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noting that the “due process guarantee of the Michigan Constitution is coextensive with its federal counterpart.”
Summary of this case from Martinez v. Cnty. of WayneOpinion
No. 351308
04-08-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Travis Michael JOHNSON, Defendant-Appellant.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Linus Banghart-Linn, Assistant Attorney General, for the people. State Appellate Defender (by Angeles R. Meneses), for Travis M. Johnson. Rubina Mustafa and Geoffrey Leonard, for Amicus Curiae Detroit Justice Center.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Linus Banghart-Linn, Assistant Attorney General, for the people.
State Appellate Defender (by Angeles R. Meneses), for Travis M. Johnson.
Rubina Mustafa and Geoffrey Leonard, for Amicus Curiae Detroit Justice Center.
Before: Shapiro, P.J., and Sawyer and Beckering, JJ.
Beckering, J. At issue in this criminal appeal is the constitutionality of MCL 769.1k(1)(b)(iii ). MCL 769.1k(1)(b)(iii ) permits a trial court to impose court costs on a convicted defendant that are reasonably related to the actual costs incurred in processing a criminal case. This statute has been the subject of much scrutiny of late, both in our caselaw and by task forces and organizations seeking to ensure that our judicial system runs fairly and equitably, especially for our most economically vulnerable citizens and with respect to potential pressures placed on judges by local court funding sources. Defendant Travis Michael Johnson, whose case is before us on delayed leave granted, raises a facial challenge to MCL 769.1k(1)(b)(iii ), claiming it deprives criminal defendants of their due-process right to an impartial decision-maker and violates separation-of-powers principles. While we leave open the question whether a successful as-applied challenge could be made under certain presenting circumstances, in answer to the only legal questions squarely before us, we disagree that the statute is facially unconstitutional.
People v. Johnson , unpublished order of the Court of Appeals, entered December 27, 2019 (Docket No. 351308).
I. BASIC FACTS
Defendant pleaded guilty to resisting or obstructing a police officer, MCL 750.81d(1). The trial court placed him on probation and ordered a one-year delayed sentence. At a subsequent probation-violation hearing, defendant pleaded no contest to aggravated domestic violence, second offense, MCL 750.81a(3), and interference with electronic communications, MCL 750.540(5)(a). The trial court revoked defendant's delayed sentence and sentenced him to serve 138 days in jail for resisting or obstructing a police officer and 138 days in jail for interference with electronic communications, with 138 days of jailtime credit, and 13 months to 5 years’ imprisonment for aggravated domestic violence. The court also assessed $600 in court costs in each lower-court file, for a total of $1,200. II. DISCUSSION
We review de novo constitutional issues and matters involving statutory interpretation. People v. Brown , 330 Mich. App. 223, 229, 946 N.W.2d 852 (2019). A statute challenged on constitutional grounds "is presumed to be constitutional and will be construed as such unless its unconstitutionality is clearly apparent." People v. Solloway , 316 Mich. App. 174, 184, 891 N.W.2d 255 (2016) (quotation marks and citation omitted).
"A constitutional challenge to the validity of a statute can be brought in one of two ways: by either a facial challenge or an as-applied challenge." In re Forfeiture of 2000 GMC Denali & Contents, 316 Mich. App. 562, 569, 892 N.W.2d 388 (2016). A facial challenge attacks the statute itself and requires the challenger to " ‘establish that no set of circumstances exists under which the [a]ct would be valid. The fact that the ... [a]ct might operate unconstitutionally under some conceivable set of circumstances is insufficient....’ " Council of Organizations & Others for Ed. About Parochiaid, Inc. v. Governor , 455 Mich. 557, 568, 566 N.W.2d 208 (1997) (alterations in original), quoting United States v. Salerno , 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). An as-applied challenge alleges " ‘a present infringement or denial of a specific right or of a particular injury in process of actual execution’ of government action." Bonner v. City of Brighton , 495 Mich. 209, 223 n. 27, 848 N.W.2d 380 (2014), quoting Village of Euclid v. Ambler Realty Co. , 272 U.S. 365, 395, 47 S. Ct. 114, 71 L. Ed. 303 (1926).
Defendant does not argue that the trial judge in his case failed to act impartially when deciding to impose court costs under MCL 769.1k(1)(b)(iii ). Rather, the thrust of his argument is that MCL 769.1k(1)(b)(iii ) operates in the state of Michigan to deprive all criminal defendants of their due-process right to appear before an impartial decision-maker because the statute incentivizes all judges to convict criminal defendants and impose court costs to raise revenue for the courts. This argument sets forth a facial challenge to the constitutionality of the statute at issue. Accordingly, defendant "must establish that no set of circumstances exists under which the act would be valid." Council of Organizations , 455 Mich. at 568, 566 N.W.2d 208 (quotation marks, citation, and alteration omitted).
The Detroit Justice Center (DJC) filed a brief as amicus curiae of defendant, attaching a copy of a pamphlet entitled "Highway Robbery: How Metro Detroit Cops & Courts Steer Segregation and Drive Incarceration." Although the DJC asserts that the statute at issue is unconstitutional because it deprives defendants of an unbiased decision-maker, the gravamen of its argument is that all fines, fees, and costs assessed for minor traffic offenses by Michigan courts in general, and Detroit courts in particular, have a disproportionate impact on poor people and on people of color. The DJC's argument goes more to an as-applied challenge than to a facial challenge.
The United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const., Am. XIV. "It is axiomatic that a fair trial in a fair tribunal is a basic requirement of due process." Caperton v. A.T. Massey Coal Co., Inc. , 556 U.S. 868, 876, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (quotation marks, citation, and brackets omitted). "The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases." Marshall v. Jerrico, Inc. , 446 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980). Among other things,
The Michigan Constitution provides, "No person shall be ... deprived of life, liberty or property, without due process of law." Const. 1963, art. 1, § 17. Defendant does not state whether his argument is based on violation of due-process guarantees provided by the federal or the state Constitution. This Court has previously held that the "due process guarantee of the Michigan Constitution is coextensive with its federal counterpart." Grimes v. Van Hook-Williams , 302 Mich. App. 521, 530, 839 N.W.2d 237 (2013). In his due-process argument, defendant cites caselaw applying only the federal Constitution. Therefore, we presume that defendant bases his challenge on an alleged violation of the federal Constitution and will analyze his argument accordingly.
[t]his requirement of neutrality in adjudicative proceedings ... preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done," Joint Anti-Fascist Committee v. McGrath , 341 U.S. 123, 172[, 71 S. Ct. 624, 649, 95 L. Ed. 817] (1951) (Frankfurter, J., concurring), by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him. [ Id. ]
At the time defendant was sentenced, MCL 769.1k(1) provided, in relevant part:
If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred pursuant to statute or sentencing is delayed pursuant to statute:
(a) The court shall impose the minimum state costs as set forth in [ MCL 769.1j ].
(b) The court may impose any or all of the following:
(i ) Any fine authorized by the statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty.
(ii ) Any cost authorized by the statute for a violation of which the defendant entered a plea of guilty or nolo contendere or the court determined that the defendant was guilty.
(iii ) Until 36 months after the date the amendatory act that added subsection (7) is enacted into law,[ ] any cost reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case, including, but not limited to, the following:
(A) Salaries and benefits for relevant court personnel.
(B) Goods and services necessary for the operation of the court.
(C) Necessary expenses for the operation and maintenance of court buildings and facilities. [ MCL 769.1k(1), as amended by 2014 PA 352 (emphasis added).]
The "sunset" date in MCL 769.1k(1)(b)(iii ) has been periodically amended and is currently October 1, 2022. See 2020 PA 151.
Defendant contends in his brief to this Court that MCL 769.1k(1)(b)(iii ) "provides a financial incentive for trial judges to see that criminal defendants are convicted so that they can then order the defendant to pay costs, which can then be used to fund the courts in which the judges preside." He further contends that this funding scheme deprives criminal defendants of their right to appear before an impartial judge and violates separation-of-powers principles by preventing "the judicial branch from carrying out its constitutionally assigned functions of maintaining impartiality in criminal trials and ... maintaining and enforcing rules requiring that trial judges remain impartial in criminal proceedings." Defendant suggests that as a result of this arrangement, "all trial court judges lack neutrality in criminal proceedings[ and] no trial court judge can accomplish his or her constitutionally assigned function of overseeing criminal trials."
As an initial matter, we question whether the "financial incentive[s] for trial judges to see that criminal defendants are convicted" are operative in cases such as this one, involving defendants who choose to plead guilty and do not argue that their pleas were improperly entered and in which the costs imposed meet statutory requirements. Next, the degree or kind of financial interest that "is sufficient to disqualify a judge from sitting cannot be defined with precision." Caperton , 556 U.S. at 879, 129 S.Ct. 2252 (quotation marks and citations omitted). However, two seminal decisions from the United States Supreme Court identify circumstances relevant to the question of whether the financial interests of a trial court might raise due-process concerns.
The first of these two cases is Tumey v. Ohio , 273 U.S. 510, 523, 47 S. Ct. 437, 71 L. Ed. 749 (1927), in which the Supreme Court held that subjecting the liberty and property of a defendant to a court wherein the judge had a "direct, personal, substantial, pecuniary interest" in a conviction constituted denial of due process. In Tumey , state law and local ordinances allowed the mayor of the village of North College Hill, Ohio, to try cases involving violations of the state's prohibition act and to fine those convicted. Id. at 516-519, 47 S. Ct. 437. Half of the money collected from such fines went into the village's treasury. Id. at 518, 47 S. Ct. 437. The mayor also received $12 for each conviction, "in addition to his regular salary, as compensation for hearing such cases." Id. at 519, 523, 47 S. Ct. 437. The mayor did not receive this supplemental income from acquittals. Id. at 523, 47 S. Ct. 437. In addition to his judicial authority, the mayor also exercised executive authority for the village, including responsibility for the village's financial health. Id. at 533, 47 S. Ct. 437. The mayor's judicial role gave him a "direct, personal, substantial, pecuniary interest" in convicting defendants, id. at 523, 47 S. Ct. 437, and his executive role gave him a strong motive to help the finances of his village through convictions and heavy fines, id. at 533, 47 S. Ct. 437. The Supreme Court held that this arrangement denied defendants due process of law, and it established the following general rule:
Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law. [ Id. at 532, 47 S. Ct. 437.]
In Tumey , the combination of judicial and executive authority in the mayor, which allowed him to generate, benefit personally from, and administer the revenue collected from assessments he imposed when sitting as a judge, "offer[ed] a possible temptation" to partiality and the attendant denial of due process. Id.
The second seminal case is Dugan v. Ohio , 277 U.S. 61, 65, 48 S. Ct. 439, 72 L. Ed. 784 (1928), wherein the Supreme Court held that due-process concerns did not arise because of the remoteness of a mayor's connection to the funds he generated when sitting as a judge. Like the mayor in Tumey , the mayor in Dugan could also judge cases involving violations of the state's prohibition act and fine those found guilty. Id. at 62-63, 48 S.Ct. 439. The fines the Dugan mayor imposed went into a general fund, out of which the mayor's salary was paid. Id. Unlike the mayor in Tumey , however, the mayor in Dugan received no supplemental income from convictions. Id. at 65, 48 S. Ct. 439. Further, as one of five commissioners who, along with the city manager, exercised the city's executive power, the mayor was only remotely responsible for the executive and financial policy of the city. See id. at 63, 48 S. Ct. 439. The Supreme Court determined that the Dugan mayor's relation under the city's charter "to the fund contributed to by his fines as judge, or to the executive or financial policy of the city, [was] remote," and held that the arrangement in Dugan did not violate the right of criminal defendants to due process. Id. at 65, 48 S. Ct. 439.
In Ward v. Village of Monroeville , 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972), the Supreme Court appears to have extended Tumey to situations in which the personal benefit from court assessments appears more indirect than direct. The defendant in Ward had to stand trial for a traffic offense in the mayor's court. Id. at 57, 93 S.Ct. 80. In addition to his judicial role, the mayor had wide executive powers. Among other things, he was president of the village council, had general overall supervision of village affairs, and accounted annually to the village council for the village's finances. Id. at 58, 93 S. Ct. 80. The court assessments—fines, forfeitures, costs, and fees—imposed in the mayor's court provided between 37% and 51% of the village's income during the years surveyed. See id. The Supreme Court determined that Tumey governed resolution of the case, reasoning that the limits of the principle set forth in Tumey were not defined by the fact that the Tumey mayor shared directly in the fees and costs he generated in his judicial role. Id. at 60, 93 S. Ct. 80. Rather, "the test is whether the mayor's situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused ....’ " Id ., quoting Tumey , 273 U.S. at 532, 47 S.Ct. 437. The Court concluded that " ‘possible temptation’ may also exist when the mayor's executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor's court." Ward , 409 U.S. at 60, 93 S.Ct. 80.
Two recent decisions by the United States Court of Appeals for the Fifth Circuit provide examples of circumstances deemed to fall within the ambit of Ward . In Caliste v. Cantrell , 937 F.3d 525, 526 (C.A. 5, 2019), the defendant, Judge Cantrell, presided over the initial appearance of all defendants in the Orleans Parish Criminal District Court (OPCDC). He required about half the defendants who appeared before him to secure a commercial bond as a condition of their pretrial release. Id. Under Louisiana law, 1.8% of the bond's surety value was deposited in the court's Judicial Expense Fund (JEF), a fund administered by the 13 judges on the district court and used to pay the salaries of court staff, office supplies, travel, and other costs. Id. In recent years, the covered expenses had totaled more than a quarter of a million dollars for each of the 13 judges of the court, and the bond fees contributed approximately 20% to 25% of that amount. Id.
The decisions of lower federal courts are not binding on this Court but may be considered persuasive. People v. Walker (On Remand) , 328 Mich. App. 429, 444-445, 938 N.W.2d 31 (2019) (quotation marks and citation omitted).
In holding that this "uncommon arrangement violate[d] due process," id. at 532, the Fifth Circuit concluded that Judge Cantrell was "more like the Ward mayor than the Dugan mayor" because he had a "a direct and personal interest in the fiscal health of the public institution that benefits from the fees his court generates and that he also helps allocate," id. at 531. Although the fees in Caliste accounted for only 20% to 25% of the JEF, the court deemed this percentage "sizeable enough that it [made] a meaningful difference in the staffing and supplies judges receive." Id. Therefore, Judge Cantrell's dual role of generator and administrator of court fees, and the benefit he derived from use of the fees, had the potential to make him "partisan to maintain the high level of contribution" from the bond fees. Id. at 531-532, quoting Ward , 409 U.S. at 60, 93 S. Ct. 80. Similarly, in Cain v. White, 937 F.3d 446, 454 (C.A. 5, 2019), the Fifth Circuit held that because the OPCDC judges had exclusive authority over how the JEF is spent and had to account for the OPCDC budget to the New Orleans city council and New Orleans mayor, and the court fines and fees deposited in the JEF made up a significant portion of the judges’ annual budget, the situation fell within the ambit of Ward . The court emphasized that it based its conclusion on "the totality of this situation, not any individual piece." Id.
Turning to the present case, defendant contends that MCL 769.1k(1)(b)(iii ) encroaches on the judiciary's impartiality by creating financial incentives and pressure for judges to ensure that criminal defendants are convicted and assessed court costs so as to fund the trial courts. Defendant contends that under this funding scheme, "[t]he more money the judge orders the defendant to pay the more money she will generate for the county, and ultimately, for the court where she presides." We recently addressed similar arguments in People v. Alexander , unpublished per curiam opinion of the Court of Appeals, issued May 14, 2020 (Docket No. 348593), 2020 WL 2505402. Although we are not bound by the decision in Alexander , MCR 7.215(C)(1), we do find Alexander ’s analysis and application persuasive.
To the extent defendant suggests that a trial court's discretion to impose costs under MCL 769.1k(1)(b)(iii ) is unconstrained, he is mistaken. As this Court explained in Alexander :
[A] trial judge does not have unfettered discretion with respect to the amount of costs to impose under this provision because the costs imposed must be "reasonably related to the actual costs incurred by the trial court without separately calculating those costs involved in the particular case," MCL 769.1k(1)(b)(iii ) ; see also
People v. Konopka (On Remand) , 309 Mich. App. 345, 350-351, 869 N.W.2d 651 (2015), and there must be a factual basis demonstrating that the imposed costs are reasonably related to the actual costs incurred by the trial court, Konopka , 309 Mich. Ap[p.] at 359-360 . Hence, contrary to defendant's argument, MCL 769.1k(1)(b)(iii ) does not provide the trial court with the authority to increase the costs imposed on criminal defendants as a means for generating more revenue. [ Alexander , unpub. op. at 14.]
Therefore, contrary to the implication of defendant's argument that trial courts may impose any amount of costs they deem necessary to generate revenue, the costs imposed by a trial court must have a factual basis and must be reasonably related to the actual costs incurred by the court.
Further, defendant provides no evidence for his assumption that there is a direct correspondence between the court costs imposed and the money the cost-imposing court receives. Undeniably, " MCL 769.1k(1)(b)(iii ) is a revenue-generating statute." People v. Cameron , 319 Mich. App. 215, 224, 900 N.W.2d 658 (2017). However, defendant has failed to show that MCL 769.1k(1)(b)(iii ) also authorizes courts to administer the revenue so collected. As this Court explained in Alexander , " MCL 769.1k(1)(b)(iii )(A)-(C) provide guidance for establishing the requisite factual basis, but these provisions do not indicate where the money flows after the costs have been imposed on and paid by a convicted defendant." Alexander , unpub. op. at 14. Defendant has not established "the type of direct nexus between a judge's compensation and any fees or costs imposed that was present in Tumey ." Id. Indeed, Michigan's Constitution provides that " ‘[n]o judge or justice of any court of this state shall be paid from the fees of his office nor shall the amount of his salary be measured by fees, other moneys received or the amount ofjudicial activity of his office.’ " Id ., quoting Const. 1963, art. 6, § 17. Nor has defendant provided any evidence that "the costs imposed under MCL 769.1k(1)(b)(iii ) are funneled into a special or specific fund to be administered by judges, analogous to the Judicial Expense Fund at issue in Caliste and Cain ." Alexander , unpub. op. at 14. In other words, defendant has not shown that the nexus between the courts and the costs they impose under the statute at issue more closely resembles the circumstances in Tumey , Ward , Caliste , or Cain , than in Dugan , in which the entity exercising the judicial role benefited from a portion of the revenue generated by court assessments but did not have control over administration of the revenue.
Defendant points to observations in Chief Justice MCCORMACK ’s concurrence in Cameron to support his argument that the pressure put on judges to generate revenue by assessing costs pursuant to MCL 769.1k(1)(b)(iii ) violates the right of criminal defendants to an impartial judge. People v. Cameron , 504 Mich. 927, 927-929, 929 N.W.2d 785 (2019) ( MCCORMACK , C.J., concurring). The Michigan District Judges Association (MDJA) argued in an amicus curiae brief filed in Cameron that MCL 769.1k(1)(b)(iii ) violated the Fourteenth Amendment, and it also submitted letters that provided anecdotal evidence of the pressure some district judges were under to ensure that their courts were well-funded. Opining that the MDJA might be right, Chief Justice MCCORMACK stated:
No matter how neutral and detached a judge may be, the burden of taxing criminal defendants to finance the operations of his court, coupled with the intense pressures from local funding units (and perhaps even from the electorate), could create at least the appearance of impropriety. Assigning judges to play tax collector erodes confidence in
the judiciary and may seriously jeopardize a defendant's right to a neutral and detached magistrate. [ Id. at 928, 929 N.W.2d 785.]
The letters to which Chief Justice MCCORMACK refers are not part of the record in this case. Even if they were, they would not affect the outcome of this case. While we agree that use of the funds generated pursuant to MCL 769.1k(1)(b)(iii ) to finance the operations of the sentencing judge's court, coupled with intense pressure placed on that court by its local funding unit, could create, at a minimum, an appearance of impropriety, anecdotal evidence from a few judges fails to establish that "no set of circumstances exists under which [ MCL 769.1k(1)(b)(iii ) ] would be valid. The fact that the ... [statute] might operate unconstitutionally under some conceivable set of circumstances is insufficient...." Council of Organizations , 455 Mich. at 568, 566 N.W.2d 208 (quotation marks and citation omitted). Rather, such pressure calls into question the conduct of the local funding units, as MCL 769.1k(1)(b)(iii ), on its face, does not address how the funds are to be utilized.
We acknowledge the impassioned dissent of our colleague, and to the extent that it rests on anecdotal evidence submitted in Cameron , we, again, agree with Chief Justice McCormack ’s assessment of that material. There seems to be a growing consensus that the court-financing scheme requires legislative reform. Defendant attached to his appellate brief State Court Administrative Office data on all court costs imposed and collected under MCL 769.1k from 2016 to 2018, not just those imposed and collected under the authority of MCL 769.1k(1)(b)(iii ), and a copy of the April 8, 2019 interim report of the Trial Court Funding Commission, which makes a very strong case for amendment of Michigan's court-funding scheme but does not affect our analysis of defendant's argument that the statute at issue is unconstitutional on its face. Like Chief Justice McCormack , however, we agree that the Trial Court Funding Commission's Interim Report shows great potential to reduce the pressure some judges have experienced, and we likewise urge the Legislature to take its recommendations seriously.
Like the panel that decided Alexander , "[w]e leave open the question whether a successful as-applied challenge could be made against the constitutionality of this statute, as there appear to be general grounds for concern related to the constitutionality of this statute regarding the manner of funding trial courts in Michigan and pressures placed by some local funding units on district court judges to ensure their courts are well-funded." Alexander , unpub. op. at 7 n. 8 (quotation marks and citation omitted).
Finally, defendant argues that MCL 769.1k(1)(b)(iii ) is unconstitutional because, by enacting it, the Legislature "effectively created a funding system for our courts that interferes with the judiciary's obligation to maintain impartiality in criminal proceedings and its authority to maintain and administer rules regulating trial judges’ impartiality."
"[I]n determining whether [an] Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the extent to which it prevents ... [one] [b]ranch from accomplishing its constitutionally assigned functions." Nixon v. Administrator of Gen. Servs. , 433 U.S. 425, 443, 97 S. Ct. 2777, 53 L. Ed. 2d 867 (1977). The gravamen of defendant's argument is that MCL 769.1k(1)(b)(iii ) prevents the judicial branch "from accomplishing its constitutionally assigned functions," by rendering it impossible for any trial judge in the state to operate in accordance with his or her oath of office and the constitutional mandates of due process. However, as already explained, and as a panel of this Court explained in Alexander , "defendant has not shown that this statute creates a situation where there exists no set of circumstances under which a judge in this state is impartial," nor has he "shown that all trial judges must be disqualified" because the statute "creates a financial interest in the judiciary to cause them to ignore their constitutional mandates." Alexander , unpub. op. at 15. Further, although MCL 769.1k(1)(b)(iii ) generates revenue, Cameron , 319 Mich. App. at 224, 900 N.W.2d 658, nothing in the plain language of the statute "direct[s] the flow of money or create[s] a funding system for the trial courts ...." Alexander , unpub. op. at 15. For these reasons, defendant's separation-of-powers argument does not establish that the Legislature has made it impossible for trial courts to fulfill their constitutional mandates or that MCL 769.1k(1)(b)(iii ) is facially unconstitutional. Id.
Affirmed.
Sawyer, J., concurred with Beckering, J.
Shapiro, P.J. (dissenting).
I respectfully dissent and would hold that MCL 769.1k(1)(b)(iii ) is unconstitutional.
This "tax" case becomes much clearer once we set aside the fact that all the "taxpayers" are convicts. Of course, their status is central to the question before us, and I will return to it. But the fact that they have all been convicted of criminal offenses acts as a veil, blurring our consideration of what is in fact an unconstitutional tax.
Consider the hypothetical adoption of a new statewide tax that is not limited to convicts. The statute defining it directs trial courts to assess each person in their locality a per capita share of the cost to operate the courts (on top of what is already paid in income, property, and sales taxes). The amount of this court-funding tax is undefined in the statute, and unlike any other statewide tax, the amount that must be paid will depend on which county or city the taxpayer lives in. Moreover, even within a single locality, the tax assessors will retain discretion to vary the tax from person to person as they see fit. This hypothetical statute further provides that if the tax is not paid on the due date, a 20% penalty shall be automatically and immediately imposed. Finally, if someone fails to pay, they will be ordered to appear at the tax collector at a certain time and date to prove that they are indigent. If they fail to show up at the time and place ordered, or the tax collector concludes that they are able to pay, they are subject to arrest and incarceration.
I doubt that anyone in the state would consider such a tax constitutionally sound, yet it accurately describes the tax scheme imposed by MCL 769.1k(1)(b)(iii ) and the related statutory provisions. The scheme violates due process, allows the tax to vary from county to county and even from judge to judge, and it infringes on the authority of the judiciary as a coequal branch of government. When we add to the facts that the judiciary is the tax assessor, the tax collector, the beneficiary of the taxes, and vested with the authority to promptly incarcerate those who fail to pay, the question of constitutionality seems almost quaint.
I also conclude that taxing court costs is inconsistent with the separation of powers, not because the Legislature lacks the authority to delegate as was argued in People v. Cameron , 319 Mich. App. 215, 900 N.W.2d 658 (2017), but because the judiciary cannot be legislatively commanded to perform the legislative function of determining the amount of a tax and the executive function of enforcing it. In addition, I would conclude, contrary to Cameron , that the tax violates the Distinct Statement Clause, which requires that "[e]very law which imposes ... a tax shall distinctly state the tax." Const. 1963, art. 4, § 32 (emphasis added). I cannot construe a statewide tax that varies from county to county, city to city or possibly from judge to judge, as having "distinctly state[d] the tax." Nor is a tax distinctly described by indicating that the amount must be "reasonable."
So why is it different when the only persons burdened with this tax are those convicted of crimes? How can we uphold such a "tax"? If the sole basis to do so is that these taxpayers have been convicted of a crime, then the notion that this is a tax, rather than a fine, collapses. I recognize that in People v. Konopka (On Remand) , 309 Mich. App. 345, 372-373, 869 N.W.2d 651 (2015), a panel of this Court opined that the language of MCL 769.1k(1)(b)(iii ) "does not reflect an intent by the Legislature to make the imposition of court costs a criminal punishment" because the statute "does not refer to a fine but instead provides for the imposition of costs reasonably related to the actual costs incurred in the operation of the court." (Emphasis omitted). "But legislative labeling cannot preclude judicial determination, or excuse a court from its responsibility to give realistic construction to terms employed in statutes." People v. Barber , 14 Mich. App. 395, 401, 165 N.W.2d 608 (1968). Simply changing the nomenclature from "fine" to "costs" does not alter the nature or the effect of the charge imposed. More to the point, the Legislature's allowance of costs without any limitation on the amount did not arise from a nonpunitive intent, but to execute an end-run around Michigan's constitutional provision—in effect since 1835—that penal fines may not be used to financially support the courts. Using the term "costs" masks the punitive nature of the assessment but does not change it. MCL 769.1k(1)(b)(iii ) requires courts to do exactly what our several constitutions have all barred—take money from convicted defendants and use it to fund the courts’ operations, including paying judicial salaries.
Const 1963, art. 8, § 9 provides:
All fines assessed and collected in the several counties, townships and cities for any breach of the penal laws shall be exclusively applied to the support of ... public libraries, and county law libraries as provided by law.
In Bd. of Library Comm'rs of the Saginaw Pub. Libraries v. Judges of the 70th Dist. Court , 118 Mich. App. 379, 389, 325 N.W.2d 777 (1982), it was held that monies obtained through civil fines, i.e., fines imposed for actions that are not punishable by imprisonment, are not subject to this constitutional limitation given its reference to "penal laws."
Indeed, many judges do not accept this linguistic pretense and have, in fact, experienced quite the opposite. It is either naïve or insincere to suggest that local judges are not pressured by local government officials to increase their "contribution" to the general fund and that this has no effect on a judge's decision regarding whether to assess costs and in what amount. Should there be any doubt, one need merely review the brief and exhibits submitted by the Michigan District Judges Association in its amicus brief to the Supreme Court in People v. Cameron , 504 Mich. 927, 929 N.W.2d 785 (2019). The heading of one section of the brief reads, " MCL 769.1k(1)(b)(iii) creates a conflict of interest for every judge in this State who has to report to the court's funding unit about the revenues generated to operate the court and the county." It goes on to point out that in our system of an elected judiciary, a local judge who does not assess sufficient court costs to satisfy the municipality runs a real risk of losing their position. As one judge stated, "[T]here is a direct relationship between maintaining court funding and a judge's reelection." Another judge recounted that her municipality threatened to evict the court from the courthouse unless the court generated more revenue through assessments on criminal defendants. Other judges reported that they were told by their funding units that unless their court generated more revenue, its budget would be slashed. Yet another judge noted that her court's budget is not predicated on the needs of the court's operation "but is tied exactly to the amount of revenue we generate through fines and costs." Thus, there is an ongoing incentive to continue and expand the amount and collection of costs assessed against criminal defendants.
Contrast this situation to Principle 1.5, Court Funding and Legal Financial Obligations, established by the National Center for State Courts’ National Task Force on Fines, Fees and Bail Practices:
Courts should be entirely and sufficiently funded from general governmental revenue sources to enable them to fulfill their mandate. Core court functions should generally not be supported by revenues generated from court-ordered fines, fees, or surcharges. Under no circumstances should judicial performance be measured by, or judicial compensation be related to, a judge's or a court's performance in generating revenue. A judge's decision to impose a legal financial obligation should be unrelated to the use of revenue generated from the imposition of such obligations. Revenue generated from the imposition of a legal financial obligation should not be used for salaries or benefits of judicial branch officials or operations, including judges, prosecutors, defense attorneys, or court staff, nor should such funds be used to evaluate the performance of judges or other court officials. [National Center for State Courts, Principles on Fines, Fees, and Bail Practices , p. 3, available at < https://www.ncsc.org/__data/assets/pdf_file/0016/1609/principles-fines-fees.ashx.pdf> (accessed March 25, 2021) [https://perma.cc/6Y88-AEMM].]
When court costs were first imposed, the amounts to be assessed were specifically set forth by statute and were de minimis. For instance, the amounts at issue in Bd. of Library Comm'rs of the Saginaw Pub. Libraries v. Judges of the 70th Dist. Court , 118 Mich. App. 379, 387, 389, 390, 325 N.W.2d 777 (1982), were a $5 judgment fee and an additional $3 fee imposed on certain cases. I would agree that such a de minimis sum need not trigger constitutional review. However, Saginaw Pub. Libraries went on to say that "[a] fee which ... would be considerably greater than [the $5 fee] involved here might offend the constitutional or statutory provisions," id. at 389, 325 N.W.2d 777, and that when one also considers thesometimes-imposed $3 fee in addition to the $5 judgment fee, i.e., a total of $8, the sum was "closer to the line, [but] the Legislature has not exceeded a reasonable base cost that may be assessed in all cases," id. at 390, 325 N.W.2d 777. That sum, which this Court concluded was "closer to the line," amounts to $22 in present value. However, these modest assessments skyrocketed following the adoption of MCL 769.1k in 2005 which authorized imposition of court costs in criminal cases of "[a]ny cost in addition to the minimum state cost...." MCL 769.1k(1)(b)(ii ), as added by 2005 PA 316.
See United States Department of Labor, Bureau of Labor Statistics, CPI Inflation Calculator < https://www.bls.gov/data/inflation_calculator.htm> (accessed March 25, 2021) [https://perma.cc/P8F5-ZTGJ].
In People v. Sanders , 296 Mich. App. 710, 715, 825 N.W.2d 87 (2012), overruled on other grounds by People v. Cunningham , 496 Mich. 145, 852 N.W.2d 118 (2014), we held that court costs of $1,000 were not "obviously unreasonable," but we made no reference to Saginaw Pub. Libraries or to its conclusion that court costs in excess of $8 might be constitutionally excessive.
If these assessments were genuinely a tax, they would be applied to all litigants, or at least to all nonprevailing litigants, and not just to convicted defendants. There is no rational basis to apply the fees only to convicted defendants other than the fact that, having broken the law, they may be punished. And as persons convicted of a crime, they have little, if any, standing in the political process or public opinion and so can be forced to pay extraordinary sums to the government, compelled under the threat of further incarceration. In other words, they are a group of people whose protests against these "taxes" are unlikely to be heard, let alone addressed. But the fact that the individuals subject to this tax are essentially unrepresented in the legislative and executive branches should heighten, rather than lessen, the care with which we address the constitutional question.
It would be difficult to argue that imposing a substantial tax on mostly indigent people is grounded in sound revenue planning. Moreover, it is a uniquely expensive tax to enforce. According to the Brennan Center, the cost of collecting court costs, including jailing nonpayers who have not obtained a court-ordered waiver, constitutes 41 cents out of every dollar collected. In contrast, the IRS "spends just $0.34 for every hundred dollars in taxes collected." Brennan Center for Justice, The Steep Costs of Criminal Justice Fees and Fines (2019), p. 9, available to download at < https://www.brennancenter.org/our-work/research-reports/steep-costs-criminal-justice-fees-and-fines> (accessed March 25, 2021) [https://perma.cc/2HV7-MMPJ].
Nor is it necessarily wise criminal-justice policy. As the amicus brief observes, "Far from being an effective measure of public safety, the imposition of these costs leaves poor defendants increasingly unable to function safely in society, as they face warrants and other barriers to stable employment, caused by their inability to pay."
The state points out that judges do not personally receive funds as a result of cost assessments. However, institutions, just like people, have financial interests. And those financial interests become the concern of the individuals assigned the task of assessing and collecting the necessary funds. When a district court is threatened with having its funding cut because it has not imposed high enough court costs, it has an effect on those who must determine the amount of those costs, namely judges. Making judges impose and collect taxes from those who appear before them exposes them to the "temptation ... not to hold the balance nice, clear and true between the State and the accused...." Tumey v. Ohio , 273 U.S. 510, 532, 47 S. Ct. 437, 71 L. Ed. 749 (1927). At a minimum, there is an appearance of impropriety. As Justice Scalia has observed, "it makes sense to scrutinize governmental action more closely when the State stands to benefit." Harmelin v. Michigan , 501 U.S. 957, 979 n. 9, 111 S. Ct. 2680, 115 L.Ed.2d 836 (1991) (opinion by Scalia, J.). A system that funds a branch of government by taking, under threat of additional incarceration, large sums from persons convicted of crimes, many, if not most, of whom are indigent and wholly without political influence, deserves such "close" judicial scrutiny. I agree with the majority that legislative action would be welcome and is needed. But it is the judiciary that demands, collects, and uses the funds obtained. And it is the judiciary that determines whether or not the statute is constitutional.
"Court costs" assessed only from convicted defendants are fines. Because they are not authorized by the statute defining the relevant crime, I would conclude that they may not be imposed. For these reasons, I respectfully dissent and would hold that MCL 769.1k(1)(b)(iii ) is unconstitutional.