2016 UT 5
IN THE
SUPREME COURT OF THE STATE OF UTAH
THE ROYAL CONSULATE OF THE KINGDOM OF SAUDI ARABIA,
Petitioner,
v.
THE HONORABLE DEREK PULLAN,
Respondent.
No. 20150643
Filed January 15, 2016
Attorneys:
Ronald J. Yengich, Salt Lake City, for petitioner
Brent M. Johnson, Salt Lake City, for respondents
PER CURIAM:
¶ 1 Monsour Al Shammari, who is a citizen of Saudi Arabia,
was arrested and charged with rape. Bail was set at $100,000, and
the Royal Consulate of Saudi Arabia provided the cash funds to post
bail. Shortly thereafter, Mr. Al Shammari attempted to cross the
border into Tijuana, Mexico and was detained by the United States
Customs and Border Patrol. When he failed to appear for a
scheduled hearing in the criminal case, the district court ordered the
cash bail forfeited without providing notice to the Consulate. Mr. Al
Shammari was extradited to Utah, and he moved to set aside the
order of forfeiture. Among the arguments he presented in his
motion, he asserted the forfeiture was procedurally deficient because
the Consulate, as a “surety,” was entitled to notice. The district
court determined that his failure to appear was willful and that the
Consulate was not entitled to notice because it was not a surety for
purposes of Chapters 20 and 20b of Title 77 of the Utah Code. It
ordered the bail forfeited.
¶ 2 The Consulate has filed a petition for extraordinary relief
with this Court challenging the district court’s determination that it
was not a surety and was not entitled to notice. It also contests the
correctness of the district court’s conclusions that Al Shammari’s
failure to appear was willful and that forfeiture of bail was
ROYAL CONSULATE OF SAUDI ARABIA
v. HON. PULLAN
Opinion of the Court
appropriate. We conclude the Consulate was not a surety that was
statutorily or constitutionally entitled to notice, and we decline to
reach its arguments regarding the merits of the forfeiture ruling
because it lacks standing. Accordingly, we deny its petition for
extraordinary relief.
¶ 3 Section 77-20-4 of the Utah Code designates five
mechanisms for posting bail, only one of which involves a “written
undertaking with . . . suret[y].” UTAH CODE § 77-20-4(1)(b).1 Section
77-20-5 then describes the two types of sureties who may provide a
written undertaking: (1) a for-profit bail business; or (2) an
individual or entity that is not in that business and who must be a
real or personal property holder with a “net worth of at least twice
the amount of the undertaking, exclusive of property exempt from
execution.” Id. § 77-20-5(1). Chapter 20b of Title 77 separately
provides that a “surety be given notice of [a] nonappearance” of the
defendant, id.§ 77-20b-101(1), and that it be provided a period of six
months to produce the defendant before a forfeiture action is
commenced on the bond provided by the surety, see id. § 77-20b-102.
¶ 4 In other words, the statutory scheme recognizes two
different forms of guarantee of a defendant’s appearance: (1) an
undertaking tendered by an individual or entity that ordinarily will
be accompanied by the posting of a bond; and (2) bail by cash or an
equivalent form of payment. In the case of written undertakings by
sureties, those sureties assume distinct obligations to ensure
defendants’ appearances and are afforded corresponding
opportunities to satisfy their obligations prior to forfeiture hearings.
Sureties also submit themselves to the “jurisdiction of the court and
irrevocably appoint[ ] the clerk of the court as [their] agent upon
whom any papers affecting [their] liability on the undertaking may
be served.” Id. § 77-20-5(3).
¶ 5 Conversely, when the full amount of bail is satisfied by
funds deposited with the court, defendants’ appearances are secured
directly by those funds, with no independent obligations imposed
on any third persons or entities who happen to provide the funds.
The statutory scheme for bail does not concern itself with the
1
The others describe various means of making a direct payment
of the full amount of bail—cash, credit card, and debit card—but
also allow for the possibility of a “written undertaking . . . without
suret[y].” UTAH CODE § 77-20-4(1)(a)–(c).
2
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Opinion of the Court
manner in which the defendant obtains the funds for cash bail or the
nature of the relationship between the defendant and another
provider, if any, of the funds. The person posting the cash bail may
be merely functioning as a courier for the defendant’s own funds,
may be providing the funds out of friendship or familial loyalty, or
may have extracted some agreement that may or may not be legally
enforceable as a private contract.2 In that light, the absence of a
process for verifying the identity of the owner of the cash
necessitates an assumption that cash bail is the property of the
defendant or is provided on his behalf through a private agreement,
and the court has no obligation to investigate the nature of that
agreement or the identity of the parties to it. Nor does it possess any
practical mechanisms for doing so.
¶ 6 This statutory scheme appears to be consistent with the
historical distinction between cash bail and a surety’s bond that has
been described in decisions in other jurisdictions. See, e.g., State v.
Paul, 976 P.2d 1272, 1274 (Wash. Ct. App. 1999); State v. Echols,
850
S.W.2d 344, 345–47 (Mo. 1993); People v. Castro,
464 N.Y.S.2d 650, 654-
55 (Sup. Ct. 1983). Those decisions have observed that the common
law deemed a surety to be personally liable for guaranteeing the
appearance of the defendant. See Castro,
464 N.Y.S.2d at 655.
Payment of a financial penalty eventually was substituted for the
harsher consequence of incarceration of the surety in the event of
forfeiture, and modern regulations pertaining to sureties incorporate
and perpetuate that process and its premises. See
id. By contrast, the
2
In re Marriage of Bralley, 855 P.2d 1174, 1178 (Wash. Ct. App.
1993), provided an interesting illustration of the possibilities:
X, being in jail on a bench warrant, and desiring
$1000 for cash bail may call Y and ask Y to (1)
retrieve X’s $1000 from a mayonnaise jar buried
in X’s backyard; (2) contact Z and borrow $1000
from Z; (3) loan X $1000 of Y’s money; (4) repay
a $1000 loan that Y may owe to X; (5) make a gift
to X of $1000 or the use of $1000 pending X’s
completion of his obligation to the court; (6) sell
X’s personal property for $1000. In any of these
and a myriad of other possible circumstances, Y
may bring $1000 to the jail and obtain a receipt in
her name. The receipt merely shows that money
was received . . . ; it does not evidence whose
“property” the bail money is.
3
ROYAL CONSULATE OF SAUDI ARABIA
v. HON. PULLAN
Opinion of the Court
same decisions note that the posting of cash to ensure a defendant’s
appearance is a more recent statutory mechanism that functions as
an impersonal tangible substitute for the requirement of a personal
guaranty.3 See id.
¶ 7 In this case the Consulate posted cash bail, and it has failed
to demonstrate that it qualifies as a surety under the applicable
statutes. The Consulate is not a for-profit bail business, and it failed
to satisfy the formal statutory requirements for establishing status as
a surety by “justify[ing] by affidavit upon [an] undertaking”
regarding its property and net worth, as required by section 77-20-
5(2) and by expressly submitting itself to the jurisdiction of the court
under section 77-20-5(3). Accordingly, it did not act as a surety and
was not entitled to notice under the statutory scheme.
¶ 8 For similar reasons, the Consulate’s constitutional
arguments also fail. The statutory notice requirements coincide with
a scheme that comprehensively regulates the process by which a
person or entity obtains recognition as a surety and by which that
surety undertakes obligations in relation to the defendant’s
appearance.4 Conversely, any obligations arising from the provision
of the funds for cash bail are private in nature, between the provider
and the defendant, and not between the provider and the court.
And the absence of any duty to inquire into the true source of funds
provided as cash bail necessarily obviates any obligation for the
3
State v. Echols summarized the difference as follows:
By observing the distinction between a surety
bond and a cash bond, the basis for the differences . . . related to the two forms of bail become
rational. The depositor of bail money has no
obligation for the custody or appearance of the
defendant. The money deposited is the security
for the appearance of the defendant. This is not
to say that one who posts cash bail for another
cannot cause the defendant to surrender . . . .
However, the law places no duties or obligation
on one who posts a cash bail for another for the
appearance of the defendant when required.
850 S.W.2d at 347.
4
We need not address the question of whether sureties possess an
independent due process entitlement to notice.
4
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Opinion of the Court
court to provide notice of events occurring in the case after bail has
been deposited. Accordingly, the Consulate has failed to
demonstrate that it possessed a due process entitlement to notice of
the circumstances that led to the forfeiture of the cash bail in this
case.
¶ 9 Finally, we decline to address the Consulate’s arguments
that the district court erred in determining the factual prerequisites
for forfeiture had been satisfied. Because the Consulate is not a
party to the criminal proceedings and lacked any statutory or
constitutional entitlement to notice of Mr. Al Shammari’s failure to
appear, it likewise lacked standing to challenge the district court’s
forfeiture ruling.
5
