Step set soon on suit over hot-check court

U.S. judge hears sides on jurisdiction

U.S. District Judge James Moody Jr. said Thursday that he will decide “in short order” whether to retain jurisdiction of a lawsuit challenging the constitutionality of Sherwood’s hot-check court procedures or toss it on the grounds that its concerns should be addressed at the state level.

Moody heard about two hours’ worth of arguments from an attorney representing five people who say the court operates as an illegal “debtor’s prison” and from attorneys for each defendant: District Judge Milas “Butch” Hale Jr., the city of Sherwood, Pulaski County and Larry Jegley, prosecuting attorney for Pulaski and Perry counties.

On Jan. 24, U.S. Magistrate Judge Joe Volpe recommended that Moody dismiss the case because the Younger abstention doctrine, which stems from a U.S. Supreme Court case, requires federal courts to abstain from presiding over any case in which there is an ongoing state proceeding that implicates important state interests and offers the opportunity for any relevant federal questions to be addressed.

Moody said Thursday that if he disagrees with Volpe and retains the case, he will then address the defendants’ other motions to dismiss. Those motions weren’t addressed in detail by the magistrate judge, who considered them moot if the case is dismissed.

Meanwhile, the American Civil Liberties Union of Ar-

kansas, which filed the lawsuit Aug. 23 on behalf of the five individual plaintiffs, wants it to remain in federal court and be declared a class action so that it will represent hundreds of people affected by the court’s practices over several years.

Attorney Jayson Cohen of New York, representing the plaintiffs, told Moody, “It is our view that Younger doesn’t apply to this case.”

Although the defendants have argued that the plaintiffs’ hot-check cases are still “ongoing” in state court because they still face possible penalties if they fail to pay outstanding fines, Cohen said that when the suit was filed, each plaintiff no longer had any ongoing criminal proceedings but “merely owed a monetary debt to Sherwood.”

The lawsuit, Cohen argued, is challenging the District Court’s post-conviction debt-collection process — not the plaintiffs’ prior convictions or state laws. He said the lawsuit is seeking only future procedural relief, not asking for any convictions to be overturned.

“We’re looking for a declaration that the procedural failures … violate the Constitution,” he said.

While seeking an injunction to stop the illegal debt-collection practices, “we are not asking the court to step in and manage Judge Hale,” Cohen said, adding, “This case is really about due process and the protection of rights. … It is ultimately about the impossible choice Sherwood Municipal Court puts people in by making them pay a mandatory debt to Sherwood or go to jail,” without a hearing on their ability to pay.

Attorney Michael Mosley, who is representing Hale and the city, said the plaintiffs’ complaints that they were unfairly subjected to additional charges, convictions and sentences in Sherwood as a result of being unable to pay an initial fine are all matters that could have been appealed to Pulaski County Circuit Court but weren’t. He cited several paragraphs of the lawsuit that complain about the District Court treating additional fines stemming from a single hot-check case as “new cases” and then imposing fines or jail time regarding them as well.

The lawsuit alleges that the “never-ending spiral of repetitive court proceedings and ever-increasing debt” violates the due-process rights of hot-check defendants, trapping them in a situation from which they can never escape.

“Today they say they’re not challenging past convictions,” Mosley argued. “That’s belied by their own allegations, your honor. Repeatedly.”

Cohen noted that each of the defendants was convicted of a hot-check violation “many years ago” and then was further punished by additional fees and costs if the defendant failed to appear for a 90-day report, failed to pay off the fine or failed to comply with probation. He said that when the federal case was filed, the statute of limitations for appealing the earlier convictions had already expired and “we made sure to confirm there were no pending state prosecutions” of the four hot-check plaintiffs. The fifth plaintiff didn’t have a hotcheck violation and is arguing only that the court’s procedures constitute an illegal use of tax money.

“The suit can only protect

the plaintiffs in the future,” Cohen said.

Annie Depper, an attorney for Pulaski County, argued that despite the plaintiffs’ repeated claims that they are seeking only prospective relief, if a court finds that any past conviction was illegally imposed, “the past conviction cannot stand” and would have to be vacated.

“While they’re not asking that their convictions be overturned,” Depper said, if the convictions are vacated, “Sherwood District Court would have to come back under orders from this court and give them a new sentence.”

Depper noted that the Sherwood court process is “very unique,” requiring hot-check violators who would otherwise be punished and then move on to return to the court in 90 days to ensure they’re paying the fine. She compared it to Pulaski County’s drug court, in which violators have to return to the court periodically for drug tests and to meet other requirements. In both cases, she said, “we have an ongoing state proceeding.”

Depper also argued that defendants in Sherwood’s hotcheck court have the opportunity to bring up suspected constitutional violations without waiting to appeal to Pulaski County Circuit Court. The defendants contend they have “no meaningful opportunity” to raise constitutional violations in the Sherwood court.

Moody asked Cohen what kind of corrective action the plaintiffs would ask him to take to prevent future violations, if the case stays in federal court.

Cohen said the plaintiffs are seeking a declaration that the Sherwood procedures are unconstitutional, but, “at this point, it’s premature” to say whether such a declaration would be sufficient to force the city to remedy the problem itself. However, he said, “We do not ask for your honor to manage that court.”

He argued that a recent case, known as Sprint from part of its title, “made it clear that federal courts are not to expand the exceptional circumstances to which Younger would apply.”

Moody said the Sprint case “tells me there are no ongoing criminal proceedings” if the defendants didn’t appeal their hot-check convictions. In light of that, he asked attorneys for the defendants, “What ongoing criminal proceeding, as defined by Sprint, can you point to?” He said that according to the U.S. Supreme Court’s ruling in Sprint, “The fact that they haven’t satisfied the sentence is not an ongoing proceeding.”

Mosley pointed out that after the federal case was filed, the Arkansas Supreme Court appointed another judge — Jim Hamilton — to hear any of the plaintiffs’ cases pending before Hale. That indicates that “there were criminal proceedings” going on when the suit was filed, he said.

Moody told attorneys that he had been prepared to rule from the bench Thursday but that after hearing all the arguments and the citations to case law, he would have to take the case “under advisement.” He told attorneys that he may need them to file additional information but he doesn’t anticipate holding another hearing before he rules.