Judge dismisses suit over hot-check court

The suit alleged that the post-conviction collection methods used by the court, and supported by the county and the prosecuting attorney’s office, mirror other unfair practices used across the state and the country.

A 2016 lawsuit alleging that Sherwood’s hot-check court has for years violated the constitutional rights of the poor, in essence acting as a “debtor’s prison,” was thrown out of federal court Thursday.

U.S. District Judge James Moody Jr. adopted a federal magistrate judge’s January recommendation to dismiss the case on the grounds that the issues need to be taken up in state court first. Moody’s order didn’t elaborate, except to say that he agreed with U.S. Magistrate Judge Joe Volpe that the Younger doctrine applies.

Named after the 1971 U.S. Supreme Court case Younger v. Harris, the doctrine 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 and where there is an opportunity to raise any relevant federal questions in the state proceeding.

“We are disappointed that the victims of Sherwood’s unconstitutional debtors’ prison are being denied their day in court on procedural grounds,” Rita Sklar, executive director of the Arkansas Civil Liberties Union of Arkansas, said in a news release. She noted that the case wasn’t dismissed “on the substance of our clients’ complaints,” which never had an opportunity to be aired.

“Our justice system should provide equal treatment to the rich and poor,” Sklar said. “But, for years, the Sherwood court system has criminalized and profited from poor and vulnerable citizens, trapping them in a never-ending spiral of court fees, debt and even jail simply for bouncing a single check.”

She added, “We are analyzing the ruling and will be visiting with our clients to determine our next steps.”

Michael Mosley, an attorney representing Sherwood and Judge Milas “Butch” Hale of the Sherwood District Court, said Thursday that he has heard that the plaintiffs’ attorneys will appeal the order to the 8th U.S. Circuit Court of Appeals in St. Louis.

He reiterated that he didn’t think the four plaintiffs who complained that they were trapped in an unfair system of being punished for their inability to pay fines for writing hot checks took the right approach in the first place.

“I think the proper thing to have done was to appeal any conviction they believed was in violation of the Constitution,” he said, acknowledging that the statute of limitations for appealing may have expired in most, if not all, the plaintiffs’ cases.

He said he believes a similar civil lawsuit filed in state court “should meet the same fate.”

The plaintiffs included four people who were prosecuted in Hale’s court, which handles most hot-check cases throughout the county, and a fifth plaintiff, Sherwood resident Philip Axelroth, who alleged that the court’s practices constituted an illegal use of taxpayer money.

They filed suit in August through the ACLU of Arkansas and the national Lawyers’ Committee for Civil Rights Under the Law, seeking class-action status to represent hundreds of poor people who have been trapped by the threat and reality of incarceration for their failure to pay fines. The defendants were Sherwood, Hale, Pulaski County and Pulaski County Prosecuting Attorney Larry Jegley.

The suit alleged that the post-conviction collection methods used by the court, and supported by the county and the prosecuting attorney’s office, mirror other unfair practices used across the state and the country. But it said that Sherwood was targeted because it, in particular, “has become notorious … for zealously prosecuting misdemeanor violations of the Arkansas Hot Check Law, creating a system used by local officials to criminalize those who do not have enough money to cover bounced checks.”

It said, “Through a labyrinth — and lucrative — system, a single check for $15 returned for insufficient funds can be leveraged into thousands of dollars in court costs, fines and fees owed to Sherwood and Pulaski County. These costs are borne by the poorest and most disadvantaged citizens in the community.”

The suit alleged that a defendant convicted of a misdemeanor hot-check charge is typically required to pay restitution in the amount of the unpaid check, as well as a $165 fine, $100 in court costs, a $25 prosecuting attorney hot-check fee, a $30 restitution fee, a $50 warrant fee, a $20 city jail fee and a $20 county jail fee, resulting in penalties exceeding $400 regardless of the amount of the check.

The lawsuit also said Hale issued an arrest warrant every time a defendant failed to make a payment, and that Sherwood police have shown up at defendants’ homes, threatening to arrest them unless they make a payment on the spot.

But Mosley said Thursday that Hale “has been offering payment plans all along” and that he routinely imposes a $130 fine for a first-offense hot check, even though state law allows him to impose up to $500.

“I submit that the court is acting constitutionally,” he said, adding, “I disagree that the court doesn’t consider a defendant’s indigence,” noting that Hale now sentences people who can’t pay a fine to community service.

In addition to lawsuits and public reports the ACLU has filed in several states alleging unconstitutional practices in state and local courts, the U.S. Department of Justice expressed concerns to statecourt administrators across the country in early 2016 about the importance of ensuring due process and equal justice.