in Re Taylor Anne Killich ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
In re TAYLOR ANNE KILLICH.
PEOPLE OF THE STATE OF MICHIGAN, FOR PUBLICATION
April 20, 2017
Petitioner-Appellee, 9:00 a.m.
v No. 329941
Washtenaw Circuit Court
TAYLOR ANNE KILLICH, LC No. 14-000567-DL
Respondent-Appellant.
Before: M.J. KELLY, P.J., and STEPHENS and O’BRIEN, JJ.
STEPHENS, J.
Respondent, minor Taylor Anne Killich, appeals as of right the trial court order
dismissing a petition against her for poisoning food, drink, medicine, or water supply, MCL
750.436(2)(a), an offense punishable by imprisonment for fifteen years, a fine of $10,000, or
both, and denying her motion to waive a previously ordered $100 probation supervision fee. We
vacate and remand.
I. BACKGROUND
Petitioner filed a delinquency proceedings petition against respondent for violating MCL
750.436(2)(a) after an incident on June 5, 2014. On May 6, 2015, respondent pleaded no contest
before a referee. A probationary order was prepared in which respondent was placed on
probation for a period of three months. She was ordered to complete 20 hours of community
service by August 21, 2015, to participate in “the Victim Awareness class,” and submit urine
screens if requested by her probation officer. Under the proposed order, respondent’s probation
officer could also impose an additional 20 hours of community service at his or her discretion.
The court denied respondent’s motion to waive a $100 probation supervision fee.
At the sentencing hearing before the referee, respondent’s counsel agreed that probation
was an appropriate remedy, but objected to the $100 probation supervision fee, citing People v
Juntikka, 310 Mich App 306; 871 NW2d 555 (2015). Counsel’s argument was unsuccessful and
he requested a review hearing before the trial court.
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At the September 23, 2015 review hearing, respondent’s counsel asserted that respondent
completed all probation and community service requirements, but again objected to the $100
probation supervision fee. Respondent’s counsel argued that the court did not have statutory
authority under the Juvenile Code to impose a pre-determined flat rate fee and that the Juvenile
Code only permitted the court to be reimbursed for individualized costs of probation supervision
services extended to individual juveniles.
Petitioner argued that three statutory provisions allowed for the imposition of a probation
supervision fee: 1) MCL 712A.18(1)(b), 2) MCL 712A.18(3), and 3) MCL 712A.18(12).
Petitioner argued that MCL 712A.18(1)(b) required a juvenile under supervision or probation to
pay the minimum state costs prescribed by statute and that as a probationer, respondent was at
least required to pay a statutory minimum of $68. Petitioner also argued that MCL 712A.18(3)
authorized orders of disposition placing a juvenile in the juvenile’s own home to contain a
provision for reimbursement by the juvenile to the court for the cost of service. Lastly, petitioner
argued that MCL 712A.18(12) stated that if a court entered an order of disposition for a juvenile
offense, the court “shall order” the juvenile to pay a statutory assessment defined under MCL
780.905, which in respondent’s case was a fee of $130. Petitioner maintains the same on appeal.
Petitioner also distinguished Juntikka, arguing the probation fee in that case was
impermissible because it was used to purchase general probation department supplies, whereas in
the present case the $100 probation supervision fee went directly to the general Washtenaw
County General Fund. The court called Donna White, a probation supervisor in the juvenile
court who testified that the probation office charges the same $100 probation supervision fee to
all juveniles on probation and that the funds go to the county General Fund. The court
acknowledged that the fee may go to the general fund but affirmed its imposition stating,
So I do think, because of the mechanism of funding and the allocation it is
actually a reimbursement, whether or not the fact it goes to the general fund,
whether or not the fact it is a flat albeit extremely minimal fee compared to the
true cost; you may be right in that legal analysis. I will leave that to the Court of
Appeals to direct us as to where we go but at this stage the motion is denied.
II. STANDARD OF REVIEW
This case involves the interpretation of multiple statutes contained in the Juvenile Code,
MCL 712A.1 et seq. Statutory interpretation is a question of law that we review de novo on
appeal. In re Tiemann, 297 Mich App 250, 257; 823 NW2d 440 (2012).
III. ISSUE PRESERVATION
To preserve an issue for appellate review, the issue must be raised before, addressed by,
and decided by the lower court. In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014).
Respondent filed a challenge to the $100 fee and argued against its imposition at the subsequent
motion hearing. The court disagreed. Because this issue was raised before, addressed, and
decided by the trial court, it is preserved for review.
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IV. ANALYSIS
We find, as did the trial court, that local units of government share the costs for juvenile
adjudication and supervision, whether in-home or otherwise within the state. Unlike the adult
offender, a delinquent juvenile becomes a ward of the state and we will look to the case law and
statutes addressing penalties, fines, fees, and costs for adjudication of state offenses under the
Juvenile Code. In Michigan, a court cannot impose penalties or costs in a criminal case unless
specifically authorized by statute. People v Cunningham, 496 Mich 145, 149-151; 852 NW2d
118 (2014). As respondent points out, delinquency proceedings under the Juvenile Code are not
criminal cases. However, when addressing a question implicating the Juvenile Code, this Court
routinely looks to the adult criminal code and cases that interpret it so long as they are not in
conflict or duplicative of a Juvenile Code provision. In re McDaniel, 186 Mich App 696, 698-
699; 465 NW2d 51 (1991); see also In re Carey, 241 Mich App 222, 227; 615 NW2d 742 (2000)
(discussing that juvenile proceedings are not considered adversarial in nature but are still closely
analogous to the adversary criminal process).
When looking to the relevant statutory provisions, this Court must interpret statutory
language reasonably and in context, keeping in mind the purpose of the statute. McCahan v
Brennan, 492 Mich 730, 739; 822 NW2d 747 (2012). The Legislature is presumed to have
intended the meaning it plainly expressed. People v Gardner, 482 Mich 41, 50; 753 NW2d 78
(2008). If the meaning of statutory language is clear, judicial construction is normally neither
necessary nor permitted. In re Receivership of 11910 South Francis Rd, 492 Mich 208, 222; 821
NW2d 503 (2012).
Petitioner asserts here, as it did in the trial court, that there is statutory authority for
upholding the fee. Petitioner first contends the $100 probation supervision fee is authorized by
MCL 712A.18(1)(b). We disagree. MCL 712A.18(1)(b) allows a court to enter an order of
disposition placing a juvenile under probation or supervision. In pertinent part, MCL
712A.18(1)(b) specifically states that “[t]he court also shall order, as a condition of probation or
supervision, that the juvenile shall pay the minimum state cost prescribed by section 18m of this
chapter.” MCL 712A.18m(a) instructs that
[i]f a juvenile is within the court’s jurisdiction . . . and is ordered to pay any
combination of fines, costs, restitution, assessments, or payments arising out of
the same juvenile proceeding, the court shall order the juvenile to pay costs of not
less than . . . $68.00, if the juvenile is found to be within the court’s jurisdiction
for a felony. [MCL 712A.18m(a).]
MCL 712A.18m(5)(a) defines felony as “a violation of a penal law of this state for which the
offender may be punished by imprisonment for more than 1 year or an offense expressly
designated by law to be a felony.”
The language of MCL 712A.18(1)(b) is plain, and the intent is clear. It authorizes the
court to order a juvenile within its jurisdiction to pay the minimum state cost of not less than
$68.00 for a felony. The offense for which respondent was found guilty, MCL 750.436(2)(a),
was a felony under MCL 712A.18m(5)(a) because it carried with it a term of imprisonment for
more than 1 year. Accordingly, respondent must pay the minimum state cost of $68 however,
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contrary to petitioner’s understanding, MCL 712A.18(1)(b) does not authorize the $100
probation supervision fee.
Petitioner next contends that the $100 probation supervision fee is authorized by MCL
712A.18(12). Again, we disagree. MCL 712A.18(12) states that “[i]f the court enters an order
of disposition based on an act that is a juvenile offense as defined in section 1 of 1989 PA 196,
MCL 780.901, the court shall order the juvenile to pay the assessment as provided in that act . . .
.” MCL 780.901(1)(f) defines “juvenile offense” as “an offense committed by a juvenile under
the jurisdiction of the juvenile division of the probate court or the family division of circuit
court . . . that if committed by an adult would be a felony, misdemeanor, or ordinance
violation . . . .” Again, respondent stands convicted of an offense that would be an adult felony.
Thus, the lower court was required to order respondent to pay the assessment provided in MCL
780.905(3).
MCL 780.905(3) states: “The court shall order each juvenile for whom the court enters
an order of disposition for a juvenile offense to pay an assessment of $25.00. The court shall
order a juvenile to pay only 1 assessment under this subsection per case.” This $25 assessment
must be used to pay for crime victim’s rights services. MCL 780.905(4). Plainly read, MCL
712A.18(12) authorizes the payment of a $25.00 assessment by juveniles who have an order of
disposition entered against them. The statute does not otherwise speak to the $100 probation
supervision fee.1
Lastly, petitioner contends that the $100 probation supervision fee is authorized by MCL
712A.18(3). MCL 712A.18(3) states as follows:
An order of disposition placing a juvenile in the juvenile’s own home
under subsection (1)(b) may contain a provision for reimbursement by the
juvenile, parent, guardian, or custodian to the court for the cost of service. If an
order is entered under this subsection, an amount due shall be determined and
treated in the same manner provided for an order entered under subsection (2).
1
Although not dispositive of the issue raised, petitioner incorrectly asserts that the crime
victim’s rights services assessment imposed on respondent should be $130 under MCL
780.905(1)(a), instead of $25 under MCL 780.905(3). Neither MCL 780.905(1) nor (2) address
juvenile dispositions. Indeed, MCL 780.905(2) clearly instructs that a $130 assessment under
MCL 780.905(1)(a) is applicable to adults in criminal cases, not juvenile dispositions. MCL
780.905(2) states, “The court shall order a respondent to pay only 1 assessment under subsection
(1) per criminal case. . . .” (Emphasis added).
It is MCL 780.905(3) that addresses juvenile dispositions: “The court shall order each
juvenile for whom the court enters an order of disposition for a juvenile offense to pay an
assessment of $25.00. The court shall order a juvenile to pay only 1 assessment under this
subsection per case.” (Emphasis added.) See People v Earl, 495 Mich 33, 37; 845 NW2d 721
(2014) (explaining that under the crime victim’s rights assessment, MCL 780.904, a convicted
felon is assessed $130, those convicted of misdemeanors are assessed $75, and juveniles are
assessed $25 when the court enters an order of disposition for a juvenile offense).
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Respondent contends the $100 probation supervision fee is not authorized by MCL
712A.18(3) because it is not a “reimbursement” within the purview of the statute because when it
was imposed on respondent, no expense had been incurred.
In relevant part, MCL 712A.18(2) states:
An order of disposition placing a juvenile in or committing a juvenile to
care outside of the juvenile’s own home . . . shall contain a provision for
reimbursement by the juvenile, parent, guardian, or custodian to the court for the
cost of care or service. The order shall be reasonable, taking into account both the
income and resources of the juvenile, parent, guardian, or custodian. The amount
may be based upon the guidelines and model schedule created under subsection
(6). . . .
MCL 712A.18(6) states:
The office of the state court administrator, under the supervision and
direction of the supreme court, shall create guidelines that the court may use in
determining the ability of the juvenile, parent, guardian, or custodian to pay for
care and any costs of service ordered under subsection (2) or (3). The guidelines
shall take into account both the income and resources of the juvenile, parent,
guardian, or custodian.
Respondent argues the $100 probation supervision fee falls outside the purview of MCL
712A.18(3) because the statute only authorizes “reimbursements” and the $100 fee is not a
reimbursement. The crux of respondent’s contention is that an imposed fee can only be
classified as a reimbursement if the state has already incurred an expense. We disagree.
Unless defined in the statute, every word or phrase of a statute should be accorded its
plain and ordinary meaning. Spectrum Health Hosps v Farm Bureau Mut Ins Co, 492 Mich 503,
515; 821 NW2d 117 (2012). The word “reimbursement” is not defined in MCL 712A.18 or the
Juvenile Code.2 When construing statutory language, the context in which it is placed must be
considered. Menard, Inc v Dep’t of Treasury, 302 Mich App 467, 471; 838 NW2d 736 (2013),
lv den 495 Mich 1000 (2014), citing In re Receivership of 11910 South Francis Rd, 492 Mich
208, 222; 821 NW2d 503 (2012).
Again, MCL 712A.18(3) provides that “[a]n order of disposition placing a juvenile in the
juvenile’s own home under subsection (1)(b) may contain a provision for reimbursement . . . to
the court for the cost of service . . . .” The statute clearly speaks of providing for reimbursement
when the order of disposition is issued. That is, the statute provides authority for placing a
2
The guidelines promulgated under MCL 712A.18(6) provide that “[a] reimbursement order
should not exceed the actual cost-of-care and/or service. The intent of reimbursement is to
recover the cost of expenses or services.” SCAO, Guidelines For Court Ordered Reimbursement
And Procedures For Reimbursement Program Operations (October 1990), p 3. Respondent does
not argue that the fee imposed on respondent exceeded the state’s actual cost to supervise her.
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reimbursement provision in the disposition order. In re Brzezinski, 454 Mich 890; 562 NW2d
785 (1997), supports this reading of the statute. Adopting the dissenting opinion from the
Michigan Court of Appeals, In re Brzezinski, 214 Mich App 652, 677; 542 NW2d 871 (1995),
the Supreme Court ruled that MCL 712A.18(2) “provides for the reimbursement order to be
included in the order that originally places a child under state supervision. Thus, the court must
order a party to reimburse the state’s expenses before it is aware how much the state will
ultimately spend on a child . . . .” While the authority granted differs between MCL 712A.18(2)
and MCL 712A.18(3), § 18(2) uses the imperative “shall” while § 18(3) uses the permissive
“may,” both have the same timing constraint.
In sum, the plain language of MCL 712A.18(3) allows a court to impose a reimbursement
provision before it has incurred any expense.
Whether the $100 probation supervision fee falls outside the purview of MCL
712A.18(3) because MCL 712A.18(3) does not authorize flat rate assessments is a different
question. On this point, we agree because the plain language of the statute indicates the court
should be reimbursed for “the cost of service.” The use of the definite article signals that the
statute is speaking about something already in existence, i.e., a cost already incurred. See
SCAO, Guidelines For Court Ordered Reimbursement And Procedures For Reimbursement
Program Operations (October 1990), p 3.
Similarly, People v Juntikka, supra, supports the proposition that imposed probation fees
must be specific to the cost the state expends on a particular respondent. In Juntikka, an adult
respondent was sentenced to a five-year probationary term and ordered to pay a $100 probation
enhancement fee. 310 Mich App at 308. On appeal, the Court considered whether the $100
probation enhancement fee was authorized by the statute that governs conditions a trial court
may impose during a term of adult probation, MCL 771.3. Id. at 308-309. The Court held the
fee was improper because it was not specific to the respondent and was imposed to account for
general operating costs incurred by the probation department. Id. at 314-315. Although the
present case involves a juvenile, the same underlying principle is at play.
White stated that the $100 fee was “standard for any young person going on probation”
and that the probation department charges the fee to all juveniles on probation, regardless of their
level of probation. White’s testimony makes clear the $100 fee imposed did not take into
account differing supervision costs the state may need to expend for different juveniles.
Therefore, because the fee does not qualify as a reimbursement for “the cost of service” of a
particular juvenile, it is also not statutorily authorized under MCL 712A.18.
Respondent was under state supervision for a period of three months. At the motion
hearing, the trial court reasoned as follows: “I am quite certain that . . . $100.00 from a juvenile
for the time and costs that it costs the taxpayers to handle their case is noth—[sic] isn’t even one
ice cube—not even the tip of the iceberg.” The trial court further concluded that the $100
probation supervision fee was an “extremely minimal fee compared to the true cost” of state
supervision. While we do not doubt that this conclusion is reasonable, there is no evidence in the
record of this proceeding to support a finding that the amount imposed in the order is either less
than or equal to the cost of service.
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We vacate the $100 probation supervision fee and remand for entry of a corrected order
of disposition. We do not retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Michael J. Kelly
/s/ Colleen A. O'Brien
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