Montana: bill calls for creation of “Supreme Court Candidate Public Forum Program” to help inform voters

A plan to expand public information about Montana Supreme Court races has been filed in that state’s House.

First, some background.

Montana uses a unique election system for their Supreme Court.

  • For initial terms, justices run for a particular seat (e.g. Associate Justice #2, Chief Justice) in a non-partisan race.
  • For additional terms, if a justice runs in a contest race, it is again non-partisan. If the justice runs unopposed, the justice must still go before voters, but in a yes/no retention election. So, for example, in 2016 Chief Justice Mike McGrath ran unopposed, so had to go up for a retention vote (he won with an 82% yes vote).

Under HB 636 as filed the Montana Secretary of State would administer the Supreme Court Candidate Public Forum Program and invite all candidates to participate. The program is designed to provide increased public access to information about candidates for justice and chief justice of the Montana supreme court.

The Program would pay for candidates to travel to forums across the state and pay for the space needed to host, publicize, and broadcast the events. The Secretary of State would “arrange forums in a manner that emphasizes and respects the nonpartisan nature of the supreme court while providing electors important information about candidates.”

Funds for the Program would come from 2 sources

  • An increase in filing fees in appellate and civil cases
  • Voluntary income tax refund contributions up to $5 (individual) or $10 (joint) from state income tax forms. Those who owe taxes could contribute $1.

HB 636 has been assigned to the House Judiciary Committee.

Special Edition: Colorado fee/fine/cost legislation in the 2017 session

HB 1162 Repeals the current penalties (cancellation of driver’s license, inability to receive new license, inability to renew license) for failing to appear at a hearing or failing to pay the fine for certain traffic infractions. Provides the courts with the option of withholding a driver’s state income tax refund in order to satisfy an outstanding judgment. In House Judiciary Committee.

Special Edition: California fee/fine/cost legislation in the 2017 session

AB 412 AS AMENDED BY AUTHOR

Modifies existing law that authorizes the court, in addition to any other penalty in an infraction, misdemeanor, or felony case, to impose a civil assessment of up to $300 against any defendant who fails, after notice and without good cause, to appear in court for any proceeding authorized by law, or who fails to pay all or any portion of a fine ordered by the court or to pay an installment of bail.

  • Provides that the assessment shall not become effective until at least 60 days after the court mails a warning notice to the defendant.
  • Requires court to vacate a civil assessment if the underlying charge is dismissed, refund any payments made by a defendant towards that assessment, and terminate any collection action.
  • Requires the court to vacate a civil assessment imposed pursuant to those provisions, if the defendant certifies that he or she had good cause to not appear or not pay a fine, or is unable to pay the assessment.
  • Requires court to allow a defendant to file a motion to vacate a civil assessment at any time.
  • Requires court to include a form to petition the court to vacate a civil assessment with any notice of or request to pay the civil assessment.

Approved as amended by Assembly Public Safety Committee 3/21/17.

SB 185 AS AMENDED BY AUTHOR

  • Requires require the court, in any case involving an infraction, filed with the court, to determine whether the defendant is indigent for purposes of determining what portion of the statutory amount of any associated fine, fee, assessment, or other financial penalties the person can afford to pay.
  • Provides that the defendant can demonstrate that he or she is indigent by providing specified information, including attesting to his or her indigent status under penalty of perjury.
  • Requires the court to reduce the base fine and associated fees by 80% if the court establishes that the defendant is indigent, and to provide alternatives to immediate payment of the sentence, including a payment plan option.
  • Requires the court to determine the amount a defendant can afford to pay per month by using a payment calculator developed by the Judicial Council.
  • Requires for persons not found to be indigent that the monthly payment not exceed 5% of the defendant’s family monthly income, as provided.
  • Requires for defendants found to be indigent monthly payments be $0 until the defendant’s financial circumstances change, and would require the remaining amount owed to be discharged after 48 months in the interest of justice.
  • Deletes initiating suspensions or holds for driver’s licenses from the list of activities a court or court’s comprehensive collection program may engage in. Requires the program to provide a payment plan option based on the debtor’s ability to pay and requires the program to notify the defendant of his or her right to an indigency determination for Vehicle Code infractions.
  • Provides court to issue a notice to the defendant that he or she must appear in court within 60 days, as specified, if the person has failed to appear, and authorizes the court to notify the Department of Motor Vehicles only when the defendant does not appear within those 60 days.
  • Repeals provisions authorizing the court to notify the Department of Motor Vehicles of a failure to pay a fine or bail.
  • Repeals certain provisions prohibiting the Department of Motor Vehicles from issuing or renewing a person’s driver’s license upon receipt of a notice of a defendant’s failure to pay, with respect to designated violations.

In Senate Transportation and Housing Committee.

Special Edition: Arizona fee/fine/cost legislation in the 2017 session

HB 2245 ORIGINAL: Requires Supreme Court report annually to the governor and the legislature the amount of fees that were collected by every court in the state, including the revenue and collection rates for each court. AMENDED: Strike all language. Strike-all amendment approved by House Judiciary and Public Safety Committee 2/15/17.

SB 1158 Implements a portion of the recommendations of the Arizona Chief Justice’s Task Force on Fair Justice for All.

AS AMENDED AND APPROVED BY SENATE 2/22/17

Fine Mitigation and Restitution

  • Modifies the court’s ability to waive civil penalties, forfeitures and fines, instead allowing the court to mitigate them. Maintains requirements related to hardship and division of the amount assessed.
  • Stipulates that the court cannot mitigate the Clean Elections surcharge.
  • Allows the court to mitigate mandatory fines and civil penalties. They are not currently allowed to be waived.
  • Permits the court to waive or mitigate mandatory community restitution due to a defendant’s medical condition. Specifies this ability does not apply to community restitution in lieu of a monetary obligation.
  • Allows the court to mitigate a fine imposed on conviction for a drug offense.
  • Eliminates the requirement that a probationer be current on the payment of monetary obligations to receive earned time credit. Maintains the requirement that the probationer be current on court-ordered restitution.
  • Expands the ability of the court to order a defendant to perform community restitution in lieu of paying all or part of a monetary obligation if the court finds the defendant is unable to pay.
  • Specifies that community restitution in lieu of a monetary obligation does not apply to the Clean Elections surcharge.
  • Reduces the interest that accrues on a criminal restitution order in favor of the state from 10 percent to 4 percent per year.
  • Allows the court to waive all or part of the interest on a criminal restitution order in favor of any person entitled to restitution on agreement of the prosecutor and victim.

Removal of Debt

  • Allows the superior court, a justice of the peace or a municipal court to order all or part of a debt due to the court be removed from the accounting system if
    a) 20 years or more have elapsed from the date of the initial fine or other monetary obligation in a criminal or civil traffic case that resulted in the debt;
    b) the court notifies the prosecutor, defendant and victim, if the defendant’s and victim’s addresses are known, that the court may remove all or part of the debt and that any party or the victim may file an objection to the removal within 30 days after notification;
    c) the court makes reasonable attempts to collect the debt, including billing the debtor on at least four different dates;
    d) the court submits the debt for collection to a licensed collection agency and does not order the removal for at least a year while the agency attempts collection;
    e) the court notifies the Department of Revenue of the debt pursuant to statute; and
    f) the court notifies the county or city treasurer, as appropriate.
  • Requires the court to consider any objection in determining whether to remove the debt.

Sentences of Community Restitution or Education or Treatment

  • Permits the court to impose a term of community restitution or education or treatment if a conviction is for a misdemeanor and the person is not granted a period of probation or probation is revoked, in addition to any sentence authorized by law.
  • Requires the court to determine and fix the sentence for a definite period of time if the court imposes a sentence to perform community restitution for a misdemeanor conviction.
  • Requires the court or probation officer to determine the program of education or treatment.
  • Prohibits the term of education or treatment the court imposes from exceeding the term of probation for such convictions.

Miscellaneous

  • Relieves court clerks of their duty to automatically report unpaid fines, fees, incarceration costs or restitution and instead requires clerks to make the person’s payment history available for free only on request by:

a) the prosecutor;
b) the victim;
c) the victim’s attorney;
d) the probation department; and
e) the court.

  • Eliminates the ability of the court to revoke a defendant’s probation, parole or community supervision and to sentence the defendant to prison if the court finds the defendant:

a) has willfully failed to pay a fine, fee, assessment, restitution or incarceration costs; or
b) has intentionally refused to make a good faith effort to obtain the monies required for payment.

  • Allows time spent in actual custody to be credited in each sentence against the term of imprisonment if the defendant is released from custody pending trial on at least one charge, but remains in actual custody because of not being released pending trial on any other charge.
  • Modifies how a person on intensive probation is paid. Instead of the chief adult probation officer administering the defendant’s account and making payments on behalf of the defendant, the defendant’s probation officer will monitor the defendant’s wages to ensure the collection of restitution, fees, fines and other payments.
  • Adds assessments to requirements related to consequences and garnishment for nonpayment

Special Edition: Arkansas fee/fine/cost legislation in the 2017 session

HB 1909 Provides a warrant shall not be issued for failure to pay court-ordered fees, fines, or costs where the person is incarcerated or hospitalized. In House Judiciary Committee

HB 2112 Provides a warrant shall not be issued for failure to pay court-ordered fees, fines, or costs where the person is incarcerated or hospitalized. In House Judiciary Committee

Special Edition: Alabama fee/fine/cost legislation in the 2017 session

HB 380 Authorizes any municipal court judge to remit fines, court costs, fees, payments, and other charges in cases where the court determines that a defendant cannot afford to pay the full amount that would otherwise be required by law. In House Judiciary Committee.

SB 36Fairness in Enforcement of Fines and Fees Act.” In Senate Judiciary Committee.

Prohibits a person from being incarcerated for nonpayment of fines or fees without a prior indigency determination and would provide the person with certain notifications.

Requires a person charged with a traffic violation or minor misdemeanor be provided with adequate information, including the charges against him or her and the options he or she has for resolving the charges.

Requires a court to proportion all fines, fees, and costs imposed by the court when a sufficient showing of indigency has been made and would require the court to consider alternative sentencing, such as payment plan options or community service in lieu of paying fines and fees.

Requires notice regarding the waiver of posting certain bonds based on the inability to pay and would require meaningful notice and adequate representation, including counsel, in cases where the enforcement of fines and fees could result in imprisonment.

Prohibits the use of arrest warrants as a means of coercing payment of a court debt and prohibit arrest warrants from being issued in response to the inability of a person to pay a fine or fee.

Provides that if a defendant fails to make a court appearance the court would have to conduct a hearing on why a warrant should not be issued and include an assessment of the ability of the person to pay any pending fine or fee.

Provides that the failure of a person to appear or pay a fine in a case involving a traffic violation or minor misdemeanor may not be grounds for suspension of the driver’s license of the person and would provide for immediate reinstatement of the driver’s license of any person whose driver’s license has been suspended for failing to appear or pay a fine in such cases.

Requires a municipality to ensure the sufficient independence of its municipal judges to avoid impropriety and existing or potential conflicts of interest.

Requires courts and municipal or other governmental entities to provide appropriate training on safeguarding against unconstitutional practices by its staff and private contractors.

SB 37 Authorizes courts to order deferred or installment payments or community service for traffic violations and misdemeanors. Prohibits court from suspending driver’s license for failure to appear or pay fines or court costs. In Senate Judiciary Committee.

SB 38 Authorizes courts to order deferred or installment payments or community service for traffic violations and misdemeanors. Prohibits court from suspending driver’s license for failure to appear or pay fines or court costs if violator making payments. In Senate Judiciary Committee.

SB 39 Requires courts consider alternatives to incarceration for defendants unable to pay fines or court fees, to provide notice when enforcing fines and court fees, and to safeguard against unconstitutional practices by court staff and private contractors. Prohibits courts from incarcerating a person for nonpayment of fines or court fees without first conducting an indigency determination and establishing that the failure to pay was willful; from conditioning access to a judicial hearing on the prepayment of fines or court fees; from using arrest warrants or driver’s license suspension as a means of coercing the payment of court debt when individuals have not been afforded constitutionally adequate procedural protections; and from employing bail or bond practices that cause defendants to remain incarcerated solely because they cannot afford to pay for their release. In Senate Judiciary Committee.

SB 42  Prohibits suspension of driver’s license for for failure to pay fines, fees, or court costs. In Senate Judiciary Committee.

SB 162 Prohibits suspension or revocation of driver’s license for for failure or inability to pay fines, fees, or court costs. In Senate Judiciary Committee.

SB 281 Authorizes any municipal court judge to remit fines, court costs, fees, payments, and other charges in cases where the court determines that a defendant cannot afford to pay the full amount that would otherwise be required by law. In Senate Judiciary Committee.

Special Edition: A look a court fee/fine/cost legislation in the 2017 session

One of the topics that has gained national attention in the last several years has been the issue of court fees, fines, and costs associated with low level criminal offenses as well as civil violations. The Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) formed a National Task Force on Fines, Fees and Bail Practices to address the ongoing impact that these legal financial obligations (LFOs) have on economically disadvantaged communities and to draft model statutes and court rules for setting, collecting, and waiving court-imposed payments.

Over the course of the next several days, I’m going to be looking at how state legislatures are attempting to address the issue. Over 100 pieces of legislation have been filed in over 20 states to examine this topic, and I’ll be looking at them state-by-state.

Overall, there are several themes coming out of statehouses this year

Judges must make determinations of inability vs. unwillingness to pay: Several bills address the unwilling/unable to pay dynamic and require judges to make the determination at time the fee/fine/cost is assessed or to hold a hearing before a determination is made that the failure to pay is willful.

Making automatic presumptions for inability to pay: Several states are considering creating standards that certain individuals, for example those on any sort of means-tested welfare, are automatically assumed unable to pay (vs. unwilling to pay).

Allow judges to waive or reduce fees/fines/costs: Reducing the number, or amount, of mandatory fees/fines/costs to a level that the individual is capable of paying.

Ending use of driver’s license suspensions for failure to pay: the subject of litigation in several states, these bills would end or curtail the automatic suspension of a license for non-payment.

The need for more study: several states have introduced legislation to ask the judiciary or to create legislative study commissions to look at this issue and either report back recommendations (in general) or to review the myriad of existing fees/fines/costs.