State v. Neisler

• Decision Date: 28 February 1994
• Citation: 633 So.2d 1224
• Parties: 93-1942 La
• Court: Louisiana Supreme Court

Page 1224

633 So.2d 1224

93-1942 La. 2/28/94

STATE of Louisiana v. Amanda NEISLER.

No. 93-KK-1942.

Supreme Court of Louisiana.

Feb. 28, 1994.

Donald O. Pinkston, New Orleans, for applicant.

Richard P. Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Ralph E. Brandt, Jr., New Orleans, for respondent.

Arthur A. Lemann, III, New Orleans, for Louisiana Ass'n Criminal Defense, amicus curiae.

[93-1942 La. 1] HALL, Justice. ^*

This case presents two significant, recurring issues regarding the modification of bail by criminal district court judges in Orleans Parish. The first issue is whether a "regular" criminal district court judge has jurisdiction to modify bail set by the magistrate section of the court (i.e., the magistrate judge or commissioner) before an indictment or bill of information is filed and before the case is allotted to a specific regular section of the court. The second issue is whether LSA-C.Cr.P. Art. 342 (former Art. 321) ¹ mandates that a contradictory hearing be held to change the type of bail from secured to unsecured, as distinguished from increasing or decreasing the amount of bail.

Classifying the criminal district court judge's change in the type of defendant's bail as a de facto "bond reduction" and concentrating solely on the first issue, the Fourth Circuit held that the district court judge's (Judge Marullo's) modification of defendant's (Amanda Neisler's) bail was unauthorized and reinstated the original bail set by the ad hoc magistrate commissioner [93-1942 La. 2] (Commissioner Hesni). In so doing, the Fourth Circuit relied on its Hall decision ² and its progeny, in which it ruled that "bonds reduced, increased or amended by judges who do not have trial jurisdiction, do so without authority to act, C.Cr.P. art. 321 [current Art. 342], and thus commit error." State v. Neisler, 621 So.2d 154, 156 (La.App. 4th Cir.1993).

While we reach the same result, we do so for a wholly different reason. We find that the criminal district court judges of the regular sections A through J and the judicial officers of the magistrate section share concurrent jurisdiction both to set and to modify bail. We further find LSA-C.Cr.P. Art. 342 mandates that in Orleans Parish a contradictory hearing be held before bail can be modified to change the type of security, regardless that the amount of bail remains unchanged. Because Judge Marullo modified Amanda Neisler's bail in an ex parte proceeding, we affirm the court of appeal's finding that the modification was unauthorized.

FACTUAL AND PROCEDURAL BACKGROUND

On Saturday, June 12, 1993, Amanda Neisler was arrested on two felony charges, involving drug trafficking. On that same day, Magistrate Commissioner Ad Hoc Hesni set her bail at $75,000 on one charge and at $50,000 on the other charge, for a total bail of $125,000. On Thursday, June 17th, in an ex parte proceeding, Criminal District Court Judge Frank Marullo (Section "D"), at the request of Amanda Neisler's counsel, reduced her bail to $10,000 on each charge, for a total bail of $20,000. On Friday, June 18th, at the assistant district attorney's request, Judge Marullo conducted a hearing at which the attorneys were present; after the hearing, Judge Marullo reinstated the original bail of $125,000.

On Tuesday, June 22nd, Magistrate Andrew Scambra conducted another bail hearing; after the hearing, Magistrate Scambra reduced Amanda Neisler's bail to $25,000 on each count, for a total bail of $50,000. ³ On Wednesday, June 23rd, the district attorney's office, complaining of factual misrepresentation at the bail hearing the previous day, contacted Magistrate Scambra. Responding to these complaints, Magistrate Scambra reinstated the original bail of $125,000, and ordered that a contradictory hearing be held on June 29th. Meanwhile, on Thursday, June 24th, Judge Marullo again modified Amanda Neisler's bail, changing it to [93-1942 La. 3] a $50,000 surety bond (i.e., bail through surety) and a $75,000 release on recognizance (i.e., bail without security). The latter ex parte ruling is the crux of the instant case.

Also on Thursday, June 24th, the Fourth Circuit granted the State's emergency writ application, and, based on its earlier Hall decision, vacated Judge Marullo's "bond reduction" order ⁴ as unauthorized, and reinstated Magistrate Commissioner Ad Hoc Hesni's original bail of $125,000. The Fourth Circuit also held that "[a]ny further motions to reduce, increase or amend the bond must be brought before the Magistrate Commissioner until such time that the defendant is formally charged and his case is allotted to one of the ten felony sections of the Criminal District Court." 621 So.2d at 156. While the State requested that the court also order the magistrate to conduct a hearing, the Fourth Circuit's opinion is devoid of any discussion of whether a contradictory hearing should be required to modify bail.

We granted defendant's, Amanda Neisler's, writ application to address the correctness of the Fourth Circuit's decision. 629 So.2d 373 (La.1993).

MOOTNESS

The basic issue before us is whether Judge Marullo's modification of Amanda Neisler's bail initially set by Magistrate Commissioner Ad Hoc Hesni was unauthorized. Given that the district attorney later filed formal charges and that this case was allotted to a specific regular section of the court, the issue before us could be considered moot. Yet, this case presents a classic illustration of an issue "capable of repetition, yet evading review."

That the issue is a recurring one is evidenced by the fact that in Hall the issue was raised in a writ application before us but became moot before we could consider it. More precisely, we denied writs in Hall because the district attorney's decision not to prosecute the defendant [93-1942 La. 4] rendered the issue moot. State v. Hall, unpub. (No. 91-K-1375) (La.App. 4th Cir.) (July 26, 1991), writ denied, 588 So.2d 1114 (La.1991) ("Moot"). ⁵

That the issue could permanently escape our consideration should we once again decline to consider it as moot is evidenced by the fact that the issue arises only during a small window of time between arrest and the district attorney's formal decision of whether to prosecute--a statutory maximum 60-day period in felony cases. ⁶ Because that window of time is shorter than the ordinary appellate delay, the issue could permanently evade appellate review. State v. Lacour, 398 So.2d 1129, 1130-31 (La.1981) (collecting cases); Malek v. Yekani-Fard, 422 So.2d 1151, 1152 (La.1982).

In short, this case falls squarely within the ambit of the special exception permitting courts to consider moot issues that are capable of repetition, yet forever evading appellate review. Lacour, supra; State v. Eaton, 483 So.2d 651, 660-61 (La.App. 2d Cir.1986). We thus proceed to address the merits of the issue presented.

As the issue presented is confined specifically to the Orleans Parish Criminal District Court, we begin by outlining that court's organizational structure.

THE ORLEANS PARISH CRIMINAL DISTRICT COURT

There is "one Criminal District Court for the parish of Orleans, which shall be composed of ten judges." LSA-R.S. 13:1335(A). "[C]ases pending in the criminal district court shall be allotted equally among Sections A, B, C, D, E, F, G, H, I, and J of the court." LSA-R.S. 13:1343. "In addition to the sections of the Criminal District Court for the parish of Orleans now existing," LSA-R.S. 13:1346(C) creates the "Magistrate Section of the Criminal District Court," which shall be presided over by the Magistrate Judge. "In addition to the judgeships, including the judge of the magistrate section of the Criminal District Court for the parish of Orleans," LSA-R.S. 13:1347(A) creates the four magistrate commissioners.

Generally, the operation of the criminal district court is outlined in Local Rule II, Section 1 of the Orleans Parish Criminal District Court, which provides:

[93-1942 La. 5] There shall be ten Sections of the Court, which shall be known and designated as Sections A, B, C, D, E, F, G, H, I, J; and the Magistrate Section, which shall be presided over by the Judges respectively elected or appointed, and by their successors in office. Each Judge shall be known and designated as the Judge of the Section over which he presides. There are four Commissioners who shall be appointed by the Judges of the Criminal District Court.

Particularly, the operation of the magistrate section is outlined by Local Rule IV, which provides:

Section 1. The Magistrate Section shall be composed of the Magistrate Judge and four Commissioners. The purpose of this Section of the Court is to provide every arrested person (hereinafter called defendant), who has been arrested under State Statute, prompt access to a committing Magistrate Commissioner who shall conduct a hearing within a reasonable time after a person has been arrested:

(a) To advise the defendant of the charges against him;

(b) To advise the defendant of his rights under the Constitution of the State of Louisiana;

(c) To appoint counsel for the proceedings in Magistrate Court if defendant is indigent;

(d) To set a date and time for a Preliminary Hearing to determine whether there is probable cause to believe that the defendant committed the offenses with which he is charged. The hearing shall be set on written motion by the Defendant or the District Attorney.

(e) To set bail upon request of a defendant.

Section 2. In order to perform these functions, the Magistrate Court shall be open seven days a week, twenty-four hours a day. (emphasis supplied).

In sum, the one criminal district court is comprised of (i) ten "regular" sections, designated as sections A through J, and each presided over by an elected district court judge; and (ii) a magistrate section, comprised of one elected magistrate judge and four appointed magistrate commissioners. The functions of each of the sections of the criminal district court are...