Van Atta v. Scott

¶1I dissent.

¶2The majority opinion reflects a fundamental misunderstanding of the judiciary’s role in our tripartite system of government. While purportedly examining a trial court record for error, the majority’s real search is for a platform from which to express policy views in concluding there exists a denial of due process based on evidence of its own manufacture and on trial court findings lending no support for that conclusion. From that platform the majority announce they will not abide by express constitutional and legislative policy as, apparently, they are better qualified to make those determinations.

¶3The majority defensively assert their holding does not create a right to own recognizance (OR) release in contravention of article I, section 12 of the California Constitution.1(Ante, p. 452.) That section provides that a person “shall be released” on bail by sufficient sureties, and “may be released” on his or her OR in the court’s discretion. The Constitution thus denies a “right” to OR release, although allowing discretionary consideration of an application for OR release. However, by imposing upon the prosecution the burden of proving facts warranting denial of a detainee’s application for OR release,2 the majority create a presumption that a detainee is now entitled to OR release. The significant right thus created is contrary to the express constitutional presumption in favor of bail and against OR release. The judiciary is not empowered to make rules contrary to the express mandate of the People.3

¶4In opposing the majority’s doctrine of government by judiciary, the following matters are presented: (1) the absence of a justiciable controversy; (2) the inadequacy of a record to support the majority holding *455and rules; (3) the existing release system’s compliance with due process requirements; (4) the absence of judicial authority to enact the majority rules.

¶5I. Lack of a Justiciable Controversy

¶6According to Blair v. Pitchess (1971) 5 Cal.3d 258 [96 Cal.Rptr. 42, 486 P.2d 1242], a true case or controversy may exist when a taxpayer brings suit pursuant to Code of Civil Procedure section 526a by alleging illegal government activity.4(Id., at p. 269.) No true case or controversy exists in the instant proceeding because no adversity exists between the parties despite the broad allowances of Blair.

¶7After suit was brought defendant Donald Scott, as Chief of Police of the City and County of San Francisco, was relieved of all responsibility for pretrial detainees. He was thus eliminated as a legally interested party and the only remaining legally interested defendant—Sheriff Richard Hongisto—curiously stipulated prior to trial that the challenged system is unconstitutional. Instead of defending his office, defendant Hongisto presented evidence intended to assist plaintiffs’ case. There was in fact no legally interested defendant committed to establishing the propriety of the present release procedures. This is dramatically illustrated by the majority’s reliance at six different places (ante, pp. 435 (fn. 9), 436 (fn. 11), 437, 442, 443, and 444) on an article authored by no one other than defendant Hongisto (Workable Alternatives to the Present Bail System (1972) 47 State Bar J. 576) in support of various of their assertions.

¶8When the only legally interested defendant is also an advocate for plaintiffs’ position, there is no truly adversary proceeding and the proceeding becomes a sham.5 There was simply no controversy between Sheriff Hongisto and plaintiffs. Therefore, the case is not justiciable. Under these circumstances great danger exists the trial court will be misled “by the failure of the parties to adequately explore and argue the issues.” (Blair v. Pitchess, supra,5 Cal.3d 258, 270.)

¶9*456II. The Record and Findings of Fact Do Not Support Majority Conclusions

¶10It is indisputable and the record establishes that persons who are arrested and detained prior to trial incur an impairment in preparing for trial. However, reform of detention facilities is not the subject of this action and the record does not reveal that detainees are being deprived of due process. The majority’s due process argument that the prosecution must bear its newly created burden of proving that arrestees should not be released on OR evidences a misunderstanding of what constitutes deprivation of procedural due process.

¶11In support of their holding that individual liberty interests are compromised by existing procedures, the majority state that “[approximately one-half of all detainees in San Francisco are unable to post bail and are not released on their own recognizance. As a direct result, they remain in jail until their cases are resolved.” {Ante, p. 433.) The majority refer to no testimony, relying only on plaintiffs’ brief setting forth a statistical argument riddled with deficiencies.6 Without worthy supporting evidence the majority state that half the arrestees are confined for indigency. Heavy reliance is placed on the testimony of bail bondsman A1 Graff who testified that “the people who are being released are the affluent. The poor are staying in jail.” Again, curiously, Mr. Graff was not qualified as an expert witness on any issue. He cer*457tainly is not an expert on questions of affluency versus indigency. Nor do the trial court findings support the majority conclusion.7 In fact, the trial court expressly disagrees with the majority, stating in its memorandum opinion: “The fact that an arrestee must remain in jail pending release is not due to his indigency. It is due to the fact that at the bail hearing the judge has determined, in the exercise of his broad discretion, that a particular accused should not be released on his own recognizance, but that in order to secure his appearance in court, more stringent safeguards are required—namely money bail or incarceration.”

¶12Not only is the record devoid of statistical or objective facts concerning San Francisco pretrial detentions, it also lacks evidence that any detainee who might have been released OR as proposed by the majority *458has in fact been prejudiced by reason of detention. Nor is there support for the majority conclusion that placing the burden of proof of appearing at trial on the arrestee, “is to create among trial courts a ‘...Pavlovian response of money bail [and hence a denial of OR release] to every uncertainty concerning the defendant.’” (Ante, pp. 438-439).

¶13Nowhere in the record is there evidence of specific abuse of discretion by salivating judges in denying OR release. The facts on which the majority rely are gleaned from meager testimony consisting in the most part of overgeneralized and imprecise opinion evidence of nonexpert witnesses8 and from unacknowledged law review notes which present 17-year-old statistical evidence obtained from the Manhattan Bail Project.9 The majority’s reliance on facts presented as worthy of judicial notice instead of record facts relevant to the San Francisco pretrial detention system constitutes an egregious abuse of the doctrine of judicial notice in quest of a desired result.

¶14The absence of reliable and objective record facts on which the majority can properly rely is particularly significant because it confirms the thesis that there has been no bona fide adversary trial or justiciable controversy. In their fervor to make policy decisions the majority lack the information, skill and sophistication only a legislative body possesses. (See, post, part IV.) Defendant Hongisto’s advocacy of plaintiffs’ position and the absence of substantial evidence in defense of the constitutionally mandated pretrial detention system rendered the trial lacking in all traditional hallmarks of the adjudicative process. Trial of this case was not conducted as a bona fide adversary proceeding, and the case is now presented to this court in the form of a one-sided legislative hearing instead of a justiciable controversy. Naivete cannot explain the majority’s enthusiasm in embracing the trial court’s policy proclamations.

¶15*459III. Existing Procedures Meet Due Process Requirements

¶16Assuming arguendo the validity of the majority’s assumption that one-half of all arrestees are detained until trial, such detainment does not constitute deprivation of those detainees’ due process rights. Upon arrest on probable cause, the criminal justice system is set into motion and the arrestee is subjected to constitutionally permissible deprivations of numerous individual liberties subject, however, to release on bail and an expeditious trial, among other things. To state as do the majority that “[a]n individual’s interest in his freedom has always been held sacrosanct” {ante, p. 439) as a general maxim justifying a presumptive right to OR release for all arrestees, is to ignore the existence of due process safeguards inherent in the requirement that there be probable cause warranting deprivation of liberty pending process of the state’s complaint.

¶17In People v. Ramirez (1979) 25 Cal.3d 260 [158 Cal.Rptr. 316, 599 P.2d 622], relied upon by the majority, this court set forth guidelines for weighing private and governmental interests to evaluate whether procedures employed by the state safeguarded requisite procedural due process interests: “[Identification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” {Id., at p. 269.)

¶18An application of the dictates of Ramirezto the record facts in the instant case compels a conclusion—contrary to the majority holding—that an individual’s liberty interest must be subordinated to the government’s interest in assuring an arrestee’s presence at trial.

¶19As to the first guideline set forth in Ramirez, trial court findings are absolutely barren of reliable evidence in support of the majority’s bold assertion that a detainee’s liberty interest will be adversely affected by a system of discretionary OR release as an alternative to bail. As ex*460plained, the majority rely on imprecise opinion testimony and judicial notice of information and argument published in law review articles. The trial court did not find as a fact and plaintiffs completely failed to show that any detainee who might have been a good OR risk has been denied OR release under current San Francisco practices. Without such a showing of actual injury no due process denials could have occurred.

¶20As to the second guideline, no evidence has been presented indicating risk of an “erroneous deprivation” of an individual’s liberty interest through existing procedures. There are, moreover, numerous “additional or substitute procedural safeguards” to insure that a detainee will not be deprived of liberty without due process of law. Arrestees are entitled to a preliminary hearing (Pen. Code, § 859 et seq.) where they are represented by privately retained counsel or a public defender in exercising their right to challenge the existence of probable cause to sustain charges against them. If an arrestee still remains in custody, and does so because he cannot or will not meet the scheduled bail, he is entitled to move for a reduction in bail (Pen. Code, § 1269c), release on own recognizance ()?en. Code, § 1318), or release through pretrial diversion (Pen. Code, § 1001 et seq.). If an arrestee still remains in custody, he has a right to automatic judicial review of the order fixing his bail within five days from the time the order is given (Pen. Code, § 1320). Finally, any decision resulting in an arrestee’s continued detention, such as fixing of bail, denial of OR release and the actual arrest may be challenged by the traditional routes such as habeas corpus or mandamus. Ramirezcharacterizes the nature of due process in stating “it must be remembered that ‘due process is flexible and calls for such procedural protections as the particular situation demands.’” (People v. Ramirez, supra,25 Cal.3d 260, 268.) It is clear that existing procedural due process safeguards are completely adequate.

¶21Ramirez's third guideline requires that a person’s “dignitary interest” be safeguarded by being informed of the nature, grounds, and consequences of the action against him, and by enabling him to present his side of the story before a responsible government official. There are no findings or evidence indicating that arrestees have not been fully informed of the nature, grounds and consequences of charges and proceedings against them, or that arrestees were unable to present their side of the story to responsible government officials. It is clear that existing procedural due process safeguards more than adequately insure compliance with the third guideline set forth in Ramirez.

¶22*461Finally, Ramirez’s fourth guideline requires the governmental interest in OR release be balanced against the arrestee’s liberty interests. It must be obvious that the majority’s creation of a right to OR release will have a profound and negative effect on the government’s substantial and compelling interest in securing the arrestee’s presence at future criminal proceedings. In fact, the trial court stated in its memorandum of decision that there is a “compelling state interest in securing the appearance of an accused at court proceedings.” (Italics added.)

¶23If the burden is shifted to the state to prove why OR release should be denied, common sense and past experience10 indicate that the increased failure to appear at trial will have serious negative effects on the governmental interest. Any delay in expeditious prosecution of criminal defendants will adversely affect prosecutorial efforts. When defendants fail to appear for any court proceeding, as will be the case when OR release is made a right, further prosecutions of their cases cease until they are again arrested and brought to court. When a defendant fails to appear at trial, witnesses disappear and their memories fade. Police and district attorney personnel who had originally processed the case may not be available. Witnesses may be subject to intimidation. Evidence may be lost or destroyed. If one defendant fails to appear, the case will progress as to the remaining defendants, resulting in a de facto severance contrary to the policy established in Penal Code section 1098, all of which increases costs to the state and to the taxpayer in prosecuting those charged with crimes.

¶24Moreover, failure to secure appearance of the accused at future court-ordered appearances entails indirect burdens on the government by harming society. A defendant who is a fugitive may commit additional crimes. If the defendant is in need of treatment relative to the use of drugs or alcohol, or of psychiatric rehabilitation, such assistance is delayed. The deterrent effect of punishment is diminished after a long delay. Public funds must be spent to relocate and rearrest a fugitive, sometimes requiring the expense of extradition. In cases such as murder, rape, or child molestation, a delay prolongs the mental anguish of the surviving victims and witnesses. If the failure to appear occurs on jury trial day, there is a waste of public funds used to pay for the expenses and fees of jurors, victims, and witnesses who have been *462summoned for trial, not to mention the cost of providing for a trial court that may go unused.

¶25Finally, any delay in expeditious prosecution of criminal defendants operates in the fugitive defendant’s favor. Moreover, a cunning fugitive in our mobile society may avoid apprehension altogether.

¶26The majority’s conclusion that procedural safeguards in the existing pretrial detention system in San Francisco deprives detainees of fundamental liberty and due process of law is contrary to the very Ramirezguidelines on which the majority purport to rely for balancing governmental against individual interests. In view of existing pretrial due process procedures, the majority’s failure to substantiate their claim that arbitrary pretrial adjudicative procedures exist in San Francisco with record evidence and the fact that a “compelling” and “substantial” state interest exists in securing the presence of an arrestee at future proceedings against him wholly vitiate the majority’s conclusion that existing procedural safeguards are unconstitutional.11

¶27IV. The Majority Engage in Judicial Legislation

¶28A central issue in this case is whether this court has authority to modify constitutionally mandated pretrial release procedures, especially in view of existing procedural due process guarantees. (See, ante, part III.) Authority for court modification is not found in Proposition 7. That proposition provides an “absolute right” to bail (In re Newbern (1961) 55 Cal.2d 500, 503 [11 Cal.Rptr. 547, 360 P.2d 47]) whereas OR release, which the majority now create as a right, is only “an alternative to bail in appropriate cases.” (In re Smiley (1967) 66 Cal.2d 606, 613 [58 Cal.Rptr. 579, 427 P.2d 179].) OR release is not a matter of right but a matter of court discretion depending on whether good cause is shown for release. While this court has a general power to interpret constitutional provisions consistent with due process requirements, it has no authority to provide new meanings to define the *463express language of the Constitution (Ross v. City of Long Beach (1944) 24 Cal.2d 258 [148 P.2d 649]), or to revise a system expressly established by a constitutional command of equal dignity to due process mandates. If, as the majority argue, a conflict exists between due process requirements and Proposition 7’s explicit establishment of bail as a matter of right and discretionary OR release, this court is required to adhere to the specific constitutional provision insofar as the two are capable of being constitutionally harmonized.

¶29Proposition 7’s explicit creation of bail as a right and OR release as a discretionary alternative constitute an establishment of standards and procedures which under our tripartite system of representative government are to be implemented not by this court but by the Legislature. (See People v. Municipal Court (Runyan) (1978) 20 Cal.3d 523 [143 Cal.Rptr. 609, 574 P.2d 425].) This court lacks “quasi-legislative rule-making power.” (Reynolds v. Superior Court (1974) 12 Cal.3d 834, 948 [117 Cal.Rptr. 437, 528 P.2d 45].) Moreover, when rules and procedures enacted by the Legislature are consistent with the constitutional mandate they cannot be qualified by this court. (People v. Municipal Court (Runyan), supra, 20 Cal.3d 523.)

¶30The initiative to modify OR release procedures adopted by the majority in this case not only offends Proposition 7, but usurps legislative prerogative—even assuming arguendo such initiative is constitutionally permissible. In fact, the Legislature has not been remiss in addressing this serious issue. Assemblyman Berman introduced Assembly Bill No. 2 in December 1978 (approved Sept. 1979, eff. Jan. 1981), substantially reforming release procedures. (Stats. 1979, ch. 873 (No. 8 West’s Cal. Legis.Service, p. 3363; No. 5 Deering’s Adv.Legis.Service p. 626).) The Berman bill significantly reforms pretrial detention by providing in section 1270 that persons arrested for misdemeanors are entitled to OR release as a matter of right, “[U]nless the court makes a finding upon the record that an own recognizance release will not reasonably assure the appearance of the defendant as required.” It further provides in section 1269d that a person arrested for a misdemeanor who is not entitled to OR release need post only 10 percent of the fixed bail to obtain release.12 Although the Legislature has not created new rules pertaining to felony arrestees this fact does not vest in this court a right to usurp the Legislature’s rule-making function by legislating under the guise of *464judging. The Berman bill is a significant reminder that the proper branch of government to initiate appropriate reforms within constitutional limits is the Legislature and not this court.13

¶31The majority’s conclusions are clearly erroneous. But the majority’s most serious error is in abandoning the court’s traditional role of appellate review by improperly creating political policy. We again usurp the jurisdiction of the Legislature and other rule-making agencies of this state.

¶32The judgment should be reversed and the trial court directed to dismiss the action.

¶33Richardson, J., and Manuel, J., concurred.

¶34The petition of appellant Scott for a rehearing was denied August 14, 1980, and the opinion was modified to read as printed above. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.