People v. Konopka (On Remand)

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION

March 3, 2015

Plaintiff-Appellee, 9:10 a.m.

v No. 319913

Ingham Circuit Court

LINDSEY LYNN KONOPKA, LC No. 13-000362-FH

Defendant-Appellant.

Before: RIORDAN, P.J., and MURPHY and BOONSTRA, JJ.

BOONSTRA, J.

Defendant pleaded guilty to first-degree retail fraud, MCL 750.356c, and conspiracy to

commit first-degree retail fraud, MCL 750.157a. The trial court sentenced defendant as a second

habitual offender, MCL 769.10, to one and one-half to five years’ imprisonment for the first-

degree retail fraud conviction and two to five years’ imprisonment for the conspiracy to commit

first-degree retail fraud conviction. The trial court additionally ordered defendant to pay court

costs in the amount of $500.

I. PROCEDURAL HISTORY

Defendant filed a delayed application for leave to appeal, arguing that the sentence was

invalid because the departure and the extent of the departure were not supported by legally valid

reasons and that the trial court did not correctly advise defendant regarding his rights of appeal.

This Court denied the delayed application for leave to appeal for lack of merit in the grounds

presented.1

Defendant then applied for leave to appeal to the Michigan Supreme Court, raising the

same issues asserted in her delayed application filed in this Court. Defendant also filed a motion

in the Supreme Court seeking to add an issue, and for leave to file a supplemental brief,

concerning the trial court’s imposition of court costs. On September 19, 2014, the Supreme

Court entered an order that stated:

1

People v Konopka, unpublished order of the Court of Appeals, entered February 21, 2014

(Docket No. 319913).

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On order of the Court, the motion to add issue and file supplemental brief

is GRANTED. The application for leave to appeal the February 21, 2014 order of

the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of

granting leave to appeal, we REMAND this case to the Court of Appeals for

consideration of whether the circuit court improperly imposed court costs, in light

of our decision in People v Cunningham, 496 Mich 145[; 852 NW2d 118] (2014),

and if so, whether the circuit court’s assessment of $500 in “court costs”

constitutes plain error affecting the defendant’s substantial rights. Contrast

People v Franklin, 491 Mich 916 (2012), with Johnson v United States, 520 US

461, 467-468[; 117 S Ct 1544; 137 L Ed 2d 718] (1997).

We direct the Court of Appeals’ attention to the fact that we have also

remanded People v Holbrook (Docket No. 149005) [Court of Appeals Docket No.

319565] to the Court of Appeals for consideration of similar issues. In all other

respects, leave to appeal is DENIED, because we are not persuaded that the

remaining questions presented should be reviewed by this Court. [People v

Konopka, 497 Mich 863, 863-864; 852 NW2d 903 (2014).[2]

On remand from our Supreme Court, defendant argued that the trial court’s imposition of

costs was improper in light of Cunningham. In response, the prosecution argued that the

imposition of costs was proper in light of the Legislature’s post-Cunningham amendment of

MCL 769.1k. Defendant replied that this Court should disregard the prosecution’s response

because the Legislature’s post-Cunningham amendment of MCL 769.1k was not within the

scope of the Supreme Court’s remand order, and further suggested, without fully articulating her

position, that “possible responsive arguments” could be made concerning the constitutionality of

the Legislature’s post-Cunningham amendment of MCL 769.1k. This Court subsequently

ordered supplemental briefing concerning the constitutional arguments suggested in defendant’s

reply brief on appeal.3 In compliance with that order, the parties filed supplemental briefs

addressing those constitutional issues.

We now consider defendant’s challenges to the imposition of court costs, and conclude

that the trial court possesses the authority, pursuant to MCL 769.1k, as amended by 2014 PA

352, to order court costs; however we remand to the trial court to establish whether the court

costs imposed were “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)(iii), as

amended by 2014 PA 352, or to adjust that amount as may be appropriate. We reject defendant’s

constitutional challenges to the amended version of MCL 769.1k.

2

Holbrook has since been resolved following the prosecution’s confession of error in that case.

See People v Holbrook, unpublished order of the Court of Appeals, issued January 16, 2015,

amended February 13, 2015 (Docket No. 319565).

3

See People v Konopka, unpublished order of the Court of Appeals, entered January 20, 2015

(Docket No. 319913).

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II. MCL 769.1k AND CUNNINGHAM

We first are obliged to consider—and we reject—defendant’s suggestion that we should

not consider the prosecution’s position regarding the impact of the Legislature’s post-

Cunningham amendment of MCL 769.1k. Certainly, it is true, as defendant points out, that the

legislative amendment was not within the stated scope of the Supreme Court’s remand order.

But it is equally if not more true that a post-Cunningham legislative amendment obviously could

not have been addressed within the text of a Cunningham order that was necessarily issued

before the legislative amendment was even enacted. It is also true—and we specifically hold—

that the subject matter of the legislative amendment is so inextricably tied to the subject matter of

the decision in Cunningham that it is appropriate for us to consider them in conjunction with

each other, and in fact that it would be inappropriate for us to do otherwise.4

At the time of sentencing, and at the time of defendant’s commission of the offenses

giving rise to sentencing, MCL 769.1k provided, in relevant part:

(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 pursuant to statute or sentencing is delayed pursuant to statute:

(a) The court shall impose the minimum state costs as set forth in section

1j of this chapter.

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

(i) Any fine.

(ii) Any cost in addition to the minimum state cost set forth in subdivision

(a).

(iii) The expenses of providing legal assistance to the defendant.

(iv) Any assessment authorized by law.

(v) Reimbursement under section 1f of this chapter. [MCL 761.1k, prior

to amendment by 2014 PA 352. Emphasis added.]

In People v Sanders, 296 Mich App 710, 715; 825 NW2d 87 (2012) (Sanders I),

overruled in part by People v Cunningham, 496 Mich 145 (2014), this Court held “that a trial

court may impose a generally reasonable amount of court costs under MCL 769.1k(1)(b)(ii)

4

We further note that although defendant initially took the position that the prosecution should

have presented the issue of the legislative amendment by way of cross-appeal, defendant appears

to have retracted that position in her supplemental brief.

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without the necessity of separately calculating the costs involved in the particular case . . . .”

Because the trial court in Sanders I did not adequately explain the factual basis for its award of

$1,000 in court costs, a remand was required “in order to facilitate meaningful appellate review

of the reasonableness of the costs assessed defendant.” Id. In People v Sanders (After Remand),

298 Mich App 105, 108; 825 NW2d 376 (2012) (Sanders II), this Court expressed satisfaction

“that the trial court complied with our directives on remand and did establish a sufficient factual

basis to conclude that $1,000 in court costs under MCL 769.1k(1)(b)(ii) is a reasonable amount

in a felony case conducted in the Berrien Circuit Court.”

In Cunningham, 496 Mich at 147, our Supreme Court held that MCL 769.1k(1)(b)(ii) did

not provide courts with the “independent authority to impose costs on criminal defendants.”

Rather, “MCL 769.1k(1)(b)(ii) provides courts with the authority to impose only those costs that

the Legislature has separately authorized by statute.” Id. The Cunningham Court reasoned that

while MCL 769.1k allows courts to impose “any cost in addition to the minimum state cost,” the

statute also authorized courts to impose other costs, including the expense of providing legal

assistance to the defendant and any costs incurred in compelling the defendant’s appearance. Id.

at 154. These additional cost provisions would have been unnecessary if MCL 769.1k(1)(b)(ii)

had provided courts with the independent authority to impose “any cost.” Id. Further, when the

Legislature enacted MCL 769.1k, numerous statutes provided courts with the authority to impose

specific costs for certain offenses. Id. at 156. Therefore, “[i]nterpreting MCL 769.1k(1)(b)(ii) as

providing courts with the independent authority to impose ‘any cost’ would essentially render the

cost provisions within those statutes nugatory . . . .” Id. The Court noted that the Legislature has

continued to enact provisions authorizing courts to impose particular costs for certain offenses,

which again suggests that the Legislature did not intend for MCL 769.1k(1)(b)(ii) to provide

courts with independent authority to impose “any cost.” Id. at 156-157. The Court also noted

that if it held that MCL 769.1k(1)(b)(ii) provided courts with the independent authority to

impose “any cost,” then MCL 769.1k(1)(b)(i) would logically provide courts with the

independent authority to impose “any fine.” Id. at 157. Such a holding would nullify statutory

provisions that fix the amount of fines for certain offenses because courts could impose “any

fine” without reference to the limitations set forth in other statutes. Id. Thus, the conclusion that

MCL 769.1k(1)(b)(i) did not provide independent authority to impose “any fine” suggested that

MCL 769.1k(1)(b)(ii) did not provide independent authority to impose “any cost.” Id. at 158.

The Cunningham Court concluded:

In light of the foregoing analysis, we conclude that MCL 769.1k(1)(b)(ii)

does not provide courts with the independent authority to impose “any cost.”

Instead, we hold that MCL 769.1k(1)(b)(ii) provides courts with the authority to

impose only those costs that the Legislature has separately authorized by statute.

In other words, we find that MCL 769.1k(1)(b)(ii) seeks comprehensively to

incorporate by reference the full realm of statutory costs available to Michigan

courts in sentencing defendants, so that the Legislature need not compendiously

list each such cost in MCL 769.1k. Our understanding of MCL 769.1k(1)(b)(ii),

we believe, accords respect to its language, to the language of other cost

provisions within MCL 769.1k, and to the language of other statutes enacted by

the Legislature conferring upon courts the authority to impose specific costs for

certain offenses. [Id. at 158-159 (footnotes omitted).]

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Because Sanders I assumed that MCL 769.1k(1)(b)(ii) authorized the imposition of costs without

any explicit limitation, the Cunningham Court overruled Sanders I to the extent that it was

inconsistent with the opinion in Cunningham. Id. at 159.

Following the issuance of Cunningham, the Legislature amended MCL 769.1k; the

amended statute became immediately effective on October 17, 2014. See 2014 PA 352. The

enacting sections of 2014 PA 352 provide:

Enacting section 1. This amendatory act applies to all fines, costs, and

assessments ordered or assessed under section 1k of chapter IX of the code of

criminal procedure, 1927 PA 175, MCL 769.1k, before June 18, 2014, and after

the effective date of this amendatory act.

Enacting section 2. This amendatory act is a curative measure that

addresses the authority of courts to impose costs under section 1k of chapter IX of

the code of criminal procedure, 1927 PA 175, MCL 769.1k, before the issuance of

the supreme court opinion in People v Cunningham, 496 Mich 145 (2014).

This act is ordered to take immediate effect.

The amended version of MCL 769.1k(1)(b) states in relevant part:

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

(i) Any fine 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.

(ii) Any 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.

(iii) Until 36 months after the date the amendatory act that added

subsection (7) is enacted into law, 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.

(iv) The expenses of providing legal assistance to the defendant.

(v) Any assessment authorized by law.

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(vi) Reimbursement under section 1f of this chapter.

Our Supreme Court remanded the instant case to this Court after the issuance of

Cunningham but prior to the amendment of MCL 769.1k. Our Supreme Court directed this

Court to consider whether the trial court improperly imposed court costs, in light of

Cunningham, and if so, whether the assessment of $500 in court costs constitutes plain error

affecting defendant’s substantial rights.

III. TRIAL COURT’S AUTHORITY TO IMPOSE COURT COSTS

Because defendant failed to object when the trial court ordered her to pay costs and

attorney fees, we review her challenge to the trial court’s imposition of court costs for plain

error. See People v Dunbar, 264 Mich App 240, 251; 690 NW2d 476 (2004), overruled on other

grounds People v Jackson, 483 Mich 271 (2009). Statutory interpretation presents a question of

law that is reviewed de novo. Cunningham, 496 Mich at 149. We hold that, because the

Legislature has amended MCL 769.1k, the trial court’s imposition of court costs was valid.

If the Legislature had not amended MCL 769.1k, the cost award in this case would have

been invalid under Cunningham. Under Cunningham, 496 Mich at 147, the former version of

MCL 769.1k(1)(b)(ii) provided courts with the authority to impose only those costs that were

separately authorized by statute. Defendant was convicted of first-degree retail fraud,

MCL 750.356c, and conspiracy to commit first-degree retail fraud, MCL 750.157a. The statutes

for those offenses do not authorize the imposition of court costs. See MCL 750.356c(1)

(authorizing imprisonment and a fine); MCL 750.157a (authorizing imprisonment and a fine).

Nor did any other statute separately authorize the imposition of the costs imposed. Therefore,

the imposition of court costs is not separately authorized by statute, as required by Cunningham.

However, the trial court’s cost award is authorized by the amended version of

MCL 769.1k(1)(b)(iii). This amended version became effective on October 17, 2014, and

applies to all fines, costs, and assessments under MCL 769.1k before June 18, 2014, and after the

effective date of the amendatory act. 2014 PA 352. The amended act was a curative measure to

address the authority of courts to impose costs under MCL 769.1k before the issuance of

Cunningham. 2014 PA 352. “ ‘When a new law makes clear that it is retroactive, an appellate

court must apply that law in reviewing judgments still on appeal that were rendered before the

law was enacted, and must alter the outcome accordingly.’ ” Mayor of Detroit v Arms

Technology, Inc, 258 Mich App 48, 65; 669 NW2d 845 (2003), quoting Plaut v Spendthrift

Farm, Inc, 514 US 211, 227; 115 S Ct 1447; 131 L Ed 2d 328 (1995) (addressing Congress’s

authority to revise the judgments of federal courts). This case was still on appeal when the

amended version of MCL 769.1k was adopted; further, the costs in this case were imposed on

July 17, 2013. Therefore the amended act applies to this case.

The amended version of MCL 769.1k(1)(b)(iii) provides for an award of certain costs that

are not independently authorized by the statute for the sentencing offense, in contrast to the

amended version of MCL 769.1k(1)(b)(ii), which provides that a 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.” This Court must give effect

to every word, phrase, and clause and avoid an interpretation that would render any part of the

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statute surplusage or nugatory.” Cunningham, 496 Mich at 154 (quotation marks and citation

omitted). MCL 769.1k(1)(b)(ii) would be rendered surplusage if MCL 769.1k(1)(b)(iii) merely

provided for the imposition of costs that were separately authorized by the statute for the

underlying offense, given that MCL 769.1k(1)(b)(ii) already provides for the imposition of such

costs. We therefore conclude that MCL 769.1k(1)(b)(iii) authorizes the imposition of costs

independently of the statute for the sentencing offense.

At oral argument, defense counsel argued that the amended version of MCL 769.1k does

not fix the problem identified in Cunningham. In essence, defendant interprets Cunningham as

requiring that the separate authority for the imposition of court costs derive from a “penal”

statute other than the “procedural” provisions of MCL 769.1k. However, such an interpretation

would render nugatory other provisions of MCL 769.1k. Moreover. we find such an

interpretation of Cunningham strained in light of the Court’s limited conclusion that it did not

“believe that the Legislature intended MCL 769.1k(1)(b)(ii) to provide courts with the

independent authority to impose ‘any cost.’ ” Cunningham, 496 Mich at 159. Nothing in the

Cunningham opinion leads to the conclusion that the Legislature is forbidden from granting trial

courts the authority to impose reasonable court costs independent of the statute for a sentencing

offense, or that the Legislature is forbidden to place such authority within MCL 769.1k itself.5

In light of the adoption of 2014 PA 352, the trial court’s imposition of costs was not

erroneous.6 However, although the costs imposed in this case need not be separately calculated,

5

To the contrary, the Court in Cunningham expressly stated that “[g]iven the Legislature’s use of

the phrase ‘any cost,” we believe that the Legislature intended MCL 769.1k(1)(b)(ii) to

incorporate by reference not only existing statutory provisions that provide courts with the

authority to impose specific costs, but also future provisions that the Legislature might enact

providing courts with the same authority, unless the Legislature states to the contrary.

Cunningham, 496 Mich at 159 n 12 (emphasis in original). There is nothing within Cunningham

that precludes the Legislature from adopting such “future” provisions within the context of

MCL 769.1k itself.

6

We again note that our Supreme Court, in remanding this case to this Court, directed that we

consider, in light of Cunningham, whether the trial court had improperly imposed court costs,

and if so, whether its assessment of $500 in court costs constitutes plain error affecting the

defendant’s substantial rights. Konopka, 497 Mich at 863-864. The Court further directed, in

that context, that we contrast People v Franklin, 491 Mich 916 (2012), with Johnson v United

States, 520 US 461, 467-468; [117 S Ct 1544; 137 L Ed 2d 718] (1997). Konopka, 497 Mich at

863-864. Franklin and Johnson presented the issue of whether an error is “plain” when settled

caselaw changes between the time of a lower court decision and its consideration on appeal.

Compare Franklin, 491 Mich 916, with Johnson, 520 US 461. In light of the post-Cunningham

legislative amendment of MCL 769.1k, its impact on applicability of Cunningham insofar as it

relates to this defendant, and the resulting changed circumstances since the issuance of the

Supreme Court’s remand order, and because we consequently find that the trial court did not

commit plain error requiring reversal (although we remand for articulation of a factual basis for

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MCL 769.1k(1)(b)(iii), the trial court did not establish a factual basis, under the subsequently

amended statute, for the $500 in costs imposed. Indeed, it could not have done so at that time.

However, without a factual basis for the costs imposed, we cannot determine whether the costs

imposed were reasonably related to the actual costs, as required by MCL 769.1k(1)(b)(iii). In

this case, defendant specifically challenges the lack of reasoning for the costs imposed, and we

find that he should be given the opportunity to challenge the reasonableness of the costs below.

See Sanders I, 296 Mich App at 715. We therefore remand to the trial court for further

proceedings to establish a factual basis for the $500 in costs imposed, under

MCL 769.1k(1)(b)(iii), or to alter that figure, if appropriate.

IV. CONSTITUTIONAL CHALLENGES

As noted, defendant’s reply brief on appeal suggested the existence of “possible

responsive arguments,” of a constitutional nature, to the amended version of MCL 769.1k. This

Court ordered supplemental briefing on those issues. Defendant’s supplemental brief raised

three constitutional issues: (1) separation of powers; (2) equal protection and due process; and

(3) ex post facto violation. We review de novo these constitutional issues, People v Fonville,

291 Mich App 363, 376; 804 NW2d 878 (2011), and consider each of them in turn.

The party challenging the constitutionality of a statute has the burden of proving the

law’s invalidity. People v Sadows, 283 Mich App 65, 67; 768 NW2d 93 (2009). When

evaluating the constitutionality of a statute, we presume that statutes are constitutional and

“exercise the power to declare a law unconstitutional with extreme caution, and we never

exercise it where serious doubt exists with regard to a conflict.” Phillips v Mirac, Inc, 470 Mich

415, 422; 685 NW2d 174 (2004). We indulge “every reasonable presumption” in favor of a

statute’s validity. Id. at 423. A statute is not unconstitutional merely because it is appears

“undesirable, unfair, unjust, or inhumane” or because it appears that the statute “is unwise or

results in bad policy.” People v Boomer, 250 Mich App 534, 538; 655 NW2d 255 (2002). Such

arguments should be addressed to the Legislature. Id. Rather, we will construe a statute as

constitutional unless its unconstitutionality is “clearly apparent.” People v Harper, 479 Mich

599, 621; 739 NW2d 523 (2007), cert den 552 US 1232; 128 S Ct 1444; 170 L Ed2d 278 (2008).

A. SEPARATION OF POWERS

Defendant first argues that the amended version of MCL 769.1k violates the separation of

powers doctrine. According to defendant, the Legislature improperly dismantled the Michigan

Supreme Court’s decision in Cunningham by declaring the statutory amendment to be curative.

We disagree.

Const 1963, art 3, § 2 states:

The powers of government are divided into three branches: legislative,

executive and judicial. No person exercising powers of one branch shall exercise

the imposition of costs under the new statute), we do not find Franklin and Johnson applicable to

the instant case, and therefore deem it unnecessary to further contrast those cases.

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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.” Const 1963, art 4, § 1. “Simply put, legislative power is the power to make

laws.” In re Rovas Complaint, 482 Mich 90, 98; 754 NW2d 259 (2008). By contrast, a defining

aspect of judicial power is the interpretation of law. Id. at 98, citing Marbury v Madison, 5 US

(1 Cranch) 137; 2 L Ed 60 (1803).

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. [In re Manufacturer’s Freight Forwarding Co, 294 Mich 57, 63; 292 NW

678 (1940) (quotation marks and citation omitted).]

“[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[.]”

Oakland Co Taxpayers’ League v Bd of Supervisors of Oakland Co, 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). “[T]he advisability or

wisdom of statutory enactments, which are not violative of the constitutional provisions, is a

matter for legislative consideration and not for this Court.” Oakland Co Taxpayers’ League, 355

Mich at 323-324, citing Huron-Clinton Metro Auth v Bd of Supervisors, 300 Mich 1; 1 NW2d

430 (1942). “In accordance with the constitution’s separation of powers, this Court 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.” In re Rovas Complaint, 482 Mich

at 98 (quotation marks, brackets, and citation omitted).

In Romein v Gen Motors Corp, 436 Mich 515, 536-539; 462 NW2d 555 (1990), reh den

437 Mich 1202 (1990), aff’d 503 US 181; 112 S Ct 1105; 117 L Ed 2d 328 (1992), our Supreme

Court held that the Legislature’s retroactive amendment of a statute regarding coordination of

worker’s compensation benefits did not violate the separate of powers clause. The history of the

statute at issue in Romein was as follows: In 1981, the Legislature enacted 1981 PA 203, which

included a provision in MCL 418.354 allowing the coordination of worker’s compensation

benefits with employer-funded pension plan payments. Id. at 521. In Franks v White Pine

Copper Div, 422 Mich 636; 375 NW2d 715 (1985), reh den sub nom Chambers v Gen Motors

Corp, 424 Mich 1202 (1985), superseded by statute as stated in Romein, 436 Mich at 523, our

Supreme Court held that MCL 418.354 permitted the coordination of benefits regardless of the

date of injury because the Legislature did not state an intent to limit the coordination provision to

employees who were injured after the effective date of the statute. See Romein, 436 Mich at

522-523. The Legislature then enacted 1987 PA 28, which indicated that the coordination of

benefits provision of 1981 PA 203 was not intended to reduce benefits for employees injured

before the effective date of the 1981 statute. Id. at 523. 1987 PA 28 “retroactively amended

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[MCL 418.354] and prevented any coordination of benefits for claims arising from injuries

which occurred before March 31, 1982.” Id.

Our Supreme Court held in Romein that 1987 PA 28 did not violate the separation of

powers clause of the Michigan Constitution:

The operative provisions of the statute do not encroach upon the sphere of

the judiciary. Rather, they merely repeal the act that Chambers construed. That

prior statute is superseded by 1987 PA 28 and the amendatory act expressly

indicates that it is to be applied retroactively. This enactment is a valid exercise

of the Legislature’s authority to retroactively amend legislation perceived to have

been misconstrued by the judiciary. Such retroactive amendments based on prior

judicial decisions are constitutional if the statute comports with the requirements

of the Contract and Due Process Clauses of the federal and state constitutions, and

so long as the retroactive provisions of the statute do not impair final judgments.

Numerous courts have recognized that the Legislature may cure the

judicial misinterpretation of a statute. For instance, the federal courts have upheld

statutes that retroactively abrogate statutory rights, at least where the repealing

statute does not impair final judgments. In Seese v Bethlehem Steel Co, 168 F2d

58, 62 (CA 4, 1948), the court reasoned that the Legislature’s enactment of a

retroactive statute repealing the effects of a prior judicial decision is not an

exercise of judicial power[.] [Romein, 436 Mich at 537 (citation and emphasis

omitted).]

The Court in Romein noted that “[c]ourts have consistently upheld the retroactive application of

‘curative’ legislation which corrects defects subsequently discovered in a statute and which

restores what Congress had always believed the law to be.” Id. at 538, quoting Long v United

States Internal Revenue Serv, 742 F2d 1173, 1183 (CA 9, 1984), subsequent proceedings vacated

on other grounds 487 US 1201; 108 S Ct 1839; 101 L Ed 2d 878 (1988). The Court also noted

that “if the defendants’ separation of powers claim had merit as applied to the curative statute

challenged here, the power of the Legislature to enact curative and remedial legislation would be

severely curtailed, even where the statute does not violate constitutional due process limits.”

Romein, 436 Mich at 538-539. Such a consequence would “represent a judicial usurpation of

what is properly a legislative function.” Id.

The Supreme Court’s reasoning in Romein is applicable here. Our Supreme Court

interpreted MCL 769.1k as it existed at the time; contrary to defendant’s characterization, the

Court did not declare the law constitutionally invalid. Following the issuance of Cunningham,

the Legislature amended MCL 769.1k, effective on October 17, 2014. See 2014 PA 352. The

enacting sections of 2014 PA 352 state that the amended statute applies to all costs ordered or

assessed under MCL 769.1k before June 18, 2014, i.e., the date of the Cunningham decision, and

after the effective date of the amended act. Further, the Legislature stated that the amended act

was a curative measure addressing courts’ authority to impose costs under MCL 769.1k before

the issuance of Cunningham. 2014 PA 352. The amended version of MCL 769.1k(1)(b)(iii)

provides for an award of costs that is not independently authorized by the statute for the

sentencing offense.

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The Legislature’s enactment of 2014 PA 352 did not encroach on the sphere of the

judiciary. Instead, the Legislature merely amended the statute that Cunningham had construed.

The Legislature was permitted to retroactively amend the statute that it perceived to have been

misconstrued by the judiciary, as long as the statute comported with the contract and due process

clauses of the federal and state constitutions. Romein, 436 Mich at 537. Defendant does not

claim any contract clause violation, and as discussed below, defendant has not established a due

process violation. Accordingly, defendant has not established a violation of the separation of

powers clause of the Michigan constitution.

B. DUE PROCESS/EQUAL PROTECTION

Defendant further asserts an equal protection and due process challenge to the amended

version of MCL 769.1k. Defendant argues that the amended statute creates different classes of

citizens because the statute allows the imposition of costs on defendants sentenced before

June 18, 2014, i.e., the date of the Cunningham decision, and further allows costs to be imposed

on defendants sentenced after the effective date of the amended statute; yet it does not authorize

the imposition of costs on defendants sentenced between those dates. Further, defendant argues

that civil litigants, unlike criminal defendants, are not required to pay costs for court operating

expenses. On the basis of these observations, defendant maintains that the amended version of

MCL 769.1k “may well violate state and federal protections against [sic] due process of law and

equal protection” (emphasis added).

Initially, we note that defendant fails to cite any pertinent authority or to address the legal

standards for analyzing an equal protection or due process claim. Nor does defendant articulate

whether her due process claim is one of “substantive” or “procedural” due process. “An

appellant may not merely announce his position and leave it to this Court to discover and

rationalize the basis for his claims, nor may he give only cursory treatment with little or no

citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480

(1998). “An appellant’s failure to properly address the merits of his assertion of error constitutes

abandonment of the issue.” People v Harris, 261 Mich App 44, 50; 680 NW2d 17 (2004).

Nonetheless, we will address the issue, and because defendant identifies no “procedural”

irregularities, deem her due process claim to be one of “substantive” due process.

The United States and Michigan constitutions require that no one may be deprived of life,

liberty or property without due process of law. US Const, Am V; US Const, Am XIV; Const

1963, art 1, § 17; People v Bearss, 463 Mich 623, 629; 625 NW2d 10 (2001). For a challenge to

a statue on the grounds of violation of substantive due process, a challenger must show that a

statute is unrelated to a legitimate government purpose and thus essentially arbitrary. See

Wysocki v Kivi, 248 Mich App 346, 367; 639 NW2d 572 (2001). Further:

Both the United States and Michigan Constitutions guarantee equal

protection of the law. To determine whether a legislative classification violates

equal protection, the reviewing court applies one of three tests. If the legislation

creates an inherently suspect classification or affects a fundamental interest, the

“strict scrutiny” test applies. Other classifications that are suspect but not

inherently suspect are subject to the “substantial relationship” test. However,

social and economic legislation is generally examined under the traditional

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“rational basis” test. [Zdrojewski v Murphy, 254 Mich App 50, 79; 657 NW2d

721 (2002) (citations omitted).]

In a challenge brought under brought under the Equal Protection Clause, US Const Am XIV;

Const 1963, art 1, § 2, a defendant must show that he was treated differently than other persons

who were similarly situated and that there exists no rational basis for such disparate treatment.

See Wysocki v Kivi, 248 Mich App 346, 367; 639 NW2d 572 (2001).

Both substantive due process and equal protection challenges (in the absence of a highly

suspect category such as race, national origin, or ethnicity or a category receiving heightened

scrutiny such as legitimacy or gender), are subject to rational basis review, i.e., the consideration

of whether the legislation is rationally related to a legitimate government purpose. See Crego v

Coleman, 463 Mich 248, 259; 615 NW2d 218 (2000). Inherently suspect classifications subject

to strict scrutiny include race, ethnicity, and national origin. Phillips, 251 Mich App at 596. No

such classifications are alleged here, nor are classes subject to the intermediate “substantial

relationship” test, such as gender and mental capacity. Id. Also, the disparate treatment of

criminal offenders is generally viewed as not affecting a person’s fundamental interests. People

v Haynes, 256 Mich App 341, 345; 664 NW2d 225 (2003). We thus conclude that the rational

basis test applies in this case.

Under the rational basis test, legislation is presumed to be constitutional and will

survive review if the classification scheme is rationally related to a legitimate

governmental purpose. The burden of proof is on the person attacking the

legislation to show that the classification is arbitrary. Rational-basis review does

not test the wisdom, need or appropriateness of the legislation, and the challenged

statute is not invalid for lack of mathematical precision in its classification or

because it results in some inequity. [Zdrojewski, 254 Mich App at 80 (quotation

marks and citations omitted).]

The test to determine whether legislation violates substantive due process protections is

essentially the same as the test under the equal protection clause. Phillips, 251 Mich App at 598;

Sleet, 193 Mich App at 605-606.

In the instant case, defendant contends that 2014 PA 352 classifies criminal defendants

based on the date that the defendant was sentenced. “Classifications based upon cutoff dates . . .

are not by themselves arbitrary or unreasonable.” Sleet, 193 Mich App at 605, 607. Defendant

has not established that the classifications established by 2014 PA 352 are arbitrary. The statute

is rationally related to this legitimate purpose because it provides for the collection of costs from

criminal defendants. MCL 769.1k(1)(b)(iii). See Dawson v Secretary of State, 274 Mich App

723, 739; 739 NW2d 339 (2007) (opinion of Wilder, J.) (concluding that a classification scheme

for assessing driver responsibility fees from persons convicted of certain offenses was rationally

related to the legitimate governmental purpose of generating revenue from persons who impose

costs on the government and society). The exclusion from this costs provision of criminal

defendants sentenced between the issuance of Cunningham and the enactment of the amended

statute is rationally related to the legitimate goal to respect the entry of judgments not awarding

costs during the period that the Cunningham interpretation of MCL 769.1k was in effect. The

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fact that the statute may result in some inequity does not by itself render the statute invalid.

Zdrojewski, 254 Mich App at 80.

Further, with regard to civil litigants, the Legislature may rationally enact laws that treat

criminal defendants differently from civil litigants. Because “the state, including its local

subdivisions, is responsible for costs associated with arresting, processing, and adjudicating

individuals” who commit criminal offenses, the classification scheme 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.” See

Dawson v Sec of State, 274 Mich App 723, 738; 739 NW2d 339 (2007).7 Defendant has failed to

show that any classifications created by the 2014 PA 352 are arbitrary. Zdrojewski, 254 Mich

App at 80. We therefore reject her equal protection and substantive due process claims.

C. EX POST FACTO VIOLATION

Defendant further argues that application of the amended statute violates the

constitutional prohibitions on ex post facto punishments because she committed the sentencing

offenses before the effective date of the amendment of MCL 769.1k. We disagree.

The Ex Post Facto Clauses of the United States and Michigan

Constitutions bar the retroactive application of a law if the law: (1) punishes an

act that was innocent when the act was committed; (2) makes an act a more

serious criminal offense; (3) increases the punishment for a crime; or (4) allows

the prosecution to convict on less evidence. [People v Earl, 495 Mich 33, 37; 845

NW2d 721 (2014), citing Calder v Bull, 3 US (3 Dall) 386, 390; 1 L Ed 648

(1798).]

In this case, defendant argues that the amendment to MCL 769.1k increases the

punishment for a crime. We disagree.

The court costs imposed under MCL 769.1k(1)(b)(iii) are not a form of punishment. In

Earl, 495 Mich at 34-35, the trial court imposed a crime victim’s rights fund assessment of $130,

which was based on a statutory amendment that increased the amount of the assessment after the

defendant committed the sentencing offenses. Our Supreme Court held that the increase in the

crime victim’s rights fund assessment did not violate the bar on ex post facto laws. Id. at 35.

The Court stated:

7

Other jurisdictions have reached similar conclusions. “[C]ivil litigation is entirely different

from criminal litigation, and there is no requirement the two systems be similar.” People v

Rountree, 56 Cal 4th 823, 863; 157 Cal Rptr 3d 1; 301 P3d 150 (2013). “Criminal defendants

are also not situated similarly to civil litigants.” Id.; see also State v Lang, 129 Ohio St 3d 512,

525; 2011 Ohio 4215; 954 NE2d 596 (2011), recon den 130 Ohio St 3d 1419; 2011 Ohio 5605;

956 NE2d 310 (2011). Although not binding on this Court, case law from other jurisdictions

may be considered persuasive. Ammex, Inc v Dep’t of Treasury, 273 Mich App 623, 639 n 15;

732 NW2d 116 (2007).

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We conclude that an increase in the crime victim’s rights assessment does

not violate the bar on ex post facto laws because the Legislature’s intent in

enacting the assessment was civil in nature. Additionally, the purpose and effect

of the assessment is not so punitive as to negate the Legislature’s civil intent.

Therefore, we affirm the judgment of the Court of Appeals that the increase in the

crime victim’s rights assessment does not violate the Ex Post Facto Clauses of the

Michigan and United States Constitutions. [Id. at 49-50.]

In reaching this conclusion, the Earl Court explained the test to be applied in evaluating

an ex post facto claim:

Determining whether a law violates the Ex Post Fact Clause is a two-step inquiry.

The court must begin by determining whether the Legislature intended the statute

as a criminal punishment or a civil remedy. If the Legislature’s intention was to

impose a criminal punishment, retroactive application of the law violates the Ex

Post Fact Clause and the analysis is over. However, if the Legislature intended to

enact a civil remedy, the court must also ascertain whether the statutory scheme is

so punitive either in purpose or effect as to negate the State’s intention to deem it

civil. Stated another way, even if the text of the statute indicates the Legislature’s

intent to impose a civil remedy, we must determine whether the statute

nevertheless functions as a criminal punishment in application. [Id. at 38.]

The Earl Court went on to state that a statute is considered penal if imposes a disability in order

to reprimand the wrongdoer or deter others. Id. at 38-39. By contrast, a statute reflects a

legislative intent to enact a civil remedy if it imposes a disability to further a legitimate

governmental purpose. Id. at 39.

In Earl, 495 Mich at 39, our Supreme Court stated that although the crime victim’s rights

assessment was imposed at the time of sentencing, the Legislature did not express an intent to

make the assessment part of the sentence itself; the assessment did not have a label, function, or

purpose consistent with a criminal penalty. Whereas criminal fines are generally responsive to

conduct that is being punished, the crime victim’s rights assessment levied a flat fee irrespective

of the number or severity of the charges. Id. at 40-41. Also, there was only one crime victim’s

rights assessment for each criminal case, whereas the amount of a punitive fine generally

depends on the specific facts of the case. Id. at 41. Further, the crime victim’s rights assessment

had a non-punitive purpose of providing funding for crime victim’s services. Id. Although the

assessment placed a burden on convicted criminal defendants, the purpose of the assessment was

to fund programs that support crime victims. Id. at 42.

We reach a similar conclusion in this case. Although defendant is correct that court costs

imposed are generally reflected on the judgment of sentence and are only imposed on convicted

defendants, the language of MCL 769.1k(1)(b)(iii) does not reflect an intent by the Legislature to

make the imposition of court costs a criminal punishment. “The Legislature is aware that a fine

is generally a criminal punishment.” Id. at 40. Whereas MCL 769.1k(1)(b)(i) provides that a

court may impose a fine authorized by the statute for the sentencing offense,

MCL 769.1k(1)(b)(iii) does not reference a fine but instead provides for the imposition of costs

reasonably related to actual costs incurred in the operation of the court. Moreover, the costs are

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imposed without reference to the number or severity of the charges. In particular, 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, including” salaries and benefits

for court personnel, goods and services necessary to operate the court, and necessary expenses to

operate and maintain court buildings and facilities. MCL 769.1k(1)(b)(iii). As with the crime

victim’s rights assessment in Earl, MCL 769.1k(1)(b)(iii) provides only for one assessment of

costs in a particular case, “contrary to the manner in which punitive fines are usually imposed,

i.e., where the amount of the fine generally depends on the specific facts of the case.” Id. at 41.

In addition, MCL 769.1k(1)(b)(iii) has the non-punitive purpose of providing funding for court

operations. Although the costs provision places a burden on convicted criminal defendants, the

purpose is to fund the court’s operation rather than to punish convicted defendants.

We therefore conclude that the Legislature intended the costs provision of

MCL 769.1k(1)(b)(iii) to be a civil remedy. We next analyze whether the costs provision is

nonetheless so punitive in purpose or effect that it negates the Legislature’s civil intent. Earl,

495 Mich at 43. “[C]ourts will reject the legislature’s manifest intent to impose a civil remedy

only where a party challenging the statute provides the clearest proof that the statutory scheme is

so punitive either in purpose of effect to negate the intention to deem it civil.” Id. at 44

(quotation marks and punctuation omitted). We conclude that the costs provision of

MCL 769.1k(1)(b)(iii) is not so punitive.

In analyzing whether a law has the purpose or effect of being punitive, a court considers

the following factors:

[1] Whether the sanction involves an affirmative disability or restraint, [2]

whether it has historically been regarded as a punishment, [3] whether it comes

into play only on a finding of scienter, [4] whether its operation will promote the

traditional aims of punishment—retribution and deterrence, [5] whether the

behavior to which it applies is already a crime, [6] whether an alternative purpose

to which it may rationally be connected is assignable for it, and [7] whether it

appears excessive in relation to the alternative purpose assigned. [Earl, 495 Mich

at 44, quoting Kennedy v Mendoza-Martinez, 372 US 144, 168-169; 83 S Ct 554;

9 L Ed 2d 664 (1963).]

This list is not exhaustive. Earl, 495 Mich at 44.

Here, the first factor weighs against finding a punitive purpose or effect because the

assessment of costs does not comprise an affirmative disability or restraint. The imposition of

costs reasonably related to the actual costs incurred by the trial court does not constitute a

physical restraint or resemble imprisonment. Although the imposition of such costs, amounting

to $500 in this case, may have some consequential effect, “to hold that any governmental

regulation that has indirect punitive effects constitutes a punishment would undermine the

government’s ability to engage in effective regulation.” Earl, 495 Mich at 45, citing Smith v

Doe, 538 US 84, 102; 123 S Ct 1140; 155 L Ed 2d 164 (2003), reh den 538 US 1009; 123 S Ct

1925; 155 L Ed 2d 844 (2003). The second factor also weighs against a punitive purpose or

effect because there is no evidence that the imposition of court costs has been regarded in our

history or traditions as a form of criminal punishment. Although a fine has been regarded as

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punishment, costs under MCL 769.1k(1)(b)(iii) lack the characteristics of a fine because the

costs are to be imposed without regard to the specific facts of the case and the aim of the

assessment is to fund court operations. Earl, 495 Mich at 45.

The fourth factor weighs against a punitive purpose or effect because the imposition of

costs does not further the traditional punitive aims of retribution and deterrence. There is no

retributive purpose because the costs are assessed without regard to the factual nature of the

crimes or the number of convictions. Earl, 495 Mich at 46. Further, any deterrent effect of

imposing court costs is likely minimal given the other potential consequences of criminal

punishment such as incarceration and significant fines. Id. The sixth factor weighs against a

punitive purpose or effect because the imposition of court costs has a rational connection to the

non-punitive purpose of funding court operations. Any punitive effect is incidental to this non-

punitive purpose, and the decision to place this funding burden on criminal defendants is a

rational policy decision. See id. at 47. Finally, the seventh factor weights against a punitive

purpose or effect because the costs provision is not excessive with respect to its purpose. Each

convicted criminal defendant is subject to the costs assessment, which is imposed without regard

to the number of convictions and which must be reasonably related to the court’s actual costs

without separately calculating those costs involved in the particular case. MCL 769.1k(1)(b)(iii).

By requiring a reasonable relationship to actual costs, the statute ensures adequate funding for

the operation of the court without exceeding the purpose of the provision.

As in Earl, the third and fifth factors are not useful in the ex post facto analysis before

this Court in the instant case. Although a convicted criminal defendant’s underlying conduct

will always constitute a crime, the imposition of costs is not responsive to the defendant’s

specific conduct. A finding of scienter is also irrelevant because the statute provides for the

imposition of costs without reference to the level of criminal intent required in a particular case.

Therefore, these factors carry little weight in the analysis. Earl, 495 Mich at 48.

Overall, applying the above factors, we conclude defendant has failed to prove that the

costs provision in MCL 769.1k(1)(b)(iii) is so punitive in purpose or effect that it negates the

Legislature’s civil intent.

V. CONCLUSION

For the reasons stated, we affirm the trial court’s authority to impose court costs in the

instant case, but remand for determination of the factual basis for the costs imposed pursuant to

MCL 769.1k(1)(b)(iii). We do not retain jurisdiction.

/s/ Mark T. Boonstra

/s/ Michael J. Riordan

/s/ William B. Murphy

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