It started with an HB2 protest. It could change what you owe any time you go to court.

Two protesters who were arrested at the N.C. Legislative Building a year and a half ago are now protesting the $180 court fees that came with their misdemeanor charges.

Carol Anderson and Dale Herman have been fighting the accusations in the Wake County courts since General Assembly police cuffed their hands with zip ties in May 2016 while they were protesting the controversial House Bill 2.

They have appealed a district court judge’s ruling that they were guilty of trespass. State prosecutors are appealing the same judge’s finding that provisions of the Legislative Building rules used to bring the charges were unconstitutional.

Now the attorney for Anderson and Herman is arguing that the court fees levied against the protesters are unconstitutional, too.

Scott Holmes, a Durham-based attorney, filed a motion in court on Monday that outlines his contentions. He argues that North Carolina’s state Constitution directs payments of fees, penalties and forfeitures to the funding of public schools.

Laws adopted over the years, including one this year limiting the ability of judges to waive fees when they find reason to, have established a system in which the accused in criminal and traffic cases are assessed fees that go toward the overhead of running the North Carolina court system and law enforcement efforts, Holmes contends.

“This is a really big deal because it will stop judges across the state from imposing criminal court costs in every kind of case — from traffic tickets to murder cases, until the General Assembly fixes the law and directs all that money to local schools,” Holmes said on Monday.

The protesters’ motion for relief comes at a time when civil rights organizations, defense attorneys and others are challenging how and when fines and fees are levied against criminal defendants.

Ferguson effect

The attention has stemmed, in part, from the Justice Department investigation into the police force and municipal courts in Ferguson, Mo., after the 2014 death of Michael Brown.

That shooting and other deaths of African American residents at the hands of police sparked protests and unrest. It also highlighted what the Justice Department later found — that Ferguson’s police force and its municipal courts routinely violated the rights of residents, particularly those who were poor and black, by focusing more on raising revenues through fines and fees to meet fiscal benchmarks.

“Ever since the 2014 events in Ferguson, Missouri, and the subsequent revelation of its misuse of municipal criminal court fees to fund judicial, law enforcement, and other governmental functions, the nation has been alerted to these increasingly common abusive practices within the criminal legal system,” Holmes stated in the protesters' motion challenging the constitutionality of North Carolina's system. “The collection of court fines and fees by municipalities to sustain their local governments provide a gross incentive and avenue for abuse, however similar injustices can be found on a statewide level within North Carolina.”

North Carolina’s court system is different from Missouri’s. In the 1960s, North Carolina adopted a statewide uniform court system that made the salaries of all judges and court employees part of the Administrative Office of the Courts budget, which is comprised of state funds. Before the 1960s, there were thousands of local courts across the state, and judges were paid by the fees they collected.

Though fines and fees collected now no longer go straight to the judges as they did three decades ago, much of the court costs fee goes to the state treasurer. Smaller portions are divvied among funds to pay for phone systems, technology, law enforcement retirement and insurance benefits, and to the Criminal Justice Education and Standards Commission, which trains and certifies law enforcement officers.

Hikes in fees and fines

Holmes noted the hike in fees and fines over past two decades.

In 1995, in district court, where traffic cases and misdemeanors are heard, the “cost of court” was $48. Today it is $178.

In Superior Court, the cost has risen from $48 in 1995 to $205 today.

Indigent defendants, people deemed too poor to pay for legal representation, are assessed a mandatory $60 fee before a trial judge can even consider the request. In addition to that fee, Holmes stated, the defendant is assessed an hourly fee for the defender assigned to the case, whether it is a public defender or private attorney that is imposed at the end of the case.

If someone is arrested and sent to jail and too poor to make bail while awaiting trial or resolution of their case, there is a daily charge of $10, Holmes added. People on pre-trial release are charged $15, his motion states.

If law enforcement officers or prosecutors send evidence to the case to a crime lab, the defendant is assessed $600.

“Theoretically, of course, many, but not all, of the costs and fees may be waived for an indigent defendant, although only after all of the affected agencies are given notice and the opportunity to be heard and a judge makes a written order, supported by findings of fact and conclusions of law, that there is ‘just cause’ to waive or reduce costs and fees,” the motion states. “A number of fees, however, including the $60 charge for requesting an appointed lawyer, are specifically delimited as ‘non-waivable.’ But the mandatory nature of the costs and fees in North Carolina goes far beyond those "non-waivable" fees, for the North Carolina General Assembly, in the last few years, has enacted a number of statutes which impose almost insuperable obstacles for any judge who wants to waive or reduce costs and fees for a criminal defendant.”

In 2014, Holmes noted, state lawmakers required the Administrative Office of the Courts to provide the legislature an annual report detailing which judges, by name, granted cost and fee waivers. The legislators also wanted to know how often each judge did so.

This year, the lawmakers went a step further and demanded that judges notify each entity that receives a portion of court fees and give them an opportunity to respond before doing so.

“This motion is not the place to discuss in detail the myriad harmful, even disastrous, impacts this war on indigent criminal defendants entails: the spiraling debt caused by interest assessments and penalties for non-payment; the criminal and civil penalties visited upon those too poor to pay; the conversion of criminal justice debt into civil judgment leading to the garnishment of already meagre paychecks and further disabilities; rearrests for failure to pay; and, ominously, the inevitable rebirth of debtors’ prisons at the end of the line,” Holmes contends. “All of this raises serious questions about the fairness of our criminal justice system, and about its promise of justice for all.”

Should schools get the money?

But instead of tackling those questions in the case of the HB2 protesters, Holmes focused on a provision enshrined in the state Constitution 150 years ago — Article IX, Sect. 7, which states “...all penalties and forfeitures and of all fines collected in the several counties for any breach of the penal laws of the State, shall belong to and remain in the several counties, and shall be faithfully appropriated and used exclusively for maintaining free public schools.”

Holmes and other civil rights organizations hope to persuade defense attorneys across the state to flood the courts with similar motions protesting how court fees and fines are distributed.

“For far too long the legislature has gotten away with circumventing the state constitution to fund an array of state agencies on the backs of the poor,” Cristina Becker, criminal justice debt fellow at the ACLU of North Carolina, said in a statement after Holmes filed the first protest. “North Carolina’s excessive court costs have created modern-day debtors’ prisons that keep people in jail simply for being poor and have a devastating impact on communities across the state. We are offering this motion as a template for other attorneys throughout the state and encourage them to use it to challenge the constitutionality of court fines and fees in every jurisdiction.”

David Hall, criminal justice attorney at the Southern Coalition for Social Justice, also lauded Holmes’ effort to change the system.

“We must do everything we can to end the unconstitutional practice of funding our court system on the backs of the poor and indigent people of the state,” Hall said in a statement. “The burdens of court fines and fees disproportionately affect people of color, and it’s time to end this practice.”

This story was originally published December 11, 2017 at 1:08 PM with the headline "It started with an HB2 protest. It could change what you owe any time you go to court.."