Opinion
No. 08CA0241.
March 5, 2009.
Appeal from the Adams County District Court, C. Vincent Phelps, Jr., J.
John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Ronald A. Podboy, P.C., Ronald A. Podboy, Denver, Colorado, for Surety-Appellant.
Rosalie Montoya, doing business as Reliable Bail Bonds (surety), appeals a district court judgment forfeiting a $20,000 bond posted for a criminal defendant later determined to have been in this country illegally. This appeal invokes a statute that took effect June 1, 2007. See § 16-3-503(1)(c), C.R.S. 2008; Ch. 397, secs. 2, 5, 2007 Colo. Sess. Laws 1771-72, 1774. We hold (1) this statute limits forfeiture to fees collected by professional bonding agents, rather than the entire posted bond, where a non-appearing defendant later is determined to have been present illegally in this country; but (2) the statute does not apply retroactively to this case because it substantively changed prior law. Accordingly, we affirm the judgment forfeiting surety's entire $20,000 bond.
I. Background
Three dates potentially are relevant to the retroactivity issue. First, on March 7, 2007, surety posted a signed "appearance bond" promising to pay $20,000 to the State of Colorado if a criminal defendant charged with felony crimes failed to appear for required court proceedings in Adams County. Second, on May 9, 2007, after defendant failed to appear for arraignment, the district court ordered the bond forfeited with notice to the surety and review set for the next month. Third, on June 11, 2007, after the new statute had taken effect and surety had not challenged forfeiture, the court entered a $20,000 judgment against surety.
Surety subsequently moved to limit bond liability to the amount of fees collected from defendant ($2000), which she deposited in the court registry. Surety provided evidence that defendant was a Mexican national who had been in this country illegally and who had been deported to Mexico prior to the arraignment at which he failed to appear.
The district court denied surety's motion and refused to stay execution on the judgment. After surety unsuccessfully sought an extraordinary writ and stay from the supreme court, she paid the $20,000 judgment and noticed a timely appeal to this court.
II. Discussion
Surety argues the bond forfeiture judgment violated section 16-3-503(1)(c). The People respond this section should not be applied retroactively to this case and, in any event, does not entitle surety to relief. These arguments involve legal issues of statutory interpretation reviewed de novo on appeal. See Alvarado v. People, 132 P.3d 1205, 1207 (Colo. 2006).
A. Overview
Several related issues arise where a party raises a retroactivity objection to applying a statute. The first is whether application would be "prospective" or "retroactive." See Ficarra v. Dep't of Regulatory Agencies, 849 P.2d 6, 11 (Colo. 1993). Second, if applying the statute would have retroactive effect, a court must determine whether the legislature intended such retroactivity. City of Colorado Springs v. Powell, 156 P.3d 461, 465 (Colo. 2007). Third, given a state constitutional bar on "retrospective" legislation, Colo. Const. art. II, § 11, answering the first two inquiries affirmatively requires determining whether applying the statute would be permissibly "retroactive" or impermissibly "retrospective." See Ficarra, 849 P.2d at 11-13 (explaining differing legal effects of "prospective," "retroactive," and "retrospective" labels).
These related issues require courts to interpret how new legislation changed the prior legal landscape. Retroactivity analysis turns in part on whether any changes were "substantive" rather than "only procedural or remedial." See, e.g., Continental Title Co. v. District Court, 645 P.2d 1310, 1315 (Colo. 1982); Saxe v. Bd. of Trustees, 179 P.3d 67, 74 (Colo.App. 2007).
B. Forfeiture of Bonds Posted for Illegal Aliens
1. Pre-June 2007 Law
Colorado law formerly required entry of an order forfeiting a compensated surety bond where a defendant failed to appear, even if the reason was the defendant's deportation or return to his native country. See generally People v. Diaz-Garcia, 159 P.3d 679 (Colo.App. 2006); People v. Escalera, 121 P.3d 306 (Colo.App. 2005).
Compensated sureties were not entitled to "mandatory exoneration" in such cases, but instead were limited to seeking "discretionary relief" from forfeiture. Diaz-Garcia, 159 P.3d at 681-83. Compensated sureties seeking discretionary relief had to "appeal to the conscience of the court" by showing that "`justice . . . require[d]'" such relief. Id. at 682 (quoting § 16-4-112(5)(h), C.R.S. 2008). Relief turned on the totality of the circumstances, and "[n]o clear rule" applied. Escalera, 121 P.3d at 308. Nonetheless, a surety with no prior reason to know of a defendant's illegal status had a compelling case for exoneration from bond forfeiture if the defendant subsequently was deported involuntarily. Id. at 308-09 (finding abuse of discretion for district court to deny relief in such a case); but cf. Diaz-Garcia, 159 P.3d at 683 (surety not entitled to discretionary relief where defendant voluntarily fled to his native Mexico despite claims Mexico would refuse to extradite him back); People v. Bustamante-Payan, 856 P.2d 42, 45 (Colo.App. 1993) (sureties not entitled to relief even though they located defendant in Mexico and district attorney refused to extradite defendant).
To seek discretionary relief from forfeiture, compensated sureties must request a show-cause hearing within fifteen days of receiving notice of forfeiture. § 16-4-112(5)(b)(III), C.R.S. 2008. Otherwise, the court is directed to enter "judgment for the state against the compensated surety" thirty days after the entry of forfeiture. Id.
Here, for reasons not apparent in the appellate record, surety did not timely seek discretionary relief pursuant to section 16-4-112. Surety received notice of the forfeiture in May 2007; a month later, after surety had failed to request a show-cause hearing, the court entered judgment for the state and against surety in the entire amount of the posted $20,000 bond. Surety does not argue she was entitled to discretionary relief. Instead, her appeal relies entirely on section 16-3-503(1)(c), which she contends established a legal entitlement to relief.
2. The June 2007 Enactment of Section 16-3-503
The statute invoked by surety addresses compensated sureties where "it is determined that a defendant is illegally present in the country after a bail bond is posted on a felony or class 1 or class 2 misdemeanor." § 16-3-503(1)(c). It provides in such cases "the jail or court shall return all documents concerning the defendant that are signed by the bail bonding agent to the agent, and the agent shall return the fees collected pursuant to section 12-7-108(7), C.R.S. [2008], to the court for forfeiture. . . ." § 16-3-503(1)(c). The latter referenced section authorizes bail bonding agents to collect fees of no more than the greater of $50 or fifteen percent of the posted bail. § 12-7-108(7).
The People contend that "by its plain terms" new section 16-3-503(1)(c) would not entitle surety to relief even if it applied. Were this contention correct, it would obviate any need for retroactivity analysis because there would be no new rule potentially benefiting surety. We conclude it is not correct.
The plain terms of the statute require a quid pro quo: the court must return to the surety agent "all documents concerning the defendant that are signed by the bail bonding agent," and the agent must return to the court all fees collected for the posted bond. § 16-3-503(1)(c). One of the court "documents concerning the defendant that [is] signed by the bail bonding agent" — in some cases, the only such document — is the appearance bond itself. If that bond is returned to the surety, no document remains in the court record to which forfeiture could attach.
Accordingly, where subsection (1)(c) applies, it limits compensated sureties' liability to the fees collected for posting the bond rather than the entire amount of the bond. This conclusion is fortified by the statute as a whole and by its legislative history.
The statute treats compensated sureties differently, and more favorably, than nonprofessionals posting bonds. Only "a defendant or person other than a professional bonding agent shall execute a waiver that states that the person understands that the bond or fees shall be forfeited if the defendant is removed from the country." § 16-3-503(1)(a), C.R.S. 2008. Subsection (1)(a) not only requires no such waiver from compensated sureties but also protects them by requiring law enforcement agencies having "probable cause to find that the defendant is likely illegally present in the United States" to notify them of this fact before the bond is posted. Id. Subsection (1)(b), which applies only to "a defendant or person other than a professional bonding agent," then singles out nonprofessionals for forfeiture of the entire bond if the defendant is removed from the country. § 16-3-503(1)(b), C.R.S. 2008 (applying only to "a defendant or person other than a professional bonding agent who posts bond").
The legislative history confirms the General Assembly's intent to remove compensated sureties from broad forfeiture provisions covering nonprofessionals posting bonds. Section 16-3-503 was part of a bill that originated as House Bill 07-1040. As first introduced, section 503 was just a single-sentence paragraph providing for broad forfeiture of bonds posted by any "bonding agent or other person" where an illegally-present defendant was removed from the country. The bill went through various iterations as it journeyed through three different House committees.
Section 503 of House Bill 07-1040 ultimately expanded into subparagraphs (1)(a), (b), and (c), in much the same structure ultimately enacted. Initially, however, all three subparagraphs would have applied to professional bonding agents.
Concerns were expressed in the House Appropriations Committee about the potential unfairness to professional bonding agents who might not know a defendant's illegal status when they post bond. Responding to these concerns, Rep. Stephens, the House bill sponsor, expressed the belief that the notice requirements in subsection (1)(a) should protect sureties. Extensive debates ensued over whether those notice requirements provided sufficient protection. See generally Hearings on H.B. 1040 before the H. Comm. on Appropriations, 66th Gen. Assemb., 1st Sess. (Apr. 17, 20, and 27, 2007).
The bill ultimately enacted into law expressly excludes professional bonding agents from the broad forfeiture provisions contained in the second sentence of subsection (1)(a) and all of subsection (1)(b). This legislative history therefore confirms our reading of subsection (1)(c) as intended to limit professional bonding agents' liability to the actual fees collected.
C. The Issue of Retroactivity
Because section 16-3-503 creates new legal rules for professional surety bonds, we now must address retroactivity. We hold the new statutory provisions do not apply to this case.
1. The Retroactive Effect of the New Rules
We first must decide whether section 16-3-503 would be "prospective" or "retroactive" as applied to this case. The test is this: "[l]egislation is applied prospectively when it operates on transactions that occur after its effective date, and retroactively when it operates on transactions that have already occurred or rights and obligations that existed before its effective date." Ficarra, 849 P.2d at 11. To apply this test, a court must identify "the relevant activity that the [new] rule regulates." Landgraf v. USI Film Products, 511 U.S. 244, 291, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (Scalia, J., joined by Kennedy and Thomas, JJ., concurring in judgments), quoted in Republic of Austria v. Altmann, 541 U.S. 677, 697 n. 17, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004).
The State contends the key date is March 7, 2007, when the bond was posted. Other possibilities are May 9, 2007, when the forfeiture order entered, or June 11, 2007, when judgment entered. We need only decide if the relevant date was before June 1, 2007.
The relevant activity in this case occurred no later than May 9, 2007, when defendant failed to appear for arraignment. Under then-existing law, the court was required to and did order forfeiture, with surety's only remedy being to seek discretionary relief under section 16-4-112(5). Diaz-Garcia, 159 P.3d at 681-83. While judgment of forfeiture did not actually enter until June 11, 2007, that date cannot be controlling for retroactivity purposes. The judgment was a ministerial act required once surety failed to request a show-cause hearing within fifteen days of receiving notice of the May 9 order of forfeiture. See § 16-4-112(5)(b)(III) ("Upon expiration of thirty days after the entry of forfeiture, the court shall enter judgment for the state against the compensated surety if the compensated surety did not request within fifteen days after receipt of notice of such forfeiture a hearing to show cause.").
Were we to apply subsection (1)(c) to this case, it would alter substantive consequences that had attached by May 9, 2007. A "bail bond agreement is a contract" affecting three parties: the bondsman as the "surety"; the defendant as the "principal"; and the court or state as the "creditor." People v. Tyler, 797 P.2d 22, 24-25 (Colo. 1990).
Applying subsection (1)(c) would change the consequences for two contracting parties — the surety and the state — after defendant had failed to appear for a required court Dist.Ct.App. 2004); proceeding. Surety here seeks to benefit substantively from these changes by forfeiting only its $2,000 fee and not the $20,000 posted bond that would be subject to forfeiture under the law as it existed on May 9, 2007. Depending on the particulars of a given case, however, the changes might work to a surety's disadvantage. Under pre-June 1, 2007 law, sureties could seek discretionary relief that might allow them to avoid any forfeiture while presumably still retaining all fees paid by a defendant. In contrast, where subsection (1)(c) applies, it requires forfeiture but limits the amount of forfeiture to fees the surety collected from the defendant.
Subsection (1)(c) does not simply alter procedures for effectuating bond forfeitures; rather, it substantively changes the amount subject to forfeiture under a bond contract. Accordingly, unlike a purely procedural or remedial rule that might apply to pending proceedings without triggering any presumption against retroactivity, this new subsection does not apply here unless the legislature affirmatively intended to accord it retroactive effect.
2. The Lack of Legislative Intent for Retroactivity
We "presume a statute operates prospectively" only. Powell, 156 P.3d at 464. This presumption is made "in accordance with statutory and common law guidance mandating that unless intent to the contrary is shown, legislation shall apply only to those transactions occurring after it takes effect." Id. (citing § 2-4-202, C.R.S. 2008; In re Estate of DeWitt, 54 P.3d 849, 854 (Colo. 2002)).
Surety has not identified, nor has our independent review of the statutory text and legislative history revealed, any legislative intent that could "overcome the presumption of prospectivity." Powell, 156 P.3d at 468. We accordingly decline to apply section 16-3-503(1)(c) retroactively. Our conclusion is in accord with other decisions denying retroactive effect to statutory changes that would benefit sureties but affect states' "substantive rights . . . in forfeitable bail bonds." Allegheny Cas. Co. v. Roche Surety, Inc., 885 So.2d 1016, 1018-19 (Fla.Dist.Ct.App. 2004); Marshall v. State, 797 S.W.2d 698, 702 (Tex.App. 1990).
III. Conclusion
Surety is not entitled to relief because section 16-3-503(1)(c) does not apply retroactively. Accordingly, the judgment is affirmed.
Judge CARPARELLI concurs.
Judge TAUBMAN concurs in part and dissents in part.