STATE OF MICHIGAN
IN THE COURT OF APPEALS
KATINA BROWN, ROBERT PUMFREY,
WILLIAM JAMES and ELIZABETH
MIKLOSOVIC, on behalf of themselves
and all others similarly situated,
Plaintiffs,
-vsHON. DENNIS C. KOLENDA, Judge of the
17th Circuit Court,
Defendant.
____________________________________________________/
PLAINTIFFS’ BRIEF IN SUPPORT OF
THEIR COMPLAINT FOR SUPERINTENDING CONTROL
CERTIFICATE OF SERVICE
*** ORAL ARGUMENT REQUESTED ***
Terence R. Flanagan (P24650)
Cooperating Attorney, American Civil
Liberties Union Fund of Michigan
PO Box 413
Hartland, MI 48353
810-623-9633
James E. Czarnecki, II (P67847)
Cooperating Attorney, American Civil
Liberties Union Fund of Michigan
PO Box 1467
Royal Oak, MI 48068
248-506-3792
Mark R. Granzotto (P31492)
Cooperating Attorney, American Civil
Liberties Union Fund of Michigan
414 West 5th St.
Royal Oak, MI 48067
248-546-4649
Michael J. Steinberg (P43085)
Kary L. Moss (P49759)
American Civil Liberties Union
Fund of Michigan
60 West Hancock
Detroit, MI 48201
313-578-6814
David A. Moran (P45353)
Cooperating Attorney, American Civil
Liberties Union Fund of Michigan
Wayne State University Law School
Detroit, MI 48202
313-577-3973
TABLE OF CONTENTS
Page
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
STATEMENT REGARDING APPELLATE JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I.
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II.
SUPERINTENDING CONTROL IS APPROPRIATE BECAUSE JUDGE
KOLENDA HAS VIOLATED A CLEAR LEGAL DUTY BY DENYING
THE PLAINTIFFS’ FOURTEENTH AMENDMENT RIGHT TO
APPOINTED APPELLATE COUNSEL BY RULING, CONTRARY TO
THE EXPLICIT DICTATES OF THE UNITED STATES SUPREME
COURT’S RECENT DECISION IN HALBERT, THAT THEY WAIVED
THEIR RIGHT TO COUNSEL WHEN THEY PLED GUILTY . . . . . . . . . . . . . 4
A.
Halbert’s Ruling Regarding Waiver Was Germane to the
Controversy Before the Court and is Binding Precedent, Not Mere
Dictum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B.
No Other Remedy is Available which is Adequate for these
Plaintiffs and Future Indigents Who Plead Guilty or Nolo
Contendere Before Judge Kolenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C.
The Question of Halbert’s Retroactivity Is Not Involved in
This Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
RELIEF REQUESTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF SERVICE
ii
INDEX OF AUTHORITIES
Cases
Page
American Family Mutual Ins. Co v Shannon, 120 Wis 2d 560; 356 NW2d 175 (1984) . . . . . . . 11
Chase v American Cartage, 176 Wis 235; 186 NW 598 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . 7
City of Detroit v Public Utilities Comm., 288 Mich 267; 286 NW2d 368 (1939) . . . . . . . . . . . . . 7
Counselman v Hitchcock, 142 US 547;12 S Ct 195; 35 L Ed 1110 (1892) . . . . . . . . . . . . . . . . . 10
Douglas v California, 372 US 357; 83 S Ct 814; 9 LE2d 811 (1968) . . . . . . . . . . . . . . . . . . . . . . 5
Halbert v Michigan, 545 US ___; 125 S Ct 2582; 162 L Ed 2d 352 (2005) . . . . . . . . . . . . . . . . . 1
In Re Cox’ Estate, 383 Mich 108; 174 NW2d 558 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Julian v Central Trust Co., 193 US 93: 24 S Ct 399: 48 L Ed 629 (1904) . . . . . . . . . . . . . . . . . . 9
Kastigar v United States, 406 US 441; 92 S Ct 1653, 1659; 32 L Ed 2d 212 (1972) . . . . . . . . . . 9
Kokkonen v Guardian Life Ins., 511 US 375; 114 S Ct 1673: 128 L Ed 2d 212 (1994) . . . . . . . . 9
Local 8599 United Steelworkers v. Board of Education, 162 Cal. App.3d 823 (1984) . . . . . . . 12
Local 8599, United Steelworkers of America v Board of Education,
162 Cal App 3d 823, 209 Cal Rptr 16, 21 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
People v Burton, 429 Mich 133; 413 NW 2d 413 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
People v Carpentier, 446 Mich 19; 521 NW 2d 195 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
People v Colbath, 474 Mich 865; 703 NW 2d 801 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
People v Hawthorne, 265 Mich App 47; 692 NW2d 879 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 7
People v Hicks, 259 Mich App 518; 675 NW2d 599 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
People v Houlihan, ___ Mich ___; ___ NW2d ___ (2005) WL 3446370 (2005) . . . . . . . . . . . . 17
People v Houlihan, Michigan Supreme Court No. 128340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
People v Swint, 225 Mich App 353; 572 NW 2d 666 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iii
Recorder’s Court Bar Ass’n v Wayne Circuit Court,
443 Mich 110; 503 NW 2d 885 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Sarnoff v American Home Products Corp., 798 F 2d 1075 (7th Cir 1986) . . . . . . . . . . . . . . . . . 11
Sarnoff v. American Home Products Corp., 798 F.2d 1075 (7th Cir. 1986) . . . . . . . . . . . . . . . . 12
Simmons v Mertish, Sixth Circuit No. 03-2609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Stover v Stover, 60 Md App 470, 483 A. 2d 783 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v Crawley, 837 F 2d 291 (7th Cir 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Statutes
MCL 600.310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Court Rules
MCR 3.302(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
MCR 3.302(E)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
MCR 6.425(G)(1)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
MCR 7.205(F)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
iv
STATEMENT REGARDING APPELLATE JURISDICTION
The Court has jurisdiction to consider this original action. The Court’s jurisdiction is
predicated on MCR 3.302 and MCL 600.310.
v
STATEMENT OF QUESTIONS PRESENTED
SHOULD THIS COURT GRANT PLAINTIFFS’ REQUEST FOR
SUPERINTENDING CONTROL TO COMPEL JUDGE DENNIS C. KOLENDA
TO PERFORM HIS CLEAR LEGAL DUTY TO FOLLOW THE SUPREME
COURT OF THE UNITED STATES’ DECISION IN HALBERT V MICHIGAN,
545 US ___; 125 S CT 2582; 162 L Ed2d 552 (2005)?
Plaintiffs say “Yes”.
vi
STATEMENT OF FACTS
Plaintiffs Katina Brown, Robert Pumfrey, William James and Elizabeth Miklosovic were
all convicted of felonies after pleading guilty or nolo contendere before the Defendant in this
matter, Kent County Circuit Judge Dennis C. Kolenda. All were sentenced to prison terms by
Judge Kolenda.
Name
Type of Plea
Date of Plea
Date of Sentencing
Brown
Pumfrey
James
Miklosovic
Nolo Contendere
Guilty
Guilty
Nolo Contendere
November 16, 2004
December 21, 2004
September 22, 2004
May 3, 2005
February 7, 2005
February 28, 2005
December 13, 2004
June 6, 2005
All four plaintiffs requested the appointment of appellate counsel to represent them in
post-conviction proceedings. In an Opinion released September 27, 2005. Judge Kolenda
denied their requests for appointed appellate counsel along with the requests made by seven
other indigent criminal defendants. Attached hereto as Exhibit A is a copy of Judge Kolenda’s
September 27, 2005 Opinion. With respect to these four named Plaintiffs, Judge Kolenda ruled
that, even though the decision of the United States Supreme Court in Halbert v Michigan, 545
US ___; 125 S Ct 2582; 162 L Ed 2d 552 (2005)1 applied to their cases, they had waived their
1
Halbert was not the first case to reach the Supreme Court of the United States involving
the question of the constitutionality of the practice of denying appointed appellate counsel in
Michigan courts . An earlier case, Kowalski v. Tesmer, 543 U.S. 125; 125 S. Ct. 564; 160 L. Ed.
2d 519 (2004), also presented this issue. Tesmer was a federal court action in which Judge
Victoria Roberts of the Eastern District of Michigan issued a declaratory judgment which found
that the denial of appellate counsel to indigents pleading guilty or nolo contendere in Michigan
courts violated the United States Constitution. Tesmer v Granholm, 114 F. Supp. 2d 603 (ED.
Mich. 2000). In a series of orders written after Judge Roberts entered that declaratory decree,
Judge Kolenda concluded that he was not bound by the federal court’s ruling and that the federal
district court had reached the wrong result on the constitutional issue. Thus, Judge Kolenda
routinely issued orders denying requests for appointed appellate counsel by indigents pleading
before him. Attached hereto as Exhibit B is one such order issued by Judge Kolenda after Judge
1
right to appointed appellate counsel at the time they pled:
Each explicitly waived his or her entitlement to such counsel, and,
for the reasons just discussed, Halbert does not preclude giving
effect to such particular waivers.
Opinion (Exhibit A), p. 13
The views expressed by Judge Kolenda in his September 27, 2005 Opinion are being
applied to other indigent defendants who have already pled, or will be pleading, guilty or nolo
contendere before him. Attached hereto as Exhibit C are eight separate orders denying appellate
counsel, all issued after his September 27, 2005 opinion. In each of these orders Judge Kolenda
cites to the waiver portion (“Part B”) of his September 27, 2005 opinion as the basis for denying
the request.
The American Civil Liberties Union (ACLU) Fund of Michigan represents these four
named Plaintiffs for the limited purpose of obtaining an appointed attorney to represent them on
appeal. Neither the ACLU Fund, nor the volunteer attorneys involved in this matter, will
represent these named Plaintiffs in their actual appeals from their plea-based convictions and
sentences.
Plaintiffs now bring this Complaint for Superintending Control on behalf of themselves
and on behalf of every other indigent defendant who pleads guilty or nolo contendere before
Roberts’ decision in Tesmer. It is noteworthy that in a footnote in that opinion Judge Kolenda
expressed his view that he was free to disagree with the federal district court’s ruling on the
constitutional question. Judge Kolenda added, however, “if and when the Sixth Circuit Court of
Appeals or the Supreme Court of the United States concur with Judge Roberts, the undersigned
will follow, without hesitation, the law so stated.” Order (Exhibit B), p. 2 (emphasis added).
The Supreme Court of the United States has concurred with Judge Roberts. And, despite his
earlier assurance that he would follow a United States Supreme Court ruling on this issue
“without hesitation”, Judge Kolenda’s conduct has gone well beyond hesitation, into the realm of
open defiance.
2
Judge Kolenda.
3
ARGUMENT
I.
STANDARD OF REVIEW
Since this matter comes within the Court’s original jurisdiction, review of the issues
presented herein must be de novo. A trial court’s ruling on constitutional questions and issues of
law are reviewed de novo. People v Swint, 225 Mich App 353; 572 NW 2d 666 (1997); People v
Carpentier, 446 Mich 19; 521 NW 2d 195 (1994).
II.
SUPERINTENDING CONTROL IS APPROPRIATE BECAUSE
JUDGE KOLENDA HAS VIOLATED A CLEAR LEGAL DUTY BY
DENYING THE PLAINTIFFS’ FOURTEENTH AMENDMENT
RIGHT TO APPOINTED APPELLATE COUNSEL BY RULING,
CONTRARY TO THE EXPLICIT DICTATES OF THE UNITED
STATES SUPREME COURT’S RECENT DECISION IN HALBERT,
THAT THEY WAIVED THEIR RIGHT TO COUNSEL WHEN
THEY PLED GUILTY.
In its landmark decision in Halbert v Michigan, the Supreme Court of the United States
ruled that indigents pleading guilty or nolo contendere in a Michigan court have a federal
constitutional right to the appointment of appellate counsel. In addition, the Supreme Court held
in Halbert that the same federal constitutional concerns required the rejection of the State of
Michigan’s contention that an indigent defendant could be compelled to forfeit the constitutional
right to appointed appellate counsel by waiving that right as part of the plea taking process:
We are unpersuaded by the suggestion that, because a defendant may be able to
waive his right to appeal entirely, Michigan can consequently exact from him a
waiver of the right to government-funded appellate counsel. . . .Many legal rights
are ‘presumptively waivable,’ post at 2602, (THOMAS, J., dissenting), and if
Michigan were to require defendants to waive all forms of appeal as condition of
entering a plea, that condition would operate against moneyed and impoverished
defendants alike. A required waiver of the right to appointed counsel’s assistance
when applying for leave to appeal to the Michigan Court of Appeals, however,
would accomplish the same result worked by Mich. Comp. Laws Ann. 770.3a
(West 2000): It would leave indigents without access to counsel in that
4
narrow range of circumstances in which, our decisions hold, the State must
affirmatively ensure that poor defendants receive the legal assistance
necessary to provide meaningful access to the judicial system. See Douglas (v
California), 372 US at 357-358, 83 S Ct 814; M.L.B (v S.L.J.), 519 US at
110-113, 117 S Ct 555.
125 S Ct at 2594, n. 8 (Emphasis Added)
Despite this unequivocal language from our nation’s highest tribunal, Judge Kolenda has
erroneously labeled such language as unbinding dictum that need not be followed. In an effort to
circumvent the clear holding of Halbert, Judge Kolenda wrote his September 27, 2005 opinion
that is rife with mistakes and unsupported analysis, in which he uses quotations completely out
of context to support his patently incorrect view of the law of dictum. As plaintiffs will show,
the Halbert Court’s ruling on the issue of waiver was fundamental to the resolution of that case
and clearly not dictum.
Judge Kolenda has violated and continues to violate a clear legal duty by failing to
appoint appellate counsel to represent indigents who plead before him in their first-tier appeal to
the Michigan Court of Appeals. Pursuant to MCL 600.310 and MCR 3.302(E)(3), plaintiffs
request that this Court intervene and order superintending control directed to Judge Kolenda to
do the following things which he has the clear legal duty to do under the Supreme Court of the
United States’ decision in Halbert:
1.
Judge Kolenda should be directed to grant the four named plaintiffs their
requests for the appointment of appellate counsel;
2.
Judge Kolenda should be directed to cease and desist from advising
indigent criminal defendants who plead guilty or nolo contendere before
him that, by pleading to a charge, they are waiving their constitutional
5
right to the appointment of appellate counsel;
3.
Judge Kolenda should be directed to cease and desist from denying any
request for appointed counsel brought by an indigent who pled guilty or
nolo contendere before him solely on the ground that this federal
constitutional right was waived during the plea taking process.
4.
Judge Kolenda should be directed to identify each indigent defendant who
has entered a plea of guilty or nolo contendere before him since June 23,
2004 (i.e., those who could under MCR 7.205(F)(3) still directly file an
application for leave to appeal within the 12-month period before Halbert
was decided on June 23, 2005), whom he has erroneously advised with
respect to waiver, and re-instruct them correctly on the basis of the
Supreme Court’s decision in Halbert; and
5.
Issue any other writs or orders as the Court deems appropriate based on
the facts as stated in the complaint for superintending control.
A.
Halbert’s Ruling Regarding Waiver Was Germane to the
Controversy Before the Court and is Binding Precedent, Not
Mere Dictum.
Judge Kolenda noted in his September 27, 2005 Opinion opinion that dictum, i.e.,
language contained in a decision which is not necessary to a court’s ultimate decision, is not
binding on an inferior court. As the Supreme Court noted in Halbert, the record there showed
that the defendant, “in common with other defendants convicted on their pleas, had no
recognized right to appointed appellate counsel he could elect to forgo.” 125 S Ct at 2594.
Because Halbert rejected the state’s position that the defendant himself had waived his right to
6
counsel, Judge Kolenda has labeled Halbert’s unequivocal language regarding the impropriety of
requiring waiver as mere dictum.
[Halbert] did not, despite what it said, authoritatively determine that that
rightcannot be waived. . . What Halbert said about waiver by anyone other than
Mr. Halbert was not authoritative, but is dictum, i.e., is not binding on any other
court.
Opinion, pp. 7-8 (emphasis added).
This pronouncement by Judge Kolenda it is flat out wrong. Both the Michigan Supreme
Court and this Court have frequently held over the last half-century that statements by a
jurisdiction’s highest court meant to be a guide to future proceedings are binding precedent.
When a court of last resort intentionally takes up, discusses, and decides a
question germane to, though not necessarily decisive of, the controversy, such
decision is not dictum, but is a judicial act of the court which it will recognize as a
‘binding decision.’
City of Detroit v Public Utilities Comm., 288 Mich 267, 299-300; 286 NW 2d 368, 379 (1939)
(quoting Chase v American Cartage, 176 Wis 235, 237; 186 NW 598, 599 (1922)). In accord, In
Re Cox’ Estate, 383 Mich 108, 117; 174 NW 2d 558, 561 (1970); People v Hicks, 259 Mich App
518, 529; 675 NW 2d 599, 606, fn 3 (2003); People v Hawthorne, 265 Mich App 47, 56; 692
NW 2d 879, 886, fn 4 (2005).
The issue of waiver could not have been more germane to the controversy in Halbert.
Halbert itself involved the constitutionality of a Michigan statute, MCL 770.3a, which severely
limited the circumstances in which a court could appoint appellate counsel to an indigent
pleading guilty or nolo contendere. MCL 770.3a(4) also specifically provided that, as part of the
plea taking process, indigents were to be advised that by pleading guilty they would be waiving
the right to counsel.
7
In light of the manner in which MCL 770.3a(4) was written, it is not particularly
surprising that the State of Michigan’s defense of that statute before the Supreme Court of the
United States in Halbert was based on two different arguments. First, the State of Michigan
argued that the denial of appointed counsel did not violate the United States Constitution. But,
the State’s alternative argument rested on the concept of waiver - that indigents who plead guilty
or nolo contendere could be constitutionally deprived of their right to counsel by waiving that
right during the plea taking process. Attached hereto as Exhibit D are the pertinent pages from
the brief which was filed by the State of Michigan in Halbert. As these pages indicate, the State
argued the waiver issue at length before the Supreme Court of the United States. Mr. Halbert in
his brief to the Supreme Court responded to these waiver arguments, contending that a waiver in
this context would itself violate the United States Constitution.
The waiver issue was squarely presented to the Supreme Court in Halbert and the
Supreme Court, the ultimate “court of last resort,” decided that issue, rejecting the State of
Michigan’s position that a defendant could waive his federal constitutional right to appointed
appellate counsel through the plea process. The Halbert Court spoke clearly and definitively on
this hotly-contested point. There is no question that its unequivocal pronouncement repudiating
the state’s position with respect to waiver was meant to be, and is, binding precedent. Judge
Kolenda’s attempt to sidestep this essential aspect of the Halbert Court’s ruling by calling it
dictum must be rejected.
Moreover, the authority cited by Judge Kolenda in his September 27, 2005 Opinion to
support his position regarding dictum is highly suspect. Some cases are cited for the wrong
proposition. The “holdings” cited in some others contain serious misinterpretations of the cases
8
themselves.
For example, at page 7 of the Opinion, Judge Kolenda cites Kokkonen v Guardian Life
Ins., 511 US 375, 379; 114 S Ct 1673, 1676: 128 L Ed 2d 212 (1994), for the proposition that
“Sometimes, the holding in a case is less expansive, far less so, than its language.” This
language is neither a holding nor a quotation from Kokkonen. At best, this statement is only
Judge Kolenda’s interpretation of the meaning of Kokkonen. At issue in Kokkonen was the
doctrine of ancillary jurisdiction, which recognizes that federal courts may in some cases
exercise jurisdiction over matters which are otherwise beyond their statutory jurisdiction. The
defendant in Kokkonen cited to a 90-year-old opinion, Julian v Central Trust Co., 193 US 93: 24
S Ct 399: 48 L Ed 629 (1904), where the Court had relied on a then-current treatise on equity, to
support its position that ancillary jurisdiction should be given an expansive interpretation. In
rejecting that position, Justice Scalia, for a unanimous Court in Kokkonen, stated:
The doctrine of ancillary jurisdiction can hardly be criticized for being overly
rigid or precise, but we think it does not stretch as far as that statement suggests.
The expansive language of Julian can be countered by (equally inaccurate) dicta
in later cases that provide an excessively limited description of the doctrine.
511 US at 379.
Judge Kolenda’s reliance on Kokkonen is seriously misplaced as the case says nothing
about what constitutes dictum. The issues in Halbert and Kokkonen could not be more different,
and the attempt to apply the latter to the issues involved herein is strained at best.
Again at page 7 of his opinion Judge Kolenda presents a pieced-together quote and,
seemingly, passes it off as a proposition to support his position. Citing Kastigar v United States,
406 US 441, 450, 454-455; 92 S Ct 1653, 1659, 1662; 32 L Ed 2d 212 (1972), Judge Kolenda
wrote:
9
When unnecessary to the Court’s ultimate decision, declarations in
an opinion, even very deliberately-stated, unequivocal
declarations, such as ‘[W]e are clearly of [the] opinion,’ ‘cannot be
considered binding authority.’
In fact, the correct, and entirely separate quotes from Kastigar are:
We are clearly of the opinion that no statute which leaves the
party or witness subject to prosecution after he answers the
criminating question put to him, can have the effect of supplanting
the privilege conferred by the Constitution of the United States.
406 U.S. at 450-451 (emphasis added).
and
The broad language in Counselman [v Hitchcock, 142 US 547;12 S
Ct 195; 35 L Ed 1110 (1892)] relied upon by petitioners was
unnecessary to the Court’s decision, and cannot be considered
binding authority.
406 U.S. at 454-455 (emphasis added)
The impression given by the “quote” provided by Judge Kolenda is that Kastigar
somehow stands for the proposition that even when a court states “We are of the opinion,” the
declaration still “cannot be considered binding authority” if it is unnecessary to the court’s
ultimate decision., i.e., mere dictum. But Kastigar never says that, either directly or indirectly.
Rather, Judge Kolenda has pieced a “quote” together to fit his intended use, even though the
“quote” as he presents it bears no relationship to the meaning of the case cited. Neither the
citation to the correct page numbers nor the use of separate sets of quotation marks (without an
ellipsis to signify a break in the quote) can justify this blatant error.
In the sentence immediately following the Kastigar citation, Judge Kolenda relies on a
Seventh Circuit Court of Appeals decision to define dictum. The Opinion states:
Such declarations, not just asides and illustrations, are known as ‘dictum’ and, as
10
such, are what ‘a later court, even if it is an inferior court, is free to reject.’ United
States v Crawley, 837 F 2d 291, 292 (7th Cir 1988).
Opinion (Exhibit A), at p. 8.
While Judge Kolenda’s Opinion accurately quotes this sentence from Crawley, the
paragraph preceding the one in which this quotation is found is fatal to the position which Judge
Kolenda has chosen to adopt in this case. In fact, the Crawley court provides an excellent
definition of dictum which, when applied here, proves convincingly that Halbert’s discussion of
waiver was not dictum:
We have defined dictum as ‘a statement in a judicial opinion that could have been
deleted without seriously impairing the analytical foundations of the holding –
that, being peripheral, may have not received the full and careful consideration of
the court that uttered it. Sarnoff v American Home Products Corp., 798 F 2d
1075, 1084 (7th Cir 1986). ‘[D]ictum is a general argument or observation
unnecessary to the decision. . . The basic formula [for distinguishing holding
from dictum] is to take account of facts treated by the judge as material and
determine whether the contested opinion is based upon them.’ Local 8599,
United Steelworkers of America v Board of Education, 162 Cal App 3d 823, 834,
209 Cal Rptr 16, 21 (1984). A dictum is ‘any statement made by a court for use
in argument, illustration, analogy or suggestion. It is a remark, an aside,
concerning some rule of law or legal proposition that is not necessarily essential
to the decision and lacks the authority of adjudication.’ Stover v Stover, 60 Md
App 470, 476, 483 A. 2d 783, 786 (1984). It is ‘a statement not addressed to the
question before the court or necessary for its decision.’ American Family Mutual
Ins. Co v Shannon, 120 Wis 2d 560, 565, 356 NW 2d 175, 178 (1984). As often
in dealing with complex terms, the definitions (those above, and others we could
give) are somewhat inconsistent, somewhat vague, and somewhat circular.’
Crawley, 837 F.2d at 292.
This crucial portion of Crawley was ignored by Judge Kolenda. But, unlike the language
he extracted from Crawley, this quotation regarding dictum in Crawley completely undermines
the conclusion Judge Kolenda reached. As noted earlier, Halbert’s waiver language was crucial
to the outcome. It could not have “been deleted without seriously impairing the analytical
11
foundations of the holding.” Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1084
(7th Cir. 1986). It was not some “general observation unnecessary to the decision.” Local 8599
United Steelworkers v. Board of Education, 162 Cal. App.3d 823, 834 (1984). It was not an
“aside. . . that lack[ed] the authority of adjudication.” American Family Mutual Insurance Co. v.
Shannon, 356 NW2d 175, 178 (1984). Indeed, the United States in Halbert took pains to
address, and reject, the State’s argument that an indigent defendant could waive his right to
appointed appellate counsel in return for his plea. Halbert, 125 S Ct at 2594, n. 8. As the
Crawley decision indicates, the language in Halbert cannot be considered dictum by any stretch
of legal reasoning.
Judge Kolenda’s opinion also falls short when he asserts that the right to the appointment
of appellate counsel can be waived after pleading because “[f]oregoing appellate counsel does
not impair the integrity of the fact-finding process.” Opinion (Exhibit A), p. 11. The Opinion
cites no authority for this contention that the rights of a person charged with a crime are
somehow fundamental only if they are crucial to the fact-finding process. In any event, the
fact-finding process was certainly not at issue in Halbert. As the Supreme Court stated, Halbert
concerns the necessity of appellate counsel to help guide unsophisticated defendants through the
complexities of appeals:
Navigating the appellate process without a lawyer’s assistance is a
perilous endeavor for a layperson, and well beyond the
competence of individuals, like Halbert, who have little education,
learning disabilities, and mental impairments.
125 S. Ct. at 2593.
In his September 27, 2005 Opinion, Judge Kolenda made note of the fact that the
Michigan Supreme Court issued two orders only six days before in People v Harris, 474 Mich
12
863; 703 NW 2d 471 (2005) and People v Colbath, 474 Mich 865; 703 NW 2d 801 (2005).
Opinion (Exhibit A), p. 17. What is significant about these two Michigan Supreme Court orders
is that they reversed Judge Kolenda’s own decision denying appointed appellate counsel based
on the Supreme Court of the United States’ ruling in Halbert.2
In his Opinion, Judge Kolenda challenged the precedential value of Harris and Colbath.
He contended that his decision was not controlled by what the Michigan Supreme Court did in
these two cases because he was not required to follow “the small print in the back of the
Michigan Reports.” Opinion (Exhibit A), p. 17. This challenge is rather remarkable in light of
the fact that one of the cases which Judge Kolenda cites in support of his conclusion that he can
ignore the significance of the Michigan Supreme Court’s orders is a Court of Appeals’ decision
(written by a present member of the Michigan Supreme Court), which indicates that “Supreme
Court peremptory orders are binding precedent when they can be understood.” People v Edgett,
220 Mich App 686, 693, n. 6; 560 NW2d 360, 363 (1996).
2
The orders entered by the Michigan Supreme Court in Harris and Colbath are identical
in their content. Both provide:
In an order dated June 28, 2005, Harris v Michigan, 545 US ___; 125 S Cr 2989
(2005), the Supreme Court of the United States remanded this matter to this Court
for further consideration in light of Halbert v Michigan, 545 US ___; 125 S Ct
2582; 162 L Ed 2d 552 (2005). After further consideration, we vacate this
Court’s order of June 25, 2004, 470 Mich 882 (2004), and remand this case to the
Kent Circuit Court for a determination whether defendant is indigent and, if so,
for the appointment of appellate counsel, in light of Halbert, supra. Appointed
counsel may file an application for leave to appeal with the Court o Appeals,
and/or any appropriate post-conviction motions in the trial court, within 12
months of the date of the circuit court’s order appointing counsel, in accord with
the deadlines in effect at the time defendant was denied counsel. We do not retain
jurisdiction.
474 Mich at 863, 865.
13
It may well be that Judge Kolenda finds it difficult to understand what the Michigan
Supreme Court has done in Harris and Colbath. He is, however, alone in failing to grasp the
significance of these two orders. In both of these cases, the defendant requested the appointment
of appellate counsel after being advised that, by pleading guilty, they were waving the right to
appointed appellate counsel. Thus, both Harris and Colbath have the same waiver issue which
Judge Kolenda adopted and yet, in both cases, the Michigan Supreme Court concluded “after
further consideration” that counsel must be appointed in these cases in light of the decision in
Halbert.
Judge Kolenda has in his September 27, 2005 Opinion accomplished a rare, perhaps
unprecedented feat. He has not only managed to defy a clear ruling of the Supreme Court of the
United States, he has also managed to disregard two equally clear decisions of the Michigan
Supreme Court.
Plaintiffs would further note that on December 14, 2005, the Michigan Supreme Court
amended MCR 6.425(G)(1)(c), effective January 1, 2006, to require the appointment of appellate
counsel to those defendants who submit a timely request. The newly-amended rule now reads:
“In a case involving a conviction following a plea of guilty or nolo contendere, if the defendant
is indigent, the court must enter an order appointing a lawyer if the request is filed within 42
days of sentencing.” (emphasis added). The Staff Comment which accompanies this new court
rule indicates that this mandatory language has been inserted, “to more accurately reflect the
holding of the United States Supreme Court in Halbert.” The Harris and Colbath orders,
coupled with the new court rule, prove convincingly that the Michigan Supreme Court considers
Halbert’s language regarding the non-waivability of the right to counsel as binding precedent,
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not mere dictum.
Plaintiffs urge this Court to recognize the fatal flaws in Judge Kolenda’s opinion and
grant this complaint for superintending control.
B.
No Other Remedy is Available which is Adequate for these
Plaintiffs and Future Indigents Who Plead Guilty or Nolo
Contendere Before Judge Kolenda.
Plaintiffs recognize that superintending control is an exceptional remedy. MCR 3.302(B)
indicates that such a complaint may not even be filed “[i]f another adequate remedy is available
to the party seeking the order . . .” As the Michigan Supreme Court aptly noted in Recorder’s
Court Bar Ass’n v Wayne Circuit Court, 443 Mich 110, 134: 503 NW 2d 885, 897 (1993): “For
superintending control to lie, the petitioners must establish that the respondents have failed to
perform a clear legal duty and the absence of an adequate legal remedy.” (Emphasis in original).
In accord, People v Burton, 429 Mich 133, 139; 413 NW 2d 413, 416 (1987); In re Gosnell, 234
Mich App 326; 594 NW 2d 90 (1999). Appellate review is limited to questions of law. Burton,
429 Mich at 139; 413 NW 2d at 416.
Judge Kolenda has failed to perform his clear legal duty to follow the binding precedent
of Halbert on the question of waiver. Plaintiffs further submit that there is no other adequate
remedy available to them and the other unknown indigent defendants who have entered pleas
before Judge Kolenda. This complaint is the only viable remedy which can be pursued.
While theoretically each plaintiff, known and unknown, could file an application for
leave to appeal in this Court challenging one of Judge Kolenda’s orders denying counsel, this is
not an adequate remedy for the following reasons:
!
These plaintiffs, along with other indigent criminal defendants who have pled and
15
been advised by Judge Kolenda that, by pleading, they have waived their right to
appellate counsel, have no right to an automatic appeal to challenge the decision;
!
There is no way to identify all of those indigent defendants from whom Judge
Kolenda has extracted, and continues to extract, such constitutionally suspect
waivers;
!
Immediate action is required to protect the appellate rights of the named parties
and all of the unknown and unnamed parties.
Beyond the named plaintiffs here, there remains an uncertain number of indigent criminal
defendants who have already been informed by Judge Kolenda, or who continue to be so
informed, that they are waiving their right to appellate counsel by pleading guilty or nolo
contendere.3 Any available appeal may come too late to provide effective redress. In order to
prevent irreparable error and costly delays, Plaintiffs urge this Court to recognize that
superintending control is the only meaningful remedy to them and untold others.
C.
The Question of Halbert’s Retroactivity Is Not Involved In
This Complaint.
Finally, Judge Kolenda also addressed the question of the retroactivity of Halbert, not
only as to these four named Plaintiffs, but to the other seven criminal defendants covered by the
Opinion. While holding that Halbert “applies only to the cases of defendants Miklosovic,
Pumfrey, Brown and James” (Opinion p. 16), “it is not retroactive enough to apply to the others
because they were sentenced more than a year before Halbert was decided on June 23, 2005.”
3
Attached hereto as Exhibit C are eight separate orders denying appellate counsel. All of
these orders were issued by Judge Kolenda and all were issued based on the waiver portion (Part
B) of his September 27, 2005 Opinion.
16
(Opinion at p. 1).
Plaintiffs note that the question of the breadth of Halbert’s retroactivity is currently
before the Michigan Supreme Court in People v Houlihan, Supreme Court No. 128340, a case
also from Kent Circuit Court. Oral argument on the defendant’s application for leave to appeal
was conducted before the Court on November 8, 2005, and a final decision remains pending.4
Plaintiffs wish to emphasize that they only seek superintending control for: (1) those indigent
criminal defendants who are currently being advised by Judge Kolenda that, by pleading, they
are waiving their right to the appointment of appellate counsel; and (2) those other criminal
defendants, like Plaintiffs here, who can still file a direct appeal for whom Judge Kolenda is
refusing to appoint appellate counsel on the ground that they waived that right (i.e., those
defendants sentenced on or after June 23, 2004 – one year prior to the decision in Halbert).
4
On December 16, 2005, the Michigan Supreme Court issued an order holding Houlihan
in abeyance pending the decision of the Sixth Circuit Court of Appeals in Simmons v Mertish,
Sixth Circuit No. 03-2609. People v Houlihan, ___ Mich ___; ___ NW2d ___ (2005) WL
3446370 (2005).
17
RELIEF REQUESTED
WHEREFORE, Plaintiffs request that this Court intervene and order superintending
control directed to Judge Kolenda to do the following things which he has the clear legal duty to
do under the Supreme Court of the United States’ decision in Halbert:
1.
Order Judge Kolenda to grant the four named Plaintiffs their requests for the
appointment of appellate counsel;
1.
Order Judge Kolenda to cease and desist from advising indigent criminal
defendants who plead guilty or nolo contendere before him that, by pleading to
the charge, they are waiving their constitutional right to the appointment of
appellate counsel;
2.
Order Judge Kolenda to cease and desist denying defendants who plead guilty or
nolo contendere their constitutional right to appointed appellate counsel on the
ground that this right was waived during the plea-process.
4.
Order Judge Kolenda to identify each indigent defendant who has entered a plea
of guilty or nolo contendere before him since June 23, 2004, whom he has
erroneously advised with respect to waiver and re-instruct them correctly on the
basis of the Supreme Court’s decision in Halbert; and
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5.
Issue any other writs or orders as the Court deems appropriate based on
the facts as stated in the complaint for superintending control.
Respectfully submitted,
___________________________________
Terence R. Flanagan (P24650)
Cooperating Attorney, American Civil Liberties Union
Fund of Michigan
PO Box 413
Hartland, MI 48353
810-623-9633
____________________________________
Mark R. Granzotto (P31492)
Cooperating Attorney, American Civil Liberties Union
Fund of Michigan
414 West 5th St.
Royal Oak, MI 48067
248-546-4649
____________________________________
David A. Moran (P45353)
Cooperating Attorney, American Civil Liberties Union
Fund of Michigan
Wayne State University Law School
Detroit, MI 48202
313-577-3973
____________________________________
James E. Czarnecki, II (P67847)
Cooperating Attorney, American Civil Liberties Union
Fund of Michigan
PO Box 1467
Royal Oak, MI 48068
248-506-3792
____________________________________
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Michael J. Steinberg (P43085)
Kary L. Moss (P49759)
American Civil Liberties Union Fund of Michigan
60 West Hancock
Detroit, MI 48201
313-578-6814
Attorneys for Plaintiffs
DATED: January 11, 2006
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