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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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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
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the proceedings may only result in additional fines or non-incarceration penalties?
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
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the 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)
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W. Va. Code Ann. § 61-11A-5
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,
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in 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.
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
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avoid imprisonment.
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.
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Code §50-3-2.)
“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
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pursuant to statute.”
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
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sentence of incarceration or imposition of fine.
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
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and procedure, which shall have the force and effect of law.”
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
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for 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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California 65 Cal. Op. Att'y Gen. 581 (1982) "May a penalty assessment be levied against a criminal defendant who does not have a present ability to pay such assessment?"
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?
Indigent defendants cannot be imprisoned solely because they cannot pay a penalty. However, when indigent defendants refuse or fail to meet the terms of an alternative option, they can be
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imprisoned, as the court sees them the same as a non-indigent defendant.
The effect of Antazo was to bar a trial judge from sending a defendant to jail or prison solely because he was unable to pay the monetary penalty. (In re
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Siegel (1975) 45 Cal.App.3d 843, 846.) However, as Antazo makes clear, such a penalty may nevertheless be imposed upon an indigent in certain circumstances (3 Cal.3d 100, 116):‘[O]ur holding is simply that an indigent who would pay his fine if he could, must be given an option comparable to an offender who is not indigent. When the indigent offender refuses to avail himself of such alternatives at the inception, or defaults or otherwise fails to meet the conditions of the particular alternative which is offered him without a showing of reasonable excuse, the indigent offender becomes in the eyes of the court exactly the same as the contumacious offender who is not indigent. When either of these conditions obtain the offender's indigency ceases to be dispositive and he may, consistently with the mandate of the equal protection clause, be relegated to ‘working out’ his fine by imprisonment.' 65 Cal. Op. Att'y Gen. 581 (1982).
Ability to pay
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California 66 Cal. Op. Att'y Gen. 440 (1983). Personal use of fines and fees prohibited Under what circumstances does a conflict of interest in the imposition or enforcement of court debt violate state law? Judges cannot receive fines or fees for personal use.
Article VI, section 17, of the California Constitution, provides: “A judge of a court of record may not practice law and during the term for which the judge was selected
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is ineligible for public employment or public office other than judicial employment or judicial office. A judge of the superior or municipal court may, however, become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy. Acceptance of the public office is a resignation from the office of judge. “A judicial officer may not receive fines or fees for personal use.” 66 Cal. Op. Att'y Gen. 440 (1983).
Revenue flow
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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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Florida AGO 99-03 Municipality, contract with collection agency Which fines and/or fees may be collected by a private vendor? Liens (at least) A municipality may enter into an agreement with a collection agency to compromise code enforcement board liens and pursue collection through litigation. Enforcement
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Florida AGO 2008-47 Courts, funds to renovate courthouse tower/café Other applicable opinions
the tower of the Sarasota County Courthouse as an integral structural component of the courthouse facility may be renovated using funds derived from section 318.18(13), Florida Statutes. Moreover, where the
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county has made the decision to include a café in the county courthouse facility for use by court personnel and the general public, revenue collected pursuant to section 318.18(13), Florida Statutes, to fund court facilities may be used for the renovation of such space.
Revenue flow
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Florida AGO 2008-46 Counties -- Court Costs Other applicable opinions
Accordingly, it is my opinion that revenues generated by section 939.185, Florida Statutes, may be used to fund an alternative sanctions coordinator position created pursuant to sections 984.09 and 985.037,
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Florida Statutes. Moreover, it is ultimately within the county’s discretion whether to fund a "local requirement" designated by the chief judge of the circuit.
Revenue flow
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Florida AGO 2007-52 Clerks of Court, debts referred to collection agent Other applicable opinions
In light of the language of sections 28.246 and 28.35, Florida Statutes, it is my opinion that the clerk of court is not authorized to charge a fee to the
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collection agent or attorney for support services provided by the clerk when an unpaid amount owed to the clerk is referred to an agent for collection. Rather, any administrative support costs incurred by the clerk after referring unpaid fines and fees for collection should most appropriately be paid from "filing fees, service charges, court costs, and fines" as provided in section 28.35(4)(a), Florida Statutes.
Revenue flow
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Florida AGO 2002-61 Additional $2 cost for criminal justice education Other applicable opinions
Thus, this office concluded that the additional costs collected under section 943.25(13), Florida Statutes (1993), could only be used for courses that relate directly to criminal justice education and training
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courses and may not be used to fund general education for law enforcement officers, except in those instances where completion of general education courses is a requirement for successful completion of a criminal justice degree program.
Fines and fees
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Florida AGO 2002-10 Local governments' assessment of court costs Other applicable opinions
Accordingly, it is my opinion that the assessment authorized in section 938.15, Florida Statutes, is payable to the county or municipality by an individual who has been convicted of a
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violation of the respective county or municipal ordinance and the court has included payment of the assessment in its order.
Fines and fees
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Florida AGO 2001-40 Teen court, mandatory court cost assessment Other applicable opinions
In sum: 1. Section 938.19, Florida Statutes, does not authorize the county to choose the offenses for which the $3 assessment authorized by section 938.19, Florida Statutes, may be imposed; rather,
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the statute specifies those offenses for which the assessment will be imposed. 2. Section 938.19, Florida Statutes, requires that funds received from the $3 assessment be deposited into an account specifically for the operation and administration of the teen court and does not authorize application of the funds to other programs or to the county's general revenue fund.
Fines and fees
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Florida AGO 96-38 Clerks, collection of costs for crimes compensation Other applicable opinions
1. The additional costs authorized in section 960.20, Florida Statutes, are assessed on a per-case, rather than a per-count, basis. Therefore, such costs may not be assessed for each count
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for which the person pleads guilty or nolo contendere or is convicted or adjudicated delinquent. 2. The date on which the offense occurs determines the amount of additional costs. Thus, a person who commits a crime prior to July 1, 1992, but is convicted of the crime after that date would be assessed the amount authorized by section 960.20, Florida Statutes, on the date of the offense. 3. If the offense for which probation has been revoked constitutes a felony, misdemeanor, delinquent act, or criminal traffic offense and the probationer is adjudicated guilty of this offense or pleads no contest to the charges, the additional costs may be imposed. However, if the offense for which probation is revoked results only in the imposition of a sentence that was withheld when the defendant was placed on probation, section 960.20, Florida Statutes, does not authorize the imposition of such additional costs. 4. Section 960.20, Florida Statutes, requires that the court must state on the record in detail the reasons for waiving the assessment of additional costs.
Fines and fees
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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).
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