Cain et al v. New Orleans City et al, No. 2:2015cv04479 - Document 279 (E.D. La. 2017)

Court Description: ORDER AND REASONS granting in part and denying in part 250 and 251 Motion for Partial Summary Judgment. For the foregoing reasons, the Court GRANTS plaintiffs' motion for summary judgment on Count Five. The Court GRANTS defendants' mot ion for summary judgment on Counts One, Two, and Four. The parties' motions are otherwise DENIED. Counts One, Two, and Four are DISMISSED AS MOOT. Administrator Kazik is DISMISSED from this case. Signed by Judge Sarah S. Vance on 12/13/2017. (Reference: 15-4479)(cg)

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Cain et al v. New Orleans City et al Doc. 279 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ALANA CAIN, ET AL. CIVIL ACTION VERSUS NO. 15-4479 CITY OF NEW ORLEANS, ET AL. SECTION “R” (2) ORD ER AN D REASON S Plaintiffs Alana Cain, Ashton Brown, Reynaud Variste, Reynajia Variste, Thaddeus Long, and Vanessa Maxwell filed this civil rights putative class action under 42 U.S.C. § 1983, challenging the m anner in which the Orleans Parish Crim inal District Court collects post-judgm ent court debts from indigent crim inal defendants. Before the Court are the parties’ crossm otions for partial sum m ary judgm ent. 1 These motions turn on justiciability, the constitutionality of defendants’ debt collection practices, and the constitutionality of the legislative framework that vests both judicial and executive power in the judges of the Orleans Parish Crim inal District Court. For the following reasons, the Court grants in part and denies in part each m otion. 1 R. Docs. 250 , 251. 1 Dockets.Justia.com I. BACKGROU N D Plaintiffs are form er crim inal defendants in the Orleans Parish Crim inal District Court (OPCDC). Each nam ed plaintiff pleaded guilty to various crim inal offenses between 20 11 and 20 14. 2 All nam ed plaintiffs, except Reynaud Variste, were appointed counsel. 3 The Court previously dism issed Reynaud Variste’s and Long’s claim s for equitable relief. 4 Thus, only Cain, Brown, Reynajia Variste, and Maxwell have live claim s for equitable relief. The rem aining defendants are OPCDC J udges Laurie A. White, Tracey Flem ings-Davillier, Benedict Willard, Keva Landrum-J ohnson, Robin Pittm an, Byron C. William s, Cam ille Buras, Karen K. Herm an, Darryl Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate J udge Harry Cantrell (collectively, the J udges); OPCDC J udicial Administrator Robert Kazik; and Orleans Parish Sheriff Marlin Gusm an. A. Fin e s an d Fe e s Im p o s e d by OPCD C The J udges impose various costs on convicted crim inal defendants at their sentencing. First, the J udges m ay im pose a fine, which is divided evenly between OPCDC and the District Attorney (DA). 2 3 4 R. Doc. 248 at 4-5. R. Doc. 59-3 at 2, 6, 9, 18, 23; R. Doc. 95-7 at 1. See R. Doc. 10 9 at 19-21. 2 La. Rev. Stat. § 15:571.11(D). Second, the J udges may order a crim inal defendant to pay restitution to victim s. La. Code Crim . Proc. art. 883.2. Third, the J udges im pose various fees that go to OPCDC: • A m andatory $ 5 fee, La. Rev. Stat. § 13:1381.4(A)(1); • Additional fees up to $ 50 0 on a m isdem eanant and $ 2,50 0 on a felon, id. § 13:1381.4(A)(2); • Court costs up to $ 10 0 , id. § 13:1377(A); • A fee of $ 14 for the Indigent Transcript Fund, id. § 13:1381.1(B), which “com pensate[s] court reporters for the preparation of all transcripts for indigent defendants,” id. § 13:1381.1(A); and • Additional costs under Louisiana Code of Crim inal Procedure Article 887(A) for the Indigent Transcript Fund. 5 Fourth, the “court costs” im posed by J udges also include fees that go to other entities, such as the Orleans Public Defender, the DA, and the Louisiana Suprem e Court. 6 After sentencing, OPCDC m ay further assess crim inal defendants for the costs of drug treatm ent and drug testing. La. Rev. Stat. § 13:530 4. 5 For exam ple, both Alana Cain and Ashton Brown were assessed $ 10 0 for the Indigent Transcript Fund as a condition of their probation. R. Doc. 248 at 4. 6 See R. Doc. 248-1 at 5 (breakdown of court costs that go to OPCDC and other entities). 3 Separately, the Sheriff collects a 3% fee on bail bonds secured by com m ercial sureties. Id. § 22:822(A)(2). Sixty percent of this fee, or 1.8% of the bonds, goes to OPCDC. Id. §§ 22:822(B)(3), 13:1381.5(B)(2)(a). As a result of their crim inal convictions, the named plaintiffs were assessed fines and fees ranging from $ 148 (im posed on Long) to $ 90 1.50 (im posed on Cain). 7 Cain pleaded guilty to felony theft on May 30 , 20 13. 8 At sentencing, the court stated that paym ent of fines and fees was a special condition of probation. 9 The court directed Cain to m ake the first $ 10 0 payment at the courthouse on J uly 8, 20 13, and stated, “[e]ven if you don’t have the m oney, you have to com e here to the courtroom . . . for an extension.”10 The court later ordered Cain to pay $ 1,80 0 in restitution. 11 Brown received a 90 -day suspended sentence after pleading guilty to m isdemeanor theft on Decem ber 16, 20 13. 12 The court im posed $ 50 0 in fees: $ 146 for the J udicial Expense Fund, $10 0 for the Indigent Transcript Fund, $ 234 in court costs, and a $ 20 special assessment for the DA. 13 As with Cain, 7 R. Doc. 248 at 4-5. R. Doc. 255-3 at 2, 16. 9 Id. at 13. 10 Id. at 19. 11 R. Doc. 59-3 at 2. 12 R. Doc. 255-4 at 2, 4, 11. 13 Id. at 11, 15. Again, “court costs” include fees that go to other entities besides OPCDC. See R. Doc. 248-1 at 5. 4 8 the court instructed Brown to m ake his first $ 10 0 payment at the courthouse on J anuary 13, 20 14. 14 The judge told Brown that if he could not pay on that date, he should go to the judge’s courtroom and request an extension. 15 Reynajia Variste was sentenced to two years of probation after she pleaded guilty to aggravated battery on October 21, 20 14. 16 Variste was assessed fees in the am ount of $ 886.50 : $ 286.50 in court costs, $ 20 0 for the Indigent Transcript Fund, and $ 40 0 for the J udicial Expense Fund. 17 The judge warned Variste that “[f]ailure to m ake those payments will result in contem pt of Court proceedings.”18 Vanessa Maxwell was sentenced to eighteen m onths im prisonment for battery and six m onths for simple crim inal dam age after pleading guilty on March 6, 20 12. 19 Maxwell was assessed $ 191.50 in court costs, although the judge did not specify this am ount at sentencing. 20 14 15 16 17 18 19 20 R. Doc. 255-4 at 15. Id. at 16. R. Doc. 95-6 at 8-9, 13. Id. at 13. Id. R. Doc. 95-8 at 8, 12, 15. Id. at 1, 15; R. Doc. 248 at 5. 5 B. Th e OPCD C Bu d ge t The J udges m anage the budget of OPCDC. 21 From 20 12 through 20 15, the court’s revenue ranged from $ 7,567,857 (in 20 12) to $ 11,232,470 (in 20 13). 22 Som e of this revenue could be used only for specified purposes and went into a restricted fund; unrestricted revenue went into OPCDC’s J udicial Expense Fund, which is the general operating fund for court operations. 23 See La. Rev. Stat. § 13:1381.4. The J udges exclusively control this fund and m ay use it “for any purpose connected with, incidental to, or related to the proper adm inistration or function of the court or the office of the judges thereof.” Id. § 13:1381.4(C). They may not use it to supplem ent their own salaries. Id. § 13:1381.4(D). Most m oney for salaries and benefits of OPCDC em ployees (apart from the J udges) com es from the J udicial Expense Fund. 24 From 20 12 through 20 15, the J udicial Expense Fund’s annual revenue was approxim ately $ 4,0 0 0 ,0 0 0 . 25 Roughly half of this revenue came from other governm ental entities, especially the City of New Orleans. 26 About 21 R. Doc. 251-2 at 3; R. Doc. 255-5 at 5. R. Doc. 248 at 2. 23 Id.; R. Doc. 251-2 at 3. The J udicial Expense Fund is also known as the General Fund. R. Doc. 248 at 2. 24 R. Doc. 251-2 at 5; R. Doc. 255-5 at 9. 25 R. Doc. 248-1 at 1-4. Specifically, the J udicial Expense Fund had $ 4,0 90 ,70 7 in revenue in 20 12; $ 4,10 0 ,413 in 20 13; $ 3,928,0 25 in 20 14; and $ 3,940 ,535 in 20 15. 26 Id. at 1-3. 6 22 $ 1,0 0 0 ,0 0 0 came from bail bond fees, and another $ 1,0 0 0 ,0 0 0 from fines and other fees. 27 Since at least 20 13, all fines and fees revenue has gone to the J udicial Expense Fund. 28 C. OPCD C’s D e bt Co lle ctio n Practice s All nam ed plaintiffs were subject to OPCDC’s debt collection practices. At least until Septem ber 18, 20 15, the J udges delegated authority to collect court debts to the Collections Departm ent, which the J udges and Adm inistrator Kazik jointly instructed and supervised. 29 The Collections Department created paym ent plans for crim inal defendants, accepted payments, and granted extensions. 30 Som e J udges also delegated authority to the Collections Department to issue alias capias warrants against crim inal defendants who failed to pay court debts. 31 Before the Collections Department issued these alias capias warrants, its agents were trained to send two form letters to crim inal defendants who had m issed payments. 32 The first letter stated: “Recently, at your sentencing in court, you were given probation. At such tim e the J udge instructed you, 27 28 29 30 31 32 R. Doc. 248 at 2. R. Doc. 251-2 at 12. R. Doc. 248 at 7. Id. Id. R. Doc. 251-2 at 20 ; R. Doc. 255-5 at 27; R. Doc. 1-2 at 6. 7 that as a condition of probation you were to report to our office and m ake arrangements to pay your fines that are now delinquent.” The letter also directed its recipient to appear at the court “to resolve this m atter” by a given date. “Failure to com ply with the conditions of probation,” the letter warned, “will result in your im m ediate arrest.”33 The second letter stated: “Unless arrangements are m ade with [the collections agent] or payment is received in full within 72 hours[,] . . . we will request your im mediate arrest.”34 The Collections Departm ent then checked court dockets to determ ine whether the court had granted an extension on or accepted a payment toward an individual’s court debts. 35 The Collections Department also checked probation and local jail records. 36 If these checks revealed no reason for an individual’s failure to pay, the Collections Department issued an alias capias warrant for the individual’s arrest. 37 These alias capias warrants stated that the individual nam ed in the warrant was charged with contempt of court. 38 The warrants usually set surety bail at the predeterm ined amount of $ 20 ,0 0 0 . 39 Although the J udges 33 34 35 36 37 38 39 R. Doc. 251-5 at 328. Id. at 329. R. Doc. 248 at 7. Id. Id.; R. Doc. 251-5 at 330 (exam ple of a blank alias capias warrant). R. Doc. 251-5 at 330 . Id.; R. Doc. 248 at 7. 8 did not review these warrants, the Collections Department affixed a judge’s signature to each one. 40 OPCDC’s Collections Departm ent issued such warrants to arrest the named plaintiffs for failure to pay fines and fees. 41 Individuals arrested pursuant to these warrants ordinarily rem ained in jail until their fam ily or friends could m ake a paym ent on their court debt, or until a judge released them. 42 The nam ed plaintiffs were im prisoned for periods ranging from six days to two weeks. 43 Alana Cain was arrested pursuant to an alias capias warrant on March 11, 20 15. 44 Apparently unable either to m ake a payment or to post the $ 20 ,0 0 0 bond, she spent a week in jail before she obtained a court hearing on March 18. 45 At that hearing, the judge asked Cain when she would be able to continue m aking payments. 46 Cain explained that she had m issed a payment after giving birth a few weeks earlier, but could continue m aking payments upon her release. 47 The judge ordered her release and directed her 40 R. Doc. 251-2 at 21; R. Doc. 255-5 at 28; R. Doc. 1-2 at 8. R. Doc. 248 at 4. 42 R. Doc. 251-2 at 22; R. Doc. 255-5 at 25; R. Doc. 1-2 at 12-13. 43 R. Doc. 251-2 at 23; R. Doc. 255-5 at 25. 44 R. Doc. 251-5 at 369; see also R. Doc. 59-3 at 2 (warrant issued on March 4, 20 15). 45 R. Doc. 251-2 at 23; R. Doc. 255-5 at 25. 46 R. Doc. 95-3 at 30 . 47 Id. at 29-31. 9 41 to return to court for a status update two weeks later. 48 OPCDC suspended Cain’s court debts on April 7, 20 16, 49 although Cain m ade further paym ents toward her court debts after that date. 50 Ashton Brown spent two weeks in jail before his fam ily secured his release by m aking a $ 10 0 payment to OPCDC. 51 An alias capias warrant issued on J uly 16, 20 15, and Brown was arrested on J uly 23. 52 Brown appeared in court without counsel on August 6; the court agreed to release Brown upon payment of $ 10 0 to OPCDC. 53 Brown’s fam ily m ade this payment the next day, and Brown was released. 54 OPCDC suspended Brown’s court debts on September 23, 20 16, 55 although Brown, like Cain, m ade further payments after that date. 56 Reynajia Variste was arrested pursuant to an alias capias warrant on May 28, 20 15. 57 On J une 2, a fam ily m em ber paid $ 40 0 to OPCDC in order 48 Id. at 32. R. Doc. 250 -3 at 22 50 See R. Doc. 230 -3 at 1-2 (paym ent receipts dated August 26, 20 16, and October 12, 20 16). 51 R. Doc. 251-2 at 23; R. Doc. 255-5 at 25. 52 R. Doc. 59-3 at 6. 53 Id. 54 Id. 55 R. Doc. 250 -3 at 23. 56 R. Doc. 230 -3 at 3 (payment receipt dated February 10 , 20 17). 57 R. Doc. 95-6 at 1. 10 49 to secure her release. 58 Although Variste did not appear before a judge on that date, her attorney did. 59 OPCDC waived Variste’s outstanding debt on August 31, 20 16. 60 Vanessa Maxwell was arrested on May 10 , 20 15, on an alias capias warrant. 61 On May 12, she filed a grievance with the Orleans Parish Sheriff’s Office seeking a new date to m ake a payment. 62 The office responded that she did not yet have a court date, and that to secure her release she just needed to “get som eone to go to fines and fees to m ake arrangem ents.”63 Maxwell filed another grievance two days later, asking the Sheriff’s Office to place her on the court’s docket; the office again directed Maxwell to “get a fam ily [m em ber] to go over and m ake arrangements with fines n fees [sic]. Explain you have been incarcerated[;] they will m ake some type of arrangements for payments.”64 Maxwell finally appeared before a judge, 58 59 60 61 62 63 64 Id. at 1-2, 22. Id. at 1. R. Doc. 250 -3 at 25. R. Doc. 251-5 at 370 . Id. at 362. Id. Id. 11 with counsel, on May 22, 20 15. 65 The judge ordered her release without payment. 66 Maxwell paid off her court debt on J une 2, 20 16. 67 After this suit was filed, the J udges revoked the Collections Department’s authority to issue warrants. 68 The J udges also recalled all active fines and fees warrants issued by the Collections Department before September 18, 20 15, unless restitution rem ained unpaid or the individual had failed to appear in court. 69 In doing so, the J udges wrote off $ 1,0 0 0 ,0 0 0 in court debts. 70 Each J udge now “handles collection-related m atters on their respective dockets.”71 Nevertheless, at least some active warrants for failure to pay restitution still exist. 72 And the J udges them selves now issue alias capias warrants for failure to pay fines and fees. 73 There is no evidence that the J udges now consider, or have ever considered, ability to pay before im prisoning indigent crim inal defendants for failure to pay fines and fees. Indeed, the J udges do not routinely solicit financial inform ation from crim inal defendants who fail 65 66 67 68 69 70 71 72 73 R. Doc. 95-8 at 2. Id. R. Doc. 250 -3 at 24. R. Doc. 250 -2 at 13, 76; R. Doc. 250 -3 at 3. R. Doc. 250 -3 at 4. Id. Id. at 5. Id. See, e.g., R. Doc. 250 -3 at 16, 21. 12 to pay court debts, 74 though they state that they do consider ability to pay when the issue is brought to their attention. 75 D. Pro ce d u ral H is to ry Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging violations of their Fourth and Fourteenth Am endm ent rights, and violations of Louisiana tort law. Plaintiffs brought this action on behalf of them selves and all others sim ilarly situated. 76 The first am ended com plaint, filed shortly after the initial com plaint, nam ed the following defendants: (1) The City of New Orleans, (2) OPCDC, (3) Sheriff Gusm an, (4) Clerk of Court Arthur Morrell, (5) J udicial Adm inistrator Kazik, and (6) the J udges. The Court has sum m arized plaintiffs’ seven counts as follows: (1) Defendants’ policy of issuing and executing arrest warrants for nonpaym ent of court debts is unconstitutional under the Fourth Am endm ent and the Due Process Clause of the Fourteenth Am endm ent; 74 R. Doc. 251-2 at 17. R. Doc. 250 -2 at 12; R. Doc. 259-1 at 8. 76 Although plaintiffs m oved for class certification on February 10 , 20 17, see R. Doc. 230 , the Court stayed all m otion practice—and thus denied plaintiffs’ class certification m otion without prejudice—pending further order, see R. Doc. 237. 13 75 (2) Defendants’ policy of requiring a $ 20 ,0 0 0 “fixed secured m oney bond” for each Collections Departm ent warrant (issued for nonpaym ent of court debts) is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Am endm ent; (3) Defendants’ policy of indefinitely jailing indigent debtors for nonpaym ent of court debts without a judicial hearing is unconstitutional under the Due Process Clause of the Fourteenth Am endm ent; (4) Defendants’ “schem e of m oney bonds” to fund certain judicial actors is unconstitutional under the Due Process Clause of the Fourteenth Amendm ent. To the extent defendants argue this schem e is in com pliance with Louisiana Revised Statutes §§ 13:1381.5 and 22:822, governing the percentage of each surety bond that judicial actors receive, those statutes are unconstitutional; (5) Defendants’ policy of jailing indigent debtors for nonpayment of court debts without any inquiry into their ability to pay is unconstitutional under the Due Process Clause and the Equal Protection Clause of the Fourteenth Am endment, and the 14 J udges’ authority over both fines and fees revenue and ability-topay determ inations violates the Due Process Clause; (6) Defendants’ policy of jailing and threatening to im prison crim inal defendants for nonpaym ent of court debts is unconstitutional under the Equal Protection Clause of the Fourteenth Am endm ent because it im poses unduly harsh and punitive restrictions on debtors whose creditor is the State, as com pared to debtors who owe m oney to private creditors; (7) Defendants’ conduct constitutes wrongful arrest and wrongful im prisonment under Louisiana law. Plaintiffs’ request for relief seeks: (1) declaratory judgm ents that defendants’ actions violate plaintiffs’ Fourth and Fourteenth Am endment rights; (2) an order enjoining defendants from enforcing the purportedly unconstitutional policies; (3) m oney dam ages for the nam ed plaintiffs; and (4) attorney’s fees under 42 U.S.C. § 1988. After a round of motions, all claim s against the City of New Orleans, the Sheriff, and OPCDC were dism issed, along with Count Three and claim s against the rem aining defendants for m onetary and injunctive relief. 77 The Court then granted plaintiffs’ leave to re-plead Counts Four and Seven 77 R. Docs. 119, 123-26. 15 against the Sheriff in plaintiffs’ second am ended com plaint. 78 The Court also consolidated this case with LaFrance v. City of N ew Orleans, 16-14439. 79 Now, plaintiffs seek declaratory relief against the J udges in their official capacity on Counts One, Two, Four, Five, and Six; declaratory relief against Adm inistrator Kazik in his individual capacity on Counts One, Two, and Six; injunctive and declaratory relief against Sheriff Gusm an in his official capacity on Count Four; and injunctive and declaratory relief as well as dam ages against the Sheriff on Count Seven. As ordered by the Court, the parties have subm itted cross-m otions for sum m ary judgment on Counts One, Two, Four, Five, and Six. 8 0 II. STAN D ARD OF REVIEW Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 78 R. Doc. 228. R. Doc. 249. 80 R. Doc. 237. The Court has stayed all other m otion practice. In contravention of the Court’s order, plaintiffs have m oved for sum m ary judgm ent on Count Seven. Plaintiffs’ sum m ary judgment m otion is DENIED WITHOUT PREJ UDICE to the extent it seeks relief on Count Seven. 16 79 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrain[s] from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. Nationw ide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgment.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at 10 75. “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-m oving party.” EEOC v. Sim baki, Ltd., 767 F.3d 475, 481 (5th Cir. 20 14). If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonm oving party can then defeat the m otion by either countering with evidence sufficient to dem onstrate the existence of a genuine dispute of m aterial fact, or “showing that the m oving party’s 17 evidence is so sheer that it m ay not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 10 75 (“Rule 56 m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.” (quoting Celotex, 477 U.S. at 322)). III. D ISCU SSION A. Ju s ticiability Defendants’ m otion for sum m ary judgment challenges the justiciability of this action on several grounds. First, defendants argue that 18 the named plaintiffs lack standing. Second, they argue that certain claim s are m oot in light of defendants’ voluntary cessation of challenged conduct. Third, defendants argue that plaintiffs im perm issibly seek a writ of m andam us against state judicial officers. Fourth, defendants argue that the Court cannot grant declaratory relief in this case. Finally, defendants argue that the Eleventh Am endm ent bars official-capacity claim s against state judicial officers. 1. St a n d in g a n d M o o t n e s s Article III of the U.S. Constitution lim its federal jurisdiction to cases or controversies. U.S. Const. art. III, § 2. To satisfy this case-or-controversy requirement, a plaintiff m ust have a personal stake in the suit she com m ences. See Davis v. Fed. Election Com m ’n, 554 U.S. 724, 732-33 (20 0 8). This personal stake m ust exist both at comm encem ent and throughout the life of the suit. Id. (“To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not m erely at the tim e the com plaint is filed.’” (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997))). If a plaintiff does not have the requisite personal stake at the com m encement of the suit, she lacks standing. If her once-sufficient personal stake dissipates during the life of the suit such that Article III is no longer satisfied, her claim s becom e m oot. 19 See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 , 189 (20 0 0 ) (first addressing standing at the comm encem ent of suit and then addressing m ootness). Defendants confuse these two doctrines—standing and m ootness—in their m otion for sum m ary judgm ent. First, they argue that the nam ed plaintiffs lack standing because their debts have been “suspended” or “waived.”8 1 Second, defendants argue that their voluntary cessation of certain debt collection practices m oots plaintiffs’ claim s challenging those practices. 8 2 Neither argument applies to plaintiffs’ damages claim under Louisiana law, in which plaintiffs obviously have a continuing interest. The waiver or suspension of plaintiffs’ court debts after the com m encement of this suit relates to mootness, not standing. Plaintiffs have standing to bring suit as long as they “had the requisite stake in the outcome when the suit was filed.” Davis, 554 U.S. at 734. Standing to bring suit, however, has no bearing on whether plaintiffs’ claim s becam e m oot during the life of the suit. See, e.g., County of Riverside v. McLaughlin, 50 0 U.S. 44, 51 (1991) (distinguishing standing from m ootness). 81 82 R. Doc. 250 -1 at 4. Id. at 10 . 20 Whether the “suspension” or “waiver” of plaintiffs’ court debts destroyed their interest in the outcom e of this suit is properly addressed as a question of m ootness. 2. Pla in t iffs H a d St a n d in g t o Br in g Su it The Court is nonetheless obligated to determ ine whether the parties had standing to bring suit. Laidlaw , 528 U.S. at 180 . Standing consists of three elem ents: (1) the plaintiff m ust have suffered an injury-in-fact, which is an invasion of a legally protected interest that is concrete and particularized as well as actual or im m inent; (2) the injury m ust be fairly traceable to the challenged conduct of the defendant; and (3) it m ust be likely that the plaintiff’s injury will be redressed by a favorable judicial decision. Lujan v. Defs. of W ildlife, 50 4 U.S. 555, 560 (1992). With regard to “equitable relief for past wrongs, a plaintiff m ust dem onstrate either continuing harm or a real and imm ediate threat of repeated injury in the future.” Soc’y of Separationists, Inc. v. Herm an, 959 F.2d 1283, 1285 (5th Cir. 1992). As the party invoking federal jurisdiction, the plaintiff bears the burden of establishing each element of standing. Spokeo, Inc. v. Robins, 136 S. Ct. 1540 , 1547 (20 16). In support of their standing argument, defendants note that this Court dism issed Reynaud Variste’s and Thaddeus Long’s claim s for equitable relief because neither plaintiff owed outstanding courts debts for which they could 21 be im prisoned. 8 3 But those plaintiffs lacked standing to seek equitable relief because they faced no im m inent injury w hen the suit com m enced. The am ended com plaint itself acknowledged that both plaintiffs had already paid their court debts, and thus no longer faced an im m inent threat of injury from defendants’ debt collection policies and practices. 84 The Court is satisfied that the other nam ed plaintiffs—Alana Cain, Ashton Brown, Reynajia Variste, and Vanessa Maxwell—had standing to bring suit. Defendants do not contest that these plaintiffs owed court debts when this suit was filed in September 20 15. Thus, there is no dispute that these plaintiffs were subject to defendants’ debt collection policies and practices when this suit began. Plaintiffs dem onstrated a concrete and im m inent injury arising from defendants’ policies and practices: the risk of arrest and im prisonm ent for failing to pay outstanding court debts. This risk was not hypothetical or speculative; plaintiffs them selves were arrested and im prisoned for that very reason shortly before the suit com menced. Com pare Roark & Hardee LP v. City of Austin, 522 F.3d 533, 543 (5th Cir. 20 0 8) (concluding that “because some Plaintiff bar owners have been charged under the ordinance and all 83 84 R. Doc. 10 9 at 20 . R. Doc. 7 at 15 ¶ 48, 18 ¶ 67. 22 Plaintiff bar owners face the real potential of im m ediate crim inal prosecution, they have standing to bring their claim s”), w ith Soc’y of Separationists, 959 F.2d at 1285-86 (holding that the likelihood of plaintiff juror again being selected for jury service and again assigned to defendant judge was too slim to perm it prospective relief against defendant). Finally, plaintiffs’ requested relief—a declaration that defendants’ debt collection policies and practices are unconstitutional—would redress the threat of injury they faced. The Court now turns to whether plaintiffs’ personal stake in the litigation, sufficient to support Article III standing at com m encement, dissipated over time. 3. D e fe n d a n t s ’ Vo lu n t a r y Ce s s a t io n M o o t s Co u n t s On e , Tw o , a n d Fo u r The Court first addresses whether any claim s are m oot in light of defendants’ voluntary cessation of certain debt collection practices. As a general rule, “any set of circumstances that elim inates actual controversy after the com m encem ent of a lawsuit renders that action m oot,” Ctr. for Individual Freedom v. Carm ouche, 449 F.3d 655, 661 (5th Cir. 20 0 6), and requires that the case be dism issed, Genesis Healthcare Corp. v. Sy m czy k, 569 U.S. 66, 72 (20 13). Although “[i]t is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determ ine the legality of the practice,’” Laidlaw , 528 U.S. at 23 189 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)), this rule is not absolute. “A case m ight become moot if subsequent events m ade it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 20 3 (1968)). Additionally, “[w]ithout evidence to the contrary, [courts] assume that form ally announced changes to official governm ental policy are not m ere litigation posturing.” Sossam on v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 20 0 9). Nonetheless, a defendant’s burden of showing m ootness by virtue of its voluntary cessation is “form idable.” Laidlaw , 528 U.S. at 190 . Defendants, through an affidavit by Adm inistrator Kazik, state that they have taken the following actions in response to this lawsuit: 8 5 • Defendants rescinded the Collections Department’s authority to issue warrants. 86 • Defendants identified all Collections Department fines and fees warrants based solely on failure to pay fines and fees (other than restitution) and directed Sheriff Gusm an to recall these warrants. 87 85 86 87 R. Doc. 250 -1 at 11. R. Doc. 250 -2 at 13, 76; R. Doc. 250 -3 at 3. R. Doc. 250 -2 at 13-14; R. Doc. 250 -3 at 4. 24 • Defendants have “written off” approximately $ 1,0 0 0 ,0 0 0 in fines and fees owed to the court. 88 • Defendants have worked together “to im plement new procedures to correct com plaints about delays in getting arrestees timely to court.”8 9 The Collections Department’s practice of issuing fines and fees warrants forms the basis of Counts One, Two, and Four. Count One asserts that defendants issue arrest warrants for failure to pay fines and fees without probable cause, without review by a neutral m agistrate, and without oath or affirm ation. 90 The allegations in support of Count One relate solely to warrants issued by the Collections Departm ent. 91 Sim ilarly, Counts Two and Four relate to the fixed, $ 20 ,0 0 0 m oney bail im posed on individuals who are arrested on Collections Departm ent warrants. 92 Counts Five and Six, by 88 R. Doc. 250 -2 at 13-14; R. Doc. 250 -3 at 4. R. Doc. 250 -1 at 11; R. Doc. 250 -3 at 6, 29. 90 R. Doc. 161-4 at 56-57 ¶¶ 185-86; R. Doc. 251-1 at 18-25. 91 See, e.g., R. Doc. 161-4 at 34 ¶ 118 (“Pursuant to Collections Department policy and practice, if a person fails to make the payments determ ined by the Collections Department, Collections Departm ent em ployees will seek a warrant for the debtor’s arrest. . . . The ‘warrants’ are never presented to a judge or neutral m agistrate for review, and no judicial officer is even aware of any particular warrant application or issuance. They are not supported by oath or affirm ation.”). 92 See id. at 27 ¶ 95 (“The OPCDC Defendants im pose an autom atic $ 20 ,0 0 0 secured m oney bond on anyone illegally arrested and im prisoned on a Collections Department warrant for non-paym ent or late payment of 25 89 contrast, do not depend on abandoned Collections Departm ent practices. Count Five asserts that the J udges fail to consider ability to pay before im prisoning plaintiffs for failure to pay court debts. 93 Count Five further asserts that the J udges do not provide a neutral tribunal to determ ine ability to pay because their financial interest in fines and fees revenue deprives plaintiffs of due process. 94 Count Six broadly alleges that defendants’ practice of imprisoning crim inal defendants for failure to pay fines and fees is invidious discrim ination. 95 Thus, if it is absolutely clear that the Collections Departm ent’s warrant practices have ceased and cannot reasonably be expected to recur, then Counts One, Two, and Four, but not Counts Five and Six, would be m oot. Defendants insist that the Collections Department “will never again issue warrants.”96 The Court does not doubt defendants’ sincerity. But the court debts.”); id. at 57 ¶ 191 (“The Defendants violate the Plaintiffs’ rights by placing and keeping them in jail prior to any debt-collection proceedings when they cannot afford to pay the preset amount of money required for release after a Collections Department nonpaym ent arrest . . . .”); id. at 58 ¶ 195 (“Defendants operate a system of m oney bond in which the OPCDC Defendants set a bond am ount on Collections Department warrants that the Defendants know will result in their collecting and controlling 1.8% of the bond am ount if it is ultim ately paid.”). 93 Id. at 59 ¶¶ 198-99. 94 Id. at 59-60 ¶ 20 0 . 95 Id. at 60 ¶ 20 2. 96 R. Doc. 250 -1 at 11. 26 Fifth Circuit has cautioned that “allegations by a defendant that its voluntary conduct has m ooted the plaintiff’s case require closer exam ination than allegations that happenstance or official acts of third parties have m ooted the case.” Fontenot, 777 F.3d at 747-48 (quoting Envt’l Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 20 0 8)). Upon close exam ination, the Court is satisfied that defendants’ voluntary conduct has m ooted plaintiffs’ claim s related to Collections Department fines and fees warrants. A m em orandum issued by Adm inistrator Kazik on September 18, 20 15 stated: “Pursuant to the En Banc directive issued earlier today, all Collections Agents for Crim inal District Court m ay no longer issue an Alias Capias for non-paym ent of fines and fees or for failure to appear. This is effective im m ediately.”97 The Court m ust assume that this “form ally announced change[] to official governm ental policy [was] not mere litigation posturing.” Sossam on, 560 F.3d at 325. Moreover, the J udges reviewed all active fines and fees warrants issued by the Collections Departm ent before Septem ber 18, 20 15, and recalled all such warrants unless restitution rem ained unpaid or the individual had failed to appear in court. 98 In doing so, the J udges wrote off $ 1,0 0 0 ,0 0 0 in court 97 98 R. Doc. 250 -2 at 76. R. Doc. 250 -3 at 4. 27 debts. 99 Each J udge now “handles collection-related matters on their respective dockets,” according to Adm inistrator Kazik. 10 0 Adm ittedly, the tim ing of these policy changes suggests that they were m ade in response to this litigation. Adm inistrator Kazik states in his affidavit that the J udges decided to revoke the Collections Departm ent’s authority to issue warrants on “the day the J udges first heard about this lawsuit.”10 1 Furtherm ore, there is no indication that defendants’ new policy will be binding on future OPCDC judges and adm inistrators. Cf. Lew is v. La. State Bar Ass’n, 792 F.2d 493, 496 (5th Cir. 1986) (finding no reasonable expectation that the alleged violation would recur because defendant bar association had changed its policy, and the state supreme court would need to approve any subsequent policy change). There is also precedent for stopping and restarting the Collections Department’s warrant process: in October 20 12, the form er chief judge of OPCDC directed the Collections Department to discontinue issuing fines and fees warrants, but reversed course in February 20 13. 10 2 99 10 0 10 1 10 2 Id. Id. at 5. Id. at 3. R. Doc. 250 -2 at 77-78. 28 Nevertheless, the Court finds that defendants’ voluntary policy changes m ake it absolutely clear that Collections Department practices could not reasonably be expected to recur. Defendants have form ally revoked the Collections Departm ent’s authority to issue warrants. The sincerity of this policy change is reflected in defendants’ decision to rescind all warrants issued by the Collections Department for failure to pay fines and fees, other than for restitution. Defendants have m et their formidable burden of showing that their voluntary conduct has m ooted Counts One, Two, and Four. 4. D e fe n d a n t s ’ Vo lu n t a r y Ce s s a t io n D o e s N o t M o o t Co u n t s Fiv e a n d Six As discussed earlier, Counts Five and Six focus on what the J udges do, not what the Collections Department did, when crim inal defendants fail to pay fines and fees. Specifically, Count Five challenges the J udges’ practice of failing to inquire into ability to pay before plaintiffs are im prisoned for nonpaym ent, and the J udges’ conflict of interest in deciding plaintiffs’ ability to pay. 10 3 Count Six challenges the J udges’ practice of im prisoning crim inal defendants for failure to pay fines and fees as invidious discrim ination. 10 4 The predicate constitutional injuries underlying both of these claim s are that 10 3 10 4 R. Doc. 161-4 at 59-60 ¶¶ 198-20 0 . Id. at 60 ¶ 20 2. 29 plaintiffs are subject to im prisonm ent for failure to pay court debts, and that the J udges do not inquire into plaintiffs’ ability to pay before their im prisonment. A defendant’s voluntary cessation of challenged conduct moots a claim only if it is absolutely clear that the challenged conduct could not reasonably be expected to recur. Laidlaw , 528 U.S. at 189. Here, to m oot Counts Five and Six, defendants m ust show that plaintiffs are no longer subject to im prisonment for nonpaym ent of court debts, or at least that the J udges inquire into plaintiffs’ ability to pay before their im prisonm ent. The Court finds that defendants have not m et their form idable burden of showing m ootness on Counts Five and Six. First, and m ost im portantly, the J udges do not represent that they have ceased im prisoning individuals for failure to pay court debts by som e m eans other than Collections Department warrants. Nor do they represent that they now consider ability to pay before im prisoning such individuals. Unlike the en banc directive withdrawing the Collections Department’s authority to issue warrants, there is no form al statem ent in the record indicating that the J udges’ challenged practices have changed. Defendants principally rely on the affidavit of Adm inistrator Kazik to show m ootness. But Adm inistrator Kazik cannot—and does not—represent 30 what the J udges’ current practices are, nor what the J udges will do going forward. Instead, Adm inistrator Kazik states that “[t]o the best of J udicial Defendants’ ability, no fines and fee warrants issued by a currently sitting or prior judge exist, unless there was a determ ination that other good cause existed in the court record supporting the warrant, such as a failure to appear in court or a failure to pay restitution.”10 5 At m ost, this carefully worded affidavit shows only that at one point in tim e—when Adm inistrator Kazik m ade this statement—there were no active fines and fees warrants purely for failure to pay court debts, other than restitution. Defendants’ corrective efforts to recall fines and fees warrants do not suffice to show a change in the J udges’ practices. Indeed, as discussed later, the J udges still have enorm ous incentives to collect fines and fees. Without evidence of an actual policy change, the Court cannot sim ply assum e that the J udges have altered their debt collection practices. Second, the J udges now handle collection efforts on their respective dockets, 10 6 and there is evidence in the record that these efforts include issuing alias capias warrants against crim inal defendants for nonpayment of fines and fees. 10 7 Defendants produced worksheets listing all alias capias 10 5 10 6 10 7 R. Doc. 250 -3 at 5. Id. at 5. See id. at 16, 21. 31 warrants issued by Sections G and I of OPCDC as of May 18, 20 17. 10 8 Both sections had issued (and apparently then recalled) alias capias warrants for failure to pay fines and fees as late as April 20 17. 10 9 Moreover, in early 20 17, the J udges met en banc to discuss issues with securing court appearances for arrestees in a tim ely m anner. The J udges requested that “arrestees be placed on our respective jail lists on the day of or the next day after their arrest on a capias [warrant].”110 This request suggests that crim inal defendants are still subject to im prisonm ent on alias capias warrants issued by OPCDC, with no pre-im prisonm ent court hearing. Third, defendants’ corrective efforts are so riddled with exceptions and om issions as to cast doubt on the sincerity of their actions. Adm inistrator Kazik’s affidavit concedes the existence of active warrants for failure to pay restitution and for failure to appear on court dates related to fines and fees. And the police continue to arrest individuals on these warrants. Plaintiffs sought to join one such individual—Monique Merren—as a nam ed plaintiff in this case. 111 An alias capias warrant issued against Merren in 1999 after 10 8 10 9 110 111 Id. at 12-21. Id. at 16, 21. Id. at 29. See R. Doc. 161. 32 she failed to pay restitution for a 1998 conviction. 112 Merren was arrested and im prisoned on this warrant in J une 20 16. 113 Defendants offer no explanation for treating crim inal defendants who owe restitution differently from those who don’t. Additionally, OPCDC still operates a Collections Department. And, as discussed earlier, the J udges stopped the Collections Department’s warrant process in 20 12 before restarting it in 20 13. This policy reversal undercuts a finding that the J udges have changed their practices for good. 114 Understandably, the J udges would like to see this lawsuit go away. But they have not done enough to show institutional change. Again, the J udges have not indicated that they have ceased im prisoning crim inal defendants for failure to pay, or that they now inquire into those crim inal defendants’ ability to pay. Evidence in the record confirm s that plaintiffs still face the 112 R. Doc. 161-7 at 1. The Court takes judicial notice of Merren’s OPCDC docket sheet, attached as an exhibit to plaintiffs’ m otion for leave to file their second am ended com plaint. 113 Id. 114 The Court did not find this policy reversal sufficient to defeat m ootness on Counts One, Two, and Four in light of the J udges’ en banc directive revoking the Collections Departm ent’s warrant authority and their follow-up efforts rescinding Collections Department warrants. Here, the J udges have not issued any form al statem ent indicating that they have changed their practices of im prisoning plaintiffs for nonpayment and not inquiring into plaintiffs’ ability to pay. Additionally, the J udges’ follow-up efforts were aim ed principally at elim inating Collections Department warrants. 33 possibility of alleged constitutional injury if they fail to pay their court debts. For these reasons, defendants’ voluntary conduct does not m oot Counts Five and Six. 5. Th e N a m e d Pla in t iffs ’ Cla im s Ar e N o t M o o t The Court next addresses whether plaintiffs’ claim s are moot in light of the apparent cancellation of their court debts. A case will become m oot when “there are no longer adverse parties with sufficient legal interest to m aintain the litigation,” or “when the parties lack a legally cognizable interest in the outcom e” of the litigation. In re Scruggs, 392 F.3d 124, 128 (5th Cir. 20 0 4) (quoting Chevron, U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th Cir. 1993)). The purpose of this personal stake requirement is to ensure that the case involves “sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions.” U.S. Parole Com m ’n v. Geraghty , 445 U.S. 388, 40 3 (1980 ). A case should not be declared m oot so “long as the parties m aintain a ‘concrete interest in the outcom e’ and effective relief is available to remedy the effect of the violation.” Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998) (quoting Firefighters Local Union N o. 1784 v. Stotts, 467 U.S. 561, 571 (1984)). The bar to overcom e m ootness is lower than the bar to establish standing: “there are circumstances in which the prospect that a 34 defendant will engage in (or resume) harm ful conduct m ay be too speculative to support standing, but not too speculative to overcom e m ootness.” Laidlaw , 528 U.S. at 190 . Defendants assert that OPCDC suspended the rem aining balance of court debts owed by Alana Cain and Ashton Brown, and waived that of Reynajia Variste. 115 Additionally, defendants contend that Vanessa Maxwell’s court debts have been paid in full. 116 Plaintiffs do not contest these facts. 117 Instead, plaintiffs m ake two argum ents: (1) at least Cain and Brown retain a personal interest in the outcom e of the litigation; and (2) the named plaintiffs’ claims cannot be m ooted because a m otion for class certification is pending. 118 Plaintiffs first argue that defendants may reinstate Cain’s and Brown’s suspended debts. While OPCDC suspended Cain’s and Brown’s court debts, it waived Maxwell’s. The Court presum es that a state court uses language decidedly, and that OPCDC used suspension and waiver to describe different actions. 115 116 117 118 R. Doc. 250 -2 at 12. Id. See R. Doc. 259-1 at 8. R. Doc. 259 at 4. 35 To suspend a debt im plies that OPCDC has temporarily ceased enforcing its claim against an individual for her court debts. See Merriam W ebster Dictionary Online, www.merriam -webster.com (defining suspend as “to cause to stop tem porarily”; “to defer to a later tim e on specified conditions”; “to hold in an undeterm ined or undecided state awaiting further inform ation”). By contrast, to waive a debt suggests a decision perm anently to forgo debt collection. See id. (defining waive as “to refrain from pressing or enforcing (something, such as a claim or rule): forgo · waive the fee”); see also Veverica v. Drill Barge Buccaneer N o. 7, 488 F.2d 880 , 883 (5th Cir. 1974) (holding that deferral of payment for a salvage operation did not w aive the resulting m aritim e lien, “but m erely suspend[ed] the rem edy on the lien” until paym ent came due (emphasis added)). Thus, the plain m eanings of “suspend” and “waive” indicate that defendants may reinstate Cain’s and Brown’s, but not Maxwell’s, court debts. Suprem e Court precedent m akes plain that tem porary relief from injury does not m oot a plaintiff’s claim for perm anent equitable relief. In City of Los Angeles v. Ly ons, 461 U.S. 95 (1983), the Supreme Court reviewed a district court injunction against the use of chokeholds by police officers. After the Court granted certiorari, the city im posed a m oratorium on chokeholds. Id. at 10 0 . As the Court stated in a later opinion, this 36 m oratorium “surely dim inished the already slim likelihood that any particular individual would be choked by police.” Laidlaw , 528 U.S. at 190 . Nevertheless, the Supreme Court held that the city’s m oratorium did not m oot the case because “the m oratorium by its term s [was] not perm anent.” Ly ons, 461 U.S. at 10 1. By the same logic, this Court finds that tem porarily suspending Cain’s and Brown’s court debts does not m oot their claim s for declaratory relief. Moreover, the record shows that defendants continued to collect payments from Cain and Brown after suspending their debts. According to a docket sheet, Cain’s court debts were suspended on April 7, 20 16. 119 Nevertheless, a paym ent receipt dated October 12, 20 16, states that Cain owes a balance of $ 251.50 and that the next paym ent is due on October 31, 20 16. 120 Sim ilarly, a m inute entry shows that Brown’s court debts were suspended as of September 23, 20 16, 121 but a payment receipt dated February 10 , 20 17, shows a balance of $ 432.50 . 122 This evidence indicates that suspension of a court debt does not bar defendants from trying to collect that debt. Because plaintiffs Cain and Brown rem ain subject to defendants’ 119 120 121 122 R. Doc. 250 -3 at 22. R. Doc. 230 -3 at 2. R. Doc. 250 -3 at 23. R. Doc. 230 -3 at 3. 37 debt collection policies and practices, including the J udges’ practices that form the basis of Counts Five and Six, they have not been “divested of all personal interest in the result” of the litigation. Dailey , 141 F.3d at 227. At oral argum ent, the parties represented that Cain has received a reim bursement check from OPCDC. It is unclear, however, when or why Cain received the reim bursem ent check, or which court costs it reimbursed. The check is not in the sum m ary judgm ent record, and the Court cannot sim ply assume that OPCDC has reimbursed Cain for all paym ents m ade after the date her debts were suspended. Moreover, defendants have not asserted that Brown—or anyone else whose debts were suspended—received a reim bursement check from OPCDC. Cain’s reimbursem ent check does not affect the Court’s analysis. That OPCDC continued to collect paym ent from Cain and Brown after suspending their debts also shows that the “capable of repetition, yet evading review” exception applies. Ctr. for Individual Freedom , 449 F.3d at 661. This “exception can be invoked if two elem ents are m et: ‘(1) [T]he challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the sam e com plaining party would be subjected to the same action again.’” Id. (alteration in original) (quoting W einstein v. Bradford, 423 U.S. 147, 149 38 (1975)). Defendants suspended Cain’s court debts in April 20 16—m erely seven m onths after this proceeding began. Seven m onths was too short a tim e to resolve this com plicated suit. Additionally, defendants’ actual debt collection efforts after suspending Cain’s and Brown’s debts creates a reasonable expectation that these plaintiffs will again be subject to defendants’ debt collection practices in the future. Thus, even if defendants’ suspension of Cain’s and Brown’s court debts otherwise m oots their individual claim s, the capable of repetition, yet evading review exception applies. Plaintiffs also argue that the nam ed plaintiffs’ claim s cannot be m ooted because a m otion for class certification is pending. 123 Generally, “a class action becom es m oot when the putative representative plaintiff’s claim has been rendered m oot before a class is certified.” Fontenot v. McCraw , 777 F.3d 741, 748 (5th Cir. 20 15). But, as the Supreme Court has noted, There m ay be cases in which the controversy involving the nam ed plaintiffs is such that it becom es m oot as to them before the district court can reasonably be expected to rule on a certification m otion. In such instances, whether the certification can be said to ‘relate back’ to the filing of the com plaint m ay depend upon the circum stances of the particular case and especially . . . [whether] otherwise the issue would evade review. 123 R. Doc. 259 at 4. 39 Sosna v. Iow a, 419 U.S. 393, 40 2 n.11 (1975); see also Genesis Healthcare, 569 U.S. at 75 (“[A]n inherently transitory class-action claim is not necessarily m oot upon the term ination of the nam ed plaintiff’s claim .”) (internal quotation m arks om itted)). An exam ple of such a claim is a constitutional challenge to pretrial detention, which “is by nature tem porary.” Gerstein v. Pugh, 420 U.S. 10 3, 111 n.11 (1975). The Court in Gerstein noted: “It is by no m eans certain that any given individual, nam ed as plaintiff, would be in pretrial custody long enough for a district judge to certify the class.” Id. In such a case, “the term ination of a class representative’s claim does not m oot the claim s of the unnam ed m em bers of the class.” Id. The Supreme Court again addressed a challenge to pretrial detention in McLaughlin. The nam ed plaintiffs in McLaughlin were incarcerated and had not yet received a probable cause hearing when they filed suit. 50 0 U.S. at 48-49. Before the district court certified the class, the named plaintiffs either received a probable cause determ ination or were released. “That the class was not certified until after the nam ed plaintiffs’ claim s had become m oot [did] not deprive [the Court] of jurisdiction,” however. Id. at 52 (citing Gerstein, 420 U.S. at 110 n.11). As in Gerstein, the Court held that the 40 relation back doctrine “preserve[d] the m erits of the case for judicial resolution.” Id. While Sosna, Gerstein, and McLaughlin all applied the relation back doctrine to inherently transitory claims, the Fifth Circuit has further applied the doctrine to claim s “rendered m oot by purposive action of the defendants.” Zeidm an v. J. Ray McDerm ott & Co., Inc., 651 F.2d 10 30 , 10 49 (5th Cir. Unit A J uly 1981). The Zeidm an court held that, when “the plaintiffs have filed a tim ely m otion for class certification and have diligently pursued it, the defendants should not be allowed to prevent consideration of that m otion by tendering to the nam ed plaintiffs their personal claim s before the district court reasonably can be expected to rule on the issue.” Id. at 10 45. The court reasoned that defendants should not “have the option to preclude a viable class action from ever reaching the certification stage” by “picking off” the named plaintiffs, whose claims would otherwise becom e m oot. 124 Id. at 10 50 . 124 The Fifth Circuit has since cast doubt on whether the core holding of Zeidm an rem ains good law as to claim s for m oney dam ages. Specifically, the court has stated that Genesis Healthcare “underm ines, at least in m oney dam ages cases, Zeidm an’s analogy between the ‘inherently transitory’ exception to m ootness and the strategic ‘picking off’ of nam ed plaintiffs’ claim s.” Fontenot, 777 F.3d at 750 . In Genesis Healthcare, the Supreme Court declined to apply the “inherently transitory” exception to a claim for m oney dam ages, which “cannot evade review,” “[u]nlike claim s for injunctive relief challenging ongoing conduct.” 569 U.S. at 77. Where, as 41 Plaintiffs’ claim s for equitable relief tend to evade review, especially if defendants can pick off the named plaintiffs by suspending or waiving their court debts. Moreover, plaintiffs tim ely m oved for class certification. 125 The Court stayed this motion pending resolution of the parties’ cross-m otions for sum m ary judgment. 126 Plaintiffs—both nam ed and unnam ed—should not be punished by the order in which the Court has addressed issues in this case, or by defendants’ willingness to suspend or waive the court debts of the nam ed plaintiffs. Nevertheless, the Court does not rely on the relation back exception in determ ining that this case is not m oot. The relation back exception applies to a class certification m otion that is adjudicated after the nam ed plaintiffs’ claim s becom e m oot. See Fontenot, 777 F.3d at 748. The Court is not aware of any authority for applying this exception to sum m ary judgm ent m otions. To the contrary, the Zeidm an court m ade clear that “[a] nam ed plaintiff whose individual claim has been rendered m oot m ay in no event argue the m erits of the case before a class has properly been certified; prior to that tim e the plaintiff m ay at m ost argue the class certification question.” Id. at 10 45; here, plaintiffs seek equitable relief, the “inherently transitory” exception still applies and Zeidm an rem ains good law. 125 R. Doc. 230 . 126 R. Doc. 237. 42 see also Geraghty , 445 U.S. at 40 4 (“A nam ed plaintiff whose claim expires m ay not continue to press the appeal on the m erits until a class has been properly certified.”). The Court therefore finds that the nam ed plaintiffs’ claim s are not m oot for two reasons. First, Alana Cain and Ashton Brown still owe court debts; defendants’ tem porary suspension of these debts does not destroy Cain’s or Brown’s personal stake in the litigation. Second, with respect to Cain’s and Brown’s debts, defendants’ debt collection practices are capable of repetition, yet evading review. 6. Pla in t iffs D o N o t R e q u e s t M a n d a m u s Defendants argue that plaintiffs’ claims for declaratory relief against the J udges and Adm inistrator Kazik are tantam ount to requests for a writ of m andam us. 127 It is well-established that “federal courts have no general power to issue writs of m andam us to direct state courts and their judicial officers in the perform ance of their duties.” Lam ar v. 118th Judicial Dist. Court of Tex., 440 F.2d 383, 384 (5th Cir. 1971); see also In re Cam pbell, 264 F.3d 730 , 731 (7th Cir. 20 0 1) (discussing when m andam us against state judicial officers may be appropriate). But federal courts m ay grant declaratory and injunctive relief against state judicial officers. See Pulliam 127 R. Doc. 250 -1 at 6. 43 v. Allen, 466 U.S. 522, 541-42 (1984); Hollow ay v. W alker, 765 F.2d 517, 525 (5th Cir. 1985). Indeed, Section 1983 explicitly recognizes the availability of such rem edies. See 42 U.S.C. § 1983 (providing that, “in any action brought against a judicial officer for an act or om ission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable”). Plaintiffs’ summ ary judgment m otion clearly fram es the claim s against the J udges and Adm inistrator Kazik as requests for declaratory relief. But defendants argue that plaintiffs essentially want this Court to direct defendants in the exercise of their judicial duties. Specifically, according to defendants, plaintiffs seek a court order directing the J udges to hold hearings on ability to pay, to cease delegating warrant authority to the Collections Departm ent, and to stop issuing capias warrants. 128 A writ of m andam us com pels the defendant to perform a certain act. See Mandam us, Black’s Law Dictionary (10 th ed. 20 14). By contrast, the declaratory judgm ents plaintiffs seek on Counts One, Two, Four, Five, and Six would m erely state that certain of defendants’ practices are unconstitutional. 129 The Supreme Court has recognized the authority of 128 129 R. Doc. 250 -1 at 7-8. See R. Doc. 161-4 at 61. 44 federal courts to issue such relief against state judges. See Pulliam , 466 U.S. at 526 (affirm ing attorneys’ fees award in case where district court declared m agistrate’s practice of “requir[ing] bond for nonincarcerable offenses . . . to be a violation of due process and equal protection and enjoined it”). Thus, the Court rejects defendants’ argument that plaintiffs’ claim s for declaratory relief are in fact requests for a writ of m andam us. 7. D e cla r a t o r y R e lie f Is Ap p r o p r ia t e Defendants further argue that the Court lacks the authority to entertain plaintiffs’ claim s for declaratory relief. 130 The Declaratory J udgm ent Act, 28 U.S.C. § 220 1, is “an enabling act, which confers a discretion on the courts” to decide or dism iss a declaratory judgm ent suit, “rather than an absolute right upon the litigant” to bring such a suit. W ilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Pub. Serv. Com m ’n of Utah v. W y coff Co., 344 U.S. 237, 241 (1952)); accord Sherw in-W illiam s Co. v. Holm es County , 343 F.3d 383, 387, 389 (5th Cir. 20 0 3). In analyzing claim s under the Act, a court m ust determ ine “(1) whether the declaratory action is justiciable; (2) whether the court has the authority to grant declaratory relief; and (3) whether to 130 R. Doc. 250 -1 at 8-9. 45 exercise its discretion to decide or dism iss the action.”131 Sherw in-W illiam s, 343 F.3d at 387. Defendants argue that declaratory relief is not appropriate because this case is no longer justiciable. As explained earlier, Counts Five and Six are not m oot. Thus, the Court m ay entertain these claims for declaratory relief. 8. Th e Ele v e n t h Am e n d m e n t D o e s N o t Ba r Pla in t iffs ’ Officia l-Ca p a cit y Cla im s Defendants’ final justiciability challenge relates to whether the J udges enjoy sovereign imm unity on plaintiffs’ official-capacity claim s against them. Defendants argue that suing a state official in her official capacity is the sam e as suing the state directly. 132 This proposition is true for retrospective relief, but not for prospective relief. Under Ex parte Young, 20 9 U.S. 123 (190 8), plaintiffs m ay sue state officials in their official capacity for prospective relief. See W ill v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989) (“Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’” (quoting 131 The Court has already addressed, and rejected, the argum ent that it should exercise its discretion not to decide this case. R. Doc. 119 at 14-19. Defendants do not renew this argum ent in their m otion for summ ary judgm ent. 132 R. Doc. 250 -1 at 10 . 46 Kentucky v. Graham , 473 U.S. 159, 167, n.14 (1985))). Prospective relief includes both injunctive and declaratory relief. See Verizon Md., Inc. v. Pub. Serv. Com m ’n of Md., 535 U.S. 635, 645 (20 0 2) (allowing plaintiff to seek both injunctive and declaratory relief “against the individual com m issioners in their official capacities, pursuant to the doctrine of Ex parte Young”). Thus, defendants’ Eleventh Am endment argum ent is meritless. *** Because Counts One, Two, and Four are m oot, defendants are entitled sum m ary judgment on these counts. Having found that Counts Five and Six rem ain justiciable, the Court turns to the m erits of these claim s. B. Th e Ju d ge s ’ Practice o f Im p ris o n in g In d ivid u als fo r Failu re to Pay Co u rt D e bts W ith o u t Co n s id e rin g Ability to Pay Is U n co n s titu tio n al The core of plaintiffs’ constitutional challenge to the J udges’ debt collection m easures is that the J udges im prison poor debtors solely because they cannot afford to pay court debts. Count Five specifically challenges the J udges’ practice of failing to inquire into indigent debtors’ ability to pay court debts before the debtors are im prisoned for nonpaym ent. 133 133 As discussed in the next section, Count Five also challenges the constitutionality of the legislative fram ework that vests both judicial and executive power in the J udges. 47 1. Th e Ju d g e s H a v e a Po licy o r Pr a ct ice o f Fa ilin g t o Co n d u ct An y In q u ir y in t o Pla in t iffs ’ Ab ilit y t o Pa y Co u r t D e b t s Be fo r e Pla in t iffs Ar e Im p r is o n e d fo r N o n p a y m e n t The facts related to Count Five are undisputed. Most im portantly, the J udges do not routinely solicit financial inform ation from crim inal defendants who fail to pay their court debts, 134 though they do consider ability to pay when the issue is brought to their attention. 135 As discussed earlier, plaintiffs continue to face the possibility that they will be im prisoned for failure to pay court debts. 136 Thus, it is the J udges’ practice not to inquire into plaintiffs’ ability to pay such debts even though plaintiffs m ay be im prisoned for failure to pay. 134 R. Doc. 251-2 at 17. Plaintiffs posed the following interrogatory: “Please describe any and all policies, procedures, and practices related to assessing whether a person who owes fines and/ or fees to the court has the ability to pay those fines and/ or fees?”; defendants responded: “There are no written policies or procedures; the general practice, which varies depending upon the m atter, includes input from defense counsel and/ or the defendant when brought to the Court’s attention.” R. Doc. 251-5 at 297. Although defendants deny that the J udges fail to routinely solicit inform ation about crim inal defendants’ ability to pay, see R. Doc. 255-5 at 14, they neither point to contrary evidence in the record nor show that plaintiffs’ evidence is too sheer to support sum m ary judgment. See Fed. R. Civ. P. 56(c)(1); Int’l Shortstop, 939 F.2d at 1265. Defendants therefore fail to carry their sum m ary judgment burden of showing a genuine dispute of fact. 135 R. Doc. 250 -2 at 12; R. Doc. 259-1 at 8. 136 See supra Part III.A.4. 48 The evidence in the record confirms this practice. Each nam ed plaintiff was im prisoned for failure to pay court debts. But at no point—not at sentencing, not before their im prisonm ent, not at a hearing while they were im prisoned—did a judge inquire into their ability to pay. By way of exam ple, Ashton Brown was im prisoned for failure to pay court fees from J uly 23 to August 7, 20 15. 137 No judge inquired into his ability to pay before his im prisonment. 138 Brown did secure an appearance in court, without counsel, on August 6. 139 The judge refused to release Brown, who lived in poverty and struggled to support him self and his nine-m onth-old daughter, unless he paid $ 10 0 to OPCDC. 140 There is no indication in the record that the judge asked about Brown’s income or ability to pay. Brown had to ask his grandm other for help, and only after she m ade a $ 10 0 paym ent was Brown released. 141 137 R. Doc. 59-3 at 6. The court did advise Brown at sentencing that if he did not have the m oney to m ake his first payment, he should seek an extension. R. Doc. 2554 at 16. To be clear, plaintiffs are not challenging the imposition of fines and fees at sentencing without an ability-to-pay inquiry; their challenge is focused on the J udges’ practice of not providing this inquiry at any point before plaintiffs are im prisoned for failure to pay. 139 R. Doc. 59-3 at 6. 140 Id.; R. Doc. 8-3 at 1. 141 R. Doc. 8-3 at 1; R. Doc. 59-3 at 6. 49 138 Alana Cain was im prisoned for failure to pay restitution and fees from March 11 to March 18, 20 15. 142 There is no indication that any judge inquired into her ability to pay before her im prisonm ent. She appeared before a judge while in jail; at that hearing, the transcript of which is in the record, 143 the judge did not ask Cain whether she could pay her court debts, nor did he ask her about her incom e. 144 If the judge had inquired into Cain’s ability to pay, he would have learned that Cain—who had given birth to her first child a few weeks earlier—m ade only $ 20 0 per m onth and struggled to afford food and clothes. 145 The judge did ask Cain w hen she would be able to continue m aking payments. 146 After Cain stated that she could continue m aking payments upon her release, the judge ordered her release and directed her to return to court for a status update two weeks later. 147 Som e crim inal defendants who appeared before a judge while they were imprisoned for failure to pay fines and fees were sent back to jail, apparently because they could not make a payment. For example, Tyrone Singleton was arrested for failure to pay fines and fees on November 11, 142 143 144 145 146 147 R. Doc. 59-3 at 2; R. Doc. 251-5 at 369. R. Doc. 95-3 at 27-35. R. Doc. 8-2 at 1-2. Id. at 1. R. Doc. 95-3 at 30 . Id. at 29-32. 50 20 13. 148 He appeared before a judge two weeks later, on Novem ber 25, but was sent back to jail for another week before his release. 149 This evidence suggests that the J udges do not release crim inal defendants im prisoned for failure to pay court debts without a paym ent, or some prom ise of paym ent. 150 Defendants cite no statutory authority for the J udges’ actions. 151 This process m ost resembles contem pt of court in which an individual is im prisoned until she com plies with a court order—here, an order to pay fines and fees. Because plaintiffs m ay secure their release by m aking a paym ent, their im prisonment for nonpayment is a conditional penalty. Hicks v. Feiock, 485 U.S. 624, 633 (1988). Contem pt of court that im poses a conditional penalty is civil, rather than crim inal, “because it is specifically designed to com pel the doing of som e act,” rather than to punish. Id. 148 R. Doc. 251-5 at 411. The Court takes judicial notice of the facts contained within this exhibit, which were taken from publicly available docket sheets. 149 Id. 150 See R. Doc. 251-2 at 22; R. Doc. 255-5 at 25. 151 Because OPCDC som etim es includes paym ent of court debts as a condition of probation, the court could revoke an individual’s probation for failure to pay. See La. Code Crim. Proc. art. 895.1 (authorizing courts to require paym ent of restitution and certain fees as a condition of probation); id. arts. 899, 90 0 (describing procedures for revoking probation). But there is no indication in the record that OPCDC’s debt collections practices generally, or ever, involve probation revocation. 51 There is no genuine dispute, therefore, that the J udges have a practice of not inquiring into plaintiffs’ ability to pay court debts when plaintiffs are essentially held in civil contem pt and im prisoned for nonpayment. 2. Th e Ju d g e s ’ Fa ilu r e t o In q u ir e in t o Pla in t iffs ’ Ab ilit y t o Pa y Co u r t D e b t s Be fo r e Pla in t iffs Ar e Im p r is o n e d fo r N o n p a y m e n t Vio la t e s D u e Pr o ce s s Plaintiffs argue that the J udges’ failure to inquire into plaintiffs’ ability to pay court debts violates the Fourteenth Am endment. 152 Although “[d]ue process and equal protection principles converge” in cases involving the crim inal justice system’s treatm ent of indigent individuals, Bearden v. Georgia, 461 U.S. 660 , 665 (1983), plaintiffs’ argument sounds in procedural due process. Thus, the fam iliar framework set out in Mathew s v. Eldridge, 424 U.S. 319 (1976), applies. See Turner v. Rogers, 564 U.S. 431, 444-45 (20 11) (applying Mathew s v. Eldridge to civil contem pt proceedings). The Mathew s v. Eldridge framework calls for the Court to consider three factors: “(1) the nature of ‘the private interest that will be affected,’ (2) the com parative ‘risk’ of an ‘erroneous deprivation’ of that interest with and without ‘additional or substitute procedural safeguards,’ and (3) the nature and m agnitude of any countervailing interest in not providing ‘additional or 152 R. Doc. 251-1 at 38-39. 52 substitute procedural requirements.’” Id. (quoting Mathew s, 424 U.S. at 335). Suprem e Court precedent speaks directly to the kind of procedural protections the J udges m ust provide to plaintiffs. This precedent is grounded in the well-established principle that an indigent crim inal defendant m ay not be imprisoned solely because of her indigence. See Tate v. Short, 40 1 U.S. 395, 398 (1971); see also United States v. Voda, 994 F.2d 149, 154 n.13 (5th Cir. 1993) (“Constitutionally, courts are lim ited in the penalty they can im pose for nonpaym ent of crim inal fines because of inability to pay.”). Adm ittedly, there is nothing necessarily unconstitutional about im prisoning a convicted crim inal defendant for failing to pay fines and fees. As the Suprem e Court recognized, this custom “dates back to m edieval England and has long been practiced in this country.” W illiam s v. Illinois, 399 U.S. 235, 239 (1970 ) (footnote om itted). But the Supreme Court has im posed constitutional lim its on this practice when applied to indigent crim inal defendants. In W illiam s, for exam ple, the Court held that “an indigent crim inal defendant m ay not be im prisoned in default of payment of a fine beyond the m axim um [term of im prisonment] authorized by the statute regulating the substantive offense.” 53 399 U.S. at 241. Such im prisonment constitutes “im perm issible discrim ination that rests on ability to pay.” Id. Following W illiam s, the Supreme Court addressed a constitutional challenge to a state’s m ethod of collecting fines from an indigent crim inal defendant. Tate, 40 1 U.S. 395. The crim inal defendant in Tate had accum ulated fines for traffic offenses, which were punishable only by fine. Id. at 396-97. Because the defendant was indigent when the state court im posed the fines, the court sentenced him to a term of imprisonment—each day counted as five dollars toward the defendant’s outstanding fines. Id. The Court invalidated this practice as violating equal protection, explaining that “the Constitution prohibits the State from im posing a fine as a sentence and then autom atically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” Id. at 398 (citation om itted). Over a decade later, in Bearden, the Suprem e Court addressed a sim ilar challenge to a probation revocation proceeding. There, the Court held that an indigent defendant’s probation cannot be revoked (and thus converted into a jail term ) for his failure to pay a court-im posed fine or restitution “absent evidence and findings that the defendant was somehow 54 responsible for the failure or that alternative forms of punishment were inadequate.” 461 U.S. at 665. The Court further held: [A] sentencing court m ust inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to m ake sufficient bona fide efforts legally to acquire the resources to pay, the court m ay revoke probation and sentence the defendant to im prisonm ent . . . . If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court m ust consider alternate m easures of punishm ent other than im prisonm ent. Only if alternate measures are not adequate to m eet the State’s interests in punishm ent and deterrence m ay the court im prison a probationer who has m ade sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom sim ply because, through no fault of his, he cannot pay the fine. Id. at 672-73. The state court im prisoned Bearden “because he could not pay the fine, without considering the reasons for the inability to pay or the propriety of reducing the fine or extending the tim e for paym ents or m aking alternative orders.” Id. at 674. In this way, “the court autom atically turned a fine into a prison sentence.” Id. More recently, the Suprem e Court in Turner reiterated the im portance of the ability-to-pay determ ination prior to im prisonm ent, this tim e in the context of a civil contem pt proceeding. The Court applied the Mathew s v. Eldridge fram ework to determ ine whether an indigent defendant has “a right to state-appointed counsel at a civil contem pt proceeding, which m ay lead to his incarceration.” Turner, 564 U.S. at 441. 55 The Court noted “the im portance of the interest at stake”—the defendant’s interest in preventing the “loss of [his] personal liberty through im prisonm ent.” Id. at 445. Given the im portance of this interest, the Court stated, “it is obviously im portant to assure accurate decisionm aking in respect to the key ‘ability to pay’ question.” Id. The Court held that due process does not require stateappointed counsel so long as the state provides other procedural safeguards equivalent to “adequate notice of the im portance of ability to pay, fair opportunity to present, and to dispute, relevant inform ation [concerning ability to pay], and court findings.” Id. at 448. The Court finds that Bearden is controlling, and that Turner is instructive. Adm ittedly, there are some differences between those cases and this one. For example, unlike the court in Bearden, OPCDC does not im pose a term of im prisonm ent upon crim inal defendants for failure to pay their court debts. And OPCDC’s debt collection procedures appear to operate independently from revocation of probation. See State v. Kenniston, 976 So. 2d 226, 227 (La. App. 4 Cir. 20 0 8) (noting that OPCDC issued two alias capias warrants for failure to pay court debts, and that the state later initiated probation revocation proceedings); see also La. Code Crim. Proc. arts. 89990 0 (describing probation revocation procedures). But “[n]othing in the language of the Bearden opinion prevents its application to any given 56 enforcem ent m echanism .” United States v. Pay an, 992 F.2d 1387, 1396 (5th Cir. 1993). And civil contem pt in this case, like probation revocation in Bearden, works the same constitutional injury: plaintiffs, like the crim inal defendant in Bearden, are subject to im prisonm ent for failure to pay courtim posed fines and fees. Like the defendant in Turner, plaintiffs are subject to im prisonment as the result of civil contem pt-like proceedings. Adm ittedly, neither party in Turner was represented by counsel during the civil contem pt proceeding, and the com plaining party was not the state, 564 U.S. at 448-49; here, by contrast, the com plaining party—OPCDC—is both an organ of the state and represented by counsel (the J udges), and the crim inal defendants generally are also represented by counsel. But Turner does stand for the broader proposition that the ability-to-pay inquiry required by Bearden m ust have some procedural safeguards. Bearing in m ind that Bearden and Turner speak directly to the procedural requirem ents of an ability-to-pay inquiry, the Court now turns to the application of the Mathew s fram ework to the facts of this case. First, plaintiffs’ interest in securing their “freedom ‘from bodily restraint[]’ lies ‘at the core of the liberty protected by the Due Process Clause.’” Turner, 564 U.S. at 445 (quoting Foucha v. Louisiana, 50 4 U.S. 71, 80 (1992)). Plaintiffs’ 57 liberty interest weighs heavily in favor of procedural safeguards provided before im prisonment. Second, the risk of erroneous deprivation without an inquiry into ability to pay is high. At least some crim inal defendants, including the nam ed plaintiffs, are subject to im prisonm ent for failure to pay fines and fees despite their indigence. OPCDC necessarily determ ined that all nam ed plaintiffs, except Reynaud Variste, were indigent when it appointed counsel for them during their crim inal proceedings. 153 Moreover, Louisiana courts presum e that a crim inal defendant who cannot afford counsel is indigent for purposes of ability to pay court debts. See State v. W illiam s, 288 So. 2d 319, 321 (La. 1974) (noting that appointment of counsel established defendant’s indigence); State v. Morales, 221 So. 3d 257, 258 (La. App. 3 Cir. 20 17) (noting that appointm ent of counsel is “presum ptive evidence of indigence”); State v. Hebert, 669 So. 2d 499, 50 2 (La. App. 4 Cir. 1996) (“[A] defendant represented by appointed counsel . . . is presumed indigent and cannot be ordered to serve additional jail tim e in lieu of the paym ent of costs.”). The inquiry itself surely m ust involve at least notice and opportunity to be heard, 153 See R. Doc. 228 at 6; R. Doc. 251-2 at 17; R. Doc. 255-5 at 24; La. Rev. Stat. § 15:175(A)(1)(b) (“A person will be deem ed ‘indigent’ who is unable, without substantial financial hardship to him self or to his dependents, to obtain com petent, qualified legal representation on his own.”). 58 as suggested by Turner; an ability-to-pay inquiry without these basic procedural protections would likely be ineffective. Third, the J udges fail to point to any countervailing interest in not inquiring into plaintiffs’ ability to pay before imprisonm ent. According to Adm inistrator Kazik, the J udges consider ability to pay if a crim inal defendant raises the issue. 154 But Bearden and Turner require more. Bearden com m ands that before a court im prisons an individual for failure to pay a court-im posed fine or fee, the court m ust inquire into her reasons for failure to pay. 461 U.S. at 672. If the individual is unable to pay the court debts despite sufficient bona fide efforts to do so, then the court m ust consider alternative m easures. Id. Turner holds that this ability-to-pay inquiry m ust have at least som e procedural safeguards. The record shows that at least until 20 15, the Collections Departm ent gave notice to crim inal defendants before issuing alias capias warrants for failure to pay, and these crim inal defendants usually appeared before a judge while they were im prisoned for failure to pay. The J udges therefore provided notice and an opportunity to be heard to plaintiffs—just not “in respect to the key ‘ability to pay’ question.” Turner, 564 U.S. at 445. In light of this lim ited notice and 154 R. Doc. 250 -3 at 5 (Kazik Affidavit stating that “[i]f a crim inal defendant raises the issue of their ability to pay, the judges consider it”). 59 opportunity to be heard formerly provided by OPCDC, the Court cannot discern any state interest in the J udges’ failure to provide notice and an opportunity to be heard on ability to pay before im prisonm ent. Moreover, there is no authority for the proposition that a crim inal defendant m ust raise the issue of her inability to pay. As the Court explained in an earlier order, the J udges’ reliance on Garcia v. City of Abilene, 890 F.2d 773 (5th Cir. 1989), and Sorrells v. W arner, 21 F.3d 110 9 (5th Cir. 1994) (unpublished), is unavailing. 155 In both cases, the crim inal defendant had an opportunity to claim indigence but squandered it by failing (or repeatedly failing) to appear, in person, at scheduled court hearings. Sorrells, 21 F.3d at *1; Garcia, 890 F.2d at 775; see also Doe v. Angelina County , 733 F. Supp. 245, 253 (E.D. Tex. 1990 ) (distinguishing Garcia because “a party cannot fail to appear if no provision is m ade for such a proceeding” in the first place); De Luna v. Hidalgo County , 853 F. Supp. 2d 623, 646-47 (S.D. Tex. 20 12) (citing Doe v. Angelina County ). Regardless, Turner clearly suggests that the state provide the procedural protection of notice that ability to pay is im portant; a contrary rule, requiring the crim inal defendant to raise the issue on her own, would underm ine Bearden’s com mand that a crim inal 155 R. Doc. 136 at 15-16. 60 defendant not be im prisoned solely because of her indigence. 461 U.S. at 672-73. It is undisputed that the J udges provide no ability-to-pay inquiry, nor any further procedural safeguards, to indigent crim inal defendants who are subject to im prisonm ent for failure to pay court debts. Under Bearden and Turner, the J udges m ust inquire into plaintiffs’ ability to pay before their im prisonment. This inquiry m ust involve certain procedural safeguards, especially notice to the individual of the im portance of ability to pay and an opportunity to be heard on the issue. If an individual is unable to pay, then the J udges m ust consider alternative m easures before im prisoning the individual. Plaintiffs are entitled sum m ary judgment on Count Five to the extent they seek a declaration that the J udges’ practice of not inquiring into plaintiffs’ ability to pay before they are im prisoned for nonpayment violates the Fourteenth Am endm ent. C. Th e Ju d ge s ’ Co n tro l o ve r Bo th Fin e s an d Fe e s Re ve n u e an d Ability-to -Pay D e te rm in atio n s Vio late s D u e Pro ce s s Count Five also challenges the dual role the J udges play: they are responsible for both determ ining crim inal defendants’ ability to pay fines and fees and m anaging a portion of the revenue derived from those fines and 61 fees. 156 Plaintiffs argue that the J udges’ power over this revenue creates a financial conflict of interest, depriving crim inal defendants of a neutral tribunal to determ ine their ability to pay. 157 1. Le g a l Ba ck g r o u n d “Trial before an unbiased judge is essential to due process.” Pub. Citizen, Inc. v. Bom er, 274 F.3d 212, 217 (5th Cir. 20 0 1) (quoting Johnson v. Mississippi, 40 3 U.S. 212, 216 (1971)); see also Brow n v. Edw ards, 721 F.2d 1442, 1451 (5th Cir. 1984) (“The right to a judge unbiased by direct pecuniary interest in the outcom e of a case is unquestionable.”). Although due process requires a judge’s disqualification “only in the m ost extreme of cases,” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986), the Supreme Court has found due process violations when judges m aintained pecuniary interests in cases before them . In Tum ey v. Ohio, 273 U.S. 510 (1927), a defendant was convicted of possessing liquor in violation of Ohio’s Prohibition Act. The Act provided for trial in a “liquor court,” in which the village m ayor served as judge. Id. at 521. The m oney raised by fines levied in these courts was divided between the state, the village general fund, and two other village funds. Id. at 521- 156 Plaintiffs do not challenge the J udges’ initial assessm ent of fines and fees, and the Court does not address it. 157 R. Doc. 251-1 at 38. 62 22. One of these other funds covered expenses associated with enforcing the Prohibition Act, including nearly $ 70 0 paid to the m ayor “as his fees and costs, in addition to his regular salary.” Id. at 522. The Supreme Court overturned Tum ey’s conviction, and held that the m ayor, acting as judge, was disqualified from deciding Tumey’s case “both because of his direct pecuniary interest in the outcom e, and because of his official m otive to convict and to graduate the fine to help the financial needs of the village.” Id. at 535. In W ard v. Village of Monroeville, 40 9 U.S. 57 (1972), the Court considered a challenge to traffic fines im posed by another Ohio m ayor’s court. Fines generated by the m ayor’s court at issue in W ard provided a “m ajor part” of the total operating funds for the m unicipality that the m ayor oversaw. Id. at 58. The Court viewed the case as controlled by Tum ey and noted, “that the m ayor [in Tum ey ] shared directly in the fees and costs did not define the lim its of the principle” of judicial bias articulated in that case. Id. at 60 . Instead, the Court offered a general test to determ ine whether an arrangement of this type com prom ises a crim inal defendant’s right to a disinterested and im partial judicial officer: [T]he test is whether the [judge’s] situation is one “which would offer a possible temptation to the average m an as a judge to forget the burden of proof required to convict the defendant, or which 63 m ight lead him not to hold the balance nice, clear, and true between the state and the accused.” Id. (quoting Tum ey , 273 U.S. at 532). In holding that the m ayor’s court in W ard violated due process, the Court found that the im perm issible tem ptation “[p]lainly . . . m ay also exist when the m ayor’s executive responsibilities for village finances may m ake him partisan to m aintain the high level of contribution from the m ayor’s court.” Id. In som e cases, a judicial officer’s institutional interest m ay be too rem ote to create an unconstitutional conflict of interest. In Dugan v. Ohio, 277 U.S. 61 (1928), for exam ple, a m ayor with judicial functions also served as one of five comm issioners. Collectively, these com m issioners exercised the legislative power of the city, and shared executive powers with the city m anager (who was the “active executive”). Id. at 63. The Court held that the m ayor’s relation “to the executive or financial policy of the city” was too “rem ote” to interfere with his judicial functions. Id. at 65. The Fifth Circuit applied Tum ey and W ard to strike down Mississippi’s system of compensating justices of the peace. Brow n v. Vance, 637 F.2d 272 (5th Cir. J an. 1981). By law, the justices of the peace were paid based on the volum e of cases filed in their courts. Id. at 274. No evidence of “actual judicial bias” was necessary “to hold the fee system constitutionally infirm .” Id. at 282. Instead, the incontrovertible possibility that the justices of the 64 peace would “compete for business by currying favor with arresting officers or taking biased actions to increase their caseload . . . deprive[d] crim inal defendants of their due process right to a trial before an im partial tribunal.” Id. 2. Th e Ju d g e s Fa ce a Co n flict o f In t e r e s t W h e n Th e y D e t e r m in e Ab ilit y t o Pa y Fin e s a n d Fe e s It is undisputed that the J udges are responsible for both m anaging fines and fees revenue and determ ining whether crim inal defendants are able to pay those sam e fines and fees, once im posed. Fines and fees revenue goes into the J udicial Expense Fund, 158 which the J udges m ay use “for any purpose connected with, incidental to, or related to the proper adm inistration or function of the court or the office of the judges thereof,” La. Rev. Stat. § 13:1381.4(C), except to supplem ent their own salaries, id. § 13:1381.4(D). In their capacity as adm inistrators and executives of OPCDC, the J udges exercise total control over the J udicial Expense Fund. 159 The J udges use this m oney prim arily to fund their own staffs. 160 Various statutes give the J udges authority over revenue from fines and fees. First, Louisiana law directs the Sheriff to allocate half of all fines and 158 159 160 R. Doc. 251-2 at 12; R. Doc. 251-5 at 382. R. Doc. 251-2 at 3; R. Doc. 255-5 at 1. R. Doc. 251-2 at 5-6; R. Doc. 255-5 at 2; see also R. Doc. 248 at 3. 65 forfeitures to an “account to be adm inistered by the judges of the crim inal district court of Orleans Parish.” Id. § 15:571.11(D). This revenue is “to be used in defraying the expenses of the crim inal courts of the parish, extraditions, and such other expenses pertaining to the operation of the crim inal court of Orleans Parish.” Id. Second, the J udges m ay im pose costs of up to $ 10 0 on convicted crim inal defendants (other than those who are indigent); Louisiana law directs the J udicial Adm inistrator to place these sum s in a “Crim inal Court Cost Fund” to be adm inistered by the J udges. Id. § 13:1377. Each of the J udges m ay authorize disbursem ents from this fund “to assist in the operation and maintenance” of OPCDC. Id. § 13:1377(C). Third, and m ost im portantly, the J udges m ay im pose a fee of up to $ 50 0 on a m isdemeanant and up to $ 2,50 0 on a felon; Louisiana law directs the J udicial Adm inistrator to place these sums in the J udicial Expense Fund. Id. § 13:1381.4. The same provision also im poses a $5 fee on every convicted crim inal defendant, and directs the J udicial Adm inistrator to place these sum s in the J udicial Expense Fund. Id. § 13:1381.4(A)(1). Fourth, the J udges m ay impose a $ 14 fee on convicted, non-indigent crim inal defendants; this cost goes into an Indigent Transcript Fund “to com pensate court reporters for the preparation of all transcripts for indigent 66 defendants.” Id. § 13:1381.1(A). Louisiana law authorizes the J udges, sitting en banc, to pay “deputy court reporters for the transcription of indigent defendant cases” out of the Indigent Transcript Fund. Id. § 13:1381.1(C). Evidently, the J udges im pose additional costs under Louisiana Code of Crim inal Procedure Article 887(A) for the Indigent Transcript Fund. 161 Fifth, the J udges (or presiding judge) m ay establish a drug division and m ay adm inister a probation program for crim inal defendants charged with an alcohol- or drug-related offense. La. Rev. Stat. § 13:530 4. Louisiana law requires that individuals in this program pay for their own drug testing, “unless the court determ ines that he is indigent.” Id. § 13:530 4(B)(3)(e). Although several of these fees appear to be dedicated to certain purposes, the revenue all goes into the J udicial Expense Fund. 162 Approxim ately $ 1,0 0 0 ,0 0 0 from various fines and fees goes into the OPCDC budget each year. 163 This funding structure puts the J udges in the difficult 161 R. Doc. 248 at 4. R. Doc. 251-2 at 12. In support of this fact, plaintiffs point to spreadsheets showing that from 20 13 through 20 15, all fines and fees revenue went to the general fund (i.e., the J udicial Expense Fund) rather than the restricted fund. R. Doc. 251-5 at 382-83. In 20 12, some of these fines and fees, including indigent transcript fees, went into the restricted fund. Id. Defendants do not contradict this evidence. 163 Specifically, OPCDC obtained $ 830 ,384 in fines and fees revenue in 20 12, $ 973,311 in 20 13, $ 1,0 84,968 in 20 14, and $ 1,188,420 in 20 15. R. Doc. 248 at 2. 67 162 position of not having sufficient funds to staff their offices unless they im pose and collect sufficient fines and fees from a largely indigent population of crim inal defendants. The J udges’ power over fines and fees revenue creates a conflict of interest when those same J udges determ ine (or are supposed to determ ine) whether crim inal defendants are able to pay the fines and fees that were im posed at sentencing. As explained earlier, the J udges have a constitutional obligation to inquire into crim inal defendants’ ability to pay court debts. But the J udges have a financial stake in the outcome of ability-to-pay determ inations; if they determ ine that a crim inal defendant has the ability to pay, and collect m oney from her, then the revenue goes directly into the J udicial Expense Fund. Cf. United Church of the Med. Ctr. v. Med. Ctr. Com m ’n, 689 F.2d 693, 699 (7th Cir. 1982) (“In this case the Com m ission has a pecuniary interest in the outcome of the reverter proceedings, because if the Com m ission finds a nonuse or disuse, the property reverts to the Com m ission . . . . This is sufficient . . . to m andate disqualification of the Com m ission in the reverter proceeding . . . .”). The J udges therefore have an institutional incentive to find that criminal defendants are able to pay fines and fees. 68 The J udges’ dual role, as adjudicators who determ ine ability to pay and as m anagers of the OPCDC budget, offer a possible tem ptation to find that indigent crim inal defendants are able to pay their court debts. This “inherent defect in the legislative fram ework” arises not from the bias of any particular J udge, but “from the vulnerability of the average m an—as the system works in practice and as it appears to defendants and to the public.” Brow n, 637 F.2d at 284. The J udges’ practice of failing to inquire into ability to pay is itself indicative of their conflict of interest. Cf. Esso Standard Oil Co. v. Cotto, 389 F.3d 212, 219 (1st Cir. 20 0 4) (noting that evidence of actual bias includes “procedural irregularities in the decision to assess [a] fine”). As is the dram atic increase in assessm ents for indigent transcript fees between 20 12 and 20 13—from $9,841.50 to $ 271,581.75—when OPCDC shifted revenue from such fees from the restricted fund to the J udicial Expense Fund. 164 Defendants insist that they do not benefit from this revenue, which solely aids indigent crim inal defendants. 165 This assertion is undercut by financial statements for the J udicial Expense Fund, which show expenditures on transcripts of $0 in 20 13 and 20 15 and $ 7,0 44 in 20 14. 166 164 165 166 R. Doc. 248-1 at 6-7; R. Doc. 251-5 at 382-83. R. Doc. 255-5 at 17. R. Doc. 248-1 at 2-4. 69 Further evidence of an actual conflict of interest is that the J udges have sought ways to increase collections from crim inal defendants. At a City Council hearing in J uly 20 14, a judge explained that the J udges were sharing ideas “in an effort to increase [their] collection” of fines and fees. 167 The Collections Departm ent itself was created by the J udges in the 1980 s to facilitate collection efforts. 168 Moreover, at least from 20 13 through 20 15, the am ount of fees (which go entirely to OPCDC) im posed by the J udges far exceeded the am ount of fines (only half of which goes to OPCDC). 169 This suggests that the J udges prefer to im pose fees for OPCDC rather than share fines with the DA. Defendants’ reliance on Broussard v. Parish of N ew Orleans, 318 F.3d 644 (5th Cir. 20 0 3), is m isplaced. The plaintiffs in Broussard challenged the constitutionality of the Louisiana bail fee statutes on a num ber of grounds. As relevant here, the plaintiffs argued that these statutes violated Tum ey and W ard by “tempt[ing] sheriffs to stack charges against arrestees in violation of their due process rights.” Id. at 661. The court found that Tum ey and 167 R. Doc. 251-5 at 284. Defendants object to City Council transcripts as incom plete and taken out of context. R. Doc. 255-5 at 18. But the J udges’ statements are adm issible as adm issions of party opponents. Fed. R. Evid. 80 1(d)(2). Moreover, defendants do not contend that the statements at issue were inaccurately transcribed. 168 R. Doc. 248 at 7. 169 See R. Doc. 248-1 at 7-9, 11-13. 70 W ard were inapplicable because the sheriffs-defendants in Broussard did not exercise a judicial function. Id. at 662. As purely executive actors, the sheriffs were “not expected to m aintain a level of impartiality equal to that expected of judges.” Id. Unlike the sheriffs in Broussard, the J udges in this case do exercise a judicial function when they are required to determ ine ability to pay fines and fees. Thus, unlike in Broussard, the W ard test applies to whether the J udges have an unconstitutional conflict of interest. That the J udges have an institutional, rather than direct and individual, interest in m axim izing fines and fees revenue is im m aterial. See Chry sler Corp. v. Tex. Motor Vehicle Com m ’n, 755 F.2d 1192, 1199 (5th Cir. 1985) (“Certainly the due process principle distilled from the Tum ey line reaches beyond imm ediate econom ic stakes to include econom ic interests said to be ‘indirect’ or ‘institutional.’”). W ard itself involved a m ayor who had no direct, personal interest in traffic fine revenue; his interest related solely to his “executive responsibilities for village finances.” 40 9 U.S. at 60 . Likewise, the J udges’ interest in fines and fees revenue is related to their executive responsibilities for OPCDC finances. Additionally, that the J udges m anage court funds collectively does not render their institutional interest too rem ote. Unlike in Dugan, where the m ayor was only one m em ber of a five-person com m ission that shared 71 executive power with the city m anager (who was the acting executive), collectively the J udges exercise all executive power over OPCDC’s share of fines and fees revenue. Moreover, the Supreme Court has applied Tum ey and W ard to the mem bers of a state board of optometry, all of whom had a personal interest in revoking the licenses of optometrists em ployed by corporations. Gibson v. Berry hill, 411 U.S. 564, 578 (1973). The Court held that the board m embers were disqualified from adjudicating charges against such optom etrists. Id.; cf. Chry sler, 755 F.2d at 1199 (finding no im perm issible bias where only four out of nine com m issioners potentially had conflict of interest). Plaintiffs have established that the J udges’ dual role creates a “possible tem ptation . . . not to hold the balance nice, clear, and true between the state and the accused.” W ard, 40 9 U.S. at 60 (quoting Tum ey , 273 U.S. at 532). By no fault of their own, the J udges’ “executive responsibilities for [court] finances m ay m ake [them ] partisan to m aintain the high level of contribution,” in the form of fines and fees, from crim inal defendants. Id. 3. Th e Ju d g e s ’ Co n flict o f In t e r e s t Is Su b s t a n t ia l Plaintiffs m ust also establish that the J udges’ conflict of interest is substantial. In Tum ey , the Court noted that “[t]he m inor penalties usually attaching to the ordinances of a village council, or to the m isdemeanors in 72 which the m ayor m ay pronounce final judgm ent without a jury, do not involve any such addition to the revenue of the village as to justify the fear that the m ayor would be influenced in his judicial judgm ent by that fact.” 273 U.S. at 534. According to the Ninth Circuit, the proper question is “whether the official m otive here is ‘strong,’ so that it ‘reasonably warrants fear of partisan influence on the judgment.’” Alpha Epsilon Phi Tau Chapter Hous. Ass’n v. City of Berkeley , 114 F.3d 840 , 847 (9th Cir. 1997) (quoting Com m onw ealth of N . Mariana Islands v. Kaipat, 94 F.3d 574, 575, 582 (9th Cir. 1996)). The J udges’ institutional interest in maxim izing fines and fees revenue is substantial. Fines and fees revenue is obviously im portant to the J udges; fines and fees provide approxim ately 10 % of the total OPCDC budget and one quarter of the J udicial Expense Fund. 170 Cf. DePiero v. City of Macedonia, 180 F.3d 770 , 780 -82 (6th Cir. 1999) (finding a due process violation when a m axim um of 9% of m unicipality’s general fund derived from m ayor’s court revenue). J udge Zibilich em phasized the im portance of this revenue during a City Council hearing, stating that the fines and fees revenue “probably represents fully a fourth of the m onies that we need to be operational, and if we are handcuffed in that particular regard, that m oney[’s] replacement’s 170 R. Doc. 248 at 2; R. Doc. 248-1 at 1-4. 73 going to have to com e from some place.”171 The J udges spend m ost of the J udicial Expense Fund on salaries and benefits for their em ployees (though not them selves), and m ost of the m oney for these salaries and benefits com es from the J udicial Expense Fund. 172 Moreover, the aggregate am ount at stake in determ ining crim inal defendants’ ability to pay is significant. According to the parties’ joint stipulations of fact, OPCDC collects only between 40 % and 50 % of the fines and fees it assesses. 173 The am ounts that go uncollected run in the hundreds of thousands of dollars. In 20 13, for exam ple, OPCDC assessed $ 1,517,0 31.17 in J udicial Expense Fund fees, Indigent Transcript Fund fees, and drug testing fees—the three largest categories of fees that go into the J udicial Expense Fund. 174 OPCDC collected only $ 80 5,0 67.12 in these fees. 175 The am ount uncollected, $ 711,964.0 5, was equal to 17% of the J udicial Expense 171 R. Doc. 251-5 at 247. R. Doc. 251-2 at 5-6; R. Doc. 255-5 at 2. 173 R. Doc. 248 at 5. 174 See R. Doc. 248-1 at 7. 175 See id. at 11. Of course, fees assessed in one year m ay be collected in later years. But the record does not include tim e fram es for collections of specific assessments. 74 172 Fund revenue in 20 13. 176 That sam e figure was 14% in 20 14, and 18% in 20 15. 177 Both Adm inistrator Kazik and J udge Zibilich have suggested that collection rates are low partly because m ost crim inal defendants are indigent. In a 20 14 letter requesting a higher appropriation from the City of New Orleans, Adm inistrator Kazik explained that m ost of the OPCDC budget “is received from the various fines and fees assessed to defendants at sentencing.”178 But, he stated, “[m]ost defendants are unem ployed and indigent, which makes collecting those assessed fees a challenge and an unreliable revenue resource for the Court’s operational needs.”179 At a City Council m eeting, J udge Zibilich noted that nearly 95% of the crim inal defendants in OPCDC cannot afford an attorney, and stated: “If they can’t afford an attorney, just im agine how difficult it’s going to be for us to have to chase them around the block to try to get m oney from them .”180 It is undisputed that OPCDC depends heavily on fines and fees revenue, that m any crim inal defendant subject to these fines and fees are 176 See id. at 2 (20 13 general fund revenue was $ 4,10 0 ,413). See id. at 3 (20 14 general fund revenue was $ 3,928,0 25); id. at 4 (20 15 unrestricted fund revenue was $ 3,940 ,535); id. at 8-9 (20 14 and 20 15 assessments); id. at 12-13 (20 14 and 20 15 collections). 178 R. Doc. 251-5 at 174. 179 Id. 180 Id. at 286. 75 177 indigent, and that collection rates are only 40 % to 50 %. Based on these facts, it is clear the J udges’ m otive to m axim ize fines and fees revenue is strong enough reasonably to warrant fear of partisan influence on ability-to-pay determ inations. See Alpha Epsilon, 114 F.3d at 847 (9th Cir. 1997). Thus, plaintiffs have established that the J udges face a substantial conflict of interest when they determ ine ability to pay fines and fees (or are supposed to do so). This conflict of interest exists by no fault of the J udges them selves. It is the unfortunate result of the financing structure, established by governing law, that forces the J udges to generate revenue from the crim inal defendants they sentence. Of course, the J udges would not be in this predicament if the state and city adequately funded OPCDC. So long as the J udges control and heavily rely on fines and fees revenue, however, the J udges’ adjudication of plaintiffs’ ability to pay those fines and fees offends due process. Thus, plaintiffs are entitled sum mary judgment on Count Five to the extent they seek a declaration that the J udges’ institutional incentives create an im perm issible conflict of interest when they determ ine, or are supposed to determ ine, plaintiffs’ ability to pay fines and fees. 76 D. Plain tiffs Are N o t En title d Su m m ary Ju d gm e n t o n Co u n t Six Count Six is an equal protection challenge against defendants’ debt collection practices. Plaintiffs argue that these practices are harsher than debt collection m easures available to private creditors. 181 Plaintiffs attem pt to show discrim ination on the face of the Louisiana statutory framework for contempt proceedings. See, e.g., Lew is v. Ascension Par. Sch. Bd., 72 F. Supp. 3d 648, 662-63 (M.D. La. 20 14) (distinguishing explicit classification from discrim inatory application of facially neutral law); see also Doe v. Low er Merion Sch. Dist., 665 F.3d 524, 543-45 (3d Cir. 20 11) (same). Plaintiffs principally rely on Jam es v. Strange, 40 7 U.S. 128 (1972), where the Suprem e Court addressed a Kansas recoupment statute that allowed the state to “recover in subsequent civil proceedings counsel and other legal defense fees expended for the benefit of indigent defendants.” Id. at 128. The statute excluded these indigent defendants from “the array of protective exem ptions Kansas has erected for other civil judgm ent debtors,” such as “the exem ption of his wages from unrestricted garnishm ent.” Id. at 135. 181 The Court struck down the statute as “em bod[ying] elem ents of R. Doc. 251-1 at 53. 77 punitiveness and discrim ination which violate the rights of citizens to equal treatm ent under the law.” Id. at 142. Plaintiffs argue that defendants’ practice of jailing crim inal defendants is sim ilarly discrim inatory. They note that Louisiana has abolished the writ of capias ad satisfaciendum , which allowed a private creditor to im prison a debtor until her judgm ent was satisfied. See La. Rev. Stat. § 13:4281 (abolishing writ); Capias, Black’s Law Dictionary (defining capias ad satisfaciendum as “[a] postjudgment writ com m anding the sheriff to im prison the defendant until the judgm ent is satisfied”). According to plaintiffs, a private creditor seeking to enforce a judgment against a debtor m ay now seek contem pt of court. A debtor in that situation has various procedural protections under Louisiana law. For example, the court m ust issue a rule “to show cause why [the debtor] should not be adjudged guilty of contem pt”; this rule to show cause m ust be served on the debtor at least 48 hours before trial; and if the court finds the debtor guilty, it m ust issue “an order reciting the facts constituting the contem pt.” La. Code Civ. Proc. art. 225. By law, crim inal defendants have sim ilar procedural protections in contem pt proceedings: the judge m ust issue a rule to show cause; this rule m ust be served on the crim inal defendant at least 48 hours before trial; and 78 if the court finds the defendant guilty, it m ust issue “an order reciting the facts constituting the contem pt.” La. Code Crim. Proc. art. 24. Thus, the statutory procedures for contem pt proceedings are essentially the sam e for both civil and crim inal defendants. Unlike in Jam es, there is no discrim ination on the face of these statutes. Plaintiffs are not entitled sum m ary judgment on Count Six. IV. CON CLU SION For the foregoing reasons, the Court GRANTS plaintiffs’ m otion for sum m ary judgm ent on Count Five. The Court GRANTS defendants’ m otion for sum m ary judgment on Counts One, Two, and Four. The parties’ motions are otherwise DENIED. Counts One, Two, and Four are DISMISSED AS MOOT. Adm inistrator Kazik is DISMISSED from this case. New Orleans, Louisiana, this _ 13th _ day of Decem ber, 20 17. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 79

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