No.
IN THE
SUPREME COURT OF THE UNITED STATES
—————♦—————
MOLLY MARIE TRINEN, on her own behalf and
on behalf of a class of others similarly situated,
v.
Petitioner,
CITY OF AURORA,
a Colorado municipal corporation,
Respondent.
—————♦—————
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Donald T. Trinen
Hart & Trinen, LLP
1624 Washington St.
Denver, CO 80203
(303) 839-0061
[email protected]
Attorney for Petitioner
i
QUESTION PRESENTED
Does a municipal ordinance imposing a nonrefundable $50 fee on 100% cash bail bonds violate
the later-acquitted defendant’s fundamental right to
be free of punishment in the absence of a
determination of guilt?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ....................................i
TABLE OF AUTHORITIES ................................iv
TABLE OF APPPENDICES ................................vi
OPINION BELOW ................................................1
JURISDICTION ....................................................1
CONSTITUTIONAL PROVISION
INVOLVED ......................................................2
STATEMENT OF THE CASE ..............................2
REASONS FOR GRANTING THE WRIT ............4
CONCLUSION ....................................................11
TABLE OF APPPENDICES
Tenth Circuit Court of Appeals Order
and Judgment dated January 31, 2012 .... App. 1
District Court Memorandum Opinion and
Order dated August 9, 2011 ...................... App. 4
District Court Judgment dated August
12, 2011..................................................... App. 11
iii
TABLE OF AUTHORITIES
Cases:
Page
Bell v. Wolfish, 441 U.S. 520 (1979) ............. passim
Broussard v. Parish of Orleans, 318 F.3d
644 (5th Cir. 2003) ..............................................7
Buckland v. Montgomery County of
Commonwealth of Pennsylvania, 812 F.2d
146 (3d Cir. 1987) .................................................7
Chapman v. United States, 500 U.S.
453 (1991) ...........................................................5
Enlow v. Tishomingo County, Mississippi,
45 F.3d 885 (5th Cir. 1995) .................................7
Fuller v. Oregon, 417 U.S. 40 (1974) .......................8
Giaccio v. Pennsylvania, 382 U.S. 399
(1966) ..................................................................7
Olson v. James, 603 F.2d 150 (10th Cir.
1979) ...................................................................8
Palko v. Connecticut, 302 U.S. 319 (1937) .............4
Payton v. County of Carroll, 473 F.3d 845
(7th Cir. 2007) ......................................................7
Poe v. Ullman, 367 U.S. 497 (1961) ........................4
Schilb v. Kuebel, 404 U.S. 357 (1971) ............passim
iv
Cases (cont’d):
Page
Snyder v. Massachusetts, 291 U.S. 97
(1934) .................................................................. 4
Stack v. Boyle, 342 U.S. 1 (1951) ............................ 6
State v. Konigsberg, 164 A.2d 740
(N.J. 1960) ........................................................... 6
United States v. DeBrouce, 652 F.2d 383
(4th Cir. 1981) ...................................................... 8
United States v. Palmer, 809 F.2d 1504
(11th Cir. 1987) .................................................... 8
United States v. Pommerening, 500 F.2d
92 (10th Cir. 1974) ................................................ 6
Washington v. Glucksberg, 521 U.S. 702
(1997) .................................................................. 5
Constitutional Provisions:
U.S. Const. amend. XIV .................................passim
Statutes and Ordinances:
28 U.S.C. §1918 ....................................................... 8
29 U.S.C. §206 ......................................................... 9
42 U.S.C. §1983 ..............................................passim
Colo.Rev.Stat. §13-10-113 ....................................... 8
Colo.Rev.Stat. §16-18-101 ....................................... 8
Aurora Code of Ordinances §§50-34 and
50-38 .................................................................... 2
v
Other Authorities:
Page
Magna Charta, Chapt. 29 (1215), from
Thomas
M.
Cooley,
Constitutional
Limitations 435 (4th ed., Little, Brown
1878), citing 4 William Blackstone,
Commentaries 424 ................................................. 10
1
PETITION FOR WRIT OF CERTIORARI
Petitioner Molly Marie Trinen, on her own
behalf and on behalf of a class of others similarly
situated, petitions the Court for a writ of certiorari
to the United States Court of Appeals for the Tenth
Circuit.
—————♦—————
OPINION BELOW
The opinion of the United States Court of
Appeals for the Tenth Circuit (Kelly, Murphy, and
Holmes, JJ.) is not reported and is reproduced in the
Appendix (App. 1). The final judgment of the United
States District Court for the District of Colorado
(Kane, J.) is not reported and is reproduced in the
Appendix (App. 11). The Memorandum Opinion and
Order of the United States District Court for the
District of Colorado is not reported and is reproduced
in the Appendix (App. 4).
—————♦—————
JURISDICTION
The judgment of the United States Court of
Appeals for the Tenth Circuit was entered on
January 31, 2012. (App. 1). The jurisdiction of this
Court is invoked under 28 U.S.C. §1254(1).
—————♦—————
2
CONSTITUTIONAL PROVISION INVOLVED
U.S. Const. amend. XIV, §1:
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
process of law . . ..
—————♦—————
STATEMENT OF THE CASE
Sections 50-34 and 50-38 of the Aurora Code of
Ordinances allow respondent City of Aurora
(“Respondent”) to impose a $50 fee on persons
arrested for municipal code violations who are
released on 100% cash bail (“the $50 Bail Bond
Fee”). No provision is made for refund of the $50
Bail Bond Fee if the arrestee is acquitted or if the
charges are dismissed.
Petitioner Molly Marie Trinen (“Petitioner”)
was arrested and charged with an ordinance
violation - theft. Petitioner posted cash bail of $300,
plus the $50 Bail Bond Fee, and was released.
After Petitioner had pled not guilty and
Respondent had been allowed to amend the
complaint to add two additional ordinance violations,
trial was had to a jury and Petitioner was acquitted
of all charges. Petitioner thereupon made demand
3
on Respondent for refund of the $50 Bail Bond Fee,
which was refused.
Thereafter, Petitioner brought this 42 U.S.C.
§1983 action on her own behalf and on behalf of all
other municipal defendants who had paid the $50
Bail Bond Fee and been acquitted or had their
charges dismissed.
Both Petitioner and Respondent moved for
summary judgment, with Petitioner contending that
imposing a non-refundable bail bond fee on 100%
cash bonds posted by acquitted defendants deprives
them of their Fourteenth Amendment right to
substantive due process; and with Respondent
contending that such fees are constitutionally
permissible under Schilb. The District Court denied
Petitioner’s motion and granted Respondent’s,
concluding that Schilb’s ten-percent-bond-option fee
approval mandated approval of the $50 Bail Bond
Fee (App. 10).
The Tenth Circuit affirmed, adopting the
District Court’s reasoning in toto (App. 3 – “For
substantially the reasons stated in the district
court’s (summary judgment) order, we affirm the
district court’s judgment”).
—————♦—————
4
REASONS FOR GRANTING THE WRIT
The Tenth Circuit said that imposing a
nonrefundable cash bail bond fee on an
acquitted defendant is constitutional because
this Court supposedly said so in Schilb v.
Kuebel, 404 U.S. 357 (1971).
However, the
Schilb facts were not the facts here; and the
Schilb holding does not justify, much less
mandate, the result here.
This Court should clarify Schilb by plainly
declaring that the government’s costs of
effecting cash bail (whether denominated
“administrative fees”, “prosecution costs”, or
otherwise) may not be imposed on an acquitted
defendant - as obliging an acquitted defendant
to, in effect, pay the state to prosecute him
deprives him of his fundamental right to be
free of punishment in the absence of a
determination of guilt. (Bell v. Wolfish, 441 U.S.
520, 535 (1979)). Certiorari should be granted
because
the
Tenth
Circuit’s
holding
misconstrues Schilb and violates Bell.
1. Fundamental rights are those rights that
are based on “some principle of justice so rooted in
the traditions and conscience of our people as to be
ranked as fundamental.” Snyder v. Massachusetts,
291 U.S. 97, 105 (1934). Such rights include those
“which belong . . . to the citizens of all free
governments, for the purposes of securing which
men enter into society.” Poe v. Ullman, 367 U.S.
497, 541-42 (1961) (Harlan, J., dissenting). They are
5
rights “ ‘implicit in the concept of ordered liberty’,
such that ‘neither liberty nor justice would exist if
they were sacrificed’.” Washington v. Glucksberg,
521 U.S. 702, 721 (1997), citing Palko v. Connecticut,
302 U.S. 319, 325, 326 (1937).
2. Fundamental rights are protected under the
substantive component of the Due Process Clause of
the Fourteenth Amendment, and deprivation of such
a right is remediable by an action for damages under
42 U.S.C. §1983. Glucksberg, 521 U.S. at 719, 721
(the Due Process Clause “protects individual liberty
against certain government actions regardless of the
fairness of the procedures used to implement them”;
and “the Fourteenth Amendment forbids the
government to infringe fundamental liberty interests
at all, no matter what process is provided, unless the
infringement is narrowly tailored to serve a
compelling state interest”) (emphasis in original).
3. Among the fundamental rights is the right
to be free of criminal punishment in the absence of
an adjudication of guilt. Bell v. Wolfish, 441 U.S.
520, 535 (1979) (“[U]nder the Due Process Clause, a
detainee may not be punished prior to an
adjudication of guilt in accordance with due process
of law.”); and Chapman v. United States, 500 U.S.
453, 465 (1991) (“Every person has a fundamental
right to liberty in the sense that the Government
may not punish him unless and until it proves his
guilt beyond a reasonable doubt at a criminal trial
conducted in accordance with the relevant
constitutional guarantees.”).
6
4. Criminal proceeding costs are “penal”.
United States v. Pommerening, 500 F.2d 92, 102 (10th
Cir. 1974) (“Statutes relating to taxable (criminal)
costs are to a degree penal in character”) – and the
state’s costs associated with affording criminal
defendants their constitutional rights, including the
right to bail,1 are criminal proceeding costs. Schilb,
404 U.S. at 378 (Douglas, J., dissenting) (“The costs
of administering the bail system occur, by definition,
only during the course of criminal proceedings. They
are as much an element of the costs of conducting
criminal cases as the prosecutor’s salary, the fee for
docketing an appeal, or the per diem paid to jurors”).
5. However,
according
to
the
District
Court/Tenth Circuit, Schilb characterized the bail
charge there at issue as a non-punishment (and thus
constitutional) “administrative cost”. (App. 10 –
“[Petitioner’s] argument necessarily fails because the
Supreme Court has found that bail bond fees are
administrative costs – not costs of prosecution.”). Of
course, to the payor defendant the label means
nothing. All he knows is that he is out the money.
1
Ironically, one of the primary purposes of bail is to prevent
the infliction of punishment before guilt is established.
Stack v. Boyle, 342 U.S. 1, 4 (1951) (“Unless this right to
bail before trial is preserved, the presumption of innocence,
secured after centuries of struggle, would lose its
meaning”); and State v. Konigsberg, 164 A.2d 740, 743 (N.J.
1960) (“Release on bond is a concomitant of the
presumption of innocence. Refusal of freedom in violation
of our organic law would constitute punishment before
conviction, a notion abhorrent to our democratic system”).
7
6. Labels aside, Schilb did not involve a 100%
cash bail bond, much less a 100% cash bail bond
posted by a later-exonerated defendant. Rather, the
Illinois scheme in Schilb offered defendants an
option to post ten percent of the total bond amount
in exchange for a one percent fee. Thus in Schilb
Illinois
offered
defendants
a
benefit
not
constitutionally required in exchange for a fee not
constitutionally prohibited. At all times a defendant
remained free to post 100% of the bond amount in
cash with no fee. Respondent imposes the $50 Bail
Bond Fee in addition to the full bail amount - which
fee is nonrefundable upon charge dismissal or
acquittal. Such a scheme was not addressed by
Schilb, much less approved by it.
7. To the knowledge of undersigned counsel the
District Court/Tenth Circuit’s determination in this
case is the only one in the history of the United
States approving the imposition of prosecution costs
(no matter how denominated) on an acquitted
defendant - and specifically the only decision
approving a nonrefundable fee on a 100% cash bail
bond posted by an acquitted defendant.
8. No other federal appellate court has
indicated that it would approve a fee being charged
on a 100% cash bail posted by a later-exonerated
defendant. Giaccio v. Pennsylvania, 382 U.S. 399,
404 (1966) (statute allowing costs to be imposed
against a defendant found “semi-guilty” struck down
as vague); Payton v. County of Carroll, 473 F.3d 845,
851 (7th Cir. 2007) (fee on percentage bail option
approved where bond could be posted in full without
8
fee);
Buckland
v.
Montgomery
County
of
Commonwealth of Pennsylvania, 812 F.2d 146, 149
(3d Cir. 1987) (fee imposed with respect to
Pennsylvania 10% bail option approved, where no fee
imposed with respect to 100% cash bail posting);
Broussard v. Parish of Orleans, 318 F.3d 644, 647
(5th Cir. 2003) (Louisiana bail bond fee approved
where statute provided for fee refund if the
defendant acquitted or charges dismissed); Enlow v.
Tishomingo County, Mississippi, 45 F.3d 885, 889
(5th Cir. 1995) (Mississippi statute providing for
imposition of bail bond fee constitutional where
statute provided fee refund on acquittal (for
statutory refund provision citation see district court
disposition at Enlow v. Tishomingo County, No. EC
89-61-D-D, 1990 WL 366913, at *2 (N.D. Miss. Nov.
27, 1990))); Olson v. James, 603 F.2d 150, 155 (10th
Cir. 1979) (Kansas attorney fee repayment statute
held unconstitutional as denying equal protection, in
part because it did not exempt acquitted
defendants); Fuller v. Oregon, 417 U.S. 40, 50 (1974)
(Supreme Court approves Oregon statute exempting
from attorney fee repayment obligation those
defendants who are acquitted); United States v.
DeBrouce, 652 F.2d 383, 391 (4th Cir. 1981)
(defendant cannot be charged with prosecution costs
under 28 U.S.C. §1918 with respect to acquitted
counts); and United States v. Palmer, 809 F.2d 1504,
1509 (11th Cir. 1987) (costs may not be taxed under
26 U.S.C. §7203 as to acquitted counts). See also
Colo.Rev.Stat. §16-18-101 (“the costs in criminal
cases shall be paid by the state . . . when the
defendant is acquitted . . .”); and Colo.Rev.Stat. §1310-113(3) (“The municipal judge is empowered in his
9
discretion to assess costs . . . against any defendant
who . . . is found guilty”).
9. One of the post-Schilb federal circuit cases
characterized the $15 bail fee there at issue as “de
minimus” (Broussard, 318 F.3d at 651). It should
not be constitutionally permissible for the state to
victimize citizens so long as the amount is small.
Nevertheless, from the perspective of many of the
payors of the $50 Bail Bond Fee, the amount is
substantial - both in relative and absolute terms.
Thus here the $50 Bail Bond Fee represented almost
17% of the $300 principal bond amount; and for
many payors $50 may well amount to a day’s pay.2
10. This case is not Schilb. In Schilb Illinois
was helping defendants by offering an extra service
for an extra fee. Here Respondent is simply helping
Respondent. Respondent is providing no new benefit
to defendants, but is instead simply making the old
benefit, the required benefit, more costly. Thus
Respondent is not following Schilb, it is perverting
it.
2
$7.25 current federal minimum hourly wage (29 U.S.C.
§206(a)(1)(C)) x 8 hours equals $58.00, minus an estimated
ten percent tax burden of $5.80, equals $52.20.
10
11. Requiring an innocent citizen to pay the
government to prosecute him is obnoxious to an
ancient principle on which this country is based:
No corpus liberi hominis capiatur nec
imprisonetur nec utlagetur nec exuletur,
nec aliquo modo destruatur, nec rex eat
vel mittat super eum vi, nisi per judicium
parium suorum, vel per legem terrae. No
freeman shall be taken or imprisoned or
disseised or outlawed or banished, or in
any ways destroyed, nor will the king
pass upon him, or commit him to prison,
unless by the judgment of his peers, or
the law of the land.
(Magna Charta, Chapt. 29 (1215), from Thomas M.
Cooley, Constitutional Limitations 435 (4th ed., Little,
Brown 1878), citing 4 William Blackstone, Commentaries 424).
Government schemes like Respondent’s to mulct
innocent citizens ensnared in their judicial
machinery need to be nipped in the bud, lest Justice
Douglas’ prophecy come to pass:
. . . I could see no stopping point and we
might be left with a system in which an
acquittal might be nearly as ruinous to
the defendant as a conviction.
(Schilb, 404
dissenting).
U.S.
at
378-379)
(Douglas,
J.,
11
That an acquitted defendant should be obliged to pay
the government anything to have exercised his
constitutional right to post cash bail is wrong, unAmerican, and unconstitutional – and this Court
should say so.
—————♦—————
CONCLUSION
The petition for writ of certiorari should be
granted.
Respectfully submitted,
Donald T. Trinen
Hart & Trinen, LLP
1624 Washington St.
Denver, CO 80203
(303) 839-0061
[email protected]
Attorney for Petitioner
App. 1
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________________
)
MOLLY MARIE TRINEN, )
on her own behalf and
)
on behalf of a class of others )
similarly situated,
)
)
No. 11-1396
Plaintiff-Appellant,
)
(D.C. No.
v.
) 1:11-CV-00152-JLK)
)
(D. Colo.)
CITY OF AURORA,
)
a Colorado municipal
)
corporation,
)
)
Defendant-Appellee. )
ORDER AND JUDGMENT
Before KELLY, MURPHY, and HOLMES,
Circuit Judges
Molly Marie Trinen appeals the district court’s
__________________
* After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not
materially assist the determination of this appeal. See
Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G).
The case is
therefore ordered submitted without oral argument. This
order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value
consistent with Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.
App. 2
grant of summary judgment in favor of the City of
Aurora (Aurora) on her substantive due process
claim under 42 U.S.C. §1983. Exercising jurisdiction
under 28 U.S.C. §1291, we affirm.
After Ms. Trinen was arrested and charged with
theft on October 12, 2010, she was detained in
Aurora’s detention center. She posted a $300 bond
and paid a $50 non-refundable bail bond fee required
by an Aurora municipal ordinance. Ms. Trinen was
subsequently tried and acquitted on all charges.
When Aurora refused to refund the $50 bail bond fee,
she filed a class-action complaint alleging that the
fee violated substantive due process and equal
protection rights under the Fourteenth Amendment.
Ms. Trinen and Aurora filed cross motions for
summary judgment. In support of her substantive
due process claim1, Ms. Trinen argued that Aurora’s
bail bond fee unconstitutionally imposed costs of
prosecution on an acquitted defendant. See Bell v.
Wolfish, 441 U.S. 520, 535 (1979) (“[A] detainee may
not be punished prior to an adjudication of guilt in
accordance with due process of law.”); Schilb v.
Kuebel, 404 U.S. 357, 376-77 (1971) (Douglas, J.,
dissenting) (concluding bail bond fee was a cost of
prosecution and violated due process when imposed
_____________
1
Ms. Trinen fails to address her equal protection claim in her
appeal brief. She has therefore forfeited consideration of
that issue on appeal. See Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007).
App. 3
on defendant who was acquitted). The district court
held that Ms. Trinen’s substantive due process claim
failed because the United States Supreme Court held
in Schilb that bail bond fees are administrative costs,
rather than costs of prosecution, and therefore do not
violated due process when imposed on a defendant
who has been acquitted. See 404 U.S. 370-71. The
court granted Aurora’s motion, denied Ms. Trinen’s
motion, and entered judgment in favor of Aurora.
Ms. Trinen filed a timely appeal.
We review a district court’s grant of summary
judgment de novo, applying the same standard as the
district curt. Cypert v. Ind. Sch. Dist. No. I-050 of
Osage Cnty., 661 F.3d 477, 480 (10th Cir. 2011).
Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a).
Having reviewed Ms. Trinen’s appellate brief,
along with the record in this case, we conclude that
judgment was properly entered against her. For
substantially the reasons stated in the district court’s
Memorandum Opinion and Order entered August 9,
2011, we affirm the district court’s judgment.
The judgment of the district court is AFFIRMED.
Dated: January 31, 2012.
Entered for the Court
Michael R. Murphy
Circuit Judge
App. 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 11-cv-00152-JLK
MOLLY MARIE TRINEN, on her own behalf and
on behalf of a class of others similarly situated,
Plaintiff,
v.
CITY OF AURORA, a Colorado municipal
corporation,
Defendant.
MEMORANDUM OPINION AND ORDER
Kane, J.
The City of Aurora, Colorado, charges a $50.00 fee
for each bond issued to persons wishing to secure
their release from the City’s detention center
pending trial.
The fee is used to cover the
administrative costs of bond processing, and it is
non-refundable – even if the party paying the fee is
later acquitted of the underlying offense. Because
the cost of administering cash and surety bonds is
substantially similar, the City charges the same fee
for both types of bonds. It does not, however, charge
a fee for personal recognizance bonds.
App. 5
On October 12, 2010, Plaintiff Molly Marie Trinen
was arrested, charged with theft, and detained in the
City of Aurora’s detention center. Soon thereafter,
she posted bond and paid the required fee.1 After she
was tried and acquitted of all charges, she sought a
refund of the $50.00 Bail Bond Fee.2 The City of
Aurora refused to refund the Bail Bond Fee, and she
filed the instant class-action complaint alleging
violations of the Substantive Due Process and Equal
Protection Clauses of the 14th Amendment.
This matter is currently before me on the parties’
Cross-Motions for Summary Judgment (Docs. 9 and
13). For the reasons stated below, Defendant’s
Motion
__________________
1
Defendant argues that the bond was actually paid by
Plaintiff’s father, who is also acting as her attorney in this
matter. According to an affidavit attached to Plaintiff’s
Response to Defendant’s Motion for Summary Judgment,
Plaintiff’s father claims that he paid the bail and the $50
Bail Bond Fee on Plaintiff’s behalf as her agent. Because
this argument is raised in Defendant’s Motion for Summary
Judgment, Plaintiff is the non-moving party and I draw all
inferences in her favor. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
2
Defendant argues that Plaintiff’s father, not Plaintiff,
requested a refund of the Bail Bond Fee. As noted supra at
n.1, Plaintiff’s father claims that he was acting as Plaintiff’s
agent in making this request. Once again, because Plaintiff
is the non-moving party for purposes of this argument, I
draw all reasonable inferences in her favor.
App. 6
for Summary Judgment is GRANTED and Plaintiff’s
Motion for Summary Judgment is DENIED.3
STANDARD OF REVIEW
A motion for summary judgment shall be granted
“if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of
law.”
Fed.R.Civ.P. 56(c)(2); Adamson v. Multi.
Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145
(10th Cir. 2008). A fact is material if it could affect
the outcome of the suit under governing law;’ a
dispute of fact is genuine if a rational jury could find
for the nonmoving party on the evidence presented.
Adamson, 514 F.3d at 1145. In weighing these
standards, I draw all reasonable inferences in favor
of the non-moving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Because the parties have filed cross motions for
summary judgment, I am entitled “to assume that no
evidence needs to be considered other than that filed
by the parties . . .” Atlantic Richfield Co. v. Farm
Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th
3
Although Plaintiff has requested oral argument, the law is
well-settled and I will not benefit from any further
argument or explanation by the parties. Accordingly, I
decide the parties’ motions on their briefing.
App. 7
Cir. 2000) (quoting James Barlow Family Ltd. P’ship
v. David M. Munson, Inc., 132 F.3d 1316, 1319 (10th
Cir. (1997). This does not, however, mean that
summary judgment is necessarily proper.
The
motions are to be treated separately, and denial of
one does not require the grant of the other. Id.
(quoting Buell-Cabinet Co. v. Sudduth, 608 F.2d 431,
433 (10th Cir. 1979)).
In the instant case, the facts material to
Plaintiff’s claim are not in dispute;4 instead, their
quarrel focuses upon the constitutionality of
Defendant’s Bail Bond Fee. Accordingly, there is no
genuine dispute of material fact, and summary
judgment is appropriate.
Fed.R.Civ.P.56(c)(2);
Adamson, 514 F.3d at 1145. I now turn my attention
to the parties’ legal arguments.
ANALYSIS
Plaintiff argues that Defendant’s Bail Bond Fee
amounts to a violation of her Substantive Due
Process and Equal Protection Rights. I address each
argument seriatim.
4
There is some dispute relating to whether Plaintiff is the
real party interest. In light of the affidavit filed by Plaintiff
in support of her Response to Defendant’s Motion for
Summary Judgment, however, I find that there is no
genuine dispute that Plaintiff has standing to bring this
claim on her behalf and on the behalf of others similarly
situated.
App. 8
Substantive Due Process
Plaintiff’s argument is most easily elucidated via
the following syllogism; (1) an acquitted defendant
may not be forced to pay the costs of prosecution, (2)
the Bail Bond Fee is a cost of prosecution and
Plaintiff was acquitted of all charges; (3) therefore,
Defendant’s failure to refund Plaintiff’s Bail Bond
Fee is unlawful. This argument necessarily fails
because the Supreme Court has found that bail bond
fees are administrative costs – not costs of
prosecution. See Schilb v. Kuebel, 404 U.S. 357, 37071 (1971). Although Justice Douglas reached a
contrary result in dissent, no court has accepted his
invitation to revisit the Court’s unequivocal holding.
Plaintiff’s attempt to distinguish the statute at issue
in Schilb from Defendant’s Bail Bond Fee provision
is unavailing; indeed, the Schilb majority directly
addressed and distinguished the primary authority
relied upon by both Plaintiff and Justice Douglas.
See id. At 370-71 (discussing United States v.
Giaccio, 382 U.S. 399 (1966)). Plaintiff’s substantive
due process argument fails.
Equal Protection
Plaintiff’s equal protection argument is slightly
more difficult to decipher, but it seems to derive from
Defendant’s disparate treatment of criminal
defendants who are arrested and those who are
merely
App. 9
summonsed. Because Defendant’s Bail Bond Fee
provision does not discriminate against a protected
class or implicate a fundamental right,5 I review the
challenged provision to determine if it is rationally
related to a legitimate government purpose. See
United States v. Carolene Prods. Co., 304 U.S. 144,
152 n.4 (1938). Defendant’s decision to charge a Bail
Bond Fee for parties who are arrested and post bail
is rationally related to the administration of the bail
bond system. As posited by one court, it is easily
surmised that “bail fees help off-set the costs of
paperwork and subsequent time required of sheriff’s
or clerks to keep track of those arrestees who are out
on bail.” Broussard v. Parish of Orleans, 318 F.3d
644, 660 (5th Cir. 2003). Accordingly, Defendant’s
Bail Bond Fee passes constitutional muster and
Plaintiff’s argument fails.
CONCLUSION
Plaintiff’s arguments mirror those considered and
rejected by the Supreme Court nearly forty years
ago. There being no grounds for revisiting this wellsettled precedent, Defendant’s Motion for Summary
5
The only conceivable classification involved in the Bail
Bond Fee provision is between criminal defendants who are
arrested and criminal defendants who are merely
summonsed. Plaintiff does not contend that such
individuals constitute a class meriting a heightened
standard of review. Furthermore, bail bond fees implicate
no fundamental right. See, e.g., Schilb, 404 U.S. at 484-85.
App. 10
Judgment is GRANTED and Plaintiff’s Motion for
Summary Judgment is DENIED.
DATED: August 9, 2011.
BY THE COURT
/s/ John L. Kane
Senior U.S. District Judge
App. 11
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00152-JLK
MOLLY MARIE TRINEN, on her own behalf and
on behalf of a class of others similarly situated,
Plaintiff,
v.
CITY OF AURORA, a Colorado municipal
corporation,
Defendant.
JUDGMENT
Pursuant to and in accordance with the Order
(Doc. 22) entered by Judge John L. Kane on August
9, 2011, incorporated herein by reference, it is
ORDERED:
1.
Plaintiff’s Motion for Summary Judgment
(Doc. No. 9) is DENIED.
2.
Aurora’s Motion for Summary Judgment
(Doc. No. 13) is GRANTED.
App. 12
DATED at Denver, Colorado this 12th day of August,
2011.
FOR THE COURT
GREGORY C. LANGHAM,
CLERK
s/ Edward P. Butler
Edward P. Butler
Deputy Clerk