*1 v. WAYNE PRESSLEY COUNTY SHERIFF (PRESSLEY LUCAS) v. Deposit
1. Bail —Bail Act —Misdemeanors—Traffic Offenses— Statutes. deposit upon persons charged The bail aet confers 10% the commission of traffie offenses and misdemeanors the post by depositing bail bail, of the amount of the and 10% precludes judges and others authorized to set bail from re- quiring surety accused of such offenses furnish a (MCLA bond etseq.). 780.61 § Deposit 2. Bail —Bail Act —Misdemeanors—Traffic Offenses— Statutes. deposit bail deposit act makes preferred 10% 10% by means which traffie offenders and misdemeanants furnish (MCLA bond seq.). 780.61 et § Deposit 3. Bail —Bail Act —Statutes—Discretion. bail aet which traffic offenders and misde- may meanants furnish depositing bond of the amount preserves bail power to set the amount of bail, deprives but him prescribe the form of the bond security or the performance for its (MCLA 780- .61 et seq.). Deposit Bail —Bail 4. Act —Misdemeanors—Traffic Offenses— Surety Bond —Statutes. person A accused of committing a traffie offense has absolute statutory right post bond under aet [15] [4-13] [5-8] [9,10,14] [1-4,11-13] 8 Am Jur 8 Am Jur 39 Am 8 Am Jur Jur References 2d, 2d, 2d, Jur, Bail and Bail Bail and Parties 2d, Bail for Points Recognizance Recognizance Recognizance §§ 44-54. Recognizance in Headnotes §§ §§ 22, 23. 9. 84§ et seq. (MCLA bond furnish required to seq.). et *2 Offenses. Court —Jurisdiction—Traffic 5. Courts —Recorder’s municipal a court functions of Recorder’s Detroit The general supervisory and constitutionally-vested subject city it a when enforces circuit court power of the control 6, 1063, 13). art (Const ordinance of Practice. Court —Powers—Rules 6. Courts — provisions modify the power has the to Only Supreme Court the “by power of in the its legislative exercise a enactment of practice modify simplify establish, and the general rules [to] 5). art (Const procedure in all courts” and Separation Law. Powers —Constitutional of 7. Courts — a may of as to legislature exercise a measure control even fundamentally daily operation of the matter which affects attorney power courts, the to assess and costs such as legislation and that fees, permissible line between such judicial power with the an unwarranted interference (Const 1963, precise art demarcation does not lend itself 81). Deposit Separation Courts —Bail Act —Constitutional Law — of Powers. impermissible deposit not constitute bail act does 10% judicial power; depriving upon intrusion inherent charged power require a traffic an offender surety willing offense or misdemeanor furnish a to stand undertaking judge’s behind his does not interfere with the performance judicial function, in a bail-setting manner of the judicial nor does it erode the court’s to control business (MCLA seq.). et Spurious
9. Parties —Class Action — Class Action. “spurious” A rights if class action be maintained sought members class to be enforced are several and question affecting there is common of law or fact the several rights persons sought, relief and a common claimed to impractical bring be class numerous make are so as to court, represent all persons them who claim before representation fairly adequate (GCR the class insure will its 1963, 208.1[3]). Spurious 10. Parties —Class Action — Class Action. proper charged A defendant, class action where with the vio- city operating lation of ordinance for a motor vehicle with- operating permit, compel out an seeks the sheriff to release him under bail act as as to well release other to inmates Jail in circum- own, stances similar to his where the class constantly fluctuates identity members, both in size and subjectively the class might subjected includes all who to- denial of bail deposit act, under the bail the claim each member might action, not warrant an members the class de- represents fendant are affected a like manner the actions complains of, he legal issue is one that demands clarifica- tion, fairly adequate defendant can has insured representation of the class. (In Part) O’Hara, Dissent J. Deposit
11. Bail —Bail Act —Discretion. statute, including The whole thrust its object title, judicial as contained in its vests discretion to *3 prescribe kind, security amount, required as well as (MCLA seq.). 780.61et Deposit 12. Bail —Bail Act —Discretion. deposit judge discretion, act in his hail allows recognizance, require release the accused on own his surety sureties, accused to execute his hond own without require together or to the accused to execute the hond with a surety, (MCLA the act seq.). as the term et 780.61 defines Deposit 13. Bail —Bail Act —Bond. hy
An depositing accused has an absolute to hail 10% of requires amount set either the accused to if execute own requires his hond a without or sureties or together surety, accused to execute the hond a the term is in the act. defined Spurious 14. Parties —Class Action — Class Action. proper defendant, charged
A class action is where with the vio- city operating lation ordinance vehicle motor without for operating hy permit, compel seeks to his release the sheriff under the hail act as well release as the SO Wayne County 60 other inmates Jail in circumstances similar to his own. Pressley Wayne Deposit Surety—Construction Bail —Bail Act — 15. Statutes —Discretion. surety”
The term “one as used in the act does only corporate professional surety any not mean but finan- cially responsible by judges person, policy and a enforced requiring corporate professional surety would be an abuse (MCLA seq.). discretion et Appeal Wayne, George from T. Sub- Martin, J. mitted Division 1 December at Detroit. (Docket 9992.) February No. Decided
Complaint by Pressley, Kenneth for himself and similarly against those situated, granted Sheriff for mandamus. Writ as to Pressley, Kenneth and denied as to other members appeals. of class. Plaintiff Writ affirmed as to Kenneth and modified to include other members of the class. (Michigan Legal
Robert L. Reed Services Assist- Program) ance (University and John Urso of De- Clinic) troit (Gary Urban Law Sams and Mark [Wayne County Neighborhood Rarron Legal Serv- ices] counsel), plaintiff. for
William L. Prosecuting Attorney, Gahalan, Dom- inick Appellate R. Department, Carnovale, Chief, Aloysius Suchy, J. Samuel J. Torina and Rheo Prosecuting Marchand, G. Attorneys, Assistant defendant. *4 Before: P. J., and Bronson and O’hara*, Levin,
J.J. * Supreme Former Justice, sitting Court Appeals on the Court of by assignment pursuant to Const art 8 23 as amended in 1968. 30 Mich com- Pressley, Kenneth plaintiff,
Levin, P. J. Circuit Wayne in the action menced persons similarly he and other that claiming Court bail right post deprived had been situated act, that act.1 Under bail deposit under the 10% traffic and offenses committing accused of persons depositing bail post by misdemeanors 10% and the court signing of the bail set the amount a bail bond. Division of Ordinance Traffic
Judges take the Detroit City Court the Recorder’s offenders the particular may deny position they that that by requiring act deposit bail benefit 10% instructed have They bond. surety furnish they re- Lucas, to County, William sheriff of where a cases those deposits fuse to accept 10% bond be furnished. stipulated has judge order entered an the circuit hearing After a his upon release Pressley Lucas to directing the bail bond. How- depositing signing include others he to extend his order to ever, refused inter- in the situated”. “similarly Pressley appealed est of the class. hold:
We upon persons act bail confers 1. The 10% of traffic offenses with the commission charged post depositing bail misdemeanors and precludes judges of the amount of the bail, from requiring authorized bail and others to set a surety offenses furnish such bond. infringe act does and, inherent upon judicial power
unconstitutionally exclu- the exercise of its until seq. et 257; (Stat PA MCLA Ann 1970 Cum No seq.). et Supp § 28.872[51] *5 Pressley Opinion op the Court practice procedure
sive control rules provisions govern. otherwise, the of the act the should have extended 3. circuit The granted the the class relief others similarly situated.
I. 1963 Illinois statute.2 modeled on statute Our municipal study practices court of in the A of pro- year Chicago that in the had revealed on $18,513,965, bonds bondsmen wrote fessional they of $1,851,396 were to receive fees entitled (10% bonds). amount of forfeit- The total year $183,- from in that ures collected bondsmen was approximately collected.3 938, i.e., fees the 10% plan The that the accused essence of Illinois person pay he would is allowed to the 10% he executes the bondsman with the court at the time complies If bond. conditions of he there is to be returned to him bond, 90% deposited average gross profit amount after —the remaining forfeitures of the bondsmen; the 10% retained court. in 1962 Since forfeitures gross retainage were bond fees, 10% thought, equal produce would, it was revenue revenue received from forfeitures. experimental adopted plan on an was Illinois objec- Although years. the ultimate for two
basis professional plan tive of the elimination was experimental period during two-year bondsmen, compensated permitted sureties were to continue to operate. plan in both Illinois was successful reducing jail population providing a fund seq., p Illinois 110-1 et Laws seq. Statutes, 110-1 et See Smith-Hurd Illinois ch Annotated currently for text of the effective statute. 3 Bowman, Deposit Provision, The Illinois Ten Per Bail U Cent Ill L F 36 (1965). 30 accused out person) be returned to the (the expenses litigation and other could which fines in jumps attendant increase paid; there was no more forfeitures; because and, principally persons were able to make bail, retainage *6 produced revenue than had been received from more forfeitures.4
In 1965 the Illinois was made legislation perma and, nent the of the act by amendment, provisions were provisions made “exclusive of other of law for the or giving, enforcement of bail” taking, thereby eliminating compensated sureties in criminal altogether cas es.5 1965 Since professional bondsmen have been unable operate in Illinois.6 4 Lehman, Oaks & The Criminal Process of Cook Indigent ; Defendant, 584, (1966) U of Ill L Boyle, Forum 670-674 Article, 267, Bail Under the Judicial Paul L et sea. 17 De Rev 274 (1968). part depends policy in on of forfeitures the enforcement The amount recently legislature requiring enacted a law The the the court. forfeitures, year from court to set aside within one the forfeiture jumped apprehended judgment, person if who bail is the “and the county justice and has ends of have not been thwarted the been repaid apprehending person”. 1970, 226, PA its costs for the No (State 28.902). Ann 1971 Curr Mat § MCLA 5 Statutes, 38, See Smith-Hurd Illinois Annotated ch 110-15. in fn 4. See articles cited recently Bar The American Association recommended the elimina- substitution, compensated that, among in tion of sureties and other suggested alternatives, required accused Project of the amount of the bail. See American Bar Association Justice, Relating on Minimal Standards Criminal Standards Release, 5.3, accompanying commentary Pretrial 5.4. the it is §§ (p 62) observed : collateral, and “Where the bondsman writes on credit without bonds no real risk of fleeing. the defendant from immediate financial loss deters required by indemnity agreement usually the bondsman The represents nothing personal in the defendant’s these eases more than recognizance. judge’s effectively negated the practice The bondsman’s has setting, might just bail and as well have been the defendant by personal recognizance. released on bondsman court Where the collateral, may setting full if demands he bail frustrate the only required. payment premium assumed that Where the bondsman what the would be absolutely a bond no matter refuses to write circumstances, system the whole bail is undermined.” Additionally, Foote, Coming in see Constitutional Crisis Bail: II) II, Parts I (Part I), (Part and Pa L U of Rev 959 (1965). 1966, in follows adopted statute, Michigan (a) Michigan except statute verbatim,
Illinois compensated exclusive, professional statute is the Michigan been prohibited; (b) have not sureties to traffic offenses misdemean- applies only statute to all offenses, Illinois applies while the statute ors mini- felonies;7 (c) Michigan including major $10, mum amount is ;8 under the act the (d) Michigan Illinois is $25 when death the Illinois act exception under There great presumption proof evident or possible punishment a case he has the burden guilty; such person is under the act. See to bail admitted he should be proving that Statutes, 38, 110-4. ch Annotated Illinois Smith-Hurd legis implementation of other in the Supreme Court The Illinois some statute as to application of the suspended the rule lation traffic As certain misdemeanors. “quasi-criminal” offenses the offender must fines and is a schedule of there offenses to these & fine. Oaks equal of the scheduled to the amount amount post an Defendant, Indigent County and the of Cook Process Lehman, The Criminal (1966); Special Rule 584, see Concern Ill Forum U of and Certain Cases, Cases ing Traffic Quasi-Criminal Procedures Illinois on December Court of adopted Misdemeanors 3, sequently 110, 1571; p sub January 1964, reprinted in ch effective January V of Article *7 adopted, effective Court the recently subject matter, which was most relating same to the its rules (The 7,1970. rules adopted October by and effective order amended Illinois 1, reprinted 1968 as Smith-Hurd January are adopted effective seq.) many the et In cases Statutes, 110A, Ch 501 Annotated § “bond” of the cash appear and amount person will not the accused appre to proceedings will be taken further forfeited and no will be hend the offender. traffic for minor today ticketed a driver who is In Illinois $25 post the of in one of required bail amount “in is to offense following ways: the Illinois driver’s amount, his current By such (1) depositing lieu of approved amount, an depositing, of license; (2) by lieu such or 526, Part V of certificate; by posting $25 cash bail.” (3) or bond the Court Rules. § judges and ordinance may purpose the traffic that the of It be in adminis- convenience the same Court is to effect of the Recorder’s opinion, in this we stated of laws. For reasons tration think our traffic this only accomplished beyond can be is their action, possibly by by legislative of statute or modification the Rehearing (On Perin Peuler Illinois, Court. See our amending enacting and 531, of 1964), 541: “The function 373 Mich exclusively procedure judicial to this practice and has been committed rules of 6, (Em- 5; 1963, 5.)” (Const 1908, 7, Const art Court art § § phasis supplied.) 8 28.872[56]); Smith- (Stat Supp Ann 1970 Cum MCLA 780.66 § § Statutes, 38, ch 110-7. Hurd Illinois Annotated § App 300 30 308 the of be if is to returned required deposit entire 10% not convicted9 while under the Ill- person is if inois is returned even the accused act only 90% acquitted.10 person is 11 of apparent. The remedial the act is purpose
II. charged Kenneth was with case a motor vehicle operating the offense of without in violation permit City of Detroit operating Supp (Stat Ann 1970 Cum 28.872 MCLA 780.66 § § [56]. Statutes, Annotated ch Illinois 110-7. Smith-Hurd § encourages judge authorizes act Section to re- recognizance personal furnishing his the offender on without the lease of any hail whatsoever. provides if decides set Section hail it should compliance to assure with the be sufficient bail conditions bond, oppressive, nature not commensurate of the offense past charged, of the criminal acts and considerate conduct the de- ability and, his and considerate of financial fendant where the offense punishable by only, is fine shall the amount not exceed double the penalty and, only maximum imposed, when he has been convicted and a fine By (PA double the amount of the fine. amendment in 1969 No MCLA Supp 780.64 Ann 1970 Cum 28.872 [Stat § § (54)]) set must be amount uniform whether the bail bond is person by surety. by the accused executed or provides person Section of the act that a for whom bail has deposit “shall bail bond been set execute the with the clerk proceeding pending money of the court before which the sum of equal $10”. If bail but person, at least the accused convicted, required him; the entire sum is to be returned to deposited if ishe sum convicted is to be returned and 90%, return, as “bail bond retained costs”. its before applied payment judgment. MCLA 780.66 § Supp 28.872[56]). Ann (Stat 1970 Cum provides: provided Section 7 “In lieu the bail any may person in section 6 for whom bail has been set execute may the bail bond with or without which bond be secured” sureties equal or value of cash stocks and bonds equal amount of or unencumbered real estate in value (Stat twice the amount the bail. MCLA 780.67 Ann 1970 Cum Supp [57]). * * * any peace “When bail sheriff has been set other provisions officer take bail in accordance with the of sections *8 6 (Stat or 7 and release the MCLA 780.68 Ann 1970 offender”. § Supp 28.872[58]). “Upon depositing Cum provides: Section 6 § person custody sum to the conditions this shall sub- be released from [the 10%] ject (Stat Ann of the bail bond.” MCLA 780.66 § Supp 1970 Cum [56]). § Pressley 309 v. Opinion op the Court pled guilty arraigned not when on He ordinance.12 surety. July hail was set at one $50, 1970 and September date was 22, 1970, His trial set arraignment. days penalty after maximum upon days or fine conviction of the offense is a if $500, surety both.13 could not obtain a Thus, permitted post bond and was not to deposit, required, awaiting he would be while trial, substantially equal to serve a sentence max- prison impose upon imum sentence the court could conviction. generally professional are sureties appears that It they un- are because
unwilling small bonds to write context, it is In this profitable $5. $50 —10% one-surety imposing a effect that the manifest requirement directing court clerk of the and of accept to refuse to sheriff precisely altogether those deny to legislation— be benefitted intended to (No disadvantaged, economically minor offenders. go surety exceptions on make doubt, bondsmen comfort must be small some small bonds, but larger group ac- who are unable to obtain commodation.) (217 (1966), Ingram 2d 623 People 34 Ill rejected Illinois 803),
NE2d constitutionality act. challenge of the Illinois (making that act § act 15 of the Illinois held that It thereby, provisions effect, exclusive of other cases) compensated did barring criminal sureties against unconstitutionally defend discriminate litigants are who because civil in criminal cases ants post post required bond can continue to provision of further held that the bond. The Court per- corresponding our act, the Illinois act, City Code, 38-1-17. Detroit City Code, Detroit 1-1-7. *9 30 Opinion op the Court mitting, deposit, furnishing in lieu the of bail sureties, or without bond with secured deposit equal or of cash and stocks bonds in value to the amount of the or unencumbered real equal estate in value to twice the amount the bail,14 complaining was company surety constitutional and that the deposit security must for full amount of the bail.15
The Court declared:
“Requiring prem- a bond with sufficient sureties is assumption on the ised that economic loss ac- family appear- cused, his or friends, will assure his practice, for ance trial. actual it is not however, family usually the accused his or who suffer the loss nonappearance, professional for but the bondsmen companies. employs insurance If accused professional company bondsman or insurance required make bond, his pay pre- he is the bond regardless appearance mium nonappear- his ance at trial. Hence, the economic loss deterrent loses force when an accused is admitted to bail with professional purpose admitting sureties, persons to bail is frustrated. “Experience that has shown method of allow person ing surety professional to make with a bond accomplish purpose (See not does of bail. Bow Deposit man, The Ten Illinois Per Cent Bail Pro 35.) legislature vision, 1965 Ill L. Forum section 110-8 has determined more needed than is person provision This used when the intended to family member does have the and a friend or designed, appears willing to furnish collateral. It from Supreme Ingram, personal Illinois for decision of the such by compensated accommodations and not for use sureties. See Oaks Lehman, Indigent & The Criminal Process of Cook Defendant, L (1966). U of Ill Forum ruling, effect, Illinois Court’s eliminated com pensated sureties because it is uneconomical for them to furnish full they they collateral to secure bond each write unless can obtain collateral, But, the collateral from the himself. if he has offender acting compensating he can himself without as a conduit. on a bail bond forfeitures to pay ability
the mere Smith-Hurd Comments, Committee (See basis. business are We 145-149.) Stat pp ll Anno I provided of bail methods that the alternative opinion 110-817do not violate the con 110-716and sections shall be bail provision stitutional People v. Ingram, ‘sufficient sureties’.” able by supra, p (Emphasis by Court.) *10 act, The like the Illinois makes no Michigan act, provision for uncollaterallized bonds.18 We surety are satisfied that of the bail plain meaning the 10% act is that the shall be deposit pre- the 10% ferred means traffic offenders and by misde- meanants furnish bail. Alternatively, may, if they “in they lieu” of the wish, deposit, furnish a 10% collaterallized bond with or without It sureties. inconsistent with completely the scheme statutory for a or other officer judge authorized to set bail to a require surety bond instead of a filed bond under the act. The act preserves to the the power to set the of bail, amount but him deprives power to prescribe the form of the bond the secu- rity performance. its
fore the to this view because that fn act, does understood to under the the Illinois act. the Illinois act. Cook of other offenders, of other a operate during surety We are advised [18] In Michigan, 17Section 16Section 6 5) (1966). when provisions bond under legislation. Illinois act or to furnish a not contain not the it was 7 of The be Michigan act, .accused court, mandatory, of law. two-year previously made See Indigent Michigan Michigan bail during had Oaks & permanent persons may, however, continue to furnish provision is how the Illinois act was intended to surety trial and enacted although Defendant, right period act act Lehman, bond. two-year not act was made added corresponds legislation corresponds to decide legislation. directory, before it was made exclusive closely The Criminal Process of ofU experimental period, following whether making to this section of to Ill L We are exclusive, Illinois act the sense that Forum it exclusive the Illinois section persuaded post it was bail (see be- 30 perfectly legislature clear Michigan made its may set bail indirec- those who intention that deposit plan when in 1969 it tion defeat provide that the amount of 1966 act amended the the bail bond be shall “uniform whether ex- bail person for whom bail been set or ecuted has by surety”. a person committing hold that a a
We or a misdemeanor has an traffic offense absolute statutory post bail under de- posit required act and that he not be to furnish bond.
III. extends jurisdiction Recorder’s city state law. ordinances both to violations municipal “inferior court, It functions super- constitutionally-vested subject court” court of the circuit visory general control city § 13), or- (Const when it enforces art co-equal court, free of such But it is dinance. enforcing court as a functions state when it control, *11 law.19 state charge violating
Pressley answer a of held to was Clearly city the and ordinance traffic ordinance. sitting municipal court when set division was as bail in his case. require prayed does not for in case
The relief
superintending
a writ of
control
the issuance of
judges
of the Recorder’s
directed to a
or
plaintiff
rather,
of
asks,
that a writ
Court.20 The
general superintending
over
article confers on the circuit court
does not
practices
served that Const
City
[19]
in
Morcom v. Recorder’s Court
courts
point.
confer
of
of
and
the trial
Detroit v.
In
on our Court
tribunals
Morcom
1963,
courts or of
control over all courts
Wayne
art
inferior
we ruled
superintending
6,
Circuit
Judges
§
4,
any
that
supervisory
confers
the
judge.
Judge
GCR
(1968),
circuit court
control over
1963, 711,
on
(1925),
IV. constitutionality considering of the the elimina- require judicial surety tion of bond, discretion distinguish questions arising we must between under § judicial 1 and under 5 the art the article, of 1963Constitution. depriving judges act, power require
the does bond, our not, opinion, “judicial power violate the vests of the state” in the courts of the state established pursuant under or Constitution. setting To extent that the of bail he an the.
aspect “practice procedure” Supreme might modify provisions legislative Court power “by general enactment in the exercise its [to] modify prac- rules simplify establish, procedure tice and in all courts”. art Const only 6, Supreme No other court, Court, enjoys power. body statutory regulates A considerable law judicial power. and channels the exercise of provisions statutory jurisdiction regarding prosecuting commencing courts, the manner of enforcing judgments, guide, organize suits and Morcom, with the rules of While, as Court. held we power do not have complaint to entertain a in our filed seeking superintending of a concerning issuance writ of control general practices judges, appellate of trial courts court we have the to review an order of a circuit court an action seeking the issuance of an order Sheriff of directed to the County. (Stat See MCLA Supp 28.872[58]) Ann 1970 Cum *12 § quoted part in fn 11. 300 30 Mich Opinion op the Court judicial varying degrees, the function. control, in and impose duty a and which create Statutes adjudicate as controversies, to the courts look well as those directly points speak sub- upon impinge procedural in a sense law, stantive and power. judicial (1967), Muskegon City v. Recently Slater Supreme majority Court our 473,
Mich 466, complete and overhaul revision “A declared: attorney and fees power costs assess amount Michigan and that courts is overdue” in all remedy responsi- place legislature for the
was Supreme bility attorney fees with for costs by amending toAct the Revised Judicature Court adopt provide shall rules imposition and the allow- taxation or of costs attorney ance of fees. The Court concluded authority” legislative Re- “the from the deletion of ap- permit a uniform vised Judicature Act would proach Implicit under in this state- the court rules. acknowledgment ment is that even as to the Court’s fundamentally daily opera- matter which affects tion of the assess costs courts, as does the attorney legislature exercise fees, the measure of control.22 legislative indeed, been have, enactments
Some
with
interference
viewed
unwarranted
judicial power.23
other
line between one
Eddy
127;
126,
Phelps
(1882),
Mich
Similarly,
Mason v.
see
Smedley
129;
v. Soule
123,
Township
(1888),
Lee
v.
General,
Attorney
People,
v.
199;
ex rel.
192,
(1900), 125 Mich
People
dissenting);
justices
(three
(1924),
The setting is a judicial Whether statute.24 largely by lated a judi- us.25 Even if it is not detain function need to re- power judges of function, depriving cial surety willing that offender furnish quire not interfere with his undertaking stand behind does manner of the bail- their in performance judicial function. setting act significantly hail Nor does judicial business. to control power the court’s
erode a mis All a traffic offense or charged persons released on reasonable be are entitled to demeanor or hail, directly permissible deny not hail. It is are indicate data there empirical indirectly. What bonds released on that offenders than those released on likely appear are not less bonds.26 surety Foote, Rev
ulated persons both Parliament but felonies were not bailable or were bailable any crime whatsoever”. ferred on on their own common law all offenses were taries on the 267, 274, offenses of “a and historical note swerable 381, 388, 390; 27.3564); MCLA 780.581 [25] Blaekstone 24 The some Law, While See See most 959, 965; magistrate, origin by statute, particular MCLA 765.1 Boyle, Book if nonjudicial usually judges Coming Law, (1968); Bowman, of the bail reported In re Sanderson very initiative released IV, XXII. Ehrlich’s prisoner Bail Under the Judicial § Book ch and when the but that set enormous cases Constitutional Crisis pat officers. See Daniels v. bail, that “bail IV, et did practice is Ehrlich’s by Blackstone, 133; seq. (Stat justices ch XXII. the Court of nature”, (Stat (1939), MCLA 726.14 appears The Illinois Ten bailable, sheriff, appear. king, nevertheless, prisoners, Blackstone, pp 899-901; Ann courts, probably administrative; Ann pp e.g., 289 Mich § 1970 Cum coroner but Kings Article, 899-901; The 1954 Rev treason, after taken either Bail: peace”, but were People only practice Per Bench (Stat Ann 1962 Rev power awhile, Supp I, murder and some in the discretion Cent Commentaries on other detained accused that at § De 113 U of Pa (1859), statute certain personally “may was then may Bail Paul L acted. See 28.872[1]). magistrate, Commen court bail for be con- et Deposit ancient sheriffs 6 Mich seq.) reg Rev an or L ameliorate conditions legislation, designed This deprive of their constitutional poor to be released on does not con- reasonable bail, upon stitute intrusion inherent impermissible judicial power. the exercise its may, questions responsibility deciding
ultimate trial judges restore to procedure, practice until bond. But the Su- require decrees, judges courts, Court so preme *14 of Court and all alike, trial judges judges to set are bound to accord the bail, others authorized legislative the we judgment respect give that con- stitutional law.
In this connection we note that the Michigan Supreme Court indicated has its approval challenged legislation by adoption its of DCR 2004 which expressly requires bail be set in the district courts in accordance with provisions bail deposit act.27 It would, therefore, ap pear Supreme that the Court does regard the act to be an intrusion upon inherent judicial power.28 Provision, 35, U (1965); of Ill L Forum 39 Lehman, &Oaks The County Criminal Indigent Process of Cook Defendant, U of 584, Ill L (1966); Forum Foote, Coming 672 Constitutional Crisis II, in 1125, Bail: Pa L 1162, U of Rev 1167. We experience advised are the forfeiture Chicago in and in Cook comparable 1969 and expe- favorable years; rience in earlier experience as to the years in earlier see the first three articles cited this footnote. provides: DCR 2004 persons “Bail for arrested for or accused of criminal in- offenses volving traffic or offenses solely misdemeanors will be set for the purpose assuring appearance defendant court for arraignment a scheduled in time and is therefore not to be construed any way punishment; and, as a form of provision bail for persons arrested or involving criminal offenses traffic offenses or misdemeanors shall be made accordance with con- 1966, ditions and intent PAof No 257.” 28That no distinction properly legislatively can be drawn between established and constitutionally provided courts as to funda their integrants, mental 140, re White (1954), see Pressley being power into as on bail came to release before trial.29 a citizen to hold
a check on In judiciary history, be slow light should of that impede requirements superimpose would providing legislation implementation the full obtaining equitable release on bail. means more entirely with the It be consistent would, however, protection statutory right afforded the and constitutional upon furnishing be reasonable bail released prerogative and within the under Const 5 for Court to extend art deposit concept in Illinois, as include, persons accused of the of felonies.30 commission
y. “for himself commenced this action similarly is- The circuit situated”. those it to include to extend writ, sued the other but refused deposit. post a denied the In this we think he erred. concerning GrCR actions, rule class
Our court read before rule it Federal on the modeled class action amendment.31 Whether its recent “spurious”, maintained “hybrid” “true”, *15 only persons class “are so be a claimed if the to impracticable bring them it as to make numerous claim who all the court” before adequate represent fairly [its] “will insure class representation”. spurious cate- this is the
In action—and class rights gory Pressley’s claim falls—the into ; 29 (1961) Reexamined, L J 966 An Yale Bail: Ancient Practice 70 I, L Foote, Coming Crisis in 113 of Pa Bail: U Constitutional 959, (1965). Rev 966 30 report experience. Illinois in 26 a See articles cited fn on 31 in 1966 Rule, Proc, 23, Civ was amended The Federal Fed Rules place in tripartite its eliminate the classification and to substitute a functional classification. Apr Mich Opinion op the Court sought the members of the class to be enforced are “joint” (the “several”, contrasted with “true” action),32 question class there “common is a affecting rights law or fact the several a com sought”. mon 208.1(3). relief is 1963, GCR It has been said that: equity [cita “The class action an invention of was practical necessity tion omitted], mothered providing procedural device so mere numbers large groups would not disable individuals, united enforcing equitable rights from interest, their nor grant immunity equitable wrongs.” them from their
Montgomery Langer (CA Co., Ward & Inc. v. 8, 1948), 168F2d 182, 187. Supreme early an Court, in States The United How) (1853), (16 57 US Smith v. Swormstedt case, 288, quoted, including by language frequently (14 948), L Ed 942, our Court,33observed: parties num- interested in the suit are “Where subject rights erous, their are so liabilities change otherwise, and fluctuation death or possible, very great would not be inconven- without parties, ience, to make all of them and would often- prevent prosecution times the suit to hear- ing. prevent For convenience, and to therefore, justice, portion equity permits failure of a court of parties represent entire interest body, and the decree binds of them the same as if all were before court.” Michigan Supreme a number of cases the recognized
has appropriate that class actions are 32In (GCR the true 1963, class [1]) plaintiff action 208.1 seeks joint to enforce a right and, hybrid action, a several involving adjudication concerning specific property of claims (GCR 1963, [2]). spurious (GCR class action [3]) 208.1 vice”. frequently has “permissive joinder been referred to as a de 33 City Railway Detroit v. Detroit United (1924), Mich 354; Savings American Bank, State Trustee, Sav v. American State ings Bank (1939), *16 Wayne v. there are numerous mem- where
procedural device questions of law fact and common of the class bers affect sought.34 rights relief and common their Recently Ann School District Bond v. Arbor (1970), 702, Court observed: 693, very of a action that the is in nature class
“It member class action individual claim of each scarcely pursuit warrant be such as alone * * * peculiarly repayment. one This situation was adapted each member to a suit. The claim of class not warrant an action, the class alone did in like manner the action demanded members were affected defendant, issue was one legal clarification.” Appeals
The United for the States Court of similarly Second Circuit observed: important function in our serve “Class actions technique establishing judicial system. By where- many can resolved claims individuals be suit both eliminates time, at the same class possibility provides repetitious litigation and obtaining redress small with a method claimants which would otherwise be small claims too litigation.” warrant & individual Eisen v. Carlisle Jacquelin (CA 1968), 391 F2d 560. 555, as present criterion, numerousness case the In the recognized “in It is now met. evolved, it has factors, other such numbers addition mere of its group instability and the whereabouts determining weighed whether members, should bring ‘impracticable all before them it is pp Procedure, James, court’.” Civil of to Pressley alleges 60 inmates are 50 to that there in circumstances similar Jail Dipboye 34; City (1952), 335 Mich Detroit 34 Locke v. Trustee, Savings Bank, 550; American State (1958), Acchione 351 Mich Savings Bank, supra. American State . v *17 constantly both size fluctuates The class own. his larger in a identity class, members. of subjected might persons be who all includes sense, litigation against is practices which this aimed. of District, the claim each School Ann Arbor
As in might action; an warrant not of class member Pressley representing attorneys surely would simpler bond obtain a $50 found it have litigation. prosecute All commence and than to represents Pressley are af- of class members fected in like manner complains the actions he demands legal that clarification. and the issue one protection adaptation action to of the class indigent sensible rights of procedural which was device of this extension important rights equity assure that fashioned Adderly Wain v. go unvindicated. would 1968), court ruled wright (MD FRD 97, Fla, attacking applicants Florida corpus habeas capital maintain a class could penalty in cases death prisoners in the were excess action. There represented sought the size here, as but, to be class subject fluctuations. constant of the class was the class the size of declared both The court stability represented sought lack of and its to be impracticable. joinder There made were common of members involving questions law and fact capital penalty practice cases. death and Florida’s representa The coincidence tives the interests thought and the other members of the class was ad would be of the class insure that the interest representative equately fairly protected parties. The court declared: ‘superior’
“[T]he to other device class action adjudication’ of ‘fair and efficient methods for the duplication in It burdensome claims. eliminates Opinion op the Court essentially peti- what identical individual would appointment problem tions. It eliminates the attorneys fifty fee to serve without than more prisoners. prejudice It would the risk of avoid ‘functionally prisoners might illiterate’ result requiring correspond from individual individual each to and deal with an
attorney, many prisoners, as well as correspondence might find counsel, such confusing.” difficult and Bishop (CA 8, 1968),
In Jackson v. 404 F2d 571, Appeals Eighth the United States Court of for panel Circuit affirmed a of a decision district judges35and ruled that three inmates of Arkansas *18 penitentiary seeking could maintain a action class bar strap the use of the dis other devices ciplinary penal measures Arkansas institutions. 1969), Ellington (MD 300 F v. Tenn, Anderson Supp county chal- an inmate of a workhouse lenged imposing practice addi- of the Tennessee period tional of costs” confinement to “work off pay. three-judge ruled that those unable A court indigent complaint adequately of defined a class imprisoned their fail- who were because rep- plaintiff pay proper ure to costs, that was maintain resentative and that he could class a class action. Pressley fairly
We are satisfied that
can and has
adequate representation
insured
class. See
supra,
Jacquelin,
pp
Eisen
v. Carlisle &
563.
The fact that he has
for himself does
obtained relief
prosecute
continuing
not bar
action for
his
plaintiffs (the
the benefit of the other
members
other
class)
lawyers
that were denied relief.36 Five
Bishop
Jackson v.
Ark,
See
(ED
1967),
Supp
F
36 Washington
Rackley
Lee
Ala,
(MD
1966),
327;
Supp
263 F
Cf.
Orangeburg Regional
v. Board
Hospital
Trustees
(ED SC, 1965),
No costs, J., concurred. Bronson, (dissenting part). Judge J.
O’Hara, Levin *19 deeply I reaches the result which Iwish could reach socially perhaps urgently also. It is desirable needed.
My only difficulty that I cannot, is amend effect, by interpreting legisla- a statute it I think as the ture should have enacted it. precise point Judge over which Levin and I duty responsi-
divide is the nature of the and the bility imposes which I believe the involved statute J. O’Hara, (in Part) Dissent judicial it upon judge which discretion tlie him. vests colleague to mean reads the statute
My esteemed judge only is the to of the set function thereupon, he con- Then, of the bail. amount percent right deposit ten the accused has to cludes (not court less clerk amount with the alternatively any $10), other with sheriff or than or peace instanter. officer, and released including statute, thrust whole me the
To imports a further object in its title, contained as its as is responsibility. act, title judicial prescribes required, “kind” as constitutionally required”. security “the amount well as unequivocal Surely of this read out it difficult to require surety. judge right to language “surety” nugatory the definition To renders do so contains. the statute my under this statute conclusion that it Thus, (1) release discretion: his recognizance; (2) require upon his own accused without his own bond execute (3) require the accused to execute sureties; or or together surety, that term is de- with a bond in the act. fined if, the latter two conditions either of
When, agree my I with and in that fulfilled, then, event, colleague has an absolute that the accused percent sheriff, clerk, the ten peace restraining other and there- him, who is officer upon clearly statute be entitled release as the provides. judiciary not for us in It is amend by “interpretation”. It take about would five per- legislative time to amend minutes the act Judge opinion mit the result authorizes. Levin’s legis- Illinois; if that, That is what was done our *20 O’Hara, (in Part) by J. Dissent what so, lature chooses to do should be done in Michigan. objection this is
I am not troubled Judge proper hold action. not a class I Levin that it is.
Normally, I is all believe should be much this my eyes to the claim that I cannot close written. judges Division of the Traffic and Ordinance all the adopted and have do enforce of Recorder’s Court professional undeviating policy requiring a corporate bonding surety company nature of a in the every with a case in which a bond is re- quired.
Unfortunately, I have no settled record before me which either affirms or denies this contention. problem pressing I Because nature of the myself I do, shall do what dislike to and commit judicially upon hypothesis purpose. for decisional surety” term “one means in the
I that if the hold corporate profes- Division Traffic and Ordinance surety, meaning a clear abuse of the such sional judicial I very of which write the exercise discretion, uphold. any financially “surety” I A read statute responsible person. Judge modify I to hold that would Martin’s order setting any bond in when the conditions one permitted statute followed, the methods are percent of ten thereof an accused entitles release. to his opinion minority holding, my is a I
Since herein impose on cannot, and Ordinance Division. At course, its rationale the Traffic judges
least judicial my court are aware attitude toward a practice represented that, us without factual support, their obtains in court. majority, I I in the would hold
Were further that judges involved court be authorized to O’Hara, J. Part) by (in Dissent panel supplying extent of herein to intervene *21 rec- from their duly abstract authenticated awith practice in their establishing fact, what, ords court really is. point briefed, nor neither raised
Because question myself of whether not I address do fixing of bail is matter of the or not the whole judicial procedural function re- and thus indeed Court. constitution to the served bond If defendant herein has furnished required by I have outlined it manner statute as percent upon deposit of ten thereof he is herein, similarly are all those released, entitled to be situ- Failing ated under the such release, class action. mandamus issue. should
No costs.