The controversial MCL 769.1k that permits a sentencing judge to assess “court costs” has been one of the sticky wickets in Michigan’s ongoing conversation about how Michigan trial courts should be funded. (See for example People v Cunningham, 496 Mich 145 (2014) and the 2019 Trial Court Funding Commission Final Report.)
🚨Whether MCL 769.1k(1)(b)(iii) is facially constitutional will be argued during the Michigan Supreme Court’s March 2023 call in People v Travis Michael Johnson (Docket No. 163073) and People v Edwards (Docket No. 163942).
This post focuses on this part of the Court’s briefing and argument orders which instructed: “The parties shall address: *** and (3) should we find MCL 769.1k(1)(b)(iii) facially unconstitutional under either theory, what remedy follows.” (emphasis added).
That type of question is the Court’s way of asking: Help us write our opinion or order if we choose to go down this road. How should it be framed and what should it say?
The Court invited amicus curiae briefs from the Michigan Senate and the Michigan House of Representatives (filed), the Michigan District Judges Association (not filed), the Criminal Defense Attorneys of Michigan (not filed), the Prosecuting Attorneys Association of Michigan (not filed), the Detroit Justice Center (filed), and the Institute for Justice (filed).
At least 21 other Michigan Supreme Court applications have been abeyed until these two cases are decided. In other words, the constitutional questions are significant.
The remedy-discussion briefing
Back in July 2022, I was very excited to see the Court’s “what remedy follows” question and curious about how the future briefing would approach it.
In a contemporaneous post, I outlined what I considered to be the practical contours that I hoped the briefing would address about the “remedy” question.
The briefing is now in and I confess disappointment with how most—of those who did file—avoided the Court’s larger (scope) question. Are they manifesting that the Court will not find MCL 769.1k(1)(b)(iii) unconstitutional? Do they not understand the question’s statewide reach or the implementation nuances? I will not pretend to know the answer to those questions but it feels very unusual for the Court’s specific question to be skimmed like this.
An unfortunate missed opportunity. I will be interested to see if it is re-visited during arguments.
Here is a look at the question’s briefing.
163073 People v Johnson (filings)
Appellant Johnson’s brief focused its remedy analysis only on his case (page 26):
Mr. Johnson is entitled to reimbursement of the money he paid towards his court costs. Just as in Tumey and Ward, at sentencing Mr. Johnson was deprived of his property by an arbiter whose decision was clouded by the objective risk of bias. Ward, 409 US at 60; Tumey, 273 US at 532-534. To remedy the unconstitutional monetary payment, this Court should order Alpena County to vacate the tax and reimburse Mr. Johnson.
Appellee State of Michigan’s brief acknowledges that more cases are in play but doesn’t propose any concrete remedy guidance (pages 19-20)
This Court has asked what remedy follows should this Court hold § 1k(1)(b)(iii) unconstitutional on either Johnson’s due process theory or this Court’s separation-of-powers theory. Johnson’s answer is that the award of court costs should be vacated and he should be reimbursed any money he has paid.
If this Court holds that § 1k(1)(b)(iii) violates separation-of-powers principles, then the People agree that the appropriate remedy is to vacate the order and refund any money Johnson has paid.
If, however, this Court holds that § 1k(1)(b)(iii) violates due process by creating a potential for bias, then the remedy should be to vacate Johnson’s convictions and sentences altogether, because his conviction would have been obtained in violation of due process. Johnson has repeatedly and unequivocally waived any claim to this remedy, seeking instead that his unconstitutional (according to Johnson) conviction be maintained but that the award of court costs be vacated.
In light of Johnson’s waiver, this limited remedy is appropriate for Johnson. But this Court is not only deciding Johnson’s case, but all cases to follow for similarly situated defendants. Johnson has not attempted any argument that would reconcile his broad constitutional claim with his narrow request for relief. A holding that § 1k(1)(b)(iii) deprives a defendant of an impartial judge would open the door for all other defendants whose appeals are pending to insist that their convictions be overturned due to the violation of due process. [Footnote 5]
[Footnote 5 text] Even defendants whose convictions are final on appeal could seek to have this Court’s ruling applied retroactively, potentially endangering every conviction obtained in this state over the last eight years.
Amicus brief of Michigan Senate & House of Representatives (brief)
Question not addressed
Amicus brief of the Detroit Justice Center, American Civil Liberties Union of Michigan, Street Democracy, Michigan State Planning Body, and Legal Services Association of Michigan (pages 50-51)
If this Court holds that subsection (b)(iii) violates separation of powers principles, it should invalidate that section, vacate the imposition of fees in this case, and apply that remedy prospectively, including to cases currently on direct appeal. No further remedy would seem to be required. Should the Court elect to address the retroactivity of such a decision, the analysis would be governed by People v Maxon, 482 Mich 385, 393; 759 NW2d 817 (2008). Under Maxon, the test for retroactivity for a newly announced rule of criminal procedure examines “(1) the purpose of the new rules; (2) the general reliance on the old rule[;] and (3) the effect of retroactive application of the new rule on the administration of justice.” Id., quoting People v Sexton, 458 Mich 43, 60-61; 580 NW2d 404 (1998).
If this Court holds that subsection (b)(iii) violates due process, the remedy may vary based on the precise nature of this Court’s holding. Were the Court to hold that subsection (b)(iii) violates due process by denying defendants a neutral adjudicator at the guilt stage of a criminal proceeding, then the conviction would need to be vacated. Were the Court to hold that subsection (b)(iii) violates due process by denying defendants a neutral adjudicator only at the sentencing stage, then the portion of the sentence including subsection (b)(iii) fees would need to be vacated. In either case, should this Court elect to address the retroactivity of such a decision, the analysis would be governed by federal constitutional law as set forth in Teague v Lane, 489 US 288, 305–314; 109 S Ct 1060; 103 L Ed 2d 334 (1989). As relevant here, a Teague analysis would render a due process holding retroactive if this Court determined the new rule was “implicit in the concept of ordered liberty.” Id. at 311 (cleaned up). In turn, such an analysis might be affected by whether this Court holds that defendants were denied a neutral adjudicator with respect to their guilt or merely with respect to the costs assessed in their case.
In any event, when determining a remedy, amici strongly urge this Court to make its decision effective immediately rather than allowing it to take effect after some set period of time. The Legislature has known for years—since the issuance of the Commission’s 2019 report at the latest, and again at the end of last term when this Court granted the leave application in this case that subsection (b)(iii) was problematic and constitutionally suspect. It has had time to address the problem, but has instead continued to extend the sunset date for subsection (b)(iii). After this Court heard oral argument on the leave application in this case last year, a bill was introduced, but not passed, to fund the courts using state money last term. 2022 HB 5957. This shows that the Legislature is capable of acting promptly to address a ruling of this Court if they need to do so. Subsection (b)(iii) has violated separation of powers principles and the rights of the criminally accused for too long while the Legislature stood idly by and watched. This unconstitutional tax must be brought to an immediate end.
Amicus brief of the Institute for Justice took a narrow approach like Appellant Johnson and disagrees with the Appellee State of Michigan’s claims that a ruling would upset other convictions (pages 18-20)
If MCL 769.1k(1)(b)(iii) facially violates due process by creating an unconstitutional financial interest, this Court should declare the statute unconstitutional, vacate Defendant Johnson’s sentence, and if necessary remand for re-sentencing.
When confronted by appeals from improper sentences—appeals that do not question the underling convictions—this Court routinely vacates sentences and remands for re-sentencing. See, e.g., People v Reynolds, 508 Mich 388, 398; 975 NW2d 821 (2021). Indeed, this Court has held that, if a sentencing has violated due process, and the violation prejudiced the defendant, then “we would remand the case.” People v Eason, 435 Mich 228, 251; 458 NW2d 17 (1990).
Thus, the correct remedy here is to declare Defendant Johnson’s sentencing invalid and to remand for sentencing that does not apply MCL 769.1k(1)(b)(iii). This would not affect his guilty plea, and it would have no effect on any other determinations of guilt or innocence. [footnote 7] Defendant Johnson appealed his sentence to pay costs, not his guilty plea. See AA 42a. The court costs he appeals are not automatically imposed as a result of a guilty plea or conviction. Rather, the trial judge chooses whether to impose them “at the time of the sentencing.” MCL 769.1k(1). And it is at sentencing that the trial judge has complete discretion over whether to impose subsection (b)(iii) costs at all. MCL 769.1k(b) (“The court may impose any or all of the following . . . .” (emphasis added)). If Defendant Johnson prevails in this challenge to his sentencing, his sentence should be vacated and, if necessary, his case should be remanded for re-sentencing.
The People argue that any holding that MCL 769.1k(1)(b)(iii) violates due process would necessarily invalidate both Defendant Johnson’s sentence and his conviction. People Br 20. But that’s not right. First, as mentioned, Defendant Johnson appealed only his sentence. And second, the act of sentencing is distinct from the act of imposing guilt or innocence. While a court could be tempted to find a defendant guilty in order to financially benefit from court costs, that possibility is distinct from whether a court will be tempted to impose court costs in order to financially benefit from court costs. Which is to say that it would be a different case in which this court would have to decide that MCL 769.1(k)(iii) incentivizes trial courts to find defendants guilty.
Ultimately, all the parties agree that the correct remedy would be to declare MCL 769.1k(1)(b)(iii) unconstitutional and vacate Defendant Johnson’s current sentence imposing costs. If further sentencing remains to be done, this Court should also remand this case for further sentencing.
[Footnote 7 text] In a footnote, the People suggest the retroactive effect of ruling for Defendant Johnson on due process grounds could be to invalidate other defendants’ convictions. (See People Br 20. n 5) Although Amicus is not an expert in Michigan retroactivity law, “Michigan law has regularly declined to apply new rules of criminal procedure to cases in which a defendant’s conviction has become final.” People v Maxson, 482 Mich 385, 392–393, 759 NW2d 817 (2008).
Briefs were not filed by invited amici Michigan District Judges Association, the Criminal Defense Attorneys of Michigan, or the Prosecuting Attorneys Association of Michigan.
163942 People v Edwards (filings)
Appellant Edward’s brief focused its remedy analysis only on his case (page 29):
Finally, Mr. Edwards is entitled to reimbursement of the money he paid towards his court costs. Just as in Tumey and Ward, at sentencing Mr. Edwards was deprived of his property by an arbiter whose decision was clouded by the objective risk of bias. Ward, 409 US at 60; Tumey, 273 US at 532-534. To remedy the unconstitutional monetary payment, this Court should order Wayne County to vacate the tax and reimburse Mr. Edwards.
Appellee State of Michigan’s brief simply adopted the brief filed in the companion Johnson case. (brief)
So what remedy should follow if the Michigan Supreme Court finds MCL 769.1k(1)(b)(iii) facially unconstitutional?
It was a $29 million question in 2021.
“Don’t assess that cost in future cases” is an easy response.
“Easy” is also suggesting: For the named defendants, issue a remand order for the trial court to modify the judgment of sentence by voiding the unconstitutional cost and voiding any original cost payments already processed by the trial court, and issue a refund within 45 days. Similarly: Modify any active wage assignment orders or orders to remit prisoner funds.
Particularly with so many companion cases abeyed and the $29 million+ collected in 2021, I still believe that the Court’s briefing/argument question requires thoughtful consideration of these variables before these cases are resolved by written opinion or order:
- What about the thousands of other active trial court files where there already was a (hypothetically unconstitutional) local court cost assessment and it remains unpaid?
- Partially unpaid? In warrant status? (Spoiler alert: This is how constructive, frontline trial court staff meetings can play out when they are held.)
What should happen with all of the other files in the other courts? What remedy should follow?
If other court files will be financially adjusted, independent auditors will want a justifying companion order. Michigan’s Trial Court Financial Management Guidelines also require employees to enter a reason for adjusting financial records in any case management system. [Section 6-05(C)(6)]
So what should a plain-language and global administrative order from the Michigan Supreme Court authorize?
- Should all trial courts be administratively ordered to review their files and make financial adjustments?
- Should there be financial adjustments on files that were paid, closed, and no appeal was filed? And even if not, should any supreme court order still mention that point with the goal of proactively increasing litigant and public understanding? (For the love of all that is good, give trial court staff and managers a higher and clearly understood directive to point to.)
Would it be helpful for the supreme court order to say what the trial courts are supposed to do and volunteer what the trial courts cannot do so that public expectations are better managed? Like non-lawyer Brené Brown counsels: Clear is kind. Unclear is unkind.
- If a defendant is owed a refund on a partial payment but has an outstanding balance on other fines/fees assessments, does the trial court process a direct refund to the defendant or simply void the earlier partial payment and re-apply it to the other valid but still unpaid assessments?
- What if a 20% late fee (MCL 600.4803) was added to the unpaid assessment? Should the late fee be removed on top of any unpaid unconstitutional assessment? Cashiers and clerks do not enjoy that type of decision-making discretion; they need a court order. The higher, the better!
- What if a credit or debit card convenience fee was added to an earlier partial payment made on the now-unconstitutional assessment? Money order or cashier check costs? Would any type of “costs-plus” refund from the trial court be possible?
- Should any repayment from a trial court include interest? Is that possible? Amount?
- Who is owed any refund if a partial payment came from an applied bond that was posted by a third party? Should that bond variable matter? (I do not think it should but I can imagine many telephone and front-counter conversations/debates with trial-court staff about it.)
- When does any remedy become “effective” and what is the deadline for trial courts to fully implement it?
- Should completion be reported to SCAO?
- If refunds are owed and when the proper payee cannot be identified or located, can the unclaimed funds remain with the funding unit or must they be escheated to the State of Michigan as unclaimed property?
Perhaps some justices will ask during the March argument.