MARY BETH KELLY, J.
These three cases involve the felony of failure to pay court-ordered child support (felony nonsupport) under MCL 750.165 and the rule of People v. Adams,
These cases require us to consider, for the first time, the nature of Michigan's felony-nonsupport statute and the proper defense to a nonsupport charge. We endorse the well-established common-law defense of impossibility as the proper defense to felony nonsupport. In doing so, we differ from the dissent both in terms of our temporal view and our sense of parents' financial priorities. Consistently with the Legislature's expressed intent in the child support statutes, we believe that to avoid conviction for felony nonsupport, parents should be required to have done everything possible to provide for their child and to have arranged their finances in a way that prioritized their parental responsibility so that the child does not become a public charge. Unlike the dissent, which would undermine the legislative choices that are reflected in the statutory child support framework, our view of parental responsibility and obligation leads us to recognize the impossibility defense. This defense differs from that advanced by the dissent because we provide guidance to the circuit courts regarding how the defense is to be adjudicated, and although a parent's ability to pay is one factor we consider, we also take other factors into account. Allowing a mere inability-to-pay defense as the dissent suggests would undermine Michigan's legislative system, which requires ability to pay to be considered in establishing the support order in the first instance, explicitly prohibits the retroactive modification of child support orders, and makes nonsupport a strict-liability criminal offense. Our view is consistent with the plain language of Michigan's nonsupport statute and gives as much meaning as possible to the Legislature's expressed intentions, as we are required to do by our Constitution. If Michigan has placed greater priority than other states on the issue of child support as reflected in its child support laws, we are, in recognizing this defense, simply permitting the Legislature to legislate as it sees fit, in accordance with its legislative directive and in accordance with our judicial role.
Defendant Selesa Arrosieur Likine (Likine) and Elive Likine (Elive) divorced in June 2003. The Family Division of the Oakland County Circuit Court (the family court) gave Elive physical custody of the parties' three children and ordered Likine to pay child support. The family court recognized Likine's "history of fairly serious mental health conditions" and her diagnosis of depressive-type schizoaffective disorder. The family court initially ordered $54 a month in child support and then raised it to $181 a month in August 2004.
Beginning in 2005, Likine failed to comply with the order requiring her to pay child support.
On September 28, 2006, the family court denied Likine's motion for reconsideration in a five-page written opinion, concluding that Likine's testimony was not truthful, that her tax returns did not accurately reflect her income, and that Likine had "misrepresented her income so many times that there is no way to adequately determine her income." The family court recognized that Likine "does suffer from some form of mental illness," but the evidence presented led the court to conclude that she was "working and earning an income" because she was "maintaining herself,
On March 20, 2008, the Department of Attorney General, Child Support Division, charged Likine criminally with felony nonsupport between February 1, 2005, and March 11, 2008, in violation of MCL 750.165. On September 29, 2008, the prosecutor filed a motion in limine to bar Likine from offering or referring, directly or indirectly, to her ability or inability to pay court-ordered child support, including her employment status and claims that her actual income was less than the amounts used to calculate her support obligation. Citing Adams,
At the motion hearing on October 8, 2008, Likine argued that the prosecutor was seeking to deprive her of any defense to the charge against her and that this violated her constitutional right to due process. She claimed that she had no source of income or assets from which to pay the court-ordered child support. Likine further testified that she had been unemployed since September 2005, when she was released from a month-long hospitalization; that she was disabled with schizoaffective disorder, for which she had received periodic treatment, including medication; that her sole source of income was supplemental security income (SSI) amounting to $637 a month; that she had tried to hold a part-time temporary job but was physically and mentally unable to do so; that the bank foreclosed on and "short sold" her Rochester Hills home in June 2007; and that although she had held two professional licenses, they were inactive or had lapsed and she was unable to use them because of her credit rating and her disability. According to Likine, she had been able to pay $181 a month in child support in 2004 because that amount was based on her actual income. Likine provided the circuit court with a copy of her social security earnings record covering 1985 through 2003, which showed no income from 1994 through 2002.
At the jury trial in November 2008, the prosecutor presented the testimony of Elive and an FOC child-support-account specialist. The specialist testified that the child support order entered when Likine and Elive divorced required Likine to pay $35 a month for one child and $48 a month for two. The amount was subsequently increased, in August 2004, to $181 a month. For the period subject to the felony-nonsupport charge, February 2005 through March 2008, the amount of support ordered was initially $181 a month, but in June 2005 it was raised to $1,131 a month. The specialist testified that Likine had made very sporadic payments, including payments in only 12 of the 37 months charged, in amounts ranging from $100 to $281.
Likine testified on her own behalf. She stated that she was able to pay both the $54 a month that was initially ordered and the $181 monthly amount, but when the support amount was increased to $1,131, she was unable to make the payment. She acknowledged that she had purchased the home in Rochester Hills, but stated that the house "was put in [her] name" and that her boyfriend had paid for it. In closing, defense counsel argued that the amount of Likine's child support had effectively been "made up" by using imputed income as the basis for calculation and that "the child support should not have been in the amount of $1,131." Counsel further argued that Likine was "being torn apart by factors she [had] no control over."
The jury found Likine guilty as charged. Likine moved for relief from the judgment or for reconsideration, arguing that MCL 750.165 should be declared unconstitutional or, alternatively, that the order granting the prosecutor's motion in limine should be reconsidered and vacated so that Likine could offer a defense to the charge. The circuit court denied the motion "for the reasons first stated upon the record October 8, 2008 and that this matter is a strict liability offense." Subsequently, the circuit court sentenced Likine to probation for one year with 48 days' credit and stated that the family court would determine the amount of restitution.
In February 2009, Likine filed a claim of appeal, and in March 2009, through appellate counsel, she also moved for a new trial in the circuit court. Likine argued that her rights under the Michigan Constitution's Due Process Clause were violated when she was not allowed to present evidence of her inability to pay as a defense to the criminal charge of felony nonsupport.
The Court of Appeals affirmed, holding, in part, that Likine's "argument is actually an impermissible collateral attack on the underlying support order."
We granted leave, with People v. Parks and People v. Harris, to consider whether the rule of Adams, which held that inability
Defendant Michael Joseph Parks (Parks) and his wife Diane Parks (Diane) divorced in September 2000. Defendant, an orthopedic surgeon, was a rural physician with a solo practice who sometimes worked as a contract physician. The Ingham family court initially ordered defendant to pay $230 a week in child support for the parties' three children. On August 19, 2003, the family court modified Parks's support obligation to $761 a week. That obligation was in effect throughout the criminal proceeding in this case.
Parks was charged criminally with violating MCL 750.165 for failing to pay child support from October 1, 2006, through July 15, 2008. At a bench trial in January 2009, Diane testified that Parks had made no support payments during the period charged. She testified that during that time, Parks had made several requests for a reevaluation of his child support obligation and that there had been a hearing before the family court at which Parks was represented by counsel. After this hearing, the family court denied Parks's request because he had failed to provide any documentation to substantiate his claim that he could not meet his child support obligation.
An Ingham County FOC officer testified at the trial. The officer testified that Parks had made no child support payments from October 2006 to July 2008 and that the FOC had tried to enforce Parks's child support obligation by initiating show-cause hearings and obtaining income-withholding orders and bench warrants for Parks's arrest. As of the date of the trial, none of these attempts had been successful. Parks's child support arrearage amounted to more than $262,000.
Parks testified that the FOC improperly imputed to him the income of an urban physician in a group practice, whereas his income as a rural sole practitioner was "considerably lower."
At the close of trial, the prosecutor argued that each of the three elements necessary to convict Parks of violating MCL 750.165 had been established: that Parks was ordered to pay child support, that he was either personally served or appeared in the underlying matter, and that he had failed to pay the ordered amount. Defense counsel argued that Parks "did all that he could to comply" with his child support obligation and was "doing what he could to reestablish his practice." Defense counsel urged that Parks's child support payments be "adjusted." The circuit judge explained that he did not adjust child support obligations because, as a circuit judge presiding over criminal matters, he was not authorized to adjust support orders, which are subject to the authority of the family court. The circuit judge found defendant guilty as charged, stating that it was "obvious" that considering "the number of times Mr. Parks has refused to pay over the years, including the period of time in question here, ... Mr. Parks has no real desire to comply with what the law says he is supposed to do" and that "Mr. Parks simply does not want to pay."
At sentencing, Diane stated that it was "very difficult to raise three kids without support," that all three children "have been working since the age of 16 to help support the house and themselves," and that she was taking only half of her multiple sclerosis medicine "to cut back in whatever ways" she could. Alexis Parks, defendant's daughter, also made a statement, asking that Parks be incarcerated because "the only way he's ever paid is when he was in jail." Parks was ordered to pay restitution in the amount of $234,444.83 and sentenced to 5 years' probation and one year in jail with credit for 205 days served, which would be suspended if he paid a portion of the restitution.
Parks appealed by right, and on April 20, 2010, the Court of Appeals affirmed in an unpublished opinion per curiam.
We granted leave, with Likine and Harris, again to consider whether the rule of Adams is constitutional.
Defendant Scott Bennett Harris (Harris) and Lavonne Harris (Lavonne), divorced in November 2003. The Muskegon family court initially ordered Harris to pay $139 a month for his two children, and the amount was subsequently increased to $612 a month in 2006. Harris, who was living in Key West, Florida, was charged with felony nonsupport as a fourth-offense habitual offender for failing to pay his
On September 25, 2008, Harris pleaded guilty as charged in exchange for a fairly complex sentencing agreement pursuant to People v. Cobbs.
On December 8, 2008, Harris appeared before the circuit court for sentencing. At that time Harris had paid $1,500, roughly the amount of his ongoing child support payments, but he acknowledged that he had not paid any amount of the arrearage. His counsel argued that if Harris were permitted to remain free, Harris "would be able to raise a substantial sum." Defense counsel stated that defendant "want[ed] to try to comply," but that he was indigent, as evidenced by the court's having appointed counsel for him in the criminal proceeding. On allocution, defendant stated only that he had a back problem of 10 years' duration, and his lawyer added that Harris had "heart problems."
Lavonne asserted in her victim impact statement that Harris had told her on several occasions that she would "never see another dime from him regarding [the] two children." She recalled that defendant refused to provide any assistance with uncovered medical expenses when their son broke his hand and indicated that she could not afford to buy their son winter clothes because she could not "get any help from their father." She acknowledged that Harris had a back problem but was unaware that he had any heart problem. She stated: "He has an addiction problem to alcohol and drugs, is what he has. He has a problem with working." Harris was sentenced as a fourth-offense habitual offender to a prison term of 15 months to 15 years. The circuit court ordered costs and restitution of $12,781.39, the amount of the child support arrearage.
Through appointed counsel from the State Appellate Defender Office (SADO), Harris moved to withdraw his plea or for resentencing. At the hearing on August 10, 2009, the circuit court heard extensive argument, including Harris's claim that had he been permitted to do so, he would have testified that he had tried to generate income but could not because of his health conditions. The circuit court denied the motion in an opinion and order dated August 21, 2009. The circuit court stated that it was bound by Adams to apply MCL 750.165 as a strict-liability statute and that Harris also could not claim error based on the court's failure to consider his alleged indigency because Harris had agreed to the sentence agreement.
We granted leave in this case, with Likine and Parks, to consider whether the rule of Adams is constitutional.
These cases involve interpretation of a statute, a question of law that we review de novo on appeal.
All defendants argue that the circuit courts denied their constitutional right to due process when they refused to consider evidence of defendants' "inability to pay" as a defense to the charge of felony nonsupport. Only Likine explicitly equated her alleged inability to pay with a claim of impossibility.
To evaluate defendants' arguments, we must first consider the relevant statute, MCL 750.165.
In People v. Adams, the defendant father, charged with felony nonsupport under MCL 750.165, sought to introduce evidence of his inability to pay as a defense to the charge. The circuit court permitted the defense, but the Court of Appeals reversed, holding that inability to pay is not a defense to felony nonsupport. To reach this conclusion, the Court of Appeals compared the current statutory language of MCL 750.165 with the statute's language before its amendment in 1999.
Comparing the two versions of the statute, the Court of Appeals concluded that the current version of MCL 750.165, which did not have the language "shall refuse or neglect," contains no fault or intent element. Noting that the omission of language expressly requiring fault as an element did not end the court's inquiry, the Adams Court focused on whether the Legislature
Adams recognized that the current version of the statute imposes criminal liability regardless of intent with the goal of ensuring protection of the public welfare, stating: "Criminal nonsupport is the type of crime that generally falls within the class of crimes for which no criminal intent is necessary. A law that requires a parent to support his child benefits not only the child but also the well-being of the community at large."
We agree with the Court of Appeals' conclusion in Adams that MCL 750.165 imposes strict liability. Although strict-liability offenses are disfavored, there is no question that the Legislature may create such offenses without running afoul of constitutional concerns.
Concluding that MCL 750.165 is a strict-liability offense, however, does not end our analysis. The Adams Court only addressed the defense of inability to pay and did not address the common-law defense of impossibility, which if proven negates the actus reus of a crime.
A defendant might defend against a strict-liability crime by submitting proofs either that the act never occurred or that the defendant was not the wrongdoer. Additionally, at common law, a defendant could admit that he committed the act, but defend on the basis that the act was committed involuntarily.
MCL 750.165, however, criminalizes an omission, or a failure to act. At common law, an established defense to a crime of omission is impossibility.
The Queen's Bench, then, recognized impossibility of performance as a defense to a charge involving an omission.
Stated differently, a defendant cannot be held criminally liable for failing to perform an act that was impossible for the defendant to perform.
Michigan common law, which has its roots in the English common law, has also long recognized impossibility as a defense to crimes of omission. In Port Huron v. Jenkinson,
The Court specifically held that a legislative body cannot require a person to perform an act that "is impossible for him to perform" and then impose criminal penalties for the failure to perform that act.
The language of MCL 750.165 provides no indication that the Legislature intended to abrogate common-law impossibility as a defense to felony nonsupport.
Although English and Michigan common law both recognize that impossibility may be raised as a defense to a crime of omission, neither provides any particularized guidance regarding the quantum of evidence necessary to establish impossibility. These common-law cases establish impossibility as a defense in cases in which a defendant was genuinely unable to perform a legally required act or, as in the English case involving restoration of a road washed away by the sea, when compliance was physically impossible. However, "it is somewhat surprising to find that if impossibility in the modern context is examined more closely, its position is confused and its function unclear."
In considering the parameters of the impossibility defense, we find instructive the United States Supreme Court's decision in Bearden v. Georgia,
We recognize that the Court in Bearden dealt with probation revocation for nonpayment of a fine, as opposed to the felony nonsupport at issue in this case, but we are guided by the Court's reasoning, which inquires into and considers an individual's efforts to make a legally required payment. Thus, we hold that to establish an impossibility defense for felony nonsupport, a defendant must show that he or she acted in good faith and made all reasonable efforts to comply with the family court order, but could not do so through no fault of his or her own. In our view, "sufficient bona fide efforts to seek employment or borrow money in order to pay" certainly are expected, but standing alone will not necessarily establish an impossibility defense to a charge under MCL 750.165. Instead, defendants charged with felony nonsupport must make all reasonable efforts, and use all resources at their disposal, to comply with their support obligations. For the payment of child support to be truly impossible, a defendant must explore and eliminate all the reasonably possible, lawful avenues of obtaining the revenue required to comply with the support order. Defendants must not only establish that they cannot pay, but that theirs are among the exceptional cases in which it was not reasonably possible to obtain the resources to pay. A defendant's failure to undertake those efforts reflects "an insufficient concern for paying the debt"
To determine whether a defendant has established impossibility in the context of a felony nonsupport case, we provide, for illustrative purposes only, a nonexhaustive list of factors for courts to consider.
Having explored the substantive parameters of the impossibility defense, we turn to procedural considerations governing its invocation. To be entitled to a jury instruction on this affirmative defense,
Clearly, the record of the defendant's conduct and responses in the family court proceedings is relevant to determining the possibility of compliance with the support order and is relevant to evaluating the defendant's good-faith efforts. Consequently, and in addition to any other relevant evidence, both the defense and the prosecution may rely on the evidentiary record from the family court proceedings. For example, evidence that the defendant was not truthful in the family court proceeding or that the defendant hid assets, failed to provide accurate documentation of the resources and assets at his or her disposal, was voluntarily unemployed or underemployed, failed to exhaust all reasonable and lawful means of generating the income necessary to satisfy the support obligation, or failed to seek timely modification of the family court order when it became evident that it could not be performed may, singly or in combination, defeat any claim that it was impossible for the defendant to comply with the court order.
Given our description of how evidence from the family court proceedings may be used, we obviously disagree with the Attorney General's contention that the family court's determination of what amount a defendant is capable of paying precludes a defendant from asserting impossibility as a defense to felony nonsupport
In a criminal proceeding, the defendant has a constitutional right to have the prosecution prove his or her guilt beyond a reasonable doubt and to have a jury determine his or her guilt or innocence, as well as the merits of the impossibility defense, if applicable, in accordance with that standard of proof. These protections are fundamental to a defendant's right to a jury trial. As the Supreme Court stated in Stevenson v. United States:
Indeed, "the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies"
In this case, Likine raised and preserved the impossibility defense in the circuit court. Accordingly, we review this preserved claim of constitutional error to determine whether the party benefitting from the error has established that it is harmless beyond a reasonable doubt.
The evidence that Likine sought to introduce, which the circuit court did not allow, relates to her mental illness, incapacitation, and disability. This evidence — if submitted to, and believed by, a jury — might establish impossibility. Under the circumstances, and on the current undeveloped state of the record, we cannot conclude that the error was harmless beyond a reasonable doubt. We therefore reverse the judgment of the Court of Appeals in this case and remand Likine to the circuit court for a new trial.
Parks neither asserted nor sought to assert an impossibility defense at his criminal trial for felony nonsupport. He asserted for the first time in the Court of Appeals that his inability to pay was a defense to the charge of felony nonsupport, and although he cited caselaw recognizing impossibility as a common-law defense, he failed to clearly assert an impossibility defense at his trial. Accordingly, we review this unpreserved claim of constitutional error for plain error affecting a substantial right.
Harris entered an unconditional guilty plea to the charge of felony nonsupport under MCL 750.165. An unconditional guilty plea that is knowing and intelligent waives claims of error on appeal, even claims of constitutional dimension.
The dissent endorses an "inability to pay" defense to felony nonsupport and suggests that the impossibility defense we have recognized is "problematic" and
Additionally, the dissent agrees that MCL 750.165 is a strict-liability offense. Yet the dissent would return the law of Michigan to the precise state that existed before the Legislature amended MCL 750.165 and made felony nonsupport a strict-liability offense, contrary to the Legislature's clear intent.
After this flawed legal analysis, the dissent posits what appears to be its primary objection to this opinion: its claim that our impossibility standard "offends traditional notions of fairness and common sense."
Unlike the dissent, our view of the question of parental responsibility and obligation leads us to endorse the impossibility defense to a charge of felony nonsupport. Our impossibility defense differs from the dissent's approach because we provide guidance regarding how the defense is to be adjudicated at the circuit court level, and although a parent's ability to pay is one factor that we consider, we also consider other factors. In sum, the ability-to-pay inquiry is subsumed within the impossibility defense. Our interpretation is consistent with centuries-old common law and with the plain language of MCL 750.165, Michigan's nonsupport statute.
We conclude that People v. Adams correctly held that MCL 750.165 imposes strict liability because it does not require a mens rea, and that evidence of a defendant's inability to pay, without more, is not a valid defense to a charge of felony nonsupport. However, we hold that a defendant charged with felony nonsupport may, in exceptional circumstances, on making the requisite evidentiary showing, establish impossibility as a defense to a charge of felony nonsupport.
In summary, having concluded that Likine preserved this claim of constitutional error and that the prosecution has not shown that the error was harmless, we reverse her conviction and remand the case to the circuit court for further proceedings. Because we conclude that Parks is not entitled to relief, we affirm the
YOUNG, C.J., and MARKMAN and ZAHRA, JJ., concurred with MARY BETH KELLY, J.
MARILYN J. KELLY, J. (dissenting).
The majority advises that its view of parental responsibility and obligations leads it to adopt a new defense to the charge of felony nonsupport, the defense of impossibility to pay. I share the majority's view of the responsibilities and obligations of parents. But there is an important difference between us. It lies in our respective interpretations of what defense MCL 750.165 allows a parent facing imprisonment for failing to pay child or spousal support. For reasons I will describe, I believe that the interests of children, as well as of all other members of society, are best served by providing a more traditional defense. I propose the almost universally accepted defense of inability to pay.
At their essence, these cases are about the basic judicial task of ensuring that government functions within the scope of our state and federal constitutions. Our sister states have been conscientious in undertaking this task. Forty-nine of them and the District of Columbia provide the defense of inability to pay or consider a defendant's ability to pay as an element of the crime of felony nonsupport. Conventional wisdom suggests that the Michigan Supreme Court should adopt the same defense when it considers the question for the first time. It has not done so.
Instead, the majority rejects the national norm and bucks the trend. It concludes that inability to pay does not constitute a defense to felony nonsupport. The defendant must demonstrate impossibility to pay. Moreover, notwithstanding the majority's protestations to the contrary, the inability-to-pay defense is not subsumed within this defense of impossibility to pay. The majority will indeed consider inability to pay. But should any fault whatsoever be shown on the part of the accused, the majority's impossibility-to-pay defense will entirely disregard the strongest evidence of inability to pay. I believe that this standard, at once unique and manifestly harsh, will prove counterproductive. I also believe it is unconstitutional.
Like the majority, I wish to be faithful to the intent of the Legislature in interpreting MCL 750.165. In doing so, I am deeply concerned that we will reinstitute the wisely long-abandoned institution of debtor's prisons. The majority appears to lack this concern.
Furthermore, the majority's "analysis" supporting its impossibility-to-pay defense is flawed from the first page. In crafting it, the majority repeatedly bows to what it declares is the Legislature's expressed intent. But no expressed justification for the majority's position is to be found anywhere in any statute. For all of these reasons, I respectfully dissent.
These cases involve the failure of three defendants to satisfy court-ordered child support obligations. MCL 750.165 criminalizes such conduct.
Although I agree with the majority that MCL 750.165 sets forth a strict liability offense, persons accused of felony nonsupport still have the constitutionally guaranteed right, both state and federal, to present a defense.
Thirty-five years ago in People v. Ditton,
The Court also noted that in contempt proceedings, a party charged with paying child support must be allowed to explain why the support order had not been obeyed and that only "`the wilful, the recalcitrant, the obdurate or deceitful' ... are not excused from their legal obligations."
The version of MCL 750.165 now in effect was enacted in 1999
When the Legislature enacted the current version of MCL 750.165, Ditton had permitted defendants to raise an inability-to-pay defense to felony nonsupport charges for the preceding 22 years. Yet that defense was not addressed by 1999 PA 152.
Notwithstanding that fact, in People v. Adams,
I find the impossibility-to-pay defense adopted by the majority problematic for several reasons. First, the term "impossibility" has a distinct meaning in criminal law. Courts have distinguished two categories of impossibility in attempt crimes: factual and legal. Factual impossibility exists when a defendant intended to perpetrate a certain crime but failed to commit it because of factual circumstances that were unknown or beyond his or her control.
Legal impossibility can be broken down into two subcategories: pure legal impossibility and hybrid legal impossibility. Pure legal impossibility exists when an actor engages in conduct that he or she believes is prohibited by law, but it is not.
The cases involved here are not attempt crimes. Moreover, neither factual nor legal impossibility is involved. I discuss the terms merely to show that their use has a nuanced meaning in criminal law. They could easily be confused with the majority's newly minted "impossibility-to-pay" defense in the context of felony nonsupport charges.
Thus, Jenkinson recognized that when a defendant is "so poor and indigent" as to be unable to comply with the ordinance, he or she may not be criminally punished. Accordingly, even though Jenkinson used the word "impossible" once, it implicitly considered the defendant's inability to pay.
It is apparent that the majority overstates Jenkinson's use of "impossible." Jenkinson intended a much broader use of the word, one akin to inability to pay. If it had been shown that the defendant in Jenkinson could have used the "support from his charitable neighbors"
The proper defense to felony nonsupport charges, as set forth in Ditton, consists of proving that a defendant is unable to pay the court-ordered support.
Ability-to-pay assessments are also relevant in the context of criminal restitution payments. In People v. Music,
Not only does caselaw suggest that a defendant's ability to pay must be considered
Thus, a conviction under MCL 750.161 presupposes that the defendant has the ability to pay for proper shelter, food, care, and clothing for family members.
Similarly, MCL 750.168 provides that a person convicted of being "a disorderly person" is subject to varying degrees of punishment. MCL 750.167(1)(a) defines "disorderly person" as "[a] person of sufficient ability who refuses or neglects to support his or her family."
Ability-to-pay determinations also serve as the underpinning of spousal support awards, which, when violated, form the bases of criminal nonsupport charges. MCL 552.23(1) provides that in divorce and actions for separate maintenance, the court may also award spousal support "after considering the ability of either party to pay...."
The United States Supreme Court has also recognized that statutes that punish persons for nonpayment of debts without permitting them to present evidence of their inability to pay are repugnant to the Constitution. In Zablocki v. Redhail,
Concurring in the Court's judgment, Justice Powell distinguished between "persons who are able to make the required support payments but simply wish to shirk their moral and legal obligation" and those "without the means to comply with child-support obligations."
Likewise, in Bearden v. Georgia,
In light of the aforementioned Michigan caselaw, Michigan statutes, and United States Supreme Court precedent, I would hold that inability to pay is the proper defense to a felony nonsupport charge. To use this defense, a defendant would have to show that he or she has made all reasonable and good-faith efforts to comply with the support order, but could not.
To be clear, I share the majority's concern that recalcitrant parents must be held accountable. Accordingly, the inability-to-pay defense, like the impossibility-to-pay defense set forth by the majority, would not apply to parents who can but choose not to take care of their children. A willful failure to pay is not an excuse for noncompliance with a support order.
With today's groundbreaking opinion, Michigan becomes the only state that does not allow a defendant's inability to pay to constitute a complete defense to a felony nonsupport charge.
My deep concern about the majority's holding stems not only from the fact that it adopts an unprecedented standard without support, but also from that standard's potential for deleterious effects. More pointedly, I fear a return to an era of debtors' prisons in which indigent individuals are imprisoned simply because they cannot meet their financial obligations.
In its effort to differentiate its impossibility-to-pay defense from an inability-to-pay defense, the majority paints a picture in which the only two options are at the extreme ends of the spectrum. On one end is the impossibility-to-pay defense, which is, as the majority admits, nearly impossible to meet. On the other is the inability-to-pay defense, which the majority mischaracterizes as cover for a simple refusal to pay. The majority mistakenly casts the inability-to-pay defense as one that gives carte blanche to cold-hearted parents who refuse to support their children, contrary to all moral decency. The reality is quite otherwise. As discussed earlier, in applying this defense, a court typically considers evidence of ability to pay and refusals to pay by those who could pay or could raise the money they owe.
The majority also identifies the most extreme example of a parent who would find it impossible to comply with a support obligation but is completely blameless. It posterizes this hypothetical person as the quintessential example of someone who would satisfy its new impossibility-to-pay defense. In doing so, the majority sends a clear signal to our lower courts: our impossibility-to-pay defense exists, but only the rarest of persons will qualify for it.
In an effort to provide comprehensive guidance, the majority creates an impossibility standard that offends traditional notions of fairness and common sense. For example, it does not take into consideration that a defendant must have sufficient minimum resources to feed, clothe, and shelter himself or herself while satisfying a support obligation. The penniless person should not be imprisoned for lacking the capacity to prioritize his or her finances or to arrange his or her financial affairs with future contingencies in mind. Yet the majority's impossibility-to-pay defense would include that person. That person would be imprisoned because, although he or she is unable to pay, it might not have been utterly impossible to pay had he or she known how to manage money better.
Furthermore, the majority seems not to consider the difficulty in producing sufficient evidence to mount a cognizable impossibility-to-pay defense. Proving an inability to pay, let alone satisfying the majority's impossibility-to-pay defense, is a complex and daunting legal matter. As one scholar has astutely observed:
Permitting only an impossibility-to-pay defense rather than an inability-to-pay defense heightens the level of evidence needed to refute a nonsupport charge. In a practical sense, it erects a barrier that will prove overwhelming to many who are not willful, recalcitrant, obdurate, or deceitful.
Finally, the majority supports its impossibility-to-pay defense by suggesting that because family courts consider ability to pay when setting support obligations, by definition a support obligor is able to pay. There is much to criticize in this logic. It must be remembered that, because family court proceedings are civil in nature, they do not require the same high level of due process as criminal proceedings. They lack certain fundamental constitutional safeguards, including the right to trial by jury, the beyond-a-reasonable-doubt standard of proof, the right to counsel, and the right to effective assistance of counsel.
But it is axiomatic that all elements of a criminal charge must be proved beyond a reasonable doubt.
Furthermore, the majority injects principles of statutory interpretation as support for its impossibility-to-pay defense. It repeats throughout its opinion phrases such as "[c]onsistent[] with the Legislature's expressed intent in the child support statutes"
More importantly, the Legislature's intent with respect to the constitutionally mandated defense to a charge of felony nonsupport is extraneous. It is undisputed that some defense must be made available for MCL 750.165 to survive constitutional scrutiny. However, it is not the prerogative of the Legislature to set that constitutional floor. Rather, it is this Court's duty to determine what defense, at a minimum, must be made available in order for the statute to be constitutionally applied. By allowing the purported legislative intent to dictate its outcome, the majority abdicates its duty as guardian of our citizens' constitutional protections.
In sum, the majority's new impossibility-to-pay defense creates a nearly insurmountable barrier to successfully defending felony nonsupport charges. As Michigan has long recognized, it is only "the willful, the recalcitrant, the obdurate or deceitful" who are imprisoned for failing to meet their financial obligations.
MICHAEL F. CAVANAGH and HATHAWAY, JJ., concurred with MARILYN J. KELLY, J.
Moreover,
To provide an illustration of an extreme example, in our view, a person who was unexpectedly hospitalized or underwent emergency surgery may be able to meet the exacting standard of the impossibility defense if, through no fault of that person's own, he or she could not physically or financially make the court-ordered support payment. See Williams, Criminal Law, § 240, p. 747 (discussing physical impossibility). We underscore, however, that this must involve some element of unexpectedness and circumstances beyond the defendant's control that make it truly impossible to meet the support obligation. Thus, one who, knowing that he or she is about to undergo major surgery that may have debilitating consequences, nevertheless takes no steps to ensure that a known support obligation is met during a period of convalescence will be situated differently from one who is suddenly injured or unexpectedly incapacitated. See, e.g., Bamber, 5 Q.B. at 287 (referring to an "act of God" causing encroachment by the sea). What will be sufficient to establish impossibility in a given case will depend on the individual circumstances of the particular defendant, but passivity, neglect, or failure to plan for parental financial obligations will not excuse neglected parental responsibility.
We note that this statute enumerates factors for rebutting the willfulness element contained in that statute that are similar to those we set forth in our decision today. It is also apparent that at least two states referred to in the footnote actually recognize what is more accurately characterized as an impossibility defense like the one we recognize today. See Painter, 140 Va. 459, 124 S.E. 431; see also Epp v. State, 107 Nev. 510, 514, 814 P.2d 1011 (1991) (stating, in language strikingly similar to that used in Jenkinson, "[o]bviously, `the law does not contemplate punishing a person for failing to do a thing which he cannot do'") (citation omitted).
Further, the dissent includes within the footnote states that do not specifically recognize an inability-to-pay defense, but instead consider a parent's ability to pay within the criminal proceeding. This is not the same as a defense of inability to pay. See Cal. Penal Code 270 (specifically considering, in language cited by the dissent, parents' income and also whether the act or omission "is willful and without lawful excuse"); Elam v. State, 138 Ga.App. 432, 432, 226 S.E.2d 290 (1976) (considering "evidence as to [defendant's] financial condition which tended to negate the element of wilfulness"); Mass. Gen. Laws ch. 273, § 1(4) (providing that a parent is guilty of a felony for failing to comply with a child-support order or judgment "wilfully and while having the financial ability or earning capacity to have complied").
Other states explicitly include ability to pay, or willful failure to pay, as an element of the offense. Again, this is not the same as an inability-to-pay defense. Representative states mentioned in the footnote that do not explicitly recognize an inability-to-pay defense but include an element of willfulness or knowledge and also consider ability to pay as part of the criminal charge are Ala. Code 13A-13-4 (imposing liability for "intentionally fail[ing] to provide support which that person is able to provide"); Alas. Stat. 11.51.120(a) (imposing liability for a "knowing[] fail[ure], without lawful excuse, to provide support for the child"); Nelke v. State, 19 Ark.App. 292, 294, 720 S.W.2d 719 (1986) (stating that "[i]n order to make out the offense, the State must show a willful or negligent failure to provide, not a mere failure because of inability" and noting other states' holdings that "the inability to pay cannot be brought about intentionally and willfully by the defaulting parent") (citations omitted); Fla. Stat. 827.06(2) (imposing liability on "[a]ny person who willfully fails to provide support which he or she has the ability to provide"); Elam, 138 Ga.App. at 432, 226 S.E.2d 290 (noting the statutory requirement that the act "be done `wilfully and voluntarily'" to support the imposition of liability); Hawaii Rev. Stat. 709-903(a) (imposing liability when a "person knowingly and persistently fails to provide support which the person can provide"); State v. Krumroy, 22 Kan.App.2d 794, 800, 923 P.2d 1044 (1996) (considering Kan. Stat. Ann. 21-3605 and noting that "[t]he issue of whether Krumroy failed to support his child without lawful excuse or without just cause is broader than determining whether he had sufficient income to provide support"); Md. Code Ann., Fam. Law 10-203(a) (stating that "[a] parent may not willfully fail to provide for the support of his or her minor child"); Miss. Code Ann. 97-5-3 (imposing felony liability for "[a]ny parent who shall desert or wilfully neglect or refuse to provide for the support and maintenance of his or her child or children"); N.H. Rev. Stat. Ann. 639:4 (stating that "[a] person is guilty of non-support if such person knowingly fails to provide support ... which such person can provide"); N.J. Stat. Ann. 2C:24-5 (providing for criminal liability for a person who "willfully fails to provide support which he can provide and which he knows he is legally obliged to provide"); N.Y. Penal Law 260.05(1) (providing for criminal liability for nonsupport for a person who "fails or refuses without lawful excuse to provide support for such child when he or she is able to do so"); State v. McMillan, 10 N.C. App. 734, 735-736, 180 S.E.2d 35 (1971) (stating that "`the failure by a defendant to provide adequate support for his child must be wilful, that is, he intentionally and without just cause or excuse does not provide adequate support for his child according to his means and station in life, and this essential element of the offense must be alleged and proved'") (citation omitted); Okla. Stat. tit. 21, § 852 (imposing criminal liability for a parent who "willfully omits, without lawful excuse, to furnish ... child support"). Clearly, consideration of a parent's ability to pay, or legislative prescription of ability to pay as an element of the offense, does not equate to providing an inability-to-pay defense. An element of ability to pay, as part of the criminal charge itself, is not the same as an affirmative defense, whether based on an inability to pay or something else.
The Underground Economy Task Force report details the strain this serious social problem places on children and the public, concluding:
These considerations, which are completely ignored by the dissent, make clear that the Legislature's decision to define felony nonsupport as a strict-liability crime was perfectly reasonable and that there is nothing remotely offensive to "traditional notions of fairness and common sense" in the Legislature's decision or in this Court's exacting impossibility defense.
Assuming that public policy is relevant, the majority's discussion raises unanswered questions. For instance, does the majority consider the high cost borne by taxpayers for imprisoning felons? Does it consider how those costs will increase to the extent we imprison a greater number of those who fail to make support payments? A recent Pew Center report shows that Michigan already has one of the nation's highest incarceration rates and is one of only four states to spend more on prisons than higher education. The Pew Center on the States, Time served: The high cost, low return of longer prison terms. June 2012. Available at: <http://www.pewstates.org/uploadedFiles/PCS_Assets/2012/Prison_Time_Served.pdf> (accessed July 3, 2012); see also State of Michigan, Executive Budget, Fiscal Years 2013 and 2014, pp. A-5, B-15. February 9, 2012. Available at: <http://www.michigan.gov/documents/budget/EB1_376247_7.pdf> (accessed July 3, 2012). Furthermore, it is estimated that Michigan will spend more than $37,000.00 per inmate per year housed in its prisons during 2013 and 2014. Id. at B-15. Does the majority weigh the opportunity cost to society when those imprisoned cannot earn wages and make some contribution toward a support obligation? Does it consider the dismantling of family bonds that results from imprisoning a delinquent parent who would otherwise still provide emotional support, love, or care to his or her family?
