Pugh v. Rainwater

Decision Date16 February 1973
Docket NumberCiv. No. 71-488.
PartiesRobert PUGH and Nathaniel Henderson, on their own behalf and on behalf of all others similarly situated et al., Plaintiffs, v. James RAINWATER et al., Defendants.
CourtU.S. District Court — Southern District of Florida

Bruce S. Rogow, Rene V. Murai, Miami, Fla., Phillip A. Hubbart, Public Defender of the Eleventh Judicial Circuit of Dade County, Miami, Fla., for plaintiffs.

Jack R. Blumenfeld, Asst. State's Atty., Miami, Fla., for defendant Gerstein.

Alan H. Rothstein, City Atty., Larry J. Hirsch, Asst. City Atty., Miami, Fla., for defendant Bernard E. Garmire.

Stuart Simon, County Atty., Alan T. Dimond, Asst. County Atty., Miami, Fla., for defendant E. Wilson Purdy.

Robert L. Shevin, Atty. Gen., State of Florida, Barry Scott Richard, Asst. Atty. Gen., Miami, Fla., for defendants Sutton, Rainwater, Snowden, Adair, Berkman, and Ferguson.

Joseph Pardo, Miami, Fla., for defendant Sidney L. Segall.

Joseph A. Wanick, City Atty., Henry A. Edgar, Jr., Asst. City Atty., Miami Beach, Fla., for defendant Rocky Pomerance.

Aaron A. Foosaner, Miami, Fla., for defendant Morton L. Perry.

Ralph F. Miles, Hialeah, Fla., for defendant David Maynard.

August, Nimkoff & Gladstone, Pearson & Josefsberg, Jepeway, Gassen & Jepeway, Miami, Fla., for amicus curiae, Dade County Bar Assn.

JAMES LAWRENCE KING, District Judge.

I HISTORY

This action brought almost two years ago by Florida prisoners held for trial without ever having received an impartial judicial determination of probable cause for their detention, now comes before the court for detailed findings on the extent to which present state practice falls short of meeting constitutional requirements. In an order of October 12, 1972, this court initially ruled that both the fourth amendment and the due process clause of the fourteenth amendment require a prompt hearing before a neutral and detached judicial officer for individuals held for trial solely upon an information filed by a single state attorney. Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971).

The court allowed defendants both before and after that ruling an opportunity voluntarily to bring Florida practice into compliance with basic constitutional standards. After this case was initiated on March 22, 1971, the court permitted the pre-trial schedule to be protracted in order that the 1971 Florida Legislature might have an opportunity to consider and act upon the issue. Likewise, the court's October 12 order postponed the question of implementation to provide all defendants 60 days within which to avail themselves of the opportunity to submit proposals concerning what sort of system for providing prompt preliminary hearings by an impartial judicial officer should be adopted in Dade County, Florida. The only proposal submitted in response to the court's mandate, (which came from defendant E. Wilson Purdy, Sheriff of Dade County) suggested the creation of a committing magistrate system.1 In the absence of alternative proposals, the Purdy Plan, as it came to be known, was substantially adopted on January 25, 1972, after careful deliberation by the court. Pugh v. Rainwater, 336 F.Supp. 490 (S.D.Fla. 1972).

Implementation of the Purdy Plan was delayed at the request of defendants for 90 days to permit adequate time for necessary administrative arrangements. State Attorney Gerstein's subsequent request that the court further delay compliance, pending completion of an appeal, was denied. The Fifth Circuit Court of Appeals granted the requested stay by order of March 31, 1972.

Despite the Fifth Circuit stay, Dade County judiciary officials moved voluntarily in the hiatus during appeal to establish their own plan for providing preliminary hearings. To effectuate this court's implementation order, a Committing Magistrate Rules Committee was formed by administrative order of Chief Judge Marshall C. Wiseheart of the Eleventh Judicial Circuit of Florida on March 13, 1972. After the stay had been issued, however, the work of the committee independently bore fruit as an administrative order of the Chief Judge created a committing magistrate system on April 15, 1972, which provided a limited right to a preliminary hearing. Although the requirements of the Dade County Magistrate System did not entirely conform with those of this court's order or those of the Purdy Plan, the differences are now moot in view of subsequent developments.2 In retrospect, it is only unfortunate that in spite of our efforts to secure alternative proposals, the court did not have the opportunity to consider the plan actually implemented.

The signal development, however, came with the issuance of Amended Rules of Criminal Procedure by the Florida Supreme Court on December 6, 1972. The Amended Rules, which took effect February 1, 1973, provide many of the safeguards contained in this court's plan of January 25, 1972, including provision for preliminary hearings under a committing magistrate system. The State Supreme Court has once again demonstrated that it is not blind to the continued violation of 40-year old state statutes requiring an arresting officer to take the defendant before a committing magistrate without unnecessary delay. Fla.Stat. §§ 901.06, 901.23 (1971), F.S.A. (originally enacted as Law of June 12, 1939, ch. 19554, §§ 6, 23, 1939 Fla. Laws 1300); see e. g. State ex rel. Carty v. Purdy, 240 So.2d 480 (Fla.1970); Milton v. Cochran, 147 So. 2d 137 (Fla.1962).

Upon hearing oral argument on October 18, 1972, in the appeal, the Fifth Circuit entered an order on October 24, vacating its stay of our January 25, 1972 order, directing this court to make specific findings on the constitutional deficiencies of present practice, and authorizing the implementation of the Purdy Plan.3 In accordance with that mandate, a hearing was set for November 16, 1972, but delayed at the request of defendants until January 18, 1973. On the basis of the presentations of the parties and amicus curiae Dade County Bar Association at that hearing, the following findings of fact and conclusions of law are hereby entered.

The parties agreed and stipulated to the premise, in which the court concurs, that the mandated assessment of present practices must concern itself with state procedures after February 1, 1973, under the Florida Rules of Criminal Procedure as now amended. The parties further agreed and stipulated that, so viewed, only four aspects of present practice differ from the court's plan of January 25, 1972, and remain to pose issues of constitutional dimension in this case.

II THE PRESENT PRACTICE WHICH PERMITS THE STATE ATTORNEY TO FILE AN INFORMATION AND OBVIATE THE REQUIREMENTS OF A DETERMINATION OF PROBABLE CAUSE BY A NEUTRAL AND DETACHED MAGISTRATE DIFFERS FROM THE COURT'S PLAN AND VIOLATES THE FOURTH AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

Rule 3.131(a) of the Florida Rules of Criminal Procedure, as amended, states:

"A defendant, unless charged on an information or indictment has the right to a preliminary hearing on any felony charge against him."

The Rule is consistent with the longstanding law of Florida. State ex rel. Hardy v. Blount, 261 So.2d 172 (Fla. 1972).

The validity of this practice, which permits the State Attorney to be the sole arbiter of probable cause, has always been the main issue in this case.

Not only does the present practice permit the State Attorney to block a preliminary hearing, it also allows him to overrule a determination of no probable cause made by a magistrate by refiling an information. Therefore the whole preliminary hearing system is really conditioned upon the desires of the State Attorney. If he files an information prior to the preliminary hearing, none will take place. If he files an information after a magistrate's detached and impartial determination of no probable cause, the accused may remain in jail until trial.

This practice cannot be reconciled with the constitutional requirements of the due process clause of the fourteenth amendment and the fourth amendment. The continuation of the practice is in clear conflict with the plan previously entered by the court and with the original decision of the court.

In addition to the cases relied upon in that decision, 332 F.Supp. at 1107 et seq., recent Supreme Court decisions confirm that the deprivation of liberty caused by the prosecuting attorney without any judicial review is unconstitutional. See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

III

THE PRESENT PRACTICE WHICH EXCLUDES MISDEMEANANTS FROM A PRELININARY HEARING DIFFERS FROM THE COURT'S PLAN AND VIOLATES THE FOURTH AMENDMENT AND THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE FOURTEENTH AMENDMENT.

Rule 3.131(a) of the Florida Rules of Criminal Procedure, as amended, authorizes hearings before a neutral and detached judicial officer only "on any felony charge." Thus, misdemeanants need not be afforded a preliminary hearing under the present practice, despite the fact that the preliminary hearing provisions of the amended rules provide the only guarantee of prompt determinations of probable cause. Consequently, the accused misdemeanant remains unprotected by present practices against deprivations of his liberty. As the court's original opinion made clear, this deprivation of liberty is particularly unjustifiable as a denial of due process for those misdemeanants who remain in custody without bond. Pugh v. Rainwater, 332 F.Supp. 1107 (S.D.Fla.1971); cf. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The court's plan to...

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