Cain et al v. New Orleans City et al

Filing 279

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)

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)

ORDER AND REASONS
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 manner in which the
Orleans Parish Criminal District Court collects post-judgment court debts
from indigent criminal defendants. Before the Court are the parties’ crossmotions for partial summary judgment.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 Criminal District
Court. For the following reasons, the Court grants in part and denies in part
each motion.

1

R. Docs. 250, 251.
1

I.

BACKGROUND
Plaintiffs are former criminal defendants in the Orleans Parish

Criminal District Court (OPCDC). Each named plaintiff pleaded guilty to
various criminal offenses between 2011 and 2014. 2 All named plaintiffs,
except Reynaud Variste, were appointed counsel. 3 The Court previously
dismissed Reynaud Variste’s and Long’s claims for equitable relief.4 Thus,
only Cain, Brown, Reynajia Variste, and Maxwell have live claims for
equitable relief.
The remaining defendants are OPCDC Judges Laurie A. White, Tracey
Flemings-Davillier, Benedict Willard, Keva Landrum-Johnson, Robin
Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl
Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry
Cantrell (collectively, the Judges); OPCDC Judicial Administrator Robert
Kazik; and Orleans Parish Sheriff Marlin Gusman.
A.

Fines and Fees Imposed by OPCDC

The Judges impose various costs on convicted criminal defendants at
their sentencing. First, the Judges may impose 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. 109 at 19-21.
2

La. Rev. Stat.

§ 15:571.11(D). Second, the Judges may order a criminal defendant to pay
restitution to victims. La. Code Crim. Proc. art. 883.2. Third, the Judges
impose various fees that go to OPCDC:
• A mandatory $5 fee, La. Rev. Stat. § 13:1381.4(A)(1);
• Additional fees up to $500 on a misdemeanant and $2,500 on a
felon, id. § 13:1381.4(A)(2);
• Court costs up to $100, id. § 13:1377(A);
• A fee of $14 for the Indigent Transcript Fund, id. § 13:1381.1(B),
which “compensate[s] court reporters for the preparation of all
transcripts for indigent defendants,” id. § 13:1381.1(A); and
• Additional costs under Louisiana Code of Criminal Procedure
Article 887(A) for the Indigent Transcript Fund. 5
Fourth, the “court costs” imposed by Judges also include fees that go to other
entities, such as the Orleans Public Defender, the DA, and the Louisiana
Supreme Court. 6 After sentencing, OPCDC may further assess criminal
defendants for the costs of drug treatment and drug testing. La. Rev. Stat.
§ 13:5304.

For example, both Alana Cain and Ashton Brown were assessed $100
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
5

Separately, the Sheriff collects a 3% fee on bail bonds secured by
commercial 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 criminal convictions, the named plaintiffs were
assessed fines and fees ranging from $148 (imposed on Long) to $901.50
(imposed on Cain).7 Cain pleaded guilty to felony theft on May 30, 2013. 8 At
sentencing, the court stated that payment of fines and fees was a special
condition of probation. 9 The court directed Cain to make the first $100
payment at the courthouse on July 8, 2013, and stated, “[e]ven if you don’t
have the money, you have to come here to the courtroom . . . for an
extension.”10 The court later ordered Cain to pay $1,800 in restitution. 11
Brown received a 90-day suspended sentence after pleading guilty to
misdemeanor theft on December 16, 2013.12 The court imposed $500 in fees:
$146 for the Judicial Expense Fund, $100 for the Indigent Transcript Fund,
$234 in court costs, and a $20 special assessment for the DA. 13 As with Cain,

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
7

8

the court instructed Brown to make his first $100 payment at the courthouse
on January 13, 2014. 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, 2014. 16 Variste was
assessed fees in the amount of $886.50: $286.50 in court costs, $200 for the
Indigent Transcript Fund, and $400 for the Judicial Expense Fund.17 The
judge warned Variste that “[f]ailure to make those payments will result in
contempt of Court proceedings.” 18
Vanessa Maxwell was sentenced to eighteen months imprisonment for
battery and six months for simple criminal damage after pleading guilty on
March 6, 2012.19 Maxwell was assessed $191.50 in court costs, although the
judge did not specify this amount 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.

The OPCDC Budget

The Judges manage the budget of OPCDC. 21 From 2012 through 2015,
the court’s revenue ranged from $7,567,857 (in 2012) to $11,232,470 (in
2013). 22 Some of this revenue could be used only for specified purposes and
went into a restricted fund; unrestricted revenue went into OPCDC’s Judicial
Expense Fund, which is the general operating fund for court operations.23
See La. Rev. Stat. § 13:1381.4. The Judges exclusively control this fund and
may use it “for any purpose connected with, incidental to, or related to the
proper administration or function of the court or the office of the judges
thereof.” Id. § 13:1381.4(C). They may not use it to supplement their own
salaries. Id. § 13:1381.4(D). Most money for salaries and benefits of OPCDC
employees (apart from the Judges) comes from the Judicial Expense Fund. 24
From 2012 through 2015, the Judicial Expense Fund’s annual revenue
was approximately $4,000,000. 25 Roughly half of this revenue came from
other governmental entities, especially the City of New Orleans.26 About

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 Judicial 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 Judicial Expense Fund had
$4,090,707 in revenue in 2012; $4,100,413 in 2013; $3,928,025 in 2014; and
$3,940,535 in 2015.
26
Id. at 1-3.
6
21

22

$1,000,000 came from bail bond fees, and another $1,000,000 from fines
and other fees.27 Since at least 2013, all fines and fees revenue has gone to
the Judicial Expense Fund.28
C.

OPCDC’s Debt Collection Practices

All named plaintiffs were subject to OPCDC’s debt collection practices.
At least until September 18, 2015, the Judges delegated authority to collect
court debts to the Collections Department, which the Judges and
Administrator Kazik jointly instructed and supervised.29 The Collections
Department created payment plans for criminal defendants, accepted
payments, and granted extensions.30 Some Judges also delegated authority
to the Collections Department to issue alias capias warrants against criminal
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 criminal defendants who
had missed payments.32 The first letter stated: “Recently, at your sentencing
in court, you were given probation. At such time the Judge 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 make
arrangements to pay your fines that are now delinquent.” The letter also
directed its recipient to appear at the court “to resolve this matter” by a given
date. “Failure to comply with the conditions of probation,” the letter warned,
“will result in your immediate arrest.”33 The second letter stated: “Unless
arrangements are made with [the collections agent] or payment is received
in full within 72 hours[,] . . . we will request your immediate arrest.” 34
The Collections Department then checked court dockets to determine
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 named in the
warrant was charged with contempt of court.38 The warrants usually set
surety bail at the predetermined amount of $20,000.39 Although the Judges

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 (example 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 Department issued such

warrants to arrest the named plaintiffs for failure to pay fines and fees. 41
Individuals arrested pursuant to these warrants ordinarily remained in
jail until their family or friends could make a payment on their court debt, or
until a judge released them.42 The named plaintiffs were imprisoned for
periods ranging from six days to two weeks. 43
Alana Cain was arrested pursuant to an alias capias warrant on March
11, 2015.44 Apparently unable either to make a payment or to post the
$20,000 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 making payments. 46 Cain explained that she had missed a
payment after giving birth a few weeks earlier, but could continue making
payments upon her release.47 The judge ordered her release and directed her

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, 2015).
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
40
41

to return to court for a status update two weeks later.48 OPCDC suspended
Cain’s court debts on April 7, 2016, 49 although Cain made further payments
toward her court debts after that date.50
Ashton Brown spent two weeks in jail before his family secured his
release by making a $100 payment to OPCDC. 51 An alias capias warrant
issued on July 16, 2015, and Brown was arrested on July 23. 52 Brown
appeared in court without counsel on August 6; the court agreed to release
Brown upon payment of $100 to OPCDC.53 Brown’s family made this
payment the next day, and Brown was released.54

OPCDC suspended

Brown’s court debts on September 23, 2016, 55 although Brown, like Cain,
made further payments after that date.56
Reynajia Variste was arrested pursuant to an alias capias warrant on
May 28, 2015.57 On June 2, a family member paid $400 to OPCDC in order

Id. at 32.
R. Doc. 250-3 at 22
50
See R. Doc. 230-3 at 1-2 (payment receipts dated August 26, 2016, and
October 12, 2016).
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, 2017).
57
R. Doc. 95-6 at 1.
10
48
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, 2016. 60
Vanessa Maxwell was arrested on May 10, 2015, 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 make 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 someone to go to fines and fees to make arrangements.” 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
family [member] to go over and make arrangements with fines n fees [sic].
Explain you have been incarcerated[;] they will make 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, 2015. 65 The judge ordered her release without
payment.66 Maxwell paid off her court debt on June 2, 2016. 67
After this suit was filed, the Judges revoked the Collections
Department’s authority to issue warrants.68 The Judges also recalled all
active fines and fees warrants issued by the Collections Department before
September 18, 2015, unless restitution remained unpaid or the individual
had failed to appear in court. 69 In doing so, the Judges wrote off $1,000,000
in court debts. 70 Each Judge now “handles collection-related matters on
their respective dockets.”71
Nevertheless, at least some active warrants for failure to pay restitution
still exist. 72 And the Judges themselves now issue alias capias warrants for
failure to pay fines and fees. 73 There is no evidence that the Judges now
consider, or have ever considered, ability to pay before imprisoning indigent
criminal defendants for failure to pay fines and fees. Indeed, the Judges do
not routinely solicit financial information from criminal 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.

Procedural History

Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, alleging
violations of their Fourth and Fourteenth Amendment rights, and violations
of Louisiana tort law. Plaintiffs brought this action on behalf of themselves
and all others similarly situated.76 The first amended complaint, filed shortly
after the initial complaint, named the following defendants: (1) The City of
New Orleans, (2) OPCDC, (3) Sheriff Gusman, (4) Clerk of Court Arthur
Morrell, (5) Judicial Administrator Kazik, and (6) the Judges. The Court has
summarized plaintiffs’ seven counts as follows:
(1)

Defendants’ policy of issuing and executing arrest warrants for
nonpayment of court debts is unconstitutional under the Fourth
Amendment and the Due Process Clause of the Fourteenth
Amendment;

R. Doc. 251-2 at 17.
R. Doc. 250-2 at 12; R. Doc. 259-1 at 8.
76
Although plaintiffs moved for class certification on February 10, 2017,
see R. Doc. 230, the Court stayed all motion practice—and thus denied
plaintiffs’ class certification motion without prejudice—pending further
order, see R. Doc. 237.
13
74
75

(2)

Defendants’ policy of requiring a $20,000 “fixed secured money
bond” for each Collections Department warrant (issued for
nonpayment of court debts) is unconstitutional under the Due
Process Clause and the Equal Protection Clause of the
Fourteenth Amendment;

(3)

Defendants’ policy of indefinitely jailing indigent debtors for
nonpayment of court debts without a judicial hearing is
unconstitutional under the Due Process Clause of the Fourteenth
Amendment;

(4)

Defendants’ “scheme of money bonds” to fund certain judicial
actors is unconstitutional under the Due Process Clause of the
Fourteenth Amendment. To the extent defendants argue this
scheme is in compliance 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 Amendment, and the
14

Judges’ authority over both fines and fees revenue and ability-topay determinations violates the Due Process Clause;
(6)

Defendants’ policy of jailing and threatening to imprison
criminal defendants for nonpayment of court debts is
unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment because it imposes unduly harsh and
punitive restrictions on debtors whose creditor is the State, as
compared to debtors who owe money to private creditors;

(7)

Defendants’ conduct constitutes wrongful arrest and wrongful
imprisonment under Louisiana law.

Plaintiffs’ request for relief seeks: (1) declaratory judgments that
defendants’ actions violate plaintiffs’ Fourth and Fourteenth Amendment
rights; (2) an order enjoining defendants from enforcing the purportedly
unconstitutional policies; (3) money damages for the named plaintiffs; and
(4) attorney’s fees under 42 U.S.C. § 1988.
After a round of motions, all claims against the City of New Orleans,
the Sheriff, and OPCDC were dismissed, along with Count Three and claims
against the remaining defendants for monetary 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 amended complaint. 78 The Court also
consolidated this case with LaFrance v. City of New Orleans, 16-14439. 79
Now, plaintiffs seek declaratory relief against the Judges in their
official capacity on Counts One, Two, Four, Five, and Six; declaratory relief
against Administrator Kazik in his individual capacity on Counts One, Two,
and Six; injunctive and declaratory relief against Sheriff Gusman in his
official capacity on Count Four; and injunctive and declaratory relief as well
as damages against the Sheriff on Count Seven.
As ordered by the Court, the parties have submitted cross-motions for
summary judgment on Counts One, Two, Four, Five, and Six. 80

II.

STANDARD OF REVIEW
Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter 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 1069,

R. Doc. 228.
R. Doc. 249.
80
R. Doc. 237. The Court has stayed all other motion practice. In
contravention of the Court’s order, plaintiffs have moved for summary
judgment on Count Seven. Plaintiffs’ summary judgment motion is DENIED
WITHOUT PREJUDICE to the extent it seeks relief on Count Seven.
16
78
79

1075 (5th Cir. 1994). When assessing whether a dispute as to any material
fact exists, the Court considers “all of the evidence in the record but refrain[s]
from making credibility determinations or weighing the evidence.” Delta &
Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99
(5th Cir. 2008).

All reasonable inferences are drawn in favor of the

nonmoving party, but “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
support or defeat a motion for summary judgment.” Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see also Little, 37 F.3d at
1075. “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-moving party.” EEOC v.
Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must 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 nonmoving party can then defeat the motion by
either countering with evidence sufficient to demonstrate the existence of a
genuine dispute of material fact, or “showing that the moving party’s

17

evidence is so sheer that it may not persuade the reasonable fact-finder to
return a verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
merely pointing out that the evidence in the record is insufficient with
respect to an essential element of the nonmoving party’s claim. See Celotex,
477 U.S. at 325. The burden then shifts to the nonmoving party, who must,
by submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings, but must identify specific facts that establish a genuine issue for
trial. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element 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. DISCUSSION
A.

Justiciability

Defendants’

motion

for

summary

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 claims
are moot in light of defendants’ voluntary cessation of challenged conduct.
Third, defendants argue that plaintiffs impermissibly seek a writ of
mandamus against state judicial officers. Fourth, defendants argue that the
Court cannot grant declaratory relief in this case. Finally, defendants argue
that the Eleventh Amendment bars official-capacity claims against state
judicial officers.
1.

Standing and Mootness

Article III of the U.S. Constitution limits federal jurisdiction to cases or
controversies. U.S. Const. art. III, § 2. To satisfy this case-or-controversy
requirement, a plaintiff must have a personal stake in the suit she
commences. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 732-33
(2008).

This personal stake must exist both at commencement 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 merely at the time the complaint 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 commencement 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 claims become moot.
19

See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180, 189 (2000) (first addressing standing at the commencement of suit
and then addressing mootness).
Defendants confuse these two doctrines—standing and mootness—in
their motion for summary judgment. First, they argue that the named
plaintiffs lack standing because their debts have been “suspended” or
“waived.” 81

Second, defendants argue that their voluntary cessation of

certain debt collection practices moots plaintiffs’ claims challenging those
practices.82 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
commencement 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’ claims became moot during
the life of the suit. See, e.g., County of Riverside v. McLaughlin, 500 U.S.
44, 51 (1991) (distinguishing standing from mootness).

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 outcome of this suit is properly addressed as a question of mootness.
2.

Plaintiffs Had Standing to Bring Suit

The Court is nonetheless obligated to determine whether the parties
had standing to bring suit. Laidlaw, 528 U.S. at 180. Standing consists of
three elements: (1) the plaintiff must 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 imminent; (2) the injury must be fairly
traceable to the challenged conduct of the defendant; and (3) it must be likely
that the plaintiff’s injury will be redressed by a favorable judicial decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

With regard to

“equitable relief for past wrongs, a plaintiff must demonstrate either
continuing harm or a real and immediate threat of repeated injury in the
future.” Soc’y of Separationists, Inc. v. Herman, 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 (2016).
In support of their standing argument, defendants note that this Court
dismissed Reynaud Variste’s and Thaddeus Long’s claims for equitable relief
because neither plaintiff owed outstanding courts debts for which they could
21

be imprisoned.83 But those plaintiffs lacked standing to seek equitable relief
because they faced no imminent injury when the suit commenced. The
amended complaint itself acknowledged that both plaintiffs had already paid
their court debts, and thus no longer faced an imminent threat of injury from
defendants’ debt collection policies and practices.84
The Court is satisfied that the other named 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 2015. Thus, there is no dispute that
these plaintiffs were subject to defendants’ debt collection policies and
practices when this suit began.
Plaintiffs demonstrated a concrete and imminent injury arising from
defendants’ policies and practices: the risk of arrest and imprisonment for
failing to pay outstanding court debts. This risk was not hypothetical or
speculative; plaintiffs themselves were arrested and imprisoned for that very
reason shortly before the suit commenced. Compare Roark & Hardee LP v.
City of Austin, 522 F.3d 533, 543 (5th Cir. 2008) (concluding that “because
some Plaintiff bar owners have been charged under the ordinance and all

83
84

R. Doc. 109 at 20.
R. Doc. 7 at 15 ¶ 48, 18 ¶ 67.
22

Plaintiff bar owners face the real potential of immediate criminal
prosecution, they have standing to bring their claims”), with 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 permit 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 commencement,
dissipated over time.
3.

Defendants’ Voluntary Cessation Moots Counts
One, Two, and Four

The Court first addresses whether any claims are moot in light of
defendants’ voluntary cessation of certain debt collection practices. As a
general rule, “any set of circumstances that eliminates actual controversy
after the commencement of a lawsuit renders that action moot,” Ctr. for
Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006), and
requires that the case be dismissed, Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 72 (2013). 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 determine 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 might become moot if subsequent
events made 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, 203 (1968)).
Additionally, “[w]ithout evidence to the contrary, [courts] assume that
formally announced changes to official governmental policy are not mere
litigation posturing.” Sossamon v. Lone Star State of Texas, 560 F.3d 316,
325 (5th Cir. 2009). Nonetheless, a defendant’s burden of showing mootness
by virtue of its voluntary cessation is “formidable.” Laidlaw, 528 U.S. at 190.
Defendants, through an affidavit by Administrator Kazik, state that
they have taken the following actions in response to this lawsuit: 85
• 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 Gusman 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 $1,000,000 in fines
and fees owed to the court. 88
• Defendants have worked together “to implement new procedures
to correct complaints about delays in getting arrestees timely to
court.” 89
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 magistrate, and without oath or
affirmation.90 The allegations in support of Count One relate solely to
warrants issued by the Collections Department. 91 Similarly, Counts Two and
Four relate to the fixed, $20,000 money bail imposed on individuals who are
arrested on Collections Department warrants. 92 Counts Five and Six, by

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
determined by the Collections Department, Collections Department
employees will seek a warrant for the debtor’s arrest. . . . The ‘warrants’ are
never presented to a judge or neutral magistrate for review, and no judicial
officer is even aware of any particular warrant application or issuance. They
are not supported by oath or affirmation.”).
92
See id. at 27 ¶ 95 (“The OPCDC Defendants impose an automatic
$20,000 secured money bond on anyone illegally arrested and imprisoned
on a Collections Department warrant for non-payment or late payment of
25
88
89

contrast, do not depend on abandoned Collections Department practices.
Count Five asserts that the Judges fail to consider ability to pay before
imprisoning plaintiffs for failure to pay court debts.93 Count Five further
asserts that the Judges do not provide a neutral tribunal to determine 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 criminal defendants for failure to pay fines and fees
is invidious discrimination. 95

Thus, if it is absolutely clear that the

Collections Department’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 moot.
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 nonpayment arrest . . . .”); id. at 58
¶ 195 (“Defendants operate a system of money bond in which the OPCDC
Defendants set a bond amount on Collections Department warrants that the
Defendants know will result in their collecting and controlling 1.8% of the
bond amount if it is ultimately paid.”).
93
Id. at 59 ¶¶ 198-99.
94
Id. at 59-60 ¶ 200.
95
Id. at 60 ¶ 202.
96
R. Doc. 250-1 at 11.
26

Fifth Circuit has cautioned that “allegations by a defendant that its voluntary
conduct has mooted the plaintiff’s case require closer examination than
allegations that happenstance or official acts of third parties have mooted 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. 2008)).
Upon close examination, the Court is satisfied that defendants’
voluntary conduct has mooted plaintiffs’ claims related to Collections
Department fines and fees warrants.

A memorandum issued by

Administrator Kazik on September 18, 2015 stated: “Pursuant to the En Banc
directive issued earlier today, all Collections Agents for Criminal District
Court may no longer issue an Alias Capias for non-payment of fines and fees
or for failure to appear. This is effective immediately.” 97 The Court must
assume that this “formally announced change[] to official governmental
policy [was] not mere litigation posturing.” Sossamon, 560 F.3d at 325.
Moreover, the Judges reviewed all active fines and fees warrants issued by
the Collections Department before September 18, 2015, and recalled all such
warrants unless restitution remained unpaid or the individual had failed to
appear in court. 98 In doing so, the Judges wrote off $1,000,000 in court

97
98

R. Doc. 250-2 at 76.
R. Doc. 250-3 at 4.
27

debts.99

Each Judge now “handles collection-related matters on their

respective dockets,” according to Administrator Kazik.100
Admittedly, the timing of these policy changes suggests that they were
made in response to this litigation. Administrator Kazik states in his affidavit
that the Judges decided to revoke the Collections Department’s authority to
issue warrants on “the day the Judges first heard about this lawsuit.”101
Furthermore, there is no indication that defendants’ new policy will be
binding on future OPCDC judges and administrators. Cf. Lewis 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 2012, the former chief judge of OPCDC directed the Collections
Department to discontinue issuing fines and fees warrants, but reversed
course in February 2013. 102

99
100
101
102

Id.
Id. at 5.
Id. at 3.
R. Doc. 250-2 at 77-78.
28

Nevertheless, the Court finds that defendants’ voluntary policy
changes make it absolutely clear that Collections Department practices could
not reasonably be expected to recur. Defendants have formally revoked the
Collections Department’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 met their formidable burden of

showing that their voluntary conduct has mooted Counts One, Two, and
Four.
4.

Defendants’ Voluntary Cessation Does Not Moot
Counts Five and Six

As discussed earlier, Counts Five and Six focus on what the Judges do,
not what the Collections Department did, when criminal defendants fail to
pay fines and fees. Specifically, Count Five challenges the Judges’ practice of
failing to inquire into ability to pay before plaintiffs are imprisoned for
nonpayment, and the Judges’ conflict of interest in deciding plaintiffs’ ability
to pay.103 Count Six challenges the Judges’ practice of imprisoning criminal
defendants for failure to pay fines and fees as invidious discrimination.104
The predicate constitutional injuries underlying both of these claims are that

103
104

R. Doc. 161-4 at 59-60 ¶¶ 198-200.
Id. at 60 ¶ 202.
29

plaintiffs are subject to imprisonment for failure to pay court debts, and that
the Judges do not inquire into plaintiffs’ ability to pay before their
imprisonment.
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 moot Counts Five
and Six, defendants must show that plaintiffs are no longer subject to
imprisonment for nonpayment of court debts, or at least that the Judges
inquire into plaintiffs’ ability to pay before their imprisonment.
The Court finds that defendants have not met their formidable burden
of showing mootness on Counts Five and Six. First, and most importantly,
the Judges do not represent that they have ceased imprisoning individuals
for failure to pay court debts by some means other than Collections
Department warrants. Nor do they represent that they now consider ability
to pay before imprisoning such individuals. Unlike the en banc directive
withdrawing the Collections Department’s authority to issue warrants, there
is no formal statement in the record indicating that the Judges’ challenged
practices have changed.
Defendants principally rely on the affidavit of Administrator Kazik to
show mootness. But Administrator Kazik cannot—and does not—represent
30

what the Judges’ current practices are, nor what the Judges will do going
forward. Instead, Administrator Kazik states that “[t]o the best of Judicial
Defendants’ ability, no fines and fee warrants issued by a currently sitting or
prior judge exist, unless there was a determination 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.” 105 At most, this carefully worded
affidavit shows only that at one point in time—when Administrator Kazik
made 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
Judges’ practices. Indeed, as discussed later, the Judges still have enormous
incentives to collect fines and fees. Without evidence of an actual policy
change, the Court cannot simply assume that the Judges have altered their
debt collection practices.
Second, the Judges now handle collection efforts on their respective
dockets,106 and there is evidence in the record that these efforts include
issuing alias capias warrants against criminal defendants for nonpayment of
fines and fees.107 Defendants produced worksheets listing all alias capias

105
106
107

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, 2017.108 Both
sections had issued (and apparently then recalled) alias capias warrants for
failure to pay fines and fees as late as April 2017.109 Moreover, in early 2017,
the Judges met en banc to discuss issues with securing court appearances for
arrestees in a timely manner. The Judges 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 criminal defendants are still
subject to imprisonment on alias capias warrants issued by OPCDC, with no
pre-imprisonment court hearing.
Third, defendants’ corrective efforts are so riddled with exceptions and
omissions as to cast doubt on the sincerity of their actions. Administrator
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 named plaintiff
in this case.111 An alias capias warrant issued against Merren in 1999 after

108
109
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 imprisoned on this warrant in June 2016.113

Defendants offer no

explanation for treating criminal defendants who owe restitution differently
from those who don’t. Additionally, OPCDC still operates a Collections
Department. And, as discussed earlier, the Judges stopped the Collections
Department’s warrant process in 2012 before restarting it in 2013. This
policy reversal undercuts a finding that the Judges have changed their
practices for good.114
Understandably, the Judges would like to see this lawsuit go away. But
they have not done enough to show institutional change. Again, the Judges
have not indicated that they have ceased imprisoning criminal defendants
for failure to pay, or that they now inquire into those criminal defendants’
ability to pay. Evidence in the record confirms that plaintiffs still face the

R. Doc. 161-7 at 1. The Court takes judicial notice of Merren’s OPCDC
docket sheet, attached as an exhibit to plaintiffs’ motion for leave to file their
second amended complaint.
113
Id.
114
The Court did not find this policy reversal sufficient to defeat mootness
on Counts One, Two, and Four in light of the Judges’ en banc directive
revoking the Collections Department’s warrant authority and their follow-up
efforts rescinding Collections Department warrants. Here, the Judges have
not issued any formal statement indicating that they have changed their
practices of imprisoning plaintiffs for nonpayment and not inquiring into
plaintiffs’ ability to pay. Additionally, the Judges’ follow-up efforts were
aimed principally at eliminating Collections Department warrants.
33
112

possibility of alleged constitutional injury if they fail to pay their court debts.
For these reasons, defendants’ voluntary conduct does not moot Counts Five
and Six.
5.

The Named Plaintiffs’ Claims Are Not Moot

The Court next addresses whether plaintiffs’ claims are moot in light of
the apparent cancellation of their court debts. A case will become moot when
“there are no longer adverse parties with sufficient legal interest to maintain
the litigation,” or “when the parties lack a legally cognizable interest in the
outcome” of the litigation. In re Scruggs, 392 F.3d 124, 128 (5th Cir. 2004)
(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 Comm’n v. Geraghty, 445 U.S. 388, 403 (1980).
A case should not be declared moot so “long as the parties maintain a
‘concrete interest in the outcome’ 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 No. 1784 v. Stotts, 467 U.S.
561, 571 (1984)). The bar to overcome mootness is lower than the bar to
establish standing: “there are circumstances in which the prospect that a
34

defendant will engage in (or resume) harmful conduct may be too speculative
to support standing, but not too speculative to overcome mootness.”
Laidlaw, 528 U.S. at 190.
Defendants assert that OPCDC suspended the remaining 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 make two arguments: (1) at least Cain and Brown
retain a personal interest in the outcome of the litigation; and (2) the named
plaintiffs’ claims cannot be mooted because a motion 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 presumes 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 implies that OPCDC has temporarily ceased
enforcing its claim against an individual for her court debts. See MerriamWebster Dictionary Online, www.merriam-webster.com (defining suspend
as “to cause to stop temporarily”; “to defer to a later time on specified
conditions”; “to hold in an undetermined or undecided state awaiting further
information”). By contrast, to waive a debt suggests a decision permanently
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 No. 7, 488 F.2d 880, 883 (5th Cir.
1974) (holding that deferral of payment for a salvage operation did not waive
the resulting maritime lien, “but merely suspend[ed] the remedy on the lien”
until payment came due (emphasis added)). Thus, the plain meanings of
“suspend” and “waive” indicate that defendants may reinstate Cain’s and
Brown’s, but not Maxwell’s, court debts.
Supreme Court precedent makes plain that temporary relief from
injury does not moot a plaintiff’s claim for permanent equitable relief. In
City of Los Angeles v. Lyons, 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 imposed a moratorium
on chokeholds. Id. at 100. As the Court stated in a later opinion, this
36

moratorium “surely diminished 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 moratorium did not
moot the case because “the moratorium by its terms [was] not permanent.”
Lyons, 461 U.S. at 101. By the same logic, this Court finds that temporarily
suspending Cain’s and Brown’s court debts does not moot their claims 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, 2016. 119
Nevertheless, a payment receipt dated October 12, 2016, states that Cain
owes a balance of $251.50 and that the next payment is due on October 31,
2016. 120 Similarly, a minute entry shows that Brown’s court debts were
suspended as of September 23, 2016, 121 but a payment receipt dated
February 10, 2017, 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 remain 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 Judges’ 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 argument, the parties represented that Cain has received a
reimbursement check from OPCDC. It is unclear, however, when or why
Cain received the reimbursement check, or which court costs it reimbursed.
The check is not in the summary judgment record, and the Court cannot
simply assume that OPCDC has reimbursed Cain for all payments made after
the date her debts were suspended. Moreover, defendants have not asserted
that Brown—or anyone else whose debts were suspended—received a
reimbursement check from OPCDC. Cain’s reimbursement check does not
affect the Court’s analysis.
That OPCDC continued to collect payment 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 elements are met: ‘(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 same
complaining party would be subjected to the same action again.’”

Id.

(alteration in original) (quoting Weinstein v. Bradford, 423 U.S. 147, 149
38

(1975)). Defendants suspended Cain’s court debts in April 2016—merely
seven months after this proceeding began. Seven months was too short a
time to resolve this complicated 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 moots their
individual claims, the capable of repetition, yet evading review exception
applies.
Plaintiffs also argue that the named plaintiffs’ claims cannot be mooted
because a motion for class certification is pending.123 Generally, “a class
action becomes moot when the putative representative plaintiff’s claim has
been rendered moot before a class is certified.” Fontenot v. McCraw, 777
F.3d 741, 748 (5th Cir. 2015). But, as the Supreme Court has noted,
There may be cases in which the controversy involving the
named plaintiffs is such that it becomes moot as to them before
the district court can reasonably be expected to rule on a
certification motion. In such instances, whether the certification
can be said to ‘relate back’ to the filing of the complaint may
depend upon the circumstances of the particular case and
especially . . . [whether] otherwise the issue would evade review.

123

R. Doc. 259 at 4.
39

Sosna v. Iowa, 419 U.S. 393, 402 n.11 (1975); see also Genesis Healthcare,
569 U.S. at 75 (“[A]n inherently transitory class-action claim is not
necessarily moot upon the termination of the named plaintiff’s claim.”)
(internal quotation marks omitted)). An example of such a claim is a
constitutional challenge to pretrial detention, which “is by nature
temporary.” Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). The Court in
Gerstein noted: “It is by no means certain that any given individual, named
as plaintiff, would be in pretrial custody long enough for a district judge to
certify the class.”

Id.

In such a case, “the termination of a class

representative’s claim does not moot the claims of the unnamed members of
the class.” Id.
The Supreme Court again addressed a challenge to pretrial detention
in McLaughlin. The named plaintiffs in McLaughlin were incarcerated and
had not yet received a probable cause hearing when they filed suit. 500 U.S.
at 48-49. Before the district court certified the class, the named plaintiffs
either received a probable cause determination or were released. “That the
class was not certified until after the named plaintiffs’ claims had become
moot [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 merits 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 claims “rendered moot by purposive action of the
defendants.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1049
(5th Cir. Unit A July 1981). The Zeidman court held that, when “the plaintiffs
have filed a timely motion for class certification and have diligently pursued
it, the defendants should not be allowed to prevent consideration of that
motion by tendering to the named plaintiffs their personal claims before the
district court reasonably can be expected to rule on the issue.” Id. at 1045.
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 become moot. 124 Id.
at 1050.

The Fifth Circuit has since cast doubt on whether the core holding of
Zeidman remains good law as to claims for money damages. Specifically, the
court has stated that Genesis Healthcare “undermines, at least in money
damages cases, Zeidman’s analogy between the ‘inherently transitory’
exception to mootness and the strategic ‘picking off’ of named plaintiffs’
claims.” Fontenot, 777 F.3d at 750. In Genesis Healthcare, the Supreme
Court declined to apply the “inherently transitory” exception to a claim for
money damages, which “cannot evade review,” “[u]nlike claims for
injunctive relief challenging ongoing conduct.” 569 U.S. at 77. Where, as
41
124

Plaintiffs’ claims 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 timely moved for class certification. 125 The
Court stayed this motion pending resolution of the parties’ cross-motions for
summary judgment. 126 Plaintiffs—both named and unnamed—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
named plaintiffs.
Nevertheless, the Court does not rely on the relation back exception in
determining that this case is not moot. The relation back exception applies
to a class certification motion that is adjudicated after the named plaintiffs’
claims become moot. See Fontenot, 777 F.3d at 748. The Court is not aware
of any authority for applying this exception to summary judgment motions.
To the contrary, the Zeidman court made clear that “[a] named plaintiff
whose individual claim has been rendered moot may in no event argue the
merits of the case before a class has properly been certified; prior to that time
the plaintiff may at most argue the class certification question.” Id. at 1045;

here, plaintiffs seek equitable relief, the “inherently transitory” exception
still applies and Zeidman remains good law.
125
R. Doc. 230.
126
R. Doc. 237.
42

see also Geraghty, 445 U.S. at 404 (“A named plaintiff whose claim expires
may not continue to press the appeal on the merits until a class has been
properly certified.”).
The Court therefore finds that the named plaintiffs’ claims are not
moot for two reasons. First, Alana Cain and Ashton Brown still owe court
debts; defendants’ temporary 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.

Plaintiffs Do Not Request Mandamus

Defendants argue that plaintiffs’ claims for declaratory relief against
the Judges and Administrator Kazik are tantamount to requests for a writ of
mandamus.127 It is well-established that “federal courts have no general
power to issue writs of mandamus to direct state courts and their judicial
officers in the performance of their duties.” Lamar v. 118th Judicial Dist.
Court of Tex., 440 F.2d 383, 384 (5th Cir. 1971); see also In re Campbell, 264
F.3d 730, 731 (7th Cir. 2001) (discussing when mandamus against state
judicial officers may be appropriate).

But federal courts may 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); Holloway v. Walker, 765 F.2d 517, 525
(5th Cir. 1985). Indeed, Section 1983 explicitly recognizes the availability of
such remedies. See 42 U.S.C. § 1983 (providing that, “in any action brought
against a judicial officer for an act or omission 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’ summary judgment motion clearly frames the claims against
the Judges and Administrator 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 Judges to hold
hearings on ability to pay, to cease delegating warrant authority to the
Collections Department, and to stop issuing capias warrants. 128
A writ of mandamus compels the defendant to perform a certain act.
See Mandamus, Black’s Law Dictionary (10th ed. 2014). By contrast, the
declaratory judgments plaintiffs seek on Counts One, Two, Four, Five, and
Six would merely 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 (affirming attorneys’ fees award in case where district court declared
magistrate’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’ claims for declaratory
relief are in fact requests for a writ of mandamus.
7.

Declaratory Relief Is Appropriate

Defendants further argue that the Court lacks the authority to entertain
plaintiffs’ claims for declaratory relief. 130 The Declaratory Judgment Act, 28
U.S.C. § 2201, is “an enabling act, which confers a discretion on the courts”
to decide or dismiss a declaratory judgment suit, “rather than an absolute
right upon the litigant” to bring such a suit. Wilton v. Seven Falls Co., 515
U.S. 277, 287 (1995) (quoting Pub. Serv. Comm’n of Utah v. Wycoff Co., 344
U.S. 237, 241 (1952)); accord Sherwin-Williams Co. v. Holmes County, 343
F.3d 383, 387, 389 (5th Cir. 2003). In analyzing claims under the Act, a court
must determine “(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 dismiss the action.” 131 Sherwin-Williams,
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 moot. Thus, the Court may entertain these claims for declaratory relief.
8.

The Eleventh Amendment Does Not Bar Plaintiffs’
Official-Capacity Claims

Defendants’ final justiciability challenge relates to whether the Judges
enjoy sovereign immunity on plaintiffs’ official-capacity claims against them.
Defendants argue that suing a state official in her official capacity is the same
as suing the state directly.132 This proposition is true for retrospective relief,
but not for prospective relief. Under Ex parte Young, 209 U.S. 123 (1908),
plaintiffs may sue state officials in their official capacity for prospective relief.
See Will 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

The Court has already addressed, and rejected, the argument that it
should exercise its discretion not to decide this case. R. Doc. 119 at 14-19.
Defendants do not renew this argument in their motion for summary
judgment.
132
R. Doc. 250-1 at 10.
46
131

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. Comm’n of Md., 535 U.S. 635, 645 (2002) (allowing plaintiff to seek
both injunctive and declaratory relief “against the individual commissioners
in their official capacities, pursuant to the doctrine of Ex parte Young”).
Thus, defendants’ Eleventh Amendment argument is meritless.
***
Because Counts One, Two, and Four are moot, defendants are entitled
summary judgment on these counts. Having found that Counts Five and Six
remain justiciable, the Court turns to the merits of these claims.
B.

The Judges’ Practice of Imprisoning Individuals for
Failure to Pay Court Debts Without Considering Ability
to Pay Is Unconstitutional

The core of plaintiffs’ constitutional challenge to the Judges’ debt
collection measures is that the Judges imprison poor debtors solely because
they cannot afford to pay court debts. Count Five specifically challenges the
Judges’ practice of failing to inquire into indigent debtors’ ability to pay court
debts before the debtors are imprisoned for nonpayment. 133

As discussed in the next section, Count Five also challenges the
constitutionality of the legislative framework that vests both judicial and
executive power in the Judges.
47
133

1.

The Judges Have a Policy or Practice of Failing to
Conduct Any Inquiry into Plaintiffs’ Ability to
Pay Court Debts Before Plaintiffs Are Imprisoned
for Nonpayment

The facts related to Count Five are undisputed. Most importantly, the
Judges do not routinely solicit financial information from criminal
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 imprisoned
for failure to pay court debts.136 Thus, it is the Judges’ practice not to inquire
into plaintiffs’ ability to pay such debts even though plaintiffs may be
imprisoned for failure to pay.

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 matter, 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 Judges fail to routinely solicit information about
criminal 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 summary judgment. See Fed. R. Civ. P. 56(c)(1); Int’l
Shortstop, 939 F.2d at 1265. Defendants therefore fail to carry their
summary 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
134

The evidence in the record confirms this practice. Each named plaintiff
was imprisoned for failure to pay court debts. But at no point—not at
sentencing, not before their imprisonment, not at a hearing while they were
imprisoned—did a judge inquire into their ability to pay. By way of example,
Ashton Brown was imprisoned for failure to pay court fees from July 23 to
August 7, 2015. 137 No judge inquired into his ability to pay before his
imprisonment.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 himself and his nine-month-old daughter, unless he
paid $100 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

grandmother for help, and only after she made a $100 payment was Brown
released.141

R. Doc. 59-3 at 6.
The court did advise Brown at sentencing that if he did not have the
money to make 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 Judges’ practice of not providing this inquiry at any point
before plaintiffs are imprisoned 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
137

138

Alana Cain was imprisoned for failure to pay restitution and fees from
March 11 to March 18, 2015.142 There is no indication that any judge inquired
into her ability to pay before her imprisonment. 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 income.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—made only $200 per month and struggled to afford food and
clothes.145 The judge did ask Cain when she would be able to continue
making payments.146 After Cain stated that she could continue making
payments upon her release, the judge ordered her release and directed her to
return to court for a status update two weeks later. 147
Some criminal 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

2013.148 He appeared before a judge two weeks later, on November 25, but
was sent back to jail for another week before his release. 149
This evidence suggests that the Judges do not release criminal
defendants imprisoned for failure to pay court debts without a payment, or
some promise of payment. 150 Defendants cite no statutory authority for the
Judges’ actions. 151 This process most resembles contempt of court in which
an individual is imprisoned until she complies with a court order—here, an
order to pay fines and fees. Because plaintiffs may secure their release by
making a payment, their imprisonment for nonpayment is a conditional
penalty. Hicks v. Feiock, 485 U.S. 624, 633 (1988). Contempt of court that
imposes a conditional penalty is civil, rather than criminal, “because it is
specifically designed to compel the doing of some act,” rather than to punish.
Id.

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 sometimes includes payment 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 payment of restitution and certain fees as a condition of probation);
id. arts. 899, 900 (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
148

There is no genuine dispute, therefore, that the Judges have a practice
of not inquiring into plaintiffs’ ability to pay court debts when plaintiffs are
essentially held in civil contempt and imprisoned for nonpayment.
2.

The Judges’ Failure to Inquire into Plaintiffs’
Ability to Pay Court Debts Before Plaintiffs Are
Imprisoned for Nonpayment Violates Due
Process

Plaintiffs argue that the Judges’ failure to inquire into plaintiffs’ ability
to pay court debts violates the Fourteenth Amendment.152 Although “[d]ue
process and equal protection principles converge” in cases involving the
criminal justice system’s treatment of indigent individuals, Bearden v.
Georgia, 461 U.S. 660, 665 (1983), plaintiffs’ argument sounds in procedural
due process. Thus, the familiar framework set out in Mathews v. Eldridge,
424 U.S. 319 (1976), applies. See Turner v. Rogers, 564 U.S. 431, 444-45
(2011) (applying Mathews v. Eldridge to civil contempt proceedings). The
Mathews v. Eldridge framework calls for the Court to consider three factors:
“(1) the nature of ‘the private interest that will be affected,’ (2) the
comparative ‘risk’ of an ‘erroneous deprivation’ of that interest with and
without ‘additional or substitute procedural safeguards,’ and (3) the nature
and magnitude of any countervailing interest in not providing ‘additional or

152

R. Doc. 251-1 at 38-39.
52

substitute procedural requirements.’” Id. (quoting Mathews, 424 U.S. at
335).
Supreme Court precedent speaks directly to the kind of procedural
protections the Judges must provide to plaintiffs.

This precedent is

grounded in the well-established principle that an indigent criminal
defendant may not be imprisoned solely because of her indigence. See Tate
v. Short, 401 U.S. 395, 398 (1971); see also United States v. Voda, 994 F.2d
149, 154 n.13 (5th Cir. 1993) (“Constitutionally, courts are limited in the
penalty they can impose for nonpayment of criminal fines because of
inability to pay.”). Admittedly, there is nothing necessarily unconstitutional
about imprisoning a convicted criminal defendant for failing to pay fines and
fees. As the Supreme Court recognized, this custom “dates back to medieval
England and has long been practiced in this country.” Williams v. Illinois,
399 U.S. 235, 239 (1970) (footnote omitted). But the Supreme Court has
imposed constitutional limits on this practice when applied to indigent
criminal defendants. In Williams, for example, the Court held that “an
indigent criminal defendant may not be imprisoned in default of payment of
a fine beyond the maximum [term of imprisonment] authorized by the
statute regulating the substantive offense.”

53

399 U.S. at 241.

Such

imprisonment constitutes “impermissible discrimination that rests on ability
to pay.” Id.
Following Williams, the Supreme Court addressed a constitutional
challenge to a state’s method of collecting fines from an indigent criminal
defendant.

Tate, 401 U.S. 395.

The criminal defendant in Tate had

accumulated fines for traffic offenses, which were punishable only by fine.
Id. at 396-97. Because the defendant was indigent when the state court
imposed 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 imposing a fine as a sentence and
then automatically converting it into a jail term solely because the defendant
is indigent and cannot forthwith pay the fine in full.” Id. at 398 (citation
omitted).
Over a decade later, in Bearden, the Supreme Court addressed a
similar 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-imposed 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 must inquire into the reasons for the failure
to pay. If the probationer willfully refused to pay or failed to
make sufficient bona fide efforts legally to acquire the resources
to pay, the court may revoke probation and sentence the
defendant to imprisonment . . . . If the probationer could not pay
despite sufficient bona fide efforts to acquire the resources to do
so, the court must consider alternate measures of punishment
other than imprisonment. Only if alternate measures are not
adequate to meet the State’s interests in punishment and
deterrence may the court imprison a probationer who has made
sufficient bona fide efforts to pay. To do otherwise would deprive
the probationer of his conditional freedom simply because,
through no fault of his, he cannot pay the fine.
Id. at 672-73. The state court imprisoned 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 time for payments or making
alternative orders.” Id. at 674. In this way, “the court automatically turned
a fine into a prison sentence.” Id.
More recently, the Supreme Court in Turner reiterated the importance
of the ability-to-pay determination prior to imprisonment, this time in the
context of a civil contempt proceeding. The Court applied the Mathews v.
Eldridge framework to determine whether an indigent defendant has “a right
to state-appointed counsel at a civil contempt proceeding, which may lead to
his incarceration.”

Turner, 564 U.S. at 441.
55

The Court noted “the

importance of the interest at stake”—the defendant’s interest in preventing
the “loss of [his] personal liberty through imprisonment.” Id. at 445. Given
the importance of this interest, the Court stated, “it is obviously important to
assure accurate decisionmaking 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 importance of ability to pay, fair
opportunity to present, and to dispute, relevant information [concerning
ability to pay], and court findings.” Id. at 448.
The Court finds that Bearden is controlling, and that Turner is
instructive. Admittedly, there are some differences between those cases and
this one. For example, unlike the court in Bearden, OPCDC does not impose
a term of imprisonment upon criminal 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. 2008) (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. 899900 (describing probation revocation procedures). But “[n]othing in the
language of the Bearden opinion prevents its application to any given
56

enforcement mechanism.” United States v. Payan, 992 F.2d 1387, 1396 (5th
Cir. 1993). And civil contempt in this case, like probation revocation in
Bearden, works the same constitutional injury: plaintiffs, like the criminal
defendant in Bearden, are subject to imprisonment for failure to pay courtimposed fines and fees.
Like the defendant in Turner, plaintiffs are subject to imprisonment as
the result of civil contempt-like proceedings. Admittedly, neither party in
Turner was represented by counsel during the civil contempt proceeding,
and the complaining party was not the state, 564 U.S. at 448-49; here, by
contrast, the complaining party—OPCDC—is both an organ of the state and
represented by counsel (the Judges), and the criminal defendants generally
are also represented by counsel. But Turner does stand for the broader
proposition that the ability-to-pay inquiry required by Bearden must have
some procedural safeguards.
Bearing in mind that Bearden and Turner speak directly to the
procedural requirements of an ability-to-pay inquiry, the Court now turns to
the application of the Mathews framework 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, 504 U.S. 71, 80 (1992)). Plaintiffs’
57

liberty interest weighs heavily in favor of procedural safeguards provided
before imprisonment.
Second, the risk of erroneous deprivation without an inquiry into
ability to pay is high. At least some criminal defendants, including the
named plaintiffs, are subject to imprisonment for failure to pay fines and fees
despite their indigence. OPCDC necessarily determined that all named
plaintiffs, except Reynaud Variste, were indigent when it appointed counsel
for them during their criminal proceedings. 153 Moreover, Louisiana courts
presume that a criminal defendant who cannot afford counsel is indigent for
purposes of ability to pay court debts. See State v. Williams, 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. 2017)
(noting that appointment of counsel is “presumptive evidence of indigence”);
State v. Hebert, 669 So. 2d 499, 502 (La. App. 4 Cir. 1996) (“[A] defendant
represented by appointed counsel . . . is presumed indigent and cannot be
ordered to serve additional jail time in lieu of the payment of costs.”). The
inquiry itself surely must involve at least notice and opportunity to be heard,

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 deemed ‘indigent’ who is unable,
without substantial financial hardship to himself or to his dependents, to
obtain competent, qualified legal representation on his own.”).
58
153

as suggested by Turner; an ability-to-pay inquiry without these basic
procedural protections would likely be ineffective.
Third, the Judges fail to point to any countervailing interest in not
inquiring into plaintiffs’ ability to pay before imprisonment. According to
Administrator Kazik, the Judges consider ability to pay if a criminal
defendant raises the issue. 154

But Bearden and Turner require more.

Bearden commands that before a court imprisons an individual for failure to
pay a court-imposed fine or fee, the court must 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 must
consider alternative measures. Id. Turner holds that this ability-to-pay
inquiry must have at least some procedural safeguards. The record shows
that at least until 2015, the Collections Department gave notice to criminal
defendants before issuing alias capias warrants for failure to pay, and these
criminal defendants usually appeared before a judge while they were
imprisoned for failure to pay. The Judges 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 limited notice and

R. Doc. 250-3 at 5 (Kazik Affidavit stating that “[i]f a criminal
defendant raises the issue of their ability to pay, the judges consider it”).
59

154

opportunity to be heard formerly provided by OPCDC, the Court cannot
discern any state interest in the Judges’ failure to provide notice and an
opportunity to be heard on ability to pay before imprisonment.
Moreover, there is no authority for the proposition that a criminal
defendant must raise the issue of her inability to pay. As the Court explained
in an earlier order, the Judges’ reliance on Garcia v. City of Abilene, 890
F.2d 773 (5th Cir. 1989), and Sorrells v. Warner, 21 F.3d 1109 (5th Cir. 1994)
(unpublished), is unavailing.155 In both cases, the criminal 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 made for such a proceeding” in the first place);
De Luna v. Hidalgo County, 853 F. Supp. 2d 623, 646-47 (S.D. Tex. 2012)
(citing Doe v. Angelina County). Regardless, Turner clearly suggests that
the state provide the procedural protection of notice that ability to pay is
important; a contrary rule, requiring the criminal defendant to raise the issue
on her own, would undermine Bearden’s command that a criminal

155

R. Doc. 136 at 15-16.
60

defendant not be imprisoned solely because of her indigence. 461 U.S. at
672-73.
It is undisputed that the Judges provide no ability-to-pay inquiry, nor
any further procedural safeguards, to indigent criminal defendants who are
subject to imprisonment for failure to pay court debts. Under Bearden and
Turner, the Judges must inquire into plaintiffs’ ability to pay before their
imprisonment. This inquiry must involve certain procedural safeguards,
especially notice to the individual of the importance of ability to pay and an
opportunity to be heard on the issue. If an individual is unable to pay, then
the Judges must consider alternative measures before imprisoning the
individual.
Plaintiffs are entitled summary judgment on Count Five to the extent
they seek a declaration that the Judges’ practice of not inquiring into
plaintiffs’ ability to pay before they are imprisoned for nonpayment violates
the Fourteenth Amendment.
C.

The Judges’ Control over Both Fines and Fees Revenue
and Ability-to-Pay Determinations Violates Due
Process

Count Five also challenges the dual role the Judges play: they are
responsible for both determining criminal defendants’ ability to pay fines
and fees and managing a portion of the revenue derived from those fines and
61

fees.156 Plaintiffs argue that the Judges’ power over this revenue creates a
financial conflict of interest, depriving criminal defendants of a neutral
tribunal to determine their ability to pay. 157
1.

Legal Background

“Trial before an unbiased judge is essential to due process.” Pub.
Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001) (quoting Johnson v.
Mississippi, 403 U.S. 212, 216 (1971)); see also Brown v. Edwards, 721 F.2d
1442, 1451 (5th Cir. 1984) (“The right to a judge unbiased by direct pecuniary
interest in the outcome of a case is unquestionable.”). Although due process
requires a judge’s disqualification “only in the most 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 maintained pecuniary interests in
cases before them.
In Tumey 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 mayor served as judge. Id. at
521. The money raised by fines levied in these courts was divided between
the state, the village general fund, and two other village funds. Id. at 521-

Plaintiffs do not challenge the Judges’ initial assessment of fines and
fees, and the Court does not address it.
157
R. Doc. 251-1 at 38.
62
156

22. One of these other funds covered expenses associated with enforcing the
Prohibition Act, including nearly $700 paid to the mayor “as his fees and
costs, in addition to his regular salary.” Id. at 522. The Supreme Court
overturned Tumey’s conviction, and held that the mayor, acting as judge, was
disqualified from deciding Tumey’s case “both because of his direct
pecuniary interest in the outcome, and because of his official motive to
convict and to graduate the fine to help the financial needs of the village.” Id.
at 535.
In Ward v. Village of Monroeville, 409 U.S. 57 (1972), the Court
considered a challenge to traffic fines imposed by another Ohio mayor’s
court. Fines generated by the mayor’s court at issue in Ward provided a
“major part” of the total operating funds for the municipality that the mayor
oversaw. Id. at 58. The Court viewed the case as controlled by Tumey and
noted, “that the mayor [in Tumey] shared directly in the fees and costs did
not define the limits of the principle” of judicial bias articulated in that case.
Id. at 60. Instead, the Court offered a general test to determine whether an
arrangement of this type compromises a criminal defendant’s right to a
disinterested and impartial judicial officer:
[T]he test is whether the [judge’s] situation is one “which would
offer a possible temptation to the average man as a judge to forget
the burden of proof required to convict the defendant, or which
63

might lead him not to hold the balance nice, clear, and true
between the state and the accused.”
Id. (quoting Tumey, 273 U.S. at 532). In holding that the mayor’s court in
Ward violated due process, the Court found that the impermissible
temptation “[p]lainly . . . may also exist when the mayor’s executive
responsibilities for village finances may make him partisan to maintain the
high level of contribution from the mayor’s court.” Id.
In some cases, a judicial officer’s institutional interest may be too
remote to create an unconstitutional conflict of interest. In Dugan v. Ohio,
277 U.S. 61 (1928), for example, a mayor with judicial functions also served
as one of five commissioners. Collectively, these commissioners exercised
the legislative power of the city, and shared executive powers with the city
manager (who was the “active executive”). Id. at 63. The Court held that the
mayor’s relation “to the executive or financial policy of the city” was too
“remote” to interfere with his judicial functions. Id. at 65.
The Fifth Circuit applied Tumey and Ward to strike down Mississippi’s
system of compensating justices of the peace. Brown v. Vance, 637 F.2d 272
(5th Cir. Jan. 1981). By law, the justices of the peace were paid based on the
volume 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] criminal
defendants of their due process right to a trial before an impartial tribunal.”
Id.
2.

The Judges Face a Conflict of Interest When They
Determine Ability to Pay Fines and Fees

It is undisputed that the Judges are responsible for both managing
fines and fees revenue and determining whether criminal defendants are
able to pay those same fines and fees, once imposed. Fines and fees revenue
goes into the Judicial Expense Fund,158 which the Judges may use “for any
purpose connected with, incidental to, or related to the proper
administration or function of the court or the office of the judges thereof,”
La. Rev. Stat. § 13:1381.4(C), except to supplement their own salaries, id. §
13:1381.4(D). In their capacity as administrators and executives of OPCDC,
the Judges exercise total control over the Judicial Expense Fund. 159 The
Judges use this money primarily to fund their own staffs.160
Various statutes give the Judges 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 administered by the judges of the criminal
district court of Orleans Parish.” Id. § 15:571.11(D). This revenue is “to be
used in defraying the expenses of the criminal courts of the parish,
extraditions, and such other expenses pertaining to the operation of the
criminal court of Orleans Parish.” Id.
Second, the Judges may impose costs of up to $100 on convicted
criminal defendants (other than those who are indigent); Louisiana law
directs the Judicial Administrator to place these sums in a “Criminal Court
Cost Fund” to be administered by the Judges. Id. § 13:1377. Each of the
Judges may authorize disbursements from this fund “to assist in the
operation and maintenance” of OPCDC. Id. § 13:1377(C).
Third, and most importantly, the Judges may impose a fee of up to
$500 on a misdemeanant and up to $2,500 on a felon; Louisiana law directs
the Judicial Administrator to place these sums in the Judicial Expense Fund.
Id. § 13:1381.4. The same provision also imposes a $5 fee on every convicted
criminal defendant, and directs the Judicial Administrator to place these
sums in the Judicial Expense Fund. Id. § 13:1381.4(A)(1).
Fourth, the Judges may impose a $14 fee on convicted, non-indigent
criminal defendants; this cost goes into an Indigent Transcript Fund “to
compensate court reporters for the preparation of all transcripts for indigent
66

defendants.” Id. § 13:1381.1(A). Louisiana law authorizes the Judges, 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 Judges impose additional costs under Louisiana Code of
Criminal Procedure Article 887(A) for the Indigent Transcript Fund. 161
Fifth, the Judges (or presiding judge) may establish a drug division and
may administer a probation program for criminal defendants charged with
an alcohol- or drug-related offense. La. Rev. Stat. § 13:5304. Louisiana law
requires that individuals in this program pay for their own drug testing,
“unless the court determines that he is indigent.” Id. § 13:5304(B)(3)(e).
Although several of these fees appear to be dedicated to certain
purposes, the revenue all goes into the Judicial Expense Fund. 162
Approximately $1,000,000 from various fines and fees goes into the OPCDC
budget each year. 163 This funding structure puts the Judges in the difficult

R. Doc. 248 at 4.
R. Doc. 251-2 at 12. In support of this fact, plaintiffs point to
spreadsheets showing that from 2013 through 2015, all fines and fees
revenue went to the general fund (i.e., the Judicial Expense Fund) rather
than the restricted fund. R. Doc. 251-5 at 382-83. In 2012, 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
2012, $973,311 in 2013, $1,084,968 in 2014, and $1,188,420 in 2015. R. Doc.
248 at 2.
67
161

162

position of not having sufficient funds to staff their offices unless they impose
and collect sufficient fines and fees from a largely indigent population of
criminal defendants.
The Judges’ power over fines and fees revenue creates a conflict of
interest when those same Judges determine (or are supposed to determine)
whether criminal defendants are able to pay the fines and fees that were
imposed at sentencing. As explained earlier, the Judges have a constitutional
obligation to inquire into criminal defendants’ ability to pay court debts. But
the Judges have a financial stake in the outcome of ability-to-pay
determinations; if they determine that a criminal defendant has the ability
to pay, and collect money from her, then the revenue goes directly into the
Judicial Expense Fund. Cf. United Church of the Med. Ctr. v. Med. Ctr.
Comm’n, 689 F.2d 693, 699 (7th Cir. 1982) (“In this case the Commission
has a pecuniary interest in the outcome of the reverter proceedings, because
if the Commission finds a nonuse or disuse, the property reverts to the
Commission . . . . This is sufficient . . . to mandate disqualification of the
Commission in the reverter proceeding . . . .”). The Judges therefore have an
institutional incentive to find that criminal defendants are able to pay fines
and fees.

68

The Judges’ dual role, as adjudicators who determine ability to pay and
as managers of the OPCDC budget, offer a possible temptation to find that
indigent criminal defendants are able to pay their court debts. This “inherent
defect in the legislative framework” arises not from the bias of any particular
Judge, but “from the vulnerability of the average man—as the system works
in practice and as it appears to defendants and to the public.” Brown, 637
F.2d at 284.
The Judges’ 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. 2004) (noting that evidence of actual bias includes
“procedural irregularities in the decision to assess [a] fine”). As is the
dramatic increase in assessments for indigent transcript fees between 2012
and 2013—from $9,841.50 to $271,581.75—when OPCDC shifted revenue
from such fees from the restricted fund to the Judicial Expense Fund. 164
Defendants insist that they do not benefit from this revenue, which solely
aids indigent criminal defendants. 165 This assertion is undercut by financial
statements for the Judicial Expense Fund, which show expenditures on
transcripts of $0 in 2013 and 2015 and $7,044 in 2014. 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 Judges have
sought ways to increase collections from criminal defendants. At a City
Council hearing in July 2014, a judge explained that the Judges were sharing
ideas “in an effort to increase [their] collection” of fines and fees. 167 The
Collections Department itself was created by the Judges in the 1980s to
facilitate collection efforts.168 Moreover, at least from 2013 through 2015,
the amount of fees (which go entirely to OPCDC) imposed by the Judges far
exceeded the amount of fines (only half of which goes to OPCDC). 169 This
suggests that the Judges prefer to impose fees for OPCDC rather than share
fines with the DA.
Defendants’ reliance on Broussard v. Parish of New Orleans, 318 F.3d
644 (5th Cir. 2003), is misplaced. The plaintiffs in Broussard challenged the
constitutionality of the Louisiana bail fee statutes on a number of grounds.
As relevant here, the plaintiffs argued that these statutes violated Tumey and
Ward by “tempt[ing] sheriffs to stack charges against arrestees in violation
of their due process rights.” Id. at 661. The court found that Tumey and

R. Doc. 251-5 at 284. Defendants object to City Council transcripts as
incomplete and taken out of context. R. Doc. 255-5 at 18. But the Judges’
statements are admissible as admissions of party opponents. Fed. R. Evid.
801(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.
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167

Ward 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 maintain a level of impartiality equal to that
expected of judges.” Id. Unlike the sheriffs in Broussard, the Judges in this
case do exercise a judicial function when they are required to determine
ability to pay fines and fees. Thus, unlike in Broussard, the Ward test applies
to whether the Judges have an unconstitutional conflict of interest.
That the Judges have an institutional, rather than direct and
individual, interest in maximizing fines and fees revenue is immaterial. See
Chrysler Corp. v. Tex. Motor Vehicle Comm’n, 755 F.2d 1192, 1199 (5th Cir.
1985) (“Certainly the due process principle distilled from the Tumey line
reaches beyond immediate economic stakes to include economic interests
said to be ‘indirect’ or ‘institutional.’”). Ward itself involved a mayor who
had no direct, personal interest in traffic fine revenue; his interest related
solely to his “executive responsibilities for village finances.” 409 U.S. at 60.
Likewise, the Judges’ interest in fines and fees revenue is related to their
executive responsibilities for OPCDC finances.
Additionally, that the Judges manage court funds collectively does not
render their institutional interest too remote. Unlike in Dugan, where the
mayor was only one member of a five-person commission that shared
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executive power with the city manager (who was the acting executive),
collectively the Judges exercise all executive power over OPCDC’s share of
fines and fees revenue. Moreover, the Supreme Court has applied Tumey
and Ward to the members of a state board of optometry, all of whom had a
personal interest in revoking the licenses of optometrists employed by
corporations. Gibson v. Berryhill, 411 U.S. 564, 578 (1973). The Court held
that the board members were disqualified from adjudicating charges against
such optometrists.

Id.; cf. Chrysler, 755 F.2d at 1199 (finding no

impermissible bias where only four out of nine commissioners potentially
had conflict of interest).
Plaintiffs have established that the Judges’ dual role creates a “possible
temptation . . . not to hold the balance nice, clear, and true between the state
and the accused.” Ward, 409 U.S. at 60 (quoting Tumey, 273 U.S. at 532).
By no fault of their own, the Judges’ “executive responsibilities for [court]
finances may make [them] partisan to maintain the high level of
contribution,” in the form of fines and fees, from criminal defendants. Id.
3.

The Judges’ Conflict of Interest Is Substantial

Plaintiffs must also establish that the Judges’ conflict of interest is
substantial. In Tumey, the Court noted that “[t]he minor penalties usually
attaching to the ordinances of a village council, or to the misdemeanors in
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which the mayor may pronounce final judgment without a jury, do not
involve any such addition to the revenue of the village as to justify the fear
that the mayor would be influenced in his judicial judgment by that fact.”
273 U.S. at 534. According to the Ninth Circuit, the proper question is
“whether the official motive 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
Commonwealth of N. Mariana Islands v. Kaipat, 94 F.3d 574, 575, 582 (9th
Cir. 1996)).
The Judges’ institutional interest in maximizing fines and fees revenue
is substantial. Fines and fees revenue is obviously important to the Judges;
fines and fees provide approximately 10% of the total OPCDC budget and one
quarter of the Judicial 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
maximum of 9% of municipality’s general fund derived from mayor’s court
revenue). Judge Zibilich emphasized the importance of this revenue during
a City Council hearing, stating that the fines and fees revenue “probably
represents fully a fourth of the monies that we need to be operational, and if
we are handcuffed in that particular regard, that money[’s] replacement’s

170

R. Doc. 248 at 2; R. Doc. 248-1 at 1-4.
73

going to have to come from some place.” 171 The Judges spend most of the
Judicial Expense Fund on salaries and benefits for their employees (though
not themselves), and most of the money for these salaries and benefits comes
from the Judicial Expense Fund. 172
Moreover, the aggregate amount at stake in determining criminal
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 amounts that go uncollected run in the hundreds
of thousands of dollars. In 2013, for example, OPCDC assessed $1,517,031.17
in Judicial Expense Fund fees, Indigent Transcript Fund fees, and drug
testing fees—the three largest categories of fees that go into the Judicial
Expense Fund. 174 OPCDC collected only $805,067.12 in these fees. 175 The
amount uncollected, $711,964.05, was equal to 17% of the Judicial Expense

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 may be collected in
later years. But the record does not include time frames for collections of
specific assessments.
74
171

172

Fund revenue in 2013.176 That same figure was 14% in 2014, and 18% in
2015.177
Both Administrator Kazik and Judge Zibilich have suggested that
collection rates are low partly because most criminal defendants are
indigent. In a 2014 letter requesting a higher appropriation from the City of
New Orleans, Administrator Kazik explained that most 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 unemployed 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 meeting, Judge Zibilich noted that nearly 95% of the criminal
defendants in OPCDC cannot afford an attorney, and stated: “If they can’t
afford an attorney, just imagine how difficult it’s going to be for us to have to
chase them around the block to try to get money from them.” 180
It is undisputed that OPCDC depends heavily on fines and fees
revenue, that many criminal defendant subject to these fines and fees are

See id. at 2 (2013 general fund revenue was $4,100,413).
See id. at 3 (2014 general fund revenue was $3,928,025); id. at 4 (2015
unrestricted fund revenue was $3,940,535); id. at 8-9 (2014 and 2015
assessments); id. at 12-13 (2014 and 2015 collections).
178
R. Doc. 251-5 at 174.
179
Id.
180
Id. at 286.
75
176
177

indigent, and that collection rates are only 40% to 50%. Based on these facts,
it is clear the Judges’ motive to maximize fines and fees revenue is strong
enough reasonably to warrant fear of partisan influence on ability-to-pay
determinations. See Alpha Epsilon, 114 F.3d at 847 (9th Cir. 1997). Thus,
plaintiffs have established that the Judges face a substantial conflict of
interest when they determine ability to pay fines and fees (or are supposed
to do so).
This conflict of interest exists by no fault of the Judges themselves. It
is the unfortunate result of the financing structure, established by governing
law, that forces the Judges to generate revenue from the criminal defendants
they sentence. Of course, the Judges would not be in this predicament if the
state and city adequately funded OPCDC. So long as the Judges control and
heavily rely on fines and fees revenue, however, the Judges’ adjudication of
plaintiffs’ ability to pay those fines and fees offends due process. Thus,
plaintiffs are entitled summary judgment on Count Five to the extent they
seek a declaration that the Judges’ institutional incentives create an
impermissible conflict of interest when they determine, or are supposed to
determine, plaintiffs’ ability to pay fines and fees.

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D.

Plaintiffs Are Not Entitled Summary Judgment on
Count Six

Count Six is an equal protection challenge against defendants’ debt
collection practices. Plaintiffs argue that these practices are harsher than
debt collection measures available to private creditors. 181
Plaintiffs attempt to show discrimination on the face of the Louisiana
statutory framework for contempt proceedings. See, e.g., Lewis v. Ascension
Par. Sch. Bd., 72 F. Supp. 3d 648, 662-63 (M.D. La. 2014) (distinguishing
explicit classification from discriminatory application of facially neutral
law); see also Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 543-45 (3d Cir.
2011) (same). Plaintiffs principally rely on James v. Strange, 407 U.S. 128
(1972), where the Supreme 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 exemptions Kansas has erected for other civil judgment debtors,”
such as “the exemption of his wages from unrestricted garnishment.” Id. at
135.

181

The Court struck down the statute as “embod[ying] elements of

R. Doc. 251-1 at 53.
77

punitiveness and discrimination which violate the rights of citizens to equal
treatment under the law.” Id. at 142.
Plaintiffs argue that defendants’ practice of jailing criminal defendants
is similarly discriminatory. They note that Louisiana has abolished the writ
of capias ad satisfaciendum, which allowed a private creditor to imprison a
debtor until her judgment was satisfied.

See La. Rev. Stat. § 13:4281

(abolishing writ); Capias, Black’s Law Dictionary (defining capias ad
satisfaciendum as “[a] postjudgment writ commanding the sheriff to
imprison the defendant until the judgment is satisfied”). According to
plaintiffs, a private creditor seeking to enforce a judgment against a debtor
may now seek contempt of court. A debtor in that situation has various
procedural protections under Louisiana law. For example, the court must
issue a rule “to show cause why [the debtor] should not be adjudged guilty of
contempt”; this rule to show cause must be served on the debtor at least 48
hours before trial; and if the court finds the debtor guilty, it must issue “an
order reciting the facts constituting the contempt.” La. Code Civ. Proc. art.
225.
By law, criminal defendants have similar procedural protections in
contempt proceedings: the judge must issue a rule to show cause; this rule
must be served on the criminal defendant at least 48 hours before trial; and
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if the court finds the defendant guilty, it must issue “an order reciting the
facts constituting the contempt.” La. Code Crim. Proc. art. 24. Thus, the
statutory procedures for contempt proceedings are essentially the same for
both civil and criminal defendants.

Unlike in James, there is no

discrimination on the face of these statutes. Plaintiffs are not entitled
summary judgment on Count Six.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs’ motion for

summary judgment on Count Five. The Court GRANTS defendants’ motion
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.

New Orleans, Louisiana, this _____ day of December, 2017.
13th
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

79