Arizona Dept. of Public Safety v. Superior Court In and For Maricopa County

• Citation: 190 Ariz. 490,257 Ariz. Adv. Rep. 14,949 P.2d 983
• Decision Date: 04 December 1997
• Docket Number: No. 1,CA-SA,1
• Parties: 257 Ariz. Adv. Rep. 14 ARIZONA DEPARTMENT OF PUBLIC SAFETY, Joe Albo, Director; Arizona Department of Corrections, Terry L. Stewart, Director; Maricopa County Adult Probation Department, Norman Helber, Administrator, Defendants-Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable B. Michael Dann, a judge thereof, Respondent, Kenneth J. FALCONE and Harry Dennis Brumett, Plaintiffs-Respondents/Real Parties in Interest. 97-0307. Division 1
• Court: Arizona Court of Appeals

Page 983

949 P.2d 983

257 Ariz. Adv. Rep. 14

ARIZONA DEPARTMENT OF PUBLIC SAFETY, Joe Albo, Director; Arizona Department of Corrections, Terry L. Stewart, Director; Maricopa County Adult Probation Department, Norman Helber, Administrator, Defendants-Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable B. Michael Dann, a judge thereof, Respondent Kenneth J. FALCONE and Harry Dennis Brumett, Plaintiffs-Respondents/Real Parties in Interest.

No. 1 CA-SA 97-0307.

Court of Appeals of Arizona,

Division 1.

Dec. 4, 1997.

As Amended Dec. 16, 1997.

Grant Woods, Attorney General by John E. Birkemeier, Assistant Attorney General, Thomas J. Dennis, Assistant Attorney General, Phoenix, for Defendants-Petitioners.

Kenneth John Falcone, Tucson, In Propria Persona.

Harry Dennis Brumett, Phoenix, In Propria Persona.

Richard M. Romley, Maricopa County Attorney by Susan Sherwin, Deputy County Attorney, Phoenix, for Amicus Curiae Maricopa County Sheriff.

OPINION

EHRLICH, Judge.

The Arizona Department of Public Safety ("DPS"), the Arizona Department of Corrections and the Maricopa County Adult Probation Department seek review by special action of declarations by the respondent Maricopa County Superior Court Judge B. Michael Dann regarding the sex-offender community-notification statute. ARIZ.REV.STAT. ANN. ("A.R.S.") § 13-3825 (Supp.1997) . ¹ Judge Dann held that the application of the statute to persons such as Kenneth Falcone and Harry Dennis Brumett who committed a qualifying offense prior to the June 1, 1996, effective date of the statute violates the Ex Post Facto Clauses of the United States and Arizona Constitutions. UNITED STATES CONST. art. 1, § 10; ARIZ. CONST. art. 2, § 25. ² He also preliminarily enjoined the application of section 13-3825 to Falcone and Brumett. For reasons given below, we conclude that it is appropriate to accept jurisdiction, and we further determine that retroactive application of section 13-3825 is constitutional.

A. Background

Falcone and Brumett were convicted of sex offenses against children. As sex offenders, Arizona law requires that each register with the sheriff of the Arizona county in which each resides. A.R.S. § 13-3821(A) (Supp.1997). The information required to be provided by the offender is forwarded to DPS and to the chief of police, if there is one, where the offender resides. A.R.S. § 13-3821(D) (Supp.1997).

In State v. Noble, 171 Ariz. 171, 829 P.2d 1217 (1992), the Arizona Supreme Court considered an ex post facto challenge to the application of the registration statute to persons who had committed qualifying offenses prior to the statute's effective date. The court found the retroactive application of the statute to be constitutional. Id. at 178, 829 P.2d at 1224.

In 1995, the Arizona legislature added a community-notification provision to the statute. A.R.S. § 13-3825. This statute now is the subject of an ex post facto challenge. ³

Falcone filed a complaint for declaratory judgment seeking the superior court's determination that the operation of the Ex Post Facto Clauses bars the application of Arizona's sex-offender community-notification statute to those who committed qualifying offenses before the statute's effective date. Brumett successfully moved to intervene and then moved for a preliminary injunction to suspend application of the law.

In a minute entry, Judge Dann concluded that the community-notification statute violated the ex post facto prohibition and thus could not be applied to Falcone and Brumett. He then enjoined the petitioners plus "the State of Arizona and its officers, agents and employees from applying or attempting to apply any of the provisions of the community notification statute ... to [the real parties in interest] or to others whose qualifying offenses were committed prior to June 1, 1996." Although requested, there were neither findings of fact nor conclusions of law as required. Mandraes v. Hungerford, 127 Ariz. 585, 587, 623 P.2d 15, 17 (1981) (applying ARIZ. R. CIV. P. 52(a)).

This ruling differed from the conclusion of at least one other superior court judge who found the retroactive application of the notification statute constitutional. Matthews v. City of Tempe, Maricopa County Superior Court CV97-07756 (Hon. Brian R. Hauser, May 16, 1997). Nonetheless, on his own motion, Judge Dann also entered an order to show cause why the case before him should not be certified as a class action.

B. Special-Action Jurisdiction

Special-action review usually is not available when there is an adequate remedy by appeal, ARIZ. R.P. SPEC. ACT. 1; see A.R.S. § 12-2101(F)(2), but the availability of an appeal does not foreclose the exercise of this court's discretion to accept jurisdiction. Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App.1992); City of Phoenix v. Superior Court, 158 Ariz. 214, 216, 762 P.2d 128, 130 (App.1988). The petitioners contend, and we agree, that, in this case, we should accept jurisdiction because the remedy of a direct appeal is unsatisfactory: The issue presented is purely one of law and one on which the superior court judges are divided; it specifically presents a constitutional question, therefore an issue of statewide importance; and it serves judicial economy to address a matter of first impression which is certain to occur again. Pompa v. Superior Court, 187 Ariz. 531, 533, 931 P.2d 431, 433 (App.1997); State v. Superior Court (Richard), 184 Ariz. 103, 104, 907 P.2d 72, 73 (App.1995); Vo, 172 Ariz. at 198, 836 P.2d at 411; City of Phoenix, 158 Ariz. at 216, 762 P.2d at 130.

C. Scope of Review

We review an order granting a preliminary injunction for a clear abuse of judicial discretion, such as the misapplication of the law to undisputed facts. City of Phoenix, 158 Ariz. at 217, 762 P.2d at 131. A statute's constitutionality is a matter of law analyzed de novo by this court, State v. Buccini, 167 Ariz. 550, 556, 810 P.2d 178, 184 (1991), beginning with the presumption that the statute is constitutional. State v. Tocco, 156 Ariz. 116, 119, 750 P.2d 874, 877 (1988); McClead v. Pima County, 174 Ariz. 348, 352, 849 P.2d 1378, 1382 (App.1992). Thus, the party challenging its validity bears the burden of establishing that the legislation is unconstitutional; any doubts are resolved to the contrary. McClead, 174 Ariz. at 352, 849 P.2d at 1382.

D. Analysis

"Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed" violates the Ex Post Facto Clauses of the Arizona and United States Constitutions. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (emphasis omitted); California Dep't of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 1602 n. 2, 131 L.Ed.2d 588 (1995); see also State v. Cocio, 147 Ariz. 277, 284, 709 P.2d 1336, 1343 (1985) ("[T]he Arizona Legislature may not enact a law which imposes any additional or increased penalty for a crime after its commission."). ⁴

Initially we must determine whether the statute is retroactive, Noble, 171 Ariz. at 174, 829 P.2d at 1220, and we conclude that it is. First, although the community-notification legislation originally was to apply prospectively, Act of April 19, 1995, ch. 257, section 11, subsec. A., 1995 Ariz. Sess. Laws 2016, the legislature amended A.R.S. section 13-3825 in 1996 and specifically included a retroactivity provision. Act of May 1, 1996, ch. 315, sec. 22, subsec. A., 1996 Ariz. Sess. Laws 1981. Second, the law "change[d] the legal consequences of acts completed before its effective date." Weaver v. Graham, 450 U.S. 24, 31, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981); see also State v. Yellowmexican, 142 Ariz. 205, 207, 688 P.2d 1097, 1099 (App.) (a statute is retroactive if it applies "to events occurring before its enactment" and "disadvantage[s] the offender"), adopted and approved, 142 Ariz. 91, 688 P.2d 983 (1984). Third, this change in the law operated to the disadvantage of the real parties in interest, as the court in Noble found of the sex-offender registration statute. 171 Ariz. at 174, 829 P.2d at 1220.

Accepting the retroactivity of the legislation, the inquiry in an ex post facto challenge distills to the "sole question" whether the statute is punitive or whether it is regulatory. Id. at 173-75, 829 P.2d at 1219-21. If the statute is punitive, then it may not be applied retroactively; if it is regulatory, retroactive application does not offend the Ex Post Facto Clauses. Id.

To determine whether the community-notification statute is punitive, we first examine the legislative purpose in enacting the statute. Id. at 175, 829 P.2d at 1221. The intent of the legislature is singularly important although not the sole determinant. Kansas v. Hendricks, --- U.S. ----, ----, 117 S.Ct. 2072, 2082, 138 L.Ed.2d 501 (1997); United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 2147, 135 L.Ed.2d 549 (1996). "If the legislative aim was punitive, we treat the [statutory] requirement as a punishment. If, on the other hand, the legislature indicated a non-punitive purpose, we must 'inquire further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.' " Noble, 171 Ariz. at 175, 829 P.2d at 1221 (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980), citing Flemming v. Nestor, 363 U.S. 603, 617-21, 80 S.Ct. 1367, 1376-78, 4 L.Ed.2d 1435 (1960)).

The history of the sex-offender registration statute contained little evidence of legislative intent. Noble, 171 Ariz. at 175, 829 P.2d at 1221. In passing the community-notification statute, however, the legislature furnished ample indication that it intended to protect communities, not punish sex offenders.

The legislature finds that some sex offenders pose a high risk of engaging in sex offenses after being released from imprisonment or commitment and that...