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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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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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Maryland 83 Md. Op. Att'y Gen. 33 (1998) Maryland-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?
The same procedural protections apply when a defendant may be incarcerated. Otherwise, they do not apply.
In similar language, the Maryland Public Defender Act requires representation by that office “at all stages” of specified proceedings. When incarceration is sought in a civil contempt proceeding, a hearing
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before a master is a critical stage of such a proceeding. Accordingly, both the right to counsel and the obligation of the Public Defender to provide representation for indigents apply.If incarceration is not sought as a remedy in a contempt proceeding, the constitutional right to counsel is not implicated.6 Nor is the Public Defender obligated to provide representation.
Ability to pay
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Maryland 79 Md. Op. Att'y Gen. 354 (1994) Maryland-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? No. A case-by-case standard could be used for each defendant. However, uniform eligibility requirements must be used under the Administrative Procedure Act
In theory, the Office of the Public Defender might administer these eligibility provisions on an entirely individualized basis, through an ad hoc assessment of each applicant's financial ability. [However, i]t
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is our opinion that the eligibility criteria established by the Public Defenders Office must be adopted under the rulemaking procedures of the Administrative Procedure Act in order to be legally effective.
Fines and fees
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Maryland See Md. Code Ann., State Fin. & Proc. § 3-302 Maryland-Attorney General opinion Which fines and/or fees may be collected by a private vendor? N/A. Maryland has a state central collection agency which collects fees. Revenue flow
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Maryland 86 Md. Op. Att'y Gen. 183 (2001) Maryland-Attorney General opinion Who has the burden of proof in an ability to pay determination? What is the standard of proof required? No burden or standard has been established. Instead, the Court simply inquires into the reason for inability to pay the fine.
"Thus, the Constitution places both procedural and substantive limitations on a court's power to incarcerate a criminal defendant in lieu of payment of a fine. First, the court must inquire
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into the reason why the defendant has failed to pay the fine. If the failure to pay is attributable to indigency the court must also consider alternate methods of punishment. If the court ultimately decides that an additional period of incarceration is necessary to serve the interests of deterrence and punishment, the aggregate period of incarceration cannot exceed the maximum sentence for the underlying offense."
Ability to pay
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Maryland Simms v. State, 501 A.2d 1338, 1342 (1986) Maryland-Attorney General opinion Should ability to pay be considered when imposing fines or fees or only when collecting fines or fees? Case law says at the time of collection. "A hearing to determine ability to pay is appropriate not at the time of the imposition of the sentence but at the time of its enforcement" Ability to pay
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Maryland Md. Const. art. IV, § 18; See, e.g., MD R ADR Rule 17-208 Maryland-Attorney General opinion What authority do county or municipal courts have to set fines or fees? They have authority as granted to them by the Court of Appeals
"Subject to the approval of the Chief Judge of the Court of Appeals, the county administrative judge of each circuit court shall develop and adopt maximum hourly rate fee schedules
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for court-designated individuals conducting each type of fee-for-service ADR"
Fines and fees
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Maryland
Md. Const. art. IV, § 18 (granting the Court of Appeals the authority to enacts rules with the force of law); see, e.g., MD R ADR Rule 17-208 (the Court
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of Appeals authorizes its Chief Judge to approve fee schedules)
Maryland-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? Maryland's highest court can impose binding state-wide rules, including fines and fees.
"The Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other
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courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law. The power of courts other than the Court of Appeals to make rules of practice and procedure, or administrative rules, shall be subject to the rules and regulations adopted by the Court of Appeals or otherwise by law." "Subject to the approval of the Chief Judge of the Court of Appeals, the county administrative judge of each circuit court shall develop and adopt maximum hourly rate fee schedules for court-designated individuals conducting each type of fee-for-service ADR"
Fines and fees
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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).