Legal Green

A $3 fee contributes to the retirement fund of more than 100 former Missouri sheriffs, and $4 goes toward a similar retirement fund for prosecuting attorneys. State head injury and spinal cord injury funds get $2 each per case, and a $1 surcharge funds motorcycle safety education programs.

The small surcharges add up. In the 13th Circuit, which covers Boone and Callaway counties, defendants with misdemeanor charges pay just less than $100 in various court costs. Felonies come with more than $210 in fees and surcharges, made up of small contributions to up to 17 state funds and court services.

Although many criminal defendants in Boone County will pay either $98.50 or $210.50 in court costs this year, there is completely different fee schedule for the municipal court system, and total court costs can vary widely by jurisdiction and criminal offense. A Missouri Supreme Court ad hoc committee found the current system is confusing not only for the public but also for professional court staff and attorneys. It’s also led to lawsuits. Legislators in the General Assembly have talked about reforming the cost structure in previous sessions but haven’t passed any legislation related to it. That could change in 2015: The General Assembly has made judicial reforms a priority for its session that began in January.

Columbia defense attorney Jennifer Bukowsky became aware of the lengthy list of court fees her clients were paying in 2009, when she was working as a public defender. Clerks normally process payments directly with defendants, but Bukowsky received a copy of the cost statement after she convinced a judge to allow an indigent client to serve 10 days in jail in lieu of paying court costs. His bill fell to $10, down from about $110.

She says she had seen clients struggle with payments they often must fulfill as a condition of their probation and was surprised that so few fees directly relate to court proceedings. About 40 percent of the total court costs go to clerk and court reporters’ fees. The rest are a hodgepodge of additional surcharges benefiting a number of retirement funds and other special programs.

“So often I would see people pulling the last dollars out of their pockets, their rides’, their aunties’, and these are people that probably owe their landlords money need to buy things and don’t have a lot of discretionary income,” Bukowsky says.

Lost in translation

In late 2013, the Supreme Court ad hoc committee encouraged the Supreme Court and the General Assembly to clarify the fee schedule and proposed 20 sections of the Missouri Revised Statutes where language could be examined or revised. But more than a year after the committee disbanded, the fees haven’t changed.

Bukowsky says the current fee schedule makes little sense. Her clients pay court costs toward the sheriff’s retirement fees even if they were arrested by city police officers, not a member of the Sheriff’s Department. They also pay either $15 or $30 to the Missouri State Highway Patrol’s DNA analysis fund, though Bukowsky says only a tiny fraction of her clients have cases that involve DNA evidence.

Most concerning to Bukowsky, though, is the number of fees that go toward law enforcement and prosecution as opposed to defense. Fees bolster law enforcement officer and prosecuting attorney training funds, but nothing goes to public defenders. Several studies have found Missouri’s public defender system is among the lowest-funded in the country.

“We have one of the worst-funded public defender systems in the country,” Bukowsky says. “They’ve just found a bazillion ways to out-resource private persons who can’t afford all these resources to fight the tremendous resources of the government, and they’re not funding the public defenders either. It just kind of implicates liberty issues.”

Money regularly changes hands in the court system. In fiscal year 2014, Missouri’s circuit and municipal courts disbursed nearly $292 million to the state, counties, cities and other entities, according to Missouri Supreme Court records. Columbia’s municipal court disbursements totaled more than $2 million in fiscal 2014.

The Supreme Court Committee on court costs’ final report to the court didn’t make any recommendations on individual charges but did note the current court fee and surcharge structure is confusing.

“The language of several current statutes relating to costs and surcharges leaves them ambiguous or open to variable interpretations, resulting in past confusion, current litigation and a proliferation of requests for opinions from the Attorney General,” the report says.

The report says revising the fee system was an issue that the General Assembly would need to consider. Although the Supreme Court ordered the committee, it has yet to act on the report.

“The court did not take any action relative to the recommendations,” says Catherine Zacharias, an attorney at the Office of State Courts Administrator who helped compile public comments for the committee.

Four lawyers weighed in when the committee asked for public comment. Pat Brownlee, a St. Louis attorney, says she hoped court costs could be standardized across Missouri’s 114 counties. The other attorneys focused on a particularly controversial surcharge: the sheriff’s retirement fee.

“How is it ethical, reasonable or even ‘legal’ to assess costs for a sheriff’s retirement fund against municipal court defendants who were not ticketed or arrested by any sheriff department?” writes Janet Elise Oliver, a Kansas City attorney. “What’s next? Highway patrol retirement fund? Smacks of a good ole boys club to me.”

Municipal courts, which handle citations such as local speeding tickets and noise violations, were once exempt from collecting the sheriff’s retirement fee surcharge. The General Assembly removed the exemption in 1996, and in 2013 Attorney Gen. Chris Koster issued a statement saying municipal courts should collect the $3 charge. Municipal courts across Missouri refused, and some local governments joined a Cole County lawsuit challenging the fee.

‘A debtor’s prison’

It’s possible for courts to waive court costs for the neediest defendants, but Bukowsky says it’s rare. In a few cases she saw as a public defender, a client would receive a waiver after serving 10 or more days in jail because his or her family failed to come up with the money to put even 10 percent toward a bond.

But the waiver program is inconsistent across Missouri counties. Some counties charge a fee for each day a defendant stays in jail. In others, failure to pay court or jail-related debts can even land a defendant back in jail.

“It starts to be like debtor’s prison, which is something we’ve historically put in our constitution to prevent,” Bukowsky says.

So far this legislative session, Springfield Sen. Bob Dixon, a Republican, has filed legislation aimed at reforming and clarifying municipal fees. Last year, some fee reforms were tacked onto a wide-ranging Senate bill he sponsored that modified laws relating to court costs, civil fines, court procedure, judgeships, Missouri’s open government laws and other law enforcement issues.

The bill garnered support from the Missouri Bar Association for clarifying court costs and passed the General Assembly, but Gov. Jay Nixon ultimately vetoed the bill over concerns the open government modifications would reduce government transparency. He wrote in his veto letter that the bill contained “a number of worthwhile provisions” he would otherwise support. The General Assembly did not override Nixon’s veto during its September veto session.

Although Dixon, who served on the ad hoc committee on court costs, has filed court cost legislation this year, several other leaders in the cost reform movement, including Sen. Jolie Justus, D-Kansas City, and Columbia’s Democratic Rep. Chris Kelly, have either reached their term limits or retired.

Bukowsky, though, remains hopeful that some sort of cost reform will happen. Dixon serves as chairman of the Senate Judiciary Committee, which is weighing a number of cost-related reforms and possible changes to the prosecuting attorney system.

“They’re looking to change up a lot of this this session,” she says.