Bloss v. People of State of Michigan

• Decision Date: 17 February 1970
• Docket Number: No. 19554.,19554.
• Citation: 421 F.2d 903
• Parties: Floyd BLOSS, Plaintiff-Appellee, v. PEOPLE OF the STATE OF MICHIGAN, James K. Miller and Ronald Parsons, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

421 F.2d 903 (1970)

Floyd BLOSS, Plaintiff-Appellee, v. PEOPLE OF the STATE OF MICHIGAN, James K. Miller and Ronald Parsons, Defendants-Appellants.

No. 19554.

United States Court of Appeals, Sixth Circuit.

February 17, 1970.

S. J. Venema, Grandville, Mich., for defendants-appellants.

John W. Piggott, Bay City, Mich., for plaintiff-appellee.

Before EDWARDS, CELEBREZZE and COMBS, Circuit Judges.

PER CURIAM.

The State of Michigan appeals from an order of the United States District Court for the Western District of Michigan granting bail to plaintiff-appellee pending his appeals in the state courts of Michigan from three state criminal convictions.

During the year 1968 petitioner was charged with three separate offenses and convicted in three separate trials for violations of a Michigan statute (M. S.A. § 28.575(1) (Supp.1969) ) Comp. Laws 1948, § 750.343a, Pub.Acts 1964, No. 143 prohibiting sale of obscene literature. He was sentenced on each conviction in the Circuit Court for Kent County to three terms of nine months in jail, to be served concurrently.

At trial and on appeal he contended, and contends, that the statute concerned is unconstitutional under the First Amendment to the United States Constitution both on its face and as applied to him. The merits of this appeal are, however, not before us. Our appellate issue pertains only to appellee's claim of a right to bail pending appeal of his convictions. The rest of the relevant facts on this issue are set forth as follows in appellee's petition and admitted by appellant:

"In each of the three aforementioned cases Petitioner had been released on bond pending trial, bond having been posted in the sum of One Thousand ($1,000.00) Dollars; that after the convictions in the first two cases bond was continued and following the second conviction the said Petitioner was allowed to leave the State for a period of one month and go to the Western part of the country on vacation; that on October 18, 1968, when sentence was imposed, motions for stay of execution of sentence and for release on bail pending appeal were summarily denied by each of the sentencing judges; * * *.

"Following the aforesaid denial of the Stay and Bail Pending Appeal in the Circuit Court, a similar application for Stay and Bail Pending Appeal was filed in each of the three cases in the Court of Appeals for the State of Michigan and each denied by the Court of Appeals on the basis of `the repetitive history of the violation of the obscenity laws of the State of Michigan by the Defendant\' * * *.

"Thereafter a similar Application for Stay of Execution and Bail Pending Appeal was made to the Supreme Court of the State of Michigan and denied, Justice Thomas Kavanaugh dissenting; the grounds of the majority opinion were that: `no sufficient justification appears and the determination of the Court of Appeals is not clearly erroneous.\'

"The dissenting judge indicated:

"`Believing that reasonable bail should be granted, Kavanaugh Justice dissents.\'

"Thereafter the Petitioner applied to Mr. Justice Potter Stewart, Associate Justice of the Supreme Court of the United States and Circuit Justice for the Sixth Circuit, for similar Stay of Judgment of Conviction and Bail Pending Review which said application was referred by Justice Potter Stewart to the full court on December 9, 1968, and said application denied without opinion.

"Thereafter an application for Writ of Habeas Corpus was filed with the Michigan Supreme Court and denied, the Court stating:

"`On order of the Court the emergency Petition for Writ of Habeas Corpus is considered and treated as an emergency application for admission to bail pending appeal. So considered, the petition is denied. See our order dated November 19, 1968, Justice O\'Hara not participating.\'

* * * That thereafter an application was filed with the Hon. Potter Stewart, Associate Justice, Supreme Court, for bond pending filing Writ of Certiorari in the United States Supreme Court from a denial of the motion filed in the Michigan Supreme Court which said application filed with said Potter Stewart was denied, no reason being given; that thereafter an application for rehearing was filed with the Trial Courts asking the Courts to reconsider the matter and to take testimony so that a record could be made as to the reason for denying bail, which said motions were summarily denied; that Petitioner has diligently, through his attorney, pursued his appellate rights and has filed his record and brief on appeal in two of the three convictions referred to herein and is presently awaiting the transcript in connection with the third conviction.

"As a result of all of the aforesaid, Petitioner has already remained in jail for a period of over five months of the nine month sentence pending appeal from the judgments of conviction rendered against him."

After the proceedings detailed above, petitioner then filed a petition for writ of habeas corpus in the United States District Court for the Western District of Michigan, asserting a violation of a federal constitutional right in the order revoking bail. This case was heard before two United States District Judges. In a brief oral opinion, without citing what federal constitutional right was violated, the two judges granted the petition for writ of habeas corpus. Petitioner was released, with two months of his nine-month term still to be served. The State of Michigan appeals.

Michigan's Constitution and its statutory and case law provide for bail as a matter of right prior to conviction. Mich.Const. art. I, § 15 (1963); Mich. Stat.Ann. §§ 28.892, 28.893, 28.894 (1954) Comp.Laws 1948, §§ 765.5-765.7.

Bail after conviction and pending appeal is regarded as discretionary. In re Colacasides, 6 Mich.App. 298, 148 N.W.2d 898 (1967); People v. Giacalone, 16 Mich.App. 352, 167 N.W.2d 871 (1969).

The reasoning of the Michigan courts in denying bail to this petitioner is set out in the opinion of the Michigan Court of Appeals:

"In this cause a motion for a stay of execution and admission to bail having been filed by the defendant, and an answer thereto having been filed by the People and a reply by the defendant, and it having been brought to the attention of this Court that on June 24, 1966, the defendant was convicted in Kent County of possessing and exhibiting obscene motion pictures, that on May 9, 1968, the defendant was convicted in the County of Jackson, State of Michigan, for the sale and possession of obscene material and that the motion in the present case is filed in conjunction with two other cases in which the defendant has been found guilty of the sale and possession of obscene material in Kent County, and due consideration thereof having been had by the Court;

"IT IS ORDERED that the motion for stay of execution and setting of bond be, and the same hereby is, DENIED, due to the repetitive history of the violation of the obscenity laws of the State of Michigan by defendant. It is the opinion of this Court that the trial judge did not abuse his discretion by refusing to grant the defendant a stay of execution and bond pending appeal."

The right to bail under the Eighth Amendment to the United States Constitution prior to conviction is not absolute. Mastrian v. Hedman, 326 F.2d 708 (8th Cir.), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1964); United States ex rel. Fink v. Heyd, 287 F.Supp. 716 (E.D.La.1968), aff'd, 408 F.2d 7 (5th Cir. 1969). See also the Bail Reform Act of 1966, 18 U. S.C. §§ 3146-3152 (Supp. IV, 1965-68), which is applicable only to federal prisoners; Ballou v. Massachusetts, 382 F. 2d 292 (1st Cir. 1967); United States ex rel. Brown v. Fogel, 395 F.2d 291 (4th Cir. 1968); 2 U.S.C.Cong. & Ad. News, p. 2295 (1966).

As we have previously noted,...