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11 Results
State | Citation | Description/Statute Name | Question | Brief answer | Language from the opinion | When does the case apply? | |
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South Carolina | S.C.A.G. Oct. 8, 2012 (informal opinion) | Civil contempt |
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 morethe proceedings may only result in additional fines or non-incarceration penalties?
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No - the rationale for punishment based on contempt proceedings rather than criminal proceedings is different |
The principal purpose of criminal contempt is punishment. In civil contempt, however, the contemnors "carry the keys of prison in their own pockets" as the contempt serves to secure "compliance + See morewith judicial decrees." 287 S.E.2d at 919. The Court concluded that "[t]he conditional nature of the imprisonment, based entirely upon appellant's refusal to pay respondent's expenses, justified the civil contempt proceeding without a jury trial.
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Enforcement |
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South Carolina | S.C.A.G. July 15, 1996 (informal opinion) | Setting fees | Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? | Not answered as to indigency - however, municipalities cannot set their own fees not in accordance with State statutes |
it is the opinion of this Office that all fee schedules used in the various counties based upon ordinances and special statutes are unconstitutional and that the only fee schedule + See moreavailable for the services enumerated is to be found under South Carolina Code Section 27-53 (1976) [replaced by Act No. 164 of 1979]
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Fines and fees |
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South Carolina | Robert L. McCrudy, S.C.A.G. Dec. 14, 1999 (informal opinion) | Collection by private vendor | Which fines and/or fees may be collected by a private vendor? | Collection of criminal fines and fees are the job of the magistrate |
With respect to the physical collection and handling ofpublic monies such as fines, restitution, etc. such should be done exclusively by the court and its officers rather than by the + See morecompany, in the absence of legislative authorization therefore.
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Enforcement |
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South Carolina | 1987 S.C. Op. Att'y Gen. 255 (1987) | Bearden | Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? | Not answered - however, cannot implement a surcharge if defendant fails to pay fee |
In the circumstances where an indigent fails to comply with the schedule of payments established by the court and the court determines that the indigent has wilfully refused to pay + See moreor failed to make bona fide efforts to pay, the court is authorized to imprison the defendant for contempt. As provided in Section 17–25–350, where part of the fine has been paid, the imprisonment cannot exceed the remaining pro rata portion of the sentence. I am unaware of any basis for a court to impose a fine in addition to the sentence originally imposed.
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Ability to pay |
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South Carolina | 1978 S.C. Op. Att'y Gen. 140 (1978) | South Carolina-Attorney General opinion | What authority do county or municipal courts have to set fines or fees? | By implication, they may set fees at least as far as reimbursement for public defense |
Since the Defense of Indigents Act, supra, does not prohibit the municipal court from ordering reimbursement as a condition of suspended sentences and since such orders are not generally unconstitutional + See moreor improper, it is the opinion of this Office that certain municipal courts may order as a condition of a suspended sentence, a convicted indigent defendant to reimburse the Judicial Department for the costs of his representation by a public defender, pursuant to Section 17–3–40 of the Code of Laws.
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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 morethe proceedings may only result in additional fines or non-incarceration penalties?
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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 morethe defendant did not pay because he was financially unable to pay, the defendant may not be imprisoned on charges of contempt of court.
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West Virginia |
(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 moreW. Va. Code Ann. § 61-11A-5
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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 morein 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.
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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 moreavoid imprisonment.
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Ability to pay |
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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 moreCode §50-3-2.)
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“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 morepursuant to statute.”
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Ability to pay |
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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 moresentence of incarceration or imposition of fine.
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Fines and fees | |
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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 moreand procedure, which shall have the force and effect of law.”
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Enforcement |
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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 morefor 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.”
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