Analysis- The Fifth Circuit Slams the Door on Federal Oversight of Pretrial Bail- Daves v. Dallas County En Banc Opinion No. 2
In the last few years, there have been proposals for bail reform across the United States. In some states, when the reform sought at the state legislature did not appear likely, litigation was initiated to attempt to force reforms. In Texas, litigation was initiated in Harris County entitled ODonnell v. Harris County alleging that misdemeanor bail practices violated procedural due process. Even though judges normally cannot be sued under 42 USC 1983, the plaintiffs argued that county court judges were acting as county policy makers when they adopted a bail schedule. The district court agreed and refused to dismiss the case. Additionally, the trial court denied a motion to dismiss based upon the doctrine of abstention. Thereafter, the district court held that Harris County's misdemeanor practices violated the constitution and entered a preliminary injunction. The injunction was reversed. (ODonnell I). The district court entered a second preliminary injunction and it was stayed by the Fifth Circuit before the case was settled. (ODonnell II).
Thereafter, a new lawsuit was filed in Dallas County federal court entitled Daves v. Dallas County. This case sought to take the ruling in ODonnell regarding misdemeanor judges and to extend it to district court judges. The Dallas district court agreed and extended the ODonnell ruling to the district court judges.
This is where the tide turned in this litigation. In the initial appeal before the three judge panel in Daves, the judges refused to extend the ODonnell opinion that misdemeanor judges were county policy makers when they adopted a bail schedule. Additionally, the panel made a comment that they were bound to follow the ODonnell opinion regarding the misdemenaor judges, but might have come to a different conclusion otherwise.
This set up the first opinion en banc in Daves (Daves I) that opinion was issued in January 2022. En banc means that it was considered by all of the 16 or more judges who sit on the Fifth Circuit and would be vehicle to allow the court to reconsider ODonnell I. In Daves I, the en banc majority reversed ODonnell's ruling as to misdemeanor judges and held that when a misdemeanor or felony judge is setting bail they are acting on behalf of the state; and therefore, were state actors who could not be sued in federal court under 42 USC 1983. But this decision did not resolve all the issues in Daves. Dallas County, the Dallas County sheriff, and the magistrate judges were still parties in the case since the injunction did not apply to them.
Therefore, the Fifth Circuit remanded the case to the trial court to make findings and to address two issues and then return the case to the court of appeals for a final resolution en banc. The two issues on remand were abstention and mootness. Abstention is whether the district court should decline to exercise jurisdiction. Mootness deals with whether SB 6 changed the law to such an extend that the Daves case no longer presented a case or controversy and any further litigation would have to address the new law.
On March 31, 2023, the Fifth Circuit issued Daves II which is the second en banc decision to address the remaining issues so that the case could be finally resolved. The opinion handed down is a stunning opinion that had some foreshadowing. The first sentence sets the tone for the opinion:
In a second round of en banc review, we conclude that this case, whose aim was to revise by federal decree the Texas state court procedures for felony and misdemeanor pretrial bail, should never have been brought in federal court.
Later in the analysis of abstention, the court holds that neither ODonnell I nor Daves should have been adjudicated in federal court.
II. Abstention
The concept of abstention is based upon comity. Stated another way it is a courtesy to a state to decline to address a case, respecting that the state will have adequate legal remedies available to the plaintiffs. The doctrine requires federal court abstention when three criteria are met: “(1) the federal proceeding would interfere with an ‘ongoing state judicial proceeding’; (2) the state has an important interest in regulating the subject matter of the claim; and (3) the plaintiff has ‘an adequate opportunity in the state proceedings to raise constitutional challenges.’”
The en banc opinion addressed that it was imperative that the court reconsider abstention to counteract judicial amnesia. The court noted that there were a number of cases in the fifth circuit and other circuits asking federal courts to judicially order and enforce state court bail reforms. Additionally, the court of appeals noted several federal courts had rejected abstention without exhaustive consideration. (citing ODonnell I). The court noted that if abstention is mandated, much time and money as well as judicial resources would be saved on litigation in federal court. The court also argued that misinterpretations of abstention had caused friction between state criminal courts as a result of federal courts micromanaging bail changes.
On the issue of abstention, the court principally relied upon the Supreme Court opinion in O’Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669 (1974), which the court appeals argued was closely on point. In O’Shea, the Court held that a group of plaintiffs had no standing to challenge various Cairo, Illinois criminal practices, notably including the imposition of excessive bail, which were alleged to be racially discriminatory and discriminatory against indigents. Id. at 498, 94 S. Ct. at 677. The Supreme Court alternatively held that even if some plaintiffs had standing, the principles of Younger mandated that no federal equitable relief could be granted in the absence of irreparable injury “both great and immediate.” Also, in O'Shea, the Supreme Court coupled its concerns about interfering with a state criminal proceeding with its description of various adequate legal remedies that were available to the plaintiff class members in the course of criminal defense. This included direct and postconviction collateral review, disciplinary proceedings against judges and federal habeas relief.
Therefore, the Fifth Circuit reconsidered the decision of the trial court and the Fifth Circuit in ODonnell I. In reviewing the first element regarding whether the litigation would interfere with ongoing state proceedings, ODonnell I held that supervisory bail injunctions would not implicate comity. However, the Fifth Circuit pointed out that the injunction issued in ODonnell I expressly mandated a periodic reporting scheme that the Supreme Court precluded in O'Shea. The court of appeals also argued that even before the en banc decision in Daves I, the Fifth Circuit had found it necessary to disapprove several of the overreaching injunctive provisions in ODonnell I. The court of appeals also argued that this type of litigation could create mischief because it would allow pretrial detainees to claim that the state court did not comply with the federal court's opinion even if it was a case of interpretation.
As to the second element in determining abstention, regarding the state's interest, the court of appeals noted that the plaintiffs in ODonnell I conceded the second element.
On the third element, regarding the adequacy of state court remedies, the court of appeals spent considerable time disparaging the original analysis of the trial court in ODonnell I. The court of appeals argued that the plaintiffs and the district court placed too much reliance on one sentence in the Gibson case that appeared to say that the timeliness of state remedies is a requirement to prevent abstention. In addressing how the ODonnell I court went wrong on the third prong of abstention, the court of appeals noted the response offered by the Supreme Court in Middlesex County Ethics Committee: “Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.” 457 U.S. at 431, 102 S. Ct. at 2521. The court of appeals concluded that this presumption was violated in ODonnell I’s rejection that Texas had adequate state remedies.
The court of appeals argued that the analysis of the trial court in ODonnell I was contrary to case law issued by the Supreme Court wherein the court held that the federal plaintiff must only have an opportunity to press his claim in state court and nothing more. The court of appeals argued that the failure on the part of the plaintiffs to avail themselves of those procedures did not make them inadequate procedures. The court of appeals argued that the abstention only mandates an opportunity to raise federal claims in the state court proceedings.
- A person may move for a bond reduction;
- Can ask for reconsideration of bail in light of States written witness statements as well as all other evidence available;
- Felony cases have a right to ask for an examing trial before indictment to determine the amount and sufficiency of bail;
- There is no procedural bar for filing a motion for reconsideration of bail;
- Petition for habeas corpus is available; and
- Mandamus. (see footnote 27).
The court of appeals concluded that Texas courts have shown themselves capable of reviewing bail determinations.
An order for cash bail accompanies a judicial determination of probable cause, which means that the defendant has presumably violated the criminal law. At that point, the question becomes how to balance the interests of the defendant in being released pending trial against society’s need to enforce the law, protect innocent citizens, and secure attendance at court proceedings. See, e.g., Tex. Code Crim. P. art. 17.15(a). Certainly, any kind of error in assessing excessive bail is lamentable, whether it pertains to the defendant’s criminal history, the nature of the instant charge, the protection of potential victims, or his ability to pay cash bail. Even more unfortunate is the plight of a person unconstitutionally convicted who remains incarcerated pending the outcome of appeal or postconviction remedies; yet that is precisely what Younger held despite the “untimeliness” of the state criminal process. The gist of Younger’s test for availability, however, lies in the fact that errors can be rectified according to state law, not that they must be rectified virtually immediately.
On the issue of mootness, under Article II of the Constitution, federal courts may only adjudicate ongoing controversies. The court of appeals recognized that the Texas legislature made substantive changes to procedures for assessing bail in S.B. 6 in the last legislative session. Additionally, the court of appeals noted that the bail proceedings identified in Daves took place years before the passage of S.B. 6.
On the issue of mootness, the trial court recommended to the court of appeals that the case be dismissed based upon the passage of S.B. 6. The court of appeals stated that it substantially agreed with district court's analysis and cited as additional authority a previous en banc opinion in Pugh v. Rainwater decided in 1978. Pugh addressed new bail legislation in Florida enacted during the pendency of the case on appeal. The court of appeals held, en banc, that the new law was not facially unconstitutional and as a result required that the case be dismissed as moot.
The court of appeals states that it was not bound by Pugh, but believed that the resolution of Pugh involved identical dispute and that was compelling to the court. The court of appeals concluded that the issued raised in Daves were moot because they were no longer "live" as a result of the law change.
The plaintiffs cited two Supreme Court decisions to support their argument that Daves was not moot. The first case involved the voluntary cessation exception to mootness. On this argument, the court of appeals concluded that voluntary cessation was not involved in this case. On the second case cited by the plaintiffs, the court of appeals held that case actually favored the defendants. The court added that the plaintiffs argument on this case was incoherent.
The court of appeals concluded that the case is moot by virtue of intervening state law.
IV. Possible Impact of Daves II
The impact of the opinion in Daves II should be substantial on several fronts. On remand, the Daves case will be finally dismissed. It should resolve other pending litigation in the Fifth Circuit and could be used to resolve other litigation around the country. The litigation will also have an immediate impact on counties receiving threatening letters from advocates demanding changes or face costly litigation.
There are also other cases pending in Texas. In Booth v. Galveston County, the trial court reviewed certain pretrial bail procedures. The case was appealed to the Fifth Circuit and was argued over a year ago. One would anticipate that the case might be remanded with instructions to the trial court to reconsider its opinion in light of the Daves' opinion. In Russell v. Harris County, litigation remains pending against Harris County regarding felony bonds. The only parties remaining are the County and the sheriff. Judge Rosenthal held a hearing on 3/29/23 setting out plans to move forward. The Daves II opinion was released just two days later. In response, Judge Rosenthal held a status conference with the parties that same day by 3:00 pm to discuss the impact of the opinion on Russell. Judge Rosenthal issued a schedule for the parties to file briefing to address abstention and mootness. The briefs are limited to 15 pages. The defendant's brief is due not later than April 14, 2023. The plaintiff's brief is due no later than April 28, 2023. The reply brief is due no later than May 3, 2023. Judge Rosenthal also requested the briefing to address whether the Russell case was distinguishable from Daves and to what extent abstention was waivable as a defense. It is unclear whether the additional briefing was at the suggestion of the parties or the court.
One question that may remain is whether the plaintiffs may seek review by the Supreme Court. The court of appeals recognized that its analysis on the issue of abstention differed from the 11th Circuit's analysis in Walker v. City of Calhoun and Schultz v. Alabama. A difference of opinion between the circuit courts is grounds for a party to file a petition for certiorari. One might wonder if this is exactly what the Fifth Circuit is hoping will happen to possibly shut the door on this litigation nationwide.
To see the opinion CLICK HERE.
Additional information-
“Harris County must immediately void the ODonnell consent decree and the costs associated with it,” said Ramsey. “They also need to be sure to move to dismiss the Russell lawsuit.” The Texan, Fifth Circuit Court Overturns Bail Bond Precedent Cases in Dallas and Harris Counties- CLICK HERE
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