Farella v. District Judge A.J. Anglin

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

ABIGAIL FARELLA and LOGAN W. MURPHY,

on behalf of themselves and all others

similarly situated PLAINTIFFS

V. CASE NO. 5:22-CV-5121

DISTRICT JUDGE A.J. ANGLIN,

GREGG PARISH, and JAY SAXTON DEFENDANTS

MEMORANDUM OPINION AND ORDER

Contents

I. BACKGROUND ....................................................................................................... 3

A. Plaintiffs’ Arrest & Pretrial Incarceration .............................................................. 3

B. Arkansas Criminal Procedure .............................................................................. 5

II. MOOTNESS ............................................................................................................. 7

III. SOVEREIGN IMMUNITY ....................................................................................... 10

A. Defendant Saxton ............................................................................................. 11

B. Defendant Anglin ............................................................................................... 13

IV. Abstention ............................................................................................................. 19

A. Colorado River Abstention ................................................................................ 21

B. Younger Abstention ........................................................................................... 26

C. Brillhart Abstention ............................................................................................ 24

V. FAILURE TO STATE A CLAIM ............................................................................. 28

A. Legal Standard .................................................................................................. 28

B. Analysis ............................................................................................................. 29

VI. JOINDER ............................................................................................................... 36

VII. CONCLUSION ....................................................................................................... 39

Plaintiffs Abigail Farella and Logan W. Murphy, on behalf of themselves and others

similarly situated, sue Defendants District Judge A.J. Anglin, Executive Director of

Arkansas Public Defender Commission Greg Parrish, and Chief Benton County Public

Defender Jay Saxton. Ms. Farella and Mr. Murphy allege that indigent criminal defendants

possess a constitutional right to legal representation during the judicial officer’s

determination of bail and Defendants’ failure to timely appoint counsel violates the Sixth

and Fourteenth Amendment. See Doc. 34. Plaintiffs seek injunctive and declaratory relief

that would, in effect, require defense counsel’s presence and participation in the bail

determination for indigent defendants.

Now before the Court are Separate Defendants Parrish and Saxton’s (“Public

Defender Defendants”) Motion to Dismiss (Doc. 61) and Separate Defendant Anglin’s

Motion to Dismiss (Doc. 47).1 In support of dismissal, Defendants invoke sovereign

immunity and abstention, as well as allege that the Amended Complaint fails to state a

claim and omits indispensable parties.

For the below reasons, the Court DENIES Public Defender Defendants’ Motion to

Dismiss and DENIES Defendant Anglin’s Motion to Dismiss.

I. BACKGROUND

A. Plaintiffs’ Arrest & Pretrial Incarceration

On May 20, 2022, Bentonville Police Department officers arrested Plaintiff Abigail

Farella for felony possession of a controlled substance, misdemeanor possession of drug

1 The Court considered Public Defender Defendants’ Motion to Dismiss (Doc. 61),

Plaintiffs’ Response in Opposition (Doc. 70), and Public Defender Defendants’ Reply

(Doc. 73); and Separate Defendant Anglin’s Motion to Dismiss (Doc. 47) Plaintiffs’

Response in Opposition (Doc. 50), and Separate Defendant Anglin’s Reply (Doc. 54).

paraphernalia, and misdemeanor shoplifting. She was transported to the Benton County

Jail and placed in a cell. That same day, Bentonville officer Corporal Kevin Albert filed a

sworn probable cause affidavit and reported that the State joined him in requesting bail

be set at $2,500. Two days later, on May 22, Benton County District Court Judge Anglin

conducted an initial hearing pursuant to Arkansas Rule of Criminal Procedure 8.1. Judge

Anglin set Ms. Farella’s bail at $10,000 cash or corporate surety; scheduled

arraignment—Ms. Farella’s next court date—for June 27, 2022; and found Ms. Farella

indigent and appointed the public defender to represent her in subsequent proceedings.

Ms. Farella remained in jail until June 27, 2022, when Arkansas Circuit Court

Judge Brad Karren entered a diversion order. The State agreed to drop the charges

against Ms. Farella if she stayed out of trouble for the next 12 months. Judge Karren also

entered an order vacating Ms. Farella’s $10,000 bond and stating that “counsel for

Defendant and Deputy Prosecutor Sharon Nowlin have agreed that a written promise to

appear for future court dates is sufficient to assure Defendant’s appearance at future court

dates.”2

Bentonville Police arrested Plaintiff Logan W. Murphy on June 20, 2022, for felony

fleeing and misdemeanor reckless driving. Bentonville Police submitted a sworn probable

cause affidavit and reported that the State joined in requesting bail be set at $25,000. The

next day, Judge Anglin conducted a bail hearing with Mr. Murphy. He set bail at $40,000

cash or corporate surety; set arraignment—Mr. Murphy’s next court date—for July 25,

2 The Arkansas Judiciary makes court records publicly available through

https://caseinfo.arcourts.gov. The Court takes judicial notice of the state court docket

associated with Ms. Farella’s underlying criminal case, 04CR-22-1028, State v. Farella,

as well as the “Agreed Order” and the “Diversion Order-27-22; 6 MO REV HRG 12-13-22

@ 8:30AM” dated June 27, 2022, and filed to the docket the same day at 2:43 p.m.

2022; and found Mr. Murphy indigent and appointed the public defender to represent him

at future proceedings. It appears Mr. Murphy remained in jail through July 22, 2022, when

he posted bail.3

Although counsel was appointed during the initial appearance, the Amended

Complaint alleges that no attorney—prosecutor or defense counsel—was present during

either Ms. Farella’s or Mr. Murphy’s bail hearing.

B. Arkansas Criminal Procedure

Under Arkansas law, “[a]n arrested person who is not released by citation or by

other lawful manner shall be taken before a judicial officer without unnecessary delay.”

Ark. R. Crim. P. 8.1. This is the “first appearance,” sometimes referred to as an “8.1

hearing” or “Rule 8.1 hearing.”

Arkansas Rule of Criminal Procedure 8.3 governs what must occur during the

proceeding:

(a) Upon the first appearance of the defendant the judicial officer shall

inform him of the charge. The judicial officer shall also inform the defendant

that:

(i) he is not required to say anything, and that anything he says can be used

against him;

(ii) he has a right to counsel; and

(iii) he has a right to communicate with his counsel, his family, or his friends,

and that reasonable means will be provided for him to do so.

3 Likewise, the Court takes judicial notice of the state court docket associated with Mr.

Murphy’s underlying criminal case, 04CR-22-1247, State v. Murphy, as well as the “Court

Info Sheet, Order of Indigency, Spencer Bail Bond $40,000,” filed on September 6, 2022,

and the “Court Info Sheet, Order of Indigency, Spencer Bonding Services, Bail Bond

$40,000,” filed on September 16, 2022. Both documents contain the same bail bond form

for $40,000, dated July 22, 2022.

(b) No further steps in the proceedings other than pretrial release inquiry

may be taken until the defendant and his counsel have had an adequate

opportunity to confer, unless the defendant has intelligently waived his right

to counsel or has refused the assistance of counsel.

(c) The judicial officer, if unable to dispose of the case at the first

appearance, shall proceed to decide the question of the pretrial release of

the defendant. In so doing, the judicial officer shall first determine by an

informal, non-adversary hearing whether there is probable cause for

detaining the arrested person pending further proceedings. The standard

for determining probable cause at such hearing shall be the same as that

which governs arrests with or without a warrant.

Ark. R. Crim. P. 8.3.

The primary purpose of the Rule 8.1 hearing is to “ensure that an arrested person

hears directly from the judicial officer an explanation of the charges and his constitutional

rights, particularly his right to counsel and his right to remain silent.” Landrum v. State,

328 Ark. 361, 372 (1997) (Newbern, J., dissenting). However, the judicial officer often

incorporates several additional pretrial tasks into the hearing. First, the judicial officer

often assesses indigency and, if appropriate, appoints counsel.4 Second, in some

circumstances, the judicial official conducts a pretrial release inquiry and sets bail if

warranted.5 Ark. R. Crim. P. 8.4, 8.5.

4 “The court need not appoint counsel if the indigent defendant is charged with a

misdemeanor and the court has determined that under no circumstances will

incarceration be imposed as a part of any punishment.” Ark. R. Crim. P. 8.2.

5 The pretrial release inquiry is required “in all cases where the maximum penalty for the

offense charged exceeds one (1) year and the prosecuting attorney does not stipulate

that the defendant may be released on his own recognizance,” as well as “in those cases

where the maximum penalty for the offense charged is less than one (1) year and in which

a law enforcement officer gives notice to the judicial officer that he intends to oppose

release of the defendant on his own recognizance.” Id. 8.4.

Pursuant to Rule 8.5, the judicial officer may conduct the pretrial release inquiry either

during or prior to the Rule 8.1 hearing.

In Benton County, it appears that attorneys rarely (if ever) attend the Rule 8.1

hearing. Regardless, the prosecuting attorney may weigh in on the pretrial release inquiry.

Rule 8.5 instructs the prosecuting attorney to make recommendations concerning “the

advisability and appropriateness of pretrial release,” “the amount and type of bail bond,”

and “the conditions, if any, which should be imposed on the defendant’s release.” Id.

8.5(c). In practice, law enforcement and the State often join in requesting bail be set at a

particular amount, according to the Amended Complaint.

Public defenders though, appointed during the Rule 8.1 hearing itself, never attend

these proceedings in Benton County.

II. MOOTNESS

The Court’s “‘continuing obligation’ to assure that [it has] jurisdiction requires that

[it] raise issues of standing and mootness sua sponte.” Seneca Res. Corp. v. Twp. of

Highland, 863 F.3d 245, 252 (3d Cir. 2017).6 It does so here to address mootness in the

context of a putative class action. The Court concludes that Plaintiffs’ claims fall within

the inherently transitory exception to mootness and remain live.

“Article III of the United States Constitution limits the jurisdiction of the federal

courts to actual, ongoing cases and controversies.” Ali v. Cangemi, 419 F.3d 722, 723

(8th Cir. 2005) (en banc) (quoting Haden v. Pelofsky, 212 F.3d 466, 469 (8th Cir. 2000)).

Generally, “[w]hen, during the course of litigation, the issues presented in a case lose

their life because of the passage of time or a change in circumstances and a federal court

6 The Court’s determination on mootness is necessarily without prejudice. Any party may

raise the issue again, whether in disagreement with this Court’s analysis or based on new

factual developments.

can no longer grant effective relief, the case is considered moot.” Id. (cleaned up).

However, special rules apply to the “inherently transitory” class-action claim.

In Sosna v. Iowa, 419 U.S. 393, the Supreme Court held that “a named plaintiff

who had standing when the court certified a class may continue to seek relief for class

members even if later events moot the plaintiff’s individual claim.” Fox v. Saginaw Cnty.,

67 F.4th 284, 297 (6th Cir. 2023) (describing Sosna’s holding). In these circumstances,

the necessary case or controversy exists “between a named defendant and a member of

the class represented by the named plaintiff” for the purposes of standing. Belgau v.

Inslee, 975 F.3d 940, 949 (9th Cir. 2020) (quoting Sosna, 419 U.S. at 402).

The Court has “extended this principle to situations where, as here, the district

court has not ruled on class certification.” Belgau, 975 F.3d at 949 (citing Gerstein v.

Pugh, 420 U.S. 103 (1975)). In Gerstein, the Court recognized that “[s]ome claims are so

inherently transitory that the trial court will not have even enough time to rule on a motion

for class certification before the proposed representative’s individual interest expires.”

United States Parole Comm’n v. Geraghty, 445 U.S. 388, 399 (1980). Gerstein involved

a class action challenging the state’s failure to provide pretrial detainees with prompt

judicial determination of probable cause. By the time it reached the Supreme Court, the

named plaintiffs’ claims were moot, and “the record suggested that their interest might

have lapsed even before the District Court certified the class.” United States v. Sanchez-

Gomez, 138 S. Ct. 1532, 1537–38 (2018) (describing procedural posture in Gerstein).

The Court held that the case remained live, explaining:

Pretrial detention is by nature temporary, and it is most unlikely that any

given individual could have his constitutional claim decided on appeal

before he is either released or convicted. The individual could nonetheless

suffer repeated deprivations, and it is certain that other persons similarly

situated will be detained under the allegedly unconstitutional procedures.

The claim, in short, is one that is distinctly “capable of repetition, yet evading

review.”

Gerstein, 420 U.S. at 110 n.11.

The Court held that such circumstances warranted a “limited exception to Sosna’s

requirement that a named plaintiff with a live claim exist at the time of class certification.”

Sanchez-Gomez, 138 S. Ct. at 1539. This exception applies when (1) “it is uncertain that

a claim will remain live for any individual who could be named as a plaintiff long enough

for a court to certify the class,” Bellin v. Zucker, 6 F.4th 463, 473 (2d Cir. 2021) (quotations

omitted), or “the duration of the challenged action is ‘too short’ to allow full litigation before

it ceases,” Belgau, 975 F.3d at 949; and (2) “there will be a constant class of persons

suffering the deprivation complained of in the complaint.” In these circumstances, the

“case will not be moot, even if the controversy as to the named plaintiffs has been

resolved,” Bellin, 6 F.4th at 473, because “the decision on certification may be deemed

to ‘relate back’ to the filing of the complaint,” Anderson v. CNH U.S. Pension Plan, 515

F.3d 823, 826 (8th Cir. 2008) (citing Gerstein, 420 U.S. at 110 n.11).

Here, Plaintiffs challenge the constitutionality of pretrial detention absent

assistance of counsel to contest the bail determination. The Court concludes Plaintiffs’

claims are inherently transitory, and the exception applies.

Since Gerstein, “the Supreme Court has expressly held on several occasions that,

in a class action challenging procedures for pretrial detention, the release of the named

plaintiff from jail does not moot the action.” Booth v. Galveston Cnty., 352 F. Supp. 3d

718, 728 (S.D. Tex. 2019) (citing Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52

(1991); Gerstein, 420 U.S. at 110 n.11). As noted by the Seventh Circuit, “the length of

incarceration in a county jail generally cannot be determined at the outset and is subject

to a number of unpredictable factors, thereby making it inherently transitory.” Olson v.

Brown, 594 F.3d 577, 582 (7th Cir. 2010). Even to the extent Plaintiffs’ pretrial detention

followed something of a more predictable pattern—Plaintiffs allege that Benton County

pretrial detainees often receive a second bond hearing within about four to five weeks—

the duration of the challenged action is too short to allow for the full litigation of Plaintiffs’

claims. Finally, given the nature of pretrial detention, there is a “constantly changing

putative class that will become subject to the allegedly unconstitutional conditions.” Wade

v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997).

Plaintiffs’ claims remain live.

III. SOVEREIGN IMMUNITY

Defendants Saxton and Anglin each seek dismissal on the ground of sovereign

immunity.

Generally, state sovereign immunity, as enshrined in the Eleventh Amendment and

interpreted by the Supreme Court in Hans v. Louisiana, 134 U.S. 1 (1890), bars a federal

court from hearing a private plaintiff’s claim against a state. See Pharm. Rsch. & Mfrs. of

Am. v. Williams, 64 F.4th 932, 948 (8th Cir. 2023). But, in Ex parte Young, the Supreme

Court recognized two critical nuances to sovereign immunity doctrine. 209 U.S. 123

(1908). First, “a state officer who violates the United States Constitution acts without state

authority and is thus subject to suit.” Nix v. Norman, 879 F.2d 429, 432 (8th Cir. 1989).

Second, the Eleventh Amendment does not bar suits for prospective injunctive relief

against state officials to prevent violations of federal law so long as the official has “some

connection with the enforcement of that act.” Ex parte Young, 209 U.S. at 157. Under this

principle, while “a liability which must be paid from public funds in the state treasury”

remains unavailable, Edelman v. Jordan, 415 U.S. 651, 663 (1974), a private party may

seek an “injunction[] to prevent or to remedy a state officer’s conduct,” Nix, 879 F.2d at

432.

In sum, under Ex parte Young, a state official may be sued in his or her official

capacity so long as (1) the suit seeks prospective injunctive relief, (2) to prevent violations

of federal law, and (3) the official has some connection with enforcement of that act. “In

determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar

to suit, a court need only conduct a straightforward inquiry into whether the complaint

alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.” McDaniel v. Precythe, 897 F.3d 946, 951–52 (8th Cir. 2018) (cleaned up)

(quoting Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)).

As explained below, the Court finds that the claims against Defendants Saxton and

Anglin both fall within the Ex parte Young exception to sovereign immunity.

A. Defendant Saxton

Defendant Saxton is the Chief Public Defender of Benton County. He challenges

the third prong under Ex parte Young analysis, arguing that he lacks a sufficient

connection with enforcement of the challenged conduct to fall within the exception to

sovereign immunity.

Mr. Saxton claims he has no authority to “set or enforce” state policy. (Doc. 62,

p. 10). Nor, he contends, does he “have responsibility for, or control over, the number of

public defenders that the State funds, the number of public defenders assigned to Benton

County, or whether to staff public defenders on bail hearings.” Id. The Arkansas Public

Defender Commission, in conjunction with the Arkansas legislature, possess the

exclusive right to make such changes, according to Mr. Saxton. Arkansas Code § 16-87-

203 empowers the Commission to “establish policies and standards for the organization

and operation of public defenders’ offices throughout the state, including funding,

compensation, staffing, and standards of experience for attorneys assigned to particular

cases” and to “allocate personnel for each public defender's office throughout the state.”

Id. § 16-87-203(a). The Arkansas legislature handles appropriations, setting forth in law

both public defender salaries and the number of positions. See Doc. 61-1, p. 19.

Mr. Saxton lacks authority to independently increase the number of public

defenders in his office. That is clear. But the connection required under Ex Parte Young

“does not need to be primary authority to enforce the challenged law.” Church v. Missouri,

913 F.3d 736, 748 (8th Cir. 2019) (quoting 281 Care Comm. v. Arneson, 638 F.3d 621,

632 (8th Cir. 2011) (“281 Care Comm. I”)). “Nor does the state officer need to have the

full power to redress a plaintiff’s injury in order to have ‘some connection’ with the

challenged law.” Id. (brackets omitted) (quoting 281 Care, 638 F.3d at 633). Plaintiffs

allege that Mr. Saxton “has the authority to order the deputy public defenders to certain

courts at certain times.” (Doc. 70, p. 15). Such authority suffices to establish “some

connection” to the challenged conduct, and the statutory provision Mr. Saxton cites does

not undermine that claim.

At the motion-to-dismiss stage, the Court need only determine whether a

defendant is a “potentially proper party for injunctive relief.” Reprod. Health Servs. of

Planned Parenthood of St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1145 (8th Cir.

2005) (emphasis in original). Compare 281 Care Comm. I, 638 F.3d at 626 (addressing

Ex parte Young doctrine at motion-to-dismiss stage), with 281 Care Comm. v. Arneson,

766 F.3d 774, 797 (8th Cir. 2014) (“281 Care Comm. II”) (addressing Ex parte Young

doctrine at summary-judgment stage). Should Mr. Saxton later establish, for example, the

complete absence of authority to direct an attorney to attend an initial hearing, that fact

may change the analysis and he may raise the issue then.

B. Defendant Anglin

Defendant District Judge Anglin is the elected district judge in Division 3 of Benton

County, Arkansas. He argues, first, that the Supreme Court’s recent decision in Whole

Woman’s Health v. Jackson, 142 S. Ct. 522, 532 (2021), renders state court officials

categorically exempt from suit, even under Ex parte Young. Second, he maintains that

even if suits against some state court officials may proceed, the Ex parte Young exception

to state sovereign immunity does not apply here.

1. State Court Officials: Categorical Exemption?

Courts have long understood claims against state court officials to warrant special

solicitude in the Ex parte Young analysis. But while the doctrine does not bless

prospective relief that would “restrain a state court from acting” or from “exercising

jurisdiction in a case,” nor does it categorically prohibit prospective relief against state

court officials.7 Nevertheless, according to Judge Anglin, Jackson signifies a sea change.

7 See, e.g., Anderson v. Valdez, 913 F.3d 472 (5th Cir. 2019) (holding that the Ex parte

Young exception to Eleventh Amendment immunity applied to claim against state court

justice brought by former state court employee alleging First Amendment retaliation);

Ward v. City of Norwalk, 640 F. App’x 462 (6th Cir. 2016) (holding that the Ex parte Young

exception applied to offenders’ suit alleging that their jail time for low-level misdemeanors

and traffic violations was unconstitutionally lengthened and seeking prospective

declaratory judgment against municipal court judge and court clerk); Wolfe v. Strankman,

392 F.3d 358 (9th Cir. 2004) (finding civil rights claims against state court judges and

He contends that a state court official may not face liability in his or her official capacity,

even where such an individual would otherwise be subject to suit under Ex parte Young.

Neither this Court nor the Eighth Circuit agree.

In Jackson, the Supreme Court examined the Texas Heartbeat Act, 87th Leg.,

Reg. Sess., known as “S.B. 8,” which effectively bars an abortion after six weeks and

empowers private citizens to sue any person who performs or “aids and abets” an abortion

after the six-week mark. Tex. Health & Safety Code Ann. §§ 171.204(a), 171.207(a),

171.208(a). The plaintiffs argued the law was unconstitutional and sought an injunction

barring state court judges from presiding over, and state court clerks from docketing, any

such action. Jackson, 142 S. Ct. at 532. The Supreme Court denied that request. Id. It

explained that Ex parte Young does not “normally permit federal courts to issue

injunctions against state-court judges or clerks” because these officials “[u]sually[] do not

enforce state laws as executive officials might.” Additionally, the Court continued, “[i]f a

state court errs in its rulings . . . the traditional remedy has been some form of appeal, . . .

not the entry of an ex ante injunction preventing the state court from hearing cases.” Id.

The Court further implied that the sovereign immunity analysis may implicate

standing, specifically Article III’s case-or-controversy requirement. It explained that

“[j]udges exist to resolve controversies about a law’s meaning or its conformance to the

employees fell within the Ex parte Young exception to sovereign immunity); Condon v.

Haley, 21 F. Supp. 3d 572 (D.S.C. 2014) (holding Eleventh Amendment immunity did not

bar same-sex couple’s action against South Carolina county probate judge challenging

the constitutionality of South Carolina’s refusal to recognize same-sex marriages); Zeigler

v. New York, 948 F. Supp. 2d 271 (N.D.N.Y. 2013) (holding that Ex parte Young exception

to sovereign immunity may apply to New York district administrative judge in § 1983 suit

challenging county’s plan for providing counsel to indigent criminal defendants).

Federal and State Constitutions, not to wage battle as contestants in the parties’

litigation.” Id. “‘[N]o case or controversy’ exists ‘between a judge who adjudicates claims

under a statute and a litigant who attacks the constitutionality of the statute,’” Id. (quoting

Pulliam v. Allen, 466 U.S. 522, 538, n. 18 (1984)). As a result, the Court held, the relief

sought by the plaintiffs was unavailable.

The Eighth Circuit construes the Jackson decision to simply reiterate existing

doctrine. In Courthouse News Service v. Gilmer, 48 F.4th 908 (8th Cir. 2022), the plaintiff,

Courthouse News, alleged that Missouri’s e-filing system unconstitutionally delayed

reporters’ access to newly filed complaints. It sued the Circuit Clerk for St. Louis County

and the Missouri State Courts Administrator seeking an injunction that would require more

timely access. The defendants moved for dismissal, arguing Jackson prohibited such

relief. The Eighth Circuit disagreed. It explained that the “rule . . . has not changed over

the last century[.] [S]tate sovereign immunity shields state-court judges and clerks from

prospective relief that will interfere with their ability to ‘act in any case[,]’ . . . [a]nd a lawsuit

aimed at preventing state-court clerks from docketing abortion cases” does just that. Id.

at 912. But, the court continued, the injunction sought by Courthouse News would have

no such effect. It would “not prevent any Missouri court from ‘acting’ or ‘exercising

jurisdiction’ in any case.” Id. (brackets omitted). Instead, it would simply require the

defendants “to release newly filed petitions earlier than she might otherwise have.” Id.

(brackets omitted). It concluded, “That is not the type of relief that will upset the whole

scheme of government.” Id. (cleaned up).

Other circuits have reached similar conclusions post-Jackson. See Laborers’ Int’l

Union of N. Am., Loc. 860 v. Neff, 29 F.4th 325, 334 (6th Cir. 2022) (noting that “[t]he

Juvenile Court’s status as an arm of the State would not prevent [the court] from enjoining

the administrators from future violations of the Takings Clause”); Argen v. Att’y Gen. New

Jersey, No. 21-2571, 2022 WL 3369109, at *3 (3d Cir. Aug. 16, 2022) (concluding a judge

who makes and enforces a rule of an administrative character can be sued under Section

1983 for declaratory relief (cleaned up)).

This Court finds the Eighth Circuit’s Gilmer analysis applicable here. The present

circumstances meaningfully differ from those in Jackson. First, Plaintiffs seek relief

entirely unrelated to the district court’s jurisdiction. Plaintiffs simply request that an

existing administrative obligation—appointment of counsel to indigent arrestees—occur

in time for counsel to participate in the pretrial release inquiry. Such relief would have no

impact on the authority or discretion to appoint counsel—or, for that matter, to rule on

pretrial release. Like Courthouse News Service in Gilmer, Ms. Farella and Mr. Murphy

ask only that state court officials perform their administrative function prior to conducting

the pretrial release inquiry.

Second, as in Gilmer, the traditional appeal is unavailable. The alleged defect—

failure to appoint counsel in time to participate in the pretrial release inquiry—cannot be

raised in defense of criminal prosecution. Even a favorable collateral ruling would have

little effect for class members. Indigent arrestees would continue to face the same delay

in access to counsel. Moreover, according to the Amended Complaint, while an indigent

criminal defendant may request reconsideration of bail, Judge Anglin and other Benton

County courts typically take any such request up at arraignment—which is consistently

set for at least a month following the Rule 8.1 hearing. See Doc. 34, p. 9. In effect, Benton

County’s procedures deprive indigent individuals of any opportunity to timely challenge

the bail determination.

Finally, Plaintiffs do not seek to litigate the “merits of any underlying lawsuit” by

suing Judge Anglin. Plaintiffs want legal representation made available to indigent

defendants during bail hearings; Judge Anglin contends defendants are just fine without

counsel. On this very narrow issue—the timing associated with appointment of counsel—

Plaintiffs and Defendant Anglin are adverse.

Accordingly, the Court rejects Judge Anglin’s position. Jackson does not render

state court officials categorically exempt from suit. It remains true that, in some

circumstances, state court officials may fall within the ambit of the Ex parte Young

exception to sovereign immunity.

2. Ex parte Young Analysis

Judge Anglin contends that even if the Court finds no categorical exemption to

exist, Plaintiffs fail to establish the Ex parte Young exception applies here. He argues that

Plaintiffs seek monetary damages, rather than prospective relief; no ongoing violation

exists; and he lacks the requisite connection with the challenged conduct. The Court

disagrees.

First, Judge Anglin argues Plaintiffs seek retrospective, not prospective relief. He

contends that a ruling in favor of Plaintiffs would require “the State . . . to pay for attorneys

to be present at these hearings,” thereby imposing additional expense on the state.

(Doc. 48, p. 8). So, he reasons, “even though Plaintiffs have attempted to couch their

claims as only seeking declaratory relief [against Judge Anglin,] [i]n actuality, Plaintiffs

seek to have this Court control the actions and treasury funds of the State,” id., and, as a

result, that relief is properly characterized as retrospective.

The Supreme Court settled this issue almost 50 years ago in Edelman v. Jordan,

415 U.S. 651, 668 (1974), when it explained that “under Ex parte Young, a federal court

may enjoin state officials to conform their future conduct to the requirements of federal

law, even though such an injunction may have an ancillary effect on the state treasury.”

Quern v. Jordan, 440 U.S. 332, 337 (1979). See also Nix, 879 F.2d at 432 (same). “What

the [Eleventh] Amendment forecloses is an award of money required to be paid from state

funds that compensates a claimant for the state’s past violations of federal law.” New York

City Health & Hosps. Corp. v. Perales, 50 F.3d 129, 135 (2d Cir. 1995). But “where an

adverse effect on the state treasury is ‘the necessary result of compliance with decrees

which by their terms were prospective in nature,’ the Eleventh Amendment poses no

obstacle.” Morenz v. Wilson-Coker, 415 F.3d 230, 237 (2d Cir. 2005) (quoting Edelman,

415 U.S. at 668). Judge Anglin makes no mention of the long line of cases, nor does he

explain why this case is distinguishable. His objection is wholly unavailing, and the Court

concludes that Plaintiffs properly state a claim for prospective relief.

Judge Anglin next argues that Ex parte Young does not apply because “there is

not an ongoing violation given that the actions in question was [sic] a onetime event that

happened in the past.” (Doc. 48, p. 10). Judge Anglin, however, does not deny that he

continues to engage in the same pattern of allegedly unconstitutional conduct. The

existing policy will subject putative class members to the same injury on an ongoing basis.

Finally, Judge Anglin contends that Ex parte Young does not apply because he

“does not have the ability to ensure that sufficient public defenders are hired to cover the

hearings in question,” and as a result, lacks the requisite connection to the allegedly

unconstitutional conduct. Id.

Arkansas law empowers state district court judges like Judge Anglin to preside

over criminal misdemeanor and felony pretrial proceedings, including the bail hearings at

issue here. See Ark. Code Ann. § 16-88-101(c). Arkansas Rule of Criminal Procedure 8.2

requires that a judicial officer determine whether a defendant is indigent and, if so, appoint

counsel. Rule 8.3 requires the judicial officer to decide the question of pretrial release.

District court judges regularly execute these functions—and, according to the Amended

Complaint, conduct the pretrial release inquiry without the presence of counsel for

indigent individuals. As a result, the statutory and regulatory schemes provide the district

court judge with “some connection” to the allegedly unconstitutional policy and practice.

The connection required under Ex Parte Young “does not need to be primary

authority to enforce the challenged law.” Church, 913 F.3d at 748 (quoting 281 Care

Comm. I, 638 F.3d 621 at 632). That Judge Anglin lacks the authority to hire additional

public defenders has no impact on the analysis.

IV. Abstention

Defendants argue this Court should abstain from exercising its jurisdiction given

the pendency of a state case, Ricky Lee Burnett v. State of Arkansas, CR-22-253.8

8 Defendants cited the pendency of a second state case, Cory Thompson v. State of

Arkansas, CR-23-93, as a basis for abstention. In his petition for writ of certiorari and

habeas corpus, Mr. Thompson alleged improper pretrial detention and failure to provide

indigent defendants with counsel during the bail hearing. However, on April 10, 2023, the

Arkansas Supreme Court denied Mr. Thompson’s petitions. While his criminal matter

continues to proceed, his case no longer puts the constitutional question at issue here

before the Arkansas Supreme Court. As a result, Thompson necessarily fails to provide

a basis for abstention, and this Court need not consider it.

Burnett is a state criminal proceeding against an indigent defendant. Mr. Burnett

seeks a new pre-trial release hearing and a declaration of the right to counsel at such

hearings. He argues that the Arkansas trial court’s failure to provide him with assistance

of counsel during his bail hearing violated the Arkansas Rules of Criminal Procedure and

the Due Process and Equal Protection Clauses of the Fourteenth Amendment; the

$350,000 bail set in his case violated the Eighth Amendment’s protection against

excessive bail and the Arkansas Constitution; the trial court erred in holding him without

bond for an alleged probation violation absent a revocation petition; and his appeal is not

moot, despite the fact that the day before the State’s response was due to the Arkansas

Supreme Court, it nolle prossed or dismissed the charges against Mr. Burnett.

Federal courts have “a strict duty to exercise the jurisdiction that is conferred upon

them by Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). “This

duty is not, however, absolute.” Id. “The doctrine of abstention, under which a District

Court may decline to exercise or postpone the exercise of its jurisdiction,” provides “an

extraordinary and narrow exception to the duty of a District Court to adjudicate a

controversy properly before it.” Colo. River Water Conservation Dist. v. United States,

424 U.S. 800, 813 (1976).

Public Defender Defendants argue the instant litigation duplicates pending state

proceedings, and under the Colorado River abstention doctrine, the Court should refrain

from exercising its jurisdiction. Defendant Anglin contends Younger and Brillhart counsel

in favor of abstention.

The Court examines each abstention doctrine below. It finds Defendants’

arguments unavailing. The Court can discern no basis upon which it may refuse to

exercise jurisdiction.

A. Colorado River Abstention

Colorado River recognizes that, in exceptional circumstances, wise judicial

administration may warrant “the dismissal of a federal suit due to the presence of a

concurrent state proceeding. Colo. River Water Conservation Dist. v. United States, 424

U.S. 800, 817 (1976). To abstain under this doctrine, the Court must find: (1) the pending

state and federal cases are “parallel” and (2) “exceptional circumstances” warrant

abstention. See Fru-Con Const. Corp. v. Controlled Air, Inc., 574 F.3d 527, 534 (8th Cir.

2009).

“Parallelism” requires more than simply the pendency of a state claim “based on

the same general facts or subject matter as a federal claim and involving the same

parties.” Fru-Con, 574 F.3d at 535. Instead, the Court must find “substantial similarity”

exists between the proceedings such that “there is a substantial likelihood that the state

proceeding will fully dispose of the claims presented in the federal court.” Id. To make

such a finding, the Court compares the “sources of law, required evidentiary showings,

measures of damages, and treatment on appeal” for each claim. Cottrell v. Duke, 737

F.3d 1238, 1245 (8th Cir. 2013) (quoting Fru-Con, 574 F.3d at 536). “[I]f there is any

doubt as to the parallel nature of the state and federal proceedings,” the Court must

exercise jurisdiction. Fru-Con, 574 F.3d at 536.

Defendants Parish and Saxton claim that Mr. Burnett’s pending state case is

sufficiently parallel to the instant litigation to warrant abstention. The Court disagrees.

“When a district court decides to dismiss or stay under Colorado River, it presumably

concludes that the parallel state-court litigation will be an adequate vehicle for the

complete and prompt resolution of the issues between the parties.” Window World Int’l,

LLC v. O’Toole, 21 F.4th 1029, 1033 (8th Cir. 2022) (quoting Moses H. Cone Mem’l Hosp.

v. Mercury Constr. Corp., 460 U.S. 1, 28 (1983)).

Here, while Mr. Burnett, Ms. Farella, and Mr. Murphy challenge the same bail

procedure, it is not certain that resolution of Mr. Burnett’s case will fully dispose of the

claims presented here. Burnett presents several questions to the Arkansas Supreme

Court, making it entirely possible to fully resolve Mr. Burnett’s appeal without reaching

any issue that would impact, much less dispose of, Ms. Farella and Mr. Murphy’s claims.

Even to the extent the Arkansas Supreme Court addresses the same substantive

issue—the right to counsel at a bail hearing—it may not necessarily do so on any ground

that is relevant here. Mr. Burnett argues the right is grounded in both Arkansas law and

the Fourteenth Amendment to the federal Constitution; while Ms. Farella and Mr. Murphy

bring suit under the Sixth Amendment.

Burnett is also postured differently. First, Mr. Burnett directly appealed the trial

court’s bail decision, so his claim regarding a right to counsel remains embedded in his

criminal case. Second, while Mr. Burnett was apparently arrested on new charges, his

brief before the Arkansas Supreme Court indicates bail was set and he was remanded to

the state’s custody for parole revocation. Ms. Farella and Mr. Murphy, in contrast,

appeared before Judge Anglin solely on new charges. These differences, along with

others, make it even less likely that a decision in Mr. Burnett’s case will dispose of Ms.

Farella and Mr. Murphy’s claims.

Given this uncertainty, the Court cannot find sufficient parallelism to justify

abstention under Colorado River. Furthermore, even if the Court held otherwise, Public

Defender Defendants fail to demonstrate that exceptional circumstances warrant

abstention.

Under the second prong of the Colorado River test, the Court considers six non-

exhaustive factors:

(1) whether there is a res over which one court has established jurisdiction,

(2) the inconvenience of the federal forum, (3) whether maintaining separate

actions may result in piecemeal litigation, unless the relevant law would

require piecemeal litigation and the federal court issue is easily severed, (4)

which case has priority—not necessarily which case was filed first but a

greater emphasis on the relative progress made in the cases, (5) whether

state or federal law controls, especially favoring the exercise of jurisdiction

where federal law controls, and (6) the adequacy of the state forum to

protect the federal plaintiff’s rights.

Fru-Con, 574 F.3d at 534 (quotations omitted). Courts “pragmatically apply [these factors]

to advance the ‘clear federal policy’ of avoiding piecemeal adjudication.” Mountain Pure,

LLC v. Turner Holdings, LLC, 439 F.3d 920, 926 (8th Circuit 2006) (citing Moses, 460

U.S. at 16, 21). Nevertheless, the balance should be “weighted in favor of the exercise of

jurisdiction.” Moses, 460 U.S. at 16. A court’s task in applying these factors “is not to find

some substantial reason for the exercise of federal jurisdiction,” but rather “to ascertain

whether there exist ‘exceptional’ circumstances . . . to justify the surrender of that

jurisdiction.” Id. at 25–26 (emphasis in original).

Here, the first two factors are neutral. There are no property or forum convenience

issues. There is some risk of piecemeal litigation, which “occurs when different tribunals

consider the same issue, thereby duplicating efforts and possibly reaching different

results.” Nabholz Cons. Corp. v. Beck, 699 F. Supp. 2d 1101, 1107 (E.D. Mo.

2010) (quoting LaDuke v. Burlington N.R. Co., 879 F.2d 1556, 1560 (7th Cir. 1989)). Both

suits ask the presiding court to find indigent defendants possess a right to counsel at bail

hearings. However, the differences in parties, sources of law, remedies sought, and

alleged facts make it unlikely, although not entirely impossible, that the tribunals will

ultimately address the same issue.

Burnett was filed before this one, and it is fully briefed. However, factual

development regarding the bail hearing and the related procedures is more likely to occur

first in this case. Burnett is before the Arkansas Supreme Court on a writ, and it is unclear

that discovery on the relevant issues will occur. Burnett involves state law and different

federal provisions than those at issue here. The instant matter implicates only federal law.

Finally, although the Court agrees that the state courts are fully competent to

adjudicate issues of constitutional interpretation, the sixth factor is neutral as it “counts

for or against abstention and dismissal only where one of the forums is inadequate to

protect a party’s rights.” Fru–Con Const. Corp., 574 F.3d at 539 (emphasis in original)

(internal quotation marks omitted).

On balance, the factors do not demonstrate that exceptional circumstances

warrant abstention. Therefore, even if Burnett were deemed parallel, the Court does not

find abstention appropriate under Colorado River.

B. Brillhart Abstention

Judge Anglin urges the Court to abstain under the Brillhart doctrine. The Court

finds it does not apply.

In Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995), “‘the Supreme Court

considered the appropriate standard governing a district court’s decision to dismiss or

stay a federal declaratory judgment action during the pendency of parallel state court

proceedings and adopted the discretionary standard set forth’ in Brillhart v. Excess Ins.

Co., 316 U.S. 491 (1942).” Capitol Indem. Corp. v. Haverfield, 218 F.3d 872, 874 (8th Cir.

2000). “Under Brillhart, the district court must consider the scope and nature of the

pending state court proceeding to ascertain whether the issues in controversy between

the parties to the federal action, not foreclosed under applicable substantive law, can be

better settled by the state court.” Id. “If a district court finds the cases are parallel and that

the issues in the federal action can be better settled by the state court, the district court

must abstain because it would be uneconomical as well as vexatious for a federal court

to proceed in a declaratory judgment suit where another suit is pending in a state court

presenting the same issues, not governed by federal law, between the same parties.’”

Consumers Ins. USA, Inc. v. Trexler, 618 F. Supp. 3d 844, 847–48 (E.D. Mo. 2022)

(quotation marks omitted) (quoting Capitol Indem. Corp., 218 F.3d at 874–75).

Even if the Court were to find the cases present substantially the same claims,

state law does not govern in both actions. Moreover, Brillhart applies only to actions

brought under the Declaratory Judgment Act. It “may not apply when a party seeks a good

faith injunction as well as declaratory relief.” Royal Indem. Co. v. Apex Oil Co., 511 F.3d

788, 795 (8th Cir. 2008) (emphasis added). Ms. Farella and Mr. Murphy’s good faith plea

for injunctive relief precludes application of Brillhart.

C. Younger Abstention

Defendant Anglin also urges this Court to abstain under the Younger doctrine,

which prohibits federal courts from interfering with certain state proceedings. Younger v.

Harris, 401 U.S. 37 (1971).

In New Orleans Public Service, Inc. v. Council of the City of New Orleans, the

Supreme Court held that “only exceptional circumstances justify a federal court's refusal

to decide a case in deference to the States.” 491 U.S. 350, 368. In the context of Younger,

that includes state criminal prosecutions. “Where there is a parallel, pending state criminal

proceeding, federal courts must refrain from enjoining the state prosecution.” Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013) (emphasis added).

There are two more steps to the Younger inquiry. First, under Middlesex County

Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982), the Court must

determine whether there is “(1) [an] ongoing state judicial proceeding, which (2) implicates

important state interests, and (3) provides an adequate opportunity to raise federal

challenges.” 375 Slane Chapel Rd., LLC v. Stone Cnty., 53 F.4th 1122, 1125 (8th Cir.

2022). Second, if the Court concludes in the affirmative, it must finally consider whether

“abstention [is] nevertheless inappropriate because an exception to abstention applies.”

Id. at 1127. These exceptions include (1) bad faith or harassment by state prosecution,

(2) applicable state law “flagrantly and patently violative of express constitutional

prohibitions,” or (3) extraordinary circumstances such that there is a “sufficient threat of

such great, immediate, and irreparable injury” absent federal injunctive relief. Kugler v.

Helfant, 421 U.S. 117, 124–25 (1975) (quotations omitted).

Absent satisfaction of Younger’s three-part inquiry, the general rule applies: “[T]he

pendency of an action in [a] state court is no bar to proceedings concerning the same

matter in the Federal court having jurisdiction.” Sprint, 571 U.S. at 73 (quoting Colo. River,

424 U.S. at 817).

Here, Defendant Anglin argues that Younger applies because the case would

“impact an ongoing state criminal case,” namely Burnett v. Arkansas. (Doc. 48, p. 11).

This argument misses the mark. The Sprint Court wrote that Younger abstention is

intended to “preclude[] federal intrusion,” not mere impact, “into ongoing state criminal

prosecutions.” Sprint, 571 U.S. at 78 (emphasis added). Abstention is not appropriate

simply because a federal case raises issues that a state court may also address in an

unrelated criminal prosecution.

The Burnett case does not constitute a parallel pending state criminal proceeding.

The requested relief in this federal case would neither “enjoin[] the state prosecution,” id.

at 72, nor require the “day-to-day” monitoring of state courts that threatens the principles

of comity and federalism underlying the Younger doctrine. O’Shea v. Littleton, 414 U.S.

488, 501 (1974). Moreover, the instant litigation closely resembles the facts at issue in

Gerstein v. Pugh. In Gerstein, the Supreme Court held that Younger did not apply where

a requested injunction “was not directed at the state prosecutions as such, but only at the

legality of pretrial detention without a judicial hearing, an issue that could not be raised in

defense of the criminal prosecution.” 420 U.S. 103, 108 n.9 (1975). Similarly, here,

Plaintiffs question the legality of pretrial detention absent assistance of counsel. Relief to

Ms. Farella and Mr. Burnett would not “prejudice the conduct of the trial on the merits.”

Id. The cases do not even involve the same parties.

In sum, Defendant Anglin does not demonstrate Younger’s first prong, the

presence of an exceptional circumstance. Accordingly, Younger does not apply.

V. FAILURE TO STATE A CLAIM

Defendant Anglin contends Ms. Farella, Mr. Murphy, and others similarly situated

have no right to counsel at a bail hearing under the Sixth Amendment and, accordingly,

moves to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim.9

A. Legal Standard

To survive a 12(b)(6) motion, the “complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quotation marks omitted).

9 Plaintiffs also allege due process and equal protection claims. The Court limits its

discussion to the Sixth Amendment. While Judge Anglin does state that Plaintiffs’ claims

are all dependent upon a right to counsel at the bail hearing, (Doc. 48, p. 3–4), his motion

meaningfully discusses only the Sixth Amendment claim.

In his Reply (Doc. 54), Judge Anglin expands on his objection to Plaintiffs’ Due Process

and Equal Protection Clause claims by arguing the Sixth Amendment ultimately

subsumes both. He writes, “Therefore, Separate Defendants’ arguments regarding the

fact that Plaintiffs’ Sixth Amendment rights have not been violated also apply to Plaintiffs’

due process and equal protection claims under the Fourteenth Amendment. Thus,

Plaintiffs’ due process and equal protection claims fail for the same reasons.” Id. at p. 4

(citation omitted).

For now, the Court declines to reach this argument. Were the Court to accept Judge

Anglin’s argument as correct, then it would not need to reach the issue: The Court finds

Plaintiffs state a claim with respect to the right to counsel under the Sixth Amendment,

so, by Judge Anglin’s logic, the same reasoning applies to the Due Process and Equal

Protection claims, thereby preserving both. Were the Court to reject Judge Anglin’s

argument—such that the Due Process and Equal Protection claims do not rise and fall

with the Sixth Amendment—then Judge Anglin’s briefing provides no argument upon

which the Court might dismiss the Due Process and Equal Protection claims.

“A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Glick v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019) (quoting Iqbal,

556 U.S. at 663)). In ruling, the Court must “accept as true all facts pleaded by the non-

moving party and grant all reasonable inferences from the pleadings in favor of the

nonmoving party.” Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012)

(quotation marks omitted). The Court may rely on “the pleadings themselves, materials

embraced by the pleadings, exhibits attached to the pleadings, and matters of public

record.” Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010).

Still, the complaint must contain sufficient facts “to raise a right to relief above the

speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that

contain mere “labels and conclusions” or “a formulaic recitation of the elements of the

cause of action will not do.” Id. A court is not required to “blindly accept the legal

conclusions drawn by the pleader from the facts.” Westcott v. City of Omaha, 901 F.2d

1486, 1488 (8th Cir. 1990).

B. Analysis

Plaintiffs allege indigent criminal defendants possess a constitutional right to

effective assistance of counsel during Arkansas’s Rule 8.1 hearing. They contend that

the proceeding marks the beginning of prosecution, and because the pretrial detention

and bail determinations hold significant consequences for the accused, defense counsel

must be present. Defendant Anglin disputes both contentions. The Court finds that

Plaintiffs state a claim upon which relief may be granted.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defence.” The right

“attaches” only when “a prosecution is commenced.” Rothgery v. Gillespie Cnty., 554 U.S.

191, 198 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)). The Supreme

Court pegs commencement of prosecution to “the initiation of adversary judicial criminal

proceedings—whether by way of formal charge, preliminary hearing, indictment,

information, or arraignment.” Id.10

In Rothgery, the Court expressly held that the right to counsel attaches at “first

appearance before a judicial officer at which a defendant is told of the formal accusation

against him and restrictions are imposed on his liberty.” 554 U.S. at 194. The Rule 8.1

hearing, as alleged in Plaintiffs’ Amended Complaint and described by the Arkansas

Rules of Criminal Procedure, does precisely this. Accordingly, the Court finds that, by the

Rule 8.1 hearing, “the government has used the judicial machinery to signal a

commitment to prosecute,” id. at 198, and the right to counsel has attached.

Judge Anglin neither discusses the relevance of Rothgery nor attempts to

distinguish it. Instead, he argues, “the bail hearings were not sufficiently adversarial and

were more administrative.” (Doc. 48, p. 7). That is not the standard with respect to

attachment. To determine whether a criminal defendant’s Sixth Amendment right to

counsel has attached, the court considers not whether the Rule 8.1 hearing itself is

adversarial but instead whether, at that point in time, “‘the government has committed

itself to prosecute,’ ‘the adverse positions of government and defendant have solidified,’

10 Prior to the initiation of adversarial criminal proceedings, a suspect’s right to assistance

of counsel derives from the Fifth Amendment’s protection.

and the accused ‘finds himself faced with the prosecutorial forces of organized society,

and immersed in the intricacies of substantive and procedural criminal law.’” Rothgery,

554 U.S. at 198 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

The Court concludes Rothgery is dispositive: At the Rule 8.1 hearing, “the

government has used the judicial machinery to signal a commitment to prosecute,” and

the right to counsel has attached. Id.

Attachment alone, however, does not promise the right to assistance of counsel.

“[O]nce the adversary judicial process has been initiated, the Sixth Amendment

guarantees a defendant the right to have counsel present at all ‘critical’ stages of the

criminal proceedings.” Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (citing United

States v. Wade, 388 U.S. 218, 227–228, (1967); Powell v. Alabama, 287 U.S. 45, 57

(1932)). A “critical stage” is one that “h[olds] significant consequences for the accused.”

Woods v. Donald, 575 U.S. 312, 315 (2015) (quoting Bell v. Cone, 535 U.S. 685, 696

(2002)).

In assessing whether the Rule 8.1 hearing constitutes a critical stage, the Court

considers “whether potential substantial prejudice to defendant’s rights inheres in the

particular confrontation and the ability of counsel to help avoid that prejudice.” Coleman

v. Alabama, 399 U.S. 1, 7 (1970). The inquiry is a functional one, and the contours of

local procedure matter. See, e.g., White v. Maryland, 373 U.S. 59, 60 (1963) (“Whatever

may be the normal function of the ‘preliminary hearing’ under Maryland law, it was in this

case as ‘critical’ a state as arraignment under Alabama law.”).

Although the Supreme Court has held a range of pretrial proceedings to be

“critical,” including arraignments, post-indictment interrogations, post-indictment lineups,

the entry of a guilty plea, and negotiation of a plea deal,11 it has not directly addressed

bail. Nevertheless, its precedent suggests that the Supreme Court recognizes the

significant advantages inherent in counsel’s assistance at a bail hearing—and that the

pretrial detention determination may represent a critical stage. In Coleman v. Alabama,

for example, the Court held that where “the purposes of a preliminary hearing are to

determine whether there is sufficient evidence against the accused to warrant presenting

his case to the grand jury and, if so, to fix bail if the offense is bailable,” the hearing

constitutes a critical stage. 399 U.S. at 8. The Court emphasized the practical importance

of Alabama’s preliminary hearing, noting that “counsel can . . . be influential at the

preliminary hearing in making effective arguments on such matters as the necessity for

an early psychiatric examination or bail.” Id. at 9. The Court held that “[t]he inability of the

indigent accused on his own to realize these advantages of a lawyer's assistance compels

the conclusion that the Alabama preliminary hearing is a critical stage’ of the State’s

criminal process at which the accused is as much entitled to such aid (of counsel) as at

the trial itself.” Id. at 9–10 (cleaned up). See also Smith v. Lockhart, 923 F.2d 1314, 1319

(8th Cir. 1991) (“The Supreme Court has recognized the special role played by counsel

at preliminary hearings in which bail reduction motions are considered.”) (citing Coleman,

399 U.S. at 9)).

Here, assuming the allegations in the Amended Complaint to be true, the Court

concludes the pretrial detention and bond inquiry constitutes a critical stage. Plaintiffs

11 See Missouri v. Frye, 566 U.S. 134, 140 (2012) (collecting cases). See also id. (plea

negotiations); Hamilton v. Alabama, 368 U.S. 52 (1961) (arraignment); Massiah v. United

States, 377 U.S. 201 (1964) (post-indictment interrogation); Wade, 388 U.S. 218 (post-

indictment lineup); Argersinger v. Hamlin, 407 U.S. 25 (1972) (guilty plea).

allege “[a]n unrepresented defendant may . . . lose valuable time to properly prepare a

defense.” (Doc. 34, p. 14). In Benton County, Plaintiffs claim that indigent criminal

defendants unable to post bail are unlikely to meet with counsel until the next hearing,

which is often more than a month away. Id. The ability to conduct fact investigation and

begin “formulating a defense strategy” is impaired. Id.

Detention may also change the incentive structure. As a recent Stanford Law

Review article notes:

[D]etention alters the incentives for fighting a charge. A detained defendant

generally has less to lose by pleading guilty; detention may have already

caused major disruption to her life. And whereas for a released defendant

the prospect of a criminal sentence--custodial or otherwise-- represents a

serious loss of liberty, for a detainee it is, at worst, an extension of the status

quo.

Paul Heaton, Sandra Mayson, Megan Stevenson, The Downstream Consequences of

Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 722 (2017). The same article finds

that, in an analysis of misdemeanor cases in Harris County, Texas, “detained defendants

are 25% more likely than similarly situated releasees to plead guilty, are 43% more likely

to be sentenced to jail, and receive jail sentences that are more than twice as long on

average.” Id.

Furthermore, “pretrial detention puts defendants at a profound disadvantage in

plea negotiations vis-à-vis the position they would be in if negotiating from freedom.” Id.

at 776. “[A]pproximately 17% of the detained misdemeanor defendants who pleaded

guilty would not have been convicted at all but for their detention.” Id.

The initial bail determination risks substantial prejudice to the defendant. The

benefits of legal assistance are obvious. Under Arkansas law, courts consider the

following factors in assessing pretrial release:

• The defendant’s employment status, history and financial condition.

• The nature and extent of his family relationships.

• His past and present residence.

• His character and reputation.

• Persons who agree to assist him in attending court at the proper times.

• The nature of the current charge and any mitigating or aggravating

factors that may bear on the likelihood of conviction and the possible

penalty.

• The defendant’s prior criminal record, if any, and, if he previously has

been released pending trial, whether he appeared as required.

• Any facts indicating the possibility of violations of law if the defendant is

released without restrictions.

• Any other facts tending to indicate that the defendant has strong ties to

the community and is not likely to flee the jurisdiction.

Ark. R. Crim. P. 8.5(b). Arkansas law also provides guidance for setting bail. The judicial

officer must determine that no other conditions will reasonable ensure the appearance of

the defendant in court. Id. 9.2(a). In setting the amount of bail, the judicial officer considers

all information relevant to the risk of willful nonappearance, including:

• The length and character of the defendant's residence in the community.

• His employment status, history and financial condition.

• His family ties and relationship.

• His reputation, character and mental condition.

• His past history of response to legal process.

• His prior criminal record.

• The identity of responsible members of the community who vouch for

the defendant's reliability.

• The nature of the current charge, the apparent probability of conviction

and the likely sentence, in so far as these factors are relevant to the risk

of nonappearance.

• Any other factors indicating the defendant's roots in the community.

Ark. R. Crim. P. 9.2.

Criminal defendants, however, are unlikely to be familiar with the law governing

pretrial release, making it difficult to raise mitigating facts. “Preliminary hearings can be

complex and difficult to navigate for lay individuals and many, following arrest, lack access

to other resources that would allow them to present their best case.” Caliste v. Cantrell,

329 F. Supp. 3d 296, 314 (E.D. La. 2018), aff’d, 937 F.3d 525 (5th Cir. 2019).

“Unrepresented defendants . . . are in no position at an initial bail hearing to present the

best, most persuasive case on why they should be released pending trial.” Booth v.

Galveston Cnty., 2019 WL 3714455, at *11 (S.D. Tex. Aug. 7, 2019), report and

recommendation adopted as modified, 2019 WL 4305457 (S.D. Tex. Sept. 11, 2019). “A

lawyer would unquestionably provide invaluable guidance to a criminal defendant facing

a bail determination.” Booth, 2019 WL 3714455, at *11. Here, for example, Judge Anglin

imposed bail in an amount much more than that requested by the prosecutor. That bail

was ultimately reduced when Plaintiffs each met with their respective attorneys more than

a month later.

An unrepresented defendant’s lack of legal knowledge often precludes effective

advocacy with respect to both release and bail. But it also risks more far-reaching

consequences. As Plaintiffs explain, “[a]n unrepresented defendant may offer up

information that is detrimental to his case in an attempt to persuade the judge to let him

out of jail.” (Doc. 34, p. 13).

Accordingly, the Court concludes that pretrial detention has a substantial impact

on the defendant’s right to a fair trial, and second, counsel provides critical assistance to

the accused during a bail hearing, thereby reducing the likelihood of detention and

conviction.

VI. JOINDER

The Public Defender Defendants argue the Amended Complaint must be

dismissed under Federal Rule of Civil Procedure 12(b)(7) because the state of Arkansas

is an indispensable party that cannot be joined under Rule 19(b).

Rule 19 mandates dismissal if (1) the State of Arkansas is an absent yet required

party; (2) the Court cannot join the State; and (3) the case cannot proceed “in equity or

good conscience” without the State. Id. The Court finds the State of Arkansas is not a

required party, and, even if it was, the Court may nevertheless proceed in “equity or good

conscience” without the State’s presence.

Under Rule 19(a), certain persons not named as parties to the litigation are

considered “required” and must be joined if feasible. Such absent-yet-required persons

include those whose absence leaves the court unable to “accord complete relief among

existing parties,” Fed. R. Civ. P. 19(a)(1)(A), and those with an interest in the action and

whose absence may impair the ability to protect that interest, id. 19(a)(1)(B)(i), or put an

existing party at risk of incurring inconsistent obligations due to that interest, id.

19(a)(1)(B)(ii). According to Defendants, the State of Arkansas is a required party under

any of the above definitions.

Public Defender Defendants claim that Arkansas is a required party because, in

its absence, “the court cannot accord complete relief among existing parties,” see Fed.

R. Civ. P. 19(a)(1)(A). Defendants argue: “The State of Arkansas relies exclusively on the

APDC to provide an appropriate level of legal services to indigent persons throughout the

entire state[,] . . . [and] [t]he APDC, in turn, relies exclusively on funding from the State to

carry out its work.” (Doc. 62, pp. 4–5). The relief requested by Plaintiffs would, according

to Defendants, “require additional public defenders and more funding, which requires

State approval.” Id. at p. 5 (citing Ark. Code Ann. §§ 16-87-215(3), 16-10-310, and 16-87-

301). In essence, they argue, “the relief Plaintiffs seek (i.e., a permanent injunction and a

declaration that ‘indigent persons must have appointed counsel present al bail hearings’)

is in essence a request for increased funding to the APDC.” Id. Accordingly, Defendants

maintain, such relief “cannot be accorded without adding the State of Arkansas as a

party.” Id.

Defendants also argue that Arkansas has an “interest in this matter, namely how

much funding is appropriated to the APDC and how those State funds are spent.” Id. They

contend that granting Plaintiffs’ request without the State’s involvement would “impede

that [sic] State’s ability to appropriate funding” and “put APDC at substantial risk of

incurring administrative, staffing, and other obligations that it could not fulfill absent the

State’s involvement.” Id. at pp. 5–6.

Each of these arguments relies on a mischaracterization of the relief sought by

Plaintiffs. Plaintiffs do not in fact seek “increased funding to the APDC.” Should the Court

award Plaintiffs the declaration they seek—that indigent persons must have counsel at

bail hearings—Defendants must, of course, comply. But how they do so is up to them.

The Court will not order Defendants to hire more public defenders, and there is no reason

to believe that an increase in hiring constitutes the sole method by which APDC can

remedy the challenged conduct. As Plaintiffs note, other Arkansas counties manage to

provide indigent defendants with legal representation at bail hearings.

To characterize Plaintiffs’ requested relief as “a request for increased funding”

would render the Ex parte Young exception to sovereign immunity meaningless in many

circumstances. As noted, “under Ex parte Young, a federal court may enjoin state officials

to conform their future conduct to the requirements of federal law, even though such an

injunction may have an ancillary effect on the state treasury.” Quern v. Jordan, 440 U.S.

332, 337 (1979). Defendants’ argument would mean that, where an injunction may have

an ancillary effect on the state treasury, it is therefore impossible for a court to afford

complete relief absent the participation of the state. Such a rule would result in many

more dismissals under Rule 12(b)(7) and seems at odds with much of sovereign immunity

doctrine. Defendants do not address any of these inconsistencies.

The actual issue here is whether claims brought against state officials may proceed

in the absence of the state itself. Defendants claim that awarding Plaintiffs’ their requested

relief would impede the state’s ability to appropriate funding. But each Defendant was

sued in their official capacity and is represented by either the Arkansas Attorney General’s

Office or private counsel paid for by the State of Arkansas. It is unclear why Defendants’

presence in this litigation is inadequate to represent the State’s interests.

Vil. CONCLUSION

Separate Defendants Parrish and Saxton’s (“Public Defender Defendants”) Motion

to Dismiss (Doc. 61) and Separate Defendant Anglin’s Motion to Dismiss (Doc. 47) are

DENIED.

IT IS SO ORDERED on this 5" day of August, 2023.

IMOTHY L OKS

UNITED STATES DISTRICT JUDGE

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