This guest post was submitted by Fargo-based attorney Mark Friese.
Senate Bill 2304 would allow cities to impose traffic fines which exceed state law limits by one hundred percent. Observers and commentators have rightfully criticized this proposal as “policing for a profit.”
But even more offensive, the proposal would subject cities to lawsuits, and motorists to disparate and unconstitutional treatment.
The Senate approved SB 2304, and when considered by the House, it was amended before passing. Accordingly, because the measure must be reconciled before final passage, lawmakers have time to do it right.
At the outset, as a matter of policy, I fully agree that North Dakota traffic fines are far too low. I agree with the proposition that doubling them is a good start. I cannot however agree that traffic tickets should be twice as costly if issued by a city police officer versus a state trooper or county deputy. Practically, this subjects city police officers to criticism, while correspondingly minimizing the perceived value of work of county and state law officers.
In North Dakota, sheriff’s deputies have full jurisdiction in cities within their county. State patrol troopers have full jurisdiction to enforce traffic regulations on roadways, including those within city limits. In legal parlance, city police, deputies, and state patrol troopers have concurrent jurisdiction to enforce traffic laws within cities. But only city officers may issue citations for city ordinance violations.
There are hundreds of possible traffic violations under North Dakota law. Most are replicated by identical city ordinances. There are several dozen which regulate state interests, like possessing a current state-issued driver’s license, displaying current state-issued vehicle registration, and the multitude of various equipment violations.
If this measure passes, a motorist driving with expired registration tabs would receive a $40 ticket if issued by a city police officer, but a $20 ticket if issued by a county or state officer. So, for the exact same violation, committed at the exact same location, the ticket would cost twice as much simply because it was issued by a city officer.
This is unfair.
This is unconstitutional.
In 2007, several of my law partners and I sued the City of Fargo for imposing fines in excess of state law limits. In the years preceding the lawsuit, Fargo refused to respond to my written requests, asking that they desist from imposing fees in excess of state law limits. We sued. After years of litigation and hundreds of thousands of dollars in refunded fines, costs, and fees, the matter was resolved.
Central to our lawsuit was the constitutional principle of equal protection, defined as “a direction that all persons similarly situated should be treated alike.” The North Dakota Supreme Court has said “[w]hen two statutes prohibit the same conduct but result in different penalties a person suffering the more serious penalty has been denied equal protection of the laws.” Frey v. State, 509 N.W.2d 261 (N.D. 1993). Likewise, our high court has cited out-of-state legal decisions noting equal protection is denied where a city ordinance punishes conduct more severely than state law for an identical offense.
In two prior cases, based on equal protection principles, the North Dakota Supreme Court has expressly held that city penalties may lawfully differ from state law penalties, but only if the city penalty is lesser than the state. Sauby v. City of Fargo, 2008 ND 60, 747 N.W.2d 65; City of Fargo v. Little Brown Jug, 468 N.W.2d 392 (N.D.1991).
In addition to being unconstitutional, this proposal fails to consider impacts on other related statutes. Chapter 39-06.1 of the North Dakota Century Code provides procedures for processing traffic violations. These procedures apply to city and state courts. The procedures provide a driver may post a bond within 14 days of the violation, and then may appear to contest the citation or alternatively forfeit the bond. This bill fails to modify N.D.C.C. § 39-06.1-02(4), which says “The bond required to secure appearance must be identical to the statutory fee established by” state law.
So, if passed, cities could arguably impose fines in twice the amount permitted under state law, but could require motorists to post only the state limit—i.e., one half the amount. A motorist in turn could forfeit half the amount, waiving hearing.
Equally, the Legislature did not adequately consider N.D.C.C. § 40-05.1-06, which states state law may be superseded only with respect to “local and city matters.” Licensing, assessment of demerit points, uniform application of traffic law, and regulation of this nature is a matter of statewide concern. For this reason, we do not allow cities to license motor vehicles or drivers. If fines and penalties for city traffic violations are not actually statewide concerns, some suggest that this proposal would disallow the Department of Transportation from assessing license demerit points or imposing license suspensions for city offenses, because the city violations would no longer be “equivalent,” as required by law.
There are at least two ways to fix this measure. First, lawmakers could raise the fines statewide, preserving the limited authority of cities to impose differing penalties, but only if the penalty is lesser. I favor this option. It makes sense. Why should it cost a driver $40 for expired registration tabs if ticketed in city limits, but only $20 outside city limits? Uniformly increasing fines statewide reduces rightful criticism of policing for a profit, shields individual city police from criticism, and recognizes equality of state and county officers. Most importantly, it is constitutional.
Secondly, the law could be amended to prohibit state and county law enforcement officers from enforcing traffic regulations in the corporate limits of cities which have fines that exceed state law limits. This arguably resolves the equal protection problem because all motorists within a particular city would then face the same fines. But because this would require sworn county and state officers to refrain from taking enforcement action for observed violations, most, including me, disfavor it.
Since 2007, in every legislative session, there have been efforts to allow cities to impose traffic fines exceeding state law limits. In each session, amendments to ensure constitutionality, including limiting authority of county and state officers in city limits, have resulted in ultimate failure.
Lawmakers have time to fix SB2304. If they do not, the Governor ought to veto it. And if he declines, cities attempting to impose fines in excess of state law limits will undoubtedly face legal challenges in court. Our police, our cities, and our citizens deserve better.