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MacArthur Amicus Brief in Bonin
MacArthur Amicus Brief in Bonin
No. 21-30620
Plaintiffs - Appellants,
v.
Defendants - Appellees.
_________________________
No. 21-30620
Plaintiffs - Appellants,
v.
Defendants - Appellees.
_________________________
The undersigned counsel of record certifies that the following listed per-
sons and entities as described in the fourth sentence of Rule 28.2.1 have an in-
terest in the outcome of this case. These representations are made in order that
Plaintiffs-Appellants
1. Hakeem Meade
2. Marshall Sookram
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3. William R. Maurer
4. Jaba Tsituashvili
5. Institute for Justice
6. William Brock Most
7. Most & Associates
Defendants-Appellees
Amicus Curiae
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TABLE OF CONTENTS
Page
ARGUMENT................................................................................................ 4
CONCLUSION ........................................................................................... 25
CERTIFICATE OF COMPLIANCE .......................................................... 27
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TABLE OF AUTHORITIES
Page(s)
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................. 12
Ayo v. Dunn,
No. 3:17-cv-526 (M.D. La. filed Aug. 7, 2017) ................................... 24, 25
Baxter v. Bracey,
140 S. Ct. 1862 (2020) ....................................................................... 17, 18
Brown v. Thompson,
430 F.2d 1214 (5th Cir. 1970) .................................................................. 11
Brown v. Vance,
637 F.2d 272 (5th Cir. 1981) .............................................................. passim
Caliste v. Cantrell,
937 F.3d 525 (5th Cir. 2019) ...................................................................... 5
Cates v. Int’l Tel. & Tel. Corp.,
756 F.2d 1161 (5th Cir. 1985) .................................................................. 13
Dennis v. Higgins,
498 U.S. 439 (1991) ................................................................................. 20
Durgin v. Graham,
372 F.2d 130 (5th Cir. 1967) .................................................................... 11
Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale,
11 F.4th 1266 (11th Cir. 2021) ................................................................. 20
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Hitt v. Pasadena,
561 F.2d 606 (5th Cir. 1977) .............................................................. 10, 12
Hollis v. Itawamba Cty. Loans,
657 F.2d 746 (5th Cir. 1981) .................................................................... 20
Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of
Ga., Inc.,
892 F.3d 719 (5th Cir. 2018) .............................................................. 13, 14
Jacquez v. Procunier,
801 F.2d 789 (5th Cir. 1986) ...........................................................4, 10, 11
Jamison v. McClendon,
476 F. Supp. 3d 386 (S.D. Miss. 2020) .......................................... 17, 18, 19
Marshall v. Jerrico, Inc.,
446 U.S. 238 (1980) ......................................................................... 3, 4, 10
Means v. Chicago,
535 F. Supp. 455 (N.D. Ill. 1982) ............................................................. 26
Mitchum v. Foster,
407 U.S. 225 (1972) .................................................................. 4, 14, 18, 22
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Monroe v. Pape,
365 U.S. 167 (1961) ................................................................................. 17
Morrison v. City of Baton Rouge,
761 F.2d 242 (5th Cir. 1985) .................................................................... 11
Schultea v. Wood,
27 F.3d 1112, 1118 (5th Cir. 1994), on reh’g en banc, 47 F.3d
1427 (5th Cir. 1995) ................................................................................. 12
Tumey v. Ohio,
273 U.S. 510 (1927) ........................................................................... 5, 6, 9
Turner v. Pleasant,
663 F.3d 770 (5th Cir. 2011) .................................................................... 12
Wilson v. Garcia,
471 U.S. 261 (1985) ................................................................................. 19
Statutes
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ERISA ......................................................................................................... 13
RICO ........................................................................................................... 25
Other Authorities
1 W. Fleming, Documentary History of Reconstruction 283–285
(1950) ...................................................................................................... 22
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advocate for human rights and social justice through litigation. RSMJC has of-
RSMJC’s attorneys have led civil rights battles in areas that include police mis-
conduct, compensation for the wrongfully convicted, and the treatment of incar-
cerated men and women. RSMJC litigates appeals related to civil rights through-
out the federal circuits and the Supreme Court of the United States.
sibly allege the existence of the following unconstitutional system: the judge was
a company run by the former law partner of the judge without disclosing that
1
Pursuant to Rule 29(a)(4)(E) of the Federal Rules of Appellate Proce-
dure, RSMJC states that no party’s counsel authored the brief in whole or in
part; no party’s counsel contributed money intended to fund preparing or sub-
mitting the brief; and no person contributed money that was intended to fund
preparing or submitting the brief.
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gave the judge a $1,000 campaign loan that was never repaid, which the judge
did not disclose; the ankle monitoring company generated income by charging
the criminal defendants exorbitant daily fees for the monitoring; the company
sent the judge payment status reports with “detailed information about each in-
dividual defendant’s payment history and status”—with notations that some de-
fendants are “‘highlighted’ solely because they are behind on payments;” and
the judge coerced the defendants into paying the excessive fees in collaboration
with his favored company. ROA.64, 70–71, 73–74. This structure creates a sys-
tem in which it reasonably appears to onlookers that both the judge and the pri-
vate actor will be tempted not to act in the public interest, because of the undue
well-pleaded allegations of this conduct, the district court dismissed this case on
the pleadings after finding that Appellants’ “allegations depend on the specific
relationship between Judge Bonin and ETOH and therefore fail to state an insti-
judge and ETOH, and addressing an argument that the district court even
acknowledged Appellants “do not argue,” the district court summarily dis-
missed the due process claim, stating: “To find that Plaintiffs have stated an in-
stitutional incentives claim would require the Court to hold that OPCDC’s use
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judges’ reelection campaigns violates due process because the judges would face
“fee system” that “creates a possible temptation for judges to be biased against
272, 281–82 (5th Cir. 1981). The Due Process Clause forbids any interest that
“offer[s] a possible temptation to the average man as a judge” to forsake his ob-
ligation of impartiality. See Ward v. Vill. of Monroeville, 409 U.S. 57, 60 (1972)
(quoting Tumey v. Ohio, 273 U.S. 510, 532 (1927)). Thus, at a minimum, this
“[a] scheme injecting a personal interest, financial or otherwise, into the enforce-
ment process.” Marshall v. Jerrico, Inc., 446 U.S. 238, 249–50 (1980).
Given the constitutional concerns presented by this case, the district court
committed a serious, reversible error by dismissing this case with prejudice and
not permitting the Appellants to amend the complaint. As this Court has ex-
plained in the § 1983 context and elsewhere, “[d]ismissing an action after giving
the plaintiff only one opportunity to state his case is ordinarily unjustified.”
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Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). “The very purpose of §
1983 was to interpose the federal courts between the States and the people, as
guardians of the people’s federal rights—to protect the people from unconstitu-
tional action under color of state law, ‘whether that action be executive, legisla-
tive, or judicial.’” Mitchum v. Foster, 407 U.S. 225, 242 (1972) (citation omitted).
The district court’s dismissal with prejudice sets a dangerous precedent for plain-
tiffs attempting to shed light on corrupt judicial systems using § 1983 claims—
an already herculean task. For these reasons, the RSMJC respectfully submits
that this Court should reverse the decision below, and, at a minimum, remand
ARGUMENT
The Appellants here pleaded a due process violation after alleging in detail
the corruption in ETOH’s fee system for court-ordered ankle monitoring as im-
plemented. The Due Process Clause “entitles a person to an impartial and dis-
interested tribunal in both civil and criminal cases” and imposes a “requirement
242 (1980); see also The Federalist No. 10, at 59 (J. Cooke ed. 1961) (“No man is
allowed to be a judge in his own cause; because his interest would certainly bias
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his judgment, and, not improbably, corrupt his integrity.”); Edward Coke, 1 In-
stitutes of the Laws of England 141 (12th ed. 1738). Indeed, “it is by now well-
settled that any judge,” or “anyone discharging a judicial function must be im-
partial.” Harper v. Pro. Prob. Servs. Inc., 976 F.3d 1236, 1241 (11th Cir. 2020).
ant in a criminal case of due process of law, to subject his liberty or property to
the judgment of a court the judge of which has a direct, personal, substantial,
pecuniary interest in reaching a conclusion against him in his case.” Tumey, 273
U.S. at 523. Under the Tumey standard, according to the Supreme Court, a vio-
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 ac-
cused.” Ward, 409 U.S. 57, 60 (1972) (citing Tumey, 273 U.S. at 532). This Cir-
cuit applies the Tumey standard to “cases addressing incentives that a court’s
structure creates in every case.” Caliste v. Cantrell, 937 F.3d 525, 530 (5th Cir.
2019) (holding system where money raised from pretrial release bonds funded
various judicial expenses violated due process). In these structural cases, the
standard is that “the mere threat of impartiality” violates due process. Id.
This Court has explained that there is “an inherent vice” in a “fee system”
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conscious prejudice” from “a biased tribunal.” Brown v. Vance, 637 F.2d 272, 281
(5th Cir. 1981); Tumey, 273 U.S. at 523. That is why the Supreme Court has said
that the Due Process Clause forbids any interest that “offer[s] a possible tempta-
tion to the average man as a judge” to forsake his obligation of impartiality. See
Here, the district court incorrectly found that Appellants did not present a
a judge who had extensive undisclosed personal, political, and financial ties to
the company that provided the judge a $1,000 loan that was never repaid, and
charged them $238 to $310 per month, on top of the requirement that they pay
a $100 installation fee. Appellants alleged that Judge Bonin exercised his author-
ity over defendants’ pretrial status by ordering them to ankle monitoring, specif-
companies that did not have the same undisclosed ties with Judge Bonin. In
gations owed to the ankle monitoring company.’” ROA.72. ETOH, for its part,
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instructed the judge which defendants were behind on fees. Indeed, Appellants
detailed how, “[e]very month, [Appellee] ETOH” would send the judge “a Pay-
ment Status Report” with “detailed information about each individual defend-
ant’s payment history and status, including each individual defendant’s latest
payment to ETOH and outstanding fees due to ETOH,” and how “ETOH’s
Payment Status Reports” would “include notations such as ‘Please note that the
solely because they are behind on payments.” ROA.73. This structure created a
clear temptation for Judge Bonin and ETOH to make decisions based on finan-
by defendants.
This case is on all fours with this Court’s decision in Brown. In Brown, as
is the case here, the due process violation also was not specific to each individual
judge within the system; rather, the institutional bias existed in how the system
influenced the decision-making in all cases before select judges. 637 F.2d at 274–
75, 281. There, as should have been the case here, this Court found unconstitu-
tional as applied a statutory fee system under which judges were tempted to mis-
use their judicial power because, even though they were paid for cases regardless
of the outcome, convicting curried favor with law enforcement or other individ-
uals choosing a judge. Id. And there, as should have been the case here, this
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Court recognized that while many judges would be “pure in heart and resistant
to the effect their actions may have on arresting officers and litigating creditors,”
the incentives of the system violated the due process right of “every accused person
and every civil litigant,” as defendants are entitled to “a system that is not only
fair on its face but in practical operation is free of temptation to the trial judge to
court should have applied here. The temptation for bias by Judge Bonin and
ETOH stems from a system plagued by the incentive to keep individuals on an-
because they were a flight risk or presented a threat to the community. In Brown,
a higher rate of convictions per arrest benefitted police, and judges benefitted
from more cases in their courts. Here, the judge benefitted by currying favor with
ing loans and which was owned by his former law partner) and ETOH benefited
Here, the district court failed to account for how the Supreme Court’s de-
cisions in “Tumey and Ward make it clear that a violation of due process occurs
when the system creates the possibility that judges will fail to hold ‘the balance
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nice, clear and true.’” Brown, 637 F.2d aet 284 (emphasis added). The district
court took a narrow view and found that there was no institutional claim because
tween Judge Bonin and ETOH and therefore fail to state an institutional incen-
tives claim.” ROA.960. But this narrow, hyper-technical approach is not the
correct standard. The Supreme Court has stated that “[i]t is sufficiently clear
from our cases that those with substantial pecuniary interest in legal proceedings
should not adjudicate these disputes,” and “that the financial stake need not be
564, 579 (1973) (citing Tumey, 273 U.S. 510, and Ward, 409 U.S. 57). Under this
broad approach, the Supreme Court affirmed a decision that applied the Tu-
Board from revoking non-member optometry licenses given “the pecuniary in-
terest of the members of the Board.” Id. It should therefore certainly apply here.
The district court’s approach ignores the fact that the Supreme Court has
set a baseline for constitutional violations and explained that “[a] scheme inject-
ing a personal interest, financial or otherwise, into the enforcement process may
some contexts raise serious constitutional questions.” Marshall, 446 U.S. at 249–
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crosses that line, as institutional bias from ETOH’s financial motives and Judge
Bonin’s undisclosed ties infected all cases before him. It was therefore error for
the district court to have dismissed this § 1983 case on such narrow grounds.
Dismissing this case with prejudice, without leave to amend, and with-
out explaining how any amendment was futile, was contrary to law.
by Appellants, the district court erred by dismissing this case and plainly erred
an action after giving the plaintiff only one opportunity to state his case is ordi-
narily unjustified.” Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). A
complaint should not be dismissed with prejudice unless “it appears to be a cer-
tainty that the plaintiff cannot possibly be entitled to relief under any set of facts
which could be proved in support of its allegations.” Hitt v. Pasadena, 561 F.2d
606, 608 (5th Cir. 1977) (quoting Byrd v. Bates, 220 F.2d 480, 482 (5th Cir. 1955)).
And, “[e]ven then,” this Court has explained that “a court ordinarily should not
dismiss the complaint except after affording every opportunity [for] the plaintiff
In the § 1983 context, this Court has explained that dismissal with preju-
dice is only warranted when the pleadings do not state a cognizable claim and,
when “viewed under the individual circumstances of the case, demonstrate that
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the plaintiff has pleaded his best case.” Jacquez, 801 F.3d at 793; cf. Morrison v. City
of Baton Rouge, 761 F.2d 242, 246 (5th Cir. 1985) (upholding the dismissal of a §
1983 action where “the specific allegations of the amended complaint constitute
the plaintiffs’ best case for demonstrating that [the defendant] acted outside the
“[a]lthough a court may dismiss the claim, it should not do so without granting
leave to amend, unless the defect is simply incurable or the plaintiff has failed to
plead with particularity after being afforded repeated opportunities to do so.” Hart v.
Bayer Corp., 199 F.3d 239, 247 n.6 (5th Cir. 2000) (emphases added).
This only makes sense given the stakes: “The sanction of dismissal is the
most severe sanction that a court may apply, and its use must be tempered by a
careful exercise of judicial discretion.” Durgin v. Graham, 372 F.2d 130, 131 (5th
Cir. 1967). This Court has explained that “the dismissal of a case with prejudice
is a drastic remedy to be used only in those cases where a lesser sanction would
not better serve the interests of justice.” Brown v. Thompson, 430 F.2d 1214, 1216
(5th Cir. 1970). And that is because justice for plaintiffs is a paramount concern
given that a dismissal with prejudice “may well deny them the opportunity to
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It also makes sense given the low bar Appellants must meet because a suf-
ficiently pled complaint “need not contain detailed factual allegations.” Turner
v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011). Rather, a claim need only have
“facial plausibility,” or “factual content that allows the court to draw the rea-
sonable inference that the defendant is liable for the misconduct alleged.” Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007). “The notice pleading requirements of Federal Rule of Civil Proce-
dure 8 and case law do not require an inordinate amount of detail or precision.”
St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir. 2000); see also
GE Capital Corp. v. Posey, 415 F.3d 391, 396 (describing Rule 8(a) as a “low bar”).
Keeping all this in mind, there was plainly no basis to dismiss Appellants’
case to the district court so that [Appellants] may amend [the] complaint, if pos-
sible, to plead sufficient facts supporting a claim under the Fourteenth Amend-
ment.” Schultea v. Wood, 27 F.3d 1112, 1118 (5th Cir. 1994), on reh’g en banc, 47
F.3d 1427 (5th Cir. 1995). Nothing in the record shows that the district court
And even if Appellants did not satisfy the pleading requirements of § 1983, “such
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deficiencies do not normally justify dismissal of the suit on the merits and with-
out leave to amend, at least not in the absence of special circumstances.” Cates
v. Int'l Tel. & Tel. Corp., 756 F.2d 1161, 1180 (5th Cir. 1985).
Here, the district court identified no special circumstances that could jus-
tify dismissal with prejudice. If anything, the district court erroneously required
of facts “must simply ‘give the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests.’” GE Capital Corp., 415 F.3d at 396 (5th
Cir. 2005). And when judging such notice, the court should consider the parties’
relative access to evidence. The district court’s dismissal directly contradicts “the
formation in her complaint.” Innova Hosp. San Antonio, Ltd. P'ship v. Blue Cross &
Blue Shield of Ga., Inc., 892 F.3d 719, 730 (5th Cir. 2018) (reversing dismissal of
ERISA claim for failure to state a claim when relevant plan provisions were in
possession of defendants). Like Innova, the district court wrongly required Plain-
tiffs to plead facts it could not possess to even reach discovery—an impossible
task. And similar to the ERISA context, in this § 1983 action, “the remedial
scheme of the statute will fail, and the crucial rights secured . . . will suffer.”
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Innova Hosp. San Antonio, Ltd. P'ship, 892 F.3d at 731 (5th Cir. 2018) (quoting
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 598 (2009)). The district court’s
Dismissing this case was contrary to the role that federal courts are sup-
posed to play when adjudicating cases brought under § 1983.
Finally, dismissing this case about an inherently suspect “fee system” set
up by a judge and ETOH, while ostensibly acting under color of state law, would
tended to give a broad remedy for violations of federally protected civil rights,”
and the Supreme Court has instructed us that “Congress intended § [1983] to be
broadly construed.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 685–686 (1978).
“The very purpose of § 1983 was to interpose the federal courts between the
States and the people, as guardians of the people’s federal rights—to protect the
people from unconstitutional action under color of state law, ‘whether that ac-
tion be executive, legislative, or judicial.’” Mitchum v. Foster, 407 U.S. 225, 242
(1972) (quoting Ex parte Commonwealth of Virginia, 100 U.S. 339, 346 (1879)).
Section 1983 was enacted as part of the Civil Rights Act of 1871, but even
before the Civil Rights Act of 1871, Congress had enacted the Civil Rights Act
of 1866 to reform corrupt state criminal justice systems after the Southern states
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subjugated Black Americans to unequal treatment under the law by passing the
Black Codes. “Following the Civil War, Southern States enacted Black Codes
to subjugate newly freed slaves and maintain the prewar racial hierarchy.” Timbs
v. Indiana, 139 S. Ct. 682, 688 (2019). “The Black Codes were a substitute for
slavery[.]” Bell v. State of Md., 378 U.S. 226, 247 (1964) (Douglas, Goldberg, JJ.,
concurring in part); see also id. at 688 n. 3 (“The penal codes provided harsher
and more arbitrary punishments for blacks than for whites, and some states per-
ants.’ Negroes were not allowed to bear arms or to appear in all public places,
and there were special laws governing the domestic relations of the blacks. . . .
[I]n such states as South Carolina and Mississippi there was clearly evident a
age.’” (quoting Samuel Morison and Henry Commager, THE GROWTH OF THE
“The 39th Congress focused on these abuses during its debates over the
Fourteenth Amendment, the Civil Rights Act of 1866, and the Freedmen’s Bu-
reau Act.” Timbs, 139 S. Ct. at 697 (Thomas, J., concurring). Given the oppres-
South, Congress passed the Fourteenth Amendment and guaranteed that any-
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one “born or naturalized in the United States” is a citizen entitled to all “privi-
leges and immunities” that such citizenship afforded. U.S. Const., amend. XIV,
§ 1. Then, Congress passed the Civil Rights Act of 1866, which like the Freed-
man’s Bureau Bill of 1866, 2 guaranteed that “citizens[] of every race and color,
. shall have the same right . . . to full and equal benefit of all laws and proceedings
for the security of person and property.” An Act to Protect All Persons in the
United States in Their Civil Rights and Liberties, and Furnish the Means of
It was universally known that the Civil Rights Act of 1866 would permit
federal courts to step in and remedy the corrupt judicial systems perpetrating the
Indeed, Senator Lyman Trumbull, drafter of the Civil Rights Act, stated une-
in the execution or under color of an illegal act, may be and ought to be pun-
ished.” Cong. Globe, 39th Cong., 1st Sess. 1758 (Sen. Trumbull).
The Civil Rights Act of 1866 was not enough, however, as the Ku Klux
2
A Bill Continuing and Amending the Act Establishing the Freedmen’s
Bureau, c. 200, 14 Stat. 173 (July 16, 1866)
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Americans in the South. The Klan orchestrated a “huge wave of murder and
arson.” Ron Chernow, GRANT 568 (2017). And the most pernicious aspect
about the Klan’s violence was that it was effectively state-sanctioned, as “[m]any
“[i]t was a twisted law enforcement,” “as it prevented the laws of the era from
being enforced.” Jamison v. McClendon, 476 F. Supp. 3d 386, 399 (S.D. Miss.
ond Civil Rights Act and decided to take action in the face of Southern judges
against Black Americans. Cf. Monroe v. Pape, 365 U.S. 167, 174 (1961) (“The
debates are replete with references to the lawless conditions existing in the South
in 1871.”). By passing the Civil Rights Act of 1871, “Congress sought to respond
to ‘the reign of terror imposed by the Klan upon black citizens and their white
sympathizers in the Southern States.’” Baxter v. Bracey, 140 S. Ct. 1862 (2020)
(Thomas, J., dissenting) (quoting Briscoe v. LaHue, 460 U.S. 325, 337 (1983)). In
relevant part, “Section 1 of the Ku Klux Act, now codified as 42 U.S.C. § 1983,
rights,’” and “the doors to the courthouse were opened to ‘any person who ha[d]
been deprived of her federally protected rights by a defendant acting under color
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of state law.’” Jamison, 476 F. Supp. 3d at 400. “Put in simpler terms, § 1 gave
individuals a right to sue state officers for damages to remedy certain violations
of their constitutional rights.” Baxter, 140 S. Ct. 1862 (Thomas, J., dissenting).
courts to play an active role in reforming corrupt state criminal justice systems.
“Proponents of the legislation noted that state courts were being used to harass
and injure individuals, either because the state courts were powerless to stop
deprivations or were in league with those who were bent upon abrogation of
were cognizant of the corruption that festered in the state court system at the
expense of the constitutional rights of American citizens. See, e.g., Cong. Globe,
42nd Cong., 1st Sess. at 394 (Rep. Rainey) (“[T]he courts are in many instances
under the control of those who are wholly inimical to the impartial administra-
tion of law and equity.”); id. at 429 (Rep. Beatty) (referencing “bribed judges”);
id. at 481 (Rep. Wilson) (noting the “corruption of courts”). And so § 1983 rep-
resented a “vast transformation from the concepts of federalism that had pre-
Section 1983 was passed to provide federal courts the power to remedy conduct
by state officials and actors—including judges. Cf. Cong. Globe, 42nd Cong., 1st
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Sess. 501 (Sen. Frelinghuysen) (“when the courts of a State violate the provisions
of the Constitution or the law of the United States there is now relief afforded
words of today’s abolitionists – ‘the whole damn system [was] guilty as hell.’”
Thus, when faced with unique unconstitutional state action like the cor-
ruption alleged here, more scrutiny is required by our federal courts—not less.
Accord Wilson v. Garcia, 471 U.S. 261, 271–72 (1985) (“[Section] 1983 provides a
‘uniquely federal remedy against incursions under the claimed authority of state
accord the statute ‘a sweep as broad as its language.’”) (internal citation omit-
ted)). This is because federal courts hold a unique, and important role, in vindi-
cating our fundamental constitutional rights. Cf. Hicks v. Miranda, 422 U.S. 332,
355 (1975) (“The duty of the federal courts to adjudicate and vindicate federal
constitutional rights is, of course, shared with state courts, but there can be no
doubt that the federal courts are ‘the primary and powerful reliances for vindi-
cating every right given by the Constitution, the laws, and treaties of the United
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Indeed, when as here, a plaintiff has alleged that he has been deprived of
his federal due process right through the improper use of state power, it should
generally be held that the plaintiff has a “presumptively valid section 1983
claim[.]” Hollis v. Itawamba Cnty. Loans, 657 F.2d 746, 749–50 (5th Cir. 1981)
(noting that the plaintiff had “stated a presumptively valid section 1983 claim
for damages based . . . upon the improper abuse of the statutory procedure (even
The district court tried to fit Appellants’ § 1983 claim into a specific box
That narrow and overly technical interpretation of § 1983 was improper given
rights.” Dennis v. Higgins, 498 U.S. 439, 445 (1991) (citation omitted). The dis-
trict court’s narrow, hyper-technical approach to the § 1983 claim here “re-
strict[ed] the scope of § 1983” and should have therefore “come[] with a heavy
burden of justification” for doing so—“a burden that is both constitutional and
historical.” Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th
1266, 1283 (11th Cir. 2021) (quoting Harry A. Blackmun, Section 1983 and Fed-
eral Protection of Individual Rights — Will the Statute Remain Alive or Fade Away?,
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Case: 21-30620 Document: 00516150111 Page: 30 Date Filed: 12/30/2021
60 N.Y.U. L. REV. 1, 28 (1985)). But there was—and is—no justification for the
for those injured by a deprivation of federal rights and deterrence to prevent fu-
ture abuses of power.” Valenzuela v. City of Anaheim, 6 F.4th 1098, 1102 (9th Cir.
At bottom, this Court should not lose sight of how the facts presented here
involve a case where a judge and a judicial actor had significant undisclosed ties
and corruptly charged and enforced the collection of draconian fees. As the Su-
preme Court has noted, excessive fees were a key focus of Congress during the
passage of the Civil Rights Act of 1866. Cf. Timbs, 139 S. Ct. at 688–89 (discuss-
ing the Black Codes and explaining: “Among these laws’ provisions were dra-
conian fines for violating broad proscriptions on ‘vagrancy’ and other dubious
offenses. When newly freed slaves were unable to pay imposed fines, States of-
ten demanded involuntary labor instead. Congressional debates over the Civil
Rights Act of 1866, the joint resolution that became the Fourteenth Amend-
ment, and similar measures repeatedly mentioned the use of fines to coerce in-
voluntary labor.”) (citing, among other things, Mississippi Vagrant Law, Laws
283–285 (1950)); see also Paul Finkelman, John Bingham and the Background to the
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Case: 21-30620 Document: 00516150111 Page: 31 Date Filed: 12/30/2021
Codes' use of fines and other methods to “replicate, as much as possible, a sys-
A state court system that imposes harsh fines and fees on indigent criminal
defendants is problematic enough, but when those harsh fines are levied and
enforced by a judge and private company with significant undisclosed ties and
while these fees are theoretically meant to serve a deterrent effect to dissuade
defendants from committing crimes in the future, “expensive court costs can
measures to evade the authorities,” only ensuring them another day in court. See
Matthew Trudeau, Instead of Treated They Get Fees: A Hard Knock Life for Indigent
Criminal Defendants and the Need for Unbiased Determinations of Indigent Status, 47
Hofstra L. Rev. 1433, 1452 (2019). This is what § 1983 is meant to prevent—
The decision below not only harms Appellants, but does violence to the
purpose of § 1983 by making it harder for future plaintiffs to seek justice from
federal courts. Future plaintiffs will not only struggle to gleam guidance from
the district court’s opinion, but will also have to distinguish this case without
insight into the district court’s rationale. This abdicates the federal courts’ role
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Case: 21-30620 Document: 00516150111 Page: 32 Date Filed: 12/30/2021
by this case is not unique to Judge Bonin’s court, nor is it unique to the Orleans
Parish Criminal District Court given the fact that the Louisiana’s legislature has
systematically underfunded the courts for decades. The state’s general fund sub-
a court’s budget, apart from the salaries of the judiciary, that the state is required
to pay. 3 Similarly, the cities and parishes hosting the district courts are respon-
sible to pay for few expenses apart from the space for the court to operate. 4
either hope that the cities or parishes deign pretrial supervision a service worthy
to provide, or they must rely on user-funded third parties. For example, the City
of New Orleans had contracted with the Sheriff’s Office to provide monitoring
3
The state’s funding obligations appear to be limited to a travel and ex-
pense stipend for each judge, and the partial salaries of a court reporter, deputy
court reporter, and minute clerk for each chambers. La. R.S. § 13:1373.1 (requir-
ing state payment of $12,478 annual salary each for one court reporter and one
deputy reporter and $15,791 annual salary for each minute clerk).
4
The city of New Orleans is required to pay small portions of the salaries
of court reporters and minute clerks (La. R.S. §§ 13:1346, 1347, 1373); partial
salaries of the jury commissioner and her clerks (La. R.S. §§ 13:3053); and the
cost of sanity commissions (La. Code Crim. Proc. art. 659); and must provide a
building for the court (La. R.S. § 13:1383).
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Case: 21-30620 Document: 00516150111 Page: 33 Date Filed: 12/30/2021
of pretrial defendants between 2010 and 2016, only to have the agreement col-
lapse over budget disputes and performance concerns. 5 The court then turned to
Indeed, this is not the first case to arise from this misplaced reliance on
was filed in the Middle District of Louisiana against Rehabilitation Home In-
fendants in the 19th Judicial District Court, among others. See Ayo v. Dunn, No.
3:17-cv-526 (M.D. La. filed Aug. 7, 2017). The suit alleged that Judge Trudy
White of the 19th Judicial District Court was a close political ally of—and ben-
eficiary of campaign donations from—RHI’s CEO, Dunn, and that Judge White
allowed only RHI to provide pretrial supervision services in her courtroom. The
plaintiffs in Ayo did not raise a due process conflict-of-interest claim as plaintiffs
here do, instead relying on RICO, Fourth Amendment seizure, and state con-
tract claims. Nonetheless, the case is relevant in its demonstration of the preva-
5
See, e.g., Matt Sledge, In New Orleans, Ankle Monitors, Fees, Donations to
Judge Raise Concerns, Watchdog Says, THE ADVOCATE (May 15, 2019), available at
https://www.nola.com/news/courts/article_e013fdc1-56a7-5f2e-9813-
fc969d45c17b.html.
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Case: 21-30620 Document: 00516150111 Page: 34 Date Filed: 12/30/2021
That is why this case is so important: Plaintiffs raise serious questions of sys-
temic violations of Constitutional rights, yet the trial court cut Appellants off at
udice. At a minimum, given this Court’s precedent and the purpose of § 1983,
CONCLUSION
In sum, in cases like this one, where the plaintiff has plausibly alleged an
clear “how any plaintiff, including a civil rights plaintiff, is supposed to allege
with specificity prior to discovery acts to which he or she personally was not
exposed, but which provide evidence necessary to sustain the plaintiff's claim.”
Means v. Chicago, 535 F. Supp. 455, 460 (N.D. Ill. 1982). Thus, to give sufficient
attention to § 1983’s remedial purpose, the RSMJC respectfully submits that this
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Case: 21-30620 Document: 00516150111 Page: 35 Date Filed: 12/30/2021
SEAN H. SUBER
KATHERINE L. KYMAN
TYREE M. PETTY -W ILLIAMS
W INSTON & STRAWN LLP
35 W. W ACKER DRIVE
CHICAGO, IL 60601
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Case: 21-30620 Document: 00516150111 Page: 36 Date Filed: 12/30/2021
CERTIFICATE OF COMPLIANCE
Counsel for amicus curiae certifies that this brief complies with Rules
it contains 6,141 words, based on the “Word Count” feature of Microsoft Word
2016. As required by Rule 32(a)(7)(B)(iii), this word count does not include the
thorities, and Certificates of Counsel. Counsel also certifies that this document
complies with Rules 32(a)(5) and (a)(6) because it has been prepared in a pro-
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Case: 21-30620 Document: 00516150111 Page: 37 Date Filed: 12/30/2021
CERTIFICATE OF SERVICE
I electronically filed the foregoing with the Clerk of Court for the United
States Court of Appeals for the Fifth Circuit on December 30, 2021, by using the
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