Kathleen Velek v. State of AR

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1799
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Kathleen M. Velek; Timothy P. *
Cotton; Carolyn J. McEwen, and *
parties similarly situated, *
*
Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
State of Arkansas; City of Little Rock, *
Arkansas; Victor A. Fleming, Little * [UNPUBLISHED]
Rock Municipal Court Judge; City of *
Stuttgart, Arkansas; J.W. Green, *
Stuttgart Municipal Court Judge, *
*
Appellees. *
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Submitted: October 4, 2001
Filed: October 5, 2001
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Before WOLLMAN, Chief Judge, BOWMAN, and LOKEN, Circuit Judges.
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PER CURIAM.
Kathleen Velek, Timothy Cotton, and Carolyn McEwen (plaintiffs) were charged
with Class A misdemeanors in Arkansas municipal courts where, in accordance with
Arkansas law, they were subject to trial before a municipal judge, and if convicted,
could receive a de novo trial by jury upon appeal. Plaintiffs brought this 42 U.S.C. §
1983 action against the State of Arkansas, the cities of Little Rock and Stuttgart, and
two municipal court judges, claiming that Arkansas’s two-tier system violates their
rights to a speedy jury trial and to freedom from double jeopardy. The district court1
initially found abstention was required under Younger v. Harris, 401 U.S. 37 (1971),
because of the pending state court prosecutions, but upon further review found that
plaintiffs failed to state a claim. Upon careful de novo review of the record, we affirm.
The Supreme Court previously upheld a similar two-tier system in Ludwig v.
Massachusetts, 427 U.S. 618, 624-32 (1976) (rejecting arguments based upon right to
jury trial, additional financial costs imposed by system, potential for harsher penalty at
second trial, psychological and physical hardships of undergoing two trials, and Double
Jeopardy Clause). Plaintiffs’ attempts to distinguish Ludwig fail because plaintiffs lack
standing to challenge either the system’s disproportionate impact on the poor and
minorities, or the state’s ability under some circumstances to appeal a first-tier not-
guilty verdict. See Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (plaintiffs
must allege they have sustained direct injury as result of challenged conduct).
Accordingly, we affirm. We deny as moot plaintiffs’ motions to strike and to
substitute parties.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The HONORABLE STEPHEN M. REASONER, United States District Judge
for the Eastern District of Arkansas.
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