U.S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:19-cv-13553-EEF-MBN

Moran et al v. Landrum-Johnson, et al Assigned to: Judge Eldon E. Fallon Referred to: Magistrate Judge Michael North Cause: 42:1983 Civil Rights Act

Date Filed: 11/11/2019 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Miles Moran For Himself and All Others Similarly Situated

represented by Eric A. Foley Roderick and Solange MacArthur Justice Center 4400 S. Carrollton Avenue New Orleans, LA 70119 504-684-2364 Email: eric.foley@macarthurjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alec George Karakatsanis Civil Rights Corps 1601 Connecticut Ave. NW Washington, DC 20009 202-844-4975 Email: alec@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Gerard Taylor

James William Craig Roderick and Solange MacArthur Justice Center 4400 S. Carrollton Avenue New Orleans, LA 70119 504-620-2259 Email: jim.craig@macarthurjustice.org ATTORNEY TO BE NOTICED
represented by Eric A. Foley (See above for address) LEAD ATTORNEY

V. Consol Plaintiff Larry A Matthews, Jr for himself and all others similarly situated (20-1275)
Consol Plaintiff Ernest Cloud for himself and all others similarly situated (20-1275)
V. Defendant Keva Landrum-Johnson Chief Judge of Orleans Parish Criminal District Court

ATTORNEY TO BE NOTICED
Alec George Karakatsanis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Eric A. Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Craig (See above for address) ATTORNEY TO BE NOTICED
represented by Eric A. Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James William Craig (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 (504) 836-2220 Email: dphayer@burglass.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 504-836-0423

Defendant Paul A Bonin
Defendant Camille Buras
Defendant Darryl A. Derbigny
Defendant Tracey Flemings-Davillier
Defendant Karen K. Herman

Email: mnunezduffourc@burglass.com ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address)

Defendant Robin D. Pittman
Defendant Laurie A White
Defendant Dennis Waldron
Defendant Franz L Zibilich In Their Official Capacity as Judges of the Orleans Parish Criminal District Court

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED

Defendant Arthur L Hunter
Defendant Benedict Willard

represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED

V. Consol Defendant Karen K. Herman Chief Judge of Orleans Parish Criminal District Court, in her official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Paul A Bonin in his official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Camille Buras in her official capacity as Judges of

represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY

the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Darryl A. Derbigny in his official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Tracey Flemings-Davillier in her official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Robin D. Pittman in her official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Dennis Waldron in his official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant

ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED

Laurie A White in her official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Benedict Willard in his official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Franz L Zibilich (20-1275)
Consol Defendant Hunter Harris, IV in his official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)
Consol Defendant Keva M. Landrum in her official capacity as Judges of the Orleans Parish Criminal District Court (20-1275) Consol Defendant

represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
represented by Dennis J. Phayer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED

Keva Landrum-Johnson in her official capacity as Judges of the Orleans Parish Criminal District Court (20-1275)

represented by Dennis J. Phayer , Burglass & Tankersley, L.L.C.
5213 Airline Dr.

Date Filed 11/11/2019
11/12/2019 11/12/2019
11/12/2019 11/13/2019

Metairie, LA 70001
(504) 836-2220 Fax: Email: dphayer@burglass.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc (See above for address) ATTORNEY TO BE NOTICED
# Docket Text
1 COMPLAINT against Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Karen K. Herman, Arthur L. Hunter, Keva Landrum-Johnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Franz L Zibilich, Benedict Willard(Filing fee $ 400 receipt number ALAEDC-7952733) filed by Miles Moran. (Attachments: # 1 Civil Cover Sheet, # 2 Summons) Attorney Eric A. Foley added to party Miles Moran(pty:pla).(Foley, Eric) (Entered: 11/12/2019)
2 Notice of Related Case(s) 17-cv-06197-EEF-MBN, 19-cv-13503 by All Plaintiffs. (Foley, Eric) (Entered: 11/12/2019)
3 MOTION to Certify Class by Miles Moran. Motion(s) will be submitted on 11/27/2019. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Notice of Submission)(Foley, Eric) Modified text/submission date on 11/13/2019 (mm). (Entered: 11/12/2019)
4 Initial Case Assignment to Judge Greg Gerard Guidry and Magistrate Judge Karen Wells Roby. (ess) (Entered: 11/12/2019)
5 Summons Issued as to Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Karen K. Herman, Arthur L Hunter, Keva Landrum-Johnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons,

11/13/2019 11/13/2019 12/09/2019
12/12/2019 12/20/2019 12/20/2019

# 9 Summons, # 10 Summons, # 11 Summons)(mm) (Entered: 11/13/2019)

6 Correction of Docket Entry by Clerk re 3 MOTION to Certify Class. 1. Filing attorney selected incorrect submission date. Correct date is 11/27/2019 before Judge Guidry. Clerk took corrective action. 2. Document does not contain Section and Magistrate Judge. All future pleadings must reflect Section T and Magistrate (4).** (mm) (Entered: 11/13/2019)

7 ORDER OF RECUSAL. Judge Greg Gerard Guidry recused. Case reassigned to Judge Carl Barbier. Signed by Judge Greg Gerard Guidry on 11/13/19.(ko) (Entered: 11/13/2019)

8 EXPARTE/CONSENT MOTION for Extension of Time to Answer re 1 Complaint, by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Karen K. Herman, Arthur L Hunter, Keva Landrum-Johnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich. (Attachments: # 1 Proposed Order)Attorney Dennis J. Phayer added to party Paul A Bonin(pty:dft), Attorney Dennis J. Phayer added to party Camille Buras(pty:dft), Attorney Dennis J. Phayer added to party Darryl A. Derbigny(pty:dft), Attorney Dennis J. Phayer added to party Tracey Flemings-Davillier(pty:dft), Attorney Dennis J. Phayer added to party Karen K. Herman(pty:dft), Attorney Dennis J. Phayer added to party Arthur L Hunter(pty:dft), Attorney Dennis J. Phayer added to party Keva Landrum-Johnson(pty:dft), Attorney Dennis J. Phayer added to party Robin D. Pittman(pty:dft), Attorney Dennis J. Phayer added to party Dennis Waldron(pty:dft), Attorney Dennis J. Phayer added to party Laurie A White(pty:dft), Attorney Dennis J. Phayer added to party Benedict Willard(pty:dft), Attorney Dennis J. Phayer added to party Franz L Zibilich(pty:dft).(Phayer, Dennis) (Entered: 12/09/2019)

9 ORDER granting 8 Motion for Extension of Time to Answer as to all defendants. Defendants shall have until December 31, 2019 to file responsive pleadings to the Complaint. Signed by Judge Carl Barbier on 12/10/2019. (cg) (Entered: 12/12/2019)

First AMENDED COMPLAINT against All Defendants filed by

10

Miles Moran, Gerard Taylor.Attorney Eric A. Foley added to party

Gerard Taylor(pty:pla).(Foley, Eric) Modified on 12/23/2019 (cg).

Modified on 12/23/2019 (cg). (Entered: 12/20/2019)

11 EXPARTE/CONSENT MOTION to join Plaintiff Miles Moran's Motion to Certify a Class Action 3 by Gerard Taylor. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Foley, Eric) (Entered: 12/20/2019)

01/14/2020 01/28/2020 02/17/2020 02/18/2020 03/09/2020 03/13/2020 03/16/2020

12 ANSWER to 10 Amended Complaint with Jury Demand by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey FlemingsDavillier, Karen K. Herman, Arthur L Hunter, Keva LandrumJohnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich.(Phayer, Dennis) (Entered: 01/14/2020)
13 ORDER TRANSFERRING CASE. The Court has been informed that the above-captioned case is related to Civil Action No. 17-6197, Caliste v. Cantrell, previously allotted to Section "L"(5) of this Court. Accordingly, IT IS HEREBY ORDERED that the above-captioned matter be TRANSFERRED to Section "L"(5) for further proceedings. Signed by Judge Carl Barbier on 1/28/2020.(cg) (Entered: 01/28/2020)
14 EXPARTE/CONSENT MOTION to Set Rule 16(b) Scheduling Conference by Miles Moran, Gerard Taylor. (Attachments: # 1 Proposed Order)(Foley, Eric) Modified text/referral on 2/18/2020 (jeg). (Entered: 02/17/2020)
15 Correction of Docket Entry by Clerk re 14 MOTION to Set Rule 16(b) Scheduling Conference. **Filing attorney incorrectly changed 'N' to 'Y' at the question 'Is this motion to be decided by the Magistrate Judge Y/N?'. This motion will be decided by the District Judge. Clerk took corrective action. No further action necessary.** (jeg) (Entered: 02/18/2020)
16 ORDER: Considering the pending motions in the above-captioned matter, IT IS ORDERED that the parties participate in a telephone status conference on 3/16/2020 01:30 PM before Judge Eldon E. Fallon. Signed by Judge Eldon E. Fallon on 03/06/2020.(ko) (Entered: 03/09/2020)
17 MOTION to Dismiss for Lack of Jurisdiction by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Karen K. Herman, Arthur L Hunter, Keva Landrum-Johnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich. Motion(s) will be submitted on 4/1/2020. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Notice of Submission)(Duffourc, Mindy) (Entered: 03/13/2020)
18 Minute Order. Proceedings held before Judge Eldon E. Fallon: A Status Conference was held on 3/16/2020. The parties discussed the status of the case and procedural plans to move it forward. ORDERED that the 14 MOTION to Set Rule 16(b) Scheduling Conference is GRANTED, and that the parties participate in a scheduling conference on Tuesday, March 31, 2020 at 10 a.m. (jeg) (Entered: 03/16/2020)

03/17/2020
03/24/2020 03/25/2020 03/26/2020 03/30/2020
03/30/2020 03/30/2020 03/31/2020 03/31/2020

19 PRELIMINARY CONFERENCE NOTICE: A PRELIMINARY CONFERENCE will be held BY TELEPHONE on TUESDAY, MARCH 31, 2020, at 10:00AM, for the purpose of scheduling a pretrial conference and trial on the merits and for a discussion of the status and discovery cut-off dates. The Court will initiate the call. By the Clerk.(jeg) (Entered: 03/17/2020)
20 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 17 MOTION to Dismiss for Lack of Jurisdiction . (Foley, Eric) Modified text/event on 3/25/2020 (jeg). (Entered: 03/24/2020)
21 Correction of Docket Entry by Clerk re 20 Response to Motion. **Filing attorney selected incorrect event. Correct event is RESPONSE/MEMORANDUM in Opposition. Clerk took corrective action by changing the event. No further action necessary.** (jeg) (Entered: 03/25/2020)
22 ORDER granting 11 Motion for Leave to Join Plaintiff Miles Moran's Motion to Certify a Class Action. Signed by Judge Eldon E. Fallon on 03/25/2020. (ko) (Entered: 03/26/2020)
23 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Support of Partial Motion to Dismiss 12(b)(1) by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey FlemingsDavillier, Karen K. Herman, Arthur L Hunter, Keva LandrumJohnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Proposed Pleading)(Phayer, Dennis) (Entered: 03/30/2020)
24 ORDER - IT IS ORDERED that Defendant file an opposition to the 3 MOTION to Certify Class filed by Miles Moran, if any, by Friday, April 10, 2020. Signed by Judge Eldon E. Fallon on 3/30/20.(dno) (Entered: 03/30/2020)
25 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice Alec Karakatsanis (Filing fee $ 100 receipt number ALAEDC-8239864) by Miles Moran, Gerard Taylor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Proposed Order)(Foley, Eric) Modified text on 3/31/2020 (jeg). (Entered: 03/30/2020)
26 ORDER GRANTING 25 Motion to Appear Pro Hac Vice as to Alec George Karakatsanis. Signed by Judge Eldon E. Fallon on 3/31/2020. (Attachments: # 1 PHV Notice) (jeg) (Entered: 03/31/2020)
27 SCHEDULING ORDER: Final Pretrial Conference set for 10/20/2020 01:30 PM before Judge Eldon E. Fallon. Status Conference set for 5/7/2020 01:30 PM before Judge Eldon E. Fallon. Jury Trial set for 11/2/2020 08:30 AM before Judge Eldon E. Fallon. All discovery must be completed by 9/21/2020. Signed by Judge

03/31/2020
04/01/2020 04/01/2020 04/06/2020 04/07/2020 04/09/2020
04/13/2020 04/15/2020 04/16/2020

Eldon E. Fallon on 3/31/20. (Attachments: # 1 Pretrial Notice Form)(dno) (Entered: 03/31/2020)
28 MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey FlemingsDavillier, Karen K. Herman, Arthur L Hunter, Keva LandrumJohnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich. Motion(s) will be submitted on 4/15/2020. (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Exhibit, # 4 Notice of Submission, # 5 Proposed Order)(Duffourc, Mindy) (Entered: 03/31/2020)
29 ORDER GRANTING 23 Motion for Leave to File Reply. Signed by Judge Eldon E. Fallon on 3/31/2020. (jeg) (Entered: 04/01/2020)
30 REPLY to Response to Motion filed by All Defendants re 17 MOTION to Dismiss for Lack of Jurisdiction . (jeg) (Entered: 04/01/2020)
31 EXPARTE/CONSENT Consent MOTION for Extension of Time to File Opposition Memorandum to Defendants' Second Motion to Dismiss by Miles Moran, Gerard Taylor. (Attachments: # 1 Proposed Order)(Foley, Eric) (Entered: 04/06/2020)
32 ORDER GRANTING 31 Motion for Extension of Time to File Opposition Memorandum to Defendants' Second Motion to Dismiss. Plaintiffs shall have leave to file a memorandum in opposition to Defendants motion on or before April 13, 2020. Signed by Judge Eldon E. Fallon on 4/7/2020. (jeg) (Entered: 04/07/2020)
33 RESPONSE/MEMORANDUM in Opposition filed by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Karen K. Herman, Arthur L Hunter, Keva Landrum-Johnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich re 3 MOTION to Certify Class . (Attachments: # 1 Exhibit, # 2 Exhibit)(Duffourc, Mindy) (Entered: 04/09/2020)
34 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 28 MOTION to Dismiss for Lack of Jurisdiction 12(b)(1) . (Attachments: # 1 Exhibit A)(Foley, Eric) (Entered: 04/13/2020)
35 MOTION for Leave to File Reply to rec doc 28 filed by All Defendants. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading, # 3 Proposed Order)(Duffourc, Mindy) Modified text/event on 4/16/2020 (jeg). (Entered: 04/15/2020)
36 Correction of Docket Entry by Clerk re 35 Reply to Response to Motion. **Filing attorney selected incorrect event. Correct event is MOTION for Leave to File Document. Clerk took corrective action by changing the event. No further action necessary.** (jeg) (Entered: 04/16/2020)

04/21/2020 04/21/2020 04/29/2020
05/06/2020 05/07/2020
05/13/2020 05/27/2020

37 ORDER GRANTING 35 Motion for Leave to File Reply. Signed by Judge Eldon E. Fallon on 4/16/2020. (jeg) (Entered: 04/21/2020)
38 REPLY to Response to Motion filed by All Defendants re 28 MOTION to Dismiss for Lack of Jurisdiction 12(b)(1). (jeg) (Entered: 04/21/2020)
39 ORDER re 3 MOTION to Certify Class , 17 MOTION to Dismiss for Lack of Jurisdiction , 28 MOTION to Dismiss for Lack of Jurisdiction 12(b)(1). IT IS ORDERED that oral argument on the aforementioned motions shall be held on Wednesday, May 27, 2020 from the Courtroom of the Honorable Eldon E. Fallon. Due to ongoing concerns regarding the global outbreak of COVID-19, the Court will discuss the logistics of the oral argument, including the timing thereof, at the telephone status conference scheduled for Thursday, May 7, 2020 at 1:30 p.m. The parties are reminded the use the following dial in-information to participate in the status conference and are expected to be on the line at least five minutes before the scheduled start time. Dial In: (877) 336 1839 Access Code: 4227405. Signed by Judge Eldon E. Fallon on 4/29/2020.(jeg) (Entered: 04/29/2020)
40 **DEFICIENT** MOTION to Consolidate Cases by Miles Moran, Gerard Taylor. Motion(s) will be submitted on 6/10/2020. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Foley, Eric) Modified on 5/7/2020 (jeg). (Entered: 05/06/2020)
41 Minute Entry for proceedings held before Judge Eldon E. Fallon: A Telephone Status Conference was held on 5/7/2020. The parties discussed the status of the case and procedural plans to move it forward. The Court also discussed the logistics of oral argument, scheduled for Wednesday, May 27, 2020. Oral argument will be conducted by telephone, and will begin at 11:00 a.m. The Court will circulate dial-in information prior a few days before oral argument. (jeg) (Entered: 05/08/2020)
42 MOTION to Consolidate Cases by Miles Moran, Gerard Taylor. Motion(s) will be submitted on 6/10/2020. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Foley, Eric) (Entered: 05/13/2020)
43 Minute Entry for proceedings held before Judge Eldon E. Fallon: A Motion Hearing was held on 5/27/2020 re: 3 MOTION to Certify Class- After argument Motion was taken under submission, 17 MOTION to Dismiss for Lack of Jurisdiction- After argument Motion was taken under submission 28 MOTION to Dismiss for Lack of Jurisdiction- After argument Motion was taken

06/02/2020 06/05/2020 06/10/2020 06/11/2020
06/11/2020 06/11/2020

under submission(Court Reporter Cathy Pepper.) (jeg) (Entered: 05/28/2020)

44 RESPONSE/MEMORANDUM in Opposition filed by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Karen K. Herman, Arthur L Hunter, Keva Landrum-Johnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich re 42 MOTION to Consolidate Cases . (Duffourc, Mindy) (Entered: 06/02/2020)

ORDER AND REASONS GRANTING 42 Motion to Consolidate

45

Cases. IT IS FURTHER ORDERED that all pleadings hereinafter

filed in this consolidated proceeding shall bear the caption of the lead

consolidated case (No. 19-13553) as set forth in document. Signed by

Judge Eldon E. Fallon on 6/4/2020. (jeg) (Entered: 06/05/2020)

46 EXPARTE/CONSENT MOTION to Schedule a Status Conference by Ernest Cloud, Larry A Matthews, Jr, Miles Moran, Gerard Taylor. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Reference: 19-cv13553, 20-cv-1275)(Foley, Eric) (Entered: 06/10/2020)

47 Correction of Docket Entry by Clerk re 46 MOTION to Schedule a Status Conference. **In Consolidated Matters, the caption must list all case(s) that are consolidated together and include a separate reference to list the case(s) to which the pleading pertains and that same case number(s) must be referenced in the docket entry. If the caption does not specifically state the case(s) to which the pleading pertains, then all cases will be listed. Please follow this requirement for all future filings.** (Reference: All Cases)(jeg) (Entered: 06/11/2020)

48 MOTION to Certify Class by Ernest Cloud, Larry A Matthews, Jr. Motion(s) will be submitted on 5/13/2020. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Notice of Submission)(Reference: 20-1275)(jeg) (Originally filed as rec doc 3 in case 20-1275) (Entered: 06/11/2020)

49 ANSWER to Complaint with Jury Demand by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Hunter Harris, IV, Karen K. Herman, Keva M. Landrum, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich.(Reference: 20-1275)Attorney Dennis J. Phayer added to party Paul A Bonin(pty:condft), Attorney Dennis J. Phayer added to party Camille Buras(pty:condft), Attorney Dennis J. Phayer added to party Darryl A. Derbigny(pty:condft), Attorney Dennis J. Phayer added to party Tracey Flemings-Davillier(pty:condft), Attorney Dennis J. Phayer added to party Hunter Harris, IV(pty:condft), Attorney Dennis J. Phayer added to party Karen K. Herman(pty:condft), Attorney Dennis J. Phayer added to party Keva

06/11/2020 06/17/2020 07/06/2020

M. Landrum(pty:condft), Attorney Dennis J. Phayer added to party Robin D. Pittman(pty:condft), Attorney Dennis J. Phayer added to party Dennis Waldron(pty:condft), Attorney Dennis J. Phayer added to party Laurie A White(pty:condft), Attorney Dennis J. Phayer added to party Benedict Willard(pty:condft), Attorney Dennis J. Phayer added to party Franz L Zibilich(pty:condft).(Phayer, Dennis) (Entered: 06/11/2020)

50 ORDER GRANTING 46 MOTION to Schedule a Status Conference,. Signed by Judge Eldon E. Fallon on 6/11/2020. and the parties shall convene for a telephonic status conference on Wednesday, June 17, 2020 at 9:00 a.m. The parties are instructed to use the following information to participate: Dial-in: (877) 336 1839 Access Code: 4227405(Reference: All Cases)(jeg) (Entered: 06/11/2020)

Minute Entry for proceedings held before Judge Eldon E. Fallon: A

51

Telephone Early Status Conference was held on 6/17/2020. The

parties discussed the effect of a recent legislative change on the status

of the case. Plaintiffs represented that they anticipated dismissing the

claims affected by this change without prejudice. Defendants

represented that they would seek dismissal with prejudice. The parties

were instructed to work together to resolve the matter with respect to

Count II. (Reference: All Cases)(jeg) (Entered: 06/17/2020)

RESPONSE/MEMORANDUM in Opposition filed by Paul A Bonin,

52

Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Karen

K. Herman, Arthur L Hunter, Keva Landrum-Johnson, Robin D.

Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L

Zibilich re 48 MOTION to Certify Class . (Attachments: # 1

Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4

07/06/2020

Exhibit D)(Reference: All Cases)(Duffourc, Mindy) Modified text/reference on 7/7/2020 (jeg). (Entered: 07/06/2020)
53 MOTION to Dismiss for Lack of Jurisdiction by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Karen K. Herman, Arthur L Hunter, Keva Landrum-Johnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich. Motion(s) will be submitted on 7/22/2020. (Attachments: # 1

Memorandum in Support, # 2 Proposed Order, # 3

Notice of Submission, # 4 Exhibit A, # 5 Exhibit B,

# 6 Exhibit C, # 7 Exhibit D)(Reference: All Cases)(Duffourc, Mindy) Modified text/reference on 7/7/2020 (jeg). (Entered: 07/06/2020)

07/07/2020

54 Correction of Docket Entry by Clerk re 53 MOTION to Dismiss for

07/09/2020 07/09/2020 07/20/2020 07/21/2020
07/28/2020 08/03/2020
08/04/2020

Lack of Jurisdiction , 52 Response/Memorandum in Opposition to Motion. **In Consolidated Matters, the caption must list all case(s) that are consolidated together and include a separate reference to list the case(s) to which the pleading pertains and that same case number(s) must be referenced in the docket entry. If the caption does not specifically state the case(s) to which the pleading pertains, then all cases will be listed. Please follow this requirement for all future filings.** (Reference: All Cases)(jeg) (Entered: 07/07/2020)

STIPULATION of Dismissal Without Prejudice by Miles Moran,

55

Gerard Taylor (Attachments: # 1 Proposed Order)(Reference: 19-cv-

13553)(Foley, Eric) (Entered: 07/09/2020)

56 STIPULATION of Dismissal Without Prejudice by Ernest Cloud, Larry A Matthews, Jr (Attachments: # 1 Proposed Order)(Reference: 20-cv-01275)(Foley, Eric) (Entered: 07/09/2020)

57 EXPARTE/CONSENT MOTION to Continue Submission Dates of Plaintiffs' Motion to Certify a Class Action 48 and Defendants' Motion to Dismiss 53 by Ernest Cloud, Larry A Matthews, Jr. (Attachments: # 1 Proposed Order)(Reference: 20-cv-01275)(Foley, Eric) (Entered: 07/20/2020)

58 ORDER GRANTING 57 MOTION to Continue Submission Dates of Plaintiffs' Motion to Certify a Class Action 48 and Defendants' Motion to Dismiss 53 . ORDERED that the submission dates of Plaintiffs Motion to Certify a Class Action, R. Doc. 48, and Defendants' FRCP 12(b)(1) Motion to Dismiss, R. Doc. 53, are continued to August 5, 2020. Signed by Judge Eldon E. Fallon on 7/21/2020.(Reference: 20-1975)(jeg) (Entered: 07/21/2020)

RESPONSE/MEMORANDUM in Opposition filed by Ernest Cloud,

59

Larry A Matthews, Jr re 53 MOTION to Dismiss for Lack of

Jurisdiction . (Reference: 20-cv-01275)(Foley, Eric) (Entered:

07/28/2020)

60 EXPARTE/CONSENT MOTION for Leave to File Reply Memo in Support of FRCP 12(B)(1) Motion to Dismiss by Paul A Bonin, Camille Buras, Darryl A. Derbigny, Tracey Flemings-Davillier, Hunter Harris, IV, Karen K. Herman, Arthur L Hunter, Keva Landrum-Johnson, Robin D. Pittman, Dennis Waldron, Laurie A White, Benedict Willard, Franz L Zibilich. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Reference: 20-cv01275)(Duffourc, Mindy) (Entered: 08/03/2020)

61 ORDER granting 60 Motion for Leave to File Reply. Signed by Judge Eldon E. Fallon on 08/04/2020. (Reference: 20-1275)(ko) (Entered: 08/04/2020)

08/04/2020
08/05/2020 08/06/2020 08/06/2020

REPLY to Response to Motion filed by Paul A Bonin, Camille Buras,

62

Darryl A. Derbigny, Tracey Flemings-Davillier, Hunter Harris, IV,

Karen K. Herman, Robin D. Pittman, Dennis Waldron, Laurie A

White, Benedict Willard, Franz L Zibilich re 53 MOTION to Dismiss

for Lack of Jurisdiction . (Reference: 20-1275)(ko) (Entered:

08/04/2020)

63 EXPARTE/CONSENT MOTION for Leave to File Reply in Support of Motion to Certify a Class Action 48 by Ernest Cloud, Larry A Matthews, Jr. (Attachments: # 1 Proposed Pleading Reply brief, # 2 Proposed Order)(Reference: 20-cv-01275)(Foley, Eric) (Entered: 08/05/2020)

64 ORDER GRANTING 63 Motion for Leave to File Reply. Signed by Judge Eldon E. Fallon on 8/6/2020. (Reference: 20-1275)(jeg) (Entered: 08/06/2020)

65 REPLY to Response to Motion filed by Ernest Cloud, Larry A Matthews, Jr re 48 MOTION to Certify Class. (Reference: 201275)(jeg) (Entered: 08/06/2020)

 
 Case 2:19-cv-13553-EEF-MBN Document 10 Filed 12/20/19 Page 1 of 22

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

MILES MORAN and GERARD TAYLOR, for themselves and all others similarly situated,
Plaintiffs,
v.
KEVA LANDRUM-JOHNSON, Chief Judge of Orleans Parish Criminal District Court; PAUL A. BONIN, CAMILLE BURAS, DARRYL A. DERBIGNY, TRACEY FLEMINGS-DAVILLIER, KAREN K. HERMAN, ARTHUR L. HUNTER, ROBIN D. PITTMAN, DENNIS WALDRON, LAURIE A. WHITE, BENEDICT WILLARD, and FRANZ L. ZIBILICH, in their official capacity as Judges of the Orleans Parish Criminal District Court,
Defendants.

Case No. 19-cv-13553-CJB-KWR (Class Action)

AMENDED CLASS ACTION COMPLAINT 1. Defendants, the Judges of the Orleans Parish Criminal District Court, are responsible for setting conditions of release for people who are arrested and charged with certain crimes in Orleans Parish. Defendants consistently and unlawfully impose secured financial conditions of release in an amount that individuals cannot afford, without any inquiry into or findings concerning their ability to pay or alternatives to incarceration. As a result, the moneybased orders of post-arrest release that they impose constitute de facto orders of pretrial detention for those unable to pay — orders that are issued without the legal and factual findings and

Case 2:19-cv-13553-EEF-MBN Document 10 Filed 12/20/19 Page 2 of 22
procedures required for a valid order of pretrial detention. See Caliste v. Cantrell, 329 F. Supp. 3d 296, 308–15 (E.D. La. 2018).
2. Defendants have an institutional financial conflict of interest in every secured money bond that they impose because they act both as supposedly neutral judicial officers and as executives responsible for managing the funds generated by each such bail order that they set. Louisiana law provides that if (and only if) an arrestee uses a commercial surety to secure pretrial release, the judges of the Orleans Parish Criminal District Court (“OPCDC”) receive 0.8% of the amount of that bond into the court’s Judicial Expense Fund,1 which Defendant Judges control.
3. These policies and practices result in imminent and ongoing violations of fundamental rights. Plaintiff, on behalf of himself and a class of similarly situated arrestees, seeks a declaration that Defendants’ conduct violates the Fourteenth Amendment to the United States Constitution.
4. The Complaint in this case was filed on Nov. 12, 2019. This Amended Complaint has been filed prior to Defendants’ filing of responsive pleadings.2
Jurisdiction and Venue 5. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. §§ 2201– 02, and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 6. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
1 The Judicial Expense Fund is also referred to by the Orleans Parish Criminal District Court as the “General Fund.” 2 This Amended Complaint is materially identical to the original complaint, to which it relates back, except that it fixes an error in the percentage of the bail fee required by law and adds a new named Plaintiff, Mr. Taylor, to the claims of the original Plaintiff, Mr. Moran.
2

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Parties 7. Plaintiff Miles B. Moran is a pretrial detainee in the custody of Orleans Parish Sheriff Marlin Gusman. He is currently detained at the Orleans Justice Center, 2800 Perdido Street, New Orleans, LA 70119. The Orleans Parish Magistrate has conditioned Mr. Moran’s release on payment of a secured money bail that Mr. Moran cannot afford. Pursuant to standard court assignment practices applicable to all class members, if the District Attorney accepts the charges against Mr. Moran, his case will be allotted to an as yet unknown section of the court, where one of the Defendant Judges will have the authority to determine his conditions of release. The cases of class members are randomly assigned to court sections over which each of the Defendant Judges preside.3 8. Plaintiff Gerard Taylor is a pretrial detainee in the custody of Orleans Parish Sheriff Marlin Gusman. He is currently detained at the Orleans Justice Center, 2800 Perdido Street, New Orleans, LA 70119. The Orleans Parish Commissioner Thibodeaux and Magistrate Cantrell conditioned Mr. Taylor’s release on payment of a secured money bail that Mr. Taylor cannot afford. Pursuant to standard court assignment practices applicable to all class members, Mr. Taylor’s case will be allotted to an as-yet-unknown section of the court, where one of the Defendant Judges will have the authority to determine his conditions of release. The cases of class members are randomly assigned to court sections over which each of the Defendant Judges preside. 9. Defendant Keva Landrum-Johnson is the Chief Judge of the OPCDC and presides over Section E. Judge Landrum-Johnson has authority to impose financial conditions of release
3 After Mr. Moran filed his first Complaint on Nov. 12, 2019, the District Attorney’s office refused charges against him in the OPCDC on Nov. 19, 2019. Mr. Moran was released from custody the next day. As it is Mr. Moran’s intent for this Amended Complaint to relate back to his first-filed Complaint, he has not altered the allegations of this paragraph or of paragraphs 40–42.
3

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in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
10. Defendant Paul A. Bonin is a Judge of the OPCDC and presides over Section D. Judge Bonin has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
11. Defendant Camille Buras is a Judge of the OPCDC and presides over Section H. Judge Buras has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
12. Defendant Darryl A. Derbigny is a Judge of the OPCDC and presides over Section J. Judge Derbigny has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
13. Defendant Tracey Flemings-Davillier is a Judge of the OPCDC and presides over Section B. Judge Flemings-Davillier has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
14. Defendant Karen K. Herman is a Judge of the OPCDC and presides over Section I. Judge Herman has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
4

Case 2:19-cv-13553-EEF-MBN Document 10 Filed 12/20/19 Page 5 of 22
15. Defendant Arthur L. Hunter is a Judge of the OPCDC and presides over Section K. Judge Hunter has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
16. Defendant Robin D. Pittman is a Judge of the OPCDC and presides over Section F. Judge Pittman has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
17. Defendant Laurie A. White is a Judge of the OPCDC and presides over Section A. Judge White has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
18. Defendant Benedict Willard is a Judge of the OPCDC and presides over Section C. Judge Willard has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
19. Defendant Dennis Waldron is an ad hoc Judge of the OPCDC and presides over Section G, whose elected judicial officer, Byron Williams, has been disqualified from presiding over cases. Judge Waldron has authority to impose financial conditions of release in cases that are allotted to his section. He relies upon the Judicial Expense Fund’s income to fund the operations of the court.
20. Defendant Franz L. Zibilich is a Judge of the OPCDC and presides over Section L. Judge Zibilich has authority to impose financial conditions of release in cases that are allotted
5

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to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
21. The Defendants are each sued in their official capacities as the judges presiding over the sections to which class members’ cases are assigned and who have the authority and obligation under state law to determine conditions of pretrial release.
Factual and Procedural Summary A. Defendants’ Practice of Imposing Secured Financial Conditions of Release Without
Conducting Any Inquiry into or Making Findings Concerning Ability to Pay or Non-financial Alternatives. 22. In Orleans Parish, persons arrested on suspicion of committing a state misdemeanor or felony are brought before either the Magistrate or the Commissioners of the OPCDC for a First Appearance Hearing, at which conditions of release are determined. 23. If the arrestee remains in custody after the First Appearance Hearing, because they were not released on recognizance and could not afford to pay a financial condition of release, then the District Attorney has between 45 to 120 days, depending on whether the charge is a misdemeanor or felony and its severity, in which to accept charges. 24. If the arrestee has been released from custody after the First Appearance Hearing, the District Attorney has between 90 to 150 days, depending on whether the charge is a misdemeanor or felony, in which to accept charges. 25. Charges are accepted by filing of a bill of information or an indictment. 26. According to reporting by the Metropolitan Crime Commission, the District Attorney accepted 81% of felony charges in 2015.
6

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27. Once the District Attorney files a bill of information or indictment, the case is randomly allotted to one of the Defendant Judges’ dockets, by operation of La. Rules for Criminal Proceedings in District Courts and its Orleans Parish appendix.
28. Defendant Judges then preside over the arraignment of criminal defendants whose cases have been allotted to them.
29. At the arraignment, Defendant Judges may again consider conditions of release. Often, Defendant Judges either maintain or increase a financial condition of release that had been set by the Magistrate or Commissioners.
30. Defendant Judges may also impose a financial condition of release where none was previously imposed.
31. The Vera Institute of Justice estimates that in the period between August to December 2018, a daily average of 448 prisoners at the Orleans Justice Center were being held on bonds of $100,000 or less. These 448 prisoners had no probation or parole holds and no outof-state warrants; i.e, the only thing keeping them detained was their inability to pay a money bond.
32. As a matter of practice, Defendant Judges do not inquire into an arrestee’s ability to pay a financial condition of release before imposing one. They do not make findings on the record as to an arrestee’s ability to pay.
33. As a matter of practice, Defendant Judges do not consider nonfinancial alternative conditions of release. They do not make findings on the record as to whether such nonfinancial alternatives would satisfy the government’s interest in the arrestee’s return for future proceedings or in the community’s safety.
7

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34. On information and belief, some Defendant Judges use the threat of increased financial conditions of release to incentivize guilty pleas at arraignment. An individual previously released pretrial may face the prospect of being detained on an increased bail or instead pleading to a crime for which he will face only a non-custodial sentence.
35. Plaintiff Miles Moran was arrested on Oct. 1, 2019, on a felony charge of unauthorized entry of a business, La. R.S. § 14:62.4, and a misdemeanor charge of theft under $500, La. R.S. § 14:67(B)(3), arising from allegations that he had shoplifted $21.28 of drinks and potato chips.
36. He appeared before Magistrate Harry Cantrell on the following day, Oct. 2, 2019, for his first appearance hearing. Magistrate Cantrell ordered that Mr. Moran be released on a $1,250 secured money bond. Magistrate Cantrell remanded Mr. Moran to the Orleans Parish Sheriff’s custody because he could not pay that amount.
37. Mr. Moran’s counsel at the Orleans Public Defenders moved for a bond reduction and argued the motion on Oct. 15, 2019. Mr. Moran’s counsel argued that he was indigent, had no stable address, and “would be unable to afford any amount of bond.” His counsel further represented that she had secured a bed for Mr. Moran at Odyssey House, a residential addiction treatment program. Mr. Moran’s counsel requested that he be released on recognizance.
38. The Assistant District Attorney provided no argument for or evidence concerning why Mr. Moran’s detention was necessary. He stated only, “I see one conviction from ’17 from Mississippi, no failures to appear. I don’t know what his current address situation is now.”
39. Magistrate Cantrell denied, without reason, Moran’s request for release on recognizance and instead lowered his secured money bail from $1,250 to $300.4
4 Mr. Moran’s counsel at the Orleans Public Defenders sought review of Magistrate Cantrell’s bond-reduction decision by filing a Petition for Supervisory Writs to the Louisiana Fourth Circuit on Oct. 29, 2019. That writ
8

Case 2:19-cv-13553-EEF-MBN Document 10 Filed 12/20/19 Page 9 of 22
40. Mr. Moran has not been able to pay this $300 bail and remains jailed as of the filing of this Complaint.
41. The District Attorney’s office has not yet filed a bill of information nor sought an indictment against Mr. Moran, and thus no arraignment is scheduled.
42. Upon filing of a bill or indictment, Mr. Moran, like any class member in his position, will find himself before any one of the twelve Defendant Judges for arraignment and consideration of conditions of release.5
43. Plaintiff Gerard Taylor was arrested on Oct. 24, 2019, on felony charges of theft of a vehicle La. R.S. § 14:67.26(C)(3).
44. Mr. Taylor appeared before Commissioner Albert Thibodeaux on the following day, Oct. 25, 2019, for his first appearance hearing. The State did not argue that Mr. Taylor must be detained prior to trial, and Commissioner Thibodeaux did not make the substantive findings or provide the procedural safeguards that would be required for a constitutional order of pretrial detention. Commissioner Thibodeaux ordered that Mr. Taylor be released on a $2,000 secured money bond. Commissioner Thibodeaux remanded Mr. Taylor to the custody of the Orleans Parish Sheriff because he could not pay that amount.
45. Mr. Taylor’s counsel at the Orleans Public Defenders moved for a bond reduction, which Magistrate Cantrell heard and denied the motion on Nov. 18, 2019. Mr. Taylor then
application was denied on the same day. On October 31, 2019, Mr. Moran sought review in by the Louisiana Supreme Court. The Supreme Court denied Mr. Moran’s petition on November 1, 2019. Moran filed an emergency petition for writ of habeas corpus, challenging his detention, in this Court on Nov. 7, 2019. Moran v. Gusman, No. 2:19-cv-13503 (E.D. La. Nov. 7, 2019), and seeking release from custody unless or until a conflict-free judicial officer conducts bail proceedings that comply with the U.S. Constitution. 5 As discussed in footnote 3, the allegations in paragraphs 40–42 have been retained from the original complaint, although Mr. Moran’s circumstances have since changed.
9

Case 2:19-cv-13553-EEF-MBN Document 10 Filed 12/20/19 Page 10 of 22
sought a writ in the Louisiana Fourth Circuit, which was denied without reason. A subsequent writ to the Louisiana Supreme Court has also been denied.
46. Mr. Taylor has not been able to pay the $2,000 bond and remains jailed away from his home and his family as of the filing of this Amended Complaint, nearly two months later.
47. The District Attorney’s office filed a bill of information on Dec. 20, 2019. The case has not yet been allotted to a section of the OPCDC, and thus no arraignment is scheduled.
B. Defendants’ Institutional Financial Conflict of Interest When Determining Conditions of Release. 48. The Defendant Judges depend on fees assessed on for-profit surety bonds to fund
the operations of their court. 49. In Orleans Parish, the Sheriff collects a $2.00 fee on every $100.00 of liability
underwritten by a commercial surety (bond company). La. R.S. §§ 22:822(A)(2); 22:1443(B)(2). 50. The $2.00 fee collected on every $100.00 of liability underwritten by a
commercial surety is divided as follows: 1. 40% to Orleans Parish Criminal District Court Judicial Expense Fund; 2. 20% to Orleans Parish Sheriff’s Office; 3. 20% to Orleans Parish District Attorney; 4. 20% to Orleans Parish Office of the Indigent Defender.
La. R.S. §§ 22:822(B)(3), 13:1381.5. 51. No such fee is levied against arrestees who utilize secured personal sureties, post
a cash bail, or are released on recognizance or other non-financial conditions of release. 52. The Defendant Judges deposit the 0.8% fee they receive from commercial surety
bonds into the Judicial Expense Fund, from which they pay for the salaries and benefits of their
10

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staff, travel for judicial conferences, office supplies, phone service, building maintenance, legal research, and various other day-to-day expenses.6
53. In 2013, an accountant for the OPCDC addressed the New Orleans City Council, stating that the revenue from the bond fee was “critical” to the court’s ability to meets its monthly payroll expenses.
54. In recent years, this fee on commercial surety bonds accounted for 20–25% of the Judicial Expense Fund, or about one million dollars. Thus, a significant portion of the court’s revenue depends upon criminal defendants posting bond through commercial sureties.
55. Defendant Judges have represented to undersigned counsel that they continue collecting this money but place it in “escrow.” The judges can choose to access this money at any time, and there is no provision under Louisiana law for this funding to be placed into escrow or for it to be used for any purpose other than its statutory purpose to fund the court’s operations.
56. In response to undersigned counsel’s public records request, Orleans Parish Criminal District Court Administrator Robert Kazik informed undersigned counsel that in the year between this Court’s ruling and the Fifth Circuit’s affirmance, the OPCDC had collected $540,407.12 of the conflicted bond funds into “Criminal District Court Criminal Justice ‘Escrow Account.’”
57. In 2015, 97% of those defendants in Criminal District Court who were assessed a financial bail obtained their freedom through a commercial surety. Only 3% paid their full bail in cash.
6 The Defendant Judges’ control of the funds collected through the bail bond fee is demonstrated by recent history. Prior to 2012, the judges of the Orleans Criminal District Court used the money collected from the bail bond fee to pay for their own personal insurance benefits, including benefits for their spouses. This practice of using the general fund to pay supplemental benefits ceased only after public disclosure by the Louisiana Legislative Auditor. No structural control or mechanism prevents the resumption of this practice, or one like it, in the future.
11

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58. Spending from the Judicial Expense Fund is controlled by Defendant Judges en banc.
59. The deposit of the fee on commercial surety bonds into the Judicial Expense Fund for Orleans Parish Criminal District Court creates a conflict of interest for Defendant Judges.
60. Defendants’ chambers directly benefit from the collection of the fee on bonds. The infrastructure of their court—from staff salaries to office supplies—depends upon the continued generation of money from for-profit commercial surety fees, which are entirely dependent on their judicial decisions. As executives who manage these expenditures, and as judges in charge of ensuring that the court continues to operate, Defendant Judges’ dual executive and judicial roles destroy the judicial neutrality that is a vital component of the American legal system.
61. Defendants’ policy and practice of refusing to consider ability to pay, refusing to consider non-financial alternatives, imposing de facto orders of detention without the process and substantive legal standards required, and institutional financial conflict of interest violate the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Constitution.
62. Defendants do not conduct any proceedings concerning whether a person has the ability to pay the amount of money that they require for bail. Nor do they make any inquiry into or findings concerning whether there is any other non-financial condition or combination of conditions that could reasonably ensure an arrestee’s appearance or the safety of the community. Nor do they conduct any of the proceedings required for a valid order of pretrial detention, including an adversarial hearing at which findings are made pursuant to clearly defined legal standards required by federal law concerning whether alternatives to detention exist that could reasonably mitigate any person’s purported danger to the community or risk of flight.
12

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63. Under Defendants’ money-based practices, those arrestees wealthy enough to pay are released almost immediately after Defendants set their bail. Some poorer arrestees eventually make arrangements with private bail bond companies, after spending days or weeks in jail. And many others, who are too poor to come up with enough money, are left to languish in jail until the resolution of their case.
C. Defendants’ Bail Practices as an Ineffective Means of Ensuring Public Safety or Criminal Defendants’ Appearance at Trial. 64. Empirical evidence shows that there is no relationship between requiring secured
money bail as a condition of release and defendants’ rates of appearance in court. 65. Other jurisdictions employ non-monetary conditions of release, including, but not
limited to, unsecured or “signature” bonds, stay-away orders, curfews, or home detention. 66. Other courts also employ less restrictive methods of maximizing public safety and
court appearances when necessary to guard against a particular risk, including unsecured bond, reporting obligations, phone and text message reminders of court dates, rides to court for those without transportation or a stable address, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
67. Defendants are permitted by state law to use these alternatives but, as a matter of routine, choose not to consider them, even when their widespread use of secured financial conditions results in the pretrial detention of poorer arrestees.
68. Defendants’ policies have ramifications for the entire Orleans community and criminal legal system.
69. Pretrial detention causes unnecessary lost employment, lost housing and shelter, and creates instability in care for dependent children and parents. It also unnecessarily subjects
13

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detained individuals to violent conditions in the Orleans jail, causing harm to arrestees’ physical
and mental health. This increases community costs and make a person less stable and healthy
upon their ultimate release.
70. Individuals who are detained pretrial — instead of released on money bail or on a
personal bond — have worse case outcomes in every measurable way, even when controlling for
all other factors.7
71. Setting a secured money bail without an inquiry into ability to pay and in an
amount higher than a person can afford by definition defeats the purpose of money bail — to
incentivize a person to return to court — and removes any legitimate (let alone compelling) state
interest in the setting of a financial condition. Nor is setting money bail without findings
7 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), available at https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; Arpit Gupta, et al., The Heavy Costs of High Bail: Evidence from Judge Randomization 45 J. Legal Stud. 471, 472, 487 (2016) (finding a 12 percent increase in the likelihood of conviction when money bail is imposed); Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stanford L. Rev. 711 (2017) (finding that misdemeanor pretrial defendants detained in Harris County, Texas, were 25% more likely to plead guilty, 43% more likely to be sentenced to jail, and had sentences more than twice as long as those defendants who were released pretrial); Lise Olson, Study: Inmates Who Can’t Afford Bond Face Tougher Sentences Houston Chron., Sept. 15, 2013, available at http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-Inmates-who-can-tafford-bond-face-tougher-4817053.php (discussing Carlos Mathis, an African-American man, who was held in jail for seven months on minor drug and theft charges because he could not afford money bail, and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and the Effects of Pretrial Services Programs (Mar. 11, 2013), available at http://www.pretrial.org/download/research/Racial %20Disparities%20at%20Pretrial%20and%20Sentencing%20and%20the%20Effects%20of%20Pretrial%20Services %20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones, “Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013); Tina L. Freiburger, et al., The Impact of Race on the Pretrial Decision, American Journal of Criminal Justice (2010), available at http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf; The Hidden Costs of Pretrial Detention at 3, 19 (Nov. 2013), available at http://www.pretrial.org/download/research/The%20Hidden%20Costs%20of%20 Pretrial%20Detention%20-%20LJAF%202013.pdf (studying 153,407 defendants and finding that “when held 2–3 days, low risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours”); Arnold Foundation, Pretrial Criminal Justice Research Summary 5 (2013), available at: http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Researchbrief_FNL.pdf (finding that “low-risk defendants held 2–3 days were 17 percent more likely to commit another crime within two years” and that those detained “4–7 days yielded a 35 percent increase in re-offense rates.”).
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concerning ability to pay or alternatives to detention the most narrowly tailored way to meet any other legitimate or compelling government interest.
Class Action Allegations 72. The named Plaintiffs brings this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 73. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class members can challenge the Defendants’ unlawful postarrest detention scheme. 74. This action is brought and may properly be maintained as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. 75. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 76. Plaintiffs propose the following class seeking declaratory relief only:
all individuals with pending state misdemeanor or felony cases who will, after acceptance of their charges by the District Attorney, appear before Defendant Judges for proceedings concerning pretrial release. A. Numerosity. Fed. R. Civ. P. 23(a)(1). 77. Each arrestee is presented with the Defendants’ standard money-bond options of pay or jail. Arrestees are detained in jail for varying lengths of time depending on how long it takes them to make the payment that Defendants require for their release, or to obtain a commercial surety. 78. The number of current and future arrestees subjected to these policies is innumerable. Over fifteen thousand individuals are arrested in Orleans Parish annually. In a
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five-month period in 2018, an average of 448 prisoners per day were detained solely on secured money bonds that they could not afford. Defendants establish post-acceptance release conditions for a large portion of those arrestees. Including future arrestees, the proposed Class contains thousands of people.
B. Commonality. Fed. R. Civ. P. 23(a)(2). 79. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The Plaintiffs seek relief concerning a determination as to whether the Defendants’ policies, practices, and procedures violate the rights of the Class members. 80. These common legal and factual questions arise from one central scheme and set of policies and practices: Defendants’ post-arrest detention policies and procedures (or lack thereof) that they follow when imposing financial conditions of release, and their structural financial conflict of interest in those judicial decisions. Defendants operate this scheme openly and in materially the same manner every day. The material components of the scheme do not vary from Class member to Class member, and the resolution of these legal and factual issues will determine whether all of the members of the class are entitled to the constitutional relief that they seek. Among the most important, but not the only, common questions of fact are:
• Whether Defendants have a policy and practice of refusing to conduct an inquiry into ability to pay prior to requiring secured financial conditions of release;
• Whether Defendants have a policy and practice of routinely refusing to consider non-financial conditions of release in many cases;
• Whether Defendants require secured financial conditions of release without making any findings that those conditions are the least restrictive condition necessary to mitigate any particular risks identified;
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• Whether Defendants require de facto orders of pretrial detention based on unattainable secured financial conditions of release without applying any applicable legal or evidentiary standard, let alone by clear and convincing evidence;
• Whether Defendant Judges exercise control over the expenditure of funds generated through the fee on commercial surety bonds they set;
• Whether the funds generated from the fee on commercial surety bonds are significant such that they would provide a possible temptation to the average man as a judge.
Among the most important common question of law are:
• Whether Defendants violate the Fourteenth Amendment’s Due Process and Equal Protection Clauses by requiring a financial condition of pretrial release without inquiry into and findings, by clear and convincing evidence, concerning a person’s ability to pay and alternative non-financial conditions of release after a robust adversarial hearing;
• Whether Defendants’ institutional financial conflict of interest in the imposition of secured financial conditions of release violates the Fourteenth Amendment’s Due Process Clause.
C. Typicality. Fed. R. Civ. P. 23(a)(3). 81. The named Plaintiffs’ claims are typical of the claims of the other members of the Class, and he has the same interests in this case as all other members of the Class that he represents. Each of them suffers injuries from the Defendants’ failure to comply with basic constitutional provisions: they each face confinement in jail because they could not afford to pay Defendants’ required bond amount. The answer to whether Defendants’ policies and practices are unconstitutional will determine the claims of the named Plaintiffs and every other Class member. 82. If the named Plaintiffs succeed in their claims that the Defendants’ policies and practices concerning post-arrest detention violate his constitutional rights, that ruling will likewise benefit every other member of the Class.
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D. Adequacy. Fed. R. Civ. P. 23(a)(4). 83. The named Plaintiffs are adequate representatives of the Class because his interests in the vindication of the legal claims that they raise are entirely aligned with the interests of the other Class members, who each have the same basic constitutional claims. They are members of the putative Class, and their interests coincide with, and are not antagonistic to, those of the other Class members. 84. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of their unlawful treatment by their local government. 85. Plaintiffs are represented by attorneys from the Roderick and Solange MacArthur Justice Center in New Orleans (“MacArthur Justice Center”)8 and Civil Rights Corps9 who have experience in litigating complex civil rights matters in federal court and knowledge of both the details of the Defendants’ policies and practices and the relevant constitutional and statutory law. They have litigated a similar claim in this Court against OPCDC Magistrate Cantrell. Caliste v. Cantrell, No. 17-cv-06197. 86. The efforts of Class counsel have so far included investigation of Defendants’ money-based pretrial detention system, interviews of jail inmates and attorneys practicing in the area, consultation with local and national experts, and research regarding the legality of Defendants’ secured money-bail regime.
8 The MacArthur Justice Center is a non-profit public interest law firm. Undersigned counsel, Jim Craig, is Director of the MacArthur Justice Center’s Louisiana office and has practiced in federal and state courts in Mississippi and Louisiana for over thirty years. He has litigated multiple complex civil matters, including class actions. Undersigned counsel Eric Foley is an attorney at the MacArthur Justice Center and has practiced law in Louisiana for eight years, litigating a wide variety of complex civil matters in state and federal court, including class action cases. 9 Civil Rights Corps is a non-profit civil rights organization based in Washington, D.C. Counsel from Civil Rights Corps has been counsel in nearly twenty similar federal civil rights class action lawsuits.
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87. Class counsel have studied the way that post-arrest detention systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipal entities.
88. Class counsel also have experience litigating similar challenges in other jurisdictions and years of experience litigating complex and important cases in Louisiana federal courts.
89. As a result, counsel have undertaken significant efforts toward becoming intimately familiar with the Defendants’ scheme and with all of the relevant state and federal laws and procedures than can and should govern it. The interests of the members of the Class will be fairly and adequately protected by the named Plaintiffs and their attorneys.
E. Rule 23(b)(2). 90. Class action status is appropriate because Defendants, through the policies, practices, and procedures that make up their post-arrest money-based release and detention scheme, act in the same unconstitutional manner with respect to all class members. Defendants have created and applied a scheme of post-arrest detention and release procedures that requires presumptively innocent arrestees to pay a bond to a commercial surety to secure their release. Defendants release those who can pay and detains those who cannot, without considering alternative non-financial conditions of release or conducting the constitutionally required inquiry into ability to pay. 91. The Class therefore seeks declaratory relief as to Defendants’ policies, practices, and procedures, which are unconstitutional in materially the same way for every class member. Because the putative Class challenges Defendants’ scheme as unconstitutional through
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declaratory relief that would apply the same relief to every member of the Class, Rule 23(b)(2) certification is appropriate and necessary.
Claims Count One: Defendants’ Policies and Practices Violate Plaintiffs’ Rights By Jailing Them Solely Because They Cannot Afford a Money Payment Without an Inquiry Into and Findings Concerning Their Ability to Pay or Non-Financial Alternative Conditions of Release. 92. Plaintiffs incorporate by reference the allegations in paragraphs 1–91. 93. The Fourteenth Amendment’s Due Process and Equal Protection Clauses have long prohibited keeping a person in jail solely because of the person’s inability to make a monetary payment. Defendants violate Plaintiffs’ fundamental rights by keeping him in jail after arrest when he cannot afford to pay the amount of money set by Defendants without an inquiry into and findings concerning their ability to pay or alternative non-financial conditions of release. Pretrial detention, whether transparent or de facto through unattainable conditions of release, requires a finding that pretrial detention is necessary because alternatives are insufficient to serve the government’s compelling interests. Due process further requires that this substantive finding be made pursuant to robust procedural safeguards, including notice, an opportunity to be heard and to confront evidence, counsel, and findings on the record by clear and convincing evidence explaining the evidence relief on to find that pretrial detention is necessary. Count Two: Defendants’ Institutional Financial Conflict of Interest in the Imposition of Secured Financial Conditions of Release Violates Due Process 94. The Due Process Clause ensures the fundamental neutrality of American judicial proceedings. Defendant Judges’ dual role as judge determining conditions of pretrial release and as executives in charge of managing the Court’s finances that are significantly affected by these judicial decisions creates an institutional conflict of interest that deprives Plaintiffs of their right
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to a neutral tribunal. In Defendants’ courtrooms, Defendants impose these secured financial conditions of release that Defendants know will result in their collecting and controlling 0.8% of the bond amount into a fund that they manage. This creates an intolerable judicial financial conflict of interest and results in a proceeding that lacks the basic neutrality required in American law.
Prayer for Relief WHEREFORE, Plaintiffs and the other Class members request that this Court issue the following relief: a. A declaratory judgment that the Defendants violate the named Plaintiffs’ and Class
members’ constitutional rights by jailing Plaintiffs and Class members and keeping them in jail solely because they are poor and cannot afford to pay an amount of money to secure release without a finding that this wealth-based pretrial detention is necessary and without providing the procedural safeguards required by due process to ensure the accuracy of that finding. b. A declaratory judgment that Defendants have a conflict of interest that violates the Due Process rights of class members appearing before them where they impose secured financial conditions of pretrial release and control the fund into which fees based on those conditions are placed.
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Respectfully submitted, /s/ Eric A. Foley Eric A. Foley, La. Bar No. 34199, T.A. James W. Craig, La. Bar No. 33687 Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, La 70119 (504) 620-2259 (p) (504) 208-3133 (f) eric.foley@macarthurjustice.org jim.craig@macarthurjustice.org
/s/ Alec Karakatsanis Alec Karakatsanis, D.C. Bar No. 999294 (pro hac vice application pending) Civil Rights Corps 1601 Connecticut Avenue, Suite 800 Washington, DC 20009 (202) 681-2409 alec@civilrightscorps.org Counsel for Plaintiff
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 Case 2:19-cv-13553-EEF-MBN Document 67 Filed 08/21/20 Page 1 of 17

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

MILES MORAN, ET AL

CIVIL ACTION

VERSUS

NO. 19-13553

KEVA LANDRUM-JOHNSON, ET AL

SECTION "L" (5)

ORDER & REASONS

Pending before the Court are Plaintiffs’ Motions to Certify Class, R. Docs. 3, 48, and

Defendants’ Motions to Dismiss, R. Docs. 28, 53. Defendants oppose the Motions to Certify, R.

Docs. 33, 52, and Plaintiffs oppose to Motions to Dismiss, R. Docs. 34, 59. Because the motions

present interrelated issues, the Court considers them collectively. Having considered the applicable

law and the parties’ arguments, the Court now rules as follows.

I. BACKGROUND

Plaintiffs in Moran and Matthews are pretrial detainees who, at the time of filing, had cases

pending in the Orleans Parish Criminal District Court (“OPCDC”). They claim that they were

impermissibly jailed despite voicing to the court their inability to pay the bond amounts imposed.

R. Doc. 10 at 8-10. As a result, they purportedly remain jailed. R. Doc. 10 at 9-10. On June 5,

2020, the Moran and Matthews cases were consolidated on the grounds that they involved the

same defendants and identical allegations, requested the same type of relief, and that consolida tion

would conserve judicial resources and allow for timely resolution of the matters. R. Doc. 45.

Defendants are thirteen OPCDC judges with one notable exception: Judge Cantrell. A

substantially similar suit was previously filed by different Plaintiffs against Judge Cantrell (the

“Caliste” case or action). Just as in the Caliste case, Plaintiffs here assert two claims relating to

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Defendants’ bail practices.1 First, Plaintiffs allege that the Defendant Judges violate due process by systematically setting bond for criminal defendants without first inquiring into their ability to pay the bond or considering alternative nonfinancial conditions of release (“Count I”). Second, Plaintiffs allege that Defendants violate due process by serving in the “dual role” of determining conditions of pretrial release and managing the court’s finances. (“Count II”). R. Doc. 10 at 2021. According to Plaintiffs, this dual role creates an unconstitutional conflict of interest because Louisiana law requires a portion of bond amounts collected from commercial sureties to be allocated to a “judicial expense fund” which is administered by the judges and, except to pay judges’ salaries, shall “be used for any purpose connected with, incidental to, or related to the proper administration or function of the court or the office of the judges thereof.” La. Rev. Stat. §§ 13:1381.4(C), (D); R. Doc. 10 at 11-12.
On June 9, 2020, Governor Jon Bel Edwards signed Act 110 of the 2020 Regular Session of the Louisiana Legislature. H.B. 842, 2020 Reg. Sess. (La. 2020). The Act requires that all fees from commercial sureties formerly deposited into the Judicial Expense Fund be held in an escrow account that is annually distributed to the City of New Orleans and used to “defray[] the expenses of the criminal justice system in Orleans Parish.” Id. Based on this legislative change, Plaintiffs stipulated to the dismissal of Count II in both Moran and Matthews, thus only claims related to Count I are currently before the Court.
1 Notably, the claims at issue in both Moran and Matthew are identical to thoseraised in Caliste and have been litigated at length in the Caliste action. In Caliste, the Court found that the Fourteenth Amendment requires an inquiry into ability to pay bond and that JudgeCantrell’s failure to make this inquiry violated due process. 329 F. Supp. 3d 296, 312 (E.D. La. 2018), aff'd, 937 F.3d 525 (5th Cir. 2019). The Court also found that Judge Cantrell’s role violated due process becauseJudge Cantrell both managed bond fee revenue and determined whether a pretrial detainee is able to pay bail and the bond amount. 329 F. Supp. 3d 296, 317 (E.D. La. 2018). This finding was affirmed by the Fifth Circuit, Caliste v. Cantrell, 937 F.3d 525 (5th Cir. 2019), and the Supreme Court denied writ, White v. Cain, 140 S. Ct. 1120 (2020).
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II. PENDING MOTIONS A. Plaintiffs’ Motions to Ce rtify Class [R. Docs. 3; 48] Plaintiffs seek Rule 23(b)(2) class certification with respect to Count I claims in this
consolidated case. In both Moran andMatthews, Plaintiffs seek certification of the following class: “All individuals with pending state misdemeanor or felony cases who will, after acceptance of their charges by the District Attorney, appear before Defendant Judges for proceedings concerning pretrial release.” R. Doc. 3-1 at 2; 48-1 at 2. In the motions, Plaintiffs maintain that Defendants apply the same allegedly unconstitutional bail practices to the entire class,2 their claims are representative of the class claims, the named plaintiffs’ stake in the controversy is sufficient to represent the class, and all the Defendants have acted in the same way with respect to all class members. R. Docs. 3-1 at 3, 11-1 at 3-4.
Defendants oppose the motion. R. Doc. 33. Defendants argue that the class is not certifiable primarily because the named representatives do not have standing to represent the class and because the requirements of Rule 23 have not been satisfied. R. Doc. 33 at 1.
B. Defendants’ Motions for Dismiss [R. Docs. 28; 53] Defendants have filed two motions to dismiss for lack of subject matter jurisdiction in this consolidated matter.3 R. Docs. 17, 28, 53. In both motions, Defendants seek dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). Like the motions for class certification, these motions are almost identical, at least with respect to the legal issues raised. Defendants argue the Moran and Matthews Plaintiffs lack standing because their injuries
2 Specifically, Plaintiffs argue theDefendant Judges collectively “fail to: make an inquiry into ability to pay, making findings as to ability to pay, consider nonfinancial alternative conditions of release, make findings as to the sufficiency of those alternative conditions to reasonably ensure . . . future appearance in court or community safety, or apply the clear-and-convincing evidentiary standard for these findings when they result in pretrial detention.” R. Doc. 48-1 at 2.
3 Defendants had originally filed a partial motion to dismiss Count II in Moran, R. Doc. 17, but this motion is moot in light of Act 110 of the 2020 Regular Session and theensuing stipulation of dismissal., R. Doc. 55.
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are speculative, conjectural, and hypothetical, and cannot be traced to the actions of the Defendant Judges, in contravention of Article III’s “injury in fact” requirement. R. Doc. 28-1 at 4. In essence, Defendants argue Plaintiffs’ injury—“the deprivation of constitutional rights in a future bail reduction hearing”—is hypothetical and speculative because the injury would require the District Attorney to accept the charges against them, their case to be assigned to a section of the Court, and the presiding Judge to consider and rule on a motion that deprived Plaintiff of their rights, a chain of events that had not occurred with respect to either named Plaintiff at the time the suit was filed. R. Doc. 28-1 at 6. Defendants argue that even the Matthews Plaintiffs, whose charges have been accepted, do not face imminent injury because an injury would require a yet-to-be-determined Defendant Judge who could make a bail modification decision, to actually make such a modification, and to do so in an unconstitutiona l manner. R. Doc. 53-1 at 6. Defendant argues that the alleged depravation of due process is similarly not traceable to the Defendant Judges because the named Plaintiffs have not yet, and may never, appear before the Defendant Judges for consideration of bail. R. Doc. 53-1 at 7.
Plaintiffs oppose the motion. R. Doc. 34, 59. Plaintiffs argue that they suffered imminent, concrete and particularized injuries because, at the time of filing, it was substantially certain that their cases would be randomly allotted to a section of the Court presided over by a Defendant Judge. R. Doc. 34 at 9. In Plaintiffs’ view, their allegation that the Defendant Judges all engage in unconstitutional bail setting practices, which must be accepted as true at this stage in the litigation , causes an injury that is certain to imminently occur. R. Doc. 34 at 11; R. Doc. 59 at 2 (incorporating the arguments made in the opposition brief in Moran). Plaintiffs also argue the claims of a class are not rendered moot simply because a named plaintiff’s claims have become moot, as is often the case where the injury is capable of repetition yet evades review. R. Doc. 34 at 17; R. Doc. 59
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at 3. III. LAW & DISCUSSION Because “the Supreme Court has repeatedly instructed that [a court] should first decide
whether a proposed class satisfies Rule 23, before deciding whether it satisfies Article III—and that there is no need to answer the latter question if the class fails under the former,” Flecha v. Medicredit, 946 F.3d 762, 768–69 (5th Cir. 2020) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591, 612 (1997)), the Court’s analysis begins with the issue of whether class certification is appropriate.
A. Class Ce rtification Unde r Rule 23 Class actions permit representative plaintiffs to litigate their claims on behalf of members
of the class not before the court. The purpose of a class action is to avoid multiple actions and to allow claimants who could not otherwise litigate their claims individually to bring them as a class. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983). A district court has great discretion in certifying and managing a class action. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). The party seeking class certification bears the burden of proving all the requirements set out in Rule 23 of the Federal Rules of Civil Procedure.
A class may be certified under Rule 23 if it meets the four prerequisites found in Rule 23(a) and an additional requirement found in Rule 23(b). The four prerequisites for certifying a class include: (1) numerosity (a class so large that joinder of all members is impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality (named parties’ claims or defenses are typical of the class); and (4) adequacy of representation (representatives will fairly and adequately protect the interests of the class). Mullen, 186 F.3d at 623 (citing Amchem, 521 U.S. at 613). If the four prerequisites of 23(a) have been demonstrated, plaintiffs must satisfy one
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of the elements of 23(b). Here, Plaintiffs rely on Rule 23(b)(2), which provides for certification of class actions if
the prerequisites of Rule 23(a) are satisfied and “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “If the plaintiffs s[eek] only injunctive and declaratory relief, [there is] no trouble certifying the proposed class[],” assuming the prerequisites of Rule 23(a) are satisfied. Broussard v. Foti, No. 00-2318, 2001 WL 699525, at *2 (E.D. La. June 18, 2001). The Court reviews each requirement in turn.
A court must “conduct a rigorous analysis of the Rule 23 prerequisites before certifying a class.” Bell Atl. Corp. v. AT&T Corp., 339 F.3d 294, 301 (5th Cir. 2003) (quoting O'Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 738 (5th Cir. 2003) (quotations omitted)). In conducting this analysis, the court is permitted to “look past the pleadings to determine whether the requirements of rule 23 have been met” because the court “must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.” Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir. 1996).
1. Numerosity—Rule 23(a)(1) To demonstrate numerosity, Plaintiffs must establish that joinder is impracticable through “some evidence or reasonable estimate of the number of purported class members.” Pederson v. La. State Univ., 213 F.3d 858, 868 (5th Cir. 2000). While the number of members in a proposed class is not dispositive, the Fifth Circuit has cited with approval Professor Newberg's treatise which “suggest[s] that any class consisting of more than forty members ‘should raise a presumption that joinder is impracticable.’” Mullen, 186 F.3d at 624. A court may consider whether the class
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encompasses future, currently unknown members when making this determination. Pederson, 213 F.3d at 868 (“[T]he fact that the class includes unknown, unnamed future members also weighs in favor of certification.”).
Plaintiffs argue numerosity is satisfied because thousands of people are arrested each year in Orleans Parish, hundreds of which are detained pending trial, and the class is constantly evolving because pretrial release conditions are adjudicated every day. R. Doc. 3-1 at 5. Defendants contend numerosity fails because the size of the class is inherently speculative. R. Doc. 33 at 17.
Plaintiffs in this case satisfy the numerosity requirement because there is a speculative, yet significant number of potential class members whose charges have been accepted and have been subjected to improper bail decisions. While not all those arrested and detained pretrial in Orleans Parish will proceed in a fashion that allows him or her to challenge the conditions of release, the number of individuals that remain in pretrial custody due to an inability to made bail and the constantly evolving nature of the class satisfy the numerosity requirement here.
2. Commonality—Rule 23(a)(2) Rule 23(a)(2) requires a plaintiff to show that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982)). In other words, commonality is satisfied where plaintiffs’ claims “depend upon a common contention” that is “of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Here, Plaintiffs allege that all twelve Defendant Judges fail to inquire about an arrestee’s
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ability to pay before imposing a financial condition of release and fail to consider nonfinancial alternative conditions of release. Matthews, R. Doc. 1 at 7. According to Plaintiffs, commonality is satisfied because their claims all concern common facts, such as whether Defendants in fact refuse to consider affordability and non-financial conditions of release, and resolution of legal questions, such as whether the Defendant Judges’ practices violate the Fourteenth Amendment’s Due Process and Equal Protection Clauses. R. Doc. 3-1 at 9; 48-1 at 9. Defendants argue that commonality does not exist because the common questions or law and fact only arise “if a series of future speculative events occurs in each class member’s criminal case.” R. Doc. 33 at 11. In particular, Defendants argue common questions about the Defendant Judges’ actions will not arise for a large number of class members who will have their charges dropped, their cases assigned to the magistrate judge, or municipal or traffic court, who will set appropriate bail in the appropriate manner, or who will satisfy the conditions of release or otherwise never seek modification of such conditions. Id.
As an initial matter, Defendants’ opposition misunderstands the proposed class definition. Notably, the class here is comprised of only those individuals whose charges have been accepted by the District Attorney and allotted to a Defendant Judge who will have the opportunity to consider conditions of pretrial release. To that extent, the class does not contain any individua l whose case will proceed before anyone but the twelve Defendant Judges, or any individual who will satisfy a condition or bail or fail to proceed before a Defendant Judge with respect to his or her conditions of release.
The Court recognizes that with respect to the limited number of individuals who will appear before a Defendant Judge for consideration of pretrial release, their claims all involve allegations of a common unconstitutional practice shared by all twelve Defendant Judges. A shared practice
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or pattern of behavior can be the basis for a class-wide injury and the “[a] policy or practice need not be officially adopted.” M.D. v. Perry, 294 F.R.D. 7, 39 (S.D. Tex. 2013).
However, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule [23]—that is, he must be prepared to prove that there are in fact . . . common questions of law or fact.” Wal-Mart, 564 U.S. at 350. In other words, “courts must certify class actions based on proof, not presumptions.” Flecha, 946 F.3d 762, 768 (5th Cir. 2020). Here, Plaintiffs’ case requires proof that all twelve Defendant Judges employ certain bail procedures and that those procedures are unconstitutional.
At this juncture, however, these allegations are completely unsubstantiated since the pleadings are devoid of any specific facts or examples that illustrate what practices the Defendant Judges routinely employ and how such procedures are unconstitutional. No discovery has been conducted in this matter and there is no evidence to even suggest that a single Defendant Judge acts in an unconstitutional manner, let alone all twelve. The Court is not prepared to accept Plaintiffs’ allegation at face value for the purpose of class certification without at least some supporting evidence. See Flecha, 946 F.3d at 768 (5th Cir. 2020) (holding that the putative class was “left without a common issue” where the plaintiff had not “affirmatively demonstrated” that the defendants acted in the allegedly injurious way towards all class members); Dockery v. Fischer, 253 F. Supp. 3d 832, 853 (S.D. Miss. 2015) (finding that commonality was established in light of affidavits, deposition testimony, and expert reports substantiating plaintiffs’ claim); see also In re Kosmos Energy Ltd. Sec. Litig., 299 F.R.D. 133, 139 (N.D. Tex. 2014) (“[Plaintiffs] will face a rigorous analysis by the federal courts, will not be afforded favorable presumptions from the pleadings or otherwise and must be prepared to prove with facts . . . their compliance with the requirements of Rule 23.”).
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Further, Plaintiffs’ allegations alone do not allow the Court to conclude that all class members have “suffered the same injury.” Wal-Mart, 564 U.S. at 350. In fact, the Court questions whether a significant portion of the class has suffered an injury at all. It appears as though a Defendant Judge only has the opportunity to inflict the specified injury on a class member in two scenarios: (1) by imposing new or more onerous financial conditions of release than imposed by the Magistrate Judge, and doing so without considering affordability or alternative conditions; or (2) declining to modify a financial condition imposed by the Magistrate in a manner that was itself unconstitutional, again without considering affordability or alternative conditions. The Court is hard pressed to imagine that the first scenario occurs much, if at all. With respect to the second scenario, the Court recently considered a challenge to the administration of bail hearings in OPCDC and, in declining to hold Magistrate Judge Cantrell in contempt of a Consent Judgment entered into in the Caliste action, found that he now is substantially compliant with constitutiona l requirements when presiding over bail hearings. Accordingly, even if Plaintiffs had established that a common practice exists among the twelve Defendant Judges, the application of that practice would not affect the class members in a uniform way, as only some class members would actually be injured as a result. In sum, the Court is skeptical that any class member has actually sustained the alleged injury in the manner described but concedes that discovery on this issue could possibly reveal whether any Plaintiffs are in fact injured, and if so, whether they are injured in the same manner, by the same practices followed by all of the Defendant Judges. Accordingly, the Court will allow the parties to conduct discovery on this issue and re-seek class certification in the light of new evidence that is established.
3. Typicality—Rule 23(a)(3) Rule 23(a)(3) requires that the claims of the class representatives are typical of the class'
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claims or defenses. The threshold for typicality is low: class representatives must show similarity between their legal and remedial theories and the theories of the rest of the class. Mullen, 186 F.3d at 625. Typicality does not require that the claims of the class are identical, but rather that they share the same essential characteristics—a similar course of conduct, or the same legal theory. Stirman v. Exxon Corp., 280 F.3d 554, 562 (5th Cir. 2002) (citing James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001)). However, “[t]he commonality and typicality requirements of Rule 23(a) tend to merge.” Falcon, 457 U.S. at 157 n.13.
Plaintiffs argue typicality is satisfied because the named representatives were, at the time of filing, “imminently subject to the practices alleged in the Complaint and will suffer the exact same constitutional violations” as all other Class members. R. Doc. 3-1 at 10. Defendants argue that the named representatives’ claims are not typical because their criminal cases are now at different stages of the proceeding such that they no longer face the risk of having their bail unconstitutionally modified. R. Doc. 33 at 15.
Like commonality, typicality does not exist at this juncture because the “essential characteristics” of this case have not been identified with the degree of particularity required at the class certification stage. Of course, if, after some discovery, Plaintiffs are able to affirmatively demonstrate that a common legal or factual issue governs resolution of each class members’ claim, it is likely that typicality will be satisfied because the named representatives here were, at the time of filing, imminently subject to the allegedly unconstitutional pretrial detention practices of the Defendant Judges.
4. Adequacy—Rule 23(a)(4) Rule 23(a)(4) demands that the named class representatives fairly and adequately represent
the claims of the other class members. There can be differences between the position of class
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representatives and other class members so long as these differences do not “create conflicts between the named plaintiffs' interests and the class members' interests.” Mullen, 186 F.3d at 626. A district court should evaluate whether the class representatives have a sufficient stake in the outcome of the litigation, and whether the class representatives have interests antagonistic to the unnamed class members. Id. (citing Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 472 (5th Cir.1986)). In addition, the district court should inquire into the zeal and competence of the class representatives' counsel and into the class representatives' willingness to take an active role in the litigation and to protect the interests of absentees. Berger v. Compaq Computer Corp., 257 F.3d 475, 479 (5th Cir.2001).
Plaintiffs argue adequacy is satisfied here even though the named representatives are almost certain to be released before the resolution of this matter because “the transitory nature of his claims [ensures that] he continues to maintain a sufficient live stake” in the controversy.” R. Doc. 3-1 at 11. Defendant argues that the named representatives cannot adequately represent the class because they have not been subjected to the allegedly unconstitutional policies and practices they “claim are central and common to their proposed class.” R. Doc. 52 at 11–12. In the Moran matter, Defendants specifically stress that Mr. Moran’s charges were rejected by the District Attorney after the filing of this case and that Mr. Taylor pled guilty to the felony charge and received credit for time served, extinguishing both plaintiffs of their interest in the case. R. Doc. 33 at 16.
Here, the named representatives and counsel can adequately represent the proposed class. The parties have raised no issues regarding the named representatives’ conflicting interests or motivations, and as pre-trial detainees, the representatives have as much of a stake in the outcome of this case as anyone else. The fact that their status as pre-trial detainees might have changed
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during the pendency of the case exemplifies why standing exists when an injury is capable of repetition yet evading review. Further, the Court is satisfied that Plaintiffs’ counsel, having already secured a favorable decision in Caliste, will zealously and competently pursue this case for the benefit of all class members.
5. Rule 23(b)(2) In addition to satisfying the four requirements of Rule 23(a), a plaintiff seeking class
certification must satisfy one of the requirements of Rule 23(b). Here, Plaintiffs seek certification under Rule 23(b)(2), which permits “class actions for declaratory or injunctive relief when ‘the party opposing the class has acted or refused to act on grounds generally applicable to the class.’” Amchem Prods., 521 U.S. at 614, 117 S. Ct. 2231; see also Fed. R. Civ. P. 23(b)(2). The rule clearly states that claims seeking injunctive or declaratory relief may be appropriate for Rule 23(b)(2) class certification. Courts have interpreted Rule 23(b)(2) as containing two requirements: “(1) behavior generally applicable to the class as a whole; (2) injunctive relief predominates over damages sought.” Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 975 (5th Cir. 2000).
In Wal–Mart Stores, Inc. v. Dukes, the Supreme Court set forth the purposes of a 23(b)(2) class:
The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. 564 U.S. 338 (citation omitted). Plaintiffs argue Rule 23(b)(2) is satisfied because the requested relief—declaratory
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judgment—would resolve the issue with respect to the entire class. Plaintiffs stress that Defendants’ alleged practice of conditioning pretrial release on the payment of cash bail without questioning an individual’s ability to pay affects all proposed class members in the exact same fashion, such that a declaration “setting forth, as this Court did in Caliste, the basic substantive and procedural requirements for an order of pretrial detention would equally benefit every member of the class.” R. Doc. 3-1 at 13. Defendants, on the other hand, aver Rule 23(b) is not satisfied because there have been no allegations made that the Judges acted or failed to act in any generally applicable way to the class. R. Doc. 33 at 17-19.
The Court is not satisfied that Rule 23(b)(2) is satisfied at this juncture, largely for the same reasons that commonality and typicality were not established. No damages are sought here; accordingly, the only issue is whether Defendants’ behavior is “generally applicable to the class as a whole.” See Bolin, 231 F.3d at 975. However, there is nothing in the record to suggest that the Defendant Judges behave in such a manner. Notably, the pleadings are devoid of anything beyond bare, unsubstantiated assertions that all twelve Defendant Judgments routinely violate Plaintiffs’ constitutional rights when reconsidering pretrial release conditions. Discovery has not occurred in this case yet; accordingly, there is no evidence to support these claims. Without more information, the Court cannot determine whether the Defendants do abide by a common practice, let alone whether that practice is unconstitutional.
At this juncture, the Court believes that class certification is not warranted. However, the Court recognizes that information revealed during the discovery process may shed light on whether commonality, typicality, and the 23(b)(2) requirements are satisfied. Accordingly, the Court will deny this motion without prejudice to Plaintiffs’ right to refile in light of further discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978) (“[D]iscovery often has been used to
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illuminate issues upon which a district court must pass in deciding whether a suit should proceed as a class action under Rule 23, such as numerosity, common questions, and adequacy of representation.”).
B. Standing Article III of the Constitution limits the jurisdiction of the judiciary to “cases” or
“controversies.” U.S. Const. III, § 2. “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” DaimlerChrylser Corp. v. Cuno, 547 U.S. 332, at 341–42 (2006) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37 (1976)). In order to satisfy the Constitution’s Article III standing requirements, a plaintiff must show that: (1) he has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). Because Defendant’s motions to dismiss collectively target all three elements of standing, the Court will discuss each element in turn.
Whether standing must be established for absent class members before class certification can be granted has not been conclusively determined in the Fifth Circuit, although some circuit courts have applied such a requirement. See Flecha, 946 F.3d at 768 (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006). For example in Flecha v. Medicredit, Inc., the Fifth Circuit “d[id] not reach the issue” but found it “significant” that the proposed class included “many unnamed class members . . . who lack the requisite injury to establish Article III standing.” Id. Specifically, Flecha involved a class of individuals who had received a particular debt collection
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letter from Medicredit. Id. at 765. Plaintiff sued under the Fair Debt Credit Collection Act, alleging that she and all others who had received the letter had been injured because the letter suggested that legal action was forthcoming even though the creditor had no intention to sue. Id. With respect to standing, the Court explained the putative class clearly swept in a large number of individua ls who “ignored [the letter] as junk mail or otherwise gave it no meaningful attention” and accordingly were never be injured by it.
Similarly here, the proposed class sweeps in a large number of people who may never be subject to the alleged injury. At the time an individual becomes a class member, whether he will be injured is inherently speculative, as he has not yet appeared before a Defendant Judge. Although imminent injury is sufficient to constitute an “injury in fact” for Article III purposes, this class includes individuals who, when they appear before a Defendant Judge for reconsideration of the conditions of pretrial release, may not be injured even if the Defendant Judge fail to ask questions about affordability and alternative conditions. Specifically, this class definition includes individuals who will have their bail modified appropriately as well as those who are denied bail modification but whose initial bail was constitutionally imposed by the Magistrate Judge.
Nevertheless, like the Flecha court, the Court declines to reach the standing issue at this time. See id. at 768–69 (citing Amchem, 521 U.S. at 612). The Court will accordingly deny the pending 12(b)(1) motions without prejudice as premature, to be re-urged after additional discovery with respect to commonality, typicality, and 23(b)(2)’s requirements.
IV. CONCLUSION Based on the foregoing. IT IS ORDERED that Plaintiffs’ Motion to Certify Class, R. Docs. 3, 48, are DENIED
without prejudice to Plaintiffs’ right to re-seek class certification after some discovery has been
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IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss, R. Docs. 28, 53 are DENIED without prejudice to Defendants’ right to re-urge these motions after the Court has ruled on class certification.
IT IS FURTHER ORDERED that Defendants’ Partial Motion to Dismiss, R. Doc. 17, is DENIED AS MOOT.
New Orleans, Louisiana this 21st day of August, 2020. _______________________________ Eldon E. Fallon United States District Judge
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 Case 2:19-cv-13553-EEF-MBN Document 1 Filed 11/11/19 Page 1 of 21

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

MILES MORAN, for himself and all others similarly situated,
Plaintiff,
v.
KEVA LANDRUM-JOHNSON, Chief Judge of Orleans Parish Criminal District Court; PAUL A. BONIN, CAMILLE BURAS, DARRYL A. DERBIGNY, TRACEY FLEMINGS-DAVILLIER, KAREN K. HERMAN, ARTHUR L. HUNTER, ROBIN D. PITTMAN, DENNIS WALDRON, LAURIE A. WHITE, BENEDICT WILLARD, and FRANZ L. ZIBILICH, in their official capacity as Judges of the Orleans Parish Criminal District Court,
Defendants.

Case No. 19-cv-13553 (Class Action)

CLASS ACTION COMPLAINT 1. Defendants, the Judges of the Orleans Parish Criminal District Court, are responsible for setting conditions of release for people who are arrested and charged with certain crimes in Orleans Parish. Defendants consistently and unlawfully impose secured financial conditions of release in an amount that individuals cannot afford, without any inquiry into or findings concerning their ability to pay or alternatives to incarceration. As a result, the moneybased orders of post-arrest release that they impose constitute de facto orders of pretrial detention for those unable to pay — orders that are issued without the legal and factual findings and procedures required for a valid order of pretrial detention. See Caliste v. Cantrell, 329 F. Supp. 3d 296, 308–15 (E.D. La. 2018).

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2. Defendants have an institutional financial conflict of interest in every secured money bond that they impose because they act both as supposedly neutral judicial officers and as executives responsible for managing the funds generated by each bail order that they set. Louisiana law provides that if (and only if) an arrestee uses a commercial surety to secure pretrial release, the judges of the Orleans Parish Criminal District Court (“OPCDC”) receive 1.8% of the amount of that bond into the court’s Judicial Expense Fund,1 which Defendant Judges control.
3. These policies and practices result in imminent and ongoing violations of fundamental rights. Plaintiff, on behalf of himself and a class of similarly situated arrestees, seeks a declaration that Defendants’ conduct violates the Fourteenth Amendment to the United States Constitution.
Jurisdiction and Venue 4. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. §§ 2201– 02, and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 5. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 6. Plaintiff Miles B. Moran is a pretrial detainee in the custody of Orleans Parish Sheriff Marlin Gusman. He is currently detained at the Orleans Justice Center, 2800 Perdido Street, New Orleans, LA 70119. The Orleans Parish Magistrate has conditioned Mr. Moran’s release on payment of a secured money bail that Mr. Moran cannot afford. Pursuant to standard
1 The Judicial Expense Fund is also referred to by the Orleans Parish Criminal District Court as the “General Fund.” 2

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court assignment practices applicable to all class members, if the District Attorney accepts the charges against Mr. Moran, his case will be allotted to an as yet unknown section of the court, where one of the Defendant Judges will have the authority to determine his conditions of release. The cases of class members are randomly assigned to court sections over which each of the Defendant Judges preside.
7. Defendant Keva Landrum-Johnson is the Chief Judge of the OPCDC and presides over Section E. Judge Landrum-Johnson has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
8. Defendant Paul A. Bonin is a Judge of the OPCDC and presides over Section D. Judge Bonin has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
9. Defendant Camille Buras is a Judge of the OPCDC and presides over Section H. Judge Buras has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
10. Defendant Darryl A. Derbigny is a Judge of the OPCDC and presides over Section J. Judge Derbigny has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
11. Defendant Tracey Flemings-Davillier is a Judge of the OPCDC and presides over Section B. Judge Flemings-Davillier has authority to impose financial conditions of release in
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cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
12. Defendant Karen K. Herman is a Judge of the OPCDC and presides over Section I. Judge Herman has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
13. Defendant Arthur L. Hunter is a Judge of the OPCDC and presides over Section K. Judge Hunter has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
14. Defendant Robin D. Pittman is a Judge of the OPCDC and presides over Section F. Judge Pittman has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
15. Defendant Laurie A. White is a Judge of the OPCDC and presides over Section A. Judge White has authority to impose financial conditions of release in cases that are allotted to her section. She has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
16. Defendant Benedict Willard is a Judge of the OPCDC and presides over Section C. Judge Willard has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
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17. Defendant Dennis Waldron is an ad hoc Judge of the OPCDC and presides over Section G, whose elected judicial officer, Byron Williams, has been disqualified from presiding over cases. Judge Waldron has authority to impose financial conditions of release in cases that are allotted to his section. He relies upon the Judicial Expense Fund’s income to fund the operations of the court.
18. Defendant Franz L. Zibilich is a Judge of the OPCDC and presides over Section L. Judge Zibilich has authority to impose financial conditions of release in cases that are allotted to his section. He has control over the Judicial Expense Fund and relies upon its income to fund the operations of the court.
19. The Defendants are each sued in their official capacities as the judges presiding over the sections to which class members’ cases are assigned and who have the authority and obligation under state law to determine conditions of pretrial release.
Factual and Procedural Summary A. Defendants’ Practice of Imposing Secured Financial Conditions of Release Without
Conducting Any Inquiry into or Making Findings Concerning Ability to Pay or Non-financial Alternatives. 20. In Orleans Parish, persons arrested on suspicion of committing a state misdemeanor or felony are brought before either the Magistrate or the Commissioners of the OPCDC for a First Appearance Hearing, at which conditions of release are determined. 21. If the arrestee remains in custody after the First Appearance Hearing, because they were not released on recognizance and could not afford to pay a financial condition of release, then the District Attorney has between 45 to 120 days, depending on whether the charge is a misdemeanor or felony and its severity, in which to accept charges.
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22. If the arrestee has been released from custody after the First Appearance Hearing, the District Attorney has between 90 to 150 days, depending on whether the charge is a misdemeanor or felony, in which to accept charges.
23. Charges are accepted by filing of a bill of information or an indictment. 24. According to reporting by the Metropolitan Crime Commission, the District Attorney accepted 81% of felony charges in 2015. 25. Once the District Attorney files a bill of information or indictment, the case is randomly allotted to one of the Defendant Judges’ dockets, by operation of La. Rules for Criminal Proceedings in District Courts and its Orleans Parish appendix. 26. Defendant Judges then preside over the arraignment of criminal defendants whose cases have been allotted to them. 27. At the arraignment, Defendant Judges may again consider conditions of release. Often, Defendant Judges either maintain or increase a financial condition of release that had been set by the Magistrate or Commissioners. 28. Defendant Judges may also impose a financial condition of release where none was previously imposed. 29. The Vera Institute of Justice estimates that in the period between August to December 2018, a daily average of 448 prisoners at the Orleans Justice Center were being held on bonds of $100,000 or less. These 448 prisoners had no probation or parole holds and no outof-state warrants; i.e, the only thing keeping them detained was their inability to pay a money bond.
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30. As a matter of practice, Defendant Judges do not inquire into an arrestee’s ability to pay a financial condition of release before imposing one. They do not make findings on the record as to an arrestee’s ability to pay.
31. As a matter of practice, Defendant Judges do not consider nonfinancial alternative conditions of release. They do not make findings on the record as to whether such nonfinancial alternatives would satisfy the government’s interest in the arrestee’s return for future proceedings or in the community’s safety.
32. On information and belief, some Defendant Judges use the threat of increased financial conditions of release to incentivize guilty pleas at arraignment. An individual previously released pretrial may face the prospect of being detained on an increased bail or instead pleading to a crime for which he will face only a non-custodial sentence.
33. Miles Moran was arrested on Oct. 1, 2019, on a felony charge of unauthorized entry of a business, La. R.S. § 14:62.4, and a misdemeanor charge of theft under $500, La. R.S. § 14:67(B)(3), arising from allegations that he had shoplifted $21.28 of drinks and potato chips.
34. He appeared before Magistrate Harry Cantrell on the following day, Oct. 2, 2019, for his first appearance hearing. Magistrate Cantrell ordered that Mr. Moran be released on a $1,250 secured money bond. Magistrate Cantrell remanded Mr. Moran to Sheriff Gusman’s custody because he could not pay that amount.
35. Mr. Moran’s counsel at the Orleans Public Defenders moved for a bond reduction and argued the motion on Oct. 15, 2019. Mr. Moran’s counsel argued that he was indigent, had no stable address, and “would be unable to afford any amount of bond.” His counsel further represented that she had secured a bed for Mr. Moran at Odyssey House, a residential addiction treatment program. Mr. Moran’s counsel requested that he be released on recognizance.
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36. The Assistant District Attorney provided no argument for or evidence concerning why Mr. Moran’s detention was necessary. He stated only, “I see one conviction from ’17 from Mississippi, no failures to appear. I don’t know what his current address situation is now.”
37. Magistrate Cantrell denied, without reason, Moran’s request for release on recognizance and instead lowered his secured money bail from $1,250 to $300.
38. Mr. Moran has not been able to pay this $300 bail and remains jailed as of the filing of this Complaint.
39. The District Attorney’s office has not yet filed a bill of information nor sought an indictment against Mr. Moran, and thus no arraignment is scheduled.2
40. Upon filing of a bill or indictment, Mr. Moran, like any class member in his position, will find himself before any one of the twelve Defendant Judges for arraignment and consideration of conditions of release.
B. Defendants’ Institutional Financial Conflict of Interest When Determining Conditions of Release 41. The Defendant Judges depend on fees assessed on for-profit surety bonds to fund
the operations of their court. 42. In Orleans Parish, the Sheriff collects a $3.00 fee on every $100.00 of liability
underwritten by a commercial surety (bond company). La. R.S. § 22:822(A)(2). 43. Of the $3.00 fee collected on every $100.00 of liability underwritten by a
commercial surety,
2 Mr. Moran’s counsel at the Orleans Public Defenders sought review of Magistrate Cantrell’s bond-reduction decision by filing a Petition for Supervisory Writs to the Louisiana Fourth Circuit on Oct. 29, 2019. That writ application was denied on the same day. On October 31, 2019, Mr. Moran sought review in by the Louisiana Supreme Court. The Supreme Court denied Mr. Moran’s petition on November 1, 2019. Moran filed an emergency petition for writ of habeas corpus, challenging his current detention, in this Court on Nov. 7, 2019. Moran v. Gusman, No. 2:19-cv-13503 (E.D. La. Nov. 7, 2019), and seeking release from custody unless or until a conflictfree judicial officer conducts bail proceedings that comply with the U.S. Constitution.
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i. $1.00 is allocated directly to Orleans Parish Criminal District Court to be managed by the judges.
ii. $2.00 is divided as follows: 1. 40% to Orleans Parish Criminal District Court Judicial Expense Fund; 2. 20% to Orleans Parish Sheriff’s Office; 3. 20% to Orleans Parish District Attorney; 4. 20% to Orleans Parish Office of the Indigent Defender.
La. R.S. §§ 22:822(B)(3), 13:1381.5. 44. No such fee is levied against arrestees who utilize secured personal sureties, post
a cash bail, or are released on recognizance or other non-financial conditions of release. 45. The Defendant Judges deposit the 1.8% fee they receive from commercial surety
bonds into the Judicial Expense Fund, from which they pay for the salaries and benefits of their staff, travel for judicial conferences, office supplies, phone service, building maintenance, legal research, and various other day-to-day expenses.3
46. In 2013, an accountant for the OPCDC addressed the New Orleans City Council, stating that the revenue from the 1.8% bond fee was “critical” to the court’s ability to meets its monthly payroll expenses.
3 The Defendant Judges’ control of the funds collected through the bail bond fee is demonstrated by recent history. Prior to 2012, the judges of the Orleans Criminal District Court used the money collected from the 1.8% bail bond fee to pay for their own personal insurance benefits, including benefits for their spouses. This practice of using the general fund to pay supplemental benefits ceased only after public disclosure by the Louisiana Legislative Auditor. No structural control or mechanism prevents the resumption of this practice, or one like it, in the future.
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47. In recent years, this 1.8% fee on commercial surety bonds accounted for 20–25% of the Judicial Expense Fund, or about one million dollars. Thus, a significant portion of the court’s revenue depends upon criminal defendants posting bond through commercial sureties.
48. Defendant Judges have represented to undersigned counsel that they continue collecting this money but place it in “escrow.” The judges can choose to access this money at any time, and there is no provision under Louisiana law for this funding to be placed into escrow or for it to be used for any purpose other than its statutory purpose to fund the court’s operations.
49. In response to undersigned counsel’s public records request, Orleans Parish Criminal District Court Administrator Robert Kazik informed undersigned counsel that in the year between this Court’s ruling and the Fifth Circuit’s affirmance, the OPCDC had collected $540,407.12 of the conflicted bond funds into “Criminal District Court Criminal Justice ‘Escrow Account.’”
50. In 2015, 97% of those defendants in Criminal District Court who were assessed a financial bail obtained their freedom through a commercial surety. Only 3% paid their full bail in cash.
51. Spending from the Judicial Expense Fund is controlled by Defendant Judges en banc.
52. The deposit of the 1.8% fee on commercial surety bonds into the Judicial Expense Fund for Orleans Parish Criminal District Court creates a conflict of interest for Defendant Judges.
53. Defendants’ chambers directly benefit from the collection of the 1.8% fee on bonds. The infrastructure of their court—from staff salaries to office supplies—depends upon the continued generation of money from for-profit commercial surety fees, which are entirely
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dependent on their judicial decisions. As executives who manage these expenditures, and as judges in charge of ensuring that the court continues to operate, Defendant Judges’ dual executive and judicial roles destroy the judicial neutrality that is a vital component of the American legal system.
54. Defendants’ policy and practice of refusing to consider ability to pay, refusing to consider non-financial alternatives, imposing de facto orders of detention without the process and substantive legal standards required, and institutional financial conflict of interest violate the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Constitution.
55. Defendants do not conduct any proceedings concerning whether a person has the ability to pay the amount of money that they require for bail. Nor do they make any inquiry into or findings concerning whether there is any other non-financial condition or combination of conditions that could reasonably ensure an arrestee’s appearance or the safety of the community. Nor do they conduct any of the proceedings required for a valid order of pretrial detention, including an adversarial hearing at which findings are made pursuant to clearly defined legal standards required by federal law concerning whether alternatives to detention exist that could reasonably mitigate any person’s purported danger to the community or risk of flight.
56. Under Defendants’ money-based practices, those arrestees wealthy enough to pay are released almost immediately after Defendants set their bail. Some poorer arrestees eventually make arrangements with private bail bond companies, after spending days or weeks in jail. And many others, who are too poor to come up with enough money, are left to languish in jail until the resolution of their case.
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C. Defendants’ Bail Practices as an Ineffective Means of Ensuring Public Safety or Criminal Defendants’ Appearance at Trial. 57. The empirical evidence shows that there is no relationship between requiring
secured money bail as a condition of release and defendants’ rates of appearance in court. 58. Other jurisdictions employ non-monetary conditions of release, including, but not
limited to, unsecured or “signature” bonds, stay-away orders, curfews, or home detention. 59. Other courts also employ less restrictive methods of maximizing public safety and
court appearances when necessary to guard against a particular risk, including unsecured bond, reporting obligations, phone and text message reminders of court dates, rides to court for those without transportation or a stable address, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
60. Defendants are permitted by state law to use these alternatives but, as a matter of routine, choose not to consider them, even when their widespread use of secured financial conditions results in the pretrial detention of poorer arrestees.
61. Defendants’ policies have ramifications for the entire Orleans community and criminal legal system.
62. Pretrial detention causes unnecessary lost employment, lost housing and shelter, and creates instability in care for dependent children and parents. It also unnecessarily subjects detained individuals to violent conditions in the Orleans jail, causing harm to arrestees’ physical and mental health. This increases community costs and make a person less stable and healthy upon their ultimate release.
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63. Individuals who are detained pretrial — instead of released on money bail or on a
personal bond — have worse case outcomes in every measurable way, even when controlling for
all other factors.4
64. Setting a secured money bail without an inquiry into ability to pay and in an
amount higher than a person can afford by definition defeats the purpose of money bail — to
incentivize a person to return to court — and removes any legitimate (let alone compelling) state
interest in the setting of a financial condition. Nor is setting money bail without findings
concerning ability to pay or alternatives to detention the most narrowly tailored way to meet any
other legitimate or compelling government interest.
4 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), available at https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; Arpit Gupta, et al., The Heavy Costs of High Bail: Evidence from Judge Randomization 45 J. Legal Stud. 471, 472, 487 (2016) (finding a 12 percent increase in the likelihood of conviction when money bail is imposed); Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stanford L. Rev. 711 (2017) (finding that misdemeanor pretrial defendants detained in Harris County, Texas, were 25% more likely to plead guilty, 43% more likely to be sentenced to jail, and had sentences more than twice as long as those defendants who were released pretrial); Lise Olson, Study: Inmates Who Can’t Afford Bond Face Tougher Sentences Houston Chron., Sept. 15, 2013, available at http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-Inmates-who-can-tafford-bond-face-tougher-4817053.php (discussing Carlos Mathis, an African-American man, who was held in jail for seven months on minor drug and theft charges because he could not afford money bail, and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and the Effects of Pretrial Services Programs (Mar. 11, 2013), available at http://www.pretrial.org/download/research/Racial %20Disparities%20at%20Pretrial%20and%20Sentencing%20and%20the%20Effects%20of%20Pretrial%20Services %20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones, “Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013); Tina L. Freiburger, et al., The Impact of Race on the Pretrial Decision, American Journal of Criminal Justice (2010), available at http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf; The Hidden Costs of Pretrial Detention at 3, 19 (Nov. 2013), available at http://www.pretrial.org/download/research/The%20Hidden%20Costs%20of%20 Pretrial%20Detention%20-%20LJAF%202013.pdf (studying 153,407 defendants and finding that “when held 2–3 days, low risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours”); Arnold Foundation, Pretrial Criminal Justice Research Summary 5 (2013), available at: http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Researchbrief_FNL.pdf (finding that “low-risk defendants held 2–3 days were 17 percent more likely to commit another crime within two years” and that those detained “4–7 days yielded a 35 percent increase in re-offense rates.”).
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Class Action Allegations 65. The named Plaintiff brings this action, on behalf of himself and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 66. A class action is a superior means, and the only practicable means, by which the named Plaintiff and unknown Class members can challenge the Defendants’ unlawful post-arrest detention scheme. 67. This action is brought and may properly be maintained as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. 68. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 69. Plaintiff proposes the following class seeking declaratory relief only:
all individuals with pending state misdemeanor or felony cases who will, after acceptance of their charges by the District Attorney, appear before Defendant Judges for proceedings concerning pretrial release. A. Numerosity. Fed. R. Civ. P. 23(a)(1). 70. Each arrestee is presented with the Defendants’ standard money-bond options of pay or jail. Arrestees are detained in jail for varying lengths of time depending on how long it takes them to make the payment that Defendants require for their release, or to obtain a commercial surety. 71. The number of current and future arrestees subjected to these policies is innumerable. Over fifteen thousand individuals are arrested in Orleans Parish annually. In a five-month period in 2018, an average of 448 prisoners per day were detained solely on secured money bonds that they could not afford. Defendants establish post-acceptance release conditions
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for a large portion of those arrestees. Including future arrestees, the proposed Class contains
thousands of people.
B. Commonality. Fed. R. Civ. P. 23(a)(2).
72. The relief sought is common to all members of the Class, and common questions
of law and fact exist as to all members of the Class. The Plaintiff seeks relief concerning a
determination as to whether the Defendants’ policies, practices, and procedures violate the rights
of the Class members.
73. These common legal and factual questions arise from one central scheme and set
of policies and practices: Defendants’ post-arrest detention policies and procedures (or lack
thereof) that they follow when imposing financial conditions of release, and their structural
financial conflict of interest in those judicial decisions. Defendants operate this scheme openly
and in materially the same manner every day. The material components of the scheme do not
vary from Class member to Class member, and the resolution of these legal and factual issues
will determine whether all of the members of the class are entitled to the constitutional relief that
they seek.
Among the most important, but not the only, common questions of fact are:
• Whether Defendants have a policy and practice of refusing to conduct an inquiry into ability to pay prior to requiring secured financial conditions of release;
• Whether Defendants have a policy and practice of routinely refusing to consider non-financial conditions of release in many cases;
• Whether Defendants require secured financial conditions of release without making any findings that those conditions are the least restrictive condition necessary to mitigate any particular risks identified;
• Whether Defendants require de facto orders of pretrial detention based on unattainable secured financial conditions of release without applying any applicable legal or evidentiary standard, let alone by clear and convincing evidence;
• Whether Defendant Judges exercise control over the expenditure of funds generated through the 1.8% fee on commercial surety bonds they set;
• Whether the funds generated from the fee on commercial surety bonds are significant such that they would provide a possible temptation to the average man
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as a judge. Among the most important common question of law are:
• Whether Defendants violate the Fourteenth Amendment’s Due Process and Equal Protection Clauses by requiring a financial condition of pretrial release without inquiry into and findings, by clear and convincing evidence, concerning a person’s ability to pay and alternative non-financial conditions of release after a robust adversarial hearing;
• Whether Defendants’ institutional financial conflict of interest in the imposition of secured financial conditions of release violates the Fourteenth Amendment’s Due Process Clause.
C. Typicality. Fed. R. Civ. P. 23(a)(3). 74. The named Plaintiff’s claims are typical of the claims of the other members of the Class, and he has the same interests in this case as all other members of the Class that he represents. Each of them suffers injuries from the Defendants’ failure to comply with basic constitutional provisions: they each face confinement in jail because they could not afford to pay Defendants’ required bond amount. The answer to whether Defendants’ policies and practices are unconstitutional will determine the claims of the named Plaintiff and every other Class member. 75. If the named Plaintiff succeeds in his claim that the Defendants’ policies and practices concerning post-arrest detention violate his constitutional rights, that ruling will likewise benefit every other member of the Class. D. Adequacy. Fed. R. Civ. P. 23(a)(4). 76. The named Plaintiff is an adequate representative of the Class because his interests in the vindication of the legal claims that he raises are entirely aligned with the interests of the other Class members, who each have the same basic constitutional claims. He is a
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member of the putative Class, and his interests coincide with, and are not antagonistic to, those of the other Class members.
77. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of their unlawful treatment by their local government.
78. Plaintiff is represented by attorneys from the Roderick and Solange MacArthur Justice Center in New Orleans (“MacArthur Justice Center”)5 and Civil Rights Corps6 who have experience in litigating complex civil rights matters in federal court and knowledge of both the details of the Defendants’ policies and practices and the relevant constitutional and statutory law. They have litigated a similar claim in this Court against OPCDC Magistrate Cantrell. Caliste v. Cantrell, No. 17-cv-06197.
79. The efforts of Class counsel have so far included investigation of Defendants’ money-based pretrial detention system, interviews of jail inmates and attorneys practicing in the area, consultation with local and national experts, and research regarding the legality of Defendants’ secured money-bail regime.
80. Class counsel have studied the way that post-arrest detention systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipal entities.
5 The MacArthur Justice Center is a non-profit public interest law firm. Undersigned counsel, Jim Craig, is Director of the MacArthur Justice Center’s Louisiana office and has practiced in federal and state courts in Mississippi and Louisiana for over thirty years. He has litigated multiple complex civil matters, including class actions. Undersigned counsel Eric Foley is an attorney at the MacArthur Justice Center and has practiced law in Louisiana for eight years, litigating a wide variety of complex civil matters in state and federal court, including class action cases. 6 Civil Rights Corps is a non-profit civil rights organization based in Washington, D.C. Counsel from Civil Rights Corps has been counsel in nearly twenty similar federal civil rights class action lawsuits.
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81. Class counsel also have experience litigating similar challenges in other jurisdictions and years of experience litigating complex and important cases in Louisiana federal courts.
82. As a result, counsel have undertaken significant efforts toward becoming intimately familiar with the Defendants’ scheme and with all of the relevant state and federal laws and procedures than can and should govern it. The interests of the members of the Class will be fairly and adequately protected by the named Plaintiff and his attorneys.
E. Rule 23(b)(2). 83. Class action status is appropriate because Defendants, through the policies, practices, and procedures that make up their post-arrest money-based release and detention scheme, act in the same unconstitutional manner with respect to all class members. Defendants have created and applied a scheme of post-arrest detention and release procedures that requires presumptively innocent arrestees to pay a bond to a commercial surety to secure their release. Defendants release those who can pay and detains those who cannot, without considering alternative non-financial conditions of release or conducting the constitutionally required inquiry into ability to pay. 84. The Class therefore seeks declaratory relief as to Defendants’ policies, practices, and procedures, which are unconstitutional in materially the same way for every class member. Because the putative Class challenges Defendants’ scheme as unconstitutional through declaratory relief that would apply the same relief to every member of the Class, Rule 23(b)(2) certification is appropriate and necessary.
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Claims Count One: Defendants’ Policies and Practices Violate Plaintiff’s Rights By Jailing Him Solely Because They Cannot Afford a Money Payment Without an Inquiry Into and Findings Concerning Their Ability to Pay or Non-Financial Alternative Conditions of Release. 85. Plaintiff incorporates by reference the allegations in paragraphs 1–84. 86. The Fourteenth Amendment’s Due Process and Equal Protection Clauses have long prohibited keeping a person in jail solely because of the person’s inability to make a monetary payment. Defendants violate Plaintiff’s fundamental rights by keeping him in jail after arrest when he cannot afford to pay the amount of money set by Defendants without an inquiry into and findings concerning their ability to pay or alternative non-financial conditions of release. Pretrial detention, whether transparent or de facto through unattainable conditions of release, requires a finding that pretrial detention is necessary because alternatives are insufficient to serve the government’s compelling interests. Due process further requires that this substantive finding be made pursuant to robust procedural safeguards, including notice, an opportunity to be heard and to confront evidence, counsel, and findings on the record by clear and convincing evidence explaining the evidence relief on to find that pretrial detention is necessary. Count Two: Defendants’ Institutional Financial Conflict of Interest in the Imposition of Secured Financial Conditions of Release Violates Due Process 87. The Due Process Clause ensures the fundamental neutrality of American judicial proceedings. Defendant Judges’ dual role as judge determining conditions of pretrial release and as executives in charge of managing the Court’s finances that are significantly affected by these judicial decisions creates an institutional conflict of interest that deprives Plaintiffs of their right to a neutral tribunal. In Defendants’ courtrooms, Defendants impose these secured financial conditions of release that Defendants know will result in their collecting and controlling 1.8% of
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the bond amount into a fund that they manage. This creates an intolerable judicial financial conflict of interest and results in a proceeding that lacks the basic neutrality required in American law.
Prayer for Relief WHEREFORE, Plaintiff and the other Class members request that this Court issue the following relief: a. A declaratory judgment that the Defendants violate the named Plaintiff’s and Class
members’ constitutional rights by jailing Plaintiff and Class members and keeping them in jail solely because they are poor and cannot afford to pay an amount of money to secure release without a finding that this wealth-based pretrial detention is necessary and without providing the procedural safeguards required by due process to ensure the accuracy of that finding. b. A declaratory judgment that Defendants have a conflict of interest that violates the Due Process rights of class members appearing before them where they impose secured financial conditions of pretrial release and control the fund into which fees based on those conditions are placed.
Respectfully submitted,
/s/ Eric A. Foley Eric A. Foley, La. Bar No. 34199, T.A. James W. Craig, La. Bar No. 33687 Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, La 70119 (504) 620-2259 (p) (504) 208-3133 (f) eric.foley@macarthurjustice.org jim.craig@macarthurjustice.org
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Case 2:19-cv-13553-EEF-MBN Document 1 Filed 11/11/19 Page 21 of 21 /s/ Alec Karakatsanis Alec Karakatsanis, D.C. Bar No. 999294 (pro hac vice application pending) Civil Rights Corps 1601 Connecticut Avenue, Suite 800 Washington, DC 20009 (202) 681-2409 alec@civilrightscorps.org Counsel for Plaintiff
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