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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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Delaware Del. Op. Atty. Gen. 97-IB04 (Del.A.G.), 1997 WL 111291 Town's authority to establish a mail-in center for collecting fines and fees for motor vehicle violations. Other applicable opinions
Under State law, for the Town to operate a voluntary assessment system, summonses issued by the Town police must be returnable to the Mayor's Court. Only the ?Courts of the
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Justices of the Peace may establish a mail-in fine center, ... in which case the summons may be made returnable to the applicable mail-in fine center.? 21 Del. C. Section 709(a) The statute does not authorize a municipality to establish a mail-in fine center for payment of fines for motor vehicle offenses which occur within the town. Nor can a town avail itself of the voluntary assessment procedure unless it has an Alderman's or Mayor's Court that is ?duly established.? 21 Del. C. Section 703(d). Stated differently, there must be an actual court, to which payments for motor vehicle offenses can be remitted ?to dispose of the charge without the necessity of personally appearing in the court to which the summons is returnable.? Id. Section 709(a). In conclusion, the Town of Elsmere is not an entity designated by statute to receive criminal history information from DELJIS. It may only operate a voluntary assessment system through a duly established Alderman's or Mayor's Court. In the absence of such a court, it may not charge, impose or collect ?court costs? or any similar fee from persons charged with motor vehicle violations within its boundaries.
Enforcement
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Delaware Del. Op. Atty. Gen. 93-I004 (Del.A.G.), 1993 WL 594345 Department of Correction's ability to assess a supervision fee on offenders and determine ability to pay Other applicable opinions
The Department, subject only to powers vested in the judicial and certain executive departments and officers of the State, shall have the duties set forth in this chapter and the
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exclusive jurisdiction over the care, charge, custody, control, management, administration and supervision of: (14) Collecting as a condition of supervision, a fee based on the Accountability Level of the offender. An offender sentenced to an Accountability Level I sanction shall be charged a $10 monthly fee; an offender sentenced to an Accountability Level II sanction shall be charged a $20 monthly fee; and an offender sentenced to an Accountability Level III sanction shall be charged a $25 monthly fee. The Director of Community Services shall develop policies and procedures with regard to determining an offender's ability to pay the monthly fee. Such policies and procedures shall be applied on a consistent basis to all offenders, and shall be subject to approval by the Commissioner of Correction. In the event the Department determines an offender is unable to pay the monthly fee due to lack of employment or other significant extenuating circumstances, such as an offender's responsibility to remit payment for victim compensation, restitution or child support, said inability shall not constitute a violation of supervision. The offender shall remain liable to pay the fee at such time as the Department determines he or she is able to do so. (Emphasis Supplied) For the reasons outlined below, we conclude that the Department is permitted to assess a supervision fee on offenders sentenced prior to the effective date of 11 Del.C. Sec. 6504(14).
Ability to pay
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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 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