Caliste v. Cantrell, 18-30954

• Decision Date: 29 August 2019
• Docket Number: No. 18-30954,18-30954
• Citation: 937 F.3d 525
• Parties: Adrian CALISTE, individually and on behalf of all others similarly situated; Brian Gisclair, individually and on behalf of all others similarly situated, Plaintiffs - Appellees v. Harry E. CANTRELL, Magistrate Judge of Orleans Parish Criminal District Court, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

937 F.3d 525

Adrian CALISTE, individually and on behalf of all others similarly situated; Brian Gisclair, individually and on behalf of all others similarly situated, Plaintiffs - Appellees

v.Harry E. CANTRELL, Magistrate Judge of Orleans Parish Criminal District Court, Defendant - Appellant

No. 18-30954

United States Court of Appeals, Fifth Circuit.

FILED August 29, 2019

Eric Andrew Foley, James W. Craig, Katharine Murphy Schwartzmann, Esq., Roderick & Solange MacArthur Justice Center, New Orleans, LA, Alec George Karakatsanis, Esq., Civil Rights Corps, Washington, DC, for Plaintiffs - Appellees.

Dennis J. Phayer, Mindy Nunez Duffourc, Burglass & Tankersley, L.L.C., Metairie, LA, for Defendant - Appellant.

Jeff Rowes, Staff Attorney, Institute for Justice, Austin, TX, for Amicus Curiae Institute for Justice.

Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

"No man can be judge in his own case." Edward Coke, INSTITUTES OF THE LAWS OF ENGLAND , § 212, 141 (1628). That centuries-old maxim comes from Lord Coke's ruling that a judge could not be paid with the fines he imposed. Dr. Bonham's Case , 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610). Almost a century ago, the Supreme Court recognized that principle as part of the due process requirement of an impartial tribunal. Tumey v. Ohio , 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927).

This case does not involve a judge who receives money based on the decisions he makes. But the magistrate in the Orleans Parish Criminal District Court receives something almost as important: funding for various judicial expenses, most notably money to help pay for court reporters, judicial secretaries, and law clerks. What does this court funding depend on? The bail decisions the magistrate makes that determine whether a defendant obtains pretrial release. When a defendant has to buy a commercial surety bond, a portion of the bond's value goes to a fund for judges' expenses. So the more often the magistrate requires a secured money bond as a condition of release, the more money the court has to cover expenses. And the magistrate is a member of the committee that allocates those funds.

Arrestees argue that the magistrate's dual role—generator and administrator of court fees—creates a conflict of interest when the judge sets their bail. We decide whether this dual role violates due process.

I.

Judge Henry Cantrell is the magistrate for the Orleans Parish Criminal District Court. He presides over the initial appearances of all defendants in the parish, which encompasses New Orleans. At those hearings, there are typically 100–150 a week, Judge Cantrell appoints counsel for indigent defendants and sets conditions of pretrial release. One option for ensuring a defendant's appearance is requiring a secured money bond. Just about every defendant who meets that financial condition does so by purchasing a bond from a commercial surety, as that requires paying only a fraction of the bond amount.

When a defendant buys a commercial bail bond, the Criminal District Court makes money. Under Louisiana law, 1.8% of a commercial surety bond's value is deposited in the court's Judicial Expense Fund.¹ See LA. R.S. §§ 22:822(A)(2), (B)(3), 13:1381.5(B)(2)(a). That fund does not pay judges' salaries, but it pays salaries of staff, including secretaries, law clerks, and court reporters. It also pays for office supplies, travel, and other costs. The covered expenses are substantial, totaling more than a quarter million dollars per judge in recent years. The bond fees are a major funding source for the Judicial Expense Fund, contributing between 20–25% of the amount spent in recent years.² All 13 judges of the district court, including Judge Cantrell, administer the fund.

Judge Cantrell requires a secured money bond for about half of the arrestees. So it was not unusual when he imposed that condition for both Adrian Caliste and Brian Gisclair when they appeared before him on misdemeanor arrests. Nor was it uncommon when Judge Cantrell did not make findings about their ability to pay or determine if nonfinancial conditions could secure their appearance. It took over two weeks for Caliste to come up with the money to buy a bail bond, which cost about 12–13% of the $5,000 amount the court set (Caliste had two charges and bail was set at $2,500 per offense). Gisclair was never able to come up with the money and stayed in jail for over a month before being released.

While they were in custody, Caliste and Gisclair filed this federal civil rights lawsuit against Judge Cantrell. They sued on their own behalf and to represent a class of all arrestees "who are now before or who will come before" Judge Cantrell for pretrial release determinations and who cannot afford the financial conditions imposed.³ See FED. R. CIV. P. 23(b)(2).

The lawsuit challenges two aspects of Judge Cantrell's bail practices. First, the complaint alleges that he was violating the Due Process and Equal Protection Clauses by setting bond without inquiring into an arrestee's ability to pay or considering the adequacy of nonfinancial conditions of release. This, Plaintiffs contend, results in keeping people in jail only because of their inability to make a payment. The second allegation relates to Cantrell's "dual role as a judge determining conditions of pretrial release and as an executive in charge of managing the Court's finances." To plaintiffs, the financial incentive to require secured money bonds is a conflict of interest that deprives arrestees of their due process right to an impartial tribunal. For both claims, the plaintiffs sought only declaratory relief.

This appeal concerns only the conflict-of-interest claim. A year after the case was filed, Judge Cantrell told the district court that he had altered his bail practices to consider ability to pay and argued that this change mooted the first claim. The district court disagreed and granted a declaratory judgment on both claims. But Judge Cantrell appeals only the determination that his setting the bonds that help fund his court violates due process.

II.

Unlike some of its legal ancestors, English common law assumed that judges could maintain impartiality in the face of most connections to a case. See John P. Frank, Disqualification of Judges , 56 YALE L.J. 605, 609 (1947). It did not follow the path of Roman or Jewish law, both of which disqualified judges for a variety of reasons. See THE CODE OF JUSTINIAN 3.1.14 (S.P. Scott trans., 1932) (allowing litigants to "reject judges appointed to hear a case ... [e]ven when the judge was appointed by the Emperor, for the reason that We have set our hearts upon all suits being conducted without any suspicion of unfairness"); THE CODE OF MAIMONIDES, BOOK FOURTEEN: THE BOOK OF JUDGES , ch. 23, at 68–69 (Abraham M. Hershman, trans., Yale Univ. Press 1949) (requiring disqualification even when a party performed minor tasks for the judge such as removing a bird's feather from the judge's mantle or helping the judge get out of a boat when it reached shore). Though medieval England had those who suggested it should likewise recognize bias as a basis for recusal,⁴ by Blackstone's day the country had charted a different course:

[J]udges or justices cannot be challenged. For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.

3 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 361 (1768). Trust in the impartiality of judges was carried to extremes. Judges could even hear cases involving close family members. See Brookes v. Earl of Rivers , Hardres 503, 145 Eng. Rep. 569 (Ex. 1668) (allowing a judge to hear a case involving his brother-in-law).

But the common law view that judges were incorruptible had a notable exception—when judges might benefit financially. See Tumey v. Ohio , 273 U.S. 510, 525, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ("There was at the common law the greatest sensitiveness over the existence of any pecuniary interest however small or infinitesimal in the justice of the peace."). Lord Coke's famous line reflected that view, as did his ruling that a judge could not issue a judgment while also taking a portion of the fine to pay his salary. Dr. Bonham's Case , 8 Co. Rep. 107a, 118a, 77 Eng. Rep. 638, 652 (C.P. 1610). Similarly, a judge could not rule on an ejectment proceeding when he was the landlord. See, e.g., Anonymous , 1 Salkeld 396, 91 Eng. Rep. 343 (K.B. 1698); see also Earl of Derby's Case , 12 Co. Rep. 114, 77 Eng. Rep. 1390 (K.B. 1614). There was even concern that a judge's role as a citizen and a taxpayer in a town might be disqualifying, see Between the Parishes of Great Charte and Kennington , 2 Strange 1173, 93 Eng. Rep. 1107, 1107–08 (K.B. 1726) (quashing order of removal of pauper made by two justices of the peace because one "was an inhabitant of the parish from whence the pauper was removed"), until Parliament passed a law rejecting that notion in an early example of the "rule of necessity" that still applies to judicial recusal, see Frank, supra , at 610–11–. The common law thus distinguished between "bias," which did not disqualify the judge, and "interest," which did. Id. at 611–12.

After Independence, American law reflected the same concerns about a judge's financial interest in a case. James Madison recited Lord Coke's maxim in the Federalist Papers. THE FEDERALIST NO. 10, at 47 (James Madison) (Clinton Rossiter ed., 1961). Justices recused themselves from early Supreme Court cases when they had a financial interest in the result. Frank, supra , at 615 (citing Livingston v. Maryland Ins. Co. , 7 Cranch (11 U.S.) 506, 3 L.Ed. 421 (1813) ; Fairfax's Devisee v. Hunter's Lessee , 7 Cranch (11 U.S.) 603, 3 L.Ed. 453 (1812) ; Martin v. Hunter's Lessee , 1 Wheat. (14 U.S.) 304, 4 L.Ed. 97 (1816) ).⁵ But some nineteenth century state legislatures...