Key Points

  • The Eleventh Circuit held that Schultz v. Alabama's jurisdictional limitation does not apply to certified class actions at the pre-record stage.
  • Class certification creates a legal status separate from the named plaintiff, so a defendant cannot moot as-applied challenges simply because the named plaintiff was not injured under the revised policy.
  • A district court may not rely solely on a defendant's bare assertion that challenged practices have ended without factual development on implementation.
  • The voluntary-cessation doctrine saves claims from mootness where the policy change was issued the same day as a dismissal motion, came from a single official rather than legislative action, and included no acknowledgment of prior wrongdoing.
  • Facial challenges to the 2017 Standing Order fail because its procedures satisfy Salerno's standard for authorizing pretrial detention in at least some circumstances.

The U.S. Court of Appeals for the Eleventh Circuit on Monday revived a certified class action challenging Randolph County, Alabama's bail practices, holding that the county could not escape the lawsuit by adopting a new bail policy after the suit was filed. The panel reversed the district court's dismissal of challenges to the county's pre-2017 bail system and as-applied challenges to the current system, while affirming dismissal of facial challenges to the operative policy.

"Our caselaw is clear that a defendant cannot circumvent a lawsuit simply by terminating the allegedly wrongful conduct—which is exactly what Randolph County attempted to do in this case," Judge Kidd wrote for the panel, which also included Judges Newsom and Wilson.

The decision cabins the Eleventh Circuit's 2022 ruling in Schultz v. Alabama, which had been read to impose broad jurisdictional limits on plaintiffs challenging bail systems after a mid-litigation policy change. The Edwards panel concluded that Schultz does not apply where a class has been certified and the record on the new policy's implementation remains undeveloped.

Kandace Edwards was arrested in Randolph County in May 2017 for allegedly forging a $75 check. Under the county's bail schedule, she could secure release only by posting a $7,500 bond—an amount she could not afford. The day after her arrest, Edwards filed a federal class action challenging the county's wealth-based bail system under the Fourteenth Amendment. The district court granted a temporary restraining order, and Edwards was released.

In September 2017, while preliminary injunction proceedings were ongoing, Randolph County's sole district judge issued a new standing order adopting lower bail amounts and standardized procedures. The order was issued the same day the defendants moved to dismiss as moot. The district court initially denied that motion under the voluntary-cessation doctrine, finding the defendants were "reasonably likely" to "revert to their earlier challenged conduct." The court certified a class of all arrestees jailed in Randolph County who cannot pay their required bail.

After the Supreme Court denied certiorari in Schultz, the district court granted the defendants' renewed dismissal motion, concluding Schultz required it to jurisdictionally limit the plaintiffs' challenges.

The Eleventh Circuit reversed, identifying two key distinctions from Schultz. First, Edwards involves a certified class. The district court had reasoned that because Edwards "did not suffer an injury under the 2017 Standing Order," the class members "step into her shoes" and could bring only claims she could maintain. The appeals court rejected this as improperly merging the "distinct doctrines of standing and mootness."

"When a class is certified, it 'acquire[s] a legal status separate from the interest asserted by' the named plaintiff," Judge Kidd wrote, quoting the Supreme Court's 1975 decision in Sosna v. Iowa. "Accordingly, the fact that Edwards herself was not detained under the 2017 Standing Order does not automatically doom the as-applied challenges of her fellow class members."

Second, the panel distinguished Schultz based on procedural posture. Schultz arose after a two-day evidentiary hearing on implementation of a new bail policy. Edwards was dismissed on a Rule 12(b)(1) motion without comparable factual development.

"The record in this case was not fully developed as to how the 2017 Standing Order has been implemented in practice," Judge Kidd wrote. A district court "may not rely solely on Defendants' bare assertion that the complained-of bail practices have come to an end."

Turning to the voluntary-cessation doctrine, the panel found the defendants had not met their "heavy burden" of showing the challenged conduct could not reasonably recur. The 2017 Standing Order was issued the same day as the dismissal motion, was unilaterally issued by a single judge rather than through legislative action, and the defendants provided no reason for it other than that it "obviate[d] the need for a preliminary injunction."

"As such, we conclude that, at this stage, it is not 'absolutely clear that [Defendants'] allegedly wrongful behavior could not reasonably be expected to recur,'" Judge Kidd wrote. The class may proceed seeking "an injunction preventing Defendants from reverting to their previous bail policy."

The panel affirmed dismissal of facial challenges to the 2017 Standing Order on the merits, finding its procedures—including a 72-hour hearing requirement and consideration of ability to pay—satisfy the standard for authorizing pretrial detention in at least some circumstances. On the Sixth Amendment right-to-counsel claim, the panel declined to decide whether a state initial appearance is a "critical stage" requiring counsel, holding the plaintiffs could not mount a facial challenge because the order "does not explicitly forbid the presence of counsel at the initial appearance."

The case returns to the Middle District of Alabama. The plaintiffs may pursue challenges to the pre-2017 bail practices and as-applied challenges to the current system, but facial attacks on the 2017 Standing Order are foreclosed.