719 F.3d 1054 (9th Cir. 2013), 11-16487, Lopez-Valenzuela v. County of Maricopa

Docket Nº:11-16487.
Citation:719 F.3d 1054
Opinion Judge:TALLMAN, Circuit Judge:
Party Name:Angel LOPEZ-VALENZUELA; Isaac Castro-Armenta, Plaintiffs-Appellants, v. COUNTY OF MARICOPA; Joseph M. Arpaio, Maricopa County Sheriff, in his official capacity; William G. Montgomery, Maricopa County Attorney, in his official capacity, Defendants-Appellees.
Attorney:Cecillia D. Wang (argued) and Kenneth J. Sugarman, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, CA; Andre I. Segura and Esha Bhandari, American Civil Liberties Union Foundation Immigrants' Rights Project, New York, NY; Daniel Pochoda, American Civil Liberti...
Judge Panel:Before: RAYMOND C. FISHER, RICHARD C. TALLMAN, and CONSUELO M. CALLAHAN, Circuit Judges. FISHER, Circuit Judge, dissenting:
Case Date:June 18, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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719 F.3d 1054 (9th Cir. 2013)

Angel LOPEZ-VALENZUELA; Isaac Castro-Armenta, Plaintiffs-Appellants,

v.

COUNTY OF MARICOPA; Joseph M. Arpaio, Maricopa County Sheriff, in his official capacity; William G. Montgomery, Maricopa County Attorney, in his official capacity, Defendants-Appellees.

No. 11-16487.

United States Court of Appeals, Ninth Circuit.

June 18, 2013

Argued and Submitted Oct. 19, 2012.

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Cecillia D. Wang (argued) and Kenneth J. Sugarman, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, CA; Andre I. Segura and Esha Bhandari, American Civil Liberties Union Foundation Immigrants' Rights Project, New York, NY; Daniel Pochoda, American Civil Liberties Foundation of Arizona, Phoenix, AZ, for Plaintiffs-Appellants.

Timothy J. Casey (argued), Schmitt Schneck Smyth Casey & Even, P.C., Phoenix, AZ, for Defendants-Appellees Maricopa County and Joseph M. Arpaio.

Bruce P. White and Anne C. Longo, Deputy County Attorneys, Maricopa County Civil Services Division, Phoenix, AZ, for Defendant-Appellee William Montgomery.

Appeal from the United States District Court for the District of Arizona, Susan R. Bolton, District Judge, Presiding. D.C. No. 2:08-cv-00660-SRB.

Before: RAYMOND C. FISHER, RICHARD C. TALLMAN, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

In 2006, Arizona voters overwhelmingly approved an amendment to their state constitution known as " Proposition 100." It commands that Arizona state courts may not set bail " [f]or serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge." Ariz. Const. art. II, § 22(A)(4) (as amended). Felony arrestee plaintiffs Angel Lopez-Valenzuela and Isaac Castro-Armenta filed a class action in the United States District Court for Arizona seeking declaratory, injunctive, and habeas relief challenging the constitutionality of Proposition 100 and its implementing statute and rules. They argue that the new criminal procedures violate the substantive and procedural due process guarantees of the Fourteenth Amendment, the Excessive Bail Clause of the Eighth Amendment, and the Sixth Amendment right to counsel. They further claim that the Arizona law is preempted by federal immigration law. The district court granted summary judgment and partial dismissal in favor of the Arizona state officials named in the suit. We affirm.

I

Voters approved the November 2, 2006, ballot measure by a margin of 78 percent to 22 percent. Prior to passage of Proposition 100, Article II, Section 22 set forth several exceptions to the general presumption that persons charged with crimes are entitled to bail. These exceptions were for particularly serious offenses such as murder or sexual abuse of children or other indicia of dangerousness. To ensure the defendant's presence throughout his criminal prosecution, amended Article II, Section 22 now provides that no bail may be set " [f]or serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge." Ariz. Const. art. II, § 22(A)(4). Proposition 100 does not contain a definition of " serious felony offense." To make that determination we must look to the general laws of Arizona. Prior to Proposition 100's passage, the Arizona Legislature passed House Bill 2580, defining " serious felony offense," should Proposition 100 be adopted by the electorate, as any Class 1, 2, 3, or 4 felony or aggravated driving-under-the-influence offense. Ariz.Rev.Stat. Ann. § 13-3961(A)(5)(b).

In the early days after Proposition 100's enactment there was confusion over the

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standard of proof that should apply to the determination of immigration status for bail purposes during an initial appearance (" IA" ). 1 Some IA commissioners were applying a " proof evident/presumption great" standard to both the criminal charge and the immigration status determination. To resolve the uncertainty, on April 3, 2007, the Chief Justice of the Arizona Supreme Court issued Administrative Order 2007-30. Admin. Order No. 2007-30, available at http:// www. azcourts. gov/ portals/ 22/ admorder/ orders 07/ 2007- 30. pdf (last visited June 10, 2013). The Order set the standard of proof for IA immigration status determinations as probable cause. Id. But the Order also directed that if a commissioner found probable cause to believe that a defendant had entered or remained in the United States illegally, a follow-up evidentiary hearing on whether bail should be denied was to be held within twenty-four hours. Id. At that hearing, known as aSimpson / Segura hearing,2 defendants would be " entitled to representation by counsel, and to present evidence, testimony, and witnesses, by proffer or otherwise, to provide evidence on the defendant's behalf." Id. The standard of proof for immigration status at theSimpson / Segura hearing was to be the " proof evident/presumption great" standard. Id.

Before Administrative Order 2007-30 could be implemented, however, the Arizona Legislature passed Senate Bill 1265, codifying the probable cause standard for the immigration status determination. Ariz. R.Crim. P. 7.2(b). In the wake of the Bill's passage, the Chief Justice rescinded Administrative Order 2007-30 and adopted amendments to the Arizona Rules of Criminal Procedure recognizing the probable cause standard for immigration status determinations. See Segura, 196 P.3d at 840 (detailing the history of Proposition 100, Administrative Order 2007-30, and Senate Bill 1265). The current Rules now provide that the bail determination must be made at the initial appearance, that " any party" may move for a reexamination of release conditions imposed at the initial appearance, and that a hearing on such motion " shall be held on the record as soon as practicable but not later than seven days after filing of the motion." Ariz. R.Crim. P. 7.4(b).

Plaintiff-Appellant Angel Lopez-Valenzuela was arrested and charged with the crime of dangerous drug transportation and/or offer to sell, a Class 2 felony under Arizona criminal law. Ariz.Rev.Stat. Ann. § 13-3407(A)(7). Because the IA commissioner found probable cause to believe him to be in the United States illegally, he was denied bail pursuant to the Proposition 100 laws. Plaintiff-Appellant Isaac Castro-Armenta was arrested and charged with Class 2, 3, and 4 felonies including aggravated assault with a deadly weapon, kidnaping, and assisting a criminal syndicate. Probable cause was also found to believe that Castro-Armenta was in the United States illegally and he too was denied bail under Proposition 100.

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The two arrestees then filed a combined class action complaint and habeas corpus petition seeking declaratory and injunctive relief to strike down the Proposition 100 laws and to restrain the state's bail enforcement policies and practices. The district court granted Plaintiffs' motion to certify their lawsuit as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2), and by the same order granted Defendants' Rule 12(b)(6) motion to dismiss their claim that Proposition 100 was preempted by federal immigration laws. Lopez-Valenzuela v. Maricopa County, No. 08-00660 (D.Ariz. Dec. 9, 2008) (order certifying class and granting partial dismissal).3 The parties filed cross-motions for summary judgment on the remaining claims and the district court entered final judgment granting Defendants' motion as to five of the remaining six counts in their Complaint. The court subsequently dismissed without prejudice (per Plaintiffs' request) the final count addressing the Fifth Amendment right against self-incrimination.4 Lopez-Valenzuela v. Maricopa County, No. 08-00660 (D.Ariz. Mar. 19, 2011) (order granting summary judgment and dismissal).

II

We review de novo a district court's grant or denial of summary judgment. Russell Country Sportsmen v. U.S. Forest Serv., 668 F.3d 1037, 1041 (9th Cir.2011). We also review de novo a district court's grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). We review a challenge to the constitutionality of a statute de novo as well. United States v. Gonzales, 307 F.3d 906, 909 (9th Cir.2002).

A

We must first determine whether Proposition 100 bail laws create an impermissible scheme of punishment in violation of the federal Constitution's Due Process Clause. We evaluate substantive due process challenges to bail statutes under the framework articulated in United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Supreme Court there instructed us that " [t]o determine whether a restriction on liberty constitutes impermissible punishment or permissible regulation, we first look to legislative intent." Id. at 747, 107 S.Ct. 2095. Absent an express intent on the part of the legislature to punish, " the punitive/regulatory distinction turns on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it." Id. (internal citations and quotation marks omitted). In other words, under this two-pronged approach, even where a legislature does not express a clear punitive intent a bail regulation may still be unconstitutional if it is excessive in relation to its legitimate alternative purpose.

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