Mudd v. Busse

• Decision Date: 08 September 1977
• Docket Number: Civ. No. F 75-12.
• Citation: 437 F. Supp. 505
• Parties: Kevin C. MUDD et al., Plaintiffs, v. Hermann F. BUSSE, Defendant.
• Court: U.S. District Court — Northern District of Indiana

437 F. Supp. 505

Kevin C. MUDD et al., Plaintiffs, v. Hermann F. BUSSE, Defendant.

Civ. No. F 75-12.

United States District Court, N. D. Indiana, Fort Wayne Division.

September 8, 1977.

COPYRIGHT MATERIAL OMITTED

Ivan E. Bodensteiner, Valparaiso, Ind., Joseph J. Levin, Jr., Morris S. Dees, Jr., Montgomery, Ala., Richard C. VerWiebe, Fort Wayne, Ind., for plaintiffs.

Stephen D. Long, Fort Wayne, Ind., Arthur M. Small, Deputy Atty. Gen., Darrel K. Diamond, Asst. Atty. Gen., Indianapolis, Ind., for defendant.

MEMORANDUM OF DECISION AND ORDER

ESCHBACH, Chief Judge.

This cause is now before the court for a reconsideration of defendant Hermann F. Busse's motion to dismiss this action on the ground that a dismissal is warranted under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny. In a previous order entered on August 12, 1975, the court denied the defendant's motion.¹ Having taken judicial notice of recent decisions in this area of the law, the court directed the parties to submit briefs on the question of whether the doctrine as enunciated by recent cases warrants dismissal of this cause at this time. Both parties have submitted briefs. The defendant, represented by the Attorney General of the State of Indiana,² again urges dismissal. For the reasons set forth below, defendant's motion to dismiss will be granted.

FACTUAL BACKGROUND

This action is brought by named plaintiffs Kevin Mudd and Jerry Whitlow who allege in the complaint filed on January 22, 1975 that they are pre-trial detainees incarcerated prior to trial pursuant to an order setting bail of the defendant Hermann F. Busse, Judge of the Circuit Court of Allen County, Indiana. Plaintiffs Mudd and Whitlow sought to maintain this action as a class action. In the order entered on August 12, 1975, 68 F.R.D. 522, the court conditionally certified a plaintiff class under Rule 23(b)(2), Fed.R.Civ.P., consisting of "all pre-trial detainees who, pursuant to order of the defendant Busse setting bail, are or will be incarcerated prior to trial because of financial inability to pledge resources sufficient to secure their release." Plaintiffs also originally sought to maintain this action as a class action against a defendant class represented by the named defendant Busse and defined as "all judicial officers in the State of Indiana who have, who are or who will deny release to individuals charged with a criminal offense prior to conviction solely on the basis of their inability to post bond." The court has denied plaintiffs' motion to certify that class. Mudd v. Busse, supra, 68 F.R.D., at 526-30. Consequently, the only defendant in this action is defendant Busse.

Plaintiffs' complaint purports to state a claim under 42 U.S.C. § 1983 as well as claims directly under the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. They assert that Indiana's money bail system as implemented by the defendant constitutes invidious discrimination against indigent accused persons in the plaintiff class in violation of the equal protection clause of the Fourteenth Amendment. They argue that the system as implemented establishes a classification based on wealth and constitutes a "drastic" interference with plaintiffs' fundamental right of personal liberty and their Eighth Amendment right to be free from excessive bail. While they admit that the State has a compelling interest in securing appearance at trial, they argue that the present system does not substantially relate to this objective and does not use the least restrictive means to effectuate its objective. Given the classification which plaintiffs allege the system establishes and the rights which it infringes upon, plaintiffs contend it therefore violates their right to equal protection of the laws. They also assert that the defendant's practices in setting bail violate their constitutional guarantee of due process of law. They argue that the procedures utilized by defendant Busse for setting bail are inadequate to protect the liberty interest at stake.

At the beginning of each term, defendant Busse adopts a master bond schedule in accordance with Ind.Code § 35-1-17-5(a) (Burns Supp.1976).³ Plaintiffs allege that defendant Busse initially sets bail pursuant to that schedule and that the amount depends solely on the nature and severity of the offense charged. The defendant does not utilize any of the services of the "own recognizance" program operated by the Bail Services Project of the Allen County Superior Court. The Superior and Circuit Courts of Allen County, Indiana, have concurrent jurisdiction of all felony charges filed in Allen County. In essence, plaintiffs seek to compel defendant Busse to adopt certain of the practices and procedures of the Bail Services Project as well as certain of those suggested in ABA Standards, Pretrial Release (Approved Draft 1968) on the ground that these practices and procedures are constitutionally mandated.

In their complaint, plaintiffs seek a declaratory judgment to the effect that the bail practices of the defendant which have the effect of denying pre-trial release to indigents solely because of their inability to buy their freedom violate the Fourth, Eighth and Fourteenth Amendments. The relief they seek, while broadly phrased in the complaint, is inextricably bound up with the specific constitutional objections they make to defendant Busse's practices and procedures. This is manifest in the Pretrial Order filed on April 4, 1977 and plaintiffs' motion for summary judgment filed on May 16, 1977. The relief sought therein includes a declaratory judgment declaring the defendant's bail practices unconstitutional insofar as they (1) establish a classification based on ability to purchase pre-trial release; (2) fail to individually determine the least restrictive means of reasonably assuring appearance in court; and (3) fail to provide procedural safeguards mandated by due process. They also seek a permanent injunction requiring the defendant to individually consider each person charged with a crime in his court and to attempt to determine the least restrictive means of pretrial release. In making the determination of least restrictive means, they seek to compel him to consider all factors relating to the accused's likelihood to appear, including such factors as the accused's record of appearance, his financial resources, his family ties, employment, length of residence in the community, and the nature and circumstances of the offense charged. Consonant with their claim that equal protection demands that the least restrictive means of assuring presence at trial be used, they seek to compel Judge Busse to consider the following alternative forms of release in the order listed: (1) personal recognizance, (2) personal recognizance with non-monetary conditions, (3) release upon the execution of an unsecured appearance bond, (4) release on monetary bail with the accused having the option of posting ten per cent (10%) of the bail amount with the court clerk, with that deposit returnable upon performance. To cure the alleged due process deficiencies, plaintiffs ask the court to order Judge Busse to follow certain procedures. The procedures relate to and are designed to implement the equal protection remedies. First, they seek an informal hearing upon arrest for each accused where an initial determination of the least restrictive means of release will be made and the accused immediately released upon meeting those conditions. Second, if the accused is not released pursuant to the informal hearing, they argue that due process requires a formal hearing within twenty-four (24) hours of arrest to determine individually the least restrictive means of assuring presence at trial. Plaintiffs assert that at the hearing, the burden must be on the State to demonstrate the need for conditions of release more stringent than personal recognizance. If Judge Busse determines that other than personal recognizance is required, then plaintiffs contend he must give a written statement of reasons with supporting findings of fact.

THE YOUNGER DOCTRINE

In Younger v. Harris, supra, and Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), the Supreme Court examined and set forth basic standards delineating the proper role of a federal court, in a case pending before it and otherwise within its jurisdiction, when litigation between the same parties and raising the same issues is or apparently soon will be pending in a state court. In Younger, the Court ruled that the Federal District Court should issue neither a declaratory judgment nor an injunction but should dismiss the case where the already pending state proceeding was a criminal prosecution and the federal plaintiff sought to invalidate the statute under which the state prosecution was brought. The "vital consideration" underlying the Younger doctrine of nonintervention was the "notion of comity" reflecting basic concerns of federalism. That notion counsels against interference by federal courts with legitimate state functions, particularly with the operation of state courts. Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 1916, 52 L.Ed.2d 486 (1977).

In addressing a Younger issue, the court must engage in a two-step analysis. First, it must determine if the Younger principles of comity and federalism apply. To make that determination, the court must identify the pending state proceedings, if any, that will be interfered with. Once those proceedings have been identified, the court must determine whether the State's interest in those proceedings and the process of which they are a part is sufficiently strong to invoke the principles of comity and federalism.

Once the principles of comity and federalism have been invoked, the court must determine whether classic equitable principles as applied in this context still mandate relief. That is, the...