TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: January 12, 2018
RE: Rule 32.2, N.D.R.Crim.P., Pretrial Diversion
Staff Attorney Lindsey Nieuwsma recently addressed questions from court staff about "non-standard" fees being imposed in criminal cases, especially in cases involving pretrial diversion agreements. She concluded that fees not allowed by statute could not be processed through Odyssey and she instructed court staff not to accept these fees.
Ms. Nieuwsma identified specific types of unauthorized fees, such as pretrial diversion program fees, victim/witness program fees in excess of $25, and fees dedicated to a specific local program as problematic. She instructed court staff that, if a payment agreed to under a plea agreement or pretrial diversion agreement does not fit within an authorized category, payment will require coordination between the agreed-upon recipient and the defendant and will not go through the court system.
The information gathered by Ms. Nieuwsma suggests that people formulating pretrial diversion agreements are interpreting the language in Rule 32.2(a)(2)(D) allowing the defendant to be required to pay "specified fees or costs" as giving the parties to a diversion agreement free reign to require the defendant to pay fees that may not be authorized by law. For example, Ms. Nieuwsma found one case where a $500 "victim/witness fee" was assessed.
The committee may wish to discuss whether this is a legitimate application of Rule 32.2. Proposed amendments are attached to amend Rule 32.2(a)(2)(D) to limit imposition of fees and costs only to those "allowed by law."