Authority of a county to charge a fee for booking prisoners sentenced to serve time in a county jail on intermittent days

AGO 1993 No. 11 - Jun 2 1993

Attorney General Christine Gregoire

COUNTIES--POLICE POWER--CRIMES--PRISONERS--JAILS--SENTENCES--COSTS‑‑FEES--Authority of a county to charge a fee for booking prisoners sentenced to serve time in a county jail on intermittent days.

1. Counties have the authority to define certain local offenses and to prescribe penalties for their commission including the imposition of specific costs. Subject to certain limitations, a county may include as a cost a multiple booking fee imposed on persons convicted of such county offenses and sentenced to serve time in the county jail on intermittent days. Such a multiple booking fee could offset the cost to the county of processing the individual in and out of jail.

2. A county does not have the authority to impose a multiple booking fee on individuals serving time in the county jail on intermittent days who have been convicted of violating a state statute. The Legislature, rather than the county, specifies the punishment for state crimes including costs.

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June 2, 1993

The HonorableJohn Knodell
Grant County Prosecuting Attorney
Post Office Box 37
Ephrata, WA 98823

Cite as:AGO 1993 No. 11

Dear Mr. Knodell:

By letter previously acknowledged you requested our opinion on a question we paraphrase as follows:

May a county impose on a person sentenced to serve time in a county jail on intermittent days a fee that reflects the sheriff's costs of booking the person multiple times?

BRIEF ANSWER

We conclude that a county has no authority to impose a multiple booking fee on a prisoner convicted of a state crime --that is, a crime charged under a state statute. We also conclude that, subject to certain limitations discussed below, a county may adopt an ordinance providing that an offender serving time in the county jail on intermittent days for a county offense -- that is, an offense charged under a county ordinance -- may be required to pay a multiple booking fee as a cost imposed as part of the offender's sentence.[1] We discuss each of our conclusions below.[2]

ANALYSIS

Prisoners may be sentenced to serve time in county jails on intermittent days. See, e.g., RCW 9.94A.120(9) (sentences requiring confinement of 30 days or less may in judge's discretion be served on consecutive or intermittent days); RCW 46.61.5151 (court may allow persons convicted of driving while under the influence of intoxicating liquor or drug to serve period of imprisonment in intermittent time periods). Such a sentence may allow a prisoner to continue working or attending school, since jail time could be served on weekends or other days off. For this reason, prisoners may prefer to serve time on intermittent days.[3]

When first brought to jail, prisoners are "booked". As we understand the term, booking entails those administrative steps taken to accept a prisoner at the jail, such as photographing, fingerprinting, inventorying the prisoner's personal possessions, filling out forms, issuing jail garb, and so on.

Only one booking would be required for a prisoner serving a continuous sentence. Prisoners serving time on intermittent days, however, would have to be booked each time they arrived at the jail to serve another portion of their sentence. The question is whether the expense to the county of conducting these additional bookings may be recouped through the assessment of a fee on the prisoners serving intermittent sentences.

Counties have broad authority under article 11, section 11 of the state constitution to act in furtherance of their police power. That section provides: "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." The State Supreme Court has described this provision as follows:

This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws.

Bellingham v. Schampera, 57 Wn.2d 106, 109, 356 P.2d 292 (1960); see alsoBrown v. Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991).

Under this provision, counties may enact ordinances regarding "all those measures which bear a reasonable and substantial relation to promotion of the general welfare of the people." State v. Seattle, 94 Wn.2d 162, 165, 615 P.2d 461 (1980). County ordinances prescribing local offenses and punishments for them would constitute police power measures of the county under article 11, section 11 of the Washington Constitution. Such county ordinances may not, however, "conflict" with state laws. The courts have interpreted this to mean that counties may not legislate in a particular area when the state has preempted the field, or when the county legislation and state legislation on the same subject cannot be harmonized. Brown, 116 Wn.2d at 559.

The state may preempt a field either expressly or by implication. If it does so expressly, it is clear that no county is allowed to legislate in that same field. However, "[i]f the legislature is silent as to its intent to occupy a given field, resort must be had to the purposes of the legislative enactment and to the facts and circumstances upon which the enactment was intended to operate." Lenci v. Seattle, 63 Wn.2d 664, 669-70, 388 P.2d 926 (1964). The first step in deciding whether the state has preempted a field is determining the appropriate field to examine.

In this case, we believe the relevant field is that of possible sentences for committing crimes. A multiple booking fee would be assessable not against the general population, butonly against persons sentenced to serve time in a county jail on intermittent days.

Having identified the appropriate field, we must decide whether the Legislature preempted it. Clearly, the Legislature has left room for counties to define certain local offenses, and to prescribe penalties for their commission. In a number of cases, the state courts have held that local governments may enact ordinances defining offenses similar or identical to crimes established by state law. See, e.g.,Tacoma v. Luvene, 118 Wn.2d 826, __ P.2d __ (1992) (drug loitering);Seattle v. Eze, 111 Wn.2d 22, 759 P.2d 366 (1988) (loud or unruly behavior);Seattle v. Wandler, 60 Wn. App. 309, 803 P.2d 833 (1991) (hit and run driving); Seattle v. Barrett, 58 Wn. App. 698, 794 P.2d 862 (1990) (destruction of property).

However, we are aware of no case in which the courts have held that article 11, section 11 of the Washington Constitution authorized a county to change the range of sentences prescribed by state law for a state crime ‑‑ that is, a crime charged under a state statute. In our opinion, no county could do so because the Legislature has preempted the field of sentences for state crimes by adopting a comprehensive scheme of such sentences. The comprehensive nature of the Legislature's treatment of a field is evidence of the Legislature's intent to preempt that field. SeeSpokane v. Portch, 92 Wn.2d 342, 348, 596 P.2d 1044 (1979);Seattle v. Shin, 50 Wn. App. 218, 222, 748 P.2d 643, review denied (1988).

The Legislature has specified the elements of the sentence ‑‑ and in particular, the types of financial assessments -- that may be imposed on persons convicted of state crimes. In addition to terms of imprisonment and fines, a sentence may include restitution to victims, counseling, and various financial assessments. Most of these financial assessments are for costs incurred in prosecuting the prisoner, or for services provided to the prisoner in connection with his punishment. The Legislature has provided for the imposition of financial assessments covering a broad range of such services.

For example, a court may, pursuant to RCW 9.94A.145(2), require a prisoner to pay for the cost of incarceration at a rate set by statute. RCW 9.94A.270(1) authorizes the sentencing court to require that an offender being placed on probation pay a monthly assessment to the Department of Corrections in partial or full payment of the cost of providing probation supervision services. Under RCW 10.01.160(2), the court may require a convicted defendant to pay costs incurred by the state in prosecuting the defendant, or in administering the deferred prosecution program. RCW 10.64.120(1) allows judges to levy upon misdemeanants a monthly assessment for evaluation or supervision services provided by the misdemeanant probation department.

By specifying in such detail the elements of the sentences ‑‑ and in particular, the types of financial assessments -- that may be imposed on persons convicted of state crimes, the Legislature has demonstrated its intent to occupy the field of establishing those sentences. Therefore, we conclude that a county may not impose a multiple booking fee on a person convicted of a state crime -- that is, a crime charged under a state statute.

Our reasoning does not, however, extend to the imposition of a multiple booking fee on a person convicted of a county offense ‑‑ that is, an offense charged under a county ordinance. As discussed above, counties may establish local offenses and a range of sentences for those who perpetrate them. Subject to certain limitations, that range could include a fee for multiple booking to be imposed on persons convicted of local offenses and sentenced to serve time in the county jail on intermittent days.

In establishing a multiple booking fee as part of a sentence for a county offense, a county still must be mindful of the limitations of its powers under various constitutional provisions.[4] First, as discussed above, article 11, section 11 of the Washington Constitution prohibits a county from enacting an ordinance that conflicts with the general laws of the state, either because the Legislature has preempted the field or because the ordinance "permits or licenses that which the statute forbids and prohibits, [or] vice versa". Bellingham v. Schampera, 57 Wn.2d at 111.

Second, a county considering an ordinance authorizing a court to impose a multiple booking fee as part of a criminal sentence should heed constitutional considerations relating to the offender's ability to pay the fee. Some statutes providing for the repayment of costs incurred on behalf of a criminal defendant, also known as recoupment statutes, have been challenged as unconstitutional. The courts generally have upheld these statutes, provided that they contain certain safeguards. As set forth inFuller v. Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974), and summarized inState v. Earls, 51 Wn. App. 192, 195-96, 752 P.2d 402 (1988), the safeguards are:

(1) The requirement of repayment must not be mandatory;

(2) Repayment may be imposed only upon convicted defendants;

(3) Repayment may only be ordered if the defendant is or will be able to pay;

(4) The financial resources of the defendant must be taken into consideration;

(5) A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;

(6) The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion thereof;

(7) The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.

See alsoState v. Barklind, 87 Wn.2d 814, 817-18, 557 P.2d 314 (1976).

The thrust of these criteria, of course, is that a convicted person's ability to pay costs must be considered. AlthoughFuller was concerned with a statute providing for the repayment of appointed counsel fees, its holding has been extended to other court costs -- including investigative costs and service of process, filing, jury, and witness fees. SeeState v. Earls, 51 Wn. App. at 197. We believe that it would apply as well to costs of incarceration, including booking, for which reimbursement is ordered as part of a criminal sentence.

Recent decisions from the state court of appeals suggest that the rule ofFuller is satisfied if the offender's indigency is taken into consideration at the time of enforced collection of any unpaid court ordered costs. State v. Baldwin, 63 Wn. App. 303, 310-11, 818 P.2d 1116 (1991); State v. Curry, 62 Wn. App. 676, 682, 814 P.2d 1252 (1991). The court inCurry, for example, stated that if contempt proceedings were brought against an offender for failure to pay court ordered costs, his constitutional rights would be sufficiently protected because the contempt statute defines contempt as "intentional" disobedience of a court order. Id. An offender who lacked the ability to pay the court ordered costs could therefore argue that his disobedience was unintentional. If successful, the offender would avoid sanction.

Any multiple booking fee ordinance adopted by a county must make allowance for the rule ofFuller, whether by incorporating the safeguards described in that opinion or by otherwise permitting the offender to avoid paying the fee if he is unable by reason of indigency to do so.

Whether a particular county ordinance establishing an offense and the range of sentences for its commission would conflict with the general laws or implicate constitutional questions, of course, must be determined on a case-by-case basis. We simply conclude that a county may adopt an ordinance authorizing the imposition of a multiple booking fee as a part of the sentence for a county offense, provided that doing so is consistent with constitutional constraints and would not conflict with general laws on the subject.

We trust that the foregoing will assist you.

Very truly yours,

CHRISTINE O. GREGOIRE
Attorney General

TANYA BARNETT
Assistant Attorney General

[1]A county that wanted to enable the court to prescribe a multiple booking fee as an element of the sentence for the commission of a county offense would have to enact an ordinance so stating. Courts have no inherent authority to require the payment of costs, but must find such authority in a legislative enactment. Pierce Cy. v. Magnuson, 70 Wash. 639, 641, 127 P. 302 (1912); State v. Sizemore, 48 Wn. App. 835, 839, 741 P.2d 572, review denied (1987).

[2]Our opinion discusses the circumstances under which a court could impose a multiple booking fee as one component of a prisoner's sentence. While we conclude that courts may not in all cases assess these fees, we wish to make clear that such fees may be assessed only by courts, and not by sheriffs. Sheriffs may exercise only those powers that have been delegated to them by statute. State ex rel. Taylor v. King Cy. Superior Court, 2 Wn.2d 575, 580, 98 P.2d 985 (1940). We are aware of no statute that expressly, or by implication, confers on sheriffs the authority to impose on prisoners multiple booking fees.

[3]We assume that the multiple booking fee you inquire about would be imposed only on prisoners who requested, or at least acquiesced in, their intermittent sentences. In such cases, the prisoner presumably would benefit from the arrangement, and thus could legitimately be ordered to bear some or all of the additional administrative cost occasioned by it. Were the fee to be imposed for the convenience of the county rather than that of the prisoner, however, we believe the fee could be viewed as a revenue raising measure, in the nature of a tax. Counties cannot impose taxes without specific statutory authority. See, e.g., Dore v. Kinnear, 79 Wn.2d 755, 758, 489 P.2d 898 (1971). No such authority exists for a multiple booking fee. Thus, we do not believe that counties may assess such a fee for the purpose of raising revenue.

[4]We note that the equal protection clauses of both the United States and Washington Constitutions prohibit the state from enacting legislation that "prescribes different punishments or different degrees of punishment for the same act committed under the same circumstances by persons in like situations". In re Olsen v. Delmore, 48 Wn.2d 545, 550, 295 P.2d 324 (1956). Because counties derive their authority from the state, the county and state are considered one entity for purposes of determining whether the equal protection clause has been violated. Seattle v. Hogan, 53 Wn. App. 387, 390, 766 P.2d 1134 (1989); State v. Mason, 34 Wn. App. 514, 518, 663 P.2d 137 (1983). Therefore, a county would not be permitted to enforce an ordinance prescribing a different penalty for the commission of a county offense than is prescribed under state law for the same criminal act.

In most cases, this limitation should have no effect on a county's imposition of a multiple booking fee. This is because the fee, as we understand it, is not intended to be punitive. Rather, it would be assessed solely to reimburse the county for the additional costs incurred in allowing the prisoner to serve his sentence on intermittent days. As long as the county did not impose punishment in the guise of a fee -- which might be inferred, for example, if the amount of the fee greatly exceeded the reasonable costs of providing multiple booking services -- then we do not believe a county would run afoul of the equal protection clause by assessing a multiple booking fee on a prisoner convicted of a county offense that was identical to a state crime.