5.5Costs and Minimum State Costs

MCL 769.1k(1)(b)(ii) (allowing the court to 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[]”) does not provide courts with “the independent authority to impose costs upon criminal defendants.”People v Cunningham (Cunningham II), 496 Mich 145, 147 (2014), rev’g 301 Mich App 218 (2013) and overruling People v Sanders (After Remand), 298 Mich App 105 (2012), and People v Sanders, 296 Mich App 710 (2012). Rather, it “provides courts with the authority to impose only those costs that the Legislature has separately authorized by statute.” Id. at 154. Effective October 17, 2014, 2014 PA 352 amended MCL 769.1k in response to the Michigan Supreme Court’s holding in Cunningham II.¹ In Cunningham II, the Court held that MCL 769.1k(1)(b)— which, at the time, provided for the imposition of “[a]ny cost in addition to the minimum state cost”—did “not provide courts with the independent authority to impose ‘any cost’”; rather, it “provide[d] courts with the authority to impose only those costs that the Legislature has separately authorized by statute.” Cunningham II, 496 Mich at 147, 158 (concluding 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”). 2014 PA 352, in addition to making other revisions to MCL 769.1k, added MCL 769.1k(1)(b)(iii) to provide for the imposition of “any cost reasonably related to the actual costs incurred by the trial court[.]”² The amendments effectuated by 2014 PA 352 “appl[y] to all fines, costs, and assessments ordered or assessed under . . . MCL 769.1k[] before June 18, 2014, and after [October 17, 2014].” 2014 PA 352, enacting section 1 (emphasis supplied)

MCL 769.1k(1)(b)(iii) authorizes the imposition of costs independently of the statute for the sentencing offense, and “[a] trial court possessed the authority under MCL 769.1k, as amended by 2014 PA 352, to order [the] defendant to pay court costs.” People v Konopka (On Remand), 309 Mich App 345, 350, 358 (2015). “However, although the costs imposed [under MCL 769.1k(1)(b)(iii)] . . . need not be separately calculated, . . . the trial court [must] . . . establish a factual basis” demonstrating that “the court costs imposed [are] ‘reasonably related to the actual costs incurred by the trial court[.]’” Konopka (On Remand), 309 Mich App at 359-360, quoting MCL 769.1k(1)(b)(iii).

“If a defendant is determined to be responsible or responsible ‘with explanation’ for a state civil infraction, the judge or district court magistrate may order the defendant to pay . . . costs as provided in [MCL 600.8827(3)][.]” MCL 600.8827(2). “In the order of judgment, the judge or district court magistrate may grant a defendant permission to pay . . . costs . . . within a specified period of time or in specified installments.” Id. “Otherwise, the . . . costs . . . are payable immediately.” Id.

“If a defendant is ordered to pay a civil fine under [MCL 600.8827(2)], the judge or district court magistrate shall summarily tax and determine the costs of the action, which are not limited to the costs taxable in ordinary civil actions and may include all expenses, direct and indirect, to which the plaintiff has been put in connection with the civil infraction, up to the entry of judgment.” MCL 600.8827(3). “Costs of not more than $500.00 must be ordered.” Id.

“[I]f the court orders a person convicted of an offense to pay any combination of a fine, costs, or applicable assessments, the court shall order that the person pay costs of not less than the following amount, as applicable:

(a) $68.00, if the defendant is convicted of a felony.

(b) $50.00, if the defendant is convicted of a misdemeanor or ordinance violation.” MCL 769.1j(1). See also MCL 600.8381(4).

The costs imposed under MCL 769.1j(1)(a) constitute a tax, and this tax does not violate the separation of powers requirement under Const 1963, art 3, § 2 or the requirement of Const 1963, art 4, § 32 that “[e]very law which imposes, continues or revives a tax shall distinctly state the tax.” People v Shenoskey, 320 Mich App 80, 83-84 (2017) (applying the analysis of MCL 769.1k(1)(b)(iii) in People v Cameron, 319 Mich App 215 (2017) to MCL 769.1j(1)(a) because the statutes are “closely related”).

“Payment of the minimum state cost is a condition of probation under [MCL 771.1 et seq.]” MCL 769.1j(3). See also MCL 771.3(1)(g) (“[t]he probationer shall pay the minimum state cost prescribed by [MCL 769.1j]”).