Constitutionality of money bail debated in papers in federal court

Plaintiffs who are challenging the state’s money bail system have filed a motion asking an Oakland federal judge to declare it unconstitutional, while also seeking to expand the case from San Francisco to all of California.

Phil Telfeyan, executive director of Washington, D.C.-based Equal Justice Under Law, asked U.S. District Judge Yvonne Gonzalez Rogers to declare that San Francisco’s money bail system violates the 14th Amendment.

He also asked the judge to “declare unconstitutional and enjoin” not just the bail schedule in San Francisco but “all state laws that create wealth-based pretrial release processes” in motions filed late last month.

But an attorney for the California Bail Agents Association countered with its own motion, arguing that Gonzalez Rogers should rule that the plaintiffs’ constitutional arguments fail for a variety of reasons.

Harmeet K. Dhillon, the bail agents’ attorney, said in an Oct. 28 filing that there is no precedent for treating people as a protected class based on their income. “As a well-settled matter of constitutional law, wealth is not a suspect classification,” she wrote. Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

Both sides have filed motions for summary judgment, which are scheduled to be considered Dec. 12.

The plaintiffs’ motion for class certification is aimed at ensuring the impact of the case goes beyond San Francisco.

In February, Gonzalez Rogers approved an agreement that gave the bail agents a limited right to intervene in Buffin, following a decision by San Francisco City Attorney Dennis J. Herrera not to defend the case. Other local and state officials, including California’s current and most recent attorneys general, have also said they wouldn’t defend the bail system.

The complaint argues that money bail violates the due process and equal protection rights of low-income defendants.

Equal Justice filed its most recent motions on Halloween. The first asked Gonzalez Rogers to certify the case for class status on behalf of “all arrestees … in custody of the City and County of San Francisco because they cannot afford the bail … and who are otherwise eligible for release.”

Telfeyan alleged that on an average day, the city’s jails hold about 600 people who “are bail-eligible with no holds, suggesting they are incarcerated simply because they cannot pay bail.”

About one in five is either homeless or resides in the city’s poorest zip code, he claimed.

The motion also requests Gonzalez Rogers to order the “release of all individuals eligible for release” across the state and the adoption of “a non-monetary remedial solution.”

These demands go well beyond the relief outlined in the group’s initial complaint. It sought to enjoin San Francisco from enforcing money bail and also requested class certification, though this was later dropped.

Reached earlier this month, Telfeyan touted some of the political figures in California who now oppose the current bail system.

“We are confident that our arguments will prevail and the courts will stand alongside Attorney General Xavier Becerra, Chief Justice Tani G. Cantil-Sakauye, Public Defender Jeff Adachi, City Attorney Dennis Herrera, and San Francisco Sheriff Vicky Hennessy in pushing to bring the money bail system in California to an end,” Telfeyan said.

In the bail agents’ motion, Dhillon said the plaintiffs misconstrue their own constitutional arguments.

“As plaintiffs argue that any bail exceeding what they can pay is excessive and therefore unconstitutional, their claim is actually a challenge under the Excessive Bail Clause of the Eighth Amendment,” wrote the owner of Dhillon Law Group Inc. in San Francisco.

Among the case laws she cited was a substantially similar case filed by Equal Justice, Welchen et al. v. County of Sacramento, 16-CV00185 (E.D. Cal., filed January 29, 2016). The bail agents’ group was not involved in that litigation.

In an October 2016 order, U.S. District Judge Troy L. Nunley dismissed the group’s equal protection and due process claims, granting Sacramento’s request for summary judgment.