*1 That ally sound. method should be by this court unless its effect
proved segregation substantially or is ad-
racial quality
verse to the of education available some of the district’s children. Under holding, the defendants here must sub- plan assignment
mit some of student upon ability grouping, race or
based proceed court then to hold such
this
hearings permit deems parties
interested and affected
respond. will permitted
The defendants to leave ability grouping plans
in effect these schools for the remainder of this
five school disruptive effect
year so therein will However,
be avoided. court’s order plan, such a
approving as submitted or mod-
ified, must entered time to become with
effective the commencement of the
September, year. school Accordingly, will, by separate order,
the defendants
required plan court, to submit such to this copies upon thereof served govern-
ment and the intervenors in this suit no
later than June Hearing 1976. thereon will be scheduled this court promptly Brown, Coleman, Ains- Judge, Chief thereafter. Gee, worth, Hill, Morgan, Roney, Fay and
Rubin, joined opinion Judges, Circuit Vance, Circuit Judge.
Simpson, Judge Circuit filed dissenting' opinion Gewin, in which Goldberg and God- bold, Judges, joined. Circuit Clark, Charles Judge, spe- Circuit filed Robert PUGH and Nathaniel cially concurring opinion Henderson Tjoflat, in which al., Plaintiffs-Appellants, et Judge, joined. Circuit Coleman, Judge, specially Circuit filed concurring opinion. al.,
James RAINWATER et Defendants-Appellees. Gee, Judge, Circuit filed specially con- curring opinion.
No. 72-1223. Rubin, Judge, filed Alvin B. United States Appeals, Court of concurring opinion. Fifth Circuit. May *2 Brummer, Defender,
Bennett H. Public Fla., Eleventh Judicial Circuit of Bruce S. Fla., Rogow, Miami, for plaintiffs-appel- lants. Nimkoff, Pearson,
Peter L. Daniel S. Jr., Miami, Fla., Jepeway, Louis for M. Dade County Bar. Shevin, Gen., L. Atty. Raymond
Robert L. Gen., Tallahassee, Fla., Marky, Atty. Asst. Gen., Zacks, Atty. Palm H. Asst. West Paul Beach, Sutton, Rainwater, Fla., Fergu- for son, Adair, & Berkman. Snowden Miles, Ralph City Atty., City for Frank Hialeah, Fla., Hialeah, Maynard. for Beach, Foosaner, North Miami Aaron Fla., Perry. VANCE, Pardo, Miami, Fla., Segall. Judge:
Joseph Blumenfeld, Robbins, Milton Asst. Jack panel opinion, 557 F.2d traces Miami, Fla., Attys., for Gerstein. State’s complicated history litigation.1 of this Wanick, City Atty., Henry Joseph A. Before the Court on rehearing en banc is Jr., City Atty., Miami Edgar, Asst. A. plaintiffs’ contention panel’s and the hold Beach, Fla., for Pomerance. ing that Florida Rule of Criminal Procedure *3 Rothstein, Miami, Fla., Alan H. for Ber- 3.130(b)(4), pass does not constitutional nard Garmire. muster. The rule adopted by was the Su Hirsch, J. Larry City Atty., Asst. Mont- preme Court of Florida while the case was ague Miami, Asst. Rosenberg, City Atty., pending in this Court. 1, Effective on July Fla., Zacks, Gen., Paul H. Atty. Asst. West 1977 it established pretrial bail system Beach, Fla., Palm for Bernard Garmire. which present is the successor to the bail
practices upheld by the Southern District of
judgment
Florida in the
from which this
appeal originally was taken.
BROWN,
Judge,
Before
Chief
and GEW-
COLEMAN, GOLDBERG,
IN,
AINS
The new rule2 enumerates
six forms
WORTH, GODBOLD, SIMPSON, MOR
of release which come within the definition
GAN, CLARK, RONEY, GEE, TJOFLAT,
non-capital
of bail in
cases. Number five is
HILL, FAY,
VANCE,
and
Circuit
RUBIN
the posting of a bail bond with sureties or
Judges.*
deposit
of cash in lieu thereof.
It
is
*
1. “In
ments on the bail
stein v.
sion. The Court affirmed with modifications
ri,
our
abeyance pending
We then affirmed on the
with modifications.
stein
ings
trict court reaffirmed its
F.2d 778
to this court.
probable
pealed
332
Attorney,
trial detention of
ed
condition of release. The trial court held for
trial detention of arrestees without a
defendants on the second.
against eight judges and other state officials
including
v.
determination of
enjoin
district court to declare unconstitutional and to
of Dade
cause
Due to
“On
Rainwater,
we issued an order
(by
participate
holding
plaintiffs
F.Supp.
on the
petitioned
1971,
November
two
on the bail
Pugh,
illness, Thornberry,
(5th
cause
the State
County,
unpublished
Richard
were unable to
practices
(1975).
on the
probable
Cir.
1107
on the first
After oral
420 U.S.
in this decision.
plaintiffs
question
indigent
probable
11, 1975,
question by separate appeals
aspect
F.Supp.
Florida,
probable
Supreme
Attorney,
Gerstein,
(S.D.Fla.1971).
of the defendants:
Pugh
cause issue and the dis
holding
order)
argument,
brought
103,
original ruling. Pugh
and the
of this case. At that
probable
After defendant Ger-
defendants
post money
charge
cause,
we held oral
Pugh
asking
v.
Court for certiora
cause issue. Ger
Richard
appealed
95 S.Ct.
for further find
the bail issue in
Rainwater,
(S.D.Fla.1973).
a class action
Court’s deci
v.
plaintiffs ap
and
and for the
we remand
cause issue
the federal
Rainwater,
Judge,
The State
solely
Gerstein,
bail
(2) pre
judicial
(1) pre
on the
argu-
aas
did
be
2. “Rule 3.130.
pra,
time we
requested by
earlier
preme
tees of the
tiffs’
Rules of Criminal
occasions after the 1975 oral
ida
(Fla. 1977) (Fla.R.Crim.P. 3.130),
concerning
tiffs’
this Court. The Florida
its rule of
release,
rules that would have accommodated the
Procedure,
ing forms of release:
defendant’s
trial or
conviction
admitted to bail before conviction. After
offense
tion is
sons in
offense unless it is a
Supreme
(4) Hearing
(b)
(i)
(a)
but declined to
attorneys presented
wishes,
proof
rule,
Court of Florida an
rejected
Supreme
First
Offenses Less Than
[*]
thus
great
suggested
appellate
punishable by
criminal
custody
urged
requires
delicate bal
cerning
bail
require
presumption
standards
favoring
the state
the other
vital
interests of
ancing
panel
of release. The
Florida has
forms
of the individual.
enumerated
with those
new rule
constitution
assuring
presence
that Florida’s
compelling
held
interest
reason of
failure
crime.5
ally
charged
defective
trial
We disagree.
presumption.
such
express
with a
remain clothed
individuals
Yet such
with their
innocence and
accept
principle
we
At the outset
intact.
Su
guarantees
indi
solely because of
imprisonment
Chief Jus
speaking through
preme Court
discrimination
gent status
invidious
Stack,
et a 1.
tice Vinson observed
constitutionally
permissible. Williams
4,1,
Marshal, 342 U.S.
Boyle,
States
United
Illinois,
90 S.Ct.
399 U.S.
1, 3,
(1951):
96 L.Ed.
72 S.Ct.
Short,
(1970); Tate v.
401 U.S.
L.Ed.2d
Act of
passage of the Judicial
“From the
“The
demands of equal
of
the laws
of
process prohibit
and
due
de-
The
inquiry
ultimate
each instance is
priving pre-trial
rights
detainees of the
of
what is
assure de
other
to a greater
citizens
extent
than
presence
Systems
fendant’s
at trial.
which
necessary to assure
trial
appearance at
a
incorporate
presumption favoring person
”
* * *
of
security
jail;
recognizance
al
avoid much of the difficulty
Sterrett,
Taylor
to the same effect:
v.
See
subject
inherent in the entire
area. A me
1976);
(5th
v. El-
ceive
a ten
L.Ed.2d 681. Courts do
consider
alto-
applied
an
may not
requirements
question if the contend
dered constitutional
We
no
have
manner.
gether
by statutory
can be
ed for result
reached
indigent, whose
of an
in the case
that
doubt
Lavine,
Hagans, et al v.
interpretation.
as-
reasonably be
trial could
Commissioner,
Department
New
York
the alternate forms
by one of
sured
al,
546,
Services,
et
415 U.S.
Social
inability to
release,
confinement
(1974);
L.Ed.2d 577
Benton-
S.Ct.
imposition
would constitute
money bail
post
Southwest,
Volve-Metairie, Inc. v. Volvo
read
We do not
restraint.
excessive
of an
Inc.,
(5th
1973); Tolg
Cir.
F.2d
require
rule to
new
of Florida’s
the State
Grimes,
(5th
1966). It is
F.2d 92
Cir.
a result.
such
written,
now
rule is
view that as
our
that we reach a fundamental
It is here
interpretation and
subject to constitutional
panel’s deci-
departure from the
point of
application.8
twice
Court of Florida
Supreme
sion.
record before
Court contains
incorporate
declined
practices
only evidence of
under criminal
of its rule.
It
money
part
bail as
predate
adoption
which
procedures
we therefore should conclude
argued
Florida rule. Our review must
the current
intended,
contrary result was
it now
light
be in
Florida rule as
will
setting of
bails
automatic
stands,
judgment
when the
as
stood
unnecessary
continue
Bartley,
was
below
entered. Kremens v.
pre-
constitutionally interdicted
therefore
1709, 52
431 U.S.
97 S.Ct.
will
inev-
indigents
be the
trial detention
Diffenderfer,
(1977);
al v.
Bap
et
Central
result.
itable
Miami, Florida,
al, 404
tist Church of
et
We
Florida
doubt that the
As
L.Ed.2d 567.
express
presump
failure to
such
Court’s
procedures
attack
necessarily imputes
design
to it a
thus
tion
trial,
as
time
existed
the case has
requirements.
to circumvent constitutional
lost its character as a
live contro
present,
that “all
fac
rule mandates
relevant
Its
versy and is therefore moot. Kremens v.
in determining
“what
tors”
considered
*6
Bartley,
supra; Diffenderfer
v. Central
to
of release is
assure the
form
Church,
Beals,
v.
Baptist
supra; Hall
396
If the
“is
appearance.”
same
defendant’s
45,
200,
(1969);
90
U.S.
S.Ct.
panel is due to be vacated.
In order that
I. THE ISSUE
portion
the bail
of the district
Opin
court’s
As relevant
appeal,
to this
this case is a
ion
Judgment
12,1971
and Final
of October
class
brought
action
on behalf of indigent
precedential effect,
will have no
we vacate
persons who have been
prior
detained
portion
concerning Count III of plain
trial
because
could not
pay
afford to
(the
tiffs’ complaint
count)9
and re money bail. The
issue raised
plain-
mand with directions that Count III of said
tiffs is
the setting
whether
of money bail
complaint be dismissed as moot10 without
indigents
system
that does not
—under
costs to either party.
require a presumption against money bail in
the case of indigents
Fourteenth
—violates
OPINION AND FINAL JUDGMENT OF
equal protection.
Amendment
See
F.2d
COURT VACATED IN
DISTRICT
PART.
1194-95,
1201-02.
REMANDED WITH
CASE
DIRECTIONS.
By
process
some
reasoning
appar
ent, the majority has transformed this nar
SIMPSON,
Judge,
with whom
broad,
row
hypothetical
issue into a
ques
GEWIN,
GODBOLD,
GOLDBERG and
Cir-
encompassing
tion
all rights, not simply
Judges, join,
cuit
dissenting:
equal protection rights,
persons,
of all
Today’s
en
sight
banc
has lost
indigents.
limited to
Thus the majority
case,
single question
in this
writes,
narrow
view
deprivation
such
of liber
“[w]e
panel:
issue decided
Whether the
ty of one who is accused but not convicted
*7
protection
equal
clause of the Fourteenth
presenting
of crime as
question
having
indigent pretrial
Amendment entitles
de-
broader effects and constitutional
implica
presumption against
tainees to a
impo-
the
tions than
appear
would
from a rule stated
money
appear-
sition of
bail to secure their
solely
protection
for the
of indigents”. Ma
panel
at
trial. The
ance
answered this
jority
Then,
opinion, at 1056.1
in address
Ch.
portion
Regents,
(5
9. The
referred to consists of all of
the
Board of
1061 ap- larly, long assure it had of release will been the law form in Florida shall, “[¡Judicial the on the basis of officers pearance, charged with the information, take into account the responsibility fixing available bail are by bound nature and circumstances of the offense the Constitution to fix bail in a not exces- charged, weight the of the evidence Buchanan, sive amount”. Matera v. 192 defendant, ties, 18, (3d family D.C.A.Fla.1966), the the defendant’s 20 So.2d citing resources, Sweat, employment, 659, financial character Mendenhall v. 117 Fla. 158 So. condition, length and mental of his resi- 280 in the community, dence his record of con- Under both the practice 1971 and the
victions”,
comparable
and other
factors.
rule,
the judge must consider all rele-
factors,
vant
including the defendant’s fi-
years ago,
Seven
the district court in this
resources,
bail;
nancial
in setting
he
findings
case made
make
must
of fact which
higher
set bail no
than that which he
parent
merely
the 1977 rule
deems
codifies
necessary to assure the defendant’s
practice:
appear-
the 1971
trial;
ance at
and he has discretion to re-
The record establishes that it is
policy
lease a defendant on his own recognizance.
sufficiently
of defendants
to set bonds
The principal change
effected
the 1977
low to
persons
allow accused
their release
rule is that non-financially conditioned
assuring
subsequent appear-
while
their
forms of release implicitly available to the
severity
ance at trial. The
crime
judge in 1971 have
specifically
been
enu-
along with the accused’s ties to the com-
merated.
record,
munity, past criminal
and finan-
cial resources are all considered in the
Hence, the majority is simply incorrect in
setting
allegation
of bonds. There is no
concluding
an attack on the Florida
“[a]s
question
bond in
was set
in
procedures which existed as of the time of
judicial
of that
excess
which the
officer
trial,
the case has lost its character as a
appear-
deemed
to assure trial
present,
live controversy and is therefore
ance.
moot”. Majority opinion, at 1058. Be
Rainwater,
1107,
Pugh
F.Supp.
cause the current
Florida bail rule ensconc
(S.D.Fla.1971).
authority
practice
defendants,
The
of Florida
es the
which the
in
1971,
courts to condition
release on nonfi
swore
followed and which they
recognized long
nancial factors was
before
follow,
were
required
otherwise
the con
promulgation
of the 1972 and 1977 troversy in this
hardly
case could
be more
903.03(2)(a)(3).
rules. Cf. Fla.Stat.
Simi-
alive
deserving
nor more
of resolution.3
support
three-judge
3. The cases cited
was unconstitutional. After a
dis-
finding
inapposite.
statute,
of mootness are
In Kre
upheld
Legis-
trict court
the Florida
119,
Bartley,
1709,
mens v.
431 U.S.
97 S.Ct.
repealed
lature
it and substituted a statute em-
(1977),
plaintiffs
L.Ed.2d 184
five named
filed a
ploying
“predominant
use” test for the ex-
challenging
constitutionality
class action
emption.
Supreme
Court
remanded the
Pennsylvania
governing
voluntary
statutes
case to the district court with leave to the
Pennsylvania
admission and commitment
plaintiffs
pleadings.
to amend their
In Hall v.
years
mental health institutions of
Beals,
396 U.S.
90 S.Ct.
III. THE
only be made where the issue of state law
OF ABSTENTION
is uncertain.
from “fur-
abstains
The en banc
528, 534,
Forssenius,
380 U.S.
85
Harman
new Florida bail
ther consideration”
1182,
(1965).
concludes,
1177,
50
Ad
“the rule is sub-
14 L.Ed.2d
because,
S.Ct.
rule
and
in Harrison v.
interpretation
ditionally, as the Court noted
ject to constitutional
adjudication
167, 176-77,
“[fjurther
P.,
A. A.
79 S.Ct.
plication”
N.
C.
U.S.
ad-
challenge
constitutional
1025, 1030,
(1959):
of a
merits
presentation of
await
to it should
dressed
adjudicate
should not
federal courts
[T]he
application by the
reflecting
record
proper
constitutionality of state enactments
Majority
Florida”.
courts of
State
until
fairly open
interpretation
basis, it remands
1058. On
opinion,
a reason-
state courts have been afforded
to dis-
court with directions
district
to the
upon them. This
opportunity
pass
able
protection chal-
plaintiffs’ equal
miss the
course,
not,
does
involve the
principle
the ma-
With deference to
lenge as moot.
jurisdiction,
of federal
but
abdication
as the
in this case
jority, I view abstention
postponement of its exercise
only the
of abdication.
equivalent
omitted; emphasis
. .
[citations
of federal
from the exercise
“Abstention
added].
not the rule”.
exception,
jurisdiction is
principles,
with these
Second
Consistent
Dist. v.
Conserv.
River Water
Colorado
caveat relevant to
expressed
has
800,
1236,
States,
United
this case:
1244,
The branch
47 L.Ed.2d
deliberately
Where the state court has
invoked
the doctrine of abstention
interpretation
of a statute
avoided
in Railroad Commis
majority, originating
constitutionality or
might
save its
Co.,
496,
312 U.S.
sion of Texas v. Pullman
claim,
abstaining
moot the federal
643,
(1941),4has been
4. Most
Co.,
Equipment
342 U.S.
Fire
Co. v. C-O-Two
recognize
to which
several distinct situations
(1952); Wright,
Federal
52 at 219
Ed.
§
case,
December, 1972,
relevant
to the issue in this
In
As
Supreme
Florida
unambiguous:
adopted
Florida rule is
it does not Court
a comprehensive revision of
presumption against money
Procedure,
include a
bail in
its Rules of Criminal
effective
indigents.
The
February
the case of
absence
such
1973. In re Florida Rules of
apparent
Procedure,
both on the face
presumption
a
Criminal
(Fla.1972).
So.2d 65
light
history.
of the rule and in
of its
At that
time the
Supreme
Florida
Court
past
years,
in the
seven
expressly rejected
Twice
Florida
proposal by
a special
rejected
presumption
Supreme
advisory
Court has
committee to incorporate
pre-
against money
enacting
sumption
bail.
In
the new
against money bail.
Justice Er-
borrowed,
rule in
that court
almost
vin dissented because he felt that
the rule
verbatim,
analogous
from the
Federal Bail
adopted by the court would discriminate
1966,18
(1970), against
Reform Act of
U.S.C. 3146
the poor:
§
language
of the federal act
but deleted
I am unable to support Rule 3.130
creating
presumption against financially
which will continue the current discrimi-
conditioned release. See
options are same as those available un- In its following “Note” the proposed presump- der the federal rules without rule, the Committee said: in favor of recognizance tion release on or 1.130, replaces “This rule Rule Florida appearance”. unsecured Procedure, Rules of Criminal entitled ‘Bail.’ The existing placed almost 2. The Courts of Have Florida Had a complete emphasis bail rather Opportunity Reasonable to Pass The On than less onerous conditions of release. Question Tendered In This Case: For seven proposed The rule presumes that if the stayed while years Court its hand likely defendant appear, there is no Court twice revised its arrest, or, need for an if an arrest has years bail rule. And after seven and two occurred, the defendant should be re- revisions, change there has been no in the leased on recognizance promise his own regarding Florida law bail which moots the appear.” challenge in against this case. Considered adopted by Rule per- this Court will history litigation, of this the majority’s petuate that money-bail emphasis; I am decision to abstain makes a mockery unwilling to support further Florida’s ar- Pullman doctrine. chaic bail bond system. plain- district court ruled tiffs on their challenge to the Florida bail [******]
rule on October
1971. Because the
The Advisory
dis-
Committee’s
rule at-
plain-
trict court also ruled in favor of the
tempted
unjust
to eliminate these
results
ants,
Zacks,
Attorney
Paul
guaranteeing
Assistant
system by
bond
the bail
Florida, suggested
financial
that the 1972
regardless of
General of
persons,
that all
needlessly be detained
construed to include the
status,
bail rule could be
would
when detention
plaintiffs
advocated
pending their
justice
counsel,
neither the ends
Phillip
serve
Hub
plaintiffs’
would
and that
*11
pre-
It created a
interest.
public
bard,
interpretation
nor
such an
should seek
released
an accused is
be
sumption that
Supreme
pan
Florida
Court. The
from the
there
it is shown that
bail unless
without
el,
Gewin, Bell,5
up
Judges
and
made
that his release should
to believe
is reason
suggestion
and
Simpson, approved
fashion.
in some
be conditioned
parties
cooperate
strongly urged the
of release were found
If conditions
question to the
presenting this
Florida Su
pro-
rule
necessary, the Committee’s
excerpts from
preme
following
Court. The
shall im-
judicial
“the
officer
vided that
argument
panel’s
illustrate the
de
the oral
less
272 So.2d
in 1972had an
ing).
claim unaffected.
plaintiffs’
pose
towas
ably likely to assure
pearance
last
torily guarantee the defendant’s
ance.
where no
officer
ise to
officer
mined a
presence,
imposition of conditions.
attempt
system one
approved.
Clearly,
The Committee’s
opted
rule which would
insufficient to assure
judicial
resort,
the least onerous
appear,
In each instance where
acting under his
or his authorized
then,
at
claim in this case.
summons,
at
in court.”
other condition would
required
Sfc
more means of
and
a rule which left the
officer
eliminating
poor.'
opportunity
proposed
the Florida
personal recognizance
#
even
the defendant’s
only in extreme cases
rule was an
It should have been
give reasons for the
the defendant’s
Money bail was a
(Ervin,
fully
have mooted the
[*]
condition reason-
authority
from our
the defendant’s
deputy, or law
Supreme Court
discriminating
required
promulgate
secured bail
It neverthe-
Sfc
J.,
excellent
satisfac-
dissent-
appear-
judicial
federal
deter-
prom-
legal
ifc
termination to
ed for federal review:
opportunity
mission or committee—bar
edy
precise enough or broad
someone—
holding
Supreme
a court case about it.
think
What
amendment of
sought
alternatives when
da.
tell
your brief.
all the alternatives should be
power.
we were
where
something
and I did it because I
Supreme
JUDGE SIMPSON:
JUDGE SIMPSON:
MR.
JUDGE BELL:
go
you
I don’t know how much we should
about
you ought
we’re
ZACKS:
along
from
Now the case has been
about what to ask them or how
Court]
to resolve the
Court of Florida’s
be to
getting ready
go before them and ask for
wrong
abeyance
doing
talking
in there—I
give
the rule rather than have
Very
to have this state com-
Supreme
to cover
go
it,
with the
1971,1 suppose
you
the Florida courts
but all the
before [the
while some relief is
about is this Court
true.
thought
brief this
If
I don’t know.
question present
enough,
granted
all the
[the rule]
Court
committee, or
system
displace
rule-making
explored in
possible—
there was
the rem-
going
of Flori-
—some-
possible
matter.
Florida
where
stay,
isn’t
on
time, nobody’sdoing anything
all this
and
Supreme Court
After the United States
up
again.
we’re faced with it
It seems to
the other
Pugh, supra,
decided Gerstein
Attorney
me
General of Florida
case,
additional oral
aspect of this
we heard
get
pre-
the act and
would want to
into
question on November
argument on the bail
responsibilities
rights,
serve state’s
state
argument for the defend
1975. In his
August
panel
original panel
1977. The case was
Although
a member of
quorum,
resigned
Judge
as authorized
argument,
decided
Bell
the time of oral
46(d).
prior
U.S.C. §
to decision of this case
from the Court
system’s
On
the Florida court
several occasions after
preserve
the 1975 oral
argument, plaintiffs’
If we make these
rule-making power.
attorneys and attor
neys
rules,
County
Association,
rules.
for the Dade
Bar
we’ll make other
to do.
straightened
We’d rather
the courts.
taking over our state
to
in this field
it out
courts alone so
this in the federal courts
JUDGE
JUDGE GEWIN:
right.
MR. ZACKS:
be—embrace the idea
4s
[*]
We don’t want to
.
We don’t want
[*]
[*]
BELL:
represents
.
out. The
you
.. And leave the federal
litigation
people
[*]
[*]
Well,
go
I think
We tried to
business”.
all
won’t
[*]
[*]
Attorney
we didn’t
and I would
to tell
write the rules.
Judge Simpson
get
brotherly
say,
try
[*]
[*]
people
you
to work
General
*12
get you
“You’re
thing
bring
what
[*]
[*]
love
also with regard
as amicus
participate in
tion that
committees of the
The Attorney General of Florida refused to
Florida
specific
ary,
Rules of Criminal Procedure divested this
Court of
mulgated
Procedure,
“[m]oney
rehearing,
tiffs. Counsel for plaintiffs petitioned for
Florida Bar re Florida Rules of Criminal
Crim.P.
Supreme
revisions
3.130),
jurisdiction
curiae,
the 1972 revision of the Florida
a new rule concerning
bail should be
the Florida
these
So.2d
part,
but
indigents,
presented their case to the
Court and to
requested
integrated
efforts,
in this case.
declined to
on the
(Fla.1977) (Fla.R.
only when it is
used,
taking
ground
Florida Bar.
appropriate
Court
adopt
In Febru
especially
bail,
plain
posi
pro
point
like to
out—
found that no other
will
condition
reason
you’re
doing—
BELL: But
ably
JUDGE
assure the
appearance
defendant’s
well, you’ve
years
you
had five
court”. The
Supreme Court,
with
get it
anything
haven’t done
out of
two Justices dissenting,
petition
denied the
your
courts.
I was
friend.
rehearing.
federal
for
get authority go you further than are nity by the 'demanded abstention doctrine say you go today want prepared and has three unambiguously times refused way is the to do it. because it’s —this capable to rule in a manner mooting this Have Florida take care of its own busi- years case. For seven we have abstained. put ness rather than over on feder- The time has for this come federal court to al courts. reach plaintiffs’ the merits of the federal
[*] [*] [*] [*] [*] [*] constitutional claim. We’re talking JUDGE BELL: about Ironically, while the en majority banc very important. that’s policy matter purports to exercise “a wise discretion” in . . get restraining authority GEWIN: . You “because JUDGE of ‘scru- judges pulous Tell him the federal regard rightful independence for the Shevin]. [Mr. ”, Pullman, good help that he man to of the state thought governments’ supra, was problem. says, And if he at at it neverthe- solve door”, “Well, you get out of then less instructs the Florida Court on it, can interpretation we’ll decide it. We decide but the correct of the 1977 bail just doubt”, the state do rule. we’d rather would “We have no writes the ma- jority, indigent, “that in the case of an it. Rather, trial could varieties of release. it re- at whose forms of of the alternate by one be assured quires consideration of the need for a rebut- inability to release, pretrial confinement presumption against table one form pre- imposition constitute money bail would post trial applied bail—as to one release— opin- Majority restraint”. of an excessive persons indigent pretrial class of detain- — in footnote 8 of its Similarly, ion, at 1058. ees. equal protection Under established endorses a “Commit- opinion, the principles, expounded length as in the adopted by the Florida Su- tee Note” panel opinion, there is manifestly a consti- the commit- Court, explaining preme necessity tutional for such a re- the new rule as interpretation of tee’s who, definition, case those have form of release” “the least onerous quiring money. panel no never addressed the by of a ... absence “is enhanced priority sequence of alternative forms of alternative”. and, indeed, that, did not hold under derogate the ma- comments While these presumption, money bail never be lofty prin- professed concern for jority’s imposed indigent. on an federalism, they reveal that the en ciples of separated are not panel and the banc court Secondly, the ratio decidendi of pan- to the substan- gulf respect by a wide holding el’s was that the presumption the' principles supporting plaintiffs’ tive against money guarantees proper re- point The true contention in this case. gard equal protection strictures in the it, the mini- departure, as I see concerns concerning pretrial decision release of indi- *13 guarantee the required standard mum gents. Here again, majority ignores indigents in the equal protection rights of legal issue it before and erects a straw panel opin- The pretrial context of release. easily man In noting demolished. that the right and con- narrowly ion focused on Supreme Court of Florida has twice de- least, that, very presump- at the cluded incorporate presumption clined to against indigents was against tion for money bail into the Rules of Criminal Pro- majority contents necessary. The en banc cedure, states, the majority argued “It is assumption rights with the that the of itself that we therefore should conclude that a indigents pro- of all —and —will intended, contrary result was that the auto- by the rule excessive bail. tected setting money matic of bails will continue reject position two reasons. this for and that the unnecessary and therefore con- First, despite majority’s the en banc at- stitutionally pretrial interdicted detention holding, tempt panel’s to disavow the indigents of will be the inevitable result”. arguments legal' posi- are directed toward a Majority opinion, course, at 1058. Of no advanced presented tion never argument such been in has made this case. posits that ar- panel. majority “[t]he point is not that the new rule “re- favoring specified priority se- gument various forms quence quires” for the of or makes “inevitable” the automatic impact may vary the fact that its overlooks bail, setting money but rather that it is Majority varying under circumstances”. wholly lacking safeguards in to insure that opinion, at Ultimately, concludes: indigents are against, not discriminated priorities “A mechanical consideration of inadvertently, even in decision-making among may various other modes of release process. requirements. conform to constitutional The majority concluding deludes itself in reason, however, perceive why no less We that the new bail rule furnishes adequate explicit requirements may applied not be in safeguards by limiting bail to that which is altogether manner”. Ma- an “necessary” appear- to assure a defendant’s reasoning This at 1057-1058. jority opinion, ance. At least since when the Florida does not involve because this case specious Supreme Court decided Mendenhall v. or “a specified priority sequence” “a me- Sweat, (1934), priorities” among chanical consideration of 117 Fla. So. State, proof. not See Lambert v. that bail burden of has been rule in Florida (1st as to Fla.1963).7 in so excessive an amount So.2d 675 D.C.A. I can be fixed escape the accused’s conclusion probability preclude Yet, case, to furnish it.6 has chosen too frail a being able vessel for such a cargo Rehabil ponderous of the Corrections and of human rights. the Director County, Flori Department of Dade itation Judge Weinstein of the Eastern District da, 3, 1971, approxi that on June testified New York stated the issue well: were housed mately detainees country In this we pay do not ser- lip Dade County Jail and the in the Dade vice value to the rights- human Stockade, majority of and that County dignity individual mean to live —we they imprisoned could were because those A our ideals. primary role of the courts Similarly, R. not afford bail. 308-10. is to translate these noble sentiments into District a United States January, palpable reality. percent in Miami found that Court States, Birnbaum v. United F.Supp. detainees at the Dade Coun the pretrial (E.D.N.Y.1977).8 solely there because could were ty Jail Sandstrom, Bridges ago, No. years bail. Fifteen then Supreme not afford Court In (S.D.Fla. Jan. Justice Arthur Goldberg complained 74-994-Civ-JE then, effect, “necessity” requirement “the and other organs courts govern- ment, only illusory for the provided federal, has both state and have rights indigents. Neces equal protection brought ingenuity their sufficiently bear entity, indefinite sity [many] is an to be determined on crucial areas equal justice”, judge’s including problem of a discretion in the exercise of bail indigents. hoc, State See, ad g., waste”, case basis. e. wrote, case “Think of the needless he Sandstrom, rel. Bardina individual, ex 321 So.2d “—to the the family, exercised, Fla.1975). (3d community every Once time per- D.C.A. a responsible — only presumed by discretion is reviewáble son a law judge’s to be innocent abuse, bearing kept jail awaiting incarcerated solely defendant trial because he *14 concurrence, special Judge judge recog- Clark that the In his the accused on monetary requires “When a court bail it appearance states: on an nizance or unsecured bond primarily financial is not concerned with the inadequate, unless he determines such to be Instead, person custody. of the status impose only and then to the least restrictive is to ensure the accused’s main concern necessary guarantee ap- further conditions to indigent pearance at trial. . . . Since an pearance. provision This omitted self- seems amount, post any monetary never bail in can enough, evident and innocuous im- since to equal process or due considerations pose beyond necessary restrictions those ability indigent the of fund the based on the guarantee certainly would bail, destroy concept the entire of mone- would unconstitutionally excessive bail. Neverthe- Excessiveness, only tary bail. the constitution- less, provision, the omitted when with read ally guide should be the measure articulated provision another omitted of the act federal Florida, however, In under Mendenhall used”. requiring writing the to state in his Sweat, directly supra, relat- excessiveness is imposing reasons for a condition or condi- ability pay. accused’s State ex ed to an Cf. tions of release where the accused is unable Sandstrom, (3d rel. Bardina 321 So.2d 3146(d) (1970)], to meet them U.S.C. [18 § Buchanan, Fla.1975); Matera v. D.C.A. provided (however broad) judi- a standard (3d Fla.1966). prece- So.2d 18 D.C.A. These review, cial which the committee or the su- money notwithstanding, in Florida dents bail preme perhaps court desired to avoid. destroyed. been has not Yetter, The Florida Rules Criminal Proce- commentator, apparently sympathetic to 7. One Amendments, dure: 1977 5 Fla.St.U.L.Rev. “necessity” majority’s re- view that the (1977) (footnotes omitted). 246-47 quirement protection comparable to a affords by Judge 8. See also the excellent article John- bail, against money nevertheless Alabama, son the Middle District of The Role failing pro- the new bail criticized rule for Judiciary Respect of the With to the Other meaningful standard of review: vide a Government, Branches of Ga.L.Rev. incorporate a Florida rule does not [T]he Act Bail Reform [Federal] mandate thought money”.9 yet panel that opinion And approach to raise bail
is unable distinguished criminal law had effect only year, last inevitable of rendering mon- Foote, lamented the “incredi scholar, etary unconstitutional, bail Caleb and because I Court, courts in ble failure of analysis considered that misfocused and anything to do about general lawyers, and wrong. I cannot read the Constitution pervasive most denial what has become prohibit monetary either bail require jus entire criminal equal justice in the hierarchy of of appearance. assurances setting bail for system”, tice explicit only Constitution’s limitation on indigent defendants.10 imposition of bail is the eighth amend- ment’s that may command it not be exces- before it the panel, having proper sive. This imperative constitutional does controversy ripe genuine and a parties prevent from continuing state adjudication, to conform mone attempted system maintain a release of all in Florida to “the moral tary practices monetary based on bail alone. concept noble imperative implicit That a permit state also persons incar- the law”.11 equal justice The en before pending cerated trial to obtain their free- majority, wrongly regrettably, has banc dom other means should not create through the invitation. chosen decline requirement priority that a respectfully I dissent. order developed among per- means mitted. CLARK, Judge, CHARLES Circuit with In the view of en banc majority, the TJOFLAT, whom Judge, joins, spe- Florida bail are rules constitutional because cially concurring: they require “meaningful consideration I concur en banc majority with the that possible other alternatives.” The majori- this case is moot as it insofar involves ty writes that the “incarceration of those controversies which this class raised concern- who cannot the requirements aof [meet ing the former Florida bail rules. Those schedule], master bond meaningful without superseded controversies have been possible alternatives, consideration of other new agree rules. I further the case infringes process equal on both due is not moot insofar as concerns a consti- protection requirements.” “The ultimate tutional challenge validity to the facial inquiry,” in words of the majority, “in rules, agree new I what each instance is what is to reason- majority’s understand to be the conclusion: ably presence assure defendant’s at trial.” those new are constitutional rules The majority’s opinion explicitly states their I respectfully disagree, face. how- inquiry would eased hierarchies ever, with the majority’s reasons for con- of release or by devices mechanical consid- cluding that rules facially the new are valid. *15 eration of in alternatives an or- established preference. Implicit der of in majority’s opinion The en banc those state- states ments is a disapproval of panel’s it disavows view that the the monetary Indeed, indigents. bail for hierarchy Constitution mandates a of de- trial, majority’s opinion states appearance vices to ensure at that it would an but then utilizes the same excessive restraint for the state approach analyzing imprison an constitutionality indigent appearance state bail if statutes as his at trial could by opinion. was taken- panel’s I voted assured other means. belief, for en banc reconsideration because Such however attenuated in ex- Action, Sun, Goldberg, Equality 21, 1977, 9. Governmental ca”. The Gainesville Nov. 8E. (1964). Coming 39 N.Y.U.L.Rev. He is better known for his article The Bail, Constitutional Crisis U.Pa.L.Rev. 10. Professor Foote’s comments were made in an article him entitled Pre-Trial Detention: Jail?, appeared Bail or as Part XI of a Goldberg, supra note at 218. syndicated series, and Justice in Ameri- “Crime challenges who holds those find leads to the conclusion necessarily pression, indigents for is unconsti- monetary support bail in the Constitution. tutional. COLEMAN, Judge, specially con- it is requires monetary bail a court When curring. with financial concerned primarily Instead, its person custody. status majority opin- in the I have concurred the accused’s is to ensure concern main (1) repudiates the notion ion because mone- theory at trial. appearance indigents the Constitution re- that as impel it will the accused is that tary bail imposition quires appear making failure for trial return (2) because it con- monetary bail and property. forfeiture of automatic cause the the new Rules are fa- cludes that re- personal from posts who bail person A cially constitutional. if property of his own faces the loss sources however, Judge impressed I am defini- indigent, by An appear. he does not comments, which prompts some ob- Clark’s Imposing resources. tion, personal has no my own. servations of indigent necessarily on an monetary bail or rela- he has friends
contemplates that I continue to believe that criminal laws as an property their willing to offer tives individuals, regardless alike to all apply only It not appear. that he will assurance or the lack wealth of it. Most citizens the de- belief their sincere commands who are less well off than others con- directed, but at trial as appear will fendant scientiously obey the law as a matter of personal propriety them to also commits great A disservice is poorer course. done Therefore, it is in such behavior. interest by inferring that the dollar people sign constitutionality gauge illogical special them to a kind of relegates second process or by notions of due monetary bail citizenship which them incapa- class renders on the defendant’s based equal protection obey or the rules of normal unwilling ble indigent can never indigency. Since encouraged are to wallow in They conduct. amount, proc- due monetary bail in post before supposedly inferior status based equal protection or considerations ess by being singled special law out for treat- to fund the ability indigent on the responsibility ment when it comes to bail, destroy concept the entire would compliance with the law. of the most Some Excessiveness, only con- monetary bail. are highly respected citizens those who do should be stitutionally guide, articulated great person- who have not have but is, systems If it state the measure used. al worth. monetary bail can continue. structured on it, entitled to indigents If desire are tailored to such bail can be The amount of public expense. They counsel at now re- defendant, his trustworthiness of the ceive it- as a matter of mere routine. This community, the seriousness of ties to the very of counsel addresses the guarantee offense, have a other fáctors which problem we now have under consideration. bearing assuring his direct person jailed except No be arrested trial. cause. If there is no upon probable proba- case, Speaking monetary in a cause, provides ble Writ an imme- Great said, “Bail, course, Supreme Court remedy. only has to invoke diate Counsel system basic to our of law.” v. Kue- Schilb imprison it. Those who arrest or without bel, 357, 365, 479, *16 92 S.Ct. penalties civil probable cause are liable to (1971). The Court has never punishment, or criminal or both. monetary suggested any way that bail is in course, may denied rea- people Of not be constitutionally suspect. I am not unaware cases, they in bailable but are sonable bail challenges monetary to the use of that bail bail their own terms. But not entitled to on have been made. in the absence of limitation is that exces- slightest contrary even the intimation from Court, I unwilling required. am to be sive bail shall not be proverbial dog. suggest that people state administration these jurisdiction over Our procedure and is limit- are the to be properly ones identified of local law criminal (dissent, 2), Martial’s n. goats commands the Con- which enforcing the ed to discusses, no dissent complains nobody States. We have and I of the stitution United beyond propose that limit. them. to discuss authority to advance magistrate officer or committing If the It seems me to that the appropriate excessive bail an im- mistakenly prescribes analysis, along equal whether protection If remedy is available. reasonable mediate lines or process, those of due not should it cannot make and the defendant bail is set focus on one factor of the grocery Florida not command that he does the Constitution list to the of all exclusion others. No one principles these are released. If shall be maintains we are not in presence all citizens applied not to alike then interest, of a compelling state that of assur- be released on every defendant should his ing accused of crimes will approach, untenable recognizance own pear for also right, trial. Present is a —an often, with experience as has little suc- sad charged right proven guilty of one but not cess, tried to teach us. go presence free if his at trial rea- can sonably be secured. The list of means for GEE, Judge (specially concur- obtaining provided by release Florida for ring): such persons should therefore be as inclu- deference, possible, With it seems to me that in sive as permitting anyone rea- able debating presuma- some sonably the issue whether his by assure at trial bly persons awaiting innocent trial may, means available to him to do so. The protection, consonant with equal among be re- fact that many one of the means grounds leased on available to specified others— is unavailable to other detainees including ground arguably involving clas- does not mean he should be re- by sification wealth—both the leased if it is available him. For wrong dissent take hold focus right end of must be on release—to innocent, stick. presumed bail—of those still effectuating right by all reasonable system Florida by pre- maintains a means, available limiting rather than on trial detainees may obtain release various right possi- exercise narrowly of that as as ways, putting up the fifth of which mon- ble—to to all universally means available ey bail. The maintains dissent that since so is right detainees. To do to stand the bail, up this paupers put cannot the scheme release on its head. discriminates them on against grounds of wealth, classification, But, suspect objected, an it arguably suppose Florida failing pro- should six criteria a incorporate add to its seventh so, release, viding say, such bail for them. If this be for females accused provi- How equal age forty? and the attack over could such a these carried, sion, indigent keyed age, I do not see pass detainees had to sex constitu- My experi- benefitted from their tional answer how would have muster? is that if victory. write presump- reliably We cannot such a ence indicated that over females (or so) tion indigents forty as the contend for into the almost invariably appeared could although rule. All we do is strike down trial released without other securi- provision ty, entirely, might as well unreasonable on part invalid for want such a presumption. place Florida authorities to addition- The only empha- result al of such action as that conditions on their release. The sis, words, us might would be that who should others other be on the breadth traditionally-recognized span means have been and rationality classifica- appearances tions, enabled universally to secure their and so not on how each mode have obtained must remain release incarcer- to detainees. specified available manger by analysis ated—barred from the Aesop’s But if I the dissent’s understand *17 senters that “the practice” would be stricken assume will such a criterion it under equal prevail following adoption of hand as violative of the 1977rule. down out This is only logically, not unwarranted but protection. precedent without cited as a basis for de- right right, deal with Here we claring state action unconstitutional. See citizens. I presumably innocent release of Steinberg, Fusari v. 419 U.S. release not conceive that such should cannot 521. 42 L.Ed.2d it widely as as available made beside the rationally point can be. It is may ground hap- for release that a rational suspect otherwise with an
pen to coincide may circumstance
category. Perhaps rationality, its but scrutiny strict
trigger scrutiny deter- of that should
the aim is not category reason-
mine whether the purpose— its
ably calculated effectuate it who means those WRIGHT, Petitioner-Appellant, Archie D. at trial —or wheth- assure their drawn, narrowly eliminate er it is too ESTELLE, Jr., Director, J.W. Texas able to may not avail it others because Corrections, Department of jail popu- of it and so swell themselves Respondent-Appellee. not be there. who need lations No. 76-2146. that the new with the agree presently be- only bail rule is the issue Appeals, Court United States rule and that is fore the court Fifth Circuit. me, it pretty To facially unconstitutional. May detain- requires release of clearly categories satisfy any of ee if he can of which is appearance, his one
securing n. (Majority opinion, Since
open-ended. permitted by all means
this is so: since magistrate by the
rule must be considered whether release can be he decides
before not, I do not see that matters
risked or first, or last. The he considers third
which of a
dissent’s discussion paupers, bail say more than that the
seems to me no must consider this means last of
magistrate him, is paupers Clark, are there- all when before Thornberry, Roney, Gee grasp. Hill, refined for me to Judges, fore too Circuit filed specially concur- ring opinion. RUBIN, Judge, B. Circuit con- ALVIN Godbold, Judge, Circuit filed a dissent- curring. ing opinion Tjoflat, in which Goldberg and eloquent. rhetoric of the dissent joined. Judges, dilemmas, have two horns. goats, like But not unconstitutional The new not even the dissent does face and
on its It cannot be proposition.
suggest applied because as
held unconstitutional concerning how the yet no evidence
there is it. The dis- Florida will execute
courts notes bail in the holding, majority money case panel’s ing the specified priori of favoring indigents. argument “[t]he forms various of ty sequence vary impact may the fact overlooks II. THE IMPACT FLORIDA’S OF circumstances”, explaining varying under NEW BAIL RULE than release other of forms majority The posits en banc that the revi- may persons prob with disfavor money bail sion of the Florida bail rule which took opin indigency. Majority than lems other place during the pendency appeal of this ion, today Finally, at 1057. the Court has mooted the district court’s decision and personal liberty which “Rules under states: requires that we abstain from “further con- are limited the consti deprived is to be sure, of the rule. the new sideration” To all, they moneyed guarantees of tutional significant impact rule had a on has friendless, indigent, or em befriended or bail, non-equal non-indigent, non-money transient, resident or unemployed, ployed protection hypothetical cases about which at 1057. Id. or bad”. reputation good of not, the majority speculates. It has how- be, as these sentiments Noble ever, impact equal protection had an on the entirely from the true majority deflect rights indigents concern of this sole —the lawsuit, indigents targets of this to the district case—sufficient render bail.2 moot or warrant absten- court’s decision equal majority skirts the Similarly, the reality, governing tion. In the law offering gratuitous ob- issue setting bail for remains indigents rights not servations about constitutional same today two revisions of the —after We plaintiffs. are told that invoked Florida Rules of Procedure—as Criminal requirement excess “[a]ny of” was when this suit was filed over seven necessary provide reasonable as- amount years ago. presence of the accused’s at trial surance majority notes that the latest revi- inherently punitive and run afoul “would sion Florida bail rule mandates that process id. at requirements”, due “all relevant factors” be considered in de- cases, pretrial and that certain confine- “what form termining of release neces- indigents post “for inability ment sary appearance”. assure the defendant’s imposition money bail would constitute “If a then monetary bail required, In- Id. at 1058. an excessive restraint”. the amount”. Fla.R. shall determine deed, majority agrees with panel 3.130(b)(4)(ii)(1977). explaining In Crim.P. that “incarceration of those who cannot [af- capable this rule is of construction money bail], ford without con- meaningful requirements, alternatives, consistent possible sideration other in- states, pro- inquiry ultimate fringes process both due and equal “[t]he requirements”, tection at instance is what is (emphasis id. each added), presence but summarily then without assure defendant's rejects explanation opinion, at 1057. panel’s qual- Majority further trial”. determining ification that equal protection provides also demands “[i]n standing represent in this case had not a case of murder nor assault the inter- This is nor except indigents. poison. involving goats. ests class See 557 a case three It’s Any language purporting my neighbor at 1190 n. F.2d them and the claim that stole rights proved. determine the other than indi- You court wants accusation gents Cannae, would have been dicta telling since federal keep us about the battle of power proposi- Mithridates, courts lack to decide “abstract