STATE OF MICHIGAN IN THE COURT OF CLAIMS COUNTY OF OAKLAND, Claimant, ovs- STATE OF MICHIGAN, MICHIGAN DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS, AND MICHIGAN INDIGENT DEFENSE COMMISSION Respondents, Keith Lerminiaux (P30190) Oakland County Corporation Counsel 1200 N Telegraph Rd., Dept. 419 Pontiac, MI 48341-1032 Main: (248) 858-0550 lerminiauxk@oakgov.com Mary Ann Jerge (P46574) Oakland County Assistant Corporation Counsel ; 1200 N Telegraph Rd., Dept. 419 : Pontiac, MI 48341-1032 Main: (248) 858-0550 a jergem@oakgov.com g / COMPLAINT FOR DECLARATORY RELIEF AND A STAY OF PROCEEDINGS The County of Oakland (County or Oakland County) brings this complaint for declaratory relief and a stay of proceedings against the State of Michigan, the Michigan Department of Licensing and Regulatory Affairs, and the Michigan Indigent Defense Commission, and in support thereof and hereby alleges as follows:1. INTRODUCTION . This lawsuit arises from Plaintiff's statutory right to petition for a review of the amendments to the Michigan Indigent Defense Commission Act (MIDC Act), MCL 780.981 et al, and minimum standards authorized by Michigan Department of Licensing and Regulatory Affairs (LARA). MCL 780.985(5) and Article 6, §28 of the Michigan Constitution of 1963. ‘The Michigan Supreme Court has the constitutional authority under Article 6, §5 of the Michigan Constitution to regulate the conduct and activities of the members of the State Bar, 1 defense attorneys, The Michigan Supreme Court also has the power under including e: ‘Article 6, §5 to regulate the practice of law and procedures utilized in judicial proceedings. Finally, the judiciary has the constitutional responsibility to supervise the administration of justice in all the courts of the State under Article 6, §4. . The MIDC Act and LARA approved standards violate the separation of powers doctrine under Article 3, §2 of the Michigan Constitution. They conflict with the judiciary’s inherent authority (o perform their constitutional duties as outlined in paragraph 2. . The MIDC established rules and procedures are invalid and do not have the force of law because MIDC did not comply with the procedural requirements of the Administrative Procedures Act (APA), MCL 24.201 et seq. . Therefore, the County requests that this Court enter a Declaratory Judgment finding the MIDC Act and LARA approved standards are unconstitutional. ‘The County further requests that this Court enter an order that the MIDC “Guide for Submission of Compliance Plans, Cost Analyses, and Local Share Calculations” is invalid under Michigan law because the MIDF failed to comply with the APA and an order the MIDC to comply with the Administrative Procedures Act, MCL 24. 201 et seq.6. Further, the County requests this Court enter an order staying the enforcement of MCL. 780.9933) requiring local funding units to submit compliance plans and cost analyses by November 20, 2017 until this Court makes a decision on the merits of this complaint. I, PARTIES 7. Plaintiff is the County of Oakland, Michigan, a municipal corporation organized and existing in accordance with Michigan law. Plaintiff is the local funding unit for the 6" Circuit Court and the four election divisions of the 52" District Court, 8. Defendant State of Michigan is a governmental entity formed and authorized by the Michigan Constitution. 9. Defendant Department of Licensing and Regulatory Affairs is an executive branch department authorized by the Michigan Constitution, 10. Defendant Michigan Indigent Defense Commission is an executive branch commission within an executive branch department enabled by statutory authority. I. JURISDICTION 11. This Court has jurisdiction pursuant to MCL 780.985(5), MCL 600.6419 and Article 6, §28 of the Michigan Constitution of 1963. Iv. FACTUAL BACKGROUND 12.0n July 1, 2013, MIDC Act, PA 93 of 2013 created the Michigan Indigent Defense Commission (hereinafter MIDC) in the “judicial branch of government.” © MIDC was given the authority to establish and adopt minimum indigent defense standards. 14. On January 4, 2016, the MIDC submitted its initial set of four standards to the Michigan Supreme Court for review.15. On June 1, 2016, the Michigan Supreme Court conditionally approved the first set of four standards for indigent defense systems in its Administrative Order No. 2016-2. In its Order, the Michigan Supreme Court expressed its concern that various provisions of the MIDC Act and the MIDC minimum standards violated Article 3 §2, Article 6 §4, and Article 6 §5 of the Michigan Constitution. 16, The Michigan Supreme Court’s conditional approval was contingent on legislative revisions of the MIDC Act and the MIDC minimum standards that would address the constitutional issues raised by the Michigan Supreme Court by December 31, 2016. 17. On January 4, 2017, the legislative amendments to the MIDC Act, MCL 780.981 et al, were enacted into law after the Michigan Supreme Court’s conditional approval of the minimum indigent defense standards expired, The amendments made the following substantive changes to the MIDC Act: a. The MIDC was moved from the judicial branch to the executive branch within LARA. MCL 780.983(b) and MCL 780.985(1) and (2). b. The defined term “indigent criminal defense system” is redefined as “the local unit of government that funds the trial court,” thus, eliminating trial courts from the definition. MCL 780(g)(i). c. The MIDC At also mandates that the “delivery of indigent criminal defense services shall be independent of the judiciary.” MCL 780.991(1)(a). d. The MIDC Act requires local funding units of government (cities, villages, townships, and counties) to take over the delivery of criminal indigent defense services.18, Oakland County is the local unit of government that funds the 6" Circuit Court and the four 52" District Courts. 19. The MIDC Act mandates that local funding units create compliance plans and cost analyses required to take over administration and delivery of criminal indigent defense services. MCL 780.993(3). 20. The MIDC Act requires all funding units to determine their “local share,” defined as the funding unit’s average annual expenditures for indigent defense services for Fiscal Years 2010, 2011, and 2012. MCL 780.983(h). 21, Local funding units must estimate the cost of developing the compliance plans and create a cost analysis for implementing the plan, MCL 780.993(2). 22, “The cost analysis shall 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.” MCL 780.993(3).. 23. On Januaty 20, 2017, Michigan Supreme Court Administrator Milton Mack, Jr., sent a memo fated that the MIDC Act amendments and LARA approved to all. chief judges which minimum standards were enacted without the approval of the Michigan Supreme Court. 24, On February 7, 2017, the MIDC submitted the first four minimum indigent defense service standards to LARA for approval pursuant to MCL 780.985(4). 25. On May 22, 2017, the MIDC’s proposed minimum standards were approved by LARA in its Notice and Order Approving Standards. 26. On June 20, 2017, the MIDC approved its “Guide for Submission of Compliance Plans, Cost Analyses, and Local Share Calculations” which contains multiple compulsory pro requiring compliance by local funding units.27. The MIDC does not comply with the APA MCL 24.201 et seq. when promulgating is compulsory rules and procedures. 28, Oakland County is devoting personnel and financial resources to develop the mandatory compliance plan and cost analysis required by MCL 780.993(3). The County is planning for the restructuring of County operations to take over the delivery of indigent defense services and planning for the implementation of courthouse and county jail building renovations required by the MIDC Act and LARA approved standards. 29, Local funding units must have their compliance plans and cost projections for developing and implementing the compliance plans submitted to LARA by November 20, 2017. 30. MCL 780.985(5) gives local funding units the ability to file a petition for review to determine whether the approved minimum standards are authorized by law. The petition must be filed in the Court of Claims within 60 days after approval by LARA. V. CLAIMS FOR RELIEF COUNTI THE MIDC ACT ALLOWS THE MIDC TO REGULATE THE PRACTICE OF LAW IN VIOLATION OF THE SEPARATION OF POWERS DOCTRINE UNDER ARTICLE 3, §2 OF THE MICHIGAN CONSTITUTION OF 1963 AND IS THEREFORE UNCONSTITUTIONAL. 31. Plaintiff incorporates the allegations contained in paragraph 1 through 30 as if fully set forth herein. 32. The Michigan Supreme Court has the exclusive authority to establish, implement and enforce professional attorney standards under Article 6, §5 of the Michigan Constitution. 33. The MIDC Act empowers the MIDC to directly regulate the minimum qualifications and activities of indigent criminal defense attorneys. MCL 780.991 (2). 634. The MIDC Standard 1 regulation establishes minimum education, training and continuing legal education requirements for indigent defense attorneys. 35. The MIDC Standard 2 regulation establishes minimum duties of an indigent defense attomey uring the initial interview with a client. 36. The MIDC Standard 3 regulation requires indigent defense attomeys, when appropriate, to conduct independent investigations, request funds for investigators, and request the assistance and funding of experts 37. The MIDC Standard 4 regulation establishes the duties of indigent defense attorneys at arraignments. 38. The MIDC Act gives the MIDC the exclusive authority to enforce “the commission’s minimum standards, rules and procedures.” MCL 780.989(1)(b). 39. The MIDC Act is facially unconstitutional under the separation of powers doctrine, Article 3, §2, because it empowers LARA to usurp the Michigan Supreme Court’s constitutional authority to regulate and enforce minimum qualifications and professional standards for attomeys who represent indigent criminal defendants. COUNT THE MIDC ACT AND THE LARA APPROVED STANDARDS ARE INVALID AND UNCONSTITUTIONAL BECAUSE THEY INFRINGE ON THE MICHIGAN SUPREME, COURT’S EXCLUSIVE AUTHORTIY TO PROMULGATE RULES GOVERNING PRACTICE AND PROCEDURE UNDER ARTICLE 6, §5 OF THE MICHIGAN CONSTITUTION. 40. Plaintiff incorporates the allegations contained in paragraph 1 through 39 as if fully set forth herein. 41, The Michigan Supreme Court has the exclusive authority to promulgate rules governing the practice law and procedure under Article 6, §5 of the Michigan Constitution of 196342, The MIDC directly regulates the practice and procedures of district court arraignments in violation of Article 6, § 5 of the Michigan Constitution of 1963. 43, The MIDC Standard 4 regulates the practice and procedure of district court arraignments by imposing a duty on local funding units to appoint defense counsel before arraignments, in conflict with established Michigan Court Rules. See MCR 6.005, MCR 6.610. 44. The MIDC Act MCL 780.991(3)(a) regulates the practice and procedures of court proceedings by mandating that local funding units shall make indigency determinations, in direct conflict with established Michigan Court Rules. See MCR 6.005. 45, MCL 780.991(1)(a) and the MIDC Standard 3 governing the appointment of defense experts conflict with the judiciary’s settled constitutional and statutory authority to evaluate and approve defense experts in criminal proceedings. Article 6, §5 of the Michigan Constitution, MCL 775.15, MRE 702 and MRE 706. 46, The MIDC Act and the LARA approved standards are facially unconstitutional under Article 6, §5 because they usurp the Michigan Supreme Court’s constitutional authority to promulgate rules governing practice and procedure in Michigan Courts. COUNT I THE MIDC ACT AND THE LARA APPROVED STANDARDS ARE INVALID AND UNCONSTITUTIONAL BECAUSE THEY INFRINGE ON THE MICHIGAN SUPREME COURT’S EXCLUSIVE AUTHORTY TO SUPERINTEND THE ADMINISTRATION OF JUSTICE INALL STATE COURTS UNDER ARTICLE 6, §4 OF THE MICHIGAN CONSTITUTION OF 1963. 47. Plaintiff incorporates the allegations contained in paragraph 1 through 46 as if fully set forth herein,48. The Michigan Supreme Court has the constitutional responsibility to superintend the administration of justice and enforce over all the courts of the state, Article 6, §4 of the Michigan Constitution of 1963. 49. The MIDC Act and LARA approved standards impermissibly regulates day to day operations of criminal court proceedings and impinges on the Michigan Supreme Court's specific constitutional function of supervising the judicial branch under Article 6, §4. COUNT IV THE MIDC ESTABLISHED RULES AND PROCEDURES ARE INVALID AND DO NOT HAVE THE FORCE OF LAW BECAUSE THE MIDC IS NOT COMPLIANT WITH THE REQUIREMENTS OF THE ADMINISTRATIVE PROCEDURES ACT, MCL 24.201 et seq. 50. Plaintiff incorporates the allegations contained in paragraph 1 through 49 as if fully set forth herein. 51. The legislature exempted only the LARA adopted “minimum standards” from the notice and public hearing requirements of the APA. MCL 24. 207(1). 52, The legislature did not exempt MIDC promulgated rules and procedures from requirements of the APA. 53. MIDC is promulgating mandatory rules and procedures beyond its statutory authority and without complying with the APA. 54. The legislature did not authorize the MIDC and its staff to dictate who a local funding unit should hite to run its indigent defense program, set arbitrary limits on continuing legal education disbursements, set arbitrary limits on building renovations required by the MIDC ‘Act, or dictate what are “allowable” expenditures by local funding units in compliance plans.55. The MIDC approved “Guide for Submission of Compliance Plans, Cost Analyses, and Local within the Share Calculations” contains multiple compulsory provisions and are “ru definition contained in the APA. 56. LARA and MIDC’s failure to follow the APA process render the promulgated rules invalid and unenforceable. VI. REQUEST FOR RELIEF Oakland County respectfully requests the Court to award the following relief against the Defendants: A. A declaratory judgment that the MIDC Act as amended is unconstitutional pursuant to Article 3, §2 of Article 6, §5, and Article 6, §4 of the Michigan Constitution. B. A declaratory judgment that the LARA approved minimum indigent defense standards are unconstitutional pursuant to Article 3, §2 of Article 6, §5, and Article 6, §4 of the Michigan Constitution, C. An Order that determines the controlling authority when provisions of the MIDC Act and MIDC minimum standards conflict with Michigan Court Rules. D. An Order finding the MIDC “Guide for Submission of Compliance Plans, Cost Analyses, and Local Share Calculations” is invalid under Michigan law. ‘An Order that requires the MIDC to comply with the with the Administrative Procedures Act, MCL 224.201 et seq. ‘An Order for a stay of proceedings under MCL 780,985(5), staying the enforcement of MCL 780.993(3) until the merits of this action are decided.Respectfully submitted, Dated: L7 Dated: _/ 1/} a Keith (eimifiiaux (P30190) OaklatCounty Corporation Counsel 1200 N Telegraph Rd., Dept. 419 Pontiac, MI 48341-1032 ‘Main: (248) 858-0550 Jerminiauxk@oakgov.com Counsel 1200 N Telegraph Rd., Dept. 419 Pontiac, MI 48341-1032 Main: (248) 858-0550 jergem@oakgov.com ul