Number 9 October 29, 1980

Number 9 October 29, 1980 Edward V. Keating Clerk-Magistrate for Criminal Business 712 Courthouse Suffolk Superior Court Boston, MA 02108 Dear Mr. Keating: You have asked my opinion whether money which is deposited as bail with the court under General Laws chapter 279, sections 57 and 79, is money which should be deposited in interest-bearing accounts and, if it should be so deposited, whether the interest is payable to the surety or defendant or to the Commonwealth under General Laws chapter 35, sections 22 and 23. You have advised me that cash held by the court as bail is currently deposited in a checking account which bears no interest and that this practice has long been in operation in Suffolk County. You have further advised me that in recent years there has been a large increase in the amount of money which is deposited with your office as bail. This fact, together with the apparent directive in General Laws chapter 35, sections 22 and 23, gives rise to your concern. For the reasons stated below, I conclude that money held by the court as bail should be placed at interest and that this interest must be paid into the state treasury in accordance with the provisions of General Laws chapter 35, sections 22 and 23. While I based my opinion primarily upon the language of sections 22 and 23, as interpreted according to basic maxims of statutory construction, my conclusion is supported by the fact that the admission of a defendant to bail in the Commonwealth is, subject to constitutional strictures,^ wholly governed by statute. The posting of bail by a defendant does not create a relationship of trust between the Commonwealth and the defendant. See Carpenter v. Sujfolk Franklin Savings Bank, 362 Mass. 770, 777 (1973). Hence, no fiduciary duty exists under which the Commonwealth would be required to make prudent investment of a defendant's bail money. The closest analogy is that of a contractual bailment, see, e.g.. Read & Sons, Inc. v. Bay State Auto Springs Mfg., Co., Inc., 48 Mass. App. Dec. 85, 88 (1972), which would, even if apt, create not a fiduciary duty, but only a duty of ordinary care with respect to the moneys paid to the clerk as bail. Fireman's Fund Am. Ins. Co. V. Capt. Fowler's Marina, Inc., 343 F. Supp. 347, 350 (D. Mass., 1971). 'us. Constitution, Amendment VIII; Massachusetts constitution. Part 1, Article XXVI. See. for example. Carlson 342 U.S. 524, 544-46; f;.S. \. Abrahams. 575 F.2d 3 (1st Cir., 1978), cm. den. 439 U.S. 821 (1978). P.D. 12 JJ7 General Laws chapter 35, section 2V directs that various officials, including clerks of the courts, who have "more money in their hands than is required for immediate use, shall deposit it ... at the best practicable interest rates." St. 1978, c. 478, §23, added "and clerks of courts" to the final sentence of section 22, thereby mandating that interest earned on these deposits be paid to the Commonwealth. General Laws chapter 35, section 23, as recently amended by St. 1978. c. 478, §25\ provides that money paid into the court shall, if possible, be placed in interest-bearing accounts by the clerks. Such interest shall be available to the commonwealth "unless the court directs it to be paid to the parties to the litigation in connection with which such money was paid into court." The relevant bail statutes. General Laws chapter 276. sections 57-' and 79.^ both of which provide for cash bail, exhibit no conflict with the requirements of General Laws chapter 35, sections 22 and 23, concerning the disposition of actual cash deposited with the courts. Cash bail, therefore, should be placed in interest-bearing accounts, and the interest earned thereby should go to the Commonwealth, as specified in both sections. In interpreting these statutes, I am guided by several rules of statutory interpretation. First, where the language of a statute is clear and unambiguous, that language must be interpreted according to its "usual and natural meaning." Rosenbloom v. Kikofsky, 373 Mass. 778, 781 (1977); Johnson s Case, 318 Mass. 741, 747 (1945). Section 22 concerns "more money . . . than is required for immediate use . . ." and section 23 concerns "[mjoney paid into the courts." There is no ambiguity in this language and in the absence of any language which limits the application of these two sections to certain money which comes to the various officials, these sections are applicable to money paid to the clerks as bail. G.L. c. 35, §22, in pertinent part, provides: Except as otherwise provided, . . . clerks of the courts . . . having more money in Iheir hands than is required for immediate use, shall deposit it. in their official names, in national banks or trust companies in the commonwealth or banking companies doing business in the commonwealth and qualified to receive demand deposits under the provisions of section six A of chapter one hundred and seventy two A. al the best practicable interest rales Inlcrcsi thereon shall be paid to the county, except that interest accruing lo deposits by . . . clerks of courts shall be paid to the commonwealth; provided, that interest accruing on the deposit as aforesaid of any money paid lo any official mcniioned in this section which is so paid under order of a coun or which is otherwise subject lo the direction of a court shall, if the court so directs, be paid to the panics entitled lo the principal fund of such deposit. ^G.L. c. 35, §23, in pertinent part, provides: Money paid into the courts in any county shall, if possible be placed at interest by the clerks thereof, and the inlcresi shall be available for the uses of the commonwealth unless Ihc court directs it lo be paid to the parties lo the iiligation in connection with which such money was paid into court. All interest in the custody of any clerk of said courts m. directed to be paid as aforesaid, remaining after payment by order of ihe court of ihe pnncipal fund to panics luigani entitled theretoi shall annually be paid to the stale treasurer . . . lo be used for ihc general purposes of the commonwealth •G.L. c. 276, §57, in pertinent part, states: A justice of the supreme judicial or superior court, a clerk of courts or the clerk of the supcnor court for cnmina business in the county of Suffolk ... upon application of a pnsoner or *""=" hf""";^"^' . ,„'^fV,,,„, ,fT such prisoner or witness to bail ... . No person offering himself as surety shall be deemed lo be '"'•"fr'^^' ^ deposits money of an amount equal lo the amount of the bail required of him in ^"^^ "^'^.''!=" 'f^^'^^"'^=! ^,»^,^^ ofVsavings bink, credit union or of a savings accounts in a tnisl company or "''''°;f„*',?^/-,^Y ''.•'j;'^;;^ '"J^'^^ shares of a cooperative bank doing business in the commonwealth, properly assigned lo the clerk with whom the same s^is to li^Sed or deposits non-regislered bonds of the United Stales or of ihe commonwealth or of «^y counti, dty or t^n wilhin the commonwealth equal at their face value to Ihe amount of the bail required of him in such recognizance .... ^G.L. c. 276, §79. in pertinent part, states: the clerk of the court. 118 P.D. 12 Another principle of statutory construction provides that the legislature acts with full knowledge of the effect statutory enactments will have on pre-existing laws. Lynch v. Commissioner of Education, 317 Mass. 73, 79 (1945). General Laws chapter 35, sections 22 and 23, were recently amended in 1978 by the Court Reform Act, which brought these provisions into conformity with the general takeover of the court system by the Commonwealth. St. 1978, c. 478, §§23 and 25. Amendments to statutes should be construed as a continuation of those portions of the statute which remain unchanged. Worcester County National Bank v. Commissioner of Corporations and Taxation, 275 Mass. 216, 218 (1931). Furthermore, the legislature is presumed to be aware of existing situations at the time of an amendment. Flanagan v. Lowell, 356 Mass. 18, 21 (1969). I must presume that the legislature was aware that the courts in 1978 were increasingly utilizing cash bail for which clerks of court, as officials listed in sections 22 and 23 of chapter 35, were responsible. I must also presume, therefore, that the legislature knew of the impact of the amendments of G.L. c. 35, §§22 and 23, upon the payment of cash bail to the clerks of the courts of the Commonwealth. Until such time as the legislature further considers this matter and indicates more specifically the disposition of moneys held by clerks of court as bail, I am compelled to follow the rules of statutory construction set out above and to conclude that clerks should place money deposited as bail at interest at the best practicable rates. This interest must be deposited into the General Fund unless the court orders the payment of interest to the surety or the defendant. Very truly yours, FRANCIS X. BELLOTTl Attorney General