Opposition Brief — Edward Little, Individually and on Behalf of All Others Similarly Situated, Petitioner v. Andre' Doguet, et al.

No. 23-291

In the Supreme Court of the United States

_____________

EDWARD LITTLE,

Individually and on Behalf All Others Similarly

Situated,

Petitioner,

v.

ANDRE’ DOGUET, ET AL,

_____________

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

_____________

BRIEF IN OPPOSITION

____________

JEFF LANDRY

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third Street

Baton Rouge, LA 70802

(225) 326-6766

murrille@ag.louisiana.gov

ELIZABETH MURRILL*

Solicitor General

*Counsel of Record

i

QUESTIONS PRESENTED

Under Younger v. Harris, principles of equity

and comity require federal courts to abstain from

adjudicating claims seeking to restrain ongoing state

criminal prosecutions when the movant has an

adequate remedy at law and will not suffer irreparable

injury if denied relief. 401 U.S. 37, 43–44 (1971). Like

the petitioners in another case currently pending

before this Court—Daves v. Dallas County, No. 23-97

(petition for cert. filed July 31, 2023)—Petitioner

Edward Little seeks to impose a host of mandatory

procedural requirements on state officials making bail

decisions. The federal district court denied relief on

the merits of Little’s claims. While the appeal of this

case was pending, the full Fifth Circuit, sitting en

banc, issued a decision in Daves explaining Younger’s

application in the bail context. The Fifth Circuit panel

in this case then applied Daves and dismissed this

case. The questions presented are:

(1)

Should federal courts entertain claims

demanding they oversee the procedures state

courts follow in making bail determinations,

where state law provides mechanisms for

pretrial

detainees

to

assert

federal

constitutional claims in state court to challenge

their pretrial detention?

(2)

In light of significant changes to the bail

procedures of Louisiana’s 15th Judicial District

since Little’s arrest and release, does the

narrow exception to the mootness doctrine for

claims capable of repetition, yet evading review

apply to Little—who was not subject to the new

procedures?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF CONTENTS .............................................ii

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION ........................................................ 1

STATEMENT .............................................................. 3

I.

Bail Practices in Louisiana and the 15th JDC 3

II. Procedural History............................................ 6

REASONS FOR DENYING THE PETITION .......... 11

I. The Younger Question Does Not Warrant this

Court’s Review. ................................................. 11

A. No circuit split exists over whether Younger

applies to programmatic challenges to state

court bail practices. ...................................... 12

B. The Fifth Circuit’s Younger abstention

holding is correct........................................... 15

C. Louisiana law affords detainees ample

opportunities to raise their constitutional

claims. ........................................................... 19

iii

i.

Pretrial detainees can move the state

district court for reconsideration of the bail

amount. ..................................................... 20

ii. Pretrial detainees can invoke the

supervisory jurisdiction of appellate courts

within bail cases. ...................................... 21

iii. Pretrial detainees can seek a writ of habeas

corpus. ....................................................... 24

iv. Pretrial detainees can seek a writ of

mandamus. ............................................... 27

II. Little’s Petition Has Vehicle Problems. ......... 29

A. Significant changes to the 15th JDC’s bail

procedures moot Little’s claims.................... 29

B. Little conceded the adequacy of Louisiana’s

procedures under Daves, and the Fifth

Circuit accepted his concession without any

analysis. ........................................................ 31

CONCLUSION .......................................................... 32

iv

TABLE OF AUTHORITIES

Cases

24th Judicial Dist. Indigent Def. Bd. v. Molaison,

522 So.2d 177 (La. App. 5th Cir. 1988) ................. 27

Arevalo v. Hennessy,

No. 4:17-cv-06676-HSG, 2017 WL 6558596 (N.D.

Cal. Dec. 22, 2017) ........................................... 12, 14

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) .................................................. 30

Ass’n of La. Bail Underwriters v. Johnson,

615 So. 2d 1345 (La. Ct. App.), writ denied, 617 So.

2d 1184 (La. 1993).................................................. 27

Bd. of Sch. Comm’rs v. Jacobs,

420 U.S. 128 (1975) ................................................ 30

Cutter v. Wilkinson,

544 U.S. 709 (2005) ............................................ 2, 32

Daves v. Dallas Cnty.,

22 F.4th 522 (5th Cir. 2022) .................................... 4

Daves v. Dallas Cnty.,

64 F.4th 616 (5th Cir. 2023) ........................ 1, 10, 16

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) .................................................. 30

Gerstein v. Pugh,

420 U.S. 103 (1975) .......................................... 17, 18

v

Herlitz Const. Co. v. Hotel Invs. of New Iberia, Inc.,

396 So. 2d 878 (La. 1981)....................................... 21

In re: Judge Guy E. Bradberry,

2022-01828, 2023 WL 2212198 (La. 2/24/23) ........ 21

Little v. Doguet,

No. 20-30159 (5th Cir. Apr. 19, 2023) ................... 10

Madison v. Ward,

2000-2842 (La. App. 1 Cir. 7/3/02), 825 So. 2d 1245

................................................................................ 24

Mangin v. Auter,

360 So. 2d 577 (La. Ct. App. 1978) ........................ 21

Middlesex Cnty. Ethics Comm. v. Garden State Bar

Ass’n,

457 U.S. 423 (1982) .......................................... 12, 31

Moore v. Sims,

442 U.S. 415 (1979) ................................................ 19

O’Shea v. Littleton,

414 U.S. 488 (1974) ...... 12, 13, 14, 15, 16, 17, 18, 30

Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1 (1987) .................................................... 19

Preiser v. Newkirk,

422 U.S. 395 (1975) ................................................ 30

Sosna v. Iowa,

419 U.S. 393 (1975) ................................................ 30

vi

State ex rel Wilson v. State,

413 So. 2d 498 (La. 1982)....................................... 26

State ex rel. Lay v. Cain,

96-1247 (La. App. 1 Cir. 2/14/97), 691 So. 2d 135.....

.......................................................................... 24, 25

State ex rel. Smith v. Henderson,

315 So. 2d 275 (La. 1975)....................................... 25

State v. Chaney,

384 So. 2d 442 (La. 1980)................................. 25, 26

State v. Chester,

18-504 (La. App. 5 Cir. 9/6/18)............................... 22

State v. Chivers,

198 La. 1098, 5 So. 2d 363 (1941) .......................... 23

State v. Collins,

19-429 (La. App. 5 Cir. 10/25/19), 2019 WL

5538575 .................................................................. 22

State v. Edwards,

2013-0665 (La. App. 4 Cir. 1/22/14), 133 So. 3d 132

................................................................................ 22

State v. Gamberella,

633 So. 2d 595 (La. Ct. App. 1993) ........................ 22

State v. Glenon,

164 La. 163, 113 So. 803 (1927) ............................. 25

vii

State v. Golden, 546 So. 2d 501, 504 (La. Ct.

App.),writ denied, 547 So. 2d 365 (La. 1989) ........ 23

State v. Gomilla,

131 La. 286, 59 So. 402 (1912) ............................... 25

State v. Goodie,

2017-693 (La. App. 3 Cir. 8/23/17), 226 So. 3d 1130

................................................................................ 23

State v. Halverson,

2021-01592 (La. 12/21/21), 329 So. 3d 276............ 22

State v. Helaire,

2017-802 (La. App. 3 Cir. 10/25/17), 230 So. 3d 253

................................................................................ 23

State v. Jones,

252 La. 903, 215 So. 2d 108 (1968) ........................ 23

State v. Landry,

583 So.2d 911 (La. App. 1st Cir.1991) ................... 22

State v. Neisler,

633 So. 2d 1224 (La. 1994) ..................................... 20

State v. Poirier,

2018-467 (La. App. 3 Cir. 7/11/18), 251 So. 3d 486

................................................................................ 23

State v. Robinson,

360 So. 2d 880 (La. 1978)....................................... 23

viii

State v. Watkins,

399 So. 2d 153 (La. 1981)....................................... 26

State v. Wertheimer,

183 La. 388, 163 So. 545 (1935) ............................. 25

Walker v. City of Calhoun,

901 F.3d 1245 (11th Cir. 2018) .................. 12, 13, 14

Wallace v. Kern,

520 F.2d 400 (2d Cir. 1975) ....................... 16, 17, 18

Weinstein v. Bradford,

423 U.S. 147 (1975) ............................................ 2, 30

Younger v. Harris,

401 U.S. 37 (1971) i, 1, 2, 8, 9, 10, 11, 12, 13, 14, 15,

17, 19, 29, 31, 32

Statutes

42 U.S.C. § 1983 .......................................................... 8

La. C.Cr. P. art. 230.1 ............................................... 26

La. C.Cr. P. art. 312 .................................................... 5

La. C.Cr. P. art. 314 .................................................... 3

La. C.Cr. P. art. 315 .................................................... 4

La. C.Cr. P. art. 316 .................................................... 4

La. C.Cr. P. art. 319 .......................................... 2, 5, 20

ix

La. C.Cr. P. art. 351 .................................................. 24

La. Code Civ. Proc. art. 3861 .................................... 27

La. Code Civ. Proc. art. 3862 .................................... 28

Other Authorities

Albert Tate, Jr., Supervisory Powers of the Louisiana

Courts of Appeal, 38 Tul. L. Rev. 429 (1964) ........ 21

Constitutional Provisions

La. Const. art. V, § 10................................................ 21

1

INTRODUCTION

Petitioner Edward Little originally brought this

class-action suit in 2017 with the hope of effectively

ending cash bail for indigent arrestees in Louisiana’s

15th Judicial District Court. Since Little filed this

suit, the 15th JDC voluntarily revoked its bail

schedule and changed its policy so that nearly all

misdemeanor arrestees are automatically released

with a summons. Today, only those who have

committed serious crimes are subject to cash bail, and

they each receive an individualized hearing from the

15th JDC Commissioner.

In this case, the Western District of Louisiana

held a bench trial and rendered judgment in favor of

the defendants. Before the Fifth Circuit could consider

the merits of Little’s appeal, however, the full Fifth

Circuit issued an en banc opinion in Daves v. Dallas

County that effectively mandated abstention under

Younger v. Harris, 401 U.S. 37 (1971) in this case.

Daves v. Dallas Cnty., 64 F.4th 616, 620 (5th Cir.

2023) (en banc).

Although Louisiana law is different from Texas

law, Little employs his petition to challenge the Fifth

Circuit’s en banc decision in Daves. The Court should

reject Little’s challenge, largely for the reasons that it

should reject the petitioners’ challenge in Daves,

which is currently pending before the Court. See Brs.

in Opp’n., Daves v. Dallas Cnty., No. 23-97 (petition

for cert. filed July 31, 2023).

In all events, the reasons for abstaining under

Younger are even stronger in this case than they are

in Daves. Louisiana law provides more opportunities

2

for pretrial detainees to challenge bail proceedings in

criminal cases. If a detainee wants to challenge the

Commissioner’s bail decision, Louisiana law provides

a mechanism to request relief from a judge of the 15th

JDC. See La. Code Crim. Proc. art. 319A. If unsatisfied

with the judge’s ruling, the detainee can invoke the

supervisory jurisdiction of a state appellate court to

consider the bail decision. Id. art. 312H. All of this

occurs within the criminal proceeding. Even outside of

criminal proceedings, pretrial detainees can invoke

state habeas and mandamus mechanisms to protect

their rights.

In the Fifth Circuit, Little conceded that

Louisiana’s procedures are adequate under Daves, so

the panel did not consider whether Louisiana’s laws

are sufficiently adequate for purposes of Younger

abstention. See Pet. App. 12a–13a. If this Court grants

certiorari here, it will be the first court to consider the

adequacy of Louisiana’s procedures. That is a problem

because this is a “court of review, not of first view.”

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).

Finally, Little spent only a week in detention

before he secured his release. Ordinarily, that would

moot his claims. Little relies on the “transitory claims”

exception to the mootness rule to maintain this suit in

federal court. See Weinstein v. Bradford, 423 U.S. 147,

149 (1975). But since Little’s release, the bail

procedures in the 15th JDC have changed

significantly. The narrow exception to the mootness

rule should not apply because Little was never

subjected to the procedures now in place.

3

STATEMENT

I.

Bail Practices in Louisiana and the

15th JDC

1. In Louisiana, the law when Little filed suit

was—and still is—that “[d]istrict courts and their

commissioners” wield “the authority to fix bail.” La.

Code Crim. Proc. art. 314. The law charges them with

setting bail at “an amount that will ensure the

presence of the defendant and the safety of any other

persons and the community.” Id. art. 316. Article 316

of the Louisiana Code of Criminal Procedure lists ten

factors for district courts and commissioners to

consider when setting the amount of bail, including

the seriousness of the offense, the defendant’s prior

criminal record, and “the defendant’s ability to make

bail.”1 Id.

When Little was arrested, the 15th JDC used a

1 Here is the complete list:

(1) The seriousness of the offense charged, including but not

limited to whether the offense is a crime of violence or

involves a controlled dangerous substance.

(2) The weight of the evidence against the defendant.

(3) The previous criminal record of the defendant.

(4) The ability of the defendant to give bail.

(5) The nature and seriousness of the danger to any other

person or the community that would be posed by the

defendant's release.

(6) The defendant’s voluntary participation in a pretrial drug

testing program.

(7) The absence or presence in the defendant of any controlled

dangerous substance.

(8) Whether the defendant is currently out on a bail

undertaking on a previous felony arrest for which he is

awaiting institution of prosecution, arraignment, trial, or

sentencing.

4

bail schedule. Unless bail was “fixed by a schedule,”

then the law required—and still does—that “the

amount of bail shall be specifically fixed in each case.”

La. Code Crim. Proc. art. 315. A bail schedule operated

“like a menu, associating various prices for release

with different types of crimes and arrestees.” Daves v.

Dallas Cnty., 22 F.4th 522, 530 (5th Cir. 2022). At the

time of Little’s arrest and incarceration, a bail

schedule applied to many misdemeanor offenses in

Lafayette. Judge Kristian Earles—former chief judge

of the 15th JDC—promulgated the schedule in 2013.

Under the schedule, for example, the misdemeanor of

simple battery carried a price of $500.

If somebody was arrested on a warrant in the

15th JDC, the bail amount was initially determined by

the Commissioner before the warrant was issued. If

the crime was a misdemeanor governed by the bail

schedule, the Commissioner would set bail in

accordance with the schedule. If the warrant was for a

person who committed a felony, or some other offense

not listed on the bail schedule, the Commissioner

would determine an initial bail amount consistent

with Article 316 of the Louisiana Code of Criminal

Procedure.

For people arrested without a warrant, the

Commissioner would call the parish jail each day of

the year to set their bonds. See Pet. App. 4a. An

employee of the Lafayette Parish Sheriff’s Office at the

jail would describe the facts leading to the arrest to

(9) Any other circumstances affecting the probability of

defendant’s appearance.

(10) The type or form of bail.

La. Code Crim. Proc. art. 316.

5

the Commissioner, who then would set bail over the

phone after deciding if probable cause supported the

arrest and continued detention.

The Commissioner also would conduct First

Appearance hearings by video conference every

Tuesday and Friday. Those hearings would provide

the Commissioner with the opportunity to verify the

name and address of the arrestee, among other things.

After their First Appearances, arrestees could

file a motion to modify the bail amount to a judge of

the 15th JDC. See La. Code Crim. Proc. art. 319. And

a person held without bail or unable to post bail could

invoke the supervisory jurisdiction of the court of

appeal. See id. art. 312H.

2. Since Little initiated this class-action

litigation in mid-2017, the bail practices of the 15th

JDC have changed significantly. For example, in 2018,

the judges of the 15 JDC issued an en banc order

rescinding the bail schedule (which, again, only

applied to misdemeanor offenses). In its place, the en

banc court ordered the Sheriff to automatically release

most misdemeanor arrestees with a summons. See

Pet. App. 4a. That automatic-release provision

remains in force today.

There are two exceptions to the automatic-release

provision. First, arrestees who have been arrested

three times or more in the past six months are not

automatically released. And, second, people who had

been arrested for a certain set of serious

misdemeanors—including battery on a police officer,

sexual battery, and carnal knowledge of a juvenile—

are not automatically released. The misdemeanor

6

arrestees subject to those two exceptions have their

bail bonds set by a judge or the Commissioner using

the factors under Article 316 of the Louisiana Code of

Criminal Procedure, in the same manner as for felony

arrests.

Even for arrestees not subject to automatic release,

i.e., felony arrestees and misdemeanor arrestees

subject to one of the two exceptions, there have been

very significant changes to the jail procedures. Today,

the Commissioner still uses the Article 316 factors and

also can receive financial information from arrestees

prior to their First Appearances, via a “Pretrial

Indigency Determination Affidavit” (PIDA), which

collects financial information from the arrestee. The

Commissioner also has started using a form entitled

“Release Order in Lieu of/as Modification to Money

Bond” during First Appearances. Pet. App. 5a. The

purpose of the form is to provide another means for

people to obtain release if they cannot post bond. The

form lists several alternatives to money bail, including

(1) release on “personal surety,” an “adjusted” bond

amount, (2) “[r]elease on Court-approved home

monitoring via GPS system,” (3) referral to the

Sheriff’s Office to see if they qualify for the Sheriff

Offender Tracking Program (“STOP”), and (4) an

“other” category. Pet. App. 25. According to the

Commissioner, in the “other” category he can, for

example, refer the arrestee to an inpatient drug

treatment program. Pet. App. 27a.

II.

Procedural History

1. Little is a felony arrestee who was never

subject to the bail schedule. He was arrested for felony

7

theft on June 3, 2017, and the authorities held him at

the Lafayette Parish Correctional Center. The next

day, the Commissioner set Little’s bail as a $3,000

secured bond. Little did not have $3,000, or $375 to

pay a bonding agent, and so he remained in the

correctional facility for about a week, until June 10,

2017.

2. During the week he was in the parish jail in

2017, Little filed a class-action complaint in the

United States District Court for the Middle District of

Louisiana against former 15th JDC Commissioner

Frederick, former 15th JDC Chief Judge Earles, and

Lafayette Parish Sheriff Mark Garber.2 Little

contended that they violated his “fundamental right to

pretrial liberty” by conditioning his freedom on paying

money “without inquiry into and findings concerning

[his] ability to pay or non-financial alternative

conditions.” Pet. App. 17a. This, according to Little,

violated the Fourteenth Amendment’s Due Process

and Equal Protection clauses.

The day after filing his complaint, Little moved

the district court to certify a class of people “who are

or will be detained in the Lafayette Parish

Correctional Center because they are unable to pay a

sum of money required by post-arrest secured money

bail setting procedures.” Pet. App. 16a. Ultimately,

Defendants did not oppose the certification of the

class, and the district court granted Little’s motion to

certify.

2 Today, André Doguet is the Commissioner and Laurie Hulin is

the Chief Judge.

8

The Commissioner and former Judge Earles

(Judicial Defendants)—who are represented by the

Louisiana Attorney General’s office—moved to

dismiss the complaint. Among other arguments, they

urged the Court to abstain under Younger. The district

court denied the Judicial Defendants’ motion to

dismiss. Sheriff Garber also moved to dismiss, urging

the application of Younger abstention and explaining

that liability cannot attach under 42 U.S.C. § 1983

because the Sheriff has no role in setting the amount

of bail.

In light of the Sheriff’s motion to dismiss, Little

filed a motion to supplement his complaint, which the

district court granted. In his supplemental complaint,

Little provided detailed descriptions of the STOP

Program. Little alleged that, through STOP, Sheriff

Garber acts as a final policymaker in the screening,

selection, and approval for release of pretrial

detainees.

Sheriff Garber filed a new motion to dismiss.

The matter was referred to a magistrate judge, who

issued a report and recommendation concluding that

Little failed to state a claim against Sheriff Garber.

The judge reasoned that liability could not attach to

the Sheriff (who was sued only in his official capacity)

under § 1983 because he does not qualify as a

municipal policymaker. The district court adopted the

recommendation and dismissed Sheriff Garber from

the suit.

The Judicial Defendants moved for summary

judgment, and Little moved for partial summary

judgment. For the first time, he raised a claim for the

9

provision of counsel in pretrial detention hearings

under the Sixth Amendment. The district court denied

the summary judgment motions of Little and the

Judicial Defendants and scheduled the case for a

bench trial.

After trial, the district court found that

“Defendants have made significant changes in their

bail procedures since this lawsuit was initiated.” Pet.

App. 47a. These changes to the procedures were not

merely “cosmetic.” Pet. App. 48a. Instead, they were

“true possible alternatives to money bail, including

recommendation to the Sheriff’s STOP program,

release on personal surety, ankle monitoring, home

monitoring, or other options, including, for example,

an inpatient drug treatment program.” Pet. App. 48a.

The Commissioner “now considers an arrestee’s

indigency or financial condition if the arrestee raises

it.” Pet. App. 48a–49a. “The current procedures now

result in the automatic release of most misdemeanor

arrestees, which is more than the Constitution

requires.” Pet. App. 49a. In light of the changes, the

district court determined that any of Little’s requests

for declaratory or injunctive relief based on the 15th

JDC’s practices from 2017—including the use of the

bail schedule—were moot. The district court also

considered and rejected the merits of Little’s claims as

they relate to the Judicial Defendants’ current

practices. While the district court held that

Louisiana’s current bail practices do not violate the

Fourteenth Amendment, the district court did not

consider the adequacy of Louisiana’s current practices

because adequacy is not a merits question. Adequacy

is part of the Younger abstention analysis, which was

10

not before the district court. See Younger, 401 U.S. at

43 (“[C]ourts of equity should not act . . . when the

moving party has an adequate remedy at law . . . .”).

3. Little appealed. After the parties briefed the

case and the court heard oral argument, the en banc

Fifth Circuit issued its opinion in Daves v. Dallas

County. The Daves en banc opinion held that the

plaintiffs’ claims in that case—which are virtually

identical to Little’s claims—“should never have been

brought in federal court” because federal courts should

“abstain from revising state bail bond procedures on

behalf of those being criminally prosecuted, when

state procedures allow the accused adequate

opportunities to raise their federal claims.” 64 F.4th at

620.

The Daves en banc opinion prompted the Fifth

Circuit panel in this case to call for post-argument

supplemental briefing about the effect of Daves on this

litigation. The Judicial Defendants and the Sheriff

explained that Little’s claims are virtually identical to

the claims that the Daves plaintiffs made in their

complaint. See Judicial Defendants/Appellees’

Supplemental Brief at 2–4, Little v. Doguet, No. 2030159 (5th Cir. Apr. 19, 2023). Moreover, the

opportunities for detainees in Louisiana to raise

constitutional claims are more robust than they are in

Texas. Little conceded that Younger abstention here

applies under Daves. See Pet. App. 12a.

Based in part on that concession, the panel

ultimately concluded that Younger abstention was

required in this case. The panel did not offer any

analysis about the uncontested adequacy of

11

Louisiana’s procedures for the purposes of Younger.

Pet. App. 12a–13a.

4. Little petitions this Court for a writ of

certiorari, focusing his arguments on the Fifth

Circuit’s en banc opinion in Daves.

REASONS FOR DENYING THE PETITION

I.

THE YOUNGER QUESTION DOES NOT WARRANT

THIS COURT’S REVIEW.

To start, as the respondents in Daves v. Dallas

County recently explained in their briefs in opposition

to this Court, nothing about the en banc Fifth Circuit’s

holding that requires Younger abstention in this case

merits this Court’s review. See Br. in Opp., Daves v.

Dallas Cnty., No. 23-97. The Younger abstention

doctrine is grounded in “[t]he basic doctrine of equity

jurisprudence that courts of equity should not act, and

particularly should not act to restrain a criminal

prosecution, when the moving party has an adequate

remedy at law and will not suffer irreparable injury if

denied equitable relief.” 401 U.S. at 43–44. It also

rests on principles of “comity”: “that is, a proper

respect for state functions, a recognition of the fact

that the entire country is made up of a Union of

separate state governments, and a continuance of the

belief that the National Government will fare best if

the States and their institutions are left free to

perform their separate functions in their separate

ways.” Id. at 44.

Honoring these bedrock principles of equity and

comity, this Court has required lower federal courts to

abstain from adjudicating a case in which: (1) the

12

federal case would interfere with “an on-going state

judicial proceeding”; (2) the state proceeding

“implicate[s] important state interests”; and (3) “there

[is] an adequate opportunity in the state proceedings

to raise constitutional challenges.” Middlesex Cnty.

Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,

432 (1982).

Little does not seem to dispute that the Fifth

Circuit correctly identified this established standard.

He does not even discuss the overarching standard at

all. Cf. Pet. 12–31. Instead, Little jumps right to a

putative circuit split regarding how the standard has

been applied in the bail context. See Pet. 12–17. No

such circuit split exists. And, both in Daves and in this

case, the Fifth Circuit faithfully applied this Court’s

precedents.

A. No circuit split exists over whether

Younger

applies

to

programmatic

challenges to state court bail practices.

Little’s chief argument for review is that the en

banc Fifth Circuit’s holding in Daves—that lawsuits

like this one interfere with ongoing state judicial

proceedings—conflicts with the holdings of the

Eleventh Circuit in Walker v. City of Calhoun, 901

F.3d 1245 (11th Cir. 2018), and the Ninth Circuit in

Arevalo v. Hennessy, 882 F.3d 763 (9th Cir. 2018).

There is no split.

This Court has already considered how Younger

abstention applies in the context of structural federal

court challenges to state bail practices. In O’Shea v.

Littleton, a putative class of indigent plaintiffs claimed

that several judges (among other defendants) had

13

violated their constitutional rights through the

“discriminatory enforcement and administration of

criminal justice,” including in bond-setting hearings.

414 U.S. 488, 491–92 (1974). As relevant here, this

Court held that “an injunction aimed at controlling or

preventing the occurrence of specific events that might

take place in the course of future state criminal trials”

violated the principles of equity, comity, and

federalism announced in Younger just three years

earlier. Id. at 499–500. Such relief, the Court

explained, “would contemplate interruption of state

proceedings

to

adjudicate

assertions

of

noncompliance” and thus “require . . . continuous

supervision by the federal court over the conduct of the

[judges] in the course of future criminal trial

proceedings,” and effectively impose “an ongoing

federal audit of state criminal proceedings.” Id. at

500–01. “[S]uch a major continuing intrusion . . . into

the daily conduct of state criminal proceedings is in

sharp conflict with the principles of equitable

restraint” embodied in our federal system generally

and in Younger specifically. Id. at 502.

Five years ago, the Eleventh and Ninth Circuits

concluded that O’Shea did not apply in the cases

before them, which involved narrow procedural

challenges to bail decisions made by state courts,

because those more modest requests did not rise to the

level of interference contemplated by O’Shea.

In Walker, the Eleventh Circuit declined to

abstain under Younger because the plaintiff “merely

[sought] prompt bail determinations for himself and

his fellow class members.” 901 F.3d at 1254. The

plaintiffs did not “ask for the sort of pervasive federal

14

court supervision of State criminal proceedings that

was at issue in O’Shea,” but instead “a prompt pretrial

determination of a distinct issue, which will not

interfere with subsequent prosecution.” Id. at 1255.

In Arevalo, the Ninth Circuit declined to apply

Younger to a single detainee’s petition for a writ of

habeas corpus after the trial court summarily set his

bail at $1.5 million. 882 F.3d at 764–65. Far from a

class action seeking systemic change, the facts of

Arevalo were so unique that the State of California

agreed that the habeas petition should be granted. Id.

at 765. It was the district court that raised Younger

and chose sua sponte to abstain based on O’Shea.

Arevalo v. Hennessy, No. 4:17-cv-06676-HSG, 2017

WL 6558596, at *2 (N.D. Cal. Dec. 22, 2017). The

Ninth Circuit found O’Shea distinguishable precisely

because the individualized relief requested—granting

one writ of habeas corpus to a single prisoner—could

“be achieved without an ongoing intrusion into the

state’s administration of justice.” Arevalo, 882 F.3d at

766 n.2.

Contrary to Little’s insistence , the en banc

Fifth Circuit’s Daves decision is entirely consistent

with Walker and Arevalo for the simple reason that

the relief Little seeks is different from the relief

provided in Walker and Arevalo. See Pet. 12–16.

Unlike the litigants in those cases, Little—who has

not been subject to bail proceedings in years—seeks an

order mandating detailed structural changes to bail

practices on a class-wide basis without any regard to

the current state of the law in Louisiana or the 15th

JDC.

15

B. The Fifth Circuit’s Younger abstention

holding is correct.

Lacking any genuine circuit split, Little’s

petition amounts to little more than a request for error

correction. But there is no error for this Court to

correct. Both the panel here and the en banc Fifth

Circuit in Daves properly held that the first, second,

and third prongs of the Younger-abstention test were

met in this case and that abstention was warranted.

As the Court explained in O’Shea, “an

injunction aimed at controlling or preventing the

occurrence of specific events that might take place in

the course of future state criminal trials” is precisely

the type of relief that the principles of equity and

comity undergirding Younger forbid. 414 U.S. at 500.

That is because such an injunction would “require for

its enforcement the continuous supervision by the

federal court over the conduct of” state courts because

“any member of [the] class who appeared as an

accused” could assert that the state-court judge was

“in contempt of the federal court’s injunction. Id. at

501–02. But “such a major continuing intrusion of the

equitable power of the federal courts into the daily

conduct of state criminal proceedings is in sharp

conflict with the principles of equitable restraint

which this Court has recognized.” Id. at 502.

And, as even Little appears to concede, the

Fifth, Ninth, Eleventh Circuits all agree that, under

O’Shea, such an intrusion is only exacerbated when

the federal district court backs up its order by

imposing

ongoing

reporting

or

supervisory

components. See Pet. 13–14. So does the Second

16

Circuit. See Wallace v. Kern, 520 F.2d 400 (2d Cir.

1975).

Like the plaintiffs in O’Shea, Little has asked

the federal courts to overhaul the bail rules in the 15th

JDC. Specifically, Little seeks a mandate, enforceable

by a federal judgment for contempt, that any statecourt bail hearing include an “inquiry into or findings

concerning ability to pay,” “consideration of nonfinancial alternatives” to cash bail, and substantive

findings that a particular disposition “is necessary to

meet a compelling government interest.” See Pet. App.

9a; see also Pet. 15 n.2. That substantive finding is,

according to Little, operationalized through written

findings on the record stating that no condition or

combination of conditions could reasonably assure the

appearance of the person in court and the safety of any

other person or the community. See Pet. App. 110a.

As a result, not only does Little seek to impose

the kind of “procedures which fix the time of, the

nature of and even the burden of proof,” in bail

hearings, see Wallace, 520 F.2d at 406, but he also

aims to create a novel substantive right that would

dictate (at minimum) the content of judicial decisions

concerning bail, Pet. 15 n.2. If granted, Little’s

requested injunctive relief “would contemplate

interruption of state proceedings to adjudicate

assertions of noncompliance” with federal-courtmandated procedures, O’Shea, 414 U.S. at 500, and

thereby “open[] the federal courts any time an arrestee

cries foul,” Daves, 64 F.4th at 630.

Little admittedly seeks relief just like “the

‘periodic reporting’ system” that this Court in O’Shea

17

held “would constitute a form of monitoring of the

operation of state court functions that is antipathetic

to established principles of comity” under Younger.

414 U.S. at 501.

Little insists that he is merely seeking a

“negative injunction, leaving jurisdictions ample

flexibility regarding implementation.” Pet. 30. Not so.

As in O’Shea, Little’s requested relief is “aimed at

controlling or preventing the occurrence of specific

events that might take place” at future bail hearings

in the 15th JDC. 414 U.S. at 500. After all, any class

member who believes the Commissioner’s bail hearing

or subsequent bail order did not comply with the

injunction would presumably be empowered to seek a

federal-court determination of whether a cash-bail

requirement was truly necessary. See id. at 502. This

is precisely the “untoward interference with the state

judicial system [that] violates [the] established

principles of comity and federalism” announced in

O’Shea and Younger. Wallace, 520 F.2d at 404.

Little maintains that, notwithstanding O’Shea,

programmatic challenges to state bail practices are

exempt from Younger because of a single footnote in

Gerstein v. Pugh, 420 U.S. 103 (1975). Pet. 17–20. But

that brief, two-sentence footnote does not aid him.

The holding of Gerstein is that “the Fourth

Amendment requires a timely judicial determination

of probable cause as a prerequisite to [pretrial]

detention.” 420 U.S. at 126. But in a footnote, the

Court stated that the district court correctly

determined that Younger abstention was not

warranted because (1) “[t]he injunction [seeking a

18

timely probable-cause hearing] was not directed at the

state prosecutions as such,” (2) a challenge to pretrial

detention could not be raised “in defense of the

criminal prosecution,” and (3) “[t]he order to hold

preliminary hearings could not prejudice the conduct

of the trial on the merits.” Id. at 108 n.9. Little’s efforts

to apply that reasoning here takes that footnote out of

context: the statement was made while rejecting the

district court’s view that a probable-cause hearing

must “be accompanied by the full panoply of adversary

safeguards—counsel,

confrontation,

crossexamination, and compulsory process for witnesses.”

Id. at 119. The Court rejected that view because “state

systems of criminal procedure vary widely,” “[t]here is

no single preferred pretrial procedure,” and because of

the “desirability of flexibility and experimentation by

the States.” Id. at 123. These are precisely the type of

comity-based concerns that animated the Court’s

decision in Younger itself. Cf. 401 U.S. at 44. And even

the authority on which petitioners rely to manufacture

a circuit split could not “agree that the Gerstein Court

intended to overrule O’Shea in a footnote which does

not even discuss it.” Wallace, 520 F.2d at 408.

Rather than merely asking for a timely

probable cause hearing like in Gerstein, 420 U.S. at

126, Little seeks to dictate the conduct of bail hearings

and the outcome of bail decisions. That request is more

akin to the relief that Gerstein rejected based on

comity-based considerations. See id. at 119, 123. The

Fifth Circuit was correct to do the same here.

19

C. Louisiana law affords detainees ample

opportunities to raise their constitutional

claims.

When determining whether a detainee has an

adequate opportunity to challenge the legality of his

detention, “[t]he pertinent issue is whether [a federal

plaintiff’s] constitutional claims could have been

raised in the pending state proceedings.” Moore v.

Sims, 442 U.S. 415, 425 (1979). “[T]he burden on this

point rests on the federal plaintiff to show ‘that state

procedural law barred presentation of [its] claims.’”

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987)

(quoting Moore, 442 U.S. at 432). “[A]bstention is

appropriate unless state law clearly bars the

interposition of the constitutional claims.” Moore, 442

U.S. at 425–26. As this Court explained in Younger

itself, “[t]he accused should first set up and rely upon

his defense in the state courts, even though this

involves a challenge of the validity of some statute,

unless it plainly appears that this course would not

afford adequate protection.” 401 U.S. at 45; accord

Pennzoil, 481 U.S. at 17.

Little has never argued that “state law clearly

bars” presentation of his constitutional claims. Moore,

442 U.S. at 425–26. Nor could he. Louisiana law

provides

adequate

opportunities

to

raise

constitutional claims. Little’s petition exclusively

targets Daves, which arose in Texas, and offers no

discussion whatsoever of the unique procedural tools

available to detainees in Louisiana.

20

As discussed below, Little conceded that

Louisiana’s procedures were adequate under the Fifth

Circuit’s en banc decision in Daves. The Fifth Circuit

accepted this concession without conducting any of its

own analysis on the point. For the following reasons,

Little’s concession and the Fifth Circuit’s acceptance

of it were right.

i.

Pretrial detainees can move the state

district court for reconsideration of

the bail amount.

To begin, it is worth reiterating that most

misdemeanor detainees now go free immediately in

the 15th JDC. But even when the 15th JDC

Commissioner sets money bail for a detainee, a

panoply of procedural tools remains available under

state law to raise state and federal challenges to the

bail amount and incarceration.

The Louisiana Code of Criminal Procedure

provides that “the court having trial jurisdiction over

the offense charged, on its own motion or on motion of

the prosecuting attorney or defendant, for good cause,

may either increase or reduce the amount of bail, or

require new or additional security.” La. Code Crim.

Proc. art. 319(A) (emphasis added). In other words, if

a pretrial detainee believes that the Commissioner set

her money bail too high, she can move the trial court

to reduce the amount of bail. See State v. Neisler, 633

So. 2d 1224, 1229 (La. 1994) (“[I]nherent in the

authority to fix bail is, in general, the authority to

modify bail if necessary.”).

And if the pretrial detainee or his surety is

unhappy with the type of security, she can move the

21

trial court to substitute it with another form of

security. Id. art. 319(B) (“The defendant or his surety

may . . . with approval of the court in which the

prosecution is pending, substitute another form of

security authorized by this Code.”).

ii.

Pretrial detainees can invoke the

supervisory jurisdiction of appellate

courts within bail cases.

If a pretrial detainee is “held without bail or

unable to post bail,” Louisiana law expressly allows

her to “invoke the supervisory jurisdiction of the court

of appeal on a claim that the trial court has improperly

refused bail or a reduction of bail in a bailable case.”

Id. art. 312. This article of the Louisiana Code of

Criminal Procedure provides pretrial detainees with

an exceptionally powerful tool to raise state and

federal claims relating to bail.

In Louisiana, the supervisory writ is a potent

procedural mechanism that grants an appellate court

“plenary power in its discretion to intervene at any

stage of a proceeding in a trial court.” Mangin v. Auter,

360 So. 2d 577, 577 (La. Ct. App. 1978); see La. Const.

art. V, § 10 (granting an appellate court “supervisory

jurisdiction over cases which arise within its circuit”);

Albert Tate, Jr., Supervisory Powers of the Louisiana

Courts of Appeal, 38 Tul. L. Rev. 429, 430 (1964) (“This

constitutional grant of supervisory authority has

always been held to be plenary, unfettered by

jurisdictional requirements, and exercisable at the

complete discretion of the court.”); accord In re: Judge

Guy E. Bradberry, 2022-01828, 2023 WL 2212198 at

*1 (La. 2/24/23) (Crichton, J., concurring).

22

A pretrial detainee need not, indeed must not,

wait until final judgment in the trial court before

invoking the supervisory jurisdiction of the appellate

court. See Herlitz Const. Co. v. Hotel Invs. of New

Iberia, Inc., 396 So. 2d 878 (La. 1981) (“A court of

appeal has plenary power to exercise supervisory

jurisdiction over district courts and may do so at any

time, according to the discretion of the court.”

(emphasis added)). If a pretrial detainee waits to

challenge a trial court’s bail decision until the

appellate court gains appellate jurisdiction (as

opposed to supervisory jurisdiction) through the usual

appellate process, the detainee’s bail claim becomes

moot. See State v. Edwards, 2013-0665 (La. App. 4 Cir.

1/22/14), 133 So. 3d 132, 134 (“[T]he issue of the

amount of her bail on appeal is now moot.”); State v.

Landry, 583 So.2d 911 (La. App. 1st Cir.1991); State

v. Gamberella, 633 So. 2d 595, 608 (La. Ct. App. 1993).

Moreover, a litigant invoking the supervisory

jurisdiction of an appellate court can seek expedited

review. See La. Unif. R. Ct. App. 4-4. Thus, a pretrial

detainee can gain immediate appellate review of a

trial court’s bail decision.

Louisiana appellate courts routinely exercise

their supervisory jurisdiction to grant relief in bail

cases via supervisory writ. See, e.g., State v.

Halverson, 2021-01592 (La. 12/21/21), 329 So. 3d 276,

278 (“We find that, pursuant to the dictates of [La.

Code Crim. Proc.] art. 316, as well as the constitutions

of Louisiana and the United States, defendant’s total

bail obligation should not exceed $200,000.”); State v.

Collins, 19-429 (La. App. 5 Cir. 10/25/19), 2019 WL

5538575 (finding that, after balancing the ten bail

23

factors of La. Code Crim. Proc. art. 316, “Relator’s

$250,000 bond [is] excessive”); State v. Chester, 18-504

(La. App. 5 Cir. 9/6/18) (“[W]e hereby grant this writ

application, vacate the trial court’s ruling that

summarily denied relator’s Motion for Bail, and

remand the matter to the trial court to conduct a

contradictory hearing on relator’s Motion for Bail

within five days . . . .”); State v. Golden, 546 So. 2d 501,

504 (La. Ct. App.) (“We grant the application in each

instance insofar as the bail is limited to being cash

only.”), writ denied, 547 So. 2d 365 (La. 1989); State v.

Robinson, 360 So. 2d 880, 881 (La. 1978) (granting

writ and reinstating bail when trial judge erred by

revoking bail after a grand jury indictment); State v.

Jones, 252 La. 903, 908–09, 215 So. 2d 108, 110 (1968)

(granting a supervisory writ after observing that the

trial “judge violated two fundamental protections

extended by the State and Federal Bill of Rights”).

Even when denying relief, state appellate

courts regularly issue thorough and well-reasoned

decisions on the merits—which further demonstrates

the adequacy of the supervisory writ mechanism for

safeguarding detainees’ state and federal rights. See,

e.g., State v. Poirier, 2018-467 (La. App. 3 Cir. 7/11/18),

251 So. 3d 486, 493 (concluding “trial court did not

abuse its discretion in denying bail to Defendant”);

State v. Helaire, 2017-802 (La. App. 3 Cir. 10/25/17),

230 So. 3d 253, 255; State v. Goodie, 2017-693 (La.

App. 3 Cir. 8/23/17), 226 So. 3d 1130, 1138 (concluding

the record demonstrated no error in the trial court’s

determination that the detainee “pose[d] an imminent

danger to the victim”); State v. Chivers, 198 La. 1098,

1104, 5 So. 2d 363, 364 (1941) (ordering the trial court

24

“to send up the record in the case and to show cause

why the amount of the bond should not be reduced as

prayed for” but ultimately concluding that “the

defendant has not made a reasonable showing that he

is unable to make bond in the amount fixed by the

judge”).

In sum, the supervisory writ is a powerful tool

that allows Louisiana state courts to speedily

safeguard the state and federal rights of pretrial

detainees. Louisiana appellate courts can and do

regularly use the supervisory writ in bail cases to

preserve those rights.

iii.

Pretrial detainees can seek a writ of

habeas corpus.

Under Louisiana law, “[h]abeas corpus is a writ

commanding a person who has another in his custody

to produce him before the court and to state the

authority for the custody.” La. Code Crim. Proc. art.

351; see State ex rel. Lay v. Cain, 96-1247 (La. App. 1

Cir. 2/14/97), 691 So. 2d 135, 137. The Louisiana Code

of Criminal Procedure defines “custody” as “detention

or confinement as a result of or incidental to an

instituted or anticipated criminal proceeding.” Id.

Louisiana courts have explained that “habeas

corpus is an action independent of the legal proceeding

under which the detention is sought to be justified.”

Madison v. Ward, 2000-2842 (La. App. 1 Cir. 7/3/02),

825 So. 2d 1245, 1249 (citation omitted). “Both the

[Louisiana] civil and criminal codes of procedure

provide for habeas relief”—and so “it is essential that

the individual habeas proceeding be appropriately

classified.” Id. “[W]here the custody being challenged

25

by a writ of habeas corpus arose from a criminal

proceeding, the procedures set forth in [La. Code Crim.

Proc.] art. 351 et seq. apply.” Id.

Because the Louisiana Code of Criminal Procedure

now expressly allows pretrial detainees to move state

trial courts to lower bail and to invoke the supervisory

jurisdiction of appellate courts to review claims

related to bail, there are now fewer reported cases3 in

which pretrial detainees use habeas proceedings to

raise bail claims. That is especially true because the

Louisiana Code of Criminal Procedure does not allow

any “appeal from a judgment granting or refusing to

grant release upon a petition for a writ of habeas

corpus.” Id. art. 369. When a habeas petitioner

mistakenly seeks to appeal a habeas decision,

Louisiana courts often treat the appeal as though the

petitioner invoked the appellate court’s supervisory

jurisdiction. State ex rel. Lay v. Cain, 96-1247 (La.

App. 1 Cir. 2/14/97), 691 So. 2d 135, 138 (“Since we

have the record before us, however, we shall treat this

matter as a timely application for the exercise of our

supervisory jurisdiction and decide the preliminary

issue of venue.”); State ex rel. Smith v. Henderson, 315

So. 2d 275, 275 (La. 1975) (same).

Years ago, however, Louisiana state courts regularly used

habeas as a mechanism to lower bail and order detainees’ release.

See, e.g., State v. Wertheimer, 183 La. 388, 390–91, 163 So. 545,

546 (1935) (“The relator’s application to have the amount of bail

reduced is granted to the extent of permitting him to obtain his

liberty.”); State v. Glenon, 164 La. 163, 167, 113 So. 803, 805

(1927); see also State v. Gomilla, 131 La. 286, 288, 59 So. 402, 402

(1912) (denying writ).

3

26

Pretrial detainees can use the writ of habeas corpus

to ensure that they receive a bail hearing and other

necessary procedures. The Louisiana Supreme Court’s

opinion in State v. Chaney demonstrates the power

and usefulness of the writ of habeas for pretrial

detainees. 384 So. 2d 442 (La. 1980). In that case, two

men were arrested and incarcerated. Id. at 442. Three

weeks went by, and they had not yet been brought

before a judge as required by Louisiana Code of

Criminal Procedure article 230.1. Under that article,

a pretrial detainee must be brought before a judge or

magistrate “within seventy-two hours from the time of

the arrest.” La. Code Crim. Proc. art. 230.1. As part of

that hearing, a “court may also, in its discretion,

determine or review a prior determination of the

amount of bail.” Id. If officials fail to adhere to these

requirements or provide the hearing, the detainee

“shall be released on his own recognizance.” Id.

The two detainees sought a writ of habeas corpus

and received a hearing before a judge. The trial judge

denied the writ of habeas corpus, however, for reasons

not relevant here. When the matter was eventually

brought before the Louisiana Supreme Court,

attorneys for the State argued the case was moot

because the prisoners had since been released on bail.

The court reversed and granted the writs for habeas

corpus, explaining that the trial judge misinterpreted

article 230.1. The court rejected the mootness

argument because the plain language of article 230.1

did not condition release on bail. The court found it

“impossible to believe that an accused who is unable

to give bail should be granted a complete release,

27

while an accused with greater resources is only

entitled to a conditional release.” Id. at 446.

In accordance with the Supreme Court’s decision in

Chaney, lower state courts grant habeas applications

when local officials fail to adhere to the requirements

of article 230.1. See, e.g., State ex rel Wilson v. State,

413 So. 2d 498 (La. 1982); State v. Watkins, 399 So. 2d

153, 155 (La. 1981) (“In response to a petition for

habeas corpus, a hearing was held and defendants

were ordered released from custody.”).

In sum, Louisiana’s writ of habeas corpus is an

important tool that pretrial detainees can use to

ensure that they receive the necessary process

mandated in article 230.1 and other provisions of state

law.

iv.

Pretrial detainees can seek a writ of

mandamus.

Finally, the writ of mandamus is yet another tool

provided by Louisiana law that pretrial detainees can

use to vindicate their state and federal rights.

“Mandamus is a writ directing a public officer . . . to

perform” certain ministerial duties. La. Code Civ.

Proc. art. 3861. But mandamus “is not a proper

procedure when the [official’s] duty contains elements

of discretion.” Ass’n of La. Bail Underwriters v.

Johnson, 615 So. 2d 1345, 1346 (La. Ct. App.) (citing

24th Judicial Dist. Indigent Def. Bd. v. Molaison, 522

So.2d 177 (La. App. 5th Cir. 1988)), writ denied, 617

So. 2d 1184 (La. 1993).

In Association of Louisiana Bail Underwriters v.

Johnson, an association of underwriters sued a sheriff

because the sheriff allowed “both misdemeanor and

28

felony offense defendants to obtain pre-trial and postconviction releases from custody by posting ten per

cent of the set bail, in cash, with the Sheriff’s office.”

Id. at 1345–46. The association believed that practice

was illegal because it was not specifically provided in

the bail statutes. Id. at 1346. The trial court rejected

the association’s challenge to the bail procedure for

misdemeanor cases. The association appealed, seeking

a writ of mandamus to compel the sheriff to cease its

practice.

The sheriff objected to the use of the mandamus

procedure “on the basis that the party responsible for

the order is the district court and that he is simply

following a judicial order.” Id. at 1346. And so, the

appellate court was obligated to answer the question

of whether it could even consider the challenge

through the mandamus procedure before turning to

the merits of the association’s challenge.

The appellate court explained that “mandamus

may issue where the law provides no relief by ordinary

means or where the delay involved in pursuing

ordinary means may cause injustice.” Id. (citing La.

Code Civ. Proc. art. 3862). Because “in this case, the

courts have delegated a duty to the Sheriff . . . to

accept bail as provided in an order . . . [h]e is allowed

no discretion.” Id. Thus, the appellate court concluded

that the “duty is ministerial” and “the writ of

mandamus was properly brought by the Association to

contest the manner in which the Sheriff performs the

duty.” Id. (emphasis added). On the merits, however,

the appellate court rejected the association’s

argument that the trial court erred by allowing the

29

sheriff’s “acceptance of a ten per cent cash bond in lieu

of surety.” Id. at 1347.

The important lesson to draw from Association

of Louisiana Bail Underwriters is that state courts are

willing to use the writ of mandamus to ensure that

local officials, including sheriffs, adhere to the law

when performing ministerial duties. A pretrial

detainee could—like the association—invoke the

mandamus mechanism if she believed that a sheriff or

another local official was not performing a ministerial

duty. This additional protection provides yet another

reason to conclude that Louisiana procedures are

adequate under the third Younger factor.

II.

LITTLE’S PETITION HAS VEHICLE PROBLEMS.

A. Significant changes to the 15th JDC’s bail

procedures moot Little’s claims.

When Little initiated this class-action litigation in

2017, and even when the class was certified in June

2018, the 15th JDC’s bail procedures were

significantly different from what they are today. At

that time, a bail schedule established the amount of

payment for most misdemeanor offenses. The

Commissioner did not consider arrestees’ individual

financial situations when assigning bail, and he rarely

considered non-financial alternatives to bail. Those

are the practices that Little challenges, and all of that

has changed. Not a single arrestee is subject to those

practices today.

In August 2018, the 15th JDC acted en banc to

rescind the bail schedule. Today, most misdemeanor

arrestees are released immediately without money

bail. By the time of trial in this case, any arrestees not

30

subject to automatic release receive individual

hearings, in which the Commissioner considers their

financial situations and alternatives to money bail.

The district court found that these changes were not

merely “cosmetic.” Pet. App. 48a.

These changes impact the vitality of Little’s claims.

Little was released after a week of incarceration. His

release would normally operate to moot his claims

unless they are “capable of repetition, yet evading

review.” Weinstein, 423 U.S. at 149; see also Bd. of Sch.

Comm’rs v. Jacobs, 420 U.S. 128, 129–30 (1975)

(holding that a class action becomes “moot unless it

was duly certified as a class action pursuant to Fed.

Rule Civ. Proc. 23, a controversy still exists between

petitioners and the present members of the class, and

the issue in controversy is such that it is capable of

repetition yet evading review”); O’Shea, 414 U.S. at

495–96. This exception to the mootness doctrine is

narrow: “To qualify as a case fit for federal-court

adjudication, ‘an actual controversy must be extant at

all stages of review, not merely at the time the

complaint is filed.’” Arizonans for Off. Eng. v. Arizona,

520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422

U.S. 395, 401 (1975)).

Allowing Little and his class to press their

claims would allow the narrow mootness exception for

transitory claims to swallow the rule that federal

courts are limited to considering only cases and

controversies. See Sosna v. Iowa, 419 U.S. 393, 402

(1975). In an analogous context, this Court has

explained that “where a named plaintiff’s individual

claim becomes moot before the district court has an

opportunity to rule on the certification motion, and the

31

issue would otherwise evade review, the certification

might ‘relate back’ to the filing of the complaint.”

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75–

76 (2013). A claim relates back only “where it is

certain that other persons similarly situated will

continue to be subject to the challenged conduct.” Id.

(cleaned up). In light of the significant changes to the

15th JDC’s bail procedures—including the en banc

order that put an end to the bail schedule—it is not

“certain” that other persons situated similarly to

Little will “continue to be subject to the challenged

conduct.” Id. The exception to the mootness rule

should not apply in these circumstances.

B. Little

conceded

the

adequacy

of

Louisiana’s procedures under Daves, and

the Fifth Circuit accepted his concession

without any analysis.

In Daves, the full Fifth Circuit rightly

concluded that the third Younger prerequisite was

satisfied because Texas detainees have an “adequate

opportunity” to present their constitutional claims in

state court. See Middlesex Cnty. Ethics Comm., 457

U.S. at 432. In light of the Daves en banc opinion, the

Fifth Circuit panel in this case asked for supplemental

briefing on whether Louisiana courts provide pretrial

detainees adequate opportunities to present their

constitutional claims.

The Judicial Defendants in this case filed a

supplemental brief that elaborated in great detail

about the many ways Louisiana state court detainees

can raise constitutional claims during their state

criminal proceedings. Little filed a supplemental brief

32

that, in light of the Daves en banc opinion, conceded

the point without further elaboration. The Fifth

Circuit panel in this case simply accepted his

concession without deciding the question or analyzing

it in any detail. Pet. App. 12a–13a.

This paucity of analysis on the key question in

Little’s petition is a good reason to deny his petition.

This case’s unusual procedural posture means that, if

the Court grants certiorari here, it will be the very first

court in this litigation to consider whether Louisiana’s

bail procedures are adequate for purposes of Younger

abstention. This is a “court of review, not of first view.”

Cutter, 544 U.S. at 718 n.7. And so, even if the Court

is interested in the issues Little raises, it should wait

for further percolation in the lower courts before

granting certiorari to consider them.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

JEFF LANDRY

Attorney General

LOUISIANA DEPARTMENT OF

JUSTICE

1885 N. Third Street

Baton Rouge, LA 70802

(225) 326-6766

murrille@ag.louisiana.gov

ELIZABETH MURRILL*

Solicitor General

*Counsel of Record