Plain­tiffs’ lawyers seek to re­vive suit on hot-check court

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - LINDA SATTER

A fed­eral law­suit al­leg­ing that Sher­wood’s hot-check court rou­tinely stam­pedes over the rights of the poor by pe­nal­iz­ing them for their in­abil­ity to pay fines should be re­in­stated, at­tor­neys for the five plain­tiffs as­serted Thurs­day.

On June 8, U.S. District Judge James Moody Jr. adopted the pro­posed find­ings of U.S. Mag­is­trate Judge Joe Volpe and threw the case out, saying it in­volved un­re­solved state-court is­sues.

The judges cited the Younger ab­sten­tion doc­trine, named after the 1971 U.S. Supreme Court case Younger v. Har­ris, which re­quires fed­eral judges to ab­stain from exercising ju­ris­dic­tion over 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.

The judges agreed with the de­fen­dants — Sher­wood District Judge Mi­las “Butch” Hale, the city of Sher­wood, the Pu­laski County pros­e­cut­ing at­tor­ney’s of­fice and the county it­self — that the plain­tiffs were in­volved in on­go­ing state pro­ceed­ings, so the Younger doc­trine ap­plied.

But in a mo­tion filed Thurs­day to al­ter and amend the judg­ment, at­tor­neys for the four for­mer hot-check-court de­fen­dants and a Sher­wood tax­payer who was the fifth plain­tiff cited proof that the state-court pro­ceed­ings were over when the law­suit was filed Aug. 23, 2016, and when it was amended Sept. 30, 2016.

They asked to amend the law­suit “to add al­le­ga­tions demon­strat­ing that no Plain­tiffs were sub­ject to on­go­ing state crim­i­nal pros­e­cu­tions in the Sher­wood District Court both at the time this ac­tion was filed and for the months fol­low­ing.”

Ac­cord­ing to the mo­tion, the judges’ re­liance on the Younger doc­trine “was a man­i­fest er­ror of law. Younger ab­sten­tion does not ap­ply where there is no pend­ing crim­i­nal prose­cu­tion, and plain­tiffs sim­ply owe post-con­vic­tion debt.”

At­tached to the mo­tion are copies of Free­dom of In­for­ma­tion Act re­quests re­cently sent to the court on be­half of each plain­tiff and the re­sults of those re­quests, which the at­tor­neys said “con­clu­sively demon­strate” their point.

The mo­tion notes that two of the plain­tiffs “ul­ti­mately did face fail­ure to ap­pear charges in 2017, months after” the law­suit was filed. But it said those charges don’t trig­ger Younger be­cause they post-date the com­plaint.

Moody con­sid­ered the plain­tiffs’ out­stand­ing fines, fees and costs re­sult­ing from their pre­vi­ous pros­e­cu­tions, and the like­li­hood that they “could, in the fu­ture, be charged for non­pay­ment of those debts” in de­cid­ing that their cases were “on­go­ing,” the mo­tion states. But in it, at­tor­neys said the U.S. Supreme Court doesn’t al­low that.

Re­cap­ping the al­le­ga­tions in the law­suit, the fil­ing noted that un­der an in­for­mal agree­ment in the mid-1970s among the cities within Pu­laski County, the Sher­wood court “has a vir­tual mo­nop­oly on the prose­cu­tion of mis­de­meanor hot-check vi­o­la­tions within Pu­laski County.”

“After a hot-check de­fen­dant is con­victed in a per­func­tory hear­ing, they are sub­jected to a labyrinthine sys­tem de­signed to ex­tract the max­i­mum amount of rev­enue from those in­di­vid­u­als least able to pay,” it says.

“Those de­fen­dants who can­not im­me­di­ately pay their sen­tence of fines, fees and costs are placed on pay­ment plans by Hot Check Di­vi­sion clerks, which the clerks im­pose ar­bi­trar­ily with­out any in­quiry into the … de­fen­dant’s abil­ity to pay,” it con­tin­ues.

“The clerks as­sign ‘review hear­ing’ dates one to three months in the fu­ture to en­sure that con­victed hot check de­fen­dants are mak­ing pay­ments ac­cord­ing to their pay­ment plans,” the fil­ing says. “At these ‘review hear­ings’ Judge Hale threat­ens pre­vi­ously con­victed hot check de­fen­dants who are not pay­ing enough with jail to co­erce pay­ment — again with­out as­sess­ing their abil­ity to pay, even when they as­sert that they can­not.”

Michael Mosley, an at­tor­ney for the Arkansas Mu­nic­i­pal League, which is rep­re­sent­ing Sher­wood and Hale, has de­nied that Hale or the court dishes out un­con­sti­tu­tional penal­ties. He has noted that, par­tic­u­larly after Hale at­tended an­nual ju­di­cial train­ing last fall after the state be­gan em­pha­siz­ing the dos and don’ts of debt col­lec­tion pro­ce­dures, the judge rou­tinely con­sid­ers a de­fen­dant’s abil­ity to pay and of­fers al­ter­na­tives to fines or jail.

The state be­gan em­pha­siz­ing the new train­ing in re­sponse to a U.S. Depart­ment of Jus­tice me­moran­dum sent to all state court ad­min­is­tra­tors last year. The memo cited con­cerns about the pro­ce­dures be­ing used in state and lo­cal courts across the coun­try.

The Amer­i­can Civil Lib­er­ties Union, which is be­hind the Sher­wood case, has in­sti­gated law­suits and other mea­sures in var­i­ous ju­ris­dic­tions across the coun­try doc­u­ment­ing un­con­sti­tu­tional prac­tices and forc­ing changes.

The four plain­tiffs who have gone through Sher­wood’s hot-check court “have been stuck in De­fen­dants’ debt col­lec­tion scheme for the bet­ter part of a decade,” the mo­tion states.

It says the post-con­vic­tion debt pro­ce­dures “have locked each plain­tiff in a never-end­ing cy­cle of debt and im­pris­on­ment. In ad­di­tion to be­ing in­car­cer­ated be­cause they can­not af­ford to pay these debts, Plain­tiffs have also been sub­ject to separate, crim­i­nal ‘charges’ be­ing brought against them — for fail­ure to pay, fail­ure to ap­pear, and/or fail­ure to com­ply.”

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