Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  July 10, 2019                                                                    Bridget M. McCormack,
                                                                                                 Chief Justice

  155849                                                                                David F. Viviano,
                                                                                        Chief Justice Pro Tem

                                                                                      Stephen J. Markman
  PEOPLE OF THE STATE OF MICHIGAN,                                                         Brian K. Zahra
            Plaintiff-Appellee,                                                      Richard H. Bernstein
  v                                                        SC: 155849                Elizabeth T. Clement
                                                           COA: 330876               Megan K. Cavanagh,
                                                                                                      Justices
                                                           Washtenaw CC: 13-001315-FH
  SHAWN LOVETO CAMERON, JR.,
             Defendant-Appellant.
  _________________________________________/

         On November 19, 2018, the Court heard oral argument on the application for leave
  to appeal the April 4, 2017 judgment of the Court of Appeals. On order of the Court, the
  application is again considered, and it is DENIED, because we are not persuaded that the
  question presented should be reviewed by this Court.

         MCCORMACK, C.J. (concurring.)

         I concur in the Court’s order denying leave to appeal because I agree that MCL
  769.1k(1)(b)(iii) distinctly states a tax and that the appellant has not established that the
  statute lacks an intelligible principle or violates the nondelegation doctrine. Even so, I
  write separately because it’s unclear to me that the statute does not prevent the judicial
  branch from “accomplishing its constitutionally assigned functions.”               Nixon v
  Administrator of Gen Servs, 433 US 425, 443 (1977).

         My concerns about the constitutionality of MCL 769.1k(1)(b)(iii) are underscored
  by the troubling letters submitted by amicus curiae Michigan District Judges Association
  (MDJA). They describe the pressures they face as district judges to ensure their courts
  are well-funded. For example, one city threatened to evict a district court from its
  courthouse because it was unable to generate enough revenue. Another judge noted that
  the same city suggested that judges eliminate personnel if they could not generate enough
  revenue to cover the operational costs. A third judge recounted that his local funding unit
  referred to the district court as “the cash cow of our local government.”

         The MDJA contends that MCL 769.1k(b)(iii) creates a conflict of interest by
  shifting the burden of court funding onto the courts themselves. In the MDJA’s telling,
  MCL 769.1k(1)(b)(iii) incentivizes courts to convict as many defendants as possible. The
  “constant pressure to balance the court’s budgets could have a subconscious impact on
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even the most righteous judge.” MDJA Brief, p 16. They believe that the statute thus
violates the Fourteenth Amendment, because the “possible temptation,” Tumey v Ohio,
273 US 510, 532 (1927), of raising more revenue by increasing the number of
convictions infringes defendants’ due-process rights.

        The MDJA could be right. The United States Supreme Court has consistently
overturned convictions where the presiding judge had any form of pecuniary interest in a
defendant’s conviction. E.g., Tumey, 273 US 510 (in which a “Liquor Court” judge was
also the mayor, and his judge/mayor paycheck came directly from court costs for
convicted defendants); Ward v Village of Monroeville, 409 US 57 (1972) (overturning
traffic convictions because a substantial portion of village income came from fines, fees,
and costs imposed against defendants by the village mayor in judicial capacity; mayor’s
executive responsibilities for village presented a “possible temptation” when adjudicating
traffic offenses). No matter how neutral and detached a judge may be, the burden of
taxing criminal defendants to finance the operations of his court, coupled with the intense
pressures from local funding units (and perhaps even from the electorate), could create at
least the appearance of impropriety. Assigning judges to play tax collector erodes
confidence in the judiciary and may seriously jeopardize a defendant’s right to a neutral
and detached magistrate.

       These issues have not been squarely presented in this case, and I am not
comfortable answering them today and without a fully developed record. But I expect we
will see them brought directly to us before long.

        I recognize that denying leave to appeal in this case will allow our current system
of trial court funding in Michigan to limp forward—at least until MCL 769.1k(1)(b)(iii)
sunsets next year. Yet our coordinate branches have recognized the long-simmering
problems. The interim report of the Trial Court Funding Commission shows a potential
way forward that promises to address these (and other) concerns. I urge the Legislature
to take seriously the recommendations of the Commission, before the pressure placed on
local courts causes the system to boil over.

       BERNSTEIN, J., joins the statement of MCCORMACK, C.J.

      CAVANAGH, J., did not participate in the disposition of this case because the Court
considered it before she assumed office.




                         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.
                         July 10, 2019
       s0709
                                                                             Clerk
