The November ballot will include a referendum that seeks to overturn Senate Bill 10, landmark legislation enacted in 2018 that would change California’s pretrial detention scheme by substituting a risk based analysis for money bail in determining when a person can be released from custody.  But, when the voters go to the polls — literally or remotely — they will likely be missing some key information that the Supreme Court could have provided.

Voters probably won’t know what the pretrial detention system will look like if they dump SB 10.  They will be choosing either SB 10 or the unknown alternative behind door number two.

Here’s the reason for the uncertainty.

On the Supreme Court’s docket are two high-profile cases that, like SB 10, might dramatically alter the current bail system.  It’s the system that SB 10 would replace if the referendum fails.  More important, it’s the system — with a possible restructuring by the Supreme Court — that would remain if the referendum succeeds.  Yet it now appears that only one of the two cases will be decided before the election and the one that will likely still be pending is the case with the potential to make the most significant changes.  Voters thus will have to guess what the alternative to SB 10 would look like.

One of the two cases — In re White (see here) — was argued in March and an opinion is due in the next two weeks.  The court is expected to decide under what circumstances the California Constitution permits bail to be denied in noncapital cases.

The potentially more momentous case is In re Humphrey (see here), where the court granted review to determine whether principles of constitutional due process and equal protection require consideration of a criminal defendant’s ability to pay in setting or reviewing the amount of monetary bail and whether, in setting the amount of monetary bail, a trial court may, or even must, consider public and victim safety.

With Election Day still over five months away, why is it likely that the court won’t decide Humphrey in time to inform the voters?

Because of the court’s calendar and practices, for one.  The court has already scheduled its June calendar without Humphrey on it and, since there are no arguments during July and August, the next calendar will be in September.  The court normally must file its opinion within 90 days after a case is argued, but most opinions don’t issue until more than 60 days after argument, and the earliest September calendar day is just 63 days before Election Day.  In any event, voters will start casting ballots a month or more before Election Day itself.  (See here.)

Also, the court might be intentionally holding Humphrey until after the election because, if the referendum fails and SB 10 takes effect, that legislation could moot the case.  The court long ago asked for supplemental briefing about how SB 10 would impact Humphrey.

Courts generally don’t want to decide issues that could soon become moot.  But, by not deciding Humphrey before balloting starts, the Supreme Court will be leaving California voters partially in the dark when they determine whether to scrap SB 10.


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