If you suffer the burden of thinking like a lawyer, it makes perfect sense.
When Cesar Garcia pulled the letter out of his mailbox, he immediately recognized the name of the law firm on the envelope – Silver & Wright. Eighteen months ago, they had dragged him to court, called him a criminal, cost him thousands of dollars and made his life hell. What did they want now?
Garcia opened the letter, prepared for the worst, but was still shocked by what he found inside.
The law firm had sent him a bill for $26,000.
When he protested, the price climbed to $31,000.
Oh sure, it sounds nuts when you bottom-line it. Actually, it’s even more absurd when you add in the details.
Garcia got in trouble with Coachella City Hall in 2015 after a city code inspector discovered he had expanded his living room, making space to run a small day care center, without first getting building permits. Silver & Wright, a law firm contracted as Coachella’s city prosecutor, took the building permit case to criminal court, filing 29 misdemeanor charges. Garcia signed a plea agreement, brought his house up to code, paid a $900 fine to the court and moved on with his life.
And then came the bill from Garcia’s prosecutors for the joy of being prosecuted. For Silver & Wright, it’s good work if you can collect. But then, what are the chances their targets have the funds to fight, either the charges or the bill? And in some jurisdictions, though not Coachella*, apparently, the enforcement mechanism for failure to pay your prosecutor is jail.
But the key to this insanity makes complete sense. There are costs associated with prosecuting criminals, running a court system, even providing the indigent with a defense. Guilty or innocent, there are costs. Shouldn’t the government be allowed to pass those costs along to the defendant, the person responsible for generating those costs? Sure. Why not?
Even when the defendant is innocent, it satisfies the rational basis test. But here, Garcia wasn’t innocent. He pled GUILTY!!! Why should the good citizens of Coachella be forced to pay the cost of prosecuting the guilty when it’s entirely constitutional to shift the cost to the guilty party himself?
There is no advocacy group arguing for the sake of guilty defendants. The ACLU didn’t leap into the fray. And it is, without a doubt, rational to shift the cost to a guilty defendant, if not an innocent one. Such measures start small and establish themselves bit by bit. A small surcharge imposed on every guilty defendant. Then a slightly higher fee, until the court fees exceed the fine. There is a fee to book ’em, Dano, because booking them has costs. And what about their free lawyers, who need to be paid too?
So now it’s the cost of contracted prosecutors? Why not? They have a bill for their services, and it needs to be paid so Silver & Wright can put gas into their Mercedes. Gas isn’t free, you know.
Silver & Wright is a state leader in nuisance crime legal work. In 2015, when Los Angeles needed help with more than 600 vacant properties, Silver & Wright was one of two law firms the city turned to. More recently, the firm has litigated nuisance properties – although not always in criminal court – in Santa Barbara, Santa Ana, Chino, Banning, Lake Elsinore and other cities. One of their newest customers is the Orange County city of San Clemente, which contracted Silver & Wright earlier this year with the specific goal of “100% cost recovery” in all prosecutions, according to city documents.
There are, of course, alternatives for code enforcement, such as civil actions rather than criminal. And there are certainly good arguments of disproportionality, when trivial offenses generate tens of thousands of dollars of fees. And there are excuses about how the defendants brought this on themselves by being uncooperative and disputing the allegations. But these are mere PR problems, not legal ones.
Municipal governments don’t want to look like bullies to their voters. They also don’t want to tax their voters to cover the costs of municipal government. Since the law allows them to dump their expenses on defendants, they can keep the costs off their budgets, maybe make a few bucks even though they’re not supposed to as that exceeds the rationale for allowing the pass through of expenses (but it can inadvertently happen), and firms like Silver & Wright, who specialize in beating code violators into submission, do all the dirty work for them.
Defendants, for obvious reasons, complain about the gross unfairness of it all, dumping fees onto them, particularly when most go unrepresented since they have no idea how high the stakes can get. They see a code violation. How bad could it be?
As for the proportionality issue, the prosecution fees aren’t related to the seriousness of the offense, but to the claim of time expended by the prosecutor. Sure, an indigent defender may be limited to $1000 for a capital case in some jurisdictions, but what does that have to do with a code enforcement prosecution where the lawyer gets $26,000? Is it Silver & Wright’s fault you chose the wrong legal practice area?
Had the constitutionality of shifting of expenses onto defendants been determined using the strict scrutiny test, as applied to fundamental rights, there is little doubt that none of this would have been allowed. But it wasn’t. Rational basis was applied, and it’s totally rational. And absolutely outrageous. And that’s how law happens and why it’s good to be Silver & Wright.
*The retort here is that if Garcia didn’t pay, they would put a lien on his house and “potentially” auction it off to cover the bill. Not a whole lot better than jail.
Well, I’m not a lawyer and don’t play one on TV (or the Internet), but I don’t see how it can possibly be legal for somebody to get billed after the fact, without prior agreement or court order, for prosecution expenses. Surely, such fee recovery should need to be brought up in the original court action, with the defendant having a chance to raise objections, and signed off on by the judge. If that were done to me, I’d be insistent on taking it all the way to the U.S. Supreme Court.
It costs a lot of money to take it all the way to the U.S. Supreme Court, but if you’re sure, I’m game.
“But public documents still show the law firm argued it was entitled to thousands of dollars for a court case where prosecutors attended a single court hearing that lasted a few minutes at most.” As someone who deals with clients complaining about fees often and understands the work on this matter no doubt involved more than just attending “a single court hearing.” Nevertheless, the fees quoted in this story do seem pretty excessive and, given the firm has a contract with the city, may be insulated from the competition and scrutiny that normally provides a check on excessive fees.
While a single court hearing can involve more than the time before the judge, you’re now dickering over price, not the concept of charging a defendant for the pleasure of being prosecuted.
Put cities in a box where they can’t raise taxes without a vote of the electorate, and this is the kind of stuff you are going to get. Here is a function the City could almost certainly perform more efficiently by actually hiring prosecutors. But, that would take some internal budget, covered by general tax dollars, so no, it’s Silver & Wright instead. I can almost picture a snowman with the voice of Burl Ives, singing a happy song about all of this.
The point of subcontracting prosecutors and charging them off to defendants is that the cost isn’t paid via taxes, they don’t have raise taxes so taxpayers get a free ride and everybody sings Burl Ives songs except the defendants.
The “user pays” thing has its upside and its downside. Some cities have been charging “response fees” for police, fire and EMS now for almost a decade, and others are charging fees now for admission to city parks. It is puzzling in that this movement is occurring simultaneously with the onslaught of “progressivism,” even though it marks a retreat from two centuries of political thought that viewed such things as parks and emergency services as a general public good.
Why puzzling? This is how progressivism can pay for every bell and whistle it desires without bankrupting the taxpayers. Just because they haven’t figured out that the money has to come from somewhere doesn’t mean they’re not entitled, now that everything is a right.
It’s just inconsistent with the philosophy of, for example, public parks. From the very first, they were a pressure-release valve from early industrial capitalism. The basic notion was to apply general tax revenues to provide open, common spaces and recreational venues for people who could not pay. When cities make them “user pays” amenities, it destroys the root concept. The city is no longer providing anything the local YMCA isn’t providing, and maybe not even that (given that the Ys have programs for people who can’t pay). It comes down to a giant “screw the poor” signal, and misses what should be a huge point, that 100% cost passthrough is fundamentally not the same as a government-provided service. It is simply an enforced monopoly, carried by those who get the bills.
So I write a post about defendants paying for prosecutors, and you want discuss user fees for public parks.
Perhaps I strayed a bit far afield.
What happens when the hired prosecution firm decides to split fees with the police?
The cops do a happy dance and the prosecutors stop getting tickets?
I have to admit that I once drove a bit too fast, down in VA, and ended up in a courtroom, where I pled guilty, because I was (my bad), and ended up with a substantial fine, plus substantial costs for “fees”. I understood that the fees were supposed to pay for the court costs (whatever they are), which was a bit perplexing, but I now see where it is going. Next we will have charges for the cop who wrote the ticket, his healthcare and pension costs, the radar gun, depreciation on the cop car, gas, and the buildings where he is stationed. Plus the costs for the accountants to break it all out and the clerks to administer it.
If they increase the user fees to take care of paying for the justice system, it gives the politicians more money to give to their supporters, in the various ways that they do. “Look how much we do for you, without raising your taxes.”
To paraphrase Andy Warhol, in the future, everyone will be a speeder in Virginia for 15 minutes.