Fargo Choosing to Double Traffic Fines Just Opened a Legal Can of Worms

UPDATE: Since writing this post I’ve learned that other communities, such as Grand Forks, have also taken advantage of the Legislature’s green light to raise traffic fines. I had missed those local changes, though obviously, those changes are as unconstitutional as Fargo’s per the arguments below.

Over the weekend, the Fargo Forum’s editorial board applauded the Fargo City Commission’s decision to double fines for a slate of traffic violations.

This change in policy was enabled by the Legislature through SB2304 (introduced by Senator Erin Oban, a Democrat from Bismarck), which ended a long-standing legal prohibition on local fines exceeding state fines. Local governments now have the authority to charge up to 100 percent more than the state’s penalty.

If this were merely a question of public safety, I would be on board with Fargo’s decision. Our state’s traffic fines are so low they’re no longer serving as the deterrent to unsafe driving they’re intended to be. If we’re going to have traffic laws on the books, they should be effective. Our fines are so low the laws aren’t as effective as they should be.

“Fargo speeders have been getting a bargain for years,” the Forum writes, and they’re right. The bargain should end. But what SB2304 allows is hugely problematic.

For one thing, there is an equal protection issue. Imagine a driver is stopped by a Fargo Police Officer for a traffic violation along Broadway. That same driver, guilty of the same infraction in the same place, would face a fine that is half as much if they were stopped by a Highway Patrol officer.

Should the consequences for a crime, even one as relatively minor as a traffic violation, hinge on the uniform the officer who caught you is wearing?

Not only is that unfair, but it’s also unconstitutional. We are all guaranteed the right to equal treatment under the law. Different consequences based on different enforcement officers is not equitable treatment.

Fargo-based defense attorney Mark Friese wrote about this problem earlier this year. He and his law firm had sued Fargo previously over traffic fines exceeding state levels, and they won, in part because of this very issue:

In 2007, several of my law partners and I sued the City of Fargo for imposing fines in excess of state law limits. In the years preceding the lawsuit, Fargo refused to respond to my written requests, asking that they desist from imposing fees in excess of state law limits. We sued. After years of litigation and hundreds of thousands of dollars in refunded fines, costs, and fees, the matter was resolved.

Central to our lawsuit was the constitutional principle of equal protection, defined as “a direction that all persons similarly situated should be treated alike.” The North Dakota Supreme Court has said “[w]hen two statutes prohibit the same conduct but result in different penalties a person suffering the more serious penalty has been denied equal protection of the laws.”

The Legislature has enabled a situation where local governments have a green light to violate our equal protection rights. Unfortunately, the end result is going to be litigation, in which cities like Fargo will almost certainly spend hundreds of thousands of dollars to fight what will ultimately be losing efforts.

There’s also another problem.

Traffic fines collected by state-level law enforcement go into a schools trust fund per the state constitution. This was set up to avoid any incentives for policing for profit.

Local traffic fines, however, go straight to local governments. Meaning local governing entities have a considerable profit motive when it comes to raising their fines. That needs to end.

The Legislature needs to fix these problems by taking the following steps:

1. Remove the ability of local governments to exceed state levels for fines. We should all be treated equally under the law.
2. Raise statewide traffic fines. They’re too low.
3. Fines collected by local governments need to go into the same trust fund as state-collected penalties do.