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Show e TUESDAY, AUGUST-15jitr- THE DAILY RECORD ' -I- PAGE - t i Office of the Attorney General OPINION NO. 72-0- 32 Lieutenant BY: V. R. Weber County Jail, Jail Commander of the 77-4- Ogden, Utah Vernon B. Romney, Attorney General David S. Young, Chief Assistant Attorney General BY: PREPARED Butcher, Does the new Ogden QUESTION: State of Utah authorized officer that the defendant be discharged from actual custody upon bail." The cross references following the' statute refer the reader to bail commissioners and justices courts. It seems clear that "legally authorized officer" means a person who is authorized to grant bail through special statutory enactments and so limited accordingly. Utah Code Ann. (1953), one of the main bail' statutes, refers only to magistrates as it speaks of the granting of bail. August 3, 1972 REQUESTED bail bail program whidh provides SS for the release of prisoners O.R. (on own recognizance without posting bail). upon the recommendation of a court --appointed evaluator comply with Utah law? 77-43-- 10, statutes requires that a magistrate grant bail far the defendant's discharge. -9, the accused to bail and discharge the defendant. evident from the statutes that a judge may- not to grant and set bail, as that is a judicial delegate his function which is vested solely in the courts. However, the Ogden bail program as originally established did not accomplish such a delegation of authority. The judicial function of granting bail remained in the judge, and the evaluators merely performed a. ministerial as opposed to a judicial function. It OPINION The question presented in this opinion involves the of the Ogden bail program which provides for the legality release of certain qualified prisoners on their own recognizance. However, to fully understand the issue, it is important to know how the program functioned in the past and how it works now. seems power . Corpus and judicial Original Program. program as the it was originally established, their and defines the duty to be such precision and with performed as to leave nothing to the certainty exercise of discretion or judgment, the act is miniterial; but, where the act to be done involves the exercise of discretion or judgment in determining whether the duty exists, it is not educational background, (5) prior criminal record, and (6). health A point system was established which assigned a set number of subdivision of the six general categories. For points to each ... - example, under "family points if he ties" lived with his . - of points, the evaluator telephoned the judge and gave him the information on the evaluation sheet. The judge then made the decision whether to release the prisoner on his own recognizance and issued an order for the release of the accused if he so decided. minimum number, In those cases where there was a doubt as to whether the accused had qualified with the minimum number of points, Of course, if a judge was also called to make the decision. the accused chose to see a magistrate he was taken before the possible and was not city court as soon as was reasonably required to see an interviewer . This program appears to have been successful as the following record indicates. Since its inception, 679 persons had been interviewed, of which 345 were released O.R. and of those, 99.1 percent appeared in court as directed. The a question involved in this opinion then is not whether such was legal program is feasible or desirable, but whether it a judge appoint under existing Utah law. In other words, may interview to them defendants authority evaluators and give and make bail recommendations to him as the Ogden City Court Judges have done? O.R. is included authority to release prisoners in and is part of the power to grant and set bail, so that the resolution of this issue may be found by examining the city court's powers to establish bail and to change its procedures The it. "Granting bail and fixing its. amount is function; it is exclugenerally a judicial or quasi judicial of a statutory absence sively a judicial function in the to others." 8 Am.Jur.2d authorization extending the right Bail and Recognizance S 8. See also 50 C.J.S. Judicial P 567, footnote 25. Utah Code Ann. to bail is the order of J $ a states that "admission competent court, magistrate or legally 77-4- 3-1 (1953) deemed merely ministerial. That does not become a necessity because nature in judicial of ascertainment the for exist may on or the existence facts conditions, or fulfillment of which performance becomes a clear and specific duty." 50 C.J.S Judicial p. 5612 r which a person was given: three (3) family and had regular contact If, was done by either a magistrate or a bail commissioner. a had accused the had been information theverified, after in dealing with to be . with family members, two (2) points if he lived with his family or had weekly contact with them, one (1) point, if he lived with a nonfamily person, and no (o) points if he lived alone. Also contained in the form was space for the comments of the evaluator, the arresting officer, the jailer, and the judge. The evaluator would verify all the information given him by the accused if the point total had reached a certain minimum number. If the information checked out the person would be recommended for release on his own recognizance. However, if an applicant for release on his own recognizance did not receive the minimum number of points, his application was refused and he was given the opportunity to be released on bail. The evaluators did not set or receive bail; that points out the difference between proscribes own .. Secundum distinction between ministerial, judicial, and other official acts, seems to be that, where the law recognizance. The evaluation form. called for specific information in six different areas: (1) residence, (2) family ties, (3) employment, (4) . Juris "The a me on - ministerial functions: evaluators were selected by the Ogden City group of part-timade were and officers of the Court by Court order. Judges were These evaluators assigned to the Weber County Jail and were placed on 24 hour call. The Ogden City Courts, with the aid of the Sheriff's Office, then drafted, an evaluation sheet which was used by the "evaluation specialists" in interviewing persons seeking release issue the order specific regard to misdemeanant offenses, Utah Code Ann. S 10, 11 and 12 (1953) are applicable. They require the that arresting officer bring the accused before the magistrate See opinion. Under and With who must admit A. 3-6 Other statutes which further restrict the granting of and the right of discharge are as follows: Utah Code Ann. 11 and 16 (1953) . Here again, the language of these 77-12- CONCLUSION: fiys is ministerial According to this definition, the evaluators were no more than ministerial officers. They did not act on their own discretion; such discretion remained in the court. The judge, not the evaluator, the decisions evaluation information specialists merely gathered according to a proscribed procedure so definite that it left nothing to all orders for release and issued their own made O.R. The discretion. The Utah Code provides for the appointment and use of such ministerial officers by the city courts. Utah -5 Code Ann. $ (1953) which sets out the powers of the courts, speaks of the court's power to control the conduct of its ministerial officers. That statement is a clear indication that the legislature granted the courts authority to appoint ministerial officers to perform ministerial 78-7- functions The use to of evaluation specialists also appears be authorized under Section 2 of the same statute. That section speaks of persons empowered by the court to conduct judicial investigations. In view of the fact that the evaluators' functions were strictly investigatory, they would seem to fall under this section. I Subsections (8) and (9) of Utah Code Ann. -5 (1953) give the courts power to amend and control their processes and orders so as to make them conformable to law and justice. The change in the Ogden bail program seems to have been of the type contemplated under these sections. It appears to have conformed with the law since it was the court's desire to avoid the injustices of posting bail that inspired the reform. 78-7- it granted only ministerial powers to the while evaluators, leaving the judicial authority to grant bail and issue orders for release vested in ,the court, the original Ogden bail program as described above appears to have been in conformity with the law. Because B. The Program A as Changed. recent change in regarding its legality. The the Weber County Jail giving he program Ogden raises some new the evaluators the authority to a judge. In all other respects, as described above. That order read as release persons without contacting the program is the follows: same "It is hereby ORDERED by the entitled Court that the Court Interviewers, whose names are listed on the attached sheet, which is .made above V questions City Court issued an order to |