The Michigan Supreme Court changed direction Friday in a case that holds big implications for how local courts are funded. After initially agreeing to hear the case, the court issued an order dismissing a challenge to the much-criticized system that allows judges to order defendants to pay court costs after they are convicted or plead guilty.
A decision was highly anticipated since there’s wide agreement that Michigan’s system that allows judges to levy court costs on defendants is not fair. Instead, the court issued an order that said, "we are no longer persuaded that the questions presented should be reviewed by this Court.”
This was a surprise since the court earlier not only agreed to take the case, but it had accepted and read briefs filed by multiple parties and the justices heard oral arguments.
“Well I would say the Michigan Supreme Court has punted,” said Eve Brensike Primus, a University of Michigan law professor.
She told Michigan Public Radio the system was ripe to be challenged. She said, for example, it’s arbitrary because there’s no set fee schedule for judges to apply, so they’re operating with almost no guidance.
“These are different from the costs of restitution if someone has committed a crime and needs to pay back the costs of what they’ve done,” she said. “These are different from statutory fines that are imposed as part of an individual’s punishment.”
Also, judges in less-affluent jurisdictions might face pressure to impose court cost orders on defendants to help keep the lights on. That would be an unequal burden rife with possibilities for discrimination.
Primus said this case put the Supreme Court in a bind because court cost payments can make up about a third of local court budgets.
“To declare this statute facially unconstitutional upends the funding for the judicial system,” she said.
The legal challenge also alleged a violation of constitutional separation of powers. Dan Korobkin is an attorney with the American Civil Liberties Union of Michigan, which filed an amicus brief in the case. He says the Legislature determines taxes and fees and cannot offload that function to judges.
“Forcing judges to fund their own courts by essentially acting as tax assessors from the bench undermines the integrity of the judicial system,” said Korobkin. He said judges should not have a stake in how much money their courts can collect from defendants.
In written concurrences and dissents, there was a lot of back and forth among the justices about what should happen.
Justice Kyra Bolden agreed there is a problem, but it said doesn’t need to be settled by the Supreme Court — at least not yet. She was joined in that opinion by Chief Justice Elizabeth Clement and Justice Richard Bernstein
Justice Megan Cavanagh , joined by Justice Elizabeth Welch, disagreed with turning away the case and said she’d like to declare levying court costs to be unconstitutional right now, but would agree to giving the Legislature 18 months to fix it.
But that’s not too different from where things stand now — even after the court dismissed the challenge. The law allowing courts to levy costs expires in May of next year. The Legislature could lift that sunset or extend it. Or it could overhaul the law. And the justices strongly hinted they’d be open to hearing another case if the Legislature doesn’t act.
Message received, said State Senator Sue Shink (D-Northfield Township), who chairs the Senate Appropriations Subcommittee on Corrections and the Judiciary.
“It’s our job to do that and I think that’s a reasonable approach to this,” she said. “We have some time. There’s already been a lot of work being done and I think we could get this done.”
Lawmakers are not starting from scratch. The Supreme Court created a commission to look at court funding, and that commission issued a report in 2019. It’s up to the Legislature to use those findings to craft a solution. If that doesn’t work, the Supreme Court would very likely face the same question again in a future case.
