04-041-O

ORDINANCE NO. __________

AN ORDINANCE AUTHORIZING THE CHARGING OF FEES FOR PARTICIPATION IN DULUTH JUSTICE AND DEFERRAL PROGRAM.

BY COUNCILOR LITTLE:

The city of Duluth does ordain:

Section 1. That Duluth City Code, 1959, as amended, is amended to add a new Section 2-18 to Chapter 2, Article III, to read as follows:

Sec. 2-18.1. Findings and purpose of pre-charge deferral.

The city council finds that the goal of law enforcement is to attain voluntary compliance with the laws, rules, and regulations to which each member of the community is subject; that city agents have used various methods and procedures to attain this goal, including meetings, notices, conciliation, mediation, community education, civil penalties, criminal prosecution, probation, stays of adjudication, diversion, pre-charge deferral and others; that procedures other than criminal prosecution have historically been used in all of the city's enforcement activities, and that these procedures have been successful; that the practice of community policing relies upon enforcement procedures other than criminal prosecution; that many individuals who violate laws or regulations can be educated and motivated to comply by a procedure that is more contractual, faster, efficient, and less cumbersome than the criminal justice system; that in every case of enforcement of a law or regulation, the enforcement officer must exercise discretion to decide what procedure is the most likely to achieve justice and compliance; that the city has had decades of successful use of pre-charge deferral of many types of offenses, including traffic offenses; that the purpose of this section is to formalize procedures for pre-charge deferral, to authorize fees to be charged to participants in the Duluth justice and deferral program, a pre-charge deferral procedure, and to efficiently secure justice and voluntary compliance with law, which will improve the quality of the community.

Sec. 2-18.2. Deferral authorized; fees.

Subject to management and supervision, and applicable laws and standards, city officials and agents who enforce laws and regulations are authorized to utilize a procedure of pre-charge deferral, but only in compliance with state and federal civil rights laws and the city's anti-discrimination policy, in instances where the circumstances indicate that justice and compliance can better be attained by deferral than by issuing a criminal charge. The administration is authorized to set standards and procedures for the use of pre-charge deferral. Any pre-charge deferral program must be voluntary. The city is authorized to charge each participant a reasonable fee for participation, the amount of the fee to be set by resolution of the city council. The city's human rights officer shall monitor the program for compliance with civil rights standards.

Section 2. That this ordinance shall take effect and be in force 30 days after its passage and publication.


STATEMENT OF PURPOSE:  The city has experienced some changes in its legal enforcement environment. Due to budget changes at the state and county level, the program by which offenders work off the fine (community service) has been curtailed or ended. Various charges and fee increases have increased the cost of filing an action. The transition of the district court from county to state operation has raised the issue of whether our violations bureau contract with the county is advantageous. The new state court operation may not even want to operate a violations bureau for the city. State surcharges have raised the payment that traffic and misdemeanor offenders must pay, so that now a simple speeding offense costs over $100 and a seatbelt violation is over $60. The amount the city pays for prisoners brought to the county jail has increased. In many situations, officers now question whether a ticket should issue because the penalty is disproportionate to the offense. Long delays in processing misdemeanor matters through court, and the labor intensive function of prosecution, have raised a significant issue of whether the city can afford to seek justice through the court system.

The purpose of the city's enforcement actions is to accomplish compliance with the law. Historically, the city has used different methods and procedures to attain this goal, depending upon the context of the enforcement effort.

In zoning matters, several visits, meetings, and letters are used. As a last resort, a civil action will be commenced, or a criminal violation ticket will issue. Either of these events is very rare, because the letters and conferences almost always attain compliance.

A similar approach is used in housing code and building code enforcement. The several inspectors note thousands of violations each year, which are initially addressed administratively, as set out above. Because the administrative procedures work, it is rare that a criminal ticket is issued. We have had a similar experience with utility matters, where fee collection is the typical dispute. In liquor code and other regulatory enforcement, the city distributes guidelines and standards, inspects, confers with violators, and occasionally imposes civil, administrative penalties. Issuance of a criminal citation is rare, because the other efforts are usually successful in gaining compliance.

Even though police have long used administrative measures, such as "fix-it" tickets for equipment violations, the city police more often use the criminal system to achieve compliance with traffic, property, and violent crimes of the misdemeanor class. City police and prosecutors are authorized to enforce state traffic laws by M.S.A. Sec. 169.04(a). We believe this law authorizes them to use discretion in whether to charge, warn, divert, or defer a matter. Many question whether the criminal system is efficient in gaining compliance with law. It is legalistic, slow, expensive, and sometimes byzantine in its process. To many, it appears that it requires a lot of resources to utilize the criminal justice system. To many, there exists an issue of whether the system accomplishes justice. For example, some offenders are so incorrigible that their incarceration is the only way the public can be protected, yet they are released. For most offenders, some education, some intervention will achieve correction, yet they face elaborate procedures and the threat of jail time.

The Duluth police department, several years ago, undertook an alternative approach to achieve compliance with the law. It is called community policing. It involves policies whereby the police use their discretion in how to enforce the law to pursue some longer range, more efficient, techniques to mold behavior toward voluntary compliance. This model of enforcement is more akin to the methods used by other city enforcement officials than it is to the traditional court-oriented system that police have used.

For years, the law and the courts have recognized the procedure of "stay of adjudication" as an alternative to litigating criminal matters. The law and the courts also recognize and use diversion programs as a technique, and procedure, for law enforcement. As long ago as the 1970's, marijuana violators were diverted into a fee charging drug education program. The city, through its city council, has authorized a diversion program for those who write bad checks within the city. This program is administered by a consultant that operates state-wide. In these systems, an individual is diverted away from the penal system, and into another experience, as a means of attaining future compliance with the law. County prosecutors are required to consider diversion in many cases, and it is commonly used. In an order dated January 5, 2004, the Minnesota Supreme Court requested that the League of Cities examine the use of pre-trial diversion in every criminal case, so that the number of cases in the courts can be managed.

Because of the current circumstances, and the city's positive experience with code enforcement that doesn't use the criminal system, and with diversion, it is now time to change much of our police enforcement to a community based, civil, administrative, quicker, more efficient process; one that allows our highly trained police and enforcement agents to make the highest societal use of their discretion in whether to charge, and whether to arrest. This new, administrative system, will attain compliance with the law and justice while requiring less public resources. It is called Duluth Justice and Deferral Program (DJD).

The foundation of the new DJD system is a transaction between the community (acting through a city enforcement officer) and a citizen who has been identified as having violated a regulation. In the transaction, the officer, who has great discretion to decide what type of enforcement action to take, commits to using his discretion to forego the penal, criminal process in favor of a community sponsored behavior modification method. The other side of the transaction is that the violator commits to learning and performing an act of restoration, including paying part of the cost of administering the transaction. In the normal situation when a violator has been identified, this system gives the officer three options for enforcement: release without action, DJD, criminal system.

Offenses and Standards

The event that triggers the use of the DJD program is a person's violation of a law, ordinance, rule, or regulation. The standard for determining whether a violation has occurred is the same standard that is used throughout the nation for criminal matters - probable cause. Duluth's officers are trained in the probable cause standard, use it every day, and will not need any new training in order to utilize this correct standard.

The DJD program will not be available for felonies, gross misdemeanors, or offenses for which a criminal conviction requires registration as a sex offender. It will be available for all ordinance violations, petty misdemeanors, and misdemeanors, except those (if any) that the administrative assistant and prosecuting agency (city attorney) exclude from the program. The role of the prosecuting agency, which is established by law, the criminal rules, and convention will not change. In any case, the prosecutor can commence criminal prosecution. In any case, the prosecutor can use whatever procedures, including DJD, that the law allows for processing a case. DJD is always subject to legal review by the prosecuting agency. An enforcement officer can commence DJD for any offense, subject to prosecutor or supervisor's authority to cancel it. If an offense is initially charged as a crime, by citation, arrest, or other means, then only the prosecuting authority could divert the matter to DJD. The use of DJD must be non-discriminatory. It must be in compliance with the city's anti-discrimination policy and state and federal civil rights laws. The city's human rights officer will monitor this.

The basic standard for referral of a matter to DJD is that justice will be better attained under the DJD program. The city council (by ordinance), the city administration, and the prosecuting authority can each create more specific standards for the basis of the decision to use DJD. The following are some of the factors involved in the decision:
1. The offender is not an habitual violator, and/or shows evidence that participation will lead to rehabilitation and future compliance with law.
2. The enforcement officer concludes that the major cause of the violation is the offender's ignorance of the law and/or the benefits of compliance.
3. The minor nature of the violation indicates that deferral will be efficient for the community because future compliance can be attained without burdening the court system.

In order to avoid the appearance of coercion, the violator will not be asked to decide whether to enter DJD. The decision to use it is made only by the enforcers, based upon the above standards.

Officers Involved - Time for Action

The city officials that can refer a matter to DJD are the following:
1. the enforcement officer;
2. the manager or supervisor of the city enforcement agency;
3. the prosecuting authority.

The enforcement officer can invoke DJD at any time after he or she determines probable cause and before any criminal charge is made.

The manager or supervisor can cause DJD to be invoked through the exercise of authority through the chain of command, and, with the approval of the prosecutor, after a criminal charge has been initiated.

The prosecutor can initiate DJD at any time after probable cause has been determined.

The police are not the only enforcement officers. Building safety, fire, parks, city clerk (licensing), and others all have official enforcement roles and duties. Most use an administrative procedure as their most common method of enforcement. Each department will want to deliberate about whether it will formalize its practice so as to closely follow DJD procedures (including issuing the DJD notice to offenders and the setting of program fees). The mayor and administrative assistant may have opinions about whether any particular division should adapt a DJD method. The implementation of these opinions is a matter of administrative policy and inherent management policy.

The Procedural Steps

The following is a typical sequence of events in a police officer's use of DJD:
1. Officer is trained in community policing and the department's DJD system.
2. Officer observes a misdemeanor violation (speeding) and apprehends the offender.
3. Officer observes the circumstances, obtains relevant information (such as driving record) and applies the information to standards to determine if DJD or criminal citation should issue.
4. Officer decides DJD is the appropriate enforcement method.
5. Officer informs the offender that DJD will be used, advises offender that it is an administrative program which is designed to lessen the burden on the offender while increasing the likelihood of future compliance.
6. Officer gives offender: a) The DJD notice and promise, and program fee statement; and b) the traffic safety handout.
7. Officer explains the high points of the safety handout and importance of compliance for safety of all. Officer explains that the DJD program fee is due and owing, that offender has promised to pay it, and that it can be paid as set out in the notice and promise. Any concerns can be addressed as set out in the DJD notice.
8. Offender is concerned that the radar malfunctioned. Rather than pay by mail, offender goes to the designated place (police desk) and asks for a conference.
9. The police agent explains how the radar is tested each day. The offender is satisfied and pays the fee. The offender is given a copy of the dispute conference record form.

or;

10. Alternative action. If the offender is dissatisfied, and refuses to participate or if the police agent concludes that the DJD is not working, or probably will not, then the agent writes a criminal citation, and gives it, and the copy of the dispute conference record form, to the offender, explaining that now a regular ticket has been issued.

Parking

1. The city, along with the parking commission, determines the places, times, and types of offenses that are most likely to benefit from DJD. Educational handout is produced.
2. Enforcement officer finds a violation.
3. Officer determines which method, parking ticket or DJD notice, to use.
4. Offenders who do not pay on schedule are sent a parking ticket. Offenders who appear for a conference are issued a ticket and advised to deal with the court.

Records

The city will maintain records of DJD notices similar to the state data base, so that multiple or aggravated offenders will be known to the officers. The human rights officer will monitor these to assure compliance with civil rights laws.

Collection

The program fees will be collected in the same manner as other bills owed to the city. No fee will be collected for offenses that ultimately are covered by a criminal ticket. A drop box will be established at a convenient location.