United States District Court, D. Maine
ORDER AFFIRMING RECOMMENDED DECISION OF THE
Brock Hornby United States District Judge
20, 2016, the United States Magistrate Judge filed with the
court, with a copy to the plaintiff, his Recommended Decision
After Screening Pleading Pursuant to 28 U.S.C. § 1915.
(ECF No. 5.) The plaintiff filed his objection to the
Recommended Decision on August 5, 2016. (“Pl.’s
Obj.”) (ECF No. 6.) I have reviewed and considered the
Recommended Decision, together with the entire record; I have
made a de novo determination of all matters
adjudicated by the Recommended Decision; and I concur with
the recommendations of the United States Magistrate Judge for
the reasons set forth in the Recommended Decision, as
clarified below, and determine that no further proceeding is
the following additional observations about the merits of the
plaintiff’s constitutional claim because he gave the
Magistrate Judge very little detail in his original Complaint
beyond claiming that what happened to him was extortion.
See Compl. at 4-5 (ECF No. 1). In the
plaintiff’s objection to the Recommended Decision
(titled “Motion for Leave of Court to Amend
Complaint”), he has now given ten pages of single-spaced
arguments and assertions, along with exhibits.
a dispute over the bail bond fee that Maine law permits a
bail commissioner to charge in setting bail. 15 M.R.S.A.
§ 023(5) (2015). The maximum fee is $60, which is what
the commissioner charged Williams on September 19, 2014, when
he set bail for Williams at $500 upon Williams’s
arrest. Pl.’s Obj. at 1. When the charges against
Williams were ultimately dismissed, he received a refund of
his $500 bail, but not the $60 bail bond fee. Id.
Nowhere does Williams allege that he was indigent at the time
of his arrest and unable to pay the fee. In fact, he did pay
it and secured his release on bail.See id. As a result,
I find it unnecessary to determine whether Williams could
have requested relief from the fee based upon
Williams’s challenge is to the imposition of a fee that
is unrefundable even when a person is never found guilty of
the criminal charges that provoked the bail and the bail fee.
Williams calls the retention of this unrefundable fee
extortion, and says that his “actionable claim is
common law extortion.” Pl.’s Obj. at 5.
has been recent public debate about Maine’s system for
pretrial incarceration and restrictions. This past December,
Maine’s Pretrial Justice Reform Task Force recommended
eliminating the requirement that defendants in Maine pay bail
commissioner fees, stating:
The Task Force believes that Maine law should be amended to
create a centralized statewide fund from which bail
commissioners could be paid. They would be paid on a flat set
fee for each bail occurrence.
The Task Force felt that whether a person is promptly bailed
should not depend upon the individual’s ability to
secure the bail commissioner’s fee. Additionally, many
members of the bail subcommittee expressed the concern that
Defendants do not currently pay for the salaries for
administrative functions of employees who perform other
pretrial functions and that the same rule should apply to
Robert E. Mullen, Report of the Intergovernmental Pretrial
Justice Reform Task Force at 24 (Dec. 2015). Legislation was
introduced to have the Judicial Department pay the bail
commissioner fee, see L.D. 1639, § 4 (127th
Legis. 2016), but it was amended to delete that requirement,
stating that “[t]he Chief Justice of the Maine Supreme
Court has committed to establishing a working group to
address the challenges of the current bail system, including
the issue of bail commissioner fees.” Comm. Amend. A to
L.D.1639, No. S-453 (126 Legis. 2016).
whether Maine’s pretrial bail system could be improved
is a far different question than whether it violates federal
law, specifically the U.S. Constitution. Williams says that
he is not raising an excessive bail argument under the Eighth
Amendment, but he does argue violations of the Fourth
Amendment (an unreasonable seizure); the Fifth and Fourteenth
Amendments (deprivation of liberty and property without due
process; denial of equal protection); and the Sixth Amendment
(Williams did not have a lawyer when the bail commissioner
set the fee). See Pl.’s Obj. at 3-4.
aware of no authority for the proposition that there is a
Sixth Amendment right to counsel when the bail commissioner
sets his fee.
follow the Fifth Circuit’s decision that a bail fee
does not create a Fourth Amendment problem. Broussard v.
Parish of Orleans, 318 F.3d 644, 662 (5th Cir. 2003).
respect to due process and equal protection, the Supreme Court of
the United States and federal appellate courts have made
clear that reasonable administrative amounts can be charged
for the bail process as a “cost-retention
provision.” Schilb v. Kuebel, 404 U.S. 357,
365 (1971). In Schilb, the Supreme Court of the
United States upheld Illinois’s bail-fee system despite
the arguments that it (1) “is imposed on only one
segment of the class gaining pretrial release; (2) that it is
imposed on the poor and nonaffluent and not on the rich and
affluent; and (3) that its imposition with respect to an
accused found innocent amounts to a court cost assessed
against the not-guilty person.” Id. at 366
(footnote omitted). Schilb focused on the equal
protection arguments and rejected them. Id. at
365-369. But in rejecting the argument that a bail fee is a
denial of due process because it amounts to court costs
assessed against an innocent person, the Court held that
“bail bond costs” are not costs of prosecution,
but “an administrative cost imposed upon all those,
guilty and innocent alike, who seek the benefit of [a bail
bond with a 10% cash deposit].” Id. at 370-71.
It found therefore that a bail-fee system did not violate the
Due Process Clause, unlike Giaccio v. Pennsylvania,
382 U.S. 399 (1966), where the Court had found it
unconstitutional for Pennsylvania to impose court costs on a
defendant whom the jury acquitted. Id. at 404-05.
After Schilb, the Fifth Circuit upheld
Louisiana’s bail bond fee against a due process
challenge, reasoning “that Schilb specifically
rejected a fundamental rights implication of such fees,
” that the private interests at stake were “not
great, ” and that the due process argument failed
because the state could validly claim administrative fees to
run the system. Broussard, 318 F.3d at 655. The
Seventh Circuit did likewise in Payton v. Cty. Of
Carroll, 473 F.3d 845, 850-51 (7th Cir. 2007). Most of
these cases and others that the Magistrate Judge cites in his
Recommended Decision involved lower administrative
payments than Maine’s $60 fee, but $60 is
within the constitutional range of a cost-retention
seems to suggest that state actors violated his Fourteenth
Amendment right ...