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NM Rules Discouraging Cash Bail Face 10th Circ. Test

By Diana Novak Jones | January 27, 2019, 8:02 PM EST

After a fight with her granddaughter in June 2017, Darlene Collins was arrested and taken to the Bernalillo County, New Mexico, jail, where she was when the state's new rules governing bail bonds went into effect.

The rules urged state judges to consider the risk of releasing an arrestee as part of the bond process, rather than allowing law enforcement to issue them a cash bond and release them if they pay it. But they also kept Collins — 61 and in poor health — in jail for five days before her arraignment, according to a suit she filed alongside the Bail Bond Association of New Mexico.

On Tuesday, the 10th Circuit heard arguments in the proposed class action that Collins, the association and a group of state legislators filed against New Mexico's court system to block the implementation of the rules, claiming they violate the Eighth Amendment's protections against excessive bail and the Due Process Clause of the Fourteenth Amendment.

According to Collins and the association, the rules have people like her stuck in jail for days waiting for a judge to assess her risk when a money bond could get them out immediately, and the rules have decimated the bail bond industry.

During the arguments before a three-judge panel, several of the circuit judges seemed concerned about the association's standing to bring the suit. Circuit Judge Mary Beck Briscoe said that the association could only serve as the plaintiff if the person charged criminally, Collins, couldn't sue for herself — and she clearly can, the judge said.

Counsel for Collins and the association, Richard Westfall of Hale Westfall LLC, tried to steer the court's attention to two U.S. Supreme Court decisions discussing cash bail, one from 1912 and one from 1951, as evidence of an implicit provision within the Eighth Amendment covering monetary bail.

In those cases, "there is a clear acknowledgment in the Supreme Court ... that the Eighth Amendment necessarily assumes a monetary component," Westfall said.

But Ari Biernoff, assistant attorney general for New Mexico, disputed that the cases could bolster the argument that money bond is a right.

Biernoff also said that the time Collins says she had to spend in jail waiting for the new risk assessment process to play out — a wait that is typically two to three days, according to her suit — was the reality even before the rules were changed. In New Mexico, people who are arrested must be before a judge within three days in general, and Collins isn't challenging that policy here, he said.

The Tenth Circuit is the latest federal appellate court to consider a state's shift away from cash bonds. Counsel for the plaintiffs told Law360 after the arguments Tuesday they plan to pursue the case at the U.S. Supreme Court if they lose at the Tenth Circuit, so Collins' case could present an opportunity for the nation's highest court to weigh in.

The court rules challenged by Collins and the association follow an amendment to the state's constitution. The amendment, which was approved by both voters and the state Legislature in 2016, barred judges from detaining people simply because they couldn't pay a cash bond and allowed them to deny someone bond after a hearing on the risk they may pose to the community if released.

On July 1, 2017, the state Supreme Court updated its court rules to comply with the amendment, standardizing the release of low-risk arrestees. Both federal and state law already required judges to release people without a cash bond unless they find that the nonfinancial conditions couldn't assure their appearance in court, according to the state high court, but the amendment put a procedure in place for "detention-for-dangerousness" hearings.

The Supreme Court's updated rules did not do away with cash bonds altogether — judges are still allowed to use them when appropriate, according to a document from the court on the updates.

The rules were modeled on ones that went into effect in New Jersey in 2014, according to the court. And like the New Jersey rules, the New Mexico ones faced a lawsuit from the bail industry.

But in December 2017, U.S. District Judge Robert Junell dismissed the New Mexico suit, saying that only Collins has standing to sue over the rule changes and she failed to bring a claim of constitutional violations. There is no right to monetary bail included in the Eighth Amendment, Judge Junell said.

A few months later, the Third Circuit came to the same conclusion on the Eighth Amendment in the lawsuit challenging New Jersey's updated bail law.

Now, the Tenth Circuit will have a chance to address the issue.

After the hearing, another attorney for Collins, Blair Dunn of Western Agriculture, Resource and Business Advocates LLP, told Law360 he thought it would be a long wait for the court's ruling. But if the Tenth Circuit doesn't come down on his side, he said he was hopeful that the fact two federal circuits have addressed the issue of money bond would be motivating for the high court.

The Supreme Court denied a petition for certiorari in the New Jersey case in October, according to court records. But with a second case, "there may be enough of a flag thrown up that maybe the court would consider it," Dunn said.

--Editing by Brian Baresch.

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