Posted 2/1/2015

In Affordable Bail Bonds, Inc. v. State, 2015 Ark.App. 44 (Ark.App. January 28, 2015) the defendant failed to appear on April 25, 2013.  The clerk issued a summons to the surety on April 29, but it was not properly served on the surety until June 3.  Pursuant to the summons, the surety appeared on August 22 and requested an extension of time to produce the defendant.  The court granted additional time, but the surety did not produce the defendant and at the continued show cause hearing on October 3 the surety for the first time argued that the delay in serving it with the summons meant the service was not “immediate” as required by Ark. Code §16-84-207.  The Court distinguished objections to subject matter jurisdiction, which can be raised at any time, and objections to personal jurisdiction that can be waived.  Service of the summons was a matter of personal jurisdiction, and by appearing on August 22 and not objecting to the delay in service, the surety waived any objection.  The Court affirmed judgment forfeiting the bond.

In People v. Lexington National Insurance Corp., Case No. B251224 (Cal.App. January 21, 2015) the trial court continued a hearing to set the date for the preliminary hearing.  The felony defendant was present, but he did not appear on the date of the continued hearing, and the reporter’s transcript showed that the judge had not ordered him to appear.  The issue was whether Penal Code §977(b)(1) required him to be present.  The Court reversed forfeiture of the bail bond while noting that the issue was pending before the California Supreme Court in two cases.  The Court stated its conclusion as, “May Penal Code section 977, subdivision (b)(1), be used to determine whether a proceeding at which a defendant charged with a felony failed to appear was a proceeding at which the defendant was ‘lawfully required’ to appear for purposes of forfeiting bond under Penal Code section 1305, subdivision (a)(4)?  Unless and until our Supreme Court holds otherwise, we conclude that it may not.”

In Chunn v. State, 2015 WL 270037 (Miss. January 22, 2015) the petitioner had been a licensed bail agent for 20 years.  In 1981, however, he had pled guilty in Texas to possession of marijuana.  Effective July 2011 Mississippi Code §83-30-3 was amended to prohibit any felon – regardless of the date or nature of the offense -- from licensure as a bail agent.  Mr. Chunn’s August 2011 application to renew his license was denied based on the amended statute.  In a 5-4 en banc decision, the Court held that the amended statute violated the Equal Protection Clause of the Fourteenth Amendment and reversed the lower court’s decision upholding the action of the Department of Insurance.  The majority decision held that the State had not shown a rational basis for depriving all felons, without regard to their circumstances, of the opportunity to qualify as bail agents.  The dissenting opinion would have found that the amended statute passed the rational basis test because “this law concerns a privilege license intimately associated with the criminal justice system.”  The dissent pointed out that several other states also bar felons from licensure as bail agents.

AAA Bonding Agency, Incorporated v. United States Department of Homeland Security, Case No. 14-20057 (5th Cir. January 12, 2015) held that a settlement agreement between the Department of Homeland Security (DHS) and the surety on a series of immigration bonds also released the agent.  The decision involved 23 bonds on which DHS had sent notice and a demand for delivery of the alien to the bonding agent but not to the surety.  In a prior decision reported at 447 Fed.Appx. 603 (5th Cir. 2011), the Court held that a bond could be enforced only against an obligor to whom such a notice was sent.  After remand, DHS and the surety entered into a settlement agreement which, among other things, provided that it released the bonding agent to the extent it was jointly and severally liable with the surety.  In the trial court, DHS successfully argued that as to the 23 bonds only the bonding agent was liable because only the bonding agent received the notice and demand.  The Court reversed because the bond itself made the surety and the agent jointly and severally liable and, therefore, the settlement agreement applied to release the agent.

In State v. Stellmach, 2015 WL 134174 (Minn.App. January 12, 2015) the defendant failed to appear for sentencing.  The surety retained a recovery agent who promptly located the defendant in jail in another county.  The defendant was returned and sentenced, but the trial court denied the surety’s motion to reinstate and discharge the bond.  The Court of Appeals held that the trial court erred by considering only the defendant’s willful failure to appear.  While the defendant’s conduct was properly considered, it did not render the surety’s actions irrelevant.  The Court remanded the case with instructions to reconsider the surety’s motion including specific findings on the surety’s good-faith efforts to locate the defendant and any prejudice to the State.

Zouvelos v. New York State Department of Financial Services, 2015 WL 59034 (N.Y.A.D. January 6, 2015) affirmed revocation of the petitioner George Zouvelos’ license as a bail bondsman.