County of Oakland v. State of Michigan

STATE OF MICHIGAN

COURT OF APPEALS

OAKLAND COUNTY, FOR PUBLICATION

July 17, 2018

Plaintiff-Appellant, 9:00 a.m.

v No. 341172

Court of Claims

STATE OF MICHIGAN, DEPARTMENT OF LC No. 17-000216-MZ

LICENSING AND REGULATORY AFFAIRS,

and MICHIGAN INDIGENT DEFENSE

COMMISSION,

Defendants-Appellees.

Before: RONAYNE KRAUSE, P.J., and GLEICHER and LETICA, JJ.

PER CURIAM.

Oakland County objected to the Legislature’s amendment of an act creating the Michigan

Indigent Defense Commission (MIDC), giving authority to the Executive Branch, through the

Department of Licensing and Regulatory Affairs (LARA), to set standards for attorneys

appointed to represent indigent clients. The bulk of the county’s argument revolved around its

claim that the MIDC Act and the standards approved by LARA usurped the judiciary’s power to

manage and control the court system and the legal profession. Although there is some overlap,

the limited sharing of powers envisioned by the act does not offend the separation of powers

clause of Const 1963, art 3, § 2 and the county is not otherwise entitled to relief. We therefore

affirm the Court of Claims’ summary dismissal of Oakland County’s suit.

I. BACKGROUND

In 2011, the governor signed an executive order establishing an advisory commission on

the defense of indigent criminal defendants. Based on the commission’s report, the Legislature

passed 2013 PA 93, the MIDC Act. MCL 780.981 et seq. The act created the MIDC and

designated it as an autonomous entity within the judicial branch, tasked with proposing minimum

standards for providing effective assistance of counsel for indigent criminal defendants.

On January 4, 2016, the MIDC submitted its initial set of four standards to the Michigan

Supreme Court for its review. The Supreme Court conditionally approved these standards,

“subject to and contingent on legislative revision of the MIDC Act to address provisions that the

Court deem[ed] to be of uncertain constitutionality.” AO No. 2016-2, 499 Mich xcviii, xcviii-

xcix (2016). Specifically, the Court was concerned that the creation of an “autonomous entity”

-1-

within the judicial branch unconstitutionally usurped its exclusive authority “to exercise general

supervisory control” over judicial branch employees. See Const 1963, art 6, §§ 1, 4, and 7. The

Court opined that the act’s definition of “indigent criminal defense system” (ICDS), combining

the trial court with its nonjudicial local government, and allowing the autonomous MIDC to

“[d]evelop[] and oversee[] the implementation, enforcement, and modification of minimum

standards, rules, and procedures to ensure that indigent criminal defense services providing

effective assistance of counsel are consistently delivered to all indigent adults in this state,” and

“to assure compliance with the commission’s minimum standards, rules, and procedures” “might

contain enforcement mechanisms” that usurp the Supreme Court’s control over the court system.

Const 1963, art 6, § 4. Moreover, the Court interpreted certain act provisions as “arguably

allowing the MIDC to regulate the legal profession, a power granted to the judiciary by Const

1963, art 6, § 5. The Court indicated that its conditional approval would be automatically

withdrawn on December 31, 2016 if the Legislature did not act. AO 2016-2, 499 Mich at xcix-

c.]

The Legislature thereafter amended the MIDC Act, effective January 4, 2017. 2016 PA

439. The Legislature removed the MIDC from the judicial branch and placed it within LARA,

an executive branch agency. MCL 780.985(1); MCL 780.983(b). The Legislature also revised

the definition of an ICDS to mean only the local unit of government that funds a trial court (the

funding unit), rather than the funding unit and the trial court. MCL 780.983(g). The

amendments further provided that the minimum standards enacted under the MIDC Act shall not

infringe the Supreme Court’s authority under Const 1963, art 6, §§ 4 and 5. MCL 780.985(3);

MCL 780.991(3)(a).

State Court Administrator Milton L. Mack, Jr. subsequently advised the state’s chief

judges that the act’s amendments “appear to address issues of uncertain constitutionality that

were raised by the Court.” However, Mack asserted, because the legislative amendments did not

take effect by December 31, 2016, the Supreme Court’s conditional approval of the MIDC’s

proposed standards had expired.

On May 22, 2017, LARA approved the MIDC’s proposed minimum standards for

guaranteeing the delivery of indigent criminal defense services (substantively the same standards

that had been conditionally approved by the Supreme Court). Standard 1 provided minimum

standards for continuing legal education (CLE) and attorney training. Standard 2 set standards

for an attorney’s initial client interview. Standard 3 described standards for investigations and

for certain expert witness matters. Standard 4 provided minimum standards for defense

counsel’s first appearance and subsequent appearances at critical stages in the proceedings. The

act required the ICDSs to submit plans to comply with the act and the standards by November

20, 2017, and gave the MIDC 60 days to review the plans.

On June 20, the MIDC published “A Guide for Submission of Compliance Plans, Cost

Analyses, and Local Share Calculations” “to assist with the preparation of the cost analysis and

compliance planning for delivering indigent criminal defense services.” The Guide provided that

the ICDSs must address “each standard individually” and offered “General Guidelines for

Compliance Plans.” The MIDC also published a “Compliance Plan for Indigent Standards 1-4”

containing further “instructions” and “guidelines” regarding the filing of a plan for compliance

with the indigent defense standards.

-2-

II. THE LAWSUIT

Oakland County filed suit, asserting constitutional challenges to the MIDC Act and the

approved indigent criminal defense standards. As the trial court summarized the complaint:

Count I alleges that the MIDC Act is “facially unconstitutional” under Const

1963, art 3, § 2 – the separation of powers clause – because “it empowers LARA

to usurp the Michigan Supreme Court’s constitutional authority to regulate and

enforce minimum qualifications and professional standards for attorneys who

represent indigent criminal defendants.” Count II alleges that both the MIDC Act

and the approved standards . . . are “facially unconstitutional” under Const 1963,

art 6, § 5 because “they usurp the Michigan Supreme Court’s constitutional

authority to promulgate rules governing practice and procedure in Michigan

Courts.” Count III sounds a similar refrain, with the exception being that it

asserts the MIDC Act and the approved standards violate Const 1963, art 6, § 4.

Lastly, Count IV alleges that the MIDC promulgated “mandatory rules and

procedures” in violation of the [Administrative Procedures Act (APA)]. The

complaint sought declaratory relief and a stay of the enforcement of the approved

standards.

In lieu of an answer, defendants sought summary disposition. Defendants denied any

conflict between the act and standards and the Supreme Court’s constitutional authority. The

county asserted that the standards did not regulate the practice and procedure of attorneys and

trial courts; rather, the standards regulated the funding units who must pay for ICD services. The

act prohibited any minimum standards infringing on the Supreme Court’s authority, defendants

continued. Likewise, the MIDC’s minimum standards regulated the funding unit, not the

conduct and qualifications of attorneys, the practice of law, or the administration of justice by

courts. Defendants argued that the Guide was not subject to the APA because it was not a

mandatory rule. Defendants further contended that Oakland County’s challenge to possible

future standards was not yet ripe.

In response to defendants’ motion and its own cross-motion for summary disposition, the

county contended that the act allows the MIDC to regulate the legal profession, a power granted

to the judicial branch, in violation of the separation of powers clause found in Const 1963, art 3,

§ 2. The act and the LARA-approved minimum standards unconstitutionally allowed an

executive branch entity to regulate practice and procedure in the courts, the county asserted.

And overall, the act and standards infringed the Supreme Court’s exclusive authority to supervise

the administration of justice in all state courts under Const 1963, art 6, § 4. The county opined

that Standard 4 impermissibly created a new right to appointed counsel at arraignment. The

county alleged conflicts between the Michigan Court Rules and the act and standards regarding

indigency determinations and counsel appointments. Specifically, the county complained that

the act took indigency determinations away from the courts and placed them with the funding

units. The county argued that Standard 3 usurped the judiciary’s authority to set standards for

the appointment of expert witnesses. Finally, the county contended that the guidelines

promulgated by the MIDC were more than educational and contained compulsory provisions,

requiring the MIDC to follow the APA before adopting them.

-3-

In response, defendants added that Standard 4 did not create a new right to counsel at

arraignment or conflict with the Michigan Court Rules. Standard 3, which required ICDSs to

fund reasonable requests for experts as required by law, likewise did not conflict with the United

States Constitution, criminal statutes, or rules of evidence, defendants contended. Overall,

defendants emphasized, the MIDC Act was specifically amended to address the Supreme Court’s

constitutional concerns.

As noted, the trial court granted summary disposition in defendants’ favor and dismissed

Oakland County’s suit. The court rejected the county’s facial challenge to the constitutionality

of the MIDC Act. The trial court recognized the Supreme Court’s constitutional authority to

regulate the practice of law, the conduct of attorneys, and the conduct of court proceedings. But

the court noted that the constitution does not require an absolute separation of powers, allowing

some overlapping of functions, responsibilities, and powers between branches. Regarding the

county’s claim that the MIDC Act improperly permitted LARA to regulate the conduct and

minimum qualifications of attorneys who represent indigent criminal defendants, the court noted

that the county merely pointed to the minimum standards. However, the standards implemented

by LARA do not aid in determining whether the MIDC Act is facially unconstitutional. The

county’s separation of powers argument lacked merit for that reason alone.

Moreover, the court continued, the MIDC Act at most provided for a permissibly limited

sharing or overlapping of functions. The act regulated the funding units, rather than trial courts

themselves, and thus did not encroach on judicial authority. The act expressly recognized the

Supreme Court’s constitutional authority over court practice and procedure. It did not permit the

MIDC to require the judiciary’s compliance with the minimum standards and did not attempt to

control what happens in court. The MIDC had no authority over who becomes a licensed

attorney; the act merely addressed a county-controlled system to ascertain indigency and provide

qualified attorneys to indigent defendants. Court precedent, rather than separate MIDC

standards, would be used to determine the quality of representation to be required by ICDSs.

The trial court discerned no conflict between the MIDC Act and the Michigan Court

Rules. MCL 780.991(3)(a) provided that nothing in the act “shall prevent a court from making a

determination of indigency for any purpose consistent with [Const 1963, art 6].” Further, MCL

780.991(3)(a) stated that “[a] trial court may play a role in this [indigency] determination as part

of any [ICDCs’s] compliance plan under the direction and supervision of the supreme court. . . .”

Accordingly, courts were not prevented from making a determination of indigency for any

purpose. In the absence of an inherent conflict between the act and a court rule, the court found

it is unnecessary to determine whether judicial authority has been infringed or supplanted.

The trial court next addressed Oakland County’s challenges to the minimum standards.

In relation to the county’s contention that Standard 4 improperly required a defendant to be

represented at arraignment, the court noted that the federal constitution does not require the

appointment of counsel at the arraignment, but nothing prohibits it. A state may afford its

citizens greater rights than those required at the federal level. The court determined that the

Legislature had done exactly this in MCL 780.991(3)(a), by providing that a determination of

indigency shall be made “not later than at the defendant’s first appearance in court.” Hence,

there was no conflict between Standard 4 and the pertinent controlling authorities.

-4-

The court found no conflict between Standard 3 and the judiciary’s authority to define

and regulate practice and procedure. Standard 3 provided that counsel must request the

assistance of experts when reasonably necessary and that reasonable requests must be funded as

required by law. Because Standard 3 required funding of experts as required by law, the funding

requirement was commensurate with the very authority the county claimed that the MIDC

disregarded. Further, Standard 3 did not interfere with the trial court’s gatekeeping function.

The trial court noted that the county had failed to specifically analyze Standards 1 and 2,

leaving the court to speculate regarding its argument. In any event, the court found no conflict

between those standards and any statutes, court rules, or constitutional principles.

Regarding the county’s argument that the MIDC was then considering granting additional

authority to funding units to decide issues regarding the appointment of experts and the

determination of indigency, the county had presented no evidence that the MIDC had

promulgated standards to implement this strategy. Accordingly, this challenge was not ripe for

judicial review. And regarding the county’s claim that the MIDC was required to follow the

APA, the court found the minimum standards exempt. The trial court rejected that the MIDC

had promulgated compulsory rules and procedures disguised as guidelines, accepting instead that

the Guide was explanatory, amounting to an exempt guideline or informational pamphlet.

The county now appeals.

III. FACIAL CONSTITUTIONALITY

The county continues to contend that the MIDC Act is facially unconstitutional because it

violates the separation of powers clause of Const 1963, art 3, § 2. The county asserts that the act

impermissibly infringes on the constitutional authority of the Michigan Supreme Court by

granting an executive branch agency broad authority to regulate the minimum qualifications,

professional standards, and duties of attorneys who represent indigent criminal defendants.

We review de novo a trial court’s resolution of a summary disposition motion. Johnson v

Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). We also review de novo “[w]hether a statute

is unconstitutional because it violates the separation-of-powers doctrine. . . .” In re Petition of

Tuscola Co Treasurer for Foreclosure, 317 Mich App 688, 694; 895 NW2d 569 (2016).

Underlying that consideration, we consider de novo the trial court’s interpretation of the

challenged statutes. Klooster v City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011).

“Statutes are presumed to be constitutional, and we have a duty to construe a statute as

constitutional unless its unconstitutionality is clearly apparent.” Tuscola Co Treasurer, 317

Mich App at 701 (quotation marks and citations omitted).

We exercise the power to declare a law unconstitutional with extreme caution,

and we never exercise it where serious doubt exists with regard to the conflict.

Every reasonable presumption or intendment must be indulged in favor of the

validity of an act, and it is only when invalidity appears so clearly as to leave no

room for reasonable doubt that it violates some provision of the Constitution that

a court will refuse to sustain its validity. Therefore, the burden of proving that a

statute is unconstitutional rests with the party challenging it . . . . When

-5-

considering a claim that a statute is unconstitutional, the Court does not inquire

into the wisdom of the legislation. [In re Request for Advisory Opinion

Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 307-308; 806 NW2d

683 (2011) (quotation marks, brackets, and citations omitted).]

“To make a successful facial challenge to the constitutionality of a statute, the challenger must

establish that no set of circumstances exists under which the act would be valid.” Judicial

Attorneys Ass’n v Michigan, 459 Mich 291, 303; 586 NW2d 635 (1998) (quotation marks,

brackets, and citations omitted).

Const 1963, art 3, § 2 provides that “[t]he powers of government are divided into three

branches: legislative, executive and judicial. No person exercising powers of one branch shall

exercise powers properly belonging to another branch except as expressly provided in this

constitution.” It is beyond dispute that our Supreme Court possesses constitutional authority to

regulate the practice of law as well as the conduct of attorneys and court proceedings. See Const

1963, art 6, § 4 (“The supreme court shall have general superintending control over all

courts . . . .”); Const 1963, art 6, § 5 (“The supreme court shall by general rules establish,

modify, amend and simplify the practice and procedure in all courts of this state. . . .”). Our

Supreme Court “has the power under Const 1963, art 6, § 5, to regulate and discipline the

members of the bar of this state[,]” Grievance Administrator v Lopatin, 462 Mich 235, 241; 612

NW2d 120 (2000), and possesses constitutional authority to determine rules of practice and

procedure in state courts, McDougall v Schanz, 461 Mich 15, 26-27; 597 NW2d 148 (1999).

It is also recognized, however, that “the separation-of-powers doctrine does not require

an absolute separation of the branches of government[.]” People v Cameron, 319 Mich App 215,

232; 900 NW2d 658 (2017), oral argument gtd on the application ___ Mich ___; 907 NW2d 604

(2018).

“While the Constitution provides for three separate branches of government, the

boundaries between these branches need not be airtight. In fact, in designing the

structure of our Government and dividing and allocating the sovereign power

among three co-equal branches, the Framers of the Constitution sought to provide

a comprehensive system, but the separate powers were not intended to operate

with absolute independence. The true meaning of the separation-of-powers

doctrine is that the whole power of one of these departments should not be

exercised by the same hands which possess the whole power of either of the other

departments; and that such exercise of the whole would subvert the principles of a

free Constitution.” [Id. at 232-233 (brackets omitted), quoting Makowski v

Governor, 495 Mich 465, 482; 852 NW2d 61 (2014).]

Therefore, “ ‘[i]f the grant of authority to one branch is limited and specific and does not create

encroachment or aggrandizement of one branch at the expense of the other, a sharing of power

may be constitutionally permissible.’ ” Cameron, 319 Mich App at 233, quoting Hopkins v

Parole Bd, 237 Mich App 629, 636; 604 NW2d 686 (1999); see also Judicial Attorneys Ass’n,

459 Mich at 297 (“This Court has established that the separation of powers doctrine does not

require so strict a separation as to provide no overlap of responsibilities and powers.”).

-6-

It is simply impossible for a judge to do nothing but judge; a legislator to

do nothing but legislate; a governor to do nothing but execute the laws. The

proper exercise of each of these three great powers of government necessarily

includes some ancillary inherent capacity to do things which are normally done by

the other departments. [Judicial Attorneys Ass’n, 459 Mich at 297 (quotation

marks and citation omitted).]

Here, any sharing or overlapping of functions required by the MIDC Act is sufficiently

specific and limited that it does not encroach on the constitutional authority of the judiciary.

Importantly, the act does not directly regulate trial courts or attorneys. Rather, the act regulates

“indigent criminal defense system[s],” statutorily defined as funding units, rather than trial courts

themselves. MCL 780.983(g). In this respect, as the trial court noted, the act “takes care to not

encroach on the authority of the judicial branch.” Further, the act repeatedly recognizes the

Michigan Supreme Court’s constitutional authority to regulate practice and procedure and to

exercise general superintending control of Michigan courts. MCL 780.985(3) provides that the

minimum standards proposed by the MIDC “shall not infringe on the supreme court’s authority

over practice and procedure in the courts of this state as set forth in [Const 1963, art 6, § 5].”

MCL 780.991(3)(a) further provides:

A trial court may play a role in this [indigency] determination as part of any

[ICDS’s] compliance plan under the direction and supervision of the supreme

court, consistent with [Const 1963, art 6, § 4]. Nothing in this act shall prevent a

court from making a determination of indigency for any purpose consistent with

[Const 1963, art 6].

As described by the trial court, the act’s “express recognition of the constitutional role of the

judiciary undercuts (but does not preclude) a facial challenge to the constitutionality of the act on

separation-of-powers grounds.” See Straus v Governor, 459 Mich 527, 543-544; 592 NW2d 53

(1999) (an executive order’s express inclusion of the requirements of the constitutional provision

that the order was said to violate weighed against finding the order unconstitutional).

Reinforcing the conclusion that the MIDC Act does not impermissibly infringe on the

constitutional authority of the judiciary is that the act provides for enforcement of the minimum

standards only on the ICDSs, not on attorneys or courts. For example, the ICDS, not attorneys or

courts, must submit a compliance plan and cost analysis. See MCL 780.993(3). The funding

unit, rather than attorneys or courts, is statutorily required to “comply with an approved plan

under” the act. MCL 780.997(1). See also MCL 780.995 (providing procedures for resolving a

dispute between the MIDC and an ICDS). Further, as the trial court correctly observed, the act

contains no provision authorizing the MIDC to force the judiciary to comply with the minimum

standards, nor does the act purport to control what happens in court. The MIDC is granted no

authority regarding the licensure of attorneys, nor is it afforded any power to censure or sanction

attorneys or judges. Instead, the act makes plain that with information provided by, among

others, courts, MCL 780.991(1)(a), a county-controlled system is used to determine whether a

criminal defendant is indigent and to provide qualified attorneys to represent indigent criminal

defendants. See MCL 780.985(3); MCL 780.989(1); MCL 780.991(1). In addition, the act

establishes that the quality of representation required of appointed defense attorneys is defined

-7-

by caselaw regarding the effective assistance of counsel, not by statutory or regulatory standards.

See MCL 780.983(c); MCL 780.985(3); MCL 780.989(1); MCL 780.1003(1).

The county challenges the language in MCL 780.991(1)(a) stating that “[t]he delivery of

[ICD] services shall be independent of the judiciary but ensure that the judges of this state are

permitted and encouraged to contribute information and advice concerning that delivery of [ICD]

services.” (Emphasis added.) The county contends that this language divests the judiciary of its

constitutional authority to establish and enforce minimum standards for delivering effective

assistance of counsel to indigent criminal defendants. Again, however, MCL 780.991(3)(a)

states in its final sentence that “[n]othing in this act shall prevent a court from making a

determination of indigency for any purpose consistent with [Const 1963, art 6].” MCL

780.991(3)(a) also provides that “[a] trial court may play a role in this [indigency] determination

as part of any [ICDS’s] compliance plan under the direction and supervision of the supreme

court, consistent with [Const 1963, art 6, § 4].” The Legislature has thus recognized the

authority of the judicial branch with respect to indigency determinations. Although the exact

respective roles of the ICDSs and the trial courts in making indigency determinations is not fully

addressed by the parties in this case, it is sufficiently clear from MCL 780.991(3)(a) that the

judiciary has not been deprived of its constitutional authority in this area.1 As the MIDC act can

be readily harmonized with the judiciary’s powers, the trial court properly rejected Oakland

County’s facial attack.

IV. LEGALITY OF MINIMUM STANDARDS

Oakland County also contends that the four minimum standards proposed by the MIDC

and approved by LARA violate the separation of powers doctrine and are otherwise not

authorized by law.

The county repeatedly points out that the Supreme Court’s conditional approval of the

standards was automatically withdrawn on December 31, 2016, because the Legislature’s

revisions of the MIDC Act did not take effect by that date. But the expiration of the Supreme

1

The county also refers to the MIDC’s development of a proposed standard to make the

management and delivery of ICD services independent of the judiciary. The county

acknowledges, however, that LARA has not approved any such standard. A minimum standard

proposed by the MIDC must be approved by LARA in order to constitute “a final department

action subject to judicial review . . . .” MCL 780.985(5). “The doctrine of ripeness is designed

to prevent the adjudication of hypothetical or contingent claims before an actual injury has been

sustained. A claim is not ripe if it rests upon contingent future events that may not occur as

anticipated, or indeed may not occur at all.” Huntington Woods v Detroit, 279 Mich App 603,

615-616; 761 NW2d 127 (2008) (quotation marks and citation omitted). The county’s challenge

is premised on hypothetical future events and is therefore not ripe for judicial review. In

addition, it is important to emphasize that actions taken by the MIDC are not pertinent in

determining the constitutionality of the act itself. See Judicial Attorneys Ass’n, 459 Mich at 304

(noting that “[t]he constitutionality of an act must rest on the provisions of the act itself[]” rather

than on subsequent actions taken by persons or entities that are affected by the act).

-8-

Court’s conditional approval is not dispositive because the MIDC was removed from the judicial

branch and placed within the executive branch. See MCL 780.985(1); MCL 780.983(b). It is

LARA, rather than the Supreme Court, that now decides whether to approve a minimum standard

proposed by the MIDC. See MCL 780.985(4), (5); MCL 780.983(b). It is undisputed that

LARA approved the MIDC-proposed standards. Given these developments, the automatic

expiration of the Supreme Court’s conditional approval (based on the prior version of the MIDC

Act) fails by itself to establish that the minimum standards are not authorized by law.

The county further asserts that the standards “micromanage attorneys who represent

indigent defendants, from their education and training to their duties throughout the entire

pendency of a case.” But the county fails to flesh out its argument that Standards 1 and 2 are not

authorized by law. Instead, the county simply quotes or summarizes portions of each standard

and then conclusorily asserts that the standard is unconstitutional under the separation of powers

doctrine because it usurps the Supreme Court’s authority. “It is not sufficient for a party simply

to announce a position or assert an error and then leave it to up this Court to discover and

rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then

search for authority either to sustain or reject his position.” Wilson v Taylor, 457 Mich 232, 243;

577 NW2d 100 (1998) (quotation marks and citation omitted). “An appellant’s failure to

properly address the merits of his assertion of error constitutes abandonment of the issue.”

Houghton ex rel Johnson v Keller, 256 Mich App 336, 339-340; 662 NW2d 854 (2003).

And the trial court correctly concluded that Oakland County failed to establish that

Standard 3 not authorized by law. As the court noted, “[t]he purportedly offending section of

Standard 3 states that ‘Counsel shall request the assistance of experts where it is reasonably

necessary to prepare the defense and rebut the prosecution’s case. Reasonable requests must be

funded as required by law.’ ” The trial court properly explained:

This standard does not conflict with a trial judge’s discretion to permit the

appointment of an expert witness. See MCL 775.15; People v Tanner, 469 Mich

437, 442; 671 NW2d 728 (2003). Rather, the standard notes that experts must be

funded “as required by law.” In other words, the request must be funded “as

required by” the very authority which Oakland County accuses the MIDC of

disregarding. Nor does Standard 3 in any way interfere with the trial court’s gate-

keeping functions under MRE 702. There is no evident conflict.

The county’s remaining contentions consist of merely generalized assertions that lack

sufficient elaboration. The county again contends that the Supreme Court did not delegate its

authority to regulate professional standards and duties of indigent defense counsel to the

legislative or executive branches. The county suggests that the obligation to regulate attorneys

and courts has been “foisted” onto the funding units, which, according to the county, are being

statutorily forced to act as proxies for the MIDC even though the funding units lack

constitutional authority to regulate the conduct of attorneys or to implement or enforce the

minimum standards. These aspects of the county’s argument, however, challenge the provisions

of the act itself and, as already noted, the county’s constitutional challenge lacks merit.

-9-

V. APPOINTED COUNSEL AT ARRAIGNMENTS

The county raises a more specific challenge to Standard 4, asserting that it requires the

appointment of counsel at arraignment even though neither the federal nor state constitution

demand representation at that stage of criminal proceedings.

Standard 4 provides, in pertinent part:

Counsel shall be assigned as soon as the defendant is determined to be eligible for

[ICD] services. The indigency determination shall be made and counsel

appointed to provide assistance to the defendant as soon as the defendant’s liberty

is subject to restriction by a magistrate or judge. Representation includes but is

not limited to the arraignment on the complaint and warrant. Where there are

case-specific interim bonds set, counsel at arraignment shall be prepared to make

a de novo argument regarding an appropriate bond regardless of, and, indeed, in

the face of, an interim bond set prior to arraignment which has no precedential

effect on bond-setting at arraignment. . . .

The county again contends that this standard is not authorized by law and we are again

unconvinced. The county asserts that, by enacting Standard 4, “[t]he MIDC and LARA created a

new constitutional right to counsel at arraignment . . . .” It is true that the federal constitution

does not require the appointment of counsel at arraignment. See People v Green, 260 Mich App

392, 400; 677 NW2d 363 (2004), overruled on other grounds by People v Anstey, 476 Mich 436

(2006); People v Horton, 98 Mich App 62, 72; 296 NW2d 184 (1980). But this does not mean

that the appointment of counsel at arraignment is constitutionally prohibited. Absent a state

constitutional prohibition, states are free to enact legislative “protections greater than those

secured under the United States Constitution . . . .” People v Harris, 499 Mich 332, 338; 885

NW2d 832 (2016). The Legislature did so in the MIDC Act. MCL 780.991(3)(a) provides for a

determination of indigency, which will lead to the appointment of counsel, “not later than the

defendant’s first appearance in court.” (Emphasis added.) In addition, MCL 780.991(2)(d)

provides for continuous representation by the same defense counsel “at every court appearance

throughout the pendency of the case.”2 See also MCL 780.991(1)(c) (providing that “[a]ll adults,

except those appearing with retained counsel or those who have made an informed waiver of

counsel, shall be screened for eligibility under [the MIDC Act], and counsel shall be assigned as

soon as an indigent adult is determined to be eligible for [ICD] services.”).

2

MCL 780.991(2)(d) further provides that ICDSs “may exempt ministerial, nonsubstantive

tasks, and hearings from” the requirement that the same defense counsel continuously represent

and personally appear at every court appearance throughout the case. A comment to Standard 4

states that “an on-duty arraignment attorney” may represent a defendant at an arraignment and

that “[t]his appointment may be a limited appearance for arraignment only with subsequent

appointment of different counsel for future proceedings. In this manner, actual indigency

determinations may still be made during the arraignment.”

-10-

The county’s argument that Standard 4 infringes on the Supreme Court’s constitutional

authority over practice and procedure also lacks merit. Contrary to the county’s challenge,

Standard 4 does not conflict with the Michigan Court Rules. MCR 6.005(B) requires the

arraigning court to determine indigency if the defendant requests a lawyer and claims a financial

inability to retain a lawyer, and lists factors to consider in determining indigency. MCR

6.104(E)(3) requires the arraigning court to advise the defendant “of the right to a lawyer at all

subsequent court proceedings and, if appropriate, appoint a lawyer[.]” MCR 6.005(A)(1)

requires the arraigning court to advise the defendant of the right “to a lawyer’s assistance at all

subsequent court proceedings,” and § (A)(2) provides “that the court will appoint a lawyer at

public expense if the defendant wants one and is financially unable to retain one.” MCR

6.005(D) provides that the court must promptly appoint a lawyer if the defendant is financially

unable to retain a lawyer.

The language of MCR 6.005(B), providing for a determination of indigency at the

arraignment and listing factors to consider in making the indigency determination, does not

expressly conflict with the language of Standard 4, requiring the assignment of counsel as soon

as the defendant is deemed eligible for ICD services, that the indigency determination be made

and counsel appointed as soon as the defendant’s liberty is subject to restriction, and that

representation includes but is not limited to the arraignment. Actual indigency determinations

may still be made at the arraignment in conformance with the court rule. It is possible for an on-

duty arraignment attorney to represent the defendant but different counsel to be appointed for

future proceedings. Court rules providing for advising a defendant concerning his right to

counsel at subsequent court proceedings and providing for the prompt appointment of a lawyer

likewise do not conflict with the language of Standard 4 providing for representation at the

arraignment. Absent an inherent conflict with a court rule, “there is no need to determine

whether there was an infringement or supplantation of judicial . . . authority.” Stenzel v Best Buy

Co, Inc, 320 Mich App 262, 276; 906 NW2d 801 (2017), lv gtd ___ Mich ___; 909 NW2d 255

(2018); see also Kern v Kern-Koskela, 320 Mich App 212, 222; 905 NW2d 453 (2017) (noting

that “this Court should not lightly presume” an intent to create a conflict that calls into question

our Supreme “Court’s authority to control practice and procedure in the courts[]”) (quotation

marks and citations omitted).3 The county’s challenge thus lacks merit.

VI. ADMINISTRATIVE PROCEDURES ACT

Finally, Oakland County asserts that the MIDC’s “rules and procedures” have no force

and effect as the MIDC failed to comply with the promulgation requirements of the APA, MCL

24.201 et seq.

The county acknowledges that the minimum standards established by the MIDC are not

subject to the requirements of the APA. See MCL 24.207(r) (excluding from the definition of a

“rule” under the APA “[a] minimum standard approved or established under authority granted by

the [MIDC Act]”); MCL 780.985(4) (providing that “[a]n approved minimum standard for the

3

In both Stenzel and Kern, this Court addressed a purported conflict between a statute and a

court rule, but the principles set forth in those cases apply by analogy here.

-11-

local delivery of [ICD] services within an [ICDS] is not a rule as defined in section 7 of the

[APA]”). The county contends, however, that the MIDC has enacted compulsory rules and

procedures disguised as guidelines and instructions without complying with the requirements of

the APA.

In defining a “rule” subject to the requirements of the APA, the Legislature expressly

excluded “[a] form with instructions, an interpretive statement, a guideline, an informational

pamphlet, or other material that in itself does not have the force and effect of law but is merely

explanatory.” MCL 24.207(h).

The label an agency gives to a directive is not determinative of whether it

is a rule or a guideline under the APA. Instead, courts must examine the actual

action undertaken by the directive, to see whether the policy being implemented

has the effect of being a rule. An agency may not circumvent APA procedural

requirements by adopting a guideline in lieu of a rule. [Kent Co Aeronautics Bd v

Dep’t of State Police, 239 Mich App 563, 582; 609 NW2d 593 (2000), aff’d sub

nom Byrne v Michigan, 463 Mich 652 (2001) (quotation marks, brackets, and

citations omitted).]

A review of the Guide and the Compliance Plan published by the MIDC reveals that

these documents are merely explanatory and do not contain compulsory provisions. In its

introductory section, the Guide states, “These guidelines are designed to assist with the

preparation of the cost analysis and compliance planning for delivering [ICD] services.” With

respect to cost analysis, the Guide states, in relevant part:

Reasonableness will be stressed and a list or guideline for allowable costs will be

provided. Costs cannot be excessive. It will be difficult for this guideline to be

exhaustive of all possible financial scenarios. To minimize rejections after

official submission, systems should contact their MIDC Regional Manager,

before submissions, to discuss compliance plan costs that pose situations not

addressed in guidelines.

The Guide later indicates that “a rate of no more than $25 per credit hour” should be used for

annual CLE courses.

The Compliance Plan states that “[t]his document includes instructions and a compliance

plan structure for the submission and information on how to calculate your request for state

funding.” It continues, “The following instructions provide general guidance for the Cost

Analysis and, specifically, the enhanced costs to meet the provisions of the four standards. The

costs, expenditures, and rates proposed are presumed reasonable; variations will be considered

on a case-by-case basis.” The Compliance Plan indicates that “[r]egistration for CLE hours will

be allowed at the rate of $25 per credit hour.” It further provides, “If it is necessary to create or

alter building space to provide a confidential setting for attorneys and their clients, renovation

expenses are allowed up to a maximum of $25,000 per location. Requests exceeding $25,000

will be reviewed with higher due diligence and considered with accompanying documentation

for justification.” Also, “[e]xpenses for investigators will be considered at hourly rates not to

-12-

exceed $75.” A tiered level of compensation was provided for experts on the basis of education

level and area of expertise.

The county mischaracterizes the Guide and the Compliance Plan as creating compulsory

provisions. Instead, these documents provide guidance concerning the submission of compliance

plans and cost analyses. An emphasis is placed on making the costs reasonable, i.e., not

excessive. Although certain amounts are essentially designated as reasonable, it is clear that

variations from these amounts will be considered on a case-by-case basis, and ICDSs are

encouraged to contact their MIDC regional manager with questions about costs and particular

items before submitting their compliance plans and cost analyses. As the trial court noted,

“[t]his is indicative of a more flexible, guiding process as is anticipated by MCL 24.207(h),

rather than the imposition of ‘rules,’ as that term is used in the APA.” See Kent Co Aeronautics

Bd, 239 Mich App at 583 (concluding that certain criteria published by a governmental agency

did not create a legal obligation but merely provided advice by way of an explanation and thus

did not comprise rules). The APA therefore does not apply.

We affirm.

/s/ Amy Ronayne Krause

/s/ Elizabeth L. Gleicher

/s/ Anica Letica

-13-