HB-5985, As Passed House, June 12, 2018

HB-5985, As Passed Senate, June 12, 2018

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5985

     A bill to amend 2013 PA 93, entitled

"Michigan indigent defense commission act,"

by amending sections 3, 5, 7, 9, 11, 13, 15, and 17 (MCL 780.983,

780.985, 780.987, 780.989, 780.991, 780.993, 780.995, and 780.997),

sections 3, 5, and 11 as amended by 2016 PA 439, section 9 as

amended by 2016 PA 440, section 13 as amended by 2016 PA 441,

section 15 as amended by 2016 PA 442, and section 17 as amended by

2016 PA 443, and by adding section 22.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 3. As used in this act:

     (a) "Adult" means either of the following:

     (i) An individual 17 years of age or older.

     (ii) An individual less than 17 years of age at the time of

the commission of a felony if any of the following conditions

apply:

     (A) During consideration of a petition filed under section 4

of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

712A.4, to waive jurisdiction to try the individual as an adult and

upon granting a waiver of jurisdiction.

     (B) The prosecuting attorney designates the case under section

2d(1) of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

712A.2d, as a case in which the juvenile is to be tried in the same

manner as an adult.

     (C) During consideration of a request by the prosecuting

attorney under section 2d(2) of chapter XIIA of the probate code of

1939, 1939 PA 288, MCL 712A.2d, that the court designate the case

as a case in which the juvenile is to be tried in the same manner

as an adult.

     (D) The prosecuting attorney authorizes the filing of a

complaint and warrant for a specified juvenile violation under

section 1f of chapter IV of the code of criminal procedure, 1927 PA

175, MCL 764.1f.

     (b) "Consumer Price Index" means the annual United States

Consumer Price Index for all urban consumers as defined and

reported by the United States Department of Labor, Bureau of Labor

Statistics.

(c) (b) "Department" means the department of licensing and

regulatory affairs.

(d) (c) "Effective assistance of counsel" or "effective

representation" means legal representation that is compliant with

standards established by the appellate courts of this state and the

United States supreme court.Supreme Court.

(e) (d) "Indigent" means meeting 1 or more of the conditions

described in section 11(3).

(f) (e) "Indigent criminal defense services" means local legal

defense services provided to a defendant and to which both of the

following conditions apply:

     (i) The defendant is being prosecuted or sentenced for a crime

for which an individual may be imprisoned upon conviction,

beginning with the defendant's initial appearance in court to

answer to the criminal charge.

     (ii) The defendant is determined to be indigent under section

11(3).

(g) (f) Indigent criminal defense services do not include

services authorized to be provided under the appellate defender

act, 1978 PA 620, MCL 780.711 to 780.719.

(h) (g) "Indigent criminal defense system" or "system" means

either of the following:

     (i) The local unit of government that funds a trial court.

     (ii) If a trial court is funded by more than 1 local unit of

government, those local units of government, collectively.

(i) (h) "Local share" or "share" means an indigent criminal

defense system's average annual expenditure for indigent criminal

defense services in the 3 fiscal years immediately preceding the

creation of the MIDC under this act, excluding money reimbursed to

the system by individuals determined to be partially indigent.

Beginning on November 1, 2018, if the Consumer Price Index has

increased since November 1 of the prior state fiscal year, the

local share must be adjusted by that number or by 3%, whichever is

less.

(j) (i) "MIDC" or "commission" means the Michigan indigent

defense commission created under section 5.

     (k) "Partially indigent" means a criminal defendant who is

unable to afford the complete cost of legal representation, but is

able to contribute a monetary amount toward his or her

representation.

     Sec. 5. (1) The Michigan indigent defense commission is

established within the department.

     (2) The MIDC shall retain as an autonomous entity all

statutory authority, powers, duties, functions, records, personnel,

property, unexpended balances of appropriations, allocations, and

other functions, including the functions of budgeting, personnel,

locating offices, and other management functions. Any portion of

funds appropriated to the MIDC that is not expended in a state

fiscal year shall not lapse to the general fund but shall be

carried forward in a work project account that is in compliance

with section 451a of the management and budget act, 1984 PA 431,

MCL 18.1451a, for use in the following state fiscal year. is an

autonomous entity within the department. Except as otherwise

provided by law, the MIDC shall exercise its statutory powers,

duties, functions, and responsibilities independently of the

department. The department shall provide support and coordinated

services as requested by the MIDC including providing personnel,

budgeting, procurement, and other administrative support to the

MIDC sufficient to carry out its duties, powers, and

responsibilities.

(3) The MIDC shall propose minimum standards for the local

delivery of indigent criminal defense services providing effective

assistance of counsel to adults throughout this state. These

minimum standards shall must be designed to ensure the provision of

indigent criminal defense services that meet constitutional

requirements for effective assistance of counsel. However, these

minimum standards shall must not infringe on the supreme court's

authority over practice and procedure in the courts of this state

as set forth in section 5 of article VI of the state constitution

of 1963.

     (4) The commission shall convene a public hearing before a

proposed standard is recommended to the department. A minimum

standard proposed under this subsection shall must be submitted to

the department for approval or rejection. Opposition to a proposed

minimum standard may be submitted to the department in a manner

prescribed by the department. An indigent criminal defense system

that objects to a recommended minimum standard on the ground that

the recommended minimum standard would exceed the MIDC's statutory

authority shall state specifically how the recommended minimum

standard would exceed the MIDC's statutory authority. A proposed

minimum standard is final when it is approved by the department. A

minimum standard that is approved by the department is not subject

to challenge through the appellate procedures in section 15. An

approved minimum standard for the local delivery of indigent

criminal defense services within an indigent criminal defense

system is not a rule as that term is defined in section 7 of the

administrative procedures act of 1969, 1969 PA 306, MCL 24.207.

     (5) Approval of a minimum standard proposed by the MIDC is

considered a final department action subject to judicial review

under section 28 of article VI of the state constitution of 1963 to

determine whether the approved minimum standard is authorized by

law. Jurisdiction and venue for judicial review are vested in the

court of claims. An indigent criminal defense system may file a

petition for review in the court of claims within 60 days after the

date of mailing notice of the department's final decision on the

recommended minimum standard. The filing of a petition for review

does not stay enforcement of an approved minimum standard, but the

department may grant, or the court of claims may order, a stay upon

appropriate terms.

     (6) The MIDC shall identify and encourage best practices for

delivering the effective assistance of counsel to indigent

defendants charged with crimes.

     (7) The MIDC shall identify and implement a system of

performance metrics to assess the provision of indigent defense

services in this state relative to national standards and

benchmarks. The MIDC shall provide an annual report to the

governor, legislature, supreme court, and the state budget director

on the performance metrics not later than December 15 of each year.

     Sec. 7. (1) The MIDC includes 15 18 voting members and the ex

officio member described in subsection (2). The 15 18 voting

members shall be appointed by the governor for terms of 4 years,

except as provided in subsection (4). Subject to subsection (3),

the governor shall appoint members under this subsection as

follows:

     (a) Two members submitted by the speaker of the house of

representatives.

     (b) Two members submitted by the senate majority leader.

     (c) One member from a list of 3 names submitted by the supreme

court chief justice.

     (d) Three members from a list of 9 names submitted by the

criminal defense attorney association Criminal Defense Attorneys of

Michigan.

     (e) One member from a list of 3 names submitted by the

Michigan judges association.Judges Association.

     (f) One member from a list of 3 names submitted by the

Michigan district judges association.District Judges Association.

     (g) One member from a list of 3 names submitted by the state

bar State Bar of Michigan.

     (h) One member from a list of names submitted by bar

associations whose primary mission or purpose is to advocate for

minority interests. Each bar association described in this

subdivision may submit 1 name.

     (i) One member from a list of 3 names submitted by the

prosecuting attorney's association Prosecuting Attorneys

Association of Michigan who is a former county prosecuting attorney

or former assistant county prosecuting attorney.

     (j) One member selected to represent the general public.

     (k) One member selected to represent local units of

government.

     (k) One member representing the funding unit of a circuit

court from a list of 3 names submitted by the Michigan Association

of Counties.

     (l) One member representing the funding unit of a district

court from a list of 3 names submitted by the Michigan Township

Association.

     (m) One member representing the funding unit of a district

court of the third class from a list of 3 names submitted by the

Michigan Municipal League.

     (n) One member from a list of 3 names submitted by the state

budget office.

     (2) The supreme court chief justice or his or her designee

shall serve as an ex officio member of the MIDC without vote.

     (3) Individuals nominated for service on the MIDC as provided

in subsection (1) shall must have significant experience in the

defense or prosecution of criminal proceedings or have demonstrated

a strong commitment to providing effective representation in

indigent criminal defense services. Of the members appointed under

this section, the governor shall appoint no fewer than 2

individuals who are not licensed attorneys. Any individual who

receives compensation from this state or an indigent criminal

defense system for providing prosecution of or representation to

indigent adults in state courts is ineligible to serve as a member

of the MIDC. Not more than 3 judges, whether they are former judges

or sitting judges, shall serve on the MIDC at the same time. The

governor may reject the names submitted under subsection (1) and

request additional names.

     (4) MIDC members shall hold office until their successors are

appointed. The terms of the members shall must be staggered.

Initially, 4 members shall must be appointed for a term of 4 years

each, 4 members shall must be appointed for a term of 3 years each,

4 members shall must be appointed for a term of 2 years each, and 3

members shall must be appointed for a term of 1 year each.

     (5) The governor shall fill a vacancy occurring in the

membership of the MIDC in the same manner as the original

appointment, except if the vacancy is for an appointment described

in subsection (1)(d), the source of the nomination shall submit a

list of 3 names for each vacancy. However, if the senate majority

leader or the speaker of the house of representatives is the source

of the nomination, 1 name shall must be submitted. If an MIDC

member vacates his or her the commission before the end of the

member's term, the governor shall fill that vacancy for the

unexpired term only.

     (6) The governor shall appoint 1 of the original MIDC members

to serve as chairperson of the MIDC for a term of 1 year. At the

expiration of that year, or upon the vacancy in the membership of

the member appointed chairperson, the MIDC shall annually elect a

chairperson from its membership to serve a 1-year term. An MIDC

member shall not serve as chairperson of the MIDC for more than 3

consecutive terms.

     (7) MIDC members shall not receive compensation in that

capacity but shall must be reimbursed for their reasonable actual

and necessary expenses by the state treasurer.

     (8) The governor may remove an MIDC member for incompetence,

dereliction of duty, malfeasance, misfeasance, or nonfeasance in

office, or for any other good cause.

     (9) A majority of the MIDC voting members constitute a quorum

for the transaction of business at a meeting of the MIDC. A

majority of the MIDC voting members are required for official

action of the commission.

     (10) Confidential case information, including, but not limited

to, client information and attorney work product, is exempt from

disclosure under the freedom of information act, 1976 PA 442, MCL

15.231 to 15.246.

     Sec. 9. (1) The MIDC has the following authority and duties:

     (a) Developing and overseeing 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 consistent with the safeguards of the United

States constitution, the state constitution of 1963, and this act.

     (b) Investigating, auditing, and reviewing the operation of

indigent criminal defense services to assure compliance with the

commission's minimum standards, rules, and procedures. However, an

indigent criminal defense service that is in compliance with the

commission's minimum standards, rules, and procedures shall must

not be required to provide indigent criminal defense services in

excess of those standards, rules, and procedures.

     (c) Hiring an executive director and determining the

appropriate number of staff needed to accomplish the purpose of the

MIDC consistent with annual appropriations.

     (d) Assigning the executive director the following duties:

     (i) Establishing an organizational chart, preparing an annual

budget, and hiring, disciplining, and firing staff.

     (ii) Assisting the MIDC in developing, implementing, and

regularly reviewing the MIDC's standards, rules, and procedures,

including, but not limited to, recommending to the MIDC suggested

changes to the criteria for an indigent adult's eligibility for

receiving criminal trial defense services under this act.

     (e) Establishing procedures for the receipt and resolution of

complaints, and the implementation of recommendations from the

courts, other participants in the criminal justice system, clients,

and members of the public.

     (f) Establishing procedures for the mandatory collection of

data concerning the operation of the MIDC, each indigent criminal

defense system, and the operation of indigent criminal defense

services.

     (g) Establishing rules and procedures for indigent criminal

defense systems to apply to the MIDC for grants to bring the

system's delivery of indigent criminal defense services into

compliance with the minimum standards established by the MIDC.

     (h) Establishing procedures for annually reporting to the

governor, legislature, and supreme court. The report required under

this subdivision shall include, but not be limited to,

recommendations for improvements and further legislative action.

     (2) Upon the appropriation of sufficient funds, the MIDC shall

establish minimum standards to carry out the purpose of this act,

and collect data from all indigent criminal defense systems. The

MIDC shall propose goals for compliance with the minimum standards

established under this act consistent with the metrics established

under this section and appropriations by this state.

     (3) In establishing and overseeing the minimum standards,

rules, and procedures described in subsection (1), the MIDC shall

emphasize the importance of indigent criminal defense services

provided to juveniles under the age of 17 who are tried in the same

manner as adults or who may be sentenced in the same manner as

adults and to adults with mental impairments.

     (4) The MIDC shall be mindful that defense attorneys who

provide indigent criminal defense services are partners with the

prosecution, law enforcement, and the judiciary in the criminal

justice system.

     (5) The commission MIDC shall establish procedures for the

conduct of its affairs and promulgate policies necessary to carry

out its powers and duties under this act.

     (6) Commission MIDC policies shall must be placed in an

appropriate manual, made publicly available on a website, and made

available to all attorneys and professionals providing indigent

criminal defense services, the supreme court, the governor, the

senate majority leader, the speaker of the house of

representatives, the senate and house appropriations committees,

and the senate and house fiscal agencies.

     Sec. 11. (1) The MIDC shall establish minimum standards,

rules, and procedures to effectuate the following:

     (a) The delivery of indigent criminal defense services shall

must 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 indigent criminal defense

services.

     (b) If the caseload is sufficiently high, indigent criminal

defense services may consist of both an indigent criminal defender

office and the active participation of other members of the state

bar.

     (c) Trial courts shall assure that each criminal defendant is

advised of his or her right to counsel. All adults, except those

appearing with retained counsel or those who have made an informed

waiver of counsel, shall must be screened for eligibility under

this act, and counsel shall must be assigned as soon as an indigent

adult is determined to be eligible for indigent criminal defense

services.

     (2) The MIDC shall implement minimum standards, rules, and

procedures to guarantee the right of indigent defendants to the

assistance of counsel as provided under amendment VI of the

Constitution of the United States and section 20 of article I of

the state constitution of 1963. In establishing minimum standards,

rules, and procedures, the MIDC shall adhere to the following

principles:

     (a) Defense counsel is provided sufficient time and a space

where attorney-client confidentiality is safeguarded for meetings

with defense counsel's client.

     (b) Defense counsel's workload is controlled to permit

effective representation. Economic disincentives or incentives that

impair defense counsel's ability to provide effective

representation shall must be avoided. The MIDC may develop workload

controls to enhance defense counsel's ability to provide effective

representation.

     (c) Defense counsel's ability, training, and experience match

the nature and complexity of the case to which he or she is

appointed.

     (d) The same defense counsel continuously represents and

personally appears at every court appearance throughout the

pendency of the case. However, indigent criminal defense systems

may exempt ministerial, nonsubstantive tasks, and hearings from

this prescription.

     (e) Indigent criminal defense systems employ only defense

counsel who have attended continuing legal education relevant to

counsels' indigent defense clients.

     (f) Indigent criminal defense systems systematically review

defense counsel at the local level for efficiency and for effective

representation according to MIDC standards.

     (3) The following requirements apply to the application for,

and appointment of, indigent criminal defense services under this

act:

     (a) A preliminary inquiry regarding, and the determination of,

the indigency of any defendant, including a determination regarding

whether a defendant is partially indigent, for purposes of this act

shall must be made as determined by the indigent criminal defense

system not later than at the defendant's first appearance in court.

The determination may be reviewed by the indigent criminal defense

system at any other stage of the proceedings. In determining

whether a defendant is entitled to the appointment of counsel, the

indigent criminal defense system shall consider whether the

defendant is indigent and the extent of his or her ability to pay.

Factors to be considered include, but are not limited to, income or

funds from employment or any other source, including personal

public assistance, to which the defendant is entitled, property

owned by the defendant or in which he or she has an economic

interest, outstanding obligations, the number and ages of the

defendant's dependents, employment and job training history, and

his or her level of education. A trial court may play a role in

this determination as part of any indigent criminal defense

system's compliance plan under the direction and supervision of the

supreme court, consistent with section 4 of article VI of the state

constitution of 1963. If an indigent criminal defense system

determines that a defendant is partially indigent, the indigent

criminal defense system shall determine the amount of money the

defendant must contribute to his or her defense. An indigent

criminal defense system's determination regarding the amount of

money a partially indigent defendant must contribute to his or her

defense is subject to judicial review. Nothing in this act shall

prevent prevents a court from making a determination of indigency

for any purpose consistent with article VI of the state

constitution of 1963.

     (b) A defendant is considered to be indigent if he or she is

unable, without substantial financial hardship to himself or

herself or to his or her dependents, to obtain competent, qualified

legal representation on his or her own. Substantial financial

hardship shall be is rebuttably presumed if the defendant receives

personal public assistance, including under the food assistance

program, temporary assistance for needy families, medicaid,

Medicaid, or disability insurance, resides in public housing, or

earns an income less than 140% of the federal poverty guideline. A

defendant is also rebuttably presumed to have a substantial

financial hardship if he or she is currently serving a sentence in

a correctional institution or is receiving residential treatment in

a mental health or substance abuse facility.

     (c) A defendant not falling below the presumptive thresholds

described in subdivision (b) shall must be subjected to a more

rigorous screening process to determine if his or her particular

circumstances, including the seriousness of the charges being

faced, his or her monthly expenses, and local private counsel rates

would result in a substantial hardship if he or she were required

to retain private counsel.

     (d) A determination that a defendant is partially indigent may

only be made if the indigent criminal defense system determines

that a defendant is not fully indigent. An indigent criminal

defense system that determines a defendant is not fully indigent

but may be partially indigent must utilize the screening process

under subdivision (c). The provisions of subdivision (e) apply to a

partially indigent defendant.

     (e) The MIDC shall promulgate objective standards for indigent

criminal defense systems to determine whether a defendant is

indigent or partially indigent. These standards must include

availability of prompt judicial review, under the direction and

supervision of the supreme court, if the indigent criminal defense

system is making the determination regarding a defendant's

indigency or partial indigency.

     (f) The MIDC shall promulgate objective standards for indigent

criminal defense systems to determine the amount a partially

indigent defendant must contribute to his or her defense. The

standards must include availability of prompt judicial review,

under the direction and supervision of the supreme court, if the

indigent criminal defense system is making the determination

regarding how much a partially indigent defendant must contribute

to his or her defense.

(g) (d) A defendant shall be is responsible for applying for

indigent defense counsel and for establishing his or her indigency

and eligibility for appointed counsel under this act. Any oral or

written statements made by the defendant in or for use in the

criminal proceeding and material to the issue of his or her

indigency shall must be made under oath or an equivalent

affirmation.

     (4) The MIDC shall establish standards for trainers and

organizations conducting training that receive MIDC funds for

training and education. The standards established under this

subsection must require that the MIDC analyze the quality of the

training, and must require that the effectiveness of the training

be capable of being measured and validated.

     (5) An indigent criminal defense system may include in its

compliance plan a request that the MIDC serve as a clearinghouse

for experts and investigators. If an indigent criminal defense

system makes a request under this subsection, the MIDC may develop

and operate a system for determining the need and availability for

an expert or investigator in individual cases.

     Sec. 13. (1) All indigent criminal defense systems and, at the

direction of the supreme court, attorneys engaged in providing

indigent criminal defense services shall cooperate and participate

with the MIDC in the investigation, audit, and review of their

indigent criminal defense services.

     (2) An indigent criminal defense system may submit to the MIDC

an estimate of the cost of developing the plan and cost analysis

for implementing the plan under subsection (3) to the MIDC for

approval. Upon approval, If approved, the MIDC shall award the

indigent criminal defense system a grant to pay the approved costs

for developing the plan and cost analysis under subsection (3).

     (3) No later than 180 days after a standard is approved by the

department, each indigent criminal defense system shall submit a

plan to the MIDC for the provision of indigent criminal defense

services in a manner as determined by the MIDC and shall submit an

annual plan for the following state fiscal year on or before

February October 1 of each year. A plan submitted under this

subsection shall must specifically address how the minimum

standards established by the MIDC under this act shall will be met

and shall must include a cost analysis for meeting those minimum

standards. The standards to be addressed in the annual plan are

those approved not less than 60 180 days before the annual plan

submission date. This The cost analysis shall must include a

statement of the funds in excess of the local share, if any,

necessary to allow its system to comply with the MIDC's minimum

standards.

     (4) The MIDC shall approve or disapprove all or any portion of

a plan or cost analysis, or both a plan and cost analysis,

submitted under subsection (3), and shall do so within 60 90

calendar days of the submission of the plan and cost analysis. If

the MIDC disapproves any part of the plan, the cost analysis, or

both the plan and the cost analysis, the indigent criminal defense

system shall consult with the MIDC and, for any disapproved

portion, submit a new plan, a new cost analysis, or both within 30

60 calendar days of the mailing date of the official notification

of the MIDC's disapproval. If after 3 submissions a compromise is

not reached, the dispute shall must be resolved as provided in

section 15. All approved provisions of an indigent criminal defense

system's plan and cost analysis must not be delayed by any

disapproved portion and must proceed as provided in this act. The

MIDC shall not approve a cost analysis or portion of a cost

analysis unless it is reasonably and directly related to an

indigent defense function.

     (5) The MIDC shall submit a report to the governor, the senate

majority leader, the speaker of the house of representatives, and

the appropriations committees of the senate and house of

representatives requesting the appropriation of funds necessary to

implement the plan for each system approved by the MIDC. compliance

plans after all the systems compliance plans are approved by the

MIDC. For standards approved after January 1, 2018, the MIDC shall

include a cost analysis for each minimum standard in the report and

shall also provide a cost analysis for each minimum standard

approved on or before January 1, 2018, if a cost analysis for each

minimum standard approved was not provided and shall do so not

later than October 31, 2018. The amount requested under this

subsection must be equal to the total amount required to achieve

full compliance as agreed upon by the MIDC and the indigent

criminal defense systems under the approval process provided in

subsection (4). The information used to create this report shall

must be made available to the governor, the senate majority leader,

the speaker of the house of representatives, and the appropriations

committees of the senate and house of representatives.

     (6) The MIDC shall submit a report to the governor, the senate

majority leader, the speaker of the house of representatives, and

the appropriations committees of the senate and house of

representatives not later than October 31, 2021 that includes a

recommendation regarding the appropriate level of local share,

expressed in both total dollars and as a percentage of the total

cost of compliance for each indigent criminal defense system.

(7) (6) Except as provided in subsection (8), (9), an indigent

criminal defense system shall maintain not less than its local

share. If the MIDC determines that funding in excess of the

indigent criminal defense system's share is necessary in order to

bring its system into compliance with the minimum standards

established by the MIDC, that excess funding shall must be paid by

this state. The legislature shall appropriate to the MIDC the

additional funds necessary for a system to meet and maintain those

minimum standards, which funds shall must be provided to indigent

criminal defense systems through grants as described in subsection

(7).(8). The legislature may appropriate funds that apply to less

than all of the minimum standards and may provide less than the

full amount of the funds requested under subsection (5).

Notwithstanding this subsection, it is the intent of the

legislature to fund all of the minimum standards contained in the

report under subsection (5) within 3 years of the date on which the

minimum standards were adopted.

(8) (7) An indigent criminal defense system shall must not be

required to provide funds in excess of its local share. The MIDC

shall provide grants to indigent criminal defense systems to assist

in bringing the systems into compliance with minimum standards

established by the MIDC.

(9) (8) An indigent criminal defense system is not required to

expend its local share if the minimum standards established by the

MIDC may be met for less than that share, but the local share of a

system that expends less than its local share under these

circumstances is not reduced by the lower expenditure.

(10) (9) This state shall appropriate funds to the MIDC for

grants to the local units of government for the reasonable costs

associated with data required to be collected under this act that

is over and above the local unit of government's data costs for

other purposes.

(11) (10) Within 180 days after receiving funds from the MIDC

under subsection (7), (8), an indigent criminal defense system

shall comply with the terms of the grant in bringing its system

into compliance with the minimum standards established by the MIDC

for effective assistance of counsel. The terms of a grant may allow

an indigent criminal defense system to exceed 180 days for

compliance with a specific item needed to meet minimum standards if

necessity is demonstrated in the indigent criminal defense system's

compliance plan. The MIDC has the authority to allow an indigent

criminal defense system to exceed 180 days for implementation of

items if an unforeseeable condition prohibits timely compliance.

(12) (11) If an indigent criminal defense system is awarded no

funds for implementation of its plan under this act, the MIDC shall

nevertheless issue to the system a zero grant reflecting that it

will receive no grant funds.

(13) (12) The MIDC may apply for and obtain grants from any

source to carry out the purposes of this act. All funds received by

MIDC, from any source, are state funds and shall must be

appropriated as provided by law.

     (14) The MIDC shall ensure proper financial protocols in

administering and overseeing funds utilized by indigent criminal

defense systems, including, but not limited to, all of the

following:

     (a) Requiring documentation of expenditures.

     (b) Requiring each indigent criminal defense system to hold

all grant funds in a fund that is separate from other funds held by

the indigent criminal defense system.

     (c) Requiring each indigent criminal defense system to comply

with the standards promulgated by the governmental accounting

standards board.

     (15) If an indigent criminal defense system does not fully

expend a grant toward its costs of compliance, its grant in the

second succeeding fiscal year must be reduced by the amount equal

to the unexpended funds. Identified unexpended grant funds must be

reported by indigent criminal defense systems on or before October

31 of each year. Funds subject to extension under subsection (11)

must be reported but not included in the reductions described in

this subsection. Any grant money that is determined to have been

used for a purpose outside of the compliance plan must be repaid to

the MIDC, or if not repaid, must be deducted from future grant

amounts.

     (16) If an indigent criminal defense system expends funds in

excess of its local share and the approved MIDC grant to meet

unexpected needs in the provision of indigent criminal defense

services, the MIDC shall recommend the inclusion of the funds in a

subsequent year's grant if all expenditures were reasonably and

directly related to indigent criminal defense functions.

     (17) The court shall collect contribution or reimbursement

from individuals determined to be partially indigent under

applicable court rules and statutes. Reimbursement under this

subsection is subject to section 22 of chapter XV of the code of

criminal procedure, 1927 PA 175, MCL 775.22. The court shall remit

100% of the funds it collects under this subsection to the indigent

criminal defense system in which the court is sitting. Twenty

percent of the funds received under this subsection by an indigent

criminal defense system must be remitted to the department in a

manner prescribed by the department and reported to the MIDC by

October 31 of each year. The funds received by the department under

this subsection must be expended by the MIDC in support of indigent

criminal defense systems in this state. The remaining 80% of the

funds collected under this subsection may be retained by the

indigent criminal defense system for purposes of reimbursing the

costs of collecting the funds under this subsection and funding

indigent defense in the subsequent fiscal year. The funds collected

under this subsection must not alter the calculation of the local

share made pursuant to section 3(i).

     Sec. 15. (1) Except as provided in section 5, if a dispute

arises between the MIDC and an indigent criminal defense system

concerning the requirements of this act, including a dispute

concerning the approval of an indigent criminal defense system's

plan, cost analysis, or compliance with section 13 or 17, the

parties shall attempt to resolve the dispute by mediation. The

state court administrator, as authorized by the supreme court,

shall appoint a mediator agreed to by the parties within 30

calendar days of the mailing date of the official notification of

the third disapproval by the MIDC under section 13(4) to mediate

the dispute and shall facilitate the mediation process. The MIDC

shall immediately send the state court administrative office a copy

of the official notice of that third disapproval. If the parties do

not agree on the selection of the mediator, the state court

administrator, as authorized by the supreme court, shall appoint a

mediator of his or her choosing. Mediation shall must commence

within 30 calendar days after the mediator is appointed and

terminate within 60 calendar days of its commencement. Mediation

costs associated with mediation of the dispute shall must be paid

equally by the parties.

     (2) If the parties do not come to a resolution of the dispute

during mediation under subsection (1), all of the following apply:

     (a) The mediator may submit his or her recommendation of how

the dispute should be resolved to the MIDC within 30 calendar days

of the conclusion of mediation for the MIDC's consideration.

     (b) The MIDC shall consider the recommendation of the

mediator, if any, and shall approve a final plan or the cost

analysis, or both, in the manner the MIDC considers appropriate

within 30 calendar days, and the indigent criminal defense system

shall implement the plan as approved by the MIDC.

     (c) The indigent criminal defense system that is aggrieved by

the final plan, cost analysis, or both, may bring an action seeking

equitable relief as described in subsection (3).

     (3) The MIDC, or an indigent criminal defense system may bring

an action seeking equitable relief in the circuit court only as

follows:

     (a) Within 60 days after the MIDC's issuance of an approved

plan and cost analysis under subsection (2)(b).

     (b) Within 60 days after the system receives grant funds under

section 13(7), 13(8), if the plan, cost analysis, or both, required

a grant award for implementation of the plan.

     (c) Within 30 days of the MIDC's determination that the

indigent criminal defense system has breached its duty to comply

with an approved plan.

     (d) The action shall must be brought in the judicial circuit

where the indigent criminal defense service is located. The state

court administrator, as authorized by the supreme court, shall

assign an active or retired judge from a judicial circuit other

than the judicial circuit where the action was filed to hear the

case. Costs associated with the assignment of the judge shall must

be paid equally by the parties.

     (e) The action shall must not challenge the validity,

legality, or appropriateness of the minimum standards approved by

the department.

     (4) If the dispute involves the indigent criminal defense

system's plan, cost analysis, or both, the court may approve,

reject, or modify the submitted plan, cost analysis, or the terms

of a grant awarded under section 13(7) 13(8) other than the amount

of the grant, determine whether section 13 has been complied with,

and issue any orders necessary to obtain compliance with this act.

However, the system shall must not be required to expend more than

its local share in complying with this act.

     (5) If a party refuses or fails to comply with a previous

order of the court, the court may enforce the previous order

through the court's enforcement remedies, including, but not

limited to, its contempt powers, and may order that the state

undertake the provision of indigent criminal defense services in

lieu of the indigent criminal defense system.

     (6) If the court determines that an indigent criminal defense

system has breached its duty under section 17(1), the court may

order the MIDC to provide indigent criminal defense on behalf of

that system.

     (7) If the court orders the MIDC to provide indigent criminal

defense services on behalf of an indigent criminal defense system,

the court shall order the system to pay the following amount of the

state's costs that the MIDC determines are necessary in order to

bring the indigent criminal defense system into compliance with the

minimum standards established by the MIDC:

     (a) In the first year, 10% 20% of the state's costs.

     (b) In the second year, 20% 40% of the state's costs.

     (c) In the third year, 30% 60% of the state's costs.

     (d) In the fourth year, 40% 80% of the state's costs.

     (e) In the fifth year, and any subsequent year, not more than

the dollar amount that was calculated under subdivision (d).

     (8) An indigent criminal defense system may resume providing

indigent criminal defense services at any time as provided under

section 13. When a system resumes providing indigent criminal

defense services, it is no longer required to pay an assessment

under subsection (7) but shall must be required to pay no less than

its share.

     Sec. 17. (1) Except as provided in subsection (2), every local

unit of government that is part of an indigent criminal defense

system shall comply with an approved plan under this act.

     (2) A system's duty of compliance with the terms of 1 or more

standards within the plan as prescribed under subsection (1) is

contingent upon receipt of a grant in the amount sufficient to

cover that particular standard or standards contained in the plan

and cost analysis approved by the MIDC.

     (3) The MIDC may proceed under section 15 if an indigent

criminal defense system breaches its duty of compliance under

subsection (1).

     Sec. 22. (1) The Michigan indigent defense fund is created

within the state treasury.

     (2) The state treasurer may receive money or other assets from

any source for deposit into the fund, including private gifts,

bequests, and donations. The state treasurer shall direct the

investment of the fund. The state treasurer shall credit to the

fund interest and earnings from fund investments.

     (3) Money in the fund at the close of the fiscal year shall

lapse to the general fund.

     (4) The commission shall be the administrator of the fund for

auditing purposes.

     (5) The commission shall expend money from the fund to carry

out its responsibilities under this act.

     Enacting section 1. This amendatory act takes effect 180 days

after the date it is enacted into law.