Board OKs entering potential indigent defense lawsuit

MARQUETTE — Counties across Michigan have been preparing to receive funding that will help them meet new state-mandated requirements for indigent defense, but the amount of money being offered by the state is far less than what’s needed.

The grant contracts local units recently received from the Michigan Indigent Defense Commission only include an initial 20 percent of the funding that was expected and mandated by statute.

Due to this, the Marquette County Board of Commissioners on Tuesday unanimously approved joining potential litigation with the Michigan Association of Counties, or MAC, over the state’s funding of indigent defense, a program that provides legal counsel to individuals who can’t afford to hire an attorney.

The litigation stems from the Michigan Indigent Defense Commission’s approval of a grant contract that the MAC “considers contrary to state statute (regarding funding of indigent defense) and the intent of the law as counties have understood it for years,” a letter from MAC Executive Director Stephan W. Currie states.

The grant contract is contrary to law because provisions would provide counties with 20 percent of their MIDC-approved indigent defense plan costs as an initial payment instead of the full payment mandated by state statute, the letter states.

After the initial 20 percent payment, counties would be required to “submit data, their financial status reports and documentation of expenditures on a quarterly basis in order to receive reimbursements thereafter,” according to Currie’s letter.

“The MIDC is asking funding units to sign this contract now, even though we are not in agreement with the terms,” Currie wrote. “They subsequently plan to send out checks on Oct. 15, 2018, with the 20 percent payment and expect the compliance clock to begin.”

Currie noted that the 180-day compliance window should start only when complete grant funding is provided from the state, per statute.

Marquette County Board Chairman Gerald Corkin said that if the MIDC and MAC are unable to meet a resolution on the matter at an upcoming meeting, “they want us to be one of the counties that sign on to take a legal position” regarding the issue, noting that the state “should be following the law like we have to.”

A major part of the issue, Marquette County Administrator Scott Erbisch said, is that some local units may not be able to handle the remaining burden of funding upfront.

This is because complying with the requirements, which seek to improve the quality of indigent defense in Michigan due to a 2007 lawsuit against the state, can be quite costly.

In the case of Marquette County, which is currently in the process of developing a public defender’s office to meet the new requirements, the state’s contribution was to be roughly $631,000 of the nearly $900,000 needed for the first fiscal year of operations.

While no financial commitments have yet been made, the county has been planning and preparing for the distribution of funds in October.

However, per Public Act 93 of 2013, local units are not required to comply with the requirements unless the state fulfills its obligation to provide funding for indigent defense, officials said.

“The law clearly states a funding unit’s ‘duty of compliance … is contingent upon receipt of a grant in the amount contained in the plan and cost analysis approved by the MIDC,'” the letter states.

Commissioners asked what would happen to Marquette County’s plans for a public defender’s office if the MAC and the MIDC are unable to reach a resolution at the upcoming meeting.

Erbisch replied “there wouldn’t be any implementation for the time being until there’s a resolution on this specific issue,” noting that they need to hold the “state accountable to the statute, as we are being held to it as well.”

While the meeting between officials from MIDC and MAC was initially slated for Wednesday, Erbisch said Thursday that the meeting has been rescheduled for this week.

Cecilia Brown can be reached at 906-228-2500, ext. 248. Her email address is