Parker v. Roth

• Decision Date: 03 April 1979
• Docket Number: No. 42561,42561
• Citation: 278 N.W.2d 106,202 Neb. 850
• Parties: Terry G. PARKER, Appellant, v. Richard ROTH, Sheriff of Douglas County, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 106

278 N.W.2d 106

202 Neb. 850

Terry G. PARKER, Appellant, v. Richard ROTH, Sheriff of Douglas County, Nebraska, Appellee.

No. 42561.

Supreme Court of Nebraska.

April 3, 1979.

Syllabus by the Court

1. Neither the Eighth Amendment nor the Fourteenth Amendment to the Constitution of the United States requires that everyone charged with a state offense must be given his liberty on bail pending trial. While it is inherent in our American concept of liberty that a right to bail shall generally exist, this has never been held to mean that a state must make every criminal offense subject to such a right or that the right provided as to offenses made subject to bail must be so administered that every accused will always be able to secure his liberty pending trial.

2. One's right to life, liberty, and property and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Nor can a citizen's constitutional rights be infringed simply because a majority of the people choose that it be.

3. It is incumbent upon the Supreme Court, when reasonably possible and consistent with constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality. If possible, a statute should be construed in such a way as to negative any constitutional infirmity. State laws are accorded a presumption of constitutionality.

4. The traditional standard of review of state law under the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States requires only that the state law be shown to bear some rational relationship to legitimate state purposes. It is enough that the state's action be rationally based and free from invidious discrimination.

5. There are two recognized tests to review state action as it relates to the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. If the matter involved is a "fundamental right" guaranteed by the Constitution of the United States, the courts will engage in a strict judicial scrutiny of the act in question. If the state action under examination is not such a fundamental right, the court examines the matter in question to determine that there is a rational basis for the classification which does not involve a suspect class.

6. The right to bail is not a fundamental right guaranteed under the Constitution of the United States, and does not require a court to engage in a strict judicial scrutiny of a state action denying the right to bail in a particular case.

7. It is not the province of a court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. If there are to be such fundamental rights, they must be found either explicitly or implicitly guaranteed by the Constitution.

8. Article I, section 9, of the Constitution of the State of Nebraska does not prohibit the right to bail to every individual charged with a sexual offense involving penetration by force or against the will of the victim. In order for one so charged to be ineligible for bail, it must appear to the trial court that either the proof of the charge is evident or the presumption is great. In any instance in which the court is not convinced that either the proof is evident or the presumption great, then the court is not prohibited from granting bail to one so charged.

9. Presumption of innocence is a recognition under American jurisprudence that one charged with the commission of a crime is presumed innocent until proven guilty beyond a reasonable doubt. A defendant may rely upon the presumption and require the state to prove (1) that he committed the act charged; and (2) his legal culpability, if that is also an issue.

10. The question of whether a defendant is released on bail pending trial is of no relevance to the "presumption of innocence." One charged with a crime, whether it is bailable or not, enjoys a presumption of innocence.

11. Detention is a usual feature of every case of arrest on a criminal charge even when an innocent person is wrongfully accused; but it is not imprisonment in a legal sense, nor does it constitute punishment, and therefore is not cruel and unusual punishment in violation of the Constitution of the United States.

Thomas M. Kenney, Bennett G. Hornstein, Omaha, for appellant.

Donald L. Knowles, Douglas County Atty., Rockford G. Meyer, Deputy County Atty., Omaha, Paul L. Douglas, Atty. Gen., Terry R. Schaaf, Paul E. Hofmeister and Lynne Rae Fritz, Asst. Attys. Gen., Lincoln, for appellee.

Tim A. Sindelar of Smith, Sindelar, Smith & Gooch, Omaha, on brief, of amicus curiae, Nebraska Civil Liberties Union.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE and HASTINGS, JJ.

KRIVOSHA, Chief Justice.

By this appeal appellant, Terry G. Parker, attacks the constitutionality of Article I, section 9, of the Constitution of the State of Nebraska, as the same was amended by vote of the people on November 7, 1978 (1978 bail amendment). Article I, section 9, of the Nebraska Constitution now provides as follows: "All persons shall be bailable by sufficient sureties, except for treason, sexual offenses involving penetration by force or against the will of the victim, and murder, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted." The amendment added the phrase "sexual offenses involving penetration by force or against the will of the victim" to an article which otherwise has existed since the Nebraska Constitution was first adopted. For reasons set out herein, we find that the 1978 bail amendment is in all respects valid and we affirm the decision of the District Court for Douglas County, Nebraska, denying bail to defendant.

As the basis for his attack on the constitutionality of Article I, section 9, appellant maintains (1) That the 1978 bail amendment violates the excessive bail prohibition of the Eighth Amendment to the United States Constitution; (2) that the 1978 bail amendment violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; (3) that the 1978 bail amendment violates appellant's presumption of innocence protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution; (4) that the 1978 bail amendment violates appellant's rights to the effective assistance of counsel and to freedom to prepare his defense under the Sixth and Fourteenth Amendments to the United States Constitution; and (5) that the 1978 bail amendment violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution.

For purposes of this appeal the facts have been stipulated by the parties. Therefore, no factual dispute exists. On April 21, 1978, L.B. 553 was enacted by the Nebraska Legislature, proposing, subject to approval by the electorate, that Article I, section 9, of the Constitution of the State of Nebraska be amended to further exclude from bail persons charged with "sexual offenses involving penetration by force or against the will of the victim" where the proof was evident or the presumption great. Prior to that time under Article I, section 9, of our State Constitution only treason and murder were nonbailable offenses where the proof was evident or the presumption great. On November 7, 1978, the people of the State of Nebraska duly enacted the proposed amendment by a vote of 355,949 in favor and 79,179 opposed.

Appellant in this case was charged with having subjected another person to sexual penetration by force, threat of force, or implied coercion or deception on January 10, 1979. Appellant, after entering a plea of not guilty, sought release on bail. The municipal court for the City of Omaha, Nebraska, denied the request on the basis that Article I, section 9, of the Constitution of Nebraska did not permit bail in a case of this nature.

Appellant then filed a petition for writ of Habeas Corpus, in the District Court for Douglas County, Nebraska, alleging that he was being unlawfully imprisoned and deprived of his liberty by virtue of the court's refusal to set bail. Following hearing, the District Court for Douglas County, Nebraska, concluded that Article I, section 9, of the Constitution of Nebraska was valid and denied bail to the appellant. From that order denying bail appellant has appealed to this court. Without admitting his guilt, appellant has stipulated for purposes of this appeal that the proof was evident or the presumption was great that appellant committed a sexual offense involving penetration by force or against the will of the victim.

The Supreme Court of the United States has never expressly held the Eighth Amendment to the Constitution of the United States binding on the states through the Fourteenth Amendment. However, in State v. Pilgrim, 182 Neb. 594, 156 N.W.2d 171, we have held the federal prohibition against excessive bail applicable to the states. See Mastrian v. Hedman, 326 F.2d 708 (8th Cir. 1964). We examine this appeal as if the Eighth Amendment did apply to the states.

We turn first to appellant's contention that Article I, section 9, of the Constitution of Nebraska violates the Eighth Amendment to the United States Constitution. Neither a reading of the provisions of the Eighth Amendment nor an examination of the history of bail, either in this country or in Europe, leads to the conclusion urged by appellant.

The Eighth Amendment to the United States Constitution provides as follows: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Nothing contained in that single sentence can sustain an argument that bail is required in every case.

Appellant has directed our attention to an extensive, two-part law review article on the subject by Professor Caleb Foote,...