United States Magistrate Judge Joe J. Volpe has issued a recommendation that the federal civil rights case over Sherwood’s hot check court, which plaintiffs had decried as an unconstitutional “debtor’s prison” that kept defendants on a hamster wheel of debt and incarceration for decades, be dismissed without prejudice.

 The ACLU of Arkansas, the Lawyers’ Committee for Civil Rights Under Law and the law firm of Morrison and Foerster, an international law firm with 16 offices around the world, filed suit against Pulaski County, the City of Sherwood and Judge Milas “Butch” Hale on behalf of five plaintiffs last August.


Volpe cited Younger v. Harris, a 1971 case argued before the U.S. Supreme Court. That case established the “Younger Abstention Doctrine,” which requires federal courts to avoid exercising jurisdiction in cases involving an ongoing state proceeding. In his recommendation Volpe noted that “there are ongoing state proceedings, and these proceedings implicate important state interests in overseeing its laws regarding the prosecution of hot checks.” Volpe said the plaintiffs in the case can and should, therefore, raise their constitutional issues in state court.

Arkansas Times published a cover story about the lawsuit and the Sherwood court of Judge Milas “Butch” Hale III, last summer.


From Volpe’s recommendation:

Except Philip Axelroth, each Plaintiff admits that he or she “still faces” unpaid costs, fines, and fees and the “likelihood that [he or she] will be incarcerated again in the future.”Additionally, Plaintiffs do not dispute Defendants’ assertion that “each Plaintiff is a defendant in a criminal proceeding now pending before the Sherwood District Court . . . .” The Younger abstention doctrine requires a federal district court to “abstain from exercising jurisdiction when (1) there is an ongoing state proceeding, (2) which implicates important state interests, and (3) there is an adequate opportunity to raise any relevant federal questions in the state proceeding.

Volpe went on to say that he didn’t recommend dismissing the case lightly.


Reached by email, ACLU of Arkansas Executive Director Rita Sklar said ACLU-Arkansas respectfully disagrees with the magistrate’s recommendation, but added:

[T]he recommendations of the magistrate do not touch the merits of our clients’ claims and instead are based on procedural/jurisdictional matters. We are heartened that the magistrate judge denied all the defendants’ arguments except for this narrow issue. We believe the federal courts can and should exercise their power to review governmental practices such as these to ensure they are consistent with the Constitution. The arguments put forth by the defendants in the case seek to insulate government actions from review. We will continue to fight for the rights of our clients and others subject to abusive debtors’ prison practices. 

You can read Volpe’s recommendation in the case here: