Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  August 3, 2018                                                                     Stephen J. Markman,
                                                                                                Chief Justice

  156755                                                                                   Brian K. Zahra
                                                                                   Bridget M. McCormack
                                                                                         David F. Viviano
                                                                                     Richard H. Bernstein
  In re JACKSON.                                                                          Kurtis T. Wilder
  _________________________________________                                         Elizabeth T. Clement,
                                                                                                     Justices
  DOUGLAS CORNELL JACKSON,
           Plaintiff-Appellant,
  v                                                        SC: 156755
                                                           COA: 339724
  WAYNE CIRCUIT COURT JUDGE,
             Defendant-Appellee.
  _________________________________________/


         On order of the Court, the application for leave to appeal the September 20, 2017
  and October 19, 2017 orders of the Court of Appeals is considered. Pursuant to MCR
  7.305(H)(1), in lieu of granting leave to appeal, we VACATE the Court of Appeals
  orders, and we REMAND this case to the Court of Appeals, as on reconsideration
  granted, for plenary consideration of the plaintiff’s argument that MCL 600.2963(8), as
  applied to his complaint for superintending control, is unconstitutional.

         We do not retain jurisdiction.

         MCCORMACK, J. (concurring).

          I concur in the order remanding the case to the Court of Appeals as on
  reconsideration granted. I write separately to respond to Justice WILDER’s suggestion
  that the Court of Appeals consider why Mr. Jackson is not permitted to work when
  evaluating his ability to pay his outstanding court fees. Justice WILDER appears to expect
  litigants to show good cause for their indigence before their fees will be waived or
  suspended. I note that neither court rule nor statute permits such a consideration.

          MCL 600.2963 governs the commencement of civil actions by prisoners. The
  statute directs courts to evaluate a claim of indigence on the basis of “a certified copy of
  [the prisoner’s] institutional account, showing the current balance in the account and a
  12-month history of deposits and withdrawals for the account.” MCL 600.2963(1). If
  the balance in the prisoner’s account is less than the filing fee, the court must require the
  prisoner to pay a partial filing fee. MCL 600.2963(3). But “if the prisoner has no assets
  and no means by which to pay the initial partial filing fee,” the court may, “pursuant to
  court rule, waive[] or suspend[] the payment of fees” until “the reason for the waiver or
  suspension no longer exists.” 1 MCL 600.2963(7). The statute does not grant courts the

  1
   Since the potentially unconstitutional application of the statute occurred when the Court
  of Appeals dismissed Mr. Jackson’s motion in this case, the relevant question is whether
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discretion to consider other factors. Even if Justice WILDER is correct that “means by
which to pay” may comprise employment income, the statute directs courts to make a
determination based on a certified copy of the prisoner’s institutional account balance and
12-month history of deposits and withdrawals. Deposits may establish that the prisoner
has the means by which to pay a filing fee. But nothing in the statute suggests that the
absence of deposits somehow permits a court, sua sponte, to hold an evidentiary hearing
to determine if the prisoner has failed to earn money despite being capable of working,
or, if he is incapable of working, whether the reason for his inability is one the court finds
acceptable.

        The court rule, too, limits courts to considering only ability to pay. “If a party
shows by ex parte affidavit or otherwise that he or she is unable because of indigency to
pay fees and costs, the court shall order those fees and costs either waived or suspended
until the conclusion of the litigation.” MCR 2.002(D). Black’s Law Dictionary defines
“indigent” as “[s]omeone who is found to be financially unable to pay filing fees and
court costs and so is allowed to proceed in forma pauperis.” Black’s Law Dictionary
(10th ed).

       Finally, the consideration of a litigant’s explanation for indigence is itself
constitutionally suspect. Although “fee requirements ordinarily are examined only for
rationality, . . . access to judicial processes in cases criminal or ‘quasi criminal in
nature’ . . . [may not] turn on ability to pay.” MLB v SLJ, 519 US 102, 123-124 (1996),
quoting Mayer v Chicago, 404 US 189, 196 (1971). All indigent litigants have a
fundamental right of access to judicial processes in criminal and quasi-criminal cases; a
court may not abridge the fundamental rights of some subset of indigents because it finds
their poverty inexcusable.

       In our system, courts decide if a litigant is unable to pay, not why a litigant is
unable to pay. The alternative Justice WILDER offers is novel, but it is also unworkable.
And it has no basis in statute or court rule.

       VIVIANO and BERNSTEIN, JJ., join the statement of MCCORMACK, J.

       WILDER, J. (dissenting).

       I would deny leave to appeal. Not only did defendant fail to preserve the issue of
the constitutionality of MCL 600.2963(8), in addition, the case that defendant relies on in
his application to the Court, Burns v Ohio, 360 US 252 (1959), involved an appeal in a


at the time he filed this motion he had assets or means by which to pay an initial partial
filing fee, not whether he had “the ability to satisfy his unpaid fees” from the previous
action.
                                                                                           3

criminal case, while the instant case involves the ability to bring a subsequent civil action
when fees are outstanding for a previous civil action.

       Given this Court’s remand nevertheless, I would note that, according to the
Michigan Department of Corrections website, Mr. Jackson is currently imprisoned at
Security Level IV. 2 The MDOC security levels range from I to V, and, “[i]n general, the
higher the security level, the more security risk a prisoner presents in terms of
manageability or escape potential.” 3 Thus, in my view, when considering whether MCL
600.2963(8) is unconstitutional “as applied” to Mr. Jackson, 4 the Court of Appeals should
consider all of the relevant facts and circumstances. 5 The Legislature has indicated that a
prisoner is not prohibited from “commencing a civil action or filing an appeal in a civil
action if the prisoner has no assets and no means by which to pay the initial partial filing




2
  See Michigan Department of Corrections, Offender Tracking Information System
<http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=748757> (accessed
July 28, 2018) [https://perma.cc/SRG4-AJWH].
3
     See    Michigan       Department     of     Corrections,   Definitions/Glossary
<https://www.michigan.gov/corrections/0,4551,7-119-1441_1519---,00.html> (accessed
July 28, 2018) [https://perma.cc/NU7X-EJSJ] (under entry for “Level I - V prison
housing”).
4
 “When faced with a claim that application of a statute renders it unconstitutional, the
Court must analyze the statute ‘as applied’ to the particular case.” Crego v Coleman, 463
Mich 248, 269; 615 NW2d 218 (2000).
5
  Per MDOC Policy Directive 05.02.110, prisoners “shall be assigned to work and/or
school . . . .”         Policy        Directive      05.02.110(A),  available     at
<https://www.michigan.gov/documents/corrections/05_02_110_225743_7.pdf>
(accessed July 28, 2018) [https://perma.cc/9V2Z-BY4X]. Both work and school
assignments generally pay prisoners according to a specified scale. MDOC Policy
Directive 05.02.110, Policy Statement. However, there are circumstances under which
prisoners are deemed “unemployable prisoners.”           See MDOC Policy Directive
05.01.100(Z),                                  available                          at
<https://www.michigan.gov/documents/corrections/0501100_PD_602177_7.pdf>
(accessed July 28, 2018) [https://perma.cc/3UKJ-VNAZ].
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fee.” MCL 600.2963(7) (emphasis added). However, “the fact of a prisoner’s
incarceration cannot be the sole basis for a determination of indigency.” Id. As a result,
consideration solely of “a certified copy of the prisoner’s institutional account balance
and 12-month history of deposits and withdrawals” may or may not be conclusive
regarding a prisoner’s indigency. Indeed, consideration of whether a prisoner has the
“means by which to pay” logically contemplates consideration of a prisoner’s capacity to
earn wages and his or her exercise of that capacity, 6 which directly implicates the
prisoner’s ability to satisfy his or her unpaid fees.

       MARKMAN, C.J., joins the statement of WILDER, J.




6
 In this context, “means” is defined as “available resources, especially for the payment of
debt.” Black’s Law Dictionary (8th ed).



                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         August 3, 2018
       d0731t
                                                                             Clerk
