Kowalski, John, Judge, 26th Judicial Circuit Court of Michigan, et al. v. Tesmer, John, et al. (12/13/2004)

Questions presented:(1) Does the 14th Amendment guarantee an indigent criminal defendant convicted by a guilty plea the right to an appointed appellate attorney in a discretionary first appeal? (2) Do attorneys have third-party standing on behalf of potential future indigent defendants to make a constitutional challenge to a state statute prohibiting appointment of appellate counsel in discretionary first appeals following convictions by guilty pleas where the federal courts properly abstained from hearing the claims of the defendants themselves?

BY BETH PALMER, MEDILL NEWS SERVICE

In 1994, Michigan voters passed an amendment that took away an appeal of right from defendants who plead guilty, guilty but mentally ill or nolo contendre to a crime. Under the new amendment, these defendants could appeal only by filing a petition to the Michigan Court of Appeals.

Once the amendment passed, several state judges began denying appointed appellate counsel to impoverished defendants who plead guilty, a practice that was later codified by the state legislature, along with a few exceptions, such as cases in which the prosecution seeks appeal or the sentence exceeds the upper end of the guidelines range.

On March 20, 2000, action was brought in the Eastern District of Michigan by three poor defendants John Clifford Tesmer, Charles Carter and Alois Schnell who were denied appointed appellate counsel, alleging the practice violated the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution. The group of plaintiffs also included two attorneys Arthur M. Fitzgerald and Michael D. Vogler who accept appointments in criminal proceedings. The attorney-plaintiffs say the statute violates their rights by denying them the opportunity to represent indigents in seeking leave to appeal. The defendants were three Michigan circuit court judges John F. Kowalski, William A. Crane and Lynda L. Heathscott.

The attorney-plaintiffs were granted third-party standing by the district court. After determining it should not hear Tesmers claims because of a pending state court action he was involved in that provided him adequate opportunity to raise constitutional challenges, the court declared the challenged statute and practice unconstitutional.

In April 2000, the judges appealed, but a panel of the 6th Circuit Court of Appeals dismissed the appeal July 13 because the judges had mistakenly based it upon issuance of a final decree, which the court ruled was not actually a final judgment ripe for appeal.

Meanwhile, on May 9, Heathscott and a non-party judge, Dennis Kolenda, refused to appoint appellate counsel for non-party indigents, and the plaintiffs sought injunctive relief against those two judicial defendants and for the court to declare a class of judges. The district court entered an injunction against Heathscott and Kolenda, preventing them from denying appointed counsel. The court denied certification of a class of judge-defendants, but expanded the injunction by declaring that the earlier ruling on the statutes unconstitutionality bound all Michigan state judges to the injunction.

The defendants the three named judges and Kolenda appealed after the injunction was issued, and this time a panel of the 6th Circuit heard the appeal. The defendants argued that the district court should have abstained from making a judgment because ongoing proceedings in Michigan state courts gave the indigent plaintiffs adequate opportunity to bring their constitutional claims. They also urged the court to hold that the attorney-plaintiffs did not have third-party standing.

The panel held that the attorneys did have third-party standing, but disagreed with the district court in saying that abstention barred review of any of the named indigents claims, not just Tesmers, and that the denial of appointed appellate counsel did not violate the Constitution.

The court then granted rehearing en banc. A majority of judges held that the attorney-plaintiffs did have third-party standing, in part because they stand to lose income if the statute remains in place. It differed from the district court, however, in determining that none of the indigents claims could be heard under abstention principles. The difference arose over the 6th Circuit finding that abstention is allowed if a litigant has abandoned pursuit of state court relief, which it said applied to Schnell.

In regard to Carter, the 6th Circuit determined that if Tesmer had adequate opportunity to present his federal claims in state court, as the district court had ruled, Carter could also present his claim because he too was party to a proceeding in state court. The district court had ruled Carter did not have adequate opportunity to present a constitutional claim because he had no attorney and no knowledge of the law, a line of thought that hadnt applied to Tesmer because he had filed a "lawyerly brief" seeking a delayed application for leave to appeal. But the 6th Circuit ruled whether Carter had the legal sophistication to do so or not did not address the abstention issue, but instead the merits of the constitutional claim.

Thus, it concluded that with regard to each of the plaintiffs, abstention was warranted, but stressed that its finding does not foreclose any appeal by the indigents because once state proceedings are done, litigants can choose to pursue constitutional claims in a federal forum.

The full 6th Circuit also deemed the statute and practice unconstitutional because they "create unequal access even to the first part of the appellate system," essentially creating different opportunities for access to justice based upon the financial status of defendants.

Despite that decree, the 6th Circuit held that the injunction was improper with respect to Kolenda and all non-party Michigan state judges. The courts chief concern with the injunction was that its scope included non-party judicial officers, which it deemed "broader than necessary to remedy the harm at issue" because an action as drastic as enjoining a judge was something "reserved for really extraordinary causes." The court allowed that engaging in unconstitutional practices may warrant injunctive relief, but agreed with a district court comment that "the overwhelming majority of judges do abide by federal court orders that are designed to enforce the United States Constitution," and that usually happens without further compulsion.

Unlike the district court, however, the 6th Circuit concluded that "failure of a judge unnamed in a declaratory decree to abide by such declaration does not allow a district court to throw caution to the wind and summarily bind all judges." Thus, the court called it "abuse of discretion" on the part of the district court, and reversed the issuance of the injunction against Kolenda and all non-party Michigan judges.

In a dissent, Judge Alan Norris argued that the statue is constitutional because, in his mind, the protections it provides are sufficient to ensure meaningful access to the appellate system for even the poorest defendants. Norris maintained that the statute "carves out significant exceptions to the denial of counsel to indigent defendants who have pleaded guilty." He claimed these exceptions occur when a defendant has the most at stake, when a sentence falls above the sentencing range or when a conditional plea has been entered. He also noted that the statue allows trial courts to use their discretion to appoint counsel if contention arises over the manner in which a sentence has been calculated.

In defending his position, Norris pointed to a 1963 Supreme Court decision that declined a request to extend the right to appointment of counsel for an appeal as of right to the preparation of petitions to appeal to either the U.S, Supreme Court or to North Carolinas highest court. That decision was based on the fact that defendants, not the state, generally initiate the appellate process, and thus an attorney is needed not as "a shield to protect [a defendant] against being haled into court by the state and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt."

That being the case, the court opined that the state "need not provide any appeal at all. The fact that an appeal has been provided does not automatically mean that a state then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. Unfairness results only if indigents are singled out by the state and denied meaningful access to the appellate system because of their poverty." Essentially, so long as the state appellate system is "free of unreasoned distinctions," the 14th Amendment is satisfied.

On Jan. 20, 2003, the U.S. Supreme Court accepted review in the case.

On Dec. 13, 2004, the Court reversed, holding 6-3 that attorneys in Michigan lack standing to challenge the state's law limiting appeals for criminal defendants who pled guilty.

In writing the Court's lead opinion, Chief Justice William Rehnquist stressed that the attorneys bringing the action are only hypothetical counsel for future indigent defendants, and do not have the requisite third-party standing to maintain such an action.

Justice Clarence Thomas added a three-paragraph concurrence in which he criticized recent Court opinions that "have gone far astray" by allowing third-party standing suits to claim personal constitutional rights for others.

Justices Ruth Bader Ginsburg, John Paul Stevens and David Souter dissented, arguing that the Court should be more elastic with its principles of third-party standing and that indigent defendants generally are unable to navigate the appellate process. "In sum, this case presents an unusual if not unique case of defendants facing near-insurmountable practical obstacles to protecting the rights in the state forum," wrote Ginsburg for the dissenters.