Cain et al v. New Orleans City et al

Filing 318

ORDER AND REASONS granting 295 Motion for Summary Judgment and 296 Motion to Certify Class. For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment on Count Six. Count Six is DISMISSED WITH PREJUDICE. Plaintif fs' motion for class certification is GRANTED. The following class is certified as to the first part of Count Five: all persons who owe or will incur court debts arising from cases adjudicated in OPCDC. The following subclass is also certified as to the second part of Count Five: all class members whose debts are at least partly owed to the OPCDC Judicial Expense Fund. Signed by Judge Sarah S. Vance on 8/2/2018. (Reference: All cases)(cg)

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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
Before the Court are plaintiffs’ motion for class certification 1 and
defendants’ motion for summary judgment on Count Six. 2 For the following
reasons, the Court grants both motions.

I.

BACKGROUND
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 (OPCDC) collects post-judgment
court debts from indigent criminal defendants. These named plaintiffs are
former criminal defendants in OPCDC.3

1
2
3

R. Doc. 296.
R. Doc. 295.
See R. Doc. 248 at 4-5.

All named plaintiffs, except

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Reynaud Variste, were appointed counsel.4 The Court has held that Reynaud
Variste, Reynajia Variste, Long, and Maxwell no longer have live claims for
equitable relief. 5
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), and OPCDC Judicial Administrator
Robert Kazik.
A.

Factual Background

The named plaintiffs are among the thousands of individuals who are
prosecuted and sentenced in OPCDC each year.6 The Judges impose various
costs—collectively known as fines and fees or court debts—on convicted
criminal defendants at their sentencing. First, the Judges may impose a fine,
the proceeds of which are divided evenly between OPCDC and the District
Attorney (DA). La. R.S. § 15:571.11(D). Second, the Judges may order a
criminal defendant to pay restitution to victims. La. Code Crim. Proc. art.

R. Doc. 59-3 at 2, 6, 9, 18, 23; R. Doc. 95-7 at 1.
See R. Doc. 109 at 19-21; R. Doc. 279 at 43.
6
See R. Doc. 248 at 5-6. The Court recites only those facts necessary to
resolve the instant motions. For a more extensive discussion of the facts, see
the Court’s December 13, 2017 order, R. Doc. 279.
2
4
5

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883.2. Third, the Judges impose various fees and court costs that go to
OPCDC and other entities, such as the Orleans Public Defender, the DA, and
the Louisiana Supreme Court. See La. R.S. § 13:1377; id. § 13:1381.1; id. §
13:1381.4; La. Code Crim. Proc. art. 887(A). After sentencing, OPCDC may
further assess criminal defendants for the costs of drug treatment and drug
testing. La. R.S. § 13:5304.
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 was also ordered to pay $1,800 in restitution. 8
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. 9 The Collections
Department created payment plans for criminal defendants, accepted
payments, and granted extensions.10 Some Judges also delegated authority
to the now-defunct Collections Department to issue alias capias warrants
against criminal defendants who failed to pay court debts.11 Each named

7
8
9
10
11

R. Doc. 248 at 4-5.
R. Doc. 59-3 at 2.
R. Doc. 248 at 7.
Id.
Id.
3

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plaintiff was arrested on such a warrant, and imprisoned for periods ranging
from six days to two weeks.12
Alana Cain was arrested pursuant to an alias capias warrant on March
11, 2015.13 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. 14 At that hearing, the judge asked Cain when she would be able
to continue making payments. 15 Cain explained that she had missed a
payment after giving birth a few weeks earlier, but could continue making
payments upon her release. 16 The judge ordered her release and directed her
to return to court for a status update two weeks later.17 OPCDC suspended
Cain’s court debts on April 7, 2016,18 although Cain made further payments
toward her court debts after that date.19
Ashton Brown spent two weeks in jail before his family secured his
release by making a $100 payment to OPCDC.20 An alias capias warrant was

Id. at 4; R. Doc. 251-2 at 23; R. Doc. 255-5 at 25.
R. Doc. 251-5 at 369; see also R. Doc. 59-3 at 2 (warrant issued on
March 4, 2015).
14
R. Doc. 251-2 at 23; R. Doc. 255-5 at 25.
15
R. Doc. 95-3 at 30.
16
Id. at 28-31.
17
Id. at 32.
18
R. Doc. 250-3 at 22
19
See R. Doc. 230-3 at 1-2 (payment receipts dated August 26, 2016, and
October 12, 2016).
20
R. Doc. 251-2 at 23; R. Doc. 255-5 at 25.
4
12
13

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issued on July 16, 2015, and Brown was arrested on July 23.21 Brown
appeared in court without counsel on August 6; the court agreed to release
Brown upon payment of $100 to OPCDC.22 Brown’s family made this
payment the next day, and Brown was released.23

OPCDC suspended

Brown’s court debts on September 23, 2016,24 although Brown, like Cain,
made further payments after that date.25
Reynajia Variste was arrested pursuant to an alias capias warrant on
May 28, 2015.26 On June 2, one of her family members paid $400 to OPCDC
in order to secure her release. 27 Although Variste did not appear before a
judge on that date, her attorney did.28 OPCDC waived Variste’s outstanding
debt on August 31, 2016. 29
Vanessa Maxwell was arrested on May 10, 2015, on an alias capias
warrant. 30 On May 12, she filed a grievance with the Orleans Parish Sheriff’s
Office seeking a new date to make a payment. 31 The office responded that

21
22
23
24
25
26
27
28
29
30
31

R. Doc. 59-3 at 6.
Id.
Id.
R. Doc. 250-3 at 23.
R. Doc. 230-3 at 3 (payment receipt dated February 10, 2017).
R. Doc. 95-6 at 1.
Id. at 1-2, 22.
Id. at 1.
R. Doc. 250-3 at 25.
R. Doc. 95-8 at 2; R. Doc. 251-5 at 370.
R. Doc. 251-5 at 362.
5

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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.”32
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.”33 Maxwell finally appeared before a judge,
with counsel, on May 22, 2015. 34 The judge ordered her release without
payment.35 Maxwell paid off her court debt on June 2, 2016. 36
After this suit was filed, the Judges revoked the Collections
Department’s authority to issue warrants.37 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. 38 In doing so, the Judges wrote off $1,000,000

32
33
34
35
36
37
38

Id.
Id.
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.
6

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in court debts. 39 Each Judge now “handles collection-related matters on
their respective dockets.”40
Nevertheless, at least some active warrants for failure to pay restitution
still exist.41 And the Judges themselves now issue alias capias warrants for
failure to pay fines and fees. 42 There is no evidence that the Judges generally
consider 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 to pay court debts, 43
though they state that they do consider ability to pay when the issue is
brought to their attention.44
In addition to their judicial duties, the Judges manage the budget of
OPCDC.45

From 2012 through 2015, the court’s revenue ranged from

$7,567,857 (in 2012) to $11,232,470 (in 2013). 46 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

39
40
41
42
43
44
45
46

Id.
Id. at 5.
Id.
See, e.g., id. at 16, 21.
R. Doc. 251-2 at 17.
R. Doc. 250-2 at 12; R. Doc. 259-1 at 8.
R. Doc. 251-2 at 3; R. Doc. 255-5 at 5.
R. Doc. 248 at 2.
7

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court’s general operating fund.47 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.” La. R.S. § 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. 48
From 2012 through 2015, the Judicial Expense Fund’s annual revenue
was approximately $4,000,000. 49 Roughly half of this revenue came from
other governmental entities, especially the City of New Orleans. 50 About
$1,000,000 came from bail bond fees, and another $1,000,000 from fines
and other fees.51 Since at least 2013, all fines and fees revenue has gone to
the Judicial Expense Fund. 52

Id.; R. Doc. 251-2 at 2-3. The Judicial Expense Fund is also known as
the General Fund. R. Doc. 248 at 2.
48
R. Doc. 251-2 at 5; R. Doc. 255-5 at 9.
49
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.
50
R. Doc. 248 at 1-3.
51
Id. at 2.
52
R. Doc. 251-2 at 12.
8
47

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B.

Procedural History

Plaintiffs filed this civil rights action under 42 U.S.C. § 1983, on behalf
of themselves and all others similarly situated. There are two remaining
claims in plaintiffs’ operative second amended complaint.

Count Five

challenges the Judges’ practice of failing to inquire into ability to pay before
criminal defendants are imprisoned for nonpayment of court debts.53 Count
Five also challenges the Judges’ failure to provide a neutral tribunal to
adjudicate ability to pay.54 Count Six, an equal protection claim, asserts that
the Judges’ policy of jailing and threatening to imprison criminal defendants
for nonpayment of court debts imposes unduly harsh and punitive
restrictions on debtors whose creditor is the State, as compared to debtors
who owe money to private creditors. 55
On December 13, 2017, the Court granted plaintiffs’ motion for
summary judgment on Count Five. 56 The Court also denied both plaintiffs’
and defendants’ motion for summary judgment on Count Six.57 Plaintiffs
now move for class certification on Counts Five and Six.58

Plaintiffs’

R. Doc. 161-4 at 59.
Id. at 59-60.
55
Id. at 60.
56
R. Doc. 279.
57
Id.
58
R. Doc. 296. Plaintiffs first moved for class certification on February
10, 2017, see R. Doc. 230, but the Court stayed all motion practice—and thus
9
53

54

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proposed class includes “[a]ll persons who currently owe or who will incur
court debts arising from cases adjudicated in the Orleans Parish Criminal
District Court.”59

Additionally, defendants again move for summary

judgment on Count Six.60 The Court heard oral argument on these motions
on June 20, 2018.

II.

MOTION FOR SUMMARY JUDGMENT
A.

Legal Standard

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,
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

denied plaintiffs’ class certification motion without prejudice—pending
further order, see R. Doc. 237.
59
R. Doc. 296-1 at 9.
60
R. Doc. 295.
10

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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. A dispute about a material fact is genuine “if the evidence is such that
a reasonable [factfinder] could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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) (internal quotation marks and citation omitted). 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 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
11

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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)).
B.

Discussion

Count Six is an equal protection challenge against defendants’ debt
collection practices.

Specifically, plaintiffs challenge defendants’ use of

arrest warrants to enforce collection of court debts. Plaintiffs argue that this
enforcement mechanism constitutes invidious discrimination against
criminal defendants as compared to civil judgment debtors.61
The Fourteenth Amendment to the U.S. Constitution provides that no
state may “deny to any person within its jurisdiction the equal protection of
the laws.” U.S. Const. amend. XIV. This command “is essentially a direction

61

R. Doc. 305 at 2-3.
12

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that all persons similarly situated should be treated alike.” City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see also Harris v. Hahn,
827 F.3d 359, 365 (5th Cir. 2016) (noting that the Equal Protection Clause
“keeps governmental decision makers from treating differently persons who
are in all relevant respects alike” (quoting Nordlinger v. Hahn, 505 U.S. 1,
10 (1992))).

It is well-established that the Equal Protection Clause is

implicated “only ‘if the challenged government action classifies or
distinguishes between two or more relevant groups.’” Rolf v. City of San
Antonio, 77 F.3d 823, 828 (5th Cir. 1996) (quoting Qutb v. Strauss, 11 F.3d
488, 492 (5th Cir. 1993)); see also Cornerstone Christian Sch. v. Univ.
Interscholastic League, 563 F.3d 127, 139 (5th Cir. 2009). “State actors may
create classifications facially, when such categorization appears in the
language of legislation or regulation, or de facto, through the enforcement of
a facially neutral law in a manner so as to disparately impact a discernible
group.” Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997) (citation
omitted). Courts apply different levels of scrutiny depending on the type of
classification. City of Cleburne, 473 U.S. at 439-40.
The Supreme Court addressed the type of classification asserted by
plaintiffs—between criminal judgment debtors and civil judgment debtors—
in James v. Strange, 407 U.S. 128 (1972). The Kansas recoupment statute at
13

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issue in that case 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.

The Court recognized that

recoupment statutes serve legitimate state interests, and “that enforcement
procedures with respect to judgments need not be identical.” Id. at 138, 141.
Nonetheless, the Court held, recoupment statutes “need not blight in such
discriminatory fashion the hopes of indigents for self-sufficiency and selfrespect.”

Id. at 141-42.

The Court struck down Kansas’s statute as

“embod[ying] elements of punitiveness and discrimination which violate the
rights of citizens to equal treatment under the law.” Id. at 142; see also
Robinson v. Purkey, No. 17-1263, 2018 WL 2862772, at *45 (M.D. Tenn.
June 11, 2018) (suggesting that Tennessee statute was unconstitutional
because it permitted the state to suspend the licenses of those who owed
traffic debts, a form of coercion not applicable to other judgment debtors).
Plaintiffs do not point to any state law that facially discriminates
against criminal judgment debtors like the Kansas recoupment statute in
James. Indeed, the Judges’ practice of arrest warrants and imprisonment to
14

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collect court-imposed debts does not appear to be authorized by any state
law. Plaintiffs instead focus their challenge on the Judges’ policy of using
arrest warrants to enforce collection of court debts.62 Plaintiffs rely solely on
distinctions between (1) state and federal law protections for civil judgment
debtors and (2) OPCDC’s policy with respect to criminal defendants who owe
court debts. 63 On its face, the policy does not distinguish between civil
judgment debtors and criminal judgment debtors because the policy
operates only on the latter group. After all, OPCDC has no jurisdiction over
civil judgment debtors. See La. R.S. § 13:1336 (“The criminal district court
for the Parish of Orleans shall have exclusive jurisdiction of the trial and
punishment of all crimes, misdemeanors, and offenses committed within the
parish of Orleans if the jurisdiction is not vested by law in some other
court.”). For the same reason, there is no evidence that the Judges’ policy is
applied in a discriminatory manner, or that it has a disparate impact on
criminal judgment debtors compared to civil judgment debtors. Plaintiffs
merely argue that there must be an equal protection violation because they
are actually treated differently from how civil judgment debtors, who are not

R. Doc. 305 at 1.
Notably, Count Six does not assert an equal protection claim based on
indigence. Cf. Bearden v. Georgia, 461 U.S. 660 (1983); ODonnell v. Harris
County, 892 F.3d 147, 161-63 (5th Cir. 2018).
15
62
63

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even subject to the Judges’ policy, are supposed to be treated. Plaintiffs fail
to cite a single case on point, i.e., a case in which the defendant has no
authority over the favored class and does not act pursuant to state law, but
nonetheless violates the Equal Protection Clause in its treatment of the
disfavored class.
Differential treatment based on jurisdiction alone does not violate the
Equal Protection Clause. See Griffin v. Cty. Sch. Bd. of Prince Edward Cty.,
377 U.S. 218, 230 (1964) (“[S]howing that different persons are treated
differently is not enough, without more, to show a denial of equal
protection.”); Mills v. City of Roanoke, 518 F. Supp. 2d 815, 823 (W.D. Va.
2007) (“As long as all individuals within the jurisdictional reach of a policy
are equally affected by the policy, it does not matter that those in a different
jurisdiction are not subjected to the same policy.”). In Woodard v. Andrus,
419 F.3d 348 (5th Cir. 2005), for example, the plaintiff sued a parish clerk of
court who allegedly charged excessive or unauthorized fees. Id. at 350. The
plaintiff asserted that “she and other Calcasieu Parish litigants [were] being
treated differently from litigants in other Louisiana parishes.” Id. at 354.
The Fifth Circuit held that these facts did not support an equal protection
claim because there was no showing that the defendant, who had no
jurisdiction over residents of other parishes, was “selectively enforcing the
16

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state statute based upon any impermissible ground,” or that the defendant
“distinguish[ed] between different groups.” Id.
Here too, there is no showing that the Judges’ policy distinguishes
between criminal judgment debtors and civil judgment debtors. Like the
defendant in Woodard, the Judges lack jurisdiction over the favored class.
Thus, the state action challenged by plaintiffs—i.e., the Judges’ policy—does
not distinguish between different groups. See Woodard, 419 F.3d at 354.
That civil judgment debtors outside OPCDC’s jurisdiction and criminal
judgment debtors in OPCDC are treated differently, without more, does not
show an equal protection violation. See Griffin, 377 U.S. at 230.
Nor is there any showing that the Judges are enforcing a policy in
violation of state law with some discriminatory purpose. As noted earlier, a
state actor may create a classification “through the enforcement of a facially
neutral law in a manner so as to disparately impact a discernible group.”
Johnson, 110 F.3d at 306. But “disparate impact alone cannot suffice to state
an Equal Protection violation”; a plaintiff must also show that the challenged
state action was motivated by discriminatory purpose. Id. “Discriminatory
purpose in an equal protection context implies that the decisionmaker
selected a particular course of action at least in part because of, and not
simply in spite of, the adverse impact it would have on an identifiable group.”
17

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Id. at 307 (quoting Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995)).
Plaintiffs point to no evidence of discriminatory purpose in this case. Thus,
the disparate impact of the Judges’ policy on criminal judgment debtors in
OPCDC does not in itself show an equal protection violation.
Moreover, “an alleged violation of a state statute does not give rise to a
corresponding § 1983 violation, unless the right encompassed in the state
statute is guaranteed under the United States Constitution.”

Jones v.

Lowndes County, 678 F.3d 344, 352 (5th Cir. 2012) (quoting Moore v.
Marketplace Rest., Inc., 754 F.2d 1336, 1349 (7th Cir. 1985)). Louisiana
Code of Criminal Procedure article 24 regulates contempt proceedings in the
criminal courts. Before holding an individual in contempt, a court must issue
a rule to show cause; this rule must be served on the criminal defendant at
least 48 hours before trial on the rule; and if the court finds the defendant
guilty, it must issue “an order reciting the facts constituting the contempt.”
La. Code Crim. Proc. art. 24. Additionally, Louisiana law provides that
failure to comply with an order to pay money “shall not be construed as a
contempt” if the debtor is currently unable to pay, and was also unable to pay
when the order was issued. La. R.S. § 13:4206.
The Judges’ policy and practice of essentially holding criminal
defendants in contempt for nonpayment of court debts fails to adhere to
18

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these statutes.

To some extent, the procedural rights encompassed by

Louisiana Code of Criminal Procedure article 24 may be guaranteed by the
U.S. Constitution.

But those rights sound in due process, not equal

protection, and the Court has addressed those rights in connection with
Count Five.

The substantive right encompassed by Louisiana Revised

Statutes section 13:4206 does relate to equal protection of indigents. See
Bearden v. Georgia, 461 U.S. 660 (1983). But again, Count Six does not
assert an equal protection claim based on indigence.
Count Six, as pleaded, asserts an equal protection claim based on
differential treatment of criminal defendants in OPCDC versus civil
judgment debtors in other courts. The Judges’ policy of arresting and
imprisoning criminal defendants for nonpayment of court debts is not
discriminatory on its face because it operates only on criminal defendants in
OPCDC. Additionally, there is no evidence that the Judges adopted the
policy with any discriminatory purpose. Thus, plaintiffs fail to raise a
genuine dispute of material fact in support of their equal protection claim,
and defendants are entitled summary judgment on Count Six.

19

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III. CLASS CERTIFICATION
A.

Legal Standard

Class actions are governed by Rule 23 of the Federal Rules of Civil
Procedure. “The class certification determination rests within the sound
discretion of the trial court.” Unger v. Amedisys Inc., 401 F.3d 316, 320 (5th
Cir. 2005). A court, however, should not grant class certification unless it is
satisfied, after “rigorous analysis,” that all Rule 23 prerequisites have been
met. Id. (citing Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)).
To be certified, the class must first satisfy four threshold requirements.
A court may certify a class only if:
(1)

the class is so numerous that joinder of all members is
impracticable;

(2)

there are questions of law or fact common to the class;

(3)

the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and

(4)

the representative parties will fairly and adequately protect
the interests of the class.

Fed. R. Civ. P. 23(a). The party moving for certification bears the burden of
establishing these requirements. Unger, 401 F.3d at 320 (citing Berger v.
Compaq Computer Corp., 257 F.3d 475, 479-80 (5th Cir. 2001)).
If the prerequisites of Rule 23(a) are met, the proposed class must
additionally satisfy one of the three provisions for certification under Rule
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23(b). For certification of an injunctive or declaratory class under Rule
23(b)(2), plaintiffs must show that “the party opposing the class has acted or
refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.” Fed. R. Civ. P. 23(b)(2).
B.

Discussion

Plaintiffs seek to certify the following class: “All persons who currently
owe or who will incur court debts arising from cases adjudicated in the
Orleans Parish Criminal District Court.” 64 Defendants’ chief objection to
class certification is that the proposed class definition is overbroad.
Specifically, the class definition includes no time limits; does not distinguish
between the different types of court debts—restitution, fines, fees, and other
court debts; includes non-indigent individuals; and includes individuals who
have received or will receive an ability-to-pay inquiry.65 Defendants also
argue that monetary damages predominate over equitable relief. 66
1.

Numerosity

Rule 23(a)(1) requires that the class be so large that “joinder of all
members is impracticable.”

64
65
66

To satisfy the numerosity requirement, “a

R. Doc. 296-1 at 9.
R. Doc. 299 at 4-7.
Id. at 7-9.
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plaintiff must ordinarily demonstrate some evidence or reasonable estimate
of the number of purported class members.” Pederson v. La. State Univ.,
213 F.3d 858, 868 (5th Cir. 2000) (quoting Zeidman v. J. Ray McDermott &
Co., 651 F.2d 1030, 1038 (5th Cir. 1981)). A “mere allegation that the class is
too numerous to make joinder practicable” is insufficient. Id. (quoting
Fleming v. Travenol Labs., Inc., 707 F.2d 829, 833 (5th Cir. 1983)).
Thousands of individuals are prosecuted in OPCDC each year. 67 Most
of these individuals plead guilty, and the Judges regularly impose fines and
fees at sentencing. 68 Thus, it is apparent—and defendants do not contest—
that plaintiffs’ proposed class comprises thousands of individuals. Joinder
at such a large scale is clearly impracticable. See Mullen v. Treasure Chest
Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (noting that “the size of the
class in this case—100 to 150 members—is within the range that generally
satisfies the numerosity requirement”). Moreover, “that the class includes
unknown, unnamed future members also weighs in favor of certification.”
Pederson, 213 F.3d at 868 n.11.

Plaintiffs have therefore satisfied the

numerosity requirement.

67
68

R. Doc. 248 at 5-6.
Id. at 4.
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2.

Commonality

The second requirement of Rule 23(a) is that there be “questions of law
or fact common to the class.” Fed. R. Civ. P. 23(a)(2). In Wal-Mart Stores,
Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court explained that Rule
23(a)(2) “requires the plaintiff to demonstrate that the class members ‘have
suffered the same injury.’” Id. at 349-50 (quoting Falcon, 457 U.S. at 157)).
The class members’ “claims must depend upon a common contention.” Id.
at 350. And this common contention “must be of such a nature that it is
capable of classwide resolution—which means that determination of its truth
or falsity will resolve an issue that is central to the validity of each one of the
claims in one stroke.” Id.
The Court has now resolved all issues of fact and law pertaining to the
named plaintiffs’ claims: the Court has granted summary judgment to
plaintiffs on Count Five, and the remaining counts are dismissed.

In

granting summary judgment on Count Five, the Court held it undisputed that
the Judges have a policy or practice of failing to conduct an ability-to-pay
inquiry before plaintiffs are imprisoned for nonpayment of court debts. 69
The Court also held it undisputed that the Judges’ institutional incentives

69

R. Doc. 279 at 48-52.
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create a conflict of interest when they determine, or are supposed to
determine, plaintiffs’ ability to pay fines and fees. 70
Regarding the first aspect of Count Five, all criminal defendants who
owe court debts to OPCDC are at risk of suffering the same constitutional
injury: imprisonment for failure to pay court debts without an ability-to-pay
determination. 71 See Dukes, 564 U.S. at 349-50. Plaintiffs’ claims “depend
upon [the] common contention” that defendants’ policy or practice is
unconstitutional. Id. at 350. Furthermore, this contention is “of such a
nature that it is capable of classwide resolution”: the Court’s resolution of
this aspect of Count Five turned on the constitutionality of the policy or
practice, not on the specific facts of the named plaintiffs’ experiences. Id.
Although defendants cite differences between class members, these
differences have no bearing on the common questions of fact and law that
the Court has already decided. See Ibe v. Jones, 836 F.3d 516, 528 (5th Cir.
2016) (noting that “[d]issimilarities among class members should be
considered to determine whether a common question is truly presented,” but
that “[e]ven a single common question of law or fact can suffice to establish
commonality, so long as resolution of that question ‘will resolve an issue that

Id. at 76.
The Court discussed evidence of this ongoing risk of imprisonment in
its earlier order. See id. at 31-32.
24
70
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is central to the validity of each one of the [class member’s] claims in one
stroke’” (quoting Dukes, 564 U.S. at 350)). First, defendants assert that court
debts owed by the putative class members vary by type and time of
imposition. But the challenged policy or practice relates to the Judges’
collection, not imposition, of court debts. The Judges’ collection practices
create the same risk of injury regardless of when a criminal defendant’s court
debts were imposed or what types of court debts the individual currently
owes.72
Second, defendants point out that not all criminal defendants in
OPCDC are indigent. But a putative class member’s right to an ability-to-pay
inquiry does not depend on indigence; the procedural protections required
by the Supreme Court in Bearden apply equally to indigent and non-indigent
individuals.

461 U.S. at 672 (“We hold, therefore, that in revocation

proceedings for failure to pay a fine or restitution, a sentencing court must
inquire into the reasons for the failure to pay.”). Thus, every criminal
defendant subject to the Judges’ debt collection practices is entitled to an

Defendants also contend that fines have never been at issue in this
case. R. Doc. 299 at 6. But the numerous references to fines in plaintiffs’
complaint, the parties’ joint stipulations, and the Court’s December 13, 2017
order belie this contention. See R. Docs. 161-4, 248, 279.
25
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ability-to-pay hearing. Indeed, the point of such a hearing is to determine
indigence.
Third, defendants contend that some putative class members have
received or will receive an ability-to-pay inquiry. Any such inquiry would be
tainted by the unconstitutional conflict of interest found by the Court in its
earlier order, so long as the criminal defendant’s court debts were at least
partly owed to the Judicial Expense Fund. Moreover, defendants’ contention
lacks evidentiary support in the record. In response to an interrogatory,
defendants admit that they have no written policies related to ability-to-pay
determinations.73

Defendants state that they will generally consider the

issue if a criminal defendant raises it. 74 But this practice puts the onus on a
criminal defendant to raise the issue. Bearden requires more. As the Court
explained in its earlier order, 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

R. Doc. 251-5 at 297.
Id. The Court also notes that when this case was filed, the Collections
Department issued alias capias warrants for nonpayment of court debts. R.
Doc. 248 at 7. This process did not even involve the Judges, let alone
guarantee a constitutionally adequate ability-to-pay inquiry before
imprisoning criminal defendants for failure to pay. See id.
26
73

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to do so, then the court must consider alternative measures. Id. Providing
ad hoc ability-to-pay inquiries only if the issue is brought to a Judge’s
attention does not meet these constitutional requirements.75 Thus, there is
no evidence that any Judge conducts, or has conducted, constitutionally
adequate Bearden hearings.
In any event, defendants’ argument misses the mark. The Fifth Circuit
has recognized that not all putative class members must suffer in the same
way because of the defendants’ conduct; it is enough to show that the same
challenged conduct creates the same threat of injury. See Yates v. Collier,
868 F.3d 354 (5th Cir. 2017); see also In re Deepwater Horizon, 739 F.3d
790, 811 (5th Cir. 2014) (noting that common questions may “relate to the
injurious effects experienced by the class members, but they may also relate
to the defendant’s injurious conduct”). In Yates, the district court certified
an injunctive class of inmates challenging the conditions of their

Furthermore, based on the Court’s review of the record in this case, the
Judges’ focus in dealing with criminal defendants who were imprisoned for
nonpayment of court debts was to collect the debts, regardless of where the
money came from or the criminal defendants’ financial resources. See R.
Doc. 95-3 at 27-35 (transcript of Alana Cain’s hearing after she was
imprisoned for nonpayment of court debts); see also R. Docs. 8-2, 8-3, 8-7
(plaintiffs’ affidavits describing how the court compelled them to make
payments without inquiring into their ability to pay); R. Doc. 251-5 at 284
(July 2014 City Council hearing in which a Judge explained that the Judges
were sharing ideas “in an effort to increase [their] collection” of fines and
fees).
27
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confinement. The district court noted two common questions of law or fact:
(1) “excessive heat constitutes a condition of confinement that poses a
substantial risk of serious harm to the health of all inmates,” and (2) prison
“officials were deliberately indifferent to the risk posed to the inmates.” Id.
at 362 (emphasis added).

The defendants argued that age and health

differences among the inmates and the availability of various “heatmitigation measures” made it impossible to answer the first question on a
classwide basis. Id. at 362-63. While the district court acknowledged that
“no two individuals have the exact same risk,” it found that “heat-mitigation
measures . . . were ineffective to reduce the risk of serious harm to a
constitutionally permissible level for any inmate, including the healthy
inmates.” Id. at 363 (alterations omitted). The Fifth Circuit upheld the
district court’s findings and reasoning. Id. at 365.
Here, as in Yates, not all putative class members have suffered or will
suffer the same injury. But if the only way to possibly get an ability-to-pay
determination (albeit a constitutionally deficient one) is to ask for it, as the
defendants’ interrogatory response suggests, then all criminal defendants
who owe court debts in OPCDC are at risk of imprisonment without due
process. All putative class members face the same threat of injury because

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of the Judges’ unconstitutional policy or practice. This is enough to establish
commonality with respect to the first part of Count Five.
The second part of Count Five, challenging the Judges’ conflict of
interest, does not necessarily affect every member of the proposed class. Of
course, every putative class member is entitled to a neutral forum to
determine ability to pay. But a Judge would not be conflicted in determining
the ability to pay of an individual who owes only restitution, for example,
because restitution goes only to the victim. See La. Code Crim. Proc. art.
883.2.

The Court therefore divides plaintiffs’ proposed class into one

subclass, comprising persons whose debts are at least partly owed to the
OPCDC Judicial Expense Fund.

See Fed. R. Civ. P. 23(c)(5) (“When

appropriate, a class may be divided into subclasses that are each treated as a
class under this rule.”). All such persons’ claims depend upon the common
contention that the Judges’ conflict of interest violates due process, a
contention that is clearly capable of classwide resolution. Thus, plaintiffs
have shown commonality with respect to the second part of Count Five.
3.

Typicality

Rule 23(a)(3) requires that “claims or defenses of the representative
parties [be] typical of the claims or defenses of the class.” The requirement
depends “less on the relative strengths of the named and unnamed plaintiffs’
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cases than on the similarity of legal and remedial theories behind their
claims.” Ibe, 836 F.3d at 529 (quoting Jenkins v. Raymark Indus. Inc., 782
F.2d 468, 472 (5th Cir. 1986)). A typicality inquiry may be used to “screen
out class actions in which the legal or factual position of the representatives
is markedly different from that of other members of the class even though
common issues of law or fact are present.” 7A Wright & Miller, Federal
Practice and Procedure § 1764 (3d ed. 2018).
Count Five challenges defendants’ practice of failing to conduct an
ability-to-pay inquiry and defendants’ conflict of interest in evaluating ability
to pay—both of which are generally applicable to the putative class members.
Cf. Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993) (finding
typicality satisfied where plaintiff “framed her challenge in terms of
[defendant’s] general practice of overestimating social security benefits”).
Indeed, the named plaintiffs’ claims for declaratory relief are identical to
those of the other putative class members. Plaintiffs have therefore satisfied
the typicality requirement.
4.

Adequacy of representation

The final requirement of Rule 23(a) is that the representative parties
must “fairly and adequately protect the interests of the class.” Fed. R. Civ. P.
23(a)(4). This requirement is “essential to due process, because a final
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judgment in a class action is binding on all class members.” In re Am. Med.
Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996) (citing Hansberry v. Lee, 311
U.S. 32, 42-43 (1940)). To meet the adequacy requirement, the “class
representative[s], their counsel, and the relationship between the two [must
be] adequate to protect the interests of absent class members.” Unger, 401
F.3d at 321. The Court must consider both “the zeal and competence” of
counsel and “the willingness and ability of the representatives to take an
active role in and control the litigation.” Stirman v. Exxon Corp., 280 F.3d
554, 563 (5th Cir. 2002).
Plaintiffs’ attorneys in this case have proven to be both zealous and
competent. The declarations by Alec Karakatsanis, Jon M. Greenbaum,
David P. Fuad, and William P. Quigley highlight counsel’s extensive
experience in civil rights cases. 76 Additionally, the Court is satisfied that the
representative parties have adequately represented the interests of the class
members, and will continue to do so. All named plaintiffs have executed
affidavits detailing their personal experiences regarding defendants’ policies
and practices; Alana Cain and Ashton Brown continue to owe court debts to
OPCDC; and Cain and Brown have kept counsel apprised of defendants’

76

R. Docs. 296-3, 296-4, 296-5, 296-6.
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ongoing debt collection efforts. The class representatives and counsel are
therefore adequate.
5.

Declaratory class

Rule 23(b)(2) permits a class action to be maintained if “the party
opposing the class has acted or refused to act on grounds that apply generally
to the class, so that final injunctive relief or corresponding declaratory relief
is appropriate respecting the class as a whole.” To satisfy Rule 23(b)(2),
“class members must have been harmed in essentially the same way.”
Maldonado v. Ochsner Clinic Found., 493 F.3d 521, 524 (5th Cir. 2007). “It
is well-established that ‘[i]nstead of requiring common issues, [Rule]
23(b)(2) requires common behavior by the defendant toward the class.’”
Yates, 868 F.3d at 366 (quoting In re Rodriguez, 695 F.3d 360, 365 (5th Cir.
2012). In Dukes, the Supreme Court noted that “[t]he key to the (b)(2) class
is ‘the indivisible nature of the injunctive or declaratory remedy warranted—
the notion that the conduct is such that it can be enjoined or declared
unlawful only as to all of the class members or as to none of them.’” Dukes,
564 U.S. at 360 (quoting Richard A. Nagareda, Class Certification in the Age
of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
Plaintiffs must also show that their claims for equitable relief
predominate over any damages claims.
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Maldonado, 493 F.3d at 524.

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“[M]onetary relief predominates in [Rule 23](b)(2) class actions unless it is
incidental to requested injunctive or declaratory relief.” Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998). Incidental damages “flow
directly from liability to the class as a whole on the claims forming the basis
of the injunctive or declaratory relief.” Id. “Liability for incidental damages
should not require additional hearings to resolve the disparate merits of each
individual’s case; it should neither introduce new and substantial legal or
factual issues, nor entail complex individualized determinations.” Id.
Here, plaintiffs’ sole remaining claim seeks declaratory relief. Contrary
to defendants’ arguments, plaintiffs do not seek reimbursement for court
debts or other damages. Plaintiffs do seek attorney’s fees under 42 U.S.C.
§ 1988, 77 but such fees are incidental to plaintiffs’ request for declaratory
relief. See Yates, 868 F.3d at 359 n.1 (affirming certification of Rule 23(b)(2)
class even though plaintiffs sought attorney’s fees).
As explained earlier, the first aspect of Count Five challenges a policy
or practice that is generally applicable to the class, and all class members are
at risk of suffering the same constitutional injury. The Judges’ policy or
practice may be declared unconstitutional only as to all of the class members
or as to none of them. Dukes, 564 U.S. at 360. This general applicability

77

See R. Doc. 161-4 at 61.
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satisfies Rule 23(b)(2) even though not all members of the class will actually
be imprisoned for nonpayment of court debts. See Fed. R. Civ. P. 23 advisory
committee note to 1966 amendment (“Action or inaction is directed to a class
within the meaning of this subdivision even if it has taken effect or is
threatened only as to one or a few members of the class, provided it is based
on grounds which have general application to the class.”). The second aspect
of Count Five, challenging the Judges’ institutional conflict of interest,
involves the same conduct and the same injury for all members of the
subclass defined earlier.

This conflict of interest may be declared

unconstitutional only as to all members of the subclass or as to none of them.
Plaintiffs have therefore satisfied Rule 23(b)(2)’s requirements.

IV.

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

summary judgment on Count Six.

Count Six is DISMISSED WITH

PREJUDICE. Plaintiffs’ motion for class certification is GRANTED. The
following class is certified as to the first part of Count Five: all persons who
owe or will incur court debts arising from cases adjudicated in OPCDC. The
following subclass is also certified as to the second part of Count Five: all

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class members whose debts are at least partly owed to the OPCDC Judicial
Expense Fund.

2nd
New Orleans, Louisiana, this _____ day of August, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

35