Simpson v. Owens

• Decision Date: 26 February 2004
• Docket Number: No. 1 CA-SA 03-0188.,1 CA-SA 03-0188.
• Parties: Jason Donald SIMPSON, Sr., Petitioner, v. The Honorable Bernard OWENS, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, the Honorable Randy Ellexson, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judges, State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

85 P.3d 478

207 Ariz. 261

Jason Donald SIMPSON, Sr., Petitioner, v. The Honorable Bernard OWENS, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, the Honorable Randy Ellexson, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judges, State of Arizona, Real Party in Interest.

No. -0188.

Court of Appeals of Arizona, Division 1, Department E.

February 26, 2004.

Quarles & Brady Streich Lang, LLP by Darrow K. Soll and John R. Sandweg and Gallagher & Kennedy, P.A. by Barry D. Mitchell, Phoenix, Attorneys for Petitioner.

Richard M. Romley, Maricopa County Attorney By Patricia A. Nigro, Deputy County Attorney, Phoenix, Attorneys for Real Party in Interest.

James J. Haas, Maricopa County Public Defender By Michelle Lawson, Deputy Public Defender, Phoenix, Amicus Curiae.

OPINION

EHRLICH, Judge.

¶ 1 Jason Donald Simpson, Sr., petitioned this court to accept jurisdiction of his special action, claiming that he was entitled to a "full and adversarial bail hearing" and to bail pending his trial for certain sexual offenses against children. We accepted jurisdiction and granted substantial relief in an earlier order.

¶ 2 Simpson generally contends that he was illegally held in pre-trial detention without bail. Essentially he is asking this court to clarify the means of execution of Article 2, Section 22 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") § 13-3961(A) (2001 & Supp.2003) (eff. Nov.25, 2002) (together referred to by the statutory citation). We address three issues:

(1) whether due process required that Simpson be given a bail hearing pursuant to Article 2, Section 22 of the Arizona Constitution and A.R.S. § 13-3961(A);

(2) whether the State was obligated to prove at a full and adversarial bail hearing that the "proof is evident or the presumption great" that Simpson committed those charged offenses at issue by clear and convincing evidence before he could be denied bail; and

(3) whether Simpson should have been allowed bail pending a full and adversarial bail hearing.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 At the November 2002 general election, Arizona voters passed ballot Proposition 103 amending Article 2, Section 22 of the Arizona Constitution and A.R.S. § 13-3961. Prior to that amendment, Article 2, Section 22(1) of the Arizona Constitution declared:

All persons charged with [a] crime shall be bailable by sufficient sureties, except for:

1. Capital offenses when the proof is evident or the presumption great.

See also A.R.S. § 13-3961(A) (2001) ("A person in custody shall not be admitted to bail if the proof is evident or the presumption great that he is guilty of the offense and the offense charged is a capital offense."). Proposition 103 added to the charge of a capital offense the charges of sexual assault, sexual conduct with a minor who is less than fifteen years of age and molestation of a child who is less than fifteen years of age. See 2002 ARIZ. SESS. LAWS, Ch. 219 § 21, Ch. 223 § 1.

¶ 4 On July 5, 2003, the Peoria Police Department was told that there was child pornography on Simpson's computer. Officers seized the computer and a videotape that purportedly depicts Simpson engaging in sexual activity with a minor girl. Simpson was charged with several offenses, including intentionally or knowingly engaging in sexual intercourse or oral sexual contact with a minor less than fifteen years of age.

¶ 5 At Simpson's initial appearance, the prosecutor cited A.R.S. § 13-3961(A) and requested that Simpson be denied bail because "the proof is evident or the presumption great" that Simpson had committed the charged crimes. No evidence was presented,¹ but the prosecutor avowed that (1) an experienced forensic pediatrician had viewed the videotape and determined, through Tanner Staging,² that one of the girls shown in the video was less than age fifteen, (2) the same pediatrician had examined downloaded computer images and concluded, also through Tanner Staging, that at least some of the images depicted children less than age fifteen, (3) a detective had viewed the images and determined that they contained images of children less than age fifteen and (4) Simpson was a flight risk because he had hidden cash and was facing consecutive sentences if convicted as charged. Simpson disputed the prosecutor's assertion that Tanner Staging had been appropriately used.

¶ 6 The court commissioner found the presumption great and the proof evident that Simpson had committed the charged offenses, and therefore refused to set bail. Simpson insisted that A.R.S. § 13-3961(A) contemplated an evidentiary hearing, but his motion for reconsideration was denied.

¶ 7 Simpson then was indicted for multiple counts of sexual exploitation of a minor, an offense not encompassed by A.R.S. § 13-3961(A). The superior court set bail at $250,000 and ordered Simpson to appear for arraignment. After Simpson posted a bond, he was released.

¶ 8 At the arraignment, the commissioner ordered that Simpson could remain released. Simpson was alerted, however, that he was going to be arrested on similar charges immediately after his arraignment.

¶ 9 Simpson surrendered and made another initial appearance. He was charged with intentionally or knowingly engaging in sexual intercourse or oral sexual contact with a minor less than fifteen years of age and other offenses. The prior indictment was dismissed.

¶ 10 The record before us is incomplete, but it appears that the commissioner relied solely upon the prosecutor's avowals and a one-page summary of the allegations and that Simpson was not permitted to challenge the allegations through any meaningful process. Simpson requested a bail hearing, but it was denied, and Simpson was jailed.

¶ 11 Simpson filed a petition for special action in this court.³ He argues that Arizona voters intended that an evidentiary hearing be held regarding whether the proof is evident or the presumption great that the accused committed the offenses charged before bail can be denied.

¶ 12 A court must "effectuate the intent of those who framed the provision and, in the case of [a referendum], the intent of the electorate that adopted it." Calik v. Kongable, 195 Ariz. 496, 498 ¶ 10, 990 P.2d 1055, 1057 (1999) (quoting Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994)). If the meaning of the proposition is not clear, the court considers the history of the provision, its purpose and the "evil" intended to be remedied. Jett, 180 Ariz. at 119, 882 P.2d at 430. In Proposition 103, the voters made clear that, for certain offenses, bail would be denied after a hearing for which the standard would be that the proof be evident or the presumption great that the accused had committed the crimes charged. We conclude in turn that due process requires that a full and adversarial evidentiary hearing be conducted as described below.

DISCUSSION

I. Jurisdiction

¶ 13 We exercised our discretion in favor of accepting jurisdiction. State ex rel. McDougall v. Super. Ct., 186 Ariz. 218, 219-20, 920 P.2d 784, 785-86 (App.1996) (The acceptance of jurisdiction is within the discretion of this court.). Having been denied bail when he filed his Petition for Special Action, Simpson had no "equally plain, speedy [or] adequate remedy by appeal." ARIZ. R.P. SPEC. ACT. 1(a); State ex rel. Romley v. Rayes, 206 Ariz. 58, 60 ¶ 5, 75 P.3d 148, 150 (App.2003). Although Simpson has now been allowed bail, making his question a moot issue that we usually would not consider, Contempo-Tempe Mobile Home Owners Ass'n v. Steinert, 144 Ariz. 227, 229, 696 P.2d 1376, 1378 (App.1985), we may continue to "consider an appeal that has become moot if there is either an issue of great public importance or an issue capable of repetition yet evading review." Phoenix Newspapers, Inc. v. Molera, 200 Ariz. 457, 460 ¶ 12, 27 P.3d 814, 817 (App.2001). The issue whether due process is being provided to an individual charged with the crimes enumerated in A.R.S. § 13-3961(A) meets the standards for accepting jurisdiction: no remedy or no adequate remedy by appeal; a constitutional issue that will be presented again; an issue of public notability; an issue of statewide significance; an issue unresolved by the appellate court and with differing resolutions among the superior courts, and, therefore, a matter of judicial economy to resolve. See Rayes, 206 Ariz. at 60

¶ 5, 75 P.3d at 150; Arizona Dep't of Pub. Safety v. Super. Ct., 190 Ariz. 490, 493-94, 949 P.2d 983, 986-87 (App.1997). Accordingly, we accepted jurisdiction.

II. Constitutional Guarantees

¶ 14 In support of his argument that he is entitled to bail, Simpson invokes the federal and Arizona constitutional prohibitions against excessive bail. U.S. CONST. amend. VIII; ARIZ. CONST. art. 2, § 15. The United States Supreme Court has rejected this connection:

The bail clause was lifted with slight changes from the English Bill of Rights [of 1689]. In England that clause 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) (citing 1 Wm. & Mary Sess. 2, c. II, § I(10); other citation omitted); see Rendel v. Mummert, 106 Ariz. 233, 235-37, 474 P.2d 824, 826-28 (1970)

; Rayes, 206 Ariz. at 61 ¶ 9, 75 P.3d at 151; State v. Garrett, 16 Ariz.App. 427, 428, 493 P.2d 1232, 1233 (1972).⁴

¶ 15 There is a right to bail in Arizona except when "the proof is evident or the presumption great" that the accused has committed one of the offenses enumerated in A.R.S. § 13-3961(A). Rayes, 206 Ariz. at 61-62 ¶¶ 11-12, 75 P.3d at 151-52. Relying on this provision, Simpson contends that to deny him bail without a full and adversarial evidentiary hearing is to deprive him of liberty without due process contrary to the...