CBA Record November-December 2022

the ordinary meaning of “surety” con templates a third-party arrangement, as opposed to posting cash or property. See Saunders v. Hornecker, 2015 WY 34, 344 P.3d 771, 779 (Wyo. 2015) (citing cases). The Washington Supreme Court exhaus tively summarized this approach in State v. Barton, 181 Wn.2d 148, 331 P.3d 50, 53-54 (2014). Constitutional objections to the PFA’s abolition of cash bail would lack merit if the Illinois Supreme Court finds Article I, § 9 does not refer to monetary funds. Likewise, interpretation of the term the “amount of bail” in the crime victims’ rights amendment, Article I, § 8.1(a)(9), would have to exclude monetary bail. Inherent Judicial Authority to Set Monetary Bonds Courts undoubtedly have broad inher ent power over bail. As Bailey , and People ex rel. Hemingway v. Elrod, 60 Ill.2d 74 (1975), make clear, even the state con stitution cannot limit inherent judi cial authority. In both cases, the Illinois supreme court ruled that the trial court had properly detained a defendant pre trial, notwithstanding Article I, § 9 not identifying the charged offense. The critical issue is whether inherent authority extends to setting monetary bonds. People ex rel. Davis v. Vazquez, 92 Ill.2d 132, 148 (1982), may provide a window for so finding. Despite the

absence of a bail statute or rule in juvenile cases, including when the state pursues an interlocutory appeal, the court held that the juvenile court had the power to set an appropriate bail amount. See also Pulido v. People, 69 Ill.2d 393 (1978) (juvenile not precluded from seeking bail pending a delinquency appeal); People ex rel. Sammons v. Snow, 340 Ill. 464, 468 (1930) (municipal court rule setting bail amounts did “not limit the amount which may be fixed by the court”). Accordingly, if inherent judicial power includes set ting monetary bail, the legislature may not lawfully abolish it. See Murneigh v. Gainer, 177 Ill.2d 287, 307 (1997); Warren, 173 Ill.2d at 370; O’Connell v. St. Francis Hospital, 112 Ill.2d 273, 283 (1986); Agran v. Checker Taxi Co., 412 Ill. 145, 149 (1952). PFA’s Definition of Constitutional Terms The PFA defines two words used in Article I, § 9: “bail” and “sureties.” See 725 ILCS 5/102-6 and 110-1(b). It further strikes the term “denying or fixing the amount of bail” from the Rights of Crime Victims and Witnesses Act, 725 ILCS 120/4(a)(7.5), 4.5(c-5)(16), which is directly derived from Article I, § 8.1(a)(9). The PFA’s attempt to provide mean ing to constitutional terms intrudes into an arena reserved for the courts. The prerogative to interpret the constitution

clearly belongs to the judiciary. Marbury v. v. Madison, 5 U.S. 137, 177, 1 Cranch, 137 (1803); People v. Gersch, 135 Ill.2d 384, 388-89 (1990). A substantial sepa ration of powers issue arises if judicial interpretation of the Illinois Constitu tion materially differs from the PFA. Illinois Constitution’s Bail Provisions Delegates at the Constitutional Conven tion precipitating the 1970 Illinois Con stitution accepted that posting money constituted a routine bail bond condition. They debated the equities of monetary bail, only to leave the substance of the bail clause from previous constitutions intact. See Record of Proceedings, Sixth Illinois Constitutional Convention, Vol. III, pp. 1654-59. A minority proposal would not have eliminated monetary bail but would have required “security” not exceeding the accused’s “financial means.” See Bill of Rights Committee, Minority Proposal Number II, Vol. VI, pp. 175-190. There fore, a credible argument can be made that, at the time of the 1970 Constitu tion’s adoption, the right to be “bailable by sufficient sureties” included monetary bail. See People ex rel. Daley v. Joyce, 126 Ill.2d 209, 219 (1988); see also People v. Jackson, 69 Ill.2d 252, 260 (1977). Dictionary definitions also support the proposition that the word “surety” includes money. Saunders v. Hornecker, 2015 WY 34, 344 P.3d 771, 779 (Wyo. 2015). Some state supreme courts have found their constitution’s term “sufficient sureties” includes cash and have sustained bail systems in which cash was the only type of bail surety. In Gendron , our supreme court addressed the Illinois Constitution’s “suf ficient sureties” language. The “sureties” at issue in Gendron (and found “sufficient”) included 10% deposit, full cash and prop erty bonds. It may be difficult to reconcile Gendron with the abolition of monetary bail. Article I, § 8.1(a)(9)’s reference to crime victims’ rights when the court sets “the amount of bail” seemingly contemplates a monetary component. The language similarity with Article I, § 9 (“bailable”)

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