State ex rel. Sylvester v. Neal ex rel. Fox
| Decision Date | 08 July 2014 |
| Docket Number | Nos. 2012–1742,2013–0364.,s. 2012–1742 |
| Citation | 14 N.E.3d 1024,140 Ohio St.3d 47,2014 Ohio 2926 |
| Parties | The STATE ex rel. SYLVESTER v. NEAL, Clerk. The State ex rel. Fox et al. v. Walters, Clerk, et al. |
| Court | Ohio Supreme Court |
Patrick L. Cusma, Canton, for relator Anthony Sylvester.
Sprankle Carpenter, L.L.C., and Kendra L. Carpenter, Columbus, for relators Woodrow L. Fox and Woody Fox Bail Bonds, L.L.C.
Daniel R. Lutz, Wayne County Prosecuting Attorney, and Nathan R. Shaker, Assistant Prosecuting Attorney, for respondent Tim Neal.
Kenneth Oswalt, Licking County Prosecuting Attorney, and Amy Brown Thompson, Assistant Prosecuting Attorney, for respondents Licking County Clerk of Court Gary Walters, Licking County Common Pleas Court Judges David Branstool and Thomas Marcelain, and the Licking County Common Pleas Court.
Wesp/Barwell, L.L.C., Gregory P. Barwell, and Quinn M. Schmiege, Dublin, urging granting the writs, for amici curiae American Bail Coalition, Accredited Surety & Casualty Company, ACIC, Allegheny Casualty Company, American Contractors Indemnity Company, American Surety, Bail USA, Financial Casualty & Surety, Inc., HCC Surety Group, International Fidelity Insurance Company, Lexington National Insurance Company, Sun Surety Company, and Universal Fire & Casualty Insurance Company.
Michael DeWine, Attorney General, and Kristopher J. Armstrong, Assistant Attorney General, urging denial of the writs for amicus curiae Attorney General.
{¶ 1} In these consolidated cases seeking writs of mandamus filed by relators, Anthony Sylvester (relator in case No. 2012–1742), Woodrow L. Fox, and Woody Fox Bail Bonds, L.L.C. (relators in case No. 2013–0364), against respondents, Wayne County Clerk of Courts Tim Neal (respondent in case No. 2012–1742), Licking County Clerk of Courts Gary Walters, Licking County Common Pleas Court Judges David Branstool and Thomas Marcelain, and the Licking County Common Pleas Court (respondents in case No. 2013–0364), we consider whether Crim.R. 46(A)(2) violates Article I, Section 9 of the Ohio Constitution. Additionally, we consider relator Woody Fox Bail Bonds' request for damages pursuant to R.C. 2731.11.
{¶ 2} Article I, Section 9 of the Ohio Constitution provides that, with certain exceptions, "[a]ll persons shall be bailable by sufficient sureties." But under Crim.R. 46(A)(2), a court is permitted to require a defendant to post 10 percent of the bail amount in cash. We hold that by permitting a court to require a 10 percent cash deposit on a defendant's bond, Crim.R. 46(A)(2) denies the constitutional right of defendants to be "bailable by sufficient sureties" and violates Article I, Section 9 of the Ohio Constitution.
{¶ 3} However, we decline to award damages to Woody Fox Bail Bonds. The clerk of courts and judges of the Licking County Court of Common Pleas have political-subdivision immunity. R.C. 2744.01 et seq. They were acting within the scope of their official responsibilities in setting and enforcing the bail under Crim.R. 46(A)(2).
{¶ 4} We therefore grant the requested writs of mandamus and deny damages.
{¶ 5} On December 7, 2011, Chris Nickolas, a bail bondsman and an employee of Sylvester's, appeared at the Wayne County Court of Common Pleas and attempted to post a $5,000 surety bond for defendant Shannon Rowe, in case No. 11–CR–0347. Nickolas was informed by a clerk in the office of respondent Tim Neal, the Wayne County clerk of courts, that he could not post a surety bond because Judge Mark Weist required a 10 percent cash deposit on a bail bond. Rowe's family had contacted Nickolas to post the $5,000 bond. Nickolas personally posted the $500 in cash for Rowe in the criminal case so that he could be released from jail. On numerous occasions, Sylvester, Nickolas, or other agents of Sylvester's company had been unable to post a bond with the Wayne County clerk of courts because bail had been set as a bond requiring a 10 percent cash deposit and the clerk's office refused to take a surety bond.
{¶ 6} Sylvester filed this action for a writ of mandamus on October 15, 2012, to compel Neal to accept surety bonds in all cases where bail is set by the court. Neal filed a motion to dismiss, to which Sylvester filed a memorandum in opposition. On February 6, 2013, the court granted the alternative writ, and the parties then filed evidence and briefs.
{¶ 7} Relator Fox is licensed to issue bail bonds and is the owner of relator Woody Fox Bail Bonds. He asserts that since 2010, the clerk of courts and judges of the Court of Common Pleas of Licking County have refused to accept surety bonds from Fox or his agents when the court had set the bail to include a 10 percent cash deposit on a bond. Fox retained an attorney to inquire about the matter, and the attorney, Gary Rosenhoffer, asked the Licking County prosecuting attorney about the issue. The prosecutor responded that he had contacted the court and had been told that the court was not planning to change its current practice.
{¶ 8} Fox and Woody Fox Bail Bonds filed this action for a writ of mandamus on March 4, 2013, to compel the clerk and judges of the Licking County Common Pleas Court to accept surety bonds in all cases where bail is set by the court and requesting damages pursuant to R.C. 2731.11.
{¶ 9} On May 22, 2013, we granted an alternative writ and consolidated the case with 2012–1742, and the parties then submitted evidence and briefs.
{¶ 10} To be entitled to extraordinary relief in mandamus, relators must establish a clear legal right to the requested relief, a clear legal duty on the part of the respondents to provide it, and the lack of an adequate remedy in the ordinary course of the law.
State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Relators must prove that they are entitled to the writ by clear and convincing evidence. Id. at ¶ 13.
{¶ 11} The right that relators assert, the right to be "bailable by sufficient sureties," found in Article I, Section 9 of the Ohio Constitution, belongs to a criminal defendant. However, we have held that a bail bondsman has a sufficient beneficial interest in nullifying a clerk's existing bond policy to bring a mandamus case. State ex rel. Jones v. Hendon, 66 Ohio St.3d 115, 119, 609 N.E.2d 541 (1993). Therefore, relators have standing to bring these mandamus actions.
{¶ 12} Relators also lack any adequate remedy in the ordinary course of the law, because a bail bondsman, as a nonparty, cannot petition the court for a bond modification and cannot appeal the denial of a surety bond. Unlike the criminal defendant, a bail bondsman's only remedy is an extraordinary writ.
{¶ 13} Lastly, the case is not moot, because the issue of requiring cash deposits is an ongoing one for the bail bondsmen, even though it may not be for an individual defendant.
{¶ 14} The remaining questions are whether relators have a clear right to the requested relief and whether respondents have a clear duty to grant them that relief.
R.C. 2937.22(A). Bail may take several forms, including cash and surety bond (the written assurance by one or more persons to forfeit the sum of money set by the court if the accused does not appear). Id.
{¶ 16} The sole purpose of bail is to ensure a person's attendance in court. State ex rel. Baker v. Troutman, 50 Ohio St.3d 270, 272, 553 N.E.2d 1053 (1990). Id.
{¶ 17} Surety bail-bond agents are regulated under the Department of Insurance and must be licensed by that agency to sell surety bail bonds. R.C. 3905.83 et seq. A "surety bail bond" is "a court accepted bond instrument from a licensed insurance company issued for or on behalf of an incarcerated person held under criminal charges." Ohio Adm.Code 3901–1–66(C)(3).
{¶ 18} In Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, we reviewed the history of the right to bail in Ohio, and we rely heavily on ¶ 18–51 of that opinion in the discussion that follows.
{¶ 19} Ohio's first Constitution provided in Article VIII, Section 12, that "all persons shall be bailable by sufficient sureties, unless for capital offenses, where the proof is evident or the presumption great" and provided in Article VIII, Section 13, that "[e]xcessive bail shall not be required." The 1851 Ohio Constitution moved these provisions to Article I, Section 9 :
All persons shall be bailable by sufficient sureties, except for capital offences where the proof is evident, or the presumption great. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.
The 1851 version of Article I, Section 9 remained effective until January 1, 1998. 1997 Sub.H.J.Res. No. 5, 147 Ohio Laws, Part IV, 9014, 9016.
{¶ 20} To implement the bail provisions, this court adopted Crim.R. 46 in 1973, which provided, before its amendment on July 1, 1998:
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