Kowalski v. Tesmer
In 1994, Michigan's voters passed an amendment to the Michigan constitution precluding criminal defendants who plead guilty, guilty but mentally ill, or nolo contendre (no contest) from receiving an appeal of right. Rather, these defendants may appeal only by leave of the Michigan Court of Appeals. Several Michigan state judges began to deny appointed appellate counsel to indigent defendants who pled guilty or nolo contendre, a practice that the state legislature codified in a statute.
After Tesmer pled guilty to a charge of home invasion, he was sentenced to nine to fifteen years imprisonment and was denied appointed counsel for an appeal. Tesmer and two other indigent defendants who were also denied appointed appellate counsel brought an action in the federal district court under 42 U.S.C. §1983, alleging that the practice and the statute violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. The group of plaintiffs also included two attorneys who accept appointments in criminal proceedings. The defendants were three Michigan state court judges and the state attorney general.
The district court found that the plaintiff-attorneys had third-party standing to sue, but that the court should abstain from hearing the claims of the indigent plaintiffs. The court further declared the challenged statute and practice unconstitutional and eventually entered an injunction prohibiting all Michigan state judges from denying appointed appellate counsel. The Sixth Circuit Court of Appeals, en banc, affirmed that the plaintiff-attorneys had third-party standing and that the Michigan statute and practice are unconstitutional.
Questions Presented:
The Michigan Constitution, Mich Const 1963, art I, § 20, provides that a criminal defendant who pleads guilty shall not have an appeal of right and shall
have a right to appointed appellate counsel "as provided by law." A Michigan statute, Michigan Compiled Law (MCL) 770.3a, provides, with significant listed exceptions, that criminal defendants who
plead guilty shall not have appointed appellate counsel for discretionary appeals for review of the defendant's conviction or sentence.
I. Does the Fourteenth Amendment guarantee a right to an appointed appellate attorney in a discretionary first appeal of an indigent criminal defendant convicted by a guilty plea?
II. Do attorneys 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 in discretionary first appeals following convictions by guilty pleas where the federal courts properly abstained from hearing the claims of indigent criminal defendants themselves?
