STATE OF MICHIGAN

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
State Representative
The Capitol
Lansing, MI 48909

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:

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 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:

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 70^th 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
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.