Bail bond agencies act as surety for bonds for compensation in criminal cases in Michigan. Without them, our jails would be more over-crowded. The agencies can, however, seek return of funds under two statutes, MCL 765.28 and MCL 600.4835. The Michigan Court of Appeals clarified the relationship of the two in Calvert Bail Bond Agency, LLC v County of St. Clair, (Docket No. 324824).

Facts: The plaintiff, Calvert Bail Bond Agency, was the surety for several criminal defendants who did not appear for their court hearings, which resulted in forfeiture judgments being entered against them. Plaintiff paid the forfeiture amounts and brought the defendants into the court more than 56 days after the entry of the corresponding forfeiture amounts.

Calvert's request for recovery of the funds it paid under MCL 765.28, but was denied. It then turned to the circuit court and sought recovery under MCL 600.4835, which permits a circuit court to "remit any penalty" when it determines that doing so would be "just and equitable"  The trial court held no cause of action as Calvert’s sole remedy for return of the funds was under MCL 765.28. The Court of Appeals disagreed and reversed and remanded.

The Michigan Court of Appeals (MCOA) interpreted the two statutes involved explaining that they are In Pari Materia (Latin, Upon the same subject) a designation applied to statutes or general laws that were enacted at different times but pertain to the same subject or object. Such statutes must be interpreted in light of each other since they have a common purpose for comparable events or items.

The procedure to seek return of the funds, according to the Court of Appeals, is as follows:

1. When the criminal defendant fails to appear, a default is entered under MCL. 765.28(1)

2. Notice is given to the surety of the failure to appear

3. The court also notifies the surety that they can appear to present facts why the defendant didn’t appear and ask that the judgment not be entered.

Once the judgment is entered under MCL 765.28 (1), sec. (2) allows the surety to have the judgment set aside and the money returned within one year from its entry when the defendant has been apprehended, the ends of justice haven’t been thwarted, and the county has been repaid its costs in apprehending the defendant.

The mandatory return of the funds, however, is subject to sec. 3 of the statute, which makes the return inapplicable where the defendant is apprehended 56 days or more after the entry of judgment of forfeiture and the surety hasn’t paid the full amount.

The question is: Whether the remedy under MCL 600.4835 remains viable. The Michigan COA held that it is. The statute governs the return of penalties, which includes forfeited recognizances. The statute, however, gives the court discretion to return all or part of the forfeited amount.

The MCOA reversed and remanded to the trial court to evaluate the plaintiff’s claims under MCL 600.4835.