Smith v. Leis

Lundberg Stratton, J.,

concurring in part and dissenting in part.

{¶ 84} Although I agree with the majority’s determination that this matter is not moot because it is capable of repetition yet evades review, I disagree with the conclusion that cash-only bail violates the Ohio Constitution. In my view, the plain language of the Constitution allows cash-only bonds. The majority’s interpretation of the provisions at issue in this case improperly limits judicial discretion in fashioning appropriate types and amounts of bail. Therefore, I respectfully dissent.

{¶ 85} In my view, the primary purpose of bail under Section 9, Article I of the Ohio Constitution is to ensure the defendant’s appearance and submission to the judgment of the court. See Ex Parte Milburn (1835), 34 U.S. (9 Pet.) 704, 710, 9 L.Ed. 280 (“A recognizance of bail, in a criminal case, is taken to secure the due attendance of the party accused”); Reynolds v. United States (1959), 80 S.Ct. 30, 32, 4 L.Ed.2d 46 (Douglas, Circuit Justice) (“The purpose of bail is to insure the defendant’s appearance and submission to the judgment of the court”). I believe that with today’s decision we are moving away from the intention of the framers of our Constitution.

{¶ 86} With a November 1997 vote, the people of the state of Ohio amended Section 9, Article I of the Ohio Constitution to read: “Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail.” As the majority notes, this court then modified Crim.R. 46 in light of this constitutional amendment to allow “[a] court, at any time, [to] order additional or different types, amounts, or conditions of bail.” The General Assembly also responded to the amendment by enacting R.C. 2937.222, which details the procedure a judge must use in denying bail to a person charged with a noncapital offense, but remains silent as to permissible types or amounts of bail.

{¶ 87} The linchpin of the majority’s analysis is that Section 9’s “sufficient sureties” clause — “[a]ll persons shall be bailable by sufficient sureties” — provides that, with certain exceptions not at issue here, an accused has a right to be bailed out by “ ‘[a] person who is primarily liable for the payment of another’s debt or the performance of another’s obligation,’ ” quoting the definition of “surety” in Black’s Law Dictionary (8 Ed.2004) 1482. With “surety” defined in this manner, the majority concludes that the only way to give effect to Section 9’s language permitting a court to “determine at any time the type, amount, and conditions of bail” is to prohibit a court from imposing any type of bail that does not allow a third party to assume the accused’s bail obligation.

*325{¶ 88} In my view, the majority’s use of Black’s Law Dictionary to define the term “surety” too narrowly circumscribes the “sufficient sureties” clause, which, rather than specifically associating the bailing process with commercial bonding or some other secured transaction, merely provides the judge discretion in ensuring that the accused will appear for hearing. Indeed, both Section 9 and Crim.R. 46(E) demonstrate this principle by authorizing courts to determine “at any time” the type, amount, or conditions of bail.

{¶ 89} Moreover, the majority’s construction of Section 9 renders superfluous the provisions in R.C. 2937.22 and Crim.R. 46 that allow a judge to impose a cash-only bond. See R.C. 2937.22(A), granting judges the authority to impose bail through “[t]he deposit of cash by the accused or by some other person for him,” and Crim.R. 46, which characterizes “the deposit of cash, at the option of the defendant” as a permissible type of bail. In other words, the majority’s view of the “sufficient sureties” clause necessarily prevents the operation of these sections, since a court is prohibited from imposing any type of bail that does not allow a third party to assume the accused’s bail obligation. Nothing in the Ohio Constitution, the Ohio Rules of Criminal Procedure, or the Ohio Revised Code suggests, as the majority has concluded, that a judge may not set a cash-only bond.

{¶ 90} Recently, the Iowa Supreme Court reviewed this very issue, noting that the Iowa Constitution’s “sufficient sureties” clause “was likely patterned on several state constitutions [including Ohio’s] that included sufficient sureties clauses drafted before commercial bonding emerged.” (Emphasis sic.) State v. Briggs (Iowa 2003), 666 N.W.2d 573, 583, fn. 6. After an exhaustive historical analysis, the Iowa Supreme Court concluded that personal, monetary, and property sureties were all more well-known methods of securing a bond when the Iowa Constitution was adopted — more than 40 years after the Ohio Constitution became effective in 1802. Id. at 583. Therefore, the Briggs court concluded, the core purpose of the sufficient-sureties clause “was to guarantee a bailable individual access to a surety of some form. However, * * * the framers did not intend that such access be unfettered or tied specifically to a commercial bonding process.” Id. at 581-582. Accordingly, the Briggs court held that imposing a cash-only bond does not violate Iowa’s sufficient sureties clause. Id. at 583.

{¶ 91} Likewise, with respect to our Constitution, drafted even earlier than Iowa’s, it seems implausible that the framers intended Ohio’s “sufficient sureties” clause to favor newly emerging methods of surety — commercial bonding and other secured transactions — to the exclusion of a traditional cash-only surety method. See id. at 583, where the Briggs court determined that “[w]hile it is possible that our framers had both traditional and commercialized surety in mind when drafting the sufficient sureties clause, we do not believe the traditional form *326of surety had been fully eclipsed nor was the commercial form truly ascendant. At most, our framers had both forms in mind. To conclude the sufficient sureties clause extends an unfettered right to a commercial bail bondsmen [sic] contradicts the language of our constitution as well as historical reality.” (Footnote omitted.)

Squire, Sanders & Dempsey, L.L.P., and Pierre H. Bergeron, for appellant. Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for appellee. Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Stephen P. Carney, Senior Deputy Solicitor, and Peter M. Thomas and Chelsea S. Rice, Assistant Solicitors, for Attorney General of Ohio. Richard A. Magnus, urging reversal for amicus curiae, Ohio Association of Criminal Defense Lawyers.

{¶ 92} The primary purpose of bail is to ensure that the accused will be present at trial, and interpreting the “sufficient sureties” clause to provide for multiple bond forms satisfies this purpose. The majority’s interpretation of the clause, therefore, both overlooks its historical context and erodes the courts’ ability to ensure that the accused will return for trial.

{¶ 93} The language of our newly amended Constitution is clear. Section 9, Article I of the Ohio Constitution reads: “Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and conditions of bail.” Accordingly, because Section 9, Article I explicitly provides that “the court may determine at any time the type, amount, and conditions of bail,” and because I believe that the founders intended the “sufficient sureties” clause to confer discretion upon courts in administering the bailing process, I would hold that the imposition of a cash-only bond does not violate the Ohio Constitution. And, since neither the Ohio Revised Code nor the Ohio Rules of Criminal Procedure prohibit cash-only bonds, I respectfully dissent and would reverse the judgment of the court of appeals.

Resnicic and O’Donnell, JJ., concur in the foregoing opinion.