Aaron & Morey Bonds & Bail v. Third District Court

2007 UT 24
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Aaron and Morey Bonds and Bail, Nos. 20060293
Petitioner, 20060294
v.
Third District Court, State of
Utah, Salt Lake County, and
Stephen Roth, District Court F I L E D
Judge,
Respondents. March 13, 2007
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Third District, West Jordan
The Honorable Stephen L. Roth
No. 031100455
Attorneys: Blake Nakamura, Salt Lake City, for petitioner
Brent M. Johnson, Salt Lake City, for respondents
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PARRISH, Justice:
BACKGROUND
¶1 On March 5, 2005, Aaron and Morey Bonds and Bail, as
Surety, posted a bond for Gustavo Samaniego. When Samaniego
failed to appear for his court date, the court clerk sent a
timely notice of nonappearance to the Surety. The notice did not
contain the fax number of the prosecutor, which the Surety argues
is required by Utah Code section 77-20b-101(1)(b).
¶2 The Surety moved for relief from any further obligation
under the bond, in accordance with Utah Code section
77-20b-101(3), and the district court denied the Surety’s motion.
The court held that the “technical omission” of the fax number
did not prejudice the Surety and that the notice sent by the
clerk substantially complied with the statute’s requirements.
¶3 The Surety then petitioned for extraordinary relief,
arguing that the district court abused its discretion when it

Nos. 20060293, 20060294 2
denied the Surety’s motion to exonerate the bond. The Surety
claims that the district court made a mistake of law when it
applied a substantial compliance standard to Utah Code section
77-20b-101(1)(b).
¶4 We conclude that the substantial compliance standard
applied by the district court was appropriate in light of the
statutory language and the lack of any prejudice suffered by the
Surety. We therefore deny the Surety’s petition for
extraordinary relief.
STANDARD OF REVIEW
¶5 Rule 65B of the Utah Rules of Civil Procedure allows a
litigant to petition for extraordinary relief when a lower court
abuses its discretion if no other “plain, speedy, or adequate
remedy is available.” Utah R. Civ. P. 65B(a). In this case, the
Surety has no other available remedy because it is not a party to
the underlying criminal action and is therefore unable to file a
traditional appeal. See State v. Sun Sur. Ins. Co., 2004 UT 74,
¶ 9 n.1, 99 P.3d 818.
¶6 A mistake of law, like the one the Surety argues
occurred here, may constitute an abuse of discretion for which
extraordinary relief is available. State v. Henriod, 2006 UT 11,
¶ 4, 131 P.3d 232. However, even if an abuse of discretion is
found, relief under rule 65B is still within the discretion of
this court. State v. Barrett, 2005 UT 88, ¶ 24, 127 P.3d 682.
ANALYSIS
¶7 This case turns on whether Utah Code section
77-20b-101(1)(b) requires strict or merely substantial compliance
with its terms. This court has acknowledged that there is no
universal rule of statutory construction to distinguish between
statutes requiring strict or substantial compliance. Kennecott
Copper Corp. v. Salt Lake County, 575 P.2d 705, 706 (Utah 1978).
As a general guide, however, substantial compliance with a
statutory provision is adequate when the provision is directory,
meaning it goes “‘merely to the proper, orderly and prompt
conduct of the business,’” id. (quoting 1A Sutherland Statutory
Construction § 25.03 (4th ed. 1973)), and the policy behind the
statute has still been realized. Badger v. Madsen, 896 P.2d 20,
23 (Utah Ct. App. 1995). Additionally, a reviewing court should
apply the substantial compliance standard only when “no prejudice
occurs as a result of failure to follow the direction of the
statute.” Bd. of Educ. v. Salt Lake County, 659 P.2d 1030, 1035
(Utah 1983); accord Projects Unlimited, Inc. v. Copper State
Thrift & Loan Co., 798 P.2d 738, 744 & n.5 (Utah 1990).

1 The 2006 amendments to section 77-20b-101(1) are mostly
stylistic and do not significantly change the requirements of the
statute.
3 Nos. 20060293, 20060294
¶8 Strict compliance, on the other hand, is required when
failure to adhere to the statute “will affect a substantive right
of one of the parties and possibly prejudice that party.” Tech-
Fluid Servs., Inc. v. Gavilan Operating, Inc., 787 P.2d 1328,
1333 (Utah Ct. App. 1990); see also Wheeler v. McPherson, 2002 UT
16, ¶ 11, 40 P.3d 632 (requiring strict compliance with
governmental immunity statutes because the statutory provisions
are conditions the government has placed on suits against
itself); Cache County v. Prop. Tax Div., 922 P.2d 758, 763 (Utah
1996) (“A designation is mandatory . . . if it is ‘of the essence
of the thing to be done.’” (quoting Kennecott Copper Corp., 575
P.2d at 706)); Bd. of Educ., 659 P.2d at 1033-35 (requiring
strict compliance because of prejudice even though the statutory
language appeared directory).
¶9 Legislative intent, as discerned from the wording of
the statute, and possible prejudice to the moving party must
therefore be evaluated when deciding whether strict compliance is
required. To determine legislative intent, we turn first to the
plain language of section 77-20b-101(1). See State v. Schofield,
2002 UT 132, ¶ 8, 63 P.3d 667; Lyon v. Burton, 2000 UT 19, ¶¶ 16-
18, 5 P.3d 616; Kennecott Copper Corp., 575 P.2d at 706.
Pursuant to our rules of statutory construction, we interpret
section 77-20b-101(1) in light of the statute as a whole and in
harmony with related statutory provisions. Schofield, 2002 UT
132, ¶ 8.
¶10 Subsection (1) requires the clerk of the court to
undertake four independent tasks if the court chooses to order a
forfeiture of bail after a defendant’s nonappearance. Utah Code
Ann. § 77-20b-101(1) (2003) (amended 2006).1 Under the statute,
the clerk of the court shall (a) mail the surety “notice of
nonappearance by certified mail . . . within 30 days”;
(b) “notify the surety . . . of the name, address, telephone
number, and fax number of the prosecutor”; (c) provide the
prosecutor’s office with a copy of the notice of nonappearance;
and (d) ensure that the surety’s contact information is stated on
the bench warrant. Id.
¶11 When construed in light of related statutory
provisions, we conclude that the fax number requirement contained
in section 77-20b-101(1)(b) is directory rather than mandatory.
First, the statute’s plain language does not require that the

Nos. 20060293, 20060294 4
prosecutor’s fax number be included in the notice of
nonappearance. Second, section 70-20b-101(3) relieves a surety
of its obligation on a bond only if notice is not mailed to the
surety pursuant to either section 70-20b-101(1) or 70-20b-101(2),
and the provision requiring notice of the prosecutor’s fax number
is not located in either of those subsections. Third, the fact
that the statute provides for alternative methods of notice--one
of which does not even mention inclusion of the prosecutor’s fax
number--indicates that strict compliance with subsection (1) is
unnecessary to fulfill the statutory purpose. We now explore
each of these rationales in more detail.
¶12 The Surety first contends that the plain statutory
language requires inclusion of the prosecutor’s fax number in the
mailed notice of nonappearance. We disagree. The notice
obligation specified in subsection (1)(a) requires that the clerk
of the court “mail notice of nonappearance by certified mail,
return receipt requested,” within thirty days of nonappearance.
Id. The only mention of the prosecutor’s fax number is found in
subsection (1)(b), which requires that the clerk of the court
notify the surety of the prosecutor’s contact information,
including his fax number. Id. § 77-20b-101(1)(b). By its plain
terms, the statute does not require that the prosecutor’s contact
information be included in the mailed notice. In fact, the court
clerk could satisfy the requirement of subsection (1)(b) by
periodically notifying surety holders--either in writing, by
telephone, or through some other means--of the prosecutor’s name,
address, and phone and fax numbers. The fact that the statute
does not articulate the method for providing the prosecutor’s
contact information to the surety implies that the notification
requirements of subsection (1)(b) are procedural rather than
substantive. The provision’s importance lies in ensuring that
the surety has the prosecutor’s contact information, not in
mandating the exact method by which that information is conveyed.
¶13 Second, the omission of the fax number is not a basis
for exoneration under Utah Code section 77-20b-101(3). The
Surety argues that the district court abused its discretion by
denying petitioner’s claim for exoneration of its bond obligation
under 77-20b-101(3). But section 77-20b-101(3) provides a surety
relief from its bond obligation only if “notice of nonappearance
is not mailed” to the surety in accordance with subsection (1) or
(2). Id. § 77-20b-101(3). In this case, the clerk of the court
complied with the requirements of subsection (1)(a), the portion
of subsection (1) that specifies the means and timing for mailing
a notice of nonappearance. The clerk’s failure to comply with
subsection (1)(b) is not a basis for exoneration specified by the
statute, further indicating that the provision requiring

2 Relying on Springville Citizens for a Better Community
v. City of Springville, 1999 UT 25, 979 P.2d 332, the Surety
argues that the “shall” language in the notification statute
suggests that inclusion of the fax number is mandatory. In
Springville Citizens, this court held that the city council could
not substantially comply with ordinances that it itself had
expressly made mandatory. Id. ¶ 29. The city council in that
case, however, had passed a statute indicating that “shall” and
“must” are always mandatory. Id. ¶ 27. Utah’s bail bond
statutes do not contain similar definitions. While “shall” is
generally presumed to indicate a mandatory requirement, it has
also been interpreted as merely directory. Bd. of Educ., 659
P.2d at 1035 (citing Kennecott, 575 P.2d at 706-07).
3 The exact wording of subsection (2) is as follows: “The
prosecutor may mail notice of nonappearance by certified mail,
return receipt requested, to the address of the surety within 37
days after the date of the defendant’s failure to appear.” Utah
Code Ann. § 77-20b-101(2) (2003) (amended 2006).
5 Nos. 20060293, 20060294
notification of the prosecutor’s fax number is directory rather
than mandatory.
¶14 Finally, when we consider the statute’s use of “shall”
and “may,” the directory nature of the fax number requirement
becomes more apparent. As previously stated, under subsection
(3), the surety is entitled to relief from its bond obligation
only if the court or prosecutor fails to provide notice pursuant
to either subsection (1) or (2). Subsection (1) uses “shall” to
describe the required actions of the clerk after a defendant’s
nonappearance, implying that its provisions are mandatory.2 Id.
§ 77-20b-101(1). But subsection (2) indicates that the
prosecutor “may mail notice of nonappearance” to the surety
within a designated period of time.3 Id. § 77-20b-101(2)
(emphasis added). Moreover, subsection (2) does not mention
inclusion of the prosecutor’s fax number. These provisions could
give rise to a situation where the clerk of the court fails to
adequately notify the surety in compliance with subsection (1)
but the prosecutor informs the surety in compliance with
subsection (2). In such an instance, the surety would not be
relieved of its bond obligation under subsection (3), even though
it never received notice of the prosecutor’s fax number. This
fact suggests that the surety is relieved of its bond obligation
only in the absence of mailed notice--not simply because the
mailed notice did not include the prosecutor’s fax number.
¶15 Having evaluated the statutory language, we now
consider whether the Surety suffered prejudice because of the

4 By finding no abuse of discretion by the district court
in applying the substantial compliance standard, we do not deny
that it would have been preferable had the clerk of the court met
the precise statutory requirements. Rather, we hold only that,
in this instance, given the directory nature of (1)(b) and the
lack of prejudice, substantial compliance is adequate and does
not constitute an abuse of discretion justifying extraordinary
relief.
Nos. 20060293, 20060294 6
exclusion of the prosecutor’s fax number. During oral argument,
counsel for the Surety admitted that the fax number was
incidental information and that its omission caused no prejudice
to the Surety. In its memorandum in support of its petition, the
Surety argues that in certain instances, none of which were
present in this case, a fax number could be critical information
necessary to notify the prosecutor of a defendant’s whereabouts.
The question, however, is not whether prejudice could
hypothetically occur, but whether it actually did occur in this
case. Projects Unlimited, Inc., 798 P.2d at 744 & n.5; Bd. of
Educ., 659 P.2d at 1033-34.4
¶16 Here, the Surety received the mailed notice of
nonappearance in compliance with subsection 77-20b-101(1)(a).
The Surety was also notified of the prosecutor’s office, address,
and phone number in compliance with the bulk of subsection
(1)(b). The Surety had adequate information to contact the
prosecutor in the course of its attempts to locate the defendant
and suffered no prejudice. We therefore conclude that the
district court correctly applied the substantial compliance
standard in this case.
CONCLUSION
¶17 We deny petitioner’s motion for extraordinary relief.
The fax number requirement in Utah Code section 77-20b-101(1)(b)
is directory rather than mandatory, and the district court
correctly determined that the omission of the fax number did not
prejudice the Surety. The district court’s application of the
substantial compliance standard was therefore justified and did
not constitute an abuse of discretion for which extraordinary
relief is warranted.
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¶18 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Nehring concur in Justice Parrish’s
opinion.