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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION April 4, 2017
9:00 a.m.

v No. 330876
Washtenaw Circuit Court SHAWN LOVETO CAMERON, JR., LC No. 13-001315-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and O’C ONNELL and B ORRELLO , JJ.

P ER C URIAM

.
In this criminal proceeding, de fendant Shawn Cameron, Jr., com es before this Court in an appeal of right for a second time. At issue in the instant app eal is whether the imposition of court costs under MCL 769.1k(1)(b)( iii ) constitutes an unconstitutional tax. Defendant is not the first person to challenge the constitutionality of MCL 769.1k(1 )(b)( iii ) on this basis; however, there are no published opinions on the issue. We conclude that although it imposes a tax, MCL 769.1k(1)(b)( iii ) is not unconstitutional, and we affirm the trial court’s asse ssment of court costs.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

A jury convicted defendant of as sault with intent to do great bodily harm less than murder, MCL 750.84, based on his role in an attack on a woman o ver a dispute regarding the payment of babysitting fees. T he trial court sentenced him as a fourth habitual offender, MCL 769.12, to serve 13 months to 20 years’ imprisonment. The cour t also ordered defendant to pay certain costs and fees, inc luding $1,611 in court costs.

Defendant appealed by right, arguing that the trial court lack ed the statutory authority to impose court costs, and that the L egislature’s retroactive gran t of such authority was unconstitutional. Relying on bind ing precedent, a panel of thi s Court disagreed. People v
Cameron , unpublished opinion per curiam of the Court of Appeals, issue d July 28, 2015 (Docket No. 321387). However, the panel remanded the case to the trial court for a determination of whether the court costs imposed were “reasonably related to actual costs incurred by the trial court,” as required by MCL 769.1k(1)(b)( iii ).

On remand, the trial court expl ained the basis for the imposit ion of $1,611 in court costs:-2- The Washtenaw County Trial Court previously established a fact ual basis for the court costs it has imposed on each felony case at the t ime of sentencing. The costs were computed based on the ten year average annual to tal court budget of $16,949,292 multiplied by the average annual percentage of a ll filings which are felonies, i.e., 22%, which revealed the average annual budg et for the Washtenaw Trial Court’s handling of all of its criminal felony cases. This amount was then divided by the average annual number of felony filings over [the] last 6 years (2,217) which resulted in the average court costs of hand ling each felony case as $1,681. The state costs were subtracted ($68) as well as an additional $2, resulting in the sum of $1,611 be ing assessed per felony case.

On this basis, the court conclude d that the amount of court cos ts imposed on defendant was reasonably related to the actual costs incurred by the trial co urt.

II. ANALYSIS

Defendant argues that the court cost assessment provision set forth in MCL 769.1k constitutes a tax, as opposed to a fee, because it raises reven ue and criminal defendants do not pay court costs voluntarily. Def endant maintains that the cost s cannot be considered a proportionate fee for services because criminal defendants are not being provided a service when they are subjected to prosecution in a court of law. As a tax, defendant contends that MCL 769.1k(1)(b)( iii ) is unconstitutional because it violates Const 1963, art 4, § 32, which provides that “[e]very law [that] imposes, continues or revives a tax sh all distinctly state the tax.” Moreover, defendant claims that there is no limit on the amount of costs that might be imposed under the statute. Defendant also argues that MCL 769.1k viola tes the separation of powers provision of Const 1963, art 3 § 2.

A. STANDARDS OF REVIEW

“ Whether a charge is a permissible fee or an illegal tax is a qu estion of law.” Dawson v Secretary of State , 274 Mich App 723, 740; 739 NW2d 339 (2007) (quotation marks a nd citation omitted). This Court reviews constitutional questions de novo. 1 People v Conat , 238 Mich App 134, 144; 605 NW2d 49 (1999). “Statutes are presumed to be con stitutional and must be
construed as such unless it is c learly apparent that the statut e is unconstitutional.” In re RFF

, 242 Mich App 188, 205; 617 NW2d 745 (2000). “[T]he burden of p roving that a statute is unconstitutional rests with the party challenging it.” In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71 , 479 Mich 1, 11; 740 NW2d 444 (2007).

1 Defendant concedes that he did not challenge the imposition of court costs under MCL 769.1k as an unconstitutional tax before the trial court, and thus, th e issue is unpreserve d. However, this Court may overlook preservation requirements if “an important c onstitutional question is
involved . . . .” People v Gezelman , 202 Mich App 172, 174; 507 NW2d 744 (1993).-3- B. APPLICABLE LAW

The assessment of court costs ag ainst a convicted defendant is governed by MCL 769.1k(1)(b)( iii ), which provides:

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

* * * ( iii ) Until 36 months after the date the amendatory act that added subsection (7) is enacted into law, any cost reasonably related to the actual cos ts incurred by the trial court without separately ca lculating those costs involved in the particular case, including, but not limited to, the following:

(A) Salaries and benefits for r elevant court personnel. (B) Goods and services necessary for the operation of the court

. (C) Necessary expenses for the operation and maintenance of cou rt buildings and
facilities.

As defendant points out in his br ief, separate panels of this Court have come to different conclusions in unpublished opinions with respect to whether cou rt costs imposed under MCL 769.1k(1)(b)( iii ) constitute a fee or a tax. U pon review of the issue, we agre e with the analysis
and conclusions set forth in People v Bailey , unpublished opinion per curiam of the Court of Appeals, issued December 15, 2015 (Docket No. 323190). 2

C. TAX OR FEE

As this Court in Bailey pointed out, “[t]he first step in examining the constitutional muster of MCL 769.1k(1)(b)( iii ) is to determine whether it assesses a ‘governmental “fee” ’ o r a tax.” Bailey , unpub op at 3, quoting Dawson , 274 Mich App at 740. 3

A tax is an “exaction[] or invol untary contribution[] of money the collection of which is sanctioned by law and enforceable by the courts.” Dukesherer Farms, Inc v Ball , 405 Mich 1, 15; 273 NW2d 877 (1979) (quotation marks and citation omitted). “Taxes have a primary purpose of raising revenue, while fees are usually in exchange for a service rendered or a benefit
conferred.” Westlake Transp, Inc v Pub Serv Comm , 255 Mich App 589, 612; 662 NW2d 784 (2003), aff’d sub nom American Trucking Ass’n, Inc v Mich Pub Serv Comm , 545 US 429; 125 S Ct 2419; 162 L Ed 2d 407 and Mid-Con Freight Sys, Inc v Mich Pub Serv Comm , 545 US 440; 125 S Ct 2427, 2431; 162 L Ed 2d 418 (2005). “Taxes are design ed to raise revenue for the

2 Unpublished opinions are not binding but they may be consulted as persuasive authority. MCR 7.215(C)(1); Paris Meadows, LLC v Kentwood , 287 Mich App 136, 139 n 3; 783 NW2d 133 (2010).

3 The parties to the case at bar agree that “fee” and “tax” are the categories at issue for
characterization of the court c osts that may be imposed pursuan t to MCL 769.1k(1)(b)( iii ).-4- general public, while a fee confers benefits only upon the part icular people who pay the fee, not the general public or even a portion of the public who do not p ay the fee.” Westlake Transp , 255 Mich App at 613 (quotation marks and citation omitted).

When determining whether a charge constitutes a fee or a tax, a court must consider three questions: “(1) whether the ch arge serves a regulatory purpose rather than operates as a means of raising revenue; (2) whether the charge is proportionate to the necessary costs of the service to which it is related; and (3) whether the payor has the ability to refuse or limit its use of the service to which the charge is related.” Westlake Transp , 255 Mich App at 612. We will consider each of these questions in turn.

1. REGULATORY OR REVENUE-RAISING

This factor looks at the purpose of the charge. We agree with defendant that the purpose of MCL 769.1k(1)(b)( iii ) is to raise revenue. The plain language of the statute does not reveal a regulatory concern with the publ ic health, safety, and welfare because court costs “are not a form of punishment.” People v Konopka (On Remand) , 309 Mich App 345, 370; 869 NW2d 651 (2015). Rather, MCL 769.1k(1)(b)( iii ) expressly allows the trial court to impose costs for the “actual costs incurred by the trial court,” including the compe nsation of court personnel and the recovery of necessary operational expenses. MCL 769.1k(1)(b)( iii )(A)-(C). Thus, MCL 769.1k(1)(b)( iii ) focuses on the trial court’s revenue, i.e. “the income of a g overnment from taxation and other sources, appr opriated for public expense.” Random House Webster’s College Dictionary (1997).

Recent caselaw supports that MCL 769.1k(1)(b)( iii ) functions to raise revenue for the
courts. In Konopka , this Court assumed without e laboration that MCL 769.1k serves a revenuegenerating purpose, and rejected the argument that the amended version of MCL 769.1k violated the due process and equal protection clauses of the United Stat es and Michigan Constitutions in part on the ground that “[t]he st atute is rationally related to the legitimate purpose of compensating courts for the expe nses incurred in trying crimina l cases because it provides for the
collection of costs from criminal defendants.” Id . at 368-369, citing MCL 769.1k(1)(b)( iii ). The Court further reasoned that,

[b]ecause “the state, including its local subdivisions, is resp onsible for costs associated with arresting, proces sing, and adjudicating individ uals” who commit criminal offenses, the classification scheme imposing costs on criminal defendants but not civil litigant s is “rationally related to th e legitimate governmental purpose of generating revenue from individuals who impose costs on the government and society.” [ Konopka , 309 Mich App at 369, quoting

Dawson , 274 Mich App at 738.]

Therefore, in light of the plain language of the statute and th is Court’s interpretation of the
statute in Konopka , we conclude that MCL 769.1k(1)(b)( iii ) is a revenue-generating statute.

2. PROPORTIONATE TO THE COSTS OF THE SERVICE

This factor looks at whether the court imposes costs that are proportionate to the services it renders a particular defendant. Defendant argues that the c osts imposed are not proportionate-5- to the costs the court incurred because MCL 769.1k(1)(b)( iii ) allows the court to impose costs on a party without separately calcul ating the actual costs incurre d by that party. We disagree. Defendant’s argument is unavailing because he misconstrues prop ortionality as exactitude, and
because the court costs at issue had a factual basis and relate to the actual costs the trial court incurs in felony criminal proceedings.

The test for proportionality is not whether a fee or tax is pr ecisely equal to the actual
costs incurred. See Westlake Transp , 255 Mich App at 615. In Westlake Transp , this Court considered whether Michigan’s $100 application fee and $100 annual renewal fee for intrastate truckers amounted to a governmental fee or a tax. Id . at 593. The plaintiffs argued that the fees were not proportional because they exceeded the expense of the related services. Id . at 614. This Court noted that “[a] fee must be proportionate to the cost of the regulation, but i ts amount is presumed reasonable unless its unreasonableness is establish ed. Where revenue generated by a regulatory ‘fee’ exceeds the cost of regulation, the ‘fee’ is actually a tax in disguise.” Id

. (quotation marks and citation omitted). The Court considered a senate fiscal report provided by the plaintiffs showing that the a gency collecting the fees had a “surplus” in “nearly every year” that the report examined. Id . at 614-615. Nevertheless, the Court concluded that the “aggr egate excess” during the years covered by the report “was only 11.7 p ercent, a relatively small percentage[,]” and affirmed the Court of Claims’ finding that t he fees were not “wholly disproportionate.” Id . at 615.

That the court imposes costs that may be more or less than the precise costs incurred in a particular criminal defendant’s prosecution does not mean that the costs are disproportionate, or that ways of ensuring proportionality are lacking. MCL 769.1k( 1)(b)( iii ) requires a relationship between costs imposed and the se rvices thus supported by author izing only costs “reasonably
related to the actual costs in curred by the trial court . . . . ” Additionally, this Court held in Konopka that a trial court must “establish a factual basis” for the co sts imposed pursuant MCL 769.1k(1)(b)( iii ). Konopka , 309 Mich App at 359. As an aid to determining court costs, the
State Court Administrative Office has recommended that circuit courts calculate costs for purposes of MCL 769.1k(1)(b)( iii ) “by taking the average of actual costs times the percent of [the] workload for [the] criminal [division] divided by the ave rage number of criminal cases disposed.” 4 The trial court in the case at bar imposed costs calculated u sing a substantially
similar formula to determine its average cost per felony case. Thus, the court costs at issue have a factual basis, id , and are grounded in the average of actual costs incurred by t he trial court in felony prosecutions, MCL 769.1k(1)(b)( iii ). Although the court costs imposed on an individual convict may vary from the actual expense incurred in the convic t’s prosecution, such variance should not, given the trial cour t’s method of calculation in th e instant case, result in an

4 After enactment of 2014 PA 352, the SCAO provided the circuit courts a memorandum setting forth options for calculating court costs. See SCAO, November 6, 2014 Memorandum, http://courts.mi.gov/Ad ministration/SCAO/OfficesPrograms/Docume nts/collections/MCL769.1k -ImpositionCriminalFinesCostsA ssessments.pdf (accessed March 9, 2017).-6- “aggregate excess” that would render the assessment disproporti onal. See Westlake Transp , 255 Mich App at 615. 5

Defendant further argues that the costs are not proportionate to the service because the court confers benefit to the pub lic (justice, fairness, order), not to the particular person on whom the costs are imposed.” This argument has merit.

At least one state court has r ecognized that the penal system benefits the public rather than the person convicted of a crime. 6 In State v Medeiros , 89 Hawaii 361; 973 P2d 736 (1999), the Supreme Court of Hawaii held that a local ordinance requiri ng a convicted person to pay “a service fee of $250.00 for services performed by the city in co nnection with the arrest, processing, investigation, and prosecution of the convicted per son” was an unauthorized 7 tax as opposed to a fee. In reaching that conclusion, the court reaso ned that “the ‘service’ of being investigated and prosecuted clearly does not ‘benefit’ the payo rs of the charge, i.e., the persons
convicted as a result of the work of the police and the prosecu tors; rather, it benefits society at large.” Medeiros , 89 Hawaii at 368. The court was skeptical of the argument th at a criminal
convict received a re habilitative b enefit, but “[e]ven assuming

, arguendo , that a convicted person
receives some benefit from his ex perience with the guiding hand of the law . . . the principal purpose of the penal system is to benefit society, not those wh o break the law.” Id . at 369-370.

We find the reasoning in Medeiros persuasive and conclude that, although the court costs at issue comport with the requirements of MCL 769.1k(1)(b)( iii ) and Konopka , they nevertheless are not “proportionate to the service rendered” because any ser vice rendered from the trial court’s role in the prosecuti on of defendant benefits primarily the public, not defendant.

5 In Bailey , this Court observed, as does pl aintiff, that, pursuant to MCL 769.1k,

the state court administrative office (SCAO) is tasked with com piling data, which information could be used to determine the proportionality of t he costs assessed under the statute. However, tria l courts only began collecting and submitting data in January 2015, and the SCAO has until July 1, 2016 to compile its first report. See MCL 769.1k(7), (9). Accordingl y, the evidence defendant co uld present to
establish the unreasonableness of costs assessed under the statute simply does not yet exist. [ Bailey , unpub op at 5.]

Even assuming the correctness of that analysis, and that the re ferenced report currently exists, defendant does not attempt to make any use of it for purposes o f this appeal.

6 Caselaw from sister state courts may be considered for its per suasive value. Travelers Prop Cas Co of America v Peaker Servs, Inc , 306 Mich App 178, 188; 855 NW2d 523 (2014).

7 In Medeiros , the “service fee” at issue was passed by local ordinance, and the power to tax in such instance was reserved for the state legislature. Id ., 89 Hawaii at 366. By contrast, as discussed elsewhere in this opin ion, when the Michigan Legislature passed MCL 769.1k(1)(b)( iii ), it provided sufficient guide lines to delegate properly its t axing authority in this instance to the judicial branch of government.-7- 3. PAYOR’S ABILITY TO REFUSE OR LIMIT

The last factor requires consid eration of “whether the payor h as the ability to refuse or
limit its use of the service to w hich the charge is related.” Westlake Transp , 255 Mich App at 612. Both plaintiff and defendantagree that, generally speaki ng, court costs are not voluntarily incurred. As plaintiff conceded: “It is clear that a criminal defendant has no power to ‘pass’ on his or her prosecution and avoid the underlying costs. Even if a defendant chooses to plead and forego a trial, costs are i ncurred and assessed.”

In sum, MCL 769.1k(1)(b)( iii ) clearly raises revenue rather than regulates behavior. Although the statute was written to ensure that costs imposed o n criminal defendants are proportional to the costs incurre d by the trial court, the cost s lack important hallmarks of a fee. Mainly, the benefactor of a successful felony prosecution is th e general public, not the defendant who is paying for that service. Accordingly, court costs do no t “confer[] benefits only upon the particular people who pay the fee” rather than “the general pub lic or even a portion of the public who do not pay the fee.” Westlake Transp , 255 Mich App at 612. And, once charged with a felony, a defendant lacks “the ability to refuse or limit its u se of the service to which the charge
is related.” Id . Considering the factors “in their totality,” the costs at is sue should be considered a tax, not a fee. 8 Id . In fact, while this Court is not bound by a party’s statemen t as to what the law is, we note that the prosecution concedes that MCL 769.1k(1 )(b)( iii ) “is, in fact, a tax, rather than a governmental fee.” Accordingly, MCL 769.1k(1)(b)( iii ) must comply with the DistinctStatement Clause. Gillette Commercial Operations North America & Subsidiaries v Dep’t of Treasury , 312 Mich App 394, 447; 878 NW2d 891 (2015).

D. DISTINCT-STATEMENT CLAUSE

The Distinct-Statement Clause pr ovides that “[e]very law whichimposes, continues or revives a tax shall distinctly state the tax.” Const 1963, art 4, § 32. As this Court recently explained in Gillette :

The purpose of [the Distinct-Statement] provision is to prevent the Legislature from being deceived in regard to any measure for levying taxes, and from

8 Defendant engages in what amounts to a drive-by citing of “The Headlee Amendment,” Const 1963, art 9, § 31, and Bolt v City of Lansing , 459 Mich 152, 158-159, 168; 587 NW2d 264 (1998), in support of his contention that the levying of a tax is prohibited without first seeking the approval of the electorate. Defendant’s cited authorities, however, pertain to the activities of local units of government and controlling the total amount of t axes that may be imposed on state taxpayers in any fis cal year. See, e.g., Airlines Parking, Inc v Wayne County , 452 Mich 527; 550 NW2d 490 (1996). “It is not enough for an appellant to simply announce a positi on or assert an error in his or her brief and then leave it up to this Court to discover and rationalize the basis for the claims, or unravel and elaborate the appellant’s argume nts, and then search for authority either to sustain or reject the appellant’s position.” Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Defendant has not estab lished that either of his citations of authority supports his argument, and thus, he has effectively abandoned this issue.-8- furnishing money that might by some indirection be used for obj ects not approved by the Legislature. The Distinct–Statement Clause is violated if a statute imposes an obscure or deceitful tax, such as when a tax is disguised as a regulatory fee. [ Gillette , 312 Mich App at 447 (quotation marks and citations omitted).]

Defendant contends that MCL 769.1k(1)(b)( iii ) violates the Distinct-Statement Clause because it does not reveal that it is creating a tax, establish a “rate of calculation,” specify or limit the amount a court may charge, or clarify what proportion of the court’s operating and
maintenance costs criminal defe ndants will bear. Defendant ass erts that these flaws in the statute
render the costs it sanctions obs cure and deceitful and, theref ore, unconstitutional.” We disagree.

MCL 769.1k(1)(b)( iii ) does not require that a court separately calcu late the actual costs in each case, and it does not set or specifically limit the amount of costs a court may impose. However, this is not to say that the statute fails to provide a ny guidance or limitations. MCL 769.1k(1)(b)( iii ) limits the costs to those “reaso nably related” to the costs t he court incurs, and provides a nonexclusive list of t he types of expenses the courtmay include in its determination of costs. Implicit in the statu te, and made explicit by this C ourt’s analysis in Konopka , 309 Mich App at 359, is the court’s obligati on to “establish a factual b asis” for the costs imposed.

In addition, the amendments occasioned by 2014 PA 352, which u shered in MCL 769.1k(1)(b)( iii ), did not produce an effect that was “obscure or deceitful,” Gillette , 312 Mich App at 447, in that the public act stated its purpose clearly a s follows:

This amendatory act is a curative measure that addresses the au thority of courts to impose costs under section 1k of chapter IX of the code of crim inal procedure, 1927 PA 175, MCL 769.1k, before the issuance of the supreme cou rt opinion in People v Cunningham , 496 Mich 145 (2014).

Further, MCL 769.1k(1)(b)( iii ) contains provisions ensuring transparency and accountability in connection with the costs imposed, which weig h against a result that is obscure or deceitful. For example, MCL 769.1k(7) requires that “[b]egi nning January 1, 2015, the court shall make available to a defendant information about any fine, cost, or assessment imposed under subsection (1), including information about any cost impo sed under subsection (1)(b)( iii ).” MCL 769.1k also requires that “each year the clerk of the court shall transmit a report to the state court administrative office” revealing the “[t]he total amount of costs that were imposed [and collected] by that court under subsection (1)(b)( iii ).” MCL 769.1k(8)(c)-(d). The SCAO in turn must compile the data and issue a corresponding annual report. MCL 769.1k(9). In addition, MCL 769.1k(1)(b)( iii ) contains a sunset clause, aut horizing the assessment of costs in the
manner set forth in that statut e only “until 36 months after th e date the amendatory act that added subsection (7) is enacted into law . . . .”

In sum, MCL 769.1k(1)(b)( iii ) was an effort by the Legislature to allow trial courts to impose costs on a convicted defendant in amounts reflecting the court’s actual operational costs
in connection with criminal case s. While a trial court retains some discretion in calculating the costs, the statutory guidance encourages a court to use a formu la to determine the average cost of a criminal case. In any event, the trial court must establish on the record its factual basis for-9- those costs. Konopka , 309 Mich App at 359. It is true that MCL 769.1k(1)(b)( iii ) does not contain the word “tax.” Nevertheless, defendant has presented no evidence indicating that the Legislature did not intend MCL 769.1k(1)(b)( iii ) to raise revenue for the courts, or that the court
costs collected are misdirected to a use unintended by the Legi slature. Gillette , 312 Mich App at 447. Accordingly, defendant has not carried his burden of prov ing that the statute violates the
Distinct-Statement Clause. See In re Request for Advisory Opin ion Regarding Constitutionality of 2005 PA 71 , 479 Mich at 11.

E. SEPARATION OF POWERS

Defendant next argues that MCL 769.1k(1)(b)( iii ) “violates the separation of powers provision of” of our state Constitution on the ground that “[t] he amended cost statute delegates to the trial court the authority t o determine the amount of the ta x” where “the power to tax rests solely with the Legislature.” H owever, other than identifying the pertinent constitutional provisions, defendant cites no authority in support of his argu ment that MCL 769.1k(1)(b)( iii ) violates the separation-of-power doctrine. Consequently, we co uld consider defendant’s argument abandoned on the ground that a party may not leave it to this Court to “ ‘unravel and elaborate for him his arguments . . . .’ ” Mudge v Macomb Co , 458 Mich 87, 105; 580 NW2d 845 (1998), quoting Mitcham v Detroit , 355 Mich 182, 203; 94 NW2d 388 (1959). Nonetheless, because this issue has been raised by several other defendants, and it is not yet the subject of a published opinion, we will address it.

Const 1963, art 3, § 2 states that “[t]he powers of government are divided into three branches: legislative, executive and judicial. No person exer cising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” As our Supreme Court has explained, however, t he separation-of-powers doctrine does not require an absolute sep aration between the branches of government:

While the Constitution provides for three separate branches of government, the
boundaries between these branches need not be airtight. In fac t, in designing the
structure of our Government and dividing and allocating the sov ereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intend ed to operate with absolute independence. The true meaning [of the separatio n-of-powers doctrine] is that the whole power of one of these departments s hould not be exercised by the same hands which possess the whole power of ei ther of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution.” [ Makowski v Governor , 495 Mich 465, 482-483; 852 NW2d 61 (2014) (alteration retained, quot ation marks and citations o mitted).]

“If the grant of authority to one branch is limited and specifi c and does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible.” Hopkins v Parole Bd , 237 Mich App 629, 636; 604 NW2d 686 (1999).

Regarding the imposition of taxes, the Michigan Constitution p rovides that “[t]he legislature shall impose taxes sufficient with other resources to pay the expenses of state-10- government,” and that “[t]he power of taxation shall never be s urrendered, suspended or contracted away.” Const 1963, art 9, §§ 1, 2. Thus, the power to tax and appropriate generally rests exclusively with the Legislature. UAW v Green , 498 Mich 282, 290; 870 NW2d 867 (2015).

Nevertheless, a legislature may delegate its powers. Hoffman v Otto , 277 Mich 437, 440; 269 NW 225 (1936) (noting that, “to the extent of public need,” the power of taxation may be delegated to municipal power). To delegate its powers without violating the separation of powers doctrine, a legislature must provide guidelines and stan dards to the body to which power is delegated. McNeil v Charlevoix Co , 484 Mich 69, 102; 772 NW2d 18 (2009) (M ARKMAN , J., concurring in part dissenting in part) (citations omitted) (not ing, for example, tha t the Legislature may “delegate a task to an executive branch agency if it provid es ‘sufficient standards’ ”). The Legislature’s delegation of author ity is proper if the standard s it provides are “reasonably as precise as the subject matter requires or permits.” Westervelt v Natural Resources Commission

, 402 Mich 412, 439-440; 263 NW2d 564 (1978) (quotation marks omi tted); City of Ann Arbor v Nat’l Ctr for Mfg Sciences, Inc , 204 Mich App 303, 308; 514 NW2d 224 (1994) (standards must be “sufficiently broad to permit efficient administration so th at the policy of the Legislature may be complied with, but not so broa d as to give uncontrolled and arbitrary power to the administrators.”).

In accordance with the foregoing principals, a panel of this C ourt determined in Bailey that MCL 769.1k(1)(b)( iii ) did not violate the constitutional provision mandating the se paration of governmental powers. Bailey , unpub op at 5-6. The panel, assuming that MCL 769.1k(1)(b)( iii ) “imposes a tax,” regarded the situation as “akin to the legis lative delegation of sentencing discretion to trial courts[,]” id . at 5, elaborating:

It is well established that the ultimate authority to provide f or penalties for criminal offenses is constitutionally vested in the Legislature , and the role of the judiciary is to impose and admini ster the sentencing statutes a s enacted. . . . [M]any sentencing statutes delegate discretion to the trial courts in determining a defendant’s appropriate sentence. However, the Supreme Court h as proclaimed that the separation of powers clause . . . is not offended by the Legislature delegating sentencing discretion in part and retaining sentenci ng discretion in part. [ Id. at 5-6 (quotation marks and citations omitted).]

The panel acknowledged that costs assessed pursuant to MCL 769. 1k(1)(b)( iii ) were not imposed as punishment, and therefore authorities addressing criminal pu nishment were not directly on point. Id . at 6. However, the panel he ld that “this delegation, like th e delegation of sentencing discretion, was not taken without providing guidance and parame ters.” Id . The panel further observed that “the bestowing of such discretion does not become an unconstitutional delegation of a legislative function where its exercise is controlled and guided by adequate standards in the statute authorizing it.” Id . at 6. The panel outlined the guidance provided by the Legisl ature in MCL 769.1k(1)(b)( iii ) before concluding that there was “no unconstitutional delegat ion of legislative authority.” Id . We find the analysis in Bailey to be persuasive.

In sum, even if our Legislature delegated some of its taxing a uthority to the circuit courts, the Michigan Constitution does not require an absolute separati on of powers. Makowski , 495-11- Mich at 482-483. In addition, MCL 769.1k(1)(b)( iii ) provides adequate guidance to the circuit courts by allowing them to impose “any cost reasonably related to the actual costs incurred by the trial court without separatel y calculating those costs invo lved in the particular case . . . [.]” Further, it was necessary for t he Legislature to provide “suffi ciently broad” guidance in order to accommodate the varying costs incurred by the circuit courts. Nat’l Ctr for Mfg Sciences, Inc

, 204 Mich App at 308. Although defendant bemoans the lack of a specified methodology for calculating court costs, the plain language of 769.1k(1)(b)( iii ) suggests that a court should impose costs in accordance with the cost of an average case. T his Court’s interpretation of MCL 769.1k(1)(b)( iii ) as requiring a factual basis for the assessed costs further e nsures that the
circuit courts do not exercise unfettered discretion under MCL 769.1k(1)(b)( iii ). See Konopka

, 309 Mich App at 359. Especially because he has cited no author ity in support of his position, defendant fails to carry his burden of proving that MCL 769.1k( 1)(b)( iii ) operates as an unconstitutional delegation of power. See In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71 , 479 Mich at 11.

F. CONCLUSION

MCL 769.1k(1)(b)( iii ) is a revenue-generating measure and the courts forcibly impos e the assessment against unwilling individuals. As such, it is atax, rather than a governmental fee. Although it does not expressly state that it imposes a tax, the statute is neither obscure nor deceitful, and thus, it does not run afoul of the Distinct-Stat ement Clause of Michigan’s Constitution. Finally, because the trial court must establish a factual basis for its assessment of costs to ensure that the costs imposed are reasonably related t o those incurred by the court in cases of the same nature, the legislative delegation to the tri al court to impose and collect the tax contains sufficient guidance and parameters such that it does n ot run afoul of the separation of powers provision of Const 1963, art 3 §2. Thus, we affirm the trial court’s imposition of court costs against defendant.

Affirmed.

/s/ Jane M. Beckering
/s/ Peter D. O’Connell /s/ Stephen L. Borrello