Case: 2:17-cv-6197 As of: 10/17/2019 10:24 AM CDT 1 of 10
APPEAL,CLASS,CLOSED
U.S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:17−cv−06197−EEF−MBN

Caliste et al v. Cantrell Assigned to: Judge Eldon E. Fallon Referred to: Magistrate Judge Michael North Case in other court: 5th Circuit Court of Appeals, 17−30831
usca, 18−30954 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 06/27/2017 Date Terminated: 08/14/2018 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Adrian Caliste individually and on behalf of all others simialry situated

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

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

James William Craig Roderick and Solange MacArthur Justice Center 4400 S. Carrollton Avenue New Orleans, LA 70119 504−620−2259 Email: jim.craig@macarthurjustice.org ATTORNEY TO BE NOTICED

Katharine Murphy Schwartzmann American Civil Liberties Union Foundation (New Orleans) 1340 Poydras St. Suite 2160 P. O. Box 56157 New Orleans, LA 70156 504−522−0628 Email: kschwartzmann@laaclu.org ATTORNEY TO BE NOTICED

Plaintiff
Brian Gisclair individually and on behalf of all others simialry situated

represented by Eric A. Foley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED

James William Craig

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(See above for address) ATTORNEY TO BE NOTICED
Katharine Murphy Schwartzmann (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Harry E. Cantrell Magistrate Judge of Orleans Parish Criminal District Court

represented by Dennis J. Phayer Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 (504) 836−2220 Email: dphayer@burglass.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Celeste Brustowicz Cooper Law Firm, LLC 1525 Religious Street New Orleans, LA 70130 504−399−0009 Fax: 504−309−6989 Email: cbrustowicz@sch−llc.com TERMINATED: 05/15/2018
Christopher Kent Tankersley Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 (504) 836−2220 Email: ctankersley@burglass.com ATTORNEY TO BE NOTICED
Elizabeth A. Doubleday Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 504−836−0428 Email: edoubleday@burglass.com ATTORNEY TO BE NOTICED
Mindy Nunez Duffourc Burglass & Tankersley, L.L.C. 5213 Airline Dr. Metairie, LA 70001 504−836−0423 Email: mnunezduffourc@burglass.com ATTORNEY TO BE NOTICED

Date Filed 06/27/2017
06/27/2017 06/27/2017

# Docket Text
1 COMPLAINT against Harry E. Cantrell, Jr (Filing fee $ 400 receipt number 053L−6227758) filed by Adrian Caliste Gisclair. (Attachments: # 1 Summons, # 2 Civil Cover Sheet)Attorney Katharine Murphy Schwartzmann added to p Adrian Caliste(pty:pla), Attorney Katharine Murphy Schwartzmann added to party Brian Gisclair(pty:pla).(Schwartz Katharine) (Attachments 1 & 2 replaced on 6/27/2017) (cms). (Entered: 06/27/2017)
2 Initial Case Assignment to Judge Eldon E. Fallon and Magistrate Judge Michael North. (jeg) (Entered: 06/27/2017)
3 Correction of Docket Entry by Clerk re 1 Complaint; Filing attorney did not properly format the pdf of the summons civil cover sheet. The pdf should not have the pink header nor the 3 red buttons at the bottom. When using a FORM,

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06/27/2017 06/28/2017
06/30/2017 06/30/2017 07/03/2017 07/06/2017 07/14/2017
07/17/2017
07/17/2017
07/18/2017 07/20/2017 07/20/2017 07/27/2017 08/02/2017 08/03/2017 08/04/2017 08/07/2017 08/07/2017 08/09/2017 08/09/2017 08/14/2017 08/15/2017

the applicable fields then click the red PRINT button at the bottom to print the document to pdf format. Clerk has tak corrective action. (cms) (Entered: 06/27/2017)
4 Summons Issued as to Harry E. Cantrell. (cms) (Entered: 06/27/2017)
5 MOTION to Certify Class by Adrian Caliste, Brian Gisclair. Motion(s) will be submitted on 8/23/2017. (Attachmen Memorandum in Support, # 2 Exhibit Schwartzmann Dec, # 3 Exhibit Foley Dec, # 4 Exhibit Karakatsanis Dec, # 5 of Submission)(Schwartzmann, Katharine) (Entered: 06/28/2017)
6 **DEFICIENT**MOTION to Join by David Andrew Christenson (Attachments: # 1 Exhibits)(cms) (Entered: 06/30
7 NOTICE OF DEFICIENT ProSe DOCUMENT: re 6 Motion to Join. Please see attached letter for steps needed to re deficiency. Deficiency remedy due by 7/21/2017. (cms) (Entered: 06/30/2017)
8 Notice of Related Case(s) by All Plaintiffs of related case(s) 15−cv−4479. (Schwartzmann, Katharine) (Entered: 07/03/2017)
9 SUMMONS Returned Executed; Harry E. Cantrell served on 6/30/2017, answer due 7/21/2017. (Schwartzmann, Ka (Entered: 07/06/2017)
10 DEFICIENT MOTION to Dismiss by Harry E. Cantrell. Motion(s) will be submitted on 8/23/2017. (Attachments: # Memorandum in Support, # 2 Exhibit 1, # 3 Notice of Submission)Attorney Celeste Brustowicz added to party Harr Cantrell(pty:dft).(Brustowicz, Celeste) Modified text on 7/17/2017 (ss). (Entered: 07/14/2017)
11 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice (Filing fee $ 100 receipt number 053L−6260717) by Adr Caliste, Brian Gisclair. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Exhibit Declaration of Alec Karakatsanis, # 3 Proposed Order)(Foley, Eric) Modified on 7/18/2017 (ss). (Entered: 07/17/2017)
12 MOTION to Dismiss by Harry E. Cantrell. Motion(s) will be submitted on 8/23/2017. (Attachments: # 1 Memorand Support, # 2 Exhibit, # 3 Notice of Submission)(Brustowicz, Celeste) Modified text on 7/18/2017 (ss). (Entered: 07/17/2017)
13 ORDER granting 11 Motion to Appear Pro Hac Vice as to Alec George Karakatsanis. Signed by Judge Eldon E. Fal 7/18/2017. (cms) (Entered: 07/18/2017)
14 MOTION to Join by David Andrew Christenson Motion(s) will be submitted on 8/23/2017. (Attachments: # 1 Exhib Notice of Submission−Cured Deficiency)(cms) (Entered: 07/21/2017)
15 NOTICE OF APPEAL by David Andrew Christenson. (cms) (Entered: 07/21/2017)
16 RESPONSE/MEMORANDUM in Opposition filed by Harry E. Cantrell re 14 MOTION to Join . (Brustowicz, Cele (Entered: 07/27/2017)
17 **DEFICIENT**REPLY to Response to Motion re 14 MOTION to Join by David Andrew Christenson. (Attachmen Exhibits) (cms) (Entered: 08/03/2017)
18 NOTICE OF DEFICIENT ProSe DOCUMENT: re 17 Reply to Response to Motion. Please see attached letter for st needed to remedy deficiency. Deficiency remedy due by 8/24/2017. (cms) (Entered: 08/03/2017)
19 ORDERED that the Court will hear oral argument on Plaintiffs' 5 MOTION to Certify Class, and Defendant's 12 MO to Dismiss, on August 23, 2017 at 9:00 a.m. Signed by Judge Eldon E. Fallon on 8/4/2017. (cms) (Entered: 08/04/20
20 EXPARTE/CONSENT MOTION for Leave to File Reply by David Andrew Christenson. (Attachments: # 1 Propose Pleading, # 2 Exhibit)(jls) (Entered: 08/07/2017)
21 RESPONSE/MEMORANDUM in Opposition filed by Harry E. Cantrell re 5 MOTION to Certify Class . (Brustowic Celeste) Modified text on 8/8/2017 (ss). (Entered: 08/07/2017)
22 ORDER granting 20 Motion for Leave to File Response. Signed by Judge Eldon E. Fallon on 8/8/2017. (cms) (Enter 08/09/2017)
23 REPLY to Response to Motion re 14 MOTION to Join by David Andrew Christenson. (Attachments: # 1 Exhibit)(c (Entered: 08/09/2017)
24 ORDERED that David Andrew Christenson's 14 Motion to Join is hereby DENIED. Signed by Judge Eldon E. Fallo 8/11/2017. (cms) (Entered: 08/14/2017)
25 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 12 MOTION to Dismiss . (Foley, Eric) (Ente 08/15/2017)

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08/15/2017 08/17/2017
08/18/2017
08/21/2017
08/22/2017
08/23/2017
08/23/2017 08/23/2017
08/23/2017 08/24/2017 08/24/2017 08/24/2017 08/24/2017 08/24/2017 08/24/2017 08/24/2017 08/24/2017 08/25/2017 08/25/2017
08/31/2017 09/07/2017

26 **DEFICIENT** REPLY to Response to Motion filed by All Plaintiffs re 5 MOTION to Certify Class Replying to Defendant's Opposition 21 . (Foley, Eric) Modified text on 8/16/2017 (ss). (Entered: 08/15/2017)
27 EXPARTE/CONSENT MOTION for Leave to File Replying to Defendant's Opposition 21 by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Pleading Proposed Reply Memorandum)(Foley, Eric) (Additional attachment(s on 8/18/2017: # 2 Proposed Order) (ss). (Entered: 08/17/2017)
28 Correction of Docket Entry by Clerk re 27 MOTION for Leave to File Replying to Defendant's Opposition 21 ***Fi attorney did not include a proposed order. Proposed Order subsequently provided to Clerk and has now been attache motion.*** (ss) (Entered: 08/18/2017)
29 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Support of FRCP 12b(1) Motion to Dism Harry E. Cantrell. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Exhibit 1)(Brustowicz, Celeste) (E 08/21/2017)
30 EXPARTE/CONSENT MOTION for Leave to File Surresponse to Defendant's Motion to Dismiss by Adrian Caliste Gisclair. (Attachments: # 1 Proposed Pleading Proposed Surresponse to 29 , # 2 Proposed Order)(Foley, Eric) (Enter 08/22/2017)
31 Minute Entry for proceedings held before Judge Eldon E. Fallon: Motion Hearing held on 8/23/2017: re 5 MOTION Certify Class. After argument Motion continued to be reset; re 12 MOTION to Dismiss Case Pursuant to FRCP 12(b After argument Motion was taken under submission. Defense Exhibit 1 was offered and admitted. (Court Reporter M Thompson.) (Attachments: # 1 Exhibit 1) (mmv) (Entered: 08/23/2017)
32 REPLY to Response to Motion filed by Harry E. Cantrell re 12 MOTION to Dismiss . (Brustowicz, Celeste) (Entere 08/23/2017)
33 EXPARTE/CONSENT MOTION for Leave to File Supplemental Memorandum of Law by Adrian Caliste, Brian Gi (Attachments: # 1 Proposed Pleading Supplemental Memorandum of Law, # 2 Proposed Order)(Foley, Eric) Modifi on 8/24/2017 (ss). (Entered: 08/23/2017)
42 **DEFICIENT** MOTION for Reconsideration re 24 Order on Motion to Join, by David Andrew Christenson. (Attachments: # 1 Exhibit)(jls) (Entered: 08/25/2017)
34 ORDER GRANTING 27 Motion for Leave to File Reply to Defendant's Opposition to Plaintiffs' Motion to Certify a Action. Signed by Judge Eldon E. Fallon on 8/23/2017. (jls) (Entered: 08/24/2017)
35 REPLY to Response to Motion filed by Adrian Caliste, Brian Gisclair re 5 MOTION to Certify Class . (jls) (Entered 08/24/2017)
36 ORDER GRANTING 29 Motion for Leave to File Memorandum in Support of FRCP 12(b)(1) Motion to Dismiss an attached exhibits. Signed by Judge Eldon E. Fallon on 8/23/2017. (jls) (Entered: 08/24/2017)
37 REPLY to Response to Motion filed by Harry E. Cantrell re 12 MOTION to Dismiss . (Attachments: # 1 Exhibit 1)( (Entered: 08/24/2017)
38 ORDER GRANTING 30 Motion for Leave to File Surresponse in Opposition to Defendants Motion to Dismiss and Exceed Page Limit. Signed by Judge Eldon E. Fallon on 8/23/2017. (jls) (Entered: 08/24/2017)
39 Surresponse Memorandum filed by Adrian Caliste, Brian Gisclair, in Opposition to 12 MOTION to Dismiss . (jls) (E 08/24/2017)
40 ORDER GRANTING 33 Motion for Leave to File Supplemental Memorandum in Opposition to Defendants Motion Dismiss. Signed by Judge Eldon E. Fallon on 8/24/2017. (jls) (Entered: 08/24/2017)
41 Supplemental Memorandum filed by Adrian Caliste, Brian Gisclair, in Opposition to 12 MOTION to Dismiss . (jls) (Entered: 08/24/2017)
43 NOTICE OF DEFICIENT ProSe DOCUMENT: re 42 Motion for Reconsideration. Please see attached letter for step needed to remedy deficiency. Deficiency remedy due by 9/15/2017. (jls) (Entered: 08/25/2017)
44 ORDER AND REASONS denying 12 MOTION to Dismiss filed by Defendant Harry E. Cantrell. IT IS FURTHER ORDERED that the parties shall attend a status conference in chambers set for 9/7/2017 at 8:30 a.m. Signed by Judg E. Fallon on 8/25/2017.(jls) (Entered: 08/25/2017)
45 MOTION for Reconsideration re 24 Order on Motion to Join by David Andrew Christenson. Motion(s) will be subm on 1/31/2018. (Attachments: # 1 Exhibits, # 2 Notice of Submission) (cms) (Entered: 09/07/2017)
46 Minute Entry for proceedings held before Judge Eldon E. Fallon: Status Conference held on 9/7/2017. (cms) (Entere 09/07/2017)

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09/08/2017 09/14/2017
09/18/2017 09/22/2017 09/26/2017 10/13/2017 10/20/2017 10/20/2017 10/31/2017
11/01/2017
11/02/2017
11/02/2017 11/02/2017 11/02/2017 11/02/2017 11/03/2017
11/03/2017 11/07/2017
11/07/2017
11/07/2017 11/07/2017 11/13/2017

47 ORDERED that David Andrew Christenson's 45 Motion for Reconsideration is hereby DENIED. Signed by Judge E Fallon on 9/8/2017. (cms) (Entered: 09/08/2017)
48 EXPARTE/CONSENT MOTION for Discovery Scheduling Order on Discovery for Class Certification by Adrian C Brian Gisclair. (Attachments: # 1 Proposed Order)(Foley, Eric) Modified referral on 9/15/2017 (cms). (Entered: 09/14/2017)
49 ORDER granting 48 Motion for Discovery and discovery on theissue of class certification shall close on November 2017. Signed by Judge Eldon E. Fallon on 9/18/2017. (cms) (Entered: 09/19/2017)
50 MOTION to Stay for Notice of Appeal by David Andrew Christenson. Motion(s) will be submitted on 1/31/2018. (Attachments: # 1 Notice of Submission, # 2 Exhibit) (cms) (Entered: 09/25/2017)
51 ORDERED that David Andrew Christenson's 50 Motion for Stay for Notice of Appeal is hereby DENIED. Signed b Eldon E. Fallon on 9/26/2017. (cms) (Entered: 09/26/2017)
52 NOTICE OF APPEAL filed by David Andrew Christenson. (cms) (Entered: 10/13/2017)
53 USCA Case Number 17−30831 appealed to 5th Circuit Court of Appeals for 15 Notice of Appeal. (cms) (Entered: 10/20/2017)
54 ORDERED that the parties will participate in a telephone status conference on November 6, 2017 at 1:30 p.m. The C will initiate the call. Signed by Judge Eldon E. Fallon on 10/19/2017. (cms) (Entered: 10/20/2017)
55 **STRICKEN PURSUANT TO RULE 5(D) OF THE FRCP** Request for Subpoenas. 1 subpoenas issued by Adri Caliste, Brian Gisclair.(Foley, Eric) Modified text on 11/1/2017 (jls). (Main Document 55 replaced on 11/1/2017) (j (Entered: 10/31/2017)
56 Correction of Docket Entry by Clerk re 55 Request for Subpoenas. **Document has been stricken pursuant to Rule 5 the FRCP. Also, please note that a deposition subpoena can be issued by the attorney of record.** (jls) (Entered: 11/01/2017)
57 MOTION for Extension of Time to Complete Discovery by Harry E. Cantrell. Motion(s) will be submitted on 12/6/2 (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Notice of Submission)(Brustowicz, Celeste) M submission on 11/2/2017 (sa). (Entered: 11/02/2017)
58 EXPARTE/CONSENT MOTION to Expedite by Harry E. Cantrell. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Brustowicz, Celeste) (Entered: 11/02/2017)
59 Correction of Docket Entry by Clerk re 57 MOTION for Extension of Time to Complete Discovery. Filing attorney selected incorrect submission date. Correct date is 12/6/2017. Clerk took corrective action. (sa) (Entered: 11/02/2017
60 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 57 MOTION for Extension of Time to Comp Discovery . (Foley, Eric) (Entered: 11/02/2017)
61 **DEFICIENT**MOTION for Leave to Appeal in forma pauperis by David Andrew Christenson. (Attachments: # 1 Exhibit)(cms) (Entered: 11/03/2017)
62 NOTICE OF DEFICIENT ProSe DOCUMENT: re 61 Motion for Leave to Appeal in forma pauperis. Please see atta letter for steps needed to remedy deficiency. Deficiency remedy due by 11/24/2017. (Attachments: # 1 Application (Entered: 11/03/2017)
63 MOTION for Leave to Appeal in forma pauperis by David Andrew Christenson. (cms) (Entered: 11/06/2017)
64 Minute Entry for proceedings held before Judge Eldon E. Fallon: Telephone Status Conference held on 11/7/2017. I ORDERED that the parties will participate in a telephone status conference on Monday, November 13, 2017 at 1:30 The Court will initiate the call. (cms) (Entered: 11/07/2017)
65 MOTION to Dismiss for Failure to State a Claim by Harry E. Cantrell. Motion(s) will be submitted on 12/6/2017. (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Notice of Submission)(Brustowicz, Celeste) (E 11/07/2017)
66 ANSWER to 1 Complaint, with Jury Demand by Harry E. Cantrell.(Brustowicz, Celeste) (Entered: 11/07/2017)
67 ORDER granting 63 Motion for Leave to Appeal in forma pauperis. Signed by Judge Eldon E. Fallon on 11/7/2017. (Entered: 11/08/2017)
68 Minute Order. Proceedings held before Judge Eldon E. Fallon: Telephone Status Conference held on 11/13/2017. IT ORDERED that the Defendant's 57 MOTION for Extension of Time to Complete Discovery is hereby GRANTED, deadline for completion of class certification discovery is extended thirty days, from November 14, 217 to Decembe 2017. IT IS FURTHER ORDERED that Defendant's 58 MOTION to Expedite is hereby DISMISSED AS MOOT. (

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11/16/2017 11/17/2017 11/20/2017 11/21/2017 11/27/2017
11/28/2017 12/04/2017
12/05/2017
12/05/2017
12/06/2017 12/06/2017 12/11/2017
12/12/2017 12/12/2017 12/15/2017 01/04/2018
01/05/2018 01/08/2018 01/08/2018
01/09/2018

(Entered: 11/13/2017)
69 EXPARTE/CONSENT MOTION Set Settlement Conference by Harry E. Cantrell. Motion(s) referred to Michael N (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Brustowicz, Celeste) (Entered: 11/16/2017)
70 NOTICE by All Plaintiffs of the Status of Discovery on Class Certification. (Foley, Eric) (Entered: 11/17/2017)
71 ORDER,granting 69 MOTION Set Settlement Conference . Settlement Conference set for 11/27/2017 02:00 PM bef Magistrate Judge Michael North. Signed by Magistrate Judge Michael North on 11/17/2017.(clc) (Entered: 11/20/20
72 ORDER SCHEDULING SETTLEMENT CONFERENCE for 11/27/2017 02:00 PM before Magistrate Judge Micha North. Signed by Magistrate Judge Michael North on 11/21/2017.(clc) (Entered: 11/21/2017)
73 Minute Entry for proceedings held before Magistrate Judge Michael North: Settlement Conference held on 11/27/20 Negotiations were productive but unfortunately no resolution of Plaintiffs' claims could be achieved at this time. Fur negotiations will proceed telephonically. (clc) (Entered: 11/28/2017)
74 RESPONSE/MEMORANDUM in Opposition filed by All Plaintiffs re 65 MOTION to Dismiss for Failure to State . (Foley, Eric) (Entered: 11/28/2017)
75 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Response to Plaintiffs' Opposition to Defendants's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can be Granted by Harry E. Cantre (Attachments: # 1 Memorandum in Support, # 2 Proposed Order, # 3 Proposed Pleading)(Brustowicz, Celeste) (Ente 12/04/2017)
78 ORDER of USCA as to 15 Notice of Appeal filed by David Andrew Christenson; ORDERED that the appeal is moo must be dismissed as stated herein by USCA Clerk, 5th Circuit Court. (Attachments: # 1 Letter) (cms) (Entered: 12/07/2017)
79 ORDER of USCA as to 52 Notice of Appeal filed by David Andrew Christenson; ORDERED that the appeal is dism for want of prosecution. The appellant failed to timely file a transcript order form and make financial arrangements w court reporter. (Attachments: # 1 Letter) (cms) (Entered: 12/07/2017)
76 ORDER granting 75 Motion for Leave to File Reply Memorandum. Signed by Judge Eldon E. Fallon on 12/6/2017. (Entered: 12/06/2017)
77 REPLY to Response to Motion filed by Harry E. Cantrell re 65 MOTION to Dismiss for Failure to State a Claim. (c (Entered: 12/06/2017)
80 EXPARTE/CONSENT MOTION for Leave to File Surresponse Memorandum in Opposition to Defendant's Motion Dismiss, rec. doc. 65 by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Pleading, # 2 Proposed Order)(F Eric) Modified text on 12/12/2017 (jls). (Entered: 12/11/2017)
81 ORDER & REASONS that the 65 Motion filed by Defendant Harry E. Cantrell is hereby DENIED. Signed by Judge E. Fallon on 12/11/2017. (cms) (Entered: 12/12/2017)
82 ORDERED that Plaintiffs' 80 Motion for Leave to File is DENIED AS MOOT. Signed by Judge Eldon E. Fallon on 12/12/2017. (cms) (Entered: 12/12/2017)
83 ORDER: IT IS ORDERED that the parties will participate in a telephone status conference on January 5, 2018 at 8:3 The Court will initiate the call. Signed by Judge Eldon E. Fallon on 12/14/2017.(jls) (Entered: 12/15/2017)
84 EXPARTE/CONSENT MOTION for Leave to File Supplemental Memorandum in Support of Class Certification by Caliste, Brian Gisclair. (Attachments: # 1 Proposed Order, # 2 Memorandum in Support of Class Certification, # 3 E A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhi 12 Exhibit J)(Foley, Eric) (Entered: 01/04/2018)
85 Minute Entry for proceedings held before Judge Eldon E. Fallon: Status Conference held on 1/5/2018. (cms) (Entere 01/05/2018)
86 ORDER granting 84 Motion for Leave to File Supplemental Memorandum. Signed by Judge Eldon E. Fallon on 1/8 (cms) (Entered: 01/09/2018)
87 Supplemental Memorandum filed by Adrian Caliste, Brian Gisclair, in Support of 5 MOTION to Certify Class . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(cms) (Entered: 01/09/2018)
88 ORDER RECONVENING SETTLEMENT CONFERENCE for 1/24/2018 02:00 PM before Magistrate Judge Mich North. Signed by Magistrate Judge Michael North on 1/9/2018.(clc) (Entered: 01/09/2018)

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01/24/2018 89 Minute Entry for proceedings held before Magistrate Judge Michael North: Settlement Conference held on 1/24/201 Negotiations were productive but unfortunately no resolution of Plaintiffs claims could be achieved at this time. Fur negotiations will proceed telephonically. (clc) (Entered: 01/25/2018)
02/05/2018 90 **DEFICIENT**NOTICE by All Plaintiffs re 87 Supplemental Memorandum, 5 MOTION to Certify Class noticing submission of Motion to Certify Class on 2/28/18 at 9 a.m. (Foley, Eric) Modified on 2/6/2018 (cms). (Entered: 02/0
02/06/2018 91 ORDERED that the parties will participate in a telephone status conference on February 16, 2018 at 8:30 a.m. The C will initiate the call. Signed by Judge Eldon E. Fallon on 2/6/2018. (cms) (Entered: 02/06/2018)
02/16/2018 92 Minute Entry for proceedings held before Judge Eldon E. Fallon: Telephone Status Conference held on 2/16/2018. ( (Entered: 02/16/2018)
02/19/2018 93 EXPARTE/CONSENT MOTION to Set Briefing Schedule by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Pro Order)(Foley, Eric) Modified text on 2/20/2018 (mmv). (Entered: 02/19/2018)
02/21/2018 94 ORDER granting 93 MOTION to set briefing schedule and the Plaintiffs' 5 MOTION to Certify Class is set for subm on March 14, 2018. Defendant shall submit a memorandum in opposition to Plaintiffs' Motion no later than eight da to the submission date. Signed by Judge Eldon E. Fallon on 2/20/2018. (cms) (Entered: 02/21/2018)
03/05/2018 95 RESPONSE/MEMORANDUM in Opposition filed by Harry E. Cantrell re 5 MOTION to Certify Class . (Attachme Exhibit)(Phayer, Dennis) (Entered: 03/05/2018)
03/13/2018 96 EXPARTE/CONSENT MOTION for Leave to File Reply to Defendant's Memorandum in Opposition to Motion to C Class Action by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Pleading Reply Memo, # 2 Proposed Order)(Foley, Eric) (Entered: 03/13/2018)
03/16/2018 97 ORDER granting 96 Motion for Leave to File Reply Memorandum. Signed by Judge Eldon E. Fallon on 3/16/2018. (Entered: 03/16/2018)
03/16/2018 98 REPLY to Response to Motion filed by Adrian Caliste, Brian Gisclair re 5 MOTION to Certify Class . (clc) (Entered 03/16/2018)
03/16/2018 99 ORDER & REASONS that the Plaintiffs' 5 Motion to Certify Class is GRANTED. Signed by Judge Eldon E. Fallon 3/16/18. (dno) (Entered: 03/16/2018)
03/20/2018 100 EXPARTE/CONSENT MOTION Set Status Conference by Harry E. Cantrell. (Attachments: # 1 Memorandum in S # 2 Proposed Order)(Phayer, Dennis) (Entered: 03/20/2018)
03/21/2018 101 ORDER granting 100 MOTION Set Status Conference. Status Conference set for 3/26/2018 03:30 PM before Judge E. Fallon. Signed by Judge Eldon E. Fallon on 3/21/2018.(cms) (Entered: 03/21/2018)
03/26/2018 102 Minute Entry for proceedings held before Judge Eldon E. Fallon: Status Conference held on 3/26/2018. IT IS ORDE that the parties will participate in a telephone status conference with the Court on Tuesday, 5/29/2018 at 3:30 p.m. T Court will initiate the call. IT IS FURTHER ORDERED that a bench trial is hereby set in the above captioned matte Wednesday, 8/29/2018 at 9:00 a.m. and a pretrial conference is hereby set for Wednesday, 8/15/2018 at 1:30 p.m. (j (Entered: 03/26/2018)
03/27/2018 103 SCHEDULING ORDER: Final Pretrial Conference set for 8/15/2018 01:30 PM before Judge Eldon E. Fallon. Statu Conference set for 5/29/2018 03:30 PM before Judge Eldon E. Fallon. Bench Trial set for 8/29/2018 09:00 AM befo Judge Eldon E. Fallon. All discovery must be completed by 7/16/2018. Signed by Judge Eldon E. Fallon on 3/27/20 (Attachments: # 1 Pretrial Notice Form)(jls) (Entered: 03/27/2018)
03/27/2018 104 EXPARTE/CONSENT MOTION for Settlement Conference by Harry E. Cantrell. Motion referred to Michael North (Attachments: # 1 Memorandum in Support, # 2 Proposed Order)(Phayer, Dennis) (Entered: 03/27/2018)
03/28/2018 105 Correction of Docket Entry by Clerk re 104 MOTION for Settlement Conference; Filing attorney should have chang to 'Y' at the question 'Is this motion to be decided by the Magistrate Judge Y/N?'. This motion will be decided by the magistrate judge. Clerk took corrective action. (cms) (Entered: 03/28/2018)
04/02/2018 106 ORDER re 104 MOTION for Settlement Conference filed by Harry E. Cantrell. ORDERED that the settlement conf will be reconvened on May 1, 2018 at 2:00 p.m. before Magistrate Judge Michael B. North. Signed by Magistrate Ju Michael North on 4/2/2018.(clc) (Entered: 04/03/2018)
05/01/2018 107 Minute Entry for proceedings held before Magistrate Judge Michael North: Settlement Conference held on 5/1/2018 Negotiations were again productive but unfortunately no resolution of Plaintiffs' claims could be achieved at this tim Further negotiations will proceed telephonically. (clc) (Entered: 05/07/2018)
05/14/2018 108 EXPARTE/CONSENT MOTION to Withdraw Celeste Brustowicz as Attorney by Harry E. Cantrell. (Attachments: Proposed Order)(Phayer, Dennis) (Entered: 05/14/2018)

Case: 2:17-cv-6197 As of: 10/17/2019 10:24 AM CDT 8 of 10
05/15/2018 109 ORDER GRANTING 108 Motion to Withdraw Counsel. Signed by Judge Eldon E. Fallon on 5/15/2018. (mmv) (En 05/15/2018)
05/29/2018 110 Minute Entry for proceedings held before Judge Eldon E. Fallon: A Telephone Status Conference was held on 5/29/ (dno) (Entered: 05/29/2018)
06/12/2018 111 **DEFICIENT** EXPARTE/CONSENT MOTION for Leave to File Excess Pages in Memorandum in support of M for Summary Judgment by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading for Summary Judgment, # 3 Memorandum in Support, # 4 Statement of Contested/Uncontested Facts, # 5 Exhibit 1 Pls' First App. Hr'g, # 6 Exhibit 2 Decl. of Adrian Caliste, # 7 Exhibit 3 Decl. of Brian Gisclair, # 8 Exhibit 4 Dep. o Magistrate Cantrell, # 9 Exhibit 5 Tr. of First App. Hr'g, # 10 Exhibit 6 Tr. of First App. Hr'g, # 11 Exhibit 7 Tr. of F App. Hr'g, # 12 Exhibit 8 Response to Req. for Admiss., # 13 Exhibit 9 Response to SDT to Judicial Admin. Kazik, Notice of Manual Attachment Exs. 10 and 11, # 15 Exhibit 12 NO City Bus. Art.)(Foley, Eric) Modified on 6/13/20 (jeg). (Entered: 06/12/2018)
06/13/2018 112 **ERROR− DOCUMENT SHOULD HAVE BEEN ATTACHED TO REC DOC 111** NOTICE by Adrian Caliste Gisclair re Notice of Deficient Filing,, Notice of Submission for Plaintiffs' Summary Judgment Motion. (Foley, Eric) Modified on 6/14/2018 (jeg). (Entered: 06/13/2018)
06/13/2018 113 EXPARTE/CONSENT MOTION for Leave to File Excess Pages in Memorandum in Support of Motion for Summar Judgment by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading Motion for Summary Judgment, # 3 Memorandum in Support, # 4 Statement of Contested/Uncontested Facts, # 5 Notice of Submission, # 6 Exhibit 1−Tr. of Pls.' First App. Hr'g, # 7 Exhibit 2−Caliste Decl., # 8 Exhibit 3−Gisclair Decl., # 9 4−Cantrell Deposition, # 10 Exhibit 5−First App. Tr. 12/27/16, # 11 Exhibit 6. First App. Tr. 6/12/17, # 12 Exhibit 7 App. Tr. 2/6/17, # 13 Exhibit 8−Resp. to RFA, # 14 Exhibit 9−Kazik Resp. to SDT, # 15 Notice of Manual Attachm 16 Exhibit 12−N.O. City Bus. art.)(Foley, Eric) (Entered: 06/13/2018)
06/14/2018 114 Correction of Docket Entry by Clerk re 112 Notice (Other). **Document 112 was incorrectly filed as a separate doc instead of an attachment todocument 111. Filing attorney has re−filed at Rec doc 113. No further action is needed.** (Entered: 06/14/2018)
06/14/2018 115 ORDER granting 113 Motion for Leave to File Motion for Summary Judgment in Excess Pages. Signed by Judge El Fallon on 6/14/2018. (clc) (Entered: 06/15/2018)
06/14/2018 116 MOTION for Summary Judgment by Adrian Caliste, Brian Gisclair. Motion(s) will be submitted on 7/11/2018. (Attachments: # 1 Memorandum in Support, # 2 Statement of Contested/Uncontested Facts, # 3 Notice of Submissio Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Notice of Manual Attachment, # 14 Exhibit 12)(clc) (Additional attachment(s) added per Order, rec. 124 on 6/29/2018: # 15 Correct Exhibit 5) (mmv). (Entered: 06/15/2018)
06/15/2018 117 Manual Attachment Received re 116 MOTION for Summary Judgment filed by Brian Gisclair, Adrian Caliste. (dno (Entered: 06/18/2018)
06/26/2018 118 **DEFICIENT** RESPONSE/MEMORANDUM in Opposition filed by Harry E. Cantrell re 116 MOTION for Sum Judgment . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Phayer, Dennis) Modified on 6/27/2018 (jeg). (Entered: 06/26/2018)
06/26/2018 119 DEFICIENT DOCUMENT − MOTION for Summary Judgment by Harry E. Cantrell. Motion(s) will be submitted o 7/11/2018. (Attachments: # 1 Memorandum in Support, # 2 Exhibit A − Memorandum in Support of Motion for Sum Judgment, # 3 Statement of Contested/Uncontested Facts, # 4 Exhibit A − Statement of Uncontested Material Facts, Notice of Submission)(Phayer, Dennis) Modified on 6/28/2018 (dno). (Entered: 06/26/2018)
06/28/2018 120 RESPONSE/MEMORANDUM in Opposition filed by Harry E. Cantrell re 116 MOTION for Summary Judgment . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Statement of Contested/Uncontested Facts)(Phayer, Dennis) (Entered: 06/28/2018)
06/28/2018 121 MOTION for Summary Judgment by Harry E. Cantrell. Motion(s) will be submitted on 7/11/2018. (Attachments: # Memorandum in Support, # 2 Exhibit A− Motion for Summary Judgment, # 3 Exhibit B − Motion for Summary Jud # 4 Exhibit C − Motion for Summary Judgment, # 5 Exhibit D − Motion for Summary Judgment, # 6 Statement of Contested/Uncontested Facts, # 7 Exhibit A − Statement of Uncontested Material Facts, # 8 Notice of Submission)(P Dennis) (Attachment 4 replaced on 6/29/2018) (jeg). (Entered: 06/28/2018)
06/28/2018 122 EXPARTE/CONSENT MOTION to Amend/Correct 116 MOTION for Summary Judgment by substituting attached document as Ex. 5 [116−8] by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Order, # 2 Exhibit Correc Exhibit 5)(Foley, Eric) (Entered: 06/28/2018)
06/29/2018 123 Correction of Docket Entry by Clerk re 121 MOTION for Summary Judgment . **Image filed sideways. Clerk has corrected image of attachment 4, pages 3 and 14. Please adjust scanner for future filings. No further action necessary (jeg) (Entered: 06/29/2018)

Case: 2:17-cv-6197 As of: 10/17/2019 10:24 AM CDT 9 of 10
06/29/2018 124 ORDER GRANTING 122 Motion to Substitute Exhibit to Motion for Summary Judgment. Signed by Judge Eldon E Fallon on 6/29/2018. (mmv) (Entered: 06/29/2018)
07/10/2018 125 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Support of Summary Judgment 116 and t Exceed Page Limits by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading)(Fo Eric) (Entered: 07/10/2018)
07/10/2018 126 EXPARTE/CONSENT MOTION for Leave to File Plaintiffs' Opposition to Defendant's Motion for Summary Judgm 121 by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading Plaintiffs' Reply to Defendant's Opposition to Summary Judgment and Opposition to Defendant's Motion for Summary Judgment, # 3 Proposed Pleading Plaintiffs' Statement of Contested Facts)(Foley, Eric) (Entered: 07/10/2018)
07/11/2018 127 ORDER GRANTING 125 Motion for Leave to File Reply Memorandum in Support of Summary Judgment and to E Page Limits. Signed by Judge Eldon E. Fallon on 7/11/2018. (mmv) (Entered: 07/11/2018)
07/11/2018 128 REPLY to Response to Motion filed by Adrian Caliste, Brian Gisclair re 116 MOTION for Summary Judgment. (mm (Entered: 07/11/2018)
07/11/2018 129 ORDER GRANTING 126 Motion for Leave to File Memorandum in Opposition to Defendant's Motion for Summar Judgment. Signed by Judge Eldon E. Fallon on 7/11/2018. (mmv) (Entered: 07/11/2018)
07/11/2018 130 RESPONSE/MEMORANDUM in Opposition filed by Adrian Caliste, Brian Gisclair re 121 MOTION for Summary Judgment . (Attachments: # 1 Statement of Contested/Uncontested Facts)(mmv) (Entered: 07/11/2018)
08/06/2018 131 ORDER & REASONS that the Plaintiffs' 116 Motion for Summary Judgment is GRANTED and the Court provides declaratory relief as set forth in order. IT IS FURTHER ORDERED that the Defendant's 121 Motion for Summary Judgment is DENIED. Signed by Judge Eldon E. Fallon on 8/6/18. (dno) (Entered: 08/06/2018)
08/14/2018 132 DECLARATORY JUDGMENT: ORDERED, ADJUDGED AND DECREED that there be judgment in favor of pla Adrian Caliste, Brian Gisclair, both individually and on behalf of all others similarly situated, and against defendant E. Cantrell, Magistrate Judge of Orleans Parish Criminal District Court as stated fully herein. FURTHER ORDERED this matter be Dismissed with prejudice, with each party to bear his or its own costs. Signed by Judge Eldon E. Fallo 8/13/2018.(clc) (Entered: 08/14/2018)
08/21/2018 133 NOTICE OF APPEAL by Harry E. Cantrell as to 132 Judgment, 44 Order and Reasons, 81 Order and Reasons, 131 and Reasons. (Filing fee $ 505, receipt number 053L−7071127.) (Phayer, Dennis) Modified text on 8/22/2018 (jeg). (Entered: 08/21/2018)
08/27/2018 134 USCA Case Number 18−30954 appealed to USCA, 5th Circuit for 133 Notice of Appeal filed by Harry E. Cantrell. (Entered: 08/27/2018)
09/05/2018 135 APPEAL TRANSCRIPT REQUEST by Harry E. Cantrell re 133 Notice of Appeal. (Transcript is unnecessary for ap purposes) (Phayer, Dennis) (Entered: 09/05/2018)
11/19/2018 136 Electronic Record on Appeal Access Granted to Attorney Mindy Duffourc re 133 Notice of Appeal. USCA Case Nu 18−30954. Instructions for access are posted on http://www.ca5.uscourts.gov/docs/default−source/forms/instructions−for−electronic−record−download−feature−of− (adp) (Entered: 11/19/2018)
12/27/2018 137 Electronic Record on Appeal Access Granted to Jeff Rowes re 133 Notice of Appeal. USCA Case Number 18−3095 Instructions for access are posted on http://www.ca5.uscourts.gov/docs/default−source/forms/instructions−for−electronic−record−download−feature−of− (adp) (Entered: 12/27/2018)
03/15/2019 138 MOTION for Permanent Injunction by Adrian Caliste, Brian Gisclair. Motion(s) will be submitted on 4/3/2019. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9)(Foley, Eric) (Attachments 3−11 replaced on 3/18/2019) (jeg). Modified text on 3/18/2019 (jeg). (Entered: 03/15/2019)
03/15/2019 139 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record James W. Craig by Adrian Caliste, Brian Gisclair. (Attachments: # 1 Proposed Order)(Foley, Eric) (Entered: 03/15/2019)
03/18/2019 140 Correction of Docket Entry by Clerk re 138 MOTION for Permanent Injunction. **Exhibits on incorrect sized paper Rule 10.1E states 'All papers drafted for filing in this court shall be on 8−1/2 by 11 inch paper.' Clerk has reduced im No further action needed.** (jeg) (Entered: 03/18/2019)
03/18/2019 141 ORDER granting 139 Motion to Enroll as Counsel of Record for Attorney James William Craig for Adrian Caliste a Brian Gisclair. Signed by Judge Eldon E. Fallon on 3/18/2019. (jeg) (Entered: 03/19/2019)

Case: 2:17-cv-6197 As of: 10/17/2019 10:24 AM CDT 10 of 10
03/25/2019 142 EXPARTE/CONSENT MOTION to Continue Submission Date on Motion for Injunctive Relief by Harry E. Cantrell (Attachments: # 1 Proposed Order)(Phayer, Dennis) Modified text/submission date on 3/26/2019 (jeg). (Entered: 03/25/2019)
03/26/2019 143 Correction of Docket Entry by Clerk re 142 MOTION to Continue Submission Date on Motion for Injunctive Relief. **Filing attorney should have selected 'Yes' at the question 'Is this an Exparte/Consent Motion Y/N?'. Exparte/Cons Motions are not set for submission. Clerk modified docket text to reflect 'Exparte' and remove submission date. No f action necessary.** (jeg) (Entered: 03/26/2019)
03/26/2019 144 ORDER GRANTING 142 MOTION to Continue Submission Date on 138 MOTION for Permanent Injunction. The currently set submission date of April 3, 2019 is hereby continued and reset for April 17, 2019. Signed by Judge Eld Fallon on 3/26/2019.(jeg) (Entered: 03/26/2019)
03/27/2019 145 EXPARTE/CONSENT MOTION to Enroll as Counsel of Record by Harry E. Cantrell. (Attachments: # 1 Proposed Order)(Phayer, Dennis) (Entered: 03/27/2019)
03/29/2019 146 ORDER GRANTING 145 Motion to Enroll as Counsel of Record. Attorney Mindy Nunez Duffourc added for Harry Cantrell. Signed by Judge Eldon E. Fallon on 3/28/2019. (jeg) (Entered: 03/29/2019)
04/08/2019 147 EXPARTE/CONSENT MOTION to Continue Submission Date on Motion for Injunctive Relief by Harry E. Cantrell (Attachments: # 1 Proposed Order)(Phayer, Dennis) (Entered: 04/08/2019)
04/08/2019 148 ORDER GRANTING 147 MOTION to Continue Submission Date on Motion for Injunctive Relief filed by Harry E. Cantrell. The 138 MOTION for Permanent Injunction, currently set submission date of 4/17/2019, is hereby continu 5/1/2019. Signed by Judge Eldon E. Fallon on 4/8/2019.(jeg) (Entered: 04/08/2019)
04/22/2019 149 EXPARTE/CONSENT MOTION to Continue Submission Date on Motion for Injunctive Relief by Harry E. Cantrell (Attachments: # 1 Proposed Order)(Phayer, Dennis) (Entered: 04/22/2019)
04/22/2019 150 ORDER GRANTING 149 MOTION to Continue Submission Date on Motion for Injunctive Relief. The currently se submission date of 5/1/2019 for 138 MOTION for Permanent Injunction is hereby continued to 5/15/2019. Signed b Eldon E. Fallon on 4/22/2019.(jeg) (Entered: 04/22/2019)
05/01/2019 151 Electronic Record on Appeal Access Granted to James William Craig re 133 Notice of Appeal. USCA Case Numbe 18−30954. Instructions for access are posted on http://www.ca5.uscourts.gov/docs/default−source/forms/instructions−for−electronic−record−download−feature−of− (adp) (Entered: 05/01/2019)
05/06/2019 152 EXPARTE/CONSENT MOTION to Continue Submission Date on Motion for Injunctive Relief by Harry E. Cantrell (Attachments: # 1 Proposed Order)(Phayer, Dennis) (Entered: 05/06/2019)
05/06/2019 153 ORDER GRANTING 152 MOTION to Continue Submission Date on Motion for Injunctive Relief. The current set submission date of 5/15/2019 for 138 MOTION for Permanent Injunction is hereby continued to 5/29/2019. Signed Judge Eldon E. Fallon on 5/6/2019.(jeg) (Entered: 05/06/2019)
05/20/2019 154 EXPARTE/CONSENT MOTION to Continue Submission Date on Motion for Injunctive Relief by Harry E. Cantrell (Phayer, Dennis) (Entered: 05/20/2019)
05/22/2019 155 ORDER GRANTING 154 MOTION to Continue Submission Date on 138 Motion for Injunctive Relief. The current submission date of 5/29/2019, is hereby continued to 6/12/2019. Signed by Judge Eldon E. Fallon on 5/22/2019.(jeg (Entered: 05/22/2019)
06/12/2019 156 EXPARTE/CONSENT Joint MOTION for Entry of Consent Judgment by Adrian Caliste, Brian Gisclair, Harry E. C (Attachments: # 1 Proposed Order)(Foley, Eric) Modified text on 6/13/2019 (am). (Entered: 06/12/2019)
06/13/2019 157 Correction of Docket Entry by Clerk re 156 Joint MOTION for Entry of Consent Judgment.**Filing attorney did no additional filer(s) in the blank text box on the docket text screen. Clerk added filer(s).** (am) (Entered: 06/13/2019)
06/13/2019 158 ORDER re 156 Joint Motion for Entry of Consent Judgment: It is hereby ORDERED that, by agreement of the Parti Magistrate Harry E. Cantrell will use the following protocol when determining the conditions of pretrial release for arrestees appearing before him and that use of the following protocol complies with this Court's 08/14/2018 Declara Judgment, as set forth in document. It is ORDERED that Plaintiffs' previously filed 138 motion for injunctive relief DISMISSED WITHOUT PREJUDICE AS MOOT. It is further ORDERED that this case shall be administratively c subject to the continuing jurisdiction of this Court to enforce compliance with the terms of this Order. Signed by Jud Eldon E. Fallon on 06/13/2019. (am) (Entered: 06/13/2019)

 
 Case 2:17-cv-06197-EEF-MBN Document 1 Filed 06/27/17 Page 1 of 27

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE and BRIAN GISCLAIR, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
HARRY E. CANTRELL, Magistrate Judge of Orleans Parish Criminal District Court,
Defendant.

Case No. Complaint-Class Action

CLASS ACTION COMPLAINT 1. Defendant Magistrate Judge Cantrell is responsible for setting bail for persons arrested in Orleans Parish. Defendant Cantrell consistently and unlawfully imposes secured financial conditions of release in an amount that arrestees cannot afford without any inquiry into or findings concerning the arrestee’s ability to pay. He routinely states that he will not consider imposition of non-financial alternative conditions of release. As a result, the money-based orders of post-arrest release that he imposes constitute de facto orders of pretrial detention for those unable to pay — orders that are issued without the legal and factual findings and procedures required for a valid order of pretrial detention. 2. Moreover, Defendant Cantrell has an institutional financial conflict of interest in every secured money bond that he imposes because he acts both as a supposedly neutral judicial officer and as an executive responsible for managing the funds generated by each bail order that he sets. Louisiana law provides that if (and only if) an arrestee uses a commercial surety, the

Case 2:17-cv-06197-EEF-MBN Document 1 Filed 06/27/17 Page 2 of 27
judges of the Orleans Parish Criminal District Court receive 1.8% of the amount of that bond into the court’s General Fund, which Defendant Cantrell and the other judges control. As a result Defendant Cantrell refuses to allow arrestees to post cash bail. He instead requires that financial conditions be paid through a for-profit bail bond (“a commercial surety”), and routinely in amounts larger than $2,500.
3. These policies and practices result in imminent and ongoing violations of fundamental rights. Plaintiffs, on behalf of themselves and a class of similarly situated arrestees, seek a declaration that Defendant Cantrell’s conduct violates the Fourteenth Amendment to the United States Constitution.
Jurisdiction and Venue 4. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. §§ 2201–02, and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 5. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 6. Named Plaintiff Adrian Caliste is a 55-year-old man currently in the custody of the Orleans Parish Sheriff’s Office. On June 20, 2017, Mr. Caliste appeared before Defendant Cantrell in the Magistrate section of Orleans Parish Criminal District Court. Defendant Cantrell imposed a secured bond Mr. Caliste cannot afford to pay as a condition of release. He remains in custody solely because he cannot afford to pay the amount of money required for his release. Mr. Caliste represents himself as an individual and a Class of similarly situated people who are all subject to the Defendant’s post-arrest money-based detention scheme.
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7. Named Plaintiff Brian Gisclair is a 33-year-old man currently in the custody of the Orleans Parish Sheriff’s Office. On June 20, 2017, Mr. Gisclair appeared before Defendant Cantrell in the Magistrate section of Orleans Parish Criminal District Court. Defendant Magistrate Cantrell imposed upon Mr. Gisclair a secured bond he cannot afford to pay as a condition of his release. He remains in custody solely because he cannot afford to pay the amount of money required for his release. Mr. Gisclair represents himself as an individual and a Class of similarly situated people who are all subject to the Defendant’s post-arrest money-based detention scheme.
8. Defendant Harry E. Cantrell is the elected Magistrate Judge for Orleans Parish Criminal District Court. Defendant Cantrell has statutory responsibility for setting bail and determining the conditions of release for pretrial arrestees in Orleans Parish. Defendant Cantrell sets bail upon arrest, prior to the issuance of an indictment, prior to the acceptance of charges by the Orleans Parish District Attorney, and before a criminal proceeding is assigned to a particular section of the Criminal District Court. He is responsible for determining and modifying conditions of release on an ongoing basis until a case is assigned to a Section of the Criminal District Court. In concert with his fellow judges of the Criminal District Court, Defendant Cantrell acts in an executive capacity to control the expenditures of the Criminal District Court’s funds. Defendant Cantrell is sued in his individual capacity and in his official capacity as the presiding Magistrate Judge for the Criminal District Court.
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Facts A. Plaintiffs’ Continuing Detention Under Orders of Defendant Cantrell. Adrian Caliste
9. Plaintiff Adrian Caliste is a retired laborer who has lived his entire life in New Orleans. Most of his family, including his elderly father, siblings, children, and grandchildren live in New Orleans.
10. Mr. Caliste’s primary source of income is his monthly Social Security retirement benefit.
11. Mr. Caliste spends several days a week as a caretaker for his 92-year-old father. 12. Mr. Caliste was arrested on June 19, 2017, on allegations of possession of drugs, possession of drug paraphernalia, and traffic violations. 13. On June 20, 2017, Mr. Caliste appeared in the Magistrate Section of the Orleans Parish Criminal District Court. 14. Defendant Cantrell asked Mr. Caliste if he could afford a lawyer. When Mr. Caliste said that he could not, Cantrell appointed the office of the Orleans Public Defender to represent Mr. Caliste. 15. Magistrate Cantrell made no further inquiry into Mr. Caliste’s ability to afford any particular amount of secured bail or whether non-financial conditions of release would be appropriate before imposing a total $5,000 secured bail upon Mr. Caliste. On two misdemeanor charges, Defendant Cantrell set Mr. Caliste’s bail at $2,500 per charged offense. 16. Mr. Caliste’s public defender argued for Mr. Caliste to be released on his own recognizance, but Magistrate Cantrell imposed a secured money bail.
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17. Mr. Caliste can afford neither the $5,000 bail nor the 12–13% of that total that a bail bondsman would charge to act as a surety. As a result, he waits in jail until he receives his next retirement benefit, which he hopes his family will use to pay a for-profit bonding company.
18. Mr. Caliste remains in the custody of the Orleans Parish Sheriff’s Office. 19. Neither Magistrate Cantrell nor any judge of the Orleans Parish Criminal District court has made a finding that Mr. Caliste poses either a substantial risk of flight or an imminent danger to the community. Brian Gisclair 20. Plaintiff Brian Gisclair is a father of three who was laid off from his full-time job about four months ago. Since that time, he has been working sporadically for temporary staffing agencies. 21. Mr. Gisclair is a resident of Westwego, Louisiana, where he has lived for all of his life. He shares custody of his three children. 22. Mr. Gisclair was arrested on June 19, 2017, on a single nonviolent misdemeanor charge of possession of drugs. 23. On June 20, 2017, Mr. Gisclair appeared before Magistrate Cantrell, who appointed the Orleans Public Defender to represent Mr. Gisclair because of his indigence. 24. Mr. Gisclair’s public defender argued that he should be released on his own recognizance, but Magistrate Cantrell instead imposed a $2,500 bail. 25. Magistrate Cantrell ordered this $2,500 secured money bail without inquiry into Mr. Gisclair’s ability to afford this amount of bail. 26. Magistrate Cantrell did not make any inquiry into whether non-financial conditions of release would be suitable to ensure Mr. Gisclair’s return to court.
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27. Mr. Gisclair cannot afford to pay his $2,500 bail, nor can he afford the 12–13% fee a commercial surety would charge him.
28. As a result of his incarceration, Mr. Gisclair has already missed a previously scheduled job interview.
29. Mr. Giclair remains in the custody of the Orleans Parish Sheriff’s Office 30. Neither Magistrate Cantrell nor any judge of the Orleans Parish Criminal District court has made a finding that Mr. Gisclair poses either a substantial risk of flight or an imminent danger to the community.
B. Defendant Cantrell’s Practice of Imposing Secured Financial Conditions of Release Without Conducting Any Inquiry into Ability to Pay or Consideration of Non-financial Alternatives. 31. Defendant Cantrell regularly sets a $2,500 minimum secured money bond
irrespective of the particular facts in the case before him, and without regard to the circumstances surrounding the arrestee appearing before him. He routinely refuses to entertain arguments for a lower financial condition of release and informs regularly appearing defense lawyers not to even make them. Defendant Cantrell frequently informs defense attorneys that these bail settings “are not an adversarial hearing.”
32. Defense counsel seeking alternative non-financial conditions of release or monetary bonds in amounts lower than $2,500 have been advised explicitly that Defendant Cantrell does not set financial conditions of release below $2,500:
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Tr. of Hr’g at 3:29, State v. Mishana Johnson, No. M-559675 (Orleans Parish Crim. Dist. Ct. Dec. 27, 2016).
33. In another recent case, an arrestee was accused of “negligent injuring” in the cleaning of his gun. All involved parties agreed that the injuring was an accident. The accused was a chef at a local university, responsible for supporting his fiancé and ten-year-old daughter. The defense sought a monetary bond of $500. Defendant Cantrell stated,
Defendant Cantrell then imposed a secured money bond in the amount of $15,000. Tr. of Hr’g at 3:19–29, State v. Jermaine Thomas, No. M-559871 (Orleans Parish Crim. Dist. Ct. Jan. 5, 2017).
34. And in the case of a woman accused of theft,
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Tr. of Hr’g at 3:11–13, State v. Chinette Armstead, No. M-559278, (Orleans Parish Crim. Dist. Ct. Dec. 19, 2016).
35. Defendant Cantrell refuses to consider defense arguments on bail amounts, in flagrant violation of the Due Process Clause:
Tr. of Hr’g at 4:2–17, State v. Angie Williams, No. M-561958 (Orleans Parish Crim. Dist. Ct. March 20, 2017).
36. In one recent case of a deaf and mute woman with no prior criminal history charged with solicitation of prostitution and believed by Judge Cantrell to be homeless, Defendant Cantrell
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Case 2:17-cv-06197-EEF-MBN Document 1 Filed 06/27/17 Page 9 of 27 again confirmed that he would set the bond at $2,500 regardless of any evidence presented by defense counsel:
Tr. of Hr’g at 3:1–21, State v. Lakiesha Myles, No. M-561626 (Orleans Parish Crim. Dist. Ct. March 9, 2017).
37. Despite being told that the court would refuse to consider the evidence, the woman’s public defender insisted on putting information forward to dispute the facts alleged by police and to show that the accused had, in fact, lived in New Orleans with her mother and three
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Case 2:17-cv-06197-EEF-MBN Document 1 Filed 06/27/17 Page 10 of 27 children for seven years. True to his word, Defendant Cantrell refused to consider those circumstances before requiring a secured monetary amount that she could not afford.
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Id. at 4:7–29, 5:1–5. C. Defendant Cantrell’s Policy of Refusing to Consider Non-financial Conditions of Release. 38. Defendant Cantrell often arbitrarily refuses to consider Releases on Recognizance
(“ROR”) or release on other non-financial conditions of release. In another recent case, he declared a person ineligible for consideration for ROR (contrary to state and federal law), asserting that the man was involved in a domestic dispute, despite there being no evidence for that claim. Tr. of Hr’g at 2:11–13, 4:12–16, State v. Eddie Green, No. M-561572, (Orleans Parish Crim. Dist. Ct. March 6, 2017).
39. Not only does Defendant Cantrell refuse to consider non-financial alternatives for those unable to pay and refuse to set lower financial conditions for those who cannot afford $2,500, but Defendant Cantrell also threatens to hold defense counsel in contempt of court for advocating for non-financial conditions or a lower money bond amount. Defense counsel is placed in the impossible position of having to weigh her own personal freedom against her obligation to advocate for her client’s constitutional right to a meaningful bail hearing. The threat of jail time in retaliation for an attorney’s basic oral advocacy would have a chilling effect on even the most zealous advocate and constitutes a gross abuse of authority.
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Tr. of Hr’g at 4–5, State v. Gavin P. Morgan, No. M-559682 (Orleans Parish Crim. Dist. Ct. Dec. 27, 2016).
40. On June 20, 2017, Magistrate Cantrell threatened a defense lawyer with contempt in response to his advocacy for a client to be released on recognizance. In addition to threatening the attorney with contempt, Magistrate Cantrell went so far as to threaten to revoke a release on recognizance that he’d granted to another of that attorney’s clients earlier in the day.
D. Defendant Cantrell’s Institutional Financial Interest to Require High Dollar Commercial Surety Bonds. 41. The judges of the Orleans Parish Criminal District Court depend on approximately
$1 million per year from the fees assessed on for-profit surety bonds that they impose. 42. In Orleans Parish, the Sheriff collects a $3.00 fee on every $100.00 of liability
underwritten by a commercial surety (bond company). La. R.S. § 22:822(A)(2). 43. Of the $3.00 fee collected on every $100.00 of liability underwritten by a
commercial surety, i. $1.00 is allocated directly to Orleans Parish Criminal District Court to be managed by the judges.
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ii. $2.00 is divided as follows: 1. 40% to Orleans Parish Criminal District Court Judicial Expense Fund; 2. 20% to Orleans Parish Sheriff’s Office; 3. 20% to Orleans Parish District Attorney; 4. 20% to Orleans Parish Office of the Indigent Defender.
La. R.S. §§ 22:822(B)(3), 13:1381.5. 44. No such fee is levied against arrestees who utilize secured personal sureties, post a
cash bail, or are released on recognizance or other non-financial conditions of release. 45. The Orleans Parish Criminal District Court deposits the 1.8% fee it receives from
commercial surety bonds into the court’s General Fund, from which it pays for the salaries and benefits of court staff, travel for judicial conferences, office supplies, phone service, building maintenance, legal research, and various other day-to-day expenses.
46. In 2013, an accountant for the Criminal District Court addressed the New Orleans City Council, stating that the revenue from the 1.8% bond fee was “critical” to the Court’s ability to meets its monthly payroll expenses.
47. In recent years, this 1.8% fee on commercial surety bonds has accounted for 20– 25% of the court’s General Fund, or about one million dollars. Thus, a significant portion of the court’s revenue depends upon criminal defendants posting bond through commercial sureties.
48. In 2015, 97% of those defendants in Criminal District Court who were assessed a financial bail obtained their freedom through a commercial surety. Only 3% paid their full bail in cash.
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49. Spending from the General Fund is controlled by the judges of the court en banc, in which Defendant Cantrell has an equal vote.
50. The deposit of the 1.8% fee on commercial surety bonds into the General Fund for Orleans Parish Criminal District Court creates a conflict of interest for Magistrate Judge Cantrell.
51. Defendant Cantrell’s office directly benefits from the collection of the 1.8% fee. The infrastructure of his court—from the salary of his staff to the paper in his printer—depends upon the continued generation of money from for-profit commercial surety fees, which are entirely dependent on his judicial decisions. As an executive who manages these expenditures along with the other judges, Defendant Cantrell’s dual executive and judicial roles destroy the judicial neutrality that is a vital component of the American legal system.
E. Defendant Cantrell’s Policy of Refusing to Accept Secured Money Bail That Does Not Generate Revenue for the Court. 52. Defendant Cantrell routinely refuses to set cash bonds. He instead requires
individuals to rely upon a commercial surety, thereby ensuring that his court can generate 1.8% of the bail amount in fees that he and the other judges manage as executives.
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Tr. of Hr’g at 3:1–21, State v. Jesus Medel, No. M-561052 (Orleans Parish Crim. Dist. Ct. Feb. 16, 2017) and State v. Lorenzo Cortrina, No. M-561047 (Orleans Parish Crim. Distr. Ct. Feb. 16, 2017).1
1 A typo in the transcript misidentifies Mr. Lorenzo Cortrina as “Mr. Cartena.” 16

Case 2:17-cv-06197-EEF-MBN Document 1 Filed 06/27/17 Page 17 of 27
See also,
Tr. of Hr’g at 6:11–17, State of Louisiana v. Joseph Dunckley, No. M-559319 (Orleans Parish Crim. Dist. Ct. December 19, 2016).
53. Defendant Cantrell’s policy and practice of refusing to consider ability to pay, refusing to consider non-financial alternatives, imposing de facto orders of detention without the process and legal standards required, refusing to set any secured money bond amount below $2,500, and institutional financial conflict of interest violate the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Constitution.
54. The named Plaintiffs and the class they represent are all people that Defendant Cantrell has deemed appropriate for immediate release. They would each be released immediately if they were able to pay a for-profit surety the amount of money required by Defendant Cantrell.
55. At no point does Defendant Cantrell conduct any proceedings concerning whether a person has the ability to pay the amount of money that he requires. Nor does he make any inquiry into or findings concerning whether there is any other non-financial condition or combination of conditions that could reasonably assure an arrestee’s appearance of the safety of the community. Nor does he conduct any of the proceedings required for a valid order of pretrial detention,
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including an adversarial hearing at which findings concerning a person’s danger to the community or risk of flight are made pursuant to clearly defined legal standards required by federal law.
56. Under Defendant Cantrell’s money-based practices, those arrestees wealthy enough to pay are released almost immediately after Defendant Cantrell sets their bail. Some poorer arrestees eventually make arrangements with private bail bond companies, after spending days or weeks in jail. And many others, who are too poor to come up with enough money, are left to languish in jail until the resolution of their case.
F. Defendant Cantrell’s Bail Practices as an Ineffective Means of Ensuring Public Safety or Criminal Defendants’ Appearance at Trial. 57. The empirical evidence shows that there is no relationship between requiring
secured money bail as a condition of release and defendants’ rates of appearance in court. 58. Other jurisdictions, including the City of New Orleans Municipal Court, employ
non-monetary conditions of release, including unsecured or “signature” bonds, stay-away orders, curfews, or home detention.
59. Other courts also employ less restrictive methods of maximizing public safety and court appearances when necessary to guard against a particular risk, including unsecured bond, reporting obligations, phone and text message reminders of court dates, rides to court for those without transportation or a stable address, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
60. Defendant Cantrell is permitted by state law to use these alternatives but, as a matter of routine, chooses not to consider them for impoverished arrestees.
61. Defendant Cantrell’s policies have ramifications for the entire Orleans community and criminal justice system.
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62. Pretrial detention causes unnecessary lost employment, lost housing and shelter,
and creates instability in care for dependent children and parents. It also unnecessarily subjects
detained individuals to violent conditions in the Orleans jail, causing harm to arrestees’ physical
and mental health. This increases community costs and make a person less stable and healthy upon
their ultimate release.
63. Individuals who are detained pretrial — instead of released on money bail or on a
personal bond — have worse case outcomes in every measurable way, even when controlling for
all other factors.2
64. Setting a secured money bail without an inquiry into ability to pay and in an amount
higher than a person can afford by definition defeats the purpose of money bail — to incentivize a
person to return to court — and removes any legitimate (let alone compelling) state interest in the
setting of a financial condition. Nor is setting money bail without findings concerning ability to
2 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), available at https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; Arpit Gupta, et al., The Heavy Costs of High Bail: Evidence from Judge Randomization 45 J. Legal Stud. 471, 472, 487 (2016) (finding a 12 percent increase in the likelihood of conviction when money bail is imposed); Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stanford L. Rev. 711 (2017) (finding that misdemeanor pretrial defendants detained in Harris County, Texas, were 25% more likely to plead guilty, 43% more likely to be sentenced to jail, and had sentences more than twice as long as those defendants who were released pretrial); Lise Olson, Study: Inmates Who Can’t Afford Bond Face Tougher Sentences Houston Chron., Sept. 15, 2013, available at http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-Inmates-who-can-t-afford-bond-facetougher-4817053.php (discussing Carlos Mathis, an African-American man, who was held in jail for seven months on minor drug and theft charges because he could not afford money bail, and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and the Effects of Pretrial Services Programs (Mar. 11, 2013), available at http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial %20and%20Sentencing%20and%20the%20Effects%20of%20Pretrial%20Services%20Programs%20%20NCCD%202013.pdf; Cynthia E. Jones, “Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013); Tina L. Freiburger, et al., The Impact of Race on the Pretrial Decision, American Journal of Criminal Justice (2010), available at http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_ Impact_of_Race.pdf; The Hidden Costs of Pretrial Detention at 3, 19 (Nov. 2013), available at http://www.pretrial.org/download/research/The%20Hidden%20Costs%20of%20Pretrial%20Detention%20%20LJAF%202013.pdf (studying 153,407 defendants and finding that “when held 2–3 days, low risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours”); Arnold Foundation, Pretrial Criminal Justice Research Summary 5 (2013), available at: http://www.arnoldfoundation.org/sites/default/files/pdf/LJAF-Pretrial-CJ-Research-brief_FNL.pdf (finding that “low-risk defendants held 2–3 days were 17 percent more likely to commit another crime within two years” and that those detained “4–7 days yielded a 35 percent increase in re-offense rates.”).
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pay the most narrowly tailored way to meet any other legitimate or compelling government interest.
Class Action Allegations 65. The named Plaintiffs brings this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 66. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class members can challenge the Defendant’s unlawful post-arrest detention scheme. 67. This action is brought and may properly be maintained as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. 68. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 69. The Plaintiffs propose the following class seeking declaratory relief only:
all presumptively innocent arrestees who are now before or who will come before Defendant for proceedings concerning pretrial release or detention and who are unable to pay the financial condition that Defendant Cantrell imposes as a requirement for their immediate release. A. Numerosity. Fed. R. Civ. P. 23(a)(1). 70. Each arrestee is presented with the Defendant’s standard money-bond options of pay or jail. Arrestees are held in jail for varying lengths of time depending on how long it takes them to make the payment that the Defendant requires for their release, or to obtain a commercial surety.
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71. The number of current and future arrestees subjected to these policies is innumerable. Over thirty thousand individuals are arrested in Orleans Parish annually. Defendant Cantrell establishes post-arrest but pre-indictment release conditions for a large portion of those arrestees. Including future arrestees, the proposed Class contains thousands of people.
B. Commonality. Fed. R. Civ. P. 23(a)(2). 72. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The named Plaintiffs seeks relief concerning a determination as to whether the Defendant’s policies, practices, and procedures violate the rights of the Class members. 73. These common legal and factual questions arise from one central scheme and set of policies and practices: the Defendant’s post-arrest detention scheme and the procedures (or lack thereof) that he follows when imposing financial conditions of release. The Defendant operates this scheme openly and in materially the same manner every day. The material components of the scheme do not vary from Class member to Class member, and the resolution of these legal and factual issues will determine whether all of the members of the class are entitled to the constitutional relief that they seek. Among the most important, but not the only, common questions of fact are:
 Whether Defendant has a policy and practice of refusing to conduct an inquiry into ability to pay prior to requiring secured financial conditions of release;
 Whether Defendant has a policy and practice of refusing to consider ability to pay prior to requiring secured financial conditions of release;
 Whether Defendant has a policy and practice of routinely refusing to consider nonfinancial conditions of release in many cases;
 Whether Defendant requires secured financial conditions of release without making any findings that those conditions are the least restrictive condition necessary to mitigate any particular risks identified;
 Whether Defendant has a policy and practice of regularly imposing secured financial conditions of release arbitrarily in amounts of $2,500 and above;
 Whether Defendant has a policy and practice of refusing to allow posting of cash
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bonds, thereby requiring utilization of a commercial surety company;  Whether Defendant Cantrell and the other judges of the Orleans Parish Criminal
District Court exercise control over the expenditure of funds generated through the 1.8% fee on commercial surety bonds set by Cantrell;  Whether the funds generated from the fee on commercial surety bonds are used by Defendant Cantrell and his fellow judges to fund the operations of the Orleans Parish Criminal District Court. 74. Among the most important common question of law are:
 Whether requiring a financial condition of pretrial release without inquiry into and findings concerning a person’s ability to pay, and without consideration of alternative non-financial conditions of release, violates the Fourteenth Amendment’s Due Process and Equal Protection Clauses;
 Whether Defendant’s institutional financial conflict of interest in the imposition of secured financial conditions of release violates the Fourteenth Amendment’s Due Process Clause.
C. Typicality. Fed. R. Civ. P. 23(a)(3). 75. The named Plaintiffs’ claims are typical of the claims of the other members of the Class, and they have the same interests in this case as all other members of the Class that they represent. Each of them suffers injuries from the failure of the Defendant to comply with the basic constitutional provisions: they are each confined in jail because they could not afford to pay the Defendant’s required bond amount. The answer to whether the Defendant’s scheme of policies and practices is unconstitutional will determine the claims of the named Plaintiffs and every other Class member. 76. If the named Plaintiffs succeed in the claim that the Defendant’s policies and practices concerning post-arrest detention violate their constitutional rights, that ruling will likewise benefit every other member of the Class.
D. Adequacy. Fed. R. Civ. P. 23(a)(4). 77. The named Plaintiffs are adequate representatives of the Class because their interests in the vindication of the legal claims that they raise are entirely aligned with the interests
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of the other Class members, who each have the same basic constitutional claims. They are members of the Class, and their interests coincide with, and are not antagonistic to, those of the other Class members.
78. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of their unlawful treatment by their local government.
79. Plaintiffs are represented by attorneys from the Roderick and Solange MacArthur Justice Center in New Orleans (“MacArthur Justice Center”)3 and Civil Rights Corps4 who have experience in litigating complex civil rights matters in federal court and knowledge of both the details of the Defendant’s scheme and the relevant constitutional and statutory law.
80. The efforts of Class counsel have so far included investigation of Defendant’s money-based pretrial detention system, interviews of jail inmates and attorneys practicing in the area, consultation with local and national experts, and research regarding the legality of Defendant’s secured money-bail regime.
81. Class counsel have studied the way that post-arrest detention systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipal entities.
3 The MacArthur Justice Center is a non-profit public interest law firm. Undersigned counsel Katie Schwartzmann, the co-Director of the MacArthur Justice Center, has practiced law in Louisiana for twelve years and has litigated a wide variety of complex civil matters in state and federal court. She is presently class counsel for thousands of prisoners in the Orleans Parish Prison. Undersigned counsel Eric Foley, staff attorney at the MacArthur Justice Center, worked for two years as a federal judicial clerk in the District Court of Puerto Rico before beginning his practice of law in Louisiana in 2011. He has litigated civil rights cases at the trial and appellate stages in state court. 4 Civil Rights Corps is a non-profit civil rights organization based in Washington, D.C. Counsel from Civil Rights Corps has been counsel in nearly twenty similar federal civil rights class action lawsuits.
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82. Class counsel also have experience litigating similar challenges in other jurisdictions and years of experience litigating complex and important cases in Louisiana federal courts.
83. As a result, counsel have undertaken significant efforts toward becoming intimately familiar with the Defendant’s scheme and with all of the relevant state and federal laws and procedures than can and should govern it. The interests of the members of the Class will be fairly and adequately protected by the named Plaintiffs and their attorneys.
E. Rule 23(b)(2). 84. Class action status is appropriate because the Defendant, through the policies, practices, and procedures that make up his post-arrest money-based release and detention scheme, acts in the same unconstitutional manner with respect to all class members. Defendant has created and applied a scheme of post-arrest detention and release procedures that requires presumptively innocent arrestees to pay a bond of at least $2,500 to a commercial surety to secure their release. Defendant releases those who can pay and detains those who cannot, without considering alternative non-financial conditions of release or conducting the constitutionally required inquiry into ability to pay. Impoverished arrestees who remain detained eventually have their first appearance before a judge, but it may be months before a case is accepted by the District Attorney and assigned to a Criminal District Court section. Thus, impoverished arrestees are kept illegally in jail for days, weeks, and months as a result of the Defendant’s policies, practices, and procedures. Each further day of wealth-based detention results in irreparable harm. 85. The Class therefore seeks declaratory relief as to Defendant’s policies, practices, and procedures, which are unconstitutional in materially the same way for every class member. Because the putative Class challenges the Defendant’s scheme as unconstitutional through
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declaratory relief that would apply the same relief to every member of the Class, Rule 23(b)(2) certification is appropriate and necessary.
Claims for Relief Count One: Defendant’s Policies and Practices Violate Plaintiffs’ Rights By Jailing Them Solely Because They Cannot Afford a Money Payment Without an Inquiry Into and Findings Concerning Their Ability to Pay or Consideration of Non-Financial Alternative Conditions of Release. 86. Plaintiffs incorporate by reference the allegations in paragraphs 1–85. 87. The Fourteenth Amendment’s Due Process and Equal Protection Clauses have long prohibited keeping a person in jail solely because of the person’s inability to make a monetary payment. Defendant violates Plaintiffs’ fundamental rights by keeping them in jail after arrest when they cannot afford to pay the amount of money set by the Defendant without an inquiry into and findings concerning their ability to pay and without consideration of alternative non-financial conditions of release. Count Two: Defendant’s Institutional Financial Conflict of Interest in the Imposition of Secured Financial Conditions of Release Violates Due Process 88. The Due Process Clause ensures the fundamental neutrality of American judicial proceedings. Defendant Cantrell’s dual role as a judge determining conditions of pretrial release and as an executive in charge of managing the Court’s finances creates an institutional conflict of interest that deprives Plaintiffs of their right to a neutral tribunal. In Defendant Cantrell’s courtroom, Defendant imposes these secured financial conditions of release that Defendant and the other judges of the Criminal District Court know will result in their collecting and controlling 1.8% of the bond amount into a fund that they manage. This creates an intolerable judicial financial conflict of interest and results in a proceeding that lacks the basic neutrality required in American law.
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Case 2:17-cv-06197-EEF-MBN Document 1 Filed 06/27/17 Page 26 of 27 Request for Relief
WHEREFORE, Plaintiffs and the other Class members request that this Court issue the following relief:
a. A declaratory judgment that the Defendant violates the named Plaintiffs’ and Class members’ constitutional rights by promulgating and enforcing policies that result in jailing Plaintiff and Class members and keeping them in jail solely because they are poor and cannot afford to pay an amount of money to secure release.
b. A declaratory judgment that Defendant Cantrell has a conflict of interest that violates the Due Process rights of defendants appearing before him where he imposes commercial surety bonds as a condition of release, fees on such commercial surety bonds generate substantial revenue for the Orleans Parish Criminal District Court, and Cantrell has executive authority of the fund in which those fees are deposited.
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Respectfully submitted,
/s/ Katie M. Schwartzmann Katie M. Schwartzmann, La Bar No. 30295 Eric A. Foley, La Bar No. 34199, T.A. Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, La 70119 (504) 620-2259 (p) (504) 208-3133 (f) katie.schwartzmann@macarthurjustice.org eric.foley@macarthurjustice.org Alec Karakatsanis, D.C. Bar No. 999294 (Pro Hac Vice Application Pending) Founder and Executive Director Civil Rights Corps 910 17th Street NW, Fifth Floor Washington, DC 20006 (202)-681-2409 alec@civilrightscorps.org
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 Case 2:17-cv-06197-EEF-MBN Document 12 Filed 07/17/17 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE AND BRIAN GISCLAIR, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
HARRY E. CANTRELL, MAGISTRATE JUDGE OF ORLEANS PARISH CRIMINAL DISTRICT COURT

CIVIL ACTION NO. 17-6197 (CLASS ACTION) JUDGE FALLON MAGISTRATE NORTH

Magistrate Judge Harry E. Cantrell’s FRCP 12 b(1) Motion to Dismiss
Comes, Magistrate Judge Harry E. Cantrell, through undersigned counsel, and moves this
court for an order dismissing this suit in its entirety for the reasons that (1) plaintiffs lack standing
because some state criminal proceedings have concluded (2) the principles of Younger v. Harris apply
to those plaintiffs who are still involved in an on-going state criminal proceeding. This motion is
supported by the Memorandum in Support along with Exhibits from the state court suits referenced
in the Complaint Rec. Doc. 1.
Respectfully submitted,
/s/ Celeste Brustowicz Burglass and Tankersley, LLC Dennis J. Phayer (#10408) (T.A.) dphayer@burglass.com Celeste Brustowicz (#16835) (T.A.) cbrustowicz@burglass.com Christopher K. Tankersley (#19176) ctankersley@burglass.com Elizabeth A. Doubleday (#34916) edoubleday@burglass.com 5213 Airline Drive
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Metairie, LA 70001 Tel: (504) 836-0428 Fax: (504) 287-0468 Attorneys for: Magistrate Judge Harry E. Cantrell
CERTIFICATE OF SERVICE I hereby certify that on the 14th day of July, 2017, a copy of the foregoing pleading has been forwarded to all counsel of record via CM/ECF filing through the United States District Court system, email and/or United States Mail.
/s/ Celeste Brustowicz ________________________________________

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE AND BRIAN GISCLAIR, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
HARRY E. CANTRELL, MAGISTRATE JUDGE OF ORLEANS PARISH CRIMINAL DISTRICT COURT

CIVIL ACTION NO. 17-6197 (CLASS ACTION) JUDGE FALLON MAGISTRATE NORTH

Memorandum Supporting Magistrate Judge Harry E. Cantrell’s FRCP 12 b (1) Motion to Dismiss

May It Please The Court:

I.

WHY THIS MOTION HAS MERIT

Federal question jurisdiction is invoked via 42 USC §1983 by two named plaintiffs but the

suit also identifies the state criminal cases of eleven others who may also be plaintiffs or potential

class members.1 The question raised by this motion is whether subject-matter jurisdiction exists, a

prerequisite to proceeding.2 There are two concerns -- standing3 and abstention, as federal courts

may not entertain actions that seek to impose a federal audit of ongoing state criminal proceedings.4

As an Article III court and in a case seeking declaratory relief, a “case” or “controversy” brought by

a person alleging facts showing a substantial and continuing controversy between the parties must

1 Rec. Doc. 1. 2 Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93–102 (1998) (before a court addresses the merits of a case, it must have subject-matter jurisdiction). 3 Id. Subject matter jurisdiction includes finding that plaintiff has standing. 4 O’Shea v. Littleton, 414U.S. 488, 500 (1974); Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir.1974).

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exist at all stages of the suit.5 Plaintiffs must show adverse legal interests with the defendant.6 As some of the criminal proceedings have been concluded, the defendants in those concluded proceedings lack standing.
For the other plaintiffs, their state criminal proceedings remain ongoing. That, coupled with the fact that the defendant is a sitting state court judge, requires this Court to decline jurisdiction.7 Admittedly, this Court has an unflagging obligation to adjudicate controversies before it.8 This obligation is, however, tempered by the more important considerations of comity and federalism when, as here, important state interests are involved.9 The state concerns are its criminal law, its ability to enforce its criminal laws, and the right of its courts to issue orders and judgments without interference from federal courts.10 Ongoing criminal proceedings have always been deemed an exceptional and important state interest requiring abstention.11
II. OPERATIVE FACTS AND STATE COURT CRIMINAL RECORDS Plaintiffs are two named individuals: and perhaps eleven others. They claim that Magistrate Judge Harry E. Cantrell is violating their civil rights (1) by refusing to lower or eliminate plaintiffs’ bonds in the state court criminal proceeding and unconstitutionally keeping them in jail because they are too poor to pay for their release and (2) by having an “executive” interest in the commercial surety tax imposed by state law and used by the Orleans Criminal District Court as a whole to partially court operations in accordance with state law.12 Plaintiffs want a class certified of:

5 Ruiz v. Estelle, 161 F.3d 814, 829 (5th Cir.1998). 6 Bauer v. Texas, 341 F.3d 352, 375 (5th Cir.2003). 7 Younger v. Harris, 401 U.S. 37, (1971); Bice v. Louisiana Pub. Def. Bd., 677 F.3d 712 (5th Cir.2012). 8 Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996). 9 Younger, 401 U.S. at 43-45; Bice, 677 F.3d at 718. 10 Id.; Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987). 11 Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013), citing New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 367–368 (1989). 12 LSA R.S. 13:1381.4

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[A]ll presumptively innocent arrestees who are now before or who will come before Defendant for proceedings concerning pretrial release or detention and who are unable to pay the financial condition that Defendant Cantrell imposes as a requirement for their immediate release. Rec. Doc. 1 p. 20.
They further seek the following declaratory relief:
a. A declaratory judgment that the Defendant violates the named Plaintiffs’ and Class members’ constitutional rights by promulgating and enforcing policies that result in jailing Plaintiff and Class members and keeping them in jail solely because they are poor and cannot afford to pay an amount of money to secure release.
b. A declaratory judgment that Defendant Cantrell has a conflict of interest that violates the Due Process rights of defendants appearing before him where he imposes commercial surety bonds as a condition of release, fees on such commercial surety bonds generate substantial revenue for the Orleans Parish Criminal District Court, and Cantrell has executive authority of the fund in which those fees are deposited.13
Plaintiffs have not alleged any facts suggesting, or even hinting, that the state court criminal
action was brought in bad faith or with the purpose of harassing the federal plaintiffs.14 Nor have
they pled or suggested that any state statute is “flagrantly and patently violative of express
constitutional prohibitions in every clause, sentence, and paragraph, and in whatever manner and
against whomever an effort might be made to apply it”, or that Magistrate Judge Cantrell has waived
the Younger Doctrine.15

13 Rec. Doc. 1, p. 26. 14 Many lawsuits have been filed by a variety of public-interest lawyers; we are unaware of any suit involving these plaintiffs as federal plaintiffs. 15 These are the so-called narrow exceptions to Younger; Younger, 401 U.S. at 49; Trainor v. Hernandez, 431 U.S. 434, 446 (1977); DeSpain v. Johnston, 731 F.2d 1171, 1180 (5th Cir.1984).

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Docket Masters for each named and mentioned individual are attached as Exhibit 1.16 A summary follows:

Name Adrian Caliste Brian Gisclair Angie Williams Chinette Armstead Eddie Green Gavin Morgan Jameal Williams Jermaine Thomas Jesus Medel Lakeisha Myles Lorenzo Cortrina Mishana Johnson Joseph Dunckley

State suit number 564-440 564-456 534-184 559-278 533-382 532-105 564-315 532-420 532-956 561-626 523-941 560-023 559-319

Open/completed Open Open, probable cause 07/18/17 Open, continued without date Open, PTC set for 07/17/17 Closed Open, Trial set for 10/19/17 Open Open, continued to 07/27/17 Closed Closed Open, motions set for 09/14/17 Open Closed

III. STANDARDS FOR FRCP 12(B)(1) MOTION Motions pursuant to FRCP 12(b)1 allow a party to challenge subject matter jurisdiction. Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the Court’s resolution of disputed facts.17 Plaintiffs have the burden of proving jurisdiction exists and this burden is constant throughout the litigation.18 Since standing is jurisdictional it is properly raised via FRCP 12 (b)(1). The same is true for Younger Abstention.19

16 Although courts are generally not permitted to review materials outside of the pleadings in a FRCP motion, there are exceptions, as here, when plaintiffs refer to documents that are central to the claim. Additionally, these are state court records and are matters of public record and this Court may take judicial notice of them. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir.2000); Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir.2004). 17 Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.1996). 18 United States v. Goncalves, 613 F.3d 601, 608 (5th Cir.2010). 19 M.D. v. Perry, 799 F.Supp.2d 712, 715 n. 3 (S.D. Tex.2011).

{00656519 - v1}

4

Case 2:17-cv-06197-EEF-MBN Document 12-1 Filed 07/17/17 Page 5 of 9

IV. STANDING REQUIRES A PERSON WITH AN INTEREST IN THE CLAIM Standing must exist at all phases of the litigation, whether the plaintiff seeks damages or, as here, declaratory relief. In Bauer, 341 F.3d 352,20 plaintiff had a pending probate proceeding and sought declaratory relief regarding certain Texas probate requirements. The probate proceeding concluded before the declaratory judgment action ended; a motion was filed urging no standing. The Fifth Circuit granted the motion on grounds that plaintiff no longer faced any threat of injury. In Society of Separationist, Inc. v. Herman,21 plaintiff, a prospective juror, sought declaratory relief on First Amendment grounds after refusing to take the oath during voir dire. The Fifth Circuit dismissed for want of standing because plaintiff faced no real or immediate threat that she would ever encounter the judge again. “This Court and others have often held that plaintiffs lack standing to seek prospective relief against judges because the likelihood of future encounters is speculative.”22 In Cain v. City of New Orleans,23 ongoing litigation in which Magistrate Judge Cantrell and the other judges of the Orleans Parish Criminal District Court are defendants, claim is made that the plaintiffs, who owed court-assessed costs and fees after pleading guilty to crimes, were treated unconstitutionally. Judge Vance held that two of the named plaintiffs, who had paid their debts and no longer owed them, lacked standing to proceed, as their interest was too speculative for the Court to assume that in the future any one of them might be arrested, convicted, and assessed costs they could not pay and consequently be imprisoned for nonpayment:
Any prospect of future injury assumes that Variste and Long will again be charged with violations of Louisiana criminal law, will again be assessed with court costs that they cannot pay, and will again be arrested and imprisoned for nonpayment. But the Court must assume that the plaintiffs “will

20 Bauer, 341 F.3d 352. 21 Soc'y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1284–85 (5th Cir.1992). 22 id. 23 Alana Cain, et al v. The City of New Orleans et al, USDC Eastern District of Louisiana, Civil Action No. 15-4479

{00656519 - v1}

5

Case 2:17-cv-06197-EEF-MBN Document 12-1 Filed 07/17/17 Page 6 of 9

conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct.”24

A plaintiff bringing a lawsuit bears the burden of demonstrating three separate elements of standing: plaintiff must: (1) have an injury in fact that is concrete and particularized and actual or imminent; (2) establish a causal connection between the injury and the defendant's conduct; and (3) demonstrate a likelihood, not merely a speculation or conjecture, that the injury will be redressed if it prevails in the action.25 Plaintiffs with no ongoing state criminal case cannot, as a matter of law, meet this burden. No other interest they might express is sufficient, as a person not charged or threatened with prosecution has no standing to compel or enjoin enforcement of state penal laws.26 A claim to have the government act in accordance with law or the personal satisfaction from seeing the government comply with law does not create standing.27 A claim for reimbursement of litigation costs will not suffice.28 “A plaintiff's purely academic interest or abstract disagreement with governmental policy does not establish the requisite particularized and concrete injury.”29 Plaintiffs cannot show a concrete and particularized injury; they do not have standing.

V.

ABSTENTION BASED ON YOUNGER V. HARRIS

The Fifth Circuit holds that the Younger doctrine applies when three conditions are met and,

once satisfied, the federal court must abstain and decline jurisdiction: “(1) the federal proceeding

interferes with an ongoing state judicial proceeding; (2) the state has an important interest in

regulating the subject matter of the claim; and (3) the plaintiff has an adequate opportunity in the

24 Alana Cain, et al v. The City of New Orleans et al, USDC Eastern District of Louisiana, Civil Action No. 15-4479, Rec. Doc. 109 pp 18-21. 25 Warth v. Seldin, 422 U.S. 490, 498 (1975); Summers v. Earth Island Inst., 555 U.S. 488 (2009) 26 Diamond v. Charles, 476 U.S. 54 (1986). 27 Steel Co., 523 U.S. at 107. 28 Id. 29 Hollingsworth v. Perry, 133 S.Ct. 2652 (2013); Ashcroft v. Mattis, 431 U.S. 171, 173 (1977).

{00656519 - v1}

6

Case 2:17-cv-06197-EEF-MBN Document 12-1 Filed 07/17/17 Page 7 of 9

state proceeding to raise constitutional challenges”.30 “Ultimately, Younger and its progeny have

established that, absent extraordinary circumstances, federal courts should not enjoin pending state

criminal prosecutions.” 31

a.

ONGOING STATE COURT PROCEEDING

The first requirement is satisfied—there are ongoing state court criminal proceedings as to

the named plaintiffs/putative class representatives and, by extension, the proposed class members.32

A federal proceeding must not interfere with an ongoing state judicial proceeding. Interference

exists whenever the requested relief would interfere with the state court’s ability to conduct

procedural proceedings, regardless of whether the relief targets the conduct of the proceeding

directly.33 Younger involved a criminal proceeding and held that a federal court cannot interfere with

a pending state court proceeding absent extraordinary circumstances.34

b.

ENFORCEMENT OF STATE CRIMINAL LAWS ARE IMPORTANT STATE INTERESTS

The second inquiry is whether the state has an important interest in regulating the subject

matter of the claim. Louisiana has a strong interest in enforcing its criminal laws. The Fifth Circuit

has held that abstention is required when state criminal proceedings are currently pending against a

federal plaintiff.35 The Fifth Circuit holds abstention is proper.36

30 Bice, 677 F.3d at 716; quoting Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). 31 Gibson v. Orleans Par. Sheriff, 971 F.Supp.2d 625, 629–630 (E.D. La.2013), citing New Orleans Public Service, Inc., 491 U.S. at 364. 32 Bice, 677 F.3d 712 33 Bice, 677 F.3d 712 34 Younger v. Harris, 401 U. S. 37, 45 (1971). Younger has been extended to include state civil enforcement proceedings and civil proceedings involving certain orders… uniquely in furtherance of the state courts’ ability to perform their judicial functions. Sprint Commc’ns. Inc. v. Sprint Communications, Inc., 134 S.Ct. 584. 35 Bice, 677 F.3d 712 36 Boyd v. Farrin, 575 Fed.Appx. 517 (5th Cir.2014); Celestine v. 27th Judicial Dist. Court, 70 Fed.Appx. 232 (5th Cir.2003); DeSpain, 731 F.2d 1171; Gibson, 971 F.Supp.2d 625; Lewis v. Beddingfield, 20 F.3d 123 (5th Cir.1994).

{00656519 - v1}

7

Case 2:17-cv-06197-EEF-MBN Document 12-1 Filed 07/17/17 Page 8 of 9

c.

OPPORTUNITY TO REDUCE/ELIMINATE BAIL EXISTS IN THE STATE PROCEEDING

The third inquiry is whether the federal plaintiff has an adequate opportunity in the state

proceeding to raise their constitutional challenge. “Adequate” refers to whether the state tribunal

affords an opportunity for presentation of the federal claim, not whether that claim will prevail.37

Louisiana affords a variety of ways in which the issue may be addressed. There is no question that

these plaintiffs have viable remedies under state law and that they are taking advantage of them.

The recent case of El v. Louisiana38 is directly on point. El was charged by the Jefferson

Parish District Attorney with certain crimes. El maintained he was sovereign and not subject to state

law. He sued the Governor, the State, and the District Attorney. His case did not survive a FRCP

12(b)6 motion. His claim against the District Attorney, like the claim against Magistrate Judge

Cantrell, was specifically subject to Younger v. Harris because of the ongoing state criminal proceeding

where he had the right and ability to urge his constitutional issues

Finally, to the extent that plaintiff asks this Court to enjoin state criminal proceedings pending against him, the request is denied. It appears that there is an ongoing state judicial proceeding in the Twenty-Fourth Judicial District Court for the Parish of Jefferson, Louisiana, against plaintiff, the state has an important interest in adjudicating plaintiff’s criminal charges, and any viable constitutional challenges plaintiff may have may be raised in the state proceeding. Finally, plaintiff shall not be permitted leave to file an amended complaint against defendant Connick.39

VI. CONCLUSION AND RELIEF REQUESTED Subject-matter jurisdiction is required before this Court can proceed to the merits. The burden to prove subject matter jurisdiction rests with plaintiffs. Those plaintiffs who are not defendants in ongoing state criminal proceedings lack standing for lack of concrete interest and

37 Ballard v. Wilson, 856 F.2d 1568 (5th Cir.1988). 38 El v. Louisiana, CV 16-2125, 2017 WL 1969552 (E.D. La. May 12, 2017). 39 Id.

{00656519 - v1}

8

Case 2:17-cv-06197-EEF-MBN Document 12-1 Filed 07/17/17 Page 9 of 9
injury. For the two named plaintiffs and the other identified individuals who are currently
defendants in ongoing state criminal proceedings, their claims must also be dismissed under Younger
v. Harris. The instant motion has merit; it should be granted and plaintiffs’ suit should be dismissed
with prejudice.
Respectfully submitted,
/s/ Celeste Brustowicz Burglass and Tankersley, LLC Dennis J. Phayer (#10408) (T.A.) dphayer@burglass.com Celeste Brustowicz (#16835) (T.A.) cbrustowicz@burglass.com Christopher K. Tankersley (#19176) ctankersley@burglass.com Elizabeth A. Doubleday (#34916) edoubleday@burglass.com 5213 Airline Drive Metairie, LA 70001 Tel: (504) 836-0428 Fax: (504) 287-0468 Attorneys for: Magistrate Judge Harry E. Cantrell
CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of July, 2017, a copy of the foregoing pleading has been
forwarded to all counsel of record via CM/ECF filing through the United States District Court
system, email and/or United States Mail.
/s/ Celeste Brustowicz ________________________________________

{00656519 - v1}

9

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 1 of 13

MAG#: 564440

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/14/2017 Time: 08:41:58

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

CALISTE, ADRIAN A

1 RS 40 966

A05P BOND:

POSS MARIJUANA

1 RS 40 967(C)(2) A40P BOND:

POSSESSION OF COCAINE (CRACK)

1 RS 40 1023

BOND:

POSS OF DRUG PARAPHERNALIA

0.00 2,500.00 2,500.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

06/20/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $5,000.00

RESULT-RULE TO SHOW CAUSE FOR 7/18/2017 AT 3:00 PM

SCHEDULED -PROGRESS REPORT ON 7/18/2017 AT 3:00 PM, SECT M3

SCHEDULED -RULE TO SHOW CAUSE ON 8/18/2017 AT 3:00 PM, SECT M5

OPD APPOINTED, DEFENDANT SERVED FOR HEARING

THE COURT FOUND NO PROBABLE CAUSE FOR POSS. MARIJUANA

THE COURT ISSUED A RELEASE FOR THIS COUNT ONLY

THIS DEFENDANT IS ORDERED TO REPORT TO CDCS PRETRIAL SERVICE

07/05/2017

NELSONCA *

UNSCHEDULED ACTIVITY IN MAGISTRATE COURT SECTION M1

RESULT-DEFENSE FILED MOTIONS

SCHEDULED -BOND REDUCTION HEARING ON 7/10/2017 AT 10:00 AM, SECT

M1

JAN FENNELL OPD ATTY FOR THIS DEFENDANT

FILED MOTION FOR BOND REDUCTION

STATE SERVED WITH MOTION

PLACE THIS DEFENDANT ON THE JAIL LIST FOR HEARING

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at (504) 658-9000. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 2 of 13

MAG#: 564456

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/14/2017 Time: 08:42:51

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

GISCLAIR, BRIAN A

1 RS 40 967(C)(2) A40P BOND: POSSESSION OF COCAINE (CRACK)

2,500.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

06/20/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $2,500.00

RESULT-COURT FINDS PROBABLE CAUSE FOR 7/18/2017 AT 3:00 PM

SCHEDULED -PROGRESS REPORT ON 7/18/2017 AT 3:00 PM, SECT M3

SCHEDULED -RULE TO SHOW CAUSE ON 8/18/2017 AT 3:00 PM, SECT M5

OPD APPOINTED,DEFENDANT SERVED FOR HEARING

THIS DEFENDANT IS ORDERED TO REPORT TO CDCS PRETRIAL SERVICES

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at (504) 658-9000. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 3 of 13

MAG#: 561958

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/13/2017 Time: 16:44:27

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

WILLIAMS, ANGIE

1 RS 14 35.3 DOMESTIC ABUSE BATTERY

BOND:

2,500.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

03/20/2017

WRIGHTD *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $2,500.00

RESULT-RULE TO SHOW CAUSE FOR 5/17/2017 AT 10:00 AM

SCHEDULED -RULE TO SHOW CAUSE ON 5/17/2017 AT 10:00 AM, SECT M1

SCHEDULED -PROGRESS REPORT ON 4/17/2017 AT 10:00 AM, SECT M1

THE COURT FOUND PC FOR DOMESTIC ABUSE AND ORDERED THE DEFENDANT

TO DOMESTIC VIOLENCE COURT.

03/21/2017

WRIGHTD *

UNSCHEDULED JUDICIAL ACTIVITY IN MAGISTRATE COURT SECTION M1

SCHEDULED -STATUS HEARING ON 4/07/2017 AT 10:00 AM, SECT M1

THE DEFENSE FILED:

-NOTICE OF INTENT TO APPLY FOR SUPERVISORY WRITS.

PDOJL

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at (504) 658-9000. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 4 of 13

MAG#: 559278

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/13/2017 Time: 16:42:30

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

ARMSTEAD, CHINETTE M ARMSTEAD, CHINETTE M ARMSTEAD, CHINETTE M

1 RS 14 69(B)(1)

BOND:

ILL POSS STOLEN THINGS > $1500

1 RS 14 67.10(B)(1)

BOND:

THEFT OF GOODS $1500 OR MORE

1 RS 14 67.10(B)(2)

BOND:

THEFT OF GOODS $500 TO $1499

0.00 2,500.00 2,500.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

12/08/2016

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $7,500.00

RESULT-COURT FINDS PROBABLE CAUSE FOR 1/05/2017 AT 10:00 AM

SCHEDULED -PROGRESS REPORT ON 1/05/2017 AT 10:00 AM, SECT M1

SCHEDULED -RULE TO SHOW CAUSE ON 2/05/2017 AT 10:00 AM, SECT M5

OPD APPOINTED, DEFENDANT SERVED FOR HEARING

THIS DEFENDANT HAS MUNICIPAL CHARGES PENDING

THIS DEFENDANT HAS PRIOR CONVICTIONS

NO ROR ISSUED

12/15/2016

NELSONCA *

UNSCHEDULED ACTIVITY IN MAGISTRATE COURT SECTION M1

RESULT-DEFENSE FILED MOTIONS

SCHEDULED -BOND REDUCTION HEARING ON 12/19/2016 AT 10:00 AM, SECT

M1

MARY ANDERSON OPD ATTY FOR THIS DEFENDANT

FILED MOTION FOR BOND REDUCTION

STATE SERVED WITH MOTION

PLACE THIS DEFENDANT ON THE JAIL LIST FOR HEARING

12/19/2016

NELSONCA *

BOND REDUCTION HEARING IN MAGISTRATE COURT SECTION M1

RESULT-COURT DENIED MOTION(S)

JIMMY MILLER OPD ATTY PRESENT WITH THIS DEFENDANT

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at (504) 658-9000. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.
EXHIBIT 1

IECTIoS; AJCJaJs"eJ2°:^17-cv-06197•'•-'-E• wEF^-MaB-N* DTocumneant a12-x2 aFiKled 0,7- /17/17 PDaAgTeE:5 of 71/307/2017

CLASS: 4

TIME

:51:5J

ORLEANS PARISH CRIMINAL DISTRICT COURT

1

'S—Sff—^-i-li— ~" CHTS CHARGE(S):

1 GREEN, EDDIE

1 RS 14 56(A)(1)

BOND-

SIMPLE.CRIMINAL DAMAGE TO PROPERTY

1 RS 14 103

BOND:

DISTURBING THE PEACE

_DATE_ PROCEEDINGS

2 500 00
Z'SUU-UU
oo

3/15/2017
FILED BILL OF INFORMATION
CAPIAS ISSUED BOND SET $2,500.00

RODRIGUEZA

alottexTar^ig™^
3/20/2017
>THE DEFENDANT EDDIE GREEN APPEARED FOR ARRAIGNMENT >COURTNP
APPOINTED , OPD. >MICHAEL MAGNER STOOD IN FOR ARRATGNMFNT rah v
s^^gss^°&i?KBD>8F^g^g^ SPS2333 "r"

DETERMINE COUNSEL SET FOR 03/29/17 >NOTIFY°DEFRCOUNSELT°>PDOJL
3/29/2017
>THJ! DEFENDANT, EDDIE GREEN APPEARED FOR HRG TO DETFRMTNJTp1^1^
TO^PDLREPRESENT^V^Tn^FTX?^^SSUSr§Rg^ DEFENDANT^IlEASE
04/26/17 >SEND NOTICES. >NOTIFY DEF COUNSEL >DNOC °R
4/03/2017
FILED ROR BOND,$2,500.00,DATE OF BOND:03/29/17. (GREEN)R0DRIGUEZA
4/26/2017
DEFENDANT, EDDIE GREEN APPEARED WITHOUT COUNSEL FOR TRTA?RENP
?E>NXCoOPfENlFCTYTINEDUDDEEDWF.COZON&USN&TSA8ETLPEP&LM>SO§iNTIOOSNCTPARTpRE'I"SATiRLsPIALINLE^PCOR0NFOFFGEERRREEqN/qDCEETFW SiNETQDAtFtNOmTRm0Ii6Ss/0i 5' /17
6/05/2017
^W•ILTHtt C<~OyUUNNSSfEc,LL^, TLf AAUTREATrBSII§XtB?^YEN>^CPO.UPN^AT R1EDAMFE0NRDEPDRTEO-TRRIqAL14 C1ONmFEWRAERNRCEEN1P
D10IS3TUDRISBTINUGRBITNHGE TPHEAECEPEA>CDEEFEPNLDEDANGTUPILLTEYD GPUURILSUTYAN*>TPOTRO AmRiTm ICLE1 d89c4 ia

S3"oi^?"BiTM^DEgEp-sT^KiiKl&78 ^™>JnUPsDISGiEESS§IATSSHfU5iE8ID°SMAANIFiBIORARENDAExRRCM0PUDRRUOTRHIINRBGEITCIAPNRLGLOEBDTAHTTEIOHNEDEkF(EA^NRDThANST89m5FRAO(VM6) ^?pnBfqlq™SFIF^8Tqwr

END OF D6CKET~MASTER

==" =::"r ==1: ==

Oak's Office

by.

Deputy Clerk

Hon. ArthurA. Morrell
Clerk of Criminal District Court

Orleans Parish

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 6 of 13

MAG#: 559682

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/13/2017 Time: 16:47:10

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

MORGAN, GAVIN P

1 RS 14 35.3 DOMESTIC ABUSE BATTERY

BOND:

5,000.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

12/27/2016

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $5,000.00

RESULT-COURT FINDS PROBABLE CAUSE FOR 1/24/2017 AT 10:00 AM

SCHEDULED -PROGRESS REPORT ON 1/24/2017 AT 10:00 AM, SECT M1

SCHEDULED -RULE TO SHOW CAUSE ON 2/24/2017 AT 3:00 PM, SECT M4

OPD APPOINTED, DEFENDAANT SERVED FOR HEARING

THIS DEFENDANT WAS ISSUED AND SIGNED A PROTECTIVE ORDER, ORDER

FILED INTO COURT'S RECORD

THIS DEFENDANT IS ORDERED TO REPORT TO CDCS DOMESTIC VIOLENCE CRT

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at (504) 658-9000. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 7 of 13

MAG#: 564315

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/14/2017 Time: 08:47:36

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

WILLIAMS, JAMEAL
WILLIAMS, JAMEAL WILLIAMS, JAMEAL

1 RS 14 95

BOND:

ILLEGAL CARRYING WEAPONS

1 RS 14 37.4

BOND:

AGG ASSAULT WITH A FIREARM

0.00 0.00

1 RS 14 108 RESISTING AN OFFICER

BOND:

5,000.00

1 RS 14 37.2

BOND:

10,000.00

AGG ASSAULT UPON PEACE OFFICER W/FIREARM

==============================================================================

DATE

PROCEEDINGS

==============================================================================

06/15/2017

WILSONTH *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $25,000.00

RESULT-RULE TO SHOW CAUSE FOR 7/13/2017 AT 3:00 PM

SCHEDULED -PROGRESS REPORT ON 7/13/2017 AT 3:00 PM, SECT M5

SCHEDULED -RULE TO SHOW CAUSE ON 8/14/2017 AT 3:00 PM, SECT M2

STARVOS PANAGOULOPOULOS, ATTY FOR THE DEFENDANT, APPEARED ON THE

DEFENDANT'S BEHALF.

06/16/2017

WILSONTH *

UNSCHEDULED ACTIVITY IN MAGISTRATE COURT SECTION M1

RESULT-SATISFIED

SCHEDULED -PRELIMINARY HEARING ON 6/28/2017 AT 10:00 AM, SECT M1

STAVROS PANAGOULOPOULOS, ATTY OF RECORD, APPEARED BEFORE THE

COURT AND FILED A MOTION FOR PRELIMINARY HEARING AS WELL AS A

MOTION TO REDUCE BOND.

COURT GRANTED THE MOTIONS AND STATE WAS SERVED WITH COPY OF THE

MOTIONS. PDOJL

07/05/2017

TAMBORELL*

STATUS HEARING IN MAGISTRATE COURT SECTION M3

RESULT-HELD

DEFENSE ATTY : STAVROS PANAGOULOPOULOS FILED THE FOLLOWING MOTION

IN TO THE RECORD.

1. NOTICE OF INTENT TO SEEK A SUPERVISIORY WRIT

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at
EXHIBIT 1

CASE: SECTION:

MCl5a3se2-24:1270-cv-0619—7-• EEDF-OMCBNKEDTocumeMntA12S-2TFEileRd 07/17/17

PaDgeAT8Eof 137/05/2017

CLASS: 4

TIME

14:24:21

PAGE

1

ORLEANS PARISH CRIMINAL DISTRICT COURT

DF# DEFENDANT(S):

CNTS CHARGE(S)

1 THOMAS JERMAINE M

1 RS 14 39 NEGLIGENT INJURING

BOND:

15 000 00

DATE

PROCEEDINGS

2/02/2017

FILED BILL OF INFORMATION

CAPIAS ISSUED
BOND SET $ 15,000

¥£9I§ISATE PAPERWORK FILED (M# 559871, DOB 1/29/80, F# 2444106)
*****************************************************************

ALLOTED. ARRAIGNMENT SET FOR 02/16/2017 AT 10 A.M.

FILED SURETY BOND, $ 15,00

DATE OF BOND 01/05/17

SURETY: SENECA

2/16/2017

NELSONCA

>DEFENDANT JERMAINE M THOMAS , DID NOT APPEAR FOR ARRAIGNMENT

>COURT RESET ARRAIGNMENT. >HRG TO DETERMINE COUNSEL SET FOR
03/10/17 IN SECTION Ml. >ARRAIGNMENT SET FOR 03/10/17 IN

SECTION Ml. >DNOC.

3/10/2017

NELSONCA
REPRESENTED BY PVT. ATTY >READING OF BILL OF INFORMATION
WAIVED. >DEFENDANT ENTERED PLEA OF NOT GUILTY. >DISCOVERY
HEARING SET FOR 04/07/17 IN SECTION Ml. >NOTIFY DEFENDANT.
>NOTIFY SURETY. >DNOC.

4/07/2017

NELSONCA

>THE DEFENDANT, JERMAINE M THOMAS APPEARED FOR DISCOVERY HEARING

WITH COUNSEL, BOBBY SMITH THE STATE TENDER DISCOVERY TO DEFENSE

>TRIAL SET FOR 06/29/17 IN SECTION Ml. >NOTIFY DEF.COUNSEL.

>NOTIFY SURETY. >DNOC.

6/29/2017

NELSONCA

>DEFENDANT, JERMAINE M THOMAS APPEARED WITH COUNSEL, BOBBY SMITH

FOR TRIAL >THE COURT RESET THIS TRIAL, >TRIAL CONTINUED TO

07/27/17 IN SECTION Ml. >NOTIFY DEF.COUNSEL. >DNOC.

END OF DOCKET MASTER

OBiVsOffoe 1 "11

50 a

ATrueCopy

Hon. ArthurA MorreU
Clerk (tfOimMDistrict Court
Orioms Parish

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 9 of 13

MAG#: 561052

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/13/2017 Time: 16:48:11

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

MEDEL, JESUS

1 RS 14 35 SIMPLE BATTERY
1 RS 14 35.3 DOMESTIC ABUSE BATTERY

BOND: BOND:

0.00 5,000.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

02/15/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

RESULT-RESET FOR 3/15/2017 AT 10:00 AM

SCHEDULED -PROGRESS REPORT ON 3/15/2017 AT 10:00 AM, SECT M1

SCHEDULED -RULE TO SHOW CAUSE ON 4/15/2017 AT 3:00 PM, SECT M3

SCHEDULED -FIRST APPEARANCE HEARING ON 2/16/2017 AT 10:00 AM, SEC

T M1

THIS DEFENDANT REQUIRES A SPANISH INTERPETER

PLACE THIS DEFENDANT ON THE JAIL LIST FOR HEARING

02/16/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $5,000.00

RESULT-COURT FINDS PROBABLE CAUSE FOR AT

MATTHEW VOGEL OPD ATTY FOR THIS PROCEEDING

STEPHANIE LADY, SPANISH INTERPETER PRESENT FOR THIS PROCEEDING

THIS DEFENDANT WAS ISSUED AND SIGNED A PROTECTIVE ORDER

THIS DEFENDANT IS ORDERED TO REPORT TO CDCS DOMESTIC VIOLENCE CRT

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at (504) 658-9000. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 10 of 13

MAG#: 561626

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/13/2017 Time: 16:45:49

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

MYLES, LAKIESHA

1 RS 14 82 PROSTITUTION
1 RS 14 103 DISTURBING THE PEACE

BOND: BOND:

2,500.00 0.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

03/08/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

RESULT-RESET FOR 5/05/2017 AT 3:00 PM

SCHEDULED -RULE TO SHOW CAUSE ON 5/05/2017 AT 3:00 PM, SECT M3

SCHEDULED -PROGRESS REPORT ON 4/05/2017 AT 10:00 AM, SECT M1

SCHEDULED -FIRST APPEARANCE HEARING ON 3/09/2017 AT 10:00 AM, SEC

T M1

THIS DEFENDANT REQUIRES A HEARING IMPAIRED TRANSLATOR

PLACE THIS DEFENDANT ON THE JAIL LIST FOR HEARING

03/09/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $2,500.00

RESULT-COURT FINDS PROBABLE CAUSE FOR AT

OPD APPOINTED

JENNIFER GUERRIERI HEARING IMPAIRED INTERPETER PRESENT FOR THIS

PROCEEDING

THE COURT HAS SET BOND ACCORDINGLY

THIS DEFENDANT IS HOMELESS, NO ROR ISSUED

03/10/2017

NELSONCA *

UNSCHEDULED ACTIVITY IN MAGISTRATE COURT SECTION M1

RESULT-DEFENSE FILED MOTIONS

DEFENSE FILED NOTICE TO SEEK WRITS

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at (504) 658-9000. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 11 of 13

MAG#: 561047

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/13/2017 Time: 16:49:29

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

CORTRINA, LORENZO L

1 RS 14 35.3 DOMESTIC ABUSE BATTERY

BOND:

2,500.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

02/15/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

RESULT-RESET FOR 3/15/2017 AT 10:00 AM

SCHEDULED -PROGRESS REPORT ON 3/15/2017 AT 10:00 AM, SECT M1

SCHEDULED -RULE TO SHOW CAUSE ON 4/15/2017 AT 3:00 PM, SECT M3

SCHEDULED -FIRST APPEARANCE HEARING ON 2/16/2017 AT 10:00 AM, SEC

T M1

OPD APPOINTED, DEFENDANT SERVED FOR HEARING

THIS DEFENDANT WAS ISSUED AND SIGNED A PROTECTIVE ORDER

THIS DEFENDANT IS ORDERED TO REPORT TO CDCS DOMESTIC VIOLENCE CRT

THIS DEFENDANT REQUIRES A SPANISH INTERPETER

PLACE THIS DEFENDANT ON THE JAIL LIST FOR HEARING

02/16/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $2,500.00

RESULT-COURT FINDS PROBABLE CAUSE FOR 2/22/2017 AT 10:00 AM

SCHEDULED -HEARING ON DOMESTIC MATTER ON 2/22/2017 AT 10:00 AM, S

ECT M1

JACK MUSE OPD ATTY PRESENT FOR THIS DEFENDANT

PLACE THIS DEFENDANT ON THE JAIL LIST FOR HEARING

02/22/2017

NELSONCA *

HEARING ON DOMESTIC MATTER IN MAGISTRATE COURT SECTION M1

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.
For questions, comments, and other information you may contact the Orleans Parish Clerk of Criminal District Court, Records Division at (504) 658-9000. This information is made available to the public and law enforcement in the interest of public safety. Any unauthorized use of this information is forbidden and subject to criminal prosecution.

EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 12 of 13

Thursday, Jul 13, 2017

EMPLOYEE LOGIN Text Size

Home About Department Visitation Inmate Information Docket Master Civil Division Community Useful Links Contact Us

DOCKET MASTER

==============================================================================

JOHNSON, MISHANA JOHNSON, MISHANA JOHNSON, MISHANA JOHNSON, MISHANA

1 RS 14 62(B) SIMPLE BURGLARY

BOND:

0.00

1 RS 14 35 SIMPLE BATTERY

BOND:

2,500.00

1 RS 14 56(B)(1)

BOND:

2,500.00

SIMPLE CRIMINAL DAMAGE TO PROPTY < $500

1 RS 14 62(B) SIMPLE BURGLARY

BOND:

2,500.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

05/04/2017

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $7,500.00

RESULT-COURT FINDS PROBABLE CAUSE FOR 6/01/2017 AT 3:00 PM

SCHEDULED -PROGRESS REPORT ON 6/01/2017 AT 3:00 PM, SECT M5

SCHEDULED -RULE TO SHOW CAUSE ON 7/02/2017 AT 3:00 PM, SECT M3

DEIDRE PIERCE-KELLY PVT. ATTY FOR THIS DEFENDANT

DEFENDANT SERVED FOR HEARING

THIS DEFENDANT IS ORDERED TO REPORT CDCS DOMESTIC VIOLENCE CRT

THIS DEFENDANT WAS ISSUED AND SIGNED A PROTECTIVE ORDER

06/01/2017

SCHIAFFIN*

PROGRESS REPORT IN MAGISTRATE COURT SECTION M5

THE DEFENDANT FAILED TO APPEAR

THE BOND IS FORFEITABLE IF THE DEFENDANT FAILS TO APPEAR

FOR ARRAIGNMENT IF THIS MATTER IS

06/08/2017

SCHIAFFIN*

STATUS HEARING IN MAGISTRATE COURT SECTION M5

THE DEFENDNAT APPEARED TODAY

THE COURT ADMONISHED THE DEFENDANT FOR MISSING COURT

AND NOTIFIED HER OF THE NEXT STEPS IN THIS MATTER

THIS WAS THE LAST PRE ACCEPTANCE APPEARANCE DATE

FOR THE DEFENDANT IN MAGISTRATE COURT

THE CHARGES HAVE NOT YET BEEN ACCEPTED OR REFUSED

THE RULE DATE HAS BEEN PREVIOUSLY SET

THE DEFENDANT DOES NOT NEED TO APPEAR IN THIS MAGISTRATE COURT

AGAIN UNLESS SUBPOENAED BY THIS MAGISTRATE COURT

THE COURT VERIFIED THE DEFENDANTS ADDRESS ON THE BOND ON THIS

DATE AS WELL

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans Parish Criminal District Court. The Orleans Parish Sheriff's Office DOES NOT maintain or ensure the information provided is complete and accurate, and this information can change quickly. Therefore, the information on this site may not reflect the true charges, status, next court date, or other information regarding a case. The information is provided as a request under the Freedom of Information Act, and the Public Records Act. Nothing contained herein is intended to imply or infer the guilt or wrongdoing of any person(s) listed on this site. This information shall not be considered, or used as, a public document, or official document, and no other publication or copying of this information is allowed without the express written consent of the person(s), and the Orleans Parish Criminal District Court.

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EXHIBIT 1

Case 2:17-cv-06197-EEF-MBN Document 12-2 Filed 07/17/17 Page 13 of 13

MAG#: 559319

DOCKET MASTER ORLEANS PARISH MAGISTRATE COURT

Date: 07/13/2017 Time: 16:51:14

==============================================================================

DEFENDANT(S):

CNTS CHARGE(S):

==============================================================================

DUNCKLEY, JOSEPH L DUNCKLEY, JOSEPH L DUNCKLEY, JOSEPH L

1 RS 15 542.1.4(A)1

BOND:

FAILS TO REGISTER PERIODICALLY RENEW AND

1 RS 15 542.1.4(A)1

BOND:

FAILS TO REGISTER PERIODICALLY RENEW AND

1 RS 15 542.1.4(A)2

BOND:

SECOND OR SUBSEQUENT CONVICTIONS

0.00 0.00 0.00

==============================================================================

DATE

PROCEEDINGS

==============================================================================

12/09/2016

NELSONCA *

FIRST APPEARANCE HEARING IN MAGISTRATE COURT SECTION M1

BOND SET FOR $2,500.00

RESULT-COURT FINDS PROBABLE CAUSE FOR 1/06/2017 AT 10:00 AM

SCHEDULED -PROGRESS REPORT ON 1/06/2017 AT 10:00 AM, SECT M1

SCHEDULED -RULE TO SHOW CAUSE ON 2/06/2017 AT 3:00 PM, SECT M2

OPD APPOINTED, DEFENDANT SERVED FOR HEARING

12/13/2016

NELSONCA *

UNSCHEDULED ACTIVITY IN MAGISTRATE COURT SECTION M1

RESULT-DEFENSE FILED MOTIONS

SCHEDULED -BOND REDUCTION HEARING ON 12/19/2016 AT 10:00 AM, SECT

M1

DYLAN DUFFY OPD ATTY FOR THIS DEFENDANT

FILED MOTION FOR BOND REDUCTION

MICHEAL HENN ADA SERVED FOR HEARING

PLACE THIS DEFENDANT ON THE JAIL LIST FOR HEARING

12/15/2016

NELSONCA *

UNSCHEDULED ACTIVITY IN MAGISTRATE COURT SECTION M1

RESULT-STATE FILED MOTIONS

SCHEDULED -BOND REDUCTION HEARING ON 12/19/2016 AT 10:00 AM, SECT

M1

STATE'S OPPOSITION TO DEFENDANT'S MOTION TO REDUCE BAIL AND

MOTION TO INCREASE BAIL

DEFENSE SERVED WITH MOTION

12/19/2016

NELSONCA *

BOND REDUCTION HEARING IN MAGISTRATE COURT SECTION M1

SCHEDULED -STATUS HEARING ON 1/04/2017 AT 10:00 AM, SECT M1

DYLAN DUFFY OPD ATTY PRESENT WITH THIS DEFENDANT

ED MCCULLFIE ADA PRESENT FOR THIS PROCEEDING

THE DENIED DEFENSE MOTION TO REDUCE BAIL

THE COURT INCREASED THE BOND IN THIS MATTER

DEFENSE, NOTICE OF INTENTION TO APPLY FOR SUPERVISORY WRITS

12/20/2016

NELSONCA *

UNSCHEDULED ACTIVITY IN MAGISTRATE COURT SECTION M1

DEFENSE EMERGENCT APPLICATION FOR SUPERVISORY WRIT

==============================================================================

END OF DOCKET MASTER

==============================================================================

Disclaimer: The Orleans Parish Sheriff's Office provides computer services to both the Orleans Parish Clerk of Criminal District Court and the Orleans
EXHIBIT 1

 
 Case 2:17-cv-06197-EEF-MBN Document 25 Filed 08/15/17 Page 1 of 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE and BRIAN GISCLAIR, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
HARRY E. CANTRELL, Magistrate Judge of Orleans Parish Criminal District Court,
Defendant.

Case No. 2:17-cv-06197-EEF-MBN

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS
Plaintiffs Adrian Caliste and Brian Gisclair oppose Defendant Magistrate Harry Cantrell’s motion to dismiss (ECF No. 12). Magistrate Cantrell has raised a lack of standing and also argued that this Court should abstain from hearing Plaintiffs’ claims. Both arguments fail, and Defendant’s motion to dismiss should therefore be denied.
I. Factual Summary Defendant Cantrell is the Magistrate of the Orleans Parish Criminal District Court. In that
capacity, Cantrell conducts first appearances and establishes the conditions of release for arrestees under the jurisdiction of the Orleans Criminal District Court. (Complaint, ECF No. 1 ¶ 8.) Cantrell retains the authority to determine conditions of release until an indictment has been issued or a bill of information filed and the case assigned to a section of the court, which often takes months. (Id.) Magistrate Cantrell routinely requires secured financial conditions of $2,500 per charge, regardless of the circumstances of the individual defendants appearing before him,

Case 2:17-cv-06197-EEF-MBN Document 25 Filed 08/15/17 Page 2 of 12
and he refuses to permit argument or to consider evidence that would weigh in favor of lower monetary bail amounts or non-financial alternatives to secured money bail. (Id. at 6, 8–13)
The Orleans Parish Criminal District Court receives a 1.8% fee on every commercial surety bond issued in the parish. (Id. at 13–14.) This generates about $1,000,000 per year, nearly one quarter of the court’s General Fund budget. (Id. at 14 ¶ 47.) The $1,000,000 collected from this fee on commercial surety bonds funds the court’s operations, including the operating costs for the Magistrate Section. (Id. ¶ 45.) Along with his fellow judges of the Criminal District Court, Magistrate Cantrell exercises complete executive control over the General Fund. (Id. at 15 ¶ 49.)
Plaintiffs Adrian Caliste and Brian Gisclair were both arrested on nonviolent misdemeanor charges and brought before Defendant Cantrell on June 20, 2017, for their first appearances and bail determinations. (Id. at 4–5.) On each of their charges (one for Mr. Gisclair and two for Mr. Caliste), Magistrate Cantrell required a secured financial condition of $2,500. (Id.) Consistent with his policy, Magistrate Cantrell made no inquiry into the ability of either man to pay this amount or whether alternative conditions of release would have served the government’s purposes. (Id.) Accordingly, he made no findings on either issue.
II. Standard of Review for Motions Challenging Jurisdiction under Rule 12(b)(1). A case should be dismissed under Fed. R. Civ. P. 12(b)(1) only where “the court lacks the
statutory or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Challenges under Rule 12(b)(1) may be either facial or factual. Superior MRI Svcs., Inc. v. Alliance Healthcare Svcs., Inc., 778 F.3d 502, 504 (5th Cir. 2015). A facial challenge is one in which the facts as alleged in the complaint are taken as true, similar to a 12(b)(6) standard. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th
2

Case 2:17-cv-06197-EEF-MBN Document 25 Filed 08/15/17 Page 3 of 12
Cir. 1981). “A motion to dismiss for lack of subject-matter jurisdiction should only be granted if it appears certain that the plaintiff cannot prove any set of facts in support of his claims entitling him to relief.” In re FEMA Trailer Formaldehyde Prods. Liability Litig., 668 F.3d 281, 287 (5th Cir. 2012). A factual challenge under 12(b)(1) challenges an underlying fact necessary for the court’s jurisdiction, such as prudential standing or the citizenship of a party in a case being heard under the court’s diversity jurisdiction. See Superior MRI Svcs., Inc., 778 F.3d at 504.
Magistrate Cantrell has not raised a factual challenge to this Court’s jurisdiction over the representative Plaintiffs’ claims. He has appended to his motion to dismiss the docket entries for various people who are not the Plaintiffs (ECF No. 12-3), and challenged the “standing” of those individuals. The standing of individuals who are not Plaintiffs is irrelevant, as discussed in Section III(A) below. The remainder of Magistrate Cantrell’s motion, which argues for abstention under Younger v. Harris, 401 U.S. 37 (1971), disputes none of the facts as alleged by Plaintiffs and is a facial challenge that can be resolved solely with reference to the Complaint.
III. ARGUMENT A. The Named Representative Plaintiffs Have Standing.
Magistrate Cantrell first argues that some criminal defendants appearing before him, whose transcripts were cited as examples of his policies and practices in the fact section of Plaintiffs’ Complaint, have had their cases resolved since the Complaint was filed. He argues that they have now lost “standing” to pursue this litigation. (ECF No. 12 at 1 (“[P]laintiffs lack standing because some state criminal proceedings have concluded. . . .”).) Magistrate Cantrell
3

Case 2:17-cv-06197-EEF-MBN Document 25 Filed 08/15/17 Page 4 of 12
attached to his motion docket entries in the criminal cases cited by Plaintiffs and the docket entries for the Plaintiffs themselves. (ECF No. 12-3.)1
This argument fails because the individuals who Defendant Cantrell alleges to lack
standing are not Plaintiffs in this litigation. There are two named Plaintiffs to this litigation:
Adrian Caliste and Brian Gisclair. Defendant does not dispute that those two individuals have
standing and has made no argument that the named Plaintiffs lack standing to challenge their
money-based post-arrest detention. The transcripts of proceedings before Defendant Cantrell
that were cited in Plaintiffs’ complaint were merely examples of the unconstitutional conduct that
help to establish Defendant Cantrell’s policies and practices. Whether those other individuals
have “standing” to sue Defendant Cantrell has no bearing on the question of whether Mr. Caliste,
Mr. Gisclair, and the class of similarly situated people that they represent have standing. Mr.
Caliste and Mr. Gisclair were detained pursuant to financial conditions of release at the time they
filed their Complaint and Motion for Class Certification and therefore have standing under long-
established federal law to challenge the money-based procedures that led to their unlawful detention.2 Defendant does not even dispute this point.
1 Both the exhibit and Cantrell’s memo in support of his motion note that the representative Plaintiffs, Mr. Caliste and Mr. Gisclair, continued to have open cases in the Magistrate section of Orleans Criminal District Court. 2 While using the word “standing, Defendants appear to be attempting actually to invoke the concept of mootness. But even if Defendant had made a mootness challenge referencing those other arrestees or to the named Plaintiffs’ claims, such an argument would be foreclosed by decades of Supreme Court precedent. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (holding that a representative plaintiff’s challenge to the county’s failure to make prompt probable cause determinations was not moot even though the plaintiffs received probable cause determinations or release from custody prior to class certification); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) (holding that the termination of a class representative’s pretrial detention did not moot the class members’ claims challenging the length of pretrial detention without a prompt probable cause hearing). In such cases, the claims are so “inherently transitory” that the trial court would not be able to certify a class before the named representative’s claim became moot. As a result, class certification will relate back to the filing of the complaint. Riverside, 500 U.S. at 52; see also Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 919 (5th Cir. 2008); Edwards v. Cofield, No. 3:17-cv-321-WKW, 2017 WL 3015176, at *2–3 (S.D. Ala. July 14, 2017) (holding that the representative plaintiff’s release from jail did not moot class-action claims challenging county’s post-arrest detention practices).
4

Case 2:17-cv-06197-EEF-MBN Document 25 Filed 08/15/17 Page 5 of 12
B. Younger Abstention is Inappropriate in this Case. Defendant next contends that this Court should decline jurisdiction to remedy the
constitutional violations in this case based on the principles announced in Younger v. Harris, 401 U.S. 37 (1971), in which the Supreme Court established a doctrine by which federal courts should abstain from enjoining criminal proceedings in state courts. But, as an initial matter, “a federal court’s ‘obligation’ to hear and decide a case is ‘virtually unflagging.’” Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013) (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). Abstention is thus the exception and applies narrowly. It is not warranted here.
Younger abstention requires three factors be met: (1) that there be the potential for undue interference with an ongoing state court proceeding; (2) that an important state interest be implicated by that proceeding; and (3) that there be an adequate opportunity to raise the relevant claim in that proceeding. Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). Apart from the Middlesex factors, the Supreme Court has long recognized an exception to Younger abstention if the state proceeding is in a biased tribunal. See Gibson v. Berryhill, 411 U.S. 564 (1973). In this case, the third Middlesex factor is not met, since the Plaintiffs lack an adequate opportunity to raise these claims before Defendant Cantrell. Second, Defendant Cantrell suffers is biased by an institutional financial conflict of interest when he adjudicates financial conditions of release. Thus abstention is inappropriate on either of these independent grounds.
5

Case 2:17-cv-06197-EEF-MBN Document 25 Filed 08/15/17 Page 6 of 12
1. Younger Abstention is Inappropriate Because the Magistrate Section of Orleans Criminal District Court Does Not Provide an Adequate Opportunity for Plaintiffs to Raise their Claims.
Plaintiffs and those similarly situated lack an adequate opportunity to challenge the legality of their wealth-based detention in the Magistrate Section of Orleans Criminal District Court. Magistrate Cantrell does not permit argument or evidence on the question of ability to pay, and he routinely refuses to consider alternative non-financial conditions of release. (Complaint, ECF No. 1 at 6, 8–13) He also declines to make appropriate findings or to employ any of the procedures required under state and federal law for the entry of a valid order of pretrial detention. When attorneys attempt to present any of these arguments, he has threatened to hold them in contempt. (Id. at 11–13.)
Federal courts may not abstain when arrestees challenge the lack of an adequate hearing into the legality of their post-arrest detention. Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975). The Gerstein plaintiffs (as here) challenged a pretrial practice, specifically their detention without a prompt probable-cause determination. 420 U.S. at 106–07. The Supreme Court held that Younger did not apply to a claim that a prompt hearing into the validity of their detention was required, because the claim “was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution.” Id. at 108 n.9. The Gerstein opinion was an affirmation of the Fifth Circuit’s rejection of Younger abstention to challenges to pretrial detention: “If these plaintiffs were barred by Younger from this forum, what relief might they obtain in their state court trials? Since their pre-trial incarceration would have ended as of the time of trial, no remedy would exist.” Pugh v. Rainwater, 483 F.2d 778, 782 (5th Cir. 1973), aff’d in part, rev’d in part sub nom Gerstein v. Pugh, 420 U.S. 103 (1975).
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This analysis is so straightforward that Younger abstention arguments have consistently been rejected in similar cases. See, e.g., ODonnell v. Harris Cty., Tex., 227 F. Supp. 3d 706, 734– 39 (S.D. Tex. 2016), recons. denied, No. CV H-16-1414, 2017 WL 784899 (S.D. Tex. Mar. 1, 2017). As the Middle District of Tennessee recently commented, “Gerstein stands for the principle that when it comes to the adequacy of the state court proceedings as an opportunity to address constitutional harms, the opportunity must be available before the harm is inflicted.” Rodriguez v. Providence Cmty. Corrs., 15 F. Supp. 3d 758, 766 (M.D. Tenn. 2015). Multiple District Courts have rejected Younger abstention in similar pretrial detention challenges. See Walker v. City of Calhoun, Ga., No. 4:15-CV-0170-HLM, 2017 WL 2794064 (N.D. Ga. June 16, 2017) (denying application of Younger due, in part, to fact that challenging constitutionality of pretrial detention was not a challenge to underlying criminal case and could not be raised in those cases); Welchin v. Cty. of Sacramento, No. 2:16-cv-00185-TLN-KJN, 2016 WL 5930563, at *6–9 (E.D. Cal. Oct. 10, 2016) (refusing to abstain in a similar challenge to a money-based bail schedule system that involved several days of post-arrest detention prior to any judicial proceedings at which plaintiffs could raise their constitutional claim); Buffin v. City and Cty. of San Francisco, Case No. 15-cv-04959-YGR, 2016 WL 374230, at *2–5 (N.D. Cal. Feb. 1, 2016) (same).
As alleged in Plaintiffs’ Complaint, Magistrate Cantrell routinely refuses to consider the ability of arrestees’ to pay the secured money bails he imposes or to even entertain any argument on the subject: “First of all, this Court never goes any lower than $2,500; okay. So you’ll know that for reference. You don’t have to ask me for that anymore.” (ECF No. 1 at 7.) He has explicitly stated to defense counsel that he will not consider arguments to lower secured surety bonds. When a defense attorney attempted to argue for a lower surety bond for his client,
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Magistrate Cantrell responded, “You can give me some information[,] but I’m going to set her bond at $2,500.” The attorney persisted: “So the bond will be set at $2,500 regardless of the information given?” Cantrell replied, “Yes.” (Id. at 9.) Cantrell goes so far as to threaten defense attorneys with contempt if they attempt to present argument for lowered bail amounts or nonfinancial conditions of release. (Id. at 11–13.)
Plaintiffs are simply unable to raise their Equal Protection and Due Process arguments before Magistrate Cantrell. Until a bill of information is filed, an arrestee for whom Cantrell has set bail has no means of challenging this bail determination before another judge. If the arrestee files a motion for bail reduction, Magistrate Cantrell would be the only judge to hear his motion. (ECF No. 1 at 3.) Even if arrestees could later demonstrate to a different court section that their days or weeks of post-arrest wealth-based detention was unconstitutional, the state court judge could not remedy those harms that would already have been suffered. By the time such a statecourt forum is available to them, they may already have been detained for weeks or months on a secured money bail order that has been required without consideration of their ability to pay or of non-financial alternative conditions of release.
2. Younger Abstention is Inappropriate Where the State Proceeding Before Magistrate Cantrell is Inherently Biased.
Apart from the Plaintiffs’ inability to even raise their Constitutional claims, Magistrate Cantrell’s inherent institutional financial conflict of interest precludes Younger abstention, even if the Middlesex factors were met.
In Gibson v. Berryhill, 411 U.S. 564 (1973), the Supreme Court addressed the question of whether a federal court should abstain from hearing a claim for injunctive relief against a state’s professional licensing board where the plaintiffs alleged that the board had a financial bias. The Gibson Court ruled that “the predicate for a Younger v. Harris dismissal was lacking, for . . . the
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State Board of Optometry was incompetent by reason of bias to adjudicate the issues pending before it.” Gibson, 411 U.S. at 577.3 The Supreme Court has since reaffirmed this principle that Younger does not prevent a federal court’s vindicating constitutional rights when a state tribunal is biased. See, e.g., Kugler v. Helfant, 421 U.S. 117, 124 (1975) (“The policy of equitable restraint expressed in Younger v. Harris, in short, is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.”)
Federal Circuit Courts have found abstention inapplicable in cases alleging biased state tribunals. See Esso Standard Oil v. Lopez-Freytes, 522 F.3d 136 (1st Cir. 2008) (denying abstention where state administrative adjudication was biased by deposit of fines in accounts controlled by adjudicative body); Trust & Inv. Advisers, Inc. v. Hogsett, 43 F.3d 290 (7th Cir. 1994) (reversing trial court’s dismissal on Younger grounds and remanding for further factual development of the question of bias on the part of state administrative body); Yamaha Motor Corp., U.S.A. v. Riney, 21 F.3d 793 (8th Cir. 1994) (denying abstention where member of state adjudicative board had pecuniary interest in the adjudication).
In Nissan Motor Corp. in U.S.A. v. Royal Nissan, Inc., Judge Mentz of the Eastern District of Louisiana refused to apply Younger abstention in a case in which the plaintiff sought an injunction against the Louisiana Motor Vehicle Commission and alleged that the Commission’s members had a financial bias against it. 757 F. Supp 736, 739 (E.D. La. 1991).
3 It remains unsettled whether a biased tribunal qualifies as an inadequate opportunity to raise a federal plaintiff’s claims under the third Middlesex factor, or whether it is instead an “extraordinary circumstance” that would exclude Younger abstention even where the other three factors are met. See, e.g., Kugler v. Helfant, 421 U.S. 117, 125 n.4 (1975). Regardless, a biased tribunal results in the same outcome: “[W]hether bias is considered separately from the three-prong Middlesex text, or whether we disregard the clear language in Kugler and consider bias to be a part of the third prong of the test . . . . under Gibson it is clear that bias on the merits of a disciplinary proceeding is sufficient to preclude Younger abstention.” Partington v. Gedan, 880 F.2d 116, 139-40 (9th Cir. 1989).
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Other districts in the Fifth Circuit agree. See Geots v. Miss. Bd. of Veterinary Med., 986 F. Supp. 1028 (S.D. Miss. 1997) (“[N]ot only will the federal court not abstain where the potential for bias is shown, but upon a finding that members of a state tribunal have a personal interest that might preclude their fair and impartial hearing of charges, it is appropriate for the federal court to enjoin the state proceedings against the plaintiff.”).
Magistrate Cantrell cites to the case of El v. Louisiana, No. 16-2125, 2017 WL 1969552 (E.D. La. May 12, 2017), for the proposition that Younger abstention applies to Plaintiffs’ claims. But the plaintiff in El appeared to be specifically requesting the District Court to enjoin the District Attorney from prosecuting his arrest for various misdemeanors. Furthermore, Mr. El based his argument on the proposition that the state court lacked jurisdiction over him because he is an adherent to the Moorish Science Temple faith and therefore an entity beyond the jurisdiction of the United States. Thus El v. Louisiana is easily distinguished from this case. Plaintiffs here do not seek to enjoin their criminal prosecutions nor do their claims challenge the jurisdiction of the state court over them.
Magistrate Cantrell has an unconstitutional conflict of interest in his role in setting Plaintiffs’ bail. (ECF No. 1 at 13–15.) Indeed, this Court already found such a financial conflict (in which judicial officers receive a percentage of monetary bail amounts to the Judicial Expense Fund) to violate due process over 25 years ago. Augustus v. Roemer, 771 F. Supp. 1458, 1472– 73 (E.D. La. 1991). Chief Judge Vance recently held that an identical claim states a due process violation for the same reasons. Cain v. City of New Orleans, No. 15-4479, 2017 WL 467685 at *17–18 (E.D. La. Feb. 3, 2017). To summarize: through the statutory scheme requiring the payment of 1.8% of every commercial surety bond to the Orleans Criminal District Court, Magistrate Cantrell has an impermissible financial conflict in determining whether to require
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commercial money bail as a condition of pretrial release and then in the calibration of what any monetary bail amount should be. The 1.8% fee is deposited into an account controlled by Magistrate Cantrell and the Judges of the Orleans Criminal District Court. (ECF No. 1 at 15.) This fee amounts to a quarter of the court’s operating budget. (Id. at 14.) Therefore, Magistrate Cantrell has an incentive to require financial conditions of release and to calibrate the amount of those conditions in a manner that maximizes the revenue that he controls. Even if Plaintiffs had the ability to raise this argument within the confines of their first appearance, they would be forced to make this argument before Magistrate Cantrell, who is not the neutral adjudicator that the Due Process Clause requires. Younger abstention is therefore inapplicable in this case.
IV. CONCLUSION Magistrate Cantrell’s Motion to Dismiss should be denied. First, he has made an
irrelevant challenge to the “standing” of nonparties. Second, this case falls squarely outside the bounds of claims that a federal court must abstain from hearing under Younger v. Harris.
Respectfully submitted, /s/ Eric A. Foley Katie M. Schwartzmann, La Bar No. 30295 Eric A. Foley, La Bar No. 34199, T.A. Roderick & Solange MacArthur Justice Center 4400 S. Carrollton Ave. New Orleans, La 70119 (504) 620-2259 (p) (504) 208-3133 (f) katie.schwartzmann@macarthurjustice.org eric.foley@macarthurjustice.org
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/s/ Alec Karakatsanis Alec Karakatsanis, D.C. Bar No. 999294 Founder and Executive Director Civil Rights Corps 910 17th Street NW, Fifth Floor Washington, DC 20006 (202)-681-2409 alec@civilrightscorps.org Counsel for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing is being filed using the Court’s CM/ECF system, which provides notice to all parties.
/s/ Eric A. Foley Eric Foley
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 Case 2:17-cv-06197-EEF-MBN Document 44 Filed 08/25/17 Page 1 of 8

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE AND BRAIN GISCLAIR, *

INDIVIDUALLY AND ON BEHALF OF ALL *

OTHERS SIMILARLY SITUATED

*

*

V.

*

*

HARRY E. CANTRELL, MAGISTRATE JUDGE *

OF ORLEANS PARISH CRIMINAL DISTRICT *

COURT

*

CIVIL ACTION
NO. 17-6197 SECTION "L"(5)

ORDER & REASONS

Before the Court is Defendant Harry E. Cantrell Motion to Dismiss. R. Doc. 12. Plaintiff

opposes the motion. R. Doc. 25. The Court held oral arguments on this matter on August 23,

2017. Having considered the parties’ arguments, submissions, and the applicable law, the Court

now issues this Order and Reasons.

I. BACKGROUND

On June 27, 2017, a group of Plaintiffs filed suit as a class against one Criminal District

Court Judge; Magistrate Judge Harry Cantrell. Plaintiff’s Motion to Certify a Class has been

continued. R. Doc. 5, 31. This case arises from Defendant Magistrate Judge Cantrell’s allegedly

unconstitutional practice of imposing unreasonably expensive secured financial conditions of

release upon arrestees without inquiring about their ability to pay. R. Doc. 1 at 1. Named

Plaintiffs are two criminal defendants with cases pending in the Orleans Parish Criminal District

Court. R. Doc. 1 at 2-3. They appear as class representative for the putative class. Defendant

Harry Cantrell is the Magistrate Judge for Orleans Parish Criminal District Court, among his

duties is to set bail for those arrested. He also has a role in managing the expenditures of the

Judicial Expense Fund. R. Doc. 1 at 3.

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Plaintiffs, as class representatives, allege that Defendant routinely sets a $2,500 minimum secured money bond. Plaintiffs contend Judge Cantrell sets bond without considering the facts of the case to determine whether a lower bond amount or an alternative condition of release might be appropriate. R. Doc. 1 at 6. Plaintiffs further aver that Defendant requires the use of a forprofit bail bond and does not allow arrestees to post cash bail. R. Doc. 1 at 2. Plaintiffs contend that this policy involves a conflict of interest because under Louisiana law, 1.8% of a bond amount collected from a commercial surety (but not from any other type of bond) is allocated directly to the Court for its discretionary use. R. Doc. 1 at 2. Plaintiffs argue that this policy of refusing to consider a criminal defendant’s ability to pay, alternative conditions of release, or a lower bond, as well as the resulting institutional financial conflict, violate the Due Process and Equal Protection clauses of the Fourteenth Amendment. R. Doc. 1. Thus, Plaintiffs seek a declaratory judgement that Defendant’s bond policy, which results in the creation of a modern “debtor’s prison,” is a violation of Plaintiffs’ constitutional rights, and a declaration that Defendant’s financial conflict of interest violates the Due Process rights of criminal defendants. R. Doc. 1 at 26. II. PRESENT MOTION
Defendant has filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction. R. Doc. 12. Defendant raises two issues, standing and abstention. R. Doc. 12-1 at 1.
First, Defendant argues that Plaintiffs whose criminal proceedings have concluded no longer have a case or controversy and therefore lack standing. R. Doc. 12-1 at 2. Defendant asserts that these Plaintiffs lack standing because they are not currently injured (have no pending criminal cases) and are unlikely to suffer the same injury via Defendant in the future. R. Doc. 121 at 5. Defendant highlights the Court’s opinion in Cain v. City of New Orleans (15-4479). R.

Case 2:17-cv-06197-EEF-MBN Document 44 Filed 08/25/17 Page 3 of 8
Doc. 12-1 at 5. There, the Court held that plaintiffs who had already paid their debts lacked standing because their potential future interest was too speculative. 15-4479, R. Doc. 109 at 1821; R. Doc. 12-1 at 5. The Court reasoned that it “must assume that the plaintiffs ‘will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct.’” 15-4479, R. Doc. 109 at 18-21 (quoting O’Shea v. Littleton, 414 U.S. 488, 496 (1974)).
Second, Defendant argues that Plaintiffs’ ongoing criminal proceedings require federal abstention under the Younger doctrine. R. Doc. 12-1 at 2, 6. The Fifth Circuit applies the Younger doctrine when the following conditions are met: “(1) the federal proceeding would interfere with an ongoing state judicial proceeding; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has an adequate opportunity in the state proceedings to raise constitutional challenges.” Bice v. Louisiana Pub. Def. Bd., 677 F.3d 712, 716 (5th Cir. 2012) (internal quotations omitted).
Defendant asserts that the first condition is met because there are ongoing state court criminal proceedings against the named plaintiffs and other class members and that a federal proceeding will interfere with the state court’s ability to handle these proceedings. R. Doc. 12-1 at 7. Defendant contends that the second condition is met because the state has an important interest in criminal law enforcement and the Fifth Circuit has held abstention appropriate when there are current state criminal proceedings against a federal plaintiff. Bice, 677 F.3d 712; R. Doc. 12-1 at 7. Finally, Defendant argues that the third condition is met because Plaintiffs will have an adequate opportunity during the current state criminal proceedings and in future appeals to raise their constitutional concerns. R. Docs. 12-1 at 8, 37 at 1.

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III. LAW & ANALYSIS a. Motion to Dismiss Standard
Rule 12(b)(1) of the Federal Rules of Civil Procedure governs challenges to a court’s subject matter jurisdiction. A court must dismiss a case for lack of subject matter jurisdiction “when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). Dismissal under Rule 12(b)(1) of the Federal Rules of Civil Procedure is appropriate when subject matter jurisdiction is lacking. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). The party asserting jurisdiction bears the burden of proof. Id. (citing Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).
A court reviewing subject matter jurisdiction pursuant to Rule 12(b)(1) may base its opinion on the face of the complaint, “the complaint supplemented by undisputed facts evidenced in the record,” or “the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Ramming, 281 F.3d at 161 (internal citations omitted). A district court evaluating subject matter jurisdiction “must resolve disputed facts without giving a presumption of truthfulness to the plaintiff's allegations.” Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
b. Standing Article III of the Constitution limits the jurisdiction of the judiciary to “cases” or “controversies.” U.S. Const. III, § 2. “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to

Case 2:17-cv-06197-EEF-MBN Document 44 Filed 08/25/17 Page 5 of 8
actual cases or controversies.” DaimlerChrylser Corp. v. Cuno, 547 U.S. 332, at 341–42 (2006) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 37 (1976)). In order to satisfy the Constitution’s Article 3 standing requirements, a plaintiff must show, (1) that he has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
To meet the case or controversy requirement, plaintiffs “must allege some threatened or actual injury resulting from the [defendants’] putatively illegal action before a federal court may assume jurisdiction.” O’Shea, 414 U.S. at 493. “Abstract injury is not enough. . . . The injury or threat of injury must be both real and immediate.” Id. at 494 (quoting Golden v. Zwickler, 394 U.S. 103, 109-110 (1969)). If a plaintiff is seeking equitable relief, it is not sufficient that they were previously exposed to illegal conduct; rather, prior exposure must be “. . . accompanied by . . . continuing, present adverse effects.” Id. at 495-96. However, when plaintiffs who were injured at the time of the filing of the suit, by incarceration or deprivation of due process, bring due process violation claims, these claims are not mooted by plaintiff’s subsequent release from custody or provision of due process. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (holding plaintiffs’ claims not mooted by release from custody or provision of probable cause hearing after filing of complaint).
Named and proposed Plaintiffs in this putative class action have criminal cases pending before Defendant. Therefore, they have ongoing actual injuries, traceable to the defendant, and will likely be redressed by a favorable decision. Defendant argues that Named Plaintiff Gisclair lacks standing because he has been released from custody subsequent to the filing of this suit. R.

Case 2:17-cv-06197-EEF-MBN Document 44 Filed 08/25/17 Page 6 of 8
Doc. 32 at 2. However, in Cain v. City of New Orleans, 186 F. Supp. 3d 536 (E.D. La. 2016), the Court only dismissed plaintiffs for lack of standing who were not incarcerated or did not have court debts outstanding at the time the suit was filed. Id. at 546-47 n.62. Here, Plaintiff Gisclair was incarcerated at the time the suit was filed and his claim is not mooted by his release from custody. Therefore, Plaintiff Gisclair has standing to bring this claim. Finally, regarding the putative class members, there are issues related to standing that may depend on facts not present at this time.
c. Abstention The Younger abstention doctrine applies when exercising federal jurisdiction would interfere with an ongoing state criminal proceeding. 403 U.S. 37 (1971). Application of the Younger doctrine is appropriate when three requirements are satisfied: “(1) the federal proceeding would interfere with an ongoing state judicial proceeding; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has an adequate opportunity in the state proceedings to raise constitutional challenges.” Bice, 677 F.3d at 716 (internal quotations omitted). The Fifth Circuit has held that “[u]nder the rule set out by the United States Supreme Court in Younger v. Harris, federal courts must refrain from considering requests for injunctive relief based upon constitutional challenges to state criminal proceedings pending at the time the federal action is instituted.” Harvey v. Cannizzaro, No. 121187, 2012 WL 1946435, at *3 (E.D. La. May 30, 2012). However, “a necessary predicate for a Younger dismissal . . . is, the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved.” Yamaha Motor Corp. U.S.A. v. Riney, 21 F.3d 793, 797 (8th Cir. 1994). Further, the opportunity for appeal does not negate a denial of due process in the initial proceeding. Ward v. Village of

Case 2:17-cv-06197-EEF-MBN Document 44 Filed 08/25/17 Page 7 of 8
Monroeville, Ohio, 409 U.S. 57, 61 (1972). Defendant argues that adequate appeals are available in the state courts and that, under Esso Standard Oil Co. v. Lopez-Freytes, Plaintiffs must complete the state court appeal process before coming to the federal court for relief. 522 F.3d 136, 141 (1st Cir. 2008). On the contrary, in Esso the court reasoned that abstention was appropriate “because [Plaintiff] had not yet demonstrated irreparable harm,” rather than reasoning that Plaintiff was required to complete the state court appeal process. Id.
Allegations contained on the face of Plaintiffs’ complaint are sufficient to support denial of their 14th Amendment rights to due process for purposes of determining subject matter jurisdiction. The merits of Plaintiffs’ complaint are not yet at issue. Plaintiffs allege that Defendant Judge Cantrell does not adequately inquire into Plaintiff’s ability to pay the set bond or consider alternative conditions of release. R. Doc. 1 at 1, 4. Further, they claim that Plaintiffs do not have an adequate opportunity to raise the relevant claim in Criminal District Court. R. Doc. 1 at 9-11. They allege that when constitutional arguments regarding bond policies and practices are raised that Magistrate Cantrell refuses to consider the arguments and threatens to hold defense counsel in contempt. R. Doc. 1 at 12-13.
While these Plaintiffs have various procedural mechanisms available to challenge the bonds set by Defendant, the delay required by these appeals is problematic because the damage is done by the time the appeal is perfected. Named Plaintiffs and members of the proposed class will suffer irreparable harm via incarceration and/or the financial burden of the bonds even if their appeals are eventually successful. Additionally, any appeals would not abrogate denial of due process during initial bond hearings. See Ward, 409 U.S. at 61.
Therefore, this Court has subject matter jurisdiction and Younger abstention is not appropriate. Plaintiffs’ complaint is sufficient on its face to make a claim of denial of due

Case 2:17-cv-06197-EEF-MBN Document 44 Filed 08/25/17 Page 8 of 8
process. Further, Plaintiffs have not and likely will not have an adequate opportunity in the state court to raise constitutional challenges in a manner that prevents irreparable harm. IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that the Motion to Dismiss filed by Defendant Harry E. Cantrell is hereby DENIED.
IT IS FURTHER ORDERED that the parties shall attend a status conference in chambers set for September 7, 2017, at 8:30 a.m.
New Orleans, Louisiana, this 25 day of August, 2017.
_________________________________ UNITED STATES DISTRICT JUDGE

 
 Case 2:17-cv-06197-EEF-MBN Document 66 Filed 11/07/17 Page 1 of 10

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE AND BRIAN GISCLAIR, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
HARRY E. CANTRELL, MAGISTRATE JUDGE OF ORLEANS PARISH CRIMINAL DISTRICT COURT

CIVIL ACTION NO. 17-6197 (CLASS ACTION) JUDGE FALLON MAGISTRATE NORTH

FED.R.CIV.P. 12(b) DEFENSES, ANSWER, AFFIRMATIVE DEFENSES, AND JURY REQUEST IN RESPONSE TO CLASS ACTION COMPLAINT
Now Into Court, through undersigned counsel, comes Magistrate Judge Harry E. Cantrell, sought to be made defendant herein, who, reserving all defenses available under Fed.R.Civ.P. 12(b), responds to plaintiffs’ Class Action Complaint as follows:
Unless specifically admitted herein, the allegations of the plaintiffs, inclusive of all footnotes and references to other documents and things, are denied.
AFFIRMATIVE DEFENSES First Affirmative Defense
Plaintiffs’ Class Action Complaint should be dismissed for failure to state a claim upon which relief can be granted.
Second Affirmative Defense Plaintiffs’ Class Action Complaint should be dismissed for failure to join a party under Rule 19.

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Third Affirmative Defense Plaintiffs’ Class Action Complaint should be dismissed for lack of subject matter jurisdiction.
Fourth Affirmative Defense Defendant is entitled to absolute immunity.
Fifth Affirmative Defense Defendant is entitled to qualified immunity.
Sixth Affirmative Defense The proposed class action fails to meet the numerosity requirement of Fed.R.Civ.P. 23(a)(1).
Seventh Affirmative Defense The proposed class action fails to meet the commonality requirement of Fed.R.Civ.P. 23(a)(2).
Eighth Affirmative Defense The proposed class action fails to meet the typicality requirement of Fed.R.Civ.P. 23(a)(3).
Ninth Affirmative Defense The named plaintiffs will not adequately and fairly protect the interests of the proposed class, as required by Fed.R.Civ.P. 23(a)(4).
Tenth Affirmative Defense The proposed class lacks common questions of law or fact, as required by Fed.R.Civ.P. 23(b)(3).
Eleventh Affirmative Defense Plaintiffs’ Class Action Complaint should be dismissed as moot.

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Twelfth Affirmative Defense

Plaintiffs’ Class Action Complaint should be dismissed on the grounds that it presents a non-justiciable political question more properly resolved by the legislature rather than the judiciary.

Thirteenth Affirmative Defense

Plaintiffs’ Class Action Complaint should be dismissed because the named plaintiffs are not adequate representatives of the proposed class.

Fourteenth Affirmative Defense

Pursuant to 42 USC § 1988, Defendant will be entitled to recover his attorneys’ fees if he is the prevailing party.

Fifteenth Affirmative Defense

Even were they to prevail, which they should not, plaintiffs are not entitled to recover attorneys’ fees that are unreasonable, excessive, unwarranted, and unrelated to this litigation.

Sixteenth Affirmative Defense

Plaintiffs’ Class Action Complaint should be dismissed because the Defendant is not a proper party to a declaratory judgment action challenging the constitutionality of statutes.

Seventeenth Affirmative Defense

Defendant specifically pleads all affirmative defenses set forth in Rule 8(c) of the Federal Rules of Civil Procedure which are applicable to this case and/or any and all other affirmative defenses and qualified and/or good faith immunities, all of which are pled herein as if copied in extenso.

Eighteenth Affirmative Defense

Defendant affirmatively pleads the immunities, privileges, limitations, and benefits afforded him by La. R.S. 9:2800, La. R.S. 9:2792.4, La. R.S. 9:2798.1, La. R.S. 13:5101, La. R.S. 13: 5105, La. R.S. 13:5106, and La. R.S. 13:5112.

Nineteenth Affirmative Defense

Defendant affirmatively pleads that, with respect to the complained of actions/inactions specified in plaintiffs’ complaint, defendant at all times acted in good faith and within the scope of his judicial authority under applicable law and is thus entitled to good faith and qualified immunity from suit under both state and federal law.

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Twentieth Affirmative Defense Defendant affirmatively pleads that, while carrying out the complained of actions/inactions specified in plaintiffs’ complaint, he at all times acted in accordance and compliance with applicable local, state, and federal law.
Twenty-First Affirmative Defense Defendant affirmatively pleads that plaintiffs’ claims are subject to applicable statutes of prescription, peremption, laches, repose, and are otherwise untimely and time-barred.
Twenty-Second Affirmative Defense Plaintiffs reference and/or attach numerous exhibits to their Class Action Complaint but have not specified which facts alleged therein are directed to Defendant, making it impossible for Defendant to respond to the facts contained in those exhibits. To the extent responses are required, all facts alleged in the documents referenced or attached to plaintiffs’ Class Action Complaint are denied.
Twenty-Third Affirmative Defense No plaintiff requested that Defendant be recused from presiding over their criminal proceeding on grounds of bias or conflict of interest.
Twenty-Fourth Affirmative Defense No plaintiff raised the constitutionality of either the substantive or procedural manner in which bail was set in their underlying criminal proceedings.
Twenty-Fifth Affirmative Defense Defendant affirmatively pleads that plaintiffs’ claimed damages were caused solely by their own legal fault, so as to completely bar any recovery by plaintiffs herein.
Twenty-Sixth Affirmative Defense Defendant affirmatively pleads that plaintiffs’ claimed damages, if not found to have been caused solely by their own legal fault, alternatively, were caused at least in part by plaintiffs’ own comparative fault and contributory negligence, so as to result in a proportionate reduction in any judgment which plaintiffs may ultimately recover.

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Twenty-Seventh Affirmative Defense Defendant affirmatively pleads that plaintiffs’ claimed damages were caused by the legal fault of third parties over whom Defendant exercised no supervision or control, nor whom Defendant employed, such that said third party fault cannot be imputed to Defendant.
Twenty-Eighth Affirmative Defense Defendant affirmatively pleads that plaintiffs have failed to mitigate their damages.
Introduction The first three numbered paragraphs of plaintiffs’ Class Action Complaint are comprised of self-serving conclusory allegations and statements of purported fact that do not require a response from Defendant. However, in an abundance of caution, and in the event a response is required, Defendant denies the allegations contained in the Paragraphs 1, 2, and 3.
Jurisdiction and Venue 4. Denied as calling for a legal conclusion. 5. Denied as calling for a legal conclusion.
Parties 6. Denied for lack of sufficient information. 7. Denied for lack of sufficient information. 8. Defendant admits that he is an elected Magistrate Judge for the Orleans Parish Criminal District Court. All other allegations are denied as calling for legal conclusions.
Facts Adrian Caliste 9. Denied for lack of sufficient information. 10. Denied for lack of sufficient information. 11. Denied for lack of sufficient information.

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12. Admitted.

13. Admitted.

14. Admitted.

15. Denied.

16. Denied as written, the record of the hearing is the best evidence of its contents and it is

pleaded herein as if copied en extenso.

17. Denied for lack of sufficient information.

18. Denied for lack of sufficient information.

19. Denied for lack of sufficient information.

Brian Gisclair

20. Denied for lack of sufficient information.

21. Denied for lack of sufficient information.

22. Admitted.

23. Admitted.

24. Denied as written, the record of the hearing is the best evidence of its contents and it is

pleaded herein as if copied en extenso.

25. Denied.

26. Denied.

27. Denied for lack of sufficient information.

28. Denied for lack of sufficient information.

29. Denied for lack of sufficient information.

30. Denied for lack of sufficient information.

31. Denied.

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Case 2:17-cv-06197-EEF-MBN Document 66 Filed 11/07/17 Page 7 of 10

32. Denied.

33. Denied.

34. Denied.

35. Denied.

36. Denied.

37. Denied.

38. Denied.

39. Denied.

40. Denied.

41. Denied.

42. Admitted.

43. Admitted.

44. Denied.

45. Admitted.

46. Denied for lack of sufficient information.

47. Denied for lack of sufficient information.

48. Denied for lack of sufficient information.

49. Admitted.

50. Denied.

51. Denied.

52. Denied.

53. Denied.

54. Denied for lack of sufficient information.

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55. Denied.

56. Denied for lack of sufficient information.

57. Denied for lack of sufficient information.

58. Denied for lack of sufficient information.

59. Denied for lack of sufficient information.

60. Denied.

61. Denied for lack of sufficient information.

62. Denied for lack of sufficient information.

63. Denied for lack of sufficient information.

64. Denied.

Class Action Allegations

65. Denied for lack of sufficient information.

66. Denied.

67. Denied.

68. Denied.

69. Denied.

A. Numerosity. Fed. R. Civ. P. 23(a)(1).

70. Denied.

71. Denied.

B. Commonality. Fed. R. Civ. P. 23(a)(2).

72. Denied.

73. Denied.

74. Denied.

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C. Typicality. Fed. R. Civ. P. 23(a)(3).

75. Denied.

76. Denied.

D. Adequacy. Fed. R. Civ. P. 23(a)(4).

77. Denied.

78. Denied.

79. Denied for lack of sufficient information.

80. Denied for lack of sufficient information.

81. Denied for lack of sufficient information.

82. Denied for lack of sufficient information.

83. Denied for lack of sufficient information.

E. Rule 23(b)(2).

84. Denied.

85. Denied.

Claims for Relief

Count One:

Defendant’s Policies and Practices Violate Plaintiffs’ Rights By Jailing Them Solely Because They Cannot Afford a Money Payment Without an Inquiry Into and Findings Concerning Their Ability to Pay or Consideration of NonFinancial Alternative Conditions of Release

86. Defendant reasserts and reiterates, as if copied herein in extenso, his responses to the

allegations contained in Paragraphs 1-85.

87. Denied.

Count Two: Defendant’s Institutional Financial Conflict of Interest in the Imposition of Secured Financial Conditions of Release Violates Due Process

88. Denied.

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Request for Relief Defendant denies that the plaintiffs are entitled to the relief sought.
Request for Jury Defendant requests a trial by jury on all claims as the law permits.

Wherefore, Defendant requests a trial by jury and request that after due proceedings are

had there be judgment entered in his favor, dismissing plaintiffs’ Class Action Complaint, with

prejudice, at plaintiffs’ cost, and for all general and equitable relief.

Respectfully submitted,

/s/ Celeste Brustowicz
Burglass and Tankersley, LLC Dennis J. Phayer (#10408) (T.A.) dphayer@burglass.com Celeste Brustowicz (#16835) (T.A.) cbrustowicz@burglass.com Christopher K. Tankersley (#19176) ctankersley@burglass.com Elizabeth A. Doubleday (#34916) edoubleday@burglass.com 5213 Airline Drive Metairie, LA 70001 Tel: (504) 836-0428 Fax: (504) 287-0468 Attorneys for Magistrate Judge Harry E. Cantrell

CERTIFICATE OF SERVICE

I hereby certify that on the 7th day of November, 2017, a copy of the foregoing pleading

has been forwarded to all counsel of record via CM/ECF filing through the United States District

Court system, email and/or United States Mail.

/s/ Celeste Brustowicz ________________________________________

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 Case 2:17-cv-06197-EEF-MBN Document 99 Filed 03/16/18 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE ET AL versus HARRY E. CANTRELL

*

CIVIL ACTION

*

*

No. 17-6197

*

*

SECTION “L” (5)

ORDER & REASONS Before the Court is Plaintiffs’ Motion to Certify a Class Action. R. Docs. 5, 87. Defendant opposes the motion. R. Docs. 21, 95. Having considered the parties’ arguments and the applicable law, the Court issues this Order & Reasons. I. BACKGROUND On June 27, 2017, a group of Plaintiffs filed suit against Magistrate Judge Harry Cantrell. This case arises from Defendant Magistrate Judge Cantrell’s allegedly unlawful practice of imposing unreasonably expensive secured financial conditions of release upon arrestees without inquiring about their ability to pay. R. Doc. 1 at 1. Plaintiffs are two criminal defendants who were in the custody of the Orleans Parish Sheriff’s Office. R. Doc. 1 at 2-3. Defendant Harry Cantrell is the Magistrate Judge for Orleans Parish Criminal District Court, where he is responsible for setting bail upon arrest, and has a role in managing the expenditures of the Judicial Expense Fund. R. Doc. 1 at 3. Plaintiffs allege that Defendant routinely sets a $2,500 minimum secured money bond. Plaintiffs contend Judge Cantrell sets bond without considering the facts of the case to determine whether a lower bond amount or an alternative condition of release might be appropriate. R. Doc. 1 at 6. Plaintiffs further aver that Defendant requires the use of a for-profit bail bond and does not allow arrestees to post cash bail. R. Doc. 1 at 2. Under Louisiana law, 1.8% of a bond amount collected from a commercial surety (but not from any other type of bond) is allocated

Case 2:17-cv-06197-EEF-MBN Document 99 Filed 03/16/18 Page 2 of 5
directly to the Court for its discretionary use; Plaintiffs contend that this policy involves a conflict of interest. R. Doc. 1 at 2. Plaintiffs argue that refusing to consider ability to pay, alternative conditions of release, or a lower bond, as well as the resulting institutional financial conflict, violate the Due Process and Equal Protection clauses of the Fourteenth Amendment. R. Doc. 1. Plaintiffs seek a declaratory judgement that Defendant’s bond policy, which results in the creation of a modern “debtor’s prison,” is a violation of Plaintiffs’ constitutional rights, and a declaration that Defendant’s financial conflict of interest violates their Due Process rights. R. Doc. 1 at 26.
II. PRESENT MOTION Plaintiffs have filed a Motion to Certify a Class Action. R. Doc. 5. Plaintiffs maintain that Defendant applies the same allegedly unconstitutional practices to the entire class, their claims are representative of the class claims, the named plaintiffs’ stake in the controversy is sufficient to represent the class, and all members of the class will seek declaratory relief. R. Doc. 5-1 at 3. Conversely, Defendant argues that class certification is unnecessary because Plaintiffs’ claims are moot. R. Doc. 95. Defendant argues that he has agreed to follow a bail setting protocol that resolves Plaintiffs’ claims. R. Doc. 95 at 2. Further, Defendant argues that the conflict of interest claim is currently in litigation before Judge Vance. R. Doc. 95 at 4. III. LAW & ANALYSIS Class actions permit representative plaintiffs to litigate their claims on behalf of members of the class not before the court. The purpose of a class action is to avoid multiple actions and to allow claimants who could not otherwise litigate their claims individually to bring them as a class. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983). A district court has great discretion in certifying and managing a class action. See Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999). The party seeking class certification bears the burden of proving all the requirements set out in Rule 23 of the Federal Rules of Civil Procedure.

Case 2:17-cv-06197-EEF-MBN Document 99 Filed 03/16/18 Page 3 of 5
Here, Plaintiffs seek certification under Rule 23(b)(2). R. Doc. 5-1 at 1. A class may be certified under Rule 23(b)(2) if it meets the four prerequisites found in Rule 23(a) and an additional requirement found in Rule 23(b)(2). The four prerequisites for certifying a class include: (1) numerosity (a class so large that joinder of all members is impracticable); (2) commonality (questions of law or fact common to the class); (3) typicality (named parties’ claims or defenses are typical of the class); and (4) adequacy of representation (representatives will fairly and adequately protect the interests of the class). Mullen, 186 F.3d at 623 (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997)).
If the four prerequisites of 23(a) have been demonstrated, plaintiffs must satisfy one of the elements of 23(b). Rule 23(b)(2) provides for certification of class actions if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “If the plaintiffs s[eek] only injunctive and declaratory relief, [there is] no trouble certifying the proposed class[].” Broussard v. Foti, No. 00-2318, 2001 WL 699525, at *2 (E.D. La. June 18, 2001).
Plaintiffs in this case satisfy the requirements of 23(a). Plaintiffs satisfy the numerosity requirement because there are hundreds, possibly thousands, of potential class members. See Mullen, 186 F.3d at 624 (finding that a class sized between 100-150 members generally satisfied the numerosity requirement). Commonality is satisfied because the claims of each class member rest on common fact questions surrounding Defendant’s policies and practices of setting bail in state criminal cases. Further, the claims share a common question of law: whether these policies and practices violate the Fourteenth Amendment’s Due Process and Equal Protection clauses. Typicality is met because the claims of the named plaintiffs are typical of, if not identical to, the claims as well as the defenses of the class. See id. at 625 (quoting Lightbourn v. County of El Paso, 118 F.3d 421, 426 (5th Cir. 1997)); Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir.

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1992) (holding that a plaintiff’s claim is typical if it arises from the same event or practice giving rise to the claims of other class members and is based on the same legal theory as the class members); see, e.g., R. Docs. 87-3, 87-4 (transcripts from Judge Cantrell’s hearings). Finally, the named plaintiffs will fairly and adequately protect the interest of the class and Plaintiffs’ counsel are certainly adequately experienced. See Mullen, 186 F.3d at 626 (stating that named plaintiffs are inadequate representatives only if they have conflicts with interests of the other class members). Finally, the Plaintiffs request only declaratory relief for the entire class. Therefore, they have satisfied the Rule 23(b)(2) standard.
Defendant argues that the Court should not certify the class because Plaintiffs’ claims are moot. While Defendant has not filed a motion to dismiss, the Court will address the argument. Generally, “any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot.” Ctr. For Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006). Usually voluntary cessation of a challenge practice does not render a case moot. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 189 (2000).
However, “[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). When arguing that a case or issue is moot, the defendant “bears [a] formidable burden.” Id. at 190. “Allegations by a defendant that its voluntary conduct has mooted the plaintiff’s case require close[] examination.” Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008). “The overarching goal is to determine whether the defendant’s actions are mere “litigation posturing” or whether the controversy is extinguished.” Fontenot v. McCraw, 777 F.3d 741, 748 (5th Cir. 2015).
Here, Defendant Cantrell has not met his formidable burden. While the Court encourages

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Judge Cantrell to continue pursuing settlement of these issues by agreeing to conform his bail practices to the requirements of Constitutional law, the Court has seen no formal recorded statement, such as a consent judgment or settlement agreement, of such a commitment and no evidence that such practices and procedures have already been changed. Therefore, it is not absolutely clear that the allegedly unconstitutional bail practices will not recur.
Additionally, Defendant argues that Plaintiffs’ conflict of interest claims are covered in Cain et al. v. City of New Orleans et al., No. 15-4479, currently before Judge Vance. While the claims pending in the Cain case are similar and relevant to the claims in the instant lawsuit, they are distinctly different claims. In Cain, Plaintiffs challenge practices by the Criminal District Court and its collections department regarding the handling of nonpayment of fines and fees. Here, Plaintiffs challenge Defendant’s practices regarding setting bail. In Cain, Plaintiffs claim a conflict of interest exists in the collection of those fines and fees. Here, Plaintiffs claim a conflict of interest exists in the setting and collecting of bail amounts. These claims are clearly distinguished and resolution of ones set of claims will not determine resolution of the other. Therefore, the case pending before Judge Vance is no reason to prevent or delay class certification here.
IV. CONCLUSION Accordingly, IT IS ORDERED that Plaintiffs’ motion to certify the class, R. Doc. 5, is hereby GRANTED.
New Orleans, Louisiana this 16th day of March, 2018.
________________________________ UNITED STATES DISTRICT JUDGE

 
 Case 2:17-cv-06197-EEF-MBN Document 131 Filed 08/06/18 Page 1 of 30

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE ET AL versus HARRY E. CANTRELL

*

CIVIL ACTION

*

*

No. 17-6197

*

*

SECTION “L” (5)

ORDER & REASONS Before the Court are Plaintiffs’ and Defendant’s Cross-Motions for Summary Judgment. R. Docs. 116 and 121. The parties have also filed in opposition. R. Docs. 120 and 130. Having considered the parties’ arguments and the applicable law, the Court issues this Order & Reasons. I. BACKGROUND On June 27, 2017, Plaintiffs Adrian Caliste and Brian Gisclair, individually and on behalf of others similarly situated, filed this action under 42 U.S.C. § 1983 against Orleans Parish Criminal District Magistrate Judge Harry E. Cantrell, alleging violations of their rights under the Fourteenth Amendment’s Due Process and Equal Protection Clauses. R. Doc. 1 at 25. Plaintiffs are former criminal defendants who were in the custody of the Orleans Parish Sheriff’s Office at the time the complaint was filed. R. Doc. 1 at 2-3. Defendant Cantrell is the Magistrate Judge for Orleans Parish Criminal District Court (“OPCDC”), where he is responsible for setting bail upon arrest and has a role in managing the expenditures of the Judicial Expense Fund. R. Doc. 1 at 3. In Count One, Plaintiffs allege that Judge Cantrell routinely sets a $2,500 minimum secured money bond without first considering the facts of the case to determine whether a lower bond amount or an alternative condition of release might be appropriate. R. Doc. 1 at 6. Plaintiffs further aver that Judge Cantrell requires the use of a bail bond from a commercial (for-profit) surety and does not allow arrestees to post cash bail. R. Doc. 1 at 2. In Count Two, Plaintiffs contend that Judge Cantrell has a conflict of interest because under Louisiana law, 1.8% of a

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bond amount collected from a commercial surety is allocated directly to the Court for its discretionary use. R. Doc. 1 at 2.
Plaintiffs moved to certify a class of similarly situated plaintiffs. R. Doc. 5. On March 16, 2018, the Court granted this motion and certified the class. R. Doc. 99. Plaintiffs now seek a declaratory judgement that Judge Cantrell’s bond policy, which they assert results in the creation of a modern “debtor’s prison,” and financial conflict of interest are violations of Plaintiffs’ constitutional rights. R. Doc. 1 at 26. Defendant, Judge Cantrell, denies Plaintiffs’ allegations and seeks summary judgment dismissing Plaintiffs’ complaint.
II. PRESENT MOTIONS A. Plaintiffs’ Motion for Summary Judgment (R. Doc. 116)
Plaintiffs have filed a Motion for Summary Judgment. R. Doc. 116. The Plaintiff Class seeks declaratory judgment on both of their claims. R. Doc. 116-1 at 4. First, Plaintiffs’ argue that Judge Cantrell violates their Equal Protection and Due Process rights by jailing Plaintiffs when they are unable to pay set bonds. R. Doc. 116-1 at 5. Plaintiffs argue that Judge Cantrell’s practice violates their rights against wealth-based detention and fundamental right to pretrial liberty because he sets bail without making findings that pretrial detention is necessary or making an inquiry into Plaintiffs’ ability to pay. R. Doc. 116-1 at 6, 12, 26. Second, Plaintiffs argue that since Judge Cantrell shares executive control over funds that come partly from fees on the commercial surety bonds that he sets, he has a conflict of interest in the process of setting those bonds. R. Doc. 116-1 at 33. Plaintiffs allege that this conflict violates their due process right to a neutral and detached judge. R. Doc. 116-1 at 29. For these reasons, Plaintiffs move for summary judgment. R. Doc. 116-1 at 34.
Defendant responds in opposition. R. Doc. 120. First, Judge Cantrell argues that this Court lacks the power to direct him in the performance of his duties. R. Doc. 120 at 1. Judge
2

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Cantrell argues that Plaintiffs have asked this Court to order him to follow certain protocols when he conducts bail hearings and that this Court lacks the power to direct him in this manner. R. Doc. 120 at 3. Second, regarding Plaintiffs’ request for declaratory relief, Judge Cantrell argues that any such relief would be advisory because there is no justiciable controversy. R. Doc. 120 at 5. Judge Cantrell further argues that Plaintiffs’ claims regarding his bail hearing protocol are moot because since this lawsuit he has in good faith changed his bail hearing procedures. R. Doc. 120 at 6. Understanding his heavy burden in proving mootness, Judge Cantrell has attached an affidavit describing his new colloquy and checklist used during bail hearings. R. Doc. 120-1.1
Third, Judge Cantrell argues that the procedures regarding management of the Judicial Expense Fund do not negate a fair tribunal because 1) the OPCDC can go to the state or parish if it needs more funds, 2) there is no quota or reward for adding to the fund, and 3) the judges have no personal interest in the money collected. R. Doc. 120 at 9-11. Additionally, Judge Cantrell argues that he benefits from a presumption of integrity and if this procedure makes him biased than all courts are biased because all collect fees from defendants in some way. R. Doc. 120 at 13. Finally, Judge Cantrell also argues that the fees incurred under Louisiana’s bail bond statutes do not create an impermissible bias because the Fifth Circuit has held that such fees are reasonable administrative fees. R. Doc. 120 at 18.
B. Defendant’s Motion for Summary Judgment (R. Doc. 121) In support of his motion for summary judgment, Defendant has submitted a memorandum identical to that submitted in response to Plaintiffs’ motion for summary
1 Although Judge Cantrell argues that he has already amended his bail procedures, there is some discrepancy between the statements in his affidavit where he uses language indicating in some places that he is currently following the new procedures and some language indicating that he will change his procedures in the future. Additionally, these statements contradict his current affirmation of Plaintiffs’ statement of facts. R. Doc. 121-6, 1217.
3

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judgment. R. Doc. 121-1. In opposition, Plaintiffs have submitted a memorandum identical to that submitted in reply supporting their own motion. R. Doc. 130.
III. LAW AND ANALYSIS The present motions raise questions of justiciability, the constitutionality of Judge Cantrell’s bail procedures, and his conflict of interest when he has both judicial and executive power regarding revenues of the Judicial Executive Fund. The Court acknowledges the similarities between this case and Cain v. City of New Orleans, 283 F. Supp. 3d 624 (E.D. La. 2017) (Vance, J.). The Court draws as relevant from Judge Vance’s excellent and thorough opinion, particularly as it relates to analysis of judicial conflict of interest.
A. Summary Judgment Standard Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving for summary judgment bears the initial burden of demonstrating the basis for summary judgment and identifying those portions of the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324. A genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
4

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“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are insufficient to defeat a motion for summary judgment. See Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994); Anderson, 477 U.S. at 249-50. In ruling on a summary judgment motion, a court may not resolve credibility issues or weigh evidence. See Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). Furthermore, a court must assess the evidence, review the facts and draw any appropriate inferences based on the evidence in the light most favorable to the party opposing summary judgment. See Daniels v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). With these legal principles in mind, the Court turns to the parties motion which will be discussed in turn.
B. Justiciability Defendant Cantrell’s motion for summary judgment raises several justiciability questions. First, Judge Cantrell argues that the claims in Count One are moot due to his voluntary cessation of the challenged bail procedures. Second, Judge Cantrell argues that Plaintiffs improperly seek a writ of mandamus compelling the actions of a state official. Finally, Judge Cantrell argues that the Court should abstain from granting declaratory relief in this case. The Court will discuss each argument in turn.
i. Mootness The Constitution limits the jurisdiction of federal courts to cases or controversies. U.S. Const. art. III, § 2. To satisfy this requirement, a plaintiff must have a personal interest in the case, not only at the outset, but at “all stages” of the lawsuit. Davis v. Fed. Election Comm’n, 554 U.S. 724, 732-33 (2008) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)). If a plaintiff begins a case with a sufficient personal interest but lacks that interest later in the case, the plaintiff’s claims are moot. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 189 (2000).
5

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This Court has held that Plaintiffs had the requisite personal interest for standing to bring these claims. R. Doc. 44 at 5-6. In this motion, Judge Cantrell argues that Plaintiffs have lost this personal interest and their claims are now moot. Judge Cantrell argues that since this lawsuit he intends to cease the allegedly unconstitutional bail procedures thus mooting Count One.
“Generally, any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot.” Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006). When an action is rendered moot it must be dismissed. Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990). However, “[i]t is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’” Laidlaw, 528 U.S. at 189 (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)). Accordingly, the Supreme Court has placed a “heavy burden of persuasion” on a defendant attempting to show mootness by voluntary cessation. United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968).
Judge Cantrell has filed an affidavit stating that since the inception of this litigation he has “revised the protocol [he] follow[s] in setting bail and now take[s] into consideration the following factors”:2
 There will be no minimum monetary bail amount utilized when assessing and setting bail.  The seriousness of the offense charged, including but not limited to whether the offense
is a serious crime of violence or involves a controlled dangerous substance.  The weight of the evidence against the defendant.  The previous criminal record of the defendant.
2 See FN 1 supra.
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 The ability of the defendant to give bail.  The nature and seriousness of the danger to any other person or the community that
would be posed by the defendant’s release.  The defendant’s voluntary participation in a pretrial drug testing program.  The absence or presence in the defendant of any controlled dangerous substance.  Whether the defendant is currently out on a bail undertaking on a previous felony arrest
for which he is awaiting institution of prosecution, arraignment, trial, or sentencing.  Any other circumstances affecting the probability of defendant’s appearance.  The type or form of bail.  Amount and source of defendant’s income.  Defendant’s employment status.  Number and type of defendants.  Recommendations of pre-trial services report.  Should a defendant be unable to afford the amount set, they will be entitled to an
adversarial hearing, wherein they have the right to be represented by counsel and to present any evidence and/or testimony and traverse (or deny) any evidence and/or testimony presented against them concerning the previously stated factors in determining the amount of bail. R. Doc. 120-1 at 2-3. Judge Cantrell further avers that he will now state on the record his reasoning when setting bail. R. Doc. 120-1 at 3. The Court does not doubt that Judge Cantrell is earnest in his present intent to modify his bail procedures. However, “allegations by a defendant that its voluntary conduct has mooted the plaintiff’s case require closer examination than allegations that ‘happenstance’ or official acts of third parties have mooted the case.” Fontenot v. McCraw, 777 F.3d 741, 747-48 (5th Cir. 2015) (quoting Envt’l Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008)). Accordingly, the Court has closely examined Defendant’s claims and is not satisfied that the
7

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voluntary conduct has mooted Plaintiffs’ claims regarding the alleged bail practices. Unlike cases where there has been a “formally announced change[]” regarding official policy, Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009), here the Court and Plaintiffs must rely solely on Judge Cantrell’s statement that he has changed his procedures and will not change them back again. Judge Cantrell has submitted no evidence of the implementation of these new bail procedures. These changes were made only after this litigation was commenced and Judge Cantrell’s affidavit is not binding on his future procedures. For these reasons, the Court finds that Judge Cantrell has not met his heavy burden of convincing the Court that the challenged bail procedures could not reasonably be expected to recur. Therefore, Plaintiffs’ claims are not moot.3
ii. Mandamus Next, Judge Cantrell argues that Plaintiffs’ have requested a writ of mandamus disguised as a request for declaratory relief. “[F]ederal courts have no general power to issue writs of mandamus to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought.” Lamar v. 118th Judicial Dist. Court of Tex., 440 F.2d 383, 384 (5th Cir. 1971). However, federal judges have the power to provide declaratory and injunctive relief against state judicial officers and these remedies are unequivocally available via § 1983. See 42 U.S.C. § 1983 (“[I]n an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”); Pulliam v. Allen, 466
3 Additionally, the Court notes that Judge Cantrell’s affidavit, if it were sufficient to meet his heavy burden, does not resolve all of the issues before the Court regarding the Count One allegations. Specifically, Judge Cantrell’s affidavit does not provide a standard to be applied when determining whether a defendant qualifies for alternative conditions of release, nor does it provide that defendants will have a right to representative counsel at initial bail hearings.
8

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U.S. 522, 541-42 (1984); Holloway v. Walker, 765 F.2d 517, 525 (5th Cir. 1985).
Judge Cantrell claims that Plaintiffs are asking the Court to direct him in the exercise of
his judicial duties, specifically to order him to change his bail procedures in specific ways.
However, Plaintiffs’ complaint and motion for summary judgement merely asks the Court to
provide declaratory relief regarding Judge Cantrell’s bail procedures.
A writ of mandamus compels the defendant to perform a certain act. See Mandamus, Black’s Law Dictionary (10th ed. 2014). By contrast, the declaratory judgments plaintiffs seek . . . would merely state that certain of defendant[’s] practices are unconstitutional. The Supreme Court has recognized the authority of federal courts to issue such relief against state judges. See Pulliam, 466 U.S. at 526 (affirming attorneys’ fees award in case where district court declared magistrate’s practice of “require[ing] bond for nonincarcerable offenses . . . to be a violation of due process and equal protection and enjoined it”). Thus, the Court rejects defendant[’s] argument that plaintiffs’ claims for declaratory relief are in fact requests for a writ of mandamus.
Cain, 281 F. Supp. 3d at 645-46 (footnotes omitted). Because here the alleged acts were
omissions taken in Judge Cantrell’s judicial capacity, this Court has authority under § 1983.
iii. Declaratory Judgment Act
Judge Cantrell further argues that it would be inappropriate for the Court to grant a
declaratory judgment because the ruling would be merely advisory. The Declaratory Judgment
Act is “an enabling Act, which confers a discretion on the courts rather than an absolute right
upon the litigant.” Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Public Serv.
Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 241 (1952)). As an initial step in a declaratory
judgment suit, the Court must determine “whether the declaratory action is justiciable.” Sherwin-
Williams Co. v. Holmes Cty., 343 F.3d 383, 387 (5th Cir. 2003). Defendant argues that the Count
One claims are not justiciable because there is no “actual controversy.” However, the Court has
already found that Plaintiffs’ claims are not moot. Accordingly, the Court may consider
Plaintiffs’ claims for declaratory relief.
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iv. Brillhart-Wilton Abstention
Finally, Judge Cantrell argues that the Court should abstain from deciding this case under
the Brillhart-Wilton doctrine. Judge Cantrell argues that while the Declaratory Judgment Act
grants federal courts discretion, the Court should decline to exercise this discretion. However, the
cases cited by Judge Cantrell narrowly apply to situations where a federal court sitting in
diversity is asked to grant declaratory judgment on a state law matter. Wilton, 515 U.S. at 280,
290; Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491, 493 (1942). Additionally, the Court has
already considered and rejected Defendant’s previous abstention arguments under the Younger
doctrine. R. Doc. 44 at 6-8.
Accordingly, this analysis is inapplicable to the matter at hand. Furthermore, even if this
analysis were applicable, the Fifth Circuit reasoning under St. Paul Ins. Co. v. Trejo, 39 F.3d 585
(5th Cir. 1994), and Sherwin-Williams Co. v. Holmes Cty., leads the Court away from abstention.
In Brillhart the Court was concerned with whether a federal suit “can be better settled in the state
court.” 316 U.S. at 495. The Fifth Circuit employs seven nonexclusive factors for this purpose, which it first fashioned in St. Paul Ins. Co. v. Trejo.4 These factors are:
1) Whether there is a pending state action in which all of the matters in controversy may be fully litigated, 2) whether the plaintiff filed suit in anticipation of a lawsuit filed by the defendant, 3) whether the plaintiff engaged in forum shopping in bringing the suit, 4) whether possible inequities in allowing the declaratory plaintiff to gain precedence in time or to change forums exist, 5) whether the federal court is a convenient forum for the parties and witnesses, . . . 6) whether retaining the lawsuit in federal court would serve the purposes of judicial economy, and [7)] whether the federal court is being called on to construe a state judicial decree . . . .
Trejo, 39 F.3d at 590–91 (internal citations omitted). The Fifth Circuit has since updated its
Trejo analysis to include: 1)“[t]he presence of federal law questions, [2)] their relationship to
4 Trejo was decided prior to the Supreme Court’s decision in Wilton. However, the Fifth Circuit continues to apply the Trejo factors with some additional and/or clarified considerations laid out in Sherwin-Williams.
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state law questions, [3)] the ability of the federal court to resolve state law issues, and [4)]the ability of a state court to resolve the federal law issues.” Sherwin-Williams, 343 F.3d at 396. “‘The presence of federal law issues must always be a major consideration weighing against surrender’ of federal jurisdiction.” Id. (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 26 (1983)). “The presence of federal law issues is especially important when there is no pending state court proceeding to which the federal district court can defer.” Id.
Here, the issue before the Court is a federal law issue and there are no pending state court proceedings to consider. Plaintiffs have filed a § 1983 claim requesting declaratory relief recognizing their Constitutional rights. None of the above factors apply to this situation or suggest that this suit would be “better settled in state court.”
Accordingly, the Court finds that the matters before it are justiciable and finds no reason to abstain from ruling. The Court now moves to a consideration of the Plaintiffs’ substantive arguments seeking summary judgment.
C. Count One: Judge Cantrell’s Bail Procedures In Count One, Plaintiffs’ main argument is that Judge Cantrell’s bail procedures violate their constitutional rights because he imprisons criminal defendants solely based on their inability to pay the set bail. Plaintiffs specifically challenge Defendant’s practice of setting bail without considering alternative conditions of release or ability to pay. The facts regarding Judge Cantrell’s bail procedures are undisputed. R. Docs. 121-6, 1217. Judge Cantrell agrees that the following are standard practices for setting bail in his court:  Introduction and overview of bail setting process.  Qualification of defendants for public defender services, including questions regarding employment, income, and dependents.  Time for defendants to meet with their attorneys.
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 Judge Cantrell uses the background information provided by the public defender to determine the conditions of release or detention; “he does not ask additional questions.”
 Judge “Cantrell has told public defenders that he would hold them in contempt when they have attempted to argue for lower bond amounts or RORs for their clients.”
 Judge “Cantrell does not determine whether the financial condition of release that he imposes will result in pretrial detention.”
R. Doc. 121-7 at 3-6. It is clear that under these procedures Judge Cantrell does not request much financial
information from criminal defendants prior to determining the amount of their bail. Nor does he “consider or make findings concerning alternative conditions of release when he requires secured financial conditions, and does not make any findings that pretrial detention is necessary to serve any particular government interest if a secured financial condition will result in detention.” R. Doc. 121-7 at 6-7. Transcript evidence in the record confirms these facts. R. Docs. 121-7. Plaintiffs in this case were imprisoned prior to trial because they were unable to pay the set bail. Transcripts from their bail hearings demonstrate that Judge Cantrell did not inquire regarding their ability to post bail, nor did he provide reasoning for his rejection of alternative conditions of release.
As an example, Ms. Mishana Johnson was detained prior to trial on a charge of simple battery. R. Doc. 121-7 at 4. Judge Cantrell appointed a public defender to represent Ms. Johnson after learning that she did not have counsel and worked at McDonald’s. R. Doc. 121-7 at 4. Her appointed counsel requested $1000 bail based on employment status and lack of risk factors. R. Doc. 121-7 at 4. Judge Cantrell set bail at $5000 without inquiry into Ms. Johnson’s ability to pay and informed the public defender that he does not set bail lower than $2500. R. Doc. 121-7 at 5. Judge Cantrell later reprimanded another public defender for requesting release on recognizance (“ROR”) or a $1000 bond. R. Doc. 121-7 at 5. The attorney argued that his client
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was employed in a low-wage job and was a college student. R. Doc. 121-7 at 5. Judge Cantrell again set a $5000 bond without inquiry into the defendant’s ability to pay or providing reasoning for his rejection of alternative conditions of release. R. Doc. 121-7 at 5.
More disturbing is the colloquy regarding bail set for Ms. Ashley Jackson on June 12, 2017. R. Doc. 121-7 at 5. Judge Cantrell had agreed to an ROR for this defendant until he realized that her listed address was a homeless shelter. R. Doc. 121-7 at 5. Subsequently, stating his concerns regarding the court’s ability to contact Ms. Jackson, he set a secured $2500 bond. R. Doc. 121-7 at 5. After argument with defense counsel, Judge Cantrell stated that he was “not punishing [the defendant] for being poor [but that he was] punishing her because [the court could] not get in touch with her.” R. Doc. 121-7 at 6.
This evidence suggests that Judge Cantrell regularly sets bail without considering the defendant’s ability pay or qualification for alternative conditions of release and that these practices regularly result in pretrial detention based on inability to pay bail. Judge Cantrell has not argued that these descriptions of his practices are inaccurate and has made no substantive constitutional arguments in defense of these practices.
Plaintiffs argue that these practices violate their due process and equal protection rights under the Fourteenth Amendment. The Due Process Clause of the Fourteenth Amendment provides that “[n]o state . . . shall deprive any person of life, liberty, or property without due process of law . . . .” U.S. Const. Amend. XIV. It protects individuals against two types of government action. “Substantive Due Process” prevents the government from engaging in conduct that “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172 (1952), or interferes with rights “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325–26 (1937). “Procedural Due Process” ensures that government action depriving a person of life, liberty, or property is implemented in a fair manner. Mathews v. Eldridge, 424
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U.S. 319, 335 (1976).
Although “[d]ue process and equal protection principles converge” in cases involving the criminal justice system’s treatment of indigent individuals, Bearden v. Georgia, 461 U.S. 660, 665 (1983), plaintiffs’ argument sounds in procedural due process. Thus, the familiar framework set out in Mathews v. Eldridge, 424 U.S. 319 (1976), applies. See Turner v. Rogers, 564 U.S. 431, 444– 45 (2011) (applying Mathews v. Eldridge to civil contempt proceedings).
Cain, 281 F. Supp. 3d at 649.
“[S]tandard analysis under [the Due Process Clause] proceeds in two steps: We first ask
whether there exists a liberty or property interest of which a person has been deprived, and if so
we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout
v. Cooke, 562 U.S. 216, 219 (2011). Here, Plaintiffs successfully assert that they have been
deprived of a liberty interest based on “the well-established principle that an indigent criminal
defendant may not be imprisoned solely because of her indigence.” Cain, 281 F. Supp. 3d at 649
(citing Tate v. Short, 401 U.S. 395, 398 (1971); United States v. Voda, 994 F.2d 149, 154 n.13
(5th Cir. 1993)). Additionally, Plaintiffs have been deprived of their fundamental right to pretrial
liberty. United States v. Salerno, 481 U.S. 739, 750 (1987); see also Foucha v. Louisiana, 504
U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty
protected by the Due Process Clause from arbitrary governmental action.”); Jones v. United
States, 463 U.S. 354, 361 (1983) (quoting Addington v. Texas, 441 U.S. 418, 425 (1979)) (“It is
clear that ‘commitment for any purpose constitutes a significant deprivation of liberty that
requires due process protection.’”).
Under Mathews, courts consider three factors to identify the requirements of procedural
due process when the state endeavors to deprive someone of these rights:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the
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function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 424 U.S. at 335. The Supreme Court has discussed the types of procedural safeguards required to authorize pretrial detention under the Bail Reform Act. Salerno, 481 U.S. at 751-52 (finding that the procedures under the Bail Reform Act were “specifically designed to further the accuracy of th[e] determination” of “the likelihood of future dangerousness” and did not violate due process). Among the valuable procedural safeguards noted in Salerno were “right to counsel at the detention hearing”; the opportunity to testify, present evidence, and cross-examine witnesses; standards for the judicial officer “determining the appropriateness of detention”; government burden of clear and convincing evidence; and requirement of findings of fact and reasons for detention from the judicial officer. Id. The Supreme Court has also articulated additional procedural safeguards in several different contexts including pretrial and post-conviction detention.5 In Bearden v. Georgia, the Supreme Court held that “a sentencing court can[not] revoke a defendant’s probation for failure to pay the imposed fine and restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate.” 461 U.S. 660, 665, 673-74 (1983). There, the state court had imprisoned Bearden for his inability to pay a fine but had not asked why he was unable to pay or considered other alternative means of enforcing the fine. Id. at 674. The Court reasoned that for the state court to simply convert the fine into a prison sentence without “inquir[ing] into the reasons for the failure to pay” or finding that “alternate measures [we]re not adequate to meet the State’s interests . . . would deprive [Bearden] of his . . . freedom simply because, through no fault of his, he [could not] pay the
5 This Court finds that the post-conviction detention cases, while not directly on point, are highly relevant because the liberty interests of presumptively innocent, pretrial detainees cannot be less than, and are generally considered greater than, those of convicted defendants.
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fine.” Id. at 672-73. Moreover, in Turner v. Rogers, the Supreme Court held that court-appointed counsel was
not required in a civil contempt proceeding if sufficient alternative procedures were provided “equivalent to . . . adequate notice of the importance of ability to pay, fair opportunity to present, and to dispute, relevant information, and court findings.” 564 U.S. 431, 448 (2011). There, the Court reasoned that “[g]iven the importance of the [liberty] interest at stake, it is obviously important to assure accurate decisionmaking in respect to the key ‘ability to pay’ question.” Id. at 445.
While there are clear differences between the facts of these cases and the facts at issue here, what is manifest and pertinent is the Supreme Court’s emphasis on the due process requirements of an informed inquiry into the ability to pay and findings on the record regarding that ability prior to detention based on failure to pay. Accordingly, the Court finds that these cases are useful here because Plaintiffs have been subjected to pretrial imprisonment, as a result of their inability to pay a court ordered sum.
With the principles of Salerno, Bearden, and Turner in mind, the Court applies the Mathews factors to the present facts.
First, plaintiffs’ interest in securing their “freedom ‘from bodily restraint[ ]’ lies ‘at the core of the liberty protected by the Due Process Clause.’” Turner, 564 U.S. at 445 (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Plaintiffs’ liberty interest weighs heavily in favor of procedural safeguards provided before imprisonment. Cain, 281 F. Supp. 3d at 651. “Second, the risk of erroneous deprivation without an inquiry into ability to pay is high.” Id. The record suggests that many criminal defendants, including Named Plaintiffs, have been imprisoned solely because they are unable to pay the bail amount set by Judge Cantrell. These are criminal defendants who have been found to be indigent for the purpose of appointing
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counsel. Accordingly, the inquiry into the ability to pay “must involve at least notice and opportunity to be heard, [and express findings in the record] as suggested by Turner; an abilityto-pay inquiry without these basic procedural protections would likely be ineffective.” Id.
Third, Judge Cantrell has not suggested any government interest6 that would prevent or discourage an inquiry into the ability to pay. Rather, he seems to agree that it is appropriate to consider “[t]he ability of the defendant to give bail.” R. Doc. 120-1 at 2. However, this simple consideration is inadequate under the principles laid out by the Supreme Court. Bearden requires that this inquiry include court consideration of the reasons why a criminal defendant cannot pay and of alternative measures prior to imprisonment. 461 U.S. at 672; see Cain, 281 F. Supp. 3d at 652.
Here, it is clear that Judge Cantrell did not conduct an inquiry into ability to pay or include satisfactory procedural safeguards to that inquiry when setting bail. To satisfy the Due Process principles articulated by Supreme Court precedent, Judge Cantrell must conduct an inquiry into criminal defendants’ ability to pay prior to pretrial detention. “This inquiry must involve certain procedural safeguards, especially notice to the individual of the importance of ability to pay and an opportunity to be heard on the issue. If an individual is unable to pay, then [he] must consider alternative measures before imprisoning the individual.” Cain, 281 F. Supp. 3d at 652.
Plaintiffs suggest that due process requires additional procedures in order to “ensure the accuracy of [a] finding that pretrial . . . detention is necessary.” R. Doc. 116-1 at 14. Plaintiffs cite Salerno and the safeguards provided under the Bail Reform Act as the standard for these additional procedural safeguards because they provide confidence that a sufficient inquiry into
6 Defendant has not made any constitutional arguments regarding the substance of Plaintiffs’ Count One claims.
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ability to pay is conducted prior to pretrial detention. In Salerno, the Court noted that the Bail Reform Act is “narrowly focuse[d] on individuals who have been arrested for a specific category of extremely serious offenses.” 481 U.S. at 750. Even with this heightened government interest, “[i]n a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Id. The Court then praised other procedural safeguards found to be sufficient under Due Process including: findings of fact, statements of reasons for decisions, and the right to counsel.” Id. at 750-51; see also Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (listing the minimum requirements of due process when revoking probation). These procedures are required for defendants charged with committing serious offenses. How much more important are these safeguards when considering pretrial detention for criminal defendants who may not be accused of committing extremely serious offenses?
First, Plaintiff suggests that Due Process requires proof under the clear and convincing standard “that pretrial detention is necessary to mitigate either a risk of flight or a danger to the community.” R. Doc. 116-1 at 16. Beginning with Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court has held that, when scrutinized under procedural due process criterion, deprivation of liberty requires a heightened standard. There, when considering the government’s interest in “protect[ing] the community from the dangerous tendencies of some who are mentally ill,” the Court reasoned that the clear and convincing standard struck an appropriate balance between scrupulous protection of individual liberty interests and the government interest in public safety. Id. at 424, 426.
In cases where physical liberty is at stake in all kinds of situations, the Court consistently applies the clear and convincing standard. Foucha, 504 U.S. at 82; Cruzan ex rel. Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 282-83 (1990); Santosky v. Kramer, 455 U.S. 745, 756
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(1982); Addington, 441 U.S. at 433; see also Woodby v. INS, 385 U.S. 276, 286 (1966);
Schneiderman v. United States, 320 U.S. 118, 123 (1943). While this Court has not found a case
requiring the clear and convincing standard in the particular circumstances of this case,7
determining pretrial detention based specifically on risk of flight, the Court is convinced of the
vital importance of the individual’s interest in pretrial liberty recognized by the Supreme Court.
In a Mathews analysis of the balance required by Due Process of the private liberty interest and
interest of the government in ensuring that a criminal defendant appears in court, the Court
agrees with the views expressed in the concurring opinion in United States v. Motamedi, 767
F.2d 1403, 1409 (9th Cir. 1985) (Boochever, J., concurring in part and dissenting in part).8
[T]he consequences to the defendant from an erroneous pretrial detention are certain and grave. The potential harm to society, although also significant, is speculative, because pretrial detention is based on the possibility, rather than the certainty, that a particular defendant will fail to appear. Moreover, society’s interest in increasing the probability of detention is undercut by the fact that it has no interest in erroneously detaining a defendant who can give reasonable assurances that he will appear. I conclude therefore that the injury to the individual from an erroneous decision is greater than the potential harm to society, and that under Addington due process requires that society bear a greater portion of the risk of error: the government must prove the facts supporting a finding of flight risk by clear and convincing evidence.
Id. at 1415.
Second, Plaintiffs suggest that arrestees must be represented by counsel. R. Doc. 116-1 at
24. The importance of the right to counsel is evident from its inclusion in the Bill of Rights. The
Sixth Amendment requires that the government provide counsel for those who cannot afford it at
“critical stages” of criminal proceedings. Bell v. Cone, 535 U.S. 685, 695-96 (2002). The
7 Case law considering the standard required under the Bail Reform Act alone has held that the preponderance of the evidence standard is sufficient. See e.g., United States v. McConnell, 842 F.2d 105 (5th Cir. 1988). However, these cases did not consider the burden of proof require by the Due Process Clause of the Fourteenth Amendment. See e.g., McConnell, 842 F.2d 105; United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985). 8 In United States v. Motamedi, the Ninth Circuit was confronted only with the question of the proper standard required by the Bail Reform Act. The Court finds Judge Boochever’s reasoning persuasive when conducting an analysis of the standard required by the Constitution.
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Supreme Court has held that “critical stages” are those that “h[o]ld significant consequences for the accused.” Id. at 696; Coleman v. Alabama, 399 U.S. 1, 10 (1970) (holding that a preliminary bail hearing is a “critical stage . . . at which the accused is . . . entitled to [counsel]”). There is no question that the issue of pretrial detention is an issue of significant consequence for the accused.
Under a Mathews analysis, the Court finds that without representative counsel the risk of erroneous pretrial detention is high. Preliminary hearings can be complex and difficult to navigate for lay individuals and many, following arrest, lack access to other resources that would allow them to present their best case. Considering the already established vital importance of pretrial liberty, assistance of counsel is of the utmost value at a bail hearing.
Judge Cantrell does not argue this point. In fact, the record shows that public defenders are regularly provided for those individuals found to be indigent at their initial appearance before Judge Cantrell. The Court commends this practice and encourages its continuance. Beyond this encouragement, the Court finds that the right to counsel at a bail hearing to determine pretrial detention is also required by due process. The interests of the government are mixed regarding provision of counsel at this stage. It is certainly a financial burden on the state to provide attorneys for the indigent. However, this burden is outweighed not only by the individual’s great interest in the accuracy of the outcome of the hearing, but also by the government’s interest in that accuracy and the financial burden that may be lifted by releasing those arrestees who do not require pretrial detention. Accordingly, the Mathews test demonstrates that due process requires representative counsel at pretrial detention hearings.
As discussed above, the record indicates that Judge Cantrell’s bail procedures have not provided notice of the importance of the issue of the criminal defendant’s ability to pay, inquiry into the ability to pay, findings on the record regarding ability to pay and consideration of alternative conditions of release, or application of a legal standard in the determination of the
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necessity of pretrial detention. Accordingly, these procedures violate Plaintiffs’ procedural due process rights; Plaintiffs’ are entitled to summary judgment on Count One and it is appropriate to grant Plaintiffs’ motion for declaratory judgment.
The Court commends Judge Cantrell’s expressed willingness to mend the bail procedures in his court to comply with due process requirements. R. Doc. 120-1. As a summary of the above discussed Mathews analysis, the Court finds that in the context of hearings to determine pretrial detention Due Process requires:
1) an inquiry into the arrestee’s ability to pay, including notice of the importance of this issue and the ability to be heard on this issue; 2) consideration of alternative conditions of release, including findings on the record applying the clear and convincing standard and explaining why an arrestee does not qualify for alternative conditions of release; and 3) representative counsel.
D. Count Two: Conflict of Interest In Count Two, Plaintiffs argue that Judge Cantrell has an unconstitutional conflict of interest that violates due process when he sets bail. Plaintiffs challenge Judge Cantrell’s multipurpose role in determining their ability to pay bail, the amount of bail upon which pretrial release is conditioned, and managing the Judicial Expense Fund, a portion of which comes from fees levied on commercial surety bonds. Plaintiffs argue that Judge Cantrell’s management role over this fund creates an unconstitutional conflict of interest that deprives them of their right to a neutral fact finder in pretrial detention hearings.
i. The Judicial Expense Fund Louisiana Revised Statute 13:1381.4 sets up the Judicial Expense Fund (“the Fund”) for the Orleans Parish Criminal District Court (“OPCDC”). The Fund receives revenue from fines,
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fees, costs, and forfeitures imposed by the OPCDC. See La. Rev. Stat. § 13:1381.4. Approximately $1 million per year in revenue comes from fees levied on commercial surety bonds, representing roughly 20-25% of the total Fund in a given year. R. Doc. 121-7 at 9. The fund is controlled by the Judges of the OPCDC and “may be used for any purpose connected with, incidental to, or related to the proper administration or function of the court or the office of the judges . . . .” La. Rev. Stat. § 13:1381.4(C). However, the Fund may not be used to pay any judge’s salary. Id. § 13.1381.4(D). Generally, the Fund is used to finance court operations including, but not limited to, staff salaries and benefits, conferences and legal education, ceremonies, office supplies, law books, jury expenses, and other services. R. Doc. 121-7 at 8.
ii. Legal Standards As discussed by the Court in Cain v. City of New Orleans, the unbiased judge or neutral fact finder has long been considered “essential to due process.” Pub. Citizen, Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2001) (quoting Johnson v. Mississippi, 403 U.S. 212, 216 (1971)). While disqualification of a judge is not common, the Supreme Court has held that when a judge has financial interests in the matter before him due process is violated. In Tumey v. Ohio, the Supreme Court “held that the mayor, acting as judge, was disqualified from deciding Tumey’s case ‘both because of his direct pecuniary interest in the outcome, and because of his official motive to convict and to graduate the fine to help the financial needs of the village.’” Cain, 281 F. Supp. 3d at 655 (quoting Tumey v. Ohio, 273 U.S. 510, 535 (1927)). There, the mayor acted as judge in courts that levied fines, some of which went to village funds. Tumey, 273 U.S. at 52122. These funds covered some court expenses as well as some fees paid to the mayor himself. Id. at 522. Later, in Ward v. Village of Monroeville, the Court held that a mayor’s court violated due process when it financed a “major part” of the city funds that were also managed by the mayor.
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409 U.S. 57, 58, 60 (1972). There, the Court reasoned that the principle articulated in Tumey did not rely on the mayor’s personal interest in the funds. Id. at 60. Rather, the Court articulated the following test: “whether the . . . situation is one ‘which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused.’” Id. at 60 (quoting Tumey, 273 U.S. at 532).
More recently, the Court has clarified that finding a conflict of interest in violation of due process “do[es] not require proof of actual bias.” Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 883 (2009). Rather, when determining whether the Due Process Clause requires judicial recusal due to a conflict of interest, the correct question is “whether, ‘under a realistic appraisal of psychological tendencies and human weakness,’ the interest ‘poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.’” Id. at 883-84 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
The Fifth Circuit applied these principles in Brown v. Vance, 637 F.2d 272, 274, 282 (5th Cir. 1981), holding that a fee system that compensated justices of the peace based on volume of cases filed was unconstitutional. There, the Court reasoned that the Supreme Court’s concern in Tumey and Ward
was not . . . the probity of an individual judge or perhaps even, of the great majority of judges . . . rather [it was] in the inherent defect in the legislative framework arising from the vulnerability of the average man-as the system works in practice and as it appears to defendants and to the public. Id. at 284. Accordingly, the Court found that the undeniable opportunity and “possible temptation to the average man as a judge to forget the burden of proof required” created by the system was sufficient to “deprive[] criminal defendants of their due process right to a trial before
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an impartial tribunal.” Id. at 282 (quoting Tumey, 273 U.S. at 532). Most recently, this Court applied this line of cases holding that collection of costs and
fees by judges in Orleans Criminal District Court who also administer those monies as part of the Judicial Expense Fund had an “institutional incentive[ that] create[d] an impermissible conflict of interest when they determine, or are supposed to determine, plaintiffs’ ability to pay fines and fees.” Cain, 281 F. Supp. 3d at 659. The Cain case dealt with the same Judicial Expense Fund at issue in this case and a different source of revenue also determined by judges. There, the relevant facts included the above discussed management of the Judicial Expense Fund by the judges and those same judges determination of ability to pay the fines and fees going to the Fund. Id. at 654.
The Court in Cain reasoned that “[b]y no fault of their own, the Judges’ ‘executive responsibilities for [court] finances may make [them] partisan to maintain the high level of contribution,’ . . . from criminal defendants.” Id. at 657 (quoting Ward, 409 U.S. at 60). For that reason, the Court found that the judge’s “substantial” conflict of interest in adjudicating plaintiffs’ ability to pay fines and fees “offend[ed] due process” “[s]o long as the Judges control and heavily rely on fines and fees revenue.” Id. at 657-58.
iii. Analysis Here, it is clear from the record that Judge Cantrell participates in the management of the Fund, sets the amount of bail, and determines arrestee’s ability to pay bail. R. Doc. 121-7 at 8. As discussed above, the Fund is partially financed by fees levied on commercial surety bonds. Judges, including Judge Cantrell then use these funds to finance court operations. Approximately $1,000,000 gained from bond fees is deposited into the Fund each year.9 This is roughly 20-25%
9 The Fund gained $821,371 in bond fees in 2012, $1,062,224 in 2013, $1,026,282 in 2014, $1,008,108 in 2015, $848,089 in 2016, and $839,006 in 2017. R. Doc. 121-7 at 9.
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of the Fund’s total revenue in a given year.10 R. Doc. 121-7 at 9. “This funding structure puts the Judges in the difficult position of not having sufficient funds to staff their offices unless they impose and collect sufficient [monies] from a largely indigent population of criminal defendants.” Cain, 281 F. Supp. 3d at 655.
Judge Cantrell’s participation in the management of bond fee revenue creates a conflict of interest because he is also responsible for determining whether a pretrial detainee is able to pay bail and the appropriate amount of bail. As stated above, due process requires that Judge Cantrell make an inquiry regarding an arrestee’s ability to pay and consider alternative conditions of release. However, Judge Cantrell also has a financial interest in these determinations as well as the determination of the amount of bail because revenue collected as a percentage of the bail set by him is promptly sent to the Fund. See id. Accordingly, Judge Cantrell “ha[s] an institutional incentive to find that criminal defendants are able to pay bail” and to set higher bail amounts. Id.
[Defendant Cantrell’s] dual role, as [an] adjudicator who determine[s] ability to pay [and amount of bail] and as manager[] of the OPCDC budget, offer[s] a possible temptation to find that indigent criminal defendants are able to pay [bail and higher amounts of bail]. This “inherent defect in the legislative framework” arises not from the bias of any particular Judge, but “from the vulnerability of the average man—as the system works in practice and as it appears to defendants and to the public.” Id. (quoting Brown, 637 F.2d at 284). The Tumey Court further reasoned that to offend due process the judicial conflict of interest must be substantial. 273 U.S. at 534 (“The minor penalties usually attaching to the ordinances of a village council, or to the misdemeanors in which the mayor may pronounce final judgment without a jury, do not involve any such addition to the revenue of the village as to
10 The revenue from bond fees represented 20% of the total Fund revenue in 2012, 25.9% in 2013, 26.1% in 2014, 25.5% in 2015, 21% in 2016, and 19% in 2017. R. Doc. 121-7 at 9.
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justify the fear that the mayor would be influenced in his judicial judgment by that fact.); Cain, 281 F. Supp. 3d at 657. “[T]he proper question is ‘whether the official motive here is “strong,” so that it “reasonably warrants fear of partisan influence on the judgment.”’” Id. (quoting Alpha Epsilon Phi Tau Chapter Hous. Ass’n v. City of Berkeley, 114 F.3d 840, 847 (9th Cir. 1997)).
Here, it is clear that Judge Cantrell’s, as well as that of the OPCDC, institutional interest in the fees derived from commercial surety bonds is substantial. As discussed above, the percentage of the Fund derived from these fees is roughly 25% and these funds make up a considerable portion of the salaries and benefits for judicial employees. In Cain, the Court found that a similar percentage of the Fund was enough to make the judges’ conflict of interest substantial. Id. at 657-58 (“Fines and fees revenue is obviously important to the Judges; fines and fees provide approximately 10% of the total OPCDC budget and one quarter of the Judicial Expense Fund.”).
As explained by the Court in Cain, this conflict of interest is not created by Judge Cantrell, nor is it his fault. The conflict of interest is “the unfortunate result of the financing structure” and lack of sufficient funding from the state and local governments for the criminal justice system. Id. at 658. However, the source of the conflict does not change the fact that as long as Judge Cantrell participates in the control of bond fee revenue and the OPCDC relies on it as a substantial source of funding, Judge Cantrell’s determination of Plaintiffs’ ability to pay bail and the amount of that bail is in violation of due process. See id.
Defendant makes several arguments that his dual role in setting bail and administering the Fund do not offend due process requirements. The Court will consider each in turn.
First, Judge Cantrell argues that the Fund system does not create a conflict of interest because if the OPCDC needs additional funds it can request them from the state legislature or local parish government. R. Doc. 120 at 9. The Court approaches this claim with some
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incredulity. Given the substantial percentage of the Fund coming from bond fees, the Court finds it implausible that these revenues would be easily replaced by solicitation of state and local officials. Furthermore, OPCDC officials themselves have noted the significance of this amount of revenue and its sources to the Fund. See Cain, 281 F. Supp. 3d at 658.11
Second, Judge Cantrell argues that the revenues in the Fund are publically audited and used appropriately. The Court finds this fact irrelevant to the issues before it as Plaintiffs are not arguing that the use of the revenues violates their constitutional rights, but rather that the determination of those revenues and control over them by the same individual is the problem.
Third, Judge Cantrell argues that he is not subjected to a quota, receives no rewards based on amount of revenue collected, and has no personal interest in the Fund. The Court finds that it is not necessary for Judge Cantrell to have a quota, punishment, or reward associated with the Fund in order to have a conflict of interest. The significance of these funds for the payment of personnel salaries and other administrative needs, approximately $250,000 per chambers, is sufficient incentive to act as a “possible temptation” to the “average man.” Additionally, “[t]hat [Judge Cantrell] ha[s] an institutional, rather than direct and individual, interest in maximizing [bond fee] revenue is immaterial.” Cain, 281 F. Supp. 3d at 656. “Ward itself involved a mayor who had no direct, personal interest in traffic fine revenue; his interest related solely to his ‘executive responsibilities for village finances.’ 409 U.S. at 60. Likewise, [Judge Cantrell’s] interest in [bond fee] revenue is related to [his] executive responsibilities for OPCDC finances.” Id. at 656-57.
Fourth, Judge Cantrell argues that all courts are partially funded by fees from criminal
11 The Court also notes that the Affidavit testimony submitted to support this argument is the same testimony provided to Judge Vance in the Cain case. R. Doc. 120-2. Judge Vance did not find the argument negated her finding that the “OPCDC depends heavily on fines and fees revenue” which also makes up approximately 25% of the Fund. Cain, 281 F. Supp. 3d at 658.
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defendants and if this funding offends due process then no courts will be functional. Defendant misses the point here because the problem is not specifically with the fact that the court is partially funded by fees from criminal defendants and those that utilize the court system. Rather the problem lies with the inherent temptation and conflict of interest when the same official is determining ability to pay bail, and the amount of that bail, and also managing the funds collected from fees on that bail.
Fifth, Judge Cantrell argues that Plaintiffs cannot overcome the “presumption of honesty and integrity of judges.” R. Doc. 120 at 13 (citing Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1052-53 (5th Cir. 1997)). However, in Brown v. Vance, when reviewing the district court’s use of this standard, the Fifth Circuit found that the district court had erred. 637 F.2d at 283.
There is no language in Tumey or Ward qualifying the “possible temptation” standard by the necessity of overcoming the presumption of probity in favor of adjudicators. That added burden comes from Withrow v. Larkin, 421 U.S. 35, upon which the district court and the defendant strongly relied. But the question in Withrow was whether a board of physicians could exercise both investigative and adjudicative functions. Id. Likewise, the case cited by Judge Cantrell involved the potential bias of a school board rather than a judge. Valley, 118 F.3d at 1049. Accordingly, the proper standard has been stated above, that the interest under Tumey and Ward is not the actual bias or integrity of an individual judge, but rather “the vulnerability of the average man-as the system works in practice and as it appears to defendants and to the public [and] the possibility that judges will fail to hold ‘the balance nice, clear and true.’” Brown, 637 F.2d at 284. Furthermore, it is not only important that justice be done; it is equally important that justice appear to be done. The appearance of justice is vital to perpetuation of the rule of law, a concept upon which our society is based. Finally, Judge Cantrell raises Broussard v. Parish of Orleans arguing that the bail bond statutes do not create an unconstitutional bias. The Court has previously addressed the relevance
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of Broussard in the proper party defendant context. R. Doc. 81 at 6. The Court again finds that Broussard is not relevant to the issue of judicial conflict of interest in this case. In Broussard the plaintiffs challenged the constitutionality of Louisiana bail statutes rather than alleging bias of individual judicial officers. 318 F.3d 644, 647 (5th Cir. 2003). There, the Fifth Circuit affirmed the district court finding that Tumey and Ward did not apply because the defendants, sheriffs, were not exercising a judicial function. Id. at 662. In contrast, Judge Cantrell does exercise a judicial function when he, sitting as Magistrate Judge, determines Plaintiffs’ ability to pay bail and the amount of that bail. Therefore, it is appropriate to apply the Tumey and Ward tests here when determining whether there is an unconstitutional conflict of interest.
The Court finds none of these arguments persuasive, and finds that Plaintiffs have succeeded in demonstrating that Judge Cantrell’s participation in the management of the Fund in conjunction with his determination of Plaintiffs’ ability to pay bail and the amount of that bail is a substantial conflict of interest that produces a “possible temptation . . . not to hold the balance nice, clear, and true between the state and the accused.” Ward, 409 U.S. at 60 (quoting Tumey, 273 U.S. at 532). Accordingly, Plaintiffs are entitled to summary judgment on Count Two and are entitled to a declaratory judgment that Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines their ability to pay bail and sets the amount of that bail.
IV. CONCLUSION As articulated above, IT IS ORDERED that Plaintiffs’ motion for summary judgment, R. Doc. 116, is hereby GRANTED and the Court provides declaratory relief as laid out above. IT IS FURTHER ORDERED that Defendant’s motion for summary judgment, R. Doc. 121, is hereby DENIED.
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Case 2:17-cv-06197-EEF-MBN Document 131 Filed 08/06/18 Page 30 of 30 New Orleans, Louisiana, this 6th day of August, 2018.
UNITED STATES DISTRICT JUDGE
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 Case 2:17-cv-06197-EEF-MBN Document 132 Filed 08/14/18 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE ET AL versus HARRY E. CANTRELL

*

CIVIL ACTION

*

*

No. 17-6197

*

*

SECTION “L” (5)

DECLARATORY JUDGMENT

Named Plaintiffs, on behalf of those similarly situated, filed this suit against Magistrate Judge Harry E. Cantrell, challenging the constitutionality of Judge Cantrell’s bail procedures in the Orleans Parish Criminal District Court (“OPCDC”). Evidence in the record demonstrates that Judge Cantrell’s procedure does not include an inquiry into ability to pay or consideration of alternative conditions of release prior to his setting bail. Furthermore, because of Judge Cantrell’s institutional conflict of interest, he fails to provide a neutral forum for determination of ability to pay or consideration of alternative conditions of release. The Fourteenth Amendment requires an inquiry into ability to pay, including notice of the importance of this inquiry; consideration of alternative conditions of release, including findings on the record applying the clear and convincing standard and explaining why an arrestee does not qualify for alternative conditions of release; and representative counsel at such hearings. Additionally, the Fourteenth Amendment requires a neutral forum for consideration of ability to pay and alternative conditions of release. Considering the Court’s Order & Reasons entered herein on August 6, 2018, accordingly:
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiffs, Adrian Caliste, Brian Gisclair, both individually and on behalf of all others similarly situated, and against defendant, Harry E. Cantrell, Magistrate Judge of Orleans Parish
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Criminal District Court. Plaintiffs are granted summary judgment on Count One and the following declaratory relief:
In the context of hearings to determine pretrial detention Due Process requires: 1) an inquiry into the arrestee’s ability to pay, including notice of the importance of this issue and the ability to be heard on this issue; 2) consideration of alternative conditions of release, including findings on the record applying the clear and convincing standard and explaining why an arrestee does not qualify for alternative conditions of release; and 3) representative counsel. Plaintiffs are also granted summary judgment on Count Two and a declaratory judgment that Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines their ability to pay bail and sets the amount of that bail. IT IS FURTHER ORDERED that this matter be Dismissed with prejudice, with each party to bear his or its own costs. New Orleans, Louisiana this 13th day of August, 2018.
________________________________ UNITED STATES DISTRICT JUDGE
2

 
 937 F.3d 525 United States Court of Appeals, Fifth Circuit.
Adrian CALISTE, individually and on behalf of all others similarly situated; Brian Gisclair,
individually and on behalf of all others similarly situated, Plaintiffs - Appellees v.
Harry E. CANTRELL, Magistrate Judge of Orleans Parish Criminal District Court, Defendant Appellant
No. 18-30954 |
FILED August 29, 2019
Synopsis Background: Arrestees filed class action under § 1983 against magistrate alleging that parish criminal court’s practice of using money generated from commercial surety bond fees to pay judicial expenses created conflict of interest that violated Due Process Clause. The United States District Court for the Eastern District of Louisiana, Eldon E. Fallon, J., 329 F.Supp.3d 296, entered summary judgment in arrestees’ favor, and magistrate appealed.

Cases that cite this headnote
[2] Constitutional Law Bail
Justices of the Peace Judicial acts
Parish criminal court’s practice of using money generated from commercial surety bond fees to pay judicial expenses created conflict of interest that violated Due Process Clause, where magistrate set amount of bond, state law mandated that portion of bond’s value be deposited in court’s judicial expense fund, 20–25% of fund came from bond fees, and fund was used to hire support staff to perform administrative tasks that magistrate would otherwise have to perform. U.S. Const. Amend. 14; La. Rev. Stat. Ann. § 22:822(A)(2), (B)(3).
1 Cases that cite this headnote

[Holding:] The Court of Appeals, Costa, Circuit Judge, held that practice created conflict of interest that violated Due Process Clause.
Affirmed.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.

West Headnotes (2)

[1]

Judges

Pecuniary Interest

“Average man as judge” standard, rather than “average judge” standard, applies in determining whether judge’s financial conflicts disqualifies judge from adjudicating matter.

.

Appeal from the United States District Court for the Eastern District of Louisiana, Eldon E. Fallon, U.S. District Judge
Attorneys and Law Firms
Eric Andrew Foley, James W. Craig, Katharine Murphy Schwartzmann, Esq., Roderick & Solange MacArthur Justice Center, New Orleans, LA, Alec George Karakatsanis, Esq., Civil Rights Corps, Washington, DC, for Plaintiffs - Appellees.
Dennis J. Phayer, Mindy Nunez Duffourc, Burglass & Tankersley, L.L.C., Metairie, LA, for Defendant Appellant.
Jeff Rowes, Staff Attorney, Institute for Justice, Austin, TX, for Amicus Curiae Institute for Justice.
Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
Opinion
1

GREGG COSTA, Circuit Judge:
“No man can be judge in his own case.” Edward Coke, INSTITUTES OF THE LAWS OF ENGLAND, § 212, 141 (1628). That centuries-old maxim comes from Lord Coke’s ruling that a judge could not be paid with the *526 fines he imposed. Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610). Almost a century ago, the Supreme Court recognized that principle as part of the due process requirement of an impartial tribunal. Tumey v. Ohio, 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927).
This case does not involve a judge who receives money based on the decisions he makes. But the magistrate in the Orleans Parish Criminal District Court receives something almost as important: funding for various judicial expenses, most notably money to help pay for court reporters, judicial secretaries, and law clerks. What does this court funding depend on? The bail decisions the magistrate makes that determine whether a defendant obtains pretrial release. When a defendant has to buy a commercial surety bond, a portion of the bond’s value goes to a fund for judges’ expenses. So the more often the magistrate requires a secured money bond as a condition of release, the more money the court has to cover expenses. And the magistrate is a member of the committee that allocates those funds.
Arrestees argue that the magistrate’s dual role—generator and administrator of court fees—creates a conflict of interest when the judge sets their bail. We decide whether this dual role violates due process.
I.
Judge Henry Cantrell is the magistrate for the Orleans Parish Criminal District Court. He presides over the initial appearances of all defendants in the parish, which encompasses New Orleans. At those hearings, there are typically 100–150 a week, Judge Cantrell appoints counsel for indigent defendants and sets conditions of pretrial release. One option for ensuring a defendant’s appearance is requiring a secured money bond. Just about every defendant who meets that financial condition does so by purchasing a bond from a commercial surety, as that requires paying only a fraction of the bond amount.
.

When a defendant buys a commercial bail bond, the Criminal District Court makes money. Under Louisiana law, 1.8% of a commercial surety bond’s value is deposited in the court’s Judicial Expense Fund.1 See
LA. R.S. §§ 22:822(A)(2), (B)(3), 13:1381.5(B)(2)(a). That fund does not pay judges’ salaries, but it pays salaries of staff, including secretaries, law clerks, and court reporters. It also pays for office supplies, travel, and other costs. The covered expenses are substantial, totaling more than a quarter million dollars per judge in recent years. The bond fees are a major funding source for the Judicial Expense Fund, contributing between 20–25% of the amount spent in recent years.2 All 13 judges of the district court, including Judge Cantrell, administer the fund.
Judge Cantrell requires a secured money bond for about half of the arrestees. So it was not unusual when he imposed that *527 condition for both Adrian Caliste and Brian Gisclair when they appeared before him on misdemeanor arrests. Nor was it uncommon when Judge Cantrell did not make findings about their ability to pay or determine if nonfinancial conditions could secure their appearance. It took over two weeks for Caliste to come up with the money to buy a bail bond, which cost about 12–13% of the $5,000 amount the court set (Caliste had two charges and bail was set at $2,500 per offense). Gisclair was never able to come up with the money and stayed in jail for over a month before being released.
While they were in custody, Caliste and Gisclair filed this federal civil rights lawsuit against Judge Cantrell. They sued on their own behalf and to represent a class of all arrestees “who are now before or who will come before” Judge Cantrell for pretrial release determinations and who cannot afford the financial conditions imposed.3 See
FED. R. CIV. P. 23(b)(2).
The lawsuit challenges two aspects of Judge Cantrell’s bail practices. First, the complaint alleges that he was violating the Due Process and Equal Protection Clauses by setting bond without inquiring into an arrestee’s ability to pay or considering the adequacy of nonfinancial conditions of release. This, Plaintiffs contend, results in keeping people in jail only because of their inability to make a payment. The second allegation relates to Cantrell’s “dual role as a judge determining conditions of pretrial release and as an executive in charge of managing the Court’s finances.” To plaintiffs, the financial incentive to require secured money bonds is a conflict of interest that deprives arrestees of their due process right to an impartial tribunal. For both claims, the plaintiffs sought only declaratory relief.
2

This appeal concerns only the conflict-of-interest claim. A year after the case was filed, Judge Cantrell told the district court that he had altered his bail practices to consider ability to pay and argued that this change mooted the first claim. The district court disagreed and granted a declaratory judgment on both claims. But Judge Cantrell appeals only the determination that his setting the bonds that help fund his court violates due process.
II.
Unlike some of its legal ancestors, English common law assumed that judges could maintain impartiality in the face of most connections to a case. See John P. Frank, Disqualification of Judges, 56 YALE L.J. 605, 609 (1947). It did not follow the path of Roman or Jewish law, both of which disqualified judges for a variety of reasons. See THE CODE OF JUSTINIAN 3.1.14 (S.P. Scott trans., 1932) (allowing litigants to “reject judges appointed to hear a case ... [e]ven when the judge was appointed by the Emperor, for the reason that We have set our hearts upon all suits being conducted without any suspicion of unfairness”); THE CODE OF MAIMONIDES, BOOK FOURTEEN: THE BOOK OF JUDGES, ch. 23, at 68–69 (Abraham M. Hershman, trans., Yale Univ. Press 1949) (requiring disqualification even when a party performed minor tasks for the judge such as removing a bird’s feather from the judge’s mantle or helping the judge get out of a boat when it reached shore). Though medieval England had those who suggested it should likewise recognize bias as a basis for recusal,4 by *528 Blackstone’s day the country had charted a different course:
[J]udges or justices cannot be challenged. For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.
3 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 361 (1768). Trust in the impartiality of judges was carried to extremes. Judges
.

could even hear cases involving close family members. See Brookes v. Earl of Rivers, Hardres 503, 145 Eng. Rep. 569 (Ex. 1668) (allowing a judge to hear a case involving his brother-in-law).
But the common law view that judges were incorruptible had a notable exception—when judges might benefit
financially. See Tumey v. Ohio, 273 U.S. 510, 525, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (“There was at the common law the greatest sensitiveness over the existence of any pecuniary interest however small or infinitesimal in the justice of the peace.”). Lord Coke’s famous line reflected that view, as did his ruling that a judge could not issue a judgment while also taking a portion of the fine to pay his salary. Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610). Similarly, a judge could not rule on an ejectment proceeding when he was the landlord. See, e.g., Anonymous, 1 Salkeld 396, 91 Eng. Rep. 343 (K.B. 1698); see also Earl of Derby’s Case, 12 Co. Rep. 114, 77 Eng. Rep. 1390 (K.B. 1614). There was even concern that a judge’s role as a citizen and a taxpayer in a town might be disqualifying, see Between the Parishes of Great Charte and Kennington, 2 Strange 1173, 93 Eng. Rep. 1107, 1107–08 (K.B. 1726) (quashing order of removal of pauper made by two justices of the peace because one “was an inhabitant of the parish from whence the pauper was removed”), until Parliament passed a law rejecting that notion in an early example of the “rule of necessity” that still applies to judicial recusal, see Frank, supra, at 610–11–. The common law thus distinguished between “bias,” which did not disqualify the judge, and “interest,” which did. Id. at 611–12.
After Independence, American law reflected the same concerns about a judge’s financial interest in a case. James Madison recited Lord Coke’s maxim in the Federalist Papers. THE FEDERALIST NO. 10, at 47 (James Madison) (Clinton Rossiter ed., 1961). Justices recused themselves from early Supreme Court cases when they had a financial interest in the result. Frank, supra, at 615 (citing Livingston v. Maryland Ins. Co., 7 Cranch (11 U.S.) 506, 3 L.Ed. 421 (1813); Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch (11 U.S.) 603, 3 L.Ed. 453
(1812); Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 4 L.Ed. 97 (1816)).5 But some nineteenth century state legislatures and courts tempered the common-law rule by not requiring recusal for an interest “so remote, trifling, and insignificant that it may fairly be supposed *529 to be incapable of affecting the judgment of or
influencing the conduct of an individual.” Tumey v. Ohio, 273 U.S. 510, 531, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (quoting T. Cooley, CONSTITUTIONAL LIMITATIONS 594 (7th ed. 1903)).
3

These principles, including the significance of the interest, inform the constitutional rules governing judge’s financial conflicts. As is true for other areas of criminal procedure,6 it was not until the increased law enforcement Prohibition brought that the Supreme Court addressed a due process challenge to a judge’s financial conflicts. The first case involved a mayor’s court used in Ohio villages to prosecute violations of the state Prohibition Act.
Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927). On this “liquor court,” the mayor was the judge and could convict without a jury. Id. at 516–17, 521, 47 S.Ct. 437. If the mayor found the defendant guilty, some of the fine the defendant paid would go towards the mayor’s “costs in each case, in addition to his regular salary.” Id. at 519, 47 S.Ct. 437 (quoting the local ordinance). Portions of the fines the village collected would also go to the prosecutor and officers who investigated the case. Id. at 518–19, 47 S.Ct. 437. If the mayor found the defendant not guilty, neither he nor anyone else working for the village would make money from the case. Id. at 523, 47 S.Ct. 437.
Relying on the legal tradition just outlined, the Court held that the liquor court judge’s interest in the outcome violated due process. Id. at 531–32, 47 S.Ct. 437. It did not require a showing that the mayor was favoring the prosecution; the financial incentive itself was enough:
Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused, denies the latter due process of law.
Id. at 532; see id. at 525–26, 47 S.Ct. 437 (chronicling the rule at common law that judges not have any pecuniary interest in their rulings).
[1]This “average man as judge” standard—focusing on the strength of the temptation rather than an actual showing of impartiality—has guided the due process inquiry ever since. Judge Cantrell tries to avoid it, arguing that Tumey’s “average man” standard is no longer good law. He contends later cases replaced it with an “average judge” standard that recognizes judges’ greater capacity for impartiality. The supposed change comes from
.

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), when the Court
quoted Tumey but referred to “the average ... judge,” leaving out the original “man acting as” language. This argument makes a mountain out of an ellipsis. The Supreme Court never explained that it was creating a more deferential standard in using the more concise language. Its most recent conflict-of-interest opinion uses both “average judge” and “average man” without
indicating a difference between the two. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 878, 881, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). Most fundamentally, Judge Cantrell’s argument that judges have a *530 knack for impartiality—and thus that the average judge is not as tempted as the average man—ignores that the law has long rejected that presumption for a judge’s financial conflicts. Frank, supra,
at 611–12–; compare Aetna, 475 U.S. at 820–21, 106 S.Ct. 1580 (bias against insurers did not disqualify judge),
with id. at 821–25, 106 S.Ct. 1580 (involvement in similar suits against insurers disqualified judge). We see no legal difference between the two formulations the Supreme Court has used. See Cain, 2019 WL 3982560, at *5–6 (rejecting the same argument Cantrell advances).
The cases applying the Tumey standard can be sorted into two groups. A few address one-off situations when the financial incentive is unique to the facts of the case. Examples are cases when the judge had a substantially
similar case pending against one of the parties, Aetna, 475 U.S. at 821–25, 106 S.Ct. 1580, or when a party had contributed more to the judge’s election campaign than all
other donors combined, Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881–87, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009). This case is not like those.
Instead, the challenge to Judge Cantrell’s dual role fits into the line of cases addressing incentives that a court’s
structure creates in every case. Tumey, 273 U.S. 510,
47 S.Ct. 437; Dugan v. Ohio, 277 U.S. 61, 48 S.Ct.
439, 72 L.Ed. 784 (1928); Ward v. Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). The incentives that most obviously violate the right to an
impartial magistrate are those that, like Tumey and its English predecessors, put money directly into a judge’s
pocket. See Tumey, 273 U.S. at 523, 47 S.Ct. 437 (holding that the judge receiving a portion of the fines “certainly” violated due process). It also violates due process when rulings indirectly funnel money into a
judge’s bank account. See Brown v. Vance, 637 F.2d 272, 284–86 (5th Cir. 1981). We thus held
4

unconstitutional the statutory fee system for compensating Mississippi justices of the peace because those judges’ compensation depended on the number of cases filed in their courts. As a result, they were incentivized to rule for plaintiffs in civil cases and the prosecution in criminal
ones to encourage more filings. Id. at 274. Again, it was the mere threat of impartiality that violated due process. As Judge Wisdom explained, it did not matter that “there must be many, many judges in Mississippi, as in any other state, pure in heart and resistant to the effect their actions may have on arresting officers and litigating creditors,” because “the temptation exists to take a biased view that will find favor in the minds of arresting officers and litigating creditors. This vice inheres in the fee system.
It is a fatal constitutional flaw.” Id. at 276.
Unlike the Tumey or Brown judges, Judge Cantrell does not receive a penny, either directly or indirectly, from his bail decisions. But requiring a secured money bond provides him with substantial nonmonetary benefits. Most significantly, money from commercial surety bond fees helps pay the judge’s staff. Without support staff, a judge must spend more time performing administrative tasks. Time is money. And some important tasks cannot be done without staff. Judge Cantrell cannot simultaneously preside as judge and court reporter (he employs two). Office supplies also promote efficiency. The fees the Orleans Parish Criminal District Court receives from commercial sureties thus help fund critical pieces of a well-functioning chambers. And if an elected judge is unable to perform the duties of the job, the job may be at risk. So we do not think it makes much difference that the benefits Judge Cantrell and his colleagues receive from bail bonds are not monetary.
*531 Having decided that the “average man as judge” standard applies and that significant nonmonetary benefits can create a conflict, we turn to the crux of the dispute: Does Judge Cantrell’s dual role violate due process? In
addition to Tumey, two other Supreme Court cases that again looked at Ohio mayors’ courts flesh out when the structural temptation of a dual role creates an unconstitutional conflict. The first, decided the term after
Tumey, considered another liquor court. See Dugan v. State, 277 U.S. 61, 48 S.Ct. 439, 72 L.Ed. 784 (1928). Dugan was the mayor of a small town, empowered to run a mayor’s court and convict those who possessed liquor.
Id. at 62, 48 S.Ct. 439. Unlike the Tumey mayor, he did not receive an additional fee for convictions; the fines went to the town’s general fund which paid his fixed
salary. Id. at 62–63, 48 S.Ct. 439. And despite the “mayor” title, Dugan was not the chief executive of the
city; a city manager was. Id at 63, 48 S.Ct. 439.
.

Dugan was, however, one of five members of the city commission, a legislative body with power to decide how city funds were spent, but he could not vote on his own
salary. Id. at 62–63, 48 S.Ct. 439. The Court held that although a judge might be tempted to rule in a way that would increase fines were he also a “chief executive ... responsible for the financial condition of the village,” that
was not Dugan’s situation. Id. at 65, 48 S.Ct. 439. His role as a nonexecutive, and as only one of five votes on financial policy, meant any benefit he received from the
fines he levied was “remote.” Id.
Forty-five years later, an Ohio mayor’s court returned to
the Supreme Court’s docket. See Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972). With Prohibition long ended, this mayor’s court
assessed traffic fines. Id. The traffic court provided
about 40% of the village’s revenue. Id. at 58, 93 S.Ct. 80. That created a constitutional problem because, unlike
the Dugan mayor, the Ward mayor was the city’s chief executive, tasked with “general overall supervision
of village affairs.” Id. The “temptation” resulting from this executive responsibility for village finances created an unconstitutional conflict when he presided over the
fine-generating traffic court. Id. at 60, 93 S.Ct. 80.
The parties focus on the differences between Judge
Cantrell’s roles and those of the mayors in Dugan and
Ward. Both sides can point to certain features that help
them. The Dugan mayor was one of five officials making spending decisions, while Judge Cantrell has an even less influential 1/13 vote on decisions about the
Judicial Expense Fund. But the Dugan mayor, despite his title, had no executive responsibilities. As a result, maintaining the financial health of the village provided
only a “remote” benefit to Dugan. Ward, 409 U.S. at
61, 93 S.Ct. 80. In contrast, because the Ward mayor ran the town, he had a direct and personal interest in the
finances of the civic institution. Id. at 60–61, 93 S.Ct. 80.
[2]We conclude that Judge Cantrell is more like the
Ward mayor than the Dugan mayor. Because he must manage his chambers to perform the judicial tasks the voters elected him to do, Judge Cantrell has a direct and personal interest in the fiscal health of the public institution that benefits from the fees his court generates and that he also helps allocate. And the bond fees impact the bottom line of the court to a similar degree that the
fines did in Ward, where they were 37–51% of the
5

town’s budget. Ward, 409 U.S. at 58, 93 S.Ct. 80. The 20–25% of the Expense Fund that comes from bond fees is a bit below that percentage but still sizeable enough that it makes a meaningful difference in the staffing and supplies judges receive. *532 The dual role thus may make the magistrate “partisan to maintain the high level of contribution” from the bond fees. Ward, 409 U.S. at 60, 93 S.Ct. 80.
Our holding that this uncommon arrangement violates due process does not imperil more typical court fee systems. Our reasoning depends on the dual role combined with the “direct, personal, [and] substantial” interest the magistrate has in generating bond fees. Tumey, 273 U.S. at 523, 47 S.Ct. 437. To take one example, none of these features are present for fines in federal criminal cases. Judges do not have a say in how those funds are spent. The amount of the fines—which is supposed to take into account the costs of incarceration and thus, if anything, fund the Bureau of Prisons rather than the judiciary, U.S.S.G. § 5E1.2(d)(7)—are not set aside for judicial operations even on a national level, let alone for the handful of federal judges who sit on a local district court. The benefits are so diffuse that a single judge sees no noticeable impact on her chambers from the fines she imposes and thus feels no temptation from them.
The temptation facing the Orleans Parish magistrate is far greater. His dual role—the sole source of essential court funds and an appropriator of them—creates a direct, personal, and substantial interest in the outcome of decisions that would make the average judge vulnerable to the “temptation ... not to hold the balance nice, clear, and true.” Tumey, 273 U.S. at 532, 47 S.Ct. 437. The current arrangement pushes beyond what due process allows. Cf. Cain, 2019 WL 3982560, at *6 (holding that Orleans Parish judges’ role in both imposing and administering court fees and fines violated due process).
III.
After recognizing this due process violation, the district court issued the following declaration: “Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines [the class’s] ability to pay bail and sets the amount of that
Footnotes
.

bail.”
That declaratory relief was all plaintiffs sought. They believed that section 1983 prevents them from seeking injunctive relief as an initial remedy in this action brought against a state court judge. See 42 U.S.C. § 1983 (“[I]n any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable ....”).7
That statutory requirement reflects that declaratory relief is “a less harsh and abrasive remedy than the injunction.”
Steffel v. Thompson, 415 U.S. 452, 463, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (quotation omitted); see also Robinson v. Hunt Cty., 921 F.3d 440, 450 (5th Cir. 2019); RESTATEMENT (SECOND) OF JUDGMENTS § 33 cmt. c (“A declaratory action is intended to provide a remedy that is simpler and less harsh than coercive relief ....”). Principal among its advantages is giving state and local officials, like Judge Cantrell, the first crack at reforming their practices to conform to the Constitution.
Steffel, 415 U.S. at 470, 94 S.Ct. 1209.
One response to the declaratory judgment would be eliminating Judge Cantrell’s dual role, a role that is not mandated by Louisiana law. In contrast, because Louisiana law does require that the bond fees be sent to the Judicial Expense Fund, *533 LA. R.S. 13:1381.5(B)(2)(a), the declaratory judgment cannot undo that mandate. Challengers did not seek to enjoin that statute, instead arguing only that the dual role violated due process. But given today’s ruling and last week’s in Cain, it may well turn out that the only way to eliminate the unconstitutional temptation is to sever the direct link between the money the criminal court generates and the Judicial Expense Fund that supports its operations.
* * *
The judgment of the district court is AFFIRMED.
All Citations
937 F.3d 525
6

1

Other government offices also benefit. The Sheriff’s Office, District Attorney’s Office, and Office of the Indigent

Defender each receive 0.4% of the bond. See LA. R.S. §§ 22:822(A)(2), (B)(3), 13:1381.5(B)(2)(b–d).

2

In another case, plaintiffs argued that a separate conflict of interest existed because of the court fees and fines that

also help fund the Judicial Expense Fund. That case was brought against all the judges of the Orleans Criminal District

Court, contending that their “administrative supervision over [the Fund], while simultaneously overseeing the collection

of fines and fees making up a substantial portion of [the Fund], crosses the constitutional line.” Cain v. White, 937 F.3d

446, 2019 WL 3982560 (Aug. 23., 2019). A different panel of this court recently held that this arrangement for fees and

fines violated due process. See id.

3

Although the named plaintiffs’ state criminal cases are over, class certification means the case is not moot. Cty. of

Riverside v. McLaughlin, 500 U.S. 44, 51, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991).

4

Thirteenth-century legal commentator Henry de Bracton argued that “[a] justiciary may be refused for good cause.” See

6 Henry de Bracton, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE 248–49 (Travers Twiss, trans., 1883).

5

Chief Justice Marshall owned much of the land at issue in the Hunter’s Lessee litigation. Joel Richard Paul,

WITHOUT PRECEDENT: CHIEF JUSTICE JOHN MARSHALL AND HIS TIMES 335 (2018). In contrast to his recusal

in those cases, he famously did not recuse in Marbury v. Madison even though his failure as Secretary of State to

deliver Marbury’s commission started that controversy. Id. at 243–44. Marshall’s recusal decisions illustrate the

common law’s almost exclusive concern with financial conflicts. See Frank, supra, at 243–44– (explaining that financial

interest was the only basis for disqualification in this period; “relationship” to the case did not require recusal).

6

See, e.g., Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933) (holding that search

warrant requires probable cause); Olmstead v. United States, 277 U.S. 438, 464–66, 48 S.Ct. 564, 72 L.Ed. 944

(1928) (addressing whether wiretapping is a search); United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 67 L.Ed. 314 (1922) (applying “dual sovereign” principle of double jeopardy law to allow both state and federal prosecution of same bootlegging activity).

7

This provision is implicated only if the conflict claim challenges actions undertaken in Judge Cantrell’s judicial capacity,

as opposed to his administrative capacity. Because the plaintiffs sought only declaratory relief, we need not reach this

question.

.

7

 
 Case 2:17-cv-06197-EEF-MBN Document 158 Filed 06/13/19 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ADRIAN CALISTE and BRIAN GISCLAIR, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
HARRY E. CANTRELL, Magistrate Judge of Orleans Parish Criminal District Court,
Defendant.

Case No. 2:17-CV-06197-EEF-MBN
Judge Eldon E. Fallon Magistrate Judge Michael B. North
(Class Action)

ORDER
Considering the Parties’ Joint Motion for Entry of Consent Judgment filed in the above-
captioned matter;
It is hereby ORDERED that, by agreement of the Parties, Magistrate Harry E. Cantrell
will use the following protocol when determining the conditions of pretrial release for arrestees
appearing before him and that use of the following protocol complies with this Court’s August
14, 2018 Declaratory Judgment:
During preliminary instructions to all arrestees the judicial officer shall: Notify arrestees of their constitutional right to pretrial liberty. State that if a secured money bail is considered as a condition of release, then judicial officer will ask questions about their finances. If the Court intends to collect this information via sworn declaration (see step #4), then introduce the form and notify arrestees that defense counsel will assist them in completing the form or if the form has already been completed by the defendant in a meeting with pretrial services, inform the arrestees that they will have an opportunity to review the completed form with defense counsel.
Representation by Counsel: All arrestees have a right to be represented by counsel when a judicial officer determines conditions of release. If an arrestee has not been brought to Court for a First Appearance hearing due to an apparent mental or physical

Case 2:17-cv-06197-EEF-MBN Document 158 Filed 06/13/19 Page 2 of 4
incapacity—e.g., detoxification or placement on suicide watch—the judicial officer will appoint counsel if the arrestee has not already retained counsel to appear on their behalf. The judicial officer may order release of the person and set conditions of release in the person’s absence. If setting a secured bail in an arrestee’s absence, the judicial officer will ensure that the arrestee’s name is placed on the docket for the next day’s First Appearance Hearing, not to exceed 24 hours from the missed appearance. If the arrestee remains in custody at the time of the next day’s First Appearance Hearing, the person will be brought before the judicial officer at that time, unless the mental or physical incapacity persists and prevents the arrestee’s appearance in court. In such instance, the arrestee’s name will again be placed on the docket for the nextin-time First Appearance Hearing, until he has regained capacity or has consented to a waiver of his appearance. If the next day’s first appearance hearing for an initially absent arrestee will be held before a different section of Magistrate Court, e.g., a commissioner’s hearing on a Saturday, Sunday, or court Holiday then the arrestee shall also be placed on Magistrate Cantrell’s next available docket for consideration of the conditions of release imposed in the event the arrestee continues in custody.
The judicial officer will then proceed with the following steps to determine conditions of release.
1. Judicial officer hears argument and evidence from the government and defense counsel concerning the charged offense(s) and the need for conditions of pretrial release or pretrial detention, including the arrestee’s potential danger to the community or risk of flight, and any conditions of release that could mitigate any risk posed. The arrestee or their counsel shall have the opportunity to confront the government’s evidence and to present their own.
2. For those arrestees who are present, first determine whether the person should be released from custody with only the standard conditions in La. Code Crim. Proc. art. 320(B) (2019). • If Yes—End inquiry and order release • If No—Continue
3. Determine whether a nonfinancial condition of release, or combination of nonfinancial conditions, would satisfy the judicial officer’s concerns for public safety and/or future appearance at court. • If nonfinancial condition(s) are sufficient to satisfy judicial officer’s concerns, order arrestee’s release on such conditions. • If judicial officer is considering a financial condition to satisfy judicial officer’s concerns, continue.
2

Case 2:17-cv-06197-EEF-MBN Document 158 Filed 06/13/19 Page 3 of 4
4. Remind arrestee that accurate answers to the Court’s questions are important to the Court deciding whether to require secured bail and, if so, the amount of bail. Then inquire into: • Income • Assets • Expenses i. Rent or mortgage ii. Utilities iii. Dependents iv. Medical expenses v. Transportation costs vi. Payments on loans, credit cards, or other debts vii. Other expenses • Amount of bail defendant states he can afford
In place of an oral inquiry, the arrestee’s counsel may also proffer or the court may choose to obtain this financial information through a written form sworn by the arrestee and entered into the record.
5. Considering the financial information obtained in the preceding step, determine whether a financial condition of release is a necessary component of the individual’s conditions of release, and if so, set a financial condition. If the person cannot pay the financial condition that the court determines necessary, then the court must explain by clear and convincing evidence on the record why the government has demonstrated that no other alternative conditions of release are sufficient to reasonably guard against the person’s flight from prosecution or to reasonably ensure the safety of the community during the pretrial period.2
6. If the defendant objects to the bail set, ask counsel for arrestee whether the arrestee may have additional evidence relevant to dangerousness, flight risk or alternative conditions of release that is currently unavailable to them. • If yes, offer arrestee more time to present his evidence by holding the hearing open until their attorney notifies the Court that they are able to present such evidence after the current hearing. Defense counsel shall have 72 hours within which to so notify the Court; on a showing of good cause, the Court may allow an additional 48 hours to collect such evidence. The arrestee’s case shall be reset for hearing no later than 48 hours after notice is received from counsel.
2 The “clear and convincing” evidence must be individualized. The following factors, standing alone, cannot comprise clear and convincing evidence of dangerousness or flight risk: (a) the statute for which the arrestee’s alleged violation resulted in their arrest, (b) the location of the arrestee’s primary residence, or (c) the arrestee’s homelessness or lack of a permanent physical address.
3

Case 2:17-cv-06197-EEF-MBN Document 158 Filed 06/13/19 Page 4 of 4 • If no, conclude the hearing.
It is ORDERED that Plaintiffs’ previously filed motion for injunctive relief, R. Doc. 138, be DISMISSED WITHOUT PREJUDICE AS MOOT.
It is further ORDERED that this case shall be administratively closed subject to the continuing jurisdiction of this Court to enforce compliance with the terms of this Order.
New Orleans, Louisiana this 13th day of June, 2019 __________________________________ The Honorable Eldon E. Fallon United States District Court Judge
4