Ravalli County jail diversion program challenged

Plaintiffs in lawsuit challenging Ravalli County’s Jail Diversion Program file for class action status

In a lawsuit filed in 2021 in Federal District Court in Missoula challenging Ravalli County’s Jail Diversion Program and its pre-trial supervision fees, plaintiffs Teri Evenson-Childs, Daniel O’Toole, Richard Churchill, and Keith Leonard are now moving to have the case certified as a class action, allowing other similarly aggrieved parties to join in the case (Evenson-Childs v. Ravalli County).

Attorneys from Equal Justice Under the Law, a non-profit located in Washington D.C., and Upper Seven Law located in Helena, representing the plaintiffs, stated in a recent press release that the county’s program “extorts money from hundreds of individuals through pre-trial fees. In Ravalli County, pre-trial arrestees — who have not been found guilty of any crime — are required to pay pre-trial fees adding up to hundreds of dollars per month, no matter their income level. Jail time and threats of jail time are used to force pre-trial arrestees to pay, creating modern-day debtors’ prisons for those unable to pay these abusive fees. And, even if the arrestee is ultimately found innocent, they do not get their money back.”

 The Plaintiffs’ goals, according to the press release, “are to end Ravalli County’s pay-or-jail scheme and to refund the fees that the County unconstitutionally charged. All Plaintiffs were charged thousands in pre-trial fees without a conviction, even after the court found they could not afford a lawyer. All were threatened with jail time for not being able to afford these fees, and Plaintiffs Evenson-Childs, O’Toole, and Churchill were jailed for being unable to pay fees.” 

“If you are arrested in Ravalli County and have limited means, it is nearly impossible to pay these fees,” said Constance Van Kley, Litigation Director at Upper Seven Law. “The County’s policy flips the presumption of innocence prior to conviction and criminalizes poverty.”

Phil Telfeyan, Executive Director of Equal Justice Under Law, said, “Hundreds of individuals’ lives will be positively impacted by this case if the court rules in our favor of ensuring that money or lack thereof is never the reason that someone is incarcerated or threatened with incarceration in Ravalli County.”

The Plaintiffs assert in their lawsuit that even though bail is presumed under Montana law for the vast majority of defendants, the Courts often impose pre-trial supervision as a condition of pre-trial release on top of bail. 

It states in the lawsuit that when Defendant Courts impose pre-trial supervision, they not only impose supervision and its various terms and conditions (which can include supervision alone or supervision combined with a GPS ankle monitor, twice-daily drug testing, house arrest, etc.), but also the expense of supervision with pricing set by the Sheriff’s Office (SO), though court orders often do not lay out the entire cost a pre-trial arrestee will be forced to pay.

Plaintiffs argue that the amount that the SO charges pre-trial arrestees to be released from jail is arbitrary and capricious, based on an individual analysis left entirely to Sheriff Office’s discretion with no opportunity for judicial review. They note this is done without any finding of guilt or any assessment of a person’s ability to pay. 

The average cost of a one-bedroom apartment in Hamilton, they claim, is $875/month. 

“The example person described above,” it states in the lawsuit, “on supervision and with a GPS ankle monitor—working full-time at minimum wage would not be able to afford even a one-bedroom apartment and pre-trial fees. A person working full-time at minimum wage in Montana earns approximately $1,400 pre-tax. After paying for rent ($875 per month) and pre-trial fees ($495 per month), this person would have $30 left in her pre-tax monthly budget to cover everything else, including food, utilities, medicine, transportation, clothing, etc. for themselves as well as any of their dependents. Unlike bail amounts, which pre-trial arrestees can challenge in the 21st Judicial District Court, the extra-judicial amount of pre-trial fees that Pre-Trial Supervision imposes on pre-trial arrestees to secure their release cannot be challenged. There is no avenue for judicial review of these amounts.” 

Plaintiffs call this is a “wealth-based fee extortion scheme” that violates due process and equal protection under the law. 

They claim the Sheriff’s Office has a policy and practice of detaining pre-trial arrestees for non-payment of pre-trial fees, forcing pre-trial arrestees to sign contracts “agreeing” to greater criminal exposure for being on pre-trial supervision, and threatening a return to jail for non-payment of fees. 

They claim that both the Justice Court and 21st Judicial District Court have a policy and practice of requiring pre-trial supervision as a condition of pre-trial release and imposing such supervision without risk or ability to pay assessments. They claim the Courts also have a policy and practice of providing no judicial review of the amount of fees charged for supervision and a policy and practice of re-incarcerating pre-trial arrestees for failure to pay pre-trial fees. As a result, they claim, even with a release order from a judge, many pre-trial arrestees remain in jail. 

“These fees apply only at the pre-trial stage and therefore apply only to individuals who have not been convicted of anything,” they argue. “Pre-trial arrestees are punished despite their presumed innocence by having to pay these fees; they are deprived of their property without due process… Money extracted prior to conviction (like bail bonds) must meet at least a minimal level of due process; Defendants’ fees are imposed with no attendant procedural protections.” 

County officials are being defended by the Montana Association of Counties in the case and filed a motion to dismiss for failure to state a claim upon which relief can be granted. A dismissal for failure to state a claim is proper, they state, where there is a “lack of cognizable legal theory or absence of sufficient facts alleged under a cognizable legal theory.” Adding that “conclusory allegations and unwarranted inferences are insufficient to overcome a motion to dismiss. More important in this instance, the court need not accept as true allegations that contradict matters properly subject to judicial notice or by exhibit.”

In their response brief, MACO attorneys argue that since Ravalli County is listed as a defendant, it is duplicative to charge Sheriff Holton in his official capacity and he should be dismissed from the case. They argue that the judges named in the suit are actually acting as agents of the state, quoting case law to the effect that “Generally speaking, a suit [brought] against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. As such, it is no different from a suit against the State itself.” And conclude, “Because the Ravalli County Justices of the Peace were acting as agents of the State of Montana, they are immune from any claims asserted against them in their official capacities.”

Defendants also argue that the claims against the County are not valid because they did not establish that “the local government had a deliberate policy, custom, or practice that was the moving force behind the constitutional violation [they] suffered.”  They argue that it is actually the Courts that impose pre-trial services and not the local government.

In contrast, they state, it is the County that sets the fees and provides the services and reports non-payment to the Courts. “Unless Plaintiffs demonstrate that a County policy, procedure or practice related to that role is the moving force behind a constitutional violation, they have failed to allege a claim.”

It is also argued that the claims fail to state an equal protection claim under the law. They address what they say “appears” to be a disparate impact claim, stating, “such a claim requires not only a showing of disparate consequences resulting from enforcement of a neutral statute, but that such consequences are intentional. Proof of discriminatory intent is required to show that state action having a disparate impact violates the Equal Protection Clause.”  

“Even assuming Plaintiffs established a disparate impact on indigent persons,” the argument continues, “the County’s policy does not deny equal protection unless it has no rational relationship to a legitimate government purpose. ‘[A]t least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.’”

Concluding, “Because the County has a rational basis for imposing pretrial service fees, and because Plaintiffs offer no proof that such fees are intended to discriminate against indigent persons, Plaintiffs fail to state an equal protection claim based on disparate impact.” 

Responding to allegations of unequal administration, defendants argue that the County does not determine who must obtain services, which services they must obtain, or how long they must maintain those services. 

“Plaintiffs themselves allege that “fees are assessed to all pretrial arrestees in the jail diversion program…” Plaintiffs make no allegation that indigent detainees are subject to different fee amounts, contractual requirements, or non-compliance reporting than non-indigent detainees as a result of the County’s application of its policy. As a result, they cannot sustain an equal protection claim based upon unequal administration of a neutral policy.” 

Addressing lack of due process claims, the defendants argue that it is the judges who impose the requirement to obtain pretrial services, including the requirement of payment for those services. If a criminal defendant fails to pay for required services, it is the judge who revokes bail. The County merely sets fees for each service and collects those fees from the criminal defendant. The County has no mechanism for extracting money from those who do not pay other than referring them back to the judge who imposed the bail condition of pretrial services. The Court has complete discretion to ignore such referrals, amend bond conditions, revoke release on bail or impose any other bail condition it deems appropriate. Thus, the County’s policy of setting and collecting fees for pretrial services is not the moving force behind either the deprivation of property or the deprivation of liberty that may result. Rather, it is the authority of the court acting pursuant to Montana law that compels those deprivations, because the moving force behind any alleged constitutional violation is State action, rather than County policy.

“If a court may impose monetary bail as a condition of release, it is not clear why a court may not also order release conditions which impose a monetary burden. So long as the state’s interest in public safety is balanced against the defendant’s liberty interest, pretrial detention is not constitutionally prohibited even if it results from inability to pay,” they argue.

Defendants go on to request that if the claims are not dismissed the trial should be stayed until the underlying charges against the persons arrested are resolved and refrain from issuing any injunctive relief. They argue that the court should abstain from considering any claims of violation of the federal constitution because they should properly be resolved first in a state forum.

Sheriff Steve Holton said that he could not comment on the pending lawsuit but freely discussed the Sheriff’s Office role in providing pre-trial supervision. He did say that he would hate to see the county’s jail diversion program disappear. He said that prior to adoption of the jail diversion program, approximately 55 to 68 people were being held in the detention center on a daily basis. Since adoption of the program, he said, the number of detainees on a daily basis has dropped to an average of 39. 

The Plaintiffs are demanding a jury trial and are seeking:

•  declaratory judgment that Defendants’ conduct as alleged in the Counts listed above is unlawful;

• an order and judgment preliminarily and permanently enjoining Defendants from continuing the above-described unlawful policies and practices; 

• a judgment ordering Defendants to train all court and Sheriff’s Office employees on the above-mentioned preliminary and permanent injunctions;

• a judgment compensating Plaintiffs and the Class of similarly-situated individuals for the damages that they suffered as a result of Defendant Pre-Trial Supervision’s unconstitutional and unlawful conduct, specifically all pre-trial fees paid to Defendant Pre-Trial Supervision; 

• an order and judgment granting reasonable attorneys’ fees and costs, pre- and post-judgment interest and any other relief the Court deems just and proper.