It's been six months since professional bail bondsman began working again in Kanawha County, but it still hasn't been decided whether the order allowing them to is legal.
Attorneys with the Kanawha Public Defender's Office on Dec. 15 filed a petition arguing that the administrative order allowing bondsmen to work in the county, which was entered Oct. 5 by then-Chief Kanawha Circuit Judge James Stucky, was never presented to the state Supreme Court for approval, as state Trial Court Rules require.
Supreme Court justices must give prior approval of any "local rule changes," wrote Chief Public Defender Diana Panucci and former chief George Castelle, who works as senior counsel for the office. They have asked that Stucky's order be rescinded.
The petition was assigned to Kanawha Circuit Judge Bailey, who hasn't ruled on it.
"At this juncture, we are patiently awaiting a ruling," Panucci said Friday. Bailey couldn't immediately be reached for comment.
During a hearing on Jan. 20, Bailey refused to grant a stay to the public defender's office while they waited for her to rule on Stucky's order. Bailey said at the time that the request for a stay did not seem to be an emergency order, since it was filed in December, months after Stucky's order.
Bailey, also at the hearing in January, called into question whether or not the order, based on how it was classified, had to be sent to the Supreme Court.
Four bail bonds companies have been approved to work in Kanawha. Stucky's order requires potential companies to gain approval from the county's chief judge before working in Kanawha. Judge Tod Kaufman took over as chief judge Jan. 1.
A circuit clerk in Kanawha said Friday that she wasn't aware of any problems occurring since the companies have been allowed to work.
Public defenders also argue that State Trial Court Rules require that in a circuit with multiple judges, a majority of judges sign off on administrative orders, their petition states. The order entered in October bears only Stucky's signature and makes no mention of how many judges opposed the order.
Before Panucci took issue with Stucky's order, she was critical about the idea of bondsmen working in Kanawha in general, saying defendants would lose money.
In Kanawha, a defendant usually is given the option of posting 10 percent of their bond amount to get out of jail. That money is then returned to them if they show up for court. But if they use the services of a bail bondsman, they don't get that money back.
Kanawha circuit judges barred professional bail bondsmen in 1998, after questions were raised about some of the bondsmen's lack of property value to secure some bonds. The 1998 administrative order would have allowed bondsmen to operate in Kanawha, but only if they formed a partnership, rather than being competitors. Bondsmen hadn't worked in Kanawha since, until late last year.
Panucci and Castelle argue in their petition that the 1998 order should still be in effect. According to the petition, in 2004, the Legislature passed a bill regulating bail bondsmen and authorized the Supreme Court to adopt rules about the practice. Justices at the time, though, said it should be left up to individual circuits. They amended trial court rules to state bondsmen can continue to function under rules adopted prior to 2004. Any new rules would have to come before the high court for approval, the petition states.
Reach Kate White at
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