Chief justice’s advocacy role on money bail law raises ethics questions

Would California Chief Justice Tani Cantil-Sakauye need to recuse herself from a case before the state Supreme Court challenging the law she supported which will phase out cash bail in California? Or could the political process take down SB 10 before a legal challenge even gets that far?

These are questions both critics and supporters of cash bail are examining in the wake of the historic changes coming to the pretrial detention system — and as a referendum effort to block them gathers strength. Californians Against the Reckless Bail Scheme has gathered $2.8 million in just two weeks, over half from outside California. The committee did not return a call seeking comment.

Cantil-Sakauye made the somewhat unusual choice to dive into the bail debate by speaking out in favor eliminating cash bail and convening a working group that contributed to the bill’s language. She even attended Gov. Jerry Brown’s Aug. 28 signing ceremony for SB 10.

According to a news release from Brown’s office, she praised the “three-branch solution” that led to the bill’s passage.

“This is a transformative day for our justice system,” Cantil-Sakauye said. “Our old system of money bail was outdated, unsafe, and unfair.”

“It’s longstanding practice in California that appellate court justices are not required to, and generally don’t, disclose the reasons for a recusal,” said Cathal Conneely, a spokesman for the Supreme Court. “At this stage, it would be premature to comment on a hypothetical situation.”

If there were a recusal, on any case, the court would use a list of pro tems it has been drawing on since Justice Kathryn Werdegar retired in August 2017. Numerous appeals court justices have filled out the court’s seven-member bench during that time.

The question of whether Cantil-Sakauye should choose, or be forced to, recuse herself is not a simple one, according to law professors.

Charles G. Geyh, a professor at the University of Indiana’s Maurer School of Law who writes on judicial ethics, said it was something “she may need to think seriously about.”

But, he added, judges in ambiguous situations have often chosen not to recuse. The issue could come down to the specific legal question about SB 10 put in front of the court, and whether she has directly weighed in. Critics have claimed SB 10 could face a lawsuit for alleged violations of both the U.S. and California constitutions.

“Would a reasonable person, fully informed of the circumstances, doubt the judge’s ability to be impartial?” Geyh asked. “A reasonable person would not think she would advocated for legislation she thought was unconstitutional.”

Loyola Law School Professor Laurie L. Levenson said Cantil-Sakauye has not at this point violated any judicial canons and would “not necessarily” need to recuse herself due to her comments. She pointed to two circumstances laid out in the California Code of Judicial Ethics.

“The question is whether the Chief Justice herself doubts her capacity to be impartial or the circumstances are such that a reasonable person aware of the facts would doubt the justice’s ability to be impartial,” Levenson said.

Meanwhile, the financial strength of the bail industry was on display in campaign disclosure published Friday morning on the California Secretary of State’s website. Almost $1.6 million of the money came from out of state.

The vast majority of the money appears to have come not from bail bonds companies themselves, but from bond surety companies that insure them. This is a key reason the principal author behind SB 10 also attempted to take on the bail surety industry this year.

“Recent studies have made it clear how little information is available about the global insurance companies who underwrite bail bonds in California,” said Sen. Robert Hertzberg, D-Van Nuys. “There is certainly a lack of consistency compared to how other insurance products are regulated.”

Hertzberg authored SB 898, which would have required surety companies active in California to turn over more information to the Judicial Council, attorney general and insurance commissioner. This would include the total number and value of bonds underwritten.

A member of Hertzberg’s staff said he dropped the bill in late June when it appeared clear that he would be able to pass SB 10 with a full repeal of cash bail, making surety oversight less important.

The industry has also garnered the attention of Insurance Commissioner Dave Jones. Jones has defended his agency against a lawsuit challenging regulations on bail surety companies and issued a report in February calling for move oversight of bail bonds companies and the surety providers behind them.