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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6576

March 10, 1989

BUILDING OFFICIALS AND INSPECTORS:

Regulation by state

CONSTITUTIONAL LAW:

Const 1963, art 9, Sec. 29--regulation of building officials, plan reviewers and inspectors

Const 1963, art 9, Sec. 29--state financing of new services to be performed by prosecuting attorney

LAW ENFORCEMENT:

Services to be rendered defendants in criminal cases

PROSECUTING ATTORNEYS:

Services to be rendered crime victims and defendants in criminal cases

The Crime Victim's Rights Act, which requires a county prosecuting attorney to provide certain services to crime victims, imposes new services to be provided by the county prosecuting attorney that must be financed by the state as required by Const 1963, art 9, Sec. 29.

MCL 767.40a; MSA 28.980(1), which requires a county prosecuting attorney or the investigative law enforcement agency to assist a person accused of a crime in locating and serving process upon witnesses in a criminal case, imposes new services to be provided that must be financed by the state as required by Const 1963, art 9, Sec. 29.

The Building Officials and Inspectors Act, which regulates and licenses building officials, plan reviewers and inspectors, does not impose new or increased services to be performed by local units of government requiring state financing under Const 1963, art 9, Sec. 29.

You have requested my opinion as to whether three legislative enactments, 1985 PA 87, 1986 PA 46, and 1986 PA 54, fall within the purview of Const 1963, art 9, Sec. 29, the Headlee Amendment.

Const 1963, art 9, Sec. 29, provides:

"The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency or units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18."

Thus, the question to be addressed is whether the three statutes referenced above either mandate new activities or services or increase the level of existing activity or service by local units of government and, if so, whether appropriations must, therefore, be provided by the state.

Your first question concerns the Crime Victim's Rights Act, 1985 PA 87, MCL 780.751 et seq; MSA 28.1287(751) et seq, which requires, inter alia, the provision of various forms of information to a victim by the law enforcement agency investigating the crime; written notices to a victim by the prosecuting attorney; conferences with the prosecuting attorney at specified periods throughout the criminal proceedings; creation and maintenance of an escrow account for funds derived by a person convicted of a crime from the sale of thoughts or recollection relating to the offense committed; and distribution of funds therefrom to the victim in the form of restitution.

The Crime Victim's Rights Act requires prosecuting attorneys to provide new services to victims of crime beyond that which existed prior to adoption of the Headlee Amendment. As prosecuting attorneys are legislatively compelled to provide these new services to victims of crime, the state must provide funds to compensate the local unit of government for such increased services. See OAG, 1979-1980, No 5594, p 473 (November 16, 1979).

Appropriations to fund such services were provided in 1986 PA 111, Sec. 17, 1987 PA 124, Sec. 1, 1987 PA 131, Sec. 1, and are currently provided in 1988 PA 323, Sec. 1.

It is my opinion, in answer to your first question, that the Crime Victim's Rights Act, which requires a county prosecuting attorney to provide certain services to crime victims, imposes new services to be provided by the county prosecuting attorney that must be financed by the state as required by Const 1963, art 9, Sec. 29.

Your second inquiry concerns MCL 767.40a; MSA 28.980(1), as amended by 1986 PA 46, which provides in pertinent part:

"(5) The prosecuting attorney or investigative law enforcement agency shall provide to the defendant, or defense counsel, upon request, reasonable assistance, including investigative assistance, as may be necessary to locate and serve process upon a witness. The request for assistance shall be made in writing by defendant or defense counsel not less than 10 days before the trial of the case or at such other time as the court directs. If the prosecuting attorney objects to a request by the defendant on the grounds that it is unreasonable, the prosecuting attorney shall file a pretrial motion before the court to hold a hearing to determine the reasonableness of the request."

Prior to this amendment, prosecuting attorneys had been required to endorse and, with limited exceptions, produce at trial res gestae witnesses. MCL 767.40; MSA 28.980, People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). The 1986 amendment to the statutory res gestae requirement has imposed upon the prosecuting attorney or law enforcement officials the additional duty of assisting in the locating of, and serving of process upon, any defense witness requested by the defense.

While no appropriation has been made to provide reimbursement for this additional activity, the Department of Management and Budget advises that no request for reimbursement for such activity has been submitted by any unit of local government. A request for reimbursement presented by a local unit of government may be presented to the Local Government Claims Review Board, MCL 21.240; MSA 5.3194(610).

It is my opinion, in answer to your second question, that MCL 767.40a; MSA 28.980(1), which requires a county prosecuting attorney or the investigative law enforcement agency to assist a person accused of a crime in locating and serving process upon witnesses in a criminal case, imposes new services to be provided that must be financed by the state as required by Const 1963, art 9, Sec. 29.

Your final inquiry concerns the Building Officials and Inspectors Registration Act, 1986 PA 54, MCL 338.2301 et seq; MSA 5.2949(32) et seq, which imposes a duty upon the State Construction Commission to regulate and license building officials, plan reviewers and inspectors. The enforcement mechanism for such registration is provided by the state and not local units of government. As such, the Building Officials and Inspectors Registration Act imposes no new activity or service upon local units of government, nor does it increase the level of activity of local governmental units. Therefore, the Act is not impacted by the Headlee Amendment.

Moreover, while MCL 338.2310(3); MSA 5.2949(41), permits a governmental subdivision to establish additional requirements or restrictions for such officials, any such action by local units of government would be voluntary in nature and would not constitute a "state requirement" for purposes of the Headlee Amendment. Such voluntary assumption of responsibilities, if any, would fall outside the purview of the Headlee Amendment. MCL 21.234(5)(h); MSA 5.3194(604)(5)(h), City of Ann Arbor v State of Michigan, 132 Mich App 132; 347 NW2d 10 (1984), lv den 425 Mich 857 (1986), OAG, 1981-1982, No 6022, p 514, 517 (January 7, 1982).

It is my opinion, in answer to your third question, that the Building Officials and Inspectors Act, which regulates and licenses building officials, plan reviewers and inspectors, does not impose new or increased services to be performed by local units of government requiring state financing under Const 1963, art 9, Sec. 29.

Frank J. Kelley

Attorney General

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