1.30Costs¹ 

At the time of sentencing or a delay in sentencing or entry of a deferred judgment of guilt, the court may impose “[a]ny 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,” or “[u]ntil December 31, 2026, any cost 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)(ii)-(iii).

“MCL 769.1k(1)(b)(iii) “is [not] facially unconstitutional.” People v Johnson, 366 Mich App 688, 705 (2021).² “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, . . . to order defendant to pay court costs.” People v Konopka, 309 Mich App 345, 350, 358 (2015). “A trial judge does not have unfettered discretion with respect to the amount of costs to impose under [MCL 769.1k(1)(b)(iii)] 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.” Johnson, 366 Mich App at 700 (quotation marks, alteration, and citation omitted). “[A]lthough the costs imposed . . . need not be separately calculated, . . . the trial court [must] . . . establish a factual basis” demonstrating that “the costs imposed [are] reasonably related to the actual costs incurred by the trial court[.]” Konopka, 309 Mich App at 359-360.

“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.” Johnson, 366 Mich App at 701 (citation omitted; concluding that although MCL 769.1k(1)(b)(iii) “is a revenue-generating statute,” defendant “failed to show that [the statute] also authorizes courts to administer the revenue so collected” or establish that courts ordering the assessments benefit from a portion of the revenue under circumstances where they do not have control over administration of the revenue). “While . . . 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, [defendant failed] to establish that no set of circumstances exist 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.” Johnson, 366 Mich App at 703 (quotation marks, alterations, and citation omitted).

The imposition of court costs under MCL 769.1k(1)(b)(iii) is a tax, rather than a governmental fee, and it must therefore comply with the Distinct-Statement Clause and the separation-of-powers doctrine. People v Cameron, 319 Mich App 215, 236 (2017). “[A]lthough it imposes a tax, MCL 769.1k(1)(b)(iii) is not unconstitutional[.]” Cameron, 319 Mich App at 218.³

MCL 769.34(6) addresses the sentencing guidelines and the duties of the court when sentencing, and it generally authorizes the court to order court costs (“As part of the sentence, the court may also order the defendant to pay any combination of a fine, costs, or applicable assessments.”). However, “MCL 769.34(6) allows courts to impose only those costs or fines that the Legislature has separately authorized by statute[]” and “does not provide courts with the independent authority to impose any fine or cost.” People v Cunningham, 496 Mich 145, 158 n 11 (2014).⁴ For a complete listing of statutes specifically authorizing the imposition of costs, see the Michigan Judicial Institute’s Table of General Costs, Table of Misdemeanor Offenses for Which Costs are Authorized, and Table of Felony Offenses for Which Costs are Authorized.

Further, a defendant may be ordered to pay any additional costs incurred to compel his or her attendance. MCL 769.1k(2). In addition, MCL 769.1k(4) authorizes a court to order that a defendant pay by wage assignment any of the costs authorized in MCL 769.1k(1). A court may provide for the collection of costs imposed under MCL 769.1k at any time. MCL 769.1k(5).

“A defendant must not be imprisoned, jailed, or incarcerated for the nonpayment of costs ordered under [MCL 769.1k] unless the court determines that the defendant has the resources to pay the ordered costs and has not made a good-faith effort to do so.” MCL 769.1k(10). See also MCR 6.425(D)(3) (providing similar preconditions to incarceration for nonpayment in felony proceedings). This determination must be made by a judge; district court magistrates are not authorized to make determinations regarding a defendant’s ability to pay. See MCL 600.8511, MCL 600.8512; MCL 600.8512a, MCL 600.8513 (setting forth authority of district court magistrates without granting authority for making ability to pay determinations).

In addition to any costs specifically authorized by offense-specific statutes, MCL 257.729 provides that “[i]n addition to a fine assessed for the charge . . . when found guilty . . ., the magistrate may also add to any fine and costs levied additional costs incurred in compelling the appearance of the person, which additional costs shall be returned to the general fund of the unit of government incurring the costs.”