Broussard v. Parish of Orleans

• Decision Date: 10 January 2003
• Docket Number: No. 01-31408.,No. 01-31410.,01-31408.,01-31410.
• Citation: 318 F.3d 644
• Parties: Kayne BROUSSARD, etc.; et al., Plaintiffs, v. The PARISH OF ORLEANS, etc.; et al., Defendants. Leonard J. Dazet, Jr., and all those similarly situated; James Anthony McDaniel, and all those similarly situated, Plaintiffs-Appellants, v. M.J. Foster, etc.; et al., Defendants, Kenneth Goss, Sheriff of Acadia Parish; et al., Defendants-Appellees. Demico Perkins, and all those similarly situated, Plaintiff-Appellant, v. M.J. Foster, etc.; et al., Defendants, Charles C. Foti, Jr., Individually and in his official capacity as the Criminal Sheriff of Orleans Parish, State of Louisiana, Defendant-Appellee. Demico Perkins, and all those similarly situated, Plaintiff-Appellant, v. M.J. Foster, etc.; et al., Defendants, Edwin A. Lombard, In his official capacity as Clerk of Criminal District for the Parish of Orleans, State of Louisiana, The City of New Orleans, Defendants-Appellees. Kayne Broussard, etc.; et al., Plaintiffs, v. The Parish of Orleans, etc.; et al., Defendants. Demico Perkins, and all those similarly situated, Plaintiff-Appellant, v. M.J. Foster, etc.; et al., Defendants, Edwin A. Lombard, In his official capacity as Clerk of Criminal District for the Parish of Orleans, State of Louisiana, City of New Orleans, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

318 F.3d 644

Kayne BROUSSARD, etc.; et al., Plaintiffs, v. The PARISH OF ORLEANS, etc.; et al., Defendants.

Leonard J. Dazet, Jr., and all those similarly situated; James Anthony McDaniel, and all those similarly situated, Plaintiffs-Appellants, v. M.J. Foster, etc.; et al., Defendants, Kenneth Goss, Sheriff of Acadia Parish; et al., Defendants-Appellees.

Demico Perkins, and all those similarly situated, Plaintiff-Appellant, v. M.J. Foster, etc.; et al., Defendants, Charles C. Foti, Jr., Individually and in his official capacity as the Criminal Sheriff of Orleans Parish, State of Louisiana, Defendant-Appellee.

Demico Perkins, and all those similarly situated, Plaintiff-Appellant, v. M.J. Foster, etc.; et al., Defendants, Edwin A. Lombard, In his official capacity as Clerk of Criminal District for the Parish of Orleans, State of Louisiana, The City of New Orleans, Defendants-Appellees.

Kayne Broussard, etc.; et al., Plaintiffs, v. The Parish of Orleans, etc.; et al., Defendants.

Demico Perkins, and all those similarly situated, Plaintiff-Appellant, v. M.J. Foster, etc.; et al., Defendants, Edwin A. Lombard, In his official capacity as Clerk of Criminal District for the Parish of Orleans, State of Louisiana, City of New Orleans, Defendants-Appellees.

No. 01-31408.

No. 01-31410.

United States Court of Appeals, Fifth Circuit.

January 10, 2003.

Samuel S. Dalton, Law Offices of Samuel S. Dalton, Jefferson, LA, Jack L. Dveirin (argued), New Orleans, LA, for Plaintiffs-Appellants.

John F. Weeks, II (argued), Usry, Weeks & Matthews, New Orleans, LA, for Defendants-Appellees.

Julia Elizabeth Blewer, Cook, Yancey, King & Galloway, Shreveport, LA, for Deen, Hackabay and Prator.

Patrick B. McIntire, Oats & Hudson, Lafayette, LA, for Savoie.

Leu Anne Lester Greco, Greco & Greco, Baton Rouge, LA, for Litchfield.

Don Anthony Almerico, Law Office of Don Almerico, Luling, LA, John H. Musser, IV (argued), Law Office of John H. Musser, IV, New Orleans, LA, for Champagne.

Millard Darnell Collins, Cade, Collins & Gorbert, New Orleans, LA, for Lombard.

Annabelle H. Walker, Deputy City Atty., New Orleans, LA, for City of New Orleans.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WIENER and STEWART, Circuit Judges, and RESTANI,¹ Judge.

WIENER, Circuit Judge:

In this case, the Plaintiffs-Appellants ("arrestees"), are members of a state-wide group of persons arrested within one year prior to commencement of this suit. They now appeal the district court's rejection of their challenges to three Louisiana statutes, each of which requires payment of a fee as a prerequisite to release on bail. As we find that such fees are administrative charges reasonably related to the functioning of the bail-bond system, we affirm.

I. FACTS AND PROCEEDINGS

Plaintiffs-Appellants comprise three classes of arrestees who challenge three Louisiana statutes ("bail-fee statutes") that impose specified charges or fees when an arrested individual posts bail.² Each class is limited to individuals who were arrested within one year of filing suit. The Defendants-Appellees are the sheriffs of almost every Parish in Louisiana (collectively, the "sheriffs"), including the Sheriff of Orleans Parish ("Orleans Sheriff"), and the Clerk of the Criminal District Court for Orleans Parish ("Orleans Clerk").³

The following provisions are the challenged portions of the bail-fee statutes:

1. Section 1432(9) [hereinafter the "multi-sheriff statute"]:

The compensation, fees and costs allowed sheriffs, the parish of Orleans excepted, for all services in criminal matters, shall be the following:

9) For taking appearance bond when required to do so, fifteen dollars, unless suspended by a judge of the district court of the parish. A judge of a district court of the parish shall waive this fee if a defendant has been tried and found not guilty or if the charges against the defendant are dismissed.⁴

2. Sections 1520(3) and (6) [hereinafter "Orleans Sheriff statute"]:

The criminal sheriff of Orleans Parish shall collect from the parties, from witnesses, from sureties, and from sureties on bonds forfeited, the following fees and charges:

(3) For serving notice of arraignment or of trial on accused and surety, for each, and return, seven dollars;

(6) For taking appearance bond or recognizance bond when required to do so, fifteen dollars, unless suspended by the judges of the Criminal District Court of the Parish of Orleans.⁵

3. Section 1381(3) [hereinafter "Orleans Clerk statute"]:

The following charges may be made for the services of the clerk of the criminal district court:

(3) For filing and processing of appearance or witness bond, five dollars.⁶

The bail-fee statutes are among a more extensive group of statutes that provides for fees in a variety of situations. For instance, the Orleans Parish sheriff may charge twelve dollars "[f]or serving attachments to bring witnesses into court"⁷; sheriffs of other parishes may charge two dollars "[f]or each warrant executed outside of the parish"⁸; and the Orleans Clerk may charge two dollars "[f]or filing and recording [an] affidavit."⁹ Taken together, the entire group reveals that Louisiana has delegated to various parish officials a portion of the responsibility for covering the expenses that they incur while carrying out administrative tasks.

The bail-fee statutes, however, do not constitute the exclusive legislative attempt to collect money through or for the benefit of the bail-bond system. Section 1065.1 of Title 22 of the Louisiana Revised States imposes a two percent "fee on premium for all commercial surety underwriters who write criminal bail bonds in the state of Louisiana."¹⁰ This fee is distributed to the judicial court fund (25%), the sheriff's general fund (25%), the district attorney's operating fund (25%), and the Indigent Defenders Program (25%).¹¹ This provision, in fact, was enacted contemporaneously with the repeal of similar but piecemeal legislation,¹² and as a result constitutes "the exclusive fee or tax on any criminal bail-bond premium."¹³ Finally, the Louisiana Legislature has provided for the distribution of bond forfeiture amounts from district courts, parish courts, and city courts to some parish sheriffs around the state.¹⁴ In total, sheriffs receive funds to support the bail-bond system from (1) a tax on bondsmen (which the bondsmen likely pass on to arrestees), (2) fees imposed by the bail-fee statutes at issue here, and, for some sheriffs, (3) bond forfeitures.

In the district court, arrestees invoked 42 U.S.C. § 1983 to challenge the constitutionality of the bail-fee statutes under the Fourth, Eighth and Fourteenth Amendments, both facially and as applied. As matters outside the pleadings were presented to the district court, it converted the sheriffs' motion for judgment on the pleadings into a motion for summary judgment, then rejected all of arrestees' claims.

On appeal, the crux of arrestees' argument is the same as it was before the district court: An arrested person should not have to pay a statutory fee to the parish sheriff or clerk over and above the amount of bail they are required to post. First, and most significantly, they rely on Augustus v. Roemer to argue that an arrestee has a fundamental right "not to be deprived of or unreasonably inhibited from exercising [bail] once it has been favorably determined."¹⁵ As a result, insist arrestees, the government must have a compelling interest to restrict that right. Imposing a monetary charge for the purpose of raising revenue, they assert, is not an adequate compelling interest. This fundamental-rights contention also provides a foundation for arrestees' equal protection and procedural due process claims.

Second, arrestees insist that charging bail-bond fees is akin to imposing costs of prosecution on an acquitted defendant. Third, they contend that the statutes are void on vagueness grounds because different sheriffs charge fees in differing amounts and maintain inadequate, ambiguous refund procedures. Fourth, arrestees assert that the bail-fee statutes tempt sheriffs to stack charges so as to fill their departments' coffers. This temptation, claim the arrestees, violates their procedural due process rights to "an impartial determination of the number of bookings." Fifth, they contend that these fees constitute excessive fines under the Eighth Amendment. Finally, they argue that charging a fee to exercise bail constitutes an unreasonable seizure of their person and property under the Fourth Amendment.¹⁶

In contrast, the sheriffs contend that the outcome of this case, at least with regard to the multi-sheriff statute, § 1432(9), is governed by our holding in Enlow v. Tishomingo County.¹⁷ At issue in that case was a bail-fee statute that was quite similar to the one challenged here. The district court in Enlow rejected a procedural due process challenge to that statute's constitutionality, and we summarily affirmed the district court, concluding on the basis of our review of the briefs and record that the opinion was "well reasoned and [the case] correctly decided."¹⁸ The sheriffs contend that the only difference between the Mississippi statute and Louisiana's bail-fee statute is that the Mississippi bail fee was calculated as a percentage of the bond, and the statewide Louisiana bail-fee statute assesses a fixed charge of fifteen dollars. This difference, they insist, is not material.

The sheriffs also deny that there is any fundamental right to free bail access, and rely on Schilb v. Kuebel to argue that the bail-fee statutes merely authorize valid administrative fees to support the bail-bond system.¹⁹ As the statutes charge only administrative fees to defray the costs of the bail-bond system, continue the sheriffs, such fees do not impermissibly impose court costs; and for the same reason, such fees cannot violate the excessive fines clause of the Eighth Amendment....