[00:00:00] Speaker 02:
Third case for argument this morning is Medina v. Allen. It is stock at 25-4099. Counsel, please proceed when you're ready.

[00:00:09] Speaker 03:
Thank you. Good morning. Salil Dudhani for Appellants. Let me start with the basic idea that when a judge in court imposes pretrial detention, that judge needs to hold a hearing.

[00:00:23] Speaker 03:
The decision is whether to confine a person to a jail cell, away from their children, at risk of losing their job, their housing... in a much worse position for their criminal case.

[00:00:33] Speaker 03:
Here, the judges in court at the initial appearances are imposing pretrial jailing without holding any hearing at all. That's paragraph 59 of the complaint. They typically just reimpose the pre-existing ex parte bail order without addressing bail. And when they do, it's not a constitutionally adequate hearing.

[00:00:53] Speaker 02:
Can I start at, I think, what the beginning is for me, at least, which is you say that You're not arguing with the Utah statutes or rules.

[00:01:05] Speaker 02:
That's correct, Your Honor. You're arguing against the practice of the judges. And yet there's a couple of places in the brief where it sounds like you want more than the statute.

[00:01:19] Speaker 02:
For instance, one place in Europe, original brief, any burden associated with additional or substitute procedures not present in Utah law would also be minimal. So we want more than Utah law. And then in the reply brief, it says, throughout this litigation, plaintiff alleged that conduct by the judges that fails to implement statutory directives that implement some but not most of the constitutional requirements that apply here, as though there are constitutional requirements beyond Utah law.

[00:01:55] Speaker 02:
And so that's what I need right off the bat is, are you arguing that Utah law would be fine if we're met, or are you not?

[00:02:04] Speaker 03:
No, Judge Phillips, and I think some of that language is responsive to the framing from Diapolis and the lower court focusing on the statutes. But in fact, this case is about the judge's violation of the federal constitution. For example... in court, imposing unaffordable money bill resulting in jailing without conducting any hearing, let alone considering ability to pay and alternatives, let alone making the constitutionally required findings on those issues, plainly required under two separate lines of case law, the Bearden line of case law regarding conditioning liberty on a payment, and the Salerno and Dieter's line of case law regarding what it takes to infringe the fundamental liberty interest in pretrial liberty.

[00:02:43] Speaker 02:
So if the Utah law is sufficient, and it's not causing the constitutional problem. Can you identify exactly how the judges routinely are violating that? Are you talking about the 24-hour rule, or are you saying that the Utah law requires that at this initial hearing where it's just the magistrate looking at the papers from the jail, that Utah law requires that the defendant be there with counsel as the judge magistrates looking at that piece of paper.

[00:03:20] Speaker 02:
I'm confused by what the disconnect is between Utah law and what these judges are doing. Can you precisely say, here's what they're not doing, and that's why it's a constitutional violation? If you can, you'll have me back on the roadway.

[00:03:36] Speaker 03:
Okay, thank you for giving me the opportunity to clarify. I do just want to say, though, at the top, that If the judges are violating the federal constitution, either in the pre-hearing money bail orders that Your Honor alluded to or at the bail hearing, then what the Utah statutes that may or may not be on the books don't bear on whether we've stated a claim under the federal constitution. But it so happens that Utah statutes do not even purport to require what the constitution requires.

[00:04:08] Speaker 03:
No Utah statute says you need to make findings on the record regarding ability to pay and alternatives at a bail hearing. So the Utah statutes are deficient. They neither require nor forbid compliance with the federal constitution. They're neither here nor there. And so I think, let me answer Your Honor's question directly. What is deficient here? So ultimately, both regarding the pre-hearing money bill orders and what happens in court, The key are those two lines of cases, Bearden and Salerno.

[00:04:41] Speaker 03:
So I'll start with Bearden. The express holding of Bearden is that if a court is going to condition a person's liberty on a payment, that court must first consider and make a finding on the record regarding the person's ability to pay because that answers the question, well, is this order going to result in the person's detention or not? If it is, the judge can proceed. but the judge must consider whether there are adequate alternatives that will meet the state's interests and make a finding on the record about that.

[00:05:11] Speaker 03:
That's dispositive. We plead that's not happening here. The lower court didn't even sight-beard it.

[00:05:18] Speaker 03:
This same constitutional principle separately comes from the Salerno line of cases. So Salerno, at page 750, announces there exists a fundamental right to pretrial liberty under substantive due process. This court in Dieter's Deeters is this court's only precedential opinion interpreting Salerno's right to pretrial liberty. This court says, of course, yes, it's a fundamental right, as the Supreme Court held. That means its infringements are subject to heightened scrutiny.

[00:05:50] Speaker 03:
That means there need to be sufficiently compelling reasons to impose an order resulting in pretrial detention. Of course, at the risk of stating the obvious, an unaffordable money bill order imposes pretrial jailing because the person can't pay.

[00:06:06] Speaker 03:
And the central way of meeting that standard at a hearing is to consider and make findings regarding potential alternatives to detention.

[00:06:18] Speaker 03:
Dieters actually models this very well. And Dieters was about a pretrial detention order where the trial court considered an outpatient arrangement, considered a halfway house, had a colloquy with defense counsel, and only after ruling out less restrictive alternatives ordered the pretrial detention. That's why it satisfied Salerno. We don't have that here at the bail hearing in court.

[00:06:40] Speaker 03:
Now, I can address the pre-hearing period.

[00:06:43] Speaker 01:
Let me stop you, because I have the same questions that Judge Phillips does, and I'm not sure that I understand. So my day job, of course, as you know, is a district judge.

[00:06:56] Speaker 01:
So I'm sensitive to the fact when folks come up to Denver and say, well, the district judge got it all wrong. They didn't consider the issues we were making. But I think a fair reading of your complaint...

[00:07:09] Speaker 01:
is a challenge to the constitutionality of the statutory framework. I did not read, the first time I read your complaint and I read your brief, I did not hear it. I did not understand that you were claiming to be challenging the individual judge's actions with respect and they're under the statutes. And so I just, and when I look at your class definition, your class definition isn't consistent with that claim. And so what concerns me is I feel like we're up here talking about an issue that I suspect the district court did not believe that he was considering when he issued his opinion.

[00:07:47] Speaker 01:
So that's number one. So I want you to tell me two questions. Number one, very clearly, is your case exclusively about challenging the individual defendant's actions with respect to the statutory framework?

[00:08:02] Speaker 03:
I think my answer is yes or no question.

[00:08:04] Speaker 01:
Yes, but I would strike with respect to the statutory framework. Okay. So it's just their actions under the statutory scheme?

[00:08:13] Speaker 01:
It's their conduct. Okay. Regardless of what, yes. Okay.

[00:08:17] Speaker 01:
So if you believed that the district court did not misunderstood your argument and the claims of nature, why didn't you just ask them to reconsider the issue?

[00:08:30] Speaker 03:
Your Honor, the district court ruled that there doesn't exist a fundamental right to pretrial liberty. The district court failed to address our ad nauseum Bearden argument. The district court held that procedural due process has nothing to say about these issues. So I don't know that the district court didn't understand our argument. I think whether looking at the statutes or the practices, the district court thought there was nothing wrong here. And that's wrong under Bearden, Dieter's, the Sixth Amendment, which I hope we'll get to today.

[00:09:03] Speaker 05:
Was there any place in the district court's order that it recognized that your complaint was, as you're describing it now, only about the judge's actions and not about the statute? Because, I mean, as I read your brief, that was your main complaint, is that the district court didn't recognize, didn't recognize, didn't recognize that your complaint wasn't about the statute, it was about the actions of the judges. And it does seem that there maybe was a fundamental disconnect there.

[00:09:35] Speaker 05:
And now I guess what you're arguing is, well, yeah, that was error on the district court's part. But even if it had recognized that we were talking about the judge's actions, it would still have erred because of its rulings regarding, for instance, whether this was a fundamental right. Does that make sense?

[00:09:57] Speaker 03:
I understand Your Honor's question. Is that your argument now?

[00:09:59] Speaker 05:
It erred in so many ways.

[00:10:04] Speaker 03:
I think it is important for this court to address the legal confusions, but that's not my argument today. Let me point out that the lower court entertained the argument that HB 2003, a statute that was passed in between our first complaint and our operative complaint, the district court considered the argument, well, that statute gives everything plaintiffs want. And it said, well, no, no. Actually, there's a litany of things plaintiffs need. For example, the things I've listed today that the statute doesn't address.

[00:10:37] Speaker 03:
So I think that's a strong indication the district court understood what we were talking about.

[00:10:43] Speaker 05:
But it was referring again to the statute, right? But it understood that HB 2003... But now you're saying you're not complaining about the statute even post-amendment.

[00:10:55] Speaker 03:
This case is about the judge's own conduct. And Your Honor is asking me, well, did the lower court understand that? And I think the reasons it gave in overruling the Apollies mootness argument illustrate an understanding.

[00:11:11] Speaker 03:
And we raised this issue.

[00:11:13] Speaker 05:
Well, you said the court indicated that you're still arguing that there's problems with the statute.

[00:11:20] Speaker 03:
Well, I'm sorry. I did not mean to address that. Maybe I misunderstood you. I mean the lower court understood that the statutes don't move this case.

[00:11:26] Speaker 05:
And did it understand that because your complaint is about the judge's actions? Did it express that, that it understood that that didn't move the case because your complaint isn't about the statute?

[00:11:37] Speaker 03:
That is my recollection. And I also think in the lower court's dismissal of this case and the ruling and the factual background, the lower court, although it gets some important things wrong, understands that we're complaining about the judge's practices.

[00:11:51] Speaker 01:
Then why didn't your class definition include only those folks who appeared in front of these judges?

[00:11:58] Speaker 03:
I think that question gets at a class certification issue that the lower court could address on remand. At any time under Rule 23, the lower court could change the class.

[00:12:08] Speaker 01:
But standing here today, if your case was really about the actions of the individual defendants, why wasn't that reflected in the class definition?

[00:12:15] Speaker 03:
I think it is. The class definition. Although the class definition doesn't limit the class to the individuals who appeared before the judges, nor is it tied to the statutes in any way, the class definition, to summarize, are indigent arrestees who didn't have the constitutionally required consideration and findings in these counties.

[00:12:34] Speaker 02:
Is there anything unusual about these particular judges other than that they're the defendants? In other words, every judge in Utah in the same position, you'd have the same complaint about? Or are you saying that Other judges are honoring what you say is required.

[00:12:51] Speaker 03:
I'm not sure, Your Honor. These were the judges who issued the unconstitutional money bail orders regarding the named plaintiffs. And we're seeking a declaration regarding their conduct. Now, perhaps that will have broader effects in Utah, but they aren't parties to this case. Okay.

[00:13:07] Speaker 02:
The Federal Bail Reform Act, you're not contending that a judge who abides that is acting unconstitutionally, right? Right. I think, all right, tell me the difference then. What is the difference between the Federal Bail Reform Act on pretrial detention for financial ability to pay and A, the Utah statutes, and B, the way that Utah judges are operating?

[00:13:33] Speaker 03:
The Federal Bail Reform Act prohibits a financial condition from resulting in detention.

[00:13:38] Speaker 03:
The Federal Bail Reform Act requires... Words.

[00:13:41] Speaker 02:
Those are just words. The Soviet Constitution prevented...

[00:13:46] Speaker 02:
inhibition on free speech.

[00:13:49] Speaker 02:
We're talking about actions though, right? We're talking about some measure of what you do to protect against the deprivation.

[00:13:58] Speaker 03:
The Federal Bail Reform Act requires findings on the record regarding what the least restrictive conditions would be. The Federal Bail Reform Act imposes a clear and convincing evidence standard. Here, the judges are not conducting any hearing at all, very different than what the Federal Bail Reform Act let alone making the required consideration or findings.

[00:14:20] Speaker 02:
As soon as the defendant enters the door, they're called upon to make this decision from information obtained by the jail officials. Are you saying that the only way that the judges could operate constitutionally is after booking, the person is brought, the defendant is brought to the courtroom and

[00:14:42] Speaker 03:
Appointed counsel before that hearing and then we have an honest-to-goodness Financial ability to pay discussion no your honor there would be nothing unconstitutional with what your honor is proposing But that's not what we're saying here, so I've spoken to what's required at the hearing in court prior to the hearing that general principle that unaffordable money bail is unconstitutional if there's an available adequate alternative, the heightened scrutiny principle, that also applies. Now, as Your Honor is saying, there will likely be a pre-hearing period where it's not possible to do a meaningful individualized consideration, figure out, does this person need drug treatment?

[00:15:22] Speaker 03:
Is there a good reason for a bond reduction here where I think they're a safe bet. You can't have a hearing like envisioned in Bearden and Dieters. And so that doesn't mean pre-hearing money bail is off the table. That just means the government needs to satisfy heightened scrutiny. For example, if the judges on remand show that the application of secured money bail prior to a hearing actually furthers appearance rates in a way that an alternative couldn't, then they get to keep their pre-hearing money bail orders. And We get to argue, actually, the overwhelming empirical evidence shows that's not the case.

[00:15:56] Speaker 03:
So there's a heightened scrutiny standard prior to the hearing. Further questions?

[00:16:02] Speaker 05:
Your last statement. So if on remand you're saying they can say, well, hey, we are the new provisions where we get this information at the pre-hearing stage in the first couple of days. We get this information.

[00:16:20] Speaker 05:
and we are considering it before we set bail, then that will be sufficient.

[00:16:28] Speaker 05:
Or are you saying they're going to have to say, we're not only considering it, but we're also stating our reasons?

[00:16:35] Speaker 03:
I think that's a key point. So we squarely plead that they are not considering ability to pay oral alternatives, either at the pre-hearing stage or after. So it's paragraph 55 and paragraph 64 to 65.

[00:16:47] Speaker 03:
But I think that's a key point. If they were satisfying the statutes, there would still be a constitutional problem. The statutes do not guarantee or forbid a constitutionally adequate bail hearing in court, let alone with assistance of counsel.

[00:17:00] Speaker 05:
We are talking about an adverse... You just said you're not challenging the statutes.

[00:17:05] Speaker 03:
I'm trying to explain that now. So... Okay, Your Honor. I'm trying to say... Because Your Honor is asking if they consider our ability to pay in alternatives... at that pre-hearing stage, would that satisfy the Constitution?

[00:17:21] Speaker 05:
Would it satisfy the Constitution? Yeah, I guess.

[00:17:26] Speaker 05:
You're saying you're not challenging the statutes themselves.

[00:17:31] Speaker 03:
That's correct. So I don't think the statute is relevant. But if they were following the statute, that would not satisfy the Constitution. Partly because there's the serious problems about what's happening in court at the hearings.

[00:17:44] Speaker 03:
And then because... you need to satisfy heightened scrutiny for the pre-hearing money bill orders because you can't conduct a Bearden-style, Dieter-style hearing at that stage by definition. But the equal protection clause and the due process clause don't turn off. This is still a deprivation of a fundamental right for a prolonged period. We're talking about up to six days prior to the initial appearance. And another issue in this case is whether that's untimely. But there's still a deprivation. of the fundamental right to pretrial liberty with devastating harms day by day.

[00:18:17] Speaker 03:
And if it doesn't satisfy heightened scrutiny, it's still what the Bearden line of cases calls discriminatory jailing. So they just need to show it satisfies heightened scrutiny. If they consider ability to pay, if they consider the limited information that Section 202 contemplates, that doesn't satisfy heightened scrutiny unless they can show that the money bill order does some good, so to speak.

[00:18:47] Speaker 00:
Thank you.

[00:18:49] Speaker 02:
You might set the record today with 19 minutes. Let's see.

[00:18:54] Speaker 02:
And I intend to give you one minute and hold you to it for rebuttal, and that means, counsel, that you get some extension here yourself if you need it.

[00:19:04] Speaker 02:
As we always say, you don't have to take it.

[00:19:07] Speaker 04:
May it please the court, Sarah Goldberg on behalf of the judges. Yes.

[00:19:15] Speaker 04:
When a defendant is arrested in Utah without a warrant, the magistrate receives a probable cause affidavit from the arresting officer, information from the jail about a defendant's financial circumstances, and, if available, a pretrial risk assessment. Usually within 24 hours, the magistrate makes a judicial determination of whether there was probable cause for the arrest and an initial bail determination. Charges against the defendant are filed by information, usually after this initial decision.

[00:19:45] Speaker 04:
Within seven days after arrest, the defendant appears at an initial appearance where the judge informs the defendant of the charges against him and enters a pretrial status order addressing bail. For indigent defendants, counsel is appointed at this time, and a defendant can postpone the initial appearance and the pretrial status order for up to seven days to consult with counsel and to be prepared to address pretrial release. After the judge issues a pretrial status order, a defendant who alleges he cannot afford the amount of bail may challenge that order at any time with the assistance of counsel and enjoys a rebuttable presumption that he cannot pay.

[00:20:22] Speaker 04:
He's also entitled to an expedited appeal of that decision. The district court correctly held that none of these procedures violate the Constitution.

[00:20:30] Speaker 02:
All of those are statutory and rules. Correct. That's not practice. That's what's in the books. Correct.

[00:20:35] Speaker 04:
That's what's in the Utah Rules of Criminal Procedure and the 7720 line of statutes.

[00:20:43] Speaker 04:
And I think your honors, I think, are correct when you were questioning counsel about whether Utah's rules and statutes apply. Based on the procedural posture of this case, the only live claims are the claims on behalf of the class for prospective declaratory relief. Now, as we discussed, the law changed in the middle of this case, and plaintiffs amended their complaint to add a single plaintiff after the change in the law. to avoid a mootness question for the judges' policies and practices, because you can't assume that once the law changed that the judges aren't following that law.

[00:21:25] Speaker 04:
And if we're just to consider the policies and practices and not the HB 2003 changes that require the jail to collect the financial information and forward it on to the magistrate, There are a couple standing problems.

[00:21:44] Speaker 04:
So, excuse me, the one plaintiff that was added after the change in the law, Denise Byerly, she doesn't allege that she wasn't asked about her financial circumstances.

[00:21:57] Speaker 04:
She doesn't allege anything about what happened at her initial appearance, and that's one of the changes in the law that the judge is required to revisit later.

[00:22:06] Speaker 04:
the bail order at the initial appearance. And at the record, pages 463 to 65 show two separate bail orders, one for the initial bail determination and one at the initial appearance. And the record also shows that for Ms. Byerly, that she had counsel at her initial appearance. That's at 464 to 65 were the minutes from that initial appearance. There's also a redressability problem. Judge Allen was the one who issued Ms.

[00:22:37] Speaker 04:
Byerly's initial bail determination. She's no longer a state district court judge. She's on the federal bench now.

[00:22:47] Speaker 04:
I think everyone agrees that she should be dismissed. There's some disagreement about whether her successor should be appointed. But you can't just, again, if we're looking at policies and procedures, you can't just assume that her successor is not going to comply with the laws.

[00:23:02] Speaker 04:
So this court should do like other courts have done and look at the revised laws in considering this case.

[00:23:12] Speaker 01:
Do you agree that the district court's opinion didn't consider the practices of the individual judge, their conduct in this case?

[00:23:24] Speaker 04:
I think the district court looked at what Utah law requires. So the rules and the statutes, I don't,

[00:23:30] Speaker 01:
So I'm going to take that as a yes, you agree with me. So if that's true, and we liberally construe the plaintiff's complaint to be challenging the judge's conduct and actions, wouldn't the best course of action to be to remand the matter and let the district court consider those claims? Yes.

[00:23:56] Speaker 04:
I think it would be a mistake to construe the complaint that way. I don't see any allegations in the complaint saying that the judges don't follow the current Utah law. I don't see any well-pled facts there. Post-amendment. Post-amendment, that's correct.

[00:24:11] Speaker 04:
And I went back and read Iqbal the other day, took a trip down memory lane, and I think especially for 1983 cases, I mean, they said you can't just attribute... policies and practices to a specific individual without individualized allegations. And all we have here is defendants do not consider this information. And especially when you consider the procedural posture with the amendment. And we attach their motion to amend where they say that they amended to avoid the mootness problem. And the only additions were the new plaintiff I think you have to take that into account too.

[00:24:47] Speaker 05:
So really this is your arguing mootness?

[00:24:52] Speaker 04:
No, I take their point that they are arguing for that due process and equal protection require a little bit more than the statutes require. But most of what they're asking for in the complaint, I think the statutes and rules now cover most.

[00:25:14] Speaker 04:
I think all that's left is really the findings on the record.

[00:25:19] Speaker 01:
That's what I take. But if their claims are that the judges aren't complying with their statutory obligations, isn't that different?

[00:25:27] Speaker 04:
That would be different, but I don't think there's an allegation in the complaint that says that.

[00:25:30] Speaker 01:
So then they wouldn't be precluded from filing a new lawsuit that does allege that in your mind? You wouldn't be showing up in court then and arguing claim preclusion, would you?

[00:25:40] Speaker 04:
I don't think so.

[00:25:44] Speaker 01:
Well, it is or it isn't.

[00:25:47] Speaker 04:
I don't want to hamstring my colleagues later on, but I do not see an allegation in the complaint that the judges do not comply with Utah law. I think that would be a different complaint, too. I think that would be a state court complaint or it would be a challenge to an individual's bail order that, hey, the judge didn't follow the law in my case and there are procedures in place under Utah law for doing that.

[00:26:13] Speaker 04:
Moving on, I guess, to the merits of the issue of the case.

[00:26:18] Speaker 04:
I think your honors really hit on it in trying to figure out what the real claims in the complaint are. To me, the complaint appears to be really focused on the initial bail determination. I know counsel is talking more about the initial appearance up here. But if you're looking at the actual claims in the complaint, I mean, they say that there is no separate claim. bail determination at the initial appearance. And really everything that they complained of is what happened for the initial bail determination.

[00:26:51] Speaker 04:
And I think the case law is very clear that increased procedures are not required at that stage. I mean, Gerstein says it's not practicable to have that. And I know that was the probable cause context. But if we can't apply that case to the initial bail determination, I mean, there's really no point to having the probable cause decision made at the same time. That is also what authorizes, you know, a limited amount of pretrial detention.

[00:27:21] Speaker 05:
Well, aren't you trying to address that, though? Isn't Utah trying to address that with the amendment? Because you do now have some financial information at that stage at the probable cause hearing.

[00:27:36] Speaker 04:
At the initial bail determination and probable cause stage, yes, they do have that information. But that's what I'm saying. That's sufficient procedures. I mean, that's not done in court. No one is present. The prosecutor is not present. Charges haven't been filed at that time. My understanding is that the judges often do that so that they can happen quickly on the weekends or after hours at home in their pajamas. And what plaintiffs are asking for here is a full-blown adversary hearing within 24 hours.

[00:28:06] Speaker 04:
And that's just, as Gerstein recognized, that's just not something that's possible.

[00:28:13] Speaker 04:
And at the initial appearance, then, we do have more protections. There's notice, hearing, opportunity to have counsel appointed. And that decision can be delayed, too, if the Individual wants more time to consult with counsel or have counsel their appointed counsel prepared to address bail Also, just one other thing about procedural due process I think I take it that the plaintiffs are making a facial challenge and So to succeed on that they would have to show that these procedures are never sufficient to have an adequate decision and on bail.

[00:28:56] Speaker 04:
They don't allege, though, that even the decisions in their own cases are not correct. They don't say that the judges haven't imposed the least restrictive, reasonably available conditions of release necessary to ensure that they show up for trial.

[00:29:15] Speaker 04:
And the record shows at pages 199 to 237, these are things from their criminal dockets, most of these plaintiffs had In the past two years, multiple instances of failures to appear, violent felonies, many of them had current charges pending. So I think even for them, there's no allegation that the bail orders were not proper.

[00:29:42] Speaker 01:
We're at the motion to dismiss stage here. I mean, the factual record is what it is at this point.

[00:29:50] Speaker 04:
That's in the record. The court can take judicial notice of the court filings. They were attached to the briefing on the motion to dismiss.

[00:30:02] Speaker 04:
Moving on to substantive due process, there is no fundamental right to be free from pretrial detention. Salerno didn't recognize such a right. It didn't apply strict scrutiny and said that it could not categorically state that pretrial detention offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental.

[00:30:25] Speaker 04:
This court confirmed that in Dawson and Dieters.

[00:30:30] Speaker 04:
And just to go further, the court relies, when it's dealt with similar cases dealing with an asserted right to be free from pretrial detention, instead of applying strict scrutiny, it's applied Bell's punishment test. So it did that in Gaylord, Dodds, and Dawson. And while it's true that decision isn't made, those cases didn't deal with the bail decision, they did deal with an asserted right to be free from pretrial detention or some subset.

[00:31:03] Speaker 05:
Bell dealt with conditions of confinement.

[00:31:07] Speaker 05:
That's entirely distinct.

[00:31:10] Speaker 04:
It's correct that Bell dealt with conditions of confinement.

[00:31:13] Speaker 05:
That's what the district court relied on here, right?

[00:31:15] Speaker 04:
Right.

[00:31:17] Speaker 04:
I was somewhat, somewhat, but the 10th circuit cases, the Dawson looked at whether the conditions resulted in punishment to the, to the detainee.

[00:31:26] Speaker 05:
And that's what the district court talked about here.

[00:31:30] Speaker 04:
Right. That's, that's correct. But I'm saying that the other 10th circuit cases, the right asserted was the right to be free from pretrial detention. So I think there's, that's still relevant, even though bell itself was a conditions of confinement case. And, and, Bell also made clear that financial conditions, that the state has an interest in ensuring that a defendant appears for trial and the financial conditions are necessary to ensure that in many cases.

[00:32:03] Speaker 04:
And at the end of the day, when we're talking about the substantive due process question, I realize that Salerno, there's some debate about what Salerno did and didn't say. But at the end of the day, the burden is on the plaintiffs to show that there's a fundamental right.

[00:32:18] Speaker 05:
Why doesn't Salerno, when it says in the pretrial context, liberty is an important and fundamental right. What is that? What else is that? Why doesn't that answer our question? Because it doesn't. I recognize there's inconsistent statements.

[00:32:35] Speaker 00:
That's the thing.

[00:32:36] Speaker 05:
Should we choose to take that statement at its word? Why doesn't that just answer the question? Isn't pretrial liberty a fundamental right? Why wouldn't it be?

[00:32:46] Speaker 04:
Because this court has interpreted Salerno differently, as have many other courts.

[00:32:51] Speaker 05:
We have some inconsistencies as well in our case law, but we've also recognized that it's a fundamental right. Right. In the Huang and Weber.

[00:33:05] Speaker 05:
We have some cases that have said that, and if we go that route, we need to reverse, correct?

[00:33:13] Speaker 04:
That case has already been reversed, and I think the statement about Salerno and the fundamental right was in DICTA as well.

[00:33:21] Speaker 05:
And I think the... It wasn't reversed on that ground. Correct. I'm saying if we go the route, if we take Salerno at its word, and there's other statements in Salerno, and it seemed pretty clear parts of Salerno, they were applying a heightened scrutiny for sure. If we just take it at its word, don't we need to dismiss, I mean, reverse the dismissal?

[00:33:47] Speaker 04:
I don't think so. And I... Again, I disagree that Salerno says that. Let's say we take it to say that. Let's say we do. Then where are we?

[00:33:57] Speaker 04:
So if you take Salerno to say that there is a fundamental right to be free from pretrial detention, I mean, there probably is a problem with the substance of due process claim. But again, I disagree with that, and I don't think that plaintiffs have done the work to show that it's so deeply rooted in the nation's history and tradition that it's a fundamental right. All they've done is cited Salerno in cases, some cases that interpret it, and with all of the even Tenth Circuit cases that say that it says something different.

[00:34:27] Speaker 05:
Didn't the district court also err when it didn't consider the Bearden v. George line of cases on the equal protection claim, the wealth-based classification claim, I mean, there's a fundamental right question there, too, but obviously, is there a suspect class? The district court said no, but it didn't consider that whole line of cases. Certainly, we are talking about wealth-based classifications here.

[00:34:53] Speaker 05:
Individuals who can pay, if we take their allegations as true, individuals who can pay bail... are walking away. Individuals who can't afford the bail that's imposed without any consideration of their monetary conditions are going to be there for two weeks sometimes. Why isn't that a wealth-based classification?

[00:35:12] Speaker 04:
I think there are a couple reasons that the Bearden line of cases doesn't apply. First of all, that only applies when there's a complete deprivation of a right. Well, wasn't there?

[00:35:22] Speaker 05:
If it's true, if the allegations are true, that there's no consideration of their financial circumstances.

[00:35:31] Speaker 05:
Why isn't that a complete deprivation for someone who can't afford bail?

[00:35:37] Speaker 04:
So that goes back a little bit to is their complaint actually alleging the judge's practices or the laws? I mean, my first answer would be under the laws, it has to be considered. There's not a complete deprivation. The Bearden line of cases only applies when there's a complete deprivation. Here,

[00:35:54] Speaker 05:
Under the current law, there's not a complete deprivation because it does have to be considered. It has to be considered. And they have to have some information.

[00:36:04] Speaker 04:
It has to be considered. And also, an indigent defendant can challenge their bail and have a rebuttable presumption that they can't pay. And the 11th Circuit in Schultz said that that delay... where they might have to wait another few days or a week to have that specific determination on their indigency. That was not an equal protection problem.

[00:36:37] Speaker 04:
So if your honors have no further questions, I ask that you affirm.

[00:36:39] Speaker 02:
Thank you, counsel. Thank you.

[00:36:43] Speaker 02:
Counsel, I promised you one minute, and I mean one minute.

[00:36:51] Speaker 02:
Unless there's a question.

[00:36:54] Speaker 03:
Thank you, Your Honor.

[00:36:56] Speaker 03:
This court has never held under Salerno that there's – this court has never interpreted Salerno to deny that there's a fundamental right to pretrial liberty. And Judge Moritz is exactly right that those other cases are talking about the distinct right against pretrial punishment. I think this appropriate concession that if there's a fundamental right to pretrial liberty and the second concession, also appropriate – that if there's no consideration of ability to pay, there's a bearded violation. That's dispositive here. So the case needs to be reversed.

[00:37:26] Speaker 03:
And I want to talk about the pleading standard. There is no pleading standard. Let me give an extreme hypothetical to illustrate this. If the judges are saying in court, I refuse to consider ability to pay. I will not make any findings on alternatives. I don't care about the Constitution. And we plead that. We have stated a federal claim. whether or not we also cite to some Utah statute.

[00:37:52] Speaker 03:
If I could just say one sentence about the assistance of counsel.

[00:37:57] Speaker 03:
We plead in paragraphs 58, 59.

[00:38:00] Speaker 03:
Typically, no lawyer is present at the initial appearance. Sometimes they're physically present after being appointed, but the clients aren't permitted to speak to them before. So yes, Plaintiff Burley is an example of a case where the minutes reflect a lawyer was physically present. That's not the assistance of counsel. The overwhelming majority of courts, to consider the question of whether the adversary evidentiary hearing that partly concerns the criminal allegations, that's deciding the person's liberty, that's an on-the-record proceeding that could seal the accused's fate, depending on what comes out about the criminal allegations that are, of course, informing the detention decision, the overwhelming majority of courts have held that it's, of course, a critical stage under the Sixth Amendment.

[00:38:42] Speaker 02:
You do one sentence like I do one sentence. Lots of comments. Thank you, Your Honor. Thank you, counsel, both of you for your arguments. Very helpful. The case is submitted.