U.S. District Judge T. John Ward on Aug. 29 certified a modified class of plaintiffs who are suing several East Texas public officials, including the Shelby County District Attorney Lynda K. Russell and her former investigator Danny Green, alleging civil rights violations. While the order allows the class to pursue injunctive and declaratory relief against the defendants in Morrow, et al. v. Washington, et al., it does not certify any of those claims for monetary relief. In arriving at his decision, Ward cited the June 20 U.S. Supreme Court decision in Wal-Mart Stores v. Dukes, which rejected a monetary recovery by a diverse class of plaintiffs. Yet Ward allowed the plaintiffs to pursue individual claims against the defendants for monetary damages. Russell and Green are two of the five defendants in Morrow, which was filed in 2008 and has received national publicity. The plaintiffs allege the defendants confiscated property and money from numerous nonwhite motorists as they traveled through the small East Texas city of Tenaha. In their Feb. 17, 2010, third amended complaint, the 10 Morrow plaintiffs allege the defendants' actions violate at least the Fourth Amendment's prohibition against unreasonable searches and seizures and the 14th Amendment's equal protection clause, made actionable by 42 U.S.C. §1983. City of Tenaha Deputy City Marshal Barry Washington, city of Tenaha Mayor George Bowers and Shelby County Precinct 4 Constable Randy Whatley also are named as defendants in Morrow. All of the defendants deny the allegations in answers they have filed responding to the plaintiffs' complaint. As part of his class certification ruling, Ward drew an “adverse inference” in his determination to certify a modified class, based on Russell and Green’s assertion of the Fifth Amendment rights and refusal to answer questions during their depositions. Last year, Ward granted a 90-day discovery stay as to Russell and Green “due to indications that both were subject to pending criminal investigations related to the same facts and circumstances giving rise to this lawsuit” Ward noted in his opinion. Neither has been charged criminally. “The implication is that Russell and Green had information relevant to the issues of class certification but that they withheld the information because they feared it would be incriminating,” Ward wrote in the class certification ruling. John Heath Sr., a Nacogdoches criminal-defense solo who represents Green, did not return a call for comment, nor did Russell. Tim Garrigan, a partner in Nacogdoches’ Stuckey Garrigan & Castetter who is a plaintiffs’ class counsel in the civil rights case, is pleased with the decision, even though it prevents the class from pursuing monetary damages. “From society’s perspective, this kind of case still does a great deal of good, because the court can order the end of an unconstitutional interdiction program,” Garrigan says. Tom Henson, a partner in Tyler’s Ramey & Flock who represents Russell in the civil-rights case, says he is deciding what action to take next in light of Ward's decision. "We are disappointed that he did not deny outright the motion for class certification. But we’re studying the content of the order — it’s rather lengthy — and trying to ascertain the steps to take,” Henson says. Chad Rook, a partner in Tyler's Flowers Davis who represents Green, Washington, Bowers and Whatley in the civil rights case, did not immediately return a call seeking comment.
--- John Council