SADO; YOUTH INDIGENT DEFENSE S.B. 425 (S-2):
SUMMARY AS PASSED BY THE SENATE
Senate Bill 425 (Substitute S-2 as passed by the Senate)
Sponsor: Senator Sue Shink
Committee: Civil Rights, Judiciary, and Public Safety
Date Completed: 10-23-23
INTRODUCTION
The bill would require the Appellate Defender Commission to create a system of appellate
defense services for indigent youth. Generally, the bill specifies that appellate defenders would
have to serve indigent adults and indigent youth in their respective appeals processes. The
bill also requires a local government's indigent defense system to pay reasonable fees and
expenses for services provided by locally appointed private counsel to the indigent defense
system. The Commission would have to establish procedures for these fees and expenses and
procedures for the reimbursement of indigent defense systems. Additionally, the bill
prescribes a State reimbursement process for local governments that pay for locally appointed
private counsel within their indigent defense systems.
The bill would take effect October 1, 2024.
BRIEF RATIONALE
Governor Whitmer signed Executive Order 2021-6 on June 9, 2021, which created the Task
Force on Juvenile Justice Reform (Task Force) within the Department of Health and Human
Services. The Task Force was charged with analyzing Michigan's juvenile justice system and
recommending changes to State law, policy, and appropriations aimed to improve youth
outcomes. The Task Force found that the State lacks uniform judicial justice policies and
quality assurance standards, leading to disparities in outcomes for youth in the juvenile
system. Accordingly, the Task Force recommended that the State expand the State Appellate
Defender Office (SADO) to include services for juveniles.
BRIEF FISCAL IMPACT
The bill would implement recommendation #3(e) of the Michigan Task Force on Juvenile
Justice Reform (see BACKGROUND). Minor costs for the State Appellate Defender Office
(SADO) have already been included in the annual budget. Costs to local court systems would
likely increase slightly but would be fixed after three years of compliance.
PREVIOUS LEGISLATION
(This section does not provide a comprehensive account of previous legislative efforts on this subject matter.)
Senate Bill 425 is a companion bill to House Bill 4631. Both bills are similar to House Bill 4633
of the 2021-2022 Legislative Session.
MCL 780.712 et al. Legislative Analyst: Tyler P. VanHuyse
Fiscal Analyst: Michael Siracuse
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CONTENT
The bill would amend the Appellate Defender Act to do the following:
-- Increase the number of Appellate Defender Commission members, from seven
to nine, and specify that the two public members would have to have been
affected by the youth or adult justice system.
-- Specify that the Commission would serve indigent adults and indigent youths.
-- Create an indigent defense system that would be responsible for payment of
reasonable fees and expenses for the services of appellate defenders.
-- Specify that the Commission would have to establish a standard procedure for
the reimbursement of indigent defense systems and prescribe reimbursement
requirements.
Commission Membership
Under the Act, the Appellate Defender Commission consists of seven members appointed by
the Governor and are as determined as follows:
-- Two members recommended by the Michigan Supreme Court.
-- One member recommended by the Michigan Court of Appeals.
-- One member recommended by the Michigan Judges Association.
-- Two members recommended by the State Bar of Michigan.
-- One member who is not an attorney and is selected from the public by the Governor.
Instead, under the bill, the Appellate Defender Commission would consist of nine members
appointed by the Governor as follows:
-- Two members recommended by the Michigan Supreme Court.
-- One member recommended by the Michigan Court of Appeals.
-- One member recommended by the Michigan Judges Association.
-- Two members recommended by the State Bar of Michigan.
-- One member who would have to be recommended by the Michigan Indian Judicial
Association.
-- Two members who are not attorneys who would be selected from the public by the
Governor to represent the interests of individuals who had been affected by the youth or
adult justice system.
Commission Responsibilities
The Commission is responsible for the development of a system of indigent appellate defense
services that includes services provided by SADO and locally appointed private council. Under
the bill, the Commission would be responsible for the development of a system of appellate
defense services for indigent adults and indigent youth. Each system would have to include
the services described above.
Additionally, the Commission is responsible for developing minimum standards to which all
indigent criminal defense appellate services must conform. The bill would specify that the
minimum standards would have to be developed for all indigent appellate defense services
for adults and youth.
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Under the bill, "indigent" generally would mean that term as described in the Michigan
Indigent Defense Commission Act. According to the Act, a defendant is considered indigent if
the defendant is unable, without substantial financial hardship to the defendant or the
defendant's dependents, to obtain competent, qualified legal representation on the
defendant's own.1 Substantial financial hardship is presumed if the defendant receives
personal public assistance, including under the Food Assistance program, Temporary
Assistance for Needy Families, Medicaid, or disability insurance; resides in public housing; or
earns an income less than 140% of the Federal poverty guideline. A defendant is also
presumed to have a substantial financial hardship if he or she is currently serving a sentence
in a correctional institution or is receiving residential treatment in a mental health or
substance abuse facility. A defendant who does not fall into one of these categories must be
rigorously screened by the indigent criminal defense system. A defendant could be determined
as partially indigent; the Act requires the MIDC to promulgate rules and standards to guide
this determination.
"Adult" would mean an individual who is eligible to appeal a criminal conviction or exercise
any other postconviction remedy or an individual who is eligible to appeal an order issued
under Section 2d or 4 of the juvenile Code. (Sections 2d and 4 of the Code prescribe processes
for a juvenile to be tried as an adult.)
"Youth" would mean an individual who is eligible to appeal an order issued under Section 2a,
2d, or 2h of the juvenile Code. (Generally, Section 2a concerns a court's continued jurisdiction
beyond the maximum juvenile age of 18 under certain conditions.)
The Commission is responsible for compiling and keeping current a statewide roster of
attorneys eligible for, and willing to accept, appointment to serve as criminal appellate
defense counsel for indigents. Instead, under the bill, the Commission would be responsible
for compiling and keeping current the following:
-- A statewide roster of attorneys eligible for, and willing to accept, appointment to serve as
appellate defense counsel for indigent adults.
-- A statewide roster of attorneys eligible for, and willing to accept, appointment to serve as
appellate defense counsel for indigent youth.
Appellate Defender
Under the Act, an appellate defender, deputy appellate defender, or assistant appellate
defender, among other things, must represent an indigent defendant only after a conviction
or entry of a guilty plea or plea of nolo contendere (accepting conviction while not admitting
guilt) at the trial court level. Under the bill, this would apply only to an indigent adult. An
appellate defender, deputy appellate defender, or assistant appellate defender also would
have to represent an indigent youth only after an appealable order.
Under the Act, the appellate defender must conduct an appeal of a felony conviction or
conduct other postconviction remedies on behalf of a person for whom the appellate defender
is assigned as attorney. The bill would specify that this provision would apply to an indigent
adult for whom the appellate defender was assigned.
1
MCL 780.991
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Additionally, the bill would require an appellate defender to conduct an appeal of an order or
conduct other appropriate predisposition remedies on behalf of an indigent youth only after
an appealable order and for whom the attorney was assigned.
Under the bill, the duties of an appellate defender, deputy appellate defender, or assistant
appellate defender, would apply to appellate defense services for indigent adults and youth.
Special Assistant Appellate Defender
The Act allows the appellate defender to appoint special assistant appellate defenders to
represent indigent persons or otherwise assist in the representation of indigent persons at
any stage of the appellate or postconviction proceedings. The bill specifies that this provision
would apply to indigent adults. Additionally, the bill would allow the appellate defender to
appoint special assistant appellate defenders to represent indigent youth or otherwise assist
in the representation of indigent youth at any stage of the appellate proceedings, upon rules
adopted by the Commission.
Indigent Defense System
Under the bill, an indigent defense system would be responsible for the payment of reasonable
fees and expenses for the services of locally appointed private counsel appellate defense
services for indigent adults and youth.
"Indigent defense system" or "system" would mean the local unit of government that funds a
trial court or if a trial court is funded by more than one local unit of government, those local
units of government collectively.
The Commission would have to establish a standard procedure for the payment of locally
appointed private counsel by an indigent defense system described above. The procedure
would have to include rates and policies that were consistent with standards established under
Section 11(2)(b) of the Michigan Indigent Defense Commission Act. (Section 11(2)(b)
prescribes the minimum standards to guarantee the right of indigent defendants according to
the United States Constitution and Michigan Constitution, specially adhering to a controlled
workload.)
Additionally, the Commission would have to establish a standard procedure for the
reimbursement of indigent defense systems providing payment to locally appointed private
counsel at the rates and policies established by the Commission. Subject to appropriation, if
an indigent defense system provided payment to a locally appointed private counsel in this
manner, the State would have to reimburse the system for half of the expenditures to the
system. After the system had complied with establishing standard procedures for payment
and reimbursement for a full three fiscal years, the State would have to reimburse the system
for all expenditures exceeding the system's local contribution.
"Local contribution" would mean an indigent defense system's average annual expenditure
for attorney fees and expenses during the first three full fiscal years in which the system has
complied with the standard procedures, including reimbursed expenditures. If the Consumer
Price Index had increased since November 1 of the prior State fiscal year, the local
contributions would have to be adjusted by that percentage of 3%, whichever was less.
The bill states, "it is the intent of the legislature to fully fund this reimbursement".
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BACKGROUND
Governor Gretchen Whitmer signed Executive Order 2021-6 on June 9, 2021, which, among
other things, created the Task Force on Juvenile Justice Reform (Task Force) as a temporary
advisory body within the DHHS. The Task Force was charged with acting in an advisory
capacity with the goal of developing ambitious, innovative, and thorough analysis of
Michigan's juvenile justice system, and include recommendations for changes to State law,
policy, and appropriations aimed to improve youth outcomes. 2
The Task Force released its report and recommendations on July 22, 2022. Overall, the report
found that the quality of services and case management received by youth, from defense to
post-disposition placement, differs across the State. The State lacks uniform judicial justice
policies and quality assurance standards, leading to disparities the State cannot address and
data it cannot rely upon. Additionally, the lack of State centralization has led to discrepancies
in the implementation of research-based, developmentally appropriate practices across the
State. Accordingly, children participating in the judicial justice system may not receive quality
care or may receive care different from their peers.
Among other recommendations, the Task Force unanimously suggested that the Michigan
Indigent Defense Commission be expanded to include development, oversight, and
compliance with youth defense standards in local county defense systems. Specifically, it was
recommended that the State expand the State Appellate Defender Office to include services
for juveniles which will include post-disposition services.3
FISCAL IMPACT
The bill is unlikely to have more than a minimal fiscal impact on the State or local units of
government.
It requires the Appellate Defender Commission to develop a system of appellate defense
services for indigent youth. The costs for these services would mirror the costs for current
services provided to indigent adults, but to a lesser degree. 4 Just like the current system for
indigent appeals, SADO would be responsible for at least 25% of juvenile criminal appeals,
while local units of government would have to cover the cost of locally appointed private
counsel by the indigent defense system established by the Commission, with the State to
reimburse half of appointed counsel costs. Public Act 119 of 2023 already covered the
increased costs expected for SADO, with $556,900 and 3.0 FTEs added to its annual budget
for juvenile appeals.
While local court systems could see a small increase in costs for youth appeals, under the bill
those costs would be fixed after three years of compliance, with the State to cover 100% of
local costs exceeding the system's local contribution.
Lastly, the bill would likely add minor administrative support expenses for the Appellate
Defender Commission, as it increases the Commission s membership from seven to nine.
2
Executive Order 2021-6.
3
Michigan Task Force on Juvenile Justice Reform Report and Recommendations, p. 17, July 22, 2022.
4
The most recent court data available shows there were over 35,000 felony convictions statewide, but
only 46 felony juvenile convictions. See Statewide Circuit Court Summary 2021. Available at:
https://www.courts.michigan.gov/4a8ef2/siteassets/reports/statistics/caseload/2021/statewide.pdf.
.
SAS\S2324\s425sb
This analysis was prepared by nonpartisan Senate staff for use by the Senate in its deliberations and does not constitute an official
statement of legislative intent.
Page 5 of 5 Bill Analysis @ www.senate.michigan.gov/sfa sb425/2324

Statutes affected:
Substitute (S-1): 780.712
Senate Introduced Bill: 780.712
As Passed by the Senate: 780.712
As Passed by the House: 780.712
Public Act: 780.712
Senate Enrolled Bill: 780.712