How the municipal court money machine burdens city residents

Hilda Brucker didn’t know she had been fined until she received a call telling her to rush to court. On October 10, 2016, the 58-year-old freelance writer was working on a ghostwriting project at her home in Doraville, Georgia, a modest ranch house in the forested suburb just northeast of Atlanta, when the phone rang.

According to Brucker’s legal complaint, a city official told her she was due in court, and, afraid that a warrant might be issued for her arrest, she decided to show up. The reason for this sudden call? A week before, Brucker had evidently been fined $100 for rotted wood and chipped paint on her home’s facade, high weeds in her backyard, and cracks in her concrete driveway, which had been virtually unchanged since she moved in 26 years prior. Unbeknownst to her, local code enforcement officials had inspected her home on October 3 and alleged they sent the citations via certified mail (Brucker says she never received the letter, and her complaint alleges that there are no records the certified letter was ever sent).

Brucker went to the Doraville Courthouse, pleaded no contest, and paid the $100 fee.

She was also given six months of criminal probation for a series of small aesthetic complaints about her own home, according to her complaint, meaning she couldn’t leave the state without the permission of her probation officer. In full, the cracked concrete and chipped paint would cost her thousands in legal costs as she tried to get the sentence vacated.

“It was very hypocritical,” she says of the overbearing attitude the city had about her property. “The parking lot in front of City Hall is full of cracks.”

Jeff Thornton, who also lives in Doraville, became enmeshed in the city’s legal system over a pile of wood, according to the legal complaint he filed against Doraville. One of his neighbors chopped down a large oak tree in July 2015, and Thornton asked if he could use it for firewood.

It proved to be an expensive acquisition. Thornton would be subject to a series of citations for improperly storing wood in his backyard, beginning on July 25, 2015. He then spent a day with a wood splitter, chopping and stacking logs. City officials returned, checked his yard, and warned him about improperly stacking (they provided exact measurements for future reference).

The cycle continued for nearly a year, with every attempt at a fix found lacking. He restacked and added plastic guards to his fence to block the view from the street. He didn’t hear back from the city until he got a letter in the mail in July 2016 saying he had a warrant out for his arrest because he missed a court date and didn’t pay for a pair of tickets (which, Thornton says in his complaint, arrived in the mail more than a month later). At one point, he was threatened with a $3,000 fine and 12 months of probation. Eventually, the court dismissed the fine after a code enforcement official came to his house and confirmed that everything had been fixed.

“They treated it like it was a murder case or drugs, and likened covering the wood to hiding marijuana in my house,” he says in his complaint.

These experiences were part of Doraville’s “reign of terror,” says Brucker, when special code enforcement officers would prowl the streets with iPads, ready to document the slightest infraction. Citations were given to people who had left coolers on their carports or bikes in the front yard, Brucker says in her complaint, and she was once cited for having mailbox numbers that weren’t up to code.

According to a new lawsuit filed in federal court, this aggressive enforcement wasn’t just a nuisance. Organized by the Institute for Justice, a nonprofit legal firm based in Arlington, Virginia, the suit, which lists Brucker, Thornton, and two others as co-defendants, claims the city violated due process by “using its law enforcement and municipal court system for revenue generation.” The mechanisms of local justice have been turned into a cash machine for the city’s budget, the suit alleges.

Curbed reached out to Doraville for comment on the lawsuit and Brucker’s and Thornton’s specific complaints, but, according to a city spokesperson, “given this matter involves litigation, the city respectfully declines to respond to questions or comment further at this time.”

In most cities, fines and fees may account for 3 or 4 percent of municipal revenues. In the past 5 years, Doraville has budgeted to receive, and has received, anywhere between 19 and 30 percent of its budget through fines, fees, and forfeitures, according to the lawsuit.

“Home is somewhere you feel comfortable,” says Joshua House, a lawyer with the Institute for Justice. “To be in a place where you are afraid of breaking even the smallest little rule—and then having to pay money and go through a criminal court system—is really unnerving.”

Balancing budgets on fines and fees

Doraville isn’t alone. Across the country, cash-strapped towns and cities have turned to nuisance laws—fines and fees for minor traffic violations and violations of local housing codes—to balance their budgets without raising taxes. Many simply become municipal speed traps: A handful of small Colorado towns made more than 30 percent of their revenues from traffic tickets in 2015. Mountain View, Colorado, home to few more than 500 people, made $621,099 in citation revenue in 2013, roughly half of its annual budget.

“You shouldn’t be balancing your budget on your fines and fees revenues because that creates the incentive,” says House. “It’s easier to raise money by charging people in the court system who maybe are not voters. If you could tax everyone but yourself, you would probably vote for that, right?”

According to House, during initial research his team found budget reports on the city’s website connecting additional court dates to revenue collection (“the addition of more court dates this fiscal year has resulted in increased collections of municipal court fines”). He argues it’s clear from the city’s ledgers that the city derives a significant amount of its revenues from fines.

The Institute of Justice has previously filed cases against other municipalities for aggressive and abusive code enforcement, especially as it relates to housing code violations. An ongoing case in Charlestown, Indiana, alleges that the city, in league with a local real estate developer, Neace Ventures, was using code enforcement to drive low-income residents to sell their homes. The city has denied these claims, and its lawyer wasn’t available for comment.

Another lawsuit claims that Pagedale, Missouri—a 94 percent African-American city of 3,300 northwest of St. Louis—violated its residents’ civil rights by targeting them for minor code enforcement issues. Area homes were lined with orange sticky notes warning residents about violating rules against drapes or curtains that aren’t “neatly hung,” small tears in their screen doors, or hosting a barbecue in their front yards (and residents are supposed to keep beer away from the grill; alcohol placed within 150 feet of the barbecue results in another fine).

According to an expert in municipal law who testified about the case in court, Pagedale issued approximately 1,336 tickets to 896 individuals for housing violations between January 2010 and September 2017—meaning 39 percent of the city’s entire adult population had been cited. A consent decree, negotiated by the parties and approved by a federal judge last Friday, settles the case, and requires that the city “substantially reforms how the City identifies, tickets, and tries those accused of violating its municipal code.”

According to Pagedale’s attorney, Sam Alton, “the city of Pagedale has always cared about doing the best job that it can to keep the city safe and clean for its residents, and keep properties in compliance with the laws of the state of Missouri and St. Louis county. The city decided to enter into the consent decree because most of the conditions of the consent decree are actions the city had already taken.”

“We’re policing the very behavior of poor people, and saying it’s not satisfactory, so we’re going to charge you money for it,” says Alexes Mary-Yvonne Harris, a professor of sociology at the University of Washington who wrote A Pound of Flesh, which looks at the increase of monetary sanctions as punishment in our legal system, including legal financial obligations. She sees these nuisance fees as part of a larger trend toward not just punishing, but also charging people for their wrongdoing.

For the past 25 years, states have increased the use, severity, and number of these types of sanctions, she argues, expanding the use of application fees for hiring public defenders or jail booking fees “to the point where the collection of revenue, and not the pursuit of justice or protecting the public, has become the driving force for criminal and civil enforcement.“

This pattern of policing behavior, according to Harris, is “very reminiscent of Jim Crow—even black codes—particularly for poor people.” She says that the increased growth of and reliance on fines and fees for those caught in the justice systems disproportionately affects the poor and people of color.

“We’re forgetting that criminal justice and safety is a service that the government should be providing for its citizens,” she says.

A 2016 report by the Conference of State Court Administrators noted that there were “spectacular examples of abusive courts motivated to maximize revenue,” and found that at that time, roughly 10 million Americans collectively owed more than $50 billion in legal financial obligations.

Compounding this issue is a lack of accountability at the local level, Harris says, especially in municipal court systems where those levying and adjudicating code violations work for the same government that benefits from their collection.

“There [are] no eyes on what’s happening,” she says. “No one’s actually investigating, and when we do go in and litigate, we see that constitutional rights are being violated, and the law is being broken.”

Creating a financial incentive to turn courts into revenue sources

House has called nuisance law fees a “regressive tax on some of the most marginalized people within the community.”

The Institute for Justice came across Doraville after reading previous local news coverage of Brucker’s case. It wasn’t until lawyers started digging into the numbers that it became apparent that something was wrong.

Doraville also hired a private firm to serve as a probation company that acts as a collection agency. Many of these types of private arrangements, where the amount of money these companies earn is directly related to the amount of money they collect from city residents, creates a subtle systemic bias.

“Once we start thinking of government servants as needing to produce economically, then they’ve lost the disinterested neutral appearance of a government servant, and they’ve become almost a private actor,” House says.

Like in many other cities, the post-Great Recession budget crisis produced a need for Doraville to find alternative sources of income, as did the loss of a GM plant a decade ago.

Pagedale exhibited a similar income shortfall, according to the complaint, having failed to balance its budget in 2009 and from 2012 to 2016, and running a nearly $400,000 deficit in 2012 (the city increased number of non-traffic tickets it issued in 2013 by 160 percent).

“When the city has complete control over its court for all these misdemeanors, it can manipulate that municipal court system in a way that maximizes revenue,” says House.

“Here, you’re ticketed by a city-hired police officer, arraigned and prosecuted by city-hired prosecutors, and convicted by a city-hired judge. All three of those people ultimately serve the city council as an ultimate authority. So there’s not even the semblance of separation of powers.”

The Institute for Justice’s Doraville case relies on precedents from two previous Supreme Court cases. Rulings in both Tumey v. Ohio (1927) and Ward v. Village of Monroeville (1972) argued, that on a local level, a decision-maker can’t have a financial interest in cases that come before the court.

There’s a direct connection between municipal code enforcement and municipal budget problems. Missouri previously passed a series of laws that capped the amount of money a city could raise from traffic tickets, limiting total ticket revenue to a specific percentage of a city’s budget. This percentage would be lowered again to 20 percent in 2015, in response to the issues caused by Ferguson’s reliance on traffic ticket revenue.

The Pagedale case alleges that, in response to these budget restrictions, Pagedale ramped up fines and fees for housing code violations. Many other Missouri towns followed suit: In the cities of Hanley Hills and Dellwood, non-traffic cases made up more than 60 percent of the tickets issued by those municipalities, according to research from Michael Imber, an expert in municipal finance who testified in the Pagedale case.

“Nobody in Doraville ever said mistakes were made”

Doraville, a working-class suburb of 10,501 people along the Buford Highway, has long been known throughout the Atlanta area as a city that is aggressive with ticketing. A 2014 Atlanta Journal-Constitution story found the city made more on traffic tickets per capita than any other area jurisdiction.

The Institute for Justice (IFJ) analyzed a year’s worth of traffic tickets, starting in August 2016, and found an outsized amount, 10 percent, were issued for technical violations, like drivers not having an insurance card or registration material in the vehicle. Since these violations couldn’t be “spotted” by a cop on patrol, IFJ lawyers felt the relatively high number of these kinds of tickets suggested the police were looking for any opportunities to write additional tickets. The other two plaintiffs in the Doraville case, including Janice Craig, a 57-year-old resident of unincorporated DeKalb County, received tickets while driving through Doraville.

Brucker alleges that the city’s recent renewed push to fine homeowners started after the city hired a pair of private code-enforcement officers, also known as “quality of life officers,” from Clark Patterson Lee—a for-profit architecture firm focused on property- and building-code enforcement—who would be in charge of code enforcement, instead of the police.

“I wouldn’t say they were aggressive,” says Rich Edinger a vice president at Clark Patterson Lee. “They wanted to be proactive about enforcing the codes.”

Brucker says this more aggressive enforcement fueled a sense of fear and nervousness among area homeowners. Few were comfortable, especially after being fined, fearing they might be in more trouble due to an additional violation. Brucker became especially nervous during her probation.

“The immediate fear was that they were going to come back the next day, find one more thing, and I’ll get a probation violation and spend the rest of my sentence in jail,” she says. “I was handing out house keys to friends and making arrangements for someone to take care of my cats.”

Brucker says she pushed for this lawsuit to hold officials accountable and make sure others didn’t experience that same fear.

“Nobody in Doraville ever said mistakes were made,” she says. “Nobody would admit that. There was no accountability for what had been done to me.”

Even small fees have an outsized cost for the poor

While speeding tickets or citations for overgrown lawns may seem benign, they can have serious consequences for the poor, who can’t afford to take time off work for court appearances and may be living paycheck to paycheck.

Two of the Pagedale plaintiffs, Valarie Whitner and her husband, Vincent Blount, received numerous tickets for not keeping their home up to code, according to the complaint, due to chipped paint on the gutters, missing screen doors, and a dead branch in the front lawn. Unable to afford the payments demanded by the city, they’ve since taken out a loan to pay for tickets, and Blount has been charged with missing court and was placed in a Pagedale holding cell multiple times.

According to a recent investigation by the Kansas City Star analyzing the distribution of traffic tickets in Kansas City, Missouri, 60 percent of tickets went to African Americans, who make up 30 percent of the city’s population, “burying already poor residents under a mass of fines and creating a financial pit few are able to pull themselves out of.” The city’s police chief issued a blog post in response to the paper’s story, explaining that the department was unclear about the data being analyzed, that white citizens had more tickets overall, and that officers usually don’t know the race of those they stop.

The newspaper’s analysis also found that the top charges for black drivers were “state license plate required” followed by “no insurance,” despite the fact that speeding was by far the most ticketed offense for the population as a whole.

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In 2016, the Civil Rights Division of the U.S. Department of Justice wrote—in what is sometimes referred to as a Dear Colleague letter—that “the harm caused by [unlawful fines and fees] can be profound.” The following year, a report by the United States Commission on Civil Rights, Targeted Fines and Fees Against Communities of Color, concluded that “the impacts of these practices have been borne by communities of color, along with the poor,” and that “municipalities that rely heavily on revenue from fines and fees have a higher than average percentage of African American and Latino populations relative to the demographics of the median municipality.”

“Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape.”

Professor Harris says that the expansion of fines and fees goes hand in hand with the expansion of mass conviction, mass incarceration, and the criminal justice system. Since the mid-1990s, the number and types of fines assessed have rapidly increased, whether for nuisance laws or making criminals pay for their time in the justice system via monetary sanctions.

A criminal justice system funded by criminals

House has faith that these types of municipal court systems can be reformed, and that reforms could attract support from across the political spectrum. Those who are pro–law enforcement don’t want the cops collecting fines when they should be focused on public safety, while others complain about the violations of civil rights these types of municipal regimes create.

The Institute for Justice hopes the recent consent decree in the Pagedale case last Friday—when the city agreed to a long list of reforms, including repealing the “Nuisances” and “Minimum Housing Standards” sections of its municipal code and eliminating sections of the code that allowed to city to ticket residents for harmless violations—will become a guidebook of sorts for good governance, giving local leaders a set of best practices for avoiding unfairness and capricious enforcement.

Professor Harris points to work that’s been done on the legislative level, including both a proposed ordinance in San Francisco that would cut the fees charged to poor defendants and a change in Washington state’s criminal fine and fee structure. There needs to be more action on the state level, says Harris, either through statutory changes or a state Supreme Court ruling, to force cities and counties to play fair.

Regardless of the size of the infraction, it’s an issue of justice, says House. He pointed to the DOJ report on Ferguson, Missouri—just six miles from Pagedale, and the site of protests over the killing of Michael Brown by police in 2014—which lays out how ramped-up enforcement, driven by issues other than public safety, can have detrimental effects.

“These cases illustrate a philosophy that the criminal justice system should be funded by criminals,” House says. “I don’t think that’s sustainable. It just seems particularly cruel to put the burden of financing that system on the people who, in a lot of instances, are already facing economic or other social difficulties.”