Hilda Brucker v. City of Doraville ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10122
____________________
HILDA BRUCKER,
JEFFERY THORNTON,
JANICE CRAIG,
BYRON BILLINGSLEY,
Plaintiffs-Appellants,
versus
CITY OF DORAVILLE,
a Georgia municipal corporation,
Defendant-Appellee.
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2 Opinion of the Court 21-10122
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-02375-RWS
____________________
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
The plaintiffs in this lawsuit—Hilda Brucker, Jeffery
Thornton, Janice Craig, and Byron Billingsley—accuse the City of
Doraville, Georgia, of violating their right to due process. Each of
the four plaintiffs received citations from the City for traffic or
property code violations, were convicted of those violations, and
were ordered to pay fines and fees by the municipal court. They
allege that this process presented an unconstitutional risk of bias
because the City’s budget heavily relies on fines and fees, and this
reliance could encourage the judge, prosecutor, and law enforce-
ment agents—all paid by the City—to overzealously enforce the
law. The upshot of this risk of bias, they contend, is that the City’s
financial dependence on fines and fees is unconstitutional. We dis-
agree. It may be unwise for a government to rely on fines and fees
to balance its budget. But the importance of fines and fees to a city’s
budget does not make its procedures for imposing fines and fees
unconstitutional. The district court therefore correctly granted
summary judgment to the City, and we affirm.
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21-10122 Opinion of the Court 3
I. Background
A. Factual Background
The City of Doraville, Georgia, is governed through its city
council, which makes final decisions on its budget. The City mainly
uses its general fund to pay for its operations. From 2015 to 2019,
roughly 11 to 25 percent of that fund consisted of fines and fees
collected through the City’s municipal court. That percentage has
trended downward over time, and the parties dispute whether it is
high compared to those of similar cities. But the City has shown
that it considers the municipal court to be an important source of
funds. For example, a government newsletter stated that “bringing
in over $3 million annually, the court system contributes heavily to
the city’s bottom line.” And when a glitch in the court’s scheduling
system caused delayed court dates, the City created an “action
plan” to “restore municipal court fines and forfeitures to previous
levels.”
The City’s laws are administered in relevant part by four en-
tities: the municipal court, the prosecutor, the police department,
and the code enforcement agents.
1. Municipal Court
The municipal court consists of a single judge, and a court
clerk manages its operations. The judge’s work consists largely of
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4 Opinion of the Court 21-10122
bench trials and sentencing for traffic citations, misdemeanor crim-
inal charges, and city ordinance violations.
The court once employed three judges, but the other two
were terminated due to budgetary constraints. The current judge
has been in office for twenty-eight years. The City has cut his em-
ployment benefits for financial reasons, but he is paid a fixed
amount independent of case outcomes. And he believes that he can
be terminated only for cause. The judge has very little interaction
with other parts of the City government, and he has not spoken to
a city council member or the mayor in years. He does not report
to or receive direction from anyone within the City. He has no ex-
ecutive authority or input on the City’s finances, and he is unaware
of how much revenue his court generates. Parties can appeal the
municipal court judge’s decisions to the Superior Court of DeKalb
County. Doraville, Ga., City Charter § 3.05.
2. Prosecutor
The prosecutor is a contractor that serves at the pleasure of
the city council. He is paid a fixed amount for every court session.
Those sessions occur twice per week. When defendants want to
contest or negotiate their citations instead of paying the court clerk,
they speak with the prosecutor. If they reject his plea offer, he sends
the case to the judge for a bench trial or to state court. The prose-
cutor does not file cases arising from police citations, and he does
not control the court schedule.
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21-10122 Opinion of the Court 5
In his role as prosecutor, he has no executive responsibility
for the City’s finances and is not involved in budgetary decisions.
He does sometimes share the role of city attorney with his brother.
And the city attorney has attended city council meetings where
budget documents were discussed. But it is usually the brother that
attends those meetings, and his participation focuses on non-budg-
etary policy matters. The prosecutor has stated that no one has
ever directed him to perform his duties in a way that furthers the
City’s budgetary interests.
3. Police Department
The City’s police issue citations, file charges, and try their
own cases before the municipal court. In recent years, roughly half
of the general fund has gone to the police department. The chief of
police makes budget proposals for the police department based on
its forecasted expenditures. He has stated that the city council has
never directed him or his officers to increase enforcement to meet
budgetary expectations. Nor has the department used quotas for
the number of citations issued.
4. Code Enforcement
The City contracts with a private company to enforce its
property code. The City periodically renews the contract, and it
pays the code enforcement officers at an hourly rate. Through the
city manager, the city council can direct the firm to focus on par-
ticular priorities. Code enforcement costs much more money than
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it generates, and revenues from code enforcement amount to less
than 10 percent of the fines and forfeitures collected by the City.
B. Procedural Background
Each of the plaintiffs was cited for a traffic or property code
violation. They later filed a civil rights action against the City under
42 U.S.C. § 1983 and 28 U.S.C. § 2201. They alleged that the City
violated their procedural due process rights through biased adjudi-
cation, prosecution, and law enforcement.
The City moved to dismiss under Federal Rules of Civil Pro-
cedure 12(b)(1) and 12(b)(6), which the district court denied. Both
parties later cross-moved for summary judgment. The district
court denied the plaintiffs’ motion, granted the City’s motion, and
entered final judgment. It reasoned that, although the City relies
heavily on revenues from fines and fees, the municipal court judge
experiences no pressure to generate those revenues and lacks exec-
utive authority over finances. It concluded for similar reasons that
the prosecutor was not biased, emphasizing that the standard of
impartiality is much lower for prosecutors. As for the police, the
court did not find a link between fine revenue and police staffing.
And it concluded that the City does not direct police operations to
increase revenue. Finally, it found that the code enforcement
agents were not biased because they generate a small portion of
penalty revenue, operate at a loss, and are paid a flat hourly rate. It
thus granted summary judgment on all the claims to the City. The
plaintiffs then timely filed their notice of appeal.
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II. Standard of Review
This Court reviews the district court’s grant of summary
judgment de novo, “construing the facts and drawing all reasona-
ble inferences in favor of the nonmoving party.” Fernandez v.
Trees, Inc., 961 F.3d 1148, 1152 (11th Cir. 2020). Summary judg-
ment is proper if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “If no reasonable jury could return a verdict in favor
of the nonmoving party, there is no genuine issue of material fact
and summary judgment will be granted.” Morton v. Kirkwood,
707 F.3d 1276, 1284 (11th Cir. 2013) (quoting Beal v. Paramount
Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994)).
III. Discussion
It is undisputed that the City raises a substantial percentage
of its funds by imposing fines and fees for traffic violations and the
like. There is no doubt, therefore, that the City as a governmental
entity has an actual financial interest in imposing fines and fees—it
gets the money. So the question for us is: Does the City’s financial
interest create an actual bias or a constitutionally unacceptable risk
of bias that transfers to the City’s employees? Specifically, the plain-
tiffs argue that the municipal court judge, the prosecutor, the po-
lice officers, and the code enforcement agents all were infected
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with a risk of bias that violated the plaintiffs’ due process rights.
The City argues that its interest in revenue is not transferable to its
individual employees, especially its judge. We examine each of
these municipal employees in turn.1
A. Municipal Court Judge
We’ll start with the judge. Under the Due Process Clause,
the plaintiffs were entitled to an “impartial and disinterested tribu-
nal.” Harper v. Pro. Prob. Servs. Inc., 976 F.3d 1236, 1241 (11th Cir.
2020) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)). A
judge cannot have an actual bias, and, in some situations, the mere
“probability of actual bias” is “too high to be constitutionally toler-
able.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877, 886–87
(2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Ulti-
mately, a judge flunks this constitutional test if he or she has an
interest that “would offer a possible temptation to the average man
as a judge to forget the burden of proof required to convict the de-
fendant, or which might lead him not to hold the balance nice,
clear, and true between the state and the accused.” Ward v. Vill. of
1 The City also argues that the Rooker-Feldman doctrine precludes us from
reviewing the merits of the plaintiffs’ claims. We disagree. The Rooker-Feld-
man doctrine prevents federal district courts from reviewing or overturning
state court judgments. Behr v. Campbell, 8 F.4th 1206, 1212 (11th Cir. 2021).
But Rooker-Feldman is a narrow doctrine with limited applicability. Id. And
we have specifically held that it did not apply in a case, like this one, where a
plaintiff sought damages for a procedural due process violation arising from
state court proceedings. Id. at 1213.
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21-10122 Opinion of the Court 9
Monroeville, 409 U.S. 57, 60 (1972) (cleaned up) (quoting Tumey
v. Ohio, 273 U.S. 510, 532 (1927)). With respect to financial inter-
ests, a judge can be disqualified by his own financial interests or by
the interests of the government that he serves. See Harper, 976 F.3d
at 1241–42. But to be biased by the government’s financial interests,
the Supreme Court has held that the judge must have some execu-
tive responsibility over its finances that may tempt him or her to
forsake impartiality. See Ward, 409 U.S. at 60; Dugan v. Ohio, 277
U.S. 61, 63–65 (1928).
As a preliminary matter, the plaintiffs argue that we should
evaluate the bias of the whole City government instead of limiting
our analysis to the judge as an individual. To this end, they rely on
our decision in Harper v. Professional Probation Services Inc., 976
F.3d at 1243–44, in which we held that a for-profit probation ad-
ministration company had an unconstitutional interest in enhanc-
ing probationers’ sentences where it received money for every
month they remained on probation. Id. We looked to the financial
interests of the for-profit company as an entity, not those of its in-
dividual employees, because the company had allegedly promul-
gated a “policy or custom” that made its employees’ conduct part
of “one central scheme” that caused the constitutional violation.
Id. at 1244 n.10; see Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978). Among other things, the plaintiffs in Harper alleged that
the for-profit company “maximize[d] its profit by extending” the
length of probation, increasing “the amount of fines from what was
ordered at sentencing,” and “present[ing] unsworn and
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inadequate—or sometimes false—statements” at probation review
hearings. Harper, et al. v. Professional Probation Services, Inc., et
al., Second Amended Complaint, Doc. 56 at 26–28, 2:17-cv-01791
(Apr. 23, 2018).
We think Harper is inapposite. The most obvious difference
between this case and Harper is that the judge is the sole deci-
sionmaker in the matters coming before him, and he receives no
direction from the rest of the City or its leadership. Unlike in Har-
per, the plaintiffs have failed to point to any policy or custom guid-
ing the disposition of individual cases. Granted, they argue that the
City has a practice of relying on fines and fees for funding. They
say the City has a “policy, practice, and custom of budgeting for,
and relying on, revenue from fines, fees, and forfeitures generated
by its code enforcement, policing, and municipal court systems.”
But that budget policy does not purport to control the judge’s dis-
position of individual cases. At one time, the City’s finance depart-
ment formed an “action plan” to “restore Municipal Court fines
and forfeitures to previous levels.” But that plan involved the court
clerk resolving “scheduling issues” that caused late and infrequent
court sessions. Those efforts did not concern the judge or purport
to direct or guide his decision-making.
We are also convinced that to read Harper as the plaintiffs
suggest would ignore the Supreme Court’s on-point decisions in
Ward and Dugan. In each of those cases, fines and fees went to the
city, not the mayor who imposed them, but the Supreme Court
scrutinized only the mayor’s impartiality as a separate adjudicator.
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In Dugan, the Supreme Court held that the mayor was sufficiently
unbiased to adjudicate fines and fees because his functions were
exclusively judicial, and he did not exercise the city’s executive
power. See Dugan, 277 U.S. at 65 (“The mayor has himself as such
no executive, but only judicial, duties” so “[h]is relation . . . to the
fund contributed to by his fines as judge, or to the executive or fi-
nancial policy of the city, is remote.”). Conversely, in Ward, the
Supreme Court held that adjudication by a municipal mayor vio-
lated due process because he had some control over the expendi-
ture of the moneys that were raised. See 409 U.S. at 60 (A “‘possible
temptation’ may also exist when the mayor’s executive responsi-
bilities for village finances may make him partisan to maintain the
high level of contribution from the mayor’s court.”). If the plain-
tiffs’ argument were correct here, then Ward and Dugan would
have been much more straightforward: the Court would have
looked to the City’s interest as a whole, held both mayors to be
biased, and would have done so in Ward without any showing that
the mayor controlled the city’s finances. Because there is nothing
to connect the City as an entity to the judge’s disposition of partic-
ular cases, we limit our analysis to whether the judge suffers any
biases himself.
Turning now to the municipal judge as an individual officer,
the plaintiffs do not argue that the judge was actually biased by his
own financial or other interests. Instead, they argue that the judge
has a constitutionally unacceptable risk of bias. First, they contend,
and it’s undisputed, that the judge has a financial interest in keeping
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his job. Second, they assert—and, again, it is undisputed—that the
City depends on revenues from fines and fees. Therefore, they rea-
son that there is an unconstitutional risk that the judge will be bi-
ased toward generating revenue to preserve his job. Although no
one disputes the plaintiffs’ premises—that the judge has an interest
in keeping his job and the City’s budget relies on fees and fines—
we cannot agree with their conclusion.
The fact that a judge works for a government, which gets a
significant portion of its revenues from fines and fees, is not enough
to establish an unconstitutional risk of bias on the part of the judge.
In arguing as much here, the plaintiffs invoke the principle stated
in Caperton v. A.T. Massey Coal Co. that a judge may be disquali-
fied because of an unconstitutional “potential for bias.” See 556
U.S. at 881. Of course, we do not dispute that principle. But it is not
broad enough to disqualify Doraville’s municipal court judge.
Caperton was an “exceptional case” dealing with “extreme
facts,” id. at 884, 886–87, and its holding “was narrow.” United
States v. Rodriguez, 627 F.3d 1372, 1382 (11th Cir. 2010). There, an
elected judge had received millions of dollars in campaign contri-
butions from a single donor. Caperton, 556 U.S. at 884–85. Mean-
while, that same donor’s company was a party to high-stakes litiga-
tion that would foreseeably come before the newly elected judge.
Id. at 886. Given the donor’s “significant and disproportionate in-
fluence” on the election, together with “the temporal relationship
between the election and the pending case,” the judge presented
an unconstitutional risk of bias. Id. at 886–87.
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There is a world of difference between a judge who owes his
or her job to an individual campaign donor with a strong financial
interest in a single important case and one who works for a gov-
ernment with a negligible financial interest in any particular case.
After all, every judge works for a government of some kind and,
therefore, has some interest in the government’s finances. It may
be theoretically possible for such an interest to rise to the level of
an impermissible risk of bias. But the record here convinces us the
judge does not present that risk. See Alpha Epsilon Phi Tau Chap-
ter Hous. Ass’n v. City of Berkeley, 114 F.3d 840, 845 (9th Cir. 1997)
(“Whether an institutional motive is ‘so strong’ to violate due pro-
cess is obviously a matter of degree.”).
First, the judge and the City both believe that he can be fired
only for cause. Specifically, the City says that it can remove him
only for misconduct, intemperance, and the like under Georgia
Code § 36-32-2.1. That statute requires a two-thirds’ vote of the
municipal council to remove a judge for cause during his term. Ga.
Code § 36-32-2.1(b)(1). The judge agrees with the City.
The plaintiffs argue that the City and the judge are wrong.
They cite Georgia Code § 36-32-2(a), which says that “[a]ny indi-
vidual appointed as a judge under this Code section shall serve for
a minimum term of one year and until a successor is appointed or
if the judge is removed from office as provided in Code Section 36-
32-2.1.” Based on that Code section, they say that the City can fire
the judge for any reason because his contract term expired after
one year and he has not signed a new contract since joining the
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City many years ago. They also assert that the City conceded the
judge’s at-will status in an admission under Federal Rule of Civil
Procedure 36.
Whether the judge is an at-will or for-cause employee is less
than perfectly clear from this record, but what is clear is that both
the City and the judge believe he is the latter. The plaintiffs assert
that the judge’s contract term expired long ago, but cite no evi-
dence supporting their assertion that the judge’s contract term was
limited to one year. When the judge testified about his employ-
ment agreement, he did not mention that it specified any term
length at all; in fact, he believed that he was still serving his term
after more than twenty years. Moreover, contrary to the plaintiffs’
arguments, the City did not admit that it could fire the judge with-
out cause; instead, the City admitted that it is under no obligation
to re-appoint the judge once his term expires. But, like the judge,
the City’s position is that the judge’s term has not yet expired. So
the City’s admission does nothing to suggest that the judge serves
at the pleasure of the City.
Ultimately, we need not definitively determine the effect of
Georgia’s removal protection statute here. We are concerned only
with whether there is an unconstitutional lack of independence.
See Tumey, 273 U.S at 532. And we cannot say that the impartiality
of the judge fatally suffers because of his employment status. The
judge’s indirect stake in each case as it relates to his job is not con-
crete enough to disqualify him on constitutional grounds. Every
judge who is not appointed for life with a guaranteed salary faces
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21-10122 Opinion of the Court 15
some indirect pressure from the reappointing authority. See Van
Harken v. City of Chicago, 103 F.3d 1346, 1353 (7th Cir. 1997) (re-
jecting due process claim on this ground). But, because neither the
judge nor the City believes that he can be fired at will, there is no
substantial reason for him to fear losing his job based on his rulings.
In fact, it seems likely that the City’s position in this litigation will
prevent it from attempting to terminate him without cause in the
future. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (dis-
cussing doctrine of judicial estoppel).
Second, it is undisputed that the judge is largely ignorant of
the City’s budgetary needs. To be sure, he seems to be generally
aware of the City’s past financial struggles and the resulting neces-
sity of job cuts. And the City has publicly touted its reliance on mu-
nicipal court revenues. But he is unfamiliar with the particulars of
the City budget, plays no role in its preparation, and does not know
the amount of revenues generated by his court.
Third, it is also undisputed that the judge’s case-specific de-
cisions are neither formally nor informally under the control of the
City’s leadership. The judge does not formally report to anyone in
the City, and no one gives him direction on any aspect of his job.
The City’s leadership has not pressured the judge to generate rev-
enues—either in a general sense or in any particular case. And he
has not even spoken with a city council member or the mayor in
years.
We cannot say that a judge in this position—whose em-
ployer disclaims any ability to fire him except for cause, who has
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only a passing knowledge of the City’s budget, who has never been
pressured in any way, and who does not formally report to any-
one—suffers from the kind of interest at issue in Caperton.
The plaintiffs make a few other arguments in the alternative.
They are also unpersuasive.
First, even if the judge is not biased by his financial interest
in his job, the plaintiffs say he is potentially biased by the institu-
tional interests of the City. They assert that, because the municipal
court funds much of the City budget, the judge could be motivated
to serve the City by producing more revenue. But they have failed
to show that the judge has any executive responsibility over the
City’s finances that might compromise his impartiality. See Ward,
409 U.S. at 60; Dugan, 277 U.S. at 63–65. On the contrary, he has
never been vested with executive authority over financial matters
and has never been involved with the City’s budgetary decisions.
Because the judge has no executive authority, he is not biased by
the City’s institutional interests. See id.Second, the plaintiffs assert that the judge is disqualified by
systemic “selection bias” because the City might tend to hire judges
that convict more often. This argument is unpersuasive. There is
no sign that the City has expressed such a hiring preference or that
it has ever fired a judge because of a failure to convict. Nor have
the plaintiffs established that this particular judge has a suspiciously
high rate of conviction. So the plaintiffs’ argument is simply specu-
lation.
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Moreover, the only authority that the plaintiffs cite—Brown
v. Vance, 637 F.2d 272 (5th Cir. Jan. 1981)—does not support their
expansive “selection bias” theory. In that case, arresting officers
could choose which of multiple judges received a flat fee for hear-
ing a case. Id. at 275. The Fifth Circuit held that this arrangement
violated due process because judges might “compete for business
by currying favor with arresting officers or taking biased actions to
increase their caseload.” Id. at 282. In Doraville, by contrast, the
judge has no one to compete with because he is the only judge on
the municipal court. And his salary is independent of his caseload,
so he would have no financial incentive to convict even if there
were other judges. The plaintiffs’ reliance on Brown is therefore
inapt, and their “selection bias” argument is too remote and spec-
ulative to establish a due process violation.
B. Prosecutor
Nor is there a genuine dispute over the prosecutor’s risk of
unconstitutional bias. The constitutional standard of impartiality is
less stringent for prosecutors than it is for judges. Young v. U.S. ex
rel. Vuitton et Fils S.A., 481 U.S. 787, 810–11 (1987) (plurality opin-
ion). “Prosecutors need not be entirely ‘neutral and detached’” and
can be “zealous in their enforcement of the law.” Jerrico, 446 U.S.
at 248 (quoting Ward, 409 U.S. at 62). Yet “[a] scheme injecting a
personal interest, financial or otherwise, into the enforcement pro-
cess . . . raise[s] serious constitutional questions.” Id. at 249–50.
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The plaintiffs argue that Doraville’s prosecutor has a finan-
cial incentive to bring more cases because, like the judge, his in-
come supposedly depends on his ability to generate revenue for the
City. They specifically assert that he is compensated for each court
session he attends, that he can be dismissed at-will by the City, that
the mayor has advocated for tougher law enforcement, and that
the City has publicly discussed its reliance on municipal court rev-
enues.
It is true that the prosecutor receives $500 per court session.
But importantly, that compensation is not directly contingent on
the number of cases he prosecutes. Instead, he bills the City for two
regularly scheduled court sessions every week. The prosecutor has
little control over the frequency of those sessions: the municipal
court clerk oversees scheduling, and law enforcement officers
mostly file charges themselves. In short, the prosecutor’s pay does
not depend on the number of cases he handles. This compensation
structure does not raise significant due process concerns.
Unlike the judge, the prosecutor acknowledges that he can
be fired at-will. But that fact alone is not enough to create a due
process violation. Cf. Van Harken, 103 F.3d at 1353. Even assuming
the prosecutor has some knowledge of the City’s budget, the City’s
leadership has never pressured him to generate revenue. The
mayor did say in a meeting that someone should “crack down in
the court system instead of the little slap on the hand.” But the
prosecutor never heard that statement, so it could not have led him
to fear for his job. So, given the relaxed standard of impartiality for
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21-10122 Opinion of the Court 19
prosecutors, the plaintiffs have presented inadequate evidence that
the prosecutor had a personal financial interest.
The plaintiffs also argue that the prosecutor might be biased
by the City’s institutional interests because he sometimes serves as
the city attorney. Like judges, prosecutors can be impermissibly bi-
ased “by the prospect of institutional gain as a result of zealous en-
forcement efforts.” Jerrico, 446 U.S. at 250. But as we have ex-
plained, the Constitution’s impartiality requirements are no more
stringent for prosecutors than they are for judges. Id. So we infer
that, as with judges, a prosecutor cannot be biased by an institu-
tional interest unless he has executive responsibility over the insti-
tution’s finances. See Dugan, 277 U.S. at 63–65.
The plaintiffs have failed to show that the prosecutor has
any such responsibility. It is true that he sometimes shares the role
of city attorney with his brother, and the city attorney has attended
city council meetings where budget documents were discussed.
But his participation in those meetings is apparently limited to non-
budgetary policy matters. Indeed, the prosecutor testified that he
lacks “any executive authority to act on the city’s behalf with re-
gard to its finances, its budgeting for, receipt of, or spending of city
of municipal court revenue.” The plaintiffs have thus failed to raise
a genuine issue of material fact related to the prosecutor’s institu-
tional bias as well.
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C. Police
The plaintiffs also allege Doraville’s police have a financial
interest in issuing tickets. Specifically, the plaintiffs assert that, be-
cause over half of the City’s general fund is committed to the police
department, and because the City relies on municipal court reve-
nue, officers have an improper interest in issuing citations to sup-
port the department’s funding. Police officers enforce Doraville
law, file charges, and try their own cases. We thus apply the same
standard of impartiality to them as we do to prosecutors. See
Young, 481 U.S. at 810–11 (plurality opinion); Jerrico, 446 U.S. at250–51.
We cannot say that the City’s budgetary reliance on fines
and fees means the police have an improper interest in over-enforc-
ing the law. The Supreme Court addressed a similar argument in
Marshall v. Jerrico, 446 U.S. at 250–51. There, it concluded that an
enforcement official had no personal financial interest in over-en-
forcing a law. The Court explained that the officer received a fixed
salary and was not subject to other personal financial pressures. Id.
at 250. Similarly, the police officers’ compensation is not tied to the
citations they issue, and the plaintiffs have not argued that officers
are at risk of termination for failure to issue citations. They there-
fore lack a personal financial interest in vigorous enforcement.
As for an institutional interest, the Court in Jerrico deter-
mined that there was only a remote possibility that the official
would be swayed by the financial needs of his department. Id. at
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21-10122 Opinion of the Court 21
250. It reasoned that his office received funding based on the ex-
penses it incurred, not on the amounts of penalties it collected. Id.
at 251. It also noted that funds from penalties were shared among
various other offices, id., and that penalties represented less than
one percent of his agency’s budget. Id. at 250. So too here, the po-
lice department’s funding is based on its projected expenses, not on
the amount it collects from penalties. And penalty funds are spread
out over eighteen other departments, with the city council making
final budget decisions. As in Jerrico, these facts cut against finding
that officers have an institutional interest that would violate the
Due Process Clause. See id. at 251.
That said, we recognize that the budgetary impact of the
fines and fees collected in Doraville is greater than that of the funds
in Jerrico. Around half of Doraville’s general fund goes to the police
department, and roughly 11 to 25 percent of that fund came from
fines and fees over the last five recorded years. Assuming that no
funds are earmarked for the police department, then 11 to 25 per-
cent of the funds going to that department consist of fines and fees.
That percentage is significantly higher than the “less than 1%” fig-
ure in Jerrico. See 446 U.S. at 245.
Even so, we are skeptical that this percentage figure alone
establishes bias. The City could easily manipulate this figure by
raising overall revenue or by earmarking funds to the police—all
the while holding fines and fees constant. And 11 to 25 percent is
still a far cry from the kind of bounty system that raises core due
process concerns. So, even though the percentage is greater here
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22 Opinion of the Court 21-10122
than it was in Jerrico, it is too low for us to conclude that the police
department was “financially dependent on the maintenance of a
high level of penalties.” Id. at 251. We therefore conclude that sum-
mary judgment was correctly granted on this issue.
D. Code Enforcement
Finally, we address the due process implication of the City’s
code enforcement. The City hires an outside firm to enforce the
property code. The plaintiffs argue that the code enforcement
agents could be biased because they have “unquestioned discretion
to issue citations” and have “so much financially riding on them.”
It is undisputed that the firm is paid hourly, that its contract is pe-
riodically evaluated and renewed, that the city council can direct it
to police certain neighborhoods, and that property code citations
have risen sharply in the past five years.
Because the code enforcement agents are paid hourly, they
have no direct financial interest in issuing citations. See Dugan, 277
U.S. at 65 (holding that a mayor whose salary derived from a gen-
eral fund to which criminal fines accumulated was not interested
in the fund). True, the City could decline to renew the company’s
contract for failing to bring in enough revenue. But, as we dis-
cussed in relation to the prosecutor, that possibility alone is too re-
mote to create an unconstitutional risk of bias. In fact, it is even
more remote here because the code enforcement agents contribute
less than 10 percent of the total revenue from fines and forfeitures.
Even more obviously, the code enforcement agents lack an
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21-10122 Opinion of the Court 23
institutional financial interest because they represent an outside
contractor without executive responsibility in the City. See id. at
63–65. So no reasonable jury could find that the code enforcement
officers had an unconstitutional risk of bias.
IV. Conclusion
The plaintiffs have not raised a genuine issue of material fact
concerning the bias of Doraville’s judge, its prosecutor, its police,
or its code enforcement agents. The district court therefore cor-
rectly granted summary judgment, and we AFFIRM.
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21-10122 Newsom, J., Concurring 1
NEWSOM, Circuit Judge, concurring in the judgment:
I concur in the Court’s judgment but write separately to em-
phasize two points. First, while I agree that the adjudications ren-
dered by the City of Doraville’s municipal judge don’t violate the
Due Process Clause, that conclusion, for me, is bound up in the
specific—and somewhat unique—circumstances of this case. Sec-
ond, in a different case, with different facts, I might well reach a
different decision: If a municipality heavily dependent on fines and
fees employed a judge who not only was reliant on the city for his
salary but also was terminable at will, the judge’s precarious posi-
tion probably would, in my mind, give rise to an unconstitutional
“‘possible temptation’” to bias. Ward v. Vill. of Monroeville, 409
U.S. 57, 60 (1972) (quoting Tumey v. Ohio, 273 U.S. 510, 532
(1927)).
The oft-repeated standard for whether a situation presents
an unconstitutional risk of judicial bias is whether it “is one ‘which
would offer a possible temptation to the average man as a judge to
forget the burden of proof required to convict the defendant, or
which might lead him not to hold the balance nice, clear, and true
between the state and the accused.’” Id. (quoting Tumey, 273 U.S.
at 532). As I understand the law, there are two ways in which such
a temptation can arise. First, a judge might be institutionally bi-
ased—i.e., she might be predisposed to convict in order to advance
the interests of the institution she serves. See id. (noting that a
“mayor’s executive responsibilities for village finances may make
him partisan to maintain the high level of contribution from the
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2 Newsom, J., Concurring 20-14846
mayor’s court”); Tumey, 273 U.S. at 535 (concluding that a village’s
mayor-judge was unconstitutionally biased because of his “official
motive to convict . . . to help the financial needs of the village”).
Second, a judge might be personally biased as a result of his own
financial interests. See Tumey, 273 U.S. at 535 (concluding that a
judge who was paid based on his number of convictions had an
unconstitutional “direct pecuniary interest in the outcome” of his
cases).
I agree with the Court that Doraville’s municipal judge
doesn’t suffer from an impermissible institutional bias. It’s undis-
puted that the judge has no executive responsibility for Doraville’s
finances that would give rise to such a bias. See Ward, 409 U.S. at
60. And while Doraville itself has a financial interest in convictions,
and the judge is employed by the City, that relationship alone—as
the Court rightly points out, see Maj. Op. at 12–13—doesn’t create
a sufficient temptation for the judge to convict in order to advance
his employer’s interests, see Dugan v. Ohio, 277 U.S. 61, 63–65
(1928) (holding that it was constitutionally permissible for a mayor
to serve as the municipal-court judge when he exercised no execu-
tive functions and received a fixed salary). 1
1 I don’t think that our decision in Harper v. Professional Probation Services,
Inc., 976 F.3d 1236 (11th Cir. 2020), requires a different result. In Harper, we
held (1) that a private company—Professional Probation Services—performed
a judicial function when it imposed binding sentencing enhancements and (2)
that it had an unconstitutional financial interest in the outcomes of its sentenc-
ing decisions. Id. at 1244. Here, it’s clear that the City of Doraville has a fi-
nancial interest in the outcomes of the cases heard by its municipal judge. But
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21-10122 Newsom, J., Concurring 3
With respect to the judge’s personal financial interest—
which includes both his income and his presumable desire to keep
his job—I see this as a close case, the resolution of which turns on
the specific circumstances surrounding Doraville’s judge. While
the parties agree that the judge’s salary doesn’t vary based on the
number of convictions he delivers, they dispute whether the City
can legally terminate the judge at will—which would allow it to
fire him if he doesn’t deliver enough convictions—or whether he
enjoys for-cause removal protection. The truth of the situation is
difficult to discern. On the one hand, Doraville did, in fact, lay off
its other two judges about 10 years ago when it faced “financial
concerns” and “wanted to cut costs,” Doc. 91-7 at 12, and its city
charter expressly states that the judge holds office “at the pleasure
of” the City Council, Doc. 106 at 13. On the other hand, Georgia
I don’t think that the City itself, as a financially interested corporate entity,
should be considered the relevant adjudicator of the cases that its municipal
judge decides. While Harper didn’t reach the question whether or when a
corporate entity—as opposed to an individual employee—should be consid-
ered the adjudicator for purposes of the due-process bias analysis, I think it’s
relevant here (1) that Doraville has no policy or custom of influencing the out-
comes of individual adjudications, see Maj. Op. at 10–11; Harper, 976 F.3d at
1244 n.10, and (2) as I’ll explain, that the judge most likely isn’t—and going
forward, can’t be considered—an at-will employee, and therefore enjoys some
independence from the City’s leadership, cf. Seila Law LLC v. Consumer Fin.
Prot. Bureau, 140 S. Ct. 2183, 2198–99 (2020) (noting for-cause removal pro-
tection as a hallmark of independence). Given these facts, I think it’s fair to
identify the individual judge, rather than the City, as the one performing the
adjudications and to conduct the due-process bias analysis by reference to the
judge as an individual rather than the City.
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4 Newsom, J., Concurring 20-14846
enacted a statute in 2016 that provides municipal judges with cer-
tain removal protections: Under it, judges “shall serve for a mini-
mum term of one year and until a successor is appointed or if the
judge is removed from office” by a two-thirds vote of the municipal
council—and lists as grounds for removal only “[w]illful miscon-
duct,” “[h]abitual intemperance,” serious disability, and the like.
Ga. Code §§ 36-32-2(a), 36-32-2.1(b)(1) (2016). Even so, the City
admits that once the judge’s term is over, it has no obligation to
reappoint him. Doc. 91-15 at 5.
Because Doraville’s judge was hired on a contract more than
20 years ago with no specified “term” and the City hasn’t taken any
action to modify or renew that contract, his current employment
status—as the district court found—is unclear. See Doc. 106 at 13
n.8. Georgia’s 2016 amendments to its municipal-judge statutes re-
quire that judges’ terms be “memorialized in a written agreement,”
Ga. Code § 36-32-2(a), and the difficulty here seems to result from
the fact that Doraville hasn’t updated its judge’s contract in light of
the new law. Is Doraville’s judge still serving his original term, as
he seems to believe? See Doc. 91-7 at 13. Or has his original term
ended such that he has continued working on an at-will basis, as
the plaintiffs argue? See Appellant’s Initial Br. at 6 n.1. Or is he
effectively serving consecutive one-year terms that re-start on the
anniversary of his first appointment, as the Georgia Municipal As-
sociation suggests? See Ga. Mun. Ass’n Amicus Br. at 8–9. I don’t
think that we can confidently answer these questions because we
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21-10122 Newsom, J., Concurring 5
don’t know how Georgia law treats pre-2016 municipal-judge con-
tracts that fail to specify the length of the judge’s term.
Despite this uncertainty, I agree with the Court that, in the
circumstances of this case, Doraville’s judge doesn’t have an un-
constitutional temptation to bias as a result of his personal financial
interests. That, for me, is so for two key reasons. First, both the
City and the judge believe that the removal protections of Ga.
Code § 36-32-2.1 apply and, accordingly, that the City can’t fire the
judge at will. See Appellee’s Br. at 16–17, 45; Doc. 91-7 at 12–13.
That shared belief, though debatable, is reasonable based on § 36-
32-2.1’s language, the absence of any statutory-maximum term un-
der § 36-32-2(a), and the fact that the judge’s original contract didn’t
limit him to any specific tenure. See Maj. Op. at 14–15.
Second, now that the City has represented to this Court that
it can’t fire the judge at will, it will likely be barred by judicial es-
toppel from changing its position and terminating him without
good cause in the future. See Maj. Op. at 15. Judicial estoppel “pro-
tect[s] the integrity of the judicial process by prohibiting parties
from deliberately changing positions according to the exigencies of
the moment,” New Hampshire v. Maine, 532 U.S. 742, 749 (2001)
(quotations and citations omitted), and it “prevent[s] a party from
asserting a claim in a legal proceeding that is inconsistent with a
claim taken by the party in a previous pr[o]ce[e]ding,” Robinson v.
Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (quoting 18
Moore’s Federal Practice § 134.30 (3d ed. 2008)). We employ a
two-part test to determine whether judicial estoppel applies: First,
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6 Newsom, J., Concurring 20-14846
did the party against whom estoppel is sought take an inconsistent
position in an earlier proceeding—usually, but not always, under
oath? See Slater v. U.S. Steel Corp., 871 F.3d 1174, 1181 (11th Cir.
2017); Smith v. Haynes & Haynes P.C., 940 F.3d 635, 643 n.4 (11th
Cir. 2019). And second, were the inconsistent positions “calculated
to make a mockery of the judicial system,” rather than “the result
of inadvertence or mistake”? Slater, 871 F.3d at 1181 (quotations
omitted). Given “all the facts and circumstances of th[is] case”—in
particular, the City’s heavy reliance on the judge’s removal protec-
tions under Ga. Code § 36-32-2.1—if the City hereafter tried to fire
its judge without cause and the judge sued, judicial estoppel would
likely bar the City from repudiating its earlier position that the law
forbids such a termination. Id. at 1186.
All things considered, then, the “average man” in the judge’s
position wouldn’t have a “possible temptation” sufficient to violate
the Due Process Clause because (1) both the City and the judge
reasonably believe that he can’t be fired based on his decisions and
(2) judicial estoppel would make it difficult—if not impossible—for
the City to do so in the future. Tumey, 273 U.S. at 532. 2 Because
2 Nor does Doraville’s judge have an unconstitutional personal financial inter-
est based on any ability that the City might have to reduce his salary, as the
plaintiffs seem to suggest. See Appellant’s Initial Br. at 26. In addition to the
fact that the City hasn’t changed the judge’s salary in more than 20 years, see
Doc. 106 at 12, any attempt to do so—at least during his “term”—would likely
violate Georgia’s municipal-judge statute, which states that municipal judges
“shall receive such compensation as shall be fixed by the governing authority
of the municipal corporation,” Ga. Code § 36-32-2(a) (emphasis added).
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21-10122 Newsom, J., Concurring 7
“the probability of actual bias on the part of the judge” is not “too
high to be constitutionally tolerable” in the unique circumstances
of this case, the Court correctly denies the plaintiffs relief. Caper-
ton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009) (quotation
omitted).
To be clear, though, in a different case, with different facts,
a different result might well obtain. If, for instance, a municipal-
court judge were not only dependent for his salary on a city that
raised substantial revenue through court-imposed fines and fees
but was also terminable at will, rather than only for cause—partic-
ularly where, as here, similarly situated colleagues had been fired
and the judge’s own healthcare benefits had been stripped for fi-
nancial reasons in the past—there could well be a Due Process
Clause violation. Even if a city doesn’t explicitly pressure or direct
a judge to convict, the reasonable, “average” judge in such a situa-
tion might well know that the convictions she renders meaning-
fully contribute to the city’s bottom line and, more importantly,
that the city could remove her or reduce her salary if she didn’t
deliver enough convictions (and thus revenue). The possibility
that the city could replace the judge or cut her pay because of her
low conviction rate could, in my view, create a powerful tempta-
tion for the average judge to stay in the city council’s good graces
by convicting more often than she otherwise would. In the doctri-
nal lingo, that personal financial interest could “offer a possible
temptation to the average man as a judge” to be biased and thus
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8 Newsom, J., Concurring 20-14846
violate the Due Process Clause. Tumey, 273 U.S. at 532. 3 But,
again, because in the unique circumstances of this case Doraville’s
judge isn’t confronted with the same temptation, I concur in the
Court’s judgment.
3 The Court notes that every judge without life tenure and a guaranteed salary
necessarily faces some indirect pressure from the reappointing authority. See
Maj. Op. at 14. True, but the question under existing doctrine is whether the
possibility of bias—which might result either from actual external pressure or
the judge’s own reasonable fear of employment repercussions—rises to a level
sufficient to call the judge’s impartiality into question. See Ward, 409 U.S. at
60; see also Caperton, 556 U.S. at 877. My tentative view, anyway, is that if a
city not only derives a substantial portion of its revenue from municipal-court
fines and fees but also reserves the right to fire its judge or cut his pay at will,
then the possibility of bias is probably “too high to be constitutionally tolera-
ble.” Caperton, 556 U.S. at 877 (quotation omitted). While I (of course) don’t
think that life tenure is necessary to reduce the possibility of bias to “constitu-
tionally tolerable” levels, I do think that if a city heavily relies on court-im-
posed fines-and-fees revenue, then its judges must have some structural guar-
antees of independence, like the for-cause removal protections that Georgia
adopted in 2016. See Ga. Code § 36-32-2.1.