                                                                                           09/10/2019
                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                  April 2, 2019 Session

   STATE OF TENNESSEE EX REL. RACHEL BETH HAYNES v. ALLAN
                   VINCENT DAUGHERTY

                Appeal from the Circuit Court for Rutherford County
                   No. 57095 Diana Benson Burns, Magistrate
                     ___________________________________

                           No. M2018-01394-COA-R10-CV
                       ___________________________________


W. NEAL MCBRAYER, J., concurring in part and dissenting in part.

        When Allan Daugherty fell behind in paying child support for his three children,
the State of Tennessee, acting on behalf of the children’s mother, filed a petition for civil
contempt. Mr. Daugherty and the State agreed on the amount of the child support
arrearage, $10,288.57, and Mr. Daugherty further agreed that an automatic attachment
could issue for his arrest if he failed to pay child support for a thirty-day period. The
circuit court confirmed an agreed order reflecting both of these agreements.

       Mr. Daugherty failed to pay as promised. And the court entered an order for
Mr. Daugherty’s arrest with a “cash bond of $13,413.45.” The order further provided
that, upon payment, the bond funds would be forwarded to the State and applied to
Mr. Daugherty’s child support arrearage.

        The court entered its order for Mr. Daugherty’s arrest relying on Tennessee Code
Annotated § 36-5-101(f)(2) (2017). As the majority explains, the subsection provides for
two types of bonds in child support enforcement proceedings. One type of bond secures
the child support obligor’s appearance in court. The other type of bond secures the child
support obligation. The parties agree that the court was attempting to set the former type
of bond, an appearance bond. The statute does not specify that an appearance bond must
be in cash, but it does set minimum and maximum limits on the amount of the bond. The
bond must be “not less than two hundred fifty dollars ($250)” or in excess of “the amount
of the [child support] arrears.” Tenn. Code Ann. § 35-5-101(f)(2).

        The sole issue this Court accepted for review in this interlocutory appeal was
“whether the trial court erred in requiring a cash bond.” I agree with the majority that the
circuit court did so in this case. An attachment of the obligor parent and the setting of an
appearance bond are “in the discretion of the court.” Id. Just because a parent agrees that
“an automatic attachment may issue” for lack of payment does not compel the court to
grant one. The record suggests only a slight risk that Mr. Daugherty would not appear
“for such other proceedings as may be held in the matter.” See id. After all,
Mr. Daugherty had appeared and participated in recent child support enforcement
proceedings before the same court. Once the court exercised its discretion to have
Mr. Daugherty arrested, the court failed to take the statute or relevant facts into account
in restricting the bond to cash only. See Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524
(Tenn. 2010) (“Discretionary decisions must take the applicable law and the relevant
facts into account.”). The error was compounded by setting the bond amount at the
statutory maximum.

       I depart from the majority on the scope of its holding and its resort to the federal
and state constitutions. Rather than reversing simply on the basis of an abuse of
discretion, the majority accepts Mr. Daugherty’s invitation to examine the legality of
cash-only bonds. He frames the issue as whether, in a child support enforcement
proceeding, it is “legal in Tennessee to set a bail bond payable only in cash.” Because
my answer is “yes,” I respectfully dissent.

        Mr. Daugherty makes statutory arguments for why a bond payable only in cash is
illegal, all of which I find unpersuasive, as apparently does the majority. The statute
authorizing the setting of an appearance bond for child support enforcement proceedings
does not specify any certain type of bond. See id. In light of the lack of specificity,
Mr. Daugherty argues that appearance bonds in child support enforcement proceedings
should be “treated like a[ny] bail bond.” He claims a statutory right to bail by a
professional bail bondsman or corporate surety. See id. § 40-11-122(3) (2018). But, as
the State points out, the statute upon which Mr. Daugherty relies applies in criminal
matters. See Leighton v. Henderson, 407 S.W.2d 177, 178 (Tenn. 1966) (observing that
bail statutes found in the Criminal Code do “not have any application to habeas corpus
cases which are civil in nature”). And this is not a criminal matter.

       Mr. Daugherty argues that the criminal bail statutes are applicable in this instance
because this is a contempt proceeding. Under Tennessee Code Annotated § 29-9-106(a)
(2012), “[u]pon an attachment to answer for a contempt, except in not performing a
decree, the officer executing the process shall take bail from the defendant as in other
cases.” Mr. Daugherty reads “other cases” in the statute to include criminal cases, so
according to him, the bail for his alleged contempt would be taken just as it would be in a
criminal case. The fault in his argument is apparent from the statute’s language. The
statute excepts from its scope a contempt such as that allegedly committed by
Mr. Daugherty, the failure to perform a child support decree.



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        I find Mr. Daugherty’s reliance on Tennessee Rule of Criminal Procedure 42(b)(3)
unavailing for much the same reason. The rule applies to criminal contempts, which are
not at issue here.

       Ultimately, the majority accepts Mr. Daugherty’s argument that a cash-only
appearance bond violates his rights under article I, section 15 of the Tennessee
Constitution. The section in question, found in our Constitution’s Declaration of Rights,
provides “[t]hat all prisoners shall be bailable by sufficient sureties, unless for capital
offences, when the proof is evident, or the presumption great.” TENN. CONST. art. I, § 15.

        The initial question is whether article I, section 15 applies to a child support
enforcement proceeding, a civil matter, at all. The majority concludes that the section
“appl[ies] to any action resulting in pretrial imprisonment.” It reasons that limiting the
right to “criminal cases, would ignore the broader liberty interests that this provision
protects, and it would undermine the framers’ intent to have a consistent administration
of bail.”

       I am not convinced that the right recognized by article I, section 15 extends
outside of the context of criminal prosecutions. After all, our supreme court described
section 15 as “grant[ing] a defendant the right to pretrial release on bail pending
adjudication of criminal charges.” State v. Burgins, 464 S.W.3d 298, 304 (Tenn. 2015);
see also Swain v. State, 527 S.W.2d 119, 120 (Tenn. 1975) (“In Tennessee it has for
many years been recognized that the constitutional guarantee of bail exists only for
criminal defendants before conviction.”). But I need not resolve that question because I
do not read article I, section 15 as prohibiting a bail payable only in cash.

        The majority disagrees with this conclusion. Having determined that article I,
section 15 applies to civil as well as criminal proceedings, it holds that “[a]llowing the
court the discretion to require a cash-only appearance bond where a bond with sufficient
sureties is a reasonable option would violate the spirit of Article I, section 15, which is to
limit the court’s discretion in determining who is entitled to pretrial release.”

       As the majority points out, both the Court and the Attorney General have reached
this same conclusion previously. In Lewis Bail Bond Co. v. General Sessions Court of
Madison County, an unreported decision, the Court stated that “if a cash-only deposit was
required of a defendant who had real estate or other sufficient surety, but not cash” it
would “effectively detain the accused” in violation of article I, section 15. No. C-97-62,
1997 WL 711137, at *5 (Tenn. Ct. App. Nov. 12, 1997). Relying in part on Lewis Bail
Bond Co., the Attorney General opined that “[b]y requiring a defendant to post a
particular type of bond, a defendant who has other ‘sufficient sureties,’ but not the
required type, would be denied his or her constitutional right to bail by ‘sufficient
sureties.’” Constitutionality of Proposed Legislation Granting Judges the Authority to

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Order a Cash Deposit Bond in Certain Cases, Tenn. Op. Att’y Gen. No. 03-054 (2003).
Yet, I read article 1, section 15 of our Constitution differently.

        In my view, the operative clause of article 1, section 15 is “all prisoners shall be
bailable.” See Ariana Lindermayer, Note, What the Right Hand Gives: Prohibitive
Interpretations of the State Constitutional Right to Bail, 78 Fordham L. Rev. 267, 277
(2009). As the colonists were gaining independence, “[t]he advent of severe penalties [in
English criminal law] caused pretrial detention to become more frequent and bail to
become more important.” June Carbone, Seeing Through the Emperor’s New Clothes:
Rediscovery of Basic Principles in the Administration of Bail, 34 Syracuse L. Rev. 517,
529 (1983). So “English law took great pains to define who should be let to bail and who
should be detained, and to insure, for the protection of the community as well as the
defendant, that the system was not abused.” Id. The language “all prisoners shall be
bailable” mimics English law in that it serves to “proscribe[] governmental discretion to
deny bail” with a limited exception. Matthew J. Hegreness, America’s Fundamental and
Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 938-39 (2013); see also Fredette v. State,
428 A.2d 395, 402 (Me. 1981) (interpreting the meaning of “except for capital offences,
where the proof is evident or the presumption great” under the Constitution of Maine).
As our supreme court explained, under the section, “except in capital cases, the right to
bail is mandatory.” Wallace v. State, 245 S.W.2d 192, 194 (Tenn. 1952).

       The majority reads the next phrase of the section, “by sufficient sureties,” as
prohibiting a trial court from mandating a specific type of bail, here cash-only bail.
While “surety” at one time meant a third person who bound himself for the obligations of
another, “[i]n America, the [bail] system became purely pecuniary.” Hegreness, supra at
939. A “surety” might refer to “even the ‘money’ itself.” Id. As the United States
Supreme Court observed early in the last century, “[t]he distinction between bail and
suretyship is pretty nearly forgotten.” Leary v. United States, 224 U.S. 567, 575 (1912).

       Like the Supreme Court of Wyoming when called on to interpret a similar
provision in the Wyoming Constitution, I read “by sufficient sureties” as an
acknowledgment that, although bail may be mandatory, the trial court maintains some
discretion in selecting the appropriate amount and type of bail, which “can include cash-
only bail.” Saunders v. Hornecker, 344 P.3d 771, 781 (Wyo. 2015); see also Fragoso v.
Fell, 111 P.3d 1027, 1033 (Ariz. Ct. App. 2005) (“[T]he sufficient sureties clause in
Arizona’s Constitution simply confirms the primary purpose of bail—to ensure a
defendant’s appearance to answer to the charges and submit to any ultimate judgment of
the court.”). Such an interpretation is entirely consistent with the recognized purposes
behind article 1, section 15 of the Tennessee Constitution. By making the right to bail
mandatory, article 1, section 15 “permits the unhampered preparation of a defense, . . .
serves to prevent the infliction of punishment prior to conviction,” Stack v. Boyle, 342
U.S. 1, 4 (1951), and “accommodates the defendant’s interest in pretrial liberty.” Burgin,
464 S.W.3d at 303. By conditioning the bail on “sufficient sureties” as determined by the
                                            4
court, the section protects “society’s interest in assuring the defendant’s presence at trial.”
Donald B. Verrilli, Jr., Note, The Eighth Amendment and the Right to Bail: Historical
Perspectives, 82 Colum. L. Rev. 328, 329-30 (1982) (quoted with approval in Burgin,
464 S.W.3d at 303).

       I acknowledge that a cash-only appearance bond should be a rare occurrence. But
a cash-only bond may be appropriate in some instances. As the State argues, a cash-only
bond gives the parent a clear idea of the risk of failing to appear, “and in the event the
parent does not appear after posting bond, it makes the full bond amount immediately
available for payment toward the support owed.”

        The majority also concludes that a trial court’s discretion to require a cash-only
appearance bond is constrained by the equal protection and due process guarantees of the
United States and Tennessee Constitutions. I would not reach these issues because they
were not raised by Mr. Daugherty in his initial brief. The only constitutional provision
cited by Mr. Daugherty is article I, section 15 of the Tennessee Constitution. He does not
cite to the U.S. Constitution until his reply brief, and even then he only cites to the Fourth
and Fourteenth Amendments. As a result, the State has not had an opportunity to address
the equal protection and due process concerns with cash-only bail noted by the majority.

       Generally speaking, this Court only addresses the issues raised by the parties.
Tenn. R. App. P. 13(b); Hodge v. Craig, 382 S.W.3d 325, 334 (Tenn. 2012). I see no
reason to depart from that practice in this case.




                                                   _________________________________
                                                   W. NEAL MCBRAYER, JUDGE




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