This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




State of Minnesota,



Wesley Brooks,


Filed March 23, 1999


Toussaint, Chief Judge

Scott County District Court

File No. 986188

Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Harbinson, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Government Center, JC 340, 200 Fourth Avenue West, Shakopee, MN 55379 (for respondent)

Samuel A. McCloud, Kelly Vince Griffits, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Anderson, Judge.


TOUSSAINT, Chief Judge

This is an expedited appeal from a pretrial bail order in a prosecution for gross misdemeanor escape from custody. Because we conclude that "cash only" bail does not violate Article 1, Section 7 of the state constitution, we affirm.


Appellant contends that the $6,000 "cash only" bail imposed, and maintained by the district court over appellant's constitutional challenge, violates Article 1, Section 7 of the Minnesota Constitution. We review a constitutional issue under a de novo standard of review. State v. Stallman, 519 N.W.2d 903, 906 (Minn. App. 1994).

Appellant argues that the district court's requirement of "cash only" bail violates the constitutional guarantee that all noncapital offenses shall be bailable "by sufficient sureties." Minn. Const. art. I, § 7. The constitutional bail guarantee states:

All persons before conviction shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.

Id. This provision was adopted from very similar, even identical, provisions of the constitutions of the original states of the Union, particularly Pennsylvania, whose colonial charter has been identified as the source of the phrase "bailable by sufficient sureties." See State v. Pett, 253 Minn. 429, 431, 92 N.W.2d 205, 207 (1958) (tracing language of Article I, Section 7 to constitutions of original states, including Pennsylvania); June Carbone, "Seeing Through the Emperor's New Clothes: Rediscovery of Basic Principles in the Administration of Bail," 34 Syracuse L. Rev. 517, 531 (1983) (tracing phrase "bailable by sufficient sureties" to Pennsylvania colonial charter of 1682).

At the time the state constitution was enacted, the term "surety" was defined as:

One who is bound for another who is primarily liable, and is called the principal. * * * one who undertakes to do some act in the event of the failure of another to do it, and as a security for its being done.

2 Alexander M. Burrill, New Law Dictionary and Glossary, 959 (N.Y. 1850). The bail system as well emphasized the personal responsibility of another for the criminal defendant's appearance at trial, but was gradually evolving toward a "commercial bondsman system" focused on the amount of bail to be posted. See, Limiting Preventive Detention Through Conditional Release: The Unfulfilled Promise of the 1982 Pretrial Services Act, 97 Yale L.J. 320, 324 (1987) (noting gradual evolution in nineteenth century towards "commercial bondsman system"). As early as 1852, the territorial laws provided for bail to be set "in such sum as * * * will secure the appearance of the person charged * * *. Minn. Gen. Stat. ch. 103, § 17 (1859).

A constitutional provision must be broadly and liberally construed in order to provide the flexibility to meet changing conditions. Simms v. Oedekoven, 839 P.2d 381, 385 (Wyo. 1992); see also United States v. Classic, 313 U.S. 299, 316, 61 S. Ct. 1031, 1038 (1941) (noting constitution must be read in light of broad purposes rather than as legislative code subject to constant revision). The practice of bail has evolved from a system dependent on the personal obligation of a surety, and, as the state points out, Minnesota courts have long permitted bail to be posted in the form of cash deposited by the defendant, without the participation of a third party. See, e.g., Miller v. Ginsberg, 134 Minn. 397, 398, 159 N.W. 950-51 (1916) (noting defendant furnished his attorney with money for use as "cash bail").

We recognize that "cash only" bail deprives a defendant of access to the services of a bail bondsman, as a cash bail alternative does not. But we cannot read the term "sufficient sureties," which describes the instrumentality of securing bail, as creating a constitutional right to that form of security. Surely a defendant could not claim that the surety was insufficient, and therefore in violation of Article 1, Section 7. The form of the security, as much as its sufficiency, is for the protection of the court and is not a matter of constitutional right to the defendant.

Appellant cites an Ohio case holding "cash only" bail to be in violation of an identical state constitutional provision guaranteeing bail "by sufficient sureties." State ex rel. Jones v. Hendon, 609 N.E.2d 541, 542 (Ohio 1993). This court is not bound by precedents from other states. State by Ulland v. International Ass'n of Entrepreneurs of America, 527 N.W.2d 133, 136 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995). The decisions reached in other jurisdictions may be followed if persuasive. See Sonenstahl v. L.E.L.S., Inc., 372 N.W.2d 1, 4 (Minn. App. 1985) (noting that federal decisions may be persuasive on issues not addressed by Minnesota courts). We do not find Hendon persuasive.

The Ohio Supreme Court in Hendon acknowledged that the state's constitutional bail clause "is silent as to the forms which bail may take." Id. at 543. The court went on to conclude, however, that because the state's procedural rule on bail provided in effect for a bond as the condition of pretrial release, the court had no legitimate reason to restrict the form of the bond by requiring a "cash only" bond. Id. at 544. The court concluded that this would restrict a defendant's access to a surety, and was thus, under its prior case law, in violation of the constitutional provision. Id. But the prior case Hendon relies on holds only that it is unconstitutional to condition cash bail on the application of the bail money to pay any fines and costs imposed. State ex rel. Baker v. Troutman, 553 N.E.2d 1053, 1055-56 (Ohio 1990). Troutman does not address the constitutionality of cash only bail itself. Id.

We conclude that the phrase "sufficient sureties" in Article 1, Section 7, which is derived from the 1682 Pennsylvania colonial charter and which refers to the common form of bail in the early nineteenth century, cannot be construed as guaranteeing to a defendant a particular form of security. Thus, "cash only" bail is not unconstitutional.