COLLECTING DELINQUENT FINES
Gary E. Jackson
Judge
Atlanta Municipal Court
June 23, 2011
SAVANNAH, GEORGIA
INTRODUCTION
Before we begin today’s discussion, let me note that no court exists for
revenue purposes: Courts exist to insure that the law is followed so that an orderly
society is maintained. Traffic Courts are particularly vulnerable to “revenue
pressure” but as the Supreme Court of Georgia stated, in considering parking meter
cases, a parking meter ordinance can be invalid if it is a “revenue measure and it…
appear[s] that the scheme of the ordinance is such that receipts will continuously
and by substantial amount exceed the cost of installation, maintenance, and
regulation.” Ashley v. Greensboro, 206 GA. 800, 804 (1950) (emphasis added).
Similarly radar or speed detection device cases are highly regulated to avoid a
“revenue abuse” situation. See O.C.G.A. §46-14-2(b) (fee systems prohibited) and
§40-14-11 (DDS Commissioner may investigate and suspend/revoke speed
detection device; presumption of impropriety if fines greater that 40% of law
enforcement agency’s budget). More succinctly, “the purpose of the Uniform
Rules of the Road (O.C.G.A. §40-6-1 et seq.) is to promulgate the safe and
expeditious movement of vehicular traffic on the highways.” Crook v. State, 156
GA. App. 756 (1982). See also 1975 OP. Atty Gen No. 75-117.
This is not to say that we judges exist in a vacuum. We may be a separate,
independent branch of government, but our budgets are created by our respective
City Councils. With today’s economy, we cannot blindly proceed without some
reasonable consideration of the economics of our court.
There are, of course, two sides to the economic equation of a Court’s budget:
revenues and expenses. Today we will discuss the former only, but do not
overlook the latter: there is nothing wrong with operational efficiency and if my
own experiences have taught me anything, reductions in force (RIF) and cost
cutting are on the budget menu annually. Expenses must be carefully monitored
and constantly re-evaluated. However, we will leave that discussion for another
day.
Today, we will examine only a small part of the revenue side: how to collect
a delinquent fine. We are not going to discuss how much a fine should be. You
are all independent Judges, vested with a great deal of discretion. Since most
traffic laws in Georgia are misdemeanors, O.C.G.A. §40-13-26(a), fines can range
as high as $1000 plus state surcharges. There are even aggravated misdemeanors
that can have up to $5000 in fines. See, e.g., aggressive driving under O.C.G.A.
§40-6-397 (see O.C.G.A. §17-10-4) and third time driving with a suspended
license under O.C.G.A. §40-5-121 (up to a $2500 fine). Your decision on how
much to fine is guided by your intelligence, training, and experience as applied to
the facts of each case. What we will talk about is what a court can do if a fine is
not paid. How does a court collect a fine if a defendant does not pay?”
II.
WHAT IS THE LEGAL STATUS OF A FINE?
When a defendant is ordered to pay a fine, that order is a judgment of the
court. O.C.G.A. §9-2-10. Like any money judgment, it may or may not be
collected. As I used to say, when I practiced collection law for 25 years, (and
excuse me if I paraphrase our 16th President):
(a) You can get a judgment some of the time;
(b) You can collect some judgments all of the time;
(c) You can not collect every judgment all of the time.
When I was given a judgment to collect by a client or another attorney, the
first thing I had to determine was if the judgment was valid. Did the originating
court have proper jurisdiction? In collecting a fine, this should not be an issue
because in most cases the defendant appeared in open court, and (hopefully)
properly waived her right to an attorney (if the defendant was pro se), a jury trial
(in traffic, simple marijuana, shoplifting, etc. cases), etc. I have yet to encounter a
defendant refusing to pay a delinquent fine, who is claiming lack of jurisdiction
except in a “stolen identity” setting. Moreover, challenges are severely time
limited under O.C.G.A. §40-13-33 and its 180 days time limitation period. So
most of the time, the fine is a valid judgment.
III.
CONVERTING THE FINE TO A WRIT OF EXECUTION (Fieri Facias)
So here we are: the court has issued a sentence with a fine that remains
unpaid. Perhaps the court, either through its Clerk or Solicitor (if it has one) has
called or written to try to collect the fine, but with no results. How do you “force
the issue?”
As we have learned, a fine is a judgment of your court, just like any other
judgment in any other court, whether that be a magistrate, state, or superior
tribunal. In a civil case, a writ of execution called a writ of fieri facias or fi.fa is
issued after an order is signed by a judge. O.C.G.A. §9-13-1. However, most
unpaid fines arise from criminal cases (traffic is probably the highest volume) and
the question of whether a writ of execution (fi. fa.) can issue to collect a criminal
fine was settled over 138 years ago in McMeekin v. State, 48 GA 335 (1873). The
defendant was found guilty “of the offense of helping open a tippling house [bar]
on the Sabbath day”, id; was ordered to pay a $300 fine, but did not do so. The
Georgia Supreme Court’s Opinion framed the issue (and the answer) as follows:
“We think the decision in Brock vs. The State, 22 Georgia, 98, settles
the question whether the imprisonment was part of the penalty, and
that it was only a means of enforcing the collection of the fine.
If a defendant in a criminal case is fined, and refuses to pay the fine
imposed, can it be collected by an execution against his goods? etc.
There is the judgment against him for a specific amount, and section
3584 of the Code provides that "the Judge of any Superior Court may
frame and cause to be issued by the clerk any writ of execution to
carry into effect any lawful judgment or decree rendered in his Court."
It is contended that this section refers only to civil cases. But is not
this a power inherently existing in the Court? And why should it be
limited to civil any more than to criminal judgments? In one case, it is
a debt due an individual; indeed, in civil cases it may also be for a
debt due the State. In a criminal case the judgment is for a penalty,
and it may be said due the State, and some of the authorities call it a
debt of record. In The King vs. Woolf, I Chitty, 236, (18 English
Criminal Law Reports,) the point was distinctly made and decided,
that a levari facias might issue for a fine. Abbot, Chief Justice, said:
"It seems to me that the case of The King vs. Wade, in which it was
ruled that though one be in execution for a fine to the King, yet a
levari facias de bonis et catallis lies, is a decisive authority in the
present case. It is an authority founded upon the general principle of
the common law, and shows that a levari facias may issue for a fine
due the King, a fine being in fact a debt of record." Bayley, Judge,
said: "The only question we have to consider is. whether the crown
has a right to issue a levari facias for the debt in question, and upon
that point, it seems to me, on principle, there can be no doubt. Indeed,
the question is not discussed on principle; it is not shown in any
respect to be inconsistent with legal principle. The only thing that is
said is, that this is a new mode of proceeding. * * * * By the
judgment, the debt becomes a debt to the King of record, and it is
payable to the King instanter. To say that the crown shall not be at
liberty so sue out an execution for its debt, is to place the crown in a
worse situation than that in which the subject stands." The case of The
King vs. Woolf was decided in 1819; that of The King vs. Wade, more
than one hundred years before that time. In Virginia, the Court of
Appeals, in Pifer vs. The Commonwealth, 14 Grattan Reports, 716, a
case not involving directly this question, seem to consider it as an
unquestionable right in the State. "The judgment in term is final;
execution may have been issued and levied out of the property of the
defendant," and also, "the judgment for the fine and costs would be
final and execution could issue and be collected." To the same
purport: See 8 Wend., 203; Bishop\'s Cr. Prac, sec. 870; Bac. Abr.,
vol. 4, 244.
We do not see any reason why this rule does not exist in Georgia, nor
why the State should not be able to protect itself in enforcing its
judgments against the necessity that might occur, either of discharging
or supporting, for an indefinite period, an obstinate defendant.”
Id., 48 GA at 337-339. The McMeekin decision has been followed consistently
over the years. Hall v. State, 155 GA. App. 724 (1980) and Ward v. State, 195
GA. App. 166 (1990).
What does a Writ of Execution look like? At the end of these notes, Exhibit
A is attached and that is a blank form that is prepared by the Clyde Castleberry
Company in Covington, GA (770-787-1031)/Clyde Castleberry Company.com).
This fi.fa. form is generally used throughout Georgia by most magistrate, state, and
superior courts.
IV.
THE ADVANTAGES OF A WRIT OF FI. FA. - LIEN ON THE
DEFENDANT’S ASSETS/ADDITIONAL PUBLIC RECORD OF FINE
Why is it important to have a writ of execution/fi. fa.? The issuance of the
writ and having it filed with a Clerk of Superior Court is the only way a lien can be
placed on all the defendant’s assets. O.C.G.A. §9-12-86(h), states as follows:
“No judgment, decree, or order or any writ of fieri facias issued
pursuant to any judgment, decree, or order of any superior court, city court,
magistrate court, municipal court, or any federal court shall in any way
affect or become a lien upon the title to real property until the judgment,
decree, order, or writ of fieri facias is recorded in the office of the clerk of
the superior court of the county in which the real property is located and is
entered in the indexes to the applicable records in the office of the clerk.”
Id., emphasis added. Note that the language of O.C.G.A. §9-12-86(h) further
supports the idea that a writ of fi.fa. can be issued by a Municipal Court-----after
all, how could a lien issued by a Municipal Court ever encumber real property if a
Municipal Court did not have the power to issue a writ in the first place? Note that
a lien on all the defendant’s real property is only established by recording the fi.fa.
on the G.E.D. in the county where the property is located. O.C.G.A. §9-12-86.
This is may not necessarily be in the county where the judgment was rendered.
Even if you think, maybe the defendant owns property in a “foreign county”,
record your judgment there and everywhere property might be located. Record it
immediately as any judgments or other matters recorded before your judgment is
recorded will have priority over you. O.C.G.A. §9-12-81 and see 11B E.G.L.
Executions §64 (1988 Rev.). When I was in private practice, I once recorded a
pre-judgment attachment lien at 12:01 p.m. in Henry County and “beat” a second
mortgage recorded at 12:10 p.m. for the same debtor. TIME IS OF THE
ESSENCE! (By the way, the case was a $40,000 dispute and as a young lawyer on
a contingency, that fee was a big boost to my morale, to say the least!)
Normally in a civil case, to have a writ fi. fa. issued by a Clerk of Court and
recorded by the Clerk of Superior Court on the General Execution Docket (G.E.D.)
requires costs to be paid to the various clerks. O.C.G.A. §§9-12-94 and 15-6-77.
You, however do not have to pay anything! Look at O.C.G.A. §17-10-20(a),
which states as follows:
“In any case in which a fine or restitution is imposed as part of the
sentence, such fine and restitution shall constitute a judgment against
the defendant. Upon the request of the prosecuting attorney, it shall
be the duty of the clerk of the sentencing court to issue a writ of fieri
facias thereon and enter it on the general execution docket of the
superior court of the county in which such sentence was imposed.
Such fieri facias may also be entered on the general execution docket
in any county in which the defendant owns real property.”
Id., emphasis added. If your court has a Solicitor, all he/she needs to do is issue a
“request” (I suggest it be in writing) to your clerk and the fi. fa. will be issued.
(This is a ministerial act for which your clerk has no discretion.) The only
restriction on this procedure is set forth in O.C.G.A. §17-10-20(b):
“If, in imposing sentence, the court sets a time certain for such fine or
restitution to be paid in full, no execution shall issue upon the writ of
fieri facias against the property of the defendant until such time as the
time set by the court for payment of the fine or restitution shall have
expired.”
If the defendant has been placed on probation or has been given “Time to Pay”,
then the fi.fa. can not be issued until there is a failure to pay. The probation officer
needs to issue an affidavit under O.C.G.A. §42-3-34.2 (See Exhibit B) and the
court can issue an order (Exhibit C).
Now that a fi. fa. has been issued, what next? Send it to the Clerk of
Superior Court in your county and (after it is returned to your office) to the county
where the defendant resides (look at the address on the ticket), or may own real
property. Unlike the private attorney, the Municipal Court does not have to pay
the Clerk of Superior Court anything to file the writ on the G.E.D.! O.C.G.A. §1710-20(g) specifically states:
“No fees, costs, or other charges authorized by law in civil cases shall
be charged by a clerk of superior court for entering a judgment arising out of
a criminal case on the general execution docket or for any action brought by
the state to enforce such judgment.”
Does it matter that the Defendant does not own any real estate? No, because the
credit bureaus (Equifax, Experian, and TransUnion) will pick up this public
information and place it on the credit reports of the defendant. What happens
when they go to get a loan to buy a car or a house, or rent an apartment, or apply
for a credit card? The unpaid fine shows up! There is a good chance the defendant
will come to Municipal Court and pay the fine to get this off their credit record.
The City of Atlanta is now reporting unpaid parking fines and the results have been
good. See a recent news story at Exhibit D.
V.
CAN A LICENSE BE SUSPENDED FOR FAILING TO PAY A FINE?
Probably many of you in attendance today are wondering “Can the court
suspend a defendant’s license for failing to pay a fine?” After all, a license (or
Georgia driving privileges for an out of state driver) is suspended for failing to
appear in court when the case is initially on the calendar and every subsequent
court appearance through plea or trial date. The short answer is “No” because of
the language of O.C.G.A. §40-5-56(a):
“Notwithstanding any other provisions of this chapter or any other law
to the contrary, the department shall suspend the driver’s license or
privilege to operate a motor vehicle in this state of any person who
has failed to respond to a citation to appear before a court of
competent jurisdiction in this state or in any other state for a traffic
violation other than a parking violation.”
Id., emphasis added. When a defendant does not pay a fine, it is not a question of
failing to “appear”, it is an issue of failing to “pay” and O.C.G.A. §40-5-56(a) will
not allow a court to suspend a license for a failing to pay a fine. (And we know an
“FTA” suspension almost always results in the defendant coming back to court---they got arrested somewhere else and must appear in your court before the “new”
ticket can be addressed.)
Or, can the “FTA” §40-5-56(a) help after all? Suppose you give a defendant
“time to pay” a fine (no probation) and he doesn’t show up to court next month?
That driver did “fail to appear” on that calendar and, yes, I believe the standard
Form 912 can issue in this situation. The 912 issues not because the driver failed
to pay the fine, but because he did not appear to either pay or explain why the fine
could not be paid. Has anyone of you tried this approach? Does anyone know
DDS’ position?
Recall, if a defendant is placed on probation, the procedure for issuing a
fi.fa. is changed, as O.C.G.A. §17-10-20(b) says a fi.fa. cannot be issued if time
has been given for a fine to be paid. Recall also that O.C.G.A. §42-8-34.2(a)
requires a probation officer to execute an affidavit (Exhibit B) to be followed by a
court order (Exhibit C), and this activity occurs without any Solicitor participation.
Now, in the probation setting, suppose on sentencing date, a defendant in a traffic
case is placed on 12 months probation and at the time of the initial sentencing, the
defendant is personally served with a Notice to Appear in court 11 months from
the sentence date on a “Probation Status Calendar”. If the fine is paid in full, the
case closes out and is no longer on that Probation Status Calendar. However if the
defendant does not pay in full (or otherwise has not completed all terms of
probation) and does not “appear” in 11 months, then there is an FTA. Wouldn’t
O.C.G.A. §40-5-56(a) then apply? Can’t a Form 912 issue then? I do not see any
legal distinction from failing to appear on arraignment, trial, on probation calendar:
An FTA, is an FTA and §40-5-56(a) does not make any distinction regarding what
type of “Appearance” calendar is involved.
It seems to me that if a court makes it a Standard Operational Procedure
(SOP) to automatically reset every probation sentence to a future Probation Status
Calendar, the 912 form procedure can be used. We already know how effective
O.C.G.A. §40-5-56(a) is----does anyone have any thoughts on this approach?
VI.
OTHER WAYS TO COLLEECT UNPAID FINES
Sometimes the writ of fi.fa. is not enough to collect a judgment. The
defendant may not have any real estate, may not be applying for a loan, and simply
claim have no funds to pay the judgment. However, there are additional ways to
collect the judgment other than by voluntary payment from the defendant. One of
my favorite ways to collect a judgment during my 25 + years as a collection
attorney was to file a garnishment against the defendant’s bank account, or against
the defendant’s employer, or both. This can be done under O.C.G.A. § 17-10-20
(c) which authorizes not only garnishments but levies and foreclosures and “…all
other actions provided for the enforcement of judgments in the state of Georgia and
in other states and foreign nations…” A court judgment for an unpaid fine can
proceed like any other judgment in a civil case or any other case: a creditor say, the
Atlanta Municipal Court, can collect a judgment like any other creditor.
A garnishment is essentially a separate lawsuit filed against a defendant’s
bank account or the defendant’s employer (as a garnishee) and lists the
traffic/criminal court defendant as the defendant in the garnishment action. The
garnishment action is a civil case filed in the county where the financial institution
or the employer is based. Normally a private garnishing creditor has to pay a filing
fee because a garnishment case is a civil case, and, like any civil case, the clerk of
the court charges a filing fee. However the Municipal Court is not required to pay
any court costs “up front.” O.C.G.A. § 42-8-34.2 (c). The only time court costs
are collected is if the garnishment is successful by seizing a defendant’s bank
account or garnishing 25% of the defendant’s net take home salary, after
deductions for taxes. Then, and only then, the defendant pays the garnishment
court costs.
Of course, we as judges will not be filing garnishment actions. Garnishment
cases would be filed by the Solicitor of our court. The garnishment action is very
simple: an Assistant Solicitor simply fills in the blanks on a pre-issued form
obtained from the garnishment court, and the case is sent over to a state or
magistrate court for filing. It is not difficult to trace a defendant’s bank account
because often the defendant has paid probation at least some of the time and used a
check. The existence of the account upon which a previous payment has been
made via check can be confirmed and the garnishment action can be filed in a
matter of minutes. Since a defendant on probation is often currently employed (I
presume that information is within your Probation Department’s file), employment
can be confirmed and a garnishment action against the defendant’s employer can
also be filed rather easily. While this is additional work for the Solicitor, most of it
is routine and can easily be taught to an office clerk. An Assistant Solicitor will
simply sign off on the pleadings and they will be filed in court in any county
whether the defendant has either a bank account, employment, or both.
Another thing we can do to collect unpaid fines is to sell the judgment to a
third party. Writs of fi.fa. are transferable and can be sold, even at a discount.
O.C.G.A. §9-13-34. We can sell our fi.fa. writs just like any other creditor and
this will secure instant funds and will allow our cases to be closed.
If this procedure of using fi.fas. and filing garnishments to collect a
judgment sounds simple, it is, because Georgia is a “creditors’ state.” I made a
fairly good living for over 25 years filing garnishments to collect judgments not
only in cases for clients that I prosecuted but for other lawyers. I recommend these
procedures as they would place Municipal Courts on the forefront of collecting
delinquent fines and would generate much good will from the citizens who will see
that our judgments mean something, and that we are carefully watching our costs
and expenses.
VII. OTHER CONSIDERATIONS
Before we all start issuing writ of fi.fa. and selling our judgments for unpaid
fines, there are some practical considerations to ponder. Our Superior Court
Clerks no doubt are under-staffed and over worked. Does the City of Atlanta want
to send over 10,000 fi.fa.’s to the clerk to record at no charge? What will that do
to intergovernmental relations? Perhaps a trial run of 100 fi.fa.’s may be the best
way to proceed. Or perhaps, our court could “loan” of few of our own clerks to
Superior Court and they can be sworn as deputy clerks in that office to perform the
actual recording and G.E.D. book preparation.
Does your city really want to get involved in selling fines? Selling a fi.fa.
judgment to collect a fine is legal, but is it politically a good idea? Fulton County
sells its tax liens and the fallout is legendary. While selling a judgment for an
unpaid fine is an attractive investment to put on the open market for bids (a fine
cannot be discharged in bankruptcy----see Kelly v. Robinson, 479 US 36 (1986)),
but is that the right thing to do?
Also, how do you deal with surcharges when a fine is sold? One position is
that surcharges are not owed at the time of a fi.fa. is sold because the fine is not
being paid by the defendant or anyone on his behalf---only the judgment is being
sold. The other position is that the Court is collecting some money as a result of
the fine, although the balance will be written off by the Court. No doubt the
Superior Court Clerks’ Cooperative Authority will look at O.C.G.A. §15-21A-4(a)
(1) and take the latter side: money was paid towards the fine and surcharges are
due. What happens when the transferee of the fine collects the judgment from the
defendant? Does the transferee/investor now pay the Authority? This issue is
simply not addressed under current Georgia law. Does anyone have any solution
to this problem?
One other consideration is a legislative solution. Currently, if someone owes
back child support, the State of Georgia can get a “set off” of a State income tax
refund under O.C.G.A. §48-7-160 et. seq. In fact there are 8 types of State owed
obligations that can intercept a state income tax refund check under O.C.G.A. §487-164. Why not add an unpaid court fine to this list?
The American Bar Association passed a resolution on February 14, 2011
urging Congress to enact legislation similar to H.R. 1956 and S. 3989 (11th
Congress) that would amend the federal tax code to let states intercept federal tax
refunds to collect delinquent fines. See Exhibit E. The American Bar Association
has some other ideas regarding count efficiency (see Exhibit F), but not all of them
may be proper for your court.
VIII. CONCLUSIONS
First, let me thank you for listening. I hope I haven’t bored you or kept you
too long from Savannah’s fine restaurants and other activities.
Second, let me thank the Institute of Continuing Judicial Education for
allowing me the privilege to teach. I always learn more from the attendees than
they learn from me, so teaching is a great benefit to me as a Judge. Teaching will
benefit you, too. Call ICJE----they are always looking for new talent. You will
enjoy working with ICJE. I know I have.
Gary E. Jackson
Judge, Atlanta Municipal Court