PEOPLE OF MI V FREDERICK LAWRENCE CUNNINGHAM (Dissenting Opinion)
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STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION May 28, 2013 Plaintiff-Appellee, v No. 309277 Allegan Circuit Court LC No. 11-017200-FH FREDERICK LAWRENCE CUNNINGHAM, Defendant-Appellant. Before: FITZGERALD, P.J., and O CONNELL and SHAPIRO, JJ. SHAPIRO, J. (dissenting). The majority follows People v Sanders, 296 Mich App 710, 825 NW2d 87 (2012). I would instead follow People v Dilworth, 291 Mich App 399; 804 NW2d 788 (2011), a case that had previously decided this question, but which Sanders failed to follow. In People v Dilworth, our Court considered whether overhead charges, i.e., the costs of operating a court system regardless of the filing of the single case at issue, could be assessed as court costs incurred in prosecuting the defendant. We held that such an assessment was improper: When authorized, the costs of prosecution imposed must bear some reasonable relation to the expenses actually incurred in the prosecution. People v Wallace, 245 Mich 310, 314; 222 NW 698 (1929). Furthermore, these costs may not include expenditures in connection with the maintenance and functioning of governmental agencies that must be borne by the public, irrespective of specific violations of the law. People v Teasdale, 335 Mich 1, 6; 55NW2d 149 (1952). (emphasis added). [Dilworth, 291 Mich App at 401]. Dilworth went on to distinguish between appropriate charges such as expert witness fees which are incurred on a case-by-case basis as opposed to impermissible charges, such as . . . wages, which were set by a board of supervisors pursuant to a stature and independent of any particular defendant s case. In Sanders, this Court addressed the same question under MCL 769.1k which allows, but does not require a sentencing court to assess any cost in addition to the minimum state cost of $68.00 if the defendant is convicted of a felony. Directly contrary to Dilworth, Sanders held that overhead costs may be imposed so long as they bear a reasonable relationship between -1- the costs imposed and the actual costs incurred by the trial court. The Sanders court remanded the case to the trial court which calculated the overall expenses incurred by the county in operating the circuit court, reduced it by the percentage of civil cases and then assessed an amount equivalent to the remaining overall expenses divided by the number of criminal dispositions annually. The trial court assessed costs against defendant based on funds allocated by the county for building use, maintenance and insurance, salaries and fringe benefits of court employees, phones, copying, mailing, and the courthouse gym. After remand, the Sanders panel approved this approach. Sanders essentially ignored the holding in Dilworth by which it was bound. Both statutes allowed for the assessment of the costs of prosecuting a convicted criminal defendant. Dilworth held that such costs are limited to those specifically incurred due to the individual case, not a share of the overall cost of having courts and prosecutors. Sanders concluded that costs of the court may include the general costs of maintaining the judicial branch of government. The Sanders panel also rejected a holding of the Michigan Supreme Court. It concluded that it need not follow People v Teasdale, 335 Mich 1,6; 55 NW2d 149 (1952), which held that an assessment of costs against a convicted defendant excludes expenditures in connection with the maintenance and functioning of governmental agencies that must be borne by public irrespective of specific violations of the law. 1 Sanders sidestepped Teasdale in two ways. First, Sanders noted that Teasdale could be ignored because it was decided decades ago although there has been no intervening decision overruling or even criticizing Teasdale. Second, Sanders suggested that Teasdale rested its conclusion on statutory language that barred an assessment of such maintenance costs. This assertion is simply not true. The statute considered in Teasdale did not contain any language excluding maintenance or overhead costs. In fact, the language of the statute applicable in Teasdale was extraordinarily broad, providing that in imposing costs, the court: shall not be confined to or governed by the laws or rules governing the taxation of costs in ordinary criminal procedure, but may summarily tax and determine such costs without regard to the items ordinarily included in taxing costs in criminal cases and may include therein all such expenses, direct and indirect, as the public has been or may be put to in connection with the apprehension, examination, trial and probationary oversight. [PA 1931, No. 308; CL 1948, ยง 771.3 (emphasis added)]. Thus, Teasdale s bar against costs for the overall operation of the courts was set out in the context of a statute which was far more consistent with such assessments than were the later amendments, that now control and which were likely a codification of the Teasdale holding. 1 The Sanders panel also failed to address other cases predating Dilworth, but consistent with it. See e.g., People v Newton, 257 Mich App 61, 68-69; 665 NW2d 504 (2003); People v Crigler, 244 Mich App 420, 427; 625 NW2d 424 (2001); People v Kircher, 429 Mich 876; 415 NW2d 864 (1987). -2- Convicted felons have committed crimes and we punish them for doing so. They may be fined, incarcerated, or placed under other forms of supervision and restrictions upon their conduct. However, they remain citizens of our state. Whatever their conduct, they do not constitute a special class upon whom the courts may assess higher taxes or fees to pay for the expense necessary to maintain the constitutionally required operations of government. As held in Dilworth and Teasdale, if a particular case requires a court to incur specific costs, then those costs may be assessed. However, the costs of operating the government itself is borne by all Michigan residents, not merely or particularly, by those that run afoul of the law. /s/ Douglas B. Shapiro -3-
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