Lost in the shuffle in this most tumultuous political year so far in the 21st Century is a package of bills in the Michigan Legislature that appear to be on a fast-track to quick passage, with bipartisan support. They involve recommendations from the Governor’s Joint Task Force on Jail and Pretrial Detention, including elimination of mandatory jail terms and reclassification of misdemeanor violations to civil infractions.
At the center of debate is whether a person’s driver license should be suspended for reasons unrelated to driving behavior, with adverse impact on the person’s ability to drive to work, school, or medical appointments — and jail time if the citizen is caught driving while the license has been suspended.
The proposed solution (HB 5846) is elimination of a license suspension for multiple violations and when a person fails to respond to a traffic citation or pay fines and costs. HB 5846 would also eliminate a license suspension for other civil infractions, including first violation on minor-in-possession (MIP) of liquor.
The full package of bills (HB 5846-5853) is expected to pass easily, but should it?
Now comes former legislative aide Bruce Timmons, retired after a record-setting tenure in the trenches of the state House of Representatives, who argues that there may be ramifications of the legislation of which current lawmakers not familiar with the history of these issues may be unaware. Timmons says he is not opposing the bills, but he opines that “this package may come with unintended consequences which have not, to my knowledge, been addressed or even discussed publicly. I have sent inquiries to legislative staff and the State Court Administrative Office (SCAO) with no response –- not that they owe me one. Having retired in 2012 after a 45-year career in various Michigan legislative legal and policy positions, these are the kind of questions I habitually sought answers to and I profess dismay that the “rest of the story” seems to be missing in action.”
For example, says Timmons, consider the following:
* Will judges have any other cost-effective alternatives if motorists fail to appear to pay fines?
*Will elimination of the suspension of a driver’s license result in more motorists not bothering to respond to traffic citations or paying fines and costs?
* Will the unintended result of the new laws be reduced effectiveness of traffic enforcement if there is no consequence of ignoring a traffic citation?
*If there is a reduction in compliance, will one effect be a loss of revenue that now goes to libraries, counties and the State of Michigan — including funding for trial courts, secondary road patrol, law enforcement training, highway safety programs, drug courts and other services?
* Will counties no longer be reimbursed for the expense of juror compensation, or will juror compensation be reduced back to levels of 50 years ago?
* Is the perception that traffic tickets cost too much a matter of fines and costs that stay “local,” or a $40 assessment that comes to Michigan government for state-determined services?
*Is the real culprit underlying license suspension the propensity of the Legislature, over time, to expect the court system to be our surrogate tax-collector?
Here are the questions Timmons says legislators should address:
A, Traffic violations/civil infractions primarily but also MIPs, and SCIs:
Under current law, which HB 5846 would change, a motorist who fails to appear in response to a traffic citation or pay fines and costs can have his or her driver’s license suspended until that matter is resolved.
Background: When the traffic civil infraction system was enacted in 1978 (Public Act/PA 510, eff 8/1/1979) to decriminalize minor traffic violations, one of the obvious changes was to eliminate the possibility of jail for nonpayment of fines and costs. Instead, the preferred ‘backup enforcement’ method (or incentive to comply) for failure to appear or to pay fines and costs was suspension of the driver’s license – over other options like issuance of a bench warrant for contempt, attachment, execution, or making such failure a misdemeanor that could lead to a criminal charge and possible jail. All those options were allowed, but not as the expected recourse. [Note also that PA 510 eliminated jury trials and appointed counsel for minor traffic, cum civil infractions, with minor consequences of a fine and cost, each less than $100.] Similar procedures apply to State Civil Infractions (SCIs) that are decriminalized former misdemeanors processed as state law violations, which also began with minimal civil fines.
In the past, with traffic citations and with the earlier “civil fine” for minor-in-possession (MIP) violations (pre-mid 1990’s), district judges shied away from bench warrants. For MIP, the standard complaint of district judges (that led to reinstitution of misdemeanor penalties in the mid-1990s) was that the civil MIP sanction was unenforceable. They complained that juveniles (under age 21) thumbed their noses at the citations and did not pay the fines.
Note this Distinction: For traffic civil infractions and MIPs, failure to appear or pay, after a 28-day court notice to the motorist and 14 days to respond and pay, will cause an automatic license suspension. For SCIs and unpaid parking, the consequence is the inability to get or renew a license, which for most defendants will be months before that sanction applies, with notice of that up front.
Q Legislators should ask: What is the current scofflaw rate for traffic civil infractions? Or for MIPs?
Q Legislators should ask: To what extent have district judges used bench warrants where motorists or MIPs (as a SCI violation) fail to appear or pay fines, costs, and assessments?
Q Legislators should ask: If license suspension is eliminated under HB 5846 and failure to appear or pay is no longer a misdemeanor once MC 257.321(1) is stricken (repealed) in HB 5846, how will district judges instill compliance by motorists or MIPs who are blowing off the tickets?
Q Legislators should ask: How will courts collect the default judgments that can be entered under MCL 257.748? Attachment (Revised Judicature Act (RJA), Ch 40) or execution (RJA, Ch 60), both referred to in MCL 257.907(10)? Through collection agencies? Use of bench warrants? Are any of those options ‘cost effective’ enough to use?
Q Legislators should ask: Do SCAO or local district judges anticipate a greater scofflaw rate if HB 5846 eliminates the leverage for compliance provided by a driver license suspension, or no change?
Q Legislators should ask: Does SCAO have an estimate as to what a reduction in compliance could have on revenue for libraries and courts, as well as programs funded by the Justice System Assessment of $40 imposed for traffic civil infractions?
Q Legislators should ask: Will this package (including HB 5847 (MIPs) and HB 6235 (SCIs) in effect ‘legalize’ what are now state civil infractions (SCIs) or MIPs because the only realistic leverage for compliance will be gone? (A bench warrant for contempt and misdemeanor penalties for no-shows for SCIs would still exist, but not for MIPs, but will either be used?)
B. Juror Compensation Reimbursement & the Clearance Fees that now must be paid to Secretary of State (SOS):
Under current law, MCL 257.321a(11), once the defendant resolves the court matter for traffic civil infractions, SCIs, MIPs, and unpaid parking, he or she must pay a $45 “clearance fee” to the Secretary of State –- $15 to SOS (for state GF/GP), $15 to the court funding unit, and $15 to the Juror Compensation Reimbursement Fund.
Juror Compensation Reimbursement Fund: Under HB 5846, elimination of the driver’s license suspension for traffic civil infractions –- as well as MIPs, state civil infractions, and unpaid parking –- also eliminates the clearance fee of $45 associated with removing the SOS suspension and thus the corresponding revenue that now is the primary source of money for the Juror Compensation Reimbursement Fund (JCRF). This fund reimburses counties primarily (but also cities and townships that fund the local District Court) to cover the expense incurred by the juror per diem increase in 2003. Note that the JCRF was created in compliance with the Headlee Amendment to cover the increase in a mandate cost. .I have asked SCAO how it will respond to the loss of that revenue, with no response.
Q Legislators should ask: Will SCAO pro-rate reimbursements to court funding units?
Q Legislators should ask: Will SCAO use of other Judicial appropriations to make up any shortfall, or seek direct GF/GP replacement money?
Q Legislators should ask: Will SCAO at least forego use of the JCRF to pay for an SCAO FTE and a contract for a jury management software vendor? (See MCL 600.151e(2) and (3), per 2017 PA 52, HB 4210.) [The JCRF was not established to pay for either! Note that on 4 occasions a surplus in the JCRF was used to balance the Supreme Court budget instead of increasing juror compensation or mileage. See MCL 600.151d for this history.]
Q Legislators should ask: If the JCRF has insufficient revenue to fully reimburse local governments for juror compensation, will there be pressure (for instance, from Michigan Association of Counties) to revert juror per diems back to pre-2003 levels (meaning $15/day or $1.875/hr.)
C. License Non-Renewal for Unpaid Parking:
Background: For decades under MCL257.321a, a block or “flag” against renewal of a driver’s license kicked in only if the court chose to notify the Secretary of State that a person had accumulated at least 6 unpaid parking tickets. The premise expressed by advocates at the time was that anyone can accumulate a couple of parking tickets and the license leverage should be used only against those who clearly did not respond to tickets for lapsed meters or illegal parking. The number of cities utilizing this mechanism for unpaid parking may be unknown, but Grand Rapids and Detroit have.
In 2012 (PA 12, SB 130) the Legislature reduced that number from six to three unpaid parking violations (only two for disabled parking violations), with a sunset of 1/1/2018. In 2017 (PA 236, SB 478), Grand Rapids and Detroit convinced the Legislature to scrap the sunset.
The complaint about using a driver’s license suspension as in current law is unjustified and a worthy target of reform, It is an overreach. Note also that parking tickets are against the vehicle owner, who is not necessarily the individual who violated parking rules.
Q Legislators should ask: How many “holds” does SOS currently have for unpaid parking?
Q Legislators should ask: How will loss of this leverage affect Grand Rapids and Detroit parking?
D. Use of the Court System to Raise Revenue:
The last witness at the House Judiciary Committee meeting on Sept 16, Geoffrey Leonard, representing the Detroit Justice Center, alone raised the issue about affordable fines and costs that he thought would improve compliance.
- Fines and costs for traffic civil infractions: Still minimal, at least per SCAO annual suggested fines and costs for civil infractions. Most are within $35-$53 for both, well under the statutory maximum of $100 for civil fines and for costs, as set by 1978 PA 510 some forty years ago. See MCL 257.907(2), first sentence, and MCL 257.907(4).
Background: When minor traffic violations were decriminalized in 1979, a maximum of $100 was set for civil fines. That is still the ceiling that applies to most violations – except where the Legislature has dictated a higher amount, such as for commercial vehicle violations (up to $250 civil fine per MCL 257.907(3) or, more recently for texting while driving or using a cell phone while driving. See MCL 257.907(2).
SCAO has been instructed per MCL 257.907(8) to “annually publish and distribute to each district and court a recommended range of civil fines and costs for first-time civil infractions. This recommendation is not binding upon the courts having jurisdiction over civil infractions but is intended to act as a normative guide for judges and district court magistrates and a basis for public evaluation of disparities in the imposition of civil fines and costs throughout the state.” That recommendation is public but not easy to find. Most recent appears to be 2019, and this is a link to it: https://courts.michigan.gov/Administration/SCAO/Resources/Documents/other/fc_ci.pdf
Note that the SCAO recommendation for the civil fine for the vast majority of violations is $35 – well under the $100 ceiling set by MCL 257.907(2). Costs range from $35 to $53. The typical recommended total is $110 to $128, with the largest portion many times being the $40 justice system assessment (discussed below) – not the fine or the costs. When the civil fine is higher, it reflects a statutory amount set by the Legislature, not controlled by SCAO or judges.
Q Legislators should ask: What is the civil fines and costs schedule for your local district court or representative courts for routine traffic violations? Do they follow the SCAO schedule, or apply higher fines and/or costs? [Reason for the schedule is to facilitate inquiries by those who get traffic citations and want to know what they have to pay – most often by mail, on-line, or at court clerk’s counter.)
- Justice System Assessment of $40 – that may even be the highest component of what motorists are directed to pay for a traffic citation.
Background: What began as a $5 surcharge on traffic tickets to fund the secondary road patrol (service provided by the Michigan State Police/MSP) in the late 1980’s morphed into a series of $5 surcharges for highway safety, justice training, and jail reimbursement and, per MCL 257.907(13) and 2003 PA 73, that little $5 surcharge morphed further into the state-mandated “justice system assessment” of $40 that is a combination of multiple surcharges the Legislature has added to fund largely criminal-justice programs that the state (Legislature) determines worthy of funding through the Justice System Fund (JSF) per the formula in MCL 600.181 – just so long as it doesn’t come out of GF/GP as it ought to – secondary road patrol, highway safety, jail reimbursement, justice training, drug treatment courts, state forensic labs, sexual assault victims’ medical forensic intervention and treatment, and children’s advocacy center, along with SCAO, state court fund, court equity fund, and legislative retirement. Most of those destinations rely heavily or entirely on this $40 assessment.
Note: There has been constitutional concerns about adding the same type “surcharges” to criminal convictions – because they look a lot like a penal fine that, by Constitution, must go toward libraries, Civil infractions have no such impediment, so that sanction (for decriminalized conduct) becomes a convenient vehicle to raise money – for criminal justice.
Q Legislators should ask: How much money is now raised by the justice system assessment?
Q Legislators should ask: If compliance for appearance and payment of traffic tickets is reduced for lack to ‘incentive’ to show up and/or pay, what is the impact on revenue the $40 justice system assessment now produces? Or does SCAO believe HB 5846 and related bills will not adversely affect compliance and revenue for the JSF?
Q Legislators should ask: If that assessment were eliminated, or the revenue now produced by it significantly reduced as a consequence of HB 5846, how would that lost revenue be accommodated by MSP, prosecutors, drug treatment courts, etc. -– and even within the Supreme Court’s own budget (like indigent civil legal aid and the court equity fund that goes to counties)?
Q Legislators should ask: So, would the Legislature consider elimination of the $40 assessment to make traffic tickets more affordable and (possibly) make compliance more likely – as hinted by the final witness at the House Judiciary Committee meeting Sept 16? Or are too many programs and agencies dependent on this money trough and present formidable resistance – unless the Legislature were to substitute commensurate funding from other sources, including GF/GP? (Such alternate funding, in truth, does not seem promising.)
Q Legislators should ask: When will the State (Legislature and Governor) stop relying on courts to be the generators of revenue to fund trial courts and criminal justice services in lieu of tax revenue?
It seems this question is the ONLY one that has gotten any significant attention up to this point from the news media.
Q LEGISLATORS SHOULD ASK: If we pass this package right now, should it be given Immediate Effect?
ANSWER: No. There is no way stakeholders like Secretary of State, MSP, local district courts, and cities (updating ordinances), can possibly be ready that quickly, nor a revised traffic citation form be adopted and new citations be made available to all police agencies on the day the Governor signs the bills. HB 5849 is now inconsistent with HB 5846. If the House doesn’t realize this, hopefully the Senate will and get the House to agree.