Michelle A. Liguori

Can you go to jail if you don’t pay your traffic tickets?  This question loomed behind a recent Eleventh Circuit appeal in Carter v. City of Montgomery. While the Eleventh Circuit had “no occasion to assess the legality, let alone the wisdom,” of jailing those who fail to pay traffic fines, the Court soundly affirmed the district court’s determination that a class action was not an appropriate vehicle for doing so. The decision, largely based on a lack of predominance of common issues under Federal Rule of Civil Procedure 23(b)(3), highlights the limitations on plaintiffs’ use of circumstantial evidence to meet their burden at class certification—especially where they rely on allegations of systemic practices.

Montgomery residents’ traffic fines are converted into jail sentences.

During the relevant time period, the City of Montgomery, Alabama converted unpaid fines for routine traffic offenses into jail sentences. When facing charges of traffic violations, Montgomery residents were given the option to either plead guilty or contest the charges in municipal court. The municipal court ordered those who pleaded or were found guilty to pay a fine. When residents could not pay the fines, the municipal court put them on probation. The City contracted with an outside correction service that offered extended payment plans to probationers who could not afford to pay and met with probationers who missed payments. If a probationer regularly missed payments and did not show up for meetings, the municipal court would hold a probation-revocation hearing to determine if probation should be revoked and the fine converted to a jail sentence.

Named plaintiffs Aldaress Carter, Angela McCullough, and seven others were among those who received jail sentences.

Several residents seek to litigate the constitutionality of their jail sentences and hundreds of others via class actions.

In two cases that were later consolidated on appeal, Mr. Carter, Ms. McCullough, and the other named plaintiffs challenged the legality of the procedures used at their probation-revocation hearings. Their primary contention was that the municipal court unconstitutionally jailed them without properly inquiring into their ability to pay, in violation of Bearden v. Georgia, 461 U.S. 660 (1983). Ms. McCullough sought to serve as the representative of a class of over 100 plaintiffs who were jailed in violation of Bearden. Bearden requires that, before sentencing a probationer to jail time for failing to pay a fine, the court must first (1) determine whether he or she made reasonable efforts to pay, and (2) consider whether adequate alternative methods for punishment exist.

The district court denied class certification. Among other things, the court concluded that common issues did not predominate over individualized ones in determining whether each putative class member received a proper Bearden inquiry. The plaintiffs relied on “Probation Tracker” and “Benchmark” records that the municipal court provided to the third-party correction service, which documented the outcomes of the municipal court’s probation-revocation hearings. These records contained only the outcomes of the hearings and did not speak to the process that the municipal court used before handing out jail time. As a result, the district court concluded that these records did not address “a Bearden claim’s core components” and they were thus insufficient to meet the plaintiffs’ burden to show that they could prove their claims on a common, class-wide basis.

Eleventh Circuit rejects attempt to create a class by inference.

The plaintiffs sought permission to immediately appeal under Rule 23(f), which the Eleventh Circuit granted, and then affirmed. 

The plaintiffs asked the Eleventh Circuit to overturn the district court’s predominance finding, based on their assertion that the municipal court had a “systemic practice” of not engaging in proper Bearden inquiries. This systemic practice, the plaintiffs contended, “solve[d] the predominance dilemma” because it showed Bearden violations on a class wide basis. The Eleventh Circuit disagreed, for three reasons.

First, the record did not show that the alleged systemic practice applied across the board. Rather, there was evidence that at least some of the time some municipal court judges did conduct proper Bearden inquiries. 

Second, the plaintiffs skirted their burden of proof. They primarily relied on an argument that, because the City lacked records of what happened during the hearings, the City could not prove that the municipal court had conducted Bearden hearings. This turned the burden of proof on its head. While the Eleventh Circuit acknowledged that it was not best practice for the City to fail to document Bearden inquiries, it was the plaintiffs’ burden to show that Rule 23(b)(3)’s predominance requirement was met—not the defendants’ burden to disprove it.

Third, the plaintiffs were misusing anecdotal evidence. They pointed to anecdotes of municipal courts ignoring Bearden, contending the jury could infer from that circumstantial evidence that Bearden was violated at each putative class member’s probation-revocation hearing. The Eleventh Circuit disagreed. It acknowledged that, in Klay v. Humana, Inc., 382 F.3d 1241, 1259 (11th Cir. 2004), it had permitted class plaintiffs to use circumstantial evidence. But the permission granted in Klay “was tailored to a specific context.” 

Klay involved RICO claims by a group of doctors suing insurers. The plaintiff doctors alleged a single nationwide conspiracy among HMOs to systematically program their computer systems to underpay the doctors for their services. The Klay plaintiffs were not asking the jury to infer the commission of wrongful acts against individual doctors. Instead, they sought to use circumstantial evidence to prove a narrower element of their claim—that the doctors relied on the insurers’ class-wide misrepresentations that the insurers would reimburse the doctors for medically necessary services. 

In Carter, on the contrary, the probationer plaintiffs would be asking a jury to infer the commission of wrongful acts against each putative class member. They would be “asking a jury to use anecdotal evidence to extrapolate to a conclusion about what occurred at each probationer’s revocation hearing.” This “would require a much more significant inferential leap” than in Klay, where the Court concluded, on the facts of that case, that misrepresentations could be shown on a class-wide basis and the jury was being asked to infer circumstantially only that doctors relied on those misrepresentations.

Because the harms experienced by the probationers in Carter arose from “a variety of individual incidents,” they could not satisfy the predominance requirement, even if “those harms occurred pursuant to corporate policies.” Thus, while Mr. Carter, Ms. McCullough, and the other named plaintiffs may be able to seek individual relief for the time each of them spent in jail, they will not be able to string together claims of hundreds of other jailed probationers and litigate them in one fell swoop based on allegations of a systemic practice, the defendant’s substandard record keeping, and anecdotes.

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What does Carter tell us about the limitations of circumstantial evidence at class certification?  To meet their burden, plaintiffs must show that common, class-wide evidence establishes that each individual member of the putative class was subject to a legal violation. They cannot rely on evidence that the defendant sometimes violated the law and ask the jury to infer from it that the defendant always violated the law. Rather, where plaintiffs rely on allegations of systemic practices, they need affirmative evidence that the defendant had a uniform practice that applied to all members of the putative class and that actually resulted in a legal violation to each one. Without class-wide evidence of legal violations, individualized fact-finding is needed to determine whether each class members’ rights were violated. The result is a series of individualized claims—not a class action.