# Duncan v. State

> Michigan Court of Appeals · June 11, 2009 · 284 Mich. App. 246

URL: https://www.frixlaw.com/law-library/cases/1667069

## Case

- **Full name:** Duncan v. State of Michigan
- **Court:** Michigan Court of Appeals
- **Decided:** June 11, 2009
- **Citations:** 284 Mich. App. 246; 774 N.W.2d 89
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Murphy, Sawyer, Whitbeck
- **Cited by:** 31 later opinions in the Frix Law Library

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## Opinion text

774 N.W.2d 89 (2009)
284 Mich. App. 246
DUNCAN
v.
STATE of Michigan.
Docket Nos. 278652, 278858, 278860.
Court of Appeals of Michigan.
Submitted December 9, 2008, at Detroit.
Decided June 11, 2009, at 9:00 a.m.
*97 American Civil Liberties Union Fund of Michigan (by Michael J. Steinberg, Mount Clemens, Kary L. Moss, and Mark P. Fancher), Detroit and by Mark Granzotto, P.C. (by Mark R. Granzotto, Royal Oak), Frank D. Eaman PLLC (by Frank D. Eaman), Harper Woods, and Cravath, Swaine & Moore LLP (by Julie A. North and Elizabeth Kennedy), and American Civil Liberties Union Foundation (by Robin Dahlberg and Emily Chiang), for the plaintiffs.
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and Denise C. Barton, Margaret A. Nelson, Ann M. Sherman, and Jason R. Evans, Assistant Attorneys General, for the defendants.
Before: MURPHY, P.J., and SAWYER and WHITBECK, JJ.
MURPHY, P.J.
At its core, this case involves a claim that the named plaintiffs, along with members of the certified class, i.e., present and future indigent defendants subject to felony prosecutions in the trial courts of Berrien, Genesee, and Muskegon counties, have been, are being, and will be denied their state and federal constitutional rights to counsel and the effective assistance of counsel, Const. 1963, art. 1, § 20, and U.S. Const., Am. VI, directly as a result of the court-appointed, indigent defense systems currently being employed by those counties. According to plaintiffs, even though the counties and the circuit court chief judges have been statutorily delegated the duties associated with providing representation for indigent criminal defendants, the state of Michigan and the Governor, defendants in this suit, ultimately remain legally responsible for securing and protecting the constitutional rights at issue. And plaintiffs assert that the constitutionally deficient county systems were born out of and created by defendants inadequate funding and lack of fiscal and administrative oversight. They further allege that the systemic constitutional deficiencies in regard to indigent representation continue to infect the judicial process and are directly attributable to defendants constitutional failures, which can and must be redressed by court action.
In Docket No. 278652, defendants appeal as of right the trial courts order denying under MCR 2.116(C)(7) their motion for summary disposition based on governmental immunity. In Docket No. 278858, defendants appeal by leave granted the trial courts order denying their motion for summary disposition on numerous theories, including various justiciability doctrines. Finally, in Docket No. 278860, defendants appeal by leave granted the trial courts order granting class certification. The appeals were consolidated.
We affirm, holding that defendants are not shielded by governmental immunity, that defendants are proper parties, that *98 the trial court, not the Court of Claims, has jurisdiction, and that the trial court has jurisdiction and authority to order declaratory relief, prohibitory injunctive relief, and some level of mandatory injunctive relief, the full extent of which we need not presently define. We further hold that, on the basis of the pleadings and at this juncture in the lawsuit, plaintiffs have sufficiently alleged facts that, if true, establish standing, establish that the case is ripe for adjudication, and state claims upon which declaratory and injunctive relief can be awarded. Finally, we hold that the trial court properly granted the motion for class certification.
We preface our opinion by observing that the role of the judiciary in our tripartite system of government entails, in part, interpreting constitutional language, applying constitutional requirements to the given facts in a case, safeguarding constitutional rights, and halting unconstitutional conduct. For state and federal constitutional provisions to have any meaning, we may and must engage in this role even where litigation encompasses conduct by the executive and legislative branches. We cannot accept the proposition that the constitutional rights of our citizens, even those accused of crimes and too poor to afford counsel, are not deserving and worthy of any protection by the judiciary in a situation where the executive and legislative branches fail to comply with constitutional mandates and abdicate their constitutional responsibilities, either intentionally or neglectfully. If not the by courts, then by whom? We are not ruling that a constitutional failure has in fact occurred here, but it has been alleged and needs to be judicially addressed. This, however, does not mean that we may set public policy, make political judgments, or demand that more efficient or desirable means be utilized by the political branches in carrying out their constitutional obligations. But if a chosen path taken by the executive and legislative branches in an effort to satisfy their constitutional obligations allegedly fails to meet minimum constitutional requirements, the judiciary must examine the allegations and adjudicate the dispute. The judiciary by so intervening is not acting with a lack of judicial modesty or in violation of the separation of powers; it is acting in accordance with its constitutional obligations, duties, and oaths of office. See Boumediene v. Bush, 553 U.S. ___ , ___, 128 S.Ct. 2229, 2259 , 171 L.Ed.2d 41, 77 (2008); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-180 , 2 L.Ed. 60 (1803). Failing to do so results in the political branches' effectively deciding "what the law is," Boumediene and Marbury, supra, impinging on the judiciary's role in violation of the separation of powers. Judicial modesty does not equate to ignoring constitutional obligations. Constitutional compliance is our only concern; matters regarding the method and the manner by which the executive and legislative branches effectuate constitutional demands are not our concern, nor can they be, as long as the branches abide by the state and federal constitutions. In that same vein, and with respect to the particular issues raised in this action, concerns about costs and fiscal impact, concerns regarding which governmental entity or entities should bear the costs, and concerns about which governmental body or bodies should operate an indigent defense system cannot be allowed to prevail over constitutional compliance, despite any visceral reaction to the contrary. We take no position on the validity of plaintiffs' allegations and claims, nor are the underlying motivations of any party relevant. We simply and merely hold that plaintiffs have alleged facts sufficient to survive a motion for summary disposition.
*99 I. THE COMPLAINT
In a highly detailed complaint, plaintiffs allege that the indigent defense systems now in place in Berrien, Genesee, and Muskegon counties are underfunded, poorly administered, and do not ensure that the participating defense attorneys have the necessary tools, time, and qualifications to adequately represent indigent defendants and to put the cases presented by prosecutors to the crucible of meaningful adversarial testing. Plaintiffs assert that the county systems are wholly lacking with respect to the following: client eligibility standards; attorney hiring, training, and retention programs; written performance and workload standards; the monitoring and supervision of appointed counsel; conflict of interest guidelines; and independence from the judiciary and prosecutorial offices. Plaintiffs claim harm in the form of improperly denied representation, wrongful convictions, unnecessary or prolonged pretrial detentions, factually unwarranted guilty pleas, lengthy pretrial delays, and the introduction of inadmissible evidence that could have been excluded had pretrial motions been filed. Plaintiffs claim further harm in the form of representation by counsel who have conflicts of interest, sentences that are harsher than warranted or legally unsound, and hearing and trial failures due to unprepared counsel and the lack of inquiry, investigation, investigatory tools, and access to expert witnesses. The complaint provides numerous examples in support of these contentions.
The complaint proceeds to provide specific instances of alleged deficient and inadequate performances by various court-appointed attorneys with respect to the eight named indigent plaintiffs. As an overview, these alleged instances include: counsel speaking with plaintiffs, for the first time, in holding cells for mere minutes before scheduled preliminary examinations while in full hearing range of other inmates; counsel advising plaintiffs to waive preliminary examinations without meaningful discussions of case-relevant matters; counsel failing to provide plaintiffs with police reports; and counsel generally neglecting throughout the entire course of criminal proceedings to discuss with plaintiffs the accuracy and nature of the charges, the circumstances of the purported crimes, and any potential defenses. Further alleged instances include: counsel entering into plea negotiations without client input or approval; counsel perfunctorily advising plaintiffs to plead guilty as charged absent meaningful investigation and inquiry; counsel improperly urging plaintiffs to admit facts when pleas were taken; and counsel neither preparing for hearings and trials nor engaging in any communications with plaintiffs concerning trials. The complaint alleges that other indigent defendants being prosecuted or who will be prosecuted in the future face the same prospects of receiving inadequate and ineffective assistance of counsel as that received by the named plaintiffs.
With respect to all the named plaintiffs, as well as all those persons fitting within the class, the complaint alleges that the inadequacies and ineffectiveness of counsel in handling indigent cases ultimately result from failures by the state and the Governor to adequately provide funding and fiscal and administrative oversight. According to plaintiffs, it is the failures by the state and the Governor that have caused, are causing, and will continue to cause a denial of constitutionally adequate legal representation within the systems employed by the counties. Count I of the complaint, which pertains only to the Governor, alleges a Sixth Amendment violation of the right to effective or adequate representation and seeks declaratory and injunctive relief for the constitutional violation *100 under 42 U.S.C. § 1983 . Count II of the complaint, which also pertains only to the Governor, alleges a Fourteenth Amendment violation of the right to due process and seeks declaratory and injunctive relief for the constitutional violation under 42 U.S.C. § 1983 . Count III of the complaint, which pertains to the Governor and the state, alleges a violation of the right to the effective assistance of counsel under Const. 1963, art. 1, § 20, and seeks declaratory and injunctive relief. Count IV of the complaint, which also pertains to the state and the Governor, alleges a violation of due process under Const. 1963, art. 1, § 17, and seeks declaratory and injunctive relief.
In the prayer for relief, plaintiffs seek a court declaration that defendants conduct, failure to act, and practices are unconstitutional and unlawful, consistent with the four alleged counts, and plaintiffs seek to enjoin defendants from subjecting class members to continuing unconstitutional practices. Plaintiffs also request an order requiring defendants "to provide indigent defense programs and representation consistent with the requirements of the United States and Michigan Constitutions."
II. CLASS CERTIFICATION AND SUMMARY DISPOSITION
Pursuant to MCR 3.501(B), plaintiffs moved for class certification, contending that the class was sufficiently numerous to the extent that joinder would be impractical, that factual and legal issues raised by the named plaintiffs were common to, and typical of, prospective class members, that the named plaintiffs and prospective class members share or will share similar harms and constitutional deprivations, and that the named plaintiffs would fairly and adequately protect the interests of the class through maintenance of a class action, which would be superior to any other method of adjudication.
Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8). Defendants maintained that plaintiffs lacked standing, the case was not ripe for adjudication, the trial court lacked jurisdiction on a variety of grounds, there was a failure to state a claim upon which declaratory and injunctive relief could be granted, the wrong parties were sued, and governmental immunity shielded defendants from liability. The nature of each particular argument will be discussed below in our analysis, given that defendants arguments were renewed on appeal.
At a hearing in which the trial court addressed plaintiffs motion for class certification as well as defendants motion for summary disposition, the court granted class certification and rejected all the grounds raised by defendants in support of the summary disposition motion. We shall discuss the courts reasoning when we examine each of the appellate issues raised by defendants.
III. ANALYSIS
A. STANDARDS OF REVIEW
This Court reviews de novo a trial courts decision on a motion for summary disposition. Kreiner v. Fischer, 471 Mich. 109, 129 , 683 N.W.2d 611 (2004). Also reviewed de novo are issues of constitutional law, Wayne Co. v. Hathcock, 471 Mich. 445, 455 , 684 N.W.2d 765 (2004), statutory interpretation, Feyz v. Mercy Mem. Hosp., 475 Mich. 663, 672 , 719 N.W.2d 1 (2006), governmental immunity, Bennett v. Detroit Police Chief, 274 Mich. App. 307, 310-311 , 732 N.W.2d 164 (2006), jurisdiction, Atchison v. Atchison, 256 Mich.App. 531, 534 , 664 N.W.2d 249 (2003), and matters concerning justiciability, Michigan Chiropractic Council v. Comm'r *101 of the Office of Financial & Ins. Services, 475 Mich. 363, 369 , 716 N.W.2d 561 (2006).
"A trial court's ruling regarding certification of a class is reviewed for clear error, meaning that the ruling will be found clearly erroneous only where there is no evidence to support it or there is evidence but this Court is nevertheless `left with a definite and firm conviction that a mistake has been made.'" Hill v. City of Warren, 276 Mich.App. 299, 310 , 740 N.W.2d 706 (2007), quoting Zine v. Chrysler Corp., 236 Mich.App. 261, 270 , 600 N.W.2d 384 (1999).
B. UNDERLYING CONSTITUTIONAL PRINCIPLES
1. THE RIGHT TO COUNSEL GENERALLY
"In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence." U.S. Const., Am. VI. The right to counsel under the Sixth Amendment is made applicable to the states pursuant to the Due Process Clause of the Fourteenth Amendment. People v. Williams, 470 Mich. 634, 641 , 683 N.W.2d 597 (2004), citing Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963). Under the Michigan Constitution, "[i]n every criminal prosecution, the accused shall have the right to . . . have the assistance of counsel for his or her defense[.]" Const. 1963, art. 1, § 20. Gideon made clear that the indigent are constitutionally entitled to be represented by counsel when prosecuted for a crime by the state, even though they lack the financial means to hire an attorney, and that the state has an obligation to provide them counsel. Gideon, supra at 344, 83 S.Ct. 792 . We wholeheartedly agree with the following wise sentiments articulated by the United States Supreme Court in Gideon:
The assistance of counsel is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.... The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not ... be done.
... [R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. [ Id. at 343-344, 83 S.Ct. 792 (parenthesis, citations, and *102 quotation marks omitted; second ellipsis added).]
2. THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL
The constitutional right to counsel encompasses the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). In United States v. Cronic, 466 U.S. 648, 654-656 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), the United States Supreme Court explained:
The special value of the right to the assistance of counsel explains why "[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel." The text of the Sixth Amendment itself suggests as much. The Amendment requires not merely the provision of counsel to the accused, but "Assistance," which is to be "for his defence." Thus, "the core purpose of the counsel guarantee was to assure `Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." If no actual "Assistance" "for" the accused's "defence" is provided, then the constitutional guarantee has been violated. To hold otherwise "could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment."
* * *
The substance of the Constitution's guarantee of the effective assistance of counsel is illuminated by reference to its underlying purpose. "[T]ruth," Lord Eldon said, "is best discovered by powerful statements on both sides of the question." This dictum describes the unique strength of our system of criminal justice. "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." It is that "very premise" that underlies and gives meaning to the Sixth Amendment. It "is meant to assure fairness in the adversary criminal process." Unless the accused receives the effective assistance of counsel, "a serious risk of injustice infects the trial itself." [Citations omitted.]
3. THE RIGHT TO COUNSEL AT CRITICAL STAGES OF THE PROCEEDINGS, INCLUDING PRETRIAL STAGES
"The Sixth Amendment safeguards the right to counsel at all critical stages of the criminal process for an accused who faces incarceration." Williams, supra at 641 , 683 N.W.2d 597 . A critical stage of the proceedings is any stage where the absence of counsel may harm a defendant's right to a fair trial and "applies to preliminary proceedings where rights may be sacrificed or defenses lost." People v. Green, 260 Mich.App. 392, 399 , 677 N.W.2d 363 (2004), overruled on other grounds People v. Anstey, 476 Mich. 436 , 447 n. 9, 719 N.W.2d 579 (2006). Critical stages include, in part, the preliminary examination, Coleman v. Alabama, 399 U.S. 1, 9 , 90 S.Ct. 1999 , 26 L.Ed.2d 387 (1970), a pretrial lineup, People v. Frazier, 478 Mich. 231 , 249 n. 20, 733 N.W.2d 713 (2007), and the entry of a plea, People v. Pubrat, 451 Mich. 589, 593-594 , 548 N.W.2d 595 (1996). In Maine v. Moulton, 474 U.S. 159, 170 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985), the United States Supreme Court observed:
*103 [T]he Court has ... recognized that the assistance of counsel cannot be limited to participation in a trial; to deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself. Recognizing that the right to the assistance of counsel is shaped by the need for the assistance of counsel, we have found that the right attaches at earlier, "critical" stages in the criminal justice process "where the results might well settle the accused's fate and reduce the trial itself to a mere formality." And, "[w]hatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him...." This is because, after the initiation of adversary criminal proceedings, "`the government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.'" [Citations omitted; emphasis and initial ellipsis added.]
When read together, the authorities cited above make abundantly clear that representation by counsel, and thus effective representation by counsel, is crucial in serving to protect Sixth Amendment rights not only at trial but also during pretrial proceedings.
4. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS IN CRIMINAL APPELLATE PROCEEDINGS
In the context of criminal cases and appeals, our Supreme Court in People v. Carbin, 463 Mich. 590, 599-600 , 623 N.W.2d 884 (2001), enunciated the basic and well-established principles involving a claim of ineffective assistance of counsel:
To justify reversal under either the federal or state constitutions, a convicted defendant must satisfy the two-part test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). See People v. Pickens, 446 Mich. 298, 302-303 , 521 N.W.2d 797 (1994). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not performing as the `counsel' guaranteed by the Sixth Amendment." Strickland, supra at 687 , 104 S.Ct. 2052 . In so doing, the defendant must overcome a strong presumption that counsel's performance constituted sound trial strategy. Id. at 690 , 104 S.Ct. 2052 . "Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 687 , 104 S.Ct. 2052 . To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 694 , 104 S.Ct. 2052 . "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because the defendant bears the burden of demonstrating both deficient performance and prejudice, the defendant necessarily bears the burden of establishing the factual predicate for his claim. See People v. Hoag, 460 Mich. 1, 6 , 594 N.W.2d 57 (1999).
Counsel's performance is deemed deficient or ineffective when the "representation [falls] below an objective standard of reasonableness." Strickland, supra at 688 , 104 S.Ct. 2052 ; People v. Toma, 462 Mich. 281, 302 , 613 N.W.2d 694 *104 (2000). The two-part Strickland test, cited in Carbin , takes center stage in addressing the justiciability claims, where defendants vigorously argue for its application in this civil suit seeking declaratory and prospective injunctive relief. In our justiciability analysis, we will also explore the circumstances in which the prejudice prong of the Strickland test is inapplicable.
C. DISCUSSION
1. GOVERNMENTAL IMMUNITY
Defendants argue that governmental immunity bars plaintiffs' "tort" claims against the state because they do not come within an exception to the broad grant of immunity afforded by MCL 691.1407(1). Defendants also contend that absolute immunity bars plaintiffs claims against the Governor under MCL 691.1407(5). The trial court ruled that governmental immunity is not available in a state court action alleging constitutional violations.
Under MCR 2.116(C)(7), summary disposition in favor of a defendant is proper when the plaintiff's claim is "barred because of ... immunity granted by law...." See Odom v. Wayne Co., 482 Mich. 459, 466 , 760 N.W.2d 217 (2008). The moving party may submit affidavits, depositions, admissions, or other documentary evidence in support of the motion if substantively admissible. Id. The contents of the complaint must be accepted as true unless contradicted by the documentary evidence. Id.
a. THE STATE
The governmental tort liability act (GTLA), MCL 691.1401 et seq., provides a broad grant of immunity from "tort liability" to governmental agencies, absent the applicability of a statutory exception, [1] when they are engaged in the discharge or exercise of a governmental function. MCL 691.1407(1); Maskery v. Univ. of Michigan Bd. of Regents, 468 Mich. 609, 613 , 664 N.W.2d 165 (2003); Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 595 , 363 N.W.2d 641 (1984). The state of Michigan is a "governmental agency" entitled to immunity as granted under the GTLA. MCL 691.1401(c) and (d). An activity that is expressly or impliedly authorized or mandated by constitution, statute, local charter, ordinance, or other law constitutes a governmental function for purposes of the GTLA. Maskery, supra at 613-614 , 664 N.W.2d 165 , quoting MCL 691.1401(f). This Court gives the term "governmental function" a broad interpretation, but the statutory exceptions must be narrowly construed. Maskery, supra at 614 , 664 N.W.2d 165 . The "immunity protects the state not only from liability, but also from the great public expense of having to contest a trial." Odom, supra at 478 , 760 N.W.2d 217 . The party that seeks to impose liability on a governmental entity has the burden of pleading in avoidance of governmental immunity. Mack v. Detroit, 467 Mich. 186, 198 , 649 N.W.2d 47 (2002).
Here, there can be no reasonable dispute that the state was engaged in a governmental function when it delegated the representation of indigent defendants to the various counties. [2] Moreover, it is *105 the state that is ultimately mandated to ensure that indigent defendants are provided their constitutional right to counsel. Gideon, supra ; Williams, supra at 641 , 683 N.W.2d 597 .
Our Supreme Court has "observed that nontort causes of action are not barred by immunity if a plaintiff successfully pleads and establishes such a cause of action." Borg-Warner Acceptance Corp. v. Dep't of State, 433 Mich. 16, 19 , 444 N.W.2d 786 (1989) (emphasis in original). Further, in Smith v. Dep't of Pub. Health, 428 Mich. 540, 544 , 410 N.W.2d 749 (1987), aff'd sub nom Will v. Michigan Dep't of State Police, 491 U.S. 58 , 109 S.Ct. 2304 , 105 L.Ed.2d 45 , (1989), the Michigan Supreme Court held:
[ ] Where it is alleged that the state, by virtue of custom or policy, has violated a right conferred by the Michigan Constitution, governmental immunity is not available in a state court action.
[ ] A claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases.
See also Jones v. Powell, 462 Mich. 329, 336 , 612 N.W.2d 423 (2000).
State policies are at the forefront of this litigation. "`Governmental immunity is not available in a state court action where it is alleged that the state has violated a right conferred by the Michigan Constitution.'" Hinojosa v. Dep't of Natural Resources, 263 Mich.App. 537, 546-547 , 688 N.W.2d 550 (2004), quoting Burdette v. Michigan, 166 Mich.App. 406, 408 , 421 N.W.2d 185 (1988). An action that establishes unconstitutional conduct "may not be limited except as provided by the Constitution because of the preeminence of the Constitution." Hinojosa, supra at 546 , 688 N.W.2d 550 , citing Smith, supra at 641 , 410 N.W.2d 749 (opinion by BOYLE, J.). In Smith, id., Justice BOYLE observed in her opinion concurring in part and dissenting in part:
MCL 691.1407; MSA 3.996(107) does not, by its terms, declare immunity for unconstitutional acts by the state. The idea that our Legislature would indirectly seek to "approve" acts by the state which violate the state constitution by cloaking such behavior with statutory immunity is too far-fetched to infer from the language of MCL 691.1407; MSA 3.996(107). We would not ascribe such a result to our Legislature.
The Burdette panel reiterated those sentiments from Smith in addressing a due process challenge, further reasoning:
Plaintiffs' claim alleged that defendant violated plaintiffs' due process rights under Const. 1963, art. 1, § 17. Plaintiffs have stated a prima facie claim.... [D]efendant cannot claim immunity where the plaintiff alleges that defendant has violated its own constitution. Constitutional rights serve to restrict *106 government conduct. These rights would never serve this purpose if the state could use governmental immunity to avoid constitutional restrictions. [ Burdette, supra at 408-409 , 421 N.W.2d 185 .]
The instant claims against the state are based solely on alleged violations of the Michigan Constitution and concern custom and policy matters with respect to the representation of indigent defendants. Moreover, plaintiffs' lawsuit against the state is not a "tort liability" action. Accordingly, the state is not shielded by immunity granted by law in this suit seeking declaratory and injunctive relief for constitutional violations. The state, however, characterizes plaintiffs' claims as "constitutional tort" claims for money damages and thus claims that governmental immunity bars the action. The state argues that plaintiffs are actually seeking appropriations or money from the state treasury, making plaintiffs' action one for money damages or monetary relief. A cause of action seeking money damages for a violation of state constitutional rights has been coined a "state constitutional tort action." See Jones v. Sherman, 243 Mich.App. 611, 612 , 625 N.W.2d 391 (2000). Typically, a constitutional tort claim arises when a governmental employee, exercising discretionary powers, violates constitutional rights personal to a plaintiff. Reid v. Michigan, 239 Mich.App. 621, 629 , 609 N.W.2d 215 (2000).
We initially note that, as indicated above, "[a] claim for damages against the state arising from violation by the state of the Michigan Constitution may be recognized in appropriate cases." Smith, supra at 544 , 410 N.W.2d 749 ; see also Powell, supra at 336 , 612 N.W.2d 423 . Nevertheless, defendants inaccurately characterize plaintiffs' claims, where the gravamen of the lawsuit concerns the adequacy of representation for indigent defendants and prays for equitable relief; this is not a tort liability action for money damages, nor do plaintiffs request an appropriation of state funds. Plaintiffs seek a court declaration that defendants' practices are unconstitutional, seek to enjoin continuing unconstitutional practices, and seek to compel the state and the Governor to provide indigent defendants representation consistent with the state and federal constitutions. Assuming that the state would incur an unfavorable fiscal impact as the ultimate result of the proceedings, it does not magically transform the case, for purposes of the GTLA, from an equitable action into a tort liability action seeking a money judgment or monetary relief. See, e.g., Edelman v. Jordan, 415 U.S. 651, 666-668 , 94 S.Ct. 1347 , 39 L.Ed.2d 662 (1974) (a fiscal consequence to state treasuries resulting from compliance with equitable decrees, which by their terms are prospective in nature, is an ancillary effect and does not mean that a money judgment had been entered). The state has cited no convincing or even relevant authority making the GTLA applicable in this equitable action. Accordingly, the trial court properly concluded that governmental immunity is not available to the state.
b. THE GOVERNOR
With respect to the Governor, MCL 691.1407(5) provides:
A judge, a legislator, and the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority. [Emphasis added.]
"The executive power is vested in the governor[,]" Const. 1963, art. 5, § 1; therefore, there can be no dispute that the *107 Governor is the highest executive official in state government. Additionally, this lawsuit necessarily relates to duties within the scope of the Governor's executive authority, given that "[t]he governor shall take care that the laws be faithfully executed[,]" Const. 1963, art. 5, § 8. Further, in regard to the scope of executive authority, this suit potentially affects issues of state funding, and Const. 1963, art. 5, § 18, provides that "[t]he governor shall submit to the legislature at a time fixed by law, a budget for the ensuing fiscal period setting forth in detail, for all operating funds, the proposed expenditures and estimated revenue of the state." However, for the reasons stated earlier in this opinion with respect to the state, this is not a tort liability action seeking money damages. Accordingly, MCL 691.1407(5) provides no immunity for the Governor.
2. JURISDICTION AND AUTHORITY TO ORDER VARIOUS FORMS OF INJUNCTIVE RELIEF
a. MANDAMUS AND THE GOVERNOR
Defendants argue, in cursory fashion, that the trial court lacks jurisdiction to order injunctive relief with respect to the Governor. On this issue, the trial court ruled that Michigan law cannot immunize the Governor from federal claims under preemption principles and that the Governor is not immune from state law claims because the suit does not entail tort liability. As is evident, the trial court somewhat treaded on governmental immunity principles discussed earlier in this opinion.
In support of their contention that injunctive relief cannot issue against the Governor, defendants cite only Straus v. Governor, 459 Mich. 526, 532-533 , 592 N.W.2d 53 (1999), in which the Supreme Court, quoting and adopting this Court's opinion in the case, stated:
"We would also note that, because a court at all times is required to question sua sponte its own jurisdiction (whether over a person, the subject matter of an action, or the limits on the relief it may afford), we have some doubt with respect to the propriety of injunctive relief against the Governor. It is clear that separation of powers principles, Const. 1963, art. 3, § 2, preclude mandatory injunctive relief, mandamus, against the Governor. Whether similar reasoning also puts prohibitory injunctive relief beyond the competence of the judiciary appears to be an open question that need not be resolved in this case. We do note that the Supreme Court has recently recognized that declaratory relief normally will suffice to induce the legislative and executive branches, the principal members of which have taken oaths of fealty to the constitution identical to that taken by the judiciary, Const. 1963, art. 11, § 1, to conform their actions to constitutional requirements or confine them within constitutional limits. Only when declaratory relief has failed should the courts even begin to consider additional forms of relief in these situations. The need for utmost delicacy on the part of the judiciary, and respect for the unique office of Governor, [has been] recognized [by this Court.]" [Citations omitted.]
In part, plaintiffs seek declaratory relief, and the quoted passage from Straus makes clear that the courts have the authority to issue a declaratory judgment against the Governor, which should be the first course of action before even contemplating injunctive relief. Plaintiffs also seek to enjoin continuing unconstitutional practices or, stated otherwise, prohibitory injunctive relief. Such a remedy could *108 potentially entail a cessation of criminal prosecutions against indigent defendants absent constitutional compliance with the right to counsel. Straus indicates that the Court was not resolving the question whether the judiciary is constrained from ordering prohibitory injunctive relief against the Governor and, given that defendants do not present any additional arguments on the issue, we decline to find that the trial court lacks authority or jurisdiction to enjoin the Governor from continuing unconstitutional practices. In regard to the issue of mandatory injunctive relief (mandamus), plaintiffs do seek to compel the Governor to provide indigent defendants with representation that is consistent with the state and federal constitutions. As will be discussed later in this opinion, we believe that there may exist a basis to subject the Governor to a mandamus order under Michigan law in regard to state constitutional violations if this case reflects the existence of impediments to the ability of the judiciary to carry out its duties in compliance with constitutional principles relative to indigent defendants being prosecuted in state courtrooms. However, we need not specifically answer the question because the Governor is also being sued for alleged federal constitutional violations under 42 U.S.C. § 1983 , which allows for mandatory injunctive relief. [3] A review of Straus reveals that it did not involve a claim brought under 42 U.S.C. § 1983 alleging a violation of a federal constitutional right. 42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. [Emphasis added.]
Even though a state official is a "person" in the literal sense, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office[, and,] [a]s such, it is no different from a suit against the State itself." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 , 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989) (citations omitted). However, "a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'" Will, supra at 71 n. 10, 109 S.Ct. 2304 , quoting Kentucky v. Graham, 473 U.S. 159 , 167 n. 14, 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985), and citing Ex parte Young, 209 U.S. 123, 159-160 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908); see also Hafer v. Melo, 502 U.S. 21, 27 , 112 S.Ct. 358 , 116 L.Ed.2d 301 (1991). The suit against the Governor qualifies as an *109 official-capacity suit, id. at 24, 27 , 112 S.Ct. 358 , and the action seeks equitable relief in the form of a declaratory judgment and an injunction, thereby providing prospective relief. The Governor can thus be sued for injunctive relief under 42 U.S.C. § 1983 , which makes clear that equitable relief is available for a federal constitutional violation and that, if there is any limitation on granting injunctive relief, the limitation pertains only to judicial officers. See Van Orden v. Perry, 545 U.S. 677 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005) (Texas resident commenced § 1983 action against the governor and other state officials, seeking declaratory relief and an injunction that would require the removal of the Ten Commandments from the capitol on the basis of an Establishment Clause violation). There is no language in 42 U.S.C. § 1983 suggesting that equitable relief in the form of a mandatory injunction or mandamus is not available against the Governor, or that there is a distinction to be made between prohibitory injunctive relief and mandatory injunctive relief.
In Felder v. Casey, 487 U.S. 131, 139 , 108 S.Ct. 2302 , 101 L.Ed.2d 123 (1988), the United States Supreme Court made clear the broad reach of a § 1983 action, stating:
Section 1983 creates a species of liability in favor of persons deprived of their federal civil rights by those wielding state authority. As we have repeatedly emphasized, "the central objective of the Reconstruction-Era civil rights statutes ... is to ensure that individuals whose federal constitutional or statutory rights are abridged may recover damages or secure injunctive relief." Thus, § 1983 provides "a uniquely federal remedy against incursions ... upon rights secured by the Constitution and laws of the Nation," and is to be accorded "a sweep as broad as its language."
Any assessment of the applicability of a state law to federal civil rights litigation, therefore, must be made in light of the purpose and nature of the federal right. This is so whether the question of state-law applicability arises in § 1983 litigation brought in state courts, which possess concurrent jurisdiction over such actions, or in federal-court litigation, where, because the federal civil rights laws fail to provide certain rules of decision thought essential to the orderly adjudication of rights, courts are occasionally called upon to borrow state law. Accordingly, we have held that a state law that immunizes government conduct otherwise subject to suit under § 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy, which of course already provides certain immunities for state officials. [Citations omitted; ellipses in original.]
Accordingly, any state law (statutory, constitutional, or common law) that can be read to exclude the Governor from being compelled to act, or otherwise subjected to any type of injunction, is preempted when a suit for equitable relief is brought against the Governor pursuant to 42 U.S.C. § 1983 for violation of the federal constitution, regardless of the fact that the suit is litigated in a state court.
b. APPROPRIATIONS FROM THE STATE TREASURY
Defendants also argue that only the Legislature, as opposed to the trial court or any court, has the authority or jurisdiction to appropriate funds from the state treasury. In support of their position, defendants rely on Musselman v. Governor, 448 Mich. 503 , 533 N.W.2d 237 (1995). In Musselman , the plaintiffs, current and retired *110 public school employees who were members of the Michigan Public School Employees Retirement System, alleged that the state had failed to fund retirement health care benefits being earned by employees, thereby violating Const. 1963, art. 9, § 24. The plaintiffs sought a "writ of mandamus ordering the appropriate official to transfer funds from the school aid fund to the reserve for health benefits." Musselman, supra at 521 , 533 N.W.2d 237 . Our Supreme Court held that the state was constitutionally "obligated to prefund health care benefits under art. 9, § 24." Musselman, supra at 524 , 533 N.W.2d 237 . The Court, however, denied mandamus, ruling that it had "no authority to order the Governor or the Legislature to appropriate funds[.]" Id. The Musselman Court reasoned:
Given that the plaintiffs have failed to show that there is a pool of funds available to be transferred to the reserve for health benefits, the requested relief necessarily involves funds from the state treasury. The only defendant with authority to appropriate funds from the treasury is the Legislature. "No money shall be paid out of the state treasury except in pursuance of appropriations made by law." Const. 1963, art. 9, § 17.
In this context, this Court lacks the power to require the Legislature to appropriate funds. This was the understanding of the drafters of art. 9, § 24, who likewise did not contemplate that the prefunding requirement could be enforced by a court. They expected that the decision to comply rested ultimately with the Legislature, whom the people would have to trust[.] [ Musselman, supra at 522 , 545 N.W.2d 346 .][ [4] ]
It appears to us that equally problematic would be a court order directing the enactment of legislation or administrative rules, or the issuance of executive or administrative orders, in order to correct any constitutional deficiencies in the court-appointed, indigent defense systems. See Const. 1963, art. 4, § 1 ("The legislative power of the State of Michigan is vested in a senate and a house of representatives."); Const. 1963, art. 5, § 17 ("The governor shall communicate by message to the legislature at the beginning of each session and may at other times present to the legislature information as to the affairs of the state and recommend measures he considers necessary or desirable.)" [5]
Here, again, plaintiffs seek a court declaration that defendants' practices are unconstitutional, seek to enjoin continuing unconstitutional practices, and seek to compel defendants to provide indigent defendants representation consistent with the state and federal constitutions. In the prayer for relief, plaintiffs are not expressly seeking an appropriation or transfer of state funds, nor expressly demanding the enactment of legislation. We acknowledge *111 that plaintiffs allege that the systemic constitutional deficiencies have been caused by inadequate state funding and the lack of fiscal and administrative oversight. We further recognize that, should plaintiffs prevail, funding and legislation would seemingly appear to be the measures needed to be taken to correct constitutional violations. However, we are not prepared to rule on the issue whether the trial court has the authority to order appropriations, legislation, or comparable steps. It is unnecessary to do so at this juncture in the proceedings.
There is no dispute that declaratory relief is an available remedy falling within the trial courts jurisdiction and authority. As indicated in Straus, supra at 532 , 592 N.W.2d 53 , "`[o]nly when declaratory relief has failed should the courts even begin to consider additional forms of relief[.]'" (Citation omitted.) With respect to the state constitutional claims, which are the only claims brought against the state, should plaintiffs prevail, declaratory relief alone needs to be initially contemplated. And if the state takes corrective action without further need for intervention by the trial court, injunctive relief and the authority to issue constitutionally questionable forms of such relief would no longer be at issue. Additionally, while 42 U.S.C. § 1983 does not place a limit on a court to first attempt resolution through a declaratory judgment alone, it is possible that upon entry of a declaratory judgment, the Governor would take corrective measures to comply with constitutional requirements. [6] Accordingly, the issue of injunctive relief may never come to fruition.
Furthermore, defendants do not argue that the trial court lacks authority or jurisdiction to enjoin them from continuing unconstitutional practices; therefore, there is the potential that constitutional compliance could occur through issuance of prohibitory injunctive relief, without reaching questions concerning mandatory injunctive relief or mandamus or compelling defendants to act by way of appropriations or legislation.
Additionally, other than defendants' argument that injunctive relief can never issue against the Governor, which argument we rejected earlier in this opinion, defendants do not contend that the judiciary lacks the authority or jurisdiction to enter an order compelling, in broad and general terms, compliance with constitutional mandates. Defendants' argument merely decries court intervention in the appropriation of funds from the state treasury. However, the entry of an order simply compelling the state and the Governor to provide indigent defendants representation consistent with the state and federal constitutions does not necessarily mean that the state is being required by the court to appropriate funds to come into compliance. Theoretically, there may be creative alternatives available to satisfy constitutional mandates concerning the right to counsel.
We can only speculate at this time regarding the measures ultimately needed to be taken in order to come into compliance with the state and federal constitutions, assuming plaintiffs establish their case. [7] *112 Only when all other possibilities are exhausted and explored, as already discussed, does there arise issues regarding appropriations and legislation, the separation of powers, and the full extent of court jurisdiction and authority. Therefore, we find no need at this time for this Court to conclusively addressed the questions posed. That being said, we wish to make clear that nothing in this opinion should be read as foreclosing entry of an order granting the type of relief so vigorously challenged by defendants. We take that stand for two reasons. First, unlike in Musselman , federal constitutional violations are alleged here and brought pursuant to 42 U.S.C. § 1983 . 1In the context of federal law, and keeping in mind the broad reach of a § 1983 action, we note the following passage from the United States Supreme Court's decision in Edelman, supra at 667-6681 , 94 S.Ct. 1347 :
As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night. The injunction issued in Ex parte Young was not totally without effect on the State's revenues, since the state law which the Attorney General was enjoined from enforcing provided substantial monetary penalties against railroads which did not conform to its provisions. Later cases from this Court have authorized equitable relief which has probably had greater impact on state treasuries than did that awarded in Ex parte Young. In Graham v. Richardson, 403 U.S. 365 [ 29 L.Ed.2d 534 , 91 S.Ct. 1848 ] (1971), Arizona and Pennsylvania welfare officials were prohibited from denying welfare benefits to otherwise qualified recipients who were aliens. In Goldberg v. Kelly, 397 U.S. 254 , [ 90 S.Ct. 1011 , 25 L.Ed.2d 287 ] (1970), New York City welfare officials were enjoined from following New York State procedures which authorized the termination of benefits paid to welfare recipients without prior hearing. But the fiscal consequences to state treasuries in these cases were the necessary result of compliance with decrees which by their terms were prospective in nature. State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct. Such an ancillary effect on the state treasury is a permissible and often an inevitable consequence of the principle announced in Ex parte Young, supra. [Emphasis added.]
Our second reason for not accepting outright defendants' arguments is the Michigan Supreme Court's decision in 46th Circuit Trial Court v. Crawford Co., 476 Mich. 131 , 719 N.W.2d 553 (2006). The case involved "a conflict between the legislative branch's exercise of the `legislative power' to appropriate and to tax, and the judicial branch's inherent power to compel sufficient appropriations to allow the judiciary to carry out its essential judicial functions." Id. at 134 , 719 N.W.2d 553 . The plaintiff trial court sought to compel "counties to appropriate funding for the enhanced pension and retiree health care plans it deem[ed] necessary to recruit and *113 retain adequate staff to allow it to carry out its essential judicial functions." Id.
The Supreme Court indicated that the judiciary has the extraordinary and inherent power to compel funding, which power is derived from the separation of powers set forth in articles 4 through 6 and article 3, § 2, of the 1963 Michigan Constitution. 46th Circuit Trial Court at 140-141, 719 N.W.2d 553. The Court explained:
[J]ust as it is implicit in the separation of powers that each branch of government is empowered to carry out the entirety of its constitutional powers, and only these powers, it is also implicit that each branch must be allowed adequate resources to carry out its powers. Although the allocation of resources through the appropriations and taxing authorities lies at the heart of the legislative power, and thus belongs to the legislative branch, in those rare instances in which the legislature's allocation of resources impacts the ability of the judicial branch to carry out its constitutional responsibilities, what is otherwise exclusively a part of the legislative power becomes, to that extent, a part of the judicial power. ...
In order for the judicial branch to carry out its constitutional responsibilities as envisioned by Const 1963, art. 3, § 2, the judiciary cannot be totally beholden to legislative determinations regarding its budgets. While the people of this state have the right to appropriations and taxing decisions being made by their elected representatives in the legislative branch, they also have the right to a judiciary that is funded sufficiently to carry out its constitutional responsibilities.
Thus, the judiciary's "inherent power" to compel appropriations sufficient to enable it to carry out its constitutional responsibilities is a function of the separation of powers provided for in the Michigan Constitution. The "inherent power" does not constitute an exception to the separation of powers; rather, it is integral to the separation of powers itself. What is exceptional about the judiciary's "inherent power" is its distinctiveness from more traditional exercises of the judicial power, involving as it does determinations that directly implicate the appropriations power.
However, in order to accommodate this distinctive, and extraordinary, judicial power with the normal primacy of the legislative branch in determining levels of appropriations, the "inherent power" has always been sharply circumscribed. The "inherent power" contemplates only the power, when an impasse has arisen between the legislative and judicial branches, to determine levels of appropriation that are " reasonable and necessary" to enable the judiciary to carry out its constitutional responsibilities. However, levels of appropriation that are optimally required for the judiciary remain always determinations within the legislative power. [ 46th Circuit Trial Court at 142-144, 719 N.W.2d 553 (emphasis added and in original).]
If indeed there exist systemic constitutional deficiencies in regard to the right to counsel and the right to the effective assistance of counsel, it is certainly arguable that 46th Circuit Trial Court lends authority for a court to order defendants to provide funding at a level that is constitutionally satisfactory. The state of Michigan has an obligation under Gideon to provide indigent defendants with court-appointed counsel, and the "state" is comprised of three branches, including the judiciary. Const. 1963, art. 3, § 2. Ultimately, it is the judiciary, on a daily basis, that is integrally involved with ensuring that, before prosecutions go forward, *114 indigent defendants are provided counsel, without which the court could not carry out its constitutional responsibilities. Musselman did not entail the constitutional implications that arise here, which include the ability of the judicial branch to carry out its functions in a constitutionally sound manner.
In sum, we reiterate that we decline at this time to define the full extent of the trial court's equitable authority and jurisdiction beyond that recognized and accepted earlier in this opinion. [8]
3. JURISDICTION: COURT OF CLAIMS VERSUS THE CIRCUIT COURT
Defendants contend that the Court of Claims has exclusive jurisdiction over this case. The trial court determined that defendants had relied on cases involving tort claims for money damages in making this jurisdictional argument and, because plaintiffs are seeking prospective relief that is purely equitable, the case did not belong in the Court of Claims.
MCL 600.6419 provides in pertinent part:
(1) Except as provided in [MCL 600.6419a] and [MCL 600.6440], the jurisdiction of the court of claims, as conferred upon it by this chapter, shall be exclusive.... The court has power and jurisdiction:
(a) To hear and determine all claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state and any of its departments, commissions, boards, institutions, arms, or agencies.
* * *
(4) This chapter shall not deprive the circuit court of this state of jurisdiction over ... proceedings for declaratory or equitable relief, or any other actions against state agencies based upon the statutes of this state in such case made and provided, which expressly confer jurisdiction thereof upon the circuit court....
To interpret MCL 600.6419 correctly, it must be read in conjunction with MCL 600.6419a, which provides, in full:
In addition to the powers and jurisdiction conferred upon the court of claims by section 6419, the court of claims has concurrent jurisdiction of any demand for equitable relief and any demand for a declaratory judgment when ancillary to a claim filed pursuant to section 6419. The jurisdiction conferred by this section is not intended to be exclusive of the jurisdiction of the circuit court over demands for declaratory and equitable relief conferred by [MCL 600.605].
In Parkwood Ltd. Dividend Housing Ass'n v. State Housing Dev. Auth., 468 Mich. 763, 775 , 664 N.W.2d 185 (2003), our Supreme Court construed these provisions and held:
Today we hold that pursuant to the plain language of § 6419(1)(a), the Court of Claims has exclusive jurisdiction over complaints based on contract or tort that seek solely declaratory relief against the state or any state agency. We disavow *115 any contrary statements found in our prior case law that have seemingly interpreted § 6419(1)(a) as granting the Court of Claims jurisdiction over claims for money damages only.
Consistent with our discussion earlier in this opinion, plaintiffs' complaint is not based on tort, and it is indisputable that it is not based on contract. The Parkwood Court interpreted MCL 600.6419(4) "as maintaining the jurisdiction of the circuit court over those declaratory claims against the state that do not involve contract or tort." Parkwood, supra at 774 , 664 N.W.2d 185 (emphasis added). The Court further stated:
This jurisdiction of the circuit court is concurrent with the jurisdiction of the Court of Claims over such claims in the circumstances set out in § 6419a, see n 7. That is, when such a declaratory action is ancillary to another claim within the Court of Claims exclusive jurisdiction under § 6419, the circuit court and the Court of Claims have concurrent jurisdiction over the declaratory action. [ Parkwood, supra at 774 n. 10, 664 N.W.2d 185 .]
Footnote 7 in Parkwood, supra at 772 , 664 N.W.2d 185 , referenced in the preceding quotation, provides:
We construe the enactment of § 6419a as having added to this jurisdiction by clarifying that the Court of Claims also has jurisdiction over other declaratory and equitable claims, specifically, those that relate neither to contract nor tort-over which the circuit court would otherwise have exclusive jurisdiction-when those claims are ancillary to a claim within the court's exclusive jurisdiction under § 6419. [Emphasis in original.]
Thus, the Court of Claims, while having exclusive jurisdiction over complaints based on contract or tort that seek solely declaratory relief against the state, also has concurrent jurisdiction over complaints seeking declaratory and equitable relief not based on tort or contract if ancillary to a contract or tort claim. Because there is no contract or tort claim whatsoever here, the Court of Claims has neither exclusive nor concurrent jurisdiction. The trial court did not err by ruling that the instant case does not belong in the Court of Claims.
4. PROPER PARTIES TO THE LITIGATION
Defendants argue that the action should have been filed against the judiciary and the counties that administer the indigent criminal defense systems. The trial court found that even though defendants have essentially delegated their constitutional duties to the counties, it does not ultimately relieve defendants of their constitutional responsibilities.
Under MCL 775.16, a circuit court's chief judge is responsible for procuring representation for indigent defendants and county treasurers are obligated to pay reasonable compensation to appointed attorneys. In re Recorder's Court Bar Ass'n v. Wayne Circuit Court, 443 Mich. 110, 122 , 503 N.W.2d 885 (1993). However, it would be erroneous to assume "that the statutory purpose underlying assigned counsels' right to reasonable compensation was to assure that indigent criminal defendants received effective assistance of counsel." Id. at 123 , 503 N.W.2d 885 . "Appointed counsel had a statutory right to reasonable compensation for services provided to criminal indigent defendants long before indigent criminal defendants had a right, statutory or otherwise, to appointed counsel." Id. at 123-124 , 503 N.W.2d 885 .
In Frederick v. Presque Isle Co. Circuit Judge, 439 Mich. 1, 15 , 476 *116 N.W.2d 142 (1991), our Supreme Court stated that all courts are part of Michigan's one court of justice under Const. 1963, art. 6, § 1; however, "the Legislature retains power over the county and may delegate to the local governments certain powers," which it did by enacting a statute that directs certain actions of chief judges and county treasurers, MCL 775.16. Thus, the counties do not have any independent constitutional obligation, apart from the state, to pay for the representation of indigent defendants. Rather, their obligations arise solely out of state statute and, as indicated in In re Recorder's Court, supra at 123-124, 503 N.W.2d 885 , the purpose of the statute was not to secure the constitutional right to counsel. The counties could be sued for failure to comply with MCL 775.16; however, that is not the basis or thrust of the instant suit, nor do defendants cite any joinder rules or law requiring plaintiffs to include the counties as parties. Indeed, defendants themselves have not sought to join the counties as parties to the suit under the court rules, MCR 2.204 to 2.206. Regardless, we agree with the trial court's assessment that, even though the counties have been given responsibility for the operation and funding of trial courts through the Legislature's delegation powers, including payment of court-appointed counsel for 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 the suit against defendants.
With respect 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. Additionally, MCR 8.123(B), which applies to all trial courts, [9] provides that the courts "must adopt a local administrative order that describes the court's procedures for selecting, appointing, and compensating counsel who represent indigent parties in that court." An order must be submitted to the State Court Administrator for review, and the State Court Administrator must approve the plan "if its provisions will protect the integrity of the judiciary." MCR 8.123(C). Moreover, the judiciary is of course a branch of state government. See Grand Traverse Co. v. Michigan, 450 Mich. 457, 473 , 538 N.W.2d 1 (1995) ("courts have always been regarded as part of state government" despite county funding). Accordingly, the judiciary or the courts in the three counties could have been named as defendants in this action. However, again, defendants cite no joinder rules or laws that required plaintiffs to include the courts in the suit; it was a matter of choice for plaintiffs. And, once again, defendants are not somehow relieved of their constitutional duties and entitled to dismissal even if the courts were or should have been sued.
5. JUSTICIABILITY AND STATEMENT OF A CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF
Defendants argue that plaintiffs lack standing and that their claims are not ripe for adjudication because the preconviction ineffectiveness claims are too remote, speculative, and abstract to warrant the issuance of declaratory and injunctive relief. Defendants also contend that plaintiffs failed to state a claim on which relief may be granted, considering that they have an adequate remedy at law in the form of individual criminal appeals. Defendants rely chiefly on Strickland and its two-part test relative to claims of ineffective *117 assistance of counsel. Defendants posit that the need to show injury or harm, relative to justiciability, necessarily equates to establishing deficient performance of counsel and satisfying the prejudice prong of an ineffective assistance claim typically applicable in criminal appeals, which prejudice, and therefore justiciable harm, can only be based on the rendering of an unreliable verdict, compromising the right to a fair trial. Preconviction ineffectiveness, standing alone, is simply insufficient 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 trial. Therefore, in the context of this civil suit claiming a Sixth Amendment infringement, the injury or harm needed to make the case justiciable requires satisfaction of the same two elements and that has not been shown.
The trial court found that plaintiffs had standing and that their claims were ripe for adjudication, rejecting the argument that convictions or the complete denial of counsel were necessary to litigate the case. With respect to Strickland , the court indicated that it was unsure whether Strickland had any application to plaintiffs' 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 case. Thus, the trial court concluded that plaintiffs had stated a claim on which relief could be granted.
a. JUSTICIABILITY GENERALLY
Both the state and federal constitutions confer only "judicial power" on the courts, U.S. Const., art. III, § 1, and Const. 1963, art. 3, § 2, and the United States Constitution expressly provides that judicial power is limited to cases and controversies, U.S. Const., art. III, § 2. Michigan Chiropractic, supra at 369 , 716 N.W.2d 561 . In order to prevent the judiciary from usurping the power of coordinate branches of government, our Supreme Court and the federal courts have developed justiciability doctrines to ensure that lawsuits filed in the courts are appropriate for judicial action, and these "include the doctrines of standing, ripeness, and mootness." Id. at 370-371 , 716 N.W.2d 561 . Federal courts have held that standing and mootness are constitutionally derived doctrines and jurisdictional in nature, given that failure to satisfy the elements of these doctrines implicates the constitutional authority of the courts to only exercise judicial power and to solely adjudicate actual cases or controversies. Id. at 371 , 716 N.W.2d 561 . Michigan caselaw has similarly viewed the justiciability doctrines as affecting judicial power, "the absence of which renders the judiciary constitutionally powerless to adjudicate [a] claim." Id. at 372 , 716 N.W.2d 561 .
In Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 614-615 , 684 N.W.2d 800 (2004), our Supreme Court explained the concept of "judicial power," stating:
The "judicial power" has traditionally been defined by a combination of considerations: the existence of a real dispute, or case or controversy; the avoidance of deciding hypothetical questions; the plaintiff who has suffered real harm; the existence of genuinely adverse parties; the sufficient ripeness or maturity of a case; the eschewing of cases that are moot at any stage of their litigation; the ability to issue proper forms of effective relief to a party; the avoidance of political questions or other non-justiciable controversies; the avoidance of unnecessary constitutional issues; and the emphasis upon proscriptive as opposed to prescriptive decision making.
*118 With respect to the proper exercise of the "judicial power," the most critical element is the mandate that there exist a genuine case or controversy between the parties, meaning that the dispute between the parties is real, not hypothetical. Michigan Citizens for Water Conservation v. Nestlé Waters North America Inc., 479 Mich. 280, 293 , 737 N.W.2d 447 (2007).
b. STANDING PRINCIPLES
On the doctrine of standing, the Supreme Court in Michigan Citizens, supra at 294-295 , 737 N.W.2d 447 , quoting Nat'l Wildlife, supra at 628-629 , 684 N.W.2d 800 , quoting Lee v. Macomb Co. Bd. of Comm'rs, 464 Mich. 726, 739 , 629 N.W.2d 900 (2001), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992), stated that the following three elements must be proven:
First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. [Quotation marks and ellipses omitted.]
c. RIPENESS PRINCIPLES
With regard to the doctrine of ripeness, it precludes the adjudication of hypothetical or contingent claims before an actual injury has been sustained, and an action is not ripe if it rests on contingent future events that may not occur as anticipated or may not occur at all. Michigan Chiropractic, supra at 371 n. 14, 716 N.W.2d 561 . Although standing and ripeness are both justiciability doctrines that assess pending claims to discern whether an actual or imminent injury in fact is present, they address different underlying concerns. Id. at 378-379 , 716 N.W.2d 561 . The standing doctrine "is designed to determine whether a particular party may properly litigate the asserted claim for relief." Id. at 379 , 716 N.W.2d 561 . On the other hand, the ripeness doctrine "does not focus on the suitability of the party; rather, ripeness focuses on the timing of the action." Id. (emphasis in original).
d. DECLARATORY RELIEF
With respect to declaratory judgment actions, MCR 2.605(A)(1), (C), and (F) respectively provide as follows:
In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.
* * *
The existence of another adequate remedy does not preclude a judgment for declaratory relief in an appropriate case.
* * *
Further necessary or proper relief based on a declaratory judgment may be granted, after reasonable notice and hearing, against a party whose rights have been determined by the declaratory judgment.
The "actual controversy" requirement found in MCR 2.605(A)(1) has been described as "`a summary of justiciability *119 as the necessary condition for judicial relief.'" Associated Builders & Contractors v. Dept. of Consumer & Industry Services Director, 472 Mich. 117, 125 , 693 N.W.2d 374 (2005), quoting Allstate Ins. Co. v. Hayes, 442 Mich. 56, 66 , 499 N.W.2d 743 (1993). A court cannot declare the obligations and rights of parties regarding an issue if the issue is not justiciable, meaning that it does not entail a genuine, live controversy between interested persons who are asserting adverse claims, which, if decided, can affect existing legal relations. Associated Builders, supra at 125, 693 N.W.2d 374 , quoting Allstate Ins, supra at 66, 499 N.W.2d 743 .
e. INJUNCTIVE RELIEF
Finally, in regard to injunctive relief, an injunction constitutes an extraordinary remedy that may be issued only when justice requires it, there is an absence of an adequate remedy at law, and there exists the danger of irreparable injury that is real and imminent. Pontiac Fire Fighters Union Local 376 v. City of Pontiac, 482 Mich. 1, 8 , 753 N.W.2d 595 (2008).
f. JUSTICIABILITY FRAMEWORK
In constructing the broad analytical framework for addressing the justiciability issues in connection with the particular allegations made by plaintiffs, we find guidance in Lewis v. Casey, 518 U.S. 343 , 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996). In Lewis , the respondents were 22 inmates imprisoned in various facilities operated by the Arizona Department of Corrections (ADOC), and they filed a class action on behalf of all adult prisoners who were currently or will be incarcerated by the ADOC, alleging deprivations of their fundamental constitutional right of access to the courts. Id. at 346 , 116 S.Ct. 2174 . The action was brought in reliance on Bounds v. Smith, 430 U.S. 817, 828 , 97 S.Ct. 1491 , 52 L.Ed.2d 72 (1977), in which it was held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." See Lewis, supra at 346 , 116 S.ct. 2174. Following a three-month bench trial in Lewis , the federal district court ruled in favor of the respondents, concluding that the respondents had a constitutional right of access to the courts that is meaningful, adequate, and effective, and that the ADOC's system failed to comply with these constitutional standards. The district court tailored an injunctive remedy that was sweeping in scope, ensuring that the ADOC would provide meaningful court access. The United States Court of Appeals for the Ninth Circuit affirmed, with minor exceptions related to the terms of the injunction. Id. at 346-348 , 116 S.ct. 2174.
On certiorari granted, the petitioners argued that, in order to establish a Bounds violation, an inmate needed to show that any alleged inadequacy of a prison's law library facilities or legal assistance programs caused an actual injury, or in other words, "`actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim.'" Id. at 348, 116 S.Ct. 2174 . The petitioners further argued that the district court failed to find sufficient instances of actual injury that would warrant systemwide relief. Id. The Supreme Court held:
We agree that the success of respondents' systemic challenge was dependent on their ability to show widespread actual injury, and that the court's failure to identify anything more than isolated instances of actual injury renders its finding of a systemic Bounds violation invalid. [ Id. at 349, 116 S.Ct. 2174 .]
*120 The United States Supreme Court then proceeded to provide the underlying rationale and reasoning for its holding:
The requirement that an inmate alleging a violation of Bounds must show actual injury derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches. It is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution. In the context of the present case: It is for the courts to remedy past or imminent official interference with individual inmates' presentation of claims to the courts; it is for the political branches of the State and Federal Governments to manage prisons in such fashion that official interference with the presentation of claims will not occur. Of course, the two roles briefly and partially coincide when a court, in granting relief against actual harm that has been suffered, or that will imminently be suffered, by a particular individual or class of individuals, orders the alteration of an institutional organization or procedure that causes the harm. But the distinction between the two roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly. If—to take another example from prison life—a healthy inmate who had suffered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medical care simply on the ground that the prison medical facilities were inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons. [ Id. at 349-350, 116 S.Ct. 2174 (citations omitted).]
We derive much from this passage. It indicates that inmates do not sustain harm, for purposes of justiciability analysis and the constitutional right of access to the courts, simply because of their status as inmates in the prison system and their exposure to the possibility of being denied meaningful court access because of the institution's lack of proper management and organization. There needs to be interference with the presentation of a claim to the court, just as inmates must first be ill and in need of prison medical treatment before being able to claim deprivation of a constitutional right to medical care. By analogy, here criminal defendants do not sustain harm, for purposes of justiciability analysis and the constitutional right to the effective assistance of counsel, simply because of their status as indigent defendants with court-appointed counsel subject to prosecutorial proceedings in a system with presumed existing deficiencies. There needs to be an instance of deficient performance or inadequate representation, i.e., "representation [falling] below an objective standard of reasonableness." Strickland, supra at 688 , 104 S.Ct. 2052 ; Toma, supra at 302 , 613 N.W.2d 694 . Lewis does not indicate that the harm must include, besides interference with the right of access to the courts, a showing that the inmate would have been successful in court had access been made available. This proposition is further reflected in the Lewis Court's subsequent observations with respect to actual harm:
Because Bounds did not create an abstract, freestanding right to a law library or legal assistance, an inmate cannot *121 establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense. That would be the precise analog of the healthy inmate claiming constitutional violation because of the inadequacy of the prison infirmary. Insofar as the right vindicated by Bounds is concerned, "meaningful access to the courts is the touchstone," and the inmate therefore must go one step further and demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint. [ Lewis, supra at 351 , 116 S.Ct. 2174 (citation omitted).]
There is no suggestion in the two examples that the hypothetical inmate had to show that the dismissed or unfiled complaint would likely have resulted in a favorable court outcome following litigation; interference, by itself, with a person's attempt to access the court, if access is not sought frivolously, suffices to establish harm. See id. at 353 , 116 S.Ct. 2174 . [10]
The Lewis Court went on to find that the district court had identified only two instances of actual injury, and the Court then turned to the issue whether those two injuries justified the remedy ordered by the district court. Id. at 357 , 116 S.Ct. 2174 . The Court noted that the remedy 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 is just as applicable with respect to class actions. Id. According to Lewis , standing is necessary in class actions and named plaintiffs representing the class must allege and show personal injury. Id. The Lewis Court concluded that there was a failure to show that the constitutional violations were systemwide; therefore, granting a remedy beyond what was necessary to provide relief to the two injured inmates was improper. Id. at 360 , 116 S.Ct. 2174 . Nevertheless, the message that flows from Lewis is that in cases where systemwide constitutional violations are proven, prospective equitable relief to prevent further violations is a proper 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 to succeed, they must prove widespread and systemic constitutional violations that are actual or imminent, constituting the harm necessary to establish justiciability. In addressing this appeal and the justiciability issues, we find that, on the basis of the posture of the lower court proceedings, our attention needs to be directed solely at the allegations in plaintiffs' complaint. In Lewis, supra at 357-358 , 116 S.Ct. 2174 , the Supreme Court, quoting Lujan, supra at 561 , 112 S.Ct. 2130 , made the following observations:
The general allegations of the complaint in the present case may well have sufficed to claim injury by named plaintiffs, *122 and hence standing to demand remediation, with respect to various alleged inadequacies in the prison system, including failure to provide adequate legal assistance to non-English-speaking inmates and lockdown prisoners. That point is irrelevant now, however, for we are beyond the pleading stage.
"Since they are not mere pleading requirements, but rather an indispensable part of the plaintiff's case, each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim. In response to a summary judgment motion, however, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be supported adequately by the evidence adduced at trial." [Alteration in original; citation and internal quotation marks omitted.]
Here, the justiciability and Strickland issues were raised under both MCR 2.116(C)(4) (summary disposition for lack of subject-matter jurisdiction) and MCR 2.116(C)(8) (summary disposition for failure to state a claim). "In reviewing a motion under MCR 2.116(C)(4), it is proper to consider the pleadings and any affidavits or other documentary evidence submitted by the parties to determine if there is a genuine issue of material fact." Toaz v. Dep't of Treasury, 280 Mich.App. 457, 459 , 760 N.W.2d 325 (2008); see also Cork v. Applebee's of Michigan, Inc., 239 Mich. App. 311, 315 , 608 N.W.2d 62 (2000) (Under MCR 2.116[C][4], "this Court must determine whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or whether the affidavits and other proofs show that there was no genuine issue of material fact."). MCR 2.116(C)(8) provides for summary disposition where "[t]he opposing party has failed to state a claim on which relief can be granted." A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a complaint. Beaudrie v. Henderson, 465 Mich. 124, 129 , 631 N.W.2d 308 (2001). The trial court may only consider the pleadings in rendering its decision. Id. All factual allegations in the pleadings must be accepted as true. Dolan v. Continental Airlines/Continental Express, 454 Mich. 373, 380-381 , 563 N.W.2d 23 (1997).
As opposed to the circumstances in Lewis , we are addressing matters of justiciability at a very early stage in the proceedings and not in the context of completed trial proceedings or a summary disposition motion involving the submission of documentary evidence. The lower court record reveals that defendants' justiciability-related arguments were set forth without reliance on documentary evidence. And the argument that plaintiffs failed to state a claim for declaratory and injunctive relief, which only implicated MCR 2.116(C)(8), couched defendants' entire Strickland analysis. Defendants did not engage in an effort to show an absence of a genuine factual dispute with respect to whether plaintiffs' claims were justiciable; their argument was purely legal in nature and attacked the alleged inadequacy of the pleadings. Even though defendants could have taken a "documentary evidence" approach for purposes of MCR 2.116(C)(4), *123 as indicated in Toaz and Cork , they chose not to do so, attempting instead to dispose of the case in quick fashion without being buried in the discovery process. Accordingly, the focus in addressing the justiciability issues under the principles articulated earlier in this opinion must be on the allegations in plaintiffs' highly detailed complaint. [11]
g. DEFINING JUSTICIABLE HARM FOR PURPOSES OF THIS SUIT
Plaintiffs seek a declaratory judgment and prohibitory and mandatory injunctions, which remedies are prospective in nature, in an effort to stop alleged ongoing constitutional violations and to prevent future violations. As we view it, plaintiffs would be entitled to declaratory relief, in the context of this case and assuming establishment of causation, if they can show widespread and systemic instances of actual harm. The right to any prospective injunctive relief tends to concern the question whether the harm sought to be avoided in the future is imminent, and we conclude that harm is imminent if plaintiffs can show widespread and systemic instances of actual harm that have occurred in the past under the current indigent defense systems being employed by the counties. Accordingly, regardless of whether the focus is on declaratory relief or on injunctive relief, the proofs will require a showing of widespread and systemic instances of actual harm, thereby making the action justiciable. [12] The next step, therefore, is for us to define "harm" for purposes of this action.
We hold that, in the context of this class action civil suit seeking prospective relief for alleged widespread constitutional violations, injury or harm is shown when court-appointed counsel's representation falls below an objective standard of reasonableness (deficient performance) and results in an unreliable verdict or unfair trial, when a criminal defendant is actually or constructively denied the assistance of counsel altogether at a critical stage in the proceedings, or when counsel's performance is deficient under circumstances in which prejudice would be presumed in a typical criminal case. We further hold that injury or harm is shown when court-appointed counsel's performance or representation is deficient relative to a critical stage in the proceedings and, absent a showing that it affected the reliability of a verdict, the deficient performance results in a detriment to a criminal defendant that is relevant and meaningful in some fashion, e.g., unwarranted pretrial detention. Finally, we hold that, when it is shown that court-appointed counsel's representation falls below an objective standard of reasonableness with respect to a critical stage in the proceedings, there has been an invasion of a legally protected *124 interest and harm occurs. Plaintiffs must additionally show that instances of deficient performance and denial of counsel are widespread and systemic and that they are caused by weaknesses and problems in the court-appointed, indigent defense systems employed by the three counties, which are attributable to and ultimately caused by defendants' constitutional failures. [13] If the aggregate of harm reaches such a level as to be pervasive and persistent (widespread and systemic), the case is justiciable and declaratory relief is appropriate, as well as injunctive relief to preclude future harm and constitutional violations that can reasonably be deemed imminent in light of the existing aggregate of harm. See Milliken v. Bradley, 433 U.S. 267, 282 , 97 S.Ct. 2749 , 53 L.Ed.2d 745 (1977) (remedies ordered by court, while usually not the province of the judiciary, were proper where designed to counter pervasive and persistent constitutional violations within the school system).
Plaintiffs will no doubt have a heavy burden to prove and establish their case, but for now we are only concerned with whether plaintiffs have sufficiently alleged supportive facts. While we leave it to the trial court to determine the parameters of what constitutes "widespread," "systemic," or "pervasive" constitutional violations or harm, the court must take into consideration the level or degree of any shown harm, giving more weight to instances of deficient performance that resulted in unreliable verdicts and instances where the right to counsel was denied, with less weight being given where there is mere deficient performance. We find that the allegations in plaintiffs' complaint are sufficient to establish the existence of a genuine case or controversy between the parties, reflecting a dispute that is real, not hypothetical.
To summarize the approach to be taken on remand, plaintiffs must show the existence of widespread and systemic instances of actual or constructive denial of counsel and instances of deficient performance by counsel, which instances may have varied and relevant levels of egregiousness, all causally connected to defendants' conduct. Furthermore, because the proofs could be so wide ranging, it would reflect poor judgment on our part to set a numerical threshold with respect to the court's determination of whether the instances of harm, if shown, are sufficiently "widespread and systemic" so as to justify relief. The trial court is in a better position to first address this issue, subject of course to appellate review.
We glean from the dissenting opinion that our colleague is of the position that the only avenue, judiciary-wise, to address problems in the indigent defense systems employed by the three counties is through a standard criminal appeal as reflected in Strickland . The dissent also contends that a claim of ineffective assistance of counsel requires a conviction and deprival *125 of a fair trial as reflected in an unreliable verdict, even in this civil class action suit, given the holding in Strickland . Because of the dissent's position, it is concluding that we are necessarily making a finding of prejudice per se, and thereby a finding of justiciability per se, relative to the claims of preconviction ineffectiveness. Stated differently, the dissent finds that we are assuming that the individual plaintiffs and class members will be convicted, that defendants' actions caused the convictions, that the courts addressing the criminal cases will not correct any constitutional deficiencies, and that this action will redress their injuries. We are not making any such assumptions, and we respectfully conclude that the dissent simply fails to appreciate the nature and character of this civil action brought by a fluid class of plaintiffs that seeks a declaration of unconstitutionality and prospective, system-wide relief to prevent ongoing and future constitutional violations.
It is our view that Strickland and its many progeny, which demand deficient performance by counsel and, generally speaking, prejudice in order to entitle a criminal defendant to relief under the Sixth Amendment, have to be understood and viewed in context. The fundamental flaw in defendants' and the dissent's position on the justiciability issues is that the argument is grounded on principles intended to be applied in the context of postconviction criminal appeals that is 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 the criminal appellate process upon the justiciability analysis that governs this civil case simply because state and federal constitutional rights related to the right to counsel are implicated. We reject the argument that the need to show that this case is justiciable necessarily and solely equates to showing widespread instances of deficient performance accompanied by resulting prejudice in the form of an unreliable verdict that compromises the right to a fair trial.
It is entirely logical to generally place the decisive emphasis in a court opinion on the fairness of a trial and the reliability of a verdict when addressing a criminal appeal alleging ineffective assistance because the appellant is seeking a remedy that vacates the verdict and remands the case for a new trial. Indeed, it can instantly be gleaned from the opening paragraph in Strickland that it has little relevance here:
This case requires us to consider the proper standards for judging a criminal defendant's contention that the Constitution requires a conviction or death sentence to be set aside because counsel's assistance at the trial or sentencing was ineffective. [ Strickland, supra at 671 , 104 S.Ct. 2052 .]
In the case sub judice seeking prospective relief to prevent future harm, we are not judging whether a conviction or sentence should be set aside because of the ineffective assistance of counsel. Applying the two-part test from Strickland here as an absolute requirement defies logic, where the allegations concern widespread, systemic instances of constitutionally inadequate representation, and where the requested remedy in the form of prospective relief seeks to curb and halt continuing acts of deficient performance. What is essentially harmless-error analysis [14] is being confused with justiciability analysis in a case involving an altogether different *126 remedy. The right to counsel must mean more than just the right to an outcome.
A simple hypothetical illustrates the inappropriateness of applying, solely, the two-part Strickland test and in taking a position that the only avenue of relief is a criminal appeal. Imagine that, in 100 percent of indigent criminal cases being handled by court-appointed counsel, it could be proven that the proceedings were continuously infected with instances of deficient performance by counsel, yet 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 and untainted evidence of guilt. In our scenario, under defendants' and the dissent's reasoning, court intervention in a class action suit such as the one filed here would not be permitted on justiciability grounds despite the constitutionally egregious circumstances. This is akin to taking a position that indigent defendants who are ostensibly guilty are unworthy or not deserving of counsel who will perform at or above an objective standard of reasonableness. The holding set forth in Gideon becomes empty and meaningless under such a rationale. Widespread and systemic instances of deficient performance caused by a poorly equipped appointed-counsel system will not cease and be cured with a case-by-case examination of individual criminal appeals, given that prejudice is generally required and often not established. Even though a criminal appeal may occasionally result in a new trial, it has no bearing on eradication of continuing systemic constitutional deficiencies. Thus, contrary to defendants' argument 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 in any findings of prejudice, standing, or justiciability per se. Rather, we are merely indicating that if it is proven, as alleged, that there have been widespread and systemic instances of deficient performance and denial of counsel, along with proof of the requisite causation, unconstitutionality can be declared and harm in ongoing and future criminal prosecutions of indigent defendants can be deemed imminent, thereby giving rise to a right to an equitable remedy. Concluding that an invasion of a legally protected interest is imminent will always carry with it some modicum of speculation; however, there is no caselaw of which we are aware that suggests that a showing of imminent harm is insufficient to permit judicial intervention. Indeed, the caselaw is to the contrary. See, e.g., Michigan Citizens, supra at 294-295 , 737 N.W.2d 447 . The dissent also fails to acknowledge that plaintiffs have alleged wrongful convictions.
We additionally find that defendants' and the dissent's position ignores the reality that harm can take many shapes and forms. Consistently with the concept of prejudice as employed in criminal appeals, we would agree that justiciable injury or harm is certainly indicated by a showing that there existed a reasonable probability that, but for an error by counsel, the result of a criminal proceeding would have been different. See Carbin, supra at 599-600 , 623 N.W.2d 884 . But injury or harm also occurs when there are instances of deficient performance by counsel at critical *127 stages in the criminal proceedings that are detrimental to an indigent defendant in some relevant and meaningful fashion, even without neatly wrapping the justiciable harm around a verdict and trial. Such harm arises, for example, when there is an unnecessarily prolonged pretrial detention, a failure to file a dispositive motion, entry of a factually unwarranted guilty plea, or a legally unacceptable pretrial delay. [16] And as indicated earlier in this opinion, simply being deprived of the constitutional right to effective representation at a critical stage in the proceedings, in and of itself, gives rise to harm.
Further, even in criminal appeals there are situations in which the prejudice prong need not be satisfied. In Strickland, supra at 692 , 104 S.Ct. 2052 , the United States Supreme Court stated that "[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." The Court similarly observed in Cronic that constitutional error exists without a showing of prejudice when counsel is "prevented from assisting the accused during a critical stage of the proceeding." Cronic, supra at 659 n. 25, 104 S.Ct. 2039 . The concept of constructive denial of counsel was explored in Cronic , wherein the Court stated that "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Id. at 659 , 104 S.Ct. 2039 . The Strickland Court made clear that where there is actual or constructive denial of counsel "[p]rejudice ... is so likely that case-by-case inquiry into prejudice is not worth the cost." Strickland, supra at 692 , 104 S.Ct. 2052 . Strickland also provided "that prejudice is presumed when counsel is burdened by an actual conflict of interest." Id. Taking into consideration this precedent for the purpose of analyzing justiciability, it is reasonable to conclude that *128 justiciable harm or injury exists when there is an actual denial of counsel, there is an overwhelmingly deficient performance by counsel equating to constructive denial of counsel, or when counsel with conflicting interests represents an indigent defendant. As will be detailed later in this opinion, plaintiffs' complaint contains allegations that fit within the categories of actual and constructive denial of counsel, as well as allegations that encompass other situations in which prejudice is presumed.
Our conclusion that the two-part test in Strickland should not control this litigation is generally consistent with caselaw from other jurisdictions addressing comparable suits. [17]
A case heavily cited on the topic at hand is Luckey v. Harris, 860 F.2d 1012 (C.A.11, 1988). Luckey was an action commenced "on behalf of a bilateral class consisting of all indigent persons presently charged or who will be charged in the future with criminal offenses in the courts of Georgia and of all attorneys who represent or will represent indigent defendants in the Georgia courts[.]" Id. at 1013 . The plaintiffs alleged systemic deficiencies with respect to the appointment of counsel for indigent defendants that resulted in deprivations of various constitutional rights, including the Sixth Amendment right to counsel. The alleged deficiencies included delays in the appointment of counsel, pressure on attorneys to enter guilty pleas or to hurry cases to trial, and inadequate resources. Relying on Strickland , the federal district court dismissed the action for, in part, failure to state a claim. Id. at 1013, 1016. The United States Court of Appeals for the Eleventh Circuit reversed, ruling:
[The Strickland ] standard is inappropriate for a civil suit seeking prospective relief. The [S]ixth [A]mendment protects rights that do not affect the outcome of a trial. Thus, deficiencies that do not meet the "ineffectiveness" standard may nonetheless violate a defendant's rights under the [S]ixth [A]mendment. In the post-trial context, such errors may be deemed harmless because they did not affect the outcome of the trial. Whether an accused has been prejudiced by the denial of a right is an issue that relates to relief—whether the defendant is entitled to have his or her conviction overturned—rather than to the question of whether such a right exists and can be protected prospectively....
Where a party seeks to overturn his or her conviction, powerful considerations warrant granting this relief only where that defendant has been prejudiced. The Strickland [C]ourt noted the following factors in favor of deferential scrutiny of a counsel's performance in the post-trial context: concerns for finality, concern that extensive post-trial burdens would discourage counsel from accepting cases, and concern for the independence of counsel. These considerations *129 do not apply when only prospective relief is sought.
Prospective relief is designed to avoid future harm. Therefore, it can protect constitutional rights, even if the violation of these rights would not affect the outcome of a trial. [ Id. at 1017 (citations omitted).]
We fully agree with the statements and observations made in this passage, and they mirror our thoughts voiced earlier in this opinion. Petitions for rehearing and suggestions of rehearing en banc were denied. Luckey v. Harris, 896 F.2d 479 (C.A.11, 1989), cert den 495 U.S. 957 , 110 S.Ct. 2562 , 109 L.Ed.2d 744 (1990). Eventually, the plaintiffs' case was dismissed on unrelated abstention grounds. Luckey v. Miller, 976 F.2d 673 (C.A.11, 1992). [18] Defendants and the dissent here favor the approach twice rejected in the Luckey cases. We choose not to give weight to a dissenting judge's analysis that failed to convince a majority of judges on the Eleventh Circuit of its correctness.
In Platt v. State, 664 N.E.2d 357, 362 (Ind.App., 1996), a civil suit was brought seeking injunctive relief premised on the contention "that the system for providing legal counsel for indigents in Marion County lacks sufficient funds for pretrial investigation and preparation which inherently causes ineffective assistance of counsel at trial." The plaintiffs alleged that the public defender system violated the fundamental right to effective pretrial assistance of counsel under the Sixth Amendment. Id. The appellate court first cited principles from Strickland and Cronic and then ruled:
Here, Platt seeks to enjoin the Marion County public defender system because it effectively denies indigents the effective assistance of counsel. However, a violation of a Sixth Amendment right will arise only after a defendant has shown he was prejudiced by an unfair trial. This prejudice is essential to a viable Sixth Amendment claim and will exhibit itself only upon a showing that the outcome of the proceeding was unreliable. Accordingly, the claims presented here are not reviewable under the Sixth Amendment as we have no proceeding and outcome from which to base our analysis. [ Id. at 363 (citation omitted).]
This cursory analysis is flawed for all the reasons that we expressed earlier in this opinion. Moreover, the opinion is essentially silent with respect to any particular allegations of deficient performance and harm, and it indicates that the court was not presented with any criminal proceedings and outcomes. In the instant case, plaintiffs allege wrongful trial convictions, instances wherein prejudice would be presumed, and situations in which counsel was actually or constructively denied. We find Platt wholly unpersuasive.
*130 There is also the case of Kennedy v. Carlson, 544 N.W.2d 1 (Minn., 1996), in which a chief public defender brought suit. The Minnesota Supreme Court noted that the public defender claimed "that his clients have been exposed to the possibility of substandard legal representation[.]" Id. at 6 (emphasis added). The court, without any reference whatsoever to Strickland and its two-part test, stated:
We note that appellants cite a number of decisions by other courts addressing the issue of public defense funding. In those cases where courts have found a constitutional violation due to systemic underfunding, the plaintiffs showed substantial evidence of serious problems throughout the indigent defense system. By comparison, Kennedy has shown no evidence that his clients actually have been prejudiced due to ineffective assistance of counsel. To the contrary, the evidence establishes that Kennedy's office is well-respected by trial judges, it is well-funded when compared to other public defender offices, and its attorneys have faced no claims of professional misconduct or malpractice. [ Id. at 6-7.]
The Minnesota court then proceeded to cite several cases in which courts from other jurisdictions have adjudicated matters related to systemic constitutional deficiencies arising out of the right to effective counsel. Id. at 7-8. The court then ruled:
The majority of the cases discussed above cite evidence of substandard representation by court appointed defense counsel, generally supplied by a particular defendant, as contributing to the court's decision to intervene. Kennedy, however, has not shown that his attorneys provide substandard assistance of counsel to their clients....
In short, Kennedy's claims of constitutional violations are too speculative and hypothetical to support jurisdiction in this court. The district court did not find that Kennedy's staff had provided ineffective assistance to any particular client, nor did it find that Kennedy faced professional liability as a result of his office's substandard services. Nor do any of Kennedy's clients join him in attacking the statutory funding scheme at issue here by presenting evidence of inadequate assistance in particular cases. In light of Kennedy's failure to provide more substantial evidence of an "injury in fact" to himself or his clients, we hold that the district court erred in granting Kennedy's summary judgment motion. [ Id. at 8.]
Here, we have a class of plaintiffs who have been, are being, or will be subjected to the court-appointed, indigent defense systems employed in Berrien, Muskegon, and Genesee counties. Further, we have extensive allegations of substandard representation and ineffective assistance of counsel. Thus, given the distinctions between Kennedy and the instant action, the ultimate holding in Kennedy is simply inapposite and its underlying discussion tends to support our ruling.
In New York Co. Lawyers' Ass'n v. State, 192 Misc.2d 424, 430-431 , 745 N.Y.S.2d 376 (2002), the New York court rejected a Strickland approach, reasoning:
Prejudice, as an aspect of the Strickland test, is examined more generally under the State Constitution in the context of whether defendant received meaningful representation. ( See, People v. Hobot, 84 N.Y.2d 1021, 1022 , 646 N.E.2d 1102, 1103 , 622 N.Y.S.2d 675, 676 (1995)) (the test is whether counsel's errors seriously compromise a defendant's right to a fair trial).... The purpose is to ensure that a defendant has the assistance necessary to justify society's reliance on the outcome of the proceedings. Notably, New York is concerned *131 as much with the integrity of the judicial process as with the issue of guilt or innocence, and therefore this court finds the more taxing two-prong Strickland standard used to vacate criminal convictions inappropriate in a civil action that seeks prospective relief premised on evidence that the statutory monetary cap provisions and compensation rates currently subject children and indigent adults to a severe and unacceptable risk of ineffective assistance of counsel. This court further finds Strickland's reliance on post-conviction review provides no guarantee that the indigent will receive adequate assistance of counsel under the New York Constitution in the context of this action. Accordingly, because the right to effective assistance of counsel in New York is much more than just the right to an outcome, threatened injury is enough to satisfy the prejudice element and obtain prospective injunctive relief to prevent further harm. (Citation omitted.)
In Quitman Co. v. State, 910 So.2d 1032 (Miss., 2005), the county itself commenced a civil action for declaratory and injunctive relief, alleging that by imposing an obligation on the county to fund the representation of indigent defendants, the state of Mississippi breached its constitutional duties to provide adequate representation for indigent criminal defendants. Consistent with our opinion, the Mississippi Supreme Court stated:
In [the first appeal], this Court held that the County would be entitled to the prospective statewide relief it seeks if it established the cost of an effective system of indigent criminal defense, the county's inability to fund such a system, and the failure of the existing system to provide indigent defendants in Quitman County with the tools of an adequate defense. The circuit judge ruled that the County failed to establish these facts.... The County asserts that "[t]he evidence at trial established each of these elements."
The State correctly points out that "[c]ommon sense suggests that if Quitman County claims there is widespread and pervasive ineffectiveness, the most probative evidence to support that claim would be testimony about specific instances when the public defenders' performance fell below `an objective standard of reasonableness' as measured by the professional norms." [Citing Strickland . ] The State also asserts that the circuit judge expected to hear such testimony at trial since the County alleged in its complaint that requiring each county to pay for its own public defenders did not satisfy the constitutional requirements for effective assistance of counsel. The record reflects that no such evidence was presented at trial.....
The County did not present any evidence on any one of the central factual allegations in its complaint, and the County did not try to show specific examples of when the public defenders legal representation fell below the objective standard of professional reasonableness. [ Quitman, supra at 1037 (emphasis in original).]
The Mississippi Supreme Court had allowed the case to go forward on the basis of the allegations in the complaint, State v. Quitman Co., 807 So.2d 401 (Miss., 2001), which is all that we are doing, and our plaintiffs must ultimately prove their case to obtain relief, which the county in Quitman failed to accomplish.
We finally note Benjamin v. Fraser, 264 F.3d 175 (C.A.2, 2001), which was a suit that involved the question whether pretrial detainees had demonstrated the existence of current and ongoing constitutional violations and the need for the continuation of *132 prospective relief with respect to impediments to attorney-client jail visitations. The United States Court of Appeals for the Second Circuit stated that "[i]n considering burdens on the Sixth Amendment right to counsel, we have not previously required that an incarcerated plaintiff demonstrate `actual injury' in order to have standing." Id. at 186 . The court further asserted that "[i]t is not clear to us what `actual injury' would even mean as applied to a pretrial detainee's right to counsel." Id. Read in context, the Benjamin court was simply indicating, consistently with our position, that a Strickland -like prejudice requirement, arising out of a trial and conviction, is not applicable if the right to counsel has been violated.
Having set the analytical framework, including the appropriate standard for justiciable harm, we now move on to applying the allegations in plaintiffs' complaint to the framework.
h. APPLICATION OF COMPLAINT ALLEGATIONS TO JUSTICIBILITY PRINCIPLES
(i) HARM AND THE NAMED PLAINTIFFS
Plaintiff Christopher L. Duncan alleges that he pleaded guilty of an overcharged crime that was factually unwarranted because of his attorneys inadequate representation. Plaintiff Billy Joe Burr, Jr., alleges that he had to endure a delay before an acceptable misdemeanor plea was offered to him, which only occurred after counsel advised him to plead guilty of the charged felony and after Burr demanded that counsel speak further to the prosecutor. Plaintiff Steven Connor alleges that there was a basis to suppress a search without a warrant that was ignored by counsel. Plaintiff Antonio Taylor alleges that there existed a valid defense predicated on forensic evidence and witness accounts had counsel bothered conducting an investigation and inquiry. Plaintiff Jose Davila alleges that counsel failed to discuss the charges with Davila, lied to the court about it, and failed to challenge a revision of the charges. Plaintiffs Jennifer O'Sullivan, Christopher Manies, and Brian Secrest allege that counsel had effectively gone missing in action, despite the fact that they faced serious charges and that hearings and trials were pending. A common thread that runs through all the allegations concerning the named plaintiffs is the failure of counsel to converse with plaintiffs in a meaningful manner. The named plaintiffs allegedly experienced conduct that included: counsel speaking with plaintiffs, for the first time, in holding cells for mere minutes before scheduled preliminary examinations while in full hearing range of other inmates; counsel advising plaintiffs to waive preliminary examinations without meaningful discussions on case-relevant matters; counsel failing to provide plaintiffs with police reports; and counsel generally neglecting throughout the entire course of criminal proceedings to discuss with plaintiffs the accuracy and nature of the charges, the circumstances of the purported crimes, and any potential defenses. They further complain of the following: counsel entering into plea negotiations without client input or approval; counsel perfunctorily advising plaintiffs to plead guilty as charged absent meaningful investigation and inquiry; counsel improperly urging plaintiffs to admit facts when pleas were taken; and, counsel neither preparing for hearings and trials, nor engaging in any communications with plaintiffs concerning trials. In sum, the allegations by the named plaintiffs include instances of representation by counsel that fell below an objective standard of reasonableness in regard to critical stages *133 in the criminal proceedings. [19]
(ii) HARM AND CLASS MEMBERS GENERALLY
Plaintiffs devote an entire section of the complaint to allegations of harm suffered by class members. Plaintiffs allege that class members "are detained unnecessarily or for prolonged periods of time before trial." As examples, they refer to contract defenders and counsel for indigents who rarely seek bail reductions, despite circumstances calling for reductions, and who fail to appear at court proceedings, resulting in frequent postponements 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 court dates, including three scheduled circuit court hearings." These allegations include instances of deficient performance, which also resulted in the harm of unwarranted, unnecessary, and prolonged delays and detentions.
Plaintiffs next allege that class members are compelled into taking inappropriate pleas, often to the highest charged crimes, even "when they have meritorious defenses." Plaintiffs assert that counsel routinely encourage guilty pleas "without a proper factual basis for guilt" and absent "even a cursory investigation into potentially mer

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1667069. Public record. Not legal advice.