Bondsmen Supreme Court case

7/28/2019 Bondsmen Supreme Court case

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IN THE SUPREM E COURT OF OHIO

State of Ohio ex rel.Woodrow L. FoxWoodrow L. Fox, Sr., LLC289 South Third StreetColumbus, Ohio 43215,and,Woody Fox Bail Bonds, LLC289 South Third StreetColumbus, Ohio 43215,

Relators,V .

Gary Wa ltersClerk of Court for the Cou rt of Comm onPleas, Licking C ounty, Ohio1 Courthouse SquareNewark, Ohio 43055,and,Clerk of Court for the Cou rt of Comm onPleas, Licking C ounty, Ohio1 Courthouse SquareNewark, Ohio 43055,and,Judge David BranstoolCourt of Com mon Pleas,Licking C ounty, Ohio1 Courthouse SquareNewark, Ohio 43055,and,Judge Thomas MarcelainCourt of Common P leas,Licking C ounty, Ohio1 Courthouse Square

Case No.

. . I ^ . : L

13 - 03 6 4

Original Action in Mandamus

G 0 L E DM R R 0 4 2 0 1 3

C L E R K O F C O U R TS U P R E M E C O U R T O F O H I O


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Newark, Ohio 43055,and,Court of Comm on Pleas,Licking C ounty, Ohio1 Courthouse SquareNewa rk, Ohio 43055,

Respondents.

COMPLAINT FOR MANDAMUS

Kendra L. Carpenter (0074219)Sprankle Carpenter, LLCP.O. Box 142931 Columbus, Ohio 43214Voice and Fax: [email protected] for R elators,Woodrow L. Fox andWoodrow L. Fox, Sr., LLC

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PARTIES1. Relator Woodrow L. Fox is licensed by the Ohio Department of Insurance

to issue surety bail bonds, and is the owner of Relator Woodrow L. Fox, Sr., LLC, whichmaintains its principle place of business in Franklin County, Ohio, (collectively, RelatorsFox).

2. Respondent Gary Walters is an elected official who serves as the Clerk ofCourt for the Court of Common Pleas, Licking County, Ohio and regularly processesand accepts payments of bail ordered by Respondents Branstool, Marcelain and theCourt of Common Pleas, Licking County, Ohio Mr. Walters is a party to this action

pursuant to his official capacity.3. Respondent Clerk of Court for the Court of Common Pleas, Licking

County, Ohio is exercises the powers conferred by and performs the duties enjoinedupon it by statute and by the common law; and in the performance of its duties it followsthe direction of Respondents Branstool, Marcelain and the Court of Common Pleas,Licking County, Ohio. See O.R.C. 2303.26.

4. Respondent Judge David Branstool is an elected official who serves asjudge of the Licking County, Ohio Court of Common Pleas and regularly sets bailpursuant to Rule 46 of the Ohio Rules of Criminal Procedure. Judge Branstool is aparty to this action pu rsuan t to his official capacity.

5. Respondent Judge Thomas Marcelain is an elected official who serves asjudge of the Licking Cou ^ ^ty, Ohio Court of Co!^?!-on Pleas and regularly sets bai lpursuant to Rule 46 of the Ohio Rules of Criminal Procedure. Judge Marcelain is aparty to this action pursuant to his official capacity.

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6. Respondent the Court of Common Pleas, Licking County, Ohio is a trialcourt of general jurisdiction created by Article IV, Section 1 of the Ohio Constitution andregularly sets bail pursuant to Rule 46 of the Ohio Rules of C riminal Procedure.

JURISDICTION7. This is an original action for a writ of man dam us, as well as anc i llary relief ,

to compel Respondent to comply with Article I, 9 of the Ohio Constitution.8. The Court has jurisdiction of this action under Article IV, 2(B)(1)(b), (d)

of the Ohio Constitution, and O.R.C. 2731.01, et seq.9. Relators have standing to bring this action pursuant to State ex rel.

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967), and State ex rel. Jones, et al. v.

Hendon, 66 Ohio St.3d 115 (1993).

STATEMENT OF THE FACTS10. This case arises out of Respondents' refusal to accept a surety bond from

Relators in violation of Article I, Section 9 of the Ohio Constitution, which in pertinentpart states:

All persons shall be bailable by sufficient sureties, except for aperson who is charged with a capital offense where the proof isevident or the presumption great, and except for a person who ischarged with a felony where the proof is evident or the presumptiongreat and where the person poses a substantial risk of seriousphysical harm to any person or to the commu nity.

11. In Ohio, when a court has issued a bail order, the refusal to accept asurety bond constitutes unlawful excessive bail and an unlawful detainment in violation

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of Article I, Section 9 of the Ohio Constitution. See Smith v. Leis, 106 Ohio St. 3d 309

(2005).12. Where a judge imposes a monetary bond as a condition of release under

Rule 46 of the Ohio Rules of Criminal Procedure, and the accused exercises his or herconstitutional right to enlist a surety to post bail on his or her behalf, the clerk of courtsmust accept a surety bond to secure the defendant's release, provided the suretiesthereon are otherwise sufficient and solvent. See Id.

13. Rule 46 of the Ohio Rules of Criminal Procedure imparts discretionaryauthority to a court as to the type of bail it can set. However, if a monetary bond is set,every defendant maintains an inalienable right under the Ohio Constitution to post asurety bond.

14. Consistent with the Ohio Constitution, under Rule 46 of the Ohio Rules ofCriminal Procedure, the Licking County, Ohio Court of Common Pleas regularly setsmonetary bail as a condition of release from jail pursuant to Rule 46(A)(2) of the OhioRules of Criminal Procedure, which requires a defendant to pay in cash (as opposed tocollateral) ten percent of the set bail amount. This is commonly referred to as a "10%

Bond."15. Despite the surety bond provision in the Ohio Constitution, Respondents

have continuously refused to accept a surety bond from Realtors on behalf of certain

defendants who have been issued a 10% Bond u nder Rule 46(A)(2)r,_rLr., C..,ef on+othe foilowing Licking Count_v, Ohio cases:16. To wit, R^âtu^^ Foxêêr.,.,.,-

2012 CR 00358, 2012 CR 00396, 2012 CR 00106, 2012 CR 00404, 2011 CR 00073,2012 CR 00439. In these cas es, the Court of Common Pleas set a 10% bond, and

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Respondent Walters refused to accept a surety bond from Relators. (Exhibit A.)

Instead, Respondent Walters required the 10% Bond be paid in cash only. (Id.)

17. On or about August 28, 2012, Relators Fox, through co unsel, advised theLicking County Prosecutor, Kenneth W. Oswalt, that when a 10% Bond is set,

Respond ents refused to accept a surety bond. ( Exhibit B.) In respo nse , the Prose cutorerroneously rel ied up on State ex rel. Williams v. Fankhauser, 11t" Dist. No. 2006-P-0006, 2006 Ohio 1170 and Smith v. Leis, 165 Ohio Ap p.3d 581, 2006-Ohio-450 (1StDist .) and opined that Respo nden t was not obl igated to accep t a surety bond. (Id.)Specif ical ly , the Prosec utor advised Relators Fox that , " the Judge who sets [a 10%Bon d] will expec t the Clerk of Cou rts to accept only the type(s) of bond(s) spec ificallyapproved by the assigned Judge." The Prosecutor purportedly failed to give anyconsideration to Article I, Section 9 of the Ohio Constitution.

18. Since 2010, it has been Relators standard practice to refuse a surety bond

when a 10% Bond is set. (Exhibit C.)19. It is the duty of Respondents Clerk of Courts and Walters to receive and to

issue receipt for the bail posted by the accused in a criminal case. See O.R.C.

2937.22.20. Respondents Court of Common Pleas, Branstool, and/or Marcelain are

improperly directing Respondents Clerk of Courts and Walters to refuse the issuance of

a surety bond when a 10%Bond has been set, and, as a result, the rights afforded to

Ohio citizens under Article i, Section 9 of the Ohio Constiti,tion are being violated.

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COUNT I - MANDAMUS21. Relators have no legal authority to prohibit the posting of a surety bond in

cases where a m onetary bond is set.22. Respondents' actions have resulted in a mandatory "cash only" bond that

is prohibited by Article 1, Section 9 of the Ohio Constitution.23. Respondents' actions constitute an unlawful attempt under Article 16 of

the Ohio Constitution to amend Article 1, Section 9 of the Ohio Constitution.24. Respondents' actions discriminate against those defendants whose

circumstances do not permit them to secure their release from jail by any other meansthan by posting a surety bond.

25. Relators have a sufficient beneficial interest in having the Court issue awrit of mandamus ordering the Respondents to accept a surety bond when any courtorders any monetary bail, as Respondents' actions have effectively deprived Relators oftheir livelihood and, if continued, will result in further irreparable harm to Relators.

26. Relators have no other adequate remedy in the ordinary course of law.

27. As a result of Respo nden ts' unlaw ful act ions, Relators have sustainedmo netary damages and are entitled to recovery pursuant to O.R.C. 2731.11.

WHEREFORE, Relators respectfully demand that the Court issue a peremptorywrit of mandamus directing Respondents to comply with Article I, Section 9 of the OhioConstitution by accepting a surety bond :.^hen the Licking County, Ohio Court ofCommon Pleas issues a monetary bond. In the alternative, Relators request that theCourt issue an aiternative writ requiring Respondents to show cause why the requested

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peremptory writ should not be issued, or that pursuant to S.Ct.Prac.R. 12.10, refer thismatter to a master commissioner for an oral argument. Further, Relators request thatthe Court order Respondents to pay the costs of this action pursuant to O.R.C. 2731.12, Relators' damages pursuant to O.R.C. 2731.11, and all other such relief towhich Relators may be entitled, including attorney fees.

Respectfully submitted,S Carpenter, LL

19)ndra L. Carpenter (00742P.O. Box 142931 Columbus, Ohio 43214Voice + Fax: [email protected] for RelatorsWoodrow L. Fox andWoodrow L. Fox, Sr., LLC

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AFFIDAVIT OF NEVIN P. KEIMSTATE OF OHIOCOUNTY OF FRANKLIN

Nevin P. Ke im, being first duly cautioned and sworn, states as follows:1. I make this Affidavit pursuant to my personal knowledge.2. I am licensed by the Ohio Department of Insurance to issue surety bail

bonds, and I work with Woodrow L. Fox, Sr., LLC.3. On July 17, 2012, the Licking County Court of Common Pleas in case

num ber 2012 CR 00358 , styled State of Ohio v. Ralph Laywer, issued a "$10,000appearance" bond.

4. On or about July 17, 2012, Kathy Spires contacted me to post a suretybond to secure the release of Mr. Lawyer from the Licking C ounty, Ohio jail.Immediately thereafter, I contacted the Licking County Clerk of Courts to post a suretybond on behalf of Mr. Lawyer. The deputy clerk to whom I spoke told me that the Clerkwould not accept a surety bond.

5. In addition to the Lawyer case, the Licking County Clerk of Courts hasdenied me the opportunity to post a surety bond in numerous cases before the LickingCounty Court of Comm on Pleas where a 10% appearanc e bond has been set,including, but not lim ited to: State of Ohio v. Abigain S. Hunt, cas e num ber 2012 CR

00396; State of Ohio v. Sara L. Caw , case nu mber 2012 C R 00106; State of Ohio v.Jenny L. Markle, case num ber 2012 CR 00404; State of Ohio v. Melissa C. C anterburry,case num ber 2011 CR 00093; and State of Ohio v. Brittani B. Hil l, case n um ber 2012CR 00439.

EXHIBITA

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6. My impression is that the standard practice of the Licking County Clerk ofCourts to require a paym ent of cash only w hen the Licking County Court of CommonPleas issues a 10% appearance bond.

FURTHER AFFIANT SAYETH NAUGHT.

Nevin P. Kei

dSworn to before me and su bscribed in my presen ce this a day of March,2013. f

Noiuic,StathoK A R E N H E L D P H I P PSA t t o r n e y a t L a wN o t a r y P u b l ic , S t a t e o f O h i o^ Cammission Has No Expirat ionSec t ion 147.03 R.C.

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. I a tn t erci l?t o f your te t t er da tvd August 29 , 2012 , r -^:gnding }our c o ^ ^ a m s w l tl lr t i s laac t to d le U 61dr ig Goctn ty Cvmm aa 1'Ie tas C'otr t sdt i r ,g " 1 4 / a b oi W s " a a x d ^ ^ ^ a f tA o r ,t h e C l a r k o f C o u r t ' s O f f l oa de c l in ing t o so cap l a s i t r e Ly N i i )d in t ho i r p l ace . I n r e sp=bato your IetW , I ccaztact ,-, t l the Sudgee o f th-^ Go uzt- Pleaâ 1^ti advised tha t the Co urt ir^' natincl .i .net i to ch agge i ts Ga rrent 15ractics, Tktus, whcsn a. Tucigê srt .a a 1 0 % b q x ) d (m4 dc i e sr io t a l so spac i f ica l ly auths)r izc anvthe t fortty . o f Inr id t . s a s t dtrert ia t ivc) the Judse wh o so tst h a t b o n d w i ll e x p e - t th e C l e r k o f G o u r U t o a c c q t o n l y t h e t y p e (s ) o f b a n d ( $) s p e c if i ca l l yaplxtctved by t1ao apslpcd Judgr).

I w o u l d n o t e t h a t t h e p x a . c tt c e th e C o u r t c u r r o n t l y f o l lo w s i n W n ' % 1 0 % b o n d sand t lz^âftm no t pe^tt fn& t- la , i s to be coveee^ by i t SuTOy bond. I l s s bumrc s IW if 'ccV11Sya p p r o v e d b y a t ] e a a t a i i e C o u s t o f A p p o a t s . S e a , S t a t e e x r ^ e t v . F ar x f e h a r a e r t 2006- Otx io -1 1 7 0 ( 1 1 Distj. Essanada11y, t iàt , Par .?*aweY cou , t conolud-bd that B inâ ^v I^^/^ batid isaut l? .or izeci by a d i i f exca i: iwf tx o f G k i m m : R . 46, a court i s auth oi iztct to is i s i sx u pon a 10%bon d and tha t such in s i s f 6nca Ao e s i r o t c tT e c t ivo l y am. ount t o a"e ga1 l on ly" bo i id o f t hotype that t h e O h i t y S u p m m o C o t i r t h a s f o u r t d o b j e c ti a n a t ) lo i n Y t a t .O a , r -4 1 . t t k c r v ^T i ' o u t x n g n , 5 0 O h i o S i .3 c 1 2 7 0 ( 1990). AISI1uugI^ pa9.Xa l)s nat stattEt as 6^4ly ag t t , was lu

, ^ ^ n k h a u , T e r , i t wQ tc1 appear that ata.o' t13or cow ,' t W ep-a wit l i s ix-h a rradi i lg of Grim,R. 46.g o * . S 'i t if t f t 1 ' , 1 4 1 , ; 1 6 5 O h i o A p p . 3 d 5 8 1 t 2 0 0 6 - o b l o 4 , 5 0 (1t Disf,), IlI 20^nj (c7Yim o n s i d a r a t s o t i o f p r i o r o g i r z io n i n 2 4 0 5 -0 3 u . o -6 0 1 0 . ) C o n v e r s e l y , I ca t t f in d n o r a s e stha t adf^^^ss th is spGcific issue th8s favor y4uT CI.ieIt's gosit ien. -


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AFFIDAVIT OF WOO DROW L. FOXSTATE OF OHIOCOUNTY OF FRANKLIN : ss

Woodrow L. Fox, being first duly cautioned and sw orn, states as follows:1. I make this Affidavit pursuant to my personal knowledge.2. I am licensed by the Ohio Department of Insurance to issue surety bail

bonds, and I own W oodrow L. Fox, Sr., LLC.3. Nevin P. Keim works with Woodrow L. Fox, Sr., LLC as a bail bondsm an.

Mr. Keim's primary territory is Licking County, Ohio.4. Sometime after Judge David Branstool commenced his elected term as

judge to the Licking County Court of Com mon Pleas in 2010, I spoke to Olivia Thorpe,who is the assistant to the Licking County Clerk of Court . Ms. Thorpe advised m e thatthe Court of Comm on Please would not permit a defendant to post a surety bond whena 10% appearance bond was issued. Rather, the defendant was required to make acash only bond.

5. Since 2010, neither I nor my agents have been permitted to issue a suretybond on behalf of a defendant who was issued a 10% appearan ce bond by the LickingCounty Court of Comm on Pleas.

6. In August 2012, I retained attorne y Gary A. Rosenhoffer to inquire aboutthis matter. On or about August 28, 2012, Mr. Rosenhoffer advised the Licking CountyProsecutor, Kenneth W. O swalt, that when the Court of Comm on Pleas issued a 10%Bond, the Licking County Clerk of Court refused to accept a surety bond.


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7. On September 6, 2012, the Prosecutor stated that he had contacted the"Judges of the Court" (not the Clerk itself) and that the "Court" was not inclined tochange its current practice. (Exhibit C to the Complaint for Mandamus.) In addition, theProsecutor advised me that, "the Judge who sets [a 10% Bond] will expect the Clerk ofCourts to accept only the type(s) of bond(s) specifically approved by the assignedJudge."

FURTHER AFFIANT SAYETH NA G HT- -"ZK

oodrow L. Fox

. rUSworn to before me and subscribed in my presence this ^___ day of March,2013.

K A R E N H E L D P H I P P SA t t o r n e y a t L a wN o t a r y P u b l ic , S t a t e o f O h i oM y C o m m i ss io n H a s N o E x p i ra t io nSect ion 147,03 R.C.

Notar Public, StatE c Ohio

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