State v. NeislerState v. Neisler
This case presents two significant, recurring issues regarding the modification of bail by criminal district court judges in Orleans Parish. The first issue is whether a “regular” criminal district court judge has jurisdiction to modify bail set by the magistrate section of the court (i.e., the magistrate judge or commissioner) before an indictment or bill of information is filed and before the case is allotted to a specific regular section of the court. The second issue is whether
Classifying the criminal district court judge‘s change in the type of defendant‘s bail as a de facto “bond reduction” and concentrating solely on the first issue, the Fourth
While we reach the same result, we do so for a wholly different reason. We find that the criminal district court judges of the regular sections A through J and the judicial officers of the magistrate section share concurrent jurisdiction both to set and to modify bail. We further find
FACTUAL AND PROCEDURAL BACKGROUND
On Saturday, June 12, 1993, Amanda Neisler was arrested on two felony charges, involving drug trafficking. On that same day, Magistrate Commissioner Ad Hoc Hesni set her bail at $75,000 on one charge and at $50,000 on the other charge, for a total bail of $125,000. On Thursday, June 17th, in an ex parte proceeding, Criminal District Court Judge Frank Marullo (Section “D“), at the request of Amanda Neisler‘s counsel, reduced her bail to $10,000 on each charge, for a total bail of $20,000. On Friday, June 18th, at the assistant district attorney‘s request, Judge Marullo conducted a hearing at which the attorneys were present; after the hearing, Judge Marullo reinstated the original bail of $125,000.
On Tuesday, June 22nd, Magistrate Andrew Scambra conducted another bail hearing; after the hearing, Magistrate Scambra reduced Amanda Neisler‘s bail to $25,000 on each count, for a total bail of $50,000.3 On Wednesday, June 23rd, the district attorney‘s office, complaining of factual misrepresentation at the bail hearing the previous day, contacted Magistrate Scambra. Responding to these complaints, Magistrate Scambra reinstated the original bail of $125,000, and ordered that a contradictory hearing be held on June 29th. Meanwhile, on Thursday, June 24th, Judge Marullo again modified Amanda Neisler‘s bail, changing it to a $50,000 surety bond (i.e., bail through surety) and a $75,000 release on recognizance (i.e., bail without security). The latter ex parte ruling is the crux of the instant case.
Also on Thursday, June 24th, the Fourth Circuit granted the State‘s emergency writ application, and, based on its earlier Hall decision, vacated Judge Marullo‘s “bond reduction” order4 as unauthorized, and reinstated Magistrate Commissioner Ad Hoc Hesni‘s original bail of $125,000. The Fourth Circuit also held that “[a]ny further motions
We granted defendant‘s, Amanda Neisler‘s, writ application to address the correctness of the Fourth Circuit‘s decision. 629 So.2d 373 (La.1993).
MOOTNESS
The basic issue before us is whether Judge Marullo‘s modification of Amanda Neisler‘s bail initially set by Magistrate Commissioner Ad Hoc Hesni was unauthorized. Given that the district attorney later filed formal charges and that this case was allotted to a specific regular section of the court, the issue before us could be considered moot. Yet, this case presents a classic illustration of an issue “capable of repetition, yet evading review.”
That the issue is a recurring one is evidenced by the fact that in Hall the issue was raised in a writ application before us but became moot before we could consider it. More precisely, we denied writs in Hall because the district attorney‘s decision not to prosecute the defendant rendered the issue moot. State v. Hall, unpub. (No. 91-K-1375) (La.App. 4th Cir.) (July 26, 1991), writ denied, 588 So.2d 1114 (La.1991) (“Moot“).5
That the issue could permanently escape our consideration should we once again decline to consider it as moot is evidenced by the fact that the issue arises only during a small window of time between arrest and the district attorney‘s formal decision of whether to prosecute—a statutory maximum 60-day period in felony cases.6 Because that window of time is shorter than the ordinary appellate delay, the issue could permanently evade appellate review. State v. Lacour, 398 So.2d 1129, 1130-31 (La.1981) (collecting cases); Malek v. Yekani-Fard, 422 So.2d 1151, 1152 (La.1982).
In short, this case falls squarely within the ambit of the special exception permitting courts to consider moot issues that are capable of repetition, yet forever evading appellate review. Lacour, supra; State v. Eaton, 483 So.2d 651, 660-61 (La.App. 2d Cir.1986). We thus proceed to address the merits of the issue presented.
As the issue presented is confined specifically to the Orleans Parish Criminal District Court, we begin by outlining that court‘s organizational structure.
THE ORLEANS PARISH CRIMINAL DISTRICT COURT
There is “one Criminal District Court for the parish of Orleans, which shall be composed of ten judges.”
Generally, the operation of the criminal district court is outlined in Local Rule II, Section 1 of the Orleans Parish Criminal District Court, which provides:
There shall be ten Sections of the Court, which shall be known and designated as Sections A, B, C, D, E, F, G, H, I, J; and the Magistrate Section, which shall be presided
over by the Judges respectively elected or appointed, and by their successors in office. Each Judge shall be known and designated as the Judge of the Section over which he presides. There are four Commissioners who shall be appointed by the Judges of the Criminal District Court.
Particularly, the operation of the magistrate section is outlined by Local Rule IV, which provides:
Section 1. The Magistrate Section shall be composed of the Magistrate Judge and four Commissioners. The purpose of this Section of the Court is to provide every arrested person (hereinafter called defendant), who has been arrested under State Statute, prompt access to a committing Magistrate Commissioner who shall conduct a hearing within a reasonable time after a person has been arrested:
(a) To advise the defendant of the charges against him;
(b) To advise the defendant of his rights under the Constitution of the State of Louisiana;
(c) To appoint counsel for the proceedings in Magistrate Court if defendant is indigent;
(d) To set a date and time for a Preliminary Hearing to determine whether there is probable cause to believe that the defendant committed the offenses with which he is charged. The hearing shall be set on written motion by the Defendant or the District Attorney.
(e) To set bail upon request of a defendant.
Section 2. In order to perform these functions, the Magistrate Court shall be open seven days a week, twenty-four hours a day. (emphasis supplied).
In sum, the one criminal district court is comprised of (i) ten “regular” sections, designated as sections A through J, and each presided over by an elected district court judge; and (ii) a magistrate section, comprised of one elected magistrate judge and four appointed magistrate commissioners. The functions of each of the sections of the criminal district court are defined by the constitution and statutes as follows.
(i) The Regular District Court Sections:
The constitution vests district courts with “exclusive original jurisdiction of felony cases.”
The judges of the Criminal District Court for the Parish of Orleans shall have power to act as committing magistrates in all felony charges and to hold preliminary examinations, with authority to bail, or discharge, or to hold for trial, in all cases before said court. They also may adopt all necessary rules with respect thereto. (emphasis supplied).
(ii) The Magistrate Section:
[T]he additional judge created herein shall be known as the Magistrate and shall preside over the Magistrate Section. Said judge shall have jurisdiction to act as committing magistrate in felony and misdemeanor charges and to hold preliminary examinations, with the authority to bail or discharge, or to hold for trial, in all cases before the Criminal District Court for the Parish of Orleans, and shall have the power to adopt all necessary rules with respect hereto. (emphasis supplied).
Significantly, the underscored language in
The magistrate commissioners, while not judges, are vested with all the same powers, duties, jurisdiction and functions of the magistrate judge by
The [four] persons appointed to the offices of commissioner created by this Section shall be known as commissioners and shall not be judges, but shall have the same qualifications, powers, duties, jurisdiction, and functions, all as is now or hereafter provided for the judge in the magistrate section of said criminal district court.
As a result, the magistrate commissioners, like the magistrate judge, are statutorily vested with the same bail jurisdiction as are the regular judges.9
CONCURRENT JURISDICTION
Against that backdrop, we turn to the first question before us of whether a criminal district court judge can modify bail set by the magistrate section (i.e., the magistrate judge or a commissioner) before formal charges are filed and before the case is allotted to a specific regular section of the court. Answering this question in the negative, the Fourth Circuit held that the regular district court judge lacked jurisdiction and that the magistrate commissioner possessed exclusive jurisdiction to modify Amanda Neisler‘s bail. Contrary to the Fourth Circuit‘s conclusion, we find that this is not a question of jurisdiction, but rather of whether, either by statute or by local rule, the criminal district court judges’ authority over such bail matters has been limited.
We begin our analysis of this issue by finding concurrent jurisdiction exists among the regular criminal district court judges, the magistrate judge and the magistrate commissioners to modify bail. Our finding is based on the following three-step analysis.
First, identical jurisdiction over bail matters is vested statutorily in the criminal district court judges,
Given our finding that the regular district court judges, the magistrate judge and the magistrate commissioners share concurrent jurisdiction to modify bail, the question before us becomes whether the concurrent jurisdiction shared by these judicial officers is
The Fourth Circuit, in a series of mostly unpublished decisions beginning with its 1991 Hall decision, has held that
We find that the Fourth Circuit‘s construction of
A close analysis of the bail articles of the code of criminal procedure, in their current and prior form, reveals that the legislature crafted the pivotal phrase “court having trial jurisdiction over the offense charged” in
To illustrate,
Our construction of this phrase is reinforced by
In sum, contrary to the Fourth Circuit‘s holding in Hall and its progeny, we conclude that
RANDOM ALLOTMENT SYSTEM
When, as here, concurrent jurisdiction exists and multiple judicial officers of a single court possess the power to act on any given case, rules of court are necessary to allocate the cases among those judicial officers and to provide an orderly procedure for the handling of cases. Rules of court allocating cases within the jurisdiction of the criminal district court among the ten regular sections (A through J) and the magistrate section are contained in two local rules of the Orleans Parish Criminal District Court. First, Local Rule IV provides generally for the allotment of the initial setting of bail to the magistrate section, although it does not expressly preclude an initial setting of bail by a regular judge. Second, Local Rule V(A) provides for the allotment among the various regular sections of the court of “all felony indictments, felony informations and appeals from Municipal Court. This allotment shall be conducted by the Clerk and shall be open to the public. The District Attorney or an Assistant shall be notified of the allotment as to the date and the time.” See also
The local rules provide for allotment only at two fixed points in time: (i) the initial setting of bail to the magistrate section, and (2) in felony cases, after the filing of formal charges to the ten regular sections on a random basis. As a result, a window of time—ranging up to 60-days16—exists during which the rules are silent as to which judicial officer is responsible for bail matters,
This gap in the local rules creates two perceived problems: (1) “judge shopping“, and (2) ex parte bail modification proceedings. In separate attempts to cure these perceived problems, both the Fourth Circuit and the legislature acted in 1991. The legislature amended former
Regardless of the legal correctness of the Hall decision, that decision unquestionably represents an attempt by the Fourth Circuit to remedy the perceived problem of “judge shopping.” Yet, as Amicus (Louisiana Association of Criminal Defense Lawyers) aptly points out, the effect of the Fourth Circuit‘s Hall decision is to impose a local rule on the Orleans Parish Criminal District Court. While we find such a local rule is needed, we decline at this point to interfere with this matter of judicial administration committed to the sound discretion of the Orleans Parish Criminal District Court. Instead, we find this gap in the rules one that the criminal district court itself must resolve. For guidance purposes, we note that the criminal district court should, as a matter of internal procedure, adopt rules for the orderly handling of such preliminary bail matters. Stated otherwise, the criminal district court should implement some sort of random allocation system designed to prevent “judge-shopping” and the appearance of favoritism.
CONTRADICTORY HEARING REQUIREMENT
As noted at the outset, the second issue presented here is whether in Orleans Parish a contradictory hearing is mandated to change the type of security, as distinguished from increasing or decreasing the amount of bail. Although the Fourth Circuit did not reach this issue, it is clearly presented as Judge Marullo‘s ex parte ruling at issue did precisely that—changed the type of security, but not the amount of Amanda Neisler‘s bail.18
Resolution of this second issue hinges on the construction of the language legislatively added to former
While this statutory enactment undoubtedly was designed to resolve the potential problem mentioned above of ex parte bail modifications,
Our construction is consistent with the entire statutory scheme of the 1993 Bail Reform Act.
Our holding is strengthened by reading three other bail provisions in pari materia.
Applying our holding on this issue to the facts of the instant case, we conclude that because Judge Marullo modified Amanda Neisler‘s bail to change the type of security in an ex parte proceeding, the modification was unauthorized. We thus conclude that the Fourth Circuit reached the right result, but for the wrong reasons.
SUMMARY OF DECISION
To recapitulate, we hold that in Orleans Parish Criminal District Court: (1) the regular district court judges, the magistrate judge and the magistrate commissioners share concurrent jurisdiction both to fix and to modify bail; (2) the local rules, while providing generally for the initial setting of bail by the magistrate section (i.e., the magistrate judge or commissioners), are devoid of any provision for the subsequent modification of bail prior to the allotment of felony cases after formal charges are filed; as a result, any judge or commissioner has jurisdiction and authority to modify bail; (3) bail can be modified—that is, increased, decreased or changed in type—only after a contradictory hearing; and (4) rules should be adopted by the Orleans Parish Criminal District Court to implement an orderly system of allotment of bail matters so as to prevent the appearance of favoritism or judge-shopping by either the state or the defendant.
For the above reasons, we reverse the holding of the court of appeal that the magistrate who set the original bail retains exclusive jurisdiction to modify bail prior to the filing of formal charges and the allotment of a case to a specific section of the court, but affirm the judgment of the court of appeal that the modification of bail by a district judge was unauthorized for the reason that no contradictory hearing was held prior to the modification.
DENNIS, J., concurs in part, dissents in part, and assigns reasons.
DENNIS, Justice, concurring in part and dissenting in part.
I concur in my colleagues’ reversal of part of the court of appeal‘s judgment but respectfully dissent from their affirmance of the other part. Commissioners do not have the judicial power to grant bail; nor do magistrates, unless they are to be considered, in truth, as district judges. I disagree with the majority‘s conclusion that this court should not consider sua sponte the question of whether these officers have the power or the jurisdiction to grant bail.
A court‘s legal power and authority to hear and determine a particular class of actions or proceedings, that is, its jurisdiction over the subject matter of an action or proceeding, cannot be conferred by the consent of the parties; and a judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. See
Furthermore, this court has implicitly adopted the rule, expressly espoused by other courts, that an error which directly and adversely affects the interests of the public generally, as those interests are declared in the statutes or constitution of the state, is a fundamental error, which will be considered even though it was not properly raised by the parties before the appellate or supreme court. See, e.g., Williams v. Kushner, 549 So.2d 294 (La.1989); State v. Green, 493 So.2d 588 (La.1986); State v. Raymo, 419 So.2d 858 (La.1982). Cf. State v. Williamson, 389 So.2d 1328 (La.1980); State v. Smith, 367 So.2d 857 (La.1979). See Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L.Rev. 477, 503 (1958), citing and quoting, inter alia, Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979 (1947). See also Tate, Sua Sponte Consideration on Appeal, 9 Trial Judges’ Journal 68 (1970) (Pointing out the notable examples of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) and Kilberg v. Northeast Airlines, 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961)).
Article I, Section 18 of the 1974 Louisiana Constitution provides, in pertinent part, that “[b]efore and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great.” Thus, every person “shall be bailable,” i.e., has a right to bail, before and during trial in all cases, unless charged with a capital case in which the proof is evident and the presumption of guilt is great. Hargrave, Declaration of Rights, 35 La.L.Rev. 1,
After conviction and before sentencing, a person shall be bailable if the maximum sentence which may be imposed is imprisonment for five years or less; and the judge may grant bail if the maximum sentence which may be imposed is imprisonment exceeding five years. After sentencing and until final judgment, a person shall be bailable if the sentence actually imposed is five years or less; and the judge may grant bail if the sentence actually imposed exceeds imprisonment for five years. (Emphasis added)
The phrase “shall be bailable” indicates that the accused has the right to bail which cannot be taken away by legislative act and must be granted by a judge in accordance with the requirement that excessive bail not be required. Hargrave, supra at 59. In other cases, Article I, Section 18 provides that “the judge may grant bail,” thereby carving out an area of judicial discretion. Because the authority to grant bail, both obligatory and discretionary, is given directly to the judge, it is not within the power of the legislature to govern its exercise. Id. at 59. Furthermore, it is generally recognized that where the state constitution contains a guaranty of bail with certain exceptions, such as in capital cases in which the proof is evident, the legislature may not impose additional exceptions on the right. E.g., People v. Tinder, 19 Cal. 539 (Cal.1862); 8 Am.Jur.2d Bail and Recognizance § 24 (1980). Unlike the power to punish for contempt of court, which the constitution expressly provides may be limited within reason by law,
Article V, Section 1 of the 1974 Louisiana Constitution provides that “[t]he judicial power is vested in a supreme court, courts of appeal, district courts, and other courts authorized by this Article.” Article V does not expressly authorize the creation of magistrate or commissioner courts. Therefore, the commissioners created by the legislature do not have the authority to grant bail. Furthermore, the magistrate courts so created, unless they may be considered to be actually district courts under a different name, do not have the authority to grant bail. The power to grant bail is exclusively a judicial power granted to the judiciary by Article I, Section 18 and reserved for the judiciary by Article V, Section 1. There is no constitutional authorization extending the power to grant bail to non-judicial officers.
Because the supreme court has general supervisory jurisdiction over all other courts, and each court of appeal has supervisory jurisdiction over cases which arise within its district, however, the supreme and appeals courts may oversee the exercise of judicial powers in bail matters by the trial courts.