ATTORNEYS FOR APPELLANTS: ATTORNEY FOR APPELLEE:
STEVE CARTER ERIC O. CLARK
Attorney General of Indiana Robert L. Lewis & Associates
JAMES B. MARTIN
Deputy Attorney General
ATTORNEYS FOR AMICUS CURIAE
CRIMINAL DEFENSE SECTION OF THE
LAKE COUNTY BAR ASSOCIATION:
JAMES E. FOSTER
MICHAEL N. PAGANO
Funk & Foster
KERRY C. CONNOR
SUPREME COURT OF INDIANA
LAKE COUNTY CLERKS OFFICE, )
ANNA ANTON AS LAKE COUNTY )
CLERK OFFICIALLY, LAKE COUNTY )
SHERIFFS DEPT., JOHN BUNCICH AS )
LAKE COUNTY SHERIFF OFFICIALLY, )
LAKE COUNTY CORRECTIONAL DEPT., )
UNKNOWN CORRECTIONAL OFFICERS, ) Supreme Court Cause Number
LAKE COUNTY, INDIANA and THE ) 45S00-0102-CV-105
STATE OF INDIANA, )
HERBERT SMITH, JR., and )
CHARLES ZACEK, )
APPEAL FROM THE LAKE SUPERIOR COURT, ROOM 3
The Honorable James Danikolas, Judge
Cause No. 45D03-9911-CP-2969
ON DIRECT APPEAL
April 22, 2002
Under Indianas statutory bail scheme, a trial court can admit a defendant to
bail by requiring the defendant to execute a bail bond by using a
bail bondsman or by depositing ten percent of the bail amount in cash
with the clerk of the trial court. In this case the trial
court declared this scheme unconstitutional under both the federal and state constitutions because
it treats bail bondsmen differently from defendants who post ten percent cash bonds.
Concluding that Indianas bail scheme is not unconstitutional, we reverse the judgment
of the trial court.
Introduction To Indiana Bail Law
The availability of bail is guaranteed for all offenses except murder and treason
by Article I, Section 17 of the Indiana Constitution. The purpose of
bail is to ensure the presence of the accused when required without the
hardship of incarceration before guilt has been proved and while the presumption of
innocence is to be given effect. Hobbs v. Lindsey, 240 Ind. 74,
162 N.E.2d 85, 88 (1959) (quotation omitted). To that end, the legislature
has adopted a comprehensive statutory bail scheme found throughout various chapters of Title
27 and Title 35 of the Indiana Code. Among other things, this
scheme provides a variety of ways in which a defendant can remain free
pending trial. For example, Indiana Code section 35-33-8-3.2 provides that a court
may admit a defendant to bail and impose any of the following conditions
to ensure the defendants presence at any stage of the legal proceedings:
(1) Require the defendant to:
(A) execute a bail bond with sufficient solvent sureties;
(B) deposit cash or securities in an amount equal to the bail;
(C) execute a bond secured by real estate in the county, where thirty-three
hundredths (0.33) of the true tax value less encumbrances is at least equal
to the amount of the bail;
(D) post a real estate bond.
(2) Require the defendant to execute a bail bond by depositing cash or
securities with the clerk of the court in an amount not less than
ten percent (10%) of the bail. . . .
. . .
Ind. Code § 35-33-8-3.2(a). This case involves only bail bonds executed under
subsections (a)(1)(A) and (a)(2). See Br. of Appellee at 1.
Defendants Who Use a Bail Bondsman
A bail bond is a bond executed by a person who has been
arrested for the commission of an offense for the purpose of ensuring:
(1) the persons appearance at the appropriate legal proceeding; (2) another persons physical
safety; or (3) the safety of the community. I.C. § 35-33-8-1.
A bail bond executed under Indiana Code section 35-33-8-3.2(a)(1)(A) is most commonly used
by defendants who use a bail bondsman, while a bail bond executed under
Indiana Code section 35-33-8-3.2(a)(2) is most commonly used by defendants who post ten
percent cash bonds. We explore each of these methods in more detail
A defendant who executes a bail bond under Indiana Code section 35-33-8-3.2(a)(1)(A) uses
a bail agent, commonly referred to as a bail bondsman. A bail
agent is a person who has been approved by the Commissioner of the
Department of Insurance and appointed by an insurer through a power of attorney
to execute or countersign bail bonds for the insurer in connection with judicial
proceedings for which the person receives a premium. I.C. § 27-10-1-4.
A premium is the amount of money the defendant pays the bail agent
prior to the execution of the bail bond. I.C. § 27-10-1-8.
The premium, which is usually ten percent of the bond, is for the
bail agents services. R. at 413. Even if the defendant appears
as ordered by the court, he is not entitled to a return of
the premium. Id. If the defendant fails to appear, then the
court issues a warrant for the defendants arrest and orders the bail agent
and the surety
See footnote to surrender the defendant to the court immediately. I.C.
§ 27-10-2-12(a). The clerk of the court must mail a notice of
this order to both the bail agent and the surety.
Before 1985, the court was also required to order the bond forfeited when
the defendant failed to appear as ordered. See I.C. § 35-4-5-12 (1982).
However, the legislature recodified and amended this section in 1985. Pub.L.
No. 261-1985, § 12, 1985 Ind. Acts 2034-35. In addition to removing
the forfeiture requirement, the amendments provided that the bail agent or surety must:
(1) produce the defendant; or
(2) prove within three hundred sixty-five (365) days:
(A) that the appearance of the defendant was prevented:
(i) by the defendants illness or death;
(ii) because the defendant was at the scheduled time of appearance or currently
is in the custody of the United States, a state, or a political
subdivision of the United States or a state; or
(iii) because the required notice was not given; and
(B) the defendants absence was not with the consent or connivance of the
I.C. § 27-10-2-12(b). As things now stand, if the bail agent or
surety does not comply with the above requirements, then the court shall assess
a late surrender fee. The fee is graduated from twenty to eighty
percent of the face value of the bond, depending on when the bail
agent or surety complies with the statutory mandate. See I.C. § 27-10-2-12(c).
And it is due on the date of compliance or 365 days
after the clerk mails notice, whichever is earlier. Id. Additionally, the
court shall order the bond forfeited only if the bail agent or surety
fails to produce the defendant or show that the defendants appearance was prevented
within 365 days of the clerks mailing of the notice. I.C. §
27-10-2-12(d). Even then, only twenty percent of the face value of the
bond is forfeited. Id. Once forfeiture is ordered, the court shall
immediately enter judgment. Id.
Defendants Who Post Ten Percent Cash Bonds
A defendant who executes a bail bond under Indiana Code section 35-33-8-3.2(a)(2) deposits
ten percent of the bail amount with the clerk of the court.
If the defendant appears as ordered by the court, then the clerk returns
to the defendant the deposit, minus administrative and other costs. I.C. §§
35-33-8-3.2(a)(2), -7(f). Before 1990, when a defendant failed to appear, the court
issued a warrant for the defendants arrest and ordered the bond forfeited.
I.C. § 35-33-8-7(a) (1988). Although this is still true as a general
proposition, the legislature has made some changes.
In February 1990, this Court addressed the timing of bond forfeiture in OLaughlin
v. Barton, 549 N.E.2d 1040 (Ind. 1990). In that case, we held
that a cash bond the defendant deposited with the clerk was not subject
to garnishment for a civil judgment obtained by the victim of the crime
because the court should have forfeited the bond upon the defendants failure to
appear, leaving nothing for the victim to garnish. Id. at 1042.
While OLaughlin was pending on petition for rehearing in this Court, the legislature
amended Indiana Code section 35-33-8-7. These amendments, which became effective March 20,
1990, require a delay in forfeiture under narrow circumstances. Pub.L. No. 36-1990,
§§ 7, 15, 1990 Ind. Acts 1257, 1262. Those circumstances are that
when the court receives written notice of a pending civil action or unsatisfied
judgment against the defendant arising out of the same transaction or occurrence that
formed the basis of the criminal case, the court may not order funds
deposited with the clerk forfeited, as it had previously been required to do.
I.C. § 35-33-8-7(b). Rather, the court shall order the deposited funds
to be held by the clerk. Id. If there is an
entry of final judgment in favor of the plaintiff in the civil action,
then the court shall order payment of all or any part of the
deposit to the plaintiff as is necessary to satisfy the judgment. Id.
The court shall then order forfeited the deposit, if any, as well
as the bond. Id.
Facts and Procedural History
Herbert Smith and Charles Zacek (collectively referred to as Bondsmen) are bail agents
licensed in the State of Indiana. For several years, Bondsmen have posted
bail bonds for numerous defendants in Lake County. The events giving rise
to this action are as follows. Smith posted a bail bond in
the criminal division of the Lake County Superior Court for Sheree Parker-Robinson in
the amount of $3000 in November 1996 and for Valerie McCutchen in the
amount of $10,000 in February 1997. Parker-Robinson and McCutchen failed to appear.
However, because Smith surrendered them to the court within 365 days, the
court only ordered late surrender fees totaling $2600. Likewise, Zacek posted a
bail bond in the criminal division of the Lake County Superior Court for
John Gorzcya in the amount of $10,000 in April 1997. Gorzcya also
failed to appear, but Zacek was not able to surrender him to the
court within 365 days. As a result, the court ordered forfeiture and
late surrender fees totaling $10,000.
On November 22, 1999, Bondsmen filed a complaint for temporary restraining order, permanent
injunction, and declaratory judgment against the State of Indiana, Lake County, the Lake
County Clerks Office, the Lake County Sheriffs Department, the Lake County Corrections Department,
and Unknown Named Correctional Officers (collectively referred to as the State). Bondsmen
contended that Indianas statutory bail scheme was unconstitutional under the Equal Protection Clause
of the United States Constitution and the Privileges and Immunities Clause of the
Indiana Constitution. The trial court issued a temporary restraining order prohibiting the
State from admitting defendants to bail under Indiana Code section 35-33-8-3.2. R.
at 37. After conducting a hearing, the trial court declared Indianas statutory
bail scheme unconstitutional and permanently enjoined the State from admitting defendants to bail
under Indiana Code section 35-33-8-3.2. R. at 176. The trial court
later stayed the permanent injunction pending appeal. R. at 211. The
State appealed, and this Court accepted jurisdiction pursuant to Indiana Appellate Rule 4(A)(1)(b).
Bondsmen contend that Indianas statutory bail scheme is unconstitutional under both the Equal
Protection Clause of the United States Constitution and the Privileges and Immunities Clause
of the Indiana Constitution. This is so, according to Bondsmen, because the
scheme treats bail agents differently from defendants who post ten percent cash bonds.
More specifically, they argue that when a defendant fails to appear, bail
agents are subject to forfeiture and late surrender fees while defendants who post
ten percent cash bonds are not.
I. Equal Protection Clause
The Equal Protection Clause of the United States Constitution provides that no state
shall deny to any person within its jurisdiction the equal protection of laws.
U.S. Const. amend. XIV, § 1. The Equal Protection Clause does
not reject the governments ability to classify persons or draw lines in the
creation and application of laws, but it does guarantee that those classifications will
not be based on impermissible criteria or arbitrarily used to burden a group
of individuals. Phelps v. Sybinsky, 736 N.E.2d 809, 818 (Ind. Ct. App.
2000) (quotation omitted), trans. denied. In assessing a claim under the Equal
Protection Clause, our first inquiry involves the applicable level of scrutiny. Ind.
High Sch. Athletic Assn, Inc. v. Carlberg, 694 N.E.2d 222, 236 (Ind. 1997).
Laws that involve a suspect classification and those that burden the exercise
of a fundamental right receive the strictest scrutiny. Shepler v. State, 758
N.E.2d 966, 969 (Ind. Ct. App. 2001), trans. denied. In order to
survive strict scrutiny, a state action must be a necessary means to a
compelling governmental purpose and be narrowly tailored to that purpose. Id.
Classifications not involving a suspect class or a fundamental right are reviewed under
a rational basis test. Carlberg, 694 N.E.2d at 236. This test
merely requires that the statute be rationally related to a legitimate governmental purpose.
Durham ex rel. Estate of Wade v. U-Haul Intl, 745 N.E.2d 755,
763 (Ind. 2001); Carlberg, 694 N.E.2d at 236.
Bondsmen concede they are not members of a suspect class and that a
fundamental right is not involved. Therefore, the State need only show that
the statute bears a rational relationship to a legitimate state interest. Bondsmen
also concede that the State has a legitimate interest in ensuring that persons
for whom bail has been posted appear at court when scheduled. R.
at 133. However, they contend that the State does not further this
interest by subjecting bail agents, and not defendants who post ten percent cash
bonds, to forfeiture and late surrender fees when defendants fail to appear.
We first observe that contrary to Bondsmens contention, defendants who post ten percent
cash bonds are subject to forfeiture of the full amount of the bond
if they fail to appear. Unless there is a pending civil action
or unsatisfied judgment against the defendant, when a defendant fails to appear, the
court shall  order the remainder of the deposit, if any, and the
bond forfeited. I.C. § 35-33-8-7(b).
This then leaves us with Bondsmens contention that the State does not further
its legitimate interest of ensuring the appearance of defendants at judicial proceedings by
subjecting bail agents, and not defendants who post ten percent cash bonds, to
late surrender fees if defendants fail to appear. On this point the
State responds that the unequal treatment accorded bail agents and defendants posting ten
percent cash bonds is rationally related to the States legitimate interest in ensuring
the appearance of defendants at judicial proceedings. We agree.
Unlike defendants who post ten percent cash bonds, bail agents are in the
business of posting bonds for profit and consequently are heavily regulated by the
Department of Insurance. See I.C. § 27-10-1-1 et seq. Further, a
bail agent gets to keep the entire premium a defendant pays, even if
the defendant appears as ordered by the court. As such, the premium
itself does not serve as an incentive for the bail agent to ensure
the appearance of the defendant. Rather, our legislature has provided that late
surrender fees serve as the bail agents incentive. The sooner a bail
agent produces a defendant who has failed to appear, the less late surrender
fees the bail agent must pay. I.C. § 27-10-2-12(c). By contrast,
defendants who post ten percent cash bonds do not need the threat of
late surrender fees to ensure their appearance because: (1) they stand to
lose the full amount of the bond if they fail to appear, I.C.
§ 35-33-8-7(b); and (2) if they do appear, the clerk returns to them
the deposit, minus administrative and other costs. I.C. §§ 35-33-8-3.2(a)(2), -7(f).
Both of these conditions serve as a defendants incentive to appear.
Every statute stands before us clothed with the presumption of constitutionality. State
Bd. of Tax Commrs v. Town of St. John, 702 N.E.2d 1034, 1037
(Ind. 1998). The party challenging the constitutionality of the statute has the
burden to rebut this presumption, and all reasonable doubts must be resolved in
favor of the statutes constitutionality. Id.; In re Tina T., 579 N.E.2d
48, 56 (Ind. 1991). When a statute can be construed so as
to support its constitutionality, we must adopt such a construction. Tina T.,
579 N.E.2d at 56. In this case we conclude that Indianas statutory
bail scheme is rationally related to the States interest in ensuring the presence
of defendants at judicial proceedings. Accordingly, Bondsmen have failed to carry their
burden of proving that Indianas statutory bail scheme violates the Equal Protection Clause
of the United States Constitution.
II. Privileges and Immunities Clause
The Privileges and Immunities Clause of the Indiana Constitution provides: The General
Assembly shall not grant to any citizen, or class of citizens, privileges or
immunities, which, upon the same terms, shall not equally belong to all citizens.
Ind. Const. art. I, § 23. This provision, which is applied
and interpreted independent of the Equal Protection Clause, imposes two requirements upon statutes
that create classifications and either grant privileges or impose burdens: First, the
disparate treatment accorded by the legislation must be reasonably related to inherent characteristics
which distinguish the unequally treated classes. Second, the preferential treatment must be
uniformly applicable and equally available to all persons similarly situated. Martin v.
Richey, 711 N.E.2d 1273, 1280 (Ind. 1999) (quotation omitted). In determining whether
a statute complies with or violates Article I, Section 23, courts must exercise
substantial deference to legislative discretion. Id.
In this case Bondsmen challenge Indianas statutory bail scheme only under the disparate
treatment prong. Similar to their equal protection challenge, they contend that the
scheme creates different classes and that the differences between the classes do not
justify subjecting only bail agents to late surrender fees.
We first observe that it could be argued that bail agents are treated
better under Indianas statutory bail scheme than defendants who post ten percent cash
bonds. With respect to forfeiture, if a defendant who posts a ten
percent cash bond fails to appear, the court orders the full amount of
the bond forfeited. I.C. § 35-33-8-7(b). This is so even if
the defendant later appears as ordered by the court. In contrast, bail
agents have a 365-day window in which to produce the defendant before the
court even orders forfeiture. I.C. § 27-10-2-12(d). With respect to late
surrender fees, even though bail agents and defendants who post ten percent cash
bonds are treated differently, the outcome for bail agents is the same or
better. For example, if a defendant who posts a ten percent cash
bond fails to appear, although he is not subject to late surrender fees,
he forfeits 100% of the bond. I.C. § 35-33-8-7(b). Likewise, if
a defendant who uses a bail agent fails to appear and the bail
agent is unable to surrender him within 365 days, the bail agent must
pay 100% of the bond, 80% in late surrender fees and 20% in
forfeiture fees. I.C. § 27-10-2-12(c)(5), (d). However, if the bail agent
is able to prove within 365 days that the defendants appearance was prevented
by a statutory reason, the bail agent is not subject to any late
surrender fees. I.C. § 27-10-2-12(b), (c). And even if the bail
agent is unable to prove within 365 days that the defendants appearance was
prevented by a statutory reason, the most he must pay in late surrender
fees is 80% of the bond. I.C. § 27-10-2-12(c).
In any event Bondsmen are correct that the scheme creates different classes.
Those classes are bail agents who post bail bonds on behalf of defendants
for profit and defendants who post ten percent cash bonds on their own
behalf. And Bondsmen are also correct that bail agents and defendants who
post ten percent cash bonds are treated differently. This is so, however,
because without the threat of late surrender fees, bail agents have no incentive
to ensure a defendants appearance because they get to keep the entire premium
regardless of whether the defendant appears.
We conclude that any disparate treatment between bail agents and defendants who post
ten percent cash bonds is reasonably related to the inherent characteristics between the
two unequally treated classes. As with their equal protection claim, Bondsmen have
failed to carry their burden of proving that Indianas statutory bail scheme violates
Article I, Section 23 of the Indiana Constitution.
We reverse the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
A surety is any person who is qualified as an insurer
and represented by a bail agent who agrees to pay the bond in
the event the defendant fails to appear in court at the scheduled date
and time. I.C. §§ 27-10-1-10, -2-4(1).