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Judge: Wabasha Co. driver class illegal (01/08/2014)
By Sarah Squires
Lynn Cliff was cruising along a Wabasha County roadway in 2008 when the red lights began flashing. She pulled to the side of the road and waited for the inevitable speeding ticket.

Instead of a simple ticket, Cliff was given a choice: pay the fine and have the citation listed on her driving record, or attend a county driving class — for a fee — and have the ticket waived. The ticket and fee for the class were similar, and Cliff chose to head to Wabasha County's "Safe Driving Class" to keep the offense off her record.

Cliff later learned that the diversion program was unlawful and joined a group of Wabasha County residents in a lawsuit against both the state and Wabasha County. A Fillmore County judge agreed, and issued a permanent injunction against the program earlier this week.

The Safe Driving Class, established in 2003, has collected more than $400,000 in class fees from those accused of petty misdemeanor driving offenses, lining county coffers instead of state tax accounts — where ticket fines would have been deposited had offenders been forced to pay for a citation instead of the class. The program was repeatedly described as unlawful by reports generated by the state auditor, but the state did not intervene, and the county chose to continue the program for years.

The lawsuit

Current Wabasha County Commissioners Debra Roschen and David Harms, along with former Wabasha County Board member Merl Norman and Cliff, filed the suit against Wabasha County, Wabasha County Sheriff Rodney Bartsh in his official capacity, the sheriff's department, Wabasha County Auditor-Treasurer Denise M. Anderson in her official capacity, the auditor-treasurer's office, the state of Minnesota, the Minnesota Office of Attorney General, Minnesota Attorney General Lori Swanson in her official capacity, the Minnesota Office of the State Auditor, and Minnesota Auditor Rebecca Otto in her official capacity.

Judge James A. Fabian, in his ruling issued Monday, dismissed all claims against the state and state officials, but enjoined the sheriff from continuing the program and agreed to hear other claims against Wabasha County and county officials during an upcoming review hearing.

The State Auditor's Office issued opinions in 2004, 2009, 2010, and 2012, stating that the driving program violated state law, but the state did not intervene with the county program. Fabian's ruling indicated that while state officials had acknowledged the program was not in accordance with the law, the state has discretion to determine when to take action.

"No matter how frustrating the state's inaction may be, there is no conflict of issues between plaintiffs and the state defendants," wrote Fabian in his ruling. "For whatever reason, the state has chosen to take no action against the alleged traffic diversion programs in the state."

Minnesota statutes do allow for some types of criminal diversion programs that allow offenders to avoid the most serious sentences in exchange for treatment or other rehabilitation. However, the statute does not allow for such programs for those accused of petty misdemeanors, Fabian wrote.

Fabian also dismissed plaintiffs' claims that the program resulted in the unlawful disbursement of public money, ruling that, because the funds generated by the program were not considered taxes, plaintiffs had a lack of standing to prove that public money was unlawfully disbursed. The funds from the program, according to court records, were used for sheriff's department training and equipment.

Driving laws generate fines and fees for the state, Fabian explained in his ruling. "The continuation of a program that is not legally supported could cause not only Wabasha [County] taxpayers irreparable injury, but citizens of the state," he wrote. "In addition, out-of-state individuals cited for speeding in Wabasha County are not entitled to the same treatment as individuals in or around Wabasha County. The potential equal protection violation and the possible consequences from the state of Minnesota for the loss of fees or fines could cause great and irreparable injury to plaintiffs and similarly-situated taxpayers."

Fabian wrote that an injunction was necessary, because if he chose simply to declare the program illegal, it "would do no more than the state of Minnesota's auditor report has done. There is no other available remedy that would protect taxpayers from an illegal action being carried out by public officials."

The plaintiffs allege that both the Wabasha County Sheriff and County Attorney "continually misled the Wabasha County Board of Commissioners regarding the program," according to court records. Roschen and Harms attempted to pass a County Board resolution to bring the program into compliance with the law in August 2013, but the effort failed. "Because our colleagues on the board were unwilling to even discuss the class during a board meeting, we were left with two choices," said Harms. "As elected commissioners, we could continue to knowingly break the law, or we could have this matter resolved in court." 


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