U.S. District Court Northern District of Georgia (Atlanta) CIVIL DOCKET FOR CASE #: 1:18−cv−02375−RWS

8months

Brucker et al v. The City of Doraville Assigned to: Judge Richard W. Story Cause: 42:1983 Civil Rights Act Plaintiff Hilda Brucker
Plaintiff Jeffery Thornton

Date Filed: 05/23/2018 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Anthony Sanders Institute for Justice − MN 520 Nicollet Mall Minneapolis, MN 55402 612−435−3451 Email: asanders@ij.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank B. Strickland Taylor English Duma LLP Suite 200 1600 Parkwood Circle Atlanta, GA 30339 770−434−6868 Email: fstrickland@taylorenglish.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua House Institute for Justice − VA Suite 900 901 North Glebe Road Arlington, VA 22203−1854 703−682−9320 Email: jhouse@ij.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
William R. Maurer Institute for Justice−WA 600 University St. Seattle, WA 98101 206−957−1300 Fax: 206−957−1301 Email: wmaurer@ij.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Anthony Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank B. Strickland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua House

Plaintiff Janice Craig
Plaintiff Byron Billingsley
V. Defendant The City of Doraville a Georgia municipal corporation

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank B. Strickland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua House (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony Sanders (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Frank B. Strickland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joshua House (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harvey Scott Gray Gray Rust St. Amand Moffett & Brieske 1700 Atlanta Plaza 950 East Paces Ferry Road Atlanta, GA 30326 404−870−7376 Fax: 404−870−7374 Email: hgray@grsmb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra M. Joseph Gray, Rust, St. Amand, Moffett & Brieske, LLP 950 East Paces Ferry Rd Suite 1700 Atlanta, GA 30326 404−870−7389 Email: ajoseph@grsmb.com ATTORNEY TO BE NOTICED
Dianna J. Lee Stewart Trial Attorneys

55 Ivan Allen Jr. Blvd. Suite 700 Atlanta, GA 30308 404−328−7596 Email: dlee@stewarttrial.com TERMINATED: 10/03/2019

Date Filed 05/23/2018
05/23/2018 05/24/2018 05/24/2018 05/25/2018 05/25/2018 05/29/2018 05/30/2018 06/06/2018
06/06/2018
06/06/2018 06/06/2018 06/06/2018 06/13/2018 06/13/2018 06/13/2018

# Docket Text
1 COMPLAINT filed by Jeffery Thornton, Hilda Brucker, Janice Craig and Byron Billingsley. (Filing fee $400.00, receipt number 113E−7898383) (Attachments: # 1 Civil Cover Sheet, # 2 Incorrect Summons)(eop) Please visit our website at http://www.gand.uscourts.gov/commonly−used−forms to obtain Pretrial Instructions and Pretrial Associated Forms which includes the Consent To Proceed Before U.S. Magistrate form. (Entered: 05/24/2018)
2 Certificate of Interested Persons by Byron Billingsley, Hilda Brucker, Janice Craig and Jeffery Thornton. (eop) (Entered: 05/24/2018)
3 COURT NOTICE of Filing: Standing Order Regarding Civil Litigation by Judge Richard W. Story. (sk) (Entered: 05/24/2018)
4 PROPOSED SUMMONS filed by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton (Strickland, Frank) (Entered: 05/24/2018)
5 APPLICATION for Admission of Joshua House Pro Hac Vice (Application fee $ 150, receipt number 113E−7905466)by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (Strickland, Frank) (Entered: 05/25/2018)
6 APPLICATION for Admission of Anthony Sanders Pro Hac Vice (Application fee $ 150, receipt number 113E−7905501)by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (Strickland, Frank) (Entered: 05/25/2018)
7 Electronic Summons Issued as to The City of Doraville. (dgr) (Entered: 05/29/2018)
8 Return of Service Executed by Jeffery Thornton, Hilda Brucker, Janice Craig, Byron Billingsley. The City of Doraville served on 5/29/2018, answer due 6/19/2018. (Strickland, Frank) (Entered: 05/30/2018)
APPROVAL by Clerks Office re: 6 APPLICATION for Admission of Anthony Sanders Pro Hac Vice (Application fee $ 150, receipt number 113E−7905501). Attorney Anthony Sanders added appearing on behalf of Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton (pmb) (Entered: 06/06/2018)
APPROVAL by Clerks Office re: 5 APPLICATION for Admission of Joshua House Pro Hac Vice (Application fee $ 150, receipt number 113E−7905466). Attorney Joshua House added appearing on behalf of Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton (pmb) (Entered: 06/06/2018)
9 ORDER granting 6 Application for Admission Anthony Sanders Pro Hac Vice. Signed by Judge Richard W. Story on 06/06/2018. (dgr) (Entered: 06/06/2018)
Clerk's Certificate of Mailing as to Anthony Sanders re 9 Order on Application for Admission PHV. (dgr) (Entered: 06/06/2018)
10 ORDER granting 5 Application for Admission Joshua House Pro Hac Vice. Signed by Judge Richard W. Story on 06/06/2018. (dgr) (Entered: 06/06/2018)
11 NOTICE of Appearance by Harvey Scott Gray on behalf of The City of Doraville (Gray, Harvey) (Entered: 06/13/2018)
12 NOTICE of Appearance by Dianna J. Lee on behalf of The City of Doraville (Lee, Dianna) (Entered: 06/13/2018)
13 Consent MOTION for Extension of Time to File Answer re 1 Complaint, by The City of Doraville. (Attachments: # 1 Text of Proposed Order)(Lee, Dianna) (Entered: 06/13/2018)

06/14/2018 06/14/2018 07/02/2018 07/05/2018
07/06/2018 07/27/2018 07/27/2018 07/30/2018 07/31/2018 07/31/2018 08/01/2018 08/01/2018 08/01/2018 08/01/2018
08/13/2018 08/13/2018

14 ORDER granting 13 Motion for Extension of Time to Answer, The City of Doraville Answer due 7/2/2018. Signed by Judge Richard W. Story on 06/14/2018. (rsg) (Entered: 06/14/2018)
Clerk's Certificate of Mailing as to Anthony Sanders Institute for Justice − MN re 14 Order on Motion for Extension of Time to Answer. (rsg) (Entered: 06/14/2018)
15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , et al. with Brief In Support by The City of Doraville. (Attachments: # 1 Memorandum of Law in Support of Motion to Dismiss, # 2 Exhibit A, # 3 Exhibit B)(Gray, Harvey) (Entered: 07/02/2018)
16 Unopposed MOTION for Extension of Time TO FILE RESPONSE TO DEFENDANTS MOTION TO DISMISS re: 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , et al. by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (Attachments: # 1 Text of Proposed Order)(Sanders, Anthony) (Entered: 07/05/2018)
17 ORDER granting 16 Motion for Extension of Time to File Response to Defendant's Motion to Dismiss 15 . ORDERED that Plaintiffs shall respond to Defendants' motion to dismiss by July 30, 2018. Signed by Judge Richard W. Story on 07/06/2018. (dgr) (Entered: 07/06/2018)
18 Unopposed MOTION for Leave to File Excess Pages in Response to Defendant's Motion to Dismiss by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (Attachments: # 1 Text of Proposed Order)(House, Joshua) (Entered: 07/27/2018)
19 ORDER granting 18 Motion for Leave to File Excess Pages. ORDERED that Plaintiffs shall file a brief of no more than 30 pages in response to Defendant's motion to dismiss. Signed by Judge Richard W. Story on 07/27/2018. (dgr) (Entered: 07/27/2018)
20 RESPONSE in Opposition re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , et al. filed by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (House, Joshua) (Entered: 07/30/2018)
21 MOTION for Leave to File Excess Pages regarding 15 Defendant City of Doraville's Motion to Dismiss by The City of Doraville. (Attachments: # 1 Text of Proposed Order)(Lee, Dianna) (Entered: 07/31/2018)
22 JOINT PRELIMINARY REPORT AND DISCOVERY PLAN filed by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (House, Joshua) (Entered: 07/31/2018)
23 ORDER granting Defendant's 21 Motion for Leave to File Excess Pages re 15 Motion to Dismiss. The memorandum shall not exceed a total of thirty (30) pages. Signed by Judge Richard W. Story on 08/01/18. (sk) (Entered: 08/01/2018)
24 Initial Disclosures by The City of Doraville.(Lee, Dianna) (Entered: 08/01/2018)
25 CERTIFICATE OF SERVICE for Plaintiffs' Initial Disclosures by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 08/01/2018)
26 SCHEDULING ORDER: 22 Joint Preliminary Report and Discovery Plan. The discovery period will commence thirty (30) days following the date Defendant files an answer and will proceed for eight (8) months thereafter. The expert disclosure and dispositive motion briefing schedules will be set in a future scheduling order after this Court rules on Defendant's pending motion to dismiss. Signed by Judge Richard W. Story on 08/01/2018. (dgr) (Entered: 08/01/2018)
27 MOTION for Leave to File Excess Pages for Reply Brief by The City of Doraville. (Attachments: # 1 Text of Proposed Order)(Lee, Dianna) (Entered: 08/13/2018)
28 REPLY to Response to Motion re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , et al. filed by The City of Doraville. (Lee, Dianna) (Entered: 08/13/2018)

08/13/2018 08/14/2018 04/01/2019
04/03/2019 04/15/2019 04/16/2019 04/17/2019 04/18/2019
04/18/2019 05/21/2019 05/21/2019 06/04/2019 06/21/2019
07/09/2019

Submission of 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , et al., to District Judge Richard W. Story. (sk) (Entered: 08/13/2018)
29 ORDER granting 27 Motion for Leave to File Excess Pages. It is hereby ORDERED that said memorandum shall not exceed a total of twenty (20) pages/ exclusive of signature page and certificate of filing. Signed by Judge Richard W. Story on 08/14/2018. (dgr) (Entered: 08/14/2018)
30 ORDER denying 15 Motion to Dismiss for Failure to State a Claim. However, the Court grants, sua sponte, a reconsideration of the motions arguments under Rule 12(b)(6). The Court ORDERS the Parties to appear for a hearing to address the proper standard of review and its application in this case. The Courtroom Deputy Clerk will contact counsel to schedule that hearing. The parties may file supplemental briefs addressing these issues not later than 14 days before the hearing. Signed by Judge Richard W. Story on 4/1/2019. (dgr) (Entered: 04/01/2019)
31 NOTICE of Hearing: Hearing set for 6/4/2019 at 02:00 PM in ATLANTA Courtroom 2105 before Judge Richard W. Story. (sk) (Entered: 04/03/2019)
32 Request for Leave of Absence for the following date(s): April 30, 2019−May 7, 2019, by Harvey Scott Gray. (Gray, Harvey) (Entered: 04/15/2019)
33 APPLICATION for Admission of William R. Maurer Pro Hac Vice (Application fee $ 150, receipt number AGANDC−8594562)by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (Attachments: # 1 Text of Proposed Order)(Strickland, Frank) (Entered: 04/16/2019)
APPROVAL by Clerks Office re: 33 APPLICATION for Admission of William R. Maurer Pro Hac Vice (Application fee $ 150, receipt number AGANDC−8594562). Attorney Frank B. Strickland added appearing on behalf of Hilda Brucker (jkm) (Entered: 04/17/2019)
34 ORDER granting 33 Application for Admission William R. Maurer Pro Hac Vice. Signed by Judge Richard W. Story on 4/18/2019. If the applicant does not have CM/ECF access in the Northern District of Georgia already, they must request access at http://pacer.gov. If they have electronically filed in this district in a previous case, please omit this step.(dgr) (Entered: 04/18/2019)
Clerk's Certificate of Mailing as to William R. Maurer re 34 Order on Application for Admission PHV,. (dgr) (Entered: 04/18/2019)
35 NOTICE Of Filing Plaintiffs' Supplemental Brief in Opposition to Defendant's Motion to Dismiss by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton (House, Joshua) (Entered: 05/21/2019)
36 NOTICE Of Filing by The City of Doraville re 30 Order on Motion to Dismiss for Failure to State a Claim,, Doraville's Supplemental Brief in Further Support of its 12(b)(6) Motion to Dismiss (Lee, Dianna) (Entered: 05/21/2019)
37 Minute Entry for proceedings held before Judge Richard W. Story: Motion Hearing held on 6/4/2019 re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , et al. filed by The City of Doraville. Written order to follow. (Court Reporter Amanda Lohnaas)(rsg) (Entered: 06/05/2019)
38 TRANSCRIPT of Proceedings held on 6/4/19 (Hrg), before Judge Richard W. Story. Court Reporter/Transcriber Amanda Lohnaas. A full directory of court reporters and their contact information can be found at www.gand.uscourts.gov/directory−court−reporters. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/12/2019. Redacted Transcript Deadline set for 7/22/2019. Release of Transcript Restriction set for 9/19/2019. (Attachments: # 1 Notice of Filing of Transcript) (pjm) (Entered: 06/21/2019)
39 ORDER: This case comes before the Court for reconsideration of the City of Doraville's Motion to Dismiss 15 . After reconsideration, Doraville's Motion to Dismiss 15 is DENIED. See Order for further details. Signed by Judge Richard W. Story on 7/9/2019. (dgr) (Entered: 07/10/2019)

07/16/2019 07/16/2019 08/07/2019 09/04/2019 09/05/2019
09/11/2019 09/11/2019 09/11/2019 10/03/2019 10/25/2019 10/25/2019 11/25/2019 11/27/2019 11/27/2019 12/11/2019 12/17/2019

40 Consent MOTION for Extension of Time to File Answer re 1 Complaint, by The City of Doraville. (Attachments: # 1 Text of Proposed Order)(Gray, Harvey) (Entered: 07/16/2019)
41 ORDER granting 40 Motion for Extension of Time to Answer. The City of Doraville Answer due 8/7/2019. Signed by Judge Richard W. Story on 7/16/2019. (dgr) (Entered: 07/16/2019)
42 ANSWER to 1 COMPLAINT with Jury Demand by The City of Doraville. Discovery ends on 1/6/2020.(Gray, Harvey) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions. (Entered: 08/07/2019)
43 Joint MOTION for Extension of Time to Complete Discovery and to Set Expert and Dispositive Schedules by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (Attachments: # 1 Text of Proposed Order)(Sanders, Anthony) (Entered: 09/04/2019)
44 ORDER granting 43 Motion for Extension of Time to Complete Discovery. The following deadlines are hereby ordered: Plaintiffs' initial identification of expert witness(es) and production of expert reports, if any: January 15, 2020. Defendant to take deposition(s) of Plaintiffs' expert witness(es): February 14, 2020. Defendant's identification of rebuttal expert witness(es) and production of expert reports, if any: March 27, 2020. Plaintiffs to take deposition(s) Defendant's expert witness(es): April 24, 2020. Plaintiffs' expert witness(es) to issue rebuttal reports, if any: May 15, 2020. Discovery closes: June 8, 2020. Cross−motions for summary judgment: July 10, 2020. Responses to motions for summary judgment: August 10, 2020. Replies in support of motions for summary judgment: September 4, 2020. Signed by Judge Richard W. Story on 09/04/2019. (rsg) (Entered: 09/05/2019)
45 CERTIFICATE OF SERVICE for Plaintiffs' First Notice for Production of Documents by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 09/11/2019)
46 CERTIFICATE OF SERVICE for Plaintiffs' First Set of Interrogatories by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 09/11/2019)
47 CERTIFICATE OF SERVICE for Plaintiffs' First Set of Requests for Admission by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 09/11/2019)
48 Certification of Consent to Substitution of Counsel. Alexandra M. Joseph replacing attorney Dianna J. Lee. (Joseph, Alexandra) (Entered: 10/03/2019)
49 Request for Leave of Absence for the following date(s): November 7−12, 2019, December 17, 2019 − January 3, 2020, January 28 − February 4, 2020, by Harvey Scott Gray. (Gray, Harvey) (Entered: 10/25/2019)
50 CERTIFICATE OF SERVICE of Discovery by The City of Doraville.(Joseph, Alexandra) (Entered: 10/25/2019)
51 Joint MOTION for Extension of Time For Expert Schedule by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (Attachments: # 1 Text of Proposed Order)(House, Joshua) (Entered: 11/25/2019)
52 CERTIFICATE OF SERVICE for Plaintiffs' Responses to Defendant's First Notice for Production of Documents by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 11/27/2019)
53 CERTIFICATE OF SERVICE for Plaintiffs' Responses to Defendant's First Set of Continuing Interrogatories by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 11/27/2019)
54 CERTIFICATE OF SERVICE for Plaintiffs' Notice of Deposition of Richard Platto and Request to Produce Documents Before Deposition by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 12/11/2019)
Submission of 51 Joint MOTION for Extension of Time For Expert Schedule , to District Judge Richard W. Story. (sk) (Entered: 12/17/2019)

12/18/2019
12/18/2019
02/05/2020 02/26/2020 02/26/2020 02/26/2020 02/27/2020 03/06/2020 03/23/2020 04/01/2020 04/01/2020
04/02/2020

55 ORDER granting 51 Motion for Extension of Time For Expert Schedule. The following deadlines are ordered: Plaintiffs' initial identification of expert witness(es) and production of expert reports, if any: February 5, 2020. Defendant to take deposition(s) of Plaintiffs' expert witness(es): March 4, 2020. Defendant's identification of rebuttal expert witness(es) and production of expert reports, if any: April 3, 2020. Plaintiffs to take deposition(s) of Defendant's expert witness(es): May 1, 2020. Plaintiffs' expert witness(es) to issue rebuttal reports, if any: May 22, 2020. Discovery closes: June 8, 2020. Cross−motions for summary judgment: July 10, 2020. Responses to motions for summary judgment: August 10, 2020. Replies in support of motions for summary judgment: September 4, 2020. Signed by Judge Richard W. Story on 11/26/2019. (rsg) (Entered: 12/18/2019)
56 ORDER granting 51 Joint MOTION for Extension of Time For Expert Schedule filed by Byron Billingsley, Janice Craig, Hilda Brucker, Jeffery Thornton. The following deadlines are ordered: Plaintiffs' initial identification of expert witness(es) and production of expert reports, if any: February 5, 2020. Defendant to take deposition(s) of Plaintiffs' expert witness(es): March 4, 2020. Defendant's identification of rebuttal expert witness(es) and production of expert reports, if any: April 3, 2020. Plaintiffs to take deposition(s) of Defendant's expert witness(es): May 1, 2020. Plaintiffs' expert witness(es) to issue rebuttal reports, if any: May 22, 2020. Discovery closes: June 8, 2020. Cross−motions for summary judgment: July 10, 2020. Responses to motions for summary judgment: August 10, 2020. Replies in support of motions for summary judgment: September 4, 2020. Signed by Judge Richard W. Story on 12/18/2019. (bdb) (Entered: 12/19/2019)
57 CERTIFICATE OF SERVICE for Plaintiffs' Initial Identification of Expert Witness and Expert Report by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 02/05/2020)
58 CERTIFICATE OF SERVICE of Plaintiffs' Notice of Deposition of Edward Carter by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 02/26/2020)
59 CERTIFICATE OF SERVICE of Plaintiffs' Notice of Deposition of Bill Reilly by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 02/26/2020)
60 CERTIFICATE OF SERVICE of Plaintiffs' Notice of Deposition of Corally Rivera by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 02/26/2020)
61 NOTICE to Take Deposition of Nancy L. Zielke filed by The City of Doraville (Gray, Harvey) (Entered: 02/27/2020)
62 Request for Leave of Absence for the following date(s): April 16−21, 2020, May 1−5, 2020, June 4−9, 2020 and December 16, 2020 thru January 4, 2021, by Harvey Scott Gray. (Gray, Harvey) (Entered: 03/06/2020)
63 General Order 20−01 re: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 3/16/2020. (dgr) (Entered: 03/23/2020)
64 Second MOTION for Extension of Time For Expert Schedule by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (Attachments: # 1 Text of Proposed Order)(House, Joshua) (Entered: 04/01/2020)
65 ORDER granting 64 Motion for Extension of Time to Modify the Expert Discovery Schedule. Defendants identification of rebuttal expert witness(es) and production of expert reports, if any: April 17, 2020. Plaintiffs to take deposition(s) of Defendants expert witness(es): May 15, 2020. Plaintiffs expert witness(es) to issue rebuttal reports, if any: June 5, 2020. Discovery closes: June 8, 2020. Cross−motions for summary judgment: July 10, 2020. Responses to motions for summary judgment: August 10, 2020. Replies in support of motions for summary judgment: September 4, 2020. Signed by Judge Richard W. Story on 4/1/2020. (dgr) (Entered: 04/02/2020)
66 Amended General Order 20−01 re COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA

04/17/2020 04/29/2020 05/04/2020
05/13/2020 05/13/2020 05/13/2020 05/21/2020 05/27/2020
06/05/2020

VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 3/30/20. (mmc) (ADI) (Entered: 04/02/2020)
67 CERTIFICATE OF SERVICE by The City of Doraville.(Gray, Harvey) (Entered: 04/17/2020)
68 CERTIFICATE OF SERVICE for Plaintiffs' Notice of Deposition of Michael Brown by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 04/29/2020)
69 SECOND AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 04/30/2020. (rvb) (ADI) (Entered: 05/04/2020)
70 STIPULATION to Designating Certain Individual Testimony as Organizational Testimony of Defendant City of Doraville by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton. (House, Joshua) (Entered: 05/13/2020)
71 CERTIFICATE OF SERVICE for Plaintiffs' Notice of 30(b)(6) Deposition by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 05/13/2020)
72 CERTIFICATE OF SERVICE of Plaintiffs' Special Interrogatories in Lieu of Testimony Under Rule 30(b)(6) by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(House, Joshua) (Entered: 05/13/2020)
73 CERTIFICATE OF SERVICE of Discovery by The City of Doraville.(Joseph, Alexandra) (Entered: 05/21/2020)
74 THIRD AMENDMENT TO GENERAL ORDER 20−01 RE: COURT OPERATIONS UNDER THE EXIGENT CIRCUMSTANCES CREATED BY COVID−19 AND RELATED CORONA VIRUS. Signed by Judge Thomas W. Thrash, Jr. on 05/26/2020. (rvb) (ADI) (Entered: 05/27/2020)
75 CERTIFICATE OF SERVICE for Plaintiffs' Expert Witness Rebuttal Report by Byron Billingsley, Hilda Brucker, Janice Craig, Jeffery Thornton.(Sanders, Anthony) (Entered: 06/05/2020)

 
 Case 1:18-cv-02375-RWS Document 1 Filed 05/23/18 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HILDA BRUCKER; JEFFERY THORNTON; JANICE CRAIG; and BYRON BILLINGSLEY,

Plaintiffs,
vs.
THE CITY OF DORAVILLE, a Georgia municipal corporation,

Civil Action No. ___________
PLAINTIFFS’ COMPLAINT FOR DECLARATORY AND INJUNCTIVE
RELIEF

Defendant.

Plaintiffs Hilda Brucker, Jeffery Thornton, Janice Craig, and Byron Billingsley, by their undersigned counsel, allege as follows:
INTRODUCTION 1. This lawsuit is a constitutional challenge to a municipality’s policy and practice of using its law enforcement and municipal court system for revenue generation. 2. Courts, prosecutors, and law enforcement are public officials, entrusted with discretion over the cases they adjudicate or prosecute. 3. The U.S. Supreme Court has held that municipal courts cannot have, or appear to have, an independent interest, such as a financial interest, in
1

Case 1:18-cv-02375-RWS Document 1 Filed 05/23/18 Page 2 of 30
obtaining convictions. 4. The U.S. Supreme Court has also stated that the government violates
a defendant’s constitutional rights when prosecutors and law enforcement have a financial interest in convicting the defendant.
5. Therefore, a municipality may not use, or appear to use, its municipal court, municipal prosecutor, police department, or property code enforcement officers to generate revenue in order to fund the municipality, including those very departments and individuals.
6. But municipalities that budget to receive fines and forfeitures revenue do exactly that: They are using, or appearing to use, their municipal courts, prosecutors, police, and code enforcement officers to generate revenue. Municipalities that rely on such revenues to balance their budgets create financial incentives to ticket, convict, and fine defendants. These financial incentives are unconstitutional.
7. Defendant the City of Doraville budgets to receive millions of dollars from municipal court fines, fees, and forfeitures, which account for anywhere between about a fifth to about a third of its general operating revenues.
8. Doraville’s City Council heavily relies on these revenues to balance the City’s budget.
2

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9. Therefore, Doraville’s municipal court personnel—who serve at the pleasure of Doraville’s City Council—have a financial incentive to convict defendants.
10. This financial incentive to convict infects Doraville’s municipal court with a bias or an appearance of bias in violation of the U.S. Constitution.
11. Moreover, Doraville law enforcement personnel—who are paid from Doraville’s revenues and serve at the ultimate pleasure of its City Council—have an incentive to ticket and prosecute to raise revenue. The same is true of the independent contractor whom Doraville employs to issue code enforcement tickets against property owners.
12. This financial incentive to ticket and prosecute injects an unconstitutional financial bias or an appearance of such bias into law enforcement and prosecutorial discretion.
13. Under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, Doraville’s policy and practice of budgeting for fines, fees, and forfeitures revenue, and vigorously ticketing and convicting both residents and passers-through in order to raise revenue, is unconstitutional.
14. Therefore, this lawsuit seeks a declaration and injunction against Doraville’s policy and practice of budgeting to receive revenues from fines, fees,
3

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and forfeitures. 15. Plaintiffs also seek a preliminary and permanent injunction
restraining the city from acting in furtherance of any policy, practice, or custom that violates Plaintiffs’ rights under the Fourteenth Amendment to the U.S. Constitution.
JURISDICTION AND VENUE 16. Plaintiffs bring this civil-rights lawsuit pursuant to 42 U.S.C. § 1983 and the Declaratory Judgments Act, 28 U.S.C. § 2201, for violations of rights, privileges, or immunities secured by the Fourteenth Amendment to the U.S. Constitution. Plaintiffs seek injunctive and declaratory relief against defendant City of Doraville because the City’s financial incentive to ticket, convict, and fine plaintiffs, both facially and as-applied, violates plaintiffs’ constitutional rights. 17. Accordingly, this Court has jurisdiction over plaintiffs’ claims under 28 U.S.C. § 1331 (federal-question jurisdiction) and § 1343 (civil-rights jurisdiction). 18. Venue is appropriate in this Court under 28 U.S.C. § 1391(b)(1) and LR 3.1, NDGa. As described more fully below, the defendant is a municipal corporation residing in DeKalb County, Georgia, which is located in the Northern District of Georgia in the Atlanta Division, 28 U.S.C. § 90(a)(2).
4

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THE PARTIES I. PLAINTIFF HILDA BRUCKER
19. Plaintiff Hilda Brucker (“Hilda”) resides in Doraville at 3495 Raymond Dr.
20. Hilda owns her home. 21. Hilda has lived in her home for over 27 years. 22. Hilda is an author who works from her home. 23. Hilda owns an automobile and frequently drives in Doraville. 24. Hilda has been ticketed, convicted, and fined by the City of Doraville for the condition of her home. 25. Hilda has paid $100 in fines to Doraville’s municipal court. II. PLAINTIFF JEFFERY THORNTON 26. Plaintiff Jeffery Thornton (“Jeff”) resides in Doraville at 3351 Raymond Dr. 27. Jeff owns his home. 28. Jeff’s employer is outside of Doraville and he commutes in his automobile from Doraville every weekday. 29. Jeff has been ticketed, convicted, and fined $1,000 for the condition of his home.
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III. PLAINTIFF JANICE CRAIG 30. Plaintiff Janice Craig (“Janice”) resides in unincorporated DeKalb
County. 31. Janice has been ticketed by Doraville police while driving through
Doraville. 32. Janice has been found guilty by the Doraville municipal court. 33. Janice has paid $215 in fines to the Doraville municipal court. 34. Janice now avoids driving through Doraville and has specifically
avoided the intersection at which she was ticketed. 35. Janice must drive into Doraville to visit her mechanic. She does so
three or four times per year. IV. PLAINTIFF BYRON BILLINGSLEY
36. Plaintiff Bryon Billingsley (“Bryon”) resides in Atlanta, Georgia. 37. Byron is semi-retired and works at a company located in Doraville. 38. Byron drives through Doraville to reach his place of work. 39. Byron has been ticketed by Doraville police when driving through Doraville. 40. Byron has been convicted by the Doraville Municipal Court. 41. Byron has paid $100 to the Doraville Municipal Court.
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V. DEFENDANT CITY OF DORAVILLE 42. At all times alleged, defendant City of Doraville and its agents have
acted under color of state law. 43. The City of Doraville is a Georgia Municipal Corporation operating
under home rule as defined by Georgia Code § 36-35-3. 44. The City of Doraville controls, directs, and funds Doraville’s police
department, code enforcement, prosecutor, and municipal court. STATEMENT OF FACTS
I. THE CITY OF DORAVILLE’S MUNICIPAL COURT SYSTEM 45. Doraville is a suburb of approximately 8,330 people, built around
Buford Highway, a main artery into the Atlanta metropolitan area. 46. As a home rule municipality, Doraville may pass ordinances that
criminalize, as misdemeanors, violations of its Code. 47. As a home rule municipality, Doraville has passed ordinances that
criminalize, as misdemeanors, violations of its Code. 48. As a home rule municipality, Doraville has created a Municipal Court
with jurisdiction to hear all violations of the Doraville Municipal Code, including criminal ones.
49. Doraville’s municipal code is enforced by the Doraville Police 7

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Department. 50. Those portions of the code concerning property maintenance are also
enforced by Clark Patterson Lee, a private architecture firm. 51. When law enforcement tickets an individual under the Doraville
Code, the Doraville law enforcement officer will typically provide the individual with a document, called a “citation/summons,” on which the individual is given a court date.
52. The citation/summons orders the defendant to appear at the Municipal Court for an arraignment on a particular date.
53. If the defendant does not show up for her arraignment, an arrest warrant is issued.
54. At an arraignment, the defendant may plead guilty (or no contest) or elect to go to trial.
55. At Doraville Municipal Court hearings, the Doraville City Attorney acts as the criminal prosecutor.
56. The Doraville Municipal Charter also authorizes the Doraville City Attorney to act as the municipal court judge.1
57. The Doraville Municipal Court has authority to impose criminal
1 Doraville Municipal Charter § 2.14.
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penalties on violators of Doraville’s code.2 58. The standard penalty for any violation of the Doraville Municipal
Code is a criminal misdemeanor of up to $1,000 or six months of imprisonment in Doraville jail.3
59. In 2015, Doraville enacted an ordinance permitting civil citations, as opposed to criminal misdemeanors, “[w]henever a provision of this Code provides for a civil citation to be issued,”4 but there do not appear to be any provisions of the code expressly imposing “civil citations.”
60. The intent behind this 2015 ordinance was to initiate legal actions in a less costly manner, with less due process, by circumventing requirements such as personal service. However, if the defendant refuses to pay for a civil infraction, the Doraville Municipal Court can institute criminal contempt proceedings.5 II. THE CITY OF DORAVILLE HAS A FINANCIAL INCENTIVE TO COLLECT
FINES AND FEES REVENUE 61. Doraville is heavily dependent on revenues it derives from law enforcement through its municipal court. 62. A Doraville newsletter released in spring of 2015 boasted that
2 Doraville Municipal Code § 9-6. 3 Doraville Municipal Code §1-12. 4 Doraville Municipal Code § 1-12(c), 5 See Doraville City Council Minutes, April 20, 2015.
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“[a]veraging nearly 15,000 cases and bringing in over $3 million annually, [Doraville’s] court system contributes heavily to the city’s bottom line.”
63. According to its 2015 budget audit, approximately 27 percent of Doraville’s general revenues were municipal court fines and forfeitures.6
64. Between August 2016 and August 2017, Doraville’s municipal court assessed approximately $3.84 million in fines against defendants.
65. According to data reviewed by the U.S. Commission on Civil Rights, Doraville ranked 6th in the country (of cities with greater than 5,000 people) for the amount of fines, fees, and forfeitures revenues it brought in as a proportion of its total revenues.7
66. Georgia law requires municipalities, like Doraville, to adopt a balanced budget.8
67. Doraville budgets to receive municipal court and law enforcement revenues in order to balance its budget.
68. In the past 5 years, Doraville has budgeted to receive, and has
6 City of Doraville, Annual Financial Report for the Fiscal Year Ending June 30, 2015, available at https://goo.gl/ZbWGiL. 7 U.S. Comm’n on Civil Rights, Targeted Fines and Fees Against Communities of Color: Civil Rights and Constitutional Implications 20–22 (Sept. 2017), http://www.usccr.gov/pubs/Statutory_Enforcement_Report2017.pdf (citing Dan Kopf, The Fining of Black America, PRICEONOMICS, June 24, 2016, https://priceonomics.com/the-fining-ofblack-america/). 8 Ga. Code § 36-81-3(b)(1).
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received, anywhere between 17 and 30 percent of its budget through fines, fees, and forfeitures. III. DORAVILLE’S RELIANCE ON FINES AND FEES REVENUE DRIVES ITS LAW
ENFORCEMENT POLICIES AND PRACTICES 69. Doraville’s budgetary reliance on fines, fees, and forfeiture revenues creates an incentive for its law enforcement officials (including officials in its police, code enforcement, and prosecutor departments, and independent contractors serving those departments) to maximize revenue. 70. Doraville has consistently ranked as one of Georgia’s worst “speed traps.”9 71. According to a 2014 investigation by the Atlanta JournalConstitution, Doraville’s officers write an average of 40 tickets per day.10 72. According to the same 2014 investigation, Doraville writes more tickets per capita than any other jurisdiction in the Atlanta area, averaging $847 per resident.11
9 Andria Simmons, Traffic Tickets: Some Cities Use Interstates as Cash Registers, ATL. J.CONST. (Oct. 24, 2015), available at https://goo.gl/3eDoZx; Associated Press, Doraville Tops List of Traffic Fines Per Capita, WASH. TIMES (Oct. 19, 2014), available at https://goo.gl/S56fx7. 10 Andria Simmons, Atlanta’s Ticket Traps: Slow Down or Pay Up, ATL. J.-CONST. (Oct. 18, 2014), available at https://goo.gl/PcZzYe. 11 Andria Simmons, Policing for Profit? Atlanta’s Leading Ticket Traps, AJC.COM (Oct. 20, 2014), available at https://goo.gl/xcS6ML.
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73. The Atlanta Journal-Constitution investigation added that, “even anecdotally, Doraville appears to be an outlier when it comes to ticket revenue. Doraville collected almost the same amount of total ticket revenue as Roswell, a city with a population nine times larger.”12
74. Citing a former Doraville city councilperson, Governing magazine reported that “[t]he 46 percent of its budget that Doraville devotes to police is the second-highest among more than two dozen metro Atlanta jurisdictions.”13
75. Many of the tickets written by Doraville police are for technical violations that do not involve public health or safety.
76. Between August 2016 and August 2017, nearly $1 million in fines was assessed for driving without a valid license or without valid registration.
77. Doraville’s municipal code is also enforced by a contractor, Clark Patterson Lee, a for-profit architectural firm that appears to focus on propertycode and building-permit enforcement.
78. The ability to seek forfeiture of vehicles and other property provides yet another financial incentive for Doraville law enforcement.
79. Doraville’s budgetary needs create an incentive for Doraville’s
12 Simmons, Atlanta’s Ticket Traps, supra note 10. 13 Andria Simmons, Georgia Towns Are Getting Rich off Speeding Tickets, GOVERNING (Oct. 23, 2014), available at https://goo.gl/S6igvd.
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outsized and prolific law enforcement personnel to devote resources to maximizing revenue instead of spending those resources on public safety.
80. Doraville’s budgetary needs create an incentive for Doraville’s city prosecutor to exercise prosecutorial discretion in a way that maximizes revenues at the expense of the public interest. IV. DORAVILLE’S RELIANCE ON FINES AND FEES REVENUE DRIVES THE
OPERATION OF ITS MUNICIPAL COURT 81. Doraville’s budget is heavily dependent on its municipal court revenues. 82. Doraville can manipulate the operation of its municipal court in order to generate revenue. 83. As noted by a 2015 Doraville City Council report on a requested budget amendment, additional court dates translate into additional revenues: “The addition of more court dates . . . has resulted in increased collections of municipal court fines. . . .”14 84. But Doraville’s municipal court only collects fine revenue when it finds a defendant guilty. 85. When a defendant represented by counsel pleads not guilty and elects
14 City of Doraville, May 2015 Requested Budget Amendment: Summary of Proposed Changes, available at https://goo.gl/EPe3CV.
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to go to trial, it is common for the Doraville prosecutor to either drop charges or bind the case to the Georgia state court system, presumably because it would be too inefficient to litigate.
86. This means that Doraville officials have a financial interest, or an apparent financial interest, in convicting defendants.
87. The City’s budget is prepared by the City Manager. It can be amended and is ultimately adopted by the City Council.15
88. The municipal court judge is both selected by, and serves “at the pleasure of,” Doraville’s City Council.16
89. This means that the same authority, Doraville’s City Council, has ultimate authority over both the City’s finances and its municipal court.
90. The City Council’s direct control over its municipal court is illustrated by a recent budget report, which states that the City Council formulated an “action plan” to “restore Municipal Court fines and forfeitures to previous levels.”17
91. Therefore, Doraville’s budgetary dependence on municipal court revenues leads, or appears to lead, Doraville’s municipal court officials, including
15 Doraville Municipal Code § 2-84. 16 Doraville Municipal Code § 9-1. 17 City of Doraville, FYE 2018 Budget, available at https://goo.gl/tUqTKX.
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its judge and its prosecutor, to perform official duties in a way that maximizes revenues at the expense of the public interest. V. PLAINTIFFS HAVE FIRST-HAND EXPERIENCE WITH DORAVILLE’S
TICKETING AND MUNICIPAL COURT SYSTEM 92. Each of the Plaintiffs has been threatened with tickets or ticketed by the City, or both. 93. Each of the Plaintiffs anticipates being threatened with tickets or ticketed by the City in the future. 94. Each of the four Plaintiffs drives through Doraville at least on occasion and does so under the threat of being ticketed by Doraville’s law enforcement and convicted by Doraville’s municipal court personnel. 95. Plaintiffs Hilda and Jeff live in Doraville, and they and their properties are therefore subject to the jurisdiction of the Doraville municipal court. 96. Plaintiff Janice actively avoids driving through Doraville because of her experience with Doraville’s law enforcement and municipal court. 97. Plaintiff Bryon has to drive through Doraville to reach his place of work. A. Plaintiff Hilda Brucker 98. Plaintiff Hilda Brucker has owned and lived in her Doraville home for over 25 years.
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99. In October 2016, Hilda received a call from a Doraville Municipal Court employee informing her of a failure-to-appear violation.
100. Hilda had not received any notices from the Doraville Municipal Court, but the municipal court employee told her that notices had been mailed.
101. Hilda had never received a warning; nor was she given the option to abate the alleged code violation.
102. The municipal court employee told Hilda to come to the municipal court to “clear the ticket.”
103. Hilda drove to court where she was told to stand at a podium in front of the prosecutor as he explained her violations.
104. Hilda was informed by the prosecutor that she had three outstanding violations
105. The prosecutor asked Hilda to explain why she refused to correct them. Hilda explained that she did not know she was in violation.
106. The Municipal Court “suspended” Hilda’s first two citations and she pleaded no contest to the remaining citation. The Municipal Court ordered Hilda to pay a $100 fine and to serve a 6-month probationary prison term.
107. If Hilda did not pay her fine all at once, and instead chose the monthly payment plan, the total amount due would have grown to $249, including
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probation and other court fees. 108. The non-monetary conditions attached to Hilda’s probation included
reporting to a probation officer, avoiding alcoholic intoxication, and “cooperating with code enforcement upon request.”
109. Violating any condition of probation would subject Hilda to arrest. 110. Hilda was not allowed to pay her fine at the courthouse. She was only allowed to make payment to Doraville’s contracted private probation company. 111. In December 2016, Hilda engaged an attorney who filed a motion to vacate her sentence. 112. Hilda’s counsel eventually obtained copies of her “citation/summons” from a Doraville code enforcement officer alleging three violations: (1) “Rotted wood on house and chipping paint on fascia boards”; “(2) High weeds in backyard and ivy on tree and vines on house”; and (3) “Driveway in a state of disrepair.” 113. Because of Doraville’s code enforcement, Hilda obtained a home equity line of credit in order to afford any fixes that might be demanded by the City and to pay for any penalties she incurred. 114. The Municipal Court, though not formally granting the motion, sent Hilda a notice of a “rescheduled” court date. That court date was continued at least four times over a period of six months—Doraville’s prosecutor apparently having
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no interest in responding to Hilda’s motions. 115. In August 2017, Doraville’s prosecutor finally dropped the charges
against Hilda, and dismissed her case, but only after she had paid her $100 fine. 116. Hilda was not refunded her fine and there is no paperwork
documenting Hilda’s dismissal. 117. The point of ticketing Hilda was not to protect public health or safety,
it was to collect a fine. 118. Like anyone with an older home, and like anyone with a garden, there
potentially could be code violations on her property at any one time that Hilda is not aware of, even while trying to keep her property in order. Doraville could cite her for such violations in the future, just as it has in the past.
119. As a homeowner in Doraville, and (as she owns and drives a motor vehicle) a driver in Doraville, Hilda is subject to the jurisdiction of Doraville’s municipal court. She lives under the threat of being ticketed again by Doraville code enforcement and law enforcement and convicted by Doraville’s municipal court personnel.
B. Plaintiff Jeffery Thornton 120. In July 2015, Plaintiff Jeff Thornton received a code enforcement warning (an “advisory notice”), stating that his “trailer cannot be in grass—must be
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parked on hard surface” and that he should “call about the logs in backyard.” 121. Jeff moved his trailer. He cannot recall whether he called about the
wood logs he used for his woodworking hobby. 122. In December 2015, Jeff received another warning about the logs of
wood, stating that “wood must be cut for usage [illegible] exactly 4x4x8 sections.” 123. On June 6, 2016, a Doraville code enforcement officer knocked on
Jeff’s door and asked that she be permitted to inspect his backyard. Upon inspecting the backyard, the code enforcement officer told Jeff that his wood logs, as well as the firewood he used for camping, must be removed from the yard.
124. On or around July 27, 2016, Jeff received a “notice of arrest warrant” notifying him of a missed court date and a $100 “failure to appear fee.” Jeff had never received notice of a court date.
125. Jeff later received two “citations/summons” in the mail in an envelope post-dated August 22, 2016.The citations were dated June 8, 2016, and appear to have followed the June 6 inspection of Jeff’s backyard. One citation cites the “large pile of tree logs in backyard” and the other citation cites “[b]oards, buckets, trimmings, and screen against house.”
126. Jeff went to trial on October 10, 2016, for both of the violations. He was found guilty on the wood logs violation. The other violation was “suspended.”
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127. Jeff was originally sentenced to a $1000 fine. After he informed the municipal court judge that he could not afford a $1000 fine, the court lowered the sentence to $300 and 12 months of probation.
128. Jeff’s probation terms required him to pay a $40-per-month fee for “pay only” probation to Professional Probation Services, the probation service contracted with the Doraville Municipal Court.
129. Following the Municipal Court’s sentencing, Jeff told a Doraville code enforcement official that he could not afford even the $300 fine. The code enforcement official then told him that the charges would be dropped.
130. In other words, Doraville ceased its ticketing and collection efforts once it was clear that Jeff could not pay. Public health or safety was never the point of its enforcement action against Jeff.
131. Like anyone with an older home, and like anyone with a garden, there potentially could be code violations on his property at any one time that Jeff is not aware of, even while trying to keep his property in order. Doraville could cite him for such violations in the future, just as it has in the past.
132. But as a homeowner in Doraville, and (as he owns and drives a motor vehicle) a driver in Doraville, Jeff is subject to the jurisdiction of Doraville’s municipal court. He lives under the threat of being ticketed again by Doraville
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code enforcement and law enforcement and convicted by Doraville’s municipal court personnel.
C. Plaintiff Janice Craig 133. Plaintiff Janice Craig received a traffic ticket in September 2016, when she was pulled over by a Doraville police officer after changing lanes. 134. Janice was going eastbound on Buford Highway when she realized she was in a turn lane. Janice slowed down to safely exit the turn lane before reaching the intersection. 135. The officer told Janice that she had changed lanes in a way that held up traffic. 136. When Janice protested to the officer, he forcefully told her that it was all on video and he could show her the video if she did not believe that she did anything wrong. 137. Janice was ordered to appear at the Doraville Municipal Court. 138. Janice pleaded guilty at her court date and received a $215 fine for “failure to obey traffic signs or control.” 139. Janice does not live in Doraville and now avoids it because of its law enforcement practices. 140. When driving near Doraville, Janice will sometimes take a circuitous
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route around Doraville in order to avoid its law enforcement practices. 141. In fact, since her ticket, Janice has avoided Doraville city streets and
remains on I-285 even if doing so may increase her trip’s duration. 142. Janice has specifically avoided the intersection at which she was
ticketed. 143. Janice is nevertheless forced to drive through Doraville on occasion to
reach her mechanic. She does this about three or four times per year. 144. Janice makes trips to her mechanic in fear of once again being ticketed
by Doraville’s law enforcement and convicted by Doraville’s municipal court personnel.
145. As a driver who drives within the city limits of Doraville, Janice lives under the threat of being ticketed again by Doraville law enforcement and convicted by Doraville’s municipal court personnel.
D. Plaintiff Byron Billingsley 146. Plaintiff Byron Billingsley received a ticket after changing lanes without using a turn signal. 147. At approximately 12:30 P.M., on July 10, 2017, Byron was driving North on Pleasantdale Road. 148. At the intersection of Pleasantdale and Oakcliff Road, a large truck
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was having a difficult time crossing the railroad tracks, moving approximately five miles per hour.
149. Pleasantdale is four lanes at that intersection (two in each direction) so, after waiting a few moments, Byron turned into the unblocked lane and continued.
150. A Doraville officer, from an intersection 1000 feet away, pursued Byron, pulled him over, and wrote him a ticket.
151. Byron hired counsel to appear at his court date and was able to have his ticket reduced to $100 after pleading guilty.
152. Byron’s workplace is located in Doraville and he must drive through Doraville to reach it. He does so several times a week.
153. Byron regularly drives through Doraville under the threat of again being ticketed by Doraville’s law enforcement and convicted by Doraville’s municipal court personnel.
154. As a driver who drives within the city limits of Doraville, Byron lives under the threat of being ticketed again by Doraville law enforcement and convicted by Doraville’s municipal court personnel.
CONSTITUTIONAL VIOLATIONS FIRST CLAIM FOR RELIEF
(Due Process Clause Violation—Biased Adjudication) 155. Plaintiffs reallege and incorporate by reference each and every
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allegation set forth in paragraphs 1 through 154 above. 156. The Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution prohibits judicial officers from having a direct or indirect financial interest in a proceeding, regardless of whether this interest is institutional or personal.
157. Doraville’s reliance on its civil and criminal code to raise revenue creates an institutional incentive for the City to ticket, convict, and fine defendants, regardless of the nature of an individual’s offense.
158. Doraville’s institutional reliance on revenue from fines, fees, and forfeitures creates a conflict between the City’s pecuniary interest and the municipal court personnel’s obligations to be, and appear, disinterested and to serve the interests of justice. This conflict exists regardless of whether such personnel actually do violate their obligations to be disinterested and serve the interests of justice.
159. Doraville’s institutional reliance on revenue from fines and fees creates an appearance of bias that results in a lack of due process of law in the trial of defendants charged before the Doraville Municipal Court.
160. Doraville’s institutional pecuniary interest in raising revenue also creates an unconstitutional risk that irrelevant and impermissible factors can
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influence the decision to prosecute a defendant or the nature of any plea bargain or negotiated settlement of a civil or criminal enforcement action.
161. Doraville’s institutional reliance on revenue from fines, fees, and forfeitures creates a conflict between the City’s pecuniary interest and the prosecutor’s obligation to be, and appear, disinterested and to serve the interests of justice. This conflict exists regardless of whether the prosecutor actually does violate his or her obligations to be disinterested and serve the interests of justice.
162. Doraville’s institutional reliance on revenue from fines, fees, and forfeitures creates a bias or an appearance of bias that results in a lack of due process of law in the trial of defendants charged by the Doraville city government.
163. Because Doraville’s policies, practices, and customs have created a situation where prosecutors and municipal court personnel have an incentive to convict and fine defendants, the City has violated, and will continue to violate, the due process rights of Plaintiffs.
164. As a direct and proximate result of the City’s actions, Plaintiffs have suffered irreparable injury to their constitutional rights.
165. As a direct and proximate result of Doraville’s policy, practice, and custom of administrating its prosecutorial efforts and its municipal court in order to generate revenue, Plaintiffs will suffer irreparable injury to their constitutional
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rights. 166. Declaratory and injunctive relief is necessary to remedy Doraville’s
unconstitutional conduct, or the appearance of the unconstitutional conduct, of ticketing, convicting, and fining defendants in order to generate revenue for the City. Without appropriate declaratory and injunctive relief, Doraville’s unconstitutional policies and practices will continue.
SECOND CLAIM FOR RELIEF (Due Process Clause Violation—Biased Prosecution and Law Enforcement)
167. Plaintiffs reallege and incorporate by reference each and every allegation set forth in paragraphs 1 through 166 above.
168. The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution requires that criminal prosecutors and law enforcement be neutral and objective.
169. It is a violation of Due Process for prosecutors or law enforcement to have a personal, or institutional, financial stake in the cases they prosecute.
170. Doraville has a massive financial interest in the cases that it brings. The City is largely dependent on obtaining, from the people that it prosecutes, fines, fees, and forfeitures revenues.
171. This financial interest distorts or threatens to distort Doraville’s exercise of prosecutorial and law enforcement discretion.
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172. This financial interest incentivizes Doraville personnel to obtain convictions at the expense of the public interest.
173. This financial interest incentivizes Doraville personnel to obtain convictions at the expense of the stringent ethical responsibilities of prosecutors.
174. This financial interest incentivizes Doraville’s law enforcement personnel to vigorously issue tickets or citations, and prosecute them at the expense of the public interest.
175. Because Doraville’s policies, practices, and customs have created a situation where prosecutors and law enforcement have an incentive to convict and fine defendants, the City has violated, and will continue to violate, the due process rights of the named Plaintiffs.
176. As a direct and proximate result of the City’s actions, Plaintiffs have suffered irreparable injury to their constitutional rights.
177. As a direct and proximate result of Doraville’s policy, practice, and custom of administrating its prosecutorial efforts and law enforcement in order to generate revenue, Plaintiffs will suffer irreparable injury to their constitutional rights.
178. Declaratory and injunctive relief is necessary to remedy Doraville’s unconstitutional conduct, or appearance of unconstitutional conduct, of ticketing,
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convicting, and fining defendants in order to generate revenue for the City. Without appropriate declaratory and injunctive relief, Doraville’s unconstitutional policies and practices will continue.
REQUEST FOR RELIEF WHEREFORE, Plaintiffs respectfully request the following relief: 1. For a declaration that Doraville’s systemic policy, practice, and custom of budgeting for, and relying on, revenue from fines, fees, and forfeitures generated by its code enforcement, policing, and municipal court systems violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; 2. For a declaration that Doraville’s systemic policy, practice, and custom of budgeting for revenue from fines, fees, and forfeitures imposed for violations of the Doraville Municipal Code, and taking actions in order to meet that budgeted amount, violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; 3. For issuance of preliminary and permanent injunctions restraining Doraville from acting in furtherance of policies, practices, or customs that violate Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; 4. For an award of nominal damages in the amount of $1.00;
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5. For an award of attorney’s fees, costs, and expenses in this action pursuant to 42 U.S.C. § 1988; and
6. For further legal and equitable relief as this Court may deem just and proper. Dated this 23rd day of May, 2018.
Respectfully submitted, /s/ Frank B. Strickland Frank B. Strickland Georgia Bar No. 687600 STRICKLAND BROCKINGTON LEWIS LLP Midtown Proscenium, Suite 2200 1170 Peachtree Street NE Atlanta, GA 30309 Tel: (678) 347-2200 Fax: (678) 347-2210 Email: fbs@sbllaw.net
Joshua A. House* California Bar No. 284856 INSTITUTE FOR JUSTICE 901 N. Glebe Rd., Suite 900 Arlington, VA 22203 Tel: (703) 682-9320 Fax: (703) 682-9321 E-mail: jhouse@ij.org
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Anthony Sanders* INSTITUTE FOR JUSTICE Minnesota Bar No. 0387307 520 Nicollet Mall, Suite 550 Minneapolis, MN 55402 Tel: (612) 435-3451 Fax: (612) 435-5875 Email: asanders@ij.org *Pro Hac Vice Applications to be filed
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 Case 1:18-cv-02375-RWS Document 30 Filed 04/01/19 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

HILDA BRUCKER, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

CITY OF DORAVILLE, a Georgia :

municipal corporation,

:

:

Defendant.

:

:

:

CIVIL ACTION NO. 1:18-CV-02375-RWS

ORDER

This case involves the City of Doraville’s practice of including projected

revenue from fines, fees, and forfeitures in its municipal budget. The

Plaintiffs—four individuals who were cited for various infractions by the

City—challenge that practice as unconstitutional. Specifically, Plaintiffs argue

that by relying on its municipal courts, prosecutors, and law enforcement

officers to generate revenue, Doraville has created impermissible financial

incentives for those civil servants, thus violating the Due Process Clause of the

Fourteenth Amendment. The case is now before the Court on Doraville’s

Motion to Dismiss [15]. After reviewing the record, the Court enters the

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following Order. Background1
Doraville is a municipality that is home to about 8,330 people. Like other Georgia “home rule” municipalities, Doraville passes its own criminal ordinances and tries violations of those ordinances in a municipal court. Doraville’s City Attorney and Police Department primarily enforce the City’s ordinances, except for property violations, which are handled by a private firm called Clark Patterson Lee.
Doraville’s city council has executive and judicial roles. In its executive capacity, the city council appoints city prosecutors, funds the police department, and creates the City’s annual budget. In its judicial role, the city council appoints a municipal court judge who “hold[s] office at the pleasure of the City Council.” Doraville Municipal Code § 9-1.
Doraville relies on its municipal court as a source of revenue. The City issues thousands of tickets and citations every year and consistently generates $3 million or more annually from fines, fees, and forfeitures, all of which are
1 These facts are taken from the Complaint [1] and for the purposes of this Order are accepted as true.
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prosecuted in municipal court. This revenue constitutes anywhere from 17 to 30 percent of the City’s total yearly revenues. And, at least according to one source, it ranks Doraville 6th in the country for percentage of total revenues from fines, fees, and forfeitures of cities with more than 5,000 people.
Plaintiffs have all been convicted or threatened with conviction in Doraville’s municipal court. Two of them live in Doraville: Hilda Brucker and Jeff Thorton. Ms. Brucker was prosecuted for the condition of her home. She paid a fine and was sentenced to a six-month probation term before her conviction was eventually vacated and the charges dropped. Similarly, Mr. Thorton was prosecuted for having improperly stacked wood in his backyard. And after a trial, Mr. Thorton was found guilty, fined $300, and sentenced to 12 months of probation. The other two Plaintiffs were cited for traffic violations while driving through Doraville—Janice Craig for “chang[ing] lanes in a way that held up traffic” and Byron Billingsley for changing lanes without using a turn signal. Ms. Craig paid $215 in fines, and Mr. Billingsley paid a $100 fine.
Plaintiffs bring two claims for relief under 42 U.S.C. § 1983, seeking nominal damages and injunctive relief. Broadly, those claims allege that “the
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City’s institutional reliance on revenue from fines and fees” incentivizes “the City to ticket, convict, and fine defendants, regardless of the nature of an individual’s offense,” which violates Plaintiffs’ due process rights under the Fourteenth Amendment. Count I challenges the City’s adjudication of municipal violations, while Count II focuses on the incentives for law enforcement officers and prosecutors to obtain convictions. Doraville now moves to dismiss.
Discussion Doraville argues this case should be dismissed for two reasons: (1) the Court lacks subject matter jurisdiction, and (2) Plaintiffs’ Complaint fails to state a claim as a matter of law. The Court begins, as it must, with those issues implicating the Court’s jurisdiction. See McCants v. Alabama-W. Fla. Conference of United Methodist Church, Inc., 372 F. App’x 39, 40 (11th Cir. 2010) (per curiam) (“When a district court has pending before it both a 12(b)(1) motion and a 12(b)(6) motion, the generally preferable approach, if the 12(b)(1) motion essentially challenges the existence of a federal cause of action, is for the court to find jurisdiction and then decide the 12(b)(6) motion.” (quoting Jones v. State of Ga., 725 F.2d 622, 623 (11th Cir.1984))).
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I. Subject Matter Jurisdiction Doraville’s challenge to the Court’s jurisdiction is two-fold: first, that
Plaintiffs lack standing to bring this lawsuit, and second, that Plaintiffs’ claims are barred under the Rooker-Feldman doctrine. The Court lays out the applicable legal standard before considering these arguments on the merits.
A. Legal Standard: Rule 12(b)(1) Rule 12(b)(1) attacks on subject matter jurisdiction come in two forms: facial attacks and factual attacks. See McElmurray v. Consol. Gov’t of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). Factual attacks often require the Court to consider and weigh extrinsic evidence to “satisfy itself as to the existence of its power to hear the case.” Garcia v. Copenhaver, Bell & Associates, M.D.’s, P.A., 104 F.3d 1256, 1261 (11th Cir. 1997). But where, as here, the movant is making a facial attack, the Court need not go beyond the four corners of the Complaint. Rather, the Court is simply to “look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction,” and in doing so, accept the allegations in the complaint as true. McElmurray, 501 F.3d at 1251; see also Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013).
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B. Standing Article III of the Constitution confines the reach of federal jurisdiction to “Cases” and “Controversies.” U.S. CONST. art. III, § 2. A case or controversy exists for purposes of Article III when there is (1) an injury in fact; (2) causation; and (3) redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102–04, (1998); see also Vt. Agency of Natural Res. v. United States ex rel Stevens, 529 U.S. 765, 771 (2000); 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11th Cir. 2003). At issue here is the first element—injury in fact. Under Article III’s injury in fact element, the plaintiff must prove that he suffered an “invasion of a legally protected interest” that is both “concrete and particularized”—i.e., which “affect[s] the plaintiff in a personal and individual way”—as well as “actual or imminent” (as opposed to “conjectural” or “hypothetical”). Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 & n.1 (1992). Steel Co., 523 U.S. at 103. A generalized grievance, by contrast, is where a plaintiff “seek[s] relief that no more directly and tangibly benefits him than it does the public at large[.]” Id. at 574; see also Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940) (explaining that to have standing, plaintiffs must “show an injury or threat to a particular right of their own, as distinguished
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from the public's interest in the administration of the law”). And in that instance, Article III’s particularity requirement bars the plaintiff’s claim. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1555 (2016) (Ginsburg, J., concurring).
Here, Doraville argues that Plaintiffs lack standing because they have failed to establish an injury in fact and their claims amount to mere generalized grievances. According to Doraville, “the only injury alleged in the complaint is a common injury” of the sort that any person living in Doraville, owning property there, or simply passing through, could be subjected to if he or she violates an ordinance or state law. (MTD, Dkt. [15-1] at 14.) Doraville adds that Plaintiffs’ claim for declaratory and injunctive relief must fail because the only threat of future injury to Plaintiffs is the “remote possibility” of being charged, prosecuted, and fined by the City “someday” in the future. (Id. at 16.) See Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (“[A] party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.”).
The Court disagrees and finds that Plaintiffs have sufficiently alleged
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standing under Article III. The Complaint is replete with allegations showing that Plaintiffs were personally harmed—and are likely to be harmed in the future—from the City’s allegedly unlawful reliance on revenue from ticketing, convicting, and fining residents as well as passers-through. Thus, whatever difficulties other courts may face in deciding questions of concreteness and particularity, there are no such difficulties here, where each of the Plaintiffs was cited and subjected to the City’s allegedly unlawful scheme (albeit to varying degrees).
Take, for instance, Hilda Brucker. According to the Complaint she was ticketed for a number of violations related to the condition of her home. Those tickets were for having (1) “rotted wood” on her house and “chipping paint” on its fascia boards; (2) “high weeds” in the backyard and ivy on a tree and vines in the front; and (3) a driveway in a “state of disrepair.” (Compl., Dkt. [1] ¶ 112.) Ms. Brucker had to appear in Doraville’s municipal court “to explain why she failed to correct” those issues. And during the proceedings, the municipal court “suspended” two of the citations. As for the third, Ms. Brucker pleaded no contest and was fined and sentenced to a 6-month probationary term, which carried the possibility of arrest. That ticket was ultimately
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dropped. But not before Ms. Brucker obtained a home equity line of credit so she could afford to fix her house, if ordered to do so by the City.
Taking these factual allegations as true, and drawing all reasonable inferences in Plaintiffs’ favor, Ms. Brucker has a sufficient injury and threat of injury to have standing. She was not only forced to go to municipal court and pay a fine, but there is also no suggestion in the Complaint that Ms. Brucker has since made any changes to her home to fix the maladies that led to her being ticketed in the first place. And those maladies, it is clear, carry the very real possibility of additional fines or even imprisonment.
That Ms. Brucker has not actually been ticketed since the initial proceedings is beside the point: “Pleading a complaint for prospective relief does not require oracular vision[.]” Elend v. Basham, 471 F.3d 1199, 1208 (11th Cir. 2006). And for that reason, the Eleventh Circuit has found that a past injury can be sufficiently indicative of imminent future harm where “the plaintiff has alleged with particularity that a future injury would likely occur in substantially the same manner as the previous injury.” Id.; Church, 30 F.3d at 1339 (standing to pursue a preliminary injunction against the city to prevent arrest, harassment, or removal of the plaintiffs based on their homeless status);
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Lynch v. Baxley, 744 F.2d 1452, 1456 (11th Cir.1984) (standing for mentally ill patient to pursue preliminary injunction even though he was not currently incarcerated because “there [was] every indication that [he] could continue to be the subject of [future] involuntary commitment petitions”); see also Zanders v. Swanson, 573 F.3d 591, 594 (8th Cir. 2009) (“A plaintiff suffers Article III injury when he or she must either make significant changes to obey the regulation, or risk a criminal enforcement action by disobeying the regulation.” (alterations, internal quotations, and citation omitted)); Cutshall v. Sundquist, 193 F.3d 466, 472 (6th Cir. 1999) (standing to challenge statute allowing for the potential release of plaintiff’s status as a convicted sex offender “at any time” because “he face[d] a specific threat of being subject to the release of registry information every day”). Here, the City is engaged in a broad pattern of allegedly unconstitutional behavior that is ongoing. As a result of that practice, the City’s officers write dozens of tickets for ordinance and statutory violations, on a daily basis. Ms. Brucker has already been ticketed multiple times, but is yet to take action that would inhibit future citations for the exact same infractions. And should Ms. Brucker be ticketed again, she will be subjected to—as she already has been—a court said to systematically deprive
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people of their due process rights. The Court therefore finds that Ms. Brucker continues to face a sufficiently imminent threat of injury.
The other Plaintiffs have also been ticketed and subjected to the City’s allegedly unlawful practices for, among other things, having a “large pile of tree logs in backyard” and “fail[ing] to obey traffic signs or control.” The Court, however, need not analyze each Plaintiffs’ injuries individually. It is sufficient for present purposes that Ms. Brucker has standing to bring the claims alleged. Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1003 n.10 (11th Cir. 2004) (citing Jackson v. Okaloosa Cty., 21 F.3d 1531, 1536–37 (11th Cir.1994) (noting that “at least one named plaintiff must have standing for each of the claims”)).
B. Rooker-Feldman Doctrine The Court looks next to whether this action is barred by the RookerFeldman doctrine. See Cormier v. Horkan, 397 Fed. App’x 550 (11th Cir. 2010) (vacating the district court’s dismissal of a complaint alleging constitutional and statutory violations in connection with state court divorce proceedings for failure to state a claim and remanding with instructions to dismiss for lack of jurisdiction under Rooker-Feldman). That doctrine
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embodies the reality that federal district courts do not have jurisdiction to act as appellate courts, and thereby precludes district courts from reviewing final state court decisions. Green v. Jefferson Cty. Comm’n, 563 F.3d 1243, 1249 (11th Cir. 2009). The Supreme Court clarified the scope of the Rooker-Feldman doctrine and held that it is “confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). But that includes—at least in this Circuit—“not only [the] constitutional claims presented or adjudicated by a state court, but also [] claims that are ‘inextricably intertwined’ with a state court judgment.” Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327, 1332 (11th Cir. 2001) (quoting Siegel v. LePore, 234 F.3d 1163, 1172 (11th Cir. 2000) ). “A claim is ‘inextricably intertwined’ if it would ‘effectively nullify’ the state court judgment, or [if] it ‘succeeds only to the extent that the state court wrongly decided the issues.’” May v. Morgan Cty., 878 F.3d 1001, 1005 (11th Cir. 2017) (quoting Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009)).
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Doraville argues that the Rooker-Feldman doctrine bars this action because Plaintiffs’ claims are “inextricably intertwined” with prior municipal court judgments. That is so, the City argues, because a finding that the City’s budgetary practices violate Plaintiffs’ due process rights necessarily requires finding that Plaintiffs’ charges, prosecutions, and sentences were unlawful, and would thereby “effectively nullify” the state court judgments. But that very argument undermines the City’s position.
One of Plaintiffs’ claims—“Biased Prosecution and Law Enforcement”—concerns citations and prosecutorial motives that occurred before Plaintiffs ever appeared in court. And Plaintiffs’ other claim—“Biased Adjudication”—does not challenge the municipal court’s finding that Plaintiffs violated the law (or, more accurately, its taking of guilty pleas), but rather the overarching scheme that led Plaintiffs to court in the first instance. Hence, these claims do not ask the Court to find that the municipal court made an incorrect legal ruling. Rather, they ask the Court to decide whether the City uses unconstitutional practices to incentivize ticketing or taint courtroom procedures in violation of Plaintiffs’ constitutional rights. Simply put, there is a difference between challenging actions taken in the course of obtaining a
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judgment and challenging the judgment itself. See, e.g., Brokaw v. Weaver, 305 F.3d 660, 665–66 (7th Cir. 2002) (quoting Holloway v. Brush, 220 F.3d 767, 779 (6th Cir. 2000)); see also Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 606 (6th Cir. 2007) (“Assertions of injury that do not implicate state-court judgments are beyond the purview of the Rooker-Feldman doctrine.”).
In that way, this case is similar to the Sixth Circuit’s decision in Powers. There, the plaintiff challenged a custom or practice at the public defender’s office of failing to ask for indigency hearings—specifically, he argued that “incarceration, in the absence of any inquiry into [the plaintiff’s] ability to pay the court-imposed fine, violated his [constitutional] rights.” Powers, 501 F.3d at 597. As a result, the plaintiff’s claims necessarily criticized the state trial court’s decision to incarcerate the plaintiff without conducting indigency hearings that the public defenders failed to request. Nevertheless, the Powers court held that Rooker-Feldman did not apply because the plaintiff was “not alleg[ing] that he was deprived of his constitutional rights by the state-court judgment, but rather by the Public Defender’s conduct in failing to ask for an indigency hearing as a prerequisite to his incarceration.” Id. at 606. Likewise,
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here, Plaintiffs do not challenge the fines or sentences imposed by the municipal court. Instead, they claim that the City violated their constitutional rights by implementing a custom or policy that caused them to be deprived of due process. Cf. Arthur v. JP Morgan Chase Bank, NA, 569 F. App’x 669, 675 (11th Cir. 2014) (finding that the Rooker-Feldman doctrine did not bar plaintiffs’ suit for fraud related to the generation of foreclosure-related documents); Ray v. Judicial Corr. Servs., No. 2:12-CV-02819-RDP, 2013 WL 5428360, at *9 (N.D. Ala. Sept. 26, 2013). Just because those claims raise questions about the municipal court’s incentives does not mean they are foreclosed by the Rooker-Feldman doctrine. Accordingly, the Court finds that it has subject matter jurisdiction to proceed with this case. Doraville’s motion under Rule 12(b)(1) is therefore DENIED. II. Failure to State a Claim
Doraville also moves to dismiss the Complaint under Rule 12(b)(6) for failing to state a plausible claim for relief. Like an attack on jurisdiction under Rule 12(b)(1), when dealing with a motion to dismiss under Rule 12(b)(6), “all well-pleaded facts are accepted as true,” and the Court draws all reasonable inference “in the light most favorable to the plaintiff.” Bryant v. Avado
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Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999). In the end, the Court’s task is to determine whether the complaint has “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In this case, however, the Court finds itself unable to adequately assess whether Plaintiffs’ claims are legally cognizable. And that is as a result of the paucity of relevant case law. Indeed, the constitutionality of financially incentivized municipal courts and law enforcement officials has not been a lively point of discussion in the federal courts. There is, however, some guidance in a series of Supreme Court decisions concerning Ohio mayors’ courts—i.e., courts over which the mayor presided. See e.g., Tumey v. Ohio, 273 U.S. 510 (1927); Dugan v. Ohio, 277 U.S. 61 (1928); Ward v. Village of Monroeville, 409 U.S. 57 (1972).
First, in Tumey, the Supreme Court found that a statutory scheme under which a mayor/judge was directly compensated for each conviction in his court violated due process. Tumey, 273 U.S. at 521. A year later in Dugan, the Supreme Court dealt with a differently-structured mayor court. In that case, the
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mayor/judge served as one of five city commissioners, but unlike the mayor in Tumey, he had no executive authority. Dugan, 277 U.S. at 63. Instead, a city manager served as “active executive,” while the commission exercised “the legislative power of the city.” Id. And the mayor/judge’s salary was fixed by the other four members of the commission (although that salary was paid from a general fund that included revenue from fines obtained through the mayor court). Id. Ultimately, the Supreme Court found that the mayor/judge’s role was primarily judicial, and his alleged financial interests were too “remote” to violate the due process rights of those appearing before him. Id. at 65. Nearly fifty years later, however, the Supreme Court found that another mayor/judge’s interest in city finances was impermissible under the Fourteenth Amendment, even though he did not directly receive any portion of the fees collected through court proceedings. Ward, 409 U.S. 57. In reaching that conclusion, the Supreme Court explained:
the test is whether the mayor’s situation is one which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused. Plainly that ‘possible temptation’ may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of
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contribution from the mayor's court. This, too, is a situation in which an official perforce occupies two practically and seriously inconsistent positions, one partisan and the other judicial, (and) necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him. Id. at 60 (internal quotations, citations, and alterations omitted); see also Connally v. Georgia, 429 U.S. 245 (1977) (per curiam) (applying these principles to strike down a statute that compensated justices of the peace based on the issuance of search warrants) . With this precedent, alone, the Court cannot say whether Plaintiffs’ Complaint states a plausible violation of their due process rights. Although these cases are instructive and reveal that certain arrangements are clearly unconstitutional—e.g., where the judicial officer has a “direct, personal, substantial pecuniary interest” in the proceedings, Tumey, 273 U.S. at 523—they do not provide guidance on how to determine when less concrete financial incentives—such as the ones at issue here—make the likelihood of impartiality so great as to violate due process. The Eleventh Circuit is yet to weigh in on this matter. However, other Circuits have endeavored to expound upon the precedent described above and come up with a workable standard. The Sixth Circuit, for instance, has said:
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The amount of mayor’s court fee revenues is just one measure of whether the mayor may reasonably be questioned as being impartial. The more substantial the amount (or percentage) of revenue produced from a mayor's court, the more reasonable it is to question the impartiality of a mayor who has any executive authority. In similar fashion, the more executive authority vested in the mayor, the more reasonable it is to question the impartiality of a mayor who collected even a relatively minor amount of general revenue through a mayor’s court. Thus, inadequate separation of powers in a mayor-judge may occur despite the mayor's court's collection of a fairly small percentage of general fund revenue. DePiero v. City of Macedonia, 180 F.3d 770, 779 (6th Cir. 1999) (adopting the standard articulated in Rose v. Vill. of Peninsula, 875 F. Supp. 442, 452 (N.D. Ohio 1995)). The Ninth Circuit, on the other hand, seems to be more interested in quantifying the analysis. Stepping back, the Ninth Circuit has explained that there are two forms of bias that may violate an individual’s procedural due process rights: (1) where the decision maker has “direct, personal, substantial pecuniary interest in the proceedings;” and (2) when the decision maker does not stand to gain personally but has a strong motive “to rule in a way that would aid the institution.” Alpha Epsilon Phi Tau Chapter Housing Ass’n v. City of Berkeley, 114 F.3d 840, 844 (9th Cir. 1997). In dealing with the latter form—which this case appears to implicate—the Ninth Circuit has focused on
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the amount of revenue generated by fines and penalties to decide “whether the official motive is [so] strong . . . that it reasonably warrants fear of partisan influence on the judgment.” Id. at 846 (internal quotations, citations, and alterations omitted).
Given the uncertainty in this area, the Court finds that a hearing would be useful. Specifically, the Court wishes to address which standard of review should guide the Court’s analysis in ruling on Doraville’s motion to dismiss and define the parameters of this case, should it move forward.
Conclusion For the reasons described above, Doraville’s Motion to Dismiss [15] is DENIED. However, the Court grants, sua sponte, a reconsideration of the motion’s arguments under Rule 12(b)(6). The Court ORDERS the Parties to appear for a hearing to address the proper standard of review and its application in this case. The Courtroom Deputy Clerk will contact counsel to schedule that hearing. The parties may file supplemental briefs addressing these issues not later than 14 days before the hearing.
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SO ORDERED, this 1st day of April, 2019. ________________________________ RICHARD W. STORY United States District Judge
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

HILDA BRUCKER, et al.,
Plaintiffs, v. CITY OF DORAVILLE, a Georgia municipal corporation,
Defendant.

CIVIL ACTION NO. 1:18-CV-02375-RWS

ORDER This case comes before the Court for reconsideration of the City of Doraville’s Motion to Dismiss [15]. After reviewing the record and with the benefit of oral argument, the Court enters the following Order.
Background1 This case involves the system through which Doraville raises revenue from fines, fees, and forfeitures. Doraville, like other Georgia “home rule” municipalities, passes its own criminal ordinances and tries violations of those

1 The facts of this case were fully set out in a previous Order partially ruling on the City’s Motion to Dismiss. (Apr. 1, 2019 Order, Dkt. [30].) For the purposes of this Order, the Court includes a nearly identical—but slightly abbreviated—background to set the stage for deciding the remaining issues.

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ordinances in a municipal court. Doraville’s police department primarily enforces the City’s ordinances, except for property violations, which are handled by a private firm. Those municipal servants issue thousands of tickets and citations every year. And the individuals cited or ticketed are ordered to appear at Doraville’s municipal court.
At municipal court hearings, the City Attorney acts as prosecutor. The judge presiding over those proceedings is appointed by the City Council and “hold[s] office at the pleasure of the City Council.” Doraville Municipal Code § 9-1. The municipal court judge is authorized to impose criminal penalties for violations of the City’s code. The standard penalty is a fine of up to $1,000 or six months imprisonment.
Overall, the City generates $3 million or more annually from fines, fees, and forfeitures that are prosecuted through the municipal court. Those funds constitute anywhere from 17 to 30 percent of the City’s total yearly revenue. Hence, the City is highly dependent on revenue it derives from its municipal court. And so the City Council includes projected revenue from fines, fees, and forfeitures in its municipal budget.
According to Plaintiffs—four individuals who have each been convicted or threatened with conviction in Doraville’s municipal court—“the City’s institutional
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reliance on revenue from fines and fees” incentivizes “the City to ticket, convict, and fine defendants, regardless of the nature of an individual’s offense” in violation of Plaintiffs’ due process rights under the Fourteenth Amendment. Plaintiffs filed this lawsuit challenging the City’s conduct under 42 U.S.C. § 1983. Count I challenges the City’s adjudication of municipal violations, while Count II focuses on the incentives for law enforcement officers and prosecutors to obtain convictions.
Doraville timely moved to dismiss both counts, (Dkt. [15]). The City argued this case should be dismissed because the Court lacks subject matter jurisdiction and because Plaintiffs’ Complaint fails to state a claim as a matter of law. On April 1, 2019, the Court denied Doraville’s motion, finding that it did indeed have jurisdiction. The Court went on, however, to grant reconsideration (sua sponte) on the Rule 12(b)(6) portion of the motion and invited supplemental briefing from the parties “to address which standard of review should guide the Court’s analysis . . . and define the parameters of this case, should it move forward.” Both parties submitted briefs and appeared for oral argument to discuss their positions on June 4, 2019. The Court now reconsiders its previous denial of Doraville’s motion.
Discussion I. Motion to Dismiss Standard
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Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While this pleading standard does not require “detailed factual allegations,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to withstand a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its face when the plaintiff pleads factual content necessary for the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Id.
At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
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at 678. Furthermore, the court does not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. II. Analysis
At the heart of Plaintiffs’ case is the City’s reliance on fines, fees, and forfeitures and the influence that reliance might have on those issuing tickets and resolving offenses in the City’s municipal court. According to Plaintiffs, the City’s institutional practices generate two impermissible conflicts of interest. First, municipal court personnel, including Doraville’s municipal court judges, are financially incentivized to convict defendants appearing before them. And second, the City’s law enforcement personnel, including its prosecutors and police officers, have a financial incentive to ticket and prosecute citizens and passers-through. Plaintiffs argue these conflicts of interest deprived them and others of their rights under the Due Process Clause of the Fourteenth Amendment.
A. Doraville’s Municipal Court The Fourteenth Amendment guarantees that states will not deprive “any person of life liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. Inherent in this guarantee is the concept of neutrality: that people are entitled to “impartial and disinterested” tribunals in civil and criminal proceedings. Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). The neutrality
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requirement ensures that litigants and criminal defendants will be able to present their cases before arbiters who are “not predisposed to find against [them].” Id. Due process is violated, then, when judges have financial interests in the cases over which they preside.
So, in Tumey v. Ohio the Supreme Court overturned a conviction from a “liquor court” where the town’s mayor served as judge because a portion of the mayor’s salary came from costs and fees he imposed while acting in a judicial capacity. 273 U.S. 510, 521–22, 535 (1927). The mayor was therefore disqualified from deciding the plaintiff’s case because he had a “direct pecuniary interest in the outcome.” Id. at 535.
Not every case is so clear, however. And justice, it has been said, must also “satisfy the appearance of justice.” Offutt v. United States, 348 U.S. 11, 14 (1954) (emphasis added). As a result, due process might be violated even if the judge has no “direct, personal, substantial pecuniary interest” in the proceedings, Tumey, 273 U.S. at 523, but there nevertheless exists a “probability of unfairness.” In re Murchison, 349 U.S. 133, 136 (1955); Marshall, 446 U.S. at 243.
For example, in Ward v. Village of Monroeville, the Supreme Court found that another mayor/judge’s interest in city finances was impermissible under the Fourteenth Amendment, even though he did not directly receive any portion of the
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fees he collected, but a “major part” of the village’s total operating funds came from the mayor’s court. 409 U.S. 57, 58, 61–62 (1972). The Court described the applicable test as:
whether the [judge’s] situation is one “which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused.” Id. at 60 (quoting Tumey, 273 U.S. at 532). The mayor’s court in Ward failed under this test because “[p]lainly [such a] ‘possible temptation’ may also exist when the mayor’s executive responsibilities for village finances may make him partisan to maintain the high level of contribution from the mayor’s court.” Id.; see also Tumey, 273 U.S. 535 (finding, too, that the mayor had an “official motive to convict and to graduate the fine [in the plaintiff’s case] to help the financial needs of the village”). The principles from Tumey and Ward still echo today, and the Supreme Court has applied them in various contexts. See, e.g., Connally v. Georgia, 429 U.S. 245 (1977) (per curiam) (striking down a statute that compensated justices of the peace based on the issuance of search warrants); Gibson v. Berryhill, 411 U.S. 564 (1973) (invalidating a system in which a board of optometrists adjudicated charges of professional misconduct filed against other optometrists who would be in competition with the board members); Morrissey v. Brewer, 408 U.S. 471, 485–
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86 (1972) (finding parole officers cannot make a determination that reasonable grounds exist for revocation of parole; rather, that decision should be made by someone who is not directly involved in the case). As have many courts of appeals. See, e.g., DePiero v. City of Macedonia, 180 F.3d 770, 779 (6th Cir. 1999); Alpha Epsilon Phi Tau Chapter Housing Ass’n v. City of Berkeley, 114 F.3d 840, 844 (9th Cir. 1997); Van Harken v. City of Chicago, 103 F.3d 1346 (7th Cir. 1997); In re Al-Nashiri, 921 F.3d 224, 226 (D.C. Cir. 2019). The Eleventh Circuit, on the other hand, has not.2 But in early 1981, the former Fifth Circuit issued Brown v. Vance, which is binding on this Court to the extent it is applicable.3 637 F.2d 272 (5th Cir. 1981). In Brown, the former Fifth Circuit struck down a Mississippi fee system that compensated justices of the peace based on the number of cases they heard. Id. That system, the court found, created a temptation for judges to depart from judicial neutrality in order to entice
2 The Eleventh Circuit has, in fact, relied on Tumey and Ward when analyzing procedural due process challenges, just not in a situation like the one at hand. See, e.g., Davis v. Jones, 506 F.3d 1325 (11th Cir. 2007) (habeas corpus action stemming from judge’s fraternal relationship to one of the prosecutors); but see Harris v. Conradi, 675 F.2d 1212, 1217 (11th Cir. 1982) (citing Tumey and explaining that criminal justice must “be administered in an objectively impartial manner” and “reasonable objective impartiality necessarily relates to the amount of discretion the principle actors enjoy within the system”). 3 In Bonner v. City of Prichard, the Eleventh Circuit Court of Appeals adopted as binding precedent all decisions of the former Fifth Circuit decided before October 1, 1981. 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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plaintiffs—who were allowed to choose where they filed cases—to litigate before
them. Id. Significant for present purposes, the court also expounded upon the
Tumey-Ward test:
In Tumey and Ward the Supreme Court, as we read the opinions in those cases, was not as interested in the probity of an individual judge or perhaps even, of the great majority of judges. It was interested rather in the inherent defect in the legislative framework arising from the vulnerability of the average man-as the system works in practice and as it appears to defendants and to the public. The Court’s inquiry there and our inquiry here is not whether a particular man has succumbed to temptation, but whether the economic realities make the design of the fee system vulnerable to a “possible temptation” to the “average man” as judge. Here we have no need to be solicitous of the honor of a particular judge; none has been questioned. Nor do concerns of judicial administration necessarily require a high evidentiary barrier. The Tumey-Ward test, in sum, is levelled at the system, not the individual judge. This is the reason it speaks of temptation to the average man. The “average man as judge” concept was made the heart of the test to introduce a humble Everyman, prey to the vicissitudes of life, the need for bread on the table, and for small favors from the right people.
Id. at 284 (emphasis added). For this reason, the Court is not convinced that the
inquiry should be completely affixed on the individual decision-maker (that is, the
one actually adjudicating cases as opposed to the municipal structure more
broadly) like Doraville suggests. Instead, Brown makes clear that the Court’s
focus should be on the municipal structure as a whole and whether it would appear,
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to the average citizen, that that system potentially fuels impropriety in judicial proceedings. Id.4
Still, the parties disagree over how to evaluate the existence of such institutional bias. In other words, how do the principles described above translate into a workable test? While the case law makes clear that certain arrangements are clearly unconstitutional—e.g., where the judicial officer has a “direct, personal, substantial pecuniary interest” in the proceedings, Tumey, 273 U.S. at 523—it does not elucidate how to determine when less concrete financial incentives—such as those at issue here—make the likelihood of impartiality so great as to violate due process. For Doraville, the threshold issue when deciding if institutional bias exists is whether the system vests in the decision-maker both judicial and executive authority. And in this case, Doraville insists, that issue is dispositive because the City’s municipal court judges lack any executive responsibilities; they are, instead, simply judges.
4 This is not to suggest that the Court’s focus is entirely on the City Council either, as Plaintiffs seem to advocate. There is no case, to the Court’s knowledge, that takes such an approach, and Plaintiffs have not articulated why, for instance, a wholly independent judiciary—say, with judges having life tenure—that operates under the same system as Doraville would nevertheless violate the Due Process Clause. No, instead the caselaw strikes a middle ground between the parties. That precedent instructs the Court to examine whether Doraville’s municipal structure and systemic reliance on fines, fees, and forfeitures creates a potential for biasing City officials sufficient to violate due process.
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The City’s best case on this point is Dugan v. Ohio. 277 U.S. 61 (1928). There, the Supreme Court found that the institutional interests of a mayor exercising judicial functions were too remote to create an unconstitutional conflict of interest. Influential in the Court’s analysis was that, unlike the mayor in Tumey, the mayor in Dugan had no executive authority. Id. at 63. Instead, a city manager served as “active executive,” while a commission—of which the mayor was one of five members—exercised “the legislative power of the city.” Id. And the mayor/judge’s salary was fixed by the other four members of the commission (although that salary was paid from a general fund that included revenue from fines obtained through the mayor court). Id. Thus, the Supreme Court found that the mayor/judge’s role was primarily judicial, and his alleged financial interests were too “remote” to violate the due process rights of those appearing before him. Id. at 65.
The Court is not persuaded, however, that Dugan means to suggest that executive-judicial comingling is categorically required in these types of cases. Certainly, the blending of governmental responsibilities is relevant, but it is not, in this Court’s opinion, dispositive. Instead, the Court agrees with Plaintiffs that the first question in the analysis is, more broadly, whether there exists a conflict of interest.
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In reaching this conclusion, the Court is guided by common sense and precedent. As for common sense, look just a bit further than the allegations in the Complaint. All else being equal, imagine that direct evidence comes to light that one of Doraville’s municipal court judges is, in fact, finding citizens guilty for violating City ordinances, even where proof of culpability is lacking, solely to increase revenue for the City. In that event, could it be said that the tribunal is “impartial and disinterested,” Marshall, 446 U.S. at 242, even though the judge has neither a “direct pecuniary interest in the outcome” of cases, Tumey, 273 U.S. at 523, nor executive responsibilities? Surely not.
But even setting hypotheticals aside, the Supreme Court’s decision in Marshall v. Jerrico, Inc. offers some guidance. 446 U.S. 238 (1980). To begin, that case involved “administrative prosecutors” charged with enforcing certain provisions of the Fair Labor Standards Act involving child labor; they were not judges, and Marshall makes clear that while the Due Process Clause imposes certain limits on prosecutors, those limits are less stringent than the ones applicable to judges. See also infra Part II.B. Necessarily, then, a threshold inquiry is whether the official is “performing judicial or quasi-judicial functions,” or is instead a public official “acting in a prosecutorial or plaintiff-like capacity.” Id. at 248. The importance of this distinction—at least for present purposes—is that the
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Marshall Court confirmed that due process applies, not just to judges, but to other public officials as well, albeit to a lesser extent. And as for judges, the Court clarified that Tumey and Ward’s stricter standards control because it is the duty of judges “to make the final decision,” and it is judges “whose impartiality serves as the ultimate guarantee of a fair and meaningful proceeding in our constitutional regime.” Id. at 250. This tenet applies with equal force to judges across the board—regardless of which level of government they serve and regardless of whether their functions are wholly judicial or quasi-judicial.
The Supreme Court also alluded to several factors that might bear on whether a law, procedure, or program unconstitutionally biases an official. A judge in another district summarized those factors as follows: “(i) whether the amount of penalties or prosecutions affects an official’s salary; (ii) the official’s authority over allocating the penalty funds; (iii) the percentage of the budget that the fees and penalties constitute; and (iv) whether surplus funds are allocated to the program or to other programs.” Harjo v. City of Albuquerque, 326 F. Supp. 3d 1145, 1184 (D.N.M. 2018) (citing Marshall, 446 U.S. at 245–46, 250–51). The Court does not suggest that this list of factors is exhaustive, nor is any one factor dispositive. But the Justices’ consideration of them suggests that due process
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concerns might be raised even absent the vesting of nonjudicial functions in the courts.
This approach also tracks recent decisions from another district. Cain v. City of New Orleans, 281 F. Supp. 3d 624, 654–59 (E.D. La. 2017); Caliste v. Cantrell, 329 F. Supp. 3d 296, 317–18 (E.D. La. 2018). The Court agrees with those judges and Plaintiffs that the relevant standard involves two questions: First, is there a conflict of interest? Second, is the conflict of interest substantial?
While the need for the first question should be obvious, the reasoning behind the second might not be. It is derived from Tumey. The Supreme Court, there, emphasized that mayor courts are not, in every event, unconstitutional because “[t]he minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final judgment without a jury, do not involve any such addition to the revenue of the village as to justify the fear that the mayor would be influenced in his judicial judgment by that fact.” Tumey, 273 U.S. at 534. So institutional conflicts of interest with minimal effects do not implicate due process because they do not provide a legitimate incentive for officials to stray from neutrality; instead, the official motive must be, as thenretired Justice White described it, “strong”—so strong that it “reasonably warrants fear of partisan influence on the judgment.” Alpha Epsilon Phi Tau Chapter Hous.
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Ass’n v. City of Berkeley, 114 F.3d 840, 847 (9th Cir. 1997) (alterations omitted); and compare Rose v. Vill. of Peninsula, 875 F. Supp. 442, 451 (N.D. Ohio 1995) (annual collection of fines amounting to more than 10 percent of the city’s general revenue fund was “substantial”), with Wolkenstein v. Reville, 694 F.2d 35, 43 (2d Cir. 1982) (fees imposed “sporadic[ally]” or “occasional[ly]” and represented little more than 0.5 percent of the budget were not substantial).
As for the conflict, itself, a variety of factors could bear on whether a conflict of interest exists, see, e.g., Harjo, 326 F. Supp. 3d at 1184, and the absence of one or more factors might be outweighed by the substantiality of other factors under the test’s second prong. As an example, the amount of revenues produced from the court is one measure of whether the judge may reasonably be perceived as impartial, and the degree of executive authority transferred to the judge is another. The more substantial the percentage of revenues, the more reasonable it is to question the impartiality of the judge, even if that judge has little to no executive authority. Likewise, if the judge is vested with broad executive authority, it might be reasonable to question that judge’s neutrality even if the court is responsible for only a minor percentage of the city’s overall revenue. Cf. DePiero v. City of Macedonia, 180 F.3d 770, 779 (6th Cir. 1999).
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In sum, to state a plausible due process claim for institutional bias, Plaintiffs must allege sufficient facts to establish two things: (1) that there is a conflict of interest and (2) that the conflict of interest is substantial. Applying that standard to Count I, the Court now considers whether Doraville’s municipal court comports with the requirements of procedural due process.
1. Is there a conflict of interest? To begin, it is important to reiterate that Doraville’s municipal court judges lack any executive authority. They are not members on the City Council, nor do Plaintiffs allege that they have any say in the allocation of City funds. But, while an arrangement in which judges are vested with broad executive responsibilities could raise separation of powers concerns, see Ward, 409 U.S. at 60, equally threatening to judicial independence is a local governing body’s authority to summarily remove local judges or magistrates, cf. Winter v. Coor, 695 P.2d 1094 (Ariz. 1985); State ex rel. Morales v. City Comm’n of City of Helena, 570 P.2d 887 (Mont. 1977). In Doraville, that is exactly what is happening: The municipal court judge “hold[s] office at the pleasure of the City Council.” Doraville Municipal Code § 9-1. To that end, a critical aspect of Plaintiffs’ argument is that Doraville’s municipal court judges are hired by and can be fired at will by the City Council.
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Doraville responds that the City Council does not enjoy unfettered authority to terminate municipal court judges because that authority is abated by Georgia law. Specifically, O.C.G.A. § 36-32-2.1 prohibits removal of municipal court judges without cause that “adversely affects the administration of the office of the judge and the rights and interests of the public” and requires a two-thirds’ vote of the governing authority following notice and a public hearing. O.C.G.A. § 36-322.1(a)–(c), (d). At this stage, however, Doraville’s position is unavailing. For one thing, there are no allegations in the Complaint suggesting that Doraville’s City Council actually follows these restrictions, or that it would should municipal court revenues fall. Nor, for that matter, is it entirely clear that firing a judge who allowed court revenues to fall—and hence compromised the City’s financial wellbeing—would run afoul of § 36-32-2.1.
Thus, while a municipal court judge’s success undoubtedly depends on a variety of factors, chief among them is the support and good will of the City Council. The City Council, in turn, has an obvious incentive to maximize revenue from the municipal court. Of course, it is true that the City Council’s concerns transcend the collection of fines, fees, and forfeitures. But the importance of municipal court revenues in Doraville cannot be ignored. Millions of dollars each year are generated from the enforcement of Doraville’s criminal ordinances. And
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the Court cannot assume that Doraville is more interested in compliance with its criminal ordinances than it is with collecting fines and fees from those who violate them. After all, many of the ordinances at issue were not enacted in furtherance of public health and safety (at least not at face value); they deal, instead, with aesthetics—for instance, a home having chipped paint, overgrown vegetation, or logs stacked in the yard. Doraville therefore has as much to gain (if not more) from citizens violating these ordinances, as it does from everyone adhering to them. And a violation of the City’s ordinances is no minor ordeal. It carries the potential for serious criminal penalties including hefty fines or even jail time. As one legal authority puts it, “Embodied in the due process concept are the basic rights of a defendant in criminal proceedings,” Due process of law, BLACK’S LAW DICTIONARY (6th ed. 1990), which as we know, includes the opportunity to appear before “a neutral and detached judge.” Ward v. Vill. of Monroeville, 409 U.S. 57, 62 (1972).
The City Council’s control over the appointment and tenure of municipal court judges is therefore concerning because it calls into question those judges’ autonomy. What is more, the City Council essentially sets a target for municipal court judges to hit: It “budgets [each year] to receive millions of dollars from
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municipal fines, fees, and forfeitures,” (Compl., Dkt. [1] ¶ 7), all of which are imposed and assessed by municipal court judges.
Equally important is the percentage those criminal penalties make up of the City’s general fund—indeed, up to 30 percent. “In both Tumey and Ward the [Supreme] Court put great emphasis on the fact that the revenues generated by the [courts at issue] were very substantial and vitally important to the village’s fiscal well being.” Wolkenstein v. Reville, 694 F.2d 35, 43 (2d Cir. 1982) (citing Tumey, 273 U.S. at 521; Ward, 409 U.S. at 58–59). So too in Doraville. The City is heavily reliant on revenues from its municipal courts, meaning that failure to maintain a strict policy of conviction might make it impossible for the City to balance its budget. In that event the municipal court would likely suffer too. Since such a significant portion of Doraville’s yearly revenue comes from fines, fees, and forfeitures, it is reasonable to infer that the municipal court is dependent on those funds. And by extension, that if fine, fee, and forfeiture revenues fall too much or disappear completely, the officials working there would face pay cuts or lose their jobs.
Doraville’s municipal court judges, then, are not well insulated from the pressures of their partisan superiors or the burden of funding the municipality. So much so that an “average man” in those judges’ shoes could fail “to hold the
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balance nice, clear, and true between the state and the accused.” Ward, 409 U.S. at 60. The Court thus finds that Plaintiffs have sufficiently alleged that a conflict of interest exists.
2. Is the conflict substantial? Doraville does not seriously dispute that, assuming a conflict exists (as the Court has already found) the conflict is substantial. Indeed, revenues from the municipal court are obviously important to the City: fines, fees, and forfeitures account for up to 30 percent of the City’s total budget. See also Compl., Dkt. [1] ¶ 62 (referencing a 2015 newsletter that boasted, “[a]veraging nearly 15,000 cases and bringing in over $3 million annually, [Doraville’s] court system contributes heavily to the city’s bottom line.”). That is comparable to the substantiality of fines and fees deemed unconstitutional in several cases, Cain v. City of New Orleans, 281 F. Supp. 3d 624, 657 (E.D. La. 2017) (10 percent of total budget and a quarter of judicial expense fund), Caliste v. Cantrell, 329 F. Supp. 3d 296, 317– 18 (E.D. La. 2018) (bond fees “represent[ed] roughly 20–25% of the total Fund”). And it eclipses others, DePiero v. City of Macedonia, 180 F.3d 770, 780 (6th Cir. 1999) (only a “fairly small amount of general fund revenue [collected] through the mayor’s court” (citation omitted)), and cf. Rose v. Vill. of Peninsula, 875 F. Supp. 442, 454 (N.D. Ohio 1995) (denying summary judgment on due process claim
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where 11.8 to 13.9 percent of the city’s general fund came from the mayor’s court). The municipal court’s own reliance on these funds can be inferred as well, since fines and fees account for such a considerable portion of the City’s budget.
It is worth noting, too, that in all likelihood municipal courts like Doraville’s are the courts with which most people have the most contact. Thus, in looking “at the system,” Brown, 637 F.2d at 284, it seems that the scope of apparent impropriety in the City’s municipal court would be augmented by the number of people exposed to and potentially affected by it.
All things considered, then, the Court the finds that (based on the allegations in the Complaint) the City and its municipal court depend heavily on fines and fees revenue, and Doraville’s municipal court judges have a strong enough motive to maximize those revenue to warrant a reasonable fear of partisan influence in decisions related to ordinance violations and the assessing of criminal penalties. See DePiero, 180 F.3d at 782 (“The Supreme Court’s test does not call for proof of actual temptation. The mere possibility of temptation . . . is all that is required.”). Accordingly, the City’s motion is DENIED as to Count I.
B. Doraville’s Law Enforcement Personnel Beginning with the obvious: Doraville’s police officers and its City Attorney are not judges. And recall that Tumey and Ward’s “rigid requirements” do not
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apply “to those acting in a prosecutorial or plaintiff-like capacity.” Marshall v. Jerrico, Inc., 446 U.S. 238, 248 (1980). That is because, as the Supreme Court put it, “[i]n an adversary system, [prosecutors] are necessarily permitted to be zealous in their enforcement of the law.” Id. But at the same time the Marshall Court made clear that it was not suggesting “the Due Process Clause imposes no limits on the partisanship of [] prosecutors”; they too are “public officials” who “must serve the public interest.” Id. at 249. And as a result, in some cases, a prosecutor’s enforcement decisions may “raise serious constitutional questions,” for instance where a scheme injects “a personal interest, financial or otherwise, into the enforcement process” that brings “irrelevant or impermissible factors” into the decision-making process. Id. at 249–50.
The Court finds that the allegations in the Complaint, construed in the light most favorable to Plaintiffs, describe such an impermissible scheme. The conflicts facing the City’s law enforcement personnel are largely the same as those facing its municipal court judges. See infra Part II.A. That is, the City’s police department and City Attorney’s office, like the municipal court, are dependent on revenues from fines, fees, and forfeitures, and Doraville’s law enforcement personnel, much like its municipal court judges, are subject to the partisan influences of its City Council which is free to de-fund those offices, should it choose. Id.
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This might seem insufficient considering the line drawn between judges and those acting in a prosecutorial capacity. See generally Marshall, 446 U.S. at 246– 50. But in Marshall, the Supreme Court did not “say with precision what limits there may be on a financial or personal interest of one who performs a prosecutorial function, [because in that case] the influence alleged to impose improper bias [was] exceptionally remote.” Id. at 250. In reaching that conclusion, the Court considered, among other things, the degree to which the prosecuting agency depended on the financial penalties it collected. Id. at 250–51. And where, as there, the civil penalties made up “substantially less than 1% of the [agency’s] budget,” due process cannot be violated because “[u]nlike in Ward and Tumey, it is plain that the enforcing agent is in no sense financially dependent on the maintenance of a high level of penalties.” Id.
Here, by contrast, the City relies heavily on revenues derived from prosecuting alleged violations of municipal ordinances—indeed, so much so that it is reasonable to infer that Doraville’s law enforcement arms rely on those funds too. The extent of this profit incentive and its potential to distort these officials’ judgment is a factual issue that the Court cannot resolve on a motion to dismiss. See Marshall, 446 U.S. at 241 (resolved after discovery); Harjo v. City of Albuquerque, 326 F. Supp. 3d 1145, 1193–98 (D.N.M. 2018) (same); see also
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Sourovelis v. City of Philadelphia, 103 F. Supp. 3d 694, 709 (E.D. Pa. 2015) (denying motion to dismiss on a due process claim challenging the police and prosecutors’ “retention of forfeited property and monetary proceeds” because it presented “inherently a factual issue”). As a result, the Court concludes that Plaintiffs have stated a plausible claim sufficient to survive a motion to dismiss. The City’s motion is DENIED as to Count II.
Conclusion Overall, this case presents difficult questions, and the Court allows it to proceed cautiously. The Court is not discounting the fact that most cases relied on by the parties involved a decision-maker who exercised both judicial and executive power. And here, by contrast, there is no allegation that Doraville’s municipal court judges participate in any executive processes, nor do they appear to have any responsibilities beyond those routinely vested in members of the judiciary. Equally troubling is the speculative nature of the alleged financial or personal interests weighing on Doraville’s law enforcement personnel. Whether a number of the facts alleged by Plaintiffs are able to be substantiated will ultimately be critical to Plaintiffs’ case. Discovery in this case may, or may not, support Plaintiffs’ allegations that Doraville’s municipal scheme and institutional reliance on fines, fees, and forfeitures impermissibly incentivize the City’s police officers,
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City Attorney, and municipal court judges. But at this stage, the Court is unwilling—and in fact, unable—to dismiss Plaintiffs’ claims.
For this reason and others described above, after reconsideration, Doraville’s Motion to Dismiss [15] is DENIED.
SO ORDERED this 9th day of July, 2019. ________________________________ RICHARD W. STORY United States District Judge
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