People of Michigan v. Selesa Arrosieur Likine

People v Likine 367 PEOPLE v LIKINE PEOPLE v PARKS PEOPLE v HARRIS 141154, 141181, Argued 6, Docket Nos. and 141513. October 2011 (Calendar 4). 2, 3, July Nos. and Decided 2012. by jury Selesa A. Likine was convicted a in the Oakland Circuit Court failing pay support to child violation of and MCL 750.165 year probation. court, McDonald, sentenced one to J. John J., granted prosecution’s preclude had motion limine to offering any alleged inability Likine pay from evidence of her to support People Adams, the ordered child App under 262 Mich 89 (2004), failing pay which held that to child is a strict- liability pay to crime which to a defense. her After conviction, Likine granting moved for reconsideration of order limine, conviction, the motion in for relief from the and for a new trial, arguing that MCL 750.165 was unconstitutional and that preventing presenting inability-to-pay her from vio- defense right process. motions, lated her to due The court denied the and appealed. Appeals, Likine EJ., The Court of and Fitzgerald, Cavanagh JJ., affirmed, App (2010), and and Davis, Supreme granted application Court Likine’s for leave to (2010). appeal, Mich violating Michael J. Parks was convicted of MCL after 750.165 a bench Ingham Court, J., Collette, failing trial in the Circuit William E. for child and between 2006 2008. He ordered was years’ probation year jail, restitution and sentenced to one five suspended paid portion which would be if he of the restitution. In support obligation the amount of Parks’s child had been raised imputed $230 week $761 from a week on the basis of an income given high that Parks testified at trial too was the nature his practice, probation conditions, disability, medical physical his and his requests modify but his the amount had been denied. The Court of EJ., Appeals, JJ., Sawyer affirmed his Owens, O’Connell, unpublished conviction and sentence on the basis of Adams in an (Docket April 20,2010 opinion, 291011), Supreme issued No. and the granted application appeal, Court Parks’s leave Mich (2010). 492 Mich 367 Court, Muskegon guilty pleaded in the Circuit Harris

Scott B. violating Hicks, J., 750.165 Timothy MCL G. support. as a fourth- failing Harris was sentenced child 769.12, years’ offender, to 15 to 15 months’ habitual MCL offense delay agreed imposing imprisonment, to for the court which pay arrearage approximately Harris could the months so that two date, by appointed so the the Harris had not done amount. When imprisonment. imposed Harris moved to sentence of court the resentencing, claiming plea he had tried that withdraw his or for generate his health conditions. but could not because of to income stating motion, that it was bound Adams The denied the strict-liability The Court of apply MCL as a statute. to 750.165 delayed application appeal Appeals for for leave to denied Harris’s merit, granted application Supreme Court Harris’s lack of and the (2010). appeal. 488 Mich for leave to joined by opinion by Chief In an Justice Mary Kelly, Beth Supreme Young the Justice and Justices Zahra, Markman Court held-. liability failing imposes to child MCL strict 750.165 pay, a support, of defendant’s to without and evidence charge felony more, nonsupport under not a valid defense to a of is However, charged felony nonsup- provision. a with that defendant circumstances, making requisite port may, exceptional the in on evidentiary impossibility showing, as a establish defense. provides if a an individual to that court orders 1. MCL 750.165 pay support her and the does not the for his or child individual guilty felony. support, Before the is of its amendment individual penalized only MCL those who refused or 750.165 Legislature’s neglected pay support. Followingthe deletion to child relating nothing language neglect, refusal or to wording supports a of MCL 750.165 con- of current version fault, intent, or rea element. struction that would include a mens generally Further, nonsupport type crime criminal is the that of crimes for which no criminal intent falls within class only necessary also it not the child but because benefits community large. Accordingly, properly well-beingof the at Adams imposes liability. held that MCL strict 750.165 Generally, requires of a crime both an actus 2. the commission strict-liability crime, wrongful act, reus, A and a mens rea. element, felony only including nonsupport, includes mens rea no proved, impossibility,if an reus. The common-lawdefense of actus negates crime of is an established defense to a omission penal- Like defense crimes actus reus. the involuntariness act, impossibility crimes that ize the defense an affirmative Likine penalize something an act of be omission must based on outside genuinely impossible control. it is defendant’s When for a law, discharge duty imposed by defendant the defendant’s failure is excused. language provides 3. MCL no 750.165 indication that Legislature abrogate impossibility intended to common-law as felony nonsupport. Accordingly, genuine impossibility a defense to charge felony nonsupport ais defense to the under MCL 750.165 supported by impossibility if sufficient evidence. To establish felony nonsupport, defense for a defendant must show that he or good she acted in faith all comply and made reasonable efforts to order, through with but not could do so no fault of his employment or her own. Sufficient bona efforts fide to seek money expected, standing

borrow order are but alone will necessarily impossibility establish an defense charged under MCL 750.165. Defendants with must make all reasonable efforts and use all resources at their disposal comply support obligations. payment their For the truly impossible, of child to be a defendant must have explored reasonably possible, and eliminated all the lawful av- obtaining required enues of comply the revenue with the support only they order. Defendants must not establish that pay, among exceptional cannot but theirs are the cases reasonably possible which it pay. was not to obtain the resources to 4. To determine impossi- whether a defendant has established bility case, felony nonsupport in the of context a courts should consider diligently sought whether the employ- defendant has ment; whether employment, the defendant secure can additional job; such as a second whether the defendant has investments that liquidated; can be whether the defendant has received substantial gifts inheritance; or an whether the defendant owns a home that refinanced; be can whether the defendant has assets that can be collateral; prioritized sold used as loan whether the defendant payment support purchase nonessential, the of child the over of luxury, items; extravagant or otherwise and whether the defen- precautions guard against dant has taken reasonable to financial arranged misfortune and has his or her financial affairs with contingencies factors, however, future This list mind. of is not unexplored possibilities generat- exhaustive. The existence of for ing suggests income that a defendant has not raised a true defense, impossibility merely inability pay. but an assertion of to jury 5. To be entitled to a instruction on the affirmative impossibility, defense present prima of a defendant must facie evidence from the which finder fact could of conclude that it was 492 Mich 367 support. If a genuinely impossible the for the defendant to showing is entitled to an made this threshold and defendant has instruction, may if the defendant be exonerated the trier of then by preponderance of defendant has established a fact finds that the impossible genuinely him for or her that it was the evidence every complywith for each and violation within the order period. charging record of the defen- Because the the relevant responses family proceedings is and in the court dant’s conduct determining compliance possibility of with the relevant the good-faith efforts, evaluating support order and the defendant’s prosecution may rely on that and the record both defense any defen- relevant evidence. Evidence addition other truthful, assets, accurately hid failed to document the dant was not voluntarily disposal, at or her was resources and assets his unemployed underemployed, all failed exhaust reasonable necessary satisfy generating lawful of the income and means timely support obligation, of the or failed to seek modification family it be when it became evident that could not court order combination, may,singly performed a claim it or in defeat that was comply impossible order. The for the defendant to with the family by preponderance a of the of court’s determination evidence preclude capable paying of does not the amount a defendant asserting charge impossibility as to a defendant a defense from beyond felony nonsupport, proved which must be reasonable doubt. sought relating 6. The to introduce to her evidence Likine illness, incapacitation, disability might im- mental establish jury.

possibility if and believed Under the submitted to record, circumstances, given undeveloped it state excluding could not evidence was harmless be concluded that this Accordingly, judgment heyond a of the Court reasonable doubt. Appeals must case remanded to in Likine be reversed the circuit for a new trial. sought impossibility 7. Parks neither asserted nor to assert felony Instead, nonsupport. at he defense criminal trial for his Appeals first time in the Court that his asserted nonsupport. was Because a defense occurred, judgment Appeals plain of Court of no error the Parks was affirmed. guilty charge plea of 8. an unconditional to Harris entered knowing guilty plea nonsupport. An that is unconditional intelligent appeal, even of waives claims of error on claims preserve dimension. therefore failed to constitutional He case, presented in this and he admitted the constitutional issue v Likine guilt. factual Accordingly, basis for his the circuit court did not by refusing abuse its discretion to allow to Harris withdraw his plea, and he is not entitled to relief. Likine reversed and case remanded to the circuit court for proceedings.

further

Parks affirmed.

Relief denied in Harris. joined by Justice Cavanagh Justices Marilyn Kelly, dissenting, would have overruled Adams and held Hathaway, inability that an proper charge is the defense to a of felony nonsupport, concluding Legislature’s that the enactment of the current version of MCL addressing 750.165 without inability-to-pay acquiescence defense indicated its to the con- availability tinued of that inability-to-pay defense. Under the defense, the defendant would have to show that he or she has good-faith made all reasonable and comply efforts to with the support order but majority’s could not. unique impossibility-to-pay adopts legal concept standard that tradi- tionally applied only legal to factual impossibility in at- tempt only marginally supported crimes and is by one case that applied concept impossibility in a manner more akin to concept pay. requires No other state prove impossibility defendant to charge as a defense to a felony nonsupport. She further majority’s stated that the stan- unconstitutionally deprive dard will meaning- defendants opportunity present ful complete defense, prove grossly will unjust applied, when nearly and will create a insurmountable successfully defending barrier to felony nonsupport charges, resulting in a return to prisons the era of debtors’ in which indigent willful, individuals recalcitrant, obdurate, who are not imprisoned simply deceitful are they because cannot meet obligations. their financial — Pay — Support 1. Criminal — Liability Law Failure Child Strict — Impossibility. Defenses Inability 750.165, not a defense to a under MCL imposes liability which failing strict court-ordered child support; however, genuine impossibility is a defense under MCL supported by if evidence; 750.165 sufficient impossi- to establish

bility, a defendant must good show that he or she acted in faith and made all reasonable efforts and used all resources at his or her disposal comply order, with the but could not do so through own; no fault of his or her only defendants must not they pay, establish that among cannot but that theirs are exceptional reasonably possible cases which it was not to obtain 492 Mich 367 pay; has to whether a defendant the determine resources the impossibility, should consider whether a court established diligently sought employment; whether the defen- defendant has job; employment, such a second additional as dant can secure liquidated; defendant investments can be whether the has gifts inher- or an defendant has received substantial whether the itance; refi- a home that can he the defendant owns whether nanced; used has assets that can be sold or the defendant whether prioritized payment collateral; as whether the defendant loan nonessential, luxury, or support purchase over the of child extravagant items; has the defendant and whether otherwise against precautions guard misfor- financial taken reasonable arranged future her financial affairs with tune and has his or mind; contingencies this of factors for the court to consider list not, however, exhaustive. — — Liability — Pay Support 2. Criminal Law Failure Child Strict — —Impossibility Jury Instructions Burden of Proof. Defenses — jury a the affirmative defense of To be entitled to instruction on impossibility failing pay support a child under MCL 750.165, prima present from a defendant must facie evidence genuinely which of fact conclude that it the finder could was impossible paid support; defendant for the defendant to have may showing be if the who has made this threshold exonerated by prepon- trier that the has of fact finds defendant established genuinely impossible him or evidence it was for derance of the family complied her to with the court order for each have every charging period. within the violation relevant — — Liability — Pay Support 3. Criminal Law Failure Child Strict — —Impossibility Evidence. Defenses possible it have To determine whether was defendant to complied support giving felony charge with the rise to a order good-faith under 750.165 and evaluate the defendant’s MCL efforts, prosecution may rely the defense and the on both family any proceedings in court addition to other record of the evidence; truthful, the defendant not relevant evidence that was assets, accurately hid and assets failed to document resources disposal, voluntarily unemployed at his underem- or her was ployed, means of failed to exhaust all reasonable lawful satisfy obligation, generating necessary income timely family order when failed to seek modification performed may, singly it that it or in became evident could not be combination, impossible defeat a claim that it was for the defen- order; family comply deter- dant to court’s v Likine Opinion of the Court capable paying does the amount a defendant is mination of asserting impossibility as a defense to preclude a defendant from felony nonsupport. Bursch, Schuette, General, John J. Attorney

Bill Bandstra, Legal Chief General, Richard A. Solicitor Attorney Counsel, McGormley, D. Assistant and Joel in Likine and Parks. General, people for the Bursch, General, John J. Schuette, Attorney Bill Prosecuting Attorney, General, Tony Tague, Solicitor Justian, Attorney, for Appellate F. Chief and Charles Harris. people McCormack, Moran, Michael J. David A. Bridget LLP Moss, Connelly, & L. and Williams Steinberg, Kary Kim), for Selesa Likine. (by Frances Y. Baker) for (by Douglas Defender W. Appellate

State Parks. Michael McCann) J. (by Defender Appellate Jacqueline

State for Scott Harris.

Amici Curiae: A. Schafer, Kym Worthy, Timothy L.

Ronald Attorneys Association Baughman Prosecuting for Michigan. profes- criminal law

Eve Brensike Primus for various in Likine. Michigan at law schools sors Legal Services Association Vivek S. Sankaran in Likine. Michigan involve the J. These three cases Kelly,

MARY Beth child support court-ordered of failure to the rule of under MCL 750.165 and (felony nonsupport) Mich Opinion of the Court Adams,1 not inability which held that is to consider the granted to this crime. We leave defense Appeals’ ruling of the Court of constitutionality that, clarify while Adams now felony nonsupport pursuant to MCL defense defendants 750.165, preclude Adams does not criminal impossibil- defense of proffering from common-law ity. consider, time, for the first require

These cases us Michigan’s felony-nonsupport the nature of statute charge. defense to a We endorse proper impossibil- the well-established common-law defense of ity felony nonsupport. doing as the defense to In proper so, we differ from the dissent both in terms of our parents’ pri- view and our sense of financial temporal Consistently Legislature’s expressed orities. statutes, intent in the child we believe that to avoid conviction for felony nonsupport, parents should required everything possible provide be have done for their child and to have their in a arranged finances way their prioritized parental responsibility so that charge. the child does not become a Unlike the public dissent, legislative which would undermine the choices statutory that are reflected in the child frame- support work, parental responsibility obligation our view of and leads us to recognize impossibility defense. This by defense differs from that advanced the dissent be- guidance cause we to the circuit provide regard- courts ing adjudicated, although how the defense is to be and consider, a parent’s ability pay is one factor we we Allowing also take other factors into account. mere inability-to-pay suggests defense as the dissent would undermine re- Michigan’s legislative system, which quires ability to to be considered in establishing (2004). Adams, App Mich 683 NW2d People v Likine Opinion Court instance, explicitly prohibits in the first order support orders, support of child and the retroactive modification strict-liability criminal offense. makes plain language with the Our view is consistent as much gives statute and Michigan’s nonsupport Legislature’s expressed as to the meaning possible do our Constitution. intentions, required as we are than other Michigan placed greater priority If has in as reflected its support states on the issue of child defense, laws, are, recognizing in this support child we legislate as it sees Legislature simply permitting in directive and fit, legislative in accordance with its role. judicial accordance with our I. FACTS AND PROCEDURAL HISTORY LIKINE, A. PEOPLE v DOCKET NO. 141154 (Likine) and Defendant Selesa Arrosieur Likine Elive (Elive) Family The Divi- Likine divorced June 2003. (the County family the Oakland Circuit Court sion of court) three gave custody parties’ Elive physical Likine to child The support. children ordered family recognized “history fairly court Likine’s seri- diagnosis ous mental health conditions” and her depressive-type family schizoaffective disorder. ordered a month in child initially support $54 a month in 2004. August then raised it to $181 2005, Likine failed to with the Beginning comply her to child Elive requiring support.2 sought order payments year. an increase in child that same 2 Testimony during period when at trial would later reveal month, only support obligation $181 “[t]here was one Likine’s child was paid.” support plus in which a little bit of arrears was month the current paid paid in 2007. From $488.85 Likine no child January through paid According $100. March she a total of Likine, being unemployed September she had been since after 492 Mich 367 Opinion op the Court (FOC)

The Friend of the Court referee recommended that support obligation Likine’s child be increased to $1,131 parties’ testimony a month on the basis of the and evidence that had secured mortgages, she two $15,000 listing applications, income as a month on the $409,000. a home The referee im purchase worth $5,000 Likine,4 puted income of month to reasoning that this was the minimum income required meet the monthly expenses” “bare bones Likine had reported.5 day hearing novo, After a two de family adopted FOC referee’s recommendation in an order August dated 2006. 28, 2006,

On September family court denied Likine’s motion for reconsideration writ- five-page ten that opinion, concluding testimony Likine’s was hospitalized; earned, most, $19,000 ayear; January 2006, she had at after security disability payments she subsisted on social $600 about month. evasive[,] “very [had] The referee noted that Likine was as she been past hearings, about the nature and her source of income.” Likine also lifestyle using indicated that had she financed her credit cards and did support poor not believe that her child should be increased “for her financial decisions.” 4 MCL 552.519 establishes the state Friend of the Court Bureau and charges developing providing “[guidelines it imputing with support” by income for the calculation of child the Office of the Friend of 552.519(3)(k)(iii). 552.517b, pertains the Court. MCL MCL which orders, specifies “[t]he review of child friend of the court may impute party provide office income to a who fails or refuses to FOC, 552.17b(6)(b), provides information” to the MCL “[i]f imputed, assump income is the recommendation shall recite all factual 552.517b(6)(a). upon imputed based,” tions which the income is MCL 5 The referee concluded that Likine trying either has far more income than she is to convince the Court has, or, living she she has other sources which to her way, expenses. patently Either it would be unfair not to base child [Likine] on the income sees fit to believe she is entitled to

live on. v Likine Opinion of the Court truthful, that her tax did accurately returns reflect income, her and that Likine had “misrepresented her many income so times that way there is no to ad- equately determine her income.” family court rec- ognized that Likine “does suffer from some form of illness,” mental but the evidence presented led the court to conclude that she “working was and earning herself, income” because she was “maintaining includ- ing payment of a substantial mortgage.” Although Likine’s “actual income could not be determined due to her testimony evasive and numerous misrepresenta- tions,” the family court found that the amount of income imputed was appropriate.6 20, 2008,

On March the Department Attorney General, Child Support Division, charged Likine crimi nally with 1, between February 2005, 11, 2008, March in violation of MCL 750.165. On September 29, 2008, prosecutor filed motion in limine to bar Likine from offering or referring, directly or indirectly, ability to her or inability to court- ordered child support, including employment her status that claims her actual income was less than the Citing amounts used to calculate her support obligation. ams,7 prosecutor argued that evidence of Ad inability is not a valid defense to the crime felony nonsupport, a strict-liability crime.

At the motion hearing 8, 2008, on October Likine argued that prosecutor seeking was her deprive of any defense to the charge against her and that this violated her constitutional right to due process. She applied appeal ruling, Likine for leave to that but the Court of Appeals persuade denied leave “for failure to the Court of the need for appellate Likine, unpublished immediate review.” Likine v order of the (Docket 280148). Appeals, Court of entered March No. 7 Adams, App at 89. 492 Mich 367

Opinion of the Court from that had no source of income or assets claimed she support. court-ordered child Likine which to unemployed had been since further testified she from a month- when she was released September she was disabled long hospitalization; disorder, for which she had received schizoaffective treatment, medication; that her sole periodic including security income supplemental source of income was (SSI) month; that she had tried to amounting $637 temporary job physically hold a but was part-time so; that the bank foreclosed on mentally unable to do and “short sold” her Rochester Hills home June although professional and that she had held two licenses, lapsed or had and she was they were inactive rating unable to use them because of her credit her disability. Likine, she had been able to According pay a month in child in 2004 because that support $181 pro- amount was based on her actual income. Likine security vided the circuit court a of her social copy 2003, earnings covering through record which through showed no income from 1994 2002.8 On Octo- 21, 2008, ber the circuit court issued a written order granting prosecutor’s motion in limine. 2008, jury prosecutor

At the trial in November presented testimony of Elive and an FOC child- that the support-account specialist. specialist testified child order entered Likine and Elive di- support when required vorced Likine to a month for one child $35 The amount subsequently month for two. was $48 increased, August period in a month. For the $181 February subject felony-nonsupport charge, March the amount of ordered was through initially month, but in June 2005 it raised to was $181 modify Likine also informed the court that another motion to was pending April report. had issued the before FOC referee who v Likine Opinion of the Court $1,131 specialist month. The testified that Likine had made in very sporadic payments, including payments only 12 of the 37 months in charged, ranging amounts from $100 $281.

Elive also testified that Likine’s child support pay- “very ments were sporadic,” stating only that she paid child “when the Friend of the Court threatened her they sent her a note.” Elive testified that Likine had him told that he “would by suffer with those kids” himself and that Likine had said she would “not [pay] any child support” because “women don’t child support.” He he sought stated that in increase child support amount in June 2005 after Likine pur- chased a half-million-dollar home in Rochester Hills.9

Likine testified on her own behalf. She stated that she was able to both the a month $54 that was initially ordered and the monthly amount, $181 but when the support amount $1,131, was increased to she was unable to make payment. She acknowledged that she purchased had Hills, home Rochester but stated that the put house “was [her] name” and that her boyfriend had paid for it. In closing, defense counsel argued that the amount of Likine’s child sup- port had effectively been “made up” using imputed income as the basis for calculation and that “the child support should not $1,131.” have been the amount of Counsel argued further that Likine “being was torn apart by factors [had] she no control over.”

The jury found Likine guilty charged. as Likine moved for relief from the judgment or for reconsideration, argu- ing that MCL 750.165 should be declared unconstitutional or, alternatively, that the granting prosecutor’s order 9 purchased Elive also testified that Likine had a new vehicle around bought the time that she the house. Likine testified that she had turned acquired in a leased vehicle and another leased vehicle. 492 Mich 367 Opinion the Court and vacated so limine be reconsidered should

motion charge. The circuit Likine could offer a defense to that upon stated “for the reasons first denied the motion a 8, and that this matter is strict record October circuit court sen- hability Subsequently, offense.” days’ year for one with probation tenced Likine to determine family that the court would credit and stated of restitution. the amount and appeal, Likine filed a claim of February

In counsel, she also through appellate in March Likine argued trial in the circuit court. moved for a new Due rights Michigan her under the Constitution’s that she not allowed Clause were violated when was Process inability pay of her as defense present evidence felony The charge nonsupport.10 to the criminal record, citing circuit court denied the motion on not a inability for the rule that is Adams offense. strict-liability defense to this affirmed, holding, part, The Court of Appeals collat- “argument actually impermissible Likine’s is underlying support eral attack on the order.”12 right that defendant’s Appeals Court of concluded due had not been violated because non- process offense, strict-liability so evidence of her support not relevant. inability was leave, v v granted People People Parks We Harris, Adams, rule which to consider whether the held that is not defense to argument for a new trial characterized her as Likine’s motion itself, However, pertaining “ability pay” defense. the motion to an motion, ruling in Port Huron her brief in cite this Court’s (1889), Jenkinson, it was v 77 Mich 43 NW 923 assert obligation. “impossible” for her to fulfill her 11Adams, App 262 Mich at 99-100. (2010). Likine, 648, 654; App 794 NW2d 85 v Likine Opinion of the Court 750.165, felony nonsupport under MCL is constitu- tional.13 PARKS, PEOPLE

B. DOCKET NO. 141181 (Parks) Joseph Defendant Michael Parks and his wife (Diane) Diane Parks divorced in 2000. De- September fendant, surgeon, orthopedic physician was rural practice with a solo who worked a con- sometimes as physician. Ingham family tract court initially or- dered defendant to in child support week $230 19, three children. parties’ August 2003, On family court modified Parks’s support obligation obligation throughout week. That was effect $761 the criminal proceeding this case.

Parks charged criminally violating was MCL failing 1, 750.165 for child from October through July 2008. At a bench trial in January 2009, Diane testified that Parks had made no support payments during the She period charged. testified that time, during that Parks had made requests several for a reevaluation his child support obligation there had hearing been a before the family court at represented by which Parks was counsel. After this hearing, family denied Parks’s be- request cause 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 at testified the trial. The officer testified that Parks had made no child support payments from October 2006 to July that the FOC had tried to enforce Parks’s child obligation by initiating hearings show-cause and ob- taining income-withholding and bench orders warrants (2010). Likine, People v 488 Mich 955 492 Mich Opinion the Court trial, As of the date of the none

for Parks’s arrest. Parks’s child sup- had been successful. attempts these $262,000. amounted to more than arrearage port imputed that the FOC to improperly Parks testified group an urban in a physician him the income of practitioner his income as a rural sole practice, whereas Also, Parks testified that “considerably was lower.”14 ham- imposed by conditions a federal court probation thereby medicine15 and pered ability practice his to child further impaired ability pay support. his Parks disabled,16 he currently receiving testified that was was disability government, benefits from federal bankruptcy had declared in 2005. Parks testified that pay- he “believe that he had made child support [d]” July ments between October 2006 and 2008. When documentation, produced asked to Parks provide system from the child enforcement that report support evidently thought he reflect that he had made would but the examined payments, report noted zeroes,” indicating that it showed “all that he had paid support no child or after October 2006. prosecutor argued pay While the that was not a defense pursuant Adams, testimony, the trial court did not curtail Parks’s indicating judge trial that because it was a bench and the understood the law, testimony regarding improperly imputed Parks’s his income made no difference. 15Defense counsel admitted into evidence a March 2005 order of the Michigan United States District Court for the Western District of amending judgment Parks’s in a criminal case. The amended judgment days’ imprisonment violating sentenced Parks to 90 probation required “pay terms of his federal that him to child payments” “support accordance with his court-ordered schedule of and to dependents family responsibilities.” his and meet other In addition to serving days’ imprisonment, required Parks was restitution in $28,623.34 Ingham County the amount of to the Friend of the Court judgment. within after the date six months amended 16According Appeals, to a motion Parks filed in the Court of he suffers syndrome carpal from tunnel in both hands. People v Likine Opinion of the Court trial, At the prosecutor argued close of that each necessary of the three elements to convict Parks of violating MCL 750.165 had been established: that Parks was child support, ordered that he was either matter, personally appeared underlying served or and that he had failed to the ordered amount. Defense counsel “did all argued Parks that he could child comply” support obligation with his and was “doing what he could to reestablish his practice.” De- fense urged counsel that Parks’s child support pay- “adjusted.” ments be judge The circuit explained he did adjust child support obligations because, as a circuit judge presiding matters, over criminal he was not authorized adjust orders, which are subject to the authority of the family court. The circuit judge found guilty defendant as charged, stating that it was “obvious” that considering “the number of times Mr. Parks has refused pay years, over the including the period here, of time in question . . . Mr. Parks has no real desire comply says with what the law he is supposed to do” and that “Mr. simply Parks does not want to pay.”

At sentencing, Diane stated that it “very was difficult to raise three kids without support,” all three children working “have been since age of 16 to help support and themselves,” house and that she was taking only half of her multiple sclerosis medicine “to cut back in ways” whatever Parks, she could. Alexis defendant’s daughter, statement, also made a asking that Parks be only way incarcerated because “the he’s ever paid is when he was in jail.” Parks was ordered to pay $234,444.83 restitution in the amount of and sen- years’ tenced to 5 probation year jail and one in with days served, credit for 205 suspended which would be if he paid portion of the restitution. 492 MICH367 Opinion the Court of 20, 2010, April and on appealed right,

Parks in an unpublished opinion affirmed Appeals Court of noted that Parks Appeals curiam.17 The Court per in inability to circuit pay had not raised the defense of an unpreserved and the claim as court so reviewed relied on Appeals issue. The Court of constitutional guilty that Parks could be found Adams conclude intent or finding MCL 750.165 with no violating liability the statute strict knowledge imposes because felony is not a defense to a and nonsupport. Harris, leave, again granted

We with Likine of Adams is constitutional.18 consider whether the rule HARRIS, PEOPLE v DOCKET NO. 141513 C. (Harris) Bennett Harris Defendant Scott (Lavonne), 2003. Lavonne Harris divorced November family initially ordered Harris to Muskegon children, and the amount a month for his two $139 a month in 2006. subsequently was increased to $612 West, Florida, Harris, Key was living who was as a fourth-offense charged his court-ordered failing habitual offender for 4, 2003, 7, 2008. April May child between arrearage nearly child amounted to Harris’s $13,000. 25, 2008, guilty Harris as September pleaded

On fairly complex sentencing for a charged exchange Muskegon v Cobbs.19The agreement pursuant sentencing delayed would be agreed Circuit Court 17 Parks, unpublished opinion per People curiam v Court 291011). (Docket 20, Appeals, April issued 2010 No. (2010). Parks, People Mich v (1993). Cobbs, People 505 NW2d v Likine Opinion op the Court 2008) (until if 8, December months by two arrearage, $3,000 of the child paid Harris If May 2009. Harris delayed until sentencing would be 2009, May $5,000 arrearage by on another paid him to it not sentence that would agreed circuit court still be incarceration, although he would any type fines, costs, and probation, imposition to the subject stressed, however, that circuit court tethering. The current” his stay “need to Harris would arrearage. After paying in addition to obligations conditions, circuit court ac- to the agreed Harris Harris to return to plea permitted cepted guilty his in Florida. his home before the appeared Harris December

On Harris had At that time sentencing. circuit court child ongoing of his $1,500, the amount roughly paid he had acknowledged that but he support payments, His counsel arrearage. any amount paid not free, to remain permitted if Harris were argued a substantial sum.” be able to raise Harris “would try “want[ed] that defendant counsel stated Defense as evidenced indigent, that he was comply,” but for him counsel having appointed the court’s allocution, stated defendant On proceeding. criminal duration, years’ of 10 problem had a back only that he problems.” that Harris had “heart lawyer his added statement impact in her victim Lavonne asserted that she her on several occasions that Harris had told regarding him another dime from “never see would refused recalled that defendant children.” She [the] two medical ex- assistance with uncovered any to provide hand and indicated their son broke his when penses clothes buy afford to their son winter that she could not from their father.” “get any help because she could but problem that Harris had back acknowledged She 492 Mich 367 Opinion of the Court was unaware any that he had problem. heart 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 of- fender to a prison term of 15 years. months to 15 circuit ordered costs and restitution $12,781.39, the amount of the child support arrearage.

Through appointed counsel from the State Appellate (SADO), Defender Office Harris moved to withdraw his plea or for resentencing. At the hearing 10, on August 2009, the circuit court heard argument, extensive in- cluding Harris’s claim that had he been permitted to do so, he would have testified that he had tried generate income but could not because of his health conditions. The circuit court denied the motion in opinion order dated August 21, 2009. The circuit court stated by it was bound 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 agreement.20 sentence 4,

On 2010, June the Court of Appeals denied Har- ris’s delayed application for leave appeal for lack of Harris, merit.21 still represented SADO, sought leave appeal Court, this challenging the constitutional- ity of MCL 750.165. granted

We case, leave this with Likine and Parks, to consider whether the rule of Adams is constitu- addition, In improper circuit court concluded that it was not adopt arrearage that court as the restitution amount and re quested supplemental briefing challenge scoring on Harris’s to the (number victims). offense variable 9 upheld The circuit court scoring opinion 2, in an and order dated December 2009. Harris filed a rehearing, motion for which the circuit court denied on March 2010. 21 People Harris, unpublished v Appeals, order of the Court of entered (Docket 297182). June No. Likine Opinion the Court addition, in this case granted we leave In tional.22 its discretion the circuit court abused whether consider motion to with- postsentencing it denied Harris’s when court erred when the circuit his and whether plea draw determination family court’s it adopted the restitution to be amount as child-support-arrearage had Harris in this criminal case whether imposed that issue. waived OF REVIEW

II. STANDARD statute, of a interpretation involve These cases de on of that we review novo question law appeal.23 give is to effect statutory interpretation of primary goal The first is to step to the intent of the Legislature.24 If the the statute language review the of statute itself.25 face, be unambiguous Legislature on its the will meaning expressed, to have intended the presumed nor judicial required permis- construction is neither sible.26 We review de novo constitutional issues.27

III. ANALYSIS argue All the circuit courts denied defendants right they their constitutional to due when process “inability of defendants’ refused to consider evidence pay” felony nonsupport. as a defense to the of 22 (2010). Harris, People v 488 Mich 955 23 Complaint, In re MCI Telecom 460 Mich 596 NW2d 164 (1999). 24 Petroleum, Inc, Farrington 201, 212; v Total 442 Mich 501 See NW2d (1993). 76 25 Bd, 547, 567; Speaker House v State Admin 539 441 Mich 495 NW2d (1993). 26 (1992). Co, 370, 376; Lorencz Ford Motor 483 NW2d 844 27 Wayne Treasurer, 503, 508; Sidun v Co Mich NW2d 453 (2008). MICH Opinion op the Court

Only Likine explicitly equated her alleged inability pay with a claim of impossibility.

A. MCL750.165 To evaluate arguments, defendants’ we must first statute, consider the relevant MCL op- 750.165.28The provides, entirety: The statute in its (1) pay support the court orders an individual to for the If spouse, individual’s former or current individual, a child for of and the individual does not in the order, guilty amount or at the time a stated the individual is felony punishable by imprisonment years for not more than 4 $2,000.00, a fine of not more than or both. (2) apply This section does not unless the individual ordered to pay support appeared in, by personal of, or received notice service action which the order was issued. (3) deposits Unless individual a cash bond of not less than arrearage, greater, $500.00 or upon 25% the whichever is arrest section, for a violation of this the individual shall remain in custody arraignment. until the If the individual remains in cus- tody, the court shall address the amount cash bond at the arraignment preliminary and, and at except examination good record, cause on shown shall order the bond to be arrearage, continued at not less than $500.00 or 25% the greater. discretion, may whichever is the cash bond at an At the court’s the court set arrearage amount not more than 100%of the and add to that may amount the amount of the costs that the court 31(3) require under support parenting section of the and time act, 295, enforcement 1982 PA MCL 552.631. The court shall specify that the cash bond amount be entered into the L.E.I.N. If support bench warrant parenting under section 31 of the act, 295, 552.631, time outstanding enforcement 1982 PA MCL for an individual when the individual is arrested for a violation of section, notify handling this the court shall the court the civil support support parenting case under the time enforcement act, 552.650, PA MCL552.601to that the bench warrant may be recalled. (4) may suspend The court the sentence of an individual convicted under this section if the individual files with the court a in requires. bond the amount and with the sureties the court At a minimum, the bond must be conditioned on the individual’s compliance support suspends with the order. If the court a sen- People Likine v op Opinion the Court the “[i]f provides of the statute language erative . for a child . pay support. an individual court orders not the pay does individual, and the individual . . . .”29 guilty individual is the support..., MCL v ADAMSAND 750.165 B. PEOPLE father, charged Adams, the defendant In sought to under MCL felony nonsupport with 750.165, defense to as a inability of his introduce evidence defense, but the permitted The circuit court charge. the reversed, holding Appeals the Court of To this reach felony nonsupport. defense to is not a current conclusion, Appeals compared the Court of MCL 750.165 statute’s language of statutory Before this amendment 1999.30 before its language part: amendment, provided relevant the statute order any divorce ... the court shall decree of Where any friend of the amount to the clerk or husband to [a] any wife... or support of wife or former court for the or friend of the court pay any amount to the clerk father to comply does not this subsection and the individual tence under bond, another condition on the with the may order or why appear show cause the court the individual to order impose enforce the bond. After the the the sentence and should hearing, sentence, may impose or the court enforce bond again suspend both, may permit filing of a new bond and under order a amount enforced The court shall sentence. paid the clerk or friend of the court or to this section to be unit. state disbursement (5) section, unit” or “SDU” As used in this “state disbursement entity of child in section 6 of the office established means (emphasis act, [MCL support added).] PA MCL 400.236. 750.165 750.165(1). MCL decided, further amended MCL 2004 PA 570 After Adams was (3), deposited which concerned cash bonds to add subsection 750.165 defendant, opinion, would not this but that amendment see note 28 of analysis here. analysis not affect our Adams and does have affected the 492 Mich 367 Opinion of the Court children,

for the [a] minor child or and said or neglect husband father shall such refuse amount at the time stated in such order and shall leave the Michigan, state of guilty said husband or shall be father .[31] ... Comparing the statute, two versions of the the Court of Appeals concluded that the current version of MCL 750.165, which did not the language have “shall refuse neglect,” contains no fault or intent Noting element. that the language omission of expressly requiring fault as an element did not end the court’s inquiry, the Adams Court focused on Legislature whether in- tended to fault require predicate as a to guilt.32 Exam- ining recognizing inability caselaw as a defense to a charge under the statute,33 earlier version of the Court noted that the cases had “implied a criminal intent requirement into the statute.”34 The Adams Court rejected the applicability of that analysis to the language of the current statute: statute,

[I]n the current amended deleting in addition to gender-specific references such as “husband” and “father” requirement and the person state, leave the Legislature any removed reference to the individual’s re- 750.165, added). MCL (emphasis as amended 1939 PA 89 32Adams, App at 93. The Court listed “numerous factors that may deciphering intent,” including: be considered in this (1) (2) law; whether the statute is a codification of common (3) legislative history title; guidance statute’s interpreta- or its (4) provided by statutes; severity tion punishment other (5)

provided; public-welfare offense, whether the statute defines a (6) severity potential and the public; opportu- harm to the (7) nity facts; difficulty to ascertain the true encountered by prosecuting proving officials in [Id. a mental state. at 93-94 (citations omitted).] 33Id. at 94-98. 96, discussing People Ditton, App 610; Id. at Mich 261 NW2d 182

(1977). v Likine Opinion of the Court Legislature’s support. the neglect the Given fiisal or neglect, there is language relating to refusal or of deletion longer wording in the statute that could be used no include a mens rea support a construction that would Thus, requirement cannot be requirement. ... an intent any language supporting such an implied in the of absence interpretation.[35] the the current version of recognized that

Adams of intent liability regardless criminal imposes statute public goal ensuring protection the with type is the welfare, stating: “Criminal the class of crimes generally crime that falls within necessary. A law that criminal intent which no only a his child benefits requires parent community at well-being the child but also large.”36 conclusion Appeals’ the Court of agree

We with Al- liability. imposes that MCL 750.165 strict Adams disfavored, there is strict-liability offenses are though create such of- may the Legislature no that question con- afoul of constitutional running fenses without Adams, have Consistently we stated cerns.37 under strict-liability “regulated crimes conduct course good, the social a police power promote state’s may requiring elect without mens Legislature mind that rea,”38 particular state of which is in order to the defendant had prosecution prove must addition, recognized In have a conviction.39 we secure intent an element of criminal that “courts will infer 35 Adams, App 262 Mich at 96. 36 Id. at 99. 37 225; 240; California, Lambert v S 2 L Ed 2d 228 355 US 78 Ct See California, 147, 150; (1957); 4 L Ed see also Smith v 361 US 80 S Ct (1910). Rice, 657, 664; People (1959), v Mich 126 NW 981 161

2d 205 (1992). Quinn, 178, 187; NW2d (7th ed). Dictionary Black’s Law See 492 MICH Opinion of the Court regarding

when offense is silent mens rea unless the express statute contains an indication that implied body intended legislative that strict criminal liabil- ity be imposed.”40 agree holding We with the Adams language the revised of MCL 750.165 evinces legislative clear intent to dispense with the mens rea element and impose liability by eliminating strict language regarding a neglect” “refus[al] defendant’s support, ordered and instead providing simply that if “the individual does not the sup- . port . . the individual is guilty felony.”

C. COMMON-LAWDEFENSE OF IMPOSSIBILITY that MCL Concluding 750.165 is a strict-liability offense, however, analysis. does not end our The Adams only Court addressed the defense of did not address the common-law defense of impossibil- ity, which if proven negates the actus reus of a crime.41 Kowalski, People 488, 12; (2011), v 489 Mich 499 n 803 NW2d 200 citing Tombs, People 446, 452-456; (2005); 697 NW2d 494 Video, Inc, 64; 464; United States v X-Citement 513 US 115 S Ct 130 L Ed (1994); Staples States, 600; 1793; 2d 372 v United 511 US 114 S Ct L128 (1994); States, 246; Ed 2d 608 and Morissette v United 342 US 72 S Ct (1952). L96 Ed 288 41 However, legal specifically we note that commentators have dis Adams, emphasizing voluntary-act cussed requirement in criminal requisite possibility performance law and the in crimes of omission: rea) part It is axiomatic {mens that crimes consist of a mental (the physical part act, requirement voluntary and a of a or a failure so). duty however, possible,

to act when there was a to do It is legislature dispense requirement.. a with a mens rea . . Nonetheless, correctly voluntary [Adams] is more a framed as involuntary act case rather than a mens rea case. An act —or an involuntary duty failure to act when there awas to do so—has subject punishment Indeed, never before been in American law. years ago Michigan Supreme more than 100 Court addressed very issue, possibility performance this and concluded is an essential element in a failure-to-act offense. No one can be held v Likine Opinion of the Court Generally, the commission of a crime an requires both actus reus and a mens rea.42 a Though strict-liability element, reus, crime includes no mens rea the actus act, wrongful remains an element of the crime.43 Spe cifically, a offense strict-liability requires prosecu prove beyond tion to a reasonable doubt act, defendant committed the prohibited regardless of regardless defendant’s intent and of what defendant actually knew or did not know.44

A might defendant defend against strict-liability by submitting proofs crime either that the act never occurred or that the defendant was not the wrongdoer. Additionally, law, at common a defendant could admit act, that he committed the but defend on the basis that the act was involuntarily.45 committed Examples of involuntary that, acts if proved, provide a defense against the actus reus element of a crime include criminally bodily liable because of a movement which is involun tary. criminally failing perform Nor can one be held liable for incapable performing. [Apol Studnicki, act which one is & - survey 1, Michigan May

Annual law: June 2004: law, Wayne (2005), citing Jenkinson, Criminal L R 673-674 (1889).] 77 Mich 414 42 See, Morissette, e.g., (noting early 342 US at 251 American courts’ recognition compound concept, generally of crime only “as constituted evil-meaning from concurrence evil-doing hand”); of an mind with an see Blackstone, England, *20, also p (stating Commentaries on the Laws of against laws, be, that “to first, constitute a crime human there must will, secondly, vicious consequent upon an unlawful act such vicious will”). 43 wrongful comprises physical “[t]he actus reus is deed that components generally coupled of a crime and that must be with mens rea (8th ed). liability!!] Dictionary to establish criminal Black’s Law 44 Quinn, 440 Mich at 188. 45 See, (1943) e.g., People Freeman, App 110; v 61 Cal 2d 142 P2d 435 (finding voluntary defendant, no experiencing act when the after an epileptic seizure, driving, causing became unconscious while a fatal collision); Hinkle, 280, 282, 285-286; State v 200 W Va 489 SE2d 257 (1996) (finding voluntary no act when defendant lost consciousness while collision). driving undiagnosed disorder, causing because of an brain a Mich 367 492

394 Opinion of the Court convulsions,47 actions,46 seizures or spasms, reflexive the actor is occurring while bodily movements running thread The common asleep.48 unconscious that the act “involuntariness” defenses is through these control, and thus the defendant’s does not occur under its occurrence powerless prevent the defendant was for the act.49 criminally be held liable and cannot omission, however, an 750.165, criminalizes MCL law, defense act. At common an established a failure to Like its coun- impossibility,50 to a crime of omission 46 (1970) 373; Newton, 359, Rptr People App 87 Cal 394 v 8 Cal 3d See (discussing condition” after the of consciousness and “reflex shock loss wound). gunshot an abdominal defendant sustained 47 See, Welsh, 719, 722-723; e.g., App 8 508 P2d 1041 State v Wash (1973) intent, (stating, regard that there is no with to the element “during liability explaining act and a criminal for an unconscious behavior; seizure, person psychomotor of his his actions is not conscious automatic”). are (2d ed), 6.1(c), Scott, p § 1 LaFave & Substantive Criminal Law See 1981) Mishne, 450, (Me, (construing 429; A2d 455-57 State v consciousness); requiring cf. intentional act as awareness (1956) 137-140; 558; Decina, 2 NY2d 157 NYS2d 138 NE2d defendant, knowing might, any (finding voluntary act when the he at seizures, time, subject epileptic attacks and drove an automobile be him, seizure, nobody accompanying and caused a fatal suffered collision). 6.1(c), Simester, Scott, p § 1 LaFave & see also On See action, voluntary requirement 1 Buff Crim L R so-called (1998): may philosophers helpful [I]t be to consider what have had to fact, surprisingly analysis say about voluntariness. In there is little Moreover, existing analysis always is not in the literature. explain concept. approach as the the same One is to voluntariness opposite of involuntariness .... An alternative account is of vol-

untary as volitional action —behavior which is inten- behavior agent description, which is “done because the tional under some [Citation omitted.] wants to do it.” (4 Dall) See, States, 374, 376; e.g., Willing v 4 US 1 L Ed 872 United (1804) defendants, (ruling argued who in the district court in favor of had “ (lex cogit compel parties impossibilities ad non ‘the law does 395 v Likine Opinion of the Court terpart, involuntariness, the centuries-old defense of impossibility derives from English common-law 1843, courts.51 example, Queen’s For in Bench liability considered a defendant’s repair for failing to portion highway of that impassable had been rendered when surrounding sea encroached. The Judge Chief stated: charged

Both the road which the defendant is liability repair, and passes, the land over which it are by away washed road, the sea. [the To restore the as required do, defendant] part is he must of create a earth anew.... here all the of material which a could road swept away by be made been have the act of God. Under those circumstances can the defendant for be liable repairing road? an authority We want such found.[52] proposition; and none has been Queen’s Bench, The then, recognized impossibility performance as a a charge defense to involving omission.53 Like the involuntariness defense crimes (1974) impossibilia)’ ”); Coulson, (allowing v 3 All Stockdale ER 154 appeal quashing finding impossible and conviction that it after was for a company’s secretary comply requirement statutory and director with a exist); Regina Hogan, to attach that documents did not v 169 ER (1851) (noting 2 parent neglect, Den 277 that in order convict a parent it must be that supporting [the shown “had the means of child].”) 51 Recognizing impossibility law, early the roots of common Chief Case, 113b, 118a; Justice Rep Edward Coke stated in Dr Bonham’s 8 Co (1610), Eng Rep 77 parliament against 646 that an act “when reason, right repugnant, impossible performed, common to be it, adjudge the common law will controul such act void.” to be (comment Regina Bamber, (1843) 279, 287; 114 ER QB J.). Denman, Judge Wightman allegation C. noted that there had “no been duty [the on the keep defendant’s] [was] record that the sea out.” Id. at 286. Generous, (1818), See The 2 Dods which Sir William Scott stated, itself, it, yield “But the law the administration of must that thing every necessity. law, to which must bend— to its most 492 MICH 367 Opinion the Court act, of im- the defense an affirmative penalize an act of omission penalize to crimes possibility outside the defendant’s something must be based on control: cannot be

Obviously, the involuntariness of omissions way explained precisely the as for actions. It would in same odd indeed to talk of a reflex or convulsive omission. be Nonetheless, requires for the criminal law even omissions responsible [a must for her behavior defendant] that be [The reus of a crime. defen before she commits actus involuntary, responsibility her for dant’s] omission is duty discharge negated, actus she fails to a reus is when so.[54] impossible it for to do to intervene because was her differently, a defendant cannot be held crimi Stated failing that was nally perform liable for to act it is impossible perform.55 for the defendant to When discharge for defendant a genuinely impossible a law, exc imposed the defendant’s failure is duty used.56 disclaim, injunctions, positive peremptory understood to as it does is general compelling impossibili- aphorisms, all in its intention of them to ties; adopt general exception that and the administration of law must particular all See also In and N S the consideration of cases.” re Bristol (1877) Co, 10, (declining R 3 13 to issue a writ of mandamus QBD statutory duty “impossible” railway a that enforce for the was contrary elementary discharge doing so because “would be to the (comment C.J.). Cockburn, principles justice”) of of 54 R, Simester, p L 1 Buff Crim 417. 55 6.2(c), defense, Scott, (recognizing p § but 1 LaFave & emphasizing “impossibility impossibility”); United means see also that (CA 7, 1972) (holding “[glenuine Spingola, v 464 F2d that States omission”). impossibility proper defense is a to a crime (2d ed), 240, Williams, p § Law: Part See Criminal The General (stating may general proposition “[i]t be laid down as a that where act, imposes duty non-compliance duty be the law a with the will physically impossible”). recognized compliance excused first where We strict-liability years ago impossibility is a defense to crime 123 a

Jenkinson, Mich a discussion of which follows. People v Likine Opinion of the Court law, Michigan which has in the common its roots law, long common also English recognized impossi- has a bility as defense to crimes of omission. In Port Huron Jenkinson,57 this Court a city considered ordinance

that criminalized a property owner’s failure to repair running or her adjacent sidewalks to his if the property city requested the property owner to make the repair. recognized impossibility defense, Jenkinson as a hold- that the ing criminally defendant could not be convicted failing perform legally required duty when it was impossible for him to do so. The Court Jenkinson stated: legislative municipal body power

No impose has the duty performing upon any person an act which it is impossible him perform, and then make his non- for crime, performance duty such may which he be punished by imprisonment. both It needs no fine argument any citizen, to convince court or where law prevails, done; yet that this cannot be and such is the effect provisions by-law of the of the statute and under consider- readily ation. It occupying will be seen that a tenant a Huron, and city poor house lot in the of Port and so and indigent as to receive neigh- from his charitable bors, required by if city the repair authorities to build a along sidewalk the of premises street front the he occupies, comply and request, fails to such such criminal; and, upon omission becomes conviction of the offense, may he be imprisoned. hardly fined and is It say necessary to these two sections of the statute are 57 Jenkinson, (1889); Port Huron v 77 Mich 43 NW 923 see also Co, Joseph 386, 390-391; Benton Harbor v St & B H Street R 102 Mich 60 (1894) (recognizing impossibility respon NW 758 as a defense when the procure pave dent roadway, “cannot funds” to its within rails and the as required by ordinance; impossibility “that an it is utter to do what it done; expenses; [its] asked to have that it cannot current and ... compel performance that a of will writ mandamus not issue to the when apparent parties against it is that the whom it is to be directed have no therewith”). power comply to Mich 367 Opinion the of Court no void, provisions that are of and and the

unconstitutional They Constitution and are obnoxious to our force or effect. disgrace laws; are a to the two of statute sections State.[58] legislation of body legislative held that a specifically The Court act “is a to that perform require person cannot impose crimi- him and then impossible perform” for that act.59 perform nal for the failure to penalties common-law then, impossibility Jenkinson, recognized as a to a criminal omission. defense TO NONSUPPORT

D. AS A DEFENSE FELONY IMPOSSIBILITY no indication language provides of MCL 750.165 The common-law abrogate intended Legislature that the nonsupport.60 Con- impossibility as defense Michigan with the Constitution absent sistently law, we clear to abolish the common legislative intent of impossi- thus common-law defense presume if sufficient evi- bility supported remains available impossibility genuine we hold that Accordingly, dence.61 under felony nonsupport is a defense added). Jenkinson, (emphasis Mich at 419-420 59Id. at 419. 60 Michigan provides “[t]he common law and the The Constitution constitution, force, repugnant this shall laws now statute limitations, they changed, expire by until their own are remain in force repealed.” § art amended or Const 7. (2010). 693, 705-706; People Dupree, 788 NW2d 750.165(1), operative language “[i]f which states that the court MCL individual, pay support... orders an individual a child support. ., guilty . does not the individual is individual abrogate felony,” no traditional common-law de reflects intent impossibility. and the fense Our decision Jenkinson common-law impossibility recognizing principles form matrix within the defense “ Legislature given Legislature ‘the which the enacted MCL 750.165 presumed judicial interpretations existing law when is to be aware of ” Lowe, 718, 729; passing legislation.’ People 1 v 484 Mich 773 NW2d v Likine Opinion of the Court MCL 750.165.62 Just as a defendant cannot be held criminally committing liable for an act that he or she was powerless prevent, so, too, a defendant cannot be held criminally liable for failing to act that perform was genuinely impossible for the perform. defendant

Although English Michigan common both law recognize that impossibility may be raised aas defense omission, to a crime of provides neither any particular- ized guidance regarding quantum of evidence nec- essary establish impossibility. These common-law cases impossibility establish as a defense cases in which a defendant genuinely was perform unable to or, legally required act as in the case English involving restoration of a road sea, washed away when compliance physically impossible: was However, “it is somewhat to find surprising that if impossibility in the modern context is examined more closely, position its confused and its function unclear.”63

In considering parameters of the impossibility defense, we find instructive the United States Supreme Court’s decision Bearden v Georgia,64 which consid- ered constitutionality revoking a criminal defen- dant’s probation for failure to pay Bearden, a fine. In the petitioner was ordered to fine and $500 $250 in restitution as conditions probation.65 of his He was (2009), quoting City Woodhaven, Ford Co v Motor (2006). 439-440; 716 NW2d 247 argument, Attorney At oral General conceded that the common- impossibility law defense of charged remained available to a defendant felony nonsupport but stated that none of these defendants establishing impossibility. “come[s] even close” to 63 Smart, responsibility failing impossible, Criminal doto 103 L (1987). R Q Georgia, 660; Bearden 461 US L S Ct 76 Ed 2d 221 (1983). 662. Id. at MICH 367 Opinion of the Court despite repeated job and, efforts, his

then laid off from petitioner’s the to other work. When find was unable remaining payments late, the revoked his state were paid probation balance. The he had not the because hearing probation-revocation indicated the record from employment petitioner to find unable had been that the held that if a The Court no or income.66 and had assets penalty appropriate for a to is be fine determined solely “imprison person a be- crime, cannot the state pay Rather, there to it.”67 cause he lacked the resources findings the defendant was must be “evidenceand responsible .. .”68 Bearden for the failure . somehow sentencing for to consider reasons directed nonpayment courts carefully “inquire into the reasons for pay”:69 the failure distinction, nonpayment, for based on the reasons This probationer has importance If the

is of critical here. has willfully fine restitution when he refused to using perfectly justified pay, State means imprisonment to enforce collection. Simi as sanction larly, probationer’s to make bona fide failure sufficient money in order to employment or borrow to seek efforts may concern reflect insufficient or restitution fine society In paying the he for his crime. such debt owes revoking situation, justified in the State is likewise pen using imprisonment appropriate as an probation and offense.[70] alty for the probationer “if the has made all

Bearden indicated that yet restitution, fine or reasonable efforts own, it is funda- cannot do so his through no fault mentally probation automati- unfair revoke 66 Id. at 662-663.

67Id. at 667-668.

68Id. at 665. Id. at 672. omitted). added; (emphasis Id. at 668-669 citations v Likine Opinion of the Court cally.. . .”71The Court held that a “lack pro- fault justifies vides a ‘substantial reason or mitigates which the violation’ and makes inappropriate.”72 revocation recognize that

We Court Bearden dealt with probation revocation for of a nonpayment fine, as case, to the opposed at issue this but are guided by we the Court’s reasoning, which into inquires and considers an individual’s efforts make a legally required Thus, hold payment. we an impossibility establish felony nonsup- defense for port, a defendant must that show he or she acted good faith and made all reasonable to comply efforts with the family order, could but not do so through no fault of his her view, own. In our “sufficient bona fide efforts to employment seek money borrow pay” order certainly are but expected, standing alone will not necessarily establish impossibility an defense under Instead, MCL 750.165. defendants charged with felony must make all reason-

71Id. at 668. 72 The largely formulation articulated in Bearden is consistent with Generous, at Dods 323-324: necessity pleaded [T]he nature [must] of the be such as the law respect; may

itself necessity would for there abe which it would necessity act, previous not. A created man’s own a fair knowledge consequences follow, that would and under power controuling, circumstances which he had then a of is of that nature. Moreover, party placed practicable [must have] who was so all used already endeavours to surmount the difficulties which formed that

necessity, and which on fair trial he found insurmountable. I do man, not mean all the endeavours which wit of as it exists in understanding, might suggest, the acutest may but as such rea- sonably expected be degree from a fair of discretion and an ordinary knowledge [Id. 324.] of business. at 492 MICH367 Opinion the Court disposal, all at their and use resources efforts, able obligations. payment For support with their comply impossible, a defendant truly to be child reasonably possible, all the and eliminate explore must required the revenue obtaining lawful avenues must not order. Defendants with the comply are they pay, cannot but theirs only establish that in which it was not rea- cases among exceptional Apay. the resources sonably to obtain possible efforts reflects to undertake those defendant’s failure the debt”73one owes paying “an insufficient concern for re- from the individual’s child, one’s which arises a parent. as sponsibility has determine whether a defendant established

To case, felony nonsupport in the context of a impossibility only, a nonexhaus- purposes we for illustrative provide, These for courts to consider.74 should tive list factors has diligently sought include whether the defendant can secure addi- whether the defendant employment; whether the job; such as a second employment, tional liquidated; be defendant has investments can gifts or received substantial whether defendant has inheritance; whether the defendant owns home refinanced; has can be whether the defendant that collateral; that sold or used as loan assets can be prioritized the the of child payment whether defendant nonessential, or luxury, over the purchase items; and whether the defen- extravagant otherwise guard precautions against has taken reasonable to dant her arranged and his or finan- financial misfortune has mind, in in accor- contingencies cial affairs with future 73id. family inquiry at is defendant’s conduct Relevant this documentation, including providing appropriate proceedings, order, family compliance which discuss later with the court’s we will opinion.

this Likine Opinion of the Court parental dance with one’s responsibility to one’s child.75 existence unexplored possibilities generating for income for of the payment support sug- court-ordered gests that a defendant has a impossibil- not raised true ity defense, merely but an of inability assertion to pay. A failure defendant’s to explore every reasonably pos- sible avenue in order his or her support obliga- exclusive, This list is not intended to be exhaustive or but instead may sets forth that factors courts to consider use whether defendant charged presented might under MCL 750.165 has evidence that demon genuine impossibility. emphasize inquiry strate We that the factfinder’s impossibility scope into the an basis for is claim broader in than that by “inability pay.” Inability pay may necessitated a mere claim of be evidentiary impossibility that can factor be used of an defense, but, standing alone, impossibility. it is insufficient to show For example, documented, by evidence that or corroborated whatever available, may means be that the all defendant has exhausted of his or (or resources, monetary possess her does not has been unable to find a buyer against) pledged for or could lender assets that be sold or to obtain satisfy support obligation, means to all has made reasonable employment satisfy support obligation may, efforts to secure in the persuasive evidence, contradictory satisfy absence of require the strict impossibility recognize ments of the defense we here. provide view, To example, person an illustration of an extreme our unexpectedly hospitalized surgery may who was emergency or underwent exacting impossibility if, be able to meet the standard defense through person’s own, physically no that fault of he or she could not or financially support payment. Williams, make the court-ordered See Law, 240, p physical § (discussing impossibility). Criminal We under- score, however, unexpectedness that this must some involve element of beyond truly circumstances defendant’s control make that it impossible Thus, support obligation. who, knowing to meet one undergo major surgery he or may debilitating she is about to have consequences, steps nevertheless takes no that a to ensure known support obligation period during is met of convalescence will be differently suddenly injured situated unexpectedly from one who is incapacitated. See, e.g., Bamber, (referring at 287 an “act of QB sea). causing God” encroachment What will sufficient be impossibility given depend establish in a case will on the individual particular defendant, neglect, passivity, circumstances of the but plan parental obligations failure to financial will not excuse neglected parental responsibility. 492 Mich 367 404 Opinion the Court of paying concern “an insufficient only reflects not tion an insuf- reflects it also society,”76 debt he owes instances, In those the child. concern for ficient impossibility of the invoke the shield may not defendant defense. DEFENSE THE IMPOSSIBILITY OF ASPECTS

E. PROCEDURAL NONSUPPORT FELONY TO parameters the substantive explored Having consider- defense, procedural we turn to impossibility jury to a To be entitled invocation. its governing ations defense,77 a defendant this affirmative instruction on from which facie evidence prima present must genuinely it was could conclude finder of fact as support, defendant for the impossible III(D).78 however, If, no reasonable part described facts adduced from the fact could conclude trier of then the truly impossible, was payment Assuming to the instruction.79 not entitled defendant is and is showing this threshold has made a defendant may be instruction, the defendant then to an entitled defendant fact finds that the if the trier of exonerated 76Bearden, 461 US at 668. justify but to excuse or the crime seeks An defense admits affirmative People negate specific of the crime. elements It does not

its commission. (1997); People 15; also Lemons, see 246 n 562 NW2d 454 Mich v (1994) (Boyle, J., 278, 319; concur Pegenau, 523 NW2d 325 447 Mich v criminality (“[A]n the facial ring) in effect concedes affirmative defense ....”). justification excuse presents a claim the conduct 228, 230; Ohio, L Ed 2d 267 107 S Ct 480 US Martin v See (1987) producing placing evidence (upholding the burden Ohio statute defendant), Dupree, at 486 Mich supporting an affirmative defense on Lemons, 709-710, 454 Mich at 248. (“A (1995) 61, 81; trial court Mills, 537 NW2d 909 theory], except give requested [for a defense required instruction is evidence.”). supported by theory where People v Likine Opinion op the Court the by preponderance has established80 of evidence81 it for him or her to genuinely impossible was the court order for each and comply family every with within the relevant charging period.82 violation Clearly, record of the the defendant’s conduct and family in the court is responses proceedings relevant determining compliance the of with the possibility order and is evaluating good- relevant to the defendant’s faith efforts. and in addition to Consequently, any other evidence, relevant both the defense and the prosecution on may rely evidentiary family the record from the court proceedings. example, For evidence that the defendant was not truthful in the family court or that the proceeding assets, defendant hid provide failed to accurate documen- tation of the resources and assets at or disposal, his her was voluntarily unemployed underemployed, failed to exhaust all reasonable and generating lawful means of the necessary income the satisfy support obligation, or timely family failed to seek modification of the order court 80 law, proving At common the burden of an affirmative defense rested York, 197, 202; on the defendant. Patterson New 432 US 97 S Ct (1845). (1977); York, L53 Ed 2d 281 Commonwealth v Mass 93 4 50 See Blackstone, p *202: justification, And all these circumstances of excuse or allevia- tion, out, upon prisoner it is incumbent the to make the jury: satisfaction of the court the latter of whom are to decide alleged proved actually the

whether circumstances are to have existed; former, they away mitigate how far extend to take guilt. Supreme upheld constitutionality The United States Court has of requiring prove long a defendant an affirmative defense as the as disproving any defendant the burden does not have of the elements by Patterson, included in its of the state definition crime. See 432 US 210; Martin, Although prosecution prove at at 232. US must beyond doubt, elements of the crime a reasonable the defendant bears the proving preponderance burden of the affirmative defense Patterson, 206; Martin, evidence. at 432 US 480 US at 232. (2006). Monaco, 48, 56-57; People v NW2d 492 MICH367 Opinion of the Court performed it that it could not be

when became evident combination, any defeat claim that it was may, singly or the court comply for the defendant to impossible order. of how evidence from the description

Given our used, may obviously be family proceedings we Attorney with the General’s contention that disagree amount a family court’s determination what paying precludes defendant a defendant capable asserting impossibility from as a defense to nonsupport proceeding. Although in the criminal charge criminal flows from a defendant’s order, noncompliance family with the court’s proceeding felony nonsup- the criminal on family is and distinct from the court port separate Therefore, proceeding. family the outcome of the court does not a defendant in a proceeding simply preclude criminal proceeding felony for from assert- nonsupport ing impossibility By as a defense.83 the same the logic, criminal does not a defendant proceeding provide with the to attack the or opportunity legitimacy accuracy of family the support validity court’s order or the of its In the underlying findings.84 family court proceeding, the support amount of ordered is determined under the “preponderance of the evidence” standard. Neither the order nor evidence of a defendant’s failure to family introduced court proceedings, singly 83 See, e.g., Feiock, 624, 627-629; Hicks ex rel Feiock v 485 US S108 Ct (1988) (accepting L Ed 2d the state court’s determination ability comply that with a court order is an affirmative defense rather contempt); Barber, than an element of the offense of Davis v 853 F2d (CA 1988) (finding process 1427-1428 no violation of due when put proof the state the the burden of on defendant to show financial case). in a criminal 84 Michigan permit law the does not retroactive modification of 552.603(2); Malone, 280, 288-289; App MCL v orders. Malone (2008). 761 NW2d 102 Likine Opinion of the Court beyond a reasonable doubt together, proof establishes guilty Rather, that a defendant is of nonsupport. of addressed felony nonsupport only because a it the full proceeding, panoply in a criminal invokes any criminal protections constitutional inhere are in civil fam- prosecution, simply inapplicable which ily proceedings.

In proceeding, a criminal the defendant has a constitu- right prosecution prove guilt tional to have the his or her beyond jury a reasonable doubt to have determine innocence, as merits guilt his or her well as the defense, if in accordance impossibility applicable, are fundamental proof. protections standard of These jury Supreme to a defendant’s to a trial. As the right Court Stevenson v United States: stated upon subject long [S]o [of as there is some evidence guilty manslaughter rather whether the defendant was murder], weight proper given to be it is for the than any jury If there evidence which tended to determine. were defense], might [support a state of facts as show such jury say proper question it whether then became for might appear were true .... The evidence the evidence simply overwhelming [the the court to be to show defen guilt], yet, long dant’s so as there was some evidence defense], credibility [the relevant to the issue of jury, be and cannot be such evidence must force court.[85] matter of law for the decision Indeed, the defendant’s version of right present “the prosecution’s jury as well as the to the so it facts may decide where the truth lies”86is fundamen- equally strict-liability in a for the prosecution tal offense once the defendant has crossed the felony nonsupport 85 States, 313, 314-315; 839; Stevenson v United 162 16 S Ct 40 L Ed US (1896) added). (emphasis Texas, 1920; Washington L Ed 2d 388 US 87 S Ct (1967). 492 Mich 367 op

Opinion the Court high evidentiary required present threshold impossibility jury. affirmative defense of to the emphasize nothing opinion today We our validity family proceeding undermines the court in setting support. or its role the amount of child We simply wish to make clear that different procedural safeguards family proceedings exist than in the criminal proceedings may flow from the family and that cognizant court’s orders courts must be these distinctions.

1. APPLICATION TO LIKINE case, In this Likine raised and preserved impos- sibility defense in the circuit court. Accordingly, we this preserved review claim of constitutional error to determine party whether the from benefitting the error beyond has established that it is harmless a reasonable doubt.87 introduce, evidence that Likine sought which

the circuit court allow, did not relates to her mental illness, incapacitation, disability. This evidence —if to, submitted by, believed a jury might establish — impossibility. circumstances, Under and on the record, current undeveloped state we cannot conclude that the error beyond was harmless a reason- able doubt. We therefore reverse the judgment of the Court of in this Appeals case and remand Likine to the circuit court for a trial. new

2. APPLICATION TO PARKS Parks neither asserted nor an im- sought assert possibility defense at his criminal trial for felony non- Carines, (1999). People v 597 NW2d 130 750, 774; People v Likine Opinion of the Court support. He asserted for the first time in the Court of Appeals that his a defense to the was charge felony nonsupport, although and he cited recognizing impossibility caselaw as a common-law de- fense, clearly he failed to an impossibility assert defense at his trial. Accordingly, unpreserved we review this claim of constitutional plain error for error affecting substantial in right.88 case, Under the facts this we say cannot that plain error occurred because Parks never claimed impossible that it was to comply with his child support obligation. Therefore, we affirm judg- ment of Appeals the Court of Parks.

3. APPLICATION TO HARRIS Harris entered an guilty unconditional plea to the felony nonsupport under MCL An 750.165. guilty unconditional plea knowing is and intelligent waives claims of error on appeal, even claims of constitu- tional dimension.89 He therefore failed preserve case, constitutional issue presented this and he actually admitted the factual basis for his guilt. Accordingly, we conclude that the circuit court did not abuse its discretion refusing allow Harris to withdraw his plea, he is therefore not entitled to relief.90

IV RESPONSE TO THE DISSENT The dissent endorses an “inability pay” defense suggests that the impossibility 88 Id. at 764-765. New, (1986). 482, 491-492; 398 NW2d 358 light In of our conclusion that Harris was entitled to withdraw III(E) plea, part weight his our discussion in to be accorded to the evidentiary family proceeding, any record in the and the absence of

persuasive argument appeal regarding arrearage Harris’s brief on amount, is Harris not entitled to relief on that issue. 492 Mich 367 Opinion the Court recognized “problematic” have defense we are judgment, In our these assertions “newly minted.”91 the seven dating on caselaw by our reliance belied well-established century recognizing this teenth dissent Notably, although the defense.92 common-law defense, contest that it does not dislikes this apparently is, fact, in a defense to MCL 750.165.93 impossibility a that is Indeed, beyond dispute impossibility it is recognized centuries-old common-law defense — the Jenkinson — that attacks Michigan at least since of omission.94 It is also element of a crime actus reus impossibility our Post at 428-429. The dissent mischaracterizes course, defense, referring “impossibility-to-pay defense.” Of to it as an today, contrary recognize the impossibility that we to the defense traditional, impossibility appellation, de is the common-law dissent’s thereby inability-to- fense, and subsumes the which takes into account impos pay inquiry, the dissent. The which is the sole consideration for relating only ability sibility singular inquiry a to defense is not pay, factors surround but instead considers several relevant ing particular a defendant’s circumstances. III(C) analyzes opinion. part The also the See of this dissent legal impossibility, and factual which is irrelevant distinction between pertains only attempt unhelpful here because this distinction crimes. 93 Thus, inability-to-pay it the dissent’s defense is its is unclear whether impossibility the defense or whether it is an additional defense to version of description inability-to- felony nonsupport. crime The dissent’s of the the (“a defense, pay post has at 436 defendant would have to show that he or she order, good-faith comply made all reasonable and efforts to with the not”), actually description impossibility similar to our of the but could is (“a defense, good supra he acted in at 401 defendant must show that or she order, family comply with the faith and made all reasonable efforts own”). through could not do so no fault of his or her but endorsing inability-to-pay Jenkinson as dissent misconstrues dissent, however, recognized deny that Jenkinson defense. The does not that, impossibility implicitly recognizes Jenkin under the defense of son, inability part analysis for this defense. Because our is standard, Jenkinson, incorporates inability impossibility like that in defense, illogical impossibility it is as a consideration of conclude, does, impossibility is unconsti the dissent that our defense as under Jenkinson. tutional Likine Opinion Court of the that MCL is a beyond dispute 750.165 crime of omission not this de- Legislature abrogated has fense.95

Additionally, agrees the dissent that MCL 750.165 strict-liability offense. the dissent return Yet would Michigan precise the law of to the state that existed Legislature amended MCL made 750.165 and before felony nonsupport strict-liability offense, contrary clear To Legislature’s intent.96 further its position, authorities, the dissent relies on out-of-state which it that Michigan only asserts demonstrate is the state that does not recognize inability to as a defense to a In felony nonsupport. support of assertion, this provides dissent a 3x/2-page-long The dissent’s observation that neither version of the provides charge merely statute defense to the states the obvious and change recognition impossi does our common-law defense bility light any statutory language of the lack of indication Legislature abrogate intended to this defense. “ 96 legislative acquiescence, highly dissent relies on ‘a disfavored ” statutory construction,’ Comm, doctrine of Nawrocki v Rd Macomb Co 33; (2000), Donajkowski 177 n quoting 615 NW2d 702 Co, (1999) Alpena 243, 261; 460 Power Mich 596 NW2d 574 its “inability-to-pay” conclusion that the defense remains intact after the just 1999 easily apply amendment to the statute. We could as the doctrine legislative acquiescence of Legislature that conclude intended to inability strict-liability eliminate as a to the defense crime of nonsupport Legislature because the took no action after the Court of Appeals’ 2004 decision in The reason the Adams. dissent reaches the conclusion, latter, only former and not can be attributed to the preference. policy Indeed, equally plausible dissent’s that conclusions can by applying be reached this doctrine demonstrates the malleable and problematic inferring legislative Legislature’s nature of intent from the precisely inaction. It is for that this reason the doctrine is disfavored. “[Sjound principles statutory require Michigan construction that Legislature’s words, courts determine intent from from its its Donajkowski, Consistently principle, silence.” 460 Mich at 261. with this recognizes because, impossibility our decision the common-law as defense III(D) part opinion, we discussed in of this there is no indication that the Legislature abrogate intended to this common-law defense.

412 Mich 367 Opinion the Court app brief on from Likine’s replicated directly footnote cited in and caselaw However, state statutes eal.97 the footnote they involve stat are because inapposite Michigan’s from materially different utes that are a closer importantly, statute.98 More felony-nonsupport claim that that the dissent’s plain makes examination as only recognize are the state not we example, not so. For simply nonsupport a defense to Virginia from which a 1924 case the footnote cites in defendant’s “absolute indeed referred to the it was contribute, then concluded ability” to but condi physical “that his mental and clearly established him to his wife impossible has made it tion In . . ." 99 since his first conviction and children ever view, impossibility like the remarkably our this sounds Indeed, to the contrary here.100 recognize defense we 52; pp compare appeal, n 4. post n Likine’s brief on 11-16 See at 437 point by the fact that several of the other states’ This is evidenced (such willfulness) as contain elements criminal statutes (such excuse”) conspicuously language that are absent from as “without discussion, opinion. this For further see note 101 of our statute. (1924) Commonwealth, 140 Va 124 SE Painter v added). (emphasis 46-225.02(d),which See also DC Code states: section, support, purposes as of this failure to child For ordered, prima facie evidence of a willful violation. shall constitute incarcerated, may obligor presumption be rebutted if the was This disability during nonsupport.

hospitalized, period had a an exhaustive list of cir- These circumstances do not constitute cumstances may presumption willful- used to rebut the be ness. rebutting the note that this statute enumerates factors for We we element contained in that statute that are similar those willfulness today. apparent that at least two states forth in our decision It is also set accurately actually recognize is more to in the footnote what referred recognize today impossibility defense like the one we characterized as an 514; State, 510, Painter, Epp 107 Nev 814 P2d 140 Va see also See (1991) language strikingly (stating, to that used in similar v Likine Opinion of the Court overstatement, dissent’s only explicitly 10 states pro inability pay vide that is an affirmative defense to Moreover, nonsupport.101 law, under Michigan the fam Jenkinson, “[o]bviously, contemplate punishing ‘the law does not a ”) (citation omitted). person failing thing to do a which he cannot do’ (“It See Ariz Rev Stat Ann 25-511B is an affirmative defense to a charge provide [failure of for one’s child] that the defendant. .. was (“It support.”); unable to furnish reasonable Colo Rev Stat 14-6-101 prosecution shall be an affirmative [for defense... to a nonsupport] owing physical incapacity good that or other cause the support....”); defendant is unable to furnish the Del Ann Code tit 1113(d) (“In any prosecution § nonsupport aggravated for criminal or nonsupport, criminal it anis affirmative defense that the accused was 609.375(8) (“It .”); provide support. unable to or . . Minn Stat is liability nonsupport an affirmative spouse [for defense to criminal proves by preponderance child] if the defendant of the evidence provide support that omission and failure to care and were with 12.1-37-01(4) (“It excuse.”); lawful ND Cent Code is an affirmative charge [of defense to a child] failure to that the defendant disability during periods unpaid suffered from a an child 2919.21(D) (“It obligation .”); accrued . . . Ohio Rev Code Ann is an charge provide adequate sup affirmative defense to a of failure to port provide . . . that adequate sup accused was unable to 25.05(d) (“It port .”); . . . Tex Penal Code Ann is an affirmative defense prosecution nonsupport] [for criminal that the actor could not provide child.”); 76-7-201(5)(a) support for the actor’s Utah Ann Code (“[I]t nonsupport charges] [to affirmative defense criminal that 948.22(6) provide support.”); the accused is unable to Wis Stat (“[Affirmative support charges] [to defenses failure to include but are inability provide child, grandchild spousal not limited to sup 20-3-101(c) (“It port.”); Wyo Stat Ann is an affirmative defense . . . person provide that adequate support....”). was unable to In addition, states, although explicitly recognizing three other ability defense, specifically recognize as an inability affirmative 35-46-1-5(d) nonsupport. (providing as a defense to See Ind Code that charges “[i]t dependent [to is a defense of a child] that person provide support”); Rogers the accused was unable to v Com 1959) monwealth, (Ky, (stating “[p]hysical 321 SW2d disability recognized and financial have been as defenses to a prosecution statute”); under the child desertion La Rev Stat Ann 14:74B(1) (providing “[p]hysical incapacity prevents which person seeking any type employment from constitutes a defense to [nonsupport]”).

414 492 MICH367 Opinion the Court when it sets ability pay considers to ily parents’ Further, not the footnote states that do the dissent includes within defense, recognize inability-to-pay specifically an but instead consider ability proceeding. parent’s the criminal This is not the to within (specifically inability pay. Cal Penal Code 270 a defense of to See same as dissent, considering, language parents’ and also cited income excuse”); lawful Elam the act or omission “is willful and without whether (1976) State, (considering App 290 “evidence v 138 Ga SE2d negate to [defendant’s] financial condition which tended as to 1(4) wilfulness”); (providing § ch that a element of Mass Gen Laws guilty failing comply child-support parent order is of a for to “wilfully having ability earning judgment and while the financial or or complied”). capacity to have explicitly ability pay, pay, to or willful failure to Other states include inability- Again, is not the same as an as an element this offense. to-pay Representative in the footnote that do defense. states mentioned explicitly recognize inability-to-pay not defense but include an ele ability knowledge part ment and also consider to as of willfulness liability (imposing criminal are Ala 13A-13-4 for Code “intentionally fail[ing] provide support person which that is able to 11.51.120(a) liability provide”); (imposing “knowing!] for a Alas Stat fail[ure], excuse, child”); provide support without lawful for the Nelke (1986) 292, 294; State, App (stating “[i]n Ark that v SW2d offense, negligent order to make out the State must show willful or inability” noting provide, and failure to not a mere failure because of holdings brought other states’ that “the cannot be about (citations omitted); intentionally willfully by defaulting parent”) and 827.06(2) liability “[a]ny willfully (imposing person Fla Stat on who fails Elam, ability provide”); provide support which he or she has the App (noting statutory requirement that the act “be done Ga at 432 ” liability); ‘wilfully voluntarily’ imposition Hawaii 709-903(a) (imposing liability “person knowingly Rev Stat when a provide”); persistently provide support person fails to which the can State (1996) Krumroy, 794, 800; (considering App 22 Kan 2d 923 P2d 1044 noting Krumroy “[t]he Kan Stat Ann 21-3605 and that issue of whether just support his excuse or without cause is failed to child without lawful provide determining broader than whether he had sufficient income to 10-203(a) Ann, support”); (stating parent “[a] Fam Law that Md Code may willfully provide support of her not fail to for the his or minor child”); felony liability “[a]ny parent (imposing Miss Code Ann 97-5-3 wilfully neglect provide shall or refuse to for the who desert children”); Ann maintenance of or her child or NH Rev Stat 639:4 his knowingly (stating person guilty non-support person “[a] if such v Likine Opinion op the Court the child support obligation in the place.102 first

After legal analysis, this flawed the dissent posits what appears primary to be its objection opinion: to this its claim that our impossibility standard “offends tra- ditional notions of fairness and common sense.”103In our judgment, view, ours, it is the dissent’s “offends traditional notions of fairness and common provide support.. person provide”); fails to . which such can NJ Stat Ann (providing liability person “willfully 2C:24-5 for criminal for a who fails provide support provide legally which he can and which he knows he is 260.05(1) obliged provide”); (providing to NY Penal Law for criminal liability nonsupport person for a for who “fails or refuses without lawful provide support so”); excuse to for such child when he or she is able to do McMillan, (1971) 734, 735-736; App State v (stating NC 180 SE2d 35 “ by provide that adequate support ‘the failure a defendant to for his wilful, is, intentionally just child must be that he and without cause or provide adequate support excuse does according not for his child to his life, means and station in and this essential element of the offense must ”) (citation alleged proved’ omitted); be § Okla Stat tit (imposing liability parent “willfully omits, criminal a for who without excuse, lawful support”). Clearly, to furnish . . . child consideration of a parent’s ability pay, legislative prescription ability pay to to as an offense, equate providing element of the does not inability-to-pay to ability pay, part defense. An charge itself, element of to as of the criminal defense, is not the same as an affirmative whether based on an pay something else. tional is entered presumption Rather, admission of the it, inference, criminal obligation able doubt a dispositive considers 103Post at 443. family are not protections we proceedings The dissent parents’ ability and the supported by does not into evidence and that a defendant is evidence that the have of innocence or shift the burden of considers a support explained interprets multiple that mean, a reasonable inhere nonsupport. Supra order in the criminal as the dissent parent’s ability other inferences that the dissent makes from in detail that “the full rubber-stamped our “obligor guilty acknowledgment when it sets a any interpretation is able to criminal suggests, at 407. as nonsupport. proceedings proof beyond proof pay.” when prosecution” that the support obligation of our decision. That panoply that a Post at 446. This to the defendant. setting support support undercut the Nor does the family of constitu a a reason apply order court as 492 Mich op

Opinion the Court for their support provide Requiring parents sense.” affairs such their financial organize children all consistent with wholly to do so is as to be able way sense of fairness and common notions of traditional traditional no- aware, in particular are which we their chil- expected that are parents tions central well-being the make their children’s dren and the dissent criticizes Although of their lives.104 priority rarest of “only complains approach our impossibility,105 able to demonstrate will be persons” that, consistently intend exactly point. is We 750.165, who fails to court- parent MCL exacting standard must meet an ordered child defense.106 genuine impossibility to demonstrate “heav[il]y” majority relying public on accuses the The dissent injected policy policy,post that has these at 443 n but it is the dissent contrary asserting opinion that our concerns into the discussion principal analysis sense. Our traditional notions of fairness and common language plain the statute and policy-based, is based on the is not but Legislature abrogated the indication that the the fact that there is no felony- impossibility when it enacted common-law defense of might Clearly, tried to articulate what have statute. we have striking neglect” Legislature’s “refuse or rationale for been the statute, might language project our own what constitute from policy preferences. 105Post at 443. Legislature’s any explanation decision to If were needed for authority felony nonsupport undisputed as a strict- to define exercise its police liability thereby “regulateQ the state’s crime and conduct under 187, Quinn, promote good,” it could be found power 440 Mich at social report Michigan-based to address “the need for of a task force formed in support requiring parents their own better enforcement of the laws children____” Force, Underground Economy Underground Task The (June 8, <http://courts. 2010), p Economy available at (access michigan.gov/scao/resources/pubhcations/reports/UETF-2010.pdf> 2012). force, 15, and now chaired former Justice ed June This task “the Department documents of Human Services Director Corrigan, Maura accept many parents th[eir] inherent now refuse to sad truth that far too substantiating support The numbers responsibility their children.” Id. territorial, “[f]ederal, state, Every year, and staggering. truth” are this “sad v Likine Opinion of the Court to articulate great lengths gone we have While to demonstrate must meet defendant standard protests dissent defense, the impossibility genuine de- inability-to-pay a vague describe proceeds to then impossi- echo our terms that fense that described However, inability-to-pay the dissent’s bility defense.107 parents’ just inherent governments spend $5.9 billion to enforce local support In the United States obligation to their children.” Id. at 11. Support En- of Child Department of and Human Services’ Office Health 610,000 reported Michigan than child cases more forcement arrearage $9.1 at See Child due and calculated the total million. had arrears Preliminary Report, <http://www.acf. Support Enforcement FY 2010 hhs.gov/programs/cse/pubs/2011/reports/preliminaiy_report_fy2010.html> (accessed 2012), Moreover, total Tables P-18 and P-20. this June arrearage it not take greatly the true because does underestimates support parents if owe into account how much additional child would Underground they fully honestly See disclosed their finances. Economy at 12. Underground Economy report Task details this Force the strain public, concluding: problem places social on children and the serious [Wjhile willfully neglected children has contin- the number help increase, governments’ ability to has ued to our them inversely have declined. correlated trends created intoler- Those governments. longer Weno can able stresses for both children socially parents financially excuse who will afford —either not —to added).] (emphasis [Id. at children. their dissent, considerations, completely ignored by the make These which are felony nonsupport Legislature’s as a clear that decision to define strict-liability nothing perfectly and that there is crime was reasonable remotely fairness and sense” offensive to “traditional notions of common Legislature’s exacting impossibility or in in the decision this Court’s defense. light similarity language In and that of the between our dissent, summary opinion, it see in note 93 this is unclear how pass reasonably impossibility can assert that our standard fails to dissent Clearly, agrees dissent our conclusion constitutional muster. liability. imposes Yet the dissent asserts that

that MCL 750.165 strict “[a]bility-to-pay constitu determinations made in a civil cannot tionally establishing used that a defendant was able to be as the basis However, ability pay in a Post at 447. is not criminal case.” Further, have, we like the Michigan’s statute. element Mich 367 op Opinion the Court

defense lacks both the structure and breadth of view provide. view, that Apparently, we the dissent’s is charged relevant consideration whether individual felony money with has in his or her any on the he or pocket day she is haled into court.108 However, the permit dissent’s rule would parents who deliberately support refuse to child to shirk their responsibilities to their children and manipulate the justice criminal with result system, taxpaying that citizens will responsibility bear the of these supporting children, rather than the parent, who to be ought primarily responsible.109 protests The dissent that un- dissent, recognized felony nonsupport that criminal a action for does not underlying support disturb the order that forms basis of the criminal charge. emphasize felony nonsupport We the criminal action for is not an opportunity underlying support order, point to revisit the terms of the a agrees. support dissent which the The amount of child is determined in the proceeding, parent’s civil which income and financial resources are parent good outset, A considered. who is honest and acts faith from the support obligation, and, or her changed meets his in the instance of financial circumstances, timely order, support moves for modification is with, unlikely charged of, guilty to be nonsupport. much less found Thus, the dissent’s concern that the effect our decision will be to create prisons” affecting “willful, recalcitrant, “debtors’ those other than the deceitful,” obdurate, 441, 445, simply post any event, at is unfounded. In today, speculate is regarding such a case not before not us we need facts presented. provide guidance avoiding We have strived to criminal punishment parents change financial whose circumstances after their ability Thus, has been determined and a order entered. point escaped any that seems to have dissent—that to a defense felony nonsupport must be assessed on the basis of some consistent and legislatures articulable standard —was not overlooked either the today. enacted the statutes the cites or dissent the defense we articulate here The jssent’syiew meaningless family also Would render court’s imputed potential support obligation may income determination. A child imputed parent voluntarily be calculated based on income “when is unemployed underemployed, ability or has an unexercised to earn.” 2.01(G). set, obligation 2008 MCSF the child Once and the parent avoiding comparable employment chooses to continue that he or v Likine Opinion the Court be found standard, a could person impossibility der our “because, he or although felony nonsupport guilty of utterly not have been might it pay, unable to she is manage to known how had he or she to impossible We can exactly point. Again, this is money better.”110 not excuse defense that does about a nothing find unfair their obligation their inherent from parents child pay” are “unable they simply child because when, over the course day a particular on finan- selfish irresponsible, have made life, they child’s for their a lack of concern that reflect cial decisions of deci- when, as a result these well-being and child’s charge. a sions, likely public child is to become parental dissent, question our view of the Unlike the to endorse the obligation leads us responsibility felony nonsupport. defense to a impossibility ap- the dissent’s defense differs from Our impossibility regarding how guidance we provide because proach level, and at the circuit court adjudicated defense is be factor that we ability is one parent’s although sum, In consider, consider other factors. we also impossibil- within the inquiry is subsumed ability-to-pay is consistent ity interpretation defense. Our plain language and with the centuries-old common law , 750.165, Michigan’s nonsupport statute. MCL V CONCLUSION held that correctly v Adams conclude that We because it does not liability strict imposes MCL 750.165 (the imputed very capable performing that income was reason she is “inability pay” place), parent simply claim an can the first liability. have escape ill-advised scheme would The dissent’s criminal sought society Legislature precisely that the the effect on children support. system parental by enacting prevent of court-ordered at 443. Post 492 MICH367 Dissenting Opinion Marilyn Kelly, J. rea, require mens and that evidence of a defendant’s pay, more, without is not a valid defense to a charge of felony However, nonsupport. we hold that a defendant charged with felony nonsupport may, in exceptional circumstances, on making the requisite evidentiary showing, establish impossibility as a de- to a charge fense of felony nonsupport.

In summary, having concluded that Likine preserved claim this of constitutional error and that the prosecu- tion has not shown that the error harmless, was we reverse her conviction and remand the case to the circuit court for further proceedings. Because we con- clude that Parks is not relief, entitled to we affirm the judgment of the Court of Appeals that case. Lastly, Harris entered an unconditional guilty plea, which affirmatively waived the issue, defense at and he is therefore not entitled to relief.

YOUNG,C.J., and ZAHRA, MARKMANand JJ., concurred Mary Beth Kelly, J. Marilyn Kelly, J. (dissenting). majority The advises that its parental view of responsibility and obligations leads it to adopt a new defense to the charge of felony nonsupport, the defense of impossibility pay. to I share the majority’s view of the responsibilities and obliga- tions of parents. But there is an important difference between It us. lies in our respective interpretations of what defense MCL 750.165 allows a parent facing imprisonment failing to pay child or spousal sup- port. For I describe, reasons will I believe that the children, interests of as well as of all other members of society, are best served by providing a more traditional defense. I propose the almost universally accepted de- inability fense of pay. to Likine by Marilyn Opinion Dissenting Kelly, J. the basic are about essence, these cases

At their functions ensuring government that of judicial task federal constitutions. state and of our scope the within in undertak- been conscientious have sister states Our of and the District of them Forty-nine ing this task. inability defense of the provide Columbia as an element ability a defendant’s consider wisdom Conventional felony nonsupport. the crime Court should Michigan Supreme that the suggests question when it considers the same defense adopt It has not done so. time. for the first national norm rejects the Instead, majority inability does It concludes the trend. bucks The felony nonsupport. a defense to not constitute to More- pay. impossibility demonstrate defendant must majority’s protestations over, notwithstanding the sub- defense is not inability-to-pay contrary, The pay. of impossibility this defense sumed within But inability pay. will indeed consider majority part on the whatsoever be shown any should fault defense will accused, majority’s impossibility-to-pay strongest evidence entirely disregard the standard, unique at once I this believe pay. I also harsh, counterproductive. manifestly prove will it is unconstitutional. believe the intent of I to be faithful to majority,

Like the wish doing In MCL 750.165. interpreting Legislature we will reinstitute so, I concerned that deeply am prisons. debtor’s institution of wisely long-abandoned to lack this concern. majority appears “analysis” supporting Furthermore, majority’s from the first defense is flawed impossibility-to-pay its repeatedly bows it, majority In crafting page. intent. expressed Legislature’s it declares is the what majority’s posi- for justification expressed But no 492 Mich 367 Dissenting by Opinion Marilyn Kelly, J. tion is to be found anywhere any statute. For all of reasons, these I respectfully dissent.

I. ANALYSIS A. LEGAL BACKGROUND These cases involve the failure of three defendants to satisfy court-ordered child support obligations. MCL 750.165 criminalizes such conduct.1 It provides, in rel- evant part:

(1) If the court orders individual support for the individual’s former spouse, or current or for a child of individual, and the individual support does not in the amount or at the order, time stated in the guilty individual is of a punishable by imprisonment years for not by more than 4 a fine of not more than $2,000.00, or both. (2) apply This section does not unless the individual pay support appeared in, ordered to received notice personal of, service the action in which support order was issued.

(4) may The court suspend the sentence of an individual convicted under this section if the individual files with the court a bond in the amount and with the sureties the court requires. minimum, At a the bond must be conditioned on compliance individual’s support with the order. If the suspends a sentence under this subsection and the comply individual does not support with the order or bond, another condition on the may the court order the noteworthy I find it responsible that those publishing Michigan’s appropriate statutes caption found it provision this in terms of penalizing (2004 pay. See 2 Michigan Public & Local Acts of refusal Session), 570, p (“Refusing PA children”); wife or (“Refusal see also pay support MCLA 750.165 for former or current spouse”) children”). (“Refusing and MCLS 750.165 wife or People 423 Likine v by Marilyn Opinion Dissenting Kelly, J. why court should appear cause the individual to show the bond. After the impose and enforce the sentence impose may or the hearing, enforce the bond the court filing sentence, both, may permit the of a new bond or or again suspend the sentence. MCL 750.165 majority I agree with Although offense, accused of liability persons forth a strict sets constitutionally guaran- still have As federal, a defense.2 present teed both state right, this recognized, Court has Supreme the United States principle: on a bedrock constitutional guarantee rests Amend- Due Process Clause of the Fourteenth “Under the ment, comport prevail- must prosecutions criminal inter- long of fundamental fairness. We have ing notions that criminal require of fairness to preted this standard meaningful opportunity defendants be afforded a However, majority se- complete defense.”3 present constitutionally protected an accused’s verely narrows It felony nonsupport. of “complete charges defense” It is this showing impossibility pay. of requires I exception. conclusion to which take Ditton,4 v the Court of years ago People Thirty-five an earlier version of MCL 750.165.5 Appeals considered 2 13, 17, Const, XIV; §§ and 20. US Ams VI and Const art See 479, 485; 2528; Trombetta, 81 L Ed 2d v 467 US 104 S Ct California (1984). (1977). Ditton, App Mich 261 NW2d 182 decided, provided: was MCL 750.165 When Ditton divorce, separate any decree or decree of Where in state, by during granted in this or order entered maintenance pendency any proceedings, personal is had if service such any upon upon minor child the husband or father children, age years, or father of 17 or such husband under proceedings appearance in such either as shall have entered an pay defendant, plaintiff such husband to the court shall order any the court for the to the clerk or friend of amount by any physical any or mental wife who reason of wife or former 492 Mich 367 Dissenting Opinion Marilyn Kelly, J. The defendant argued that his barred prosecution his under the argued statute. He further that the trial court had by failing erred to instruct jury that it must first find that he was able to support ordered. Only then could it find that he had neglected to it. The Court of Appeals agreed. It concluded that MCL 750.165 did not expressly provide for the defense of inability to pay, Michigan “[o]ther but criminal nonsupport statutes it necessary [made] to show defendant’s ability to a pay” precursor as a obtaining conviction.6

The Court also noted that in contempt proceedings, a party charged with paying child support must be al- lowed to explain why the support order had not been “ obeyed and only wilful, ‘the the recalcitrant, obdurate or deceitful’ . . . are not excused from their legal obligations.”7 Therefore, the Court concluded, the trial court erred when it ruled that the defendant’s ability to pay was irrelevant.8 support herself, affliction is unable to pay any or father to amount to the support clerk or friend of the court for the of such children, minor child or and said husband or father shall refuse neglect or such amount at the time in stated such order Michigan, and shall leave the state of said husband or father guilty felony: Provided, shall however, be of a any If at time before sentence he shall people enter into bond to the of the Michigan, state penal surety such sum and with such or may fix, sureties as the court comply conditioned that he will decree, with the terms of such order may or then the court suspend further, upon sentence therein: Provided That failure person comply of such ordered should or for undertaking may with said he be appear why before the court and show cause sentence imposed, whereupon may pass sentence, not be the court good may modify cause shown the order and take a new

undertaking proper. suspend may just further sentence as be 6 Ditton, App 78 Mich at 614-615. 617, quoting Reed, 625, 627; Id. at App Reed v 220 NW2d 199 (1974). 8 Id. at 617. People v Likine Dissenting by Marilyn Opinion J. Kelly, in effect The version of MCL 750.165 now was earlier and is similar to the version. enacted comply current criminalizes failure to The version still obligations specifically indicates support with maximum for violations of the statute. penalty history purpose indicates that legislative language and gender-neutral was to enact revisions suspend a sentence authority courts with provide Agen The Senate Fiscal under certain circumstances. that the revisions cy’s analysis stated reenact, gender-neutral language, delete and would making pay support provision of the Penal Code refusal to bill, felony. felony,punish- order a Under the it would be by up years’ imprisonment, four a maximum fine of able $2,000, both, subject person for a to a court order for spousal support, or child to fail to in the felony amount or at the time stated the order. The provision apply person not would unless the ordered support appeared in the action in which the order issued, by personal was notice of that action received (The proposed penalty is the service. same as estab- penalty lished in the law for a for which a specified.) otherwise suspend person

The court could of a the sentence under the if he convicted bill or she filed with the court a bond in the amount and with the sureties the court minimum, required. At a the bond would have to be person’s compliance conditioned on the with the person comply order. If the did not with the order bond, the the another condition of court could order the why person appear to and show cause the court not should impose the sentence and enforce the bond. After the hearing, impose the court could enforce the bond and/or sentence, permit filing or could of new bond sentence.[10] again suspend the 9 PA See 1999 152. 10 12, 1999, Analysis, p Bill HB Senate October 1. 492 Mich 367

426 by Marilyn Dissenting Opinion Kelly, J. enacted the current version of Legislature When 750.165, permitted MCL Ditton had defendants to raise inability-to-pay felony nonsupport charges an defense to 22 Yet that defense preceding years. for the was PA by Legislature presumed addressed 1999 152.11The is law, including of our courts.12 Its know decisions to Ditton is acquiescence consistent with the intent continue to to raise an inability-to-pay allow accused defense.13 fact, Adams,14

Notwithstanding that v People of Appeals strayed Court from Ditton held that the 11 majority point “any The claims that I that miss defense to charge felony nonsupport of must be assessed on the of some . . . basis standard!, legislatures which] articulable was not overlooked ... (emphasis [I] citef] that enacted the statutes . ...” Ante at 418 n 108 omitted). (1) majority referring my It is unclear whether the is citation every inability of other state’s consideration of a defendant’s (2) opinion note 52 of this the current and former versions of Michigan’s majority referring every statute. If the is other state’s inability pay, acknowledge consideration of then it must those have decided states is a consistent and articulable majority referring standard. If the is to the current and former versions Michigan’s statutes, simply of then claim its inaccurate. Neither the current nor the former version MCL 750.165 has ever expressly provided felony nonsupport. a defense ato 12 City Woodhaven, 425, 439-440; Ford Motor Co v 475 Mich 716 (2006). NW2d 247 majority legislative The observes that it holds the doctrine of acquiescence deny Legislature in disfavor. Yet it cannot that the made no Moreover, holding years. effort to alter Ditton’s for 22 the doctrine of legislative acquiescence has established roots in both United States Supreme Michigan See, jurisprudence. e.g., Shepard Court and v United States, 13, 23; 1254; (2005); Craig L US 125 S Ct 161 Ed 2d 205 v Larson, 346, 353; (1989); Novi, City 432 Mich 439 NW2d 899 Wikman v 617, 638; (1982); Estate, Clayton 413 Mich 322 NW2d In re 343 Mich (1955). 101, 106-107; majority deprive 72 NW2d 1 cannot minority judges typically traditionally engage of the tools with which statutory interpretation. preferred interpretive Its methods do not Williams, bind other members of the Court. See (2012) (Marilyn J., dissenting). 194 n NW2d Kelly, (2004). Adams, People App 683 NW2d 729 v Likine Dissenting Opinion Marilyn Kelly, J. 1999 amendments of MCL 750.165 affirmatively pre- cluded a defendant from raising an inability-to-pay defense. Adams opined that the revised statute does not allow that felony defense because is a strict liability offense.15It further reasoned that the defense would be inconsistent with the provision of MCL 750.165 that authorizes suspension of a sentence if the defendant files a bond conditioned on compliance.16

Adams held that defendants are effectively precluded from raising any defense of kind to felony-nonsupport charges. I believe it was wrongly decided and should be explicitly overruled. It is unclear what the majority holds respect with to Adams. When it holds that defen- may dants present an impossibility-to-pay defense, it suggests that Adams was wrongly decided. agrees But it that, Adams’s holding if an individual does not pay court-ordered he support, or she is automatically guilty felony under MCL 750.165. Adams should be unequivocally overruled.17

15Id. at 100. 97, 750.165(4). citing 750.165(3), Id. at MCL now MCL See 2004 PA majority posits my analysis 570. The would return the law to its Legislature state before the “contrary enacted 1999 PA to the Legislature’s clear intent.” Ante at 411. This statement masks the fact statutory that no Legislature evidence exists that the intended to remove inability-to-pay recognized. defense that language Ditton Nor is there any in MCL supports 750.165 or in other majority’s statute that impossibility-to-pay By sleight pen, majority parlays defense. its reading Legislature’s of MCL 750.165 and of intent into impossibility-to-pay Thus, contrary majority’s defense. claim otherwise, analysis plain language there can be no “based on the of the statute,” provides ante at 416 n because MCL 750.165 no defense to nonsupport. merits, Rather than majority limit its discussion to the claims my analysis Legislature’s acquiescence merely my to Ditton is “policy preference.” that, argues Ante at n 96. It after the Court of Appeals’ opinion Adams, legislative acquiescence the doctrine of could Legislature also lead one to conclude that the intended to eliminate 492 Mich 367 428 by Marilyn Opinion Dissenting Kelly, J. DEFENSE IMPOSSIBILITY-TO-PAY B. THE MAJORITY’S by adopted defense impossibility-to-pay I find the First, several reasons. majority problematic in criminal meaning has a distinct “impossibility” term categories impos- two distinguished law. Courts have Factual legal. factual and attempt in crimes: sibility per- intended to a defendant exists when impossibility commit it because crime failed to a certain but petrate beyond unknown or that were of factual circumstances his or her control.18 into two can be broken down

Legal impossibility legal impossibility hybrid subcategories: pure legal an exists when legal impossibility Pure impossibility. is that he or she believes engages actor conduct Hybrid legal impossi- not.19 by law, but it is prohibited an is to commit goal when a defendant’s bility exists of a act, to do so because impossible but it is illegal legal status some regarding mistake factual “ ver- intended conduct.20 ‘This factor relevant to the because, as the “hybrid” is a impossibility sion of effectively a defense. This is incorrect. Adams as including impossibility- nonsupport charges, precluded all defenses to majority, to-pay and it is thus unconsti- defense now sanctioned agreed Legislature with an It cannot be assumed that tutional. legislative acquiescence doctrine of does unconstitutional decision. The not fit with the Adams decision. (2001) Thousand, 149, 158; People 631 NW2d omitted). (citation example, impossibility a a factual occurs when For (9th ed), Dictionary p pickpocket picks empty pocket. See Black’s Law recognized type impossibility as a defense to has never been 824. This attempt. pure legal impossi Thousand, example, Mich at 158-159. For erroneously believing goes hunting bility person while occurs when “a (9th Dictionary ed), hunting p 824. that it is season.” Black’s Law 20 Thousand, hybrid legal impossibility example, 159. For 465 Mich at juror, attempts to bribe a but chooses someone when an individual exists jury. to bribe who is not on the v Likine Dissenting Opinion by Marilyn Kelly, J. ., . [the defendant’s] definition . implies impossibility- ”21 claim a legal aspect.. includes both and a factual . here attempt cases involved are not crimes. Moreover, factual nor legal impossibility neither I involved. the terms that their merely discuss to show has a meaning They use nuanced criminal law. could easily be newly confused with the minted majority’s “impossibility-to-pay” defense the context of nonsupport charges.22

A second problem majority’s analysis is that at it is best marginally supported by Michigan one case years ago Huron v Jenkinson.23 Jen decided — Port kinson city dealt with a ordinance that criminalized a owner’s failure to property repair adjacent a sidewalk to his property. opined The Court that legislative “[n]o municipal body power has the impose duty the performing upon any an act it person which is impos sible for him to and then make perform, his non a performance duty of such a . .”24Thus, crime .. the Court recognized that the defendant successfully could defend himself by arguing that it impossible was comply with the ordinance. However, the Court also that stated readily

[i]t will that a occupying be seen tenant a house and Huron, city lot in the poor of Port and indigent so and as to receive his neighbors, required by charitable if from (1st Id., Dressler, quoting Understanding ed), Criminal Law 27.07EB],p § 349. majority my legal impossibil criticizes discussion and of factual ity in which I apply only attempt. observe that those defenses to crimes of so, doing majority my newly In point: the underscores its fashioned impossibility-to-pay felony nonsupport to a defense could be impossibility historically applied confused with the defenses that have distinctly setting. different (1889). Jenkinson, Port Huron v 43 NW 923 24Id. at 419. 492 Mich 367 by Marilyn Opinion Dissenting Kelly, J. along the repair sidewalk city to build or authorities

the occupies, and fails premises he the in front of street criminal; becomes request, such omission comply such with may offense, be fined he and, upon conviction necessary say two sections hardly these It imprisoned. is void, and that the are unconstitutional the statute effect.[25] provisions are of no force or a defendant that when Thus, recognized Jenkinson comply unable indigent” as to be poor “so criminally pun- may not be ordinance, he or she used the Jenkinson though even Accordingly, ished. considered the once, it implicitly “impossible” word pay. inability defendant’s Jenkin- overstates majority It is apparent a much intended Jenkinson “impossible.” use of son’s If pay. akin to word, one use of broader defendant in Jenkinson it had been shown neigh- charitable from his “support could have used sidewalk, he not have satisfied would bors”26to build demon- could not have defense. He an impossibility pay. him to But impossible that it was strated ordinance unconstitutional held the Jenkinson Court failure to this apply notwithstanding the defendant’s construction toward his sidewalk charitable Therefore, majority’s impossibility-to- obligation. test established fails the constitutional standard not have in that case could If the defendant Jenkinson. defense, majority’s impossibility-to-pay satisfied that defense is unconstitutional.27 then 25 added). (emphasis 420 Id. at 26 Id. 27 English Similarly, majority’s reliance on ancient decisions questionable impossibility-to-pay is of defense of its courts ago having First, in courts were rendered centuries

value. those decisions distinguishable Second, they easily authority from are over this Court. no they impossibility in the truest dealt us because the case before v Likine Opinion by Marilyn Dissenting Kelly, J. Third, ignores majority Appeals’ our Court of in Ditton. held to inability pay decision Ditton that is a defense that must considered for be MCL 750.165 to constitutional pass majority muster.28 The fails to ex- why plain impossibility-to- Ditton would render its pay defense unconstitutional. THE

C. INABILITY-TO-PAYDEFENSE

1. MICHIGAN The proper defense to nonsupport charges, as Ditton, set forth in consists of proving that a defendant is unable to support.29 court-ordered Ability-to- (1974) Coulson, sense word. See v (failing Stockdale 3 All ER 154 existed), Regina Bamber, QB 279, to attach documents that never v (1843) (comment C.J.) 287; Denman, 114 ER (failing Lord land). Regina Hogan, build road where there was no ER (1851), inapposite. Den 277 is also case That considered a mother criminally charged momentarily leaving with abandonment after her procure scrutiny child order Hogan’s holding food for him. Closer reveals that the it appropriately defense sanctioned is more characterized inability impossibility pay. as than specifically The court noted inquiry there an that was not extensive into whether the mother had the supporting impossible means of the child—not whether it was for her to supported Indeed, opinion have him. does not contain the word sum, “impossible.” precedential In none these archaic cases furnishes a majority’s for impossibility-to-pay basis narrow defense. 28Ditton, App (finding meaningful at 617 “no distinction [MCL 750.165] between and the statute found unconstitutional defense). Kentucky” lacking inability-to-pay majority earnestly “permit insists that this defense would parents deliberately who refuse child to shirk their responsibilities manipulate justice their children and the criminal system utterly every ....” at 418. Ante This is untrue. As in other jurisdiction pay, that considers a defendant’s trial courts weigh evidence, any, would if to determine whether the defendant is pay. able to If the trier of fact determined that defendant was able to pay, apply. the defense would not It would not enable a defendant to shirk support obligation manipulate justice her his or or otherwise the criminal system. fully agree majority support obligors I with the must be held Mich 492 367 by Marilyn Opinion Dissenting Kelly, J. in legal sys- commonplace are determinations pay Jackson,30 v considered in we example, People tem. For pay for a may require a a defendant trial court whether to MCL attorney 769.1k with- court-appointed pursuant ability pay. We determining the defendant’s first out the lack of statu- notwithstanding held that unanimously aof defen- for an assessment toxy language providing be made that determination must ability pay, dant’s held that “once an required.31Wefurther payment when is the court must triggered, assessment ability-to-pay indigent and whether the defendant remains consider hardship.”32 cause manifest would repayment whether are also relevant assessments Ability-to-pay In v payments. People of criminal restitution context whether, imposing Music,33 this Court considered part probation, or costs as a sentence or restitution ability be must considered. defendant’s if a defendant again unanimously held Court costs, or the court restitution asserts ability or lack of it.34 inquire into the defendant’s must ability only suggest does caselaw that defendant’s Not determining criminality when must be considered so several statutes. MCL penalty, or but do applying of a spouse criminalizes or 750.161 desertion pertinent part: It provides, or children. however, belief, satisfying obligations.

responsible does not their This justify legitimacy inability-to-pay defense or undermine the state, every majority’s overly standard. In other those with restrictive obligations pay, responsibili- are not shirk their able refuse to justice system by raising ties, manipulate simply or criminal inability-to-pay defense. (2009). 271; Jackson, People 483 Mich 769 NW2d 31Id. at 275. 32Id. (1987). Music, People v 408 NW2d 795 34Id. at 363. v Likine Dissenting Opinion by Marilyn Kelly, J. person

A spouse who deserts and his abandons or her years deserts abandons his her children under shelter, age, providing necessary proper food, without care, clothing them, person and being for and a who of fails, ability neglects, provide or refuses to nec sufficient essary proper shelter, food, care, clothing and and for his or her guilty spouse of a his or . .. her children under 17 ^[35] years of age, Thus, a conviction under MCL 750.161 presupposes that ability defendant has the to for proper shelter, care, food, clothing members. family MCL

Similarly, provides 750.168 that person con being victed of “a disorderly subject person” is to 750.167(1)(a) varying degrees of punishment. MCL de “disorderly fines person” person as “[a] of sufficient ability who refuses neglects his or her family.”36 provision This further reflects Legisla recognition ture’s that a defendant’s ability pay must be considered before criminal imposing punishment.

Ability-to-pay determinations also serve as the un- derpinning spousal support awards, which, when violated, form the bases criminal 552.23(1) charges. provides MCL that in divorce and actions for separate maintenance, the court may also award spousal support “after considering ability of ,”37 either party pay. . . This has principle been extended to child support awards.38

2. THE UNITED STATES SUPREME COURT The United Supreme States Court has also recog- nized that statutes that punish persons for nonpayment 750.161(1) added). (emphasis MCL

36 Emphasis added.

37 Emphasis added. 38 See, e.g., Beverly Beverly, v App 317 NW2d 213 (1981). MICH Dissenting by Marilyn Opinion J. Kelly, them evidence present permitting without debts Constitution. to the repugnant

their are struck down as the Court In Zablocki Redhail,39 prohibited that statute Wisconsin unconstitutional obligations from outstanding men child obtaining granting order first a court marrying without in that could not obtain plaintiff case permission. the financial because he lacked order requisite The Court support obligations. meet resources to his process equal the statute on both due struck down Stewart, noted concurring, Justice protection grounds. indi- truly no allowance for the “law makes these deny people permission gent” “[t]o they that which failing them for to do marry penalizes the state applies indigents, Insofar as it cannot do. achieving objectives irrational means of these law is an of the State.”40 in Justice Powell

Concurring judgment, the Court’s able “persons who are to make distinguished between simply the but wish to shirk support payments required obligation” their and those “without legal moral child-support obligations.”41 with comply means inheres, not in the collection “[t]he He that vice opined in to make for those provision but the failure concept, comply child-support obliga- the means to with without Thus, he colleagues his agreed tions.”42 it statute was unconstitutional because Wisconsin unable, merely rather than those provide failed for support the child unwilling, pay owed.43 39 (1978). Redhail, 374; 673; 2d Zablocki v 98 S 54 L Ed 618 434 US Ct (Stewart, J., concurring). Id. at 394 (Powell, J., concurring). Id. at 400 42 Id. 400-401, 403. Id. at v Likine Opinion by Dissenting Marilyn Kelly, J. Likewise, United Georgia,44 Bearden States Supreme Court considered whether Fourteenth Amendment state prohibits revoking indigent from pay defendant’s failure a fine and probation restitution. The held Court that “the trial court erred in revoking automatically probation petitioner because fine, could not without determining his that peti- tioner had not sufficient made bona fide efforts to pay or that adequate punishment alternative forms of did not exist.”45The opined Court that to revoke probation when the petitioner, through own, no fault of his could fine violated due process because it was “contrary to the fundamental required by fairness Fourteenth Amendment.”46 The Court approvingly cited concurrence, Justice Zablocki Powell’s which em- phasized distinction between “persons who shirk their moral and legal obligation to . . . from those wholly unable to pay.”47 660; Georgia, Bearden v 461 US 103 S Ct 76 L Ed 2d 221

(1983). 45Id. at 661-662. 46Id. at 672-673. Zablocki, citing (Powell, J., Id. at concurring) 434 US at 400 added). (emphasis majority support cites Bearden of its impossibility-to-pay defense. But nowhere in Bearden does the word “impossible” any appear, Indeed, majority nor derivation of it. opinion internally inconsistent, itas relies on Bearden’s “sufficient guidance place, bona fide efforts” standard for in one but elsewhere “ suggests repay [to ‘sufficient bona fide efforts . ..’ obligation] standing necessarily . . impossi . alone will not establish an bility Compare Furthermore, defense ....” ante at 400 with ante at 401. implementation Court ability- this cited Bearden its of an to-pay analysis Jackson, any See at Jackson. 279-280. In event, principles applied, inability-to-pay when the from Bearden are “permit parents deliberately pay defense would not who refuse to child responsibilities manipulate to shirk their to their children and justice system criminal ... .” This Ante at 418. is because an inability-to-pay provide parent defense would relief to who “will- Mich 367 492

436 by Marilyn Opinion Dissenting Kelly, J. DEFENSE INABILITY-TO-PAY OF THE 3. APPLICATION caselaw, Michigan of the aforementioned light In Court statutes, Supreme and United States Michigan inability pay I would hold precedent, To use charge. felony nonsupport to a defense proper he or this to show that would have defense, a defendant efforts to good-faith all reasonable made she has In order, could not.48 but comply with should inability pay, courts a defendant’s considering financial situation the defendant’s carefully examine made suffi- the defendant has whether and determine However, must courts comply.49 cient bona fide efforts their willfully shirk those who distinguish between who are and those legal obligation pay moral Appeals do As our Court unable to so.50 simply in Ditton: explained her] [or take care of his [parent] can but will not

“A who ought oppression But ought coddled the law. child not be justice.... practiced in the name of law not be parent may have been ever so delinquent “The accused duty natural willing perform [or her] his and anxious to judgment but of the civil was comply the terms and to with so.”[51] wholly unable to do majority’s concern clear, I share the To be Accord- be held accountable. parents recalcitrant must legally fully efforts to make sufficient bona fide refused to or failed Bearden, acquire 461 US at 672. the resources to . ...” 48 recalcitrant, obdurate, willful, majority agree that the I nonsupport charges. escape felony should not deceitful 49 Supreme Bearden, I States US at 662. believe the United See wisely a defendant’s cast the consideration of Court recognition determination will the fact that terms in broad inquiry. generally require fact-specific (Powell, J., Zablocki, concurring). at 400 434 US See O’Harrah, Ditton, quoting App Commonwealth v Mich at 1953). (Ky, SW2d People v Likine Dissenting Opinion by Marilyn Kelly, J. ingly, defense, like the inability-to-pay impossibility- to-pay defense set forth the majority, apply would not to parents who can but choose not to take care of their children. A willful failure to is not an pay excuse for a noncompliance with order. support D. THE MAJORITY’SIMPOSSIBILITY-TO-PAYDEFENSE LACKSSUPPORT today’s With groundbreaking opinion, Michigan be- only comes the state that does not allow a defendant’s inability to to constitute a defense to a complete felony nonsupport charge.52 majority has created (“A See Ala Code 13-A-13-4 man or woman commits the crime of nonsupport intentionally provide support if he or she fails to which that person provide person legally is able to and which that knows he or she is obligated provide dependent spouse years to to a or child than less of 11.51.120(a) (f)(3) (“A age.”); person Alas Stat commits the crime of if, nonsupport being person legally charged support criminal with the of person fails, knowingly excuse, a child the provide without lawful to support having [W]ithout for the child.. .. lawful excuse’ means ability provide support....”); financial to Ariz Rev Stat Ann 25-511B (“It provide [failure is an affirmative defense to a child] to for a support.”); the defendant. .. was unable to furnish reasonable Nelke (1986) (“In State, 292, 294; App 19 Ark 720 SW2d 719 order to make out child], support [of the offense failure to or wife the State must show a negligent provide, willful or failure to not a mere failure because of (“The inability.”); court, determining ability Cal Penal Code 270 parent support child, income, including his or her shall consider all (“It gifts.”); social insurance benefits and Colo Rev Stat 14-6-101 shall he prosecution felony an affirmative nonsupport] [for defense ... to a owing physical incapacity good or other cause the defendant is unable support, care, required by section.”); to furnish the and maintenance this 53-304(a) (“Any person neglects Conn Gen Stat who or refuses to spouse guilty [a child] furnish. .. or . . . shall be deemed nonsupport... person support.”); unless . .. the is unable to furnish such 1113(d) (“In any prosecution § Del Code Ann tit for criminal nonsupport aggravated nonsupport, criminal it is an affirmative provide support....”); defense that the accused was unable DC 46-225.02(d) (“[F]ailure ordered, support, Code child as shall prima presumption constitute facie evidence of a willful violation. This 492 Mich 367 Opinion by Marilyn Dissenting Kelly, J. defense to exceedingly limited incarcerated, may obligor hospitalized, if the was or had a be rebutted 827.06(2) during (“Any disability period nonsupport.”); Fla Stat willfully provide person who fails to which he or she has the ability provide spouse person whom the knows he or she to a child or legally obligated support commits a misdemeanor of the first (1976) .”); State, 432, 432; degree App . . . Elam v 226 SE2d 290 Ga (“ convicting wilfully voluntarily abandoning of] [In the defendant his erroneously children .. . trial ruled out some of defen minor negate the dant’s evidence as to his financial condition which tended to (“A ..”); person element of willfulness . . Hawaii Rev Stat 709-903 knowingly persistent nonsupport person the of if the commits offense persistently provide support person provide the can fails to which person person legally obliged provide the and which knows the is to to a child, Shaw, 897, 900; spouse, dependent.”); or other State v 96 Idaho 539 (1975) (“[W]hether by proof beyond .. P2d 250 the state . has overcome ability provide support a reasonable doubt his to or and the wilful nature non-support omission, by of his or are all factual issues for resolution the 16/15(a)(1) (“A

jury.”); Comp person 750 Ill Stat commits the offense of support willfully, any excuse, failure to when he or she ... without lawful provide support spouse refuses to for the or maintenance of her . . his or . person ability or . . . or her child his or children... and the has the to 35-46-l-5(d) (“It provide support.”); charges [to the Ind Code is a defense nonsupport dependent person child] of of a that the accused was unable (“A provide support.”); person, being to Iowa Code 726.5 who able to do so, provide support person’s fails or refuses to child or for ward under age eighteen years period longer year of for a than one or in an greater [felony] nonsup amount than five thousand dollars commits (1996) 794, port.”); Krumroy, App v 22 State Kan 2d 923 P2d 1044 (“[The guilty failing provide support defendant] would be of to without jury ability lawful if a excuse concluded that he had the to earn a did livelihood and not do all that he could or should have done under the 1959) circumstances.”); Rogers Commonwealth, 779, (Ky, v 321 SW2d (“Physical disability recognized and financial have been as prosecution statute.”); a defenses to under the child desertion La Rev 14:74B(1) (“Physical incapacity prevents person Ann Stat which a from seeking any type employment of constitutes a defense to of (“A 17-A, neglect family.”); person § criminal of Me Rev Stat tit is guilty nonsupport... knowingly provide support if he fails to which he by capacity property provide is able means of or for labor to and which he legally obliged provide spouse, knows he is to child to or other 10-203(a) (“A person....”); Ann, parent may Md Code Fam Law not child.”); willfully provide support fail her for the of his or minor Mass 1(4) (A 273, spouse parent guilty felony § ch Gen Laws or shall be of a if v Likine by Marilyn Dissenting Opinion Kelly, J. legislature any or other recognized by any charges not earning having ability “wilfully or and while financial he or she judgment complied, comply with an order or capacity to have he fails 609.375(8) (“It is support entered ...Minn Stat which has been for liability nonsupport spouse [for defense to criminal an affirmative proves preponderance evidence that the child] if the defendant provide support care and were with and failure to omission lawful excuse.”); (“Any wilfully parent Ann who shall desert or Miss Code 97-5-3 support neglect provide and maintenance of his or her or refuse to for Akers, .”); guilty . shall be of a . .. State v child or children . . 1956) (“If (Mo through App, no action of his own he Ct SW2d them, ability defendant’s] [the failure to do so was lacked the good is insufficient to sustain the without cause and evidence (“A 45-5-621(1) conviction.”); person Code Ann commits the offense Mont person person provide if the fails to can person person legally obliged provide provide and that the knows is child, dependent.”); Bright, spouse, State v 238 Neb to a other (1991) (“The 352; 470 determination of whether a defendant NW2d ability support in to determine whether the has the child order jury.”); question Epp to do intentional is a of fact left to the failure so was (1991) (“[T]he State, 510, 513-514; 107 Nev 814 P2d 1011 State could by showing ability [the defendant] ... had the establish willfulness Obviously, contemplate punish generate income .... the law does not do.”) ing person failing thing (quotation to do a which he cannot (“A omitted); person guilty Ann marks and citation NH Rev Stat 639:4 is non-support person knowingly provide support if fails to which such legally obliged provide person person such and which such can (“A provide spouse, dependent.”); to a child or other NJ Stat Ann 2C:24-5 person willfully provide support commits a crime ... if he fails to which provide legally obliged provide he can and which he knows he is to a (“Abandonment dependent.”); spouse, child or other NM Stat 30-6-2 person having ability provide dependent consists of a and means to spouse support abandoning failing for his or minor child’s 260.05(2) (A provide support dependent.”); for the of such Penal Law NY person guilty nonsupport knowingly is of a child when “he or she fails provide support or refuses without lawful excuse to for such child when ....”); McMillan, 734, App he or she is able to do so State v 10 NC (1971) (“ 735-736; prosecution support [for ‘In a failure to a 180 SE2d 35 child,] provide adequate support. the failure a defendant to .. must be wilful, is, intentionally just cause or does not that he and without excuse provide adequate support according child to his means and station for his 12.1-37-01(4) ”) (citation (“It omitted); ...’ ND Cent Code is an life . charge support [of child] that affirmative defense to a failure to a disability unpaid during periods from a child defendant suffered 492 Mich 367 Dissenting Opinion by Marilyn Kelly, J. 2919.21(D) (“It support obligation accrued .. . Ohio Rev Code Ann is charge provide adequate sup- an affirmative defense to a of failure to port provide adequate support ... that the accused was unable to or the support provide support established but did that was within the 852(A) ability means.”); (“[A]ny § parent, accused’s Okla Stat tit guardian, person custody having willfully or control . . of a child . who omits, excuse, support... guilty without to furnish ... child is lawful ...”); Timmons, 678, 681; App misdemeanor . State v 75 Or 706 P2d (“It (1985) commonly is [for understood that ‘lawful excuse’ pay support] condition, failure to refers to some not of the defendant’s making, prevents being provide own which the defendant from able to 4354(a) (“An support.”); willfully 23 Pa Cons Stat individual who fails to comply support with a order of a court of this Commonwealth when the ability comply individual has the support financial with the order 11-2-1.1(a) offense.”); (“Every person commits an RI Gen Laws iswho obligated support... willfully thereafter, child and who shall having so, guilty .”); the means to do fail to . .. shall be aof ... 63-5-20(A) (“Any person capable SC Code Ann earning a&le-bodied shall, just excuse, livelihood who without cause or abandon or fail to provide support spouse reasonable to his or her or to his or her ... child dependent upon guilty him or her shall be deemed of a misde- (“A ....”); parent meanor SD Codified Laws 25-7-16 aof minor child who intentionally support] omits without [child excuse to furnish . . . is lawful 39-15-101(a) (“A guilty misdemeanor.”); person of a... Tenn Ann Code provide support commits crime of who fails to which that person provide person duty is able to provide and knows the has a 25.05(d) spouse .”); a minor child or to a child or ... Tex Penal Code Ann (“It prosecution is an nonsupport] [for affirmative defense to criminal provide child.”); support actor could not for the actor’s Utah (“[I]t 76-7-201(5)(a) Code Ann is an affirmative [to defense criminal nonsupport charges] provide support.”); the accused is unable to (1921) Thibedeau, 164; (“Where, here, State 95 Vt A113 as neglect support, pecuniary ability is a willful respondent material.”); pay] Commonwealth, [to is Painter v 140 Va (1924) (“That 124 SE the absolute of the accused to anything family contribute to the of his should be held to bar the prosecution, temporarily, apparent at least is from a consideration of the entirety, purpose.”); act in its and its avowed Wash Rev Code 26.20.035 (“[A]ny person provide support... [w]illfully who is able to and who . . . food, provide necessary clothing, shelter, omits to or medical attendance dependent upon guilty to a child family him or her ... of the crime of 61-5-29(1) (“A nonsupport.”); person [r]epeatedly W Va Code who .. . willfully fails to his or her court-ordered which he or she can People v Likine Dissenting Opinion Marilyn Kelly, J. country.53 single recognizes Not a state proper as the defense to impossibility charges. majority’s The criticized as being decision risks chilling example judicial activism.

E. THE MAJORITY’SIMPOSSIBILITY-TO-PAYDEFENSE IS UNFAIR

My deep concern about the majority’s holding stems only from the fact that it adopts unprecedented standard without support, but also from that standard’s I potential pointedly, for deleterious effects. More fear a return to an era of prisons indigent debtors’ which individuals are imprisoned simply they because cannot meet their financial obligations.54 majority refuses reasonably provide duty and which he or she knows he or she has a to provide guilty ..”); to a minor ... of a misdemeanor .. Stat Wis 948.22(6) (“[Affirmative failure-to-support charges] [to defenses include inability child, provide grandchild spousal but are not limited to to 20-3-101(c) (“It Wyo support.”); Stat Ann is an affirmative to defense person provide adequate [of desertion] that was unable to provide person’s ability but did such as was within that means.”). (Each added.) emphasis 53 Contrary majority’s assertion, inconsequential it is at what stage proceeding of a criminal other states consider a defendant’s inability pay. defense, Some states consider it as an affirmative some as defense, require proof ability a traditional and some as an nonsupport charge. of a element The fact remains that it ais defendant’s impossible that must accounted be for—not whether it is pay. recognizes impossibility impossibility No other state as to, of, nonsupport an affirmative or traditional defense or as an element charge. Supreme explicitly prohibited The United States Court has practice prisons. See, Illinois, e.g., of debtors’ Williams 399 US (1970) (“[0]nce 241-242; 2018; 90 S Ct L Ed 2d the State has necessary satisfy penologi defined the outer limits of incarceration its policies, may subject cal interests and it not then a certain class of period imprisonment beyond statutory convicted defendants to a solely by Short, indigency.”); maximum reason of their Tate v 401 US (1971) (“[T]he 398; prohibits 91 S Ct 28 L Ed 2d 130 Constitution imposing automatically the State from a fine as a sentence and then 492 MICH367 Opinion by Marilyn Dissenting Kelly, J. that, is, it acknowledge many people unfortunate as in

experience periods they their lives when are insol- automatically vent. This fact does not render them deadbeat And it not necessar- uncaring, parents. should Poverty render them criminals. is not a criminal ily offense, and federal and constitutions guaran- our state tee the impoverished equal protection the laws.55 majority’s narrowing The severe of the available de- adequately fense to a does not safeguard principles. these

In impossibility-to-pay its effort to differentiate its defense, from an inability-to-pay majority defense a are paints picture only options which two at spectrum. extreme ends of the On one end is the defense, is, impossibility-to-pay majority which as the admits, nearly impossible to meet. On the other is the defense, majority inability-to-pay which mischarac- simple pay. majority terizes as cover for a refusal to The mistakenly inability-to-pay casts the defense as one gives carte blanche to parents cold-hearted who children, refuse to their contrary all moral decency. reality quite The is otherwise. As discussed earlier, defense, applying typically this con- siders evidence of ability pay by refusals to could pay money they those who or could raise the owe. majority also identifies the most extreme ex- of a find it ample parent impossible who would comply support obligation completely with a but blameless. It this posterizes hypothetical person as quintessential example satisfy of someone who would so, its new In impossibility-to-pay doing defense. converting jail solely indigent it into a term because the defendant is full.”) (quotation cannot forthwith the fine marks and citation omitted). Const, XIV; § Am US Const art 2. v Likine Dissenting Opinion by Marilyn Kelly, J. sends a clear our majority signal our lower courts: exists, only impossibility-to-pay defense but the rarest essence, will for it.56In persons qualify majority nearly-impossible-to-satisfy has created a defense. The practical press heavy effect of this rule is to thumb on prosecutor’s justice.57 side of the delicate scales of

In an effort to provide comprehensive guidance, the majority creates an impossibility standard that offends traditional notions of fairness and common For sense. it example, does not take into consideration defendant must have sufficient minimum resources to feed, clothe, and shelter himself herself while satis- fying a support obligation. The penniless person should not be imprisoned lacking for the to capacity prioritize his or her arrange finances to his or her financial affairs with future contingencies mind. Yet the ma- jority’s impossibility-to-pay defense would include that That person. person would be imprisoned because, although he or she is unable to pay, might it not have utterly been impossible to had he or she known how manage to money better.58 That person impris- would be because, oned unable pay, to he or she had failed to (“[A] explore See ante at 402 defendant must and eliminate all the reasonably possible, obtaining required lawful avenues of the revenue (“Defendants comply support order.”); with the only ante at 402 must not they pay, establish among exceptional that cannot that but theirs are the reasonably possible cases in which it was not to obtain the resources pay.”) (emphasis omitted); (requiring “genuine” and ante at 403 n 75 impossibility); “tru[e]” (requiring “exceptional see also ante at 420 impossibility). majority injects circumstances” to establish The further analysis by, points, labeling confusion into its requisite at various impossibility “genuine” level of demonstrated or “true.” (2012) People Vaughn, 642, 684; See 491 Mich 821 NW2d 288 J., concurring). (CAVANAGH, majority’s heavy The public policy reliance on its impossibility-to-pay surprising given past defense is reluctance of two rely policy making precedent. members to on considerations when In Comm’rs, Hanson v Mecosta Co Rd NW2d 492 MICH 367 Dissenting Opinion Marilyn Kelly, J. family court order timely modification of

“seek per- that it could not be it became evident when why no majority explanation . . . .”59The offers formed failure to seek modifica- inability coupled pay, for order, grounds impris- should constitute tion of the onment.

Furthermore, not to consider the majority seems evidence to mount a difficulty producing sufficient Proving defense. an in- cognizable impossibility-to-pay majority’s alone ability pay, satisfying let defense, complex daunting is a impossibility-to-pay astutely matter. one has observed: legal As scholar factually complex, Proving comply can be implicating obligor, the economic circumstances of the his (2002), “[the then Justice and Justice Makkman stated that YOUNG independently would be most Court’s] function is not to . .. assess what just public policy.” fair or or best Assuming public relevant, majority’s policy discussion raises instance, majority high questions. unanswered For does the consider by taxpayers imprisoning it cost borne felons? Does consider how those imprison greater extent number of those costs will increase we who support payments? report make A Pew Center fail to recent shows already highest Michigan has one of the nation’s incarceration rates and is only prisons higher spend one of four states to more on than education. The cost, States, high longer on the Time low return Pew Center served: <http://www.pwestates.org/ prison terms. June 2012. Available at: (accessed July uploadedFiles/PCS_Assets/2012/Prison_Time_Served.pdf> 3, 2012); Michigan, Budget, see also State of Executive Fiscal Years 2013 2014, A-5, February 9, pp <http:// and B-15. 2012. Available at: (accessed July www.michigan.gov/documents/budget/EBl_376247_7.pdf> 2012). Furthermore, Michigan spend more than it is estimated will $37,000.00 year during per per prisons in inmate housed its 2013 and 2014. majority weigh opportunity society at cost to when Id. B-15. Does the the imprisoned wages toward a those cannot earn and make some contribution obligation? dismantling family Does it consider the bonds that imprisoning delinquent parent results from who would otherwise still love, family? provide support, emotional or care to his or her 59Ante at 405-406. v Likine Dissenting Opinion by Marilyn Kelly, J. history assets, potential, and his available and own work his burden, alleged subsistence needs. To meet this the contem- veiy present nor at must the least evidence of his or her (or employment thereof), wages, expenses, lack and assets. However, gauging ability pay may much be more this, complicated involving good than faith re- issues sponsibility obligations, for other voluntariness of the obligor’s unemployment underemployment, and the availability of borrowed funds or assets owned others to satisfy obligor’s may legal debt. There be as well as components complexity factual issues. these The of these puts beyond understanding them issues indi- most gents, rarely effectively respond who will be able to to the petitioner’s areas, present case in these much less a case simplest chief of their “inability pay” own. Even the argument defense, requires articulating gathering presenting documentary evidence, respond- and other ing legally significant questions from the bench—tasks probably are perhaps insuperable which awesome and undertakings layperson. particu- the uninitiated This is larly layperson indigent true where poorly is educated.

Adding obligor’s potential to the burden is that the testimony concerning inability court will hold his or her pay to lacking credibility be insufficient evidence or documentary the absence of corroboration. Retention of necessary among rare, indigents particularly records given widespread instability employment, in their lives.[60] housing, aspects and other of their Permitting only an impossibility-to-pay defense rather than an defense inability-to-pay heightens the level of evidence needed to refute a In a nonsupport charge. practical sense, it erects a barrier that will prove overwhelming many willful, recalcitrant, who are not obdurate, or deceitful. 60 Patterson, contempt indigent obligor: Civil and the child prison.

silent return debtor’s 18 Cornell J L & Pub Pol 120-121 (2008) omitted). (quotation marks and citations 492 MICH367 by Marilyn Dissenting Opinion Kelly, J. DEFENSE MAJORITY’SIMPOSSIBILITY-TO-PAY

F.'THE IS UNCONSTITUTIONAL its Finally, majority supports impossibility-to-pay the family that because courts consider by suggesting defense setting support obligations, by when defini- ability There is much to support obligor pay. tion a is able that, It be remembered because logic. criticize this must in nature, they are do not family proceedings civil high process the same level of due as criminal require proceedings. They lack certain fundamental constitu- including right by jury, tional trial safeguards, beyond-a-reasonable-doubt proof, right standard of counsel, right to effective assistance of counsel.61 family By allowing judgment into evidence court’s a defendant’s would regarding ability pay, majority that has been to the subjected allow evidence not consti- rigors Doing tutional of a criminal trial. so would threaten process protections by undercutting presumption due shifting of innocence and onto defendants the burden of disproving the actus reus of the crime.62

In proceedings support, civil to set child trial courts employ preponderance-of-the-evidence standard to findings regarding ability make factual parent’s pay.63These include find- ability-to-pay determinations (CA 2006) See, e.g., Mandycz, United States v 447 F3d (“Criminal many protections process pro cases offer due . . . that civil not.”). ceedings Supreme ... do The United States Court has also recognized penalties may proposition “the fundamental that criminal imposed protections be on someone who has not been afforded the requires proceedings . ex Constitution such criminal ...” Hicks rel (1988). Feiock, 624, 632; L Feiock v 485 US 108 S Ct 99 Ed 2d 721 impossibility-to- It also creates enormous confusion to institute an when, action, proceeding, in a defense criminal the related civil 552.23(1). family See, e.g., ability-to-pay court used an standard. MCL 63 See, Governor, 1, 89; e.g., Blue Cross Blue Shield Mich v Mich (“It (1985) generally 367 NW2d 1 well established that issues of fact in v Likine Opinion by Marilyn Dissenting Kelly, J. ings imputed poten- income based on an individual’s determinations earning capacity.64 Ability-to-pay tial of a inherently are thus linked to the actus reus subse- quent nonsupport charge. criminal

But it is axiomatic that all elements of a criminal proved beyond must be a reasonable doubt.65 standard used in preponderance-of-the-evidence protection civil courts affords less than the constitu- tionally guaranteed beyond-a-reasonable-doubt stan- proof By importing dard of used criminal courts.66 proceeding ability-to-pay into a criminal a civil court’s shifting proof determination and the burden of to the defendant to show impossibility pay, majority due endangers process. Ability-to-pay determinations made in a civil court constitutionally cannot be used as the basis for that a establishing defendant was able to Doing a criminal case. so diminishes the pros- ecution’s burden of proof to standard below the constitutional threshold.67 preponderance civil cases are to be determined in accordance with the (citations ....”) omitted). the evidence 64 2.01(G). See 2008 MCSF 65 Louisiana, 275, 277-278; 2078; Sullivan v 508 US L 113 S Ct 124 Ed (1993) (“The prosecution proving 2d 182 bears the burden of all elements charged persuade ‘beyond of the offense and must the factfinder necessary reasonable doubt’ of the facts to establish each of those beyond-a-reasonahle-douht requirement... applies elements. This (citations omitted); proceedings.”) state Winship, as well as federal In re (1970) (“[A] 358, 363-364; society 397 US 90 S Ct 25 L 2dEd good every that values the name and freedom of individual should not condemn a man for commission of a crime when there is reasonable doubt guilt.”). about his Chamberlain, 329, 335-336; See Waknin v 653 NW2d 176 (2002) (“[D]efendant guilty beyond was found reasonable doubt —a proof granting protection greater preponder standard of him than the ..”). ance of the evidence standard in the civil case . . analysis legitimacy This does not disturb the of the civil court’s is,

underlying support relitigate order. That a defendant cannot in a MICH by Marilyn Dissenting Opinion Kelly, J. Furthermore, of statu- majority injects principles impossibility-to- as for its tory interpretation support throughout opinion phrases It its repeats defense. Legislature’s expressed with the “[c]onsistent[] such as unsup- intent in the child statutes”68 and its Michi- my analysis claim that would “undermine ported ,”69 similarly its gan’s legislative system . . . It relies on that its is “consistent with the interpretation assertion . . . .”70 language Frequent repeti- [the] statute plain turn the concepts majority’s tion of these does sure, “interpretation” assertions into facts. To be an can lead plain language a statute’s nonetheless stated, previously activist result.71 As there is no statu- 750.165, in MCL or in tory language express implied, statutes, gives the child rise to an defense.72 impossibility-to-pay importantly, Legislature’s More the intent with re- spect constitutionally to the mandated defense to a felony nonsupport is extraneous. It is undis- puted that some defense must be made available for scrutiny. MCL 750.165 to survive constitutional How- ever, it prerogative Legislature is not the of the to set Rather, duty that constitutional floor. it is this Court’s support criminal case the amount of a order. He or she remains liable for irrespective proceeding. that amount of the outcome of the criminal 68Ante at 374. 69Ante at 374. Ante at see also ante at 419. (2010) Carrier, 180, 209; v McCormick 795 NW2d 517 (“[T]he. majority’s ‘interpretation’ plain language . . of MCL 500.3135(7) chilling guises, was a reminder that activism comes in all textualism.”) (citation omitted). including quotation so-called marks majority rely support cannot on the child statutes in analysis. govern proceedings its Those statutes civil in which the amount They proceedings. of a award is set. are to criminal irrelevant only nonsupport

MCL 750.165 is statute that concerns a criminal charge. Likine by Marilyn Dissenting Opinion Kelly, J. defense, minimum, must be at a what to determine to be constitu- in order for the statute available made legislative By allowing purported tionally applied. outcome, its majority its abdicates to dictate intent protec- citizens’ constitutional our duty guardian as tions.

II. CONCLUSION de- sum, majority’s impossibility-to-pay In new to suc- nearly creates a insurmountable barrier fense As defending charges. cessfully willful, the long only it is “the Michigan recognized, has recalcitrant, impris- or deceitful” who are obdurate In obligations.73 financial failing oned for meet their we can add to that majority’s holding, now light of are and cannot obtain list those who unable pay. majority’s I believe resources prove unjust defense will impossibility-to-pay grossly unconstitu- fundamentally its that it is application is the Because a defendant’s tional. I felony nonsupport charge, respect- defense to proper dissent. fully JJ., HATHAWAY, MARILYN

CAVANAGH concurred with Kelly, J.

73 Reed, App Mich at 627.

Case Details

Case Name: People of Michigan v. Selesa Arrosieur Likine

Court Name: Michigan Supreme Court

Date Published: Jul 31, 2012

Citation: 492 Mich. 367

Docket Number: Docket 141154, 141181, and 141513

Court Abbreviation: Mich.