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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-12-0001047
                                                               21-JUN-2017
                                                               08:15 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                            ---oOo---
________________________________________________________________

                            SCWC-12-0001040
        STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, v.
         SEMISI NELSON, Respondent/Defendant-Appellee, and
              INTERNATIONAL FIDELITY INSURANCE COMPANY,
            Petitioner/Real Party in Interest/Appellant.
               (CAAP NO. XX-XXXXXXX; CR. NO. 05-1-2446)

                                     AND

                           SCWC-12-0001041
        STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, v.
         KAREN TERUYA, Respondent/Defendant-Appellee, and
             INTERNATIONAL FIDELITY INSURANCE COMPANY,
           Petitioner/Real Party in Interest/Appellant.
              (CAAP NO. XX-XXXXXXX; CR. NO. 02-1-1718)

                                     AND

                          SCWC-12-0001042
       STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, v.
    CONRADO CABIGON, JR., Respondent/Defendant-Appellee, and
            INTERNATIONAL FIDELITY INSURANCE COMPANY,
          Petitioner/Real Party in Interest/Appellant.
             (CAAP NO. XX-XXXXXXX; CR. NO. 08-1-1192)

                                     AND
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                             SCWC-12-0001043
         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, v.
        STEVE D. FERRARIS, Respondent/Defendant-Appellee, and
               INTERNATIONAL FIDELITY INSURANCE COMPANY,
             Petitioner/Real Party in Interest/Appellant.
                (CAAP No. XX-XXXXXXX; CR. NO. 11-1-0306)

                                     AND

                            SCWC-12-0001044
         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, v.
         DAVID K. BERRY, Respondent/Defendant-Appellee, and
              INTERNATIONAL FIDELITY INSURANCE COMPANY,
            Petitioner/Real Party in Interest/Appellant.
               (CAAP NO. XX-XXXXXXX; CR. NO. 10-1-1289)

                                     AND

                            SCWC-12-0001045
        STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, v.
        JUSTIN NAKAMURA, Respondent/Defendant-Appellee, and
              INTERNATIONAL FIDELITY INSURANCE COMPANY,
            Petitioner/Real Party in Interest/Appellant.
               (CAAP NO. XX-XXXXXXX; CR. NO. 09-1-1364)

                                     AND

                            SCWC-12-0001046
         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, v.
           CEDRO MUNA, Respondent/Defendant-Appellee, and
              INTERNATIONAL FIDELITY INSURANCE COMPANY,
            Petitioner/Real Party in Interest/Appellant.
               (CAAP NO. XX-XXXXXXX; CR. NO. 09-1-0616)

                                     AND

                            SCWC-12-0001047
         STATE OF HAWAIʻI, Respondent/Plaintiff-Appellee, v.
         JOHN PAUL LUNA, Respondent/Defendant-Appellee, and
              INTERNATIONAL FIDELITY INSURANCE COMPANY,
            Petitioner/Real Party in Interest/Appellant.
               (CAAP NO. XX-XXXXXXX; CR. NO. 10-1-0621)

________________________________________________________________



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                                SCWC-12-0001040

             CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

                                  JUNE 21, 2017

    RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, JJ., AND CIRCUIT
         COURT JUDGE NAKASONE, IN PLACE OF WILSON, J., RECUSED

                    OPINION OF THE COURT BY McKENNA, J.

                                I.   Introduction

       In eight separate criminal cases,1 Real Party in Interest-

Appellant/Petitioner, International Fidelity Insurance Company

(“International Fidelity” or “International”) had issued eight

separate powers of attorney (“POA[s]”) to either Ida Peppers

(“Peppers”) or Charles Fisher (“Fisher”) to execute a bail bond

on behalf of a defendant in each case.             In each criminal case,

the bonded defendant failed to appear as required, and a

Judgment and Order of Forfeiture of Bail Bond (“Judgment and

Order of Forfeiture” or “forfeiture judgment”) was entered in

the Circuit Court of the First Circuit (“circuit court”).

       Within days of the entry of the forfeiture judgments, the

court provided notice of those judgments to the surety listed on

the bonds — either Peppers of Freedom Bail Bond (“FBB”) or

Fisher of AAA Local Bail Bonds (“AAA”).             The court later issued

letters to International Fidelity informing it of each Judgment

1
   State v. Teruya, Cr. No. 02-1-1718; State v. Nelson, Cr. No. 05-1-2446;
State v. Cabigon, Cr. No. 08-1-1192; State v. Muna, Cr. No. 09-1-0616; State
v. Nakamura, Cr. No. 09-1-1364; State v. Luna, Cr. No. 10-1-0621; State v.
Berry, Cr. No. 10-1-1289; State v. Ferraris, Cr. No. 11-1-0306.

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and Order of Forfeiture and demanding payment.           Over thirty days

after International Fidelity received those letters – in fact,

in each of the cases except in State v. Ferraris, Cr. No. 11-1-

0306, it was several hundred days later — International Fidelity

moved to set aside each of the forfeiture judgments, stating

that it did not receive notice of the forfeiture judgments as

required under HRS § 804-51 (2014).

    Upon consolidating the motions, the circuit court denied

them, concluding that the requirements of HRS § 804-51 were

satisfied when notice of the forfeiture judgments had been

issued to Peppers of FBB or Fisher of AAA.          The court also ruled

that International Fidelity nevertheless received notice of the

forfeiture judgments when it had received the Judiciary’s

letters, and that International Fidelity’s motions to set aside

were untimely.

    In a published opinion, the ICA affirmed the circuit

court’s “Findings of Fact, Conclusions of Law, and Order Denying

International Fidelity Insurance Company’s Consolidated Motions

to Set Aside Judgment Entered Against International Fidelity

Insurance Company” based on the circuit court’s conclusion that

due process and the requirements of HRS § 804-51 were satisfied

when notice of the forfeiture judgments had been issued to

Peppers or Fisher.     The ICA did not address whether the State’s

letters to Fidelity Insurance satisfied the statute’s notice
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requirements.       See State v. Nelson, 139 Hawaiʻi 147, 164 n.13,

384 P.3d 923, 940 n.13 (App. 2016).

       International Fidelity timely filed an Application for a

Writ of Certiorari (“Application”) on December 23, 2016.

For the following reasons, the ICA correctly determined that

notice to International Fidelity of the forfeiture judgments was

not required by due process or under HRS § 804-51.

Specifically, HRS § 804-51 requires that notice be issued to the

“surety on the bond,” and the bonds at issue identify only FBB

or AAA — and not International Fidelity — where the surety is

required to be named pursuant to Criminal Administrative Order

No. 2.1.      Additionally, to the extent the forfeiture judgments

may be ambiguous, we clarify that the forfeiture judgments were

entered “against the . . . surety or sureties on the bond,”

i.e., Peppers of FBB or Fisher of AAA.

                                II.   Background

       To provide context to the proceedings below, we begin with

a general overview of the bail process and observations

regarding the at-issue bail bonds and powers of attorney, before

discussing the circuit court and ICA proceedings and decisions

in this consolidated matter.

A.     Bail Process and Governing Laws

       Bail, or the giving of bail, is “the signing of the

recognizance by the defendant and the defendant’s surety or
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sureties, conditioned for the appearance of the defendant at the

session of a court of competent jurisdiction to be named in the

condition, and to abide by the judgment of the court.”               HRS §

804-1 (2014).      The judge2 admitting a defendant to bail has the

discretion to set the amount of bail; in doing so, the judge

considers both “the punishment to be inflicted on conviction,

and the pecuniary circumstances of the party accused.”               HRS §

804-9 (2014); Haw. Const. art I, § 12 (“Excessive bail shall not

be required . . . .        The court may dispense with bail if

reasonably satisfied that the defendant or witness will appear

when directed, except for a defendant charged with an offense

punishable by life imprisonment.”).

      1.     Registering the Purchase of a Bail Bond from a Bail
             Bondsperson

      A person charged with a crime may purchase a bail bond from

a professional bondsperson for five to fifteen3 percent of the


2
   Depending on the punishment for the offense charged, a judge, justice of a
court of record, including a district judge, or a sheriff, sheriff’s deputy,
chief of police or any person named by the chief of police, “shall be
competent to admit [an] accused to bail.” HRS § 804-5 (2014).
3
             (a) The amount of compensation which may be collected on
             any bail bond . . . by one or more persons acting as
             sureties thereon shall not exceed a one[-]time only fee
             from five to fifteen per cent of the amount thereof, but
             need not be less than $50 in any event; provided that
             additional fees, subject to subsection (b), may be
             collected for:
                   (1) The posting of a surety insurance bond as
                        defined in section 431:1-201(1);
                   (2) The posting of a bond on behalf of a person
                        whose case is pending appeal; or
                   (3) The posting of a bond in which more than one
                                                              (continued . . .)
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total amount of bail set.         See Hawaii Crime Commission, Study of

Bail Forfeitures in Hawaii 3 (1984) (“Bail Study”).              Bail

bondspersons who qualify as “sureties” are either self-funded4 or

are licensed insurance producers pursuant to HRS chapter 431,

article 9A.      See HRS § 804-10.5(b)(2)–(3);5 HRS § 431:9A-102


(. . . continued)
                        year has passed since the filing thereof.

             (b) The compensation collected pursuant to sections 804-
             62(a)(2) and (a)(3), in any year after the first year, may
             be collected annually, and:
                   (1) Shall be charged on a prorated basis; and
                   (2) Shall not exceed the percentage charged in the
                        first year.

HRS § 804-62 (2014).
4
   As a present practical matter, the percentage of bail bondspersons who are
self-funded is likely minimal due to a 1987 change in the law regarding the
deposit of security for bail bonds. Prior to 1987, bail bondspersons could
use the same security for multiple bonds. See Bail Study, at 34 (“The
current law is ambiguous as to the assets which should be maintained by a
bondsman. H.R.S. §804-10[*] appears to require only that a bondsman have or
be able to offer proof of assets totaling twice the face value of the
individual bond posted. No provision is made for an accumulation of assets
to secure a large number of outstanding bonds.”). In 1987, the legislature
clarified HRS chapter 804 to require a deposit of separate unencumbered
property interests to secure each bail bond. See 1987 Haw. Sess. Laws Act
139, § 9(3) at 315–16; HRS § 804-11.5(a),(f) (2014) (“Any person who is
permitted to give bail . . . may secure the bail bond by a deposit . . . of
[cash, credit or debit card authorization, or unencumbered interests in
personal or real property] . . . . For the purposes of this section, an
unencumbered interest in real property, stocks, or bonds, means that the
interest is not encumbered by any lien or encumbrance or is not currently
being used as security for a bail bond.” (emphasis added)).

* “No person shall be received as the surety for the appearance of the party
accused, who does not own or possess property either real or personal within
the State, to double the amount of the bail bond. . . .” HRS § 804-10
(1985).
5
             Sureties; qualification. (a) In determining the
             sufficiency of a surety or sureties, the court shall
             consider the surety’s or sureties’:
                   (1) Character;
                   (2) Reliability;
                   (3) Place of residence; and
                   (4) Financial and employment circumstances.
                                                               (continued . . .)
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(“‘Insurance producer’ or ‘producer’ means a person required to

be licensed under the laws of this State to sell, solicit, or

negotiate insurance.”).        Unlike self-funded bail bondspersons,

bail bondspersons who are licensed insurance producers do not

have to comply with single surety property requirements6 or



(. . . continued)
            (b) No person shall be [a] sufficient surety who:
                  (1) Has been convicted of perjury for submitting a
                      false statement under section 804.11-5;
                  (2) Does not satisfy the requirements of section 804-
                      11.5; or
                  (3) Does not satisfy the requirements of article 9A,
                      chapter 431, if posting an insurance bond as
                      defined in section 431:1-210(1).

HRS § 804-10.5 (2014). In 2005, HRS § 804-10.5 (1993) was in effect, and is
therefore applicable to the bond in Nelson, Cr. No. 05-1-2446. As noted by
the ICA, the textual difference between the 1993 and 2014 versions of HRS §
804-10.5 is limited to a reference to “article 9” instead of “article 9A.”
See Nelson, 139 Hawaiʻi at 163 n.11, 384 P.3d at 939 n.11. In 2005, HRS
chapter 431, article 9, concerned the licensing of insurance adjusters,
independent bill reviewers, and limited service representatives. For the
purposes of the issues raised in this case, this does not alter the scheme
for the qualification of sureties with respect to the Nelson bond.

             Surety insurance defined. Surety insurance includes:
             (1) Bail bond insurance, which is a guarantee that any
             person, in or in connection with any proceedings in any
             court, will:
                   (A) Attend in court when required, or
                   (B) Will obey the orders of judgment of the court,
                        as a condition to the release of the person from
                        confinement, and the execution of bail bonds for
                   any such purpose. The making of property or cash
                   bail does not constitute the transacting of bail bond
                   insurance.

HRS § 431:1-210(1) (2005).
6
             One surety sufficient; when. A single surety is
             sufficient, if the surety offers cash, a credit or debit
             card authorization, stocks, bonds, or real property in
             accordance with section 804-11.5; otherwise, there shall be
             two or more sureties.

HRS § 804-11 (2014).


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deposit any security with the court7 if their bonds are

guaranteed by a surety insurer.             See HRS § 431:1-202 (2005)

(“Insurer means every person engaged in the business of making

contracts of insurance and includes reciprocal or interinsurance

exchanges.”); HRS § 431:1-210(1) (defining surety insurance);

supra note 5 (quoting text of HRS § 431:1-210(1)); HRS §

431:10F-101 (2005) (surety’s requirements deemed met by surety

insurer);8 Bail Study, at 32 (citing HRS § 431-636 (1976)

(predecessor of HRS § 431:10F-101)).


7
             Cash, credit and debit authorization, stocks,
             bonds, or real property as security for bail. (a) Any
             person who is permitted to give bail in accordance with
             sections 804-7.4 may secure the bail bond by a deposit,
             with the clerk of the appropriate court, of:
                   (1) Cash or credit or debit card authorization equal
                        to the amount of the bail;
                   (2) The unencumbered interest in personal property
                        which as a marked value of not less than the
                        amount of the bail bond; or
                   (3) Deeds for real property:
                         (A) Situated in this State;
                         (B) Not exempt from attachment of execution
                             under section 651-92;
                         (C) Owned by the person depositing the bail;
                             and
                         (D) Consisting of an unencumbered interest the
                             value of which is at least double the
                             amount of the bail bond.
             . . . .

HRS § 804-11.5 (2014).
8
             Requirements deemed met by surety insurer. Whenever by
             law or by rule of any court, public official, or public
             body, a surety bond is required or is permitted to be
             given, provided the bond is otherwise proper and its
             conditions are guaranteed by an authorized surety insurer
             or by an unauthorized surety insurer pursuant to article 8,
             part II, the bond shall be approved and accepted and shall
             be deemed to fulfill all requirements as to number of
             sureties, residence or status of sureties, and other
             similar requirements, and no justification by the surety
                                                              (continued . . .)
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       “[T]he bonds[person] does not actually post the bail with

the court, but merely registers the bond purchase.”              Bail Study,

at 32.     From July 1, 2002 through June 9, 2010, Criminal

Administrative Order No. 2.1 was in effect and outlined

procedures for registering or filing bail bonds.              Requirements

included: (1) “[e]ach and every bail bond shall conform to the

‘Sample Standard Form for Bail Bonds’ attached to this order”;

(2) “[i]ndividuals and/or entities issuing bail bonds shall be

responsible for ensuring that all information appearing on a

bond is correct”; and (3) “[e]ach and every bail bond shall have

attached to it a power of attorney indicating the insurance

company that is insuring the bond.”           See Crim. Admin. Order No.

2.1 at D-17A.

       After Criminal Administrative Order No. 2.1 was rescinded

on June 9, 2010, there were no court rules or orders regarding

bail until July 1, 2011, when HRPP Rule 46(b) took effect.9


(. . . continued)
            shall be necessary. For the purpose of this section,
            surety bond shall also include a recognizance, obligation,
            stipulation or undertaking.

HRS § 431:10F-101 (2014).
9
    HRPP Rule 46(b) (2011) states:

             (b) Bond.
                   A party seeking release on bail by posting bond shall
             submit the bond in a form that substantially complies with
             Form J annexed to these rules. If a bail bond is secured
             by insurance, a copy of the bail agent’s power of attorney
             shall be attached to the bond, and shall be supported by
             the affidavit or declaration of the bail agent authorized
                                                              (continued . . .)
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     2.     Bond Forfeiture Provisions

     By statute, the following language is deemed to be set

forth in each and every bond or recognizance, whether actually

set forth in the bond or recognizance, or not:

                  Whenever the court, in any criminal cause, forfeits
            any bond or recognizance given in a criminal cause, the
            court shall immediately enter up judgment in favor of the
            State and against the principal or principals and surety or
            sureties on the bond, jointly and severally, for the full
            amount of the penalty thereof, and shall cause execution to
            issue thereon immediately after the expiration of thirty
            days from the date that notice is given via personal
            service or certified mail, return receipt requested, to the
            surety or sureties on the bond, of the entry of the
            judgment in favor of the State, unless before the
            expiration of thirty days from the date that notice is
            given to the surety or sureties on the bond of the entry of
            the judgment in favor of the State, a motion or application
            of the principal or principals, surety or sureties, or any
            of them, showing good cause why execution should not issue
            upon the judgment, is filed with the court. If the motion
            or application, after a hearing held thereon, is sustained,
            the court shall vacate the judgment of forfeiture and, if
            the principal surrenders or is surrendered pursuant to
            section 804-14 or section 804-41, return the bond or
            recognizance to the principal or surety, whoever shall have
            given it, less the amount of any cost, as established at
            the hearing, incurred by the State as a result of the
            nonappearance of the principal or other event on the basis
            of which the court forfeited the bond or recognizance. If
            the motion or application, after a hearing held thereon, is
            overruled, execution shall forthwith issue and shall not be
            stayed unless the order overruling the motion or
            application is appealed from as in the case of a final
            judgment.

HRS § 804-51 (emphases added); id. (“This section shall be

considered to be set forth in full in words and figures in, and

(. . . continued)
            to furnish bail for compensation. The declaration or
            affidavit shall identify the insurer, provide the agent’s
            and insurer’s license numbers, attest the agent and the
            insurer are currently licensed and in good standing with
            the Insurance Commissioner of the State of Hawaiʻi, and
            attest the agent and the insurer are in compliance with
            Hawaiʻi law governing bail bonds.


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to form a part of, and to be included in, each and every bond or

recognizance given in a criminal cause, whether actually set

forth in the bond or recognizance, or not.”).

B.     Bail Bonds Filed in Cr. Nos. 02-1-1718, 05-1-2446, 08-1-
       1192, 09-1-0616, 09-1-1364, 10-1-0621, 10-1-1289, and 11-1-
       0306

       Except for the bail bond issued in State v. Ferraris, Cr.

No. 11-1-0306, each of the remaining seven bonds were issued

between October 27, 2005 and June 2, 2010, and were therefore

required to conform with the “Sample Standard Form for Bail

Bonds” attached to Criminal Administrative Order No. 2.1, as

that order was in effect from 2002 until June 9, 2010.                The bond

in Ferraris was issued on March 8, 2011, after Criminal

Administrative Order No. 2.1 was rescinded, but before HRPP Rule

46 was amended to provide procedures for the posting of bail

bonds.      In any event, the Ferraris bond appears to also conform

to the “Sample Standard Form for Bail Bonds” attached to

Criminal Administrative Order No. 2.1.

       The “Sample Standard Form for Bail Bonds” requires that the

surety be identified at the top of the bail bond, together with

the surety’s address and telephone number.             Pursuant to that

requirement, the surety listed on seven bail bonds is “Ida

Peppers, Freedom Bail Bond,” where the bonds were signed by

either Peppers or Linda Del Rio (“Del Rio”).              The surety listed

on the remaining bail bond is “AAA Local Bail Bonds, Charles
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Fisher General Agent,” and signed by Fisher.           International

Fidelity is not identified on any of the bail bonds.

    Instead, International Fidelity had issued the POAs that

were attached to each of the bail bonds.          Each of the POAs

consisted of a pre-printed form that was filled in and signed by

an “executing agent” or “atty in fact.”          The pre-printed forms

for each of the POAs were identical except for that used in

State v. Nelson, Cr. No. 05-1-2446.         The seven identical pre-

printed forms read as follows:

           KNOW ALL MEN BY THESE PRESENTS, that INTERNATIONAL FIDELITY
           INSURANCE COMPANY, a corporation duly organized and
           existing under the laws of the State of New Jersey, has
           constituted and appointed, and does hereby constitute and
           appoint, [sic] its true and lawful Attorney-in-Fact, with
           full power and authority to sign the company’s name and
           affix its corporate seal to, and deliver on its behalf as
           surety, any and all obligations as herein provided, and the
           execution of such obligations in pursuance of these
           presents shall be as binding upon the company as fully and
           to all intents and purposes as if done by the regularly
           elected officers of said company at its home office in
           their own proper person; and the said company hereby
           ratifies and confirms all and whatsoever its said Attorney-
           in-Fact may lawfully do and perform in the premises by
           virtue of these presents. THIS POWER OF ATTORNEY IS VOID
           IF ALTERED OR ERASED, THE OBLIGATION OF THE COMPANY SHALL
           NOT EXCEED THE SUM OF [   ] THOUSAND . . . AND MAY BE
           EXECUTED FOR RECOGNIZANCE ON CRIMINAL BAIL BONDS ONLY. . .
           . Authority of such Attorney-in-Fact is limited to the
           execution of appearance bonds and cannot be construed to
           guarantee defendant’s future lawful conduct, adherence to
           travel limitation, fines, restitution, payments or
           penalties, or any other condition imposed by a court not
           specifically related to court appearances. A separate
           Power of Attorney must be attached to each bond executed.

The POA in Nelson reads:

           KNOW ALL MEN BY THESE PRESENTS, that INTERNATIONAL FIDELITY
           INSURANCE CORPORATION, a corporation duly organized and
           existing under the laws of the State of New Jersey has



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              constituted an appointed, and does hereby constitute and
              appoint, [sic10] its true and lawful attorney-in-fact, with
              full power and authority to sign the company’s name and
              affix its corporate seal to, and deliver on its behalf as
              surety, any and all obligations as herein provided, and the
              execution of such obligations in pursuance of these
              presents shall be as binding upon the company as fully and
              to all intents and purposes as if done by the regularly
              elected officers of said company at its home office in
              their own proper person; and the said company hereby
              ratifies and confirms all and whatsoever its said attorney-
              in-fact may lawfully do and perform in the premises by
              virtue of these presents. THIS POWER OF ATTORNEY IS VOID
              IF ALTERED OR ERASED, THE OBLIGATION OF THE COMPANY SHALL
              NOT EXCEED THE SUM OF THIRTY THOUSAND DOLLARS ($30,000.00)
              AND MAY BE EXECUTED FOR RECOGNIZANCE ON CRIMINAL BAIL BONDS
              ONLY. . . . The authority of such attorney-in-fact is
              limited to appearance bonds and cannot be construed to
              guarantee for failure to provide payments, back alimony
              payments, fines or wage law claims.

       Based on the contracts Peppers and Fisher (through Bryan

Nester (“Nester”), partner of AAA) had with International

Fidelity, Peppers and Fisher were required to send immediate

notice to International of any forfeitures declared on any bonds

written by them that were guaranteed by International.

Specifically, Peppers’s contract stated: “The Retailer [Peppers]

will send, immediately, notice to the Company [International] of

any forfeitures declared on any bonds written by him, since such

may affect the Company.”          Similarly, Nester’s contract stated:

“The Producer [Nester and any subproducers, including Fisher]

will send immediately, notice to International of any defaults,




10
   There was a space provided in the text for the insertion of the
appointee’s name, but it was left blank. The same error appears in the other
POAs, except there was no “blank space” for the insertion of a name.
Regardless, none of the parties challenge the effectiveness of the POA.


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forfeitures, or breaches declared on any bonds written by or on

behalf of Producer.”

C.     Licenses of Bail Bondspersons and International Fidelity

       The circuit court found that at all times relevant,

Peppers, Del Rio, and Fisher were registered producers for

[International Fidelity] in the State of Hawaii.               Indeed, the

record contains the licensure certificates for both Peppers and

Del Rio, which were issued by the Insurance Division of the

Department of Commerce and Consumer Affairs (“DCCA”).                The

certificates identify Peppers and Del Rio as “resident

producers” of surety insurance.           Although the record does not

contain a copy of Fisher’s license, it was represented in a

court brief that at the time of the subject bail transaction,

Fisher was “an appointed and authorized bail bond agent in the

State of Hawaii under the company AAA Local Bail Bonds.”11                  A

“bail agent” is a type of insurance producer.              See HRS § 431:9N-

101 (Supp. 2016).

       The circuit court made no specific finding, however, as to

International Fidelity’s license status.             International Fidelity

had consistently represented to the circuit court that it was a

“duly licensed and authorized surety in the state of Hawaii,”

11
    A review of the DCCA’s insurance license database confirms that both
Charles R. Fisher and AAA Local Bail Bonds were each at one time licensed as
a “resident producer” of surety insurance. See http://insurance.ehawaii.gov/
hils/info/301946/203113 (Charles R. Fisher); http://insurance.ehawaii.gov
/hils/info/300930/201841 (AAA Local Bail Bonds).

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but did not specify whether it was a licensed insurance producer

governed by HRS chapter 431, article 9A.

D.     Circuit Court Proceedings

       1.     Issuance of Judgments and Orders of Forfeiture

       In each of the eight criminal cases, the defendant failed

to appear before the court when required.             The bail bond posted

on behalf of each defendant was therefore forfeited, and the

circuit court entered a Judgment and Order of Forfeiture in each

case.      The language used in each forfeiture judgment was

similar, and substantially took one of the following two forms,

with relevant language underlined.            The first form was used in

Nelson, Teruya, Cabigon, and Nakamura:

                    The above-entitled case having come . . . before the
              . . . Judge of the above-entitled court, on [said date],
              and the Defendant having failed to appear or to be present
              on the said date, and the Court, upon motion of the State
              of Hawaii, having on said date ordered and declared the
              forfeiture of the bail bond filed and posted in this case,
              executed by said Defendant, as principal, and INTERNATIONAL
              FIDELITY INSURANCE COMPANY (FREEDOM BAIL BOND), through its
              agent and attorney in fact, IDA PEPPERS, as surety, in the
              sum of . . . ,
                    NOW, THEREFORE, pursuant to the foregoing order, IT
              IS HEREBY ORDERED, ADJUDGED AND DECREED that the State of
              Hawaii does have and recovers from the principal and the
              surety above named, jointly and severally, the sum of . . .
              , and that execution issue herein according to law.

The second form was used in Ferraris, Muna, Berry (where “this

cause” is stated instead of “this case”), and Luna (where

“Charles Fisher” is stated instead of “Ida Peppers (Freedom Bail

Bond)”):

                    The above-entitled case having come . . . before the
              . . . Judge of the above-entitled court, on [said date],
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              and the Defendant having failed to appear or to be present
              on the said date, and the Court, upon motion of the State
              of Hawai[ʻ]i, having on said date ordered and declared the
              forfeiture of the bail bond filed and posted in this case,
              executed by said Defendant, as principal, and INTERNATIONAL
              FIDELITY INSURANCE COMPANY, through its agent and attorney
              in fact, IDA PEPPERS (FREEDOM BAIL BOND), as surety, in the
              sum of . . . ,
                    NOW, THEREFORE, pursuant to the foregoing order, IT
              IS HEREBY ORDERED, ADJUDGED AND DECREED that the State of
              Hawai[ʻ]i does have and recovers from the principal and the
              surety above named, jointly and severally, the sum of . . .
              , and that execution issue herein according to law.

In most of the cases, either FBB or AAA filed a motion to set

aside the forfeiture judgments within thirty days of receiving

notice of the judgments.12         The motions were typically continued

to allow the bond companies more time to locate the defendants.

Ultimately, none of the judgments were set aside.

       2.     Letters Sent to International Fidelity Subsequent to
              Entry of Judgments and Orders of Forfeiture and
              International Fidelity’s Motions to Set Aside

       Subsequent to the entry of Judgments and Orders of

Forfeiture and any continuances that may have been granted to

FBB or AAA to locate defendants, letters were sent by the

Judiciary to International Fidelity by certified mail, return

receipt requested.        Each letter’s subject line read, “Re:

Notification of Bail Bond Forfeiture,” and stated (or used

similar language):




12
   A review of the record reveals that FBB did not file motions to set aside
in State v. Nakamura, Cr. No. 09-1-1364, and State v. Ferraris, Cr. No. 11-1-
0306. FBB filed an untimely motion to set aside in State v. Berry, Cr. No.
10-1-1289.

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           To Whom It May Concern:

                 Pursuant to Section 804-51, Hawaii Revised Statutes,
           judgment has been entered on [date of relevant Judgment and
           Order of Forfeiture] that bail of [relevant amount] be
           forfeited in the following matter:

                 Case Number: [relevant case number]
                 Case Name: [relevant case name]
                 Name of Issuing General Agent: [Freedom Bail Bond or
                       AAA Local Bail Bonds]
                 Policy No.: [relevant “power number” imprinted on
                       Power of Attorney]

                 Our records indicate that payment is due and owing.
           If payment is not immediately received, appropriate legal
           action will be taken, including but not limited to
           requesting the appropriate Court to determine sufficiency
           of the surety and/or referring the matter to the State of
           Hawaii’s Department of the Attorney General to commence
           collection actions. If you have any questions, please
           contact the Cashier’s Office . . . .

    International Fidelity filed Motions to Set Aside in each

case beyond thirty days from the date it received each of the

Judiciary’s letters.      Specifically, in each case except

Ferraris, International Fidelity’s motions were filed several

hundred days — approximately one to three years — after the

respective letters regarding the Judgment and Order of

Forfeiture were sent.

    3.     Consolidated Motions and Circuit Court’s Disposition

    Upon International Fidelity’s motion, International’s

Motions to Set Aside filed in the eight criminal cases were

consolidated before the Hon. Richard K. Perkins in the Circuit

Court of the First Circuit.       International Fidelity asserted

similar arguments in each case.        Namely, that International

Fidelity was the “surety of record” according to the POAs

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attached to the registered bail bonds, and that it did not

receive “[the] statutorily required notice of the entry of a

judgment and order of forfeiture of bail bond as required under

HRS § 804-51” in any of the cases.         Accordingly, it sought to

set aside the Judgments and Orders of Forfeiture “as against

International” because the circuit court “lacked jurisdiction

over International when each of the judgments was entered” due

to the court’s failure to provide International with the

requisite notice.     International Fidelity also argued that it

would otherwise be deprived of “its rights under HRS § 804-51

and to due process.”      Further, according to International

Fidelity, the notice that issued to either Peppers/FBB or

Fisher/AAA did not constitute notice to it, and the letters it

received from the State were “payment demands” that did not

satisfy the notice requirements under HRS § 804-51.            Lastly,

International argued that good cause existed to set aside the

forfeiture judgments in at least five of the cases — Berry,

Muna, Ferraris, Luna, and Nakamura — as the defendants had been

apprehended and returned to State custody “within months” from

when the Judiciary issued its letters.

    The circuit court disagreed with International Fidelity’s

assertions.    Instead, it determined that International Fidelity

was not entitled to notice pursuant to HRS § 804-51, and that

because International’s consolidated motions were filed outside
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the time limit imposed by HRS § 804-51, the court was “without

the power to consider them.”          (citing State v. Ranger Ins. Co.,

83 Hawaiʻi 118, 124 n.5, 925 P.2d 288, 294 n.5 (1996)).

       In arriving at its disposition, the circuit court first

analyzed the text and legislative history of HRS § 804-51 to

determine whether International Fidelity was entitled to notice

pursuant to that statute.          Relying on a Senate Judiciary

Standing Committee Report that defined “bail bondsman” as “the

surety [referred to] in Chapter 804, Hawaii Revised Statutes,”13

the court concluded “the legislature intended the term ‘surety,’

as used in the notice provisions of HRS § 804-51, to apply to

bondspersons such as Pepper and Del Rio of FBB and Fisher of

AAA.”      Because the notice requirements of HRS § 804-51 were

satisfied when notice was given to FBB or AAA, absent the filing

of a motion or application showing good cause within the thirty-

day period following receipt of notice by FBB or AAA,

International Fidelity was “subject[] . . . to execution on the

bond.”


13
              The purpose of this bill is to change the present law by
              requiring that the courts give a written notice to the bail
              bondsman (referred to as the surety in Chapter 804, Hawaii
              Revised Statutes) upon forfeiture of any bail bond. A bail
              bond is forfeited when a criminal defendant fails to appear
              for a scheduled court appearance. This bill would also
              allow a bail bondsman thirty days, instead of the present
              ten, to object to any forfeiture of a bail bond.

(citing S. Stand. Comm. Rep. No. 857, in 1989 Senate Journal, at 1127
(emphasis added)).

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       The circuit court noted that HRS § 804-51 “requires nothing

more than notice to the surety ‘of the entry of the judgment in

favor of the State.’”         Thus, for the sake of argument, the court

concluded that even if the Judiciary was required to provide

notice directly to International Fidelity, it did so by way of

its mailed letters.         Those letters were not “attempts to execute

on the judgments,” but rather were “meant only to notify

[International] of the entry of the forfeiture judgments, to

demand payment, and to warn [International] of the possibility

of further legal action.”          Thus, “[t]o date, none of the

judgments at issue in this proceeding have been executed upon.”

       Based on the foregoing, the circuit court denied

International Fidelity’s consolidated Motions to Set Aside

Judgment Entered Against International Fidelity Insurance

Company.

B.     Appeal to the ICA

       International Fidelity timely appealed the circuit court’s

denial of its motions, and the ICA consolidated those appeals

under CAAP-12-1040.         International reiterated its arguments that

the forfeiture judgments should be set aside because it did not

receive notice of the judgments as required by HRS § 804-51, and

was therefore deprived of the opportunity to timely locate the

defendants and an opportunity to be heard that is protected

under procedural due process.
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        The ICA chose to “not adopt either party’s position, but

rather agree[d] with the circuit court to the extent it held

that the term ‘surety’ in HRS § 804-51 refers to the

bondspersons (or bail agents) in these cases . . . .”              Nelson,

139 Hawaiʻi at 160, 384 P.3d at 935.          In addition to elaborating

on the same legislative history behind the notice requirement

that had been highlighted by the circuit court, the ICA

carefully examined multiple provisions of both HRS chapters 804

(governing bail) and 431 (governing insurance) to ensure that

its interpretation of HRS § 804-51 was consistent with all

statutory provisions.       See 139 Hawaiʻi at 160–63, 384 P.3d at

936–39.

     In sum, the ICA explained that it was uncontested that

Peppers, Del Rio, and Fisher were “insurance producers” governed

by HRS chapter 431, article 9A.         As “insurance producers,” they

qualified as sureties under HRS § 804-10.5.            Moreover, they had

signed the bond; HRS § 804-1 requires the surety or sureties to

do so.    The ICA also pointed out that the definition of “bail

agent” set forth in HRS § 431:9N-101 (Supp. 2015), describes the

distinct roles of a licensed “insurance producer under article

9A” and an authorized “surety insurer.”           See Nelson, 139 Hawaiʻi

at 162–63, 384 P.3d at 938–39; HRS § 431:9N-101 (Supp. 2015)

(“As used in this article: ‘Bail agent’ means a licensed

insurance producer under article 9A who is appointed by an
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authorized surety insurer, furnishes bail for compensation in

any court in this State, and has the power of attorney to

execute or countersign bail bonds in connection with judicial

proceedings.”).

       The ICA went on to explain that International Fidelity’s

due process rights were not violated because “the notice that

was provided to Peppers . . . and Fisher -- as required under

HRS § 804-51 -- was reasonably calculated to apprise

International Fidelity of the bail forfeiture judgments” in

accordance with Klinger v. Kepano, 64 Haw. 4, 635 P.2d 938

(1981).      Nelson, 139 Hawaiʻi at 165, 384 P.3d at 941.

Additionally, the ICA ruled that the form of the forfeiture

judgments was proper, and that the circuit court “properly

declined to apply HRCP Rule 60(b) or any other civil procedure

rule.”      139 Hawaiʻi at 166, 384 P.3d at 942.

       For these reasons, the ICA affirmed the circuit court’s

October 31, 2012, “Findings of Fact, Conclusions of Law, and

Order Denying International Fidelity Insurance Company’s

Consolidated Motions to Set Aside Judgment Entered Against

International Fidelity Insurance Company.”             Id.

C.     Application for Writ of Certiorari

       International Fidelity timely applied for a writ of

certiorari in each of the eight underlying criminal cases.                  This


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court consolidated those applications under SCWC-12-1040.                The

following two questions were raised in its Application:

           1. Whether the ICA made grave errors of law in holding
           that Hawaiʻi Revised Statutes § 804-51, the bail forfeiture
           statute, did not require the State to give a surety notice
           of bail forfeiture judgments before holding the surety
           liable, thereby depriving the surety of the 30-day search
           period or right to show good cause to set aside the
           judgments under the statute.

           2. Whether the ICA made grave errors of law in holding
           that the failure to provide notice or an opportunity to be
           heard to a surety did not violate the surety’s rights to
           procedural due process where the surety did not receive any
           notice or an opportunity to be heard to contest the
           judgment.

     International Fidelity argues that the ICA erred in its

interpretation of HRS § 804-51, as the statute is unambiguous

and should be plainly read.       According to International, the

forfeiture judgments “clearly identify International as the

surety, not the Bondspersons,” and other jurisdictions require

that the state provide notice of the judgments to the surety

instead of the bondsperson.       International appears to also

suggest that only entities that “provide surety insurance for

bail bonds” can act as a “surety” in Hawaiʻi.          Because a bail

bondsperson or bail agent is only authorized to “sell, solicit

or negotiate surety insurance,” he or she cannot act as a

“surety” as contemplated by Hawaiʻi law.         Moreover, International

Fidelity posits: “[i]f [the ICA’s interpretation of HRS § 804-

51] is correct, the judgment is only enforceable against the

Bondspersons as the sureties, and not International.            The ICA


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failed to explain how the judgment could then be enforced

against International without notice, apparently as a second

surety on the bonds.”      International asks that if the ICA’s

interpretation of HRS § 804-51 is upheld, the “judgments should

be deemed void as against International and only enforceable

against the Bondspersons.”

    International Fidelity also asserts the ICA erred in

determining that its due process rights were not violated.               The

issuance of notice to the bail bondspersons does not amount to

notice to International as: (1) the bail bondspersons were

merely “special agents” of International and therefore notice

provided to the bondspersons “cannot be imputed to

[International],” (2) other jurisdictions would require notice

to International as a matter of due process.

                       III.    Standard of Review

    “Interpretation of a statute is a question of law which

[is] review[ed] de novo.”       Kikuchi v. Brown, 110 Hawaiʻi 204,

207, 130 P.3d 1069, 1072 (App. 2006) (internal quotation marks

and citation omitted).

                              IV.   Discussion

    The crux of International Fidelity’s Application is that it

is a “surety” as that term is used in HRS chapter 804, and was

therefore entitled to notice of the forfeiture judgments

pursuant to HRS § 804-51.       However, International wholly fails
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to engage with the ICA’s careful analysis regarding that court’s

interpretation of the term “surety,” which is in accord with

other provisions of HRS chapters 804 and 431.              Instead,

International Fidelity repeatedly asserts that because it is a

surety insurer, and because its POAs refer to it as the

“surety,” it is a “surety” as that term is used in HRS § 804-51.

These assertions lack any statutory basis.

       The following analysis underscores the correctness of the

ICA’s decision.

A.     International Fidelity Fails to Demonstrate That It
       Qualifies As a Surety under HRS § 804-10.5

       Hawaiʻi law contemplates two types of sureties: property-

based and insurance-based.          A surety on a bail bond must secure

the bail bond by a deposit with the court clerk of personal or

real property.14       If the surety is licensed by the insurance

commission as an “insurance producer,”15 the surety may instead

post an insurance bond.         See HRS § 804-10.5.16      Based on a plain

reading of this statute, any person, including a bail



14
   If depositing cash, credit or debit card authorization, or other personal
property, the market value of which must not be less than the amount of the
bail. See HRS § 804-11.5(a). If depositing deeds of real property, the
market value of the unencumbered interest of which must be at least twice the
amount of the bail. See id.
15
   Or, with respect to the 2005 bond issued in Nelson, as an “adjuster,
independent bill reviewer, or limited service representative.” See HRS §
804-10.5 (1993); supra note 5.
16
     See supra note 6 (quoted text).

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bondsperson or bail agent, can qualify as a “surety” so long as

either of these requirements is met.

     It is undisputed that no property was deposited with the

court clerk as security for bail in any of the criminal cases at

issue here.    Thus, each bail bond was secured by an “insurance

bond” that was posted by an “insurance producer,” such as

Peppers or Fisher.     In other words, a defendant, or others on

behalf of the defendant, purchased from Peppers or Fisher a bail

bond that was guaranteed by an insurance policy issued from

International Fidelity.

     International Fidelity asserts that it posted the bail

bonds directly with the court (through Peppers, Del Rio, or

Fisher as its attorney-in-fact), and therefore was the “surety”

on the bonds, as stated in the POAs.         However, International

fails to explain how it qualifies as a surety under HRS § 804-

10.5.   Indeed, as noted supra Part II.C., the circuit court did

not find, nor did International Fidelity represent, that it is a

licensed “insurance producer” authorized to sell insurance in

Hawaiʻi.   International Fidelity cannot satisfy the requirement

by adopting the licensure status of Peppers, Del Rio, or Fisher,

as they served as International’s attorneys-in-fact, and not the

other way around.     Moreover, nothing in HRS § 431:10F-101 (2014)

(deeming many surety requirements fulfilled so long as the

surety bond is guaranteed by a surety insurer), abrogates the
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ongoing requirement that insurance be sold only by those

properly licensed.        Accordingly, to qualify as a surety on a

bail bond, given that it is not licensed to sell insurance in

Hawaiʻi, International Fidelity would have been required to

deposit the requisite personal or real property with the court

clerk pursuant to HRS § 804-10.5(b)(2), which it did not do.

B.     The “Surety on the Bond” Was Either Peppers of FBB or
       Fisher of AAA

       International Fidelity argues that the ICA and the circuit

court failed to construe HRS § 804-51 by its plain meaning, but

rather supplanted a key term, “surety,” with “bail bondsperson,”

based on legislative history.           As the ICA pointed out, however,

further support beyond legislative history is provided by the

representations made on the face of the bail bonds.

       For example, the ICA noted that the signatures of Peppers

or Del Rio of FBB, or Fisher of AAA, were present on the bonds,

which included language requiring the defendant to comply with

the court’s conditions.         See Nelson, 139 Hawaiʻi at 162, 384 P.3d

at 938.      The bonds do not contain a signature or seal of

International Fidelity, and the signatures of Peppers, Del Rio,

and Fisher do not indicate they had signed on behalf of

International Fidelity.         These facts support the conclusion that

Peppers or Del Rio of FBB or Fisher of AAA were the sureties as

HRS § 804-1 requires the signature of “a defendant’s surety or

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sureties” on a recognizance that the defendant would comply with

applicable conditions.

       Further, at the time the subject bail bonds were issued,

Criminal Administrative Order No. 2.1 was in effect.17               This

order required that all bail bonds follow the “Sample Standard

Form for Bail Bonds.”         The Standard Form provided that the “Name

of Surety” be identified in two separate places on the bond, and

that the address and telephone number of the named surety be

listed at the top of the form.           Additionally, Criminal

Administrative Order No. 2.1 stated that those issuing bail

bonds were “responsible for ensuring that all information

appearing on a bond is correct.”

       The surety named on the bond is critical to applying HRS §

804-51, as the statute requires that when a bond is forfeited,

“the court shall immediately enter up judgment in favor of the

State and against the principal or principals and surety or

sureties on the bond,” and notice be “given via personal service

or certified mail, return receipt requested, to the surety or

sureties on the bond, of the entry of the judgment in favor of

the State.” HRS § 804-51.           As noted supra Part II.B., a

comparison of each of the bail bonds in this matter show that

they conform to the Sample Standard Form for Bail Bonds, and


17
   Criminal Administrative Order No. 2.1 applies except to the bond in
Ferraris, CR. No. 11-1-0306. See supra Part II.B.

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that the “Name of Surety” identified on the bail bond was either

“Ida Peppers, Freedom Bail Bond,” or “AAA Local Bail Bonds,

Charles Fisher General Agent.”           Accordingly, the “surety or

sureties on the bond” was either Peppers or Fisher, not

International Fidelity.

       Thus, a plain language interpretation or strict

construction of HRS § 804-51 leads to the same conclusion: that

the statute required that judgment be entered against, and

notice be given to, Peppers or Fisher, and not to International

Fidelity.       Based on the foregoing, see Parts IV.A.–B.,

International Fidelity’s reliance on the surety law of other

jurisdictions is misplaced.

C.     International Fidelity’s Rights to Due Process Were Not
       Violated

       International presents two arguments as to why it was

entitled, in accord with due process, to receive notice from the

court of the forfeitures.          First, International states that the

ICA incorrectly concluded “that notice can be imputed” to

International because “the Bondspersons were authorized

attorneys-in-fact and registered producers for International.”

Second, International cites to two foreign cases to support its

contention that a surety has a due process right to receive

notice of the forfeiture.




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     As to the first argument, International misunderstands the

ICA’s decision.     At no time did the ICA state that “notice [to

the bail bondspersons] can be imputed” to International because

of some kind of agency relationship.         Rather, the ICA pointed

out that by statute, the text of HRS § 804-51 is included in the

provisions of each bail bond issued in Hawaiʻi.           See Nelson, 139

Hawaiʻi at 164–65, 384 P.3d at 940–41.         As such, when

International executed the surety bonds that secured the bail

bonds (through its limited attorneys-in-fact and registered

producers), it was well aware that notice of forfeiture would be

given to the “surety on the bond” pursuant to HRS § 804-51,

i.e., to Peppers or Fisher.       The ICA concluded: “[u]nder these

circumstances, therefore, the notice that was provided to

Peppers, Del Rio, and Fisher -- as required under HRS § 804-51

-- was reasonably calculated to apprise International Fidelity

of the bail forfeiture judgments.”         See 139 Hawaiʻi at 165, 384

P.3d at 941.

        For its second argument, International Fidelity relies on

State v. Rosillo, 645 N.W.2d 735, 739 (Minn. Ct. App. 2002), and

asserts that the ICA “did not correctly distinguish” the case.

International argues that “[t]he fact that notice was not

provided to either the surety or the bondsperson was not

material to the Court’s holding because the rights to due

process extends to both the surety and the bondsperson.”
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International Fidelity fails to explain, however, why the due

process right described in Rosillo — which flows from Minnesota

Rules of General Practice Rule 702(e) (“Whenever a bail bond is

forfeited by a judge, the surety and bondsman shall be notified

by the court administrator in writing.”) — should have effect in

Hawaiʻi, when the laws of this state require that notice issue

only to the “surety or sureties on the bond.”              HRS § 804-51.

       International’s reliance on People v. Wilshire Ins. Co., 46

Cal. App. 3d 216, 119 Cal. Rptr. 917 (Cal. Ct. App. 1975), and

other California caselaw, is similarly misplaced.               California’s

bail statute is quite dissimilar from Hawaii’s bail statutes, as

it “explicitly requires the clerk to mail notice of any declared

forfeiture to the principal office of the corporate surety and

to the bail agent who posted the bond.”             46 Cal. App. 3d at 220,

119 Cal. Rptr. at 919 (citing Cal. Penal Code § 1305).                Hawaiʻi

has no such explicit requirement.            In any event, even under Cal.

Penal Code § 1305, which requires notice to issue to the

corporate surety only if “the bond plainly displays [its]

mailing address,” notice to International would not be required

as International’s name and mailing address were not “plainly

display[ed]” on any of the bail bonds.

D.     International Fidelity’s Liability for the Judgment

       International Fidelity briefly presents two arguments as to

why the forfeiture judgments are not enforceable against it.
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First, International Fidelity interprets the forfeiture

judgments to have been entered against it, and argues that if

HRS § 804-51 does not require that it be issued notice, then the

entry of judgment against it violates due process.

Alternatively, if Peppers or Fisher are the “sureties on the

bond” who received notice and against whom judgment was issued,

then the forfeiture judgments are enforceable only against

Peppers or Fisher and should be “deemed void as against

International [as a second surety]” because International was

not given adequate notice.

    As to International Fidelity’s first argument,

International is mistaken regarding against which party judgment

was entered.    The “surety on the bond” to whom notice was issued

regarding the forfeiture judgments is the same “surety on the

bond” against whom judgment was entered pursuant to HRS § 804-

51, namely, Peppers or Fisher.

    Again, the statute states:

                 Whenever the court, in any criminal cause, forfeits
           any bond or recognizance given in a criminal cause, the
           court shall immediately enter up judgment in favor of the
           State and against the principal or principals and surety or
           sureties on the bond, jointly and severally, for the full
           amount of the penalty thereof, and shall cause execution to
           issue thereon immediately after the expiration of thirty
           days from the date that notice is given via personal
           service or certified mail, return receipt requested, to the
           surety or sureties on the bond, of the entry of the
           judgment in favor of the State . . . .




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HRS § 804-51 (emphasis added).           With minor exceptions,18 the

language used in the forfeiture judgments in Nelson, Teruya,

Cabigon, and Nakamura was as follows:

                    The above-entitled case having come . . . before the
              . . . Judge of the above-entitled court, on [said date],
              and the Defendant having failed to appear or to be present
              on the said date, and the Court, upon motion of the State
              of Hawaii, having on said date ordered and declared the
              forfeiture of the bail bond filed and posted in this case,
              executed by said Defendant, as principal, and INTERNATIONAL
              FIDELITY INSURANCE COMPANY (FREEDOM BAIL BOND), through its
              agent and attorney in fact, IDA PEPPERS, as surety, in the
              sum of . . . ,
                    NOW, THEREFORE, pursuant to the foregoing order, IT
              IS HEREBY ORDERED, ADJUDGED AND DECREED that the State of
              Hawaii does have and recovers from the principal and the
              surety above named, jointly and severally, the sum of . . .
              , and that execution issue herein according to law.

(Emphasis added.)        The language used in Ferraris, Berry, Muna,

and Luna was:

                    The above-entitled case having come . . . before the
              . . . Judge of the above-entitled court, on [said date],
              and the Defendant having failed to appear or to be present
              on the said date, and the Court, upon motion of the State
              of Hawai[ʻ]i, having on said date ordered and declared the
              forfeiture of the bail bond filed and posted in this case,
              executed by said Defendant, as principal, and INTERNATIONAL
              FIDELITY INSURANCE COMPANY, through its agent and attorney
              in fact, IDA PEPPERS (FREEDOM BAIL BOND), as surety, in the
              sum of . . . ,
                    NOW, THEREFORE, pursuant to the foregoing order, IT
              IS HEREBY ORDERED, ADJUDGED AND DECREED that the State of
              Hawai[ʻ]i does have and recovers from the principal and the
              surety above named, jointly and severally, the sum of . . .
              , and that execution issue herein according to law.

(Emphasis added.)19



18
   The Teruya judgment did not indicate the date of the defendant’s required
appearance.
19
   As previously noted, the Berry judgment used “this cause” instead of “this
case,” and the judgment issued in Luna was directed at “Charles Fisher”
instead of “Ida Peppers (Freedom Bail Bond).”

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    It is perhaps unclear from the text of the judgments

whether International, instead of Peppers or Fisher, was

identified as the “surety” against which the judgments were

entered.    “As surety” can be interpreted to modify

“International Fidelity Insurance Company” despite the long

intervening clause.      Alternatively, “as surety” might be viewed

to modify the preceding noun, “Ida Peppers,” “Ida Peppers

(Freedom Bail Bond),” or “Charles Fisher,” as the case may be.

        “The general rule is that, like any other written

instrument, a court order must ‘be construed reasonably and as a

whole so as to give effect to the intention of the court.’”

Wohlschlegel v. Uhlmann-Kihei, Inc., 4 Haw. App. 123, 130, 662

P.2d 505, 511 (1983) (citing Smith v. Smith, 56 Haw. 295, 301,

535 P.2d 1109, 1114 (1975)).       “‘Moreover, we must give effect

not only to that which is expressed but also to that which is

unavoidably and necessarily implied by the judgment or decree.’”

Id. (quoting Ahuna v. Dep’t of Hawaiian Home Lands, 64 Haw. 327,

333–34, 640 P.2d 1161, 1166 (1982)).         Applying these rules of

interpretation, we construe the forfeiture judgments as having

been entered in compliance with HRS § 804-51, i.e., entered

against the defendant and either Peppers or Fisher, whomever was

the “surety on the bond.”

    International asserts in its alternative argument that

nothing in HRS § 804-51 permits the judgment to be enforced
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against it “as a second surety on the bonds” because it failed

to receive notice of the judgments.            International therefore

concludes that “the judgments should be deemed void against

International and only enforceable against the Bondspersons.”

       As a preliminary matter, International does not provide

support for its assertion that it failed to receive notice of

the judgments, which, in any event, is not supported by the

record.      The circuit court had concluded that International

Fidelity “independently received notice from the Judiciary of

the forfeiture judgment in each of these cases” through the

Judiciary’s letters to International.            On certiorari to this

court, International did not contest the ICA’s decision to

decline “reach[ing] International Fidelity’s challenge to the

circuit court’s alternative holding, that the letters sent by

the Judiciary to International Fidelity were sufficient notice

[to International],” Nelson, 139 Hawaiʻi at 164 n.13, 384 P.3d at

940 n.13, and otherwise failed to assert the circuit court’s

underlying findings of fact and conclusions of law were error.

Thus, these findings of fact20 and conclusions of law remain

intact.

20
   Such findings include: (1) each letter issued by the Judiciary to
International had indicated that it was a “Notification of Bail Bond
Forfeiture,” stated that “judgment has been entered,” and provided “the date
of the judgment and the amount forfeited, the case name and number, the name
of the issuing general agent, and the policy number matching the power of
attorney attached to the bail bond,” and (2) the letters included a demand
for payment, however, none of the judgments had been executed upon.

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    Moreover, as discussed supra Part IV.C., based on the

statutorily mandated incorporation of the text of HRS § 804-51

into each bail bond, International was well aware that notice of

forfeiture would be given to the “surety on the bond,” i.e., to

Peppers or Fisher, and therefore the notice that was provided to

Peppers or Fisher was reasonably calculated to apprise

International Fidelity of the bail forfeiture judgments.

    In sum, International received notice of the forfeiture

judgments by the foregoing means and cannot now evade its

obligations as the issuer (through licensed insurance producers,

such as Peppers or Fisher) of the surety bonds that secured the

defendants’ bail bonds.      In other words, the defendants’ bail

bonds were guaranteed by International Fidelity’s contracts to

insure.   The forfeiture judgments, therefore, have effect as to

International, the surety insurer, insofar as the judgments may

support any payment demands or causes of action the State may

have against International.

                              V.   Conclusion

    For the foregoing reasons, we affirm the ICA’s October 26,

2016 Judgment on Appeal, filed pursuant to its September 29,

2016 opinion, affirming the Circuit Court of the First Circuit’s

October 31, 2012 “Findings of Fact, Conclusions of Law, and

Order Denying International Fidelity Insurance Company’s



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Consolidated Motions to Set Aside Judgment Entered Against

International Fidelity Insurance Company.”

Matson Kelley and                    /s/ Mark E. Recktenwald
Michael C. Carroll
for petitioner                       /s/ Paula A. Nakayama

Brian R. Vincent                     /s/ Sabrina S. McKenna
for respondent
                                     /s/ Richard W. Pollack

                                     /s/ Karen T. Nakasone




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