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Bairefoot v. City of Beaufort

United States District Court, D. South Carolina, Beaufort Division

May 16, 2018

Tina Renee Bairefoot, et al., Plaintiffs,
v.
City of Beaufort, South Carolina, et al, Defendants.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         This matter is before the Court on Defendants' motion to dismiss. For the reasons set forth below, the Court denies the motion.

         I. Background

         A. Plaintiffs

         Plaintiff Tina Bairefoot was convicted of shoplifting miscellaneous merchandise worth approximately $163 from a Walmart. (Dkt. No. 1 ¶ 57.) She was not represented by an attorney and she was not advised of her right to counsel. (Id. ¶¶ 59-66.) Beaufort Municipal Judge Ned Tupper sentenced her to pay a fine and court costs of $2, 220, or to serve thirty days in jail. See Beaufort County, Public Index, availableat http://publicindex.sccourts.org/Beaufort/PublicIndex/PISearch.aspx [hereinafter "Beaufort County Judicial Records"].[1] Ms. Bairefoot's income is below the federal poverty guidelines.[2](Dkt. No. 1 ¶ 55.) Although Beaufort court records appear to indicate that Ms. Bairefoot was incarcerated because she was unable to pay that fine, Plaintiffs allege with specificity that Ms. Bairefoot was sentenced to incarceration immediately upon conviction on February 6, 2017. (Id. ¶ 66.) She served 15 days. (Id. ¶ 67.)

         Plaintiff Dae'Quandrea Nelson was convicted of third-degree assault and battery and disturbing the schools. (Id. ¶ 100.) The charges arose from a fight between students at a high school that occurred when Mr. Nelson was a 17-year-old student. (Id. ¶ 76.) He was not represented by an attorney and he was not advised of his right to counsel. (Id. ¶¶ 86, 93, 102.) When he first appeared in Bluffton Municipal Court on February 2, 2016, he applied for pretrial intervention and his application was accepted. (Id. ¶ 83-88.) Mr. Nelson however failed to complete required weekend community service and he failed to pay a required $30 fee (although he had already paid $350 to apply to pretrial diversion), so he appeared again in Bluffton Municipal Court on February 21, 2017. (Id. ¶¶ 87-89, 93.) Judge Dustin Lee sentenced him to pay a fine and court costs of $3, 212.50, or to serve two concurrent 30-day jail sentences. See Beaufort County Judicial Records. Mr. Nelson's income is below the federal poverty guidelines. Mr. Nelson was incarcerated immediately upon sentencing. (Dkt. No. 1 ¶ 101.) Mr. Nelson served 16 days in jail. (Id. ¶ 103.)

         Plaintiff Nathan Fox was convicted of speeding (10 mph or less), no proof of insurance, driving under a suspended license (third or subsequent offense), use of a license plate issued for a different vehicle, and defacement of a license plate. (Id. ¶ 108.) Judge Ned Tupper set a cash bond of $2, 926.25, an amount apparently calculated to equal the expected fine and court costs of the charges. (M ¶IIO.) Mr. Fox's income is below the federal poverty guidelines. (Id. ¶ 107.) He was unable to post the cash bond and remained in jail for three weeks awaiting trial. (Id. ¶ 113.) He appeared before Beaufort Municipal Judge Mary Sharp on February 20, 2017. He was not represented by an attorney and he was not advised of his right to counsel. (Id. ¶¶ 114, 116.) He pleaded guilty to the charges. (Id. ¶ 115.) Judge Sharp did not hold a plea colloquy with Mr. Fox. (Id.) She sentenced him to a fine and court costs of $2, 879.38 and five consecutive 10-day jail sentences for the five charges, even though South Carolina law does not authorize imprisonment for one of those charges (speeding less than 10 mph). See S.C. Code § 56-5-1520(G); Beaufort County Judicial Records; (Dkt. No. 1 ¶ 115). After sentencing, he returned to the Beaufort County Detention Center under two bench warrants from magistrate court. (Dkt. No. 1 ¶ 117.) Ultimately, Mr. Fox spent 38 days in jail on the five municipal charges. Beaufort County records indicate that may have been sentenced to jail on the traffic charges for inability to pay the $2, 879.38 fine, see Beaufort County Judicial Records, but that is unclear because of the warrants for Mr. Fox's arrest on other charges.

         B. The municipal court system

         In South Carolina, municipal courts are optionally created by municipalities to hear petty criminal cases. See S.C. Code § 14-25-5. Where there is no municipal court, such cases are heard by magistrate courts. The municipal judges often are lawyers in private practice who serve in a part time capacity, but they are not required to be lawyers.[3] They are part of the unified state judicial system under the supervision of the Chief Justice of South Carolina, SC Code § 14-25-5(a), but the municipalities appoint and reappoint the judges for terms of two to four years and the municipalities set the judges' compensation, SC Code § 14-25-15(A).

         Before 2009, the Public Defender for the Fourteenth Judicial Circuit provided representation to indigent defendants in Beaufort and Bluffton Municipal Courts. (Id. ¶ 30.) In 2009, Defendants ignored requests from the public defender for funding to cover those services. Consequently, the public defender notified the municipal judges that the public defender would no longer provide representation and the municipalities that they needed to contract with private attorneys to provide indigent defense they needed to contract with private attorneys. (Id. ¶ 30.)

         Thereafter, in 2015, the state legislature required municipalities that elect to have a municipal court to provide adequate funds for representation of indigent defendants. Act No. 91, 2015 S.C. Acts 429, 884 (2015) [hereinafter "Proviso 61.12"]. The legislature has reenacted that requirement each subsequent fiscal year. The Municipal Association of South Carolina's October 2015 newsletter, under the banner headline "Indigent defense costs are municipal responsibility, " informed South Carolina's municipalities that this law gave them "four potential courses of action":

1. Negotiate an agreement for indigent defense with the circuit public defender. Several cities and towns have already taken this option.
2. Contract with an independent attorney for a fee or pro bono. Before contracting with the attorney, the town should ensure the attorney has malpractice insurance.
3. Remove the threat of jail time for indigents, although this makes it more difficult to collect any fines that might be imposed on the defendant.
4. Close the municipal court and negotiate an agreement with the county to have municipal cases tried in magistrate court.

Mun. Ass'n of S.C, Indigent defense costs are municipal responsibility, Uptown, Oct. 2015 (cited at Dkt. No. 1 ¶ 27). It also warned, "Failure to provide indigents with counsel could expose cities to liability" and "advocacy groups around the country are seeking opportunities to sue cities that violate the indigent defendant's right to counsel." Id.

         Defendants nonetheless failed to provide counsel for indigent defendants before Plaintiffs were sentenced to jail in 2017. At an April 25, 2017 Beaufort City Council meeting, city operations manager Linda Roper discussed with the city council a request for $10, 000 in fiscal year 2018 to contract with a private attorney to provide municipal court indigent defense, which she described as "a mandate from the state." Beaufort City Council, Minutes, April 25, 2017, at 2. The Beaufort Municipal Court annual budget is approximately $500, 000 and the court generates about $220, 000 in revenue. Id. at 2-3. Ms. Roper recommended contracting with a private attorney rather than the public defender because the public defender has a case backlog and because Beaufort would get more "bang for the buck" from a local attorney retained by the council than from the public defender for the Fourteenth Judicial Circuit, who operates beyond the control of the City of Beaufort. Id. at 2. Councilman Philip Cromer asked if Beaufort could simply pay a fine rather than provide counsel for indigent defendants as required by law. Id. Councilman Mike McFee noted that course of action could result in litigation brought by the American Civil Liberties Union ("ACLU"). Id. [4]

         Around the time of those discussions, at least fifty unrepresented persons were sentenced to incarceration in Beaufort and Bluffton municipal courts (Dkt. No. 1 ¶ 41 (period March 21 to June 19, 2017)) and 36% of the inmates in the Beaufort County Detention Center were incarcerated on municipal court charges without the assistance of counsel (Id. 1 ΒΆ 42 (as of July 1, 2017)). On September 15, 2017, the Chief Justice of South Carolina issued a memorandum to all municipal court judges instructing them that "[a]ll defendants facing criminal charges in your courts that carry the possibility of imprisonment must be informed of their right to counsel and, if indigent, their right ...


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