RECEIVED by Michigan Court of Appeals 7/25/2012 1:45:39 PM

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1 CHRISTOPHER LEE DUNCAN, et al., STATE OF MICHIGAN IN THE COURT OF APPEALS v. Plaintiffs-Appellees, Court of Appeals No STATE OF MICHIGAN, et al., L.C. Case No CZ Defendants-Appellants. / Michael J. Steinberg (P43085) Kary L. Moss (P49759) Mark P. Fancher (P56223) American Civil Liberties Union Fund of Michigan Attorneys for Plaintiffs 2966 Woodard Avenue Detroit, MI (313) Julie A. North Sarita Prabhu Yelena Konanova Justine V. Beyda Greg Cheyne Cravath, Swaine & Moore, LLP Attorneys for Plaintiffs Worldwide Plaza 825 Eighth Avenue New York, NY (212) APPELLEES BRIEF ON APPEAL / Frank D. Eaman (P13070) Attorney for Plaintiffs 645 Griswold Street Detroit, MI (313) Mark R. Granzotto (P31492) Cooperating Attorney, American Civil Liberties Union Fund of Michigan Mark Granzotto, PC Attorney for Plaintiff 225 South Troy Street, Suite 120 Royal Oak, MI (248) Elora Mukherjee Sarah Hinger American Civil Liberties Union Attorney for Plaintiffs 125 Broad Street, 18th Floor New York, NY (212)

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... iii COUNTER-STATEMENT OF QUESTIONS INVOLVED... vi INTRODUCTION AND SUMMARY OF ARGUMENT...1 STATEMENT OF FACTS...2 I. Plaintiffs Claims Against Defendants...2 II. Procedural History of the Motions for Summary Disposition...3 ARGUMENT...6 I. Defendants Class Certification Arguments Are Premature and Should Be Rejected...6 II. A. Standard of Review...6 B. Analysis...6 The Law of the Case Precludes Defendants from Arguing That Plaintiffs Lacked Standing and Failed to State a Cause of Action...10 A. Standard of Review...10 B. The Issues of Plaintiffs Standing and the Sufficiency of the Complaint Have Already Been Decided in Plaintiffs Favor, and Defendants Are Precluded from Raising Them Again at This Time...11 C. Plaintiffs Standing Is Not Affected by Michigan s New Test for Standing...13 III. The Doctrine of Res Judicata Does Not Bar Plaintiffs Claims...16 A. Standard of Review...16 B. Analysis...16 IV. Defendants Judicial Estoppel Argument Is Frivolous...19 A. Standard of Review...19 B. Analysis...19 V. Defendants Improper and Irrelevant Exhibits Attached to Their Brief on Appeal Should Not Be Considered By This Court...21 i

3 A. Defendants Exhibits Are Not Judicially Noticeable...22 B. Defendants Exhibits Are Irrelevant...24 CONCLUSION...26 ii

4 INDEX OF AUTHORITIES Cases Page(s) Adair v State of Michigan, 470 Mich 105; 680 NW2d 386 (2004)...16, 18 Allen v Keating, 205 Mich App 560; 517 NW2d 830 (1994)...19, 20 Bennett v Bennett, 197 Mich App 497; 496 NW2d 353 (1992)...14 Best v Grant County, No (Sup Ct of Wash Kittitas Co, August 26, 2004)...9 Bittinger v Tecumseh Products Co, 123 F3d 877 (CA 6, 1997)...8, 9 Colista v Thomas, 241 Mich App 529; 616 NW2d 249 (2000)...11 Dart v Dart, 460 Mich 573; 597 NW2d 82 (1999)...16 Duncan v Michigan, 284 Mich App 246; 774 NW2d 89 (2009)...4, 11, 20 Duncan v Michigan, 486 Mich 906; 780 NW2d 843 (2010)...4, 8, 11 Freeman v DEC Int l, Inc, 212 Mich App 34; 536 NW2d 815 (1995)...14 Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963)...18 Grievance Adm r v Lopatin, 462 Mich 235; 612 NW2d 120 (2000)...10, 12 Henry v Dow Chem Co, 484 Mich 483; 772 NW2d 301 (2009)...4, 6, 8, 9 Hill v City of Warren, 276 Mich App 299; 740 NW2d 706 (2007)...6, 7 Hurrell-Harring v New York, 15 NY3D 8; 930 NE2d 217 (2010)...18, 25 Hurrell-Harring v State of New York, 81 AD3d 69; 914 NYS 2d 367 (NY App 3d Dep t, 2011)...9 Lake Shore & MSRR Co v Miller, 25 Mich 274 (1872)...22 Lansing Schools Ed Ass n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010)...5, 13, 14 Lee v Macomb Co Bd of Comm rs, 464 Mich 726; 629 NW2d 900 (2001)...15 Locricchio v Evening News Ass n, 438 Mich 84; 476 NW2d 112 (1991)...10 Luckey v Harris, 860 F2d 1012 (CA 11, 1988)...25 iii

5 Lujan v Defenders of Wildlife, 504 US 555; 112 S Ct 2130; 119 L Ed 351 (1992)...15 Maiden v Rozwood, 461 Mich 109; 597 NW2d 817 (1999)...11, 20 Manuel v Gill, 481 Mich 637; 753 NW2d 48 (2008)...11 Nat l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608; 684 NW2d 800 (2004)...15 People v Burt, 89 Mich App 293; 279 NW2d 299 (1979)...22 People v Goecke, 457 Mich 442; 579 NW2d 868 (1998)...22 People v Smith, 28 Mich App 656; 185 NW2d 185 (1970)...23 Pierson Sand and Gravel, Inc v Keeler Brass Co, 460 Mich 372; 596 NW2d 153 (1999)...16 Roberts v Mecosta Co Gen Hosp, 470 Mich 679; 684 NW2d 711 (2009)...13 Rodriguez v Gen Motors Corp, 204 Mich App 509; 516 NW2d 105 (1994)...12 Rouse v Caruso, No 06-CV-10961, 2011 WL (ED Mich Mar 14, 2011)...7, 9 Schumacher v Dep t of Natural Resources, 275 Mich App 121; 737 NW2d 782 (2007)...12 Sewell v Clean Cut Mgt, Inc, 463 Mich 569; 621 NW2d 222 (2001)...17 Sinicropi v Mazurek, 279 Mich App 455; 760 NW2d 520 (2008)...13 Strickland v Washington, 466 US 668; 104 S Ct 2052 (1984)...25 Szyszlo v Akowitz, 296 Mich App 40; NW2d (2012)...19 Taylor v Procter & Gamble Co, 178 F3d 1296 (CA 6, 1999)...23 United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984)...18 Wilbur v City of Mount Vernon, No C , 2012 WL (WD Wash, Feb 23, 2012)...9, 25 Willmore v Hertz Corp, 322 F Supp 444 (WD Mich, 1969) aff d, 437 F2d 357 (CA 6, 1971)...22 Winekoff v Pospisil, 384 Mich 260; 181 NW2d 897 (1970)...22, 23, 24, 25 Zine v Chrysler Corp, 236 Mich App 261; 600 NW2d 384 (1999)...6, 8, 9 iv

6 Statutes & Rules Fed R Civ P MCR 2.116(I)(5)...13 MCR 2.116(C)(4)...12, 20 MCR 2.116(C)(7)...16, 20 MCR 2.116(C)(8)... passim MCR , 15 MCR MCR 3.501(a)(1)...9 MCR 3.501(a)(2)...9 MCR 3.501(B)(1)...6 MRE 201(b)...22, 23, 24 MRE 201(c)...22 MRE 801(c)...22 MRE MRE v

7 COUNTER-STATEMENT OF QUESTIONS INVOLVED I. WAS IT PREMATURE TO RECONSIDER THE ISSUE OF CLASS CERTIFICATION IN LIGHT OF HENRY V DOW, BEFORE DISCOVERY WAS COMPLETE, ON THE GROUNDS THAT DISCOVERY WAS NECESSARY TO MAKE THE SHOWING HENRY REQUIRES AND WHERE PLAINTIFFS HAD NOT YET FILED A RENEWED MOTION FOR CLASS CERTIFICATION? Trial Court s answer: Yes Plaintiffs answer: Yes Defendants answer: No II. III. IV. DOES THE LAW OF THE CASE PRECLUDE DEFENDANTS MCR 2.116(C)(8) ARGUMENTS FOR SUMMARY DISPOSITION WHICH HAVE ALREADY BEEN REJECTED BY THE TRIAL COURT, THE COURT OF APPEALS AND THE SUPREME COURT OF MICHIGAN? Trial Court s answer: Yes Plaintiffs answer: Yes Defendants answer: No IS THE DOCTRINE OF RES JUDICATA INAPPLICABLE TO BAR PLAINTIFFS CLAIMS WHERE NONE OF THE ELEMENTS OF THE DOCTRINE HAS BEEN MET? Trial Court s answer: Yes Plaintiffs answer: Yes Defendants answer: No IS DEFENDANTS JUDICIAL ESTOPPEL ARGUMENT FRIVOLOUS? Trial Court s answer: Yes Plaintiffs answer: Yes Defendants answer: No vi

8 V. SHOULD THIS COURT CONSIDER DEFENDANTS IMPROPER AND IRRELEVANT EXHIBITS ATTACHED TO THEIR BRIEF? The exhibits were never presented to the Trial Court. Plaintiffs answer: No Defendants answer: Yes vii

9 INTRODUCTION AND SUMMARY OF ARGUMENT More than five years have passed since plaintiffs filed a complaint on behalf of themselves and a class of indigent defendants in Berrien, Genesee, and Muskegon counties who have been or will be irreparably harmed by the systematic deficiencies of Michigan s public defense system. Plaintiffs filed this suit on behalf of a class of Michigan residents who cannot afford private criminal defense counsel and, therefore, rely on the State of Michigan to fulfill its constitutional mandate to provide them with constitutionally adequate defense counsel. These Michigan residents are routinely denied adequate defense counsel because the defendants in this case have abdicated their constitutional responsibilities despite knowledge of the public defense system s failings. Five years ago, defendants failed in their first attempt to get this case dismissed outright and then filed appeal after unsuccessful appeal, losing at every stage. In the meantime, thousands more indigent defendants have been denied adequate representation and are placed at risk of wrongful conviction, unjust sentencing, or worse. The Michigan Supreme Court specifically upheld the trial court s denial of defendants motion for summary disposition and remanded the case to the trial court for consideration of class certification. Before the trial court could reach the class certification issue on remand, defendants re-filed their motion for summary disposition. The re-filed motion for summary disposition was essentially a rehash of the motion defendants filed and lost in The trial court properly denied the re-filed motion at a hearing on December 9, 2011 and entered its order denying that motion the following week. Defendants then sought leave for the pending appeal, which was granted. Defendants arguments in their re-filed motion for summary disposition are again without merit. First, given that the trial court has not yet considered class recertification, Error! Unknown document property name.

10 pending discovery, any argument that plaintiffs have not met the criteria for class certification in the trial court is premature. Second, the law of the case precludes reconsideration of defendants arguments that plaintiffs lacked standing and failed to state a claim. The Michigan Supreme Court has already upheld the ruling of the trial court, affirmed by the court of appeals, that plaintiffs have standing, and recent developments in Michigan standing law strengthen rather than undermine plaintiffs standing to bring this action. The Michigan Supreme Court has also ruled that, at this stage of the litigation, it is premature to decide whether plaintiffs have stated a claim for relief. Defendants re-argument that plaintiffs have failed to state a claim for relief is precluded by the law of the case as well. Third, res judicata based on the dispositions of plaintiffs criminal cases cannot and does not bar plaintiffs claims in this civil case. Fourth, defendants judicial estoppel arguments are completely baseless. Fifth, neither the doctrine of judicial notice nor any other doctrine permits this court to consider the two exhibits that defendants attached to their appellate briefing, which were not part of the trial court record and were created after the trial court ruled on defendants motion for summary disposition. Even if this court could consider these exhibits, they are inadmissible hearsay, irrelevant, self-serving, and do not provide any basis for a ruling in defendants favor. For the reasons stated above, the trial court s order denying defendants latest motion for summary disposition should be affirmed. STATEMENT OF FACTS I. Plaintiffs Claims Against Defendants This lawsuit was filed more than five years ago to ensure that indigent defendants in Michigan are afforded their right to counsel, as guaranteed under the constitutions of 2

11 the United States and the State of Michigan. As alleged in the complaint, the State of Michigan has effectively abdicated responsibility for providing constitutionally adequate legal services to indigent criminal defendants by delegating that responsibility to its counties without adequate oversight or financial support. The three counties whose public defense systems are at issue in the complaint Berrien, Genesee, and Muskegon do not provide constitutionally adequate representation to indigent criminal defendants, as alleged in the complaint. Plaintiffs sought declaratory and injunctive relief on behalf of all indigent adults who have been or will be charged with felonies in the district and circuit courts of Berrien, Genesee, and Muskegon counties and who will rely on state-provided counsel for their defense. As the complaint alleges, defendants have long been aware, through numerous reports and assessments of public defense in Michigan, that the existing system of public defense in Michigan is inadequate. Defendants have failed to undertake reforms to ensure that indigent defendants in Berrien, Genesee, and Muskegon County are not deprived of their constitutional rights. The record below is devoid of anything defendants have done to improve public defense in Berrien, Genesee, and Muskegon Counties in the five years since this case was filed. As discussed below, defendants have repeatedly sought to have this case dismissed on a number of grounds, and sought stays so that discovery could not proceed. II. Procedural History of the Motions for Summary Disposition As defendants correctly noted, the trial court denied defendants first motion for summary disposition on May 15, 2007, rejecting the same arguments that plaintiffs lack standing and have failed to state a claim upon which relief may be granted that defendants made again in the motion denied on December 9, (Summ Disposition 3

12 and Class Certification Hr g Tr 33-35, May 15, 2007 (attached as Ex A hereto)) Defendants appealed the first denial to this court, again raising Plaintiffs standing and failure to state a claim. (Appellants Br on First Appeal 3-25 May 30, 2008 (attached as Ex B hereto).) In a lengthy opinion, this court affirmed the trial court s decision denying summary disposition. Duncan v Michigan, 284 Mich App 246; 774 NW2d 89 (2009). Defendants then appealed to the Michigan Supreme Court. On April 30, 2010, the Michigan Supreme Court affirmed the denial of summary disposition, vacated the order granting class certification based on a new class certification decision, Henry v Dow Chem Co, 484 Mich 483; 772 NW2d 301 (2009), and remanded this case to the trial court for consideration of plaintiffs motion for class certification in light of Henry. Duncan v Michigan, 486 Mich 906; 780 NW2d 843 (2010). The Michigan Supreme Court affirmed the result only of the court of appeals decision and explained: This case is at its earliest stages and, based solely on the plaintiffs pleadings in this case, it is premature to make a decision on the substantive issues. Accordingly, the defendants are not entitled to summary disposition at this time. Id. The Michigan Supreme Court s order was unanimous. Subsequent motions for reconsideration were filed, and the final order of the Michigan Supreme Court reaffirmed the April 30, 2010, order affirming this court s decision, and requiring consideration of the class certification issue under the Henry standards. (Supreme Court Order Granting Second Mot for Recons Nov 30, 2010.) 1 1 After the November 30, 2010, order, the Supreme Court issued another order on December 22, 2010, with expanded opinions of the justices, and subsequently denied reconsideration of the December 22, 2010, order with yet another order. 4

13 After the case was remanded to the trial court by the Michigan Supreme Court, and before even a single deposition was taken, defendants filed another motion for summary disposition, repeating the same arguments that they unsuccessfully presented to the trial court, this court, and the Supreme Court. In their latest motion for summary disposition the subject of this appeal defendants again argued that plaintiffs lacked standing, plaintiffs failed to state a claim, and class certification is improper. At a hearing on December 9, 2011, the trial court ruled that none of those grounds was grounds for dismissal. On the record, the court explained the basis for the denial as follows: (1) defendants class certification arguments were premature because discovery would first need to be completed before any court could reach the merits of whether the class should be certified; (2) plaintiffs did have standing, as the trial court had previously ruled, and their standing was not affected by the Michigan Supreme Court s ruling in Lansing Schools Ed Ass n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010); (3) contrary to defendants claim otherwise, none of the elements of res judicata had been met; and (4) plaintiffs had stated a claim upon which relief could be granted, as the trial court previously ruled and this court and the Supreme Court have affirmed. (Second Summ Disposition Hr g Tr Dec 9, 2011 (attached as Ex C hereto).) The trial court entered its order denying defendants motion for summary disposition on December 15, (Order Den Renewed Mot Summ Disposition Dec 15, 2011.) Defendants sought leave to this court to appeal the trial court s denial of summary disposition, and on March 1, 2012, this court granted leave, staying the trial court action pending this appeal. Defendants current appeal also includes an attempt to bring before 5

14 this court two hearsay exhibits, attached to their appellate brief, that were not brought before the trial court at any time when the court denied defendants motion for summary disposition. ARGUMENT I. Defendants Class Certification Arguments Are Premature and Should Be Rejected Defendants argue that plaintiffs have not met the criteria for class certification. (Defs Br ) The trial court properly rejected defendants class certification arguments, ruling that defendants arguments are premature at this time and should be addressed following the completion of discovery. (Ex C, Second Summ Disposition Hr g Tr 23.) This court should reach the same conclusion. A. Standard of Review This court cannot reverse the trial court s decision on class certification unless it finds that the trial court s decision was clearly erroneous. Zine v Chrysler Corp, 236 Mich App 261, 270; 600 NW2d 384 (1999). A ruling will be found clearly erroneous only where there is no evidence to support it or there is evidence but this Court is nevertheless left with a definite and firm conviction that a mistake has been made. Hill v City of Warren, 276 Mich App 299, 310; 740 NW2d 706, 715 (2007) (quoting Zine, 236 Mich App at 270). A trial court has broad discretion to determine whether a class will be certified. Henry v Dow Chemical Co, 484 Mich 483, 504; 772 NW2d 301 (2009). B. Analysis Plaintiffs originally filed a motion for class certification on February 22, 2007, the same day that the complaint was filed. That original motion for class certification was 6

15 timely filed. MCR 3.501(B)(1)(requiring motion for class certification to be filed within 91 days of filing a complaint that includes class action allegations). Plaintiffs motion for class certification was granted by the trial court during the May 15, 2007, hearing in which defendants motion for summary disposition was denied. (Ex A, Summ Disposition and Class Certification Hr g Tr 49:7-8). The trial court s decision on class certification was decided prior to the Supreme Court s decision in Henry. Consequently, plaintiffs did not pursue discovery in connection with their previous motion for class certification. In light of Henry, and the fact that defendants contest the facts upon which plaintiffs rely to satisfy the prerequisites of class certification, upon remand from the Supreme Court for reconsideration of class certification under Henry, plaintiffs began to pursue discovery with the expectation that they will file a renewed motion for class certification after discovery closes. 2 (Scheduling Order June 8, 2011 (attached as Ex D hereto).) Michigan law does not impose a deadline for filing renewed motions for class certification on remand. See, e.g., Hill, 276 Mich App at 306 ( The plain language of the court rule mandates that a motion for certification be brought within 91 days of the complaint; it does not forbid subsequent motions for certification or mandate any particular timing requirement for bringing them. ). Defendants will have the opportunity to argue that class certification is inappropriate after plaintiffs renewed motion for class certification is filed. Their attempt to do so now is premature and should be rejected. 2 This court, on granting leave, stayed discovery in the case on March 1, (Court of Appeals Order, March 1, 2012.) 7

16 A trial court has significant leeway... in determining when class certification should be addressed. Rouse v Caruso, No 06-CV-10961, 2011 WL , at *2 (ED Mich Mar 14, 2011); see also Bittinger v Tecumseh Products Co, 123 F3d 877, 884 (CA 6, 1997)(evaluating class certification under Rule 23 of the Federal Rules of Civil Procedure); Zine, supra at 288 n 12 (noting that because there is limited Michigan case law interpreting MCR 3.501, it is appropriate [for Michigan courts] to consider federal cases construing the similar federal court rule (FR Civ P 23) for guidance ). Consistent with the Supreme Court s orders, see Duncan, 486 Mich at 906, the trial court will have the opportunity to reconsider its class certification finding in light of Henry, which was decided after the trial Court s May 15, 2007 decision on class certification but before the Supreme Court s April 30, 2010 decision in this case. Henry sets forth a different procedure for class certification than was in existence the first time the plaintiffs sought certification of their class. Henry requires the development of a factual record, especially as here where the defendants contest the factual allegations of the complaint which support class certification. See Henry, supra at ( a court must only certify a class in circumstances where the court has actually been shown that the prerequisites for class certification are satisfied ). As the Supreme Court explained, [t]he averments in the pleadings of a party seeking class certification are only sufficient to certify a class if they satisfy the burden on the party seeking certification to prove that the prerequisites are met, such as in cases where the facts necessary to support this finding are uncontested or admitted by the opposing party. Id. at Thus, consistent with Henry, upon remand plaintiffs began to pursue discovery in advance of 8

17 filing a renewed motion for class certification. Discovery was not completed in fact, it had just begun before this court stayed the trial court proceedings. Defendants claim that no amount of discovery will enable plaintiffs to meet the class certification requirements is completely baseless (Defs Br 11) and should be seen for what it is: an end-run around the Supreme Court s admonishment that a trial court must determine whether class certification is proper... without questioning the actual merits of the case. Henry, supra at 504. The trial court here correctly determined that a decision on class certification should not be made before discovery is complete in accordance with the Henry decision. (Ex C, Second Summ Disposition Hr g Tr 23 ( I am going to deny the defendants motion regarding Michigan Court Rule 3.501(a)(1) and (2) about class certification. Those arguments are premature at this time. This Court does regard this as something that discovery is required to be completed on before the court can properly decide that issue in light of the Henry case. ).) The trial court had broad discretion to make this determination. See Bittinger, supra at 884; Rouse, supra at *2. It correctly followed the Henry dictates and deferred ruling on class certification following the close of discovery. See Henry, supra at Defendants have not shown that the trial court s decision was clearly erroneous, see Zine, supra at 270, nor have they offered any legitimate basis to reverse the trial court s ruling. 3 3 In cases in other states challenging the systemic failure to provide adequate indigent defense services, courts have rejected defendants challenges to class certification. See Hurrell-Harring v State of New York, 81 AD3d 69, 72; 914 NYS 2d 367 (NY App 3d Dep t, 2011) (holding that plaintiffs satisfied all of the prerequisites to class action certification in suit challenging New York State s failure to provide adequate indigent defense services in five counties); Wilbur v City of Mount Vernon, No C , 2012 WL (WD Wash, Feb 23, 2012)(attached as Ex E hereto)(granting class certification in suit challenging failure of two counties in 9

18 II. The Law of the Case Precludes Defendants from Arguing That Plaintiffs Lacked Standing and Failed to State a Cause of Action In their most recent motion for summary disposition (and in this appeal), defendants, again, challenge plaintiffs standing and claim that plaintiffs failed to state a cause of action. (Defs Br 19-35; Ex B, Appellants Br on First Appeal 3-25.) Defendants standing argument and argument under MCR 2.116(C)(8) that plaintiffs have failed to state a cause of action have already been rejected by the trial court, this court, and the Supreme Court. Defendants latest attempt offers no new case law or argument that would permit deviation from the law of the case. Defendants assertion that one new case the Lansing Schools case requires a reexamination of plaintiffs standing (Defs Br 29-35) ignores the fact that Lansing Schools relaxed Michigan s standing requirements. The trial court s rejection of defendants repeated arguments should not be reversed. A. Standard of Review This court is bound by its prior decision and the prior decision of the Michigan Supreme Court which constitute the law of the case. [A]n appellate court s determination of an issue in a case binds lower tribunals on remand and the appellate court in subsequent appeals. Grievance Adm r v Lopatin (After Remand), 462 Mich 235, ; 612 NW2d 120 (2000). As explained by the Michigan Supreme Court: The [ law of the case ] doctrine exists primarily to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit. It is premised on a need for finality of judgment Washington State to provide adequate indigent defense services); Best v Grant County, No (Sup Ct of Wash Kittitas Co, August 26, 2004)(attached as Ex F hereto)(granting class certification in suit challenging failure of county in Washington State to provide adequate indigent defense services). 10

19 and the want of jurisdiction of an appellate court to modify its judgment except on rehearing. Id. at 260 n 26 (quoting Locricchio v Evening News Ass n, 438 Mich 84, 109; 476 NW2d 112 (1991)). Where the law of the case does not control a trial court s standing decision, whether a party has standing is a question of law reviewed de novo. Manuel v Gill, 481 Mich 637, 642; 753 NW2d 48 (2008). Where the law of the case does not control the trial court s decision on a motion for summary disposition, the trial court s decision is reviewed de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). B. The Issues of Plaintiffs Standing and the Sufficiency of the Complaint Have Already Been Decided in Plaintiffs Favor, and Defendants Are Precluded from Raising Them Again at This Time After considering defendants original motion for summary disposition, the trial court rejected defendants argument that plaintiffs do not have standing and their argument under MCR 2.116(C)(8) that plaintiffs have failed to state a claim. (Ex A, Summ Disposition and Class Certification Hr g Tr ) This court affirmed that ruling in its lengthy June 11, 2009 opinion. Duncan, 284 Mich App at 246. The Michigan Supreme Court ultimately affirmed the result reached by this court. Duncan, 486 Mich at 906. That the Michigan Supreme Court affirmed the result only of this court s decision, rather than its reasoning, is of no moment. Id. The Michigan Supreme Court held that it is premature to rule on the substantive issues while the case is at its earliest stages and based solely on the pleadings. Id.; see also Colista v Thomas, 241 Mich App 529, 537; 616 NW2d 249, 254 (2000) ( a motion for summary disposition... is premature when discovery on a disputed issue has not been completed ). 11

20 Discovery has just begun; no significant discovery has occurred in this case since the Supreme Court s remand. As they did before, defendants are challenging plaintiffs pleadings under MCR 2.116(C)(8), without the benefit of facts learned in discovery. Thus, the law of the case precludes defendants from again asserting standing and failure to state a claim under MCR 2.116(C)(8) at this stage of the litigation, based solely on the pleadings. At the hearing on December 9, 2011, the trial court recognized that the law of the case bars defendants from asserting these arguments again. The trial court held: On the standing issue, Michigan Court Rule 2.116(C)(4), this court has previously ruled on that issue. And the court has found the plaintiffs do have standing. (Ex C, Second Summ Disposition Hr g Tr 23.) Likewise, the trial court ruled: [R]egarding the failure of the plaintiff[s] to state a claim upon which relief can be granted pursuant to MCR 2.116(C)(8), that issue was previously considered, and summary disposition was denied on those grounds. The Court of Appeals and the Supreme Court affirmed that decision. (Id. 24.) As discussed at length in plaintiffs brief in the first appeal, defendants arguments were baseless when first made. Defendants have no basis for raising these arguments yet again. Where an appellate court has considered a legal issue and remanded the case for further proceedings, the appellate court s decision... BINDS LOWER TRIBUNALS because the tribunal may not take action on remand that is inconsistent with the judgment of the appellate court. Lopatin, supra at 235, 260; see also Schumacher v Dep t of Natural Resources (After Remand), 275 Mich App 121, 128; 737 NW2d 782 (2007)( It is the duty of the lower court..., on remand, to comply strictly with the mandate of the 12

21 appellate court. )(alteration in original)(quoting Rodriguez v Gen Motors Corp (On Remand), 204 Mich App 509, 514; 516 NW2d 105 (1994)). The law of the case doctrine applies to all issues that were either explicitly or implicitly decided by the higher court. Lopatin, supra at 260. The Michigan Supreme Court affirmed this court s decision that summary disposition was inappropriate. Under these circumstances, consideration of the standing and MCR 2.116(C)(8) arguments raised by defendants is foreclosed by the law of the case. Defendants argument that plaintiffs have not sufficiently pleaded facts establishing the causation component of their claim (Defs Br 27-28), is simply another way of arguing that plaintiffs have not stated a claim, and also should be rejected because the law of the case commands that result. Plaintiffs 49-page complaint alleges at length defendants failings with respect to Michigan s indigent defense system and specifically in Berrien, Genesee, and Muskegon counties (Compl 88-98), and describes the consequences of these failings (id. at ). In a notice pleading state such as Michigan, Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 700 n 17; 684 NW2d 711 (2009), plaintiffs allegations of causation are more than sufficient. 4 C. Plaintiffs Standing Is Not Affected by Michigan s New Test for Standing Citing Lansing Schools, supra at 349, defendants argue that this court can revisit the issue of standing under an exception to the law of the case doctrine that holds that the 4 Even if defendants were correct in their claim that plaintiffs complaint is deficient with respect to the allegations of causation, defendants would not be entitled to summary disposition on that basis. MCR 2.116(I)(5) specifies that, where a party files a motion under MCR 2.116(C)(8), the court shall give the nonmoving party the opportunity to amend the complaint. Dismissal here would be improper because plaintiffs have not been given the opportunity to amend their complaint. 13

22 law of the case does not control if there has been a change in the relevant law. (Def s Br 28-35); see also Sinicropi v Mazurek (After Remand), 279 Mich App 455, 465; 760 NW2d 520 (2008). Defendants argument fails for two reasons. First, this exception is applicable only if there is a change in the law after the appellate court decision. 5 Freeman v DEC Int l, Inc (After Remand), 212 Mich App 34, 38; 536 NW2d 815 (1995); Bennett v Bennett, 197 Mich App 497, 503; 496 NW2d 353 (1992). The Supreme Court s opinion in Lansing Schools was released on July 31, The Supreme Court entered its final order affirming this court s decision four months later, on November 30, Consequently, the exception to the law of the case doctrine on which defendants rely does not apply. Second, even if Lansing Schools had been decided after the Supreme Court s final order in this case, plaintiffs clearly have standing under the Lansing Schools test. In Lansing Schools, the Michigan Supreme Court adopted a less stringent standing test than existed when the trial court first considered the defendants summary disposition motions in In other words, Lansing Schools makes plaintiffs ability to show standing easier, not more difficult. In Lansing Schools, the Michigan Supreme Court rejected the more demanding federal standing test and restored Michigan s traditional prudential test, observing that not only does the federal standing jurisprudence have no basis in Michigan law, it is contrary to it. Lansing Schools, supra at 365. The Michigan Supreme Court stated in relevant part: We hold that Michigan standing jurisprudence should be restored to a limited, prudential doctrine that is consistent with Michigan s long- 5 The fact that the Lansing Schools decision postdated this court s ruling on standing is irrelevant. 14

23 standing historical approach to standing. Under this approach, a litigant has standing whenever there is a legal cause of action. Further, whenever a litigant meets the requirements of MCR 2.605, it is sufficient to establish standing to seek a declaratory judgment. Where a cause of action is not provided at law, then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant. [Id. at 372 (emphasis added).] Prior to the Lansing Schools decision, Michigan courts employed a standing test analogous to the federal standard, in which (1) a plaintiff must have suffered an injury that is concrete and particularized and which is actual or imminent; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely that the injury will be redressed by a favorable decision. Lee v Macomb Co Bd of Comm rs, 464 Mich 726, 739; 629 NW2d 900 (2001)(quoting Lujan v Defenders of Wildlife, 504 US 555, ; 112 S Ct 2130; 119 L Ed 351 (1992)); see also Nat l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, ; 684 NW2d 800 (2004)(citing Lujan, supra at ). Having satisfied the more exacting federal standing standard, as the trial court, this court and the Supreme Court found, there simply cannot be a serious question as to whether plaintiffs meet the less-exacting standing requirements under Lansing Schools. Defendants arguments are actually inconsistent. They first argue that the decision in Lansing Schools compels a different result. Then they argue that this court should overturn Lansing Schools. (Defs Br ) The argument that this court should overturn Lansing Schools fatally undermines their argument that the exception articulated in Lansing Schools applies and compels a different result on consideration of plaintiffs standing. If Lansing Schools truly gave rise to an exception applicable to this case (and it 15

24 does not), defendants would not urge that it be overturned, which is beyond this court s power in any event. As the trial court correctly ruled, [plaintiffs ] standing is not affected by the Lansing School decision, which was decided in July 2010 by the Michigan Supreme Court. (Ex C, Second Summ Disposition Hr g Tr 23.) III. The Doctrine of Res Judicata Does Not Bar Plaintiffs Claims Defendants argue that res judicata bars plaintiffs claims. (Defs Br ) The trial court correctly rejected that argument; this court should reject the argument as well. A. Standard of Review The determination whether res judicata will bar a subsequent suit is a question of law that [this court] review[s] de novo. Pierson Sand and Gravel, Inc v Keeler Brass Co, 460 Mich 372, 379; 596 NW2d 153 (1999). B. Analysis Defendants assertion that plaintiffs claims are barred by the doctrine of res judicata (Defs Br 36-38), is nonsensical. Res judicata bars a second, subsequent action when (1) the prior action was decided on the merits, (2) both actions involve the same parties or their privies, and (3) the matter in the second case was, or could have been, resolved in the first. Adair v State of Michigan, 470 Mich 105, 121; 680 NW2d 386 (2004)(emphasis added); see also Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999) ( Res judicata bars a subsequent action between the same parties when the evidence or essential facts are identical. )(emphasis added). Here, the trial court found that none of the elements of res judicata has been met. (Ex C, Second Summ Disposition Hr g Tr ( The defendants third argument for summary disposition, the res judicata argument pursuant to MCR 2.116(C)(7), I am 16

25 rejecting that argument because this Court does not believe any of the elements of res judicata have been met. ).) The trial court was correct. Defendants contention that plaintiffs criminal convictions constitute previous decisions on the merits through which plaintiffs claims could have been resolved (Defs Br 36), is wrong. Plaintiffs, if convicted at some stage of this civil action, do not lose their standing to represent the class because the issues presented here were not presented in plaintiffs criminal cases, could not have been presented in plaintiffs criminal cases, and plaintiffs are representative of a class of individuals who have not been convicted. Named plaintiffs bring this action on behalf of a fluid class of individuals whose cases are pending and who have not yet been convicted. (Compl 1). New members of the class against whom no criminal convictions have been entered are continually populating the class. Plaintiffs do not seek exoneration, relief from prosecution, or damages for wrongful conviction. Rather, they seek to remedy a systemic harm (Compl ) caused by systemic deficiencies (id ) created by defendants (id ). These harms do not arise from isolated deficiencies in individual representation, but rather from defendants abdication of their constitutional responsibilities to the entire class. To remedy this systemic harm, plaintiffs request declaratory and injunctive relief, remedies unavailable in individual criminal actions. (Compl 12). Res judicata is thus inapplicable. See Sewell v Clean Cut Mgt, Inc, 463 Mich 569, 575; 621 NW2d 222 (2001). Defendants assertion that res judicata applies because this case involves the same parties or their privies, id. at 575, likewise fails. Defendants say that privity exists between prosecutors in a criminal case and the state in this case where it defends the 17

26 adequacy of state-appointed defense counsel because both share an interest in a fair, impartial, objective adjudication of the criminal case. (Defs Br 37.) The roles of the state and the prosecutor in the criminal justice system are vastly different. The state has a constitutional duty to ensure a that counsel is provided to an indigent defendant in a criminal case. Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963). The prosecutor is the state s representative who is not charged with providing public defense, but in fact is an adversary of a public defender in a criminal case. See, e.g., United States v Cronic, 466 US 648, 655; 104 S Ct 2039; 80 L Ed 2d 657 (1984)( [t]he very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective )(quotation marks and citation omitted). The prosecution does not present[] and protect[] the State s interest in providing defense counsel. (Defs Br 37 (quoting Adair, supra at 122).) There is thus no privity between the prosecutors in a criminal case and the State of Michigan here, involving the issues raised in this complaint. Whether plaintiffs could seek relief of the courts in their criminal cases is not dispositive of whether they can seek declarative and injunctive relief against the state in this case. The State of New York s attempt to make this same argument was rejected by the New York Court of Appeals which found: Neither law, nor logic, nor sound public policy dictates that one form of relief should be preclusive of the other. Hurrell- Harring v New York, 15 NY3D 8, 25; 930 NE2d 217 (2010). Plaintiffs would be unable to seek any declarative or injunctive relief in their criminal cases. This court should reject defendants attempt to dispose of this case on res judicata grounds. 18

27 IV. Defendants Judicial Estoppel Argument Is Frivolous Defendants argument that judicial estoppel bars plaintiffs from pointing out that defendants MCR 2.116(C)(8) motion was previously raised and denied (Defs Br 20-21) is completely baseless and should be rejected. A. Standard of Review Judicial estoppel is an equitable doctrine. Findings of fact supporting the trial court s decision are reviewed for clear error, and the application of the doctrine is reviewed de novo. Szyszlo v Akowitz, 296 Mich App 40; NW2d (2012)(internal citations omitted). This court has jurisdiction to review only those issues actually decided by the trial court. Allen v Keating, 205 Mich App 560, 564; 517 NW2d 830 (1994). B. Analysis Defendants incorrectly argue that the doctrine of judicial estoppel prohibits plaintiffs from asserting now that the Supreme Court affirmed the trial court s first denial of the defendants motion for summary disposition under MCR 2.116(C)(8). (Defs Br 21.) Defendants base this argument on a statement of plaintiffs counsel before the Supreme Court which is taken completely out of context. As a matter of record, defendants first MCR 2.116(C)(8) motion was extensively briefed, argued and decided in the trial court, this court, and the Michigan Supreme Court, regardless of what was said on argument before the Supreme Court. When the Supreme Court affirmed this court, it affirmed a decision that clearly addressed defendants MCR 2.116(C)(8) motion. Indeed, this court summarized the claims before it with explicit reference to the defendants MCR 2.116(C)(8) motion: 19

28 Defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(4), (7), and (8). Defendants maintained that plaintiffs lacked standing, the case was not ripe for adjudication, the trial court lacked jurisdiction on a variety of grounds, there was a failure to state a claim upon which declaratory and injunctive relief could be granted, the wrong parties were sued, and governmental immunity shielded defendants from liability. [Duncan, 284 Mich App at ] In other words, when the Supreme Court affirmed this court, it affirmed a case that considered defendants (C)(8) motions. Defendants argument to the contrary relies inappropriately on a quotation from oral argument concerning claims against the Governor, that was taken out of context. 6 That the trial court did not explicitly reject defendants judicial estoppel argument on the record at the hearing on December 9, 2011, is of no moment. The question is whether the trial court reached the right result. De novo review of a decision denying summary disposition means that this court considers the whole record and is not bound by the grounds articulated by the trial court for the denial. Maiden v Rozwood, supra. Defendants argument is also self-defeating: if the trial court did not decide this question, the court of appeals cannot review it. See Allen, 205 Mich App at 564 ( Appellate review is limited to issues actually decided by the trial court. ). This court should reject defendants judicial estoppel argument as it is frivolous. 6 The quote at issue The again, there is no there is no (C)(8) motion before you with respect to on whether relief can be granted against the Governor. Oral Arg Tr 17 April 14, 2010 (attached as Ex G hereto) directly addressed the Justices question whether the Governor was a proper party through a motion for summary disposition under MCR 2.116(C)(8), an argument that had been abandoned by defendants at the Supreme Court. 20

29 V. Defendants Improper and Irrelevant Exhibits Attached to Their Brief on Appeal Should Not Be Considered By This Court Defendants attached two exhibits to their brief that were never part of the trial court record when the court denied summary disposition to the defendants. (See Defs Br on Appeal, Exs 2 & 3.) Those exhibits are inadmissible hearsay, which plaintiffs never had a chance to counter in the trial court; they grant no support to defendants arguments. Plaintiffs moved to strike those exhibits in this court, while defendants moved to permit the exhibits as a supplementation of the record. This court granted defendants motion to supplement, and denied plaintiffs motion to strike, but permitted plaintiffs to address in their brief why the exhibits should not be considered by the court. (Order Den Mot to Strike, July 3, 2012 entered in this case.) Exhibit 2 attached to defendants brief is a five-page letter written on January 23, 2012 by the Chief of the Attorney General s appellate division. 7 This letter could not have been part of the trial court record because it was drafted over one month after the trial court denied the defendants motion for summary disposition. It was written by counsel who represents defendants in this action. Also attached to defendants brief is a copy of a February 14, 2012, letter from the Wayne County Prosecutor. (See Defs Brief Ex 3.) This letter likewise could not have been a part of the trial court record because it was written two months after the trial court entered its order denying defendants renewed motion for summary disposition. 7 Defendants refer to the exhibits attached to their brief as attachments. 21

30 There is no authority that permits this court to consider these two exhibits and the references to these exhibits in the body of defendants brief. 8 The contested exhibits are neither judicially noticeable nor relevant to the pleaded issues. Winekoff v Pospisil, 384 Mich 260, 266; 181 NW2d 897 (1970). Defendants offer no argument to the contrary. A. Defendants Exhibits Are Not Judicially Noticeable At its own discretion, [a] court may take judicial notice [of a fact], whether requested or not.... MRE 201(c); People v Burt, 89 Mich App 293, 297; 279 NW2d 299 (1979). However, [a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. MRE 201(b). Defendants Exhibits 2 and 3 do not contain facts generally known. MRE 201(b). Facts that are generally known and appropriate for judicial notice include those that are obvious to the common apprehension of mankind, as well as the more obvious dictates of common sense and principles of human action. Winekoff, supra at 267 (quoting Lake Shore & MSRR Co v Miller, 25 Mich 274, (1872)). Michigan courts have taken judicial notice of generally known facts such as days of the week and the location of cities within the state. See, e.g., People v Goecke, 457 Mich 442, 448 n 2; 8 Furthermore, these exhibits constitute inadmissible hearsay. See MRE 801(c); MRE 802; cf. Willmore v Hertz Corp, 322 F Supp 444, 447 (WD Mich, 1969) aff d, 437 F2d 357 (CA 6, 1971)(police report constituted inadmissible hearsay because although the testifying officer took part in taking various measurements he could not state that he personally took the measurements contained in the report, or that he had knowledge at the time, apart from belief, that they were correct ). The defendants point to no exception to the Michigan hearsay rules that would permit these hearsay statements to be admitted, which are clearly offered for the truth of their contents. See MRE

31 579 NW2d 868 (1998)( Judicial notice is taken of the fact that November 11, 1993, fell on a Thursday. ); People v Smith, 28 Mich App 656, 657; 185 NW2d 185 (1970)( In general, a court may take judicial notice of the locations of political subdivisions of the state. For example, it has been held proper to take judicial notice that Detroit is in Wayne County. ). Exhibits 2 and 3 attached do not contain generally known facts; rather, they include purported facts and conclusions drawn from prosecutors unspecified studies of Michigan decisions, which are plainly not obvious to the common apprehension of mankind. Winekoff, supra at 267. Nor do the contested exhibits constitute information capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. MRE 201(b). These exhibits include numerous statistical calculations and authors conclusions which defendants rely on to bolster their factual claims and legal arguments. (See, e.g., Defs Br 5 (claiming, based on Ex 2, that a statistically insignificant number of state court convictions have been reversed based on ineffective assistance of counsel ).) Notably, the exhibits themselves acknowledge that the statistical calculations contained therein may not be accurate. (See Defs Br Ex 3 ( it is possible that this is not entirely accurate ).) If these exhibits had been presented to the trial court to support defendants motion for summary disposition, plaintiffs would have been entitled to contest this type of imprecise statistical calculation in the trial court. As the Sixth Circuit Court of Appeals has recognized, statistical calculation constitutes evidence and, as such, is properly introduced only at trial for the consideration of the district court.... [L]ike any other scientific analysis, the district court must have the opportunity to examine and weigh this evidence. The accuracy and significance of the calculation can reasonably be questioned.... [Taylor v Procter & Gamble Co, an unpublished disposition of the United States Court of Appeals for the 23