     Case: 18-30955   Document: 00515090064     Page: 1   Date Filed: 08/23/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                August 23, 2019
                                 No. 18-30955
                                                                 Lyle W. Cayce
                                                                      Clerk


ALANA CAIN; ASHTON BROWN; REYNAUD VARISTE; REYNAJIA
VARISTE; THADDEUS LONG; VANESSA MAXWELL,

             Plaintiffs - Appellees

v.

LAURIE A. WHITE, Judge Section A of the Orleans Parish Criminal District
Court; TRACEY FLEMINGS-DAVILLIER, Judge Section B of the Orleans
Parish Criminal District Court; BENEDICT WILLARD, Judge Section C of
the Orleans Parish Criminal District Court; KEVA LANDRUM-JOHNSON,
Judge Section E of the Orleans Parish Criminal District Court; ROBIN
PITTMAN, Judge Section F of the Orleans Parish Criminal District Court;
BYRON C. WILLIAMS, Judge Section G of the Orleans Parish Criminal
District Court; CAMILLE BURAS, Judge Section H of the Orleans Parish
Criminal District Court; KAREN K. HERMAN, Judge Section I of the
Orleans Parish Criminal District Court; DARRYL DERBIGNY, Judge
Section J of the Orleans Parish Criminal District Court; ARTHUR HUNTER,
Judge Section K of the Orleans Parish Criminal District Court; FRANZ
ZIBILICH, Judge Section L of the Orleans Parish Criminal District Court;
HARRY E. CANTRELL, Magistrate Judge of the Orleans Parish Criminal
District Court,

             Defendants - Appellants




                Appeal from the United States District Court
                   for the Eastern District of Louisiana
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                                     No. 18-30955
Before HAYNES, GRAVES, and HO, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
       Plaintiff-Appellees are former criminal defendants in Orleans Parish,
Louisiana who sued Defendant-Appellants, Judges of the Orleans Parish
Criminal District Court (“OPCDC”), under 42 U.S.C. § 1983. Plaintiffs alleged
the Judges’ practices in collecting criminal fines and fees violated the Due
Process Clause of the Fourteenth Amendment. The district court granted
summary judgment in Plaintiffs’ favor. We affirm, although we emphasize at
the outset that the resolution of this case is dictated by the particular facts
before us.
                                 I. BACKGROUND
       A. The Parties
       Plaintiff-Appellees are Alana Cain, Ashton Brown, Reynaud Variste,
Reynajia Variste, Thaddeus Long, and Vanessa Maxwell, former criminal
defendants in OPCDC who pleaded guilty to various criminal offenses between
2011 and 2014. All but Reynaud Variste qualified for and were appointed
public defenders. At sentencing, Plaintiffs were assessed fines and fees ranging
from $148 to $901.50. All were arrested for failure to pay their assessed fines
and fees, given a $20,000 bond, and spent anywhere from six days to two weeks
in jail.
       Defendant-Appellants are twelve OPCDC judges, Judges Laurie A.
White, Tracey Flemings-Davilier, Benedict Willard, Keva Landrum-Johnson,
Robin Pittman, Byron C. Williams, Camille Buras, Karen K. Herman, Darryl
Derbigny, Arthur Hunter, Franz Zibilich, and Magistrate Judge Harry
Cantrell (the “Judges”). 1


       1 All claims against the OPCDC and the City of New Orleans were dismissed prior to
the district court’s order granting summary judgment at issue here. Judicial Administrator
Robert Kazik and Orleans Parish Sheriff Marlin Gusman are not parties to this appeal.
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      B. The Judicial Expense Fund (“JEF”)
      The JEF is established pursuant to La. Rev. Stat. § 13:1381.4 and
consists of OPCDC revenue that is not designated or restricted for a specific
purpose. Accordingly, it is also known as the General Fund. The JEF receives
funding from a variety of sources, including the City of New Orleans and bail
bond fees, but approximately one quarter of the monies it receives comes from
the court’s collection of fines and fees.
      The Judges have exclusive control over how the JEF is spent, and
generally use it for the following:
      salaries and related-employment benefits (excluding the judges),
      CLE travel, legislative expenses, conferences and legal education,
      ceremonies, office supplies, cleaning supplies, law books, bottled
      water, jury expenses, telephone, postage, pest control, dues and
      subscriptions, paper supplies, advertising, building maintenance
      and repairs, cleaning services, capital outlay, equipment
      maintenance and repairs, lease payments, equipment rentals,
      professional and contractual expenses, the drug testing supplies,
      coffee, transcripts, insurance, and miscellaneous.

Money from the fund may not be used to supplement the Judges’ own salaries,
although, as noted above, it can be used to pay the salaries of court personnel.
La. Rev. Stat. § 13:1381.4(D). Each judge is allocated $250,000 per annum for
personnel salaries and $1,000 for court costs from the JEF. The fund also
covers the cost of professional liability insurance coverage as authorized by the
Louisiana Supreme Court. “For some time prior to 2011, some judges received
supplemental benefits” from the JEF in the form of supplemental health
insurance policies and reimbursement for out-of-pocket medical expenses;
however, this practice fully ended by 2012 following an investigation by the
Louisiana Legislative Auditor.




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       When collection of the fines and fees is reduced, the OPCDC can have a
difficult time meeting its operational needs, leading to cuts in services,
reduction of staff salaries, and leaving some positions unfilled. During these
times, the Judges have attempted to increase their collection efforts and have
also requested assistance from other sources of funding, including the City of
New Orleans.
       C. The Fines and Fees
       Several Louisiana statutes and codes permit the Judges to assess fines
and fees to criminal defendants at sentencing. Some fines and fees have specific
purposes and are collected to be distributed for specific statutory purposes, 2
while others are collected and then split between the court and other agencies. 3
However, some fines and fees go directly into the JEF. 4 The statutory
requirements of yet other fines and fees is ambiguous. 5




       2  Restitution is collected to benefit the victims of crime, see La. Code Crim. Proc. Art.
883.2, and a $14 fee is collected to be deposited into the indigent transcript fund to
compensate court reporters. La. Rev. Stat. § 13:1381.1. Additionally, Louisiana statute allows
the assessment of the costs of drug treatment or drug testing if the defendant is found not to
be indigent. § 13:5304(B)(3)(e), (C)(3)–(4). After 2012, it appears that these the indigent
transcript fund fee and drug testing costs were deposited into the JEF.
        3 For example, fines pursuant to La. Rev. Stat. § 15:571.11 are split between the

OPCDC and the District Attorney, and “court costs” assessed by the Judges can include fees
that go to other agencies, including the Orleans Public Defender, the District Attorney, the
Criminal Sheriff, etc. The Sheriff also collects a 3% fee on bail bonds, two thirds of which goes
to an “administration of criminal justice fund” overseen by the chief judge of the OPCDC, the
Orleans Parish sheriff, the district attorney, and the director of the Orleans Parish indigent
defender’s program, or their designees. § 22:822(A)(2), (B)(3); § 13.1381.5. The remaining
third goes to the OPCDC. § 22.822(3).
        4 These include a mandatory $5 fee, La. Rev. Stat. § 13:1381.4, an “additional cost” of

up to $500 for a defendant convicted of a misdemeanor and $2,000 for a defendant convicted
of a felony. § 13:1381.4(A)(2), (B).
        5 For instance, three Plaintiffs were charged a $100 or $200 fee to go into the indigent

transcript fund as a “condition of probation,” which went into the JEF. Louisiana Code of
Criminal Procedure Article 887(A) also allows for the collection of “all costs of the prosecution
or proceeding, . . . recoverable by the party or parties who incurred the expense.” The Judges
assessed these costs, but it is not clear where these costs went once collected.
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      D. OPCDC’s Debt Collection Practices
      Prior to this lawsuit, the Judges delegated collection authority to the
Collections Department, established by the OPCDC judges 6 in the late 1980s
“to (1) facilitate the collection of costs and fines [and] (2) to minimize the
administrative and logistical burden on” the OPCDC’s dockets. The Collections
Department, supervised by both Mr. Kazik and the Judges, worked with
criminal defendants in creating payment plans, accepting payments, and
granting extensions. The Collections Department had “no standard list of
factors or questions . . . to ask a criminal defendant except those at intake when
collections obtained address, telephone and employment information and used
it for purposes of contacting the criminal defendant when they did not pay.”
      Before issuing a warrant for a defendant’s arrest for failure to pay a court
debt, the Collections Department would send two form letters to the defendant
warning them of their overdue fines and fees and the possibility of arrest for
failure to pay. If checking the court dockets or probation and jail records did
not reveal a reason for nonpayment, the Collections Department issued an
alias capias warrant for contempt of court and generally set surety bail at
$20,000. A person imprisoned on one of these warrants would usually remain
“in jail until their family or friends could make a payment on their court debt,
or until a judge released them.”
      After Plaintiffs filed the instant suit, the Judges withdrew the
Collections Department’s authority to issue warrants, recalled all active fines
and fees warrants issued prior to September 18, 2015 (except those where
restitution remained unpaid or the individual had not appeared in court), and
wrote off approximately $1,000,000 in court debts. The Judges now handle



      6 None of the Judges who are defendants in this lawsuit were on the bench or
otherwise employed at the court when Collections was created.
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                                  No. 18-30955
collection issues on their own dockets, although they still issue alias capias
warrants for failure to pay fines and fees. At the time of the district court’s
summary judgment ruling, there was no evidence that the Judges had ever
instituted a practice of considering a defendant’s ability to pay before jailing
them for failure to pay their court debts.
      E. Procedural Background
      Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that the
Judges’ collection practices violated their Fourth and Fourteenth Amendment
rights, as well as Louisiana tort law. The only one of their seven claims at issue
on appeal is Count Five, summarized by the district court as follows:
      Defendants’ policy of jailing indigent debtors for nonpayment of
      court debts without any inquiry into their ability to pay is
      unconstitutional under the Due Process clause and the Equal
      Protection Clause of the Fourteenth Amendment, and the Judge’s
      authority over both fines and fees revenue and ability-to-pay
      determinations violates the Due Process Clause.

Cain v. City of New Orleans, 281 F. Supp. 3d. 624, 633 (E.D. La. 2017)
(emphasis added). The district court ordered the parties to submit cross-
motions for summary judgment on Count Five (and several other counts) and
granted summary judgment to Plaintiffs on both portions of Count Five. The
district court then certified a class and issued a declaratory judgment.
      The Judges only challenge the portion of the district court’s declaratory
judgment which declared that “with respect to all persons who owe or will incur
court debts arising from cases adjudicated in OPCDC, and whose debts are at
least partly owed to the OPCDC Judicial Expense Fund, the Judges’ failure to
provide a neutral forum for determination of such persons’ ability to pay is
unconstitutional.” They do not challenge the district court’s judgment stating
that “the Judges’ policy or practice of not inquiring into the ability to pay of



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                                  No. 18-30955
such persons before they are imprisoned for nonpayment of court debts is
unconstitutional.”
                         II. STANDARD OF REVIEW
      “This court reviews a district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.” Tradewinds
Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir.
2009) (quoting Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir.
2005)). “Summary judgment is appropriate when ‘the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’” United States v. Nature’s Way Marine, L.L.C.,
904 F.3d 416, 419 (5th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)).
                               III. DISCUSSION
      “It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement
of due process.’” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009)
(quoting In re Murchison, 349 U.S. 133, 136 (1955)). “That officers acting in a
judicial or quasi judicial capacity are disqualified by their interest in the
controversy to be decided is of course the general rule.” Tumey v. State of Ohio,
273 U.S. 510, 522 (1927). However, “[a]ll questions of judicial qualification may
not involve constitutional validity.” Id. at 523. The issue here is whether the
Judges’ administrative supervision over the JEF, while simultaneously
overseeing the collection of fines and fees making up a substantial portion of
the JEF, crosses the constitutional line.
      A. “Average Man as Judge” versus “Average . . . Judge”
      The Judges primary argument is that the district court improperly
applied the “average man as judge” standard rather than the “average judge”
standard when determining whether the Judges’ interest in the JEF violated
due process. According to the Judges, the “average man as judge” standard is
applied in situations where “the impartiality of non-judges acting as judges” is
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called into question, not cases where the “average judge’s” impartiality is under
debate. Essentially, the Judges argue that an average man might be swayed
by the institutional interest at play here, but not an average judge. The caselaw
simply does not support such a distinction.
              1. Legal Background
      In Tumey, the mayor of an Ohio village presided over a “liquor court,”
which allowed him to try and convict individuals alleged to unlawfully possess
intoxicating liquor within the county. Tumey, 273 U.S. at 515. The Ohio
statutes which established the liquor courts allowed the mayor to impose a fine
on those convicted and to order the person sentenced to remain in prison until
the fine was paid. Id. at 516. As remuneration for his troubles, the mayor could
retain the amount of his costs in each case from the convicted defendant over
and above his regular salary. Id. at 519–20. In addition, the village over which
the mayor presided received half the funds from the imposed fines (the other
half went to the state). Id. at 534–35.
      Eventually, a defendant challenged the mayor’s qualifications to hear his
case and the Court found the defendant “was entitled to halt the trial because
of the disqualification of the judge, which existed 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.” Id. at 535.
The Court observed,
      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.
      While Tumey was generally thought to focus on a judge’s financial
interest, both personal and institutional, In re Murchison, 349 U.S. 133 (1955)
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established a separate line of Supreme Court cases focusing on a judge’s
possible “conflict arising from his participation in an earlier proceeding.”
Caperton, 556 U.S. at 880. In Murchison, the unconstitutional conflict came
from a judge who, as allowed by statute, had been examining witnesses as a
“one-man judge-grand jury” in deciding whether criminal charges should be
brought. Murchison, 349 U.S. at 133–34. The judge, unhappy with the
responses of two witnesses, subsequently charged, tried, and convicted each
one of contempt based on his belief that one witness lied and the other refused
to answer questions before him as “judge-grand-jury.” Id. at 134–35. The Court
concluded this dual-role violated due process, and quoted Tumey in saying that
“[e]very procedure which would offer a possible temptation to the average man
as a judge * * * not to hold the balance nice, clear, and true between the State
and the accused denies the latter due process of law.” Murchison, 349 U.S. at
136 (quoting Tumey, 273 U.S. at 532).
      In a case fairly similar to Tumey, the Supreme Court again addressed
the possible institutional biases inherent in another mayor’s court. Ward v.
Vill. of Monroeville, Ohio, 409 U.S. 57 (1972). In Ward, an Ohio statute allowed
“mayors to sit as judges in cases of ordinance violations and certain traffic
offenses” and the “fines, forfeitures, costs, and fees imposed by” the mayor in
these courts formed a major part of the village’s funding. Ward, 409 U.S. at
57–58. In addition, the mayor was the “president of the village council,
preside[d] at all meetings, vote[d] in case of a tie, account[ed] annually to the
council respecting village finances, fill[ed] vacancies in village offices and ha[d]
general overall supervision of village affairs.” Id. at 58.
      The Court applied the same test espoused in Tumey:
      Although ‘the mere union of the executive power and the judicial
      power in him cannot be said to violate due process of law,’ the test
      is whether the mayor’s situation is one ‘which would offer a
      possible temptation to the average man as a judge to forget the
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                                  No. 18-30955
      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 . . . .’

Ward, 409 U.S. at 60 (quoting Tumey, at 532, 534) (internal citations
removed)). Because “that ‘possible temptation’ may also exist when the mayor’s
executive responsibilities for village finances may make him partisan to
maintain the high level of contribution from the mayor’s court,” the Court
found the mayor’s court in Ward presented “a ‘situation in which an official
perforce occupies two practically and seriously inconsistent positions, one
partisan and the other judicial, (and) necessarily involves a lack of due process
of law in the trial of defendants charged with crimes before him.’” Id. at 60.
      Over a decade later, the Supreme Court again had occasion to discuss
what level of financial interest might render “the average . . . judge” unable “to
hold the balance nice, clear and true.” Aetna Life Ins. Co. v. Lavoie, 475 U.S.
813, 821 (1986). In Aetna, a justice on the Alabama Supreme Court
participated in a decision regarding punitive damages in bad faith insurance
claims while he was simultaneously a lead plaintiff in a class action suit
seeking punitive damages on a bad faith claim. Id. at 817. While the Court
discussed many factors that might bear on the necessity for recusal, the Court
held “simply that when Justice Embry made that judgment, he acted as ‘a
judge in his own case.’” Id. at 824 (quoting Murchison, 349 U.S. at 136).
      While it was possible that the justice was not influenced by his
participation in the state court case, under the principles laid out in Tumey,
Murchison, and Ward, actual influence was not necessary—it only mattered
whether the situation “would offer a possible temptation to the average . . .
judge to . . . lead him to not to hold the balance nice, clear and true.” Aetna,
475 U.S. at 825 (quoting Ward, 409 U.S. at 60). Because of Justice Embry’s
participation in the case, the Court found the “appearance of justice” best

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“served by vacating the decision and remanding for further proceedings.” Id.
at 828.
            2. Judges’ Argument
      Disregarding the principles undergirding Aetna, the Judges argue that
Aetna essentially came along and established a new standard by shortening
Tumey and Ward’s “average man as judge” to “average . . . judge.” Aetna, 475
U.S. at 822, 825. While the Court did alter “average man as judge,” the Court
applied the exact same principles discussed in Ward, Murchison, and Tumey
to the Alabama Supreme Court justice. There was no articulation of a higher
standard for judges, much less an explanation as to how such a standard might
differ from that applied to mayors acting as judges. Aetna, 475 U.S. at 825.
Furthermore, reading Aetna as the Judges suggest would mean reading Aetna
to overrule Murchison, which applied the “average man as judge” standard to
a sitting judge. Murchison, 349 U.S. at 136. We find it hard to believe that the
Court overruled one of its cases with an ellipsis. Finally, the recent Supreme
Court case of Caperton reinforces the idea that the standards announced, and
the situations presented, in Tumey and Ward apply equally to judges and non-
judges acting as judges. Caperton, 556 U.S. at 877–82 (discussing the various
principles from Tumey, Ward, Murchison and Aetna as applying to “judges”).
      The district court did not err in applying the principles from Tumey and
Ward to the facts of this case.
      B. The Judges’ Institutional Interest in the JEF
            1. The District Court’s Reliance on Ward
      The Judges next contest the district court’s reliance on Ward to find that
the Judges’ pecuniary interest in the JEF “crosses the constitutional line.”
They allege “[t]he district court erred in its blanket comparison of the Judges’
institutional interest here to the mayor’s institutional interest in Ward.” The
Judges distinguish Ward by noting the mayor there had broad executive power
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over all the village finances and he was politically responsible for the town’s
funds, whereas here the Judges only directly manage a portion of the revenue
from the fines and fees. Plaintiffs argue that the Judges’ interest here is almost
exactly like that in Ward because the Judges impose the fines and fees and
exercise complete control over how the revenue generated from the fines and
fees is spent.
      The district court very thoroughly examined the ways in which the
Judges have an institutional interest in the JEF. It observed that the “[f]ines
and fees revenue goes into the Judicial Expense Fund,” over which “the Judges
exercise total control.” Cain, 281 F. Supp. 3d at 654. It noted that while the
money does not support the Judges’ personal salaries, it largely goes to support
the salaries of each Judges’ staff. In addition, the district court noted that while
some of the money collected from fees is earmarked for specific purposes, the
revenue all goes to the JEF and makes up approximately one-fourth of the
OPCDC’s budget.
      In Ward, “[a] major part of village income [was] derived from the fines,
forfeitures, costs, and fees imposed” by the mayor in his court, and the mayor
had “wide executive powers” that included accounting to the village council
regarding village finances, filling vacancies in village offices, and “general
overall supervision of village affairs.” Ward, 409 U.S. at 58. Here, the Judges
have exclusive authority over how the JEF is spent, they must account for the
OPCDC budget to the New Orleans City Council and New Orleans Mayor, and
the fines and fees make up a significant portion of their annual budget. We
agree with the district court that the situation here falls within the ambit of
Ward. In doing so, we emphasize it is the totality of this situation, not any




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individual piece, that leads us to this conclusion. In sum, when everything
involved in this case is put together, the “temptation” 7 is too great.
      Given this constitutional infirmity, we find the Judges’ remaining
arguments unavailing.


                                 IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.
The Judges’ motion to supplement the record is DENIED.




      7   In so concluding, we do not in any way suggest that the Judges actually succumbed
to that “temptation.”
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