by David M. Reutter

An Alabama federal district court allowed portions of a lawsuit to move forward that sought damages from the City of Montgomery (the City) and Judicial Correction Services, Inc. (JCS). The suit alleged due process and equal protection violations that stemmed from a privatized probation system that jailed indigent traffic offenders for failing to pay fines without inquiring into their ability to pay.

The court’s July 7, 2020, order denied in part and granted in part the defendants’ motions for summary judgment. From June 2009 to June 2014, the Municipal Court in Montgomery contracted with JCS to supervise misdemeanor probation. When a misdemeanant could not pay a fine, the court placed them on probation until the fee was paid.

JCS operated on an offender paid model. It charged probationers $40 per month plus a $10 one-time fee at the onset of probation. JCS’s services “primarily” consisted of facilitating extended payment plans so it could continue to accrue monthly fees under more onerous conditions. For probationers who could not keep up with payments, JCS required them to report more often, sometimes several times a week. Over the contract’s duration, JCS collected over $15.5 million in fees and $14.6 million in fines for the City.

When a probationer could not make payments or missed payments, JCS would petition the court to revoke probation. The Municipal Court would typically commute the fines into jail time at the rate of $50 per day. At the revocation and commutation hearing, the Municipal Court routinely failed to inquire as to whether a defendant could pay the fine before imposing a jail sentence. It also did not inform defendants they could not be jailed if they could not pay the fine. At least 217 defendants who JCS listed as unemployed, disabled, or receiving Supplemental Security Income benefits were jailed after a revocation of probation.

Branch D. Kloess was hired by the City to comply with state law that requires counsel be provided to indigent defendants. He was paid an hourly rate, but his assistance was infrequent and inadequate. In 2012, Kloess handled 16,436 cases over 127 days in court. He failed to present evidence that he asked the Municipal Court to consider his poor clients’ indigency status, and he could not recall filing a motion for any indigency hearings.

Aldaress Carter was arrested in May 2011 on outstanding warrants for failing to appear for several traffic tickets. He spent a night in jail and was placed on probation because he could not afford to pay the fines. The order required him to pay $140 monthly. He made the first full payment, but was unable to pay the full amount thereafter. Over 19 months, he paid $833, of which JCS allocated $460 towards the fines and kept the rest in fees.

After missing numerous appointments and not making a payment, in November 2012, JCS moved to revoke his probation. He was arrested and jailed. He spent four days in jail, which took $200 off his fines, and was released after his mother borrowed enough money to pay his remaining fines. In 2015, Carter filed his lawsuit. After an amendment, the lawsuit named the City, Kloess, and JCS as defendants and contained 15 causes of action.

In ruling on the defendants’ motions for summary judgment, the court found Carter’s unjust enrichment claim against the City must fail because it would require the court to review a state court judgment in violation of Rooker-Feldman doctrine. Likewise, while the majority of Carter’s 42 U.S.C. § 1983 claims could proceed, the claim to recover probation fees from JCS was barred because it attacked the probation order. Rooker-Feldman, however, did not bar Carter’s false imprisonment claim.

The court also found Heck v. Humphrey, 512 U.S. 477 (1994) did not bar Carter’s § 1983 claims because his success in a claim would not “necessarily imply that the defendant’s conviction was unlawful.” Rather than challenge his traffic offenses, Carter challenged the procedures used to impose probation and jail him.

The court also found that Carter presented sufficient evidence to establish that “JCS had an established custom of asking the Municipal Court to revoke probation when it knew that a probationer had not willfully failed to pay fines and fees.” JCS, therefore, could be subject to liability for “acting in the place of a municipality.”

The City could also be found liable for JCS’s conduct “on or after July 16, 2012,” but not before, because it became aware of litigation concerning JCS’s policies on that date and failed to intervene to protect Carter’s rights. The City was also found susceptible to liability because a jury could conclude “it was on notice of the inadequacy of Municipal Court public defense,” and it “was deliberately indifferent to the Sixth Amendment violations.” It found JCS and the City could be liable under a theory of municipal liability.

It also found Kloess could be held liable in his individual capacity because he “should have foreseen that his total absence from the court and failure to present evidence of indigency would deprive Mr. Carter of his rights to counsel and due process.”

It was concluded that the defendants could be held liable for violating Carter’s rights under Bearden v. Georgia, 461 U.S. 660 (1983), which held a court violates the Due Process and Equal Protection Clauses if it fails to inquire into whether a probationer has made a bona fide effort to pay a fine before revoking probation or if it fails to consider alternative punishments to probation between immediate payment of a fine or a fixed jail term. The City and Kloess could both be liable for denying Carter the right to adequate counsel. JCS could be found liable on the false imprisonment claim.

Finally, the court held the defendants were not entitled to quasi-judicial immunity or qualified immunity. It denied defendants’ motion for summary judgment motions in part and granted them in part. See: Carter v. City of Montgomery, Case No. 2:15-cv-555-RCL, U.S.D.C. (M.D. Ala.). 

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