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ODonnell v. Harris County

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

September 5, 2019

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

          MEMORANDUM AND OPINION PRELIMINARILY APPROVING THE PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT AND APPROVING AND DIRECTING ISSUANCE OF CLASS NOTICE

          LEE H. ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.

         For the last three years, the parties have litigated constitutional challenges to Harris County's policies and practices of requiring indigent misdemeanor defendants to post secured money bail. In July 2019, the parties notified the court that they had reached a comprehensive resolution. On July 30, the Harris County Commissioners Court approved the proposed consent decree and settlement agreement the parties now present to the court. The parties jointly ask the court to preliminarily approve the proposed consent decree and settlement agreement and to approve the form and manner of class notice.

         Based on a careful review of the motion, the objections, amicus briefs, and responses; the terms of the proposed consent decree, the settlement agreement, and the class notice; the voluminous record; and the applicable law, the court: (1) grants the parties' joint motion; (2) preliminarily approves the proposed consent decree and settlement agreement; (3) approves the proposed notice (with minor changes) and the proposed methods to distribute it; and (4) directs the parties to issue the notice using those methods, by September 9, 2019. The court finds and concludes that the proposed consent decree securely meets the requirements for preliminary approval. It is designed to address the constitutional violations that were alleged and proven, and to implement the relief sought by requiring policies and practices designed to protect the safety of the community, reduce failures to appear at hearings and trials, and protect the rights of indigent misdemeanor defendants. The public safety and public resource concerns raised by the recent filings are important; the proposed consent decree and settlement agreement are preliminarily approved because these concerns are fully recognized and addressed. A final fairness hearing on the proposed consent decree and settlement agreement is set for October 21, 2019, at 9:00 a.m., in Courtroom 11-B.

         The reasons for these rulings are explained in detail below.

         I. The Litigation and Proposed Class Settlement

         A. Background

         In May 2016, Maranda Lynn ODonnell filed a class-action complaint against Harris County, the Harris County Sheriff, and five Harris County Hearing Officers. (Docket Entry No. 3). Seeking injunctive and declaratory relief under 42 U.S.C. § 1983, ODonnell alleged that Harris County's postarrest incarceration policies and practices imposed a “wealth-based detention system” of keeping misdemeanor defendants in jail only because they could not pay secured money bail, while those who could pay were promptly released, in violation of the Fourteenth Amendment's Equal Protection and Due Process Clauses. (Id. at ¶¶ 75, 121).

         In September 2016, ODonnell amended her complaint, consolidating the case with the lawsuits of Robert Ryan Ford and Loetha McGruder and adding 16 Harris County Criminal Court at Law Judges as defendants. (Docket Entry No. 54). The defendants moved to dismiss for failure to state a claim and under the Younger abstention doctrine. (Docket Entry Nos. 61, 80, 83, 84, 85). In December 2016, the court granted and denied in part the defendants' motions to dismiss. ODonnell v. Harris Cty., 227 F.Supp.3d 706, 715 (S.D. Tex. 2016). The court dismissed the personal-capacity claims against the Sheriff and County Judges and the official-capacity claim against the Hearing Officers. Id. The court denied the motions to dismiss the claim against Harris County and the official-capacity claims against the Sheriff and Judges. Id. The Hearing Officers did not move to dismiss the personal-capacity claims against them, and those claims proceeded. Id.

         In January 2017, the plaintiffs filed amended motions for class certification and preliminary injunctive relief. (Docket Entry Nos. 143, 146). In March 2017, the court held an eight-day evidentiary hearing, at which many witnesses testified and the parties submitted extensive exhibits. (Docket Entry Nos. 222, 223, 228-230, 246, 247, 251). In April 2017, the court granted the plaintiffs' motions for class certification and injunctive relief. (Docket Entry Nos. 302, 303). The court certified a class under Federal Rule of Civil Procedure 23(b)(2) of:

[a]ll Class A and Class B misdemeanor arrestees who are detained by Harris County from the date of this order through the final resolution of this case, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on the secured money bail because of indigence.

ODonnell v. Harris Cty., No. H-16-1414, 2017 WL 1542457, at *1 (S.D. Tex. Apr. 28, 2017); (Docket Entry No. 303 at 1).

         The court's April 28, 2017 Memorandum and Opinion made extensive findings of fact and conclusions of law, including the following:

. Harris County has a consistent and systematic policy and practice of imposing secured money bail as de facto orders of pretrial detention in misdemeanor cases.
. These de facto detention orders effectively operate only against the indigent, who would be released if they could pay at least a bondsman's premium, but who cannot. Those who can pay are released, even if they present similar risks of nonappearance or of new arrests.
. Harris County has an inadequate basis to conclude that releasing misdemeanor defendants on secured financial conditions is more effective to assure a defendant's appearance or law-abiding behavior before trial than release on unsecured or nonfinancial conditions, or that secured financial conditions of release are reasonably necessary to assure a defendant's appearance or to deter new criminal activity before trial.
. Harris County's policy and practice violates the Equal Protection and Due Process Clauses of the United States Constitution.

ODonnell v. Harris Cty., 251 F.Supp.3d 1052, 1059-60 (S.D. Tex. 2017); (Docket Entry No. 302 at 7). The court found that “40 percent of all Harris County misdemeanor arrestees every year are detained until case disposition” because, among other reasons, hearing officers mechanically applied a bail schedule that failed to consider an arrestee's ability to pay. ODonnell, 251 F.Supp.3d at 1095, 1130-31 (from January 2015 to January 2017, Harris County hearing officers “adhered to the prescheduled bail amount stated on the charging documents in 88.9 percent of all misdemeanor cases”). The court entered a preliminary injunction order against the defendants and denied their motion to stay. ODonnell v. Harris Cty., No. H-16-1414, 2017 WL 1735453, at *1- 3 (S.D. Tex. Apr. 28, 2017); (Docket Entry Nos. 304, 305). The defendants appealed.

         The Fifth Circuit affirmed in part and vacated in part. ODonnell v. Harris Cty., 882 F.3d 528, 549 (5th Cir. 2018), opinion withdrawn and superseded on reh'g sub nom. ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018). The Fifth Circuit upheld this court's factual findings and affirmed the legal “conclusion that ODonnell established a likelihood of success on the merits of [her] claims that [Harris] County's policies violate procedural due process and equal protection.” ODonnell, 892 F.3d at 152. The Fifth Circuit found the April 2017 preliminary injunction order overbroad as to one aspect and instructed this court to more narrowly tailor the relief. Id. at 163-64.

         On remand, after hearing oral argument and receiving proposals from the parties, this court issued a memorandum and opinion and an amended preliminary injunction order in June 2018. ODonnell v. Harris Cty., 321 F.Supp.3d 763 (S.D. Tex. 2018). In July 2018, 14 of the 16 County Judges appealed the amended preliminary injunction order.

         The 14 County Judges moved to stay four sections of the amended preliminary injunction order. A divided Fifth Circuit motions panel granted the motion and stayed the challenged provisions pending the appeal. ODonnell v. Goodhart, 900 F.3d 220, 223 (5th Cir. 2018).

         In June and July 2018, the parties conducted extensive discovery, filed cross-motions for summary judgment, and prepared for trial on a permanent injunction, while briefing the merits of the appeal from the court's amended preliminary injunction order. (Docket Entry Nos. 400, 429, 432).

         On November 6, 2018, 15 of the 16 County Judges named as defendants lost their reelection bids. Voters also elected two new members of the Harris County Commissioners Court. On November 13, 2018, this court granted the defendants' motion to stay the case until February 1, 2019. (Docket Entry Nos. 529, 532).

         Because the plaintiffs had sued the County Judges in their official capacities, the newly elected judges were substituted as parties on January 1, 2019. (Docket Entry No. 548). On January 7, all the County Judges voluntarily dismissed the appeal of the amended preliminary injunction. That same day, the Fifth Circuit Clerk “entered an order, issued as the mandate, stating that . . . the appeal is dismissed . . . pursuant to appellants' motion.” ODonnell v. Salgado, 913 F.3d 479, 481 (5th Cir. 2019) (per curiam).

         On January 25, 2019, the parties jointly submitted Amended Local Rule 9.1 of the Harris County Criminal Courts at Law. (Docket Entry No. 557). Amended Rule 9.1 rescinded Harris County's “secured money bail schedule and instead require[s] that the initial, post-arrest release-or-detention decision be made on the basis of the charged offense.” (Docket Entry No. 557-2 at 1). The amended rule also requires “the prompt release of all misdemeanor arrestees on a personal bond except for five categories of arrestees.” (Id. (quotation omitted)). If a misdemeanor arrestee is not released promptly on a personal bond, then that person “must receive a bail hearing . . . [within] 48 hours after arrest.” (Docket Entry No. 617-1 at 18).

         On February 1, 2019, the court reviewed and approved the implementation of the amended rule, which went into effect on February 16. (Docket Entry No. 557 at 2; Docket Entry No. 563). At the February 1 hearing, the parties informed the court that they were actively pursuing settlement negotiations. (Docket Entry No. 563). On April 8, the court granted the parties' joint motion to dismiss the Hearing Officers as defendants in the case. (Docket Entry No. 587).

         On July 25, the parties reported that they had reached a resolution and had submitted a proposed consent decree and settlement agreement to the Harris County Commissioners Court for approval. (Docket Entry No. 615). On July 30, a majority of the Commissioners approved the proposed consent decree and settlement agreement. The parties jointly moved this court for preliminary approval the next day. (Docket Entry No. 617). The parties also moved for approval of a proposed class notice, permission to issue the notice, and attorneys' fees. (Id.; Docket Entry No. 618).

         In August, several individuals and organizations filed amicus briefs or letters opposing all or parts of the proposed consent decree. The objectors include the Harris County Deputies' Organization (Fraternal Order of Police Lodge #39); the Professional Bondsmen of Harris County; Harris County Commissioner Steve Radack; Equal Justice Now; Crime Stoppers of Houston, Inc.; Pasadena, Texas Police Chief Josh Bruegger; Harris County Commissioner R. Jack Cagle; the Harris County Domestic Violence Coordinating Council; Harris County District Attorney Kim Ogg; the Houston Area Police Chiefs Association; and the Texas School District Police Chiefs' Association. (Docket Entry Nos. 629, 631-2, 634-1, 635-1, 636-39, 641-1, 646-1). To allow the parties to respond, and to enable the court to fully consider the objectors' arguments, the court extended the deadlines for class notice and objections and reset the final fairness hearing.

         On August 30, the parties filed their responses to the amici and objectors. (Docket Entry Nos. 647-49). The responses were filed shortly after 11 current and former Harris County District Judges were reprimanded for requiring indigent misdemeanor defendants to post money bail in disregard of the rules and law governing personal pretrial bonds in misdemeanor cases. Associated Press, Commission: 11 Texas Judges Broke Law by Denying Free Bail, N.Y. Times (Aug. 30, 2019), https://www.nytimes.com/aponline/2019/08/30/us/ap-us-texas-judges-admonished.html.

         The parties' arguments are amply supported by the extensive record evidence and governing law. As explained below, the amicus briefs and objections do not identify an adequate basis to deny preliminary approval of the proposed settlement and consent decree.

         B. The Proposed Class Settlement

         1. The Proposed Consent Decree

         The proposed consent decree requires Harris County to carry out a broad range of bail reforms. Harris County must implement, comply with, enforce, and train[1] certain officials on Amended Local Rule 9, which provides that “[a]ll misdemeanor arrestees must be released on a personal bond or on nonfinancial conditions as soon as practicable after arrest, except” individuals arrested:

. and charged with domestic violence, violating a protective order in a domestic violence case, or making a terroristic threat against a family or household member;
. and charged with assault;
. and charged with a second or subsequent driving-under-the-influence offense;
. and charged with a new offense while on pretrial release;
. on a warrant issued after a bond revocation or bond forfeiture; and
. while on any type of community supervision for a Class A or B misdemeanor or a felony.

(Docket Entry No. 617 at 25; Docket Entry No. 617-1 at 17-18).

         A misdemeanor “arrestee who is not promptly released on a personal bond . . . must receive a bail hearing . . . [within] 48 hours after arrest.” (Docket Entry No. 617-1 at 18). An arrestee subject to a bail hearing must be represented by counsel-either a private attorney or a Harris County Public Defender. (Id. at 19). The hearing officer must give the arrestee adequate notice and “an opportunity to be heard concerning any factors relevant to release, detention, and the availability of alternative conditions.” (Id. at 20-21). The arrestee must also have “an opportunity at the hearing to present evidence and make argument[s] concerning those issues.” (Id. at 21). If secured money bail is imposed as a release condition, the hearing officer must find on the record, by clear and convincing evidence, that: (1) “the arrestee has the ability at the time of the hearing to pay the amount required”; or (2) “no less-restrictive condition or combination of conditions could reasonably assure” community safety or prevent flight from prosecution. (Id. at 21-22). The arrestee may seek review of a hearing officer's decision in the Harris County Criminal Court at Law. ( Id. . at 22-23).

         Hearing officers may not require indigent arrestees to pay “any fee associated with a personal bond or an unsecured bond, or the cost of a non-financial condition of release, including . . . a supervision fee.” (Id. at 22). And the Harris County Sheriff “must not enforce any order requiring secured money bail that was imposed [before] an individualized hearing.” (Id. at 23).

         Consistent with Amended Local Rule 9, Harris County must “provide the funding and staffing necessary” for the Public Defender's Office to adequately represent all misdemeanor arrestees at bail hearings. (Id. at 25). Harris County must also “provide defense counsel access to early and effective support staff to assist “in gathering and presenting information relevant to the bail decision.” (Id.). The consent decree requires Harris County to provide access to, fund, and disclose the names of qualified support staff to assist court-appointed counsel. (Id.). In addition, the consent decree requires Harris County to retain an indigent-defense expert “to evaluate the County's current misdemeanor indigent defense systems and determine the County's need for essential support staff . . . to promote . . . effective indigent defense.” (Id. at 26).

         To reduce failures to appear after pretrial release, the defendants must give eligible misdemeanor arrestees “written notice of the date, time, and location of their scheduled court appearance.” (Id. at 27). The defendants must “update any form [used] to provide written notice of scheduled court dates to incorporate evidence-based design practices for effectively reducing nonappearance.” (Id.). The defendants must also: (1) “develop and maintain a website where misdemeanor arrestees can access their court dates, times, location, [and] attorney information”; and (2) “adopt text-message-based and telephone-based” services to remind misdemeanor arrestees about scheduled court appearances. (Id. at 29, 33).

         Policies and procedures designed to reduce failures to appear are also addressed. The consent decree includes the following provisions:

. A misdemeanor arrestee is not required to appear in court within 72 hours of release for proceedings in the case for which they were arrested.
. The Harris County Criminal Court at Law Judges must hold “Open Hours Court” at least one day each week, and a misdemeanor arrestee who missed a scheduled court appearance may attend “Open Hours Court” to reschedule the missed appearance.
. A misdemeanor arrestee may waive appearance at any regular setting before or during the setting, and an arrestee who has not waived appearance may reschedule any appearance at least twice before the hearing.
. If a misdemeanor arrestee fails to appear, a warrant will not issue if the arrestee appears in the assigned Harris County Criminal Court or in “Open Hours Court” to reschedule the appearance before “close of business on the day of Open Hours Court of the week following the missed setting.” . A warrant may issue only if a Harris County Criminal Court at Law Judge finds that the misdemeanor arrestee had actual notice of the hearing and that there was no good cause for failing to appear.
. A misdemeanor arrestee subject to a warrant for failing to appear may appear in “Open Hours Court” to reschedule the hearing. “In the absence of other bases for the misdemeanor arrestee's arrest, ” and if the hearing was a regular or first setting, the Harris County Criminal Court at Law Judge must recall the warrant. If the hearing was a required appearance, the arrestee may not be taken into custody unless the Harris County Criminal Court at Law Judge finds that the arrestee had actual notice of the hearing and that there was no good cause for failing to appear.
. Any person subject to a warrant for failing to appear that was issued before January 1, 2019, may appear at “Open Hours Court” or in the assigned Harris County Criminal Court to have the warrant recalled and to schedule a new hearing date.

(Id. at 34-36). In addition, Harris County must “study and seek to mitigate the primary wealth-based causes of nonappearance among misdemeanor arrestees” and “allocate $250, 000 annually, beginning in Fiscal Year 2020-21, toward assisting . . . indigent misdemeanor arrestees in making court appearances ” (Id. at 30-31).

         The consent decree requires Harris County to collect, study, and make publicly available on a website other data about:

. Harris County's compliance with the consent decree;
. pretrial release and detention decisions relating to misdemeanor arrestees;
. Amended Local Rule 9's effect on misdemeanor arrestees' appearance rates;
. demographic and socioeconomic information as to each misdemeanor arrestee; and
. Harris County's misdemeanor bail system from 2009 to the present.

(Id. at 38-40). Harris County must generate, and publish online, a report every 60 days on the proposed consent decree's implementation. (Id. at 41-42). Harris County must also launch and maintain a website for information related to this lawsuit and to the implementation of the consent decree, including the policies and procedures adopted under the consent decree. (Id. at 43-44).

         An independent monitor the parties jointly select will oversee Harris County's compliance with the consent decree for seven years. (Id. at 44, 46). The monitor will conduct audits, reviews, and assessments “to determine whether the Consent Decree has been implemented as required.” (Id. at 45). Harris County must make the monitor's reports publicly available. (Id. at 47-48).

         Finally, Harris County must hold at least two public meetings each year to “report on [the] implementation of the Consent Decree, ” and to give community members an opportunity to comment and ask questions about Harris County's misdemeanor criminal justice system. (Id. at 43-44). The monitor and representatives of Harris County, the Sheriff, and the Criminal Court Judges must attend the meetings. (Id. at 43).

         The court raises some questions about the proposed consent decree below.[2] To be clear, the court is not rewriting and will not rewrite any of the terms; it is up to the parties, not the court, to write, and explain, the proposed consent decree.

         2. The Proposed Settlement Agreement

         The proposed settlement agreement states that the parties “agree to file a joint motion seeking approval of the Consent Decree to resolve all of [the] Plaintiffs' claims.” (Docket Entry No. 617-2 at 1). The terms are summarized above. The agreement also addresses fees and costs.

         Harris County agrees to pay the following attorneys' fees and costs:

. $3, 725, 231.00 in fees and $114, 832.54 in costs to Civil Rights Corps;
. $2, 161, 262.00 in fees (to be forgone) and $30, 214.86 in costs to Susman Godfrey LLP.;
. $632, 453.00 in fees to Wilmer Cutler Pickering Hale and Dorr LLP; and
. $182, 715.90 in fees and $5, 378.00 in costs to the Texas Fair Defense Project.

(Id.). Harris County also agrees that it will preserve “all filings and evidence submitted in” this litigation. (Id. at 2).

         Susman Godfrey agrees to forgo all of its fee “in consideration of [Harris] County's agreement to allocate [that amount of money] to its own efforts to meet the needs of class members, as described in the Consent Decree.” (Id. at 1). The parties agree that Harris County will not pay any attorneys' fees or costs incurred in implementing or monitoring the consent decree, but class counsel do “reserve[] the right to seek fees . . . for work performed in connection with contempt proceedings if there is a finding of contempt.” (Id.).

         The terms are examined under the legal standard and the record.

         II. The Legal Standard for Preliminarily Approving a Class Settlement

         Federal Rule of Civil Procedure 23(e) governs court review of proposed class-action settlements. Because the court has certified the class, the class certification issues at this settlement stage are “whether the proposed settlement calls for any change in the class certified, or of the claims, defenses, or issues regarding which certification was granted.” Fed.R.Civ.P. 23(e)(1) Committee Notes to 2018 amendments. No. new certification is required at settlement for a previously certified class.

         Rule 23(e)(1)(B) requires the court to “direct notice in a reasonable manner to all class members who would be bound by the proposal.” Fed.R.Civ.P. 23(e)(1)(B). The court must consider whether “giving notice is justified by the parties' showing that the court will likely be able to [finally] approve the proposal under Rule 23(e)(2).” Id. 23(e)(1)(B)(i). The 2018 Committee Notes to Rule 23(e)(1) clarify that the “decision to give notice of a proposed [class] settlement . . . should be based on a solid record supporting the conclusion that the proposed settlement will likely earn final approval after notice and an opportunity to object.” Fed.R.Civ.P. 23(e)(1) Committee Notes to 2018 amendments.

         A proposed settlement “will be preliminarily approved unless there are obvious defects in the notice or other technical flaws, or the settlement is outside the range of reasonableness or appears to be the product of collusion, rather than arms-length negotiation.” 2 McLaughlin on Class Actions § 6:7 (15th ed. 2018). A lower degree of scrutiny applies if, as here, “class certification took place long before any settlement was reached or negotiated.” In re PaineWebber Ltd. P'ships Litig., 171 F.R.D. 104, 122 (S.D.N.Y. 1997) (citing Manual for Complex Litigation § 30.44 (3d ed. 1995)).

         The proposed settlement must be “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2); United States v. City of New Orleans, 731 F.3d 434, 438-39 (5th Cir. 2013) (a court must find that a consent decree is fair, reasonable, and adequate before entering it as a judgment). Under the 2018 amendments to Rule 23(e)(2), courts look to whether:

(A) the class representatives and class counsel have adequately represented the class;
(B) the proposal was negotiated at arm's length;
(C) the relief provided for the class is adequate, taking ...

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