IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JULY SESSION, 1998 FILED
September 30, 1998
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9710-CR-00462
Appellee )
) DAVIDSON COUNTY
vs. )
) Hon. Seth Norman, Judge
AAA AARON'S ACTION )
AGENCY BAIL BONDS, INC. )
) (En Banc Order)
Appellant )
For the Appellant: For the Appellee:
Thomas L. Whiteside John Knox Walkup
Fowlkes & Whiteside Attorney General and Reporter
172 Second Avenue North
Suite 214 Timothy F. Behan
Nashville, TN 37201-1908 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. (Torry) Johnson III
District Attorney General
Steve Dozier
Asst. District Attorney General
Washington Square, STE 500
222-2nd Avenue N
Nashville, TN 37201-1649
OPINION FILED:
REMANDED
David G. Hayes
Judge
OPINION
AAA Aaron’s Action Agency Bail Bonds, Inc., (AAA), appeals from the en
banc order of the Davidson County Criminal Court suspending AAA’s authority to
write bail bonds in Davidson County.1 AAA raises two issues for our review.
I. “Whether the trial court’s summary suspension of appellant as a
bondsman deprived appellant of a constitutionally protected property
interest;” and
II. “Whether the failure to provide appellant with notice and an
opportunity to be heard when the trial court summarily suspended
appellant was an abuse of discretion.”
Although we find the trial court’s en banc order sufficient to temporarily
suspend AAA’s authority to write bail bonds, we conclude that the notice provided
therein is constitutionally inadequate to satisfy due process concerns. Moreover,
because AAA prematurely filed its notice of appeal to this court, the trial court was
prevented from providing AAA with a hearing on the matter. In the interest of justice
and fairness, the order of the trial court is upheld only to the extent of suspending
AAA’s authority to write bail bonds. However, in all other respects, this cause is
remanded to the Criminal Court of Davidson County to permit that court to amend its
order to provide sufficient notice to AAA of the specific grounds supporting the
court’s action. If such notice is sufficient and AAA responds within twenty days, the
trial court shall conduct a hearing within a reasonable time of AAA’s response.
Analysis
It is without dispute that the trial courts of this state have the full authority to
determine who should be allowed to make bonds in its court and to regulate
professional bondsmen. Gilbreath v. Ferguson, 195 Tenn. 528, 260 S.W.2d 276
1
This court has jurisdiction over this proceeding pursuant to Tenn. Code Ann. § 40-11-
125(d) (1997).
2
(1953); Hull v. State, 543 S.W .2d 611, 612 (Tenn. Crim. App. 1976). Specifically,
Tenn. Code Ann. § 40-11-125(a) provides the trial courts with the authority, after
investigation, to suspend a professional bondsman or other surety from making
bonds if such bondsman or other surety violates any of the laws relating to bail
bonds, or if he is guilty of professional misconduct as defined in Tenn. Code Ann. §
40-11-126 (1997). See also State v. Hodgson, C.C.A. No. 87-142-III (Tenn. Crim.
App. at Nashville, Feb. 24, 1988), perm. to appeal denied, (Tenn. May 31, 1988).
If a trial court suspends a bondsman from making bonds, the bondsman has
a right to receive notice of the action taken and a copy of the charges that brought
about the suspension. Tenn. Code Ann. § 40-11-125(b). If the bondsman files a
written answer within twenty days of the notice denying such charges, the trial court
shall call a hearing within a reasonable time for the purpose of taking testimony and
evidence on any issues of facts made by the charges and answer. Tenn. Code
Ann. § 40-11-125(b).
In the present case, on May 2, 1997, an en banc panel of the Davidson
County Criminal Court entered an order which provided that “[a]s the result of the
actions of the AAA AARON’S ACTION AGENCY BAIL BONDS, INC. . . . on
Wednesday, April 23, 1997, the company is hereby denied the right to further write
bail bonds in the Criminal Courts of Davidson County.” In accordance with Tenn.
Code Ann. § 40-11-125(b), AAA filed a written answer denying any alleged
wrongdoing in response to the court’s order, on May 14, 1997, twelve days after
receiving notice. Sixteen days later, on May 30, 1997, AAA filed a notice of appeal
to this court complaining that no hearing had been held.2
2
In support of its position, the State asserts that the court’s subsequent orders of August
18 and September 26 did in fact provide adequate notice of the trial court’s reasons for
suspending AAA’s privileges to write bail bonds in Davidson County and were but a continuation
of the M ay 2 order .
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The issue before this court is not the propriety of AAA’s practices as a bail
bondsman or the merit of the trial court’s order; rather, the concerns before this
court are the procedural requirements for suspending a bail bondsman’s authority to
write bail bonds.
A. Due Process
The Due Process Clause of the Fourteenth Amendment and Article I, Section
8 of the Tennessee Constitution embody similar procedural protections and
guarantees. Doe v. Norris, 751 S.W.2d 834, 838 (Tenn. 1988); State ex rel. Anglin
v. Mitchell, 596 S.W.2d 779, 786 (Tenn. 1980); Daugherty v. State, 216 Tenn. 666,
674, 393 S.W.2d 739, 743 (1965), cert. denied, 384 U.S. 435, 86 S.Ct. 1601 (1966).
They prevent the government from infringing upon significant property or liberty
interests without first providing notice and an opportunity to be heard at a
meaningful time and in a meaning manner. Cleveland Bd. of Educ. v Loudermill,
470 U.S. 532, 542, 105 S.Ct. 1487, 1493 (1985); Cooper v. Williamson County Bd.
of Educ., 803 S.W.2d 200, 202 (Tenn. 1990), cert. denied, 500 U.S. 916, 111 S.Ct.
2013 (1991). However, before such procedural safeguards are required, several
factors must be established.
1. Protected Interest
First, a constitutionally protected liberty or property interest must be
possessed by the party allegedly aggrieved. Board of Regents of State Colleges v.
Roth, 408 U.S. 564, 569-78, 92 S.Ct. 2701, 2705-06, 2709 (1972). The right to
engage in a chosen business, occupation, or profession without unreasonable
governmental interference or deprivation thereof is both a liberty and property
interest, protected by the due process clauses of the Fifth and Fourteenth
Amendments to the United States Constitution and Article I Section 8 of the
Tennessee Constitution. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at
543, 105 S.Ct. at 1494; see also Livesay v. Tennessee Board of Examiners in
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Watchmaking, 204 Tenn. 500, 322 S.W.2d 209 (1959). Harbison v., Knoxville Iron
Company, 103 Tenn. 421, 53 S.W. 955 (1899), aff’d by, 183 U.S. 13, 22 S.Ct. 1
(1901). Although the bail bond business is closely related to the criminal justice
system requiring strict regulation by the government, it is still a business and once
the court grants the right to engage in such business, the right to pursue that
business becomes a right. Thus, we conclude that the deprivation of one’s right to
engage in the bail bond business is a judicial act that must meet the requirements of
due process of law. Validity, Construction, and Application of Statutes Regulating
Bail Bond Business, 13 A.L.R.3D 618, 638 (1967 & 1997 Supp.); see, e.g., In re
Greene, 130 A.2d 593 (Mun.Ct.App. D.C. 1957); State v. Parrish, 254 N.C. 301, 118
S.E.2d 786 (1961); Smith v. Decker, 312 S.W.2d 632 (Tex. 1958); State ex rel.
Weaver v. Dostert, 300 S.E.2d 102 (W.Va. 1983). But cf., Taylor v. Waddey, 206
Tenn. 497, 334 S.W.2d 733, 735 (1960) (quoting In re Carter, 192 F.2d 15, 18 (D.C.
Cir.), cert. denied, 342 U.S. 862, 72 S.Ct. 89 (1951) (Prettyman, J., dissenting)).
Additionally, there must be a deprivation of that interest by the government.
See Rowe v. Board of Educ. of City of Chattanooga, 938 S.W.2d 351, 354 (Tenn.
1996), cert. denied, -- U.S. --, 117 S.Ct. 1271 (1997) (citation omitted). The Criminal
Court of Davidson County suspended AAA’s right to write bail bonds, thus, depriving
AAA of its right to engage in business and earn a livelihood.
Once it is determined that due process applies, the interests of AAA and the
government must be weighed to determine what process is due and whether
deprivation has occurred. Federal Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240,
108 S.Ct. 1780, 1787 (1988); Board of Regents of State Colleges v. Roth, 408 U.S.
at 569-570, 92 S.Ct. at 2705. In determining what process is due, we are mindful
that the constitutional guaranties are flexible standards based upon the concept of
fairness and reasonableness. 16C C.J.S. Constitutional Law § 967 (1985).
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2. Notice
Due process requires “notice reasonably calculated under all the
circumstances, to apprise interested parties” of the claims of the opposing parties.
McClellan v. Board of Regents of State University, 921 S.W.2d 684, 688 (Tenn.
1996) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70
S.Ct. 652, 657 (1950)). The purpose of due process requirements is to notify the
individual in advance in order to allow adequate preparation and reduce surprise.
Id. (citing Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 14, 98 S.Ct.
1554, 1562-63 (1978)). In other words, the contents of the notice cannot be
ambiguous or obscure; they must clearly inform the person of the nature of the
charge against him. See Turk v. Franklin Special School Dist., 640 S.W.2d 218,
220 (Tenn. 1982). To comport with these notions of fair play, the means employed
should equal or exceed that which one desirous of actually informing the opposite
party would employ. Id. (citations omitted). Under these standards, the trial court’s
May 2 order suspending AAA from writing bail bonds “as the result of the actions of
[AAA] on Wednesday, April 23, 1997" cannot be held sufficient to adequately
apprise AAA of the charges to be met. Thus, notice was constitutionally inadequate.
3. Opportunity to be Heard
In addition to guaranteeing a person with notice, due process provides an
opportunity to be heard. The opportunity to present reasons, either in person or in
writing, why a proposed action should not be taken is a fundamental due process
requirement. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 546, 105 S.Ct. at
1495 (citation omitted). However, procedural due process does not necessarily
require a prior hearing in every instance. Federal Deposit Ins. Corp. v. Mallen, 486
U.S. at 240, 108 S.Ct. at 1788; State ex rel. Hayes v. Civil Service Com’n of
Metropolitan Government of Nashville and Davidson County, No. 01-A-01-9002-
CH00061 (Tenn. App. at Nashville, Oct. 31, 1990), perm. to appeal denied, (Tenn.
May 26, 1992).
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The Due Process Clause requires the provision of a hearing “at a meaningful
time.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 547, 105 S.Ct. at 1496. A
post-decision hearing will suffice as long as it is held within a reasonable time in light
of the issues and interests at stake. Id. (citations omitted). Although a post-decision
hearing is often sufficient, the promptness in which one is held is of constitutional
concern. Civil Service Com’n of Metropolitan Government of Nashville and
Davidson County, No. 01-A-01-9002-CH00061 (citing Brock v. Roadway Express,
Inc., 481 U.S. 252, 267, 107 S.Ct. 1740, 1750 (1987); Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. at 547, 105 S.Ct. at 1496; Barry v. Barchi, 433 U.S. at 66, 99
S.Ct. at 2650). Even though there is a point at which an unjustified delay in
completing a post-deprivation proceeding would become a constitutional violation,
the significance of such a delay cannot be evaluated in a vacuum. Federal Deposit
Ins. Corp. v. Mallen, 486 U.S. at 242, 108 S.Ct. at 1788. No precise rules exist to
determine whether a delay in holding a hearing rises to the level of a constitutional
problem. Rather, the importance of the private interest and the harm to this interest
occasioned by the delay; the government’s interest and its reason for the delay; and
the likelihood that the pre-hearing decision is erroneous are examined and weighed
against each other. Federal Deposit Ins. Corp. v. Mallen, 486 U.S. at 242, 108 S.Ct.
at 1788.
In the present case, our determination of whether the trial court’s delay in
providing AAA with a hearing is unreasonable is skewed by AAA’s action of filing a
notice of appeal to this court sixteen days after its answer to the Criminal Court was
filed. By AAA’s filing of a notice of appeal, the trial court was divested of jurisdiction
over the matter and was, therefore, without the authority to hold a post-decision
hearing. See State v.Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996); State v.
Applegate, No. 01C01-9608-CR-00370 (Tenn. Crim. App. at Nashville, Mar. 17,
1998), reh’g denied, (Apr. 16, 1998). Thus, the trial court’s August 18,1997 order,
as it relates to the present matter, supra note 2, is void as it was beyond the
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jurisdiction of the court. Pendergrass, 937 S.W.2d at 837. From another
perspective, AAA’s appeal was filed prematurely as it had not exhausted all first tier
review procedures. In effect, AAA’s action of filing a notice of appeal sixteen days
after it filed its response to the court’s May 2 order can only challenge the
reasonableness of the sixteen day delay between the filing of a response and the
notice of appeal.
Because no evidence has been presented from which this court can weigh
the interests involved, we cannot conduct a thorough balancing of the competing
interests. However, we remain cognizant of the fact that, “inherent in any
bureaucracy, . . . is a certain amount of inefficiency and delay, and the mere
allegation of delay without an explanation of why the delay is unreasonable does not
support a claim for due process.” Slugocki v. United States by and through Dept. of
Labor, 988 F. Supp. 1443, 1447 (S.D. Fla. 1997). Accordingly, even though AAA
was denied its source of livelihood, we cannot conclude that sixteen days
constituted an unreasonable delay.
Conclusion
The en banc order of May 2, suspending AAA’s authority to write bail bonds
in the Criminal Courts of Davidson County, remains in effect. This case is
remanded to the Criminal Court with instructions to amend, with particularity, the
grounds upon which it relies in suspending AAA’s authority to write bonds. As
statutorily provided, if AAA files a written answer within twenty days of the notice
denying such charges, the trial court shall call a hearing within a reasonable time for
the purpose of taking testimony and evidence on any issues of facts made by the
charges and answer. Tenn. Code Ann. § 40-11-125(b).
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
___________________________________
PAUL G. SUMMERS, Judge
___________________________________
JERRY L. SMITH, Judge
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