8.7Court Costs

MCL 769.1k(1)(b)(iii) authorizes what are generally referred to as “court costs.” It provides:

“Until December 31, 2026, [the court may impose] 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)(b)(iii).

If a court imposes costs under MCL 769.1k(1)(b)(iii), the court must report certain information to the State Court Administrative Office each year. MCL 769.1k(8).

A.Legal History Regarding the Authorization to Impose Court Costs

Effective October 17, 2014, 2014 PA 352 was enacted in response to the Michigan Supreme Court’s decision in People v Cunningham (Cunningham II), 496 Mich 145 (2014), which held that “[t]he circuit court erred when it relied on [former] MCL 769.1k(1)(b)(ii) as independent authority to impose $1,000 in court costs[.]” Cunningham II, 496 Mich at 159. Before being amended by 2014 PA 352, MCL 769.1k(1)(b)(ii) provided simply for the imposition of “[a]ny cost,” and MCL 769.1k did not contain any separate authorization for the imposition of “court costs.” The Cunningham II Court concluded that “[former] MCL 769.1k(1)(b)(ii) [did] not provide courts with the independent authority to impose ‘any cost,’” but instead “allow[ed] courts to impose those costs that the Legislature has separately authorized by statute.” Cunningham II, 496 Mich at 153. Accordingly, the Legislature enacted 2014 PA 352 as “a curative measure that addresses the authority of courts to impose costs under . . . MCL 769.1k[.]” See 2014 PA 352, enacting section 2. The Legislature added MCL 769.1k(1)(b)(iii) to specifically provide for the imposition of court costs. See 2014 PA 352.

B.Factual Basis Required

“MCL 769.1k(1)(b)(iii) independently authorizes the imposition of costs in addition to those costs authorized by the statute for the sentencing offense,” and “[a] trial court possesse[s] the authority under MCL 769.1k, as amended by 2014 PA 352, to order [a] defendant to pay court costs.” People v Konopka (On Remand), 309 Mich App 345, 350, 358 (2015). “However, without a factual basis for the costs imposed, [the Court] cannot determine whether the costs imposed were reasonably related to the actual costs incurred by the trial court, as required by MCL 769.1k(1)(b)(iii).” Konopka, 309 Mich App at 359-360 (remanding for the trial court to establish a factual basis for the imposed costs). See also People v Posey, 334 Mich App 338, 364 (2020), overruled in part on other grounds 512 Mich 317 (2023)¹ (holding “the trial court plainly erred by failing to articulate the factual basis for the court costs imposed,” but declining to remand where it was clear that the trial court relied on the SCAO calculation of the average cost of processing a case in that county, defendant did not preserve the issue with an objection, and defendant failed to demonstrate prejudice on appeal).

C.Constitutional Challenges

The amended version of MCL 769.1k does not violate a defendant’s due process or equal protection rights; nor does it violate the constitutional prohibition on ex post facto punishments or the principle of separation of powers. People v Konopka (On Remand), 309 Mich App 345, 365, 367-370, 376 (2015).

Furthermore, “although it imposes a tax” without expressly stating that it does, MCL 769.1k(1)(b)(iii) “is neither obscure nor deceitful, and therefore, it does not run afoul of the Distinct Statement Clause of Michigan’s Constitution”; moreover, “because a trial court must establish a factual basis for its assessment of costs to ensure that the costs imposed are reasonably related to those incurred by the court in cases of the same nature, the legislative delegation to the trial court to impose and collect the tax contains sufficient guidance and parameters so that it does not run afoul of the separation-of-powers provision of” the Michigan Constitution. People v Cameron, 319 Mich App 215, 236 (2017).

In People v Johnson, 336 Mich App 688, 691 (2021), the defendant brought a facial challenge to MCL 769.1k(1)(b)(iii), arguing that it “deprives criminal defendants of their due-process right to an impartial decisionmaker and violates separation-of-powers principles.” The Court held that MCL 769.1k(1)(b)(iii) is not facially unconstitutional. Johnson, 336 Mich App at 691 (leaving “open the question whether a successful as-applied challenge could be made”). Judges are not rendered impartial by the statute because rather than granting total discretion, MCL 769.1k(1)(b)(iii) requires costs to be reasonably related to actual costs, it does not authorize trial courts to increase costs imposed as a means for generating more revenue, there is not a “direct nexus between a judge’s compensation and any fees or costs imposed,” and there is no evidence that costs imposed under the statute are “funneled into a special or specific fund to be administered by judges[.]” Johnson, 336 Mich App at 701-702. Further, there is no separation-of-powers violation because the statute does not make “it impossible for trial courts to fulfill their constitutional mandates”; specifically, “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.” Id. at 704-705 (cleaned up).