Thursday, March 16, 2017


Howard Herships argues: “Here we have a system in California in which the traffic court judge must find the traffic court defendant guilty [in order] to maintain the [court’s] funding”

by Matthew Kramer | Capitol Weekly | March 14, 2017

Traffic tickets aren’t so out of the ordinary – until you get to Howard Herships’ case.

After being caught by a red light camera on a right turn in suburban Sacramento, Herships, 73, contested the $200 ticket.

His fight has proven costly to Herships, who lost his driver’s license: The 2014 ticket penalty ballooned more than eight-fold to a whopping $1,665 in addition to a $55 driver’s license reinstatement fee, costs Herships said he couldn’t afford.

But the crux of the case isn’t the ticket. It’s the way California’s court system pays the salaries of its judges and employees. Judges impose fines, then use that money to pay themselves and other court workers, Herships argues.

“The judge who finds you guilty, his salary and benefits – health insurance and everything else – is paid for out of the guilty verdict,” Herships said. “It doesn’t make sense…you can’t have any financial interest in the outcome of the case.”

So Herships has gone to federal court to block the practice, citing a 1972 U.S. Supreme Court decision and a March 2016 U.S. Justice Department letter to prosecutors across the country saying judicial authorities should have no pecuniary interest in the fines they impose. He is seeking a court order to block the practice in California, targeting the state Department of Motor Vehicles, the Sacramento County Superior Court and the California Judicial Council, which administers the state court system.

Herships contends that California’s courts use traffic fines as self-funding revenue streams, despite the Supreme Court decision and the Justice Department’s directive. Representing himself in court, Herships filed the original suit on the grounds that he and millions of Californians had had their licenses illegally suspended after failure to pay exorbitant traffic fines and grossly inflated related fees. The traffic courts are directly funding their daily operating costs through these traffic fines – and this, he claims, represents a conflict of interest. He also contends that the courts don’t properly hold hearings on a defendant’s ability to pay the fine.

By one estimate, $858 million were raised in 2013 -2014, and these fees rose to the tune of several billion dollars over five years. According to a January 2016 report by the Legislative Analyst’s Office, the state has $11.2 billion in outstanding fees, uncollected by fined residents.

After being denied an initial state court hearing on his ability to pay the fine, Herships went to federal court. He asked that the state halt license-suspension practices and hold ability-to-pay hearings for those facing enforcement over traffic infractions.

In his case, the hearing denial was illegal, he says. He cited a state court rule — Rule 4.335 – which requires that one of the factors a judge must weigh in deciding whether to order an ability- to-pay hearing is a defendant’s “receipt of public benefits,” including Medi-Cal. Herships receives health coverage through Medi-Cal.

Herships followed up by seeking a restraining order against the state agencies involved.

On Feb. 6, U.S. District Judge Yvonne Gonzalez Rogers and representatives of the California Judicial Council held a conference with Herships. Out of that conference it was agreed that a ruling on his restraining order request would be given. The federal court ordered the state reply to his request for a restraining order — which the state did this week, opposing the restraining order — and Herships was given until March 20 to respond to the state. Rogers will then decide whether to issue the restraining order.

If the order is granted, Herships said that will be end of the case for him. But such a restraining order would only be temporary – and if Herships ultimately wins in court it could set a precedent and represent a landmark legal alteration which Herships said could cost the state of California approximately $2 billion in dismissed fines.

Herships remains determined if not optimistic.

“I’m requesting a temporary restraining order prohibiting their conduct,” he said. “You never get a fair determination; the judge has to look out where his paycheck is coming from.”

In part, his suit stems from the March 2016 “Dear Colleagues” memorandum. The letter from the Department’s Civil Rights Division and Office for Public Access said that “recent years have seen an increased attention on the illegal enforcement of fines and fees in certain jurisdictions around the country,” often for misdemeanors and civil infractions.

“Typically, courts do not sentence defendants to incarceration in these cases; monetary fees are the norm,” the letter noted, adding that when the fines “are not geared toward public safety but rather toward raising revenue, they can cast doubt on the impartiality” of the judicial system.

As part of his federal court filing in Oakland, Herships cited a 1972 decision, Ward v. Village of Monroeville. In that case, which involved an Ohio village official who also served as a judge and imposed fines that supported the court, in which the U.S. Supreme Court gave the opinion:

“This, too, is a situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, [and] necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.”

Herships believes this is a strong boon to his own case, where he sees a conflict of interest between the court’s role in imposing fines and, he claims, standing to profit from the collection of those fines.

“Here we have a system in California in which the traffic court judge must find the traffic court defendant guilty to maintain the funding based upon the penalty assessments, fines, and fees which total $1 billion annually,” Herships said in an email.

Parallel to Herships’ case is SB 185 – a bill put forward by state Sen. Bob Hertzberg, D-Van Nuys. SB 185 would halt the automatic suspension of driver’s licenses for people unable to pay fines and fees for minor traffic tickets. Further, it would require that courts determine an individual’s ability to pay on a case by case basis before setting fine amounts, according to Hertzberg’s office.

Capitol Weekly previously reported that one in six California drivers, approximately 4.2 million people, have suspended licenses because of inability to pay fines. This was the impetus for Hertzberg’s bill.

“Under existing law, it is virtually impossible for the driver’s license to be restored until all the unpaid fees, fines and assessments are completely paid. This jeopardizes economic stability in the state, limits the available workforce, and forces employers to bear the cost of replacing workers and finding qualified replacement workers with valid licenses,” according to Hertzberg’s office.

Whether Herships’ own case is decided in his favor or not it has already set a precedent in how far it has been taken. What follows the decision over a temporary restraining order remains to be seen.

The DMV and the Judicial Council returned request for comment saying that they have a policy to not comment on ongoing litigation.

EDITOR’S NOTE: The old fart did an outstanding job of presenting his case. I hope he prevails!

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