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

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.”