Order                                                         Michigan Supreme Court
                                                                    Lansing, Michigan

  November 30, 2010                                                         Marilyn Kelly,
                                                                                Chief Justice

  139345-7 (113)                                                     Michael F. Cavanagh
                                                                       Maura D. Corrigan
  CHRISTOPHER LEE DUNCAN, BILLY JOE                                   Robert P. Young, Jr.
                                                                      Stephen J. Markman
  BURR, JR., STEVEN CONNOR, ANTONIO                                   Diane M. Hathaway
  TAYLOR, JOSE DAVILA, JENNIFER                                      Alton Thomas Davis,
  O’SULLIVAN, CHRISTOPHER MANIES, and                                                Justices
  BRIAN SECREST,
              Plaintiffs-Appellees,
  v                                            SC: 139345
                                               COA: 278652
                                               Ingham CC: 07-000242-CZ
  STATE OF MICHIGAN and GOVERNOR OF
  MICHIGAN,
            Defendants-Appellants.

  _________________________________________/
  CHRISTOPHER LEE DUNCAN, BILLY JOE
  BURR, JR., STEVEN CONNOR, ANTONIO
  TAYLOR, JOSE DAVILA, JENNIFER
  O’SULLIVAN, CHRISTOPHER MANIES, and
  BRIAN SECREST,
              Plaintiffs-Appellees,
  v                                            SC: 139346
                                               COA: 278858
                                               Ingham CC: 07-000242-CZ
  STATE OF MICHIGAN and GOVERNOR OF
  MICHIGAN,
            Defendants-Appellants.

  _________________________________________/
  CHRISTOPHER LEE DUNCAN, BILLY JOE
  BURR, JR., STEVEN CONNOR, ANTONIO
  TAYLOR, JOSE DAVILA, JENNIFER
  O’SULLIVAN, CHRISTOPHER MANIES, and
  BRIAN SECREST,
              Plaintiffs-Appellees,
  v                                            SC: 139347
                                               COA: 278860
                                               Ingham CC: 07-000242-CZ
  STATE OF MICHIGAN and GOVERNOR OF
                                                                                              2

MICHIGAN,
              Defendants-Appellants.

_________________________________________/

       On order of the Court, the motion for reconsideration of this Court’s July 16, 2010
order is considered, and it is GRANTED. We VACATE our order dated July 16, 2010,
and we REINSTATE our order in this case dated April 30, 2010, because reconsideration
thereof was improperly granted.

       We do not retain jurisdiction.

       Dissenting statement of CORRIGAN, J., to follow.

       DAVIS, J. (concurring).

       I agree with Chief Justice KELLY’s dissent from the July 16, 2010, order, stating
that the prior motion for reconsideration should have been denied because it added
nothing new. To the extent the unanimous April 30, 2010, order was reconsidered
because of concerns that it could not be complied with, I have reviewed the record
thoroughly and I do not agree with those concerns. Furthermore, if those concerns
eventually prove warranted, the trial court should, and is in the best position to, make that
evaluation. The trial court has not yet had the opportunity to do so. As the April 30,
2010, order stated, this case is at its earliest stages and a decision on its substantive merits
is premature, but class certification should be reconsidered in light of Henry v Dow
Chemical Co, 484 Mich 483 (2009). The original, unanimous order of this Court was
correct, and no sufficient basis was presented for this Court to have reconsidered it.

       HATHAWAY, J., joins the statement of DAVIS, J.

       CORRIGAN, J., states as follows:

       I object to the release of the Court’s order without my dissenting statement and I
reserve the right to file one as soon as I can. The majority has decided to grant the
motion for reconsideration, and to reverse our previous order, without affording
disagreeing Justices sufficient time to adequately respond to this decision. Instead, the
majority has now decided to expedite the release of its order regardless of the fact that I
have worked in a timely fashion to prepare a dissenting statement, but have not yet
completed such a statement. This is contrary to our practice during the 11 years I have
served on this Court. The Court’s decision to suddenly expedite this case seems designed
to prevent the new Court after January 1, 2011 from considering a motion for
reconsideration.

       MARKMAN, J. (dissenting).
                                                                                          3


        I dissent from the order granting plaintiffs’ motion for reconsideration, vacating
this Court’s July 16, 2010 order, and reinstating this Court’s April 30, 2010 order. The
July 16 order vacated the April 30 order and held that “[t]he defendants are entitled to
summary disposition because, as the Court of Appeals dissenting opinion recognized, the
plaintiffs’ claims are not justiciable.” In a concurring statement, I explained that our
April 30 order was erroneous for two reasons:

              First, as defendants observe, this order vacated the Court of Appeals
      opinion without articulating any governing standards. Second, it is not
      premature to decide this case because the precise issue presented is whether
      plaintiffs have stated a claim on which relief can be granted, and this, as
      well as the threshold justiciability issues, can be determined on the face of
      the complaint. [Duncan v State of Michigan, 486 Mich 1071 (2010)
      (MARKMAN, J., concurring).]
In addition, I concluded that defendants are entitled to summary disposition for the
following reasons set forth in the Court of Appeals’ dissent:

             (1) The U.S. Supreme Court in Gideon v Wainwright, 372 US 335
      (1963), and Strickland v Washington, 466 US 668 (1984), “was concerned
      with results, not process. It did not presume to tell the states how to assure
      that indigent criminal defendants receive effective assistance of counsel.”
      284 Mich App 246, 357 (2009).
             (2) Plaintiffs’ claims would have “the judiciary override the
      Michigan system of local control and funding of legal services for indigent
      criminal defendants,” despite the absence here of any constitutional
      violation. Id. at 358.
             (3) Plaintiffs’ claims are not sufficient to create a presumption of
      either prejudice, or prejudice per se, that would warrant either declaratory
      or injunctive relief. Id. at 361.
              (4) Plaintiffs lack standing, and, therefore, their claims are not
      justiciable. Id. at 371.
              (5) Plaintiffs’ claims are not ripe for adjudication, and, therefore,
      their claims are not justiciable. Id. at 371, 376.
             (6) Plaintiffs’ claims are not justiciable and, therefore, the relief they
      seek should not be granted. Id. at 385.
             (7) In finding a justiciable controversy, the Court of Appeals erred in
      adopting a number of assumptions that are conjectural and hypothetical,
      including assumptions that plaintiffs and the class they purport to represent
                                                                                                               4

      will be convicted of the crimes with which they are charged, that such
      convictions will result from prejudice stemming from ineffective assistance
      of counsel, that such ineffective assistance will be attributable to the
      inaction of defendants, and that trial and appellate judges will be unable or
      unwilling to afford relief for such violations of the Sixth Amendment. Id.
      at 368-370.
              (8) There is no constitutional precedent that “guarantees an indigent
      defendant a particular attorney” or an “attorney of a particular level of
      skill” [as long as the attorney is not “so deficient as to cause prejudice”];
      that requires a “predetermined amount of outside resources be available to
      an attorney”; or that requires that there be a “meaningful relationship with
      counsel.” Id. at 370[, 384].
             (9) The Court of Appeals assertions that affording plaintiffs
      injunctive relief “could potentially entail a cessation of criminal
      prosecutions against indigent defendants,” id. at 273, and “that nothing in
      this opinion should be read as foreclosing entry of an order granting the
      type of relief so vigorously challenged by defendants,” id. at 281,
      accurately describe the potential consequences of its opinion, which
      consequences would constitute an altogether unwarranted, improper, and
      excessive response to plaintiffs’ claims. Id. at 380-385.
             (10) The Court of Appeals has “issued an open invitation to the trial
      court to assume ongoing operational control over the systems for providing
      defense counsel to indigent criminal defendants in Berrien, Genesee and
      Muskegon counties.” And with that invitation comes a “blank check” on
      the part of the judiciary to “force sufficient state level legislative
      appropriations and executive branch acquiescence” in assuming similar
      control over the systems in every county in this state, while “nullifying the
      provisions” of the criminal defense act and “superseding the authority of
      the Supreme Court and the State Court Administrator.” Id. at 383-384.
      [Duncan, 486 Mich at 1072 (MARKMAN, J., concurring).]
Because plaintiffs have not presented anything in the present motion for reconsideration
that causes me to believe that the above reasons do not continue to justify our decision to
reverse the Court of Appeals, I would deny plaintiffs’ motion for reconsideration.

      CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         November 30, 2010                   _________________________________________
        1124                                                                 Clerk
