A federal magistrate judge recommended Wednesday that an ACLU-backed lawsuit challenging the constitutionality of procedures used in Sherwood's hot-check court be thrown out of the federal arena to allow state officials to address the issues first.
The recommendation of U.S. Magistrate Judge Joe Volpe now awaits a ruling by U.S. District Judge James Moody Jr., who in late October asked Volpe to decide the case's pretrial issues, including motions to dismiss filed on behalf of the hot-check judge, Milas "Butch" Hale; the city of Sherwood; Pulaski County Prosecuting Attorney Larry Jegley; and Pulaski County.
In a nine-page order released Wednesday morning, Volpe recommended that Moody grant the motions to dismiss based on a doctrine known as the Younger doctrine. Named after a 1971 U.S. Supreme Court case, 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 adequate opportunity to raise any relevant federal questions in the state proceeding."
All of those conditions are met, Volpe said. He noted that there are ongoing proceedings that implicate the state's interests in overseeing its laws regarding the prosecution of hot checks. He also noted that the plaintiffs -- four people who say they have been abused by a never-ending system of fines, warrants and jailings without representation -- can and should raise their concerns about federal unconstitutional practices "by exercising the adequate processes available to them in state court."
A fifth plaintiff, Sherwood resident Philip Axelroth, hasn't been prosecuted in the city's hot-check court but raised a separate issue contending that the court's practices constitute an illegal use of tax money under Arkansas law. A federal judge hearing challenges to the U.S. Constitution can decide to hear any related state claims brought at the same time, but can also refuse to hear the state issues. Volpe recommended that Moody "decline to extend supplemental jurisdiction" over Axelroth's claim.
"There is no reason to believe that seeking a remedy through the Arkansas courts would not afford [the plaintiffs] adequate constitutional protections," Volpe said in his proposed findings and recommendations.
Any objections to Volpe's proposed findings must be filed within 14 days, after which Moody will issue a written order.
In a statement released Wednesday afternoon by the American Civil Liberties Union of Arkansas, the group's executive director, Rita Sklar, said, "We respectfully disagree with the magistrate's recommendation."
"Notably," she added, the recommendations "do not touch the merits of our clients' claims and instead are based on procedural/jurisdictional matters. We are heartened to see that the magistrate judge denied all the defendants' arguments except for this narrow issue."
Volpe's order didn't elaborate on his denial of other pending motions.
Sklar added, "We believe the federal courts can and should exercise their power to review governmental practices such as these to ensure they are consistent with the Constitution."
She said the defendants' arguments "seek to insulate government actions from review."
"We will continue to fight for the rights of our clients and others subject to abusive debtors' prison practices," Sklar said.
Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, whose office is representing Jegley, said Rutledge is "pleased" that Volpe recommended dismissal based on her argument that the matter should be heard in state court. He added, "The attorney general is hopeful that Judge Moody will accept the recommended findings."
Last month, J.D. Gingerich, the director of the state's Administrative Office of the Courts, said twice-yearly judicial training sessions in Arkansas began focusing in the fall on legal obligations concerning fines and fees. He said the new training emphasis was in response to a letter the U.S. Department of Justice sent to state court administrators across the country last March.
The letter, fueled by growing concerns nationwide about due process and equal justice in state and local courts, clarified legal obligations of all state and local courts, and urged them to consider alternative practices to fines and jail time for those who cannot afford monetary penalties.
The department said it had become aware of illegal revenue-raising practices in state and local courts across the country that "trap people in cycles of poverty that can be nearly impossible to escape."
Gingerich said last month that the letter prompted his office to convene a meeting of the circuit judges who serve as the administrators in each of the state's 28 judicial circuits. That meeting led to the newly focused judicial training sessions as well as the formation of a committee of circuit and district judges that is reviewing the way courts across the state impose fines, order jail time for nonpayment of fines and determine a person's ability to pay.
The committee is chaired by Joanna Taylor, a circuit judge in Washington and Madison counties. She said that once the 11-member committee identifies specific concerns and possible remedies, committee members will relay the findings and recommendations to their respective organizations -- the Arkansas Judicial Council and the Arkansas District Judges Council. She said each organization is expected to adopt at least some of the recommendations.
Meanwhile, defense attorneys in central Arkansas have reported noticeable positive changes at the Sherwood court since the lawsuit was filed Aug. 23. Michael Mosley, an attorney with the Arkansas Municipal League who is representing Hale and Sherwood in the federal case, credited the changes to the new training Hale received in the fall through the Administrative Office of the Courts.
Mosley said Hale now requires any defendant who indicates he can't pay a fine to fill out an affidavit of indigency. Before considering punishment, Mosley said, Hale appoints an attorney to represent anyone who qualifies as indigent.
The lawsuit pending before Moody is one of several legal avenues the ACLU has pursued in several states over the past two years to eradicate what it calls "modern-day debtors' prisons."
Lawsuits have been settled in Georgia, Mississippi and Washington state, with the states agreeing to implement policy changes. In Ohio, Louisiana and Nebraska, the ACLU has issued reports about unconstitutional practices, leading so far to changes in Ohio.
In Colorado, the ACLU has helped create new legislation banning the jailing of people for being unable to pay fines;, and in New Hampshire, the ACLU filed a petition to have an indigent man released.
Metro on 01/26/2017