Bail bonding companies: do they get one call?

I love bail bonding cases. Having represented several bounty hunters and bail bondspersons over the years, I can tell you that they are their own breed of cat. (Did you think I’d say “dog”?)

The Fifth Circuit Court of Appeals decided this case yesterday. It concerns two bail bondsmen who challenged a Texas statute which restricts solicitation of potential customers. They argued that the statute denied their First Amendment rights. The district court agreed, and the court of appeals affirmed (for the most part). It’s an interesting decision for a couple of reasons. But a little background, first.

The Texas statute (Sec. 1704.109) empowers bail bond boards to regulate “solicitations or advertisements” by bail bonding companies to protect the public from “(A) harassment; (B) fraud; (C) misrepresentation; or (D) threats to public safety.” Subsection (b)(1) of that statute prohibits any solicitation regarding an outstanding warrant, unless the subject of the warrant is a previous customer. Subsection (b)(2) restricts the time of solicitation after arrest, prohibiting solicitation in person or by phone from 9:00 p.m. to 9:00 a.m., or within 24 hours after a person has been arrested, either with or without a warrant. The plaintiffs challenged these subsections.

On paper, the sticking point is simple: on the one hand, bail bonding companies want to contact potential clients early (it’s a competitive business, after all); on the other hand, Harris County wants to reduce “1) the flight risk for felony offenders and high-level misdemeanor offenders; 2) the risk of harm to officers, defendants, and bystanders when such defendants are arrested; 3) the risk of harm to victims, family members, or witnesses from retribution; and 4) the potential for destruction of evidence.” In reality, the legislature’s purpose in enacting § 109 was probably to hinder competition between large, affiliated bondsmen and independent bondsmen. Whatever the legislative intent, though, the Fifth Circuit held that the statute did not carry out the County’s interests above.
Two things make this ruling interesting. The first is federalism. As it happens, one of the plaintiffs is challenging Harris County’s version of Section 1704.109 (the county adopted a law similar to the state statute challenged here), and his challenge to that county law is pending in the Texas Supreme Court. The Fifth Circuit, however, did not wait for the supreme court to rule. Instead it stated that “the present case involves a central issue of federal constitutional law, and although we abstain from ruling on issues of Texas constitutional law, see Railroad Commission v. Pullman Co., 312 U.S. 496(1941), we rarely abstain from ruling on federal constitutional law.” That is the right ruling (IMHO), especially given the First Amendment stakes.
The second interesting aspect of the ruling concerns the requirement vel non of pre-enactment evidence to support a partial ban on commercial speech. The plaintiffs argued that only evidence created before enactment of § 1704.109 and relied upon or cited by the legislature in passing it can be considered under Central Hudson. Consequently, they argued, because the legislative record behind § 1704.109 is bare, it cannot survive scrutiny. Harris County disagreed, offering testimony and affidavits introduced in the district court. The Fifth Circuit sided with the county and held that Central Hudson does not require that evidence used to satisfy its strictures exist pre-enactment.
Some will find this second aspect problematic. For one, if I read the opinion correctly, the legislature has little incentive to honestly weigh evidence supporting the need for a speech-restrictive law if the legislature’s attorneys can do that job for them later when (if ever) the law is challenged in court. For another, the ruling creates a recipe for state and federal collision. If the state adopts a statute banning speech, and that ban is challenged in federal court, the federal government can entertain evidence about the governmental interest that was not before the state legislature. And that “trial evidence” may be what tips the scale in favor of upholding the statute. To me, post-hoc justification of a law doesn’t sit well because the First Amendment prohibits banning speech in the first instance. This is particularly true when the “evidence” supposedly shows the state legislature’s motives.

I wonder if the Dog agrees.
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