In fight over too-high bail in Utah, arrestees ask 10th Circuit to bail them out

(CN) — Six Utah residents claim their rights were violated when state judges set their bail higher than they could pay.

They took their challenge to a panel of the 10th Circuit on Wednesday, hoping to reignite their case.

“Whether looking at the statutes or the practices, the district court thought there was nothing wrong here — and that’s wrong,” said Salil Dudani, an attorney with the group Civil Rights Corps who is representing the plaintiffs.

The six plaintiffs sued five Utah judges in 2021, accusing them of violating their rights by setting bail too high and conducting initial criminal proceedings without counsel.

The plaintiffs, who were each arrested without a warrant and taken into custody in Utah, sought to represent a class of state residents facing similar circumstances. The judges determined each plaintiff was eligible for bail, but the plaintiffs said that neither they nor their attorneys were notified when the initial bail determination was occurring.

The plaintiffs claim the judges didn’t consider any less-restrictive conditions of release or make any inquiries into whether they would even be able to pay bail. They said that caused them to sit in jail while people facing similar charges but with more access to financial resources are released immediately.

U.S. District Judge David Nuffer, a Barack Obama appointee, dismissed the suit last summer. He said the plaintiffs hadn’t proven Utah’s criminal procedure violated the constitutional rights to counsel or due process.

On appeal, the plaintiffs urged the 10th Circuit to consider the individual judges’ actions.

“Here, the judges in court at the initial appearances are imposing pretrial jailing without holding any hearing at all,” Dudani said. “They typically just reimpose the preexisting ex parte bail order without addressing bail. And when they do, it’s not a constitutionally adequate hearing.”

The appeals court questioned whether the case touched on federal law or state law.

“I’m confused by what the disconnect is between Utah law and what these judges are doing,” remarked U.S. Circuit Judge Gregory Phillips, a Barack Obama appointee.

Dudani clarified that Utah laws are less stringent than federal laws, as they “neither require nor forbid compliance with the federal constitution.”

The 10th Circuit continued to press the plaintiffs on whether the case is exclusively challenging the individual judges’ actions or also the state’s statutory framework.

“The lower court — although it gets some important things wrong — understands that we’re complaining about the judge’s practices,” Dudani said.

Dudani explained the plaintiffs are pushing for heightened scrutiny before hearings.

The Utah judges, however, argued the lower court correctly dismissed the claims.

In Utah, a judge receives information about a defendant and makes an initial bail determination, often within 24 hours. That judge then orders the defendant to appear at an initial appearance within seven days, explained Sarah Goldberg with the Utah Attorney General’s Office.

“The district court correctly held that none of these procedures violate the Constitution,” Goldberg said.

Shortly after the plaintiffs filed their initial complaint, the state amended its bail laws to require that jail employees collect information about an arrestee’s financial circumstances. Judges must enter a temporary initial bail determination, then make a bail decision at the arrestees’ initial appearance.

The plaintiffs amended their complaint to add a new plaintiff who had been arrested after the amendment went into effect. They said her bail was still set higher than she could afford.

“You can’t assume that once the law changed, the judges aren’t following that law,” Goldberg said.

The Utah judges see the case as primarily focused on the initial bail determination. Goldberg said that by law, increased procedures aren’t required at that stage.

But U.S. Circuit Judge Nancy Moritz, a fellow Obama appointee, noted that the state did in fact increase the procedures.

“Wasn’t Utah trying to address that with the amendment?" Moritz asked. “Because you do now have some financial information at that stage, [at the] probable cause hearing.”

Goldberg argued the amended procedures are sufficient and allow judges to address new cases quickly.

“What plaintiffs are asking for here is a full-blown adversary hearing within 24 hours," Goldberg said. “That’s just not something that’s possible.”

The Utah judges further argued there is no fundamental right to be free from pretrial detention — but Moritz pushed back.

“If the allegations are true that there’s no consideration of their financial circumstances, why isn’t that a complete deprivation for someone who can’t afford bail?” Moritz asked.

The Utah judges argued there is no complete deprivation, since state law still requires them to consider the financial circumstances of the arrestees.

The panel also included U.S. District Judge Matthew Garcia, a Joe Biden appointee sitting by designation from the District of New Mexico. The court did not indicate when it might rule.