In Re BAIL BOND FORFEITURE

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
In re BAIL BOND FORFEITURE
Docket No. 146033. Argued October 8, 2013 (Calendar No. 1). Decided June 25, 2014.
Corey Deshawn Gaston was released from jail on a $50,000 bond posted by You Walk
Bail Bond Agency, Inc. He thereafter failed to appear at a February 7, 2008 pretrial conference
and at his February 11, 2008 trial in the Wayne Circuit Court. The court, Deborah A. Thomas,
J., ordered Gaston to be rearrested and remanded to jail and that his bond be forfeited. However,
the court did not give the surety notice of Gaston’s failure to appear until three years later. The
surety moved to set aside the forfeiture on the ground that the court had failed to timely provide
the surety notice of Gaston’s failure to appear as required by MCL 765.28(1). The court,
Michael M. Hathaway, J., denied the motion in reliance on In re Bail Bond Forfeiture (People v
Moore), 276 Mich App 482 (2007), which held that a court’s failure to comply with the seven-
day notice provision of MCL 765.28(1) does not bar forfeiture of a bail bond posted by a surety,
and entered a judgment against Gaston for $150,000 and against the surety for $50,000. The
surety appealed. The Court of Appeals, FORT HOOD, P.J., and METER and MURRAY, JJ., affirmed
in an unpublished opinion per curiam on the basis of Moore. The Supreme Court granted the
surety’s application for leave to appeal. 493 Mich 936 (2013).
In a unanimous opinion by Justice MARKMAN, the Supreme Court held:
A court’s failure to comply with the seven-day notice provision of MCL 765.28(1) bars
forfeiture of a bail bond posted by a surety. When a statute provides that a public officer shall
undertake some action within a specified period of time, and that period is provided to safeguard
another’s rights or the public interest, it is mandatory that the action be undertaken within that
period, and noncompliant public officers are prohibited from proceeding as if they had complied
with the statute. The Court of Appeals judgment was reversed, the trial court’s orders were
vacated to the extent that they forfeited the bail bond posted by the surety, and Moore was
overruled.
1. MCL 765.28(1) provides that after a default is entered for an accused who was
released on bail, the court “shall” give each surety immediate notice not to exceed seven days
after the date of the failure to appear. Moore’s holding that failure to provide the required notice
does not bar forfeiture of the bail bond was based on the general rule set forth in Sutherland’s
treatise on statutory construction that if a provision of a statute states a time for performance of
an official duty, without any language denying performance after a specified time, it is directory,
not mandatory. However, Moore failed to recognize the consequence of the fact that when the
Legislature amended MCL 765.28(1) in 2002, it changed “may” to “shall,” as a result of which
the statute became mandatory. In addition, Moore failed to recognize the rule set forth in Agent
of State Prison v Lathrop, 1 Mich 438, 444 (1850), that whenever the act to be done under a
statute is to be done by a public officer, and concerns the public interest or the rights of third
persons, which require the performance of the act, then it becomes the duty of the officer to do it.
Moore also failed to recognize the exception to Sutherland’s general rule, which states that when
the time period is provided to safeguard someone’s rights, it must be construed as mandatory.
The Lathrop rule and Sutherland’s exception applied to MCL 765.28(1) because the seven-day
period provides three such safeguards: the surety’s right to an effective opportunity to secure the
defendant before having its bond forfeited, the interests of the public in being protected from
individuals who have been charged with crimes, and the public’s interest in justice under law by
ensuring that absconders who have been charged with crimes timely face those charges in court.
Accordingly, Moore was overruled.
2. The remedy for a public entity’s failure to follow a mandatory time period is that the
public entity cannot perform its official duty after the time requirement has passed. A public
entity’s power only arises from the performance of the acts required to be done by law.
Therefore, when a public entity does not perform its statutory obligations in a timely manner and
fails to respect the statutory preconditions to its exercise of authority, it lacks the authority to
proceed as if it had. Accordingly, in this case, the court could not require the surety to pay the
surety bond because the court had failed to provide the surety notice within seven days of
defendant’s failure to appear, as MCL 765.28(1) required. Any other interpretation of the statute
would have rendered the seven-day-notice requirement nugatory.
Court of Appeals judgment reversed; trial court orders vacated to the extent they forfeited
the bail bond and ordered the surety to pay $50,000.
Chief Justice YOUNG, concurring, fully joined the majority opinion but wrote separately
to emphasize that the exception to the general rule that courts must refrain from creating
remedies for violations of statutory mandates when the Legislature has not seen fit to do so is a
narrow one that restrains the performance of official action. This exception is not a basis for
courts to fashion additional extrastatutory remedies that permit official action.
Justice VIVIANO, joined by Justices CAVANAGH and MARKMAN, concurring, agreed that,
absent compliance with the notice provision in MCL 765.28(1), a trial court may not order a
surety to forfeit its bond; however, he would also have held that because the notice provision is
mandatory, a court’s noncompliance with it mandates discharge of the bond.
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice: Justices:
Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED June 25, 2014
STATE OF MICHIGAN
SUPREME COURT
____________________________________
In re FORFEITURE OF BAIL BOND
____________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 146033
COREY DESHAWN GASTON,
Defendant,
and
YOU WALK BAIL BOND AGENCY,
INC.,
Surety-Appellant.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This Court granted leave to appeal to address whether the trial court’s failure to
provide the appellant-surety notice within seven days of defendant’s failure to appear, as
is required by MCL 765.28, bars forfeiture of the bail bond posted by the surety. Relying
on In re Forfeiture of Bail Bond (People v Moore), 276 Mich App 482; 740 NW2d 734
(2007), the Court of Appeals held that a court’s failure to comply with the seven-day
notice provision of MCL 765.28(1) does not bar forfeiture of a bail bond posted by a
surety. Because we conclude that Moore was wrongly decided, we hold that a court’s
failure to comply with the seven-day notice provision of MCL 765.28(1) does bar
forfeiture of a bail bond posted by a surety. When a statute provides that a public officer
“shall” undertake some action within a specified period of time, and that period of time is
provided to safeguard another’s rights or the public interest, as with the statute at issue
here, it is mandatory that such action be undertaken within the specified period of time,
and noncompliant public officers are prohibited from proceeding as if they had complied
with the statute. Accordingly, we reverse the judgment of the Court of Appeals and
vacate the trial court’s orders to the extent that the orders forfeited the bail bond posted
by the surety and ordered the surety to pay $50,000.
I. FACTS AND HISTORY
Defendant Corey Deshawn Gaston was charged with one count of first-degree
home invasion, MCL 750.110a(2); two counts of first-degree criminal sexual conduct,
MCL 750.520b(1)(a) and (2)(b); one count of second-degree criminal sexual conduct,
MCL 750.520c(1)(a); and one count of kidnapping, MCL 750.350. Appellant-surety
posted a $50,000 bond to obtain defendant’s release from jail. On February 7, 2008,
defendant failed to appear at a scheduled conference, and on February 11, 2008,
defendant failed to appear for trial. The trial court ordered that defendant be rearrested
2
and remanded to jail and that his bond be forfeited. Three years later, on February 8,
2011, the trial court sent notice to the surety to appear to show cause why judgment
should not enter for forfeiture of the full amount of the bond. In response, the surety filed
a motion to set aside the forfeiture based on the trial court’s failure to timely provide
notice of defendant’s failure to appear, as is required by MCL 765.28(1). Relying on
Moore, the trial court denied the motion and entered a judgment against defendant in the
amount of $150,000 and against the surety in the amount of $50,000.
The surety appealed in the Court of Appeals, arguing that the trial court’s failure
to provide it notice of defendant’s failure to appear within seven days, as is required by
MCL 765.28(1), should have barred the forfeiture of the surety’s bond. The Court of
Appeals, also relying on Moore, affirmed the trial court and held that the trial court’s
failure to provide the surety notice of defendant’s failure to appear within seven days did
not foreclose the court from entering judgment on the forfeited bond. In re Forfeiture of
Bail Bond (People v Gaston), unpublished opinion per curiam of the Court of Appeals,
issued September 13, 2012 (Docket No. 305004).
The surety then appealed in this Court, presenting the same argument that it had
before the trial court and the Court of Appeals. This Court granted leave to appeal to
address
(1) whether a court’s failure to comply with the 7-day notice provision of
MCL 765.28 bars forfeiture of a bail bond posted by a surety and (2)
whether In re Forfeiture of Bail Bond (People v Moore), 276 Mich App 482(2007), holding that the 7-day notice provision is directory rather than
mandatory, was correctly decided. [In re Forfeiture of Bail Bond (People v
Gaston), 493 Mich 936 (2013).]
3
Defendant is still at large and is currently identified as one of the United States Marshals’
fifteen most wanted fugitives.1
II. STANDARD OF REVIEW
Questions of statutory interpretation are questions of law that are reviewed de
novo. Martin v Beldean, 469 Mich 541, 546; 677 NW2d 312 (2004). Questions relating
to the proper interpretation of court rules are also questions of law that are reviewed de
novo. People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013).
III. ANALYSIS
MCL 765.28(1) provides in pertinent part:
If default is made in any recognizance in a court of record, the
default shall be entered on the record by the clerk of the court. After the
default is entered, the court shall give each surety immediate notice not to
exceed 7 days after the date of the failure to appear. The notice shall be
served upon each surety in person or left at the surety’s last known business
address. Each surety shall be given an opportunity to appear before the
court on a day certain and show cause why judgment should not be entered
against the surety for the full amount of the bail or surety bond. If good
cause is not shown for the defendant’s failure to appear, the court shall
enter judgment against the surety on the recognizance for an amount
determined appropriate by the court but not more than the full amount of
the bail, or if a surety bond has been posted the full amount of the surety
bond. If the amount of a forfeited surety bond is less than the full amount
of the bail, the defendant shall continue to be liable to the court for the
difference, unless otherwise ordered by the court. [Emphasis added.]
MCR 6.106(I)(2) provides in pertinent part:
If the defendant has failed to comply with the conditions of release,
the court may issue a warrant for the arrest of the defendant and enter an
1
See U.S. Marshals, Fugitive Investigations - 15 Most Wanted,
(accessed
June 10, 2014) [http://perma.cc/Z992-2ZMQ].
4
order revoking the release order and declaring the bail money deposited or
the surety bond, if any, forfeited.
(a) The court must mail notice of any revocation order immediately
to the defendant at the defendant’s last known address and, if forfeiture of
bail or bond has been ordered, to anyone who posted bail or bond.
[Emphasis added.]
In this case, there is no question that the trial court failed to provide the surety
notice within seven days after the date of defendant’s failure to appear, as is required by
MCL 765.28(1), or provide the surety notice of the revocation order “immediately,” as is
required by MCR 6.106(I)(2). The question at issue is whether this failure to provide the
required notice bars forfeiture of the bail bond posted by the surety. Both the trial court
and the Court of Appeals relied on Moore, 276 Mich App at 495, in concluding that the
failure to provide notice does not bar such a forfeiture.
In Moore, the trial court entered a judgment against the surety even though the
trial court had not timely notified the surety, and the Court of Appeals denied leave to
appeal. This Court remanded to the Court of Appeals for consideration as on leave
granted. In re Forfeiture of Bail Bond (People v Moore), 474 Mich 919 (2005). On
remand, the Court of Appeals affirmed the trial court and held that “ ‘ “[t]he general rule
is that if a provision of a statute states a time for performance of an official duty, without
any language denying performance after a specified time, it is directory.” ’ ” Moore, 276
Mich App at 494-495, quoting People v Smith, 200 Mich App 237, 242; 504 NW2d 21
(1993), quoting 3 Sutherland, Statutory Construction (5th ed), § 57:19, pp 47-48.
Relying on this “general rule,” the Court of Appeals held that “the seven-day notice
provision of MCL 765.28(1) is directory, not mandatory” and therefore concluded that
“[d]espite the trial court’s six-month delay in notifying [the surety] of [defendant’s]
5
failure to appear, . . . the statute did not prevent the trial court from entering judgment
against [the surety] on the forfeited surety bond.” Moore, 276 Mich App at 495.
The Court of Appeals’ decision in Moore was not appealed in this Court, and
therefore this is the first opportunity for this Court to consider whether Moore was
correctly decided. For the reasons that follow, we conclude that it was not. To begin
with, Moore gave only passing consideration to the “general rule” that “ ‘[s]hall’ is a
mandatory term, not a permissive one.” People v Francisco, 474 Mich 82, 87; 711
NW2d 44 (2006); see also Fradco, Inc v Dep’t of Treasury, 495 Mich 104, 114; 845
NW2d 81 (2014) (“The Legislature’s use of the word ‘shall’ . . . indicates a mandatory
and imperative directive.”); 3 Sutherland, Statutory Construction (7th ed), § 57:19, pp 75-
76 (“Generally, when the word ‘shall’ is used in referring to a time provision, it should be
construed to be mandatory.”).
Along similar lines, Moore failed to recognize the consequence of the fact that the
Legislature amended MCL 765.28(1) in 2002, changing “may” to “shall.” See Fay v
Wood, 65 Mich 390, 397; 32 NW 614 (1887) (recognizing that the significance of a
statutory amendment changing “should” to “shall” is that the statute becomes
“mandatory”). Prior to 2002, MCL 765.28(1) provided that the court “may give the
surety or sureties twenty days’ notice.” (Emphasis added.) In 2002, the Legislature
amended MCL 765.28(1) to provide that the court “shall give each surety immediate
notice not to exceed 7 days after the date of the failure to appear.” 2002 PA 659(emphasis added). While the term “may” is permissive, not mandatory, Browder v Int’l
Fidelity Ins Co, 413 Mich 603, 612; 321 NW2d 668 (1982), the term “shall,” as
discussed, is a “mandatory term, not a permissive one,” Francisco, 474 Mich at 87.
6
Therefore, in 2002, the Legislature changed the notice provision of MCL 765.28(1) from
being permissive to being mandatory. Yet, despite this change, Moore continued to
interpret the notice provision of MCL 765.28(1) as being permissive rather than
mandatory. Moore construed the statute as if it still read “may,” thereby rendering the
2002 amendment of the statute nugatory even though it is well established that “ ‘[c]ourts
must give effect to every word, phrase, and clause in a statute and avoid an interpretation
that renders nugatory or surplusage any part of a statute.’ ” People v Couzens, 480 Mich
240, 249; 747 NW2d 849 (2008) (citation omitted).
Moore also failed to recognize that this Court has long held that “ ‘whenever the
act to be done under a statute is to be done by a public officer, and concerns the public
interest or the rights of third persons, which require the performance of the act, then it
becomes the duty of the officer to do it.’ ” Agent of State Prison v Lathrop, 1 Mich 438,
444 (1850) (citation omitted). In Lathrop, this Court concluded that because the
applicable statutory notice provision-- which provided that it “shall be the duty of the
agent to give at least twenty days’ notice,” id. at 439 (emphasis added)-- “was intended
for the benefit of the state as well as those who may contract with it,” “compliance with
the duties set forth [were] necessary to carry into effect the object of the law . . . .” Id. at
444. In other words, because the statutory notice provision was designed to protect the
public interest, as well as the rights of third persons, it must be construed as a mandatory
provision. Cf. Fay, 65 Mich at 401 (“Statutes fixing a time for the doing of an act are
considered as only directory, where the time is not fixed for the purpose of giving a party
a hearing, or for some other purpose important to him.”); Hooker v Bond, 118 Mich 255,
257; 76 NW 404 (1898), quoting Cooley, Taxation (2d ed), p 289 (“ ‘The fixing of an
7
exact time for the doing of an act is only directory, where it is not fixed for the purpose of
giving the party a hearing, or for any other purpose important to him.’ ”). Because
“ ‘[t]his Court [must] presume that the Legislature of this state is familiar with the
principles of statutory construction,’ ” Nation v W D E Electric Co, 454 Mich 489, 494-
495; 563 NW2d 233 (1997) (citation omitted), we must presume that when the
Legislature amended MCL 765.28(1) in 2002, changing “may” to “shall,” it intended
“shall” to mean what this Court has held that “shall” means since at least 1850.
The Lathrop rule is very similar to the rule set forth in 3 Sutherland, § 57:19,
pp 72-74:
It is difficult to conceive of anything more absolute than a time
limitation. And yet, for obvious reasons founded in fairness and justice,
time provisions are often found to be directory where a mandatory
construction might do great injury to persons not at fault, as in a case
where slight delay on the part of a public officer might prejudice private
rights or the public interest. The general rule is that if a provision of a
statute states a time for performance of an official duty, without any
language denying performance after a specified time, it is directory.
However, if the time period is provided to safeguard someone’s rights, it is
mandatory, and the agency cannot perform its official duty after the time
requirement has passed. [Emphasis added.]
While Moore quoted and relied on the “general rule” articulated by Sutherland, it
completely ignored the sentences immediately preceding and following Sutherland’s
articulation of the rule. That is, while Moore adopted Sutherland’s general rule, it did not
give any consideration to Sutherland’s explanation regarding when this general rule
should and should not be applied. Specifically, in the sentence that immediately follows
the general rule, Sutherland explained that “if the time period is provided to safeguard
8
someone’s rights, it is mandatory, and the agency cannot perform its official duty after
the time requirement has passed.” Id.
This exception to Sutherland’s general rule would certainly apply in this case
because the time period at issue was clearly “provided to safeguard someone’s rights.”
Cf. Smith, 200 Mich App at 243 (“The time limits were created not to protect the rights of
accused drunk drivers, but to prod the judiciary, and the prosecutors who handle drunk
driving cases, to move such cases with dispatch.”). Indeed, it was provided to safeguard
both the rights of the surety and the public interest. Requiring the court to provide notice
to the surety within seven days of the defendant’s failure to appear clearly protects the
rights of the surety by enabling the surety to promptly initiate a search for the defendant,
which is obviously significant to the surety because “[a] surety is generally discharged
from responsibility on the bond when the [defendant] has been returned to custody or
delivered to the proper authorities . . . .” Moore, 276 Mich App at 489; see also
MCL 765.26(2) (“Upon delivery of his or her principal at the jail by the surety or his or
her agent or any officer, the surety shall be released from the conditions of his or her
recognizance.”). A surety’s ability to apprehend an absconding defendant is directly
affected by whether the surety has received prompt notice of the defendant’s failure to
appear because the former’s ability to recover and produce an absconding defendant
declines with the passage of time. Therefore, the statutory notice provision upholds the
surety’s right to an effective opportunity to secure the defendant before having its bond
forfeited.
At the same time, the notice provision protects the interests of the public in an
equally obvious manner because the sooner the court notifies the surety of the
9
defendant’s failure to appear, the sooner the surety can begin to search for the defendant,
the more effective its pursuit will be, and the sooner the defendant can be placed behind
bars and prevented from further harming members of the public.2 See Helland &
Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail
Jumping, 47 J L & Econ 93, 94 (2004) (noting an expectation that “the felony defendants
who fail to appear are the ones most likely to commit additional crimes”); see also
Moore, 276 Mich App at 489 (holding that a surety is authorized to arrest and deliver a
defaulting defendant to the jail or to the county sheriff); MCL 765.26(1) (authorizing a
surety to arrest and deliver a defendant if the surety wishes to be relieved from
responsibility for the defendant). Providing timely notice to the surety also protects the
public’s interest in justice under law by ensuring that those who have been charged with
crimes, and who have subsequently absconded, timely face those charges in court. Thus,
there is a common interest served by the notice provision: a private interest of the surety
in being relieved of financial responsibility under the bond and a public interest in
facilitating the apprehension of an absconding defendant, both in order to protect the
safety of the public and to ensure a timely trial on the criminal charges.3
2
The prosecutor conceded at oral argument that the statutory notice provision is designed
to protect the public’s interest in the “seizure [or] recapture of the absconding defendant”
and that the government’s interest in collecting the bail money “doesn’t outweigh” the
public’s interest in “apprehending fugitives as [e]ffectively and as quickly as possible[.]”
3
Moreover, this public interest can also be viewed in terms of the private interest served
with regard to eyewitnesses and other potential witnesses at trial whose safety and
security are placed at particular risk by an absconding defendant.
10
The apprehension of absconding defendants is essential to the effective guarantee
of our criminal laws, and sureties play a critical role in this regard.4 As one commentator
has recognized, sureties are a necessary part of the apprehension process because “public
police are often strained for resources, and the rearrest of defendants who fail to show up
at trial is usually given low precedence.” Helland, 47 J L & Econ at 98. As a result, “the
probability of being recaptured is some 50 percent higher for those released on surety
bond relative to other releases,” id. at 113, and “[d]efendants released on surety bond
are . . . 53 percent less likely to remain at large for extended periods of time,” id. at 118.
These findings indicate that sureties are “effective at . . . recapturing defendants.” Id.
However, sureties can only be effective at recapturing defendants if they are aware that
there is an absconding defendant who needs to be recaptured-- hence the rationale for,
and the importance of, the statutory notice provision.
Moore also failed to recognize that the underlying rationale of Sutherland’s
general rule itself does not justify its application in the instant case. Although this
rationale is explained in the sentence that immediately precedes the general rule, the
Court of Appeals altogether failed to address it. The rationale is contained in the
observation that “time provisions are often found to be directory where a mandatory
construction might do great injury to persons not at fault, as in a case where slight delay
on the part of a public officer might prejudice private rights or the public interest.”
4
Sureties also play a critical role in the process of safeguarding defendants’
constitutional due process rights before trial.
11
3 Sutherland, § 57:19, pp 73-74.5 See, for example, Dolan v United States, 560 US 605;
130 S Ct 2533, 2539-2540; 177 L Ed 2d 108 (2010) (“The fact that a sentencing court
misses the statute’s 90-day deadline, even through its own fault or that of the
Government, does not deprive the court of the power to order restitution” because (a)
“the [statute’s] efforts to secure speedy determination of restitution is primarily designed
to help victims of crime secure prompt restitution rather than to provide defendants with
certainty as to the amount of their liability” and (b) “to read the statute as depriving the
sentencing court of the power to order restitution would harm those-- the victims of
crime-- who likely bear no responsibility for the deadline’s being missed and whom the
statute also seeks to benefit.”) (emphasis in the original).
By contrast, in the instant case, a mandatory construction would neither “do great
injury to persons not at fault” nor “prejudice private rights or the public interest.”
3 Sutherland, § 57:19, pp 73-74. Indeed, just the opposite is true. Not mandating timely
notice of the defendant’s failure to appear might well do great injury to persons not at
fault because, as explained earlier, if the surety does not know that the defendant failed to
5
The “exception” to Sutherland’s general rule and the underlying rationale of
Sutherland’s general rule are really two sides of the same coin. The underlying rationale
for construing time provisions as directory is that in some instances, mandatory
construction “might do great injury to persons not at fault, as in a case where slight delay
on the part of a public officer might prejudice private rights or the public interest,” while
the exception to the general rule is that “if the time period is provided to safeguard
someone’s rights, it is mandatory, and the agency cannot perform its official duty after
the time requirement has passed.” In other words, according to Sutherland, time
provisions should be construed as directory if a mandatory construction might prejudice
someone’s rights or the public interest, while time provisions should be construed as
mandatory if a directory construction might prejudice someone’s rights or the public
interest.
12
appear, the surety would not have begun searching for the defendant, and if the surety has
not begun searching for the defendant, not only would the defendant have remained free
during this period, possibly to do harm to other individuals, but the longer-term prospects
of apprehension would also have been diminished. For this reason, the “public interest”
in the instant case is not only not prejudiced by adopting a mandatory construction, but
would instead be prejudiced by not adopting a mandatory construction. The “private
rights” of the surety are also better protected by adopting a mandatory construction
because, as discussed earlier, the surety will be discharged from its financial obligation
under the bond once the surety finds and returns the defendant to the jail or the county
sheriff, which will certainly be easier if the surety is promptly notified of the defendant’s
failure to appear. Even the trial court in Moore acknowledged “the difficulty that a surety
might face in apprehending a [defendant] when the court fails to provide timely notice of
the [defendant’s] default.” Moore, 276 Mich App at 496.
Moore also failed to realize that Sutherland recognizes circumstances that compel
the necessity of mandatory constructions:
[S]ome limitations of time within which a public officer is to act
must be construed as mandatory. Such a construction is necessary where
failure to obey the time limitation embodies a risk of unknown injury to
public or private rights. [3 Sutherland, § 57:19, p 80.]
For the reasons already explained earlier, a court’s failure to notify the surety within
seven days of the defendant’s failure to appear “embodies a risk of unknown injury to
public or private rights.” If a court fails to provide the surety with timely notice of the
defendant’s failure to appear, a statutory scheme designed to create an incentive for third
parties to assist in the apprehension of defendants who abscond, commit new crimes, or
13
threaten other persons will almost certainly be rendered less effective and, as a result,
“persons not at fault” (i.e., members of the public) will almost certainly face a greater
threat from such defendants. The “private rights” implicated by a breach of
MCL 765.28(1)-- in this case, $50,000 of the resources of the surety-- are even more
obvious. Because “failure to obey the time limitation embodies a risk of unknown injury
to public [and] private rights,” a mandatory construction of the notice provision is
necessary.
To summarize, by relying exclusively on Sutherland’s general rule, Moore failed
to recognize that the fact that the time period at issue here safeguards both the rights of
another and the public interest is relevant not only with regard to our own caselaw, see
Lathrop, supra, but also with regard to (a) Sutherland’s exception to his “general rule,”
(b) Sutherland’s underlying rationale for his general rule, and (c) Sutherland’s
articulation of additional circumstances that compel a mandatory construction.
Sutherland indicates that the remedy for a public entity’s failure to follow a
mandatory time period is that the public entity “cannot perform its official duty after the
time requirement has passed.” 3 Sutherland, § 57:19, p 74. This is consistent with this
Court’s rule in Lathrop, in which we explained that a public entity’s “power only arises
from the performance of the acts required to be done” by law. Lathrop, 1 Mich at 445.
When a public entity does not perform its statutory obligations in a timely manner, and
fails to respect the statutory preconditions to its exercise of authority, it lacks the
authority to proceed as if it had. In this case, the consequence is that the court cannot
require the surety to pay the surety bond because the court failed to provide the surety
notice within seven days of defendant’s failure to appear, as the statute clearly requires.
14
Any other interpretation of the statute would render the seven-day notice requirement
entirely nugatory.
It is well established that
[w]e have no authority to treat any part of a legislative enactment, which is
not ambiguous in itself and is capable of reasonable application, as so far
unimportant that it is a matter of indifference whether it is complied with or
not. We must suppose the legislature saw sufficient reason for its adoption,
and meant it to have effect; and whether the reason is apparent to our minds
or not, we have no discretion to dispense with a compliance with the
statute. [Hoyt v East Saginaw, 19 Mich 39, 46 (1869).]
Therefore, in the instant case, we have no authority to treat the statutory notice provision
“as so far unimportant that it is a matter of indifference whether it is complied with or
not.” Because the statutory notice provision is a mandatory provision, it must be
complied with, and if it was not, the court may not proceed with its bond forfeiture
proceeding.6
In Moore, 276 Mich App at 494-495, the Court of Appeals relied on People v
Smith, 200 Mich App 237; 504 NW2d 21 (1993), and People v Yarema, 208 Mich App
54; 527 NW2d 27 (1994), to conclude that the surety was not entitled to a remedy for the
6
The prosecutor argues that MCR 2.613(A) bars relief. We respectfully disagree.
MCR 2.613(A) provides that “[a]n . . . error or defect in anything done or omitted by the
court or by the parties is not ground for . . . vacating, modifying, or otherwise disturbing a
judgment or order, unless refusal to take this action appears to the court inconsistent with
substantial justice.” Refusing to disturb the trial court’s judgment against the surety
would be “inconsistent with substantial justice” for the reasons explained earlier--
namely, given that the court did not uphold its end of the bargain by notifying the surety
within seven days of defendant’s failure to appear, it would be “inconsistent with
substantial justice” to require the surety to uphold its part of the bargain by paying the
judgment on the bond. It would also undermine the public’s interest in having the court
timely notify the surety so that the surety can quickly find and capture absconding
defendants.
15
court’s violation of the seven-day notice provision. However, Smith and Yarema actually
stand for the exact opposite proposition, because in those cases the Court of Appeals held
that the defendant was entitled to a remedy for the government’s failure to follow
statutory time limits. That is, in Smith and Yarema, the Court of Appeals held that the
remedy for the failure to arraign the defendant within 14 days, as required by
MCL 257.625b(1), was a dismissal without prejudice. Smith and Yarema in turn relied
on this Court’s decision in People v Weston, 413 Mich 371, 377; 319 NW2d 537 (1982).
Weston involved MCL 766.4, which states that the magistrate “shall set a day for a
preliminary examination not exceeding 14 days after the arraignment.” This Court held
that because the statute contains an “unqualified statutory command that the examination
be held within 12 days,” “[t]he failure to comply with the statute governing the holding of
the preliminary examination entitles the defendant to his discharge.” Weston, 413 Mich
at 376. Therefore, these cases actually undermine Moore’s assumption that there is no
remedy for a statutory violation unless the Legislature expressly states that there is a
remedy. See also In re Contempt of Tanksley, 243 Mich App 123, 128-129; 621 NW2d
229 (2000) (“Given the clear legislative mandate that a respondent be afforded a hearing
on a charged [personal protection order] violation within seventy-two hours, we hold that
a violation of the time limit expressed in MCL 764.15b(2)(a) or MCR 3.708(F)(1)(a)
demands dismissal of the charge.”).
Finally, Moore also relied on MCL 765.27 to conclude that “[t]he Legislature has
plainly declared that the trial court’s failure to provide proper notice of a principal’s
default does not bar or preclude the court’s authority to enter judgment on a forfeited
recognizance.” Moore, 276 Mich App at 495. MCL 765.27 provides:
16
No action brought upon any recognizance entered into in any
criminal prosecution, either to appear and answer, or to testify in any court,
shall be barred or defeated nor shall judgment thereon be arrested, by
reason of any neglect or omission to note or record the default of any
principal or surety at the time when such default shall happen, nor by
reason of any defect in the form of the recognizance, if it sufficiently
appear, from the tenor thereof, at what court the party or witness was bound
to appear, and that the court or a magistrate before whom it was taken was
authorized by law to require and take such recognizance. [Emphasis
added.]
Contrary to Moore’s assertion, MCL 765.27 does not refer to the trial court’s “failure to
provide proper notice of a principal’s default.” (Emphasis added.) Instead, it merely
refers to the failure “to note or record the default.” (Emphasis added.) In this case, there
is no question that the trial court did, in fact, “note or record” the default; it just did not
notify the surety of the default within seven days. Therefore, reliance on MCL 765.27 is
inapt.
For all these reasons, we conclude that Moore was wrongly decided, and therefore
we overrule it. Where a statute provides that a public officer “shall” do something within
a specified period of time and that time period is provided to safeguard someone’s rights
or the public interest, as does the statute here, it is mandatory, and the public officer is
prohibited from proceeding as if he or she had complied with the statutory notice period.7
7
We note that it makes no practical difference whatsoever whether the general rule is
expressed in the manner set forth in Sutherland (when a statute provides that a public
officer “shall” do something within a specified period of time, it is directory unless the
time period is provided to safeguard someone’s rights or the public interest) or in the
manner set forth in this opinion (when a statute provides that a public officer “shall” do
something within a specified period of time and the time period is provided to safeguard
someone’s rights or the public interest, it is mandatory). Both articulations lead to the
same result. We adopt the latter articulation, however, because it would seem to be the
case more often than not that when the Legislature has chosen to direct a public officer to
do something within a specified time, it has done so in order to safeguard another’s rights
17
IV. CONCLUSION
Because we conclude that Moore was wrongly decided, we overrule it and hold
that a court’s failure to comply with the seven-day notice provision of MCL 765.28(1)
bars forfeiture of a bail bond posted by a surety. When a statute provides that a public
officer “shall” do something within a specified period of time and that time period is
provided to safeguard someone’s rights or the public interest, as does the statute here, it is
mandatory, and the public officer who fails to act timely is prohibited from proceeding as
if he or she had acted within the statutory notice period. Accordingly, we reverse the
judgment of the Court of Appeals and vacate the trial court’s orders to the extent that the
orders forfeited the bail bond posted by the surety and ordered the surety to pay $50,000.
Stephen J. Markman
Robert P. Young, Jr.
Michael F. Cavanagh
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
or the public interest, and thus, more often than not, the directive would be mandatory
rather than directory. Moreover, the latter articulation has the considerable virtue of
communicating as the default position in interpreting the law that “shall” means “shall.”
Webster’s Seventh New Collegiate Dictionary (1967) (defining “shall” as “used to
express a command or exhortation”; “used in laws, regulations, or directives to express
what is mandatory”).
18
STATE OF MICHIGAN
SUPREME COURT
____________________________________
In re FORFEITURE OF BAIL BOND
____________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 146033
COREY DESHAWN GASTON,
Defendant,
and
YOU WALK BAIL BOND AGENCY, INC.,
Surety-Appellant.
YOUNG, C.J. (concurring).
I fully join the majority’s opinion. I write separately, however, to note that the
majority’s holding is perfectly consistent with the recognized narrow exception to the
general rule that courts must refrain from creating remedies for statutory violations where
the Legislature has not seen fit to provide a remedy.1
1
See Lash v City of Traverse City, 479 Mich 180, 193; 735 NW2d 628 (2007); People v
Anstey, 476 Mich 436, 445 n 7; 719 NW2d 579 (2006) (“Because the Legislature did not
provide a remedy in the statute, we may not create a remedy that only the Legislature has
the power to create.”).
Generally speaking, this Court applies the plain meaning of the words used in a
statute.2 When a statute contains a mandate but does not specify an accompanying
remedy for violating that mandate, courts must refrain from creating a remedy.3
However, when the legislative mandate is a time limitation imposed on the government,
this general rule of refraining from fashioning a remedy contains a notable exception:4 if
the time limitation is provided to safeguard the rights of a party, courts may provide a
limited remedy by precluding the government from acting in derogation of the mandate
and to the detriment of the protected party.5
This narrow exception, first recognized more than a century ago by this Court in
Agent of State Prison v Lathrop,6 does not vest courts with the unbridled authority to
fashion whatever remedy they deem just. Rather, the limited remedy provided by the
Lathrop exception, whether characterized by the majority or by this Court’s earlier
holdings, is properly understood as a restraint on official action, and it does not permit
2
See People v Wilcox, 486 Mich 60, 64; 781 NW2d 784 (2010).
3
See note 1 of this opinion.
4
This narrow exception is consistent with the general rule of statutory interpretation
reiterated by this Court in Lash v Traverse City, see note 1 of this opinion, and does not
provide for an extrastatutory remedy for the violation of a time limitation placed on an
official action. As the majority correctly notes, Sutherland’s characterization of the
general rule is that “if a provision of a statute states a time for performance of an official
duty, without any language denying performance after a specified time, it is directory.”
3 Sutherland, Statutory Construction (5th ed), § 57:19, p 74.
5
See Agent of State Prison v Lathrop, 1 Mich 438, 444 (1850); Fay v Wood, 65 Mich
390, 401; 32 NW 614 (1887); People v Smith, 200 Mich App 237, 242-243; 504 NW2d
21 (1993).
6
Lathrop, 1 Mich at 444.
2
courts to fashion additional extrastatutory remedies permitting official action.7 Because I
have previously identified the adverse consequences that occur when courts are free to
cast aside the Legislature’s intent under the guise of imposing fairness and equity,8 I am
compelled to underscore the limited scope of the relief available under the exception
outlined by the majority today. The narrow exception applied today, restraining the
performance of official action, provides no cognizable basis for courts to fabricate
remedies out of whole cloth.
Robert P. Young, Jr.
7
As the majority correctly notes, “the public officer who fails to act timely is prohibited
from proceeding as if he or she had acted within the statutory notice period.” (Emphasis
added.) This characterization is consistent with Sutherland’s, which states that “if the
time period is provided to safeguard someone’s rights, it is mandatory, and the agency
cannot perform its official duty after the time requirement has passed.” 3 Sutherland,
§ 57:19, p 74. Both of these statements align with this Court’s prior holding that time
limits for the performance of an official act “will be regarded as directory merely, unless
the nature of the act to be performed . . . show that the designation of time was
considered as a limitation of the power of the officer.” Lathrop, 1 Mich at 441 (emphasis
added; citation and quotation marks omitted).
8
Devillers v Auto Club Ins Ass’n, 473 Mich 562, 591; 702 NW2d 539 (2005) (“Indeed, if
a court is free to cast aside, under the guise of equity, a plain statute . . . simply because
the court views the statute as ‘unfair,’ then our system of government ceases to function
as a representative democracy. No longer will policy debates occur, and policy choices
be made, in the Legislature. Instead, an aggrieved party need only convince a willing
judge to rewrite the statute under the name of equity.”).
3
STATE OF MICHIGAN
SUPREME COURT
____________________________________
In re FORFEITURE OF BAIL BOND
____________________________________
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 146033
COREY DESHAWN GASTON,
Defendant,
and
YOU WALK BAIL BOND AGENCY, INC.,
Surety-Appellant.
VIVIANO, J. (concurring).
The majority concludes that because compliance with the notice requirement in
MCL 765.28(1) is mandatory, a court is prohibited from ordering forfeiture of a bail bond
if the court has not complied with the statutory notice requirement. I agree, but I write
separately because I believe the applicable rule of statutory construction also requires
discharge of a surety’s bond when a trial court fails to provide timely notice to the surety.
I. ANALYSIS
The majority and the Chief Justice agree on the applicable rule of statutory
construction, although they state it differently. The majority says that, when an official
fails to perform a duty within a mandatory time limit, “noncompliant public officers are
prohibited from proceeding as if they had complied with the statute.”1 The Chief Justice
says that when a statute imposes a time limit “to safeguard the rights of a party, courts
may provide a limited remedy by precluding the government from acting in derogation of
the mandate and to the detriment of the protected party.”2 However this rule is stated, I
believe it requires discharge of the surety’s bond.
There are two ways that a trial court can “proceed as if it had complied with the
statute.” First, the court can forfeit the bond and collect a monetary judgment from the
surety.3 Second, the court can rely on the bond to motivate the surety to find the
absconding defendant so that the surety can have the forfeiture set aside and the bond
discharged.4 In either scenario, the court receives a benefit based on its compliance with
the notice provision of the statute.
Likewise, there are two ways that a court can act “to the detriment” of a surety
after failing to provide immediate notice not to exceed seven days after a defendant’s
failure to appear, as required by MCL 765.28(1). First, a court can order forfeiture of the
surety’s bond, and enter a judgment against the surety for the full amount of the bond.
1
Ante at 2 (emphasis added).
2
Ante at 2 (emphasis added).
3
MCL 765.28(1).
4
See MCL 765.28(2). To qualify to have the forfeiture set aside and the bond
discharged, the surety must satisfy certain conditions, including (1) fully paying the
judgment within 56 days after the forfeiture judgment was entered, MCL 765.28(3), and
(2) apprehending the defendant within one year from the date of the forfeiture judgment,
MCL 765.28(2).
2
The majority’s holding prevents this type of injury. The second way a trial court can
injure a surety is by retaining a surety’s bond. By retaining a bond after failing to give
the statutorily required notice, a trial court encumbers a surety with an obligation that, as
the majority explains, the surety has little to no chance of ever being able to fulfill.5 This
injury is no less real than the injury of paying a judgment—a surety’s financial capacity
to bond out other defendants will be compromised by a debt that, through no fault of its
own, it will most likely never be able to discharge.6
Unless noncompliance with MCL 765.28(1) requires discharge of a surety’s bond,
a trial court will be able to perpetuate a surety’s injury indefinitely even if the court does
not comply with the mandatory language of the statute. Furthermore, by retaining the
bond in such a case, a trial court will be able to “proceed as if it had complied” with its
statutory duty—the court would be free to retain a bond in the hope of motivating a
surety to find an absconding defendant, even if the trail has grown cold because of the
trial court’s own nonfeasance. This result would be inconsistent with the rule of statutory
construction on which the majority and the Chief Justice rely. If the governing rule is
that “noncompliant public officers are prohibited from proceeding as if they had
complied with the statute,” then noncompliance requires discharge of the bond.
Otherwise, the statute’s notice requirement will be “directory” because trial courts will
remain free to disregard their notice obligations “to the detriment” of sureties. Absent
5
Ante at 9-11, 12-14.
6
Furthermore, if the surety had posted any collateral for its bond, the Chief Justice’s rule
would allow the court to retain the collateral in escrow indefinitely, again, through no
fault of the surety, even though the court would never be able to collect the collateral.
3
discharge, trial courts will not be restrained from further action in derogation of the
statute.
Contrary to the Chief Justice’s suggestion, to require discharge in this case would
not be to “cast aside the Legislature’s intent under the guise of fairness and equity.”7 Nor
would doing so amount to “fabricat[ing]” a remedy “out of whole cloth.”8 As I have
explained, requiring the trial court to discharge the surety’s bond is the logical
consequence of the Chief Justice’s own stated rule of statutory construction. The Chief
Justice offers no account of how a trial court would not be proceeding in derogation of its
“mandate and to the detriment of the protected party” if it retained a bond after failing to
provide the notice required by statute.9 Unfortunately, even though this case squarely
presents the question and this Court has invoked the legal principles necessary to answer
it, sureties in the state of Michigan will have to await some future case to learn whether a
trial court’s noncompliance with MCL 765.28(1) requires discharge of a surety’s bond.
II. CONCLUSION
I agree with the majority that, absent compliance with the notice provision in
MCL 765.28(1), a trial court may not order a surety to forfeit its bond. However, I would
7
Ante at 3.
8
Ante at 3.
9
Further, it is hard for me to conclude that the Legislature intended to create a legal
fiction—a new class of security that must remain pledged but can never be collected—
without uttering even a single word on the subject.
4
also hold that because the notice requirement in MCL 765.28(1) is mandatory, a court’s
noncompliance with that provision mandates discharge of the bond.
David F. Viviano
Michael F. Cavanagh
Stephen J. Markman
5