The Supreme Court today ordered that a section of the Court of Appeal’s groundbreaking In re Humphrey opinion about California’s cash bail system be restored to the status of having precedential effect while the case remains pending before the Supreme Court on review.

In the opinion section that is now binding on superior courts throughout the state, the Court of Appeal held, “unquestioning reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention.”

When the Supreme Court granted review over two years ago, a relatively new rule change left the Court of Appeal opinion published, but stripped it of its “binding or precedential effect” and said it could “be cited for potentially persuasive value only.”  (Rule 8.1115(e)(1).)  But the Supreme Court can “order that all or part” of a review-granted opinion “has a binding or precedential effect different from” the general rule (rule 8.1115(e)(3)), a power the court exercised today.

The catalyst for today’s ruling was a motion by one of Humphrey’s attorneys.  California’s Attorney General last week supported the motion in part, asking that precedential effect be revived for that part of the opinion interpreting federal constitutional principles, but not the part discussing state constitutional law.

The Attorney General cited “the unexpected change in circumstances caused by the unprecedented impacts of the novel coronavirus pandemic.”  Because of the pandemic, the Judicial Council in April established a statewide bail schedule that set bail at $0 for most people accused of misdemeanors and lower-level felonies.  It repealed that schedule in June.

[August 28 update:  Craig Anderson reports in the Daily Journal — “Until it’s reviewed, high court says landmark bail decision must be treated as precedent.”  (I’m quoted in the article.)]


Supreme Court might leave California voters partially in the dark on bail