Posted 2/5/2016

Buffin, et al. v. City and County of San Francisco, et al., 2016 WL 374230 (N.D. Cal. February 1, 2016), is one of the many class actions being brought by Equal Justice Under Law that assert that bail schedules are unconstitutional.  This action is against the City and County of San Francisco and the State of California.  This decision involves the court’s ruling on a number of motions: the State’s motion to dismiss on grounds of sovereign immunity, the City’s motion (joining with the State) to dismiss based on the abstention doctrine under Younger v. Harris, the City’s motion for a more definite statement, the plaintiff’s motions for preliminary injunction and class certification, and a motion to intervene brought by the California Bail Agent’s Association

There were two plaintiffs as representative of the class.  Riana Buffin was arrested on October 26, 2015, for grand theft.  Her bail was set at $30,000.  On October 28, 2015, Buffin was released from jail and her case was dismissed.  Crystal Patterson was arrested on October 27, 2015, for assault with force causing great bodily injury.  Her bail was set at $150,000, which she posted.  She was released on the same day.  Following her release, Patterson was discharged and no charges were formerly filed against her.  In each case, bail was set presumably in accordance with a bail schedule. 

The court granted the State’s motion to dismiss on sovereign immunity grounds, stating that the Eleventh Amendment bars federal lawsuits brought against the state. 

The court denied the City’s motion to dismiss based on the Younger abstention doctrine, which instructs federal courts to refrain from hearing constitutional challenges to state action when federal action would be regarded as an improper intrusion on the state’s authority to enforce its laws in its own courts.  The court stated that the first condition under the abstention doctrine, as enunciated by Younger v. Harris, was that state judicial proceedings must be ongoing.  The court noted that neither plaintiff was formerly charged, and thus never subject to an ongoing state proceeding. 

The court granted the City’s motion for a more definite statement.  The court stated that it is unclear precisely what legal challenges against the City are being made by the plaintiffs.  The court noted that it is unclear whether the plaintiff is challenging the State law directing superior court judges to prepare a bail schedule or challenging how the City applies the State law.  Further the court was not sure how the City is involved in the challenge, as the terms of bail and other conditions are set by superior courts and not the City. 

In light of the grant of the motion for a more definite statement, the court denied the plaintiff’s motion for preliminary injunction and class certification without prejudice.  Similarly, the court denied the motion to intervene brought by the California Bail Agent’s Association as premature. 

Walker v. City of Calhoun, 2016 WL 361612 (N.D. Ga. January 28, 2016), is one of the many class actions being brought by Equal Justice Under Law that assert that bail schedules are unconstitutional.  (The court certified the class in a related decision as “All arrestees unable to pay for their release who are or will be in the custody of the City of Calhoun as a result of an arrest involving a misdemeanor, traffic offense, or ordinance violation.” Walker v. City of Calhoun, 2016 WL 361580 (N.D. Ga. January 28, 2016).)

In this case, the court is ruling on the plaintiff’s motion for preliminary injunction.  The plaintiff, as representative of the class, was arrested and charged with “being a pedestrian under the influence.”  The plaintiff was required to pay a cash bond of $160.  The plaintiff claimed he was indigent and could not afford to post the bond.  The plaintiff asserted that the bail schedule violates his rights under the Fourteenth Amendment of the U.S. Constitution and 28 USC § 1983.  He asserted his liberty was deprived because he could not afford to pay the cash bond.  The bail schedule does not consider individualized factors.  The City presented documentation that showed that the plaintiff was released from custody six days after his arrest and that the $160 bond was posted.  The City also submitted a Standing Order by the Calhoun Municipal Court that required individuals who cannot post bond to appear before the court 48 hours after arrest.  Per the Standing Order, the individual shall be given an opportunity to object to the bail amount and the court shall determine if the individual in indigent.  If the court finds that the individual is indigent, he or she shall be subject to release on recognizance.  (Apparently, the Standing Order was issued after the lawsuit was initiated.) 

The City argued that the plaintiff failed to show irreparable harm caused by a short incarceration in jail.  Further, the plaintiff’s threatened injury was moot in light of the issuance of the Standing Order.  In addition, the City argued that an injunction would not serve the public interest.  The Municipal Court would be overwhelmed by “an endless cycle of bench warrants, incarceration, and re-release for inability to pay.”  The City also argued that the plaintiff’s suit should have been brought as a habeas petition, and that the City is not the proper defendant because the Municipal Court establishes the bail schedule. 

The court granted the preliminary injunction, finding that the plaintiff has demonstrated a substantial likelihood of success on the merits of the claims.  The court held, “Any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause.”  The court held that the Standing Order does not remedy the defect because any detention based solely on ability to pay is impermissible.  The Standing Order does not render the case moot because there is no guarantee that the City will not revert to its old bail policy.  The court further stated that plaintiff’s release does not obviate the fact that the plaintiff suffered injury when he was detained.  The court held that any difficulties that the City or Municipal Court will suffer are outweighed by the constitutional rights at issue.  Finally the court held that the City is a proper plaintiff and a habeas action is not necessary.  The court ordered that until the City implements lawful post-arrest procedures, the City must release all misdemeanor arrestees on their own recognizance or on an unsecured bond.

In People v. Rivera, Case No. B257776 (Cal.App. February 2, 2016), the Court of Appeals affirmed the trial court’s denial of the surety’s motion to extend the time in which forfeiture could be set aside pursuant to Penal Code § 1305.4.  Under § 1305.4, the surety must demonstrate that it diligently attempted to capture and locate the defendant and that there is a reasonable likelihood to secure the attendance of the accused.  On August 23, 2013, the surety posted a $550,000 bond for the defendant in his case for drug distribution, sales and possession while armed with a firearm.  On October 28, 2013, the defendant failed to appear in court, and the court ordered the bond forfeited.  The surety timely moved under section 1305.4 to extend the 180-day appearance period.  The surety presented the trial court details of its extensive but unsuccessful efforts to locate the defendant from November 2013 to April 2013.  The trial court concluded that there was no due diligence to locate and capture the defendant in the initial 180 day appearance period and that there was no reasonable likelihood of capture.  The trial court entered summary judgement denying the extension of time and ordering the bail forfeiture.  The Court of Appeals affirmed the trial court’s decision, but concluded that the surety’s investigator was diligent in trying to locate the defendant.  However, it found there was no evidence “that the investigator was any closer to locating the defendant than when he began the search in November 2013.” [Not Published]

In Danny Blankenship Bonding Co. v. State, Case No. W2015-00614-CCA-R3-CD (Tenn. Crim. App. February 3, 2016), the Tennessee Court of Criminal Appeals affirmed the forfeiture of a $3,000 bail bond.  On May 20, 2014, the defendant failed to appear at a proceeding in connection with multiple vehicular offenses.  On December 31, 2014, the trial court entered an order of final forfeiture.  On January 13, 2015, the defendant was surrendered to the county sheriff.  The surety requested that the trial court set aside the forfeiture, which the trial court denied.  (This denial was affirmed Circuit Court and the surety appealed to the Court of Criminal Appeals.)  The surety argued that section 40-11-139(c) of the Tennessee Code provides an additional 30 days after the final forfeiture is entered to surrender the defendant before forfeiture is executed.  The Court of Criminal Appeals disagreed and stated that subsection (c) does not provide an automatic 30-day extension.  Rather, as set forth in section 40-11-203, whether the surety is exonerated by the surrender of the defendant after forfeiture is fixed “is left to the sound discretion of the court.”  As to whether the lower court abused its discretion, the Court of Appeals stated that the surety did not provide the transcript from the Circuit Court’s hearing.  In light of the lack of information regarding the lower court’s reasoning, the Court of Criminal Appeals must presume that no abuse of discretion occurred.

 

In State v. Miller, Case No. 15-880 (La. Ct.App. February 3, 2016), the Louisiana Court of Appeals affirmed that the surety properly received notice of the Judgment of Bond Forfeiture in accordance with statute, and affirmed the forfeiture of a $5,000 bail bond.  The clerk of the court mailed the Judgment of Bond Forfeiture to the surety at the address listed on the power of attorney, as required by statute (La. Code Crim.P. arts. 349.3 and 322).  The return receipt reflected that the Judgment of Bond Forfeiture was received by the surety at the address listed on the power of attorney.  The surety filed a Motion to Be Relieved of Bond Obligation, asserting that the clerk mailed the Judgment of Bond Forfeiture to the wrong address.  The clerk should have mailed the notice to the handwritten address on the bond.  The printed address on the bond had been “whited out.”  Pursuant to article 349.3, the notice is to be mailed to the surety at the address designated in article 322.  Article 322 requires the surety to inscribe its proper mailing address on the power of attorney, and it is presumed to be the correct address “until the party providing the address changes it by filing a written declaration in the proceeding for which the bond was filed.”  The surety argued that the handwritten address on the bond constituted a filing of a “written declaration.”  The trial court held that the correction of the address on the bond did not constitute a “written declaration” and therefore the address on the power of attorney is presumed to be the correct one.  The Court of Appeals agreed.  It held that, given the mandatory nature of articles 322 and 349.3, the use of whiteout and a handwritten address change on the bond form do not overcome the presumption that the address on the power of attorney is the correct address.