(Daily Montanan) If a judge orders a criminal defendant to test for drugs as a condition of being released from jail, who should pay for the service?

Should the county pay? The state? Should the defendant? What if the person doesn’t have money?

In a lawsuit heard last week in U.S. District Court in Missoula, lawyer Constance Van Kley said different parties point the finger at each other while defendants who can’t pony up the money for fees often sit in jail.  Ravalli County, for example, argues it’s just following court orders when it ensures people adhere to conditions the judge sets — and the conditions cost money. Yet she noted the judges maintain they aren’t setting any fees.

In the meantime, Van Kley said people in Ravalli County’s jail diversion program are stuck with the bill, to the tune of hundreds of dollars a month at times, and no one assesses their ability to pay.  If they don’t pay, the lawyers argued the sheriff keeps people in jail or threatens to jail them even if they are indigent.

“They have to pay the fees,” said Van Kley, with Upper Seven Law of Montana.

She said the policy is “intentionally discriminatory” against people who can’t pay, and they don’t have an opportunity to contest the fees.

Defendants in the case disagreed and noted people can challenge the fees as they wish — and although they don’t always prevail, evidence shows at least one person successfully argued for a reduction.

Last Wednesday, Judge Kathleen DeSoto heard arguments from lawyers on a handful of motions in the case, Evenson-Childs vs. Ravalli County. In the lawsuit, the plaintiffs allege the fees are causing “unconstitutional incarceration,” or a “debtor’s prison,” for those who can’t pay.

The defendants, in part, argued the examples the plaintiffs were bringing forward don’t have any relevance to whether their constitutional rights have been violated.

In a motion for a preliminary injunction, the plaintiffs, which have formed a group for a possible class action, are asking the court to prohibit the Ravalli County Sheriff’s Office and county from charging fees related to jail diversion and to bar them from detaining anyone for failing to pay. The county contracts for services such as alcohol monitoring and requires defendants ordered to use the services to pay.

In the lawsuit, the district court judges also are being sued for their role in a system the plaintiffs allege deprives Ravalli County inmates of constitutional protections. But the judges’ lawyer, Tom Leonard, said Montana law authorizes his clients to impose pretrial conditions handled by the county.

The judges are neutral toward criminal defendants, he said, and they’re simply applying state law.

“It’s hard to imagine why the judges are being sued in this case,” said Leonard, with Boone Karlberg in Missoula.

On behalf of Ravalli County, lawyer Mitch Young said the specific experiences of the individual plaintiffs don’t prove the larger allegations of constitutional rights being violated, and they ignore the way judges work and the role of the county.

“We’re attempting to enforce the orders that are set down by the court,” said Young, with the Montana Association of Counties, MACo Defense Services.

DeSoto fired questions at lawyers on both sides. Aren’t judges just applying the law? Money aside, why is requiring participation in a pretrial program a problem? Who has the legal obligation to assess ability to pay?

And is the problem really that the pretrial program is an unfunded mandate?

“If the state fully funded it would we be here?” DeSoto asked.

Not based on the specific claim in dispute, Van Kley said.

Plaintiffs’ lawyer Phil Telfeyan also said due process is lacking, and when people do get a chance to contest fees, it’s in an inconsistent way.

Telfeyan, with Equal Justice Under Law based in Washington, D.C., also said that the sheriff asking the criminal defendants themselves to foot the bill for those services to get out of jail makes as much sense as the sheriff stealing a car to pay for the services — an example he admitted was “outlandish” but one to make his point.

People stay in jail even after paying bail, he said, because the sheriff wants them to pay their fees too: “‘I’ve got a badge. I’ve got a gun. I’ve got the keys to your jail cell.’”

At one point, DeSoto said she wasn’t quite sure Telfeyan’s description of the situation was precise. “I understand what you’re saying,” she said. “You’re being very dramatic.”

In his argument, though, Telfeyan, also noted a real world impact on a defendant, a mom who didn’t buy clothes for her children because she feared she would go to jail if she didn’t pay the fees.

At the hearing, the judge took up several motions, including the request for a preliminary injunction and one to certify a class, and she said she would take their arguments under consideration.