Gideon Alert: As Michigan Supreme Court again reinstates ACLU Duncan lawsuit, the Race to the Bottom continues in Chippewa and Bay counties

BY David Carroll on Thursday, December 2, 2010 at 1:11 PM
On April 30, 2010, the Michigan Supreme Court unanimously ordered the American Civil Liberties Union class action lawsuit in Duncan v. Michigan to move forward, only to reverse itself on July 16, 2010 in a 4-3 order issued on reconsideration.  By granting summary judgment in favor of the Governor and State of Michigan at that time, most people (including this author) assumed the court had put an end to any opportunity for the plaintiffs to prove they are being denied the effective right to counsel as a result of Michigan’s inadequate and ineffective system of public defense.  (For more information on the Duncan case and orders, see our earlier Gideon Alerts here and here.)  However, on November 30, 2010, the Court issued a third order, reversing itself yet again with another 4-3 vote, that reinstates the original unanimous April 30th order. 
One dissent from the November 30 Order clearly suggests that politics were the motivation behind this latest turn-about.  “The Court’s decision to suddenly expedite this case seems designed to prevent the new Court after January 1, 2011 from considering a motion for reconsideration.”  Politics does appear to be at the heart of all these reconsiderations.  Despite the original unanimous decision, the first reconsideration broke down on partisan lines with the three Republican and one Independent jurists switching positions, seemingly without any new evidence being presented by the defendants as to why their votes should be reconsidered. At the time, the three Democrat jurists said as much in their dissent: “Today’s order slams the courthouse door in plaintiffs’ face for no good reason.” 
Then over the summer Justice Elizabeth Weaver, who claims an Independent ticket, stepped down from the bench, allowing Democratic Governor Jennifer Granholm to appoint a new Democratic justice, Alton Davis.  When that occurred, the Duncan plaintiffs filed a motion to reconsider the court’s grant of the state’s motion for reconsideration.  The Court granted that motion, resulting in the most recent November 30 Order.  Now it is the three dissenting Republican jurists who say there is no basis for the reversal.
The mid-year elections brought yet another political swing on the bench, with Alton Davis losing his seat and Republicans reclaiming a new 4-3 majority effective in 2011.  The state now has another 21 days to file a motion for reconsideration of the reconsideration of the reconsideration – something most court observers assume will happen.  Sadly, the right to counsel of our federal and state constitutions is buffeted back and forth as the political winds blow through Michigan’s highest courthouse.
The political hot potato that Duncan has become seems like the best argument for authorizing the Department of Justice to bring suit against any states, counties or individuals who are involved in a systemic denial of competent representation -- as anticipated by the Justice for All Reauthorization Act of 2010.  After all, while the court ping-pongs Duncan back and forth, the devolution of the right to counsel system in Michigan documented in NLADA’s report A Race to the Bottom continues unabated. 
Though it has not been covered by local press as of this writing, the Chippewa county commissioners are contemplating whether it will be cheaper to close their existing public defender office in favor of a flat-fee contracting system.  Simply put, there is not much farther that Chippewa right to counsel services can devolve.  Chippewa was one of ten counties visited by NLADA site teams.  Among other things, NLADA team members observed that the county failed to provide public defense attorneys with sufficient time and confidential space for attorney-client meetings, as required by American Bar Association Principle 4.  For example, many defense attorneys met out-of-custody clients for the first time in district court, waiting in line to bring their clients one-by-one into the unisex restroom across from judge’s chambers to discuss the charges.
The Public Defender Office in Chippewa suffers a lack of independence, as required by Principle 1.  The chief public defender is a county employee, directly hired and supervised by the Chippewa County Board of Commissioners.  At the time of our visit, many criminal justice stakeholders noted that “most commissioners consider the criminal justice system a low priority – and the public defender office the lowest of the low.  It is well understood that some commissioners wish to dissolve the office entirely.”  The lack of independence produced what NLADA calls a “bunker mentality” on the part of the chief public defender.  Though the chief public defender felt her rapport with the county board was somewhat better than others in the criminal justice community, this had been achieved based on years of “keeping my head down and not picking any fights.”  At the time of the report, the chief public defender said she “does not ask for any budget increases or fees for investigators and would not think of declaring caseload overload.  In return she is rewarded by being able to keep her job.” 
In the intervening years since the release of the report, it was reported to NLADA that public defender caseloads increased in Chippewa County from an average of 591 cases per attorney to between 1,000 and 1,200 cases per year, nearly half of which are felonies (or, approximately 529% above nationally-recognized caseload standards).  County Commissioners will soon decide whether to outsource the public defender workload to flat fee contractors.
Similar considerations are occurring in Bay County.  On November 27, 2010, the Bay City Times reported that Bay County commissioners are considering combining the two existing primary and conflict public defender offices to save on an administrative assistant position and turning over the conflicts to flat fee contractors.  The county’s Executive is reported to say that “ a qualified law firm would have to come up with a flat rate that is less than the cost the county would pay to maintain the status quo.”

Another focus of the NLADA report, Bay County had troubles similar to Chippewa in regard to caseload.  After the NLADA site visit, the move to place cost concerns above constitutional due process began.  “The county decided that the answer to high caseloads was not to add additional public defender staff, but rather to privatize pieces of existing work through the use of flat fee contracts.  Not surprisingly when emphasizing cost control over the constitution, the county had to engage in two requests for proposal processes in soliciting bids for misdemeanor representation.  The first go round, bids came in too high for the county commissioners’ liking.  Suspecting that limiting bids to Bay County attorneys only was artificially inflating the cost, the county commissioners voted to redo the process and also allow attorneys from outside of the county to bid.  This process worked as the county received lower bids, and the staff public defenders no longer handle misdemeanor cases.  Misdemeanors are handled by private counsel on a flat-fee contract.  This on-going devolution of independence in favor of cost containment is a common theme throughout Michigan.”