John Tesmer was convicted of a home invasion charge after pleading guilty in Michigan state court. A Michigan statute prohibited the appointment of appellate counsel for defendants who pleaded guilty. Citing that particular statute, the trial judge John F. Kowalski denied Tesmer's request for an appointed appellate counsel. Tesmer, along with two other indigent criminal defendants and two attorneys who routinely represented indigent criminal defendants, filed a complaint stating that the Michigan statute violated the Fourteenth Amendment. The Supreme Court had previously recognized a litigant's standing to sue when the litigant suffered an actual injury, bears a close relation to the third party, and the third party in question has limited ability to protect his or her own interests. In this case, the Supreme Court granted certiorari to determine two issues: (1) Does the Fourteenth Amendment guarantee an automatic right to appointed appellate counsel for indigent criminal defendants convicted by a guilty plea? (2) Do attorneys who derive part of their income from representing indigent criminal defendants convicted by a guilty plea have third-party standing to challenge the constitutionality of a state statute which purportedly violates the due process rights of such defendants?
Questions as Framed for the Court by the Parties
1. Does the Fourteenth Amendment guarantee a right to an appointed attorney in a discretionary first appeal of an indigent criminal defendant convicted by a guilty plea?
Facts
In 1994, Michigan eliminated appeals of right for criminal defendants who plead guilty. See Mich. Const. 1963 art. I, § 20. In 1999, after John Tesmer pleaded guilty to the charge of home invasion, Judge John F. Kowalski sentenced Tesmer and denied Tesmer's request for appointed appellate counsel. Michigan statute P.A. 1999, No. 200 provides that "except as provided in subsections (2) and (3), a defendant who pleads guilty … shall not have appellate counsel appointed for review of the defendant's conviction or sentence." Subsections 2 and 3 of the statute provide limited exceptions if a defendant's sentence exceeds the sentence range under the applicable sentencing guidelines.
Tesmer alleged that P.A. 1999, No. 200 violated the constitutional guarantees of due process and equal protection and, together with two other indigent criminal defendants and two attorneys, Tesmer filed a 28 U.S.C. 1983 complaint in the Eastern District Michigan federal court, alleging that the statute violated the Due Process and Equal Protection Clause of the Fourteenth Amendment. The district court ruled that in light of his pending appeal in state court, Tesmer could not pursue a 1983 action in federal court as per the Abstention Doctrine described in Younger v. Harris, 401 U.S. 37 (1971) (the "Younger Abstention Doctrine"), which states that a federal court should not interfere with "currently pending state criminal proceedings absent a showing of extraordinary circumstances." The court also held that despite the Younger Abstention Doctrine, plaintiffs Alois Schnell and Charles Carter could pursue the 1983 action in federal court. Finally, the court held that plaintiff attorneys Arthur M. Fitergeral and Michael D. Vogler had third-party standing to challenge the constitutionality of the Act, and thatthe Act violated the Fourteenth Amendment. Tesmer v. Granholm, 114 F.Supp.2d 603 (2000); Younger, 401 U.S. at 43-45. The court considered three factors to determine if Younger abstention applied: "(1) whether a state proceeding is pending at the time the federal action is initiated; (2) whether an adequate opportunity is provided to raise the constitutional claims in the state proceeding; and (3) whether there are extraordinary circumstances which nevertheless warrant federal intervention." Tesmer, 114 F.Supp.2d at 612 (citing Zalman v. Armstrong, 802 F.2d 199, 202 (6th Cir. 1986)).
On appeal, a three-judge panel of the Sixth Circuit Court of Appeals reversed the district court and ruled that the Younger abstention applied to all three indigent's claims, that the criminal defense attorneys had standing to appeal based upon their rights as a third party under the doctrine of jus tertii and that the statute was constitutional. Tesmer v. Kowalski, 295 F.3d 536 (6th Cir. 2002). The doctrine of jus tertii states that "a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties," but that litigants may bring actions on behalf of third parties if the litigant has suffered an injury in fact, bears a close relation to the third parties, and the third parties are somehow hindered in their ability to protect their own interests. Tesmer v. Granholm, 114 F.Supp.2d 603 at 608 (citing Powers v. Ohio, 499 U.S. 400, 410-411 (1991)).
The defendants appealed and the Sixth Circuit reheard the appeal en banc. The Sixth Circuit affirmed the panel's findings concerning the application of the Younger Abstention Doctrine to all three of the indigent appellants and the third-party standing of the criminal defense attorneys, but reversed the panel's finding concerning P.A. 1999, No. 200, holding that the statute violated the due process clause of the Fourteenth Amendment. Tesmer v. Kowalski, 333 F.3d 683 (6th Cir. 2003); Younger, 401 U.S. at 43-45.
The Supreme Court granted certiorari to determine two questions: 1) Does the Due Process Clause guarantee a right to appointed counsel in an indigent criminal defendant's discretionary first appeal following a plea-based conviction? (2) Does an attorney have third-party standing, on behalf of potential future indigent criminal defendants, to make a constitutional challenge to a state statute prohibiting appointment of appellate counsel following plea-based convictions where the federal courts properly abstained from hearing the claims of indigent criminal defendant themselves?
Analysis
As a threshold matter, the issue of whether attorneys have third-party standing on behalf of future, indigent criminal defendants to challenge the state statute in question is important because if the Supreme Court reverses the Sixth Circuit, the Court will not rule on the Fourteenth Amendment issue. The Court will not issue an advisory opinion extolling the limits of the Fourteenth Amendment. There must be a "case or controversy" brought by a plaintiff with standing before the Court will rule on the merits of the case. U.S. CONST. art. III, § 2. However, if the Court affirms the Sixth Circuit decision, its holding could expand access to U.S. courts for attorneys bringing claims on behalf of third parties, who for procedural or economic reasons cannot assert their own interests.
The District Court, the three-judge panel of the Sixth Circuit, and the Sixth Circuit en banc all agree that, pursuant to the doctrine of jus tertii, or third-party standing, (See Tesmer v. Granholm, 333 F.3d 683, 691) attorneys who earn a portion of their income representing indigent clients after plea-based convictions have standing to challenge the constitutionality of the Michigan statute which denies appellate counsel. See Tesmer v. Granholm, 114 F.Supp.2d at 608; Tesmer v. Kowalski, 295 F.3d at 539; Tesmer v. Kowalski, 333 F.3d at 691.
The rationale behind their common holding that attorneys have standing pursuant to the jus tertii doctrine is not in dispute. Ordinarily, a litigant must assert his or her own legal rights; however, the Supreme Court recognizes the right of a litigant to sue on behalf of a third party when the litigant has suffered an actual injury, the litigant has a close relation to the third party, and there is a hindrance to the third party's ability to protect his or her own interests. See Powers v. Ohio, 499 U.S. 400, 410-411 (1991) (finding a criminal defendant has standing to raise a third-party equal protection claim on behalf of jurors excluded because of their race); Singleton v. Wuff, 428 U.S. 106, 118 (1976) (finding a doctor has standing on behalf of potential patients to challenge a statute that prohibited Medicaid funding for abortions).
Applying the jus tertii standard from Powers to the facts in this case, the Sixth Circuit sitting en banc found that the attorneys stood to lose income if the challenged decision remained in force, and this loss of income constituted an actual injury. See Tesmer, 333 F.3d at 691. The three-judge Sixth Circuit panel found that the attorneys maintained a sufficiently close relationship to the indigent criminal defendants because both parties sought to nullify the Michigan statute and thus satisfied the second element of the jus tertii doctrine. See Tesmer, 295 F.3d at 545. Finally, the District Court, relying upon Singleton, found that the criminal defendants could not adequately protect their own interests without assistance: "just as a woman cannot safely secure an abortion without a physician, indigent defendants need counsel to effectively present their appellate claims." Tesmer, 114 F.Supp.2d at 610.
HOW THE COURT WILL MOST LIKELY RULE
Considering that the three lower courts, applying the standard set out by the Supreme Court in Powers and Singleton, all reached the same conclusion that the attorneys have standing to challenge the constitutionality of the Michigan statute P.A. 1999, No. 200, it is highly unlikely that the Supreme Court will reach the opposite conclusion. The paramount dispute in this case concerns whether the Fourteenth Amendment guarantees a right to an appointed counsel in these circumstances, not third party standing.
The Supreme Court's decision as to whether the Act in question violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment w will depend on how the Court synthesizes several issues that have previously only been addressed individually. For example, the Court in Douglas v. People of the State of Cal., 372 U.S. 353 (1963) held that the denial of counsel on an appeal of right to an indigent defendant amounted to invidious discrimination, and was thus was unconstitutional. Yet in Ross v. Moffitt, 417 U.S. 600 (1974), the Court ruled that North Carolina was not required to appoint counsel to an indigent defendant for a discretionary intermediate appeal. The Court held that, since the indigent's claims had already once been prepared by counsel during the first appeal, subsequent courts would have an adequate basis upon which to pass on the merits of the case. Id. at 614-615. Further, while the indigent defendant may be at a disadvantage as compared to a defendant who can afford counsel, the Court ruled that he is not so disadvantaged as to make the denial of counsel unconstitutional. Id. at 616. The Court in Ross also noted that just because a state grants a defendant a discretionary appeal does not mean that the state must then appoint counsel to that defendant if he cannot afford it. Id. at 610-612. Inequality results only if indigents are denied access to the appellate courts because of their poverty. Id.
The Supreme Court, in passing on the constitutionality of the Act in the instant case, will likely focus on whether indigent defendants may be systematically denied a meaningful trial within the appellate system by virtue of the fact that they are not automatically appointed legal counsel. If the Court finds this to be a great danger, it will probably find the Act unconstitutional. If, on the other hand, in the vein of the Ross decision, the Court places great weight on the fact that the appeal is one of discretion, then it may uphold the Act.
Kristin Tribbensee
Rochelle Smith
Torello Calvani
Jing Lin