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Case Name Duncan v. State of Michigan PD-MI-0003
Docket / Court LC No. 07-000242-CZ ( State Court )
State/Territory Michigan
Case Type(s) Indigent Defense
Attorney Organization ACLU Chapters (any)
ACLU National Prison Project
Michigan ACLU
Case Summary
On February 22, 2007, eight indigent felony defendants filed a 42 U.S.C. §1983 lawsuit against the State of Michigan and its governor, Jennifer M. Granholm, in a Michigan state court, specifically, the Circuit Court for Ingham County, Michigan. The plaintiffs, represented by the American Civil ... read more >
On February 22, 2007, eight indigent felony defendants filed a 42 U.S.C. §1983 lawsuit against the State of Michigan and its governor, Jennifer M. Granholm, in a Michigan state court, specifically, the Circuit Court for Ingham County, Michigan. The plaintiffs, represented by the American Civil Liberties Union of Michigan and private counsel, requested class certification to represent a proposed class of all indigent adults who had been charged or would be charged with felonies in the District and Circuit Courts of Berrien, Genesee, and Muskegon Counties and who relied or would rely on the Counties to provide them with counsel for their defense.

The plaintiffs sought declaratory and injunctive relief, claiming that the State abdicated its constitutional and statutory responsibility by delegating responsibility for indigent defense to individual counties and failing to fund or provide oversight for such services. Plaintiffs complained of a number of resulting deficiencies including: underfunding, inadequate training, overwhelming caseloads, and the lack of standards for performance and workload. Plaintiffs claimed that the resulting system failed to provide indigent defendants with constitutionally adequate representation. The plaintiffs requested that the court declare the current public defense system unconstitutional and order (via injunctive relief) that the State provide representation consistent with the requirements of the U.S. and Michigan constitutions.

On May 16, 2007, Judge Laura Baird of the Ingram County Circuit Court denied the state's motion to dismiss based on governmental immunity, and granted class certification. The state appealed. On June 11, 2009, the Michigan Court of Appeals, in consolidated appeals of the trial court's decisions, affirmed the trial court on all counts, holding that the state is not shielded by governmental immunity and that the trial court properly certified the class.

Again, the State appealed, and on December 18, 2009, the Michigan Supreme Court agreed to hear the case, putting it on the April 2010 session calendar. Briefs of amici curiae were submitted to the Michigan Supreme Court by the Criminal Defense Attorneys of Michigan, the National Association of Criminal Defense Lawyers, the Brennan Center for Justice, the NAACP Legal Defense & Educational Fund, the Constitution Project and the University of Michigan Innocence Clinic.

On April 30, 2010, the Michigan Supreme Court, after hearing oral arguments, vacated the trial court's order granting the plaintiffs' motion for class certification and remanded the case to the Ingham Circuit Court for consideration of the plaintiffs' motion for class certification. Also, the Michigan Supreme Court affirmed the result only of the Court of Appeals majority claiming that the defendants were not entitled to summary judgment as it was premature to make a decision on the substantive issues in the case. 780 N.W.2d 843.

In a surprising development, on July 16, 2010, the Michigan Supreme Court granted reconsideration and vacated its April 30, 2010 order thereby reversing the June 11, 2009 Court of Appeals decision for the reasons stated in that dissenting opinion including the plaintiffs' lack of standing. The order remanded the case to the Ingham Circuit Court, ordering entry of summary judgment in favor of the defendants. 784 N.W.2d 51.

On November 30, 2010, the Court again granted reconsideration, and reinstated the April 30 ruling, holding that first reconsideration was improperly granted. 790 N.W.2d 695. Two additional requests for reconsideration were denied. 791 N.W.2d 721 and 795 N.W.2d 820.

We have no further information about the progression of this case at the moment. However, on October 13, 2011, at least partly in response to this case and to campaigning by the ACLU of Michigan and other groups, Michigan Governor Rick Snyder issued an Executive Order establishing an 14-member Indigent Defense Advisory Commission charged with compiling a report on the status of indigent defense in the State and making recommendations on its improvement.

On June 22, 2012, the Commission released its report, finding that Michigan's history of delegating its responsibility to provide counsel to indigent defendants to the counties, as political-subdivisions of the State, had resulted in an uncoordinated, 83-county "patchwork quilt" with no standards as to the adequate of counsel or the level of funding. There was no State-level regulatory guidance as to what level of service would be constitutionally adequate. Most legal practitioners involved in the Michigan criminal justice system (judges, prosecutors, and indigent defense attorneys) who testified before the Commission acknowledged that the American Bar Association's recommendations for a minimally constitutionally adequate indigent defense system were not being met in Michigan. The report acknowledged Michigan ranked 44th in per capita indigent defense spending, spending 38% less than the national average. Only three of the State's 57 circuit courts funded indigent defense at or above the national average, and if it were to meet the national average the State would have to increase its total annual spending for indigent defense by nearly $50,000,000. The Commission recognized that the widespread inadequacy of indigent defense had led to higher than necessary levels of wrongful convictions, sentencing errors, and appeals resulting from ineffective assistance of counsel. It found that these avoidable errors cost the State millions of dollars.

Other recommendations included mandatory relevant continuing legal education for defense counsel, that defense counsel workloads be controlled and economic incentives encouraging the overburdening of attorneys be eliminated, and that defense counsel be provided with sufficient time and confidential space in order to consult with defendants.

The Commission recommended the State create a system that would ensure state-wide implementation of the ABA's minimum standards, and which would provide adequate funding. The Commission found that the creation of a new independent State agency, in the judicial branch, would be necessary to enforce these standards.

In June 2013, Michigan passed legislation establishing a permanent Michigan Indigent Defense Commission, largely following the recommendations of the earlier Commission's report. The commission will develop statewide standards, and the State will be obligated to provide funding to local county systems in order to maintain these standards if local funding is insufficient.

David Miller - 11/29/2010
Alex Colbert-Taylor - 06/28/2013


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Issues and Causes of Action
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Issues
Crowding
Crowding / caseload
General
Conflict of interest
Funding
Quality of representation
Plaintiff Type
Private Plaintiff
Causes of Action State law
42 U.S.C. § 1983
Defendant(s) State of Michigan
Plaintiff Description All indigent adults who have been charged or will be charged with felonies in the District and Circuit Courts of Berrien, Genesee, and Muskegon Counties and who rely or will rely on the counties to provide them with counsel for their defense.
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU National Prison Project
Michigan ACLU
Class action status sought Yes
Class action status granted Yes
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Additional Resources
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Case Studies Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel
Written: May. 07, 2007
By: Vidhya K. Reddy (Washington University in St. Louis)
[ Detail ] [ PDF ]

  Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel.
Written: Apr. 14, 2009
By: National Right to Counsel Committee (The Constitution Project)
Citation: National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009)
[ Detail ] [ PDF ] [ External Link ]

  Securing Reasonable Caseloads: Ethics and Law in Public Defense
By: Norman Lefstein (Indiana University--Indianapolis)
Citation: (ABA 2011)
[ Detail ] [ External Link ]

  The Third Generation of Indigent Defense Litigation
New York University Review of Law and Social Change
By: Cara Drinan (Columbus School of Law, Catholic University)
Citation: 33 N.Y.U. Rev. L. & Soc. Change 427 (2009)
[ Detail ] [ External Link ]

Docket(s)
278652 (State Court of Appeals) 12/18/2009
PD-MI-0003-9001 PDF | Detail
State Court Website
139345-7 (State Supreme Court) 10/14/2010
PD-MI-0003-9000 PDF | Detail
State Court Website
General Documents
Complaint 02/22/2007
PD-MI-0003-0001 PDF | Detail
Document Source:
ACLU Press Release 02/22/2007
PD-MI-0003-0002 PDF | Detail
Document Source: ACLU National Prison Project
Opinion (Michigan Court of Appeals) 06/11/2009 (774 N.W.2d 89)
PD-MI-0003-0006 PDF | WESTLAW| LEXIS | Detail
Document Source: State Court Website
Order [Michigan Supreme Court] 12/18/2009 (775 N.W.2d 745)
PD-MI-0003-0004 PDF | WESTLAW| LEXIS | Detail
Document Source: ACLU National Prison Project
ACLU Press Release 12/21/2009
PD-MI-0003-0003 PDF | Detail
Document Source:
Press Release 12/21/2009
PD-MI-0003-0007 PDF | Detail
Appellants Brief [Michigan Supreme Court] 02/08/2010
PD-MI-0003-0010 PDF | Detail
Document Source: State Court Website
Plaintiffs-Appellees' Brief on Appeal [Michigan Supreme Court] 03/12/2010
PD-MI-0003-0008 PDF | Detail
Document Source: State Court Website
Amicus Curiae Brief - Criminal Defense Attorneys of Michigan [Michigan Supreme Court] 03/29/2010
PD-MI-0003-0012 PDF | Detail
Document Source: State Court Website
Brief of Amici Curiae - National Association of Criminal Defense Lawyers, Brennan Center for Justice, NAACP Legal Defense & Educational Fund, and the Constitution Project [Michigan Supreme Court] 03/29/2010
PD-MI-0003-0013 PDF | Detail
Document Source: State Court Website
Amicus Curiae Brief - University of Michigan Innocence Clinic [Michigan Supreme Court] 03/29/2010
PD-MI-0003-0014 PDF | Detail
Document Source: State Court Website
Appellants' Reply Brief [Michigan Supreme Court] 04/02/2010
PD-MI-0003-0011 PDF | Detail
Document Source: State Court Website
Order to Vacate and Remand [Michigan Supreme Court] 04/30/2010 (780 N.W.2d 843)
PD-MI-0003-0009 PDF | WESTLAW| LEXIS | Detail
Document Source: State Court Website
Order to Remand the Case to Circuit Court for Entry of Summary Disposition in Favor of the Defendants [Michigan Supreme Court] 07/16/2010 (784 N.W.2d 51)
PD-MI-0003-0015 PDF | WESTLAW| LEXIS | Detail
Document Source: State Court Website
Attorneys' Press Release (re: Michigan Supreme Court Decision) 07/19/2010
PD-MI-0003-0016 PDF | Detail
Document Source:
Order [Reversing July 16 order and reinstating order of April 30, 2010] 11/30/2010 (790 N.W.2d 695)
PD-MI-0003-0017 PDF | WESTLAW| LEXIS | Detail
Document Source:
Order and Opinion 12/29/2010 (791 N.W.2d 721)
PD-MI-0003-0018 PDF | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order and Opinion 04/08/2011 (795 N.W.2d 820)
PD-MI-0003-0019 PDF | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Executive Order No. 2011 - 12 [establishing Indigent Defense Advisory Commission] 10/13/2011
PD-MI-0003-0020 PDF | Detail
Report by Indigent Defense Advisory Commission 06/22/2012
PD-MI-0003-0021 PDF | Detail
Judges Baird, Laura (State Trial Court)
PD-MI-0003-0003
Cavanagh, Michael F. Court not on record
PD-MI-0003-0004 | PD-MI-0003-0015 | PD-MI-0003-0017 | PD-MI-0003-9000
Corrigan, Maura D. (State Supreme Court)
PD-MI-0003-0015 | PD-MI-0003-0017 | PD-MI-0003-9000
Davis, Alton Thomas (State Supreme Court)
PD-MI-0003-0017
Hathaway, Diane M. Court not on record
PD-MI-0003-0004 | PD-MI-0003-0015 | PD-MI-0003-0017 | PD-MI-0003-9000
Kelly, Marilyn (State Supreme Court)
PD-MI-0003-0004 | PD-MI-0003-0015 | PD-MI-0003-0017 | PD-MI-0003-0019 | PD-MI-0003-9000
Markman, Stephen J. Court not on record
PD-MI-0003-0004 | PD-MI-0003-0015 | PD-MI-0003-0017 | PD-MI-0003-0018 | PD-MI-0003-9000
Murphy, William B. (State Appellate Court)
PD-MI-0003-0003 | PD-MI-0003-0006
Sawyer, David H. (State Appellate Court)
PD-MI-0003-0006
Weaver, Elizabeth A. (State Supreme Court)
PD-MI-0003-0015 | PD-MI-0003-9000
Whitbeck, William C. (State Appellate Court)
PD-MI-0003-0006
Young, Robert P. Jr. (State Supreme Court)
PD-MI-0003-0004 | PD-MI-0003-0015 | PD-MI-0003-0017 | PD-MI-0003-9000
Monitors/Masters None on record
Plaintiff's Lawyers Dahlberg, Robin L. (New York)
PD-MI-0003-0001 | PD-MI-0003-0003 | PD-MI-0003-0008
Eaman, Frank D (Michigan)
PD-MI-0003-0001 | PD-MI-0003-0003 | PD-MI-0003-0008 | PD-MI-0003-9000 | PD-MI-0003-9001
Fancher, Mark P. (Michigan)
PD-MI-0003-0001 | PD-MI-0003-0003 | PD-MI-0003-0003 | PD-MI-0003-0008
Granzotto, Mark (Michigan)
PD-MI-0003-0003 | PD-MI-0003-0008 | PD-MI-0003-9000 | PD-MI-0003-9001
Gupta, Vanita (New York)
PD-MI-0003-0001 | PD-MI-0003-0002
Kennedy, Elizabeth (New York)
PD-MI-0003-0001
Moss, Kary L. (Michigan)
PD-MI-0003-0001 | PD-MI-0003-0003 | PD-MI-0003-0008
North, Julie A. (New York)
PD-MI-0003-0001 | PD-MI-0003-0002 | PD-MI-0003-0003 | PD-MI-0003-0008
Rossman, Jessie J. (Michigan)
PD-MI-0003-0003 | PD-MI-0003-0008 | PD-MI-0003-9000
Steinberg, Michael J. (Michigan)
PD-MI-0003-0001 | PD-MI-0003-0002 | PD-MI-0003-0003 | PD-MI-0003-0008 | PD-MI-0003-9000 | PD-MI-0003-9001
Defendant's Lawyers Cox, Michael A. (Michigan)
PD-MI-0003-0010 | PD-MI-0003-0011
Nelson, Margaret A. (Michigan)
PD-MI-0003-0010 | PD-MI-0003-0011 | PD-MI-0003-9000 | PD-MI-0003-9001
Restuccia, B. Eric (Michigan)
PD-MI-0003-0010 | PD-MI-0003-0011
Sherman, Ann (Michigan)
PD-MI-0003-0010 | PD-MI-0003-0011 | PD-MI-0003-9000
Other Lawyers Abrahams, Erin L. (Michigan)
PD-MI-0003-9000
Adegbile, Debo Patrick (New York)
PD-MI-0003-0013
Bannon, Alicia L. (New York)
PD-MI-0003-0013
Clark, Melanca D. (New York)
PD-MI-0003-0013
Dimino, Maureen (District of Columbia)
PD-MI-0003-0013
DuMouchel, David F. (Michigan)
PD-MI-0003-0013
Ellis, Nicholas (Michigan)
PD-MI-0003-0014
Giovan, William (Michigan)
PD-MI-0003-9000
McCormack, Bridget (Michigan)
PD-MI-0003-0014
Menges, Jason D. (Michigan)
PD-MI-0003-0014
Michelson, Laurie Jill (Michigan)
PD-MI-0003-0013
Moran, David A. (Michigan)
PD-MI-0003-0014
Mullin, Mary M. (Michigan)
PD-MI-0003-0013 | PD-MI-0003-9000
O'Hair, John (Michigan)
PD-MI-0003-9000
Payton, John A. (District of Columbia)
PD-MI-0003-0013
Raben, Margaret Sind (Michigan)
PD-MI-0003-0012 | PD-MI-0003-9000
Schmid, Mary J. (District of Columbia)
PD-MI-0003-0013
Sloan, Virginia (District of Columbia)
PD-MI-0003-0013
Steinberg, Johanna B. (New York)
PD-MI-0003-0013
Swarns, Christina (New York)
PD-MI-0003-0013
Thomas, Kim (Michigan)
PD-MI-0003-9000
Toomey, Erin L. (Michigan)
PD-MI-0003-0014
Udell, David S. (New York)
PD-MI-0003-0013
Uetz, Ann Marie (Michigan)
PD-MI-0003-0014

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