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|State||Citation||Description/Statute Name||Question||Brief answer||Language from the opinion||When does the case apply?|
|Washington||Wash. Att'y Gen. Op. 1993 NO. 11 (1993)||Ability to pay - considered at imposition and collection of fines and fees||Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees?||They must be considered both when imposing and collecting fines and fees||
[A] county considering an ordinance authorizing a court to impose a multiple booking fee as part of a criminal sentence should heed constitutional considerations relating to the offender's ability to+ See more
pay the fee. Some statutes providing for the repayment of costs incurred on behalf of a criminal defendant, also known as recoupment statutes, have been challenged as unconstitutional. The courts generally have upheld these statutes, provided that they contain certain safeguards. As set forth in Fuller v. Oregon, 417 U.S. 40, 40 L.Ed.2d 642, 94 S.Ct. 2116 (1974), and summarized in State v. Earls, 51 Wn.App. 192, 19596, 752 P.2d 402 (1988), the safeguards are:(1) The requirement of repayment must not be mandatory;(2) Repayment may be imposed only upon convicted defendants;(3) Repayment may only be ordered if the defendant is or will be able to pay;(4) The financial resources of the defendant must be taken into consideration;(5) A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;(6) The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion thereof;(7) The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.
|Washington||Wash. Att'y Gen. Op. 1993 NO. 11 (1993)||Authority to set fines/fees||What authority do county or municipal courts have to set fines or fees?||Counties are given extensive freedoms to set fines and fees for municipal violations, but cannot do so in fields in which the state preempts||
Counties have broad authority under article 11, section 11 of the state constitution to act in furtherance of their police power. That section provides: Any county, city, town or township+ See more
may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. The State Supreme Court has described this provision as follows: This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws. Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960); see also Brown v. Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991).Under this provision, counties may enact ordinances regarding all those measures which bear a reasonable and substantial relation to promotion of the general welfare of the people. State v. Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980). County ordinances prescribing local offenses and punishments for them would constitute police power measures of the county under article 11, section 11 of the Washington Constitution. Such county ordinances may not, however, conflict with state laws. The courts have interpreted this to mean that counties may not legislate in a particular area when the state has preempted the field, or when the county legislation and state legislation on the same subject cannot be harmonized. Brown, 116 Wn.2d at 559.
|Washington||See answer for 8 above||Washington-Attorney General opinion||What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines?||See answer for 8 above||See answer for 8 above|
|Washington||Not answered||Washington-Attorney General opinion||Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law?||Not answered||Not answered|
|West Virginia||W. Va. Code §48-1-304||W.V. Code||
Are the same procedural protections that are required in criminal proceedings required in civil collection/contempt proceedings arising from criminal justice debt when those proceedings may result in incarceration? What if+ See more
the proceedings may only result in additional fines or non-incarceration penalties?
In the case of a charge of contempt based upon the failure of the defendant to pay alimony, child support or separate maintenance, if the court or jury finds that+ See more
the defendant did not pay because he was financially unable to pay, the defendant may not be imprisoned on charges of contempt of court.
(1) State v. Stamm, 222 W. Va. 276, 278, 664 S.E.2d 161, 163 (2008) (2) State ex rel. Zirkle v. Fox, 203 W. Va. 668, 669, 510 S.E.2d 502, 503 (1998) (3)+ See more
W. Va. Code Ann. § 61-11A-5
|Case Law / W.V. Code||Who has the burden of proof in an ability to pay determination? What is the standard of proof required?||
(1) In criminal failure to meet obligation to minor (W. Va. Code § 61-5-29), the State has the burden of proof and the standard is beyond a reasonable doubt. (2)However,+ See more
in civil contempt cases, if contemnor alleges financial inability to pay, he bears the burden of proving such inability to comply with a court mandate in order to avoid imprisonment. (3)Finally, in restitution determinations, the burden is on the defendant and the standard is a preponderance of the evidence.
Where a contemnor alleges financial inability to pay in a civil contempt proceeding, he bears the burden of proving such inability to comply with a court mandate in order to+ See more
|Ability to pay|
|West Virginia||(1)State v. Murrell, 201 W.Va. 648, 499 S.E.2d 870 (1997)(2) W. Va. Code §50-3-2.||Case Law||Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees?||
No. Ability to pay does not have to be considered when imposing fines or fees; certain fines and fees are required by law to be imposed (see, e.g., W. Va.+ See more
“An individual is not excused from the imposition of the maximum sentence allowed under a statute simply because he is indigent, even if that sentence includes the imposition of fines+ See more
pursuant to statute.”
|Ability to pay|
|West Virginia||W. Va. Code §8-10-1, 2; W. Va. Code § 62-4-16.||W.V. Code||What authority do county or municipal courts have to set fines or fees?||
Municipal courts have power to impose fines, penalties and cost when not otherwise provided by charter provision or general law. However, municipal judges may substitute community service in lieu of+ See more
sentence of incarceration or imposition of fine.
|Fines and fees|
|West Virginia||W. Va. Const. art. VIII, § 3||State Constitution||What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines?||West Virginia's Constitution allows the Court of Appeals to impose binding state-wide rules. No on point Attorney General Opinion.||
“The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process, practice+ See more
and procedure, which shall have the force and effect of law.”
|West Virginia||W. Va. Code § 7-8-14(c)||W.V. Code||Other applicable opinions||
“A defendant who has been sentenced to pay costs and who is not in willful default in the payment of the costs may at any time petition the sentencing court+ See more
for remission of the payment of costs or of any unpaid portion of the costs. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or the defendant's family or dependents, the court may excuse payment of all or part of the amount due in costs, or modify the method of payment.”