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STATE OF MICHIGAN

IN THE SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

V

SHAWN LO VETO CAMERON, JR,

Defendant-Appellant. I ---------------

Supreme Court No.155849

Court of Appeals No. 330876

Trial Court No. 13-1315-FH

BRIEF BY PROSECUTING ATTORNEYS ASSOCIATION OF MICHIGAN AS AMICUS CURIAE IN SUPPORT OF THE PEOPLE OF THE STATE OF MICHIGAN

MELISSA A. POWELL President Prosecuting Attorneys Association of Michigan

JOHN A. MCCOLGAN, JR. (P37168) PROSECUTING ATTORNEY

NATHAN J. COLLISON (P76031) CHIEF APPELLATE ATTORNEY

Submitted by:

MELISSA J. HOOVER (P75921) Assistant Prosecuting Attorney Saginaw County Prosecutor's Office 111 South Michigan A venue Saginaw, Michigan 48602 (989) 790-5330

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TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES .............................................................................................. i, ii, iii, iv

COUNTERSTATEMENT OF JURISDICTION ............................................................................ v

COUNTERSTATEMENT OF QUESTIONS INVOLVED .......................................................... vi

COUNTERSTATEMENT OF FACTS ........................................................................................... 1

ARGUMENTS

I. The assessment of costs authorized pursuant to MCL 769.lk(l)(b)(iii) is properly classified as a fee because (1) costs collected in criminal cases fund the operation of courts, which are inherently regulatory in nature; (2) any revenue that results from the collection of costs assessed in a criminal case does not go into the State's general fund and does not exceed the costs of regulation; (3) any benefit derived by the general public as a result of the collection of costs is purely incidental, and ( 4) a person can voluntarily opt not to engage the services of the criminal court system by not committing criminal offenses ................................................................................................................................. 2

II. Assuming arguendo that MCL 769.lk(l)(b)(iii) does create a tax, the tax is not obscure or deceitful, and it does not impermissibly delegate the Legislature's taxing power to the Judiciary; thus, MCL 769.lk(l)(b)(iii) does not violate the Distinct Statement Clause or the Separation of Powers Clause ........................................................................................... 15

SUMMARY AND RELIEF SOUGHT ............................................................................................ 23

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INDEX OF AUTHORITIES

CASES: Page

Abela v Gen Motors Corp, 469 Mich 603; 677 NW2d 325 (2004) .................................................. 10

Am Landfill, Inc v Stark/Tuscarawas/Wayne Joint Solid Waste Mgt Dist, 166 F3d 835 (CA 6, 1999) ................................................................................................................................................. 10

Attorney General v Preston, 56 Mich 177; 22 NW 261 (1885) ...................................................... .20

Bolt v City of Lansing, 459 Mich 152; 587 NW2d 264 (1998) ........................................................ 2, 3, 11

Bray v Dep't of State, 418 Mich 149, 162; 341 NW2d 92 (1983) .................................................... 3

Caterpillar, Inc v Dep't a/Treasury, 440 Mich 400; 488 NW2d 182 (1992) .................................. .15

City of Ann Arbor v Nat'! Ctr for Nfjg Sciences, Inc, 204 Mich App 303; 514 NW2d 224 (1994) .. 21

Dcrwson v Secretary of State, 274 Mich App 723; 739 NW2d 339 (2007) ..................................... .4, 15, 16

Doe v Snyder, 101 F Supp 3d 672 (ED Mich, 2015) ........................................................................ 9, 10

Dukesherer Farms, Inc v Director, Dep't of Agriculture (After Remand), 405 Mich 1; 273 NW2d 877 (1979) ......................................................................................................................................... 7, 8, 11

Foreman v Oakland County Treasurer, 57 Mich App 231; 226 NW2d 67 (1974) .......................... 9

Frederick v Presque Isle Co Circuit Judge, 439 Mich 1; 476 NW2d 142 (1991) ............................ 12

Gillette Commercial Operations North America & Subsidiaries v Dep't of Treasury, 312 Mich App 394; 878 NW2d 891 (2015) ...................................................................................................... 14, 16

Gorney v City of Madison Hts, 211 Mich App 265; 535 NW2d 263 (1995) .................................... 8, 9

Graham v Kochville Twp, 236 Mich App 141; 599 NW2d 793 (1999) ........................................... 3, 8

Hedgepeth v Tennessee, 215 F3d 608, 612 (CA 6, 2000) ................................................................. 9

Hoffman v Otto, 277 Mich 437; 269 NW 225 (1936) ...................................................................... .21

Huron-Clinton Metro Auth v Eds a/Supervisors a/Five Cos, 300 Michl; 1 NW2d 430 (1942) .. .21

In re Complaint of Rovas Against SBC Michigan, 482 Mich 90; 754 NW2d 259 (2008) .............. .19, 20

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In re k!anufacturer's Freight Forwarding Co, 294 Mich. 57; 292 NW 678 (1940) ........................ 19

In re Southard, 298 Mich 75; 298 NW 457 (1941) .......................................................................... 20

Iroquois Properties v City of E Lansing, 160 Mich App 544; 408 NW2d 495 (1987) .................... 8, 11

Judicial Attorneys Ass'n v State, 459 Mich 291; 586 NW2d 894 (1998) ......................................... 20, 21

J\;Jarbury v J\;Jadison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803) .......................................................... 19

1\;Jerrelli v City of St Clair Shores, 355 Mich 575; 96 NW2d 144 (1959) ...................................... ..4

J\!JcNeil v Charlevoix Co, 484 Mich 69; 772 NW2d 18 (2009) ........................................................ .21

lv!istretta v United States, 488 US 361; 109 S Ct 647; 102 L Ed 2d 714 (1989) .............................. 20

1\1ichigan Consol Gas Co v State, 72 Mich App 426; 250 NW2d 85 (1976) ................................... 18

Oakland Co Taxpayers' League v Oakland Co Supervisors, 355 Mich 305; 94 NW2d 875 (1959) ............................................................................................................................................................ 20

People v Boomer, 250 Mich App 534,538; 655 NW2d 255 (2002) ................................................ 15

People v Cameron, 319 Mich App 215; 900 NW2d 65 8 (2017) ...................................................... passim

People v Cunningham, 496 Mich 145; 852 NW2d 118 (2014) ....................................................... .17

People v Earl, 495 Mich 33; 845 NW2d 721 (2014) ........................................................................ 6

People v Harper, 479 Mich 599; 739 NW2d 523 (2007) ................................................................. 15

People v Kammeraad, 307 Mich App 98; 858 NW2d 490 (2014) ................................................... 5

People v Konopka (On Remand), 309 Mich App 345; 869 NW2d 651 (2015) ............................... .4, 15, 17, 18

People v J\;JcKinley, 496 Mich 410; 852 NW2d 770 (2014) ............................................................. 15

People v Pennington, 240 Mich App 188; 610 NW2d 608 (2000) .................................................. 7

People v Piasecki, 333 Mich 122; 52 NW2d 626 (1952) ................................................................. 20

People v Sadows, 283 Mich App 65; 768 NW2d 93 (2009) ............................................................. 15

Phillips v Mirac, Inc, 470 Mich 415; 685 NW2d 174 (2004) (Phillips II) ...................................... .15

Prod Credit Associations of Lansing v State, Dept of Treasury, Revenue Div, 404 Mich 301; 273

NW2d 10 (1978) ............................................................................................................................... 18

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Saginaw Co v John Sexton Corp ofkfichigan, 232 Mich App 202; 591 NW2d 52 (1998) ............. 2, 3

San Juan Cellular Telephone Co v Public Service Commission of Puerto Rico, 967 F2d 683 (CA 1, 1992) ............................................................................................................................................. 9

Soap & Detergent Ass'n v Natural Resources Comm, 415 Mich 728; 330 NW2d 346 (1982) ....... .20

Taylor Commons v City ofTaylor, 249 Mich App 619; 644 NW2d 773 (2002) ............................. .15

UAWv Green, 498 Mich 282; 870 NW2d 867 (2015) ..................................................................... 21

USA Cash #£1, Inc v City of Saginaw, 285 Mich App 262; 776 NW2d 346 (2009) ........................ 3, 13

Vernor v Secretary of State, 179 Mich 157; 146 NW 338 (1914) .................................................... 3, 11

Westervelt v Natural Resources Comm, 402 Mich 412; 263 NW2d 564 (1978) .............................. 21

Westlake Transp, Inc v Pub Serv Comm, 255 Mich App 589; 662 NW2d 784 (2003) .................... 7, 13, 14

Young v Ann Arbor, 267 Mich 241; 255 NW 579 (1934) ................................................................. 20

CONSTITUTIONS:

Const 1963, a1i 4, § 1 ........................................................................................................................ 19

Const 1963, art 4, § 32 ...................................................................................................................... 14, 16

Const 1963, art 9, § 1 ........................................................................................................................ 21

Const 1963, art 9, § 2 ..................................................................................................................... : .. 21

OTHER AUTHORITIES:

2014 PA 352 ..................................................................................................................................... 17

1927 PA 175 ..................................................................................................................................... 17

Black's Law Dictionary (10th ed) .................................................................................................... .4, 5, 6, 11

STATUTES:

MCL 18.351 ...................................................................................................................................... 6

MCL 18.368 ...................................................................................................................................... 6

MCL 600.551 .................................................................................................................................... 12

MCL 600.1114 .................................................................................................................................. 12 lll

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MCL 600.1231 .................................................................................................................................. 12

MCL 769.lk ...................................................................................................................................... 13, 17

MCL 769.lk(l) ................................................................................................................................. 13

NfCL 769. lk(l)(b)(iii) ....................................................................................................................... passim

MCL 769.lk(8)(c) ............................................................................................................................. 17

MCL 769.lk(8)(d) ............................................................................................................................. 17

MCL 769.lk(9) ................................................................................................................................. 17

MCL 775.16 ...................................................................................................................................... 12

MCL 780.904 .................................................................................................................................... 6

MCL 780.904(1) ............................................................................................................................... 6

MCL 780.904(2) ............................................................................................................................... 6

N1CL 780.905(1) ............................................................................................................................... 6

MCL 780.905(3) ............................................................................................................................... 6

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COUNTERSTATEMENT OF JURISDICTION

Amicus concurs with and adopts the Counterstatement of Jurisdiction by the People of

the State of Michigan.

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COUNTERSTATEMENT OF QUESTION INVOLVED

I. IS THE ASSESSMENT OF COSTS AUTHORIZED PURSUANT TO MCL 769.lk(b)(iii) PROPERLY CLASSIFIED AS A FEE BECAUSE (1) COSTS COLLECTED IN CRIMINAL CASES FUND THE OPERATION OF COURTS, WHICH ARE INHERENTLY REGULATORY IN NATURE; (2) ANY REVENUE THAT RESULTS FROM THE COLLECTION OF COSTS ASSESSED IN A CRIMINAL CASE DOES NOT GO INTO THE STATE'S GENERAL FUND AND DOES NOT EXCEED THE COSTS OF REGULATION; (3) ANY BENEFIT DERIVED BY THE GENERAL PUBLIC AS A RESULT OF THE COLLECTION OF COSTS IS PURELY INCIDENTAL, AND (4) A PERSON CAN VOLUNTARILY OPT NOT TO ENGAGE THE SERVICES OF THE CRIMINAL COURT SYSTEM, AND THUS, AVOID THE OBLIGATION TO PAY COSTS, BY NOT COMMITTING CRIMINAL OFFENSES?

Amicus says "YES". Plaintiff-Appellee says "YES". Defendant-Appellant says "NO". Court of Appeals says "NO". Trial Court says "YES".

II. ASSUMING ARGUENDO THAT MCL 769.lk(l)(b)(iii) DOES CREATE A TAX, IS THE TAX OBSCURE OR DECEITFUL, AND DOES IT IMPERMISSIBLY DELEGATE THE LEGISLATURE'S TAXING POWER TO THE JUDICIARY IN VIOLATION OF THE DISTINCT STATEMENT CLAUSE OR THE SEPARATION OF POWERS CLAUSE?

Amicus says "NO". Plaintiff-Appellee says "NO". Defendant-Appellant says "YES". Court of Appeals says "NO". Trial Court says "NO".

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COUNTERSTATEMENT OF FACTS

Arnicus concurs with and adopts Plaintiff-Appellee's Counterstatement of Facts.

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ARGUMENT I

The assessment of costs authorized pursuant to MCL 769.lk(l)(b)(iii) is properly classified as a fee because (1) costs collected in criminal cases fund the operation of courts, which are inherently regulatory in nature; (2) any revenue that results from the collection of costs assessed in a .criminal case does not go into the State's general fund and does noi~xceed the costs of regulation; (3) any benefit derived by the general public as a result of the collection of costs is purely incidental, and ( 4) a person can voluntarily -opt not to engage the services of the criminal court system by not committing criminal offenses

A. STANDARD OF REVIEW

Whether a charge is a "tax" or a "user fee" is a question of law that this Court reviews de

novo. 1 However, the Headlee Amendment does not define "tax" or "fee", and there is no bright­

line test for distinguishing between a valid user fee and a tax that violates the Headlee

Amendment. 2 As a result, the Amicus Curae is inclined to agree with the People that a more

appropriate standard would involve a mixed question of fact and law.

B. LEGAL STANDARDS

Determining whether a charge is properly characterized as a fee or a tax involves

consideration of several factors. Generally, a "fee" is "exchanged for a service rendered or a

benefit conferred, and some reasonable relationship exists between the amount of the fee and the

value of the service or benefit."3 A "tax," on the other hand, is designed to raise

revenue.4 "Exactions which are imposed primarily for public rather than private purposes are

taxes. Revenue from taxes, therefore, must inure to the benefit of all, as opposed to exactions

from a few for benefits that will inure to the persons or group assessed."5

There are "three primary criteria to be considered when distinguishing between a fee and

1 Bolt v City of Lansing, 459 Mich 152, 158; 587 NW2d 264 (1998) citing Saginaw Co v John Sexton Corp of 1vfichigan, 232 Mich App 202, 209; 591 NW2d 52 (1998) 2 Id. at 160 3 Saginaw Co, supra at 210; Vernor v Secretary of State, 179 Mich 157, 164, 167-169; 146 NW 338 (1914) 4 Bray v Dep't of State, 418 Mich 149, 162; 341 NW2d 92 (1983) 5 Bolt, supra at 160-61 (Citations omitted)

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a tax."6 First, "a user fee must serve a regulatory purpose rather than a revenue-raising purpose,"

although a fee may also be used to raise money as long as it is in support of the underlying

regulatory purpose. 7 Second, a user fee must be proportionate to the necessary costs of the

service rendered or the benefit conferred. 8 Third, a fee must be voluntary in nature, meaning that

the payer of the fee must be able to refuse or limit its use of the service or benefit.9 These

criteria must be considered in their totality rather than in isolation. 10 Accordingly, "a weakness

in one area would not necessarily mandate a finding that the charge at issue is not a fee." 11

C. DISCUSSION

The statute at issue in this case, MCL 769.lk, as amended by 2014 PA 352, states, in

relevant part:

6 Id

( 1) If a defendant enters a plea of guilty or nolo contendere or if the court determines after a hearing or trial that the defendant is guilty, both of the following apply at the time of the sentencing or at the time entry of judgment of guilt is deferred by statute or sentencing is delayed by statute:

* * * (b) The court may impose any or all of the following:

* * * (iii) Until October 17, 2020, 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.

* * *

7 Id.; Graham v Kochville Twp, 236 Mich App 141, 151; 599 NW2d 793 (1999) 8 Bolt, supra at 161-162 9 Id. at 162 10 Id. at 167 n 16 11 USA Cash #£I, Inc v City of Saginaw, 285 Mich App 262, 280; 776 NW2d 346 (2009) citing Graham, supra at 151

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1) Costs collected in criminal cases fund the operation of courts, which are inherently regulatory in nature. Thus, collection of costs from a convicted defendant, in a criminal case, to defray the expenses incurred by the court in performing its regulatory function, is not a tax created solely as a revenue­raising measure.

As noted above, the purpose of a tax is to raise revenue. In contrast, a fee should have as

its purpose something other than the raising of revenue, such as protecting the public health,

safety, and welfare. 12 The Court of Appeals concluded that MCL 769.lk(l)(b)(iii) does not

reveal a regulatory concern with the public health, safety, and welfare because court costs "are

not a form of punishment."13 The Court of Appeals also focused on the conclusion in Konopka

that "imposing costs on criminal defendants but not civil litigants is 'rationally related to the

legitimate governmental purpose of generating revenue from individuals who impose costs on

the government and society."' 14 The Amicus Curiae respectfully disagrees with this position.

The Court of Appeals first erred in finding that "regulatory" is synonymous with

"punishment" in concluding that costs assessed pursuant to MCL 769.lk(l)(b)(iii) were a tax.

To "regulate" is to control (an activity or process), through the implementation of rules. 15 In

marked contrast, "punishment" is a sanction - such as a fine, penalty, confinement, or loss of

property, right, or privilege - assessed against a person who has violated the law. 16 While

punishment may certainly be a component of any regulatory scheme, it is by no means the sole

purpose of the regulatory system as a whole. Stated differently - although the assessment of

costs pursuant to MCL 769.lk(l)(b)(iii) is not punitive, this fact, in and of itself, does not nullify

any regulatory purpose served by collecting those costs. Criminal courts perform a number of

12 Merrelli v City of St Clair Shores, 355 Mich 575, 583; 96 NW2d 144 (1959) 13 People v Cameron, 319 Mich App 215, 222-223; 900 NW2d 658 (2017) citing People v Konopka (On Remand), 309 Mich App 345,370; 869 NW2d 651 (2015) 14 Id. at 223-224; Konopka, supra at 369 quoting Dawson v Secretary of State, 274 Mich App 723, 738; 739 NW2d 339 (2007) 15 Black's Law Dictionary (10th ed) 16 Black's Law Dictionary (10th ed)

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regulatory functions, one of which includes punishment. Notably, none of the cases cited by

Defendant-Appellant or the Court of Appeals have even implied that a statute must impose

punishment to be considered "regulatory" in nature.

The Court of Appeals also erred in finding that MCL 769.lk(l)(b)(iii) imposes a tax

because the plain language of the statute does not reveal a regulatory concern with the public

health, safety, and welfare. 17 The Court of Appeals also appeared to focus on the reference to

"revenue" in the Konopka decision in reaching its conclusion in the instant case. This position,

however, focuses on the assessment of costs alone - not on the purpose of the assessment or the

intended use of the funds collected.

As guardians of the public welfare, our state and federal judicial systems strive to

administer equal justice to the rich and the poor, the good and the bad, the native and foreign

born of every race, nationality, and religion. 18 In addition to protecting the rights of the accused,

criminal courts also protect the public welfare by ensuring that those who are convicted of

crimes are held responsible. In order to fulfill this role, courts are required to advance the costs

associated with the administration of the criminal justice system in order to protect an

individual's due process rights and to promote the ends of justice. To defray these advanced

costs and to ensure the uninterrupted operation of criminal courts, the obligation to pay the

operational costs incurred by the court properly falls upon those who generate such expenses -

convicted criminal defendants.

Moreover, the costs allowed pursuant to MCL 769.lk(l)(b)(iii) are not the only

compensatory measures in place to recoup costs expended in the administration of justice. The

Legislature established the Crime Victim's Rights Furrd to pay for crime victim's rights

17 Cameron, supra at 223-224 18 People v Kammeraad, 307 Mich App 98, 119-20; 858 NW2d 490 (2014)

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services. 19 The Crime Victim's Rights Fund is funded by the crime victim's rights assessment.20

Currently, a convicted felon is assessed $130, those convicted of misdemeanors are assessed $75,

and juveniles are assessed $25 when the court enters an order of disposition for a juvenile

offense.21 Money remaining in the Crime Victim's Rights Fund after victim's services have been

paid for may be used for crime victim compensation.22 Excess revenue that has not been used

for crime victim compensation may be used to establish and maintain a statewide trauma

?~ system.-.,

In People v Earl, this Court held that the crime victim rights assessment was regulatory in

· nature because its purpose was to promote public safety and welfare by providing· notification

and support services to crime victims.24 Similar to the crime victim rights assessment, costs

collected pursuant to MCL 769.lk(l)(b)(iii) serve to ensure the continued operation of criminal

courts and thus, further the courts' regulatory purpose to protect the rights of the accused and to

r promote public safety and welfare._)

Taking all of the above-referenced information into account, it is difficult to fathom how

costs assessed under MCL 769.lk(l)(b)(iii), which serve to fund the continued operation of

criminal courts in furtherance of their regulatory purpose - protecting the rights of the accused

and promoting the welfare of the public - could be interpreted as being solely for the purpose of

raising revenue. Although the statute does not contain an express statement of legislative intent,

the implied purpose is plainly regulatory.26 Likewise, the fact that costs assessed under MCL

19 People v Earl, 495 Mich 33, 36-37; 845 NW2d 721 (2014); MCL 780.904(1) 20 Id.; MCL 780.904 21 MCL 780.905(1) and (3) 22 MCL 780.904(2). See, also, MCL 18.351 to MCL 18.368 23 MCL 780.904(2) 24 Earl, supra at 43 25 Id.; Black's Law Dictionary (101

h ed) ("public welfare" is a society's well-being in matters of health, safety, order, morality, economics and politics.) 26 People v Pennington, 240 Mich App 188, 193; 610 NW2d 608 (2000)

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769.lk(l)(b)(iii) may or may not have a punitive component does not deprive the statute of its

regulatory purpose. A regulatory fee can have dual purposes and still maintain its regulatory

characterization. 27

2) Any revenue generated as a result of assessment of costs in a criminal case does not go into the State's general fund and does not exceed the costs of regulation

The Court of Appeals also erred in finding that, because the collection of costs has the

effect of generating revenue for courts, the sole purpose of MCL 769.lk(l)(b)(iii) is to raise

revenue. There are several general principles used to determine whether a charge constitutes a

fee or a tax. Specifically, unlike revenue from taxes - which is paid into the state fund and

disbursable for general public expenses - money collected from fees does not become part of the

state fund, but is used solely for the necessary expenses of the service provided.28

MCL 769.lk(l)(b)(iii) authorizes the assessment of costs to cover administrative

expenses incurred by courts in criminal cases. The plain language of the statute clearly defines

the intended use of the sums acquired through the assessment - (A) salaries and benefits for

relevant court personnel, (B) goods and services necessary for the operation of the court, and (C)

necessary expenses for the operation and maintenance of court buildings and facilities.29

Likewise, the language of the statute does not indicate that costs collected would be paid into the

general public treasury or that the funds collected would be disbursable for public expenses.30

Due to the fact that the at-issue costs are used solely for necessary expenses of the service

provided, and because the costs collected are not paid into a state fund for the benefit of the

general public, the costs allowed under MCL 769.lk(l)(b)(iii) lack the essential elements of a

27 Westlake Transp, Inc v Pub Serv Comm, 255 Mich App. 589,613; 662 NW2d 784 (2003) 28 Dukesherer Farms, Inc v Director, Dep't of Agriculture (After Remand), 405 Mich 1, 16, 20-21; 273 NW2d 877 (1979) 29 MCL 769.lk(l)(b)(iii) 30 Dukesherer Farms, supra at 20-21

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tax.31

Likewise, the fact that costs collected pursuant to MCL 769.lk(l)(b)(iii) may generate

revenue for the court system, in and of itself, does not convert a regulatory measure into a tax

imposed solely for the purpose of raising revenue. In fact, a fee may be used to raise money as

long as it is in support of the underlying regulatory purpose.32 As noted in the previous section,

exacting funds pursuant to MCL 769. lk(l)(b)(iii) operates to defray costs expended by courts in

processing criminal cases, which ultimately promotes the ends of justice and the public welfare.

Since the costs assessed are intended to raise money to fund the continued operation of criminal

courts, there is no question that the proceeds of the fee directly support the underlying regulatory

purpose.

It is also important to note that, even where the purpose of the statute is not clearly

regulatory in nature, a charge will be upheld as a fee if the revenue generated does not exceed the

cost of the service rendered.33 In Foreman v Oakland Co Treasurer, the Court of Appeals

upheld a statutory probate administration fee that was designed to defray the costs of

administering probate estates.34 In finding that the charge was a fee as opposed to a tax, the

Court of Appeals concluded that, unlike taxes, which are the enforced proportional contributions

from persons and property, levied by the state by virtue of its sovereignty, for the support of

government and for all public needs, the fee charged represented a reimbursement by a

decedent's estate for specific services rendered by the Probate Court in the administration of that

estate.35

Similarly, in Gorney v City of Madison Heights, the Court of Appeals upheld a property

31 Id. 32 Graham, supra at 151 33 Gorney v City of Madison Hts, 211 Mich App 265, 270; 535 NW2d 263 (1995); Iroquois Properties v City of E Lansing, 160 Mich App 544, 564; 408 NW2d 495 ( 1987) 34 Foreman v Oakland County Treasurer, 57 Mich App 231, 234-235; 226 NW2d 67 (l974) 35 Id. at 239

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tax assessment fee intended to help localities pay the administrative costs of tax collection.36 In

holding that the charge was a fee as opposed to a tax, the Court of Appeals concluded that, like

in Foreman, the property tax assessment fee was a nomegulatory administration fee, designed to

defray the costs of administering property taxes, which did not exceed or equal the costs of

property tax collection. As a result, the property tax assessment fee was deemed to be a non­

revenue raising fee as opposed to an unconstitutional tax.

Federal courts have also addressed the issue of whether a charge constitutes a tax or a fee.

Specifically, in drawing a distinction between a tax and a fee, the Sixth Circuit has held that the

classic "tax" is imposed by a legislature upon many, or all, citizens, for the purpose of raising

money, contributed to a general fund, and spent for the benefit of the entire community.37 In

contrast, a "regulatory fee" is imposed by an agency upon those subject to its regulation.38 If an

"assessment falls near the middle of the spectrum between a regulatory fee and a classic tax, the

predominant factor is the revenue's ultimate use. 39

When the ultimate use is to provide a general public benefit, the assessment is likely

a tax, while an assessment that provides a more narrow benefit to the regulated [entities] is likely

a fee."40 "Fees can serve regulatory purposes as distinguished from general public purposes in

two ways: either by discouraging particular conduct through the device of making it more costly,

or by generating income ear marked to cover the cost of the regulation."41 In the case at bar, the

costs collected pursuant to MCL 769.lk(l)(b)(iii) arguably serve both purposes - the exaction of

money for costs in criminal cases serve to discourage criminal conduct through the device of

'6 , Gorney, supra at 270 37 Hedgepeth v Tennessee, 215 F3d 608, 612 (CA 6, 2000) citing San Juan Cellular Telephone Co v Public Service Commission of Puerto Rico, 967 F2d 683 (CA 1, 1992) 38 Id. 39 Doe v Snyder, 101 F Supp 3d 672, 711 (ED Mich, 2015) quoting Hedgepeth, supra at 612 40 Id. (quoting Am Landfill, Inc v Stark/Tuscarawas/Wayne Joint Solid Waste Mgt Dist, 166 F3d 835, 838 (CA 6, 1999) 41 Id.

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making it more costly, and the proceeds of the costs collected are used to fund the continued

operation of criminal courts.42

Therefore, even if the distinction between a tax and a fee is a close call for purposes of

the instant s;ase, costs assessed pursuant to MCL 769.lk(l)(b)(iii) more closely resemble a fee

than a tax because the proceeds from the assessment of costs do not go into the State's general

fund, and the amount of the fee assessed - the average cost incurred in processing a felony case -

does not exceed the costs of regulation.

3) Any benefit derived by the general public as a result of the collection of costs is purely incidental

The Court of Appeals also erred in concluding that the costs imposed pursuant to MCL

7 69 .1 k( 1 )(b )(iii) were not proportionate to the service because the courts confer benefits to the

public (justice, fairness, and order), and not to the particular person on whom the costs are

imposed.43 To be considered a fee rather than a tax, there must be a reasonable relationship

between the amount charged and the value of the service or benefit received.44

There is no question that courts render services to defendants during the pendency of a

criminal case. The Court of Appeals in Cameron ultimately found that the court costs were not

proportionate to services rendered because "the trial court's role in the prosecution of defendant

benefits primarily the public, not defendant."45 In reaching this conclusion, the Court of

Appeals' focus was on the benefit conferred as opposed to the service rendered; however, the

"benefit" requirement should not be considered in isolation. A "benefit" is the advantage or

42 Lower federal court decisions are not binding on state courts; however, they may serve as persuasive authority. Abela v Gen Motors Corp, 469 Mich 603,606; 677 NW2d 325 (2004) 43 Cameron, supra at 226 44 Vernor v Secretary of State, 179 Mich 157, 168-169; 146 NW 338 (1914); Bolt, supra at 86; Iroquois Properties v City of East Lansing, 160 Mich App 544, 562-564; 408 NW2d 495 (1987) 45 Cameron, supra at 227

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privilege something gives or the helpful or useful effect something has.46 A "service" is labor

performed in the interest or under the direction of others, specifically, the performance of some

useful act or series of acts for the benefit of another, usually for a fee. 47 Although the criminal

justice system may not confer an advantage or privilege upon criminal defendants, it arguably

has a helpful or useful effect in terms of the administration of justice.

Likewise, while there is no doubt that the general public derives some benefit from the

courts' role in the prosecution of criminal offenders, the fact that general benefits are by­

products of the criminal justice system does not negate the fact that the benefits of the system -

the protection of due process rights for those accused of crimes - inure primarily to criminal

defendants, who are actively engaged in the criminal justice system.48 Moreover, in finding that

the criminal court system does not benefit criminal defendants, the Court of Appeals considered

the ultimate outcome - punishment - as opposed to the actual services a criminal defendant

receives and the actual costs expended by the counties in providing these services.

Traditionally, the county has been the pnmary unit m directing

Michigan's criminal justice system.49 "[J]udicial circuits are drawn along county lines and

counties are required by statute to bear the expenses of certain courtroom facilities,

stenographer's salaries, juror's compensation, and fees for attorneys appointed by the court to

defend persons who cannot procure counsel for themselves. 50 As Plaintiff-Appellee noted in its

brief, costs advanced by courts for goods, services, court personnel and operations do benefit

criminal defendants because they remove any financial obligations that could potentially hinder

an individual's ability to pursue a defense.

46 Black's Law Dictionary ( l 0th ed) 47 Black's Law Dictionary (10th ed) 48 Dukesherer Farms, supra at 18 49 Frederick v Presque Isle Co Circuit Judge, 439 Mich 1, 6; 476 NW2d 142 (1991) 50 MCL 600.551; MCL 600.1114; MCL 600.1231; MCL 775.16

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Even if this Court does not find that criminal defendants derive a benefit from the courts,

it is indisputable that services are rendered to criminal defendants in the administration of justice,

and the costs assessed pursuant to MCL 769.lk(l)(b)(iii) are reasonably related to the services

rendered. In addition, while the public may, at least philosophically, derive some type of benefit

from the capture and subsequent prosecution of criminal offenders, it certainly cannot be said

that the public derives any benefit from the services rendered to a criminal defendant' during the

criminal process (i.e., stenographer wages, clerk salaries, copying of documents, waiver of

motion fees, etc.) As a result, the costs of services rendered by the court system in the

disposition of criminal matters properly fall on those who utilize those services - criminal

defendants. Therefore, the costs assessed pursuant to MCL 769.lk(l)(b)(iii) are properly

classified as a fee as opposed to a tax.

4) A person can voluntarily opt not to engage the services of the criminal court system by not committing criminal offenses

Finally, the Court of Appeals found that the third Bolt factor - whether the payor has the

ability to refuse or limit its use of the service to which the charge is related - weighed in favor of

classifying costs imposed pursuant to MCL 769.lk(l)(b)(iii) as a tax.51 Specifically, the Court of

Appeals held that generally speaking, court costs are not voluntarily incurred because "a criminal

defendant has no power to 'pass' on his or her prosecution and avoid the underlying costs."52

While it is true that criminal defendants, upon conviction, cannot refuse to pay costs

assessed as part of their sentence, this position overlooks the fact that criminal defendants do

have the power to "pass" on committing crimes, which would eliminate the obligation to pay

costs. Also, simply being charged with a felony offense does not trigger the imposition of costs.

The plain language of the statute makes clear that costs are only assessed against individuals who

51 Cameron, supra at 227-228; Westlake Transp, supra at 612 52 Id. at 228

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have been found guilty of who have entered a plea of guilty or nolo contendere. 53 Although the

services rendered by the court system begin once a defendant is charged, a defendant's

obliga.tion to reimburse those costs does not arise until he or she is convicted and sentenced. 54

The decision to engage in criminal activity is a purely voluntary decision within the complete

control of the individual, and as such, an individual who chooses to commit criminal offenses -

which will likely lead to a conviction - voluntarily submit themselves to the assessment of costs

under MCL 769.lk(l)(b)(iii) for the services rendered during the criminal process. 55

D. CONCLUSION

In sum, MCL 769.lk(l)(b)(iii) clearly imposes a regulatory fee as opposed to a tax

imposed for revenue-raising purposes. To the extent that collection of costs in criminal cases

does create some revenue for courts, the generation of some revenue is not preclusive if the fee

or charge "is in support of the underlying regulatory purpose."56 Here, costs imposed pursuant to

MCL 769.lk(l)(b)(iii) are intended to reimburse courts for services provided; thus, the charge

supports the underlying regulatory purpose of protecting the due process rights of the accused as

well as the safety of the public.

The costs allowed under the statute are also proportional to the costs incurred by trial

courts in processing criminal cases, and because the costs imposed pursuant to MCL

769.lk(l)(b)(iii) are restorative (as opposed to profit-generating) in nature, they lack important

hallmarks of a tax. Moreover, while the penal system may confer an incidental benefit upon the

general public, a "regulatory fee can have dual purposes and still maintain its regulatory

characterization. "57 This incidental benefit, however, does not negate the fact that criminal

53 MCL 769.lk(l) 54 MCL 769.lk 55 USA Cash #£1, Inc v City of Saginaw, 285 Mich App 262,282; 776 NW2d 346 (2009) 56 Id. at 280 57 Westlake Transportation, supra at 613

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defendants, who engage the services of the criminal justice system, are the ultimate beneficiaries

of those services.

Finally, while the costs imposed pursuant to MCL 769. lk(l)(b)(iii) are not voluntary

once they are assessed, the decision to commit a crime, which triggers the imposition of those

costs, is completely voluntary. Based on the foregoing, costs assessed pursuant to MCL

769.lk(l)(b)(iii) are properly classified as a regulatory fee as opposed to a tax. Accordingly,

MCL 769.lk(l)(b)(iii) is not required to comply with the Distinct Statement Clause.58

58 Const 1963, art 4, § 32; Gillette Commercial Operations North America & Subsidiaries v Dep't of Treasury, 312 Mich App 394,447; 878 NW2d 891 (2015)

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ARGUMENT II

Assuming arguendo that MCL 769.lk(l)(b)(iii) does create a tax, the tax is not obscure or deceitful, and it does not impermissibly delegate taxing power to the Judiciary; thus, MCL 769.lk(l)(b)(iil) does not violate the Distinct Statement Clause or the Separation of Powers Clause.

A. STANDARD OF REVIEW

Whether a statute is constitutional is a question of law that an appellate court reviews de

novo.59 All statutes and ordinances are given a strong presumption of constitutionality.60 In

other words, legislation is presumed constitutional absent a clear showing to the contrary.61

B. LEGAL STANDARDS

The party challenging the constitutionality of a statute has the burden of proving the law's

invalidity.62 When evaluating the constitutionality of a statute, appellate courts presume that the

statute is constitutional.63 The power to declare a law unconstitutional is exercised with extreme

caution, and appellate courts never exercise it where serious doubt exists with regard to the

conflict.64 A statute is not unconstitutional merely because it appears "undesirable, unfair,

unjust, or inhumane," and courts should not address arguments about the wisdom of a statute or

whether a statute results in bad policy.65 Such arguments should be addressed to the

Legislature. 66 Rather, appellate courts will construe a statute as constitutional unless it

"' manifestly infringe[ s] some provision of the constitution .... "'67

59 People v AfcKinley, 496 Mich 410, 414-415; 852 NW2d 770 (2014) 60 Dawson v Secy of State, supra at 739-40 citing Taylor Commons v City of Taylor, 249 Mich App 619,625; 644 NW2d 773 (2002) 61 Id. citing Caterpillar, Inc. v Dep't ofTreaswy, 440 Mich 400,413; 488 NW2d 182 (1992). 62 People v Sadows, 283 Mich App 65, 67; 768 NW2d 93 (2009) 63 Phillips v Mirac, Inc, 470 Mich 415, 422; 685 NW2d 174 (2004) (Phillips II) 64 Id. 65 People v Boomer, 250 Mich App 534, 538; 655 NW2d 255 (2002) 66 Id. 67 Konopka, supra at 360-361 citing People v Harper, 479 Mich 599, 621 n 43; 739 NW2d 523 (2007), quoting Sears v Cottrell, 5 Mich 251,259 (1858)

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C. DISCUSSION

1) The Distinct Statement Clause

The Distinct Statement Clause provides, "[ e ]very law which imposes, continues or

revives a tax shall distinctly state the tax."68 "The purpose of this provision is to prevent the

Legislature from being deceived in regard to any measure for levying taxes, and from furnishing

money that might by s·ome indirection be used for objects not approved by the Legislature."69 A

violation of the Distinct Statement Clause occurs "if a statute imposes an obscure or deceitful

ta,'<:, such as when a tax is disguised as a regulatory fee."70

On appeal, Defendant-Appellant asserts that MCL 769. lk(l)(b)(iii) violates the Distinct

Statement Clause because it does not reveal that it is creating a tax, does not establish a rate of

calculation, does not specify or limit the amount a court may charge, and does not clarify what

proportion of the court's operating and maintenance costs criminal defendants vv:ill bear.

Defendant-Appellant further claims that these flaws in the statute render the costs it sanctions

obscure and deceitful and, therefore, unconstitutional. The Amicus Curiae will, in large part,

adopt the analysis and reasoning of Plaintiff-Appellee and the Court of Appeals in this regard;

however, there are a couple of points that should be highlighted.

First, the fact that a statute does not explicitly state that it is creating a tax does not render

the statute obscure or deceitful.71 Likewise, the fact that the statute does not include a flat fee

that applies to all defendants does not destroy the statute's constitutionality. It is true that MCL

769.lk(l)(b)(iii) does not require that a court separately calculate the actual costs in each case,

68 Const 1963, art 4, § 32 69 Gillette Commercial Operations North America & Subsidiaries v Dep't of Treaswy, 312 Mich App 394,447; 878 NW2d 891 (2015) (citation and quotation marks omitted) 7° Cameron, supra at 229 71 Dawson v Say of State, 274 Mich App 723, 747; 739 NW2d 339 (2007)

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and it does not set or specifically limit the amount of costs a court may impose; however, this is

not to say that the statute fails to provide any guidance or limitations.72

MCL 769.lk(l)(b)(iii) limits the costs to those "reasonably related" to the costs the court

incurs, and it provides a nonexclusive list of the types of expenses the court may include in its

dete1mination of costs. 73 Implicit in the statute, and made explicit by the Court of Appeals'

analysis in Konopka, is the court's obligation to "establish a factual basis" for the costs

imposed. 74 Likewise, as the Court of Appeals noted in Cameron, the purpose of the statute is

clearly stated in the public act that led to its creation.75

The Court of Appeals also correctly notes that MCL 769.lk(l)(b)(iii) contains provisions

ensuring transparency and accountability, such as the requirement that courts submit reports

including information about any fine, cost or assessment imposed to the State Court

Administrative Office (SCA0).76 In addition, upon receipt of the report, the SCAO must

compile the data and submit an annual report to the governor. 77 The Court of Appeals also notes

in Cameron that there is a sunset clause contained within MCL 769.lk(l)(b)(iii), authorizing the

assessment of costs in the manner set forth in the statute "[u]ntil 36 months after the date the

amendatory act that added subsection (7) is enacted into law .... ", that also weighs against a

finding that costs assessed under the statute are obscure or deceitful. 78

Most importantly, at the crux of the Court of Appeals' analysis in this regard, is that

MCL 769.lk(l)(b)(iii) was an effort by the Legislature to allow trial courts to impose costs on a

72 Cameron, supra at 230 13 Id. 74 Id. citing Konopka, supra at 359-360 75 Id. quoting 2014 PA 352, which states: "[t]his amendatory act is a curative measure that addresses the authority of courts to impose costs under section lk of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769. lk, before the issuance of the supreme court opinion in People v Cunningham, 496 Mich 145; 852 NW2d 118 (2014). [2014 PA 352, enacting§ 2.) 76 Id. citing MCL 769.lk(8)(c) and (d) 77 Id. citing MCL 769.lk(9) 78 Id. at 231

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convicted defendant in amounts reflecting the court's actual operational costs in connection with

criminal cases. 79 The fact that there is no precise formula for calculating these costs documented

within the statute does not, in and of itself, render the statute unconstitutional. The statute

contains sufficiently specific guidance for trial courts in tenns of calculating operational costs

such that it does not provide for unbridled discretion to impose outlandish or unrelated costs.

While a trial court retains some discretion in calculating the costs, the statutory guidance

encourages the court to use a formula to determine the average cost of a criminal case, and the

trial court must establish on the record its factual basis for those costs. 80

As noted above, while is true that MCL 769.lk(l)(b)(iii) does not contain the word "tax",

this fact is not dispositive. Likewise, the fact that there is no precise calculation contained within

the statute does not negate the considerable guidance the Legislature provides as it relates to

calculation of those costs. In reality the defect alleged by Defendant-Appellant, if any, appears

to be a matter of statutory construction rather than a constitutional guarantee. Obviously, if tax

statutes were to be found unconstitutional merely because they required judicial interpretation or

were unconstitutional merely because judicial interpretations were not favorable to the taxpayer,

the length of law bookshelves would be considerably reduced. 81 Based on the foregoing, costs

assessed under MCL 769.lk(l)(b)(iii), if they are indeed a tax, are neither obscure, nor deceitful,

and therefore, they do not violate the Distinct Statement Clause.

2) Separation of Powers

Defendant-Appellant next argues that MCL 769.lk(l)(b)(iii) violates our Constitution's

separation of powers provision on the ground that "[t]he amended cost statute delegates to the

79 Id. 80 Id. citing Konopka, supra at 359-360 81 lvfichigan Consol Gas Co v State, 72 Mich App 426, 444; 250 NW2d 85, 94 (I 976), aff'd sub nom Prod Credit Associations of Lansing v State, Dept of Treasury, Revenue Div, 404 Mich 301; 273 NW2d 10 ( 1978)

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trial court the authority to determine the amount of the tax" when "the power to tax rests solely

with the Legislature."82 Again, the Amicus Curiae adopts that analysis of the Court of Appeals

and Plaintiff-Appellee; however, again, a few points are worth highlighting.

Const 1963, art 3, § 2 provides:

The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.

"The legislative power of the State of Michigan is vested in a senate and a house of

representatives."83 "Simply put, legislative power is the power to make laws."84 By contrast, a

defining aspect of judicial power is the interpretation of law. 85 There is a distinction between

legislative and judicial acts. The legislature makes the law-courts apply it. To enact laws is an

exercise of legislative power; to interpret them is an exercise of judicial power. To declare what

the law shall be is legislative; to declare what it is or has been is judicial. The legislative power

prescribes rules of action. The judicial power determines whether, in a particular case, such rules

of action have been transgressed. The legislature prescribes rules for the future. The judiciary

ascertains existing rights. 86

"[T]he legislative power of the people through their agent, the legislature, is limited only

by the Constitution, which is not a grant of power, but a limitation on the exercise of power. ... "87

"[T]he advisability or wisdom of statutory enactments, which are not violative of the

82 Cameron, supra at 231-232 83 Const. 1963, art 4, § 1 84 In re Complaint of Rovas Against SBC Michigan, 482 Mich 90, 98; 7 54 NW2d 259 (2008) 85 Id., citing Marbwy v Madison, 5 US (1 Cranch) 137; 2 L Ed 60 (1803) 86 In re Manufacturer's Freight Forwarding Co, 294 Mich 57, 63; 292 NW 678 (1940) (quotation marks and citation omitted) 87 Oakland Co Taxpayers' League v Oakland Co Supervisors, 355 Mich 305, 323; 94 NW2d 875 (1959), citing Attorney General v Preston, 56 Mich 177; 22 NW 261 (1885). See also Young v Ann Arbor, 267 Mich 241,243; 255 NW 579 (1934)

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constitutional provisions, is a matter for legislative consideration and not for [the] Court. "88 "In

accordance with the constitution's separation of powers, [c]ourt[s] cannot revise, amend,

deconstruct, or ignore the Legislature's product and still be true to our responsibilities that give

our branch only the judicial power. "89

It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but

legislate, and a governor to do nothing but execute the laws. The proper exercise of each of

these three great powers of government necessarily includes some ancillary inherent capacity to

do things, which are normally done by the other departments. 90 This Court has established that

the separation of powers doctrine does not require so strict a separation as to provide no overlap

of responsibilities and powers.91 If the grant of authority to one branch is limited and specific

and does not create encroachment or aggrandizement of one branch at the expense of the other, a

sharing of power may be constitutionally permissible.92

For purposes of determining the constitutionality of MCL 769.lk(l)(b)(iii), the critical

questions are whether the judicial branch's powers necessarily include the calculation and

collection of ta.xes imposed by the Legislature, and, if so, whether the legislatively prescribed

sharing of its taxing function is sufficiently limited and specific so as not to encroach on the

exercise of the constitutional responsibilities of the legislative branch.93

Regarding the imposition of ta.xes, the Michigan Constitution provides that "[t]he

legislature shall impose taxes sufficient with other resources to pay the expenses of state

88 Oakland Co Taxpayers' League, supra at 323-324, citing Huron-Clinton Aletro Auth v Eds of Supervisors of Five Cos, 300 Michl; 1 NW2d 430 (1942) 89 In re Rovas Complaint, supra at 98 (quotation marks, citation, and alteration omitted). 90 Judicial Attorneys Ass'n v State, 459 Mich 291, 296-98; 586 NW2d 894 (1998) 91 !cl citing In re Southard, 298 Mich 75, 83; 298 NW 457 (1941); People v Piasecki, 333 Mich 122, 146-148; 52 NW2d 626 (1952); Soap & Detergent Ass'n v Natural Resources Comm, 415 Mich 728, 752; 330 NW2d 346 (1982) 92 Soap & Detergent Ass'n, supra at 752-753; lvfistretta v United States, 488 US 361, 382; 109 S Ct 647; 102 L Ed 2d 714 (1989) 93 Judicial Attorneys Ass'n, supra at 297

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government,"94 and that. "[t]he power of taxation shall never be smTendered, suspended or

contracted away."95 Therefore, the power to tax and appropriate generally rests exclusively with

the Legislature.96 Nevertheless, a legislature may delegate its powers.97 To delegate its powers

without violating the separation-of-powers doctrine, a legislature must provide guidelines and

standards to the body to which power is delegated.98 The Legislature's delegation of authority is

proper if the standards it provides are "as reasonably precise as the subject matter requires or

pennits."99

The Amicus Curiae agrees with the Court of Appeals' analogy regarding the legislative

delegation of sentencing power. The fact that the Legislature may delegate to the courts the

power to calculate and collect costs that are reasonably related to court operations does not

negate the fact that the power to create and impose the tax remains with the Legislature. The fact

that the Legislature does not micromanage the way that courts execute their limited delegated

powers does not equate to a violation of Separation of Powers. At the end of the day, the

Legislature and the Judiciary continue to maintain their respective roles - the Legislature enacted

MCL 769.lk(l)(b)(iii) to allow criminal courts to collect costs reasonably related to operations,

and the Judiciary interprets and implements the Legislature's directive by assessing and

collecting the costs authorized by the statute.

94 Const 1963, art 9, § l 95 Const 1963, art 9, § 2 96 VA W v Green, 498 Mich 282, 290; 870 NW2d 867 (2015) 97 Hoffman v Otto, 277 Mich 437,440; 269 NW 225 (1936) (noting that, "to the extent of public need," the power of taxation may be delegated to municipal power) 98 McNeil v Charlevoix Co, 484 Mich 69, 102; 772 NW2d 18 (2009) (Markman, J., concurring in part and dissenting in part) (noting, for example, that the Legislature may "delegate a task to an executive branch agency if it provides 'sufficient standards"') 99 Cameron, supra at 233-234 quoting Westervelt v Natural Resources Comm, 402 Mich 412, 438; 263 NW2d 564 (1978) ( quotation marks and citation omitted); City of Ann Arbor v Nat'! Ctr for lvlfg Sciences, Inc, 204 Mich App 303,308; 514 NW2d 224 (1994) ("[T]he standards must be sufficiently broad to permit efficient administration so that the policy of the Legislature may be complied with, but not so broad as to give uncontrolled and arbitrary power to the administrators.")

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D. CONCLUSION

For the reasons stated above, the Arnicus Curiae, in large part, adopts the analysis of both

the Court of Appeals and Plaintiff-Appellee. If MCL 769.lk(l)(b)(iii) does, in fact, create a tax,

the tax is constitutional and does not violate the Distinct Statements Clause or the Separation of

Powers Clause.

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SUMMARY AND RELIEF SOUGHT

WHEREFORE, the Arnicus Curiae respectfully requests that this Honorable Court

DENY Defendant-Appellant's application for leave to appeal and all other relief requested

therein.

Dated: July 13, 2018 \

MELISSA A. POWELL President Prosecuting Attorneys Association of Michigan

JOHN A. MCCOLGAN, JR. (P37168) PROSECUTING ATTORNEY

NATHAN J. COLLISON (P76031) CHIEF APPELLATE ATTORNEY

Respectfully submitted,

\d-__:::_--~~!L.JL.:,!JL.-'-----H--'--_:c:_

MELISSA . HOOVER (P~921) Assistant Prosecuting Attorney Saginaw County Prosecutor's Office 111 S. Michigan Avenue Saginaw, MI 48602 (989) 790-5330

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