State high court seeks briefs in money bail cases that could affect new law

The state Supreme Court has asked for supplemental briefs in three pending cases challenging cash bail in response to Gov. Jerry Brown's signing of a bill that would phase out the current bail system.

Brown signed SB 10 last month. On Oct. 1, 2019, cash bail across the state will be replaced by a system of pretrial trial risk assessment.

An interesting aspect of the cases before the high court is not just that they could be affected by SB 10, but that they could potentially affect the outcome of a constitutional challenge to the new law.

"The court directs the parties in this matter to file supplemental briefing addressing the following question: What effect, if any, does Senate Bill No. 10 have on the resolution of the issues presented by this case?" the court told attorneys involved in one case. In re: Humphrey, S247278 (Ca. Sup. Ct, filed Feb. 27, 2018).

At its regular Wednesday conference, the court also filed identical orders in two other bail cases: In re: Webb, S247074 (Ca. Sup. Ct, filed Feb. 16, 2018); and In re: White, S248125 (Ca. Sup. Ct, filed April 10, 2018).

Each case takes on a distinct aspect of the current bail system. Humphrey and White could become particularly relevant because each addresses a current contradiction around bail in the California Constitution. Humphrey involved a man who claimed he was given unreasonably high bail for a minor offense.

"This is the showdown," said Laura G. Schaefer, attorney for the criminal defendant at the center of White. "This will have a definite effect on the constitutionality of SB 10."

After being arrested as an accomplice in an alleged attempted kidnapping, White was denied bail on the grounds he posed a physical risk to the victim. But after spending several months in jail, he pleaded guilty on some charges and was released on probation -- despite the alleged danger he supposedly still posed.

The San Diego-based partner with Boyce & Schaefer said the outcome won't affect her client but could impact others deemed too risky to release in the future. The case addresses Sections 12 and 28 in Article 1 of the California Constitution.

Section 12 lays out three exceptions to the right to pretrial release, each involving alleged past or potential future violence by the suspect. Section 28 lays out a slightly different set of rights and exceptions to bail, the result of two contradictory ballot initiatives in 2008.

SB 10 undermines both sections and could be found unconstitutional, Schafer said.

"It fundamentally changes the right to bail," Schafer said. "It's creating these different levels of detention. In some of them, there is a presumption of detention, which is completely contrary to Section 12 of our Constitution."

The moves by the high court are not a surprise. Last week, U.S. District Judge Yvonne Gonzalez Rogers of Oakland asked for new briefings and vacated a trial set to begin Monday in a long-running case challenging the bail system in San Francisco. Buffin v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

"We think SB 10 resolves, positively, some of the questions before the court in our favor," said Phil Telfeyan, executive director of Equal Justice Under Law, which filed the case on behalf of two arrestees. "One of the things the court was asking is if there is a viable alternative to the money bail system. The Legislature has said yes."

Telfeyan added that his organization plans to file a new motion for summary judgment in the case.

His opponent in the case, Harmeet Dhillon of the Dhillon Law Group Inc., has said she believes SB 10 is unconstitutional because it effectively removes the right to pretrial release guaranteed under both the U.S. and California constitutions.

Within a day of the signing of SB 10, the bail industry had already launched a referendum drive to overturn the law -- a move that could also delay its implementation. The group formed to back the effort, Californians Against the Reckless Bail Scheme, then received a $401,116 donation from Lexington National Insurance Corp., a Maryland-based company that insures bail bonds providers against losses.

In other actions at its Wednesday conference, the court permanently barred an initiative to split California into three states. The court noted the measure's sponsor, Silicon Valley venture capitalist Tim Draper, did not appoint counsel or mount a legal defense. Draper was listed as a real party in interest. Planning and Conservation League v. Padilla, S249859 (Cal. Sup. Ct., filed July 9, 2018).