Final ruling close on civil suit against bail

At a contentious hearing Friday, U.S. District Judge Yvonne Gonzalez Rogers lambasted San Francisco officials for their inability to reach a settlement with the opponents of cash bail. Another settlement conference is scheduled for Wednesday, but the judge said she was moving closer to issuing a final ruling in Buffin et al. v. City and County of San Francisco, 15-CV4959 (N.D. Cal., filed Oct. 28, 2015).

The case began almost four years ago when a Washington, D.C.-based nonprofit, Equal Justice Under Law, sued on behalf of two women who claimed they were given unreasonably high bail for minor crimes. San Francisco Sheriff Vicki Hennessy and City Attorney Dennis Herrera refused to defend the bail system as did then-Attorney General Kamala D. Harris.

This led the California Bail Agents Association to petition for and receive a right to defend the system. But the association has not been party to the settlement talks between Equal Justice and city officials, according to one of their attorneys, Dhillon Law Group Inc. partner Krista L. Baughman.

Hanging over the proceedings is SB 10, a law passed last year phasing out cash bail in California for a system of pretrial assessments. It is on hold pending a 2020 referendum financed by the bail industry.

The plaintiffs and San Francisco officials reached an as-yet still confidential agreement in March, said Phil Telfeyan, executive director of Equal Justice, but it was "torpedoed" by officials with the San Francisco Superior Court even though they are "not a party to this litigation," he alleged.

Gonzalez Rogers issued an order declaring the bail system unconstitutional as a violation of the plaintiffs' equal protection and due process rights under the 14th Amendment.

Earlier this month, the three sides then filed briefs supporting what they argued should be the solution to the constitutional issues raised in the judge's order. The brief submitted by Latham & Watkins LLP, which has been aiding Equal Justice and the plaintiffs, stated the current bail schedule could remain in place "for those who can afford it." It demanded a 12-hour time limit for adjudication of release for those who could not afford bail.

The bail agents' brief argued, "Injunctive relief must be limited to class members ... who cannot afford to pay their set bail amounts." But Baughman said the failure of the plaintiffs to reach a settlement stems in part from a problem their case has had from the beginning.

"In our view, they did not meet their constitutional burden to show a plausible, as effective and less restrictive alternative to bail existed," Baughman said.

San Francisco officials, meanwhile, argued for a "narrow injunction" barring the use of the bail schedule. The city's brief argued, "All arrestees will be released or detained based on an individualized decision" by courts, stating this was consistent with the Legislature's intent in SB 10.

In a separate brief, the San Francisco city attorney's office argued against the 12-hour requirement pushed by the plaintiffs. It noted lack of funding was key to the Superior Court's rejection of the settlement.

This drew a rebuke from Gonzalez Rogers, who said the city attorney's proposal was too similar to one she already rejected. She said the San Francisco proposal would mean "everybody has to wait" in custody.

Baughman said her firm has been working with the bail agents on figuring out how they would respond to an outcome that did away with the bail industry. Besides a direct appeal of the current case, she said, they could file an entirely new legal challenge based on the infringement of "the constitutional right to bail."

"We have been asking the judge to wait and allow settlement discussions to play out," John Coté, communications director for the city attorney, said in an email. "A settlement offers the chance for a better outcome than what the law allows the judge to order if the parties can't agree. A settlement also provides the opportunity for a resolution that involves crucial partners that are not part of this case, including the San Francisco Superior Court."