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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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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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Montana 49 Mont. Op. Att'y Gen. No. 18, 2002 WL 1009805 Montana-Attorney General opinion What authority do county or municipal courts have to set fines or fees?
The Montana Constitution and Montana law authorize amunicipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be
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paid in installments.
If the court finds some form of bail necessary, however, Mont. Code Ann. § 46-9-301, provides more specific factors for a court to consider. These factors include, among other matters
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not related to the safety of the victim and the community, that the amount shall be “not oppressive,” and that the amount shall be “considerate of the financial ability of the accused.” Id., §§ 46-9-301(4) and (6). The time-pay bail bonds system comports with these requirements.The Montana Constitution and Montana law authorize a municipal court judge to release a defendant on a time-pay bail bond, defined as a bond in an amount set by the judge to be paid in installments.
Ability to pay
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Montana 41 Mont. Op. Att'y Gen. No. 59 Montana-Attorney General opinion Other applicable opinions Cash bail for minor offenses may be increased to include applicable surcharges
In order to collect the additional $10 charge required by section 46-18-236, MCA, a court may exercise its power under section 46-9-302, MCA, and increase the bail schedule for minor
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offenses in a like amount.
Enforcement
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Oklahoma 1999 OK AG 58 Open Records Act Other applicable opinions
1. The Oklahoma Open Records Act applies to criminal pleadings
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2. Courts and District Attorneys must provie "prompt reasonable access" 3. District Attorneys must maintain confidential records
¶15 It is, therefore, the Opinion of the Attorney General that: 1. The pleadings in a criminal case, particularly the information, are "records" within the meaning of the Oklahoma Open
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Records Act, 51 O.S. 24A.3 (1998). A court clerk must make such pleadings available for public inspection and copying once the district attorney has filed the pleading with the court clerk, 51 O.S. 24A.5 (1998), unless the pleading has been sealed by a court or is protected by a privilege of confidentiality, such as the confidentiality of a grand jury indictment by 22 O.S. 385, until such time as the order of the court expires or is removed and until the grand jury indictment is made public pursuant to statutory provision. A district attorney may keep information contained within the district attorney's litigation files confidential and so not disclose an information or other pleadings. See 51 O.S. 24A.12 (1991). 2. A court clerk or district attorney has no authority to withhold public records from inspection and copying. Such officers must provide "prompt, reasonable access" to the public pursuant to 51 O.S. 24A.5 (1998). This generally may include only the time required to locate and compile such public records. Id. 3. A district attorney may keep confidential records contained in the litigation files of that office. Police departments are not required to provide public access to records of the police department except as provided in Section 51 O.S. 24A.8 of the Open Records Act or pursuant to court order. Neither a district attorney nor a police department must make available for public inspection and copying a record which includes a list of all charges contained in an information. See 51 O.S. 24A.2 - 51 O.S. 24A.8 and 51 O.S. 24A.12 (1998).
Transparency
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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