# FILED
September 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 01C01-9710-CR-00462 Appellee ) ) DAVIDSON COUNTY vs. ) ) Hon. Seth Norman, Judge AAA AAR ON'S ACTION ) AGENCY BAIL BONDS, INC. ) ) ( En Banc Order) Appellant )
For the Appellant : For the Appellee : Thomas L. Whiteside John Knox Walkup Fowlkes & Whiteside Attorney General and Repor ter 172 Second Avenue North Suite 214 Timothy F. B ehan Nashville, TN 37201-1908 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. (Torry

) Johnson III District Attorney General Steve Dozier Asst. District Attor

ney General Washington Square, STE 500 222-2nd Avenue N Nashville, TN 37201-1649

OPINION FILED:
REMANDED
David G. Hay

es Judge1 This court has j urisdict ion over t his proceedi ng pursuant to Tenn. Code Ann. § 40-11- 125(d) (1997). 2 OPINION
AAA Aaron’s Action Agency Bail Bonds, Inc., (AAA), appeals from the en banc order of the Davidson Count y Criminal Court s uspending AAA’s authority to write bail b onds in Da vidson Cou nty. 1 AAA raises two issues for our re view. I. “Whether the trial court’s summary suspension of appellant as a bondsman deprived appellant of a con stitutionally protect ed property interest;” and II. “Whether the failure to provide appel lant with notice and an opportunity to be heard w hen the trial court summaril y suspended appellant was an abuse of disc retion.” Although we find the trial court’s en banc order sufficient to temporarily suspend AAA’s authority t o write bail bonds, w

e conclude that the notice prov ided therein is constitutionally inadequate to satisfy due process concerns. Moreover, because AAA prematurely filed its notice of appeal to this cou rt, the trial court w as prevented from providing AAA with a hearing on the matter. In the interest of justice and fairness, the order of the tri al court is upheld only to the extent of suspending AAA’s authority to write bail bonds. However, in all other respects, this cause is remanded to the Criminal Cour t of Davidson County to pe rmit that court to amend its order to provide sufficient notice to AAA of the specific gr ounds supporting the court’s action. If such noti ce is sufficient and AAA responds within twenty da ys, the trial court shall conduc

t a hearing within a reasonable time of AAA’s response.

Analysis
It is without dispute that the trial courts of this state have the full authorit y to determine who should be all owed to make bonds in its c ourt and to regulate professional bondsmen. Gilbreath v. Fergus on , 195 Tenn. 528, 260 S.W.2d 2762 In support of its position, the State asse rts that the court’ s subsequent orders of August 18 and September 26 did i n fact provi de adequate noti ce of the trial cour t’s reasons for suspending AAA’s pr ivil eges to writ e bail bond s in Davidson Count y and were but

a continuat ion of the M ay 2 order

. 3 (1953); Hull v. State , 543 S.W .2d 611, 612 (Ten n. Crim. A pp. 1976 ). Specif ically, Tenn. Code Ann. § 40-11-125(a) pr ovides the trial cour

ts with the authority , after investigation, to sus pend a professional bondsman or other surety from making bonds if such bondsman or other surety violates any of the laws relating to bail bonds, or if he is guilty

of professional misconduct as defined i n Tenn. Code Ann. § 40-11-126 (1997). See also State v. Hodgson , C.C.A. No . 87-142-III (Tenn. Crim

. App. at Nashville, Feb.24, 1988), perm. to appeal denied , (Tenn. May 31, 1988).
If a trial court suspends a bond sman from making bonds, the bondsman has a right to receive notice of the action taken and a copy of the charges that brought about the suspension. Tenn. Code Ann. § 40 -11-125(b). If the bondsman files a written answer within twenty days of the notice denying such charges, the trial court shall call a hearing within a reasonable time for the purpose of taking testimony and evidence on any issues of facts made by the charges and an swer. Tenn. Code Ann. § 40-11-125(b).
In the present case, on May 2, 1997, an en banc

panel of the Davidson County Criminal Cour

t entered an order which provided that “[a]s the r esult of the actions of the AAA AARON’S ACTIO N AGENCY BAIL BONDS, INC. . . . on Wednesday, April 23, 1997, the company is hereby denied the right to further write bail bonds in the Criminal Courts of Davidson County.” In accordance with Tenn. Code Ann. § 40-11-125(b), AAA fil ed a written answer denying any alleg ed wrongdoing in res ponse to the court’s order, on May 14, 1997, twelv e days after receiving notice. Sixteen days later, on May 30, 1997, AAA filed a noti ce of appeal to this court complaining that no hearing had been held. 24 The issue before this court is not the propriety of AAA’s practices as a bail bondsman or the merit of the trial court’s order; rather, the conce rns before this court are the procedural r equirements for suspending a bail bondsman’s authority to write bail bonds.

A. Due Process The Due Process Clause of the Four teenth Amendment and Article I, Sect ion 8 of the Tennessee Constitution embody similar procedural pr

otections and guarantees. Doe v. Norris , 751 S.W.2d 834, 838 (Tenn. 1988); State ex rel. Anglin v. Mitchell , 596 S.W.2d 779, 786 (Tenn. 1980); Daugherty v. State , 216 Tenn. 666, 674, 393 S.W.2d 739, 743 (1965), cert. denied , 384 U.S. 435, 86 S.Ct. 1601 (1966 ). They prevent the gov ernment from infringing upon si gnificant property or liberty interests without firs

t providing notice an d an opportunity to be heard at a meaningful time and in a meaning manner

. Cleveland Bd. of Educ. v Loudermill , 470 U.S. 532, 542, 105 S.Ct. 1487, 1493 (1985); Cooper v. Williamson County Bd. of Educ. , 803 S.W.2d 200, 202 (Tenn. 1990), cert. denied , 500 U.S. 916, 111 S.Ct. 2013 (1991). However, before such procedural safeguar ds are required, sev

eral factors must be established.

1. Protected Interest First, a constitutional ly protected liberty or property interest

must be possessed by the party allegedly aggr ieved. Board of Regents o f State Colleges v. Roth , 408 U.S. 564, 569-78, 92 S.Ct. 2701, 2705-06, 2709 (1972). The rig ht to engage in a chosen business, occupation, or profession without unrea sonable governmental interference or deprivation thereof is both a liberty and proper ty interest, protected by the due process clauses of the Fifth and Fourteenth Amendments to the United States Cons titution and Article I Sec tion 8 of the Tennessee Constitution. See Cleveland Bd. of Educ. v. Loudermill , 470 U.S. at 543, 105 S.Ct. at 1494; see also Livesay v. Tennessee Board of Examiners in5

Watchmaking , 204 Tenn. 500, 322 S.W.2d 209 (1959). Harbison v., Knoxv ille Iron Company , 103 Tenn. 421, 53 S.W. 955 (1899), aff’d by , 183 U.S. 13, 22 S.Ct. 1 (1901). Although the bail bond business is closely related to the criminal justice system requiring strict regulation by the government, it is still a business and once the court grants the ri ght to engage in such bus iness, the right to purs ue that business becomes a right. Thus, we conclude that the depr ivation of one’s right to engage in the bail bond busi ness is a judicial act that must meet the requirements o f due process of law. Validity, Construction, and Application of Statutes R egulating Bail Bond Business , 13 A.L.R.3 D 618, 638 (1967 & 1997 Supp.); see, e.g. , In re Greene , 130 A.2d 593 (Mun.Ct.App. D.C . 1957); State v. Parrish , 254 N.C. 301, 118 S.E.2d 786 (1961); Smith v. Decker , 312 S.W.2d 632 (Tex. 1958); State ex rel. Weaver v. Dostert , 300 S.E.2d 102 (W.Va. 1983). But cf. , Taylor v. Waddey , 206 Tenn. 497, 3 34 S.W. 2d 733, 735 (19 60) (quoting In re Carter , 192 F.2d 15, 18 (D.C. Cir.), cert. denied , 342 U.S. 862, 72 S.Ct. 89 (1951) (Prettyman, J., dissenting)).
Additionally, there mus t be a deprivation of that inte rest by the govern ment. See Rowe v. Board of Ed uc. of City of Cha ttanooga , 938 S.W.2d 351, 354 (Tenn. 1996), cert. denied , -- U.S. --, 117 S.Ct . 1271 (1997) (citation omit ted). The Criminal Court of Davidson County suspended AAA’s right to write bail bonds, thus,depriving AAA of its right to engag e in business and earn a liv elihood.
Once it is determined that due p rocess applies, the inter ests of AAA and the government must be weig hed to determine what process is due and whether deprivation has occurr

ed. Federal Deposit Ins. Cor p. v. Mallen , 486 U.S. 230, 240, 108 S.Ct. 1780, 1787 (1988); Board of Regents of State Colleg es v. Roth , 408 U.S. at 569-570, 92 S.Ct. at 2705. In det ermining what process

is due, we are mindful that the constitutional guar anties are flexible standar ds based upon the concept of fairness and reasonableness. 16C C.J.S. Constitutional Law § 967 (1985).6 2. Notice Due process requires “notice reasonably cal culated under all the circumstances, to apprise interested parties” of the cl aims of the opposing parties. McClellan v. Board of Regents of State Universi ty , 921 S.W.2d 684, 688 (Tenn. 1996) (citing Mullane v. Central H anover Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950)). The pur pose of due process requirements is to notify the individual in advanc

e in order to allow adeq uate preparation and reduce sur prise. Id . (citing Memphis

Light, Gas and Wate r Divi sion v.Craft , 436 U.S. 1, 14, 98 S.Ct. 1554, 1562-63 (1978)). In other words, the contents of the noti ce cannot be ambiguous or obscure; they must clearly inform the per son of the nature of the charge against him. See Turk v. Franklin Speci al School Dist. , 640 S.W.2d 218, 220 (Tenn. 1982). To comport with these notions of fair play, the means employed should equal or exceed that which one desirous of act ually informing the opposi te party would employ

. Id . (citations omitted). Under these standards, the trial court’s May 2 order suspending AAA from writing bail

bonds “as the result of the acti ons of [AAA] on Wednesda y, April 23, 1997" cannot be held sufficient to ade quately apprise AAA of the charges to be met. Thus, notice was constitutionally inadequate

.

3. Opportunity to be Heard In addition to guaranteeing a person with notice, du e process provides an opportunity to be heard. The opportunity to present reasons, eith er in person or in writing, why a proposed action should not be taken is a fundamental due process requirement. Cleveland Bd. of Educ. v. Loudermill , 470 U.S. at 546, 105 S.Ct. at 1495 (citation omitted). However, procedural due process does not necessarily require a prior heari ng in every inst ance. Federal Deposit Ins. Cor p. v. Mallen , 486 U.S. at 240, 108 S.Ct. at 1788; State ex rel. Hayes v. Civil Serv ice Com’n of Metropolitan Government of N ashville and David son County , No. 01-A-01-9002- CH00061 (Tenn. App. at Nashvi lle, Oct. 31, 1990), perm. to appeal denied , (Tenn. May 26, 1992).7 The Due Process Clause req uires the provision of a h earing “at a meaningful time.” Cleveland Bd. of Educ. v. Loudermill , 470 U.S. at 547, 105 S.Ct. at 1496. A post-decision hearing w ill suffice as long as it is held within a reas onable time in light of the issues and interests at s take. Id . (citations omitted). Al though a post-decision hearing is often sufficient, the pr omptness in which one is held is of constitutional
concern. Civil Servic

e Com’n of Metropolitan Gover nment of Nashville and Davidson County , No. 01-A-01-90 02-CH00061 (cit ing Brock v. Roadway Express, Inc. , 481 U.S. 252, 267, 107 S.Ct. 1740, 1750 (1987); Cleveland Bd. of Ed uc. v. Loudermill , 470 U.S. at 547, 105 S.Ct. at 1496 ; Barry v. Barchi , 433 U.S. at 66, 99 S.Ct. at 2650). Even though there is a point at which an unjustified delay in completing a post-depriv ation proceeding would become a constitutional vi olation, the significance of such a delay cannot be evaluated in a v acuum. Federal Deposit Ins. Corp. v. Mallen , 486 U.S. at 242, 108 S.Ct. at 1788 . No precise rules ex ist to determine whether a delay in holding a hearing r

ises to the level of a constitutional problem. Rather, the importance of the private interest and the harm to this interest occasioned by the delay;the government’s inter est and its reason for the delay ; and the likelihood that the pre- hearing decision is er roneous are examined and w eighed against each other. Federal Deposit Ins. Cor p. v. Mallen , 486 U.S. at 242, 108 S.Ct. at 1788.
In the present case, our determination of whether the trial cou rt’s delay in providing AAA with a he aring is unreason able is skewed by AAA ’s action of f iling a notice of appeal to this court s ixteen days after its a nswer to the Criminal Court was filed. By AAA’s filing

of a notice of appeal, the trial cou rt was divested of jur isdiction over the matter and was, therefore, without the author ity to hold a post-deci sion hearing. See State v.Pendergrass , 937 S.W.2d 834, 837 (Tenn. 1996); State v. Applegate , No. 01C01-9608-CR-00370 ( Tenn. Crim. App. at Nashvi lle, Mar. 17, 1998), reh’g denied , (Apr. 16, 1998). Thus, the trial court’s August 18,1997 order, as it relates to the present matter, supranote 2, is void as it w as beyond the8

jurisdiction of the court. Pendergrass , 937 S.W.2d at 837. From another perspective, AAA’s appeal was filed prematurely

as it had not exhausted all first tier review proce dures. In effect , AAA’s ac tion of f iling a not ice of ap peal sixte en days after it filed its response to the court’s May 2 order can only challenge the reasonableness of the sixteen d ay delay between the fil ing of a response and the notice of appeal.

Because no evide nce has been pr esented from which this court can weigh the interests involv

ed, we cannot conduct a thoroug h balancing of the competing interests. Howev

er, we remain cogniz

ant of the fact that, “inherent in any bureaucracy, . . . is a certain amount of inefficiency and delay, and the mere allegation of delay without an explanation of why the delay is unreasonable does not support a claim for due process.” Slugocki v. Unit ed States by and through D ept. of Labor , 988 F. Supp. 1443, 1447 (S.D. F la. 1997). Accordingly, even though AAA was denied its source of livelih ood, we ca nnot con clude tha t sixteen d ays constitu ted an un reasona ble delay.

Conclusion

The en banc

order of May 2, suspending AAA’s authority to write bail bonds in the Criminal Courts of Davidson County, remains in effect. This case is remanded to the Criminal Cour t with instructions

to amend, with particular ity, the grounds upon which it relies in suspending AA A’s authority to w rite bonds. As statutorily provided, if AAA files a written answer within twenty days of the notice denying such charges , the trial court shall call a hearing wi

thin a reasonable time for the purpose of taking testimony and evidence on any iss ues of facts made by the charges and answer. Tenn.Code Ann. § 40-11-125(b).9 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

___________________________________ PAUL G. SUMMERS, Ju dge

___________________________________ JERRY L. SMITH, Judge