Mounkes v. Conklin

Decision Date12 February 1996
Docket NumberNo. 95-4143-SAC.,95-4143-SAC.
Citation922 F. Supp. 1501
PartiesCalvin C. MOUNKES, et al., Plaintiffs, v. Hon. Thomas CONKLIN, et al., Defendants.
CourtU.S. District Court — District of Kansas




Michael F. Brunton, Topeka, KS, for plaintiffs.

Kevin D. Case, Office of the Attorney General, Kansas Judicial Center, Topeka, KS, for defendants.


CROW, District Judge.

The plaintiffs bring this action pursuant to 42 U.S.C. § 1983. They allege that the bail bond system authorized by the Kansas Supreme Court Administrative Order No. 96 ("Order 96") and the Third Judicial District Court Rule 3.311 ("DCR 3.311") deprives them of constitutional rights to procedural and substantive due process, equal protection under the law and freedom from excessive bail. The plaintiffs seek a federal court order declaring Order 96 and DCR 3.311 illegal and void under the federal and state constitutions and enjoining the defendant judges of the Third Judicial District and the defendant justices of the Kansas Supreme Court from enforcing this order and rule.

The defendants jointly move to dismiss the plaintiffs' action. (Dk. 11). They argue the court lacks subject matter jurisdiction to review any final judgments entered in the criminal cases against the plaintiffs. They also argue that the federal court should abstain from intervening in the pending state criminal cases against the plaintiffs.


When defendants bring a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the plaintiffs must carry the burden of proving jurisdiction. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992); Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir.1990). In deciding a Rule 12(b)(1) motion, the court may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.1Cizek v. United States, 953 F.2d 1232, 1233 (10th Cir.1992); Jensen v. Johnson County Youth Baseball League, 838 F.Supp. 1437, 1440 (D.Kan.1993). The defendants here limit their motion to a facial challenge to the sufficiency of the plaintiffs' complaint. On such motions, the court accepts the well-pleaded material allegations as true and construes them to favor the plaintiff. See United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994).

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993).

On a Rule 12(b)(6) motion, the court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983) (footnote omitted). "If the facts narrated by the plaintiff `do not at least outline or adumbrate' a viable claim, his complaint cannot pass Rule 12(b)(6) muster." Gooley v. Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir.1988) (quoting Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984)). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir.1989).

When a defendant seeks dismissal under Rule 12(b)(1) and 12(b)(6) in the alternative, the court must decide first the 12(b)(1) motion for the 12(b)(6) challenge would be moot if the court lacked subject matter jurisdiction. Moir, 895 F.2d at 269.


Between May and July in 1995, all eight federal plaintiffs were arrested on state criminal charges filed in Shawnee County, Kansas. Three of the plaintiffs were arrested on more than one criminal case. There were thirteen state criminal cases pending against the eight plaintiffs when this civil rights complaint was filed in federal district court. Bail bond was offered in each of the thirteen cases.

In four of the thirteen cases, surety bonds, ranging in amounts between $250 and $500, were specified as the bail bond. In another four cases, own recognizance cash deposit ("OR-cash deposit") bonds, ranging in amounts between $500 and $5,000, were set. In the remaining five cases, cash bonds, ranging in amounts between $100 and $2,500, were specified. Of the thirteen cases, the plaintiffs allege that only Darlene Washington was unable to meet the bond requirements and was still incarcerated as of August 3, 1995. Washington was offered a $2,500 cash bond. The plaintiffs further allege that in five of the nine cases in which OR-cash deposit bonds or cash bonds were set, the plaintiffs were required to post the money themselves without the aid of sureties or family members.

What the plaintiffs do not allege is also important to note. They do not mention whether they ever sought or requested modification of the bonds set. Nor do they say whether they ever challenged the constitutionality of the administrative order and local rule in the original proceedings or in a separate habeas corpus action. Finally, the plaintiffs do not allege the particular status or posture of the different criminal cases.

ORDER 96 AND DCR 3.311

In January of 1995, the Kansas Supreme Court issued its administrative Order 96 that offered an "own recognizance-cash deposit" ("OR-cash deposit") pretrial release program to all state judicial districts. For those judicial districts already using such a program, the court ordered them to adopt a local rule that substantially complied with the "example" which the court attached to Order 96. For those judicial districts not using such a program, the court authorized them to adopt such a rule whenever the judges of a district determined they should. The second paragraph to Order 96 plainly states that the OR-cash deposit pretrial release program would serve simply as one more means for pretrial release to those currently available by Kansas statute.2

On March 12, 1995, the Third Judicial District of Kansas adopted DCR 3.311, as its local rule counterpart to the example provided by the Kansas Supreme Court in Order 96. There are several material provisions to this rule. It includes an automatic bond schedule ("ABS") which sets the amount of bail bonds for certain offenses. The rule authorizes certain officers of the court who are sworn in as deputy clerks of the district court to permit persons in custody to post bonds in accordance with the rule. If the person in custody is not eligible for an ABS bond, then the person is to be brought before a judge for the setting of a bond. The rule generally outlines the various criteria relevant in considering the kind and amount of bail bond. The rule authorizes OR-cash deposit bonds on these conditions:

7. ... Any person determined eligible to be admitted bail on an OR-cash deposit bond under this rule or OR bonds set as OR cash deposit by a district judge, shall deposit with the clerk of the court cash equal to 10 percent of the amount of the bond and execute a bail bond in the total amount of the bond. All other conditions of the bond set by the court and this rule must be satisfied.
8. ... The cash deposit shall be held by the Clerk of the Court until such time as the accused has fully performed all conditions of the bond and is discharged from all appearance and financial obligations to the court. When an accused has been so discharged, 90% of the cash deposit shall be returned to the accused upon surrender of the cash deposit receipt previously issued by the Clerk. Ten percent of the cash deposit shall be retained by the Clerk as an administrative fee.
9. A cash receipt for an OR-Cash deposit bail bond shall be issued only to the person being released on bond. Any person posting cash for another person shall be informed that any cash posted as a bail bond is the property of the accused person and may be subject to forfeiture, application to payment of court ordered financial obligations and will be refunded only to the arrested person. Any arrangements to furnish bond money are between the lender and the accused person.
10. When an accused person who has posted a cash deposit bail bond is discharged from all appearance and financial obligations to the court and files the receipt for the cash deposit with the Clerk, the refundable portion of the cash deposit not allocated to court ordered financial obligations shall be refunded to the accused or assignee by the Clerk.
13. All bail bonds issued in this judicial district are subject to this rule and the

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