Friday, January 27, 2017

TOP STORY >> Magistrate skeptical of lawsuit

Leader staff writer

A lawsuit filed against Sherwood, Pulaski County and Judge Milas Hale by the ACLU on behalf of five individuals claiming Sherwood’s hot check court is nothing but “a debt enforcement and collection scheme” has been recommended for dismissal.

Filed last August, the suit said that the hot check court denied “due process for a steady stream of local citizens.”

The suit claimed Sherwood “through a labyrinth – and lucrative – system, can have a single check for $15 returned for insufficient funds that can be leveraged into many thousands of dollars in court costs, fines and fees.”

But Magistrate Judge Joe Volpe didn’t see it that way and has recommended that the case be dismissed. The American Civil Liberties Union has 12 days left to object, and they plan to do so.

“We respectfully disagree with the magistrate’s recommendation. We will continue to fight for the rights of our clients and others subject to abusive debtors’ prison practices,” said Rita Sklar, ACLU executive director.

Volpe looked at the merits of the case at the request of U.S. District Judge James Moody Jr., who will make the final decision in the case.

Attorney Michael Mosley, who is representing both the city and Judge Hale, said he was very pleased with the recommendation. “It shows that we had a very sound and accurate argument.”

Sherwood City Attorney Steve Cobb echoed Mosley’s thoughts, “We are very encouraged by this decision.”

“A state may not punish an individual just because he or she is poor,” was the opening statement in the 58-page, 11-count suit filed by four individuals, Charles Dade, Nakita Lewis, Nikki Petree and Lee Robertson, that have been tied up in Sherwood’s hot check court for years.

A fifth individual, Philip Axelroth, listed as a plaintiff, has never been prosecuted under Sherwood’s hot check laws, yet, according to Volpe’s eight-pages of findings, argues that “defendants are misusing and misapplying public funds received from taxes paid by arresting and incarcerating individuals” through the hot check court.

Shortly after Judge Hale was served with the lawsuit, he said that he had nothing to hide. “I have a seat to the right of me for the press to come in anytime and see what we are doing,”

The lawsuit pushed the issue of “threat and the reality of incarceration to trap their poorest citizens in a never-ending spiral of repetitive court proceedings and ever increasing debt.”

In his recommendation for dismissal, Volpe judged the merits of the case against the Younger Abstention Doctrine, and the ACLU suit did not meet the needed requirements.

“I do not recommend dismissal lightly,” the judge said in his report. “However, after careful consideration of the pleadings, I find dismissal appropriate.”

Volpe believes that the plaintiffs have plenty of other avenues to voice their concerns and complaints in the normal court proceeding and appeals. “The Plaintiffs’ unwillingness to pursue any relief in state court fails to support showing of ‘great immediate’ irreparable injury,” Volpe said in his findings.

“The arguments put forth by the defendants in the case seek to insulate government actions from review,” Sklar said. “The recommendations of the magistrate did not touch the merits of our clients’ claims and instead are based on procedural/jurisdictional matters. We are heartened that the magistrate judge denied all the defendants’ arguments except for this narrow issue,” she said.

The original lawsuit made a number of claims that seemed to have been exaggerated.

The suit claimed that the hot check division generated about 12 percent of the city’s $21 million general fund, but, according to an analysis by The Leader, the hot check division, by itself, covers only about 4 percent of the budget.

The ACLU suit also contended that the plaintiffs had “not a single advocate to whom to turn to understand and assert their rights.”

The suit alleged that the court has no recordings or transcripts of the proceedings and holds no hearing on the closure of the criminal proceedings. “The secrecy shrouding proceedings … also ensures violations of hot check defendants’ constitutional rights, as alleged in this complaint, go unchecked and unchallenged,” the suit states.

According to the suit, the Sherwood court has about 49,000 active hot check cases (based on 2011 figures) and issues, on average, “96 warrants a day, 365 days a year.”

Records show the hot-check division brought in $798,690 in 2014, $708,448 in 2015 and around $700,000 in 2016.

Mosley said it was not unusual for a federal judge to assign certain aspects of a case to a magistrate or lower-level judge. Federal judges are appointed to life terms, while magistrates are 10-year positions.