Thomas Ambro

A constitutional challenge to New Jersey’s Criminal Justice Reform Act by a bail bonds underwriter and a criminal defendant was rejected Monday by the U.S. Court of Appeals for the Third Circuit.

The appeals court, in a precedential ruling, said the plaintiffs were not entitled to a preliminary injunction halting implementation of the law.

The panel ruled that Lexington National Insurance Co. lacked standing to challenge New Jersey’s 2017 reform of its cash bail system. It also said that plaintiff Brittan Holland, who is under electronic monitoring while awaiting trial on an aggravated assault charge, does have standing to challenge the law, but failed to demonstrate a likelihood of success on his assertion that bail reform violates his rights under the Fourth, Eighth and 14th amendments of the U.S. Constitution.

Because of the procedural posture, the Third Circuit ruling does not bring an end to the litigation, but opens the door for the state to file a motion to dismiss.

According to the decision, Lexington National underwrites bail bonds in New Jersey, and acknowledged in court papers that its business in New Jersey has dwindled under the new law. Holland, a Sicklerville resident, was arrested in April 2017 and placed on home detention after he was charged for his involvement in a bar fight, the court noted.

Monday’s decision came after Holland and Lexington National appealed a ruling by U.S. District Judge Jerome Simandle that denied their application for a preliminary injunction to halt implementation of the bail reform law, which has been in effect since January 2017.  Judges Thomas Ambro, L. Felipe Restrepo and Julio Fuentes said Simandle correctly denied Holland’s motion for a preliminary injunction.

Simandle ruled that Lexington National lacks standing to bring a claim on its own behalf, or to bring a claim on behalf of third parties. Lexington National did not challenge the denial of first-party standing, but argued on appeal that it should be granted third-party standing to bring claims on behalf of criminal defendants on home detention and electronic monitoring because those individuals face obstacles in bringing claims.

Ambro, writing for the panel, rejected that assertion, finding that Holland “appears to have the unfettered ability” to pursue litigation.

Holland raised the issue of whether there is a federal constitutional right to deposit money or obtain a corporate surety bond to ensure a criminal defendant’s future appearance in court as an equal alternative to nonmonetary conditions of pretrial release.

The appeals court, affirming the judge below, said there is no such right. The panel rejected Holland’s reasoning that the revamped bail system violates the Fourth Amendment’s prohibition on unreasonable searches and seizures because home detention and monitoring intrude on his privacy and are not needed to promote the state’s legitimate interest. Ambro rejected Holland’s claim that placing an electronic monitor on a person and tracking his whereabouts necessarily constitutes a search and seizure, or that home detention is a seizure.

The appeals court conceded that home detention and wearing an electronic monitor are “at least somewhat intrusive” but found that the intrusion is “lessened by Holland’s reduced expectation of privacy.” When a person is arrested on probable cause for a dangerous offense, his expectations of privacy and freedom from police scrutiny are lessened, Ambro wrote.

The American Civil Liberties Union submitted an amicus curiae brief to the Third Circuit on behalf of itself, its New Jersey chapter, Drug Policy Alliance, Latino Action Network, and the National Association for the Advancement of Colored People.

“This important decision confirms what bipartisan lawmakers in New Jersey have known for years: there is no reason—legal or otherwise—why the thickness of anyone’s wallet should dictate their liberty and freedom,” Alexander Shalom, senior supervising attorney at the ACLU-NJ, said in a statement.

In a phone interview, Shalom added that the plaintiffs’ next steps might be to seek review by the entire court, or to ask the U.S. Supreme Court to take the case. But barring that, the state is likely to file a motion to dismiss the case, according to Shalom.

Both the District Court and the Third Circuit “have made it clear they don’t think there’s a ‘there’ there on the legal theory the bail industry has put forth,” that a defendant awaiting trial has the constitutional right to buy his freedom, Shalom said.

“I think the bail industry had an uphill battle before. They have a Sisyphean task now,” he said.

Jeff Clayton, executive director of a group called the American Bail Coalition, said in a statement, “While this challenge to New Jersey’s bail system has faced another hurdle, this case is far from over and may end up at the U.S. Supreme Court.  The Court of Appeals also noted that while there may be other viable challenges to the Bail Reform Act and the implementation of the Act, Plaintiff Holland was the wrong plaintiff to bring those challenges.”

Paul Clement of Kirkland & Ellis in Washington, D.C., who served as U.S. solicitor general under President George W. Bush, represented Holland and Lexington National before the Third Circuit. He did not return a call about the ruling. Co-counsel Michael Williams, also of Kirkland & Ellis, and local counsel Justin Quinn, of Robinson Miller in Newark, also did not return calls.

The state’s case was argued at the Third Circuit by Assistant Attorney General Stuart Feinblatt. A spokesman for the Attorney General’s Office, Lee Moore, declined to comment on the ruling or to address whether the state would next file a motion to dismiss.