THE
Case No. 3:20-cv-00103
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
Judge Aleta A. Trauger
MEMORANDUM
The Nashville Community Bail Fund (“NCBF“) has filed a Motion for Preliminary Injunction (Docket No. 3), to which Howard Gentry, in his official capacity as
I. BACKGROUND
A. Structure of Pretrial Release and Bail in Tennessee
1. State and Federal Requirements. The State of Tennessee, like the federal government and the governments of its sister states, routinely jails individuals who have been charged with, but not convicted of, crimes, pursuant to a common practice known as “pretrial detention.” As the state‘s Supreme Court has observed, the constitutional permissibility of pretrial detention, as a general matter, is widely accepted, and the practice itself dates back to before this nation‘s founding, having been a feature of the pre-constitutional English courts from which early U.S. courts borrowed many of their organizing principles. State v. Burgins, 464 S.W.3d 298, 303 (Tenn. 2015). Also dating back to these pre-constitutional courts and surviving into the American experience, however, is the admonition that the government‘s right to pretrial detention is not absolute. Id. For example, under the
Although the
Because the federal Constitution only permits the amount of bail necessary to ensure the defendant‘s future appearance in court, Tennessee courts are required to
The conditions that may be imposed include:
- [r]eleas[ing] the defendant into the care of some qualified person or organization responsible for supervising the defendant and assisting the defendant in appearing in court . . . ;
- [i]mpos[ing] reasonable restrictions on the activities, movements, associations and residences of the defendant; and/or
- [i]mpos[ing] any other reasonable restriction designed to assure the defendant‘s appearance, including, but not limited to, the deposit of bail pursuant to § 40-11-117.
If the court determines that it will set monetary bail, it must then determine the amount to be required, based on a number of statutory factors listed in
Once monetary bail is set, the defendant can pay that monetary bail by either (1) paying the full amount himself, (2) hiring a surety, most typically in the form of a for-profit bail bondsman, or (3) using real property as collateral. See
2. Local Administrative and Judicial Responsibilities. As should be apparent, the state‘s system of pretrial detention, release, and surety reflects an overlay of both federal and state requirements. The list of governmental units involved, however, does not end there. “The judicial power of the state is vested in judges of the courts of general sessions, . . . , circuit courts, [and] criminal courts,” as well as other courts established by the state.
General sessions courts add another layer of complexity, because they are not denominated as state courts at all; rather, they are established and maintained on a county-by-county basis. See
Finally, the pretrial release-related work of each relevant court is divided among various personnel. According to NCBF, bail amounts, at least in Metro Nashville, are typically first set by judicial commissioners and may be reviewed by either a General Sessions judge or a Criminal Court judge. (Docket No. 1 ¶ 13.) The judges and judicial commissioners, however, do not directly administer the actual payment of bail amounts. Tennessee also relies on a system of clerks of court, whose duties are “to attend the court and perform all the clerical functions of the court.”
The clerk of the criminal or circuit court of a judicial district is empowered to act as the clerk for a General Sessions Court, despite the fact that General Sessions Courts, in Tennessee‘s system, are county, rather than state-level, courts.
B. Effect of a Failure to Obtain Pretrial Release
The first and most obvious effect of a defendant‘s failure to obtain pretrial release—either because conditions of release were wholly denied or because bail was set and he could not afford it—is the deprivation of the defendant‘s liberty. As the court has already discussed, the pretrial defendant‘s liberty interest, in and of itself, is entitled to substantial constitutional protection. However, focusing narrowly on the abstract concept of liberty, if anything, risks downplaying the full stakes of the pretrial detention determination in many cases. Whether a defendant facing prosecution is released to await trial not only affects his short-term freedom; there is evidence suggesting that it affects the course of his entire criminal case and, by extension, potentially the course of his life. NCBF has provided a July 2016 study of thousands of misdemeanor cases in Harris County, Texas, showing that, controlling for a number of variables, defendants who remained in pretrial detention were 25% more likely to plead guilty than similarly situated defendants who were released and were 43% more likely to receive jail time. When sentenced, the detained defendants’ sentences were, on average, more than twice as long. (Docket No. 4-13 at 2, 19–21.) There may, of course, be many ways that one could take issue with that study. Based on the current record before the court, however, the evidence, at the very least, broadly supports its conclusions.
It is, moreover, not difficult to imagine why detention would have a negative effect on an individual‘s criminal defense. The government has much greater leverage over an incarcerated person than a free person. A person on pretrial release can continue to work, make money, and take part in family life, while a detained person may lose his job or even custody of his children. A person on pretrial release can also participate more directly and comprehensively in his defense. He is significantly less likely to be under the intense surveillance present in jailhouses, particularly regarding conversations with the outside world. He can seek continuances—for example, to investigate exculpatory or mitigating evidence—without each continuance meaning more time in jail. Finally, he will not be subject to the daily psychological toll of incarceration and can make decisions about how to proceed with his case surrounded by family and friends. In turn, pretrial release deprives the government of the bargaining chip that accepting a quick deal may get the defendant out of confinement sooner. That enticement is likely to be especially strong in misdemeanor and minor felony cases, which are likely to carry a short sentence after conviction but which can have long-ranging effects on the defendant‘s life, due to their civil and criminal collateral consequences.
Pretrial detention is an established part of the U.S. criminal justice system, and NCBF does not, at least in this litigation, dispute that it is at least sometimes appropriate. Some defendants, therefore, cannot avoid the disadvantages associated with waiting for trial from a jail cell rather than their homes. As NCBF points out, however, once a defendant has been assigned a bail amount, a determination has already been made that, at least as long as the right conditions are met, pretrial release is appropriate for him. In such a situation, the defendant who can afford to make bail will face a decidedly different, and likely more forgiving, path forward for his case than a defendant who is charged with the same crime and received the same release conditions, but who cannot afford his own release.
1. NCBF‘s Charitable Model. In 2016, individuals concerned about the role of money bail in Metro courts founded NCBF as a charitable fund for the purpose of “free[ing] low-income persons from jail and work[ing] to end wealth-based pretrial detention.” (Docket No. 4-1 ¶ 4.) The NCBF posts cash bail on behalf of selected pretrial detainees—not as a for-profit bonding company, but as part of its mission to combat differences in the pretrial detention process based on wealth. NCBF, like a for-profit company, takes steps to communicate with the defendants whose releases it has secured, to ensure that they return to court as required. (Id. ¶¶ 4, 8.)
In order to fund its efforts, NCBF relies on what its current manager, Rahim Buford, refers to as “a revolving fund of donated money.” (Id. ¶ 4.) NCBF posts bond for a pretrial detainee and, when the detainee‘s case is completed, NCBF accepts the refund of its surety, which it puts back into its budget for posting bond for another pretrial detainee. Accordingly, a single donation of $1,000, for example, can be used over and over again to secure pretrial release for a series of defendants with $1,000 bail amounts. (Id.) Since its founding, NCBF has posted bail in over 1,000 cases, representing a total of over $2.3 million in bail. That $2.3 million, however, consists of a much smaller number of individual dollars, cycled through NCBF‘s system repeatedly. (Id. ¶ 10.)
In order for NCBF‘s revolving fiscal model to be sustainable, NCBF must be able to obtain a refund of at least a substantial portion of the money it uses to post bail. Tennessee, however, has a statute—
2. NCBF‘s Exemption from Garnishment. According to Buford, the Twentieth Judicial District, in recognition of this problem, granted NCBF what he characterizes as “an exemption to [Rule 10(B)],” not requiring that the amounts posted by NCBF to be applied to fines, costs, taxes, or restitution. (Docket No. 4-1 ¶ 19.) This exemption was apparently formalized in an en banc Order of the Criminal Court in April of 2016. (See Docket No. 4-4 at 1.)
On May 6, 2019, however, the Criminal Court released a second en banc Order, rescinding the exemption. (Id.) The court characterized the prior Order as having “effectively exempted the NCBF from the statutory requirement under Tennessee Code Annotated § 40-11-121 and from the
Shortly after that Order was entered, the Criminal Court stayed the Order‘s operation at NCBF‘s request, to allow for motions challenging the end of the exemption. NCBF filed a petition to amend the May 2019 Order and reinstate the policy of the April 2016 Order. (Docket Nos. 4-6 to -8.) The Criminal Court, sitting en banc, heard oral argument regarding the pending change on July 18, 2019. (See Docket No. 4-5 at 1.) On August 29, 2019, the court entered an en banc Order denying NCBF‘s petition. (Id.) The court “reaffirm[ed]” its earlier rationale for ending the exemption. (Id. at 2.) It added, however:
[T]he Court notes that in no way does it intend for this Order to force the NCBF to shut down. As the Court stated at the hearing on July 18, 2019, this Court agrees with the NCBF‘s contention that the work in which they are engaged is a noble service to the community. The Court continually strives to ensure that the administration of the criminal justice system is fair and equitable for all parties, and is willing to work with the NCBF or any other organization to that end. However, while the Court hopes that the NCBF continues its work, for the aforementioned reasons, the Court is of the opinion that cash bonds posted by the NCBF should not automatically be exempted from being used to satisfy the fines, costs, or restitution that other parties posting cash bonds are generally required to satisfy. Of course, a defendant on a bond made by the NCBF, just like any other defendant, may still petition the appropriate court for waiver of any costs or fines based upon the defendant‘s indigency upon entry of any judgment against them. Bond funds paid by the NCBF would still be refunded if all costs, fines, and fees were waived by that court.
(Id. at 2–3.)
Bail amounts are paid through the Clerk of the Criminal Court—that is, through the office that defendant Gentry oversees and represents. According to Buford, the office will no longer accept NCBF‘s payments unless the NCBF representative making the payment signs the office‘s notification form acknowledging that the bail amounts will be applied to fines, fees, costs, taxes, or restitution. (Docket No. 4-1 ¶ 22.) Officials from Gentry‘s office have informed NCBF that the garnishments are applied automatically by the clerk‘s office, with no hearing devoted to the garnishments. Rather, when NCBF or another bail depositor seeks a refund of its surety at the end of the defendant‘s case, the clerk provides only the amount that exists
Buford states that, now that NCBF has lost its exemption from garnishment, it “stands to rapidly lose its revolving fund.” (Id. ¶ 28.) It has reduced its operations and instituted new caps both on the amount it will post in any particular case and the total amount it will post in any given month. (Id. ¶¶ 29–30.) He estimates that NCBF has rejected at least thirty requests from defendants for bail that it otherwise would have approved if the Criminal Court had continued its policies unchanged. (Id. ¶ 31.) He estimates that NCBF is likely to lose “half of all its deposits subject to garnishment” going forward. (Id. ¶ 34.)
D. This Litigation
On February 5, 2020, NCBF filed a Complaint for Injunctive and Declaratory Relief, in which it named, as the sole defendant, “Hon. Howard Gentry, Criminal Court Clerk, in his official capacity.” (Docket No. 1 at 1.) NCBF pleaded three causes of action under
Pursuant to
NCBF has filed a Declaration by one of its attorneys, C. Dawn Deaner, stating that she spoke with Gross by telephone on February 3, 2020, and informed her that NCBF would be suing Gentry in his official capacity as Clerk of the Criminal Court. Deaner asked Gross if Gross could accept service on Gentry‘s behalf, and Gross responded that she would have to get back to Deaner on that matter. Deaner and Gross spoke again later that day, at which time Gross, according to Deaner, “informed me that either she or someone else with her office had spoken directly with Mr. Gentry, and he had agreed to her Office accepting service of this lawsuit on his behalf. As a result, Ms. Gross informed me that her Office would accept service of the lawsuit on behalf of Mr. Gentry.” (Docket No. 21 ¶¶ 3–4.) Finally, Deaner states that, to avoid any further delay, NCBF served Gentry personally on March 12, 2020. (Id. ¶ 8; see Docket No. 21-1.)
On February 20, 2020, Gentry filed a Response opposing the Motion for Preliminary Injunction. (Docket No. 15.) The Response was filed and signed by Allison L. Bussell of the Department of Law of the Metropolitan Government of Nashville and Davidson County (“Metro Legal“), and also listed Metro Director of Law Robert E. Cooper, Jr., and Metro Legal attorney John W. Ayers as representing Gentry.
On February 24, 2020, NCBF filed a Reply. (Docket No. 26.) In its Reply, NCBF argues that its suit is permissible regardless of whether Gentry was acting, at the relevant times, as an agent of the State of Tennessee or in a more local capacity. NCBF argues that, as the government official in charge of administering the challenged program, Gentry, in his official capacity, is an appropriate defendant—with the state/local distinction relevant only to whether NCBF must rely on Ex parte Young, 209 U.S. 123 (1908), to obtain relief regardless of state sovereign immunity. (Id. at 2.)
On February 27, 2020, Gentry filed a Motion to Dismiss, asking the court to dismiss NCBF‘s claims, “insofar as the Court construes the claims as proceeding against Mr. Gentry in his capacity as a Metropolitan Government official.” (Docket No. 17 at 1.) In support of the motion, Gentry reiterates his argument that he enforces Rule 10(B) “on behalf of the State of Tennessee” and contends that, “if this case is proceeding against Mr. Gentry in his official capacity as a state agent, Plaintiff must serve the Attorney General, which [it has] not done.” (Docket No. 18 at 7–8.) NCBF filed a Response, reiterating its position that Gentry is an appropriate defendant and pointing out that Gentry cited no authority for his proposition that NCBF must serve the Tennessee Attorney General. (Docket No. 19.) On March 10, 2020, Gentry filed a Reply, arguing that “[t]he local- or state-capacity distinction is relevant to service of process because Mr. Gentry was served only via the Metropolitan Department of Law, which has no authority to accept service of process for state officials.” (Docket No. 20 at 1 (citing
II. LEGAL STANDARD
A. Motion for Preliminary Injunction
“Four factors determine when a court should grant a preliminary injunction: (1) whether the party moving for the injunction is facing immediate, irreparable harm, (2) the likelihood that the movant will succeed on the merits, (3) the balance of the equities, and (4) the public interest.” D.T. v. Sumner Cty. Sch., 942 F.3d 324 (6th Cir. 2019) (citing Benisek v. Lamone, 138 S. Ct. 1942, 1943-44 (2018); Wright & Miller, 11A Fed. Prac. & Proc. Civ. § 2948 (3d ed. & Supp. 2019)). The district court must “weigh the strength of the four factors against one another,” with the qualification that irreparable harm is an “indispensable” requirement, without which there is “no need to grant relief now as opposed to at the end of the lawsuit.” Id. (citing Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). “Although no one factor is [otherwise] controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat‘l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th Cir. 2000) (citing Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997)).
B. Rule 12(b)(6) Motion to Dismiss
In deciding a motion to dismiss for failure to state a claim under
The complaint‘s allegations, however, “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679; Twombly, 550 U.S. at 556.
III. ANALYSIS
The parties’ briefing raises four closely related, but distinct, issues: (1) whether the Tennessee Attorney General should have been given notice of this suit; (2) whether Gentry was served under the correct method in light of the nature of his office; (3) whether Gentry is an appropriate defendant in this case, rather than some other, presumably state-level official; and (4) whether NCBF has established that it is entitled to a preliminary injunction. The court will turn to each of these issues in order.
A. Notice to the State of Tennessee
In his briefing, Gentry characterizes his roles as divisible between two capacities: that of “an elected official for the Metropolitan Government of Nashville and Davidson County“; or, in the alternative, that of “an agent of the State of Tennessee.” (Docket No. 18 at 1.) Neither characterization, however, fully captures the nature of his authority. As a Clerk of Court, his power derives from the Criminal Court of the Twentieth Judicial District the “clerical functions” that are delegated to his office by statute.
On the other hand, however, the court cannot assume, merely because the courts of the Twentieth Judicial District were created by the state and exercise authority granted by the state, that those courts are synonymous with the state for Rule 5.1 purposes. After all, every type of local government—whether a judicial district, school district, utility district, municipality, county, hospital authority, or something else—“is but an emanation from the state.” Maury Cty. ex rel. Maury Reg‘l Hosp. v. Tenn. State Bd. of Equalization, 117 S.W.3d 779, 787 (Tenn. Ct. App. 2003) (quoting State ex rel. Bell v. Cummings, 172 S.W. 290, 290 (Tenn. 1914)); see also S. Constructors, Inc. v. Loudon Cty. Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001) (observing that local governments “derive the whole of their authority solely from the General Assembly“) (quoting Mayor & City Council v. Linck, 80 Tenn. (12 Lea) 499 (1883)). That Gentry‘s power comes from the state only puts him in the same boat as every other arguably local official.
Fortunately, there is established caselaw for assessing whether a state-created body is an extension of the state or, instead, an entity that, although it was created by the state, is distinct in the eyes of the law. The issue most often comes up in the context of sovereign immunity, pursuant to which “arms of the state” are entitled to immunity, while “political subdivisions” are not. See Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005) (en banc). That inquiry calls on the court to engage in a multi-factor balancing test, considering “(1) the State‘s
Applying that multi-factor test, the Sixth Circuit has already held, in a published decision, that a Michigan state court is an arm of the state, not a political subdivision. See Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 764 (6th Cir. 2010). In support of that ruling, the Sixth Circuit cited Michigan‘s “unified state judicial system . . . under the control and administration of the Michigan Supreme Court” and the “considerable state control over judicial officers’ appointments” and removal. Id. at 762–63. Although the courts of Tennessee and Michigan are not identical, a similar analysis can be applied here. The Tennessee Supreme Court, like the Michigan Supreme Court, has emphasized its inherent power to oversee the courts of the state, see State v. Mallard, 40 S.W.3d 473, 480 (Tenn. 2001), and its “general supervisory control over all the inferior courts of the state” is enshrined in statute.5
court vacancies are filled by a state-level, not a local, process. See
Admittedly, the fact that a Tennessee judicial district has a limited geographic jurisdiction makes it look, from at least one angle, more like a local government than a state agency. Indeed, a different area of Tennessee law defines “political subdivision” to mean “any city, town, municipality, county, including any county having a metropolitan form of government, or other legally authorized local governmental entity with jurisdictional boundaries.”
The court also notes that at least some aspects of Gentry‘s duties—namely those involving General Sessions courts, which are operated at the county level—are more closely related to a political subdivision than the powers at issue in Pucci. A conclusion that some of Gentry‘s duties involve a political subdivision, however, would not preclude a holding that he is, in his capacity as Clerk of the Criminal Court, a state officer or employee. The relevant exceptions to the notification obligations of the court and the plaintiff focus only on whether Gentry is a state employee,
Because Pucci was not explicitly about
B. Adequacy of Service
In his partial Motion to Dismiss, Gentry argues that service to the Clerk‘s Office was ineffective because it was not performed through the state‘s Attorney General. NCBF responds that Metro Legal affirmatively accepted service on Gentry‘s behalf and indeed does not appear to dispute that it was authorized to do so in at least a limited manner. It argues that Gentry‘s distinction between his state and local duties is not relevant to the issue of service.
Because Gentry is sued in his official capacity, the suit is “equivalent of a suit against the governmental entity” he represents—that is, the Clerk‘s Office. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). As the court has already held in this opinion, that office is an arm of the state of Tennessee for the purposes of the
Tennessee law requires service on the State of Tennessee or any “agency thereof” to be performed “by delivering a copy of the summons and of the complaint to the attorney general of the state or to any assistant attorney general.”
At least some courts have held that service is sufficient under
The court is guided by the reminder that ”
Although Cynthia Gross was not one of Gentry‘s immediate employees when she accepted service on his behalf, she was still acting as an agent of the Clerk‘s Office and represented that she could accept service on behalf of that office. Indeed, even now, Metro Legal does not appear to dispute that it was, in fact, authorized to—and did—accept service on behalf of Gentry in his official capacity. Instead, it merely seeks to slice and dice that official capacity into state and local components.
Gentry is correct that the same person may require service in multiple different ways based on his different capacities, and service in one such way is not necessarily sufficient for another. Specifically, the Sixth Circuit has held that, when an individual is sued in both his individual and his official capacity, the plaintiff must properly effect service in both capacities. See King v. Taylor, 694 F.3d 650, 657 (6th Cir. 2012). That rule, however, is merely a natural extension of
Finally, the court notes that, even if it had not construed
C. Appropriateness of Gentry as a Defendant
Gentry argues next that the court should dismiss the claims against him, at least in part—as well as refrain from granting a preliminary injunction—because he is merely applying a state policy that he is required to apply, namely,
Gentry‘s attempt to recast the same argument as about whether NCBF has challenged a “policy or custom” of his office is similarly misguided. Gentry is correct that, in order to establish that a governmental entity is liable for relief under
D. Motion to Dismiss
The preceding discussion is dispositive of Gentry‘s Motion to Dismiss. Gentry does not ask the court to dismiss the claims against him, in his official capacity, altogether, but only to dismiss them “insofar as the Court construes the claims as proceeding against Mr. Gentry in his capacity as a Metropolitan Government official.” (Docket No. 17 at 1.) Gentry, though, has only been sued in one capacity—his capacity as the Clerk of the Criminal Court of the Twentieth Judicial District. In that capacity, he is plainly an appropriate defendant. Gentry is correct that, other than the fact that Metro operates the underlying General Sessions Court, Metro government‘s involvement in these matters appears to be limited, which, the court gathers, may have implications regarding whether Metro Legal will continue to represent him. The issue of Gentry‘s representation, however, is for Gentry to resolve, not the court, and it certainly does not call for any partial dismissal of the appropriately filed and pleaded claims against him and his office. The motion to dismiss will be denied.
E. Motion for Preliminary Injunction
1. Likelihood of Success on the Merits. The court finds itself in the unfortunate
If, however, Metro Legal is not responding on behalf of Gentry as a state official, then Gentry should have come to the court with other lawyers who can. Instead, it seems that no one is representing the state in this matter so far, and the Clerk‘s Office, as an arm of the State, has effectively failed to respond to NCBF‘s motion at all. The court can guess that that failure is because Gentry-the-state-official was hoping to rest on the argument that only Gentry-the-local-official had been served. Of course, Gentry could have come to the court with lawyers empowered to represent him in his state capacity and entered a special appearance disputing the adequacy of service, but he did not.8 The court, moreover, has rejected the argument that service on Gentry in his official capacity was somehow partial or inadequate. The Motion for Preliminary Injunction is ripe, and there has been no meaningful opposition to it on all but the most limited grounds.
Based on the record currently available, the court concludes that NCBF has established at least a sufficient likelihood of success to support the granting of a preliminary injunction, if the other factors, on balance, support doing so. NCBF bases its Eighth Amendment challenge on the principle, endorsed by the Supreme Court in Cohen v. United States, 82 S. Ct. 526, 529 (1962) (Douglas, J., in chambers9), that bail that is conditioned on the payment of a fine is “‘excessive’ in the sense of the Eighth Amendment because it would be used to serve a purpose for which bail was not intended.” (Id. at 529.) Admittedly, Cohen appears to have had a fairly limited effect on the Supreme Court‘s ongoing jurisprudence, and its posture—involving bail pending appeal—was somewhat different from what NCBF‘s clients face. But see United States v. Rose, 791 F.2d 1477, 1480 (11th Cir. 1986) (“We have no doubt that the addition of any condition to an appearance bond to the effect that it shall be retained by the clerk to pay any fine that may subsequently be levied against the defendant after the criminal trial is over is for a purpose other than that for which bail is required to be given under the Eighth Amendment. Such provision is therefore excessive and is in violation of the Constitution.“); United States v. Powell, 639 F.2d 224, 225 (5th Cir. 1981) (“[W]e [have] rejected the government‘s argument that the fine should be paid out of bail money because the United States, as a creditor, has the same right as other creditors to apply a debtor‘s money in its possession to extinguish debts due.“); cf. State ex rel. Baker v. Troutman, 553 N.E.2d 1053, 1056 (Ohio 1990) (adopting similar reasoning under the Ohio Constitution). The mere fact that Cohen has not given rise to much litigation at the Supreme Court level, however, does not mean that its principles can or should be disregarded, particularly given that pretrial release conditions are rarely the type of determination that makes it to the Supreme Court.
NCBF has also advanced a plausible argument that automatically requiring garnishment in every case is not sufficiently narrowly tailored as a policy to survive United States v. Salerno, 481 U.S. 739 (1987), which requires a heightened level of scrutiny for the review of pretrial release conditions. Money bail, in and of itself, can survive that heightened scrutiny, as long as it is tailored to the state‘s compelling interest in ensuring that a defendant returns to court. Requiring a defendant to submit to post-conviction bail garnishment in order to secure his pretrial release, however, has no connection to the strong interest in ensuring his return. Rather, it serves only the significantly lesser interest of enabling the government‘s future collections. See Mem‘l Hosp. v. Maricopa Cty., 415 U.S. 250, 263 (1974) (rejecting fiscal savings as a sufficient basis for justifying constitutionally suspect policy). NCBF argues that, by conditioning release on acceptance of a particular collection mechanism, Tennessee imposes conditions of release that are not justified by a sufficiently strong government purpose. While this argument is an extension of Salerno, the court finds, at this stage, that it is, at the very least, a coherent, rational, and persuasive one.
Although NCBF‘s ultimate success in this case is not a certainty, a preliminary injunction requires, at most, that a plaintiff be “likely to succeed on the merits.” Fowler v. Benson, 924 F.3d 247, 256 (6th Cir. 2019) (emphasis added).10 NCBF has set
2. Irreparable Injury to NCBF and the Population it Serves. NCBF argues that it is likely, if not certain, to suffer irreparable injury if a preliminary injunction is not granted, because the Clerk‘s Office‘s garnishments threaten the viability of NCBF‘s funding model and its ability to pursue its charitable mission. Although the Criminal Court, in its final en banc Order, offered some assurances that NCBF might be able to mitigate its damages by seeking waivers of some fines, costs, taxes, and restitution, the evidence before the court shows that this avenue, so far, has not significantly relieved the threat to NCBF‘s fiscal sustainability. Admittedly, courts have held that “[m]onetary or economic harm by itself” typically “does not constitute irreparable harm.” Ratcliff v. Moore, 614 F. Supp. 2d 880, 898 (S.D. Ohio 2009) (citing State of Ohio ex rel. Celebrezze v. N.R.C., 812 F.2d 288, 290 (6th Cir. 1987)). The harm that NCBF has raised, however, is not merely a loss on a balance sheet; it is a threat to the entire model of the group‘s operation. Every charitable organization needs resources, but, for NCBF, having a churn of money to disburse and draw back is the very essence of its operation.
The risk of irreparable harm to the defendants whom NCBF serves is all the more apparent. Not only do those defendants stand to potentially be deprived of their liberty, despite their eligibility for pretrial release in every way except their ability to amass enough funds, but they are likely, as the court has discussed, to face overall worse outcomes in their criminal cases, which could have negative effects on them in both the short and the long term. An inability to obtain pretrial release may lead to a plea, which may lead to serious collateral consequences, even years into the future.
Finally, the court notes that a finding of at least some irreparable harm is mandated any time a plaintiff‘s constitutional rights are violated, because the violation of a person‘s constitutional rights is, in and of itself, irreparable. Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). As the court has discussed, NCBF has not established with certainty that either its or anyone else‘s rights have been violated or will be violated if the Clerk‘s Office‘s garnishments are allowed to continue. It has, however, established at least a substantial probability that that is the case. In light of both the concrete injuries and constitutional considerations at stake, the risk of harm to NCBF and the defendants it assists weighs strongly in favor of granting the preliminary injunction.
3. Harm to the Clerk‘s Office/Public Interest. The third and fourth factors of the preliminary injunction analysis—harm to others and the public interest—“merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). With that in mind, the court finds that the risk of harm to the Clerk‘s Office if a preliminary injunction is entered is minimal, while the public interest strongly
The public interest in allowing NCBF to continue to pursue its mission, in contrast, is great. Indeed, even the Criminal Court judges who adopted the rule being challenged conceded as much in their final en banc Order. Moreover, as always, “the public interest is served by preventing the violation of constitutional rights.” Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004). The court therefore concludes that these factors, as well, strongly favor a granting of the preliminary injunction.
4. Balancing of Factors. The court reiterates that it would have preferred to rule on this motion with more thorough briefing from Gentry and the Clerk‘s Office.11 Nevertheless, NCBF has met its burden of establishing facts in support of its motion, and both the Rules of Procedure and the interests of justice support addressing that motion now. Because all of the factors governing the court‘s consideration favor granting the preliminary injunction, some of them quite strongly, the motion will be granted.
The court, however, will limit the relief sought in one significant regard. NCBF asks the court to enjoin Gentry‘s garnishment policies with regard to all defendants and third-party sureties, including those not party to this case. If, in fact, NCBF is able to ultimately demonstrate, conclusively, that the garnishment policy is unconstitutional, then a full cessation of the policy would no doubt be warranted. At this early stage, however, the evidence before the court about hardship and the public interest is overwhelmingly focused on NCBF itself. The court, accordingly, will limit its preliminary injunction to cases in which NCBF posted or will post bond.
For the foregoing reasons, the NCBF‘s Motion for Preliminary Injunction (Docket No. 3) will be granted in part and denied in part, and Gentry‘s Motion to Dismiss (Docket No. 17) will be denied.
An appropriate order will enter.
ALETA A. TRAUGER
United States District Judge
Notes
- Supervise, direct and control all of the law work of the metropolitan government, except with respect to the electric power board, which, having its own general counsel, is excepted from the provisions of this chapter.
- Furnish legal advice to the mayor, to the council and to all officers, departments, boards and commissions concerning any matters arising in connection with the exercise of their official powers or performance of their official duties.
- Represent the metropolitan government in all litigation.
- Collect by suit or otherwise all debts, taxes and accounts due the metropolitan government which shall be placed with it for collection by any officer, department, board or commission.
- Prepare or approve all contracts, bonds, deeds, leases or other instruments in writing in which the metropolitan government is concerned.
- Prepare or assist in preparing for introduction any proposed ordinance upon request of the mayor or any member of the council.
- Codify and cause to be published in convenient book form once in every five (5) years . . . .
- Perform such other duties as may be assigned to it by ordinance.