Undеr Indiana's statutory bail scheme, a trial court can admit a defendant to bail by requiring the defendant to execute a bail bond by using a bail bondsman or by depositing ten percent of the bail amount in cash with the clerk of the trial court. In this case the trial court declared this scheme unconstitutional under both the federal and state constitutions because it treats bail bondsmеn differently from defendants who post ten percent cash bonds. Concluding that Indiana's bail scheme is not unconstitutional, we reverse the judgment of the trial court.
Background
Introduction To Indiana Bail Law
The availability of bail is guaranteed for all offenses except murder and treason by Article I, Section 17 of the Indiana Constitution. The purpose of bail is "to ensure the presence of the accused when required without the hardship of incarceration before guilt has been proved and while the presumption of innocence is to be given effect." Hobbs v. Lindsey,
(1) Require the defendant to:
(A) execute a bail bond with sufficient solvent sureties; ~
(B) deposit cash or securities in an amount equal to the bail;
(C) exеcute a bond secured by real estate in the county, where thirty-three hundredths (0.83) of the true tax value less encumbrances is at least equal to the amount of the bail;
(D) post a real estate bond.
(2) Require the defendant to execute a bail bond by depositing cash or securities with the clerk of the court in an amount not less than ten percent (10%) of the bail. ...
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Ind.Code § 85-83-8-3.2(a). This case involves only bail bonds exеcuted under subsections (a)(1)(A) and (a)(2). See Br. of Appellee at 1.
A "bail bond" is a bond executed by a person who has been arrested for the commission of an offense for the purpose of ensuring: (1) the person's appearance at the appropriate legal proceeding; (2) another person's physical safety; or (3) the safety of the сommunity. I.C. § 35-33-8-1. A bail bond executed under Indiana Code section 35-33-8-3.2(a)(1)(A) is most commonly used by defendants who use a bail bondsman, while a bail bond executed under Indiana Code section 35-33-8-3.2(a)(2) is most commonly used by defendants who post ten percent cash bonds. We explore each of these methods in more detail below.
Defendants Who Use a Bail Bondsman
A defendant who executes a bail bond under Indiana Codе section 35-83-8-3.2(32)(1)(A) uses a bail agent, commonly referred to as a bail bondsman. A "bail agent" is a person who has been approved by the Commissioner of the Department of Insurance and appointed by an insurer through a power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings for which the person reсeives a premium. 1.C. § 27-10-1-4. A "premium" is the
Before 1985, the court was also required to order the bond forfeited when the defendant failed to appear as ordered. See ILC. § 35-4-5-12 (1982). However, the legislature recodified and amended this section in 1985. Pub.L. No. 261-1985, § 12, 1985 Ind. Acts 2084-85. In addition to removing the forfeiture requirement, the amendments provided that the bail agent or surety must:
(1) produce the defendant; or
(2) prove within three hundred sixty-five (865) days:
(A) that the appearance of the defendant was prevented:
(i) by the defendant's illness or death;
(ii) because the defendant was at the scheduled time of appearance or currently is in the custody of the United States, a state, or a political subdivision of the United States or a state; or
(iii) because the required notice was not given; and
(B) the defendant's аbsence was not with the consent or connivance of the sureties.
ILC. § 27-10-2-12(b). As things now stand, if the bail agent or surety does not comply with the above requirements, then the court shall assess a late surrender fee. The fee is graduated from twenty to eighty percent of the face value of the bond, depending on when the bail agent or surety complies with the statutory mandate. See L.C. § 27-10-2-12(c). And it is due on the date of compliance or 365 days after the clerk mails notice, whichever is earlier. Id. Additionally, the court shall order the bond forfeited only if the bail agent or surety fails to produce the defendant or show that the defendant's appearance was prevented within 365 days of the clerk's mailing of the notice. IC. § 27-10-2-12(d). Even then, only twenty percent of the face value of the bond is forfeited. Id. Onee forfeiture is ordered, the court shall immediately enter judgment. Id.
Defendants Who Post Ten Percent Cash Bonds
A defendant who executes a bail bond under Indiana Code section 35-83-8-3.2(a)(2) deposits ten percent of the bail amount with the clerk of the court. If the defendant appears as ordered by the court, then the clerk returns to the defendant the deposit, minus administrative and other costs. LC. §§ 35-83-8-3.2(0)@), -I. Before 1990, when a defendant failed to appear, the court issued a warrant for the defendant's arrest and ordered the bond forfeited. I.C. § 35-38-8-T(a) (1988). Although this is still true as a general proposition, the legislature has made some changes.
Facts and Procedural History
Herbert Smith and Charles Zacek (collectively referred to as "Bondsmen") are bail agents licensed in the State of Indiana. For several years, Bondsmen have posted bail bonds for numerous defendants in Lake County. The events giving rise to this action are as follows. Smith posted a bail bond in the criminal division of the Lake County Superior Cоurt for Sheree Parker-Robinson in the amount of $3000 in November 1996 and for Valerie McCutchen in the amount of $10,000 in February 1997. Parker-Robinson and McCutchen failed to appear. However, because Smith surrendered them to the court within 865 days, the court only ordered late surrender fees totaling $2600. Likewise, Zacek posted a bail bond in the criminal division of the Lake County Superior Court fоr John Gorzeya in the amount of $10,000 in April 1997. Gorzeya also failed to appear, but Zacek was not able to surrender him to the court within 365 days. As a result, the court ordered forfeiture and late surrender fees totaling $10,000.
On November 22, 1999, Bondsmen filed a complaint for temporary restraining order, permanent injunction, and declaratory judgment against the State of Indiana, Lake Cоunty, the Lake County Clerk's Office, the Lake County Sheriff's Department, the Lake County Corrections Department, and Unknown Named Corree-tional Officers (collectively referred to as "the State"). Bondsmen contended that Indiana's statutory bail scheme was unconstitutional under the Equal Protection Clause of the United States Constitution and the Privileges and Immunities Clause of the Indiana Constitution. The trial court issued a temporary restraining order prohibiting the State from admitting defendants to bail under Indiana Code seetion 85-83-8-8.2. R. at 37. After conducting a hearing, the trial court declared Indiana's statutory bail scheme unconstitutional and permanently enjoined the State from admitting defendants to bail under Indiang Code section 35-33-8-3.2. R. at 176. The trial court later stayed the permanent injunction pending appeal. R. at 211. The State appealed, and this Court accepted jurisdiction pursuant to Indiana Appellate Rule 4(A)(1)(b).
Bondsmen contend that Indiana's statutory bail scheme is unconstitutional under both the Equal Protection Clause of the United States Constitution and the Privileges and Immunities Clause of the Indiana Constitution. This is so, according to Bondsmen, becаuse the scheme treats bail agents differently from defendants who post ten percent cash bonds. More specifically, they argue that when a defendant fails to appear, bail agents are subject to forfeiture and late surrender fees while defendants who post ten percent cash bonds are not.
I. Equal Protection Clause
The Equal Protection Clause of the United States Constitutiоn provides that no state shall "deny to any person within its jurisdiction the equal protection of laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause "does not reject the government's ability to classify persons or 'draw lines' in the creation and application of laws, but it does guarantee that those classifications will not be based on impermissible criteria or arbitrarily used tо burden a group of individuals." Phelps v. Sybinsky,
Bondsmen concede they are not members of a suspect class and that a fundamental right is not involved. Therefore, the State need only show that the statute bears a rational relationship to a legitimate state interest. Bondsmen also concede that the State has "a legitimate interest in ensuring that persons fоr whom bail has been posted appear at court when scheduled." R. at 133. However, they contend that the State does not further this interest by subjecting bail agents, and not defendants who post ten percent cash bonds, to forfeiture and late surrender fees when defendants fail to appear. Id.
We first observe that contrary to Bondsmen's contention, defendants who рost ten percent cash bonds are subject to forfeiture of the full amount of the bond if they fail to appear. Unless there is a pending civil action or unsatisfied judgment against the defendant, when a defendant fails to appear, the court "shall [] order the remainder of the deposit, if any, and the bond forfeited." I.C. § 35-33-8-7(b).
This then leaves us with Bondsmen's contention that the State does not further its legitimate interest of ensuring the appearance of defendants at judicial proceedings by subjecting bail agents, and not defendants who post ten percent cash bonds, to late surrender fees if defendants fail to appear. On this point the State responds that the unequal treatment accorded bail agents and defendants posting ten pеrcent cash bonds is rationally related to the State's legitimate interest in ensuring the appearance of defendants at judicial proceedings. We agree.
Every statute stands before us clothed with the presumption of constitutionality. State Bd. of Tax Comm'rs v. Town of St. John,
II. Privileges and Immunities Clause
The Privileges and Immunities Clause of the Indiana Constitution provides: "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Ind. Const. art. I, § 28. This provision, which is applied and interpreted independent of the Equal Protection Clause, imposes two requirements upon statutes that create classifications and either grant privileges or impose burdens: "First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated." Martin v. Richey,
In this case Bondsmen сhallenge Indiana's statutory bail scheme only under the disparate treatment prong. Similar to their equal protection challenge, they contend that the scheme creates different classes and that the differences between the classes do not justify subjecting only bail agents to late surrender fees.
We first observe that it could be argued that bail agents are trеated better under Indiana's statutory bail scheme than defendants who post ten percent cash bonds. With respect to forfeiture, if a defendant who posts a ten percent cash bond fails to appear, the court orders the full amount of
In any event Bondsmen are correct that the scheme сreates different classes. Those classes are bail agents who post bail bonds on behalf of defendants for profit and defendants who post ten percent cash bonds on their own behalf. And Bondsmen are also correct that bail agents and defendants who post ten percent cash bonds are treated differently. This is so, however, because without the threаt of late surrender fees, bail agents have no incentive to ensure a defendant's appearance because they get to keep the entire premium regardless of whether the defendant appears.
We conclude that any disparate treatment between bail agents and defendants who post ten percent cash bonds is reasonably related to the inherent characteristics between the two unequally treated classes. As with their equal protection claim, Bondsmen have failed to carry their burden of proving that Indiana's statutory bail scheme violates Article I, Section 23 of the Indiana Constitution.
Conclusion
We reverse the judgment of the trial court.
Notes
. A surety is any person who is qualified as an insurer and represented by a bail agent who agrees to pay the bond in the event the defendant fails to appear in court at the scheduled date and time. LC. §§ 27-10-1-10, -2-4(1).