     Case: 17-30779   Document: 00514669544    Page: 1   Date Filed: 10/04/2018




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

                                                                 FILED
                                                             October 4, 2018
                                No. 17-30779
                                                              Lyle W. Cayce
                                                                   Clerk
DARWIN YARLS, JR., LEROY SHAW, JR., and DOUGLAS BROWN, on
Behalf of Themselves and All Others Similarly Situated,

             Plaintiffs–Appellants,

v.

DERWYN BUNTON, in his official capacity as Chief District Defender for
Orleans Parish, Louisiana; JAMES T. DIXON, JR., in his official capacity as
Louisiana State Public Defender,

             Defendants–Appellees.


                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before JOLLY, ELROD, and WILLETT, Circuit Judges.
DON R. WILLETT, Circuit Judge
      This is a constitutional challenge to Louisiana public defenders’
practice—now discontinued—of placing indigent, non-capital defendants on
waitlists for appointed counsel. Appellants allege this practice, the result of
chronic budgetary shortfalls, violates poor defendants’ Sixth and Fourteenth
Amendments rights to a speedy trial and to assistance of counsel. They seek a
declaratory judgment that such waitlists are unconstitutional and injunctive
relief requiring Appellees—the Louisiana State Public Defender and the Chief
District Defender for Orleans Parish—"to provide competent counsel to
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individuals on waiting lists.” (Interestingly, Appellees neither resist federal
jurisdiction nor oppose Appellants’ requested relief.)
       Appellants dub this “a constitutional crisis of unprecedented dimension.”
Certainly, the constitutional safeguards due indigent arrestees awaiting
representation is a weighty matter. So too is another constitutional safeguard:
the mootness doctrine derived from Article III’s “case or controversy”
requirement. And on mootness, all parties concede a fundamental point: The
Louisiana Legislature’s recent $5 million reallocation of indigent-defense
funding has eliminated all waitlists for non-capital defendants. As the State
Public Defender plainly puts it, “Current waitlists in the districts for non-
capital defendants are non-existent.” 1 Appellants discount the revenue boost
as an insufficient stopgap given public defenders’ caseloads. The legal upshot,
though, is unmistakable: The controversial waitlists are no longer in
controversy. And no waitlists = no live case or controversy = no jurisdiction.
       We thus DISMISS this appeal as moot.
                                               I
       Louisiana funds representation for non-capital defendants through
legislative appropriations at the state level, supplemented by traffic tickets
and other local fines assessed by each defender district. During a 2015 funding
shortage, the Orleans Public Defender (OPD) and about 30 other districts
implemented Restriction of Services (ROS) protocols as a triage measure. The
protocols resulted from a statewide audit that determined, “in light of current
caseloads,” OPD was unable to “provide constitutional, ethical representation
to its clients” as required by the Rules of Professional Conduct. Because the




       1 The State Public Defender’s brief adds, “None of the districts currently in restriction
of services report a waitlist for appointment of counsel for non-capital defendants.”
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                                      No. 17-30779
Rules are black letter law in Louisiana, 2 ROS protocols prescribed waitlists for
non-capital defendants to keep attorney caseloads within reasonable limits.
       This suit originated when Appellants—Darwin Yarls, Jr., Leroy Shaw,
and Douglas Brown—requested appointed counsel after being arrested on non-
capital felony charges in Orleans Parish. The state court appointed OPD to
represent them. But OPD responded that, due to excessive caseloads and staff
shortages, it could not accept Appellants as clients and instead placed them on
a waitlist for appointed counsel. Appellants thus lacked representation for
preliminary hearings to scrutinize the allegations against them, challenge
probable cause determinations, or request lower bail. Appellants were
ultimately detained without counsel for several months. Each has since been
released.
       Appellants filed a proposed class action under 42 U.S.C. § 1983, seeking
to represent a class of Orleans Parish arrestees who had been waitlisted.
Appellants first requested a declaratory judgment that the waitlists violated
their Sixth Amendment right to counsel and their Fourteenth Amendment
rights to equal protection and due process. They asserted that due to Chief
District Defender Derwyn Bunton’s and OPD’s refusal to represent them, they
faced “an unduly heightened risk of prolonged and unnecessary pretrial
detention.” Appellants later amended their complaint to seek injunctive relief
too, specifically requesting that Appellees be ordered to develop a plan to
provide appointed counsel for each waitlisted defendant and to submit various
reports.
       After several months of negotiation, the parties submitted a Joint Motion
for Final Declaratory and Partial Injunctive Relief. The accompanying


       2 See Walker v. DOT, 817 So. 2d 57, 60 (La. 2002) (“[T]his court has determined that
the ethical rules which regulate attorneys’ law practices have been recognized as having the
force and effect of substantive law.”).
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Proposed Order declared that OPD waitlists violated proposed class members’
constitutional rights. The district court went another route. It dismissed the
case, citing Younger abstention, justiciability, and federalism concerns. 3
Appellants then filed an unopposed Motion for Relief from Judgment. The
district court denied the motion, and Appellants appealed.
       Then in 2017, after this appeal was filed, the Louisiana Legislature
amended the Public Defender Act to steer $5 million more to district defenders
for non-capital indigent defense. Nobody disputes that this added revenue
eliminated non-capital waitlists. Appellants remained unmoved, however,
branding Louisiana’s funding for indigent defense “inherently inadequate and
unreliable,” adding, “conditions in Orleans may soon deteriorate once again,”
necessitating future waitlists.
                                             II
       We review a district court’s Rule 12(b)(6) dismissal de novo and may
affirm “on any grounds supported by the record, including a party’s lack of
standing.” 4 Lack of standing means lack of jurisdiction. And lack of jurisdiction
means lack of judicial power. The nub of today’s “dispute” is undisputed:
Louisiana no longer maintains waitlists for non-capital defendants. The case,
thus moot, must be dismissed.
                                             A
       Article III’s case-or-controversy requirement imposes an “irreducible
constitutional minimum of standing,” 5 which consists of three elements: (1) a
plaintiff must have suffered an “injury in fact—an invasion of a legally
protected interest which is . . . concrete and particularized, and . . . actual or



       3  See Younger v. Harris, 401 U.S. 37 (1971) (generally barring federal courts, except
in certain circumstances, from interfering with ongoing state criminal proceedings).
        4 Hosein v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006).
        5 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

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                                        No. 17-30779
imminent”; (2) there must be “a causal connection between the injury and the
conduct complained of”; and (3) the injury must be likely to be redressed by a
favorable decision. 6
       Importantly, having Article III standing at the outset of litigation is not
enough. “There must be a case or controversy through all stages of a case”—
not just when a suit comes into existence but throughout its existence. 7 “A case
becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes
of Article III—‘when the issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.’” 8 “No matter how vehemently the
parties continue to dispute the lawfulness of the conduct that precipitated the
lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual
controversy about the plaintiffs’ particular legal rights.’” 9
       Here, both sides acknowledge that the Louisiana Legislature’s recent
reallocation of indigent-defense funding has eliminated the practice of putting
non-capital defendants on waitlists. The State Public Defender describes the
current situation this way: “None of the districts currently in restriction of
services report a waitlist for the appointment of counsel for non-capital
defendants.” Simply put, there remains no “live controversy” as to these
Appellants, and any relief they seek now would be “meaningless.” 10 The
waitlists were controversial, but that controversy has concluded.




       6  Fla. Dep’t of Ins. v. Chase Bank of Tex. Nat’l Ass’n, 274 F.3d 924, 929 (5th Cir. 2001)
(quoting Lujan, 504 U.S. at 560–61).
        7 K.P. v. LeBlanc, 729 F.3d 427, 438 (5th Cir. 2013); see also Alvarez v. Smith, 558 U.S.

87, 92 (2009).
        8 Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S.

478, 481 (1982) (per curiam)).
        9 Id. at 91 (quoting Alvarez, 558 U.S. at 93).
        10 See id; Fontenot v. McCraw, 777 F.3d 741, 747 (5th Cir. 2015) (“Because there

remains no live controversy between the parties . . . the injunction they seek would be
meaningless.”).
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      And it might not even be a “controversy” at all: Federal courts generally
refrain from granting relief without the “concrete adverseness which sharpens
the presentation of issues upon which the court[s] so largely depend[] for
illumination of difficult constitutional questions.” 11 All parties agree that
waitlists are unconstitutional. They all agree that waitlists for non-capital
defendants no longer exist. They all agree that this case does not implicate
abstention concerns, even though a state-government defendant would
typically object on this basis. They even agree that they disagree: When the
district court asked the parties whether they agreed too much for a truly
adversarial proceeding, they—no surprise—agreed that “there was sufficient
adversity.” This deep-rooted agreement on the central issues of the case gives
us further pause to address the merits. But because we hold that the dispute
(such as it is) is moot, we need not address “concrete adverseness” today.
                                             B
      Of course, a defendant cannot moot a case simply by ending its unlawful
conduct once sued. 12 If this were allowed, “a defendant could engage in
unlawful conduct, stop when sued to have the case declared moot, then pick up
where he left off, repeating this cycle until he achieves all his unlawful ends.” 13
As we have noted, “Defendant-induced mootness is viewed with caution.” 14
“[A]llegations 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.” 15 Essentially, the goal is




      11 Baker v. Carr, 369 U.S. 186, 204 (1962).
      12 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982).
      13 Already, 568 U.S. at 91.
      14 Fontenot, 777 F.3d at 747.
      15 Envt’l Conservation Org. v. City of Dallas, 529 F.3d 519, 528 n.4 (5th Cir. 2008).

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                                       No. 17-30779
to determine whether the defendant’s actions are “litigation posturing” or
whether the controversy is actually extinguished. 16
       Here, neither side contends the case has ended, though both sides
concede the waitlists have ended. But no matter whose actions are credited
with mooting the case—Appellees for discontinuing the waitlists, or the
Legislature for reallocating the funding—this case neither invokes the
skepticism normally associated with “defendant-induced mootness” nor raises
suspicions of “litigation posturing.” This is in part because we “are justified in
treating a voluntary governmental cessation of possibly wrongful conduct with
some solicitude.” 17 Absent evidence to the contrary, we are to presume public-
spiritedness, says the Supreme Court. Government officials “in their sovereign
capacity and in the exercise of their official duties are accorded a presumption
of good faith because they are public servants, not self-interested private
parties.” 18 So, “[w]ithout evidence to the contrary, we assume that formally
announced changes to official governmental policy are not mere litigation
posturing.” 19
       What’s more, in this case the public defenders largely agreed that
waitlists were unconstitutional, but argued that inadequate funding tied their
hands. Indeed, Appellees joined Appellants in urging us to declare the waitlists
unconstitutional. So, it is highly unlikely that the “formally announced
change[] to official governmental policy”—eliminating non-capital defendant




       16 See, e.g., Ctr. for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 426
(5th Cir. 2013).
       17 Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009), aff’d on other

grounds sub nom. Sossamon v. Texas, 563 U.S. 277 (2011).
       18 Id.
       19 Id.

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                                       No. 17-30779
waitlists—is “mere litigation posturing.” 20 We doubt Appellees will re-
implement waitlists on their own initiative.
                                               C
       While it is possible that some day, for some reason, waitlists could
resume, Appellants’ claims do not satisfy the “capable of repetition, yet evading
review” exception to the mootness doctrine. 21 That exception applies only when
“(1) the challenged action is in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there is a reasonable expectation that the
same complaining party will be subjected to the same action again.” 22
       The second prong presents a problem for Appellants. The Supreme Court
has “consistently refused to ‘conclude that the case-or-controversy requirement
is satisfied by’ the possibility that a party ‘will be prosecuted for violating valid
criminal laws.’” 23 Instead, courts must “assume that [Appellants] will conduct
their activities within the law and so avoid prosecution and conviction as well
as exposure to the challenged course of conduct.” 24
       Here, there is no “reasonable expectation that the same complaining
party will be subjected to the same action again.” 25 Indeed, for that to happen,
Appellants would need to violate the law again, be apprehended again, and be
placed on a waitlist while in pretrial custody again. Because we must assume




       20 Id.
       21  United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018) (quoting
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016)).
       22 Turner v. Rogers, 564 U.S. 431, 440 (2011) (cleaned up).
       23 Sanchez-Gomez, 138 S. Ct. at 1540–41 (quoting O’Shea v. Littleton, 414 U.S. 488,

497 (1974)).
       24 Id. at 1541; see, e.g., Spencer v. Kemna, 523 U.S. 1, 15 (1998) (reasoning that a suit

concerning a parole revocation order was moot following the appellant’s release from custody
because any continuing consequences were “contingent upon [the appellant] violating the
law, getting caught, and being convicted”).
       25 Turner, 564 U.S. at 439–440.

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                                       No. 17-30779
that Appellants will follow the law rather than flout it, we cannot deem their
claims “capable of repetition.”
                                       *      *      *
        The funding plight afflicting public defenders is real. 26 But under Article
III, courts may adjudicate only “actual and concrete disputes, the resolutions
of which have direct consequences on the parties involved.” 27 Anything we
decide regarding Louisiana public defender practices would have zero
consequences on the parties involved. No defender district subject to ROS
protocols maintains a waitlist for appointed counsel for non-capital defendants.
As the waitlists have disappeared, so too have Appellants’ constitutional
claims.
                                             III
        However this case is framed—a genuinely adversarial effort to enforce
rights or a coordinated public-relations effort to force funding—Article III
requires live cases and controversies. Our Constitution has something to say
about        indigent   defendants    languishing        indefinitely   in   jail   without
representation, but that is not this case—at least not any more. Since this
appeal was filed, Louisiana lawmakers have reallocated funding for appointed
counsel sufficient to render the waitlists for non-capital defendants non-
existent. That fiscal action moots this legal action.
        As courts cannot redress what they cannot address, we DISMISS.




        26The Louisiana State Public Defender contends that fiscal shortfalls persist, even if
waitlists for non-capital defendants do not: “The chronic underfunding of indigent defense
continues, and LPDB is unable to fund all aspects of indigent defense with the resources
allocated by the Louisiana Legislature.”
       27 Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 71 (2013).

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