Case 3:16-cv-00031-JJB-RLB Document 1 01/14/16 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

Darwin Yarls, Jr., Leroy Shaw, Jr., and Douglas *

Brown On Behalf of Themselves and All Others *

Similarly Situated,

*

*

Plaintiffs,

*

vs.

*

*

*

Derwyn Bunton, in his official capacity as

*

Chief District Defender for Orleans Parish,

*

Louisiana; James T. Dixon, Jr., in his official

*

capacity as Louisiana State Public Defender,

*

*

Defendants.

*

*

Civil Action No. 3:16-cv-31 Judge ______________ Magistrate ______________
Complaint – Class Action

CLASS ACTION COMPLAINT

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INTRODUCTION 1. Plaintiffs Darwin Yarls, Jr., Leroy Shaw, Jr., and Douglas Brown are each currently detained on separate felony accusations in the Orleans Parish Prison. The prosecution has not formally charged any of the Plaintiffs with a crime, either by information or indictment. 2. Plaintiffs cannot afford attorneys. They have requested and been approved for a public defender from the Orleans Parish Public Defender’s Office (“OPD”). 3. However, OPD has refused to accept Plaintiffs as clients due to budgetary shortages and excessive caseloads. OPD has instead placed Plaintiffs on a waiting list for appointed counsel. OPD’s refusal to represent Plaintiffs means that they must languish indefinitely in jail without counsel until OPD secures adequate resources to provide them with an attorney. 4. As long as OPD refuses to represent Plaintiffs, their prosecutions cannot proceed. Meanwhile, Plaintiffs have no access to an attorney for critical pretrial functions that would ordinarily be performed by defense counsel, such as conducting a preliminary examination to challenge their arrests and bail conditions; investigating the allegations; filing motions to preserve potentially exculpatory evidence; or negotiating with the prosecution. 5. The public defender’s budgetary crisis and its denial of counsel to Plaintiffs both result from the State of Louisiana’s chronic underfunding of its public defender system. While the legislature yearly appropriates funds for public defense, the public defender system overwhelmingly relies on locally generated fines and fees for revenue.
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6. Under this scheme, approximately two-thirds of the state’s budget for public defenders comes from a $45 fee assessed primarily on traffic tickets. No other state in the nation is as dependent on local fines and fees to fund indigent defense.1
7. Louisiana’s structure dictates that the funding available to a public defender is inherently unreliable. Funding is captive to arbitrary factors like how many highways pass through a district, the degree to which local law enforcement prioritizes traffic enforcement, or the extent to which the district attorney relies on pretrial diversion.
8. As a result, public defenders have continually faced funding emergencies like the one in Orleans Parish. These crises have in turn forced offices into extreme measures like refusing clients.
9. Plaintiffs bring this class action under 42 U.S.C. § 1983 on behalf of themselves and those similarly situated who have been or will be denied counsel indefinitely because OPD has refused to represent them.
10. Plaintiffs seek a declaratory judgment that OPD’s indefinite denial of counsel violates their Sixth and Fourteenth Amendment rights to counsel, as well as their Fourteenth Amendment right to due process and the equal protection of the laws.
JURISDICTION AND VENUE
11. Plaintiffs’ claims arise under the Constitution and laws of the United States. This Court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3).
12. The federal rights asserted by Plaintiffs are enforceable under 42 U.S.C. § 1983.
1 David Carroll, Indigent Defense Progress Stunted by Out-Dated Funding Mechanism in Louisiana, 6AC: Pleading the Sixth (Sept. 26, 2012), http://sixthamendment.org/indigentdefense-progress-stunted-by-out-dated-funding-mechanism-in-louisiana/.
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13. This Court has the authority to grant declaratory relief under 28 U.S.C. § 22012202 and Fed. R. Civ. P. 57.
14. Venue is proper in the Middle District of Louisiana under 28 U.S.C. § 1391(b). Defendant Dixon and the Louisiana Public Defender Board reside in this district, and all defendants are residents of Louisiana, in which the Middle District of Louisiana is located.
PARTIES
Plaintiffs
15. Plaintiff Darwin Yarls, Jr. is an adult resident of Orleans Parish in the State of Louisiana. He is currently in custody at the Orleans Parish Prison on a felony accusation for which the prosecution has not formally charged him by information or indictment.
16. Plaintiff Leroy Shaw, Jr. is an adult resident of Orleans Parish in the State of Louisiana. He is currently in custody at the Orleans Parish Prison on a felony accusation for which the prosecution has not formally charged him by information or indictment.
17. Plaintiff Douglas Brown is an adult resident of Orleans Parish in the State of Louisiana. He is currently in custody at the Orleans Parish Prison on a felony accusation for which the prosecution has not formally charged him by information or indictment.
Defendants
18. Defendant Derwyn Bunton is the Chief Public Defender for the Orleans Parish Public Defender’s Office. He is sued in his official capacity for declaratory relief. He is domiciled in the Eastern District of Louisiana.
19. Defendant James Dixon is the state public defender for the Louisiana Public Defender Board (the “Board”), the executive agency charged with administering Louisiana’s
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indigent defense system. Dixon is employed by the Board to carry out its responsibilities. Defendant Dixon’s office approved and supervises OPD’s Restriction of Services Plan. He is domiciled in the Middle District of Louisiana.
FACTS
20. Plaintiff Yarls was arrested on January 12, 2016, on an accusation of vehicular homicide. The alleged accident occurred nearly two months prior to the arrest. The victim was Mr. Yarls’ longtime girlfriend. The statutory maximum for this offense is thirty years in prison with hard labor. La. Rev. Stat. Ann. §14:32.1. Mr. Yarls is 51-years old.
21. Mr. Yarls had his initial appearance before the magistrate on January 12, 2016. 22. The magistrate found probable cause for the offense and set Mr. Yarls’ bail at $75,000. Mr. Yarls has been unemployed since the accident and lacks the means to purchase his release. 23. Plaintiff Shaw was arrested on January 12, 2016, on an accusation of armed robbery. The statutory maximum for this offense is ninety-nine years in prison with hard labor without benefit of parole, probation, or suspension of sentence. La. Rev. Stat. Ann. §14:64. Mr. Shaw is 48–years old. 24. Mr. Shaw had his initial appearance before the magistrate on January 12, 2016. 25. The magistrate found probable cause for the offense and set Mr. Shaw’s bail at $75,000. Mr. Shaw is unemployed and receives Social Security Disability. He lacks the means to purchase his release. 26. Plaintiff Brown was arrested on January 13, 2016, on an accusation of first degree robbery. The statutory maximum for this offense is forty years in prison with hard labor without
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benefit of parole, probation, or suspension of sentence. La. Rev. Stat. Ann. §14:64.1. Mr. Brown is 44–years old.
27. Mr. Brown had his initial appearance before the magistrate on January 14, 2016. 28. The magistrate found probable cause for the offense and set Mr. Brown’s bail at $25,000. Mr. Brown works at a temp service and makes approximately $1,000 a month. He lacks the means to purchase his release. 29. Counsel appointments in Orleans Parish are also conducted at the initial appearance, pursuant to Article 230 of the Louisiana Code of Criminal Procedure. If the magistrate court determines that an arrestee is unable to afford counsel, the court appoints OPD, which represents 85% of criminal defendants in the parish. 30. In accordance with this practice, the magistrate on January 12, 2016 determined that Mr. Yarls could not afford an attorney and appointed OPD. 31. In accordance with this practice, the magistrate on January 12, 2016 determined that Mr. Shaw could not afford an attorney and appointed OPD. 32. Under ordinary circumstances, OPD would accept Mr. Yarls and Mr. Shaw as clients and begin representing them immediately upon the magistrate’s order of appointment. 33. However, an OPD representative, acting on behalf of Defendant Bunton, informed the court that OPD was refusing the magistrate’s order to represent Mr. Yarls, Mr. Shaw. 34. The court, in response to OPD’s refusals, scheduled a second hearing for January 15, 2016, to again determine whether Mr. Yarls and Mr. Shaw were entitled to appointed counsel.
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35. However, prior to their January 15th hearing, Mr. Yarls and Mr. Shaw were brought before the court on January 14, 2016 for another hearing to determine counsel.
36. The court again found Mr. Yarls and Mr. Shaw indigent and appointed OPD to represent Mr. Yarls and Mr. Shaw.
37. Again, an OPD representative, acting on behalf of Defendant Bunton, informed the court that OPD was refusing the magistrate's order to represent Mr. Yarls and Mr. Shaw.
38. The magistrate accepted OPD's notice that they were refusing to represent Mr. Yarls and Mr. Shaw and set both cases for a status conference hearing on February 16, 2016.
39. Also in accordance with the standard practice in Orleans Parish, the magistrate on January 14, 2016 determined that Mr. Brown could not afford an attorney and appointed OPD.
40. Again, an OPD representative, acting on behalf of Defendant Bunton, informed the court that OPD was refusing the magistrate’s order to represent Mr. Brown.
41. The magistrate accepted OPD’s notice that they were refusing to represent Mr. Brown and set Mr. Brown’s case for a status conference hearing on February 11, 2016.
42. Because Mr. Yarls has been unemployed for two months and is currently in jail, he will remain unable to afford counsel by the time of the February 16th hearing, and for the foreseeable future.
43. Because Mr. Shaw is unemployed and is currently in jail, he will remain unable to afford counsel by the time of the February 16th hearing, and for the foreseeable future.
44. Because Mr. Brown is employed with a temp service and is currently in jail, he will remain unable to afford counsel by the time of the February 11th hearing, and for the foreseeable future.
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45. OPD refused to represent Mr. Yarls, Mr. Shaw and Mr. Brown as part of its Restriction of Services protocol (“ROS”).
46. OPD initiated the ROS on July 1, 2015 – the first day of its 2016 fiscal year – due to $1 million shortfall in locally generated ($300,000) and state ($700,000) revenue for Fiscal Year 2015. Ex. 1, Letter from Derwyn D. Bunton, Chief Dist. Def., OPD, to New Orleans Criminal Justice Stakeholders (Jun. 18, 2015).
47. Defendant Dixon officially approved the ROS on behalf of the Louisiana Public Defender Board on December 1, 2015. Ex. 2, Letter from Derwyn D. Bunton, Chief Dist. Def., OPD, to the Honorable Arthur Hunter, Jr., Orleans Par. Criminal Dist. Court, Section K (Dec. 11, 2015) at 1.
48. The ROS included a hiring freeze for current and future staff attorney vacancies. Ex. 3, Orleans Public Defenders Office, Restriction of Services Plan Fiscal Year 2016 at 3. Defendant Bunton asserted in the ROS that OPD’s inability to replace or expand staff, combined with the office’s already excessive number of active cases, would result in clients being placed on a waiting list for representation.2 Id. at 4, 5.
49. Since beginning the ROS, OPD has lost a significant number of attorneys, particularly among its most experienced staff. Ex. 2, at 1. This has caused the caseloads for

2 Orleans Parish also provides funding to OPD as a matter of parish policy. See State v.

Citizen, 898 So. 2d 325, 338 (La. 2005). Since OPD announced its ROS, Orleans Parish has

increased its allocation to OPD by $400,000. Ex. 3, at 2, n.1. This increase prevented OPD from

implementing ten days of staff furloughs in 2016, wherein OPD would not appear at

arraignments and initial appearances for any potential client. But the additional funding is not

enough to keep OPD from placing clients on a waiting list for representation. Ken Daley,

Orleans public defenders need time to find lawyers for cases, Burton says, TIMES-PICAYUNE,

(Jan.

4,

2016),

http://www.nola.com/crime/index.ssf/2016/01/public_defenders_start_declini.html.

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most staff attorneys to rise well above the standards set by the American Bar Association and the Louisiana Public Defender Board. Id. at 1-2.
50. On November 20 and 23 of 2015, Judge Hunter of the Orleans Parish Criminal District Court held a hearing on OPD’s ability to provide constitutionally adequate and ethical representation to its clients.
51. OPD staff members, including Defendant Bunton, and expert witnesses all asserted at the hearing that OPD was failing to meet its constitutional and ethical obligations to clients because too many staff attorneys had unmanageable caseloads. See generally, Ex. 4, Tr. of Ct. Proceedings Held on the 20th Day of November in 2015, Louisiana v. Wroten et. al, No. 520-385 (Louisiana Criminal District Court, Orleans Parish); Ex. 5, Tr. of Ct. Proceedings Held on the 23rd Day of November in 2015, Louisiana v. Wroten et. al, No. 520-385 (Louisiana Criminal District Court, Orleans Parish); Ex. 6,Aff. of Derwyn Bunton, Chief District Defender, Nov. 20, 2015; Ex. 7, Aff. of Lauren Anderson, Attorney, Nov. 20, 2015; Ex. 8, Aff. of Mariah Holder, Attorney, Nov. 20, 2015; Ex. 9, Aff. of Phillip Jobe, Investigator, Nov. 20, 2015; Ex. 10, Aff. of Stanislav Moroz, Attorney, Nov. 20, 2015; Ex. 11, Aff. of Thomas Frampton, Attorney, Nov. 20, 2015; and Ex. 12, Aff. of Tina Peng, Attorney, Nov. 20, 2015.
52. Following the hearing, Defendant Bunton announced on December 11, 2015, that OPD would start declining certain felony cases in mid-January of 2016. Ex. 2, at 2. The withdrawals would occur at a defendant’s first appearance before the magistrate. Id.
53. Defendant Bunton predicted that OPD’s inability to accept additional clients would continue either until its caseloads reduced or it received additional funding to hire more attorneys. Id.
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54. Due to Defendant Bunton and OPD’s refusal to represent them, Plaintiffs are suffering and will continue to suffer irreparable harm. Most critically, they face an unduly heightened risk of prolonged and unnecessary pretrial detention. See Ex. 3, at 5.
55. Plaintiffs have no advocates to advise them on whether to request a preliminary examination under Louisiana law, wherein they could challenge probable cause for their arrests or argue to lower their bail conditions. See Ex. 6, at ¶5.
56. Defendant Bunton’s denial of counsel also prevents Plaintiffs from investigating the charges and preparing a defense, filing motions to preserve potentially exculpatory evidence or other discovery, conducting additional bail advocacy, or negotiating with the prosecution. See id.
57. These critical pretrial functions are all services available to defendants that OPD has accepted as clients, to those being prosecuted in public defender districts with adequate funding, or to those who can afford private counsel.
Louisiana’s Funding Scheme for Public Defense
58. Plaintiffs’ placement on a waiting list for appointed counsel results from the State of Louisiana’s chronic underfunding of its public defender system.
59. The Louisiana Constitution obligates the legislature to provide a uniform system of securing competent representation for indigent defendants. LA. CONST. art. I, § 13.
60. In 2007, the legislature established the Louisiana Public Defender Fund (the “Fund”), administered by the Louisiana Public Defender Board, to meet this mandate. The Fund is primarily appropriated by the legislature, but lacks a guaranteed funding stream or source of revenue.
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61. According to Defendant Dixon, the legislature has never provided the Board with adequate funding to operate the state’s public defender system. Ex. 13, La. Pub. Def. Bd., 2014 Annual Board Report at 22.
62. The legislature also established in each of the state’s forty-two judicial districts a Judicial District Indigent Defender Fund, which is administered by the district public defender.
63. The Fund consists of locally generated fines and fees, the most substantial of which is a $45 fee assessed in cases when a defendant is convicted after trial, a plea of guilty or nolo contendere, or when a defendant forfeits a bond.
64. In practice, most of the revenue generated by this fee comes from traffic tickets. The fees collected from traffic tickets constitute nearly two-thirds of the funds available for public defense in Louisiana. Id.
65. The amount of money a district defender collects from traffic tickets varies widely from fiscal year to fiscal year, and from district to district. Factors such as the number of highways passing through a district and law enforcement’s traffic enforcement priorities contribute greatly to this variance, independent of the actual demand for public defenders in a particular district.
66. Defendant Dixon and Defendant Bunton have admitted that Louisiana’s dependence on locally generated revenue is inherently unreliable and inadequate. Ex. 2, at 3; Ex. 13, at 22.
67. Since 2010, twenty-nine of the state’s forty-two public defenders have received emergency funding to avoid financial failure. Ex. 13, at 22. But districts such as the twentyninth (St. Charles Parish), through which multiple state highways pass, typically enjoy budget
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surpluses. Four other defender districts anticipate similar surpluses for Fiscal Year 2016. Id. at 23.
68. Louisiana’s dysfunctional funding scheme has forced at least fifteen of its fortytwo defender districts to announce severe service restrictions in the past year.3 The affected districts are spread throughout the state, and include both rural and urban parishes.
69. As with OPD, all of the plans include protocols for establishing waiting lists, either because a district can no longer accept certain cases involving conflicts of interest among co-defendants, or to mitigate caseloads that vastly exceed ethical guidelines.
70. Defendant Dixon has predicted a collapse of the public defender system around the end of Fiscal Year 2016, when the Board expects nearly three-quarters – thirty-one of the forty-two – of defender districts to be at or near insolvency. Ex. 13, at 23.
CLASS ALLEGATIONS
71. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs bring this suit on behalf of themselves and all others similarly situated who are or will be affected by Defendants’ unconstitutional policy of refusing to represent poor people accused of crimes.
72. Plaintiffs seek to represent a class defined as Orleans Parish arrestees with a right to appointed counsel who have been or will be denied counsel indefinitely due to their placement on a waiting list for representation by OPD.
73. Plaintiffs seek to represent a class of individuals to obtain declaratory relief establishing that their placement on OPD’s waiting list for appointed counsel violates their constitutional rights to counsel and to equal protection.
3 The ROS plans for each of these districts are on file with Plaintiffs’ counsel. 12

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74. At the time of this filing, OPD has refused to represent at least 7 clients. It is unknown how many clients OPD will ultimately place on its waiting list for representation, and the number of clients on the waiting list will grow and fluctuate daily.
75. The class is so numerous that joinder of all members is impracticable, and, because the class includes future members, its size will grow over time if Defendants’ unconstitutional practices persist.
76. There are questions of law and fact common to the class. 77. Common questions of fact include: the budgetary circumstances that led OPD to begin placing individuals on a waiting list for services; the protocols OPD uses when it refuses appointment; the procedures, if any, used by OPD, judges, and prosecutors to monitor cases on the waiting list; the typical amount of time individuals must remain on the waiting list; and the amount of funding available at the state and local levels to provide counsel for individuals on the waiting list. 78. Common questions of law include whether the placement of putative class members on a waiting list for appointed counsel violates their Sixth Amendment right to counsel and/or their Fourteenth Amendment right to the equal protection of the laws. 79. Plaintiffs’ claims or defenses are typical of the claims or defenses of the proposed class. The constitutional deprivations Plaintiffs have suffered and continue to suffer are the same as those of putative class members. 80. Plaintiffs and their attorneys will fairly and adequately protect the interests of the class. Plaintiffs have no interests antagonistic to the proposed class, and they are represented by attorneys with significant expertise in criminal procedure and complex civil litigation.
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81. Plaintiffs seek a declaratory judgment that theirs and others’ denial of counsel by OPD violates their constitutional rights. Defendants’ actions and omissions in violation of the federal constitution apply generally to the class as a whole; thus, final declaratory relief is appropriate for the proposed class pursuant to Rule 23(b)(2).
CLASS AND INDIVIDUAL CLAIMS FOR RELIEF
Count 1: Sixth and Fourteenth Amendment Right to Counsel 82. Because Plaintiffs and class members are too poor to afford private counsel, Defendant Bunton’s placement of individuals on a waiting list for representation violates Plaintiffs and class members’ Sixth and Fourteenth Amendment right to the assistance of counsel.
Count 2: Fourteenth Amendment Right to Due Process and Equal Protection Relative to Individuals Not Placed on OPD’s Waitlist
83. Plaintiffs and class members have a fundamental right to the assistance of appointed counsel because they cannot afford private counsel.
84. Defendant Bunton’s placement of Plaintiffs and class members on a waiting list for representation creates two classes of similarly situated individuals with a fundamental right to appointed counsel: eligible criminal defendants who are appointed counsel and eligible criminal defendants denied counsel by their placement on a waiting list.
85. Defendant Bunton’s placement of Plaintiffs and class members on a waiting list for representation while Defendant Bunton provides counsel to other individuals in Orleans Parish violates Plaintiffs and class members’ Fourteenth Amendment right to due process and equal protection.
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Count 3: Fourteenth Amendment Right to Due Process and Equal Protection Relative to Criminal Defendants Able to Afford Private Counsel.
86. Plaintiffs and class members have a fundamental right to the assistance of appointed counsel because they cannot afford private counsel.
87. Defendant Bunton’s placement of Plaintiffs and class members on a waiting list for appointed counsel has created dual criminal justice systems based on wealth in Orleans Parish. Criminal defendants in Orleans Parish who can afford private counsel have unfettered access to the assistance of counsel for preliminary examinations and other critical defense functions.
88. But Plaintiffs and class members cannot access these protections until Defendants secure adequate resources to appoint counsel and remove Plaintiffs and class members from the waiting list.
89. Defendant Bunton’s placement of Plaintiffs and class members on the waiting list invidiously discriminates against class members based on wealth, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
RELIEF REQUESTED
WHEREFORE, Plaintiffs request that this Court: a. Certify this case as a class action. b. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s
placement of individuals on a waiting list for public defender services violates Plaintiffs and class members’ Sixth and Fourteenth Amendment right to the assistance of counsel. c. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s placement of Plaintiffs and class members on a waiting list for services while Defendant
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Bunton provides counsel to other similarly situated individuals violates Plaintiffs and class members’ Fourteenth Amendment rights to due process and equal protection. d. Enter declaratory relief in the form of a judgment establishing that Defendant Bunton’s denial of counsel to Plaintiffs and class members on the waiting list invidiously discriminates against class members based on wealth, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. e. Award costs and attorney’s fees pursuant to 42 U.S.C. § 1988. f. Grant or award any other relief this Court deems just and proper.
Submitted the 14th day of January, 2016. Respectfully submitted, /s/ Brandon J. Buskey*, AL ASB2753-A50B (Lead Attorney) Ezekiel Edwards*, NY 4189304 American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th Floor New York, NY 10004 212-284-7364 bbuskey@aclu.org eedwards@aclu.org * Admission Pending /s/ Candice C. Sirmon, La No. 30728 (Notice Attorney) ACLU Foundation of Louisiana P.O. Box 56157 New Orleans, La 70156 (504) 522-0628 Facsimile: (888) 534-2995 Email: csirmon@laaclu.org
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William P. Quigley #07669 Loyola University New Orleans College of Law 7214 St. Charles Avenue New Orleans, LA 70118 Cell 504.710.3074 quigley77@gmail.com Anna Lellelid-Douffet La Bar No. 35204 PO Box 19388 New Orleans, LA 70179 (504) 224-9670 (c) lellelid.law@gmail.com Emily Faye Ratner #35289 316 S. Dorgenois St. New Orleans, LA 70119 (504) 822-4455 Phone (504) 822-4458 Fax msemilyfaye@gmail.com
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 Case 3:16-cv-00031-JJB-RLB Document 43 08/17/16 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

Darwin Yarls, Jr., Leroy Shaw, Jr., and Douglas *

R. Brown On Behalf of Themselves and All Others *

Similarly Situated,

*

*

Plaintiffs,

*

vs.

*

*

*

Derwyn Bunton, in his official capacity as

*

Chief District Defender for Orleans Parish,

*

Louisiana; James T. Dixon, Jr., in his official

*

capacity as Louisiana State Public Defender,

*

*

Defendants.

*

*

Civil Action No. 3:16-cv-31-JJB-RLB
JUDGE: James J. Brady
MAGISTRATE JUDGE: Richard L. Bourgeois, Jr.
Complaint – Class Action

SECOND AMENDED CLASS ACTION COMPLAINT1

1 Plaintiffs file this Second Amended Class Action Complaint pursuant to the Court’s July 14, 2016 Order. (ECF No. 34.)
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INTRODUCTION

1.

Plaintiffs Darwin Yarls, Jr., Leroy Shaw, Jr., and Douglas R. Brown are each

currently detained on separate felony accusations in Orleans Parish. The prosecution has not

formally charged any of the Plaintiffs with a crime, either by information orindictment.

2.

Plaintiffs cannot afford attorneys. They have requested and been approved for a

public defender from the Orleans Public Defender’s Office (“OPD”).

3.

However, OPD has refused to accept Plaintiffs as clients due to budgetary

shortages and excessive caseloads. OPD has instead placed Plaintiffs on a waiting list for

appointed counsel. OPD’s refusal to represent Plaintiffs means they must languish indefinitely

in jail without counsel until adequate resources are identified to provide them with an attorney.

4.

As long as Plaintiffs remain without counsel, their prosecutions cannot proceed.

Meanwhile, Plaintiffs have no access to an attorney for critical pretrial functions that would

ordinarily be performed by defense counsel, such as conducting a preliminary examination to

challenge their arrests and bail conditions; investigating the allegations; filing motions to

preserve potentially exculpatory evidence; or negotiating with the prosecution.

5.

The public defender’s budgetary crisis and its denial of counsel to Plaintiffs both

result from the State of Louisiana’s chronic underfunding of its public defender system. While

the legislature yearly appropriates funds for public defense, the public defender system

overwhelmingly relies on locally generated fines and fees for revenue.

6.

Under this scheme, approximately two-thirds of the state’s budget for public

defenders comes from a $45 fee assessed primarily on traffic tickets. No other state in the nation

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is as dependent on local fines and fees to fund indigent defense.2

7.

Louisiana’s structure dictates that the funding available to a public defender

is inherently unreliable. Funding is captive to arbitrary factors like how many highways pass

through a district, the degree to which local law enforcement prioritizes traffic enforcement, or

the extent to which the district attorney relies on pretrial diversion.

8.

As a result, public defenders have continually faced funding emergencies like

the one in Orleans Parish. Indeed, this crisis extends well beyond Orleans Parish. There are

currently thousands of individuals languishing without appointed counsel throughout the state of

Louisiana, all because of Louisiana’s dysfunctional funding scheme.

9.

Plaintiffs bring this class action under 42 U.S.C. § 1983 on behalf of

themselves and those similarly situated who have been or will be denied competent,

conflict-free counsel indefinitely in Orleans Parish and throughout the state of Louisiana.

10. Defendants have admitted that their inability to provide effective representation to Plaintiffs and those similarly-situated is unconstitutional.3 Plaintiffs therefore seek a

declaratory judgment on behalf of class members that indefinitely being denied effective

representation violates their Sixth and Fourteenth Amendment right to counsel, as well as

their Fourteenth Amendment right to due process and the equal protection of the laws. Plaintiffs

separately seek injunctive relief on behalf of class members to remedy these admitted

constitutional violations.

2 David Carroll, Indigent Defense Progress Stunted by Out-Dated Funding Mechanism in Louisiana, 6AC: Pleading the Sixth, Sept. 26, 2012, http://sixthamendment.org/indigent-defenseprogress-stunted-by-out-dated-funding-mechanism-in-louisiana/.
3 See Parties’ Joint Mot. for Final Declaratory and Partial Injunctive Relief, ECF. No. 29.
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JURISDICTION AND VENUE 11. Plaintiffs’ claims arise under the Constitution and laws of the United States. This Court has jurisdiction over these claims pursuant to 28 U.S.C. §§ 1331, 1343(a)(3). 12. The federal rights asserted by Plaintiffs are enforceable under 42 U.S.C. § 1983. 13. This Court has the authority to grant declaratory relief under 28 U.S.C. § 2201-2202 and Fed. R. Civ. P. 57. 14. Venue is proper in the Middle District of Louisiana under 28 U.S.C. § 1391(b). The Louisiana Public Defender Board resides in this district, and all defendants are residents of Louisiana, in which the Middle District of Louisiana is located.
PARTIES Plaintiffs
15. Plaintiff Darwin Yarls, Jr. is an adult resident of Orleans Parish in the State of Louisiana.
16. Plaintiff Leroy Shaw, Jr. is an adult resident of Orleans Parish in the State of Louisiana.
17. Plaintiff Douglas R . Brown is an adult resident of Orleans Parish in the State of Louisiana.
Defendants 18. Defendant Derwyn Bunton is the Chief Public Defender for the Orleans
Parish Public Defender’s Office. He is sued in his official capacity for equitable relief. 19. Defendant James Dixon is the state public defender for the Louisiana Public
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Defender Board (the “Board”), the executive agency charged with administering Louisiana’s indigent defense system. Dixon is employed by the Board to carry out its responsibilities. Defendant Dixon’s office approved and supervises OPD’s Restriction of Services Plan (“ROS”). He is sued in his official capacity for equitable relief.
FACTS 20. Plaintiff Yarls was arrested on January 12, 2016, on an accusation of vehicular homicide. The alleged accident occurred nearly two months prior to the arrest. The victim was Mr. Yarls’ longtime girlfriend. The statutory maximum for this offense is thirty years in prison with hard labor. La. Rev. Stat. Ann. §14:32.1. Mr. Yarls is 52-years old. 21. Mr. Yarls had his initial appearance before the magistrate on January 12, 2016. 22. The magistrate found probable cause for the offense and set Mr. Yarls’ bail at $75,000. Mr. Yarls has been unemployed since the accident and lacks the means to purchase his release. 23. Plaintiff Shaw was arrested on January 12, 2016, on an accusation of armed robbery. The statutory maximum for this offense is ninety-nine years in prison with hard labor without benefit of parole, probation, or suspension of sentence. La. Rev. Stat. Ann. §14:64. Mr. Shaw is 49-years old. 24. Mr. Shaw had his initial appearance before the magistrate on January 12, 2016. 25. The magistrate found probable cause for the offense and set Mr. Shaw’s bail at $75,000. Mr. Shaw is unemployed and receives Social Security Disability. He lacks the means to purchase his release. 26. Plaintiff Brown was arrested on January 13, 2016, on an accusation of first degree robbery. The statutory maximum for this offense is forty years in prison with hard labor
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without benefit of parole, probation, or suspension of sentence. La. Rev. Stat. Ann. §14:64.1. Mr. Brown is 45-years old.
27. Mr. Brown had his initial appearance before the magistrate on January 14, 2016. 28. The magistrate found probable cause for the offense and set Mr. Brown’s bail at $25,000. Mr. Brown works at a temp service and makes approximately $1,000 a month. He lacks the means to purchase his release. 29. Counsel appointments in Orleans Parish are conducted at the initial appearance, pursuant to Article 230 of the Louisiana Code of Criminal Procedure. If the magistrate court determines that an arrestee is unable to afford counsel, the court appoints OPD, which represents approximately 85% of criminal defendants in the parish. 30. In accordance with this practice, the magistrate on January 12, 2016 determined separately that Mr. Yarls and Mr. Shaw could not afford attorneys and appointed OPD. 31. Under ordinary circumstances, OPD would accept Mr. Yarls and Mr. Shaw as clients and begin representing them immediately upon the magistrate’s order of appointment. 32. However, an OPD representative, acting on behalf of Defendant Bunton, notified the court that OPD could not accept appointment for Mr. Yarls or Mr. Shaw. 33. The court, in response to OPD’s refusals, scheduled a second hearing for January 15, 2016, to again determine whether Mr. Yarls and Mr. Shaw were entitled to appointed counsel. 34. However, prior to their January 15 hearing, Mr. Yarls and Mr. Shaw were brought before the court on January 14, 2016 for another hearing to determine counsel. 35. The court again found Mr. Yarls and Mr. Shaw indigent and appointed OPD to represent Mr. Yarls and Mr. Shaw.
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36. Again, an OPD representative, acting on behalf of Defendant Bunton, notified
the court that OPD could not represent Mr. Yarls and Mr. Shaw.
37. The magistrate accepted OPD's notice that they could not represent Mr. Yarls4 and Mr. Shaw.5
38. Also in accordance with the standard practice in Orleans Parish, the magistrate
on January 14, 2016 determined that Mr. Brown could not afford an attorney and appointed OPD.
39. Again, an OPD representative, acting on behalf of Defendant Bunton,
informed the court that OPD could not represent Mr. Brown. 40. The magistrate accepted OPD’s notice that they could not represent Mr. Brown.6
41. OPD initially refused to represent Plaintiffs as part of its ROS protocol.
42. OPD initiated the ROS on July 1, 2015 – the first day of its 2016 fiscal year –
due to a $1 million shortfall in locally generated ($300,000) and state ($700,000) revenue for
Fiscal Year 2015. Ex. 1, Letter from Derwyn D. Bunton, Chief Dist. Def., OPD, to New
Orleans Criminal Justice Stakeholders (Jun. 18, 2015).
43. Defendant Dixon officially approved the ROS on behalf of the Louisiana Public
Defender Board on December 1, 2015. Ex. 2, Letter from Derwyn D. Bunton, Chief Dist. Def., 4After Plaintiffs filed the Complaint, the district court appointed OPD to represent
Plaintiff Yarls on March 16, 2016. OPD filed a notice to decline the appointment, which the court denied. OPD then filed a motion to decline Mr. Yarls’ appointment on March 26, 2016. The district court denied OPD’s motion to decline and appointed OPD on April 13, 2016.
5After Plaintiffs filed the Complaint, the district court appointed OPD to represent Plaintiff Shaw on March 31, 2016. His charges were nolle prossed on July 28, 2016 by nolle prosequi, and he was released from custody.
6After Plaintiffs filed the Complaint, the district court appointed private counsel to represent Plaintiff Brown on April 6, 2016. However, his appointed counsel filed a motion with the state court on June 23, 2016 to request adequate funds for the defense, and, if sufficient funds are not available, to stay the prosecution until funding becomes available. The motion has yet to be heard. The district court handling Mr. Brown’s case previously concluded that funds generally are not available for pro bono representation in Orleans Parish. State v. Bernard, No. 528-021 K (La. Crim. Dist. Ct., Orleans Parish April 8, 2016).
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OPD, to the Honorable Arthur Hunter, Jr., Orleans Par. Criminal Dist. Court, Section K (Dec. 11, 2015) at 1.
44. The ROS included a hiring freeze for current and future staff attorney vacancies. Ex. 3, Orleans Public Defenders Office, Restriction of Services Plan Fiscal Year 2016 at 3. Defendant Bunton asserted in the ROS that OPD’s inability to replace or expand staff, combined with the office’s already excessive number of active cases, would result in clients being placed on a waiting list for representation.7 Id. at 4, 5.
45. Since beginning the ROS, OPD has lost a significant number of attorneys, particularly among its most experienced staff. Ex. 2, at 1. This has caused the caseloads for most staff attorneys to rise well above the standards set by the American Bar Association and the Louisiana Public Defender Board. Id. at 1-2.
46. On November 20 and 23 of 2015, Judge Hunter of the Orleans Parish Criminal District Court held a hearing on OPD’s ability to provide constitutionally-adequate and ethical representation to its clients.
47. OPD staff members, including Defendant Bunton, and expert witnesses all asserted at the hearing that OPD was failing to meet its constitutional and ethical obligations to clients because too many staff attorneys had unmanageable caseloads. See generally, Ex. 4, Tr. of Ct. Proceedings Held on the 20th Day of November in 2015, Louisiana v. Wroten et. al, No.
7 Orleans Parish also provides funding to OPD as a matter of parish policy. See State v. Citizen, 898 So. 2d 325, 338 (La. 2005). Since OPD announced its ROS, Orleans Parish has increased its allocation to OPD by $400,000. Ex. 3, at 2, n.1. This increase prevented OPD from implementing ten days of staff furloughs in 2016, wherein OPD would not appear at arraignments and initial appearances for any potential client. But the additional funding is not enough to keep OPD from placing clients on a waiting list for representation. See Ken Daley, Orleans public defenders need time to find lawyers for cases, Bunton says, TIMES-PICAYUNE, Jan. 4, 2016, http://www.nola.com/crime/index.ssf/2016/01/public_defenders_start_declini.html.
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520-385 (La. Crim. Dist. Ct., Orleans Parish); Ex. 5, Tr. of Ct. Proceedings Held on the 23rd Day of November in 2015, Louisiana v. Wroten et. al, No. 520-385 (La. Crim. Dist. Ct., Orleans Parish); Ex. 6, Aff. of Derwyn Bunton, Chief District Defender, Nov. 20, 2015; Ex. 7, Aff. of Lauren Anderson, Attorney, Nov. 20, 2015; Ex. 8, Aff. of Mariah Holder, Attorney, Nov. 20, 2015; Ex. 9, Aff. of Phillip Jobe, Investigator, Nov. 20, 2015; Ex. 10, Aff. of Stanislav Moroz, Attorney, Nov. 20, 2015; Ex. 11, Aff. of Thomas Frampton, Attorney, Nov. 20, 2015; and Ex. 12, Aff. of Tina Peng, Attorney, Nov. 20, 2015.
48. Following the hearing, Defendant Bunton announced on December 11, 2015, that OPD would start declining serious felony cases in mid-January of 2016. Ex. 2, at 2. The withdrawals would occur at a defendant’s first appearance before the magistrate. Id.
49. Defendant Bunton predicted that OPD’s inability to accept additional clients would continue either until its caseloads reduced or it received additional funding to hire more attorneys. Id.
50. Due to Defendant Bunton and OPD’s inability to represent them, Plaintiffs are suffering and will continue to suffer irreparable harm. Most critically, they face an unduly heightened risk of prolonged and unnecessary pretrial detention. See Ex. 3, at 5.
51. Plaintiffs have no advocates to advise them on whether to request a preliminary examination under Louisiana law, wherein they could challenge probable cause for their arrests or argue to lower their bail conditions. See Ex. 6, ¶5.
52. Plaintiffs are also without an attorney to investigate the charges and prepare a defense, file motions to preserve potentially exculpatory evidence or other discovery, conduct additional bail advocacy, or negotiate with the prosecution. See id.
53. These critical pretrial functions are all services available to defendants who can
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afford private counsel.
Louisiana’s Funding Scheme for Public Defense 54. Plaintiffs’ placement on a waiting list for appointed counsel results from the
State of Louisiana’s chronic underfunding of its public defender system. 55. The Louisiana Constitution obligates the legislature to provide a uniform system
of competent representation for indigent defendants. LA. CONST. art. I, § 13. 56. In 2007, the legislature established the Louisiana Public Defender Fund (the
“Fund”), administered by the Louisiana Public Defender Board, to meet this mandate. The Fund is primarily appropriated by the legislature, but lacks a guaranteed funding stream or source of revenue.
57. According to Defendant Dixon, the legislature has never provided the Board with adequate funding to operate the state’s public defender system. Ex. 13, La. Pub. Def. Bd., 2014 Annual Board Report at 22.
58. The legislature also established in each of the state’s forty-two judicial districts a Judicial District Indigent Defender Fund, which is administered by the district public defender.
59. The Fund consists of locally generated fines and fees, the most significant of which is a $45 fee assessed in cases when a defendant is convicted after trial, a plea of guilty or nolo contendere, or when a defendant forfeits a bond.
60. In practice, most of the revenue generated by this fee comes from traffic tickets. The fees collected from traffic tickets constitute nearly two-thirds of the funds available for public defense in Louisiana. Id.
61. The amount of money a district defender collects from traffic tickets varies widely from fiscal year to fiscal year, and from district to district. Factors such as the
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number of highways passing through a district and law enforcement’s traffic enforcement priorities contribute greatly to this variance, independent of the actual demand for public defenders in a particular district.
62. Defendant Dixon and Defendant Bunton have admitted that Louisiana’s dependence on locally generated revenue is inherently unreliable and inadequate. Ex. 2, at 3; Ex. 13, at 22.
63. Since 2010, twenty-nine of the state’s forty-two public defenders have received emergency funding to avoid financial failure. Ex. 13, at 22. But districts such as the twenty-ninth (St. Charles Parish), through which multiple state highways pass, typically enjoy budget surpluses. Four other defender districts anticipate similar surpluses for Fiscal Year 2016. Id. at 23.
64. Louisiana’s dysfunctional funding scheme has forced at least thirty of its fortytwo defender districts to announce severe service restrictions in the past year.8 The affected districts are spread throughout the state, and include both rural and urban parishes.
65. As with OPD, many of the plans include protocols for establishing waiting lists, either because a district can no longer accept certain cases involving conflicts of interest among co-defendants, or to mitigate caseloads that vastly exceed ethical guidelines.
66. According to the most recently reported data from the Louisiana Public Defender Board, there are over 6,000 individuals currently without appointed counsel in sixteen of the state’s forty-two judicial districts.9 For instance, the 15th Judicial District, which includes
8 Copies of the ROS plans for each of these districts are on file with Plaintiffs’ counsel. 9 June 14, 2016 Agenda and Supporting Documents, Louisiana Public Defender Board Meeting at 244, available at http://lpdb.la.gov/Meetings/txtfiles/pdf/Board_Meeting/Z_Board_Jun%2014%202016_Agenda% 20and%20Supporting%20Documents.pdf.
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Lafayette, Acadia, and Vermillion parishes, has placed 5,297 individuals on its waiting list.10
The 16th Judicial District’s (St. Martin, St. Mary, Iberia parishes) waiting list has 250 individuals,11 and the 19th Judicial District (East Baton Rouge) has 196.12 Each of the districts
relying on waiting lists suffers from the same fundamental defect: an insufficient amount of
resources from the state to provide constitutionally-compliant defense counsel for those who
cannot afford it.
67. On June 14, 2016, the Louisiana Public Defender Board altered its funding
allocation to increase the proportion of available Fiscal Year 2017 funds that will go to district defenders approximately 50% to 65%.13 This increase was accomplished largely by reducing the funding allocation for capital defense by 33.3%.14 The Louisiana legislature has since codified
this funding allocation. La. Rev. Stat. Ann. §15:167.
68. The new legislation does not increase the total amount of funds provided to the
Board, nor does it address the system’s overreliance on unpredictable traffic fees. Defendants
have publicly declared that the new funding allocation does not remedy Louisiana’s inherently
unstable and inadequate funding scheme, and Defendant Dixon has warned that it may also cause funding shortages and delays in capital cases.15
10 Id. 11 Id. 12 Id. 13 Id. at 234. 14 Id. 15 See, e.g., Julia O’Donoghue, Lawmakers look to shift money to public defenders – from death penalty appeals, Times-Picayune, Apr. 7, 2016, http://www.nola.com/politics/index.ssf/2016/04/lawmakers_look_to_give_more_mo.html; Jeff Adelson, Orleans public defender says office’s funding still precarious despite more state money, New Orleans Advocate, July 27, 2016, http://www.theadvocate.com/new_orleans/news/article_e095d542-5449-11e6-a3d16ff52f5f8151.html.
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CLASS ALLEGATIONS
69. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiffs bring this suit on behalf of themselves and all others similarly situated who are or will be affected by Defendants’ inability to provide constitutionally-compliant representation to poor people accused of crimes.
70. Plaintiffs seek to represent a class defined as Louisiana arrestees with a right to appointed counsel who have been or will be denied competent, conflict-free counsel indefinitely due to Defendant Dixon’s inability to allocate sufficient funding for their representation.
71. Plaintiffs seek to represent a subclass defined as Orleans Parish arrestees with a right to appointed counsel who have been or will be denied competent, conflict-free counsel indefinitely due to Defendants inability to allocate sufficient funding for their representation.
72. A class action is appropriate in order to obtain declaratory relief establishing that Defendants’ placement of Plaintiffs and those similarly-situated on waiting lists for appointed counsel, or their failure to otherwise provide adequate resources for the representation of criminal defendants, violates class members’ rights to counsel and to equal protection.
73. A class action is also appropriate in order to obtain injunctive relief ensuring that public defender districts throughout the state of Louisiana have the resources necessary to remove individuals from their waiting lists, and to provide constitutionally-effective representation for all arrestees.
74. As alleged above, there are over 6,000 individuals currently without appointed counsel in sixteen of the state’s forty-two judicial districts.16 OPD has declined to represent
16 June 14, 2016 Agenda and Supporting Documents, Louisiana Public Defender Board Meeting at 244, available at
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o v e r 150 individuals. It is unknown how many clients district defenders will ultimately place on waiting lists for representation, and the number of clients on the waiting lists have fluctuated and will continue to do so.
75. The class and subclass are so numerous that joinder of all respective members is impracticable, and, because the classes include future members, their size will fluctuate over time if Defendants’ unconstitutional failures persist.
76. Joinder is also impracticable because the Defendant Dixon and Board have no way to determine the identity and exact number of unrepresented people in Louisiana at any given time. Counsel for Defendant Dixon has indicated to counsel for Plaintiffs that the Board’s estimate of unrepresented individuals does not accurately represent the number of individuals actually on waiting lists. Further, the Louisiana Public Defender Board has provided to counsel for Plaintiffs, pursuant to ongoing public record requests, data collected from district defenders concerning the number of people those defenders are unable to represent. However, counsel for Defendant Dixon has indicated to counsel for Plaintiffs that this data is also inaccurate, only sporadically includes the identity of unrepresented individuals, and is sometimes inconsistent with other public reports.
77. There are questions of law and fact common to the classes. 78. Common questions of fact include: the budgetary circumstances that led OPD and defender districts across the state to begin placing individuals on waiting lists for representation; the protocols OPD and other district defenders use to refuse appointments; the procedures, if any, used by OPD and other district defenders, judges, and prosecutors to
http://lpdb.la.gov/Meetings/txtfiles/pdf/Board_Meeting/Z_Board_Jun%2014%202016_Agenda% 20and%20Supporting%20Documents.pdf
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monitor cases on the waiting list; the typical amount of time individuals must remain on the waiting lists in the defender districts; the circumstances under which individuals are removed from the waiting lists in the defender districts, including the workloads and resources available to attorneys assigned to waitlisted cases; and the amount of funding available and necessary to provide effective representation for all class members.
79. Common questions of law include whether the placement of putative class members on a waiting list for appointed counsel violates their Sixth Amendment right to counsel and/or their Fourteenth Amendment right to the equal protection of the laws.
80. Plaintiffs’ claims or defenses are typical of the claims or defenses of the proposed class and subclass. The constitutional deprivations Plaintiffs have suffered and continue to suffer are the same as those of putative class members.
81. Plaintiffs and their attorneys will fairly and adequately protect the interests of the classes. Plaintiffs have no interests antagonistic to the proposed class, and they are represented by attorneys with significant expertise in criminal procedure and complex civil litigation.
82. Plaintiffs seek a declaratory judgment that theirs and others’ denial of counsel violates their constitutional rights, and injunctive relief to remedy these constitutional violations. Defendants’ actions and omissions in violation of the federal constitution apply generally to the class as a whole; thus, final declaratory relief is appropriate for the proposed class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure.
CLASS AND INDIVIDUAL CLAIMS FOR RELIEF
Count 1: Sixth and Fourteenth Amendment Right to Counsel 83. Because Plaintiffs and class members are too poor to afford private counsel,
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Defendants’ inability to provide competent, conflict-free representation violates Plaintiffs’ and class members’ Sixth and Fourteenth Amendment right to the assistance of counsel.
Count 2: Fourteenth Amendment Right to Due Process and Equal Protection Relative to Criminal Defendants Able to Afford Private Counsel.
84. Plaintiffs and class members have a fundamental right to the assistance of appointed counsel because they cannot afford private counsel.
85. Defendants’ inability to provide representation for Plaintiffs and class members has created dual criminal justice systems based on wealth. Criminal defendants who can afford private counsel have unfettered access to the assistance of counsel for preliminary examinations and other critical defense functions. But Plaintiffs and class members cannot access these protections until adequate resources are identified to appoint competent, conflictfree counsel.
86. Defendants’ inability to provide competent, conflict-free representation for Plaintiffs and class members invidiously discriminates against class members based on wealth, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
RELIEF REQUESTED
WHEREFORE, Plaintiffs request that this Court: a. Certify this case as a class action; b. Conduct separate determinations of liability for Defendants’ admitted constitutional
violations, and of the appropriate remedy for Defendants’ admitted constitutional violations, pursuant to Rule 42(b) of the Federal Rules of Civil Procedure; c. Order a speedy hearing of the agreed declaratory judgments, pursuant to Rule 57 of the Federal Rules of Civil Procedure;
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d. Enter declaratory relief in the form of a judgment establishing that class members’ placement on a waiting list for appointed counsel by Defendants, and Defendants’ inability to assign class members competent, conflict-free counsel, violates their Sixth and Fourteenth Amendment right to the assistance of counsel;
e. Enter declaratory relief in the form of a judgment establishing that class members’ placement on a waiting list for appointed counsel by Defendants, and Defendants’ inability to assign them competent, conflict-free counsel, invidiously discriminates against class members based on wealth, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment;
f. Enter declaratory relief in the form of a judgment establishing that, when assigned counsel’s workloads or lack of available resources prevent counsel from providing indigent defendants with effective and conflict-free assistance of counsel, clients are deprived of their right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution; thus, the Sixth and Fourteenth Amendments require public defenders and other assigned counsel to refuse new or withdraw from existing cases when workloads or a lack of available resources would prevent counsel from providing effective and conflict-free assistance of counsel;
g. Enter declaratory relief in the form of a judgment establishing that any determination that workloads or inadequate resources will prevent a public defender or other assigned counsel from providing indigent defendants with effective and conflict-free assistance of counsel must be based on objective, reliable data;
h. Grant injunctive relief requiring Defendant Dixon to develop and conduct a workload study that provides an objective, reliable basis for public defenders or other assigned counsel in Orleans Parish and throughout Louisiana to refuse or withdraw from representation based
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on excessive workloads or a lack of adequate resources;17 i. Grant injunctive relief requiring Defendant Dixon to develop and implement a plan to
provide each criminal defendant in Orleans Parish and elsewhere in the state of Louisiana with competent, conflict-free counsel, and to ensure that assigned counsel has the necessary resources to provide effective assistance of counsel as required by the Sixth and Fourteenth Amendments, but on the condition that implementation of the plan not interfere with ongoing prosecutions; j. Appoint a special master, pursuant to Rule 53 of the Federal Rules of Civil Procedure, to assist the Court in fashioning and implementing a necessary and appropriate remedy for the agreed constitutional violations; k. Grant injunctive relief enjoining any provision of Louisiana law that directly prevents Defendants from remedying their admitted constitutional violations, but only to the extent absolutely necessary and appropriate to remedy the admitted constitutional violations; l. Grant any other relief this Court deems just and proper.
Submitted the 12th of August, 2016.
17 The Louisiana Public Defender Board is currently conducting a workload study with the American Bar Association and the Louisiana accounting firm Postlethwaite and Netterville. See Memorandum from Louisiana Public Defender Board to All Louisiana Public Defenders, (March 18, 2016), available at http://lpdb.la.gov/Serving%20The%20Public/News/txtfiles/pdf/LPDB%20Memo%20to%20Defe nders_3_18_2016.pdf; see also Letter from Paulette Brown, President, American Bar Association to Honorable John Bel Edwards, Governor of Louisiana (March 30, 2016), http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_s claid_2016mar30_louisianapublicdef_letter.authcheckdam.pdf.
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Respectfully submitted,
/s/ Brandon J. Buskey*, AL ASB2753-A50B (Lead Attorney) Ezekiel Edwards*, NY 4189304 American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th Floor New York, NY 10004 212-284-7364 bbuskey@aclu.org eedwards@aclu.org *Admitted Pro Hac Vice
/s/ Candice C. Sirmon, La No. 30728 (Notice Attorney) ACLU Foundation of Louisiana P.O. Box 56157 New Orleans, La 70156 (504) 522-0628 Facsimile: (888) 534-2995 Email: csirmon@laaclu.org
William P. Quigley #07769 Loyola University New Orleans College of Law 7214 St. Charles Avenue New Orleans, LA 70118 Cell 504.710.3074 quigley77@gmail.com
Anna Lellelid-Douffet #35204 PO Box 19388 New Orleans, LA 70179 (504) 224-9670 (c) alellelid.law@gmail.com
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Case 3:16-cv-00031-JJB-RLB Document 43 08/17/16 Page 20 of 20 CERTIFICATE OF SERVICE
I do hereby certify that on August 12, 2016, a true and correct copy of the foregoing Second Amended Class Action Complaint was served via with the CM/ECF system electronic system on John M. Landis and Maggie A. Broussard, counsel for Defendant James T. Dixon, Jr. and Mark Surprenant, Jennifer Barriere and Justin Schmidt counsel for Defendant Derwyn Bunton.
/s/ Candice C. Sirmon______________ Candice C. Sirmon, La. No. 30728 ACLU Foundation of Louisiana P.O. Box 56157 New Orleans, LA 70156 (504) 522-0628 Fax: (504) 613-6511 csirmon@laaclu.org
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

DARWIN YARLS, JR. ET AL VERSUS DERWYN BUNTON ET AL

CIVIL ACTION NO. 16-31-JJB-RLB

RULING

Over the past six months, this Court has expressed various concerns with this case,

concerns over justiciability, federalism, and whether the Court has the authority to fix a state

system, that, according to all parties to this dispute, is broken.1 The concerns that this Court has

with the case touch upon fundamental issues about the nature of its judicial power and, even more

fundamentally, about its role in relation to state criminal courts. Ultimately, and after reviewing

all of the briefing in this case, this Court finds that it is required to dismiss the case on comity and

federalism grounds.

I.

BACKGROUND

The Plaintiffs originally filed this class action lawsuit on January 14, 2016.2 They sought

to represent a class of Orleans Parish arrestees who had been placed on a waiting list by Defendants

Derwyn Bunton, the head of the Orleans Public Defenders (“OPD”), and James Dixon, the

Louisiana State Public Defender who is tasked with administering Louisiana’s public defense

system. In their initial complaint, Plaintiffs merely requested declaratory relief that their placement

on a waiting list violated their Sixth and Fourteenth Amendment rights to counsel and their

Fourteenth Amendment right to equal protection.3 Later, Plaintiffs amended their complaint to ask

1 Order, Doc 34; Order, Doc. 53. 2 Complaint, Doc. 1. 3 Id. at 15-16.
1

for injunctive relief as well.4 Additionally, the parties quickly submitted, for the Court’s approval,
a Joint Motion for Final Declaratory and Partial Injunctive Relief.5 This Motion included a
Proposed Opinion and Order.6
This Court was asked to sign the Proposed Opinion which included a final declaratory
judgment establishing that proposed class members’ constitutional rights were violated and interim
injunctive relief, primarily in the form of reporting by both Defendants on the status of waiting
lists in Orleans Parish. The Proposed Order also pronounced that this Court would “retain
jurisdiction to monitor and enforce compliance with this judgment and other ancillary matters that
arise.”7 According to the Proposed Opinion, abstention would not be warranted in this case under
Younger v. Harris.8
During a telephone conference on June 16, 2016, the Court explained its concerns relative
to the joint submission and ordered the parties to submit supplemental memoranda addressing the
following issues: “(1) the means available for this Court to provide an adequate remedy to redress
the alleged constitutional violations and the Court’s authority to provide such relief; (2) the proper
order of proceedings…(3) the plaintiffs’ standing for injunctive relief (particularly
redressability)…and (4) identifying other cases addressing the same issues in Orleans Parish.”9
The Court had two main concerns in asking for this briefing. First, the Court was concerned with
4 Am. Compl. 14, Doc. 27. 5 Doc. 29. 6 Id. at 6. 7 Id. at Proposed Opinion 6, Doc. 29. 8 The Younger section of the Proposed Opinion stated: “The Court finds that abstention is not warranted under Younger…As a practical matter, Plaintiffs’ prosecutions were effectively stayed by the state’s failure to provide them with an attorney, since the State cannot conduct any critical stages of the prosecution in the absence of defense counsel…A declaratory judgment therefore does not risk interference with an ongoing criminal proceeding…If anything, a declaratory judgment would facilitate the trial…Abstention is also unwarranted because declaratory relief is not directed at the fact of Plaintiffs’ prosecutions, nor could it be raised as an affirmative defense in those prosecutions.” Id. at 2 (internal citations omitted). The Court disagrees with this proposed finding, and, for the reasons stated below, it finds that it must refrain from hearing this case based on Younger. 9 Order, Doc. 31.
2

whether it would be acting beyond the bounds of its Article III power in entertaining a dispute that
was not a typical case or controversy, but rather, an attempt to remedy the undisputed inadequacies
of a state funding system. Second, it was concerned with the myriad comity issues that would
result were this Court to issue injunctive relief against members of the state judiciary and public
defender offices or the public defender board. Notably, only the Plaintiffs responded to the Court.10 The Plaintiffs submitted a
supplemental memorandum that provided a multi-step proposal that the Court would follow in this case.11 Plaintiffs noted that one Defendant had a few disagreements with the proposed relief, but neither Defendant submitted his own memorandum.12 At the time of filing, OPD had declined 150 cases and 35 individuals remained on OPD’s waiting list for appointed counsel.13 That
memorandum also noted that the Orleans criminal bench had removed individuals from the waiting
list either by appointing cases to OPD – over OPD’s objections that it could not provide ethical
representation given its huge workload – or by appointing private counsel even though there is no separate funding source to cover the costs of appointed private counsel.14 Additionally, the
memorandum proposed a five-step process for the Court to exercise its remedial authority.
The Court issued another Order on July 14, 2016 terminating the Joint Motion for Final
Declaratory and Partial Injunctive Relief. In this Order, the Court again noted that it had concerns
10 As discussed more fully below, the Court has had a difficult time discerning the extent of its remedial authority having received little to no input from Defendants on the issues. The parties are aligned in seeking a judicial declaration from this Court in an apparent attempt to place pressure on the Louisiana legislature to increase funds for public defense services. While the parties’ interests are laudable, the parties ask this Court to take on a role that it is not allowed to play. The legislature is the proper entity to resolve this funding crisis. 11 Supp. Mem. Doc. 33. 12 Id. at 1 (“Plaintiffs’ counsel consulted with opposing counsel for both Defendants prior to filing this supplemental memorandum. Counsel for Defendant Dixon do not consent to Steps 3-5, outlined in [this memo]. Otherwise, Defendants have no objections to Plaintiffs’ memo.”). 13 Currently, there are 84 defendants on the waitlist, 29 of whom are incarcerated. Def.s’ Jurisdictional Memo. 2, Doc. 57. 14 Id. at 3.
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about “the relief requested, the parties necessary to effectuate such relief, the order of proceedings suggested by the Plaintiffs, and federalism.”15 Due to its concerns over federalism, the Court
encouraged the parties to seek “whatever relief they can in the courts handling the criminal cases involved or other avenues of relief they may have.”16
At the request of the Court, the Plaintiffs filed a Second Amended Complaint. After
reviewing the Second Amended Complaint, the Court asked for further briefing from the parties.
Given that both parties appeared to agree that Defendants’ actions were in violation of the
Constitution, the Court asked the parties to address justiciability issues and it repeated that it still had federalism concerns.17 The Court noted that if its concerns were not satisfied by the briefing,
it would dismiss the case.
II. DISCUSSION Unfortunately, the Court’s concerns have not been satisfied by the parties. Unlike most
cases, here, there is no disagreement as to liability.18 The only issues for the Court to decide are
remedial in nature. The Court has had a difficult time discerning the extent of its remedial authority
in this case because the parties are not concretely adverse. The Supreme Court has recently noted
that even when Article III permits the exercise of federal jurisdiction, prudential considerations
demand that a federal court insist upon that “concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult constitutional questions.”19 Here, the parties are not directly opposed and so, at every turn, the Court has had to
15 Order, Doc. 34. 16 Id. 17 Notice and Order, Doc. 53. 18 Pl.s’ Jurisdictional Memo. 6, Doc. 56 (“[W]hile Defendants agree with class members’ assertions that waiting lists are unconstitutional, Defendants have not given that agreement any legal effect by providing class members with competent counsel.”); Def.s’ Jurisdictional Memo. 5, Doc. 57 (“Mr. Bunton agrees that under the law the putative class members deserve counsel and that it is his role to provide that counsel. However, it is his position…that providing counsel to prospective clients on the waitlist would violate numerous ethical concepts.”). 19 United States v. Windsor, 133 S.Ct. 2675, 2687 (2013) (citing Baker v. Carr, 369 U.S. 186, 204 (1962)).
4

question the nature of its own power without the aid of the illumination that “concrete adverseness”
brings.
This Court does not have the remedial tools to resolve the funding crisis. By all objective measures, there is a crisis in public defense funding in Louisiana.20 However, this does not mean
that this federal district court, in a civil section 1983 class action, is the correct forum to remedy
this serious systemic problem. At this point in time, it is a problem to be resolved by the State
legislature. To the extent the federal judiciary has a role to play in passing judgment on the quality
of representation by state public defenders, it must address those issues in post-conviction
proceedings. Otherwise the judiciary would be interfering with state criminal proceedings and run afoul of the balance struck between federal and state courts.21 Any declaratory judgment or
injunction entered by this Court would inevitably lead it to become the overseer of the Orleans
Parish criminal court system, a result explicitly condemned by the United States Supreme Court in Younger and O’Shea.22
While the Court prefers to discuss its reasons for dismissing this case under the umbrella
of Younger abstention, it alternatively finds that this is a non-justiciable case under Article III.
“Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so.”23 “There is no reason to demand a final expression in terms of standing,
ripeness, mootness, or political question doctrine, if the court is able to conclude that there is no
20 Joint Proposed Opinion 1-2, Doc. 29 (“[T]here is no dispute that the state legislature has chronically underfunded Louisiana’s public defender system. The system relies overwhelmingly on a $45 fee assessed on those convicted of a crime. In practice, approximately two-thirds of public defense funding comes from fees collected on traffic tickets. This system is inherently unreliable and inadequate. It renders public defender funding dependent on factors entirely divorced from the actual demand for public defenders, such as the number of highways that pass through a district…Plaintiffs’ Sixth Amendment right to counsel has been violated.”). 21 As will be discussed later, the Fifth Circuit has cautioned federal district courts not to issue relief that would amount to “an ongoing federal audit of state criminal proceedings…” Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir. 1974). 22 Younger v. Harris, 401 U.S. 37 (1971); O’Shea v. Littleton, 414 U.S. 488 (1974). 23 Renne v. Geary, 501 U.S. 312, 316 (1991).
5

sufficient need for deciding the issues tendered without relying on the frequent question begging
terminology of any single concept.”24 Although the Court could express its reasons for dismissing
this case in terms of standing (especially the redressability prong), the prohibition against advisory
opinions, or ripeness, the Younger doctrine provides a clearer framework for this Court to discuss
those same concerns.
A. Federalism and Comity Concerns This Court has repeatedly expressed its federalism concerns and, although Plaintiffs’ goals
are laudable, the Court is unable to surmount the difficult federalism obstacles that any grant of
relief in this case would necessarily entail. Both the Fifth Circuit and Eleventh Circuit have focused
on Younger abstention as the primary reason as to why a federal court must decline this kind of
case.25
“In general, the Younger doctrine requires that federal courts decline to exercise
jurisdiction over lawsuits when three conditions are met: (1) the federal proceeding would interfere
with an ongoing state judicial proceeding; (2) the state has an important interest in regulating the
subject matter of the claim; and (3) the plaintiff has an adequate opportunity in the state
proceedings to raise constitutional challenges.”26 Abstaining from interference in state criminal
proceedings preserves the “vital consideration” of comity between the federal and state courts.27
The Supreme Court explained Younger abstention in this way:
The concept does not mean blind deference to ‘State’s Rights’ any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and
24 Ciudadanos Unidos De San Juan v. Hidalgo Cnty. Grand Jury Com’rs, 622 F.2d 807, 815 n. 17 (5th Cir. 1980) (internal quotation marks and citation omitted). 25 Gardner v. Luckey, 500 F.2d 712 (5th Cir. 1974); Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992) (“Luckey V”). 26 Bice v. Louisiana Public Def. Board, 677 F.3d 712, 716 (5th Cir. 2012) (emphasis added and citations omitted). 27 Luckey V, 976 F.2d at 676.
6

federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the states.28
Federal courts may not entertain actions that seek to impose “an ongoing federal audit of
state criminal proceedings.”29 In Gardner v. Luckey, the plaintiffs were three Florida residents who
had been separately convicted of crimes.30 They brought a class action under Section 1983 against
their state public defender offices, seeking declaratory and injunctive relief.31 “The thrust of their
complaint was that the Public Defender Officers systematically failed to meet minimum
constitutional standards in the representation afforded indigents” at both their trial and appellate
stages.32 The plaintiffs did not seek release nor did they seek damages. Instead, they asked the
district court to issue a declaratory judgment that the Public Defenders’ acts and practices violated
their rights.33 They also requested an injunction that would enjoin the Public Defenders from
further representing indigents unless certain minimum standards were met.34 The case was
dismissed by the district court for various reasons.35 The Fifth Circuit affirmed the dismissal, but
noted that it was affirming the dismissal on other grounds—namely because of Younger abstention:
“[T]o the extent the complaint alleged present and continuing constitutional deprivations due to
the representation appellants were receiving in pending state appeals proceedings,
Younger…barred the suit.”36 The Court also noted that Younger barred it from issuing any type of
relief because any attempt by the federal court to enforce its injunction against the public defenders
28 Younger, 401 U.S. at 44. 29 O’Shea, 414 U.S. at 500; Gardner, 500 F.2d at 715 (“This seems to us nothing less than an ongoing federal audit of state criminal proceedings which would indirectly accomplish the kind of [interference] that Younger v. Harris and related cases sought to prevent. It is clear from the face of their complaint that our appellants contemplate exactly the sort of intrusive and unworkable supervision of state judicial processes condemned in O’Shea.”) (citations omitted). 30 Id. at 713. 31 Id. 32 Id. 33 Id. 34 Id. 35 Id. at 714. 36 Id.
7

in individual cases would act as “an ongoing audit of state criminal proceedings” which the court
was prohibited from doing.37 The Fifth Circuit indicated that the proper avenue for plaintiffs to
challenge their public defense was via habeas corpus: “[W]e hold that appellants cannot get into
federal court to make their sweeping challenge to the operation of the Florida Public Defender
Offices. We emphasize, however, that they are not left without a remedy for constitutional wrongs,
if any, done them by the Offices. They can challenge the legality of their custody via federal habeas
corpus, subject, of course to prior exhaustion of state remedies.”38
Even seemingly limited remedies present comity problems if enforcing these remedies
would require a federal court to intermeddle in state criminal prosecutions.39 In Luckey v. Miller
(“Luckey V”), the Eleventh Circuit affirmed a district court decision to dismiss a class action
indigent defense case on abstention grounds.40 Prior to its decision in Luckey V, the Eleventh
Circuit had upheld the plaintiffs’ complaint in the face of both 12(b)(6) and Eleventh Amendment
challenges. Plaintiffs’ complaint asserted a class action on behalf of all individuals who are or in
the future would be adversely affected by the unconstitutional practices of the Georgia public
defender system.41 The defendants in the case were the Georgia governor and “all Georgia judges
responsible for providing assistance of counsel to indigents criminally accused in Georgia
courts.”42 Plaintiffs argued that the public defender system was so inadequate that it violated their
37 Id. at 715. 38 Id. 39 Luckey V, 976 F.2d at 679; see also E.T. v. Cantil-Sakauye, 682 F.3d 1121, 1125 (9th Cir. 2011) (citing Luckey V, 976 F.2d at 679). In E.T. v. Cantil-Sakauye, the plaintiffs were foster children who brought a putative class action against state and county judicial officials, alleging that the caseloads of the county dependency court and courtappointed attorneys were so excessive as to violate federal law. The district court granted a motion to dismiss, finding that it was required to abstain. The Ninth Circuit affirmed. The court declined the plaintiffs’ “invitation to consider in isolation their (now-narrowed) request for relief, as though reaching the merits of their declaratory judgment claims would end the matter. For ‘even the limited decree’ sought here ‘would inevitably set up the precise basis for future intervention condemned in O’Shea.’” 40 Luckey V, 976 F.2d at 674. 41 Id. at 676. 42 Luckey v. Harris, 860 F.2d 1012, 1013 (11th Cir. 1988) (“Luckey I”).
8

Sixth, Eighth, and Fourteenth Amendment rights. The plaintiffs sought either declaratory relief (a judgment by the court that the state actors must use their best efforts to bring the public defense system in line with the US Constitution) or injunctive relief (various court orders which would require the defendants to provide adequate counsel).43
The court held that “[l]aying the groundwork for a future request for more detailed relief which would violate the comity principles expressed in Younger and O’Shea is the precise exercise forbidden by the abstention doctrine.”44 In other words, the court said, even at the motion to dismiss stage, it was not supposed to view the case in a vacuum. The plaintiffs argued, as they do in this case, that the court had a host of remedies available that would not offend comity principles. As an example, they said that a “declaratory judgment could be imposed and the state defendants left to their own resources in formulating a means for compliance.”45 They also argued that “a simple ‘best efforts’ decree would leave the defendants similar autonomy in fashioning their means of compliance.”46 The court ultimately found that even these limited remedies presented comity problems. At the motion to dismiss stage, the court held that it was required to question the “potential enforcement difficulties” that would arise if the defendants did not comply with the court’s orders. The court held that “hypothesized recalcitrance” was the precise inquiry required by the court: “This Court is constrained, therefore, to focus on the likely result of an attempt to enforce an order of the nature sought here. It would certainly create an awkward moment if, at the end of protracted litigation, a compliance problem arose which would force abstention on the same ground that existed prior to trial.”47
43 Luckey V, 976 F.2d at 676, 678. 44 Id. at 679. 45 Id. at 678. 46 Id. at 679. 47 Id.
9

While the Plaintiffs in this case assert that the relief they request will not raise federalism
concerns, this Court disagrees. Like the Luckey V court, this Court must address the potential
enforcement difficulties that would follow were it to issue even the seemingly limited relief sought
by Plaintiffs. At various points throughout this litigation, the Plaintiffs have told the Court that it
should not worry about potential enforcement difficulties until later in this litigation.48 Based on
O’Shea and Luckey, this Court disagrees. It must address the potential enforcement difficulties
now.
Plaintiffs have clearly requested relief which would inevitably cause this Court to violate
comity and federalism principles. Here, the Plaintiffs have requested various forms of relief. In
their most recent complaint, they ask for four different declarations of law and three types of
injunctive relief.49 The Plaintiffs have characterized their requested relief in this way: “They seek
an order from the federal court recognizing that waiting lists are unconstitutional and ordering
Defendants to develop and implement a plan to provide them with competent counsel.”50
On its face, an injunction that requires the Defendants to “implement a plan” to provide the
class with competent counsel may seem innocuous enough, but, what would happen if the
Defendants failed to implement the plan? Would this Court have to order attorneys for certain
indigents? To what extent would this Court be encroaching upon the role of the state judges in
48 Pl.s’ Jurisdictional Memo. 2, Doc. 56 (“Irrespective of what form of equitable relief this Court enters, it has the right to expect that the state of Louisiana will honor the Court’s orders, and the authority to ensure that it does. The possibility of noncompliance by the State and its officials cannot justify denying Plaintiffs jurisdiction to obtain critical relief under the [US] Constitution.”); Id. at 16, 19 (“[S]tate officials may not claim good faith or lack of funding as defenses to a court order for injunctive relief…Defendants must instead demonstrate that compliance with the federal order is impossible. This is a difficult standard to satisfy, and one that Defendants would have the burden to establish. However, these are questions the Court should not reach until the remedial phase of this litigation, if it reaches them at all. There is no evidence in the record to suggest that the State of Louisiana – acting, as it must, through its executive officials, the judiciary, and the legislature – will prove unequal to the task of ending waiting lists if this Court issues Plaintiffs’ requested declaratory and injunctive relief….[A]gain, these are issues for another day.”) (emphasis added). 49 Second Am. Compl. 16, Doc. 43. 50 Pl.s’ Jurisdictional Memo. 8, Doc. 56.
10

individual prosecutions? What would happen if inconsistent orders were issued? What if the Defendants were nominally complying with the order by assigning counsel to indigents but those attorneys were not “competent?” Would the Court have to make a “competence” determination pretrial? Would a class member be able to enforce the injunction and find that counsel was ineffective at the pretrial stage thereby circumventing the post-conviction habeas process? What if Defendants still refused to comply? Would this Court order the state courts to release the incarcerated members who were still on the waitlist? The Court declines to issue injunctive relief because it will inevitably lead this Court to engage in an ongoing audit of the criminal cases in Orleans Parish.
Likewise, the Court refuses to issue declaratory relief that will be ineffective. In order to surmount the federalism problems, the Plaintiffs have suggested that the Court should “consider the propriety of issuing a final declaratory judgment – as opposed to a declaratory order – without entering injunctive relief.”51 However, any declaratory judgment issued would be an advisory opinion with no real impact. Further, Defendants cannot dispute that waitlists violate the constitution, but they use them in an attempt to comply with ethical duties that require them to limit their caseloads.52 By issuing a declaratory judgment, the Court would just be repeating what those involved already know—Defendants are not living up to their duties.
The Court’s holding that it is required to abstain from hearing this case is further bolstered by the fact that neither the Supreme Court nor the Fifth Circuit have recognized a pretrial ineffective assistance of counsel claim. Such claims have not been recognized by many federal
51 Pl.s’ Jurisdictional Memo. 18, Doc. 56. 52 See id. at 6. (“[W]hile Defendants agree with class members’ assertions that waiting lists are unconstitutional, Defendants have not given that agreement any legal effect by providing class members with competent counsel.”); Def.s’ Jurisdictional Memo 5, Doc. 57 (“Mr. Bunton agrees that under the law the putative class members deserve counsel and that it is his role to provide that counsel. However, it is his position…that providing counsel to prospective clients on the waitlist would violate numerous ethical concepts.”).
11

circuits because doing so would require federal district courts to oversee and interfere in pending
state criminal cases. However, state courts in Pennsylvania, New York, and Michigan have all held
that pretrial ineffective assistance claims are cognizable.53 In those state court decisions, abstention
issues obviously had no relevance. The Michigan appellate court noted that while it could hear
these pretrial claims, a federal court would not be able to because doing so would require it to
review and interrupt ongoing state proceedings and “intermeddl[e] in state prosecutions.”54 This
Court likewise sees no way to enter this funding fray without intermeddling in state criminal
prosecutions potentially causing inconsistent relief.
III. CONCLUSION
It is clear that the Louisiana legislature is failing miserably at upholding its obligations
under Gideon.55 Budget shortages are no excuse to violate the United States Constitution. The
legislature must resolve the crisis and locate a stable source of funding. As Judge Arthur Hunter,
a criminal district court judge in Orleans Parish, recently observed in ordering incarcerated
defendants on the waitlist to be released:
The defendants’ constitutional rights are not contingent upon budget demands, waiting lists, and the failure of the legislature to adequately fund indigent defense…We are now faced with a fundamental question, not only in New Orleans, but across Louisiana: What kind of criminal justice system do we want? One based on fairness or injustice, equality or prejudice, efficiency or chaos, right or wrong?56
53 Kuren v. Luzerne Cnty., 146 A.3d 715 (Pa. 2016); Hurrell-Harring v. NY, 930 N.E.2d 217 (N.Y. 2010); Duncan v. Michigan, 774 N.W.2d 89 (Mich. Ct. App. 2009), aff’d 866 N.W.2d 407 (Mich. 2010). A federal court recently described these three cases in the following manner: “Each of the cases cited was brought as a class action suit on behalf of indigent criminal defendants. They have presented the question of whether, based on specific allegations, a particular indigent defense program has been chronically underfunded and understaffed to the point that the public defenders have been unable to provide constitutionally adequate representation…In each of these cases, the court[s] allowed the claims to proceed, finding the facts asserted were compelling and sufficient to withstand motions to dismiss.” Cox v. Utah, Civil Action No. 16-53, 2016 WL 6905414, at *3 (D. Utah Nov. 7, 2016). 54 Duncan, 774 N.W.2d at 129 n. 18. 55 See generally Bill Quigley, No Lawyers? No Jail. Judge Demands Constitution Be Respected in Louisiana Public Defender Catastrophe, Huffington Post, Apr. 9, 2016; Tina Peng, I’m a Public Defender. It’s Impossible For Me To Do A Good Job Representing My Clients, Washington Post, Sept. 3, 2015; John Burkhart, The Crisis in Public Defense Funding: The Approaching Storm & What Must Be Done, 62 Louisiana Bar Journal 360, Winter 2015. 56 State v. Bernard, No. 528-021 (La. Crim Dist. Ct. Parish of Orleans April 8, 2016).
12

This Court has faith that the state court criminal judges will do their best to uphold the constitutional rights of the defendants on the waitlist. But the judges can only offer temporary relief in this crisis. Lasting relief will only come when the legislature locates an adequate source of funding for public defense offices.
For the reasons stated above, this case will be dismissed as a matter of federalism and comity.
Signed in Baton Rouge, Louisiana, on January 31, 2017.

JUDGE JAMES J. BRADY UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA
13

 
 Case 3:16-cv-00031-JJB-RLB Document 66 09/25/17 Page 1 of 3

UNIITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Darwin Yarls, Jr., Leroy Shaw, Jr. and Douglas R.

)

Brown on Behalf of Themselves and All Others

)

Similarly Situated,

)

Plaintiffs,

)

)

vs.

)

)

Derwyn Bunton, in his official capacity as Chief

)

District Defender for Orleans Parish, Louisiana; James )

T. Dixon, Jr., in his official capacity as Louisiana State )

Public Defender,

)

)

Defendants.

)

)

No. 3:16-cv-31-JJB-RLB
JUDGE: James J. Brady MAGISTRATE JUDGE: Richard L. Bourgeois, Jr.

NOTICE OF APPEAL Notice is hereby given that Plaintiffs Darwin Yarls, Jr., Leroy Shaw, Jr., and Douglas R. Brown appeal this Court’s “Order to Amend Complaint” (Doc. 34, dated July 14, 2016), “Order Dismissing Case” (Doc. 63, dated January 31, 2017), and “Order Denying Motion for Relief from Judgement” (Doc. 65, dated August 23, 2017) to the United States Court of Appeals for the Fifth Circuit.

Dated: September 25, 2017

Respectfully Submitted,

/s/ Bruce W. Hamilton, La No. 33170 (Notice Attorney) ACLU Foundation of Louisiana P.O. Box 56157 New Orleans, LA 70156 (504) 522-0628 Facsimile: (504) 613-6511 Email: bhamilton@laaclu.org

Case 3:16-cv-00031-JJB-RLB Document 66 09/25/17 Page 2 of 3
/s/ Brandon J. Buskey*, AL ASB2753-A50B (Lead Attorney) Ezekiel Edwards*, NY 4189304 American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th Floor New York, NY 10004 212-284-7364 bbuskey@aclu.org eedwards@aclu.org *Admitted Pro Hac Vice
William P. Quigley La No. 07769 Loyola University New Orleans College of Law 7214 St. Charles Avenue New Orleans, LA 70118 Cell: (504) 710-3074 Email: quigley77@gmail.com
Anna Lellelid-Douffet La No. 35204 P.O. Box 19388 New Orleans, LA 70179 Cell: (504) 224-9670 Email: lellelid.law@gmail.com
Attorneys for Plaintiffs

Case 3:16-cv-00031-JJB-RLB Document 66 09/25/17 Page 3 of 3
CERTIFICATE OF SERVICE I certify that on September 25, 2017, a true and correct copy of the foregoing document was served via the Court’s electronic filing system to all counsel of record.
/s/ Bruce Hamilton Bruce Hamilton

 
 Case: 17-30779 Document: 00514669544 Page: 1 Date Filed: 10/04/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals Fifth Circuit

FILED

No. 17-30779

October 4, 2018 Lyle W. Cayce

Clerk

DARWIN YARLS, JR., LEROY SHAW, JR., and DOUGLAS BROWN, on Behalf of Themselves and All Others Similarly Situated,

Plaintiffs–Appellants,

v.

DERWYN BUNTON, in his official capacity as Chief District Defender for Orleans Parish, Louisiana; JAMES T. DIXON, JR., in his official capacity as Louisiana State Public Defender,

Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Louisiana

Before JOLLY, ELROD, and WILLETT, Circuit Judges. DON R. WILLETT, Circuit Judge
This is a constitutional challenge to Louisiana public defenders’ practice—now discontinued—of placing indigent, non-capital defendants on waitlists for appointed counsel. Appellants allege this practice, the result of chronic budgetary shortfalls, violates poor defendants’ Sixth and Fourteenth Amendments rights to a speedy trial and to assistance of counsel. They seek a declaratory judgment that such waitlists are unconstitutional and injunctive relief requiring Appellees—the Louisiana State Public Defender and the Chief District Defender for Orleans Parish—"to provide competent counsel to

Case: 17-30779 Document: 00514669544 Page: 2 Date Filed: 10/04/2018
No. 17-30779 individuals on waiting lists.” (Interestingly, Appellees neither resist federal jurisdiction nor oppose Appellants’ requested relief.)
Appellants dub this “a constitutional crisis of unprecedented dimension.” Certainly, the constitutional safeguards due indigent arrestees awaiting representation is a weighty matter. So too is another constitutional safeguard: the mootness doctrine derived from Article III’s “case or controversy” requirement. And on mootness, all parties concede a fundamental point: The Louisiana Legislature’s recent $5 million reallocation of indigent-defense funding has eliminated all waitlists for non-capital defendants. As the State Public Defender plainly puts it, “Current waitlists in the districts for noncapital defendants are non-existent.”1 Appellants discount the revenue boost as an insufficient stopgap given public defenders’ caseloads. The legal upshot, though, is unmistakable: The controversial waitlists are no longer in controversy. And no waitlists = no live case or controversy = no jurisdiction.
We thus DISMISS this appeal as moot. I
Louisiana funds representation for non-capital defendants through legislative appropriations at the state level, supplemented by traffic tickets and other local fines assessed by each defender district. During a 2015 funding shortage, the Orleans Public Defender (OPD) and about 30 other districts implemented Restriction of Services (ROS) protocols as a triage measure. The protocols resulted from a statewide audit that determined, “in light of current caseloads,” OPD was unable to “provide constitutional, ethical representation to its clients” as required by the Rules of Professional Conduct. Because the
1 The State Public Defender’s brief adds, “None of the districts currently in restriction of services report a waitlist for appointment of counsel for non-capital defendants.”
2

Case: 17-30779 Document: 00514669544 Page: 3 Date Filed: 10/04/2018
No. 17-30779 Rules are black letter law in Louisiana,2 ROS protocols prescribed waitlists for non-capital defendants to keep attorney caseloads within reasonable limits.
This suit originated when Appellants—Darwin Yarls, Jr., Leroy Shaw, and Douglas Brown—requested appointed counsel after being arrested on noncapital felony charges in Orleans Parish. The state court appointed OPD to represent them. But OPD responded that, due to excessive caseloads and staff shortages, it could not accept Appellants as clients and instead placed them on a waitlist for appointed counsel. Appellants thus lacked representation for preliminary hearings to scrutinize the allegations against them, challenge probable cause determinations, or request lower bail. Appellants were ultimately detained without counsel for several months. Each has since been released.
Appellants filed a proposed class action under 42 U.S.C. § 1983, seeking to represent a class of Orleans Parish arrestees who had been waitlisted. Appellants first requested a declaratory judgment that the waitlists violated their Sixth Amendment right to counsel and their Fourteenth Amendment rights to equal protection and due process. They asserted that due to Chief District Defender Derwyn Bunton’s and OPD’s refusal to represent them, they faced “an unduly heightened risk of prolonged and unnecessary pretrial detention.” Appellants later amended their complaint to seek injunctive relief too, specifically requesting that Appellees be ordered to develop a plan to provide appointed counsel for each waitlisted defendant and to submit various reports.
After several months of negotiation, the parties submitted a Joint Motion for Final Declaratory and Partial Injunctive Relief. The accompanying
2 See Walker v. DOT, 817 So. 2d 57, 60 (La. 2002) (“[T]his court has determined that the ethical rules which regulate attorneys’ law practices have been recognized as having the force and effect of substantive law.”).
3

Case: 17-30779 Document: 00514669544 Page: 4 Date Filed: 10/04/2018
No. 17-30779 Proposed Order declared that OPD waitlists violated proposed class members’ constitutional rights. The district court went another route. It dismissed the case, citing Younger abstention, justiciability, and federalism concerns.3 Appellants then filed an unopposed Motion for Relief from Judgment. The district court denied the motion, and Appellants appealed.
Then in 2017, after this appeal was filed, the Louisiana Legislature amended the Public Defender Act to steer $5 million more to district defenders for non-capital indigent defense. Nobody disputes that this added revenue eliminated non-capital waitlists. Appellants remained unmoved, however, branding Louisiana’s funding for indigent defense “inherently inadequate and unreliable,” adding, “conditions in Orleans may soon deteriorate once again,” necessitating future waitlists.
II We review a district court’s Rule 12(b)(6) dismissal de novo and may affirm “on any grounds supported by the record, including a party’s lack of standing.”4 Lack of standing means lack of jurisdiction. And lack of jurisdiction means lack of judicial power. The nub of today’s “dispute” is undisputed: Louisiana no longer maintains waitlists for non-capital defendants. The case, thus moot, must be dismissed.
A Article III’s case-or-controversy requirement imposes an “irreducible constitutional minimum of standing,”5 which consists of three elements: (1) a plaintiff must have suffered an “injury in fact—an invasion of a legally protected interest which is . . . concrete and particularized, and . . . actual or
3 See Younger v. Harris, 401 U.S. 37 (1971) (generally barring federal courts, except in certain circumstances, from interfering with ongoing state criminal proceedings).
4 Hosein v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006). 5 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
4

Case: 17-30779 Document: 00514669544 Page: 5 Date Filed: 10/04/2018
No. 17-30779 imminent”; (2) there must be “a causal connection between the injury and the conduct complained of”; and (3) the injury must be likely to be redressed by a favorable decision.6
Importantly, having Article III standing at the outset of litigation is not enough. “There must be a case or controversy through all stages of a case”— not just when a suit comes into existence but throughout its existence.7 “A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.’”8 “No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.’”9
Here, both sides acknowledge that the Louisiana Legislature’s recent reallocation of indigent-defense funding has eliminated the practice of putting non-capital defendants on waitlists. The State Public Defender describes the current situation this way: “None of the districts currently in restriction of services report a waitlist for the appointment of counsel for non-capital defendants.” Simply put, there remains no “live controversy” as to these Appellants, and any relief they seek now would be “meaningless.”10 The waitlists were controversial, but that controversy has concluded.
6 Fla. Dep’t of Ins. v. Chase Bank of Tex. Nat’l Ass’n, 274 F.3d 924, 929 (5th Cir. 2001) (quoting Lujan, 504 U.S. at 560–61).
7 K.P. v. LeBlanc, 729 F.3d 427, 438 (5th Cir. 2013); see also Alvarez v. Smith, 558 U.S. 87, 92 (2009).
8 Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)).
9 Id. at 91 (quoting Alvarez, 558 U.S. at 93). 10 See id; Fontenot v. McCraw, 777 F.3d 741, 747 (5th Cir. 2015) (“Because there remains no live controversy between the parties . . . the injunction they seek would be meaningless.”).
5

Case: 17-30779 Document: 00514669544 Page: 6 Date Filed: 10/04/2018
No. 17-30779 And it might not even be a “controversy” at all: Federal courts generally refrain from granting relief without the “concrete adverseness which sharpens the presentation of issues upon which the court[s] so largely depend[] for illumination of difficult constitutional questions.”11 All parties agree that waitlists are unconstitutional. They all agree that waitlists for non-capital defendants no longer exist. They all agree that this case does not implicate abstention concerns, even though a state-government defendant would typically object on this basis. They even agree that they disagree: When the district court asked the parties whether they agreed too much for a truly adversarial proceeding, they—no surprise—agreed that “there was sufficient adversity.” This deep-rooted agreement on the central issues of the case gives us further pause to address the merits. But because we hold that the dispute (such as it is) is moot, we need not address “concrete adverseness” today.
B Of course, a defendant cannot moot a case simply by ending its unlawful conduct once sued.12 If this were allowed, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”13 As we have noted, “Defendant-induced mootness is viewed with caution.”14 “[A]llegations 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.”15 Essentially, the goal is
11 Baker v. Carr, 369 U.S. 186, 204 (1962). 12 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). 13 Already, 568 U.S. at 91. 14 Fontenot, 777 F.3d at 747. 15 Envt’l Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008).
6

Case: 17-30779 Document: 00514669544 Page: 7 Date Filed: 10/04/2018
No. 17-30779 to determine whether the defendant’s actions are “litigation posturing” or whether the controversy is actually extinguished.16
Here, neither side contends the case has ended, though both sides concede the waitlists have ended. But no matter whose actions are credited with mooting the case—Appellees for discontinuing the waitlists, or the Legislature for reallocating the funding—this case neither invokes the skepticism normally associated with “defendant-induced mootness” nor raises suspicions of “litigation posturing.” This is in part because we “are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude.”17 Absent evidence to the contrary, we are to presume publicspiritedness, says the Supreme Court. Government officials “in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties.”18 So, “[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.”19
What’s more, in this case the public defenders largely agreed that waitlists were unconstitutional, but argued that inadequate funding tied their hands. Indeed, Appellees joined Appellants in urging us to declare the waitlists unconstitutional. So, it is highly unlikely that the “formally announced change[] to official governmental policy”—eliminating non-capital defendant
16 See, e.g., Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 426 (5th Cir. 2013).
17 Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009), aff’d on other grounds sub nom. Sossamon v. Texas, 563 U.S. 277 (2011).
18 Id. 19 Id.
7

Case: 17-30779 Document: 00514669544 Page: 8 Date Filed: 10/04/2018
No. 17-30779 waitlists—is “mere litigation posturing.”20 We doubt Appellees will reimplement waitlists on their own initiative.
C While it is possible that some day, for some reason, waitlists could resume, Appellants’ claims do not satisfy the “capable of repetition, yet evading review” exception to the mootness doctrine.21 That exception applies only when “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again.”22 The second prong presents a problem for Appellants. The Supreme Court has “consistently refused to ‘conclude that the case-or-controversy requirement is satisfied by’ the possibility that a party ‘will be prosecuted for violating valid criminal laws.’”23 Instead, courts must “assume that [Appellants] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct.”24 Here, there is no “reasonable expectation that the same complaining party will be subjected to the same action again.”25 Indeed, for that to happen, Appellants would need to violate the law again, be apprehended again, and be placed on a waitlist while in pretrial custody again. Because we must assume
20 Id. 21 United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018) (quoting Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016)). 22 Turner v. Rogers, 564 U.S. 431, 440 (2011) (cleaned up). 23 Sanchez-Gomez, 138 S. Ct. at 1540–41 (quoting O’Shea v. Littleton, 414 U.S. 488, 497 (1974)). 24 Id. at 1541; see, e.g., Spencer v. Kemna, 523 U.S. 1, 15 (1998) (reasoning that a suit concerning a parole revocation order was moot following the appellant’s release from custody because any continuing consequences were “contingent upon [the appellant] violating the law, getting caught, and being convicted”). 25 Turner, 564 U.S. at 439–440.
8

Case: 17-30779 Document: 00514669544 Page: 9 Date Filed: 10/04/2018
No. 17-30779 that Appellants will follow the law rather than flout it, we cannot deem their claims “capable of repetition.”
* * * The funding plight afflicting public defenders is real.26 But under Article III, courts may adjudicate only “actual and concrete disputes, the resolutions of which have direct consequences on the parties involved.”27 Anything we decide regarding Louisiana public defender practices would have zero consequences on the parties involved. No defender district subject to ROS protocols maintains a waitlist for appointed counsel for non-capital defendants. As the waitlists have disappeared, so too have Appellants’ constitutional claims.
III However this case is framed—a genuinely adversarial effort to enforce rights or a coordinated public-relations effort to force funding—Article III requires live cases and controversies. Our Constitution has something to say about indigent defendants languishing indefinitely in jail without representation, but that is not this case—at least not any more. Since this appeal was filed, Louisiana lawmakers have reallocated funding for appointed counsel sufficient to render the waitlists for non-capital defendants nonexistent. That fiscal action moots this legal action. As courts cannot redress what they cannot address, we DISMISS.
26 The Louisiana State Public Defender contends that fiscal shortfalls persist, even if waitlists for non-capital defendants do not: “The chronic underfunding of indigent defense continues, and LPDB is unable to fund all aspects of indigent defense with the resources allocated by the Louisiana Legislature.”
27 Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 71 (2013).
9

 
 APPEAL,CLOSED
U.S. District Court Middle District of Louisiana (Baton Rouge) CIVIL DOCKET FOR CASE #: 3:16−cv−00031−JJB−RLB

Yarls et al v. Bunton et al Assigned to: Judge James J. Brady Referred to: Magistrate Judge Richard L. Bourgeois, Jr Case in other court: 5th Circuit, 17−30779 Cause: 28:1331 Fed. Question: Civil Rights Violation
Plaintiff

Date Filed: 01/14/2016 Date Terminated: 01/31/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Darwin Yarls, Jr. On Behalf of Themselves and All Others Similarly Situated

represented by Brandon J. Buskey American Civil Liberties Union Foundation 125 Broad street, 18th Floor New York, NY 10004 212−284−7364 Fax: 212−549−2654 Email: bbuskey@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Bruce Warfield Hamilton ACLU of Louisiana PO Box 56157 New Orleans, LA 70156 504−522−0617 Email: bhamilton@laaclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anna Lellelid Law Office of Anna Lellelid, LLC 2415 Bienville Street New Orleans, LA 70119 (504) 224−9670 Email: alellelid.law@gmail.com ATTORNEY TO BE NOTICED

Emily Faye Ratner 316 S. Dorgenois St. New Orleans, LA 70119 (504) 822−4455 Email: msemilyfaye@gmail.com TERMINATED: 08/17/2016 ATTORNEY TO BE NOTICED

Ezekiel Edwards American Civil Liberties Union Foundation 125 Broad street, 18th Floor New York, NY 10004 212−549−2610 Fax: 212−549−2654 Email: eedwards@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Justin Paul Harrison ACLU Foundation of Louisiana P.O. Box 56157

Plaintiff
Leroy Shaw, Jr. On Behalf of Themselves and All Others Similarly Situated

New Orleans, LA 70156 504−522−0628 Email: harrison.justin.p@gmail.com TERMINATED: 11/04/2016 ATTORNEY TO BE NOTICED
William Patrick Quigley Loyola Law School 7214 St. Charles Ave. Box 902 New Orleans, LA 70118 504−861−5591 Fax: 504−861−5440 Email: duprestars@yahoo.com ATTORNEY TO BE NOTICED
Candice C. Sirmon 2723 DAbadie Street New Orleans, LA 70119 917−699−5405 Email: candice.sirmon@gmail.com TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED
represented by Brandon J. Buskey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Lellelid (See above for address) ATTORNEY TO BE NOTICED
Emily Faye Ratner (See above for address) TERMINATED: 08/17/2016 ATTORNEY TO BE NOTICED
Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Paul Harrison (See above for address) TERMINATED: 11/04/2016 ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
Candice C. Sirmon (See above for address) TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED

Plaintiff Douglas Brown On Behalf of Themselves and All Others Similarly Situated
V. Defendant Derwyn Bunton in his official capacity as Chief District Defender for Orleans Parish, Louisiana

represented by Brandon J. Buskey (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Bruce Warfield Hamilton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anna Lellelid (See above for address) ATTORNEY TO BE NOTICED
Emily Faye Ratner (See above for address) TERMINATED: 08/17/2016 ATTORNEY TO BE NOTICED
Ezekiel Edwards (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin Paul Harrison (See above for address) TERMINATED: 11/04/2016 ATTORNEY TO BE NOTICED
William Patrick Quigley (See above for address) ATTORNEY TO BE NOTICED
Candice C. Sirmon (See above for address) TERMINATED: 08/24/2016 ATTORNEY TO BE NOTICED
represented by Mark Christopher Surprenant Adams & Reese − N.O. 701 Poydras Street Suite 4500 New Orleans, LA 70139 504−581−3234 Fax: 504−566−0210 Email: mark.surprenant@arlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Emily Barriere Adams and Reese LLP 701 Poydras street New Orleans, LA 70139 (504) 585−0308 Fax: 504−566−0210 Email: jennifer.barriere@arlaw.com TERMINATED: 01/05/2017 ATTORNEY TO BE NOTICED

Defendant
James T Dixon, Jr in his official capacity as Louisiana State Public Defender

Justin B. Schmidt Adams and Reese, LLP 701 Poydras Street 4500 New Orleans, LA 70139 504−585−0361 Fax: 504−584−9534 Email: justin.schmidt@arlaw.com ATTORNEY TO BE NOTICED
represented by John M. Landis Stone, Pigman, Walther, Wittmann, LLC − N.O. 546 Carondelet Street New Orleans, LA 70130 504−581−3200 Fax: 504−596−0819 Email: jlandis@stonepigman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maggie A. Broussard Stone, Pigman, Walther, Wittmann, LLC − N.O. 909 Poydras Street Suite 3150 New Orleans, LA 70112 504−581−3200 Fax: 504−581−3361 Email: mbroussard@stonepigman.com ATTORNEY TO BE NOTICED

Date Filed 01/14/2016
01/14/2016 01/14/2016 01/15/2016 01/19/2016 01/19/2016

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number 053N−1348115.), filed by Darwin Yarls, Jr, Douglas Brown, Leroy Shaw, Jr. (Attachments: # 1 Attachment Civil Cover Sheet, # 2 Exhibit List Index of Exhibits, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit Exhibit 4, # 7 Exhibit Exhibit 5, # 8 Exhibit Exhibit 6, # 9 Exhibit Exhibit 7, # 10 Exhibit Exhibit 8, # 11 Exhibit Exhibit 9, # 12 Exhibit Exhibit 10, # 13 Exhibit Exhibit 11, # 14 Exhibit Exhibit 12, # 15 Exhibit Exhibit 13)(Sirmon, Candice) (Entered: 01/14/2016)
2 MOTION for Brandon J. Buskey to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−1348118) by All Plaintiffs. (Attachments: # 1 Affidavit of Brandon Buskey, # 2 Attachment Certificate of Good Standing, # 3 Attachment Proposed Order)(Sirmon, Candice) (Entered: 01/14/2016)
3 MOTION for Ezekiel R. Edwards to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−1348119) by All Plaintiffs. (Attachments: # 1 Affidavit of Ezekiel R. Edwards, # 2 Attachment Certificate of Good Standing, # 3 Attachment Proposed Order)(Sirmon, Candice) (Entered: 01/14/2016)
4 MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Memorandum in Support)(Sirmon, Candice) (Entered: 01/15/2016)
5 There is no record document 5 − Counsel was admitted (NLT) Modified on 1/19/2016 to edit the text and remove the attachment (NLT). (Entered: 01/19/2016)
MOTION(S) REFERRED: 3 MOTION for Ezekiel R. Edwards to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−1348119), 2 MOTION for Brandon J. Buskey to Appear Pro Hac Vice (Filing fee $100.00, Receipt Number 053N−1348118). This motion is now pending before the USMJ. (NLT) (Entered: 01/19/2016)

01/19/2016
01/22/2016 01/22/2016 02/01/2016 02/05/2016 03/01/2016 03/04/2016 03/04/2016 03/07/2016 03/08/2016 03/14/2016
03/15/2016 03/16/2016 03/17/2016 03/24/2016
04/01/2016

6 NOTICE on 4 MOTION to Certify Class :. Opposition, limited to 10 pages, to the motion shall be filed on or before 02/09/16. The mover may file a reply brief, limited to 5 pages, within 14 days of the filing of the opposition.(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (MJ) (Entered: 01/19/2016)
7 ORDER granting 2 Motion for Brandon J. Buskey to Appear Pro Hac Vice on behalf of Plaintiffs. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/22/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 01/22/2016)
8 ORDER granting 3 Motion for Ezekiel Edwards to Appear Pro Hac Vice on behalf of Plaintiffs. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/22/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 01/22/2016)
9 NOTICE AND ORDER: The 6 Briefing Scheduling be VACATED and the 4 Motion to Certify Class be DISMISSED from the Courts docket without prejudice to being re−filed at a later date. Signed by Judge James J. Brady on 2/1/2016. (LLH) Modified on 2/1/2016 to edit text (LLH). (Entered: 02/01/2016)
10 SCHEDULING CONFERENCE ORDER: Scheduling Conference set for 3/29/2016 at 09:30 AM in chambers before Magistrate Judge Richard L. Bourgeois Jr. Status Report due by 3/15/2016. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/5/2016. (JSL) (Entered: 02/05/2016)
11 ANSWER to 1 Complaint,, by James T Dixon, Jr.(Landis, John) (Entered: 03/01/2016)
12 WAIVER OF SERVICE Returned Executed by Darwin Yarls, Jr, Douglas Brown, Leroy Shaw, Jr. Derwyn Bunton waiver sent on 1/15/2016, answer due 3/15/2016. (Sirmon, Candice) (Entered: 03/04/2016)
13 WAIVER OF SERVICE Returned Executed by Darwin Yarls, Jr, Douglas Brown, Leroy Shaw, Jr. James T Dixon, Jr waiver sent on 1/15/2016, answer due 3/15/2016. (Sirmon, Candice) (Entered: 03/04/2016)
14 Uncontested MOTION to Extend Status Report Deadline and scheduling conference by All Plaintiffs. (Sirmon, Candice) Modified on 3/8/2016 to edit text (LLH). Modified on 3/14/2016 to edit event (LLH). (Entered: 03/07/2016)
MOTION(S) REFERRED: 14 Unopposed MOTION for Extension of Time to hold FRCP 26(f) scheduling conference, file Status Report and Scheduling Conference. This motion is now pending before the USMJ. (LLH) (Entered: 03/08/2016)
15 ORDER granting 14 Uncontested Motion to Extend Status Report Deadline and Scheduling Conference. The Scheduling Conference set for 3/29/2016 is RESET for 4/21/2016 at 10:45 AM in chambers before Magistrate Judge Richard L. Bourgeois Jr.. The Joint Status Report due by 4/7/2016. The parties shall hold their FRCP 26(f) scheduling conference no later than 3/31/2016. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 3/14/2016. (LLH) Modified on 3/17/2016 to edit text (LLH). (Entered: 03/14/2016)
16 ANSWER to 1 Complaint,, by Derwyn Bunton.(Surprenant, Mark) (Entered: 03/15/2016)
17 MOTION to Enroll Jennifer E. Barriere as Additional Attorney by Derwyn Bunton. (Attachments: # 1 Proposed Pleading; Order)(Surprenant, Mark) (Entered: 03/16/2016)
MOTION(S) REFERRED: 17 MOTION to Enroll Jennifer E. Barriere as Additional Attorney . This motion is now pending before the USMJ. (LLH) (Entered: 03/17/2016)
18 ORDER granting 17 Motion to Enroll Additional Attorney. Added attorney Jennifer Emily Barriere as additional counsel of record for Derwyn Bunton. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 3/24/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 03/24/2016)
19 Joint MOTION to Extend Status Report Deadline and Scheduling Conference by All Plaintiffs. (Sirmon, Candice) Modified to edit text on 4/4/2016 (BLR). (Entered:

04/04/2016 04/06/2016
05/05/2016 05/05/2016 05/17/2016
05/17/2016 05/19/2016 05/27/2016
06/02/2016 06/02/2016 06/06/2016
06/15/2016 06/15/2016 06/15/2016

04/01/2016)
MOTION(S) REFERRED: 19 Joint MOTION to Extend Status Report Deadline and Scheduling Conference. This motion is now pending before the USMJ. (BLR) (Entered: 04/04/2016)
20 ORDER: The scheduling conference set for April 21, 2016 is hereby RESET before United States Magistrate Judge Richard L. Bourgeois, Jr. for May 19, 2016 at 3:00 p.m. The deadline for filing the joint status report is reset to May 5, 2016. All other orders and instructions in this Courts Orders (R. Docs. 10 and 15) and attachments thereto shall continue to apply. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 4/6/2016. (BLR) (Entered: 04/06/2016)
21 Third MOTION for Extension of Time to File Joint Status Report by All Plaintiffs. (Buskey, Brandon) (Entered: 05/05/2016)
MOTION(S) REFERRED: 21 Third MOTION for Extension of Time to File Joint Status Report. This motion is now pending before the USMJ. (EDC) (Entered: 05/05/2016)
22 ORDER granting 21 Joint Motion to Extend Status Report Deadline and Scheduling Conference. The scheduling conference set for May 19, 2016 is hereby RESET before United States Magistrate Judge Richard L. Bourgeois, Jr. for June 2, 2016 at 10:30 a.m. The deadline for filing the joint status report isreset to May 19, 2016. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 5/17/2016. (JSL) (Entered: 05/17/2016)
Set/Reset Deadlines/Hearings: Scheduling Conference reset for 6/2/2016 at 10:30 AM in chambers before Magistrate Judge Richard L. Bourgeois Jr. Status Report deadline reset to 5/19/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry) (JSL) (Entered: 05/17/2016)
23 STATUS REPORT by All Plaintiffs. (Sirmon, Candice) (Entered: 05/19/2016)
24 SCHEDULING ORDER: The Scheduling Conference set for 6/2/2016 is CANCELLED. In accordance with FRCP 16(b), the following discovery deadlines are established. Amended Pleadings due by 6/21/2016. Discovery due by 8/19/2016. Defendant`s Expert Witness List due by 8/23/2016. Defendant`s Expert Reports due by 9/23/2016. Discovery from Experts due by 10/24/2016. Dispositive and Daubert Motions shall be filed by 11/14/2016. Proposed Pretrial Order due by 3/27/2017. Pretrial Conference set for 4/27/2017 at 02:00 PM in chambers before Judge James J. Brady. Motions In Limine shall be filed by 4/28/2017. Affidavit of Settlement Efforts due by 5/19/2017. Joint jury instructions, voir dire, verdict forms, and trial briefs due by 7/7/2017. Bench Trial set for 7/24/2017 − 7/26/2017 at 09:00 AM in Courtroom 1 before Judge James J. Brady. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 5/27/2016. (LLH) (Entered: 05/27/2016)
25 MOTION to Enroll Justin B. Schmidt as Additional Attorney by Derwyn Bunton. (Attachments: # 1 Proposed Pleading; Order)(Surprenant, Mark) (Entered: 06/02/2016)
MOTION(S) REFERRED: 25 MOTION to Enroll Justin B. Schmidt as Additional Attorney . This motion is now pending before the USMJ. (EDC) (Entered: 06/02/2016)
26 ORDER granting 25 Motion to Enroll Additional Attorney. Added attorney Justin B. Schmidt as additional counsel of record for Defendant Derwyn Bunton. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 6/6/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 06/06/2016)
27 AMENDED COMPLAINT against All Defendants, filed by Darwin Yarls, Jr, Douglas Brown, Leroy Shaw, Jr.(Buskey, Brandon) (Entered: 06/15/2016)
28 Renewed and Unopposed Motion for Class Certification by All Plaintiffs. (Buskey, Brandon) Modified on 6/23/2016 to edit text. (EDC). (Entered: 06/15/2016)
29 Joint MOTION for Judgment Granting Final Declaratory and partial Injunctive Relief by All Plaintiffs. (Buskey, Brandon) Modified on 6/16/2016 (ELW). Added MOTION for Partial Injunctive Relief on 6/16/2016 (ELW). (Entered: 06/15/2016)

06/16/2016 06/16/2016 06/17/2016
07/01/2016
07/14/2016
08/12/2016 08/15/2016 08/15/2016 08/16/2016 08/17/2016 08/17/2016 08/17/2016 08/17/2016 08/18/2016 08/18/2016

30 Certificate of Service to the AMENDED COMPLAINT against All Defendants, filed by Darwin Yarls, Jr, Douglas Brown, Leroy Shaw, Jr.(Buskey, Brandon) Modified on 6/16/2016 to correct text.(EDC). (Entered: 06/16/2016)
32 Minute Entry/Notice to Counsel for proceedings held before Judge James J. Brady: Telephone Status Conference held on 6/16/2016. The court instructed the parties to submit briefs on or before 5:00 p.m. on 7/1/2016. (SGO) (Entered: 06/17/2016)
31 ORDER: Considering the 28 Renewed and Unopposed Motion for Class Certification and 29 Joint MOTION for Judgment Granting Final Declaratory and partial Injunctive Relief, the parties will provide supplemental memoranda by 5:00 PM on 7/1/2016. Signed by Judge James J. Brady on 06/16/2016. (ELW) Modified on 6/24/2016 (NLT). (Entered: 06/17/2016)
33 Plaintiffs' Supplemental MEMORANDUM in Support of 28 Consent MOTION to Certify Class 29 Consent MOTION for Settlement filed by All Plaintiffs. (Attachments: # 1 Exhibit A − State v. Bernard District Court Ruling, # 2 Exhibit B − State v. Bernard La. App. 4 Cir.)(Sirmon, Candice) Modified on 7/5/2016 to edit the text (TNB). (Entered: 07/01/2016)
34 ORDER: The plaintiffs shall amend the complaint to fully allege the scope of relief requested and add all necessary parties to obtain such relief. Thereafter, the plaintiffs may file a properly supported motion for class certification. This matter is referred to the Magistrate Judge for purposes of entering a Scheduling Order. The 29 Motion for Settlement is TERMINATED from the Court's dockets, reserving the right to refile following class certification. Signed by Judge James J. Brady on 7/14/2016. (LLH) (Entered: 07/14/2016)
35 Unopposed MOTION File Second Amended Class Action Complaint by All Plaintiffs. (Attachments: # 1 Proposed Pleading;)(Sirmon, Candice) Modified on 8/18/2016 to edit text (LLH). (Entered: 08/12/2016)
36 MOTION for Emily Faye Ratner to Withdraw as Attorney by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Proposed Order)(Ratner, Emily) (Entered: 08/15/2016)
37 Amended MOTION for Emily Faye Ratner to Withdraw as Attorney Corrected Motion to Withdraw by All Plaintiffs. (Attachments: # 1 Proposed Pleading; Proposed Order)(Ratner, Emily) (Entered: 08/15/2016)
38 MOTION to Substitute Justin P. Harrison in place of Candice C. Sirmon as Attorney by All Plaintiffs. (Sirmon, Candice) (Entered: 08/16/2016)
39 ORDER granting 35 Motion to Amend. The Second Amended Class Action Complaint [R. Doc. 35−1] shall be filed. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/17/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Bourgeois, Richard) (Entered: 08/17/2016)
40 ORDER granting 37 Motion to Withdraw as Attorney. Attorney Emily Faye Ratner is withdrawn. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/17/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Bourgeois, Richard) (Entered: 08/17/2016)
41 ORDER finding as moot 36 Motion to Withdraw as Attorney. The requested relief has been granted. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/17/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (Bourgeois, Richard) (Entered: 08/17/2016)
43 Second AMENDED Class Action COMPLAINT against Derwyn Bunton, James T Dixon, Jr, filed by Darwin Yarls, Jr., Douglas Brown, Leroy Shaw, Jr.(SGO) (Entered: 08/22/2016)
MOTION(S) REFERRED: 38 MOTION to Substitute Justin P. Harrison in place of Candice C. Sirmon as Attorney . This motion is now pending before the USMJ. (NLT) (Entered: 08/18/2016)
42 ORDER: In accordance with District Judge Bradys referral of this matter for purposes of entering a Scheduling Order consistent with the district courts July 14, 2016 Order (R. Doc. 34), IT IS ORDERED that on or before 9/2/2016 parties to file status report

08/24/2016 08/25/2016 08/30/2016 08/31/2016 09/08/2016 09/09/2016
09/12/2016 09/15/2016
09/15/2016
10/27/2016

as directed in this order. Telephone Scheduling Conference set for 9/9/2016 at 10:30 AM (CST) before Magistrate Judge Richard L. Bourgeois Jr. Plaintiffs' counsel to initiate the conference call to chambers at (225)389−3602. Upon filing of the status report, the undersigned will review it & determine whether the conference remains necessary or if a modified order should be issued. Unless the parties are notified otherwise, the conference will be held as scheduled. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/18/2016. (JSL) (Entered: 08/18/2016)
44 ORDER granting 38 Motion to Substitute Attorney. Justin Paul Harrison substituted as counsel for Plaintiffs in this matter replacing Candice C. Sirmon. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 8/24/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 08/24/2016)
45 ANSWER to 43 Second Amended Class Action Complaint by James T Dixon, Jr.(Landis, John) Modified on 8/25/2016 to edit text. (EDC). (Entered: 08/25/2016)
46 Second STATUS REPORT by All Plaintiffs. (Buskey, Brandon) (Entered: 08/30/2016)
47 ANSWER to 43 Amended Complaint by Derwyn Bunton.(Surprenant, Mark) (Entered: 08/31/2016)
48 Notice to Counsel: Telephone Scheduling Conference set for 9/9/2016 at 10:30 AM (CST) before Magistrate Judge Richard L. Bourgeois Jr. is CANCELLED. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 09/08/2016)
49 SCHEDULING ORDER: In accordance with FRCP 16(b), the following deadlines are established. Plaintiffs motion for class certification: September 12, 2016; Plaintiffs motion for a declaratory order on stipulated liability: 14 days after class certification; Plaintiffs move for appropriate relief: 21 days after class certification; Defendants respond to Plaintiffs motion for relief: 21 days after Plaintiffs motion; Plaintiffs Reply, if any: 14 days after Defendants response. Any hearings or argument, if necessary, will be set by the district judge. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 9/9/2016. (JSL) (Entered: 09/09/2016)
50 Unopposed MOTION to Certify Class by All Plaintiffs. (Attachments: # 1 Memorandum in Support Class Certification)(Buskey, Brandon) (Entered: 09/12/2016)
51 Notice to Counsel:
Evidence, in electronic format, shall be provided in accordance with Local Rule 79 and Administrative Procedures.
(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) Status Conference set for 10/6/2016 at 02:30 PM in chambers before Judge James J. Brady. (SWE) (Entered: 09/15/2016)
52 Notice to Counsel:
Evidence, in electronic format, shall be provided in accordance with Local Rule 79 and Administrative Procedures.
(This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) At the request of plaintiffs' counsel, Status Conference is re−set for 11/3/2016 at 01:30 PM in chambers before Judge James J. Brady. (SWE) (Entered: 09/15/2016)
53 NOTICE AND ORDER: The Court sua sponte raises the issue of whether it has subject matter jurisdiction under Article III of the United States Constitution. Plaintiffs shall submit a brief not to exceed 20 pages addressing the stated issues by 11/9/2016. The Defendants must submit a response not to exceed 20 pages by 11/23/2016. If, after reviewing the briefs, the Court is not convinced that it has jurisdiction, this case will be dismissed. Signed by Judge James J. Brady on 10/27/2016. (LLH) Modified on 10/28/2016 (NLT). (Entered: 10/27/2016)

11/03/2016 11/04/2016 11/04/2016 11/04/2016
11/09/2016 11/22/2016 11/23/2016 12/27/2016 01/03/2017
01/05/2017 01/05/2017
01/31/2017
01/31/2017 02/27/2017 08/23/2017

54 MOTION to Substitute Bruce W. Hamilton in place of Justin P. Harrison as Attorney by All Plaintiffs. (Harrison, Justin) (Entered: 11/03/2016)
Terminate Hearings (SWE) (Entered: 11/04/2016)
MOTION(S) REFERRED: 54 MOTION to Substitute Bruce W. Hamilton in place of Justin P. Harrison as Attorney . This motion is now pending before the USMJ. (EDC) (Entered: 11/04/2016)
55 ORDER granting 54 Motion to Substitute Attorney. Bruce Warfield Hamilton substituted as counsel for Douglas Brown, Leroy Shaw, Jr. & Darwin Yarls, Jr. replacing Justin P. Harrison. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 11/4/2016. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 11/04/2016)
56 Jurisdictional Memorandum (Attachments: # 1 Exhibit 1)(Buskey, Brandon) Modified on 11/10/2016 to edit text. (EDC). (Entered: 11/09/2016)
57 Jurisdictional Memorandum to 53 Order filed by Derwyn Bunton. (Surprenant, Mark) Modified on 11/23/2016 to edit text. (EDC). (Entered: 11/22/2016)
58 Jurisdictional Memorandum to 53 Order filed by James T Dixon, Jr. (Landis, John) Modified on 11/23/2016 to edit text. (EDC). (Entered: 11/23/2016)
59 MOTION for Jennifer E. Barriere to Withdraw as Attorney by Derwyn Bunton. (Attachments: # 1 Proposed Pleading; Proposed Order)(Surprenant, Mark) Modified on 1/6/2017 to replace document as per Order #61 (LLH). (Entered: 12/27/2016)
60 MOTION to Substitute Rec. Doc 59, Motion to Withdraw Jennifer E. Barriere as Counsel of Record by Derwyn Bunton. (Attachments: # 1 Proposed Pleading; Proposed Order, # 2 Proposed Pleading; Motion to Withdraw Jennifer E. Barriere as Counsel of Record, # 3 Proposed Pleading; Proposed Order)(Surprenant, Mark) (Entered: 01/03/2017)
MOTION(S) REFERRED: 60 MOTION to Substitute Rec. Doc 59, Motion to Withdraw Jennifer E. Barriere as Counsel of Record . This motion is now pending before the USMJ. (ELW) (Entered: 01/05/2017)
61 ORDER granting 60 Motion to Substitute Pleading. The previously filed Motion to Withdraw Jennifer E. Barriere as Counsel of Record (R. Doc. 59) shall be substituted with the Motion to Withdraw Jennifer E. Barriere as Counsel of Record submitted by Defendant Derwyn Bunton, in his official capacity as Chief District Defender for Orleans Parish filed on January 3, 2017 (R. Doc. 60−2). ORDER granting 59 Motion to Withdraw as Attorney, as substituted. Attorney Jennifer E. Barriere, formerly of the law firm Adams and Reese, LLP, is withdrawn as counsel of record for Derwyn Bunton, in his official capacity as Chief District Defender for Orleans Parish. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 1/5/2017. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (JSL) (Entered: 01/05/2017)
62 RULING : The concerns that this Court has with the case touch upon fundamental issues about the nature of its judicial power and, even more fundamentally, about its role in relation to state criminal courts. Ultimately, and after reviewing all of the briefing in this case, this Court finds that this case will be dismissed as a matter of federalism and comity. Signed by Judge James J. Brady on 01/31/2017. (ELW) (Entered: 01/31/2017)
63 ORDER: For the written reasons assigned this case is hereby DISMISSED. Signed by Judge James J. Brady on 01/31/2017. (ELW) (Entered: 01/31/2017)
64 MOTION for Relief from Judgment by All Plaintiffs. (Attachments: # 1 Memorandum in Support Motion for Reconsideration, # 2 Exhibit 1)(Buskey, Brandon) Modified to edit text on 2/28/2017 (SGO). (Entered: 02/27/2017)
65 RULING : The Court finds that it did not commit a manifest error of law in dismissing this case. The Motion for Relief from Judgment 64 is DENIED. Signed by Judge James J. Brady on 08/23/2017. (ELW) (Entered: 08/24/2017)

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10/17/2017
11/08/2017
12/06/2017
12/12/2017

66 NOTICE OF APPEAL to the USCA for the 5th Circuit of 65 Order on Motion for Reconsideration by Douglas Brown, Leroy Shaw, Jr, Darwin Yarls, Jr. Filing fee $ 505, receipt number 053N−1643816. (Hamilton, Bruce) (Entered: 09/25/2017)
67 USCA Case Number 17−30779 for 66 Notice of Appeal to the USCA for the 5th Circuit filed by Darwin Yarls, Jr., Douglas Brown, Leroy Shaw, Jr. (TMR) (Entered: 10/02/2017)
Record on Appeal #17−30779 Electronically Certified regarding 66 Notice of Appeal to the USCA for the 5th Circuit. US Court of Appeals notified of certification. (TMR) (Entered: 10/05/2017)
68 Electronic Access to the Record on Appeal is now available through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 10/05/2017)
69 Electronic Access to the Record on Appeal is now available to Mark Christopher Surprenant through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 10/11/2017)
70 Electronic Access to the Record on Appeal is now available to Brandon Buskey through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 10/17/2017)
71 Electronic Access to the Record on Appeal is now available to John M. Landis through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (KAH) (Entered: 11/08/2017)
72 Electronic Access to the Record on Appeal is now available to Bruce Hamilton through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 12/06/2017)
73 Electronic Access to the Record on Appeal is now available to Sara C. Valentine through the Court of Appeals CM/ECF document filing system. Instructions for accessing the record can be found at www.ca5.uscourts.gov/attorneys/attorney−forms/eroa_downloads. Request for paper exhibits in addition to the record on appeal and shipping information should be faxed to the clerks office at 225−389−3501. The clerk of court will retain the responsibility

02/06/2018

of sending the record to the 5th Circuit upon their request. (This is a TEXT ENTRY ONLY. There is no hyperlink or PDF document associated with this entry.) (TMR) (Entered: 12/12/2017)
74 Transmitted Record on Appeal #17−30779 to US Court of Appeals regarding 66 Notice of Appeal to the USCA for the 5th Circuit. (KAH) (Entered: 02/06/2018)