Circuit Court LC No. 13-001315-FH
Before: Beckering, P.J., and O'Connell and Borrello, JJ.
criminal proceeding, defendant Shawn Cameron, Jr., comes
before this Court in an appeal of right for a second time. At
issue in the instant appeal is whether the imposition of
court costs under MCL 769.1k(1)(b)(iii) constitutes
an unconstitutional tax. Defendant is not the first person to
challenge the constitutionality of MCL
769.1k(1)(b)(iii) on this basis; however, there are
no published opinions on the issue. We conclude that although
it imposes a tax, MCL 769.1k(1)(b)(iii) is not
unconstitutional, and we affirm the trial court's
assessment of court costs.
PERTINENT FACTS AND PROCEDURAL HISTORY
convicted defendant of assault with intent to do great bodily
harm less than murder, MCL 750.84, based on his role in an
attack on a woman over a dispute regarding the payment of
babysitting fees. The trial court sentenced him as a fourth
habitual offender, MCL 769.12, to serve 13 months to 20
years' imprisonment. The court also ordered defendant to
pay certain costs and fees, including $1, 611 in court costs.
appealed by right, arguing that the trial court lacked the
statutory authority to impose court costs, and that the
Legislature's retroactive grant of such authority was
unconstitutional. Relying on binding precedent, a panel of
this Court disagreed. People v Cameron, unpublished
opinion per curiam of the Court of Appeals, issued July 28,
2015 (Docket No. 321387). However, the panel remanded the
case to the trial court for a determination of whether the
court costs imposed were "reasonably related to actual
costs incurred by the trial court, " as required by MCL
remand, the trial court explained the basis for the
imposition of $1, 611 in court costs:
The Washtenaw County Trial Court previously established a
factual basis for the court costs it has imposed on each
felony case at the time of sentencing. The costs were
computed based on the ten year average annual total court
budget of $16, 949, 292 multiplied by the average annual
percentage of all filings which are felonies, i.e., 22%,
which revealed the average annual budget for the Washtenaw
Trial Court's handling of all of its criminal felony
cases. This amount was then divided by the average annual
number of felony filings over [the] last 6 years (2, 217)
which resulted in the average court costs of handling each
felony case as $1, 681. The state costs were subtracted ($68)
as well as an additional $2, resulting in the sum of $1, 611
being assessed per felony case.
basis, the court concluded that the amount of court costs
imposed on defendant was reasonably related to the actual
costs incurred by the trial court.
argues that the court cost assessment provision set forth in
MCL 769.1k constitutes a tax, as opposed to a fee, because it
raises revenue and criminal defendants do not pay court costs
voluntarily. Defendant maintains that the costs cannot be
considered a proportionate fee for services because criminal
defendants are not being provided a service when they are
subjected to prosecution in a court of law. As a tax,
defendant contends that MCL 769.1k(1)(b)(iii) is
unconstitutional because it violates Const 1963, art 4,
§ 32, which provides that "[e]very law [that]
imposes, continues or revives a tax shall distinctly state
the tax." Moreover, defendant claims that there is no
limit on the amount of costs that might be imposed under the
statute. Defendant also argues that MCL 769.1k violates the
separation of powers provision of Const 1963, art 3 § 2.
STANDARDS OF REVIEW
a charge is a permissible fee or an illegal tax is a question
of law." Dawson v Secretary of State, 274
Mich.App. 723, 740; 739 N.W.2d 339 (2007) (quotation marks
and citation omitted). This Court reviews constitutional
questions de novo. People v Conat, 238 Mich.App.
134, 144; 605 N.W.2d 49 (1999). "Statutes are presumed
to be constitutional and must be construed as such unless it
is clearly apparent that the statute is
unconstitutional." In re RFF, 242 Mich.App.
188, 205; 617 N.W.2d 745 (2000). "[T]he burden of
proving that a statute is unconstitutional rests with the
party challenging it." In re Request for Advisory
Opinion Regarding Constitutionality of 2005 PA 71, 479
Mich. 1, 11; 740 N.W.2d 444 (2007).
assessment of court costs against a convicted defendant is
governed by MCL 769.1k(1)(b)(iii), which provides:
(b) The court may impose any or all of the following:
(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
(A)Salaries and benefits for relevant court personnel.
(B)Goods and services necessary for the operation of the
(C)Necessary expenses for the operation and maintenance of
court buildings and facilities.
defendant points out in his brief, separate panels of this
Court have come to different conclusions in unpublished
opinions with respect to whether court costs imposed under
MCL 769.1k(1)(b)(iii) constitute a fee or a tax.
Upon review of the issue, we agree with the analysis and
conclusions set forth in People v Bailey,