People v. Martinez ( 2023 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MONICA MARIE MARTINEZ,
Defendant and Appellant.
S267138
Sixth Appellate District
H046164
Santa Clara County Superior Court
C1518585
August 24, 2023
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Groban,
Jenkins, and Evans concurred.
PEOPLE v. MARTINEZ
S267138
Opinion of the Court by Kruger, J.
Since 1941, a Department of Insurance regulation has
prohibited bail bond agents from entering agreements with jail
inmates to be notified when individuals have recently been
arrested and thus may be in need of bail bond services. (Cal.
Code Regs., tit. 10, § 2076.) The Court of Appeal in this case
held the regulation facially invalid under the First Amendment.
The court concluded that the regulation imposes burdens on the
speech rights of bail bond agents that are not adequately
justified by the state’s interests in deterring abusive bail
solicitation practices.
We now reverse. In invalidating the regulation, the Court
of Appeal failed to consider the full range of interests at stake
when a commercial bail bond agent engages the services of a jail
inmate to gain private access to information about prospective
clients. The state’s interests in stemming this practice are not
solely — or even primarily — about the manner in which bail
bond agents solicit clients. The state’s interests instead mainly
concern the effects of these arrangements on sound jail
administration and fair competition in the bail bond industry.
Without foreclosing the possibility of as-applied challenges in
other cases, we conclude the Court of Appeal erred in holding
the regulation unconstitutional on its face.
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
I.
A.
When an individual is arrested and charged with a crime,
bail may be set to help ensure the individual’s appearance in
court while allowing the individual to be released from jail in
the interim. (See In re Humphrey (2021) 11 Cal.5th 135, 154
(Humphrey).)1 To make bail, “an arrestee posts security — in
the form of cash, property, or (more often) a commercial bail
bond — which is forfeited if the arrestee later fails to appear in
court.” (Humphrey, at p. 142.)
“The vast majority of defendants who are released on bail
in California rely on commercial bail bonds to secure their
release.” (Pretrial Detention Reform Workgroup, Pretrial
Detention Reform: Recommendations to the Chief Justice (Oct.
2017) p. 9 <https://www.courts.ca.gov/documents/PDRReport-
20171023.pdf> [as of August 24, 2023].)2 A commercial bail
bond is a written agreement in which a licensed surety
guarantees the defendant’s appearance in court and promises to
pay the full bail amount if the defendant fails to appear. (People
v. Safety National Casualty Corp. (2016) 62 Cal.4th 703, 709.)
“Commercial bail bonds are underwritten and issued by licensed
bail agents who act as the appointed representatives of licensed
1
In Humphrey, we held that it is unconstitutional to detain
defendants before trial solely because they lack the financial
resources to make bail and that accordingly, “courts must
consider an arrestee’s ability to pay alongside the efficacy of less
restrictive alternatives when setting bail.” (Humphrey, supra,
11 Cal.5th at p. 152.)
2
All Internet citations in this opinion are archived by year,
docket number, and case name at
<http://www.courts.ca.gov/38324.htm>.
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Opinion of the Court by Kruger, J.
surety insurance companies.” (Pretrial Detention Reform,
p. 29.) To obtain such a bond, the defendant (or someone acting
on the defendant’s behalf) pays the bail bond agent a
nonrefundable premium for the service of providing the bond.
(Id. at p. 30 [noting that the premium is typically 10 percent of
the bail amount].)
Although the system of release on bail dates back
centuries, the commercial bail bond industry is a relatively
recent innovation, having first emerged in the latter part of the
19th century. (Baughman, The Bail Book: A Comprehensive
Look at Bail in America’s Criminal Justice System (2018) p. 164;
see also, e.g., Holland v. Rosen (3d Cir. 2018) 895 F.3d 272, 293–
294 [citing additional sources].) In California, the industry was
unregulated for several decades, until reports revealed abusive
practices that had become widespread among bail bond
businesses across the state. Reports indicated, for example, that
bail bond agents commonly entered kickback schemes with
police officers to gain information about potential clients; in
return for notifying bail bond agents of criminal arrests, police
officers would take a share of the bond premium once the agents
had secured the prisoners’ release. (See, e.g., Bail Broker
Control Bill in Assembly, Oakland Tribune (Mar. 30, 1937) p. 5.)
Other reports indicated that bail bond agents would agree to
steer the prisoners to certain attorneys, who would, in turn, split
legal fees with the agents and police officers involved in the
schemes. (See, e.g., Bail Brokers Are Rapped As Bill Wins Okeh,
Sacramento Bee (Mar. 30, 1937) p. 13.)
These revelations prompted calls for reform and increased
oversight over the burgeoning commercial bail industry. The
Legislature responded by enacting the Bail Bond Regulatory Act
of 1937, which established a framework for industry regulation.
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
(Stats. 1937, ch. 653, pp. 1797–1800; Stats. 1937, ch. 654,
pp. 1800–1804; see McDonough v. Goodcell (1939) 13 Cal.2d
741, 743.) The Act requires every person engaged in the bail
bond business to secure a license from the Insurance
Commissioner. (See Ins. Code, §§ 1800, 1802.) The Act further
vests the Insurance Commissioner with the authority to “make
reasonable rules necessary, advisable, or convenient” for the
regulation of bail licensees. (Id., § 1812.)
In 1941, following further investigations into the bail
industry, the Insurance Commissioner promulgated a slate of
regulations governing the conduct of bail licensees. (Cal. Dept.
of Insurance, Rules & Regulations Governing Bail Bond
Transactions, Ruling No. 21 (Dec. 1, 1941) (Ruling No. 21).)
Those regulations, many of which remain in force in
substantially similar form today, prohibit bail licensees from,
among other practices: engaging unlicensed persons to solicit or
negotiate bail on the licensed agent’s behalf (Cal. Code Regs.,
tit. 10, § 2068); entering bail agreements in advance of the
commission of an offense or an arrest (id., § 2070); referring
arrestees to defense attorneys (id., § 2071); soliciting bail in
certain places, like jails and courthouses (id., § 2074); and
charging rates or fees that differ from those that appear in rate
schedules that licensees must file with the Department of
Insurance (id., § 2082). (See Ruling No. 21, supra, ¶¶ 19, 23, 27,
35–36, 38.) Another later-added regulation prohibits bail bond
agents from directly soliciting arrestees unless the agent has
received a bona fide request for bail services from the arrestee
or other specified individuals acting on the arrestee’s behalf.
(See Cal. Code Regs., tit. 10, § 2079.1; see id., § 2079.)
The provision at issue in this case, California Code of
Regulations, title 10, section 2076 (section 2076), was added as
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
part of the initial 1941 slate of regulations. (See Ruling No. 21,
supra, ¶ 37.) Section 2076, as presently in force, provides in full:
“No bail licensee shall, for any purpose, directly or indirectly,
enter into an arrangement of any kind or have any
understanding with a law enforcement officer, newspaper
employee, messenger service or any of its employees, a trusty in
a jail, any other person incarcerated in a jail, or with any other
persons, to inform or notify any licensee (except in direct answer
to a question relating to the public records concerning a specific
person named by the licensees in the request for information),
directly or indirectly, of: [¶] (a) The existence of a criminal
complaint; [¶] (b) The fact of an arrest; or [¶] (c) The fact that
an arrest of any person is impending or contemplated; [¶]
(d) Any information pertaining to the matters set forth in (a) to
(c) hereof or the persons involved therein.”3 Section 1814 of the
Insurance Code makes the violation of a rule promulgated by
the Insurance Commissioner, including section 2076, an offense
chargeable either as a misdemeanor or a felony.
B.
In 2015, the Santa Clara County District Attorney
charged defendant Monica Marie Martinez with seven felony
counts of violating section 2076.4 The complaint alleged that on
3
The current regulation is essentially the same in
substance as the version originally promulgated in 1941 (see
Ruling No. 21, supra, ¶ 37), except that the original version did
not include the public records exception, which was added in
1977 (Cal. Reg. Notice Register 77, No. 38 (Sept. 17, 1977)
p. 1741).
4
In various places in the record, Martinez is also referred
to as Monica Milla or Monica Marie Milla. To remain consistent
with the charging documents and the Court of Appeal’s opinion,
however, we will refer to her as Martinez.
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
seven different dates in 2014, Martinez “enter[ed] into an
agreement and ha[d] an understanding with a person
incarcerated in jail, to inform and notify defendant, a bail
licensee, of the fact of an arrest.” Martinez demurred. Among
other things, she argued that section 2076 violates her right to
freedom of speech under the First Amendment to the United
States Constitution and article 2, section 2(a) of the California
Constitution. The trial court overruled the demurrer. Martinez
subsequently pleaded no contest to one of the counts in the
complaint, and the prosecution agreed to dismiss the remaining
six. The court suspended imposition of sentence and placed
Martinez on probation for three years. The court also ordered
that she serve four months in custody in the county jail, and it
promised to reduce the offense to a misdemeanor if she
successfully completed one year of probation. (See Pen. Code,
§ 17.)
Martinez appealed her conviction after obtaining a
certificate of probable cause. (See Pen. Code, § 1237.5; Cal.
Rules of Court, rule 8.304(b)(1).) On appeal, a divided court
agreed with Martinez that section 2076 is facially
unconstitutional and reversed the conviction. (People v.
Martinez (2020) 59 Cal.App.5th 280, 290 (Martinez).)
At the outset, the Court of Appeal considered the
applicable standard of constitutional scrutiny: whether section
2076 was subject to the strict scrutiny typically applicable to
content-based speech regulations, as Martinez argued, or
instead subject to the intermediate scrutiny applicable to
commercial speech regulations, as the People argued. The court
agreed with Martinez that the regulation was content-based but
ultimately did not decide whether strict scrutiny applied
because, in the court’s view, the regulation failed even
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
intermediate scrutiny. (Martinez, supra, 59 Cal.App.5th at
pp. 303, 305–307, citing Central Hudson Gas & Electric Corp. v.
Public Service Commission of New York (1980) 447 U.S. 557(Central Hudson).) The court acknowledged that the People had
identified substantial state interests underlying section 2076.
The court cited, in particular, the state’s interests in deterring
bail bond agents from engaging in forms of arrestee solicitation
prohibited by other provisions of California law. (Martinez, at
pp. 307–311; see, e.g., Cal. Code Regs., tit. 10, § 2079.1
[prohibiting bail bond agents from directly soliciting arrestees
who have not requested their services]; Pen. Code, § 160
[prohibiting agents from employing inmates to solicit arrestees
on the agents’ behalf].) But in the court’s view, the People failed
to adduce sufficient empirical or anecdotal evidence to show that
section 2076 “directly and materially advance[d]” the state’s
interests in deterring unlawful solicitation practices, as
intermediate scrutiny under Central Hudson requires.
(Martinez, at p. 312 & fn. 14.)5
Justice Grover dissented. (Martinez, supra, 59
Cal.App.5th at p. 314 (dis. opn. of Grover, J.).) In contrast to the
majority, which focused on the state’s interest in deterring
unlawful solicitation of arrestees, Justice Grover instead
focused on the state’s “substantial interest[s]” in “prevent[ing]
unfair competition among licensed bail agents” and in
5
Martinez also raised two other constitutional arguments:
that section 2076 is unconstitutionally vague on its face and that
it is unconstitutionally overbroad. The Court of Appeal rejected
the first (Martinez, supra, 59 Cal.App.5th at p. 297), and, in
light of its conclusion that section 2076 was an invalid content-
based regulation, declined to address the second (Martinez, at
pp. 290, 313). Martinez has not pressed either of these
arguments before this court, and we express no view on them.
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
“maintaining professional and ethical standards.” (Id. at p. 315
(dis. opn. of Grover, J.).) In Justice Grover’s view, section 2076
directly advances those interests by “restricting bail licensees’
access to . . . insider information” permitting “the wholesale
identification of people with imminent bail needs.” (Martinez,
at p. 315 (dis. opn. of Grover, J.).) Justice Grover reasoned, “By
restricting bail licensees’ access to that insider information, the
regulation directly prevents unfair competition among licensed
bail agents. Restricting licensees’ access to wholesale
identifying information also directly advances the state’s
interest in protecting arrestees from intrusive conduct. Further,
the regulation is not unduly restrictive in light of the state’s
interests, as it does not prohibit agreements to obtain public
records regarding persons already known to and identified by a
bail agent.” (Ibid.) “Seeing no constitutional impediment to
enforcing California Code of Regulations, title 10, section 2076,”
Justice Grover would have affirmed.6 (Martinez, at p. 316 (dis.
opn. of Grover, J.).)
We granted review to consider the issue.
II.
A.
Our first task is to define the scope of our review. By its
terms, section 2076 prohibits notification arrangements
involving a variety of different classes of informants with access
to information about recent arrests, including law enforcement
officers, newspaper employees, and others. The charges in
Martinez’s case, however, stem from just one type of
arrangement, involving an informant who is a “person
6
Justice Grover also would have rejected Martinez’s
vagueness and overbreadth challenges. (See fn. 5, ante.)
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
incarcerated in a jail.” (§ 2076.) Martinez’s argument does not
focus specifically on such arrangements; her argument is that
section 2076 is unconstitutional in all, or nearly all, its
applications. But the Attorney General asks us to focus more
particularly on notification arrangements with incarcerated
persons, which, in his view, call for a different analysis than
notification arrangements with, for example, police officers or
newspaper reporters. The Attorney General accordingly urges
us to treat Martinez’s challenge as a “partial facial challenge[],
or class or category-based as-applied challenge[].” (See Mathews
v. Becerra (2019) 8 Cal.5th 756, 768 [employing a similar
category-based facial analysis].)
For present purposes, it does not matter whether we
characterize Martinez’s challenge as a “partial” facial challenge
or a “full” one. Either way, the fact remains that Martinez seeks
relief that extends “beyond [her] particular circumstances,” and
she therefore must “satisfy our standards for a facial challenge
to the extent of that reach.” (Doe v. Reed (2010) 561 U.S. 186,
194.) To prevail on a facial challenge, litigants must show that
the challenged rule creates constitutional problems in “at least
‘ “the generality” ’ [citation] or ‘vast majority’ ” of cases. (Today’s
Fresh Start, Inc. v. Los Angeles County Office of Education
(2013) 57 Cal.4th 197, 218; cf. Reno v. Flores (1993) 507 U.S.
292, 301 [noting that a facial challenge to a regulation is subject
to the same standards as a facial challenge to a statute].) Here,
Martinez advances no theory on which she could establish the
invalidity of section 2076 in the generality or vast majority of
cases without also establishing the invalidity of section 2076 as
applied to the class of arrangements involving incarcerated
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
persons.7 Accordingly, regardless of whether we treat
Martinez’s claim as a “partial” or “full” facial challenge, she
must show that the regulation’s application to this class of
arrangements is unconstitutional. We therefore begin by
analyzing whether section 2076 is valid as applied to the class
of bail bond agents who, like Martinez, have entered prohibited
notification arrangements with incarcerated persons; if it is,
Martinez’s challenge to the regulation as a whole cannot prevail.
B.
Our next task is to define the nature of our review.
Martinez brings a challenge under the First Amendment, which
protects rights of expression, including the right to share
information. (Kleindienst v. Mandel (1972) 408 U.S. 753, 762
[the First Amendment protects “ ‘the right to receive
information and ideas’ ”]; Sorrell v. IMS Health Inc. (2011) 564
U.S. 552, 570 (Sorrell) [“the creation and dissemination of
information are speech within the meaning of the First
Amendment”].)
Martinez contends section 2076 infringes this right by
prohibiting bail licensees from receiving information about
arrestees. Martinez’s characterization of section 2076 is not
quite accurate; the regulation does not, as she would have it,
7
This is because Martinez raises what we might call a
“typical facial attack.” (United States v. Stevens (2010) 559 U.S.
460, 472.) In the First Amendment context, courts have
recognized another “ ‘type of facial challenge,’ whereby a law
may be invalidated as overbroad if ‘a substantial number of its
applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.’ ” (Stevens, at p. 473.) But
as we have noted, Martinez does not press that sort of First
Amendment overbreadth challenge in this court. (See fn. 5,
ante.)
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
directly forbid any particular exchange of information. Section
2076 instead forbids “arrangement[s]” (or “understanding[s]”)
between bail licensees and jail inmates (among others) to inform
or notify the licensees about arrests, while expressly exempting
information about particular arrestees that is sought or
disclosed via public records requests. (§ 2076.) In other words,
as the Court of Appeal correctly explained, the regulation
forbids both formally binding contracts and less formal
agreements to share arrest information. (Martinez, supra, 59
Cal.App.5th at pp. 298–299.) The regulation does not prohibit a
bail licensee from seeking or receiving such information,
“provided the information is not being conveyed pursuant to a
prohibited arrangement or understanding” with an incarcerated
person or other prohibited informant. (Id. at p. 306.) All the
same, at least for purposes of this case, the Attorney General
does not dispute that the prohibition on notification
arrangements “implicates the First Amendment-protected
rights of commercial bail agents,” and we therefore assume
without deciding that the regulation warrants scrutiny under
the First Amendment.8
The next question concerns the standard of scrutiny we
should apply in evaluating the constitutionality of the
regulation. On this subject, Martinez and the Attorney General
disagree sharply. While Martinez argues that section 2076
should be subject to strict scrutiny — the most exacting form of
8
The Attorney General has not argued, and we thus do not
address, whether the speech-related burdens of section 2076’s
prohibition on notification arrangements can be considered
incidental to the state’s regulation of commercial activity. (See
Sorrell, supra, 564 U.S. at p. 567 [“[T]he First Amendment does
not prevent restrictions directed at commerce or conduct from
imposing incidental burdens on speech”].)
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
constitutional review — the Attorney General argues for a far
less demanding standard appropriate to a regulation that
applies to (1) commercial activity (2) in a jail setting.
Collectively, the parties invoke essentially every possible
standard of First Amendment review, ranging from the most
demanding possible standard to the least. We address the two
extremes before we turn to the intermediate standard the Court
of Appeal applied in the decision below.
Emphasizing that this case concerns the class of
prohibited arrangements involving incarcerated individuals,
the Attorney General first argues that we should review section
2076 under the standard for reviewing constitutional challenges
to jail and prison regulations set out in Turner v. Safley (1987)
482 U.S. 78. This standard is highly deferential; under Turner,
courts generally must uphold such regulations if they are
“reasonably related to legitimate penological interests.” (Id. at
p. 89.) The Attorney General asserts that section 2076 is
reasonably related to multiple legitimate interests in sound jail
administration and safety. For one thing, the Attorney General
contends, the prohibited arrangements are typically
compensated in cash or in kind, which allows inmates to profit
from their incarceration by “steer[ing] business toward a
particular bail bond firm.”9 The Attorney General argues that
9
Martinez is correct that the payment of compensation is
not a necessary element of a section 2076 violation. But the
Attorney General notes, and common sense would also suggest,
that a bail licensee’s “ ‘arrangement’ or ‘understanding’ ” with a
jail inmate to obtain information about recent arrests will often
involve some form of consideration from the bail licensee,
whether monetary or in kind. (See also Cal. Dept. of Insurance,
Recommendations for California’s Bail System (Feb. 2018) p. 6
[noting results of a multiyear investigation in Santa Clara
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
such business arrangements with outside commercial entities
“erode the deterrent and retributive value of incarceration” —
at least for those jail inmates who are serving sentences
following conviction for a crime.10 For this reason, courts have
long upheld restrictions on commercial activity inside prisons.
(See, e.g., French v. Butterworth (1st Cir. 1980) 614 F.2d 23, 24
[“a prisoner has no recognized right to conduct a business while
incarcerated”]; see also, e.g., King v. Federal Bureau of Prisons
(7th Cir. 2005) 415 F.3d 634, 636 [citing cases]; Stroud v. Swope
(9th Cir. 1951) 187 F.2d 850, 851 [prisoner had no constitutional
right to conduct business concerning the publication of books he
had authored].)
More generally, the Attorney General argues that
business arrangements between bail bond agents and jail
insiders can threaten jail security by “promot[ing] inmate
rivalries and even violence.” The Attorney General cites a 2017
investigation by the Santa Clara County District Attorney’s
Office, which found that inmates involved in the prohibited
arrangements would threaten or pressure other inmates to sign
contracts with certain bail agents and would retaliate against
inmates working for rival bail firms. (See Lewis, Inside Santa
County “uncovering schemes by bail agents to scoop business
away from competitors by rewarding jail inmates with money
added to their jail accounts for providing information about
newly booked individuals in the jails”].)
10
Although pretrial detention arguably does not serve any
retributive purpose, the Attorney General points out that jails
in California also frequently house convicted inmates, who
might be in a position to provide information about recently
arrested pretrial detainees. (See Pen. Code, § 4002, subd. (a)
[authorizing jail to group together “persons . . . detained for trial
[and] . . . persons convicted and under sentence” for certain
purposes, including “supervised activities and . . . housing”].)
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Clara Jails, Predatory Bail Schemes Flourished for Years (Apr.
10, 2017) KQED <https://www.kqed.org/news/11393155/inside-
santa-clara-jails-predatory-bail-schemes-fluorished-for-years>
[as of August 24, 2023].) The Attorney General also points to a
2014 report by the New Jersey Commission of Investigation
finding that aggressive competition among inmates retained by
competing bail firms created dangerous conditions within New
Jersey correctional facilities, particularly when the bail firms
recruited rival prison gangs to drum up business. (See State of
N.J., Com. of Investigation, Inside Out: Questionable and
Abusive Practices in New Jersey’s Bail-Bond Industry (2014)
pp. 12–13 <https://dspace.njstatelib.org/xmlui/bitstream/
handle/10929/33879/i622014k.pdf> [as of August 24, 2023].)
Given these dangers, the Attorney General argues, we should
defer under Turner to the Insurance Commissioner’s judgment
that notification arrangements between jail inmates and bail
bond agents should be prohibited.
Although the Attorney General is undoubtedly correct
that section 2076 implicates matters of jail administration and
security insofar as it applies to arrangements between bail
licensees and incarcerated persons, it is not clear whether
Turner supplies the right lens for viewing the constitutionality
of the regulation. The rationale underlying the Turner test is
based on the “considerable deference” owed “to the
determinations of prison administrators who, in the interest of
security, regulate the relations between prisoners and the
outside world.” (Thornburgh v. Abbott (1989) 490 U.S. 401, 408;
id. at p. 407 [noting the “expertise of these officials” and
emphasizing the need to “be[] sensitive to the delicate balance
that [they] must strike between the order and security of the
internal prison environment and the legitimate demands of
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Opinion of the Court by Kruger, J.
those on the ‘outside’ who seek to enter that environment” in
some way].) Section 2076 was not, however, promulgated by a
prison or jail administrator; it was promulgated by the
Insurance Commissioner as part of a broader slate of bail
industry regulations directed at licensed bail bond agents. The
regulations do not directly target the conduct of inmates in any
of their applications. (As we have noted, the regulation
prohibits bail bond agents from entering a variety of
arrangements with both incarcerated and nonincarcerated
persons — only some of which could directly affect the internal
environment of the jail.) It is questionable whether we should
afford Turner deference to a regulation with these features.11 In
11
The Attorney General cites cases from other jurisdictions
indicating that Turner deference is not exclusively reserved for
the judgments of jail and prison officials and applies, for
instance, to statutory jail and prison regulations enacted by
legislatures. None of the Attorney General’s cases, however,
involves circumstances comparable to this case, where the
regulation in question was promulgated by a commercial
regulator to govern the conduct of nonincarcerated commercial
actors. (Cf., e.g., Mass. Prisoners Ass’n v. Acting Governor
(Mass. 2002) 761 N.E.2d 952, 955 [challenge to an executive
order directing the state corrections department to prohibit
political fundraising in state prisons, pursuant to a state
statute]; Waterman v. Farmer (3d Cir. 1999) 183 F.3d 208, 211
[challenge to a state statute prohibiting access to “ ‘[s]exually
oriented material’ ” in a correctional facility for treatment of sex
offenders, which the court construed in light of implementing
regulations by the state corrections department]; Amatel v. Reno
(D.C. Cir. 1998) 156 F.3d 192, 196, 202 [challenge to a federal
statute banning use of Bureau of Prisons funds to distribute
sexually explicit material to prisoners, which the court
construed in light of implementing regulations by the Bureau of
Prisons]; Matthews v. Morales (5th Cir. 1994) 23 F.3d 118, 119
[challenge to a state statute barring convicted felons from
changing their names].)
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
any event, for the reasons that follow, it is unnecessary for us to
do so now in order to take adequate account of the range of
governmental interests implicated by the application of section
2076 to notification arrangements with persons incarcerated in
a jail.12
Venturing to the opposite pole from deferential Turner
review, Martinez argues that section 2076 should be subject to
strict scrutiny because it regulates speech on the basis of its
content. (See, e.g., Barr v. American Assn. of Political
Consultants (2020) __ U.S. __, __ [140 S.Ct. 2335, 2346].) Under
high court precedent, restrictions on speech are considered
content-based if they “target speech based on its communicative
content” — that is, “if a law applies to particular speech because
of the topic discussed or the idea or message expressed.” (Reed
v. Town of Gilbert (2015) 576 U.S. 155, 163; see City of Austin,
Texas v. Reagan National Advertising of Austin, LLC (2022)
__ U.S. __, __ [142 S.Ct. 1464, 1471].) The parties do not dispute
that section 2076 is content-based in this sense; to the extent
12
Martinez also argues that Turner is inapplicable because
it governs only the constitutional claims of convicted inmates
and not the claims of pretrial detainees. Courts have not,
however, generally distinguished between the two types of
claims in applying the Turner test. (See, e.g., Florence v. Board
of Chosen Freeholders of County of Burlington (2012) 566 U.S.
318, 330 [stating that the case, which involved searches of
arrested persons held in jail pretrial, is “governed by the
principles announced in Turner”]; Bull v. City and County of San
Francisco (9th Cir. 2010) 595 F.3d 964, 974, fn. 10 (en banc) [“We
have never distinguished between pretrial detainees and
prisoners in applying the Turner test, but have identified the
interests of correction facility officials responsible for pretrial
detainees as being ‘penological’ in nature.”].) In any event, we
need not resolve that issue here; as explained below, we will
assume without deciding that intermediate scrutiny applies.
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Opinion of the Court by Kruger, J.
section 2076 burdens speech, it does so on the basis of the topic
discussed — namely, information concerning arrestees. As a
general rule, the high court has held that noncommercial
content-based restrictions “are presumptively unconstitutional
and may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests.” (Reed, at
p. 163.) Courts engage in this demanding form of scrutiny “to
ensure that communication has not been prohibited ‘merely
because public officials disapprove the speaker’s views.’ ”
(Consolidated Edison Co. v. Public Serv. Comm’n (1980) 447
U.S. 530, 536, quoting Niemotko v. Maryland (1951) 340 U.S.
268, 282 (conc. opn. of Frankfurter, J.); see also Reed, at p. 174
(conc. opn. of Alito, J.) [“Content-based laws merit th[e]
protection [of strict scrutiny] because they present, albeit
sometimes in a subtler form, the same dangers as laws that
regulate speech based on viewpoint. Limiting speech based on
its ‘topic’ or ‘subject’ favors those who do not want to disturb the
status quo. Such regulations may interfere with democratic
self-government and the search for truth.”].)
There are, however, several exceptions to the general
presumption that content-based restrictions are
unconstitutional. (See, e.g., Fallon, Sexual Harassment, Content
Neutrality, and the First Amendment Dog That Didn’t Bark
(1994) Sup. Ct. Rev. 1, 23; Ralphs Grocery Co. v. United Food &
Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083,
1113–1114 (conc. opn. of Liu, J.).) Commercial speech
constitutes one such exception. As the high court has explained,
“ ‘commercial speech [enjoys] a limited measure of protection,
commensurate with its subordinate position in the scale of First
Amendment values,’ and is subject to ‘modes of regulation that
might be impermissible in the realm of noncommercial
17
PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
expression.’ ” (Board of Trustees, State Univ. of N.Y. v. Fox
(1989) 492 U.S. 469, 477.) Commercial speech restrictions —
which not infrequently target speech based on its
communicative content — are instead subject to “ ‘intermediate’
scrutiny . . . under the framework set forth in Central
Hudson[, supra, 447 U.S. 557].” (Florida Bar v. Went For It, Inc.
(1995) 515 U.S. 618, 623.)
The Attorney General argues that if the prohibition on
notification arrangements is not subject to deferential review
under Turner, the regulation aims at speech that is inextricably
bound up with traditional regulation of commercial activity and
thus at most should be subject to intermediate scrutiny, not
strict scrutiny. To the extent that section 2076 impinges on a
protected speech right, we agree with the Attorney General that
intermediate scrutiny is the more appropriate standard.
The Attorney General’s argument in this regard relies
heavily on cases addressing the contours of the commercial
speech doctrine. As the Court of Appeal in this case correctly
observed, this case differs from many of those cases in that it
does not involve restrictions on advertising or solicitation — at
least, not directly. (See Martinez, supra, 59 Cal.App.5th at
pp. 304–305; see also, e.g., Va. Pharmacy Bd. v. Va. Consumer
Council (1976) 425 U.S. 748, 761–770 [prohibition on
advertising prescription drug prices]; Central Hudson, supra,447 U.S. at pp. 563–566 [prohibition on promotional advertising
by a utility]; Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525,
553–554 [restrictions on the sale, promotion, and labeling of
tobacco products]; 44 Liquormart, Inc. v. Rhode Island (1996)
517 U.S. 484, 501–504 [prohibition on advertising liquor
prices].)
18
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Opinion of the Court by Kruger, J.
But while the commercial speech doctrine has most
commonly been applied to such restrictions, the doctrine is not
so limited. “Although commercial speech is often described as
‘speech proposing a commercial transaction’ [citation], the high
court has also referred to commercial speech more broadly as
‘expression related solely to the economic interests of the
speaker and its audience’ (Central Hudson, supra, 447 U.S. at
p. 561).” (Beeman v. Anthem Prescription Management, LLC
(2013) 58 Cal.4th 329, 352 (Beeman).) Exploring the high court’s
guidance, we held in Beeman that the commercial speech
doctrine applied to a law requiring prescription drug claims
processors to transmit a report on pharmacy fees to their clients.
(Ibid.) We explained that although the required report does not
“ ‘propose[] a commercial transaction between the speaker . . .
and its audience,’ ” that “does not necessarily mean the report is
not commercial speech.” (Ibid.) We cited several factors in
support of the conclusion that the statute was, in fact, a
commercial speech regulation. The statute, we explained,
“operates in a commercial setting [and] prescribes a specific
communication that a business entity must make to its clients”;
the communication in question is “related to the economic
interests of prescription drug claims processors and their
clients”; and the communication is “ ‘ “ ‘linked inextricably’ ” ’ ”
to commercial transactions within the government’s power to
regulate “ ‘to prevent commercial harms.’ ”13 (Beeman, at p. 352,
13
Although we determined that the reports concerned only
“ ‘commercial speech,’ ” we concluded that labeling them as such
“does not dispositively determine” the applicable level of
scrutiny. (Beeman, supra, 58 Cal.4th at p. 353.) We observed
that the challenged law did not “impede the free flow of
commercial information”; rather, the law enhanced the flow of
19
PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
quoting Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 955.) Other
courts have focused on similar factors to reach similar
conclusions about laws operating outside the narrow context of
marketing and advertising restrictions. (See, e.g., Greater
Philadelphia Chamber v. City of Phila. (3d Cir. 2020) 949 F.3d
116, 136–137 [applying the commercial speech framework to a
city ordinance prohibiting employers from inquiring into a
prospective employee’s wage history in the process of setting or
negotiating that employee’s wage]; see also Yim v. City of Seattle
(9th Cir. 2023) 63 F.4th 783, 799–801 (conc. opn. of Wardlaw, J.)
[concluding that a city ordinance prohibiting landlords from
inquiring into the criminal history of current and prospective
tenants regulates commercial speech]; id. at p. 809 (conc. & dis.
opn. of Gould, J.) [agreeing that the regulated speech is
commercial in nature].)
A related line of cases has applied an intermediate level of
scrutiny, akin to a commercial speech inquiry, to regulations
restricting sales of customer data. That line of cases begins with
Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 472 U.S.
749, 751 (Dun & Bradstreet), in which the high court considered
the First Amendment interests at stake in a defamation action
against a credit reporting agency that circulated a report
containing false information about a business’s financial
position. (Dun & Bradstreet, at p. 751 (plur. opn. of Powell, J.).)
commercial information by compelling disclosure of data that
was relevant to the market participants. (Id. at p. 354.)
Because “the free speech interests implicated by compelled
disclosure of ‘purely factual and uncontroversial information’
are ‘substantially weaker than those at stake when speech is
actually suppressed,’ ” we held that rational basis review was
appropriate under California’s free speech clause. (Id. at
p. 356.)
20
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Opinion of the Court by Kruger, J.
The high court “recognized that not all speech is of equal First
Amendment importance” and noted that “[i]t is speech on
‘ “matters of public concern” ’ that is ‘at the heart of the First
Amendment’s protection.’ ” (Id. at pp. 758–759, quoting First
National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 776.)
Evaluating the “ ‘content, form, and context’ ” of the credit
report “ ‘as revealed by the whole record’ ” (Dun & Bradstreet, at
p. 761), the high court concluded that the report contained
speech on matters of purely private concern and therefore
warranted reduced constitutional protection (id. at pp. 762–
763). Specifically, the high court reasoned that the credit report
“was speech solely in the individual interest of the speaker and
its specific business audience”; that special protection for such
credit reporting was not necessary to ensure that “ ‘debate on
public issues [will] be uninhibited, robust, and wide-open’ ”; and
that, like similarly profit-driven commercial speech, credit
reporting was “unlikely to be deterred by incidental state
regulation.” (Id. at p. 762.)14
Relying on Dun & Bradstreet, the D.C. Circuit has
declined to apply strict scrutiny to regulations that prohibit the
sale of certain consumer information for purposes of targeted
marketing. (Trans Union Corp. v. F.T.C. (D.C. Cir. 2001) 245
F.3d 809, 818 (Trans Union I) [reasoning that marketing lists
containing information about individual consumers and their
credit performance warrant reduced constitutional protection];
14
Two other Justices joined Justice Powell’s plurality
opinion. Chief Justice Burger and Justice White concurred in
the judgment only, but both agreed with the plurality that the
speech at issue did not concern matters of public importance and
thus did not warrant special constitutional protection. (See Dun
& Bradstreet, supra, 472 U.S. at p. 764 (conc. opn. of Burger,
C. J.); id. at p. 774 (conc. opn. of White, J.).)
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Opinion of the Court by Kruger, J.
Trans Union LLC v. F.T.C. (D.C. Cir. 2002) 295 F.3d 42, 52–53
(Trans Union II) [same, suggesting that the regulations
burdened only commercial speech]; see also U.S. West, Inc. v.
F.C.C. (10th Cir. 1999) 182 F.3d 1224, 1232–1233 [applying
Central Hudson intermediate scrutiny to regulation limiting the
ability of telecommunications carriers to share customer
information]; National Cable & Telecoms. Ass’n v. F.C.C. (D.C.
Cir. 2009) 555 F.3d 996, 1000–1001 [same, where all parties
agreed that the regulated speech was commercial in nature].)
All of these cases suggest that, to the extent a protected
speech right is implicated here, intermediate rather than strict
scrutiny is the more appropriate standard. Like the regulations
at issue in Trans Union I, Trans Union II, and related cases,
section 2076 operates in a commercial setting: It places limits
on arrangements for the sharing of information about a class of
consumers (here, inmate-consumers of bail services) with
commercial actors seeking to profit from that information. Such
communications are directly and solely related to the economic
interests of the agents: Early access to information identifying
potential clients enables the licensee to achieve a competitive
advantage over other bail bond agents in soliciting business.
And much as in Beeman, the communications at issue are
“linked inextricably” to commercial bail bond transactions that
are subject to extensive governmental regulation, including an
extensive governmental licensing regime. (Beeman, supra, 58
Cal.4th at p. 352; see McDonough v. Goodcell, supra, 13 Cal.2d
at p. 743.) Assuming that section 2076 restricts the protected
speech rights of bail bond agents, it is not the type of restriction
22
PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
that warrants the most exacting standard of constitutional
review.15
Martinez resists this conclusion. She argues that
regardless of the economic interests at stake, strict scrutiny is
appropriate because section 2076 regulates the content of
noncommercial speech concerning a matter of public concern,
namely, the identity of persons the state has arrested. There is
no question that information about arrests is of great public
concern. But to regulate the specific type of notification
arrangement at issue — between jail inmates and bail bond
agents — is not to prevent the speech of those who want to speak
out about arrests or other important criminal justice issues.
Martinez contends that section 2076 “criminalizes the free
communication about important public facts” by preventing not
just bail licensees but also arrestees, those who seek bail
services on their behalf, and the public from receiving
information about who the state has arrested. This is incorrect:
The regulation is directed at the conduct of “bail licensee[s]”
(§ 2076); it does not regulate the conduct of any other person.
Moreover, section 2076 prohibits only the transmission of arrest
information pursuant to a bail licensee’s “arrangement” or
“understanding” with a jail insider. Nothing in the regulation
prohibits bail licensees from obtaining that information through
other means available to the general public. Indeed, the
15
This conclusion is consistent with Sorrell, supra, 564 U.S.
552, in which the high court employed what it described as “a
special commercial speech inquiry” to evaluate the
constitutionality of a state law that restricted the sale,
disclosure, and use, for marketing purposes, of pharmacy
records that revealed the prescribing practices of individual
doctors. (Id. at p. 571; see id. at pp. 571–572, citing, inter alia,
Central Hudson, supra, 447 U.S. 557.)
23
PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
California Public Records Act requires state and local law
enforcement to publicly disclose information about recent
arrests upon request (Gov. Code, § 6254, subd. (f)(1); County of
Los Angeles v. Superior Court (1993) 18 Cal.App.4th 588, 595),
and section 2076 explicitly permits the bail licensees to request
the public records of specific inmates. In short, section 2076 is
much more limited than Martinez suggests: It focuses on the
transmission of information about arrestees to commercial
actors, for a commercial purpose, pursuant to an “arrangement”
or “understanding,” and not on the dissemination of arrestee
information more generally.
For these reasons, we reject Martinez’s arguments for
strict scrutiny. As previously noted, however, we need not
definitively decide whether intermediate scrutiny or a lesser
standard should apply. We assume without deciding that
intermediate scrutiny applies and, for the reasons below, hold
that, considered on its face, section 2076 survives that
heightened standard.
III.
The intermediate scrutiny inquiry under Central Hudson
consists of a multipart test for evaluating whether a restriction
on commercial speech unconstitutionally infringes freedom of
speech. At the threshold, we must determine whether the
speech concerns lawful activity and is not misleading. (Central
Hudson, supra, 447 U.S. at p. 566.) Assuming that threshold is
met, the state must show that the regulation is supported by a
“substantial” governmental interest; that the regulation
“directly advances the governmental interest asserted”; and
that the regulation “is not more extensive than is necessary to
serve that interest.” (Ibid.)
24
PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
As a threshold matter, there is no dispute that section
2076 regulates the transmission of expression that neither
relates to unlawful activity nor is misleading. Section 2076
prohibits arrangements to share information about recent
arrests, even when that information is accurate, and regardless
of whether the arrangement is meant to facilitate unlawful
conduct (for example, direct solicitation of inmates in violation
of Cal. Code Regs., tit. 10, § 2079.1). Accordingly, the state bears
the burden to demonstrate that the regulation is narrowly
tailored to advance a substantial governmental interest.
There is also no dispute that the government’s asserted
interests in the regulation are substantial. We agree. First, the
Attorney General contends that section 2076 advances the
state’s interest in promoting “sound, secure jail administration.”
We have little trouble concluding that this interest is
substantial for purposes of Central Hudson; our cases have
emphasized the importance of the state’s interests in
“ ‘preserv[ing] internal order and discipline’ ” and
“ ‘maintain[ing] institutional security’ ” in the jail and prison
environment. (In re Jenkins (2010) 50 Cal.4th 1167, 1175,
quoting Bell v. Wolfish (1979) 441 U.S. 520, 547; see also People
v. Dolezal (2013) 221 Cal.App.4th 167, 174 [“orderly and
efficient jail administration” is a substantial state interest].)
Second, the Attorney General argues that section 2076 furthers
the state’s interest in promoting “fair competition in the bail
bond industry.” We conclude that this interest is also
substantial. Long ago, we recognized that the “bail bond
business is such a business as is subject to reasonable regulation
under the police power of the state” and noted the Legislature’s
determination that “abuses” in the industry required “that there
be some public supervision” of the field. (McDonough v.
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
Goodcell, supra, 13 Cal.2d at p. 746.) And in cases concerning
other professionals, like lawyers and accountants, the high court
has recognized that the state has compelling and important
interests in licensing and regulating the practice of the
professions and in maintaining standards of ethical conduct in
those fields. (Florida Bar v. Went For It, Inc., supra, 515 U.S. at
p. 625; Edenfield v. Fane (1993) 507 U.S. 761, 770.) Bail bond
agents are licensed professionals who are “an integral part of
the criminal justice system,” and we conclude that the state has
a similarly substantial interest in establishing rules for fair
competition in the industry and ensuring that bail bond agents
operate in an “honest and professional manner.” (Dolezal, at
p. 174.)
Martinez’s main contention is that section 2076 does not
directly advance the interests asserted by the state. The Court
of Appeal agreed with her on this point. Although the court
briefly acknowledged the state’s argument that section 2076
promotes fair competition and sound jail administration
(Martinez, supra, 59 Cal.App.5th at pp. 307–308), the court
focused its analysis on a narrower state interest — “preventing
unlawful, predatory solicitation of arrestees” (id. at p. 311). The
court “assume[d] that section 2076 might indirectly deter
unlawful solicitation of arrestees,” but reasoned that “an
indirect effect is not enough to survive judicial scrutiny.” (Id. at
p. 313.) Because, in the court’s view, the state had not
demonstrated that section 2076 “directly and materially
advance[d] the state’s substantial interests,” the court
concluded that the state had “failed to carry its burden.”
(Martinez, at pp. 312, 313.)
By focusing narrowly on whether section 2076 would
prevent bail bond agents from engaging in unlawful solicitation,
26
PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
the Court of Appeal failed to account for the full range of
governmental interests at stake. California Code of
Regulations, title 10, section 2076 is not merely an ancillary
regulation designed to bolster the prohibitions on predatory
solicitation practices found in California Code of Regulations,
title 10, section 2079.1 (prohibiting direct solicitation of
arrestees) and Penal Code section 160 (prohibiting the
employment of unlicensed jail inmates to conduct direct
solicitation). Section 2076’s prohibition on notification
arrangements with current inmates aims primarily at other
purposes: It is designed to serve the state’s interest in sound,
secure jail administration and to prevent the sort of corruption
and unfair competition in the bail bond industry more generally
that prompted the creation of the current system of bail bond
regulation. (See Martinez, supra, 59 Cal.App.5th at p. 315 (dis.
opn. of Grover, J.).)
Under United States Supreme Court precedent, we may
consult “history” and even “ ‘simple common sense’ ” to
determine whether a speech regulation advances substantial
government interests under Central Hudson. (Florida Bar v.
Went For It, Inc., supra, 515 U.S. at p. 628.) The historical
record, recent experience, and common sense all confirm that
section 2076 directly and materially advances the interests the
state has identified here. By prohibiting arrangements with
inmates that “facilitate the wholesale identification of people
with imminent bail needs” (Martinez, supra, 59 Cal.App.5th at
p. 315 (dis. opn. of Grover, J.)), section 2076 prevents bail bond
businesses from developing insider information networks within
jails and prisons that would give them an unfair “first mover”
advantage in the bond services market. As Martinez
acknowledges, bail bond businesses would benefit from this first
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
mover advantage even if they engaged in strictly lawful
solicitation — for example, of an arrestee’s family members (see
Cal. Code Regs., tit. 10, §§ 2079, 2079.1), who are likely to be in
a particularly vulnerable position and liable to engage the
services of the first bail bond agent to reach out directly. With
section 2076 in place, bail bond businesses cannot compete
based on the speed with which they can procure inside
information about arrestees and reach those vulnerable
consumers; instead, they must seek the arrest information from
publicly available arrest reports or wait to receive a bona fide
request for bail services from the arrestees, their families, or
their designated representatives. (See Cal. Code Regs., tit. 10,
§ 2079.1.) As the Attorney General explains, section 2076
thereby encourages more “legitimate forms of competition,” such
as competition on “price, scope, and quality of services.”
The history behind the Bail Bond Regulatory Act shows
how these types of insider arrangements enabled certain firms
to gain monopolistic control over bail in the regions where they
operated.16 Before the Act’s passage, public attention focused,
16
In recounting the history behind the Act and describing
more recent examples of the prohibited notification
arrangements, the Attorney General’s briefs rely on materials
such as newspaper and journal articles and government
reports that are not formally part of the evidentiary record.
Martinez has not objected to our consideration of those
materials, and at oral argument, Martinez’s counsel expressly
agreed that we can consider the materials as an aid to our
interpretation of the law. (See, e.g., Cabral v. Ralphs Grocery
Co. (2011) 51 Cal.4th 764, 776, fn. 5 [“In determining de novo
what the law is, appellate courts routinely consider materials
that were not introduced at the trial, including publications
containing expressions of viewpoints and generalized
statements about the state of the world. These are considered
28
PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
in particular, on abuses by one of the first for-profit bail bond
businesses in the United States, the McDonough Brothers Bail
Bond Brokers. (Barnes, “Fountainhead of Corruption”: Peter P.
McDonough, Boss of San Francisco’s Underworld (1979) 58 Cal.
History 142, 151–152.) The public learned that the McDonough
Brothers had “monopolized the bail bond business in San
Francisco” by developing a system for acquiring insider
information about the bail needs of recent arrestees. (Barnes,
at p. 145.) “Besides stationing functionaries of the firm at local,
state, and federal courts, the McDonough organization created
a remarkable network of informants” — including police officers
who “provided daily lists of who had been arrested, the charges,
and the bail set” — and even set up radios that connected the
prisons and jails to the McDonough offices. (Id. at p. 146.) The
firm reportedly used the information it acquired to quickly
solicit business from recent arrestees and secure release orders
from the city’s superior court judges. (Ibid.) A 1937 report
following an investigation into citywide corruption — the
“Atherton Report” — found that the McDonough Brothers had
developed a “virtual ‘corner’ on the [b]ail bonds business” by
“ ‘freez[ing] out’ ” its competition and noted that the firm had
used the wealth, influence, and police connections that it had
acquired through that business to expand into the city’s other
vice trades, like prostitution, gambling, and bootlegging.
(Report to the 1937 Grand Jury on Graft in the San Francisco
not as a substitute for evidence but as an aid to the court’s work
of interpreting, explaining and forming the law.”]; Kasler v.
Lockyer (2000) 23 Cal.4th 472, 482–483, 485–487 [relying on
newspaper articles describing, among other things, the details
of mass shootings and legislative negotiations in evaluating the
state interests involved in a constitutional challenge to
California’s assault weapons ban].)
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
Police Department, reprinted in S.F. Chronicle (Mar. 17, 1937)
p. F2, col. 4; see also Barnes, at pp. 146–147.) According to news
reports of the time, bail bond businesses across the state
engaged in similar abusive practices, recruiting police officers to
notify them of recent arrests in exchange for a share of the bail
premium and using that information to charge exorbitant bond
fees from friends or relatives of the arrestees. (See, e.g., Bail
Bondsmen Facing Inquiry, L.A. Times (June 25, 1941) p. 23.)17
These abusive practices, among others, led to the passage of the
Bail Bond Regulatory Act and, later, to the Insurance
Commissioner’s promulgation of regulations like section 2076
that are still in force today. (See, e.g., Bills to End M’Donough’s
Rule Signed, S.F. Examiner (July 3, 1937) p. 1; MacDonald, 48
Stringent Rules Set Up By Caminetti, S.F. Chronicle (Dec. 8,
1941) p. 29.)
Recent reports indicate that these practices continue to
undermine fair competition in the industry, with deleterious
effects on the internal jail and prison environment. For
example, the Court of Appeal took judicial notice of the
Insurance Commissioner’s 2018 report titled Recommendations
for California’s Bail System, which emphasized the need to
improve oversight and regulation of the bail industry to protect
vulnerable bail consumers. (See Martinez, supra, 59 Cal.
App.5th at p. 311, fn. 13.) The report noted that recent
investigations had uncovered “schemes by bail agents to scoop
business away from competitors by rewarding jail inmates with
money added to their jail accounts for providing information
about newly booked individuals in the jails.” (Cal. Dept. of
17
See also Bail Bondsmen Activities Probed, San Pedro
News-Pilot (June 24, 1941) p. 2; Bail Broker Control Bill in
Assembly, Oakland Tribune, supra, at p. 5.
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
Insurance, Recommendations for California’s Bail System,
supra, at p. 6.) Those investigations found that the schemes
undermined the security conditions within the jail because the
inmates recruited to provide such information would frequently
threaten or pressure other inmates to engage the services of
certain bail bond firms and would retaliate against those
working for rival businesses. (See Lewis, Inside Santa Clara
Jails, Predatory Bail Schemes Flourished for Years, supra,
KQED.) Other states have grappled with similar problems
arising from similar notification arrangements. (See, e.g., State
of N.J., Com. of Investigation, Inside Out: Questionable and
Abusive Practices in New Jersey’s Bail-Bond Industry, supra, at
pp. 12–13.) By prohibiting such schemes, section 2076 directly
serves the state’s substantial interests in avoiding such adverse
consequences.
Finally, we must consider whether section 2076 is “more
extensive than is necessary to serve” those substantial
governmental interests. (Central Hudson, supra, 447 U.S. at
p. 566.) This step of the analysis requires that there be a “ ‘ “fit”
between the legislature’s ends and the means chosen to
accomplish those ends,’ [citation] — a fit that is not necessarily
perfect, but reasonable.” (Board of Trustees, State Univ. of N.Y.
v. Fox, supra, 492 U.S. at p. 480.) Unlike strict scrutiny,
intermediate scrutiny does not require the Legislature to choose
the “least restrictive means,” so long as the means are “narrowly
tailored to achieve the desired objective.” (Ibid.; Florida Bar v.
Went For It, Inc., supra, 515 U.S. at p. 632.)
As applied to arrangements with jail inmates, section
2076 is narrowly tailored because it prohibits only the very
“arrangement[s]” or “understanding[s]” that have led to the
unfair competitive practices and jail administration issues
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PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
identified by the Attorney General. As we have already
explained (see pp. 10–11, ante), Martinez overstates the scope of
section 2076 when she contends that the regulation prohibits
bail licensees from receiving information about recent arrests.
Instead, while the regulation does forbid both formal and less
formal arrangements between licensed bail bond agents and
inmates about the sharing of arrest information, bail licensees
are free to obtain that information through public records
requests or any other publicly available source.
Moreover, Martinez is incorrect when she argues that
other provisions — like California Code of Regulations, title 10,
section 2079.1, which prohibits bail licensees from directly
soliciting arrestees who have not requested their services, and
Penal Code section 160, which prohibits bail licensees from
employing inmates to solicit arrestees on the licensees’ behalf —
suffice to address the governmental interests at stake. In
making this argument, Martinez repeats the error of the Court
of Appeal, which failed to appreciate that California Code of
Regulations, title 10, section 2076 addresses distinct harms to
fair competition and secure jail administration that can arise
from even lawful solicitation practices that capitalize on
asymmetric access to information about new arrestees.
In sum, our opinion today assumes without deciding that
section 2076 burdens a protected speech right. To the extent it
does, we hold that intermediate, rather than strict, scrutiny
applies, and that section 2076 passes muster. The Court of
Appeal erred in concluding that the People had failed to make a
sufficient showing that section 2076 directly advances the
state’s interests. The court’s analysis focused narrowly on the
question whether the regulation would deter the unlawful
solicitation of arrestees. Its attention thus diverted, the court
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Opinion of the Court by Kruger, J.
failed to consider other substantial interests at stake —
interests that the regulation is, in fact, narrowly drawn to
advance. Martinez’s facial challenge to the regulation therefore
fails.
We emphasize that our conclusion is limited to the facial
validity of the regulation. A litigant mounting a facial challenge
bears a formidable burden to demonstrate the regulation’s
invalidity in “at least ‘ “the generality” ’ [citation] or ‘vast
majority’ ” of cases. (Today’s Fresh Start, Inc. v. Los Angeles
County Office of Education, supra, 57 Cal.4th at p. 218.) This is
an “exacting” standard (ibid.) — understandably so, because the
consequence of facial invalidation is to undo the work of the
political branches of government, without regard to the
circumstances of the case at hand (Washington State Grange v.
Washington State Republican Party (2008) 552 U.S. 442, 450–
451). Our decision, however, does not foreclose future as-applied
challenges to section 2076 — either to applications of the law to
inmate arrangements that might, under the circumstances of a
particular case, raise distinct constitutional concerns, or to
arrangements with other groups of informants. Although
Martinez has not prevailed in her argument for invalidating
section 2076 on its face, our holding today leaves open the
possibility that other litigants may raise more particularized
challenges.
33
PEOPLE v. MARTINEZ
Opinion of the Court by Kruger, J.
IV.
We reverse the judgment of the Court of Appeal and
remand for further proceedings consistent with this opinion.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
34
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Martinez
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 59 Cal.App.5th 280Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S267138
Date Filed: August 24, 2023
__________________________________________________________
Court: Superior
County: Santa Clara
Judge: Socrates Peter Manoukian
__________________________________________________________
Counsel:
Law Office of John Rorabaugh, John Mark Rorabaugh; and Lori A.
Quick, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Michael J. Mongan,
State Solicitor General, Lance E. Winters, Chief Assistant Attorney
General, Janill L. Richards, Principal Deputy State Solicitor General,
Jeffrey M. Laurence, Assistant Attorney General, Samuel T. Harbourt,
Deputy State Solicitor General, René A. Chacón and Julia Y. Je,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
John Mark Rorabaugh
Law Office of John Rorabaugh
801 Parkcenter Drive, Suite 205
Santa Ana, CA 92705
(714) 617-9600
Samuel T. Harbourt
Deputy State Solicitor General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3919