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ODonnell v. Harris County

United States District Court, S.D. Texas, Houston Division

May 11, 2017

MARANDA LYNN ODONNELL, et al., On behalf of themselves and all others similarly situated, Plaintiffs,
HARRIS COUNTY, TEXAS, et al., Defendants.


          Lee H Rosenthal Chief United States District Judge.

         Harris County, five Harris County Hearing Officers, and fifteen Harris County Criminal Court at Law Judges are appealing this court's Order of Preliminary Injunction issued on April 28, 2017.[1] These defendants[2] now ask the court to stay enforcement of the preliminary injunction pending an appeal.[3] (Docket Entry No. 311). The court has carefully considered the motion to stay, examining the harm that granting a stay would cause misdemeanor defendants detained in the Harris County Jail, and balancing this against any harm that denying the stay would cause Harris County and the fifteen County Judges. The parties have each had, and used, an opportunity to weigh in.[4]

         As reviewed at length in the court's Memorandum and Opinion issued on April 28, 2017, Harris County detains over 100 people every day on misdemeanor charges because indigence makes them unable to pay a secured financial condition of release. (See Docket Entry No. 302 at 101-04). These numerous, ongoing pretrial detention orders, issued without procedural protections or individual consideration, violate the Equal Protection and Due Process Clauses of the United States Constitution. (Id. at 160-69). The record makes clear that the harm to the plaintiffs if the preliminary injunction is stayed is far greater than any harm to the defendants appealing the order if a stay is denied.

         Based on the motion and responses, the lengthy record, and the applicable law, the court denies the motion to stay. The reasons are explained in greater detail below.

         I. Background

         The background is fully laid out in the court's earlier orders and only briefly summarized here. The named plaintiffs, Maranda Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder, sued Harris County, the Harris County Sheriff, five Harris County Hearing Officers, and sixteen Harris County Criminal Courts at Law Judges, seeking injunctive and declarative relief under 42 U.S.C. § 1983. The plaintiffs alleged that Harris County has a custom and practice, amounting to an official policy, of detaining before trial misdemeanor defendants because they are too poor to pay a secured financial condition of release, without procedural protections or individual consideration, in violation of the Equal Protection and Due Process Clauses. (Docket Entry No. 54). After multiple rounds of briefing and two lengthy hearings, the court issued a Memorandum and Opinion on the defendants' motions to dismiss on December 16, 2016. (Docket Entry No. 125). The case proceeded to an eight-day hearing on the defendants' motion for summary judgment and the plaintiffs' motions for class certification and for a preliminary injunction. The court issued lengthy and detailed findings of fact and conclusions of law, including specific findings on the credibility of the witnesses and the reliability of the expert testimony. (Docket Entry No. 302).

         The court concluded that, under federal law, jurisdictions may impose secured money bail beyond a defendant's ability to pay: (1) in cases of dangerous felony; (2) after finding that no alternative to secured money bail can reasonably assure the defendant's appearance or public safety; and (3) with the due process needed for a detention order if the secured money bail in fact operates to detain the defendant. (Id. at 191). The court found that overwhelming credible evidence established that Harris County has a policy of routinely and systematically detaining indigent misdemeanor defendants before trial on secured money bail that the defendants clearly cannot pay because of their indigence, without procedural protections. The court granted the plaintiffs' motions for class certification and a preliminary injunction and denied the defendants' motion for summary judgment. (Id. at 191-93; Docket Entry No. 303).

         Texas law prohibits orders of pretrial preventive detention in all but one narrow category of misdemeanor defenses. The court found that, by its policies, Harris County flouts this prohibition by using orders imposing secured money bail as de facto orders of pretrial preventive detention only for indigent defendants. The County does so without the due process protections needed to detain, without individual consideration of each case, and with the intended or evident result that those unable to pay will be detained while those able to pay will be released before trial. The court concluded that this policy violated equal protection and due process. (Docket Entry No. 302 at 190).

         The court issued an Order of Preliminary Injunction to take effect on May 15, 2017. (Docket Entry No. 304). The Order enjoins Harris County and its policymakers-the County Judges in their legislative and rulemaking capacity and the Sheriff in his law-enforcement capacity-from using bail on a secured, rather than unsecured, basis in order to detain misdemeanor defendants too poor to pay the financial condition of release up front. In compliance with the specificity required by Federal Rule of Civil Procedure 65, the Order supplies detailed procedures for Harris County Pretrial Services to follow in determining indigence and for the Harris County Sheriff to follow in accepting bail on an unsecured, rather than a secured, basis. (Id.). The defendants who have filed an appeal ask the court to stay its Order pending appeal, or, in the alternative, to stay its Order for thirty days. (Docket Entry No. 311 at 1, 11).

         II. The Legal Standard for a Motion to Stay Pending Appeal

         “‘A stay is not a matter of right, even if irreparable injury might otherwise result.' It is instead an exercise of judicial discretion, and the ‘party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.'” Ind. State Police Pension Trust v. Chrysler, LLC, 556 U.S. 960, 961 (2009) (quoting Nken v. Holder, 556 U.S. 418, 427 (2009)). “A stay is an ‘intrusion into the ordinary processes of administration and judicial review . . . . The parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders . . . .” Nken, 556 U.S. at 427 (quoting Va. Petrol. Jobbers Ass'n v. Fed. Power Comm'n, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam)).

         A court decides whether to grant a stay pending appeal based on: “‘(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.'” Chafin v. Chafin, 133 S.Ct. 1017, 1027 (2013) (quoting Nken, 556 U.S. at 434); Moore v. Tangipahoa Parish Sch. Bd., 507 F.App'x 389, 392 (5th Cir. 2013) (per curiam) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first two factors of the . . . standard are the most critical.” Nken, 556 U.S. at 434.

         The movants have the burden to satisfy the four factors. See Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir. 1982). The movants must make “‘a strong showing that [they are] likely to succeed on the merits.'” Moore, 507 F.App'x at 392-93 (quoting Hilton, 481 U.S. at 776). “[T]he movant need not always show a ‘probability' of success on the merits.” Ruiz, 650 F.2d at 565. “[I]nstead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.” Id.; see also Nken, 556 U.S. at 434 (noting that the movant must show “[m]ore than a mere possibility of relief”); Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 23 (5th Cir. 1992) (“[P]resentation of a substantial case is only the threshold requirement. That threshold step alone is not sufficient. . . . [A] ‘serious legal question' . . . [and] demonstrat[ing] a heavy weight of equity in favor of the stay [is also required].”).

         The defendants' stay request is examined under the legal standards and the extensive record evidence.

         III. Analysis

         A. The movants have neither made a strong showing of likely success on the merits nor presented a substantial case involving a serious legal question.

         The appealing defendants argue that the relief the plaintiffs seek and that the court has ordered is unavailable under § 1983 because the plaintiffs must first exhaust state-law remedies. (Docket Entry No. 311 at 5-6) (citing Preiser v. Rodriguez, 411 U.S. 475 (1973); Tarter v. Hurley, 646 F.2d 1010, 1013 (5th Cir. Unit A 1981)). As the defendants note, these are new arguments; these cases are cited for the first time in the motion to stay. (Docket Entry No. 311 at 5). Neither was previously raised despite the fact that the defendants filed over 200 pages of briefing before the preliminary injunction hearing and an additional 150 pages afterward, including two briefs specifically objecting to the plaintiffs' proposed order of injunction. (See Docket Entry Nos. 101, 161, 162 (incorporating Docket Entry No. 26), 164, 166 (incorporating Docket Entry No. 80), 193, 204, 254, 256, 259, 260, 263, 266, 286). The court considers the defendants' arguments and authorities on this point waived. As with a motion for reconsideration, a motion to stay should not be used to relitigate matters, submit new evidence, or “raise arguments which could, and should, have been made before the judgment issued.” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)); see also 11 Wright & Miller, Federal Practice & Procedure § 2810.1 at 127-28. The waiver undercuts the defendants' ability to show a likelihood of succeeding on these arguments. “Arguments not raised in the district court cannot be asserted for the first time on appeal.” Greenberg v. Crossroads Sys, Inc., 364 F.3d 657, 669 (5th Cir. 2004). A party must “press and not merely intimate the argument during the proceedings before the district court.” Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005).

         Even if they had not waived the newly asserted argument, the defendants were right not to rely on Preiser or Tarter in their briefing. Neither case applies or supports the defendants' position. Neither case shows a ...

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