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State Citation Description/Statute Name Question Brief answer Language from the opinion When does the case apply?
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North Carolina N.C.A.G. Mar. 21, 1996 RE: Advisory Opinion; Exceptions to Statutory Exemptions for Execution of Judgment on Criminal Restitution Orders Other applicable opinions North Carolina is not barred from structuring a program to collect costs; however, the state's initiatives, must be narrowly drawn so as to avoid chilling the indigent's right to counsel
North Carolina [is not] barred from structuring a program to collect the amount it is owed from a financially-able defendant through reasonable and fairly administered procedures. The state's initiatives in
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this area naturally must be narrowly drawn to avoid either chilling the indigent's exercise of the right to counsel, or creating discriminating terms of repayment based solely on the defendant's poverty. Beyond these threshold requirements, however, the State has wide latitude to shape its attorneys fees recoupment or restitution program along the lines it deems most appropriate for achieving lawful state objectives. Id. at 123-124. (emphasis added.)
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North Carolina N.C.A.G. June 10, 1980 Criminal Law and Procedure; Sentences; Probation; Restitution; Bankruptcy Proceedings Person who received illegal gains as a part of criminal activity may not discharge legal financial obligations in bankruptcy
It would thus be against our statute and public policy to permit a defendant who has received illegal gains and who was ordered to make restitution as a condition of
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his sentence to vacate such conditions by a discharge in bankruptcy." People v. Mosesson, 356 N.Y.S. 2d 483, 484-85, (1974). See also: People on Inf. of Anerbach v. Topping Bros., 359 N.Y.S. 2d 985 (1974).
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Tennessee Bradford v. Bradford, No. 86-262-II, 1986 WL 2874, at *5 (Tenn. Ct. App. Mar. 7, 1986); Daniels v. Grimac, 342 S.W.3d 511, 517 (Tenn. Ct. App. 2010) Case law
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
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the proceedings may only result in additional fines or non-incarceration penalties?
Courts have recognzied that defendants are entitled to counsel, an opportunity to be heard, and notice in civil proceedings which may result in incarceration.
“We are of the opinion that in light of Lassiter, due process mandates that an indigent defendant has the right to be represented by counsel at a contempt proceeding whether
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it be called civil or criminal if the indigent defendant faces the loss of his freedom.” “Indirect contempt arises from acts committed out of the presence of the court, and cannot be punished unless the accused has been given the due process protections of notice and an opportunity to be heard.”
Enforcement
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Tennessee Cf. Tenn. Op. Att'y Gen. No. 89-03 (Jan. 12, 1989) Imprisonment for Contempt of Non-Payment of Fines Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? Municipalities can set their own standards as long as the standards comply with constitutional and statutory protections
"The municipal charter provides that the city court may imprison a party for up to ten days for violation of city ordinances, and the city council has passed a resolution
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to this effect.It appears that the municipal provision outlined above complies with the procedures described in T.C.A. § 40–24–104, as well as constitutional safeguards, for determination of the defendant's ability to pay, thereby giving rise to an inference of willful disobedience and contempt of court where there has been a subsequent missed payment without notice of good cause to the court."
Ability to pay
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Tennessee See Tenn. Code Ann. § 40-24-105(d)(1) Collection; fines, costs and litigation taxes; license revocation Which fines and/or fees may be collected by a private vendor? Statutory law provides that all fines and fees may be collected by a private vendor when a defendant has been in default for more than six months.
"After a fine, costs, or litigation taxes have been in default for at least six (6) months, the district attorney general or criminal or general sessions court clerk may retain
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an agent to collect, or institute proceedings to collect, or establish an in-house collection procedure to collect, fines, costs and litigation taxes."
Enforcement
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Tennessee Tenn. Op. Att'y Gen. No. 89-104 (Aug. 17, 1989) (citing State ex rel. Wright v. Upchurch, 254 S.W.2d 748, 749 (Tenn. 1953)) Whether a Defendant Found in Willful Contempt of Court for Failure to Pay Child Support May Be Incarcerated Where He Lacks the Present Ability to Pay the Arrearage. Who has the burden of proof in an ability to pay determination? What is the standard of proof required? At least in civil contempt proceedings, the burden of proof is on the defendant.
"In any case, the inability to pay is an affirmative defense to a petition for civil contempt and the burden of proof is on the defendant to establish his inability
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to pay."
Ability to pay
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Tennessee Tenn. Code Ann. § 40-24-104; Tenn. Op. Att'y Gen. No. 89-03 (Jan. 12, 1989) Imprisonment for Contempt for Non–Payment of Fines Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? Statutory law provides that ability to pay must be considered when collecting fines, but at least some courts consider ability to pay when imposing fines and fees as well.
“If the defendant fails to pay the fine as directed, or is unable to pay the fine and so represents upon application to the court, the court, after inquiring into
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and making further investigation, if any, which it may deem necessary with regard to the defendant's financial and family situation and the reasons for nonpayment of the fine, including whether the nonpayment was contumacious or was due to indigency, may enter any order that it could have entered under § 40-24-101, or may reduce the fine to an amount that the defendant is able to pay, or may direct that the defendant be imprisoned until the fine, or any portion of it, remaining unpaid or remaining undischarged after a pro rata credit for any time that may already have been served in lieu of payments, is paid. The court shall determine and specify, in the light of defendant's situation and means and of defendant's conduct with regard to the nonpayment of the fine, the period of any imprisonment in default of payment of the fine within the limits of the penalties for a Class C misdemeanor.” “In the instant situation, the following circumstances form the factual basis resulting in the issuance of a capias for contempt of court: When a fine is imposed, a hearing is held at the same time to determine the defendant's ability to pay. If it appears that defendant cannot pay, the case is continued for several months to see if circumstances change during that time. If the court determines that defendant is able to pay or to make payments, a payment schedule is set up. Defendant is instructed at that time to notify the court if any emergency comes up and, if so, the court will consider defendant's excuse. If defendant thereafter misses a payment and has not notified the court, then a capias is issued for his arrest for contempt of court, since there has already been a finding that that defendant is able to pay.”
Ability to pay
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Tennessee Town of Nolensville v. King, 151 S.W.3d 427, 433 (Tenn. 2004); TN Const. Art. 6, § 14; case law What authority do county or municipal courts have to set fines or fees? The Tennessee constitution does not allow a county or municipal court to set a fine or fee greater than $50 without a trial by jury.
"Accordingly, for the reasons stated herein, we hold that Article VI, section 14 of the Tennessee Constitution prohibits a municipal court judge from imposing fines in excess of fifty dollars
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for a violation of a municipal ordinance, absent a valid waiver of the defendant's Article VI, section 14 right."
Fines and fees
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Tennessee Corum v. Holston Health & Rehab. Ctr., 104 S.W.3d 451, 454 (Tenn. 2003) case law What authority does the state supreme court have to impose binding state-wide rules on the imposition or collection of fees and fines? The state supreme court has the power to impose rules which govern the practice and procedure of the lower courts.
"[I]t is well settled that the Tennessee Supreme Court has the inherent power to promulgate rules governing the practice and procedure of the courts of this state. This inherent power
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“exists by virtue of the establishment of a Court and not by largess of the legislature"
Enforcement
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Tennessee State v. Smith, No. C.C.A. 86-121-III, 1986 WL 10893 (Tenn. Crim. App. Oct. 3, 1986) case law Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? This has not been explicitly addressed by courts. However, in the right-to-counsel context, Tennesee generally recognizes that conflicts of interests should be avoided where they are likely to occur.
“Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect
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each defendant's right to counsel.”
Enforcement
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Wyoming 1980 Wyo. Att'y Gen. Op. No. 80-09 (May 29, 1980) Opinion No. 80-09 (1980) What authority do county or municipal courts have to set fines or fees?
A municipality may adopt an ordinance providing for a lesser penalty than that provided for by the statutory code, which provides for mandatory jail sentence of one day for any
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person convicted of driving or being in control of a motor vehicle while under the influence of intoxicating liquor, etc.
There are cases which hold that municipalities may not enact their own penalties; and cases which hold to the contrary. The differences between the cases appear to turn on a
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combination of factors. In arriving at these diverse results, courts have recognized the following distinctions: felonies or misdemeanors; the presence or absence of home rule; the presence or absence of express municipal authority; and the presence or absence of clear and express language indicating state preemption. For the reasons hereafter stated, we conclude that municipalities may enact their own penalties for the crime of DWUI. Although some may believe the result anomalous, we find merit in the argument that had the legislature intended to impose mandatory jail sentences on our cities and towns, it would have done so by simple, clear, and express language. Municipalities have express powers to govern themselves and to regulate local affairs. Municipalities have been granted express power to regulate the use of streets by the legislature. Clear and express limitation of the power to regulate the use of streets does not appear in the statutes; nor has the legislature clearly and expressly indicated its desire to gain exclusive jurisdiction over DWUI in W.S. 31-5-233 (1977) or in Senate Enrolled Act No. 32. The provision of a lesser penalty in a municipal ordinance does [*12] not create conflict with a state law on the same subject, provided the crimes are of a similar class. Therefore, municipalities may regulate DWUI by passing ordinances with lesser penalties than provided by Senate Enrolled Act No. 32.
Fines and fees
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Wyoming 1985 Wyo. Att'y Gen. Op. No. 85-001 (April 19, 1985) 1985 Op. Atty Gen. Wyo. 1 Other applicable opinions The county sheriff or county may proceed against a person that is physically incarcerated for all medical bills when the person is incarcerated, regardless of the source of the injury.
In conclusion, then, the county sheriff is responsible for all medical bills incurred in the treatment of those persons who are in his custody, whether or not such persons have
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ever been physically incarcerated in the county jail and regardless of the source of the injury. The county commissioners must reimburse him for these costs. A person's indigency has no bearing upon the initial determination of responsibility. If the person is not indigent the sheriff or county may proceed against him in a suit for reimbursement. [*12] If the person is in fact indigent, the sheriff or county has no recourse for recovery against either the county hospital or the state welfare system.
Fines and fees
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Wyoming 1987 Wyo. Att'y Gen. Op. No. 87-006 (May 28, 1987) 1987 Op. Atty Gen. Wyo. 19 The clerk of court shall collect and disburse restitution payments.
DISCUSSION I Who should accept and disburse restitution payments from defendants? Section 7-13-312, W.S. 1977, (1986 Cum. Supp.), states in part, "Restitution payments shall be made to the office of the clerk
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unless otherwise ordered by the court." The Wyoming Supreme Court has stated that when the word 'shall' is employed, it is usually legally accepted as mandatory, Mau v. Stoner, 14 Wyo., 183, 83 P. 218, 219 (1905). In construing statutes, "Unless the context otherwise indicates, the use of the word 'shall' (except in its future tense) indicates a mandatory intent". 1A Sutherland Statutory Construction, § 25.04 [*2] p. 301 (4th Ed. Sands); Ginnavan v. Silverstone, 246 Md. 500, 229 A.2d 124, 127." Mayland v. State, Wyo., 568 P.2d 897, 899 (1977). Clearly, the legislature, by the word 'shall', intended the clerk of court to collect and disburse restitution payments. Upon an order of restitution by the sentencing court, it becomes mandatory for the office of the clerk to administer the restitution. "The clerk of each of the courts shall exercise the powers conferred and perform the duties enjoined upon him by statute and by the common law; and in the performance of his duties he shall be under the direction of his court." Section 5-7-101, W.S. 1977. Although the statute does not specifically provide for disbursement, where the legislature provided for the clerk to collect restitution it can be inferred that the legislature also intended the clerk to disburse restitution. Section 14-6-229(f)(i), W.S. 1977, allows a juvenile court to order a child to make restitution for any damage or loss caused by his wrongful act. Title 14 of the Wyoming Statutes does not specifically state a procedure for collecting and disbursing restitution payments from juveniles. However, Wyoming courts have [*3] held that statutes dealing with related subjects or having the same general purpose must be read in pari material in order to ascertain intelligent meaning and achieve uniformity. Kuntz v. Kinne, Wyo., 395 P.2d 286 (1964); Stringer v. Board of County Commissioners of Big Horn County, Who., 347 P.2d 197 (1960). Therefore, Section 14-6-229(f)(i), W.S. 1977, and Section 7-13-312, W.S. 1977, must be read in pari materia as to methods of collecting and disbursing restitution payments from both juvenile and criminal defendants.
Revenue flow
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Wyoming 1987 Wyo. Att'y Gen. Op. No. 87-006 (May 28, 1987) 1987 Op. Atty Gen. Wyo. 19 After incarceration the board of parole has exclusive jurisdiction to administer the restitution imposed at sentencing by the court.
After incarceration the board of parole has exclusive jurisdiction to administer the restitution imposed at sentencing by the court. Section 7-13-424, W.S. 1977, provides the board of parole with
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a comprehensive scheme of parole restitution: the board shall provide for restitution on parole, may modify restitution imposed by the sentencing court, modify restitution imposed by the board or waive it entirely. Under § 7-13-413, W.S. 1977, the board is given the power to adopt rules and regulations governing the performance of duties of parole officers and the administration of the act. Thus it is reasonable that the probation and parole board could take on the responsibility of collecting and disbursing restitution if so ordered by the court.
Enforcement
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Wyoming 1987 Wyo. Att'y Gen. Op. No. 87-006 (May 28, 1987) 1987 Op. Atty Gen. Wyo. 19 Wyoming Crime Victims Compensation Commission, created through the Crime Victims Compensation Act, can collect restitution and authorize and order compensation payments be paid directly to a victim or third party.
Sections 1-40-101 through 1-40-119, W.S. 1977, (1986 Cum. Supp.) created the Crime Victims Compensation Act. (Laws 1985, ch. 213, § 1). Under this Act, restitution paid by a criminal defendant
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pursuant to §§ 7-13-307, through 7-13-315, W.S. 1977, goes directly to the Wyoming Crime Victims Compensation Commission after the Commission awards compensation to the victim. Such restitution is deposited in the Commission's account and used to set off against a judgment in favor of the state in a civil action. Section 1-40-112(c)(i), W.S. 1977, (1986 Cum. Supp.). [*7] The Commission reduces the amount of the compensation due the victim by the amount of restitution paid. Section 1-40-122(c)(ii). If restitution has been ordered, but not paid, the victim may be compensated by the Commission and shall reimburse the Commission when and if the defendant pays. Section 1-40-112, W.S. 1977 (1986 Cum. Supp.) was amended by the 1987 general session of the 49th Wyoming Legislature. A new subsection (g), effective May 22, 1987, states any payment of benefits to, or on behalf of a victim or other claimant under the Crime Victims Compensation Act creates a debt due the state by any person found by a criminal court to have committed a criminal act. Payment of the debt shall be a condition of probation, Laws 1987, ch. 119, § 1-40-112(g). In making payment of the debt a condition of probation or parole, the court or board of parole sets the schedule or amount of payments. The Commission has the authority to authorize compensation payments directly to the victim or to a third party. Section 1-40-108(d)(iii), W.S. 1977, (1986 Cum. Supp.). Similarly, the court could order direct payments to victims under the Restitution to Crime Victims Act, Sections 7-13-307 through 7-13-315, W.S. 1977. The victim's remedies for non-payment would be reporting the failure to the prosecuting attorney, the court or the probation and parole officer if applicable.
Revenue flow