Litigation
Nov. 4, 2016
Intervention sought in bail constitutionality lawsuit
The California Bail Agents Association has filed a new motion to intervene in a lawsuit challenging the constitutionality of the bail bonds system in California.
Daily Journal Staff Writer
The California Bail Agents Association has filed a new motion to intervene in a lawsuit challenging the constitutionality of the bail bonds system in California.
San Francisco City Attorney Dennis Herrera announced Tuesday that his office would not defend the suit brought by bail reform advocates. Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).
Attorney General Kamala Harris' office said they are reviewing whether to they will defend the suit. Calls to the AG's office on Wednesday were not returned.
Last month, U.S. District Court Judge Yvonne Gonzalez Rogers granted the AG's motion to be dismissed from the case on the grounds of Eleventh Amendment sovereign immunity.
Meanwhile, a pair of Democratic legislators say they will introduce a bill to reform the bail system on Dec. 5, the first day of the new legislative session.
Rogers' opinion also dismissed an earlier bid to intervene by the bail agents' association, or CBAA, with leave to amend.
In her Tuesday motion, the CBAA's lead attorney, Harmeet K. Dhillon, argued that her clients now have the right to intervene in part because "existing parties to the action do not adequately represent the applicant's interest."
Dhillon, the owner of Dhillon Law Group Inc. in San Francisco, said she did not expect Harris' office to rejoin the case.
"If she wanted to defend this law, she could have stayed in the case," Dhillon said.
If the plaintiff's motion is successful, the motion argued, it would wipe out the bail bonds industry across the state.
The suit was filed by Equal Justice Under the Law on behalf of two defendants who said they could not afford bail.
The nonprofit group, based in Washington, D.C., has brought similar lawsuits around the country. This includes a parallel lawsuit in the Eastern District of California, Welchen et al. v. County of Sacramento, 16-CV00185 (E.D. Cal., filed January 29, 2016).
Last month, U.S. District Court Judge Troy L. Nunley rejected a motion by the attorney general's office to be dismissed from that case on Eleventh Amendment grounds. Nunley also dismissed plaintiffs' constitutional claims, with leave to amend.
Phil Telfeyan, executive director of the group and lead attorney in both lawsuits, said the attorney general's office is the "appropriate and necessary" entity to defend the suits.
"What the bail industry does is really independent of the constitutional problems we raise," Telfyan said.
He added the attorney general could order the San Francisco sheriff to defend the case, or the judge could appoint another attorney.
Dhillon's motion noted bail is a constitutional right under both the Eighth Amendment and the state Constitution.
"If some counties are setting bail too high, it's not a constitutional argument, it's a policy argument," Dhillon said.
State Sen. Robert M. Hertzberg, D-Van Nuys, and Assemblyman Rob Bonta, D-Alameda, confirmed that they will introduce legislation designed to make sure defendants don't stay in jail due to a lack of ability to pay bail.
Bonta said he applauded Herrera's decision because he believes the state's bail system raises constitutional issues around due process and equal protection, but stressed that the legislative effort is separate.
"For my purposes, it is not necessary that the money bail system be deemed unconstitutional," Bonta added.
Hertzberg said the bill will demand defendants get a hearing to determine if they are a flight risk or pose a threat to public safety. If not, it will require that there be no bail, or bail the defendant can afford.
"If you're not a risk, you shouldn't be in jail," Hertzberg said. "We got rid of debtors' prison a long time ago."
malcolm_maclachlan@dailyjournal.com
Malcolm Maclachlan
malcolm_maclachlan@dailyjournal.com
For reprint rights or to order a copy of your photo:
Email
Jeremy_Ellis@dailyjournal.com
for prices.
Direct dial: 213-229-5424
Send a letter to the editor:
Email: letters@dailyjournal.com