Karen McNeil v. Cmty. Probation Servs.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0305p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KAREN MCNEIL, et al., ┐

Plaintiffs, │

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│

INDYA HILFORT, on behalf of herself and all others │

similarly situated, > Nos. 19-5262

Plaintiff-Appellee, │

│

│

v. │

│

COMMUNITY PROBATION SERVICES, LLC, et al., │

│

Defendants,

│

│

GILES COUNTY, TENNESSEE; KYLE HELTON, Sheriff, │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Middle District of Tennessee at Columbia.

No. 1:18-cv-00033—William Lynn Campbell, Jr., District Judge.

Argued: December 10, 2019

Decided and Filed: December 23, 2019

Before: SUTTON, NALBANDIAN, and READLER, Circuit Judges.

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COUNSEL

ARGUED: Cassandra M. Crane, FARRAR & BATES, LLP, Nashville, Tennessee, for

Appellants. Elizabeth Rossi, CIVIL RIGHTS CORPS, Washington, D.C., for Appellee.

ON BRIEF: Cassandra M. Crane, Robyn Beale Williams, FARRAR & BATES, LLP,

Nashville, Tennessee, for Appellants. Elizabeth Rossi, Eric Halperin, CIVIL RIGHTS CORPS,

Washington, D.C., Matthew J. Piers, Chirag G. Badlani, Kate E. Schwartz, HUGHES SOCOL

PIERS RESNICK & DYM, LTD., Chicago, Illinois, David W. Garrison, Scott P. Tift,

BARRETT JOHNSTON MARTIN & GARRISON, LLC, Nashville, Tennessee, for Appellees.

No. 19-5262 McNeil, et al. v. Cmty. Probation Servs., et al. Page 2

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OPINION

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SUTTON, Circuit Judge. Several criminal defendants believe that the way Tennessee

sets the amount of bail for misdemeanor crimes violates federal due process. Under Tennessee

law, a county sheriff enforces probation-violation warrants and the bail amounts are established

by state law and set by a local judge. The district court granted the probationers a preliminary

injunction against the county’s and sheriff’s enforcement of the bail requirements. The county

and sheriff do not challenge the preliminary constitutional ruling. They argue for now only that

the probationers should have sued the state judges who determine the bail amounts instead of

suing the county and sheriff who enforce them. We affirm.

I.

Located in southern Tennessee and centered in Pulaski, Giles County contracted with

private probation companies to supervise people it convicted of misdemeanors. A group of

probationers sued Giles County, Sheriff Kyle Helton, the probation companies, and some of the

companies’ employees. They alleged problems with the misdemeanor probation system ranging

from RICO violations and civil conspiracy to improper debt collection and constitutional

violations stemming from private probation supervision.

Just one claim matters today. The probationers say that the county and sheriff violated

their “substantive right against wealth-based detention” by detaining them after arrest until they

pay bail. R. 41 at 117. The problem, say the probationers, is that the judges set the bail amount

“without reference to the person’s ability to pay,” outside the person’s presence, and without

determining whether the person poses “a danger to the community or a risk of flight.” Id.

The district court granted the plaintiffs a preliminary injunction against the county and

sheriff on this theory. The injunction prohibits them from “detaining any person on

misdemeanor probation . . . based on a secured financial condition of release.” R. 225 at 1. The

probationers acknowledge that a bail-based detention determined through a different process

would work. To that end, the injunction permits the county and sheriff to enforce bail

No. 19-5262 McNeil, et al. v. Cmty. Probation Servs., et al. Page 3

accompanied by evidence of the probationer’s ability to pay, the necessity of detention, and the

alternatives to bail.

Sheriff Helton and Giles County appeal. Accepting the preliminary constitutional ruling

for purposes of this appeal, they argue only that the district court permitted the plaintiffs to sue

the wrong party and thus imposed the wrong remedy. Instead of enjoining them from enforcing

the arrest warrants, they say, the court should have enjoined the judges from issuing them.

The contours of Giles County’s probation, arrest, and detention procedures are relatively

straightforward. When someone commits a Giles County misdemeanor and receives a sentence

that includes a term of supervised probation, she is assigned to a probation officer from one of

the probation companies. If all goes well, she checks in with her probation officer regularly and

probation ends on schedule. If not, the officer reports probation violations to the Giles County

court that convicted her of the misdemeanor in the first place—usually the General Sessions

Court, sometimes the Circuit Court.

If convinced a probation violation occurred, the judge issues a warrant requiring the

probationer to appear in court. Four warrant options are available. Sometimes the judge wishes

only to inform the probationer of the date of her probation violation hearing. In that case, the

judge marks the warrant “cite.” Other times, the officer must arrest the probationer but can

release her if she promises to appear in court. The judge marks those warrants “ROR”—“release

on recognizance.” When a promise isn’t enough, the arrested probationer must pay a designated

amount of bail in order to be released from jail. The judge writes that amount on the warrant.

Sometimes, the officer holds the probationer without the opportunity to pay bail. Judges mark

those warrants “hold.”

If the judge decides to set bail, the third category just mentioned, Tennessee law requires

him to set the amount “as low as the court determines is necessary to reasonably assure the

appearance of the defendant as required.” Tenn. Code Ann. § 40-11-118(a). It also spells out

things the judge must consider in determining that amount, including how long the person has

lived in the community, her prior criminal record, and her financial condition. Id.

No. 19-5262 McNeil, et al. v. Cmty. Probation Servs., et al. Page 4

§ 40-11-118(b)(1), (2), (7). Giles County judges consider those factors before arrest and outside

the probationer’s presence. Once a judge sets the bail amount, only a judge can change it.

When officers arrest someone for a probation violation on a warrant that specifies bail,

Sheriff Helton detains her unless she pays the amount printed on the warrant. The parties

estimate that Sheriff Helton collected bail from, or detained, about 130 people arrested for

probation violations (whether for underlying misdemeanors or felonies) between January and

August 2018.

The first opportunity to convince a judge to lower bail takes a few weeks. General

Sessions Court arrestees receive their first court appearance within 10 to 14 days, but they may

not challenge bail amounts until the second court appearance, 10 to 14 days after the first.

Circuit Court arrestees appear in court on one designated day a month, meaning the county can

detain them for up to 30 days without an opportunity to challenge the bail amounts.

II.

The stage set, we ask whether the district court preliminarily enjoined the right parties.

Four factors guide a district court’s decision to issue a preliminary injunction: whether the

plaintiffs will likely win down the road, whether an injunction would prevent the plaintiffs from

being irreparably harmed, whether an injunction would harm others, and how the injunction

would impact the public interest. Doe v. Univ. of Cincinnati, 872 F.3d 393, 399 (6th Cir. 2017).

This appeal turns on a narrow likelihood-of-success question and a legal one at that: Did the

plaintiffs sue the right parties?

The Eleventh Amendment and background principles of sovereignty ordinarily bar

lawsuits against States and state officials. See Alden v. Maine, 527 U.S. 706, 712–14 (1999).

Two exceptions to this rule (with rules and exceptions of their own) bear on this action.

Sovereign immunity protects States, not state subdivisions such as counties. Lincoln County v.

Luning, 133 U.S. 529, 530 (1890). And private parties may sue state officials to stop ongoing

constitutional violations. Ex parte Young, 209 U.S. 123, 155–56 (1908). Seeking to take

advantage of both exceptions, the probationers sued the county sheriff and the county.

No. 19-5262 McNeil, et al. v. Cmty. Probation Servs., et al. Page 5

A.

Start with the sheriff—and his amenability to suit. The short answer is that the plaintiffs

can sue the sheriff, and it makes no difference whether he acts for the State or the county. If he

acts for the State, Ex parte Young permits this injunction action against him. If he acts for the

county, neither sovereign immunity, qualified immunity, nor any other defense stands in the way

at this stage of the case.

The longer answer, the more precise answer that accounts for some of the sheriff’s

arguments, requires us to consider some details of the Tennessee bail system. The threshold

question is whether Sheriff Helton acted for the county or the State when he enforced the bail

amounts by detaining probationers until payment. Crabbs v. Scott, 786 F.3d 426, 429 (6th Cir.

2015). When a county official commits an alleged constitutional violation by “simply []

complying with state mandates that afford no discretion, they act as an arm of the State,” not the

county. Brotherton v. Cleveland, 173 F.3d 552, 566 (6th Cir. 1999).

Tennessee law suggests that Sheriff Helton acted for the State when he enforced the bail

amounts. The Tennessee Constitution creates the office of county sheriff. Tenn. Const. art. VII,

§ 1. And the state legislature prescribes a sheriff’s “qualifications and duties.” Id. The

legislature requires sheriffs to “obey the lawful orders and directions of the court[s]” as well as to

“[t]ake charge and custody” of the county jail “and of the prisoners therein . . . and keep them . . .

until discharged by law.” Tenn. Code Ann. § 8-8-201(a)(2)(A), (a)(3).

Discharged by law as told by whom? The Tennessee Supreme Court tells us. When

Tennessee law does not assign anyone the duty to determine whether a county jail detainee is

eligible for release, the county sheriff has the responsibility. Shorts v. Bartholomew, 278 S.W.3d

268, 281–82 (Tenn. 2009). When Tennessee law by contrast assigns that duty to an entity, the

sheriff “is not authorized to release” the county jail detainee until notified by the decisionmaker.

Id. at 279.

No. 19-5262 McNeil, et al. v. Cmty. Probation Servs., et al. Page 6

In this instance, the condition of release is the bail amount. Tennessee entrusts the

determination of that amount to its judges. Tenn. Code Ann. § 40-11-118. That means

Tennessee directs Sheriff Helton to hold probationers in the county jail until they pay bail. Tenn.

Code Ann. § 8-8-201; Shorts, 278 S.W.3d at 281–82. And that, in turn, means he acts for the

State when he takes the challenged action, detaining probationers under judge-set bail amounts.

That leaves the question of whether the sheriff can be sued in an injunction action as an

official enforcing state policies. In accordance with Ex parte Young, 209 U.S. at 155–56,

sovereign immunity does not stand in the way of a lawsuit against a public official “actively

involved with administering” the alleged violation. Doe v. Dewine, 910 F.3d 842, 849 (6th Cir.

2018) (quoting Russell v. Lundergan-Grimes, 784 F.3d 1037, 1048 (6th Cir. 2015)). Tennessee

statutes command that involvement when they place the sheriff in charge of keeping detainees in

the county jail. Tenn. Code Ann. § 8-8-201(a)(3). As a factual matter, the parties agree that

Sheriff Helton carries out his statutory responsibility by detaining arrestees in the county jail.

All in all, Sheriff’s Helton’s actions come within Ex parte Young’s domain.

The Sheriff disputes this conclusion on a few fronts. He claims that his detention of the

probationers is not the real violation. The true problem, he says, is the way the judges set bail

amounts. There’s something to the point. Think of the difficulty of describing the alleged

violation without mentioning a judge’s action. Fair though the point is, it does not come to grips

with another reality—that an alleged violation may involve two actors and the potential

immunity of one does not necessarily free the other from suit. Consider the alleged violation to

be two actions. Action one: A judge determines a bail amount without considering ability to pay

or adequacy of alternatives. Action two: Sheriff Helton detains the probationer until she pays

the bail amount. The alleged constitutional violation is detention on an improperly determined

bail amount. The plaintiffs might have employed a different theory and sued the judges, if not

immune themselves, for their part in carrying out the alleged harm. But “the plaintiff is the

master of the complaint” and free to choose between legal theories. Caterpillar, Inc. v. Williams,

482 U.S. 386, 398–99 (1987). Absent some other bar, they are free to sue the sheriff.

No. 19-5262 McNeil, et al. v. Cmty. Probation Servs., et al. Page 7

Sheriff Helton insists that this approach unduly expands Ex parte Young by permitting an

injunction against an official who implements a constitutional violation caused by another

official, citing our observation that courts “have not read Young expansively.” Children’s

Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996). The

probationers, he says, should have sought an injunction against the judges themselves, and we

should not expand Ex parte Young when the probationers could receive relief by structuring their

lawsuit differently. But this objection suffers from the same flaw as the last. The probationers

are free to structure their complaint as they wish. Plus, this approach does not expand Ex parte

Young anyway. There are plenty of cases allowing injunction actions like this one. See, e.g.,

Doe, 910 F.3d at 846, 848–49 (permitting suit under Ex parte Young against state actors at

multiple points in the enforcement chain of the challenged statute); Diaz v. Mich. Dep’t of Corr.,

703 F.3d 956, 958–59, 966 (6th Cir. 2013) (permitting Ex parte Young suit against state actors at

three levels of allegedly unlawful action).

Truth be told, Ex parte Young more often gets plaintiffs in trouble for suing an official

too far removed from implementing a policy than for selecting an official too intimately involved

in its execution. That’s because Ex parte Young permits only lawsuits that can be meaningfully

described as being against the named official, not those that “merely mak[e] him a party as a

representative of the state, and thereby attempt[] to make the state a party.” Ex parte Young, 209

U.S. at 157. Suing an official too far up the chain from the challenged action was precisely the

problem in the case on which Helton and the county ground their argument. Children’s

Healthcare, 92 F.3d at 1415. Plaintiffs sued the Ohio Attorney General to compel her to

disregard statutory limitations on enforcing other statutes. Id. at 1416. We concluded that “Ohio

law delegates the enforcement of the challenged statutes to local prosecutors, not the Attorney

General.” Id. That meant the attorney general lacked the “connection to the enforcement of the

statutes” that Ex parte Young requires. Id. at 1417.

It also remains unclear whether the plaintiffs could structure their lawsuit by suing the

judges who set the bail amounts. Judges have absolute immunity from suits based on their

judicial acts, except in matters over which they clearly lack jurisdiction. Mireles v. Waco, 502

U.S. 9, 9, 11–12 (1991) (per curiam). Although declaratory relief is sometimes available against

No. 19-5262 McNeil, et al. v. Cmty. Probation Servs., et al. Page 8

judges, our sister circuits have pointed out that there is usually no case or controversy between

judges acting as adjudicators and litigants displeased with litigation outcomes. In re Justices of

Supreme Court of P.R., 695 F.2d 17, 21–24 (1st Cir. 1982); Brandon E. ex rel. Listenbee v.

Reynolds, 201 F.3d 194, 197–200 (3d Cir. 2000). We have not staked out our own position on

the matter, but we have cited that position favorably in unpublished opinions. See, e.g., Cooper

v. Rapp, 702 F. App’x 328, 333–34 (6th Cir. 2017). And the Supreme Court reversed us on a

threshold issue in our closest-to-relevant published decision. Tesmer v. Granholm, 333 F.3d 683,

701–04 (6th Cir. 2003) (en banc), rev’d on standing, Kowalski v. Tesmer, 543 U.S. 125 (2004).

All of this leaves the matter more complex and less settled than defendants suppose,

especially given that “we err on the side of granting [judicial] immunity in close cases.” Norfleet

v. Renner, 924 F.3d 317, 319 (6th Cir. 2019) (citation omitted). For this reason too, we cannot

fault the plaintiffs for taking the well-trodden path marked by Ex parte Young instead of charting

a new-to-our-circuit course through the comparative jungle of judicial immunity.

B.

The lawsuit also may proceed against the county for now. The county does not deny that

it employs the sheriff. Nor does it deny the sheriff’s involvement in the challenged detention.

Nor does it claim he acted against its commands when he detained the plaintiffs. Nor does

sovereign immunity protect counties from lawsuits. Luning, 133 U.S. at 530; Jinks v. Richland

County, 538 U.S. 456, 466 (2003).

The county, it is true, may be able to raise defenses to this § 1983 claim. It may be able

to show, for example, that no constitutional violation occurred or that a county policy or custom

did not trigger it. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694–95 (1978). But a few

considerations counsel against resolving that defense today. At this phase of the case, the county

has accepted plaintiffs’ allegations that the bail system violates the federal constitution but

reserved its right to defend the system during the permanent injunction phase of the case.

There’s value in assessing the role of any county policy in these alleged constitutional violations

in the context of a concrete debate about what those violations are or are not. Discovery may

shed light on whether there is a pertinent county policy or not, as the only facts in evidence are a

No. 19-5262 McNeil, et al. v. Cmty. Probation Servs., et al. Page 9

stipulation solely for preliminary injunction purposes. And it’s hard to see a practical difference

between affirming a preliminary injunction against the sheriff alone and affirming it against both

the county and the sheriff, at least in the context of a case in which neither one thus far defends

the constitutionality of the practices here. All of that said, the district court may wish to resolve

the Monell defense promptly on remand.

We affirm.