IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 01-31408 __________________________

KAYNE BROUSSARD, ETC; ET AL., Plaintiffs,

versus

THE PARISH OF ORLEANS, ETC; ET AL., Defendants.

LEONARD J. DAZET, JR., and all those similarly situated; JAMES ANTHONY McDANIEL, and all those similarly situated, Plaintiffs-Appellants

versus

M.J. FOSTER, ETC; ET AL, Defendants

KENNETH GOSS, Sheriff of Acadia Parish; ET AL, Defendants-Appellees

DEMICO PERKINS, and all those similarly situated, Plaintiff-Appellant

versus

M.J. FOSTER, ETC; ET AL, Defendants

CHARLES C. FOTI, JR., Individually and in his official capacity as the Criminal Sheriff of Orleans Parish, State of Louisiana, Defendant-Appellee

DEMICO PERKINS, and all those similarly situated, Plaintiff-Appellant

versus

M.J. FOSTER, ETC; ET AL, Defendants

EDWIN A. LOMBARD, In his official capacity as Clerk of Criminal District for the Parish of Orleans, State of Louisiana, THE CITY OF NEW ORLEANS, Defendants-Appellees ----------------------------------------------------------------- Cons/W 01-31410 KAYNE BROUSSARD, ETC; ET AL., Plaintiffs,

versus

THE PARISH OF ORLEANS, ETC; ET AL., Defendants.

DEMICO PERKINS, and all those similarly situated, Plaintiff-Appellant

versus

M.J. FOSTER, ETC; ET AL, Defendants

EDWIN A. LOMBARD, In his official capacity as Clerk of Criminal District for the Parish of Orleans, State of Louisiana, CITY OF NEW ORLEANS, Defendants-Appellees

___________________________________________________

Appeals from the United States District Court for the Eastern District of Louisiana

___________________________________________________ January 10, 2003 Before WIENER and STEWART, Circuit Judges, and RESTANI,1 Judge.

WIENER, Circuit Judge:

In this case, the Plaintiffs-Appellants (“arrestees”), are

members of a state-wide group of persons arrested within one year

prior to commencement of this suit. They now appeal the district

1 Judge of the U.S. Court of International Trade, sitting by designation.

2 court’s rejection of their challenges to three Louisiana statutes,

each of which requires payment of a fee as a prerequisite to

release on bail. As we find that such fees are administrative

charges reasonably related to the functioning of the bail-bond

system, we affirm.

I. FACTS AND PROCEEDINGS

Plaintiffs-Appellants comprise three classes of arrestees who

challenge three Louisiana statutes (“bail-fee statutes”) that

impose specified charges or fees when an arrested individual posts

bail.2 Each class is limited to individuals who were arrested

within one year of filing suit. The Defendants-Appellees are the

sheriffs of almost every Parish in Louisiana (collectively, the

“sheriffs”), including the Sheriff of Orleans Parish (“Orleans

Sheriff”), and the Clerk of the Criminal District Court for Orleans

Parish (“Orleans Clerk”).3

The following provisions are the challenged portions of the

bail-fee statutes:

1. Section 1432(9) [hereinafter the “multi-sheriff statute”]:

The compensation, fees and costs allowed sheriffs, the parish of Orleans excepted, for all services in criminal matters,

2 The first class consists of arrestees in every Louisiana Parish except Orleans, Avoyelles, Livingston, St. James, and Lafayette. The second class consists of arrestees of Orleans Parish, and the third class consists of arrestees who paid the bail fee to the Clerk of the Criminal District Court of Orleans Parish. 3 Defendants-Appellees do not include the sheriffs of Avoyelles, Livingston, St. James, or Lafayette Parishes.

3 shall be the following: 9) For taking appearance bond when required to do so, fifteen dollars, unless suspended by a judge of the district court of the parish. A judge of a district court of the parish shall waive this fee if a defendant has been tried and found not guilty or if the charges against the defendant are dismissed.4

2. Sections 1520(3) and (6) [hereinafter “Orleans Sheriff

statute”]:

The criminal sheriff of Orleans Parish shall collect from the parties, from witnesses, from sureties, and from sureties on bonds forfeited, the following fees and charges: (3) For serving notice of arraignment or of trial on accused and surety, for each, and return, seven dollars; (6) For taking appearance bond or recognizance bond when required to do so, fifteen dollars, unless suspended by the judges of the Criminal District Court of the Parish of Orleans.5

3. Section 1381(3) [hereinafter “Orleans Clerk statute”]:

The following charges may be made for the services of the clerk of the criminal district court: (3) For filing and processing of appearance or witness bond, five dollars.6

The bail-fee statutes are among a more extensive group of

statutes that provides for fees in a variety of situations. For

instance, the Orleans Parish sheriff may charge twelve dollars

“[f]or serving attachments to bring witnesses into court”7;

sheriffs of other parishes may charge two dollars “[f]or each

4 La. Rev. Stat. Ann. § 33:1432(9) (2002). 5 La. Rev. Stat. Ann. § 33:1520(3), (6) (2002). 6 La. Rev. Stat. Ann. § 13:1381(3) (1999). 7 La. Rev. Stat. Ann. § 33:1520(5) (2002).

4 warrant executed outside of the parish”8; and the Orleans Clerk may

charge two dollars “[f]or filing and recording [an] affidavit.”9

Taken together, the entire group reveals that Louisiana has

delegated to various parish officials a portion of the

responsibility for covering the expenses that they incur while

carrying out administrative tasks.

The bail-fee statutes, however, do not constitute the

exclusive legislative attempt to collect money through or for the

benefit of the bail-bond system. Section 1065.1 of Title 22 of the

Louisiana Revised States imposes a two percent “fee on premium for

all commercial surety underwriters who write criminal bail bonds in

the state of Louisiana.”10 This fee is distributed to the judicial

court fund (25%), the sheriff’s general fund (25%), the district

attorney’s operating fund (25%), and the Indigent Defenders Program

(25%).11 This provision, in fact, was enacted contemporaneously

with the repeal of similar but piecemeal legislation,12 and as a

result constitutes “the exclusive fee or tax on any criminal bail

8 La. Rev. Stat. Ann. § 33:1432(7) (2002). 9 La. Rev. Stat. Ann. § 13:1381(1) (1999). 10 La. Rev. Stat. Ann. § 22:1065.1(A) (2003). 11 La. Rev. Stat. Ann. § 22:1065.1(B) (2003). 12 See

, at 2212; La. Rev. Stat. Ann. §§ 13:994(B), 996(B), and 1384 (1999).

5 bond premium.13 Finally, the Louisiana Legislature has provided for

the distribution of bond forfeiture amounts from district courts,

parish courts, and city courts to some parish sheriffs around the

state.14 In total, sheriffs receive funds to support the bail- bond

system from (1) a tax on bondsmen (which the bondsmen likely pass

on to arrestees), (2) fees imposed by the bail-fee statutes at

issue here, and, for some sheriffs, (3) bond forfeitures.

In the district court, arrestees invoked

to

challenge the constitutionality of the bail-fee statutes under the

Fourth, Eighth and Fourteenth Amendments, both facially and as

applied. As matters outside the pleadings were presented to the

district court, it converted the sheriffs’ motion for judgment on

the pleadings into a motion for summary judgment, then rejected all

of arrestees’ claims.

On appeal, the crux of arrestees’ argument is the same as it

was before the district court: An arrested person should not have

to pay a statutory fee to the parish sheriff or clerk over and

above the amount of bail they are required to post. First, and

most significantly, they rely on Augustus v. Roemer to argue that

an arrestee has a fundamental right “not to be deprived of or

unreasonably inhibited from exercising [bail] once it has been

13 La. Rev. Stat. Ann. § 22:1065.1(A) (2003). There is one exception to the exclusivity of this fee, but it is not relevant here. Id. 14 1993 Acts, No. 834, at 2206, § 571.11(L).

6 favorably determined.”15 As a result, insist arrestees, the

government must have a compelling interest to restrict that right.

Imposing a monetary charge for the purpose of raising revenue, they

assert, is not an adequate compelling interest. This fundamental-

rights contention also provides a foundation for arrestees’ equal

protection and procedural due process claims.

Second, arrestees insist that charging bail-bond fees is akin

to imposing costs of prosecution on an acquitted defendant. Third,

they contend that the statutes are void on vagueness grounds

because different sheriffs charge fees in differing amounts and

maintain inadequate, ambiguous refund procedures. Fourth,

arrestees assert that the bail-fee statutes tempt sheriffs to stack

charges so as to fill their departments’ coffers. This temptation,

claim the arrestees, violates their procedural due process rights

to “an impartial determination of the number of bookings.” Fifth,

they contend that these fees constitute excessive fines under the

Eighth Amendment. Finally, they argue that charging a fee to

exercise bail constitutes an unreasonable seizure of their person

and property under the Fourth Amendment.16

15

(E.D. La. 1991). 16 The arrestees’ remaining three distinct claims are meritless. They first argue that sheriffs are exceeding their authority if the statutes are construed to impose fees after conviction. The statutes, however, fairly clearly provide for fee collection before conviction, as that is when a bond is usually taken. Second, arrestees dispute the district court statement that they failed to show that any charges on arrestees had been dropped. As we explain, however, arrestees’ claims fail

7 In contrast, the sheriffs contend that the outcome of this

case, at least with regard to the multi-sheriff statute, §1432(9),

is governed by our holding in Enlow v. Tishomingo County.17 At

issue in that case was a bail-fee statute that was quite similar to

the one challenged here. The district court in Enlow rejected a

procedural due process challenge to that statute’s

constitutionality, and we summarily affirmed the district court,

concluding on the basis of our review of the briefs and record that

the opinion was “well reasoned and [the case] correctly decided.”18

The sheriffs contend that the only difference between the

Mississippi statute and Louisiana’s bail-fee statute is that the

Mississippi bail fee was calculated as a percentage of the bond,

and the statewide Louisiana bail-fee statute assesses a fixed

charge of fifteen dollars. This difference, they insist, is not

material.

The sheriffs also deny that there is any fundamental right to

free bail access, and rely on Schilb v. Kuebel to argue that the

bail-fee statutes merely authorize valid administrative fees to

because they are unable to show that the fees charged are arbitrary or to show that the fees caused a delay in release. Thus, whether any charges had been dropped is immaterial. Third, arrestees argue that dismissing the City of New Orleans was improper. Whether or not the City of New Orleans should be a defendant, however, depends on the merits of arrestees’ claims. As a result, this issue does not warrant discussion unless the bail-fee statutes are held to be unconstitutional. 17

(5th Cir. 1995). 18 Id. at 889.

8 support the bail-bond system.19 As the statutes charge only

administrative fees to defray the costs of the bail-bond system,

continue the sheriffs, such fees do not impermissibly impose court

costs; and for the same reason, such fees cannot violate the

excessive fines clause of the Eighth Amendment. Finally, the

sheriffs deny that (1) the statutes create any temptation to stack

charges, (2) such laws are unconstitutionally vague, or (3) they

effect a Fourth Amendment violation.

II. ANALYSIS

Louisiana’s bail-fee statutes do not fit snugly into any

established area of constitutional jurisprudence. This is quite

plausibly the reason why arrestees fired such a broadside of

constitutional claims at the sheriffs. As this is the third time

these types of statutes have been challenged in this Circuit, and

as the results of the previous efforts are in tension with each

other, we shall address each of arrestees claims. Even though, in

addition to the three laws at issue here, Louisiana’s statutory

framework provides multiple methods of funding its bail-bond

system, relevant Supreme Court precedent characterizing such

charges as reasonable administrative fees requires us to affirm the

district court on all matters, as we shall demonstrate.

A. STANDARD OF REVIEW

We review de novo a district court’s grant of summary

19

(1971).

9 judgment.20 Summary judgment is only appropriate if the pleadings

and the additional evidence presented show that there is no genuine

issue as to a material fact, such that the moving party is entitled

to a judgment as a matter of law.21 A dispute about a material fact

is ‘genuine’ if there is enough evidence for a reasonable jury to

return a verdict in favor of the non-moving party.22 Like the

district court, when deciding upon a motion for summary judgment,

we review all factual questions in the light most favorable to the

nonmovant.23 We also review de novo all questions of law.24

B. EIGHTH AMENDMENT EXCESSIVE BAIL

Arrestees only assert in passing that the bail-fee statutes

amount to “excessive bail”. It is nevertheless worthwhile to

explain the inapplicability of the Eighth Amendment’s Excessive

Bail Clause to better frame these statutes under a more general

due-process analysis.

The Supreme Court has not frequently considered the contours

of the Eighth Amendment’s proscription of excessive bail. In fact,

its application to the States has occurred only indirectly.25 The

20 Stults v. Conoco, Inc.

(5th Cir. 1996). 21 Fed. R. Civ. P. 56(c). 22 Stults,

. 23

24

. 25 Schilb v. Kuebel,

(1971) (finding that “the Eighth Amendment’s proscription of excessive bail has been

10 Court has explained, nonetheless, that a prohibition against

excessive bail exists even though there is no absolute

constitutional right to bail. In Stack v. Boyle, the Court held

that “[b]ail set at a figure higher than an amount reasonably

calculated [to ensure the defendant’s presence at trial] is

‘excessive’ under the Eighth Amendment.”26 In applying this

standard, we have found that requiring $750,000 bail from a

defendant deemed to be a flight risk is not excessive even though

the defendant is unable to pay the bail.27

More recently, in United States v. Salerno, the Supreme Court

acknowledged that, in addition to the authority to detain for

flight risk, the government may pursue “other admittedly compelling

interests through regulation of pretrial release.”28 The only

potential substantive limitation on the ability of the government

to restrict bail, the Court concluded, is that “the Government’s

proposed conditions of release or detention not be ‘excessive’ in

light of the perceived evil.”29

assumed to have application to the States through the Fourteenth Amendment”) (citations omitted); Baker v. McCollan,

, 145 n.3 (1979). 26

(1951). 27 United States v. McConnell,

(5th Cir. 1988). 28

(1987). 29

. The Court explained further that the excessiveness of the government’s action is determined as well by “the interest the Government seeks to protect by means of [its

11 The above-cited cases address whether the government can deny

bail altogether, or set it at a very high amount, for the reasons

it proffers. In contrast, this case concerns neither the State’s

attempt to deny bail nor an extremely high bail amount. Rather, it

concerns relatively modest fees imposed, over and above the amount

of bail, on all arrestees who exercise bail. Clearly, the sheriffs

are not advancing the compelling interests recognized by the Court

in the cases mentioned above. Rather, they reiterate that the fee

statutes are administrative charges imposed to cover costs of the

bail-bond system. The sheriffs argue additionally that the fees at

issue here are part of a more comprehensive statutory scheme that

imposes fees for other actions taken by parish sheriffs in the

criminal adjudication process.30

It is also clear that the restriction alleged in this case

does not implicate the kind of excessiveness of past decisions.

Rather, the charges are nominal, nondiscretionary, statutory fees

imposed on all arrestees. Indeed, the deprivation arrestees claim

here is more theoretical than actual. They have offered no hard

evidence that any arrestee who was otherwise able to make bail was

ever kept in jail because he or she did not, or could not, pay the

de minimis administrative fee. Presumably, if an arrestee is able

to secure bail, he or she would be able to pay the modest

restriction].”

30 La. Rev. Stat. Ann. 33:1432.

12 administrative fee required to exercise that right. And, even if

an arrestee were to remain in jail, it is still not clear that an

additional fifteen dollars would constitute excessive bail under

the Eighth Amendment. As a result, the interests at stake for both

the government and the individual are not easily taken account of

by the Salerno test.31

In sum, extant excessive-bail jurisprudence does not transfer

well to this issue. Salerno and previous cases have indicated that

the government must put forth a compelling interest to restrict or

deny bail. Here, there is neither a compelling purpose nor a

restriction on bail analogous to past instances. Rather there is

a largely theoretical, and effectively minimal, constraint on an

individual’s substantial liberty interest in release.32 Nothing in

31 An analysis of these facts in excessive bail terms would result in an awkward application of the Salerno standard. The “perceived evil” would be the lack of funding for the bail-bond system rather than the flight risk, or danger to the community, of an arrestee. Likewise, the restrictions on release are small fees required to exercise bail instead of a large amount of money, which effectively would prohibit release on bail. Even though the “evil” does not amount to the compelling interest the government has in preventing flight, the restraint imposed also pales in comparison to high bail amounts. 32 The “excessive bail” jurisprudence does illustrate the substantial interest an individual has in pretrial release from jail. The Salerno court reiterated that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Salerno,

. We have also recognized that interest, stating that “[d]ue to weighty liberty interests, the typical pretrial detainee is rarely detained prior to trial.” Hamilton v. Lyons,

(5th Cir. 1996). Thus, the need for a compelling purpose to restrict such release implies that an individual maintains a strong liberty interest.

13 these cases has suggested that a theoretically minor restriction

imposed for less than a compelling purpose, constitutes “excessive”

bail.

C. EIGHTH AMENDMENT EXCESSIVE FINES

There are two reasons why arrestees’ excessive-fines challenge

fails here. First, the Supreme Court has never directly applied

the Excessive Fines Clause of the Eighth Amendment to the several

states. Although scholars have suggested,33 and Justice O’Connor

has argued,34 that this clause applies to the states, to date no

such attribution has occurred. Second, even assuming that this

clause does apply to the states, the Court has concluded, and the

district court here recognized, that “the State does not acquire

the power to punish with which the Eighth Amendment is concerned

until after it has secured a formal adjudication of guilt in

accordance with due process of law.”35 Therefore, allegations of

punishment before adjudication of guilt must be addressed under the

33 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, §15.6, at 622 (1999) (arguing for the incorporation of this clause “because it is intertwined with the other two clauses of the Eighth Amendment and the Supreme Court has already regulated the imposition of fines on indigents through the equal protection clause of the Fourteenth Amendment”). 34 See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.,

(1989) (O’Connor, J. concurring in part, dissenting in part) (urging that the ‘excessive fines’ clause should apply to the states). 35 Ingraham v. Wright,

, 671 n.40 (1977).

14 Due Process Clause of the Fourteenth Amendment.36

The Excessive Fines Clause of the Eighth Amendment, like the

Cruel and Unusual Punishment Clause, is applicable only if the

statutory fees at issue constitute punishment.37 But because the

bail-fee statutes impose a charge prior to the adjudication of

guilt, the Excessive Fines Clause, even if it did apply to the

states, would not be the appropriate provision under which to test

these statutes. As a result, we must assess the capacity of the

bail-fee statutes to constitute punishment through the lens of the

Due Process Clause.

D. DUE PROCESS —— BAIL FEES AS PUNISHMENT

As neither the Excessive Bail Clause nor the Excessive Fines

Clause of the Eighth Amendment is applicable to the bail-fee

statutes challenged here, we must address the arrestees’ more

amorphous contention that the bail-fee statutes violate the

fundamental right of bail-eligible arrestees to exercise bail

without any additional financial impediment. Before addressing

this due process contention directly, however, we must explain and

36

37 The Court has found that the Excessive Fines Clause “limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” Austin v. United States,

(1993)(internal quotation marks omitted) (emphasis in original). Thus, whether the clause applies depends on whether it is possible to describe the fees imposed as punishment. See United States v. Bajakajian,

(1998) (finding that forfeitures are fines “if they constitute punishment for an offense”).

15 distinguish three other cases relevant to this analysis on which

the parties rely.

In Schilb v. Kuebel, the Court addressed a provision with

effects remarkably similar to Louisiana’s bail-fee statutes.38

Illinois had instituted bail reform to enable arrestees to avoid

the usurious fees of professional bail bondsmen. As part of this

reform program, arrestees had the option of paying the court a

deposit equal to 10% of their bail amount and thus obtaining

release. Later, when they appeared at their hearings, such

arrestees were refunded all but 10% (1% of the total bail amount)

of the deposit, which the court retained as an administrative fee.39

The Court in Schilb addressed only an equal protection

challenge and an argument that the fees constituted imposition of

court costs prior to conviction. In rejecting both claims, the

Court started from the premise that this charge “smacks of

administrative detail and of procedure and is hardly to be

classified as a ‘fundamental’ right or as based upon any suspect

criterion.”40 The Court then analyzed, under the appropriate

rational-basis standard, the fee retention in relation to the

ability of arrestees to put up the entire amount of bail and

thereby avoid fees entirely. Charging this fee to only those

38

(1971). 39

. 40

.

16 arrestees who elected to deposit an amount equal to 10% of their

bail, reasoned the Court, was rationally related to the State’s

interest in defraying expenses that are associated with bail-

jumping.41

The Court also distinguished this Illinois bail-fee statute

from the one considered in Giaccio v. Pennsylvania, wherein the

Court struck down a state law that allowed a jury to impose all

court costs on a defendant even though it had acquitted him.42 The

Schilb court reiterated that the Illinois charge was “an

administrative cost imposed upon all those, guilty and innocent

alike” who avail themselves of its benefit, which was distinct from

the “imposition of costs of prosecution upon an acquitted or

discharged criminal defendant,” illegal under Illinois law.43

Here, arrestees attempt to distinguish Schilb by highlighting

the fact that the statute there at issue was part of a legislative

movement to reform the Illinois bail-bond system and was but one

option from which arrestees could choose.44 Louisiana’s statutory

41

. When the state takes only 10% instead of the entire 100% of the bail amount, it has less security in the event of bail-jumping. It also may be more likely that bail- jumping would occur under the deposit plan because the arrested individuals would forfeit less financially if they failed to appear in court. 42

(1966). 43 Schilb,

. 44 Based on Augustus v. Roemer,

(E.D. La. 1991), arrestees argue that Schilb outlined a three factor test for such bail statutes: they must 1) create a voluntary option,

17 scheme, by contrast, is not as reform-minded as the Illinois

program. The ability to distinguish Schilb from the instant case

on the extent to which the fees charged go toward a program

designed to benefit arrestees by reducing reliance on bail bondsmen

is inconsequential, however, because the Louisiana bail-fee

statutes involve no classification. The fee provisions at issue

here apply to all arrestees, regardless of whether they enlist the

services of a bail bondsmen or use their own funds to pay bail.

Thus, the fact that the Louisiana statutes fail to classify dooms

arrestees’ equal protection claims and prevents them from

positively distinguishing their challenge from the facts of Schilb,

at least on equal protection grounds.45

In addition to the Schilb court’s view that bail fees are at

most administrative charges, which fail to invoke any fundamental

right, the sheriffs argue that Enlow v. Tishomingo County, in which

we upheld a statute similar to those at issue in this case, should

govern our conclusion here.46 At issue in Enlow was a Mississippi

statute that imposed on every arrestee exercising his bail option

2) be intended to reform the bail system, and 3) confer a benefit on arrestees. 45 As we will explain, the differences between reform- oriented bail programs and Louisiana’s scheme are likewise immaterial under the relaxed reasonableness standard that applies to due process challenges. 46

, 889 (5th Cir. 1995).

18 a fee equal to the greater of $20 or 2% of the value of the bond.47

The Enlow district court considered whether that statute violated

procedural due process standards by imposing a fee prior to

adjudication of guilt.48 Applying Mathews v. Eldridge,49 the trial

court stated that payment of a bond fee did not amount to a

heightened level of private interest.50 It reasoned that requiring

a bond fee was legally indistinguishable from the accepted practice

of requiring a detainee to post bond as a prerequisite for

release.51 The district court in Enlow also noted that sufficient

standards and procedures existed to facilitate refunds after

acquittal.52 Finally, in addressing the government’s administrative

interests, the district court relied on Schilb’s conclusion that

not all administrative fees are unconstitutional.53

We affirmed the Enlow trial court’s holding and reasoning on

47 Enlow v. Tishomingo County, Civ.A.No. EC 89-61-D-D,

, at *2 (N.D. Miss. Nov. 27, 1990). 48 Id. at *5-6. 49

(1976). 50 Enlow,

, at *5. 51

(citing Gladden v. Roach,

(5th Cir. 1989) (upholding the ability to impose bail for a non-jailable offense because the gravity of the offense does not alter the purpose of bail to make sure defendants appear at trial)). 52 Enlow,

, at *6. 53

19 appeal.54 After reviewing the briefs and record, we concluded that

“the district court’s opinion regarding the arrestees’

constitutional challenges to the statutes is well reasoned and

correctly decided.”55 Despite the absence of substantive

discussion, our affirmation of the district court’s holding governs

procedural due process challenges to similar bail-fee statutes,

unless they can be factually distinguished.

The only differences between the Mississippi statutes at issue

in Enlow and Louisiana’s bail-fee statutes that we consider today

are Mississippi’s use of a percentage fee rather than a flat fee,

and its statute’s provision for the State Auditor of Public

Accounts to promulgate regulations outlining a refund procedure,56

in contrast to the Louisiana statutes, which are more ambiguous in

their provisions for refunds. The first difference at best is

immaterial to a procedural due process analysis, because the

quantum of the Louisiana fees imposed, and thus the private

interest affected, is almost always going to be less than the

quantum of those imposed under the Mississippi scheme. The second

difference has an effect, if any, only when assessing the risk of

error in existing procedures.

Given Enlow’s conclusions that the private interests at stake

54 Enlow, 45 F.3d at 889. 55 Id. 56

(5), (6) (1990) (repealed by Act of March 12, 1990, Ch. 329, § 12, eff. October 1, 1990).

20 are not great, that Schilb specifically rejected a fundamental

rights implication of such fees, and that arrestees have failed to

demonstrate any actual deprivation, we too conclude that the

Louisiana fees do not trigger any heightened level of private

interest. Although the liberty interest of an arrestee in release

from jail may well be significant, any deprivation attributable to

these administrative fees is minimal, if not non-existent.

Arrestees have introduced no evidence to suggest that any arrestee

has ever been detained because of an inability to pay the bail fee.

Arrestees have also failed to articulate a clear argument that

these fees constitute a deprivation of a property interest without

due process of law.57

The second factor is the so-called risk of error. In Mathews,

the Court explained this factor as “the fairness and reliability of

the existing pretermination procedures, and the probable value, if

any, of additional procedural safeguards.”58 The district court

here found a low risk of erroneous deprivation because the

assessment of fees simply was based on the number of charges on

57 A recent district court case from Southern District of Ohio struck down a statute on procedural due process grounds that imposed a flat thirty dollar book-in fee to cover the administrative costs of confinement of pretrial detainees. Allen v. Leis, 213 F. Supp 2d 819, 831-34 (S.D. Ohio 2002). In conducting a Mathews analysis, the court held that this deprivation of property, like most, required notice and a hearing. Id. at 833-34. Here, however, Enlow has already concluded that the private interest is insignificant, and arrestees failed to pursue this line of argument. 58

(1976).

21 which an individual is arrested.59 The procedures for assessing

fees are indeed unambiguous; it is not clear, however, that this

completes the inquiry. This factor asks not only whether the state

will determine the correct amount of deprivation, but also whether

it will deprive the right individuals under the current procedures.

In Enlow, the district court concluded that the Mississippi

statute contained sufficient procedures and standards to facilitate

refunds to acquitted individuals. In contrast, the Louisiana

statutes as they now stand, impose a fee on every individual

arrested. Thus, the risk is fairly high that persons not

ultimately found guilty will have paid this fee. According to

Enlow, however, an adequate refund procedure would substantially

minimize the risk of this kind of error. Louisiana’s multi-sheriff

statute provides for a “waiver” of the bail fee by a judge if an

arrestee is acquitted or the charges dismissed. The Orleans parish

sheriff statute states that a judge may “suspend” this fee, but it

does not explain the grounds on which suspension is appropriate.

The Orleans clerk statue contains no procedure for obtaining a

refund on acquittal or dismissal of charges.

Arrestees argue that the waiver language provides an

insufficient procedure for obtaining a refund. Although the

Louisiana multi-sheriff statute appears to provide less detail on

59 Broussard v. Parish of Orleans, No. CIV.A..00-2318, CIV.A.00-3055, CIV.A.00-2056, CIV.A.00-3057,

, at *8 (E.D. La. Oct. 29, 2001).

22 refund procedures than does the Mississippi statute, this does not

mean that it is wholly inadequate. The record indicates that in at

least three parishes, refunds were made on request and that none

were denied. Vernon Parish, for instance, which appears to have

collected more bail fees than any other single parish, provided

refunds for all thirty-seven requests made. This kind of evidence

supports a conclusion that the multi-sheriff statute is capable of

adequately providing a refund.

The arrestees also invoke the St. Charles Parish policy of

making booking fees nonrefundable as evidence that the statutory

waiver language is inadequate. The St. Charles Parish policy,

however, is expressly provided for in Article 324(3) of the

Louisiana Code of Criminal Procedure.60 This provision authorizes

St. Charles Parish to collect a deposit calculated as a percentage

of the bail amount but to charge a fee no greater than fifteen

dollars for processing a bond, which is the amount that the sheriff

actually charged. As such, the procedure resembles the remedial

program scrutinized in Schilb. We conclude that the possibility of

a refund under the multi-sheriff statute sufficiently mitigates any

error that might occur beforehand in charging the fee.

The likelihood of refunds under the Orleans Sheriff and

Orleans Clerk statutes is not as certain. The Orleans Sheriff

statute only provides that a judge may suspend the fee requirement.

60 La. Code. Crim. Proc. Ann. art. 324(A)(3) (2002).

23 This language suggests that there is some process before a fee is

assessed, or at least some opportunity to request that a judge

suspend the fee. The clerk statute provides for no suspension or

waiver of this fee, but it imposes a fee of only five dollars, the

least among the bail-fee statutes.

Finally, weighed against the deprivation and the risk of error

is the administrative burden resulting from additional procedural

requirements and the government’s interests in conserving scarce

resources.61 This case deals with the imposition of nominal fees,

and the government has an interest in continuing to assess such

fees to support its bail-bond system. Greater process could

ultimately reduce funding of the bail-bond system by increasing

administrative costs and decreasing government revenue from such

fees, because more acquitted arrestees are likely to obtain

refunds.62 Insufficient funding could detrimentally affect a

sheriff’s ability to supervise release on bail, which in turn could

mean that fewer individuals actually secure release or that those

released find it easier to jump bail. Thus, the government has an

interest in the extant procedures to hold down costs and fund a

61 Mathews,

. 62 It would appear that the only effective procedures that would reduce deprivation and error would be the criminal adjudication itself or adequate refund procedures after acquittal. The former would not likely involve any additional procedures, but would delay the assessment of bail fees. The latter would allow bail fees to be assessed immediately, but might require more process later to dispense refunds.

24 sheriff’s office’s bail-bond system. The de minimis level of the

private interest, moreover, indicates that the government

administrative interest need not be great.

When we balance the Mathews factors, we conclude that none of

the bail-fee statutes violates procedural due process standards.

Although some risk of error exists for fees imposed under the

Orleans Sheriff statute and the Orleans Clerk statute, the private

interest at stake for all three statutes is minimal, as Enlow

instructs, and the government interests in funding the bail-bond

system and maintaining cost-effective procedures outweigh any error

that may result from inadequate refund procedures. Schilb’s

characterization of such charges as administrative fees lying

beyond the threat of heightened constitutional scrutiny again

influences our conclusion. It shows us that the government’s

administrative interest is reasonable and private deprivation so

minimal that the risk of acquitted individuals paying the bail fee

is an error without constitutional significance, akin to danum

absque injuria.

Having found arrestees’ equal protection and procedural due

process claims to be unavailing, we turn to their substantive due

process challenge. In contrast to the sheriffs’ reliance on Enlow,

arrestees ground their substantive due process argument on Augustus

v. Roemer, a 1991 federal district court case that addressed

another Louisiana statute, which imposed a charge on bail bondsmen

25 equal to the greater of $20.00 or 2% of the amount of the bond.63

In striking down these provisions, the trial court determined that

access to the bail system, once an arrestee was found eligible,

constituted a fundamental right that could not be constricted

absent a compelling governmental purpose.64 The district court was

not persuaded that raising revenue to run the criminal justice

system and to handle the administration of bond forfeitures

constituted compelling interests.65 The court distinguished Schilb

on the same grounds that arrestees rely on here: (1) The program

was voluntary; (2) it had a narrowly tailored statutory purpose;

and (3) it offered a benefit given in exchange for the fee.66

The district court’s fundamental rights analysis in Roemer

crumbles, however, under the weight of Schilb and other related

Supreme Court precedent which indicate that these fees do not

implicate fundamental rights and thus need only be reasonable.67

63

(E.D. La. 1991). In 1993, the Louisiana legislature repealed the statutes at issue in this case, but simultaneously enacted 22 L.S.A. R.S. §1065.1, which imposes an identical 2% fee state-wide. See La. Acts 1993, No. 834, §§5, 6, eff. June 22, 1993. 64 Augustus,

. 65

. 66

at 1470-71 & n.24. 67 Arrestees also attempt to analogize the bail-fee statutes to the poll tax on voting that the Supreme Court struck down in Harper v. Virginia State Bd. of Elections,

(1966). Harper, however, addressed the long-recognized fundamental right of voting, which the Court considered “preservative of other basic civil and political rights.” See

at 667 (quoting

26 In Bell v. Wolfish, the Supreme Court addressed a substantive due

process challenge to a condition of confinement of a pretrial

detainee.68 Although Bell addressed specific conditions of the

confinement itself rather than potential barriers to release, its

approach is instructive to our analysis of the arrestee’s due

process challenge to the Louisiana bail-fee statutes. The Court

first rejected the lower court’s conclusion that the “presumption

of innocence” creates a fundamental right to be free from

conditions of confinement, absent the government’s compelling

necessity.69 The Due Process Clause, it reasoned, provides “no

basis for application of a compelling-necessity standard to

conditions of pretrial confinement that are not alleged to infringe

any other, more specific guarantee of the Constitution.”70

Reynolds v. Sims,

(1964)). This case addresses a fee imposed upon arrestees which neither the Supreme Court nor we have found invokes a fundamental right. Instead, as we explain here, this type of charge requires only a reasonable relationship to a legitimate government purpose. 68

(1979). 69

. We have recognized the subsequent limits placed on Bell by the Supreme Court with regard to the level of culpability required to find a due process violation. See Ortega v. Rowe,

(5th Cir. 1986) (recognizing the Supreme Court opinions post-Bell that found negligent behavior insufficient to trigger due process protection, and as a result requiring intentional or knowing action to conduct a Bell analysis). These limits, however, are not relevant in this case because the mental state of the sheriffs is not in question. 70 Bell,

. As we explained supra, neither the Excessive Fines Clause, nor the Excessive Bail Clause, nor any other specific constitutional provision is applicable to the bail fee statutes.

27 Rather, the Court concluded in Bell that when the right being

challenged is not one that is expressly guaranteed in the

Constitution, the issue merely concerns “the detainee’s right to be

free from punishment,” which “does not warrant adoption of [a]

compelling-necessity test.”71 Using factors laid out in Kennedy v.

Mendoza-Martinez, the Court ruled that if there is no express

showing of an intent to punish, and “a particular condition or

restriction of pretrial detention is reasonably related to a

legitimate governmental objective, it does not, without more,

amount to ‘punishment.’”72 On the other hand, if there is no

reasonable relationship between the restriction and a legitimate

interest, such that the restraint is “arbitrary or purposeless ——

a court permissibly may infer that the purpose of the governmental

action is punishment....”73 Addressing the condition at issue in

Bell —— the practice of double-bunking at a pretrial detention

facility —— the Court concluded that the condition did not

constitute punishment because the practice was instituted for the

purpose of dealing with increased numbers of detainees and the

burden on the detainees was minor.74

Bell may not be directly applicable to this case, because the

71 Id. at 534. 72 Id. at 538-39 (citing Kennedy v. Mendoza-Martinez,

(1963)). 73 Bell,

. 74 See

.

28 bail-fee statutes might not constitute a condition or restriction

on confinement as envisioned by Bell and subsequent cases. Bell,

for instance, addressed the double-bunking of prisoners; and we

subsequently addressed denials of such items as visitation,

telephone access, recreation, mail, legal materials, and showers

for a three-day period.75 Other circuits applying Bell have

addressed such conditions as placement in solitary confinement

after attacking another inmate,76 administrative lockdown,77 and

administrative segregation.78 In short, these cases deal with more

restrictive confinement without release, not an added financial

burden to already-sanctioned release.

Nevertheless, Bell’s analytical framework, in addition to

Schilb’s conclusion that such fees appear to be administrative, is

helpful in resolving this case. Schilb instructs that this

category of fees fails to infringe any fundamental rights; Bell,

in turn, articulates a test that enables us to determine whether

such charges are reasonable administrative fees or impermissible

arbitrary punishment. Thus, the inquiry reduces to a

75 Hamilton v. Lyons,

(5th Cir. 1996). The court’s application of Bell in this case was slightly different because the plaintiff was a detained parolee instead of the average pretrial detainee.

. That distinction, however, does not affect the type of confinement restriction subject to the Bell standard. 76 Rapier v. Harris,

(7th Cir. 1999). 77 O’Connor v. Huard,

(1st Cir. 1997). 78 Stevens v. McHan,

(8th Cir. 1993).

29 reasonableness analysis.

Reasonableness depends on both the nature of the government

interest itself and the extent to which the statutes at issue

supports that purpose. Section 1432(9), the multi-sheriff statute,

imposes a fifteen dollar fine for “taking [an] appearance bond.”

The other two statutes impose fees for similar tasks. The district

court indicated that these statues “are linked to a legitimate

government purpose of providing funds for the administration of the

bail-bond system....”79 In their appellate brief, the sheriffs cite

several provisions of the Louisiana Code of Criminal Procedure in

support of their contention that the bail-bond system is entirely

dependent on the services of the sheriff for its proper operation.

In particular, the sheriffs emphasize that Article 344 of the

Louisiana Code of Criminal Procedure requires the sheriff to serve

notice on a defendant and his surety of a required appearance in

court.80

The connection between these fees and the bail-bond system in

particular is less than clear. The sheriffs seem to use Article

344’s requirement that sheriffs give notice to arrestees to appear

in court to demonstrate the significance of sheriffs in bail-bond

matters. But even this requirement of sheriffs’ time appears to be

79 Broussard v. Parish of Orleans, No. CIV.A..00-2318, CIV.A.00-3055, CIV.A.00-2056, CIV.A.00-3057,

, at *8 (E.D. La. Oct. 29, 2001). 80 La. Code Crim. Proc. Ann. art. 344 (2002).

30 overstated. Article 344 requires no additional notice when a bail

bond fixes the initial appearance date;81 it is only when the bond

does not fix such a date that additional notice required.82 Such

notice neither requires action by a sheriff nor personal service of

the notice. Rather, it states simply that an officer of the court

may deliver notice, or it may be sent via first class mail. 83 In

short, the sheriffs appear to exaggerate both the amount of work

involved and the time and effort required of sheriffs in this

process.

In addition, Louisiana already charges fees directly to bail

bondsmen. Section 1065.1 of Title 22 of the Revised Statutes

charges a 2% fee on “all commercial surety underwriters who write

criminal bail bonds in the state of Louisiana.”84 This statute

specifies that 25% percent of the amount collected goes to the

“sheriff’s general fund” and that other amounts go to the judicial

court fund, the district attorney’s operating fund and the Indigent

Defenders program. As a result, this provision seems to address

more directly the overall financing of the bail-bond system. It

specifies distribution of funds not just to the sheriff, but also

to the other groups that participate in the bail-bond system. In

81 Art. 344(A). 82 Art. 344(B). 83 Art. 344(B)(2). 84 La. Rev. Stat. Ann. § 22:1065.1 (2003).

31 short, there are reasons to question the extent to which the bail-

fee statutes at issue support the bail-bond system.

There are also reasons, however, that supply a rational

connection between these statutes and a legitimate government

purpose. Despite the sheriffs’ failure to elaborate on their

contention, we can imagine that bail fees help offset the costs of

paperwork and subsequent time required of sheriffs or clerks to

keep track of those arrestees who are out on bail. Arrestees have

presented no evidence to demonstrate that such fees are unnecessary

or to show that alone the funds received from the bail bondsmen tax

and from bond forfeitures are sufficient to support the bail-bond

system.

Furthermore, the broader statutory scheme of which these

provisions are a part provides additional support for the

characterization of these bail fees as reasonable administrative

charges. They are part of a comprehensive schedule of fees for

actions taken by a sheriff or clerk, including fees for serving a

subpoena duces tecum,85 for mileage when traveling outside the

Parish of Orleans,86 for executing warrants outside of the sheriff’s

parish,87 and for furnishing copies of indictments.88 Although the

85 La. Rev. Stat. Ann. § 33:1520(8) (2002). 86 § 33:1520(10). 87 La. Rev. Stat. Ann. § 33:1432(7) (2002). 88 La. Rev. Stat. Ann. § 13:1381(24) (1999).

32 bail-fee provisions may be unique as the only provisions that

theoretically separate an arrestee from his or her release from

confinement, the amount of the fee does not appear to be unduly

burdensome. As noted, the record is barren of evidence indicating

that a single arrestee had to remain in jail because he or she was

unable to pay the required fees, as distinguished from the bail

itself.

Even though the connection between the bail fees charged and

the administration of the bail-bond system may be somewhat tenuous,

especially when compared to reform schemes in other states,

arrestees have failed to present evidence sufficient to show that

the fees imposed are arbitrary. Thus, we must reject arrestees’

substantive due process challenge as well.89

E. OTHER CONSTITUTIONAL CLAIMS

1. Vagueness Challenge

Arrestees contend that the bail-fee statutes are void on

vagueness grounds, relying on Giaccio v. Pennsylvania.90 Arrestees

89 Arrestees also rely on the ancient case of State ex rel. Leche v. Waggner,

, 211 (La. 1890), which struck down a statute almost identical to the Orleans Clerk statute. Although to our knowledge no case has overruled Waggner, we discern two reasons why its holding does not govern here. First, the Waggner court failed to articulate the basis on which it found this statute offensive, which makes it impossible for us to determine whether it would even be persuasive precedent to our federal constitutional analysis. Second, Schilb and Bell have been decided subsequently by the United State Supreme Court, and quite clearly characterize such charges as administrative fees, which need only relate reasonably to a legitimate government interest. 90

(1966).

33 also attempt to use Giaccio to support their argument that the bail

fees constitute impermissible court costs.

In Giaccio, the Supreme Court addressed a Pennsylvania law

allowing juries that had acquitted a defendant to determine whether

he should nevertheless pay all court costs of the prosecution.91

The Court struck down the law as vague because it gave juries

“broad and unlimited power in imposing costs on acquitted

defendants,” such that it allowed them to use “their own notions of

what the law should be instead of what it is.”92

The bail fees charged here, in contrast, are not factually

akin to the costs of prosecution. Although both situations might

involve fees charged to individuals who are ultimately acquitted,

the Giaccio court found particularly problematic the unfettered

power of jurors to impose their own view of the law in assessing

fees. The Louisiana statutes here at issue are well-defined laws

which clearly outline the fees charged. The fees themselves are

small, and no judicial or executive officers are empowered to

charge fees greater than those that are statutorily allowed.

Neither are these fee statutes unconstitutionally vague. In

Buckland v. Montgomery County, a case factually more similar to

ours than is Giaccio, the Third Circuit addressed a vagueness

challenge to a Pennsylvania program identical to the Illinois

91

. 92

.

34 program considered in Schilb, except that the Pennsylvania statute

provided for retention of a “reasonable fee,” instead of a set 1%

of the total bail amount.93 The Buckland court rejected the

vagueness challenge, finding that fees were established in the

public record and were applied uniformly and with advance knowledge

to those using the court bail program.94 Further, the variation in

fees simply reflected the differing local conditions and expenses

of the different geographical areas in which they were imposed.95

Similarly, the fee amounts we consider today are stated clearly in

the public records. Even though sheriffs may employ different

practices for assessing such fees, there is no evidence that any

sheriff has charged more than the statutorily allowed amount.

2. Temptation to Stack Charges

Arrestees also assert that these statutes tempt sheriffs to

stack charges against arrestees in violation of their due process

rights. Arrestees rely on Ward v. Village of Monroeville96 and

Tumey v. Ohio97 to argue that these statutes give sheriffs the

partisan incentive to make unnecessary charges to maintain

sufficient funding for their respective departments. Conceding

93

, 149 (3rd Cir. 1987). 94

95

96

(1972). 97

(1927).

35 that Ward and Tumey applied to judges and focused on the

requirement that they remain impartial, arrestees nevertheless

insist that this standard should apply to the Louisiana sheriffs

and clerks as well, and attempt —— unsuccessfully —— to distinguish

our holding in Brown v. Edwards.98 In making their argument,

arrestees seem to presuppose that the fees are analogous to

punishment or to a determination of guilt before trial. That is

the basis on which they argue that sheriffs impermissibly control

executive and judicial functions, in violation of due process. As

the preceding analysis has illustrated, however, imposing fees does

not constitute “punishment” under Bell; thus arrestees’ reliance on

Ward and Tumey is unavailing.

The district court’s dismissal of this challenge is sound. It

correctly noted that Ward and Tumey are inapplicable to this case,

because the focus of those cases was on individuals who exercised

a judicial function. “[T]he test is whether [the individual’s]

situation is one ‘which would offer a possible temptation to the

average man as a judge to forget the burden of proof required to

convict the defendant, or which might lead him not to hold the

balance nice, clear and true between the State and the

accused....’”99

In Brown v. Edwards, we reiterated the significance of the

98

(5th Cir. 1984). 99 Ward,

(citing Tumey,

) (emphasis added).

36 100 function exercised in determining a violation of due process.

Rejecting a challenge to a statute that enables Mississippi

constables to collect ten dollars for each charge that results in

a conviction, we emphasized that “an arrest by a constable is not

judicial action, but action under executive or legislative

authority.”101 We concluded, moreover, that peace offers are not

expected to exercise the same level of impartiality and neutrality

as judges and magistrates.102

Brown is controlling here. Neither the sheriffs nor the

clerks exercise, or are supposed to exercise, a judicial function.

Thus, like constables, they are not expected to maintain a level of

impartiality equal to that expected of judges. Consequently, a

decision to make multiple charges and impose concomitant fees would

not conflict, at least under relevant precedent, with any budgetary

control they might maintain. As in Brown, arrestees have not

challenged the lawfulness of the original arrests. Assuming the

existence of valid probable cause, which arrestees give us no

reason to question, the sheriffs are simply carrying out their

statutory prerogative of assessing fees based on the charges

100

. 101

102

Arrestees incorrectly argue that Brown stands for the proposition that no temptation to stack charges exists when a constable only received fees on successful charges and after conviction. The Brown court, however, grounds much of its holding in the fact that constables are not judges, nor do they exercise a judicial function.

37 brought.

3. Fourth Amendment Challenge

Arrestees finally assert that being charged fees in

conjunction with bail release constitutes an unreasonable seizure

of their person and property under the Fourth Amendment. They cite

no cases to support this proposition; instead, they would liken the

bail-fee requirement to the crimes of aggravated kidnapping and

extortion, which is obviously inapt.

In rejecting this challenge, the district court relied on the

facts that arrestees neither challenged the validity of their

arrest and initial detainment, nor put forth any evidence that in

fact they were unreasonably detained as a result of the bail fee.103

We agree with the reasoning and holding of the district court on

this issue. As the arrestees do not challenge their initial arrest

and confinement, i.e. they do not allege that the sheriffs lacked

warrants or probable cause, and as there is no evidence of

unreasonable delay in release, there simply is no demonstration of

a Fourth Amendment problem. Thus, there is neither legal nor

factual support for arrestees’ Fourth Amendment argument.

III. CONCLUSION

We discern no merit in any of arrestees’ myriad arguments

attacking the constitutionality of the several Louisiana bail-fee

103 Broussard v. Parish of Orleans, No. CIV.A.00-2318, CIV.A.00-3055, CIV.A.00-3056, CIV.A.00-3057,

, at *8 (E.D.La. Oct. 29, 2001).

38 statutes here at issue. Although the facts of this case differ

slightly from those addressed in Schilb and Bell, their holdings

nevertheless adequately frame our approach to this case. As bail-

fee statutes, these provisions are relegated to the mundane realm

of administrative concern, never mounting the high pedestal of the

kind of scrutiny required for fundamental rights. Furthermore,

even if these fees were to constitute restrictions on confinement,

they would only need to be reasonably related to a legitimate

government purpose. Even though the sheriffs’ reasons for charging

these fees are relatively weak, we nonetheless find that such fees

relate sufficiently to the bail-bond system to keep them from being

arbitrary. Finally, arrestees have failed to adduce evidence that

any among them was actually detained for a longer period of time

because of such fees, or that such fees lack any reasonable

connection to administration of the bail-bond system, without which

all their claims must fail. For the foregoing reasons, therefore,

the judgment of the district court is, in all respects,

AFFIRMED.

39