Soto v. Superior Court In and For County of Maricopa (State ex rel. Romley)

• Decision Date: 15 July 1997
• Docket Number: No. 1,CA-SA,1
• Citation: 190 Ariz. 450,949 P.2d 539
• Parties: , 247 Ariz. Adv. Rep. 45 Pablo Cuen SOTO, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Ronald S. Reinstein, Respondent Judge, The STATE of Arizona, ex rel. Richard ROMLEY, Maricopa County Attorney, Real Party In Interest. 97-0059.
• Court: Arizona Court of Appeals

Page 539

949 P.2d 539

190 Ariz. 450, 247 Ariz. Adv. Rep. 45

Pablo Cuen SOTO, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Ronald S. Reinstein, Respondent Judge The STATE of Arizona, ex rel. Richard ROMLEY, Maricopa County Attorney, Real Party In Interest.

No. 1 CA-SA 97-0059.

Court of Appeals of Arizona Division 1, Department A.

July 15, 1997.

Review Denied Jan. 21, 1998. ^*

Grant Woods, Arizona Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Christine M. Powell, Assistant Attorney General and Richard Romley, Maricopa County Attorney by Terry Jennings and Diane E.W. Gunnels, Deputy County Attorneys, Phoenix, for Real Parties in Interest.

Dean W. Trebesch, Maricopa County Public Defender by Helene F. Abrams and Vonda F. Wilkins, Deputy Public Defenders, Phoenix, for Petitioner.

OPINION

RYAN, Judge.

Fifteen-year-old Pablo Soto ("Soto") is charged with three counts of sexual assault, class 2 felonies. Soto petitioned for special action relief from his automatic transfer to superior court under Proposition 102's amendments to the Arizona Constitution. In an earlier order, we accepted jurisdiction and denied relief. This opinion explains that order.

This is a case of first impression and the issues raised are purely legal ones likely to recur and to affect large numbers of juvenile defendants. We therefore accept jurisdiction. See JV-111701 v. Superior Ct., 163 Ariz. 147, 149, 786 P.2d 998, 1000 (App.1989). Because we find that Proposition 102 is valid and its provisions apply to the crimes charged, we deny relief.

We also consider Soto's petition for relief from the superior court's imposition of $9600 bail. We deny relief because we find meritless Soto's argument that imposition of bail in any amount would be unconstitutional.

BACKGROUND

Proposition 102, The Juvenile Crime Initiative

On November 5, 1996, a majority of Arizona voters approved Proposition 102, "The Juvenile Crime Initiative," amending the Arizona Constitution by adding article 4, part 2, section 22. The votes were canvassed and certified on November 25, and Governor Symington signed the measure into law on December 6, 1996. Among other things, the measure divests the juvenile court of jurisdiction over juveniles fifteen years of age or older who are "accused of murder, forcible sexual assault, armed robbery or other violent felony offenses as defined by statute." ARIZ. CONST. art. 4, pt. 2, § 22(1) (eff.Dec. 6, 1996). Such juveniles are instead automatically transferred to superior court to be tried on those charges as adults.

Charges Against Soto

On December 18, 1996, Soto and a co-defendant were indicted on three counts of sexual assault committed on December 6 in violation of Arizona Revised Statutes Annotated ("A.R.S.") sections 13-1406 and -1401. The pleadings allege that Soto admitted holding the victim down by her shoulders so she could not resist the sexual assault. Thus, the State maintains that Soto committed forcible sexual assault and thereby triggered Proposition 102's mandatory transfer provision.

Soto moved to dismiss the charges on grounds that the constitutional amendments effected by Proposition 102 were invalid and the charge against Soto, "forcible sexual assault," was not a cognizable statutory crime. The trial court denied the motion.

The court set bond at $9600. Soto requested a modification of the release order, then moved for third party release; the court denied both motions. At the hearing, defense counsel suggested that Arizona Department of Economic Security ("ADES"), as Soto's guardian, "look into posting that bond." The ADES representative told the court that no statutory provision allowed ADES to post bond, and therefore none would be posted on Soto's behalf. Consequently, Soto contends that he effectively has been denied bail or assessed excessive bail in violation of the United States and Arizona Constitutions.

ISSUES

We decide three issues in this special action:

1. whether Proposition 102 properly became law even though the Governor was absent from the state when the votes were canvassed and did not proclaim the measure to be law until thirty-one days after the election;

2. whether "forcible sexual assault" is a cognizable crime triggering the automatic transfer provision of Proposition 102; and

3. whether Soto is being held in violation of the United States and Arizona Constitutions because, as an indigent ward of the state, neither he nor ADES can post any amount of bail to secure his release.

DISCUSSION

I. Proposition 102 Properly Became Law

A. Canvassing of Votes Was Legally Conducted

To proclaim an initiative proposition as law, Arizona requires

the secretary of state, in the presence of the governor and the chief justice of the supreme court, to canvass the votes for and against each such measure or proposed amendment to the constitution within thirty days after the election, and upon the completion of the canvass the governor shall forthwith issue a proclamation, giving the whole number of votes cast for and against each measure or proposed amendment, and declaring such measures or amendments as are approved by a majority of those voting thereon to be law.

ARIZ. CONST. art. 4, pt. 1, § 1(13). Minutes from the Constitutional Convention of 1910 are silent as to the rationale for this provision. See THE RECORDS OF THE ARIZONA CONSTITUTIONAL CONVENTION OF 1910 (John S. Goff, ed., 1991). Overall, the initiative provisions adopted by the framers of the constitution "were intended to give a populist direction to the Arizona government," that is, to allow the majority of the electorate to pass desired legislation. See generally Gordon Morris Bakken, The Arizona Constitutional Convention of 1910, 1978 ARIZ. ST. L.J. 1, 13 (1978). This is precisely what happened in November 1996 when the Arizona electorate voted 844,922 to 496,720 to adopt Proposition 102.

Soto first challenges Proposition 102 on procedural grounds, claiming that Governor Symington's absence from the state while the votes were canvassed renders the measure invalid. We find no support for assigning such a drastic result to the procedure used here.

When the governor is absent from the state, "the powers and duties of the office of Governor shall devolve upon" the secretary of state. ARIZ. CONST. art. 5, § 6. On November 25, 1996, therefore, Secretary of State Jane D. Hull assumed the role of Acting Governor during the final canvassing of votes. See State ex rel. DeConcini v. Garvey, 67 Ariz. 304, 308-09, 195 P.2d 153, 155-56 (1948) (finding official acts performed by Secretary of State in Governor's absence valid); McCluskey v. Hunter, 33 Ariz. 513, 518-19, 266 P. 18, 20 (1928) (acts of Secretary of State in Governor's absence are "just as valid and binding" as though performed by Governor himself). Additionally, there is nothing in the constitution prohibiting the secretary of state from serving in both positions simultaneously in this situation.

Moreover, there is no dispute over the validity of the final count or the fact that voters overwhelmingly approved the measure. The canvassing was completed well within the thirty-day period specified by law. See ARIZ. CONST. art. 4, pt. 1, § 1(13).

B. Proclamation of the Law Was Timely

Soto's second challenge to Proposition 102's validity criticizes the fact that Governor Symington waited eleven days after the votes were canvassed to proclaim the measure to be law. Soto argues that the Governor should have proclaimed the law "immediately" to comply with the constitutional mandate that

the governor shall forthwith issue a proclamation ... declaring such measures or amendments as are approved by a majority of those voting thereon to be the law.

Id. (emphasis added). Soto cites Western Devcor, Inc. v. City of Scottsdale, 168 Ariz. 426, 814 P.2d 767 (1991), to support his contention that the "delay" renders the measure invalid because the legislative process requires strict compliance with constitutional mandates. We find no merit in Soto's argument.

First, "forthwith" has been defined in Arizona in terms of reasonableness. See, e.g., State v. Shaw, 93 Ariz. 40, 49, 53 & n. 2, 378 P.2d 487, 493, 495-96 & n. 2 (1963) ("earliest reasonable opportunity" and "no unreasonable length of time ... before performance"); State v. McEuen, 42 Ariz. 385, 397, 26 P.2d 1005, 1009 (1933) ("with as much speed as is reasonably possible under the circumstances"); see also Black's Law Dictionary 782 (4th ed. rev.1968) ("[i]mmediately; without delay, directly, hence within a reasonable time under the circumstances of the case; promptly and with reasonable dispatch") (emphasis added). An eleven-day period from the time the votes were canvassed in late November to the day the measure was proclaimed law is not unreasonable.

Second, Soto misstates the premise of Western Devcor. That case holds that "substantial," not strict, compliance is required "in the initiative context." 168 Ariz. at 428, 814 P.2d at 769; accord Barry v. Alberty, 173 Ariz. 387, 389, 843 P.2d 1279, 1281 (App.1992) ("Initiative measures require 'substantial' compliance with requirements of the law, but not necessarily 'technical' compliance.") (citation omitted). An eleven-day period constitutes "substantial compliance" with the command to proclaim the law "forthwith."

Further, as the trial court noted in its minute entry denying Soto's motion to dismiss, even if Soto correctly defined "forthwith" as "immediately," nothing in the constitution or the implementing statutes specifies an appropriate consequence for lack of immediacy. See ARIZ. CONST. art. 4, pt. 1, § 2 ("The Legislature shall provide a penalty for any wilful violation of any of the provisions of the preceding section [§ 1]."). Compare, e.g., A.R.S. §§ 19-114.01 (designating payment or receipt of payment to sign petition as class 1 misdemeanor), -115 (unlawfully signing...