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Jax Daily Record Thursday, Sep. 27, 201805:20 AM EST

The Marbut Report: Court dismisses challenge of Duval bail policy

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“This is far from over,” attorney Bill Sheppard says; suit argued policy violates plaintiffs’ constitutional rights.
by: Max Marbut Associate Editor

The federal court in Jacksonville dismissed a complaint on behalf of people who have been or will be arrested and taken to jail in Duval County but can’t afford to make bail and therefore remain incarcerated.

The lawsuit was filed Aug. 30, 2017, by attorney William Sheppard of Sheppard, White, Kachergus & DeMaggio on behalf of three named plaintiffs and other people in similar status not named.

It was dismissed Sept. 11 by U.S. District Judge Brian Davis. He directed the clerk of the court to terminate pending motions and close the file on the case.

The complaint was filed against 4th Judicial Circuit Chief Judge Mark Mahon and the other circuit and county judges and also against Sheriff Mike Williams.

It challenged the use of a secured money bail system to detain people who are arrested for misdemeanors but lack the resources to post cash bond on their own or to engage the services of a bail bonding agency.

Sheppard contended that Jacksonville uses “wealth- based post-arrest detention procedures” and that the city imposes “secured financial conditions of pre-trial release” without determining whether a person who has been arrested has the ability to pay.

The complaint stated that the policy of the Jacksonville Sheriff’s Office and of the judges is to incarcerate people who are arrested for misdemeanor crimes unless they pay a fee determined by an offense-based bail schedule.

The lawsuit alleged that the city and JSO violated the plaintiffs’ rights to due process and equal protection guaranteed by the state constitution and the 14th Amendment of the U.S. Constitution.

Motions to dismiss the case were filed by Senior Assistant State Attorney General William Stafford III on behalf of the judiciary and by city Deputy General Counsel Jon Phillips on behalf of the sheriff.

In the motion for dismissal, Stafford cited “absolute judicial immunity,” part of the 1996 Federal Courts Improvement Act that makes judges, acting in their official capacity, immune from litigation related to rulings they make from the bench, such as bail hearings.

In addition, Stafford said in the motion, the 11th Amendment to the U.S. Constitution bars consideration by federal courts of claims that a state or state official violated state law.

Stafford also cited Younger v. Harris, a U.S. Supreme Court decision that federal courts should refrain from intervening in ongoing state criminal proceedings.

In the response on behalf of Williams, Phillips cited the Pullman abstention doctrine. It states that “a federal court will defer to state court resolution of underlying issues of state law” in order to avoid “unnecessary friction in federal-state relations.”

Philips also stated that the bail policy in Duval County is set by the judges, not by the sheriff and further that the sheriff, as a city employee, cannot be held liable for the actions of state officers, including judges.

Davis dismissed the federal court case without prejudice. That gives the plaintiffs the option to appeal the case to a higher federal court, or to file a complaint in the state court.

Sheppard said Monday he’s considering how to move forward with the case. Options include appealing the ruling to the federal appellate court or amending the complaint and returning to the federal district court.

He said he takes “great comfort” in some of Davis’s language in the order dismissing the case:

“To be sure, Plaintiff’s Complaint, taken as true, raises serious and concerning allegations. If the judges in Duval County, Florida are not considering an accused’s financial ability to post a bond when setting bond amounts, then they are violating not only Florida’s Constitution and its Rules of Criminal Procedure, but arguably they act in violation of the Eighth and Fourteenth Amendments to the United States Constitution.”

“This is far from over. We will continue to fight,” said Sheppard.

 

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