Case: 2:13-cv-732 As of: 01/18/2019 10:59 AM CST 1 of 8
CLOSED,JOINT_ASSIGN,LEAD
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:13−cv−00732−MHT−TFM

Cleveland v. City of Montgomery et al (LEAD)(JOINT ASSIGN) Assigned to: Honorable Judge Myron H. Thompson Referred to: Honorable Judge Terry F. Moorer
Case in other court: CC of Montgomery County, AL, 03−CV−13−901494.00
Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 10/04/2013 Date Terminated: 11/17/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Harriet Delores Cleveland

represented by David Carter Dinielli Southern Poverty Law Center 400 Washington Ave Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: david.dinielli@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Michelle Zampierin Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: sara.zampierin@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel Jacob Brooke Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 334−956−8200 Fax: 334−956−8481 Email: samuel.brooke@splcenter.org ATTORNEY TO BE NOTICED

V. Consol Plaintiff Markis Antwuan Watts

represented by David Carter Dinielli (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Michelle Zampierin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel Jacob Brooke (See above for address) ATTORNEY TO BE NOTICED

V.

Case: 2:13-cv-732 As of: 01/18/2019 10:59 AM CST 2 of 8

Defendant City of Montgomery

represented by Jason Cole Paulk Office of the Governor Alabama State Capitol 600 Dexter Avenue, Room NB−05 Montgomery, AL 36130 334−242−7120 Fax: 334−242−2335 Email: jason.paulk@governor.alabama.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert David Segall Copeland Franco Screws & Gill PO Box 347 Montgomery, AL 36101−0347 334−834−1180 Fax: 334−834−3172 Email: segall@copelandfranco.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Lynn Holliday Copeland Franco Screws & Gill, PA PO Box 347 Montgomery, AL 36101−0347 334−834−1180 Fax: 334−834−3172 Email: holliday@copelandfranco.com ATTORNEY TO BE NOTICED

Defendant
Milton J. Westry The Honorable

represented by Jason Cole Paulk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert David Segall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shannon Lynn Holliday (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Consol Defendant
Les Hayes, III The Honorable

represented by Jason Cole Paulk (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert David Segall (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon Lynn Holliday (See above for address)

Case: 2:13-cv-732 As of: 01/18/2019 10:59 AM CST 3 of 8
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/04/2013
10/04/2013 10/04/2013 10/04/2013 10/17/2013
10/18/2013 10/18/2013 10/18/2013 10/18/2013 10/18/2013 10/18/2013 10/28/2013
10/31/2013 11/12/2013 11/12/2013

# Docket Text
1 NOTICE OF REMOVAL by City of Montgomery, Milton J. Westry from Circuit Court of Montgomery County, AL, case number CV−2013−901494. ( Filing fee $ 400.00 receipt number 4602028588) (Attachments: # 1 state court emergency petition for writ of certiorari or in the alternative writ of mandamus, # 2 amended petition for declaratory relief, writ of certiorari or in the alternative writ of mandamus, # 3 Exhibit A, # 4 Exhibit B, # 5 fee receipt)(djy, ) (Entered: 10/09/2013)
EMERGENCY PETITION for Writ of certiorari, or in the alternative for Writ of Mandamus by Harriet Delores Cleveland. (NO PDF Document attached to this notice−See Docket Entry 1 ). (djy, ) (Entered: 10/09/2013)
AMENDED PETITION for Declaratory relief, Writ of certiorari, or in the alternative for Writ of Mandamus by Harriet Delores Cleveland. (NO PDF Document attached to this notice−See Docket Entry 1 ).(djy, ) . (Entered: 10/09/2013)
NOTICE to state court by City of Montgomery, Milton J. Westry re filing of 1 Notice of Removal (NO PDF Document attached to this notice−See Docket Entry 1 ). (djy, ) (Entered: 10/09/2013)
2 ANSWER to Amended Petition for declaratory relief, writ of certiorari, or in the alternative, writ of mandamus by City of Montgomery, Milton J. Westry.(Paulk, Jason) Modified on 10/18/2013 to clarify text to reflect as shown on main PDF document (qc/djy, ). (Entered: 10/17/2013)
NOTICE of Assignment to Magistrate Judge mailed to counsel for City of Montgomery, Harriet Delores Cleveland, Milton J. Westry (NO PDF Document attached to this notice). (djy, ) (Entered: 10/18/2013)
3 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to City of Montgomery; Corporate Disclosures due by 10/28/2013. (Attachments: # 1 standing order & format)(djy, ) (Entered: 10/18/2013)
4 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Harriet Delores Cleveland; Corporate Disclosures due by 10/28/2013. (Attachments: # 1 standing order & format)(djy, ) (Entered: 10/18/2013)
5 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement sent to Milton J. Westry; Corporate Disclosures due by 10/28/2013. (Attachments: # 1 standing order & format)(djy, ) (Entered: 10/18/2013)
6 Corporate/Conflict Disclosure Statement by City of Montgomery re 3 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Paulk, Jason) (Entered: 10/18/2013)
7 Corporate/Conflict Disclosure Statement by Milton J. Westry re 5 Notice of Deficiency requiring filing of Corporate Disclosure/Conflict Statement. (Paulk, Jason) (Entered: 10/18/2013)
8 MOTION to Consolidate Cases by Harriet Delores Cleveland. (Attachments: # 1 Text of Proposed Order Proposed Order to Motion to Consolidate)(Zampierin, Sara) (Additional attachment(s) added on 10/30/2013 to add corrected certificate of service: # 2 corrected certificate of service) (qc/djy, ). (Entered: 10/28/2013)
9 Case reassigned to Honorable Judge Mark E. Fuller and Honorable Judge Terry F. Moorer. Honorable Judge Terry F. Moorer no longer assigned to the case as presiding judge. (djy, ) (Entered: 10/31/2013)
10 AMENDED COMPLAINT against All Defendants, filed by Harriet Delores Cleveland. (Attachments: # 1 Exhibit Letter from District Attorney, # 2 Exhibit Transcript)(Zampierin, Sara) (Entered: 11/12/2013)
11 Corporate/Conflict Disclosure Statement by Harriet Delores Cleveland. (Zampierin, Sara) Modified on 11/13/2013 to clarify text to reflect as satisfying 4 notice of

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11/13/2013 11/14/2013
11/18/2013 11/22/2013 11/25/2013 12/03/2013 12/17/2013 12/23/2013
01/27/2014 02/05/2014 03/14/2014 03/19/2014
04/28/2014
04/28/2014

deficiency (qc/djy, ). (Entered: 11/12/2013)
12 Corporate/Conflict Disclosure Statement by Harriet Delores Cleveland. (Zampierin, Sara) (Entered: 11/13/2013)
13 ORDER GRANTING 8 MOTION to Consolidate; the referenced cases are consolidated for further proceedings; Case No. 2:13−cv−732−MEF shall be the lead case, and the clerk is directed to docket this order in the referenced cases; all future pleadings and motions shall be filed only in the lead case.. Signed by Honorable Judge Mark E. Fuller on 11/14/13. (djy, ) (Entered: 11/14/2013)
14 ORDER directing that a status conference is set for Friday, November 22, 2013, at 11:00 A.M. by conference call arranged by counsel for the plaintiff. Signed by Honorable Judge Mark E. Fuller on 11/18/13. (Furnished to Calendar/WR)(scn, ) (Entered: 11/18/2013)
Minute Entry for proceedings held before Honorable Judge Mark E. Fuller: Status Conference held on 11/22/2013 (NO PDF ATTACHED). (war, ) (Entered: 12/02/2013)
15 ANSWER to 10 Amended Complaint by City of Montgomery, Les Hayes, III, Milton J. Westry.(Paulk, Jason) (Entered: 11/25/2013)
16 ORDER directing that the Rule 26(f) report containing the discovery plan shall be filed as soon as practicable, as further set out in order Rule 26 Meeting Report due by 12/30/2013. Signed by Honorable Judge Mark E. Fuller on 12/3/13. (djy, ) (Entered: 12/03/2013)
17 REPORT of Rule 26(f) Planning Meeting. (Zampierin, Sara) (Entered: 12/17/2013)
18 UNIFORM SCHEDULING ORDER setting: Final Pretrial Conference for 10/02/2014 in the Chambers of United States District Judge Mark E. Fuller, United States Courthouse, One Church Street, A−300, Montgomery, Alabama; Non−Jury Trial for 11/03/2014 in Montgomery, Alabama; Amended Pleadings due by 02/03/2014; Discovery due by 06/20/2014; Dispositive Motions due by 06/02/2014; Mediation Notice due by 06/28/2014, as further set out. Signed by Honorable Judge Mark E. Fuller on 12/23/13. (Furnished to Calendar/WR)(scn, ) (Entered: 12/23/2013)
19 Motion for David Carter Dinielli to Appear Pro Hac Vice ( Filing fee $ 50.00 receipt number 4602029716.) by Harriet Delores Cleveland, Markis Antwuan Watts. (Attachments: # 1 Exhibit A−certificate of good standing, # 2 Text of Proposed Order, # 3 fee receipt)(djy, ) (Entered: 01/31/2014)
20 ORDER granting 19 Motion for David Carter Dinielli Leave to Appear Pro Hac Vice. Signed by Honorable Judge Mark E. Fuller on 2/5/14. (djy, ) (Entered: 02/05/2014)
21 NOTICE of Appearance by Samuel J Brooke on behalf of Harriet Delores Cleveland, Markis Antwuan Watts (Brooke, Samuel) (Entered: 03/14/2014)
22 ORDER, upon consideration of Plf Cleveland's Emergency Petition For Writ of Certiorari, or in the Alternative, Writ of Mandamus 1 −1 and AmendedPetition for Declaratory Relief, Writ of Certiorari, or in the Alternative, Writ of Mandamus 1 −2, both filed in the Circuit Court of Montgomery County, Alabama, it is hereby ORDERED that the motions are DISMISSED with leave to re−file in this court. Signed by Honorable Judge Mark E. Fuller on 3/19/14. (djy, ) (Entered: 03/19/2014)
23 First MOTION to Compel to Defendant City of Montgomery by Harriet Delores Cleveland, Markis Antwuan Watts. (Attachments: # 1 Exhibit Plaintiffs' Memorandum in Support of Plaintiffs' First Motion to Compel Defendant City of Montgomery, # 2 Exhibit Brooke Declaration and Exhibits A to H, # 3 Text of Proposed Order Proposed Order)(Brooke, Samuel) (Entered: 04/28/2014)
BRIEF/MEMORANDUM in Support re 23 First MOTION to Compel to Defendant City of Montgomery filed by Harriet Delores Cleveland, Markis Antwuan Watts. (NO PDF document attached to this notice−see Exhibit 1 to Docket Entry 23 ). (djy, ) (Entered: 04/29/2014)

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04/30/2014 05/13/2014 05/13/2014 05/14/2014
05/15/2014 05/15/2014 05/16/2014
05/16/2014 05/22/2014 05/22/2014 05/27/2014 05/27/2014
05/28/2014 05/29/2014 06/04/2014

24 ORDER TO SHOW CAUSE by defendants' whether plf's 23 Motion to Compel is due to be granted; Show Cause Response due by 5/14/2014. Signed by Honorable Judge Terry F. Moorer on 4/30/14. (djy, ) (Entered: 04/30/2014)
25 NOTICE by Harriet Delores Cleveland, Markis Antwuan Watts re 23 First MOTION to Compel to Defendant City of Montgomery, 24 Order to Show Cause of Dismissal of First Motion to Compel to Defendant City of Montgomery (Zampierin, Sara) (Entered: 05/13/2014)
26 ORDER denying 23 Motion to Compel. Signed by Honorable Judge Terry F. Moorer on 5/13/14. (djy, ) (Entered: 05/13/2014)
27 MOTION To have limited participation in the June 30, 2014 hearing in Mitchell v. City of Montgomery and to suspend our Scheduling Order re 18 Scheduling Order,, by Harriet Delores Cleveland, Markis Antwuan Watts. (Attachments: # 1 Text of Proposed Order Granting Plaintiffs' Unopposed Motion for Limited Participation in June 30, 2014 Hearing in Mitchell v. City of Montgomery, No. 2:14−CV−00186 and Motion to Suspend Scheduling Order)(Zampierin, Sara) (Entered: 05/14/2014)
28 NOTICE of Appearance by Shannon Lynn Holliday on behalf of City of Montgomery (Holliday, Shannon) (Entered: 05/15/2014)
29 NOTICE of Appearance by Robert David Segall on behalf of City of Montgomery (Segall, Robert) (Entered: 05/15/2014)
30 ORDER TO SHOW CAUSE, in writing, as to why 27 MOTION To have limited participation in the June 30, 2014 hearing in Mitchell v. City of Montgomery (No. 2:14−cv−186) and to suspend our Scheduling Order re 18 Scheduling Order should not be granted; Show Cause Response due by 5/23/2014. Signed by Honorable Judge Mark E. Fuller on 5/16/14. (djy, ) (Entered: 05/16/2014)
31 RESPONSE to 30 order to show cause filed by City of Montgomery. (Holliday, Shannon) Modified on 5/19/2014 to clarify text to reflect as RESPONSE to 30 order (qc/djy, ). (Entered: 05/16/2014)
32 NOTICE of Appearance by Robert David Segall on behalf of Les Hayes, III, Milton J. Westry (Segall, Robert) (Entered: 05/22/2014)
33 NOTICE of Appearance by Shannon Lynn Holliday on behalf of Les Hayes, III, Milton J. Westry (Holliday, Shannon) (Entered: 05/22/2014)
34 Joint MOTION to Modify re 18 Scheduling Order,, JOINT MOTION TO MODIFY DISPOSITIVE MOTION DEADLINE by Harriet Delores Cleveland, Markis Antwuan Watts. (Attachments: # 1 Text of Proposed Order)(Brooke, Samuel) (Entered: 05/27/2014)
35 ORDER as follows: 1. Plaintiff's 27 Motion is GRANTED IN PART and DENIED IN PART. 2. Plaintiffs may participate at the 6/30/2014 hearing in Mitchell v. City of Montgomery, 2:14−cv−186, orally and through ancillary briefing, for the limited purpose of expressing their views on the legal sufficiency of the current or proposed plan the City is required to submit to the Court pursuant to the Preliminary Injunction Order in Mitchell. 3. The dispositive motions deadline (Section 2), face−to−face settlement conference deadline (Section 3), discovery deadline (Section 7), and the expert disclosure deadlines (Section 8) set forth in the 18 Uniform Scheduling Order are CONTINUED until 7/21/2014. Signed by Honorable Judge Mark E. Fuller on 5/27/2014. (dmn, ) (Entered: 05/27/2014)
36 TEXT ORDER denying the 34 Joint Motion to Modify Dispositive Motion Deadline as moot. Signed by Honorable Judge Mark E. Fuller on 5/28/2014. (dmn, ) (NO PDF attached) (Entered: 05/28/2014)
37 ORDER that a Status Conference is set for 6/5/2014 at 02:00 PM by conference call arranged by counsel for the defendant before Honorable Judge Mark E. Fuller. Signed by Honorable Judge Mark E. Fuller on 5/29/2014. Copies furnished to calendar group, WR.(dmn, ) (Entered: 05/29/2014)
38 MOTION for Protective Order (UNOPPOSED) by Harriet Delores Cleveland, Markis Antwuan Watts. (Attachments: # 1 Proposed Protective Order)(Brooke, Samuel) (Entered: 06/04/2014)

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06/04/2014 06/05/2014 06/05/2014 06/05/2014 06/10/2014 06/10/2014 06/11/2014
06/20/2014 06/23/2014 06/30/2014

39 MOTION for Leave to File Amend the Pleadings by Les Hayes, III, Milton J. Westry. (Attachments: # 1 Exhibit A, # 2 Exhibit Exhibit 1 to Exhibit A)(Holliday, Shannon) (Entered: 06/04/2014)
40 ORDER RESETTING the Status Conference set for 6/5/2014 @ 2:00 pm to 6/10/2014 @ 02:00 PM before Honorable Judge Mark E. Fuller, by conference call arranged by counsel for the defendant. Signed by Honorable Judge Mark E. Fuller on 6/5/14. Furnished to calender group & WR.(djy, ) (Entered: 06/05/2014)
41 ORDER TO SHOW CAUSE by the plaintiffs, in writing, as to why 39 Motion for Leave to amend the pleadings filed by Les Hayes, III, Milton J. Westry should not be granted; Show Cause Response due by 6/10/2014. Signed by Honorable Judge Mark E. Fuller on 6/5/14. (djy, ) (Entered: 06/05/2014)
42 ORDER GRANTING 38 MOTION for PROTECTIVE ORDER regarding Confidential information, as further set out in order. Signed by Honorable Judge Terry F. Moorer on 6/5/14. (djy, ) (Entered: 06/05/2014)
43 RESPONSE in Opposition re 39 MOTION for Leave to File Amend the Pleadings filed by Harriet Delores Cleveland, Markis Antwuan Watts. (Attachments: # 1 Brooke Declaration in Support and Exhibits A to E)(Brooke, Samuel) (Entered: 06/10/2014)
Minute Entry for proceedings held before Honorable Judge Mark E. Fuller: Status Conference held by telephone on 6/10/2014 (NO PDF attached). (war, ) (Entered: 06/10/2014)
44 COPY OF ORDER entered in Civil Action No. 2:14−cv−186−MEF: On 6/10/2014, a telephone status conference was held addressing the Court's 18 Preliminary Injunction Order. Counsel for the parties in the above−styled action, as well as counsel for the parties in Cleveland v. City of Montgomery, Case No. 2:13−cv−732, and Watts v. City of Montgomery, et al., Case No. 2:13−cv−733 (hereinafter Cleveland/Watts), were present. In light of representations and agreements made at this status conference, it is hereby ORDERED as follows: 1. The June 30, 2014 hearing set forth in the Preliminary Injunction Order is CANCELLED. The Court will instead hold a Telephone Status Conference on 6/30/2014 at 09:00 AM by conference call arranged by counsel for Defendant before Honorable Judge Mark E. Fuller. No parties other than the attorneys for the parties in the above−styled action and in Cleveland/Watts are required to be present for the June 30, 2014 telephone conference. 2. All deadlines contained in the Preliminary Injunction Order are suspended indefinitely and the Preliminary Injunction Order is extended for 30 days. 3. The parties in the above−styled action and Cleveland/Watts shall be prepared to discuss the status of Plaintiffs pending claims in their respective cases at the June 30, 2014 telephone conference. 4. The Clerk of Court shall also docket this order in Cleveland v. City of Montgomery, Case No. 2:13−cv−732. Signed by Honorable Judge Mark E. Fuller on 6/11/2014. Order docketed in Civil Acton No. 2:13−cv−732 as directed. Copies furnished to calendar group, WR. (dmn, ) (Entered: 06/11/2014)
45 Joint MOTION to modify for Extension of Deadline (1) Dispositive Motions (2) Face−to−Face Settlement Conf (3) Discovery & (4) Expert Disclosures re 35 Order, Terminate Motions, Set Scheduling Order Deadlines,,,,,,,,, 18 Scheduling Order,, by Harriet Delores Cleveland, Markis Antwuan Watts. (Brooke, Samuel). Corrected to clarify text as shown in PDF document as a MOTION to Modify 18 scheduling order on 6/23/2014 (qc/djy, ). (Entered: 06/20/2014)
46 ORDER GRANTING 45 MOTION to Modify 18 Uniform Scheduling order; the dispositive motions deadline, face−to−face settlement conference deadline, discovery deadline, and the expert disclosure deadlines set forth in the 18 Uniform Scheduling order are extended to 8/18/2014. Signed by Honorable Judge Mark E. Fuller on 6/23/14. (djy, ) (Entered: 06/23/2014)
47 COPY OF ORDER entered in Civil Action No. 2:14cv186−MEF directing as follows: (1) a telephone Status Conference is set for 7/21/2014 @ 09:00 AM before Honorable Judge Mark E. Fuller, by conference call arranged by counsel for defendant; (2) directing the clerk to also docket this order in Cleveland v. City of Montgomery, et al., Case No. 2:13cv732, as further set out in order. Signed by Honorable Judge Mark E. Fuller on 6/30/14. Furnished to calendar group & WR.(djy, ) (Entered: 06/30/2014)

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06/30/2014 07/21/2014 07/21/2014
08/12/2014 08/19/2014
08/20/2014 08/20/2014 08/20/2014 08/21/2014
08/26/2014 08/29/2014 09/03/2014 09/12/2014 11/14/2014 11/17/2014

Minute Entry for proceedings held before Honorable Judge Mark E. Fuller: Status Conference held by telephone on 6/30/2014 (NO PDF ATTACHED) (war, ) (Entered: 06/30/2014)
Minute Entry for proceedings held before Honorable Judge Mark E. Fuller: Telephone Conference held on 7/21/2014 (NO PDF ATTACHED). (war, ) (Entered: 07/21/2014)
48 ORDER entered in 2:14−cv−186: On 7/21/2014, a telephone status conference was held addressing the Court's 18 Preliminary Injunction Order. It is ORDERED as follows: 1. The Preliminary Injunction Order is extended for 30 days. 2. A telephone Status Conference is set for 8/20/2014 at 02:00 PM by conference call arranged by counsel for Defendant before Honorable Judge Mark E. Fuller. 3. The Clerk of Court shall also docket this order in Cleveland v. City of Montgomery, et al, Case No. 2:13−cv−732. Signed by Honorable Judge Mark E. Fuller on 7/21/2014. Copies furnished to calendar group, WR. (dmn, ) (Entered: 07/21/2014)
49 Joint MOTION to Continue by City of Montgomery, Les Hayes, III, Milton J. Westry. (Holliday, Shannon) Modified on 8/13/2014 to clarify text to reflect as also filed on behalf of plaintiffs (qc/djy, ). (Entered: 08/12/2014)
50 ORDER directing as follows: (1) the parties' 49 Joint MOTION to Continue the current deadlines for dispositive motions, discovery and Daubert motions is GRANTED; (2) the dispositive motions deadline (section 2), face−to−face settlement conference deadline (section 3), discovery deadline (section 7), and the expert disclosure deadlines (section 8) as currently set forth in the 46 Order modifying the uniform scheduling order are extended 60 days to October 20, 2014. Signed by Chief Judge William Keith Watkins on 8/19/14. (djy, ) (Entered: 08/19/2014)
51 Case reassigned to Honorable Judge Myron H. Thompson. Honorable Judge Mark E. Fuller no longer assigned to the case. (djy, ) (Entered: 08/20/2014)
Set Hearings: Status Conference set for 8/20/2014 02:00 AM by telephone before Honorable Judge Myron H. Thompson. (ag, ) (Entered: 08/20/2014)
52 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 8/20/2014 (PDF available for court use only). (Recording Time 2:06 − 2:23.) (ag, ) (Entered: 08/20/2014)
53 ORDER directing as follows: (1) all deadlines, including pretrial and trial dates, provided for by the 18 Uniform Scheduling Order are continued generally; (2) all outstanding motions are denied as moot; (3) the parties shall file appropriate settlement papers by 8/29/2014. Signed by Honorable Judge Myron H. Thompson on 8/21/14. Furnished to calendar group, AG & WR (terminates Pretrial Conference; Non−Jury Trial 11/03/2014)(djy, ) (Entered: 08/21/2014)
54 Joint MOTION for Settlement Entry of Agreed Settlement Order by City of Montgomery, Les Hayes, III, Milton J. Westry. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Holliday, Shannon) (Entered: 08/26/2014)
Set Hearings: Telephone Conference set for 9/3/2014 03:30 PM by telephone before Honorable Judge Myron H. Thompson. (war, ) (Entered: 08/29/2014)
55 Minute Entry for proceedings held before Honorable Judge Myron H. Thompson: Telephone Conference held on 9/3/2014 (PDF available for court use only). (Recording Time FTR: 3:29 PM − 3:49 PM.) (war, ) (Entered: 09/03/2014)
56 Joint MOTION for Settlement AMENDED JOINT MOTION FOR ENTRY OF AGREED SETTLEMENT ORDER by Harriet Delores Cleveland, Markis Antwuan Watts. (Attachments: # 1 Exhibit A, Judicial Procedures, # 2 Memorandum in Support, # 3 Text of Proposed Order)(Brooke, Samuel) (Entered: 09/12/2014)
57 ORDER denying 54 Motion for entry of agreed settlement order without prejudice. Signed by Honorable Judge Myron H. Thompson on 11/14/14. (djy, ) (Entered: 11/14/2014)
58 OPINION. Signed by Honorable Judge Myron H. Thompson on 11/17/2014. (wcl, ) (Entered: 11/17/2014)

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11/17/2014

59 JUDGMENT; it is ORDERED that the parties' 56 joint motion for entry of agreed settlement order is granted, as further set out in judgment; DIRECTING the clerk to enter this document on the civil docket as a final judgment pursuant to Rule 58 FRCP; These cases are closed. Signed by Honorable Judge Myron H. Thompson on 11/17/2014. (Attachments: # 1 Civil Appeals Checklist) (wcl, ) (Entered: 11/17/2014)

 
 Case 2:13-cv-00732-MHT-TFM

Document 1-2

Filed 10/04/13 Page 1 of 31
FT ECTRONICALL FILFf) -1 013,1:20 PM
)-(\ -2013-9014)4(i
CIP(J IT COUR I OF M )NTOMFRY COUNT', \L\B\\t.\
I IFFANY B \ICCORD, CLERK

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

HARRIET DELORES CLEVELAND,

Petitioner,

VS.

Case No. 03-CV-2013-901494.00

CITY OF MONTGOMERY, THE HONORABLE MILTON J. WESTRY,

Respondents.

AMENDED PETITION FOR DECLARATORY RELIEFS WRIT OF CERTIORARI, OR, IN THE ALTERNATIVE, WRIT OF MANDAMUS

COMES NOW Petitioner Harriet Delores Cleveland, by and through undersigned

counsel, and states as follows:

I. INTRoDucTIoN

I. Petitioner Harriet Cleveland is an indigent woman who was ordered' to be

incarcerated in the Montgomery Municipal Jail, in violation of her constitutional rights to due

process, equal protection, and to counsel.

2. Petitioner has been unable to find full time employment Since she was laid off

from her job at a day care in 2009. She has been babysitting and renting out rooms in her home

to strangers in order to make ends meet. Very recently, she obtained a part time job as a

custodian.

3. In 2008 and 2009, when a police roadblock was often set up in her West

Montgomery neighborhood, she incurred several tickets because she could not afford car

insurance. Her license was soon suspended because she could not pay the fines imposed, and she

obtained tickets for this failure as well when she drove to work and took her child to school.

This order remains in effect, but Petitioner was released from jail on a bond pending the resolution of her appeal.

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 2 of 31

4. On August 20, 2013, Petitioner was arrested at her home for failure to pay fines

and costs associated with various traffic tickets in the Montgomery Municipal Court ("Municipal

Court"). She had received a letter from the District Attorney, notifying her that she "MUST pay

this amount in full within SEVEN (7) days of the date of this notice or [she] may be

ARRESTED." (emphasis in original).

5. The Municipal Court ordered Petitioner to either pay $1554 immediately to

satisfy those fines, or be immediately taken into custody to serve a 31 day sentence. Petitioner

told the Municipal Court that she could not pay the full amount, but nonetheless was taken to the

Montgomery Municipal Jail immediately, where she remains.

6. The incarceration is unconstitutional for at least two reasons:

7. First: It is unconstitutional under both the due process and equal protection

clauses of the United States and Alabama Constitution to jail an indigent person for failure to pay

a fine. U.S. Const. amend. XIV; Ala. Const. art. I, § 1, 6, 22; Ala. R. Crim. P. 26.11 (setting

out procedures to comply with this constitutional right). See also Bearden v. Georgia, 461 U.S

660, 672-73 (1983) (jailing a probationer because he cannot pay a fine without considering her

ability to pay violates Fourteenth Amendment); Tate v. Short, 401 U.S. 395, 398 (1971) ("[T]he

Constitution prohibits the State from imposing a fine as a sentence and then automatically

converting it into a jail term solely because the defendant is indigent and cannot forthwith pay

the fine in full."); Frazier v. Jordan, 457 F.2d 726, 728-29 (5th Cir. 1972) (finding that an

alternative sentencing scheme of $17 dollars or 13 days in jail was unconstitutional as applied to those who cannot immediately pay a fine).

8.

In order to grant the relief Petitioner seeks, this Court need not consider the facts

surrounding her nonpayment or make any express finding about her inability to pay. Rather, the

2

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 3 of 31
fact that Petitioner said that she could not pay, coupled with the failure of the Municipal Court to make a meaningful inquiry into Petitioner's ability to pay, constitutes a violation under the Constitution and Rule 26.11 of the Rules of Criminal Procedure, and mandates that this Court quash the order of the Municipal Court.
9. Second: Because Petitioner was actually imprisoned on the charges against her, Petitioner was jailed in violation of her right to counsel, as she never knowingly and intelligently waived this right. See U.S. Const. amend. VI; Ala. Const. art. I, § 6; see also Scott v. Illinois, 440 U.S. 367, 373 (1979) (Because "actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment, . . actual imprisonment [is] the line defining the cônstittitional right to appointment of counsel" in nonfelony cases.).
10. Petitioner therefore asks that this Court issue a writ of certiorari and quash the order of the Municipal Court requiring Petitioner to serve the 31-day sentence, and declare that this order violates the U.S. and Alabama Constitutions and Alabama laW.
II. JURISDICTION
11. This COurt has jurisdiction of Petitioner's claim for declaratory relief under the Declaratory Judgment Act, Ala. Code § 6-6-222, and 42 U.S.C. § 1983, as Petitioner asks that this Court declare that the order and practice of the Municipal Court violates Alabama law and the Alabama and U.S. Constitutions. There is a justiciable controversy between the parties based on the order of confinement and practice of the Municipal Court to issue Such orders.
12. This COurt also has jurisdiction over this petition for a writ of certiorari. Petitioner Cleveland is appealing the decision of the Municipal Court to confine her in jail, long after the original conviction and sentence was imposed. For this reason, Section 12-14-70 of the Alabama Code, which provides for a direct appeal to the circuit court of a conviction by a
3

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 4 of 31
municipal court, appears to be inapplicable. Direct appeal under Section 12-14-70, which "was intended to provide an avenue by which criminal defendants... might enjoy and be guaranteed their. . . constitutional rights to trial before a jury," appears not to be implicated here, where Petitioner seeks only to challenge the court's unconstitutional modification of her sentence long after her original conviction. McDaniel v. State, 397 So.2d 237, 239 (Ala. Crim. App. 1981), writ denied sub nom. Exparte McDaniel, 397 So. 2d 239 (Ala. 1981).
13. Rather, where review in the nature of certiorari "would be considered eually effective and certainly less duplicitous," it has been deemed the proper method to challenge a post-conviction decision by a municipal court. Id. See also Essix v. City of Birmingham, 308 So. 2d 259, 260 (Ala. Crim. App. 1975) ("The supervisory power of the Circuit Court by way of certiorari is all that is afforded for review of orders" such as probation revocation entered by the municipal court.); Ala. Op. Atty. Gem No. 2002-036, 2001 WL 1421635 (Oct. 22, 2001) ("The proper appellate review of the revocation of probation by the district or the municipal court is a petition for writ of certiorari filed with the circuit court," and "[t]he circuit judge should review these petitions.").2
14. In the alternative, if a writ of certioriari is unavailable and the concurrently filed appeal is improper, this Court has jurisdiction over a writ of prohibition or mandamus. Exparte Owen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003) (writ of mandamus appropriate where the aggrieved party does not have "full and adequate relief" by appeal).
15. The petition was filed within a reasonable time, as it was filed within 14 days of the Municipal Court's order of confinement to jail.
2 Petitioner has also noticed an appeal in the Municipal Court within the time limit of 14 days from the Municipal
Court's order of confinement if this Court believes this to be the correct way to review the judgment. Ala. R. Crim. P. 30.3(a).
4

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 5 of 31
III. STATEMENT OF FACTS' A. Order of Incarceration 16. Petitioner Harriet Cleveland was ordered by the Municipal Court to be incarcerated in the Montgomery Municipal Jail for 54 days because of her failure to pay fines and fees on multiple traffic tickets. 17. Petitioner is a 49-year-old resident of Montgomery. She was arrested at her home on August 20, 2013, while babysitting her grandson. She was arrested and incarcerated for being unable to make payments on old traffic tickets in the amount of $1554. 18. Approximately two months earlier, Petitioner received a letter from the Office of the District Attorney of the Fifteenth Judicial Circuit of Alabama, notifying her that she owed $2714 in fines and fees on her traffic tickets. The letter states that she "MUST pay this amount in full within SEVEN (7) days Of the date of this notice or [she] may be ARRESTED." (emphasis in original). It does not give any other options if Petitioner cannot pay. 19. Petitioner spent one night in jail and appeared before The Honorable Milton J. Westry of the Montgomery Municipal Court on August 21, 2013. Judge Westry told Petitioner that she must serve 31 days in jail if she did not pay $1554 immediately. 20. Petitioner told Judge Westry that she previously did not have a job. She told him that, very recently, she had finally found a part-time job that would help her make money to pay the tickets. Judge Westry asked an agent of Judicial Correction Services ("JCS"), who Sits at the front of the courtroom, whether Petitioner was qualified for a payment plan, and the agent said no. Petitioner was returned to jail.
Petitioner previously verified the facts contained in the original Petition, which have not changed with this amendment except to reflect the fact that Petitioner has since been released from the Montgomery Municipal Jail.
hi

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 6 of 31
21. Petitioner heard Judge Westry give others the same option of paying fines or serving time in jail. When one woman said that she was unable to pay, he said that she must be jailed because of a policy that he must follow.
22. A copy of the transcript given to Petitioner, which details the court's disposition of each of these cases ,4 is attached to this Petition. Each case is listed as "commuted," and the judge's order to either pay the fine or spend 31 days in jail is detailed at the bottom of the order.
23. Petitioner has been told by many others that they also have been, or are currently, incarcerated because of their inability to pay fines.
B. Background
24. Petitioner incurred the traffic tickets on which she is currently jailed in 2008 and 2009, when a police roadblock was often set up in her neighborhood.
25. She was jailed at least twice in 2009 and 2010 on these tickets. When she told the judge at one hearing that she could not afford to pay because she was only able to find part-time work, he told her to find another job.
26. Petitioner was previously ordered to make payments of $140 per month to Judicial Correction Services ("JCS"), a private probation company. She paid what she could when she had the money, but never had the full $140 every month. The Municipal Court did not conduct a review of her financial situation or ability to make those large monthly payments.
27. Petitioner has been unable to find full-time work for years. Petitioner lost her full time job at a daycare in 2009, and was able to obtain only a part time job over the next year until she was again laid off. Since that time, she has made some money for daily necessities by babysitting and by renting out two rooms of her home to strangers. Very recently, Petitioner was
4 The case numbers are 2008TRT029308; 2009TRT022302; 2009TRT034595; 2009TRT035054; 2009TRT047492; 2009TRT095474; 2009TRT095475; and 2009TRT1 06724.
RI

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 7 of 31
able to obtain a part-tithe job cleaning a daycare. However, after years without a full-time job, she is still left without resources to pay for daily necessities. She filed for bankruptcy in June 2013.
28. Under her Chapter 13 plan, she must make monthly payments of $250.00, which she is unable to do while she is in jail and unable to work. She also believes that she will lose her cleaning job as well as her babysitting jobs while she is forced to stay in jail and miss work for over a month.
IV. STATEMENT OF ISSUES 29. Should the order of the Municipal Court be quashed or declared to be in violation of Alabama law and the U.S. and Alabama Constitutions because of the Municipal Court's failure to make a meaningful inquiry into Petitioner's inability to pay and her indigency, thereby subjecting her to incarceration because of her inability to pay in violation of the equal protection and due process clauses? 30. Should the order of the Municipal Court be quashed or declared to be in violation of Alabama law and the U.S. and Alabama Constitutions because of the Municipal Court's failure to appoint counsel for Petitioner or obtain a waiver of this right? V. STATEMENT WHY WRIT SHOULD ISSUE AND WHY DECLARATORY RELIEF SHOULD BE
GRANTED 31. Petitioner is unlawfully incarcerated because of her indigence and inability to pay her fines, in violation of the Fourteenth Amendment of the United States Constitution; Article I, Sections 1, 6, and 22 of the Alabama Constitution; and Rule 26.11 of the Alabama Rules of Criminal Procedure.
7

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 8 of 31
32. She is also unlawfully incarcerated in violation of her right to counsel under the Sixth Amendment of the United States Constitution and Article I, Section 6 of the Alabama Constitution.
33. On a petition for a common-law writ of certiorari, the Court is "responsible for reviewing the record to ensure that the fundamental tights of the parties, including the right to due process, had not been violated." Franks v. Jordan, 55 So. 3d 1218, 1220-21 (Ala. Civ. App. 2010) (quoting Evans v. City of Huntsville, 580 So.2d 1323, 1325 (Ala.1991)). "The appropriate office of the writ is to correct errors of law apparent on the face of the record,.. . and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review." Id. (quoting City of Birmingham v. Southern Bell Tel. & Tel. Co., 82 So. 519, 520 (Ala. 1919)).
34. This Court should exercise its "supervisory power. by way of certiorari" to protect the rights of Petitioner and ensure that the Municipal Court understands its duties and the rights of all criminal defendants under the United States and Alabama Constitutions. Essix, 308 So. 2d at 260.
35. The Court may also declare this order and practice to be in violation of Alabama law and the U.S. and Alabama Constitutions under Ala. Code § 6-6-222 and 42 U.S.C. § 1983.
A. Due Process and Equal Protection 36. The Municipal Court violated Petitioner's due process and equal protection rights
by failing to make a meaningful inquiry into her ability to pay and sentencing her to serve a jail term simply because of her inability to pay the fines and fees imposed..
37. The U.S. Supreme Court has consistently held that courts violate the Fourteenth Amendment by treating indigent criminal defendants differently than those who are able to pay.
8

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 9 of 31
See Bearden v. Georgia, 461 U.S. 660, 672-73 (1983) (to "deprive a probationer of her conditional freedom simply because, through no fault of her own he cannot pay a fine. . would be contrary to the fundamental fairness required by the Fourteenth Amendment"); Tate v. Short, 401 U.S. 395 (1971) (holding that to imprison a defendant who was unable to pay a fine violated the Equal Protection Clause of the Fourteenth Amendment); Williams v. Illinois, 399 U.S. 235, 241 (1970) ("reaffirm[ing] allegiance to the basic command that justice be applied equally to all persons"); Douglas v. California, 372 U.S. 353, 355 (1963) (denouncing the "evil" of "discrimination against the indigent"); Griffin v. Illinois, 351 U.S. 12, 19 (1956) ("There can be no equal justice where the kind of trial a man gets depends on the amount of money be has.").
38. In Tate, the Supreme Court adopted the view that "the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full." Tate v. Short, 401 U.S. 395, 398 (1971). This is true "whether or not the fine is accompanied by a jail term." Id. It noted that the State may constitutionally resort to other alternatives in Order to serve its valid interest in enforcing payment of fines, such as imposing installment plans. Id. at 399-400.
39. In Bearden, the United States Supreme Court reversed the trial court's probation revocation based on the defendant's failure to pay fines and restitution, because the court did not first determine that the defendant had the ability to pay. The Bearden Court held,:
[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay if the probationer willfully refused to pay or failed to make sufficient bona fide effOrts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures to punishment other than imprisonment. Only if alternate measures are not adequate to meet the

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 10 of 31
State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay.5 Bearden, 461 U.S. at 672. 40. The former Fifth Circuit explicitly held that an alternative sentencing scheme, such as that used by the Municipal Court in this case, was unconstitutional as applied to those who were unable to pay the fine at once. See Frazier v. Jordan, 457 F.2d 726, 727 (5th Cir. 1972) (ending, based on the Supreme Court's decisions in Williams and Tate, that an alternative sentencing scheme of $17 dollars or 13 days in jail was unconstitutional as applied to indigent defendants). 41. The Court of Criminal Appeals similarly has made clear that, "[i]n revocation proceedings for failure to pay fines, restitution, court costs, or supervision fees, the trial court should inquire into the reasons for the failure to pay and make Specific detrminatiotis and findings in accordance with Bearden v. Georgia," including findings, "supported by the evidence, that defendant willfully refused to pay; that he failed to make sufficient bona fide efforts to pay; or, in the event of a showing of sufficient efforts to pay, that alternative measures to punish and deter are inadequate." Snipes v. State, 521 So.2d 89, 90-91 (Ala. Crim. App. 1986). 42. Rule 26.11 of the Alabama Rules of Criminal Procedure also purports to establish procedures "consistent with the United States Supreme Court's holding in Tate v. Short." Committee Comments, Ali. R. Crim. P. 26.11. It mandates that "[un no case shall an indigent
The Supreme Court has rejected three reasons offered to show why imprisonment was required to further penal goals. First, the state's interest in "ensuring that restitution be paid to the victims" is insufficient, because
[r]evoking the probation of someone who through no fault of his own is unable to make restitution will not make restitution suddenly forthcoming Bearden 461 U S at 670 Similarly, the state ',s interest in removing a defendant from the temptation of committing other crimes in order to protect society and rehabilitate him is also insufficient as this would amount to "little more than punishing a person for her poverty." Id. at 671. Finally, although the state's interest in punishment and deterrence of others is a valid interest it can be served fully by alternative means including extending the time for making payments reducing the fine or directing that the probationer perform labor or public service in lieu of the fine. Id. at 671-72.
10

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 11 of 31
defendant be incarcerated for inability to pay a fine or court costs or restitution." Ala. R. Cnm. P. 26.11 (1)(2). Moreover, "[i]ncarceration should be employed only after the court has examined the reasons for nonpayment," including "consideration of the defendant's situation, means, and conduct with regard to the nonpayment of the fine and/or restitution." Id. 26.11 (i)(1). Thus, the court must consider the financial situation of any defendant and her ability to pay before ordering incarceration.
43. Rule 26.11 provides other remedies for a defendant's failure to pay, including (1) reducing the fine to an amount the defendant is able to pay; (2) continuing or modifying the schedule of payments; (3) ordering an employer to withhold wages; or (4) releasing the defendant from an obligation to pay the fine. Id. 26.11(h).
44. In the instant case, the Municipal Court failed to conduct even a cursory review of Petitioner's ability to repay her fines or her bona fide efforts to acquire the money to pay. It thus failed in its affirmative duty to inquire into ability to pay, as required by Rule 26.11 and Bearden.
45. The Municipal Court should not have a policy requiring incarceration when individuals cannot pay their fines. It may not categorically determine that failure to meet any previously imposed payment plans justifies an alternative sentence of immediate payment or mandatory incarceration, especially when the previous payment plans involved a rninimtirn monthly payment far beyond the means of Petitioner. Under Rule 26.11 and the Alabama and U.S. Constitutions, the court is still required to determine the reasons for the inability to pay and whether Petitioner is indigent before imposing a sentence that mandates incarceration for failure to pay.
11

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 12 of 31
46. This Court need not consider the facts surrounding Petitioner's nonpayment and make an express finding that Petitioner did not have the ability to pay order to grant the relief requested. Rather, Petitioner's inability to pay the fine immediately coupled with the failure of the Municipal Court to meaningfully inquire into Petitioner's ability to pay constitutes a violation under the Alabama and U.S. Constitutions and Rule 26.11, and mandates that this Court quash the order of the Municipal Court.
B. Right to Counsel 47. Petitioner was sentenced to incarceration without being provided With counsel or
waiving this right, in violation of the Sixth Amendment of the United States Constitution and Article I, Section 6 of the Alabama Constitution.
48. Because "actual imprisonment is a penalty different in kind from fines or the more threat of imprisonment, . . . actual imprisonment [is] the line defining the constitutional right to appointment of counsel" in nonfelony cases Scott V. IllinOis, 440 U.S. 367, 373 (1979); see also Alabama v. Shelton, 535 U.S. 654, 662 (2002).
49. "In Order to waive the right to counsel, the record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer." Ex parte Shelton, 851 So. 2d 96, 101 (Ala. 2000), affd sub nom. Alabama v. Shelton, 535 U.S. 654 (2002). A knowing and intelligent waiver requires: "1) that the defendant was informed that he had the right to counsel, 2) that the defendant was informed that if he could not afford counsel the state would appoint counsel to represent him, and 3) an affirmative showing by the defendant that, understanding these tights, he still elects to proceed without counsel." Id.
12

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 13 of 31
50. At the hearing on August 21, Petitioner was actually incarcerated on the Municipal Court's order. She was not provided with appointed counsel, and did not waive her right to counsel.
WHEREFORE, Petitioner respectfully prays for relief as follows: A. Promptly grant the writ of certiorari or, in the alternative, mandamus; B. Find and declare that the Municipal Court's order constitutes a violation of the due process clause, equal protection clause, and/or the right to counsel provisions of the Alabama or U.S. Constitutions; and C. Quash the order of confinement ordering Petitioner to the Montgomery Municipal Jail in violation of her constitutional rights.
Dated this 18th day of September, 2013.
Respectfully submitted, /s/ Sara Zampierin Sara Zampierin (Bar No. ZAM002) Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 Telephone: (334) 956-8200 Fax: (334) 956-8481 Email: sara.zampierin@splcenter.org Attorney for Petitioner
13

Case 2:13-cv-00732-MHT-TFM
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Document 1-2 offiteg of

Filed 10/04/13 Page 15 of 31
FT F1O1C HYFT[FD 18/201 1:'0 PM
U ( V 21 01494 CIRCUiT COURT OF MON!(iUNIERY CO1NFY, \1 ARAMA TIFFANY B. \IC(ORD, ('LERK

DARYLD. BAILEY RH TWA B CAPE JERRYSNA. 00DSW0RTH
CHIEF

IEritt Attarop
ftIIth 3jubittat Circuit of [abama
MONTGOMERY COUNTY COURTHOUSE 251 SOUTH LAWRENCE STREET P.O. BOX 1667.
MONTGOMERY, ALABAMA 36102-1667
June 24, 2013

(334)241-2455 FAX (334) 241-2332

Harriet Delores Cleveland 326 Ogden,Avenue Montgomery, AL 36105
RE: Case N64 N2241 591. N1955864, N2239427, N286475 1, N2826652, N3348720, N2849160, N2849161 Charge: NO INSURANCE, NO INSURANCE, NO INSURANCE, SUSPENDED LICENSE, NO INSURANCE, NO LICENSE, SUSPENDED LICENSE, NO INSURANCE

Balance Due: $2,714.00
According to City of Montgomery records, you have failed to pay Al court ordered monies in the abovedescribed case(s). This case(s) has been turned over to the DISTRICT ATTORNEY for collection under Section 12-17-225 et seq. of the Code of Alabama.
You are hereby .notified that you owe the amount you failed to pay plus the collection fee. Your balance due is stated above.
You MUST pay this amount in full within SEVEN (7) days of the dale of this notice or you may be ARRESTED
You, may pay by mail by sending a money order or a cashier's check to the Montgomery Municipal Court, P.O. Box 159 Montgomery, Alabama 36101-0159. Cash and personal checks are NOT accepted. Please enclose a copy of this notice with you payment.
You may make you payment by visiting www.montzomeryaltiLcom or by phone using a credit.card by calling (888) 912-1522 or (334) 625-2777. Please have this notice with you.
You may pay in person at the Montgomery Municipal Court, 320 North Ripley Street, Montgomery, Alabama by cash, money order, , cashier's check, personal check or credit card. Please bring this notice with you.
If you have any questions, you may contact me at (334) 625-2455. Thank you.
Sincerely,
Ellen Brooks District Attorney
BY: Michelle Rivers Stewart Restitution Recovery Officer

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 16 of 31

8/28/13

2009TRT035054 - CITY OF MONTGOMERY s. CLEVELAND. H

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Case Details - Summary

\N B. MCCORD. CLERK

2009TRT03 5054 CITY OF MONTGOMERY vs. CLEVELAND, HARRIET D

Judge: MUNICIPAL JUDGE

Case Type: Traffic

Case Number: 2009TRT035054

Uniform Case Number:

Clerk File Date: 511312009

Statusflate: 511312009.

SAO Case Number: AL0030100

Total Fees Due: 16.00

Agency: MONTGOMERY POLICE DEPARThEt4T Agency Report #- N2241591

Status: COMMUTED Custody Location:

PARTIES

TYPE

PARTY NAME

DEFENDANT CLEVELAND, HARRIET D

OFFICER

MCCORD, TMANE LATEZ

PLA11FF CITY OFMONTGOMERY

IATTORNEY

CHARGES COUNT DESCRIPTION I FAIL POSSESS/DISPLAY INS (ISTOFFENSE) (324 A- 1 6(1))

LEVEL DEGREE PLEA DISPOSITION GUILTY

DISPOSITION DATE 0610112012

EVENTS DATE 8121120138:00AM 312312010 8:00 AM 2/1120I08:0OAM 10/19/2009 8:00 716/2009 8:00 AM 6/8/2009 8:00 AM

EVENT JAIL JAIL TP-LOOKLI! JAIL DAILY DAILY

IJUDGE WESTRY, MILTON J WtUNICIPALJUDGE MUNICIPAL-JUDGE MUNICIPALJUDGE MUNICIPALJUDGE MUNICIPAL JUDGE

JIOCATIOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAINCOURTROOM MAIN COURTROOM

SULT
CANCELLED coN-r CONT CONT CONT

CASE HISTORY
CASE NUMBER

[CiHARGE DESCRIPTION

CASE STATUS ..JDISP0SITION jOUTSTANDING AMOUNT No Additional Cases

CASE DOCKETS
rke
1 812112013

j
TRANSCRIPT

812012013 JAIL COURI SET FOR 08/21/2013 AT 8:00 AM IN MAIN COURTROOM

6/24/2013 ALIAS WARRANTS STATUS SET TO ICALLED ON 0612412013

6124/2013 COLLECTION

6124/2013 JAIL

NEXT EVENT JALERTS

1/2

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 17 of 31

8/2&/13 6/24/2013

2009TRT035054- CITY OF MONTGOMERY w. CLEVELAND, HARRIET D WARMNTNUM5ER: 13201339328

6/24/2013 ALIAS WARRANTS STATUS SET TO OUTSTANDING ON 06/24/2013

8/16/2012 ARCHIVED RECORDS

8/16/2012 REVOCATION LETTER

6/1/2012

PAYMENT $1.00 RECEIPTä20I26479I6

6/1/2012

CASE CLOSED

6/1/2012

CAS02009TRT035054-SENTENCED: 6/1/2012 IMPOSLD: 6/1/2012 EFFECtiVE DATE: 6/1/2012

6/1/2012

DEFENDANT ENTERED PLEA OF GUI LTY.SEQ1

6/1/2012

GUILTY SEQ:1

3/9/2012

PAYMENT $152.00 RECEIPT #2012018929

3/23/2010 Court date/ttrrE: 03/23/2010 - 13:00.

3/23/2010 Ileartng Type changed fromTP to J.

3/2212010 Report Subntted; CAR ASWI

11/6/2009 CoUrt date/time: 02/011/2D10 - 08:30.

11/612009 Hearing Type changed from J toTP.

10/19(2009 Courtte/tinE: 10/19/2009-08:30.

10/1912009 Hearing Type changed from D to J.

10/19/2009 Report -Submitted: ALIAS WI

6/29(2009 Court date/tine: 07/002009 - 08:30.

5/13fl009 Case Statusentered as P. 5/1312009 Hearing Type entered as V. 5/1312009 Courtdate/tirr: 06/08/2009 - 08:30.

2'2

8/28/13

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 18 of 31
2008TRT029308 - CITY OF MONTGOMERY 'es. CLEVELAND, HARRIET D

Case Details - Summary
2008TRT029308 CITY OF MONTGOMERY vs. CLEVELAND. HARRIET D

MARY

Judge MUNICIPAL JUDGE

Case Type: Traffic

Case Number: 2008TRT029308

UnifOrm Case Nunther

Clerk File Date: 5/12/2008 SAO Case Number: AL0030I00

Status Date: 5/12/2008 Total Fees Due: 179.00

Agency: MONTGOMERY POLICE DEPARTMENT Agency Report#: N1955864

Status: COMMUTED Custody Location:

PARTIES

TYPE

PARTY NAME]rro RN El

DEFENDANT CLEVELAND, HARRIET I)

OFFICER BRADLEY, TIMOTHY A

PLAINTIFF CITY OF MONTGOMERY

-

-

CHARGES COUNT DESCRIPTION 1 FAIL POSSESS/DISPLAY INS. (1ST OFFENSE) (32-7A-16(1))

LEVEL DEGREE PLEA DISPOSITION DISPOSITION DATE

EVENTS DATE
/21/2013 8:00 AM 3/23/2010 800 AM 2/1/20108 00 AM 10/19/2009 800 AM 7/6/2009 8:00 AM 61812009 B-00 Am 4/20/20098 00 AM 6/911008 8:00 AM

-

-

EVENT

JAIL

JAIL TP LODKUP

JAIL DAILY

DAILY

DAILY NON-COURTTRAFFIC

IJUDGE!LOCATION

WESTRY, MILTON J

MAIN COURTROOM

MUNICIPAL JUDGE

MAIN COURTROOM

MUNICIPAL JUDGE

MAIN COURTROOM

MUNICIPAL JUDGE MUCIPAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE

MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM

1RESULT
CONT CONT CONT CONT CONT - CONT

CASE HISTORY CASE NUMBER

HARGE;ESCRIPTION

CASE D0CKE75

jCASE STATUS IDISPOSITION No Additional Cases

DATE 8121/2013

ENTRY TRANSCRIPT

8/20/2013 JAIL COURI SET FOR OB/21/2013AT8:OOAMIN MAIN COURTROOM

6/24/2013 ALIAS WARRANTS STATUS SET TO RECALLED 0N06/24/2013

6/2412013 COLLECTIONIIT1ER

6/24/2013 JAIL SUMMARY SHEET ecotr1gomgmi'BerxthnrKwb/CourtCase.aspQ'DetaIIsPrInt/827109

STANDING AMOUNT

TNEXT EVENT JALERTS

1/2

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 19 of 31

&is

2008TRT029308- crrv OF MONTGOMERY w. CLEVELAND, HARRIET D

6/1412013 ALIAS WARRANT

611412013 WRRAI4TNUMBER: 13201339329

61244013 ALIAS WARRANTS STATUS SET TO OUTSTANDING ON 06124/2013

8/16/2012 ARCHIVED RECORDS

8/16/2012

REV0CA11ON LETTER

3/23/2010 Court date/tin: 03/23/2010 - 13:00.

3i23i201 0 Hearing Type changed fromTP to J.

3/23/2010 Warrant #008A29308 8/13/2008 Canceled.

3122/2010 Report Subntted: CAPIASWI

-11/0009 Court date/turn: 02/01/2010 -08:30.

11/64009 HearIng Type changed frorni to TP.

10/19/2009 Court date/time: 10/19/2009• 08:30.

10/19/2009 Homing TypO changed from D to J.

6/29/2009 Court date/tlrrn: 07/06/2009 - 08:30.

6/2/2009

Case Status changed from R`(. to P.

5/15/2009 Case status changed from P to RC.

4/1612009 Hearing Type changed fronilto D.

4116/2009 Court date/time: 04/20/2009 - 08:30.

4/16/2009 Case Status changed from CAP toP.

8/13/2008 Warrant #0084029308 8/13/2008 issued. 8/13/2008 Case StátUs-chänged from P to CAP. 5/12/2008 Hearing Type entered as T. 5/12/2008 Case Status entered as P.

22

a'2a'13

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 20 of 31
2009TRT022302- CITY OF MONTGOMERY'e. CLEVELAND, HARRIET D

Case Details - Summary
2009TRT022302 CITY OF MONTGOMERY vs. CLEVELAND, HARRIET D

SUM4RY

Judge: MUNICIPAL JUDGE

Case Type: Traffic

Case Number: 2009TRTD22302

Uniform Case Number:

Clerk File Date: 3/17/2009

Status Date: 3/1712009

SAO Case Number: AL0030100

Total Fees Due: 52.00

Agency: MONTGOMERY POLICE DEPARTMENT Agency Report#: N2239427

Status: COMMUTED Custody Locaon:

PARTIES

TYPE

PARTY NAME

DEFENDANT CLEVELAND, HAM ETD OFFICER FLEMING, RICHARD L PLAJ Nil FF CITY OF MONTGOMERY

ATTORNEY

CHARGES COUNT DESCRIPTION 1 FAIL POSSESS/DISPLAY INS. (2ND OFFENSE) (32-7A.16(2))

LEVEL DEGREE PLEA DISPOSITION DISPOSITION DATE

EVENTS DATE 8/21/20138:00AM 3/23/20108:06AM 2/1/20108:O0AM 1O/19/2309B:0OM 716/20098,00 AM 6/8/2009 8;00 AM 5/25/20098:OOAM

EVENT JAIL JAIL TP-LOOKUP JAIL DAILY DAILY NON-COURTTRAFFIC

JUDGE WESTRY, MILTON J MUNICI PAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE MUNICIPALJ.JDGE MUNICIPAL JUDGE

JLOCATiON.ESULT

WJNCOURTR0OM

MAI N COURTROOM

MAINCOURTROOM

CONT

WJNCOUTROOM

CONT

MAIN COURTROOM

MAINCOURTROOM

--

MAIN COURTROOM

COHT CONT CONT

HISTORY NUMBER

ICHARGE. DESCRIPTION

ICASESTATUS (DISPOSITION [OUTSTANDING AMOUNT No Additional Cases

INEXT EVENT jERTS

1/2

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 21 of 31

8/13 6/24/2013

ALIAS WARRAiff

2009TRT02Z302- CITY OF MONTGOMERY s. CLEVELAND, HARRIET D

6/24/2013 WARRANT NUMBER: 13201339331

024/2013

ALIAS WMRM'T5 STATUS SET TO OUTSTANDING 0N66/2412th3

= 8/16/2012 ARCHIVED RECORDS

8/16/2012

REVOCA110N LETTER

3/9/2012

PAYMENT $217.06 RECEIPT 02012019159

3/23/2010 Court date/time: 63/23120110-- 13:00.

3123/2010 HearingType changed fromTPtoJ.

3122/2010 Report Submitted: CAPIASWI

3/22/2010 Report SilbrTlltted: CAPIASWI

11/6/2009 Court date/time: 02101/2010 - 08:30.

11/612009 Hearing type changed from Jto TP.

10/19/2009 Court date/tini: 10/19/2009- 08:30.

10/19/2009 Herfng Type changed from 0 to J.

10/1912009 Report Submltted: ALIAS WI

61291200

Court date/time: 07106/2009 - 08:30.

6/2/2009

Court date/time: 06108/2009 - 08:30

6/2/2009

Hearing Type changed fromTto D.

311712009 Hearing Type entered as T

311712009 Case Status entered as P.

212

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 22 of 31

2W13

2009TRT047492- CITY OF MONTGOMERY w. CLEVELAND, HARRIET D

Sack

Case Details - Summary
2009TRT047492 CtTY OF MONTGOMERY vs. CLEVELAND, HARRIET D

Judge: MUNICIPAL JUDGE

Case Type. Traffic

Case Number: 2009TRT047492

Uniform Case Number;

Clerk File Date: 6/5/2009

Status Date: ' 6/5/2009

SAO Case Number: AL0030100

Total Fees Due; 629.00

Agency: MONTGOMERY POLICE DEPAMENT

Agency Raport# N2864751

Status: COMMUTED Location:

PARTIES
TYPE IPARTY NAME
DEFENDANT CLEVELAND, IIARRILT D OFFICER RODRIGJEZ, PAUL RICKY PLAJNI1FF CITY OF MONTGOMERY

jATTORNEY

CHARGES

COUNT DESCRIPTION

-

1 DRIVING WHILE SUSPENDED (32-6-19)

LEVEL DEGREE PLEA DISPOSITION

DISPOSITION DATE

EVENTS
DATE

EVENT

V21/20138:00AM

JAIL

3/23/20108:60 AM JAIL

2/1/2010800 AM

1? LOOKUP

10/19/2009 8:00AM

JAIL

7/6/2009 8:00 AM

DAILY

JUDGE
WESTRY, MILTON J MUNICIPAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE MIJNICIPALJUDGE

JrION
MAJNCOURTROOM MAIN COURTROOM MAiN COURTROOM MAIN COURTROOM MAJNCOURTROOM

IRESULT --
-
CONT CONT CONT

CASE HISTORY
CASE NUMBERiKARGg DESCRIPTION

CASE STATUS DISPOSITIONOUTSTANDING AMOUNT
No Additional Cases

VxT EVENT 1ALERTS

106859

1/2

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 23 of 31

8128/13

2009TRTO4749,2n CITY OF MONTGOMERY %a. CLEVELAND, HARRIET P

612412013 WARRANT NUMBER 13201339332

6/24I1013 ALIAS WARRAN1s STATUS SET TOO1rrsTNDIMGoNo6/24/2013

811612012 ARCHIVED RECORDS

8116/2012 REVOCATION LETIER

312312010 Court date/time: 0312312010- 1300.

3/2312010 Hearing Type changed fromTPtoJ.

3/22/2010 Report Submitted: CAPIASWI

11/612009 Court date/tine: 02/01/2010 - 08:30.

11/6/2009 Hearing Type changed from to W.

10/1912009 10119/2009

ReportSubnittecl: ALIAS WI Hearing Type changed from DtoJ.

10/1912009 Court date/tine: 10/19/2009 - 08:30.

6/5/2009

HearIng Type entered as D.

615I669

Case Status entered as P.

ecoutt.mongomeri.goenchnwI'Web'CourtCase.aspxVetaJIsPrinU11D0859

212

828/13

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 24 of 31
2009TRT034595- CITY OF MONTGOMERYs. CLEVELAND, HARRIET 1) Back Irict

Case Details - Summary
2009TRT034595 CITY OF MONTGOMERY vs. CLEVELAND, HARRIET D

Judge: MUNI C I PAL JUDGE

Case Type: Traffic

Case Number 2009TRT034595

Uniform Case Number:

Clerk File Date: 5/712009

Status Date: 517/2009

SAO Case Number: AL0030100

Total Fees Due: 16.00

Agency: MONTGOMERY POLICE DEPARTMENT Agency Report #. N2826652

Status: COMMUTED Custody Location:

PARTIES

TYPE

PARTY NAME

DEFENDANT CLEVELAND, HARRIETD OFFICER DONIVER, CLARENCE MARTIN PLAiNTIFF CITY OF MONTGOMERY

1ATT0R)EY -

CHARGES COUNT DESCRIPTION I FAIL POSSESS/DISPLAY INS. (IST OFFENSE) (32.7A-16(1))

- LEVEL DEGREE PLEA DISPOSITION GUIL1Y

DISPOSON DATE 03109120!2

EVENTS

DATEIEVENT

8/2112013800AM

JAIL

3/23I20108:00M

JAIL

2/1/2010 8:00 AM

TP-LOOKUP

10119120098 ODAM

JAIL

7/15/20098 00 AM

DAILY

6/8/2009 8:00 NA

DAILY

5/25/20098:00 AM DAiLY

7/6/2006 8:00 AM

- DAILY

fJUDGE WESTR' MILTON MUNICIPAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE MUN1CIPAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE

ILOCATION MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM

,]ESIJLT
CANCELLED CONT COPIT CONT CONT CONI' CONT

CASE HISTORY CASE NUTFHARGE DESCRIPTION
CASE DOCKETS

ICASE STATUS JDISPOSITION 1OUTSTAKDING AMOUNT NoAddttlonaLCases

DATE 8/2112013

TRANSCRIPT

8/2012013 JAIL COURTSET FOR68/2112013 AT8:O0 AM 114 MAIN COURTROOM

6124/2013 ALIAS WARRANTS5TA1USSETTO RECALLED 01,106/24/2013

6/2412013 COLLECTION LETTER

6/24/201

JAILSUM#iARY SHEET

JNEXT EVENT IALERTS
112

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 25 of 31
2009TRT034595- CITY OF MONTGOMERY vs. CLEVELAND, HARRIET D

6/2412013 ALIAS WARRANT 6/24/2013 WARRANT NUMBER: 13201339333 6/244013 - ALtASWAA{P STATUS SET TOOLJTSTANDING0N06/24/2013

8/1612012 ARCHIVED RECORDS

8/16/2012 REVOCATION LETTER

3/9/2912

PAYMENT$153.00 RECEIPT#2012018927

3/912012

CASE CLOSED

3/9/2012

CAE# 2009TR1034595 - SENTENCED: 3/9/2012 IMPOSED: 3/9/2012 EFFECTIVE DATE: 3/9/2012

3/9/2012

DEFENDANT ENTERED PLEA OF GUILTY SEQI

3/9/2012

GUILTY SEOjI

3/234010 Court date/ time: 03/23/2010- 13:00.

3/23/2010 Hearing Type.changed fromTP to J.

3/22/2010 Report Subtdtted: CAPASWI

3/22/2010 Report Submitted: CAP] SWI

11/6/2009 Court date/time: 02/0112010- 0:30.

1116/2009 Hearing Type changed fromitoW.

10/1912009 Court dateltirrie: 10119/2009-08:30.

10/19/2009 Hearing Type changed from D to J.

10/19120O9 Report Submitted: ALIAS WI

6/29/2009 Court date/tirre: 07106/2006 -08:30.

6/2/2009

Court date/time: 06/08/2009 - 08:30.

5/12/2009 Court date/tIme: 07/15/2009-08:30.

5/7/2009

Case Status entered as P.

- -

511/2069

Hearing T' ype enteredas D.

2/2

awl a

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 26 of 31
2009TRT106724 - CITY OF MONTGOMERY vs.. CLEVELAND. HARRIET D Back 1 ftint ®

Case Details - Summary
2009TRT106724 CITY OF MONTGOMERY vs. CLEVELAND, HARRIET D

SUMMARY

Judge: MUNICIPAL JUDGE

Case Type: Traffic

Case Nuniber 2009TRTI 06724

Uniform Case Number:

Clerk File Date: 11/18/2009

Status Date: 11/184009

SAO Case Nurnber ,AL00301 00

Total Fees Due: 204.00

Agency: MONTGOMERY POLICE DEPARTMENT Agency Report N3348720

Status: COMMUTED Custody Location:

PARTIES

TYPE

PARTY NAME

DEFENDANT CLEVELAND, 1-IARRIEr 0

OFFICER PETERSON JOSEPH FREDRICK

PLAINTIFF Clii OF MONTGOMERY

ATTORNEY

CHARGES COUNT DESCRIPTION I NO DRIVER LICENSE (32-6-1)

LEVEL DEGREE

PLEA DISPOSITION

DISPOSITION DATE

EVENTS

DATE

jEVENT

8/21/2013 8:00 AM

JAIL

3/23/2010 8:00 AM

JAIL

12/16/20098:00 AM NON COUTRAFFIC

11/3012009800AM DAILY

--7 WESTRY, MILTONJ MUNICIPAL JUDGE MUNICIPAL JUDGE MUNICIPAL JUDGE

LOCATIONRESULT

MAIN COURTROOM

MAIN COURTROOM

MAIN COURTROOM

CONT

MAIN COURTROOM

COW

CASE HISTORY CASE NUMBER

JCHARGE DESCRIPTION

-

{CASE STATUS

DISPOSITION

No MdItlonM Cases

OUTSTANDING AMOUNT

fNEXT EVENT IALERTS

ecirUitgthl.gcBehchrkCótrtCase.asp'DetaI1sPrInV1561729

1/2

8(28/13

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 27 of 31

CITY

2009TRT106724 -

OF MONTGOMERY %a. CLEVELAND, HARRIET D

6124/2013 ALIAS WARRANTS STA11JS SET TO OUTSTANDING ON 0612412013

8/16/2012 ARCHIVED RECORDS

8116/2012

REVOCA11ON LETTER

3/23/2010 Wariant #00M06fl4 111212010 Canceled.

3/23/2010 Court date/time: 03123/2010 - 13:00.

3/23/2010

4asrthg T/pe changed fromT to J.

3123/2010 Case Status changed from CAP to P.

3/22/2010

Report Subnitted: ALIAS WI

1/1212010 Warrant #009A106724 1/12/2010 issued.

1/12/2010 Case Status changed from Pto CAP.

11125/2009 Court date/tine: 11/30/2009-08:30.

11/25/2009 Hearing Type changed from T to D.

111181260 Hearing Type entered asl.

11/18/2009 Case Status entered as P.

2(2

M13

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 28 of 31
2009TRT095474- CrTYOF MONTGOMERY'e. CLEVELAND, HARRIET D

Case Details - Summary
2009TRT095474 CITY OF MONTGOMERY vs. CLEVELAND, HARRIET D

SUMMARY

Judge: MUNICIPAL JUDGE

Case Type: Traffic

Cafe Number 2009TRT095474

Uniform Case Number:

Clerk File Date: 10/22/2009

Status Date: 10/22/2009

SAO Case Number AL0030I00

Total Fees Due: 279.00

Agency: MONTGOMERY POLICE DEPARTMENT Agency Report #. N2849160

Status: COMMUTED Custody Location:

PARTIES

TYPE

PARTY NAME -

DEFENDANT CLEVELAND,HARRJErD

OFFICER DAVIS, CAMARAM

PLAINTIFF CITY OF MONTGOMERY

ATTORNEY

CHARGES COUNT DESCRIPTION 1 DRIVING WHILE-SUSPENDED (32.649)

LEVEL DEGREE PLEA msPosmoN

DISPOSITION DATE

EVENTS DATE 812112013 8:00 AM 3/23/20108:00AM 11/30/2009 8:D0 Al/I

JT
JAIL JAIL DAILY

JJUDGE
WESTRY,-MI LION J MUNICIPALJLJDGE MUNICIPAL JUDGE

OCATIOH MAIN COURTROOM MAJNCOURTROOM MAI N COURTROOM

RESULT
CONT

CASE HISTORY N UMBER

RGE DESCRIPTION _.cE STATUS 1DISPOSITION 'OUTSTANDING AMOUNT No Additional Cases

CASE DOCKETS DATE 8/21/2013

ENTRY TRANSCRIPT

8/2012013 JAIL COURTSET F0R0812112013 AT 8:00 AM IN MAIN COUITROOM

6/24/2013 ALIAS WARRANTS STATUS-SETTO RECALLED ON 06124/2013

6124/2013 COLLECTION LETTER

6/24/2013 JAIL SUMMARY MtEr

6/24/2013 ALIAS WARRANT

6124/2013

W.

T NUMBER: 13201339337

6/2412013 ALIAS WARRANTS STATUS SET1D OUTSTA DING ON 6fl412ô13 ecourt.montga.ga'BenthmarKVeWGoucase.aspi/UetailsPrint/157593

NEXT EVENT fALERTS - -
112

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 29 of 31

28/13

2009TRT095474- CITY OF MONTGOMERY vs. CLEVELAND, HARRIET D

212

W28/13

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 30 of 31
2009TRT095475- CITY OF MONTGOMERY. CLEVELAND, HARRIET D BackI

Case Details - Summary

2009TRT095475 CITY OF MONTGOMERY vs CLEVELAND, HARRIET 0

I

Judge: MUNICIPALJUDGE

Case Type: Traffic

Case Number: 2009TRTD95475

Uniform Case Number:

Clerk File Date: 10/2212009

Status Date: 10/22/2009

SAD Case Number: AL0030I0O

Total Fees Due: 179.00

Agency MONTGOMERY POLICE DEPARThEI4T Agency Report# N2849161

Status: COMMUTED Custody Location

PARTI ES

TYPE

PARTY NAME

!ATTORNEY

DEFENDANT CLEVELAND, HARRIET

OFFICER DAVIS CAMARAM

PLAIN11FF CITY OF MONTGOMERY

-

CHARGES COUNT DESCRJP11ON I FAIL POSSESS/DISPLAY INS (1STOFFEHSE) (32-7A-1 6(1))

LEVEL DEGREE PLEA D4sPosmoN DISPOSITION DATE

EVENTS

DATE

IEVENT

8/21/2013 8:00 AM

JAIL

3/23/2010 8:00 AM - JAIL

11/3012009 8:00 AM DAILY

]JUDGE WESTRY, MILTON J MUNICIPAL JUDGE MUNICIPAL JUDGE

fOCATION MAIN COURTROOM MAIN COURTROOM MAIN COURTROOM

JRESULT

-

CONT

CASE HISTORY CASE NUMBER

CHARGE DESCRIPTION

iCASE STATUS IMPOSITION jOUTSTANDING AMOUNT No Additional Cases

CASE DOCK JDATE
8/21/2013

jENTRY TRANSCRIPT

8/21)/2013 JAIL COURTSIT FOROS/21/2013AT8:OOAMINMAJNCOURTROOM

6124/2013 ALIAS WARRANTS STATUS SETTO RECALLED ON 06/24/2013

6124/2013 COLLECTION LETTER

6/24/2013 JAILSUMMARYSHEET

6/24/2013 ALIAS WARRANT

6124/2013 WARRANTNIJMBER 13201339338

6/24/2013

ALIAS WARRANTS STATUS SETTO OUTSTANDING ON 06/24/2013 rti9

NEXT EVENT1RTS 112

8/28/13

Case 2:13-cv-00732-MHT-TFM Document 1-2 Filed 10/04/13 Page 31 of 31
2009TRT095475 - CrrY OF MONTGOMERY vs. CLEVELAND, t-IARR lET 0

212

 
 Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

HARRIET DELORES CLEVELAND, )

)

Plaintiff,

)

)

vs.

)

)

CITY OF MONTGOMERY,

)

THE HONORABLE MILTON J.

)

WESTRY,

)

)

Defendants.

)

Case No. 2:13-cv-00732-MEF-TFM

AMENDED COMPLAINT

INTRODUCTION 1. Plaintiff Harriet Cleveland is an indigent woman who has been ordered1 to be

incarcerated because of her inability to pay traffic tickets, in violation of her constitutional rights

to due process, equal protection, and to counsel.

2. Plaintiff has been unable to find full time employment since she was laid off from

her job at a day care in 2009. She has been babysitting and renting out rooms in her home to

strangers in order to make ends meet. Very recently, she obtained a part time job as a custodian

at a day care.

3. In 2008 and 2009, when a police roadblock was often set up in her neighborhood,

she incurred several tickets because she could not afford car insurance. Her license was

suspended because she could not pay the steep fines and court costs. Thereafter, she obtained

tickets for driving without a suspended license when she drove to work and took her child to

school.

1 This order has not been vacated. Plaintiff was released from jail on a bond, and Defendants and the Municipal Court have agreed not to arrest her on the cases implicated by this lawsuit while it remains pending.

Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 2 of 12
4. On August 20, 2013, Plaintiff was arrested at her home for her inability to pay fines and costs associated with various traffic tickets in the Montgomery Municipal Court (“Municipal Court”).
5. Defendant, the Honorable Milton J. Westry, was presiding over the Municipal Court proceedings on August 21, 2013 and ordered Plaintiff to either pay $1,554 immediately to satisfy those fines or serve a 31 day sentence in jail. When Plaintiff told the court that she could not afford to pay the full amount on the spot, she was taken to the Montgomery Municipal Jail.
6. Plaintiff challenges these collection procedures and practices and her incarceration under the due process and equal protection clauses of the U.S. and Alabama Constitutions, and the Alabama state law implementing these provisions. See U.S. Const. amend. XIV; Ala. Const. art. I, §§ 1, 6, 22; Ala. R. Crim. P. 26.11. Although Plaintiff informed Defendant Judge Westry that she could not pay, Defendant failed to make a meaningful inquiry into Plaintiff’s financial situation and her ability to pay.
7. Plaintiff further challenges this incarceration as violating her right to counsel under the U.S. and Alabama Constitutions, as she was jailed without being provided counsel to represent her during the aforementioned proceedings or waiving that right. See U.S. Const. amend. VI; Ala. Const. art. I, § 6.
8. Plaintiff therefore asks that this Court declare that this order violates the U.S. and Alabama Constitutions and Alabama law.
PROCEDURAL HISTORY, JURISDICTION, AND VENUE 9. Plaintiff filed this action in the Circuit Court of Montgomery County on August 28, 2013. Defendants removed to this Court on October 4, 2013.
2

Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 3 of 12
10. Plaintiff brings claims arising under 42 U.S.C. § 1983 and the U.S. Constitution, which this Court has jurisdiction over pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343(a)(3). This Court has supplemental jurisdiction over all claims arising under the Alabama Constitution and laws pursuant to 28 U.S.C. § 1367.
11. Venue is proper in this District pursuant to 28 U.S.C. § 1441(a) because this Court sits in the district and division in which the state court action was pending.
PARTIES 12. Plaintiff Harriet Cleveland is a 49-year-old resident of Montgomery, Alabama. 13. Defendant City of Montgomery (“City”) is an Alabama municipal corporation organized pursuant to Act 73-618 of the Alabama Legislature and located in Montgomery County, Alabama. 14. Defendant Judge Milton J. Westry is a resident of the State of Alabama.
STATEMENT OF FACTS Order of Incarceration
15. Plaintiff Harriet Cleveland was ordered to serve 31 days in jail because of her inability to pay fines and fees on multiple traffic tickets.
16. Plaintiff incurred these traffic tickets in 2008 and 2009, when a police roadblock was often set up in her neighborhood.
17. She was jailed at least twice before for these tickets in 2009 and 2010. When she told the judge at one hearing that she could not afford to pay because she was only able to find part-time work, he told her to find another job.
3

Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 4 of 12
18. Plaintiff received a letter from the Office of the District Attorney of the Fifteenth Judicial Circuit of Alabama dated June 24, 2013, notifying her that she owed $2,714 in fines and fees on her traffic tickets. The letter, attached as Exhibit A, states that she “MUST pay this amount in full within SEVEN (7) days of the date of this notice or [she] may be ARRESTED.” (emphasis in original). It does not give any other options if Plaintiff cannot pay.
19. Plaintiff was arrested at her home on August 20, 2013, while babysitting her grandson and brought to the Montgomery Municipal Jail.
20. Plaintiff spent one night in jail and appeared before Defendant Judge Westry of the Montgomery Municipal Court on August 21, 2013. Defendant Judge Westry told Plaintiff that she must serve 31 days in jail or pay $1,554 immediately.
21. Plaintiff told Defendant Judge Westry that she previously did not have a job. She explained that she had only very recently found a part-time job that would help her make money to pay the tickets. Defendant Judge Westry conducted no further inquiry into her ability to pay now or in the past.
22. Defendant Judge Westry asked a person at the front of the courtroom, believed to be an agent of Judicial Correction Services (“JCS”), whether Plaintiff was qualified for a payment plan and when the agent said no, Plaintiff was ordered back to jail.
23. No lawyer was appointed to represent Plaintiff during this proceeding. Although an individual spoke to Plaintiff before she was called before the court, he did not tell Plaintiff that he was her attorney or represent her when she appeared before Defendant Judge Westry.
24. On the same day she was ordered to be incarcerated, Plaintiff heard Defendant Judge Westry give others the same option of paying fines immediately or serving time in jail.
4

Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 5 of 12
When one woman said that she was unable to pay, he said that she must be jailed because of a policy that he must follow.
25. A copy of the transcript given to Plaintiff, which details the court’s disposition of each of these cases,2 is attached to this Complaint as Exhibit B. Each case is listed as “commuted,” and Defendant Judge Westry’s order to either pay the fine or spend 31 days in jail is detailed at the bottom of the order.
26. Plaintiff has been told by many others that they have similarly been incarcerated because of their inability to pay fines.
Financial History and Indigency 27. Plaintiff was previously ordered to make partial payments on her fines and court
costs to Judicial Correction Services (“JCS”), a private probation company. JCS records indicate that Plaintiff’s monthly payment amount was $200 per month, of which $40 per month went directly to JCS. Plaintiff paid what she could, but almost never had the full amount every month. The Municipal Court did not conduct a review of her financial situation or ability to make those large monthly payments.
28. Plaintiff paid approximately $3,186.00 to JCS over the time of her probation, which went toward fines and costs owed for these cases and for other cases that have since been closed. In early 2012 she used almost her entire income tax return to pay a large amount to JCS. However, after that, she was unable to continue making payments, as her income was already insufficient to cover her expenses. JCS recommended that she be removed from probation in July 2012, noting in its report to the court that Plaintiff had no income and lost her house.3
2 The case numbers are 2008TRT029308; 2009TRT022302; 2009TRT034595; 2009TRT035054; 2009TRT047492; 2009TRT095474; 2009TRT095475; and 2009TRT106724. 3 Plaintiff was facing foreclosure, but had not actually lost her home yet.
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29. The court files for the cases on which Plaintiff was jailed do not contain records of the entire amount paid to JCS towards her fines and court costs. Upon information and belief, the court files do not reflect the amounts that Plaintiff actually owes, since at least one case for which Plaintiff was jailed appears to have already been paid in full.
30. Plaintiff has been unable to find full-time work for years. Plaintiff lost her full time job at a daycare in 2009, and was able to obtain only a part time job over the next year until she was again laid off from that job.
31. Since that time, she has made some money for daily necessities by babysitting and by renting out two rooms of her home to strangers. She lost one babysitting job when she was jailed in August 2013.
32. Plaintiff was able to obtain a part-time job cleaning a daycare just before she was imprisoned. She walks to this job every weekday, as she is unable to obtain a license because of her outstanding fines and unable to afford daily bus fare. She continues to look for a full-time job or additional work.
33. After years without a full-time job, Plaintiff is left without resources to pay for daily necessities. She filed for bankruptcy in June 2013. Under her Chapter 13 plan, she must make monthly payments of $250.00 to the Chapter 13 trustee and additional payments of over $600 to remain current on her mortgage and cure her past default. She fell behind on these payments in August 2013 when she was in jail and unable to work, and is facing the imminent loss of her home.
6

Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 7 of 12
Policies and Practices of the City of Montgomery and Judges of the Municipal Court 34. It is the policy and practice of Defendants to offer an alternative sentence to those
who have not paid outstanding fines and court costs—requiring them to either pay the amount owed immediately or “sit out” the time in jail at a rate of $50 per day.
35. When individuals are first sentenced or plead guilty and are unable to pay fines and court costs, these individuals are assigned to probation with JCS, under general practice and the Municipal Court’s standing orders. Individuals must make monthly payments to JCS that include monthly supervision fees of $40. When these individuals fail to make their payments, JCS reports back to the Municipal Court, triggering further proceedings in the Municipal Court to collect what is owed.
36. The Municipal Court does not conduct indigency determinations or explain how an individual may claim indigency if s/he is unable to pay either when the person is initially assigned to JCS or facing jail time for nonpayment. This is true even when it has been reported to the court that a person, such as Plaintiff, has no income and is facing other financial difficulties.
37. The City’s “Amnesty Program” further demonstrates Defendants’ practice of jailing persons who are unable to pay. In May 2013, Montgomery Mayor Todd Strange and Ken Nixon, the City’s Municipal Court Administrator and member of the Mayor’s cabinet, announced that the Municipal Court would offer an amnesty program on the first two Saturdays in June. Under this program, the court would, theoretically, remove certain fees, eliminate arrest warrants, and institute a payment plan if individuals were unable to pay the full amount owed.
38. However, at least 15 people were arrested on the first day of the Amnesty Program because they had too much money outstanding (greater than $2,500) or did not have at
7

Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 8 of 12
least $150 (or 10% of what was owed, if greater) to pay towards their fines. Mr. Nixon publicly acknowledged that the arrests probably scared others from participating.
39. Mr. Nixon warned that, following the Amnesty Program, the City would be even stricter about arresting people with outstanding warrants. Later that same month, Plaintiff received a letter from the district attorney regarding her nonpayment. It threatened arrest, without informing her that she may not be jailed if she was found indigent. (Ex. A.) She was arrested approximately two months later.
40. Over the past years, Plaintiff has witnessed and heard of many others who were not represented by counsel during the proceedings in which they were jailed, and during which no indigency determinations were conducted. In fact, as stated above, on the day that she was ordered to be incarcerated, she heard Defendant Judge Westry tell another woman that he had to enter such an order according to a policy that he must follow.
41. The City of Montgomery relies on the Municipal Court to provide money not only for the court’s own expenses, but to pay for the Municipal Jail and for general fund expenses.
42. Defendants’ policy is to charge court costs on every individual ticket, as was done in Plaintiff’s cases, even if multiple tickets arise from the same incident. But see Ala. Code § 1219-150(c) (“For the purpose of assessing fees in criminal cases, a case shall include all offenses arising out of the same incident. Fees shall be assessed on the basis of the most serious offense of which the defendant is convicted, provided, that the judge may, in his discretion, assess costs for each conviction.” (emphasis added)).
8

Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 9 of 12
CLAIMS COUNT I Declaratory Judgment of Violation of Plaintiff’s Rights under the Fourteenth Amendment and 42 U.S.C. § 1983 (28 U.S.C. §§ 2201–2202) 43. Plaintiff re-alleges and incorporates herein by reference the allegations set forth in paragraphs 1 through 42. 44. Under 28 U.S.C. §§ 2201–2202, Plaintiff seeks a declaration that Defendants’ actions, policies, and practices that led to her incarceration for her inability to pay traffic tickets violated the rights to due process and equal protection contained in the Fourteenth Amendment of the United States Constitution. 45. The U.S. Supreme Court has consistently held that the Fourteenth Amendment prohibits treating indigent criminal defendants differently than those who are able to pay or automatically converting a fine-only sentence to a sentence of imprisonment without an inquiry into their ability to pay. 46. Defendants’ actions in violating Plaintiff’s constitutional rights also constitute violations of 42 U.S.C. § 1983. Defendants were acting under color or law when their actions, policies, or practices caused Plaintiff’s confinement. 47. There is a substantial continuing controversy, and Plaintiff will suffer further imminent injury if she is required to serve the remainder of her sentence. Defendants have not vacated the order confining Plaintiff or promised not to enforce it, but instead have agreed to stay the remainder of the incarceration period and other post-conviction collections until this Court has ruled on this case.
9

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COUNT II Declaratory Judgment of Violation of Plaintiff’s Rights under the Sixth Amendment and 42
U.S.C. § 1983 (28 U.S.C. §§ 2201–2202) 48. Plaintiff re-alleges and incorporates herein by reference the allegations set forth in paragraphs 1 through 47. 49. Under 28 U.S.C. §§ 2201–2202, Plaintiff seeks a declaration that Defendants’ actions, policies, and practices that led to her incarceration violated the right to counsel contained in the Sixth Amendment of the United States Constitution. 50. Defendants violated Plaintiff’s right to counsel through their actions, policies, and practices that led to the failure to appoint counsel to represent her in her proceedings before the Municipal Court. Plaintiff was actually imprisoned, and did not knowingly, intelligently, or voluntarily waive her right to counsel. 51. Defendants’ actions in violating Plaintiff’s constitutional rights also constitute violations of 42 U.S.C. § 1983. Defendants were acting under color or law when their actions, policies, or practices caused Plaintiff’s confinement. 52. There is a substantial continuing controversy, and Plaintiff will suffer further imminent injury if she is required to serve the remainder of her sentence. Defendants have not vacated the order confining Plaintiff or promised not to enforce it, but instead have agreed to stay the remainder of the incarceration period and other post-conviction collections until this Court has ruled on this case.
COUNT III Common Law Certiorari 53. Plaintiff re-alleges and incorporates herein by reference the allegations set forth in paragraphs 1 through 52.
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54. Plaintiff requests review in the nature of certiorari to determine whether the order of incarceration violated Plaintiff’s rights under the U.S. and Alabama Constitutions and Alabama law.
55. Defendants violated Plaintiff’s constitutional rights to due process, equal protection, and counsel as explained in the preceding paragraphs, including the equivalent protections under the Alabama Constitution, Ala. Const. art. I, §§ 1, 6, 22. Their actions, policies, and practices also violated her rights to an examination into her ability to pay before incarceration and not to be incarcerated as an indigent person under Rule 26.11 of the Alabama Rules of Criminal Procedure, Ala. R. Crim. P. 26.11(g), (h), (i).
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays for relief as follows:
a. A declaration that Defendants violated Plaintiff’s Fourteenth Amendment rights under the U.S. Constitution and 42 U.S.C. § 1983;
b. A declaration that Defendants violated Plaintiff’s Sixth Amendment rights under the U.S. Constitution and 42 U.S.C. § 1983;
c. A declaration, pursuant to certiorari review, that Defendants violated Plaintiff’s rights under the U.S. and Alabama Constitutions and Alabama law;
d. An order awarding reasonable attorneys’ fees under 42 U.S.C. § 1988; and e. Other and further relief as the Court deems just and proper.
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Case 2:13-cv-00732-MHT-TFM Document 10 Filed 11/12/13 Page 12 of 12
Dated this 12th day of November, 2013.
Respectfully submitted, /s/ Sara Zampierin____________ Sara Zampierin, Ala. Bar No.1695-S34H Southern Poverty Law Center 400 Washington Avenue Montgomery, Alabama 36104 Telephone: (334) 956-8200 Fax: (334) 956-8481 Email: sara.zampierin@splcenter.org Attorney for Plaintiff
CERTIFICATE OF SERVICE I hereby certify that on this 12th day of November, 2013, I have filed a copy of the foregoing Amended Complaint with the Clerk of Court by means of CM/ECF, which provides electronic copies of the foregoing to the following counsel for Defendants. Jason Cole Paulk, Esq. City Attorney's Office Post Office Box 1111 Montgomery, AL 36101-1111 jpaulk@montgomeryal.gov
/s/ Sara Zampierin Sara Zampierin
12

 
 Case 2:13-cv-00732-MHT-TFM Document 56 Filed 09/12/14 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

)

HARRIET DELORES CLEVELAND,

)

)

Plaintiff,

)

)

vs.

) Case No: 2:13-cv-732- MHT-TFM

CITY OF MONTGOMERY, et al.,

)

)

Defendants.

)

)

_____________________________________ )

)

MARKIS ANTWUAN WATTS,

)

)

Plaintiff,

)

)

vs.

) Case No: 2:13-cv-733-MHT-TFM

)

CITY OF MONTGOMERY, et al.

)

)

Defendants.

)

)

AMENDED JOINT MOTION FOR ENTRY OF AGREED SETTLEMENT ORDER

1. Plaintiffs allege that they were illegally jailed for their inability to pay outstanding

fines, fees, and costs in the Montgomery Municipal Court, in violation of the Fourteenth and

Sixth Amendment to the U.S. Constitution, sections 1, 6, and 22 of the Alabama Constitution,

and Rule 26.11 of the Alabama Rules of Criminal Procedure.

2. Defendants City of Montgomery (“City”), Municipal Court Judge Hayes, and

Municipal Court Judge Westry deny Plaintiffs’ allegations, including that the City has any

control over, or responsibility for, the Municipal Court Judges’ exercise of their judicial

functions, the rulings of the Judges, or the procedures utilized in the Montgomery Municipal

Court.

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Case 2:13-cv-00732-MHT-TFM Document 56 Filed 09/12/14 Page 2 of 4
3. All Parties agree that, under the current status of the law, the constitutional principles set out in Bearden v. Georgia, 461 U.S. 660 (1983), regarding incarceration for nonpayment; and Turner v. Rogers, 131 S. Ct. 2507 (2011), regarding notice apply in Municipal Court proceedings, and, to the extent applicable in a particular case, the Judges of the Montgomery Municipal Court are legally required to follow them.
4. Defendants represent that the Judges of the Municipal Court of Montgomery, Alabama, in their official capacities, have implemented Judicial Procedures of the Municipal Court of the City of Montgomery for Indigent Defendants and Nonpayment (hereinafter “Judicial Procedures”) effective one week from the date of entry of this Court’s Order granting this motion, to determine whether a person may be incarcerated for non-payment of fines, costs, and restitution. A copy of the Judicial Procedures is attached as Exhibit A, and all Parties agree that the Judicial Procedures facially comply with the requirements of the Fourteenth and Sixth Amendments of the U.S. Constitution, sections 1, 6, and 22 of the Alabama Constitution, and Rule 26.11 of the Alabama Rules of Criminal Procedure regarding incarceration for nonpayment of fines, costs and restitution.
5. Plaintiffs’ claim for attorney’s fees has been resolved between the Parties. 6. Entry of the order requested herein will resolve all disputes between the Parties complained of in the above-styled cases, and all claims that could arise out of the events of August 2013 at issue in these cases. 7. The Parties request that the Court enter an order which:
a. Declares that, under the current status of the law, the constitutional principles set out in Bearden v. Georgia, 461 U.S. 660 (1983), regarding incarceration for nonpayment; and Turner v. Rogers, 131 S. Ct. 2507 (2011), regarding notice, and, to the extent
2

Case 2:13-cv-00732-MHT-TFM Document 56 Filed 09/12/14 Page 3 of 4

applicable in a particular case, the Judges of the Montgomery Municipal Court are legally

required to follow them;

b. Declares that the Judicial Procedures attached as Exhibit A facially

comply with the constitutional principles set out in Bearden v. Georgia, 461 U.S. 660 (1983),

regarding incarceration for non-payment; and Turner v. Rogers, 131 S. Ct. 2507 (2011),

regarding notice;

c. Declares that the Judicial Procedures attached as Exhibit A facially

comply with the requirements of the Fourteenth and Sixth Amendments to the U.S. Constitution,

sections 1, 6, and 22 of the Alabama Constitution, and Rule 26.11 of the Alabama Rules of

Criminal Procedure; and

d. Provide that entry of the requested Order shall constitute a final resolution

as to all claims in the above-styled cases.

Respectfully submitted,

s/ Samuel Brooke Sara Zampierin, Esq. Samuel Brooke, Esq. David Carter Dinielli Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 Email: samuel.brooke@splcenter.org Email: sara.zampierin@splcenter.org Email: david.dinielli@splcenter.org

ATTORNEYS FOR PLAINTIFFS

s/ Shannon L. Holliday Shannon L. Holliday (HOL088) Robert D. Segall (SEG003) Copeland Franco Screws & Gill, P.A. Post Office Box 347 Montgomery, AL 36101-0347 Phone: (334) 834-1180 Email: holliday@copelandfranco.com Email: segall@copelandfranco.com

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Case 2:13-cv-00732-MHT-TFM Document 56 Filed 09/12/14 Page 4 of 4
s/ Jason C. Paulk Jason C. Paulk Legal Department City of Montgomery Post Office Box 1111 Montgomery, AL 36101-1111 Email: jpaulk@montgomeryal.gov
ATTORNEYS FOR DEFENDANTS

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this date the foregoing was filed through the Court’s CM/ECF filing system, and that by virtue of this filing notice will be sent electronically to all counsel of record.

Dated: September 12, 2014

/s/ Samuel Brooke

4

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 1 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 1 of 11
BASIC PREMISES:
1. No defendant will be incarcerated for inability to pay any court-ordered monies, including fines, court costs or restitution. (Rule 26.11, Ala. R. Crim. P.).
2. A Public Defender will represent all defendants not otherwise represented by counsel at all compliance and indigence/ability-to-pay hearings. At said hearings, the judge will require that the Public Defender appear with the Defendant in front of the judge, and the Court will note the Public Defender’s appearance in the record.
3. Procedures involving initial appearances at the window are applicable to those defendants appearing on or before the due date indicated on the Uniform Traffic Ticket and Complaint (“UTTC”).
4. The granting of an initial sixty (60) day review will be afforded to all cases (new and old) as the procedures are implemented.
5. Form One (Payment of Fines and Costs) will be placed on the City of Montgomery website, displayed conspicuously in the Court and Lobby of the Municipal Court, and provided to defendants at their initial appearance if they are provided a compliance hearing along with Form Two (Order for Compliance Review).
6. The Court will use the current Federal Poverty Level (“FPL”) chart when making an indigence determination, and there will be a presumption of indigence when a defendant is at or below 125% of the FPL subject to review of his or her assets.
7. The defendant will fill out an Affidavit of Substantial Hardship (Form C-10A) or any updated version of the same, and the inquiry relative to income and assets will follow from the information provided therein. A public Defender will be available to answer any questions about the form.
8. A defendant at 125% of FPL or below without substantial liquid assets available to pay the fines, costs, fees, or restitution will be deemed indigent. In determining whether a defendant has substantial liquid assets, the Court will not consider up to the first $3,000 in personal property, and up to $5,000 in home equity. A finding of substantial liquid assets cannot be based on the receipt of an Earned Income Tax Credit.
9. An indigent defendant will be given the option of either paying $25.00 a month to pay off his fines, court costs, fees, and restitution or doing community service.
10. The Court retains the discretion to make credibility determinations relative to testimony and evidentiary submissions regarding income and assets and to question defendants relative to the same.
11. The ability of a defendant to pay who is not deemed indigent but who expresses an inability to pay his fines, costs, fees and restitution in full will be based on that defendant’s: (i) disposable income, as reflected in the Affidavit of Substantial Hardship (Form C-10A) and as further clarified by questions raised in the indigence hearing, (ii) the defendant’s assets, and (iii) the defendant’s earning potential.
12. The community service hours’ computation will be based on a minimum of $10 credit for each hour of community service worked. The monthly requirements will be a minimum of eight (8) hours and a maximum of twenty-four (24) hours of community
EXHIBIT A

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 2 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 2 of 11
service, provided, however, that the court may order more hours of monthly community service at the request of the defendant. 13. The court record shall contain an explanation of any determination of non indigence. 14. The Court or its designee will designate the entity with which the defendant assigned to community service must work, taking into account the needs of the City for community service, the needs of the other entities providing community service opportunities, and the defendant’s needs. 15. Defendants who do not initially pay in full are provided Forms One and Two attached hereto which provide notice regarding the procedures set out herein and defendants’ rights. 16. No person may be incarcerated for nonpayment in any case unless these procedures are followed. 17. The payment of restitution as ordered by the court cannot be satisfied by the performance of community service, unless the restitution is owed to the City. 18. The present language of Rule 19(C)(2) of the Rules of Judicial Administration authorizes an increase in the fine only when there is a failure to appear at the initial appearance (pre-judgment) on the ticket. 19. After an initial ability to pay or indigence determination, a defendant’s ability to pay may be re-assessed at subsequent compliance hearings based on changed circumstances or at the Court’s discretion following the procedures set forth herein. 20. No person unable to pay his or her fines and costs in full will be charged an additional fee for being placed on a payment plan unless affirmatively authorized by law.

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 3 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 3 of 11

FIRST COURT APPEARANCE WITH ADJUDICATION OR PLEA OF GUILTY

1. Plea of guilty entered at the window (scheduled offenses only)

a. Obtain signature on Plea of Guilty/Waiver of Rights Form

b. Collection of scheduled fine and court costs

i.

If paid in full, close case and issue receipt.

ii. If unable to pay on the same day, the defendant will be given an (approximate) sixty (60) day review by the Court at a compliance hearing (Forms One and Two provided).

2. Plea of guilty entered or adjudicated in Court (scheduled and non scheduled offenses)

a. Judge orally receives guilty plea or adjudication of guilt

b. Imposition of Sentence (possible fine, court costs and jail sentence)

i.

If it is determined that the conduct for which the defendant has been

convicted warrants the imposition of a jail sentence, the sentence shall be

carried out as directed by the Court. The imposition of a jail sentence will

have nothing to do with a defendant’s inability to pay the fines and court

costs.

ii. If able to pay the fine and court costs on the same day, the defendant may be directed to the pay window or otherwise informed how to make payment. The full amount is paid and the case is closed.

iii. If the defendant tells the Court that he or she is unable to pay on the same day, the defendant will be given the following options and/or ordered as follows: placed on a payment plan and given a compliance hearing date; given an approximate sixty (60) day review by the Court at a compliance hearing; given an order to complete community service; or any other disposition deemed just and appropriate at the discretion of the Court, excluding incarceration. (Forms One and Two to be provided)

(a) It will not be a standard practice to hold an indigence /ability-topay hearing at this stage of the proceedings. However, the Court reserves the option to do so and, where the defendant is found indigent, to provide the defendant the option of the minimum payment plan or community service at this stage and to enter an order consistent with the option chosen.

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 4 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 4 of 11

COURT APPEARANCE – COMPLIANCE REVIEW DATES

1. If the defendant does not appear (and the defendant has not received a continuance from the Court) a warrant will be issued.

2. The defendant must be given an opportunity to present evidence that the amount allegedly owed is not accurate or is not in fact owed if the Defendant believes that the amount is not correct.

3. If the defendant has not paid in full the Court will inquire as to the reasons for noncompliance, including whether the defendant has an inability to pay the amount then due. During this inquiry the Court will specifically ask questions pertaining to the defendant’s ability or inability to pay the amount owed in full. One of the initial questions asked in connection with the ability to pay inquiry will be “Are you able to pay today?” or words to that effect.

4. If after inquiry by the Court, there is

a. No indication of inability to pay, the defendant may be placed on a payment plan by the Court; given another review date set as a compliance hearing (Forms One and Two provided); sentenced to serve time in jail (but not without an indigence/ability-to-pay hearing described below); or given any other disposition deemed just and appropriate at the discretion of the Court.

b. An indication of inability to pay

i.

the defendant will be directed to a Public Defender to assist with the

completion of an Affidavit of Substantial Hardship Form and any further

paperwork the Court deems necessary;

ii. the Court will then hold a hearing at which the Public Defender will represent the defendant, and the Court will make an indigence/ability to pay determination taking into consideration any testimony, the Affidavit of Substantial Hardship, any other paperwork the Court deems necessary, and any documents submitted by the defendant. The defendant will be permitted to present evidence. If, after questioning (including questioning by the Court) and presentation of evidence, the defendant is

(a) determined to be at or below 125% of the Federal Poverty Level (FPL), the defendant will be determined to be indigent and unable to pay the fines, fees, court costs, and/or restitution in full at the Compliance Hearing, unless the defendant has substantial liquid assets with which he or she could satisfy the payments. In determining whether a defendant has substantial liquid assets, the Court will not consider up to the first $3,000 in personal property,

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 5 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 5 of 11
and up to $5,000 in home equity. A finding of substantial liquid assets cannot be based on the receipt of an Earned Income Tax Credit.
(b) determined to be above 125% of the FPL, the defendant will not receive a presumption of indigence, but the Court will still consider whether the defendant has the ability to pay based on the defendant’s disposable income, liquid assets, and earning potential.
iii. If the defendant is determined to be indigent or otherwise unable to pay the amount owed for fines, fees, court costs, and/or restitution in full as ordered, the Court:
(a) may determine the defendant’s ability to make payments based on that defendant’s: (i) disposable income, as reflected in the Affidavit of Substantial Hardship and any other paperwork required by the Court, and as further clarified by answers to questions posed in the hearing, (ii) the defendant’s assets, and (iii) the defendant’s earning potential; order the defendant to make payments consistent therewith; and schedule a review at another compliance hearing (Forms One and Two provided). However the Court will not order a monthly payment in excess of $25.00 for indigent defendants;
(b) may remit costs and fines;
(c) must (unless fines and costs are remitted in full) provide a defendant deemed indigent or otherwise unable to pay the $25.00 minimum monthly payment, the option to complete community service (if physically able) in lieu of payment of costs and fines and schedule a review at another compliance hearing, provided that: (i) if a defendant who has previously been placed on a payment plan fails to make one or more payments, the Court may order said defendant to complete community service (if physically able) to satisfy his or her debt; and (ii) that community service will not be an option for satisfaction of amounts owed for restitution, unless restitution is owed to the City (Forms One and Two provided); and/or
(c) may order any other remedy deemed just and appropriate at the discretion of the Court, excluding incarceration.
iv. If the defendant is determined in the indigence/ability-to-pay hearing to have had the ability to pay as ordered (including individuals previously placed on a payment plan), the Court may:

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 6 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 6 of 11
(a) place the defendant on a payment plan or modify the existing payment plan and schedule a review at another compliance hearing in approximately sixty days (60) (Forms One and Two provided);
(b) give the defendant another review date set as a compliance hearing (Forms One and Two provided);
(c) order the defendant to complete community service (if physically able) in lieu of payment of costs and fines and schedule a review at another compliance hearing (Forms One and Two provided);
(d) remit costs and fines;
(e) order the defendant to serve jail time with fines and costs reduced per day at an amount no less than that allowed by Ala. R. Crim. P. 26.11 (Public Defender present unless otherwise represented) if there is a finding of willful nonpayment provided that the days to which the defendant is sentenced do not exceed the number of days required to work off the amount then currently due and owing; and/or
(f) provide any other disposition deemed just and appropriate at the discretion of the Court.
5. If the defendant was ordered to do community service in lieu of paying, the Court may, upon the defendant’s failure to comply, set a contempt hearing to determine if the defendant should be sanctioned. The Court will comply with the requirements of Ala. R. Crim. P. 33, including, but not limited to, providing notice, hearing, and written findings. The Court will remit additional fines and costs associated with any contempt conviction and will remit the original fines, fees, and costs in connection with any jail sentence given for contempt at the same rate as that provided defendants jailed pursuant to Ala. R. Crim. P. 26.11.

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 7 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 7 of 11
MISCELLANEOUS PROCEDURES
In addition, the Judges of the Court will:
1. provide notice of a compliance hearing, as set out in these procedures, to all defendants on a Judicial Correction Services payment plan or contract as of June 2014;
2. treat probationers as set out in the above procedures if and when probation is subject to revocation for nonpayment of fines, costs, fees or restitution;
3. treat those who are currently on payment plans as set out in the above procedures;
4. have the Public Defender inform any defendant not otherwise represented by counsel of his or her appellate rights and provide said defendant Form 3 should he or she be sentenced to jail for failure to pay fines, costs, fees or restitution;
5. instruct the clerks to provide defendants who have failed to appear as required by their UTTC (uniform traffic ticket and complaint) with a license reinstatement letter (if the Court has notified the Alabama Department of Public Safety of the failure to appear) upon the defendant’s first voluntary appearance at a compliance hearing or upon full payment of costs, fines, fees or restitution, whichever occurs first; and
6. permit a defendant who has failed to appear at his or her initial appearance date for a scheduled traffic offense and who is subject to an arrest warrant for the same, to appear at the window at the Court and not be arrested on that warrant but instead to be provided a compliance hearing date; and
7. instruct the clerks that no warrant for failure to appear shall be confirmed unless it is supported in the Court’s file by notification from the Court or notification in a charging instrument which notification provides a specific date and time for a court hearing.

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 8 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 8 of 11

FORM ONE

Payment of Fines and Costs

If at any time you cannot pay your fines and costs as ordered by the Court, you may go before the Court at your Compliance Hearing to discuss your financial situation, to ask that the Court’s Order be changed (for example, to ask that you pay less) and/or to explain why you are unable to pay. The time and date of your Compliance Hearing before the Court will be provided to you in a Court Order given to you.

If you indicate that you are unable to pay your fines and costs, the Court will order you to complete an Affidavit of Substantial Hardship and other forms as deemed necessary, and may inquire about your finances, to include but not be limited to: income, expenses (i.e. rent, childcare, utilities, food, clothing, medical condition/bills, transportation, etc.), bank accounts, and other assets. In some circumstances, the Court may also inquire about your efforts to obtain the money to pay, including your job skills and efforts to apply for jobs. You should present any documents that you have to the Court during this inquiry. If you cannot afford an attorney, the Court will provide a Public Defender to represent you.

Based on your income, you may be ordered to perform community service or be placed on a monthly payment plan. You will be given a Compliance Hearing date to return to Court for the Judge to review your particular case(s). Your appearance at this Compliance Hearing is mandatory.

You cannot be put in jail solely for your inability to pay your fines and costs, or for nonperformance of community service, unless you willfully failed to pay or to perform the community service ordered despite having the ability to do so.

You may pay the full amount you owe at any time in accordance with the Court’s Order, and at that point you will not have to continue to make payments, finish your community service, or appear at your next scheduled Compliance Hearing. You may contact the Court or inquire at a Municipal Court pay window if you would like to obtain your balance owed.

If the Court determines that you have a disability, illness, or other circumstances that would prevent you from performing community service, you will not be required to perform community service.

In summary, after you have been ordered by the Court to pay your fines and court costs or to perform community service, you will be given a Compliance Hearing date to come back to Court to review your case(s). This hearing is mandatory. Even if you are unable to pay all of your fines and costs or complete the hours ordered before that date, you must attend. At this Hearing, you will have the opportunity to explain to the Court why you have not complied with the Court’s Order(s) and present evidence. You could be put in jail only if the Court determines that you willfully violated the Court’s Order. If you do not appear at your Compliance Hearing, a
warrant will be issued for your arrest.

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 9 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 9 of 11

FORM TWO

Municipal Court
City of Montgomery 320 North Ripley Street Montgomery, AL 36104

ORDER SETTING HEARING FOR COMPLIANCE REVIEW
IN THE MUNICIPAL COURT OF MONTGOMERY, ALABAMA MUNICIPALITY OF MONTGOMERY V. ADULT NWS TEST JR, DEFENDANT

To the Defendant of the Case listed below:

Case#

Officer

1999CRA999999

Jane Roe

THEFT OF PROPERTY 3

Attorney

Balance Due $332.00

Court Date-Hearing Friday, August 31, 2012 8:00 am

If your address changes, you shall provide notification to the court immediately.

You must attend the court hearing on the date and time referenced above unless you have paid in full your fines and court costs or completed and submitted proof of completed community service.

Your ability to pay is a critical issue in this hearing. If you are unable due to no fault of your own to pay the court costs and fines or to perform community service as ordered by the Court by the above referenced date, you may testify at this hearing and should bring with you any records to help explain the reasons for your nonpayment or nonperformance to include, but not limited to, pay stubs, utility bills, expenses, federal and state tax returns, medical bills, documents evidencing any medical condition, any evidence of efforts to gain employment, etc. If you cannot afford an attorney, a Public Defender will be provided to assist and represent you.

If, at the time of the hearing, you have failed to pay the full court costs, fines, fees or restitution ordered by the Court or have failed to meet the requirements of your payment plan, you may be sentenced to jail after the hearing for failure to pay, but only if you are found to have had the ability to pay. If you have previously been ordered to perform community service and have failed to perform community service as ordered by the Court and are found to have had the ability to do so, you may be held in contempt of court only after notice and a hearing.

If you are on probation, your probation can also be revoked and you may be jailed for failing to comply with the other terms of your probation.

If you believe the “Balance Due” amount is incorrect, you may request a balance history (both fines/fees/costs added and payments received) from a Clerk at the Window in the Municipal Court. If you still believe the “Balance Due” amount is incorrect you may discuss it with the

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 10 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 10 of 11
Clerk at the Window. You may also discuss it with the Public Defender, and raise it with the Judge.
IF YOU FAIL TO ATTEND COURT ON THE DATE REFERENCED ABOVE, A WARRANT WILL BE ISSUED AND ADDITIONAL CHARGES MAY BE INITIATED.

May 22, 2012

_______________________ Municipal Court Judge

Case 2:13-cv-00732-MHT-TFM Document 56-1 Filed 09/12/14 Page 11 of 11
JUDICIAL PROCEDURES OF THE MUNICIPAL COURT OF THE CITY OF MONTGOMERY FOR
INDIGENT DEFENDANTS AND NONPAYMENT Page 11 of 11
FORM THREE
Notice of Appeal Rights
You have a right to appeal the decision of the Montgomery Municipal Court. If you file an appeal, the Montgomery County Circuit Court will review your case.
Under Alabama law, you have 14 days from the date of your trial/hearing in which to file your appeal. If you wish to file an appeal, you should tell your Municipal Court attorney or the public defender that you wish to file an appeal and you may speak to the Public Defender about how to do so.
When you file an appeal, you ordinarily must file an appeal bond. The amount of the appeal bond varies, depending upon the particular offense. If you cannot afford the cost of an appeal bond, you have a right to have a hearing before the judge for the judge to decide if you do not have to file an appeal bond and can file your appeal for free. You must fill out an affidavit of substantial hardship if you have not already done so.
If you are in jail and file an appeal, you will be released from jail once your appeal bond is posted with the court or when the Court determines that no bond is required.

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

)

HARRIET DELORES CLEVELAND,

)

)

Plaintiff,

)

)

vs.

) Case No: 2:13-cv-732- MHT-TFM

)

CITY OF MONTGOMERY, et al.,

)

)

Defendants.

)

_____________________________________ )

)

MARKIS ANTWUAN WATTS,

)

)

Plaintiff,

)

)

vs.

) Case No: 2:13-cv-733- MHT-TFM

)

CITY OF MONTGOMERY, et al.

)

)

Defendants.

)

)

JOINT BRIEF IN SUPPORT OF THE PARTIES’ AMENDED JOINT MOTION FOR ENTRY OF AGREED SETTLEMENT ORDER

During a telephone conference held on September 3, 2014, the Parties offered to submit

an amended motion and briefing to provide background information and support for the relief

requested. As explained below, the Court may enter the declarations requested by the parties and

resolve the cases with a final judgment order.

CASE ALLEGATIONS

Plaintiffs Harriet Cleveland and Markis Watts allege that they were both given tickets,

were sentenced to pay fines and costs on said tickets, failed to pay the fines and costs, and were

jailed in the Montgomery Municipal Court in August, 2013. Plaintiffs were given credit for each

1

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 2 of 12
day of incarceration, at a rate of $50 per day, to pay off their outstanding fines. Cleveland First Am. Compl. ¶¶ 5, 34 (No. 2:13-cv-732, ECF No. 10); Watts First Am. Compl. ¶¶ 17, 26 (No. 2:13-cv-733, ECF No. 9). Plaintiffs alleged that Defendants Municipal Court Judge Westry and Chief Judge Hayes violated the Fourteenth Amendment and Sixth Amendment to the U.S. Constitution, as well as Article I Sections 1, 6, and 22 of the Alabama Constitution and Rule 26.11 of the Alabama Rules of Criminal Procedure, by jailing them without conducting an indigency determination, as required by Bearden v. Georgia, 461 U.S. 660 (1983); by failing to provide meaningful notice in advance of the hearing where they were ordered incarcerated, as required by Turner v. Rogers, 131 S. Ct. 2507 (2011); and by failing to provide an attorney to represent them in these hearings. Cleveland First Am. Compl. ¶¶ 43–55; Watts First Am. Compl. ¶¶ 35–47. Plaintiffs alleged that these violations were part of a policy and practice by the Defendants Westry and Hayes as well as Defendant City of Montgomery. Cleveland First Am. Compl. ¶¶ 34–42; Watts First Am. Compl. ¶¶ 26–34. Defendants dispute these factual allegations.
CASE PROCEDURAL HISTORY While in custody in the Montgomery Municipal Jail, Plaintiffs filed petitions for writ of certiorari, or in the alternative, writs of mandamus, in state court, which Defendants removed to federal court. See Notice of Removal (Cleveland, No. 2:13-cv-732, ECF No. 1; Watts, No. 2:13cv-733, ECF No. 1). Plaintiffs then filed first amended complaints seeking declaratory relief and attorneys’ fees and costs, Defendants answered, and the matters were consolidated. First Am. Compls. (Cleveland, No. 2:13-cv-732, ECF No. 10; Watts, No. 2:13-cv-733, ECF No. 9); Order
2

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 3 of 12
Consolidating Cases (ECF No. 13);1 Answer (ECF No. 15). Defendants agreed to stay the orders
of incarceration and collection of all amounts owed by Plaintiffs during the course of this federal
litigation.
The Parties commenced discovery. While that continued, the case Mitchell v. City of
Montgomery, No. 2:14-cv-186, was filed. The Mitchell case raises similar claims to the instant
cases, but additionally sought injunctive relief and monetary damages. In the Mitchell case a
preliminary injunction order was entered, in which the Court enjoined the City of Montgomery
from collecting fees from the Mitchell plaintiffs, and ordered the City of Montgomery to
submit to the Court a comprehensive plan listing the current or proposed policies and procedures the City follows or intends to follow in making future determinations of an individual’s ability to pay, the policies and procedures the City follows or intends to follow in making future determinations as to reasons for an individual’s failure to pay, the policies and procedures the City follows or intends to follow in making future determinations of any alternative measures of punishment other than imprisonment for the non-payment of fines, and the policies and procedures the City follows or intends to follow in making future determinations of whether these alternative measures are adequate to meet the City’s interests in punishing and deterring the non-payment of fines, which shall comply with all applicable federal and state laws and the Alabama Rules of Criminal Procedure.
Mitchell Order ¶¶ 1–2 (No. 2:14-cv-186, ECF No. 18). The Court further provided a briefing
schedule and set a hearing to evaluate the constitutionality of the comprehensive plan. Id. ¶¶ 3–
4.
Plaintiffs Cleveland and Watts obtained permission to participate in briefing and the
proposed hearing regarding the comprehensive plan contemplated in the Mitchell Order. See
Order (ECF No. 35). The Mitchell, Cleveland, and Watts Parties then agreed to engage in a
private mediation to attempt to develop a comprehensive plan to which all Parties could agree
1 Docket entries for everything including and after the Order Consolidating Cases are based on the lead case, Cleveland, No. 2:13-cv-732.
3

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 4 of 12
would facially satisfy the relevant constitutional requirements. (See ECF Nos. 44, 45, 49). As a
result of the mediation and related negotiations, the Mitchell, Cleveland, and Watts Parties
agreed upon a set of procedures that they believe facially comply with the federal and Alabama
Constitution, as well as applicable Alabama state law and rules of procedure. Those procedures
are attached as Exhibit A to the amended motion.
DECLARATIONS REQUESTED IN THE AMENDED MOTION
The parties request that the Court issue certain declarations under 28 U.S.C. § 2201 to
resolve disputes between the Parties as to what would constitute facially legally permissible Municipal Court proceedings.2 Upon the issuance of such declarations, all disputes between the
Parties arising out of the claims in this case will be resolved, and the Court can issue a final
judgment.
First Declaration Related to Constitutional Principles
The Parties first ask the Court to declare that:
under the current status of the law, the constitutional principles set out in Bearden v. Georgia, 461 U.S. 660 (1983), regarding incarceration for non-payment; and Turner v. Rogers, 131 S. Ct. 2507 (2011), regarding notice, and, to the extent applicable in a particular case, the Judges of the Montgomery Municipal Court are legally required to follow them.
Am. Joint Mot. ¶ 6.a. Each of these concepts—incarceration for non-payment and notice—are
discussed below.
First, In Bearden v. Georgia, 461 U.S. 660 (1983), the Supreme Court held: [T]hat in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and 2 The Parties seek a ruling only as to what is facially required during Municipal Court proceedings, and whether the proposed procedures are facially constitutional. The actual implementation of the procedures may hypothetically raise new issues but those hypothetical issues are not presently at issue between the Parties.
4

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 5 of 12
sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment. Id. at 672–73. The Supreme Court explained that “alternate measures of punishment” that could satisfy the State’s interest in punishment and deterrence could include “extend[ing] the time for making payments, or reduc[ing] the fine, or direct[ing] that the probationer perform some form of labor or public service in lieu of the fine.” Id. at 672. Alabama courts have explained that, “in accordance with Bearden v. Georgia,” courts must inquire into the reasons for any failure to pay and make specific determinations and findings, including findings “supported by the evidence that the defendant willfully refused to pay; that he failed to make sufficient bona fide efforts to pay; or, in the event of a showing of sufficient efforts to pay, that alternative measures to punish and deter are inadequate.” Snipes v. State, 521 So.2d 89, 90–91 (Ala. Crim. App. 1986). The Parties agree, and seek a declaration from the Court, that these standards articulated in Bearden apply to the Montgomery Municipal Court when that court is considering whether to incarcerate someone who has not paid their fines and costs. Second, in Turner v. Rogers, 131 S. Ct. 2507, 2511 (2011), the Supreme Court held that the due process clause requires procedural safeguards in cases involving a potential for incarceration for nonpayment. The Court went on to note that one, non-exclusive, way in which these procedural safeguards can be satisfied is by: (1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant
5

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 6 of 12
financial information from him; (3) an opportunity at the hearing for him to respond to statements and questions about his financial status; and (4) an express finding by the court that the defendant has the ability to pay. Turner v. Rogers, 131 S. Ct. 2507, 2519 (2011). Turner also suggested that alternate provisions other than the four identified above may also satisfy the procedural safeguards required by the due process clause. Id. at 2519–20. The Parties agree, and seek a declaration from the Court, that the general principles articulated in Turner apply to the Montgomery Municipal Court when that court is considering whether to incarcerate someone who has not paid their fines and costs. The Parties thus respectfully ask that the Court enter the requested First Declaration Related to Constitutional Principles to resolve any dispute between the Parties regarding whether these principles apply to the Montgomery Municipal Court when it is considering whether to incarcerate a person who has not paid his or her fines and costs, as Plaintiffs allege occurred to them in August 2013, and as Plaintiffs allege could happen to them again in the future absent such a declaration.
Second Declaration Related to Judicial Procedures and Federal Caselaw The Parties next ask the Court to declare that: the Judicial Procedures attached as Exhibit A facially comply with the constitutional principles set out in Bearden v. Georgia, 461 U.S. 660 (1983), regarding incarceration for non-payment; and Turner v. Rogers, 131 S. Ct. 2507 (2011), regarding notice. Am. Joint Mot. ¶ 6.b. The Parties agree that the Judicial Procedures agreed upon by the Parties facially comply with the cited requirements regarding incarceration for non-payment, and notice. Each is discussed below. First, the requirements of Bearden v. Georgia are satisfied. Prior to incarcerating anyone for non-payment, the Procedures require the municipal court judge to ask if the person has the
6

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 7 of 12
ability to pay. See Ex. A at 4 ¶ 3. If, at a compliance hearing, a defendant expresses an inability to pay, the court will hold a hearing to make a determination of that person’s ability to make payments and ascertain whether the person is indigent. See id. at 4–5. The defendant may present evidence or testimony at this hearing. Id. at 4 ¶ 4.b.ii. The court will order an individual to serve jail time only after making an express finding of willful nonpayment. Id. at 6 ¶ 4.b.iv.e. The Procedures also include alternates to incarceration to provide punishment and deterrence, including the option of payment plans, delaying payments owed, remitting costs and fines, providing community service, or any other remedy deemed just and appropriate. Id. at 5 ¶ 4.b.iii, 6 ¶ 4.b.iv.
Thus, because the Procedures require an actual finding of willful nonpayment before any person can be incarcerated for non-payment, and because the Procedures authorize alternatives to incarceration as needed to permit Defendants to fulfill their legitimate interest in punishing defendants who cannot afford to pay, the Parties believe, and ask the Court to declare, that the Procedures facially comply with Bearden v. Georgia.
Second, the Judicial Procedures agreed upon by the Parties facially comply with the right to notice required by due process as articulated in Turner v. Rogers. The Procedures provide notice to individuals that their ability to pay is a critical issue in the proceeding, both by an initial inquiry by the municipal court judge, see Ex. A. at 4 ¶ 3, and by providing a notice of rights form, id. at 8. An affidavit of substantial hardship form is used to elicit relevant financial information, id. at 4–5 ¶¶ 4.b.i–iii, and the defendant may present evidence or testimony at this hearing, id. at 4 ¶ 4.b.ii.
Thus, because the Procedures require notice that the ability to pay is a critical issue, both orally by the municipal court judge and in writing before the hearing, and because the Procedures
7

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 8 of 12
require use of a form to elicit relevant financial information, and because the Procedures state explicitly that the defendant may present evidence, the Parties believe, and ask the Court to declare, that the Procedures facially comply with Turner v. Rogers.
Third Declaration Related to Judicial Procedures and Constitutional and State Law Provisions
The Parties next ask the Court to declare that: the Judicial Procedures attached as Exhibit A facially comply with the requirements of the Fourteenth and Sixth Amendments to the U.S. Constitution, sections 1, 6, and 22 of the Alabama Constitution, and Rule 26.11 of the Alabama Rules of Criminal Procedure. Am. Joint Mot. ¶ 6.c. The cases cited in the Amended Motion set out the general principles of the Fourteenth Amendments to the U.S. Constitution. Thus, by providing the opportunity for a hearing on ability to pay before incarceration, by requiring a finding of willful nonpayment, and by providing all defendants with notice that the ability to pay is relevant and with a form that solicits relevant financial information, the Procedures facially comply with these constitutional provisions. The Judicial Procedures also comply with the Sixth Amendment right to counsel. The Municipal Court will provide counsel at each compliance hearing or indigence determination. See Ex. A at 1 ¶ 2 (“A Public Defender will represent all defendants not otherwise represented by counsel at all compliance and indigence/ability-to-pay hearings. At said hearings, the judge will require that the Public Defender appear with the Defendant in front of the judge, and the Court will note the Public Defender’s appearance in the record.”); see also id. at 4 ¶ 4.b.i, ii; 6 ¶ 4.b.iv.e. The Municipal Court will also provide counsel, in accordance with Rule 33 of the Alabama Rules of Criminal Procedure, for any contempt proceedings initiated for those who fail
8

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 9 of 12
to complete community service. See id. at 6 ¶ 5; Ala. R. Crim. P. 33.3(d); 6.1(a). Defendants do not concede that this is necessarily actually required by the Sixth Amendment, but all Parties agree that by providing counsel, the Judicial Procedures do facially comply with the Sixth Amendment.
For the same reasons explained above, the Judicial Procedures also necessarily facially comply with the corresponding provisions of the Alabama Constitution. Alabama courts have interpreted the State Constitution to provide equivalent rights to equal protection, due process, and right to counsel. See State v. Adams, 91 So. 3d 724, 738 (Ala. Crim. App. 2010) (interpreting equal protection clause of Alabama Constitution); Ex parte Shelton, 851 So.2d 96, 100 (Ala. 2000) (actual imprisonment relevant standard to determine whether right to counsel violated); Vest v. Vest, 978 So. 2d 759, 763 n.1 (Ala. Civ. App. 2006) (“Alabama courts have likened the due-process provision of Ala. Const. of 1901, Art. 1, § 13, to the Due Process Clause of the Fourteenth Amendment of the United States Constitution.”); see also Committee Comments, Ala. R. Crim. P. 6.1 (explaining right to counsel under federal and state constitutions as applicable in Alabama state courts).
Furthermore, Rule 26.11 of the Alabama Rules of Criminal Procedure was meant to establish procedures “consistent with the United States Supreme Court’s holding in Tate v. Short.”3 Committee Comments, Ala. R. Crim. P. 26.11. Under Rule 26.11, “If the defendant cannot pay the costs, fine, and/or restitution immediately after pronouncement of the sentence as preferred, the court may permit payment of the costs, fine, and/or restitution, at some later date, or in specified installments.” Ala. R. Crim. P. 26.11(d). If a defendant fails to pay within the
3 See Tate v. Short, 401 U.S. 395, 398 (1971) (“[T]he Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.”).
9

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 10 of 12
specified time, Ala. R. Crim. P. 26.11(f), the Court may inquire into the reasons for nonpayment and impose remedies, including reducing the amount owed, continuing or modifying the schedule of payments, ordering an employer to withhold a portion of wages, releasing defendant from the obligation, or incarcerating the defendant. Id. 26.11(g), (h). “Incarceration should be employed only after the court has examined the reasons for nonpayment,” including “consideration of the defendant’s situation, means, and conduct with regard to the nonpayment of the fine and/or restitution.” Id. 26.11(i)(1). “In no case shall an indigent defendant be incarcerated for inability to pay a fine or court costs or restitution.” Id. 26.11(i)(2).
Defendants do not concede that the judges of the Municipal Court ever “immediately” or “automatically” incarcerated criminal defendants who did not pay fines and costs or that the judges of the Municipal Court incarcerated the Plaintiffs or any other criminal defendants because they were unable to pay fines and costs. Defendants further deny that any of them violated Rule 26.11 or Tate, supra, and Defendants submit that it was the practice of the Municipal Court judges generally to give individuals appearing there time to pay fines and costs.
Nevertheless, the new Judicial Procedures comply with these state and federal requirements. As explained above, these procedures facially satisfy the due process and equal protection clauses by requiring a hearing and a determination of a person’s ability to pay and an express finding of willful nonpayment before ordering jail time. See Ex. A at 4–6. The plan also provides the judges with the options, including incarceration and other alternatives, available under Rule 26.11(h). Id. at 5 ¶ 4.b.iii, 6 ¶ 4.b.iv.
** *
10

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 11 of 12
With the above declarations, the Parties submit that all disputes between them raised in
these actions will be resolved. The Parties thus respectfully ask the Court to enter the requested
declarations, and to further enter a final judgment as to all claims in the above-styled cases.
s/ Samuel Brooke Sara Zampierin Samuel Brooke David Carter Dinielli Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104 Email: samuel.brooke@splcenter.org Email: sara.zampierin@splcenter.org Email: david.dinielli@splcenter.org
ATTORNEYS FOR PLAINTIFFS
s/ Shannon L. Holliday Shannon L. Holliday (HOL088) Robert D. Segall (SEG003) Copeland Franco Screws & Gill, P.A. Post Office Box 347 Montgomery, AL 36101-0347 Phone: (334) 834-1180 Email: holliday@copelandfranco.com Email: segall@copelandfranco.com
s/Jason C. Paulk Jason C. Paulk Legal Department City of Montgomery Post Office Box 1111 Montgomery, AL 36101-1111 Email: jpaulk@montgomeryal.gov
ATTORNEYS FOR DEFENDANTS
11

Case 2:13-cv-00732-MHT-TFM Document 56-2 Filed 09/12/14 Page 12 of 12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this date the foregoing was filed through the Court’s CM/ECF filing system, and that by virtue of this filing notice will be sent electronically to all counsel of record.

Dated: September 12, 2014

/s/ Samuel Brooke

12

Case 2:13-cv-00732-MHT-TFM Document 56-3 Filed 09/12/14 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

)

HARRIET DELORES CLEVELAND,

)

)

Plaintiff,

)

)

vs.

) Case No: 2:13-cv-732- MHT-TFM

)

)

CITY OF MONTGOMERY, et al.,

)

)

Defendants.

)

)

_____________________________________ )

)

MARKIS ANTWUAN WATTS,

)

)

Plaintiff,

)

)

vs.

) Case No: 2:13-cv-733- MHT-TFM

)

CITY OF MONTGOMERY, et al.

)

)

Defendants.

)

)

)

[PROPOSED]

ORDER

The Court having considered the Amended Joint Motion for Entry of Agreed Settlement

Order, ORDERS as follows:

1. The Amended Joint Motion for Entry of an Agreed Settlement Order is

GRANTED.

2. The Court hereby DECLARES that, under the current status of the law, the

constitutional principles set out in Bearden v. Georgia, 461 U.S. 660 (1983) regarding

incarceration for non-payment; and Turner v. Rogers, 131 S. Ct. 2507 (2011), regarding notice,

1

Case 2:13-cv-00732-MHT-TFM Document 56-3 Filed 09/12/14 Page 2 of 2

apply in Municipal Court proceedings, and, to the extent applicable in a particular case, the Judges of the Montgomery Municipal Court are legally required to follow them.
3. The Court hereby DECLARES that the procedures attached as Exhibit A to the Amended Joint Motion for Entry of an Agreed Settlement Order facially comply with the constitutional principles set out in Bearden v. Georgia, 461 U.S. 660 (1983) regarding incarceration for non-payment; and Turner v. Rogers, 131 S. Ct. 2507 (2011), regarding notice.
4. The Court hereby DECLARES that the procedures attached as Exhibit A to the Amended Joint Motion for Entry of an Agreed Settlement Order facially comply with the requirements of the Fourteenth and Sixth Amendments to the U.S. Constitution, sections 1, 6, and 22 of the Alabama Constitution, and Rule 26.11 of the Alabama Rules of Criminal Procedure.
6. This Order constitutes a final resolution of all claims at issue in these cases.

Done this ___ day of _______, 2014

_______________________________ UNITED STATES DISTRICT JUDGE

2

Cleveland v. City of Montgomery et al (LEAD)(JOINT ASSIGN), Docket No. 2_13-cv-00732 (M.D. Ala. Oct 04, 2013), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the Middle District of Alabama; United States District Court for the Middle District of Alabama
Civil Rights - Other[440]
2:13-cv-00732
CLOSED

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 31

 
 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

HARRIET DELORES CLEVELAND, )

)

Plaintiff,

)

)

v.

)

)

CITY OF MONTGOMERY and

)

THE HONORABLE MILTON J. )

WESTRY,

)

)

Defendants.

)

CIVIL ACTION NO. 2:13cv732-MHT (WO)

MARKIS ANTWUAN WATTS,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF MONTGOMERY, THE )

HONORABLE MILTON J.

)

WESTRY, and THE HONORABLE )

LES HAYES III,

)

)

Defendants.

)

CIVIL ACTION NO. 2:13cv733-MHT (WO)

OPINION

“Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal.”

Griffin v. Illinois, 351 U.S. 12, 16, (1956).

Plaintiffs Harriet Delores Cleveland and Martin Antwuan Watts bring these consolidated federal cases against defendants City of Montgomery and two of the City’s municipal judges, claiming that they were thrown in jail for being too poor to pay parking tickets in violation of their rights to counsel, equal protection, and due process under the following federal and state laws: the Sixth and Fourteenth Amendments of the United States Constitution; Article I, §§ 1, 6, and 22 of the Alabama Constitution; and the Alabama Rules of Criminal Procedure. Subject-matter jurisdiction is proper under 28 U.S.C. §§ 1331 (federal question), 1343(a)(3) (civil rights), and 1367 (supplemental). These cases are before this federal court on the parties’ joint motion for entry of agreed settlement order. The motion will be granted.
I. BACKGROUND Cleveland and Watts allege that they were unconstitutionally jailed because they were too poor to
2

pay Montgomery city traffic-ticket fines and associated court costs. Although the facts remain disputed, to give background for the settlement the court briefly reviews them as alleged by Cleveland and Watts.
Cleveland alleges that, over a period of five years, she received a number of traffic tickets that she could not afford to pay. The first tickets were for a lack of car insurance. Over a two-year span, police set up roadblocks in her West Montgomery neighborhood, and she was ticketed each time she could not present proof of insurance. Because she could not afford to pay these tickets, the City of Montgomery suspended her license. Nevertheless, she continued driving to work and her child’s school, and she eventually received additional tickets for driving without a license. She remained unable to pay the fines owed, and, in August 2013, her outstanding fines
3

were converted into a term of imprisonment in the Montgomery Municipal Jail.1
Similarly, Watts alleges that he was taken into custody to serve a 54-day sentence based solely on his inability to pay a traffic ticket when he appeared before the Montgomery Municipal Court regarding an unrelated misdemeanor charge. Although the court dismissed the misdemeanor, it learned that Watts had outstanding traffic fines. The court gave him two options: either pay or face jail time. After he stated that he could not afford to pay the outstanding fines, the court sentenced him to jail.
In August 2013, while still in custody in the Montgomery Municipal Jail, Cleveland and Watts each brought suit individually in state court. Following removal to this federal court, the cases were
1. Cleveland also alleges that she was jailed at least twice prior to 2013 due to her inability to pay the traffic tickets she received during 2008 and 2009. Little information was provided, however, regarding those periods of incarceration or the municipal-court proceedings that produced them.
4

consolidated. Cleveland and Watts sought declaratory and injunctive relief. The City and the other defendants agreed to a stay of the municipal-court orders of incarceration and the collection of outstanding debts pending discovery in this matter.
During discovery, another federal case, Mitchell v. City of Montgomery, No. 2:14cv186-MHT, was filed. The facts in Mitchell are analogous, and the Mitchell plaintiffs raise substantially similar claims. The Mitchell court, however, entered a preliminary injunction. As part of the injunction, the City of Montgomery was ordered to submit a comprehensive set of proposed judicial procedures that it would implement for the collection of fines going forward. While Cleveland’s and Watts’s cases have been litigated separately from Mitchell, this court allowed Cleveland and Watts to participate in the briefing and proposed hearing regarding the proposed judicial procedures.
All parties then decided to engage in private mediation to develop agreed-upon procedures that would
5

facially satisfy federal and state-law requirements. The parties now contend that the resulting proposed procedures establish a scheme whereby indigent defendants will not be “incarcerated for [their] inability to pay fine[s] or court costs or restitution.” Ala. R. Crim. P. 26.11(i)(2). The procedures are guided by four key components: access to counsel, notification forms, “indigence/ability-to-pay” hearings, and express judicial findings.
Under the proposed judicial procedures, a debtor who does not otherwise have counsel is to be represented by a public defender at all compliance and indigence/ability-to-pay hearings. A public defender will also be available to a debtor who needs assistance completing an affidavit of substantial hardship and related documentation prior to hearings. Lastly, public defenders are instructed to inform any debtor who is ultimately subject to imprisonment of her appellate rights.
6

If a debtor is unable to pay her fine, she will be

notified of her right to a public defender, the date of

her compliance hearing, and her right to present

evidence of financial hardship through a set of forms:

Form One (“Payment of Fines and Costs”) and Form Two

(“Order Setting Hearing for Compliance Review”). The

forms notify the debtor that an individual “cannot be

put in jail solely for [her] inability to pay ... fines

and costs” absent a finding of willful non-payment. The

forms go on to indicate how a debtor would begin

establishing inability to pay at her first compliance

hearing.

During

a

debtor’s

first

compliance

hearing--scheduled for all debtors who do not pay their

fines and costs in full at their first appearance--the

debtor must be given the opportunity to dispute the

amount allegedly owed.

Additionally, the

municipal-court judge is required to ask why the debtor

has failed to pay in full, specifically asking whether

the debtor “is able to pay [that day].” If, in

7

response to the municipal court’s inquiry, the debtor indicates that she is unable to pay, the court will direct the debtor to a public defender and schedule an indigence/ability-to-pay hearing. Even if the debtor does not indicate an inability to pay, the court is prohibited from converting the debtor’s fines into a prison sentence without first conducting an indigence/ability-to-pay hearing.
At an indigence/ability-to-pay hearing, the court is required to make an express indigence/ability-to-pay determination, taking into account testimony, the debtor’s affidavit of substantial hardship, any other documents submitted by the debtor, and any additional information the court deems necessary. If, after questioning and the presentation of evidence, the court determines that the debtor is at or below 125 % of the federal poverty level, the debtor will be presumed indigent and unable to pay the fines, court costs, and restitution previously levied, unless the debtor is found to have substantial liquid assets with which to
8

pay the obligations. If the debtor is found to be above 125 % of the federal poverty level, no such presumption of indigence will attach; the debtor will, however, still be afforded an opportunity to show the court that she is unable to pay, taking into consideration disposable income, liquid assets, and earning potential.
If, following the hearing, the debtor is determined to be indigent or otherwise unable to pay, the court will have the option of proposing a new payment plan guided by the debtor’s available financial resources, remitting the fines and costs, or ordering any other remedy deemed just and appropriate other than incarceration. Additionally, the court is required to provide the debtor the option of completing community service in lieu of making monetary payments. The court will be able to order the debtor to serve jail time only if the hearing results in an express finding of willful non-payment, that is, the debtor refuses to pay despite having the ability to pay.
9

II. JOINT MOTION FOR ENTRY OF AGREED SETTLEMENT ORDER
The parties have submitted to this federal court the proposed judicial procedures as an exhibit to their joint motion for entry of agreed settlement order. In the joint motion, they request that the court issue certain declarations under 28 U.S.C. § 2201 addressing the proposed judicial procedures’ facial compliance with applicable federal and state law.
For each of these requested declarations, the court will now determine whether the proposed judicial procedures facially comply with federal and state law. It need not--and will not--determine whether the new procedures represent the minimum requirements under federal and state constitutional law or, instead, go beyond what is required.
A. Declaration 1 The parties ask this federal court to declare that, under the current status of the law, the constitutional
10

principles set out in Bearden v. Georgia, 461 U.S. 660 (1983), regarding incarceration for non-payment, and Turner v. Rogers, --- U.S. ---, 131 S. Ct. 2507 (2011), regarding notice, apply in municipal-court proceedings, and that, to the extent applicable in a particular case, the judges of the Montgomery Municipal Court are legally required to follow them.
It is uncontroverted that these cases apply to municipal-court proceedings. Both cases addressed state judicial proceedings, see Bearden, 461 U.S. at 662 (addressing Georgia state courts); Turner, --- U.S. at ---, 131 S. Ct. at 2512 (addressing South Carolina family court), and “[m]unicipalities are but subordinate departments of state government.” Alexander v. State ex rel. Carver, 274 Ala. 441, 443 (1963); see also Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 662 (2009) (“Political subdivisions of States ... are [] subordinate governmental instrumentalities created by the State.”). As such, judges in municipal courts, like judges in state courts, must follow
11

Bearden and Turner, and the judges in the Montgomery Municipal Court are no exception.2
B. Declaration 2
The parties next request this federal court to
declare that the proposed judicial procedures facially
comply with the constitutional principles set out in
Bearden, regarding incarceration for non-payment, and
Turner, regarding notice. In Bearden, the Supreme
Court held that, under the Fourteenth Amendment’s Due
Process Clause and Equal Protection Clause, a trial
court cannot “automatically revok[e] probation because
[a] petitioner could not pay his fine, without
2. The parties’ proposed order for declaratory relief specifically requests that “to the extent applicable in a particular case, the judges of the Montgomery Municipal Court are legally required to follow” Bearden and Turner. Am. Joint Mot. for Entry of Agreed Settlement: Proposed Order (Doc. No. 56-3) (emphasis added). This court reads the “extent applicable” phrase to mean only that the municipal judges are bound by these Supreme Court cases whenever an issue before the municipal court implicates them rather than implying exceptions for municipal judges in certain cases.
12

determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist.” 461 U.S. at 662.
This holding breaks down into a three-part process. First, a court must ask why a person could not pay a fine. Id. at 672. Second, if the person has the resources and willfully refuses to pay, the court may imprison her; if she does not have the resources, the court must ask whether she made bona-fide efforts to obtain the resources. Id. Last, if she made bona-fide efforts, the court must consider if there are adequate alternative measures--such as giving more time to pay the fine, reducing the fine, or requiring labor or public service in lieu of the fine--that could satisfy the State’s interest in punishment and deterrence. Id. at 672-673. “Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay.” Id. at 672. Indeed, “[t]o do otherwise would deprive the
13

[debtor] of his constitutional freedom simply because, through no fault of his own, he cannot pay a fine.” Id. at 672-73.
Turner expanded on Bearden by defining an indigent person’s due-process rights under the Fourteenth Amendment when facing civil contempt. Turner, --- U.S. at ---, 131 S. Ct. at 2512. Although the Supreme Court found that a State did not have to provide counsel, drawing a distinction between civil- and criminal-contempt proceedings, it held that a State should provide “substitute procedural safeguards” that, when “employed together, can significantly reduce the risk of an erroneous deprivation of liberty.” Id. at ---, 131 S. Ct. at 2519 (internal citation omitted). These safeguards could include “(1) notice to the defendant that his ability to pay is a critical issue in the contempt proceedings; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about
14

his financial status ... ; and (4) an express finding by the court that the defendant has the ability to pay.” Id.
Here, the proposed judicial procedures facially comply with the constitutional requirements outlined in Bearden. Under Bearden, a court may imprison a debtor only upon a finding of willful non-payment or when, despite the debtor making a bona-fide effort to pay, “alternative measures [of punishment] are not adequate to meet the State’s interests in punishment and deterrence.” 461 U.S. at 672. The judicial procedures agreed to by the parties here conform to that standard, allowing a debtor to be imprisoned only if (1) the municipal court determines that the debtor had the ability to pay and (2) the court makes an express finding that the non-payment was willful.
Similarly, the proposed judicial procedures facially comply with the due-process requirements provided for in Turner. Although the Sixth Amendment does not provide debtors facing incarceration a right
15

to counsel during civil-contempt proceedings, the Due Process Clause does require several “substitute procedural safeguards” during these civil proceedings. Turner, --- U.S. at ---, 131 S. Ct. at 2519. The judicial procedures offered by the parties incorporate all of the procedural safeguards discussed in Turner. Under the procedures, debtors are notified that an individual cannot be incarcerated solely due to an inability to pay; the court utilizes a form to elicit debtors’ financial information and debtors are afforded an opportunity to respond to questions regarding their financial capabilities; and the court is required to make an express finding regarding each debtor’s ability to pay. The judicial procedures then go a step further to safeguard against the “erroneous deprivation of liberty” and provide for public-defender representation at all indigence/ability-to-pay hearings for debtors facing the possibility of incarceration following non-payment.
16

C. Declaration 3
Last, the parties request that this federal court
declare that the proposed judicial procedures facially
comply with the requirements of the Fourteenth and
Sixth Amendments to the United States Constitution,
§§ 13, 64, and 225 of the Alabama Constitution, and Rule
26.11 of the Alabama Rules of Criminal Procedure.6
3. Section 1 provides, “That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.”
Ala. Const. Art. I, § 1.
4. Section 6 provides,
“That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; and to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to testify in all cases, in his own behalf, if he elects so to do; and, in all prosecutions by indictment, a speedy, public trial, by an impartial jury of (continued . . .)
17

the county or district in which the offense was committed; and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law; but the legislature may, by a general law, provide for a change of venue at the instance of the defendant in all prosecutions by indictment, and such change of venue, on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefor; provided, that at the time of the application for the change of venue, the defendant is imprisoned in jail or some legal place of confinement.”
Ala. Const. Art. I, § 6.
5. Section 22 provides,
“That no ex post facto law, nor any law, impairing the obligations of contracts, or making any irrevocable or exclusive grants of special privileges or immunities, shall be passed by the legislature; and every grant or franchise, privilege, or immunity shall forever remain subject to revocation, alteration, or amendment.”
Ala. Const. Art. I, § 22.
6. The relevant part of Rule 26.11 provides,
(continued . . .)
18

First, the proposed judicial procedures facially

comply with the Fourteenth Amendment. As discussed

above, Bearden and Turner govern the application of the

Due Process Clause and Equal Protection Clause to

civil-contempt proceedings for indigent parties, and

the proposed judicial procedures meet the requirements

set out in those two cases.

Second, the procedures facially comply with the

Sixth Amendment.

Under the Sixth Amendment, an

indigent

defendant

has

the

right

to

government-appointed counsel in criminal--but not

civil--contempt proceedings. Turner, --- U.S. at ---,

131 S. Ct. at 2516. The court, however, need not speak

to the nature of the municipal proceedings in this

case.

Because the parties’ proposed judicial

procedures provide for the representation of all

“In no case shall an indigent defendant be incarcerated for inability to pay a fine or court costs or restitution.”
Ala. R. Crim. Proc. 26.11.
19

debtors during compliance and ability-to-pay hearings, they would comply with the Sixth Amendment.
Third, the procedures facially comply with the due process, right to counsel, and any equal-protection principle embodied in Article I, §§ 1, 6, and 22 of the Alabama Constitution for the same reasons they comply with the United States Constitution. As to due process, “[t]he right to due process is guaranteed to the citizens of Alabama under the Alabama Constitution of 1901, Sections 6 and 13,” and it applies to both criminal and civil cases. Ross Neely Exp., Inc. v. Alabama Dep't of Envtl. Mgmt., 437 So. 2d 82, 84 (Ala. 1983). These clauses have been likened to the Due Process Clause in the federal Constitution. Limestone Cnty. Dep't of Human Res. v. Long, --- So.3d ---, ---, 2014 WL 5394522, at *4 (Ala. Civ. App. 2014) (“[The Alabama] supreme court ‘has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution’ .... Alabama's constitution
20

does not afford a state agency any additional right to due process not found in the federal constitution.”) (citing Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala. 2002)); Vest v. Vest, 978 So. 2d 759, 763 n.1 (Ala. Civ. App. 2006) (“Alabama courts have likened the due-process provision of Ala. Const. of 1901, Art. 1, § 13, to the Due Process Clause of the Fourteenth Amendment of the United States Constitution.”). As discussed above, the proposed procedures facially meet the due-process requirement by providing counsel to indigent debtors and guaranteeing no debtor will go to prison unless she willfully refuses to pay.
Similar to their interpretation of state due-process rights in light of federal due-process rights, Alabama courts have also frequently interpreted the Alabama Constitution’s right to counsel in light of the federal right to counsel under the Sixth Amendment. See, e.g., Hill v. Bradford, 565 So. 2d 208, 210 (Ala. 1990); Pinkerton v. State, 395 So. 2d 1080 (Ala. Crim. App. 1980). Because every debtor unable to pay her
21

fines will be provided counsel under the proposed procedures, the procedures meet the right-to-counsel requirement under the Alabama Constitution.
As to equal protection, there is an open question whether Article I, §§ 1, 6, and 22 of the Alabama Constitution can be read together to establish an equal-protection principle. Hutchins v. DCH Reg’l Med. Ctr., 770 So.2d 49, 59 (Ala. 2000) (“The question whether §§ 1, 6, and 22 of Article I, Constitution of Alabama 1901, combine to guarantee the citizens of Alabama equal protection under the laws remains in dispute.”); see also Dyas v. City of Fairhope, 2010 WL 5477754 (S.D. Ala. 2010) (Steele, C.J.) (analyzing past Alabama Supreme Court cases on the issue). Assuming arguendo that these clauses do combine for an equal-protection principle, the court finds that the proposed procedures meet this principle for the same reason the procedures fulfill the requirements of the federal Equal Protection Clause. Cf. State v. Adams, 91 So. 3d 724, 738-41 (Ala. Crim. App. 2010) (holding
22

Alabama sex-offender law unconstitutional under the federal Equal Protection Clause and the state equal-protection principle because it deprived indigent and homeless, but not wealthy, offenders of liberty based on their poverty).
Last, the procedures facially comply with the requirements of Alabama Rule of Criminal Procedure 26.11. The rule mandates that, “Incarceration shall not automatically follow the nonpayment of a fine or restitution.” Ala. R. Crim. P. 26.11. Indeed, a state court may not incarcerate an indigent defendant for the inability to pay a fine. Id. To avoid this result, the state court may inquire into the defendant’s ability to pay, reduce the debt owed, modify the payment schedule, or release the defendant from the obligation altogether. Id. The proposed judicial procedures (which require indigence/ability-to-pay hearings, guarantee of counsel, and exclusion of incarceration as a remedy for indigent defendants) facially conform to this rule.
23

*** This federal court will, therefore, grant the parties’ joint motion for entry of agreed settlement order. An accompanying judgment will be entered.
DONE, this the 17th day of November, 2014.
/s/ Myron H. Thompson___ UNITED STATES DISTRICT JUDGE

 
 Case 2:13-cv-00732-MHT-TFM Document 59 Filed 11/17/14 Page 1 of 3

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

HARRIET DELORES CLEVELAND, )

)

Plaintiff,

)

)

v.

)

)

CITY OF MONTGOMERY and

)

THE HONORABLE MILTON J.

)

WESTRY,

)

)

Defendants.

)

CIVIL ACTION NO. 2:13cv732-MHT (WO)

MARKIS ANTWUAN WATTS,

)

)

Plaintiff,

)

)

v.

)

)

CITY OF MONTGOMERY, THE

)

HONORABLE MILTON J.

)

WESTRY, and THE HONORABLE )

LES HAYES III,

)

)

Defendants.

)

CIVIL ACTION NO. 2:13cv733-MHT (WO)

JUDGMENT In accordance with the opinion entered this date, it is ORDERED that:

Case 2:13-cv-00732-MHT-TFM Document 59 Filed 11/17/14 Page 2 of 3
(1) The parties’ joint motion for entry of agreed settlement order (doc. no. 56) is granted.
(2) The court declares that, under the current status of the law, the constitutional principles set out in Bearden v. Georgia, 461 U.S. 660 (1983), regarding incarceration for non-payment, and Turner v. Rogers, --- U.S. ---, 131 S. Ct. 2507 (2011), regarding notice, apply in municipal-court proceedings and that, to the extent applicable in a particular case, the judges of the Montgomery Municipal Court are legally required to follow them.
(3) The court declares that the “Judicial Procedures of the Municipal Court of the City of Montgomery for Indigent Defendants and Nonpayment,” submitted as Exhibit A to the joint motion for entry of agreed settlement order (ex. A to doc. no. 56), facially comply with the constitutional principles set out in Bearden, regarding incarceration for non-payment, and Turner, regarding notice.
2

Case 2:13-cv-00732-MHT-TFM Document 59 Filed 11/17/14 Page 3 of 3
(4) The court declares that these “Judicial Procedures of the Municipal Court of the City of Montgomery for Indigent Defendants and Nonpayment” facially comply with the requirements of the Fourteenth and Sixth Amendments to the U.S. Constitution, Article I, §§ 1, 6, and 22 of the Alabama Constitution, and Rule 26.11 of the Alabama Rules of Criminal Procedure.
The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
These cases are closed. DONE, this the 17th day of November, 2014. /s/ Myron H. Thompson___ UNITED STATES DISTRICT JUDGE

Case 2:13-cv-00732-MHT-TFM Document 59-1 Filed 11/17/14 Page 1 of 2
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on December 1, 2013, the new fee to file an appeal will increase from $455.00 to $505.00.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre, 701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys’ fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders “granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed.” Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court’s denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964). Rev.: 4/04

Case 2:13-cv-00732-MHT-TFM Document 59-1 Filed 11/17/14 Page 2 of 2
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD – no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.”
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).