Hernandez v. Lynch

Decision Date02 October 2007
Docket NumberNo. 1 CA-SA 07-0092.,1 CA-SA 07-0092.
Citation216 Ariz. 469,167 P.3d 1264
PartiesMelvin Omar HERNANDEZ, Petitioner, v. The Honorable Steven P. LYNCH, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, The State of Arizona, ex rel. Andrew Thomas, the Maricopa County Attorney, Real Party in Interest.
CourtArizona Court of Appeals

Andrew P. Thomas, Maricopa County Attorney by James P. Beene, Deputy County Attorney, Phoenix, Attorneys for Respondent.

James J. Haas, Maricopa County Public Defender by Tracy Friddle, Deputy Public Defender, Amy Kalman, Deputy Public Defender, Phoenix, Attorneys for Petitioner.



¶ 1 Melvin Omar Hernandez ("Petitioner"), filed a special action challenging Proposition 100, a recent amendment to the bail provisions of Article 2, Section 22(A) of the Arizona Constitution. For the reasons discussed below, we accept jurisdiction and deny relief.


¶ 2 Article 2, Section 22(A) of the Arizona Constitution sets forth several exceptions to the general presumption that persons charged with crimes are entitled to bail. Proposition 100, which was passed in the November 2006 election, added an exception for "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." Several months earlier, the Legislature passed a conditional amendment to Arizona Revised Statutes ("A.R.S.") section 13-3961(A)1 (Supp.2006), which provided the following:

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 and the offense charged is either:

. . . .

5. A serious felony offense if the person has entered or remained in the United States illegally. For the purposes of this paragraph, "serious felony offense" means any class 1, 2, 3 or 4 felony or any violation of § 28-1383 [aggravated driving under the influence of drugs or alcohol].

The amendment became effective upon the electorate's approval of Proposition 100. See 2006 Ariz. Sess. Laws, ch. 380, § 3 (2nd Reg.Sess).

¶ 3 On March 17, 2007, after placing Petitioner under arrest for possessing an open container of alcohol within the passenger compartment of a motor vehicle, police found a social security card and a resident alien card in Petitioner's wallet. See A.R.S. §§ 4-251(A)(2) (2006) (open container). Noticing "several discrepancies" on both cards, police conducted a records check on the social security number and found that it was not assigned to Petitioner. After he was Mirandized Petitioner admitted that the cards were forged, that he had purchased them for $5,000, and that he had procured them in order to work and buy food.

¶ 4 The State charged Petitioner with two counts of knowingly possessing forged instruments with intent to defraud, a class 4 felony. A.R.S. § 13-2002(A)(2) (2006). Petitioner was released on his own recognizance after an initial appearance hearing on March 17, 2007. On April 3, 2007, however, the Arizona Supreme Court issued Administrative Order No.2007-30, which directed the superior courts to implement Proposition 100 and A.R.S. § 13-3961(A)(5) (hereinafter referred to collectively as "Proposition 100").2 Accordingly, at Petitioner's preliminary hearing, which he attended voluntarily, the court considered whether Petitioner was entitled to bail under the new law. Based on the evidence presented by the State, the trial court concluded that Proposition 100 rendered Petitioner ineligible for bail.

¶ 5 Petitioner then filed the instant special action, but later pled guilty to solicitation to commit forgery, a class 6 felony, and was placed on probation for one year, making Proposition 100 moot to his case. One condition of Petitioner's probation was that he "[n]ot remain in or return to the United States illegally if deported or processed through voluntary departure."


¶ 6 We accept jurisdiction of this special action to determine whether a denial of bail pursuant to Proposition 100 is unconstitutional. Ariz. R.P. Spec. Act. 1(a); Simpson v. Owens, 207 Ariz. 261, 265-66, ¶ 13, 85 P.3d 478, 482-83 (App.2004). We do so because the constitutionality of Proposition 100 is an "issue that will be presented again; an issue of public notability; an issue of statewide significance; [and] an issue unresolved by the appellate court." Simpson, 207 Ariz. at 265-66, ¶ 13, 85 P.3d at 482-83; State ex rel. Romley v. Rayes, 206 Ariz. 58, 60, ¶ 5, 75 P.3d 148, 150 (App.2003). We find these reasons appropriate to accept jurisdiction over this special action even though Petitioner's subsequent plea rendered this matter moot as to him. See Simpson, 207 Ariz. at 265, ¶ 13, 85 P.3d at 482 (even if bail issue becomes moot, we may nonetheless consider "an issue of great public importance or an issue capable of repetition yet evading review") (citing Phoenix Newspapers, Inc. v. Molera, 200 Ariz. 457, 460, ¶ 12, 27 P.3d 814, 817 (App.2001)).


¶ 7 In light of Petitioner's plea, we will not address issues raised by him that are now moot, such as whether the State presented sufficient evidence of his residency status or whether Proposition 100 was unconstitutional "as applied" to the circumstances of his case. Further, we will not consider any issue that depends upon the facts of an individual case. See also Pacific Legal Found. v. Cal. Coastal Comm'n, 33 Cal.3d 158, 188 Cal.Rptr. 104, 655 P.2d 306, 314 (1982) ("Judicial decision-making is best conducted in the context of an actual set of facts . . ."). Such fact-specific issues must abide future decisions. Instead, we will resolve the following issues that do not depend upon specific facts, yet are of statewide importance and likely to recur:

1) Whether Proposition 100 applies to those persons who have entered or remained in the United States illegally but are now lawful residents; and

2) Whether Proposition 100 is facially unconstitutional under either the Equal Protection or Due Process Clauses of the United States Constitution.3


¶ 8 In reviewing a challenge to an amendment to the Constitution, a court is obliged to effectuate the intent of those who framed the provision and, in the case of a [constitutional referendum], the intent of the electorate that adopted it. Calik v. Kongable, 195 Ariz. 496, 498, ¶ 10, 990 P.2d 1055, 1057 (1999) (citation omitted). A facial constitutional challenge requires an inquiry into whether the law itself is unconstitutional, not into whether the application of the law violates a particular individual's rights. See, e.g., Robinson v. City of Seattle, 102 Wash. App. 795, 10 P.3d 452, 458 (2000). In pursuing such an inquiry, we follow the standard set forth in United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), which held that to successfully challenge the facial validity of a regulation, the party challenging the provision must demonstrate that no circumstances exist under which the regulation would be valid. Phelps Dodge Corp. v. Ariz. Elec. Power Co-op., Inc., 207 Ariz. 95, 106, ¶ 29, 83 P.3d 573, 584 (App.2004) (citing Reno v. Flores, 507 U.S. 292, 301, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)).

¶ 9 We note, however, that critics of Salerno suggest adopting a less-restrictive standard: the large fraction test. This test is based on Planned Parenthood of Se. Pennsylvania v. Casey, which held that an abortion law is unconstitutional if, "in a large fraction of the cases in which [it] is relevant, it will operate as a substantial obstacle to a [recognized liberty interest]." 505 U.S. 833, 895, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); see also Planned Parenthood of S. Ariz. v. Lawall, 180 F.3d 1022, 1025 (9th Cir.1999) (Salerno formulation inapplicable to an abortion law); A Woman's Choice-East Side Women's Clinic v. Newman, 305 F.3d 684, 687 (7th Cir.2002); see also City of Chicago v. Morales, 527 U.S. 41, 55 n. 22, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (asserting that Salerno formulation has never been the decisive factor in any decision of this Court). But, despite the criticism of Salerno, it has never been expressly overruled by the United States Supreme Court.4 We therefore apply it in deciding whether Proposition 100 is facially unconstitutional.


¶ 10 We first address a central premise of Petitioner's facial constitutional challenge: the phrase entered or remained in the United States illegally as used in Proposition 100 encompasses all persons who have entered the United States illegally, or at one time remained here illegally, even if they have subsequently acquired lawful residency status or citizenship.

"Entered or Remained in the United States Illegally"

¶ 11 Petitioner argues that the phrase "entered or remained in the United States illegally" could be read to include persons who were once illegal aliens but have subsequently "legalized" their residency status, either by obtaining lawful permanent residency or United States citizenship.5 See, e.g., 8 U.S.C. §§ 1182, 1255. At oral argument the State asserted that, even assuming this interpretation was correct, it did not violate equal protection or due process. We, however, disagree with that interpretation. For the reasons discussed below, we conclude that the phrase "entered or remained in the United States illegally" does not encompass persons who enjoy lawful residency status or citizenship at the time they seek bail.

¶ 12 Petitioner correctly points out that the phrase "entered or remained in the United States illegally" is ambiguous because it could encompass any of the following: 1) persons who entered the country illegally and remain illegally; 2) persons who entered legally but remain illegally, e.g., aliens who violate the terms of their visas; and 3) persons who entered...

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    • United States
    • Arizona Court of Appeals
    • June 14, 2016
    ...I would find Arizona's provisions for denying bail constitutional.1 Simpson's bond does not deprive us of jurisdiction. See Hernandez v. Lynch, 216 Ariz. 469, 471, ¶ 6, 167 P.3d 1264 (App.2007). His criminal case is still pending, and if changed circumstances result in revocation of his bon......
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    ...Yet even these individuals were needlessly remanded into state custody following Proposition 100's passage.In Hernandez v. Lynch, 216 Ariz. 469, 167 P.3d 1264 (Ariz.Ct.App.2007), for example, police found a social security card and a resident alien card in Hernandez's wallet after arresting......
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    • October 15, 2014
    ...Yet even these individuals were needlessly remanded into state custody following Proposition 100's passage. In Hernandez v. Lynch, 216 Ariz. 469, 167 P.3d 1264 (Ariz.Ct.App.2007), for example, police found a social security card and a resident alien card in Hernandez's wallet after arrestin......
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1 books & journal articles
  • Windsor beyond marriage: due process, equality & undocumented immigration.
    • United States
    • William and Mary Law Review Vol. 55 No. 6, June - June 2014
    • June 1, 2014
    ...to address its constitutionality. (127.) See Lopez-Valenzuela v. Cnty. of Maricopa, 719 F.3d 1054 (9th Cir. 2013); Hernandez v. Lynch, 167 P.3d 1264 (Ariz. 2007). In addition to challenging the Arizona law on due process grounds, the petitioners in Lopez-Valenzuela raised constitutional pre......

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