Frederick v. Presque Isle County Circuit Judge

Boyle, J.

I concur in Justice Mallett’s result. Mr. Frederick was appointed to serve as "criminal appellate defense counsel ... by the trial court from the roster provided by the commission . . . .” MCL 780.712(6); MSA 28.1114(102)(6). The trial court was authorized to certify a fee to the funding unit and Mr. Frederick is therefore "entitled to receive from the county treasurer . . . reasonable compensation for the services performed.” MCL 775.16; MSA 28.1253.

However, this conclusion is only the beginning of the necessary inquiry. The controversy involves the familiar struggle between local and state government for dwindling resources and the Legislature’s contemplated but unfulfilled intention to finance the court system on a statewide basis, MCL 600.101 et seq.; MSA 27A.101 et seq. Moreover, the backdrop of the case cannot be understood without acknowledging this Court’s administrative orders involving the Appellate Defender Commission, AO 1981-7 and 1985-3, and its ultimate directive to trial courts to appoint appellate counsel pursuant to the regulations adopted by the commission, AO 1989-3.

I

The constitutional imprimatur for authority in the trial court to appoint appellate counsel has been long established. The Michigan Constitution of 1908 guaranteed a defendant the assistance of counsel for defense, "and in courts of record, when *17the trial court shall so order, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.” Const 1908, art 2, § 19.

The Michigan Constitution of 1963, art 1, §20, provided an appeal as of right. As originally adopted, it carried forward nearly identical language to that of Const 1908, art 2, § 19, that is, "and in courts of record, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.”1

The constitution thus confers the responsibility for the appointment of appellate counsel to the trial courts.

Article 6, § 10 also provides:

The jurisdiction of the court of appeals shall be provided by law and the practice and procedure therein shall be prescribed by rules of the supreme court.

Following adoption of the constitution, the Legislature, in the Revised Judicature Act, defined the jurisdiction of the Court of Appeals:

All final judgments from the circuit court, court of claims, and recorder’s court .... [MCL 600.308(1)(a); MSA 27A.308(1)(a).]

1961 PA 2362 authorized the Michigan Supreme Court to promulgate general rules governing practice and procedure in the Supreme Court and all other courts of record. The provision did not refer to rules regarding the appointment of counsel. Between 1963 and 1980, MCL 775.16; MSA *1828.1253 was reenacted without change. 1980 PA 506 amended MCL 775.16; MSA 28.1253:

Upon proper showing, the chief judge shall appoint or direct the magistrate to appoint an attorney to conduct the accused’s examination and to conduct the accused’s defense. The attorney appointed by the court shall be entitled to receive from the county treasurer, on the certificate of the chief judge that the services have been rendered, the amount which the chief judge considers to be reasonable compensation for the services performed.

MCL 775.17; MSA 28.1254, referring to an attorney’s right to receive compensation if he follows the case into the Michigan Supreme Court, and MCL 775.18; MSA 28.1255, providing that "[o]nly one attorney in any one case shall receive the compensation” contemplated above, have not been amended since the 1963 Constitution. All appear in the Penal Code.

In 1978, the Appellate Defender Commission was created. It was charged with the responsibility for development of a system of indigent appellate services which was to include "locally appointed private counsel,” MCL 780.712(4); MSA 28.1114(102)(4), and the creation of a statewide roster of attorneys eligible for and willing to accept appointment by an appropriate court. The act further provides, "The appointment of criminal appellate defense services for indigents shall be made by the trial court from the roster provided by the commission or shall be referred to the office of the state appellate defender.” MCL 780.712(6); MSA 28.1114(102)(6).

Notably, although the Legislature authorized the commission to develop standards for the performance of services to the indigent, the act con*19tains no authorization for the development of regulations. Moreover, the Legislature did not purport to limit the authority of the trial court to appoint counsel except to provide that counsel shall be roster certified.

Two other statutes must be noted. The same act that amended MCL 775.16; MSA 28.1253, titled in part "[a]n act ... to provide for procedure relating to new trials and appeals in criminal . . . cases,” amended MCL 770.3(1)(a); MSA 28.1100(1)(a) to provide a right to appeal from final judgment or trial order:

In a felony or misdemeanor case tried in the circuit court, recorder’s court of the city of Detroit, or traffic and ordinance division of the recorder’s court of the city of Detroit, there shall be a right of appeal to the court of appeals, within 60 days after the entry of judgment or after the entry of an order appointing appellate counsel for an indigent defendant pursuant to supreme court rule, or within 60 days after the entry of an order denying a motion for new trial where the motion is timely filed as prescribed in section 2(1) of this chapter.
[1980 PA 506, ch X, § 3(1)(a).]

Finally, § 9947 of the court reorganization act, also enacted in 1980, 1980 PA 438, declared that "[t]he legislature shall appropriate sufficient funds in order to fund . . . [a]t least 100%” of all court operational expenses beginning October 1, 1988. MCL 600.9947(1)(e); MSA 27A.9947(1)(e).

The applicable court rule is MCR 6.425(F)(1)(a), which, like its predecessor, GCR 1963, 785.11(2), simply provides that "[i]f the defendant is indigent, the court must promptly enter an order appointing a lawyer.”

Noting that there is no constitutional right to payment of appointed counsel, the respondent *20judge submits that there is no statutory authority compelling compensation but, rather, that MCL 775.16 et seq.; MSA 28.1253 et seq., links the right to compensation to "informed permission from the trial court,” or that appellate counsel be the same attorney that was appointed as trial counsel. MCL 775.17, 775.18; MSA 28.1254, 28.1255. The respondent thus contends that he is without authority to impose a charge on the county either because he has not made a finding that the appeal is meritorious, or because MCL 775.17, 775.18; MSA 28.1254, 28.1255 require the appointment of trial counsel and limit compensation to one attorney.

The plaintiff and amicus curiae Michigan Appellate Assigned Counsel System submit that the statutes appearing in the Code of Criminal Procedure, MCL 775.16-775.18; MSA 28.1253-28.1255, are not inconsistent with the Appellate Defender Act, MCL 780.711 et seq.; MSA 28.1114(101) et seq.

To the extent the early statutes provide for county funding of private attorneys appointed by trial courts, the Act is not inconsistent. It preserves a system in which private attorneys are locally áppointed; it is silent as to the payment of private attorneys’ fees; it provides state-funding only of the state commission and state agency it creates.
... To the extent that 1978 PA 620 requires a new method of selecting appellate counsel, the later act controls [but] [t]here is nothing in the language of the Appellate Defender Act that remotely suggests a legislative intent to change existing funding methods. [Emphasis added.]

Both positions prove too much, and, perhaps ' understandably in view of the administrative activity that is the backdrop of this lawsuit, both positions confront too little. The argument of re*21spondent is overstated to the extent that it suggests that the phrase "when the trial court so orders,” Const 1963, art 1, §20 must be read to limit the trial court’s exercise of independent discretion in the appointment of appellate counsel. The right to appeal and the authority to appoint counsel need not be read on the one hand as absolute and on the other as qualified, as respondent suggests. They both can more reasonably be read as absolute. In other words, the provisions of the constitution and statutes can be harmonized by construing them to the extent possible as guaranteeing both that an appeal would be available and that the locally elected trial judiciary would provide counsel. Indeed, if we were to read MCL 775.16 et seq.; MSA 28.1253 et seq., to require an independent determination by the trial court that the appeal of right was meritorious, it would run afoul of Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963). And if we were to read MCL 775.17, 775.18; MSA 28.1254, 28.1255 to preclude the trial judge from appointing anyone but trial counsel, it might conflict with the principle that the trial court has inherent authority to compel an appropriation necessary to the performance of the statutory function mandated by MCL 780.712; MSA 28.1114(102). See Judge of the Second Dist Court v Hillsdale Co, 423 Mich 705; 378 NW2d 744 (1985). I think it more reasonable to conclude that the limitation in MCL 775.16 et seq.; MSA 28.1253 et seq., has been repealed by implication, and the trial court’s constitutional authority has been affirmed by the directive that counsel shall be appointed "by the trial court.” MCL 780.712(6); MSA 28.1114(102)(6).

The amicus curiae position is overstated in suggesting that MCL 780.712; MSA 28.1114(102) requires "a new method of selecting appellate coun*22sel.” In fact, the act does not facially purport to restrict the trial court’s authority to appoint appellate counsel. Rather, the statute appears to carry forward the intent of the constitution providing that the appointment of counsel "shall be made by the trial court from the roster provided by the commission . . . .” MCL 780.712(6); MSA 28.1114(102)(6). The Legislature did not prescribe which roster attorneys should be appointed. Indeed, if one reads the constitutional provision consistently with MCL 780.712; MSA 28.1114(102), as we are required to do, one obvious conclusion is that the trial court is not obligated to use a different method of appointment, but, rather, is obligated only to appoint not less than twenty-five percent of cases to the state appellate defender.3 As to the remainder, no method of appointment is directed — only that the persons appointed are roster-certified attorneys.

II

It may be safely concluded that the administrative order of this Court, AO 1989-3, does not authorize the trial court to impose a charge on the county pursuant to § 3 of the Appellate Defender Commission regulations. The regulations have never been adopted by this Court and therefore derive no binding force from our orders. Thus, while trial courts are bound to obey our order, presumably under pain of contempt, In re Huff, *23352 Mich 402; 91 NW2d 613 (1958), it is the order that the trial court obeys, not the regulations.

The question regarding whether the trial court’s order is grounded in § 3 of the regulations or is authorized by MCL 780.712; MSA 28.1114(102) and the constitution might, at first blush, be seen as a distinction without a difference. Stated plainly, if the trial judge must obey AO 1989-3, and an order of appointment authorizes a charge to the county under the constitution and statutory provisions, what difference does it make? The answer is, "Who pays?” an inquiry that turns on the critical question regarding whether the Legislature intended to assume funding responsibility in enacting MCL 780.712; MSA 28.1114(102), and the subsidiary question regarding whether the commission’s purported authority to adopt regulations altering the trial court’s authority is evidence of that intent.4

If alteration of the assignment system was in fact the objective of the Legislature, it may follow that the Legislature intended to fund the system. The commission comments to AO 1981-7 state that the procedures outlined encompass "a number of significant policy decisions. Foremost is the legislature’s rejection of the ad hoc system of appointing counsel.” Mich Ct R, p A 1-11. The commission concluded that the words "appointment ... by the trial court,” contained in MCL 780.712(6); MSA 28.1114(102)(6), did not contemplate selection by the trial judge. Mich Ct R, p A 1-12. The commission therefore proposed a system in which selection of appellate attorneys from the roster would be made by nonjudicial personnel according to standardized procedures and limited exceptions *24to strict rotation "in order to avoid reintroducing the kind of discretionary decision-making [by trial courts] rotation is meant to eliminate.” Id.

The claim that the Legislature intended to alter the system of appointment of assigned counsel may derive additional support from the approach taken by the Court in the administrative orders. The carefully crafted language of AO 1981-7 declined adoption of the regulations, and observed:

[T]he operation of the system and enforcement of the standards pursuant to the system requires that the Legislature appropriate funds necessary to implement the system.

At the conclusion of the order, as entered, the Court used block capitals for emphasis and stated:

We repeat here that the implementation of THE REGULATIONS GOVERNING THE SYSTEM FOR APPOINTMENT . . . REQUIRES LEGISLATIVE APPROPRIATION OF FUNDS SUFFICIENT TO OPERATE THE SYSTEM.

On February 8, 1985, by AO 1985-3, the Court again declined to adopt the regulations, affirmed AO 1982-2, and also stated:

On the question of the regulations governing a system for appointment of appellate counsel for indigents in criminal cases, the Court is persuaded that 1978 PA 620 confides the development of such a system to the Appellate Defender Commission and not to this Court.

These actions appear to evidence the view that a *25new system was being created that the Legislature was obligated to fund.5

These observations highlight the central and as yet unresolved questions from which the issue in this case arises, that is, did the Legislature intend to authorize alteration of the system, and do the commission’s regulations therefore have substantive force? Stated otherwise, critical issues not reached in this case are whether, as the commission opines in its commentary to AO 1981-7, the Legislature intended to eliminate trial judge "selection” of appellate counsel for indigents, and whether the Legislature intended to eliminate contract representation by an attorney or group of attorneys who are roster certified and to limit the appointment of the State Appellate Defender Office to twenty-five percent of appointments for indigents.

Assuming that legislative intent was to be found, among the questions that would arise are: *26whether the Legislature had the constitutional authority to exercise such authority under Const 1963, art 3, § 2; whether, assuming such authority would not be the assumption of judicial authority, there is a conflict between MCL 780.712; MSA 28.1114(102) and the constitutional directive that appointment of counsel shall be "when the trial court so orders,” Const 1963, art 1, §20; whether the regulations are a proper delegation of legislative authority if such authority is found. Presuming answers to all of these questions that permit the conclusion that the state intended the system that is in effect, the difficult question would be faced regarding whether the system violates the strictures of Const 1963, art 9, § 29, prohibiting the Legislature from requiring new services or activities of local government or increasing the level of existing activities or services without appropriating funds to the local government for the necessary increased costs, and if so, what the appropriate remedy should be.6

In short, at the heart of this lawsuit are yet-to-be answered questions of law which while deemed moot "in light of Administrative Order 1989-3,”7 have in reality not been mooted. While we have today answered the question regarding whether Mr. Frederick is to receive the compensation which is his due, our assertion of the unreviewable authority of superintending control in AO 1989-3 *27has left significant justiciable questions unanswered.

III

The Court generally approaches a given administrative action with concern for the potential for impairment of related justiciable issues. In this case, for example, amicus curiae Michigan Appellate Assigned Counsel System has argued that the appellate defender act "has been superseded” on the method of selecting counsel "by the Supreme Court’s order.” The Court cannot rebut the legitimacy of the observation that AO 1989-3 has effectively superseded the statutes if it allows the order to effectively close the courthouse doors. Since the trial judiciary cannot create a legal controversy without risking contempt or disciplinary sanction, and the counties must pay if the trial court’s order is authorized under law,8 the administrative order may have precluded any claims to a forum for the resolution of the issues.

We need not accept the proposition that the entry of AO 1989-3 places the Court in the position of being unable to decide significant legal questions in the appropriate legal forum. Nor need we decide that the only way to open the courthouse door for a determination of the questions is the immediate recision of AO 1989-3. Immediate recision of the order to permit a test of the legal issues could have a chaotic effect on the appellate rights of indigent defendants, rights that, with all due respect to trial judges, funding units, and the *28commission, are more important than "who pays,” "who controls,” or what the system for assigned counsel ought ideally to be.

On the other hand, it is plainly unacceptable that the Court should permit AO 1989-3 to foreclose trial judges from access to the institution they serve, and that funding units must pay for the system that operates pursuant to regulations that limit their options but have not been found to be lawful.

Rather than choose between these harsh alternatives, we would maintain the status quo and provide a forum for the resolution of the issues by directing the addition of a party, not here present, who can raise the issues that must be ultimately addressed. MCR 2.207. We would grant interim relief to plaintiff and, while retaining jurisdiction, remand this matter for joinder of the State of Michigan as party defendant and for further proceedings pursuant to this opinion before a judge to be appointed by the State Court Administrator.

In summary, while we agree on this record with the basic proposition that the trial court had the authority to appoint the plaintiff and that he is therefore entitled to reasonable compensation, this conclusion does not resolve the ultimate legal question regarding whether the regulations have the force of law and therefore require payment by the local funding unit. For purposes of this case, at this time it may only be said that it is not our order directing compliance with § 3 of the regulations that entitles plaintiff to payment, it is the Michigan Constitution and MCL 780.712; MSA 28.1114(102) that repose this authority in the trial court.9

*29Riley, J., concurred with Boyle, J.

The language added by amendment ratified August 8, 1972, effective September 23, substituted "and as provided by law” for "and in courts of record.” No evidence exists that it was intended to limit trial court authority.

Amended by 1974 PA 297, MCL 600.223: MSA 27A.223.

It bears observing that if the State Appellate Defender Office is required to accept one hundred percent of all appellate appointments, its ability to comply with MCL 780.716(c); MSA 28.1114(106)(c) directing it to "[a]ccept only that number of assignments and maintain a caseload which will insure quality criminal defense appellate services” would be impaired. It may follow that if the Legislature has given the State Appellate Defender Office the authority to declare a moratorium on its workload, it has the authority to selectively limit its cases.

Another answer is, "Who has control?” If the Legislature did not intend to assume funding responsibility and the local control unit must assume the charge, it should logically follow that the control unit determines the system for appointment subject only to lawful limits on that authority.

In AO 1989-3, ordering circuit courts and the Detroit Recorder’s Court to comply with §3 of the Appellate Defender Commission regulations, this Court, while again declining to adopt the regulations pursuant to "our power of general superintending control . . . under Const 1963, art 6, § 4,” ordered appointments to be made as follows:

[E]very third, fourth, or fifth assignment, or such other number of assignments as the Appellate Defender Commission may determine ... to the State Appellate Defender Office.
All other assignments shall be made by rotating the local list.
Circuits which have contracted with an attorney or group of attorneys to provide representation on appeal for indigent defendants shall comply with these regulations ....

Section 3 thus incorporates a revised version of the rotational scheme of appointment, directs elimination of provision of appellate services to counties by contract with an attorney or group of attorneys, and authorizes the commission to determine the number of assignments made to the State Appellate Defender Office.

This Court has not had occasion to say what the appropriate remedy may be when the Legislature requires a new activity or service of local government or an increase in the level of such activity or service, without appropriating funds to pay the unit of local government for any necessary increased costs, although this Court suggested in dicta in Livingston Co v Dep’t of Management & Budget, 430 Mich 635, 652; 425 NW2d 65 (1988), that "the state presumably would be required to reimburse for the cost of that which is required.”

In re State Appellate Defender Office and State Appellate Defender Comm v 26th Circuit Judges, Docket No. 85216 (1989), Court of Appeals Docket No. 113884 (1988).

Presumably, the county could enter a contract for provision of the services by a roster-certified attorney or attorneys. If the trial court declined to appoint the attorney or attorneys because AO 1989-3 requires rotational assignment and bans contract defenders, declaratory relief might be sought by the funding unit or the contract attorney or attorneys. MCR 2.605.

Assuming the Court were to determine that the authority of superintending control authorized limitation of that authority con-. *29ferred under Const 1963, art 1, § 20, we would have to determine whether and in what form some variation of the regulations should be adopted by this Court; a determination that should at minimum involve an inquiry regarding whether the increased costs which may be anticipated under a system which is not subject to the inherent constraints of budget considerations must be assumed by the local funding unit of the judiciary because fair and effective representation of indigents cannot otherwise be provided. The State Court Administrator indicated that, in 1988, $1,454,404 was expended for appellate counsel. In 1989, the figure rose to $1,673,267.