Siroky v. Richland County

                               No.    94-508
              IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     1995


LYNNETTE SIROKY, Trustee,
             Plaintiff and Respondent,
     v.
RICHLAND COUNTY,
             Defendant and Appellant



APPEAL FROM:       District Court of the Seventh Judicial District,
                   In and for the County of Richland,
                   The Honorable Richard G. Phillips, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                   Mike Weber, Richland County Attorney,
                   Sidney, Montana

             For Respondent:
                   Monte J. Boettger, Attorney at Law,
                   Lewistown, Montana
                          kJ


                                 Submitted on     Briefs:   March 23, 1995

          API? 2 5 19%                         Decided:     April 25, 1995
Justice W. William Leaphart delivered the Opinion of the Court.


       Plaintiff, Lynnette Siroky, brought suit in District Court,

Seventh Judicial District, Richland County, to recover damages from

Richland County for the conversion of interest earned on a $50,000

cash bond deposited with the District Court to satisfy a condition

of bail in a criminal action.       The District Court granted summary

judgment in favor of Siroky and Richland          County appeals. We

affirm.

Factual Backqround

       Lawrence Sack is the individual who deposited the $50,000 bond

at    issue.   Lynnette Siroky is Mr. Sack's trustee and is treated as

the owler of the bond and the claimant to the monetary interest

throughout this opinion.

       Lawrence Sack was charged with one count of felony theft and
one count of conspiracy alleged to have occurred on or about March

26,   1990 in Richland County, Montana.     Bond was set in the sum of

$50,000. On April 23, 1990, Sack deposited the sum of $50,000 with

the Clerk of the Court.       On April 30, 1990, the $50,000 bond was

deposited into the trust account of the Richland       County Clerk of

Court and then into an interest bearing account with the Richland

County Treasurer at the Richland National Bank and Trust, Sidney,

Montana.       The money continued to accrue interest thereafter.

        Sack ultimately pled guilty and was sentenced.     The $50,000

bond was       then exonerated with $25,000 being applied toward

restitution and $25,000 returned to Sack.     Richland County retained

the interest income generated by the bond.

                                     2
        Sack submitted a claim to the County on June 13, 1991, for the

accrued interest and his claim was denied on January 23, 1992.

        On July 22, 1992,   Lynnette Siroky instituted the present

action as trustee for Lawrence Sack.      On December 30, 1993, Siroky
filed a motion for partial summary judgment on the issue of whether

Siroky was entitled to receive the interest earned as a result of

Siroky's bail bond deposit with the court.     A hearing on the motion

was held February 15, 1994.      The District Court entered an order

granting partial summary judgment on March 29, 1994.       On June 16,

1994,   Siroky made a motion for full summary judgment, which motion
was granted by order of the Seventh Judicial District Court on July

25,   1994.   Richland County appeals.

Issue    presented

        Whether interest earned on bond monies deposited in criminal

actions under Montana law is to be returned to the owner of the

money or is to be retained by the County as part of its general

fund.

Standard of Review

        Our standard of review of an order by a district         court

granting summary judgment is the same as that used by the district

court under Rule 56(c),     M.R.Civ.P.   Mills v. Mather (Mont. 1995),

___ P.2d _, _I 52 St.Rep. 139, 141.         Summary judgment is proper
when there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.          Rule 56(c),

M.R.Civ.P.     In the present case, the parties agreed that there were

no genuine     issues   of material fact and thus,     the matter was

                                    3
properly   subject    to   summary    disposition   pursuant   to   Rule    56(c),

M.R.Civ.P.



Discussion

      Property interests are created not by the constitution, but by

independent sources such as state law.              Mogan v.   City of Harlem

(1989), 238 Mont. 1, 6-7, 775 P.2d 686, 689.            In the present case,
the   Montana    Legislature has established a             statutory        scheme

regulating the posting, forfeiture and discharge of bail.                  Section

46-g-106, MCA, authorizes the release of an accused upon reasonable
conditions that ensure the appearance of the accused and protect

the safety of the community.            Section 46-g-108, MCA, allows the

court to impose any condition that will reasonably ensure the

appearance of        the   accused,    including a     condition that         "the

defendant shall furnish bail in accordance with 46-9-401."

      Section 46-g-401, MCA, sets forth numerous ways that bail may

be furnished, one of which is by a deposit of cash with the court

of an amount equal to the required bail. Mr. Sack voluntarily

chose to deposit a cash bond with the District Court in order to

satisfy the condition of his bail.
      The legislature has further provided that, if the conditions

of bail are not satisfied (e.g. if the defendant does not appear in

court) ,   the bail shall be forfeited and the bail money shall be

paid to the treasury of the city or county where the money was

deposited.      Section    46-g-511,    MCA.   On the other hand, if the

conditions of bail are satisfactorily performed and the accused is


                                         4
discharged from his obligations, "the court shall return to him or
his sureties the deposit of any cash . . .I!       Section 46-g-502,
MCA.    The statutes do not specifically state whether or not the

defendant is entitled to the interest generated by the cash during

the time of the deposit.

       The United States Supreme Court addressed a similar issue in

Webb's Fabulous Pharmacies, Inc. v. Beckwith   (1980), 449   U. S.   155,

101 S.Ct. 446, 66 L.Ed.2d 358.   Webb's Pharmacies sold all of its

assets to Eckerd, another Florida corporation.    At the closing, it
appeared that Webb's Pharmacies'      debts were greater than the

purchase price to be paid by Eckerd. Accordingly, under the Bulk

Transfer Act, Eckerd filed a complaint in interpleader and tendered

the purchase price to the court.      Under Florida law, the clerk

deposited the money in an interest bearing account.          The court

reserved decision on entitlement to the interest,     as between the

clerk and Webb's Pharmacies' creditors.     The clerk deducted a fee

from the funds "for    services rendered" as allowed by Florida

statute.    A receiver was appointed for Webb's Pharmacies and the

receiver filed a motion for release of the funds to him.     The court

released the funds, less the amount of the statutory fee and less

the amount of accumulated interest.     The receiver then moved for

release of the accumulated interest.      The court held in favor of

the receiver and the clerk appealed. The Florida Supreme Court

reversed the Circuit Court stating that the funds, although private

money at the time of deposit, were "considered 'public money"' from

the date of the deposit until they left the account; that "the

                                  5
statute takes only what it creates;"                       and that     there was no
unconstitutional taking because interest earned on the account was
not private property.                   Beckwith   v.   Webb's   Fabulous   Pharmacies,
Inc.    (Fla.       1979),       374 So.2d 951, 952-53.
        The United States Supreme Court noted that the Florida

statutory scheme would allow the county to exact two tolls while

the interpleader funds were held by the clerk of court.                       The first

being the statutory fee for services rendered. The second would be

the keeping of the accrued interest pursuant to Florida's statutory

provision that the interest "shall be deemed income of the office

of the clerk of the circuit court."
        The Supreme Court found that the clerk held those funds for

the "ultimate benefit of Webb's creditors, not for the benefit of

the court and not for the benefit of the county."                           Rather,   the

creditors had a state-created property right to their respective

portions of the funds.                 The Court noted that the general rule is

that any interest on interpleaded funds follows the principal and

is to be allocated to those who are ultimately to be the owners of

that principal.                  Webb's Fabulous Pharmacies, 155 U.S. at 161-62.

In rejecting the Florida Supreme Court's reasoning that the funds
temporarily assumed the status of "public money," the Supreme Court

held:

             This   court  has been permissive in upholding
        governmental action that may deny the property owner of
        some beneficial use of his property or that may restrict
        the owner's full exploitation of the property, if such
        public action is justified as promoting the general
        welfare.

                .    .   .   .

                                               6
           Here, however, Seminole County has not merely
     "adjust[edl the benefits and burdens of economic life to
     promote the common good."    [Citation omitted.] Rather,
     the exaction is a forced contribution         to general
     governmental revenues, and it is not reasonably related
     to the costs of using the courts. Indeed, " [t]he Fifth
     Amendment's guarantee . . was designed to bar
     Government from forcing some people alone to bear public
     burdens which, in all fairness and justice, should be
     borne by the public as a whole."    [Citation omitted.]
Webb's Fabulous Pharmacies, 155 U.S. at 163.
     Noting that neither the statute nor the county offered any

justification for the deprivation,     the Court rejected the notion
that the money could simply be characterized as "public money"
because it was temporarily held by the court.
     The earnings of a fund are incidents of ownership of the
     fund itself and are property just as the fund itself is
     property. The state statute has the practical effect of
     appropriating for the county the value of the use of the
     fund for the period in which it is held in the registry.
          To put it another way: a State, by ipse dixit, may
     not transform private property into public property
     without compensation, even for the limited duration of
     the deposit in court.   This is the very kind of thing
     that the Taking Clause of the Fifth Amendment was meant
     to prevent. That Clause stands as a shield against the
     arbitrary use of governmental power.
Webb's Fabulous Pharmacies, 155 U.S. at 164.
     Under the narrow circumstances of the Webb's Pharmacies case,
where there was a separate and distinct statute authorizing a
clerk's fee for "services rendered" and where the deposited fund
itself concededly   was private,   the United States Supreme Court
concluded:
     Seminole County's taking unto itself, under 5 28.33 and
     1973 Fla. Laws, ch. 73-282, the interest earned on the
     interpleader fund while it was in the registry of the
     court was a taking violative of the Fifth and Fourteenth
     Amendments.  We express no view as to the constitution-
                                   7
     ality of a statute that prescribes a county's retention
     of interest earned, where the interest would be the only
     return to the county for services it renders.
Webb's Fabulous Pharmacies, 155 U.S. at 164-65.

     Richland        County relies upon a decision from an intermediate

appellate court in California, Fresno Firefighters' Local 753 v.

Jernagan (Cal. Ct. App. 5th Dist. 1986),               222 Cal. Rptr. 886, 177

Cal. App. 3d 403.             In    Fresno Firefighters, the California court

held that the interest earned on cash bail bonds in criminal

actions belongs to the county not the depositor.                      The court found
that, unlike cash deposits in civil cases such as Webb's Pharmacies

where the money is deposited only for the benefit of a private

person,   "bail money is deposited for a public purpose--security for

the appearance of the defendant at all required court hearings."

Accordingly,       the court concluded: "Hence, the public purpose of

bail justifies the denial to the owner of the beneficial use of the

money while it is on deposit with the court."                 Fresno Firefighters,

222 Cal. Rptr. at 892.

     We     find      that    the     situation in     Fresno     Firefighters is

distinguishable from the case before us.                In Fresno Firefighters,

222 Cal. Rptr. at 890, the court noted that the State of California

had enacted a statute providing that:

     interest earned on any bail money deposited in a bank
     pursuant to [specified Pen.Code sections1 shall, if the
     board of supervisors so directs, be allocated for the
     support of the courts in that county.

     In light of this statutory provision, the California court

concluded      that     the        retention of    interest     was     justified as
"promoting     the    general       welfare."     Fresno Firefighters, 222 Cal.

                                            8
Rptr. at 892.     In contrast to California, Montana has not adopted
any   statutory   provisions allowing political entities to retain
interest on cash bonds nor is there any suggestion advanced that,
in Montana,     the retained interest would go to the court system,
thereby promoting the public welfare.    On the contrary, the record
indicates that in the present case,      the County's general fund,
rather than the court, would benefit from the earned interest.
       Although the United States Supreme Court's holding was based
upon the narrow circumstances of the Webb's Pharmacies case, we
conclude that the principles enunciated in Webb‘s Pharmacies are
applicable to the facts presently before us.           As in Webb's
Pharmacies, Richland    County offers no justification to sustain the
taking of the interest earned by the bond money.      The bond money
was Sack's private property and        could only be lost upon a
forfeiture resulting from a violation of the terms of the bond.
That did not happen.     Rather, the bond was exonerated.
      We hold that the constitutional analysis in Webb's Pharmacies
is persuasive.     The money deposited was Sack's private property at
all times.    The retention of earned interest on that money would
amount to a taking of Sack's property in violation of the 5th and
14th Amendments of the United States Constitution and Article II,
Section 29 of the Montana Constitution.
      Furthermore,   during the period that the deposit was earning
interest, Sack was an "accused" who was presumed innocent of the
charges.     The court's requirement of a cash bond was designed to
create an incentive to Sack to appear in court at all appointed

                                   9
times.    Section 46-g-106, MCA.     Obviously, if the State or County
lays claim to some or all of that bond or the interest thereon,

there is less incentive for Sack to appear.

        In the Webb's Pharmacies decision,     the Supreme Court noted
that,    if the county were allowed to retain interest on the

interpleader    deposit,   "its    officials   would feel an        inherent
pressure and possess a natural inclination to defer distribution,

for that interest return would be greater the longer the fund is

held; there would be, therefore, a        built-in   disincentive    against

distributing the principal to        those entitled to it."           Webb's

Fabulous Pharmacies, 155 U.S. at 162.
        That reasoning is even more compelling in the context of a

cash bond in a criminal proceeding.            If Richland   County were

allowed to retain the interest as public monies, there would be an

incentive to the County to tie up the money as long as possible,

thereby earning more interest.      The County would thus stand to gain
by prolonging Sack's criminal prosecution.       Such an incentive runs

contrary to the constitutional guarantees of speedy trial under the

6th Amendment to the United States Constitution and Article II,

Section 24 of the Montana Constitution.

        We hold that the County's retention of the interest money on

a bail bond cash deposit would violate the guarantee in Article II,

Section 17 of the Montana Constitution that a citizen cannot be

deprived of property without due process of law, and the guarantee

in Article II,      Section 29 of the Montana Constitution,             that

property cannot be taken for public use without just compensation.


                                     10
Furthermore,      Article    II,    Section 24 of the Montana Constitution
guarantees a speedy public trial.                Allowing a county to retain
interest     on    bail     money    has   the   potential to   thwart   that
constitutional      guarantee.

     In Montana, there is no statutory requirement that the clerk

of court deposit bond money in an interest bearing account.

However,   if the court does so (or, upon motion,           is ordered to do
so) then the court must abide by the general rule recognized by the

United States Supreme Court in Webb's Pharmacies, that is, that

interest earned belongs to the owner of the funds that generated

the interest.

      As the District Court correctly noted, the County is no more

entitled to retain the interest            on this cash bond than it would be
to retain accruing dividends on a deposit of stocks or bonds or the

appreciated value on a pledge of real estate under 5 46-g-401, MCA.

     Affirmed.




We concur.