Farella v. District Judge A.J. Anglin

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

ABIGAIL FARELLA; LOGAN W. MURPHY;

and All Others Similarly Situated PLAINTIFFS

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

DISTRICT JUDGE A.J. ANGLIN;

GREGG PARRISH; and JAY SAXTON DEFENDANTS

MEMORANDUM OPINION AND ORDER

This litigation arises from a bail hearing procedure in Benton County District Court

that Plaintiffs Abigail Farella and Logan W. Murphy maintain is constitutionally defective.

They argue under the Sixth and Fourteenth Amendments that indigent criminal

defendants have a right to legal representation during the judicial officer’s determination

of bail—and that Defendants violated that right by failing to timely appoint counsel before

their bail was set. Defendants are Benton County District Judge A.J. Anglin; Gregg

Parrish, Executive Director of the Arkansas Public Defender Commission; and Jay

Saxton, Chief Benton County Public Defender—all sued in their official capacities.

Plaintiffs contend that their injury was not an exception, but the rule. They now

move pursuant to Federal Rule of Civil Procedure 23 to certify a class of “those indigent

individuals who will appear before Judge Anglin for a bail hearing and will not have

appointed counsel present to represent them.” Doc. 87, p. 1 (cleaned up); see also Doc.

34, ¶ 31. Plaintiffs’ Motion for Class Certification (Doc. 87) is fully briefed and ripe for

review.1 For the reasons stated herein, the Motion is GRANTED.

1 See Doc. 86 (Plaintiffs’ Brief in Support); Docs. 90–91 (Defendants Parrish and Saxton’s

Joint Response and Brief in Support); Doc. 92 (Judge Anglin’s Response); Doc. 93

(Plaintiffs’ Reply to Judge Anglin).

I. BACKGROUND2

Plaintiffs’ First Amended Complaint (Doc. 34) describes two nearly identical

instances of the alleged procedural defect in Judge Anglin’s court. The first was set in

motion on May 20, 2022, when Bentonville Police Department officers arrested Ms.

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

paraphernalia, and misdemeanor shoplifting. She alleges that she was transported to the

Benton County Jail and placed in a cell. Bentonville Police Corporal Kevin Albert filed a

sworn probable cause affidavit later that day and attached a report indicating that the

State joined him in requesting that a $2,500 bond be set for Ms. Farella. On May 22,

2022, Ms. Farella appeared before Judge Anglin pursuant to Arkansas Rule of Criminal

Procedure 8.1 for an initial hearing, during which he set her bail at $10,000 cash or

corporate surety and scheduled arraignment—Ms. Farella’s next court date—for June 27,

2022. After bail was set and the arraignment scheduled, Judge Anglin found Ms. Farella

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

According to Plaintiffs, the procedural defect is as follows: Whereas the

prosecutor’s recommendation as to bond amount and pretrial release conditions was

considered at Ms. Farella’s bail hearing, she was not afforded a parallel opportunity to

contest that recommendation; a public defender was not present at the hearing and was

not appointed until after Judge Anglin set her bond amount and pretrial release conditions.

2 Unless otherwise indicated, the Plaintiffs and Judge Anglin agree on the following facts,

and Defendants Parrish and Saxton lack information sufficient to admit or deny them.

Plaintiffs contend that this procedure violated Ms. Farella’s right to counsel under the

Sixth and Fourteenth Amendments.

One month later, on June 20, 2022, Bentonville Police arrested Mr. Murphy for

felony fleeing and misdemeanor reckless driving, and the alleged procedural defect

reoccurred. Bentonville Police submitted a sworn probable cause affidavit with a report

from another officer stating that the State joined him in requesting that Mr. Murphy’s bond

be set at $25,000. During Mr. Murphy’s bail hearing the next day, Judge Anglin set bail at

$40,000 cash or corporate surety, set arraignment for July 25, 2022, found Mr. Murphy

indigent, and appointed a public defender to represent him at future proceedings.

Plaintiffs allege that Judge Anglin again considered the prosecutor’s recommendation

concerning Mr. Murphy’s bond amount and pretrial release conditions without allowing a

public defender a parallel opportunity to advocate on Mr. Murphy’s behalf.

Plaintiffs maintain that Ms. Farella’s and Mr. Murphy’s experiences are the norm.

Judge Anglin conducts felony and misdemeanor bail hearings in multiple Benton County

courts for thirteen calendar weeks per year throughout his four-year term. Roughly

twenty-five percent of bail hearings in Benton County are conducted by Judge Anglin,

translating to a total caseload upwards of one thousand cases annually. Plaintiffs, as well

as Mr. Parrish and Mr. Saxton, agree that public defenders do not attend bail hearings

before Judge Anglin; however, Judge Anglin denies that allegation. If Plaintiffs’ allegations

are true, then indigent defendants’ bail amounts are set and pretrial release conditions

are decided without attorney representation—despite the undisputed fact that State

prosecutors are permitted to join police in requesting bond amounts. Ultimately, Plaintiffs

seek a declaration from this Court that Judge Anglin’s bail hearing procedure violates the

Sixth and Fourteenth Amendments and an injunction that would require defense

counsel’s presence and participation in the bail determination for indigent defendants—

though such relief reaches far beyond the present Motion. In re Zurn Pex Plumbing Prod.

Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011) (“[A] decision to certify a class is far from a

conclusive judgment on the merits . . . .”).

Here, Plaintiffs seek to certify a class of indigent, unrepresented criminal

defendants, which they define as: “(1) pre-trial detainees; (2) who have or will appear

before District Judge A.J. Anglin; (3) for a bail / pre-trial release hearing under Arkansas

Rules of Criminal Procedure 8-9; (4) who are indigent; and (5) do not have appointed

[public defender] representation at that hearing.” (Doc. 86, p. 3). Plaintiffs request that the

Court designate Ms. Farella and Mr. Murphy as Class Representatives and Mr. Doug

Norwood and Ms. Alison Lee of Norwood & Norwood P.A. as Lead Class Counsel.

II. LEGAL STANDARD

The party seeking class certification bears the burden of proving that the

requirements of Rule 23 are satisfied. See Walmart Stores v. Dukes, 564 U.S. 338, 350

(2011). Pursuant to Rule 23, certifying a class action requires two steps. First, under Rule

23(a), a class action may be maintained if the following prerequisites are met: (1) the

class is so numerous that joinder of all members is impracticable, (2) there are questions

of law or fact common to the class, (3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class, and (4) the representative parties will

fairly and adequately protect the interests of the class. Moreover, “[a]n implicit

requirement for any class certification inquiry involves a court's assessment as to the

ascertainability of the class.” Fochtman v. DARP, Inc., 2019 WL 406146, at *3 (W.D. Ark.

Jan. 31, 2019). To be ascertainable, the proposed class description must be sufficiently

definite to identify class members by objective criteria. See Sandusky Wellness Ctr., LLC

v. Medtox Sci., Inc., 821 F.3d 992, 996–97 (8th Cir. 2016).

Second, the plaintiff must satisfy the requirements of one of Rule 23(b)’s three

subsections. See In Re St. Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005). At issue

here, Rule 23(b)(2) applies where the opposing party acts or refuses to act on grounds

applying generally to the class, such that final injunctive relief or corresponding

declaratory relief is appropriate for the class as a whole and would provide relief to each

member of the class. See Dukes, 564 U.S. at 345–46, 360. Class claims under Rule

23(b)(2) must be cohesive, “in that ‘the relief sought must perforce affect the entire class

at once.’” Ebert v. General Mills, Inc., 823 F.3d 472, 480 (8th Cir. 2016) (quoting Dukes,

564 U.S. at 361–62) (emphasis in original).

The district court retains “broad discretion in determining whether to certify a class,

recognizing the essentially factual basis of the certification inquiry and . . . the district

court’s inherent power to manage and control pending litigation.” In re Zurn Pex Plumbing

Prods. Liab. Litig., 644 F.3d at 616 (cleaned up). Nevertheless, district courts must

undertake “a rigorous analysis” to ensure that the requirements of Rule 23 are met. Gen.

Tel. Co. Sw. v. Falcon, 457 U.S. 147, 161 (1982). “Frequently that ‘rigorous analysis’ will

entail some overlap with the merits of plaintiffs’ underlying claim[s].” Dukes, 564 U.S. at

351. The “preliminary inquiry of the class certification stage may require the court to

resolve disputes going to the factual setting of the case.” Luiken v. Domino’s Pizza, LLC,

705 F.3d 370, 372 (8th Cir. 2013).

III. DISCUSSION

A. Rule 23(a) Prerequisites

1. Numerosity and Ascertainability

The Court begins its discussion by assessing whether the class is so numerous

that joinder of all members is impracticable. Plaintiffs bear the burden of establishing that

numerosity exists; however, “no arbitrary rules regarding the necessary size of classes

have been established.” Belles v. Schweiker, 720 F.2d 509, 515 (8th Cir. 1983). Many

factors are relevant to the numerosity inquiry: most obviously, the “number of persons in

the proposed class” but also “the nature of the action, the size of individual claims, the

inconvenience of trying individual suits, and any other factor relevant to the practicability

of joining all putative class members.” Paxton v. Union Nat’l Bank, 688 F.2d 552, 560–61

(8th Cir. 1982).

Plaintiffs allege that their experiences are representative of a class that meets the

numerosity requirement because Judge Anglin’s bail hearing procedure will be replicated

throughout his felony and misdemeanor caseload—which Judge Anglin admits is

“upwards of one thousand cases per year.” Doc. 34, ¶ 23; see also Doc. 79, ¶ 22.

Defendants counter that Plaintiffs’ conclusion—that there will thus be thousands of class

members—is speculative, conclusory, and uncertain. See Doc. 91, p. 5; Doc. 92, p. 7.

But given Judge Anglin’s admitted caseload, that position defies common sense.

The numerosity requirement asks whether joinder of all potential class members

is impracticable. Here, Plaintiffs and Judge Anglin agree that he was elected to a four-

year term, which runs from January 1, 2021, to January 1, 2025. And they agree that

Judge Anglin holds bail hearings for thirteen weeks each year, with seven hearings per

week (i.e., one per day). See Doc. 92, pp. 3-4. This amounts to more than ninety bail

hearings per year.

The parties’ filings imply that multiple defendants appear at each bail hearing, and

as many as eighty percent of criminal defendants are declared indigent, according to one

Department of Justice estimate.3 That estimate may not be precisely extensible to Judge

Anglin’s Court; it is certainly possible that less than eighty percent of the criminal

defendants that appear in his bail hearings are indigent. But even if Judge Anglin declares

only one criminal defendant indigent per bail hearing, on average, that would amount to

more than 360 unrepresented indigent defendants during his four-year term. A class of

360 (and likely many more) indigent criminal defendants is certainly too numerous for

joinder to be practicable.4 Fochtman v. DARP, Inc., 2019 WL 406146, at *4 (W.D. Ark.

Jan. 31, 2019) (“It defies common sense to argue that 180 separate lawsuits brought by

similarly-situated individuals”—half of the minimum estimated class size here—“litigating

the same issues of liability, would somehow be more efficient and more cost-effective

than a class action.”). Particularly because Plaintiffs seek an injunction and declaratory

judgment, numerosity counsels that it will be far more administrable to litigate this matter

on a class-wide basis than individually. The Court finds that Plaintiffs have met their

3 See Caroline Wolf Harlow, Bureau of Justice Statistics Special Report: Defense Counsel

in Criminal Cases 5 (2000) https://bjs.ojp.gov/content/pub/pdf/dccc.pdf

[https://perma.cc/YU7V-FS9P] (describing a 1992 and 1996 study, which found that about

eighty percent of defendants charged with a felony in the Nation’s seventy-five most

populous counties reported having public defenders or assigned counsel after being

declared indigent).

4 To avoid confusion, the Court notes that its pleadings-based algebra is merely

illustrative, and that the number 360 is only significant as an exemplar of the

reasonableness of Plaintiffs’ logic. Similarly reasonable calculations would yield the same

outcome: a class too numerous for joinder to be practicable.

burden by showing evidence leading to the logical inference that a great many indigent

criminal defendants will continue to appear before Judge Anglin at bail hearings without

counsel, thus satisfying the numerosity factor. Halbach v. Great-West Life & Annuity Ins.

Co., 2007 WL 1018658, at *3 (E.D. Mo. Apr. 2, 2007) (Plaintiffs are not required to “specify

an exact number or to prove the identity of each class member, rather, the plaintiffs must

only show a reasonable estimate of the number of class members.”).

Turning next to ascertainability, the Eighth Circuit, “unlike most other courts of

appeals, has not outlined a . . . separate, preliminary requirement.” See Sandusky

Wellness Ctr., 821 F.3d at 996. Rather, the Eighth Circuit “simply adheres to a rigorous

analysis of the Rule 23 requirements, which includes that a class ‘must be adequately

defined and clearly ascertainable.’” Id. (quoting Rule 23). The focus of this threshold

inquiry is on whether the proposed class definition identifies class members by objective

criteria. See id.; Fochtman, 2019 WL 406146, at *3 (citing Bynum v. Dist. of Columbia,

214 F.R.D. 27, 31 (D.D.C. 2003)).

The Court is satisfied that Plaintiffs’ proposed class is readily ascertainable.

Plaintiffs’ class definition is comprised solely of objective criteria: “(1) pre-trial detainees,

(2) who have or will appear before District Judge A.J. Anglin, (3) for a bail / pre-trial

release hearing under Arkansas Rules of Criminal Procedure 8-9, (4) who are indigent,

and (5) do not have appointed (public defender) representation at that hearing.” (Doc. 86,

p. 3). And in Postawko v. Missouri Department of Corrections, the Eighth Circuit upheld

a similarly structured class of incarcerated plaintiffs. 910 F.3d 1030, 1036 (8th Cir. 2018)

(“[1] All those individuals in the custody of MDOC, [2] now or in the future, who have been,

or will be, [3-4] diagnosed with chronic HCV, as that term is defined medically, [5] but who

are not provided treatment with direct acting antiviral drugs.”). Here, like in Postawko, the

proposed criteria objectively define: (1) the broad group of plaintiffs from which the class

is drawn, (2) the class’s temporal parameters, (3-4) additional narrowing parameters, and

(5) the constitutional injury suffered by class members. Using these criteria, the Court can

easily determine who is a member of the proposed class and who is not. As the court

reasoned in Fochtman, “In order to make a finding that a class will be so numerous that

joinder will be impractical, the Court does not need to consult its crystal ball . . . .” 2019

WL 406146, at *3. “The numerosity requirement asks, simply, how many individuals meet

the class definition. Here, the number is [at least 360], and the class members’ identities

are easily ascertainable” or will be as Judge Anglin’s term progresses. Id.

2. Commonality

The commonality inquiry “requires the plaintiff to demonstrate that the class

members ‘have suffered the same injury.’” Dukes, 564 U.S. at 349 (quoting Falcon, 457

U.S. at 157). However, commonality does not require “that every question of law or fact

be common to every member of the class.” Paxton, 688 F.2d at 561. In fact, as the

Supreme Court noted in Dukes, “even a single common question will do.” 564 U.S. at 359

(cleaned up). To establish commonality, class members’ “claims must depend upon a

common contention” that must “be of such a nature that it is capable of class-wide

resolution—which means that determination of its truth or falsity will resolve an issue that

is central to the validity of each of the claims in one stroke.” Id. at 350.

Here, both the facts and the law are common to the class. Factually, Plaintiffs and

their proposed class members’ claims arise where there exist an arrest,

recommendations as to bond and pretrial release conditions from the State, and an initial

appearance at bail hearing in which an indigent defendant is unaccompanied by

appointed counsel. And legally, Plaintiffs and their proposed class members share

common claims: alleged violations of their Sixth Amendment right to counsel and the

Fourteenth Amendment’s due process and equal protection clauses. There is thus a

common question of law as to whether the right to counsel attaches under the Sixth

Amendment at the bail hearing and subsequently whether the alleged denial of that right

to counsel constitutes a due process or equal protection violation. Accordingly, the Court

finds that the commonality requirement is satisfied.

3. Typicality

The typicality requirement is satisfied where the proposed class members’ claims

“are based on the same legal or remedial theory.” Paxton, 688 F.2d at 561–62; see also

Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1275 (8th Cir. 1990) (similar). Put simply,

“[t]he typicality inquiry asks whether the named Plaintiffs’ claims are typical of those of

the rest of the class.” Fochtman, 2019 WL 406146, at *5. Here, Defendants argue that

factual differences between Plaintiffs and potential class members’ claims are fatal to the

typicality inquiry; specifically, that proposed class members will face different underlying

charges in different courts, albeit in front of Judge Anglin. This argument misses the mark.

Plaintiffs have demonstrated that the proposed class shares similar factual and legal

claims. And they have shown that their alleged harm is typical—indeed, identical—to the

harm that will be visited upon their proposed class members, regardless of their

respective charges or courts: the denial of their right to counsel under the Sixth and

Fourteenth Amendments. The Court finds that the typicality requirement is satisfied.

4. Adequacy of Representation

i. Adequacy of Class Representatives

The inquiry as to the adequacy of the class representation under Rule 23(a)(4) is

similar to the typicality inquiry. The Court must ask “whether the representative parties

will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4).

Further, the Court must determine whether “(1) the class representatives have common

interests with the members of the class, and (2) whether the class representatives will

vigorously prosecute the interests of the class through qualified counsel.” Paxton, 688

F.2d at 562–63.

The Court finds that Plaintiffs will fairly and adequately represent the interests of

the class. Ms. Farella and Mr. Murphy both filed affidavits affirming their willingness to

actively participate in this litigation through its conclusion and promising to actively and

faithfully act as class representatives on behalf of all class members. See Docs. 93-1, 93-

2. They state clearly that:

I am a class representative because . . . Judge Anglin failed to provide

me with an attorney at my pre-trial release hearing. The harm that was

done to me needs to be prevented from happening to other indigents in

the future. I have been an active participant in this litigation from the

beginning and will be to its conclusion. I am in this case for the long haul

. . . .

See id. Plaintiffs’ affidavits evince their willingness to “vigorously prosecute” Defendants’

alleged constitutional violations on behalf of the class. Consequently, the Court finds that

Plaintiffs will adequately represent its interests.

ii. Adequacy of Counsel

Next, Rule 23(g)’s class counsel requirement provides that the Court must

consider:

(i) the work counsel has done in identifying or investigating potential

claims in the action;

(ii) counsel's experience in handling class actions, other complex

litigation, and the types of claims asserted in the action;

(iii) counsel's knowledge of the applicable law; and

(iv) the resources that counsel will commit to representing the class . . . .

Fed. R. Civ. P. 23(g).

Relying on Rattray v. Woodbury County, Iowa, 253 F.R.D. 444 (N.D. Iowa 2008),

aff'd sub nom., 614 F.3d 831 (8th Cir. 2010), Defendants argue that Plaintiffs’ counsel are

inadequate to represent the class’s interests because they waited over a year to file for

class certification. While Defendants’ argument is not without merit, the Court finds this

case distinguishable. In Rattray, the court noted that delay in pursuing class certification

had potential to prejudice the plaintiffs and potential class members and weighed such

prejudice against counsel’s ability, experience, and qualifications to conduct the litigation.

See id. at 456–57. The court found that proposed class counsel’s ability and experience

did not outweigh the prejudice because there was no sufficient reason for the delay,

counsel had no experience litigating class actions, and the plaintiffs’ motion to certify the

class was filed after an agreed-upon, court-mandated deadline. See id.

Analogous facts are absent here; any prejudice caused by delay in seeking

certification is outweighed by Plaintiffs’ counsel’s experience and active engagement in

this litigation. The affidavits from Doug Norwood and Alison Lee state that Norwood &

Norwood P.A. has class action experience, complex litigation experience, and “unlimited

financial resources to see this litigation to its logical conclusion.” See Docs. 86-1, 86-2.

The Court’s deadline to file class certification motions was extended pursuant to a joint

motion from the parties, and the present Motion for Class Certification was timely

submitted by the parties’ agreed-upon deadline. See Doc. 75 (Amended Case

Management Order); Doc. 81 (Joint Motion to Extend Deadline for Class Certification);

Doc. 85 (Text Only Order extending the deadline for class certification). Further, the Court

believes that both Plaintiffs and Defendants were clear from the outset of litigation that

Plaintiffs intended to pursue class certification. Even assuming, arguendo, that it would

have been prudent to seek certification earlier, delay in pursuing class certification is not

per se fatal to adequacy of representation; delay can be reasonable in some

circumstances. Cf. Eastwood v. S. Farm Bureau Cas. Ins. Co., 291 F.R.D. 273 (W.D. Ark.

2013) (finding delay in seeking class certification reasonable when the plaintiffs were

actively engaged in the litigation, specifically because the plaintiffs’ motion to certify class

was on time per the 26(f) report and there was voluminous discovery during the delay

period). The Court thus finds that Doug Norwood and Alison Lee of Norwood & Norwood

P.A. satisfy Rule 23(g)’s class counsel requirements.

B. Rule 23(b)(2) Requirements

“[S]ubdivision (b)(2) was added to Rule 23 in 1966 in part to make it clear that civil-

rights suits for injunctive or declaratory relief can be brought as class actions.” 7A Charles

Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. Civ. § 1776 (4th ed.

2023). To certify a class under Rule 23(b)(2), the party opposing the class must have

“acted or refused to act on grounds that apply generally to the class, so that final injunctive

relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

Fed. R. Civ. P. 23(b)(2). The Eighth Circuit has held Rule 23(b)(2) certification appropriate

where plaintiffs seek injunctive relief “on grounds generally applicable to the class.”

Paxton, 688 F.2d at 563 (citing United States Fidelity & Guar. Co. v. Lord, 585 F.2d 860,

875 (8th Cir. 1978)); see also Ebert v. Gen. Mills, Inc., 823 F.3d 472, 480 (8th Cir. 2016)

(holding that Rule 23(b)(2) class certification clearly applies only when a “single injunction

or declaratory judgment would provide relief to each member of the class”).

The Court finds that Rule 23(b)(2) is satisfied here. Plaintiffs explicitly seek

declaratory and injunctive relief and make no request for money damages. (Doc. 34, pp.

16–17; Doc. 87, p. 1). If the Court granted that relief, e.g., by declaring Judge Anglin’s

current bail hearing procedure unconstitutional and ordering an injunction mandating that

indigent defendants at future bail hearings be represented by public defenders, such relief

would apply cohesively to each proposed class member. Postawko, 2017 WL 3185155,

at *13 (holding that a similar class “satisfies Rule 23(b)(2) because Defendants’ policies

apply generally to the class so that the requested injunctive and declaratory relief would

provide relief to all class members”). Indeed, Plaintiffs’ claims and requested remedy are

the “touchstone of a (b)(2) class.” See Ebert, 823 F.3d at 480; cf. Dukes, 564 U.S. at 361

(quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997)) (“‘Civil rights

cases against parties charged with unlawful, class-based discrimination are prime

examples’ of what (b)(2) is meant to capture.”); see generally 7A Wright, Miller & Kane,

supra at § 1776.1 (“Rule 23(b)(2) has been utilized to protect a variety of constitutional

rights” through declaratory and injunctive relief).

IV. CONCLUSION

Pursuant to the findings set forth above, IT IS ORDERED that Plaintiffs Abigail

Farella and Logan W. Murphy’s Motion for Class Certification (Doc. 87) is GRANTED.

IT IS FURTHER ORDERED that:

(1) The certified class is defined as: “(1) pretrial detainees, (2) who have or will

appear before District Judge A.J. Anglin, (3) for a bail or pre-trial release

hearing under Arkansas Rules of Criminal Procedure 8-9, (4) who are indigent,

and (5) do not have appointed (public defender) representation at that hearing.”

(2) Plaintiffs Abigail Farella and Logan W. Murphy are designated as Class

Representatives.

(3) Norman Douglas Norwood and Allison Lee of Norwood & Norwood, P.A. are

appointed Class Counsel.

IT IS SO ORDERED on this 7" day of May, 2024.

ae

UNITED STATES DISTRICT JUDGE

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