U.S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:20-cv-01455-CJB-DMD

Meade v. Bonin et al Assigned to: Judge Carl Barbier Referred to: Magistrate Judge Dana Douglas Cause: 42:1983 Civil Rights Act

Date Filed: 05/14/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Hakeem Meade on behalf of himself and all others similarly situated

represented by William Brock Most Law Office of William Most 201 St. Charles Ave. Suite 114 #101 New Orleans, LA 70170 504-509-5023 Email: williammost@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jaba Tsitsuashvili Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 703-682-9320 Fax: 703-682-9321 Email: jtsitsuashvili@ij.org PRO HAC VICE ATTORNEY TO BE NOTICED

William R. Maurer Institute for Justice - WA State 600 University Street Ste 1730 Seattle, WA 98101 206-957-1300 Fax: 206-957-1301 Email: wmaurer@ij.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff

Marshall Sookram
V. Defendant Paul A Bonin Judge of the Orleans Parish Criminal District Court TERMINATED: 08/23/2020

represented by William R. Maurer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
William Brock Most (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jaba Tsitsuashvili (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by James M. Garner Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC 909 Poydras St. 28th Floor Suite 2800 New Orleans, LA 70112-1033 504-299-2100 Email: jgarner@shergarner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon William Keay Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC 909 Poydras St. 28th Floor Suite 2800 New Orleans, LA 70112-1033 504-214-8461 Fax: 504-299-2340 Email: bkeay@shergarner.com ATTORNEY TO BE NOTICED
David A. Marcello Sher, Garner, Cahill, Richter, Klein

Defendant ETOH Monitoring, LLC

& Hilbert, LLC 909 Poydras St. 28th Floor Suite 2800 New Orleans, LA 70112-1033 504-299-2136 Email: dmarcello@shergarner.com ATTORNEY TO BE NOTICED
Joshua Simon Force Sher, Garner, Cahill, Richter, Klein & Hilbert, LLC 909 Poydras St. 28th Floor Suite 2800 New Orleans, LA 70112-1033 504-299-2100 Email: jforce@shergarner.com ATTORNEY TO BE NOTICED
represented by Leonard Louis Levenson Leonard L. Levenson & Associates 650 Poydras Street Suite 2750 New Orleans, LA 70130 504-586-0066 Fax: 504-586-0079 Email: lenlawyer@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christian Wayne Helmke Leonard L. Levenson & Associates 650 Poydras Street Suite 2750 New Orleans, LA 70130 504-586-0066 Fax: 504-586-0079 Email: cwhelmke@gmail.com ATTORNEY TO BE NOTICED
Donna R. Barrios Leonard L. Levenson & Associates 650 Poydras Street Suite 2750

Date Filed 05/14/2020
05/14/2020
05/14/2020
05/15/2020 05/15/2020 05/15/2020 05/27/2020

New Orleans, LA 70130 504-586-0066 Fax: 504-586-0079 Email: dbarrios@bellsouth.net ATTORNEY TO BE NOTICED

# Docket Text

1 COMPLAINT against Paul A. Bonin, ETOH Monitoring, LLC (Filing fee $ 400 receipt number ALAEDC-8304166) filed by Hakeem Meade. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for Paul A. Bonin, # 3 Summons for ETOH Monitoring, LLC)Attorney William Brock Most added to party Hakeem Meade(pty:pla).(Most, William) (Entered: 05/14/2020)

2 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice for William R. Maurer (Filing fee $ 100 receipt number ALAEDC-8304169) by Hakeem Meade. (Attachments: # 1 Proposed Order, # 2 Declaration in Support, # 3 Certificate of Good Standing, # 4 Consent to Electronic Filing)(Most, William) (Entered: 05/14/2020)

3 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice for Jaba Tsitsuashvili (Filing fee $ 100 receipt number ALAEDC8304170) by Hakeem Meade. (Attachments: # 1 Proposed Order, # 2 Declaration, # 3 Certificate of Good Standing, # 4 Consent to Electronic Filing)(Most, William) (Entered: 05/14/2020)

4 Initial Case Assignment to Judge Carl Barbier and Magistrate Judge Dana Douglas. (aj) (Entered: 05/15/2020)

5 Summons Issued as to Paul A. Bonin, ETOH Monitoring, LLC. (Attachments: # 1 Summons)(pp) (Entered: 05/15/2020)

6 ORDER granting 2 and 3 Motions to Appear Pro Hac Vice as to William R. Maurer and Jaba Tsitsuashvili for the plaintiff. Signed by Judge Carl Barbier on 5/15/20. # 1 Pro Hac Vice Notice) (cg). (Entered: 05/15/2020)

First AMENDED COMPLAINT for Declaratory and

7

Injunctive Relief against All Defendants filed by Hakeem

Meade, Marshall Sookram.Attorney William R. Maurer added

to party Marshall Sookram(pty:pla).(Maurer, William)

(Entered: 05/27/2020)

06/10/2020 06/13/2020 07/14/2020
07/14/2020 07/14/2020
07/14/2020 07/15/2020 07/15/2020 07/15/2020

8 WAIVER OF SERVICE Returned Executed; waiver sent to ETOH Monitoring, LLC on 5/15/2020, answer due 7/14/2020. (Maurer, William) (Entered: 06/10/2020)
9 WAIVER OF SERVICE Returned Executed; waiver sent to Paul A Bonin on 5/15/2020, answer due 7/14/2020. (Maurer, William) (Entered: 06/13/2020)
10 MOTION to Dismiss For Lack of Subject Matter Jurisdiction Pursuant to Rule 12(B)(1) by Paul A Bonin. Motion(s) will be submitted on 8/12/2020. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Request for Oral Argument)Attorney Joshua Simon Force added to party Paul A Bonin(pty:dft).(Force, Joshua) (Entered: 07/14/2020)
11 MOTION to Dismiss for Failure to State a Claim Pursuant to Rule 12(b)(6) by Paul A Bonin. Motion(s) will be submitted on 8/12/2020. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Request for Oral Argument)(Force, Joshua) (Entered: 07/14/2020)
12 MOTION to Dismiss for Failure to State a Claim by ETOH Monitoring, LLC. Motion(s) will be submitted on 8/12/2020.
(Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)Attorney Leonard Louis Levenson added to party ETOH Monitoring, LLC(pty:dft).(Levenson, Leonard) (Entered: 07/14/2020)
13 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by ETOH Monitoring, LLC. (Attachments: # 1 Proposed Order)Attorney Christian Wayne Helmke added to party ETOH Monitoring, LLC(pty:dft).(Helmke, Christian) (Entered: 07/14/2020)
14 Request/Statement of Oral Argument by Paul A Bonin regarding 10 MOTION to Dismiss For Lack of Subject Matter Jurisdiction Pursuant to Rule 12(B)(1). (cg) (Entered: 07/15/2020)
15 Request/Statement of Oral Argument by Paul A Bonin regarding 11 MOTION to Dismiss for Failure to State a Claim Pursuant to Rule 12(b)(6). (cg) (Entered: 07/15/2020)
16 Correction of Docket Entry by Clerk re 11 MOTION to Dismiss for Failure to State a Claim Pursuant to Rule 12(b)(6), 10 MOTION to Dismiss For Lack of Subject Matter

07/15/2020 07/15/2020 07/22/2020 07/23/2020
08/06/2020 08/11/2020 08/18/2020 08/18/2020

Jurisdiction Pursuant to Rule 12(B)(1); For future reference, "Request for Oral Argument" must be a separate entry. Clerk took correct action. (cg) (Entered: 07/15/2020)
17 Request/Statement of Oral Argument by ETOH Monitoring, LLC regarding 12 MOTION to Dismiss for Failure to State a Claim (Levenson, Leonard) (Entered: 07/15/2020)
18 ORDER granting 13 Motion to Enroll as Counsel of Record for Attorney Christian Wayne Helmke for ETOH Monitoring, LLC. Signed by Judge Carl Barbier on 7/15/2020. (cwa) (Entered: 07/15/2020)
19 EXPARTE/CONSENT MOTION to Continue and Reset Submission Date for Defendants' Pending Motions to Dismiss by Hakeem Meade, Marshall Sookram. (Attachments: # 1 Proposed Order)(Maurer, William) (Entered: 07/22/2020)
20 ORDER granting 19 MOTION to Continue. The submission date for Defendants' pending Motions to Dismiss (Rec. Docs. 10, 11, 12) is CONTINUED to August 26, 2020. IT IS FURTHER ORDERED that oral argument on Defendants' Motions to Dismiss is CONTINUED to August 26, 2020, at 9:30 a.m. Signed by Judge Carl Barbier on 7/23/20.(cg) (Entered: 07/23/2020)
21 EXPARTE/CONSENT MOTION for Extension of Time to File Motion for Class Certification by Hakeem Meade, Marshall Sookram. (Attachments: # 1 Proposed Order)(Maurer, William) (Entered: 08/06/2020)
22 ORDER granting 21 Motion for Extension of Time to File Motion for Class Certification. Signed by Judge Carl Barbier on 8/11/2020. (cwa) (Entered: 08/11/2020)
23 RESPONSE to Motion filed by All Plaintiffs re 11 MOTION to Dismiss for Failure to State a Claim Pursuant to Rule 12(b)(6), 10 MOTION to Dismiss For Lack of Subject Matter Jurisdiction Pursuant to Rule 12(B)(1) . (Attachments: # 1 Proposed Order)(Tsitsuashvili, Jaba) (Entered: 08/18/2020)
24 RESPONSE to Motion filed by All Plaintiffs re 12 MOTION to Dismiss for Failure to State a Claim . (Tsitsuashvili, Jaba) (Main Document 24 replaced on 8/26/2020) (cg). (Entered: 08/18/2020)

08/23/2020 08/23/2020 08/24/2020
08/24/2020 08/24/2020 08/25/2020 08/25/2020 08/25/2020 08/25/2020

25 EXPARTE/CONSENT MOTION for Leave to File To File Omnibus Reply Brief In Further Support of His Motions to Dismiss by Paul A Bonin. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading Reply Brief)(Force, Joshua) (Entered: 08/23/2020)

26 NOTICE of Voluntary Dismissal Without Prejudice as to Paul A. Bonin by All Plaintiffs. (Tsitsuashvili, Jaba) (Entered: 08/23/2020)

27 ORDER - IT IS ORDERED that oral argument on Defendants' Motions to Dismiss (Rec. Docs. 10-12) set for August 26, 2020, at 9:30 a.m. is CANCELED. The motions will be considered on the briefs unless the Court instructs the parties otherwise. Signed by Judge Carl Barbier on 8/24/20.(cg) (Entered: 08/24/2020)

28 DEFICIENT: Amendment/Supplement to Document by All Plaintiffs re 24 Response to Motion Praecipe (Attachments: # 1 Replacement Page)(Maurer, William) Modified on 8/25/2020 (cg). (Entered: 08/24/2020)

STRICKEN: NOTICE by All Plaintiffs Letter to Court.

29

(Maurer, William) Modified on 8/25/2020 (cg). (Entered:

08/24/2020)

30 Correction of Docket Entry by Clerk re 29 Notice - Letter to Court. Letters are not accepted in the court record and should not be filed into the record. This should be sent directly to Chambers. (cg) (Entered: 08/25/2020)

31 EXPARTE/CONSENT MOTION for Leave to Amend 24 Response to Motion by Hakeem Meade, Marshall Sookram. (Attachments: # 1 Exhibit Proposed Pleading, # 2 Proposed Order)(Maurer, William) Modified event and text on 8/26/2020 (cg). (Entered: 08/25/2020)

32 ORDER - IT IS HEREBY ORDERED that Defendant Paul A. Bonin's pending Motions (Rec. Docs. 10, 11, 25) are DENIED AS MOOT. (See Rec. Doc. 26). Signed by Judge Carl Barbier on 8/25/20. (cg) (Entered: 08/25/2020)

33 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum by ETOH Monitoring, LLC. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Levenson, Leonard) (Entered: 08/25/2020)

08/26/2020 08/26/2020 08/26/2020 08/26/2020 08/26/2020
09/04/2020

34 ORDER granting 31 Motion for Leave to File Amended Response. Signed by Judge Carl Barbier on 8/26/20. (cg) (Entered: 08/26/2020)

35 ORDER granting 33 Motion for Leave to File Reply. Signed by Judge Carl Barbier on 8/26/20. (cg) (Entered: 08/26/2020)

36 REPLY to Response to Motion filed by ETOH Monitoring, LLC re 12 MOTION to Dismiss for Failure to State a Claim . (cg) (Entered: 08/26/2020)

37 FILED IN ERROR-- SEE REC DOC. 24 FOR CORRECTED DOCUMENT---Amendment/Supplement to Document by All Plaintiffs re 24 Response to Motion (Maurer, William) Modified on 8/26/2020 (cg). (Entered: 08/26/2020)

38 Correction of Docket Entry by Clerk re 37 Amendment/Supplement to Document. Filing of this document was not necessary. When the Judge granted the amended document be replaced, the clerk had already replaced the image for Document 24 with the corrected version. Document 24 is now corrected and no further action is needed. (cg) (Entered: 08/26/2020)

ORDER AND REASONS denying 12 Motion to Dismiss for

39

Failure to State a Claim. Signed by Judge Carl Barbier on

9/4/20. (cg) (Entered: 09/04/2020)

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Stafanson 2:20-cv-01455-CJB-DMD 0.50 Not Exempt

 
 Case 2:20-cv-01455-CJB-DMD Document 1 Filed 05/14/20 Page 1 of 19

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

HAKEEM MEADE, on behalf of himself and all others similarly situated,
Plaintiff,
v.
PAUL A. BONIN, Judge of the Orleans Parish Criminal District Court, and ETOH MONITORING, LLC, a Louisiana Limited Liability Company,
Defendants.

No. __________
CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Introduction 1. When judicial officers make decisions concerning the liberty or property of defendants appearing before them, the Fourteenth Amendment to the U.S. Constitution mandates that these decisions be free from bias or the appearance of bias. This requirement means that judicial decisions must be, and must appear to be, based on the pursuit of justice and the protection of the public, and not the personal, financial, political, or institutional interests of the judge or others. In this case, Defendant Judge Paul A. Bonin (“Judge Bonin”), a judge on the Orleans Parish Criminal District Court, required defendants in his court to wear ankle monitoring devices. This is a routine judicial function. Judge Bonin’s decisions, however, raise serious constitutional problems. He required, steered, or otherwise permitted these defendants to enter into ankle monitoring service agreements with Defendant ETOH Monitoring, LLC (“ETOH”), a private company with which Judge Bonin has long-standing personal, political, and financial ties, and neither Judge Bonin nor ETOH disclosed this information to these defendants. This violated the defendants’ rights under the Due Process Clause of the Fourteenth Amendment. 2. Therefore, Plaintiff Hakeem Meade, on his behalf and on behalf of all others similarly situated, brings this lawsuit to obtain an order from this Court (i) certifying a class of all people
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who have appeared before Judge Bonin and who have been ordered, steered, or permitted by Judge Bonin to enter into a contract or otherwise obtained ankle monitoring services from ETOH since January 1, 2017, (ii) declaring that Judge Bonin and ETOH violate the constitutional rights of defendants when Judge Bonin steers, requires, or permits defendants to obtain ankle monitoring services from ETOH without disclosing his relationship with the company or its principals, (iii) enjoining ETOH from entering into contracts or otherwise providing ankle monitoring services with defendants in cases before Judge Bonin, and (iv) mandating that ETOH disgorge and return to members of the class any fees or funds it collected from class members.
Jurisdiction and Venue 3. This is a civil rights case brought under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. 4. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, 2201, and 2202. 5. Venue is proper in this Court under 28 U.S.C. § 1391.
Parties 6. Hakeem Meade is an adult citizen of the United States and a resident of New Orleans, Louisiana. He brings this class action for declaratory and injunctive relief on behalf of himself and as the putative class representative for all others similarly situated, against both Defendants. Judge Bonin ordered Hakeem to pretrial ankle monitoring by ETOH and required Hakeem to pay hundreds of dollars in pretrial monitoring fees to ETOH, upon threat of pretrial jailing for failure to pay. Hakeem was unaware of any relationship between Judge Bonin and ETOH until around December 2019. Hakeem is not currently party to any state court proceedings and is not on ankle monitoring. ETOH continues to seek payment of fees from Hakeem.
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7. Defendant Paul A. Bonin is a Judge of the Orleans Parish Criminal District Court in New Orleans, Louisiana, elected in 2016. Since 2017, Judge Bonin has ordered individuals accused of crimes appearing before him, including Hakeem, to pretrial ankle monitoring by ETOH, a private company with which Bonin has a personal, professional, political, and financial relationship. Judge Bonin is sued for prospective declaratory relief only.
8. Defendant ETOH Monitoring, LLC is a Louisiana limited liability company domiciled in New Orleans. Its founders and/or managers are Leonard L. Levenson and Christian W. Helmke, residents of Louisiana. ETOH, Levenson and Helmke, and entities controlled by them have personal, professional, financial, and political relationships with Judge Bonin. Since 2017, Judge Bonin has ordered many people, like Hakeem, to pay ankle monitoring fees to ETOH, including under threat of jailing, like Hakeem. ETOH continues to seek payment of fees from Hakeem and others. ETOH’s ankle monitoring is a form of government custody; it is a public function that ETOH performs jointly with Judge Bonin. ETOH is sued for declaratory and injunctive relief, including but not limited to disgorgement of fees.
Factual Allegations Ankle monitoring is a government function.
9. Ankle monitoring is a means of monitoring the actions of a criminal defendant. When a judge orders a defendant to wear an ankle monitor, a government entity or a private company hired by the government places a GPS device on the defendant’s ankle and the device records the defendant’s location. The device allows the entity to determine, among other things, whether a defendant is complying with a curfew or is staying within geographical confines.
10. Nationally, an ankle monitor typically costs the defendant at least $10 a day, along with an installation fee of $100 or more. Judges often require defendants to wear ankle monitors for
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several months. For indigent defendants, wearing an ankle monitor for any length of time can cause severe financial hardships.
11. Unlike some municipalities, New Orleans Parish does not operate its own ankle monitoring service. Instead, when judges on the Orleans Parish Criminal District Court require defendants to sign up for ankle monitoring, the defendants may choose from among three ankle monitoring companies operating in the Parish. One of those companies is ETOH.
12. Ankle monitoring is a significant deprivation of liberty—especially pretrial. 13. When defendants are charged fees for ankle monitoring, it is also a significant deprivation of property. For instance, ETOH charges defendants (for their own governmental oversight) a $100 installation fee plus $10 per day (i.e. between $280 and $310 per month). 14. Because ankle monitoring companies perform public functions (namely, custody and control of criminal defendants through monitoring), their actions implicate the Fourteenth Amendment’s guarantee of due process. Judge Bonin ordered Hakeem to pay pretrial ankle monitoring fees to ETOH. 15. In February 2016, Hakeem survived a horrific shooting. He had paid a local auto shop owner for car repairs. The men had an argument over a delay in the work. The shop owner then chased Hakeem and shot him six times, including in the head. The shop owner also shot Hakeem’s girlfriend of the time, who was pregnant with their twins. She survived, but tragically the twins did not. 16. While Hakeem was still hospitalized and recovering from the attack, he learned that he was being charged with possession of a firearm by a felon and aggravated assault with a firearm—both charges stemming from his own shooting.
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17. After Hakeem turned himself in to police, he was held in pretrial detention for two to three days then released on bond, without ankle monitoring.
18. After being released from pretrial detention, Hakeem appeared in court for more than half a dozen pretrial appearances before multiple judges of the Orleans Parish Criminal District Court—all without ankle monitoring.
19. After about nine months of these unmonitored pretrial appearances, Hakeem was transferred to Judge Bonin’s court in February 2017.
20. From February 2017 to August 2017, Hakeem continued appearing for unmonitored pretrial proceedings before Judge Bonin. He appeared about once a month. Each time, Judge Bonin ordered him to take a drug test, which he always passed.
21. By August 2017, Hakeem had been dutifully appearing for pretrial proceedings without ankle monitoring for over a year—including for about six months with Judge Bonin.
22. In August 2017, Judge Bonin suddenly ordered Hakeem to ankle monitoring at Hakeem’s expense. He told Hakeem to go to ETOH for these services.
23. When Judge Bonin ordered Hakeem to ankle monitoring by ETOH, Hakeem does not recall the judge stating that he was a flight risk or that he posed a threat to public safety.
24. Hakeem did not understand why Judge Bonin was suddenly depriving him of his pretrial liberty and property, after more than a year of incident-free pretrial appearances and drug tests.
25. At the August 2017 hearing at which Judge Bonin ordered Hakeem to ankle monitoring, Judge Bonin gave no explanation for his order.
26. At the August 2017 hearing at which Judge Bonin ordered Hakeem to ankle monitoring Judge Bonin did not disclose any personal, financial, political, or other ties with ETOH or its principals.
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27. Under Judge Bonin’s order, Hakeem was required to submit to ETOH’s custody without delay.
28. Paying ETOH’s fees was a condition of Judge Bonin’s order and nonpayment could result in Hakeem’s pretrial jailing.
29. When Hakeem submitted to ETOH’s custody, an ETOH employee told Hakeem that the company would be sending detailed reports to Judge Bonin—not only regarding his compliance with the geographic and curfew restrictions but also his payment (and nonpayment) of ETOH’s daily fees.
30. Judge Bonin’s order deprived Hakeem of his pretrial liberty by geographic and curfew restrictions, which were enforced by ETOH acting together with Judge Bonin.
31. Judge Bonin’s order also deprived Hakeem of his property for ETOH’s benefit. Acting together with Judge Bonin, ETOH charged Hakeem $10 per day (i.e. $280 to $310 per month) while he was in ETOH’s custody.
32. Even though Hakeem was employed, paying approximately $300 per month was a significant financial burden and deprivation of his property.
33. As a result of Judge Bonin’s order, Hakeem also had to miss work for monitoring checkins with ETOH. These mandatory check-ins and the accompanying lost wages were additional pretrial deprivations of Hakeem’s liberty and property by Judge Bonin and ETOH.
34. The ankle monitoring impacted Hakeem’s employment so significantly that he had to change employers.
35. In October 2017, Hakeem appeared for another pretrial hearing before Judge Bonin. He asked the judge to release him from ankle monitoring, and Judge Bonin agreed.
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36. By the time Judge Bonin released Hakeem from ETOH’s custody in October 2017, Hakeem had accumulated about $600 in ETOH fees. He had not managed to pay in full but continued making payments on the understanding that he might otherwise be put in jail.
37. During at least one subsequent pretrial hearing, Judge Bonin reminded Hakeem that he still owed money to ETOH and that Hakeem’s failure to pay ETOH’s fees could violate his bond conditions. Hakeem understood this as Judge Bonin explicitly conditioning Hakeem’s freedom from pretrial jailing on his ability to pay ETOH.
38. Understanding that his freedom was contingent on paying ETOH, Hakeem continued paying ETOH until June 2018, by which time he had managed to pay about $280 out of $600 he owed.
39. Hakeem stopped paying ETOH’s fees after June 2018 because it became clear to him that he was likely to be sentenced to time in prison, so he began putting all of his non-living-expenses income toward savings for his family and his son.
40. Feeling trapped by his criminal charges, Hakeem pleaded guilty in September 2018 to avoid the risk of twenty years in prison if convicted at trial. Judge Bonin gave Hakeem until the end of the year to get his affairs in order—without ankle monitoring—before sentencing. Hakeem appeared for sentencing early, and in October 2018 Judge Bonin sentenced Hakeem to five years in prison.
41. Hakeem served over eleven months in prison before being released early. He was incarcerated from on or about October 26, 2018, until on or about October 15, 2019.
42. Hakeem is not currently party to any state court proceedings. 43. Hakeem now works in dredging along the Mississippi River and is rebuilding his life.
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44. ETOH is still sending Hakeem collection letters for the $322 in ankle monitoring fees that he was unable to pay before being incarcerated. Judge Bonin has personal, professional, and political relationships with ETOH’s principals.
45. From 2008 to 2016, Judge Bonin was a state appellate judge, elected to serve on the Louisiana Fourth Circuit Court of Appeal.
46. In 2016, he ran for and won election to a lower court: the Orleans Parish Criminal District Court, on which he still serves as one of thirteen criminal trial court judges.
47. Judge Bonin presides over criminal cases, including pretrial, trial, and sentencing proceedings.
48. Before his political and judicial career, one of Bonin’s legal partners for more than a decade was Leonard L. Levenson, a Louisiana licensed attorney.
49. In 2006, Levenson and Christian W. Helmke (also a Louisiana licensed attorney) founded ETOH Monitoring, LLC, a Louisiana limited liability company domiciled in New Orleans.
50. Levenson and Helmke are principals of ETOH. 51. Levenson is the manager of Leonard L. Levenson & Associates, a Louisiana professional law corporation that he founded around 2000. 52. Helmke was the manager of the Law Office of Christian W. Helmke, a Louisiana limited liability company, from 2015 to 2017. 53. On information and belief, Levenson and Helmke are both now employed at Leonard L. Levenson & Associates, PLC, Levenson’s current law office. 54. Between 2005 and 2016, via these eponymous law offices, Levenson and Helmke donated and loaned a total of $9,650 to the three judicial election campaigns of Levenson’s former law partner: Judge Bonin.
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55. Over the course of Judge Bonin’s three judicial election campaigns (2008, 2012, 2016), Levenson and Helmke made seven donations and one loan to Judge Bonin’s campaigns.
56. In 2016 alone—when Judge Bonin first ran for election to the Criminal District Court— Levenson and Helmke made three donations (totaling $3,550) and one loan (of $1,000) to his election campaign.
57. On information and belief, from 2008 to 2016, Levenson and Helmke donated to four other Orleans Parish Criminal District Court judges’ election campaigns as well, but significantly less and significantly less often than to Bonin’s.
58. On information and belief, unlike with Bonin, none of Levenson’s and Helmke’s contributions to these other judges were loans.
59. On information and belief, the other private company that provides ankle monitoring services to the Orleans Parish Criminal District Court does not have personal, professional, or political relationships with Judge Bonin, and has not donated or loaned money to Judge Bonin’s judicial election campaigns. Judge Bonin has made or has appeared to make ankle monitoring decisions—including pretrial jailing decisions—based on the financial interests of ETOH, the private company with which he has personal, professional, financial, and political relationships.
60. In making their election donations and loan to Judge Bonin, Levenson and Helmke do not appear to have violated any laws. Nor does Judge Bonin appear to have violated any laws in accepting the donations and loan.
61. However, neither Judge Bonin nor ETOH has disclosed these donations and this debt directly to the defendants that Judge Bonin orders to ankle monitoring.
62. Moreover, defendants’ ability to pay ETOH’s fees has dictated Judge Bonin’s custody decisions.
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63. These ties and actions bristle with bias and conflicts of interest, or at the very least the appearance thereof. They taint all of Judge Bonin’s ankle monitoring decisions since 2017 in which ETOH entered into contracts with defendants and give rise to the perception that judicial decision-making has been co-opted by the profit motive of a private company with which the judge has a significant relationship.
64. In May, 2019, judicial watchdog organization Court Watch NOLA (CWN)1 issued a report revealing that Judge Bonin “made it a regular practice of recommending defendants use ETOH” and emailing defense attorneys “on how the defendant could sign up for ankle monitoring services,” while including ETOH managers on the emails. CWN found that he also required his staff to “provide the defendant or the defendant’s family members with the contact information for ETOH.”2
65. CWN also found that on “several occasions, Judge Bonin refused to release the defendants from jail until the family had arranged for ETOH to set up ankle monitoring,” and he regularly refused to release defendants from ankle monitoring “solely because the defendants had not paid ETOH all the remaining fees.”3
66. CWN found that Judge Bonin made release from ankle monitoring contingent on “financial obligations owed to the ankle monitoring company.”4 And he “threatened to put defendants back in jail and set bond for their failure to pay their remaining debts.”5
1 CWN, “2018 Review,” at 3, 15-24 & nn.1-4, 52-107, available at https://www.courtwatchnola.org/wp-content/uploads/2018-Annual-Report.pdf. 2 Id. at 21. 3 Id. at 22. 4 Id. 5 Id.
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67. CWN concluded “Judge Bonin was the only judge found to have required a defendant to use an ankle monitor and then steered the defendant to pay a specific ankle monitoring company (over other companies) from which the judge had received campaign contributions or a loan.”6
68. Investigations and public record requests have revealed that at least into 2019, Judge Bonin’s and ETOH’s practices continued—including ordering defendants to ankle monitoring by ETOH (e.g., “I have modified the bail conditions of [defendant] to require his enrollment with your firm at his expense for GPS monitoring”); conditioning release from monitoring on payments to ETOH (e.g., “Mr. [defendant] will be able to have the monitor removed once his balance is paid in full.”); and relying on judicial power to collect fees (e.g., “We ask that he be reminded of his continuing obligation to make payments to our company.”).
69. On at least one occasion in 2019, ETOH emailed Judge Bonin when a defendant that the company was expecting did not show up, prompting Judge Bonin to threaten the defendant’s immediate arrest—until the defendant’s attorney alerted Judge Bonin that the defendant had complied with Judge Bonin’s ankle monitoring order, but had simply done so with a different company.
70. To this day, ETOH also continues to pursue people for the collection of outstanding fees accumulated as part of the judge’s and the company’s practices, including Hakeem, and at least one person who never appeared before Judge Bonin, but whose ex-boyfriend was ordered to ankle monitoring with ETOH by Judge Bonin in 2018.
71. As of the date of this complaint, and on information and belief, neither Judge Bonin nor ETOH have directly disclosed their ties to the members of the putative class.
6 Id. at 19. 11

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Class Action Allegations 72. Since 2017, Judge Bonin has ordered defendants to pay fees for their own governmental custody to a private party in which the judge has various interests, with neither the judge nor the company disclosing those interests or the availability of alternative providers. 73. Accordingly, Hakeem respectfully seeks certification of the following class under Fed. R. Civ. P. 23(b)(2) (“Rule 23(b)(2)”):
Every individual who, since January 1, 2017, has been or will be ordered, steered, or permitted by Judge Bonin to contract for or otherwise receive or pay for ankle monitoring services by ETOH. 74. This case satisfies the requirements for certification of a class under Fed. R. Civ. P. 23(a) (“Rule 23(a)”). 75. Numerosity under Rule 23(a)(1): The putative class is so numerous that joinder of all members is impracticable. There are at least 52 potential class members who have been ordered, steered, or otherwise permitted to contract for or otherwise receive ankle monitoring services with ETOH while appearing before Judge Bonin. 76. Commonality under Rule 23(a)(2): There are questions of law and fact common to the class, namely, whether it violates the Due Process Clause of the Fourteenth Amendment for a judge to order, steer, or otherwise permit defendants appearing before him to enter into ankle monitoring service agreements with a company with which the judge has personal, financial, and political ties. 77. Typicality under Rule 23(a)(3): The claims of the representative party are typical of the claims of the class as a whole in that Hakeem has suffered the same constitutional violations as the other members of the class.
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78. Adequacy of representation under Rule 23(a)(4): Hakeem will fairly and adequately protect the interests of the class he seeks to represent. Hakeem is a member of the proposed class and his interests are aligned with the interests of putative class members. Hakeem’s interest is seeking to end violation of defendants’ due process rights by Judge Bonin and ETOH. Hakeem seeks declaratory and injunctive relief for the injury caused by these practices. These interests are shared by all class members.
79. Named Plaintiff is represented pro bono by the Institute for Justice and by the Law Office of William Most, L.L.C. The Institute is a 501(c)(3) non-profit organization with experience litigating class-action lawsuits around the country, including civil-rights cases involving similar due process claims litigated in federal court in Chicago, Illinois; Philadelphia, Pennsylvania; and Pagedale, Missouri.
80. The Law Office of William Most, L.L.C. is a law firm based in New Orleans, with experience litigating class-action lawsuits around the country, including a civil rights class-action case under the Fourteenth Amendment in federal court in Louisiana.
81. The representative party and his counsel will fairly and adequately protect the interests of the class.
82. The members of the class are readily and objectively ascertainable because the Orleans Parish Criminal District Court, Judge Bonin’s chambers, and ETOH maintain records of every individual who, since January 1, 2017, has been or will be ordered to ankle monitoring by Judge Bonin and has paid, will pay, has incurred, or will incur fees for ankle monitoring by ETOH, and in what amounts.
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83. Class certification is appropriate under Rule 23(b)(2) because Judge Bonin and ETOH have acted or refused to act on grounds and in ways that apply generally to the class, so that declaratory and injunctive relief are appropriate respecting the class as a whole.
84. Namely, Judge Bonin and ETOH have required, steered, or otherwise permitted defendants to pay ankle monitoring fees to a company in which Judge Bonin has personal, professional, financial, and political interests, without disclosure of these interests or of alternative options, and they have conditioned custody determinations on the ability to pay those fees, thus creating a custodial system fraught with bias or the appearance of bias.
85. A declaration that deprivations of liberty and property pursuant to these practices violate due process because they create bias or the appearance of bias will provide relief for the class as a whole. So, too, will an injunction requiring ETOH to return with interest the fees it has collected since January 1, 2017, and cancel any outstanding fees.
86. For these reasons, a class action is superior to other available methods for the fair and efficient adjudication of this controversy, and to avoid inconsistent outcomes. Individual challenges to Judge Bonin’s and ETOH’s practices are impracticable, in part because Judge Bonin’s and ETOH’s practices remain almost entirely undisclosed to those affected by them, and, in any event, the costs associated with bringing individual challenges would almost certainly be prohibitive of a full and fair process for vindicating individuals’ constitutional rights. A class action will allow for effective, class-wide relief to remedy Judge Bonin’s and ETOH’s unconstitutional practices.
87. Injunctive relief for the return of the class’s property as a whole is appropriate and does not require individualized determinations of entitlement to relief, but rather only the ministerial act of restoring to each person the amount he or she paid, as documented in Defendants’
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regularly maintained records, plus a class-wide percentage of interest that also requires no individualized determinations of entitlement.
Causes of Action Count 1
Class Claim Under 42 U.S.C. § 1983 – Fourteenth Amendment Due Process (Both Defendants for Class-Wide Declaratory Relief)
88. Plaintiff re-alleges and incorporates by reference each and every allegation above. 89. Plaintiff brings this claim against both Defendants on behalf of himself and the class, for class-wide declaratory relief. 90. The Due Process Clause of the Fourteenth Amendment applies to private actors in joint activity with state actors or performing public functions, as is ETOH here. 91. The Due Process Clause of the Fourteenth Amendment secures the fundamental right to neutrality in judicial decision-making. It prohibits even the appearance of self-interest or bias. A showing of actual influence is not required. 92. These principles apply to decisions by a judge that benefit or may appear to benefit his or her own personal, financial, professional, institutional, or political interest. 93. These principles also apply to decisions by a judge that benefit or may appear to benefit a third party in which the judge has a personal, financial, professional, institutional, or political interest. 94. Judge Bonin’s and ETOH’s practice of requiring criminal defendants to pay ankle monitoring fees to ETOH—a company in which the judge has personal, financial, professional, and political interests—and their practice of tying custody determinations to the payment of those fees to ETOH are unconstitutional because they demonstrate judicial bias and conflicts of interest in violation of due process.
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Count 2 Class Claim Under 42 U.S.C. § 1983 – Fourteenth Amendment Due Process
(Defendant ETOH Monitoring, LLC for Class-Wide Injunctive Relief)

95. Plaintiff re-alleges and incorporates by reference each and every allegation above.

96. Plaintiff brings this claim against Defendant ETOH Monitoring, LLC on behalf of

himself and the class, for class-wide injunctive relief.

97. The Due Process Clause of the Fourteenth Amendment applies to private actors in joint

activity with state actors or performing public functions, as is ETOH here.

98. The Due Process Clause of the Fourteenth Amendment secures the fundamental right to

neutrality in judicial decision-making. It prohibits even the appearance of self-interest or bias. A

showing of actual influence is not required.

99. These principles apply to decisions by a judge that benefit or may appear to benefit his or

her own personal, financial, professional, institutional, or political interest.

100.

These principles also apply to decisions by a judge that benefit or may appear to

benefit a third party in which the judge has a personal, financial, professional, institutional, or

political interest.

101.

Judge Bonin’s and ETOH’s practice of requiring criminal defendants to pay ankle

monitoring fees to ETOH—a company in which the judge has personal, financial, professional,

and political interests—and their practice of tying custody determinations to the payment of

those fees to ETOH are unconstitutional because they demonstrate judicial bias and conflicts of

interest in violation of due process.

102.

This Court should issue an order enjoining ETOH from engaging in these

unconstitutional practices.

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103.

This Court should issue an order enjoining ETOH from collecting outstanding

fees incurred by the class pursuant to these unconstitutional practices, and from assessing future

fees against the class pursuant to these unconstitutional practices.

104.

This Court should issue a mandatory injunction requiring ETOH to return to the

members of the class the fees it has collected from such members since January 1, 2017, with

interest, and to cancel any outstanding fees owed by the class.

Request for Relief

Wherefore, Plaintiff respectfully requests that this Court:

A. Certify a class under Federal Rule of Civil Procedure 23(b)(2) consisting of: “Every

individual who, since January 1, 2017, has been or will be ordered, steered, or permitted by

Judge Bonin to contract for or otherwise receive or pay for ankle monitoring services by ETOH.”

B. Issue a class-wide order declaring that, absent full disclosure by Judge Bonin and ETOH

directly to defendants appearing before Judge Bonin of Judge Bonin’s and ETOH’s personal,

financial, professional, and political relationships and of the availability of the alternative ankle

monitoring providers, and the defendants’ knowing and voluntary consent, it is unconstitutional

under the Due Process Clause of the Fourteenth Amendment for Judge Bonin to require, steer, or

otherwise permit criminal defendants appearing before him to pay ankle monitoring fees to

ETOH, a company in which the judge has personal, financial, professional, and political

interests.

C. Issue a permanent class-wide injunction preventing ETOH from entering into contracts,

or otherwise agreeing to provide for a fee, ankle monitoring services with defendants appearing

before Judge Bonin absent full disclosure by Judge Bonin and ETOH directly to defendants

appearing before Judge Bonin of Judge Bonin’s and ETOH’s personal, financial, professional,

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D. Issue a permanent class-wide injunction against ETOH’s collection of outstanding fees incurred by the class, and against assessment of future fees to the class.
E. Issue a permanent class-wide injunction requiring ETOH to disgorge and return to the members of the class the fees it has collected since January 1, 2017, with interest, and to cancel any outstanding fees owed by the class.
F. Award Plaintiff his attorney fees, costs, and expenses under 42 U.S.C. § 1988 and any other applicable provisions of law or equity.
G. Award Plaintiff any further equitable or legal relief the Court may deem just and proper.
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Dated: May 14, 2020

Respectfully Submitted,
/s/ William Most William Most (LA Bar No. 36914) LAW OFFICE OF WILLIAM MOST, L.L.C. 201 St. Charles Ave., Ste. 114, # 101 New Orleans, LA 70170 (504) 509-5023 williammost@gmail.com
William R. Maurer (WA Bar No. 25451)* INSTITUTE FOR JUSTICE 600 University Street, Suite 1730 Seattle, WA 98101 (206) 957-1300 wmaurer@ij.org
Jaba Tsitsuashvili (DC Bar No. 1601246)* INSTITUTE FOR JUSTICE 901 North Glebe Road, Suite 900 Arlington, VA 22203 (703) 682-9320 jtsitsuashvili@ij.org
* Pro hac vice application forthcoming

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 Case 2:20-cv-01455-CJB-DMD Document 7 Filed 05/27/20 Page 1 of 26

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

HAKEEM MEADE and MARSHALL SOOKRAM, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
PAUL A. BONIN, Judge of the Orleans Parish Criminal District Court, and ETOH MONITORING, LLC, a Louisiana Limited Liability Company,
Defendants.

No. 2:20-cv-01455
FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Introduction 1. When judges make decisions affecting the liberty or property of defendants appearing before them, the Fourteenth Amendment requires these decisions to be free from bias or the appearance of bias. This means that judicial decisions must be, and must appear to be, based on the pursuit of justice and the protection of the public, and not on the personal, financial, professional, political, or institutional interests of the judge or others. In this case, Defendant Judge Paul A. Bonin (“Judge Bonin”), a judge on the Orleans Parish Criminal District Court, requires defendants in his court to wear ankle monitoring devices. This is a routine judicial function. Judge Bonin’s decisions, however, raise serious constitutional problems. He required, steered, or otherwise permitted these defendants to enter into ankle monitoring service agreements with and pay significant fees to Defendant ETOH Monitoring, LLC (“ETOH”)—a private company with which Judge Bonin has long-standing personal, financial, professional, and political ties—and neither Judge Bonin nor ETOH disclosed those ties to these defendants. This violated the defendants’ rights under the Due Process Clause of the Fourteenth Amendment.

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2. Therefore, Plaintiffs Hakeem Meade and Marshall Sookram, on their behalf and on behalf of all others similarly situated, seek an order from this Court (i) certifying a class of all people who have appeared before Judge Bonin and who have been ordered, steered, or permitted by Judge Bonin to enter into a contract or otherwise obtain or pay for ankle monitoring services from ETOH since January 1, 2017, (ii) declaring that Judge Bonin and ETOH violate the constitutional rights of defendants when Judge Bonin orders, steers, or permits defendants to obtain and pay for ankle monitoring services from ETOH without disclosing his relationship with the company or its principals, (iii) enjoining ETOH from entering into contracts with or otherwise providing ankle monitoring services to defendants in cases before Judge Bonin without disclosing his relationship with the company or its principals, and (iv) mandating that ETOH disgorge and return to members of the class any fees or funds it collected from class members and cancel any pending or outstanding fees due from class members.
Jurisdiction and Venue 3. This is a civil rights case brought under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. 4. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343, 2201, and 2202. 5. Venue is proper in this Court under 28 U.S.C. § 1391.
Parties 6. Hakeem Meade is an adult citizen of the United States and a resident of New Orleans, Louisiana. He brings this class action for declaratory and injunctive relief on behalf of himself and as the putative class representative for all others similarly situated, against both Defendants. Judge Bonin ordered Hakeem to pretrial ankle monitoring by ETOH and required Hakeem to pay hundreds of dollars in pretrial monitoring fees to ETOH, upon threat of pretrial jailing for failure
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to pay. Hakeem was unaware of any relationship between Judge Bonin and ETOH until around December 2019. Hakeem is not currently party to any state court proceedings and is not on ankle monitoring. ETOH continues to seek payment of fees from Hakeem.
7. Marshall Sookram is an adult citizen of the United States and a resident of River Ridge, Louisiana. He brings this class action for declaratory and injunctive relief on behalf of himself and as the putative class representative for all others similarly situated, against both Defendants. Judge Bonin ordered Marshall to pretrial ankle monitoring and required Marshall to pay well over $1,000 in pretrial ankle monitoring fees to ETOH. Judge Bonin conditioned Marshall’s release from ankle monitoring on his payment of ETOH’s fees. Marshall was unaware of any relationship between Judge Bonin and ETOH until around March 2020. Marshall is not currently party to any state court proceedings and is not on ankle monitoring.
8. Defendant Paul A. Bonin is a Judge of the Orleans Parish Criminal District Court in New Orleans, Louisiana, elected in December 2016. Since 2017, Judge Bonin has ordered or steered individuals accused of crimes appearing before him, including Hakeem and Marshall, to pretrial ankle monitoring by ETOH, a private company with which Bonin has a personal, financial, professional, and political relationship. Judge Bonin is sued for declaratory relief only.
9. Defendant ETOH Monitoring, LLC is a Louisiana limited liability company domiciled in New Orleans. Its founders and/or managers are Leonard L. Levenson and Christian W. Helmke, residents of Louisiana. ETOH, Levenson and Helmke, and entities controlled by them have personal, financial, professional, and political relationships with Judge Bonin. Since 2017, Judge Bonin has ordered or steered many people, like Hakeem and Marshall, to pay ankle monitoring fees to ETOH—including under threat of jailing, like Hakeem, and as a condition of their release from custody, like Marshall. ETOH continues to seek payment of fees from Hakeem and others.
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ETOH’s ankle monitoring is a form of governmental custody; it is a public function that ETOH performs jointly with Judge Bonin. ETOH is sued for declaratory and injunctive relief, including but not limited to disgorgement and cancelation of the class’s outstanding fees.
Factual Allegations Ankle monitoring is a government function.
10. Ankle monitoring is a means of monitoring the actions of a criminal defendant. When a judge orders a defendant to wear an ankle monitor, a government entity or a private company working with the government places a GPS device on the defendant’s ankle and the device records the defendant’s location. The device allows the monitoring entity to determine, among other things, whether a defendant is complying with a curfew or is staying within geographical confines.
11. Nationally, an ankle monitor typically costs the defendant at least $10 a day, along with an installation fee of $50 to $100 or more. Judges often require defendants to wear ankle monitors for several months. For indigent defendants, wearing an ankle monitor for any length of time can cause severe financial hardships.
12. Unlike some municipal courts, the Orleans Parish Criminal District Court does not operate its own ankle monitoring service. Instead, when judges on the Orleans Parish Criminal District Court require defendants to sign up for ankle monitoring, the defendants may choose from among three ankle monitoring providers operating in the Parish. One of those providers is ETOH.
13. Ankle monitoring is a form of governmental custody and a significant deprivation of liberty—especially pretrial.
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14. When defendants are charged fees for ankle monitoring, it is also a significant deprivation of property. For instance, ETOH charges defendants (for their own governmental oversight) a $100 installation fee plus $8.50 to $10 per day (i.e. between $238 and $310 per month).
15. Because ankle monitoring companies perform public functions (namely, custody and control of criminal defendants through monitoring and reporting), their actions implicate the Fourteenth Amendment’s guarantee of due process. Judge Bonin ordered Hakeem to pay pretrial ankle monitoring fees to ETOH.
16. In February 2016, Hakeem survived a horrific shooting. He had paid a local auto shop owner for car repairs. The men had an argument over a delay in the work. The shop owner then chased Hakeem and shot him six times, including in the head. The shop owner also shot Hakeem’s girlfriend of the time, who was pregnant with their twins. She survived, but tragically the twins did not.
17. While Hakeem was still hospitalized and recovering from the attack, he learned that he was being charged with possession of a firearm by a person with a felony conviction and aggravated assault with a firearm—both charges stemming from his own shooting.
18. After Hakeem turned himself in to police, he was held in pretrial detention for two to three days then released on bond, without ankle monitoring.
19. After being released from pretrial detention, Hakeem appeared in court for more than half a dozen pretrial appearances before multiple judges of the Orleans Parish Criminal District Court—all without ankle monitoring.
20. After about nine months of these unmonitored pretrial appearances, Hakeem was transferred to Judge Bonin’s court in February 2017.
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21. From February 2017 to August 2017, Hakeem continued appearing for unmonitored pretrial proceedings before Judge Bonin. He appeared about once a month. Judge Bonin ordered him to take drug tests, which he always passed.
22. By August 2017, Hakeem had been dutifully appearing for pretrial proceedings without ankle monitoring for over a year—including for about six months with Judge Bonin.
23. In August 2017, Judge Bonin suddenly ordered Hakeem to ankle monitoring at Hakeem’s expense. He told Hakeem to go to ETOH for these services.
24. When Judge Bonin ordered Hakeem to ankle monitoring by ETOH, Hakeem does not recall the judge stating that he was a flight risk or that he posed a threat to public safety.
25. Hakeem did not understand why Judge Bonin was suddenly depriving him of his pretrial liberty and property, after more than a year of incident-free pretrial appearances and drug tests.
26. At the August 2017 hearing at which Judge Bonin ordered Hakeem to ankle monitoring, Judge Bonin gave no explanation for his order.
27. At the August 2017 hearing at which Judge Bonin ordered Hakeem to ankle monitoring, Judge Bonin did not disclose any of his personal, financial, professional, political, or other ties with ETOH or its principals.
28. Under Judge Bonin’s order, Hakeem was required to submit to ETOH’s custody without delay.
29. Paying ETOH’s fees was a condition of Judge Bonin’s order, and nonpayment could result in Hakeem’s pretrial jailing.
30. When Hakeem submitted to ETOH’s custody, an ETOH employee told Hakeem that the company would be sending detailed reports to Judge Bonin—not only regarding his compliance
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with the geographic and curfew restrictions, but also his payment (or nonpayment) of ETOH’s daily fees.
31. Judge Bonin’s order deprived Hakeem of his pretrial liberty by geographic and curfew restrictions, which were enforced by ETOH acting together with Judge Bonin.
32. Judge Bonin’s order also deprived Hakeem of his property for ETOH’s benefit. Acting together with Judge Bonin, ETOH charged Hakeem $10 per day (i.e. $280 to $310 per month) while he was in ETOH’s custody.
33. Even though Hakeem was employed, paying approximately $300 per month was a significant financial burden and deprivation of his property.
34. As a result of Judge Bonin’s order, Hakeem also had to miss work for monitoring checkins with ETOH. These mandatory check-ins and the accompanying lost wages were additional pretrial deprivations of Hakeem’s liberty and property by Judge Bonin and ETOH.
35. The ankle monitoring impacted Hakeem’s employment so significantly that he had to change employers.
36. In October 2017, Hakeem appeared for another pretrial hearing before Judge Bonin. He asked the judge to release him from ankle monitoring, and Judge Bonin agreed.
37. By the time Judge Bonin released Hakeem from ETOH’s custody in October 2017, Hakeem had accumulated about $600 in ETOH fees. He had not managed to pay in full but continued making payments on the understanding that he might otherwise be jailed by Judge Bonin.
38. During at least one subsequent pretrial hearing, Judge Bonin reminded Hakeem that he still owed money to ETOH and that Hakeem’s failure to pay ETOH could violate his bond
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conditions. Hakeem understood this as Judge Bonin explicitly conditioning Hakeem’s freedom from pretrial jailing on his ability to pay ETOH.
39. Understanding that his freedom was contingent on paying ETOH, Hakeem continued paying ETOH until June 2018, by which time he had managed to pay about $280 out of about $600 he owed.
40. Hakeem stopped paying ETOH’s fees after June 2018 because it became clear to him that he was likely to be sentenced to time in prison, so he began putting all of his non-living-expenses income toward savings for his family and his son.
41. Feeling trapped by his criminal charges, Hakeem pleaded guilty in September 2018 to avoid the risk of twenty years in prison if convicted at trial. Judge Bonin gave Hakeem until the end of the year to get his affairs in order—without ankle monitoring—before sentencing. Hakeem appeared for sentencing early, and in October 2018 Judge Bonin sentenced Hakeem to five years in prison.
42. Hakeem served over eleven months in prison before being released early. He was incarcerated from on or about October 26, 2018, until on or about October 15, 2019.
43. Hakeem is not currently party to any state court proceedings. 44. Hakeem now works in dredging along the Mississippi River and is rebuilding his life. 45. ETOH is still sending Hakeem collection letters for the approximately $322 in ankle monitoring fees that he was unable to pay before being incarcerated. Judge Bonin conditioned Marshall’s release from ankle monitoring on full payment of ETOH’s fees. 46. In September 2017, Marshall was charged with three crimes in Orleans Parish Criminal District Court: simple criminal damage, possession of a weapon by a person with a felony conviction, and aggravated assault with a firearm. He contested the allegations.
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47. Marshall was briefly held in pretrial detention. On or about September 3, 2017, he was released on bond by a magistrate judge, without ankle monitoring.
48. More than a month later, on October 13, 2017, Marshall appeared for arraignment before Judge Bonin. Judge Bonin ordered Marshall to ankle monitoring that day. Judge Bonin asked for Marshall’s public defender’s email address, which was consistent with Judge Bonin’s practice of emailing attorneys the instructions for their clients to sign up for ankle monitoring with ETOH.
49. Marshall did not directly receive instructions for signing up with ETOH. Instead, a bondsman signed Marshall up with another company. That company charged Marshall a $50 installation fee and $10 per day of monitoring.
50. Marshall then appeared for at least two more pretrial hearings before Judge Bonin—in October and December 2017—without incident.
51. On February 23, 2018, Marshall’s attorney told Judge Bonin that Marshall intended to switch to “another company that you had given me the phone number of.” That company was ETOH, which offered to put Marshall “on a more graduated payment plan.”
52. ETOH charged Marshall a $100 installation fee and between $8.50 and $10 per day of monitoring.
53. Marshall worked in food delivery at the time, and these pretrial fees were a significant financial burden and deprivation of property.
54. Marshall managed to pay ETOH about $150 per month—about half of his fees—and his balance with ETOH continued to mount.
55. Marshall continued making all his court appearances, passed every drug test ordered by Judge Bonin (at Marshall’s expense), and continued paying ETOH to the best of his abilities.
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56. On October 19, 2018, ETOH emailed Judge Bonin and his staff “to confirm that Mr. Sookram is allowed to be released from the GPS monitor.”
57. Judge Bonin’s administrative assistant responded that day, “Mr. Sookram will be able to have the monitor removed once his balance is paid in full.”
58. ETOH communicated to Marshall that Judge Bonin’s chambers had conditioned Marshall’s release from ankle monitoring on paying all of ETOH’s fees. Marshall then paid at least $500 (which he could afford only with the help of family) and was immediately freed from ankle monitoring.
59. On October 24, 2018, ETOH informed Judge Bonin that “Mr. Sookram has paid his balance in full” and “has no further obligation to make payments to our company.”
60. Over the course of about eight months, Marshall paid ETOH well over $1,000. 61. In February 2020, to escape the specter of his criminal case—which by then was ongoing for over two years—Marshall pleaded guilty to a charge of disturbing the peace. All his other charges were dropped. Judge Bonin sentenced Marshall to four days of probation, without ankle monitoring. 62. Marshall is not currently party to any state court proceedings. 63. Marshall now owns his own small concessions and vending business, and he has turned around and rebuilt his life. Judge Bonin has personal, financial, professional, and political relationships with ETOH’s principals. 64. From 2008 to 2016, Judge Bonin was a state appellate judge, elected to serve on the Louisiana Fourth Circuit Court of Appeal. 65. In 2016, he ran for and won election to a lower court: the Orleans Parish Criminal District Court, on which he still serves as one of thirteen criminal trial court judges.
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66. Judge Bonin presides over criminal cases, including pretrial, trial, and sentencing proceedings.
67. Before his political and judicial career, one of Bonin’s legal partners for more than a decade was Leonard L. Levenson, a Louisiana licensed attorney.
68. In 2006, Levenson and Christian W. Helmke (also a Louisiana licensed attorney) founded ETOH Monitoring, LLC, a Louisiana limited liability company domiciled in New Orleans.
69. Levenson and Helmke are principals of ETOH. 70. Levenson is the manager of Leonard L. Levenson & Associates, a Louisiana professional law corporation that he founded around 2000. 71. Helmke was the manager of the Law Office of Christian W. Helmke, a Louisiana limited liability company, from 2015 to 2017. 72. On information and belief, Levenson and Helmke are now both employed at Leonard L. Levenson & Associates, PLC, Levenson’s current law office. 73. Between 2005 and 2016, via these eponymous law offices, Levenson and Helmke donated and loaned a total of $9,650 to the three judicial election campaigns of Levenson’s former law partner, Judge Bonin. 74. Over the course of Judge Bonin’s three judicial election campaigns (2008, 2012, 2016), Levenson and Helmke made seven donations and one loan to Judge Bonin’s campaigns. 75. In 2016 alone—when Judge Bonin first ran for election to the Criminal District Court— Levenson and Helmke made three donations (totaling $3,550) and one loan (of $1,000) to his election campaign.
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76. On information and belief, from 2008 to 2016, Levenson and Helmke donated to four other Orleans Parish Criminal District Court judges’ election campaigns as well, but significantly less and significantly less often than to Judge Bonin’s.
77. On information and belief, unlike with Judge Bonin, none of Levenson’s and Helmke’s contributions to these other judges were loans.
78. On information and belief, the other private company that provides ankle monitoring services to the Orleans Parish Criminal District Court does not have personal, financial, professional, or political relationships with Judge Bonin, and has not donated or loaned money to Judge Bonin’s judicial election campaigns. Judge Bonin has made or has appeared to make ankle monitoring decisions—including pretrial jailing decisions—based on the financial interests of ETOH, the private company with which he has personal, financial, professional, and political relationships.
79. In making their election donations and loan to Judge Bonin, Levenson and Helmke do not appear to have violated any laws. Nor does Judge Bonin appear to have violated any laws in accepting the donations and loan.
80. However, neither Judge Bonin nor ETOH has disclosed these donations and this debt directly to the defendants that Judge Bonin orders to ankle monitoring. Nor has Judge Bonin disclosed to defendants the availability of alternative ankle monitoring providers when he ordered or steered the defendants to ETOH.
81. Moreover, defendants’ ability to pay ETOH’s fees has dictated Judge Bonin’s custody decisions.
82. These ties and actions bristle with bias and conflicts of interest, or at the very least the appearance thereof. They taint all of Judge Bonin’s ankle monitoring decisions since 2017 in which ETOH charged fees to defendants and give rise to the perception that judicial decision-
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making has been co-opted by the profit motive of a private company with which the judge has significant relationships, including a creditor-debtor relationship.
83. In May 2019, judicial watchdog organization Court Watch NOLA (CWN)1 issued a report revealing that Judge Bonin “made it a regular practice of recommending defendants use ETOH” and emailing defense attorneys “on how the defendant could sign up for ankle monitoring services,” while including ETOH managers on the emails. CWN found that he also required his staff to “provide the defendant or the defendant’s family members with the contact information for ETOH.”2
84. CWN also found that on “several occasions, Judge Bonin refused to release the defendants from jail until the family had arranged for ETOH to set up ankle monitoring,” and he regularly refused to release defendants from ankle monitoring “solely because the defendants had not paid ETOH all the remaining fees.”3
85. CWN found that Judge Bonin made a defendant’s release from ankle monitoring contingent on “financial obligations owed to the ankle monitoring company.”4 And he “threatened to put defendants back in jail and set bond for their failure to pay their remaining debts.”5
86. CWN concluded, “Judge Bonin was the only judge found to have required a defendant to use an ankle monitor and then steered the defendant to pay a specific ankle monitoring company (over other companies) from which the judge had received campaign contributions or a loan.”6
1 CWN, “2018 Review,” at 3, 15-24 & nn.1-4, 52-107, available at https://www.courtwatchnola.org/wp-content/uploads/2018-Annual-Report.pdf. 2 Id. at 21. 3 Id. at 22. 4 Id. 5 Id. 6 Id. at 19.
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87. Every month, ETOH sends Judge Bonin a Payment Status Report. It provides detailed information about each individual defendant’s payment history and status, including each individual defendant’s latest payment to ETOH and outstanding fees due to ETOH.
88. ETOH’s Payment Status Reports to Judge Bonin include notations such as “Please note that the highlighted clients need attention.” At least some clients are “highlighted” solely because they are behind on payments, including Hakeem.
89. At times, Judge Bonin has used his judicial power and position to ensure that defendants in his courtroom pay their debts to ETOH.
90. Specifically, investigations and public record requests have revealed that at least into 2019, Judge Bonin’s and ETOH’s practices continued, including but not limited to:
a. ordering defendants to ankle monitoring by ETOH (e.g., “I have modified the bail conditions of [the defendant] to require his enrollment with your firm at his expense for GPS monitoring.”);
b. conditioning release from monitoring on payments to ETOH (e.g., “Mr. Sookram will be able to have the monitor removed once his balance is paid in full.”); and
c. relying on judicial power to collect fees (e.g., “We ask that he be reminded of his continuing obligation to make payments to our company.”).
91. In January 2018, Judge Bonin ordered an indigent defendant to ankle monitoring at his expense. Judge Bonin told the defendant’s attorney to expect an email regarding making arrangements with the ankle monitoring provider. The defendant was then placed on ankle monitoring by ETOH. Each time ETOH informed Judge Bonin of this indigent defendant’s noncompliance with a term of his monitoring, ETOH added: “Also, please be advised that [the
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defendant] is severely delinquent on the payment agreement established with our company. We ask that he be reminded of his continuing obligation to make payments to our company.”
92. In February 2018, Judge Bonin told a defendant’s grandfather that “[the defendant is] also going to be subject to the monitoring service that you need to have her on that and finished by tomorrow.” Judge Bonin then instructed his clerk to “assist [the grandfather] in understanding what to do.” The defendant was then placed on ankle monitoring by ETOH.
93. In April 2018, Judge Bonin told a defendant, “within 24 hours of your release from custody, you need to go and get the ankle monitor on. I’m going to send the information to [your attorney] as to where you need to go at your expense.” The defendant was then placed on ankle monitoring by ETOH. When the defendant stopped paying ETOH, ETOH began pressuring his girlfriend for payment, including threats to have the defendant jailed if she did not pay. She is a health care provider, and ETOH continues pursuing her for the payment of her ex-boyfriend’s fees amid the Coronavirus pandemic.
94. In May 2018, while sentencing a defendant for multiple charges, Judge Bonin “waive[d] any fines and court costs.” Later, upon being reminded that the defendant had previously been ordered to ankle monitoring, Judge Bonin inquired, “what service is he with?” Upon learning that it was ETOH, Judge Bonin inquired of the defendant, “How much money do you owe them right now?” Judge Bonin then explained to the defendant, “when you get financially current then they can release you.” Judge Bonin concluded, “I’m going to release him subject to satisfying his obligation.”
95. In May 2018, Judge Bonin told a juvenile defendant and his mother (a mother of seven), “I’m going to send [your attorney] the information” to sign up for ankle monitoring. Judge Bonin told the mother, “It is at your expense, ma’am.” Judge Bonin concluded, “And once I’ve
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confirmed that you have made the financial arrangements with the GPS company, I’ll order the release of the bail. Until that time I’m going to hold him until all of those arrangements have been finalized.” The defendant was then placed on ankle monitoring by ETOH.
96. In July 2018, Judge Bonin told a defendant, “I’m going to send [your attorney] the information” to sign up for ankle monitoring, and “I need to get a letter from the monitor company saying that you’re on the monitor.” Judge Bonin explained to the defendant that the “ankle monitor is at your expense” and is “about $300 a month.” The defendant was then placed on ankle monitoring by ETOH. In September 2018, ETOH sent Judge Bonin an email updating the judge regarding the defendant’s efforts “to catch up on his balance”; this email had no apparent purpose except keeping Judge Bonin apprised of the defendant’s financial obligations to ETOH.
97. In August 2018, a juvenile defendant’s attorney represented to Judge Bonin that the juvenile’s family would arrange for ankle monitoring with a bail bondsman, to which Judge Bonin responded, “No. It’s not a bail bondsman. I use a special service.” The defendant was then placed on ankle monitoring by ETOH.
98. In August 2018, Judge Bonin told a defendant’s attorney, “I’m going to send you an email telling you how to contact the monitoring service that puts the monitors on . . . at his expense . . . .” That same day, Judge Bonin emailed ETOH and the defense attorney together, saying, “I have authorized [the defendant’s] release on $15,000 bail conditioned upon him being GPS monitored AT HIS EXPENSE . . . .” The defendant was then placed on ankle monitoring by ETOH.
99. In October 2018, Judge Bonin told a homeless defendant struggling with substance abuse that “before he’s released from custody [he] shall be fitted with an ankle monitor for the
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purposes of GPS location on him at his expense. And I will send you an e-mail for the family to

get in touch with them so that they know.” That same morning, Judge Bonin instructed “the

family [to] contact the ankle monitoring service to make arrangements for the prepayment (on a

monthly basis).” The defendant was then placed on ankle monitoring by ETOH. Judge Bonin’s

email explained, “I will consider reducing [the defendant’s] bond if necessary to expedite the

process of treatment”; but no such consideration was made regarding payments to ETOH.

100.

In November 2018, after ensuring that “the ankle monitor payment [will be taken

care of] today,” Judge Bonin told a defendant and his attorney to “arrange [for ETOH] to go to

the jail and put the monitor on him before he goes home.” That same morning, Judge Bonin

emailed ETOH and the defense attorney together, saying, “I have modified the bail conditions of

[the defendant] to require his enrollment with your firm at his expense for GPS monitoring.” The

defendant was then placed on ankle monitoring by ETOH.

101.

In December 2018, Judge Bonin told a defendant and his attorney, “I’m not going

to put that [bail] order in until I am notified by the monitoring service that his family has paid for

the monitoring service.” The defendant was then placed on ankle monitoring by ETOH.

102.

On at least one occasion in 2019, ETOH emailed Judge Bonin when a defendant

that the company was expecting did not show up, prompting Judge Bonin to threaten the

defendant’s immediate arrest—until the defendant’s attorney alerted Judge Bonin that the

defendant had complied with Judge Bonin’s ankle monitoring order, but had simply done so with

a different company.

103.

To this day, ETOH continues to pursue people for the collection of outstanding

fees accumulated as part of the judge’s and the company’s practices, including Hakeem, and at

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least one person who never appeared before Judge Bonin, but whose ex-boyfriend was ordered to

ankle monitoring with ETOH by Judge Bonin.

104.

These practices demonstrate Judge Bonin’s and ETOH’s joint activity and

ETOH’s performance of government functions.

105.

As of the date of this complaint, and on information and belief, neither Judge

Bonin nor ETOH have directly disclosed their ties to the members of the putative class.

Class Action Allegations

106.

Since 2017, Judge Bonin has ordered defendants to pay fees for their own

governmental custody to a private company in which the judge has various interests, with neither

the judge nor the company disclosing those interests or the availability of alternative providers.

107.

Accordingly, Hakeem and Marshall respectfully seek certification of the

following class under Fed. R. Civ. P. 23(b)(2) (“Rule 23(b)(2)”):

“Every individual who, since January 1, 2017, has been or will be ordered,

steered, or permitted by Judge Bonin to contract for or otherwise receive or pay

for ankle monitoring services by ETOH.”

108.

This case satisfies the requirements for certification of a class under Fed. R. Civ.

P. 23(a) (“Rule 23(a)”).

109.

Numerosity under Rule 23(a)(1): The putative class is so numerous that joinder of

all members is impracticable. There are at least 52 class members who have been ordered,

steered, or otherwise permitted by Judge Bonin to contract for or receive ankle monitoring

services with ETOH at their own expense.

110.

Commonality under Rule 23(a)(2): There are questions of law and fact common

to the class, namely, whether it violates the Due Process Clause of the Fourteenth Amendment

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for a judge to order, steer, or otherwise permit defendants appearing before him to enter into

ankle monitoring service agreements with, or pay ankle monitoring fees to, a company with

which the judge has personal, financial, professional, and political ties.

111.

Typicality under Rule 23(a)(3): The claims of the representative parties are

typical of the claims of the class as a whole in that Hakeem and Marshall have suffered the same

constitutional violations as the other members of the class.

112.

Adequacy of representation under Rule 23(a)(4): Hakeem and Marshall will fairly

and adequately protect the interests of the class they seek to represent. Hakeem and Marshall are

members of the putative class, and their interests are aligned with the interests of putative class

members. Hakeem’s and Marshall’s interests are seeking to end violation of defendants’ due

process rights by Judge Bonin and ETOH. Hakeem and Marshall seek declaratory and injunctive

relief for the injury caused by these practices. These interests are shared by all class members.

113.

Adequacy of class counsel under Rule 23(g): Named Plaintiffs are represented pro

bono by the Institute for Justice and by the Law Office of William Most, L.L.C. The Institute is a

501(c)(3) non-profit organization with experience litigating class-action lawsuits around the

country, including civil-rights cases involving similar due process claims litigated in federal

court in Chicago, Illinois; Philadelphia, Pennsylvania; and Pagedale, Missouri.

114.

The Law Office of William Most, L.L.C. is a law firm based in New Orleans,

with experience litigating class-action lawsuits around the country, including a civil rights class-

action case under the Fourteenth Amendment in federal court in Louisiana.

115.

The representative parties and their counsel will fairly and adequately protect the

interests of the class.

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116.

The members of the class are readily and objectively ascertainable because the

Orleans Parish Criminal District Court, Judge Bonin’s chambers, and ETOH maintain records of

every individual who, since January 1, 2017, has been or will be ordered to ankle monitoring by

Judge Bonin and has paid, will pay, has incurred, or will incur fees for ankle monitoring by

ETOH, and in what amounts.

117.

Class certification is appropriate under Rule 23(b)(2) because Judge Bonin and

ETOH have acted or refused to act on grounds and in ways that apply generally to the class, so

that declaratory and injunctive relief are appropriate respecting the class as a whole.

118.

Namely, Judge Bonin and ETOH have ordered, steered, or otherwise permitted

defendants to pay ankle monitoring fees to a company in which Judge Bonin has personal,

financial, professional, and political interests, without disclosure of these interests or of

alternative options, and they have conditioned custody determinations on the ability to pay those

fees, thus creating a custodial system fraught with bias or the appearance of bias.

119.

A declaration that deprivations of liberty and property pursuant to these practices

violate due process because they create bias or the appearance of bias will provide relief for the

class as a whole. So, too, will an injunction requiring ETOH to return with interest the fees it has

collected from the class since January 1, 2017, and cancel any pending or outstanding fees of the

class.

120.

For these reasons, a class action is superior to other available methods for the fair

and efficient adjudication of this controversy, and to avoid inconsistent outcomes. Individual

challenges to Judge Bonin’s and ETOH’s practices are impracticable, in part because Judge

Bonin’s and ETOH’s practices remain almost entirely undisclosed to those affected by them,

and, in any event, the costs associated with bringing individual challenges would almost

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certainly be prohibitive of a full and fair process for vindicating individuals’ constitutional rights.

A class action will allow for effective, class-wide relief to remedy Judge Bonin’s and ETOH’s

unconstitutional practices.

121.

Injunctive relief for the return of the class’s property as a whole is appropriate and

does not require individualized determinations of entitlement to relief, but rather only the

ministerial act of restoring to each person the amount he or she paid, as documented in Judge

Bonin’s and ETOH’s regularly maintained records, plus a class-wide percentage of interest that

also requires no individualized determinations of entitlement.

Causes of Action

Count 1 Class Claim Under 42 U.S.C. § 1983 – Fourteenth Amendment Due Process
(Both Defendants for Class-Wide Declaratory Relief)

122.

Plaintiffs re-allege and incorporate by reference each and every allegation above.

123.

Plaintiffs bring this claim against both Defendants on behalf of themselves and

the class, for class-wide declaratory relief.

124.

The Due Process Clause of the Fourteenth Amendment applies to private actors in

joint activity with state actors or performing public or government functions, as is ETOH here.

125.

The Due Process Clause of the Fourteenth Amendment secures the fundamental

right to neutrality in judicial decision-making. It prohibits even the appearance of self-interest or

bias. A showing of actual influence is not required.

126.

These principles apply to decisions by a judge that benefit or may appear to

benefit his or her own personal, financial, professional, political, or institutional interest.

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127.

These principles also apply to decisions by a judge that benefit or may appear to

benefit a third party in which the judge has a personal, financial, professional, political, or

institutional interest.

128.

Judge Bonin’s and ETOH’s practice of requiring criminal defendants to pay ankle

monitoring fees to ETOH—a company in which the judge has personal, financial, professional,

and political interests—and their practice of tying custody determinations to the payment of

those fees to ETOH are unconstitutional because, in the absence of adequate disclosures, they

demonstrate judicial bias and conflicts of interest, or the appearance of judicial bias and conflicts

of interest, in violation of due process.

129.

Each class member has suffered and continues to suffer this violation of due

process.

Count 2 Class Claim Under 42 U.S.C. § 1983 – Fourteenth Amendment Due Process
(Defendant ETOH Monitoring, LLC for Class-Wide Injunctive Relief)

130.

Plaintiffs re-allege and incorporate by reference each and every allegation above.

131.

Plaintiffs bring this claim against Defendant ETOH Monitoring, LLC on behalf of

themselves and the class, for class-wide injunctive relief.

132.

The Due Process Clause of the Fourteenth Amendment applies to private actors in

joint activity with state actors or performing public or government functions, as is ETOH here.

133.

The Due Process Clause of the Fourteenth Amendment secures the fundamental

right to neutrality in judicial decision-making. It prohibits even the appearance of self-interest or

bias. A showing of actual influence is not required.

134.

These principles apply to decisions by a judge that benefit or may appear to

benefit his or her own personal, financial, professional, political, or institutional interest.

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135.

These principles also apply to decisions by a judge that benefit or may appear to

benefit a third party in which the judge has a personal, financial, professional, political, or

institutional interest.

136.

Judge Bonin’s and ETOH’s practice of requiring criminal defendants to pay ankle

monitoring fees to ETOH—a company in which the judge has personal, financial, professional,

and political interests—and their practice of tying custody determinations to the payment of

those fees to ETOH are unconstitutional because, in the absence of adequate disclosures, they

demonstrate judicial bias and conflicts of interest, or the appearance of judicial bias and conflicts

of interest, in violation of due process.

137.

Each class member has suffered and continues to suffer this violation of due

process.

138.

This Court should issue an order enjoining ETOH from engaging in these

unconstitutional practices.

139.

This Court should issue an order enjoining ETOH from reporting or sending to

Judge Bonin the ETOH payment history or status of any individual defendant or defendants

collectively.

140.

This Court should issue an order enjoining ETOH from invoking Judge Bonin’s

judicial authority and power to remind defendants of their ETOH fees or to ensure that

defendants pay their ETOH fees.

141.

This Court should issue an order enjoining ETOH from collecting pending or

outstanding fees incurred by the class pursuant to these unconstitutional practices, and from

assessing future fees against the class pursuant to these unconstitutional practices.

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142.

This Court should issue a mandatory injunction requiring ETOH to return to the

class the fees it has collected from class members since January 1, 2017, with interest, and to

cancel any pending or outstanding fees owed by the class.

Request for Relief Wherefore, Plaintiffs respectfully request that this Court: A. Certify a class under Federal Rule of Civil Procedure 23(b)(2) consisting of: “Every individual who, since January 1, 2017, has been or will be ordered, steered, or permitted by Judge Bonin to contract for or otherwise receive or pay for ankle monitoring services by ETOH.” B. Issue a class-wide order declaring that, absent full and adequate disclosure by Judge Bonin and ETOH directly to defendants appearing before Judge Bonin of Judge Bonin’s and ETOH’s personal, financial, professional, and political relationships and of the availability of the alternative ankle monitoring providers, and the defendants’ knowing and voluntary consent, it is unconstitutional under the Due Process Clause of the Fourteenth Amendment for Judge Bonin to order, steer, or otherwise permit criminal defendants appearing before him to pay ankle monitoring fees to ETOH, a company in which the judge has personal, financial, professional, and political interests. C. Issue a class-wide order declaring that each member of the class has had and continues to have his or her right to due process violated by Judge Bonin’s and ETOH’s practice of ordering, steering, or otherwise permitting criminal defendants appearing before Judge Bonin to pay ankle monitoring fees to ETOH, a company in which the judge has personal, financial, professional, and political interests.

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D. Issue a permanent class-wide injunction enjoining ETOH from entering into contracts, or otherwise agreeing to provide for a fee, ankle monitoring services with defendants appearing before Judge Bonin absent full and adequate disclosure by Judge Bonin and ETOH directly to defendants appearing before Judge Bonin of Judge Bonin’s and ETOH’s personal, financial, professional, and political relationships and of the availability of alternative ankle monitoring providers, and the defendants’ knowing and voluntary consent.
E. Issue a permanent class-wide injunction enjoining ETOH from reporting or sending to Judge Bonin the ETOH payment history or status of any individual defendant or defendants collectively.
F. Issue a permanent class-wide injunction enjoining ETOH from invoking Judge Bonin’s judicial authority and power to remind defendants of their ETOH fees or to ensure that defendants pay their ETOH fees.
G. Issue a permanent class-wide injunction enjoining ETOH’s collection of pending or outstanding fees incurred by the class, and against assessment of future fees to the class.
H. Issue a permanent class-wide injunction requiring ETOH to disgorge and return to the class the fees it has collected from class members since January 1, 2017, with interest, and to cancel any pending or outstanding fees owed by the class.
I. Award Plaintiffs their attorney fees, costs, and expenses under 42 U.S.C. § 1988 and any other applicable provisions of law or equity.
J. Award Plaintiffs and the class any further equitable or legal relief the Court may deem just and proper.
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Dated: May 27, 2020

Respectfully Submitted,
/s/ William R. Maurer William R. Maurer (WA Bar No. 25451)* INSTITUTE FOR JUSTICE 600 University Street, Suite 1730 Seattle, WA 98101 (206) 957-1300 wmaurer@ij.org
William Most (LA Bar No. 36914) LAW OFFICE OF WILLIAM MOST, L.L.C. 201 St. Charles Ave., Ste. 114, # 101 New Orleans, LA 70170 (504) 509-5023 williammost@gmail.com
Jaba Tsitsuashvili (DC Bar No. 1601246)* INSTITUTE FOR JUSTICE 901 North Glebe Road, Suite 900 Arlington, VA 22203 (703) 682-9320 jtsitsuashvili@ij.org
* Admitted pro hac vice

CERTIFICATE OF SERVICE

I hereby certify that on May 27, 2020, a copy of the foregoing First Amended Class

Action Complaint for Declaratory and Injunctive Relief was filed electronically with the Clerk of

Court via the CM/ECF system. Notice of this filing will be sent to all counsel of record by

operation of the court’s electronic filing system. I further certify that a copy of the foregoing will

be mailed to:

Paul Bonin Orleans Parish Courthouse 2nd Floor, Courthouse #13 2700 Tulane Avenue New Orleans, LA 70119

ETOH Monitoring LLC 427 Gravier Street, 2nd Floor New Orleans, LA 70130
/s/ William R. Maurer William R. Maurer

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 Case 2:20-cv-01455-CJB-DMD Document 39 Filed 09/04/20 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

HAKEEM MEADE VERSUS PAUL A. BONIN, ET AL.

CIVIL ACTION 20-1455 SECTION: “J” (3)

ORDER & REASONS Before the Court is a Motion to Dismiss for Failure to State a Claim (Rec. Doc. 12) filed by Defendant, ETOH Monitoring, LLC (“ETOH”). Plaintiffs oppose the motion (Rec. Doc. 24). Having considered the motions and memoranda, the record, and the applicable law, the Court finds that the Motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND This proposed class action arises from an alleged conflict of interest in the operations of the Orleans Parish Criminal District Court (“OPCDC”).1 Defendant Judge Bonin is a judge on that court and at times requires defendants released from pretrial custody to wear ankle monitoring devices. OPCDC does not operate its own ankle monitoring service; consequently, when a defendant is ordered to sign up for ankle monitoring, they must choose from among three ankle monitoring providers operating in Orleans Parish, one of which is Defendant ETOH. For these services, ETOH charges defendants a $100 installation fee plus $8.50 to $10 per day.
1 Because this is a motion to dismiss, the Court must accept all facts stated in the complaint as true and view them in the light most favorable to Plaintiffs. See, e.g., Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

Case 2:20-cv-01455-CJB-DMD Document 39 Filed 09/04/20 Page 2 of 10
Plaintiffs Hakeem Meade and Marshall Sookram were defendants ordered by Judge Bonin to obtain ankle monitoring from ETOH while on pretrial release. Meade had been on pretrial release without monitoring for approximately fifteen months when Judge Bonin ordered him to obtain ankle monitoring from ETOH without explanation in August 2017. Judge Bonin agreed to release him from ankle monitoring in October 2017, at which point Meade had accumulated about $600 in fees owed to ETOH. In at least one subsequent pretrial hearing, Judge Bonin reminded Meade that he still owed money to ETOH and that his failure to pay ETOH could violate his bond conditions. Meade paid some of the fees before pleading guilty and serving his prison sentence. ETOH is still attempting to collect the approximately $322 in ankle monitoring fees that Meade was unable to pay before being incarcerated.
Sookram had been on pretrial release without monitoring for over a month before Judge Bonin ordered him to obtain ankle monitoring at his arraignment. After approximately six months of monitoring by ETOH, ETOH contacted Judge Bonin to confirm that Sookram could be released from monitoring, to which Judge Bonin’s assistant replied that he could be released once his balance was paid in full. When ETOH informed Sookram of this condition, Sookram paid at least $500 by borrowing money from his family and was immediately released. He later pleaded guilty and served four days of probation without ankle monitoring.
Plaintiffs allege that Judge Bonin has personal, financial, professional, and political relationships with ETOH’s principals, Leonard L. Levenson and Christian
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W. Helmke, such that his practices of requiring defendants to pay ankle monitoring fees to ETOH and linking custody determinations to the payment of those fees amount to unconstitutional judicial bias and conflicts of interest. Specifically, Plaintiffs allege that Levenson was Judge Bonin’s law partner for over a decade before he was first elected judge, and that Levenson and Helmke donated a total of $8,650 to Judge Bonin’s three judicial election campaigns and made one loan of $1,000 to his 2016 campaign for OPCDC. Plaintiffs contend that Judge Bonin’s failure to disclose these relationships amounts to, at minimum, the appearance of judicial bias and conflicts of interest in violation of their due process rights. Further, because ETOH imposed and collected fees from them without disclosing these relationships and because Judge Bonin conditioned Plaintiffs’ custody determinations on their ability to pay ETOH, Plaintiffs argue that ETOH should be ordered to return any fees collected from class members and to cancel any outstanding fees.2
Plaintiffs initiated this lawsuit on May 14, 2020, seeking declaratory relief against both Defendants and injunctive relief against ETOH. Plaintiffs seek a classwide order declaring that their due process rights were violated and continue to be violated by Judge Bonin and ETOH’s practice of “ordering, steering, or otherwise permitting criminal defendants appearing before Judge Bonin to pay ankle monitoring fees to ETOH” without “full and adequate disclosure” of Judge Bonin’s
2 Plaintiffs allege that ETOH charge somewhat higher fees than other providers: “Nationally, an ankle monitor typically costs the defendant at least $10 a day, along with an installation fee of $50 to $100 or more,” while “ETOH charges defendants . . . a $100 installation fee plus $8.50 to $10 per day (i.e. between $238 and $310 per month).” (Rec. Doc. 7, at 4-5). Plaintiff Sookram initially obtained services from another company that charged him “a $50 installation fee and $10 per day of monitoring” before switching to ETOH. Id. at 9.
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relationships with ETOH and the availability of alternative providers.3 Plaintiffs also request an injunction against ETOH prohibiting it from (1) charging defendants before Judge Bonin a fee for providing ankle monitoring services without disclosure of their relationships, (2) reporting the payment history or status of any defendant to Judge Bonin, (3) invoking Judge Bonin’s judicial authority to ensure that defendants pay their fees, and (4) collecting any pending or outstanding fees incurred by the class and assessing future fees against class members. Plaintiffs further request that ETOH be ordered to disgorge any fees collected from class members since January 1, 2017, with interest, and to cancel any pending or outstanding fees owed by class members.
After Judge Bonin and ETOH filed motions to dismiss Plaintiffs’ claims, Plaintiffs voluntarily dismissed their claims against Judge Bonin.4 ETOH’s motion to dismiss is now before the Court on the briefs and without oral argument.
LEGAL STANDARD To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead sufficient facts to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “[D]etailed factual
3 (First Amended Complaint, Rec. Doc. 7, at 24). 4 (Rec. Doc. 26); see In re Amerijet Int’l, Inc., 785 F.3d 967, 973 (5th Cir. 2015).
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allegations” are not required, but the pleading must present “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. The court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009). However, “‘conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.’” Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation omitted).
DISCUSSION ETOH argues that Plaintiffs have failed to state a claim because ETOH is not a state actor, did not act under color of state law, and did not conspire with or act in concert with any state actor. ETOH points out that Plaintiffs have not alleged that it participated in any electronic monitoring orders or had an agreement with Judge Bonin regarding any such orders. ETOH further asserts that the campaign contributions did not violate any law and were properly disclosed and available to the public on the Louisiana Ethics Administration Program’s website. To state a claim under 42 U.S.C. § 1983, a plaintiff must (1) “allege the violation of a right secured by the Constitution and laws of the United States,” and (2) “show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). To meet the “under color of state law” element, there must be a showing of “some manner of state responsibility for the acts that underlie” the claim. Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 387 (5th Cir. 1985). When a § 1983 claim is brought for violations of the Fourteenth
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Amendment, the “under color of state law” requirement and the Fourteenth Amendment’s “state-action” requirement “converge.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 & n.8 (1999). State action may be found where a private actor’s conduct is “fairly attributable” to the State. Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). “Fair attribution” requires that (1) the deprivation of a constitutional right was “caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible,” and (2) “the party charged with the deprivation must be a person who may fairly be said to be a state actor . . . because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).
The Supreme Court has developed several tests for determining whether a private actor’s conduct constitutes state action. E.g., Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549-50 (5th Cir. 2005) (summarizing tests). Plaintiffs argue that ETOH qualifies as a state actor under the “public function” test.
“Under the Supreme Court’s ‘public function’ test, a private entity acts under color of state law ‘when that entity performs a function which is traditionally the exclusive province of the state.’” Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) (per curiam) (citation omitted). “‘[W]hen private individuals or groups are endowed by the State with powers or functions governmental in nature,
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they become agencies or instrumentalities of the State and subject to its constitutional limitations.’” Id. (quoting Evans v. Newton, 382 U.S. 296, 299 (1966)).
“Deciding whether a deprivation of a protected right is fairly attributable to the State ‘begins by identifying the specific conduct of which the plaintiff complains.’” Cornish, 402 F.3d at 550 (quoting Sullivan, 526 U.S. at 51). Thus, the Fifth Circuit has held that corporations operating private prisons may be sued under § 1983 by prisoners for constitutional injury, Rosborough, 350 F.3d at 461, but not by an employee for retaliatory discharge in violation of the First and Fourteenth Amendments, where there was no allegation that the state compelled or participated in the termination decision, Cornish, 402 F.3d at 550-51. “[C]onfinement of wrongdoers–though sometimes delegated to private entities–is a fundamentally governmental function.” Rosborough, 350 F.3d at 461; see also Stephens v. Corr. Servs. Corp., 428 F. Supp. 2d 580, 584 (E.D. Tex. 2006) (“The maintenance of a prison system is something ‘traditionally reserved to the state.’” (quoting Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir. 1991)).
In Ayo v. Dunn, the court held that a private corporation providing pretrial supervision services for the 19th Judicial District Court was a state actor because “pretrial detention and supervision are traditionally state functions.” No. 17-526, 2018 WL 4355199, at *2 (M.D. La. Sept. 12, 2018). Similarly, in Jones v. County of Suffolk, the court held that a private organization was a state actor because it had been “delegated . . . the inherently public function of monitoring registered sex offenders.” 164 F. Supp. 3d 388, 396 (E.D.N.Y. 2016).
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Here, prior to 2016, the City of New Orleans contracted with the Orleans Parish Sheriff’s Office to conduct ankle monitoring of pretrial defendants in OPCDC.5 Since 2016, two private companies, one of which is ETOH, as well as the Gretna Police Department’s Home Incarceration Program have provided these services for OPCDC.6 Ankle monitoring is an alternative to pretrial detention that allows the monitoring entity to determine whether a defendant is complying with a curfew or geographic restrictions imposed by OPCDC.7
Nevertheless, ETOH raises a series of incoherent arguments that it is not a state actor. It first conflates the requirements of the public function test with the joint action test. See, e.g., Cornish, 402 F.3d at 549-50 (describing different tests). In Ballard v. Wall, which ETOH cites, the Fifth Circuit relied on the “joint action” test in holding that the defendants were state actors. See 413 F.3d 510, 519 (citing Dennis v. Sparks, 4429 U.S. 24, 28 (1980)). ETOH quotes but then ignores language from Lugar indicating that joint activity may not be necessary where an actor’s “conduct is otherwise chargeable to the State.” 457 U.S. at 937.
ETOH next attempts to distinguish Rosborough as “clearly inapposite” but fails to explain why. Tellingly, while ETOH also attempts to distinguish Ayo and
5 Office of Inspector General, City of New Orleans, Evaluation of the City’s Electronic Monitoring Program Administered by the Orleans Parish Sheriff’s Office at 2 (Apr. 2, 2014) [hereinafter “OIG Report”], http://nolaoig.gov/index.php?option=com_mtree&task=att_download&link_id=31&cf_id=37; Cooperative Endeavor Agreement Between the City of New Orleans and Orleans Parish Sheriff’s Office (Oct. 15, 2010), https://assets.documentcloud.org/documents/1153514/orleans-parish-sheriffsoffice-contract-with.pdf. The Court takes judicial notice of these documents pursuant to Federal Rule of Evidence 201(b). See, e.g., Swindol v. Aurora Flight Sciences Corp., 805 F.3d 516, 519 (5th Cir. 2015). 6 (Rec. Doc. 7, at 4); see also Court Watch NOLA, Orleans Criminal District Court, Magistrate Court & Municipal Court: 2018 Review at 18 & n.84, https://www.courtwatchnola.org/wpcontent/uploads/2018-Annual-Report.pdf. 7 (Rec. Doc. 7, at 4); see also OIG Report, supra note 5, at 2.
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Jones, it fails to cite any case where a “private sector service provider in criminal matters”8 was found not to be a state actor under the public function test. That is because pretrial supervision, like incarceration of convicted criminals, is “‘traditionally the exclusive province of the state.’” Rosborough, 350 F.3d at 460 (citation omitted). While ETOH argues that its lack of authority to sanction or penalize any defendant under its supervision makes it not a state actor, it fails to acknowledge the significance of its authority to conduct continuous GPS monitoring of these defendants, authority granted to it by the state. As Plaintiffs point out, if ETOH were to engage in such monitoring without authorization from OPCDC, it would likely be committing a crime, which supports the conclusion that it acts as an agent or instrumentality of the state in providing these services. See Evans, 382 U.S. at 299.
Accordingly, the Court finds that ETOH is a state actor when it provides ankle monitoring services to criminal defendants because monitoring pretrial defendants is a “fundamentally governmental function” that is “traditionally reserved to the state.” Rosborough, 350 F.3d at 461; accord Ayo, 2018 WL 4355199, at *2.9
CONCLUSION Accordingly, IT IS HEREBY ORDERED that ETOH’s Motion to Dismiss for Failure to State a Claim (Rec. Doc. 12) is DENIED.
8 (Rec. Doc. 33-2, at 8). 9 Because the Court concludes that ETOH is a state actor under the public function test, it does not address the parties’ arguments under the “joint action” test.
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Case 2:20-cv-01455-CJB-DMD Document 39 Filed 09/04/20 Page 10 of 10 New Orleans, Louisiana, this 4th day of September, 2020. CARL J. BARBIER UNITED STATES DISTRICT JUDGE
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