GERALD N. VAN ATTA, JR., et al., Plaintiffs and Appellants, v. DONALD M. SCOTT, as Chief of Police, etc., et al., Defendants and Appellants.
S.F. No. 23946
Supreme Court of California
July 3, 1980
27 Cal. 3d 424
GERALD N. VAN ATTA, JR., et al., Plaintiffs and Appellants, v. DONALD M. SCOTT, as Chief of Police, etc., et al., Defendants and Appellants.
Morrison & Foerster, Girvan Peck, Kathleen V. Fisher, William Alsup, Dominic J. Campisi, McCutchen, Doyle, Brown & Enersen, John N. Hauser, Bruce G. Vanyo and Donn P. Pickett for Plaintiffs and Appellants.
Linus Masouredis, Feldman, Waldman & Kline, Mark N. Aaronson, Herbert M. Rosenthal, Margaret G. Wilkinson, Zona Sage and Sheldon Partman, Public Defender (Santa Clara), as Amici Curiae on behalf of Plaintiffs and Appellants.
George Agnost, City Attorney, and Philip S. Ward, Deputy City Attorney, for Defendants and Appellants.
OPINION
BIRD, C. J.—This court must decide the narrow issue as to whether the trial court was correct when it held that the pretrial release and detention system employed by the City and County of San Francisco violates the due process clauses of the state and federal Constitutions.
I
When an individual is arrested in San Francisco three methods of pretrial release are available: (1) citation (
Release by citation is limited by police regulations to misdemeanor offenses where the arrestee has no outstanding warrants and resides in, or within 30 miles of, San Francisco. According to those regulations, a citation should not be issued, even to one charged with a misdemeanor, if (1) the identity of the arrestee is not ascertainable; (2) the arrestee requires medical examination or care that would not be provided if he
Those arrested individuals, who are booked2 rather than cited (other than those detained for a parole or probation violation or those charged with a nonbailable offense), are allowed immediate release upon the posting of bail in the amount specified in the master bail schedule. (
Anyone who is not released on bail or citation must be arraigned without unnecessary delay and in any event within 48 hours of his arrest (not including Sundays and holidays). (
If an individual is not released on citation or does not post bail, he may seek release on his own recognizance. (
In seeking release on their own recognizance, detainees may be assisted by the OR project. According to the record, the OR project in San Francisco processes OR release applications in the following manner. Project staff members conduct interviews with those detainees they are able to contact in city prison. The prior record of the detainee is summarized in the project‘s report, and relevant information regarding the detainee‘s community ties is verified by the project whenever possible.3 The police report on the incident leading to the arrest is obtained by the project from police files and is attached to the application. A point system, which gives positive points to such facts as residence, family or employment in the Bay Area, is used to evaluate the detainee‘s likelihood of appearing for future court proceedings. The highest possible score is 12 positive points. Prior convictions contribute negative points, and persons with less than five points are automatically excluded from further consideration by the OR project. If an applicant scores five or more points, his case is presented to the court by staff members of the project.4
The trial court found that in San Francisco, when applications are presented to the court, the presumption is against OR release and the detainee bears the burden of showing that his application is meritorious. Further, such release is granted or denied as a matter of grace and is totally within the unfettered discretion of the trial judge. (
In a taxpayer action filed pursuant to
Following a seven-day trial, the court held that plaintiffs had standing to sue under section 526a of the
In People v. Ramirez (1979) 25 Cal.3d 260, 269 [158 Cal.Rptr. 316, 599 P.2d 622], this court held that the extent to which procedural due process relief is available under the California Constitution depends on a careful weighing of the private and governmental interests involved.6 The procedures that are constitutionally required are those that will, without unduly burdening the government, maximize the accuracy of the resulting decision and respect the dignity of the individual subjected to the decision-making process. (Id., at pp. 268-269.) More specifically, “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.”7 (Id., at p. 269.)
There are other important deprivations which follow pretrial incarceration. The detainee‘s ability to adequately prepare a defense is greatly curtailed9 and consultation with an attorney is severely impaired.10 The only place an attorney can speak with his client is in the jail
Imprisonment severely hinders the detainee‘s ability to gather evidence and interview witnesses. Consequently, the effectiveness of counsel‘s assistance and the detainee‘s right to a fair trial are generally impaired. (See Trends, supra, at p. 689; Cohen, supra, at pp. 1028-1029; Beyond the Bail System, supra, at pp. 1123-1124; Hongisto, supra, at p. 578.) Further, since incarceration generally means loss of income and often employment, the detainee‘s ability to retain an attorney of his own choosing may be limited. (See Thaler, supra, at p. 452.) If the detainee is unable to hire a private attorney, he must rely on the services of often overworked court-appointed counsel.
Finally, the fact that the detainee is frequently brought to the courtroom in jail clothing, in handcuffs or otherwise in obvious custody—as opposed to entering freely with counsel and perhaps his family—often engenders subtle prejudices in the judge and jury that necessarily interfere with the detainee‘s right to a fair trial. (See Trends, supra, at p. 690; Cohen, supra, at p. 1029; Goldfarb, Ransom (1965) p. 42 [hereafter Goldfarb]; Wald, Pretrial Detention and Ultimate Freedom: A Statistical Study (1964) 39 N.Y.U. L.Rev. 631, 632.)
Pretrial detention also has important consequences for the detainee outside the courtroom. It may imperil his job, interrupt his source of income, and impair his family relationships.11 However, the burdens associated with pretrial detention are by no means limited to the detainee and his family. The total costs of pretrial confinement constitute a drain on public funds as well. (Cf. Morrissey v. Brewer, supra, 408 U.S. at p. 477 [33 L.Ed.2d at p. 492]; see also People v. Vickers (1972) 8 Cal.3d 451, 458 [105 Cal.Rptr. 305, 503 P.2d 1313]; Lasker, Presumption Against Incarceration, supra, 7 Hofstra L.Rev. at p. 413; Committee on Crime, supra, at pp. 23-25; Hongisto, supra, at pp. 578-579.) The most obvious costs are those of providing the detain-
Beyond the monetary costs, pretrial detention spawns additional, more subtle social burdens. The testimony of Chief Deputy Sheriff Bangston, the person charged with the supervision of the San Francisco County jails, is instructive on this point: “The other reason, and I‘m not referring to a prisoner that‘s in and out, or whatever, but to a person that has been in once or twice, has had very few arrests, that type is susceptible to the influence, if you keep him in jail, and his character and moral standards go by. Such as, if you take a person with one juvenile arrest and then he reaches maturity and takes a fall, is arrested and ends up in jail, quite often the influence that he suffers in jail will turn him to an extent anti-social, and anti-establishment, and anti-so-called accepted system, he will try to buck it. I can‘t think of anyone coming to jail for the first time, in spite of their moral strength, that will not be influenced.” (Cf. Morrissey v. Brewer, supra, 408 U.S. at p. 484 [33 L.Ed.2d at p. 496]; see also, Thaler, supra, at p. 454; Lasker, Presumption Against Incarceration, supra, 7 Hofstra L.Rev. at p. 411; O‘Rourke & Carter, The Connecticut Bail Commission (1970) 79 Yale L.J. 513; Comment, Incarcerating the Innocent: Pretrial Detention in Our Nation‘s Jails, supra, 21 Buffalo L.Rev. at pp. 903-904.)
Balanced against these substantial interests favoring pretrial release are several competing interests. The government‘s interest in assuring the presence of the accused at all court proceedings is a compelling one. The government also has a substantial interest in seeing that it achieves its objective of assuring the accused‘s presence at future proceedings at a reasonable cost.
Plaintiffs urge that the procedures employed in San Francisco do not properly strike the balance between these governmental and nongovernmental interests. Plaintiffs contend, and the trial court held, that due process requires both the burden of producing evidence and the burden of proof to be borne by the prosecution at the OR hearing. These two rulings must be evaluated separately.
The burden of producing evidence is “the obligation of a party to introduce evidence sufficient to avoid a ruling against him on the issue.”
In the present case, the trial court found that the prosecution should bear the burden of producing evidence to establish the detainee‘s ties to the community. However, the detainee is clearly the best source for this information and for names of individuals who could verify such information. Moreover, the detainee has a substantial incentive to cooperate in providing this information. If the burden of producing this evidence were placed on the prosecution, that incentive would disappear. The government would then have to conduct its own independent investigation, a costly and time-consuming undertaking. Since the government would not be able to gather information concerning the detainee‘s community ties as expeditiously as could the detainee, a dilemma would result. Either the OR hearing would have to be delayed—causing the prolonged detention of individuals entitled to release—or the hearing would proceed with the prosecution unable to sustain its burden—forcing the court to rule in favor of the release of a greater number of individuals who might fail to appear. Such a situation would serve the interests of neither the detainee who merits pretrial release nor the government. Therefore, this court is persuaded that due process does not require the prosecution to bear the burden of producing evidence of the detainee‘s lack of community ties. The trial court erred when it held to the contrary.
Different considerations govern the proper allocation of the burden of producing evidence on the detainee‘s record of appearance at
A separate question is presented by the proper allocation of the burden of proof. The burden of proof is “the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (
An individual‘s interest in his freedom has always been held sacrosanct. For this reason, it has been a basic tenet of “our society that it is far worse to convict an innocent man than to let a guilty man go free.” (In re Winship (1970) 397 U.S. 358, 372 [25 L.Ed.2d 368, 380, 90 S.Ct. 1068] [conc.opn. of Harlan, J.]; Patterson v. New York (1977) 432 U.S. 197, 208 [53 L.Ed.2d 281, 291, 97 S.Ct. 2319].) Placing the burden of proof on the government is one means by which our system of justice gives voice to this precept. (See Underwood, supra, at p. 1307.) The United States Supreme Court has eloquently explained the reason for this allocation of the burden of proof: “In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. [Citations.] There is always in litigation a margin of error, representing error in factfinding.... Where one party has at stake an interest of transcending value—as a criminal defendant his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt....” (Speiser v. Randall (1958)
This court has expressed similar views. Thus, the prosecution has been held to bear a heavy burden of proof “in any proceeding in which the state threatens to deprive an individual of his ‘good name and freedom.‘” (People v. Burnick (1975) 14 Cal.3d 306, 324 [121 Cal.Rptr. 488, 535 P.2d 352] [mentally disordered sex offender hearing]; accord Conservatorship of Roulet (1979) 23 Cal.3d 219, 229-230 [152 Cal.Rptr. 425, 590 P.2d 1] [appointment of conservator]; People v. Thomas (1977) 19 Cal.3d 630, 641 [139 Cal.Rptr. 594, 566 P.2d 228] [narcotics addict commitment proceeding]; In re Arthur N. (1976) 16 Cal.3d 226, 240-241 [127 Cal.Rptr. 641, 545 P.2d 1345] [commitment of a ward to the Youth Authority].)
The logic of those cases is applicable here. If an adverse ruling is made at the OR hearing, the detainee‘s loss of liberty is total.13 He is incarcerated, frequently for a substantial period of time, in San Francisco‘s county jail, which has been characterized as “one of the worst detention facilities in the state.” (Committee on Crime, supra, at p. 13.) Incarceration not only restricts the detainee‘s freedom but also impairs his ability to prepare a defense and disrupts his employment, family and social relationships. (Ante, at pp. 434-437.) As a result of an adverse ruling at the OR hearing, the detainee also suffers the stigma of a “loss of good name.” (See Thaler, supra, at pp. 452-454.) Pretrial imprisonment is likely to be mistaken for a finding of the detainee‘s guilt rather than being recognized as his inability to make bail or persuade the judge that he would appear at future proceedings. At the very least, the detainee‘s removal from his home, job and community broadcasts the fact of his arrest.
Moreover, the threat of an unwarranted restraint on an individual‘s liberty is at its greatest where the decision being made is predictive in nature. (People v. Burnick, supra, 14 Cal.3d at p. 328; see also Conser-
There is an additional consideration involved in the case before this court. A major function of the allocation of the burden of proof is to offset the effect of distortions in the fact-finding process that operate against the detainee. (Conservatorship of Roulet, supra, 23 Cal.3d at p. 233; see also Underwood, supra, at pp. 1306-1307.) There are several sources of such distortion at the OR hearing.
Distortion results from the fact that it is difficult for a detainee to marshal any tangible evidence of his community ties. His incarceration prevents him from effectively locating witnesses or gathering other evidence to establish his local contacts and personal reliability. Some courts may be reluctant to accept the detainee‘s oral representations if unverified by other sources. (Cf. Wolff v. McDonnell (1974) 418 U.S. 539, 583 [41 L.Ed.2d 935, at p. 966, 94 S.Ct. 2963] [conc. and dis. opn. of Marshall, J.]; Goldfarb, supra, at pp. 157-158.) Therefore, he may remain confined merely because he is unable to produce evidence, beyond his own word, of his community ties, rather than because such ties are lacking.
Distortion also results from deliberate “overcharging” by the district attorney, a not infrequent practice according to evidence presented at trial. Overcharging—the filing of more charges than are warranted by the facts—gives the court the false impression that the detainee will be eligible for a greater sentence than is likely to be the case. This gives an inaccurate picture to the trial court of the detainee‘s likelihood of fleeing the jurisdiction.
Thus, the value of placing the burden of proof upon the prosecution concerning the detainee‘s likelihood of appearing for future court proceedings is threefold. It helps to preserve the respect for the individual‘s liberty and for the presumption of innocence that lies at the foundation of our judicial system, to maintain the respect and confidence of the
Moreover, placing the burden of proof on the prosecution should achieve these goals without significantly harming the government‘s interests. These interests are compromised only if a higher percentage of arrestees fail to make their scheduled court appearances. However, the defendants in the present case were unable to present any evidence whatsoever to establish that an increase in the number of OR releases in San Francisco would result in a significantly higher failure-to-appear rate. Indeed, all witnesses agreed that many persons were detained in San Francisco jails who could safely be released OR.14 Several witnesses opined that even if nearly all detainees were so released, the failure-to-appear rate would not increase substantially.
The experiences in other jurisdictions, as reported by witnesses at the trial below and by commentators, substantiate these conclusions. (E.g., O‘Rourke & Carter, The Connecticut Bail Commission, supra, 79 Yale L.J. at p. 515; Hongisto, supra, at pp. 635-636; Comment, The Bail System and Equal Protection (1969) 2 Loyola L.A. L.Rev. 71, 80-81; Note, Pretrial Release in California: Proposed Reforms of an Unfair System (1977) 8 Pacific L.J. 841, 853.) The courts of Oregon and of the District of Columbia operate under systems that create a presumption in favor of OR release. (
Several reasons exist to explain why an individual who is released without having posted bail returns faithfully to make his court appearances. First, failure to appear following OR release is a separate offense. (
The defendants were unable to affirmatively demonstrate in the trial court that the government‘s interests in seeing that arrestees make their required appearances in court would be jeopardized by placing the burden of proof on the prosecution. Further, the evidence presented at trial by the plaintiffs, including the experiences of other jurisdictions, indicates that the government‘s interests would not be compromised.
Finally, placing the burden of proof on the prosecution will not unduly increase the government‘s administrative costs. In contrast to the burden of producing evidence, the burden of proof imposes no additional costs or obligations at the OR hearing itself. The only added burden that might be associated with this additional procedural safeguard is
For the several reasons discussed above, this court has determined that the probable value of placing the burden of proof on the prosecution would be great and that the potential harm to the government‘s interests, including any administrative costs that the procedural requirement might entail, would be minimal. Accordingly, it is concluded that due process requires the burden of proof concerning the detainee‘s likelihood of appearing for future court proceedings to be borne by the prosecution at the OR hearing.
Finally, this court must consider whether due process requires a court to issue a written statement of reasons whenever OR release is denied. In recent years, this court as well as the United States Supreme Court has had occasion to emphasize in a wide variety of contexts that due process requires government decisions, which affect important individual interests, to be accompanied by a statement of reasons explaining the basis for such decisions. (E.g., In re Sturm (1974) 11 Cal.3d 258, 269-270 [113 Cal.Rptr. 361, 521 P.2d 97] [denial of parole]; People v. Ramirez, supra, 25 Cal.3d at p. 276 [exclusion from rehabilitation center]; Morrissey v. Brewer, supra, 408 U.S. at pp. 487, 489 [33 L.Ed.2d at pp. 497-499] [revocation of parole]; Wolff v. McDonnell, supra, 418 U.S. at p. 564 [41 L.Ed.2d at p. 955] [revocation of good-time credits]; Kent v. United States (1966) 383 U.S. 541, 561 [16 L.Ed.2d 84, 97, 86 S.Ct. 1045] [juvenile court‘s waiver of jurisdiction].)
This court recently explained the worthy purposes such procedures serve. “They help to assure a realistic review by providing a method of evaluating a judge‘s decision or order; they guard against careless decision making by encouraging the trial judge to express the grounds for his decision; and they preserve public confidence in the fair
These purposes are particularly pertinent in the setting of this case because it is not unusual for judges to keep a detainee in custody for punitive purposes or as a means of preventive detention. (See also Mosk, The Purpose of Bail in the Administration of Justice, supra, 54 Chi. Bar Record at p. 186; Goldfarb, supra, at pp. 46-49; Thaler, supra, at p. 447.) Whatever may be said as to the propriety of these considerations where a defendant seeks bail on appeal (In re Podesto, supra, 15 Cal.3d at p. 935), they are not proper considerations where, as at the pretrial OR hearing, the detainee has not been convicted of any crime. (In re Underwood, supra, 9 Cal.3d at pp. 348, 350.) Plaintiffs urge that the requirement of a written statement of reasons for a denial of OR release would reduce the incidence of these improper uses of pretrial detention.
Moreover, it is argued that requiring a written statement of reasons for the denial of OR release would ensure that a detainee‘s dignitary interest is recognized. Plaintiffs note that in Ramirez, supra, 25 Cal.3d at page 276, this court said, “[t]he respect for individual autonomy that is at the foundation of procedural due process imposes a distinct obligation upon the government to explain fully its adverse status decision.” Preserving the appearance of fairness is particularly important in the pretrial detention setting. As Justice Marshall said in Wolff v. McDonnell, supra, 418 U.S. at page 589 (conc. and dis. opn.), quoting Palmigiano v. Baxter (1st Cir. 1973) 487 F.2d 1280, 1283: “‘There is nothing more corrosive to the fabric of a public institution such as a prison than a feeling among those whom it contains that they are being treated unfairly.‘” (Accord Wright v. Enomoto (N.D. Cal. 1976) 462 F.Supp. 397, 403, affd. (1978) 434 U.S. 1052 [55 L.Ed.2d 756, 98 S.Ct. 1223]; Payne v. Superior Court (1976) 17 Cal.3d 908, 922 [132 Cal.Rptr. 405, 553 P.2d 565].)
However, this court has not required written findings in every type of proceeding. (E.g., In re John H., supra, 21 Cal.3d 18 [decision to commit a juvenile to the Youth Authority]; People v. Edwards (1976) 18 Cal.3d 796 [denial of probation [135 Cal.Rptr. 411, 557 P.2d 995]].) The administrative burden created by requiring a written statement of reasons must be weighed against the nongovernmental interests. In the present case, that burden would be particularly acute.
The increase in amount of judge time per OR hearing also militates against imposing a requirement of a written statement of reasons. A finding by the court that one specific factor is lacking is not usually sufficient to deny an application for OR release. Thus, the court would be duty bound to make written findings on a multitude of factors on each occasion where OR release is denied.
It is also significant that there are less burdensome procedures available that would at least partially safeguard the interests sought to be protected by a requirement of a written statement of reasons. Although not compulsory, an oral statement of reasons for denial of pretrial release would be beneficial. (Cf., People v. Edwards, supra, 18 Cal.3d at p. 805, fn. 12.) Moreover, an arrestee is entitled to “an automatic review of the order fixing the amount of his bail” within “five days from the time of the original order fixing the amount of his bail on the original accusatory pleading.” (
Since the Constitution does not compel a trial judge to issue a written statement of reasons whenever OR release is denied, the trial court erred when it found to the contrary.
In summary, this court holds that: (1) the prosecution must bear the burden of producing evidence of the detainee‘s record of nonappearance at prior court hearings and of the severity of sentence the detainee faces; (2) the detainee should bear the burden of producing evidence of community ties; (3) the prosecution must bear the burden of proof concerning the detainee‘s likelihood of appearing at future court proceedings; and (4) the court is not constitutionally required to issue a statement of reasons when OR release is denied.19
One last concern remains. Is there merit to any of the following procedural questions raised on behalf of defendants: (1) do taxpayers have standing to sue under
California courts have consistently construed
Nevertheless, relying on Gould v. People (1976) 56 Cal.App.3d 909 [128 Cal.Rptr. 743]22 and Di Suvero v. County of Los Angeles (1977) 73 Cal.App.3d 718 [140 Cal.Rptr. 895],23 defendants argue that plaintiffs cannot maintain this suit because aggrieved pretrial detainees already have standing. Such reliance is misplaced. Gould sought to avoid the misuse of taxpayer suits as vehicles for mounting collateral attacks on the correctness of judicial rulings in particular cases. That threat is posed by a taxpayer suit only when a person “file[s] a collateral action against a judge under the guise of a taxpayer‘s suit contesting the outcome of any civil or criminal action in which he believe[s] the trial court ruled erroneously.” (Gould v. People, supra, 56 Cal.App.3d at p. 922.) Unlike the plaintiffs in Gould, the plaintiffs in the present case have neither joined judicial officers as party defendants nor sought to upset any particular judge‘s decision denying bail or OR release. Moreover, the plaintiffs in the present case do not have another existing forum in which to challenge the pretrial detention system.
Di Suvero represents an unwarranted extension of Gould.24 Unlike the plaintiffs in Gould, the Di Suvero taxpayer was not a defendant in any criminal action and, therefore, had no other forum in which to press his claim. More importantly, the threat of a collateral attack upon a pending action was not present in Di Suvero, since that taxpayer‘s suit did not contest the outcome of a particular case.
The holding in Di Suvero is contrary to the many cases in which this court has upheld a taxpayer‘s right to bring a suit despite the existence of directly affected potential litigants. (Cf., ante, fn. 24.) These decisions are not discussed in Di Suvero or in Gould, upon which Di Suvero relied. This court reaffirms that taxpayers may maintain an action under
Next, it is contended that
It is further argued that the requisite adverse interests are lacking in this case. This contention is based on the assertions that (1) after the trial of this action was concluded, the chief of police was relieved of all his prior responsibility for pretrial detainees; and (2) the only defendant presently responsible for pretrial detainees in San Francisco, the sheriff, conceded prior to trial that the challenged system was unconstitutional.
The trial record and briefs filed before this court belie the alleged lack of interest. The chief of police has vigorously opposed plaintiffs’ contentions.29 As in Blair, “the extensive briefs in this case demonstrate... [that] [t]here is no danger... the court will be misled by the failure of the parties adequately to explore and argue the issues.” (Blair v. Pitchess, supra, 5 Cal.3d at p. 270.)
The only interests protected by
The interests of the judges charged with setting bail and deciding motions for own recognizance release are similarly remote. Judges are undoubtedly interested in any case which may affect the exercise of their discretion or the administration of justice. However, judicial inter
IV
The effect of today‘s decision is neither to undercut the constitutional right to bail guaranteed by the first clause of article I, section 12 of the California Constitution, nor to create a right to OR release in contravention of the second clause of that section.33 Nevertheless, the dissent seems to argue that today‘s decision modifies the absolute right to bail and discretionary right to OR release mandated by article I, section 12. Nothing could be further from the truth.
This court‘s decision in no way alters the detainee‘s right to bail. Release on own recognizance and release on bail are alternative and complementary systems. If the detainee is able and chooses to post the amount of bail established by the master bail schedule (
Placing the burden of proof on the prosecution concerning the likelihood that the detainee will appear at future court proceedings is not tantamount to creating a right to OR release and is not inconsistent with retention of discretion by the trial judge. If, after weighing the facts presented at the OR hearing in accordance with the requirements of procedural due process as set forth herein, the court believes the detainee is likely not to appear for subsequent court proceedings, OR release may be denied. Today‘s decision merely requires, in keeping with well established precedent, that the trial court not exercise its discretion arbitrarily. (See Ex Parte Hoge (1874) 48 Cal. 3, 5; In re Podesto, supra, 15 Cal.3d at p. 933.)
V
The judgment of the trial court is modified in two respects. The burden of producing evidence as to community ties is to be with the detainee and the requirement of a written statement by the court of the reasons for the denial of OR release is disapproved. As so modified, the judgment is affirmed. Plaintiffs are to recover their costs on appeal.
NEWMAN, J.—I concur in the Chief Justice‘s opinion except that I would rely solely on the California Constitution.
CLARK, J.—I dissent.
The 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.
The majority defensively assert their holding does not create a right to own recognizance (OR) release in contravention of
In 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
I. LACK OF A JUSTICIABLE CONTROVERSY
According 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
After 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.
When 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.)
It 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.
In support of their holding that individual liberty interests are compromised by existing procedures, the majority state that “[a]pproximately 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 Al 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
Not 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
Nowhere 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.
The 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.
Assuming 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.
In 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: “[I]dentification 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.)
An application of the dictates of Ramirez to 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.
As 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
As 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 (
Ramirez‘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.
If 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
Moreover, 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 been10
Finally, 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.
The 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 Ramirez guidelines 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
IV. THE MAJORITY ENGAGE IN JUDICIAL LEGISLATION
A 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
Proposition 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.)
The 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
The 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.
The judgment should be reversed and the trial court directed to dismiss the action.
Richardson, J., and Manuel, J., concurred.
The 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.