ADRIAN CALISTE, individually and on behalf of all others similarly situated; BRIAN GISCLAIR, individually and on behalf of all others similarly situated, Plaintiffs - Appellees
HARRY E. CANTRELL, Magistrate Judge of Orleans Parish Criminal District Court, Defendant-Appellant
from the United States District Court for the Eastern
District of Louisiana
HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
COSTA, CIRCUIT JUDGE
man can be judge in his own case." Edward Coke,
Institutes of the Laws of England, § 212, 141 (1628).
That centuries-old maxim comes from Lord Coke's ruling
that a judge could not be paid with the fines he imposed.
Dr. Bonham's Case, 8 Co. Rep. 107a, 118a, 77
Eng. Rep. 638, 652 (C.P. 1610). Almost a century ago, the
Supreme Court recognized that principle as part of the due
process requirement of an impartial tribunal. Tumey v.
Ohio, 273 U.S. 510, 523 (1927).
case does not involve a judge who receives money based on the
decisions he makes. But the magistrate in the Orleans Parish
Criminal District Court receives something almost as
important: funding for various judicial expenses, most
notably money to help pay for court reporters, judicial
secretaries, and law clerks. What does this court funding
depend on? The bail decisions the magistrate makes that
determine whether a defendant obtains pretrial release. When
a defendant has to buy a commercial surety bond, a portion of
the bond's value goes to a fund for judges' expenses.
So the more often the magistrate requires a secured money
bond as a condition of release, the more money the court has
to cover expenses. And the magistrate is a member of the
committee that allocates those funds.
argue that the magistrate's dual role-generator and
administrator of court fees-creates a conflict of interest
when the judge sets their bail. We decide whether this dual
role violates due process.
Henry Cantrell is the magistrate for the Orleans Parish
Criminal District Court. He presides over the initial
appearances of all defendants in the parish, which
encompasses New Orleans. At those hearings, there are
typically 100-150 a week, Judge Cantrell appoints counsel for
indigent defendants and sets conditions of pretrial release.
One option for ensuring a defendant's appearance is
requiring a secured money bond. Just about every defendant
who meets that financial condition does so by purchasing a
bond from a commercial surety, as that requires paying only a
fraction of the bond amount.
defendant buys a commercial bail bond, the Criminal District
Court makes money. Under Louisiana law, 1.8% of a commercial
surety bond's value is deposited in the court's
Judicial Expense Fund. See La. R.S. §§
22:822(A)(2), (B)(3), 13:1381.5(B)(2)(a). That fund does not
pay judges' salaries, but it pays salaries of staff,
including secretaries, law clerks, and court reporters. It
also pays for office supplies, travel, and other costs. The
covered expenses are substantial, totaling more than a
quarter million dollars per judge in recent years. The bond
fees are a major funding source for the Judicial Expense
Fund, contributing between 20-25% of the amount spent in
recent years. All 13 judges of the district court,
including Judge Cantrell, administer the fund.
Cantrell requires a secured money bond for about half of the
arrestees. So it was not unusual when he imposed that
condition for both Adrian Caliste and Brian Gisclair when
they appeared before him on misdemeanor arrests. Nor was it
uncommon when Judge Cantrell did not make findings about
their ability to pay or determine if nonfinancial conditions
could secure their appearance. It took over two weeks for
Caliste to come up with the money to buy a bail bond, which
cost about 12-13% of the $5, 000 amount the court set
(Caliste had two charges and bail was set at $2, 500 per
offense). Gisclair was never able to come up with the money
and stayed in jail for over a month before being released.
they were in custody, Caliste and Gisclair filed this federal
civil rights lawsuit against Judge Cantrell. They sued on
their own behalf and to represent a class of all arrestees
"who are now before or who will come before" Judge
Cantrell for pretrial release determinations and who cannot
afford the financial conditions imposed. See Fed.
R. Civ. P. 23(b)(2).
lawsuit challenges two aspects of Judge Cantrell's bail
practices. First, the complaint alleges that he was violating
the Due Process and Equal Protection Clauses by setting bond
without inquiring into an arrestee's ability to pay or
considering the adequacy of nonfinancial conditions of
release. This, Plaintiffs contend, results in keeping people
in jail only because of their inability to make a payment.
The second allegation relates to Cantrell's "dual
role as a judge determining conditions of pretrial release
and as an executive in charge of managing the Court's
finances." To plaintiffs, the financial incentive to
require secured money bonds is a conflict of interest that
deprives arrestees of their due process right to an impartial
tribunal. For both claims, the plaintiffs sought only
appeal concerns only the conflict-of-interest claim. A year
after the case was filed, Judge Cantrell told the district
court that he had altered his bail practices to consider
ability to pay and argued that this change mooted the first
claim. The district court disagreed and granted a declaratory
judgment on both claims. But Judge Cantrell appeals ...