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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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Kansas Kan. Atty. Gen. Op. No. 95-101, 1995 WL 643346 Courts--District Courts--District Judges; Power and Authority; Contingency Fee Contract to Collect Court Costs, Fines, Restitution and Attorney Fees Which fines and/or fees may be collected by a private vendor? A district court does not have the inherent power to contract with a collection agency to collect unpaid court costs, fines, attorney fees, and restitution.
"[W]hile the court may use the state setoff program, it is our opinion that the court does not have the inherent power to contract with a private collection agency to
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collect these debts...Contracting with a collection agency to collect debts owed to the state, the county and crime victims is not associated with managing a court's affairs nor is it necessary to achieve an orderly and expeditious disposition of cases. Court costs and restitution are civil judgments and the state, the county and the crime victim may choose to pursue other collection alternatives which a court initiated contract may foreclose. For example, the state, through its department of administration, and the county may want to open the bidding process for collection services. As far as restitution is concerned, the idea behind it is to make the crime victim whole. State v. Hinckley, 13 Kan. App. 2d 417, 419 (1989). Laws enacted in 1995 suggest that the collection of restitution is a private right belonging to the crime victim by giving the latter the ability to file the award as a civil judgment and requiring the victim to credit any amount received from the restitution award against any subsequent civil recovery. L. 1995, ch. 257, § 9-12. Allowing the district court to pay a portion of the restitution award as a collection fee affects the victim's right to collect the entire amount and may reduce the amount a victim could recover against the convicted criminal."
Enforcement
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Kansas Kan. Att'y Gen. Op. No. 84-25 (Mar. 20, 1984) Criminal Procedure—Costs in Criminal Cases—Liability for Costs What authority do county or municipal courts have to set fines or fees?
A district magistrate or municipal court judge may not assess a defendant for "room and board" costs associated with his or her confinement in a city or county jail, unless
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the legislature enacts a statute so providing.
 it is our opinion that there is no statutory authority whereby a district magistrate judge or municipal court judge may assess a defendant for ‘room and board’ costs associated with his or her
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confinement in a city or county jail. Although what has been said above is dispositive of the question raised, we are impelled to note that, where the legislature enacts a statute so providing, the state or a subdivision thereof may initiate proceedings against a prisoner for reimbursement of the expenses attributable to his or her incarceration. See 72 C.J.S., Prisons § 26(e); 139 A.L.R. 1028; McAuliffe v. Carlson, 377 F.Supp. 896, 900 (1974).
Fines and fees
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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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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