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March 21, 2008

Mr. Mike Ferriter, Director
Department of Corrections  
P.O. Box 201301
Helena, MT. 59620-1301

Ms. Lois Menzies
Court Administrator
P.O. Box 203005
Helena, MT 59620-3002

Re:  Parental Contributions and Motions for Withholding

Dear Mike and Lois:

After reviewing your joint letter of March 4 in response to mine of January 15, I can empathize with your predicament.  In your March 4, 2008, letter, you stated that Youth Court is directed by statute to institute income withholding from a parent’s paycheck.  However, unlike other provisions set forth in Montana’s Youth Court Act, Section 41-5-1525 does not specify or require the County Attorney’s Office to file any motions or any orders with the court to enforce contribution costs for the youth’s costs of detention, care and treatment.  Ironically, the statute does contemplate an examination of the parents’ ability to pay the attorney fees for prosecuting the youth.   

As you are probably aware, the Yellowstone County Attorney’s Office is the busiest law office in the state, processing more cases than Missoula and Lewis and Clark counties combined.  Juvenile cases are no different.  In speaking with my Youth Court attorneys, they have signed motions for parental contribution prepared by Sue Davis, which are then presented to the judge with a proposed order for a stated amount that purports to be the amount of money that a parent can afford to pay for the care or incarceration of their child.  However, my attorneys do not play any part whatsoever in the calculation of these amounts.  This is the sole function of the Department of Corrections.  Sue Davis, who is the Regional Administrative Officer, sends the support amount which she has calculated from the parents’ income, along with the motion and proposed order for parental contribution.  My office has no idea from what sources those amounts were derived or how they were calculated.  My office has no interest in attempting to collect these monies, all of which apparently goes only to the state and not to this office for prosecuting the youth.

Montana’s Child Support Enforcement Division (CSED) has always been the state department responsible for collecting parental contributions on behalf of outside state agencies.  Apparently, the federal government stepped in and has threatened to withhold its federal monies if CSED continues to be the collecting agency.  I have not seen this audit.  Your system has been in place for years, so I am not sure what is causing the federal government to balk.  In any event, Youth Court, a state agency, assisted by the DOC, another state agency, must now find a way to enforce its parental contribution orders.

This office again declines your invitation to participate in the separate processes of filing motions for income withholding orders and enforcing them.  We are not about to step into the quagmire of the Fair Debt Collection Act, nor try to learn all the exceptions, exemptions, modifications and defenses to this act, and all the alternative payment arrangements that a parent may employ challenging these withholdings.  Since we have no idea of how the income withholding calculations were derived, we will not file motions for such withholdings, nor be the collecting enforcement agency when a parent fails to comply.

Since my attorneys do not have any statutorily directed duty to perform these functions as contemplated in Section 41-5-1525, nor do they have any real understanding of how these calculations were derived, it would seem that Ms. Davis should send the entire package to the Department of Corrections and have one of its attorneys sign all of the motions and present the proposed order to the judge.  My attorneys are not concerned, nor should they be concerned, with the bookkeeping and collection part of Youth Court.  This office’s purpose in Youth Court is to prevent and reduce youth delinquency through a system that provides immediate, consistent, and enforceable consequences of the youth’s actions.  We do not want to be yoked with the huge burden to act as your state agency’s debt collector.  Furthermore, Section 41-5-1525 anticipates modifications, exceptions, alternative arrangements, etc., and Section (4) (c) of the same statute states that alternative arrangements must: (ii) be in writing and be signed by a representative of the department and the person required to make contributions.

It seems clear to me from this subsection that it is the State alone which remains responsible for the performance of these duties, not a county attorney’s office.  Your letter also notes that state employees are exempt from the federal Fair Debt Collection Act.  I would remind you that since my attorneys are Yellowstone County employees and as Yellowstone County is a self-insured entity, we are not willing to enter the pool, only to find out we are at risk of a lawsuit under the Fair Debt Collection Act. 

Thank you for your understanding.

Very truly yours,

Dennis Paxinos
Yellowstone County Attorney