Opinion
November 18, 2008
April 22, 2009
Attorney General J.B. Van Hollen Wisconsin Department of Justice 17 W. Main Street Madison, Wisconsin 53703
Mr. Brian W. Blanchard District Attorney Dane County 215 South Hamilton Street, #3000 Madison, WI 53703-3297
RE: Request For Opinion Regarding Sheriff's Office "Revolving Bail Fund"
Dear Attorney General Van Hollen,
I respectfully request an opinion of your office on the following question: Is a "bail fund" operated by a Wisconsin sheriff, as described below, contrary to the terms of §§ 969.01, 969.02, 969.12, Wis. Stats., related provisions of Chapter 969, and the 2008 Uniform Misdemeanor Bail Schedule?
The occasion for my request is a program recently adopted by Dane County, the Revolving Bail Fund. Dane County officials use public money to post cash satisfying bail bonds for selected jail inmates held on misdemeanor charges without judicial involvement. I am not aware of any local rule of Dane County's judges or other judicial action creating or approving of this program.
I have two concerns. First, the sheriff cannot act as a surety in this context pursuant to § 969.12, Wis. Stats. Second, under our system of laws judicial officers, not sheriffs in the role of jailers, determine bail amounts.
As you are aware, pretrial release in Wisconsin is primarily governed by Chapter 969 of the Wisconsin Statutes and the 2008 State of Wisconsin Uniform Misdemeanor Bail Schedule, developed by the Judicial Conference and adopted by the Wisconsin Supreme Court. This schedule sets bail amounts for misdemeanor offenses with the goal of insuring future court appearances and requiring persons in custody to take a stake in compliance with court orders. Wisconsin law establishes that pretrial release for someone who has been assigned a bail amount under the Bail Schedule is allowed only upon payment of the bail by the defendant or his/her surety. The required payment is refundable, upon appearance in court.
Arresting police officers have very broad discretion about who they take to jail. Sheriffs acting as jailers have no authority to set bail amounts or to ignore bail amounts fixed by courts.
This approach recognizes that a trained law enforcement officer, who has the best information about the nature of the reported offense and the community ties of the offender, is in the best position to determine which alleged offenders can be ticketed and which should be taken to jail. The former group consists of persons who appear to pose no ongoing threat to public order and who are likely to appear in court without bail; the latter group consists of persons who may pose an ongoing threat to public order and whose ties to the community or history suggest that they cannot be relied on to appear in court without having posted bail.
The Bail Schedule Preamble establishes that after police determine that confinement in jail is necessary, a jail inmate "shall be released upon compliance with the state deposit or misdemeanor bail schedule unless bail is otherwise set by the court." (emphasis added) A number of Class A and B misdemeanor offenses are set at $250 or less, including Disorderly Conduct, a common charge.
Under the Bail Schedule and as otherwise authorized by law, sheriffs perform the ministerial act of collecting and holding in trust for the Clerk of Court money posted for bail, and releasing those who post in accordance with the amount set in the Bail Schedule or as otherwise determined by a court. Sheriffs have no independent authority to determine bail amounts or to act as a surety.
Section 969.01(1), Wis. Stats., matches the terms of the Bail Schedule. Under § 969.01(1), Wis. Stats., the determination of bail amounts is made by "the judge," not the sheriff. The Revolving Bail Fund effectively creates what amounts to a sheriff signature bond not provided for in the law, and seeming at odds with multiple provisions in Chapter 969. I believe this also implicates Chapter 950.
Please find attached:
1. A memo of Dane County Sheriff's Office (DCSO) Capt. Jeff Teuscher, dated August 15, 2008, describing aspects of the fund, by which bail is paid in whole or in part through County funds.
2. A "Promissory Note" establishing "Dane County" as the lender and an inmate as the borrower for purposes of a "loan" by the county to DCSO "on behalf of" the inmate, purporting to qualify as the basis for satisfaction of bail and allowing the "borrower" to bail out of jail after signing a bail bond.
3. An "Assignment of Bail" associated with the above "Promissory Note."
Please note that while the "Promissory Note" references "court appearances" and "court orders related to the case," at the time the monetary pledge is made by the County, there is no involvement by any judge or court commissioner in this process, nor involvement of legal counsel for the state or for the defendant. The program is explicitly intended to bypass court proceedings as a response to jail overcrowding.
The question is whether an exclusive authority vested in judges and court commissioners is being exercised under the new program by the Dane County Sheriff. Only judicial officers, including court commissioners, may exercise judicial functions. See § 757.69(1)(b), Wis. Stats., (court commissioners powers enumerated, including "set bail"). In addition, a "sheriff signature bond" program potentially deprives victims and public agencies of funds that would otherwise be transferred from posted and forfeited bail funds to victims ("recompense") or to public agencies. See § 969.13(5)(b), Wis. Stats.
Under this new program Dane County, not a natural person, is acting as a surety to procure the release the inmate-borrower (the "principal," in the terms of Chapter 969), which appears to conflict with § 969.12(2), Wis. Stats. The inmate-borrower relies on the County to credit a DCSO bail account, which will be depleted only in the event that the inmate-borrower fails to comply with the terms of his or her bail bond. The County is to be indemnified by the inmate-borrower if this payment is forced on the County by the inmate-borrower's failure to fulfill the conditions of the bail bond. The County is held to the default of the inmate-borrower and insures the obligation of the inmate-borrower, using money that does not belong to a natural person.
* * *
I respectfully request that your office analyze this issue for the benefit of county officials throughout the state and the communities they serve. I respectfully invite anyone copied on this letter to forward to your office any facts or law that any of them think might assist in the analysis.
Thank you for your attention to this request.
Sincerely,
Brian W. Blanchard
cc: Dane County Sheriff David J. Mahoney
Marcia MacKenzie, Dane County Corporation Counsel
Dane County Executive Kathleen Falk
Dane County Board Supervisor Paul Rusk (Chair, Public Protection Judiciary Committee)
Dane County Chief Judge William C. Foust
Dane County Judge Patrick Fiedler, Presiding Judge, Criminal Division
Dane County Chief Court Commissioner Daniel Floeter
Assistant State Public Defender Catherine Dorl
Dear Mr. Blanchard:
In your letter dated November 18, 2008, you indicate that Dane County has recently established a revolving bail fund. You state that there has been no judicial action by any Dane County Circuit Court Judge or Judges directing or approving the use of such a fund.
BACKGROUND
Your letter indicates that the revolving bail fund is funded by the county. The fund is a line item in the budget of the Dane County Sheriff. Monies are lent by the Dane County Sheriff's Office from the fund to persons who have been booked into the Dane County Jail. Funds are lent to persons who lack the financial resources with which to post bail in connection with certain offenses for which the Uniform Bail Schedule sets bail at $250 or less. Your letter suggests that the vast majority of these offenses are misdemeanors.
In order to be eligible to receive monies from the revolving bail fund, the person cannot be subject to any outside holds, warrants, or commitments; cannot have been arrested for domestic abuse of any kind; cannot have been booked into the jail for any municipal ordinance violation; cannot have failed to appear in court or have been subject to a bench warrant during the preceding five years; cannot have tested positive for any amount of alcohol; and cannot be incapacitated by any drug. The person must also possess valid identification, such as a current driver's license. If the person meets these criteria, he or she must sign a promissory note payable to the county and must also execute an assignment of bail directing the clerk of court to return the amount loaned from the revolving bail fund to the county once the conditions of the indigent person's bail are satisfied. At the time the funds are loaned, there has been no court appearance, no appearance before a judge or court commissioner, and no involvement by the prosecutor or by defense counsel. I have been unable to locate a Dane County Ordinance establishing a revolving bail fund. See http://countyofdane.com/unified/information/ordinances.aspx;http://danedoc.countyofdane.com/webdocs/pdf/ordmances/ord0y.pdf (last visited 3/31/2009).
QUESTION PRESENTED AND BRIEF ANSWER
You ask, in effect, whether a county or a county sheriff possesses statutory authority to use county funds to establish a revolving bail fund for the purpose of allowing persons to post bail for certain kinds of offenses for which they are booked into the county jail.
In my opinion, the answer is no.
PRINCIPAL STATUTORY PROVISIONS AND JUDICIAL ORDERS INVOLVED
I. STATUTORY AUTHORITY OF THE SHERIFF.
Wisconsin Stat. § 59.27 provides in part:
Sheriff; duties. The sheriff of a county shall do all of the following:
(1) Take the charge and custody of the jail maintained by the county and the persons in the jail, and keep the persons in the jail personally or by a deputy or jailer.
(2) Keep a true and exact register of all prisoners committed to any jail under the sheriffs charge, in a book for that purpose, which shall contain the names of all persons who are committed to any such jail, their residence, the time when committed and cause of commitment, and the authority by which they were committed; and if for a criminal offense, a description of the person; and when any prisoner is liberated, state the time when and the authority by which the prisoner was liberated; and if any person escapes, state the particulars of the time and manner of such escape.
II. UNIFORM BAIL SCHEDULE.
Wisconsin Stat. § 969.065 provides:
Judicial conference; bail alternatives. The judicial conference shall develop guidelines for cash bail for persons accused of misdemeanors which the supreme court shall adopt by rule. The guidelines shall relate primarily to individuals. The guidelines may be revised from time to time under this section.
The Uniform Misdemeanor Bail Schedule, adopted by order of the Wisconsin Supreme Court on October 29, 2007, provides in part:
The current Uniform Misdemeanor Bail Schedule addresses the individual circumstances of the person arrested. See Demmith v. Wisconsin Judicial Conference, 166 Wis. 2d 649, 480 N.W.2d 502 (1992).
Preamble for Forfeiture and Misdemeanor Bail Schedules
I. All persons arrested for a violation of a state or municipal ordinance shall be released from custody without a cash bond if they:
• Have a valid Wisconsin driver's license or can show sufficient evidence of ties to the community; or
• The arresting officer is otherwise satisfied that the accused will make future court appearances.
II. All persons arrested for a misdemeanor, including a misdemeanor traffic offense, shall be released from custody without a cash bond unless any of the following exist:
• The accused does not have proper identification.
• The accused appears to represent a danger of harm to himself or herself, another person or property.
• The accused cannot show sufficient evidence of ties to the community.
• The accused has previously failed to appear in court or failed to respond to a citation.
• Arrest or further detention is necessary to carry out legitimate investigative action in accordance with law enforcement agency policies.
III. All persons not released pursuant to I and II for a forfeiture, misdemeanor or misdemeanor traffic offense shall be released upon compliance with the state deposit or misdemeanor bail schedule unless bail is otherwise set by the court.
IV. These guidelines do not supersede specific statutorily mandated detention.
ANALYSIS
"A county or a county officer has only such power as is conferred by statute, either expressly or by clear implication." OAG 1-03 (October 2, 2003), at 2. See St. ex rel. Teunas v. Kenosha County, 142 Wis. 2d 498, 504, 418 N.W.2d 833 (1988). See also County of Milwaukee v. Williams, 2007 WI 69, ¶ 24, 301 Wis. 2d 134, 732 N.W.2d 770.
The substantive powers of counties are enumerated primarily in Wis. Stat. § 59.01 and Wis. Stat. ch. 59, subch. V. I have located no statute that expressly or impliedly authorizes a county to loan county funds to persons booked into the county jail.
The sheriff does have "charge and custody of the jail[.]" Wis. Stat. § 59.27(1). In exercising that authority, the sheriff must keep a record of "when any prisoner is liberated" and "state the time when and the authority by which the prisoner was liberated[.]" Wis. Stat. § 59.27(2). Nothing in this language or in any other provision of Wis. Stat. § 59.27 expressly authorizes the sheriff to loan county funds to persons booked into the county jail.
The exercise of statutory powers cannot be freely or readily implied. Compare Madison Metropolitan Sch. Dist. v. DPI, 199 Wis. 2d 1, 13, 543 N.W.2d 843 (Ct.App. 1995). Statutes ordinarily are strictly construed to preclude the exercise of power that is not expressly granted. See Browne v. Milwaukee Bd. of School Directors, 83 Wis. 2d 316, 333, 265 N.W.2d 559 (1978). Any reasonable doubt concerning the existence of an implied statutory power should be resolved against its existence. Madison Metropolitan, 199 Wis. 2d at 13. See, e.g. 77 Op. Att'y Gen. 94, 95 (1988), concluding that the sheriff could not contract with a private firm to maintain the care and custody of prisoners in the county jail because "the power or discretion to so contract is not presently reposed in him by statute, expressly or by implication[.]"
Other statutory provisions negate the existence of any implied power on the part of the sheriff under Wis. Stat. § 59.27(1) and (2) to establish a revolving bail fund. "[T]he legislature and judiciary exercis[e] shared power over bail." Demmith, 166 Wis.2d at 663. Although the Legislature has authorized the sheriff to accept bail under Wis. Stat. § 969.07, in doing so the sheriff performs a purely "ministerial function[.]" 63 Op. Att'y Gen. 241, 243 (1974). See also 8A Am. Jur. 2d Bail § 9 (2009); 8 C.J.S. Bail § 72 (2008). The judiciary has acted pursuant to Wis. Stat. § 969.065, which provides: "The judicial conference shall develop guidelines for cash bail for persons accused of misdemeanors which the supreme court shall adopt by rule." The judicial conference and the supreme court have not authorized the sheriff to exercise discretion in determining which persons booked into the county jail should be able to post bail. Cf. 63 Op. Att'y Gen. at 244-45. There is no language in Wis. Stat. § 59.27(1) and (2) impliedly granting the sheriff the power or authority to deviate from the provisions of Wis. Stat. § 969.07 or Wis. Stat. § 969.065. I find no statutory authority for a county or a sheriff to establish a revolving bail fund with public funds or to operate such a fund in the manner you describe.
Your concern that the county or the sheriff may be acting as a surety, contrary to Wis. Stat. § 969.12(2), would be valid if there are situations in which the county posts an appearance bond with the court. Wisconsin Stat. § 969.12(2) requires that "[a] surety under this chapter shall be a natural person[.]" Where monies are lent directly to the person who then posts cash bail, neither the county nor the sheriff acts as a surety. See Wis. Stat. § 969.02(2), which refers to a "deposit of cash in lieu of sureties[.]" See also Wis. Stat. § 969.13(3) and (4).
CONCLUSION
I therefore conclude that neither a county nor a county sheriff possesses statutory authority to use county funds to establish a revolving bail fund for the purpose of allowing persons to post bail for certain kinds of offenses for which they are booked into the county jail.
Sincerely,
J.B. Van Hollen
Attorney General
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