There is an abundance of public-private partnerships these days.
For years, private contractors have provided visitors various services in the nation’s parks and monuments. There are highway projects and even airports that are built and maintained through such agreements.
The routine is that the contractors charge fees and then retain a portion while remitting the rest to the government.
The partnership often saves the government money, as private companies must be competitive to survive, producing the best results at the lowest cost.
However, there’s one public-private partnership that doesn’t quite follow that model.
In fact, a lawsuit challenges an agreement in which some California cities have contracted with a private law firm, Silver & Wright, to prosecute code violations.
It’s because the law firm, in addition to forcing defendants to pay fines for such things as allowing a chicken in a backyard ($225), bills the defendants for every second of time the lawyers spend prosecuting them.
For the chicken case, it was about $6,000.
The Institute for Justice filed the suit because California courts “have made it clear that it is illegal for prosecutors to have a direct financial stake in the cases they bring.”
In the prosecutions handled by the private law firm, which contracted with the city of Indio, members of the firm cash in directly when they take a case to court. And they cash in again if the defendant protests or appeals.
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It’s a class action lawsuit asking the California courts “to shut down Silver & Wright’s unconstitutional scheme,” the Institute for Justice said.
“No one should have a warrant out for their arrest and be forced to pay $6,000 to resolve a simple dispute about a few backyard chickens,” said Jeffrey Redfern, an attorney at the Institute for Justice, which represents Ramona Morales.
Morales was charged for allowing her tenants to have a few chickens.
“This could have been resolved with a simple phone call, but it wasn’t, in part, because Silver & Wright’s business model creates a perverse financial incentive to prosecute cases like Ramona’s in criminal court, rather than treat homeowners with goodwill,” Redfern contended.
Morales, IJ explained, has worked for most of her life cleaning houses and selling Avon makeup in California’s Coachella Valley. In 2015, after receiving a pair of confusing warnings, Ramona received a $75 citation in the mail from the city of Indio. It said that a city inspector noticed a chicken in the backyard of a home she rents out.
Silver & Wright, under contract, immediately went to criminal court, which meant that police issued a warrant for her arrest.
She told the court her tenants were confused about the legality of raising chickens in Indio and ultimately agreed to pay the nominal fine.
Then, Silver & Wright demanded $3,030 in fees for the private lawyers. She appealed and they billed her an additional $2,528.
“Ramona’s fight in Indio is only one of many prosecutions initiated by Silver & Wright. Starting in 2013, dozens of California cities began to hire the newly formed firm to, among other things, serve as official city prosecutor for code enforcement cases. The firm’s pitch was appealing. It offered ‘cost neutral or even revenue producing’ prosecution services, so long as the city changed its ordinances to allow the firm to directly bill property owners for its full attorneys fees, which range from $159 to $175 per hour,” IJ said.
“As a result, homeowners agreeing to pay small fines for minor code infractions were later billed thousands of dollars under the guise of ‘cost recovery’ by a law firm acting in an official capacity.”
The business model is set up to profit. If a property owner agrees to plead guilty and pay a fine, that person is billed by Silver & Wright for the prosecution. If the owner fights it, he is billed by Silver & Wright for the prosecution.
But the arrangement creates a “perverse” profit incentive for the prosecutors, who personally benefit from the defendants, IJ said.
“As we’ve seen in so many other areas of law, perverse financial incentives have no place in the justice system,” said IJ Attorney Josh House. “Government prosecutors have a duty to seek justice, not maximize earnings or generate revenue for a city. In Indio, and across California, Silver & Wright is treating homeowners like ATMs. The U.S. Supreme Court has made it clear that prosecutors cannot have a personal financial stake in the cases they bring. We’re confident the California courts will see this for what it is: an illegal attempt to turn a profit off of the criminal justice system.”
The lawsuit also names the lawyers and the city of Indio as defendants.
It asks that Ramona’s case be reversed since “at the time she pleaded guilty, she had no idea that her prosecutor had a personal, financial stake in the case.”
The case also seeks the return of all fees the lawyers have collected, which appear to total in the hundreds of thousands of dollars.