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Simpson v. Miller

Court of Appeals of Arizona, First Division

June 14, 2016

JASON DONALD SIMPSON, a.k.a. JASON DONALD SIMPSON, SR., Petitioner,
v.
THE HONORABLE PHEMONIA MILLER, Commissioner of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Commissioner, STATE OF ARIZONA, Real Party in Interest. JOE PAUL MARTINEZ, Petitioner,
v.
THE HONORABLE ROLAND J. STEINLE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA, Real Party in Interest.

         Petitions for Special Action from the Superior Court in Maricopa County No. CR2015-134762-001, CR2014-118356-001 The Honorable Phemonia Miller, Judge Pro Tempore, The Honorable Roland J. Steinle, Retired Judge

          Gallagher & Kennedy, P.A., Phoenix By Woodrow C. Thompson, Hannah H. Porter Co-counsel for Petitioner Jason Donald Simpson

          Quarles & Brady LLP, Phoenix By Hector J. Diaz, James L. Burke Co-counsel for Petitioner Jason Donald Simpson

          Perkins Coie LLP, Phoenix By Jean-Jacques Cabou, Sarah R. Gonski Co-counsel for Petitioner Joe Paul Martinez

          Law Offices of Brian F. Russo By Brian F. Russo Co-counsel for Petitioner Joe Paul Martinez

          Maricopa County Attorney's Office, Phoenix By David R. Cole, Arthur Hazelton, Susan L. Luder Counsel for Real Party in Interest

          Judge Peter B. Swann delivered the opinion of the court, in which Presiding Judge Kenton D. Jones joined. Judge Andrew W. Gould dissented.

          OPINION

          SWANN, Judge:

         ¶1 These special actions require us to determine the constitutional minimum requirements for bail hearings when a statute makes certain serious offenses nonbailable. The petitioners were each charged with sexual conduct with a minor under the age of 15 and were denied bail under A.R.S. § 13-3961(A)(3). We do not hold that the petitioners were entitled to bail, but that they were entitled to hearings at which the judges could consider whether any release conditions could protect the victims and the community.

         ¶2 In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court upheld a federal statute that required denial of bail for certain categories of serious felonies because the government was first required to prove by clear and convincing evidence that no release conditions "will reasonably assure . . . the safety of any other person and the community." 18 U.S.C. § 3142(e). Consistent with Salerno, A.R.S. § 13-3961(D) provides that persons charged with terrorism or any dangerous crime against children may be denied bail when the state demonstrates that the person likely committed the offense and "no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community." By contrast, A.R.S. § 13-3961(A)(3) provides that persons charged with sexual conduct with a minor under the age of 15 must be denied bail upon nothing more than a sufficient showing that they likely committed the offense -- without addressing the availability of release conditions that could assure the safety of victims and the community.

         ¶3 Because the categorical rule established by § 13-3961(A)(3) requires denial of bail without considering whether any release conditions could ensure victim and community safety, it is facially unconstitutional under Salerno.

         FACTS AND PROCEDURAL HISTORY

         ¶4 The petitioners in this consolidated special action were (in unrelated cases) arrested and indicted on numerous charges, including sexual conduct with minors under the age of 15, class 2 felonies under A.R.S. § 13-1405(B) and dangerous crimes against children under A.R.S. § 13-705(P)(1)(e). Petitioner Martinez is being held without bond as he awaits trial, on the ground that he is ineligible for bail under A.R.S. § 13-3961(A)(3) and the corresponding Ariz. Const. art. II, § 22(A)(1). Petitioner Simpson was likewise held without bond for a period. But during the pendency of these special actions, the superior court granted his motion to amend release conditions and authorized a $5 million bond with restrictions designed to protect his victims.

         ¶5 The superior court rejected the petitioners' facial due- process challenges to the bail provisions. The petitioners renew those challenges on special action. The Arizona Attorney General, the Speaker of the House of Representatives, and the President of the Arizona Senate were given an opportunity to participate in this matter, see A.R.S. § 12-1841, but did not do so.

         JURISDICTION

         ¶6 We accept special-action jurisdiction because the petitioners have no adequate remedy by appeal.[1] See Ariz. R.P. Spec. Act. 1(a). "Issues involving pretrial incarceration and release conditions become moot once a trial is conducted and any appeal can be filed." Costa v. Mackey, 227 Ariz. 565, 569, ¶ 6 (App. 2011). Further, the petitions present a novel question of law that is of statewide importance and is likely to recur. See Chartone, Inc. v. Bernini, 207 Ariz. 162, 165-66, ¶¶ 7-8 (App. 2004); Welch-Doden v. Roberts, 202 Ariz. 201, 204, ¶ 10 (App. 2002).

         STANDARD OF REVIEW

         ¶7 As an initial matter, we observe that while successful facial challenges are difficult to mount, Salerno, 481 U.S. at 745, they "are not categorically barred or especially disfavored, " City of Los Angeles v. Patel, 135 S.Ct. 2443, 2449 (2015). "Under the most exacting standard the [Supreme] Court has prescribed for facial challenges, a plaintiff must establish that a law is unconstitutional in all of its applications." Id. (citation omitted). "The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." Id. (citation omitted). Indeed, Salerno itself involved a facial challenge that the Court considered on its merits -- had the hearing requirements at issue there been constitutionally inadequate, the facial challenge would have succeeded because they would have been inadequate in every case. That is the case here.

         ¶8 We must ask whether the nature of the hearing authorized by A.R.S. § 13-3961(A)(3) denies due process to those facing a bail determination. If no person charged with the offense can receive the constitutionally required hearing, then the statute is unconstitutional in every case. Bail can constitutionally be denied. The question is whether § 13-3961(A)(3) does so in a manner consistent with due process.

         DISCUSSION

         ¶9 Ariz. Const. art. II, § 22(A), provides that "all persons charged with crime shall be bailable by sufficient sureties, " with certain enumerated exceptions. And no person may be deprived of life, liberty, or property without due process of law. U.S. Const. amend. XIV; Ariz. Const. art. II, § 4. Exceptions to the Arizona Constitution's general rule that bail will be available must therefore satisfy the due process requirements of the United States Constitution. See Salerno, 481 U.S. at 750-51.

         ¶10 A.R.S. § 13-3961(A)(3) provides: "A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is . . . [s]exual conduct with a minor who is under fifteen years of age." We have examined § 13-3961(A) before. See Simpson v. Owens ("Simpson I"), 207 Ariz. 261, 269, ¶¶ 23-25 (App. 2004). Simpson I addressed the burden and elements of proof necessary for a finding that the "proof is evident or the presumption great." Id. at 270-74, ¶¶ 26-40. But while we recognized in Simpson I that no consideration of risk-manageability is required as a matter of Arizona law, we were not asked to consider whether the absence of such an inquiry violates due process. We do not disturb the holding of Simpson I -- it remains the governing law for the hearing required by § 13-3961(D).

         ¶11 Our analysis is governed by Salerno. In Salerno, the Supreme Court held that the Bail Reform Act of 1984 comported with due process, 481 U.S. at 741, 747-52, but cautioned that "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Id. at 755 (emphasis added). Concluding that the Act "narrowly focused on a particularly acute problem in which the Government interests are overwhelming, " the Court emphasized three important aspects of the legislation: (1) it applied only to those arrested for a specific group of extremely serious offenses, a category of persons that Congress specifically found to be far more likely to commit dangerous acts in the community post-arrest; (2) it required the government to demonstrate probable cause that the person committed the charged offense; and (3) it required the government to demonstrate by clear and convincing evidence, in a "full-blown adversary hearing, " that "no conditions of release can reasonably assure the safety of the community or any person." Id. at 750 (emphasis added).

         ¶12 The three factors, in toto, that led the Supreme Court to uphold the Bail Reform Act were essential to its reasoning and to the result. The Court wrote that the Act was not

a scattershot attempt to incapacitate those who are merely suspected of these serious crimes. The Government must first of all demonstrate probable cause to believe that the charged crime has been committed by the arrestee, but that is not enough. In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person. 18 U.S.C. § 3142(f). While the Government's general interest in preventing crime is compelling, even this interest is heightened when the Government musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Under these narrow circumstances, society's interest in crime prevention is at its greatest . . . .
When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat.

Id. (emphases added). The Court's reference to "these narrow circumstances" and the need for proof beyond probable cause to believe the arrestee committed the crime was neither careless nor accidental; we understand the Court's reliance on this proof to have been essential to the result in Salerno. See also Demore v. Kim, 538 U.S. 510, 549 (2003) (Souter, J. concurring in part, dissenting in part) ("In deciding in Salerno that this principle did not categorically bar pretrial detention of criminal defendants without bail under the Bail Reform Act of 1984, it was crucial that the statute provided that, '[i]n a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.'" (emphasis ...


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