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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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Alabama Ala. Att'y Gen. Op. 2003-086 Alabama-Attorney General opinion
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?
An indigent defendant facing contempt proceedings where he is sentenced to a term of imprisonment, which is suspended, is entitled to the appointment of counsel pursuant to Alabama v. Shelton.
Under Alabama v. Shelton, 122 S. Ct. 1764, 1767 (2002), a defendant is entitled to counsel if he: (1) is indigent; (2) has not waived the right to coun¬sel;
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and (3) is given a suspended sentence that may “end up in the actual depri¬vation of [his] liberty[.]” Based on the scenario you have presented, if the con¬temnor is indigent and, as it appears, he was not advised of and did not waive the right to counsel, he was entitled to an attorney at the time he pleaded guilty to the contempt charges. Consequently, he cannot be incarcerated on the con¬tempt charges. Under Shelton, appointment of counsel for indigent defendants is a con-stitutional prerequisite to the imposition of a conditional or suspended term of imprisonment. Although the contempt proceeding is considered “quasi-criminal” in nature and characterized as a “violation,” rather than a “crime” [see Ivey v. State, 698 So. 2d 179, 184 n.2 (Ala. Crim. App. 1995), aff’d, 698 So. 2d 187 (Ala. 1997)], because the defendant faces the possibility of incarceration [see ALA. CODE §13A-5-7 (1994) (stating that a defendant faces a term of imprisonment for both misdemeanors and violations)], he is entitled to counsel. See Lassiter v. Dep’t of Soc. Serv., 452 U.S. 18, 25 (1981) (recognition of right to appointed counsel in a civil proceeding “where the litigant may lose his physical liberty if he loses the litigation”); see also Opinion to Rex K. Rainer, Director, Department of Finance, dated July 23, 1982, A.G. No. 82-00465; Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983).
Enforcement
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Alabama Ala. Att'y Gen. Op. 2002-036 Alabama-Attorney General opinion
The United States Supreme Court and the Supreme Court of Alabama have set forth minimal due process procedures to be afforded to a probationer in a probation revocation hearing. In a
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probation revocation hearing, the probationer must be given written notice of the claimed violations of probation, a written statement by the factfinder as to the evidence relied on, and the reasons for revoking his probation. Because review of probation revocation proceedings from district or municipal court is in the nature of certiorari, no appeal bonds would be set. The right to counsel in probation revocation proceedings is not absolute. The judge conducting the probation hearing should decide on a case-by-case basis whether due process requires that an indigent probationer be represented by counsel.
the Supreme Court of Alabama has set forth the requirements and guidelines that must be met for minimal due process to be accorded the probationer under Morrissey and Gagnon before
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his pro¬bation can be revoked. These guidelines include: 1. Written notice to the probationer of the claimed violations of probation. 2. Disclosure to the probationer of evidence against him or her. 3. Opportunity of probationer to be heard in per-son and to present witnesses and documentary evidence. 4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation). 5. A written statement by the judge as to the evi-dence relied on and reasons for revoking proba-tion. 6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a revocation hearing. Judges preside over retrials. There appears to be no sound rea-son why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.) 7. We see no valid reason for having two hear¬ings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the pro¬bationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance. 8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel. 9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960). Armstrong v. State, 294 Ala. 100, 102-03, 312 So. 2d 620, 622-23 (Ala. 1975) (footnote omitted).
Enforcement
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Alabama Ala. Att'y Gen. Op. 1998-00043 Alabama-Attorney General opinion What authority do county or municipal courts have to set fines or fees?
A municipality may enter into a contract with a pri¬vate probation service to fulfill the needs of the munic¬ipal court. Furthermore, a municipal judge can assess a supervision fee upon
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each probationer as a condition of probation. This fee, however, cannot exceed the proba¬tioner's ability to pay.
Court costs are prescribed by statute and cannot be extended. See Attorney General's Opinion to Honorable Steven E. Blair, dated August 11, 1995, A.G. No. 95-00283. The municipal probation
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statute, however, gives the judge broad authority to place conditions on probation. ALA. CODE _ 12-14-13 (1995). The statute not only pro¬vides a listing of conditions that the judge may require the probationer to comply with, but also gives the judge the authority to require the probationer to comply with "any other conditions." Id. Therefore, it is the opinion of this Office that a municipal judge can assess a super¬vision fee upon each probationer as a condition of probation. Any condition placed on a probationer that requires the payment of a fee, fine, or restitution should not exceed the probationer's ability to pay. See ALA. R. CRIM. P. 27.1, Committee Comments.
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Alabama Ala. Att'y Gen. Op. 2012-027 Alabama-Attorney General opinion Other applicable opinions Non-indigent defendants may be incarcerated for failure to pay a fine after serving his or her sentence for the underlying offense
Subject to the limitations of Rule 26.11 of the Alabama Rules of Criminal Procedure, the court may place a nonindigent defendant in jail for failure to pay a fine after
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the defendant has completed his or her sentence or probation for the underlying offense. The defendant may serve time until the fine is paid or no longer than one day for each $15 of the fine, no longer than the maximum term of imprisonment for the offense, and no longer than one year if the offense is a felony.
Enforcement
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Alabama Ala. Att'y Gen. Op. 2002-336 Alabama-Attorney General opinion Other applicable opinions A municpality may publish, in a newspaper of local circulation, the names of those individuals with outstanding warrants for unpaid fines and the amount of those fines.
This Office has previously opined that municipal court records are public records to which the public has access with certain limitations as to confidential information contained therein. Opinion of
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the Attorney Gen-eral to the Honorable Bernice Kuykendall, Mayor, City of Cordova, dated September 2, 1987, A.G. No. 87-00303. As public records, the contents thereof, with certain limitations, may be published in the newspaper. Opinion of the Attorney General to the Honorable William T. Musgrove Jr., Attorney, City of Florence, dated October 6, 1988, A.G. No. 89-00003. The name, address, birth date, offense, and the amount of the past-due fine, as nonconfidential information contained in a municipal court record, may be published in a local newspaper as part of the collec-tion process. Id.
Enforcement
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Alabama Ala. Att'y Gen. Op. 2000-020 Alabama-Attorney General opinion Other applicable opinions
When a defendant is arrested for failure to appear or failure to pay, Rule 4.3(b)(3), ARCrP, requires that a judge or magistrate conduct an initial appearance hearing within 72 hours
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of arrest if the defendant has not obtained his or her release from jail.
Regarding circumstances where a defendant fails to pay court-ordered monies, Rule 26.11, ARCrP, provides that a judge must conduct a hearing to determine the financial means of a defendant for
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the payment of court-ordered fines and costs, and authorizes imprisonment for non-indigent defendants who fail to pay. Rule 27.2, ARCrP, authorizes a judge to order a defendant to pay court costs and fines as a condition of probation. As previously discussed, in cases involving breaches of con¬ditions of probation, including conditions requiring payment of fines, costs, restitution, or other court-ordered assessments, the court must con¬duct an initial appearance hearing upon the arrest of a probationer before the probationer is incarcerated. The court must inquire into the proba¬tioner’s financial status and determine whether the probationer is indigent since incarceration of an indigent for nonpayment is prohibited.
Enforcement
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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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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
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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, 195–96, 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.
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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
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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.
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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
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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