Mark Friese: North Dakota Legislature Should Put a Stop to Policing for Profit

Article IX, section 2 of the North Dakota Constitution provides “all fines and fees for violation of state laws . . . must be faithfully used and applied each year for the benefit of the common schools of the state and no part of the fund must ever be diverted even temporarily, from this purpose or used for any purpose other than the maintenance of common schools as provided by law.” A statute, N.D.C.C. § 29-27-02.1, codifies this constitutional principle: “all statutory fees, fines, forfeitures, and pecuniary penalties prescribed for a violation of state laws, when collected, must be paid into the treasury of the proper county to be added to the state school fund.” This legal background makes sense: our police, prosecutors, and courts should not obtain salaries and operating budgets from fees generated from convictions.

But, what if an offense violates both state law and a comparable city ordinance? According to N.D.C.C. § 40-11-13, fines, penalties, and forfeitures for a violation of a municipal ordinance are “paid into the city’s treasury.” Because the Constitution is the paramount law, and because North Dakota law provides that offenses defined by state law cannot be superseded by municipal ordinance, the issue of municipalities diverting funds away from the common school fund is ripe for legal challenge. And, the constitutionality of N.D.C.C. § 40-11-13 is highly questionable. The Legislature should address the problem rather than await litigation.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]Because the Constitution is the paramount law, and because North Dakota law provides that offenses defined by state law cannot be superseded by municipal ordinance, the issue of municipalities diverting funds away from the common school fund is ripe for legal challenge.[/mks_pullquote]

Under current law, sheriff’s deputies, city police officers, and state patrol troopers have concurrent jurisdiction to enforce traffic offenses in cities. So if a driver fails to stop at a traffic light at 3rd Street and Main Avenue in Bismarck, she can be cited by a Bismarck Police Officer, a Burleigh County Sheriff’s Deputy, or a State Patrol Officer. Cited by the latter two officers, the driver would appear in District Court. For the first, she would be cited into municipal court—where the officers’ salary is paid from the fund established by proceeds of a conviction. The current scheme places municipal police officers in a position where they are subject to criticism, while their county and state law enforcement colleagues are not.

Police are not alone—the current scheme raises appearances of impropriety by municipal judges who are paid from the funds generated by convictions. By way of comparison, in Connally v. Georgia, 429 U.S. 245 (1977), the United States Supreme Court held that a magistrate who receives a fee to issue a warrant, but receives no fee when denying a warrant, is neither neutral nor detached. Unlike all other North Dakota courts, municipal court judges are paid from the fund established by collected fines. The appearance of impropriety grows when the fines become more significant, like class B misdemeanor offenses, which carry a maximum fine of $1,500.

North Dakota law permits transfer of some municipal offenses to district court, but if the defendant chooses to plead guilty in district court, over the objection of the defendant, the municipal prosecutor can demand that the case be remanded to municipal court. This causes additional expense and inconvenience for everyone, but generates money for the city—the fines do not have to be split with the District Court. Formerly, the transfer statute allowed the defendant to plead guilty in District Court, subjecting himself to the sentencing authority of a district judge. But, municipalities seeking expanded ability to police for a profit—notwithstanding a constitutional provision to the contrary—convinced the Legislature to amend the statute, in effect allowing municipal prosecutors to direct fines into the city treasury—the same pot from which the prosecutor is paid.

[mks_pullquote align=”left” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]It is time to join the growing number of States that have abolished municipal courts. Our state unified court system is well-equipped to handle municipal ordinance violations.[/mks_pullquote]

Many states have abolished municipal courts—Minnesota did so successfully in 1979. The trend continues in states serious about fair and efficient courts. Although North Dakota municipal judges must a licensed attorney in cities with a population of 5,000 or more, most municipal judges are not attorneys. According to the 2015 annual report of the North Dakota Court system, there were 73 North Dakota municipal judges. Ironically, the introduction to that report says: “Due process encompasses the principle that the state must respect all of the legal rights owed to a person and is a constitutional guarantee that all legal proceedings will be fair and that the application of laws will not be unreasonable, arbitrary, or capricious.” Why is a resident in West Fargo entitled to a law-trained municipal judge, while a resident in Casselton is not? Why do cities fund their courts by fines, while the state does not?

Examples of other concerns abound. A defendant recently submitted a written plea agreement to a municipal court, and the municipal judge’s response was that he would not accept the agreement unless the client paid $200 more in fines. Countless examples exist of municipal prosecutors being forced to “remand” cases to municipal courts—not out of fairness or procedural efficiency, but so the municipality can collect fees. City commissions follow the money too. Until recently, Fargo did not have ordinances regulating marijuana possession. Instead, those cases were prosecuted in district court. As the country is moving away from criminalization of marijuana, Fargo enacted a municipal ordinance prohibiting it—for no apparent reason other than the funds it would generate.

It is time to join the growing number of States that have abolished municipal courts. Our state unified court system is well-equipped to handle municipal ordinance violations. Unlike municipal courts consisting of single judges with no ability to shift and reassign workloads, the district courts have the resources, professional administrators, and capability to adapt to accommodate additional cases. Abolishing municipal courts will also protect our police, municipal prosecutors, and municipal authorities from well-founded criticism of policing for a profit. Abolishing municipal courts will avoid continuing disregard of the constitutional mandate that funds generated from violations of state law must be deposited in the common schools fund. Most importantly, abolishing municipal courts will ensure that every citizen is entitled to the same level of due process, and that “application of laws will not be unreasonable, arbitrary, or capricious.”

I urge the North Dakota Legislature to consider and ultimately adopt this necessary step. Legislators could expect a barrage of objections from municipal political leaders who will urge that “home rule” is more important than procedural fairness or compliance with the North Dakota Constitution. Should the Legislature decline this necessary step, at a minimum it must, as the Constitution requires, abolish the practice of depositing fines into the municipal treasuries.