132 Nev., Advance Opinion iji
IN THE SUPREME COURT OF THE STATE OF NEVADA
RICHARD JUSTIN, D/B/A JUSTIN No. 67786
BROS BAIL BONDS; AND
INTERNATIONAL FIDELITY
INSURANCE COMPANY,
Petitioners,
FILED
vs. JUN 3 0 2016
THE SECOND JUDICIAL DISTRICT IE K. LINDEMAN
C - ER F. R CQU
COURT OF THE STATE OF NEVADA, BY
IN AND FOR THE COUNTY OF CHIEF DP C
WASHOE; AND THE HONORABLE
JANET J. BERRY, DISTRICT JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Original petition for a writ of mandamus challenging the
denial of a motion to exonerate a bail bond.
Petition denied.
Richard F. Cornell, Reno,
for Petitioners.
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno,
for Respondents.
Adam Paul Laxalt, Attorney General, Carson City; Christopher. J. Hicks,
District Attorney, and Keith G. Munro, Deputy District Attorney, Washoe
County,
for Real Party in Interest.
BEFORE DOUGLAS CHERRY and GIBBONS, JJ.
SUPREME COURT
OF
NEVADA
(0) I947A I - Zu-Lco
OPINION
By the Court, DOUGLAS, J.:
In this writ petition challenging a district court order denying
exoneration of a bail bond, we are asked to consider whether Nevada's
statutory scheme governing bail bonds provides for automatic exoneration
of a surety bond when a defendant is remanded to custody or convicted.
We conclude that NRS 178.509's plain language does not espouse such an
intent. Accordingly, we deny writ relief.
FACTS
On September 18, 2013, Norman Dupree was arrested and
incarcerated in Washoe County Jail. Dupree's bail bond was set at
$25,000. Petitioners Justin Bros Bail Bonds and International Fidelity
Insurance Company (collectively Justin Bros) 1 posted Dupree's bond (bond
number one). The respective bond agreement provided that Dupree would
answer to the charges specified and be amenable to the orders and process
of the court. The agreement further specified that if Dupree failed to meet
its conditions, Justin Bros would pay the State of Nevada $25,000.
On January 30, 2014, while out of custody on bail, Dupree
appeared before the Second Judicial District Court for arraignment.
During the hearing, the district court ordered Dupree to complete drug
testing. Dupree tested positive, and consequently, the district court added
supervision to the conditions of his bail and rescheduled his arraignment
for March 18, 2014.
'Justin Bros is the agent of International Fidelity Insurance
Company.
SUPREME COURT
OF
NEVADA
2
(0) 1947A .Caiip
Dupree was remanded to custody based on a pretrial
supervision violation on January 31, 2014. Bonafide Bail Bonds then
posted a $20,000 bond (bond number two) on February 3, 2014, to secure
Dupree's rerelease from custody. Justin Bros did not attempt to exonerate
bond number one during the time Dupree was incarcerated.
On March 18, after Dupree failed to appear for his
arraignment, the district court issued notices of intent to forfeit. The
district court provided that bond number one and bond number two would
be declared forfeited in 180 days under NRS 178.506, 178.509, and
178.514 and noted that Dupree's failure to appear for his scheduled
arraignment constituted a breach of the agreed-upon conditions of bail.
On March 21, the district court issued a bench warrant, and set bond at
$50,000, cash only. But according to Dupree, when he attempted to
surrender himself on March 21, the Washoe County Sheriffs Office did not
take him into custody because the bench warrant was not entered in the
justice system records.
Thereafter, Dupree surrendered himself to Bonafide. In turn,
Bonafide surrendered him to the Washoe County Sheriffs Office on
May 14, 2014, and bond number two was exonerated. Dupree's
arraignment was rescheduled for June 10, 2014, and Justin Bros, without
seeking to exonerate bond number one, posted another bond for $20,000
(bond number three) to secure Dupree's release pending the June
SUPREME COURT
OF
NEVADA
3
(0) I947A AD.
arraignment. 2 Dupree failed to appear for the June arraignment, and the
district court ordered that bond number three be forfeited.
Dupree's counsel subsequently requested a status hearing,
which was scheduled for July 24, 2014. Again, Dupree failed to appear.
The district court took no further action, noting that the bench warrant
with bail set at $50,000 was still active.
In August 2014, Justin Bros filed a motion for exoneration of
bond number one, arguing that it was never informed of Dupree's June 10
arraignment and that it was unclear whether Dupree was informed.
Justin Bros also argued that notwithstanding Dupree's failure to appear
in court on June 10, bond number one should have been exonerated when
the court revoked Dupree's supervised bail in January or when Bonafide
posted bond number two in February, allowing Dupree to be rereleased.
Respondent Second Judicial District Court Judge Janet Berry
denied Justin Bros' motion, observing that: (1) Justin Bros did not attempt
to• exonerate bond number one while Dupree was in custody from
January 31 through February 3, or after Bonafide surrendered Dupree to
custody on May 14, but instead posted bond number three; (2) Dupree
failed to appear for his arraignments, had yet to be arraigned, and
remained out of custody despite Justin Bros' acknowledgment that it had
been in contact with Dupree; and (3) a bench warrant had been issued.
The court concluded that, because Dupree had not appeared before it since
January 30, 2014, bond number one could not be exonerated. On
2Although the $50,000 cash only bond was still in place, because it
did not appear in the justice system records, Dupree was released on a
$20,000 bond.
SUPREME COURT
OF
NEVADA
4
(0)1947A
October 6, 2014, the district court entered a judgment of forfeiture for
bond number one.
On October 23, 2014, Justin Bros filed a motion for
reconsideration or an alternative order to set aside judgment, arguing that
when Dupree's release was revoked on January 31, and he was taken back
into custody, bond number one should have been exonerated pursuant to
NRS 178.509(1)(b)(4) (providing that the court shall not exonerate the
bond before the date of forfeiture unless the defendant is "being detained
by civil . . . authorities"). Justin Bros also argued that when a new bail
was set for the same charges and Bonafide posted bond number two, bond
number one was automatically exonerated, as custody of Dupree then
belonged to Bonafide. Further, Justin Bros maintained that because the
$50,000 cash-only warrant had not been entered into the justice system
records, Dupree was not held in custody after Bonafide turned him in, but
instead was rebailed on bond number three, which replaced bonds one and
two and therefore exonerated those bonds.
While Justin Bros' motion was pending, Dupree surrendered.
At that time, bond number three was exonerated. On December 8, 2014,
Justin Bros filed a reply in support of its motion for reconsideration,
pointing out that it had since surrendered Dupree to Washoe County
authorities, and that surrender took place within the statutory 180-day
forfeiture time limit. The district court denied Justin Bros' motion,
finding that Justin Bros had not presented any different evidence or
persuasive legal authority to support reconsideration, or demonstrated
that the court's forfeiture judgment was erroneous to justify setting it
aside.
SUPREME COURT
OF
NEVADA
5
(0) 1947A e
Following Dupree's guilty plea conviction and sentencing,
Justin Bros filed a motion to declare the bond forfeiture judgment
unenforceable or completely satisfied, or to exonerate bond number one.
Justin Bros argued that bond number one should have been exonerated by
operation of law under NRS 178.509(1)(a), NRS 178.512(1)(a)(1), NRS
178.514, NRS 178.522, NRS 178.526, and People v. Int? Fid. Ins. Co., 138
Cal. Rptr. 3d 883, 886-87 (Ct. App. 2012). 3 Justin Bros maintained that
the following events triggered bond number one's exoneration: Dupree's
remand to custody on January 31, 2014; Dupree's attempt to surrender to
the Washoe County Sheriffs Office in March 2014; Bonafide's surrender of
Dupree to custody on May 14, 2014, on bond number two; Justin Bros'
surrender of Dupree to custody on bond number three, which occurred
within 180 days of the court's notice of intent to forfeit bond; and Dupree's
guilty plea and sentencing while in custody.
The district court denied the motion, finding that Justin Bros
did not timely address the forfeiture of bond number one. In addition, the
district court concluded that Justin Bros' reliance on Accredited Surety
was grounded in California's penal code, providing for automatic
exoneration, whereas no similar codification exists under Nevada law.
3 JustinBros cited to International Fidelity, 138 Cal. Rptr. 3d at 886-
87, for the proposition that because the surety's responsibilities are based
on its constructive custody of thefl defendant, when the defendant is
remanded to custody, the surety no longer has responsibility for the
defendant and the court "must act on its own motion to exonerate the
bond, and if it fails to do so, exoneration is accomplished by operation of
law."
SUPREME COURT
OF
NEVADA
6
1 1.1) 1947A e
Justin Bros now challenges the district court's order through an original
petition for a writ of mandamus
DISCUSSION
A writ petition is the proper vehicle for challenging orders
originating from ancillary bail bond proceedings. All Star Bail Bonds, Inc.
v. Eighth Judicial Dist. Court, 130 Nev., Adv. Op. 45, 326 P.3d 1107, 1109
(2014). A writ of mandamus may issue to compel the performance of an
act required by the law, or to control a manifest abuse of discretion. Id.
Therefore, the question is whether the "district court manifestly abused its
discretion in deciding whether to exonerate a bail bond." Id.
This petition presents an issue of statutory interpretation,
namely, whether provisions of NRS Chapter 178 required the district
court to exonerate bond number one or to set aside the forfeiture
judgment. Statutory interpretation, even in the context of a writ petition,
is a question of law that we review de novo. See All Star Bonding v. State,
119 Nev. 47, 49, 62 P.3d 1124, 1125 (2003). When the plain language of a
statute establishes the Legislature's intent, we "will give effect to such
intention." We the People Nev. v. Miller, 124 Nev. 874, 881, 192 P.3d 1166,
1170-71 (2008).
Nevada law does not provide for automatic exoneration of a bail bond
Justin Bros argues that various events, including Dupree's
remand to custody on two occasions and his subsequent releases secured
by bond numbers two and three, Dupree's attempt to surrender himself,
Dupree's final surrender to Washoe County authorities through Justin
Bros' bondsman, and Dupree's eventual guilty plea and sentence while in
custody, required bond number one's exoneration by operation of law or
that the bond forfeiture judgment be set aside. Justin Bros asserts that
the district court "had no discretion and no legal authority to do anything
SUPREME COURT
OF
NEVADA
7
(0) I947A
but exonerate the [blond." In contrast, the State on behalf of Judge Berry
argues that the district court may not exonerate a bail bond in the absence
of statutory authority, and because no such authority existed here, the
court was prohibited from ordering exoneration. We agree.
NRS 178.509 provides:
1. If the defendant fails to appear when the
defendant's presence in court is lawfully required,
the court shall not exonerate the surety before the
date of forfeiture prescribed in NRS 178.508
unless:
(a) The defendant appears before the court
and the court, upon hearing the matter,
determines that the defendant has presented a
satisfactory excuse or that the surety did not in
any way cause or aid the absence of the defendant;
or
(b) The surety submits an application for
exoneration on the ground that the defendant is
unable to appear because the defendant:
(1) Is dead;
(2) Is ill;
(3) Is insane;
(4) Is being detained by civil Or
military authorities; or
(5) Has been deported,
and the court, upon hearing the matter,
determines that one or more of the grounds
described in this paragraph exist and that the
surety did not in any way cause or aid the absence
of the defendant.
2. If the requirements of subsection 1 are
met, the court may exonerate the surety upon
such terms as may be just.
SUPREME COURT
OF
NEVADA
8
(0) 1947A e
The language of NRS 178.509 plainly prohibits courts from
exonerating a bond for any reason other than those set forth under
subsection 1. All Star Bail Bonds, 130 Nev., Adv. Op. 45, 326 P.3d at
1110. It establishes a two-step approach to exonerate a bond after a
defendant fails to appear for a court proceeding. In the first step,
exoneration of the bond may be initiated by the defendant or the surety.
The defendant may initiate the process by appearing in court before the
date of forfeiture, at which time the district court must have determined
that either the defendant provided a satisfactory excuse or that the surety
did not aid in the defendant's absence. In the alternative, the surety may
initiate the exoneration process by application. When the surety submits
an application, the district court must have determined that the surety did
not aid in the defendant's absence and that the defendant is unable to
appear because he or she is dead, ill, insane, being detained by civil or
military authorities, or has been deported. Thus, the first step is complete
if the district court makes findings pursuant to either option. At step two,
the district court may exonerate a bond Importantly, if the district court
does not find that one of the conditions in the first step exists, then it
"shall not" have the discretion to exonerate a bond. NRS 178.509(1).
A plain reading of NRS 178.509 not only fails to support
Justin Bros' argument that bond number one was exonerated by operation
of law, but it demonstrates quite the opposite. Exoneration is, in fact,
prohibited after a defendant fails to appear, save certain limited
circumstances. All Star Bail Bonds, 130 Nev., Adv. Op. 45, 326 P.3d at
1110 (noting that NRS 178.509(1)'s use of the words "shall not"
demonstrates the Legislature's intent to prohibit the district court's
discretion to exonerate a bond for any reasons other than the five
SUPREME COURT
OF
NEVADA
9
(0) 1947A 0
conditions listed in the statute). Indeed, even if one of the enumerated
circumstances is met, exoneration is not mandatory. State V. Stu's Bail
Bonds, 115 Nev. 436, 438, 991 P.2d 469, 470-71 (1999) ("Once the
requirements of NRS 178.509(1) are met, the decision to grant exoneration
of a bail bond rests within the discretion of the district court." (citing NRS
178.509(2)).
Here, it is undisputed that Dupree failed to appear for his
arraignments, thereby breaching the agreement to answer the charges
specified and to be amendable to the court process. Consequently, the
district court was prohibited from exonerating bond number one, unless
one of NRS 178.509(1)'s enumerated conditions materialized. But the
district court did not find that Justin Bros did not aid Dupree's absence.
To the contrary, the district court found that Justin Bros was admittedly
in contact with Dupree, but failed to surrender him to the proper
authorities. In addition, the district court did not make findings as to
Dupree's reason for failing to appear at his arraignment. 4 Thus, according
to the undisputed facts, and in contrast to Justin Bros' argument, the
district court would have abused its discretion by proceeding to exonerate
Justin Bros' bond.
4JustinBros' argument that bond number one should have been
exonerated pursuant to NRS 178.509(1)(b)(4) because he was taken into
custody lacks merit. The appropriate inquiry is whether his detainment
was the reason for his failure to appear.
SUPREME COURT
OF
NEVADA
10
(0) 1947 A e
Because we conclude that the district court applied NRS
178.509 properly, we deny writ relief.
We concur:
Gibbons
SUPREME COURT
OF
NEVADA
11
i(0) 1947A e