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(CN) — An attorney for the state of Florida asked an 11th Circuit panel on Monday to overturn a lower court’s decision barring Sunshine State officials from enforcing a law against a bail fund that allowed court costs and fines to be deducted from money deposited for bail.
The Tallahassee Bail Fund uses a revolving cash fund to post bail for its impoverished clients. Once a criminal case ends and bond money is returned to the bail fund, that money is cycled back into bonds for other pretrial detainees.
The challenged law directs court clerks to withhold unpaid court costs and fees from the return of cash bonds posted on behalf of criminal defendants by any person other than a bail bond agent.
While attorneys in the case sparred over whether the Tallahassee Bail Fund had legal standing to sue Florida Attorney General Ashley Moody and other officials on behalf of future clients, U.S. Circuit Judge Adalberto Jordan cut to the heart of the matter: “This is all a scam.”
Jordan questioned whether the state was “taking part of the bond for a non-bond purpose” and asked why the law does not apply to bail bond agents.
“The bail bond agent had a better lobbyist?” the Barack Obama appointee quipped.
A Florida federal judge last year ruled in favor of the bail fund in its lawsuit claiming the state law violated the rights of its future clients to be free from excessive bail. Chief U.S. District Judge Mark Walker ruled the law — which the bail fund said deprived it of money it otherwise could have used to bail out more pretrial detainees — violated the Eighth Amendment.
Walker, an Obama appointee, found that the state withheld almost one-third of the cash bail posted by the bail fund on behalf of clients between the organization’s inception in 2020 and 2022.
“Defendant’s actions caused — and continues to cause — the otherwise preventable pretrial detention of part of plaintiff’s client base,” Walker ruled.
Arguing on behalf of the state, senior deputy solicitor general Kevin A. Golembiewski told the three-judge panel on Monday that the bail fund was not the right party to sue over the law, suggesting instead that individual criminal defendants should be the ones to mount a challenge.
“Criminal defendants are the ones who the bail fund says are subject to this unconstitutional bail condition,” Golembiewski said. “They can bring a challenge in their criminal proceedings and say my conditions are unconstitutional … and they can immediately seek habeas relief from a district court.”
Jordan appeared to dismiss the argument completely.
“No criminal defendant and no lawyer representing a criminal defendant worth his or her salt is ever going to make that argument,” the Barack Obama appointee said. “By having the bail fund’s money taken it means [the defendant] is not going to be on the hook. They have no incentive to litigate that constitutional claim.”
Attorney Benjamin Stevenson of Stevenson Legal, who represents the bail fund, told the panel that the bail fund is in a better position to challenge the law than any individual criminal defendant.
“There are genuine obstacles,” Stevenson said. “Mootness, the criminal defendant securing the assistance of an attorney, litigation costs, possible retaliation if the state takes a different perspective on a plea offer [because] the criminal defendant is making such a fuss about bail. These are all legitimate hinderances for individual criminal defendants to bring the case.”
Senior U.S. District Judge Timothy Corrigan, a George W. Bush appointee sitting by designation from the middle district of Florida, asked why the fund did not sue on behalf of a person who would have standing, getting around the “tough issue” of third-party standing.
Stevenson responded that the bail fund did not have an obligation “to figure out another way to challenge [the law] when its interests are obviously injured individually.”
“Conditioning a person’s release in a way that extracts a penalty on the third-party depositor deters the third-party depositor, the bail fund in this case, from freeing the person,” Stevenson said.
The panel did not indicate when it would issue a decision in the case.
Corrigan and Jordan were joined on the panel by U.S. Circuit Judge Kevin Newsom, an appointee of Donald Trump.
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