CONCORD, N.H. — The New Hampshire Supreme Court says a bail bond company must forfeit $11,000 in bond money, even though it couldn't produce its client for trial in New Hampshire because he was incarcerated in Vermont.
Lawyers for Free Bail Bonds of Nevada argued in February that Vermont's incarceration of Sean McGurk was an act of government that — under New Hampshire law — excuses the bail bond company.
The justices ruled unanimously Friday that the New Hampshire law dating back to 1867 applies only to acts of New Hampshire governmental authorities and not those of another state.
The court cited an 1872 U.S. Supreme Court ruling that is still considered the law of the land. The ruling chastises surety companies for permitting clients to go beyond state lines, calling it "unwise and imprudent," and states that the bail bond company will bear the burden of the consequences "if any evil ensue."
"It's an old rule that a lot of states have modified by statute, but New Hampshire has not," said Assistant Attorney General Nicholas Cort, who argued the case for the state. "It's a correct ruling."
McGurk was arrested in Vermont in October 2010 — a month before he was to go on trial in Manchester on multiple felony charges — after leading state police there on a high-speed chase and holing up in an abandoned building. After flushing him out of the building with teargas, Vermont authorities set his bond at $75,000.
Attorney Adam Bernstein, representing the bail bond company, argued that his client notified New Hampshire trial judge William Lyons three weeks before trial that McGurk would be unable to appear because he could not afford to post bond. Lyons ordered the bond forfeited and denied motions for reconsideration, saying Free Bail Bonds had opted not to restrict McGurk's movements to the state of New Hampshire as a condition of his bond.
The Supreme Court ruled that the law's language does not encompass acts by another state's government. It also rejected arguments by lawyers for Free Bail Bonds that the trial court treated the bond as a performance bond rather than an appearance bond.
"Although the court noted that the defendant's failure to appear resulted from his decision to travel to Vermont and commit crimes, the court's order makes clear that it forfeited the bonds because the defendant failed to appear, not because of his criminal activity," Justice Robert Lynn wrote.
McGurk, 41, is serving a four-year sentence in New Hampshire for a Grafton County burglary. His lawyer, Mark Sisti, said prosecutors opted not to try McGurk on the Manchester charges.
Bernstein did not immediately return a call seeking comment Friday.