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 MIKE COX, ATTORNEY GENERAL CONST 1963, ART 1, � 24: CRIME VICTIMS: LEGISLATURE: CRIME VICTIM'S RIGHTS FUND ACT: Purposes for which revenues in the Crime
Victim's Rights Fund may be used Const 1963, art 1, � 24 does not create a constitutionally
dedicated fund or itself restrict the purposes for which monies in the Crime
Victim's Rights Fund created under the Crime Victim's Rights Fund Act, 1989 PA
196, MCL 780.901 et seq, may be used. Standing alone, art 1, � 24 does
not prevent the Legislature from using revenues in excess of those needed to pay
for crime victim rights, for other purposes. However, the Legislature should be
aware of the limitations imposed by Const 1963, art 8, � 9, which requires that
fines assessed for any breach of the penal laws be used to support libraries. If
excess revenue in the Crime Victim's Rights Fund is used for purposes other than
to enforce and pay for the crime victim rights enumerated in art 1, � 24, the
use could face scrutiny to determine if the assessments conflict with art 8, � 9
or other constitutional provisions. Opinion No. 7217 July 8, 2008 Honorable Bruce Caswell You have asked a series of questions concerning the Crime
Victim's Rights Fund (Fund) created by the Crime Victim's Rights Fund Act (Act),
1989 PA 196, MCL 780.901 et seq. You first ask whether assessment revenue
collected in the Fund may be used to fund services beyond those services
necessary or reasonably related to the specific crime victim rights enumerated
in Const 1963, art 1, � 24. You state that your questions are prompted by the introduction
of House Bill 5355, which would expand the purposes for which money in the Fund
could be spent to include the sex offender registry, the Amber alert missing
child notification system, prevention and treatment services for sexual assault
victims, and costs associated with polygraph examinations and forensic science
expert witness testimony.1 Const 1963, art 1, � 24, was added to the Michigan Constitution
in 1988 to afford crime victims certain constitutionally protected rights to be
enforced by laws enacted by the Legislature: 1) Crime victims, as defined by law, shall have the
following rights, as provided by law: The right to be treated with fairness and respect for their
dignity and privacy throughout the criminal justice process. The right to timely disposition of the case following arrest
of the accused. The right to be reasonably protected from the accused
throughout the criminal justice process. The right to notification of court proceedings. The right to attend trial and all other court proceedings
the accused has the right to attend. The right to confer with the prosecution. The right to make a statement to the court at sentencing. The right to restitution. The right to information about the conviction, sentence,
imprisonment, and release of the accused. (2) The legislature may provide by law for the
enforcement of this section. (3) The legislature may provide for an assessment against
convicted defendants to pay for crime victims' rights. [Emphasis added.] Const 1963, art 1, � 24(3), thus, empowers the Legislature to
impose an assessment on convicted defendants to pay for certain enumerated crime
victims' rights. To accomplish that purpose, the Crime Victim's Rights Fund is
created by section 4 of the Act "as a separate fund in the state treasury." MCL
780.904(1). The State Treasurer "shall credit to the fund all amounts received
under this act and as provided by law." MCL 780.904(1). The Treasurer is
directed to invest money in the Fund and all earnings from the Fund must be
credited to the Fund. Assessment revenue is provided for under section 5 of the Act:
The court shall order each person charged with an
offense that is a felony, a serious misdemeanor, or a specified misdemeanor,
that is resolved by conviction, by assignment of the defendant to youthful
trainee status, by a delayed sentence or deferred entry of judgment of
guilt, or in another way that is not an acquittal or unconditional dismissal
to pay an assessment. [MCL 780.905(1); emphasis added.] The revenue generated by the Act is the result of an assessment
of $60 imposed on each person convicted of a felony, $50 on those convicted of
certain misdemeanors, and $20 on some juvenile offenders. MCL 780.905(1)(a) and
(b) and (3). MCL 780.905(4) states that "[e]xcept as otherwise provided under
this act, an assessment under this section shall be used to pay for crime
victim's rights services." MCL 780.901(b) defines crime victim's rights services
as "services required to implement fully the crime victim's rights act [1985 PA
87]."2 The Crime Victims Services Commission3 has the duty
to "[i]nvestigate and determine the amount of revenue needed to pay for crime
victim's rights services." MCL 780.903(a). You advise that the Crime Victims
Services Commission will adequately fund the crime victim's rights services as
required by the Act. Your concern is with use of the "excess" revenue.4 As a general rule, if the use of a fund is not constitutionally
restricted, the fund is subject to the control of the Legislature. This
principle was explained in Michigan Sheriffs' Ass'n v Dep't of Treasury,
75 Mich App 516; 255 NW2d 666 (1977), in which the Sheriffs' Association
challenged a transfer of funds from the Marine Safety Fund to the State
Waterways Fund, arguing that fees collected by the State and placed in a fund
established for a specified purpose could not be utilized for any other purpose.
The Court of Appeals disagreed, explaining that a fund does not become immune
from appropriation merely by designating a purpose for which it may be expended.
Id., at 529. The Court, relying on case authority from other states,
concluded that the fact that the Legislature may provide that amounts, when
collected, shall be placed in a certain fund does not ordinarily preclude a
later Legislature from ordering it paid into another fund or from abolishing it
altogether.5 Id., at 528-529 quoting Dep't of Public
Welfare v Haas, 15 Ill 2d 204; 154 NE2d 265 (1958). In so ruling, however,
the Court emphasized that a fund would become immune from transfer or
diversion by a subsequent Legislature if the diversion impaired a contractual or
trust obligation, such as arises where the State holds retirement funds or funds
obtained to repay specific indebtedness such as revenue bonds, or if the
diversion conflicted with a constitutional provision. Id., at 529-530.6
As its plain language reveals, art 1, � 24 does not create a
dedicated fund or speak in terms limiting the Legislature's power in this area.7
To the contrary, the emphasized language in art 1, � 24 subsection (1) expressly
empowers the Legislature to "defin[e] by law" who shall qualify as a crime
victim and to "provid[e] by law" for the nine enumerated rights. Similarly,
under subsection (2), the Legislature may "provide by law for the enforcement"
of art 1, � 24. The implementation details are left to the Legislature's
discretion. But it is for the courts to determine whether the Legislature has
implemented art 1, � 24 consistent with the meaning of its terms. WPW
Acquisition Co v City of Troy, 466 Mich 117, 125-126; 643 NW2d 564 (2002).
Therefore, to the extent that the Legislature intends to authorize uses of the
Fund to pay for the constitutionally enumerated crime victim's rights, it must
consider whether each proposed use is within the language of art 1, � 24, given
the principles of constitutional construction that guide the Court. The primary rule of constitutional construction is to give
effect to the intent of the people of the State of Michigan who ratified the
Constitution by applying what is known as the rule of common understanding.
Wayne County v Hathcock, 471 Mich 445, 468; 684 NW2d 765 (2004). Whether any given use of the Crime Victim's Rights Fund is
within the purposes of art 1, � 24 will turn on whether that use fairly comports
with the description of the enumerated rights. The courts must ultimately
determine whether what the Legislature has done meets the constitutional
standard. Goldstone v Bloomfield Twp Public Library, 479 Mich 554, 562, n
6; 737 NW2d 476 (2007). Where the Court finds that the Legislature has acted
reasonably in the implementation of a constitutional provision, consistent with
the meaning of its terms, the Court will defer to the judgment of the
Legislature. Id., at 565. If, as your question suggests, the Legislature should authorize
excess revenue in the Crime Victim's Right Fund to be spent for purposes other
than those enumerated in art 1, � 24, consideration must then be given to Const
1963, art 8, � 9 and the case law interpreting it. Const 1963, art 8, � 9 strictly limits the purposes for which
"fines assessed" for a breach of the penal laws may be used: 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.] Art 8, � 9 requires all penal fines to be exclusively applied to
the support of libraries, and art 1, � 24 authorizes assessments against
convicted defendants to support crime victim rights. When two provisions of the
Constitution appear to conflict, it is the court's duty to reconcile them as far
as possible with an eye to accomplish the result intended by the pertinent
sections when construed together. Kunzig v Liquor Control Comm, 327 Mich
474, 480-481; 42 NW2d 247 (1950). Here, while art 8, � 9 requires that penal
fines be applied to the support of libraries, to the extent the assessment
authorized under art 1, � 24 could arguably be regarded as a "penal fine," art
1, � 24 can be harmonized with art 8, � 9 as providing an express exception to
the otherwise applicable general rule. The question remains whether assessments imposed on convicted
defendants may be used for purposes other than paying for and enforcing the
crime victim rights enumerated in art 1, � 24. Under art 8, � 9, the
Legislature is not free to make its own disposition of "penal fines" or to allow
charges against "penal fines" for expenses. Saginaw Public Libraries Bd v
Judges of the 70th Dist Court, 118 Mich App 379, 388-389; 325
NW2d 777 (1982). Moreover, whether a particular charge is
named a "cost" or "fee" or "assessment" or "fine" is not determinative of its
character; rather, its substantive nature will control whether it is a "penal
fine" that must be applied to the support of libraries. As explained by the
Court in People v Barber, 14 Mich App 395, 401; 165 NW2d 608 (1968),
"legislative labeling cannot preclude judicial determination, or excuse a court
from its responsibility to give realistic construction to terms employed in
statutes." The Court in Saginaw Public Libraries further instructed,
however, that nothing in the history of art 8, � 9 or its predecessors requires
all sums of money received for violations of state law to be "fines" within the
meaning of the constitutional provision. In the Barber case, the Court struck down as violative of
art 8, � 9 a statute that imposed an "assessment" in an amount equal to ten
percent of every fine, penalty, and forfeiture imposed and collected by the
courts for most criminal offenses to be deposited into the law enforcement
officers training fund. The Court explained that costs, to be taxable as costs
and not penal fines payable to the support of libraries, must bear some direct
relation to actual costs incurred in a given prosecution. 14 Mich App at 402.
The Court also expressed the concern that any effort to require the courts to
collect assessments from criminal defendants that were not penal fines or costs
bearing some direct relationship to the costs incurred in prosecution could
place the courts in a tax-collecting role in violation of the governmental
separation of powers as set forth in Const 1963, art 3, � 2.8
14 Mich App at 405. Subsequently, the Court in Saginaw Public Libraries
distinguished the Barber case and determined that a $5 judgment fee was
compensatory in nature and not a "penal fine" within the meaning of art 8, � 9
to the extent it represented a "reasonable base cost by the state, under a
statute permitting its collection in a fixed amount." 118 Mich App at 389-390.
Thus, while not all revenues collected by the courts in
connection with violations of the State's penal laws must be applied to support
libraries according to the Saginaw Public Libraries case, to the extent
such revenues are not used to pay for the crime victims' rights enumerated in
art 1, � 24, the "assessments" imposed on each person convicted of a felony,
certain misdemeanors, and other offenses pursuant to the Act could face scrutiny
to determine whether they are "fines assessed . . . for any breach of the penal
laws" within the meaning of art 8, � 9. If the particular use of the Fund's
revenues does not reasonably implement art 1, � 24, the expenditure may be found
to violate art 8, � 9, if not applied to the support of public libraries and
county law libraries, or art 3, � 2.9 It is my opinion, therefore, in answer to your first question,
that Const 1963, art 1, � 24 does not create a constitutionally dedicated fund
or itself restrict the purposes for which monies in the Crime Victim's Rights
Fund created under the Crime Victim's Rights Fund Act, 1989 PA 196, MCL 780.901
et seq, may be used. Standing alone, art 1, � 24 does not prevent the
Legislature from using revenues in excess of those needed to pay for crime
victim rights, for other purposes. However, the Legislature should be aware of
the limitations imposed by Const 1963, art 8, � 9, which requires that fines
assessed for any breach of the penal laws be used to support libraries. If
excess revenue in the Crime Victim's Rights Fund is used for purposes other than
to enforce and pay for the crime victim rights enumerated in art 1, � 24, the
use could face scrutiny to determine if the assessments conflict with art 8, � 9
or other constitutional provisions. This answer to your first question makes response to your
remaining questions unnecessary. MIKE COX
State Representative
The Capitol
Lansing, MI 48909
Attorney General
1 Because the Attorney General typically does not
opine on pending legislative bills, this opinion will not specifically address
HB 5355. See OAG, 2007-2008, No 7203, p___, n 4 (April 25, 2007). Rather, it
will attempt to provide guiding principles that can be used more broadly to
address issues presented by HB 5355 as well as future proposed legislation.
2 The Crime Victim's Rights Act (CVRA), 1985 PA 87, MCL 780.751 et
seq, together with art 1, � 24, "underscore the rights of crime victims . .
. in Michigan." People v Peters, 449 Mich 515, 524; 537 NW2d 160 (1995).
The CVRA, while enacted before art 1, � 24 was adopted, is regarded as one of
the statutes that implements the crime victim rights afforded by art 1, � 24.
See People v Cobbs, 443 Mich 276, 285, n 8; 505 NW2d 208 (1993).
3 The Crime Victims Services Commission was originally created by
1976 PA 223, MCL 18.351 et seq. Then named the Crime Victims Compensation
Board, it was situated within the Michigan Department of Management and Budget.
It obtained its current name in 1996 PA 519 and was later transferred to the
Michigan Department of Community Health by Executive Order 1997-10 (identified
as E.R.O. 1997-9 and compiled at MCL 780.921).
4 HB 5355 proposes to use only the excess assessment balance to fund
the proposed law enforcement initiatives. In the context of your question,
excess revenue is the money that has been determined by the Crime Victims
Services Commission not to be necessary to pay for crime victim's rights
services. MCL 780.903(a). To further clarify the meaning of "excess" monies as
used in this opinion, it warrants mentioning that the Legislature sets the
parameters within which crime victims are compensated for their losses and
provided other services. For example, certain property losses suffered by crime
victims are not compensable, nor are losses that exceed $15,000 in amount or
burial expenses that exceed $2,000. See MCL 18.361.
5 "[O]ne legislature cannot limit the power of successor legislatures
to appropriate funds." Frederick v Presque Isle County Circuit Judge, 439
Mich 1, 14; 476 NW2d 142 (1991), citing Harsha v Detroit, 261 Mich 586,
590; 246 NW 849 (1933). The Sheriff's Ass'n case was followed by the Iowa
Supreme Court in Des Moines Metropolitan Area Solid Waste Agency v Branstad,
504 NW2d 888, 890; 1993 Iowa Sup LEXIS 198 (1993).
6 OAG, 1979-1980, No 5558, p 380, 381-382 (September 10, 1979),
applied the holding in Michigan Sheriffs' Ass'n to a transfer of
constitutionally protected funds. Attorney General Frank J. Kelley opined that
an executive or legislative transfer, diversion, or final appropriation of road
program funds to programs other than road programs would be in direct
contravention of Const 1963, art 9, � 9, which specifies the purposes for which
those funds may be used. See also OAG, 1997-1998, No 6971, p 112 (January 29,
1998), tracing the history of funding for the Michigan Veterans' Trust Fund from
statutorily based to constitutionally based and the different limitations
applicable to each.
7 In contrast, see Const 1963, art 9, �� 37-39, which provide details
concerning the Michigan Veterans' Trust Fund. Examples of constitutionally
dedicated funds include the transportation fund, Const 1963, art 9, � 9, and the
state school aid fund, Const 1963, art 9, � 11.
8 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 powers properly belonging to
another branch except as expressly provided in this constitution."
9 The Crime Victim's Rights Fund receives money not only from
assessments pursuant to section 5 of the Act, MCL 780.905, but also from federal
criminal fines. See: Crime Victim Services Commission Annual Report FY 2006,
http://www.michigan.gov/documents/Ar99-00_9713_7.PDF (last checked June 6,
2008), p 3; 18 USC 3663(c). Care must, therefore, also be taken to ensure that
there is no diversion of federal monies from the Fund.