Morreno v. Brickner

• Decision Date: 02 May 2018
• Docket Number: No. CV-17-0193-SA,CV-17-0193-SA
• Citation: 416 P.3d 807
• Parties: James Felix MORRENO, Petitioner, v. The Honorable Nicole BRICKNER, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner, State of Arizona ex rel. William G. Montgomery, Maricopa County Attorney, Real Party in Interest.
• Court: Arizona Supreme Court

416 P.3d 807

James Felix MORRENO, Petitioner,

v. The Honorable Nicole BRICKNER, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Commissioner,State of Arizona ex rel. William G. Montgomery, Maricopa County Attorney, Real Party in Interest.

No. CV-17-0193-SA

Supreme Court of Arizona.

Filed May 2, 2018

James J. Haas, Maricopa County Public Defender, Brian Thredgold (argued), Timothy Sparling, Rachel A. Golubovich, Deputy Public Defenders, Phoenix, Attorneys for James Felix Morreno

William G. Montgomery, Maricopa County Attorney, Amanda M. Parker (argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Rusty D. Crandell, Assistant Solicitor General, Phoenix, Attorneys for Arizona Attorney General

VICE CHIEF JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, and JUSTICES BRUTINEL, TIMMER, and BOLICK joined. JUSTICE GOULD, joined by JUSTICE LOPEZ, dissented in part and concurred in the result.

VICE CHIEF JUSTICE PELANDER, opinion of the Court:

¶ 1 Article 2, section 22(A)(2), of the Arizona Constitution ("the On–Release provision") precludes bail "[f]or felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge." We hold that, on its face, the On–Release provision satisfies heightened scrutiny under the Fourteenth Amendment’s Due Process Clause.

I.

¶ 2 James Morreno was indicted for possession of marijuana and possession of drug paraphernalia, both felonies, in March 2016. After his initial appearance in that case, Morreno was released on his own recognizance. As a condition of his release, Morreno was ordered to "refrain from committing any criminal offense."

¶ 3 In May, the police received reports of a suspicious person and contacted Morreno. He admitted possessing marijuana and a marijuana pipe and was again charged with felony possession of marijuana and possession of drug paraphernalia. His initial appearance in that case was scheduled for July, but Morreno failed to appear and an arrest warrant was issued.

¶ 4 Morreno was arrested in 2017 and held without bail pursuant to the On–Release provision. Relying on Simpson v. Miller (Simpson II ), 241 Ariz. 341, 387 P.3d 1270 (2017), he moved to modify his release conditions and argued that the On–Release provision was facially invalid because it deprived him of a pre-detention individualized determination of future dangerousness to which he was constitutionally entitled. The superior court disagreed and denied the motion.

¶ 5 Morreno filed a petition for special action, which the court of appeals stayed pending this Court’s decision on whether to grant review in a similar case. Thereafter, Morreno filed a petition for review in this Court challenging the superior court’s ruling and the court of appeals’ stay order.

¶ 6 Although Morreno has since pleaded guilty to the charged offenses in both cases (rendering his constitutional challenge moot as applied to him), we granted review to address the facial constitutionality of the On–Release provision, a recurring issue of statewide importance. We have jurisdiction under article 6, section 5(3), of the Arizona Constitution.

II.

¶ 7 We review de novo the validity of the On–Release provision. See Simpson II , 241 Ariz. at 344 ¶ 7, 387 P.3d at 1273.

¶ 8 In 1970, Arizona voters passed Proposition 100, and thereby amended the state constitution, adding among other things the On–Release provision. See Ariz. Const. art. 2, § 22 (A)(2); see also Ariz. Sec’y of State, Referendum and Initiative Publicity Pamphlet 2–4 (1970), http://azmemory.azlibrary.gov/cdm/compoundobject/collection/statepubs/id/10654. Under that provision, a defendant charged with a felony allegedly committed while "already admitted to bail on a separate felony charge" is ineligible for bail "where the proof is evident or the presumption great as to the [new] charge." Ariz. Const. art. 2, § 22 (A)(2). A defendant like Morreno who was released on his own recognizance on a prior charge "has been ‘admitted to bail’ for purposes of [the On–Release provision]." Heath v. Kiger , 217 Ariz. 492, 493 ¶ 1, 176 P.3d 690, 691 (2008).

¶ 9 Throughout the briefing in this Court and below, Morreno framed his argument as a facial challenge to the On–Release provision. At oral argument in this Court, Morreno initially confirmed that position before contending that the provision is unconstitutional as applied to him. We consider only the facial challenge because Morreno’s guilty plea renders moot any as-applied challenge.¹

III.

¶ 10 Morreno’s challenge to the On–Release provision requires us to revisit the delicate balance between "state interests of the highest order" and "the fundamental due process right to be free from bodily restraint." Simpson II , 241 Ariz. at 345 ¶ 9, 387 P.3d at 1274.

¶ 11 Our court of appeals has upheld and applied the On–Release provision against constitutional attack. See State ex rel. Romley v. Superior Court , 185 Ariz. 160, 164, 913 P.2d 500, 504 (App. 1996) (ordering the defendant "to be held without bond pending trial" when proof was evident and presumption great that he committed a felony while released on bail on prior charge); State v. Garrett , 16 Ariz. App. 427, 429, 493 P.2d 1232, 1234 (1972) (same, and finding the On–Release provision’s purpose and policy "entirely reasonable"). Morreno argues that those cases do not survive Simpson II and that the On–Release provision "deprives defendants of due process because it fails to comport with" our opinion in that case. Under Simpson II , he contends, bail "cannot be denied without a showing of [future] dangerousness following an individualized adversarial hearing" under A.R.S. § 13–3961(D), and not before considering various factors such as those set forth in A.R.S. § 13–3967(B). The State, in contrast, argues that the On–Release provision is constitutional under Simpson II because it is "not offense-based," but is instead "status-based" and narrowly focused on "recidivistic tendencies."

¶ 12 Before evaluating these arguments, we first address the Attorney General’s assertion that " Simpson II was incorrect" and should be overruled "to the extent that it misapplies the facial challenge and substantive due process tests from United States v. Salerno , 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)." Echoing an argument we rejected in Simpson II , the Attorney General contends that this Court misapplied the standard for evaluating facial challenges and erroneously pronounced a "heightened scrutiny standard for due process challenges to bail restrictions." Justice Gould’s partial dissent mirrors those contentions, with which we disagree.

¶ 13 In Simpson II , we applied a "heightened scrutiny" standard derived from Salerno to hold that the Fourteenth Amendment’s Due Process Clause prohibits the state from automatically denying bail to all defendants charged with sexual conduct with a minor under age fifteen. Simpson II , 241 Ariz. at 344 ¶ 1, 348 ¶ 23, 387 P.3d at 1273, 1277 (1972). In so holding, this Court invalidated the no-bail provisions in article 2, section 22(A)(1), of the Arizona Constitution and A.R.S. § 13–3961(A)(3) as they related to that charged offense, and we rejected the State’s argument that "the challenged provisions [were not] unconstitutional on their face because they may not be unconstitutional in all instances." Simpson II , 241 Ariz. at 349 ¶ 31, 387 P.3d at 1278.

¶ 14 In Simpson II , we recognized that a party challenging a law as facially unconstitutional "must establish that it ‘is unconstitutional in all of its applications.’ " 241 Ariz. at 344–45 ¶ 7, 387 P.3d at 1273–74 (quoting City of Los Angeles v. Patel , ––– U.S. ––––, 135 S.Ct. 2443, 2451, 192 L.Ed.2d 435 (2015) ); see also Salerno , 481 U.S. at 745, 107 S.Ct. 2095 (stating that a successful facial challenge requires "the challenger [to] establish that no set of circumstances exists under which the [law] would be valid"). We also recognized that in some instances the commission of sexual conduct with a minor "may indicate a threat of future dangerousness toward the victim or others." Simpson II , 241 Ariz. at 349 ¶ 31, 387 P.3d at 1278. That was not determinative, however, because the offense of sexual conduct with a minor "is not inherently predictive of future dangerousness," and therefore "detention [in those cases] requires a case-specific inquiry." Id.

¶ 15 Simpson II does not contradict Salerno or the other cases on which the Attorney General and Justice Gould’s dissent rely. Salerno rejected a facial challenge to the 1984 Bail Reform Act because of its "extensive safeguards," which required not only a showing of probable cause for the charged offense, but also a showing "by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person." 481 U.S. at 750, 752, 107 S.Ct. 2095 (citing 18 U.S.C. § 3142(f) ). The provisions at issue in Simpson II , in contrast, lacked any such safeguards and by their terms categorically denied bail to all defendants charged with sexual conduct with a minor under age fifteen—a crime that does not inherently predict future dangerousness. 241 Ariz. at 349 ¶ 27, 387 P.3d 1270. Thus, a facial challenge succeeded because the no-bail provisions deprived such defendants of what substantive due process requires: an individualized determination of, or a valid proxy for, future dangerousness. Id. ¶ 30.

¶ 16 That some defendants who are charged with sexual conduct with a minor may properly be denied bail when other facts are present (i.e., evidence of future dangerousness or flight risk) does not defeat a facial challenge. See id. ¶ 31 (noting that in arguing against a facial challenge, the State "confus[ed] the constitutionality of...