Bill Text: MI HB5985 | 2017-2018 | 99th Legislature | Engrossed
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-Engrossed.html
HB-5985, As Passed Senate, June 12, 2018
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 5985
A bill to amend 2013 PA 93, entitled
"Michigan indigent defense commission act,"
by amending sections 3, 5, 7, 9, 11, 13, 15, and 17 (MCL 780.983,
780.985, 780.987, 780.989, 780.991, 780.993, 780.995, and 780.997),
sections 3, 5, and 11 as amended by 2016 PA 439, section 9 as
amended by 2016 PA 440, section 13 as amended by 2016 PA 441,
section 15 as amended by 2016 PA 442, and section 17 as amended by
2016 PA 443, and by adding section 22.
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) "Consumer Price Index" means the annual United States
Consumer Price Index for all urban consumers as defined and
reported by the United States Department of Labor, Bureau of Labor
Statistics.
(c) (b)
"Department" means the
department of licensing and
regulatory affairs.
(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.
Beginning on November 1, 2018, if the Consumer Price Index has
increased since November 1 of the prior state fiscal year, the
local share must be adjusted by that number or by 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.
is an
autonomous entity within the department. Except as otherwise
provided by law, the MIDC shall exercise its statutory powers,
duties, functions, and responsibilities independently of the
department. The department shall provide support and coordinated
services as requested by the MIDC including providing personnel,
budgeting, procurement, and other administrative 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 December 15 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) One member representing the funding unit of a circuit
court from a list of 3 names submitted by the Michigan Association
of Counties.
(l) One member representing the funding unit of a district
court from a list of 3 names submitted by the Michigan Township
Association.
(m) 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.
(n) 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. 9. (1) The MIDC has the following authority and duties:
(a) Developing and overseeing the implementation, enforcement,
and modification of minimum standards, rules, and procedures to
ensure that indigent criminal defense services providing effective
assistance of counsel are consistently delivered to all indigent
adults in this state consistent with the safeguards of the United
States constitution, the state constitution of 1963, and this act.
(b) Investigating, auditing, and reviewing the operation of
indigent criminal defense services to assure compliance with the
commission's minimum standards, rules, and procedures. However, an
indigent criminal defense service that is in compliance with the
commission's
minimum standards, rules, and procedures shall must
not be required to provide indigent criminal defense services in
excess of those standards, rules, and procedures.
(c) Hiring an executive director and determining the
appropriate number of staff needed to accomplish the purpose of the
MIDC consistent with annual appropriations.
(d) Assigning the executive director the following duties:
(i) Establishing an organizational chart, preparing an annual
budget, and hiring, disciplining, and firing staff.
(ii) Assisting the MIDC in developing, implementing, and
regularly reviewing the MIDC's standards, rules, and procedures,
including, but not limited to, recommending to the MIDC suggested
changes to the criteria for an indigent adult's eligibility for
receiving criminal trial defense services under this act.
(e) Establishing procedures for the receipt and resolution of
complaints, and the implementation of recommendations from the
courts, other participants in the criminal justice system, clients,
and members of the public.
(f) Establishing procedures for the mandatory collection of
data concerning the operation of the MIDC, each indigent criminal
defense system, and the operation of indigent criminal defense
services.
(g) Establishing rules and procedures for indigent criminal
defense systems to apply to the MIDC for grants to bring the
system's delivery of indigent criminal defense services into
compliance with the minimum standards established by the MIDC.
(h) Establishing procedures for annually reporting to the
governor, legislature, and supreme court. The report required under
this subdivision shall include, but not be limited to,
recommendations for improvements and further legislative action.
(2) Upon the appropriation of sufficient funds, the MIDC shall
establish minimum standards to carry out the purpose of this act,
and collect data from all indigent criminal defense systems. The
MIDC shall propose goals for compliance with the minimum standards
established under this act consistent with the metrics established
under this section and appropriations by this state.
(3) In establishing and overseeing the minimum standards,
rules, and procedures described in subsection (1), the MIDC shall
emphasize the importance of indigent criminal defense services
provided to juveniles under the age of 17 who are tried in the same
manner as adults or who may be sentenced in the same manner as
adults and to adults with mental impairments.
(4) The MIDC shall be mindful that defense attorneys who
provide indigent criminal defense services are partners with the
prosecution, law enforcement, and the judiciary in the criminal
justice system.
(5)
The commission MIDC shall establish procedures for the
conduct of its affairs and promulgate policies necessary to carry
out its powers and duties under this act.
(6)
Commission MIDC policies shall must be placed in an
appropriate manual, made publicly available on a website, and made
available to all attorneys and professionals providing indigent
criminal defense services, the supreme court, the governor, the
senate majority leader, the speaker of the house of
representatives, the senate and house appropriations committees,
and the senate and house fiscal agencies.
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
must 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 an indigent criminal defense system
determines that a defendant is partially indigent, the indigent
criminal defense system shall determine the amount of money the
defendant must contribute to his or her defense. An indigent
criminal defense system's determination regarding the amount of
money a partially indigent defendant must contribute to his or her
defense
is subject to judicial review. 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,
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 determination that a defendant is partially indigent may
only be made if the indigent criminal defense system determines
that a defendant is not fully indigent. An indigent criminal
defense system that determines a defendant is not fully indigent
but may be partially indigent must utilize the screening process
under subdivision (c). The provisions of subdivision (e) apply to a
partially indigent defendant.
(e) The MIDC shall promulgate objective standards for indigent
criminal defense systems to determine whether a defendant is
indigent or partially indigent. These standards must include
availability of prompt judicial review, under the direction and
supervision of the supreme court, if the indigent criminal defense
system is making the determination regarding a defendant's
indigency or partial indigency.
(f) The MIDC shall promulgate objective standards for indigent
criminal defense systems to determine the amount a partially
indigent defendant must contribute to his or her defense. The
standards must include availability of prompt judicial review,
under the direction and supervision of the supreme court, if the
indigent criminal defense system is making the determination
regarding how much a partially indigent defendant must contribute
to his or her defense.
(g) (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 60 180
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, 2021 that includes a
recommendation regarding the appropriate level of local share,
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 appropriate funds
that apply to less
than all of the minimum standards and may provide less than the
full amount of the funds requested under subsection (5).
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 funds utilized by 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.
(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) The court shall collect contribution or reimbursement
from individuals determined to be partially indigent under
applicable court rules and statutes. Reimbursement under this
subsection is subject to section 22 of chapter XV of the code of
criminal procedure, 1927 PA 175, MCL 775.22. The court shall remit
100% of the funds it collects under this subsection to the indigent
criminal defense system in which the court is sitting. Twenty
percent of the funds received under this subsection by an indigent
criminal defense system must be remitted 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 reimbursing the
costs of collecting the funds under this subsection and funding
indigent defense in the subsequent fiscal year. The funds collected
under this subsection must not alter the calculation of the local
share made pursuant to section 3(i).
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.
Sec. 17. (1) Except as provided in subsection (2), every local
unit of government that is part of an indigent criminal defense
system shall comply with an approved plan under this act.
(2)
A system's duty of compliance with the terms of 1 or more
standards
within the plan as prescribed under
subsection (1) is
contingent upon receipt of a grant in the amount sufficient to
cover that particular standard or standards contained in the plan
and cost analysis approved by the MIDC.
(3) The MIDC may proceed under section 15 if an indigent
criminal defense system breaches its duty of compliance under
subsection (1).
Sec. 22. (1) The Michigan indigent defense fund is created
within the state treasury.
(2) The state treasurer may receive money or other assets from
any source for deposit into the fund, including private gifts,
bequests, and donations. The state treasurer shall direct the
investment of the fund. The state treasurer shall credit to the
fund interest and earnings from fund investments.
(3) Money in the fund at the close of the fiscal year shall
lapse to the general fund.
(4) The commission shall be the administrator of the fund for
auditing purposes.
(5) The commission shall expend money from the fund to carry
out its responsibilities under this act.
Enacting section 1. This amendatory act takes effect 180 days
after the date it is enacted into law.
