There is no pending state-court judicial proceeding to which a federal judge should defer in lieu of hearing a federal lawsuit challenging hot-check prosecution procedures in Pulaski County, civil liberties attorneys say.
A 32-page filing outlining the American Civil Liberties Union of Arkansas' objections to a recommended dismissal of the federal lawsuit was filed Wednesday.
On Jan. 25, U.S. Magistrate Judge Joe Volpe issued a written recommendation that U.S. District Judge James Moody Jr. throw out the Aug. 23 lawsuit, which cites state and federal constitutional concerns, to allow state officials to address the issues first.
Volpe cited the Younger abstention doctrine, which grew out of a 1971 U.S. Supreme Court case, Younger v. Harris. It requires federal district courts to abstain from exercising jurisdiction over any case in which there is an ongoing state proceeding that implicates important state interests and in which an adequate opportunity exists to raise any relevant federal questions.
In objections to the recommendation, attorneys for the defendants -- the city of Sherwood, the hot-check judge and Pulaski County -- agreed that the lawsuit should be thrown out of federal court, but said the dismissal should be based on more than the abstention doctrine. They urged Moody to also find that Prosecuting Attorney Larry Jegley and Sherwood District Judge Milas "Butch" Hale are immune from liability for doing their jobs.
The plaintiffs -- five people the ACLU says have been harmed by the procedures -- initially responded to those objections by saying Volpe is right to reject the immunity arguments but wrong to toss the case out of federal court to allow the state to address the concerns. Their recent filing elaborated on the jurisdictional questions.
Volpe wrote that because four of the five plaintiffs still face costs, fines, fees and the threat of incarceration, "there are ongoing state proceedings" that "implicate the state's interests in overseeing its laws regarding the prosecution of hot checks."
The plaintiffs' attorneys disagreed, saying, "there is no underlying state criminal proceeding pending against Plaintiffs to which this court can defer."
Even if the state's "post-conviction debt collection scheme" qualifies as a pending state judicial proceeding, the ACLU attorneys argued, the plaintiffs need "an adequate opportunity to raise their federal constitutional challenge while caught in the Defendants' illegal collection scheme."
The plaintiffs include four people who have been convicted of writing hot checks and another man who says the system of fines and fees amounts to an illegal use of tax laws.
A trial on the lawsuit has been tentatively scheduled to begin Oct. 16, but Moody hasn't ruled on the plaintiffs' request for class-action status, and the defendants have asked him to dismiss the case on the pleadings alone. Moody has stayed all discovery until he rules on the motions to dismiss.
Behind the scenes, the state of Arkansas has been implementing new judicial training procedures to curb many of the issues raised in the lawsuit, which were also raised last spring by the U.S. Department of Justice. The department urged administrators of courts across the country to ensure that state and local courts are following due process procedures when considering fines and jail time for offenders.
Volpe's recommendation didn't mention the new judicial training protocol for state and local judges in Arkansas.
In this week's filing, the plaintiffs' attorneys argued that the "long-standing and pervasive scheme to funnel Pulaski County 'hot check' prosecutions to the Sherwood District Court, and to then use a labyrinthine, post-conviction debt collecting scheme to generate municipal revenue at the cost of violating the plaintiffs' constitutional rights," has been in place for more than 20 years.
As part of the scheme, they contend, "the Sherwood District Court and Sherwood and Pulaski County law enforcement personnel use arrest and incarceration as a means to coerce payments from those who are simply unable, through no fault of their own, to pay onerous and ever-growing court costs, fines, and fees."
The four hot-check plaintiffs "have been mired" in the scheme "for the better part of a decade," all for initially cashing a hot check for "as little as a few dollars," the pleading states. It says that for each of them, "and thousands of other hot check defendants like them, these original convictions would metastasize and grow through successive, post-conviction hearings and collection efforts into thousands of dollars in added court costs, fines, and fees, all because [they] could not pay the fines and fees assessed on the original hot check charge."
Although none of the plaintiffs face any outstanding warrants or criminal charges, each owes thousands of dollars for past violations and related added charges, and each "faces the threat of future arrest and incarceration because they are too poor to pay these outstanding debts," it says.
Most misdemeanor hot-check charges in Pulaski County are prosecuted in Sherwood, under an informal agreement into which the cities in the county entered in the mid-1970s. However, businesses can attempt to recover from hot-check losses through any district court in the county, according to attorney David Fuqua, who represents the county.
In objecting to the possible dismissal of the case, the plaintiffs also cited previous U.S. Supreme Court cases spelling out the duty of federal courts to hear and decide cases, except in very narrow circumstances, and the high court's admonition in a 1973 case that a plaintiff's ability to raise an issue in a state court "is necessarily inadequate if the state tribunal is unconstitutionally biased."
The filing asserts that the debt-collection process being challenged in the lawsuit "is run precisely to prevent an individual from successfully raising their federal constitutional rights."
It argues that there is no procedural mechanism available for the plaintiffs to appeal their constitutional claims concerning their criminal convictions to Pulaski County Circuit Court.
"Because the plaintiffs have no adequate opportunity to assert their federal constitutional claims in any state proceeding ... this Court cannot abstain under Younger," according to the filing, which was written by attorney J. Alexander Lawrence of New York City.
Metro on 02/25/2017