Each year, millions of people are detained in U.S. jails and are assigned bail amounts that many defendants, who are disproportionately people of color,
cannot afford to pay.
In many counties and cities across the United States, judges issue standing bail schedules, which list recommended bail amounts for different types of offenses.
While officials holding individual bail hearings have the discretion to deviate from the corresponding amount on the bail schedule, they typically adhere to the recommended amount.
Many individuals are then detained pretrial because they are unable to pay the prescheduled bail amount.
In many jurisdictions, the use of cash bail is arbitrary—certainly not calculated to guarantee an individual’s appearance in court or to promote safety in the community.
Pretrial detention not only affects a person’s “livelihood, health, [and] family” but can also impact the outcome of the judicial process.
Although plaintiffs challenging the constitutionality of these kinds of bail regimes through § 1983 claims have enjoyed some recent successes,
a survey of the recent bail-litigation landscape (and decisions in different but related contexts) shows that other more procedural or technical questions pose significant obstacles to these constitutional challenges.
As evident in the Fifth Circuit’s recent en banc decision in Daves v. Dallas County, having to resolve threshold procedural questions in these lawsuits means that federal courts may not get to the merits of the constitutional claims for a long time—if at all.
One of the main threshold barriers to these constitutional challenges is the question of whether municipalities can be held liable for unconstitutional bail schedules issued by municipal judges—a determination that involves an application of the Monell doctrine.
Part I of this Comment provides an overview of Monell liability and how, in constitutional challenges to judicially promulgated bail schedules, a main barrier for plaintiffs is the requirement of establishing that judges act as final policymakers for the municipality when promulgating local bail rules. Part II discusses the Fifth Circuit’s treatment of the issue in Daves. It then explores how other circuits have addressed the question, both in the bail context and elsewhere, and explains that a majority of circuits have concluded that municipal judges exercising their judicial power act for the state and not for local governments. Part III considers whether, in light of the circuits’ decisions and particularly after Daves, there is any viable path forward for litigants seeking to sue municipalities for bail schedules issued by judges.
I. Suing Municipalities for Bail Schedules
Because states are not suable “persons” under § 1983,
municipal liability is especially important in civil rights litigation in federal court. Section 1983 provides individuals with a cause of action to sue “person[s] who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory,” deprive these individuals of their rights guaranteed under the Constitution or federal law for damages or injunctive relief.
Although the Supreme Court held that municipalities and other local government entities can be sued under § 1983,
it was careful to emphasize that “a municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, . . . held liable under § 1983 on a respondeat superior theory.”
A. Municipal Liability Under Monell
In Monell v. Department of Social Services of City of New York, the Court outlined when a municipality may be sued for the acts of its officials. Specifically, the Court concluded that a local government can be held liable under § 1983 “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [complained of] injury.”
Local government practices that are “so permanent and well settled as to constitute a ‘custom or usage,’” even if informal and unwritten, may also be grounds for municipal liability.
In other words, Monell requires the plaintiff to establish three elements: (1) a local government policymaker; (2) an official policy or custom; and (3) a constitutional violation whose “moving force” is the policy or custom.
The Court has continued to flesh out the doctrine’s contours. In Pembaur v. City of Cincinnati, the Court explained that “[t]he ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.”
While “‘official policy’ often refers to formal rules or understandings . . . that are intended to, and do, establish fixed plans of action to be followed under similar circumstances,”
the Court concluded that, in some circumstances, a municipality could be held liable even for a single decision by local policymakers.
Municipal liability may be imposed, the Court continued, when the local officer has final authority to establish the policy and, if the unlawful action stems from a single decision, when the official makes a “deliberate choice to follow a course of action” from among various alternatives.
If an official’s decisions are constrained by another official’s policies or are subject to review by another policymaker, that official does not exercise final authority to make policy.
While the tight definition of Monell liability accommodates policy concerns about potentially draining limited municipal treasuries, the doctrine has nonetheless faced criticism from judges and scholars alike.
B. Judges: Final Policymakers for Local Government Entities?
In the bail context and in other situations in which the plaintiff’s theory of municipal liability rests on a judge’s actions, two issues have presented much difficulty for plaintiffs seeking relief against municipalities via § 1983. The first key question is whether local judges are acting for the municipality—as opposed to for the state. The second major issue is whether these judges are exercising final policymaking authority.
Establishing that a local judge acts for the county in promulgating a bail schedule is a critical part of the analysis because a finding to the contrary essentially stops litigation challenging these bail systems in its tracks.
Although plaintiffs can still, in theory, attempt to seek prospective injunctive relief against the individual judges acting in their official capacity (assuming they are state actors) through Ex parte Young,
there is no clear path to such relief in practice, especially given the broad immunity afforded to judges for their judicial acts.
The question of whether an official is a final policymaker for the local government is a question of state law. Thus, a court’s “understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official’s functions under relevant state law.”
Courts do not—or should not—approach the inquiry in a “categorical, ‘all or nothing’ manner.”
In McMillian v. Monroe County, the Court illustrated these principles by looking to the Alabama Constitution and Alabama law to conclude that Alabama sheriffs acted for the state when executing their law enforcement duties.
Even though sheriffs were paid by the county, provided with equipment and lodging by the county, elected by voters in their county, and jurisdictionally limited to the county’s borders,
the Court accorded greater weight to the fact that the Alabama Constitution reflected its framers’ intent that sheriffs be considered executive officers of the state and that the specific function at issue was the sheriffs’ “complete authority to enforce the state criminal law in their counties.”
As applied to the bail context, then, a key threshold question is whether local judges—even if they may count as municipal actors when taking actions in other areas—act for the state when they exercise their judicial power to issue standing bail orders.
II. Daves and Other Circuits’ Analyses: Monell Liability for Judicial Action
Although not all the circuits have squarely addressed the question of whether municipal judges who engage in judicial acts are municipal policymakers, most of the circuits that have analyzed the issue seem to view municipal judges exercising the judicial power as state actors—in almost categorical terms (if not completely so).
That said, a handful of circuits have either reached a different conclusion or announced narrower rules, potentially leaving some doors open for Monell liability in challenges to judicially promulgated bail schedules.
A. Fifth, Sixth, Seventh, Ninth, and Tenth Circuits: Municipal Judges Engaged in Judicial Functions Act for the State
In the majority of circuits that have addressed municipal judges’ policymaking authority, courts, after interpreting state law, tend to conclude that these judges are state actors because the judicial power flows from the state.
The Fifth Circuit, sitting en banc in Daves v. Dallas County, held that Dallas County judges act for the state, not the county, in creating a bail schedule.
Although a section of the Texas Constitution specifies that these judges are “county officers” subject to a certain removal procedure,
and the Fifth Circuit had previously relied on those same state constitutional provisions to conclude that county judges were county officers,
the Daves court backtracked. Instead, the Fifth Circuit in Daves concluded that the county courts are vested with the state judicial power and are part of a state system; so, when county judges exercise their judicial authority, they are state actors.
Turning to the next step of the analysis, the Fifth Circuit found that just as a “judge’s setting an arrestee’s bail . . . is part of the state adversary proceedings and a judicial function[,] . . . creating a bail schedule for later applications to specific arrestees is also a judicial act that enforces state law.”
In particular, the court noted that “the act of creating guidance for setting bail is ‘inextricably linked’ to the subsequent setting of bail and is a judicial act.”
In reaching these conclusions, the Fifth Circuit spoke in broad, categorical terms about a single, unified “judicial power of the state.”
Applying much of the same analysis to district judges, the court also concluded that these judges acted as “officers of the state judicial system” when they developed a bail schedule.
Judge Catharina Haynes, in a dissenting opinion, criticized the majority’s decision for overruling the Fifth Circuit’s precedents and reframing the merits of the plaintiffs’ claims as jurisdictional issues.
As relevant here, Judge Haynes argued that the county judges’ conduct in promulgating the bail schedule was the kind of policymaking for which Dallas County could be held liable.
She criticized the majority for setting aside factors it had previously used to determine whether an officer is acting for the state or for a municipality simply because the decision that gave rise to those factors involved the Eleventh Amendment, rather than a § 1983 claim.
Applying those factors, and putting special emphasis on the source of funding factor, Judge Haynes observed that the county judges are paid by the county; the fees they collect go to the county; and they exercise their local rulemaking powers to promulgate a misdemeanor bail schedule.
Additionally, she argued that the county judges, in setting a bond schedule for others to apply, acted beyond their judicial capacity: Here, they engaged in policy-setting conduct because they were “merely directing other judges in a manner divorced from any given case.”
The Sixth, Seventh, Ninth, and Tenth Circuits appear to have reached the same conclusion as the Fifth Circuit: Local judges acting in their judicial capacity to enforce state law are not local actors for Monell purposes. In Johnson v. Turner, the Sixth Circuit rejected the plaintiffs’ argument that a county juvenile court judge created “policy” for the county in issuing a memorandum outlining the process for initiating an attachment pro corpus. Instead, the court found that the judge’s action constituted a “general restatement of state law as perceived by the juvenile court judge.”
In Woods v. City of Michigan City, a challenge to a bond schedule issued by a state superior court judge that made reckless driving a bondable offense, the Seventh Circuit concluded that though the judge did have “final authority” for fixing bail under Indiana law, “judges of Indiana’s circuit, superior and county courts are judicial officers of the State judicial system.”
And in Ledbetter v. City of Topeka, the Tenth Circuit held that a municipal judge who failed to sign an arrest warrant was not a municipal policymaker because the authority of the municipal judge was established by state law, and his “authority to issue arrest warrants was circumscribed by his judicial duty to follow state law.”
The Ninth Circuit, in a case involving a § 1983 challenge to a city judge’s “policy” of failing to advise indigent defendants of their right to counsel, similarly concluded that the city judge was functioning as a state judicial officer.
Under Montana law, the court explained, a city judge’s “treatment of indigent defendants was an exercise of judicial discretion drawn from the authority of the state” and appealable to higher state courts.
The court also rejected the plaintiffs’ arguments that the conduct at issue was the “mere ‘administrative duty’ of reciting defendants’ rights,” not an act that involved judicial discretion,
and that by failing to follow state or federal constitutional law, the judge acted outside of his state judicial capacity.
As the Eggar court summarized, “A municipality cannot be liable for judicial conduct it lacks the power to require, control, or remedy, even if that conduct parallels or appears entangled with the desires of the municipality.”
In these circuits, then, it seems that when municipal judges issue orders in their judicial capacity, they are acting as state, not local, officials. That municipal judges operate within a judicial hierarchy defined by state constitutions and state laws and exercise their judicial authority to enforce state law appears to all but dictate that conclusion.
B. Eighth, Eleventh, and D.C. Circuits: Some Breathing Room?
Although most of the circuits have concluded that municipal judges acting in their judicial capacity are not final municipal policymakers, the Eighth, Eleventh, and D.C. Circuits’ treatment of the issue seems to provide a sliver of hope—however slim—to civil rights plaintiffs.
The Eighth Circuit has provided somewhat diverging guidance regarding whether a municipality can be held liable for the conduct of a municipal judge. In Hamilton v. City of Hayti, the plaintiff filed a § 1983 action against a municipal judge and the city of Hayti alleging that the bond schedule issued by the judge was unconstitutional.
The panel held that the municipal judge, in setting a bond schedule to govern the pretrial release of individuals accused of municipal ordinance violations, was engaged in a judicial act.
The panel further concluded that, because municipal judges setting a bond schedule were judicial officers of the state judicial system under Missouri law, the judge’s adoption of the bond schedule was not a final decision by a municipal policymaker.
But in Williams v. Butler, an en banc Eighth Circuit held that a municipal judge in Arkansas exercised final municipal policymaking authority in firing a municipal court clerk, so the municipality could be subject to suit.
The trickiest issue in Williams was drawing a line between policymaking authority and mere decisionmaking authority.
The majority concluded that because, under Arkansas law, the judge “had been delegated carte blanche authority . . . and was exercising that authority” when he hired and then fired the court clerk, the judge’s authority was not constrained by any other policymaker and thus constituted final policymaking.
Meanwhile, the Eleventh Circuit has held that a city can be sued for a constitutionally deficient standing bail order issued by the municipal court. In Walker v. City of Calhoun, the court concluded that because Georgia law grants a city the legislative power to adopt ordinances relating to its property, affairs, and local government, and the city’s municipal charter itself includes a broad grant of authority, the city “could regulate bail if it wished to and so may be held responsible for acquiescing in an unconstitutional policy and practice by its Municipal Court and its police.”
Notably, although state statutes also granted authority to courts to establish bail schedules, the Eleventh Circuit declined to conclude that such a grant of authority flowing from state law preempted all municipal regulation of bail.
Finally, the District Court for the District of Columbia has discussed some of the underlying debates and principles at issue here. Singletary v. District of Columbia involved a plaintiff’s § 1983 action against the District alleging that the D.C. Board of Parole, an executive entity, wrongfully revoked his parole.
Addressing the District’s arguments, which relied heavily on the cases discussed above,
and acknowledging that the court in Singletary was “not presented with, and makes no decision regarding, the District’s liability for decisions made by municipal judges,” Judge Colleen Kollar-Kotelly observed that “the cases relied upon by the District do not . . . establish the overarching principle that judicial action can never give rise to municipal liability.”
Instead, Judge Kollar-Kotelly added that “these cases stand for the much more limited proposition that a municipality may not be held liable under Section 1983 for actions taken by a municipal judge pursuant to his or her authority under state law, as the judge’s actions in such a case are properly attributed to the state rather than the municipality.”
III. Implications for Future Bail Litigation
While most circuits have concluded that local judges acting in their judicial capacity are not final municipal policymakers under Monell, the decisions from the circuits that have not yet slammed the door shut on municipal liability, and the dissenting opinion in Daves, offer some lessons for how plaintiffs looking to sue municipalities in federal court for judicially promulgated bail schedules may proceed.
A. Characterizing the Judge’s Action
First, Judge Haynes’s dissent in Daves and the Eleventh Circuit’s decision in Walker suggest that plaintiffs may still have a path forward if they can convince a court that issuing a bail schedule is an administrative or policymaking act, not a judicial one. Indeed, at least in the circuits that seem to conceive of the authority that local judges wield as part of an indivisible state judicial power,
being able to analogize the creation of a bail schedule to the type of employment decision at issue in Williams,
as distinguished from a decision rendered by a judge at a specific defendant’s trial,
will be crucial. The Fifth Circuit majority in Daves rejected this proposition, asserting instead that “when judges decide on a procedure for taking what indisputably will be judicial acts in the future, that decision is so intertwined with what will follow as to be a judicial act as well.”
But, as Judge Haynes’s vigorous dissent suggests, there is at least a plausible argument, depending on the circuit and how a specific state’s law sets up the court system, that when municipal judges develop a bail schedule for other judges to apply—instead of deciding cases and controversies, a “classic” judicial function—and they do so on their own initiative, with full discretion, they are acting not as judicial officers but as policymakers.
Plaintiffs may be able to sue municipalities if they can establish that the municipal courts’ ability to regulate bail stems from a municipal ordinance or some other local grant of authority. In Walker, the Eleventh Circuit concluded that municipal courts exercising judicial authority flowing from state law also had the ability to take the same kind of judicial action pursuant to a municipal grant of authority.
In other words, particularly in states that give municipal governments expansive authority to regulate local affairs, plaintiffs challenging municipal bail schedules may find openings for § 1983 suits against the local government if (1) state law permits municipalities to issue local rules like standing orders regulating bail but does not require them to do so
and (2) they can trace municipal judges’ authority to create bail schedules to some kind of local rule or ordinance.
B. Custom, Practice, or Usage
Even if pursuing an action against a municipality based on the “judge as a municipal policymaker” theory is unlikely to be fruitful, plaintiffs can still try to invoke the Monell doctrine on a separate ground, against different municipal officials: that the enforcement of a bail schedule was a local “custom or usage.”
In Woods, the Seventh Circuit pointed out that the plaintiff had failed to raise the “custom or usage” argument in his pleadings before summary judgment and denied his motion to amend
and that, in any case, the plaintiff’s invocation of this separate ground for municipal liability was duplicative of his basic theory that the judge was a final policymaker.
In Walker, the Eleventh Circuit seemed to be open to the argument that the city could “set bail policy through its control of its police department,” though it did not resolve the validity of this secondary theory of liability.
And in an unpublished decision, the District Court for the District of New Mexico concluded that plaintiffs bringing a § 1983 lawsuit against a city for a municipal judge’s alleged wrongdoing (the improper charging of fines and fees and wrongful imprisonment) had pled sufficient facts to support their allegation that the city itself maintained a discriminatory official policy or well-settled custom or practice.
In future constitutional challenges to bail systems, plaintiffs can try to skirt the state-judicial-power problem altogether.
Instead, plaintiffs can try to demonstrate how other municipal actors—police officers, jailers, and others—enforced a constitutionally deficient bail schedule as a matter of local custom or practice, or even that the municipality itself had a policy or well-settled custom that violated the plaintiffs’ constitutional rights.
Generally, circuits that have addressed the question of whether a municipal judge who acts in their judicial capacity is a final municipal policymaker have increasingly answered in the negative, insulating municipalities from § 1983 liability. Nowhere is this proposition clearer than in the Fifth Circuit’s recent decision in Daves. And although civil rights advocates have outwardly downplayed the significance of the Daves opinion,
other commentators, including commercial bail industry lobbyists, have recognized that Daves “is not a procedural hearing on an insignificant issue; it is a sea change.”
The driving force behind this trend seems to be the fact that many state constitutions and laws purportedly conceive of a single, categorical state judicial power and characterize municipal courts as one part of a larger state court system. Plaintiffs challenging judicially promulgated bail schedules in federal court can still, however, draw some lessons from decisions in the circuits that have not fully rejected Monell liability in similar contexts. They can try to characterize a judge’s creation of a bail schedule as a policy-setting act, not a judicial one, or, where possible, to locate a source of local authority for the judge’s regulation of bail—or they can try to establish Monell liability by focusing on the actions of other local officials or on the policies, customs, and practices of the municipalities themselves.