State ex rel. Romley v. Rayes

• Decision Date: 02 September 2003
• Docket Number: No. 1 CA-SA03-0152.,1 CA-SA03-0152.
• Citation: 206 Ariz. 58,75 P.3d 148
• Parties: STATE of Arizona ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. The Honorable Douglas RAYES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Adam Flath, Real Party in Interest.
• Court: Arizona Court of Appeals

75 P.3d 148

206 Ariz. 58

STATE of Arizona ex rel. Richard M. ROMLEY, Maricopa County Attorney, Petitioner, v. The Honorable Douglas RAYES, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Adam Flath, Real Party in Interest.

No. 1 CA-SA03-0152.

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

September 2, 2003.

Richard M. Romley, Maricopa County Attorney By Patricia A. Nigro, Deputy County Attorney, Phoenix, for Petitioner.

Robert L. Storrs, P.C. By Robert L. Storrs, Phoenix, for Real Party in Interest.

OPINION

PORTLEY, Judge.

¶ 1 Arizona voters approved Proposition 103 at the November 5, 2002, general election. Proposition 103 amended Article 2, Section 22, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") section 13-3961 (Supp.2002). The constitutional and statutory amendments added sexual assault, sexual conduct with a minor under fifteen years of age, and molestation of a child under fifteen years of age as offenses where bail can be denied when "the proof is evident or the presumption great" that the individual charged committed the offense. The amendments became effective on November 25, 2002, when the Governor proclaimed their adoption. Ariz. Const. art. 4, § 1(13). The primary question raised in this special action is whether the constitutional and statutory amendments violate the prohibition against ex post facto laws found in Article 1, Section 10, Clause 1, of the United States Constitution and Article 2, Section 25, of the Arizona Constitution. For the reasons explained herein, we accept special action jurisdiction and conclude that the amendments do not violate the ex post facto provisions of the state and federal constitutions.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On April 30, 2003, a grand jury returned a supervening indictment against Adam Flath alleging, among other charges, two counts of sexual conduct with a minor (referred to as Counts 8 and 9), both class 2 felonies and dangerous crimes against children. A.R.S. §§ 13-1405(B) (2001), 13-604.01(L)(1)(e) (Supp.2002). Counts 8 and 9 allegedly occurred between May 2000 and September 2000 and involved a then thirteen-year-old female. Following the return of the indictment, the trial court, relying on Article 2, Section 22, of the Arizona Constitution and A.R.S. § 13-3961, concluded that Flath was not bailable as to Counts 8 and 9.

¶ 3 Nonetheless, Flath, through counsel, petitioned the trial court to set a reasonable bail and any other conditions of release the trial court deemed necessary. Citing Gusick v. Boies, 72 Ariz. 233, 233 P.2d 446 (1951),¹ Flath asserted he had a constitutional right to bail on Counts 8 and 9 because the underlying acts allegedly occurred prior to the November 2002 amendments. He argued that retroactive application of the 2002 amendments violated the ex post facto provisions of the federal and state constitutions. The State objected to any modification to Flath's non-bailable status.

¶ 4 After taking the matter under advisement, the trial court granted the motion and ruled "that the elimination of the right to release prior to conviction [was] punitive in nature" and that the application of the November 2002 amendments to Flath "[was] a violation of the United States and Arizona Constitutions prohibition of Ex Post Facto laws." The State of Arizona seeks review of the trial court's ruling.

II. SPECIAL ACTION JURISDICTION

¶ 5 In an exercise of our discretion, we accept special action jurisdiction because the issue raised is one of first impression, a pure question of law, of statewide importance, and likely to arise again. See, e.g., Blake v. Schwartz, 202 Ariz. 120, 122, ¶ 7, 42 P.3d 6, 8 (App.2002). Moreover, the State does not have an equally plain, speedy, or adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a).

III. DISCUSSION

¶ 6 After the proclamation of Proposition 103, Article 2, Section 22(A), of the Arizona Constitution was revised to read:

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

1. 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.

Likewise, A.R.S. § 13-3961(A) was amended to provide that:

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:

1. A capital offense.

2. Sexual assault.

3. Sexual conduct with a minor who is under fifteen years of age.

4. Molestation of a child who is under fifteen years of age.

Since the trial court ruled that the amendments violated Flath's rights under the eighth amendment and violated the ex post facto prohibitions of both the state and federal constitutions, we review the court's ruling de novo. See, e.g., Herman v. City of Tucson, 197 Ariz. 430, 432, ¶ 5, 4 P.3d 973, 975 (App.1999) (issues of statutory interpretation and constitutionality are reviewed de novo).

A. EIGHTH AMENDMENT

¶ 7 The eighth amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII; see also Ariz. Const. art. 2, § 15 (affording analogous protection). Flath argues that bail is a substantive right, and that the constitutional and statutory amendments violate his right to bail. We disagree with both contentions.

¶ 8 Flath's first argument is based on dicta in State v. Klein, 147 Ariz. 77, 708 P.2d 758 (App.1985).² In Klein, this court considered whether a defendant was deprived of his right to bail as set forth under A.R.S. § 22-424. 147 Ariz. at 79,708 P.2d at 760. Section 22-424 required the police justice (currently known as a magistrate) to prepare a master bail schedule for certain traffic violations and allowed defendants charged with the designated traffic offenses to post bail without appearing before a magistrate. Id. at 80, 708 P.2d at 761. The State argued that Arizona Rule of Criminal Procedure 4.1 required a defendant be taken before a magistrate before bail is set and precluded the application of A.R.S. § 22-424. Id. at 81, 708 P.2d at 762. We rejected the State's argument, and stated:

Arizona Revised Statutes § 22-424 simply creates an exception to the general procedure prescribed by Rule 4.1. If Rule 4.1 were a statute, § 22-424 would control because it is the more specific. Even if we were to find the rule and the statute to be in conflict, the statute must govern where the matter concerns a substantive right. The right to release is certainly substantive, and even more so where the purpose of release is to obtain exculpatory evidence which will disappear very quickly with the passage of time.

Id. (citations omitted). Klein did not discuss or create an unfettered substantive right to bail under the eighth amendment. Instead, Klein determined that A.R.S. § 22-424 allowed certain defendants to be quickly released on bail, so they could attempt to secure independent proof of their sobriety. Id. Thus, we reject Flath's notion that Klein opined that the eighth amendment created a substantive right free from limitations.

¶ 9 Our supreme court has never ruled that the eighth amendment to the United States Constitution creates an absolute right to bail. In fact, our supreme court after reviewing Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952), unequivocally stated "there is no federal constitutional right to bail." Rendel v. Mummert, 106 Ariz. 233, 235-36, 474 P.2d 824, 826-27 (1970). It has allowed reasonable limits to be placed on bail to assure the appearance of the accused. State v. Cassius, 110 Ariz. 485, 488, 520 P.2d 1109, 1112 (1974); see also State v. Norcross, 26 Ariz.App. 115, 117, 546 P.2d 840, 842 (1976). In short, there is no absolute right to bail.

¶ 10 Next, Flath argues that denying bail solely on the classification of the offense alone, without a determination of individual eligibility for release, violates the eighth amendment. He cites Hunt v. Roth, 648 F.2d 1148 (8th Cir.1981), vacated as moot by Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982), wherein the United States Court of Appeals for the Eighth Circuit held "that Nebraska's classification of sexual offenses as nonbailable violate[d] the `excessive bail' clause of the eighth amendment to the Constitution of the United States." 648 F.2d at 1152. The "fatal flaw," according to the Hunt court, was that the Nebraska legislature "created an irrebuttable presumption that every individual charged with this particular offense is incapable of assuring his appearance by conditioning it upon reasonable bail or is too dangerous to be granted release." Id. at 1164. We find Hunt inapposite and reject its holding.

¶ 11 First, since Hunt was vacated, it has no precedential value. See, e.g., Wetherill v. Basham, 197 Ariz. 198, 202 n. 1, ¶ 8, 3 P.3d 1118, 1122 n. 1 (App.2000); Stephenson v. Nastro, 192 Ariz. 475, 480, ¶ 15, 967 P.2d 616, 621 (App.1998). Second, "the laws of other jurisdictions, while sometimes instructive, are not binding upon us." Bunker's Glass Co. v. Pilkington PLC, 202 Ariz. 481, 491, ¶ 40, 47 P.3d 1119, 1129 (App.2002). More importantly, the Proposition 103 amendments did not abolish bail for the enumerated offenses. A defendant still remains "bailable" as a matter of right for the newly listed offenses unless there is a judicial determination that "the proof is evident or the presumption great" that the person is guilty of the offense charged. Ariz. Const. art. 2, § 22; A.R.S. § 13-3961(A). Unlike the situation in Hunt, the amendments effectuated by Proposition 103 do not create an irrebuttable presumption that a person charged with a listed offense will be denied bail. See Hunt, 648 F.2d at 1164. Instead, the amendments...