2016 UT 5

IN THE

SUPREME COURT OF THE STATE OF UTAH

THE ROYAL CONSULATE OF THE KINGDOM OF SAUDIA ARABIA,

Petitioner,

v.

THE HONORABLE DEREK PULLAN,

Respondent.

No. 20150643

Filed January 15, 2016

Attorneys:

Ronald J. Yengich, Salt Lake City, for petitioner

Brent M. Johnson, Salt Lake City, for respondents

PER CURIAM:

¶ 1 Monsour Al Shammari, who is a citizen of Saudia Arabia,

was arrested and charged with rape. Bail was set at $100,000, and

the Royal Consulate of Saudia Arabia provided the cash funds to

post bail. Shortly thereafter, Mr. Al Shammari attempted to cross the

border into Tijuana, Mexico and was detained by the United States

Customs and Border Patrol. When he failed to appear for a

scheduled hearing in the criminal case, the district court ordered the

cash bail forfeited without providing notice to the Consulate. Mr. Al

Shammari was extradited to Utah, and he moved to set aside the

order of forfeiture. Among the arguments he presented in his

motion, he asserted the forfeiture was procedurally deficient because

the Consulate, as a “surety,” was entitled to notice. The district

court determined that his failure to appear was willful and that the

Consulate was not entitled to notice because it was not a surety for

purposes of Chapters 20 and 20b of Title 77 of the Utah Code. It

ordered the bail forfeited.

¶ 2 The Consulate has filed a petition for extraordinary relief

with this Court challenging the district court’s determination that it

was not a surety and was not entitled to notice. It also contests the

correctness of the district court’s conclusions that Al Shammari’s

failure to appear was willful and that forfeiture of bail was
ROYAL CONSULATE OF SAUDI ARABIA

v. HON. PULLEN

Opinion of the Court

appropriate. We conclude the Consulate was not a surety that was

statutorily or constitutionally entitled to notice, and we decline to

reach its arguments regarding the merits of the forfeiture ruling

because it lacks standing. Accordingly, we deny its petition for

extraordinary relief.

¶ 3 Section 77-20-4 of the Utah Code designates five

mechanisms for posting bail, only one of which involves a “written

undertaking with . . . suret[y].” UTAH CODE § 77-20-4(1)(b).1

 Section

77-20-5 then describes the two types of sureties who may provide a

written undertaking: (1) a for-profit bail business; or (2) an

individual or entity that is not in that business and who must be a

real or personal property holder with a “net worth of at least twice

the amount of the undertaking, exclusive of property exempt from

execution.” Id. § 77-20-5(1). Chapter 20b of Title 77 separately

provides that a “surety be given notice of [a] nonappearance” of the

defendant, id.§ 77-20b-101(1), and that it be provided a period of six

months to produce the defendant before a forfeiture action is

commenced on the bond provided by the surety, see id. § 77-20b-102.

¶ 4 In other words, the statutory scheme recognizes two

different forms of guarantee of a defendant’s appearance: (1) an

undertaking tendered by an individual or entity that ordinarily will

be accompanied by the posting of a bond; and (2) bail by cash or an

equivalent form of payment. In the case of written undertakings by

sureties, those sureties assume distinct obligations to ensure

defendants’ appearances and are afforded corresponding

opportunities to satisfy their obligations prior to forfeiture hearings. 

Sureties also submit themselves to the “jurisdiction of the court and

irrevocably appoint[ ] the clerk of the court as [their] agent upon

whom any papers affecting [their] liability on the undertaking may

be served.” Id. § 77-20-5(3).

¶ 5 Conversely, when the full amount of bail is satisfied by

funds deposited with the court, defendants’ appearances are secured

directly by those funds, with no independent obligations imposed

on any third persons or entities who happen to provide the funds. 

The statutory scheme for bail does not concern itself with the

1

 The others describe various means of making a direct payment

of the full amount of bail—cash, credit card, and debit card—but

also allow for the possibility of a “written undertaking . . . without

suret[y].” UTAH CODE § 77-20-4(1)(a)–(c).

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Opinion of the Court

manner in which the defendant obtains the funds for cash bail or the

nature of the relationship between the defendant and another

provider, if any, of the funds. The person posting the cash bail may

be merely functioning as a courier for the defendant’s own funds,

may be providing the funds out of friendship or familial loyalty, or

may have extracted some agreement that may or may not be legally

enforceable as a private contract.2 In that light, the absence of a

process for verifying the identity of the owner of the cash

necessitates an assumption that cash bail is the property of the

defendant or is provided on his behalf through a private agreement,

and the court has no obligation to investigate the nature of that

agreement or the identity of the parties to it. Nor does it possess any

practical mechanisms for doing so.

¶ 6 This statutory scheme appears to be consistent with the

historical distinction between cash bail and a surety’s bond that has

been described in decisions in other jurisdictions. See, e.g., State v.

Paul, 976 P.2d 1272, 1274 (Wash. Ct. App. 1999); State v. Echols, 850

S.W.2d 344, 345–47 (Mo. 1993); People v. Castro, 464 N.Y.S.2d 650, 654-

55 (Sup. Ct. 1983). Those decisions have observed that the common

law deemed a surety to be personally liable for guaranteeing the

appearance of the defendant. See Castro, 464 N.Y.S.2d at 655. 

Payment of a financial penalty eventually was substituted for the

harsher consequence of incarceration of the surety in the event of

forfeiture, and modern regulations pertaining to sureties incorporate

and perpetuate that process and its premises. See id. By contrast, the

2

 In re Marriage of Bralley, 855 P.2d 1174, 1178 (Wash. Ct. App.

1993), provided an interesting illustration of the possibilities:

X, being in jail on a bench warrant, and desiring

$1000 for cash bail may call Y and ask Y to (1)

retrieve X’s $1000 from a mayonnaise jar buried

in X’s backyard; (2) contact Z and borrow $1000

from Z; (3) loan X $1000 of Y’s money; (4) repay

a $1000 loan that Y may owe to X; (5) make a gift

to X of $1000 or the use of $1000 pending X’s

completion of his obligation to the court; (6) sell

X’s personal property for $1000. In any of these

and a myriad of other possible circumstances, Y

may bring $1000 to the jail and obtain a receipt in

her name. The receipt merely shows that money

was received . . . ; it does not evidence whose

“property” the bail money is.

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ROYAL CONSULATE OF SAUDI ARABIA

v. HON. PULLEN

Opinion of the Court

same decisions note that the posting of cash to ensure a defendant’s

appearance is a more recent statutory mechanism that functions as

an impersonal tangible substitute for the requirement of a personal

guaranty.3 See id. 

¶ 7 In this case the Consulate posted cash bail, and it has failed

to demonstrate that it qualifies as a surety under the applicable

statutes. The Consulate is not a for-profit bail business, and it failed

to satisfy the formal statutory requirements for establishing status as

a surety by “justify[ing] by affidavit upon [an] undertaking”

regarding its property and net worth, as required by section 77-20-

5(2) and by expressly submitting itself to the jurisdiction of the court

under section 77-20-5(3). Accordingly, it did not act as a surety and

was not entitled to notice under the statutory scheme.

¶ 8 For similar reasons, the Consulate’s constitutional

arguments also fail. The statutory notice requirements coincide with

a scheme that comprehensively regulates the process by which a

person or entity obtains recognition as a surety and by which that

surety undertakes obligations in relation to the defendant’s

appearance.4

 Conversely, any obligations arising from the provision

of the funds for cash bail are private in nature, between the provider

and the defendant, and not between the provider and the court. 

And the absence of any duty to inquire into the true source of funds

provided as cash bail necessarily obviates any obligation for the

3 State v. Echols summarized the difference as follows:

By observing the distinction between a surety

bond and a cash bond, the basis for the differences . . . related to the two forms of bail become

rational. The depositor of bail money has no

obligation for the custody or appearance of the

defendant. The money deposited is the security

for the appearance of the defendant. This is not

to say that one who posts cash bail for another

cannot cause the defendant to surrender . . . . 

However, the law places no duties or obligation

on one who posts a cash bail for another for the

appearance of the defendant when required.

850 S.W.2d at 347.

4 We need not address the question of whether sureties possess an

independent due process entitlement to notice.

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Opinion of the Court

court to provide notice of events occurring in the case after bail has

been deposited. Accordingly, the Consulate has failed to

demonstrate that it possessed a due process entitlement to notice of

the circumstances that led to the forfeiture of the cash bail in this

case.

¶ 9 Finally, we decline to address the Consulate’s arguments

that the district court erred in determining the factual prerequisites

for forfeiture had been satisfied. Because the Consulate is not a

party to the criminal proceedings and lacked any statutory or

constitutional entitlement to notice of Mr. Al Shammari’s failure to

appear, it likewise lacked standing to challenge the district court’s

forfeiture ruling.

5