Lawyers say shun advice to toss suit

Keep checks case where is, they say

Attorneys on both sides of a lawsuit challenging the constitutionality of fines and debt collection practices in Sherwood’s hot- check court want a district judge to reject a recommendation to throw the case out of federal court to give the state first crack at resolving the issues.

But the parties oppose U. S. Magistrate Judge Joe Volpe’s Jan. 25 recommendation for different reasons.

The defendants — the city of Sherwood, its hotcheck court judge and the county prosecuting attorney — agree that the case should be thrown out, but want it to be dismissed on more grounds than Volpe recommends.

The plaintiffs — five people who say they have been harmed by the court’s practices — applaud Volpe’s rejection of the other grounds argued by the defendants, but say he is wrong to suggest kicking it out of the federal arena so the state can deal with the issues first.

Volpe’s recommendation is pending before U. S. District Judge James Moody Jr., a former state circuit judge who has been on the federal bench for nearly three years. In October, Moody assigned the task of reviewing dismissal motions and objections to Volpe.

At issue is a federal lawsuit that the American Civil Liberties Union of Arkansas filed Aug. 23 on behalf of four people who say the unconstitutional procedures have trapped them for years in an endless cycle of fines, fees and jail time; and a fifth person who, as a Sherwood resident, contends that the procedures constitute an illegal use of taxpayer funds.

The defendants are Milas “Butch” Hale, the judge who presides over Sherwood’s hot- check court; the city of Sherwood; Pulaski County; and Larry Jegley, a state employee who is the prosecuting attorney for Pulaski and Perry counties.

Without addressing the merits of the case, Volpe recommended that Moody dismiss the case based on the Younger abstention

doctrine. It requires a federal district court to “abstain from exercising jurisdiction” in any case in which there is an ongoing state proceeding that implicates important state interests, when “there is an adequate opportunity to raise any relevant federal questions in the state proceeding.”

Volpe observed that there are ongoing proceedings that implicate the state’s interests in overseeing its laws regarding the prosecution of hot- check cases. He said the plaintiffs can and should raise their concerns about unconstitutional federal practices through state court, noting, “There is no reason to believe that seeking a remedy through the Arkansas courts would not afford [ the plaintiffs] adequate constitutional protections.”

After the lawsuit was filed, but not necessarily because of it, Arkansas’ Administrative Office of the Courts began emphasizing legal obligations concerning fines and fees in its twice- yearly training sessions for Arkansas judges.

J. D. Gingerich, the office director at the time, said the new emphasis was a response to a letter the U. S. Department of Justice sent to state court administrators across the country last March. The letter, fueled by growing concerns about how state and local courts ensure due process, spelled out the courts’ legal obligations and urged state and local judges to consider alternatives to fines and jail sentences for the poor.

The department said it had become aware of illegal revenue- raising practices in state and local courts across the country that “trap people in cycles of poverty that can be nearly impossible to escape.”

Arkansas’ response to the Justice Department has included forming a committee of circuit and district judges to review court procedures across the state. The committee is responsible for presenting findings and recommendations to the state councils that oversee circuit judges and district judges.

The plaintiffs’ attorneys filed a response last week to Jegley’s argument that Moody should also dismiss the case on the grounds that he is immune from suit as a prosecutor and that the lawsuit fails to state a claim for which the court can grant relief.

The plaintiffs’ attorneys argued that they are legally “permitted to sue Jegley in his official capacity for violations of federal law where the relief sought is prospective and not compensatory.” They noted that the lawsuit “seeks only prospective injunctive and declaratory relief” — specifically, a finding that the procedures are unconstitutional and an order that they be stopped.

In response to other objections from Jegley, the plaintiffs argued that the lawsuit established a “causal relationship” between the prosecutor and the alleged constitutional violations. They noted that it alleges that Jegley’s office “helped establish the debt- collection scheme at issue,” agreed to “funnel hot- check charges” to Sherwood, and “supports the scheme” by having deputy prosecutors attend hearings where constitutional violations occur without taking action to stop them.

The plaintiffs’ attorneys also say that while Jegley could be immune from suit as a state official if he had been sued for violations of the Arkansas Constitution, “because Plaintiffs sued him for violations of the federal constitution, he has no such immunity.”

The lawsuit, the attorneys wrote, “seeks to vindicate important federal rights, and thus falls squarely within” the federal court’s purview.

They noted that the lawsuit asserts that Sherwood and Hale, “with the active assistance” of Jegley, have jailed people who were sentenced to pay court costs, fines and fees “without making any inquiry into whether they are able to pay and/ or notwithstanding their inability to pay.”

The prosecutor’s office “furthers this illegal scheme by characterizing missed payment hearings and arrest warrants issued pursuant to missed payment hearings as new stand- alone charges,” the plaintiffs’ response said. They said the prosecutor’s office “abdicates their prosecutorial duties” to Hale “in a manner that is inconsistent with the adversarial system of justice,” by failing to make a formal appearance, present evidence or speak during the proceedings.

The prosecutor’s office also allows the court and its administrators “to exercise prosecutorial discretion” by deciding whether to file contempt of court charges for failure to pay a fine, failure to appear or failure to comply with probation, the plaintiffs argued. They cited a state statute that says, “Each prosecuting attorney shall commence and prosecute all criminal actions in which the state or any county in his district may be concerned.”

The filing argued that objections to Volpe’s recommendation that were filed on behalf of Sherwood and Hale weren’t specific enough to warrant a start- from- scratch analysis by Moody. The objections included that Hale was entitled to judicial immunity and that the lawsuit didn’t state an appropriate

claim for relief.

Besides, the plaintiffs argued, the other reasons cited by Hale and Sherwood in support of dismissing the case don’t apply to claims for “prospective relief,” as the plaintiffs are seeking. The filing stressed that the plaintiffs “do not challenge the underlying guilty pleas, convictions, and sentences that led to those outstanding court costs, fines and fees.”

The plaintiffs dismissed a defense argument citing legal doctrines that bar claims about injuries that were caused by a court judgment, noting that they are challenging only post- judgment procedures.

While agreeing with Volpe that the lawsuit should be thrown out of the federal arena because of the abstention doctrine, the defendants said they wanted to preserve their other arguments in case Moody accepts Volpe’s recommendations in their entirety, and the plaintiffs raise them in an appeal.