November 28, 2006, Introduced by Reps. Brandenburg and Pastor and referred to the Committee on Appropriations.
A bill to amend 1935 PA 253, entitled
"The state correctional facility reimbursement act,"
by amending the title and sections 1a, 1b, 3, 3a, 4, 4a, 4b, 5, and
6 (MCL 800.401a, 800.401b, 800.403, 800.403a, 800.404, 800.404a,
800.404b, 800.405, and 800.406), the title and sections 3, 4, 4a,
4b, 5, and 6 as amended and sections 1b and 3a as added by 1984 PA
282 and section 1a as amended by 1996 PA 286, and by adding section
5a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to provide procedures for securing reimbursement to the
state of the expenses incurred by the state for the cost of care of
certain prisoners in state correctional facilities; to provide
procedures for securing the reimbursement of expenses to be
incurred
by the state in regard to the future cost of care of such
those prisoners; to create certain funds; and to prescribe certain
powers and duties of certain state and local public officers and
officials.
Sec. 1a. As used in this act:
(a) "Assets" means all property, tangible or intangible, real
or
personal, belonging that belongs to or is due
a prisoner or
former prisoner, or that is held for the benefit of or on behalf of
a prisoner, including, but not limited to, income or payments to
such
a prisoner or
former prisoner from social security,
worker's
compensation, veteran's compensation, pension benefits, previously
earned salary or wages, bonuses, annuities, retirement benefits, a
financial settlement, devise, inheritance, bequest, court award,
insurance benefits payable or accruing to a prisoner or former
prisoner, or from any other source whatsoever, but does not include
any of the following:
(i) The homestead of the prisoner up to $50,000.00 in value.
(ii) Money Up
to $1,500.00 saved by the prisoner from
wages
and bonuses paid the prisoner while he or she was confined to a
state correctional facility.
(b) "Cost of care" means the cost to the department for
providing transportation, room, board, clothing, security, medical,
and other normal living expenses of prisoners, and the cost to the
department for providing college-level classes or programs to
prisoners, as determined by the department.
(c)
"Department" means the department of corrections. of
this
state.
(d) "Director" means the director of the department.
(e) "Prisoner" means any person who is under the jurisdiction
of
the department and is either confined in any a state
correctional facility or is under the continuing jurisdiction of
the department.
(f) "State correctional facility" means a facility or
institution which
that houses a prisoner population under the
jurisdiction of the department. State correctional facility
includes a correctional camp, community correction center, state
prison, and a state reformatory.
Sec.
1b. (1) The department shall develop a form which that
shall be used by the department to obtain information from all
prisoners regarding assets of the prisoners. The form may require
the prisoner to submit any information the department considers
pertinent to an investigation of a prisoner's assets, including
requiring the prisoner's written authorization to obtain the
prisoner's confidential tax information held by the United States
internal revenue service.
(2)
Upon being developed, the The
form shall be submitted to
each
person who is a prisoner as of the date the form is
developed
and
to every person who thereafter is sentenced to
imprisonment
under the jurisdiction of the department. The form may be
resubmitted to a prisoner by the department for purposes of
obtaining current information regarding assets of the prisoner.
(2) (3)
Every prisoner shall complete the form or provide
for
completion of the form and the prisoner shall swear or affirm
under oath that to the best of his or her knowledge the information
provided is complete and accurate.
(4)
The department shall have developed the form provided for
under
this section not later than 30 days after the effective date
of
this section.
Sec. 3. (1) The attorney general shall investigate or cause to
be investigated all reports furnished under section 2.
(2)
If the attorney general upon completing the investigation
under
subsection (1) has good cause to believe that a prisoner has
sufficient
assets to recover not less than 10% of the estimated
cost
of care of the prisoner or 10% of the estimated cost of care
of
the prisoner for 2 years, whichever is less believes it is in
the
public interest, the attorney general shall
may seek to
secure reimbursement for the expense of the state of Michigan for
the cost of care of that prisoner.
(3) Not more than 90% of the value of the assets of the
prisoner may be used for purposes of securing costs and
reimbursement under this act.
Sec. 3a. (1) A prisoner shall fully cooperate with the state
by providing complete financial information for purposes under this
act. If a prisoner, or a person on behalf of a prisoner, files an
action or files an administrative action with an administrative
agency of state, local, or federal government, or agrees to any
type of alternative dispute resolution, the attorney for the
prisoner or the person acting on behalf of the prisoner shall serve
the warden of the correctional facility to which the prisoner is
currently confined and the attorney general, by certified mail,
with a copy of the summons and complaint, petition, or other
pleading initiating the action.
(2) The failure of a prisoner to fully cooperate as provided
in subsection (1) may be considered for purposes of a parole
determination
under section 35 of Act No. 232 of the Public Acts
of
1953, being section 791.235 of the Michigan Compiled Laws the
corrections code of 1953, 1953 PA 232, MCL 791.235, and may be
considered as the basis for other disciplinary measures as
determined by the department of corrections.
Sec.
4. (1) The circuit court shall have has exclusive
jurisdiction over all proceedings under this act. The attorney
general
may file a complaint in the circuit court for in Ingham
county
or in the county from
in which the prisoner is
housed, or
any
1 of the counties in which a
the prisoner was sentenced,
stating that the person is or has been a prisoner in a state
correctional facility, that there is good cause to believe that the
prisoner
has assets, and praying asking that the assets be
used
to reimburse the state for the expenses incurred or to be incurred,
or both, by the state for the cost of care of the person as a
prisoner. The attorney general is exempt from paying a filing fee
when bringing an action under this act.
(2) Upon the filing of the complaint under subsection (1), the
court
shall issue an order to show cause why the prayer request
of the complainant should not be granted. The complaint and order
shall be served upon the prisoner personally or, if the prisoner is
confined in a state correctional facility, by registered mail
addressed to the prisoner in care of the chief administrator of the
state correctional facility where the prisoner is housed, at least
30 days before the date of hearing on the complaint and order.
(3) At the time of the hearing on the complaint and order, if
it appears that the prisoner has any assets which ought to be
subjected to the claim of the state under this act, the court shall
issue an order requiring any person, corporation, or other legal
entity possessed
or having that possesses or
has custody of those
assets
to appropriate and apply the assets or a portion thereof
of
the assets toward reimbursing the state
as provided for under
this act.
(4) The amount of reimbursement under this act shall not be in
excess of the per capita cost of care for maintaining prisoners in
the state correctional facility in which the prisoner is housed.
(5) At the hearing on the complaint and order and before
entering any order on behalf of the state against the defendant,
the court shall take into consideration any legal obligation of the
defendant to support a spouse, minor children, or other legal
dependents. and
any moral obligation to support dependents to whom
the
defendant is providing or has in fact provided support.
(6)
If the person, corporation, or other legal entity shall
neglect
or refuse to does not comply with an order under
subsection (3), the court shall order the person, corporation, or
other
legal entity to appear before the court at such a time as
specified
by the court may
direct and to show cause why the
person, corporation, or other legal entity should not be considered
in contempt of court.
(7) If, in the opinion of the court, the assets of the
prisoner are sufficient to pay the cost of the proceedings under
this
act, the assets shall be are liable for those costs
upon
order of the court.
(8) The state may recover the expenses incurred or to be
incurred, or both, by the state for the cost of care of the
prisoner during the entire period or periods the person is a
prisoner in a state correctional facility. The state may commence
proceedings under this act until the prisoner has been finally
discharged on the sentence and is no longer under the jurisdiction
of the department.
Sec. 4a. (1) Except as provided in subsection (3), in seeking
to secure reimbursement under this act, the attorney general may
use any remedy, interim order, or enforcement procedure allowed by
law or court rule including an ex parte restraining order to
restrain the prisoner or any other person or legal entity in
possession or having custody of the estate of the prisoner from
disposing of certain property pending a hearing on an order to show
cause why the particular property should not be applied to
reimburse
the state as provided for under this act.
(2) To
Upon request of the attorney
general or a prosecuting
attorney, the court shall appoint a receiver or enter an ex parte
restraining order, or both, to protect and maintain assets pending
resolution
of an action under this act. , the court, upon request,
may
appoint a receiver.
(3) The attorney general or a prosecuting attorney shall not
enforce any judgment obtained under this act by means of execution
against the homestead of the prisoner.
Sec.
4b. (1) The attorney general of this state shall
enforce the
provisions of this act except that the attorney
general may request the prosecuting attorney of the county in which
the prisoner was sentenced or the prosecuting attorney of the
county in which any asset of a prisoner is located to make an
investigation or assist in legal proceedings under this act.
(2) The attorney general shall not seek reimbursement under
this act for the cost of care of a prisoner while he or she was in
a work camp if the department is being or has been fully reimbursed
for
those costs by the prisoner pursuant to section 65c of Act
No.
232
of the Public Acts of 1953, being section 791.265c of the
Michigan
Compiled Laws the
corrections code of 1953, 1953 PA 232,
MCL 791.265c.
Sec. 5. (1) The sentencing judge, the sheriff of the county,
the chief administrator of the state correctional facility, and the
department of treasury shall furnish to the attorney general or
prosecuting attorney all information and assistance possible to
enable the attorney general or prosecuting attorney to secure
reimbursement for the state under this act.
(2) The attorney general or an appointed agent of the attorney
general may issue an administrative subpoena under this section for
purposes of an investigation under this act. The attorney general
or the attorney general's appointed agent may examine the books,
records, and the papers relating to the matter of securing
reimbursement under this act of any prisoner who is under the
jurisdiction of the department of corrections, or any person who is
believed to be holding assets belonging to or owed to a prisoner,
or any person who is believed to be or is acting on behalf of a
prisoner. The attorney general or the appointed agent may issue a
subpoena requiring a person to appear and be examined with
reference to a matter within the scope of the inquiry or
investigation being conducted by the department and to produce any
books, records, or papers. The attorney general or appointed agent
may administer an oath to a witness in any matter within the scope
of the inquiry or investigation being conducted by the department.
The department may invoke the aid of the circuit court in requiring
the attendance and testimony of witnesses and the producing of
books, papers, and documents. The circuit court in the county in
which an action under this act is maintained, in case of contumacy
or refusal to obey a subpoena, may issue an order requiring the
person to appear before the department and produce books and papers
if so ordered and any evidence relating to the matter in question.
The failure to obey a court order issued under this subsection may
be punished by the court as contempt. A person who is ordered by
the attorney general to testify or to produce any books, papers,
records, or memoranda in any investigation or hearing is not
excused from testifying or producing those items upon the ground
that the testimony or evidence, documentary or otherwise, may tend
to incriminate him or her or subject him or her to a criminal
penalty. However, a person shall not be prosecuted or subjected to
any criminal penalty because of any transaction made or thing
concerning which he or she may testify or produce evidence,
documentary or otherwise, before the department or its agent. A
person testifying is not exempt from prosecution and punishment for
perjury committed while testifying.
Sec. 5a. (1) The state correctional facilities reimbursement
fund is established in the state treasury. Except as otherwise
provided in section 6, the state treasurer shall credit money
collected under this act to the reimbursement fund. The money in
the reimbursement fund shall be expended only for purposes set
forth in section 6.
(2) The state treasurer shall direct the investment of the
reimbursement fund and all interest earnings from the reimbursement
fund shall be credited to the correctional facilities reimbursement
fund.
(3) The unencumbered balance in the correctional facilities
reimbursement fund at the close of the fiscal year shall remain in
the reimbursement fund and shall not revert to the general fund.
Sec.
6. (1) The costs of any investigations and the cost of
the prosecution or defense of a case arising under or with respect
to this act shall be paid from the reimbursements secured under
this
act. , and the balance of the reimbursements shall be
credited
to the general fund of the state to be available for
general
fund purposes. The attorney
general may also expend
reimbursements secured under this act for the defense of litigation
against the state, its departments, boards, commissions, officers,
or employees in other civil actions filed by prisoners.
(2) The department of treasury may determine the amount due
the
state in cases under this act and render statements thereof
of
those amounts, and such
those sworn statements shall be
considered prima facie evidence of the amount due.