The suit names five Utah judges as defendants: 4th District judges Christine Johnson and Thomas Low, 5th District judges Ann Marie McIff Allen and Matthew Bell, and 7th District Judge Jeremiah Humes.
SALT LAKE CITY — Attorneys for the state responded Friday to a lawsuit challenging what the complaint called Utah’s “unconstitutional wealth-based bail system.”
David Wolf, Lance Sorenson and Jeffrey Teichert, all assistant Utah attorneys general, filed the 52-page response in Utah’s federal court. They argued that bail procedures are “integral” to state courts’ criminal proceedings; that federal courts should defer to state courts in bail bond matters; and that the plaintiffs have not yet exhausted their state court options when arguing this case.
They also argued that HB2003, which passed several weeks after the suit’s filing and requires judges to consider defendants’ financial circumstances when setting bail, addresses the litigation’s concerns.
Utah attorney Karra Porter, of the law firm Christensen & Jensen, filed the lawsuit in October 2021 after Gov. Spencer Cox repealed and then didn’t replace a bail reform bill.
“I don’t have confidence that things are being done,” Porter told KSL at that time. “We waited to see whether some changes would be made even though the legislation was repealed. And then when we checked with numerous jurisdictions and we easily concluded that nothing had changed.”
The suit names five Utah judges as defendants: 4th District judges Christine Johnson and Thomas Low, 5th District judges Ann Marie McIff Allen and Matthew Bell, and 7th District Judge Jeremiah Humes.
Porter doesn’t believe any of them are intentionally breaking the law, she told KSL in October. Rather, she says they are following the same “unconstitutional procedures” that judges in nearly every county across the state are doing.
Reached by phone on Monday, Porter said she had not yet had a chance to read the defense’s response to her suit. She also said the time it took for the defense to file a response — over nine months — is typical.
The hotly contested issue of bail reform has centered around whether poorer Utahns accused of committing nonviolent offenses are unfairly being held in jail longer because they can’t afford to pay their way out with bail.
When a person is arrested, a magistrate can either order that person to be held without bail, released on their own recognizance, or released if bail money is paid. But that decision is based almost exclusively on information provided by the arresting officer. It isn’t until a person is formally charged and appears in court — which can sometimes take days after charges are filed — that they have a chance to disclose financial information and have the court appoint them an attorney if they can’t afford one, according to Porter’s lawsuit.
But the state’s response filed Friday says that the state constitution applies different due process standards to bail determinations than it does to bail hearings. The former, it argues, must be made by a “neutral and detached” magistrate within 48 hours; the latter comes with a wider range of due process elements — such as presentation of evidence and assistance of counsel — and must be held within 14 days.
The Supreme Court has already rejected the argument that criminal defendants must have the same due process at bail determinations as at bail hearings, the state attorneys argued.
The response also states that several weeks after Porter filed her lawsuit, the Utah Legislature enacted HB2003, which requires police to include an individual’s known financial circumstances with arrest documents. The law also requires magistrates and judges to consider an individual’s ability to pay bail.
“If Plaintiffs’ complaint is truly about a ‘wealth-based detention program’ as alleged in their Amended Complaint, then H.B. 2003 addresses those concerns,” the response states. “Indeed, it moots any claims that derive from Plaintiffs’ socio-economic status because the law now explicitly requires judges to tailor bail to the financial circumstances of each arrestee.”
The plaintiffs’ responses to HB2003 are addressed in the state’s filing. For instance, the plaintiffs argue that under the bill, people who are arrested still do not receive the appointment of counsel or the ability to participate in initial bail determinations. Utah’s attorneys argued that the state constitution does not require a detainee to participate in or have access to counsel during initial bail determinations.
The plaintiffs also argue that under HB2003, defendants who cannot afford the bail that was set initially must still wait days to be seen in court.
The state’s attorneys said earlier in their response that Porter points to no case in which the 14-day maximum for holding a hearing has been found unreasonable.
They also argued that removing bail procedures would interfere with the state’s interest in ensuring defendants appear in court.
“For this reason, many courts have found that bail procedures are an important, integral, and profound part of a state’s criminal proceedings,” the response states.
HB2003…
https://le.utah.gov/~2021S2/bills/static/HB2003.html
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