Attorney argues ABK-court relationship in Vanderburgh County violates due process

EVANSVILLE – Plaintiffs in a lawsuit against ABK Tracking asked a federal court judge on Thursday to stop the company from collecting fees in Vanderburgh County until the lawsuit gets a ruling.

Defendants, meanwhile, claimed complaints leveled against the electronic home detention and drug testing company should be directed elsewhere.

Phil Telfeyan, an attorney with the criminal justice nonprofit Equal Justice Under the Law, argued before U.S. District Court Magistrate Matthew Brookman on Thursday that since people assigned to ABK aren’t made aware of how much the fees cost until after they’re sent to the company, that violates their right to due process. He compared it to an "arbitrary bail."

Telfeyan also pointed out that many of ABK’s clients haven’t even been convicted of anything yet, and are sent to ABK as a pre-trial diversion.

One of the plaintiffs in the case, Evansville man William Huggins, has said he paid almost $600 per month in ABK fees – about $75 less than his rent.

More:Private company ABK profits from no-bid deal with Vanderburgh County judge

ABK’s attorney, Alex Beeman, dismissed the notion that the company should be held responsible for participants not knowing the extent of the fees until the court sends them there.

“The court knows the costs,” he said. “If they don’t share that, that’s not ABK’s problem.”

Both ABK and the Vanderburgh County Probation Department make money off each drug or alcohol test they administer to clients. Telfeyan claimed that gives them a conflict of interest and little reason to stop the tests or lessen the amount.

According to testimony, the Vanderburgh County Probation Department collects about $100,000 a year through its share of the fees ABK charges. And ABK’s business model is based off the money it collects from clients.

ABK has no written contract with Vanderburgh County probation. Instead, ABK receives the business through a handshake deal with Circuit Court Judge David Kiely, who heads that department. Kiely and ABK owner Danny Koester are friends.

The hearing stemmed from a federal class-action lawsuit Equal Justice Under the Law filed against ABK last year. It accuses ABK Tracking, Kiely, and Vanderburgh County and Kiely of conspiring to “extort” money from poor residents. ABK was also the subject of a Courier & Press investigation, articles from which are cited in the lawsuit.

Kiely’s attorney, Deputy Indiana Attorney General Caryn Nieman-Szyper, asked for the case to be dismissed, while Vanderburgh County argued in a motion filed in November that Vanderburgh County shouldn’t be named in the suit since “judges are state officials, not county officials.”

On Thursday, Telfeyan countered that the plaintiffs aren’t suing Kiely in his role as a judge. They’re suing him in his role as the head of the probation department.

Brookman adjourned without making a ruling.

How ABK operates – and how it started

Koester defended his business during sworn testimony.

He claimed his company, when asked by the court, has repeatedly lowered rates for defendants who can’t afford the full fee. They’ve even tested some for free, he said.

Koester also denied claims from the plaintiffs named in the suit that ABK employees told them that if they can’t pay their fees, they’ll go to jail. But he admitted the company files a petition to revoke a client’s probation if they can’t pay or miss a test, which can sometimes cause a judge to order a client back to jail.

Some ABK clients also can access a fund through the Vanderburgh County Sheriff’s Office that can lower their drug-testing fees by a few dollars, Koester said. But only about 5% to 7% of people sent to ABK qualify for that.

More:Vanderburgh County corrections set to drop ABK as electronic home detention provider

About 90% of people referred to them are on “private pay” – meaning they shell out the full amount for a drug or alcohol test. Koester said businesses have to charge more to those on private pay to make up for potential losses if someone misses a test.

The costs vary, but they typically come out to about $32 per drug test and $7 per alcohol test, Koester said.

The probation department gets a cut of each – $5 from each drug test and $1 from each alcohol test. That money goes into a fund that, along with other court fees, pays the salaries for five of Vanderburgh's 13 adult probation officers and an intern.

Koester said probation compiles a list of who is expected to come to ABK for tests each day, and how much their tests will cost. ABK marks them off the list and sends it back to probation, who uses the information to compile a bill each month. When ABK gets the bill, they send probation their cut of the tests.

He said ABK started providing tracking services in 2007 and expanded into drug and alcohol testing around 2014.

According to his testimony, he studied several similar companies across the country and took what he found to court officials in ’07. His audience included several Vanderburgh County judges, including Kiely, who was a magistrate at the time.

He laid out the idea of doing private pay – where clients pay ABK directly and the courts get a share – or government pay, where the courts collect the money and pay ABK through a contract.

More:Despite board decision, ABK Tracking will still get business from Vanderburgh County

“I was open-minded to do private pay. I was open-minded to do government pay,” he said.

The officials ultimately went with the former.

'If there's a violation, it's not from us'

This case, Telfeyan argued, isn't about putting Koester or even ABK on trial. It's about the private-pay system, and how people are issued fees without getting any chance to negotiate with the court about what they can and can’t afford. If they get behind on payments, ABK issues a petition to revoke, which can send them to jail – basically punishing them for being poor.

Beeman countered that if a client realizes they can’t pay the fees, they can always go back to state court and file a motion to have them lowered. He pointed out that no plaintiff in the lawsuit ever did that.

“If there’s a violation (on due process),” he said, “it’s not from us.”

Telfeyan argued against that “You should have asked” is not a process, he said.

Brookman didn’t say when he might make his ruling.

This article originally appeared on Evansville Courier & Press: Lawsuit against ABK, Vanderburgh County, Kiely continues