This article appeared in the October 2018 issue of the Georgia's Cities newspaper.
aurice Walker was arrested by city police on Sept. 3, 2015 for being a pedestrian under the influence of alcohol. Because he was homeless and indigent, Walker couldn’t pay the standard $160 bail to secure his release and was jailed pending the next municipal court session. The city of Calhoun’s municipal court was held each Monday but because the upcoming Monday was Labor Day, Walker would not have a bail hearing for eleven days. Walker sued after five days in jail alleging that the city’s bail policies violated the equal protection and due process guarantees of the Fourteenth Amendment of the United States Constitution. He argued that the policies were unconstitutional because people who could not afford bail remained in jail and were treated differently than those who could afford bail.
After suit was filed, the city’s municipal court adopted a new Standing Bail Order, which set cash bail for state offenses adjudicated in municipal court at the amount of the possible fine for the offense plus applicable surcharges and provided an alternative to cash bail allowing use of a driver’s license as collateral. For those who could not make bail, the new order required that they receive a bail hearing in municipal court within 48 hours. At that hearing, the municipal court would determine whether the accused was indigent and eligible for release on personal recognizance without bail. The court’s new Standing Bail Order also provided that anyone arrested on an ordinance violation would be released on an unsecured bond. An unsecured bond requires no deposit of cash or collateral with the court but means the accused will be assessed the bail schedule amount for the offense if the accused doesn’t appear in court.
The federal district court issued an injunction ordering the city to establish constitutional post-arrest procedures. On appeal, the Eleventh Circuit Court of Appeals vacated the injunction holding that the trial court’s order lacked specificity and returned the case to the district court. The district court again issued an injunction against use of the municipal court’s Standing Bail Order and held that the order was unconstitutional. The district court directed the city to implement a process allowing each person without money for bail to be released based on an affidavit signed by that person. The affidavit would include information on the person’s finances, and a municipal official would have to evaluate the affidavit within 24 hours to determine if the person was indigent and had to be released on their own recognizance or an unsecured bond. The city appealed this new injunction.
The Eleventh Circuit Court of Appeals held that the city itself could be held liable for the bail schedule used in municipal court because the city governing body has the authority to directly regulate bail policies in municipal court. The appellate court rejected the city’s argument that Georgia law placed authority to set bail policy exclusively with the judge of the municipal court. Relying upon Georgia’s Uniform Municipal Court Rules and existing municipal ordinances directing police to release on their own recognizance people charged with a traffic violation, the court found that the state statute authorizing judges to establish bail schedules did not give them the exclusive power to do so.
But the appellate court rejected the district court’s conclusion that the city’s Standing Bail Order was unconstitutional because indigent defendants had to wait for a bond hearing before being released. The court rejected the idea that different treatment by the government based on wealth is the same as different treatment by the government based on race, sex or religion. The court refused to apply the higher standard of review for discrimination based on race, sex or religion to distinctions made on the basis of wealth. In the view of the Eleventh Circuit Court of Appeals, in evaluating the city’s Standing Bail Order, the district court should have looked at whether the city provided Walker “a prompt process by which to prove his indigency and to gain release.” Looking at the city’s Standing Bail Order, the court held that the city’s process is presumed to be constitutional if a determination on the ability to post cash bail is made within 48 hours of arrest. The appellate court also held that the district court overreached in substituting an affidavit-based process for determining inability to pay for the city’s preferred method, a hearing in municipal court.
Although the Eleventh Circuit held the city’s new Standing Bail Order is constitutional, it recognized that the district court was not wrong to order use of the city’s original bail schedule. It also reproached the city for establishing the new Standing Bail Order by having it issued by the city’s chief municipal court judge rather than by having the city council adopt an ordinance. The appellate court returned the case to the district court for further proceedings.
Avoiding Similar Lawsuits in Your City
Have your chief municipal court judge and city attorney review bail procedures and schedules used in the city’s municipal court. For minor offenses, it may be efficient and effective not to require bail at all but to allow everyone to be released on their own recognizance. Some cities use automated systems to remind municipal court defendants of when they are expected in court. Make sure people who cannot afford bail have an opportunity within 48 hours of arrest to prove they are indigent and be released.
Consider which offenses warrant arrest and which do not. Being jailed can result in a person losing their job and this can be devastating for someone living paycheck-to-paycheck as well as for all who depend on that person. Which offenses truly merit arrest and detention? What best serves your city? Remember the sole purpose of law enforcement and municipal court is to enhance public safety in the city—not to raise revenue.
For more information on municipal courts and how to operate them effectively and legally, see GMA’s publication “Municipal Courts: A Guide for Municipal Elected Officials
," or complete the courses on municipal courts
offered by the Harold F. Holz Municipal Training Institute.