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Constitutionality Of County Probation Remains A Question

The Idaho Association of Counties has sent a memo to its members in the wake of media coverage first reported by the GUARDIAN, advising them not to panic when it comes to handling misdemeanor probation programs.

Counties are being advised by the association director, Dan Chadwick, “At this point, it is my advice to the counties to NOT change anything in the county systems.”

Good advice, but Chadwick offers them a glimmer of hope with an argument from a Kootenai County civil case which claims “adult probation” as mentioned in the constitution refers only to felony cases. That argument has not bee ruled upon by the high court.

He tells member counties the interpretation “passed constitutional muster” in the Allied Bail Bonds Kootenai case. Sort of. The district court ruling on the use of credit cards for bond granted a motion by the county to dismiss the case in part based on the claim by Allied that the county operated probation system was unconstitutional. District Court decisions do NOT have precedent.

In fact, NO appeals court has ruled on the constitutionality of county probation programs. During an appeal to the Supremes this summer, the issue was withdrawn at oral argument and the court specifically declined to address that point of constitutional law.

Comments & Discussion

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  1. I can hear the doors slamming in the political and bureaucrat offices all the way over to the next valley. An enterprising lawyer could follow this right back to the people who signed the contract. I bet they have a whopper of an insurance policy.

  2. When you say “During an appeal to the Supremes this summer, the issue was withdrawn at oral argument and the court specifically declined to address that point of constitutional law.” do you have any links to further information? I’ve never heard of this going before “the Supremes” and would like to see a little more background to substantiate your claim.

    EDITOR NOTE–The Case was ALLIED BAIL BONDS vs KOOTENAI COUNTY. The case is 2011 Opinion No. 81 found on the Supreme Court Opinion website.

  3. http://www.isc.idaho.gov/opinions/sccivil.htm

    Issued 8 July.

    The opinion says only that the argument was abandoned at argument, so the Supremes skipped over it. As a general rule, an appellate court addresses only the issues the parties raise and does not go looking to solve issues that are not in dispute.

    The briefing submitted to the court would contain the specific argument that was made before Allied gave up on it.

  4. I thought the Supremes were a R & B group in the 70’s

  5. At least one judge has tabled a probation violation in recognition of the possible unconstitutionality of the probation system in place here in Ada County.

    I don’t think this eliminates probation violations entirely. A court likely has an inherent authority to allow probation, either unsupervised or supervised through reviews with the sentencing judge. If you violated something the court specifically ordered – classes, fines, jail, etc. – that would still be a violation of the terms the court imposed.

    If you have a PV pending, raise the following issues with your attorney or court appointed attorney. Note that these are potential defenses and a defense doesn’t avoid the PV warrant. I’ll address that at the end.

    =============================
    TIME LIMTS.
    Most judgments don’t impose a time limit for completing a class, or enrolling in the class. If you have 12 months of probation and 16 hours of class, NOTHING says you must complete it in 4 months. You aren’t on notice of the time limit. The prosecutor cannot just make up a time limit.

    And if your PV is just about a class, you probably have enough time after your arrest and before your hearing to complete the class. Get into the class. Being in the class is also a reason for the judge NOT to put you in jail. Does not work all the time, however.

    =============================
    INTENTIONAL? WILLFUL?
    “If a knowing and intentional probation violation has been proved, a district court’s decision to revoke probation will be reviewed for an abuse of discretion. However, if a probationer’s violation of a probation condition was not willful, or was beyond the probationer’s control, a court may not revoke probation and order imprisonment without first considering alternative methods to address the violation. Sanchez, 149 Idaho 102 (2009) (quoting Leach, 135 Idaho 525, 529 (Ct.App.2001)).

    With the state of the economy, this comes up with anything that requires money. Fines. Classes. UAs. (Really do not try this with UAs because it will look like you are hiding stuff. On a PV, a judge likely can order you to UA when you come to court and if you are hot, you better have your toothbrush with you.)

    With a fine agreement, pay what you can. If the monthly payment is $50 and you have $30, pay the $30. If you pay nothing, that isn’t good. Borrow money if you can. Your Aunt can’t put you in jail but the judge CAN.

    Classes implicate money and time limits. If you did the class but they won’t give you proof because you haven’t paid, that is BS. Tell your attorney because they can issue a subpoena to the facility. If this was court ordered and you did it and the contract requires them to notify the court or probation, and they fail, in theory you might have a civil action against them for breach of contract. If you get arrested – that’s an injury for which might have a remedy in civil court. The cost of your surety bond would be an injury also. (This might apply if the class is the ONLY allegation. If you also skipped out on SILD, you have problems.)

    If your PV is about money, don’t pick up a DUI when you are on probation. A DUI normally means you spent your money on gas and booze instead of fines and class. Don’t show up to court with a new tattoo or having your nails done yesterday. (And cover up those tattoos. Women, cover up your boobs, please.)

    =============================
    DID THE JUDGE ORDER IT?
    There is a disconnect between the judgment and the terms and conditions of probation. In theory, if the judge didn’t order it, you don’t have to do it. If the judge didn’t ORDER UAs and if the judge didn’t ORDER you to cooperate with ACMPS’s terms, then an allegation might not be true.

    =============================
    WARRANT FOR PV?

    Idaho Criminal Rules 4 (new charges) and 5.3 (probation violations). ICR establishes a preference for a summons, in an initial prosecution. ICR 5.3 is specific to PVs and does not contain such preference. It does refer to ICR 4, however, and it seems completely reasonable that the preference in ICR 4 should apply equally in ICR 5.3. A common duty of anyone on probation is to notify the court of your address.

    If you have a warrant you MIGHT try writing to the court and requesting a summons and quashing the warrant. Or file something when you move so the court knows your address. The potential downside is that if they issue a warrant they’ll know your address.

    One of the things the prosecutors and courts are doing is issuing warrants for PVs for not paying court fines. You owe the court $250 and it costs $200 to bail out or you wait for your PV hearing 6 weeks down the road. Does that make ANY sense?

    I am not providing anyone with legal advice. As first indicated, share these issues with your own attorney.

  6. Thanks for the info Publica. My advice to people in lieu of this information is definately contact your attorney about the constitutionally of Misd. Probation. If none of your complaints have gotten through to the commissioners maybe this will open their eyes that something needs done about that office.

  7. Well I guess I should thank Rick and Vern for sticking their heads in the sand and not doing anything about this probation office sooner after the MANY issues that were unveiled. Thank you for what could potentially turn into the biggest traffic jam in the misdemeanor courts Idaho’s ever seen and in the BIGGEST county in Idaho no less.
    If you had given these people any credence before maybe they wouldn’t of felt they needed to find other alternatives to get Nancy out of her cash cow business.
    Sharon, any idea on how many probation violations could now be in limbo and what the cost could potentially be to tax-payers?

  8. Educated Woman
    Oct 16, 2011, 5:00 am

    Sharon and others: Follow the money… I wonder if Ms. Cladis was a donor to Vern B or Rick’s campaigns. Maybe she raised money for them. Maybe that is why this has been under the radar and went unnoticed for so long. I hope the former employees are able to sue for harassment – hostile workplace. Not good to be out of a job these days. Hope they find work – takes alot of guts to do what they did.

  9. ex employee...
    Oct 17, 2011, 10:14 am

    I have many converstations on tape with her “yelling” at me almost to the point of hitting me. I even asked if that is what she was going to do. Myself and many other former ACMPS employees have been asked on many occasions “who do you think you are” “GOD”!! Which I also have her on tape asking me. We have spoken to a attorney and all have brought our “pearl harbor” files and we will see what happens!! It really does take allot of guts to come forward! We were all in a VERY hostile work inviroment it is almost like a abusive marriage!! It was very odd to see her email come out saying she loves each and everyone of her employees!! I’m sure they were all wondering where that came from…

  10. Former Employee
    Oct 17, 2011, 1:51 pm

    I am another former employee at ACMPS (this is my first comment here, although I’ve been tracking this carefully), and I am happy to see some of my former colleagues doing what they can do be of assistance in this whole thing. I’ve made myself available to Commissioner Ullman as well as the various reporters that have been covering this story. I agree with the statements about that office being a hostile work environment, which is putting it mildly. Kudos to you, ex employee, for recording your encounters with Nancy.

    A lot of people assume this uproar is just a bunch of irate former employees and criminals pissed off about “getting what they deserve.” The vast majority of my clients were hard working people that were just trying to recover from some bad decisions. No one deserves to be treated like how Nancy handles her staff and clients. Period. I don’t have much at stake here, and I am not some enraged former employee. I left my position in relatively good standing with the majority of the office, and I moved on. I just sincerely hope this gets resolved. Nancy’s staff and the probationers that are forced to deal with her policies deserve better than what they have.

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