By Maria Dinzeo

OAKLAND – 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.

“The government’s position is they are putting in a new system because they are not supportive of the law as it stands,” the judge said. “But they can’t do it today because they need time to create the structure for changing it. The legislative, executive and the judicial branches, the entire state government, has a position which is diametrically opposed to what the CBAA is advocating for and the only reason to allow you to intervene was to defend the law in the shoes of the government. I just don’t understand how I can permit you to continue to defend something in the shoes of someone who says we’re repealing this. It doesn’t make logical sense to me.”

Dhillon replied: “The current law is still in effect, and will possibly be in effect for two years and will possibly be in effect forever.”

Further complicating matters is the question of what relief the class could receive should Gonzalez Rogers find the bail system unconstitutional. Huseny said he worried that even if the judge rules in favor of the plaintiffs, the sheriff could put another framework in place that yields the same unfair results, like requiring a fee for pretrial diversion.

Huseny said his side had been trying to work with attorneys for San Francisco County Sheriff Vicki Hennessy, but their efforts had not been reciprocated. Jeremy Goldman with the San Francisco City Attorney’s Office said they had already filed a plan with the court.

“We don’t know what the plaintiffs want,” he said.

The judge advised the parties not to get ahead of themselves.

“What I think would be best is not to get into relief issues. Let’s take this a step at a time,” Gonzalez Rogers said. “And you can’t have relief until I rule it as unconstitutional.”

Gonzalez Rogers ordered Huseny to submit a renewed motion for summary judgment by Sept. 28. She gave Dillon until Oct. 19 to respond. The parties are due in court Dec. 12 for further argument.

In an interview outside the courtroom, Dhillon said she thought Gonzalez Rogers had done the right thing. “We think it was a prudent way to handle it. No one wants to waste the court’s time.”

Dhillon added the potential legal challenges to the SB 10 could delay its implementation indefinitely. It will probably take an amendment to the California Constitution for a change in the bail system to actually stick.

“There’s a lot going on here,” she said. “The fact that the Legislature passes a law does not make it constitutional. SB 10 is never going to become law, that’s my prediction.”

Despite Chief Justice Tani Cantil-Sakauye’s outspoken opposition to bail, even the California Supreme Court hasn’t ruled the issue settled with SB 10’s passage.

Earlier this year, court granted review in the case of Kenneth Humphrey, a San Francisco man whose $350,000 bail led to an appellate court order that judges consider a person’s ability to pay when setting bail.

In May, the state high court said it will consider whether the appellate court erred in determining that due process and equal protection require judges to consider a defendant’s ability to pay when setting bail, whether a judge must consider public and victim safety and under what circumstances a judge may deny bail in noncapital cases.

“The California Supreme Court still views there to be a live issue here,” Dhillon said.

Though the California Bail Reform Act was touted in the Legislature as the path to doing away with a system that penalizes the poor, many civil rights and victim advocacy groups have criticized it for various reasons.

Some claim a new system that relies on pretrial risk assessments will disproportionally keep people of color in jail based on biased algorithms. Others say victims’ needs are not being considered. Some have also argued bail is a civil right in itself.

Dhillon said the referendum to repeal SB 10 is “95 percent likely” to qualify for the November 2020 ballot.

“The Legislature might be pleased with itself, but the civil rights community has condemned this law,” Dhillon said.