The Iowa Supreme Court yesterday decided State v. Gross, a decision resulting from an Arson in the Second Degree criminal conviction in the State of Iowa. In Gross, the Court decided only the issue of whether jail fees for all the time he spent in jail pending trial should be subject to the "reasonable ability to pay" rule pursuant to the restitution statute and the Albright line of restitution cases.

Writing for the Court, Justice Mansfield noted that the Sheriff's option to seek restitution was express, giving jail administrators the option to "“choose to enforce the claim in the manner provided in chapter 626."

Justice Mansfield wrote:

"We must determine, in an instance when the sheriff does not include a request to include the jail fees claim within restitution, whether the district court is required to consider the defendant’s reasonable ability to pay in assessing correctional fees pursuant to Iowa Code section 356.7. In short, is recovery of jail fees under section 356.7 always subject to a reasonableability-to-pay screen or only when such fees are intentionally included in a restitution order?"

The Court examined the lengthy but recent precedential history of restitution under the Albright line of cases. It also noted that there was perhaps just one case that addressed jail fees under Chapters 356 and 626. It also examined the legislative history of Chapter 356, noting it was originally just a lien statute, but was later expanded to allow for fees.

The Court held that, where the Sheriff does not seek jail fees under the restitution statute, a reasonable-ability-to-pay inquiry is not required.

"This case, as we have held, involves an order with the effect of a civil judgment and not a criminal restitution order. "

The court noted that Gross defendant's appellate counsel raised neither a due process claim nor an argument that a civil judgment is subject to the same constitutional constraints as restitution. It left "for another day" those arguments in another case to later be decided.

Justice Wiggins concurred specially. He agreed with the outcome that the Sheriff chose to use the civil judgment statute instead of restitution. But he had several concerns. First, he was concerned about notice. His concurrence noted that the United States Supreme Court required agencies to give property back where they seize it without notice. The concurrence wonders aloud whether the order is voidable if it is without proper notice. The concurrence also expressed concerns that counties may be garnishing wages improperly for these fees and also that they might be seeking them outside the statute of limitations for doing so. Finally, the concurrence questions earnestly asks whether seeking such fees must comply with the Iowa's debt collection protection act.

NOTE: David A. Cmelik Law PLC had no involvement in the Gross case.

If you or a loved one have been arrested for DUI (OWI) or other criminal offense in Cedar Rapids, Iowa City, or other Iowa community, contact David A. Cmelik Law PLC for a free initial consult. Remember, however, that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.

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