Bruno v. Hamilton
| Decision Date | 01 August 1975 |
| Docket Number | No. 74-1968,74-1968 |
| Parties | Dorothy BRUNO, Appellant, v. Hon. Calvin K. HAMILTON, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Charles C. Shafer, Kansas City, Mo., for appellant.
J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, LAY and HEANEY, Circuit Judges.
Fulltime Magistrate Calvin K. Hamilton disapproved a bond tendered by Dorothy Bruno on behalf of an unnamed criminal defendant and in connection therewith entered an order that he would no longer accept Mrs. Bruno as a surety on any bond tendered to him. Mrs. Bruno filed a motion for reinstatement as a qualified bondsman with the magistrate. An evidentiary hearing was granted, after which the magistrate filed a memorandum opinion finding Mrs. Bruno was not a suitable bondsman under Local Court Rule 21(d) of the Western District of Missouri. The order concludes as follows:
The undersigned is of the opinion that Dorothy Bruno, by: (a) her association with Felix Ferina, (b) her acceptance of the .38 caliber revolver from Azariah M. Bates, as security for a promissory note given in payment of the fee for the criminal appeal bond, with knowledge that he had been convicted of a felony, and (c) her failure to obtain the permit required by Section 564.630, RSMo, prior to receiving the .38 caliber revolver from Azariah M. Bates, has demonstrated that she is not a reputable person. Further, knowledge that Dorothy Bruno received the .38 caliber revolver, without complying with the law of the State of Missouri, from a person who had been found guilty of a felony as security for a promissory note given in payment of a fee for posting a criminal appeal bond, has caused the undersigned to lose confidence in her business integrity and the moral manner by which she carries out her business or undertakings. Therefore, the motion to reinstate Dorothy Bruno as a bondsman is denied and the undersigned will not accept her or the Bruno Bonding Company as a surety on any bail or other bond proferred to him.
Mrs. Bruno filed a timely notice of appeal to the district court from such disqualification order, filed exceptions to the magistrate's findings and order, and filed a petition for writ of mandamus ordering the magistrate to reinstate her as a bondsman.
Parenthetically, we note that no appeal has been taken from the order refusing to accept Mrs. Bruno as a bondsman for the unknown criminal defendant. The magistrate's disapproval of that particular bond is not here involved.
The trial court by final order filed October 14, 1974, determined it had no jurisdiction to review the magistrate's order. It treated the case as one for mandamus and dismissed the petition on the ground that under Local Rule 21 the magistrate acted within his discretion and that mandamus will not lie to compel a discretionary act.
Local Rule 21(b) and (c) sets forth the general qualifications for a bondsman, which Mrs. Bruno appears to have met. Mrs. Bruno had served as a bondsman in state and federal courts for many years. The magistrate's disqualification order is based on Local Rule 21(d) which reads:
(d) Bonds Surety. If any sureties, corporate or individual, or any agent, representative, servant, or employee thereof, conduct themselves or their business respecting the writing of bail, surety, or bonds of any type or character, so as to forfeit the confidence of this Court, or cause any Judge of this Court to lose confidence in the business integrity or moral manner by which they carry out their business or undertakings; the Court or Judge expressing any such loss of confidence may enter an order directing that such surety, agent, representative, or employee of a surety, be precluded from proffering bail, surety, or any other bonds to this Court.
The "moral manner" by which any surety, or its agent, representative, or employee will be measured, is whether, in the opinion of any Judge of this Court, the method of conducting its business will subject the Court to calumny in any manner whatsoever.
The magistrate urges that the district court lacks jurisdiction to review a magistrate's disqualification order. There appears to be no specific statutory proceeding for district court review of a magistrate's order in a case of this kind. However, Local Rule 26(B)(6) is set out in footnote 1 of Birdwell v. Ciccone, 490 F.2d 310, 311-312 (8th Cir. 1973). The rule in substance provides that the magistrate shall file a written report and recommendations and that there shall be a review de novo of any order or filing of a magistrate to which written exception is filed by a party within five days.
Plaintiff has appealed from the magistrate's order and filed exceptions to the magistrate's order. The district court does not discuss the applicability of Local Rule 26(B)(6) or any other pertinent local rule. We believe that the rule cited confers jurisdiction for district court review. In any event, we believe the...
To continue reading
Request your trial
-
Application and Affidavit For a Search Warrant, Matter of
...the decisions of its magistrates unless a statute or valid court rule empowers a magistrate to make a final decision. Bruno v. Hamilton, 521 F.2d 114, 116 (8th Cir.1975). A magistrate's power to seal or unseal a document derives from the district court's power to take such actions and the d......
-
U.S. v. Saunders
...Circuit has held that in most cases district courts have inherent power to review final decisions of magistrates. Bruno v. Hamilton, 521 F.2d 114, 116 (8th Cir. 1975). The Fifth Circuit in De la Torre did not consider whether such an inherent power existed, whether it applied there, or whet......
-
Baldwin Metals Co., Inc. v. Donovan
...Marshall, 592 F.2d 373 (7th Cir. 1979).3 29 U.S.C.A. § 657(a) (West 1975).4 See Weyerhaeuser, supra, 592 F.2d at 377; Bruno v. Hamilton, 521 F.2d 114, 116 (8th Cir. 1975).5 Baldwin claims that its representatives "strongly protested this invasion of Baldwin's constitutional rights and allow......
-
Jeno's v. Commissioner of Patents & Trademarks
...(2) Defendants' motion for summary judgment is granted. 1 Mandamus is not to be used as a substitute for appeal. Bruno v. Hamilton, 521 F.2d 114, 117 (8th Cir. 1975). 2 Plaintiff's memorandum in opposition to defendants' pending motion provided this Court a case which supports defendants' p......