HOUSE BILL No. 4042

 

January 22, 2009, Introduced by Rep. Lori and referred to the Committee on Judiciary.

 

     A bill to amend 1939 PA 288, entitled

 

"Probate code of 1939,"

 

by amending sections 30 and 31 of chapter XIIA (MCL 712A.30 and

 

712A.31), as amended by 1996 PA 561.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

CHAPTER XIIA

 

     Sec. 30. (1) For purposes of this section and section 31 of

 

this chapter:

 

     (a) "Juvenile offense" means a violation by a juvenile of a

 

penal law of this state or a violation by a juvenile of an

 

ordinance of a local unit of government of this state punishable by

 

imprisonment or by a fine that is not a civil fine.

 

     (b) "Victim" means an individual who suffers direct or


 

threatened physical, financial, or emotional harm as a result of

 

the commission of a juvenile offense. For purposes of subsections

 

(2), (3), (6), (8), (9), and (13) (10), and (14), victim includes a

 

sole proprietorship, partnership, corporation, association,

 

governmental entity, or other legal entity that suffers direct

 

physical or financial harm as a result of the commission of a

 

juvenile offense.

 

     (2) Except as provided in subsection (8) (9), at the

 

dispositional hearing for a juvenile offense, the court shall

 

order, in addition to or in lieu of any other disposition

 

authorized by law, that the juvenile make full restitution to any

 

victim of the juvenile's course of conduct that gives rise to the

 

disposition or to the victim's estate.

 

     (3) If a juvenile offense results in damage to or loss or

 

destruction of property of a victim of the juvenile offense, or

 

results in the seizure or impoundment of property of a victim of

 

the juvenile offense, the order of restitution may require that the

 

juvenile do 1 or more of the following, as applicable:

 

     (a) Return the property to the owner of the property or to a

 

person designated by the owner.

 

     (b) If return of the property under subdivision (a) is

 

impossible, impractical, or inadequate, pay an amount equal to the

 

greater of subparagraph (i) or (ii), less the value, determined as of

 

the date the property is returned, of that property or any part of

 

the property that is returned:

 

     (i) The value of the property on the date of the damage, loss,

 

or destruction.


 

     (ii) The value of the property on the date of disposition.

 

     (c) Pay the costs of the seizure or impoundment, or both.

 

     (4) If a juvenile offense results in physical or psychological

 

injury to a victim, the order of restitution may require that the

 

juvenile do 1 or more of the following, as applicable:

 

     (a) Pay an amount equal to the cost of actual medical and

 

related professional services and devices relating to physical and

 

psychological care.

 

     (b) Pay an amount equal to the cost of actual physical and

 

occupational therapy and rehabilitation.

 

     (c) Reimburse the victim or the victim's estate for after-tax

 

income loss suffered by the victim as a result of the juvenile

 

offense.

 

     (d) Pay an amount equal to the cost of psychological and

 

medical treatment for members of the victim's family that has been

 

incurred as a result of the juvenile offense.

 

     (e) Pay an amount equal to the costs of actual homemaking and

 

child care expenses incurred as a result of the juvenile offense.

 

     (5) If a juvenile offense resulting in bodily injury also

 

results in the death of a victim, the order of restitution may

 

require that the juvenile pay an amount equal to the cost of actual

 

funeral and related services.

 

     (6) If the victim or victim's estate consents, the order of

 

restitution may require that the juvenile make restitution in

 

services in lieu of money.

 

     (7) If the victim is deceased, the court shall order that the

 

restitution be made to the victim's estate.


 

     (8) If the victim is the victim of identity theft as that term

 

is defined in section 3 of the identity theft protection act, 2004

 

PA 452, MCL 445.63, then the court shall order restitution to

 

compensate the victim in full for the work done by the victim or

 

the victim's attorney, or both, to rectify the victim's financial

 

records and vital records and to ameliorate the effects of the

 

identity theft on the victim's financial affairs, including, but

 

not limited to, credit history, credit rating, or credit score.

 

     (9) (8) The court shall order restitution to the crime victims

 

compensation board or to any individuals, partnerships,

 

corporations, associations, governmental entities, or any other

 

legal entities that have compensated the victim or victim's estate

 

for a loss incurred by the victim to the extent of the compensation

 

paid for that loss. The court shall also order restitution, for the

 

costs of services provided, to persons or entities that have

 

provided services to the victim as a result of the juvenile

 

offense. Services that are subject to restitution under this

 

subsection include, but are not limited to, shelter, food,

 

clothing, and transportation. However, an order of restitution

 

shall require that all restitution to a victim or victim's estate

 

under the order be made before any restitution to any other person

 

or entity under that order is made. The court shall not order

 

restitution to be paid to a victim or victim's estate if the victim

 

or victim's estate has received or is to receive compensation for

 

that loss, and the court shall state on the record with specificity

 

the reasons for its actions. If an entity entitled to restitution

 

under this subsection for compensating the victim or the victim's


 

estate cannot or refuses to be reimbursed for that compensation,

 

the restitution paid for that entity shall be deposited by the

 

state treasurer in the crime victim's rights fund created under

 

section 4 of Act No. 196 of the Public Acts of 1989, being section

 

780.904 of the Michigan Compiled Laws 1989 PA 196, MCL 780.904, or

 

its successor fund.

 

     (10) (9) Any amount paid to a victim or victim's estate under

 

an order of restitution shall be set off against any amount later

 

recovered as compensatory damages by the victim or the victim's

 

estate in any federal or state civil proceeding and shall reduce

 

the amount payable to a victim or a victim's estate by an award

 

from the crime victims compensation board made after an order of

 

restitution under this section.

 

     (11) (10) If not otherwise provided by the court under this

 

subsection, restitution shall be made immediately. However, the

 

court may require that the juvenile make restitution under this

 

section within a specified period or in specified installments.

 

     (12) (11) If the juvenile is placed on probation, any

 

restitution ordered under this section shall be a condition of that

 

probation. The court may revoke probation if the juvenile fails to

 

comply with the order and if the juvenile has not made a good faith

 

effort to comply with the order. In determining whether to revoke

 

probation, the court shall consider the juvenile's employment

 

status, earning ability, and financial resources, the willfulness

 

of the juvenile's failure to pay, and any other special

 

circumstances that may have a bearing on the juvenile's ability to

 

pay.


 

     (13) (12) A juvenile who is required to pay restitution and

 

who is not in willful default of the payment of the restitution may

 

at any time petition the court to modify the method of payment. If

 

the court determines that payment under the order will impose a

 

manifest hardship on the juvenile or his or her immediate family,

 

the court may modify the method of payment.

 

     (14) (13) An order of restitution entered under this section

 

remains effective until it is satisfied in full. An order of

 

restitution is a judgment and lien against all property of the

 

individual ordered to pay restitution for the amount specified in

 

the order of restitution. The lien may be recorded as provided by

 

law. An order of restitution may be enforced by the prosecuting

 

attorney, a victim, a victim's estate, or any other person or

 

entity named in the order to receive the restitution in the same

 

manner as a judgment in a civil action or a lien.

 

     (15) (14) Notwithstanding any other provision of this section,

 

a juvenile shall not be detained for a violation of probation, or

 

otherwise, for failure to pay restitution as ordered under this

 

section unless the court determines that the juvenile has the

 

resources to pay the ordered restitution and has not made a good

 

faith effort to do so.

 

     (16) (15) If the court determines that the juvenile is or will

 

be unable to pay all of the restitution ordered, after notice to

 

the juvenile's parent and an opportunity for the parent to be

 

heard, the court may order the parent or parents having supervisory

 

responsibility for the juvenile at the time of the acts upon which

 

an order of restitution is based to pay any portion of the


 

restitution ordered that is outstanding. An order under this

 

subsection does not relieve the juvenile of his or her obligation

 

to pay restitution, but the amount owed by the juvenile shall be

 

offset by any amount paid by his or her parent. As used in this

 

subsection, "parent" does not include a foster parent.

 

     (17) (16) If the court orders a parent to pay restitution

 

under subsection (15) (16), the court shall take into account the

 

financial resources of the parent and the burden that the payment

 

of restitution will impose, with due regard to any other moral or

 

legal financial obligations that the parent may have. If a parent

 

is required to pay restitution under subsection (15) (16), the

 

court shall provide for payment to be made in specified

 

installments and within a specified period of time.

 

     (18) (17) A parent who has been ordered to pay restitution

 

under subsection (15) (16) may petition the court for a

 

modification of the amount of restitution owed by the parent or for

 

a cancellation of any unpaid portion of the parent's obligation.

 

The court shall cancel all or part of the parent's obligation due

 

if the court determines that payment of the amount due will impose

 

a manifest hardship on the parent.

 

     (19) (18) In each case in which payment of restitution is

 

ordered as a condition of probation, the juvenile caseworker or

 

probation officer assigned to the case shall review the case not

 

less than twice yearly to ensure that restitution is being paid as

 

ordered. The final review shall be conducted not less than 60 days

 

before the expiration of the probationary period. If the juvenile

 

caseworker or probation officer determines the restitution is not


 

being paid as ordered, the juvenile caseworker or probation officer

 

shall file a written report of the violation with the court on a

 

form prescribed by the state court administrative office. The

 

report shall include a statement of the amount of the arrearage and

 

any reasons for the arrearage that are known by the juvenile

 

caseworker or probation officer. The juvenile caseworker or

 

probation officer shall immediately provide a copy of the report to

 

the prosecuting attorney. If a motion is filed or other proceedings

 

are initiated to enforce payment of restitution and the court

 

determines that restitution is not being paid or has not been paid

 

as ordered by the court, the court shall promptly take action

 

necessary to compel compliance.

 

     (20) (19) If the court determines that an individual who is

 

ordered to pay restitution under this section is remanded to the

 

jurisdiction of the department of corrections, the court shall

 

provide a copy of the order of restitution to the department of

 

corrections when the court determines that the individual is

 

remanded to the department's jurisdiction.

 

     Sec. 31. (1) In determining the amount of restitution to order

 

under section 30 of this chapter, the court shall consider the

 

amount of the loss sustained by any victim as a result of the

 

juvenile offense. In determining whether to order the juvenile's

 

supervisory parent to pay restitution under section 30(15) 30(16)

 

of this chapter, the court shall consider the financial resources

 

of the juvenile's supervisory parent and the other factors

 

specified in section 30(16) 30(17) of this chapter.

 

     (2) The court may order the person preparing a report for the


 

purpose of disposition to obtain information pertaining to the

 

factors set forth in subsection (1). That person shall include the

 

information collected in the disposition report or in a separate

 

report, as the court directs.

 

     (3) The court shall disclose to the juvenile, the juvenile's

 

supervisory parent, and the prosecuting attorney all portions of

 

the disposition or other report pertaining to the matters described

 

in subsection (1).

 

     (4) Any dispute as to the proper amount or type of restitution

 

shall be resolved by the court by a preponderance of the evidence.

 

The burden of demonstrating the amount of the loss sustained by a

 

victim as a result of the juvenile offense shall be on the

 

prosecuting attorney. The burden of demonstrating the financial

 

resources of the juvenile's supervisory parent and the other

 

factors specified in section 30(16) 30(17) of this chapter shall be

 

on the supervisory parent.

 

          Enacting section 1. This amendatory act does not take

 

effect unless all of the following bills of the 95th Legislature

 

are enacted into law:

 

     (a) Senate Bill No.____ or House Bill No. 4040(request no.

 

00331'09).

 

     (b) Senate Bill No.____ or House Bill No. 4041(request no.

 

00331'09 a).