Wednesday, November 6, 2013
Court of Appeal Rules:
State May Bar Direct Solicitation by Bail Bondsmen
By a MetNews Staff Writer
Prohibiting a bail bondsman’s direct solicitation of bail from arrestees does not violate the First and Fourteenth Amendments’ protection of commercial speech, this district’s Court of Appeal ruled yesterday.
Div Six, in an opinion by Justice Kenneth R. Yegan, said California Code of Regulations, Title 10, Chapter 5, Sec. 2079.1, passes constitutional muster, under intermediate scrutiny, because it substantially serves the state’s interests and is sufficiently tailored to advance these interests.
The panel upheld Todd R. Dolezal’s conviction of unlawful bail solicitation, pursuant to an Insurance Code section implemented through the challenged regulation. San Luis Obispo Superior Court Judge Michael Duffy declared the “wobbler” violation of Insurance Code Sec. 1814 to be a misdemeanor and fined the defendant $1,000.
Dolezal was found guilty of unlawfully soliciting business from Kathryn Schildwachter, following her 2009 arrest for inflicting corporal injury on her husband. Her husband posted bail but before the bondsman arrived at the jail to bail her out, an agent of Dolezal’s San Luis Bail Bonds met with Schildwachter and agreed on terms for her bail.
Neither Schildwachter nor her husband had had any previous contact with Dolezal’s business.
In rejecting Dolezal’s constitutional challenge, Yegan said the state had asserted three substantial interests—protection of arrestees from harassment, the facilitation of an efficient jail administration by preventing bail agents from congesting intake and visiting areas, and protecting the right to bail.
He analogized to laws banning in-person solicitation by lawyers, the constitutionality of which have been upheld by the U.S. Supreme Court.
“The same reasoning applies here,” Yegan wrote. “We conclude that section 2079.1 is justified as a prophylactic regulation to protect arrestees from the potential harms associated with direct solicitation.”
The regulation, additionally, was not too restrictive of the right to earn a living, as the defendant argued, because a bondsmen may still solicit business from arrestees regarding bail after the bondsmen receives a request from the arrestee or an arrestee’s agent, the justice explained.
Sec. 2079.1, he wrote, is no more intrusive that necessary.
“Bail agents remain free to solicit the family members, friends and attorneys of arrestees,” he wrote. “In addition, there is no prohibition against print advertisements in telephone books, to which arrestees routinely have access, or advertisements in other forms of media such as radio, television or web sites.”
The case is People v. Dolezal, 13 S.O.S. 5706.
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