COMMONWEALTH OF KENTUCKY EX REL. RANDA PUTNAM v. MATTHEW POLSTON, EXECUTOR OF THE JAMES E. POLSTON ESTATE

Lexington, KY - Criminal defense attorney represented James D. Polston with seeking the release of a $5,000 cash bond.

On February 19, 2013, James D. Polston (Doug) was arrested for

contempt of court for his failure to pay child support owed to Randa Putnam. His

father, James E. Polston (James), posted a $5,000 cash bond for Doug's release

from jail. Doug appeared in the Lyon Circuit Court for a hearing on May 4, 2013.

The circuit court retained the cash bond.

Doug passed away on November 25, 2014. Filed in the court record

on February 3, 2015, was a letter James had written informing the Lyon County

Attorney that Doug had passed away. In the letter, James sought the release of the

$5,000 cash bond. Shortly thereafter, on February 24, 2015, the Commonwealth

filed a notice of review that was mailed to Doug at James' home address. In the

notice, it stated that the case would be "brought on for a review of [Doug's] child

support obligation and bond monies being held, on Monday, April 6, 2015.”

On April 6, 2015, James appeared in court and sought release of the

$5,000 cash bond he had posted, in light of Doug's death. The Commonwealth

argued that the bond should be released to the child support office for Doug's child

support; thereupon, the Commonwealth would "close the case.” The circuit court

informed the parties that it would review an order tendered by the Commonwealth.

The court also informed James that he had done what was necessary to perfect a

request for the refund of the cash bond.

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By order entered April 9, 2015, the circuit court directed "the Lyon

Circuit Clerk [to] pay the bond in the amount of $5,000.00 to the Lyon County

Child Support Office to apply to [Doug's] child support obligation.” In accordance

with the April 9, 2015, order, the $5,000 was dispersed to the custodial parent on

May 6, 2015.

Five days later, on May 11, James filed a Motion of Surety to

Intervene and Verified Motion of Surety for Return of Appearance Bond. Therein,

James stated that Doug passed away on November 25, 2014, and following his

death, the $5,000 bond was ordered forfeited by the court on April 9, 2015. James

argued that such forfeiture was improper as the Commonwealth did not file a

motion for bond forfeiture and James was denied due process. James maintained

that due process required that he receive a notice of forfeiture and the court was

required to conduct an evidentiary hearing. The Commonwealth responded and

argued that the bond was properly forfeited and applied to Doug's child support

obligation.

By order entered October 7, 2015, the circuit court vacated its April 9,

2015, order and directed the Commonwealth to "pay James . . . the previously

posted $5,000.00 cash bond.” October 7, 2015, order at 3. In so doing, the circuit

court cited to Kentucky Revised Statutes (KRS) 431.545, Kentucky Rules of

Criminal Procedure (RCr) 4.48, and RCr 4.52. The circuit court concluded that

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James was entitled to notice of bail forfeiture and an opportunity to be heard. The

circuit court determined that it "did not give James . . . the due process to which he

was entitled.” October 7, 2015, order at 2.

The Commonwealth then filed a response on December 17, 2015. In

the response, the Commonwealth stated that the $5,000 was disbursed to the

custodial parent on May 6, 2015. Additionally, the Commonwealth cited the

Kentucky Child Support Enforcement Office in Frankfort as advising "it is

impossible to refund the money that is no longer in the Commonwealth's

possession.” Commonwealth's Response at 1.

Although it is unclear in the record as to why, the case was continued

generally by order entered February 2, 2016. After a thirteen-month period of no

activity, James filed a motion for a money judgment against the Commonwealth on

March 17, 2017. The court conducted a hearing on April 3, 2017. By

supplemental order and judgment entered April 7, 2017, the circuit court rendered

a judgment in favor of James in the amount of $5,000 against the Commonwealth,

by and through the Cabinet for Health and Family Services. The court noted:

The Commonwealth as Petitioner takes the position

that compliance with that Order is an impossibility. The

forfeited bond was in fact paid for the decedent James D.

Polston's child support obligation for his child,

Intervenor's grandchild. Intervenor took no action after

the October 7, 2015, Order, until filing the present

Motion on March 17, 2017, approximately seventeen

months delay. Intervenor's counsel represented to the

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Court that he had made efforts to enforce collection in

that interim, all of which were unsuccessful.

Supplemental Order and Judgment at 1.

The Commonwealth filed a timely notice of appeal, and the Court of

Appeals rendered an Opinion and Order dismissing in Commonwealth ex rel.

Putnam v. Polston, No. 2017-CA-000738-MR, 2018 WL 4049234 (Ky. App. Aug.

24, 2018). Therein, the Court of Appeals held that the April 7, 2017, supplemental

order and judgment was void because the circuit court failed to revive the action

and, instead, rendered judgment in favor of James, who was now also deceased.

The Court of Appeals also determined that it lacked jurisdiction as an

indispensable party was not named in the notice of appeal – the Estate.

The circuit court then entered a new order on November 29, 2018. In

this order, the circuit court granted the Estate's motion to revive the action and

rendered judgment in favor of the Estate in the amount of $5,000 against the

Commonwealth, by and through the Cabinet for Health and Family Services,

Division of Child Support. The circuit court also incorporated the April 7, 2017,

supplemental order and judgment "[i]n all other respects.” This appeal follows.

The Commonwealth first contends that the doctrine of sovereign

immunity bars the monetary judgment in the amount of $5,000. The

Commonwealth argues that sovereign immunity prohibits monetary claims against

the state in the absence of its consent.

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It is well-established that sovereign immunity operates to bar

monetary claims against the state absent a waiver thereof. Commonwealth v. Ky.

Ret. Sys., 396 S.W.3d 833, 836-37 (Ky. 2013). Through enactment of KRS

45A.245, the Commonwealth has expressly waived immunity as to any claim

based upon a written contract. Univ. of Louisville v. Rothstein, 532 S.W.3d 644,

647 (Ky. 2017). And, a bail bond is considered a written contract involving the

Commonwealth, a defendant, and a surety. RCr 4.00(a); Miller v. Commonwealth,

234 S.W. 307 (Ky. 1921); see also Passmore v. Commonwealth, 580 S.W.3d 558,

564-65 (Ky. App. 2019).

1

As the Estate's claim sounds in contract, we are of the

opinion that the Commonwealth is not imbued with immunity against the claim nor

is the $5,000 monetary judgment barred by immunity.

The Commonwealth also argues that James "was properly noticed and

before the Court at its April [6], 2015[,] hearing.” Commonwealth's Brief at 9.

The Commonwealth further maintains that James "had a full and fair opportunity

to present his case against bond forfeiture” at that hearing. Commonwealth's Brief

at 9. Thus, the Commonwealth asserts that the Estate is not entitled to set aside the

April 9, 2015, forfeiture order.



1 The Kentucky Supreme Court discussed the concept that a bail bond is subject to the

constraints of contract law in the unpublished and nonbinding opinion of Hospital of Louisa v

Johnson County Fiscal Court, No. 2009-SC-000280-DG, 2011 WL 1103054, at *5 (Ky. Mar. 24,

2011).

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RCr 4.42 reads:

(1) If at any time following the release of the defendant

and before the defendant is required to appear for trial the

court is advised of a material change in the defendant's

circumstances or that the defendant has not complied

with all conditions imposed upon his or her release, the

court having jurisdiction may order the defendant's arrest

and require the defendant or the defendant's surety or

sureties to appear and show cause why the bail bond

should not be forfeited or the conditions of release be

changed, or both.

(2) A copy of said order shall be served on the defendant

and the defendant's surety or sureties. The court shall

order the arrest of the defendant only when it has good

cause to believe the defendant will not appear voluntarily

upon notice to appear.

(3) Where the court is acting on advice that the defendant

has not complied with all conditions imposed upon his or

her release, the court shall not change the conditions of

release or order forfeiture of the bail bond unless it finds

by clear and convincing evidence that the defendant has

[willfully] violated one of the conditions of his or her

release or that there is a substantial risk of

nonappearance.

(4) Where the court is acting on advice of a material

change in the defendant's circumstances, it shall not

change the conditions of release or order forfeiture of the

bail bonds unless it finds by clear and convincing

evidence that a material change in circumstances exists

and that there is a substantial risk of nonappearance.

(5) Before the court may make the findings required for

change of conditions or forfeiture of bail under this rule,

the defendant and the defendant's surety or sureties shall

be granted an adversary hearing comporting with the

requirements of due process. Whenever the court

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changes conditions of release (except upon motion of the

defendant) or orders forfeiture of bail, it must furnish the

defendant and the defendant's surety or sureties with

written reasons for so doing.

Under RCr 4.42, both the defendant and the defendant's surety are

entitled to notice of a bond's forfeiture. Before a forfeiture can occur, RCr 4.42

also mandates that the court find by clear and convincing evidence that defendant

violated a condition of his release or that a material change in circumstances exists

and there is a substantial risk of nonappearance. And, the court must conduct a

hearing "comporting” with due process and render written findings outlining the

reasons for forfeiture per RCr 4.42.

From the record, it is manifestly clear that the mandates of RCr 4.42

were not complied with by the Commonwealth or by the circuit court as concerns

the April 2015 hearing. While the Commonwealth mailed a notice of review to

Doug in February 2015, it did not mail such notice to James. The notice made no

reference to a bond forfeiture hearing. Nevertheless, James apparently received the

notice of review and attended the April 6, 2015, hearing, albeit without counsel.

The notice of review, however, was deficient under RCr 4.42. It simply stated that

the case would be brought for review of Doug's child support obligation and bond

monies. The notice of review never informed James that the hearing was for

forfeiture of the bond.

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Following the April 6, 2015, hearing, the circuit court rendered a onesentence order – "the Lyon Circuit Clerk will pay the bond in the amount of

$5,000.00 to the Lyon County Child Support Office to apply to [Doug's] child

support obligation.” As evident from the order, the court failed to render written

findings to support its bond forfeiture, thereby violating RCr 4.42. Consequently,

we conclude that the circuit court and the Commonwealth failed to comply with

the mandates of RCr 4.42 as concerns the April 9, 2015, order.

The Commonwealth further asserts that compliance with the

November 29, 2018, order is "impossible.” The Commonwealth notes that the

$5,000 was paid to the custodial parent, and such funds were no longer in the

possession of the Commonwealth. The Commonwealth states that it is unable to

recoup the funds once payment is made to the custodial parent.

In its November 29, 2018, order, the circuit court granted a judgment

in favor of the Estate against the Commonwealth in the amount of $5,000. The

court did not order the Commonwealth to recoup the $5,000 paid to the custodial

parent. Rather, the court entered a final judgment for $5,000 against the

Commonwealth. Based on our review of the record and applicable law, we

conclude it is not impossible for the Commonwealth to pay the judgment. Given

that the Commonwealth created the problem by not moving for a bond forfeiture

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hearing in accordance with RCr 4.42, both fairness and equity support the circuit

court's judgment in this case.

For the foregoing reasons, the November 29, 2018, Order of the Lyon

Circuit Court is affirmed.