FARGO — An attorney who successfully fought the city of Fargo’s traffic fines in a 2007 lawsuit said Wednesday, Dec. 4, that the City Commission's recent move to increase fines is unconstitutional and will likely be challenged in court.
Mark Friese, an attorney at Vogel Law Firm in Fargo, said the city’s recently approved fine increases might technically be permitted by recently passed state law but will inevitably lead to challenges in court on the grounds that it violates equal protection clause of the Constitution.
“There’s no question this is going to be litigated at some point,” he said in an appearance on the Jay Thomas Show on WDAY Radio. “A lawyer will at some point take a case up once cities have banked money they’re probably not supposed to be banking.”
After a new state law permitting local governments to raise fines by up to 100% came into effect on Aug. 1, the Fargo City Commission on Nov. 18 voted unanimously to double fines for numerous traffic violations. Other cities in North Dakota, including Casselton and Mandan, are discussing similar measures and other cities such as Grand Forks have already raised fines.
Fargo’s increases included texting while driving from $100 to $200, failure to yield to a pedestrian from $50 to $100 and following too closely from $20 to $40. The change also adjusts the city’s current speeding ticket fee schedule.
The problem with the increases, Friese said, is that North Dakota sheriff’s deputies, state troopers and city police officers all have jurisdiction to enforce traffic laws within the city of Fargo, possibly leading to inconsistent ticketing in the same circumstances, violating the North Dakota and the United States Constitution.
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“The exact same violation occurring at the exact same location is going to have a higher fine just because it’s a city police officer issuing it rather than a state patrolman or a sheriff’s deputy,” he explained. “If two people who are similarly situated are treated differently — disparately — for no good reason it violates equal protection of the law.”
Friese was an attorney on a federal class-action suit brought against the city of Fargo by resident Stephanie Sauby in 2007 that alleged exactly that — the city of Fargo had violated the equal protection clause of the 14th Amendment to the Constitution by charging fines greater than those allowed by the state.
In 2009 a federal judge approved a settlement where the city of Fargo agreed to pay up to $1.5 million — though the city never admitted wrongdoing. More than 50,000 drivers got a letter in the mail informing them that they qualified, Forum News Service reported.
Possible constitutional issues aren't the only problem with changes to North Dakota's traffic ticket statute, according to Friese.
The Legislature may have changed state law to allow local governments to charge higher fees for traffic violations but overlooked a key loophole drivers could use to avoid fines.
When a driver is pulled over and ticketed, the fine is technically a form of bond, Friese explained. When a driver posts bond, he or she can choose to have a hearing.
But as the law currently stands, a driver is only required to post bond at the state law limit, Friese said, meaning that the driver could pay a ticket at the limit set by the state and forfeit their hearing, thereby allowing them to avoid the higher ticket fine imposed by the city.
The only way a driver could be forced to pay the city's ticket is by challenging the ticket in court and losing, he said.