from the what’s-a-little-appearance-of-impropriety-among-friends dept
Every so often, the Fifth Circuit Appeals Court will surprise you with a well-reasoned decision that cuts against the grain of its usual pro-cop, pro-censorship, pro-“conservative values” output. This one, brought to us by Raffi Melkonian, unfortunately isn’t one of those exceptions. This one is more aligned with the rule.
This potential class-action lawsuit, brought by parolees represented by the Institute of Justice, alleged a Louisiana judge was making a mockery of due process by forcing defendants to use his preferred ankle monitoring contractor, which coincidentally had been formed by the judge’s former law partner and run by donors to his judicial election campaigns.
There’s an appearance of judicial impropriety here and you don’t even have to squint to see it. Christian Helmke and Leonard Levenson formed ETOH Monitoring in 2006. Here’s a little more on the judge and his connections to the founders of ETOH Monitoring, taken from the Fifth Circuit opinion [PDF]:
In 2016, Paul Bonin was elected as a judge on the OPCDC. During his campaign, Bonin accepted donations totaling $3,550 and a loan of $1,000 from Helmke and Levenson through their law firms. Levenson is Judge Bonin’s former law partner. Before serving on the district court, Judge Bonin had been a state appellate judge for eight years. Levenson and Helmke had donated $5,100 to his election campaigns for that position.
Maybe none of that would have mattered. But Judge Paul Bonin made sure it mattered. ETOH is one of three ankle monitoring options provided to defendants in Orleans Parish District Court. However, in Judge Bonin’s court, there was always only one option.
When ordering ankle monitoring, Judge Bonin regularly directed defendants to make arrangements with ETOH. He did not disclose the availability of other providers. After defendants obtained monitors, ETOH sent monthly reports to Judge Bonin about their payment status. Judge Bonin warned some defendants that nonpayment could result in their jailing. He conditioned some defendants’ release from their ankle monitors on their completing payments to ETOH. In one case, Judge Bonin conditioned a defendant’s release on completing payment to ETOH even though Judge Bonin considered waiving other costs the defendant was obligated to pay.
That certainly looks a bit corruption-y. Ankle monitoring isn’t cheap. ETOH charges defendants $10/day for the privilege of being monitored. And Bonin not only funneled defendants to a business run by his former law partner, but actually deprived them of their freedom until they threw some money in the direction of two of his campaign donors.
The lower court dismissed the lawsuit, saying nothing here added up to a due process violation. The Fifth Circuit — in this unpublished decision — says the same thing. Sure, it may look a little crooked, but it’s not enough to get the Constitution involved.
Our decision does not address the general legality or propriety of Judge Bonin’s conduct. We rule only on the question this case presents: whether ETOH had ties with Judge Bonin that created an unconstitutional risk of bias. Unexceptional campaign contributions and past business relations do not present an “extraordinary situation” in which due process is implicated. Individually and in their totality, the ties between ETOH and Judge Bonin do not rise to the level of a constitutional violation.
Further complicating the matter is the fact that Bonin did not seek re-election in 2020, so he’s no longer in the position to force defendants to patronize his preferred ankle monitoring service. Add that to judicial immunity, and the sad fact is that even if the Fifth Circuit had recognized this seemingly obvious constitutional violation, the lawsuit would have been dismissed for those reasons. And while that loss would still have been a loss, it might have been more meaningful than the shrug the plaintiffs received here that basically says it’s ok to generate a constant appearance of impropriety so long as those you’re favoring haven’t spent too much money keeping you in office.
Filed Under: 5th circuit, ankle monitoring, judge paul bonin, orleans parish
