Directive # 02-10 Authorizing Municipal Courts to Provide Payment Alternatives Implementation of L. 2009, c. 317

Directive # 02-10 Authorizing Municipal Courts to
Provide Payment Alternatives Implementation of L. 2009, c. 317
Date: March 2, 2010
Legislation authorizing municipal courts to provide payment alternatives was
enacted effective January 18, 2010. L. 2009, c. 317. This memorandum is intended to
provide the municipal courts with guidance on implementation of that enactment.
Establishment of a Time-Payment Order
L. 2009, c. 317 (emphasis added) provides that “if a municipal court finds that a
person does not have the ability to pay a penalty in full on the date of the hearing . . . ,
the court may order the payment of the penalty in installments for a period of time
determined by the court.” Thus, for the court to establish a time-payment plan under
this statute, the municipal court judge is required to first make a finding that the
defendant is unable to pay the full amount on the date of the hearing.
By memorandum of November 20, 2003 directed to Municipal Court judges, then
Administrative Director Richard Williams indicated that the “Financial Questionnaire to
Establish Indigency - Municipal Courts” (Financial Questionnaire) should be used “in
determining the indigency status of defendants . . . for payment of fines in installments.”
That policy remains unchanged. A completed Financial Questionnaire will contain the
financial information that a judge needs in order to be able to make a reasoned decision
Directive # 02-10
Directive # 02-10
Implementation of L. 2009, c. 217
(Payment Alternatives)
March 02, 2010
Page 2
as to whether the defendant has an ability to pay a penalty in full or whether to grant
defendant a time payment.
Additionally, judges also should continue to follow the long-established practice
of considering the federal poverty guidelines as one factor in determining whether a
defendant has the ability to pay fines and penalties in full on the day of the hearing. The
most recently distributed guidelines (copy attached) suggest in that regard that
defendants earning up to 250% of the federal poverty guidelines be considered for timepayment
orders. Updated guidelines for 2010 will be issued by this office in the spring.
Payment Alternatives After Default
The new statute also includes provisions to cover the situation where an
individual defaults on a previously ordered time-payment because the individual does
not have the ability to pay. In those situations the court is provided a number of options.
The statute specifically provides as follows:
If a person defaults on any payment and a municipal court
finds that the defendant does not have the ability to pay, the
court may:
(1) reduce the penalty, suspend the penalty, or modify
the installment plan;
(2) order that credit be given against the amount owed for
each day of confinement, if the court finds that the
person has served jail time for the default;
(3) revoke any unpaid portion of the penalty, if the court
finds that the circumstances that warranted the
imposition have changed or that it would be unjust to
require payment;
(4) order the person to perform community service in lieu
of payment of the penalty; or
(5) impose any other alternative permitted by law in lieu
of payment of the penalty. [L. 2009, c. 317, § 1.]
The two situations in which a defendant shall be considered to be in default are (a) if
defendant’s driver’s license has been suspended after a failure to pay (N.J.S.A. 2B:12-
31(a)(2)), or (b) if a warrant has been issued for defendant’s arrest after a failure to pay.
These payment alternatives may only be used under this statute after a
defendant defaults on an already established time-payment order. They may not be
used at a defendant’s initial sentencing hearing. Moreover, the court may resort to the
payment alternatives only after a finding that the defendant does not have the ability to
pay. Just as when determining whether to establish a time-payment order, a
Directive # 02-10
Implementation of L. 2009, c. 217
(Payment Alternatives)
March 02, 2010
Page 3
determination of ability to pay should be based on the financial information on a current
Financial Questionnaire completed by the defendant. Also as with time-payment order
determinations, the judge in determining ability to pay should consider, as one factor,
whether defendant’s income is less than 250% of the federal poverty guidelines (again,
see the attachment).
In addition, these payment alternatives may not be used to reduce, revoke or
suspend payment of restitution or of the $250 surcharge assessed for operating a
vehicle in an unsafe manner under N.J.S.A. 39:4-97.2(f). L. 2009, c. 317, § 1.
With specific regard to the court’s ability to revoke the unpaid portion of the
penalty (subsection 3 above), a judge before implementing this particular alternative
must make one of two additional findings. The judge must find either that “the
circumstances that warranted the imposition [of the penalty] have changed” or that it
would be unjust to require defendant to pay. The judge must place on the record the
facts upon which these findings are based. See R. 1:7-4(a).
If a judge wishes to implement a payment alternative for only a portion of the
outstanding balance, then the judge should merely designate the lump sum dollar
amount that is to be reduced, revoked or suspended, without indicating which individual
fines, penalties or assessments are to be affected. For example, a judge could order
that defendant’s time-payment order is reduced by $100. The judge should not specify
that $50 is reduced from VCCO and $50 from the fine. Any future payment of the
remaining portion of the penalty will be disbursed consistent with N.J.S.A. 2C:46-4.1.
As with all changes of sentence, the implementation of any of the payment
alternatives must be made in open court on notice to the defendant and the prosecuting
attorney. R. 7:9-4.
Any questions regarding this directive should be directed to Assistant Director
Debra A. Jenkins, Municipal Court Services Division, at 609-984-8241.
G.A.G.
attachment
cc: Chief Justice Stuart Rabner
AOC Directors and Assistant Directors
Lawrence Walton, Municipal Court Services Division
Steven Somogyi, Municipal Court Services Division
Carol A. Welsch, Municipal Court Services Division
Steven D. Bonville, Special Assistant
Francis W. Hoeber, Special Assistant
2009
Income Eligibility Guidelines for Establishing Time Payments
Data reflect 250% of the Federal poverty guidelines as defined by the U.S. Department of Health and Human Services
* If the household size exceeds eight, add $9,350.00 gross income per year, $779.17
per month, or $179.81 per week for each additional member of the household.
Source data:
Poverty Guidelines updated by the U.S. Department of Health and Human Services,
published in the Federal Register, Vol. 74, No.14, January 23, 2009, pp. 4200.
Household Size One Two Three Four Five Six Seven Eight
Annual Gross
Income
$27,075.00
$36,425.00
$45,775.00
$55,125.00
$64,475.00
$73,825.00
$83,175.00
$92,525.00
Monthly Gross
Income
$ 2,256.25
$ 3,035.42
$ 3,814.58
$ 4,593.75
$ 5,372.92
$ 6,152.08
$ 6,931.25
$ 7,710.42
Weekly Gross
Income
$ 520.67
$ 700.48
$ 880.29
$ 1,060.10
$ 1,239.90
$ 1,419.71
$ 1,599.52
$ 1,779.33
As distributed by May 14,
2009 memo from the
Administrative Director.