OAKLAND, Calif. (CN) – Despite the recent passage of a law banning the money bail system in California, a federal judge will still have to decide whether bail is constitutional in a legal challenge of the practice.
A trial in a class action brought by low-income arrestees mounting a constitutional challenge to bail was set to start on Sept. 17, but at a Friday pretrial hearing U.S. District Judge Yvonne Gonzalez Rogers asked attorneys for both sides to submit renewed motions for summary judgment.
Gonzalez Rogers opened the hearing by declaring the case all but moot in light of Senate Bill 10, which Gov. Jerry Brown signed into law last week. The bill replaces California’s current money bail system with pretrial risk assessments and lets local courts decide who should be released while awaiting trial or sentencing – a framework that is supposed to be fairer for those who cannot afford to pay their way out of jail.
“My own view is that if the case isn’t moot, it’s pretty darn close to moot,” Gonzalez Rogers said.
By its conclusion, however, the lawyers had convinced her to take another look since the current bail schedules will be in effect for at least another year. The California Bail Reform Act doesn’t take effect until Oct. 1, 2019, and a referendum is already under way to repeal it.
“We agree that If SB 10 had been implemented as of the day of passage that the case would have been moot. Our concern is we have a certified class of pre-arraignment arrestees who are still subject to a bail schedule in San Francisco,” class attorney Sadik Huseny told Gonzalez Rogers. “In the next year, if the bail schedule is being used by the sheriff against our class, we do have a little bit of a live controversy for a year.”
Representing the California Bail Agents Association, attorney Harmeet Dhillon said she doesn’t believe the case is moot at all.
“There has been a class certified and that class has asserted deprivation of liberty. It is up to two years or more in San Francisco where these rights will be affected,” Dhillon said. She also noted that if the referendum gathers enough signatures to be put to a vote in November 2020, the new law’s effective date could be pushed back even further.
“If the referendum qualifies, SB 10 will not become law until December 2020 if it fails, or never, if it succeeds,” she said.
She added if Gonzalez Rogers rules the case moot, someone else could bring a new case in the interim, effectively wasting court resources on another lawsuit.
Gonzalez Rogers had her own problem with the case, noting the California Bail Agents Association may not even be an appropriate intervenor since it is defending the current bail system on behalf of the state of California even though all three branches of government oppose it.