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Failure to Pay Warants

Teresa Nowlin

Tue, Nov 17, 2020 2:27 PM

https://www.sos.ok.gov/documents/executive/1971.pdf

https://dingo.telicon.com/OK/library/2020/2020111696.PDF

So I don't think cities will be enforcing the mask mandate portion of the order.
From: Oama oama-bounces@lists.imla.org On Behalf Of Ray Vincent
Sent: Monday, November 16, 2020 3:55 PM
To: Jeff Bryant jbryant@omag.org; Matt Love matt.love@gmail.com; Rick Knighton Rick.Knighton@normanok.gov; Matt P. Cyran mcyran@rfrlaw.com; Jon Miller jonmiller@jem-pc.com; Robert Thompson rthompson@cheekfalcone.com; Daniel@oml.org
Cc: OAMA luistserv OAMA@lists.imla.org
Subject: Re: [Oama] Failure to Pay Warants

[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
What authority does cities have to enforce the Governor's mask mandate. Can bars be issued tickets?
Ray

Sent from my Sprint Samsung Galaxy Note9.

-------- Original message --------
From: Jeff Bryant via Oama <oama@lists.imla.org mailto:oama@lists.imla.org>
Date: 11/16/20 10:58 AM (GMT-06:00)
To: Matt Love <matt.love@gmail.com mailto:matt.love@gmail.com>, Rick Knighton <Rick.Knighton@normanok.gov mailto:Rick.Knighton@normanok.gov>, "Matt P. Cyran" <mcyran@rfrlaw.com mailto:mcyran@rfrlaw.com>, Jon Miller <jonmiller@jem-pc.com mailto:jonmiller@jem-pc.com>, Robert Thompson <rthompson@cheekfalcone.com mailto:rthompson@cheekfalcone.com>, Daniel@oml.org mailto:Daniel@oml.org
Cc: OAMA luistserv <OAMA@lists.imla.org mailto:OAMA@lists.imla.org>
Subject: Re: [Oama] Failure to Pay Warants

All:

Daniel and I talked about this some more on Friday, and Matt's email solidifies the core of our discussion. I apologize for "shooting from the hip". As with any legal question, it is always helpful to clearly define the question that is being asked before you provide an answer.

My take on the question was not focused on "failure to pay" or "ability to pay", as certainly the Rule 8 discussions we have had with our Municipal Judges over the last several years would then be implicated and need to be handled accordingly . Constitutionally, we do not allow debtor prison.

My take on the question was whether an individual can offer to pay with cash for another person's fines, costs, and fees arising from municipal charges AND set conditions on that payment with the court. Again, I don't think a payee, who is not a bail bondsman (if we were talking about bail) gets to post a cash bond for a defendant and in doing so gets to bargain with the court and set conditions on when the cash bond can be forfieted.

However, I may have read too much into the question. The question was stated as:

"I have a situation where a man was arrested on municipal failure to pay warrants. His son bonded him out in the amount of his debt. Typically, we would forfeit the bond to apply that money to the debt. Here, however, the son says he does not want to apply his money to pay his father's debt. What are your thoughts about whether or not the City can forfeit that money in light of the son's objection? If the City cannot do that, I fear this will be a revolving door."

I think all the input from this question has been good, depending on how you read the question. So, maybe I should have slowed down to make sure I fully understood the question or more accurately stated what my perception of the question asked.

I interpreted the "failure to pay" to be "failure to appear". I interpreted "the amount of the debt" to be "the amount of the fines, cost, and fees imposed by the municipal court". I understood the "son bonded him out in the amount of his debt" to be "a third person (not a licensed bondsman) providing cash to the defendant to post an appearance bond in the amount of the costs, fines, and fees to secure his presence for a future hearing date". The son's bargaining with the court as a condition for him loaning or providing his money for his father's use seemed inappropriate.

That is a lot of "reading into the question", which I probably should have taken a step to clarify before "shooting from the hip". With 32 years of law practice, I know better than to assume too much into questions. I am not being critical of the question, just critical of myself for not seeking additional clarification of what was being asked. I apologize if I have created confusion in the discussion on this thread.

I did find it interesting regarding the Norman Municipal Court approach shared with us by Rick Knighton. The Deputy Court clerk appears to have recognized the ambiguity in the question and tried to answer both scenarios:

Seeing as it's time to pay, it's not "bond", it's fines/costs, and will be receipted as such when we receive it here in the office. We do not receipt money as bond when it is TTP warrant.

When the money posted is a pre-conviction bond, she recalls occasions when the court has returned the bond to the third-party and given the defendant time to pay.

I hope this adds some clarity to the discussion. What a great medium to share ideas and discussion. Thanks OAMA for providing this service and thanks to all of you who chime in when you have chance to do so.

Jeff Bryant

OMAG's COVID-19 Info Page: https://www.omag.org/covid19-faq

Jeff H Bryant
Director of Legal Services
Associate General Counsel
jbryant@omag.org mailto:jbryant@omag.org

[OMAG Small Logo Smooth]
3650 S. Boulevard
Edmond, Oklahoma 73013
Phone: 405-657-1419
Fax: 405-657-1401
www.omag.org https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.omag.org%2F&data=02%7C01%7Cksesock%40omag.org%7C7b0af7708d2145459d0008d5d005912d%7Cb13aadd514d84b918cf485be9d556ad7%7C1%7C0%7C636643644718063768&sdata=O5U4CEM0kJLxSbEQIcdB%2BtRnRqcj9gWhJquY26D8F1o%3D&reserved=0

From: Matt Love <matt.love@gmail.com mailto:matt.love@gmail.com>
Sent: Monday, November 16, 2020 9:33 AM
To: Rick Knighton <Rick.Knighton@normanok.gov mailto:Rick.Knighton@normanok.gov>
Cc: Jeff Bryant <jbryant@omag.org mailto:jbryant@omag.org>; Matt P. Cyran <mcyran@rfrlaw.com mailto:mcyran@rfrlaw.com>; OAMA luistserv <OAMA@lists.imla.org mailto:OAMA@lists.imla.org>
Subject: Re: [Oama] Failure to Pay Warants

To echo and expand on what has already been said - classifying the jailing as being for Failure to Pay could likely be Constitutionally problematic. The Equal Protection clause is violated when Government jails a person solely for failing to pay fines/costs due if the Court has not made a finding prior to jailing the person that the failure to pay was willful (i.e. that they had the ability to pay but simply did not do so). See Williams v. Illinois, 399 U.S. 235 (1970), Tate v. Short, 401 U.S. 395 (1971), Bearden v. Georgia, 461 US. 660 (1983) and McGee v. City of Oklahoma City, 1988 OK CR 173.

In Turner v. Rogers, 564 U.S. 431 (2011) the Court outlined the procedural requirements to follow to make a determination prior to jailing a person for failure to pay. A hearing should be set with notice given to the Defendant that his ability to pay will be the issue at the hearing. A form or a functional equivalent should be used to elicit information about the Defendant's ability to pay (financial condition). A hearing should then be held on the issue, followed by an express finding by the Court on the Defendant's ability to pay.

Oklahoma has adopted the framework for these ability to pay hearings via Rule 8 (specifically Rule 8.1 to 8.8 - all contained in Chapter 18, Section VIII of Title 22; see also 22 O.S. 983).

What some cities do is preemptively set a Rule 8 hearing as part of their time pay agreement. When someone does not make their payment AND does not show up for the hearing, then they issue a bench warrant. The warrant isn't because of the failure to pay. The warrant is because they did not comply with the terms of their timepay by failing to show up in Court for their Rule 8 hearing when they didn't pay. It allows the warrant to be better styled - instead of "Failure to Pay" it's "Failure to Comply". It also allows the City to be faithful to the Equal Protection case law as well as Rule 8 itself.

My understanding is that the latest update to E.O. requires all state employees and persons on state property to wear masks while at work, and places statewide restrictions on restaurants and bars. See paragraphs 24, 25 and 26 in the Executive Order below. https://www.sos.ok.gov/documents/executive/1971.pdf https://dingo.telicon.com/OK/library/2020/2020111696.PDF So I don't think cities will be enforcing the mask mandate portion of the order. From: Oama <oama-bounces@lists.imla.org> On Behalf Of Ray Vincent Sent: Monday, November 16, 2020 3:55 PM To: Jeff Bryant <jbryant@omag.org>; Matt Love <matt.love@gmail.com>; Rick Knighton <Rick.Knighton@normanok.gov>; Matt P. Cyran <mcyran@rfrlaw.com>; Jon Miller <jonmiller@jem-pc.com>; Robert Thompson <rthompson@cheekfalcone.com>; Daniel@oml.org Cc: OAMA luistserv <OAMA@lists.imla.org> Subject: Re: [Oama] Failure to Pay Warants [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. What authority does cities have to enforce the Governor's mask mandate. Can bars be issued tickets? Ray Sent from my Sprint Samsung Galaxy Note9. -------- Original message -------- From: Jeff Bryant via Oama <oama@lists.imla.org<mailto:oama@lists.imla.org>> Date: 11/16/20 10:58 AM (GMT-06:00) To: Matt Love <matt.love@gmail.com<mailto:matt.love@gmail.com>>, Rick Knighton <Rick.Knighton@normanok.gov<mailto:Rick.Knighton@normanok.gov>>, "Matt P. Cyran" <mcyran@rfrlaw.com<mailto:mcyran@rfrlaw.com>>, Jon Miller <jonmiller@jem-pc.com<mailto:jonmiller@jem-pc.com>>, Robert Thompson <rthompson@cheekfalcone.com<mailto:rthompson@cheekfalcone.com>>, Daniel@oml.org<mailto:Daniel@oml.org> Cc: OAMA luistserv <OAMA@lists.imla.org<mailto:OAMA@lists.imla.org>> Subject: Re: [Oama] Failure to Pay Warants All: Daniel and I talked about this some more on Friday, and Matt's email solidifies the core of our discussion. I apologize for "shooting from the hip". As with any legal question, it is always helpful to clearly define the question that is being asked before you provide an answer. My take on the question was not focused on "failure to pay" or "ability to pay", as certainly the Rule 8 discussions we have had with our Municipal Judges over the last several years would then be implicated and need to be handled accordingly . Constitutionally, we do not allow debtor prison. My take on the question was whether an individual can offer to pay with cash for another person's fines, costs, and fees arising from municipal charges AND set conditions on that payment with the court. Again, I don't think a payee, who is not a bail bondsman (if we were talking about bail) gets to post a cash bond for a defendant and in doing so gets to bargain with the court and set conditions on when the cash bond can be forfieted. However, I may have read too much into the question. The question was stated as: "I have a situation where a man was arrested on municipal failure to pay warrants. His son bonded him out in the amount of his debt. Typically, we would forfeit the bond to apply that money to the debt. Here, however, the son says he does not want to apply his money to pay his father's debt. What are your thoughts about whether or not the City can forfeit that money in light of the son's objection? If the City cannot do that, I fear this will be a revolving door." I think all the input from this question has been good, depending on how you read the question. So, maybe I should have slowed down to make sure I fully understood the question or more accurately stated what my perception of the question asked. I interpreted the "failure to pay" to be "failure to appear". I interpreted "the amount of the debt" to be "the amount of the fines, cost, and fees imposed by the municipal court". I understood the "son bonded him out in the amount of his debt" to be "a third person (not a licensed bondsman) providing cash to the defendant to post an appearance bond in the amount of the costs, fines, and fees to secure his presence for a future hearing date". The son's bargaining with the court as a condition for him loaning or providing his money for his father's use seemed inappropriate. That is a lot of "reading into the question", which I probably should have taken a step to clarify before "shooting from the hip". With 32 years of law practice, I know better than to assume too much into questions. I am not being critical of the question, just critical of myself for not seeking additional clarification of what was being asked. I apologize if I have created confusion in the discussion on this thread. I did find it interesting regarding the Norman Municipal Court approach shared with us by Rick Knighton. The Deputy Court clerk appears to have recognized the ambiguity in the question and tried to answer both scenarios: Seeing as it's time to pay, it's not "bond", it's fines/costs, and will be receipted as such when we receive it here in the office. We do not receipt money as bond when it is TTP warrant. When the money posted is a pre-conviction bond, she recalls occasions when the court has returned the bond to the third-party and given the defendant time to pay. I hope this adds some clarity to the discussion. What a great medium to share ideas and discussion. Thanks OAMA for providing this service and thanks to all of you who chime in when you have chance to do so. Jeff Bryant OMAG's COVID-19 Info Page: https://www.omag.org/covid19-faq Jeff H Bryant Director of Legal Services Associate General Counsel jbryant@omag.org<mailto:jbryant@omag.org> [OMAG Small Logo Smooth] 3650 S. Boulevard Edmond, Oklahoma 73013 Phone: 405-657-1419 Fax: 405-657-1401 www.omag.org<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.omag.org%2F&data=02%7C01%7Cksesock%40omag.org%7C7b0af7708d2145459d0008d5d005912d%7Cb13aadd514d84b918cf485be9d556ad7%7C1%7C0%7C636643644718063768&sdata=O5U4CEM0kJLxSbEQIcdB%2BtRnRqcj9gWhJquY26D8F1o%3D&reserved=0> From: Matt Love <matt.love@gmail.com<mailto:matt.love@gmail.com>> Sent: Monday, November 16, 2020 9:33 AM To: Rick Knighton <Rick.Knighton@normanok.gov<mailto:Rick.Knighton@normanok.gov>> Cc: Jeff Bryant <jbryant@omag.org<mailto:jbryant@omag.org>>; Matt P. Cyran <mcyran@rfrlaw.com<mailto:mcyran@rfrlaw.com>>; OAMA luistserv <OAMA@lists.imla.org<mailto:OAMA@lists.imla.org>> Subject: Re: [Oama] Failure to Pay Warants To echo and expand on what has already been said - classifying the jailing as being for Failure to Pay could likely be Constitutionally problematic. The Equal Protection clause is violated when Government jails a person solely for failing to pay fines/costs due if the Court has not made a finding prior to jailing the person that the failure to pay was willful (i.e. that they had the ability to pay but simply did not do so). See Williams v. Illinois, 399 U.S. 235 (1970), Tate v. Short, 401 U.S. 395 (1971), Bearden v. Georgia, 461 US. 660 (1983) and McGee v. City of Oklahoma City, 1988 OK CR 173. In Turner v. Rogers, 564 U.S. 431 (2011) the Court outlined the procedural requirements to follow to make a determination prior to jailing a person for failure to pay. A hearing should be set with notice given to the Defendant that his ability to pay will be the issue at the hearing. A form or a functional equivalent should be used to elicit information about the Defendant's ability to pay (financial condition). A hearing should then be held on the issue, followed by an express finding by the Court on the Defendant's ability to pay. Oklahoma has adopted the framework for these ability to pay hearings via Rule 8 (specifically Rule 8.1 to 8.8 - all contained in Chapter 18, Section VIII of Title 22; see also 22 O.S. 983). What some cities do is preemptively set a Rule 8 hearing as part of their time pay agreement. When someone does not make their payment AND does not show up for the hearing, then they issue a bench warrant. The warrant isn't because of the failure to pay. The warrant is because they did not comply with the terms of their timepay by failing to show up in Court for their Rule 8 hearing when they didn't pay. It allows the warrant to be better styled - instead of "Failure to Pay" it's "Failure to Comply". It also allows the City to be faithful to the Equal Protection case law as well as Rule 8 itself.

O'Meilia, David

Tue, Nov 17, 2020 2:52 PM

David E. O'Meilia | City Attorney
City of Tulsa Legal Department
175 East 2nd Street; Tulsa, OK 74103
T: 918-596-7717
F: 918-596-9700
E: domeilia@cityoftulsa.org mailto:domeilia@cityoftulsa.org
www.cityoftulsa.org http://www.cityoftulsa.org/

From: Oama oama-bounces@lists.imla.org On Behalf Of Teresa Nowlin
Sent: Tuesday, November 17, 2020 8:27 AM
To: Ray Vincent CityAttorney@choctawcity.org; Jeff Bryant jbryant@omag.org; Matt Love matt.love@gmail.com; Rick Knighton Rick.Knighton@normanok.gov; Matt P. Cyran mcyran@rfrlaw.com; Jon Miller jonmiller@jem-pc.com; Robert Thompson rthompson@cheekfalcone.com; Daniel@oml.org
Cc: OAMA luistserv OAMA@lists.imla.org
Subject: Re: [Oama] Failure to Pay Warants

https://www.sos.ok.gov/documents/executive/1971.pdf https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.sos.ok.gov%2Fdocuments%2Fexecutive%2F1971.pdf&data=04%7C01%7Cdomeilia%40cityoftulsa.org%7C6a8ee6bb9c5b4747d8cd08d88b05008a%7C79d58ae020484d8c9c598b1b7dfb4204%7C0%7C1%7C637412200907275957%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=SJtxzsGPgE8pIwVDqZootU0vSBkGfX6oVr9YprHDRsE%3D&reserved=0

https://dingo.telicon.com/OK/library/2020/2020111696.PDF https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fdingo.telicon.com%2FOK%2Flibrary%2F2020%2F2020111696.PDF&data=04%7C01%7Cdomeilia%40cityoftulsa.org%7C6a8ee6bb9c5b4747d8cd08d88b05008a%7C79d58ae020484d8c9c598b1b7dfb4204%7C0%7C1%7C637412200907280932%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=OBY61LqrmZYyt5JFKdVER6utbD%2FlT55xLashh7bJkts%3D&reserved=0

So I don't think cities will be enforcing the mask mandate portion of the order.
From: Oama <oama-bounces@lists.imla.org mailto:oama-bounces@lists.imla.org> On Behalf Of Ray Vincent
Sent: Monday, November 16, 2020 3:55 PM
To: Jeff Bryant <jbryant@omag.org mailto:jbryant@omag.org>; Matt Love <matt.love@gmail.com mailto:matt.love@gmail.com>; Rick Knighton <Rick.Knighton@normanok.gov mailto:Rick.Knighton@normanok.gov>; Matt P. Cyran <mcyran@rfrlaw.com mailto:mcyran@rfrlaw.com>; Jon Miller <jonmiller@jem-pc.com mailto:jonmiller@jem-pc.com>; Robert Thompson <rthompson@cheekfalcone.com mailto:rthompson@cheekfalcone.com>; Daniel@oml.org mailto:Daniel@oml.org
Cc: OAMA luistserv <OAMA@lists.imla.org mailto:OAMA@lists.imla.org>
Subject: Re: [Oama] Failure to Pay Warants

Sent from my Sprint Samsung Galaxy Note9.

All:

However, I may have read too much into the question. The question was stated as:

Seeing as it's time to pay, it's not "bond", it's fines/costs, and will be receipted as such when we receive it here in the office. We do not receipt money as bond when it is TTP warrant.

When the money posted is a pre-conviction bond, she recalls occasions when the court has returned the bond to the third-party and given the defendant time to pay.

Jeff Bryant

OMAG's COVID-19 Info Page: https://www.omag.org/covid19-faq https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.omag.org%2Fcovid19-faq&data=04%7C01%7Cdomeilia%40cityoftulsa.org%7C6a8ee6bb9c5b4747d8cd08d88b05008a%7C79d58ae020484d8c9c598b1b7dfb4204%7C0%7C1%7C637412200907285911%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=1LnoLpUcJyOzgMtS9FtlwVSfVOd7DFbe41SYszFXN0s%3D&reserved=0

Jeff H Bryant
Director of Legal Services
Associate General Counsel
jbryant@omag.org mailto:jbryant@omag.org

[OMAG Small Logo Smooth]
3650 S. Boulevard
Edmond, Oklahoma 73013
Phone: 405-657-1419
Fax: 405-657-1401
www.omag.org https://gcc02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.omag.org%2F&data=04%7C01%7Cdomeilia%40cityoftulsa.org%7C6a8ee6bb9c5b4747d8cd08d88b05008a%7C79d58ae020484d8c9c598b1b7dfb4204%7C0%7C1%7C637412200907290888%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=QIISu5H468QDcN02ro2GUnS8t0uYuvqxYeWkK5gqeH0%3D&reserved=0

Oklahoma has adopted the framework for these ability to pay hearings via Rule 8 (specifically Rule 8.1 to 8.8 - all contained in Chapter 18, Section VIII of Title 22; see also 22 O.S. 983).

As to enforcement of the EO mandates re: restaurants and bars, it appears to me that the Oklahoma Office of Emergency Management would have to issue an order or regulation identical to the Governor's regarding closure of restaurants and bars, etc. in paragraphs 25 & 26 of the Governor's EO to make the order/regulation enforceable under the Oklahoma Emergency Management Act 63 O.S. 683.23. Next, police departments and/or the local Health Dept. would have to be able issue some kind of state citation, not a COT citation, for such a violation, and, then we would have to contact the DA's Office to ask if they would prosecute the misdemeanor if TPD or the Health Dept issued a state citation. A lot of "ifs" and I doubt anyone has thought that far down at the Gov's Office. David E. O'Meilia | City Attorney City of Tulsa Legal Department 175 East 2nd Street; Tulsa, OK 74103 T: 918-596-7717 F: 918-596-9700 E: domeilia@cityoftulsa.org<mailto:domeilia@cityoftulsa.org> www.cityoftulsa.org<http://www.cityoftulsa.org/> From: Oama <oama-bounces@lists.imla.org> On Behalf Of Teresa Nowlin Sent: Tuesday, November 17, 2020 8:27 AM To: Ray Vincent <CityAttorney@choctawcity.org>; Jeff Bryant <jbryant@omag.org>; Matt Love <matt.love@gmail.com>; Rick Knighton <Rick.Knighton@normanok.gov>; Matt P. Cyran <mcyran@rfrlaw.com>; Jon Miller <jonmiller@jem-pc.com>; Robert Thompson <rthompson@cheekfalcone.com>; Daniel@oml.org Cc: OAMA luistserv <OAMA@lists.imla.org> Subject: Re: [Oama] Failure to Pay Warants My understanding is that the latest update to E.O. requires all state employees and persons on state property to wear masks while at work, and places statewide restrictions on restaurants and bars. See paragraphs 24, 25 and 26 in the Executive Order below. https://www.sos.ok.gov/documents/executive/1971.pdf<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.sos.ok.gov%2Fdocuments%2Fexecutive%2F1971.pdf&data=04%7C01%7Cdomeilia%40cityoftulsa.org%7C6a8ee6bb9c5b4747d8cd08d88b05008a%7C79d58ae020484d8c9c598b1b7dfb4204%7C0%7C1%7C637412200907275957%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=SJtxzsGPgE8pIwVDqZootU0vSBkGfX6oVr9YprHDRsE%3D&reserved=0> https://dingo.telicon.com/OK/library/2020/2020111696.PDF<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fdingo.telicon.com%2FOK%2Flibrary%2F2020%2F2020111696.PDF&data=04%7C01%7Cdomeilia%40cityoftulsa.org%7C6a8ee6bb9c5b4747d8cd08d88b05008a%7C79d58ae020484d8c9c598b1b7dfb4204%7C0%7C1%7C637412200907280932%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=OBY61LqrmZYyt5JFKdVER6utbD%2FlT55xLashh7bJkts%3D&reserved=0> So I don't think cities will be enforcing the mask mandate portion of the order. From: Oama <oama-bounces@lists.imla.org<mailto:oama-bounces@lists.imla.org>> On Behalf Of Ray Vincent Sent: Monday, November 16, 2020 3:55 PM To: Jeff Bryant <jbryant@omag.org<mailto:jbryant@omag.org>>; Matt Love <matt.love@gmail.com<mailto:matt.love@gmail.com>>; Rick Knighton <Rick.Knighton@normanok.gov<mailto:Rick.Knighton@normanok.gov>>; Matt P. Cyran <mcyran@rfrlaw.com<mailto:mcyran@rfrlaw.com>>; Jon Miller <jonmiller@jem-pc.com<mailto:jonmiller@jem-pc.com>>; Robert Thompson <rthompson@cheekfalcone.com<mailto:rthompson@cheekfalcone.com>>; Daniel@oml.org<mailto:Daniel@oml.org> Cc: OAMA luistserv <OAMA@lists.imla.org<mailto:OAMA@lists.imla.org>> Subject: Re: [Oama] Failure to Pay Warants [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. What authority does cities have to enforce the Governor's mask mandate. Can bars be issued tickets? Ray Sent from my Sprint Samsung Galaxy Note9. -------- Original message -------- From: Jeff Bryant via Oama <oama@lists.imla.org<mailto:oama@lists.imla.org>> Date: 11/16/20 10:58 AM (GMT-06:00) To: Matt Love <matt.love@gmail.com<mailto:matt.love@gmail.com>>, Rick Knighton <Rick.Knighton@normanok.gov<mailto:Rick.Knighton@normanok.gov>>, "Matt P. Cyran" <mcyran@rfrlaw.com<mailto:mcyran@rfrlaw.com>>, Jon Miller <jonmiller@jem-pc.com<mailto:jonmiller@jem-pc.com>>, Robert Thompson <rthompson@cheekfalcone.com<mailto:rthompson@cheekfalcone.com>>, Daniel@oml.org<mailto:Daniel@oml.org> Cc: OAMA luistserv <OAMA@lists.imla.org<mailto:OAMA@lists.imla.org>> Subject: Re: [Oama] Failure to Pay Warants All: Daniel and I talked about this some more on Friday, and Matt's email solidifies the core of our discussion. I apologize for "shooting from the hip". As with any legal question, it is always helpful to clearly define the question that is being asked before you provide an answer. My take on the question was not focused on "failure to pay" or "ability to pay", as certainly the Rule 8 discussions we have had with our Municipal Judges over the last several years would then be implicated and need to be handled accordingly . Constitutionally, we do not allow debtor prison. My take on the question was whether an individual can offer to pay with cash for another person's fines, costs, and fees arising from municipal charges AND set conditions on that payment with the court. Again, I don't think a payee, who is not a bail bondsman (if we were talking about bail) gets to post a cash bond for a defendant and in doing so gets to bargain with the court and set conditions on when the cash bond can be forfieted. However, I may have read too much into the question. The question was stated as: "I have a situation where a man was arrested on municipal failure to pay warrants. His son bonded him out in the amount of his debt. Typically, we would forfeit the bond to apply that money to the debt. Here, however, the son says he does not want to apply his money to pay his father's debt. What are your thoughts about whether or not the City can forfeit that money in light of the son's objection? If the City cannot do that, I fear this will be a revolving door." I think all the input from this question has been good, depending on how you read the question. So, maybe I should have slowed down to make sure I fully understood the question or more accurately stated what my perception of the question asked. I interpreted the "failure to pay" to be "failure to appear". I interpreted "the amount of the debt" to be "the amount of the fines, cost, and fees imposed by the municipal court". I understood the "son bonded him out in the amount of his debt" to be "a third person (not a licensed bondsman) providing cash to the defendant to post an appearance bond in the amount of the costs, fines, and fees to secure his presence for a future hearing date". The son's bargaining with the court as a condition for him loaning or providing his money for his father's use seemed inappropriate. That is a lot of "reading into the question", which I probably should have taken a step to clarify before "shooting from the hip". With 32 years of law practice, I know better than to assume too much into questions. I am not being critical of the question, just critical of myself for not seeking additional clarification of what was being asked. I apologize if I have created confusion in the discussion on this thread. I did find it interesting regarding the Norman Municipal Court approach shared with us by Rick Knighton. The Deputy Court clerk appears to have recognized the ambiguity in the question and tried to answer both scenarios: Seeing as it's time to pay, it's not "bond", it's fines/costs, and will be receipted as such when we receive it here in the office. We do not receipt money as bond when it is TTP warrant. When the money posted is a pre-conviction bond, she recalls occasions when the court has returned the bond to the third-party and given the defendant time to pay. I hope this adds some clarity to the discussion. What a great medium to share ideas and discussion. Thanks OAMA for providing this service and thanks to all of you who chime in when you have chance to do so. Jeff Bryant OMAG's COVID-19 Info Page: https://www.omag.org/covid19-faq<https://gcc02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.omag.org%2Fcovid19-faq&data=04%7C01%7Cdomeilia%40cityoftulsa.org%7C6a8ee6bb9c5b4747d8cd08d88b05008a%7C79d58ae020484d8c9c598b1b7dfb4204%7C0%7C1%7C637412200907285911%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=1LnoLpUcJyOzgMtS9FtlwVSfVOd7DFbe41SYszFXN0s%3D&reserved=0> Jeff H Bryant Director of Legal Services Associate General Counsel jbryant@omag.org<mailto:jbryant@omag.org> [OMAG Small Logo Smooth] 3650 S. Boulevard Edmond, Oklahoma 73013 Phone: 405-657-1419 Fax: 405-657-1401 www.omag.org<https://gcc02.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.omag.org%2F&data=04%7C01%7Cdomeilia%40cityoftulsa.org%7C6a8ee6bb9c5b4747d8cd08d88b05008a%7C79d58ae020484d8c9c598b1b7dfb4204%7C0%7C1%7C637412200907290888%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=QIISu5H468QDcN02ro2GUnS8t0uYuvqxYeWkK5gqeH0%3D&reserved=0> From: Matt Love <matt.love@gmail.com<mailto:matt.love@gmail.com>> Sent: Monday, November 16, 2020 9:33 AM To: Rick Knighton <Rick.Knighton@normanok.gov<mailto:Rick.Knighton@normanok.gov>> Cc: Jeff Bryant <jbryant@omag.org<mailto:jbryant@omag.org>>; Matt P. Cyran <mcyran@rfrlaw.com<mailto:mcyran@rfrlaw.com>>; OAMA luistserv <OAMA@lists.imla.org<mailto:OAMA@lists.imla.org>> Subject: Re: [Oama] Failure to Pay Warants To echo and expand on what has already been said - classifying the jailing as being for Failure to Pay could likely be Constitutionally problematic. The Equal Protection clause is violated when Government jails a person solely for failing to pay fines/costs due if the Court has not made a finding prior to jailing the person that the failure to pay was willful (i.e. that they had the ability to pay but simply did not do so). See Williams v. Illinois, 399 U.S. 235 (1970), Tate v. Short, 401 U.S. 395 (1971), Bearden v. Georgia, 461 US. 660 (1983) and McGee v. City of Oklahoma City, 1988 OK CR 173. In Turner v. Rogers, 564 U.S. 431 (2011) the Court outlined the procedural requirements to follow to make a determination prior to jailing a person for failure to pay. A hearing should be set with notice given to the Defendant that his ability to pay will be the issue at the hearing. A form or a functional equivalent should be used to elicit information about the Defendant's ability to pay (financial condition). A hearing should then be held on the issue, followed by an express finding by the Court on the Defendant's ability to pay. Oklahoma has adopted the framework for these ability to pay hearings via Rule 8 (specifically Rule 8.1 to 8.8 - all contained in Chapter 18, Section VIII of Title 22; see also 22 O.S. 983). What some cities do is preemptively set a Rule 8 hearing as part of their time pay agreement. When someone does not make their payment AND does not show up for the hearing, then they issue a bench warrant. The warrant isn't because of the failure to pay. The warrant is because they did not comply with the terms of their timepay by failing to show up in Court for their Rule 8 hearing when they didn't pay. It allows the warrant to be better styled - instead of "Failure to Pay" it's "Failure to Comply". It also allows the City to be faithful to the Equal Protection case law as well as Rule 8 itself.