Mich. Admin. Ord. Administrative Order No. 1989-3
On order of the Court, 1978 PA 620 authorized the Appellate Defender Commission to develop a system of indigent appellate defense services to include services provided by the Office of the State Appellate Defender and locally appointed private counsel. This legislation also authorized the Commission to compile and keep current a statewide roster of attorneys eligible for and willing to accept appointment by an appropriate court to serve as criminal appellate defense counsel for indigents.
The Legislature provided that the appointment of criminal appellate defense attorneys for indigents was to be made by the trial court from the roster provided by the Commission or should be referred to the Office of the State Appellate Defender. Since that time the Appellate Defender Commission has adopted the Michigan Appellate Assigned Counsel System Regulations. We have examined those regulations, as adopted by the Appellate Defender Commission effective November 15, 1985 and as amended January 28, 1988, and, pursuant to our power of general superintending control over all courts under Const 1963, art 6, ? 4, we order the judges of each circuit and of the Recorder's Court of the City of Detroit to comply with ? 3 of those regulations. The text of ? 3 follows:
(1) The judges of each circuit and of Recorder's Court shall appoint a local designating authority who may be responsible for the selection of assigned appellate counsel from the local list provided by the appellate assigned counsel administrator pursuant to ? 2(2) of these regulations and who shall perform such other tasks in connection with the operation of the list as may be necessary at the trial court level.
(a) The designating authority may not be a judge, prosecutor or member of the prosecutor's staff, public defender or member of the public defender's staff, or any attorney in private practice who currently accepts trial or appellate criminal assignments within the jurisdiction.
(b) Circuits which have contracted with an attorney or group of attorneys to provide representation on appeal for indigent defendants shall comply with these regulations within one year after the statewide roster becomes operational.
(2) Appellate assignments shall be made by each trial court only from its local list or to the State Appellate Defender Office except pursuant to ? 3(7) of these regulations or an order of an appellate court.
(a) Each trial bench shall review its local list and, within 56 days of an attorney's appearance on that list, shall notify the appellate assigned counsel administrator if it has actual knowledge that the attorney has, within the last three years, substantially violated the Minimum Standards for Indigent Criminal Appellate Defense Services or the Code of Professional Conduct. Each bench shall thereafter notify the administrator[Revised 7/90]of such violations by attorneys on its list within 56 days of learning that a violation has occurred.
(b) Upon receiving notice from a trial court that an attorney has substantially violated the Minimum Standards or the Code of Professional Conduct, the administrator shall promptly review the allegations and take appropriate action. Any determination that an attorney should be removed from the roster shall be made in compliance with ? 4(8) of these regulations.
(3) Appellate counsel shall be assigned within 14 days after a defendant submits a timely request.
(4) In each circuit and Recorder's Court, the chief judge shall determine whether appellate assigned counsel are to be selected by the chief judge or by the local designating authority.
(a) If the chief judge chooses to retain the discretion to select counsel, he or she shall personally exercise that discretion in all cases as described in ? 3(5).
(b) If the chief judge chooses to delegate the selection of counsel, the local designating authority shall, in all cases, rotate the local list as described in ? 3(6).
(5) The chief judge may exercise discretion in selecting counsel, subject to the following conditions:
(a) Pursuant to ? 2(2)(d), every third, fourth, or fifth assignment, or such other number of assignments as the Appellate Defender Commission may determine, shall be made to the State Appellate Defender Office. That office may also be assigned out of sequence pursuant to ? 3(13) or 3(15).
(b) All other assignments must be made to attorneys whose names appear on the trial court's local list.
(i) The attorney must be eligible for assignment to the particular case, pursuant to ? 4(2).
(ii) Where a Level I attorney has received an even-numbered amount of assignments and any other Level I attorney has less than half that number, an assignment shall be offered to each of the latter attorneys before any additional assignments are offered to the former.
(iii) Where a Level II or Level III attorney has received an even-numbered amount of assignments and any other Level II or Level III attorney has less than half that number, an assignment shall be offered to each of the eligible latter attorneys before any additional assignments are offered to the former.
(iv) If an order of appointment is issued and the attorney selected refuses the appointment for any reason not constituting a pass for cause as defined in ? 3(6)(c), the assignment shall be counted in the attorney's total.
(6) When directed to select counsel by the chief judge, the local designating authority shall select the attorney to be assigned in the following manner:
(a) The local designating authority shall first determine whether assignment is to be made to the State Appellate Defender Office, to a particular attorney on the local list pursuant to ? 3(6)(f), 3(12), or 3(13), or by rotation of the local list.
(i) Pursuant to ? 2(2)(d), every third, fourth, or fifth assignment, or such other number of assignments as the Appellate Defender Commission may determine, shall be made to the State Appellate Defender Office. That office may also be assigned out of sequence pursuant to ? 3(13) or 3(15).
(ii) An attorney whose name appears on the local list may be selected out of sequence pursuant to ? 3(6)(f), 3(12), or 3(13). That attorney's name shall then be rotated to the bottom of the list.
(iii) All other assignments shall be made by rotating the local list.
(b) Local lists shall be rotated in the following manner:
(i) The local designating authority shall identify the first attorney on the list who does not have to be passed for cause and shall obtain an order appointing that attorney from the appropriate trial judge.
(ii) The name of the attorney appointed shall be rotated to the bottom of the local list.
(iii) The names of any attorneys passed by the local designating authority for cause shall remain in place at the top of the list and shall be considered for the next available appointment.
(c) An attorney's name must be passed for cause in any of the following circumstances:
(i) the attorney is not qualified at the eligibility level appropriate to the offense as described in ? 4(2). A Level II or III attorney may be assigned a Level I case only if no Level I attorney is available.
(ii) The attorney represented the defendant at trial or plea and no exception for continued representation as specified in ? 3(12) is to be made.
(iii) Representation of the defendant would create a conflict of interest for the attorney. Conflicts of interest shall be deemed to exist between codefendants whether they were jointly or separately tried. Codefendants may, however, be represented by the same attorney if they express a preference for such representation under ? 3(6)(f) of these regulations,provided that there is no apparent conflict of interest.
(d) An attorney's name may be passed for cause if the defendant has been sentenced only to probation or incarceration in the county jail, and the attorney's office is located more than 100 miles from the trial court.
(e) If the attorney selected thereafter declines appointment for reasons which constitute a pass for cause, the attorney's name shall be reinstated at the top of the list. If the attorney selected declines the appointment for any other reason, his or her name shall remain at the point in the rotation order where it was placed when the order of appointment was issued.
(f) When the defendant expresses a preference for counsel whose name appears on the local list, and who is eligible and willing to accept the appointment, the local designating authority shall honor it.
(7) Where a complete review of the local list fails to produce the name of an attorney eligible and willing to accept appointment in a particular case, the local designating authority shall refer the case to the appellate assigned counsel administrator for selection of counsel to be assigned from the statewide roster.
(8) When an attorney has declined to accept three consecutive assignments for which the attorney was eligible under these regulations, the local designating authority may request the appellate assigned counsel administrator to remove the attorney's name from the jurisdiction's local list.
(9) The trial court shall maintain, on forms provided by the Appellate Assigned Counsel System, records which accurately reflect the basis on which all assignments have been made, whether by the chief judge or the local designating authority, and shall provide duplicates of those records to the Appellate Assigned Counsel System at regular intervals specified by the administrator.
(10) The local designating authority shall provide copies of each order appointing appellate counsel and written evidence of each defendant's request for counsel, including any waiver executed pursuant to ? 3(12).
(11) All assignments other than those made to the State Appellate Defender Office shall be considered personal to the individual attorney named in the order of appointment and shall not be attributed to a partnership or firm.
(12) When the defendant specifically requests the appointment of his or her trial attorney for purposes of appeal and the trial attorney is otherwise eligible and willing to accept the assignment, the defendant shall be advised by the trial judge of the potential consequences of continuous representation. If the defendant thereafter maintains a preference for appellate representation by trial counsel, the advice given and the defendant's waiver of the opportunity to receive new counsel on appeal shall appear on a form signed by the defendant. Appropriate forms shall be supplied to the trial courts by the Appellate Assigned Counsel System.
Where counsel represents the defendanton a currently pending appeal of another conviction, or represented the defendant on appeal of a prior conviction for the same offense, the designating authority may select that attorney out of sequence to conduct a subsequent appeal on the defendant's behalf if that attorney is otherwise eligible and willing to accept the additional appointment.
(14) Where the trial judge determines that a Level I or II case is sufficiently more complex than the average case of its type to warrant appointment of an attorney classified at a higher level than required by ? 4(2), the judge shall provide to the chief judge or the local designating authority a written statement of the level believed to be appropriate and the reasons for that determination. The local designating authority shall, and the chief judge in his or her discretion may, select counsel accordingly.
(15) When, in exceptional circumstances, the complexity of the case or the economic hardship the appeal would cause the county makes the selection of private assigned counsel impractical, the State Appellate Defender Officer may, after confirmation of that office's ability to accept the assignment, be selected for appointment out of sequence. When such an out-of-sequence assignment is made, it shall be treated as a substitute for the next in-sequence assignment the State Appellate Defender Office would have otherwise received.
[Statement by Boyle, J., appears at 432 Mich cxxvii.]
Mich. Admin. Ord. Administrative Order No. 1989-3