Lead Opinion
This is аn appeal from an order of the trial court, releasing the defendant-respondent Currington on bail during the pendency of his appeal from a conviction and sentence of ten years for arson, enhanced by five years for a persistent violator charge. We affirm.
We assume for the purpose of this opinion that the order of the trial judge admitting the defendant to bail is appealable (see I.A.R. 11(c)(6), allowing an appeal of right from аn order made after judgment, affecting the substantial rights of defendant or the State). In any event, the obvious need for resolution of the question presented herein would impel the court to hear this appeal in the exercise of its inherent power. See State v. White,
Following Currington’s conviction, imposition of sentence against him, and the filing of an appeal, Currington moved the trial court for release on bail pending appeal. The State opposed suсh motion, on the basis of Currington’s alleged ineligibility for bail, under I.C. § 19-2905. That statute provides:
“Bail may be allowed to the defendant where good cause is shown, in all cases in which the appeal is from the trial, conviction or sentence for a criminal offense; except that no bail shall be allowed when the defendant has been sentenced for the said criminal offense to death, life imprisonment or for a term of incarceration exceeding fivе (5) years or where there has been an enhanced penalty imposed pursuant to sections 19-2520 or 19-2520A, Idaho .Code.”
Nevertheless, the trial court, on the basis of I.C.R. 46(b), found
“A defendant may be admitted to bail or released upon his own recognizance by the court in which he was convicted pending an appeal upon consideration of the factors set forth in subsection (a) of this rule above unless it appears that the appeal is frivolous or taken for delay. Application for admittance to bail or release upon his own recognizance may be made by a defendant to the appellate court upon a showing in the application that the court in which he was convicted has refused to admit him to bail or release him on his own recognizance.”
Evidence was presented regarding Currington’s suitability for releаse on bail. No question is raised on this appeal regarding such suitability, other than relating to the statute-rule conflict, and we do not address other factors going to his suitability for bond. The trial court granted bail in the amount of $5,000 and imposed certain other conditions upon Currington’s release.
The only argument of substance on this appeal is whether the granting of bail is a matter of substantive law and therefore within the exclusive province of the legislature or whether, as argued by Currington and concluded by the trial court, the question is merely one of procedure and therefore a matter falling within the rule-making authority of the Supreme Court.
A criminal defendant’s right to bail in all but exceptional cases is provided in Idaho Const, art. 1, § 6, which states:
“All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great. Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted.”
That provision confers a right to bail only prior to trial and not following conviction during a pending appeal. In re France,
Our constitution in art. 5, § 13 provides in pertinent part:
“The legislature shall have no power to • deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government ...”
Our legislature has recognized and confirmed the procedural rule-making power of the Supreme Court. I.C. §§ 1-212, 1-213.
Our decision at bottom is whether post-conviction bail is one of substantive right within the prerogative of the legislature, or is rather a procedural consideration governed by the rules of this Court. We hold
“Although a clear line of demarcation cannot always be delineated between what is substantive and what is procedural, the following general guidelines provide a useful framework for analysis. Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated. [Citations] ...
“Since the inherent power to fix bail is grounded in the power to hold a defendant, and thus relates to the manner of ensuring that the alleged offense will be heard by the court, we believe it to be implicit that the right to bail is essentially procedural in nature. Therefore, we hold that CrR. 3.2(h) was validly promulgated by the Supreme Court pursuant to its inherent rule-making authority to prescribe rules of procedure.
“Since the promulgation of rules of procedure is an inherent attribute of the Supreme Court and an integral part of the judicial process, such rules cannot be abridged or modified by the legislature. [Citations] Thus, the right to bail (and release) after verdict and pending appeal in the two cases consolidated and considered in this opinion is governed solely by the provisions of CrR. 3.2(h).” (Emphasis and parenthetical material in original.)
We note that, where conflict exists between statutory criminal provisions and the Idaho Criminal Rules in matters of procedure, the rules will prevail. State v. Lewis,
The fixing of bail and release from custody are matters traditionally within the discretion of the courts. State v. Kerrigan,
The order of the triаl court is affirmed. Costs to respondent. No attorney’s fees on appeal.
Notes
. The appellant State has not asserted any federal question and hence we do not construe the eighth amendment to the United States Constitution.
Dissenting Opinion
dissenting.
Where this Court has just recently declared itself vested with the inalienable and inherent right to promulgate Rules of Evidence which in many instances are clearly substantive enactments and not mere matters of procedure, аny voice heard in dissent is for all practical purposes a futile oral exercise. However, in other days down the road, it may help that the record is here kept straight.
I.C. § 19-2905, as set forth in the majority opinion, is not the full extent of the statutes governing bail on appeal. Since 1864 and throughout territorial days, through the formulation and adoption of our Constitution, and for 90 years of statehood, other than for convictions where the offense was punishable by death, admission to bail to a defendant who has appealed was a matter of judicial discretion. I.C. § 19-2905 prior to the 1980 amendment. During that entire 116-year period, side-by-side with § 19-2905, § 19-2906 provided the conditions of bail:
After conviction, and upon appeal:
*542 2. If judgment of imprisonment has been given, that he will surrender himself in execution of the judgment, upon its being affirmed or modified or upon the appeal being dismissed; or that in case the judgment be reversed, and that the cause be remanded for a new trial, that he will appear in the court to which said cause may be remanded, and submit himself to the orders and process thereof.
For over a century, then, and, of extreme importance, through the move to statehood with the adoption of the Constitution, it has been the legislature which declared the rules for admission to bail, with discretion in the courts as to its allowance in each given case. All of that time the legislature set the qualifications of bail, I.C. § 19-2910; justification of bail, I.C. § 19-2911; and discharge from custody of a defendant on making bail, I.C. § 19-2912, ad infinitum through § 19-2937.
As stated by the majority, “Our legislature has recognized and confirmed the procedural rule-making power of the Supreme Court.” This occurred in 1941.
I.C. § 1-212 provides:
Rule-making power recognized. — The inherent power of the Supreme Court to make rules governing procedure in all the courts of Idaho is hereby recognized and confirmed.
I.C. § 1-213 provides:
Duty to make rules — Limitation. —The Supreme Court shall prescribe, by generаl rules, for all the courts of Idaho, the forms of process, writs, pleadings and motions, the manner of service, time for appearance, and the practice and procedure in all actions and proceedings. Said rules shall neither abridge, enlarge nor modify the substantive rights of any litigant.
The Court’s rule set forth in the majority opinion appears, according to the annotation of the bound volume of over 600 pages of rules of various and sundry kinds, tо have been enacted in December of 1979, effective July 1, 1980. The legislature’s new version of I.C. § 19-2905 was approved by the governor on March 28th, and would have become law May 28th — prior to the effective date of the rule — all of which ■ is interesting, but likely irrelevant. As the majority concedes, the issue is whether the Court has delved into an area of substantive law. Obviously it has, and equally obvious, there is a confrontation between this Court, as presently constituted vis a vis its 1941 mеmbership when it was entrusted with making rules which were strictly procedural, and it is beyond doubt that the legislature is going to have to resort to a constitutional amendment if it intends to prevail.
The majority errs in holding that a defendant’s right to bail in all but exceptional cases exists only prior to trial. According to the majority, this “right” after trial miraculously transforms itself into a procedural matter, which thereby makes it subject to this Court’s rules, even where conflicting statutes have existed for over a cеntury. I fail to understand the majority’s mystical formula by which such a result is reached.
It is true that this Court in two old cases — In re France,
The fact that the Idaho Constitution does not contain any provision either authorizing, prohibiting, or restricting post-conviction bjail does not mean that no such right exists. In fact, such a conclusion is anomalous. It makes little sense to concede that pre-conviction bail is a substantive right but post-conviction bail is a procedural matter. In both instances, the applicability of one’s entitlement to bail impacts upon identical interests, concerns, and rights shared
Whether an individual qualifies for bail is an inquiry pertaining to rights, not procedure. Bail issues involve far more than “essentially mechanical operations of. the courts by which substantive law, rights, and remedies are affected.” Mаjority Opinion, p. 4, quoting State v. Smith,
dissenting:
The majority has characterized the right to bail pending appeal as “procedural,” and as a result of that mischaracterization has voided a substantive law enacted by the legislature based upon a procedural rule of this Court. I dissent. Howеver, the statute dealing with bail on appeal, I.C. § 19-2905, is not directly in conflict with I.C.R. 46(b), as the majority holds. The rule states:
“Rule 46. Bail or release on own recognizance. — ...
“(b) Right to bail or release pending appeal. A defendant may be admitted to bail or released upon his own recognizance by the court in which he was convicted pending an appeal upon consideration of the factors set forth in subsection (a) of this rule above unless it appears that the appeal is frivolous or taken for delay. Application for admittance to bail or release upon his own recognizance may be made by a defendant to the appellate court upon a showing in the application that the court in which he was convicted has refused to admit him to bail or release him on his own recognizance.”
It has always been this Court’s rule of statutory construction that where two statutes can be reasonably interpreted so that there is no conflict between them, they should be so interpreted, rather than interpreted in a way that results in a conflict. State v. Creech,
Even assuming that the statute and rule are in conflict, the majority’s procedural-substantivе analysis is flawed. The majority argues that “[t]he fixing of bail and release from custody are matters traditionally within the discretion of the courts,” and thus bail is procedural. However, merely because the determination of whether or not a person is entitled to bail has been decided by the judiciary over the years does not mean that the entitlement to bail, which historically has been fixed both by Constitution and statute, is a procedural rather than a substantive mattеr. The truth is that there are few more substantive issues in the law than the issue of whether or not a person should be incarcerated, regardless of whether that determination is based upon a sentence of imprisonment or upon the right or denial of bail. There is no more compelling evidence that bail is a substantive issue than the fact
This is the second time in recent years that this Court has, I believe, overstepped the bounds of its authority in determining the distinction between matters substantive and matters procedural. In the case of State v. McCoy,
Whether a matter is substantive or procedural requires a proper analysis under the particular facts of the case, and each branch of government should exercise caution and restraint when approaching the boundary of the other branch’s authority. As Justice McFadden stated in his dissenting opinion in McCoy:
“It is to be kept in mind that defining the limits of authority of the three departments of government, Idaho Const. Art. 2, § 1, is one of great importance and delicacy, and this Court must exercise special caution in this area.” State v. McCoy,94 Idaho at 241 ,486 P.2d at 252 .
This Court should exercise such caution and recognize the legislature’s authority and the substantive nature of the right to bail pending appeal. Failure to exercise such restraint and caution leads to competition or friction between the branches of government and, in some cases absurd results. For example, the result of State v. Smith,
The majority acknowledges that there is no constitutional right to bail pending appeal. Ante at 943. Both the United States Court of Appeals, in Bretz v. Kelman,
While there are procedural aspects of any bail hearing, such as notice, evidentiary and burden of proof standards, etc., the majority opinion, quoting from the Washington Smith eаse, acknowledges that bail has aspects of “[sjubstantive law [which] prescribes norms for societal conduct and punishments for violations thereof.” Ante at 4. These substantive aspects are the community’s interest in protecting its citizens and punishing misconduct, balanced against the defendant’s right to be free of punishment until proven guilty. Once the defendant is found guilty, however, the defendant’s presumption of innocence is gone, and he is presumed guilty on appeal and must show reversible error in order to prevail. In the Matter of Bolitho,
Therefore, if there is no constitutional right to bail on appeal and if, as is now the statutory law in Idaho, there is no legislative right to bail on appeal for the crimes for which this defendant stands sentenced, where does that substantive right come from? Neither the majority opinion in the present case nor the opinion in State v. Smith, supra, relied upon by the majority, has articulated any procedural aspect or intеrest relevant to the right to bail pending appeal. The question of right to bail is wholly substantive at the point of appeal. “The statute challenged herein does not attempt to control a matter in which the courts have ultimate authority. There is no fundamental right to bail on appeal, and the effect of its denial is to require immediate commencement of a sentence rendered by the trial court and is simply another aspect of thе punishment provisions of the statutory scheme.” Spitznas v. State,
This Court has never questioned the right of the legislature to deny bail, either
The defendant in this case was convicted of arson, for which he was sentenced to ten years’ imprisonment, and also was convicted of being a persistent violator of the law, which means that he had at least two prior felony convictions. For being a persistent violator he received an enhanced five-year sentence. As with murderers, the legislature had authority to deny bail to such a convicted and sentenced criminal. This Court errs in ruling otherwise. I dissent.