Bill Text: MI HB5985 | 2017-2018 | 99th Legislature | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Criminal procedure; indigent defense; Michigan indigent defense commission; modify. Amends secs. 3, 5, 7, 9, 11, 13, 15 & 17 of 2013 PA 93 (MCL 780.983 et seq.) & adds sec 22.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2018-08-15 - Assigned Pa 214'18 With Immediate Effect [HB5985 Detail]

Download: Michigan-2017-HB5985-Introduced.html

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HOUSE BILL No. 5985

 

 

May 15, 2018, Introduced by Rep. VerHeulen and referred to the Committee on Appropriations.

 

     A bill to amend 2013 PA 93, entitled

 

"Michigan indigent defense commission act,"

 

by amending sections 3, 5, 7, 11, 13, and 15 (MCL 780.983, 780.985,

 

780.987, 780.991, 780.993, and 780.995), sections 3, 5, and 11 as

 

amended by 2016 PA 439, section 13 as amended by 2016 PA 441, and

 

section 15 as amended by 2016 PA 442.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 3. As used in this act:

 

     (a) "Adult" means either of the following:

 

     (i) An individual 17 years of age or older.

 

     (ii) An individual less than 17 years of age at the time of

 

the commission of a felony if any of the following conditions

 

apply:

 

     (A) During consideration of a petition filed under section 4

 

of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

 

712A.4, to waive jurisdiction to try the individual as an adult and

 

upon granting a waiver of jurisdiction.

 

     (B) The prosecuting attorney designates the case under section

 

2d(1) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

 

712A.2d, as a case in which the juvenile is to be tried in the same

 

manner as an adult.

 

     (C) During consideration of a request by the prosecuting

 

attorney under section 2d(2) of chapter XIIA of the probate code of

 

1939, 1939 PA 288, MCL 712A.2d, that the court designate the case

 

as a case in which the juvenile is to be tried in the same manner

 

as an adult.

 

     (D) The prosecuting attorney authorizes the filing of a

 

complaint and warrant for a specified juvenile violation under

 

section 1f of chapter IV of the code of criminal procedure, 1927 PA

 

175, MCL 764.1f.

 

     (b) "Department" means the department of licensing and

 

regulatory affairs.

 

     (c) "Detroit Consumer Price Index" means the most

 

comprehensive index of consumer prices available for the Detroit

 

area from the Bureau of Labor Statistics of the United States

 

Department of Labor, or its successor department.

 

     (d) (c) "Effective assistance of counsel" or "effective

 

representation" means legal representation that is compliant with

 

standards established by the appellate courts of this state and the

 

United States supreme court.Supreme Court.

 

     (e) (d) "Indigent" means meeting 1 or more of the conditions

described in section 11(3).

 

     (f) (e) "Indigent criminal defense services" means local legal

 

defense services provided to a defendant and to which both of the

 

following conditions apply:

 

     (i) The defendant is being prosecuted or sentenced for a crime

 

for which an individual may be imprisoned upon conviction,

 

beginning with the defendant's initial appearance in court to

 

answer to the criminal charge.

 

     (ii) The defendant is determined to be indigent under section

 

11(3).

 

     (g) (f) Indigent criminal defense services do not include

 

services authorized to be provided under the appellate defender

 

act, 1978 PA 620, MCL 780.711 to 780.719.

 

     (h) (g) "Indigent criminal defense system" or "system" means

 

either of the following:

 

     (i) The local unit of government that funds a trial court.

 

     (ii) If a trial court is funded by more than 1 local unit of

 

government, those local units of government, collectively.

 

     (i) (h) "Local share" or "share" means an indigent criminal

 

defense system's average annual expenditure for indigent criminal

 

defense services in the 3 fiscal years immediately preceding the

 

creation of the MIDC under this act, excluding money reimbursed to

 

the system by individuals determined to be partially indigent. The

 

local share must be adjusted annually by the Detroit Consumer Price

 

Index or 3%, whichever is less.

 

     (j) (i) "MIDC" or "commission" means the Michigan indigent

 

defense commission created under section 5.

     (k) "Partially indigent" means a criminal defendant who is

 

unable to afford the complete cost of legal representation, but is

 

able to contribute a monetary amount toward his or her

 

representation.

 

     Sec. 5. (1) The Michigan indigent defense commission is

 

established within the department.

 

     (2) The MIDC shall retain as an autonomous entity all

 

statutory authority, powers, duties, functions, records, personnel,

 

property, unexpended balances of appropriations, allocations, and

 

other functions, including the functions of budgeting, personnel,

 

locating offices, and other management functions. Any portion of

 

funds appropriated to the MIDC that is not expended in a state

 

fiscal year shall not lapse to the general fund but shall be

 

carried forward in a work project account that is in compliance

 

with section 451a of the management and budget act, 1984 PA 431,

 

MCL 18.1451a, for use in the following state fiscal year.

 

     (2) Subject to appropriation, if requested by the MIDC, the

 

department shall provide staff and other support to the MIDC

 

sufficient to carry out its duties, powers, and responsibilities.

 

     (3) The MIDC shall propose minimum standards for the local

 

delivery of indigent criminal defense services providing effective

 

assistance of counsel to adults throughout this state. These

 

minimum standards shall must be designed to ensure the provision of

 

indigent criminal defense services that meet constitutional

 

requirements for effective assistance of counsel. However, these

 

minimum standards shall must not infringe on the supreme court's

 

authority over practice and procedure in the courts of this state

as set forth in section 5 of article VI of the state constitution

 

of 1963.

 

     (4) The commission shall convene a public hearing before a

 

proposed standard is recommended to the department. A minimum

 

standard proposed under this subsection shall must be submitted to

 

the department for approval or rejection. Opposition to a proposed

 

minimum standard may be submitted to the department in a manner

 

prescribed by the department. An indigent criminal defense system

 

that objects to a recommended minimum standard on the ground that

 

the recommended minimum standard would exceed the MIDC's statutory

 

authority shall state specifically how the recommended minimum

 

standard would exceed the MIDC's statutory authority. A proposed

 

minimum standard is final when it is approved by the department. A

 

minimum standard that is approved by the department is not subject

 

to challenge through the appellate procedures in section 15. An

 

approved minimum standard for the local delivery of indigent

 

criminal defense services within an indigent criminal defense

 

system is not a rule as that term is defined in section 7 of the

 

administrative procedures act of 1969, 1969 PA 306, MCL 24.207.

 

     (5) Approval of a minimum standard proposed by the MIDC is

 

considered a final department action subject to judicial review

 

under section 28 of article VI of the state constitution of 1963 to

 

determine whether the approved minimum standard is authorized by

 

law. Jurisdiction and venue for judicial review are vested in the

 

court of claims. An indigent criminal defense system may file a

 

petition for review in the court of claims within 60 days after the

 

date of mailing notice of the department's final decision on the

recommended minimum standard. The filing of a petition for review

 

does not stay enforcement of an approved minimum standard, but the

 

department may grant, or the court of claims may order, a stay upon

 

appropriate terms.

 

     (6) The MIDC shall identify and encourage best practices for

 

delivering the effective assistance of counsel to indigent

 

defendants charged with crimes.

 

     (7) The MIDC shall identify and implement a system of

 

performance metrics to assess the provision of indigent defense

 

services in this state relative to national standards and

 

benchmarks. The MIDC shall provide an annual report to the

 

governor, legislature, supreme court, and the state budget director

 

on the performance metrics not later than September 30 of each

 

year.

 

     Sec. 7. (1) The MIDC includes 15 18 voting members and the ex

 

officio member described in subsection (2). The 15 18 voting

 

members shall be appointed by the governor for terms of 4 years,

 

except as provided in subsection (4). Subject to subsection (3),

 

the governor shall appoint members under this subsection as

 

follows:

 

     (a) Two members submitted by the speaker of the house of

 

representatives.

 

     (b) Two members submitted by the senate majority leader.

 

     (c) One member from a list of 3 names submitted by the supreme

 

court chief justice.

 

     (d) Three members from a list of 9 names submitted by the

 

criminal defense attorney association Criminal Defense Attorneys of

Michigan.

 

     (e) One member from a list of 3 names submitted by the

 

Michigan judges association.Judges Association.

 

     (f) One member from a list of 3 names submitted by the

 

Michigan district judges association.District Judges Association.

 

     (g) One member from a list of 3 names submitted by the state

 

bar State Bar of Michigan.

 

     (h) One member from a list of names submitted by bar

 

associations whose primary mission or purpose is to advocate for

 

minority interests. Each bar association described in this

 

subdivision may submit 1 name.

 

     (i) One member from a list of 3 names submitted by the

 

prosecuting attorney's association Prosecuting Attorneys

 

Association of Michigan who is a former county prosecuting attorney

 

or former assistant county prosecuting attorney.

 

     (j) One member selected to represent the general public.

 

     (k) One member selected to represent local units of

 

government.

 

     (k) Two members representing the funding unit of a circuit

 

court from a list of 6 names submitted by the Michigan Association

 

of Counties.

 

     (l) One member representing the funding unit of a district

 

court of the third class from a list of 3 names submitted by the

 

Michigan Municipal League.

 

     (m) One member from a list of 3 names submitted by the state

 

budget office.

 

     (2) The supreme court chief justice or his or her designee

shall serve as an ex officio member of the MIDC without vote.

 

     (3) Individuals nominated for service on the MIDC as provided

 

in subsection (1) shall must have significant experience in the

 

defense or prosecution of criminal proceedings or have demonstrated

 

a strong commitment to providing effective representation in

 

indigent criminal defense services. Of the members appointed under

 

this section, the governor shall appoint no fewer than 2

 

individuals who are not licensed attorneys. Any individual who

 

receives compensation from this state or an indigent criminal

 

defense system for providing prosecution of or representation to

 

indigent adults in state courts is ineligible to serve as a member

 

of the MIDC. Not more than 3 judges, whether they are former judges

 

or sitting judges, shall serve on the MIDC at the same time. The

 

governor may reject the names submitted under subsection (1) and

 

request additional names.

 

     (4) MIDC members shall hold office until their successors are

 

appointed. The terms of the members shall must be staggered.

 

Initially, 4 members shall must be appointed for a term of 4 years

 

each, 4 members shall must be appointed for a term of 3 years each,

 

4 members shall must be appointed for a term of 2 years each, and 3

 

members shall must be appointed for a term of 1 year each.

 

     (5) The governor shall fill a vacancy occurring in the

 

membership of the MIDC in the same manner as the original

 

appointment, except if the vacancy is for an appointment described

 

in subsection (1)(d), the source of the nomination shall submit a

 

list of 3 names for each vacancy. However, if the senate majority

 

leader or the speaker of the house of representatives is the source

of the nomination, 1 name shall must be submitted. If an MIDC

 

member vacates his or her the commission before the end of the

 

member's term, the governor shall fill that vacancy for the

 

unexpired term only.

 

     (6) The governor shall appoint 1 of the original MIDC members

 

to serve as chairperson of the MIDC for a term of 1 year. At the

 

expiration of that year, or upon the vacancy in the membership of

 

the member appointed chairperson, the MIDC shall annually elect a

 

chairperson from its membership to serve a 1-year term. An MIDC

 

member shall not serve as chairperson of the MIDC for more than 3

 

consecutive terms.

 

     (7) MIDC members shall not receive compensation in that

 

capacity but shall must be reimbursed for their reasonable actual

 

and necessary expenses by the state treasurer.

 

     (8) The governor may remove an MIDC member for incompetence,

 

dereliction of duty, malfeasance, misfeasance, or nonfeasance in

 

office, or for any other good cause.

 

     (9) A majority of the MIDC voting members constitute a quorum

 

for the transaction of business at a meeting of the MIDC. A

 

majority of the MIDC voting members are required for official

 

action of the commission.

 

     (10) Confidential case information, including, but not limited

 

to, client information and attorney work product, is exempt from

 

disclosure under the freedom of information act, 1976 PA 442, MCL

 

15.231 to 15.246.

 

     Sec. 11. (1) The MIDC shall establish minimum standards,

 

rules, and procedures to effectuate the following:

     (a) The delivery of indigent criminal defense services shall

 

be independent of the judiciary but ensure that the judges of this

 

state are permitted and encouraged to contribute information and

 

advice concerning that delivery of indigent criminal defense

 

services.

 

     (b) If the caseload is sufficiently high, indigent criminal

 

defense services may consist of both an indigent criminal defender

 

office and the active participation of other members of the state

 

bar.

 

     (c) Trial courts shall assure that each criminal defendant is

 

advised of his or her right to counsel. All adults, except those

 

appearing with retained counsel or those who have made an informed

 

waiver of counsel, shall must be screened for eligibility under

 

this act, and counsel shall must be assigned as soon as an indigent

 

adult is determined to be eligible for indigent criminal defense

 

services.

 

     (2) The MIDC shall implement minimum standards, rules, and

 

procedures to guarantee the right of indigent defendants to the

 

assistance of counsel as provided under amendment VI of the

 

Constitution of the United States and section 20 of article I of

 

the state constitution of 1963. In establishing minimum standards,

 

rules, and procedures, the MIDC shall adhere to the following

 

principles:

 

     (a) Defense counsel is provided sufficient time and a space

 

where attorney-client confidentiality is safeguarded for meetings

 

with defense counsel's client.

 

     (b) Defense counsel's workload is controlled to permit

effective representation. Economic disincentives or incentives that

 

impair defense counsel's ability to provide effective

 

representation shall must be avoided. The MIDC may develop workload

 

controls to enhance defense counsel's ability to provide effective

 

representation.

 

     (c) Defense counsel's ability, training, and experience match

 

the nature and complexity of the case to which he or she is

 

appointed.

 

     (d) The same defense counsel continuously represents and

 

personally appears at every court appearance throughout the

 

pendency of the case. However, indigent criminal defense systems

 

may exempt ministerial, nonsubstantive tasks, and hearings from

 

this prescription.

 

     (e) Indigent criminal defense systems employ only defense

 

counsel who have attended continuing legal education relevant to

 

counsels' indigent defense clients.

 

     (f) Indigent criminal defense systems systematically review

 

defense counsel at the local level for efficiency and for effective

 

representation according to MIDC standards.

 

     (3) The following requirements apply to the application for,

 

and appointment of, indigent criminal defense services under this

 

act:

 

     (a) A preliminary inquiry regarding, and the determination of,

 

the indigency of any defendant, including a determination regarding

 

whether a defendant is partially indigent, for purposes of this act

 

shall must be made as determined by the indigent criminal defense

 

system not later than at the defendant's first appearance in court.

The determination may be reviewed by the indigent criminal defense

 

system at any other stage of the proceedings. In determining

 

whether a defendant is entitled to the appointment of counsel, the

 

indigent criminal defense system shall consider whether the

 

defendant is indigent and the extent of his or her ability to pay.

 

Factors to be considered include, but are not limited to, income or

 

funds from employment or any other source, including personal

 

public assistance, to which the defendant is entitled, property

 

owned by the defendant or in which he or she has an economic

 

interest, outstanding obligations, the number and ages of the

 

defendant's dependents, employment and job training history, and

 

his or her level of education. A trial court may play a role in

 

this determination as part of any indigent criminal defense

 

system's compliance plan under the direction and supervision of the

 

supreme court, consistent with section 4 of article VI of the state

 

constitution of 1963. If a court determines that a defendant is

 

partially indigent, the court shall determine the amount of money

 

the defendant must contribute to his or her defense. Nothing in

 

this act shall prevent prevents a court from making a determination

 

of indigency for any purpose consistent with article VI of the

 

state constitution of 1963.

 

     (b) A defendant is considered to be indigent if he or she is

 

unable, without substantial financial hardship to himself or

 

herself or to his or her dependents, to obtain competent, qualified

 

legal representation on his or her own. Substantial financial

 

hardship shall be is rebuttably presumed if the defendant receives

 

personal public assistance, including under the food assistance

program, temporary assistance for needy families, medicaid, or

 

disability insurance, resides in public housing, or earns an income

 

less than 140% of the federal poverty guideline. A defendant is

 

also rebuttably presumed to have a substantial financial hardship

 

if he or she is currently serving a sentence in a correctional

 

institution or is receiving residential treatment in a mental

 

health or substance abuse facility.

 

     (c) A defendant not falling below the presumptive thresholds

 

described in subdivision (b) shall must be subjected to a more

 

rigorous screening process to determine if his or her particular

 

circumstances, including the seriousness of the charges being

 

faced, his or her monthly expenses, and local private counsel rates

 

would result in a substantial hardship if he or she were required

 

to retain private counsel.

 

     (d) A defendant shall be is responsible for applying for

 

indigent defense counsel and for establishing his or her indigency

 

and eligibility for appointed counsel under this act. Any oral or

 

written statements made by the defendant in or for use in the

 

criminal proceeding and material to the issue of his or her

 

indigency shall must be made under oath or an equivalent

 

affirmation.

 

     (4) The MIDC shall establish standards for trainers and

 

organizations conducting training that receive MIDC funds for

 

training and education. The standards established under this

 

subsection must require that the MIDC analyze the quality of the

 

training, and must require that the effectiveness of the training

 

be capable of being measured and validated.

     (5) An indigent criminal defense system may include in its

 

compliance plan a request that the MIDC serve as a clearinghouse

 

for experts and investigators. If an indigent criminal defense

 

system makes a request under this subsection, the MIDC may develop

 

and operate a system for determining the need and availability for

 

an expert or investigator in individual cases.

 

     Sec. 13. (1) All indigent criminal defense systems and, at the

 

direction of the supreme court, attorneys engaged in providing

 

indigent criminal defense services shall cooperate and participate

 

with the MIDC in the investigation, audit, and review of their

 

indigent criminal defense services.

 

     (2) An indigent criminal defense system may submit to the MIDC

 

an estimate of the cost of developing the plan and cost analysis

 

for implementing the plan under subsection (3) to the MIDC for

 

approval. Upon approval, If approved, the MIDC shall award the

 

indigent criminal defense system a grant to pay the approved costs

 

for developing the plan and cost analysis under subsection (3).

 

     (3) No later than 180 days after a standard is approved by the

 

department, each indigent criminal defense system shall submit a

 

plan to the MIDC for the provision of indigent criminal defense

 

services in a manner as determined by the MIDC and shall submit an

 

annual plan for the following state fiscal year on or before

 

February October 1 of each year. A plan submitted under this

 

subsection shall must specifically address how the minimum

 

standards established by the MIDC under this act shall will be met

 

and shall must include a cost analysis for meeting those minimum

 

standards. The standards to be addressed in the annual plan are

those approved not less than 60 days before the annual plan

 

submission date. This The cost analysis shall must include a

 

statement of the funds in excess of the local share, if any,

 

necessary to allow its system to comply with the MIDC's minimum

 

standards.

 

     (4) The MIDC shall approve or disapprove all or any portion of

 

a plan or cost analysis, or both a plan and cost analysis,

 

submitted under subsection (3), and shall do so within 60 90

 

calendar days of the submission of the plan and cost analysis. If

 

the MIDC disapproves any part of the plan, the cost analysis, or

 

both the plan and the cost analysis, the indigent criminal defense

 

system shall consult with the MIDC and, for any disapproved

 

portion, submit a new plan, a new cost analysis, or both within 30

 

60 calendar days of the mailing date of the official notification

 

of the MIDC's disapproval. If after 3 submissions a compromise is

 

not reached, the dispute shall must be resolved as provided in

 

section 15. All approved provisions of an indigent criminal defense

 

system's plan and cost analysis must not be delayed by any

 

disapproved portion and must proceed as provided in this act. The

 

MIDC shall not approve a cost analysis or portion of a cost

 

analysis unless it is reasonably and directly related to an

 

indigent defense function.

 

     (5) The MIDC shall submit a report to the governor, the senate

 

majority leader, the speaker of the house of representatives, and

 

the appropriations committees of the senate and house of

 

representatives requesting the appropriation of funds necessary to

 

implement the plan for each system approved by the MIDC. compliance

plans after all the systems compliance plans are approved by the

 

MIDC. For standards approved after January 1, 2018, the MIDC shall

 

include a cost analysis for each minimum standard in the report and

 

shall also provide a cost analysis for each minimum standard

 

approved on or before January 1, 2018, if a cost analysis for each

 

minimum standard approved was not provided and shall do so not

 

later than October 31, 2018. The amount requested under this

 

subsection must be equal to the total amount required to achieve

 

full compliance as agreed upon by the MIDC and the indigent

 

criminal defense systems under the approval process provided in

 

subsection (4). The information used to create this report shall

 

must be made available to the governor, the senate majority leader,

 

the speaker of the house of representatives, and the appropriations

 

committees of the senate and house of representatives.

 

     (6) The MIDC shall submit a report to the governor, the senate

 

majority leader, the speaker of the house of representatives, and

 

the appropriations committees of the senate and house of

 

representatives not later than October 31, 2018 that includes a

 

recommendation regarding the appropriate level of local

 

contribution, expressed in both total dollars and as a percentage

 

of the total cost of compliance for each indigent criminal defense

 

system.

 

     (7) (6) Except as provided in subsection (8), (9), an indigent

 

criminal defense system shall maintain not less than its local

 

share. If the MIDC determines that funding in excess of the

 

indigent criminal defense system's share is necessary in order to

 

bring its system into compliance with the minimum standards

established by the MIDC, that excess funding shall must be paid by

 

this state. The legislature shall appropriate to the MIDC the

 

additional funds necessary for a system to meet and maintain those

 

minimum standards, which funds shall must be provided to indigent

 

criminal defense systems through grants as described in subsection

 

(7).(8). The legislature may fund 1 or more minimum standards as

 

contained in the report under subsection (5). If the legislature

 

appropriates funds that apply to less than all of the minimum

 

standards and does not provide the full amount of funds requested

 

under subsection (5), the legislature must identify which minimum

 

standard or standards must be funded by the appropriation.

 

Notwithstanding this subsection, it is the intent of the

 

legislature to fund all of the minimum standards contained in the

 

report under subsection (5) within 3 years of the date on which the

 

minimum standards were adopted.

 

     (8) (7) An indigent criminal defense system shall must not be

 

required to provide funds in excess of its local share. The MIDC

 

shall provide grants to indigent criminal defense systems to assist

 

in bringing the systems into compliance with minimum standards

 

established by the MIDC.

 

     (9) (8) An indigent criminal defense system is not required to

 

expend its local share if the minimum standards established by the

 

MIDC may be met for less than that share, but the local share of a

 

system that expends less than its local share under these

 

circumstances is not reduced by the lower expenditure.

 

     (10) (9) This state shall appropriate funds to the MIDC for

 

grants to the local units of government for the reasonable costs

associated with data required to be collected under this act that

 

is over and above the local unit of government's data costs for

 

other purposes.

 

     (11) (10) Within 180 days after receiving funds from the MIDC

 

under subsection (7), (8), an indigent criminal defense system

 

shall comply with the terms of the grant in bringing its system

 

into compliance with the minimum standards established by the MIDC

 

for effective assistance of counsel. The terms of a grant may allow

 

an indigent criminal defense system to exceed 180 days for

 

compliance with a specific item needed to meet minimum standards if

 

necessity is demonstrated in the indigent criminal defense system's

 

compliance plan. The MIDC has the authority to allow an indigent

 

criminal defense system to exceed 180 days for implementation of

 

items if an unforeseeable condition prohibits timely compliance.

 

     (12) (11) If an indigent criminal defense system is awarded no

 

funds for implementation of its plan under this act, the MIDC shall

 

nevertheless issue to the system a zero grant reflecting that it

 

will receive no grant funds.

 

     (13) (12) The MIDC may apply for and obtain grants from any

 

source to carry out the purposes of this act. All funds received by

 

MIDC, from any source, are state funds and shall must be

 

appropriated as provided by law.

 

     (14) The MIDC shall ensure proper financial protocols in

 

administering and overseeing grants to indigent criminal defense

 

systems, including, but not limited to, all of the following:

 

     (a) Requiring documentation of expenditures.

 

     (b) Requiring each indigent criminal defense system to hold

all grant funds in a fund that is separate from other funds held by

 

the indigent criminal defense system.

 

     (c) Requiring each indigent criminal defense system to comply

 

with the standards promulgated by the governmental accounting

 

standards board.

 

     (15) If an indigent criminal defense system does not fully

 

expend a grant toward its costs of compliance, its grant in the

 

second succeeding fiscal year must be reduced by the amount equal

 

to the unexpended funds. Identified unexpended grant funds must be

 

reported by indigent criminal defense systems on or before October

 

31 of each year. Funds subject to extension under subsection (11)

 

must be reported but not included in the reductions described in

 

this subsection. Any grant money that is determined to have been

 

used for a purpose outside of the compliance plan must be repaid to

 

the MIDC, or if not repaid, must be deducted from future grant

 

amounts. The director of the department has veto power over

 

individual compliance plans in the event that the indigent criminal

 

defense system fails to comply with subsection (3).

 

     (16) If an indigent criminal defense system expends funds in

 

excess of its local share and the approved MIDC grant to meet

 

unexpected needs in the provision of indigent criminal defense

 

services, the MIDC shall recommend the inclusion of the funds in a

 

subsequent year's grant if all expenditures were reasonably and

 

directly related to indigent criminal defense functions.

 

     (17) An indigent criminal defense system shall assess and

 

collect contribution or reimbursement from individuals determined

 

to be partially indigent under applicable court rules and statutes.

A court may assist its local indigent criminal defense system in an

 

assessment and collection at the direction of the supreme court.

 

Twenty percent of the funds received under this subsection must be

 

remitted by an indigent criminal defense system to the department

 

in a manner prescribed by the department and reported to the MIDC

 

by October 31 of each year. The funds received by the department

 

under this subsection must be expended by the MIDC in support of

 

indigent criminal defense systems in this state. The remaining 80%

 

of the funds collected under this subsection may be retained by the

 

indigent criminal defense system for purposes of funding the court

 

and must not count toward the local share.

 

     Sec. 15. (1) Except as provided in section 5, if a dispute

 

arises between the MIDC and an indigent criminal defense system

 

concerning the requirements of this act, including a dispute

 

concerning the approval of an indigent criminal defense system's

 

plan, cost analysis, or compliance with section 13 or 17, the

 

parties shall attempt to resolve the dispute by mediation. The

 

state court administrator, as authorized by the supreme court,

 

shall appoint a mediator agreed to by the parties within 30

 

calendar days of the mailing date of the official notification of

 

the third disapproval by the MIDC under section 13(4) to mediate

 

the dispute and shall facilitate the mediation process. The MIDC

 

shall immediately send the state court administrative office a copy

 

of the official notice of that third disapproval. If the parties do

 

not agree on the selection of the mediator, the state court

 

administrator, as authorized by the supreme court, shall appoint a

 

mediator of his or her choosing. Mediation shall must commence

within 30 calendar days after the mediator is appointed and

 

terminate within 60 calendar days of its commencement. Mediation

 

costs associated with mediation of the dispute shall must be paid

 

equally by the parties.

 

     (2) If the parties do not come to a resolution of the dispute

 

during mediation under subsection (1), all of the following apply:

 

     (a) The mediator may submit his or her recommendation of how

 

the dispute should be resolved to the MIDC within 30 calendar days

 

of the conclusion of mediation for the MIDC's consideration.

 

     (b) The MIDC shall consider the recommendation of the

 

mediator, if any, and shall approve a final plan or the cost

 

analysis, or both, in the manner the MIDC considers appropriate

 

within 30 calendar days, and the indigent criminal defense system

 

shall implement the plan as approved by the MIDC.

 

     (c) The indigent criminal defense system that is aggrieved by

 

the final plan, cost analysis, or both, may bring an action seeking

 

equitable relief as described in subsection (3).

 

     (3) The MIDC, or an indigent criminal defense system may bring

 

an action seeking equitable relief in the circuit court only as

 

follows:

 

     (a) Within 60 days after the MIDC's issuance of an approved

 

plan and cost analysis under subsection (2)(b).

 

     (b) Within 60 days after the system receives grant funds under

 

section 13(7), 13(8), if the plan, cost analysis, or both, required

 

a grant award for implementation of the plan.

 

     (c) Within 30 days of the MIDC's determination that the

 

indigent criminal defense system has breached its duty to comply

with an approved plan.

 

     (d) The action shall must be brought in the judicial circuit

 

where the indigent criminal defense service is located. The state

 

court administrator, as authorized by the supreme court, shall

 

assign an active or retired judge from a judicial circuit other

 

than the judicial circuit where the action was filed to hear the

 

case. Costs associated with the assignment of the judge shall must

 

be paid equally by the parties.

 

     (e) The action shall must not challenge the validity,

 

legality, or appropriateness of the minimum standards approved by

 

the department.

 

     (4) If the dispute involves the indigent criminal defense

 

system's plan, cost analysis, or both, the court may approve,

 

reject, or modify the submitted plan, cost analysis, or the terms

 

of a grant awarded under section 13(7) 13(8) other than the amount

 

of the grant, determine whether section 13 has been complied with,

 

and issue any orders necessary to obtain compliance with this act.

 

However, the system shall must not be required to expend more than

 

its local share in complying with this act.

 

     (5) If a party refuses or fails to comply with a previous

 

order of the court, the court may enforce the previous order

 

through the court's enforcement remedies, including, but not

 

limited to, its contempt powers, and may order that the state

 

undertake the provision of indigent criminal defense services in

 

lieu of the indigent criminal defense system.

 

     (6) If the court determines that an indigent criminal defense

 

system has breached its duty under section 17(1), the court may

order the MIDC to provide indigent criminal defense on behalf of

 

that system.

 

     (7) If the court orders the MIDC to provide indigent criminal

 

defense services on behalf of an indigent criminal defense system,

 

the court shall order the system to pay the following amount of the

 

state's costs that the MIDC determines are necessary in order to

 

bring the indigent criminal defense system into compliance with the

 

minimum standards established by the MIDC:

 

     (a) In the first year, 10% 20% of the state's costs.

 

     (b) In the second year, 20% 40% of the state's costs.

 

     (c) In the third year, 30% 60% of the state's costs.

 

     (d) In the fourth year, 40% 80% of the state's costs.

 

     (e) In the fifth year, and any subsequent year, not more than

 

the dollar amount that was calculated under subdivision (d).

 

     (8) An indigent criminal defense system may resume providing

 

indigent criminal defense services at any time as provided under

 

section 13. When a system resumes providing indigent criminal

 

defense services, it is no longer required to pay an assessment

 

under subsection (7) but shall must be required to pay no less than

 

its share.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.