A criminal rule giving trial courts authority to order defendants to post a cash payment for 10 percent of their bail was ruled unconstitutional today by the Ohio Supreme Court.

Summit, Wayne and Licking Counties!

The rule denies the right of criminal defendants to be “bailable by sufficient sureties,” as required by the Ohio Constitution, Justice Sharon L. Kennedy wrote in the court’s 5-2 majority opinion. The majority determined that the Licking County Clerk of Courts and the Wayne County Clerk of Courts must accept surety bonds for the full bail amount even if their courts required, under Criminal Rule 46(A)(2), a 10 percent cash payment.

The Supreme Court declined to award damages to one of the bail bonds companies that filed the action.

In 2011, a Wayne County Common Pleas Court judge set bail for defendant Shannon Rowe at $5,000 and required a 10 percent cash deposit for his release. A bail bondsman for a company run by Anthony Sylvester tried to post a surety bond for the full $5,000 for Rowe’s release, but the clerk of courts refused to accept it because the court had required a $500 cash deposit. Sylvester filed a writ of mandamus with the Ohio Supreme Court in October 2012, asking the court to order the common pleas court clerk to accept surety bonds in all cases in which bail is set by the court.

Woody Fox, also an owner of a bail bonds company, encountered the same situation in Licking County. Fox filed a writ of mandamus with the Supreme Court as well in March 2013. In addition, he asked the court for damages for business lost because of the trial court’s practice.

The Ohio Supreme Court consolidated the cases for oral arguments and its decision.

While the right to be “bailable by sufficient sureties” in the Ohio Constitution belongs to the defendant, Justice Kennedy explained that the Supreme Court has held that bail bonds companies have sufficient beneficial interests in nullifying a clerk’s existing bond policy to bring a mandamus case.

She pointed out that the purpose of bail is to make sure a defendant appears later in court. After amendments to the bail provision of the Constitution went into effect in 1998, the court amended Crim.R. 46 to specify the types of bail a court could set, she noted.

In 2005, the Ohio Supreme Court decided Smith v. Leis, which examined the constitutionality of the cash deposit described in Crim.R. 46(A)(3). Finding the provision unconstitutional, the court in Leis ruled that the 1998 amendments, which permitted courts to decide the type, amount, and conditions of bail and to deny bail to defendants in some cases, did not limit the defendant’s access to a surety once bail was granted, Justice Kennedy explained. However, she noted, the court did not address the constitutionality of Crim.R. 46(A)(2), the bail requirement at issue in this case.

“We hold … that Crim.R. 46(A) is unconstitutional insofar as it allows a court to require a bond secured by a 10 percent cash deposit under Crim.R. 46(A)(2) as the only option, to the exclusion of a surety bond,” Justice Kennedy wrote. “Bail under Crim.R. 46(A)(2) is still an option if a surety bond is accepted as an alternative. Thus, if a court decides that it will accept the defendant’s own bond only if it is secured by a 10 percent cash deposit, it must accept, as an alternative, a surety bond for the full amount of bail, with no deposit required. Crim.R. 46(A)(2) does not state this alternative, as Crim.R. 46(A)(3) does, but the Constitution requires it.”

“This is not to say that a defendant must use a commercial bonding agent; a constitutionally sufficient surety may include any person who can deposit the cash or post a reliable bond on the defendant’s behalf,” she continued.

“[I]n setting bail, it is of no consequence to the court the method by which it is posted,” she added.
“[I]n reaching this conclusion, we neither acknowledge nor preserve a constitutional right of business for commercial bail bondsmen.”

The court declined to award damages to Fox because it ruled that the court officials have political subdivision immunity and were acting within the scope of their duties when setting and enforcing bail based on Crim.R. 46(A)(2).

Justice Kennedy’s opinion was joined by Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger, Judith L. French, and William M. O’Neill. Justices Paul E. Pfeifer and Terrence O’Donnell each dissented in separate opinions.

In his dissent stating that he would have denied the writs, Justice Pfeifer reasoned that commercial bail bondsmen do not have a constitutional right to provide sureties.

“In this case, the judges required a deposit in cash,” he wrote. “Accordingly, defendants were accorded a sufficient surety, even though the requirement does not allow a commercial bail bondsman to be the surety. … Nothing in this case suggests that the judges abused their discretion. The conditions set by the judges were not onerous and did not deny bail to those entitled to it. In fact, the conditions set by the judges allow defendants to post bail at a much lower cost than when they use a bail bondsman.”

Justice O’Donnell asserted in his dissent that the case was “procedurally flawed,” because the real parties in interest, those accused of committing offenses, are not seeking a change in the bonds.  Rather, he concluded, the bond agents here seek to post a surety bond instead of the 10 percent bonds as ordered by the court.

“In my view, bondsmen have no clear legal right to post a surety bond for another in the first instance — the right to bail belongs to the person accused of a crime,” he wrote. “I am persuaded that the proper procedure in a case of this distinction is for the accused to move the court for an alternate form of bail and upon denial, to seek review of the discretion exercised by the court in setting bail by filing a complaint for a writ of habeas corpus.”

2012-1742 and 2013-0364. State ex rel. Sylvester v. Neal, Slip Opinion No. 2014-Ohio-2926.