Cities Dodge Class Actions Over Jail Phone Rates

OAKLAND, Calif. (CN) – A federal judge on Thursday tossed four related class actions accusing several Bay Area counties of allowing telecoms to overcharge jail inmates and their families for phone calls in exchange for a hefty chunk of the profits.

U.S. District Judge Yvonne Gonzalez Rogers granted in part a consolidated motion by Alameda, Contra Costa, San Mateo and Santa Clara counties to dismiss the nearly identical suits against them. She said she will allow the plaintiffs to amend only their First Amendment claim “out of an abundance of caution."

"That the commissions charged may result in higher phone rates, which, in turn, may reduce the frequency and length of phone calls made, does not constitute a governmental restriction on plaintiffs' constitutional rights," Gonzalez Rogers wrote in a 26-page order.

In the August 2016 suits, inmates and their families accused the counties of forcing them to pay excessive fees to make and receive phone calls, in violation of the U.S. Constitution and the Sherman Antitrust Act.

The plaintiffs claim the counties struck deals with Global Tel Link Corp. and Securus Technologies, granting them exclusive rights to run phone systems in the jails. Inmates or their families must set up prepaid accounts with the telecoms, which charge "exorbitant" rates, they claim. In exchange, the telecoms must pay "grossly excessive" commissions to the counties for the services.

Contra Costa County gets $4.2 million in commissions annually; Santa Clara County, $1.7 million; Alameda County, $1.5 million or roughly 71 percent of receipts, whichever is higher; and San Mateo County, $795,000, according to the complaints.

Siding with each of the counties, Gonzalez Rogers ruled Thursday that the plaintiffs had failed to state both their antitrust claim and their claims under the Constitution's First, Fifth, and Fourteenth Amendments.

The plaintiffs had argued the Ninth Circuit has recognized a First Amendment right to telephone access, and that the commissions amount to unconstitutional taxes on that right.

But Gonzalez Rogers was not persuaded, concluding "the Ninth Circuit has not recognized an independent right to telephone access for inmates." Instead, the appeals court defined the constitutional right as the "'right to communicate with persons outside prison walls'" using a telephone, the judge wrote, quoting from 2002's Valdez v. Rosenbaum.

Importantly, Gonzalez Rogers made the distinction that in Valdez, the plaintiff's "deprivation of access to telephone calls was essentially absolute," while "no such deprivation of communication has been alleged" by the plaintiffs in the present class actions.

"Plaintiffs have not alleged the imposition of any regulations or restrictions that prevent them from using the telephone for communications, nor have they alleged that the rates are 'so exorbitant as to deprive [inmates] of access altogether,'" she wrote, quoting from Johnson v. California, a case the Ninth Circuit decided in 2000.

Frank Busch, an attorney with Kerr & Wagstaffe in San Francisco representing San Mateo County, said Thursday he was pleased with Gonzalez Rogers' decision.

"When you get right down to it, every single inmate at all times had the right to use a telephone, have visits, and otherwise communicate with the outside world," he said in an interview, adding he is skeptical that the plaintiffs can cure their First Amendment claim.

Turning to the plaintiff's Sherman Act claim, Gonzalez Rogers found charging high commissions is allowed under the state action doctrine, which bars antitrust claims against state actors.

The judge found that California law gives counties the authority to strike monopolistic deals with telecoms that provide for high commissions and which can in turn raise phone rates.

"Rather than place limits on the collection of those commissions, the Legislature instead simply directed that the use of such commissions be earmarked for the inmate welfare fund," she noted.

"I think every county defendant complied with those rules and therefore was acting exactly as the Legislature intended," Busch said.

The plaintiffs are represented by Barrett Litt with Kaye, McLane, Bednarski & Litt in Pasadena, who did not return a request seeking comment Thursday.

Alameda County is represented by Gregory Thomas with Boornazian Jensen & Garthe in Oakland; Contra Costa County by its county counsel D. Cameron Baker in Martinez; and Santa Clara County by Mark Conrad with Conrad & Metlitzky in San Francisco.

They could not be reached for comment Thursday.

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