THE PEOPLE, Plaintiff and Respondent, v. TODD RUSSELL DOLEZAL, Defendant and Appellant.
No. B245316
Second Dist., Div. Six.
Nov. 5, 2013.
221 Cal. App. 4th 167
Counsel
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
YEGAN, J.—A bail bondsman seeks refuge under the First Amendment umbrella. Is he a champion of commercial constitutional speech rights just trying to make a living by directly soliciting bail bond business at a county jail or has he committed a crime? A bail bondsman has a right to make a living but the bonding rules require compliance with the Insurance Code and the regulations promulgated by the Insurance Commissioner. We have balanced the competing rights. We conclude that the narrowly tailored restriction on commercial speech prohibiting the direct solicitation of bail at a jail passes constitutional muster,
Todd Russell Dolezal appeals his conviction by the trial court on stipulated facts, of one count of unlawful contact for bail solicitation in violation of
Appellant contends the conviction must be reversed because the administrative regulation that criminalizes solicitation of bail violates the First Amendment to the United States Constitution. The regulation was adopted by the Department of Insurance in 1977. This is the first time its constitutionality has been considered. We conclude the regulation is narrowly tailored and serves the state‘s substantial interests in protecting the orderly administration of jail facilities and in protecting arrestees from harassment, intimidation, fraud or other forms of overreaching common in direct solicitation of bail.
Facts and Procedural History
Appellant is a licensed bail agent who does business in San Luis Obispo County as San Luis Bail Bonds. Larissa Langley is employed by appellant and is also a licensed bail agent.
In the early morning hours of April 10, 2009, Kathryn Schildwachter was arrested for corporal injury to her husband (
Meanwhile, Schildwachter‘s husband arranged for her bail with Smitty‘s Bail Bonds. He had previously used Smitty‘s Bail Bonds and did not consider contacting any other bail agent. Before going to work, Mr. Schildwachter went to the office of Smitty‘s Bail Bonds and paid for his wife‘s bail.
About 9:00 a.m., jail staff took Mrs. Schildwachter to the secured visiting area and told her a bail agent was there to see her. Mrs. Schildwachter believed her husband had sent the bail agent to get her out of jail. The bail agent, however, was Larissa Langley, not the agent from Smitty‘s who had already been paid by Mr. Schildwachter. Langley and Schildwachter agreed on terms and Langley left the visiting area to arrange Schildwachter‘s bail.
Before meeting with Schildwachter, Hendrix spoke with Larissa Langley in the jail‘s reception area. He told Langley that he was bailing Mrs. Schildwachter. Langley handed Hendrix the bail information she received from jail personnel and left the premises. Hendrix then completed the process of bailing Mrs. Schildwachter.
Appellant and Langely were charged with soliciting bail in violation of
Appellant demurred to the felony complaint, contending
Mr. Gulcher further explained that bail agents are allowed to advertise in most jail facilities. “Oftentimes [arrestees] have access to phone books where bail agents can advertise. [Arrestees are] allowed to make phone[ calls] to friends and family members. And they can call their family or attorney to arrange for bail for them and in an environment that is a little more conducive to clear thinking.”
These observations were based, Mr. Gulcher testified, on discussions he had with other employees of the Department of Insurance, including its legal department, similar prosecutions filed in other counties and complaints by the public. He was not aware of any reports or studies concerning statewide problems in the bail industry.
The trial court overruled the demurrer. The parties then agreed to a court trial on stipulated facts. All charges against Langley were dismissed. The trial court found appellant guilty of a felony violation of
The California Bail Regulation Is Constitutional
Speech that proposes a commercial transaction is entitled to the protection of the First Amendment if it concerns a lawful activity and is not misleading. (Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980) 447 U.S. 557, 563-564 [65 L.Ed.2d 341, 100 S.Ct. 2343].) Assuming that threshold is met, the government “must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State‘s goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government‘s purpose. Second, if the governmental interest
The state is not required, pursuant to this intermediate level of constitutional scrutiny, to demonstrate that its regulations adopt the least restrictive means available to serve its substantial interests. (Florida Bar v. Went For It, Inc., supra, 515 U.S. at p. 632.) Instead, the First Amendment “‘requires a “fit” between the legislature‘s ends and the means chosen to accomplish those ends,’ [citation]—a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is ‘in proportion to the interest served,’ [citation]; that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective.” (Board of Trustees of the State University of New York et al. S.V.N.Y. v. Fox et al. (1989) 492 U.S. 469, 480 [106 L.Ed.2d 388, 109 S.Ct. 3028].)
The regulation at issue here prohibits a bail agent from directly soliciting an arrestee without a prior request from the arrestee. The bail agent may still solicit the arrestee‘s attorney, family members or friends and may also advertise his or her services in every form of media. Jails routinely provide arrestees with access to telephones and telephone books, which contain many bail agent advertisements.
Appellant contends as follows: The regulations unreasonably interfere with bail agents’ First Amendment right to provide potential clients with information about their services. The regulations also unreasonably interfere with
Respondent contends the regulation against direct solicitation of bail advances three substantial state interests. First, it protects recent arrestees against harassment, intimidation, overreaching, annoyance or invasions of privacy by bail agents clamoring for their business. Second, it protects orderly and efficient jail administration by prohibiting bail agents from “jail rushing,” e.g., congregating in jail intake and visiting areas to troll for business after a desirable arrestee has been detained. Finally, bail agents are licensed professionals who are an integral part of the criminal justice system. Without them, most arrestees could not exercise their right to bail. The state has an interest in regulating their work to make sure that they operate in a fair, honest and professional manner.
According to respondent,
Each of the interests identified by respondent has been recognized as substantial in the context of First Amendment challenges to the regulation of commercial speech. In Edenfield v. Fane (1993) 507 U.S. 761 [123 L.Ed.2d 543, 113 S.Ct. 1792], the court recognized that Florida had a substantial interest in protecting potential consumers from fraud, overreaching, intimidation, annoyance, harassment or invasions of privacy during direct personal solicitation. (Id. at pp. 768-769; see Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, 462 [56 L.Ed.2d 444, 98 S.Ct. 1912] [“the State has a legitimate and indeed ‘compelling’ interest in preventing those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of ‘vexatious conduct‘“].) Edenfield also acknowledged “the State‘s important interests in maintaining standards of ethical conduct in the licensed professions.” (Edenfield, at p. 770; see Florida Bar v. Went For It, Inc., supra, 515 U.S. at p. 625 [state has compelling interest in licensing and regulating the practice of professions].) Finally, the state has a substantial interest in protecting the orderly administration of justice. (Florida Bar v. Went For It, Inc., supra, 515 U.S. at p. 624.)
In Ohralik v. Ohio State Bar Assn., supra, 436 U.S. 447, the Supreme Court upheld, against a First Amendment challenge, a state bar disciplinary
The court reached the opposite conclusion in Edenfield v. Fane, supra, 507 U.S. 761, where it held Florida‘s ban on in-person solicitation by certified public accountants (CPAs) “inconsistent with the free speech guarantees of the First and Fourteenth Amendments.” (Id. at p. 763.) Edenfield noted several distinctions between in-person solicitation by CPAs and by lawyers. CPAs are not trained in persuasion, like lawyers. Their clients tend to be sophisticated business people whose decision to retain a CPA is generally not made under stress or during an emergency. Potential CPA clients ordinarily have time to check references and deliberate before choosing whether to retain a CPA. (Id. at pp. 774-775.) Because there was a much lower risk that in-person solicitation by a CPA would involve overreaching, fraud or invasions of the potential client‘s privacy, the court held the ban on in-person solicitation by CPAs could not be justified as a prophylactic rule. (Id. at p. 777.)
We believe that arrestees who have recently been taken into custody are more like the accident victims at issue in Ohralik, than the sophisticated business people described in Edenfield. Most people find being in jail to be a very stressful situation. For many arrestees, a bail agent is the only person who can secure their release. But an arrestee may also lack information about his or her court schedule or custody status and may not be able to fairly
By prohibiting unsolicited contact between an arrestee and a bail agent,
In addition,
The regulation is sufficiently narrowly tailored to advance these state interests. There is no requirement that respondent adopt the least restrictive means available to advance its interests. It is sufficient if the regulation is reasonably narrowly tailored to achieve the desired objective. (Florida Bar v. Went For It, Inc., supra, 515 U.S. at p. 632.) Here,
Pruett v. Harris County Bail Bond Bd. (5th Cir. 2007) 499 F.3d 403 is not to the contrary. There, the Fifth Circuit considered a Texas statute that
With regard to the nighttime ban, the Fifth Circuit concluded it “directly and substantially furthers privacy and the prevention of harassing solicitation, and is narrowly tailored to furthering that goal.” (Pruett v. Harris County Bail Bond Bd., supra, 499 F.3d at pp. 415-416.) The 24-hour waiting period, however, did not directly advance the state‘s interest in privacy protection. (Id. at p. 414.) Although citizen complaints regarding harassing conduct by bail agents declined after the rule went into effect, the county could not “connect the reduction in citizen complaints to the 24-hour rule, as opposed to . . . the nighttime solicitation ban . . . .” (Id. at pp. 414-415.)4
Pruett does not control the result here because the Texas rule differs materially from
Appellant complains the evidentiary record here does not contain facts supporting respondent‘s asserted justifications for the regulation. There is no evidence, appellant contends, that bail agents will engage in the disruptive or unethical conduct described by respondent without the coercive force of
Direct solicitation of an arrestee by a bail agent poses the same “dangers of undue influence and overreaching that exist when a lawyer chases an ambulance . . . .” (Tennessee Secondary School Athletic Assn. v. Brentwood Academy (2007) 551 U.S. 291, 298 [168 L.Ed.2d 166, 127 S.Ct. 2489].) No “empirical data” is required to credit respondent‘s “commonsense conclusion” that hard sell tactics directed at arrestees by bail agents could result in invasions of privacy, intimidation, and other forms of overreaching, and could also encourage conduct by bail agents that interferes with the orderly administration of jails and other detention facilities. (Id. at p. 300.)
As appellant points out, respondent introduced no evidence in the trial court of disruptive or unethical conduct by specific bail agents in California. Respondent‘s contention that direct solicitation will lead to such conduct is, however, bolstered by a recent opinion in which the Ohio Court of Appeals described the “coercive and disruptive nature of [bail] solicitation in courthouses and detention facilities” in Ohio before that state banned direct bail solicitation. (In re Henneke (Ohio Ct.App. 2012) 2012-Ohio-996, ¶ 24.) A municipal court judge testified that bail bondsmen disrupted arraignments and other proceedings because they refused to stop soliciting while court was in session. (Id. at ¶ 25.) An investigator from the Ohio Department of Insurance testified that “he observed ‘rowdiness [and] fighting’ in court hallways, which interfered with court business.” (Id. at ¶ 26.) A bondsman testified people waiting for their arraignments were solicited multiple times by bondsmen and that physical altercations occasionally broke out between competing bondsmen and between bondsmen and potential clients. (Ibid.) In addition, “competition amongst bondsmen on court grounds added to citizens’ anxiety and vulnerability. For example, [one bondsman] once witnessed a citizen crying after being approached by several bondsmen who were offering competing bids. Thus, the statute provides an important buffer between citizens and bail agents by allowing individuals to exit the courtroom, collect themselves, and depart courthouse or detention center grounds before engaging the services of a bail bondsman.” (Id. at ¶ 27.)
Ohio bail bondsmen are not uniquely competitive or boisterous. Common sense tells us that the same disruptive, intimidating and intrusive conduct would eventually occur in California, were direct solicitation permitted.
Conclusion
The judgment is affirmed.
Gilbert, P. J., and Perren, J., concurred.
Appellant‘s petition for review by the Supreme Court was denied January 15, 2014, S215049.