Wabasha County, located in SE Minnesota, faces a class action lawsuit over it’s now illegal safe driving program. Early estimates put the county on the hook for almost $500,000 dollars if it loses in court. (photo from en.wikipedia.org)
Wabasha County, Minnesota government is once again embroiled in controversy. The County created a Safe Driving Course back in 2003, and the legality of the model was questioned immediately. In January of 2014, Judge James Fabian of the Third District Court brought the program to a halt with a summary judgment.
Now, a class action civil lawsuit against the County has been filed on behalf of those who paid fees to take the class. The big question is: where does the money come from if the county loses the legal battle?
Wabasha County started the Safe Driving Course as a way for divers pulled over for minor moving violations to avoid large fines, a court appearance, and to keep the violation off their driving record. Although Wabasha created the program, at the time it was declared to be illegal, 36 cities and counties offered the program in similar formats.
The safe driving class had numerous concerns. Did the count have the legal authority to create and run the program? Most of the questions involved what happened to the money people had to pay to take the class. The original cost of the class was $75, and later was raised to $125.
In 2003, then-State Representative Steve Smith sent a letter of inquiry to the state Attorney General’s Office questioning the legality of a county program that “imposes administrative penalties upon person violating state laws and local ordinances.” The response from the AG’s Office was 7 pages long, and listed several ways the program was in violation of state laws.
One of the notable ways the program was in violation of state law was the discretionary behavior of law enforcement. Smith stated in his letter that local law enforcement officials were “holding tickets for certain traffic offenses to give drivers a chance to sign up for the Class. If the driver signed up for the class in time, the ticket was torn up.”
The response from Assistant AG Ken Raschke said, “Cities are empowered to regulate certain areas of local interest, and to supplement state statutes in many areas. However, local governments may not redefine the nature or level of criminal offense as specified by state statute, or modify statutory procedures for enforcement or penalties for an offense.”
Because the program was started at the city and county level, there was also some question as to whether or not local officials had the authority to make that decision. Raschke’s response answered the question by stating, “It is not consistent with state and public policy for local officials to direct or urge that city peace officers not enforce the law of the state to the best of their ability.”
Raschke did say that county officials and peace officers to have substantial discretion in making arrest and charging decisions.
“But, these decisions should be made on a case-by-case basis in terms of the evidence available, the culpability of the offender, and the nature of the offense, rather than the offender’s willingness to make a payment to the city,” he said.
In 2004, another letter from the State Auditor said, “This office believes the class is an effort to issue county penalties for traffic offenses that are regulated by State law. The State has entered the arena of traffic regulation through Chapter 169 of the Minnesota statues, and the county needs to use the uniform traffic ticket for violations of state traffic laws and adjudicate those violations through the state court system”
In other words, no holding of tickets, and no tearing them up once the drivers have taken the course. But the Safe Driving Class continued on.
The other question is what happened to the money drivers paid to take the class and avoid the court system?
In 2009, new legislation was enacted which required a person successfully completing a diversion program for a violation of Chapter 169 (Again, covering traffic violations) to pay a $75 surcharge. It laid out distribution of the proceeds as well: $65 was to go to the state general fund; $9.75 for the peace officer training account; and $0.25 to the game and fish fund.
During the early years of the program, Wabasha County was keeping all revenues from the Safe Driving Class. Even after the 2009 letter from the Office of Minnesota Management and Budget outlining the distribution of revenues, Wabasha County continued to keep all the money and sent nothing in to the state.
The warnings from state government continued through 2013. In August, a lawsuit was filed against Wabasha County over the Safe Driving program. The suit actually included 2 of Wabasha County’s Commissioners. The County response stated they felt it was a legal “diversion program.”
Third District Court Judge James Fabian issued an injunction, which stopped the program.
“State Statutes didn’t allow the program,” said Erick Kaardal, of the Mohrman, Kaardal, and Erickson Law Firm in Minneapolis, who represented the plaintiffs. “The concern was, rather than following through on a traffic ticket, they offered violators a chance to pay tuition to the class. The tuition money was going to the department’s budget, but ticket revenue was to be split between the state and the county.”
After the first suit was won, Kaardal and his firm represented plaintiffs who filed petitions to the court for tuition reimbursement. They filed for a class action suit statewide, but the Third District Court said no to that. The Court of Appeals then rejected a conditional review of the case.
“What was left open by the original district court,” said Kaardal, “was doing a suit county-by-county. So we’re representing plaintiffs on a countywide basis who want their tuition money back.”
He added, “Some of the early estimates indicate the refund amount my top $400,000 dollars in revenue.”
He said the goal was to stop county sheriffs from having a financial incentive to write tickets.
Wabasha County Sheriff Rodney Bartsch did end the program as soon as the injunction was granted. He felt the Safe Driving Program was a benefit to the county, and it was run as a legal diversion program.
Wabasha County Sheriff Rodney Bartsch tells a Minnesota House committee Tuesday, March 18, 2014, that the public likes the option of taking classes rather than pay tickets. (photo from republican-eagle.com)
“The lawsuit is about a personal vendetta,” said Bartsch. “It has nothing to do with right or wrong. We had over 4,500 people participate in the class over a ten-year period. Most said the education was of great value to them. For the plaintiffs to have found 8 people to come forward out of thousands doesn’t sound like much of a class action suit to me.”
Bartsch added, “What’s interesting to me is there are other similar programs across the state. Why aren’t they trying to shut those down?”
Kaardal said most of the other county programs were shut down after the Wabasha ruling came down.
“After we won in Wabasha,” said Kaardal, “most of the other counties shut down their programs. Based on our most recent information, Wright and Isanti counties continue their programs, and so we have continuing concerns there, but right now we’re focused on the class action suit in Wabasha County.”
Sheriff Bartsch said the ongoing dispute with the State Auditor shouldn’t have happened because he felt they didn’t have the authority to regulate what he classified as a “diversionary program.”
He said, “The County Attorney and I always had a different opinion than that of the state auditor. They never had any authority to interpret state statute. This was always considered a diversionary program.”
However, Kaardal feels this suit is supported by case law.
“There’s good case law that states if the county sheriff has money he obtained illegally, he should give it back,” he said. “It’s called Money Had and Received. It says if you illegally obtain money from a party, you have to give it back.”
Kaardal added, “For example, if I give you money thinking you’re a store clerk before goods are exchanged and you aren’t, you have to give it back. He obtained the money through an illegal program, and he needs to give it back. That’s just common sense.”
Kaardal said cases like this are disappointing to him on a personal level too.
“The great hope is that law enforcement officers would follow the law,” said Kaardal. “We should be disappointed when law enforcement officers violate the law, particularly here in such an official and deliberate way.”
However, Sheriff Bartsch said his Safe Driving Class was a diversion program that violated no laws. In his mind, this continues to be a personal vendetta.
“This is just a way to get people paid for their time that was invested in trying to destroy a few elected officials in Wabasha County,” said the Sheriff. I will continue to feel sorry for those people that wish harm on others.”
Bartsch added, “I won’t name any names, but this whole issue began after a county commissioner lost an election.”
Kaardal continues to insist this is not personal matter, but a clear violation of law.
He said, “The county sheriff has complied with the District Court injunction stopping the safe driving program, and I praise him for that. Now it’s time for the Sheriff to do what’s legally necessary and refund the money to the safe driving program participants. But, the County Sheriff is choosing not to give money back to the participants. However, if the Sheriff would choose to give the money back, I would praise him for that action too. The unfortunate consequence of the Sheriff’s decision is more litigation.”