In re Forfeiture

• Decision Date: 25 June 2014
• Docket Number: Calendar No. 1.,Docket No. 146033.
• Citation: 852 N.W.2d 747,496 Mich. 320
• Parties: In re BAIL BOND FORFEITURE.
• Court: Michigan Supreme Court

496 Mich. 320

852 N.W.2d 747

In re BAIL BOND FORFEITURE.

Docket No. 146033.

Calendar No. 1.

Supreme Court of Michigan.

Argued Oct. 8, 2013.

Decided June 25, 2014.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jason W. Williams, Assistant Prosecuting Attorney, for the people.

James J. Makowski for You Walk Bail Bond Agency, Inc.

Miller, Canfield, Paddock and Stone, PLLC, Detroit (by Clifford W. Taylor and Larry J. Saylor), for the American Bail Coalition.

MARKMAN, J.

This Court granted leave to appeal to address whether the trial court's failure to provide the appellant-surety notice within seven days of defendant's failure to appear, as is required by MCL 765.28, bars forfeiture of the bail bond posted by the surety. Relying on In re Forfeiture of Bail Bond (People v. Moore), 276 Mich.App. 482, 740 N.W.2d 734 (2007), the Court of Appeals held that a court's failure to comply with the seven-day notice provision of MCL 765.28(1) does not bar forfeiture of a bail bond posted by a surety. Because we conclude that Moore was wrongly decided, we hold that a court's failure to comply with the seven-day notice provision of MCL 765.28(1) does bar forfeiture of a bail bond posted by a surety. When a statute provides that a public officer “shall” undertake some action within a specified period of time, and that period of time is provided to safeguard another's rights or the public interest, as with the statute at issue here, it is mandatory that such action be undertaken within the specified period of time, and noncompliant public officers are prohibited from proceeding as if they had complied with the statute. Accordingly, we reverse the judgment of the Court of Appeals and vacate the trial court's orders to the extent that the orders forfeited the bail bond posted by the surety and ordered the surety to pay $50,000.

I. FACTS AND HISTORY

Defendant Corey Deshawn Gaston was charged with one count of first-degree home invasion, MCL 750.110a(2); two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a) and (2)(b); one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a); and one count of kidnapping, MCL 750.350. Appellant-surety posted a $50,000 bond to obtain defendant's release from jail. On February 7, 2008, defendant failed to appear at a scheduled conference, and on February 11, 2008, defendant failed to appear for trial. The trial court ordered that defendant be rearrested and remanded to jail and that his bond be forfeited. Three years later, on February 8, 2011, the trial court sent notice to the surety to appear to show cause why judgment should not enter for forfeiture of the full amount of the bond. In response, the surety filed a motion to set aside the forfeiture based on the trial court's failure to timely provide notice of defendant's failure to appear, as is required by MCL 765.28(1). Relying on Moore, the trial court denied the motion and entered a judgment against defendant in the amount of $150,000 and against the surety in the amount of $50,000.

The surety appealed in the Court of Appeals, arguing that the trial court's failure to provide it notice of defendant's failure to appear within seven days, as is required by MCL 765.28(1), should have barred the forfeiture of the surety's bond. The Court of Appeals, also relying on Moore, affirmed the trial court and held that the trial court's failure to provide the surety notice of defendant's failure to appear within seven days did not foreclose the court from entering judgment on the forfeited bond. In re Forfeiture of Bail Bond (People v. Gaston), unpublished opinion per curiam of the Court of Appeals, issued September 13, 2012 (Docket No. 305004), 2012 WL 4039663.

The surety then appealed in this Court, presenting the same argument that it had before the trial court and the Court of Appeals. This Court granted leave to appeal to address

(1) whether a court's failure to comply with the 7–day notice provision of MCL 765.28 bars forfeiture of a bail bond posted by a surety and (2) whether In re Forfeiture of Bail Bond (People v. Moore), 276 Mich.App. 482 (2007), holding that the 7–day notice provision is directory rather than mandatory, was correctly decided. [In re Forfeiture of Bail Bond (People v. Gaston), 493 Mich. 936 (2013).]

Defendant is still at large and is currently identified as one of the United States Marshals' fifteen most wanted fugitives.¹

II. STANDARD OF REVIEW

Questions of statutory interpretation are questions of law that are reviewed de novo. Martin v. Beldean, 469 Mich. 541, 546, 677 N.W.2d 312 (2004). Questions relating to the proper interpretation of court rules are also questions of law that are reviewed de novo. People v. Burns, 494 Mich. 104, 110, 832 N.W.2d 738 (2013).

III. ANALYSIS

MCL 765.28(1) provides in pertinent part:

If default is made in any recognizance in a court of record, the default shall be entered on the record by the clerk of the court. After the default is entered, the court shall give each surety immediate notice not to exceed 7 days after the date of the failure to appear. The notice shall be served upon each surety in person or left at the surety's last known business address. Each surety shall be given an opportunity to appear before the court on a day certain and show cause why judgment should not be entered against the surety for the full amount of the bail or surety bond. If good cause is not shown for the defendant's failure to appear, the court shall enter judgment against the surety on the recognizance for an amount determined appropriate by the court but not more than the full amount of the bail, or if a surety bond has been posted the full amount of the surety bond. If the amount of a forfeited surety bond is less than the full amount of the bail, the defendant shall continue to be liable to the court for the difference, unless otherwise ordered by the court. [Emphasis added.]

MCR 6.106(I)(2) provides in pertinent part:

If the defendant has failed to comply with the conditions of release, the court may issue a warrant for the arrest of the defendant and enter an order revoking the release order and declaring the bail money deposited or the surety bond, if any, forfeited.

(a) The court must mail notice of any revocation order immediately to the defendant at the defendant's last known address and, if forfeiture of bail or bond has been ordered, to anyone who posted bail or bond. [Emphasis added.]

In this case, there is no question that the trial court failed to provide the surety notice within seven days after the date of defendant's failure to appear, as is required by MCL 765.28(1), or provide the surety notice of the revocation order “immediately,” as is required by MCR 6.106(I)(2). The question at issue is whether this failure to provide the required notice bars forfeiture of the bail bond posted by the surety. Both the trial court and the Court of Appeals relied on Moore, 276 Mich.App. at 495, 740 N.W.2d 734, in concluding that the failure to provide notice does not bar such a forfeiture.

In Moore, the trial court entered a judgment against the surety even though the trial court had not timely notified the surety, and the Court of Appeals denied leave to appeal. This Court remanded to the Court of Appeals for consideration as on leave granted. In re Forfeiture of Bail Bond (People v. Moore), 474 Mich. 919, 705 N.W.2d 350 (2005). On remand, the Court of Appeals affirmed the trial court and held that “ ‘ “[t]he general rule is that if a provision of a statute states a time for performance of an official duty, without any language denying performance after a specified time, it is directory.” ’ ” Moore, 276 Mich.App. at 494–495, 740 N.W.2d 734, quoting People v. Smith, 200 Mich.App. 237, 242, 504 N.W.2d 21 (1993), quoting 3 Sutherland, Statutory Construction (5th ed), § 57:19, pp. 47–48. Relying on this “general rule,” the Court of Appeals held that “the seven-day notice provision of MCL 765.28(1) is directory, not mandatory” and therefore concluded that “[d]espite the trial court's six-month delay in notifying [the surety] of [defendant's] failure to appear, ... the statute did not prevent the trial court from entering judgment against [the surety] on the forfeited surety bond.” Moore, 276 Mich.App. at 495, 740 N.W.2d 734.

The Court of Appeals' decision in Moore was not appealed in this Court, and therefore this is the first opportunity for this Court to consider whether Moore was correctly decided. For the reasons that follow, we conclude that it was not. To begin with, Moore gave only passing consideration to the “general rule” that “ ‘[s]hall’ is a mandatory term, not a permissive one.” People v. Francisco, 474 Mich. 82, 87, 711 N.W.2d 44 (2006); see also Fradco, Inc. v. Dep't of Treasury, 495 Mich. 104, 114, 845 N.W.2d 81 (2014) (“The Legislature's use of the word ‘shall’ ... indicates a mandatory and imperative directive.”); 3 Sutherland, Statutory Construction (7th ed.), § 57:19, pp. 75–76 (“Generally, when the word ‘shall’ is used in referring to a time provision, it should be construed to be mandatory.”).

Along similar lines, Moore failed to recognize the consequence of the fact that the Legislature amended MCL 765.28(1) in 2002, changing “may” to “shall.” See Fay v. Wood, 65 Mich. 390, 397, 32 N.W. 614 (1887) (recognizing that the significance of a statutory amendment changing “should” to “shall” is that the statute becomes “mandatory”). Prior to 2002, MCL 765.28(1) provided that the court “ may give the surety or sureties twenty days' notice.” (Emphasis added.) In 2002, the Legislature amended MCL 765.28(1) to provide that the court “ shall give each surety immediate notice not to exceed 7 days after the date of the failure to appear.” 2002 PA 659 (emphasis added). While the term “may” is permissive, not mandatory, Browder...