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|State||Citation||Description/Statute Name||Question||Brief answer||Language from the opinion||When does the case apply?|
|Indiana||2003 Ind. Op. Att'y Gen. No. 2 (Jan. 31, 2003)||RE: Local Ordinances and State Laws||What authority do county or municipal courts have to set fines or fees?||Cities and towns may not enact local ordinances similar to state laws in order to generate revenue||
The Home Rule Act expressly prohibits local units of government from adopting local ordinances which assign a penalty for an act that constitutes a crime or infraction under state statute.+ See more
A state statute must be evaluated to determine if the statute deals comprehensively with a subject matter; local ordinances might not be preempted if a state statute does not deal comprehensively with a subject matter and there is room for supplemental local regulation. However, a city or town may not enact a local ordinance where there is an existing state statute dealing comprehensively with the subject matter and local law is considered preempted by state law.
|Indiana||2010 Ind. Op. Att'y Gen. No. 1 (May 12, 2010)||Re: Civil Forfeitures and the Common School Fund||Other applicable opinions||Civil forfeitures are not committed to the common school funds like criminal fines and fees under the state constitution||
It is our opinion that Article 8, § 2 of the state constitution does not apply to forfeiture actions brought under Ind. Code ch. 34-24-1. Article 8 of the Indiana+ See more
Constitution provides for the funding of the common school fund, part of which is derived “from the fines assessed for breaches of the penal laws of the State; and from all forfeitures which may accrue.” Art. 8, § 2. A proceeding under Indiana's forfeiture law is civil in nature, and it is only fines and forfeitures from criminal proceedings that must be paid into the common school fund.
|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+ See more
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+ See more
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|
|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+ See more
offenses in a like amount.
|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+ See more
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+ See more
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.
|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 states 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+ See more
to this effect.It appears that the municipal provision outlined above complies with the procedures described in T.C.A. § 4024104, 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|
|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+ See more
an agent to collect, or institute proceedings to collect, or establish an in-house collection procedure to collect, fines, costs and litigation taxes."
|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+ See more
|Ability to pay|
|Tennessee||Tenn. Code Ann. § 40-24-104; Tenn. Op. Att'y Gen. No. 89-03 (Jan. 12, 1989)||Imprisonment for Contempt for NonPayment 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+ See more
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|
|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+ See more
for a violation of a municipal ordinance, absent a valid waiver of the defendant's Article VI, section 14 right."
|Fines and fees|
|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+ See more
exists by virtue of the establishment of a Court and not by largess of the legislature"
|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+ See more
each defendant's right to counsel.