Pressley v. Lucas

• Citation: 30 Mich.App. 300,186 N.W.2d 412
• Decision Date: 10 February 1971
• Docket Number: Docket No. 9992,No. 1,1
• Parties: Kenneth PRESSLEY, for himself and all those similarly situated, Petitioner-Appellant, v. William LUCAS, Sheriff of Wayne County, his officers and agents, Defendants-Appellees
• Court: Court of Appeal of Michigan (US)

Page 412

186 N.W.2d 412

30 Mich.App. 300

Kenneth PRESSLEY, for himself and all those similarly situated, Petitioner-Appellant, v. William LUCAS, Sheriff of Wayne County, his officers and agents, Defendants-Appellees.

Docket No. 9992.

Court of Appeals of Michigan, Division No. 1.

Feb. 10, 1971.

Released for Publication April 30, 1971.

Robert L. Reed, Asst. Director, Michigan Legal Services Assistance Program, Detroit, for petitioner-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Rheo C. Marchand, Asst. Pros. Atty., Ronald Sogge, Asst. Corp. Counsel, Detroit, for defendants-appellees.

Before LEVIN, P.J., and BRONSON and O'HARA, ^* JJ.

LEVIN, Presiding Judge.

The plaintiff, Kenneth Pressley, commenced this action in the Wayne County Circuit Court claiming that he and other persons similarly situated had been deprived of the right to post bail under the 10% Bail deposit act. ¹ Under that act, persons accused of committing traffic offenses and misdemeanors may post bail by depositing 10% Of the amount of the bail set by the court and signing a bail bond.

Judges of the traffic and ordinance division of the Recorder's Court of the City of Detroit take the position that they may deny particular offenders the benefit of the 10% Bail deposit act by requiring that they furnish a surety bond. They have instructed the sheriff of Wayne County, William Lucas, to refuse to accept 10% Deposits in those cases where a judge has stipulated that a surety bond be furnished.

After a hearing the circuit judge entered an order directing Sheriff Lucas to release Pressley upon his depositing the 10% And signing the bail bond. However, he refused to extend his order to include others 'similarly situated'. Pressley appealed in the interest of the class.

We hold:

1. The 10% Bail deposit act confers upon persons charged with the commission of traffic offenses and misdemeanors the right to post bail by depositing 10% Of the amount of the bail, and precludes judges and others authorized to set bail from requiring that persons accused of such offenses furnish a surety bond.

2. The 10% Bail deposit act does not infringe unconstitutionally upon inherent judicial power and, until the Supreme Court in the exercise of its exclusive power to control practice and procedure rules otherwise, the provisions of the act govern.

3. The circuit judge should have extended the relief granted Pressley to the others in the class similarly situated.

I.

Our statute is modeled on a 1963 Illinois statute. ² A study of bail practices in the municipal court of Chicago had revealed that in the year 1962 professional bondsmen wrote bonds of $18,513,965, on which they were entitled to receive fees of $1,851,396 (10% Of the bonds). The total amount of forfeitures collected from bondsmen in that year was $183,938, I.e., approximately 10% Of the fees collected. ³

The essence of the Illinois plan is that the accused person is allowed to deposit the 10% He would pay to the bondsman with the court at the time he executes the bond. If he complies with the conditions of the bond, there is to be returned to him 90% Of the amount deposited--the average gross profit after forfeitures of the bondsmen; the remaining 10% Is retained by the court. Since forfeitures in 1962 were 10% Of the gross bond fees, the 10% Retainage would, it was thought, produce revenue equal to the revenue received from forfeitures.

The Illinois plan was adopted on an experimental basis for two years. Although the ultimate objective of the plan was the elimination of professional bondsmen, during the two-year experimental period compensated sureties were permitted to continue to operate. The Illinois plan was successful in both reducing the jail population and in providing a fund (the 90% To be returned to the accused person) out of which fines and other expenses of litigation could be paid; there was no attendant increase in jumps or forfeitures; and, principally because more accused persons were able to make bail, the 10% Retainage produced more revenue than had been received from forfeitures. ⁴

In 1965 the Illinois legislation was made permanent and, by amendment, the provisions of the act were made 'exclusive of other provisions of law for the giving, taking, or enforcement of bail' thereby eliminating compensated sureties altogether in criminal cases. ⁵ Since 1965 professional bondsmen have been unable to operate in Illinois. ⁶

The Michigan statute, adopted in 1966, follows the Illinois statute verbatim, except (a) the Michigan statute is not exclusive, professional compensated sureties have not been prohibited; (b) the Michigan statute applies only to traffic offenses or misdemeanors while the Illinois statute applies to all offenses, including major felonies; ⁷ (c) in Michigan the minimum amount of the 10% Bail deposit is $10, in Illinois it is $25; ⁸ (d) under the Michigan act the entire 10% Deposit is required to be returned if the accused person is not convicted ⁹ while under the Illinois act only 90% Is returned even if the accused person is acquitted. ¹⁰

The remedial purpose of the act is apparent. ¹¹

II.

In this case Kenneth Pressley was charged with the offense of operating a motor vehicle without an operating permit in violation of a City of Detroit ordinance. ¹² He pled not guilty when arraigned on July 2, 1970 and bail was set at $50, one surety. His trial date was set for September 22, 1970, 81 days after the arraignment. The maximum penalty upon conviction of the offense is 90 days or a fine of $500, or both. ¹³ Thus, if Pressley could not obtain a surety bond and was not permitted to post a 10% Deposit, he would be required, while awaiting trial, to serve a sentence substantially equal to the maximum prison sentence the court could impose upon conviction.

It appears that professional sureties are generally unwilling to write small bonds because they are unprofitable--10% Of $50 is $5. In this context, it is manifest that the effect of imposing a one-surety requirement and of directing the clerk of the court and the sheriff to refuse to accept a 10% Deposit is to deny bail altogether to precisely those persons intended to be benefitted by the 1966 legislation--economically disadvantaged, minor offenders. (No doubt, bondsmen make exceptions and go surety on some small bonds, but that must be small comfort to the larger group who are unable to obtain this accommodation.)

In People ex rel. Gendron v. Ingram (1966), 34 Ill.2d 623, 217 N.E.2d 803, the Supreme Court of Illinois rejected a challenge to the constitutionality of the Illinois act. It held that § 15 of the Illinois act (making that act exclusive of other provisions and thereby, in effect, barring compensated sureties in criminal cases) did not unconstitutionally discriminate against defendants in criminal cases because civil litigants who are required to post bond can continue to post a surety bond. The Court further held that the provision of the Illinois act, corresponding to § 7 of our act, permitting, in lieu of the 10% Deposit, the furnishing of a bail bond with or without sureties, secured by a deposit of cash or stocks and bonds equal in value to the amount of the bail or unencumbered real estate equal in value of twice the amount of the bail, ¹⁴ was constitutional and that the complaining surety company must deposit security for the full amount of the bail. ¹⁵

The Court declared:

'Requiring a bond with sufficient sureties is premised on the assumption that economic loss to the accused, his family or friends, will assure his appearance for trial. In actual practice, however, it is not the accused or his family who usually suffer the loss for nonappearance, but the professional bondsmen and insurance companies. If the accused employs a professional bondsman or insurance company to make his bond, he is required to pay the bond premium Regardless of his appearance or nonappearance at trial. Hence, the economic loss deterrent loses force when an accused is admitted to bail with professional sureties, and the purpose of admitting persons to bail is frustrated.

'Experience has shown that the method of allowing a person to make bond with a professional surety does not accomplish the purpose of bail. (See Bowman, The Illinois Ten Per Cent Bail Deposit Provision, 1965 Ill.L.Forum 35.) The legislature in section 110--8 has determined more is needed than the mere ability to pay bail bond forfeitures on a business basis. See Committee Comments, Smith-Hurd Ill.Anno.Stat. pp. 145--149. We are of the opinion that the alternative methods of bail provided in sections 110--7 ¹⁶ and 110--8 ¹⁷ do not violate the constitutional provision that all persons shall be bailable by 'sufficient sureties'.' People ex rel. Gendron v. Ingram, Supra, p. 626, 217 N.E.2d p. 806. (Emphasis by the Court.)

The Michigan act, like the Illinois act, makes no provision for uncollateralized surety bonds. ¹⁸ We are satisfied that the plain meaning of the 10% Bail deposit act is that the 10% Deposit shall be the preferred means by which traffic offenders and misdemeanants furnish bail. Alternatively, they may, if they wish, 'in lieu' of the 10% Deposit, furnish a collateralized bond with or without sureties. It is completely inconsistent with the statutory scheme for a judge or other officer authorized to set bail to require a surety bond instead of a bond filed under the act. The act preserves to the judge the power to set the amount of bail, but deprives him of the power to prescribe the form of the bond or the security for its performance.

The Michigan legislature made perfectly clear its intention that those who set bail may not by indirection defeat the 10% Deposit plan when in 1969 it amended the 1966 act to provide that the amount of bail shall be 'uniform whether the bail bond be executed by the person for whom bail...