Ford, In re
| Decision Date | 19 February 1991 |
| Docket Number | Docket No. 115674,THIRTY-SIXTH |
| Citation | 468 N.W.2d 260,187 Mich.App. 452 |
| Parties | In re Brenda Joyce FORD, Real Party in Interest. WAYNE COUNTY PROSECUTOR, Plaintiff-Appellant, v.DISTRICT COURT JUDGE, Defendant-Appellee. 187 Mich.App. 452, 468 N.W.2d 260 |
| Court | Court of Appeal of Michigan — District of US |
[187 MICHAPP 452] John D. O'Hair, Pros. Atty., Andrea Solak, Chief, Sp. Operations, and Charles E. Grant, Asst. Pros. Atty., for plaintiff-appellant.
[187 MICHAPP 453] William R. McNamee and Barbara Bassett McIver, Detroit, for defendant-appellee.
Before DANHOF, C.J., and CAVANAGH and BEASLEY, * JJ.
In this case, we are asked to construe the bail provision of the Uniform Criminal Extradition Act (UCEA), M.C.L. Sec. 780.15; M.S.A. Sec. 28.1285(15). We hold, consistent with the majority of the jurisdictions which have addressed the issue, that once a governor has issued an extradition warrant and a fugitive is being held solely for purposes of extradition to another state under the UCEA, the fugitive has no right to bail, and the courts of this state have no power to grant bail.
On December 19, 1988, Detroit police officers, along with FBI agents, arrested Brenda Joyce Ford at a home in Detroit. Ford was wanted for a 1982 armed robbery in Birmingham, Alabama. She was taken into custody, and the defendant 36th District Court judge set bail at $20,000 or ten percent cash. On February 1, 1989, our Governor, after receiving a facially proper extradition demand from Alabama officials, issued an extradition warrant authorizing the delivery of Ford to agents of the State of Alabama. See M.C.L. Secs. 780.4-780.7; M.S.A. Secs. 28.1285(4)-28.1285(7).
On February 9, 1989, Ford moved for a continuance of her bail and sought an adjournment to permit her to request a hearing before the Governor's office to contest the issuance of the Governor's warrant. Defendant granted Ford's request for time to seek a Governor's hearing, but initially denied Ford's request for bail. However, another hearing was held later the same day, and defendant[187 MICHAPP 454] decided that the bail provision of the UCEA did not prohibit the granting of bail after the issuance of a Governor's warrant. The court therefore granted Ford's request to continue the $20,000 bail.
After the ruling, plaintiff brought a motion in the Detroit Recorder's Court, seeking review of defendant's bail decision under MCR 6.110(G)(1) (now MCR 6.106[G] ) or, in the alternative, a writ of superintending control under MCR 3.302. Plaintiff argued that once the Governor has issued an extradition warrant, the detained person is no longer entitled to bail under the extradition act. Plaintiff sought cancellation of Ford's bail and an order that she be remanded to jail to await extradition. On February 24, 1989, the Recorder's Court denied plaintiff's motion and alternative request for a writ of superintending control.
Plaintiff then brought a motion before this Court, seeking immediate consideration and review of the Recorder's Court bail decision under MCR 6.110(G)(2) (now MCR 6.106[G] ) or, again, a writ of superintending control. We granted plaintiff's motion for immediate consideration and ordered the parties to proceed to a full hearing on the merits in the same manner as in an appeal of right. MCR 7.206(D)(3).
On April 7, 1989, Brenda Joyce Ford was extradited to Alabama. This issue is, therefore, technically moot. However, we will decide the issue because it is of public significance and is likely to recur in the future, yet evade review. Contesti v. Attorney General, 164 Mich.App. 271, 278, 416 N.W.2d 410 (1987); People v. Wershe, 166 Mich.App. 602, 605, n. 1, 421 N.W.2d 255 (1988). We review the lower court's bail decision under the abuse of discretion standard. MCR 6.106(G)(4).
[187 MICHAPP 455] The bail provision of the UCEA, M.C.L. Sec. 780.15; M.S.A. Sec. 28.1285(15), states:
Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the governor of this state.
The narrow question presented in this case is whether bail is available under this provision once the Governor has issued an extradition warrant. The statute itself does not expressly answer the question. The statute clearly permits the granting of bail in an appropriate situation before the Governor issues a warrant. And a reasonable interpretation of the phrase "conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the governor of this state" is that the initial grant of bail is to be revoked once the Governor's warrant is issued. But the statute does not address whether bail may be reinstated, or granted anew, after the fugitive has been arrested on the Governor's warrant.
This question has not been addressed in any reported Michigan case, so we cannot look to the case law of this state. The only Michigan case that touched on the issue of bail in an extradition proceeding, In re Palmer, 138 Mich. 36, 100 N.W. 996 (1904), predated the Legislature's enactment of the uniform extradition act. In Palmer, the Court was called upon to decide the extent to which the courts may review the Governor's decision to issue [187 MICHAPP 456] an extradition warrant. The Court concluded that the courts have very restricted review power where a Governor's warrant is facially valid and the extradition demand is regular in all respects. To emphasize the limited role of the courts in this situation, the Palmer Court noted, inter alia, that "State courts are not permitted to hold to bail." Id., at p. 37, 100 N.W. 996.
This statement from Palmer supports the view that bail is not available once a Governor's warrant has been issued. However, as stated, Palmer was not construing the UCEA. Further, bail was not at issue there, so the Court's statement concerning bail was dicta. Thus, while Palmer supports our conclusion, it is not dispositive of this case.
Instead, we look to and follow the reasoning of the majority of our sister states that have addressed this precise issue. The majority and minority views on this issue were summarized in a recent Illinois case, Beauchamp v. Elrod, 137 Ill.App.3d 208, 92 Ill.Dec. 86, 484 N.E.2d 817 (1985). Illinois has adopted the UCEA, including the bail provision at issue here. Neither Michigan nor Illinois has altered the bail provision. The defendant in Beauchamp had argued, as does the defendant here, that he was entitled to bail even though the governor of that state had issued an extradition warrant. The court said:
A thorough review of case law in other States reveals that there is a minority and majority rule on this particular issue. The minority rule is that the right to bail continues even after issuance of the Governor's warrant. (See, e.g., Nebraska ex rel. Partin v. Jensen (1979), 203 Neb. 441, 279 N.W.2d 120; Carino v. Watson (1976), 171 Conn. 366, 370 A.2d 950; Ruther v. Sweeney (1956), 75 Ohio Abs. 385, 137 N.E.2d 292; Application of Haney (1955), 77 Idaho 166, 289 P.2d 945.) These courts reached their decision by reasoning that because courts [187 MICHAPP 457] have the inherent power to set bail the right continues even after issuance of the Governor's warrant. Plaintiff urges this court to adopt the minority rule and remand this case to the circuit court for the setting of reasonable bail.
The majority of the courts that have addressed this issue have determined that, absent statutory authorization, a defendant detained by a governor's warrant has no right to bail. (See, e.g., Deas v. Weinshienk (1975), 188 Colo. 17, 533 P.2d 496; State ex rel Howard v. St Joseph Superior Court (1974), 262 Ind. 367, 316 N.E.2d 356; State v. Second Judicial District Court (1970), 86 Nev. 531, 471 P.2d 224; In re Application of Amundson (1945), 74 N.D. 83, 19 N.W.2d 918; State v. Pritchett (1975), 12 Wash.App. 673, 530 P.2d 1348; In re Lucas (1975), 136 N.J.Super. 24, 343 A.2d 845; Balasco v. State (1974), 52 Ala.App. 99, 289 So.2d 666; Grano v. State (Del.Super.Ct.1969), 257 A.2d 768; Buchanan v. State ex rel Weiss (Fla.App.1964), 166 So.2d 596.) The rationale of these decisions is that because the fugitive is being held for another State he should be readily available to be turned over to those who arrive to return him. A presumption exists that the demanding State will accord the fugitive all his legal rights, including that of bail. Meechaicum v. Fountain (10th Cir.1983), 696 F.2d 790, 792.
The reasoning of the majority rule, we conclude, is best suited for that of extradition proceedings. As the supreme court has stated, the asylum state is an inappropriate forum in which to raise constitutional issues. (Sweeney v. Woodall (1953), 344 U.S. 86, 89-90, 97 L.Ed. 114, 118, 73 S.Ct. 139, 140-141.) Furthermore, it is more appropriate that the accused's right to bail be tested by the laws of the demanding State where he is charged with a crime, and not by the state which holds him solely for the purpose of rendition. (State v. Second Judicial District Court (1970), 86 Nev. 531, 538, 471 P.2d 224, 227.) [137 Ill.App.3d at 214-215, 92 Ill.Dec. 86, 484 N.E.2d 817.]
For additional cases following the majority rule, [187 MICHAPP 458] see Emig v. Hayward, 703 P.2d 1043, 1049-1050 (Utah, 1985); State ex rel Schiff v. Brennan, 99 N.M. 641, 662 P.2d 642 (1983); Bayless v. Wandel, 119 Misc.2d 82, 462 N.Y.S.2d 396 (1983); State v. Truman, 115 Ariz. 145, 564 P.2d 96 (1977). We note also that at least one state, Nevada, has altered...
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