Karr v. Blay

• Decision Date: 09 April 1976
• Docket Number: Civ. No. C72-447.
• Citation: 413 F. Supp. 579
• Parties: George Franklin KARR et al., Plaintiffs, v. Merle BLAY et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

413 F. Supp. 579

George Franklin KARR et al., Plaintiffs, v. Merle BLAY et al., Defendants.

Civ. No. C72-447.

United States District Court, N. D. Ohio, W. D.

April 9, 1976.

COPYRIGHT MATERIAL OMITTED

Advocates For Basic Legal Equality, Toledo, Ohio, for plaintiffs.

Anthony G. Pizza, Lucas County Prosecutor, Joseph Goldberg, Toledo, Ohio, for defendants.

OPINION AND ORDER

DON J. YOUNG, District Judge:

This cause comes to be heard upon motion of plaintiffs for summary judgment. Jurisdiction is predicated upon 28 U.S.C. § 1343(3) and (4) which empower this Court to hear actions to redress deprivations, under color of state law, of federal rights and to grant appropriate relief. The Court is authorized to grant declaratory relief pursuant to 28 U.S.C. § 2201 and further relief pursuant to 28 U.S.C. §§ 2202 and 2283. This cause of action arises under 42 U.S.C. § 1983, which is too well known to be required to be set forth in full herein.

I.

What follows is a summary of those parts of the history of this action pertinent to ruling on this motion.

This action was originally brought by plaintiff George Karr on December 14, 1972, against defendants Judge Connors and Superintendent Blay, seeking to have § 2947.14 and § 2947.20 of the Ohio Rev. Code declared unconstitutional in that they authorized defendants to incarcerate plaintiff for failure to pay a fine imposed as a sentence without judicial inquiry into plaintiff's ability to pay the fine. Plaintiff requested the convening of a three-judge court to review the constitutionality of the statutory provisions. A three-judge panel was constituted by order filed July 2, 1973.

On June 18, 1974, in response to the motions of then plaintiff intervenors Stephan Pettaway, James Bursey, and Richard Lambrecht, the Court granted these named plaintiffs the right to intervene. As a result of the Court's order, Judges Roy Dague, Allen Andrews, and Marvyn Lachin, as well as Sheriff William Callanan, were joined as parties defendant.

Subsequent to the filing of the complaint, the Ohio Legislature enacted Ohio Rev.Code § 2929.12(F) and § 2929.22(F), which became effective January 1, 1974, and which prevent imposition of a fine in excess of an amount that a defendant can, or will be able to, pay. On September 6, 1974, plaintiffs, by leave of court, withdrew their motion for the convening of a three-judge panel on the ground that they no longer challenged the constitutionality of §§ 2927.14 and 2947.20, Ohio Rev.Code. Plaintiffs directed their attack only to the failure of defendants to comply with §§ 2929.12(F) and 2929.22(F). Accordingly, the three-judge panel was dissolved by memorandum and order filed November 14, 1974.

On September 6, 1974, plaintiffs also moved to have this action certified as a class action pursuant to Rule 23, Fed.R. Civ.P., as to both plaintiff and defendant classes. That motion was granted and the Court by order filed March 27, 1975, designated the plaintiff class and two defendant classes.

The plaintiff class consists of indigent inmates serving time in an Ohio prison or jail for failure to pay court ordered fines or costs because the judge who imposed the fine or costs did not determine at the time of sentencing whether or not the person was indigent.

One defendant class is defined as judges of the various Ohio courts having the power to impose a sentence upon a criminal defendant who fail to determine when a fine is imposed whether or not the person is able to pay it or who sentence indigent defendants to jail due to inability to pay fines or costs. The other defendant class in this suit consists of wardens or superintendents of Ohio's jails or prisons who have custody of these indigent inmates.

Hereafter these classes will be referred to as the plaintiffs, the judges, and the wardens.

On August 14, 1975, the parties lodged a proposed consent order signed by defendants Connors, Lachin and Callanan. On that same day, plaintiffs moved for summary judgment against the remaining defendants on the basis of affidavits affixed thereto and various stipulations of fact, notably stipulations filed December 26, 1973; November 4, 1974; and August 1, 1975. Defendants opposed the motion, relying on the stipulations of fact, without submitting affidavits.

On December 6, 1975, a motion to intervene was filed by plaintiff intervenors George A. Fawbush and Harshal sic on behalf of themselves and persons similarly situated. That motion was denied by memorandum and order filed January 30, 1976.

This motion for summary judgment is therefore addressed to the claims against defendants Blay, Andrews, Dague, and the classes whom they represent.

II.

It is clear that there are no disputes as to the material facts, practically all of which have been stipulated. As shown by stipulations and affidavits, the facts are that some of the judges are imposing fines upon members of the plaintiff class without inquiry into their ability to pay, contrary to the provisions of Ohio Rev.Code §§ 2929.12(F) and 2929.22(F), and confining them to pay those fines, and that the wardens are confining the plaintiffs on the sentences imposed by the judges.

Plaintiffs seek a declaratory judgment declaring their rights under the Due Process and Equal Protection Clauses of the Constitution to be free of such illegal confinement. They also seek injunctive relief, to restrain the judges from imposing fines improperly and improperly confining plaintiff for failure to pay the fines, and to require the judges to comply with the applicable Ohio Statutes.

The defendants contend that the Ohio Supreme Court has not construed the Ohio Statutes, and that the state law as to the interpretation of these statutes is unsettled, so that the Court should abstain from acting at this time. They also make other contentions with respect to the inclusion of one of the named plaintiffs in the class of plaintiffs, mootness, and that the plaintiffs have adequate remedies at law.

III.

As previously stated, it is clear that the case is in a posture for summary judgment, as there is no dispute as to the material facts or any inferences to be drawn from them. Rule 56, Fed.R.Civ.P.

There is no reason for abstention, even assuming that the Ohio Supreme Court has not yet construed the Ohio Statutes in question. Without making an analysis of the Ohio law, it is clear that when this action was commenced, the existing Ohio Statutes did not conform to the requirements of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and, in fact, the Supreme Court of Ohio had so held. In re Jackson, 26 Ohio St.2d 51, 268 N.E.2d 812 (1971). The only problem was that that court had also held that the claim of inability to pay must be asserted by the individual, In re Copley, 29 Ohio St.2d 35, 278 N.E.2d 358 (1972), and that the failure of the trial court to make inquiry into the ability to pay, or to inform the individual of his right not to be imprisoned if he were indigent, did not void the immediate conversion of a fine into imprisonment. Blom v. Metzger, 30 Ohio St.2d 291, 285 N.E.2d 48 (1972).

It is arguable that the adoption of §§ 2929.12(F) and 2929.22(F) of the Ohio Rev.Code, which became effective January 1, 1974, was intended to, and did, reverse the two latter decisions of the Supreme Court of Ohio. Certainly it was agreed by the parties, and found by this Court, that this legislative action eliminated any question of the constitutionality of the Ohio Statutes from this case. However, whatever conclusion the Ohio Supreme Court may ultimately reach as to the effect of the statutory changes upon its decision in the Copley and Blom cases is a matter of no consequence, for the new Ohio Statutes amply make clear that a criminal defendant has the right under the Constitution, as set forth in Williams and Tate, not to be imprisoned for non-payment of a fine if he were indigent, for they forbid the imposition of any fine at all upon an indigent defendant. No one can be imprisoned for failure to pay a fine which is not imposed.

This brings the case within the long-established and elementary constitutional rue that a defendant cannot be deprived of his liberty by an unknowing and silent waiver of his rights. In order for a member of the class of plaintiffs to waive his claim of indigency, the waiver must be competent and intelligent. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Hence, no member of the class of judges can, under the Ohio law, impose a fine in a criminal case until he has assured himself that the defendant has made a knowing and intelligent waiver of his right to have his ability to pay the fine determined.

Thus this case does not present any question of abstention, for it does not deal with questions of state law, but with long-standing general principles of constitutional law.

The other questions raised by the defendants, such as the definition of the class, and mootness, have already been ruled upon by this Court in its prior memoranda filed herein. There is no reason either to repeat those rulings, or to depart from them, at this time.

There is only one point in which, as a result of the Court's definition of the classes, some redetermination of the prior rulings is required.

In its memorandum filed June 18, 1974, this Court declined to dismiss the action on the basis of the Supreme Court's decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). So far as the defendant class of judges is concerned, it remains clear that the relief sought does not affect the custody of any of the plaintiff class. However, the definition of the two classes of defendants makes it clear that as to the class of wardens, the relief sought does not affect anything but custody. As to the wardens, therefore, the case seems clearly within the ruling in Preiser, and as to that class the...