When the Orleans Parish Criminal District Court (“OPCDC”) orders a defendant to sign up for ankle monitoring, the defendant must choose from three private ankle monitoring providers operating in Orleans Parish, one of which is ETOH Monitoring, LLC (“ETOH”). Their fees for ankle monitoring are significant: ETOH charges defendants a $100 installation fee plus $8.50 to $10 per day.
Plaintiffs brought suit against ETOH and a criminal court judge, Judge Bonin, alleging that the judge’s personal, financial, professional, and political ties to ETOH resulted in him ordering or steering defendants to ankle monitoring services with ETOH, in violation of the Due Process Clause.
Plaintiffs contend that the Due Process Clause’s guarantee of neutrality in judicial decision-making extends to private actors engaged in joint activity with actors performing public or government functions, and thus their rights were violated because Judge Bonin ordered, steered, or otherwise permitted criminal defendants before him to pay ankle monitoring fees to ETOH without “full and adequate disclosure” of his relationships with ETOH and the availability of alternative providers. Specifically, Plaintiffs allege that Judge Bonin failed to disclose that Levenson, an ETOH principal, was Judge Bonin’s law partner for over a decade before he was elected judge, and that Levenson along with Helmke, another ETOH principal, donated $8,650 to Judge Bonin’s three judicial election campaigns and made one loan of $1,000 to his 2016 campaign. Plaintiffs voluntarily dismissed Judge Bonin from the case when he announced his retirement from the bench. As it relates to ETOH, Plaintiffs seek a classwide order declaring that their due process rights were violated and an injunction prohibiting ETOH from collecting any pending or outstanding fees incurred by the class and assessing future fees against class members. Plaintiffs further request that ETOH be ordered to disgorge any fees already collected from class members since 2017.
ETOH moved to dismiss, arguing that Plaintiffs failed to state a claim because ETOH is not a state actor, did not act under color of state law, and did not conspire with or act in concert with any state actor. The court rejected ETOH’s argument, reasoning that “[u]nder the Supreme Court’s ‘public function’ test, a private entity acts under color of state law ‘when that entity performs a function which is traditionally the exclusive province of the state.’” Rosborough v. Mgmt. & Training Corp., 350 F.3d 459, 460 (5th Cir. 2003) (per curiam) (citation omitted). The court explained that ETOH is a state actor because monitoring pretrial defendants, including via ankle monitoring, is a “fundamentally governmental function” that is “traditionally reserved to the state.” Rosborough, 350 F.3d at 461; accord Ayo v. Dunn, 2018 WL 4355199, at *2. The court therefore concluded that ETOH is a state actor and denied ETOH’s motion to dismiss.
The court did not address the parties’ arguments concerning the “joint action” test because it was unnecessary given that it already concluded that ETOH is a state actor under the public function test. The case currently remains before the district court.
You can read all relevant court documents here.