Right to counsel
Mich. Rev. Code § 3.903(A)(5) defines a “delinquency proceeding” as those “concerning an offense by a juvenile, as defined in MCR 3.903(B)(3).” In turn, Mich. Comp. Laws § 3.903(B)(3) states that an ” ‘offense by a juvenile’ means an act that violates a criminal statute, a criminal ordinance, a traffic law, or a provision of MCL 712A.2(a) or (d).”
Truancy proceedings are brought under Mich. Comp. Laws § 712A.2(a)(4), thus they fall within the definition of a “delinquency proceeding” over which the juvenile court has jurisdiction. (“The juvenile willfully and repeatedly absents himself or herself from school or other learning program intended to meet the juvenile’s educational needs … and the court finds on the record that the juvenile, the juvenile’s parent, guardian, or custodian, and school officials or learning program personnel have met on the juvenile’s educational problems and educational counseling and alternative agency help have been sought.”).
Pursuant to Mich. Comp. Laws § 3.915(A)(2), “[t]he court shall appoint an attorney to represent the juvenile in a delinquency proceeding if … those responsible for the support of the juvenile refuse or neglect to retain an attorney for the juvenile, and the juvenile does not waive an attorney[.]” Mich. Comp. Laws § 712A.17c(2) incorporates similar language and provides in regards to the right to counsel in truancy matters:
[T]he court shall appoint an attorney to represent the child if 1 or more of the following apply:
(a) The child’s parent refuses or fails to appear and participate in the proceedings.
(b) The child’s parent is the complainant or victim.
(c) The child and those responsible for his or her support are financially unable to employ an attorney and the child does not waive his or her right to an attorney.
(d) Those responsible for the child’s support refuse or neglect to employ an attorney for the child and the child does not waive his or her right to an attorney.
(e) The court determines that the best interests of the child or the public require appointment.
The court must notify the child of their right to counsel in truancy matters per Mich. Comp. Laws § 712A.17c(1) (“in a proceeding brought under section 2(a) … of this chapter … the court shall advise the child that he or she has a right to an attorney at each stage of the proceeding.”).
Regarding waiver, Mich. Comp. Laws § 712A.17c(3) provides that children may waive their right to counsel, but the waiver must be made “in open court, on the record, and shall not be made unless the court finds on the record that the waiver was voluntarily and understandingly made. The child may not waive his or her right to an attorney if the child’s parent or guardian ad litem objects or if the appointment is made under subsection (2)(e) [the child or public’s best interests].”
In In re EE, the Court of Appeals of Michigan considered the validity of children’s purported waiver of their right to counsel in a truancy matter. 2023 WL 2939199 (Mich. Ct. App. 2023) (plurality). The Court applied plain error review to reverse and remand, holding that the trial court’s error deprived the children of their right to counsel and seriously affected the fairness and integrity of the proceedings. Borrowing waiver cases from the criminal context, the Court discussed the three factors that must be met before a court can grant a criminal defendant’s request for self-representation:
(i) The request for self-representation must be unequivocal;
(ii) The trial court must find that the defendant is asserting their right to represent themselves knowingly, intelligently and voluntarily; and
(iii) “[T]he trial court must determine that the defendant’s acting as his own counsel will not disrupt, unduly influence and burden the court and the administration of the court’s business.”
Id. at *7 (quoting People v. Anderson, 247 N.W.2d 857 [Mich. 1976]). In this case, three separate attorneys for the children withdrew in succession, all claiming that the children’s father had refused to allow them to speak with the children confidentially. The Court found that the children’s waiver was not unequivocal as they never requested self-representation, and the statements made were ambiguous. Further, the trial court never determined that the children understood the significance of representing themselves or whether they were forced into the decision by their father. The trial court also failed to advise the children of their right to counsel at each stage of the truancy proceeding. Finally, the Court reasoned, although there was “no evidence that the children behaved inappropriately while conducting their own defense[,]” Mich. Ct. R. 3.915(2)(e) provides a standard similar to the third factor articulated in People v. Anderson, “requir[ing] that a court appoint an attorney for a juvenile in a delinquency proceeding if ‘the court determines that the best interests of the juvenile or the public require appointment.'” In re EE, 2023 WL 2939199 at *7. Because the trial court “fail[ed] to consider the children’s best interests,” its other errors were “compounded.”
Notably, a concurring opinion by Chief Justice Gleicher indicated that he would have applied structural error, having found a right to counsel for juveniles in truancy proceedings under the Due Process Clauses of both the United States and Michigan Constitutions. In re EE, 2023 WL 2939199 at *7-8 (Gleicher, C.J., concurring). Citing In re Gault, 87 S.Ct. 1428 (1967), the Justice noted that because delinquency proceedings can result in a child being placed outside of their home, “[a] ‘delinquency’ proceeding as described in Gault potentially ‘subject[s] [a child] to the loss of his liberty for years,’ and ‘is comparable in seriousness to a felony prosecution.'” Id. at *8. The concurring opinion also emphasized the “serious and long-lasting collateral consequences of an adjudication of a status offense[,]” including ” ‘incarceration, fines, involuntary community service, recursive court involvement, loss of driving privileges, imposition of curfews,” and more. Id.
