Currently pending before the Supreme Court are two high-profile cases about California’s pretrial detention system — In re Humphrey (see here) and In re White (see here).  These bail cases could in turn be affected by Senate Bill 10, legislation enacted last year that Chief Justice Tani Cantil-Sakauye characterized as a “transformative” overhaul of an “outdated, unsafe, and unfair” money bail scheme.

In both Humphrey and White, the court has asked for supplemental briefing regarding the “effect, if any,” of SB 10.  Also, when the court in May decided a third bail case, In re Webb, it noted that the rule stated in its opinion could be mooted by the new legislation.

Right now, the primary uncertainty about SB 10’s effect centers on uncertainty about the survival of SB 10 itself.  A referendum to overturn the law will be on the November 2020 ballot and SB 10 is on hold pending that vote.

Will the court wait for next year’s election results before acting on Humphrey and White?  If the referendum fails and if SB 10 moots the legal issues in Humphrey and White, the court might then simply dismiss review in both cases because of that mootness.

On the other hand, the court might feel obligated to resolve before the election the constitutionality of the current bail system, an issue most prominently raised by the Humphrey case.  That would allow the voters to know what will be in place if they ditch SB 10 at the ballot box — the current system or something else.

Currently, the odds are that the court will not back-burner the cases, or at least not Humphrey.  In Humphrey, it sent out an oral argument letter in August, which often, but not always, indicates the case will be heard within a few months.  (See here.)

Humphrey will probably not be on the December calendar because the court found good cause in the request of Mr. Humphrey’s counsel that the argument not be scheduled on the first two days of that calendar week.  However, if, as is quite possible, the case is argued in early January, Californians should have a good idea, well before Election Day a year from yesterday, of the consequences of their referendum votes on SB 10.


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