SARAH S. VANCE, UNITED STATES DISTRICT JUDGE.
Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights putative class action under 42 U.S.C. § 1983, challenging the manner in which the Orleans Parish Criminal District Court collects post-judgment court debts from indigent criminal defendants. Before the Court are the parties' cross-motions for partial summary judgment.
Plaintiffs are former criminal defendants in the Orleans Parish Criminal District Court (OPCDC). Each named plaintiff pleaded guilty to various criminal offenses between 2011 and 2014.
The remaining defendants are OPCDC Judges Laurie A. White, Tracey Flemings-Davillier, Benedict Willard, Keva Landrum-Johnson, Robin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry Cantrell (collectively, the Judges); OPCDC Judicial Administrator Robert Kazik; and Orleans Parish Sheriff Marlin Gusman.
The Judges impose various costs on convicted criminal defendants at their sentencing. First, the Judges may impose a fine, which is divided evenly between OPCDC and the District Attorney (DA). La. Rev. Stat. § 15:571.11(D). Second, the Judges may order a criminal defendant to pay restitution to victims. La. Code Crim. Proc. art. 883.2. Third, the Judges impose various fees that go to OPCDC:
Fourth, the "court costs" imposed by Judges also include fees that go to other entities, such as the Orleans Public Defender, the DA, and the Louisiana Supreme Court.
Separately, the Sheriff collects a 3% fee on bail bonds secured by commercial sureties. Id. § 22:822(A)(2). Sixty percent of this fee, or 1.8% of the bonds, goes to OPCDC. Id. §§ 22:822(B)(3), 13:1381.5(B)(2)(a).
As a result of their criminal convictions, the named plaintiffs were assessed fines and fees ranging from $148 (imposed on Long) to $901.50 (imposed on Cain).
Brown received a 90-day suspended sentence after pleading guilty to misdemeanor theft on December 16, 2013.
Reynajia Variste was sentenced to two years of probation after she pleaded guilty to aggravated battery on October 21, 2014.
Vanessa Maxwell was sentenced to eighteen months imprisonment for battery and six months for simple criminal damage after pleading guilty on March 6, 2012.
The Judges manage the budget of OPCDC.
From 2012 through 2015, the Judicial Expense Fund's annual revenue was approximately $4,000,000.
All named plaintiffs were subject to OPCDC's debt collection practices. At least until September 18, 2015, the Judges delegated authority to collect court debts to the Collections Department, which the Judges and Administrator Kazik jointly instructed and supervised.
Before the Collections Department issued these alias capias warrants, its agents were trained to send two form letters to criminal defendants who had missed payments.
The Collections Department then checked court dockets to determine whether the court had granted an extension on or accepted a payment toward an individual's court debts.
These alias capias warrants stated that the individual named in the warrant was charged with contempt of court.
Individuals arrested pursuant to these warrants ordinarily remained in jail until their family or friends could make a payment on their court debt, or until a judge released them.
Alana Cain was arrested pursuant to an alias capias warrant on March 11, 2015.
Ashton Brown spent two weeks in jail before his family secured his release by making a $100 payment to OPCDC.
Reynajia Variste was arrested pursuant to an alias capias warrant on May 28, 2015.
Vanessa Maxwell was arrested on May 10, 2015, on an alias capias warrant.
After this suit was filed, the Judges revoked the Collections Department's authority to issue warrants.
Nevertheless, at least some active warrants for failure to pay restitution still exist.
Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Amendment rights, and violations of Louisiana tort law. Plaintiffs brought this action on behalf of themselves and all others similarly situated.
After a round of motions, all claims against the City of New Orleans, the Sheriff, and OPCDC were dismissed, along with Count Three and claims against the remaining defendants for monetary and injunctive relief.
Now, plaintiffs seek declaratory relief against the Judges in their official capacity on Counts One, Two, Four, Five, and Six; declaratory relief against Administrator Kazik in his individual capacity on Counts One, Two, and Six; injunctive and declaratory relief against Sheriff Gusman in his official capacity on Count Four; and injunctive and declaratory relief as well as damages against the Sheriff on Count Seven.
As ordered by the Court, the parties have submitted cross-motions for summary judgment on Counts One, Two, Four, Five, and Six.
Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, the Court considers "all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but "unsupported allegations or affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 1075. "No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial." Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or "showing that
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324, 106 S.Ct. 2548. The nonmovant may not rest upon the pleadings, but must identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075 ("Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." (quoting Celotex, 477 U.S. at 322, 106 S.Ct. 2548)).
Defendants' motion for summary judgment challenges the justiciability of this action on several grounds. First, defendants argue that the named plaintiffs lack standing. Second, they argue that certain claims are moot in light of defendants' voluntary cessation of challenged conduct. Third, defendants argue that plaintiffs impermissibly seek a writ of mandamus against state judicial officers. Fourth, defendants argue that the Court cannot grant declaratory relief in this case. Finally, defendants argue that the Eleventh Amendment bars official-capacity claims against state judicial officers.
Article III of the U.S. Constitution limits federal jurisdiction to cases or controversies. U.S. Const. art. III, § 2. To satisfy this case-or-controversy requirement, a plaintiff must have a personal stake in the suit she commences. See Davis v. Fed. Election Comm'n, 554 U.S. 724, 732-33, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). This personal stake must exist both at commencement and throughout the life of the suit. Id. ("To qualify as a case fit for federal-court adjudication, `an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.'" (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997))). If a plaintiff does not have the requisite personal stake at the commencement of the suit, she lacks standing. If her once-sufficient personal stake dissipates during the life of the suit such that Article III is no longer satisfied, her claims become moot. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (first addressing standing at the commencement of suit and then addressing mootness).
Defendants confuse these two doctrines — standing and mootness — in their motion for summary judgment. First, they argue that the named plaintiffs lack standing because their debts have been "suspended" or "waived."
The waiver or suspension of plaintiffs' court debts after the commencement of this suit relates to mootness, not standing. Plaintiffs have standing to bring suit as long as they "had the requisite stake in the outcome when the suit was filed." Davis, 554 U.S. at 734, 128 S.Ct. 2759. Standing to bring suit, however, has no bearing on whether plaintiffs' claims became moot during the life of the suit. See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) (distinguishing standing from mootness). Whether the "suspension" or "waiver" of plaintiffs' court debts destroyed their interest in the outcome of this suit is properly addressed as a question of mootness.
The Court is nonetheless obligated to determine whether the parties had standing to bring suit. Laidlaw, 528 U.S. at 180, 120 S.Ct. 693. Standing consists of three elements: (1) the plaintiff must have suffered an injury-in-fact, which is an invasion of a legally protected interest that is concrete and particularized as well as actual or imminent; (2) the injury must be fairly traceable to the challenged conduct of the defendant; and (3) it must be likely that the plaintiff's injury will be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). With regard to "equitable relief for past wrongs, a plaintiff must demonstrate either continuing harm or a real and immediate threat of repeated injury in the future." Soc'y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1285 (5th Cir. 1992). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing each element of standing. Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016).
In support of their standing argument, defendants note that this Court dismissed Reynaud Variste's and Thaddeus Long's claims for equitable relief because neither plaintiff owed outstanding courts debts for which they could be imprisoned.
The Court is satisfied that the other named plaintiffs — Alana Cain, Ashton Brown, Reynajia Variste, and Vanessa Maxwell — had standing to bring suit. Defendants do not contest that these plaintiffs owed court debts when this suit was filed in September 2015. Thus, there is no dispute that these plaintiffs were subject to defendants' debt collection policies and practices when this suit began.
Plaintiffs demonstrated a concrete and imminent injury arising from defendants' policies and practices: the risk of arrest and imprisonment for failing to pay outstanding court debts. This risk was not hypothetical or speculative; plaintiffs themselves were arrested and imprisoned for that very reason shortly before the suit commenced. Compare Roark & Hardee LP v. City of Austin, 522 F.3d 533, 543 (5th Cir. 2008) (concluding that "because some Plaintiff bar owners have been charged under the ordinance and all Plaintiff bar
The Court first addresses whether any claims are moot in light of defendants' voluntary cessation of certain debt collection practices. As a general rule, "any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot," Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006), and requires that the case be dismissed, Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). Although "[i]t is well settled that `a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,'" Laidlaw, 528 U.S. at 189, 120 S.Ct. 693 (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)), this rule is not absolute. "A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Id. (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). Additionally, "[w]ithout evidence to the contrary, [courts] assume that formally announced changes to official governmental policy are not mere litigation posturing." Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009). Nonetheless, a defendant's burden of showing mootness by virtue of its voluntary cessation is "formidable." Laidlaw, 528 U.S. at 190, 120 S.Ct. 693.
Defendants, through an affidavit by Administrator Kazik, state that they have taken the following actions in response to this lawsuit:
Defendants insist that the Collections Department "will never again issue warrants."
Upon close examination, the Court is satisfied that defendants' voluntary conduct has mooted plaintiffs' claims related to Collections Department fines and fees warrants. A memorandum issued by Administrator Kazik on September 18, 2015 stated: "Pursuant to the En Banc directive issued earlier today, all Collections Agents for Criminal District Court may no longer issue an Alias Capias for non-payment of fines and fees or for failure to
Admittedly, the timing of these policy changes suggests that they were made in response to this litigation. Administrator Kazik states in his affidavit that the Judges decided to revoke the Collections Department's authority to issue warrants on "the day the Judges first heard about this lawsuit."
Nevertheless, the Court finds that defendants' voluntary policy changes make it absolutely clear that Collections Department practices could not reasonably be expected to recur. Defendants have formally revoked the Collections Department's authority to issue warrants. The sincerity of this policy change is reflected in defendants' decision to rescind all warrants issued by the Collections Department for failure to pay fines and fees, other than for restitution. Defendants have met their formidable burden of showing that their voluntary conduct has mooted Counts One, Two, and Four.
As discussed earlier, Counts Five and Six focus on what the Judges do, not what the Collections Department did, when criminal defendants fail to pay fines and fees. Specifically, Count Five challenges the Judges' practice of failing to inquire into ability to pay before plaintiffs are imprisoned for nonpayment, and the Judges' conflict of interest in deciding plaintiffs' ability to pay.
The Court finds that defendants have not met their formidable burden of showing mootness on Counts Five and Six. First, and most importantly, the Judges do not represent that they have ceased imprisoning individuals for failure to pay court debts by some means other than Collections Department warrants. Nor do they represent that they now consider ability to pay before imprisoning such individuals. Unlike the en banc directive withdrawing the Collections Department's authority to issue warrants, there is no formal statement in the record indicating that the Judges' challenged practices have changed.
Defendants principally rely on the affidavit of Administrator Kazik to show mootness. But Administrator Kazik cannot — and does not — represent what the Judges' current practices are, nor what the Judges will do going forward. Instead, Administrator Kazik states that "[t]o the best of Judicial Defendants' ability, no fines and fee warrants issued by a currently sitting or prior judge exist, unless there was a determination that other good cause existed in the court record supporting the warrant, such as a failure to appear in court or a failure to pay restitution."
Second, the Judges now handle collection efforts on their respective dockets,
Third, defendants' corrective efforts are so riddled with exceptions and omissions as to cast doubt on the sincerity of their actions. Administrator Kazik's affidavit
Understandably, the Judges would like to see this lawsuit go away. But they have not done enough to show institutional change. Again, the Judges have not indicated that they have ceased imprisoning criminal defendants for failure to pay, or that they now inquire into those criminal defendants' ability to pay. Evidence in the record confirms that plaintiffs still face the possibility of alleged constitutional injury if they fail to pay their court debts. For these reasons, defendants' voluntary conduct does not moot Counts Five and Six.
The Court next addresses whether plaintiffs' claims are moot in light of the apparent cancellation of their court debts. A case will become moot when "there are no longer adverse parties with sufficient legal interest to maintain the litigation," or "when the parties lack a legally cognizable interest in the outcome" of the litigation. In re Scruggs, 392 F.3d 124, 128 (5th Cir. 2004) (quoting Chevron, U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir. 1993)). The purpose of this personal stake requirement is to ensure that the case involves "sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions." U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 403, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980).
A case should not be declared moot so "long as the parties maintain a `concrete interest in the outcome' and effective relief is available to remedy the effect of the violation." Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998) (quoting Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984)). The bar to overcome mootness is lower than the bar to establish standing: "there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome
Defendants assert that OPCDC suspended the remaining balance of court debts owed by Alana Cain and Ashton Brown, and waived that of Reynajia Variste.
Plaintiffs first argue that defendants may reinstate Cain's and Brown's suspended debts. While OPCDC suspended Cain's and Brown's court debts, it waived Maxwell's. The Court presumes that a state court uses language decidedly, and that OPCDC used suspension and waiver to describe different actions.
To suspend a debt implies that OPCDC has temporarily ceased enforcing its claim against an individual for her court debts. See Merriam-Webster Dictionary Online, www.merriam-webster.com (defining suspend as "to cause to stop temporarily"; "to defer to a later time on specified conditions"; "to hold in an undetermined or undecided state awaiting further information"). By contrast, to waive a debt suggests a decision permanently to forgo debt collection. See id. (defining waive as "to refrain from pressing or enforcing (something, such as a claim or rule): forgo · waive the fee"); see also Veverica v. Drill Barge Buccaneer No. 7, 488 F.2d 880, 883 (5th Cir. 1974) (holding that deferral of payment for a salvage operation did not waive the resulting maritime lien, "but merely suspend[ed] the remedy on the lien" until payment came due (emphasis added)). Thus, the plain meanings of "suspend" and "waive" indicate that defendants may reinstate Cain's and Brown's, but not Maxwell's, court debts.
Supreme Court precedent makes plain that temporary relief from injury does not moot a plaintiff's claim for permanent equitable relief. In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the Supreme Court reviewed a district court injunction against the use of chokeholds by police officers. After the Court granted certiorari, the city imposed a moratorium on chokeholds. Id. at 100, 103 S.Ct. 1660. As the Court stated in a later opinion, this moratorium "surely diminished the already slim likelihood that any particular individual would be choked by police." Laidlaw, 528 U.S. at 190, 120 S.Ct. 693. Nevertheless, the Supreme Court held that the city's moratorium did not moot the case because "the moratorium by its terms [was] not permanent." Lyons, 461 U.S. at 101, 103 S.Ct. 1660. By the same logic, this Court finds that temporarily suspending Cain's and Brown's court debts does not moot their claims for declaratory relief.
Moreover, the record shows that defendants continued to collect payments from Cain and Brown after suspending their debts. According to a docket sheet, Cain's court debts were suspended on April 7, 2016.
At oral argument, the parties represented that Cain has received a reimbursement check from OPCDC. It is unclear, however, when or why Cain received the reimbursement check, or which court costs it reimbursed. The check is not in the summary judgment record, and the Court cannot simply assume that OPCDC has reimbursed Cain for all payments made after the date her debts were suspended. Moreover, defendants have not asserted that Brown — or anyone else whose debts were suspended — received a reimbursement check from OPCDC. Cain's reimbursement check does not affect the Court's analysis.
That OPCDC continued to collect payment from Cain and Brown after suspending their debts also shows that the "capable of repetition, yet evading review" exception applies. Ctr. for Individual Freedom, 449 F.3d at 661. This "exception can be invoked if two elements are met: `(1) [T]he challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.'" Id. (alteration in original) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975)). Defendants suspended Cain's court debts in April 2016 — merely seven months after this proceeding began. Seven months was too short a time to resolve this complicated suit. Additionally, defendants' actual debt collection efforts after suspending Cain's and Brown's debts creates a reasonable expectation that these plaintiffs will again be subject to defendants' debt collection practices in the future. Thus, even if defendants' suspension of Cain's and Brown's court debts otherwise moots their individual claims, the capable of repetition, yet evading review exception applies.
Plaintiffs also argue that the named plaintiffs' claims cannot be mooted because a motion for class certification is pending.
Sosna v. Iowa, 419 U.S. 393, 402 n.11, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); see also Genesis Healthcare, 569 U.S. at 75, 133 S.Ct. 1523 ("[A]n inherently transitory
The Supreme Court again addressed a challenge to pretrial detention in McLaughlin. The named plaintiffs in McLaughlin were incarcerated and had not yet received a probable cause hearing when they filed suit. 500 U.S. at 48-49, 111 S.Ct. 1661. Before the district court certified the class, the named plaintiffs either received a probable cause determination or were released. "That the class was not certified until after the named plaintiffs' claims had become moot [did] not deprive [the Court] of jurisdiction," however. Id. at 52, 111 S.Ct. 1661 (citing Gerstein, 420 U.S. at 110 n.11, 95 S.Ct. 854). As in Gerstein, the Court held that the relation back doctrine "preserve[d] the merits of the case for judicial resolution." Id.
While Sosna, Gerstein, and McLaughlin all applied the relation back doctrine to inherently transitory claims, the Fifth Circuit has further applied the doctrine to claims "rendered moot by purposive action of the defendants." Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1049 (5th Cir. Unit A July 1981). The Zeidman court held that, when "the plaintiffs have filed a timely motion for class certification and have diligently pursued it, the defendants should not be allowed to prevent consideration of that motion by tendering to the named plaintiffs their personal claims before the district court reasonably can be expected to rule on the issue." Id. at 1045. The court reasoned that defendants should not "have the option to preclude a viable class action from ever reaching the certification stage" by "picking off" the named plaintiffs, whose claims would otherwise become moot.
Plaintiffs' claims for equitable relief tend to evade review, especially if defendants can pick off the named plaintiffs by suspending or waiving their court debts. Moreover, plaintiffs timely moved for class certification.
The Court therefore finds that the named plaintiffs' claims are not moot for two reasons. First, Alana Cain and Ashton Brown still owe court debts; defendants' temporary suspension of these debts does not destroy Cain's or Brown's personal stake in the litigation. Second, with respect to Cain's and Brown's debts, defendants' debt collection practices are capable of repetition, yet evading review.
Defendants argue that plaintiffs' claims for declaratory relief against the Judges and Administrator Kazik are tantamount to requests for a writ of mandamus.
Plaintiffs' summary judgment motion clearly frames the claims against the Judges and Administrator Kazik as requests for declaratory relief. But defendants argue that plaintiffs essentially want this Court to direct defendants in the exercise of their judicial duties. Specifically, according to defendants, plaintiffs seek a court order directing the Judges to hold hearings on ability to pay, to cease delegating warrant authority to the Collections Department, and to stop issuing capias warrants.
A writ of mandamus compels the defendant to perform a certain act. See Mandamus, Black's Law Dictionary (10th ed. 2014). By contrast, the declaratory judgments plaintiffs seek on Counts One, Two, Four, Five, and Six would merely state that certain of defendants' practices are unconstitutional.
Defendants further argue that the Court lacks the authority to entertain plaintiffs' claims for declaratory relief.
Defendants argue that declaratory relief is not appropriate because this case is no longer justiciable. As explained earlier, Counts Five and Six are not moot. Thus, the Court may entertain these claims for declaratory relief.
Defendants' final justiciability challenge relates to whether the Judges enjoy sovereign immunity on plaintiffs' official-capacity claims against them. Defendants argue that suing a state official in her official capacity is the same as suing the state directly.
Because Counts One, Two, and Four are moot, defendants are entitled summary judgment on these counts. Having found
The core of plaintiffs' constitutional challenge to the Judges' debt collection measures is that the Judges imprison poor debtors solely because they cannot afford to pay court debts. Count Five specifically challenges the Judges' practice of failing to inquire into indigent debtors' ability to pay court debts before the debtors are imprisoned for nonpayment.
The facts related to Count Five are undisputed. Most importantly, the Judges do not routinely solicit financial information from criminal defendants who fail to pay their court debts,
The evidence in the record confirms this practice. Each named plaintiff was imprisoned for failure to pay court debts. But at no point — not at sentencing, not before their imprisonment, not at a hearing while they were imprisoned — did a judge inquire into their ability to pay. By way of example, Ashton Brown was imprisoned for failure to pay court fees from July 23 to August 7, 2015.
Alana Cain was imprisoned for failure to pay restitution and fees from March 11 to March 18, 2015.
Some criminal defendants who appeared before a judge while they were imprisoned for failure to pay fines and fees were sent back to jail, apparently because they could not make a payment. For example, Tyrone Singleton was arrested for failure to pay fines and fees on November 11, 2013.
This evidence suggests that the Judges do not release criminal defendants imprisoned for failure to pay court debts without a payment, or some promise of payment.
There is no genuine dispute, therefore, that the Judges have a practice of not inquiring into plaintiffs' ability to pay court debts when plaintiffs are essentially held
Plaintiffs argue that the Judges' failure to inquire into plaintiffs' ability to pay court debts violates the Fourteenth Amendment.
Supreme Court precedent speaks directly to the kind of procedural protections the Judges must provide to plaintiffs. This precedent is grounded in the well-established principle that an indigent criminal defendant may not be imprisoned solely because of her indigence. See Tate v. Short, 401 U.S. 395, 398, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); see also United States v. Voda, 994 F.2d 149, 154 n.13 (5th Cir. 1993) ("Constitutionally, courts are limited in the penalty they can impose for nonpayment of criminal fines because of inability to pay."). Admittedly, there is nothing necessarily unconstitutional about imprisoning a convicted criminal defendant for failing to pay fines and fees. As the Supreme Court recognized, this custom "dates back to medieval England and has long been practiced in this country." Williams v. Illinois, 399 U.S. 235, 239, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (footnote omitted). But the Supreme Court has imposed constitutional limits on this practice when applied to indigent criminal defendants. In Williams, for example, the Court held that "an indigent criminal defendant may not be imprisoned in default of payment of a fine beyond the maximum [term of imprisonment] authorized by the statute regulating the substantive offense." 399 U.S. at 241, 90 S.Ct. 2018. Such imprisonment constitutes "impermissible discrimination that rests on ability to pay." Id.
Following Williams, the Supreme Court addressed a constitutional challenge to a state's method of collecting fines from an indigent criminal defendant. Tate, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130. The criminal defendant in Tate had accumulated fines for traffic offenses, which were punishable only by fine. Id. at 396-97, 91 S.Ct. 668. Because the defendant was indigent when the state court imposed the fines, the court sentenced him to a term of imprisonment — each day counted as five dollars toward the defendant's outstanding fines. Id. The Court invalidated this practice as violating equal protection, explaining that "the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is
Over a decade later, in Bearden, the Supreme Court addressed a similar challenge to a probation revocation proceeding. There, the Court held that an indigent defendant's probation cannot be revoked (and thus converted into a jail term) for his failure to pay a court-imposed fine or restitution "absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate." 461 U.S. at 665, 103 S.Ct. 2064. The Court further held:
Id. at 672-73, 103 S.Ct. 2064. The state court imprisoned Bearden "because he could not pay the fine, without considering the reasons for the inability to pay or the propriety of reducing the fine or extending the time for payments or making alternative orders." Id. at 674, 103 S.Ct. 2064. In this way, "the court automatically turned a fine into a prison sentence." Id.
More recently, the Supreme Court in Turner reiterated the importance of the ability-to-pay determination prior to imprisonment, this time in the context of a civil contempt proceeding. The Court applied the Mathews v. Eldridge framework to determine whether an indigent defendant has "a right to state-appointed counsel at a civil contempt proceeding, which may lead to his incarceration." Turner, 564 U.S. at 441, 131 S.Ct. 2507. The Court noted "the importance of the interest at stake" — the defendant's interest in preventing the "loss of [his] personal liberty through imprisonment." Id. at 445, 131 S.Ct. 2507. Given the importance of this interest, the Court stated, "it is obviously important to assure accurate decisionmaking in respect to the key `ability to pay' question." Id. The Court held that due process does not require state-appointed counsel so long as the state provides other procedural safeguards equivalent to "adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information [concerning ability to pay], and court findings." Id. at 448, 131 S.Ct. 2507.
The Court finds that Bearden is controlling, and that Turner is instructive. Admittedly, there are some differences between those cases and this one. For example, unlike the court in Bearden, OPCDC does not impose a term of imprisonment upon criminal defendants for failure to pay their court debts. And OPCDC's debt collection procedures appear to operate independently from revocation of probation. See State v. Kenniston, 976 So.2d 226, 227 (La. App. 4 Cir. 2008) (noting that OPCDC issued two alias capias warrants for failure to pay court debts, and that the state later initiated probation revocation proceedings); see also La. Code Crim. Proc. arts. 899-900 (describing probation revocation procedures). But "[n]othing in the language of
Like the defendant in Turner, plaintiffs are subject to imprisonment as the result of civil contempt-like proceedings. Admittedly, neither party in Turner was represented by counsel during the civil contempt proceeding, and the complaining party was not the state, 564 U.S. at 448-49, 131 S.Ct. 2507; here, by contrast, the complaining party — OPCDC — is both an organ of the state and represented by counsel (the Judges), and the criminal defendants generally are also represented by counsel. But Turner does stand for the broader proposition that the ability-to-pay inquiry required by Bearden must have some procedural safeguards.
Bearing in mind that Bearden and Turner speak directly to the procedural requirements of an ability-to-pay inquiry, the Court now turns to the application of the Mathews framework to the facts of this case. First, plaintiffs' interest in securing their "freedom `from bodily restraint[ ]' lies `at the core of the liberty protected by the Due Process Clause.'" Turner, 564 U.S. at 445, 131 S.Ct. 2507 (quoting Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)). Plaintiffs' liberty interest weighs heavily in favor of procedural safeguards provided before imprisonment.
Second, the risk of erroneous deprivation without an inquiry into ability to pay is high. At least some criminal defendants, including the named plaintiffs, are subject to imprisonment for failure to pay fines and fees despite their indigence. OPCDC necessarily determined that all named plaintiffs, except Reynaud Variste, were indigent when it appointed counsel for them during their criminal proceedings.
Third, the Judges fail to point to any countervailing interest in not inquiring into plaintiffs' ability to pay before imprisonment. According to Administrator Kazik, the Judges consider ability to pay if a criminal defendant raises the issue.
Moreover, there is no authority for the proposition that a criminal defendant must raise the issue of her inability to pay. As the Court explained in an earlier order, the Judges' reliance on Garcia v. City of Abilene, 890 F.2d 773 (5th Cir. 1989), and Sorrells v. Warner, 21 F.3d 1109 (5th Cir. 1994) (unpublished), is unavailing.
It is undisputed that the Judges provide no ability-to-pay inquiry, nor any further procedural safeguards, to indigent criminal defendants who are subject to imprisonment for failure to pay court debts. Under Bearden and Turner, the Judges must inquire into plaintiffs' ability to pay before their imprisonment. This inquiry must involve certain procedural safeguards, especially notice to the individual of the importance of ability to pay and an opportunity to be heard on the issue. If an individual is unable to pay, then the Judges must consider alternative measures before imprisoning the individual.
Plaintiffs are entitled summary judgment on Count Five to the extent they seek a declaration that the Judges' practice of not inquiring into plaintiffs' ability to pay before they are imprisoned for non-payment violates the Fourteenth Amendment.
Count Five also challenges the dual role the Judges play: they are responsible for both determining criminal defendants' ability to pay fines and fees and managing a portion of the revenue derived from those
"Trial before an unbiased judge is essential to due process." Pub. Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001) (quoting Johnson v. Mississippi, 403 U.S. 212, 216, 91 S.Ct. 1778, 29 L.Ed.2d 423 (1971)); see also Brown v. Edwards, 721 F.2d 1442, 1451 (5th Cir. 1984) ("The right to a judge unbiased by direct pecuniary interest in the outcome of a case is unquestionable."). Although due process requires a judge's disqualification "only in the most extreme of cases," Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), the Supreme Court has found due process violations when judges maintained pecuniary interests in cases before them.
In Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 S.Ct. 749 (1927), a defendant was convicted of possessing liquor in violation of Ohio's Prohibition Act. The Act provided for trial in a "liquor court," in which the village mayor served as judge. Id. at 521, 47 S.Ct. 437. The money raised by fines levied in these courts was divided between the state, the village general fund, and two other village funds. Id. at 521-22, 47 S.Ct. 437. One of these other funds covered expenses associated with enforcing the Prohibition Act, including nearly $700 paid to the mayor "as his fees and costs, in addition to his regular salary." Id. at 522, 47 S.Ct. 437. The Supreme Court overturned Tumey's conviction, and held that the mayor, acting as judge, was disqualified from deciding Tumey's case "both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village." Id. at 535, 47 S.Ct. 437.
In Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), the Court considered a challenge to traffic fines imposed by another Ohio mayor's court. Fines generated by the mayor's court at issue in Ward provided a "major part" of the total operating funds for the municipality that the mayor oversaw. Id. at 58, 93 S.Ct. 80. The Court viewed the case as controlled by Tumey and noted, "that the mayor [in Tumey] shared directly in the fees and costs did not define the limits of the principle" of judicial bias articulated in that case. Id. at 60, 93 S.Ct. 80. Instead, the Court offered a general test to determine whether an arrangement of this type compromises a criminal defendant's right to a disinterested and impartial judicial officer:
Id. (quoting Tumey, 273 U.S. at 532, 47 S.Ct. 437). In holding that the mayor's court in Ward violated due process, the Court found that the impermissible temptation "[p]lainly ... may also exist when the mayor's executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor's court." Id.
In some cases, a judicial officer's institutional interest may be too remote to create
The Fifth Circuit applied Tumey and Ward to strike down Mississippi's system of compensating justices of the peace. Brown v. Vance, 637 F.2d 272 (5th Cir. Jan. 1981). By law, the justices of the peace were paid based on the volume of cases filed in their courts. Id. at 274. No evidence of "actual judicial bias" was necessary "to hold the fee system constitutionally infirm." Id. at 282. Instead, the incontrovertible possibility that the justices of the peace would "compete for business by currying favor with arresting officers or taking biased actions to increase their caseload ... deprive[d] criminal defendants of their due process right to a trial before an impartial tribunal." Id.
It is undisputed that the Judges are responsible for both managing fines and fees revenue and determining whether criminal defendants are able to pay those same fines and fees, once imposed. Fines and fees revenue goes into the Judicial Expense Fund,
Various statutes give the Judges authority over revenue from fines and fees. First, Louisiana law directs the Sheriff to allocate half of all fines and forfeitures to an "account to be administered by the judges of the criminal district court of Orleans Parish." Id. § 15:571.11(D). This revenue is "to be used in defraying the expenses of the criminal courts of the parish, extraditions, and such other expenses pertaining to the operation of the criminal court of Orleans Parish." Id.
Second, the Judges may impose costs of up to $100 on convicted criminal defendants (other than those who are indigent); Louisiana law directs the Judicial Administrator to place these sums in a "Criminal Court Cost Fund" to be administered by the Judges. Id. § 13:1377. Each of the Judges may authorize disbursements from this fund "to assist in the operation and maintenance" of OPCDC. Id. § 13:1377(C).
Third, and most importantly, the Judges may impose a fee of up to $500 on a misdemeanant and up to $2,500 on a felon; Louisiana law directs the Judicial Administrator to place these sums in the Judicial Expense Fund. Id. § 13:1381.4. The same provision also imposes a $5 fee on every convicted criminal defendant, and directs the Judicial Administrator to place these
Fourth, the Judges may impose a $14 fee on convicted, non-indigent criminal defendants; this cost goes into an Indigent Transcript Fund "to compensate court reporters for the preparation of all transcripts for indigent defendants." Id. § 13:1381.1(A). Louisiana law authorizes the Judges, sitting en banc, to pay "deputy court reporters for the transcription of indigent defendant cases" out of the Indigent Transcript Fund. Id. § 13:1381.1(C). Evidently, the Judges impose additional costs under Louisiana Code of Criminal Procedure Article 887(A) for the Indigent Transcript Fund.
Fifth, the Judges (or presiding judge) may establish a drug division and may administer a probation program for criminal defendants charged with an alcohol- or drug-related offense. La. Rev. Stat. § 13:5304. Louisiana law requires that individuals in this program pay for their own drug testing, "unless the court determines that he is indigent." Id. § 13:5304(B)(3)(e).
Although several of these fees appear to be dedicated to certain purposes, the revenue all goes into the Judicial Expense Fund.
The Judges' power over fines and fees revenue creates a conflict of interest when those same Judges determine (or are supposed to determine) whether criminal defendants are able to pay the fines and fees that were imposed at sentencing. As explained earlier, the Judges have a constitutional obligation to inquire into criminal defendants' ability to pay court debts. But the Judges have a financial stake in the outcome of ability-to-pay determinations; if they determine that a criminal defendant has the ability to pay, and collect money from her, then the revenue goes directly into the Judicial Expense Fund. Cf. United Church of the Med. Ctr. v. Med. Ctr. Comm'n, 689 F.2d 693, 699 (7th Cir. 1982) ("In this case the Commission has a pecuniary interest in the outcome of the reverter proceedings, because if the Commission finds a nonuse or disuse, the property reverts to the Commission .... This is sufficient ... to mandate disqualification of the Commission in the reverter proceeding...."). The Judges therefore have an institutional incentive to find that criminal defendants are able to pay fines and fees.
The Judges' dual role, as adjudicators who determine ability to pay and as managers of the OPCDC budget, offer a possible temptation to find that indigent criminal defendants are able to pay their court debts. This "inherent defect in the legislative framework" arises not from the bias of any particular Judge, but "from the vulnerability of the average man — as the system works in practice and as it appears to defendants and to the public." Brown, 637 F.2d at 284.
Further evidence of an actual conflict of interest is that the Judges have sought ways to increase collections from criminal defendants. At a City Council hearing in July 2014, a judge explained that the Judges were sharing ideas "in an effort to increase [their] collection" of fines and fees.
Defendants' reliance on Broussard v. Parish of New Orleans, 318 F.3d 644 (5th Cir. 2003), is misplaced. The plaintiffs in Broussard challenged the constitutionality of the Louisiana bail fee statutes on a number of grounds. As relevant here, the plaintiffs argued that these statutes violated Tumey and Ward by "tempt[ing] sheriffs to stack charges against arrestees in violation of their due process rights." Id. at 661. The court found that Tumey and Ward were inapplicable because the sheriffs-defendants in Broussard did not exercise a judicial function. Id. at 662. As purely executive actors, the sheriffs were "not expected to maintain a level of impartiality equal to that expected of judges." Id. Unlike the sheriffs in Broussard, the Judges in this case do exercise a judicial function when they are required to determine ability to pay fines and fees. Thus, unlike in Broussard, the Ward test applies to whether the Judges have an unconstitutional conflict of interest.
That the Judges have an institutional, rather than direct and individual, interest in maximizing fines and fees revenue is immaterial. See Chrysler Corp. v. Tex. Motor Vehicle Comm'n, 755 F.2d 1192, 1199 (5th Cir. 1985) ("Certainly the due process principle distilled from the Tumey line reaches beyond immediate economic stakes to include economic interests said to be `indirect' or `institutional.'"). Ward itself involved a mayor who had no direct, personal interest in traffic fine revenue; his interest related solely to his "executive
Additionally, that the Judges manage court funds collectively does not render their institutional interest too remote. Unlike in Dugan, where the mayor was only one member of a five-person commission that shared executive power with the city manager (who was the acting executive), collectively the Judges exercise all executive power over OPCDC's share of fines and fees revenue. Moreover, the Supreme Court has applied Tumey and Ward to the members of a state board of optometry, all of whom had a personal interest in revoking the licenses of optometrists employed by corporations. Gibson v. Berryhill, 411 U.S. 564, 578, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). The Court held that the board members were disqualified from adjudicating charges against such optometrists. Id.; cf. Chrysler, 755 F.2d at 1199 (finding no impermissible bias where only four out of nine commissioners potentially had conflict of interest).
Plaintiffs have established that the Judges' dual role creates a "possible temptation... not to hold the balance nice, clear, and true between the state and the accused." Ward, 409 U.S. at 60, 93 S.Ct. 80 (quoting Tumey, 273 U.S. at 532, 47 S.Ct. 437). By no fault of their own, the Judges' "executive responsibilities for [court] finances may make [them] partisan to maintain the high level of contribution," in the form of fines and fees, from criminal defendants. Id.
Plaintiffs must also establish that the Judges' conflict of interest is substantial. In Tumey, the Court noted that "[t]he minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final judgment without a jury, do not involve any such addition to the revenue of the village as to justify the fear that the mayor would be influenced in his judicial judgment by that fact." 273 U.S. at 534, 47 S.Ct. 437. According to the Ninth Circuit, the proper question is "whether the official motive here is `strong,' so that it `reasonably warrants fear of partisan influence on the judgment.'" Alpha Epsilon Phi Tau Chapter Hous. Ass'n v. City of Berkeley, 114 F.3d 840, 847 (9th Cir. 1997) (quoting Commonwealth of N. Mariana Islands v. Kaipat, 94 F.3d 574, 575, 582 (9th Cir. 1996)).
The Judges' institutional interest in maximizing fines and fees revenue is substantial. Fines and fees revenue is obviously important to the Judges; fines and fees provide approximately 10% of the total OPCDC budget and one quarter of the Judicial Expense Fund.
Moreover, the aggregate amount at stake in determining criminal defendants' ability to pay is significant. According to the parties' joint stipulations of fact, OPCDC collects only between 40% and 50% of the fines and fees it assesses.
Both Administrator Kazik and Judge Zibilich have suggested that collection rates are low partly because most criminal defendants are indigent. In a 2014 letter requesting a higher appropriation from the City of New Orleans, Administrator Kazik explained that most of the OPCDC budget "is received from the various fines and fees assessed to defendants at sentencing."
It is undisputed that OPCDC depends heavily on fines and fees revenue, that many criminal defendant subject to these fines and fees are indigent, and that collection rates are only 40% to 50%. Based on these facts, it is clear the Judges' motive to maximize fines and fees revenue is strong enough reasonably to warrant fear of partisan influence on ability-to-pay determinations. See Alpha Epsilon, 114 F.3d at 847 (9th Cir. 1997). Thus, plaintiffs have established that the Judges face a substantial conflict of interest when they determine ability to pay fines and fees (or are supposed to do so).
This conflict of interest exists by no fault of the Judges themselves. It is the unfortunate result of the financing structure, established by governing law, that forces the Judges to generate revenue from the criminal defendants they sentence. Of course, the Judges would not be in this predicament if the state and city adequately funded OPCDC. So long as the Judges control and heavily rely on fines and fees revenue, however, the Judges' adjudication of plaintiffs' ability to pay those fines and fees offends due process.
Count Six is an equal protection challenge against defendants' debt collection practices. Plaintiffs argue that these practices are harsher than debt collection measures available to private creditors.
Plaintiffs attempt to show discrimination on the face of the Louisiana statutory framework for contempt proceedings. See, e.g., Lewis v. Ascension Par. Sch. Bd., 72 F.Supp.3d 648, 662-63 (M.D. La. 2014) (distinguishing explicit classification from discriminatory application of facially neutral law); see also Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 543-45 (3d Cir. 2011) (same). Plaintiffs principally rely on James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), where the Supreme Court addressed a Kansas recoupment statute that allowed the state to "recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants." Id. at 128, 92 S.Ct. 2027. The statute excluded these indigent defendants from "the array of protective exemptions Kansas has erected for other civil judgment debtors," such as "the exemption of his wages from unrestricted garnishment." Id. at 135, 92 S.Ct. 2027. The Court struck down the statute as "embod[ying] elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law." Id. at 142, 92 S.Ct. 2027.
Plaintiffs argue that defendants' practice of jailing criminal defendants is similarly discriminatory. They note that Louisiana has abolished the writ of capias ad satisfaciendum, which allowed a private creditor to imprison a debtor until her judgment was satisfied. See La. Rev. Stat. § 13:4281 (abolishing writ); Capias, Black's Law Dictionary (defining capias ad satisfaciendum as "[a] postjudgment writ commanding the sheriff to imprison the defendant until the judgment is satisfied"). According to plaintiffs, a private creditor seeking to enforce a judgment against a debtor may now seek contempt of court. A debtor in that situation has various procedural protections under Louisiana law. For example, the court must issue a rule "to show cause why [the debtor] should not be adjudged guilty of contempt"; this rule to show cause must be served on the debtor at least 48 hours before trial; and if the court finds the debtor guilty, it must issue "an order reciting the facts constituting the contempt." La. Code Civ. Proc. art. 225.
By law, criminal defendants have similar procedural protections in contempt proceedings: the judge must issue a rule to show cause; this rule must be served on the criminal defendant at least 48 hours before trial; and if the court finds the defendant guilty, it must issue "an order reciting the facts constituting the contempt." La. Code Crim. Proc. art. 24. Thus, the statutory procedures for contempt proceedings are essentially the same for both civil and criminal defendants. Unlike in James, there is no discrimination on the face of these statutes. Plaintiffs are not entitled summary judgment on Count Six.
For the foregoing reasons, the Court GRANTS plaintiffs' motion for summary
