Order                                                         Michigan Supreme Court
                                                                    Lansing, Michigan

  December 22, 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.

_________________________________________/

      This Court’s order of November 30, 2010, will be published with the following
statements attached.

         KELLY, C.J. (concurring).

       I concur in the order granting plaintiffs’ motion for reconsideration and reinstating
our order of April 30, 2010. I write separately to avoid the confusion that I believe is
likely given the history of this case and the statements of the dissenting justices.

       The dissenters have yet to raise a single argument of which the Court was unaware
when it originally decided this case eight months ago. Indeed, Justice MARKMAN’s
dissenting statement consists almost entirely of a series of quotations from the Court of
Appeals dissenting opinion. He also claims that it is not premature to make a final
decision on this case because the issues involved are fully laid out on the face of the
complaint. We rejected that precise argument in our April order.

       Nor are Justices CORRIGAN, YOUNG and MARKMAN correct that our July 16, 2010
order granting reconsideration was warranted because our April order failed to articulate
a governing standard for the trial court. Our April order affirmed only the result reached
by the Court of Appeals. Such orders are hardly earth-shattering occurrences;1 hence, all
Justices were clearly aware at the time our April order entered that we were not
articulating a governing standard for the trial court.2 Yet no one on the Court stated a
need for one. Nothing happened between April and July that gave rise to a need for the
Court to articulate a governing standard.

       Moreover, the thrust of the dissenters’ position is that our failure to articulate a
standard somehow makes summary disposition for defendants a more suitable outcome.
In my view, such a conclusion is tantamount to throwing up one’s hands in futility in the
face of a thorny legal question. If the dissenters’ concerns are genuine, why would not
the proper remedy be to grant reconsideration and issue an opinion or order setting such a
standard?


1
 See, e.g., Andres v Brown, 482 Mich 985 (2008) (affirming the result reached by the
Court of Appeals for different reasons); Citizens Protecting Michigan’s Constitution v
Secretary of State, 482 Mich 960 (2008) (affirming the result only of the Court of
Appeals judgment without further explanation).
2
    See Duncan v State of Michigan, 486 Mich 1071, 1074 (2010) (KELLY, C.J., dissenting).
                                                                                         3

       Finally, Justice CORRIGAN states that issuing our November 30, 2010 order
without her dissenting statement constitutes an “unprecedented” act.3 She is incorrect.
Such action has in fact occurred in the past.4 The same action was warranted in this
unique case because the case (1) involves issues important to this State’s jurisprudence,
(2) is three years old despite the fact that discovery has not even begun, and (3) has
languished in this Court for almost a year (two motions for reconsideration have been
brought).

       In sum, our April order was correct then and it is correct now. Therefore, I concur
in the order granting plaintiffs’ motion for reconsideration and reinstating our April
order.

         CORRIGAN, J. (dissenting).

       I join Justice MARKMAN’s dissenting statement in full. I would deny plaintiffs’
motion for reconsideration of the July 16, 2010 order. I write separately to point out the
procedural history that has brought us to this juncture and to further make clear the
defects in the initial April 30, 2010 order that necessitated the grant of defendants’
motion for reconsideration.

       In this case, indigent criminal defendants in three Michigan counties brought
claims alleging that they, as well as future indigent defendants, were being denied their
constitutional rights to counsel and the effective assistance of counsel. After the trial
court denied defendants’ motion for summary disposition and granted class certification,
defendants sought leave to appeal in the Court of Appeals. The Court of Appeals granted
leave, and on June 11, 2009, it affirmed the trial court’s denial of defendants’ motion for
summary disposition and the grant of class certification in a 2-1 decision. Duncan v State
of Michigan, 284 Mich App 246 (2009). We subsequently granted leave. Duncan v State
of Michigan, 485 Mich 1003 (2009). After hearing oral arguments in April 2010, we
issued an order on April 30, 2010, vacating the trial court’s grant of class certification
and remanding for consideration of class certification in light of Henry v Dow Chemical
Co, 484 Mich 483 (2009). Duncan v State of Michigan, 486 Mich 906 (2010). In regard
to defendants’ motion for summary disposition, we affirmed only the result of the Court
of Appeals majority for different reasons based on the rationale that it was premature to
make a decision on the substantive issues based solely on plaintiffs’ pleadings. Id.

3
    Post at ___.
4
  See, e.g., People v Limmer, 461 Mich 974 (2000). In Limmer, we issued an order on
March 8, 2000 denying leave to appeal but stating that then-Chief Justice WEAVER and
Justices CORRIGAN and MARKMAN would grant leave to appeal and dissenting statements
would follow. The order was amended April 18, 2000 to add a dissenting statement by
Justice CORRIGAN, joined by then-Chief Justice WEAVER and Justice MARKMAN.
                                                                                          4

Defendants then filed a motion for reconsideration, which we granted by a vote of 4-3 on
July 16, 2010. Duncan v State of Michigan, 486 Mich 1071 (2010). On August 6, 2010,
plaintiffs filed a motion for reconsideration of the July 16, 2010 order, which the majority
now grants.5 Despite my objection,6 the majority issued the order granting plaintiffs’
motion for reconsideration on November 30, 2010, without my dissent in an act virtually
unprecedented in the 11 years I have served on this Court.7 8
5
  In the interim between plaintiffs’ motion and the order issued here, Justice WEAVER,
who voted in favor of defendants’ prior motion for reconsideration, resigned, and Justice
DAVIS, who now votes in favor of plaintiffs’ motion for reconsideration, was appointed
to take her seat on the Court.
6
    My objection included with the November 30, 2010 order stated:
         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.
7
  I am aware of only one other instance in which this course of action was taken in regard
to dissenting statements during my time on this Court. See People v Limmer, 461 Mich
974 (2000). The circumstances of Limmer, however, are far different from the
circumstances here. In that case, the dissenting Justices did not object but concurred in
the delayed release due to the evident emergency based on the application for leave to
appeal occurring in the midst of trial. Further, the order denying leave with dissenting
statements to follow was issued within three days of the prosecution filing its emergency
application. Similar circumstances are clearly not present here. The initial order denying
leave in Limmer stated:

                On order of the Court, the application for leave to appeal from the
         March 6, 2000 decision of the Court of Appeals is considered, and it is
         DENIED, because we are not persuaded that the question presented should
         be reviewed by this Court. The motion to waive production of transcript is
         thereby moot and is DENIED. The stay order entered March 7, 2000 is
         VACATED.

                WEAVER, C.J., and CORRIGAN and MARKMAN, JJ., would grant
         leave to appeal and dissenting statements will follow. [Id.]
                                                                                        5



The subsequent amended order in Limmer stated:

            In an order dated March 8, 2000, this Court denied leave to appeal.
      Several members of the Court indicated that they would grant leave to
      appeal and that dissenting statements would follow. The dissenting
      statement, as joined in by two members of the Court, reads as follows:

             CORRIGAN, J. Under the current governing standards in Michigan,
      the prosecution's application cannot succeed. Nonetheless, I would grant
      leave to appeal to revisit this Court's conclusion in People v Nix, 453 Mich
      619 (1996), that a directed verdict granted on the basis of an error of law is
      nevertheless an acquittal for purposes of double jeopardy.

              The Double Jeopardy Clause of the Fifth Amendment of the United
      States Constitution bars further prosecution after a judgment of acquittal,
      whether based on a jury verdict of not guilty or a ruling by the court that
      insufficient evidence existed to convict. United States v Scott, 437 US 82,
      91, (1978); Sanabria v United States, 437 US 54, 68-69, 98 (1978); United
      States v Martin Linen Supply Co, 430 US 564, 570 (1977); Fong Foo v
      United States, 369 US 141, 143 (1962). That the trial court characterized
      its ruling as a directed verdict does not control its classification. Scott,
      supra at 96. “Rather, a defendant is acquitted only when ‘the ruling of the
      judge, whatever its label, actually represents a resolution [in the defendant's
      favor], correct or not, of some or all of the factual elements of the offense
      charged . . . .’” Id. at 97, quoting Martin Linen, supra at 571.

             In this case, as in Nix, supra, the trial court apparently granted a
      directed verdict on the basis of an erroneous legal ruling that defendant
      could not be convicted because he owed no legal duty to the victim. Nix
      improperly characterized such a ruling as a determination that insufficient
      evidence existed to support a conviction. Unlike Smalis v Pennsylvania,
      476 US 140, 144, n 7 (1986), the trial court's error of law in this case did
      not involve an actual element of the crime. Rather, the trial court
      erroneously determined that the offense included an additional element-a
      duty. Because the trial court’s legal determination did not involve an
      essential element of the offense charged, it did not necessarily constitute an
      acquittal for double jeopardy purposes. United States v Maker, 751 F2d
      614, 622 (CA3, 1984). For these reasons, I would grant the prosecution's
      application for leave to appeal.

           WEAVER, C.J., and MARKMAN, J., concur with the statement of
      CORRIGAN, J. [Id. (Footnote omitted).]
                                                                                            6


       I believe, as Justice MARKMAN sets forth, that we properly granted defendant’s
motion for reconsideration of the initial order and that defendants are entitled to summary
disposition. I write to emphasize that the majority’s decision to reinstate the initial order
does not rectify our failure to articulate any governing standards in the initial order.
Rather, the majority revives this palpable error, placing the trial court in the same
quandary of operating without any governing standards in deciding plaintiffs’ claims.9

       The initial order contained an internal inconsistency because it vacated the Court
of Appeals opinion without offering any alternative analysis. All future actions in this
case depend on an articulation of the standard for pre-conviction Sixth Amendment
claims, which the initial order did not provide. Specifically, the governing standard for
what constitutes effective assistance of counsel in this context is necessary for this case to
properly proceed. In fact, the trial court conceded the lack of clarity in regard to whether
the Strickland v Washington, 466 US 668 (1984), standard applies to plaintiffs’ pre-
conviction claims of inadequate representation. Transcript of Motions for Summary
Disposition and Class Certification, May 15, 2007, p 34. Further, the order the majority
now reinstates has recently been cited as illustrating the “state of confusion created by the
lack of a clear standard to which courts can look when adjudicating these types of
systemic reform cases.” Chiang, Indigent Defense Invigorated: A Uniform Standard for
Adjudicating Pre-conviction Sixth Amendment Claims, 19 Temp Pol & Civ Rts L R 443,
461 (2010).10 Additionally, similar class action cases have generated conflicting opinions
8
  Chief Justice KELLY’S rationalizations for expediting the release of this order without
my dissent are unpersuasive. The existence of jurisprudentially significant issues in this
case does not distinguish it from the bulk of cases we decide to hear. Further, the age of
this case and the time this case has been before this Court are not adequate reasons for
treating this case differently when these characteristics are present in many of the cases
we consider. In addition, these reasons simply do not explain why the majority felt
compelled to suddenly expedite the release of the order when I acted in a timely fashion
to prepare a dissenting statement.
9
  The cases cited by Chief Justice KELLY as instances where we affirmed only the result
of the Court of Appeals do not justify the failure to articulate a governing standard here.
Contrary to the order here, the orders in Andres v Brown, 482 Mich 985 (2008) and
Citizens Protecting Michigan’s Constitution v Secretary of State, 482 Mich 960 (2008),
did not result in the continuation of those cases. Rather, in Andres, we affirmed the grant
of summary disposition, while in Citizens Protecting Michigan’s Constitution, we
affirmed the rejection of an initiative petition.
10
     The article discusses the order the majority now reinstates as follows:

                 Meanwhile, the Michigan Supreme Court similarly permitted
         plaintiffs’ suit to proceed but issued only a two paragraph order noting that
         it was affirming “the result only of the Court of Appeals majority for
                                                                                          7

on the appropriate constitutional standards. See Hurrell-Harring v State of New York, 15
NY3d 8 (2010) (reversing the holding of the Appellate Division that the claims of a class
of indigent defendants were not justiciable and reinstating the plaintiffs’ complaint
because it “contained[ed] numerous plain allegations that in specific cases counsel simply
was not provided at critical stages of the proceedings.”); Platt v Indiana, 664 NE2d 357,
363 (Ind App, 1996) (affirming the dismissal of the claims of a class of indigent
defendants challenging a county indigent defense system, concluding that the claims were
not reviewable because “a violation of a Sixth Amendment right will arise only after a
defendant has shown he was prejudiced by an unfair trial.”); Kennedy v Carlson, 544
NW2d 1, 8 (Minn, 1996) (reversing the decision of the district court granting the plaintiff
public defender summary disposition, concluding that the plaintiff had failed to show an
injury-in-fact because his claims of constitutional violations were “too speculative and
hypothetical” where there was no evidence of inadequate assistance in any particular case
or that the plaintiff “faced professional liability as a result of his office’s substandard
services.”); Luckey v Harris, 896 F2d 479, 480 (CA 11, 1989) (Edmonson, J., dissenting)
(criticizing the panel’s holding that “deficiencies that do not meet the ‘ineffectiveness’
standard may nonetheless violate a defendant’s rights under the sixth amendment” as
“inconsistent with the language and rationale of both Strickland v Washington, 466 US
668, 687; 104 S Ct 2052, 2064; 80 L Ed 2d 674 (1984), and United States v Cronic, 466
US 648, 659; 104 S Ct 2039, 2047; 80 L Ed 2d 657 (1984).”).

        Yet the majority permits this case to continue without providing any guidance to
the trial court and the litigants concerning the legal standards that will govern discovery
or subsequent motions. In particular, the class certification question is inextricably
intertwined with the issue of what is the proper standard for evaluating systemic pre-
conviction claims of ineffective assistance of counsel. Determining how many have or
will suffer actual injury hinges entirely on what constitutes this type of injury; what type
of proofs are necessary to show harm; and whether the putative plaintiffs are adequate
class representatives. Thus, without a standard to form the basis for the class action
analysis under Henry, it appears the trial court cannot properly make any determination
under Henry. Moreover, plaintiffs’ motion for reconsideration has not presented

       different reasons. This case is at its earliest stages and, based solely on the
       plaintiffs’ pleadings in this case, it is premature to make a decision on the
       substantive issues.” Many of the remaining cases filed since Platt and prior
       to Hurrell-Harring and Duncan have proven at least partially successful,
       resulting either in judicially mandated reform or in settlement agreements
       designed to reform the public defense system in question. Unfortunately,
       as evidenced by the murky opinions issued in Hurrell-Harring and Duncan
       many of the positive decisions lack clarity as to the standard to which
       plaintiffs are held, decreasing their precedential value for successive
       litigants and courts. [Chiang, supra, 19 Temp Pol & Civ Rts L R at 462
       (Internal footnote omitted).]
                                                                                        8

anything that changes my view of these problems with the initial order. The majority
simply brushes these problems aside by reinstating the initial order. I would deny
plaintiffs’ motion for reconsideration.

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

      MARKMAN, J. (dissenting).

        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.
                                                                                    9

        (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
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).]
                                                                                                               10


       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. I also join Justice CORRIGAN’s dissenting statement in full, and resubmit
the remainder of this statement in order that it may be read alongside the CHIEF JUSTICE’s
response to this statement.

      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.
                         December 22, 2010                   _________________________________________
        1222                                                                 Clerk
