People v. Cunningham

Michigan Supreme Court
Lansing, Michigan

Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

PEOPLE v CUNNINGHAM

Docket No. 147437. Argued April 3, 2014 (Calendar No. 5). Decided June 18, 2014.

Frederick L. Cunningham pleaded guilty in the Allegan Circuit Court to obtaining a
controlled substance by fraud in violation of MCL 333.7407(1)(c) and was sentenced to 12 to 48
months’ imprisonment. In addition, defendant was ordered to pay $130 for the crime victim’s
rights assessment, $68 in minimum state costs, and $1,000 in unspecified court costs. Defendant
moved to reduce or vacate the amount of court costs imposed to reflect the amount of actual
costs incurred by the circuit court in connection with defendant’s case. The court, Margaret Z.
Bakker, J., denied the motion. The Court of Appeals, MARKEY, P.J., MURPHY, C.J., and
BOONSTRA, J., remanded the case to the circuit court in an unpublished order issued October 2,
2012 (Docket No. 309277), to determine the reasonable costs for felony cases in Allegan Circuit
Court in light of People v Sanders, 296 Mich App 710 (2012). On remand, the circuit court
ruled that a reasonable relationship existed between the court costs imposed and the actual court
costs on the basis of testimony that the average cost per criminal case in the circuit court was
$1,238.48. After remand, the Court of Appeals, FITZGERALD, P.J., and O’CONNELL, J. (SHAPIRO,
J., dissenting), relying on Sanders, affirmed the circuit court’s order. 301 Mich App 218 (2013).
The Supreme Court granted defendant’s application for leave to appeal. 495 Mich 897 (2013).

In a unanimous opinion by Justice MARKMAN, the Supreme Court held:

MCL 769.1k(1)(b)(ii) does not provide courts with the independent authority to impose
costs upon criminal defendants. Rather, it gives courts the authority to impose only those costs
that the Legislature has separately authorized by statute. Therefore, the circuit court erred when
it relied on MCL 769.1k(1)(b)(ii) as independent authority to impose $1,000 in court costs, and
the Court of Appeals erred as well by affirming the imposition of such costs. Sanders and other
Court of Appeals decisions were overruled to the extent they were inconsistent with this opinion.

1. A court may impose costs in a criminal case only if those costs are authorized by
statute. The statute under which defendant was convicted, MCL 333.7407, did not provide
courts with the authority to impose costs. While MCL 769.1k(1) gives courts the authority to
impose certain financial obligations on a defendant, including any cost in addition to the
minimum state cost, the fact that the Legislature proceeded beyond its reference to “any cost” to
specify with particularity that courts may require criminal defendants to pay certain other costs
suggested strongly that the Legislature did not intend MCL 769.1k(1)(b)(ii) to provide courts
with the independent authority to impose any cost. Further, interpreting MCL 769.1k(1)(b)(ii) as
providing courts with the independent authority to impose “any cost” would essentially render
nugatory, in violation of the Court’s duty to harmonize and reconcile related statutes, the cost
provisions within other statutes in effect when MCL 769.1k was enacted that provided courts
with the authority to impose specific costs for certain offenses. The Legislature’s decision to
continue to enact provisions providing courts with authority to impose specific costs for certain
offenses also suggested strongly that it did not intend MCL 769.1k(1)(b)(ii) to provide courts
with the independent authority to impose “any cost.” Also, a logical outgrowth of holding that
MCL 769.1k(1)(b)(ii) provided courts with the independent authority to impose any cost would
have been that MCL 769.1k(1)(b)(i) would have provided courts with the independent authority
to impose “any fine,” which would have nullified the provisions within those statutes that
expressly fix the amount of fines that courts may impose for certain offenses. For these reasons,
MCL 769.1k(1)(b)(ii) did not provide courts with the independent authority to impose any cost;
rather, it provided courts with the authority to impose only those costs that the Legislature
separately authorized by statute.

2. Because the Legislature did not intend MCL 769.1k(1)(b)(ii) to provide courts with
the independent authority to impose any cost, Sanders was overruled to the extent that it was
inconsistent with this opinion.

Court of Appeals judgment reversed; circuit court order vacated in part; case remanded
for further proceedings.

©2014 State of Michigan
 Michigan Supreme Court
Lansing, Michigan

Opinion
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano

FILED June 18, 2014

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 147437

FREDERICK L. CUNNINGHAM,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

MARKMAN, J.

At issue is whether MCL 769.1k(1)(b)(ii) provides courts with the independent

authority to impose costs upon criminal defendants. We hold that it does not. Instead,

we hold that MCL 769.1k(1)(b)(ii) provides courts with the authority to impose only

those costs that the Legislature has separately authorized by statute. Therefore, the

circuit court erred when it relied on MCL 769.1k(1)(b)(ii) as independent authority to

impose $1,000 in “court costs,” and the Court of Appeals erred as well by affirming the

imposition of such costs. Accordingly, we reverse the decision of the Court of Appeals,
vacate the portion of the circuit court’s order imposing $1,000 in court costs, and remand

for further proceedings not inconsistent with this opinion.

I. FACTS AND HISTORY

In March of 2011, defendant acquired the prescription drug Norco by presenting a

forged prescription to a pharmacy. Defendant pleaded guilty in the Allegan County

Circuit Court to obtaining a controlled substance by fraud in violation of MCL

333.7407(1)(c) and was sentenced to 12 to 48 months’ imprisonment. In addition,

defendant was ordered to pay $130 for the crime victim’s rights assessment, $68 in

minimum state costs, and $1,000 in unspecified “court costs.”1 Defendant filed a motion

to correct what he viewed as an invalid sentence, arguing that the circuit court should

reduce or vacate the amount of court costs imposed to reflect the amount of actual costs

incurred by the circuit court in connection with defendant’s case. The circuit court

denied this motion and held that the court costs were permissible under the “general

taxing authority of MCL 769.1k and MCL 769.34(6).”

In light of People v Sanders, 296 Mich App 710; 825 NW2d 87 (2012), the Court

of Appeals then remanded to the circuit court to “factually establish the reasonable costs

figure for felony cases in Allegan County Circuit Court.” People v Cunningham,

unpublished order of the Court of Appeals, issued October 2, 2012 (Docket No.

1
As more fully explained in this opinion, in imposing $1000 in what it deemed to be
“court costs,” the circuit court relied on MCL 769.1k(1)(b)(ii), which speaks generally of
“any cost in addition to the minimum state cost.” Thus, while the circuit court labeled the
$1000 in costs that it imposed as “court costs,” this case more broadly concerns the
meaning of the phrase “any cost” as it appears in MCL 769.1k(1)(b)(ii).

2
309277).2 At the ensuing hearing, the Circuit Court Administrator testified that the

average cost per criminal case in the circuit court was $1,238.48.3 Accordingly, the

circuit court found that a reasonable relationship existed between the court costs imposed

and the actual court costs incurred in connection with defendant’s conviction. Relying on

Sanders, the Court of Appeals affirmed the circuit court’s order. People v Cunningham

(After Remand), 301 Mich App 218; 836 NW2d 232 (2013). One judge dissented on the

grounds that courts may not include the general costs of maintaining the judicial branch

of government in calculating such court costs. Id. at 222-225 (SHAPIRO, J., dissenting).

On November 20, 2013, this Court granted defendant’s application for leave to appeal.

People v Cunningham, 495 Mich 897 (2013).

II. STANDARD OF REVIEW

Questions of statutory interpretation are questions of law that are reviewed de

novo. Martin v Beldean, 469 Mich 541, 546; 677 NW2d 312 (2004).

2
In Sanders, the Court of Appeals held that “a trial court may impose a generally
reasonable amount of court costs under MCL 769.1k(1)(b)(ii) without the necessity of
separately calculating the costs involved in the particular case . . . .” Sanders, 296 Mich
App at 715 (emphasis added). However, finding that there must be a reasonable
relationship between the costs imposed and the actual costs incurred, the Court of
Appeals remanded to the circuit court “to factually establish the reasonable costs figure
for felony cases in the Berrien Circuit Court.” Id. at 716. In People v Sanders (After
Remand), 298 Mich App 105, 108; 825 NW2d 376 (2012), the Court of Appeals found
that the trial court had established “a sufficient factual basis to conclude that $1000 in
court costs under MCL 769.1k(1)(b)(ii) is a reasonable amount in a felony case
conducted in the Berrien Circuit Court.”
3
Of this figure, $462.84 was attributed to the circuit court’s operating expenses, $563.15
was attributed to attorney costs, and $212.48 was attributed to clerk and deputy costs.

3
 III. ANALYSIS

“The right of the court to impose costs in a criminal case is statutory.” People v

Wallace, 245 Mich 310, 313; 222 NW 698 (1929). Thus, courts may impose costs in

criminal cases only where such costs are authorized by statute. Id.4 In a variety of

circumstances, the Legislature has chosen to provide courts with the authority to impose

costs. For instance, with regard to certain offenses, courts may require criminal

defendants to pay the “costs of prosecution.”5 With regard to other offenses, courts may

require criminal defendants to “reimburse the state or a local unit of government for

expenses incurred in relation to that incident including but not limited to expenses for an

4
The authority of sentencing courts is “confined to the limits permitted by the statute
under which it acts.” People v Tims, 127 Mich App 564, 565-566; 339 NW2d 488
(1983), citing In re Callahan, 348 Mich 77, 80; 81 NW2d 669 (1957). In this regard, in
sentencing defendants, “the court performs a ministerial function with discretion confined
to the limits permitted by . . . statute.” Callahan, 348 Mich at 80, citing In re Duff, 141
Mich 623; 105 NW 138 (1905); In re Evans, 173 Mich 25; 138 NW 276 (1912).
5
See, e.g., MCL 750.49(5) (providing that courts may require individuals convicted of
offenses related to fighting, baiting, or shooting an animal to pay “the costs of
prosecution”); MCL 750.50(4)(b) (providing that courts may require individuals
convicted of offenses related to animal cruelty to pay “the costs of prosecution”); MCL
750.159j(2) (providing that courts may require individuals convicted of offenses related
to racketeering activity to pay “court costs” or “the costs of the investigation and
prosecution that are reasonably incurred”); MCL 752.845 (providing that individuals
convicted of injuring or killing another person by firearm “shall, upon conviction thereof,
be fined not more than $100.00 and costs of prosecution”); MCL 324.80178(2)
(providing that courts may require individuals convicted of operating a vessel on the
waters of this state while under the influence of intoxicating liquor or a controlled
substance, MCL 324.80176(3), “to pay the costs of the prosecution” “pursuant to the
code of criminal procedure, 1927 PA 175, MCL 760.1 to MCL 777.69”).

4
emergency response and expenses for prosecuting the person.”6 MCL 769.1f(1).

Regardless of the offense committed, when a criminal defendant is placed on probation,

courts may require the probationer to pay “expenses specifically incurred in prosecuting

the defendant or providing legal assistance to the defendant and supervision of the

probationer.” MCL 771.3(5). Additionally, when a criminal defendant receives a

conditional sentence, courts may “order the person to pay a fine, with or without the costs

of prosecution.” MCL 769.3(1).

In 1994, when the Legislature laid the foundation for the criminal sentencing

guidelines, it amended the Code of Criminal Procedure to add MCL 769.34, which

provides in pertinent part that when a criminal defendant is sentenced for an offense

subject to the guidelines, “[a]s part of the sentence, the court may order the defendant to

pay any combination of a fine, costs, or applicable assessments,” and “[t]he court shall

6
See MCL 769.1f(1)(a) through (i) (listing the specific offenses). As detailed in the
statute, the offenses for which reimbursement may be ordered include various offenses
related to operating some type of motor vehicle while under the influence of intoxicating
liquor or a controlled substance, committing a moving violation causing death, false
reporting of a crime or threat, and violating a personal protection order. Several statutes
also provide that courts may require individuals “to reimburse this state or a local unit of
government of this state for expenses incurred in relation to the violation in the same
manner that expenses may be ordered to be reimbursed under section 1f of chapter IX of
the code of criminal procedure, 1927 PA 175, MCL 769.1f.” See MCL 750.145d (using
the Internet or a computer in a prohibited manner); MCL 750.411s (posting a message
through an electronic medium without consent); MCL 750.462j (providing or obtaining
the labor or services of another by force, fraud, or coercion); MCL 750.543x (violating
the Michigan Anti-Terrorism Act); MCL 752.797 (accessing a computer with an intent to
defraud); MCL 752.1084 (organized retail crime).

5
order payment of restitution as provided by law.” MCL 769.34(6), as added by 1994 PA

445.

In 2005, the Legislature further amended the Code of Criminal Procedure to add

the statute immediately at issue, MCL 769.1k, which provides:

(1) If a defendant enters a plea of guilty or nolo contendere or if the
court determines after a hearing or trial that the defendant is guilty, both of
the following apply at the time of the sentencing or at the time entry of
judgment of guilt is deferred pursuant to statute or sentencing is delayed
pursuant to statute:

(a) The court shall impose the minimum state costs as set forth in
section 1j of this chapter.

(b) The court may impose any or all of the following:

(i) Any fine.

(ii) Any cost in addition to the minimum state cost set forth in
subdivision (a).

(iii) The expenses of providing legal assistance to the defendant.

(iv) Any assessment authorized by law.

(v) Reimbursement under section 1f of this chapter.

(2) In addition to any fine, cost, or assessment imposed under
subsection (1), the court may order the defendant to pay any additional
costs incurred in compelling the defendant’s appearance.

(3) Subsections (1) and (2) apply even if the defendant is placed on
probation, probation is revoked, or the defendant is discharged from
probation.

(4) The court may require the defendant to pay any fine, cost, or
assessment ordered to be paid under this section by wage assignment.

(5) The court may provide for the amounts imposed under this
section to be collected at any time.

6
 (6) Except as otherwise provided by law, the court may apply
payments received on behalf of a defendant that exceed the total of any
fine, cost, fee, or other assessment imposed in the case to any fine, cost, fee,
or assessment that the same defendant owes in any other case. [2005 PA
316, as amended by 2006 PA 655 (emphasis added.)]

Thus, under MCL 769.1k(1), when a criminal defendant pleads guilty or nolo contendere,

or is otherwise found guilty, courts may impose certain financial obligations at the time

of sentencing, or earlier if sentencing is delayed or entry of judgment of guilt is deferred.

Courts may impose these obligations even if the defendant is placed on probation,

probation is revoked, or the defendant is discharged from probation. MCL 769.1k(3).

Moreover, the amounts imposed under MCL 769.1k may be collected at any time. MCL

769.1k(5).

In this case, the statute under which defendant was convicted, MCL 333.7407,

does not provide courts with the authority to impose costs.7 Nonetheless, the prosecutor

7
MCL 333.7407 provides, in relevant part:

(1) A person shall not knowingly or intentionally:

* * *
(c) Acquire or obtain possession of a controlled substance by
misrepresentation, fraud, forgery, deception, or subterfuge.

* * *

(2) A person shall not refuse or knowingly fail to make, keep, or
furnish any record, notification, order form, statement, invoice, or other
information required under this article.

(3) A person who violates this section is guilty of a felony,
punishable by imprisonment for not more than 4 years, or a fine of not
more than $30,000.00, or both.

7
argues that the $1,000 in court costs imposed by the circuit court were proper under MCL

769.1k(1)(b)(ii). In the prosecutor’s view, MCL 769.1k(1)(b)(ii) provides courts with the

independent authority to impose “any cost,” to wit, any kind of cost that a court might

incur. In defendant’s view, however, MCL 769.1k(1)(b)(ii) does not provide courts with

the independent authority to impose “any cost,” but merely allows courts to impose those

costs that the Legislature has separately authorized by statute. Thus, the pertinent issue in

this case concerns the extent to which MCL 769.1k(1)(b)(ii) authorizes courts to impose

costs.

In giving meaning to MCL 769.1k(1)(b)(ii), we examine the provision within the

overall context of the statute “so as to produce, if possible, a harmonious and consistent

enactment as a whole.” Grand Rapids v Crocker, 219 Mich 178, 182-183; 189 NW 221

(1922). This Court “must give effect to every word, phrase, and clause and avoid an

interpretation that would render any part of the statute surplusage or nugatory.” State

Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002).

We also consider the statute’s “ ‘placement and purpose in the statutory scheme,’ ” Sun

Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999) (citation omitted),

and in interpreting related statutes, those in pari materia, we construe the statutes

together “so as to give the fullest effect to each provision,” Glover v Parole Bd, 460

Thus, while MCL 333.7407 contemplates a sentence that may include imprisonment
and/or a fine, it does not anywhere provide courts with the authority to impose costs.

8
Mich 511, 527; 596 NW2d 598 (1999), citing Parks v DAIIE, 426 Mich 191, 199; 393

NW2d 833 (1986).

Although MCL 769.1k(1)(b)(ii) allows courts to impose “any cost in addition to

the minimum state cost,” this provision cannot be read in isolation, but instead must be

read reasonably and in context. Sun Valley Foods Co v Ward, 460 Mich 230, 236-237;

596 NW2d 119 (1999). When read “reasonably and in context,” it is evident to us that

MCL 769.1k(1)(b)(ii) does not provide courts with the independent authority to impose

“any cost.” Rather, MCL 769.1k(1)(b)(ii) provides courts with the authority to impose

only those costs that the Legislature has separately authorized by statute.

First, while MCL 769.1k allows courts to impose “any cost in addition to the

minimum state cost,” it also authorizes courts to impose other costs, including “the

expense of providing legal assistance to the defendant,” MCL 769.1k(1)(b)(iii), and “any

additional costs incurred in compelling the defendant’s appearance,” MCL 769.1k(2). If,

as the prosecutor argues, MCL 769.1k(1)(b)(ii) provides courts with the independent

authority to impose “any cost,” there would, of course, have been no need for the

Legislature to have particularly specified that courts may require individuals to pay for

the latter costs. In other words, if MCL 769.1k(1)(b)(ii) provides courts with the

independent authority to impose “any cost,” the Legislature could simply have left it at

that and conferred upon trial courts, as they saw fit to exercise it, broad discretion to

require criminal defendants to pay costs. However, the fact that the Legislature

proceeded beyond its reference to “any cost” to specify with particularity that courts may

require criminal defendants to pay certain other costs suggests strongly that the

9
Legislature did not intend MCL 769.1k(1)(b)(ii) to provide courts with the independent

authority to impose “any cost.”

Moreover, in addition to allowing courts to impose “any cost in addition to the

minimum state cost,” MCL 769.1k also allows courts to order “reimbursement under

[MCL 769.1f].” MCL 769.1k(1)(b)(v). Under MCL 769.1f, courts may require

defendants convicted of certain offenses “to reimburse the state or a local unit of

government for specific expenses incurred in relation to the incident including but not

limited to expenses for an emergency response and expenses for prosecuting the person.”

MCL 769.1f(1) and (9). As detailed in MCL 769.1f, the expenses for which

reimbursement may be ordered include “the salaries, wages, or other compensation,

including, but not limited to, overtime pay of prosecution personnel for time spent

investigating and prosecuting the crime or crimes resulting in conviction.” MCL

769.1f(2)(d). If MCL 769.1k(1)(b)(ii) provided courts with the independent authority to

impose “any cost,” there would have been no need for the Legislature to specify in MCL

769.1k(1)(b)(v) that a court may order “reimbursement under MCL 769.1f,” and thereby

impose particular costs. That the Legislature included a specific provision authorizing

reimbursement under MCL 769.1f further suggests that it did not intend MCL

769.1k(1)(b)(ii) to provide courts with the independent authority to impose “any cost.”

Second, at the time the Legislature enacted MCL 769.1k, numerous statutes

provided courts with the authority to impose specific costs for certain offenses. See, e.g.,

footnote 5 of this opinion. Interpreting MCL 769.1k(1)(b)(ii) as providing courts with

the independent authority to impose “any cost” would essentially render the cost

10
provisions within those statutes nugatory, as courts could nonetheless impose “any cost,”

regardless of whether the Legislature had particularly provided courts with the authority

to impose specific costs for the relevant offense. In determining the proper meaning of

MCL 769.1k(1)(b)(ii), it is our duty to harmonize and reconcile related statutes,8 and we

decline to adopt an interpretation of MCL 769.1k(1)(b)(ii) that would leave the cost

provisions of other statutes without any practical or effective meaning. See Koenig v

South Haven, 460 Mich 667, 677, 597 NW2d 99 (1999) (“[A] court’s duty is to give

meaning to all sections of a statute and to avoid, if at all possible, nullifying one by an

overly broad interpretation of another.”).

Moreover, after the Legislature enacted MCL 769.1k, it has continued to enact

provisions providing courts with the authority to impose particular costs for certain

offenses.9 Because we presume that the Legislature acts “with a full knowledge of

existing statutes,” In re Reynolds’ Estate, 274 Mich 354, 362; 264 NW 399 (1936), we

presume that the Legislature enacted these provisions with full knowledge of MCL

8
The purpose of the Code of Criminal Procedure is to “codify the laws relating to
criminal procedure,” Title, MCL 760.1 et seq., and we find it proper to read MCL 769.1k
together with the substantive statutes that the Legislature has enacted that define crimes
and prescribe fines and costs. See People v Smith, 423 Mich 427, 442; 378 NW2d 384
(1985) (holding that the Penal Code and the Code of Criminal Procedure “relate generally
to the same thing and must therefore be read in pari materia . . . .”).
9
For example, in 2008 and 2012, the Legislature expanded the offenses for which
reimbursement may be ordered pursuant to MCL 769.1f. See 2008 PA 466; 2012 PA
331. In addition, in 2013, the Legislature authorized courts to order an individual
convicted of soliciting a personal injury victim, MCL 750.410b, “to pay the costs of
prosecution as provided in the code of criminal procedure, 1927 PA 175, MCL 760.1 to
MCL 777.69.” See 2013 PA 219.

11
769.1k. The Legislature’s decision to continue to enact provisions providing courts with

authority to impose specific costs for certain offenses again suggests strongly that it did

not intend MCL 769.1k(1)(b)(ii) to provide courts with the independent authority to

impose “any cost.” We again operate on the presumption that the Legislature did not

intend to do a useless thing. Klopfenstein v Rohlfing, 356 Mich 197, 202; 96 NW2d 782

(1959) (“[I]t will not be presumed that the legislature intended to do a useless

thing . . . .”).

Third, if this Court were to hold that MCL 769.1k(1)(b)(ii) provides courts with

the independent authority to impose “any cost,” a logical outgrowth of that holding would

be that MCL 769.1k(1)(b)(i) provides courts with the independent authority to impose

“any fine.” However, at the time the Legislature enacted MCL 769.1k, numerous statutes

provided that certain offenses are punishable by a fine up to a specific amount, with such

amounts widely differing. Interpreting MCL 769.1k(1)(b)(i) as providing courts with the

independent authority to impose “any fine” would also nullify the provisions within those

statutes that expressly fix the amount of fines that courts may impose for certain offenses,

as courts could impose “any fine,” presumably in any amount, and presumably without

reference to the limitations that the Legislature has set forth in other statutes. Once again,

we do not believe that by enacting MCL 769.1k(1)(b)(i) the Legislature intended to leave

the fine provisions of numerous statutes without practical meaning or effect. Koenig, 460

12
Mich at 677.10 Thus, our belief that MCL 769.1k(1)(b)(i) does not provide courts with

the independent authority to impose “any fine” suggests further that MCL

769.1k(1)(b)(ii) does not provide courts with the independent authority to impose “any

cost.”

In light of the foregoing analysis, we conclude that MCL 769.1k (1)(b)(ii) does not

provide courts with the independent authority to impose “any cost.” Instead, we hold that

MCL 769.1k(1)(b)(ii) provides courts with the authority to impose only those costs that

the Legislature has separately authorized by statute.11 In other words, we find that MCL

769.1k(1)(b)(ii) seeks comprehensively to incorporate by reference the full realm of

statutory costs available to Michigan courts in sentencing defendants, so that the

Legislature need not compendiously list each such cost in MCL 769.1k.12 Our

10
In addition, as acknowledged by both parties, interpreting MCL 769.1k(1)(b)(i) as
providing courts with the independent authority to impose “any fine” would also raise
constitutional concerns, as “the ultimate authority to provide for penalties for criminal
offenses is constitutionally vested in the Legislature.” People v Hegwood, 465 Mich 432,
436; 636 NW2d 127 (2001). As this Court has previously recognized, “ ‘the rule is
settled that as between two possible interpretations of a statute, by one of which it would
be unconstitutional and by the other valid, our plain duty is to adopt that which will save
the Act.’ ” Loose v Battle Creek, 309 Mich 1, 13; 14 NW2d 554 (1944) (quoting
Bowerman v Sheehan, 242 Mich 95; 219 NW 69 (1928).
11
In the same vein, upon examining the existing statutory scheme, we also conclude that
MCL 769.34(6), which provides that “as part of the sentence, the court may also order the
defendant to pay any combination of a fine, costs, or applicable assessments,” does not
provide courts with the independent authority to impose any fine or cost. Rather, as with
MCL 769.1k, MCL 769.34(6) allows courts to impose only those costs or fines that the
Legislature has separately authorized by statute.
12
Given the Legislature’s use of the phrase “any cost,” we believe that the Legislature
intended MCL 769.1k(1)(b)(ii) to incorporate by reference not only existing statutory

13
understanding of MCL 769.1k(1)(b)(ii), we believe, accords respect to its language, to the

language of other cost provisions within MCL 769.1k, and to the language of other

statutes enacted by the Legislature conferring upon courts the authority to impose specific

costs for certain offenses.

In affirming the circuit court’s order imposing $1,000 in court costs, the Court of

Appeals relied on People v Sanders, 296 Mich App 710; 825 NW2d 87 (2012), and

People v Sanders (After Remand), 298 Mich App 105; 825 NW2d 376 (2012). However,

in Sanders, the Court of Appeals assumed that MCL 769.1k(1)(b)(ii) “authorizes the

imposition of costs without any explicit limitation . . . .” 296 Mich App at 712. As set

forth in this opinion, we do not believe that the Legislature intended MCL

769.1k(1)(b)(ii) to provide courts with the independent authority to impose “any cost.”

Accordingly, we overrule Sanders to the extent that it is inconsistent with this opinion.13

IV. CONCLUSION

The circuit court erred when it relied on MCL 769.1k(1)(b)(ii) as independent

authority to impose $1,000 in court costs,14 and the Court of Appeals erred as well by

provisions that provide courts with the authority to impose specific costs, but also future
provisions that the Legislature might enact providing courts with the same authority,
unless the Legislature states to the contrary.
13
Moreover, to the extent that other decisions of the Court of Appeals are consistent with
Sanders, and inconsistent with this opinion, we overrule those decisions as well.
14
Our holding today defines the extent to which MCL 769.1k(1)(b)(ii) authorizes courts
to impose costs. It does not define the scope of any particular statutory provision that is
incorporated by reference into MCL 769.1k(1)(b)(ii).

14
affirming the circuit court’s imposition of such costs.15 Accordingly, we reverse the

decision of the Court of Appeals, vacate the portion of the circuit court’s order imposing

$1,000 in court costs, and remand for further proceedings not inconsistent with this

opinion.

Stephen J. Markman
Robert P. Young, Jr.
Michael F. Cavanagh
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano

15
In granting defendant’s application for leave to appeal, we directed the parties to
address:

(1) whether People v Sanders, 296 Mich App 710; 825 NW2d 87 (2012),
and People v Sanders (After Remand), 298 Mich App 105; 825 NW2d 376
(2012), correctly held that the Legislature’s intent in authorizing an
assessment of “[a]ny cost” under MCL 769.1k(1)(b)(ii) was to adopt a
“reasonable flat fee” approach that does not require precision, and does not
require separately calculating the costs involved in a particular case; (2)
whether assessments of “court costs” are similar to, or interchangeable
with, “costs of prosecution”; (3) whether the general principles set out in
People v Wallace, 245 Mich 310; 222 NW 698 (1929), People v Teasdale,
335 Mich 1; 55 NW2d 149 (1952), and People v Dilworth, 291 Mich App
399; 804 NW2d 788 (2011), which dealt with statutory costs of prosecution
and probation costs, have any applicability to an assessment pursuant to
MCL 769.1k(1)(b)(ii); and (4) whether the Court of Appeals in this case
properly applied Sanders to affirm the assessment of $1,000 in court costs
on the basis that it was reasonably related to the $1,238.48 average actual
cost per criminal case in Allegan Circuit Court, which included overhead
costs and indirect expenses. [People v Cunningham, 495 Mich 897 (2013).]

However, in light of our conclusion that MCL 769.1k(1)(b)(ii) does not provide courts
with the independent authority to impose “any cost,” we need not address the second and
third issues listed in the grant order.

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