To fee or not to fee… That is the ethical question

During economic hard times, the pressure can be immense for government officials, including judges, to find additional revenue sources to run government agencies. Judges often find themselves in the crossfire between addressing a city/county council’s concerns about budget shortfalls and maintaining the regular business of the court. Three alluring “solutions” sometimes proposed to “solve” this dilemma are to supplement court budgets by imposing new court fees, to create court deferral programs (so that the fees for the programs will go to the county, city, or town rather than the state), or to pass on costs for court services through increased fines. This article, however, is a cautionary tale, as all of these proposals can be fraught with ethical problems.

Imposing Unauthorized Fees

A judge only may impose fees which are authorized by law. I.C. § 5-7-2-1 (“It shall be unlawful for any officer in this state, under color of his office, to tax, or permit to be taxed in his office, any fee or sum of money that is not legally allowable under the statute or statutes of this state.”) Although there are a limited number of Supreme Court Rules that authorize imposition of fees (i.e. Administrative Rule 16 and Criminal Rule 2.3), most court fees must be detailed either in I.C. § 33-37 or I.C. § 36-2. See I.C. § 5-7-2-2. Further, court and local officials cannot bypass state statutes on certain items, such as moving traffic violations, by passing local ordinances so that monies collected go to the local jurisdiction rather than the state. See I.C. § 36-1-6-3(c) (“An ordinance defining a moving traffic violation may not be enforced under IC 33-36 and must be enforced in accordance with IC 34-28-5.”)

Nationally, judges have been disciplined for imposing unlawful fees against litigants or attorneys in order to support other court programs. See Arkansas Judicial Discipline and Disability Comm’n v. Proctor, 360 S.W.2d 61 (Ark. 2010)(judge disciplined for creating “civil probation,” which was not authorized by statute, and ordering that half of the probation user fees go to a court program the judge created); Inquiry Concerning Fowler, 696 S.E.2d 644 (Ga. 2010)(judge disciplined for allowing criminal defendants to “buy out” the community service portions of their criminal sentences and then placing the proceeds in a bank account controlled by the judge); , 432 N.W.2d 170 (Mich. 1988)(judge’s use of fines collected from attorneys for late filings, failures to appear, and tardy appearances to augment fund for assisting indigent drug and alcohol abusers who appeared before him warranted public censure).

Judges also have been disciplined for unlawfully assessing fees against criminal defendants who were found not guilty at trial. See Inquiry Concerning Hearn, 515 So.2d 1225 (Miss. 1987) (judge disciplined for assessing, contrary to statute, a constable fee to defendants found not guilty). Others have been disciplined for imposing fines that exceeded the maximum authorized by statute. See Matter of Banks, Public Censure (NY Comm’n on Jud. Cond., July 16, 2009); Matter of Pisaturo, Public Censure (NY Comm’n on Jud. Cond., November 18, 2005); Matter of Reid, Public Censure (NY Comm’n on Jud. Cond., May 17, 2002).

Unauthorized Deferral Programs

Judges also have found themselves in ethical trouble for creating (or using) court deferral programs that were not authorized by law. In Matter of Harkin, 958 N.E.2d 788 (Ind. 2011), a city court judge received a 60-day suspension for dismissing the traffic infraction cases of all litigants who attended a traffic school and paid applicable fees (the majority of such proceeds went to the city), although he had no judicial authority to refer litigants to the school and to dismiss the litigants’ cases. Only the prosecutor had authority to establish a deferral program for traffic infractions. Id. at 790. In a stipulated agreement for discipline, the judge agreed that he abused his judicial authority, committed conduct prejudicial to the administration of justice, and violated Rules 1.1, 1.2, 2.2, and 2.5 of the Code of Judicial Conduct. See also Inquiry Concerning DeFoor, 494 So.2d 1121 (Fla. 1986) (judge disciplined for establishing an improper procedure by which certain traffic violators could avoid a court appearance and adjudication of guilt by paying the clerk double the statutory fine).

Excessive Fines

Other judges have attempted to deal with funding problems by only accepting plea agreements to charges in which the fines would go to the city or town or by imposing higher fines. Both practices have met with disapproval from judicial conduct commissions. See Matter of Herrmann, Public Censure (NY Comm’n on Jud. Cond., December 15, 2009) (judge admonished for refusing to accept a plea unless it included additional charges which would generate revenue for Village); Matter of Tauscher, Public Censure (NY Comm’n on Jud. Cond., February 5, 2007) (judge admonished for suggesting he could exercise his authority imposing fines to raise revenue to pay for a salary increase).

Legal Error v. Legal Misconduct

Judicial conduct commissions which have filed disciplinary charges against judges for imposing unauthorized or excessive fees generally have done so under the provisions of the Code of Judicial Conduct which require that a judge respect and comply with the law (Rule 1.1), act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary (Rule 1.2), and uphold the law and perform all duties of judicial office fairly and impartially (Rule 2.2).

Because fundamentally the “fee” issue is an error of law committed by a judge, some have argued that such matters would be better dealt with in the appellate courts rather than with judicial conduct commissions. However, this argument has not gained traction for several reasons. First, the matters that have prompted disciplinary charges have involved systemic practices. Second, those practices often led to detrimental economic consequences for multiple defendants. Third, the practices were in violation of clearly established law, yet the judges chose to proceed anyway with their unlawful practices.

As the Indiana Supreme Court recognized in Crawford v. State, 770 N.E.2d 775 (Ind 2002), “A court’s indifference to clearly stated rules breeds disrespect for and discontent with our justice system. Government cannot demand respect of the laws by its citizens when its tribunals ignore those very same laws.”

While dealing with budget issues sadly may be part of the continuing judicial landscape, no budget shortfall is worth tarnishing the court’s reputation by acting outside the laws that judges have sworn to uphold. So in answer to the question posed in the title—go ahead and impose fees or fines, but only if there is legal authority to do so—it’s the only way ethically.