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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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Virginia 2000 Va. Op. Att'y. Gen. (2000) Costs and fines dischargeable in bankruptcy Other applicable opinions
"Criminal costs, which may or may not be contingent upon sentence but are associated with conviction, and traffic fines are nondischargeable in Chapter 7 bankruptcy proceedings. Debt for restitution or
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criminal fine included in criminal sentence is nondischargeable in Chapter 13 bankruptcy; criminal fines not contingent upon sentence, traffic fines arising from traffic infractions, and civil traffic fines are dischargeable in Chapter 13 bankruptcies."
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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).
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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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Arizona State v. Robinson, 142 Ariz. 296, 297–98, 689 P.2d 555, 556–57 (Ct. App. 1984); 1987 Ariz. Op. Att'y Gen. 233 (1987) Arizona-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?
Arizona courts have only recognized that there must be an ability to pay proceeding where a party may be incarcerated. Such a determination should consider whether the probationer made good
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faith efforts to pay.
"In view of the United States Supreme Court's holding in Bearden v. Georgia, supra, we conclude that the trial court's order, revoking appellant's probation solely on the grounds that he
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failed to complete payments on the fine and restitution, without regard to his ability to pay, amounts to a deprivation of appellant's conditional freedom in violation of the fundamental fairness required by the Fourteenth Amendment.” “In considering a recommendation regarding a probationer who has not fully paid restitution and fines, it would be appropriate for a probation officer to consider, as guidelines, certain statutory requirements the courts must follow. A.R.S. § 13-901(E) authorizes a court to terminate a period of probation and discharge the probationer earlier than the term originally imposed only if it is in the interests of justice and “if the conduct of the defendant on probation warrants it.” A.R.S. § 13-810 establishes contempt sanctions for intentional refusal to make good faith efforts to pay restitution and also provides for modification of restitution orders if a defendant has been unable to pay restitution despite good faith efforts to do so. It would, therefore, also be appropriate for a probation officer to consider the extent of a probationer's ability to pay and whether the probationer made good faith payment efforts or intentionally refused to make efforts to pay in determining whether the defendant's conduct on probation warrants early termination and discharge from probation. The central purpose for all of these statutes is the protection of victims and a probation officer should always exercise his discretion with that purpose clearly in mind.”
Ability to pay
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Arizona 1989 Ariz. Op. Att'y Gen. 134 (1989) Arizona-Attorney General opinion Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution?
The Arizona Constitution allows the Arizona Supreme Court to allow local courts to make indigency standards, but it is unlikely that local municipal bodies can set such standards without legislative
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delegation.
"The Arizona Supreme Court's rulemaking power is derived from Ariz. Const. art. VI, § 5 which gives the supreme court the “[p]ower to make rules relative to all procedural matters
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in any court.” See also Barsema v. Susong, 156 Ariz. 309, 314, 751 P.2d 969, 974 (1988). The supreme court is authorized to delegate indigency determinations to the presiding judge of the superior court in each county by Ariz. Const. art. VI, § 11 which provides that the presiding judge of each county “shall exercise administrative supervision over the superior court and judges thereof in their counties, and shall have other duties as may be provided by law or by rules of the Supreme Court.”“The Arizona Supreme Court has authorized the presiding judge of each county to establish a procedure for the appointment of counsel by the Superior Court for each indigent person entitled to the appointment of counsel. Ariz. Const. art. VI, § 11 (emphasis added). We have not found any constitutional or statutory authority under which the presiding judge may delegate to a county the duty of making indigency determinations and assessments respecting the appointment of counsel in Superior Court criminal proceedings. Moreover, a county has only such powers as have been expressly or impliedly conferred by the legislature. Davis v. Hidden, 124 Ariz. 546, 548, 606 P.2d 36, 38 (App.1979); Maricopa County v. Black, 19 Ariz.App. 239, 241, 506 P.2d 279, 281 (1973). The powers of a county are exercised by and through its board of supervisors. A.R.S. § 11–201; see also Davis v. Hidden, 124 Ariz. at 548, 606 P.2d at 38; Ricca v. Bojorquez, 13 Ariz.App. 10, 13, 473 P.2d 812, 815 (1970). The powers and duties of the counties' boards of supervisors are set forth in A.R.S. § 11–251 and do not include indigency screening or determinations for the superior courts. Thus, Pima County has not been conferred such power by the Legislature.”
Ability to pay
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Arizona See, e.g., State v. Townsend, No. 1 CA-CR 11-0420, 2012 WL 3306960, at *3 (Ariz. Ct. App. Aug. 14, 2012) (choosing not to answer who has the burden of proof) Arizona-Attorney General opinion Who has the burden of proof in an ability to pay determination? What is the standard of proof required? Arizona Courts have not yet answered this question.
"The State contends that Townsend bore the burden of proving that she was unable to pay restitution. Even assuming that the State is correct, we conclude Townsend met that burden
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of proof here."
Ability to pay
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Arizona State v. Lopez, 175 Ariz. 79, 81, 853 P.2d 1126, 1128 (Ct. App. 1993) Arizona-Attorney General opinion Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? Case law has established that ability to pay need not be considered when imposing fines or fees.
"Therefore, although we will consider ability to pay as one factor toward a claim that a fine is disproportionate, the trial court does not have to explicitly consider the defendant's
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ability to pay when imposing a fine or its payment schedule"
Ability to pay
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Arizona Ariz. Op. Att'y Gen. No. I95-18 (Dec. 18, 1995) Arizona-Attorney General opinion What authority do county or municipal courts have to set fines or fees? Municipal Courts only have authority to collect the fines and fees which state statutes provide for.
"Only city councils of charter cities which are established under Ariz. Const. art. XIII, § 24 may establish fees and surcharges to be collected by city courts, if their charters
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or ordinances authorize them to do so.5 City courts are also subject to the administrative supervision of the Supreme Court. Ariz. Const. art. VI, § 3; Winter v. Coor, 144 Ariz. 56, 59, 695 P.2d 1094, 1097 (1985).Ordinary municipal corporations such as cities and towns may not, however, establish court fees and surcharges to be collected by municipal courts within their jurisdiction. Unlike charter cities, their authority derives solely from state statutes. Maricopa County v. Maricopa County Mun. Water Conservation Dist., 171 Ariz. 325, 830 P.2d 846 (App. 1991). In establishing various municipal court fees under A.R.S. § 22-404(B), the Legislature prohibited any others “[e]xcept as otherwise provided by law.” We have reviewed the statutes in Title 9 relating to the authority of non-charter cities and towns and found no statutes authorizing a city or town to set court fees and surcharges."
Fines and fees
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Arizona 1989 Ariz. Op. Att'y Gen. 134 (1989) Arizona-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? The Arizona Constitution grants the Supreme Court the right to impose binding state-wide rules for procedural matters related to fines and fees.
"The Arizona Supreme Court's rulemaking power is derived from Ariz. Const. art. VI, § 5 which gives the supreme court the “[p]ower to make rules relative to all procedural matters
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in any court.” "
Enforcement
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Oregon OP-6203 (1988) Oregon-Attorney General opinion What authority do county or municipal courts have to set fines or fees? Fines and fees must fall within the limits imposed in the state legislature's max-min scheme It is axiomatic that state officers may administer public funds only in the manner authorized or directed by the Oregon Constitution or controlling statutes. Fines and fees
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Oregon OP-6203 (1988) Oregon-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? The Chief Justice in particular has wide latitude in determining these rules
The Chief Justice of the Oregon Supreme Court is the administrative head of the Judicial Department. ORS 1.002(1). ‘The Chief Justice shall exercise administrative authority and supervision over the courts
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of this state consistent with applicable provisions of law * * *.’ Id. Pursuant to that authority, the Chief Justice may, inter alia, ‘issue orders appropriate to that exercise.’ ORS 1.002(1)(a). Accordingly, these statutes grant to the Chief Justice the power to require judges and clerks to comply with statutes that govern the imposition, collection, and disposition of fines and penalty assessments. See also ORS 1.025 (governing duties with regard to matters relating to the administration of justice).
Fines and fees
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Alaska Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974) Alaska-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?
Yes. For example, a defendant who is facing civil contempt must be guaranteed the right to counsel because of the "very real threat of incarceration."
"Constitutional considerations lead us to the conclusion the defendant's interests will not be adequately protected without the assistance of appointed counsel. The Alaska Constitution provides that ‘(n)o person shall be
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deprived of . . . liberty . . . without due process of law.4 The federal constitution similarly provides that no state may deprive any person of liberty without due process. Mr. Otton's interest in freedom from restraint has constitutional dimensions. State action which infringes upon that interest must be in accordance with the requirements of due process."
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Alaska
Jones v. State, No. A-2629, 1989 WL 1595378, at *1–2 (Alaska Ct. App. Feb. 1, 1989) (quoting Zimmerman v. State, 706 P.2d 343, 344 (Alaska App.1985); Karr v. State, 686
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P.2d 1192, 1197 (Alaska 1984)); Alaska Stat. Ann. § 12.55.051
Alaska-Attorney General opinion Does allowing different municipalities to set their own indigency standards or fines/fees violate the equal protection afforded by the state’s constitution? Indigency is determined by trial courts in Alaska. Trial courts are not municipal in nature, but are State courts.
"Under AS 12.55.035, the trial court is under a mandatory duty to consider a defendant's earning capacity in connection with the imposition of any fine. The court's inquiry must be
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“serious” and should include an analysis of any assets that the defendant presently owns, as well as his past and future earning capacity. A determination of a defendant's future earning capacity necessarily requires the court to make:preliminary findings of fact regarding [the defendant's] mental and physical health, [his] education, [his] job skills if any, the kinds of jobs which [he] has held in the past and is capable of performing in the future and the availability of such jobs in the communities in which [the defendant] will likely reside. Once these findings are made, the court is in a position to determine [the defendant's] likely future earnings and the extent to which those earnings will cover [his] likely future expenses for food, clothing and shelter and leave [him] a surplus out of which to pay restitution. The court must fix the amount of the fine and the terms of payment to fall within the realistic limits of the defendant's earning capacity. Failure to make the appropriate inquiry and findings requires automatic reversal and remand." " If, at a hearing under this subsection, the defendant proves by a preponderance of the evidence that the defendant will be unable through good faith efforts to satisfy the order requiring payment of the fine or restitution, the court shall modify the order so that the defendant can pay the fine or restitution through good faith efforts. The court may reduce the fine ordered, change the payment schedule, or otherwise modify the order. The court may not reduce an order of restitution but may change the payment schedule."
Ability to pay
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Alaska Alaska Stat. Ann. § 12.55.051(j) Enforcement of fines and restitution Which fines and/or fees may be collected by a private vendor? This has not been articulated by the court or by the Attorney General. Statutory law seems to indicate that any fine or fee can be collected by a private vendor
(j) The Department of Law may enter into contracts on behalf of the state to carry out the collection procedures of this section. The Department of Law may adopt regulations
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necessary to carry out the collection procedures of this section, including the reimbursement of attorney fees and costs in appropriate cases.
Enforcement
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Alaska Alaska Stat. Ann. § 12.55.051 Enforcement of fines and restitution Who has the burden of proof in an ability to pay determination? What is the standard of proof required? Defendant has the burden of proof by a preponderance of the evidence.
"[U]nder this subsection, the defendant proves by a preponderance of the evidence that the defendant will be unable through good faith efforts to satisfy the order requiring payment of the
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fine or restitution, the court shall modify the order so that the defendant can pay the fine or restitution through good faith efforts. The court may reduce the fine ordered, change the payment schedule, or otherwise modify the order."
Ability to pay
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Alaska Alaska Stat. Ann. § 12.55.051; Dodge v. Municipality of Anchorage, 877 P.2d 270, 272 (Alaska Ct. App. 1994) Alaska-Attorney General opinion Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? Statutory law and case law suggest that the ability to pay need not be determined until after imposition.
"A defendant who has been sentenced to pay a fine or restitution may request a hearing regarding the defendant's ability to pay the fine or restitution at any time that
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the defendant is required to pay all or a portion of the fine or restitution." "The law in effect at the time of Dodge's sentencing imposed no duty upon the court to inquire into Dodge's ability to pay the fine imposed."
Ability to pay