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Beating Outlandish Fines and Penalties

It’s a sunny day. You and your spouse are driving the back roads, enjoying the scenery, experiencing small town life. The music scores your perfect drive. Then, of a sudden your reverie is interrupted with flashing blue lights in the rear-view mirror. You pull over. You are in Dogpatch City and you’ve just been stopped by the Dogpatch police. After going through the ritual of handing over your documents you are handed a citation, for $250. The citation states you were clocked at 30 mph in a 25 mph zone. You groan and ask the officer if he’s serious. “Take it up with the judge next week if you disagree,” is the perfunctory response. What to do? You’ve broken the law, and you’re stuck.

You operate a clinic treating injured workers. The clinic has treated patients under the state labor and industries program for a dozen years with no complaints and no disagreements with the State. One day you receive a letter from the Department: you have not followed the technical requirements for billing and reporting, and you owe back to the Department every dime you’ve ever been paid for years, with interest. This must be a mistake. You contact the Department and lo’, your billing and reporting practices are indeed inconsistent with the regulations. But you cannot hope to pay a forfeiture of $750,000 to the State. What to do? You’ve violated the regulations, and you’re stuck.

You have been driving across the I-520 floating toll bridge for months. You are not a subscriber to Good To Go, but don’t mind the pay-by-mail option. Except it’s been three months and you haven’t gotten a bill. Well, they’ll get around to it sooner or later, and you’ll pay then. One day the letter comes. You owe several hundred dollars in penalties for failing to pay a grand total of $25 in tolls. What to do? You haven’t paid your tolls, and you’re stuck.

Or are you stuck?

The U.S. Constitution, 8th Amendment prohibits cruel and unusual punishment. The state constitution likewise prohibits the infliction of cruel punishment. Everyone knows about these prohibitions. But not everyone knows that both the federal and state provisions also prohibit the imposition of “excessive fines.” Can these provisions be applied to defend against fines, forfeitures or penalties which are outlandish? Actually, they can in the appropriate case.

If the charge is at all punitive in nature or constitutes a forfeiture, courts have held it is governed by the prohibition of excessive fines. In Austin v. United States, 509 U.S. 602 (1993), the U.S. Supreme Court identified the issue as whether the forfeiture is monetary punishment, with which the Excessive Fines Clause is particularly concerned. Because sanctions frequently serve more than one purpose, “a forfeiture that [also] serves remedial goals will not exclude it from the Clause’s purview”, when it “can only be explained as serving in part to punish.” (quoting United States v. Halper, 490 U.S. 435 (1989)).

The Supreme Court has identified a two-pronged test for determining the unconstitutional excessiveness of fines. In United States v. Bajakajian, 524 U.S. 321 (1998), the Court characterized a forfeiture as constitutionally excessive when it is not instrumental in committing a wrongful act and is grossly disproportional to the gravity of the offense in question. The Court refused to enforce a statute that unambiguously called for a forfeiture in the event of a violation, which violation was found to have occurred. The forfeited property in that case was money. The Court said that the offense “was solely a reporting offense.” The Court explained that the failure to report affected only the government, and in a relatively minor way. It found that there was no fraud on the Government and “no loss to the public fisc.”

Put another way, the first question we must ask is whether the charge constitutes, even in part, punishment. The second question is related to forfeitures: is the forfeiture unrelated to the offense. For example, if a person suffers the forfeiture of a suitcase of money but only because its removal from the U.S. was not reported (the Bakajian situation), the forfeiture is unconstitutional. Third, we ask if the fine or forfeiture is “grossly disproportional” to the gravity of the offense. $250 for five miles over the limit is pushing the envelope.

There may also be frosting on this proverbial cake. If it is determined that there has been a constitutional rights violation as a result of the imposition of a grossly disproportionate fine, then the governmental entity imposing the fine may be held liable for legal fees. See 42 U.S.C. §§ 1983, 1988:

“Every person who, under color of any statute, . . . regulation . . . of any State . . . subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights . . . secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.” [42 U.S.C. § 1983]


“In any action or proceeding to enforce a provision of sections . . . 1983 of this title, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, . . . .” [42 U.S.C. § 1988].

This may all be academic in the case of the $250 Dogpatch citation. But when the fine or forfeiture runs to six or even seven figures (as it did in a case we recently handled), then this esoteric but entirely sound legal approach to a defense may be the best bet for the client. And the worst nightmare for the punishing agency.