Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

July 16, 2010

139345-7(108)(109)

CHRISTOPHER LEE DUNCAN, BILLY JOE BURR, JR., STEVEN CONNOR, ANTONIO TAYLOR, JOSE DAVILA, JENNIFER O’SULLIVAN, CHRISTOPHER MANIES, and BRIAN SECREST, Plaintiffs-Appellees,

v SC: 139345 COA: 278652 Ingham CC: 07-000242-CZ 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,

v SC: 139346 COA: 278858 Ingham CC: 07-000242-CZ 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,

v SC: 139347 COA: 278860 Ingham CC: 07-000242-CZ

STATE OF MICHIGAN and GOVERNOR OF2

MICHIGAN, Defendants-Appellants.

________________ _______________ __________/

On order of the Court, the motion for r econsideration of this Court’s April 30, 2010 order is considered, and it is GRANTE D. We VACATE our order dated April 30, 2010. On reconsideration, leave to appeal having been granted and the briefs and oral argument of the parties having been consider ed by the Court, we REVERSE the June 11, 2009 judgment of the Court of Appeals for th e reasons stated in the Court of Appeals dissenting opinion. The defendants are enti tled to summary disposition because, as the Court of Appeals dissenting opin ion recognized, the pl aintiffs’ claims are not justiciable. Accordingly, we REMAND this case to the Ingham Circuit Court for entry of summary disposition in favor of the defendants . The motion for stay is DENIED.

M ARKMAN , J. ( concurring ).

I concur with the order granting defendant’s motion for reconsideration, vacating this Court’s order of April 30, reversing the Court of Appeals, and remanding to the trial court for entry of summary disposition in favor of defendants. In our prior order, we

affirmed the result of the Court of Appeals, asserting that because “[t]his case is at its earliest stages and, based solely on the plaintiffs’ pleadings in this case, it is premature to

make a decision on the substantive issues.” This was error for two reasons. First, as defendants observe, this order vacated the Court of Appeals opini on without articulating any governing standards. Second, it is not premature to decide this case because the precise issue presented is whether plaintiffs have stated a claim on which relief can be granted, and this, as well as the threshold ju sticiability issues, can be determined on the face of the complaint. Defe ndants, in my view, are entitled to summary disposition for the following reasons set forth in th e Court of Appeals’ dissent:

(1) The U.S. Supreme Court in Gideon v Wainwright , 372 US 335 (1963), and Strickland v Washington , 466 US 668 (1984), “was concer ned with results, not process. It did not presume to tell the states how to assure that indigent criminal defendants

receive effective assistan ce of counsel.” 284 Mich App 246, 357 (2009).

(2) Plaintiffs’ claims would have “the judiciary override the Michigan system of local control and funding of legal services fo r indigent criminal defendants,” despite the absence of any constitu tional violation. Id . at 358.

(3) Plaintiffs’ claims are not sufficient to create a presumption of either prejudice, or prejudice per se, that would warrant either declaratory or injunctive relief. Id . at 361.

(4) Plaintiffs lack standing, and, theref ore, their claims are not justiciable. Id . at
371.3

(5) Plaintiffs’ claims are not ripe for adju dication, and, therefore, their claims are not justiciable. Id . at 371, 376.

(6) Plaintiffs’ claims are not justiciable a nd, therefore, the relie f they seek should not be granted. Id . at 385.

(7) In finding a justiciable controversy, the Court of Appeals erred in adopting a number of assumptions that are conjectural and hypothetical, incl uding assumptions that plaintiffs and the class they purport to represent will be co nvicted of the crimes with which they are charged; that such convictions will resu lt from prejudice stemming from

ineffective assistance of counsel; that such in effective assistance w ill be attributable to the inaction of defendants; and that trial a nd appellate judges will be unable or unwilling

to afford relief for such viola tions of the Sixth Amendment. Id . at 368-370.

(8) There is no constitutional precedent th at “guarantees an i ndigent defendant a particular attorney” or an “attorney of a particular le vel of skill”; that requires a “predetermined amount of outside resources be available to an attorney”; or that requires that there be a “meaningful relationship with counsel.” Id . at 370.

(9) The Court of Appeals assertions th at affording plaintiffs injunctive relief “could potentially entail a cessation of crim inal prosecutions against indigent defendants,” id . at 273, and “that nothing in this opi nion should be read as foreclosing entry of an order granting the type of relie f so vigorously challenged by defendants,” id

. at 281, accurately describe the potential cons equences of its opinion, which consequences would constitute an altogether unwarranted a nd improper response to plaintiffs’ claims.

Id . at 380-385.

(10) The Court of Appeals has “issued an open invitation to the trial court to assume ongoing operational control over the systems for providing defense counsel to indigent criminal de fendants in Berrien, Genesee and Muskegon counties. ” And with that invitation comes a “blank check” on the part of the judiciary to “force sufficient state level legislative appropriations and executiv e branch acquiescence” in assuming similar control over the systems in every county in this stat e, while “nullifying the provisions” of the criminal defense act and “superseding th e authority of the Supreme Court and the

State Court Administrator.” Id . at 383-384.

For all of these reasons, I agree with th e Court of Appeals dissent that defendant’s motion for summary disposition should have been granted. 1

1 Specifically, however, I do not agree necessarily with the Court of Appeals dissent that our state “has not fully met its obligations” under Gideon and Strickland

. Id . at 398. It is unnecessary to address this issue at this time.4

C ORRIGAN and Y OUNG , JJ., join the statement of M ARKMAN , J.

K ELLY

, C.J. ( dissenting ).

The motion for reconsideration should be de nied. It adds nothing new to warrant an outcome different from the one correctly re ached in this Court’s April 30, 2010 order. Thus, there is no basis for this Court’s deci sion to reverse the Court of Appeals.

FA CTS AND PROCEDURAL HISTORY

This case involves a class action suit brought by indigent criminal defendants in Berrien, Genesee, and Muskegon co unties. Plaintiffs allege th at they, as well as future indigent defendants subject to felony pros ecutions, are being denied their state and federal constitutional rights to counsel and the effective assistance of counsel. Plaintiffs allege that these constitutional violations stem directly from the i ndigent defense systems currently used in those counties.

The trial court certified plaintiffs’ claims as a class action an d denied defendants’ motions for summary disposition. Defendants filed an interlocutory appeal in the Court of Appeals, which affirmed the trial court in a divided opinion. 2 Judge W HITBECK dissented and would have granted summary disp osition to defendants. He concluded that plaintiffs lacked standing, that their claims we re neither ripe nor justiciable, and that the class had been erroneously certified. 3

Defendants appealed to this Court, and we granted leave to appeal. 4 We heard oral argument in April 2010. On April 30, 2010, we issued an order affirming the result reached by the Court of Appeals. 5 The order was premised on the important

consideration that this case is at its earliest stages. Given that we must rule solely using plaintiffs’ pleadings, it is premature to make a decision on the substantive issues. Finally, our order vacated the trial court’s grant of class certification and remanded the case to

that court for reconsideration in light of our decision in Henry v Dow Chemical

. 6
Notably, no justice dissented from that order.

2 Duncan v State of Michigan , 284 Mich App 246 (2009).

3 Id. at 371, 376, 380, 388 (W HITBECK , J., dissenting).

4 Duncan v State of Michigan

, 485 Mich 1003 (2009).

5 Duncan v State of Michigan , 486 Mich 906 (2010).5

Defendants filed this motion for reconsideration on May 21, 2010. In it,

defendants restate the same ar guments from their application for leave to appeal. Their only new argument criticiz ed our April 30 order as failing to provide proper guidance for

the lower court.

WHAT HAS CHANGED?

Our court rules require that in order to be entitled to relief 7 a litigant seeking reconsideration must demonstrate that our pr evious ruling rested on a “palpable error.” Yet there is nothing in defend ants’ motion for reconsideration of which we were not fully aware when we issued our previous order. What has changed warranting a different outcome now? Defendants comp lain that this Court’s original order affirms the result of the Court of Appeals decision and vacate s its reasoning without articulating any governing standards. However, we were cert ainly aware when we issued our previous order that, by affirming only the result re ached by the Court of Appeals, we were remanding the case without a controlling standard.

Indeed, the only arguments proffered in favor of granting reconsideration are a revival of arguments that our pr evious order rejected. In thei r answer, plaintiffs correctly

note that defendants’ motion merely repeats the arguments it made earlier and that defendants are effectively asking this Co urt to issue an advi sory opinion.

PLAINTIFFS ’ CLAIMS ARE JUSTICIABLE

Regarding the substantive issues in this case, our prior order co rrectly affirmed the result that the Court of Appeals majority reache d. The concer ns about the justiciability of plaintiffs’ claims sp elled out in Judge W HITBECK ’s dissenting opin ion and accepted by the majority here are premature. Virtually all of those concerns relate to the type of relief sought by plaintiffs. The dissent criticized the majority for accep ting four “assumptions” by allowing the cas e to go forward. 8 Yet the dissent failed to acknowledge that its

6 Henry v Dow Chemical

, 484 Mich 483 (2009).

7 MCR 2.119(F)(3).

8 Duncan , 284 Mich App at 369-370 (W HITBECK , J., dissenting):

For [plaintiffs’] cl aims to be resolved pre -conviction requires at least four basic assumptions:6

reasoning rested on four unsupported assumptions of its own: (1) that plaintiffs would prevail on the merits, (2) that the trial c ourt would order sweepi ng declaratory and injunctive relief beyond the scop e of its authority, (3) that such relief would necessarily entail the judicial branch taking “operational c ontrol” of the indigent defense systems in the counties in question, and (4) that if all of the above occurred, proper appellate review at that juncture would somehow be inadequate.

I find the assumptions of the Court of Appeals majority less troubling than those of the dissent, particularly given that this case is before us at a very preliminary stage. Thus, I agree with the Court of Appeals major ity that “the trial court has jurisdiction and authority to order declaratory relief, prohi bitory injunctive relie f, and some level of mandatory injunctive relief, th e full extent of which we need not presently define.” 9

At this preliminary stage, plaintiffs’ clai ms adduce facts that establish that they have standing, and that their claims are ripe . Also, they state a claim upon which relief can be granted. Today’s order slams the c ourthouse door in plain tiffs’ face for no good

reason.

CONCLUSION

The majority’s decision to grant reconsideration and re verse the Court of Appeals judgment rests on no new information and on no “palpable error.” Because I

• That the Duncan plai ntiffs, and the class me mbers they purport to represent, will in fact be convicted of the crimes with which they are charged or of some lesser offense;

• That inactions of the state and the Governor will have caused such convictions; that is, these inactions will have so prejudiced the defense that the Duncan plaintiffs and the class they purport to repres ent will have been denied their Sixth Amendment right to a fair trial;

• That the trial courts in the th ree named counties will be unable or unwilling to correct such re sults by ordering new tr ials on the basis of a finding of deficient performance and pr ejudice to the individual defendants;

and

• That it is likely that if the Duncan plaintiffs are granted the preconviction declaratory an d injunctive relief they seek, this will redress

the situation for them and for the cl ass they purport to represent.

9 Duncan , 284 Mich App at 254-255.I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk July 16, 2010

d0714 7

continue to believe that our order of April 30 correctly rejected defendants’ arguments in favor of its motions for summary disposition, I dissent.

C AVANAGH and H ATHAWAY , JJ., join the statement of K ELLY , C.J.