Opposition Brief — Bradley Hester, Petitioner v. Matthew Gentry

No. 22-835

IN THE

Supreme Court of the United States

————

BRADLEY HESTER, ON BEHALF OF HIMSELF AND

OTHERS SIMILARLY SITUATED,

v.

Petitioner,

MATTHEW GENTRY,

Respondent.

————

On Petition for a Writ of Certiorari to the

Supreme Court of Alabama

————

BRIEF IN OPPOSITION

————

JAMIE H. KIDD FRAWLEY

Counsel of Record

KENDRICK E. WEBB

J. RANDALL MCNEILL

WEBB MCNEILL AND WALKER, P.C.

One Commerce Street

Suite 700 (36104)

Post Office Box 238

Montgomery, Alabama 36101

(334) 262-1850

jfrawley@wmwwfirm.com

Counsel for Respondent

May 3, 2023

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

The Question Presented is not properly before this

Court. As discussed herein, Hester’s Petition for Writ

of Certiorari fundamentally mischaracterizes the

nature of the claims and proceedings before the United

States District Court for the Northern District of

Alabama and the United States Court of Appeals for

the Eleventh Circuit. Since its inception – even before

Hester intervened and subsequently became the lead

plaintiff – the focus of this case has always been

indigent criminal defendants. Both the parties’ arguments and the courts’ analyses have consistently been

directed at the question of whether the bail procedures

used by the Cullman County courts impermissibly

violate the rights of indigent defendants when compared to those who were able to secure release under

the bail schedule. Having lost this battle, Hester’s

Petition now improperly seeks to start a new war that

would seemingly challenge Alabama’s entire system of

pretrial detention. This attempt to change tack at this

juncture is due to be denied.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

i

TABLE OF AUTHORITIES ................................

iv

STATEMENT OF THE CASE ............................

1

A.

Procedural History....................................

3

B.

Relevant Facts regarding Alabama’s Bail

System .......................................................

7

REASONS FOR DENYING THE WRIT ............

10

I.

The federal courts lack subject matter

jurisdiction because Sheriff Gentry lacks

authority to either cause or redress

Petitioner’s alleged injury ........................

10

The Eleventh Circuit properly confined

its review to a facial challenge to the

constitutionality of the Standing Bail

Order .........................................................

14

III. The Question Presented is not properly

before this Court .......................................

16

IV. There is no real conflict amongst

appellate courts on the substantive due

process issue..............................................

20

CONCLUSION ....................................................

22

II.

(iii)

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Bearden v. Georgia,

461 U.S. 660 (1983) ...................................

17

Byrd v. United States,

138 S. Ct. 1518 (2018) ...............................

16

Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) ...................................

1

County of Sacramento v. Lewis,

523 U.S. 833 (1998) ...................................

19

Cutter v. Wilkinson,

544 U.S. 709 (2005) ...................................

16

Daves v. Dallas County, Tex.,

64 F. 4th 616 (5th Cir. 2023) ....................

13

Ex parte Young,

208 U.S. 123 (1908) ................................... 11, 12

F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ...................................

16

F.T.C. v. Phoebe Putney Health System, Inc.,

568 U.S. 216 (2013) ...................................

19

Fort Bend County, Tex. v. Davis,

139 S. Ct. 1843 (2019) ...............................

10

Foucha v. Louisiana,

504 U.S. 71 (1992) ............................... 16, 17, 18

Gaines v. Smith,

—So. 3d—, No. 1210304,

2022 WL 17073033

(Ala. Nov. 18, 2022) ............................... 9, 11, 12

Gerstein v. Pugh,

420 U.S. 103 (1975) ...................................

16

v

TABLE OF AUTHORITIES—Continued

Page(s)

Green v. Mansour,

474 U.S. 64 (1985) .....................................

11

In re Humphrey,

482 P.3d 1008 (Cal. 2021) ......................... 20, 21

Lopez-Valenzuela v. Arpaio,

770 F.3d 772 (9th Cir. 2014) .....................

20

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ................................... 10, 11

McMillian v. Monroe County, Ala.,

520 U.S. 781 (1997) ...................................

12

O’Shea v. Littleton,

414 U.S. 488 (1974) ...................................

13

Pugh v. Rainwater,

572 F.2d 1053 (5th Cir. 1978) ...................

21

Reno v. Flores,

507 U.S. 202 (1993) ...................................

16

Schall v. Martin,

467 U.S. 253 (1984) ...................................

17

Seminole Tribe of Fla. v. Florida,

517 U.S. 44 (1996) .....................................

11

Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26 (1976) .....................................

11

Sprint Comm’cns, Inc. v. Jacobs,

571 U.S. 69 (2013) ..................................... 13, 14

United States v. Salerno,

481 U.S. 739 (1987) ............................... 2, 16, 18

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Walker v. City of Calhoun, Ga.,

901 F.3d 1245 (11th Cir. 2018),

cert denied 139 S. Ct. 1446

(April 1, 2019) ....................................... 2, 3, 20, 21

Zinermon v. Burch,

494 U.S. 113 (1990) ...................................

18

CONSTITUTION

U.S. Const. amend. VIII ............................... 4, 18

U.S. Const. amend. XI .................................. 11, 14

U.S. Const. amend. XIV ...............................

2

Ala. Const. Art. I, § 16, as amended by Ala.

Const. Amend. No. 981 .............................

7

STATUTES

Ala. Code §§ 15-13-1, et seq. (1975) ..............

7

Ala. Code § 15-13-3 (1975) ...........................

7

RULES

Ala. R. Crim. P. 7..........................................

7

Ala. R. Crim. P. 7.3(b) .................................. 9, 18

Fed. R. Civ. P. 52 ..........................................

15

Sup. Ct. R. 10 ................................................

22

STATEMENT OF THE CASE

Starting with the “Introduction,” Hester’s Petition is

rife with misstatements regarding the procedural

history of this case, the evidence presented, and the

courts’ holdings. The overarching problem is that the

Petition first mischaracterizes the district court as

having held that the bail procedures violate a fundamental substantive due-process right to pretrial liberty,

and then mischaracterizes the panel as reversing

because there is no fundamental right to pretrial

release. The district court never addressed the kind of

stand-alone substantive due process claim that Hester

is now asking this Court to consider. Indeed, the

point of the panel’s brief comments regarding such a

claim was merely to note that it was not before it.

App. 55a.

The bulk of the district court’s opinion is dedicated

to Hester’s equal protection claims, on which it found

he was likely to prevail. App.154a. The panel

reversed this finding; Hester is not challenging this

decision. The district court then held that Hester was

likely to prevail on his due process claims – but it

conflated the concepts of substantive and procedural

due process, citing Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532 (1985), as support for the

statement that “[t]he substantive right to pretrial

liberty may not be infringed without ‘constitutionally

adequate procedures.’” App.163a. The district court

never characterized any right at issue as “fundamental,” let alone undertake an independent substantive

due process analysis.

The panel’s brief discussion of substantive due

process occurred in context of defining the nature of

the claims before it, as follows:

2

Despite nominally resting on the doctrines of

both procedural due process and substantive

due process, the district court did not significantly rely on the latter for any of its findings.

Indeed, it discussed few substantive due

process cases in its analysis, did not identify

any fundamental right at issue, and did not

seek to provide a remedy for any substantive

due process violation.

This is unsurprising, as our precedent makes

clear that the substantive due process claim

is a nonstarter. . . .In Walker [v. City of

Calhoun, Ga., 901 F.3d 1245 (11th Cir. 2018)],

this court analyzed [United States v.] Salerno,

481 U.S. 739 (1987)] and concluded that it

was a procedural due process case, not a

substantive due process case. 901 F.3d at

1262–65. Pretrial detainees have no fundamental right to pretrial release. If they did,

bail itself would be unconstitutional. But, of

course, it is not—Salerno said as much. And

Hester cannot “avoid the Supreme Court's

holding in Salerno by smuggling a substantive due process claim into the Equal

Protection Clause.”

Each of the district court’s findings do,

however, fit squarely within the rubric of

procedural due process…

App.55a.

The panel’s comments regarding the availability of

a pure substantive due process claim based on a

deprivation of pre-trial liberty for a criminal defendant who has been properly arrested are thus mere

dictum because such a claim was not before it. To be

3

clear, the issue is not that the district court somehow

ignored or itself misconstrued this claim. Hester never

put forth an independent substantive due process

claim. Notably, he did not argue that Walker v. City of

Calhoun, Ga., 901 F.3d 1245 (11th Cir. 2018), cert

denied 139 S.Ct. 1446 (April 1, 2019), on which the

panel based its characterization of the case was

wrongly decided; instead, he argued that Walker

supported his intertwined equal protection/procedural

due process analysis. (Corrected Appellee Br. 44)

It follows that quite literally everything of substance

that Hester says in the Petition regarding the record

in this case, the district court’s decision, and the

panel’s decision is a misstatement of fact and/or law to

some degree. It has all been distorted by Hester’s

attempt to fit the square peg of his equal protection

and procedural due process claims into the round hole

of a specific type of substantive due process claim that

was not presented to the district court or the panel.

This Opposition therefore sets forth the worst of these

misstatements, in addition to addressing the Question

Presented.

A. Procedural History

Hester misstates the procedural history of this case

in the course of his attempt to assign error to the

Panel’s decision on mootness and its interrelated

decision to confine its decision to the facial constitutionality of the Standing Bail Order. For example,

without reference to the record, he criticizes the

Cullman County judicial defendants for adopting the

new Standing Bail Order “just sixteen days before the

long-scheduled preliminary-injunction hearing,” implying that the timing of this decision was suspicious.

Pet.26. But the preliminary-injunction hearing was

not long-scheduled; to the contrary, the hearing was

4

first set before Hester had even filed his preliminaryinjunction motion, with less than two weeks’ notice to

the parties. The parties were eventually afforded

another few weeks to prepare only after filing a joint

motion for an extension and pleading with the court in

a status conference. A brief review of the complicated

and frankly rather chaotic proceedings leading up to

the preliminary injunction hearing provides important

background for the panel’s ruling on mootness and its

decision to approach this case as a facial challenge.

This case was originally filed by Plaintiffs Ray

Charles Schultz, Davon Treshawn Beebe, James Hugo

Sterling, and Tyrone Daishawn Beebe on February 21,

2017, against the “State of Alabama” as a challenge

arguing that cash bail is inherently excessive for

indigent defendants under the Eighth Amendment of

the United States Constitution. D.Ct. Dkt. 1. Sheriff

Gentry was added as a defendant in the first Amended

Complaint on April 18, 2017 (D.Ct. Dkt. 14) but did not

receive any kind of notice of the suit until June 6, 2017,

when a law clerk emailed the county attorney to

inform him that the district court planned to hold a

hearing on a motion for temporary restraining order

that had been filed on June 5 (D.Ct. Dkt. 23). Another

inmate, Randall Parris, then filed a motion to intervene in the case on June 7, the day before the June 8

TRO hearing. D.Ct. Dkt. 31).1 Between the original

Complaint on February 21 and Hester’s motion to

intervene on August 1, both the Schultz and Parris

plaintiffs filed, or attempted to file, multiple amended

1

The motion for temporary restraining order sought immediate release of certain named plaintiffs. It was denied for a lack

of exhaustion. D.Ct.Dkt. 35.

5

complaints with a revolving door of both plaintiffs and

defendants.

Hester sought leave to intervene in this action on

August 1, 2017. D.Ct. Dkt. 76. On August 16, 2017,

Sheriff Gentry and the Judicial Defendants both

notified the court that, while they did oppose the latest

improper filings by the other would-be plaintiffs, they

did not oppose intervention by Hester. D.Ct. Dkt.Docs.

83, 84. Hester’s motion (and the other various pleadings and motions) then remained pending for almost

seven months, until Hester filed an unopposed motion

on March 6, 2018, asking that the district court set a

status conference in order to address intervention and

the timing of further proceedings. D.Ct. Dkt. 93.

On March 8, 2018, in a text order, the district court

granted Hester’s Motion to Intervene and ordered him

to file a complaint; motion for preliminary injunction;

and a motion to certify class by March 12, 2018. D.Ct.

Dkt. 94. It also set a hearing on the not-yet-filed

motion for preliminary injunction on March 21.

On March 9, 2018, the parties filed a joint motion

for an extension of time on the briefing schedule. D.Ct.

Dkt. 97. The Judicial Defendants specifically stated in

that Motion that:

“they have not been idle during the pendency

of Hester’s motion to intervene. Counsel for

Intervenor [Judicial] Defendants have met

with the relevant judicial officials to discuss

reducing bail procedures to a formal, written

procedure that would allow an orderly

presentation of the constitutional issues to

the Court. As a precursor to the adoption of a

written order on bail procedures, Defendants

have found it expedient to make certain

6

upgrades to allow for the more efficient

processing of pretrial detainees. This includes the installation of an electronic

warrant system for the use of both court and

law enforcement officials in Cullman County,

as well as training on this system, that

occurred on March 1, 2018.

Intervenor

[Judicial] Defendants believe that they will

be able to issue a formal, standing order on

bail procedures within the next two weeks,

and that these bail procedures will significantly clarify the nature of the constitutional

issues before the Court on Hester’s motion for

a preliminary injunction. As a result, Intervenor Judicial Defendants would request an

extension of time to formally adopt written

bail procedures in order to better respond to

Hester’s motion for a preliminary injunction.”

D.Ct. Dkt. 97, ¶¶ 5-6.

For his part, Hester also requested an extension of

time to file both his motion for a preliminary injunction and to file a reply to any written opposition “to

reflect new developments in case law since the time he

filed his motion to intervene” and “to allow him time

to sufficiently analyze their written bail procedures

and respond accordingly.” D.Ct. Dkt. 97, ¶ 6.

The district court set a telephone status conference

for March 13, 2018, to discuss the case. D.Ct.Dkt. 99,

100. In the meantime, Hester filed his motion for preliminary injunction on March 12, 2018. D.Ct.Dkt. 102.

On March 14, 2018, the district court ordered that

oppositions be filed on or before March 28; that a reply

by Hester be filed on or before April 9, 2018; and that

the hearing would be held on April 12, 2018. D.Ct.

Dkt. 111.

7

On March 22, 2018, the Parties submitted a joint

status report agreeing that, inter alia, Hester’s Complaint

would be the operative complaint in this action. D.Ct.

Dkt. 115. All other complaints and plaintiffs were

dismissed as of March 27, 2018. D.Ct. Dkt. 119. The

preliminary injunction hearing would eventually be

held over the course of three days in April 2017.

B. Relevant Facts regarding Alabama’s Bail

System

As the panel and district court discuss, the procedures used by Cullman County’s judges to set the

terms and conditions of pretrial release do not arise

out of a vacuum, but are instead governed by Ala.

Const. Art. I, § 16, as amended by Ala. Const. Amend.

No. 981, Ala. Code §§ 15-13-1 et seq., and Alabama

Rule of Criminal Procedure 7. App.3a-5a, 131a, 139a.

Instead of discussing these provisions of law, however,

the Petition opts to engage in a generalized overview

of “Historical and Modern Bail Practice” that does not

speak to the facts of this case.

Prior to January 1, 2023, all offenses except capital

murder were bailable as a matter of right in Alabama.2

After the ratification of Ala. Const. Amend. No. 981,

also known as “Aniah’s Law” in the memory of a

college student who was kidnapped and murdered by

a man who was out on bond despite being charged

with multiple violent crimes, bail may be denied for a

2

It is worth noting that certain persons are not eligible for

immediate release even on a bailable offense under Alabama law,

including, but not limited to, persons who are intoxicated when

arrested, who are arrested for domestic violence, or who are

subject to holds from other jurisdictions, i.e., for outstanding

warrants. These persons were excluded from the preliminary

injunction, which exclusion was not appealed by Hester. App.189a.

8

person charged with several other violent crimes,

including kidnapping, rape, domestic violence in the

first degree, aggravated child abuse, etc. Ala. Code

§ 15-13-3 (1975). The statute sets out a procedure for

a pretrial detention hearing in such cases. This Petition

does not appear to be directed at the procedures laid

out in Aniah’s Law, which would presumably moot

portions of this suit and/or at least narrow the

proposed class.

The presiding judge of the Cullman County Circuit

Court issued the Standing Bail Order (“SBO”) on

March 26, 2018 (App. 195a-202a), which implements

the requirements of Alabama law as to those persons

who have been charged with bailable offenses. Hester

states throughout the Petition that detainees are

“typically” held for weeks both before and after the

implementation of the SBO without any meaningful

opportunity for the reconsideration of the terms

and conditions of their release. This claim is a major

misstatement of fact. The record established that the

vast majority of persons arrested in Cullman County

were in fact able to make bond based on the specific

amounts set by the Cullman County judges and were

released almost immediately, even before the implementation of the SBO, and many of the persons who

were held for over forty-eight hours were ineligible

for release. App.6a-7a; 161a; Appellants’ 11th Cir.

Appendix, Vol. III, pg. 18. The number of people who

actually stayed in jail until trial was a “minute

amount.” 11th Cir. App. Vol. III, 47.

The SBO requires that, pursuant to Alabama law, a

criminal defendant who is unable to post the bond set

in the bond schedule (for warrantless arrests) or the

arrest warrant, or for whom a Bail Request Form has

been submitted, “shall be entitled to a judicial deter-

9

mination of the conditions of their release promptly

after arrest, but in any even no later than 72 hours

after arrest.” App.198a. It requires that the judge

impose “the least onerous conditions contained in Rule

7.3(b) of the Alabama Rules of Criminal Procedure

that will reasonably assure the defendant’s appearance

or that will eliminate or minimize the risk of harm to

others or to the public at large,” taking into account

the fourteen factors set forth in the Alabama Rules

of Criminal Procedure. App.199a-201a. It prohibits

a judge from requiring a secured appearance bond “if

there is a less onerous condition that would assure the

defendant’s appearance or minimize risk to the public”

and “requires a written finding as to why the posting

of a bond is reasonably necessary to assure the

defendant’s presence at trial in such a case.” App.

201a-202a. A criminal defendant who is still in custody

seventy-two hours after arrest, who has not been given

this hearing, must be released on an unsecured appearance bond in the minimum scheduled amount. App.202a.

Alabama law imbues the courts, not Sheriff Gentry,

with the power to determine the terms and conditions

of pretrial release and to conduct hearings regarding

these terms. See, e.g., Gaines v. Smith, —So. 3d—, No.

1210304, 2022 WL 17073033 (Ala. Nov. 18, 2022)

(rejecting § 1983 challenge against sheriff and deputy

to duration of detention on separation of powers

grounds). Sheriff Gentry’s only real power is to

determine in the first instance whether certain

property is sufficient security to meet the terms and

conditions of the bond, and his policy is to be as

generous as possible in making such decisions,

accepting property as security for a bond up to an

amount equal to 100% of the tax assessed value of

property, without requiring any surrender of the

property or the production of underlying documenta-

10

tion beyond publicly available records. 11th Cir.

Appendix, Vol. III, pgs. 28-29. He testified that property bonds are a very effective method of involving the

community and a detainee’s support system, both for

the purposes of assuring the detainee’s appearance

and for public safety purposes, and that executions

against bonds are virtually nonexistent. Id., pgs. 3032, 49-50, 52-55.

REASONS FOR DENYING THE WRIT

I. The federal courts lack subject matter

jurisdiction because Sheriff Gentry lacks

authority to either cause or redress

Petitioner’s alleged injury.

As an initial matter, this Response should not be

considered consent to the jurisdiction of this Court or

any other court in this matter; Respondent Sheriff

Gentry does not waive his arguments regarding the

lack of subject matter jurisdiction over the claims

alleged against him, but fully reserves the right to reassert all such arguments if certiorari is granted.

Both standing and sovereign immunity deprive this

Court of subject-matter jurisdiction over Hester’s

claims. Issues of subject-matter jurisdiction may be

raised at any point in the litigation, and may even be

considered sua sponte. See Fort Bend County, Tex. v.

Davis, 139 S. Ct. 1843, 1849 (2019). The “irreducible

constitutional minimum” of standing imposes a

burden on a plaintiff to show three elements: (1) that

he has “suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant,

and (3) that is likely to be redressed by a favorable

judicial decision.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 (1992). The traceability element requires “a

causal connection between the injury and the conduct

11

complained of—the injury must be ‘fairly traceable to

the challenged action of the defendant, and not some

third party not before the court.’” Id. at 560 (emphasis

added) (quoting Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26, 41-42 (1976)). As to the redressability

element, the relief requested must actually remedy the

complained-of injury. Id. at 568.

Sovereign immunity, as memorialized in the

Eleventh Amendment, similarly limits subject-matter

jurisdiction by barring suits against nonconsenting

States. See Seminole Tribe of Fla. v. Florida, 517 U.S.

44, 72-73 (1996). This immunity from suit extends to

State officials also, except to the limited extent

permitted under the Ex parte Young exception. See id.

That exception allows suit “against a state official

when that suit seeks prospective injunctive relief in

order to ‘end a continuing violation of federal law.’” Id.

(quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).

And, somewhat similar to standing’s traceability

element, Ex parte Young itself confirmed that the State

official must have “some connection” to the action

challenged “or otherwise it is merely making him a

party as a representative of the state, and thereby

attempting to make the state a party.” 208 U.S. 123,

157 (1908).

An intervening decision of the Supreme Court of

Alabama confirms that Sheriff Gentry lacks the Statelaw authority required to establish subject-matter

jurisdiction over him. See Gaines v. Smith, —So. 3d—,

No. 1210304, 2022 WL 17073033 (Ala. Nov. 18, 2022).

In Gaines—issued about four months after the panel’s

decision below—the Supreme Court of Alabama held

that a sheriff and his deputy were not proper

defendants in a § 1983 suit challenging plaintiff ’s

alleged detention for about a month following his

12

arrest without a hearing. 2022 WL 17073033, at *4-5.

Relying on the express separation of powers contained

in the Alabama Constitution, Gaines reaffirmed that

an Alabama sheriff and his deputies “are part of the

State’s executive branch,” and thus “the Alabama

Constitution forbids them from exercising the legislative or judicial power.” Gaines, 2022 WL 17073033, at

*5; see also McMillian v. Monroe County, Ala., 520 U.S.

781 (1997). The “power to decide whether a defendant

is entitled to remain at large on bail is a judicial

power.” Id. (emphasis added) (internal quotations

omitted). Accordingly, sheriffs lack such power.

The panel’s holding that Hester has standing to

bring his claims against Sheriff Gentry is thus in

direct contradiction with the authority granted to him

by Alabama law. The panel’s standing decision rested

on its conclusion that Hester’s injury was “traceable to

the Sheriff’s decision not to promptly release him from

jail.” App. 23a (emphasis added). But Gaines rejects

this conclusion and confirms that Sheriff Gentry does

not have the authority to make any such decision.

Because Sheriff Gentry could not decide the conditions

under which pretrial detainees would be released

(even more so going forward post-Gaines), Hester’s

claims are neither traceable to Sheriff Gentry nor

sufficiently connected to him to satisfy Ex parte Young.

And because Sheriff Gentry could not decide to release

pretrial detainees in contradiction of the judicially

issued (and facially valid) Standing Bail Order,

Hester’s claims are likewise not redressable by Sheriff

Gentry either. Accordingly, Hester’s claims against

Sheriff Gentry lack subject-matter jurisdiction on both

standing and sovereign immunity grounds.

The shifting nature of Hester’s claims to focus

purely on his alleged substantive due process rights

13

only accentuates the fact that what he is really

challenging is the underlying correctness of the State’s

judicial officials’ decisions regarding pre-trial detention.3 Among the many problems with this strategy,

Hester’s attempts to collaterally litigate those decisions runs afoul of Younger abstention, as the en banc

Fifth Circuit recently held (relying heavily on this

Court’s decision in O’Shea v. Littleton, 414 U.S. 488

(1974)). See Daves v. Dallas County, Tex., 64 F.4th 616

(5th Cir. 2023) (en banc). Younger abstention is likewise warranted here because pretrial release hearings

are part of criminal proceedings that (1) were ongoing

as to Hester (and, by definition, the class members) at

the time this litigation began; (2) implicated important state interests in pre-trial detention; and

(3) Hester and the class members had an adequate

opportunity to raise constitutional challenges in those

proceedings (despite the panel’s contrary one-sentence

conclusion unsupported by any citation, App.16a). See

Sprint Comm’cns, Inc. v. Jacobs, 571 U.S. 69 (2013)

(explaining the preconditions for Younger abstention).4

3

Hester does not name any of the judicial defendants below as

respondents here, see Pet. at ii, or otherwise seek review of the

panel’s dismissal of judicial defendants on the grounds that they

were not enjoined by the district court and thus were themselves

improper parties below, see App.27a. But even if he had, such

claims would appear to be barred by judicial immunity, as those

defendants argued below. See App.27a.

4

The panel below incorrectly rejected Younger abstention on

the grounds that “Hester is not asking us to enjoin any

prosecution.” App.15a. But even if it were true that the bond

hearing were not part of a criminal proceeding itself—indeed one

of the very first judicial steps in those proceedings—it certainly

“involv[es] certain orders uniquely in furtherance of the state

courts’ ability to perform their judicial functions,” which is

14

Hester has the wrong parties and the wrong vehicle

for his claims. Hisattempt to avoid the restrictions on

his claims challenging inherently judicial acts through

the convenient expedient of seeking an injunction

against Sheriff Gentry is due to be denied. But if the

Writ were to issue, Sheriff Gentry would request that

the Parties be required to address the issue of whether

subject matter jurisdiction exists in this case, both as

to the question of Eleventh Amendment immunity and

as to Hester’s standing, and the issue of whether

Younger abstention bars Hester’s attempts to

circumvent the State judicial process.

II. The Eleventh Circuit properly confined

its review to a facial challenge to the

constitutionality of the Standing Bail

Order.

First, Hester’s objection to the panel’s mootness

ruling is without merit. As to his argument that the

panel should not have considered only the post-SBO

procedures: the district court also confined its analysis

only to the “new criminal pretrial procedures,” without

objection by Hester. App.146a-147a. He has accordingly waived his arguments as to whether the pre-SBO

procedures should have any bearing on this case.

Further, his argument on this point conflates voluntary cessation doctrine with the mootness exception

for cases capable of repetition but evading review.

Likewise, Hester’s attempt to assign error to the

panel’s decision to consider his challenge only as a

facial one is also without merit. As stated by the

panel, it is not entirely clear from the district court

opinion whether or to what extent that court even

another type of proceeding that justifies abstaining under

Younger. Sprint, 571 U.S. at 78 (internal quotation omitted).

15

attempted a true as-applied analysis under the SBO.

App.28a. In addition to the jurisdictional considerations cited by the panel, it correctly held that the

minimal “findings of fact” made by the district court

were not sufficient to maintain an as-applied challenge. Hester’s arguments on this point significantly

overstate the district court’s conclusions. The district

court did not find that the post-SBO procedures

“largely mirrored the county’s pre-SBO practices.”

Pet., 24. Instead, it merely noted that the “limited

evidence that the defendants did offer indicates that

officials in Cullman County do not always comply with

the written requirements in the new Standing Order,”

citing a single example. App.144a. There are three

problems with Hester’s attempt to expand this statement into a “finding of fact” that must be respected

under Fed. R. Civ. Pro. 52. First, an “indication” based

on “limited evidence” does not meet the Rule’s standards. Second, defendants did not have the evidentiary

burden. And, third, the SBO provides that a review of

bail conditions must occur within seventy-two hours,

not forty-eight hours, as suggested by the district

court.

Finally, Hester’s attempt to place the blame for the

paltry record concerning post-SBO practices at the

hearing on Sheriff Gentry is without merit. Setting

aside the fact that Sheriff Gentry had no control over

when the Standing Bail Order would be promulgated

by the Judicial Defendants, the procedural history

reviewed supra makes it clear that the SBO was not

implemented in a last-minute attempt to manipulate

a “long-scheduled” hearing, because the hearing was

not long-scheduled, but rather was sprung on the parties

with little notice in a chaotic flurry of proceedings

occurring in approximately a month.

16

III. The Question Presented is not properly

before this Court.

It is well-established that this Court is “one of final

review, ‘not of first view.’” F.C.C. v. Fox Television

Stations, Inc., 556 U.S. 502, 529 (2009) (quoting Cutter

v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005)).

This Court therefore does not ordinarily decide issues

that are not presented or decided below. Id.; see also,

e.g., Byrd v. U.S., 138 S.Ct. 1518, 1526-27 (2018). As

discussed supra, Hester did not bring an independent

substantive due process claim, and neither the district

court nor the Eleventh Circuit ever considered such a

claim. The Petition is accordingly due to be denied

because the Question Presented is not properly before

this Court.

Even before this Court, Hester’s arguments still do

not fit into the rubric of substantive due process.

Substantive due process “forbids the government to

infringe certain ‘fundamental’ liberty interests at all,

no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state

interest.” Reno v. Flores, 507 U.S. 202, 301-302 (1993)

(emphasis in the original). This “analysis must begin

with a careful description of the asserted right. . .” Id.

In defining the right at issue, it is helpful to note what

is not at stake in this case. This case does not involve

pre-trial detention without a sufficient judicial determination of probable cause to support an arrest. Cf.

Gerstein v. Pugh, 420 U.S. 103 (1975). Nor does it

involve explicit detention orders, c.f. United States

v. Salerno, 481 U.S. 739 (1987), nor limitless noncriminal incarceration, c.f. Foucha v. Louisiana,

504 U.S. 71 (1992). It is instead concerned with the

conditions of release for pretrial detainees who have

been validly arrested – even more specifically, it is

17

concerned with when a pretrial detainee can be held

because they cannot provide the collateral required to

secure their release on bail.

Petitioner Hester claims that he seeks only “modest”

relief: “that government have a good reason to keep

people in jail cells pretrial.” Pet. 29. A proper independent substantive due process claim would challenge

the validity of the underlying “good reason” to impose

the challenged conditions, while a procedural due

process claim looks to the fairness of the procedures.5

These are “two separate inquiries.” Schall v. Martin,

467 U.S. 253, 263-64 (1984). The Schall Court accordingly first held that “preventative detention” of juveniles accused of a crime during the pretrial process

served a legitimate state objective, 467 U.S. at 264-65,

and then examined “whether the procedures afforded

juveniles detained prior to fact-finding provide sufficient

protection against erroneous and unnecessary deprivations of liberty,” ultimately finding that the state’s

“flexible procedures” met the requirements of procedural due process. Id. at 274.6 In contrast, in Foucha

v. Louisiana, this Court held that a state may not

indefinitely confine a person who has not been con5

An equal protection claim goes a step farther, examining the

relative fairness of the treatment of indigent and non-indigent

criminal defendants. As this Court recognized, this inquiry is

“substantially similar to asking directly the due process question

of whether and when it is fundamentally unfair or arbitrary” for

a State to take action because of a failure to pay. Bearden v.

Georgia, 461 U.S. 660, 665-666 (1983). Again, however, Hester is

not seeking certiorari on the Eleventh Circuit’s reversal of the

district court’s favorable finding on his equal protection claim.

6

Schall also considered the question of whether the pretrial

detention amounted to an improper imposition of punishment.

467 U.S. 269-74. Hester has not made a similar argument at any

point in this litigation.

18

victed of a criminal offense, is not currently accused of

a criminal offense, and is not both mentally ill and

dangerous merely because it believes that he might

pose a danger to others, “regardless of the fairness of

the procedures used to implement” the law. 504 U.S.

71, 80-81 (1992) (quoting Zinermon v. Burch, 494 U.S.

113, 125 (1990)). Similarly, to the extent that Salerno

dealt with substantive due process, it did so in the

context of examining whether the federal government’s interest in preventing future criminal activity

by a pretrial detainee was compelling enough to ever

justify unconditional pretrial detention, regardless

of the procedures used. 481 U.S. at 744-750. The

Salerno Court held that the “government’s interest in

preventing crime by arrestees is both legitimate and

compelling.” Id. at 750.

The Standing Bail Order requires that a judge

impose “the least onerous condition or conditions contained in Rule 7.3(b) of the Alabama Rules of Criminal

Procedure that will reasonably assure the defendant’s

appearance or that will eliminate or minimize the risk

of harm to others or to the public at large.” App.199a.

Hester has never and does not now challenge whether

these interests may be compelling enough to justify

imposing secured bail in some cases, even if doing

so may result in some criminal defendants remaining

in pretrial detention. He instead argues that the

Standing Bail Order is unconstitutional not because

of the standard for setting conditions of release per se,

but because its procedural requirements are not

robust enough to ensure that the Cullman County

judges will make good decisions as to the amount of

bail required in individual cases, given the importance

of the liberty interest at stake. Of course, individual

challenges to unaffordable bail are also not substantive due process challenges, but rather Eighth

19

Amendment excessive bail challenges. See County of

Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (holding

that challenges to enumerated rights cannot be

brought under substantive due process clause).

Several of Hester’s amici curiae say the quiet part

out loud, unabashedly arguing that bail schedules

should be entirely eliminated, and that secured bail

should never be based on concerns of public safety. See

ABA Brief, 9-10. These arguments are not properly

before this Court, as they have never been raised by

Hester and were not considered by the lower court.

See F.T.C. v. Phoebe Putney Health System, Inc., 568

U.S. 216, 226, n.4 (2013). Such claims would have to

be brought as challenges to the various provisions of

Alabama law itself, specifically including the Alabama

Rules of Criminal Procedure. It is wholly inappropriate to attempt to saddle a single sheriff with the task

of defending the entirety of Alabama’s system of pretrial

release, when he has no authority to enforce a different system, and could even conceivably be subject to

impeachment for countermanding facially valid judicial

orders. This case is simply not the correct vehicle for

such arguments.

The Eleventh Circuit panel correctly characterized

Hester’s arguments as presenting only a question

of procedural due process under the United States

Constitution, this Court’s precedents, and its own

unchallenged precedent. The panel’s “nonstarter”

comment was plainly directed at the attempt to

conflate substantive and procedural due process

analyses that should remain separate. App.55a. But

instead of fairly confronting the Eleventh Circuit’s

published opinion on its own terms, Hester takes a few

brief lines in the majority’s lengthy opinion out of

context. The Petition is accordingly due to be denied

20

because the pure substantive due process issue in the

Question Presented is not properly before this Court.

IV. There is no real conflict amongst appellate

courts on the substantive due process

issue.

Hester’s claim that the Eleventh Circuit’s ruling

conflicts with those of other appellate courts is again

based on a mischaracterization of the opinion as

holding that the right to pretrial liberty is never

protected by the substantive due process clause, as

opposed to merely finding that Hester’s claims in this

case do not sound under the substantive due process

clause. He first cites Lopez-Valenzuela v. Arpaio, 770

F.3d 772 (9th Cir. 2014) (en banc), as an example of a

circuit split. Lopez-Valenzuela is a useful example of

a pure substantive due process case involving a

challenge to a state’s reason for imposing pretrial

detention. There was no question of the validity of any

procedures in that case; the provision at issue was

instead a categorical denial of bail to undocumented

immigrants without any individualized determination

whatsoever. 770 F.3d at 782.

There are also no real conflicts as to the questions of

federal law between the Eleventh Circuit’s decision in

this case and the state appellate court decisions cited

by Hester. For example, in In re Humphrey, the

Supreme Court of California held that equal protection and substantive due process required some sort

of individualized determination be made whenever a

pretrial detainee could not meet the requirements of

his secured bail, citing Walker as an example of a

consistent opinion on the issue. 482 P.3d 1008, 1018

(Cal. 2021). Again, the Standing Bail Order is not a

categorical denial of bail or even of unsecured bail, but

instead provides for an individualized determination

21

for each criminal defendant who cannot make bond

under the schedule. Admittedly, there are some

differences in the procedures that the Eleventh Circuit

upheld in this case and Walker and those discussed

in In re Humphrey; however, the Humphrey court’s

holdings as to the separate question of what procedures are due to a pretrial detainee were largely

explicitly based on California law. Id. at 1019-1020.

Finally, Hester’s attempt to claim that this case

conflicts with Pugh v. Rainwater, 572 F.2d 1053

(5th Cir. 1978) (en banc) is completely without merit.

Pugh specifically upheld Florida’s implementation of a

rule incorporating a master bond schedule against a

challenge that it was facially unconstitutional merely

because it failed to embody a presumption against

money bail. 572 F.2d at 1057-59. As recognized by

Pugh, a pure substantive due process challenge

must consider a broad range of criminal defendants:

“Money bail, however, may not be the most burdensome requirement in all cases. A moneyed visitor in

a city far removed from his home might find certain

of the alternative forms of release infinitely more

onerous. Utilization of a master bond schedule provides speedy and convenient release for those who

have no difficult in meeting its requirements.” 572

F.3d at 1057. Far from creating a circuit split, the

panel decision below repeatedly relied on Pugh as

“binding precedent” that is “nearly indistinguishable”

from this case. App. 29a.

22

CONCLUSION

The panel for the Eleventh Circuit Court of Appeals

correctly premised its reversal on two issues: equal

protection and procedural due process. Petitioner

Hester is not seeking certiorari of the actual decision

below, but is instead belatedly attempting to reshape

his arguments into an independent substantive due

process claim that has never been part of this case.

This strategy appears to be an attempt to justify

a grant of certiorari by manufacturing a conflict

amongst appellate courts. Despite his abandonment

of his equal protection and procedural due process

claims, however, his arguments against the Standing

Bail Order are still fundamentally procedural in

nature. Hester’s Petition for Writ of Certiorari does

not meet the standards set forth in Sup. Ct. R. 10 and

is accordingly due to be denied.

Respectfully submitted,

JAMIE H. KIDD FRAWLEY

Counsel of Record

KENDRICK E. WEBB

J. RANDALL MCNEILL

WEBB MCNEILL AND WALKER, P.C.

One Commerce Street

Suite 700 (36104)

Post Office Box 238

Montgomery, Alabama 36101

(334) 262-1850

jfrawley@wmwwfirm.com

Counsel for Respondent

May 3, 2023