*1 519 1979] for Justice v PRE-TRIAL JUSTICE GOLDFARB FOR CITIZENS 1978, February 16, at Detroit. 26827. Submitted Docket No. 20, Decided February1979. Justice, unincorporated, Plaintiffs, an Pre-Trial Citizens for individuals, association, filed a class nonprofit five named and doing defendants, against and Irwin Goldfarb Charles action Bonding Agency A. Mitchell and Carman business Goldfarb Agency. doing A. Mitchell Bail Bonds as Carman business illegal engaged alleged business defendants Plaintiffs by charging practices for bonds in excess of a fee bail statutory of the face amount and maximum fee of 10% fee, which, requiring alone or with the taken either collateral alleged that Plaintiffs further limit. exceeded 10% unilaterally provision allowing statutory revoke bondsmen unconstitutionally principal bail bond and rearrest process liberty law. deprived without due individuals of those merits, declaratory judgment sought Plaintiffs overcharges prevent permanent injunction and revo- future Court, Wayne George damages. E. Circuit and cations 1) Bowles, J., the intervention an which: allowed entered order [4, [2] [3, [1] 51 Am Jur 51 Validity, 5] 5 Am Jur 59 Am Jur 59 Am Jur 59 59 59 Am Jur bond business. 8 Am Jur 27 Am Jur Am Jur 8 8 Am Jur Am Jur Am Jur Am Jur Am Jur Am Jur Am Jur Am Jur construction, 2d, Appeal 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d; 2d, 2d, 2d, 2d, 2d, 2d, 2d, Equity References Limitation of Actions 4. Limitation Actions 103. Parties Parties §§ Parties Parties Parties Bail Bail and Bail and Bail and Bail and Bail Statutes 13 ALR3d 618. and and Error 966. 67.§ §§ § §§ 57.§ Recognizance Recognizance Recognizance Recognizance 81. § Recognizance Recognizance 51, 67, 69. 71-73. 69-71. 194. application Points § § § § §§ §§ §§ § §§ 57. Headnotes of statutes 57-59. 69. 68. 26. regulating bail 88 originally and substitution of four individuals for some named 2) plaintiffs; defined the class and certified the class action (holding potential plaintiffs, that there were numerous that the proper parties adequately four named individuals were *2 represented the absent class interests members’ and that there questiоns sought); were common of law and common relief and 3) preliminarily enjoined overcharging defendants from either summarily rearresting principal or a in connection with a bail posted Michigan appeal by bond in a criminal case. Defendants granted. leave Held: appropriate claiming 1. The statute of limitations for actions statutory overcharge right either a or denial of a constitutional three-year applicable damages is the statute to claims for for injuries persons property. to or 35,000 potential Michigan 2. A class of criminal defendants sufficiently who secured release on bail bonds is numerous to appropriate make a class action and the likelihood that group prove will unstable and its constituents’ whereabouts impracticable unknown is conclusive evidence that it would be bring plaintiffs to all before the court. proper who, persons 3. The class in this class action is all years filing complaint, purchased within three of the of the purchased bail bond from defendants or had a bail bond 1) paid them from and: defendants a fee in excess of of the 10% 2) amount; posted exceeding bond’s face or collateral of 10% 3) amount; paid posted the bond’s face or fees and collateral 4) exceeding amount, of the face or 10% whose bond was pursuant revoked to the statute. adequate representation spurious 4. For there to be in a class 1) representatives action: the must share common issues and 2) members, repre- interests with the unnamed class and the vigorously prosecute rights sentatives must the of the class through qualified counsel. process require 5. Due does not notice the absent class spurious members to a class action where the court has not given, exercised its discretion to order that notice be because rights the adjudicated, of absent class members will not be and may the substantive issues be decided without notice to' absent class members for the same reason. meaning limiting 6. The of the statute a bail fee bondsman’s unambiguous of the bond’s face 10% value is clear and cannot be construed to mean of the bondsman’s risk in an 10% greater instance where his risk is than the face value of the bond. taking 7. security by The of collateral as a bail bondsman part selling comprehended of the transaction of a bail bond is for Justice receiving accepting limiting charging, of by or the statute money property of face value of the bond. 10% private is a undertak- of the bail-bond contract essence imposing ing the bailed defendant between the bondsman and right ways; rights obligations running the bondsman’s both represents a recapture the bailed defendant and surrender and, undertaking, bal- significant on in the bondsman’s factor ance, process. is not violative of due part part, and remanded. Affirmed reversed in holding J., majority of the Cavanagh, M. F. dissents from right recapture and is essen- surrender bondsman’s issue, process. tially private right not of due On this violative that, weighing sifting the circum- he the facts would hold stances, furnishing emphasis exercise services or sovereign, power traditionally exis- associated with relationship symbiotic and the of a between the state tence approval practice private party and the overt or covert by state, power of bailed defendants bail rearrest the 14th state action and is violative of bondsmen constitutes enjoin the use of Due Process Clause. He would Amendment powers the rearrest of the bail bondsmen. of *3 Spurious — — Class Action. 1. Parties Class Action “spurious” may if the class mem- A class action be maintained rights sought are several there is a bers’ to be enforced question affecting rights law or the several common of fact sought, persons claimed to be a class are a common relief is bring impractical before so to make it to them all numerous as represent persons the class will the court and the who claim to (GCR representation 1963, 208.1[3]). fairly adequate insure its — — 2. Parties of Class Action Numerousness Class. 35,000 potential Michigan who A criminal defendants class of sufficiently to make secured release on bail bonds is numerous group appropriate a class likelihood that action and the prove and its unknown will unstable constituents’ whereabouts impracticable bring that it would be to conclusive evidence plaintiffs court. all before the Property — Injuries — 3. Limitation of or Actions to Persons — — Statutes Due Process. Constitutional Law allegation summary permitting revoca- An the statute bond unconsti- tion and of criminal results in an rearrest defendants process allegation injury deprivation to tutional of due is an of governed by three-year persons property statute or and is (MCL 27A.5805[7]). 600.5805[7]; of limitations MSA op Rights op — — — 4. Actions Statutes Limitation "Persons” Bail Bonds. statutory right charged percent A than be no more ten accruing by right person face a bail bond amount for is a to a being "person” eyes reason of of his the law as distinguished right аccruing by from a an individual reason peculiar by by of some status or of an interest virtue created infringement property, right contract and to or suits for of that (MCL applies 600.5805[7]; three-year statute limitations 27A.5805[7]). Injuries Property — — 5. Limitation Actions to Persons or Statutory Rights Rights. — — Statutes Constitutional appropriate claiming statute limitations for actions either overcharge statutory right or denial of a constitutional is the three-year applicable damages injuries for statute to claims persons property. Appeal Findings op — and Error Fact. Findings of fact made a trial not be court will set aside unless clearly erroneous. Spurious Rep- — — — Adequate 7. Parties Class Actions Action resentation. general requirements A court focuses on two reference (1) adequate representation spurious in a class action: representatives must share issues and common interests with members, (2) the unnamed class the court must be assured representatives vigorously prosecute rights will qualified through the class counsel. — Spurious — — 8. Constitutional Law Due Process Notice Class Action. process require Due does not notice to absent class members spurious in a class action has where the court not exercised its given, rights discretion to order that notice be because the adjudicated, absent class members will not be and the substan- may tive issues be decided without notice to the class absent members for same reason. *4 — Spurious — — 9. Parties Class Actions Class Actions Ade- op Representation. quacy allegation party The mere of a defense of a to a claim named to spurious party inadequate class action does not an render representative. for Justice — Statutory — Fee. 10. Statutes Bail Bondsman’s Construction meaning unambi- is clear and speaks where its for itself A statute limiting meaning a bail bondsman’s guous; of the statute the unambiguous clear and face value is of the bond’s fee to 10% risk of the bondsman’s to mean be construed 10% and cannot greater of than the face value risk is where his in an instance (MCL 28.364[2][3]). 750.167b[3];MSA the bond — Statutory — Fee. 11. Statutes Bail Bondsman’s Construction part security by of taking bondsman a bail of collateral as The by comprehended the selling bail bond is of the transaction money receiving charging, accepting limiting or of statute property value of the bond. to of the face 10% —(cid:127) — — Bail 12. Constitutional Process Due Law State Action Powers. Rearrest Bondsman’s appears purely to be Finding otherwise action in what state weighing sifting requires of facts and private conduct furnishing circumstances, services or emphasis sovereign, traditionally power associated with exercise relationship the state and symbiotic between of a the existence approval of the private party overt or covert and the principals state; powers of rearrest of practice by purposes the 14th action for constitute state bail bondsmen Amendment. — — —
13. Constitutional Process Bail Bonds- Due Law Statutes Rearrest Powers. man’s significantly person liberty on bail of a released interest rear- outweighs alternative interest in the current the state’s professional and the statute provided bondsmen rest method summarily power their granting rearrest bondsmen bail requirements process principals meet the due fails to XIV, 765.26; (US Const, MCL Am 14th Amendment 28.913). — Injunction — Equity. Criminal Conduct jurisdiction enjoin where Equity criminal conduct has person. injury property or threatens conduct op Brennan, V. J. Right — — 15. Bail of Rear- Bail Bondsman’s Private Nature — Process. rest Due undertaking private is a The essence of the bail-bond contract imposing defendant the bailed the bondsman and between right ways; running rights obligations the bondsman’s both *5 88 op Opinion Cavanagh, M. F. J. recapture represents surrender the defendant and bailed and, significant undertaking, factor the bondsman’s on bal- ance, process. is not violative of due Loria, Kelman, Downing, Simpson Schneider & Howes), Dodge, Robert W. and Peter (by for plain- tiffs. Zemke,
Norman L. for defendants Goldfarb. P.J., Before: D. E: and V. J. Brennan Holbrook, M. F. and JJ. Cavanagh, Plaintiffs, M. F. J. Citizens for Pre- Cavanagh, Justice, Trial an unincorporated, nonprofit associa- tion located in and Wayne County, five named individuals, November, filed class action in challenge legality practices the business of defendants-appellants Goldfarb and defendant Mitchell, agencies.1 owners bail bond Specifi- cally, plaintiffs alleged that defendants vio- 28.364(2)(3) 750.167b(3); lated MCL charg- ing a fee greater than the statutory maxi- 10% mum which, and by requiring collateral security fee, either taken alone or with the exceeded the limit. further They alleged provision 10% in MCL 765.26; MSA 28.913 allowing bondsmen to unilaterally revoke bail and bond rearrest principal unconstitutionally deprived such individ- uals of liberty without process due of law. The named plaintiffs also set forth facts show their interest in the suit and adequacy of their representation the proposed relief, As class. plaintiffs requested judgment on the declaratory Goldfarb, Plaintiffs sued Charles and Irwin d/b/a Goldfarb Bond ing Agency, and Cаrman Carman d/b/a Mitchell Bail A.^Mitchell, Agency, Bonds as defendants. Defendant Mitchell died while this pending joined appeal. action was has not and in this for Justice prevent permanent injunction entry merits, of a damages. overcharges revocations, and and further argument hearing raised all issues After complaint by motion,2 trial court opinion subsequently prepared an and entered (1) the intervention order allowed This order. originally for the four individuals substitution *6 (2) plaintiffs; and certified defined named appropriate holding was action class,3 that a class 208.1(3) potential 1963, in that under GCR plaintiffs individu- numerous, the four named were repre- adequately proper parties and were als interests, and class members’ the absent sented presented questions] of law” "common there were (3) preliminar- requested; and relief and a common ily enjoined overcharging from either defendants principal rearresting summarily connection or Michigan posted criminal in a a bail bond complex. history litigation procedural For the of this aspects purposes appeal, to be considered the most crucial of this of four other plaintiffs’ filed on behalf motions to intervene involve individuals to substitute certify plaintiffs, as named to define class, summary judgment. addition to In and for accelerated and motions, opposing moved for accelerated and these defendants also history summary judgment. will be more sion of this action The various details of this they pertinent fully in the discus become examined appeal. of the issues raised on proper The trial court defined the class as follows: purchased within from the defendant "A. All those who bail bond paid filing complaint years or fees or six posted from the date of of herein (10%) per totaling the face than ten cent of collateral more value of the bond written. posted in return for fees "B. All those for whom the defendant bond (10%) per of the of the face value and collateral in excess ten cent complaint filing posted years six from the date of bond within herein. paid purchased who fees or "C. All individuals who a bail bond and (10%) per posted totaling the face cent of collateral more than ten filing subsequent of the bill of to the value of the bond written complaint. purchased had them revoked "D. All individuals who bonds and the court filed November the revocation statute.” Order of under App 519 Opinion op from these find- appealed
case.4 Defendants have this order. ings entry and the The Class Action Issue contesting addition the merits of the decision, argue inappropri- court’s defendants permitting plaintiffs pursue ateness of explanation suit as a class action. A brief under brought characteristics of a class action 208.1(3) therefore to pro- GCR warranted vide an framework for discussion of appropriate the issues defendants raise. 208.1(3)
GCR
provides:
persons constituting
"If
a class are so numerous as to
impracticable
bring
it
make
court,
them all before the
them,
more,
fairly
such of
1 or
as will
insure the
adequate representation
may
of all
on behalf of all sue
right sought
or
enforced for or
sued when the character of the
be
to be
* * * several,
against
the class is
question
affecting
there is a common
law fact
rights
sought.”
several
and a common relief is
*7
The
aсtion
type of
authorized
the rule is com-
by
as a
monly
"spurious
known
class action”.
itsBy
terms, which have been
upon
elaborated
case
law,
the rule sets out several criteria
to
test
appropriateness
of allowing
particular
a
suit
to
(1)
The
of plain-
proceed
aas
number
class action.
tiffs holding similar
against
claims
a defendant.
Where this number
large
impracti-
is so
that
it is
cable to bring each claim individually,
"at
least
one
plaintiff
named
may represent
the class before
1975,
original
21,
enjoin
The
order of November
did not
defen
revoking
rearresting
principals
dants from
the bonds and
their
ac
cording
28.913,
765.2;
although
to MCL
it
the statute
did declare
acknowledged
unconstitutional. The court
an over
this omission as
sight,
supplemental
24, 1975, extending
opinion
and filed a
November
injunction
prohibit
practice.
to
this
Justice
F.
of M.
*
* *
litigate
issues common to
court and
against
Con-
the defendant”. Northview
claims
(On Rehearing), 399
Co v Clair Shores
St
struction
guise,
Defendants have failed that the class members "are so numerous show bring impracticable make it them all before Hence, contend defen- the court”. GCR 208.1. proceed dants, allowed to cause should not be as a class action. argument notwithstanding, esti
This defendants potential to be class members mate the number of persuade a class 35,000.5 This could us that alone *8 brief, p 11. Defendants’ 88 Mich of M. F. appropriate addition, note action is here. we group prove that will unstable and likelihood its further and conclusive evidence that impracticable unknown. This is constituents’ whereabouts
it would be
bring
plaintiffs
all
before the
Wayne County
Pressley
Sheriff,
court.
See
App 300, 319;
Deñnition of the Class Statute Limitations timely Defendants raised the affirmative defense of the statute of limitations. See GCR 111.7. During proceedings in the court lower this issue controversy proper was in the subsumed over the plaintiff definition of the class. Plaintiffs contended that the class should be defined to include all years those whose claims accrued within the six preceding complaint’s filing. Defendants re- sponded persons’ that some of those were claims by time-barred one or another statute of limita- plaintiffs’ tions. The lower court ruled in favor and encompassing certified a class all those whose years complaint claims arose within six before the challenge ruling. was filed. Defendants now argument Plaintiffs’ is in the alternative: their governed by six-year claims are either contract n 600.5807(8); limitations, statute MCL MSA 27A.5807(8), by general six-year statute personal provi- limitations for sion actions for which no statute, 600.5813; is made other MCL MSA 27A.5813. argue appropriate
Defendants that the statute overcharge statutory limitations for the claims of three-year is the damages statute for "actions to recover injuries persons property”. 27A.5805(7). 600.5805(7); MCL Defendants further assert the count based on unlawful *9 for Justice Opinion Cavanagh, F. J. of M. battery allegations assault, to arrest amounts two-year imprisonment, a stat- to which and false 600.5805(1); applies. MCL MSA of limitations ute 27A.5805G). joined in this com- three counts
Because the sepa- plaint different, I them will consider are all rately. argument
Initially, reject that the I defendants’ battery two-year assault, and false for statute alleging applies imprisonment to the count summary unconstitutionality revoca- bond permitted 765.26; 28.913. Plain- in MCL MSA tion alleges deprivation process complaint a of due tiffs’ permits deprivation by statutory a scheme which hearing, liberty a and for without notice and capricious injury arbitrary This reasons. battery, assault, nor a false an nor a neither imprisonment, one or more but the invasion of rights. there no statute of constitutional Since explicitly to for denial of limitations directed suits process, appropriate must be either due statute injuries three-year for statute on actions 600.5805(7); persons 27A.5805(7), property, MSA MCL general inapplicable, or, if this is personal six-year statute for all other actions for provision which made. MCL no is elsewhere 600.5813; MSA 27A.5813. scope have of "ac- Other cases considered the * * * injuries persons property”
tions
for
27A.5805(7).
600.5805(7);
used
MCL
Stringer
Spar-
v Board of Trustees of Edward W
Hospital,
App 696;
row
62 Mich
being
person
eyes
rights,
of the law. Such
course,
distinguished
are to be
from those which accrue
by
peculiar
by
to an
reason of some
status or
individual
property.”
of an
created
contract or
virtue
interest
omitted.)
(Citation
App
62 Mich
Stringer,
therefore, held
"injuries
persons
included an action for
"to
property”
injuries
good
one’s
name and to advancement
one’s
696, 702.
profession”.
chosen
*10
no
specifies
Where Federal
law
statute of limita-
action,
tions for
a Federal cause
the courts look
analogous
to the most
state statute of limitations.
A
Deprivation
Limitation on Actions for
See Note:
(1968).
of Federal
Rights,
68
L
763
Colum
Rev
Stringer
support
holding
found some
for
its
in
696,
Accord,
such Federal
62 Mich
701.
App
cases.
Glowacki v Motor Wheel
448,
Corp,
459-460;
I, too,
Mich, 1976), the court considered the issue of which statute applied limitations to a three- count action damages predicated for with claims 1983, 1985, on 42 USC the Fourteenth Amend- ment, and prosecution. malicious count,
As rights to the civil act the court exam- ined at some length the various Federal circuits’ divergent approaches con- question, cluded: 7
"It is clear from both Krum6 and Madison Sheppard, Mich, 1966), aff'd, (WD Krum v Supp 255 F 407 F2d (CA 1967). 6, Wood, (CA 1969). 6, Madison v 410 F2d 564 Justice of M. F. Michigan interprets the above-stated stat Sixth Circuit 600.5805(7); three-year ute 27A.5805(7)] statute of MCL [the mere broadly to include much more than persons physical injuries injury and more than an specific property. Appeals The Court of therein estab wrong alleged lished the rule that a under the Civil Rights wrong, Act is a constitutional and that such a Therefore, wrong personal in at nature. least regard originating Michigan, to such causes of action the Sixth Circuit has decided to abandon the Third approach looking wrongful underlying Circuit at the Rights act and will characterize all Civil Act causes as 'injuries person,’ applying state statute of analogous limitations most to such characterization.” Supp, (Emphasis changed, 415 F footnotes added.) Accord, Equal Employment Opportunity Comm 1975). (CA Co, v Detroit Edison 515 F2d wrong injury If a constitutional is an to the alleged person, process then the denial of due three-year the instant case would be within The Gordon court considered statute of limitations. the Fourteenth Amendment count stated apparent and, reluctance, case albeit with reached the same conclusion:
"Plaintiffs, however, incorporated in have also their complaint premised a count on a Fourteenth Amend- process through question ment due violation the federal *11 * * * statute, jurisdictional 1331. USC § "Although City Sixth Circuit Foster v. Detroit, accepted conditionally 405 F2d 138 city’s argument Michigan three-year that statute suits, applied question’ to such it found a 'federal continuing wrong to make which eliminated the need holding question. an ultimate on the limitations Court, however, "This must make such a determina- pro- Unfortunately tion. it knows of nо decision which guidance question. vides on this complaint, "In the context of this wherein a Four- question’ juxtaposed teenth Amendment 'federal App 88 all three counts are 1985 actions where § § facts, underlying this Court premised on the same apply a statute of it would be inconsistent believes ap- that different from limitations for the first count particularly so in plied to the latter two counts. This is 1985 actions derive this situation the 1983 and wherein process Amendment due alleged from the Fourteenth Court, therefore, apply the will also violation. The to Count I.” Michigan three-year statute of limitations Supp F holding limits the quoted language carefully a civil plaintiff pleads case also where Nevertheless, argu- there is no rights act count. a different support ment a conclusion that limitations would otherwise More- apply. statute of over, wrong” given analysis the "constitutional rights question which decision of the civil act upon based, the deci- certainly expect one would was process sions this and the due issue to be strength Accordingly, consistent. Gordon, supra, Stringer, supra, I would hold limitations, MCL three-year statute 600.5805(7); 27A.5805(7), civil applies MSA to this action for denial of due process. I
Turning overcharge, to the claim of statutory argument must reject plaintiffs’ six-year applies. statute of limitations for contract actions 27A.5807(8). 600.5807(8); MCL MSA Plaintiffs premise argument upon the rule that statutes in force at the time a contract is entered become Comm v De- Highway State part of contract. Controller, troit 337, 352; City 49 NW2d (1951). Thus, argument, runs the the statute setting charged the maximum for fee which can be (MCL 28.364[2][3]) 750.167b[3]; a bail bond Therefore, was a part plaintiffs of the contract. conclude, suit dеfen- damages incurred when *12 for Justice v Goldfarb Opinion Cavanagh, of M. F. J. dants governed violated the statute the con- tracts statute of limitations.
However, in the recent case of Huhtala v Travel- Co, ers Ins 126-127; 401 Mich NW2d (1977), Supreme Court it quite made clear that the contracts statute of limitations does not apply unless the action is for breach express prom- of an ise: origin "Where the nature and of an action to recover
damages
injury
persons
property
or
is a duty
law,
imposed by
this Court has held that
it cannot be
maintained
on a
theory
contract
when commenced
beyond
three-year period.
Hotels,
Coates v Milner
Inc,
233;
(1945),
Smith,
311 Mich
"* * *it makes no difference what form of action the
plaintiff
institutes
in seeking
damages
recovery for
property
person,
but
in all cases such action comes
within
3-year
limitation rule.”
State Mutual Cyclone Ins Co
A
v O & Electric
Cooperative,
324-325;
Mich
Again
proposed
I
turn to the test
*13
right
charged
supra. Surely
statutory
a
to be
no
percent
more than
of face value for a bail bond
ten
right
by
of
is a
"to which one is entitled
reason
right
being
person
eyes
law”, a
a
in the
"distinguished
an indi-
from those which accrue to
peculiar
by
by
or
vidual
reason of some
status
prop-
by
virtue of an interest created
contract or
App
erty”.
Hence,
the
62 Mich
correct
statute of limitations would seem to be the three-
27A.5805(7).
600.5805(7);
year statute of MCL
MSA
applied
general six-year
Some cases have
pecuniary
e.g.,
See,
statute to actions for
loss.
Development
Borman’s,
Co, 60
Inc v Lake State
(1975),
App 175, 187-189;
Mich
Finally, plaintiffs’ I consider count for "Uncon- Delegation Authority stitutional and Denial of Equal Protection”. The substance of this count 750.167b(3); that defendants violated MCL 28.364(2)(3) requiring posting security Appar- statutorily over and above the allowed fee. ently anticipating be con- statute would permit alleged practice, strued to it this is also this count that such a construction would uncon- stitutionally delegate setting judicial prerogative of addition,
bail. it would criminal violate for Justice v Goldfarb of M. F. protection by rights equal confer- defendants’ ring to deter- on bondsmen unfettered discretion may Thus, be bailed. mine whether defendants plaintiffs single pled in the alter- this count have statutory alleging native, violation of either a complexity rights. However, constitutional purposes of limita- statute immaterial already concluded a claim based I havе tions. overcharge statutory and a claim based on on denial of a constitutional
right subject to are both period. three-year must limitations One of these count, and the correct construction of this be the applies three-year here. statute therefore also appropriate of limitations is statute Because years three, of the counts rather than six for each description plaintiffs’ complaint, the class *14 membership to to limit certified must be amended accruing years within three those with claims filing plaintiffs’ complaint. preceding of Deñning Ambiguity the Class in the Court’s Order description object that of the Defendants persons purchased a bond class includes all who preceding years from defendants within six they filing complaint, regardless of whether paid posted separately which, or fees or collateral combined, exceeded Defendants the bond.8 10% protest also the inclusion of all individuals who pursuant purchased and had them revoked bonds regard statute, the revoca- to the without for when tion occurred. presently
Plaintiffs concede that the class as stipulate overbroad, to its defined is redefinition. and offer to parties agreed meant to All seem that the court 3, supra. See note 88 of M. F. charged excessive those who were only include collateral, exces- or for whose bonds or premiums or charged, were premiums sive or collateral under the statute. whose was revoked bond intent it the court’s agree further was parties claims not barred the class to those with to limit found the Having of limitations. by the statute three limitations be appropriate statutе in ambiguities I years, rather than six believe redefining are clarified by the lower court’s order the class as follows: "A”, person group of all all
The class consists in "C”, "B”, group all group persons persons "D”. persons group and all who, those within three "A” includes all Group complaint’s filing, subsequent to the or years prior thereto, did a bond from defendants and purchased following: one of the
(1) exceeding fees of the bond’s face paid 10% value; or
(2) exceeding collateral bond’s posted 10% value; face or
(3) paid posted together fees and collateral which exceeded of the bond’s face value. 10% "B” a bond
Group persons all for whom includes three purchased years was from defendants within prior filing complaint, subsequent or thereto, purchase for which defendants (1), charged in "A”
Group "C” includes all persons purchased who *15 bond from defendants which bond was revoked three pursuant 765.26; to MCL MSA 28.913 within years prior filing, subsequent to the complaint’s thereto. "D”
Group persons includes all for whom a bond was bond purchased from defendants and which was revoked inas "C”. Justice v Goldfarb of
Standing Representatives Adequacy Representation
their By order 21, 1975, dated November the court proper parties represent determined that plaintiff Cartwright, class would be Barbara Holt, Charles and Edward Attee.9 Defendants con- exception that, tend with the Holt, of Charles proper parties prosecute these are not this suit. representa- Defendants further contend that by per- tion afforded absent class members those proper plaintiffs inadequate, sons who are therefore this suit should not be allowed to proceed as a class action. I will consider these contentions seriatim. argue Cartwright,
Defendants that Barbara a plaintiff (alleging statutory named overcharge by on count I premiums)
excessive bond and count (alleging II a similar violation retention of security), party collateral is not a real in interest. 1963, 201.2, GCR MCL 600.2041; MSA 27A.2041. point Cartwright’s Defendants affidavit, to Ms. acting which she stated that she was on behalf of purchased Citizens for Pre-trial Justice when she posted security. the bond and On the force of this statement defendants would conclude that Cartwright, Citizens, rather than Ms. is the real party in interest on these claims.
However, defense counsel cross-examined Ms. Cartwright subject deposition, on this at her testimony enlightening. her there is She stated personally, pur- that she Citizens, and not had posted security. chased the bond and Both the premium bond and the collateral had come from signed indemnity her own funds. She had con- Jones, The court’s order also included one William who has since longer party settled with defendants and is no to this suit. *16 App 519 88 Mich Opinion Cavanagh, J. M. F. that she believed in name and her own
tracts
bonding
loss the
any
for
responsible
be
would
that
represented
not
She had
company incurred.
behalf of Citizens.
acting
she was
on
and the
testimony
that
persuaded
I am
fact
question
a
raised
statements
in the affidavit
Cartwright
as to
Ms.
trial court
whether
that
found
real
in
The court
party
was a
interest.
and,
erroneous,
finding
clearly
was. This
not
she
aside. See Moscone
therefore,
not be set
will
(1971), lv
Mitoff,
Defendants claim stated proper representative Holt is a pro- III, unconstitutional bond revocation in count cedures. Attee, had complaining
Edward defendants ex- security and collateral premiums demanded law ceeding permitted maximum amount (counts permitted I II was complaint), plaintiff. purchased intervene The bond was How- Michigan. was collateral delivered ever, posted procure the bond was in New York to Mr. release from New York authorities Attee’s proceed- were him in holding who connection with ings that state. proper
Defendants now assert that Attee is not a plaintiff. contend that this suit They allowing Attee’s, claims, proceed such as judgment which another would involve incarceration state in- threaten an interference with unconstitutional this Court terstate commerce. Defendants remind injunc- preliminary lower court limited its Michigan tion relief to into in transactions entered limita- They criminal cases. would infer from this accepted argu- tion that their the trial court has hence, and, ment regarding interstate commerce plaintiff. that Mr. Attee is not proper for Justice v Goldfarb of interpret differently. I the record Defendants opposed Mr. Attee’s intervention with the inter- argument. opposition state commerce This not- withstanding, permitted the court Mr. Attee to *17 party plaintiff specifically intervene as a and de- proper person termined that he would be a represent the class. I conclude that the lower court rejected argument. has Furthermore, defendant’s supported argument defendants have not their any authority. citation of On this record finding there is no basis for that the lower court erred. summary, the court has not been shown to naming Cartwright
have erred in Ms. Mr. and representatives plaintiffs’ Attee as claims complaint. counts I II of the It is not contested proper representative that Mr. Holt is a claim Therefore, stated count III. there is at representative least one named for each of the stated lenges I counts. will now consider chal- defendants’ adequacy representation.
to the
of their
representa-
Defendants assert
the named
ability
carry
tives are without the financial
argue
representatives
suit,
that the
must
willing
give
be
and able to
absent class members
pendency.
actual notice of this action’s
qualifications
adequate representa-
for an
tive were stated in Northview Construction Co v
(On Rehearing),
St
Shores,
Clair
(1976):
201;
An
that the
are finan-
cially
pursue
unable to
the action raises an issue
prosecute
they
vigorously
as to whether
"will
rights
representatives
of the class”. The named
alleged
proven
here have not
their financial
adequacy
resources and those
resources’
litigation. However,
costs of this
I know of no
authority,
any, holding
nor have defendants cited
representatives
must make such a show-
ing. Perhaps
question
would be viewed differ-
ently
history
if the
of the suit evidenced inade-
quate support by
representatives. Here,
how-
gives
plaintiffs’
ever, the record
no indication that
funding.
cause suffers from insufficient
analysis
argument
Careful
is due defendants’
representatives
give,
that the
must
and must bear
giving,
the costs of
actual nоtice to all absent class
Grigg Michigan
members. In
Bank,
National
368-370;
249 NW2d
*18
gtd
(1977),
panel
lv
propositions: process requires due that absent given class members be action; notice of the (2) representatives’ duty pay it is the named to for the notification. proposition Grigg’s
The first was derived from reading Jacquelin, of Eisen v Carlisle & 417 US 156; 94 S 2140; Ct 40 L Ed 2d In Eisen Supreme spurious that, Court held in class 23(c)(2) 23(b)(3), actions under FR PCiv "Rule requires that individual notice be sent to all class members who can be identified with reasonable effort”. 156, 417 US 177. for Justice v of M. F. holding found old
Grigg "applicable to the FR P 23 FR Civ P and the new and our own Civ 358, Although GCR 208”. reasoning leading to easy this conclusion is not understand, following it seems to take course. Eisen cited Mullane Central Hanover Co, 306; 70 S 94 L 652; Bank & Trust 339 US Ct (1950), that, Ed 865 holding for its "when notice is due”, person’s process requires due "[t]he employed giving means such must be notice] [for informing as one desirous of actually the absentee might adopt accomplish reasonably it”. 72 Mich (Citations omitted). App 358, 369. also: Eisen "* * City *referred to its decision in Schroeder v York, 279; 255; New 371 US 83 S Ct 9 L Ed 2d Supreme ALR pointed U.S. 2d which as the Court prior promulgation out was decided to the explained the amended FR P Mullane Civ required rejection by publication of notice where persons names and addresses of the avail- affected were (Emphasis original.) 72 Mich App able.” 369-370. Therefore, Grigg, process requires concluded due individual notice to all absent class members.
Unquestionably, require cited authorities individual notice absent class members However, "when notice is due”. persons’] [those these provide authorities no support whatever that, conclusion brought suits GCR under 1963, 208.1(3), the absent class members are due at any notice all. There is in nothing Grigg fact itself support this conclusion. *19 Eisen, observed, as previously the Supreme
Court held that required individual notice was actions under P 23(b)(3), FR Civ cited clearly 23(c)(2) Rule so authority holding. App of M. F. sup- rule unambiguously US 177. The cited ports holding: subdivision any "In class action maintained under (b)(3), of the class the court shall direct to the members circumstances, practicable under
the best notice including notice to all members who can be individual through effort.” identified reasonable notice, given those provides The rule further exercising opt and not an out of the opportunity action, judgment: are bound judgment "The in an action as a maintained class (b)(3), action under subdivision whether or not favorable class, specify to the to whom the notice shall include and or describe those (c)(2) provided in subdivision was directed, exclusion, requested and who have not whom the court finds to FR be members class.” 23(c)(3). PCiv explained Eisen the intent of the rule’s draftsmen: "* * * individual notice to identifiable class members discretionary is not a particular ment explained, consideration to in a be waived is, rather, It unambiguous require- case. an Advisory of Rule 23. As the Note Committee’s the Rule was intended to insure judgment, not, whether favorable or would bind all class request members who did not from the exclusion * * * suit. Accordingly, each class who can be member through identified reasonable effort must be notified may request that he thereby preserve separately exclusion action and from the press his opрortunity to his claim may or that he remain in the class and perhaps participate management in of the action.” 417 US is, therefore, The rationale of Eisen clear. The Federal rule requires given, that notice be provides that all given opt those notice who do not *20 543 v Goldfarb Justice Opinion Cavanagh, of M. F. J. and effect of this rule purpose out are bound. The class members’ adjudication nonresponding of valid, to be the rule’s rights. adjudication For this designed comport were provisions notice requirements. process due contrast, of the Michi- provisions the notice
By discretionary: court rule are gan stage any at of an action under sub-rules "The court require security impose and may 208.1 or 208.2 such fairly adequately protect such terms as shall in whose behalf interests of the class action is association brought may or defended. It order that notice direct, given, may in such manner as it of the be action, settlement, pendency proposed of the of a any proceedings in entry judgment, or of other action, including persons they notice to absent if may present they come and claims and defenses so 1963, 208.4. desire.” GCR presents This rule of course possibility go absent class members will without notice of the However, process action. threatens no due violation, rights because of the absent unnotified class members are not adjudicated: reviewing adequacy 208.1(3) representation "In GCR under 1963, our courts should limit themselves to a inquiry 1963, reasonable 208.1(3) into the issue. Under a GCR action, spurious p class former FR Civ under modeled, 23 after it which was absent class members normally by judgment are not unless absent bound of the cоurt they affirmatively intervene in the suit. The way
class members have the benefit of 'one
They
intervention’.
may silently await the final decision
of the court. If that decision is favorable to their inter-
ests, they may
join
presenta-
then
in the
for the
class
If,
against
tion of individual
claims
the defendant.
conversely,
ests,
the decision is not
to their inter-
favorable
suit,
they
joined
they
have not
the class
are
not legally
findings
bound
of the court and are
legal
against
free to take
action
the defendant
in their
individual capacity.
Pipe
American
& Construction Co v
Utah,
538, 546-549;
US
94 S Ct
Therefore,
I conclude that due process does not
decision,
Appeals
614;
Northview the Court of
44 Mich
(1973),
by
NW2d 895
equally
Supreme
was affirmed
an
divided
quoted language
Court. The
for reversal.
Court did not
opinion
taken from the memorandum
However,
language
point
a
concerns
on which the
disagree.
disagreement may
Dearborn,
Some cause for
be found in Theisen v
App 607;
There is no merit in this allegation against there the mere is defense plaintiffs a named inadequate claim should not render him an
representative. explained As was representative above, if even should lose the they class members would not be bound unless had given they if been notice and intervened. Even had *22 specifically provides intervened, the court rule entry judgment court in the "shall order such only parties form as to affect the to the action and adequately represented”. those GCR 208.4. give power "impose The rules also the court fairly protect adequately such terms shall (GCR 208.4), and, the interests of the class” preju- "in furtherance of convenience or to avoid separate separate dice”, to order trials of issues. 11 among approval by After circulation the members of this panel, Supreme Grigg Michigan Court issued its decision in v Bank, 148; analysis National Its NW2d necessity spurious Michigan of notice in class actions under the rules parallels analysis concluding of this Court in that no notice to absolutely required, given "opt-in” absent class members is nature Michigan. of the class action in provisions
GCR 505.2. These are sufficient protection against injustice which defendants foresee.
Defendants that Mr. Attee is an suggest inade- because, quate representative at the time he filed intervene, a petition to he was on release on an in in- appeal posted bond New York. Defendants quire person of this Court whether such a can provide adequate representation. Defendants have given neither authority, argument, nor nor reason to doubt that he may. defendants, in
Finally, reply their brief relying Lee, Hansberry 115; 311 US S Ct 85 L 22Ed contend that plaintiffs the named are not adequate representatives because their inter- persons who, ests are conflict with those of future, sometime may purchase wish prefer bond and to surrender may collateral go violation the statute rather than without bond.
The reliance on Hansberry misplaced, is and the argument possible meritless. The future pur- chasers whose wishes defendants would accommo- date are not within the class certified the lower by court. Therefore the hypothecated conflict between those purchasers future plaintiffs the named is not a conflict among the interests of class mem- bers which impair would adequacy represen- tation.
I conclude that representation afforded ab- sent class members plaintiffs the named adequate.
Decision of Substantive Issues Without Notice to
Absent Class Members Defendants next contend that the court denied *23 for Justice determining the sub process them due law ordering first in this case without stantive issues class. plaintiff members of notice to absent Eisen, v H B and Kass supra, rely Defendants Co, Inc, 101; 246 & NW2d Shaine action Michigan to this Eisen’s inapplicability has discussed at some been under GCR repeated need not be That discussion length above. here. court the lower that, held Kass it was where to order notice exercised its discretion
had must members, comply that notice class absent Bank v Central Hanover with Eisen and Mullane Co, is, & Trust it must be individual supra; effort, can who, with reasonable notice to all those GCR to rewrite be identified. Kass purport did not it to absent 1963, 208, compelled notice so that substantive any decision of class members before discre- remains notice is ordered issues. Whether court, and, before the record the trial tionary with abuse, error here. I find no manifesting no us Merits; Statutory on the Triаl Court’s Decision Overcharge by Excessive Premiums merits of This and the next concern issue violated defendants plaintiffs’ allegations which, 28.364(2X3), perti- 750.167b(3); MSA MCL part, provides nent follows: executing any bond charge "It shall for be lawful bond- case, engáged in the person in a criminal ing but no clerk, agent or business; or principal either as indirectly, another, or direct representative either money any sum charge, accept or receive shall fee prevailing regular property, than the other value the face bonding, not exceed which shall 10% *24 88 Cavanagh, J. of M.F. Opinion thereof, period any part of the a 12 bond for month or bond, person any from for whom he has executed any performed other service whatever in connection indictment, any charge upon with or information which added.) (Emphasis person the is bailed or held.” court, order,
The trial opinion in its held that where defendant charge, accept bondsmen or any receive or com- money property which has a greater bined value than of the face value of 10% written, the bond they provisions violate of 28.364(2)(3). 750.167(b)(3); MCL MSA The issue here is whether the court erroneously plaintiffs ruled favor of respect to count I of their complaint, alleged which that defendants violated the by charging statute premiums which exceeded of the bond’s face value. 10% argument
Defendants’ that did not they violate 28.613(2); statute is based on MCL MSA 4.450(13X2): "(2) act, On and after the effective date of this there
shall be levied an assessment as additional cost in an equal fine, amount ure of every to penalty 10% and forfeit- imposed and collected the courts for criminal offenses, fine, othеr than a penalty or forfeiture for a Michigan violation of the vehicle any code or local relating ordinance a stopping, parking operation of vehicle, and other than for a violation of the conser- vation laws. When a suspended, fine is or in whole part, the assessment shall proportion be reduced in suspension.”
Defendants assert intent legislative behind the statute limiting premium bond of 10% bond’s face value was to allow bondsman to charge of his risk. When MCL 10% 28.613(2); 4.450(13)(2) en- subsequently was acted, it raised the bondsman’s risk to 110% for Justice reading argue, Thus, defendants value. face bond’s giving together, effect to the the statutes charge Legislature’s intent, of the bond’s 11% (the being value, bondsman’s face 110% 10% risk), the statute. not violate does argument, considering the merits of this
Before important limited reach. to mark its it is argument only correct, the could First, if even premiums justify make no Defendants 11%. plain- greater premiums justify which effort tiff charged alleges cases. some were imposition Second, concede defendants *25 surcharge in Recorder’s was terminated of the in 1975. Court 28.613(2); finally,
Third, in 1976 MCL MSA and 4.450(13)(2) repealed. PA Eff. Janu- 1976 was ary 11, 1977.12 arguable legal summary, basis for there is no premiums
justifying 1975, and there is after 11% greater support premiums argument made no face value. than of the bond’s 11% of the court’s decision. I turn now to the merits grounds. upon alternate That decision was based People The court’s first rationale was based v. (1968). App Barber, 395; 165 608 14 Mich NW2d 4.450(13X2) 28.613(2); that MCL Barber held Although in Barber was unconstitutional. issue surcharge applied fines, was the as 10% applied lower court herein held that Barber forfeitures, is, sur- bond as That well. 10% charge unconstitutional; forfeitures was on bond only wаs, therefore, defendants’ risk 11% 10% premiums were, therefore, unlawful. Legisla-
Secondly, that, the court held when 12 brief, Appellants’ pp from the record whether 23-25. It is unclear People impose surcharge the wake of other continued to courts (1968). Barber, 395; App 608 v 14 Mich 165 NW2d App
550 519 88 Mich of ture, statute, in wording stated: of the "10% bond”, that, face value of the it meant precisely and not of the bondman’s risk. 10% statute,
In construing
it
is our
duty
give
intent. Posselius v First
effect
to the legislative
Bank—Detroit,
687, 689;
National
Mich
(1933). However,
NW 429
discover
intent
one must
first
to the plain meaning
look
Chrysler Corp
v
Washington,
statute’s
words.
lv den
(1974),
NW2d 66
App
(1977).
Because
second,
alternative
rationale,
I will not consider
the constitutional
issue. See Rosenbaum v
Dep’t
Treasury, 77 Mich
lv den
(1977),
337-338;
Overcharge by Taking Collateral Defendants next contend that the court also erred in determining that defendants violated the statute by taking which, collateral alone or with premium the charged, exceeded of a bond’s 10% face value. Defendants maintain the that statute applies only payments premiums, of at which time title to the hands, property changes and not 1979] v for Justice of pledges is not transfer- collateral, title of where red. wording nothing ex-
However, in the statute’s presses it transaсtions involv- to limit an intent sweep contrary, ing the of title. On a transfer language is broad: of its * * * bonding in the business engaged person "[N]o money or any receive sum of charge, accept or shall regular prevailing fee for than property, other of face exceed value bonding, shall not which 10% 750.167b(3). MCL of the bond.” analyzed thoughtfully this lan- trial court authority light pertinent guage and con- of compre- "charge, accept receive” cluded my property In collateral.13 of hend the transfer judgment was correct. this conclusion
Constitutionality 765.26; 28.913 MCL MSA ruling challenge Lastly, the court’s defendants by way 28.913, 765.26; MCL of order that procedure for a bondsman’s which establishes the summary principal revo- rearrest of his bailed cation of the it bond, because is unconstitutional process provisions clauses violates due carefully After and Federal constitutions. state weighing precedents affirm involved, I would the trial court’s decision. argued plaintiffs below, the court principal by procedures
statutory
a
for arrest of
liberty
deprivation
bondsman constituted
required by
process
the 14th
without due
of law as
On
States Constitution.
Amendment
United
Abercrombie,
(CA 5, 1973),
United States v
F2d
See
Alcorn,
v
State Kimb
854;
State
Neb
The statute under attack in "In any person persons all criminal cases where or recognizance any personal have entered into for the appearance surety of such another and bail and shall afterwards desire to be from responsibility, relieved his may assistance, he or without arrest the accused jail and deliver him at or to the of sheriff said county. making such arrest he shall be entitled to sheriff, of police assistance of any city chief any peace or keeper any officer. The jail sheriff or county said is authorized principal to receive such jail detain him in until discharged he is in due course Upon of surety delivery law. principal jail of his at the by the officer, any surety such shall be released from recognizance.” 765.26; of his conditions MCL 28.913. noteworthy It that, terms, its the statute does require surety not to articulate his reasons for desiring responsibility” "to be relieved of his nor establish standards to define the circumstances may justified. which such a desire be The statute also entitles bondsmen to the assistance of state effecting officers in the arrest. plaintiffs’
The success of Fourteenth Amend- process upon ment due claim rests the outcome concerning this Court’s threshold determination action, i.e., existence or lack of state v Goldfarb Justice M. F. *28 significant sense, has involved itself the state some Lodge 107 No v actions. Moose in the bondsmen’s 1965; 32 L Ed 2d 173; 92 S Ct Irvis, US (1972). Finding otherwise what state action 627 appears requires private purely a conduct
to be weigh reviewing circum- to sift facts and court Parking Authority, Wilmington v Burton stances. 856; 6 Ed 715, 722; 81 Ct L 2d S 365 US emphasize mere outset, I that would At the power existed at arrest bondsman’s fact making prevent such of law does not сommon finding. makes void: Amendment The Fourteenth a " every of kind’ which is inconsistent action 'State contained, and extends to guaranties therein with the laws, shape authority in of 'State manifestations of customs, ” proceedings.’ Shelley judicial or executive 1, 14; L Kraemer, 68 S Ct 92 Ed 334 US v (1947). therefore, itself seem, that not the source It would power to arrest but rather the of the bondsmen’s regard power posture to that the state with issue. For exam- of the state-action determinative ple, supra, Shelley Kraemer, made it clear that v judicial authority in the form of enforcement state state action.14 of a common-law rule constituted supra, Taylor Taintor, v which defendants authority proposition my for the brothers cite as the common law the statute derivative of compel thus, exists, not no action does state indication from the record that bondsman’s There is some rearresting right principal by supposed private him to his surrender Michigan delivering has enforced him to the sheriff been Ruckers, Opinion People 74- Court No. Washtenaw Circuit courts. 7580-FY, 3, 1974, Support plaintiffs’ July appended Brief Although Shelley Preliminary Injunction. Motion for Amended decision, finding provides authority supra, action on this record on this for a state reluctant, alone, given paucity of I am the in the instant case. basis point, same conclusion reach App 88 of M. F. opposite an conclusion. No issue state action Taylor. opinion’s was raised forceful lan- guage, emphasizing the extensive nature of the power, appears sup- bondsman’s arrest aimed at porting escape surety its conclusion that a cannot liability by claiming a his bail bond that his рrincipal’s extradition from another state to a put beyond surety’s By third state him reach. equating surety’s custody a claim with a pointedly attempting state’s, the Court was discourage agreements surety collusive between principal encouraged and his which the latter to foreign jurisdiction. flee I thus would distin- guish Taylor from the instant case and do not find dispositive it of the state action issue.15 *29 Supreme authority
The most recent Court concept the of state action as it relates to the Metropolitan Amendment, Fourteenth Jackson v supra, carefully Co, Edison delineates a "nexus” determining private for test whether conduct is to be considered state action with the ambit of the Fourteenth Amendment: * *
"* the inquiry must be whether there is a suffi- ciently close nexus between the State and the chal- lenged regulated action of entity the' the instant [in case, of the so that the action of the latter bondsmen] may be fairly treated as that of the State itself.” 419 345, US 351. opinion points
The Jackson further out "[t]he (D Co, Minn, Supp 15Nor does Curtis v Peerless F Ins 1969), persuade There, tome a take different view. the court discussed surety’s right the principal common-law to arrest his to reiterate the surety damages rule that a returning principal is not liable for the custody. dicta, to controlling The statements strike me as I do not find them Indeed, surety here. the court assumes that the will use means, proper reasonable Such appear purpose, a to achieve the arrest. surety’s power envisioned restrictions on the to arrest do not bar, power the case at where the defendants claim the plenary. is arrest 1979] v Goldfarb for Justice Cavanagh, F.M. may not be the involvement nature of State’s
true may inquiry immediately obvious, be and detailed required test is determine whether in order to p supra, Jackson, 351. met”. all, mere fact clear, first of
It regulated heavily licensed, entity particular or supra, Lodge supra, is not Jackson, No Moose finding action. of for a state sufficient itself predicated upon the Thus, cannot be state action regu- Michigan extensively the State fact that professional practices bonds- lates business premised finding on the be Nor can such men. proce- "encouragement” rearrest of the statute’s Compare Northrip Mort- v Federal National dures. (ED 1974), Supp Mich, gage Association, F (CA Impala Motors, 503 F2d Turner 1974). discussing case, how- the merits factors court isolated other ever, the Jackson private present, level of which, if could raise indicated that action. The court to state conduct the traditionally powers furnishing or exercise of services sovereign, with the associated interdependent symbiotic rela- existence of a party tionship private the state and the between practice by approval covert overt or supra. significant. Jackson, See state, were Northrip, supra, p also, positions of contend that Defendants would company utility professional and the bondsmen *30 analogous, there, here, no state Jackson are disagree, the two situa- I and find action exists. company’s distinguishable. utility activi- tions thus, above; to meet criteria listed ties failed of action. not rise to the state its actions did level Application the instant factors to those same of compel opposite casе, however, result. First, the fur- the Court in Jackson found 88 Opinion op nishing electricity traditionally of not is associated acting sovereign capacity. with the state’s in its supra, pp by Jackson, Here, contrast, 352-353. professional bondsmen, defendants, like exercise a power adjunct clearly a which traditional sovereignty: power state’s to arrest. The bonds- power power beyond man’s far extends the limited granted by ordinary to arrest (MCL to the statute citizen 28.875), 764.16; MSA and is free of the procedural safeguards carefully which control civil (MCL arrest 600.6075-600.6078; MSA 27A.6075- 27A.6078).
Secondly,
Pennsylvania’s
unlike the State of
utility’s
policies,
attitude towards the
termination
Michigan,
through
Legislature,
action of its
has
"approved”
procedures.
"ap-
of the rearrest
This
proval” may be discerned on two levels. MCL
765.26;
28.913,
is identical to 1929 CL
significantly
prior statutory
which
altered the
concerning
scheme
of
surrender
a bailed indi-
by
surety by allowing
surety
vidual
his
to
directly
principal.
arrest his
The former statute
required
surety, upon
apply
affidavit,
a
to a
justice
peace
of for mittimus
be
served
upon
by
the individual
a sheriff or other third
party who was then authorized to make the ar-
Returning
power directly
rest.16
the arrest
to the
provided
part:
1915 CL 15699
any person
persons
"In all criminal cases where
or
have entered
any recognizance
personal
another,
appearance
into
for the
and such
surety
principal
bail and
shall afterwards believe that his
intends to
abscond,
absconded,
or
surety,
application
any
has
such bail or
justice
peace
county
taken,
recognizance
in the
in which the
principal
resides, and,
or in
producing
which such
evidence
his
bеing
surety,
verifying
application
bail or
the reason of his
otherwise,
oath
duty
justice
or
it shall be the
of such
forthwith to
grant mittimus,
sheriff,
constable,
deputy,
directed to the
his
or
person
county
made,
other
commanding
application
in which such
shall be
person
such officer or other
forthwith
arrest such
principal,
state,
bring
if he is to be found within this
him before
justice,
taken, and,
such
security may
that other and sufficient
be
*31
557
for
Justice
v
Cavanagh,
J.
M. F.
making
significant change
long-
surety,
standing
in a
a
thus
(one
pre-
it
of which
must be
statute
People
Legislature
aware,
v
was well
sumed
Buckley,
12, 21;
[1942],
448
302 Mich
4 NW2d
City
County
v
Gas & Electric Co
Lenawee
[1920]),
52, 64; 176
590
must
Adrian, 209 Mich
NW
"evidencing
change
purpose
regarded
to
a
be
existing
In re
law”.
and effect of
force
Estate,
674, 679;
Finally, found no evidence the Jackson decision "symbiotic” relationship the state between persuade utility company the court that and the supra, p Jackson, 357. Exis- action existed. state relationship, as a tence of whether described interdependence partnership, symbiosis, long required has significant considered establish been private con- the state and nexus between Lodge 163, See, 107, 175- No 407 US duct. Moose Mulkey, 1627; 177, 387 S Ct US Reitman do, jail keeper in said him the of the common failure so to commit principal hereby county, such retain who is authorized receive jail discharged by a course of law.” him in until he is due 7877, 11872, provision may CL 1871 CL An found identical be 1857 CL 1840 PA Opinion op 18 L Burton v Wilmington Ed 2d 830 Parking supra, Authority, Wahba v New York (CA 1974). University, F2d Such a relationship exists between professional bondsmen *32 and the state and most convinces strongly me of the correctness of a Indeed, state-action finding. my dissenting brethren even allude to the benefit the state receives from a bondsman. The bonds- man’s relationship with the court quasi-official. By arranging for pretrial release of the ac- cused, he relieves the state of the of caring onus for a defendant in custody, and in essence contin- ues the original imprisonment. Taylor Taintor, v 83 US 371. In regard, this we find most persuasive the following language from Ouzts v Maryland Co, National Ins (CA 505 F2d 1974), (Hufstedler, J., dissenting): "By permitting a defendant to be released into the custody private of a surety, the state expense saves the that it would otherwise incur in constructing additional jail facilities, feeding and clothing prisoner, to and using defendant and governmental its personnel own guard appearance insure his in court. In main- taining custody defendant, therefore, over a the bail bondsman performing important public an function.” also, See Dill, Discretion, Exchange and Social Control: Bail Bondsmen in Courts, Criminal 9 Law (1975).17 and Soc Rev 639 legal powers "The extradition, bondsman’s of arrest and like his bail, posting may discretion in occasionally put advantage be to the justice criminal post officials. they Bondsmen 'own’ defendants for whom Therefore, bail. informally law-enforcement can officials borrow legal the expensive authority bondsman’s having comply to avoid procedures necessary cumbersome for inter-state extra fugitive dition of arrangement, defendants. Under defendants who have been arrested in another state are turned over to bondsmen original charges for return to face they jumped in the state where bail.
'Some important officials claim that law-e.nforcement most Justice v Goldfarb reasons, that sufficient I conclude above For the defendant bail exists between state nexus under that actions to find the latter’s bondsmen purposes the Four- action for the statute state Amendment. teenth present concluding
Merely that state action is case, however, not resolve the does the instant proc- requirements question of due of whether general apply to the bondsman’s rearrest ess 6n released bail. of an individual surrender inquiry not "the nature turns on whether or This contemplation of is one within the of the interest language 'liberty property’ the Four- Morrissey Brewer, 408 Amendment”. US teenth 2593; L 471, 481; 92 Ct Ed 2d S Shevin, 1983; 32 L 407 US 92 S Ct Fuentes v Ed 2d 556 parallel a close between
The court below found *33 liberty released on a of the individual the interest by parolee that scrutinized bail bond and of the Supreme supra. Morrissey, I find no the Court agree analysis in the trial court’s and would error although freedom is that, the accused’s bailed liberty enjoys conditional, the core values he protected by process the Four- clause of due procedural teenth Amendment. The nature of the safeguards however, entitled, he calls which liberty balancing process inter- for a between rearresting a est and the bailed state’s interests supra, pp Morrissey, While the 481-483. defendant. bail-skip- present statutory system perhaps deters ping, to insure a an alternative means affords primarily appearance, bene- defendant’s the state summary meth- arrest because the fits bondsman’s retrieving defendants service bondsman renders to the state is Dill, p supra, who have absconded.” F. M. ods avoid the procedure required more involved before a prosecutor may rearrest the accused. It is determination, my therefore, inter- liberty person est a released on significantly bail out- weighs the state’s interest in the current alterna- tive provided arrest method to professional bonds- men. course,
I recognize, of that both the state and have in assuring bondsmen an interest appearance for trial. affirming accused court, the trial I hold here the current only implementing statute this interest fails to meet process requirements due the Fourteenth Amendment therefore unconstitutional.
Numerous United States and Michigan Supreme
pronouncements
Court
have provided instructive
guidelines
concerning
procedure
necessary
process
whenever Fourteenth
in
Amendment
due
See,
are
example,
terests
involved.
Morrissey
Brewer,
supra,
Shevin, su
485-488,
Fuentes v
pp
pra,
Co,
Mitchell v W T Grant
96-97,
pp
416 US
600;
1895;
94 S Ct
I hesitant, however, am to usurp Legisla- ture’s function mandating comprehensive procedure, consistent process, govern with due bond revocation and rearrest. I thеrefore would leave Legislature’s experience wisdom and the development of compatible system due process courts, and with the needs of the Michigan *34 the individuals seeking bonds and the professional bondsmen.
A response to the position taken
the
majority
on the
constitutionality
bondsman’s
rearrest
v
Justice
My
appropriate.
procedures
brothers, in conclud-
is
right
ing
consti-
to rearrest
that the bondsman’s
private
emphasize
the
tutional,
nature of
bail
predicate the bondsman’s
and
bond institution
right
sanctity
This
of contract.
on the
rearrest
private
merely
of bail as a
nature
focus on the
undertaking ignores
reality
a method of
its
right
statutory
securing
constitutional
765.6;
1, § 15, MCL
art
Const
bail.
People
App 352,
Giacalone,
354;
28.893,
v
(1969).
in all
not absolute
While
167 NW2d
recognized
right
as fundamen-
cases,
to bail is
presumption
upon
of inno-
tal,
is based
prior to trial.
individual
that attaches to an
cence
Winship,
1068; 25
358, 362;
S Ct
L
397 US
re
(1970).
Ed 2d 368
right
before conviction
to freedom
"This traditional
defense,
unhampered preparation of
permits the
prior
punishment
infliction
prevent
serves
Parker, 156
Hudson
U.S.
See
v.
conviction.
(1895).
preserved,
right
trial
to bail before
Unless this
innocence,
only
centu-
after
secured
presumption
meaning.”
Boyle,
struggle,
its
Stack
ries
would lose
1, 4;
72 Ct
96 L Ed
US
S
right
majority’s
of a contractual
The
elevation
right to
whim of
an absolute subordinates
very least,
At
the rearrest
bondsman.
impermissibly
contract
clause
the bail bond
public policy
been em-
with a
that has
interferes
every
since
of this state
bodied
constitution
Injunctions
Having
collateral,
fee,
the bail-bond
declared
plaintiffs
practices
com-
of which
and revocation
preliminary
plained unlawful,
the court issued
*35
op
Opinion
Cavanagh,
M. F.
J.
injunction
pendente
against
the defendants
lite.18
injunction
stayed
This
was
on
court’s own
pending
days,
order for 30
application
on
action
defendants’
appeal. In
for leave to
this Court’s
granting
stay
leave,
order
was extended until
Having
further order
this Court.
of
affirmed the
merits,
trial
court’s decision
the issue is
stay
now whether the
should
lifted.
be
purpose
preliminary injunction,
The
aof
and the
ground
granted,
upon
it
which
should be
were
Supreme
discussed
Court
Niedzialek v
Journeymen Barbers,
296,
552,
Local
331 Mich
(1951):
300-301; 49
NW2d
pen-
granting
withholding
"In
injunctive
or
relief
dente lite of
it
highly proper
a case
this character
is
quite
and
rights
essential for a court to consider whether
respective litigants
will best be subserved
by granting temporary injunctive
if sought.
relief
If the
personal rights
property rights
or
involved will be best
preserved by granting temporary injunctive relief in a
presenting
merit,
suit
issues of controverted
such relief
(Citations omitted.)
granted.”
should be
general
standard of review was stated in
totals more
November
First
make such omission. We had intended to
relief, injunctive
administration
entered
reference in
wherein
for the
property
way participating
present statutory procedures deny procedural
until
agents
"Counsel called
"XXIS ORDERED that
Opinion,
further order
posting
must
property
or
employees
than
money,
its
provide
1975.
November
of a
of revocation
relief
grant
10%
or
attention
bail
whether
money
of
are
such interim
against
of
any
bond in
the face value of the bond written.”
hereby
injunctive
during
transaction
Court,
designated
received,
defendant’s denial
procedures. Therefore, any judgment
the Court
restrained and
Michigаn
injunctive
the defendant
relief to
accepted
pendency
as collateral
to the
entered into in
criminal case where such
provide
relief.”
Court’s
due
its
enjoined
or
of this action and
charged
holding
due
bondsmen,
process.
as to
security
Supplement
omission of a
process
from in
injunctive
in return
Michigan
We did
Order,
in its
their
any
fee,
Justice
v
Rapids
of Grand
Ass’n
Manufacturers
Furniture
Exhibitors, Rapids Guild
Grand
(1934):
689;
discretionary with discretionary of such the exercise rarely interfere palpable showing of a upon a only then power abuse *36 omitted.) (Citations thereof.” 692, Co, 276 Mich Buhl Optical v Seifert See also (1936). 784 699; 268 NW broad enjoys very
However, the court although withholding injunctive or granting discretion threat- able to show relief, must be plaintiff Harbor v Benton rights. his interference with ened 614, 624; 231 Co, Mich Light Fuel & 250 Michigan the defen- (1930). that It not sufficient 52 NW 42 rights. See third-party threatens conduct dants’ CJS, 29, 764-766; 43 2d, pp Injunctions, Am Jur § p Injunctions, § had the court
Furthermore,
instant
case
charges
fee and collateral
that defendants’
ruled
Hence,
its injunction
criminal
statute.
violated a
of a
commission
against
practices
enjoined
those
in this
orders,
the law
regard to such
crime. With
en-
conduct
That
is well settled.
jurisdiction
equity’s
to invoke
not sufficient
is a crime is
joined
injury
allegation
an
there must be
jurisdiction;
However,
person.
or
plaintiff’s property
to the
it does not
allegation,
an
there
is such
where
en-
the conduct
that
jurisdiction
equity’s
defeat
Raymond,
v
of Warren
Twp
See
is criminal.
joined
(1939), United-
426, 428; 289 NW
291 Mich
Enter-
Theatrical
v Colonial
Corp
Theaters
Detroit
Inc, 280 Mich
425, 431; 273 NW
prise,
v
Co,
Glover
supra,
Buhl Optical
p
Seifert v
Malloska,
(1927).
213 NW
88 Mich
V. J. Brennan
Village
also,
Parsons,
See
Port
Austin
629, 631;
comes late. Because the preliminary injunction only people benefits who parties litigation, are not error. its issuance was enjoined summary The court also defendants’ pursuant revocation of to the bonds statute. Un- injunction against overcharges, like the this order may protect plaintiff rights. class-members’ broadly class is not so defined it includes all persons who are free on a bond written defen- dants, and hence threatened with their bond’s persons However, revocation. it does include free charged they bonds which were too much in fees and/or collateral. Limited to the benefit of *37 persons injunction these the is not an abuse of discretion.
In conclusion, I would affirm the trial court’s part, part in decision and reverse in and remand proceedings to the lower court for with this not inconsistent opinion. (concurring part, dissenting
V. J. J. in Brennan, part). Judge opin- Cavanagh’s in We concur except portion holding ion 765.26; MCL 28.913 unconstitutional.
Judge Cavanagh opinion bases "a his on balanc- ing process” liberty between the interests "of the bailed defendant” and the in state’s interest "rear- rest” and holds that the bailed is enti- defendant for Justice v V. Brennan due-process protections. his to What tied opinion some private weigh in is the fails to the balance the and bondsman’s naturе a bail contract interest therein. essentially places arrangement the
A bail-bond defendant) (bailed custody principal of the in the bondsman) (bail imposing surety on the thus responsibility produce obligation surety the to proceedings. principal At at various court the right surety the surrender had common law principal any thus to the state and the discharge at time obligation. process was ever nec- No principal by essary the arrest of authorize principals surety. by sure- Anno: Surrender of supplemented by bond, bail 3 ALR ties on expressed rule was ALR This common-law Supreme given by the United States effect Wall) (16 Taylor Taintor, 83 US Court (1873), 371-372; 21 follows: L Ed as regarded is given, principal bail is "When custody Their dominion delivered his sureties. original imprisonment. When- is continuance so, may him and they they to do seize ever choose discharge, him their and if that cannot be up deliver once, him until it can be they may imprison done at person by They rights exercise may done. their * * * agent. by virtue of new The seizure not made likened process. needed. It rearrest None is sheriff, prisoner. escaping of an omitted.] [Citations Anonymous, it is said: 'The bail Modern [P 231] pull string, may principal have their their string please, him in they whenever and render ” discharge.’ 524, 547; S Landon, See also Carlson v 342 US Good- 96 L States v Ct Ed United (CA 1971), Fitzpatrick v *38 win, 1152, 3, 440 F2d 1156 519 88 of V. Brennan (CA 1931), 5, Williams, 46 F2d 40 Parte Ex Sal 1923). (CA inger, 2, F 752 conception This bail-bond has not contract antiquity century. been to the of the 19th In lost Fidelity Corp v Comm recent case of Allied (CA 1978), Revenue, 7, Internal F2d Taylor, supra, powers cited court for the broad pointed surety of a on a bail and further contract although large may out that an accused be at due accused) (thе contemplation bail, to "in of law he custody”. remain[s] in Maryland Co, v Outzs National Ins F2d (CA 1974), quoted ap- the court
proval following Fitzpatrick Williams, from supra: right surety recapture principal
"The to his is not a procedure, matter of criminal but arises from the private undertaking implied furnishing * * * bond. It equally surety, true that if he has right, required process the detain is not legal to resort principal purpose making his for the surren- der.” present
The statute under attack in the case represents Michigan’s the State of return to the rights common-law and liabilities on a bail-bond contract. The essence of the bail-bond contract is a private undertaking between the bondsman and imposing rights obliga- the bailed defendant running ways. right tions both The bondsman’s recapture rep- surrender bailed defendant significant resents a factor the bondsman’s un- dertaking. authority The bondsman’s to surrender directly right does not affect the bailed defendant’s post to bail since the latter still free to bond or employ surety purpose. another for that We are may pre- not unmindful that economic realities *39 for Justice Opinion of V. J. Brennan posting from his the surrendered defendant elude bond, not warrant factor does but own abrogation private surety’s rights on the
of the contract. surety’s function on the bail-
It is noted that the operates to the state from relieve contract bond policing bailed defendants court attendance of addition, In state’s interests. thus furthers practices protects regulation of bail-bond state against balancing system. abuses taking parties, into ac- various interests of the effect of surrender on minimal count right bail, find we the sure- bailed defendant’s right process. ty’s to due not offensive surrender 765.26; MSA 28.913 constitutional hold MCL We enjoin employment. not its and do D. E. P.J. concurs. Holbrook,