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

JENNIFER M. GRANHOLM, ATTORNEY GENERAL


CONSTITUTIONAL LAW:

COURTS:

FINES AND PENALTIES:

LIBRARIES:

Penal fines applicable to support of libraries under Const 1963, art 8,  9


Const 1963, art 8,  9, does not require that all revenues collected by courts for violation of state law which exceed the state's actual damages or costs of prosecution be applied to the support of the public libraries and county law libraries, regardless of whether they are designated as costs, damages, penalties, or otherwise. The determination of whether a particular monetary exaction constitutes a penal fine is subject to judicial scrutiny.


Opinion No. 7018

May 14, 1999


Honorable Beverly S. Hammerstrom
State Senator
The Capitol
Lansing, MI


You have asked if Const 1963, art 8,  9, requires that all revenues collected by courts for violation of state law which exceed the state's actual damages or costs of prosecution, be applied to the support of the public libraries and county law libraries, regardless of whether they are designated as costs, damages, or penalties, or otherwise.

In Const 1963, art 8 9, the people have continued1 Michigan's tradition of requiring that penal fines be used to support public libraries as follows:

The legislature shall provide by law for the establishment and support of public libraries which shall be available to all residents of the state under regulations adopted by the governing bodies thereof. All fines assessed and collected in the several counties, townships and cities for any breach of the penal laws shall be exclusively applied to the support of such public libraries, and county law libraries as provided by law.

(Emphasis added.)

Use of the phrase as provided by law in Const 1963, art 8,  9, means that the Legislature is required to implement the constitutional provision. Beach Grove Investment Co v Civil Rights Comm, 380 Mich 405, 418-419; 157 NW2d 213 (1968).

The Legislature has implemented Const 1963, art 8, 9, by enacting the distribution of penal fines to libraries act, 1964 PA 59, MCL 397.31 et seq; MSA 15.1793(1) et seq. Section 2 of that act provides that "[t]he proceeds of all fines for any breach of the penal laws of this state when collected in any county and paid into the county treasury . . . ." must be apportioned among public libraries and county libraries.

In People v Barber, 14 Mich App 395, 399; 165 NW2d 608 (1968), the court analyzed the validity of a statute, enacted pursuant to Const 1963, art 8, 9, that levied as costs an additional ten percent of every fine, penalty and forfeiture collected for criminal offenses. The additional ten percent was to be placed in the law enforcement officers' training fund. The court rejected the legislative designation of this additional ten percent as "costs" because it did not bear some direct relationship to the actual cost of the criminal prosecution. Rather, the court concluded that the additional ten percent was, in actuality, a supplemental fine superimposed on the original fine assessed against the criminal defendant. Viewed in this light, the statute was held to violate Const 1963, art 8, 9, because the supplemental penal fine monies were not used to support public libraries. This case teaches that legislative designation does not preclude the courts from determining whether a particular monetary exaction imposed on a defendant is a penal fine for purposes of Const 1963, art 8, 9.

More recently, in Saginaw Public Libraries v 70th Dist Court Judges, 118 Mich App 379; 325 NW2d 777 (1982), lv den, 417 Mich 974 (1983), the court addressed the validity, under Const 1963, art 8, 9, of judgment fees which were assessed as costs. Holding that the judgment fees were reasonable costs of prosecution and thus need not be used to support public libraries under Const 1963, art 8, 9, the court wrote as follows:

Defendants next contend that the trial judge erred by holding unconstitutional M.C.L. 600.8381; M.S.A. 27A.8381. This statute provides, in part:

"When fines and costs are assessed by a magistrate, a traffic bureau, or a judge of the district court, not less than $5.00 shall be assessed as costs and collected for each conviction or civil infraction determination and each guilty plea or civil infraction admission except for parking violations. Of the costs assessed and collected, for each conviction or civil infraction determination and each guilty plea or civil infraction admission, $5.00 shall be paid to the clerk of the district court who, on or before the fifteenth of each month, shall transmit it to the state treasurer. The state treasurer shall deposit 6% of the costs collected to the legislative retirement fund * * *; 9% of the costs collected to the judges' retirement fund * * *; and shall deposit the balance of the costs collected in the general fund."

In holding that the statute is constitutionally infirm, the circuit court found that the sum deposited to the general fund had no reasonable relation to the costs of the particular case and in reality was a tax rather than court costs. The question we must determine is whether the $5 "judgment fee" is a "penal fine" within the meaning of Const. 1963, art. 8, 9, or a "civil fine" within M.C.L. 257.909; M.S.A. 9.2609. If the fee is either a penal or civil fine, it must be applied exclusively for the support of libraries.

The Legislature is not free to make its own disposition of "penal fines" or to allow charges against "penal fines" for expenses. See, People ex rel. Detroit Board of Education v. Wayne County Treasurer, 8 Mich. 392 (1860). We find nothing in the history of Const. 1963, art. 8, 9, or its predecessors, which requires all sums of money received for violations of state law to be fines within the meaning of the constitutional provision. We hold that the collection of a reasonable base cost by the state, under a statute permitting its collection in a fixed amount, is not a penal fine within the meaning of the constitution. Further, this base cost is not a civil fine under M.C.L. 257.909; M.S.A. 9.2609.

118 Mich App, at pp 388-390. (Emphasis added.)

The decision in Saginaw Public Libraries, supra, compels the conclusion that not all revenues collected by the courts for violations of state law must be applied to support public libraries and county law libraries. The Legislature, in implementing Const 1963, art 8, 9, may reasonably designate the monetary exactions and costs imposed on defendants as penal fines, as civil fines,2 or as costs. When challenged in court, these legislative designations are subject to judicial scrutiny to determine whether, in actuality, the monetary exaction is indeed a penal fine that must be applied to the support of public libraries and county law libraries under Const 1963, art 8, 9.

It is the county treasurer's duty to collect all penal fines imposed by courts as punishment for violation of the state's criminal laws. The county treasurer must apportion the proceeds of these penal fines among the public libraries in the county. MCL 397.32; MSA 15.1793(2). As noted in n 2 above, the Legislature has required that civil fines for civil infractions that previously were misdemeanors shall continue to be used to support public libraries. MCL 257.909; MSA 9.2609. In the absence of a judicial determination to the contrary, such as that found in the Barber case, supra, costs and other expenses not designated as penal fines must be deposited and transmitted as required by applicable state law.

It is my opinion, therefore, that Const 1963, art 8,  9, does not require that all revenues collected by courts for violation of state law which exceed the state's actual damages or costs of prosecution be applied to the support of the public libraries and county law libraries, regardless of whether they are designated as costs, damages, penalties, or otherwise. The determination of whether a particular monetary exaction constitutes a penal fine is subject to judicial scrutiny.



JENNIFER M. GRANHOLM
Attorney General

1 The predecessor constitutional provisions are Const 1908, art 11, 14; Const 1850, art 13, 12; and Const 1835, art 10, 4.

2 In MCL 257.909; MSA 9.2609, the Legislature has provided that civil fines for civil infractions that used to be misdemeanors generating penal fines must be used to support public libraries and county law libraries as follows:

(1) A civil fine which is ordered under section 907 for a violation of this act or other state statute shall be exclusively applied to the support of public libraries and county law libraries in the same manner as is provided by law for penal fines assessed and collected for violation of a penal law of the state.
(2) Subsection (1) is intended to maintain a source of revenue for public libraries which previously received penal fines for misdemeanor violations of this act which are now civil infractions.