; the case's viability as to all members depends on an aggregation of harm that is
pervasive and persistent.
The dissent's reliance on Neal, supra, is equally misplaced. The case involved claims of
racial discrimination brought by a class of African-Americans who held or had sought
employment with the city of Detroit's law department. The trial court certified the class, and this
Court reversed for failure to satisfy the commonality requirement. The Neal panel reached its
holding because "individual factual circumstances pertinent to each plaintiff will need to be
reviewed, and individual, fact-specific inquiries will need to be made in evaluating why certain
individuals were not hired or promoted, or why other individuals were discharged or not
retained." Id. at 20. Importantly, the Court thereafter stated that the plaintiffs had "simply not
shown that there was any specific policy or practice followed by defendants to satisfy the
'commonality' requirement[.]" Id. Here, plaintiffs' case is built on defendants' and the counties'
policies and practices, it requires proof of widespread and systemic constitutional violations
before any relief is available, and it focuses on system-wide, prospective relief. Neal is simply
inapposite.
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Next, there is also a commonality with respect to the legal questions, which all concern
state and federal constitutional rights to due process and to counsel. We conclude that the
allegations in the complaint satisfy the commonality requirement in regard to both the factual
and legal questions presented.
c. Typicality of Claims
The third requirement for class certification is that there must be “claims . . . of the
representative parties [that] are typical of the claims . . . of the class.” MCR 3.501(A)(1)(c). As
reflected in our earlier review of the allegations in the complaint, the claims of the named
plaintiffs, which pertained mostly to deficient performance of counsel at critical pretrial stages of
the criminal proceedings, are typical of the allegations of the class members. We conclude that
the allegations in the complaint satisfy the typicality requirement.
d. Protection of Interests by Representative Parties
The fourth requirement for class certification is that “the representative parties [must]
fairly and adequately assert and protect the interests of the class.” MCR 3.501(A)(1)(d).
Plaintiffs allege:
[The] Class representatives will fairly and adequately protect the interests
of the Plaintiffs. Plaintiffs’ counsel know of no conflicts of interest between the
class representatives and absent class members with respect to the matters at issue
in this litigation; the class representatives will vigorously prosecute the suit on
behalf of the Class; and the class representatives are represented by experienced
counsel.
Given that “the trial court is required to accept the allegations made in support of the
request for certification as true” when evaluating a class certification motion, Neal, supra at 15,
and considering the quoted allegations, we conclude that MCR 3.501(A)(1)(d) has been satisfied.
e. Superiority
With respect to the fifth factor, whether “the maintenance of the action as a class action
will be superior to other available methods of adjudication in promoting the convenient
administration of justice,” MCR 3.501(A)(1)(e), MCR 3.501(A)(2) provides:
In determining whether the maintenance of the action as a class action will
be superior to other available methods of adjudication in promoting the
convenient administration of justice, the court shall consider among other matters
the following factors:
(a) whether the prosecution of separate actions by or against individual
members of the class would create a risk of
(i) inconsistent or varying adjudications with respect to individual
members of the class that would confront the party opposing the class with
incompatible standards of conduct; or
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(ii) adjudications with respect to individual members of the class that
would as a practical matter be dispositive of the interests of other members not
parties to the adjudications or substantially impair or impede their ability to
protect their interests;
(b) whether final equitable or declaratory relief might be appropriate with
respect to the class;
(c) whether the action will be manageable as a class action;
(d) whether in view of the complexity of the issues or the expense of
litigation the separate claims of individual class members are insufficient in
amount to support separate actions;
(e) whether it is probable that the amount which may be recovered by
individual class members will be large enough in relation to the expense and
effort of administering the action to justify a class action; and
(f) whether members of the class have a significant interest in controlling
the prosecution or defense of separate actions.
In Edgcumbe v Cessna Aircraft Co, 171 Mich App 573, 575; 430 NW2d 788 (1988), this
Court explained that “[t]he requirement of MCR 3.501(A)(1)(e), that the class action be superior
to other methods of adjudication in promoting the convenient administration of justice, is an
outgrowth of the equitable heritage of class actions and a recognition of the practical limitations
on the judiciary's capability to resolve disputes.” The relevant concern in determining the
convenient administration of justice is whether the issues are so disparate as to make a class
action suit unmanageable. Dix v American Bankers Life Assurance Co of Florida, 429 Mich
410, 419; 415 NW2d 206 (1987). “Matters such as diversity of defenses, counterclaims, et
cetera may bear upon the determination of whether a class action suit will promote the
convenient administration of justice.” Lee v Grand Rapids Bd of Ed, 184 Mich App 502, 505;
459 NW2d 1 (1989).
On examination and consideration of the enumerated factors relative to superiority, MCR
3.501(A)(2), we conclude that they weigh in favor of certification of the class. It is vital to keep
in mind the nature of plaintiffs’ complaint in analyzing the class certification issue. Plaintiffs
will need to establish widespread instances of ineffective assistance of counsel and denial of
counsel. Because criminal prosecutions in the three counties are not being stayed due to this
litigation, class members constitute a fluid class and the attendant criminal proceedings will
continually be in flux. Indeed, the prosecutions of the named plaintiffs, to our knowledge, have
been mostly resolved. Promoting the convenient administration of justice necessarily demands
that this case proceed as a class action. In Reynolds v Giuliani, 118 F Supp 2d 352, 391-392 (SD
NY, 2000), the federal district court commented:
[C]lass certification is not a mere formality because it will insure against
the danger of this action becoming moot. This case involves a fluid class where
the claims of the named plaintiffs may become moot prior to completion of this
litigation. The danger of mootness is magnified by the fact that defendants have
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the ability to moot the claims of the named plaintiffs, thereby evading judicial
review of their conduct. Thus, this Court, like other courts under these
circumstances, believes that class certification is necessary. See Greklek v. Toia,
565 F.2d 1259, 1261 (2d Cir. 1977) (affirming district court's grant of class
certification in action requesting declaratory and injunctive relief “since only class
certification could avert the substantial possibility of the litigation becoming moot
prior to the decision”); Alston v. Coughlin, 109 F.R.D. 609, 612 (S.D. N.Y. 1986)
(“[t]he plaintiff's interest in averting the possibility of the action becoming moot,
with the concomitant interest in judicial economy, makes class certification in this
case more than an empty formality”); Jane B., 117 F.R.D. at 72 (“[a]n additional
reason for granting the motion for certification lies in avoiding problems of
mootness”); Ashe, 124 F.R.D. at 51 (“[a] further ground for finding class
certification to be more than a ‘formality’ here is to avoid the danger of the
individual plaintiffs' claims becoming moot before a final adjudication”); Koster
v. Perales, 108 F.R.D. 46, 54 (E.D. N.Y. 1985) (class certification is necessary
when “absent certification, there is a substantial danger of mootness”).
Accordingly, plaintiffs' motion for class certification is granted.
We have the same mootness dangers if this case is not pursued through the vehicle of a
class action lawsuit. This fact alone defeats most of defendants’ arguments on the issue of class
certification, e.g., the argument that a class action serves no useful purpose. Absent class
certification, and even assuming that no mootness issue exists, the prosecution of separate
actions would create a risk of inconsistent or varying adjudications. MCR 3.501(A)(2)(a).
Furthermore, equitable and declaratory relief would not only be appropriate for the class on
establishing its case, it is the only relief being sought. MCR 3.501(A)(2)(b). Additionally, we
find that the action would be manageable as a class action, that any claims by individual class
members would be insufficient to support separate actions in view of the complexity of the
issues or the expense in litigation, that recoverable dollar amounts are not at issue, and that
individual class members do not have a significant interest in controlling separate actions. MCR
3.501(A)(2)(c)-(f). Defendants’ arguments to the contrary, including those hinging on the now
rejected two-part Strickland test, are unavailing.
IV. Summary
We respectfully disagree with our dissenting colleague's criticisms of this opinion and, to
the extent not already addressed above, feel compelled to respond. This case certainly presents
difficult issues, requiring us, in part, to tread in unchartered legal waters. There are, however,
some fundamental principles at play here.
It is well-accepted that part of the judiciary's role and function in our tripartite system of
government is to interpret constitutional provisions, apply constitutional requirements to the facts
at hand, and to safeguard and protect constitutional rights, all through entry of orders and
judgments as guided by stare decisis. That the judiciary can declare executive and legislative
conduct unconstitutional, can prohibit continuing unconstitutional conduct by the two other
branches of government, and can demand constitutional compliance, hardly seem to be foreign
principles in the jurisprudence of this State and Country. For support, we need not look any
further than the historic landmark case of Marbury, supra at 177-180, in which Chief Justice
John Marshall so eloquently stated:
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The constitution is either a superior, paramount law, unchangeable by
ordinary means, or it is on a level with ordinary legislative acts, and like other
acts, is alterable when the legislature shall please to alter it. If the former part of
the alternative be true, then a legislative act contrary to the constitution is not law:
if the latter part be true, then written constitutions are absurd attempts, on the part
of the people, to limit a power, in its own nature illimitable. Certainly all those
who have framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of
every such government must be, that an act of the legislature, repugnant to the
constitution, is void. This theory is essentially attached to a written constitution,
and is consequently to be considered, by this court, as one of the fundamental
principles of our society. It is not therefore to be lost sight of in the further
consideration of this subject.
If an act of the legislature, repugnant to the constitution, is void, does it,
notwithstanding its invalidity, bind the courts, and oblige them to give it effect?
Or, in other words, though it be not law, does it constitute a rule as operative as if
it was a law? This would be to overthrow in fact what was established in theory;
and would seem, at first view, an absurdity too gross to be insisted on. It shall,
however, receive a more attentive consideration. It is emphatically the province
and duty of the judicial department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and interpret that rule. If two
laws conflict with each other, the courts must decide on the operation of each.
So if a law be in opposition to the constitution; if both the law and the
constitution apply to a particular case, so that the court must either decide that
case conformably to the law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty. If
then the courts are to regard the constitution; and the constitution is superior to
any ordinary act of the legislature; the constitution, and not such ordinary act,
must govern the case to which they both apply. Those then who controvert the
principle that the constitution is to be considered, in court, as a paramount law,
are reduced to the necessity of maintaining that courts must close their eyes on the
constitution, and see only the law. This doctrine would subvert the very
foundation of all written constitutions. It would declare that an act, which,
according to the principles and theory of our government, is entirely void; is yet,
in practice, completely obligatory. It would declare, that if the legislature shall do
what is expressly forbidden, such act, notwithstanding the express prohibition, is
in reality effectual. It would be giving to the legislature a practical and real
omnipotence, with the same breath which professes to restrict their powers within
narrow limits. It is prescribing limits, and declaring that those limits may be
passed as pleasure.
That it thus reduces to nothing what we have deemed the greatest
improvement on political institutions-a written constitution-would of itself be
sufficient, in America, where written constitutions have been viewed with so
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much reverence, for rejecting the construction. But the peculiar expressions of the
constitution of the United States furnish additional arguments in favour of its
rejection. The judicial power of the United States is extended to all cases arising
under the constitution. Could it be the intention of those who gave this power, to
say that, in using it, the constitution should not be looked into? That a case arising
under the constitution should be decided without examining the instrument under
which it arises? This is too extravagant to be maintained. In some cases then, the
constitution must be looked into by the judges. And if they can open it at all, what
part of it are they forbidden to read, or to obey? There are many other parts of the
constitution which serve to illustrate this subject.
***
[I]t is apparent that the framers of the constitution contemplated that
instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath
certainly applies, in an especial manner, to their conduct in their official character.
How immoral to impose it on them, if they were to be used as the instruments,
and the knowing instruments, for violating what they swear to support? The oath
of office, too, imposed by the legislature, is completely demonstrative of the
legislative opinion on this subject. It is in these words, “I do solemnly swear that I
will administer justice without respect to persons, and do equal right to the poor
and to the rich; and that I will faithfully and impartially discharge all the duties
incumbent on me as according to the best of my abilities and understanding,
agreeably to the constitution, and laws of the United States.” Why does a judge
swear to discharge his duties agreeably to the constitution of the United States, if
that constitution forms no rule for his government? if it is closed upon him, and
cannot be inspected by him? If such be the real state of things, this is worse than
solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
[Paragraphs reconfigured.]
Moving forward 200 plus years, the United States Supreme Court in Boumediene, supra,
128 S Ct 2229, reiterated the principles from Marbury. The Court stated that abstaining from
questions requiring political judgments reflects recognition that such matters are best left to the
political branches and not the judiciary. Boumediene, supra at 2259. However, "[t]o hold [that]
the political branches have the power to switch the Constitution on or off at will is quite another
[matter]." Id. This would unacceptably "permit a striking anomaly in our tripartite system of
government, leading to a regime in which Congress and the President, not this Court, say 'what
the law is.'" Id., citing Marbury, supra at 177.
Political judgments are involved in determining the manner and method by which a state
proceeds in providing representation for indigent criminal defendants, including, as in Michigan,
delegation of representation matters to local counties and chief judges. But if the state has
allegedly failed to satisfy its constitutional obligations with its chosen approach, i.e., switching
off state and federal constitutions, it is up to the judiciary to judge whether or not the state has
indeed acted consistent with constitutional requirements. From Marbury to Boumediene, this
field has been defined as including the interpretation of constitutional language, the application
of constitutional principles, the judging of constitutional compliance, and the safeguarding of
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constitutional rights. This is all that is occurring in this case. Without allowing for court
examination and possible intervention, the Governor and the Legislature effectively determine
"what the law is" with respect to the right to counsel and the right to the effective assistance of
counsel.
We are not setting public policy. Rather, we are simply indicating that the judiciary can
evaluate the constitutional compliance of policies implemented by the two political branches of
government. We are not suggesting that the judiciary can dictate to the other branches of
government the type of system to employ in providing representation for indigent defendants.
The judiciary, however, can and must have a say with respect to whether a chosen system is
constitutionally sound. The judiciary clearly cannot require the political branches to utilize a
"better" system than a system currently in place, where the existing system sufficiently
safeguards constitutional rights. See Grand Traverse Co, supra at 472 (it is for the Legislature to
decide whether to implement a more desirable system).
Concerns have been expressed with expenses that may be incurred by state taxpayers and
the state to operate an indigent defense system. Assuming this was to occur, we first note that
the taxpayers of this state are already bearing the burden of paying for the representation of
indigent defendants; it is just being accomplished through different taxing authorities.
Importantly, economic concerns did not dissuade the Supreme Court in Gideon from construing
the United States Constitution in a manner that mandates effective assistance of counsel for
indigent defendants. Further, during these economically challenging times, the judiciary, in
addressing constitutional issues, must be reminded of the words of Chief Justice Warren Berger
in Bowsher v Synar, 478 US 714, 736; 106 S Ct 3181; 92 L Ed 2nd 583 (1986):
No one can doubt that Congress and the President are confronted with
fiscal and economic problems of unprecedented magnitude, but “the fact that a
given law or procedure is efficient, convenient, and useful in facilitating functions
of government, standing alone, will not save it if it is contrary to the
Constitution. Convenience and efficiency are not the primary objectives-or the
hallmarks-of democratic government. . . .” [Citation omitted.]
As to expressed concerns with the possible prospect that the state will have to operate an
indigent defense system at the trial level, we care not whether it is the state, administrative
agencies, counties, municipalities, courts, or any other bodies, alone or in combination, that
operate a system providing representation for indigent criminal defendants. Our only concern is
that whatever system is in place, regardless of what entity operates the system, it safeguards the
constitutional rights to counsel and the effective assistance of counsel. Plaintiffs have filed a
complaint containing sufficient allegations that those constitutional rights are not currently being
protected in the three counties at issue under the systems employed by those counties, which can
ultimately be blamed on defendants’ constitutional failures. Plaintiffs are thus entitled to have
their day in court.
V. Conclusion
We hold that defendants are not shielded by governmental immunity, that defendants are
proper parties, that 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
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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.
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
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