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Court of Appeal, First District, Division 4, California.

Gerald N. VAN ATTA, Jr., et al., Plaintiffs, Appellants and Respondents, v. Donald M. SCOTT, in his official capacity as the Chief of Police of the City and County of San Francisco, Defendant, Respondent and Appellant.

Civ. 40998.

Decided: August 31, 1978

McCutchen, Doyle, Brown & Enersen, John N. Hauser, Bruce G. Vanyo, Donn P. Pickett, Morrison & Foerster, Girvan Peck, William Alsup, Dominic J. Campisi, San Francisco, for plaintiffs. George P. Agnost, City Atty., Philip S. Ward, Deputy City Atty., San Francisco, for defendant. Henry Ramsey, Jr., Berkeley, Charles C. Marson, Margaret C. Crosby, Alan L. Schlosser, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for amicus curiae in support of plaintiffs.

Plaintiffs brought a taxpayers' action against the Chief of Police and the Sheriff of the City and County of San Francisco for the purpose of enjoining them from expending public funds in the operation of the money bail and “own recognizance” release systems as they presently exist in the city and county. After trial, the court rendered judgment upholding, against constitutional challenge, some aspects of the bail and release programs but determining that the existing system of pretrial detention violates procedural due process in two respects: “(1) existing statutes and practices do not require the prosecution to assume the burden of proving that bail is necessary to assure the presence of the accused in court and that, if some bail is necessary, the amount requested by the prosecution is required for such purpose; (2) existing statutes and practices do not require the courts to furnish a written statement of reasons for denial of own recognizance release.” Each side has appealed from the portion of the judgment which is adverse to it.

We have concluded that defendants are correct in their contention that the case represents an impermissible misuse of the statutory taxpayers' action.1 The purpose of the statute is to permit adjudication of challenges against governmental action which might otherwise never be heard for lack of a party having standing to sue as a plaintiff. (See Blair v. Pitchess (1971) 5 Cal.3d 258, 267, 96 Cal.Rptr. 42, 486 P.2d 1242.) In the present action the plaintiffs allege that unidentified persons who have been detained on criminal charges have suffered deprivations of due process and of equal protection by the manner and extent of their detention under the existing money bail and “own recognizance” release systems. But the validity of plaintiffs' challenge is a potential issue in every criminal case in which a defendant does not obtain release on bail or on his own recognizance. Such accused persons not only have standing; each is already before a court “and has open to him immediate and plenary recourse within the judicial system with respect to any claimed violation of his constitutional rights. (Citation.) Resort to a taxpayers' action is unnecessary in a matter such as this where a ready hearing is available to a person directly affected by the (challenged practice).” (Di Suvero v. County of Los Angeles (1977) 73 Cal.App.3d 713, 721, 140 Cal.Rptr. 895, 897.) The applicability of the Di Suvero holding is underscored by the fact that in the present action plaintiffs pose issues of great importance to the administration of criminal justice but have chosen a forum and a mode of procedure which bypass both the criminal courts which have responsibility for policy direction of the bail and release programs and the prosecuting authorities (the district attorney and the Attorney General) who are best prepared to meet the legal challenge which has been launched.

The judgment is reversed with directions to dismiss the action. Defendants will recover their costs on appeal.

I respectfully dissent. In the first place, I do not agree that summary denial of the taxpayers' remedy to these plaintiffs is supported by the decision principally cited for it. (Di Suvero v. County of Los Angeles (1977) 73 Cal.App.3d 718, 140 Cal.Rptr. 895.) The plaintiff in that case was a Los Angeles County taxpayer who (1) claimed unconstitutionality in a specified procedural practice of certain judges sitting in criminal prosecutions in that county; (2) sought to enjoin the expenditure of public funds to finance the practice; and (3) brought a taxpayer's suit for the purpose, against the county, pursuant to Code of Civil Procedure section 526a. (Id., at pp. 719-720, 140 Cal.Rptr. 895.) The Court of Appeal held that he could not state a cause of action, as a taxpayer, because any criminal defendant disaffected by the practice could exercise his own remedy. (Id., at p. 721, 140 Cal.Rptr. 895.) The sole authority for this holding was Gould v. People (1976) 56 Cal.App.3d 909, 128 Cal.Rptr. 743, in which the taxpayers' remedy was denied to plaintiffs who were Themselves charged with violations of certain criminal statutes whose enforcement they sought to enjoin. (Id., at pp. 912, 922, 128 Cal.Rptr. 743.)

The manifest factual distinction between Gould and Di Suvero was not considered by the Di Suvero court. Gould itself has been criticized as an unreasonable restriction of the taxpayers' remedy which “finds no support in the applicable laws.” (Collins and Meyers, The Public Interest Litigant in California: Observations on Taxpayers' Actions (1977) 10 Loyola L.A.L.Rev. 329, 339.)

Di Suvero is also distinguishable from the present case because it involved a constitutional challenge addressed to a single practice in which judges alone engaged. (Di Suvero v. County of Los Angeles, supra, 73 Cal.App.3d 718 at p. 720, 140 Cal.Rptr. 895.) In contrast, this case mounts a constitutional attack upon the State laws which underlie the administration of the entire scheme of pretrial bail, and which are executed by the two defendants as ministerial officers. (Pen.Code, ss 1268-1320.) The danger perceived in Di Suvero was the prospect of “undermining the independence of the judiciary” by suing its supporting government. (Id., at pp. 721-722, 140 Cal.Rptr. 895, 897.) The prospect simply does not exist here.

If these observations leave Di Suvero with any stature as precedent, I believe that its premise is wrong in any event. The broad public interest in putting an end to the activities of which these plaintiffs complain will not plausibly be served by deferring to a hypothetical person who may be victimized by the activities while in pretrial detention within the criminal justice system. Whoever he might be, the likelihood that he will challenge them is diminished because he is by definition a short-term transient in the system. Because he must exercise his remedy on his own facts, it may not be anticipated that he can bring the entire pretrial bail scheme under judicial scrutiny. Because he is also indigent by definition, he must rely on the services of a volunteer attorney or an overworked public defender.

In contrast, the present plaintiffs have made out a constitutional case against the entire pattern of pretrial bail. They have been represented by two of San Francisco's leading law firms in the pleading stage of the action, throughout a seven-day trial and on the appeal.* The attorneys' efforts may be characterized as comprehensive and prodigious. In my opinion, any suggestion that a comparable effort can be made from within the criminal justice system is illusory. The continued pursuit of this action on its merits, as a taxpayers' suit, is singularly consistent with the liberal construction given to Code of Civil Procedure section 526a by the courts of this State. (Blair v. Pitchess (1971) 5 Cal.3d 258, 268, 96 Cal.Rptr. 42, 486 P.2d 1242.)

I am not persuaded to the contrary by the majority's observation that these plaintiffs “pose issues of great importance to the administration of criminal justice but have chosen a forum and a mode of procedure which bypass both the criminal courts which have responsibility for policy direction of the bail and release programs and the prosecuting authorities . . . who are best prepared to meet the legal challenge which has been launched.” The issues are indeed important, but they have been given comprehensive treatment in the “forum” and the “mode of procedure” chosen. The “criminal courts” and their judges are not indispensable parties to this action (see Serrano v. Priest (1976) 18 Cal.3d 728 (“Serrano II ”), 751-753), 135 Cal.Rptr. 345, 557 P.2d 929, and their adherence to any constitutional judgment rendered in it is not subject to question. The role of the prosecuting authorities in the administration of the pretrial bail scheme is no more significant than that of the defendants in the action. The reference to their being “best prepared to meet the legal challenge” discounts the San Francisco City Attorney's performance in meeting it, which has been comparable to that of his professional adversaries.

In practical result, this dissent goes no further than to disassociate me from the majority's reversal of the entire judgment and its order that the action be dismissed. I would nevertheless add that plaintiffs' presentation on the merits has persuaded me that the judgment should be reversed with directions that the trial court enter judgment granting them all the constitutional relief they seek on their appeal. I would retain in the final result point no. (2) of the present judgment (quoted in the majority opinion), but not point no. (1), thereby granting partial relief on the cross-appeal.


1.  Code of Civil Procedure section 526a, in pertinent part:“An action (by a taxpayer) to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, of any agent, or other person, acting in its behalf . . . .”

FOOTNOTE.  The action is a phase of a valuable Pro bono publico program, on the subject of bail, which the Bar Association of San Francisco commenced in 1964. The program developed an “O.R.” (i. e., “own recognizance”) project which was initially known as the “San Francisco Bail Project.” The project has been funded by the City and County of San Francisco since 1971, and is now known as the “San Francisco Institute for Criminal Justice O.R. Project.” It presently provides the only assistance available to an accused person who might establish eligibility for release from pretrial detention on his own recognizance. A principal element of plaintiffs' constitutional attack is the fact that the project, as presently funded and staffed, can reach only a fraction of the persons it is designed to assist.

CHRISTIAN, Associate Justice.

PAIK (under assignment by the Chairperson of the Judicial Council), J., concurs.