New lawyers file lawsuit targeting money bail system

An Oakland federal judge has approved a motion to relate a new case to a long-running challenge to the bail system in San Francisco.

The latest case was filed by a legal team including a trio of attorneys with former U.S. Attorney General Eric H. Holder Jr.’s firm, Covington & Burling LLP. Dupree v. Hennessy, 18-CV310 (N.D. Cal., filed Jan. 14, 2018).

U.S. District Judge Yvonne Gonzalez Rogers approved the request Monday after initially inviting the plaintiffs’ attorneys to the case management conference for Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

“As the judge assigned to the case … I find that the more recently filed case(s) that I have initialed below are related to the case assigned to me,” Gonzalez Rogers wrote.

The decision followed an administrative order the judge issued on Thursday saying she was “inclined” to relate the cases.

The initial Dupree complaint stated counsel intended to file a motion to relate the case to Buffin.

“For all members of the proposed class, this case concerns the same questions of law and materially indistinguishable questions of fact,” noted the Dupree complaint.

The motion to relate the cases was filed three days later, on Wednesday. Motions to relate cases are often a prelude to consolidation.

The complaints in both Buffin and Dupree claim the money bail system violates the due process and equal protection rights of the plaintiffs under the 14th Amendment.

The Dupree plaintiffs are two men arrested in San Francisco in recent months. The defendant is San Francisco Sheriff Vicki Hennessy.

“David Dupree, Philip Donatelli, and the proposed class members are eligible for pretrial release but are unable to secure that release because they cannot afford their set bail amounts,” said the complaint. “Defendant’s operation of San Francisco bail system thus harms the proposed class members.”

The Dupree plaintiffs’ team also includes the San Francisco public defender’s office and two attorneys with Hughes Socol Piers Resnick & Dym Ltd., a Chicago firm which often takes pro bono cases.

Last month, Gonzalez Rogers ordered the main plaintiffs’ attorney in Buffin to bring on additional counsel with experience in large class actions by Feb. 8.

Reached earlier on Monday, the lead plaintiffs’ attorney in Buffin indicated he was still moving forward with his case as planned.

“Equal Justice Under Law is currently pursuing working with additional counsel as Judge Yvonne Gonzalez Rogers encouraged,” wrote Phil Telfeyan, the organization’s executive director, by email. “At the same time, we are also hard at work on preparing for trial.”

“The newly filed lawsuit looks like an attempt to raise the same issues that are already raised in the existing lawsuit, but somehow take advantage of the work that has been done to date,” said attorney Harmeet K. Dhillon, the owner of Dhillon Law Group Inc. who represents the California Bail Agents Association.

Last March, Gonzalez Rogers granted the bail agents’ group a limited right to intervene after Hennessy, San Francisco City Attorney Dennis Herrera and then-California Attorney General Kamala D. Harris all opted not to defend the money bail system.

Just over a year ago, the state Legislature signed a contract to hire Holder and Covington as special counsel advising on conflicts with the Trump administration. Senate President Pro Tem Kevin de León, D-Los Angeles, later elected to continue the arrangement with Covington after the Assembly opted to let their side of the contract lapse.

“The Senate has an of-counsel relationship with Covington, and we are consulting them on a number of federal relating topics,” a spokesperson for de Leon said by email. “However, the Senate is not involved with the case.”

Covington, Hughes Socol and the San Francisco public defender’s office did not reply to requests for comment.

The timing of the cases suggests that the plaintiffs’ attorneys may be attempting to aid the legal case against bail in California.

On Friday, one of the Covington attorneys ordered a transcript of a Dec. 12 hearing in the Buffin case, per court records. According to a copy of that transcript obtained by The Daily Journal, Gonzalez Rogers had questioned Telfeyan’s experience in carrying large class action cases.

“You’re asking me to appoint you to represent a class in a very important case, and I’m not sure I can do it, frankly,” Gonzalez Rogers said at one point.