[ Previous Page]  [ Home Page ]

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6128

February 23, 1983

CONSTITUTIONAL LAW:

Const 1963, art 9, Sec. 29--imposing a new duty upon local governmental units

MENTAL HEALTH:

Obligation of appointed legal counsel to consult with person

1974 PA 258, Sec. 454(7), as added by 1982 PA 178, requiring appointed legal counsel to consult with a person who is the subject of a petition at least 24 hours before the time set for court hearing and requiring the filing of a certificate with the court, does not impose a new activity or service beyond consultation and effective assistance of counsel required by existing law as provided in Const 1963, art 9, Sec. 29.

Honorable Carl F. Gnodtke

State Representative

The Capitol

Lansing, MI

Honorable Don Gilmer

State Representative

The Capitol

Lansing, MI

Honorable Paul Hillegonds

State Representative

The Capitol

Lansing, MI

Honorable Lad Stacey

State Representative

The Capitol

Lansing, MI

You have requested my opinion whether 1982 PA 178 is unconstitutional as violative of Const 1963, art 8, Sec. 29.

1982 PA 178, inter alia, amended the Mental Health Code, 1974, PA 258, Sec. 454; MCLA 330.1454; MSA 14.800(454) by making stylistic changes and by adding thereto subsection (7), providing as follows:

'Legal counsel shall consult in person with the subject of a petition at least 24 hours before the time set for a court hearing. After the consultation, counsel promptly shall file with the court a certificate stating that he or she personally has seen and has consulted with the subject of a petition as required by this subsection.'

Prior to enactment of amendatory 1982 PA 178, 1974 PA 258, Sec. 454, supra, in pertinent part provided:

'(1) Every individual who is the subject of a petition is entitled to be represented by legal counsel.

'(2) Unless an appearance has been entered on behalf of the subject of a petition, the court shall, within 48 hours of its receipt of any petition together with the other documents required by section 452, appoint counsel to represent the subject of the petition, except that if an individual has been hospitalized pursuant to section 423 or 438, counsel shall be appointed within 24 hours of such hospitalization.

'(3) If, after consultation with counsel, the subject of a petition desires to waive his right to counsel, he may do so by notifying the court in writing.' (Emphasis added.)

Const 1963, art 9, Sec. 29 provides:

'A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs.'

Your question then is:

'Does 1974 PA 258, Sec. 454, subsection (7), supra, as added by 1982 PA 178, require a new activity or service of units of local government?'

One answer to your question is that 1982 PA 178 does not require a new activity or service of local government because the Act's mandate is directed to court-appointed counsel for the subject of a petition and is not directed to a unit of local government.

However, in your opinion request you state, 'Since the costs for appointed attorneys are paid by the respective counties, the act served to increase county costs without an accompanying appropriation to pay these increased costs.' Accordingly, I will address the question of whether the Act requires a new activity or service.

From the outset, the Mental Health Code, 1974 PA 258, Sec. 454, supra, has required that the subject of a petition have the representation of legal counsel unless the subject of the petition expressly waives his right to legal counsel. This provision was mandated by the decision in Bell v Wayne County General Hospital at Elouise, 384 F Supp 1085, 1093 (ED Mich, 1974) (3-judge court), where it was held 'that a respondent has the right to legal counsel and, if indigent, to appointed counsel, to assist him in every step of the commitment proceedings; and further that he must be notified of this right at the outset of the proceedings.' See also, OAG, 1979-1980, No 5653, p 612, 613 (February 14, 1980).

While there are no Michigan appellate cases in point, it is self evident that the entitlement of legal counsel means the entitlement to the effective assistance of legal counsel, and it may not be gainsaid that in the enactment of 1974 PA 258, Sec. 454, supra, the Legislature intended otherwise. In determining the standards for the effective assistance of counsel, it is permissible to borrow from the criminal law since an involuntary commitment to a mental health institution occasions a 'massive curtailment of liberty'. Humphrey v Cady, 405 US 504, 509; 92 S Ct 1048, 1052; 31 L Ed 2d 394, 402 (1972).

In People v Lewis, 64 Mich App 175, 183; 235 NW2d 100 (1975), lv den 395 Mich 810 (1975), the court said:

'The requirement of Beasley, (1) supra, that defense counsel investigate potential defenses and assert them is a duty that numerous jurisdictions recognize. The rationale of these cases is irrefutable. The importance of defense counsel's pretrial investigation and preparation cannot be over-emphasized. The court in Moore v United States, 432 F2d 730 (CA 3, 1970), effectively enunciated the policy behind the requirements of adequate preparation and investigation:

"Adequate preparation for trial often may be a more important element in the effective assistance of counsel to which a defendant is entitled than the forensic skill exhibited in the courtroom. (Moore, supra, at 735.)

"The exercise of the utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance. . . .' (Id., at 739)' (footnote omitted.)

From the above, it is clear that in adding subsection (7) to 1974 PA 258, sec 454, supra, the Legislature did not require a 'new activity or service beyond that required by existing law.' Section 454 has always required consultation and effective assistance of counsel. In adding subsection (7), the Legislature established a minimal standard for the rendition of the services already required by law to the subject of the petition.

It is my opinion, therefore, that 1982 PA 178 does not violate Const 1963, art 9, Sec. 29.

Frank J. Kelley

Attorney General

(1) Beasley v United States, 491 F2d 687 (CA 6 1974).

 


[ Previous Page]  [ Home Page ]