Frederick v. Presque Isle County Circuit Judge

Griffin, J.

(concurring in part and dissenting in part). Reluctantly, I concur in the majority’s result. Until the state moves to meet its own solemn commitment to provide statewide funding for major portions of our system of justice, the counties will be left to continue bearing this particular expense.

However, I write separately to emphasize several points. First, the majority’s holding should be qualified by §6(c) of the Appellate Defender Act, MCL 780.716(c); MSA 28.1114(106)(c), which requires the state to bear financial responsibility for at least twenty-five percent of the total criminal defense appellate cases of indigents pending in the Michigan appellate courts.

The entitlement of indigent criminal defendants to appointed appellate counsel was elevated to the level of a constitutional right in 1963 when the United States Supreme Court decided Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963). A few years later, in 1970, the State Appellate Defender Office was created by the Legislature. Sado is a state-financed entity that, by statute, is authorized and required (within limits) to represent indigent persons in appellate proceedings. In pertinent part, §6(c) of the Appellate Defender Act provides:_

*30The appellate defender shall:

(c) Accept only that number of assignments and maintain a caseload which will insure quality criminal defense appellate services consistent with the funds appropriated by the state. However, the number of cases assigned to the appellate defender office shall not be less than 25% of the total criminal defense appellate cases for indigents pending before the appellate courts of this state. [MCL 780.716(c); MSA 28.1114(106)(c). Emphasis added.]

Because inadequate funding has been provided by the Legislature, while the number of criminal prosecutions throughout the state has increased, sado has taken the position that it is unable to accept and handle twenty-five percent of the statewide appellate caseload. At the present time, sado is handling about seventeen percent of the total caseload.

Obviously, because the appointment of appellate counsel for indigent criminal defendants is constitutionally required, any cutback in funding for this purpose by the state has the effect of shifting, to, and increasing the burden on, the counties.

As I read § 6(c) of the act, it clearly directs sado to accept and handle at least twenty-five percent of the total criminal appeals for indigent defendants within the state. While the first sentence of that provision allows sado to adjust its caseload so as to "insure quality . . . services consistent with the funds appropriated,” the following sentence makes clear that this flexibility is available only with respect to that portion of the caseload that exceeds the twenty-five percent minimum requirement.1

*31Sado, a creature of the Legislature, has sought to justify the cutback in its caseload (and the compensation of appellate counsel) by pointing to the inadequacy of provided funds and arguing that the first sentence of § 6(c) somehow overrides the second. At the same time, the state, through sado, contends that a similar shortage of funds at the county level affords no excuse for any failure by the county to compensate appointed appellate counsel.

The bottom line is that this Court is being asked to address a legislative problem. The answer lies with the Legislature either to change the law or provide more funding. For more than a decade, the Legislature has promised county governments that full state funding for Michigan’s courts would be forthcoming. This commitment is evidenced in concrete terms in 1980 PA 438, MCL 600.9947; MSA 27A.9947. 1980 PA 438 was one of a package of six public acts which reorganized and provided for state financing of the Wayne County courts as a first step toward full state funding by 1988 of all state courts. MCL 600.9947; MSA 27A.9947 provides:

The legislature shall appropriate sufficient funds in order to fund:
(a) At least 20% of all court operational expenses in the state fiscal year beginning October 1, 1983.
*32(b) At least 40% of all court operational expenses in the state fiscal year beginning October 1, 1984.
(c) At least 60% of all court operational expenses in the state fiscal year beginning October 1, 1985.
(d) At least 80% of all court operational expenses in the state fiscal year beginning October 1, 1986.
(e) At least 100% of all court operational expenses in the state fiscal year beginning October 1, 1988.

Although the funding of Wayne County courts began in fiscal year 1982 and continues to this date (representing about twenty percent of the judicial budget), no steps have been taken by the Legislature to fulfill its commitment to the other counties in the state.

Through its inaction, the Legislature has allowed Michigan to fall behind other jurisdictions which have moved toward full state support of their court systems. The 1989 California Supreme Court Annual Report notes that "[w]ith two 1988 bills . . . California joined more than 30 other states that accept primary responsibility for funding their trial courts.” 1989 California Supreme Court Annual Report, ch 7, p 32. A research letter, dated March 27, 1987, from the National Center for State Courts summarizing the results of a survey seeking information on the percentage of funding supplied by each state for their respective trial courts, identifies the following jurisdictions as having substantially state-supported courts: Alaska, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Iowa, Kansas, Kentucky, Maine, Massachusetts, Nebraska, New Hampshire, New Mexico, New York, North Carolina, Oregon, Rhode Island, South Dakota, Vermont, Virginia, and West Virginia.

*33The existing uneven and insufficient allocation of county resources to the courts has made the efficient management and coordination of court services extremely difficult. Appointed counsel throughout the state are being paid disparate amounts or not being paid at all.

The Michigan Constitution calls for "one court of justice,” Const 1963, art 6, § 1. Inherent in this mandate is a unified judicial system, financed by the state and administered under the supervision of this Court. The irony of the present case is that all of the parties would prefer the same solution— state funding for appointed appellate counsel. Unfortunately, at least until a more appropriate case involving the state as a party is brought before this Court, this solution will have to await action by the Legislature.

Administrative Order No. 1989-3 entered March 15, 1989, by this Court requires judges of each circuit court and the Recorder’s Court of Detroit to comply with § 3 of the Michigan Appellate Assigned *31Counsel System Regulations as adopted by the Appellate Defender Commission. That section provides in part that of the assignments made of appellate counsel to represent indigent criminal defendants, "every third, fourth, or fifth assignment, or such other number of assignments as the Appellate Defender Commission may determine,” shall be made to sado. (Emphasis added.) Of course, the commission by regulation could not increase its own authority over that provided by statute. I read § 3 of the maacs regulations, including the emphasized language, as allowing the commission some flexibility in limiting the number of assignments to be made to sado; however, as § 6(c) of the act specifies, such flexibility is available only with respect to that portion of the caseload that exceeds twénty-five percent.