Duncan v. State

246 Mich OF MICHIGAN DUNCANv STATE 9, 2008, 278652, 278858, December and 278860. Submitted Docket Nos. 11, 2009, a.m. at 9:00 at Detroit. Decided June brought an Christopher and seven other individuals L. Duncan Michigan against Ingham the state of in the Circuit Court action Michigan, alleging denial of their state and and the Governor rights effective to counsel and the assistance federal constitutional court-appointed, indigent defense a of the of counsel as result Berrien, Genesee, currently being employed systems and only complaint, pertains Muskegon which counties. Count I of the Governor, right alleged a Amendment violation of Sixth to sought declaratory adequate representation and and to effective injunctive under 42 USC relief for the constitutional violation Governor, II, only alleged pertaining to the a also 1983. Count right process due and Amendment violation of the to Fourteenth injunctive declaratory sought relief under USC 1983.Count and Governor, alleged III, pertains the state and the which to right under the effective assistance of counsel violation of to 1963, 1, 20, sought declaratory injunctive § and art and Const IVj Governor, pertains the state and the which also relief. Count 1, 17, process § art and alleged of due under Const a violation injunctive plaintiffs sought declaratory moved for and relief. The indigent present and certification to include all future class action subject felony prosecutions in the trial courts of the defendants been, being, and will be denied their three counties who have rights and the effective and federal constitutional to counsel state court-appointed, assistance of counsel as result employed by systems currently being The the counties. defense legally responsible alleged that the defendants are for rights securing protecting and the constitutional at issue and that constitutionally systems were the result of the deficient inadequate funding and administra- and lack of fiscal defendants’ systemic oversight. They alleged further that the constitu- tive regard indigent representation continue to tional deficienciesin directly judicial process attributable to the and are infect the failures, re- which can must be defendants’ constitutional Baird, J., court, granted by Laura dressed court action. denied the defendants’ motions for class certification and motion grounds summary disposition based that were on doctrines, immunity, justiciability other theo- governmental denying appealed order as of The defendants ries. ground governmen- summary disposition based on the asserted denying immunity granted appealed the orders leave tal alleged granting summary disposition grounds and the on other appeals The were consolidated. class certification. Appeals The Court of held-. by governmental immunity not The defendants are shielded court, proper the parties to this The trial not Court and are action. Claims, jurisdiction court has in this case. The trial has declaratory relief,

jurisdiction authority in action to order and this injunc- relief, mandatory injunctive prohibitory level of and some relief, Appeals the of which the Court of need not tive full extent pleadings presently be that on the of the define. It can stated basis juncture lawsuit, plaintiffs sufficiently the have at this in the that, true, standing, that alleged facts if establish the establish adjudication, ripe upon claims which declara- is for and state case injunctive tory and relief can awarded. The have be summary disposi- alleged facts to survive a motion for sufficient properly granted the for class certifi- tion. The trial court motion cation. safeguards right The Amendment the to counsel at all 1. Sixth stages process for an who faces critical of the criminal accused proceedings” any stage stage is A “critical of the incarceration. may counsel harm defendant’s to a where absence of rights may applies preliminary proceedings fair trial and to where lost.

be sacrificed or defenses solely alleged against 2. The are based on claims the state against The violations Constitution. lawsuit money liability damages. The state is state is not tort action for immunity granted by seeking law this suit not shielded declaratory injunctive violations. The relief for constitutional governmental immunity properly not trial court concluded that is to available the state. 691.1407(5) immunity protection for the 3. MCL affords no liability this is not a tort Governor because it concerns tort liability money damages. action for law) Any constitutional, (statutory, common 4. state law or being compelled from that can be read to exclude the Governor act, subject injunction, any type preempted otherwise brought equitable against Governor when a suit for relief is constitution, pursuant to 42 USC 1983 a violation federal litigated regardless of the fact that the suit is in a state court. Mich entry simply compelling The order 5. of an the defendants to provide indigent representation defendants consistent with the necessarily and federal not mean state constitutions would that being required by appropriate was the state the court to funds to compliance. arguments regarding into come The defendants’ who authority appropriate treasury has the from the state funds ripe not for review this time. The 6. Court of has exclusive Claims neither nor concurrent jurisdiction over claims in case this because there are no ruling or tort contract claims. trial court did not err in that belong did not case the Court of Claims. against judiciary if 7. Even the action could have filed been and the counties that administer the criminal defense systems, joinder parties it was not shown of those was required. The defendants are not relieved of their constitutional judiciary or entitled duties to dismissal even if the and the counties have been should sued. two-part Washington, 8. The test Strickland 466 US 668 (1984),for a claim of ineffective assistance of counsel ain criminal first, case, requires, which that the defendant show that counsel’s

performance and, second, perfor- was deficient the deficient prejudiced defense, is, mance that the existence of a reasonable that, error, probability proceed- but for counsel’s the result of the different, ing have not would been does control civil this suit seeking prospective relief. harm, The 9. criminal defendants in do this action not sustain purposes justiciability analysis right for of and the constitutional counsel, simply effective to the assistance of because of their status indigent subject court-appointed as with defendants counsel to prosecutorial proceedings system presumed existing in a with perfor- deficiencies. There needs to be an instance of deficient inadequate representation, is, representation or falling mance that objective Here, an plain- below standard of reasonableness. if succeed, they prove widespread systemic to tiffs are must and imminent, constituting that constitutional violations are actual or necessary justiciability. the harm establish to The in address- focus ing justiciability early stage at this this case be of must on the allegations complaint. in the any prospective injunctive The 10. relief concerns question sought whether the harm be avoided in the future is imminent. It can that be shown harm is imminent if the widespread systemic can show and of harm that instances actual indigent defense past the current under in the have occurred making counties, thereby the action employed by systems justiciable. civil a class action context of Injury harm is shown the 11. or widespread viola- constitutional seeking prospective relief for

suit below an representation falls court-appointed counsel’s when tions (deficient performance) and objective of reasonableness standard trial, a criminal when or unfair unreliable verdict results in an constructively assistance of actually denied the or is defendant stage proceedings, or when in the altogether at a critical counsel in which performance under circumstances is deficient counsel’s Injury typical or presumed criminal case. in a prejudice would be performance court-appointed counsel’s when harm is shown stage in the to a critical representation is deficient relative reliability and, showing that it affected proceedings absent a to a verdict, performance in a detriment results the deficient a meaningful in some and that is relevant criminal defendant it fashion, pretrial When is example, detention. unwarranted representation falls below court-appointed counsel’s shown respect to a critical objective standard of reasonableness an legally a an invasion of stage proceedings, there has been in the plaintiffs must addition- protected and harm occurs. interest performance and denial ally that instances deficient show by they systemic are caused widespread and that and counsel are court-appointed, defense problems in the and weaknesses by attributable to employed that are systems the three counties If ultimately constitutional failures. the defendants’ caused and pervasive and as to be aggregate harm reaches such a level justiciable systemic), (widespread the case is persistent injunctive declaratory appropriate, relief as well relief is that can rea- violations preclude future harm and constitutional aggregate existing light sonably imminent in be deemed allegations plaintiffs’ complaint are sufficient to in the harm. The controversy genuine between a case or the existence of establish real, hypothetical. reflecting dispute not parties, that is perfor- systemic of deficient Widespread instances 12. system appointed-counsel will by poorly equipped mance caused case-by-case indi- examination of with a cease and be cured not generally required given prejudice appeals, vidual criminal appeal may though a criminal Even often not established. and trial, bearing on the occasionally it has no result in a new systemic deficiencies. continuing constitutional of eradication legal remedy harm that the Thus, adequate for the no there is attempting prevent. plaintiffs to are injury 13. harm exists is an Justiciable or when there actual counsel, overwhelmingly denial is an of when there deficient by performance equating counsel, denial of counsel to constructive conflicting represents indigent with or when counsel interests an plaintiffs’ complaint allegations The defendant. contains that fit categories counsel, within and the actual constructive denial allegations encompass in well as other situations which prejudice presumed. is allegations by plaintiffs 14. The the named include instances of representation by objective counsel fell below an standard of regard stages proceed- in reasonableness to critical in criminal the ings. plaintiffs sufficiently alleged regard 15. The members performance of the instances of class deficient detrimental allegations widespread sys- defendants. The reflect and temic instances of violations to counsel and the plaintiffs alleged effective assistance of counsel. The have a nexus systemic widespread causal connection between and defi- allegations ciencies and defendants. There are sufficient of a injuries complained-of causal connection between the and the conduct, plaintiffs injuries and the have also indicated that the granting would be redressed a favorable court decision prayed-for equitable alleged that, relief. The have facts if true, standing, ripe adjudi- establish establish that the is case cation, upon injunctive declaratory and state claims which presently justiciable relief awarded. can be The case because a controversy case or exists. determining plain- trial 16. The court did not err in that the tiffs satisfied five that a factors court must consider in 3.501(A)(1) determining certify under MCR whether to a class. sufficiently joinder The class is numerous to make of each class impractical. allegations complaint satisfy member The in the commonality requirement regard in to both factual and the legal presented. questions allegations complaint satisfy The in the typicality requirement. allegations repre- that the show parties fairly adequately protect sentative will assert 3.501(A)(2), interests of the class. The factors listed MCR which determining considered whether the maintenance of the superior class action as a action will be other available methods adjudication promoting the convenient administration of justice, weigh in favor of certification the class. Affirmed. Whitbeck, J., dissenting, disagreement stated his with the conclusions,

majority’s supporting and the rationale those conclu- appro- sions, respect plaintiffs’ and the with to the named claims injunctive they declaratory seek. priateness of the and relief that majority’s conclusions, disagreed and the He further with the conclusions, concerning supporting action class rationale those certification. plausibly alleged plaintiffs named cannot assert that the The alleged by the

failures the and the Governor have caused state way performance level is no at the local because there deficient they possibly prove that can such causation. Judge disagreed majority’s that with the conclusion WfflTBECK that, justiciable plaintiffs’ are and stated the named claims that, conclusion, majority holding reaching that the rendered a conjec- alone, standing plaintiffs’ despite named their the claims— nature, despite showing hypothetical that tural and their lack of of and the Governor the situation the inaction the state has caused describe, they despite to a their failure show that favorable per se to estab- decision will redress that situation —are sufficient therefore, and, justiciability. standing, ripeness, lish finding prejudice per be there can A of se cannot made because prejudice in the at a be no Sixth Amendment violation absence of adjudicated particular trial. Amendment claims cannot be Sixth particular preju- apart a from circumstances of case because any an of Sixth Amendment violation. dice is essential element adequate Injunctive may only when there is no relief issue law, remedy remedy Under does exist in this case. but Strickland, show, plaintiffs postconviction, if can the named performance stages proceeding was at critical of the their counsels’ prejudice them, they judicial so deficient as to cause to can seek declaratory sweeping preconviction intervention and redress. The injunctive plaintiffs inappropri- named relief that the seek is ate, proper separation respect concept basic of and a for the judiciary powers requires that the decline to issue such relief. by granting the certifi- The trial court erred motion for class they cation because named show that failed to imminently an actual themselves have suffered or will suffer injury they in that did not establish that the actions or inactions caused a denial of the state and the Governor have or will cause rights, purported class their Sixth Amendment because the rely they indigent represent persons who seek adult —all rely provide them defense services will on counties felony adequately identify sufficiently numerous cases—failed to by identifying members suffered actual class not class who have injury standing to and therefore have sue. Although inadequacies the state and the Governor concede indigent system, the current criminal defense trial court erred by denying summary disposition the defendants’ motion for under 2.116(C)(8) and, granted consequently, erred MCR when it for The motion class certification. orders of the trial court should entry be reversed and the case should be remanded summary disposition in favor state and the Governor. Right— —Appointment 1. Law Constitutional Counsel. Counsel constitutionally represented by entitled to be prosecuted state; when counsel for a crime state has an provide they obligation to such defendants counsel when lack the (US attorney Const, XIV; financial means to hire an VI Ams 20). 1, § art Const Right — 2. Constitutional Law — to Counsel —Words and Phrases Critical Stages. right safeguards The Sixth Amendment to at all critical counsel stages process incarceration; theof criminal an accusedwho for faces stage any stage may a critical is where the absenceof counsel harm a right applies preliminary proceedings defendant’s to a fair trial and to (US VI). rights may Const, where be sacrificedor defenses Am lost — — Immunity 3. Governmental Constitutional Law of Violations Consti- tution. immunity against Governmental is not in a available nontort action alleged right where it state is the state has violated (MCL691.1407[1]). by Michigan conferred Constitution — — Immunity 4. Governmental Constitutional Law of Violations Consti- — tution Governor. immunity against Governmental is not available in a action nontort alleged where it Governor is that the violated Governor has (MCL 691.1407C5]). Michigan Constitution Against Injunctions — — — — 5. Equity Actions Actions Governor Civil Rights. law) constitutional, Any (statutory, law state or common being compelled act, excludes Governor from otherwise subjected any type injunction, preempted when suit for equitable brought against pursuant relief is the Governor to 42 regardless USC for violation of the federal constitution and litigated the fact that the suit is in a state court. — — 6. Courts Court Claims Jurisdiction. jurisdic-

The Court Claims has exclusive nor neither concurrent Michigan Opinion of the Court declaratory against seeking the state where relief claims tion over (MCL 600.6419, asserted or tort claims there are no contract 600.6419a). Indigent — — of Counsel Effective Assistance Law 7. Constitutional Defendants. justicia- harm, purposes of for do not sustain defendants Criminal effective assis- analysis to the bility and the constitutional counsel, simply of their status because tance of subject prosecutorial court-appointed counsel with defendants existing in the system presumed deficiencies proceedings in a performance or system; of deficient needs to be an instance there inadequate representation for harm to occur. — - of Class. Certification Class Action 8. Actions motion, must court, evaluating certification a class A trial when request support allegations accept made in as true the certification. (by Fund of Liberties Union

American Civil P. Moss, and Mark L. Steinberg, Kary Michael J. Granzotto), Granzotto, R. (by PC. Mark Fancher), Mark Cravath, Eaman), (by Frank D. D. Eaman PLLC Frank and Elizabeth LLP Julie A. North (by & Moore Swaine Founda- Civil Liberties Union and American Kennedy), for the Emily Chiang) (by Dahlberg and tion Robin plaintiffs. Restuccia, General, Cox, B. Eric Attorney A.

Michael Barton, A. General, Margaret and Denise C. Solicitor Evans, Assis- Sherman, Jason R. Nelson, Ann M. and General, the defendants. for Attorneys tant Whitbeck, JJ. MURPHY,EJ., and and SAWYER Before: a claim core, case involves MURPHY, At its this EJ. with members along plaintiffs, the named indigent defen- class, i.e., and future present certified trial courts in the felony prosecutions subject dants counties, have Berrien, Genesee, Muskegon and MICH Opinion the Court been, being, be are and will denied their state and rights federal constitutional to counsel and the effective counsel, 1963, 1, 20,§ assistance of Const art and US Const, VI, directly Am as result of court- appointed, indigent systems currently being defense employed by those counties. According plaintiffs, even and the though counties circuit court chief been judges statutorily delegated have the duties asso- ciated providing representation crimi- defendants, nal Governor, the state of and the suit, ultimately defendants this legally remain re- sponsible for securing protecting the constitutional rights And plaintiffs at issue. assert that the constitu- tionally deficient county systems were out of and born by inadequate created defendants’ funding lack of fiscal and oversight. administrative They allege further the systemic constitutional in regard deficiencies to indigent representation continue judi- to infect the cial process and attributable directly to defendants’ failures, constitutional which can and must be re- dressed by court action. No. 278652, Docket defendants appeal 2.116(C)(7)

the trial court’s order denying under MCR their for summary disposition motion on govern- based mental immunity. In No. 278858, Docket defendants appeal by granted leave the trial denying court’s order their for summary disposition motion on numerous theories, including justiciability various Fi- doctrines. nally, in Docket No. defendants leave appeal granted trial court’s order granting class certifica- tion. The were appeals consolidated. affirm,

We holding that defendants are not shielded by governmental immunity, that are proper defendants parties, court, Claims, that the trial not the Court of has jurisdiction, and that the trial court jurisdiction has Opinion of the Court relief, injunc-

authority declaratory prohibitory to order relief, mandatory injunctive relief, and some level tive need define. presently of which we not the full extent and pleadings the that, on basis further hold We lawsuit, in have suffi- juncture the at this standing, that, true, if establish facts ciently alleged and state ripe adjudication, the case is establish that can declaratory injunctive and relief claims which upon trial court Finally, prop- hold that the awarded. we be for class certification. granted the motion erly role of by observing that the preface opinion our We government tripartite system in our judiciary entails, language, constitutional part, interpreting given to the facts requirements constitutional applying halt- rights, and case, safeguarding in a constitutional and For state federal ing unconstitutional conduct. may we any meaning, to have provisions constitutional litigation where engage in this role even and must the executive and encompasses by legislative conduct accept proposition branches. We cannot rights citizens, our even those accused constitutional counsel, not and too to afford poor of crimes any protection by judiciary and deserving worthy legislative in a situation where executive mandates comply branches fail to with constitutional responsibilities, their constitutional either and abdicate courts, or If then intentionally neglectfully. by not not failure by ruling whom? We are a constitutional here, it alleged has occurred but has been fact This, however, not judicially needs to addressed. does be may political mean make public policy, that we set efficient desirable judgments, or demand that more carrying by political means be utilized branches if a obligations. path their But chosen out constitutional in an legislative branches taken executive obligations alleg- satisfy effort to their constitutional Opinion of the Court edly fails to meet minimum requirements, constitutional judiciaiy allegations the must examine the adjudicate and dispute. judiciary by the so is intervening acting not judicial of modesty with lack or in violation of the in separation powers; it accordance acting with its obligations, duties, constitutional and oaths See office. Bush, v Boumediene 2229, 2259; 128 S Ct US_,_; (1 L Marbury Madison, (2008); 171 Ed 2d 5 US Cranch) (1803). 137, 177-180; 2 L Ed 60 Failing to do so political results the branches’ effectively deciding is,” Boumediene “what the and Marbury, supra, law impinging judiciary’s on role in sepa- violation powers. modesty ration of Judicial does not equate to ignoring obligations. constitutional Constitutional compli- only concern; ance is our matters regarding the method by and manner which the legislative executive and branches effectuate constitutional demands are our not be, concern, nor can they as long branches abide the state and federal vein, constitutions. that same and respect with to the particular action, issues raised in this concerns about costs and fiscal impact, concerns regarding which governmental entity or entities should bear the costs, and concerns governmental about which body operate bodies should indigent an defense system cannot prevail be allowed to over constitutional compliance, de- any spite visceral reaction the contrary. We take no position validity on the of plaintiffs’ allegations and claims, nor are the underlying of any motivations party relevant. simply merely We and hold that plaintiffs have alleged facts sufficient to summary survive motion for disposition.

I. THE COMPLAINT In a highly detailed complaint, plaintiffs allege indigent defense systems place Berrien, now Duncan v

Opinion of the Court underfunded, are Genesee, Muskegon counties and administered, partici- not ensure that the and do poorly tools, time, necessary attorneys have the defense pating represent adequately qualifications and by prosecu- presented the cases put defendants and testing. adversarial meaningful crucible of tors to the wholly county systems Plaintiffs assert eligibility client following: to the lacking respect pro- and retention standards; attorney hiring, training, standards; and workload grams; performance written counsel; monitoring supervision appointed from guidelines; independence conflict of interest offices. Plaintiffs claim judiciary prosecutorial representation, form of denied improperly harm in the convictions, unnecessary prolonged pretrial or wrongful detentions, factually guilty pleas, lengthy unwarranted inadmissible delays, and the introduction of pretrial had pretrial could have been excluded evidence that in the Plaintiffs claim further harm motions been filed. of by counsel who have conflicts representation form of interest, that are harsher than warranted or sentences unsound, trial failures due to hearing and legally inquiry, investiga- counsel and the lack of unprepared tools, and to witnesses. tion, investigatory expert access examples support numerous complaint provides The of these contentions. instances complaint proceeds provide specific to by inadequate performances deficient and alleged attorneys to the court-appointed respect with

various overview, As an these eight indigent plaintiffs. named plain- include: counsel with alleged speaking instances time, in minutes tiffs, holding for the first cells for mere in full examinations while preliminary before scheduled inmates; advising plain- of other counsel hearing range without mean- preliminary tiffs to waive examinations matters; counsel discussions of case-relevant ingful Opinion of the Court to failing provide police reports; and coun- plaintiffs generally neglecting throughout sel the entire course of proceedings plaintiffs criminal to discuss with the accu- racy and the charges, nature of the circumstances of the crimes, any purported potential defenses. Further alleged entering instances include: counsel into plea ne- client gotiations input without or counsel approval; per- functorily plaintiffs guilty advising plead charged meaningful investigation inquiry; absent counsel im- properly urging plaintiffs admit facts when pleas were taken; and counsel neither preparing hearings and nor in any trials engaging communications with concerning The complaint alleges trials. that other indi- being gent prosecuted defendants who will pros- be in the face ecuted future the same prospects receiving inadequate and ineffective assistance counsel as that by plaintiffs. received the named respect With plaintiffs, to all named as well as all persons fitting class, those within the the complaint alleges that the inadequacies and ineffectiveness in handling indigent counsel cases ultimately result from failures the state and the Governor to ad- equately provide funding and fiscal and administrative oversight. According plaintiffs, is the it failures by the state and the Governor have caused, causing, and will continue to cause a denial of constitu- tionally adequate legal representation within the sys- tems employed by counties. I of Count the com- plaint, only Governor, which pertains alleges to the right Sixth Amendment violation of the to effective or adequate and representation declaratory seeks and in- junctive relief for the constitutional violation under 42 USC 1983. Count II of the which complaint, per- also only Governor, to alleges tains a Fourteenth Amend- ment violation the right process to due and seeks declaratory injunctive and relief for the constitutional Opinion Court III of the com- 1983. Count 42 USC under violation state, and to the Governor pertains which plaint, assistance the effective to a violation alleges 20, 1963, 1, § art and seeks under Const of counsel of the com- Count IV injunctive relief. declaratory and the Gover- the state and also to pertains which plaint, 1963, under Const process of due nor, a violation alleges relief. and declaratory injunctive 1, § and seeks art relief, seek a court decla- plaintiffs In the prayer act, and conduct, failure to ration that defendants’ unlawful, and consistent unconstitutional practices counts, seek to plaintiffs and alleged the four class members to subjecting from defendants enjoin unconstitutional Plaintiffs also practices. continuing indi- provide defendants “to requiring an order request consistent and programs representation defense gent and Michi- the United States requirements with the Constitutions.” gan disposition summary and

II. CLASScertification 3.501(B), moved for class plaintiffs MCR Pursuant sufficiently was certification, contending that class be joinder imprac- would numerous to the extent raised the named tical, legal and issues that factual of, to, prospective typical were common plaintiffs prospec- members, plaintiffs that the named class share similar harms share or will tive class members named and that deprivations, and constitutional the inter- protect fairly adequately would plaintiffs action, of a class maintenance through ests of the class adju- method of any other superior would be which dication. summary disposition motion for

Defendants filed a (8). 2.116(C)(4), (7), and Defendants MCR pursuant standing, the case was lacked maintained that 260 284 246 MICH Opinion the Court adjudication, not trial ripe jurisdic- court lacked variety tion on there failure grounds, was a to state declaratory a claim which upon injunctive relief wrong sued, granted, parties could be were governmental immunity shielded defendants from li- nature ability. particular of each will be argument analysis, given discussed below our that defendants’ arguments appeal. were renewed on

At hearing the trial which court addressed plaintiffs’ motion for class certification well as defen- dants’ summary disposition, motion for the court granted rejected class the grounds certification all raised by summary defendants support dispo- sition motion. We shall discuss the court’s reasoning when appellate we examine each of the issues raised defendants.

III. ANALYSIS A. STANDARDS OF REVIEW This Court reviews de a trial novo court’s decision on a motion for summary disposition. Fischer, Kreiner v 471 (2004). 109, 129; Mich 683 NW2d 611 Also reviewed de law, novo are issues constitutional Co v Wayne Hath cock, 445, 455; (2004), 471 Mich 684 NW2d 765 statutory interpretation, Feyz v Mem Mercy Hosp, 672; 1 (2006), 719 NW2d governmental immunity, Bennett Chief, 307, 310-311; Detroit Police Mich App 274 732 (2007), NW2d jurisdiction, Atchison, Atchison v 531, 534; (2003), Mich App 664 NW2d 249 and matters concerning justiciability, Michigan Chiropractic Council v Comm’r Services, Financial & Ins Office of (2006). 363, 369; Mich 716 NW2d 561

“A trial court’s ruling regarding certification of a error, class is for clear meaning reviewed that the ruling Duncan v Opinion of the Court there is no only erroneous where clearly will be found but this there is evidence it or support evidence to and firm a definite ‘left with Court is nevertheless ” Hill v City made.’ that a mistake has been conviction 299, 310; 740 NW2d 706 Mich Warren, App 276 of App Corp, Zine v (2007), Chrysler quoting (1999). 261, 270; 600 NW2d 384 PRINCIPLES B. UNDERLYING CONSTITUTIONAL TO GENERALLY 1. THE RIGHT COUNSEL enjoy the accused shall prosecutions, “In all criminal for his of Counsel have the Assistance right to ... under Const, right Am The to counsel VI. defence.” US the states made to applicable Amendment the Sixth Clause of the Fourteenth the Due Process to pursuant 641; 634, Mich 683 Williams, Amendment. v 470 People US (2004), Wainwright, citing Gideon NW2d 597 (1963). 792; L 2d 799 Under the 335; Ct Ed 83 S Constitution, every prosecu- criminal “[i]n right to ... have the tion, accused shall have Const defense[.]” her of counsel for his or assistance 1, § made clear that art 20. Gideon represented by to coun- constitutionally entitled be are state, by the even for a crime prosecuted sel when hire an attor- the financial means to they lack though obligation provide an to and that the state has ney, Gideon, wholeheartedly at 344. We supra them counsel. articulated following wise sentiments agree with in Gideon: Supreme United States Court safeguards of the of counsel is one The assistance necessary fundamen- to insure Sixth Amendment deemed liberty.... rights The Sixth Amend- of life and tal human if the constitu- constant admonition that ment stands as a lost, justice not... be safeguards provides it be will tional done. 284 MICH

Opinion Court require recognize . . . us to [R]eason reflection adversary any system justice, person in our of criminal court, lawyer, to hire poor haled into who is too cannot be provided fair trial unless counsel is for him. This assured a Governments, us seems to to be an obvious truth. both federal, quite properly spend money state and vast sums machinery try to to defendants establish accused crime. Lawyers prosecute everywhere to to deemed essential public’s orderly protect society.Similarly, in an interest charged crime, indeed, few there are defendants few they lawyers get who fail hire the best prepare to can to present government lawyers their defenses. That hires prosecute lawyers money defendants who have the hire strongest are the widespread defend indications of the lawyers necessities, belief that in criminal courts are not charged luxuries. one with crime counsel may not be deemed fundamental and fair essential to trials countries, very begin- some but it is in ours. From the ning, state our and national constitutions and laws have great emphasis procedural laid on safe- substantive guards designed impartial to assure fair trials tri- before every which equal bunals in defendant stands before the poor law. noble be This ideal cannot realized if man the charged with crime has to face his without accusers lawyer (parenthesis, citations, [Id. him. to assist at 343-344 added).] omitted; quotation ellipsis marks second 2. THE TO THE RIGHT EFFECTIVE ASSISTANCE OF COUNSEL The constitutional to right encompasses counsel the right to the assistance of counsel. Strickland v effective 686; 668, 2052; 466 US 104 S L Washington, Ct 80 Ed 2d (1984). 674 Cronic, United v States US S L 654-656; 2039; (1984), 104 Ct Ed 2d United Supreme States explained: Court special right The value of the to the assistance counsel “why

explains long recognized right [i]t has been is the counsel the effective assistance of coun- suggests sel.” text of the Sixth Amendment itself Opinion of the Court merely provision requires not much. The Amendment accused, “Assistance,” but which is to be of counsel to Thus, purpose “the core of the counsel “for his defence.” trial, guarantee ‘Assistance’ at when was assure the intricacies of the law accused was confronted with both advocacy public prosecutor.” of the If no actual and the provided, “defence” is “Assistance” “for” accused’s guarantee To then the constitutional has been violated. appointment convert the of counsel hold otherwise “could nothing compliance into a sham and more than a formed requirement the Constitution’s that an accused be given guaran- the assistance of counsel. The Constitution’s by tee of assistance of counsel cannot be satisfied mere appointment.” formal guarantee

The substance of the Constitution’s effective counsel is illuminated reference to assistance of “[T]ruth,” said, underlying purpose. its Lord Eldon “is best by powerful discovered on statements both sides of question.” strength unique This dictum describes the system justice. very premise our of criminal “The of our adversary system justice partisan of criminal is that advo- cacy promote on both sides of a case will best the ultimate objective guilty go that the be convicted and the innocent “very premise” gives free.” It is that that underlies and meaning to the Sixth Amendment. It “is meant to assure adversary process.” fairness in the criminal Unless counsel, accused receives the effective assistance of “a injustice serious risk of [Citations infects the trial itself.” omitted.] 3. THE RIGHT TO COUNSEL AT CRITICAL STAGES

OF THE INCLUDING PRETRIAL STAGES PROCEEDINGS, “The Sixth Amendment to coun- safeguards right sel at all critical of the stages process criminal for an Williams, accused who faces incarceration.” at supra A641. critical is stage proceedings any stage 284 Mich Opinion of Court of may

where absence counsel harm a defendant’s right to a fair trial and “applies preliminary proceedings rights may where be sacrificed or defenses lost.” v People Green, 392, 399; 260 Mich App (2004), 677 NW2d 363 overruled on other grounds by v People Anstey, 476 Mich (2006). 436, 447 n 9 stages include, Critical in part, the examination, preliminary Alabama, Coleman v 1, 399 US 9; 1999; 90 S Ct 26 L Ed (1970), 2d 387 a pretrial lineup, Frazier, People 20; v 478 Mich n 733 NW2d 713 (2007), and the entry plea, Pubrat, of a People (1996). 589, 593-594; 548 NW2d 595 Moulton, Maine v 159, 170; 477; 474 US 106 S L (1985), Ct 88 Ed 2d 481 United States Supreme Court observed: recognized

[T]he Court has... the assistance of counsel participation trial; cannot be limited to deprive in a person during period prior counsel may to trial be damaging more during than denial counsel the trial itself. Recognizing right to the assistance of counsel is shaped by counsel, the need for the assistance of we have right earlier, found that the stages attaches at “critical” in the justice process criminal might “where the results well settle the accused’s fate and reduce the trial itself to a mere “[wjhatever formality.” And, may mean, else it granted by counsel the Sixth and Fourteenth Amendments person means least that a help lawyer entitled to the of a judicial at or after the proceedings time that have been against because, initiated him----” This is after the initiation “ adversary proceedings, government criminal ‘the has prosecute, committed itself to positions and... the adverse government and defendant have solidified. It is then that a defendant prosecutorial finds himself faced with the forces of organized society,and immersed in the intricacies of substan- ” procedural tive and omitted; criminal law.’ [Citations em- phasis ellipsis added.] initial together, When read the authorities cited above make abundantly clear that representation counsel, thus representation by counsel, effective is crucial 265 Duncan v

Opinion of the Court only not serving protect rights Sixth Amendment during proceedings. but also pretrial trial ASSISTANCE OF COUNSEL CLAIMS 4. INEFFECTIVE APPELLATE IN CRIMINAL PROCEEDINGS appeals, In the context of criminal cases and our Carbin, 590, Court in v 463 Mich Supreme People (2001), 599-600; 623 NW2d 884 enunciated the basic principles involving and well-established claim of ineffective assistance of counsel: justify

To under either the federal or reversal state constitutions, satisfy defendant must convicted two- part Supreme test articulated the United States Court 668; 2052; Washington, in Strickland v 466 US 104 S Ct (1984). Pickens, People L Ed 2d 674 See v 446 Mich (1994). 302-303; “First, 521 NW2d 797 the defendant must performance show that counsel’s was deficient. This re- quires showing that counsel made errors so serious that performing counsel guaranteed by was not as the ‘counsel’ Strickland, supra the Sixth Amendment.” at 687. In so doing, strong the defendant must presumption overcome a performance that counsel’s constituted sound trial strat- “Second, egy.Id. at 690. the defendant must show that the performance prejudiced deficient the defense.” Id. at 687. prejudice, To demonstrate the defendant must show the probability that, existence of a reasonable but for counsel’s error, proceeding the result of the would have been differ- ent. “A probability probability Id. at 694. reasonable is a sufficient to undermine confidence the outcome.” Id. Because demonstrating the defendant bears the burden of performance prejudice, both deficient the defendant necessarily establishing bears the burden of the factual predicate 1, 6; his People Hoag, claim. See v 460 Mich (1999). 594 NW2d 57 Counsel’s performance is deemed deficient or ineffec- “representation tive when the an objective [falls] below Strickland, 688; standard of reasonableness.” supra at 284 MICH 246 Opinion of the Court Toma, 281, 302; People NW2d (2000). test, Carbin, Strickland cited in two-part stage addressing justiciability takes center claims, vigorously argue appli- where defendants for its cation in seeking declaratory prospec- this civil suit injunctive tive relief. In our justiciability analysis, we explore preju- will also circumstances which the prong dice of the Strickland test is inapplicable.

C. DISCUSSION 1. GOVERNMENTAL IMMUNITY argue governmental immunity Defendants bars plaintiffs’ against “tort” claims the state because they do not come an exception within to the broad grant 691.1407(1). immunity by afforded MCL Defendants also contend that absolute immunity bars plaintiffs’ 691.1407(5). against claims the Governor under MCL The trial court ruled that governmental immunity is not available a state court action alleging constitu- tional violations. 2.116(C)(7),

Under MCR summary disposition favor of a defendant is proper when the claim is “barred because of. . . immunity granted by Co, law . . . .” See Odom v Wayne 459, 466; 482 Mich (2008). NW2d 217 The moving party may affi- submit davits, admissions, depositions, or other documentary evidence in support of motion if substantively admissible. Id. The contents complaint must be as true accepted unless contradicted the documen- tary evidence. Id.

a. THE STATE The governmental (GTLA), tort act liability MCL 691.1401 provides et a broad seq., grant immunity Michigan Opinion of the Court liability” governmental agencies, from “tort absent statutory they of a applicability exception,1 when discharge in the or exercise of a engaged govern- 691.1407(1); Maskery mental function. MCL v Univ of Michigan Regents, 613; Bd 664 NW2d (On (2003); Ross v Consumers Power Co Rehear- (1984). 567, 595; ing), 420 Mich 363 NW2d 641 state of is a “governmental agency” entitled immunity granted under the GTLA. MCL 691.1401(c) (d). activity An expressly impliedly by constitution, authorized or mandated stat- ute, charter, ordinance, local or other law constitutes a governmental function for purposes of GTLA. 691.1401(f). 613-614, Maskery, supra at MCL quoting This gives Court the term “governmental function” a broad interpretation, statutory but the exceptions must narrowly be Maskery, construed. at supra 614. The “immunity protects the state not from only liability, but great also from the public expense having to contest Odom, trial.” supra party 478. The that seeks to impose liability on a governmental entity has the bur- den of pleading avoidance of governmental immunity. (2002). Detroit, Mack v 186, 198; 467 Mich 649 47 NW2d Here, there can be no reasonable dispute that the engaged governmental state was in a function when it delegated representation the of indigent defendants to the Moreover, various counties.2 it is the state that is 1 statutory exceptions governmental immunity consist of the highway 691.1402, exception, proprietary-function exception, MCL the 691.1413, 691.1407(4), governmental-hospital exception, MCL the MCL 691.1405, exception, public-building the excep motor-vehicle MCL the tion, 691.1406, sewage-disposal-system-event exception, MCL and the 691.1417(2). Odom, supra MCL n 478 62. provides: MCL 775.16 person charged having felony ap- When a committed a counsel,

pears magistrate before a without and who has not waived App 246 284 Mich Opinion the Court mandated to ensure that defen ultimately right their constitutional to counsel. provided dants Williams, Gideon, at 641. supra; supra that nontort Supreme Our Court has “observed by immunity causes of action are not barred aif such a plaintiff successfully pleads and establishes cause of action.” Bor g-Warner Acceptance Corp Dep’t (1989) (em State, 16, 19; 444 433 Mich NW2d 786 original). Further, Smith v Pub phasis Dep’t of (1987), Health, 540, 544; 428 Mich 410 NW2d 749 aff 'd Police, 491 Michigan sub nom Will v State US Dep’t of (1989), Michigan Supreme the Court held: alleged state, by [] it is that the Where virtue custom policy, right by Michigan has violated a conferred the Constitution, governmental immunity is not available in a state court action. damages against arising A for

[] claim state from may violation state of Constitution be recognized appropriate cases. Powell, 329, 336;

See also Jones v 612 NW2d (2000). policies litigation. State are at the forefront of this “ immunity ‘Governmental is not available in a state charge upon person appears, examination on the which the person shall be advised of his or her to have counsel appointed person for the If the he examination. states that or she counsel, procure magistrate notify is unable to shall the chief judge judicial of the circuit court in the district in which the of the alleged occurred, judge offense recorder’s court of the have occurred in the to have or the chief city alleged of Detroit if the offense is city Upon proper showing, of Detroit. judge appoint magistrate appoint chief attorney shall or direct the an to conduct accused’s examination and to conduct the attorney appointed by accused’s defense. The the court shall he county treasurer, entitled from to receive on the certificate of judge rendered, the chief that the services have been judge the amount compensation which the chief considers to be reasonable performed. the services Duncan v Opinion Court alleged court action where it is state has by violated a conferred the Michigan Constitu- ” Hinojosa Resources, tion.’ Natural Dep’t 263 Mich 537, 546-547; (2004), quoting NW2d 550 Bur- dette v Michigan, App 406, 408; 421 NW2d (1988). An action that establishes unconstitutional “may conduct not be except limited as provided by the Constitution because of preeminence of the Consti- tution.” Hinojosa, 546, Smith, at supra citing supra at J.). 641 (opinion by Smith, id., Justice BOYLE BOYLE, observed in her opinion concurring in part dissent- ing in part: 3.996(107) 691.1407; not, by terms,

MCL MSA does its immunity declare by for unconstitutional acts the state. Legislature The idea indirectly that our would seek to “approve” acts the state which violate the state consti- by cloaking tution statutory such behavior with immunity is too language far-fetched to infer from the of MCL 3.996(107). 691.1407; MSA would We not ascribe such a Legislature. result to our panel Burdette reiterated those sentiments from in addressing

Smith a due process challenge, further reasoning: alleged

Plaintiffs’ claim plain- that defendant violated process rights tiffs’ due 1, under § Const art 17. prima Plaintiffs have stated a [D]efendant facie claim.... immunity cannot claim plaintiff alleges where the defendant has violated its own constitution. Constitutional rights government serve to restrict rights conduct. These purpose would never serve this if the state could use governmental immunity to avoid constitutional restric- [Burdette, supra tions. 408-409.] The instant claims against the solely state based on alleged violations of the Michigan Constitution and concern policy custom and matters with respect to the representation of indigent Moreover, plain- defendants. App 246 284 Mich

Opinion of the Court liability” a “tort the state is not against tiffs’ lawsuit immu- by is not shielded Accordingly, action. the state declaratory and seeking in this suit nity granted by law state, constitutional violations. injunctive relief for claims as “constitu- however, plaintiffs’ characterizes claims money damages for and thus tional tort” claims bars the action. The state governmental immunity that actually seeking appropria- that are argues making plain- money treasury, tions or from the state damages monetary relief. money tiffs’ action one for for a seeking money damages A action violation cause of a “state rights constitutional has been coined of state Sherman, See Jones v constitutional tort action.” (2000). 611, 612; Typically, Mich 625 NW2d 391 App a governmental tort claim arises when constitutional exercising discretionary powers, violates con- employee, plaintiff. to a Reid v Michi- rights personal stitutional (2000). 621, 629; 609 NW2d 215 gan, that, above, indicated claim initially “[a] note We against arising by the state from violation damages for recog- be Michigan may the state of the Constitution Smith, 544; cases.” see appropriate supra nized Powell, Nevertheless, at 336. defendants supra also claims, inaccurately plaintiffs’ characterize where the gravamen adequacy of the lawsuit concerns the prays for defendants and for representation relief; a tort action equitable liability this is not for nor do an money damages, plaintiffs request appropria- tion Plaintiffs seek a court declaration state funds. unconstitutional, seek to practices that defendants’ practices, unconstitutional and seek enjoin continuing indi- provide the state and the Governor to compel defendants consistent with the gent representation Assuming state and federal constitutions. state as the ulti- impact would incur an unfavorable fiscal magically it does not proceedings, mate result of Duncan v Opinion of the Court case, transform the purposes GTLA, from an equitable action into a liability tort seeking action money judgment See, or monetary relief. e.g., Edelman Jordan, 651, 666-668; 415 US 1347; 94 S Ct L Ed (1974) (a 2d 662 consequence fiscal to state treasuries resulting from compliance equitable decrees, which their terms are prospective nature, an ancillary effect and does not mean that a money judg- entered). ment had been The state has cited no convinc- ing or even relevant authority making the GTLA appli- cable in equitable this Accordingly, action. the trial court properly concluded governmental immunity is not available to the state.

b. THE GOVERNOR 691.1407(5) With respect Governor, to the MCL pro- vides: judge, legislator,

A highest and the appoint- elective or government ive executive official of all levels of are im- mune liability injuries from tort persons damages to or property acting if he or she scope is within the or of his judicial, legislative, her authority. [Emphasis executive added.]

“The executive power is vested in the governor,” 1963, 5, 1;§ Const art therefore, there can be no dispute that the Governor is the highest executive official in state government. Additionally, this lawsuit necessarily relates to duties within the scope of the Governor’s authority, given executive governor that “[t]he shall take care that the be faithfully laws executed.” Const 1963, 5, § art Further, 8. in regard to the scope authority, executive this suit potentially affects issues of state funding, 5, 18, § Const art provides that governor “[t]he shall submit to legislature at a time law, fixed by a budget ensuing for the fiscal period MICH

Opinion of the Court funds, pro- detail, for all operating setting forth of the state.” and estimated revenue posed expenditures opinion in this stated earlier However, for the reasons state, liability not a tort action this is respect 691.1407(5) MCL damages. Accordingly, seeking money immunity for the Governor. no provides TO ORDER AND AUTHORITY 2. JURISDICTION RELIEF OF INJUNCTIVE VARIOUS FORMS AND THE GOVERNOR a. MANDAMUS fashion, trial cursory argue, Defendants injunctive order relief with jurisdiction lacks court issue, ruled On this the trial court to the Governor. respect from cannot immunize the Governor law and that the principles preemption federal claims under because not immune from state law claims Governor evident, the trial liability. tort As is the suit does not entail immunity governmental prin- treaded on court somewhat opinion. discussed earlier this ciples injunctive their contention that relief support Governor, only defendants cite against issue cannot Governor, 526, 532-533; Straus v 592 NW2d Court, (1999), Supreme quoting in which the case, in the stated: opinion this Court’s adopting that, times is also because a court at all “We would note jurisdiction sponte its own required question to sua (whether action, person, subject the matter of an over a afford), may we have some doubt the limits on the relief it injunctive against relief the respect propriety to the of with separation powers principles, It is clear that Governor. relief, 1963, 3, 2, mandatory injunctive preclude § Const art mandamus, similar reason- against the Governor. Whether beyond com- prohibitory injunctive relief the ing puts also judiciary appears open question that petence the to be an do note that the in this case. We need not be resolved declaratory recently recognized that Supreme Court has Duncan v Opinion the Court normally legislative relief suffice to will induce the branches, principal executive the of which members have fealty taken oaths of to the identical constitution to that 11, 1, judiciary, § taken Const art to conform requirements their actions to constitutional or confine Only declaratory them within constitutional limits. when begin relief has failed should courts even to consider additional relief in forms of these situations. need for delicacy part respect utmost judiciary, on unique Governor, recognized [by [has office of been] Court].” [Citations omitted.] this In part, relief, seek declaratory and the Straus quoted passage from makes clear the courts have the issue a authority to declaratory judgment against Governor, which should be the first course of action before even injunctive contemplating relief. Plaintiffs also seek enjoin continuing to practices or, unconstitutional otherwise, stated prohibitory injunctive relief. Such a remedy could potentially entail a cessation criminal prosecutions against indigent absent defendants constitu- tional compliance Straus the right with to counsel. indi- cated that resolving Court was not the question whether the judiciary constrained ordering pro- from hibitory injunctive relief against and, the Governor given not present any defendants do additional arguments on issue, we decline to find that the trial court lacks authority or jurisdiction enjoin to the Governor from continuing practices. unconstitutional regard to the issue of injunctive mandatory (mandamus), relief plain- tiffs do compel seek to provide Governor to defendants with representation that is consistent with the state and federal constitutions. As will be discussed later in this opinion, may we believe that there exist a basis subject the to a Governor under mandamus order Michi- gan in regard law state if constitutional violations this case reflects the existence of impediments to the ability of the judiciary cany out compliance its duties in 246 Mich 284

274 op Opinion the Court indigent defendants relative to principles constitutional However, need we courtrooms. state being prosecuted because the Governor question answer the specifically not viola- federal constitutional alleged for being is also sued mandatory allows for 42 which under USC tions did that it Straus reveals relief.3A review of injunctive alleging 42 USC 1983 under brought a claim not involve 42 USC right. a federal constitutional a violation of part: 1983 relevant provides, statute, ordinance, any who, Every person under color of Territory custom, any or usage, of State or regulation, or Columbia, subjects, causes to be sub- the District person or other jected, any the United States citizen of any deprivation jurisdiction thereof to within the immunities secured the Constitu- rights, privileges, or injured laws, party in an be liable to the tion and shall law, proper proceeding for equity, at suit in or other action judi- redress, any brought against a except that in action an act or omission taken such cial officer’s officer for injunctive granted not be judicial capacity, shall relief declaratory declaratory was violated or unless a decree [Emphasis added.] relief was unavailable. in the “person” a state official is a though

Even in his or her sense, against “a suit a state official literal the official but against is not a suit capacity official office[, and,] against [a]s a suit the official’s rather is against from a suit the State itself.” such, it is no different 58, 71; Police, 491 US 109 State Michigan Dep’t Will v greater protection Michigan than does not afford “[T]he Constitution regard when it precedent to a defendant’s to counsel federal Pickens, supra of counsel.” a claim of ineffective assistance involves encompasses, request mandamus-type relief without 302. Plaintiffs’ distinction, alleged alleged federal constitutional state and both rights therefore, considering deprivations; constitutional that the federal Constitution, Michigan if there is a state parallel those under violation, violation, implicating under 42 relief there would he a federal USC 1983. Duncan v Opinion the Court (1989) (citations omitted). 2304;

S Ct L Ed 2d However, “a state official in his or her capacity, official relief, injunctive when sued for would under person be a § 1983 because actions ‘official-capacity prospective for ” Will, relief are not treated against as actions the State.’ 10, supra Graham, at 71 n v quoting Kentucky 473 US 159, 167 14; 3099; (1985), n 105 S Ct 87 L Ed 2d 114 citing 123, Ex S parte Young, 159-160; 441; 209 US 28 Ct (1908); 52 L Ed Melo, 21, 27; 714 see US also 502 Hafer (1991). 358; 112 S Ct L Ed against 116 2d 301 The suit the qualifies suit, Governor as an official-capacity 24,27, id. and the action seeks relief in form equitable of a declaratory judgment injunction, and an thereby provid- ing prospective relief. The Governor can be sued thus injunctive relief under 42 USC which makes clear that relief equitable is available for federal constitu- tional and that, violation if there any is limitation on granting relief, injunctive the limitation pertains only to judicial See Van 677; officers. Orden v US Perry, 545 125 (2005) (Texas S 2854; Ct 162 L Ed 2d 607 resident § commenced 1983 action against governor and other state officials,seeking declaratory relief injunction and an require would the removal of the Ten Command- ments capitol from the on the basis of an Establishment violation). Clause language There is no in USC 42 1983 suggesting equitable relief the form of a mandatory injunction or mandamus not against available Governor, or that there is a distinction to be made be- tween prohibitory injunctive mandatory relief and injunc- tive relief. Casey, 131, 139; Felder v 487 2302; US 108 S Ct 101

L (1988), Ed 2d 123 the United States Supreme Court action, § made clear broad reach of a 1983 stating: Section species liability 1983 creates a in favor of persons deprived rights by of their wielding federal civil those App 246 Mich

Opinion the Court authority. repeatedly emphasized, “the have state As we rights statu- objective of the Reconstruction-Era civil central constitu- is to that individuals whose federal tes ... ensure damages statutory abridged may rights recover tional Thus, provides uniquely § injunctive “a relief.” or secure remedy against upon rights incursions ... secured federal Nation,” is to be and laws of the Constitution sweep language.” “a broad as its accorded Any applicability of a state law assessment of therefore, rights litigation, must be made federal civil purpose right. This is light of the and nature federal question applicability of state-law arises so whether courts, possess litigation brought § in state which actions, jurisdiction federal- over such or in concurrent litigation, where, rights because the civil laws court federal provide thought of decision essential to fail to certain rules occasionally orderly adjudication rights, courts are upon Accordingly, held called borrow state law. we have government law immunizes conduct that a state that subject preempted, § 1983 even otherwise to suit under is rights litigation place in state where the federal civil takes court, immunity application of the law because the state congressional remedy, thwart which of course would the already provides certain immunities for state officials. omitted; original.] ellipses in [Citations constitutional, Accordingly, any (statutory, state law law) read to the Gover- or common that can be exclude act, being subjected to or compelled nor from otherwise injunction, preempted is a suit for any type to when is brought against pursu- relief the Governor equitable consti- ant to USC 1983 for violation the federal tution, regardless litigated fact that the suit is of the court. a state

b. APPROPRIATIONS FROM THE STATE TREASURY only Legislature, that the argue Defendants also court, any to the has the author- opposed trial court Duncan v op Opinion the Court ity or jurisdiction appropriate to funds from the state In treasury. support of their position, rely defendants on Governor, Musselman 503; 533 NW2d 237 (1995). Musselman, plaintiffs, current re- tired public school who of the employees were members Michigan Public Employees’ School Retirement Sys- tem, alleged that had to the state failed fund retirement being health care benefits by employees, thereby earned 9, 1963, § Const violating plaintiffs sought art 24. The “writ of ordering mandamus the appropriate official to transfer funds from the school fund aid to the reserve Musselman, for supra at 521. Our health benefits.” Supreme Court held that the state was constitutionally “obligated prefund to health care 9, benefits under art § Musselman, 24.” supra Court, at 524. The however, mandamus, denied ruling that it authority had “no to order the Governor or the Legislature to appropriate Id. The Musselman Court reasoned: funds[.]” Given that the have to failed show that there pool is a of funds available be transferred to the reserve benefits, requested necessarily health relief involves treasury. funds from the only state defendant with authority to appropriate the treasury funds from Legislature. money paid “No shall be out of the state treasury except pursuance appropriations by made 9, § law.” Const art 17. context,

In this this Court power require lacks the Legislature to appropriate funds. This was the understand- ing 9, 24,§ art drafters of who likewise did not contemplate prefunding requirement could be They expected enforced court. decision comply ultimately rested Legislature, whom people [Musselman, supra trust[.] would have to 522.][4] 4 Supreme subsequently granted rehearing Court and issued (On Rehearing), v Musselman Governor 574, 576-577; 450 Mich 545 (1996), majority NW2d 346 wherein the former of four in the case lost Mich 246 284 Opinion of the Court a problematic would be equally

It to us that appears legislation or enactment of directing order the court or of executive rules, or issuance administrative any to constitu- orders, in order correct administrative indigent de- court-appointed, in the tional deficiencies (“The 1963, 4, § 1 systems. legisla- See art fense Const Michigan is vested in a senate of the State of power tive 1963, 5, Const art representatives.”); a of and house (“The by to message communicate governor § 17 shall may session and legislature beginning at the each legislature information as present to the at other times measures he state recommend to affairs .5 desirable.) necessary considers or seek a declaration that Here, plaintiffs court again, unconstitutional, to en- are seek practices defendants’ to and seek join continuing practices, unconstitutional rep- to defendants compel provide defendants con- with the state and federal resentation consistent relief, not prayer In the stitutions. transfer state seeking appropriation an expressly funds, demanding leg- enactment of expressly nor plaintiffs allege that the acknowledge islation. We have been caused systemic constitutional deficiencies lack of fiscal and funding state inadequate Brickley, unnecessary it to construe Chief Justice who decided was 24, 1963, 9, ultimately § mandamus not Const art because could issue Thus, no appropriation or transfer of while there was order funds. 1963, 24, 9, longer majority regarding interpretation § a art of Const rejecting remedy. majority a mandamus See there still remained Bd, 642, Employees’ 472 Mich v Pub School Retirement Studier (2005) 650-659; (discussing the Musselman cases 698 NW2d 9, 1963, resolving open regarding of Const art issue construction §24). funding arguments be a strong can be made that state would “While system financing, Legislature for the more court it is desirable system.” adopt Grand Traverse Co determine whether such (1995). Michigan, 472; 538 NW2d 279 Opinion of the Court that, recognize further oversight. administrative We would prevail, funding legislation should plaintiffs be the needed to be taken seemingly appear to measures However, are not to correct constitutional violations. we the trial court has to rule on the issue whether prepared or authority appropriations, legislation, to order It at this comparable steps. unnecessary do so juncture proceedings. an dispute declaratory

There is no that relief is trial remedy falling juris- available within the court’s Straus, supra authority. diction and As indicated “ ‘[o]nly declaratory when relief has failed should begin the courts even to consider additional forms of ” (Citation omitted.) respect With to the state relief[.]’ claims, only constitutional which are the claims against state, should brought prevail, initially relief alone needs to be contem- declaratory And if the state takes corrective action without plated. court, injunc- further need for intervention the trial constitutionally tive relief and the to issue authority questionable longer forms of such relief would no be at Additionally, place issue. while USC 1983 does not attempt through limit on a court to first resolution alone, it is declaratory judgment possible upon entry of a the Governor would declaratory judgment, take constitutional comply corrective measures to relief requirements.6 Accordingly, injunctive issue may to fruition. never come

Furthermore, argue defendants do not that the trial authority jurisdiction court lacks or them from enjoin therefore, there continuing practices; unconstitutional potential compliance is the that constitutional could relief, prohibitory injunctive occur issuance of through before, necessarily declaratory judgment The trial enter a court would with, injunctive contemporaneously entry granting an order or relief. 284 MICH op Opinion the Court reaching questions concerning mandatory without in- junctive compelling relief or mandamus or defendants by way appropriations legislation. to act Additionally, argument other than defendants’ injunctive against Governor, relief can never issue argument rejected opinion, which we earlier in this judiciary defendants do not contend that the lacks the authority jurisdiction compelling, or to enter an order general compliance terms, in broad and with constitu- argument merely tional mandates. Defendants’ decries appropriation court in intervention the of funds from treasury. entry However, the state the of an order simply compelling pro- the state and the Governor to indigent representation vide defendants consistent with necessarily the state and federal constitutions does not being required by mean that the state is appropriate the court to compliance. funds to come into Theoreti- cally, may there be creative alternatives available to satisfy concerning constitutional mandates counsel. only speculate regarding

We can at this time ultimately measures needed to be taken in order to compliance come into with the state and federal consti- assuming plaintiffs Only tutions, establish their case.7 litigation inevitably The superimpose dissent indicates that this will system representation statewide and state-funded for the is, however, certainty occur, criminal defendants. There no that this will may goal plaintiffs. jumps even if it be a The dissent ahead to an remedy, proven, envisioned where have not nor even tried their yet, legislative congressional issue, case where action on the which has late, conceivably received much attention as of could occur before and regardless litigation, of this and where other avenues of constitutional compliance explored, given stage proceedings. have not been Ultimately, again assuming plaintiffs successful, and are constitutional compliance any variety could in come or combination of forms. Our overriding constitutionality, by path concern is not the chosen which compliance constitutional is achieved. Duncan v Opinion op the Court other are exhausted and possibilities explored, when all discussed, do there already regarding arise issues appropriations legislation, separation pow- ers, jurisdiction and the full extent of court and author- Therefore, ity. we find no need at this time for this conclusively address the That questions posed. Court said, being nothing we wish to make clear that this foreclosing entry should be read as of an order opinion granting type vigorously challenged by of relief so First, defendants. We take that stand for two reasons. Musselman, unlike federal constitutional violations alleged brought pursuant here and to USC 1983. law, in mind keeping the context of federal action, § broad reach of a the following we note from the United States Court’s deci- passage Supreme Edelman, sion in supra 667-668: law, As in most areas of difference between the type of relief barred the Eleventh Amendment and that permitted parte Young many under Ex will not in instances day night. injunction be that between issued Ex totally parte Young was not without effect on the State’s revenues, Attorney since the state law which the General enjoined enforcing provided was from substantial mon- etary penalties against railroads which did not conform to provisions. its Later cases from this Court have authorized equitable probably greater impact relief which has had on parte Young. state treasuries than did in Ex that awarded Richardson, 1848; [91 Graham v. 403 U.S. 365 S Ct 29 L (1971), Pennsylvania 534] Ed 2d Arizona and welfare prohibited denying officials were from welfare benefits to qualified recipients Goldberg otherwise who were aliens. In 1011; (1970), Kelly, v. 397 U.S. S L [90 Ct 25 Ed 2d City enjoined York New welfare officials were from follow- ing procedures New York State which authorized the paid recipients termination of benefits to welfare without prior hearing. consequences But the to state treasuries fiscal necessary compliance in these cases were the result of App 246 Opinion of the Court prospective were in nature. decrees which their terms officials, shape in order to their official conduct to the State decrees, likely more have to mandate of the Court’s would treasury they spend money from the state than if had been pursue previous left free to their course of conduct. Such an ancillary treasury permissible effect on the state is consequence principle often an announced inevitable parte Young, [Emphasis supra. added.] in Ex accepting outright Our second reason for not defen- arguments dants’ is the Supreme Court’s Co, decision 46th Circuit Trial Court v Crawford (2006). 131; Mich 719 NW2d 553 The case involved “a legislative conflict between the branch’s exercise tax, ‘legislative power’ appropriate to and to and the judicial branch’s inherent to sufficient power compel appropriations judiciary to allow the to out carry its essential judicial functions.” Id. at 134. The plaintiff sought trial court to compel appropriate “counties to funding pension for the enhanced and retiree health plans necessary care it deem[ed] to recruit and retain staff to allow it adequate carry out its essential judicial functions.” Id.

The Supreme judiciary Court indicated that the has extraordinary power and inherent fund- compel ing, power which is derived from the separation of set forth in powers through articles 6 and article 2,§ of the 1963 Michigan Constitution. 46th Circuit Court, Trial at 140-141. supra explained: The Court implicit separation powers

[J]ust as it is in the government empowered carry each branch of out the entirety powers, only pow- of its constitutional these ers, it implicit is also that each branch must be allowed adequate carry powers. Although resources to out its through appropriations allocation resources taxing legislative power, authorities lies heart branch, belongs legislative and thus to the in those rare legislature’s instances in which the allocation resources of Michigan Duncan v Opinion of the Court judicial impacts ability carry the branch to out its the of responsibilities, exclusively constitutional what is otherwise extent, becomes, power part part legislative to that of judicial power.... of carry judicial for the branch to out its consti- order 1963, 3, by responsibilities tutional as envisioned Const art totally legislative judiciary § the cannot be beholden to regarding budgets. people determinations its While the of right appropriations taxing this state have the to being representatives decisions made their elected in the branch, legislative they right judiciary also have the to a sufficiently carry that is to out its constitutional funded responsibilities. Thus, judiciary’s power” compel appro- “inherent priations carry to enable it to out its constitutional sufficient responsibilities separation powers is a function of of provided for in the Constitution. The “inherent power” separation exception does not an to the constitute rather, powers; integral separation powers it is to the exceptional judiciary’s itself. What is about the “inherent power” is its distinctiveness from more traditional exer- judicial power, involving cises of the as it does determina- directly implicate appropriations power. tions that However, distinctive, in order to accommodate this extraordinary, judicial power primacy with the normal legislative determining appropria- branch in levels of tions, power” always sharply the “inherent has been cir- power” contemplates only cumscribed. The “inherent power, impasse when an legislative has arisen between the branches, judicial appropriation to determine levels of that are necessary” judiciary “reasonable and enable carry However, responsibilities. out its constitutional appropriation required levels of optimally that are for the judiciary always legisla- remain determinations within the power. Court, supra [46th tive Circuit Trial at 142-144 (emphasis original).] and in added If indeed systemic there exist constitutional deficien- regard cies in to the right to counsel and the to the counsel, effective assistance it certainly arguable MICHAPP 246 Opinion of the Court that 46th Circuit Trial Court lends authority for a court funding to order defendants to at a level that is provide constitutionally satisfactory. The state Michigan has under Gideon obligation indigent an defen- provide counsel, dants with and the “state” is court-appointed branches, comprised including of three the judiciary. 3, § 2. it Ultimately, judiciary, Const art is the on basis, daily that is integrally ensuring involved with that, forward, prosecutions before defen- go counsel, provided dants are without which court could not carry responsibilities. out its constitutional Musselman did not entail the constitutional implica- here, tions that arise which include the ability of judicial branch to carry out its functions in a constitu- tionally sound manner. sum, we reiterate that we decline at this time to

define the full extent of the trial equitable court’s authority jurisdiction and beyond recognized and accepted earlier in opinion.8 this 3. JURISDICTION: COURT OF CLAIMS THE VERSUS CIRCUIT COURT

Defendants contend that the Court of Claims has jurisdiction exclusive over this case. The trial court determined that had defendants relied on cases involv- ing tort claims for money damages in making this jurisdictional argument and, because declaratory available, We have ruled that relief is and we have ruled injunctive available, prohibitory assuming relief is establishment of case, plaintiffs’ being by requested plaintiffs. both remedies It is true that respect mandatory injunctive relief; we have not set boundaries however, already indicated, Straus dictates that restraint be exercised as declaratory if accomplish compli and until relief fails to constitutional Moreover, parameters ance. our decision not to set relative to mandatory injunctive action, relief cannot serve as basis to dismiss the given that other relief is available. Duncan v Opinion of the Court equitable, that is purely relief seeking prospective in the Court of Claims. belong case did not part: provides pertinent MCL 600.6419 (1) 600.6419a] [MCL Except provided [MCL and 600.6440], claims, jurisdiction court of as con- chapter, exclusive.... The upon ferred it this shall be jurisdiction: power and court has (a) demands, To hear and determine all claims delicto, liquidated unliquidated, ex ex contractu and commissions, any departments, against the of its state institutions, arms, hoards, agencies. or (4) chapter deprive This shall not the circuit court of jurisdiction proceedings this over... for declara- state relief, tory equitable any against or other actions state agencies upon in based the statutes of this state such case provided, expressly jurisdiction made and which confer upon thereof the circuit court....

To MCL it be read interpret correctly, 600.6419 must 600.6419a, MCL in conjunction provides, which full: powers jurisdiction

In addition to the conferred 6419, upon by the court of claims section the court of jurisdiction any claims has concurrent demand for equitable any declaratory judgment relief and demand for a ancillary pursuant when to a claim filed to section 6419. jurisdiction by conferred this section is not intended to jurisdiction he exclusive of of the circuit court over declaratory equitable demands for relief conferred 600.605], [MCL In Parkwood Ltd Dividend Ass’n v State Housing Auth, 763, 775; Dev Housing 468 Mich 664 NW2d 185 (2003), Supreme provisions our Court construed these and held: App 246 Opinion op the Court

Today pursuant plain language we hold that to the 6419(l)(a), § jurisdiction the Court of Claims has exclusive complaints solely over based on contract or tort that seek declaratory against any agency. relief the state or state We any contrary prior disavow statements found our case 6419(l)(a) seemingly interpreted grant- § law that have ing jurisdiction money the Court of Claims over claims damages only.

As we observed opinion, earlier this plaintiffs’ tort, complaint not based on and it is indisputable it is not based on contract. The Parkwood Court 600.6419(4) interpreted MCL “as maintaining juris- diction of the circuit court declaratory over those claims against the state that not do involve contract or tort.” added). Parkwood, at 774 supra (emphasis The Court further stated: jurisdiction

This of the circuit court is concurrent with jurisdiction of the Court of Claims over such claims in 6419a, is, § the circumstances set out in see n 7. That when declaratory ancillary such a action is to another claim jurisdiction within the Court of Claims exclusive under 6419, § the circuit court and the Court of Claims have jurisdiction declaratory concurrent over the action. [Park wood, supra 10.] at 774 n Parkwood,

Footnote 7 in supra referenced in the preceding quotation, provides: § having

We construe the enactment of 6419a as added jurisdiction by clarifying to this that the Court of Claims jurisdiction also has declaratory equitable over other claims, specifically,those that relate neither to contract nor tort —over which the circuit court would otherwise have jurisdiction exclusive ancillary those claims are to a —when jurisdiction claim within the court’s exclusive under [Emphasis original.] § 6419.

Thus, Claims, the Court of having while exclusive jurisdiction over based complaints on contract or tort Duncan v op Opinion the Court state, also against declaratory relief solely that seek complaints seeking over jurisdiction has concurrent or not based on tort relief declaratory equitable tort claim. Because ancillary if to a contract or contract here, the claim no contract or tort whatsoever there is nor concurrent neither exclusive of Claims has Court by ruling err that trial court did not jurisdiction. The of Claims. belong does not the Court the instant case THE 4. PROPER PARTIES TO LITIGATION the action should have been argue Defendants that admin- judiciary filed and the counties against The trial indigent systems. criminal defense ister that even defendants have essen- though court found their duties to the coun- tially delegated constitutional ties, ultimately it does relieve defendants of their not responsibilities. constitutional 775.16, judge circuit court’s chief Under MCL indigent for responsible procuring representation county obligated pay defendants and treasurers are to attorneys. reasonable In re compensation appointed Court, 443 Wayne Recorder’s Court Bar Ass’n v Circuit (1993). However, 110, 122; it Mich 503 NW2d 885 would statutory “that purpose be erroneous to assume right to reasonable com- underlying assigned counsels’ indigent was to assure that criminal defen- pensation dants received effective assistance of counsel.” Id. at rea- statutory right 123. counsel had a “Appointed provided for services to criminal compensation sonable criminal de- long indigent defendants before otherwise, statutory ap- had a right, fendants counsel.” Id. at 123-124. pointed Judge, In Frederick v Isle Co Circuit Presque 1, 15; (1991), our Court Supreme Mich 476 NW2d Michigan’s one court of part stated all courts op Opinion the Court justice 6, under 1; however, § Const art “the Legislature power retains over county may delegate to the governments local certain powers,” which it did enacting statute that directs certain actions of chief judges county treasurers, MCL Thus, 775.16. the counties do not any have independent obligation, constitutional apart state, from the to pay for the representation Rather, defendants. their obligations solely arise out of and, state statute indicated in In re Court, Recorder’s supra 123-124, purpose of the statute was not to secure the constitutional right to counsel. The counties could be sued for failure comply with MCL 775.16; however, that is not the suit, basis or thrust of the instant nor do defendants cite any joinder rules or law requiring plaintiffs to include the counties as parties. Indeed, defendants themselves have sought not join parties counties as to the suit under rules, the court MCR 2.204 to 2.206. Regardless, agree we with the trial that, court’s assessment though even the counties have been given responsibility for the operation and funding of trial through courts Legislature’s delegation powers, including payment of court-appointed counsel indigent defendants, it does not relieve defendants of their constitutional duties under Gideon. Even were we to assume that the counties are necessary parties, it does not form a basis to dismiss against the suit defendants. respect

With to the judiciary, a circuit court’s chief judge plays the main role in obtaining legal services for indigent defendants, as reflected in MCL 775.16. Addi- tionally, 8.123(B), MCR which applies courts,9 to all trial provides that the courts “must adopt local adminis- trative order that describes the court’s procedures for 8.123(A). MCR Duncan v Opinion of the Court who counsel compensating selecting, appointing, An must in that court.” order indigent parties represent for Court Administrator to the State be submitted ap- must Court Administrator review, and the State integ- the protect will provisions the “if its prove plan 8.123(C). Moreover, the MCR the rity judiciary.” government. state See of course a branch of judiciary is 457, 473; Michigan, Mich 538 Grand Traverse Co (1995) (“courts regarded been always have NW2d funding). county government” despite of state part or courts in the three Accordingly, judiciary as defendants this could have been named counties However, cite no rules again, joinder defendants action. to include the courts required plaintiffs or laws that And, suit; plaintiffs. of choice for it was a matter are not somehow relieved again, once defendants entitled to their constitutional duties and dismissal if or should have been sued. even the courts were AND STATEMENT OF A CLAIM

5. JUSTICIABILITY RELIEF FOR DECLARATORY AND INJUNCTIVE standing that lack and argue plaintiffs Defendants ripe adjudication are not for because that their claims remote, ineffectiveness claims are too preconviction and abstract to warrant the issuance speculative, injunctive relief. Defendants also con- declaratory failed to state a claim on which relief plaintiffs tend that an considering they adequate be that have may granted, ap- form of individual criminal remedy at law on Strickland and its rely chiefly Defendants peals. assistance test relative to claims of ineffective two-part posit that the need to show of counsel. Defendants harm, necessarily justiciability, relative to injury of counsel establishing performance deficient equates of an ineffective satisfying prejudice prong in criminal applicable ap- claim typically assistance Opinion op the Court peals, prejudice, which and therefore justiciable harm, only can be based on the rendering of an unreliable verdict, compromising to a fair trial. Precon- ineffectiveness, alone, viction standing insuf- simply ficient to establish a case. Stated differently, defendants assert that a Sixth Amendment violation does not occur until there is a deficient performance by counsel and prejudice arising out of an unfair Therefore, trial. in the context of this claiming civil suit a Sixth Amendment infringement, injury or harm needed to make the justiciable case requires satisfaction of the same two elements, and that has not been shown.

The trial court found had standing their claims were ripe adjudication, rejecting the argument that convictions or the complete denial of counsel were necessary litigate the case. With respect Strickland, to the court indicated that it was unsure whether Strickland had any application plaintiffs’ to pretrial claims of inadequate representation; however, the court was of the opinion that it would not have to delve into the circumstances of each particular criminal Thus, case. the trial court concluded that plaintiffs had stated a claim on which relief could granted. be

a. GENERALLY JUSTICIABILITY Both the state and federal constitutions only confer “judicial power” courts, Const, on the III, 1,§ US art 1963, 2,§ Const art and the United States Constitution expressly provides that judicial power is limited controversies, to cases and Const, US III, art § 2. Michigan Chiropractic, supra at 369. In order to prevent the judiciary from usurping power of coor- dinate government, branches of Supreme our Court and the federal courts have developed justiciability doc- trines to ensure that lawsuits filed in the courts are Michigan Duncan v Opinion of the Court action, and these “include the judicial appropriate and mootness.” Id. at standing, ripeness, doctrines of standing held that Federal courts have 370-371. juris- derived doctrines and constitutionally mootness are nature, the ele- satisfy that failure to given dictional doctrines the constitutional implicates ments of these only judicial power to exercise authority of the courts Id. actual cases or controversies. solely adjudicate justicia- similarly caselaw has viewed 371. “the absence of affecting judicial power, bility doctrines judiciary constitutionally powerless renders the which claim.” Id. at 372. adjudicate [a] Iron v Cleveland In Nat’l Federation Cliffs Wildlife Co, (2004), 608, 614-615; 684 NW2d 800 our “judicial explained concept Court Supreme power,” stating: traditionally by a “judicial power” been defined has the existence of a real

combination of considerations: controversy; deciding dispute, or the avoidance of or case real hypothetical questions; plaintiff who has suffered harm; genuinely parties; adverse the existence of maturity case; eschewing ripeness of a sufficient any stage litigation; of their cases that are moot at party; ability proper relief to a to issue forms effective questions non-justiciable or other political avoidance controversies; unnecessary constitutional the avoidance of opposed issues; emphasis upon proscriptive as and the making. prescriptive decision “judicial to the exercise of the respect proper With critical element is the mandate that power,” the most genuine controversy there exist a case or between parties between the is meaning dispute that parties, Water hypothetical. Michigan Citizens for real, not Inc, 479 v Nestlé Waters North America Conservation (2007). 293; 280, 737 447 Mich NW2d 292 Opinion of the Court b. STANDING PRINCIPLES On the doctrine of standing, Supreme Court Citizens, 294-295, supra quoting Nat’l 628-629, Wildlife, supra at Lee v quoting Macomb Co Bd Comm’rs, 726, Mich 739; (2001), NW2d 900 quoting Lujan v Wildlife, US Defenders of 560-561; 112 2130; S Ct L (1992), 119 Ed 2d 351 stated that the following three elements proven: must be

First, plaintiff injury must have suffered an (a) legally protected fact —an invasion of a interest which is (b) particularized, concrete and imminent, actual or conjectural hypothetical. Second, not there must he a causal injury connection between the and the conduct complained injury of—the fairly has to be traceable to the challenged defendant, action of the and not [of] the result independent action party of some third not before the Third, likely, court. it opposed must be merely speculative, injury that the will be redressed a favorable [Quotation decision. ellipses marks and omitted.]

c. RIPENESS PRINCIPLES regard With to the doctrine ripeness, it precludes the adjudication of hypothetical or contingent claims before an actual injury has sustained, been and an action is ripe not if it contingent rests on future events may not occur as anticipated or may not occur at all. Michigan Chiropractic, supra at 371 n Although 14. standing and ripeness are both justiciability doctrines pending assess claims to discern whether an actual or imminent injury fact present, they address different underlying concerns. Id. at 378-379. standing designed doctrine “is to determine whether a particular party may properly litigate the asserted claim for relief.” Id. at 379. hand, On the other ripeness doctrine “does not on focus the suitability of 293 Duncan v

Opinion of the Court timing on rather, focuses ripeness party; original). (emphasis Id. action.” d. RELIEF DECLARATORY actions, MCR declaratory judgment respect With (F) as fol- provide 2.605(A)(1), (C), respectively lows: controversy jurisdiction, its within

In a case of actual may rights and other declare the Michigan court of record declaratory party seeking a interested legal relations of an sought is or could be judgment, or not other relief whether granted. or remedy not adequate does existence of another declaratory appropriate judgment relief an

preclude a for case. necessary proper relief based on a declara-

Further maybe granted, notice and tory judgment after reasonable party rights been deter- hearing, against a whose have declaratory judgment. mined found in MCR controversy” requirement The “actual “ 2.605(A)(1) summary justi- been described as ‘a has ” judicial relief.’ ciability necessary as the condition Consumer Dep’t Builders & Contractors Associated 117, 125; Director, Mich 693 Services 472 Industry & (2005), Hayes, Allstate Ins Co v quoting NW2d (1993). A court cannot declare 56, 66; 499 NW2d 743 Mich if an issue rights parties regarding obligations not entail meaning that it does justiciable, the issue is not persons interested controversy between genuine, Uve decided, claims, which, if can adverse asserting who are Opinion of the Court Builders, existing legal affect relations. Associated supra Ins, at 66. quoting supra Allstate

e. INJUNCTIVE RELIEF relief, Finally, regard injunctive injunction an an extraordinary remedy may constitutes be issued only it, an justice requires when there is absence of an law, adequate remedy and there the danger exists of irreparable that is real and injury imminent. Pontiac Fire Fighters City Pontiac, Union Local v 376 482 of (2008). 1, 8; Mich 753 595 NW2d

f. JUSTICIABILITY FRAMEWORK In constructing the broad analytical framework for addressing the justiciability issues in connection with the particular allegations made we find plaintiffs, guidance 343; in v Casey, Lewis 518 US 116 S Ct 2174; (1996). 135 L Ed 2d In Lewis, respondents were in inmates imprisoned operated by various facilities (ADOC), Arizona Department Corrections they filed a class action on behalf all adult prisoners currently who were or will be incarcerated by the ADOC, deprivations alleging of their fundamental con- right stitutional of access to the courts. Id. at 346. The action was brought Smith, reliance on Bounds v 817, 828; 1491; US Ct 97 S 52 L 2d 72 (1977), Ed which it that was held “the fundamental constitutional right of prison access to the courts requires authorities to assist in the preparation inmates filing mean- ingful legal papers by providing prisoners with ad- equate law libraries or adequate per- assistance from sons Lewis, trained in the law.” supra See at 346. Following a three-month bench in Lewis, trial federal district court ruled in the respondents, favor of concluding respondents had constitutional Opinion of the Court meaningful, ad- courts that of access to the system ADOC’s effective, and that equate, standards. with these constitutional comply failed remedy that injunctive an district court tailored The that the ADOC would ensuring sweeping scope, was United States court access. The meaningful provide affirmed, with Circuit Ninth Appeals Court injunction. the terms of the minor related to exceptions Id. at 346-348. that, in petitioners argued granted,

On certiorari a Bounds violation, inmate needed an to establish order of a law any alleged inadequacy prison’s to show that an programs assistance caused library legal facilities or “ words, prejudice in other ‘actual injury, actual or existing litigation, such contemplated respect present deadline or to inability filing to meet a ” Id. at 348. argued The further petitioners claim.’ to find sufficient instances of the district court failed systemwide relief. Id. injury actual that would warrant Court held: Supreme respondents’ systemic agree that the success of We ability challenge dependent on their to show wide- was identify spread injury, and that the court’s failure to actual anything injury more than isolated instances of actual finding systemic invalid. renders its of a Bounds violation [Id. 349.] then Supreme proceeded

The United States Court to for its underlying reasoning rationale and provide holding: alleging requirement that an inmate a violation ultimately injury derives from

Bounds must show actual standing, principle that the doctrine of a constitutional assigned undertaking to prevents courts of law from tasks provide political It is the role of courts to branches. claimants, actions, have relief to in individual or class who 284 MICH Opinion of the Court suffered, suffer, harm; imminently or will actual it is not courts, political branches, the role of but that of the shape government the institutions of in such fashion as to comply with the laws and the Constitution. In the context present remedy of the It for the past case: courts to or imminent official interference with individual inmates’ presentation courts; political of claims to the it is for the manage branches of State and Federal Governments to prisons in such fashion that official interference with the presentation course, of claims will not occur. Of the two briefly partially court, roles grant- coincide when ing against relief suffered, actual harm that has been or suffered, imminently that will particular be individual individuals, or class of orders the alteration of an institu- organization procedure tional or that causes the harm. But the distinction between the two roles would be obliterated if, courts, to invoke intervention of the no actual or needed, imminent merely harm were but the status of being subject governmental to a institution that was not organized managed properly. If—to take another ex- ample prison healthy from life—a inmate who had suffered deprivation no of needed medical treatment were able to claim right violation of his constitutional to medical care simply ground prison on the that the medical facilities were inadequate, the essential judge distinction between executive disappeared: would have it would have become the function adequate courts assure medical care (citations omitted).] prisons. [Id. at 349-350 We derive much from this passage. It indicates that harm, inmates do not sustain for purposes justicia- bility analysis and the right constitutional of access to courts, simply because of their status as inmates prison system and their exposure to the possibility of being denied meaningful court access because of the institution’s lack of proper management and organiza- tion. There needs to be interference with the presenta- tion of a claim court, to the just as inmates must first be ill and in need of prison medical treatment before being able to claim deprivation of a constitutional Opinion the Court of do criminal defendants analogy, here By medical care. analysis harm, justiciability for purposes not sustain assistance right to the effective constitutional and the their status as counsel, because of simply subject counsel court-appointed with defendants system presumed a with proceedings prosecutorial needs to be an instance deficiencies. There existing representation, inadequate or performance deficient objective below an stan- i.e., [falling] “representation 688; Strickland, supra dard of reasonableness.” indicate that Toma, at 302. Lewis does not supra include, right with the must besides interference harm courts, that the inmate would showing access to the been made successful court had access have been is further reflected proposition available. This subsequent respect Lewis Court’s observations actual harm: abstract, freestanding

Because Bounds did not create an assistance, right library legal to a law or an inmate cannot injury simply by establishing establish relevant actual prison’s library legal program or his law assistance subpar precise in some theoretical sense. That would be the healthy claiming analog of the inmate viola- constitutional prison infirmary. inadequacy tion because of the concerned, Insofar as the vindicated Bounds is touchstone,” “meaningful to the courts is the access go step the inmate therefore must one further and demon- shortcomings library legal alleged in the strate that the pursue legal program hindered his efforts to assistance show, might example, complaint claim. He that a he satisfy prepared for failure to some technical was dismissed which, requirement prison’s of deficiencies in the because facilities, legal assistance he could not have known. Or arguably he he had suffered actionable harm that wished to courts, bring stymied by inadequacies before the but was so library that he was unable even to file a of the law omitted).] (citation [Lewis, complaint. supra at 351 Opinion op the Court suggestion There is no in the examples two that the hypothetical inmate had to show that the dismissed or complaint unfiled would in likely have resulted a favor- able court outcome following litigation; interference, by itself, person’s with a attempt court, to access the if access is not sought frivolously, suffices to establish harm. See id. at 353.10

The Lewis Court went on find the district only court had identified two instances of actual injury, and the Court then turned to the issue whether those injuries justified two the remedy ordered the district court. Id. at 357. The Court noted remedy that the has to be “limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Id. The Court further explained that this principle just is to class actions. Id. According to applicable respect with Lewis, standing is necessary class actions named plaintiffs representing the class must allege and show injury. Id. The Lewis Court concluded that personal there awas failure to show that the constitutional violations were systemwide; therefore, granting a rem- edy beyond what necessary was to provide relief to the injured two Id. at 360. Never- inmates improper. was theless, the message that flows from Lewis is that systemwide cases where constitutional violations are proven, prospective equitable prevent relief to further proper violations is a remedy.

The absence of widespread and systemic harm in Lewis was the downfall of the case presented by the inmate respondents. Here, if plaintiffs are succeed, provide general framework, While we examine Lewis to we are examining right expressly- different constitutional and one that is provided for in the state and analysis federal constitutions. Our harm opinion additionally shaped by directly later in this addressing caselaw the same constitutional at stake here. Duncan v Opinion op the Court systemic constitu- widespread must they prove imminent, constitut- that are actual or tional violations In necessary justiciability. to establish ing the harm issues, justiciability and the we addressing appeal this that, of the lower court posture find on the basis of the solely needs to be directed at our attention proceedings, Lewis, allegations plaintiffs’ complaint. supra 357-358, Court, at Supreme quoting Lujan, supra following made the observations: general allegations complaint present in the may injury by case well have sufficed to claim named remediation, plaintiffs, standing demand and hence respect alleged inadequacies prison sys- in to various the tem, including provide adequate legal failure to assistance non-English-speaking prisoners. inmates and lockdown however, now, beyond point is irrelevant for we are That pleading stage. the they pleading requirements,

“Since are not mere but indispensable plaintiffs case, part rather an of the each standing] way supported [of element must be in the same any plaintiff other matter on which the bears the burden i.e., proof, degree of with the manner and of evidence required stages litigation. At at the successive pleading stage, general allegations injury result- factual ing may suffice, from the defendant’s conduct for on a general allegations presume motion to dismiss we necessary specific support embrace those facts that summary motion, response judgment claim. a however, longer plaintiff can no on mere rest such allegations, by but must set forth affidavit or other evi- facts, summary specific purposes dence which for judgment motion will be taken to be true. And at the final (if controverted) stage, supported those facts must be by adequately [Alteration at trial.” evidence adduced original; quotation omitted.] marks citation and internal Here, the and Strickland issues were justiciability 2.116(C)(4) (summary disposi- under MCR raised both subject-matter jurisdiction) tion for lack of and MCR 284 Mich APP Opinion op the Court 2.116(C)(8) (summary for failure to state disposition claim). 2.116(C)(4), “In MCR reviewing motion under it is to consider the proper pleadings any affidavits documentary or other evidence submitted the parties if genuine to determine there is a issue of material Treasury, 457, 459; fact.” Toaz v 280 Mich Dep’t App (2008); 760 NW2d 325 see also Cork v Applebee’s of Inc, 311, Michigan, 315; 239 Mich NW2d 62 (2000) (Under 2.116[C][4], MCR “this Court must de- pleadings termine whether demonstrate that law, defendant was entitled to judgment as a matter of or whether the affidavits and other proofs show that fact.”). there no genuine was issue of material MCR 2.116(C)(8) provides for summary disposition where opposing party “[t]he has failed to state a claim on granted.” which relief can be A motion for summary 2.116(C)(8) disposition under MCR legal tests the suf- ficiency Henderson, of a complaint. Beaudrie 465 Mich (2001). 124, 129; 631 NW2d 308 The trial may court only consider the pleadings rendering its decision. Id. All factual allegations pleadings must accepted be as true. Dolan v Continental Airlines Ex /Continental (1997). press, 380-381; 563 NW2d 23 opposed Lewis, As to the circumstances in we are addressing matters of justiciability very early stage at a in the proceedings and not in the context completed trial or a proceedings summary disposition motion the involving documentary submission of evidence. The lower court record reveals that defendants’ justiciability-related arguments were set forth without reliance on documentary evidence. And the argument plaintiffs that failed declaratory to state a claim for injunctive relief, only which implicated MCR 2.116(C)(8), couched defendants’ entire Strickland analysis. engage Defendants did not in an effort to show genuine an absence of a dispute factual with respect to Opinion of the Court justiciable; argu- were their plaintiffs’ claims whether in and attacked the purely legal ment was nature though the de- alleged inadequacy pleadings. Even evidence” “documentary fendants could have taken a 2.116(C)(4), MCR as indicated approach purposes Cork, so, they attempting in Toaz and chose not to do instead to of the case in fashion without dispose quick being process. Accordingly, buried in the the discovery addressing justiciability focus in issues under the in principles opinion articulated earlier this must be on in allegations plaintiffs’ highly complaint.11 detailed g. DEFINING JUSTICIABLE HAEM FOR OF THIS SUIT PURPOSES declaratory judgment Plaintiffs seek a and prohibi- tory mandatory injunctions, which remedies are nature, prospective an effort to stop alleged ongoing prevent constitutional violations and to future it, As violations. we view would be entitled to relief, in declaratory the context of this case and assum- causation, if ing they establishment of can show wide- spread systemic instances of actual harm. The to any prospective injunctive relief tends to concern the harm question sought whether the to he avoided imminent, future and we conclude that harm is Wildlife, supra Supreme In Nat’l our Court stated: plaintiff pleadings “general [A] must include in the factual allegations” injury will result from the defendant’s conduct. If brings summary disposition, the defendant plaintiff a motion for support allegations injury must further documentation, just support allegations as he has to the other up Finally, trial, make his claim. when the matter comes to claim, plaintiff sufficiently support including allegations must his injury, proof. to meet his burden of summary disposition, While here there was a motion for it was by parties pleadings allegations, confined and the and it was shortly filing complaint. entertained the trial court after the truly pleading-assessment The case was at a level. Mich 246 Opinion of the Court if can and widespread sys- imminent show in temic instances of actual harm that have occurred systems under the current defense past being employed by Accordingly, regardless the counties. declaratory of whether the focus is on relief or on relief, injunctive proofs require showing will a harm, systemic and instances of actual widespread The next thereby making justiciable.12 step, the action therefore, is for us to define “harm” for of this purposes action. that, in

We hold the context of this class action civil seeking prospective alleged suit relief for widespread violations, constitutional or harm injury is shown when court-appointed representation counsel’s falls below an (deficient objective standard of reasonableness perfor- mance) and results in an unreliable verdict or unfair trial, actually when a criminal defendant is or construc- tively denied the altogether assistance of counsel at a stage proceedings, critical or when counsel’s performance is deficient under circumstances which prejudice presumed typical would be criminal case. injury We further hold that or harm is shown when court-appointed performance counsel’s or representa- tion is stage deficient relative to a critical in the and, absent a proceedings showing that it affected the verdict, reliability performance the deficient results in a detriment ato criminal defendant that is relevant meaningful fashion, in some e.g., unwarranted pretrial Finally, that, detention. hold it we when that court-appointed representation shown counsel’s objective falls below an standard reasonableness with respect stage to a critical in the there proceedings, has been an invasion of a legally protected interest course, plaintiffs precluded introducing Of are not from other tendency evidence that has a to show that future harm is imminent. Duncan v Opinion of the Court additionally harm occurs. Plaintiffs must show that instances of deficient and denial of counsel performance systemic they and that are caused widespread by and in the problems court-appointed, weaknesses indigent systems by defense the three coun- employed ties, are and ultimately which attributable to caused If aggregate defendants’ constitutional failures.13 the harm reaches such a level as to be and pervasive persistent systemic), and (widespread justi- case declaratory ciable and relief is appropriate, as well as injunctive preclude relief to future harm and constitu- reasonably tional violations that can be deemed immi- in light existing aggregate nent of the of harm. See 267, 282; 2749; Milliken v 433 L Bradley, US 97 S Ct (1977) (remedies court, Ed 2d 745 ordered by while usually province judiciary, not the were proper designed pervasive where to counter and persistent system). constitutional violations within the school Plaintiffs no doubt a heavy prove will have burden to case, only establish their but for are now we concerned plaintiffs sufficiently with whether have al- leged facts. While to the supportive we leave it trial court to determine the parameters of what constitutes certification, states, In its discussion of class action the dissent majority, unwilling presume eveiy alleged I “Unlike the am deficiency every indigent in criminal defendant’s case is the result of the alleged county indigent systems.” deficiencies in the defense Post 394. agree presumption exist, We with the dissent that no should but are at a regard why making loss in dissent concludes that we are such a presumption. Throughout opinion, plaintiffs this we indicate that will performance have to establish a causal connection between the deficient indigent systems being employed. likely and the defense There will be indigent occasions in which counsel for an defendant acted below an objective reasonableness, yet performance standard of the deficient problems system; cannot be attributed to in an defense some attorneys may skills, time, lacking money, be and no amount of Again, proving resources will make a difference. their case will be a undertaking plaintiffs. monumental Opinion of the Court constitutional “systemic,” “pervasive” or

“widespread,” harm, must take into consider- or the court violations harm, giving degree any or shown ation the level performance instances of deficient weight more and instances where the resulted unreliable verdicts denied, weight being was with less to counsel performance. is mere deficient We given where there complaint allegations plaintiffs’ find that case genuine sufficient to establish the existence of a controversy parties, reflecting dispute between the real, hypothetical. that is not remand, to be taken on approach To summarize widespread must show the existence of denial systemic instances of actual or constructive coun- performance by counsel and instances of deficient sel, instances have varied and relevant levels may which all connected to defendants’ egregiousness, causally Furthermore, because the could be so proofs conduct. ranging, poor judgment wide it would reflect on our a threshold to the part respect to set numerical harm, court’s determination of whether the instances of shown, sufficiently “widespread systemic” if trial in a justify position relief. The court is better issue, subject first this of course to appellate address review. glean dissenting opinion

We from the that our col- avenue, league only judiciary- is of the that the position wise, sys- in the defense problems to address through tems the three counties is a employed in appeal standard criminal as reflected Strickland. dissent also contends that a claim of ineffective assis- deprival a conviction and of a requires tance of counsel verdict, in an unreliable even in fair trial as reflected suit, given holding this civil class action Strick- concluding it is position, land. Because of the dissent’s Duncan v Opinion of the Court that we are necessarily making finding prejudice se, per and thereby se, finding justiciability per relative to the claims of preconviction ineffectiveness. Stated differently, the dissent finds that we are assum- ing that the individual plaintiffs and class members will convicted, be that defendants’ actions caused the con- victions, that the courts addressing the criminal cases will not correct any deficiencies, constitutional and that this action will redress their injuries. We are not mak- ing any such assumptions, and we respectfully conclude that the dissent simply appreciate fails to the nature and character of this civil action brought by a fluid class of plaintiffs that seeks a declaration of unconstitution- ality and prospective, systemwide prevent relief to ongoing and future constitutional violations.

It is our view Strickland and many its progeny, which demand deficient performance by and, counsel generally speaking, prejudice in order to entitle a crimi- nal defendant to relief under Amendment, the Sixth have to be understood and viewed in context. The fundamental flaw defendants’ po- dissent’s sition on the justiciability issues is argument that the grounded on principles intended to be applied context postconviction criminal appeals that are not workable or appropriate to apply when addressing standing, ripeness, and related justiciability principles in this type of civil rights lawsuit. We cannot properly foist the framework of appellate the criminal process upon the justiciability analysis governs this civil case simply because state federal constitutional rights related to the to counsel are implicated. We reject the argument that the need to show that this case justiciable is necessarily and solely equates to showing widespread instances of deficient performance accom- panied by resulting prejudice in the form of an unreli- able verdict that compromises the right to a fair trial. 284 MICH Opinion the Court the decisive generally place entirely logical

It is a trial and on the fairness of opinion in a court emphasis a criminal addressing of a verdict when reliability the appel- assistance because alleging ineffective appeal the verdict and a that vacates seeking remedy lant is Indeed, instantly new trial. it can the case a remands for in Strickland opening paragraph from the gleaned be little relevance here: that it has proper standards requires This us to consider case contention that judging a criminal defendant’s sentence to be requires a conviction or death Constitution at the trial or sen- set aside because counsel’s assistance [Strickland, supra tencing 671.] ineffective. was relief to judice seeking prospective In the case sub a harm, judging are not whether future we prevent should be set aside because of conviction or sentence Applying two-part of counsel. ineffective assistance requirement from here as an absolute test Strickland logic, allegations widespread, defies where the concern constitutionally inadequate rep- systemic instances of in the remedy the requested resentation and where curb and halt con- form of relief seeks to prospective is essen- tinuing performance. acts of deficient What being confused with tially analysis14 harmless-error involving altogether case an justiciability analysis a to counsel must mean more remedy. right different than to an outcome. just inappropriate- A illustrates the simple hypothetical test and solely, two-part Strickland applying, ness of relief is a only that the avenue taking position indi- that, in 100 appeal. Imagine percent criminal analysis analysis governing review of the Harmless-error mirrors implicates prejudice prong claim and also of an ineffective assistance 495; 769.26; People Lukity, remedy. trial See MCL new (1999). 596 NW2d 607 y Michigan 307 Opinion of the Court gent criminal cases being by handled court-appointed counsel, it could be proven that the proceedings were continuously infected with instances of perfor- deficient by counsel, yet mance the trial verdicts were all deemed reliable, assuming all cases went to trial. As is often the case, appellate courts affirm guilty verdicts despite inadequate representation and deficient performance because there existed strong untainted evidence of guilt. scenario, our under defendants’ and the dis- sent’s reasoning, court intervention in a class action suit such as the one filed here would permitted not be on justiciability grounds despite the constitutionally egregious circumstances. This is akin to taking posi- tion defendants who are ostensibly guilty are unworthy or not deserving of counsel who will perform at or above an objective standard of reason- ableness. The holding set forth in Gideon becomes empty and meaningless under such a rationale. Wide- spread and systemic instances of deficient performance caused a poorly equipped appointed-counsel system will not cease and be cured with case-by-case exami- nation of individual criminal appeals, given that preju- dice is generally required and often not established. Even though a criminal appeal may occasionally result trial, a new it has no bearing on eradication of continuing systemic constitutional Thus, deficiencies. contrary to argument defendants’ and the dissent’s position, there is no adequate legal remedy for the harm that plaintiffs are attempting to prevent.15

Contrary to the dissent’s contention, we are not engaging any findings prejudice, standing, or assuming, purposes We are contemplation of this issue and in necessary injunctive elements relief, to merit appeal that a criminal “legal remedy.” Generally, constitutes a damages legal, “[a]ctual is a equitable, rather remedy!.]” than an Band, Anzaldua v (1998). 541; 578 NW2d 306 Mich Opinion the Court merely indicating Rather, we are se. justiciability per have been alleged, that there proven, it is if perfor- deficient instances of systemic widespread counsel, along proof and denial mance unconstitutionality can be declared causation, requisite prosecutions criminal and future ongoing in and harm imminent, be deemed defendants can indigent of remedy. right equitable to a to an giving rise thereby legally protected a an invasion of Concluding that with it some always carry will interest is imminent however, there is no caselaw of speculation; modicum showing that a suggests that which we are aware inter- permit judicial imminent harm is insufficient See, Indeed, contrary. e.g., is to the the caselaw vention. Citizens, The dissent also at 294-295. Michigan supra alleged wrong- have acknowledge that fails ful convictions. dis- defendants’ and the additionally find that

We take reality that harm can ignores the position sent’s Consistently concept with the and forms. many shapes would appeals, in criminal we employed as prejudice indi- certainly harm is injury or agree justiciable existed a reasonable a there by showing cated counsel, the result that, by for an error but probability different. See would have been proceeding of a criminal or harm also Carbin, injury at 599-600. But supra perfor- of deficient there are instances occurs when stages in the criminal counsel at critical mance defen- detrimental to an that are proceedings fashion, meaningful even relevant and dant some harm around a justiciable neatly wrapping without arises, when example, harm and trial. Such verdict detention, unnecessarily pretrial prolonged there is an motion, factually entry of dispositive a failure to file a pre- legally unacceptable or a guilty plea, unwarranted Opinion of the Court trial And delay.16 as indicated earlier in opinion, this simply being deprived of the constitutional representation effective at a critical stage the pro- ceedings, itself, in and gives rise to harm.

Further, even in criminal appeals there are situations in which the prejudice need prong not be satisfied. In Strickland, supra the United States Supreme Court stated that or “[a]ctual constructive denial of the assistance of altogether counsel legally presumed to 16 It is not difficult to conceive of scenarios which a criminal defendant suffers a attorney’s detriment or “harm” aas result of an deficient performance, any absent consideration of trial. Effective assistance of preliminary counsel at a potentially examination can result in a dismissal of prosecutor’s case, opposed being to the case’s bound over to the circuit performance court if counsel’s was instead deficient. Effective assistance of pretrial hearing counsel at a potentially can result in the exclusion of a identification, leading confession or an prosequi dismissal, to a nolle performance by counsel, whereas a deficient including a failure to even file challenging identification, motion the confession or could leave the prosecution’s strong. case intact and Effective plea assistance of counsel in negotiations potentially produce guiliy can plea a charge aon warranted much less initially brought by serious than the prosecution one that was factually unwarranted, attorney comparable but an ineffective in circum might stances plead guilty have his or her client of the more serious and overcharged offense. Effective assistance of hearing might counsel at a bail result in a being defendant’s able to trial, be released on bond before whereas hearing ineffective assistance at the same could leave the defendant sitting jail in pending a cell attorney may trial. An effective win a dismissal prosecutor’s of a by case for failure provide speedy the state to trial to a defendant, opposed involving to a situation representation, ineffective lawyer where the recognize speedy fails to trial issue. These are but a few examples in which the effective assistance of counsel would either end the case before trial and conviction or otherwise benefit a defendant in some fashion; favorable performance, hand, deficient on the other results in a detriment to the defendant. Under a scenario in pretrial which an unfiled precluded motion would taking have place, a trial from a criminal defendant still injury suffers some by having level of harm or his or her life unneces sarily put by process on hold the trial even in a situation where the proceeds acquitted. defendant to trial and is complaint Plaintiffs’ encom passes performance during pretrial stages deficiencies mentioned in this footnote. App 246 284 MICH Opinion of the Court in similarly Court observed prejudice.” in The

result a show- error exists without Cronic that constitutional “prevented is from assist- counsel ing prejudice when proceed- during stage the accused a critical ing n Cronic, concept at 25. ing.” supra Cronic, explored denial of counsel was constructive fails entirely that “if the Court stated counsel wherein adver- subject prosecution’s meaningful case has been a denial of Sixth testing, sarial then there rights adversary process Amendment that makes Id. 659. The Strick- presumptively itself unreliable.” or Court made clear that where there is actual land counsel, is so “[prejudice... denial of constructive is not likely case-by-case inquiry prejudice that into Strickland, the cost.” at 692. Strickland supra worth is counsel presumed “that when provided prejudice also by Taking an conflict of Id. is burdened actual interest.” precedent purpose into consideration this it to conclude that analyzing justiciability, is reasonable harm justiciable injury exists when there is an actual counsel, an deficient overwhelmingly denial of there is denial performance equating counsel constructive counsel, conflicting or when counsel with interests an defendant. As will be detailed represents opinion, plaintiffs’ in this contains complaint later categories allegations fit within of actual counsel, as allegations constructive denial of well as is encompass prejudice other situations which presumed. two-part

Our conclusion that test Strickland consistent litigation generally should not control this jurisdictions addressing from com- with caselaw other suits.17 parable summarizing regarding applicability position and rel our reject Strickland, following points.

evance of we note the We Duncan v Opinion of the Court Luckey on at hand is heavily topic A case cited (CA 1988). Harris, 11, Luckey F2d was an class con- action commenced “on behalf of a bilateral or who sisting indigent persons presently charged of all offenses in charged will be the future with criminal Georgia attorneys represent the courts of and of all who represent indigent Georgia or will defendants plaintiffs alleged systemic Id. at 1013. The courts[.]” of counsel respect appointment deficiencies with for defendants that resulted in deprivations rights, including various constitutional the Sixth right alleged Amendment to counsel. The deficiencies counsel, delays pressure included in the appointment attorneys guilty pleas hurry on to enter or to cases to trial, Strickland, inadequate Relying resources. on for, in the federal district court dismissed the action state a part, failure to claim. Id. 1016. The of Appeals United States Court for the Eleventh Circuit reversed, ruling: inappropriate

[The standard is Strickland] for a civil seeking prospective [S]ixth suit relief. The [A]mendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the “ineffectiveness” may rights standard nonetheless violate a defendant’s context, post-trial [S]ixth [A]mendment. under the In the may they such errors be deemed harmless because did not affect the outcome of the trial. an has Whether accused only judicial by way conclusion Strickland allows for intervention here, appeal, type pursued a criminal not the of action to address concerning issues to counsel and the effective assistance of reject requires counsel. We the conclusion that find that Strickland us to action, justiciability, purposes only of this can be established showing performances, coupled deficient unre- with convictions resulting However, respect general liable or from unfair trials. underlying espoused Strickland, principles repeated in hundreds country, e.g., performance if not thousands of cases across the deficient objective equates representation falling below an standard of reason- ableness, qualms. we have no 312 284 MICH 246 Opinion of the Court prejudiced right been denial of is an issue that relates to relief—whether the defendant is entitled to have ques- his or her conviction overturned —rather than protected tion of whether such a exists and can be prospectively.... conviction, party

Where a seeks to overturn his or her powerful granting only considerations warrant this relief prejudiced. where that defendant has been The Strickland [Cjourt following noted the factors favor of deferential scrutiny performance post-trial of a counsel’s in the con- finality, post-trial text: concerns for concern that extensive discourage cases, accepting burdens would counsel from independence and concern for the of counsel. These con- apply only prospective siderations do not when relief is sought.

Prospective designed relief is to avoid future harm. Therefore, protect rights, it can constitutional even if the rights violation of these would not affect the outcome of a (citations omitted).] [Id. trial. at 1017 fully agree We with the statements and observations made in passage, this and they thoughts mirror our voiced earlier in opinion. this rehearing Petitions for and suggestions of rehearing en banc were denied. (CA Harris, v Luckey 11, 1989), 896 F2d 479 cert den (1990). 495 US Eventually, plaintiffs’ case was dismissed on unrelated abstention grounds. Luckey v (CA Miller, 11, 1992).18 976 F2d 673 Defendants and the court, citing Younger Harris, 37; 746; The v 401 US 91 S Ct 27 L Ed (1971), 2d 669 stated that “abstention from interference in state criminal proceedings comity served the vital consideration of between the state governments.” Luckey, “Comity” and national 976 F2d at 676. is defined (as “[c]ourtesy among political nations, states, entities or courts of jurisdictions), involving esp. recognition legislative, different mutual executive, (7th ed). judicial Dictionary Luckey acts.” Black’s Law regarding possibility Court invoked abstention because of concerns that, granted plaintiffs, if relief were to the the federal court would have promulgate prosecu to force the state uniform standards related to tions and that interrupt the federal court would have to review and Opinion of the Court rejected approach here favor the twice dissent weight to a dissent- give cases. We choose not to Luckey majority analysis that failed to convince ing judge’s on the Eleventh Circuit of its correctness. judges (Ind 1996), State, App, In Platt v 664 NE2d seeking injunctive pre- relief brought a civil suit was system providing on the “that the for mised contention indigents County counsel in Marion lacks legal pretrial investigation prepara- sufficient funds for inherently tion which causes ineffective assistance at The that the plaintiffs alleged public counsel trial.” system right defender violated the fundamental the pretrial effective assistance of counsel under Sixth cited appellate prin- Amendment. Id. The court first and and then ruled: ciples from Strickland Cronic Here, enjoin County public seeks to the Marion Platt system effectively indigents defender because it denies the However, effective of a assistance counsel. violation only Sixth Amendment will arise after a defendant prejudiced by has shown he was an unfair trial. This prejudice is essential to a viable Sixth Amendment claim only upon showing and will exhibit itself proceeding Accordingly, outcome of the was unreliable. presented claims here are not reviewable under Sixth proceeding Amendment as we have no and outcome from (citation omitted).] analysis. [Id. which to base our at 363 analysis This for all cursory is flawed the reasons Moreover, expressed opinion. that we earlier in this opinion essentially respect any particu- silent with allegations harm, of deficient performance lar any it indicates that the court was not presented case, proceedings criminal and outcomes. the instant Thus, ongoing proceedings. Luckey, state 976 F2d at 678-679. it was the potential intermeddling prosecution practices of a federal court’s in state Here, ruling. served as basis abstention abstention issues have no relevance. Opinion op the Court convictions, allege wrongful trial instances plaintiffs prejudice presumed, wherein would be situations actually constructively denied. which counsel was We find wholly unpersuasive. Platt Carlson, case of Kennedy

There is also the (Minn, 1996), a chief public NW2d which defender brought Supreme suit. The Minnesota Court noted that public defender claimed “that his clients have been exposed legal to the of substandard possibility represen- added). (emphasis court, Id. at 6 tation^]” without any two-part reference whatsoever to Strickland and its test, stated: appellants

We note that cite a number decisions addressing public funding. other courts issue defense In those cases where courts have found a constitutional systemic underfunding, violation due to problems through- showed substantial evidence of serious system. By Kennedy out the comparison, defense actually has shown no evidence that his clients have been prejudiced due to ineffective assistance of counsel. To the contrary, Kennedy’s the evidence establishes that office is well-respected by judges, trial it is well-funded when com- pared offices, public attorneys to other defender and its professional have faced no claims of misconduct or mal- practice. [Id. 6-7.]

The proceeded Minnesota court then to cite several in cases which courts from jurisdictions other have adjudicated systemic matters related to constitutional arising right deficiencies out of the to effective counsel. Id. at 7-8. The court then ruled: majority

The of the cases discussed above cite evidence representation by appointed of substandard court defense counsel, generally supplied by defendant, particular a contributing Kennedy, to the court’s decision to intervene. however, attorneys provide has shown not that his substan- dard assistance of counsel to their clients... . Duncan v Opinion op the Court short, Kennedy’s of constitutional violations claims support jurisdiction hypothetical to speculative too

are Kennedy’s court did not find that in this court. The district any particular provided ineffective assistance staff had Kennedy professional client, faced nor did it find that liability his office’ssubstandard services. Nor as a result of attacking the any Kennedy’s join him in do clients by presenting statutory funding at issue here scheme inadequate particular in cases. In assistance evidence of Kennedy’s provide more substantial light of failure to clients, “injury we in fact” to himself or his evidence of an Kennedy’s granting the district court erred hold that judgment 8.] summary [Id. motion. been,

Here, who have we have a class of subjected court-appointed, be to the being, or will Berrien, systems employed defense Further, have Muskegon, and Genesee counties. we allegations representation extensive substandard Thus, given assistance of counsel. and ineffective action, Kennedy between and the instant distinctions holding Kennedy simply inapposite the ultimate support tends to our underlying and its discussion ruling. State, 192 Misc 2d Lawyers’

In New York Co Ass’n 430-431; (2002), the York 745 NYS2d 376 New rejected approach, reasoning: court Strickland test,

Prejudice, aspect is exam- as an of the Strickland generally Constitution in the ined more under State repre- meaningful context of whether defendant received (See, 1021, 1022, Hobot, People v. 84 N.Y.2d sentation. (1995) (the 1102, 1103, 675, 676 test is N.E.2d 622 N.Y.S.2d seriously compromise defen- whether counsel’s errors trial).... purpose ensure dant’s to a fair is to necessary justify that a defendant has the assistance society’s proceedings. reliance on the outcome Nota- bly, integrity New York is concerned as much with innocence, guilt judicial process as with the issue of 284 MICHAPP 246 Opinion of the Court taxing two-prong and therefore this court finds the more Strickland standard used to vacate criminal convictions inappropriate prospective in a civil action that seeks relief premised statutory monetary cap on evidence that provisions compensation currently subject rates chil- indigent dren and unacceptable adults to a severe and risk of ineffective assistance of counsel. This court further finds post-conviction provides Strickland’s reliance on review no guarantee indigent adequate that the will receive assis- tance of counsel under the New York Constitution in the Accordingly, right context of this action. because the to effective assistance of counsel in York New is much more just outcome, injury than to an threatened enough satisfy prejudice element prospec- and obtain injunctive prevent tive relief to further harm. [Citation omitted.] Quitman

In State, (Miss, Co v 2d 2005), 910 So the county itself commenced a civil action for declara- tory injunctive relief, alleging that imposing an obligation the county on to fund the representation of defendants, indigent the state Mississippi breached its provide constitutional duties to adequate represen- tation for indigent criminal defendants. Consistent with our opinion, the Mississippi Supreme Court stated: appeal], [the first this County Court held that the prospective

would be entitled to the statewide it relief seeks it system established the cost of an indigent effective if criminal defense, county’s inability to fund such a system, existing system and the provide failure of the Quitman County defendants in with the tools of adequate judge an defense. The circuit ruled that County failed to establish County these facts.... asserts “[t]he evidence at trial established each of these elements.” correctly points

The State “[c]ommon out that sense suggests Quitman County if claims there is wide- spread pervasive ineffectiveness, probative the most support evidence testimony that claim would be about Duncan v Opinion Court specific public performance instances when defenders’ objective fell below standard of reasonableness’ as ‘an [Citing professional Strickland!.] measured norms.” judge expected The State also asserts that the circuit to testimony County alleged hear such at trial since the in its complaint requiring county pay each to for its own public satisfy require- defenders did not the constitutional ments for effective assistance of counsel. The record re- presented flects that no such evidence was at trial..... County present any any The did on not evidence one allegations complaint, the central factual in its and the County try specific examples did not to show of when the public legal representation objec- defenders’ fell below the professional [Id. tive standard of reasonableness. (emphasis original).] in had Mississippi Supreme Court allowed the case forward in go allegations

to on basis of Quitman Co, (Miss, complaint, State v 807 So 2d 401 2001), doing, which is all that we are and our plaintiffs relief, must their ultimately prove case to obtain which county Quitman accomplish. failed to (CA Fraser, finally Benjamin We note 264 F3d 175 2, 2001), question which was a suit that involved the detainees had pretrial whether demonstrated the exist- ongoing ence of current and constitutional violations prospective and the need for the continuation of relief respect impediments attorney-client jail to to Appeals visitations. The United States Court of for the considering Second Circuit stated that burdens on “[i]n counsel, the Sixth Amendment not right to we have previously required plaintiff that an incarcerated dem- injury’ standing.” onstrate ‘actual order to have Id. at 186. The court further asserted that is not clear “[i]t injury’ us ‘actual would even mean as applied to what pretrial right detainee’s to counsel.” Id. Read in context, simply indicating, court was Benjamin with our that a Strickland-like consistently position, 284 MICHAPP 246

Opinion of the Court prejudice requirement, arising out of a trial convic- tion, is not if the to counsel has been applicable violated. framework,

Having analytical set the including harm, appropriate justiciable standard for we now move on applying allegations plaintiffs’ complaint the framework.

h. APPLICATION OF COMPLAINT ALLEGATIONS TO JUSTICIABILTY PRINCIPLES

(i) HARM AND THE NAMED PLAINTIFFS Christopher Plaintiff L. Duncan alleges that he pleaded guilty of an overcharged crime that was factually unwarranted attorney’s because his inad- equate representation. Burr, Plaintiff Billy Jr., Joe alleges that he had to endure a delay before an acceptable him, misdemeanor was plea offered to only which occurred after counsel advised him to plead guilty of the charged felony and after Burr demanded that counsel speak further to the prosecu- tor. Plaintiff Steven Connor alleges that there awas basis to suppress a search without warrant that was ignored by Taylor counsel. Plaintiff Antonio alleges that there existed a valid defense predicated on forensic evidence and witness accounts had counsel bothered conducting investigation an and inquiry. Plaintiff Jose alleges Davila that counsel failed to charges Davila, discuss the with lied to the court it, about and failed challenge revision charges. O’Sullivan, Plaintiffs Jennifer Christopher Manies, and allege Brian Secrest that counsel had effectively action, in gone missing despite fact they faced charges serious and that hearings trials pending. were A common thread that runs through all the allegations concerning named op Opinion the Court plaintiffs with counsel to converse the failure of plain- meaningful plaintiffs The named manner. in a allegedly experienced included: conduct tiffs plaintiffs, speaking time, in for the first with counsel pre- holding scheduled minutes before cells for mere hearing range liminary in full while examinations advising plaintiffs to waive inmates; counsel other meaningful preliminary dis- without examinations failing to matters; counsel on case-relevant cussions reports; police provide plaintiffs and counsel throughout neglecting generally course of the entire plaintiffs proceedings to discuss with criminal charges, accuracy the circum- of the and nature any potential purported crimes, and stances of the following: complain They further defenses. negotiations entering plea client into without counsel advising perfunctorily input approval; counsel meaning- charged guilty plaintiffs plead absent improperly inquiry; investigation and counsel ful pleas urging plaintiffs facts when were to admit hearings preparing and, neither taken; counsel engaging any communications with nor and trials by allegations concerning plaintiffs sum, trials. representa- include instances the named objective standard that fell below an tion counsel stages regard to critical reasonableness proceedings.19 criminal prosecutions recognize transpired that much has in the criminal We complaint. filing of the instant the named since

related to controversy respect actions, to a must be a case or class while there case, complaint filed in a plaintiff time the was named at the may and a controversy exist “between a named defendant continue to by plaintiff, though represented the named even member of the class Iowa, plaintiff 419 US has become moot.” Sosna claim of the named (1975). case, however, 553; 393, 402; L Ed 2d 532 The overall 95 S Ct controversy review. Id. In present a at the time court must still case Opinion of the Court

(ii) HAEM AND CLASSMEMBERS GENERALLY Plaintiffs devote an entire section of the complaint to allegations of harm suffered class members. Plain- tiffs allege that class members “are detained unneces- sarily or for prolonged periods of time before trial.” As examples, they refer to contract defenders and counsel indigents for rarely who seek reductions, bail despite calling reductions, circumstances for and who fail to appear at court proceedings, resulting frequent post- ponements and rescheduling. Plaintiffs refer to one class member who “was forced to sit in the county jail for months because an attorney he never met missed several consecutive dates, court including three sched- uled circuit court hearings.” These allegations include instances of deficient performance, which also resulted in the harm of unwarranted, unnecessary, and pro- longed delays and detentions.

Plaintiffs next allege that class members are com- pelled taking into inappropriate pleas, often to the highest charged crimes, even “when they have merito- rious defenses.” Plaintiffs assert that counsel routinely encourage guilty pleas “without a proper factual basis guilt” and absent “even a cursory investigation into potentially meritorious defenses.” They further com- plain of counsel pressuring class members to “open take pleas,” promise which particular no sentence and which “often result in punishment that is disproportionate to the facts of the case.” Plaintiffs refer to one case in which permitted counsel a client to plead guilty of failure to pay restitution though even he had already paid restitution. Plaintiffs indicate that class members are so fearful that counsel will not adequately prepare regarding certification, our discussion class we return to the issue of explain why compels mootness and the doctrine a conclusion that proper. certification was 321 Opinion the Court plead right their to trial forgo they trial that allega- These offenses. unwarranted factually guilty of deficient include instances regarding pleas tions de- indigent to a detriment that inflicted performance fendants. insist defendants who indigent that allege

Plaintiffs charges or to subjected punitive to trial going on refer delays. example, As an lengthy pretrial Muskegon in the sat indigent defendant who to an finally pleaded he 10 months before jail for County that the allege Plaintiffs charges. of various guilty counsel “refused court-appointed defendant’s told the and instead speedy to a trial enforce his to the would plead, prosecutor that if he did not client trial speedy him against before drop charges charges.” same re-arraign him on the ran and period had been no evidence that there Plaintiffs contend that to the crime and the defendant connecting who would have “had three alibi witnesses defendant scene.” near the crime that he was nowhere testified allegations. found from these Justiciable harm could be that class members face additionally allege Plaintiffs the facts. They than harsher sentences warranted received a a criminal defendant refer to a case which imprisonment despite 24 months’ sentence of to no incar- agreement recommended plea fact that that the sentence was “[w]hen ceration. Plaintiffs note nothing. In- attorney said [the defendant’s] imposed, the court of stead, who reminded prosecutor it was if plea her to allow the client to withdraw obligation its agreement.” the plea did not intend to follow the court County attorney Genesee allege “[a]n Plaintiffs plead guilty trying a client to decide whether told if he were con- meter that tampering parking with a years. of 15 trial, face a sentence he would victed MICH Opinion op the Court Michigan’s sentencing According guidelines, how- ever, sentencing for the which range crime with charged client 0 to 34 point was was months.” Plaintiffs County to a Berrien incident where a defendant was sentenced to 37 for an days jail offense had a statutory maximum; counsel 30-day nothing, said but the court clerk noticed error. also Plaintiffs assert that . often fail to provide meaningful “[c]ounsel.. representation sentencings,” at attorneys with “[s]ome offering] during information sentencing proceedings that is detrimental to their clients’ cases.” Other attor- neys, according plaintiffs, to “often fail catch to sen- errors and tencing do not read the pre-sentencing reports to the prior sentencing hearings.” Plaintiffs allege further that inadequate representation results in indigent defendants’ being improperly fees, assessed no they ability pay, which have to assert they failures counsel to otherwise explore available alter- natives to incarceration being result access denied to such drug alternatives treatment programs. These allegations include instances deficient performance to indigent detrimental defendants. “[cjounsel

Plaintiffs next maintain that are unable to necessary file motions for pre-trial suppression, discov- ery, speedy trial, [and] motions to quash circuit court bind-over, liminef, or motions in [t]hey and] often fail to illegal identifications, challenge illegal searches and seizures, illegally or obtained confessions.” Plaintiffs complain attorneys that “some refuse to their provide clients copies of court files and police records.” These allegations include instances of perfor- deficient mance detrimental to indigent defendants. respect trials,

With to plaintiffs allege: prepare adequately hearings cannot Counsel for court Many testify trial. do not witnesses on call their Opinion of the Court challenge prosecu- behalf, experts not do call clients’ meaningful tion, perform cross-examinations. not do closing at trial. opening make statements do not Others any meaningful defense case fact, many put do not on all. have wrongful convictions allege do

Plaintiffs the Strickland occurred, satisfaction suggests which in criminal typically applicable requirement prejudice appeals.

(iii) PREJUDICE AND HARM PRESUMED challenged the three court- allege that Plaintiffs “fail[] systems provide defense appointed, eligible indigent defendants.” Plaintiffs counsel to all them- represent ... must claim that members “[s]ome denied they wrongfully defender selves because vein, that “in- plaintiffs allege In that same services.” constitutionally eligible who are digent defendants counsel.” As an counsel are denied state-appointed County Berrien that example, plaintiffs “[o]ne contend routinely appoint . to counsel to defen- judge . . refuses topic, bail[.]” dants have made On this same who law firm hold- Muskegon “[t]he maintain that lawyers contract advises its to ing indigent defense representing from clients who discharged move to be jobs of how little those jobs, regardless have full-time County to attorney And Genesee refuses pay.” “[o]ne to him if he represent assigned defendants Instead, financially to he ineligible. considers them be a private attorney, as a at represent offers to them his rate.” Plaintiffs further con- discount from normal by a failure abide national that, tend as a result of standards, class members are “construc- performance de- denied, with the constructive tively or threatened allegations concern actual nial counsel.” These Opinion of the Court counsel, constructive denial which would ordinarily give rise to presumption prejudice a criminal appeal justiciable and which would constitute harm. Strickland, 692; at supra Cronic, at 659. supra allege “attorneys

Plaintiffs also that routinely repre- sent clients in situations in which conflicts of interest plaintiffs, “[m]any exist.” According indigent defense prosecutors, counsel also often serve in the same courtrooms the same judges. before Some are assigned to defend they previously individuals prosecuted.” As an example, plaintiffs allege “a Berrien County attorney felony does both defense work abuse and neglect system work. He has no screening conflicts despite the possibility defending parent under the felony contract is subject who also the of an abuse and neglect under proceeding Prejudice other contract.” is presumed an attorney when burdened an actual conflict Strickland, of interest. supra 692.

(iv) HARM, CAUSATION, WIDESPREAD AND REDRESS OF INJURY We first find the allegations discussed in the preceding reflect sections widespread systemic in- stances of violations constitutional right to coun- sel and the effective assistance of counsel. allege

Plaintiffs that an standards, absence of train- ing,20 programs, supervision, monitoring, guidelines, and independence from judicial and prosecutorial functions has in indigent resulted counsel having too many cases,21 staff, insufficient support insufficient or 20 According plaintiffs, “many indigent defense counsel are unable adequately they key aspects to advise clients their because are unaware of procedure, requirement of criminal law and such as the notice for the use appropriate objections.” of an alibi defense or 21 Plaintiffs claim: 325 Duncan v Opinion of the Court and a investigators,22 and experts to hire no resources assigned properly handle and experience lack of skills problems maintain that these Plaintiffs further cases. in putting presented cases created severe obstacles have meaningful adver- crucible prosecution to the additionally contend: testing. They sarial deficiencies, indigent de systemic result of the[] As a critical prior do clients fense counsel not meet with investigate ad stages proceedings;[23] in their criminal hire investi equately charges against their clients or testify preparation at gators can case who assist with motions; for trial; necessary prepare properly pre-trial file meaningful appearances; representation at provide court sentencings; experts consult when employ with necessary. addition, systemic provide no deficiencies attorneys cli ensuring representing for are method free from of interest. ents conflicts County, [I]n Berrien 6 of the 12 contract holders in 4,479 felony cases, a collective received total of and misdemeanor average per attorney. attorney doing for an of over 746 cases One (700 1,000 regularly year a caseload of contract work had cases felonies) private misdemeanors and 300 in addition to 200 cases. attorney Muskegon County felony per in routinely handled cases One year; per another handled 15 felonies week. allege “[ilndigent Plaintiffs defense are unable counsel ad equately investigate charges against or to their clients hire investigators preparation testify who can case at trial.” assist with They “[i]n note that the trial court in Berrien administrator investigator.” County single request expert an did not receive a for or an added.) (Emphasis allege: Plaintiffs speak do not their Most defense counsel clients they probable cause arrive the courthouse

before Attorneys plea hearing. routinely enter into in the Counties negotiations permission and initial client without clients’ before attorney only County that he interviews. One Genesee has stated prior preliminary to a examination meets with incarcerated clients they charged punishable by than five to if with felonies more years imprisonment. ten 246 MICH Opinion of the Court We have recited above the numerous harms claimed by and, ultimately, nexus or plaintiffs plaintiffs allege a widespread systemic causal connection between the and defendants, asserting: and deficiencies a direct of As result Defendants’ failure to ensure that

indigent providers necessary defense have the tools to constitutionally indigent provide adequate in the defense Counties, Counties, indigent in three defense services the State, operated and elsewhere in the the lowest cost regard possible adequacy and without to the constitutional indigent provided. of the services The result is that the provided each defense in of the three Counties does not — — attempt meet [American does not to meet the Bar Principles, Michigan’s Association’s] Ten Eleven Prin- ciples, safeguards; or commensurate and does or not meet attempt even to the meet constitutional mínimums re- by quired Michigan the United States and Constitu- tions.[24] complaint para We note that the contains numerous additional graphs alleging necessary dissent, citing the causal The connection. Iqbal, 1937; (2009), _; 556 US 129 S 173 L Ct Ed 2d 868

Ashcroft argues allegations plaintiffs’ complaint the that causation in fail because they legal allegations constitute mere conclusions and because the implausibly incapable being proven assert causation and are of disproven. impossible The dissent contends that it is for to prove alleged by that inaction and failures caused defendants Ashcroft, asserted constitutional violations. To the extent that a case interpreting the construing Federal Rules of Civil Procedure cases rules, bar, application by those even has to the case at which is controlled Rules, Michigan support summary it Court does not dismissal of plaintiffs’ complaint. respect argument allegations With to the that the of legal conclusions, allegation any causation are we first note that of causation, context, tinge legal whatever the carries with it some of a Additionally, complaint conclusion. the extensive sets forth numerous allegations causation, including factual on the bear issue of those by initially opinion. long ago principle cited us this We reiterate so ultimately it is announced Gideon that the state that has the obligation implement system affirmative constitutional that safe guards right defendants, indigent right, for counsel which under Cronic, Strickland and includes the to the effective assistance Duncan v Opinion of the Court criminal defendants who indigent

This case involves county system constitutionally inadequate under the counsel. If a is systemic today, i.e., finding widespread and we have set standards resulting deprivation performance of counsel and deficient instances of county system providing indigent representation, but from a flawed mandates, county compliance existing state law and full necessarily from failures cause of the constitutional deficiencieswill flow complaint alleges provided that the state has little or no the state. funding oversight, opting or fiscal or administrative to continue a practice delegating responsibility centuries-old the counties alleged funding administering defense services. It is nothing place have in defendants have done to ensure that the counties standards, necessary funding, policies, qualifications, programs, the training, guidelines, attorneys and other resources that would enable complaint goes provide constitutionally adequate representation. The matters, particularized e.g., into factual detail on each of these “Neither County job Muskegon programs descrip- the Berrien nor have written qualifications.” alleged or It further the lack of tions is fiscal standards, oversight, oversight, funding, policies, pro- administrative grams, qualifications, training, guidelines, in and other resources results cases, staff, providers many support too lack defense who have sufficient investigators experts, necessary are unable to obtain and lack the tools jobs, wanting experience assigned their in and to handle do skills cases, essentially prosecutor’s put and cannot case to the crucible of that, meaningful testing. example, plaintiffs allege adversarial As an as a inadequate training, “many indigent result of defense counsel are unable key adequately they aspects to advise their clients because are unaware of procedure, requirement of criminal law and such as the notice for the use objections.” appropriate allege of an alibi defense or Plaintiffs then systemic problems counsel, wrongful these result the denial of defi- convictions, performance, wrongful unnecessary prolonged pre- cient detentions, inappropriate guilty pleas, trial and unwarranted harsh words, plaintiffs’ sentences. In other defendants have violated constitu- rights. allegations Well-pleaded tional factual relative to causation have solely legal presented paragraphs been and not mere conclusions. The complaint conclusory complaint that are form the framework of sufficiently supported by allegations. and are more than factual See (“While Ashcroft, 1950; at_; 556 US 129 S Ct at 173 L Ed 2d at 884 they legal provide complaint, conclusions can the framework of a must be by allegations. well-pleaded supported factual factual When there are Further, veracity!.]”). allegations, a court should assume their by allegations plausibly suggest practices and unconstitutional conduct relief, allegations defendants and entitlement to and while the causation establish, may prove be difficult to cannot conclude that it is we 284 MICH Opinion of the Court subjected court-appointed, were, are, will be relevant, indigent systems employed by defense allegations counties. And there are extensive concern- ing detrimental and harmful effects on these criminal they pass through systems, by defendants, as caused attorneys, allegedly which, turn, ineffective result of the state’s and the Governor’s failure to protect rights the constitutional defendants. Accordingly, allegations there are sufficient of a causal injuries complained-of connection between the and the plaintiffs conduct, and have also indicated that the injuries would be redressed a favorable court deci- granting prayed-for equitable sion relief. SeeMichi- gan supra Citizens, that, at 294-295. We hold on the pleadings juncture basis of the and at this in the plaintiffs sufficiently alleged lawsuit, that, have facts if standing, ripe true, establish establish that the case is adjudication, upon for tory and state claims which declara- injunctive relief can be awarded. Stated differ- ently, presently justiciable, the case is because a case or controversy ultimately exists. Whether can prove allegations their and establish their case is a day. matter for another

6. CLASSCERTIFICATION Defendants maintain that the trial court erred in granting plaintiffs’ certify motion to the class. Defen- plaintiffs dants contend that failed to show that a class superior way litigate action is the to the claims. In support superiority argument, of the defendants assert purpose that a “class action serves no useful because requested may the relief be obtained from an individual automatically action and would accrue to the benefit of impossible We, prove court, appellate to causation. an should not engage trying deny plaintiffs opportunity present the case or to proofs. their Duncan v Opinion of the Court of the similarly part superiority situated.” As others class action suit argue defendants also that a argument, inconvenient, under unmanageable impractical, standard, ex- requires Strickland which applicable support of individual In further of the proofs. amination that the class is argument, argue defendants superiority are too fac- unmanageable because the three counties tually disparate, practical prob- that the class creates claims, criminal litigating lems suffer no adverse effect if this Court defendants will class, plaintiffs adequate decertifies the and that have Finally, remedies at law. defendants maintain that failed to plaintiffs commonality, demonstrate where alleged systemic violations will individualized require relief proof would not be the same for all class court, The trial on the of the pleadings, members. basis contrary arguments, ruled to each one of defendants’ finding commonality, superi- established ority, typicality. James, 12, 15-16; Neal v 651 NW2d (2002), general this Court articulated some prin-

ciples whether a class should applicable determining be certified: Michigan addressing

Because there is limited case law in certifications, may class this Court refer to federal cases construing the federal rules on class certification. When certification, evaluating a motion for class the trial court is required accept allegations support made in request for certification as true. The merits the case are plaintiff not is on examined. burden to show that requirements [Citations for class certification exist. omitted.]

“The five factors a court must consider when decid- ing certify whether a class are found in MCR 3.501(A)(1), and a plaintiff seeking certify class must that all requirements show five enumerated App 246

Opinion op the Court Hill, supra citing Supply satisfied.” A&M Co v 580, 597-598; Mich Corp, 654 NW2d Microsoft (2002) 3.501(A)(1) in (emphasis original). MCR provides: may

One or more of a members class sue or be sued as representative parties on behalf of all members in a class only action if:

(a) joinder the class is so numerous that of all members impracticable; is

(b) questions there are of law or fact common to the predominate questions members of the class that over affecting only members; individual

(c) representative parties the claims or defenses class; typical of the claims or defenses of the (d) representative parties fairly adequately will and protect class; assert and the interests of the (e) the maintenance of the action as a class action bewill superior adjudication to other available methods of in promoting justice. the convenient administration of a. NUMBER OF CLASS MEMBERS AND OF PRACTICALITY JOINDER requirement first for class is certification must joinder class be “so numerous that of all 3.501(A)(1)(a). members is impracticable[.]” MCR complaint, plaintiffs indicate: indigent persons The Class is defined as all adult who charged charged have been with or will be with felonies Berrien, Genesee, the District and Circuit Courts of Muskegon rely rely Counties and who will on the provide Counties to them with defense services. The Class against felony includes all adults whom criminal charges brought Berrien, Genesee, Muskegon will be during pendency Counties of this action. agree class,

We that the as defined the complaint, sufficiently joinder numerous to make Opinion of the Court reject impractical. class member We also of each argument challenging ruling Zine, this under dissent’s supra. Zine, In this Court concerned with lemon- was by Chrysler that were distributed to law booklets issued allegedly purchasers of new vehicles and that were distinguishable misleading. Wefind Zine because it did systemwide type prospective, not entail the of relief sought here, it did not a fluid class of involve bar, and it did such as exists the case because not present allegations widespread systemic of and in- harm, “harm” in stances of as we have defined the term opinion. this commonality legal questions

b. of and factual requirement The second for class certification is “questions that there must be of law or fact common predominate to the members of the class that over only questions affecting members[.]” individual MCR. 3.501(A)(1)(b). require While this action will contem- plation specific performance of instances of deficient and instances of the actual or constructive denial of questions counsel, the ultimate broad factual com- given type class, mon to all in the members sought, relief are whether there have been wide- spread systemic violations, constitutional being by whether the violations and are were caused county systems, deficiencies in the defense systemic and whether the deficiencies were and are attributable to or resulted from the action or inaction Any concerning of defendants. evidence individual prosecutions bearing particular has no on those appellate remedies, criminal cases and the available except any pending to the extent of effect on a case systemwide remedy resulting caused from an judgment order or rendered in this action. The evi- APP

Opinion Court pertaining prosecutions merely dence to individual piece larger puzzle constitutes relative to establishing systemwide a basis for re- prospective, action, type rights lief. the context of this of civil Zine, the situation in the factual question unlike will relevance all members any be class revolves widespread systemic around the establishment of of deficient and denial performance instances counsel; viability regard the case’s to all mem- depends aggregation bers on an of harm that pervasive persistent. equally

The dissent’s reliance on Neal is misplaced. That case involved claims of racial discrimination brought by a class of African-Americans who held or had sought with the of Detroit’s employment city department. law class, The trial court certified the and this Court reversed satisfy for failure to the commonality requirement. The panel holding Neal reached its because “individual factual pertinent plaintiff circumstances to each will need to be reviewed, individual, and need fact-specific inquiries will to made in evaluating why be certain individuals not were hired or or other promoted, why individuals were dis- charged Neal, or not retained.” supra Importantly, at 20. the Court thereafter stated that the plaintiffs “simply had not any specific shown that there was policy practice satisfy followed defendants to the re- ‘commonality’ Here, Id. quirement[.]” plaintiffs’ case is built on defen- dants’ and the counties’ and it policies practices, requires proof widespread systemic constitutional violations available, any before relief is and it focuses on systemwide, relief. Neal prospective simply inapposite.

Next, there is commonality respect also to the legal questions, which all concern state and federal constitutional to due and to counsel. rights process We allegations satisfy conclude that the in the complaint the in commonality requirement regard to both the factual and legal questions presented. Opinion of the Court

c. TYPICALITY OF CLAIMS The third requirement for class certification is that there must be representative “claims ... of the parties are typical [that] claims ... of the MCR class[.]” 3.501(A)(1)(c). As reflected in our earlier review of the in allegations complaint, claims of the named plaintiffs, pertained which mostly perfor- to deficient mance of counsel at critical pretrial stages of the criminal proceedings, are typical allegations the class members. allegations We conclude that the complaint satisfy typicality requirement.

d. PROTECTION OF INTERESTS BY REPRESENTATIVE PARTIES The fourth requirement for class certification is that representative “the parties fairly and adequately [must] protect assert and the interests of the class[.]” MCR 3.501(A)(1)(d). Plaintiffs allege: representatives fairly adequately

[The] Class will protect the interests of the Plaintiffs. Plaintiffs’ counsel know representatives of no conflicts of interest between the class respect and absent class members with to the matters at issue litigation; representatives vigorously this the class will prosecute Class; the suit on behalf of the and the class representatives represented by experienced counsel. Given that “the trial court is required accept allegations made support request for certifica- tion as true” evaluating when a class certification motion, Neal, supra considering quoted 3.501(A)(1)(d) allegations, we conclude that MCR has been satisfied.

e. SUPERIORITY respect factor, With to the fifth whether “the main- tenance of the action as a class action superior will be to App 284 MICH Opinion of the Court in adjudication promoting of

other available methods justice,” administration of MCR convenient 3.501(A)(2) 3.501(A)(1)(e), MCR provides: determining of the In whether the maintenance action superior other methods as a class action will be to available adjudication promoting the administra- of convenient among justice, the court shall consider other mat- tion of following ters the factors:

(a) separate by prosecution actions or whether risk of against individualmembers ofthe classwould create a (i) adjudications varying respect or inconsistent with members of the class would confront the individual opposing incompatible party the class with standards of conduct; or

(ii) adjudications respect members of to individual dispositive practical would as a matter be class that adjudica- parties the interests other members not substantially impede ability impair tions or or their interests; protect their

(b) declaratory equitable might final relief be whether respect class; appropriate with to the (c) manageable the action be as a whether will class action;

(d) complexity or the whether view the issues litigation separate expense of claims of individual class support separate members are in amount to insufficient actions;

(e) probable may whether it is that the amount which be large enough recovered class members will be individual expense administering in relation to the and effort of action; justify action to a class (f) significant whether members of the class have a controlling prosecution sepa- or defense of interest rate actions. Co, Edgcumbe v Cessna Aircraft

573, 575; (1988), this explained 430 NW2d 788 Court 335 v Opinion of the Court 3.501(A)(1)(e), requirement “[t]he of MCR that the class action superior adjudica- be to other methods of promoting tion in the convenient administration of justice, outgrowth is an of the of equitable heritage class recognition practical actions and a limitations on judiciary’s capability disputes.” to resolve The rel- evant concern in determining the convenient adminis- justice tration of is whether the disparate issues are so as to make a class unmanageable. action suit Dix v Florida, American Bankers Assurance Co Life of (1987). 410, 419; Mich 415 NW2d 206 “Matters such as defenses, diversity counterclaims, of et may cetera bear upon determination of whether class action suit promote will the convenient justice.” administration of v Ed, 502, Lee Grand Bd Rapids 505; (1989). 459 NW2d 1 On examination and consideration of the enumer- ated factors relative superiority, 3.501(A)(2), MCR we that they weigh conclude favor certification of the class. It is vital keep mind the plaintiffs’ nature of complaint analyzing the class certification issue. Plaintiffs will need to establish widespread instances of ineffective assistance of counsel and denial of counsel. prosecutions Because criminal in the three counties are not being stayed during pendency litigation, this class members constitute a fluid class and the attendant criminal proceedings continually Indeed, will be in flux. prosecutions of the named plaintiffs, to our knowl- edge, have been mostly resolved. Promoting the conve- nient justice administration necessarily demands that this proceed case as a class action. In Reynolds (SD Giuliani, F Supp 352, NY, 2d 2000), 391-392 the federal district court commented:

[C]lass formality certification is not a mere because it against will danger insure becoming of this action App 246 284 MICH Opinion of the Court the claims of involves a fluid class where moot. This case may prior completion become moot the named magnified by litigation. danger of this of mootness is ability to the claims the fact that defendants have the moot judicial plaintiffs, thereby evading review of of the named Court, Thus, this like other courts under their conduct. circumstances, believes that class certification these (2d Toia, necessary. Cir. See Greklek v. 565 F.2d 1977) grant (affirming district court’s of class certification declaratory injunctive requesting relief “since in action possibil- only could avert the substantial class certification decision”); becoming prior ity litigation moot to the of (S.D. 1986) 609, Coughlin, 612 Alston v. 109 F.R.D. N.Y. (“[t]he plaintiffs averting possibility interest in of moot, becoming with the concomitant interest in action judicial economy, in makes class certification this case more formality”); City empty Dep’t [v Jane B. New York than an (SD 1987)] (“[a]n [64, NY, Services] Social 117 F.R.D. of granting additional reason for the motion for certification mootness”); avoiding problems [v in lies Ashe Bd of 1989)] (“[a] (ED [45, NY, Elections] 124 F.R.D. further ground finding to class certification be more than a ‘formality’ danger here is avoid the of the individual plaintiffs’ becoming adjudica- moot before a claims final (E.D. 1985) tion”); Perales, v. 108 F.R.D. Koster N.Y. (class certification, necessary certification is when “absent mootness”). danger Accordingly, there is a substantial plaintiffs’ granted. motion for class certification is if dangers We have the same mootness this case is not pursued through the vehicle of a class action lawsuit. arguments This fact alone defeats most of defendants’ certification, e.g., argument on the issue of class purpose. that a class action serves no useful Absent certification, assuming class and even that no mootness exists, prosecution separate issue actions would varying adjudications. create a risk of inconsistent or 3.501(A)(2)(a). Furthermore, equitable MCR de- claratory only appropriate relief would not be for the case, being its it is the establishing only class on relief Opinion of the Court 3.501(A)(2)(b). Additionally, MCR find that sought. we action, the action be as a manageable would class that any claims be insuf- individual class members would ficient to actions in com- support separate view of the plexity expense litigation, of the issues or the issue, recoverable dollar amounts are not at and that significant individual class members do not have a controlling separate interest actions. MCR 3.501(A)(2)(c) (f). through arguments Defendants’ contrary, including hinging those on the now re- jected test, Strickland two-part unavailing.

IV SUMMARY respectfully disagree We with our dissenting col- league’s opinion and, criticisms of this to the extent not already above, addressed feel compelled respond. issues, This case certainly presents difficult requiring us, in part, to tread unchartered legal waters. There are, however, some fundamental principles play here.

It accepted part is well of the judiciary’s role and function in our tripartite system government is to interpret provisions, constitutional apply constitutional requirements hand, to the facts at safeguard and and protect constitutional rights, all through entry of orders and judgments guided by stare decisis. That the judiciary can declare executive and legislative conduct unconstitutional, prohibit continuing can unconstitu- tional conduct the two other branches of govern- ment, and can demand constitutional compliance, hardly seem to be in foreign principles the jurispru- dence of this state and the For country. support, we need not look any further than the historic landmark case of Marbury, supra 177-180, in which Chief Justice John Marshall eloquently so stated: 284 MICH

Opinion the of Court law, paramount superior is either a The constitution means, ordinary is on a level with unchangeable by or it acts, and, acts, like other is alterable ordinary legislative If the former legislature please to alter it. shall when the act, true, legislative then a part the alternative be constitution, part if the be contrary is not law: latter to the attempts, on true, constitutions are absurd then written power, in its own nature part people, the to limit a the Certainly framed written all those who have illimitable. forming the fundamen- contemplate them as constitutions nation, consequently the paramount of the and tal and law be, the theory every government must that an act of such constitution, This the is void. legislature, repugnant to constitution, theory essentially to a written and is attached court, considered, is, by this as one of consequently, to be not, society. principles It is there- fundamental of our the fore, sight of, of this in the further consideration to be lost subject. legislature, repugnant to the constitu- If of the an act it, invalidity,

tion, void, notwithstanding bind the does its is Or, words, give courts, oblige them to it effect? in other law, operative though it constitute a rule as it be not does fact, overthrow, to what as if it was a law? This would be seem, view, theory; and would at first an was established however, shall, It absurdity gross to be insisted on. too is, emphatically, It receive a more attentive consideration. judicial department, say duty of the to province the particular apply the rule to what the law is. Those who cases, necessity expound interpret that rule. If must of other, the courts must decide on two laws conflict with each each. operation constitution; So, if opposition to the both if a law be case, apply particular so and the constitution to a the law case, court must either decide that conformable that the constitution; law, disregarding or conformable constitution, law; disregarding the the court must governs conflicting rules of these determine which then, very judicial duty. If essence of case: this is of the constitution, regard and the constitution courts are to any ordinary legislature, superior act Duncan v Opinion the Court constitution, act, ordinary govern such and not must the then, Those, they apply. case to which who both controvert considered, principle, the in that the constitution is to be court, law, paramount necessity the as a are reduced to eyes maintaining courts on must close their the constitution, only the doctrine and see law. This would very subvert the of all foundation written constitutions. It which, to according principles would declare that an act void, theory yet, government, entirely is our is declare, practice, completely obligatory. It would that if the legislature forbidden, expressly act, what is shall do such notwithstanding express prohibition, reality is in effec- giving legislature practical tual. It to would be omnipotence, professes real with the same breath which to powers restrict their within prescribing narrow limits. It is limits, declaring may passed that those limits be pleasure. nothing,

That it thus reduces we have what deemed greatest improvement institutions, political on a writ- constitution, would, itself, sufficient, America, ten be where written constitutions have viewed been with so reverence, rejecting much for the construction. But the peculiar expressions of the constitution of the United arguments States furnish rejec- additional of its favour judicial power tion. The of the United States extended to arising all cases under the Could it constitution. be the gave say, intention of power, those who this using that in it, the constitution should not be looked into? That a case arising decided, under the constitution should be without examining the instrument under arises? which it This is extravagant cases, too then, to be maintained. In some judges. constitution must looked they be into And if open all, part can it they read, at what of it are forbidden to obey? many parts There are other of the constitution which subject. serve to illustrate this apparent,

[I]t is framers of the constitution contemplated government that instrument as a rule Opinion op the Court Why legislature. otherwise does courts, the as well as of support it? This oath to judges to take an oath

it direct the manner, in their conduct certainly applies especial in to an them, impose it on immoral to their official character. How instruments, knowing and the they to be as the if were used they support! The instruments, violating swear to for what too, legislature, completely office, imposed by the is oath of subject. It legislative opinion on this demonstrative swear, solemnly I will admin- “I do is in these words: equal right respect persons, to and do justice, ister without rich; faithfully that I will and poor and to the and to the discharge on me as impartially all the duties incumbent my according the best of abilities to _, constitution, understanding, agreeably to the and laws judge discharge Why swear to the United States.” does a agreeably to the constitution of the United his duties States, govern- forms no rule for his if that constitution him, inspected by upon cannot be [I]f ment? it is closed things, this is worse than him? If such be the real state of oath, mockery. prescribe, this becomes To or to take solemn reconfigured; emphasis [Paragraphs equally a crime. added.] years, than 200 the United

Moving forward more Boumediene, in reiterated supra, Court Supreme States stated that Marbury. the from Court principles requiring political judgments from abstaining questions left that such matters are best recognition reflects judiciary. and not the Boumedi- political the branches 2259; L Ed ene, 128 Ct at 2d at 77. 553 US S at_; However, hold branches have political “[t]o [that] on or off at will is to switch the Constitution power unacceptably Id. This would another quite [matter].” system in our striking anomaly tripartite “permit Congress in which government, leading regime ” Court, President, say ‘what law is.’ not this Id., at 177. quoting Marbury, supra determining are involved judgments

Political proceeds method which a state manner and Opinion of the Court providing representation criminal defen- dants, including, Michigan, delegation of represen- tation matters to judges. local counties and chief But if the state has failed to its allegedly satisfy constitutional i.e., obligations with its chosen approach, switching off constitutions, state and federal it to the up judiciary judge whether the state has indeed consistently acted requirements. with constitutional From Marbury to Boumediene, has this field been as including defined interpretation of constitutional language, applica- tion of constitutional principles, judging of consti- tutional and the compliance, safeguarding of constitu- rights. tional is all occurring This that is in this case. allowing Without for court and possible examination intervention, Legislature the Governor and the effec- tively determine respect “what the law is” with to the right to counsel and the to the effective assistance of counsel.

We are setting public Rather, not policy. we are simply indicating that the judiciary can evaluate the constitutional of compliance policies implemented by the two political branches of government. We are not suggesting judiciary that the can dictate to the other government branches of the type system of to employ in providing representation for indigent defendants. The judiciary, however, say can must a with have respect whether system a chosen is constitutionally sound. judiciary clearly cannot the require political branches to use system system a “better” than cur- rently in the place, where existing system sufficiently safeguards rights. constitutional See Grand Traverse (it Co, supra at is for the Legislature to decide implement whether more system). desirable expressed Concerns have expenses been about may be incurred state taxpayers state to 284 Mich APP Opinion the Court of system. Assuming this were indigent defense an

operate of this state occur, taxpayers first we note repre- of for the already paying the burden bearing are defendants; being it indigent just accom- sentation Impor- through taxing authorities. different plished Supreme did not tantly, economic concerns dissuade construing United States in Gideon from Court in a that mandates effective assis- manner Constitution Further, dur- defendants. indigent of counsel for tance times, the challenging judiciary, economically these ing issues, must be reminded addressing constitutional Warren in Bowsher Berger of Chief Justice words Ed 714, 736; 3181; 106 S Ct L 2d 583 478 US Synar, (1986): Congress can and the President are

No one doubt that problems unprec- and economic confronted fiscal magnitude, given law or but “the fact that a edented efficient, convenient, facilitating procedure is useful government, standing alone, it if will not save functions contrary to Convenience and effi- it is the Constitution. objectives ciency primary not —or government....” [Citation hallmarks —of democratic omitted.] expressed about respect

With to the concerns operate the state will have to an possible prospect that level, the trial care system defense we not state, agencies, it is the administrative coun- whether bodies, courts, any or alone ties, municipalities, other combination, system repre- operate providing Our only for criminal defendants. indigent sentation regardless system adopted, is that whatever concern safeguard entity operates system, it must of what rights to counsel and the effective the constitutional complaint Plaintiffs have filed a assistance counsel. containing allegations that those constitu- sufficient currently being are not rights protected tional Dissenting DUNCAN V MICHIGAN Opinion by Whitbeck, J. systems employed three counties at issue under the counties, be blamed on ultimately those which can are thus defendants’ constitutional failures. Plaintiffs day to have their in court. entitled v CONCLUSION by govern- that defendants are not shielded We hold immunity, proper parties, mental that defendants court, Claims, has the trial not the Court of and jurisdiction, jurisdiction and that the trial court has relief, declaratory injunc- order authority prohibitory relief, relief, mandatory injunctive tive and some level define. presently the full extent of which we need not that, and pleadings hold on the basis of the We further lawsuit, in the have suffi- juncture plaintiffs at this that, true, standing, if ciently alleged facts establish and state ripe adjudication, establish that the case is for declaratory injunctive and relief can upon claims which Finally, prop- be awarded. we hold that the trial court for class certification. erly granted motion Affirmed. J.,

SAWYER, concurred. (dissenting). sweep- J. This case involves a WHITBECK, ing challenge Michigan’s system and fundamental funding legal indigent services for crimi- operating decades, has, by statute, this system nal defendants. For indigent at the local level. But the criminal operated (the who are the here defendants change They judicial seek to that. seek inter- plaintiffs) and the vention to the state of Gov- require operate that statute and to both ernor to override fund services for criminal defendants legal Berrien, Genesee, counties, the ex- Muskegon 344 284 Mich 246 by Dissenting Opinion Whitbeck, J.

pense of state and in taxpayers prin- violation of basic ciples separation powers. of of reasonably

It is foreseeable that the final result of judicial inevitably such intervention opera- will be state funding legal tion and of such throughout services Indeed, Michigan. the Duncan plaintiffs give us a pre- things when, view of to come in their complaint, they problems assert that the describe they by “are no means limited or unique the three Counties.” The Duncan plaintiffs go on to state that the alleged failures of the state and the Governor problems “have caused similar throughout obviously, then, State.” Rather Duncan plaintiffs regard Berrien, Genesee, and Muskegon simply staging counties as areas in their overall effort to superimpose centralized statewide regime state-funded1 of legal services for indigent crimi- 1 (“Defendants’ ¶ See, example, Complaint, any for steps 10 failure to take indigent to ensure adequately that the defense services in the Counties are administered, result, indigent and providers and that as a defense funded necessary jobs, have the resources and tools to do their anis abdication of obligations, Defendants’ constitutional and the result is denial of defendants.”) (em constitutionally adequate indigent defense to criminal (“This ¶ phasis added); Complaint, Complaint focuses on how the provide funding Defendants failures to and fiscal and administrative over sight indigent system Berrien, have Genesee, created a broken defense Muskegon Counties; failings counties, but the types those and the by Plaintiffs, by unique harms suffered these no means limited or to the provide funding oversight any three Counties. Defendants failure to or State.”) problems throughout the State’s counties have caused similar ¶ (emphasis added); Complaint, (“Michigan provides funding specifi no cally provision indigent felony for the defense services criminal actions stage any county at the trial in the three Counties or other in the State. To funding the extent that pay indigent state is used the Counties to services, defense funding spent Defendants do not ensure that such appropriately. provide funding And to extent that the Counties of their own, provide any oversight Defendants do not guidance the Counties with funding produces system to ensure capable that such an defense services.”) providing constitutionally adequate indigent (emphasis defense (“On ¶ added); Complaint, basis, Michigan an annual allocates monies to Opinion by Dissenting Whitbeck, J. existing statutorily created upon nal defendants operated system. locally funded Moreover, pre- seek this relief the Duncan is, their com- they at the time filed conviction: had to trial or plaintiffs gone none of the Duncan plaint, This adjudicated. peculiar had their cases otherwise into a judiciary gaze procedural posture invites ball that the Duncan crystal preconviction the effect of events speculate have devised and to on of clair- yet Unfortunately, gift that have to occur. our routinely accompanies not one that voyance is commissions, and I would decline the invitation. judicial however, The is not deterred. It finds majority, gives claims to be and it plaintiffs’ justiciable, in grant- the widest latitude Ingham Circuit Court ma- declaratory injunctive relief. As the ing both admits, such relief could jority’s opinion candidly po- of criminal tentially prosecutions entail cessation Berrien, Genesee, defendants in against indigent counties, compliance absent constitutional Muskegon with the to counsel.2 Fund, Equity by a Court administered the State Court Administrative Office, Counties, help Michigan, pay and the other counties in trial operations expenses indigent expenses]. [which court include defense added); grossly insufficient.") (emphasis Complaint, amount allocated is (“[A]s ¶ provide funding of Defendants’ failure to and to 103 result oversight, provision indigent de- exercise fiscal and administrative inadequately fense services at the trial court level the three Counties ”) (“Because ¶ added); (emphasis Complaint, of Defendants’

funded indigent providers necessary failure to ensure that defense have the tools constitutionally indigent defense, provide adequate defense services in each financed.”) (emphasis added); adequately of the three Counties are not (“Plaintiffs ¶ Complaint, irreparable harm suffer or are imminent suffering and serious risk of such harm because of Defendants’ failure to adequately Michigan’s system.”) [sic] and oversee defense fund ¶¶ 156,157, (emphasis added); allegations Complaint, in the see also similar 163, 164, 171, 174, 177, 178, 167, 170, and 181. 2 Ante at 273. 284 MICH Dissenting J. Opinion Whitbeck, Obviously, such an approach implicates public policy highest and fiscal matters of the jurisprudential and fiscal importance. Because I separation believe under basic powers principles proper application under the —and concept judicial modesty legis- executive and —the matters, lative branches can and should address such I respectfully majority’s dissent from the holdings with respect to the justiciability of the Duncan plaintiffs’ claims, the appropriateness of the relief that the Duncan plaintiffs have and the sought, necessity of this certifying matter as a class action.

I. INTRODUCTION THE A. MICHIGAN APPROACH TO OPERATING AND FUNDING AN INDIGENT CRIMINAL DEFENSE SYSTEM AT THE LOCAL LEVEL

The Michigan system for providing counsel for indigent criminal and, defendants has been in effect for some time inception, from its it Indeed, has been local in nature. the Michigan Supreme Court over 100 years ago recognized that the procedure for compensating such counsel under a statute reasonably similar currently to the one in effect “competent” was under then-existing precedent.3 4The (the current statute indigent act), criminal defense did predecessor versions, its divides the system for providing indigent counsel to criminal defendants who are unable procure counsel categories: into two

Upon proper showing indigency], [of judge the chief [of appoint... court] the circuit attorney shall an to conduct the accused’s examination and to conduct the accused’s attorney appointed by defense. The the court shall be county treasurer, entitled to receive from the on the judge certificate the of chief that services have been ren- dered, the amount judge which the chief considers to be compensation performed.[4] reasonable for the services 4 MCL 775.16. Withey v OsceolaCircuit Judge, 168, 169; NW (1895). Michigan Duncan v Dissenting Opinion Whitbeck, J. and to determine

Thus, duty appoint the counsel indigent for defense of the compensation reasonable branch, the the judicial the local level rests with duty the circuit court. The judge of the chief person counsel, by compensa- of reasonable way to fund such branch, tion, in the person rests with the executive provid- And the county responsibility treasurer. branch, with the usu- ing funding legislative such lies ally county board commissioners. 1, 2004, January Michigan Supreme

Effective procedure record-keeping Court established the selecting, appointing, at the local level for requirements indigent represent par- counsel who compensating (the criminal defense indigent ties all trial courts rule).5 indigent B of the criminal court Subsection rule that each such trial court provides defense court must a local administrative order that describes adopt selection, its and com- procedure appointment, for such C such court pensation. requires Subsection each trial to submit the local administrative order for review to approve the State Court Administrator who “shall plan provisions protect integrity if its will of the Thus, judiciary.” the court rule adds a level of state judicial responsibility by requiring branch the State Court Administrator if approve plans they local will “protect integrity judiciary.” taking

But even criminal court defense account, rule into there is no question primary responsibility operating funding indigent for both criminal defense in remains local. The semi- nal case in this area is In re Recorder’s Court Bar Ass’n case, Wayne Circuit Court.6

5 MCR 8.123. Court, Wayne 110; In re Recorder’s Court Bar Ass’n v Circuit (1993). 503 NW2d 885 284 MICH APP 246 Dissenting Opinion by Whitbeck, J. plaintiff challenged system the “fixed fee” for indigent There, place Wayne County.7 defense the Michigan Court held Supreme Wayne County fixed fee “ system systematically provide failed to ‘reasonable ” compensation’ within the meaning Court, however, criminal defense act.8 The declined to implementation direct of any specific system or method of compensating counsel.9 The Court elected instead “to leave that determination to the sound judges discretion of the chief the respective courts.”10 The that, Court went on to observe at the time of its decision in there were fifty-six plus circuits the Detroit Recorder’s Court in our spread throughout eighty-three state varying counties of Attorney population financial means. likewise varies from county Indeed, county. potential myriad there is a local necessarily considerations that will enter into judge’s chief compensation.” determination of “reasonable Thus, compensation may what constitutes reasonable nec- circuits.[11] essarily vary among The decision in Recorder’s Court Bar Ass’n dealt primarily operation system the fixed fee indigent defense in Wayne County. Court, both in its direction to the affected chief judges to develop and file with the Court a for a plan payment system “that reasonably compensates assigned counsel for services performed consistent opinion”12 with this and its decli-

7 Id. at 112-113. (“We 116; simply that, Id. at see also id. at 131 hold whatever the system utilized, compensation compensation actually or method of paid reasonably representational must be related to the services that the attorneys actually perform.”) (emphasis original). individual 9 Id. at 116.

10Id.

11Id. at 129.

12Id. at 136. Michigan Duncan v Dissenting Opinion Whitbeck, J. method, recog- any system adopt specific nation payment of such local, varying, character nized the systems. in 2003 in subject this Court revisited Supreme Judges Bar Ass’n v Co Criminal

Wayne of Chief Defense fashion, Court summary In Court.13 Wayne Circuit declared: by plaintiffs’ complaints and persuaded are not

We Wayne Judges of the supporting papers that the Chief which, adopted fee at this Court have schedule Circuit compen time, provide assigned reasonable fails to counsel meaning indigent criminal defense [the sation within the act].[14]

Then Chief Justice CORRIGAN concurred the denial order, commenting: increased efficiencies and new cost-

There have been technologies years, saving over the as well as increases in costs; attorneys assigned and the overhead costs for lower than criminal defendants are sometimes attorneys types performing similar for other of work. costs plaintiffs paid for Nor have shown that the fees an entire attorney gener- case or fees that an receives over time are ally Although plaintiffs unreasonable. have so low to be paid Wayne shown that fees under the Circuit Court fee low, frequently plaintiffs schedule are have not shown that generally compen- the fee schedule results in unreasonable According compensation figures pre- sation. to national pared by Spangenberg Group for the American Bar Legal Indigent Standing Committee on Aid and Association Defendants, average compensation paid compensation range the middle of the nation- falls near wide.[15] Wayne Wayne Judges Criminal Bar Ass’n v Co Chief Defense (2003). Court, Circuit 468 Mich 1244 14Id. omitted). (citations (Corrigan, J., concurring) Id. 284 MICH 246 Dissenting Opinion by Whitbeck, J.

It is true that the state funding is involved trial operations court to some extent. for example, Legislature established the Court Equity Fund, which limited provides funding for trial court But both the operations.16 operational responsibility and the funding responsibility providing for the defense of indigent criminal defendants remain prima- rily local. As the Supreme explained Court Frederick v Isle Co Circuit Presque Judge:

Traditionally, county primary has been the unit in directing Michigan’s justice system. criminal along county

“[Jludicial circuits are drawn lines and required by expenses counties statute to bear facilities, certain courtroom circuit court commissioner salaries, salaries, stenographer’s juror’s compensation, attorneys appointed by persons the court to fees for defend themselves.”[17] procure who cannot counsel for The in Court Frederick went to find that, on although all courts the state are part Michigan’s one court of justice,18 “Legislature power retains over the county and may delegate to the local governments certain powers.”19 The Court held that in indigent criminal act, defense Legislature “did just that”: di- “[i]t rected the judge chief of the circuit court to appoint an attorney represent to an defense, defendant’s county directed the to pay for such services.”20This system is the that remains in effect today. And this is the system that the Duncan plaintiffs challenge this case.

16See MCL 600.151b. Presque 1, Judge, 6; Frederick v Isle Co Circuit 476 NW2d (June (1991), OAG, 1967) quoting 1967-1968, 4,588, pp 12, No 49-50 omitted). added; (emphasis citations 6, § Const art 1. 19 Frederick, supra at 15.

20Id. Michigan Dissenting J. Opinion Whitbeck, TO

B. RIGHT COUNSEL correctly majority notes, the Sixth Amend- As the provides that States Constitution ment of the United prosecutions, “[i]n accused shall all criminal right... enjoy of Counsel have the Assistance articu- Constitution his defence.”21 landmark decision its lates the same right.22 Supreme States the United Gideon v Wainwright,23 Amendment to coun- held that the Sixth Court through “obligatory” regard states to the sel was operation In that Amendment. of the Fourteenth charged case, in a Florida state court with was Gideon breaking entering poolroom a with intent felony This offense was commit a misdemeanor.24 Appearing in the trial court with- under Florida law.25 lawyer, Gideon asked the court out funds and without appoint The trial court refused counsel for him.26 ultimately request, and Gideon was convicted.27 corpus Supreme Court denied habeas re- The Florida granted Supreme States Court then The United lief.28 Supreme Court’s certiorari and overturned the Florida decision. rendering Gideon, the United States its decision importance providing

Supreme explained of Court indigent defendants: counsel for 21 Const, Am US VI. 22 1, § Const art 20. 335, 342; 792; Wainwright, 372 US 83 S Ct 9 L Ed 2d 799 Gideon v (1963). 24Id. at 336.

25Id. at 336-337.

26Id. at 337.

27Id.

28Id. 284 Mich Dissenting Opinion by Whitbeck, J. court,

[A]nyperson poor haled into who is too to hire lawyer, be cannot assured a fair unless counsel trial provided This seems to be an for him. to us obvious Governments, federal, quite prop- truth. both state and erly spend money machinery vast sums to establish to try Lawyers prosecute defendants accused crime. to everywhere protect public’s deemed essential to orderly Similarly, society. interest in an there are few crime, indeed, charged defendants with few who fail to lawyers they get present hire the prepare best can to government lawyers their pros- defenses. That hires to money lawyers ecute and who defendants have the hire strongest widespread to defend are the indications lawyers necessities, belief that in criminal courts are not charged luxuries. one crime to counsel may not be deemed fundamental and essential to fair countries, very trials in some but it is in ours. From the beginning, our state and national constitutions and laws great emphasis procedural have laid on and substantive safeguards designed impartial to assure fair trials before every equal tribunals in which defendant stands before poor law. This noble ideal cannot if be realized charged man with crime has to face his accusers without him.[29] lawyer to assist Thus, country state, in our and in our we deem the right to being counsel as both fundamental and neces- sary to a fair trial. And we accept proposition that, just as the public pays for to prosecutors prosecute defendants, criminal the public should also pay for counsel represent such defendants who are too poor lawyers “hire the best they get prepare can present their address, defenses.”30 But Gideon did not to, even allude the question of the effectiveness counsel who criminal represent defendants. The United directly States Court did Supreme not address that 344. Id. 30 Id. 353 Duncan v Opinion by Dissenting J. Whitbeck, later, Washing- v Strickland years until 20 question ton.31 EFFECTIVENESS OF COUNSEL

C. Court Strickland, Supreme United States person that a enough it not that was determined her standing by his or lawyer crime have a accused of a is entitled Rather, that the accused the Court said side.32 necessary role to ensure lawyer “plays who to trial is fair”:33 lawyer present at person happens to be a is That a who accused, however, enough not to alongside the trial Amendment satisfy the command. Sixth constitutional it recognizes right of counsel because to assistance to the playing a role is critical envisions counsel’s system produce just An ability results. of the adversarial attorney, whether is entitled to be assisted an accused necessary plays the role appointed, retained or who fair.[34] ensure that the trial is particularly the Strickland case were The facts of indicated, during 10-day As the Court egregious. and committed three planned Strickland period crimes, stabbing included three brutal sets of which assaults, at- murders, torture, kidnapping, severe extortion, and theft.35 At murders, tempted attempted trial, trial, jury against his to a Strickland waived all advice, charges, pleaded guilty his counsel’s Thus, the capital charges.36 the three murder including Washington, 668; 2052; 80 L Ed 2d 674 Strickland 466 US S Ct (1984). Id. 684. 33 Id. at 685.

34 Id.

35 Id. at 671-672.

36 Id. at 672. 284 MICH 246 Opinion by Dissenting Whitbeck, J. the performance case revolved around of Strickland’s case, sentencing phase phase counsel at the a that culminated in trial imposition the court’s of the death penalty. Supreme upheld The the Florida Court convic- tions.37 sought postjudgment Strickland collateral relief basis, on the among things, other that his counsel had rendered ineffective assistance the sentencing at pro- relief,39 ceeding.38The trial court denied and the Florida Supreme Court affirmed denial.40 The case reached Supreme through United States Court the habeas corpus process.41

The United Supreme initially States Court deter- that, mined although challenged Strickland the effec- tiveness of at the sentencing phase, counsel in a capital sentencing case the phase “sufficiently was like a trial in its adversarial format and in the existence of stan- dards for decision, that counsel’s role the proceeding is comparable to counsel’s role at trial... .”42Making it doubly sure that there would be no misunderstanding, the Court “[flor said that purposes describing coun- duties, sel’s capital sentencing ... Florida’s proceeding distinguished need not be from an ordinary trial.”43 The Court on to went state the “proper that measure of attorney performance remains simply reasonableness under prevailing It professional norms.”44 enunciated a two-part standard for assessing counsel’s assistance to a convicted defendant who claims that such assistance

37 Id. at 675.

38 Id.

39 Id. at 676.

40 Id. at 678.

41 Id. at 678-683. (citation omitted). Id. at 686-687 Id. 687. 44 Id. at 688. Duncan v by Dissenting Opinion Whitbeck, J. reversal of a conviction require as was “so defective component required first . . . or death sentence .”45 “deficient”; performance was showing that counsel’s that is, errors “so serious that counsel made that guaranteed the ‘counsel’ functioning counsel was not The second the Sixth the defendant Amendment.”46 showing per- deficient component required is, defense; that counsel’s prejudiced formance of a serious as to defendant deprive errors “were so trial, Applying whose fair a trial result reliable.”47 performance Strickland’s these standards counsel, held: the Court required showing of either deficient

Failure to make prejudice defeats ineffective- performance or sufficient generally, there is a failure. More ness claim. Here double justice showing the of his made no that [Strickland] has by a in the rendered unreliable breakdown sentence was by adversary in counsel’s assis- process caused deficiencies sentencing proceeding was not funda- [Strickland’s] tance. unfair.[48] mentally with the importance, dealing when

Of considerable set out several situa- component, Court prejudice Those situations presume prejudice. tions which to or constructive denial assistance “[a]ctual kinds of inter- and “various state altogether” counsel circum- counsel’s such ference with assistance.”49 stances, likely case-by-case is that so “[prejudice... Other into not worth inquiry prejudice cost.”50 preju- delineated those contexts which decisions have including the to have presumed, right dice can be 45Id. at 687.

46Id.

47Id.

48 at 700. Id. 49 Id. 692. 50Id. 356 284 246 MICH J. Dissenting Opinion Whitbeck, present pretrial counsel to a right lineup,51 right do pretrial of those who not hearing,52 appointed counsel to secure counsel their require own choice.53 In People Michigan Supreme v Court Pickens,54

adopted the ineffective assistance standards Strickland articulated. The Court held that Michi- gan Constitution offers the same level of protection as the United States Constitution.55 The United States Supreme Court has recognized to counsel “ encompasses ‘every in the step proceeding against [a ”56 That defendant].’ Court has also acknowledged that “to assure that the accused’s interests will be protected consistently with our adversary theory criminal prosecution,” the accused must be guaranteed pres- ence of counsel at all “critical confrontations.”57 D. THE DUNCAN PLAINTIFFS’ CLAIMS AND THE RELIEF REQUESTED

Neither the United States Supreme Court nor the Michigan Supreme Court has addressed the threshold (1970). ^[51] Coleman v Alabama, 399 US 1, 7; 90 S Ct 1999; 26 L Ed 2d ^[387] judicial proceedings right him and his rev’d in appearance (1967); ^{[55] [57] [56] [52]} vMoss United Id. People Pickens, at 7 Coleman, supra See US United to see Pugh part, ^[103] counsel.”). 302. also States 2592; 171 L before a liberty (1975). and remanded on other v Rothgery Rainwater, Ed 2d v States, Wade, judicial that subject 366, 383 v (citation omitted). trigger 323 F3d Gillespie 483 F2d officer, to US 298; restriction, (2008) (“[A] 218, 227; attachment Co, where he learns the 778, 521 NW2d 797 grounds Texas, ^[787] 87 S marks the start of (CA 2003). criminal defendant’s (CA of the Sixth Amendment sub Ct 6, 5, nom 1926; US_,_; (1994). 1973), Gerstein 18 L charge aff 'd Ed adversary 128 S Ct 2d v against Pugh, initial part, Michigan Duncan Opinion Whitbeck, J. Dissenting a Sixth Amend- approach how courts should question of of counsel claim the effective assistance right ment to relief con- injunctive and declaratory prospective for systemic injuries result- cerning preconviction claimed indigent criminal representation that ing from the receive, or would from their receiving, defendants Supreme The United States attorneys. court-appointed and Strickland was concerned Court in Gideon results, not to tell the states presume It did process. not receive to that criminal defendants indigent how ensure counsel. effective assistance of defen- exactly indigent But the criminal that is what case seek to have the plaintiffs dants who are the this Duncan plaintiffs In their the judiciary complaint, do. Michigan and asserted that under Gideon Consti- defendants, the of and tution the named state Governor, duty indigent have to ensure necessary tools to mount a defense counsel have the and ensure that defendants proper defense to ad- constitutionally are not their to deprived further equate representation. plaintiffs Duncan essentially asserted the defendants “have done system address the current nothing problems [of counsel indi- county responsibility providing defendants] criminal or their constitutional obli- gent gations.” the complaint, appointed at the time of

Notably, represented plaintiffs each of attorneys the state charges pending. criminal were As out, complaint at the time none point Governor had to trial or otherwise had plaintiffs gone the Duncan Further, state adjudicated. their cases time complaint, at the none Governor assert that had attempted of the Duncan have their attorneys Finally, according to the assigned replaced. Mich Dissenting Opinion by Whitbeck, J. Governor, and filing state the since the of the complaint, eight seven of the Duncan plaintiffs have been sen- (The tenced. record is silent of regarding any whether these postconviction individuals have made claims of counsel.) of ineffective assistance Despite the fact that none the plaintiffs of Duncan been had convicted of at the filed anything they time complaint, prayer relief, their their for major- ity notes, Duncan plaintiffs sought a court declara- conduct, tion that act, the defendants’ failure to practices unconstitutional and and sought unlawful enjoin to the defendants from subjecting class members continuing unconstitutional practices.58 As the ma- jority states, the plaintiffs Duncan an requested order “ requiring the defendants ‘to provide indigent defense programs representation consistent with the re- of quirements the United and Michigan States Consti- ”59 tutions.’ essence, then, plaintiffs sought Duncan their complaint judiciary have the override the Michigan system funding local control and legal indigent services for criminal Clearly, defendants. if the judiciary orders the state the Governor to provide “indigent for defense programs and representation,” then provisions of the indigent criminal defense act will, for all purposes, intents and become a dead letter. the predicate Without even finding indigent criminal defense act unconstitutional under Gideon and Strickland, judiciary will, if it grants the relief that the Duncan sought in their complaint, inevi- tably superimpose a statewide system and state-funded legal services criminal defendants upon

58Ante at 259.

59Ante at 259. Michigan Dissenting Opinion Whitbeck, J. And the provisions people of that statute. will, course, upon be called the fund state of system. such statewide substi- necessity, judiciary

Of will therefore have of the proper public policy tuted its view of for that enacting amending and the Legislature majority consistently criminal defense act. While the directly refuses to address the issue of the relief that the case,60 plaintiffs sought my Duncan this view this I ignored, again issue cannot be and will return to it opinion. later in this

II. CLAIMS UPON RELIEF BE WHICH CAN GRANTED

A. OVERVIEW appeal, against On the state and the Governor defend plaintiffs’ grounds, the Duncan claims on a number of First, including closely they three that are related. assert that the Duncan do not plaintiffs standing. have Second, they assert that the Duncan claims plaintiffs’ are ripe adjudication not because these claims are for too remote and abstract the warrant issuance of (“We See, affirm, ante at 254-255 example, holding for that... the jurisdiction authority declaratory relief, trial court has and to order mandatory injunctive prohibitory injunctive relief, and some level of relief, presently define.”) (emphasis the extent which we need not full (“We added); ante at 280-281 only speculate regarding can at this time ultimately compliance measures needed to be taken in order to come into constitutions, assuming plaintiffs with the state and federal establish Only possibilities explored, their case. when all other are exhausted and discussed, already regarding appropriations do there arise issues and legislation, separation powers, and the full extent of court authority. Therefore, jurisdiction we no need at this time and this find for conclusively questions posed.”) (emphasis Court to added); address the (“In sum, ante at 284 we reiterate that we decline at this time to define equitable authority jurisdiction beyond extent trial court’s and full added). recognized accepted opinion.”) (emphasis earlier in this 284 Mich APP 246 Dissenting Opinion by Whitbeck, J. injunctive Third,

declaratory gener- relief. and more ally, they plaintiffs assert that the Duncan fail to state a claim on granted which relief can be because declaratory judgment and injunctive inappropriate in this relief matter. rejected standing The trial court and ripeness arguments Governor, finding state that the did plaintiffs not first have to be convicted or have request for new counsel denied for standing and ripeness purposes. respect With to Strickland and its standards assessing performance counsel, ineffective the trial court made the statement: following argued

Defendants have that the Strickland standards apply should to the case at hand. Strickland states that a convicted defendant’s claim of ineffective assistance of performance counsel must show that counsel’s was defi- cient, performance and that the prejudice deficient did defense.

It’s not clear to the Court if the Strickland standard applies pre-conviction [sic] claims of inadequate representation, but the Court does —the Court does not believe that it would have to delve into the particular circumstances of each case as the defendant [sic] claims.

Here, the trial court was a wrestling concep- problem tual that plagues this case and others like it throughout country. obviously, Rather this case differs from Strickland in important two respects. First, it is an appeal involving case, a civil not a one, criminal Second, as was the case in Strickland. Strickland involved a posiconviction while appeal, Duncan plaintiffs filed their in complaint this matter preconviction. The trial court here dealt with this problem by indicating that it not was clear whether but, applied event, Strickland in any it did not believe it go would have to into the circumstances of each particular case. Duncan v Opinion by Dissenting J. Whitbeck, so, the trial saying view, explicitly without my that the Dun- determination making a

court here was a sufficient to warrant allegations were plaintiffs’ can circumstances, such Under prejudice. of presumption is so according to Strickland progeny, prejudice and its not the cost.61 worth case-by-case inquiry that likely avoids then, approach trial court’s neatly, Rather preconviction impossible process conceptually criminal assessing performance case when, perfor- that part, for the most defendant’s counsel something like a making And yet has to occur. mance case-by- thereby forgoing se and per finding prejudice case, if the mean, in this would inquiry case claims, sweep- their then the could substantiate seek would declaratory injunctive they relief ing under the circumstances. appropriate be Thus, court, if somewhat but elliptically, the trial claims the Duncan essence, plaintiffs’ first found that prejudice. to create a presumption were sufficient claims, if would proved, Then it found that those injunctive Of declaratory warrant both relief. course, which MCR these are the exact elements with 2.116(C)(8) succinctly That court rule states that deals. if may summary disposition “[t]he a trial court grant party has failed to state a claim on which opposing relief granted.”62 can be here, cites63 the saint appeal majority patron

On Chief Justice John interpretation, of constitutional Marbury Marshall, writing for the Court Madison.64 Marshall never conceived of the idea But Chief Justice mandatory injunction compel legislative appro- of a 61 Strickland, supra at 692.

62 Emphasis added.

63Ante at 337-340. Cranch) (1803). (1 Madison, 137; Marbury 2 L 5 US Ed 60 App 246 284 MICH Dissenting Opinion by Whitbeck, J. v Madison Marbury of funds.

priation involved the of executive branch action. constitutionality Here, un- der the the Duncan assert and approach majority implicitly accepts, challenge legisla- inaction, tive and branch through alleged executive failure to fund and properly system administer for providing legal services to criminal defendants.

So, analyze within what framework are we to plaintiffs’ challenge? My basic premise is that we must first determine whether the Duncan plaintiffs’ claims amount to a violation se of the Sixth per Amend- so, ment If counsel. we must then determine the judiciary grant they whether can seek within relief existing declaratory injunctive standards relief. And we must make these determinations proper with a regard for concept separation the basic of powers. 2.116(C)(8)

B. STANDARD OF REVIEW UNDER MCR 2.116(C)(8), Under MCR the legal basis of the com- plaint is tested the pleadings alone.65 All factual allegations are taken as any true and infer- reasonable ences or conclusions that can be drawn from the acts light construed in the most favorable to the non- moving The motion should party.66 be denied unless the claims are clearly so unenforceable as a matter of law that no factual can development possibly justify a right to recover.67 This Court reviews de novo a trial court’s ruling on a summary motion for disposition.68 This Court also reviews de novo constitutional issues such as standing ripeness.69 Rozwood, (1999). Maiden v 109, 119-120; 461 Mich 597 NW2d 817 66 Id. at 119.

67 Id.

68 Id. at 118. 69 Michigan Chiropractic Council v Comm’r Financial Office of Services, (2006). 363, 369; and Ins 716 NW2d 561 Duncan by Dissenting Opinion Whitbeck, J. for a under the standard of review Accordingly, 2.116(C)(8), take this Court must motion under MCR and this allegations the Duncan as true plaintiffs’ all inferences and any must construe reasonable Court can from the acts in a conclusions that this Court draw state, The plaintiffs. most favorable to the Duncan light however, understatement, has con- something in of an appellate ceded both at the trial level and the level “im- systems Michigan defense can be public Therefore, I required, accept as the Duncan proved.” plaintiffs’ allegations question, again, as true. is did the assert justiciable twofold: and, so, they claims if claims which can upon relief These a granted? inquiries, necessity, require be standing, consideration of and the ripeness, appropri- declaratory injunctive ateness of relief.

C. STANDING standing, plaintiff To have must first have suffered an injury fact, is an invasion of a legally protected which interest that is concrete and particularized, actual or imminent, than conjectural hypothetical.70 rather Sec- ond, there be a causal must connection between the injury complained-of third, and the conduct.71 And it likely, must be opposed merely speculative, as injury will be redressed a favorable decision.72

D. RIPENESS ripeness closely The doctrine of is related to the doctrine standing, justiciability pending both doctrines assess presence injury for the claims of an actual or imminent ofComm’rs, 726, 739; Lee v Macomb Co Bd 464 Mich 629 NW2d 900 (2001). 71 Id.

72 Id. Dissenting Opinion by Whitbeck, J. However, standing ripeness

fact. different address underlying designed standing concerns. The doctrine particular party may properly whether to determine litigate ripe- the asserted claim for relief. The doctrine of ness, hand, suitability on the other does not focus on the rather, party; ripeness timing focuses on the action.[73] A claim is not and there ripe, justiciable is no “if

controversy, ‘the harm asserted has [not] matured ” sufficiently judicial intervention,’ warrant for in- stance, where the claim rests on contingent future not A may events that occur.74 constitutional issue is not ripe adjudication unless and until there an en- croachment upon a constitutional right.75

E. MCR 2.605 By requiring that there be “a case of actual contro- versy” and party seeking that a a declaratory judgment party,” 2.605, be an “interested MCR the court rule addressing declaratory judgments, incorporates tradi- tional restrictions justiciability, on such as standing, ripeness, and mootness.76 “The existence of an actual controversy is a precedent condition to invocation of declaratory relief and this requirement prevents court from deciding hypothetical issues.”77 73Michigan Chiropractic Council, supra (emphasis origi at 378-379 nal). 74 14, 381, quoting Seldin, 490, 10; Id. at 371 n Warth v 422 US 499 n (1975). 2197; 95 L S Ct 45 Ed 2d 343 75 (1999). Governor, 526, 544; Straus v 459 Mich 592 NW2d 53 Dep’t Industry Associated Builders & Contractors v Consumer & Director, 117, 125; (2005); Moses, Services Mich 693 NW2d 374 Inc v Michigan Governments, 401, 416; App Southeast Council 270 Mich (2006). NW2d 278 77Huntington Detroit, 616; Woods v 761 NW2d 127 (2008) omitted). (quotation marks and citation Dissenting Opinion Whitbeck, J. RELIEF

F. INJUNCTIVE “Injunctive extraordinary remedy relief is an only justice requires, adequate issues when there is no remedy law, and there exists a real and imminent danger irreparable injury.”78 longstanding It is a “ principle particularized showing irreparable ‘a indispensable requirement harm ... is ... an to obtain ”79 preliminary injunction.’ apprehension “The mere injury damage of future cannot be the basis for injunctive relief.”80

G. THE DUNCAN PLAINTIFFS’ CLAIMS

(1) STANDING AND RIPENESS majority standing principles discusses to some opinion And holds, extent.81 toward the end of its it pleadings juncture “[0]n the basis of the and at this sufficiently alleged lawsuit, have facts standing. body that, true, if establish . . .”82In the ofits opinion apparently support of this and other relating justiciability, majority determinations engages Casey.84 in an extended discussion83of Lewis v Ironically, Lewis was a case in which the United States Supreme prison Court found that the inmate standing, although lacked it did so not in the context of 2.116(C)(8) counterpart the federal to an MCR motion 78 Fighters City Pontiac, Pontiac Fire Union Local 376 v 482 Mich of (2008) 8; omitted). (quotation 753 NW2d 595 marks and citations 79 9, quoting Employees Id. at Coalition State Unions v of Comm, (2001). Civil Service 212, 225-226; 465 Mich 634 NW2d 692 Fighters, supra Pontiac Fire at 9. 81 Ante at 292.

82 Ante at 328.

83 Ante at 294-301. Casey, (1996). 343; Lewis 2174; 518 US 116 S L Ct 135 Ed 2d 606 App 246 284 Mich Opinion by Dissenting Whitbeck, J.

(failure upon granted), to state a claim which relief can be 2.116(C) (10) in an but rather the context of MCR motion (no genuine moving party issue of material fact and the is law).85 judgment entitled to as a matter of In the course of discussion, majority following its state- makes ment:

By analogy, do not here criminal defendants sustain harm, purposes justiciability analysis and the for of consti- counsel, simply tutional to effective assistance of their status as with because defendants court- subject appointed prosecutorial proceedings counsel system presumed existing deficiencies. There needs performance inadequate be an instance or of deficient i.e., representation, objec- “representation [falling] below an 688; Strickland, supra tive standard reasonableness.” 281, 302; Toma, 613 NW2d 694 [People v (2000)].[86]

Here, majority appears accept proposition Strickland matter, applies this at least to an extent there must be “an instance of deficient performance inadequate representation.” or Elsewhere it its opinion, majority concept: elaborates on this that, hold in the context of this

We class action civil suit seeking alleged widespread constitu- prospective relief violations, injury tional or harm is shown when court- appointed representation counsel’s objective below an falls (deficient performance) standard reasonableness trial, when a results an unreliable verdict or unfair criminal defendant is actually constructively or denied altogether stage assistance counsel at a critical in the or when counsel’s proceedings, performance is deficient prejudice presumed under circumstances in which would be injury further hold that typical We in a criminal case. court-appointed perfor- harm is shown when counsel’s representation mance or relative to critical deficient 85 Id. at 357-358. added). (emphasis Ante at 297 367 Duncan v Dissenting Opinion by Whitbeck, J. and,

stage proceedings showing in the absent a that it verdict, reliability performance a affected results in deficient detriment to a criminal that defendant meaningful fashion, relevant e.g., and in some unwar- pretrial Finally, that, ranted detention. we hold when it is court-appointed representation shown that counsel’s falls objective respect below an standard reasonableness with stage to a proceedings, critical in the there has been an legally protected invasion interest and harm occurs. additionally Plaintiffs must that show instances of defi- performance cient and widespread denial of counsel are and systemic they by and that are caused weaknesses and problems court-appointed, in the systems defense employed by counties, the three which are attributable to ultimately by caused defendants’ constitutional fail- ures.”[87] This paragraph is more than a impenetrable little but, breaking down, it there are several remarkable things First, about it. it is clearly a Strickland analysis in its reference to both performance deficient prejudice:88 these are the prongs two that Strickland I grant articulates. the majority, in this passage, does explicitly not refer to Strickland. And elsewhere the opinion, majority either completely or partially disavows applicability of Strickland.89 87 added). (emphasis Ante at 302-303 88 (“[The pllaintiffs See ante at allege wrongful 323 do occurred, suggests convictions have which satisfaction of the Strickland prejudice requirement typically applicable appeals.”). in criminal 89 (“In justiciability analysis, See ante at explore our we will also prejudice prong circumstances in which the of the Strickland test is (“We inapplicable.”); reject argument ante at 305 that the need to justiciable necessarily show that solely equates this case is showing widespread performance accompanied by instances of deficient resulting prejudice compromises in the form anof unreliable verdict that trial.”); (“Applying to a fair two-part ante at 306 test from requirement logic, Strickland here as an absolute defies where the allegations widespread, systemic constitutionally concern instances of inadequate representation requested remedy and where the in the form prospective continuing relief seeks to curb and halt acts of deficient MICH Dissenting Opinion Whitbeck, J. forgiving light, in the most

But even when viewed majori- the no discernable difference between there is formulation, showing a ty’s requiring “representa- objective an standard of reason- tion falls below [that] standard, ableness,” requiring a Strickland “deficient,” performance counsel’s was showing that is, errors “so serious that that that counsel made functioning guaranteed was not ‘counsel’ counsel Amendment,”90 by particularly the defendant the Sixth attorney performance proper “[t]he when measure prevailing profes- under simply remains reasonableness difference any sional norms.”91 Nor is there discernable “a majority’s showing between the formulation of a meaningful that is relevant and detriment to a criminal standard, which in some fashion” and the Strickland a that the deficient requires showing performance defense; is, that errors prejudiced the counsel’s a deprive “were so serious as to the defendant of fair trial, a trial whose result is reliable.”92 Much as the elsewhere, it in its central hold- majority may disavow ing applying analysis. Simply using it is a Strickland words, essentially meaning, different the same underlying analysis. not change does structure majority’s analysis But the is Strickland with a twist. analysis justiciability Even its entire relates though claims, plaintiffs’ majority to the Duncan takes applies things Strickland and it to those show at a on the proceeding must merits, Thus, presumably before the trial court. (“Our performance.”); two-part ante at 310 conclusion that the test in litigation generally not control this consistent with Strickland should suits.”). jurisdictions addressing comparable caselaw from other 90 Strickland, supra at 687. 91Id. at 688.

92Id. at 687. Duncan v Dissenting by Opinion Whitbeck, J. majority artfully articulating standard, avoids a whether it be Strickland or otherwise, which this plaintiffs’ Court can evaluate the Duncan claims in this simply allegations [the Rather, case. it finds that “the plaintiffs’ complaint Duncan] are sufficient to establish genuine controversy the existence of a case or between parties, reflecting dispute hypo- real, that is not apparently, This, thetical.”93 is a reference to the re- quirement standing, plaintiff that to have must have injury suffered an fact, which is an invasion of a legally protected particu- interest that is concrete and conjectural larized, imminent, and actual or rather than hypothetical.94 majority plaintiffs’ does outline the Duncan any objective claims,95and I contend that fair and requires review of these claims the conclusion that the majority particu- vast of those that concrete, involve a post- larized can, should, interest and be resolved in preconviction proceedings. rather than For these claims preconviction requires to be resolved at least four basic assumptions:

(cid:127) plaintiffs, That the Duncan and the class members they purport represent, will in fact be convicted of they charged the crimes with which are or of some offense; lesser

(cid:127) That inactions of the state and the Governor will have convictions; caused such is, that these inactions prejudiced will have so the defense that the plaintiffs they purport represent and the class will have been denied their Sixth Amendment to a fair trial;

93 Ante at 304.

94 Lee, supra at 739.

95 Ante at 256-259. APP246 284MICH Whitbeck, J. Opinion by Dissenting

(cid:127) named counties in the three That the trial courts unwilling results to correct such be unable or will finding ordering of deficient of a new trials on the basis prejudice performance defen- to the individual and dants; and

(cid:127) likely are that if the Duncan That it is declaratory injunctive preconviction granted and they seek, the situation for them this will redress relief they represent. purport to and for the class obviously willing majority to make each assumptions, preconviction, in order to find a these Clearly, controversy justiciable case. I am not. this conjectural hypothetical assumptions and these are plaintiffs’ not, claims do and nature. The Duncan and the cannot, that the inactions of the state show cause a denial of their have caused or will Governor They rights. not, cannot, have Sixth Amendment showing that the trial courts the named make a unwilling upon postcon- or unable to act counties And, ineffective assistance of counsel. viction claims of plaintiffs seek would the relief that the Duncan while certainly perhaps improve, change, the cur- even indigent system providing legal rent services they cannot, defendants, not, show criminal have granted in relief, if to be its that such even it were bring system entirety, that to the level of constitu- will necessary. they adequacy deem tional binding precedent Equally clearly, there is no particular attorney, guarantees an defendant a attorney particular skill, level of or that a an of a predetermined be amount of outside resources available attorney. Likewise, is no Sixth Amendment to an there meaningful relationship with counsel.96Ab- to a 96 (1983). 1610; 1, 13; L Ed 2d 610 Morris v 461 US 103 S Ct 75 Slappy, Duncan v 371 Dissenting Opinion by Whitbeck, J. sent certain blatant amounting instances to the denial counsel, appointed presumed counsel is competent unless a defendant can meet his or her burden to demonstrate a constitutional violation.97

In regard, this I note that “[c]laims of ineffective assistance are generally to be resolved through an inquiry into the fairness of a particular prosecution, by per not se rulemaking.”98 But in effect that what the majority grants in this matter: holding se per that, standing alone, the Duncan plaintiffs’ claims— despite their conjectural and hypothetical nature, de- their spite lack of a showing causation, despite their failure to show that a favorable decision will redress the situation they describe —are sufficient to establish standing and, therefore, justiciability. By contrast, I would find that the Duncan plaintiffs, because of the peculiar preconviction posture case, of this lack stand- ing.

The majority takes much the approach same to the question of ripeness. After some discussion of the prin- ciples ripeness,99 toward the end of its opinion the majority holds that “on the basis of the pleadings and at juncture this lawsuit, plaintiffs have sufficiently alleged that, true,.. facts if . establish that the case is ripe for adjudication . . .”100 .

Again, the underlying premises for such a holding, of necessity, are that the Duncan plaintiffs will be con- victed; that the inactions of the state and the Governor will have caused convictions; such that the trial courts Cronic, United States v 648, 658; 2039; 466 US 104 S Ct 80 L Ed 2d (1984). Hearing Caplin Drysdale, re Chartered, as to & 837 F2d Forfeiture (CA 1988). 637, 99 Ante at 292-293.

100 Ante at 328. MICH 246 284

372 Opinion by Dissenting Whitbeck, J. to unwilling unable or counties will be in the affected trials on the basis of by ordering new such results correct to the performance prejudice and finding a of deficient granting defendants; likely that it is that and individual declaratory and preconviction the plaintiffs the Duncan for redress the situation they relief seek will injunctive represent. to they purport for the class them and the one premises important, of these is While each majority critical. The states concerning causation is that the Duncan it has indicated throughout opinion its connection be- have to establish “causal plaintiffs will defense indigent deficient performance tween the not the causal simply That is systems being employed.”101 in The Duncan is relevant this case. connection that and the Governor. There- have sued the state plaintiffs fore, relevant causal connection must be between and the the state and the Governor alleged inaction of at the local level. alleged performance deficient mantra, Now, plaintiffs if the Duncan repeating is such a causal connec- repeatedly aver that there in single they allege not a fact that tion.102But there is 101 n Ante at 303 13. 102 (“This ¶ See, example, Complaint, Complaint focuses on how provide funding to and fiscal and administrative the Defendants’ failures Berrien, system indigent oversight defense in have created a broken Genesee, provide Muskegon to Counties.... Defendants’ failure any funding oversight counties have caused similar of the State’s (“As State.”) ¶ added); (emphasis Complaint, problems throughout failures, attorney [plaintiff Billy Burr’s] Joe a result of Defendants’ meaningful put prosecution’s case to the crucible of unable to added); generalized testing.”) (emphasis see also similar adversarial ¶ ¶¶ 35, 44, 51, 56, 63, 67; Complaint, allegations Complaint, (“As indigent defense of Defendants’ failure to ensure that a direct result constitutionally adequate providers necessary provide have tools Counties, indigent three defense services in the defense State, Counties, operated possible at the lowest cost and elsewhere in the provided.”) regard adequacy the constitutional ofthe services and without added); allegations Complaint, (emphasis generalized also similar see Duncan v Dissenting Opinion Whitbeck, J. their generalized their asser- complaint supports alleged tions that inaction of the state and the performance Governor has caused the deficient that the Moreover, simply repeating outline. again change the same and again words does not their character.

Undoubtedly, the alleges causation. But it complaint does not the allege necessary Unsupported causation. generalized allegations that, and just unsupported generalized. all due to the respect With way there no it can be majority, possibly proven is that of the failure the state and the to do an Governor something undefined specifically caused the deficiencies they allege. Intuitively, might guess one that the some- deficiencies, thing alleged is correlated with the even though something that remains beyond undefined mere generalized assertions of inaction. But is correlation not causation, and a hunch is a basis upon not a court which grant can declaratory injunctive relief.

Indeed, regard, in this opinion recent United Supreme States Court Iqbal103 v has Ashcroft considerable applicability. That case a involved Biv- ¶¶ ¶ 103,104,109,113,118,120,123,125,126,130, 141; Complaint, 156 (“As herein, provide funding set forth Defendant Granholm to fails oversight County programs, to the nothing and therefore does to ensure that provides necessary indigent the State tools to defense counsel in the Counties.”) (“As ¶ (emphasis added); Complaint, [the 157 a result of provide Governor’s] funding guidance, Michigan’s to and exercise failures funded, indigent administered, system poorly defense is under and does not provide protections.”) added); (emphasis mandated constitutional Com- (“[The ¶ plaint, provide funding Governor’s] 160 to and to failure oversight necessary constitutionally exercise the adequate for during felony defense proceedings trial court criminal violates Plaintiffs’ rights Constitution, under the Sixth Amendment United States counsel.”) including, to, but not limited their effect assistance (emphasis added); generalized allegations Complaint, see also similar ¶¶ 163, 164, 167,170, 171, 174, 178, 177, and 181. (2009). _; 1937; Iqbal, 556 US Ct 129 S 173 L 2d 868 Ed Ashcroft MICH Opinion by Dissenting Whitbeck, J. Muslim a Pakistani Iqbal, Javaid action that

eras104 federal and detained charges on criminal arrested 2001, terrorist following September officials Attorney United States attacks, former brought against Bureau of Investi- and Federal John Ashcroft General the ma- Ashcroft, Mueller.105In Robert gation Director rules of that, the federal held under the Court jority of true all accept must that a court “the tenet pleading, inappli- a is complaint contained allegations majority also held legal conclusions.”106 cable claim for plausible that states “only complaint to dismiss.”107 survives a motion relief case in a different from this Admittedly, Ashcroft First, Iqbal’s aspect significant respects. number Court re- Supreme the United States complaint declaratoiy or damages, not was his claim viewed in the Second, precise analog there is no relief. injunctive 8(a)(2), requires P FR Civ which Michigan Court Rules to plain a “short and statement must contain pleading that a entitled to pleader that the is showing of the claim Third, supported decision in was the relief[.]”108 Ashcroft of the Court. majority a bare only by 104 of Narcotics, Agents Bureau Named Fed See Bivens v Six Unknown of (1971), 388; 1999; the States L Ed 2d 619 in which United 91 S 29 403 US Ct private implied “recognized an action for Supreme for the first time Court alleged a citizen’s consti damages against officers to have violated federal Malesko, 61, 66; Corp 122 rights.” 534 US Correctional Services tutional (2001). 515; L 2d 456 S Ct 151 Ed 105 1942; Ashcroft, 173 L Ed 2d at 876. at_; 129 S Ct at 556 US 106 1949; Id., at_; at 173 L Ed 2d at 884. US 129 S Ct 556 1950; (emphasis Id., L Ed 2d at 884 at_; 129 S Ct 556 US added). 2.111(A)(1), pleading requires must be which that But see MCR 2.111(B)(1), direct”; requires of “clear, concise, a “statement MCR which stating facts, pleader the cause repetition, the relies on which the without reasonably necessary the action, specific allegations to inform the of party called on to party of the claims the adverse is of the nature adverse judgment 2.111(B)(2), requires for defend”; “[a] demand for which and MCR Duncan v Opinion by Dissenting Whitbeck, J.

Nevertheless, instructive to consider the element it is the framework of the of causation within Ashcroft ¶ the com- allegation the 160 analysis. Consider funding failure to provide “[defendant’s that plaint necessary for constitution- oversight and to exercise the felony trial court indigent during defense ally adequate under rights violates Plaintiffs’ proceedings criminal Amendment to the United States Constitu- the Sixth to, effec- tion, including, but not limited their obviously, Rather this is a tive assistance counsel.” legal wrapped allegation. conclusion within a factual As such, Ashcroft, requirement under that court true would be accept allegation inappli- must this say is not that the assertion of causa- cable.109This Rather, fanciful. nature conclusory “[i]t tion is allegations pre- ... that disentitles them to the [the] sumption of truth.”110

And, secondly, allegations regarding if such causation truth, then, were not entitled to the presumption under Ashcroft, plausibility. we would examine them for And it is here run into an absolute dead They plausibly end. cannot assert that the alleged failures the state and the Governor have caused alleged performance deficient at the local reason, others, level for the simple among that there is way no can they possibly prove such causation. It is conceivable that increased oversight funding at the might state level improve system pro- the current viding legal services to criminal defendants. again, equally might But then it is conceivable that it just conjure way by not. And as I can no which up pleaders “pleading the relief seeks” and that must include allegations jurisdiction that show that the claim is within the of the court.” 109Ashcroft, 1949; at_; L 556 US 129 S Ct at 173 Ed 2d at 884. 110Id., 1951; at_; 556 US 129 S 173 L Ed 2d at Ct 886. App 246 284 MICH Dissenting Opinion by Whitbeck, J. prove can their assertion that inac- tion the state and the Governor has caused the situation, I way by current neither can conceive of a which these defendants can that assertion. disprove Thus, legal we are left with conclusions that not do carry presumption incapable of truth and that are being proved or As in there is disproved. Ashcroft, the Duncan nothing nudges plaintiffs’ complaint “ ”111 from plausible.’ ‘across line conceivable to addition, allegations all the regarding causation the Duncan plaintiffs’ complaint contingent on may And, future events that not occur.112 their given nature, contingent I contend that the harm asserted matured sufficiently judicial has not to warrant inter- vention.113 I find would therefore the Duncan plaintiffs’ adjudication. claims are not ripe

(2) THE LUCKEYCASES majority, discussion, justiciability its refers to and relies on one of a series familiarly of cases known the Luckey Harris,115 cases.114In v Luckey plaintiffs, preconviction indigent defendants, alleged deficiencies in the Georgia indigent system defense sought an order requiring state defendants to meet minimum constitutional standards in the provision of criminal notes, defense services. As the majority state but the fails to recognize, the underlying controversy Luckey actually spawned five different appellate opinions. 111Id., _; 1951; 885, quoting 556 US at 129 S Ct at 173 L Ed 2d at Bell Corp Twombly, 544, 570; 1955; Atlantic v 550 US 127 S Ct 167 L Ed 2d (2007). 112Michigan Chiropractic Council, 14, supra at 371 n 381. 113Id.

114Ante at 311-313. (CA 1988) I). Harris, Luckey 11, (Luckey 860 F2d 377 Duncan by Dissenting Opinion Whitbeck, J. deficiencies that plaintiffs claimed Luckey resources, delays appoint- included inadequate counsel, attorneys hurry ment of on their pressure guilty clients to trial or to enter a plea, inadequate suit, The dismissed the supervision.116 district court that were seek- stating inappropriately ing ruling Georgia an across-the-board that the crimi- systematically nal defense scheme denied or would inevitably deny effective assistance of counsel to the indigent accused, and that holding plaintiffs’ allegations were insufficient to meet the Strickland standard.117

But the United States Court of for the Appeals reversed, holding Eleventh Circuit that the plaintiffs’ pretrial Sixth Amendment claims did state upon claims systemic prospective which relief could be granted.118 According Circuit, to the Eleventh the Strickland stan- dard was to a inapplicable seeking civil suit prospective relief, observing “[prospective that relief designed avoid future harm” and concluding that such relief “can protect rights, constitutional even if the violation of rights these would not affect the outcome of a trial.”119 The Eleventh Circuit stated that plaintiffs bringing such prospective satisfy claims their pleading burden “ they when ‘the show likelihood of substantial and immediate irreparable injury, inadequacy and the ”120 remedies at law.’ Eleventh Circuit concluded that “the sixth amendment that protects rights do not Thus, affect the outcome of a trial. deficiencies that do 116 id.

117Id. at 1016.

118Id. at 1017-1018.

119Id. at 1017. 120Id., quoting Littleton, 488, 502; 669; O’Shea v 414 US 94 L S Ct (1974). Ed 2d 674 Mich Dissenting Opinion Whitbeck, J. may standard nonethe- not meet the ‘ineffectiveness’ rights less a defendant’s under the sixth amend- violate ment.”121 relies, upon holding majority

It is this here of the Eleventh Circuit stating opinion I Luckey our thoughts.”122 “mirror[s] However, in the denial of the defendants’ petition banc, According en several dissented.123 rehearing judges I original Luckey panel’s dissent, to the view the completely Sixth Amendment was inconsistent with the Strick- language Quoting and rationale of Strickland.124 II Luckey land Cronic,125 explained: the dissent in inextricably up The sixth amendment is bound with the right fairness of a defendant’s trial: “The to the effective sake, recognized is assistance counsel not its own but for ability it on because of the effect has the of the accused to purpose] receive a trial.” “The Sixth is Amendment[’s fair improve quality legal representation not to ... .” purpose guarantee “The of the Sixth Amendment of coun- to sel is ensure that a defendant has the assistance neces- sary justify proceeding. reliance on the outcome of the Accordingly, any performance in counsel’s deficiencies prejudicial be in must defense order to constitute Thus, assistance under the Constitution.” ineffective sixth amendment right right to counsel is not an' abstract particular representation; to a level of it is to the representation necessary for a fair trial. There can be no prejudice sixth amendment violation in the absence at a particular differently, prejudice, trial. Put if there is no alleged merely harmless; sixth amendment violation not there is no violation at all.

121 I, Luckey supra at 1017. 122Ante at 312. (CA 1989) II). Luckey Harris, (Luckey 896 F2d 479 (Edmondson, J., dissenting). Id. at 480 Cronic, supra. United States v Duncan v Dissenting Opinion Whitbeck, J. any prejudice

Because is an essential element of sixth violation, amendment sixth amendment claims cannot be adjudicated apart particular from circumstances of a differently, case. Put no claim for relief can be stated here.[126] general attempted terms as was LuckeyII, On remand from the decisionin the federal that, district court determined but its belief for that the court, law of the case bound the abstention would be (Under doctrine, the abstention “courts appropriate.127 equity particularly act, should not should not act prosecution, moving to restrain a criminal party when the adequate remedy has an at law and will not suffer irreparable injury equitable if denied relief.”128 Absten- proceedings tion from interference state criminal comity serves the vital consideration of between the governments.129) state and national The district court question appellate Luckey certified the for review and in granted III,130the Eleventh Circuit the defendants’ petition permission appeal. Luckey TV,131 Eleventh Circuit held that the law of the case did not preclude dismissing the district court on remand from complaint on the basis of the abstention doctrine. Finally, Luckey the Eleventh Circuit affirmed V,132 granted order, the district court’s which dismissal on grounds approval abstention and cited with the dissent Luckey dismissing in II. In the case on abstention grounds, “plaintiffs [sic] the district court stated that 126 (citations II, Luckey supra (Edmondson, J., dissenting) at 480 II). omitted; emphasis by Luckey added 127 (CA 1990) III)- 888, Luckey, 11, (Luckey See Harris v 918 F2d 891 128Younger Harris, 37, 43-44; 746; v 401 US 91 S Ct 27 L Ed 2d 669 (1971); see 28 2283. USC 129Younger, supra at 44.

130Luckey III, supra at 894.

131 (CA 1991) IV). Miller, Luckey 618, 11, (Luckey v 929 F2d (CA 1992) V). Luckey Miller, 11, (Luckey 976 F2d 678-679 App 246 284 MICH Dissenting Opinion by Whitbeck, J. every prosecution and con- intend to restrain systemic im- every indigent conviction until test are in they place.”133 seek provements basically ignores Luckey the dissent in majority persuasive II. I find that dissent to be both But in absent a here Luckey, showing here. As applicable attorneys’ prejudicially their claimed deficiencies affected their to receive a fair trial as right opposed an merely claiming right violation of abstract plaintiffs level of the Duncan particular representation, cannot show that the state has violated their Sixth to a fair my using Amendment trial.134 view and II, language Luckey there can be no Sixth prejudice Amendment violation the absence of at a And particular prejudice trial. because is an essential violation, any element of Sixth Amendment Sixth adjudicated Amendment claims cannot be from apart nutshell, the circumstances of a case. In a particular justiciable Duncan have not stated claims and neither the trial court nor this Court can appropriately finding reason, make a se. For this I prejudice per elaborated earlier in this opinion, plaintiffs’ Sixth Amendment fail they claims should because justiciable not as a matter of law.

H. THE RELIEF THAT THE DUNCAN PLAINTIFFS SEEK noted, I already plaintiffs’ As have the Duncan com- plaint sought declaratory extensive and injunctive relief But, noted, again this case. as I have the majority ostensibly throughout declines its address opinion to Rather, majority the issue that relief. holds that “on pleadings juncture the basis of the and at this

133Id. at 677. II, (Edmondson, Luckey supra J., dissenting). See at 480 Duncan v Dissenting Opinion by Whitbeck, J. lawsuit, sufficiently that, have facts if alleged true,. . . establish that the case .. . claims upon state[s] declaratory injunctive which relief can be that, Beyond the majority simply leaves awarded.”135 be, perhaps phraseology a better would issues an it— open invitation —to trial court to “determine the parameters of what ‘widespread’, ‘sys- constitutes temic,’ ‘pervasive’ or constitutional or harm violations [actual or imminent]!.]”136 say, however,

This is not to that majority does not give very some overt type indications of the of relief that might be appropriate. Early opinion, noting its that relief, the Duncan plaintiffs prohibitory injunctive seek observes, the majority remedy “Such a could potentially entail cessation of criminal indi- prosecutions against gent defendants absent constitutional compliance with the right Having bombshell, to counsel.”137 this dropped the majority later states: acknowledge plaintiffs allege [the Duncan]

We systemic constitutional deficiencies have been caused by inadequate funding state and the lack of fiscal and oversight. that, recognize administrative We further should plaintiffs prevail, funding legislation seemingly would appear to be the measures needed to be taken to correct However, prepared constitutional violations. we are not authority rule on the issue whether the trial court has the appropriations, legislation, comparable to order steps. It unnecessary juncture proceed- to do so at this in the ings.[138]

But the then majority begins to disclaim its disclaim- ers. It states:

135Ante at 255.

136Ante at 303-304.

137Ante at 273.

138Ante at 278-279. 284 Mich APP 246 Dissenting Opinion by Whitbeck, J. only speculate regarding the mea- can at this time

We ultimately into sures needed to be taken order to come constitutions, compliance the state and federal assum- with Only ing [the Duncan] establish their case. when possibilities explored, exhausted and as al- all other are discussed, ready regarding appropria- do there arise issues legislation, separation powers, and the full tions and Therefore, jurisdiction authority. extent of court we conclusively find no need at this time for this Court to said, questions posed. being That we wish to address opinion nothing make clear that in this should be read as foreclosing entry granting type an order so of relief vigorously challenged by defendants.[139] First, majority then elaborates. in the context of 1983, federal law and an action under 42 USC it observes140that under Edelman Jordan: consequences But the fiscal to state in these treasuries enjoined taking [in cases which officials were from certain might impacts actions under circumstances that lead to on necessary compli- state treasuries] such were the result of prospective ance with decrees which their terms were officials, shape nature. State in order to their official decrees, conduct to the mandate of the Court’s more would likely spend money treasury have to from the state than if they pursue previous had been left free to their course of ancillary treasury conduct. Such an effect on the state is a permissible consequence and often an inevitable of the 123; principle parte Young, announced in Ex [209 US 28 S (1908)].[141] 441; 52 L Ct Ed 714 And, sufficient, majority as if that were not goes on to discuss 46th Circuit Trial Court v Co142 Crawford and concludes:

139 added). (emphasis Ante at 280-281 140Ante at 281. 141 Jordan, 651, 667-668; 1347; Edelman v 415 US 94 S Ct 39 L Ed 2d (1974). Co, 131; 46th Circuit Trial Court v 719 NW2d Crawford (2006). Michigan Duncan v Opinion by Dissenting Whitbeck, J. systemic deficiencies there exist constitutional

If indeed right and the to the regard to the to counsel counsel, certainly arguable that it is assistance of effective authority for a court to order Trial Court lends 46th Circuit funding provide at a level that is constitu- defendants obliga- satisfactory. has an tionally The state of with provide defendants tion under Gideon to counsel, comprised of court-appointed and the “state” is 3, branches, including judiciary. art Const three daily basis, Ultimately, judiciary, on a that is § it is the 2. that, ensuring prosecutions integrally before involved counsel, provided forward, indigent go defendants carry court could not out its constitu which the without Musselman[143] responsibilities. did not entail tional here, implications which include that arise constitutional carry ability judicial out its functions branch manner.[144] constitutionally in a sound have it. there, being colloquial, you of And risk majority has issued possible, In the starkest terms ongoing trial court to assume open an invitation to the de- systems providing operational control over defendants in Ber- indigent to criminal fense counsel Genesee, And rien, Muskegon counties. check, to force sufficient state

invitation comes a blank and executive branch legislative appropriations level bring operations point those acquiescence —if satisfies the could ever be achieved —that point such judiciary’s responsi- of the trial court’s determination “constitutionally in a carry bilities to out its functions manner.” sound such an approach of policy implications over- First, such control would

staggering. operational criminal explicit provisions ride the give Second, control would operational defense act. such (1995). 503; Governor, 448 Mich 533 NW2d 237 Musselman 144Ante at 283-284. Dissenting Opinion by J. Whitbeck, the trial court the opportunity, and perhaps even the obligation, nullify the provisions of the indigent crimi- rule, nal defense court thereby superseding the authority of the Supreme Court and the State Court Administrator. Third, vesting such operational in one control circuit court creates the anomaly giving of that circuit court the power to direct some of operations of other, three theoreti- cally coequal, circuit Fourth, courts. judicial the record of operational control of executive branch operations, such prisons145 schools,146 been, charitable, has to be decidedly Fifth, mixed. finally, operational such control is in direct contravention of the basic concept of separation powers.

Moreover, Ias have noted earlier in opinion, this injunctive relief may issue only when there is adequate no remedy at law. their complaint, the Duncan plaintiffs baldly asserted that no such remedy exists147and the majority scarcely upon touches the adequacy of existing legal remedies other than to disclaim the effectiveness postconviction But, review. self-evidently, such a remedy does Strickland, exist. Under a criminal defen- dant whose counsel’s performance at critical stages of the proceeding was so deficient as to cause prejudice to can, criminal defendant postconviction, seek judi- cial and, intervention upon a proper showing, redress. The Duncan plaintiffs, however, seek preconviction intervention and redress without a particularized show- ing irreparable harm, based upon the apprehension injury future or damage. Under circumstances, such declaratory and injunctive relief only is not unwise as a 145 Dep’t 1, Cain v Corrections Dep’t No (2003); Cain v 468 Mich 866 of Corrections, (2002). App 600; 657 NW2d 799 146 Bradley, Milliken v 267; 2749; (1977); 433 US 97 S Ct 53 L Ed 2d 745 Bradley, Milliken v 717; (1974). 3112; 418 US 94 S Ct 41 L Ed 2d 1069 147 (“Plaintiffs ¶ Complaint, law.”). See adequate remedy 153 have no at 385 v Opinion Dissenting Whitbeck, J. Thus, matter of law. as a matter, inappropriate it is

policy and justiciable, claims are not Duncan plaintiffs’ they the relief seek. grant not cannot and should judiciary OF POWERS III. SEPARATION power sweeping judicial majority invokes It of public determine matters in and intervene policy.148 intervention, Legislature that, lacking such asserts to switch power would have the the Governor and this would and that on and off constitution will149 and the Legislature regime in a which usher the law is.”150 “what Governor, judiciary, say not the powers under separation that question There is no the judi- responsibility the ultimate it is principles, first, seeking But those the law is.”151 ciary “say what their claimed must establish intervention judicial concrete, and other- particularized, is injury personal, Rehnquist As Chief Justice judicially wise cognizable.152 v Byrd: said Raines overriding time-honored concern light th[e] In the power proper its consti- keeping Judiciary’s within about urge put the natural sphere, we must aside tutional important dispute and to directly of this proceed to the merits Instead, efficiency. it the sake of convenience “settle” appellees have met carefully inquire as to whether we must injury establishing their claimed burden of their concrete, judicially otherwise personal, particularized, cognizable.[153]

148Ante at 255-256. 149 ; Bush, 255-256, 128 Ct citing 553 US S Boumediene Ante at (2008). 2229, 2259; 171 L Ed 2d 150Ante at 256.

151Marbury, supra at 177. (1997). 2312; 811, 820; L 2d Byrd, 138 Ed US 117 S Ct Raines v 153Id. Dissenting Opinion by Whitbeck, J. Here, plaintiffs Duncan would have the judiciary rush in and “settle” their using claims the swift swords declaratory of and injunctive relief, without a particu- larized showing of irreparable harm and without any showing that there is no adequate remedy at And law. they would judiciary have the grant such relief despite their failure to they show that standing. have In Lee v Comm’rs,154 Macomb Co Bd the Michigan Supreme of Court length discussed at the magnitude of the relation- ship between the standing doctrine and the separation powers of principles: Michigan, [I]n system, as in the standing federal of

great consequence neglect so that imperil of it would constitutional whereby governmental architecture powers are divided government. between the three branches of

Standing, requirement courts, as a to enter the ais venerable doctrine in system the federal that derives from Const, III, 1,§ US art only “judicial which power” confers Const, on the III, courts and from § US art 2’s limitation of judicial power to “Cases” and “Controversies.” In cases, several recent the United Supreme States Court has discussed relationship the close standing between separation powers. of Casey, 343, 349; Lewis 518 US 2174; 116 S Ct 135 L (1996), Ed 2d 606 Scalia, Justice writing majority, for the said:

“The standing doctrine of [is] a principle constitutional prevents courts of law from undertaking tasks as- signed political to the It branches. is the role of courts to provide claimants, relief to actions, individual or class suffered, who have imminently suffer, harm; will actual courts, it is not the branches, role political but that shape government the institutions in such as to fashion comply with the laws and the [Citations Constitution. omitted.]”[155]

154Lee, supra at 735-741.

155Lee, supra added). (emphasis at 735-736 Duncan v Opinion Dissenting Whitbeck, J. indisputably act criminal defense indigent

The But government.” the institutions “shape[s] constitutionality challenge the do not plaintiffs Duncan Rather, they act, facially applied.”156 or “as either of that it off” as it were. it, to “switch to override simply seek “say judiciary do not ask the criminal respect the law is” with what challenge Legislature’s the they do defense act. Nor Rather, reshape to they seek of that statute. enactment find way they defense act criminal indigent the have the essence, they seek to more desirable. the law is. say than what make the law rather judiciary doctrine that the approach to such an precisely It is on, the Early directly applies. of powers separation THOMAS M. COOLEY scholar Justice constitutional great the powers concept separation discussed the the against a mandamus declining to issue context Governor: care government powers have been is one whose

Our departments, fully apportioned between three distinct powers people, have their emanate alike from the which constitution, by equal the are of alike limited and defined respective spheres of action dignity, and within their laws, applies another equally independent. One makes the cases, see that in contested while the third must the laws accepted as a are executed. This division is the laws very apportion necessity governments, and the in all free department is understood to be a power ment of to one others.[157] by either of the prohibition of its exercise matters of Thus, Legislature public the it is —where decided—whose debated and openly openly policy And, by enactment it is to make the law. responsibility of 2005 ^[156] Sutherland In re See PA 71, Request Governor, Mich 1, Advisory Opinion Regarding 11 n 20; 740 NW2d (1874). 444 (2007). Constitutionality 284 MICH 246

Dissenting Opinion J. Whitbeck, act, indigent of the criminal Legislature defense the has that, it just may done has made law. It now be change Indeed, to majority recog- advisable the law. underway But, nizes that there are to do efforts so.158 to date, for good those efforts —whether or bad— reasons have been unsuccessful. The Duncan plaintiffs invite date, judiciary impose changes that, their through advocates have been unable to secure I legislative process. would Again, decline invita- tion.

But does this there mean that is no role for the judiciary within framework of the criminal indigent defense act? Of course not. The Michigan Supreme Court has set out that indigent role criminal defense rule: court the State Court Administrator is to plans provide legal review local services to criminal defendants. That review is to “protect grant I integrity judiciary.” that such a role is clearly glamorous, considerably less more circumspect, modest, more certainly conceivably noble in less expression than the majority role the But espouses. within the context of the criminal defense act the applying principle separation of of powers, it is judiciary’s the proper role nonetheless.

IV CLASS CERTIFICATION I disagree also majority’s the that conclusion the Duncan plaintiffs have properly pleaded a class action suit. may

A of a member class maintain suit as a of all representative the purported members of class if of only each five is following requirements met: ^[158] Ante at 280 n 7. 389 Duncan v Opinion by Dissenting Whitbeck, J. members

(a) joinder of all that is so numerous the class impracticable; (b) common to the law or fact questions of there are questions over predominate that of the class members members; only affecting individual parties (c) representative or defenses of the claims class; claims or defenses typical of the (cid:127) (d) adequately fairly and parties will representative class; protect the interests of assert (e) will be as a class action of action the maintenance adjudication methods of superior to other available justice.[159] of administration promoting the convenient bears class certification requesting The party criteria for demonstrating of initial burden are satisfied.160 a class action certifying numerosity A. class is so numerous factor —that the numerosity not impracticable all members is joinder of —does members, “and minimum number require specific not be known as members need the exact number of sense indicate knowledge and common long general must at least plaintiff But the large.”161 that the class is the number of class members some evidence of “present the num- by reasonable estimate or otherwise establish ber of class members.”162 purchasers Chrysler Corp, plaintiffs,

In Zine v suits, action vehicles, filed class Chrysler proposed new 299,310; App Warren, 3.501(A)(1); 276Mich City see Hill v MCR 261,286-287; (2007); App 236Mich ChryslerCorp, 740NW2d Zine v (1999). 600NW2d384 264Mich Michigan, &Blue Shield Tinman Blue Cross (2004); Zine, 562; supra at 287n 12. 692NW2d 161 Zine, supra at 287-288.

162 Id. at 288. Dissenting Opinion Whitbeck, J. alleging that Chrysler violated the Consumer (MCPA)163 Protection Act by providing “misleading” regarding information Michigan vehicle purchasers’ rights under the state’s lemon laws.164In analyzing whether the plaintiffs met the class action certification requirements, this that, Court noted while not identi- fying a specific number of members, class plaintiffs indicated that the class potentially included “all 522,658 purchasers of Chrysler new products from February 1990, onward.”165Although seemingly suf- 1, ficient satisfy the minimal requirement “present- ing] some evidence of the number of class members or otherwise establishing] by reasonable estimate the number of members,” class this Court held that plaintiffs failed satisfy the numerosity requirement because in order to be a member, class the new car buyers must have suffered actual injury to have stand- ing to sue.166Accordingly, the plaintiffs were required, failed, but to show that “there [was] a sizable number of new car buyers who had seriously defective vehicles lost their right to recovery under Michigan’s lemon law because they were misled by the documents supplied by Chrysler.”167

Here, as stated by the majority, the allege that the purported class that they seek repre- sent is all persons adult who charged have been with or charged

bewill with felonies in the District and Circuit Berrien, Genesee, Courts of Muskegon Counties and rely rely who or will on the provide Counties to them with seq. MCL 445.901 et 164 Zine, supra 265. 165 Id. at 288.

166 Id.

167 Id. at 288-289. Duncan v Dissenting Opinion Whitbeck, J.

defense services. The Class includes all adults against felony charges brought in whom criminal will be Berrien, Genesee, Muskegon during the Counties action.[168] pendency of this majority summarily

The concludes that this purported sufficiently joinder “is numerous to make of each class But, in impractical.”169 keeping class member with the analysis, disagree. Zine I As I have concluded earlier in opinion, this have failed to show they imminently that themselves have suffered or will an injury, by failing suffer actual to show actions or inactions the state and the Governor have caused or will cause denial of their Sixth Amendment rights. Therefore, concomitantly, the purported class they seek to represent indigent adult persons —all rely rely who or will on the provide counties to them felony with defense services in cases—also fails to adequately identify a sufficiently class, by numerous failing identify class members who have suffered injury actual and therefore have standing to sue. Ac- I cordingly, would conclude that the trial court erred in

granting the Duncan plaintiffs’ motion for class certifi- cation.

B. COMMONALITY AND SUPERIORITY plaintiff Because a satisfy must each factor of the class action analysis, certification and failure on one factor certification, mandates overall failure of I need not continue to the remaining However, address factors. I comment on these factors to stress the impropriety and impracticality allowing a class action for the alleged. claims

168 See ante at 330.

[169] Ante at 330-331. 284 MICH Opinion by Dissenting Whitbeck, J. commonality questions factor —that there are

law or fact common to the members of the class that predominate questions affecting only over individual “requires that ‘the issues the class action members — subject generalized that are and thus proof, appli- whole, predominate cable to the class as a must over those issues that are subject only individualized ”170Notably, the proof.’ commonality factor ties with superiority factor —the maintenance of the action as a class action will be to other superior available meth- ods of adjudication promoting the convenient admin- justice istration of that if questions individual —“in fact predominate questions, over common the case will unmanageable be as a class action.”171 Zine, common question was whether Chrysler’s new car documents violated the MCPA.172 However, that, this Court explained assuming even plaintiffs prevailed question, on that “the trial court would have to for determine each class member who purchased had a new vehicle whether the vehicle was bought primarily personal, family, or household use[;] plaintiff whether the had a defective vehicle and reported dealer, defect to the manufacturer or had the vehicle for a reasonable or repairs, number was law, unaware of Michigan’s lemon read the documents supplied by Chrysler, and was led to believe that Michi- law, did gan not have a lemon and chose not to pursue 170Zine, 289, supra quoting Beach, 1546, Kerr v Palm West 875 F2d (CA 1989). 11, 1557-1558 3.501(A)(2)(c) Zine, supra citing (stating at 289 n MCR that to determine whether the maintenance of action as a class action will be superior adjudication promoting to other available methods of justice, convenient administration the court must consider “whether action”). manageable the action will be as a class 172Zine, supra at 289. Duncan v Dissenting by Opinion Whitbeck, J. remedy under the lemon of that law because belief.”173 According to the Zine factual panel, inquiries, “[t]hese subject only all of which were individualized proof, the one predominate question over common and would render the unmanageable case as a class action.”174

Here, majority it, as the presents ques common tions are there widespread “whether have been systemic violations, constitutional whether the viola being by tions were and are caused deficiencies county indigent systems, defense sys whether the temic deficiencies were and are attributable to or re sulted from the action or inaction of defendants.”175 And majority concedes that “this action will require contemplation of specific instances of deficient perfor mance and instances of the actual or constructive denial of counsel... The majority then inexplicably goes ,”176 on to conclude that “[a]ny evidence indi concerning prosecutions vidual has bearing no on particular those criminal cases and the remedies, available appellate except to the extent of any effect on a pending case caused a systemwide remedy resulting from an order judgment rendered in this action. The evidence pertaining to prosecutions individual merely consti piece tutes a in the larger puzzle relative to establishing a basis for prospective, systemwide relief.”177 I Candidly, do not logic. follow this line of

Nevertheless, in attempting to understand the ma- jority’s I reasoning, note that I agree the common question here is “whether systemic the deficiencies were and are attributable to or resulted from the action or

173 (citations omitted). Id. at 290 174Id.

175Ante at 331.

176Ante at 331.

177Ante at 331-332. 284 Mich APP 246 Dissenting Opinion by Whitbeck, J. However, I majority, unlike the

inaction of defendants.” been question not see the “whether there have do constitutional violations” as widespread systemic and factual common to all mem- being question[] “broad contrary, the determination bers the class.”178To the widespread systemic there have been such whether necessarily require constitutional violations will trial court to look at countless cases from each three counties to examine whether and how individual suffered violations of their indigent defendants have Likewise, rights. determining constitutional “whether being the violations were and are caused deficiencies county systems” in the defense will require trial court to look at untold numbers individual cases to examine the cause for the violations. purported unwilling presume Unlike the I am majority, every alleged deficiency every indigent criminal de- alleged fendant’s case is the result of the deficiencies in Indeed, county indigent systems. defense it is con- attorneys ceivable that even with the best available could, myriad reasons, resources for a fail to provide Moreover, adequate representation. majority, unlike the I cannot fact significance overlook that this action will consideration of thou- require potentially of specific performance sands instances of deficient actual or constructive denial of counsel.179

178Ante at 331. also, James, 12, 20; example, See Mich Neal 651 NW2d (2002): reviewing representatives the claims of each of the class case, present apparent only question it is common

presented is whether the individuals involved were discriminated against may because of their race. these individuals How have against been discriminated does not involve common issues of fact law, highly questions. but individualized The individual factual reviewed, pertinent plaintiff circumstances to each will need to be individual, fact-specific inquires will need to made in be Duncan v Dissenting Opinion by Whitbeck, J. sum, Zine, In potentially necessary as the indi- factual inquiries predominate vidual here over the common and render the question unmanageable case And, Neal, a class action. as in plaintiffs the Duncan shown, show, conceivably have not and cannot a “spe- or policy practice that the state and the Governor cific” follow in order to satisfy commonality requirement. Again, this is so because the plaintiffs Duncan based their against entire case the state and the Governor on generalized definition, assertions of inaction. By such actionable, inaction cannot be an specific policy or I practice. would therefore conclude that the trial court

erred in determining that the Duncan plaintiffs satis- fied the requirements of MCR 3.501 for the certification aof class action.

V CONCLUSION I fundamentally disagree with the majority’s conclu- sions, and the rationale supporting conclusions, those respect to the justiciability of the Duncan plain- tiffs’ claims and appropriateness of the declaratory and injunctive relief that the Duncan I seek. further disagree with the majority’s conclusions, and the rationale supporting conclusions, those concerning class action certification. majority concludes that the Duncan plaintiffs’

claims are justiciable. To reach conclusion, majority, ostensibly while disavowing Strickland, im- plicitly adopts square peg of the Strickland postcon- analytical viction framework and then twists it suffi- ciently it force into the round hole of the evaluating why promoted, certain individuals were not hired or or

why discharged other individuals were or not retained. Plaintiffs simply any have specific policy not shown that there was practice satisfy “commonality” followed defendants requirement under MCE 3.501. 284 Mich Opinion by Dissenting Whitbeck, J. ineffective assistance claims of plaintiffs’ preconviction word, essence, using and without of counsel. that, alone, standing holding renders a majority and conjectural their despite plaintiffs’ claims — nature, showing lack of a that despite their hypothetical and the Governor has caused inaction of the state the describe, to despite their failure they situation will redress that that a favorable decision show standing, se to establish per sufficient situation —are and, therefore, disagree. I As I justiciability. ripeness, Duncan plaintiffs in this opinion, noted earlier alleged by failures assert that the plausibly cannot defi- alleged and the Governor have caused the state level because there is no cient at the local performance sum, we way they possibly can such causation. prove legal regard- conclusions solely generalized are left carry presumption that should not ing causation being proved and that are dis- incapable truth proved.

And, stated, II dissent there can be no Luckey as the in the of prejudice Sixth Amendment violation absence prejudice at a trial. And because is an essen- particular violation, Sixth any tial element of Sixth Amendment adjudicated apart Amendment claims cannot be from Here, the particular circumstances of a case. Dun- justiciable can have not stated claims plaintiffs appropriately neither the trial court nor this Court can finding prejudice per make a se. the relief the Duncan respect

With seek, this majority repeatedly declines to address majori- directly. implications issue But the broad majority’s admits ty’s opinion opinion are clear. potentially relief could entail cessation such against indigent defendants prosecutions criminal Genesee, counties, Berrien, Muskegon absent con- Duncan v Dissenting Opinion Whitbeck, J. compliance stitutional with the to counsel. The majority’s opinion invites the trial court to assume ongoing operational control systems over the current for providing counsel criminal defendants Berrien, Genesee, and Muskegon and, counties if nec- essary, to force sufficient state legislative level appro- priations and executive branch acquiescence to bring those operations to a point such point could ever —if be achieved —that satisfies the trial court’s determina- tion of the judiciary’s responsibilities carry out its functions in a “constitutionally sound manner.”

And we should not be deceived. State operation and funding of legal services in Berrien, Genesee, and Muskegon counties will inevitably lead to the operation and funding of such services throughout state, overriding provisions of the indigent criminal de- fense act and the indigent criminal defense court rule. Indeed, this is the ultimate relief that the Duncan plaintiffs seek. only

Not are the policy and fiscal implications of such a situation staggering, it is blackletter injunc- law that tive relief may issue only when there is no adequate remedy at Self-evidently, law. such a remedy exists here. Strickland, Under if the show, can postconviction, that their counsel’s performance at critical stages of the proceeding was so deficient as to prejudice cause them, they judicial can seek interven- tion and redress. The sweeping preconviction declara- tory and injunctive relief that the Duncan plaintiffs seek is simply inappropriate, and a proper respect for the basic concept separation of of powers requires the judiciary decline to issue such relief.

I should note that were I a member of Legisla- ture, I might well vote for a system that would have the state assume some or all of the expense of defending 284 MICH Opinion by Dissenting Whitbeck, J. I I do so because accused of crimes. would persons

poor right to counsel that constitutional well aware of the am in 1963 and the constitutional enunciated Gideon in 1984. enunciated counsel that Strickland to effective mind that our state has my question There is little landmark under these obligations met its fully not as have other publicly, I have so stated decisions. judiciary.180 members of the I am a Legislature. But I am not a member court, error-correcting not a an intermediate member of I that the reach of firmly one. And believe policy-setting is, the grasp; exceed its should not judiciary refrain from modesty requires us to judicial of concept and executive legislative functions that assuming constitutionally re- equipped, are best branches though the I conclude that —even quired, to undertake. 180 1986, in his State of Chief Justice G. Mennen Williams, system equal justice, saying Judiciary speech, for a statewide of called only fully implemented system ... and it can “remains to be that such financing.” Legal fully through Aid & implemented state National be Sys Association, Indigent Defense Evaluation of Trial Level Defender Savings Michigan: Speed and Over Due A to the Bottom: tems in Race (June 2008), Similarly, p 11. Chief Process: A Constitutional Crisis urged “step in and the state to relieve Justice Riley Dorothy Comstock meet,” they point she made a burden could not afford to the counties of 1992, Judiciary speeches. Id. In again State of the in her 1988 Michigan Bar Cavanagh in his to the forward Chief Justice Michael stated, system, Michigan’s “[I]t is on defense Journal’s edition Rights Anniversary of the Bill as we mark the 200th unfortunate that important guarantees, same time witness the we at the and extol its all, significant guarantees, adequately failure to secure those society.” segments And in Chief Justice James Id. at 12. Brickley Michigan: report A Supreme entitled Justice in Court’s released People Michigan Report the Justices to the from declared, things: Court, among other “The Supreme the Court which judicial system, including core costs of the court state should assume the staff, process benefits, due and benefits of court salaries and the salaries representation, including indigent and the cost of costs the cost of added). (emphasis technology.”Id. at 11-12 information statewide Duncan Dissenting Opinion J. Whitbeck, state and the virtually Governor concede the inadequa- cies of the Michigan system current crimi- nal defense —the trial court erred when it denied the state and the Governor’s motion for summary disposi- 2.116(C)(8) tion under MCR and, consequently, when it granted plaintiffs’ the Duncan motion for class certifi- cation. I would therefore reverse and remand for the entry of summary disposition favor of the state and the Governor.

Case Details

Case Name: Duncan v. State

Court Name: Michigan Court of Appeals

Date Published: Jun 11, 2009

Citation: 774 N.W.2d 89

Docket Number: Docket 278652, 278858, and 278860

Court Abbreviation: Mich. Ct. App.