The very minute that Craighead County District Judges David Boling and Tommy Fowler were elected in 2016, The Justice Network Inc. had cause to worry.
As candidates, Boling and Fowler criticized the private, for-profit probation company headquartered in Memphis over probation fees assessed against misdemeanor offenders and vowed to end the court’s relationship with the company. The judges made good on the campaign promise earlier this year when they announced an amnesty program and canceled the fees probationers owed The Justice Network, ending the county’s 20-year relationship with the company.
The Justice Network sued the judges in U.S. District Court in Jonesboro, alleging that the amnesty policy interfered with its contracts with the probationers.
“The amount of fees rendered uncollectible due to the conduct of Fowler and Boling is in the hundreds of thousands, and continues to grow,” the suit said. “Fowler and Boling have used their judicial office and powers to unlawfully impose a policy intended to punish The Justice Network by interfering with Plaintiff’s contractual relationships.”
The company contracted with each defendant to pay a $35 monthly probation services fee and a $15 monthly charge for the supervision of “public service work,” said the suit, filed in June.
Boling and Fowler did not make their campaign promises in a vacuum. Previous judges had allowed the routine jailing of defendants who couldn’t pay The Justice Network’s fees, even if there was no proof that their nonpayment was willful, the Lawyers’ Committee for Civil Rights Under Law, based in Washington, said in a brief filed last month. “The spiraling debt and hopelessness of thousands of county residents under the prior status quo more than justifies the judges’ decisions to end their courts’ relationship with The Justice Network,” the filing said.
Jon Greenbaum, an attorney for the Lawyers’ Committee, told Arkansas Business that the company is suing the judges “for doing the right thing and getting rid of a debtors’ prison type of situation in Craighead County.”
The judges, represented by the Arkansas Attorney General’s office, have asked that the suit be dismissed on the grounds that they have absolute immunity from the plaintiff’s allegations.
Joshua M. Silverstein, a professor at the University of Arkansas at Little Rock’s Bowen School of Law, agreed that the judges have absolute immunity and can’t be sued for their individual rulings, “unless they are taking a bribe or something like that.”
He also questioned whether The Justice Network’s contracts with the probationers would be enforceable, because of the “coercive situation” defendants are in when they sign the contract.
“I’m not even sure these are contracts to begin with,” said Silverstein, who wasn’t versed in the case. “I would need to see something to establish that agreeing to a particular system in which you pay your [probation] penalty even constitutes an enforceable contract.”
If a contract violates public policy, it’s unenforceable, he said. And if the judges “determined that these defendants’ constitutional rights were being violated by this system, they not only were entitled to nullify these contracts, they had a duty to do so.”
Justice Network Responds
When The Justice Network was discharged from handling probation work in the county, the company was owed money, said Randall Fishman of Ballin Ballin & Fishman of Memphis, an attorney for the company.
The lawsuit “really seeks to just collect what they’re owed,” Fishman said. “It’s the concept of you’ve told people who owe me money, through the power of the court system, that you don’t have to pay me. I know of no business, be it probation or otherwise, that can operate like that.”
Fishman said he doesn’t have a problem with the county severing its ties with the company.
“But when you discharged The Justice Network, and you tell people who owe them money, ‘You don’t have to pay them,’ that’s a problem,” Fishman said. “The fact of the matter is it is the courts that require probation. It’s not The Justice Network.”
All The Judicial Network “did was what the court asked us to do,” he said.
A hearing in front of in U.S. District Judge James M. Moody Jr. on the motions to dismiss had not been set as of Wednesday morning.