ABC BAIL BONDS, INC. VS. GLENN A. GRANT (C-000075-17, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3961-17T2

ABC BAIL BONDS, INC.,

Plaintiff-Appellant,

APPROVED FOR PUBLICATION

v. June 3, 2019

APPELLATE DIVISION

GLENN A. GRANT, in his official

capacity as Acting Administrative

Director of the Administrative

Office of the Courts,

Defendant-Respondent.

Argued March 6, 2019 – Decided June 3, 2019

Before Judges Alvarez, Nugent and Reisner.

On appeal from Superior Court of New Jersey,

Chancery Division, Mercer County, Docket No. C-

000075-17.

John S. Furlong argued the cause for appellant

(Furlong & Krasny, attorneys; John S. Furlong, of

counsel and on the brief).

Joseph C. Fanaroff, Assistant Attorney General,

argued the cause for respondent (Gurbir S. Grewal,

Attorney General, attorney; Melissa H. Raksa,

Assistant Attorney General, of counsel; Joseph C.

Fanaroff, on the brief).

The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

Plaintiff ABC Bail Bonds, Inc., appeals from the trial court's April 6,

2018 order dismissing its complaint challenging the Supreme Court's authority

to revise the guidelines for bail forfeiture remittitur. We affirm for the reasons

stated in Judge Paul Innes's written opinion and the reasons stated below.

As in the past, the Administrative Office of the Courts (AOC), under the

Director's signature, issued a directive regarding remittitur—in this case, the

disputed Administrative Directive #22-17, "Bail and Bail Forfeitures--

Revisions to Procedures and Forms" (Aug. 7, 2017)—intended to conform the

prior guidelines to newly adopted amendments to Rules 3:26-6 and 7:4-5. The

amended rules, like the Directive, were issued after a State of New Jersey

Commission of Investigation (SCI) report, Inside Out, Questionable and

Abusive Practices in New Jersey's Bail-Bond Industry (May 2014). The SCI

report was highly critical of the State's bail bond system, and resulted in the

Court's creation of the Bail Judge Subcommittee of the Conference of Criminal

Presiding Judges (BJS) to evaluate the State's bail system, including the bail

forfeiture recovery process.

The February 2016 BJS report recommended revisions to the standards

for remission of bail forfeitures, making the length of time a defendant was a

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fugitive the primary factor for consideration. Only when a judge finds

"exceptional circumstances," should remission be allowed beyond one year.

After the report was published, the rules were amended, providing that

remission of forfeited bail accord with the revised remission guidelines. 1

ABC filed a complaint seeking declaratory judgment after the issuance

of the Directive, alleging that it was an unconstitutional encroachment on

legislative authority, should be applied only prospectively, and effectuated an

unlawful material change in the terms of existing surety-bond contracts.

Retroactivity is a key issue for ABC, which contends that it effectively stopped

writing bonds in New Jersey after the adoption of the Criminal Justice Reform

Act, N.J.S.A. 2A:162-15 to -26, but continues to have millions of dollars

outstanding in potential liability because more than a thousand bonds remain

in place as of September 2017.

The parties agreed that no discovery was necessary, and that the matter

could be resolved summarily under Rule 4:67-1. After hearing oral argument,

Judge Innes dismissed the complaint on summary judgment.

1

After the entry of a judgment of forfeiture, it may "be set aside, in whole or

in part, pursuant to the court rules, and/or administrative directives, including

but not limited to the Revised Remission Guidelines, upon such conditions as

[the court] imposes." R. 3:26-6(b); R. 7:4-5(b).

A-3961-17T2

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Judge Innes found that ABC had not met its burden of proof establishing

that the Directive was unconstitutional. He reasoned that the revised

guidelines were fashioned to address an important problem greatly affecting

the public interest, were not arbitrary and unreasonable, and were a proper

exercise of police power. Thus, he dismissed the first count of ABC's

complaint.

With regard to count two, Judge Innes concluded, after applying the

"sole outcome" test, 2 that the revised guidelines embodied only procedural

devices intended to advance the efficient administration of justice.

Additionally, since the revised guidelines left untouched a trial judge's

ultimate authority to decide the matters at his or her discretion, including the

grant of remittitur beyond the year a defendant was in fugitive status when

"extraordinary circumstances" are found, they did not outright control a judge's

decision-making. Hence, although the guidelines dictated process, the final

2

The "sole outcome" test is used to determine whether a rule is substantive or

procedural for purposes of rule interpretation. While substantive law defines

rights and duties, procedural law provides the mechanism through which such

rights and duties are enforced in the courts. Winberry v. Salisbury, 5 N.J. 240,

247-48 (1950). "If the rule can determine in and of itself the outcome of the

proceeding, it is generally substantive. If it is but one step in the ladder to final

determination and can effectively aid a court function, it is procedural . . . and

within the Supreme Court's power of rule promulgation." New Jersey State

Bar Ass'n v. State, 387 N.J. Super. 24, 48-49 (App. Div. 2006) (quoting Suchit

v. Baxt, 176 N.J. Super. 407, 427 (Law Div. 1980)).

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decision as to the merits, as always, rested with the judge deciding the matter

based on the proofs presented in the individual case.

Judge Innes did not consider the guidelines to impinge on contractual

rights, and dismissed count three accordingly. He opined that, by placing

bonds with the judiciary, bail bondsmen and the surety had submitted to the

Court's authority to control the administration of the criminal justice system.

And that system had been subject to the Court's control, rules, and guidelines

since 1958. He further rejected ABC's argument that the Directive should be

applied only prospectively, because it was based on case law addressing

substantive, not procedural, changes in the law.

On appeal, ABC raises the following points of error:

POINT ONE

THE TRIAL COURT ERRED IN FINDING THE

ENACTMENT OF THE REVISED REMISSION

GUIDELINES FOR RESOLVING BAIL

FORFEITURE CASES A LAWFUL EXERCISE OF

THE COURT'S RULE-MAKING POWER UNDER

ARTICLE VI OF THE NEW JERSEY

CONSTITUTION.

POINT TWO

THE TRIAL COURT ERRED IN RULING THE

REVISED REMISSION GUIDELINES FOR

RESOLVING BAIL FORFEITURE CASES APPLY

RETROACTIVELY.

A-3961-17T2

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I.

Our review of the trial court's summary judgment order is de novo. See

Templo Fuente DeVida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199

(2016). We employ the same standard on appeal as did the trial court initially

in deciding the motion. Ibid.; Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995).

It is well-established that the Court has rule-making authority over all

state courts. See N.J. Const. art. VI, § 2, ¶ 3; see also Winberry, 5 N.J. at

247-48. As Judge Innes observed, ABC bears the burden of overcoming the

presumption of reasonableness that attaches to the Court's rule-making

authority. Am. Trial Lawyers Ass'n v. N.J. Sup. Ct., 126 N.J. Super. 577, 589-

90 (App. Div. 1974).

We have said:

the Court's constitutional authority over practice and

procedure and consequently over the administration of

justice by the court system . . . "flows from and is

vested by organic law. It is necessarily paramount and

exclusive as to matters that are central to the judiciary.

The Court's authority with respect to the

administration of the courts is far-reaching; it

encompasses the entire judicial structure and

necessarily covers all aspects and incidents related to

the justice system."

[State v. Simpson, 365 N.J. Super. 444, 450 (App.

Div. 2003) (citations omitted).]

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In Simpson, a bail bond company unsuccessfully challenged the then newly

instituted procedure whereby insurers who did not satisfy forfeited bails were

removed from a registry authorizing them to write bonds, and barring them

from issuing new bonds. We observed:

[i]t is difficult to conceive of a matter more central to

the administration of the criminal justice system than

the appearance of defendants before the court as the

court requires. At the same time, the Court has the

obligation to protect the constitutional right to bail.

But that constitutional right is clearly qualified by,

among other limitations, compliance with the

conditions of bail not only by the principal but also by

the surety.

[Id. at 451.]

Both legislative and executive authority are also implicated in the regulation

and control of "the bail bond business." Id. at 452. Furthermore, "[t]here is no

cognizable theory based on separation of powers or any other doctrine that

could reasonably restrain the Court from taking such a step to protect the

administration of the criminal courts." Ibid. If the Court can lawfully ban

insurers from issuing bail bonds until they satisfy outstanding judgments,

surely the Court can promulgate guidelines for remission.

Simpson followed the Court's precedents regarding the subject. Thus,

ABC's contention that the revision is unconstitutional, or an overreach into the

Legislature's province, must fail because of the Court's well-established

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obligation to administer the criminal justice system while protecting a

defendant's right to bail. The Directive does not exceed the Court's rule-

making authority, does not impermissibly modify the Court's remittitur

precedents in Hyers-Peace,3 and does not make substantive law through rule-

making. The SCI and BJS reports detailed the serious problems around the

state in the collection of forfeited bails, the lack of uniformity in collection

practices, and the shockingly low percentage of funds bail bond companies

actually paid. The Directive merely recharts the prior approach to the

forfeiture and remission of bails in order to ensure "compliance with the

conditions of bail not only by the principal but also by the surety." Simpson,

365 N.J. Super. at 451.

3

The Hyers court expanded on the prior version of Rule 3:26-6(b) permitting

bail to be set aside if its enforcement was not required "in the interests of

justice." State v. Hyers, 122 N.J. Super. 177, 180 (App. Div. 1973). Finding

this standard alone to be "too restrictive" the court introduced several

additional factors to be considered. Ibid. Soon after, the Supreme Court

approved of the Hyers criteria. State v. Peace, 63 N.J. 127, 129 (1973)

(adopting the factors outlined by Hyers, and adding the "intangible element of

injury to the public interest in almost any case where a defendant deliberately

fails to make an appearance" should also be considered). The "Hyers-Peace"

factors were further refined by Judge Pressler in State v. Clayton, 361 N.J.

Super. 388, 393 (App. Div. 2003), and eventually incorporated into the revised

2007 and 2008 Remittitur Guidelines.

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N.J.S.A. 2A:162-8 vests in trial courts the discretion to fix the amounts

of remittitur. That authority remains unaltered by the Directive, in fact, the

first page states:

The decision to remit bail, as well as the amount

of bail, are matters within the sound discretion of the

trial judge. This exercise of discretion should adhere

to the following policy concerns that have been

expressed over the years: (1) The necessity of

providing an incentive to the surety to take active and

reasonable steps to recapture a fugitive defendant,

and; (2) That if remission were unreasonably

withheld, corporate sureties might be overcautious in

their willingness to post bail.

[Administrative Directive #22-17, "Bail and Bail

Forfeitures -- Revisions to Procedures and Forms"

(Attachment D, Revised Remission Guidelines) (Aug.

7, 2017).]

Certainly, as ABC points out, the one-year "cap" is a significant addition to

case law and prior guidelines:

The court's primary focus under these Guidelines in

determining whether to set aside forfeiture and the

amount to remit is the length of time the defendant is a

fugitive. See factor 1. This factor is calculated from

the date of the defendant's failure to appear in court

and the court's issuance of a bench warrant. The

remission amount is based upon defendant's time at

large, which is limited to a one-year period.

Thereafter, 100% of the bail is forfeited unless

exceptional circumstances are demonstrated by the

surety.

[Ibid.]

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But the Directive, by establishing parameters within which discretion is to be

exercised in the ordinary course, nonetheless retains the trial court's authority

to go beyond the term when it finds "exceptional circumstances" have been

established.

The Court clearly has the authority to revise the remittitur guidelines

after the amendments to the rules. The changes were procedural in nature, and

ABC's argument does not convince us otherwise. See Winberry, 5 N.J. at 247-

48; Simpson, 365 N.J. Super. at 451.

II.

ABC also contends that the Directive interferes with vested rights in

bonds it has issued, and that it effectuates a material change to existing bail

bond contracts.4 This argument is not convincing.

There can be no vested right in bail money forfeited to a court

attributable to a defendant's failure to appear; it is illogical to suggest

otherwise. Despite ABC's characterization, a failure to appear triggering

forfeiture is simply not the presumed outcome of a defendant's release on bail.

Moreover, ABC presented no legally competent evidence to support its claim

4

ABC's counsel indicated at oral argument that ABC wished to waive the

argument regarding a material change of circumstances. Because it was raised

in the brief, we nonetheless address the point here.

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that the revised guidelines materially increased its risk on the outstanding

bonds. See State v. Ceylan, 352 N.J. Super. 139, 143 (App. Div. 2002).

Woven into ABC's argument is the point that its purported contractual

entitlements require the guidelines to be applied prospectively only. The

caselaw ABC cites in support of this position, however, relates to substantive

changes in the law, not procedural ones. It is assumed that defendants appear

when released on bail, and that ABC and all other sureties will engage in

supervisory efforts intended to guarantee a defendant's appearance in court as

required.

III.

The Directive effectuates procedural, not substantive changes. It is not

unconstitutional, is not an unlawful exercise of the Court's supervisory

authority, and does not constitute a material change to existing contracts. It

will be applied retroactively.

One final point. ABC suggests that retroactive application will create an

administrative nightmare for the judiciary. ABC's brief states:

It is difficult to calculate the exact number of

motions for exoneration, typically accompanied by an

offer of surrender, that will ensue in the event of

retroactive application. But plaintiff alone had

roughly 1046 open Superior Court bonds with nearly

$82,000,000 in potential liability for payment of

claims as of July 31, 2017, shortly before the

complaint was filed.

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In Simpson, Judge Pressler noted that hundreds of appeals had been filed

in the years immediately before the opinion,

but because the appellant saw fit to withdraw or settle

them as they were calendared, these asserted

constitutional issues were not adjudicated, and the

stream of individual "verbatim" appeals therefore

continues. All have to be individually processed and

otherwise dealt with, and the resulting undue

administrative burden on the Appellate Division has

been acute.

[365 N.J. Super. at 453.]

Now that ABC's challenge to the Directive has been addressed, we

anticipate that bail bond companies, including this plaintiff and all others, will

be able to litigate or settle their exoneration claims more efficiently based on

the clear standards set forth in the Directive.

Affirmed.

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