Simpson v. Miller

• Decision Date: 09 February 2017
• Docket Number: No. CR–16–0227–PR,CR–16–0227–PR
• Parties: Jason Donald Simpson, a.k.a. Jason Donald Simpson, Sr., Petitioner, v. Honorable Phemonia Miller, Judge Pro Tempore 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. 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.
• Court: Arizona Supreme Court

241 Ariz. 341

387 P.3d 1270

Jason Donald Simpson, a.k.a. Jason Donald Simpson, Sr., Petitioner,

v.Honorable Phemonia Miller, Judge Pro Tempore 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.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.

No. CR–16–0227–PR

Supreme Court of Arizona.

Filed February 9, 2017

William G. Montgomery, Maricopa County Attorney, David R. Cole (argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Woodrow C. Thompson, Hannah H. Porter, Katherine E. Hollist, Gallagher & Kennedy, P.A., Phoenix; Hector J. Diaz, Andrea S. Tazioli, Quarles & Brady, LLP, Phoenix, Attorneys for Jason Donald Simpson

Jean–Jacques Cabou (argued), Alexis E. Danneman, Sarah R. Gonski, Perkins Coie, LLP, Phoenix; Brian F. Russo, Law Offices of Brian F. Russo, Phoenix, Attorneys for Joe Paul Martinez

Mark Brnovich, Arizona Attorney General, Eryn M. McCarthy, Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Superior Court in Maricopa County

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Rusty D. Crandell, Assistant Attorney General, Michael G. Bailey (argued), Assistant Attorney General, Phoenix, Attorneys for Amicus Curiae Arizona Attorney General; Robert L. Ellman, General Counsel, House of Representatives, Phoenix, Attorney for Amicus Curiae Speaker of Arizona House of Representatives; and Greg Jernigan, General Counsel, Arizona State Senate, Phoenix, Attorney for Amicus Curiae President of Arizona Senate

Kathleen E. Brody, American Civil Liberties Union Foundation of Arizona, Phoenix; Andrea Woods, Ezekiel Edwards, American Civil Liberties Union Foundation, Criminal Law Reform Project, New York, NY, Attorneys for American Civil Liberties Union and American Civil Liberties Union of Arizona; and Anne Chapman, Mitchell Stein Carey, PC, Phoenix, Attorneys for Amicus Curiae National Association of Criminal Defense Lawyers

Mikel P. Steinfeld, Maricopa County Public Defender's Office, Phoenix, and David J. Euchner, Pima County Public Defender's Office, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice, et al.

Colleen Clase, Jessica Gattuso, Eric Aiken, Scottsdale, Arizona Voice for Crime Victims; Jamie Balson, Arizona Coalition to End Sexual & Domestic Violence, Phoenix, Attorneys for D.D. and D.L.

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and TIMMER joined.

JUSTICE BOLICK, opinion of the Court:

¶ 1 Arizona's Constitution and laws forbid bail for defendants accused of sexual conduct with a minor under age fifteen when the proof is evident or the presumption great that the defendant committed the crime. Because that prohibition is not narrowly focused to protect public safety, we hold that it violates the Fourteenth Amendment's due process guarantee.

I.

¶ 2 Article 2, section 22(A) of the Arizona Constitution's Declaration of Rights provides in part:

All persons charged with crime shall be bailable by sufficient sureties, except:

1. For capital offenses, sexual assault, sexual conduct with a minor under fifteen years of age or molestation of a child under fifteen years of age when the proof is evident or the presumption great.

¶ 3 The crimes of sexual assault, sexual conduct with a minor under age fifteen, and molestation of a child under age fifteen were added to capital offenses under section (A)(1) by the voters through Proposition 103 in 2002. The legislature codified the provisions of section (A)(1) in A.R.S. § 13–3961(A)(2)–(4).

¶ 4 The State charged Joe Paul Martinez with multiple sexual offenses, including sexual conduct with a minor under age fifteen, a class 2 felony under A.R.S. § 13–1405(B) and a dangerous crime against children under A.R.S. § 13–705(P)(1)(e). (After we granted review, Jason Donald Simpson accepted a plea agreement, making his case moot. We therefore focus on Martinez's case.) Martinez filed a petition to be released on bail. The trial court conducted an evidentiary hearing and concluded that the proof was evident or presumption great that Martinez committed sexual conduct with a minor under age fifteen, thus rendering him ineligible for bail pursuant to A.R.S. § 13–3961(A)(3). He has been held in custody without bail since April 2014.

¶ 5 Martinez unsuccessfully challenged the facial constitutionality of § 13–3961(A)(3) and the corresponding provision of the Arizona Constitution, article 2, section 22 (A)(1). Accepting special action jurisdiction and granting relief, the court of appeals, by a 2–1 vote, reversed, holding the provisions unconstitutional because an individualized determination of dangerousness is necessary to withhold bail. Simpson v. Miller , 240 Ariz. 208, 215 ¶ 22, 377 P.3d 1003, 1010 (App. 2016).

¶ 6 We granted review because the constitutional issue presented is one of first impression and statewide importance. See Brewer v. Burns , 222 Ariz. 234, 237 ¶ 8, 213 P.3d 671, 674 (2009). We have jurisdiction pursuant to article 6, section 5 of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 7 This case presents questions of law, which we review de novo. US West Commc'ns, Inc. v. Ariz. Corp. Comm'n , 201 Ariz. 242, 244 ¶ 7, 34 P.3d 351, 353 (2001). In a facial constitutional challenge, the party challenging the law must establish that it "is unconstitutional in all of its applications," a standard the United States Supreme Court characterizes as "exacting." City of Los Angeles v. Patel , ––– U.S. ––––, 135 S.Ct. 2443, 2451, 192 L.Ed.2d 435 (2015).

¶ 8 Reviewing a state constitutional provision under the United States Constitution requires great care. In our federalist system of dual sovereignty, states retain certain antecedent powers, including the power to protect their citizens from crime. See, e.g. , Puerto Rico v. Sanchez Valle , ––– U.S. ––––, 136 S.Ct. 1863, 1870–71, 195 L.Ed.2d 179 (2016) ; Gonzales v. Raich , 545 U.S. 1, 42, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (O'Connor, J., dissenting) ("The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens."). In that system, state constitutions are our basic charters of state governance. See John D. Leshy, The Making of the Arizona Constitution , 20 Ariz. St. L.J. 1, 4–5 (1988). Consequently, we strive whenever possible to uphold their provisions. Where the national and state constitutions conflict irreconcilably, however, the latter must yield under the Supremacy Clause. U.S. Const. art. VI, cl. 2 ; see also Ariz. Const. art. 2, § 3.

¶ 9 In this case, state interests of the highest order, advanced through article 2, section 22(A)(1), collide with the fundamental due process right to be free from bodily restraint. "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Rasmussen by Mitchell v. Fleming , 154 Ariz. 207, 215–16, 741 P.2d 674, 682–83 (1987) (quoting Union Pac. Ry. Co. v. Botsford , 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891) ). Thus, "[i]n our society liberty is the norm, and detention prior to trial ... is the carefully limited exception." United States v. Salerno , 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). At the same time, the United States Supreme Court has "repeatedly held that the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest." Id. at 748, 107 S.Ct. 2095.

¶ 10 Freedom from pretrial detention absent extraordinary circumstances traces to the common law, where the general rule was against pretrial incarceration and in favor of bail, except for capital crimes—an exception grounded in the belief that defendants in such cases would flee to save their lives. Simpson v. Owens , 207 Ariz. 261, 267 ¶ 18, 85 P.3d 478, 484 (App. 2004). At common law, there were two hundred capital crimes, which were reduced to twenty in the American colonies. Id. at 268 ¶ 19, 85 P.3d at 485. For capital defendants, bail could be denied "where the proof is evident or the presumption great" that the defendant committed the charged offense—language echoed in article 2, section 22(A) of the Arizona Constitution.

¶ 11 The right to bail in non-capital cases is rooted in American and Arizona law:

From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), ... federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.

Stack v. Boyle , 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (citing Hudson v. Parker , 156 U.S. 277, 285, 15 S.Ct. 450, 39 L.Ed. 424 (1895) ). The Eighth Amendment and article 2, section 15 of the Arizona Constitution also prohibit "excessive bail." And of course article 2, section 22(A) recognizes a right to bail subject to specified exceptions.

¶ 12 However, the right to bail does not arise from the Eighth Amendment itself. The Eighth Amendment derives from the English Bill of Rights Act, which "has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail." Carlson v. Landon , 342 U.S. 524, 545, 72 S.Ct. 525, 96 L.Ed. 547 (1952).

¶ 13 Thus, the "Eighth Amendment has not prevented Congress from defining the...