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Attorneys May be Sued as State Actors When Colluding with Judge

by Matthew T. Clarke

On June 17, 2005, the United States Court of Appeals for the Fifth Circuit held that private attorneys could be sued as state actors in a civil rights action in federal district court, provided they allegedly operated in collusion with a state official to deprive the plaintiff of a constitutional right.

Michael Ballard, a Louisiana citizen, filed a civil rights lawsuit in federal district court under 42 U.S.C. § 1983 alleging a Louisiana state district judge and two lawyers colluded to operate a debtors' prison and unconstitutionally imprisoned him for failing to pay a civil judgment.

Ballard lost a lawsuit in Louisiana state district judge Marilyn Lambert's court, thus becoming a judgment debtor for about $10,000 including attorneys' fees, costs and interest. Ballard refused to pay and the plaintiff's attorneys, Robert Ryland Percy, III and Stephanie Wall, of the law firm Percy, Pujol and Wall, filed a motion for a Judgment Debtor Rule.

A hearing was set and a summons issued for Ballard, but he forgot about it and failed to appear. When he remembered the hearing an hour later, he called Percy and asked his advice on what to do. Percy informed him that Judge Lambert had issued a bench warrant with a $10,000 bond and told him to pay the fine or he would be jailed. Ballard drove to the courthouse and met with Judge Lambert about two hours after he should have appeared at the hearing. Judge Lambert called the law firm, then told Ballard that Percy did "not want to release the bond"; therefore, Ballard would have to pay the $10,000 to stay out of jail. Ballard couldn't raise the money so Judge Lambert ordered police in the courthouse to arrest him.

Ballard was kept in the Ascension Parish Jail overnight and then transferred to the parish prison. While in jail he called his wife, who in turn called Percy. Percy allegedly told Ballard's wife that she would have to raise $10,000 or Ballard would remain in jail until the next court date. The wife specifically asked Percy, "Can you put someone in jail for not paying a debt?" He replied, "yes ma'am, that's the law."

Ballard's wife also called Judge Lambert's office and was told by the judge's secretary that there was nothing she could do to get her husband out of jail except pay $10,000 in cash to Percy. The next day Ballard's wife borrowed $10,000 from her son. She then asked Percy's secretary if her husband would be released from jail if she paid Percy the money. In Percy's presence the secretary told her, "just give me the money, I can call the jail and he will be released." Ballard's wife gave the secretary the money. The secretary called the jail and Ballard was released. A notation was made in the state district court record, "Per Melanie @ Ryland Percy Office don't issue B/W 4/25/02 1:25 P.M."

Ballard didn't appeal the judgment, but filed a civil rights suit alleging Judge Lambert, the lawyers and the law firm violated his constitutional rights by operating a debtor's prison, something which has been forbidden in Louisiana since 1840. Ballard claimed that the proper procedure for failure to pay a debt under Louisiana law was to order a show cause hearing for contempt.

Judge Lambert moved to dismiss the lawsuit, asserting a defense of absolute judicial immunity, stating "[s]he was merely setting a bond for a bench warrant that involved a hearing of which she was the presiding judge." The attorneys claimed they were not "state actors" for purposes of the § 1983 suit.

The appellate court held that Judge Lambert was properly granted judicial immunity and thus upheld the District Court's grant of her motion to dismiss. However, the Fifth Circuit found the attorneys could be held liable as state actors, noting that private parties can be deemed state actors if they were "joint participants" with a government official in the unlawful action. The case was affirmed in part, reversed in part and remanded. See: Ballard v. Wall, 413 F.3d 510 (5th Cir. 2005).

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Related legal case

Ballard v. Wall