Opinion
01-10.
June 26, 2001.
On order of the Court, this is to advise that the Court is considering a proposal to issue an administrative order that would govern the appointment of attorneys and other representatives who provide trial court services for indigent litigants and other persons. Before determining whether the proposal should be adopted, changed before adoption, or rejected, this notice is given to afford any interested person the opportunity to comment on the form or the merits of the proposal. We welcome the views of all who wish to address the proposal or who wish to suggest alternatives. Before adoption or rejection, this proposal will be considered at a public hearing by the Court. The Clerk of the Court will publish a schedule of future public hearings.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption of the proposal in its present form.
[The proposed order would read as follows.]
Effective ___, this order governs the appointment of attorneys and other persons who provide services at public expense or for court-approved private compensation in proceedings before all Michigan circuit courts, probate courts, district courts, and municipal courts. This order applies to assignments to represent indigent litigants, and to assignments to serve as guardians, conservators, guardians ad litem, court-appointed experts, or any similar position. This order does not apply to disputes over the compensation to be paid to a privately retained attorney or other service provider.
On or before ___, the State Court Administrator shall develop model plans that are consistent with the directives in this order and suitable for adoption as local administrative orders. Each trial court must either select one of the model plans or create its own plan.
On or before ___, each trial court must submit to the State Court Administrator, pursuant to MCR 8.112(B)(3), a local administrative order implementing the plan selected by that court. The local administrative order must have an effective date of [same date as first paragraph] . The State Court Administrator may stay the effective date of the local order, pursuant to MCR 8.112(B)(3), if the proposed local order does not comply fully with this order.
A plan must specify how the trial court will select appointees and determine their compensation. To the extent possible, the plan should de-emphasize direct involvement by the trial court's judges. Objective criteria should be used to make the selections and determine the compensation.
The plan must provide for maintaining records of the appointments made and the compensation paid to the appointees. The records must include the name of the person who received each appointment, the amount paid for the services, and the names of the persons who selected the appointee, made the appointment, and determined the compensation.
Each trial court must submit copies of its appointment records to the State Court Administrator on dates to be determined by the State Court Administrator. The original records shall be public records and must be available for review at the trial court, without charge, by any member of the public. The plan may provide for reasonable access rules and a reasonable copying charge.Staff Comment: In file 99-64, the Court previously published for comment a proposal to amend Canon 7 of the Michigan Code of Judicial Conduct. The proposal in file 99-64 would impose limitations on judges' authority to appoint persons who have contributed to the judges' election campaigns.
The currently proposed administrative order is broader in scope, but parts of it reflect comments that the Court received in file 99-64. Instead of disqualifying campaign contributors, this proposed order would require full disclosure of all appointments made by each judge. In addition to counsel appointments, the proposed order also would apply to, for example, an appointment to serve as a guardian or conservator.
The order's requirements would be implemented by local administrative orders. The State Court Administrator would develop model orders suitable for use by individual trial courts. Or, trial courts would have the option of designing their own plans. All plans should de-emphasize the direct involvement of trial judges in the process of making appointments and determining the compensation to be paid to appointees. No local administrative order could take effect until it had been approved by the State Court Administrator.
A separate order published today announces a proposal to amend MCR 6.005(I) by including a cross-reference to this proposed administrative order.
The staff comment is published only for the benefit of the bench and bar and is not an authoritative construction by the Court.
Publication of this proposal does not mean that the Court will issue an order on the subject, nor does it imply probable adoption in its present form. Timely comments will be substantively considered, and your assistance is appreciated by the Court.
A copy of this order will be given to the secretary of the State Bar and to the State Court Administrator so that they can make the notifications specified in MCR 1.201. Comments on this proposal may be sent to the Supreme Court clerk in writing or electronically by October 1, 2001. P.O. Box 30052, Lansing, MI 48909, or MSC_clerk@jud.state.mi.us. When filing a comment, please refer to file 01-10.