Legal Ethics

Lawyer can be sanctioned for frivolous challenge to bail reform, 10th Circuit rules

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Gavel and bail money

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Updated: A federal appeals court has agreed to toss a challenge to New Mexico bail reform rules that discourage the use of money bail.

The 10th U.S. Circuit Court of Appeals at Denver upheld dismissal of the suit as well as a sanction of nearly $15,000 against the lawyer for the plaintiffs. Courthouse News Service covered the Feb. 25 decision.

Previously, judges had relied on a set schedule to set bail that was based on the severity of the charged offense. The New Mexico Supreme Court struck down that system in 2014.

Voters ratified a constitutional amendment in November 2016 that said individuals who are not dangerous or a flight risk should not be detained before trial solely because they are financially unable to post bond.

Implementing rules by the New Mexico Supreme Court said defendants eligible for pretrial release should be freed on personal recognizance or on an unsecured appearance bond—unless the court makes findings why those conditions won’t reasonably ensure the defendant’s appearance.

The plaintiffs had challenged the rules and a risk assessment tool adopted by two courts to assess the likelihood that a defendant will fail to appear in court or will commit new crimes while on release. The risk assessment test is known as the Arnold Tool.

The plaintiffs contended that the new rules and the Arnold Tool violated the excessive bail clause of the Eighth Amendment by taking secured bonds off the table as an option. They also alleged a due process violation on the ground that nonexcessive money bail is fundamental to the nation’s scheme of ordered liberty.

The plaintiffs included the Bail Bond Association of New Mexico, five New Mexico state legislators and a woman who was denied cash bail before her arraignment.

The lawsuit defendants included the New Mexico Supreme Court and the courts that adopted the Arnold Tool, as well as New Mexico Supreme Court justices and the chief judges of the courts using the Arnold Tool.

The trial court dismissed the suit and granted sanctions because there was no reasonable basis to think the defendants’ immunity could be overcome and no reasonable basis to think the bail group and legislators had standing. The trial judge required plaintiffs lawyer A. Blair Dunn to pay a $14,868 sanction.

The sanction was imposed under Rule 11 of the Federal Rules of Civil Procedure, which requires pleadings to be justified by existing law or by a nonfrivolous argument to extend, reverse or modify the law.

The 10th Circuit affirmed in an opinion by Circuit Judge Mary Beck Briscoe. The plaintiffs’ standing arguments “ignored controlling precedent,” and their immunity arguments “suffer from similar infirmities,” the court said.

“To bring it all together,” Briscoe wrote, the woman denied cash bail “is the only plaintiff with standing, but defendants are immune to her claims, so we do not address the merits of [the plaintiff’s] claims that the 2017 rules and the Arnold Tool violate the Eighth and 14th amendments.”

Dunn told the ABA Journal that he is considering a request for a rehearing by the 10th Circuit panel or by the en banc court. If that fails, he expects to ask the U.S. Supreme Court to hear the case, although the cert petition could be limited to the Rule 11 issues.

Rule 11 requires only that you have a plausible basis for your arguments, not that your arguments must be correct, he said. He and his co-counsel made good faith arguments on standing and would have made more extensive arguments on judicial immunity if they had received permission to lift page and word limits, he told the ABA Journal.

There is some case law holding there is no judicial immunity in a case such as this because the courts were not performing a judicial function, he said.

In Dunn’s view, judges are “openly upset” about being sued, and that sentiment seems to come through in the opinion.

He also questions why he was sanctioned but his three co-counsel weren’t. “There’s really no discerning why I got singled out,” he said.

He acknowledges doing media interviews after the suit was filed and also writing a letter to a legislative committee explaining why the suit was filed. But the court didn’t cite either of those differences in sanctioning only him, Dunn said.

There are some “big holes” in the Rule 11 portion of the opinion, he said.

Updated at 1:40 p.m. to include comment from Dunn.

See also:

ABA Journal: “Bail industry battles reforms that threaten its livelihood”

ABA Journal: “Kentucky tests new assessment tool to determine whether to keep defendants behind bars”

ABA Journal: “Court systems rethink the use of financial bail, which some say penalizes the poor”

ABA Journal: “Risk-assessment algorithms challenged in bail, sentencing and parole decisions” “ABA weighs in on California Supreme Court case affecting state’s new bail reform law”

ABA Journal: “Boosting Bail Reform: ABA urges Congress to limit use of cash bail”

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